REGISTRATION RIGHTS AGREEMENT
Exhibit
10.2
This
Registration Rights Agreement (this “Agreement”)
is
made and entered into as of July 13, 2005, among Xenomics, Inc., a Florida
corporation (the “Company”),
and
the purchasers signatory hereto (each such purchaser is a “Purchaser”
and all
such purchasers are, collectively, the “Purchasers”).
This
Agreement is made pursuant to the Securities Purchase Agreement, dated as of
the
date hereof among the Company and the Purchasers (the “Purchase
Agreement”).
The
Company and the Purchasers hereby agree as follows:
1.
Definitions
Capitalized
terms used and not otherwise defined herein that are defined in the Purchase
Agreement shall have the meanings given such terms in the Purchase
Agreement.
As used
in this Agreement, the following terms shall have the following
meanings:
“Advice”
shall
have the meaning set forth in Section 6(d).
“Effectiveness
Date”
means,
with respect to the initial Registration Statement required to be filed
hereunder, October 25, 2005 and, with respect to any additional Registration
Statements which may be required pursuant to Section 3(c), the 105th calendar
day following the date on which the Company first knows, or reasonably should
have known, that such additional Registration Statement is required hereunder;
provided,
however,
in the
event the Company is notified by the Commission that one of the above
Registration Statements will not be reviewed or is no longer subject to further
review and comments, the Effectiveness Date as to such Registration Statement
shall be the fifth Trading Day following the date on which the Company is so
notified if such date precedes the dates required above.
“Effectiveness
Period”
shall
have the meaning set forth in Section 2(a).
“Event”
shall
have the meaning set forth in Section 2(b).
“Event
Date”
shall
have the meaning set forth in Section 2(b).
“Filing
Date” means, with respect to the initial Registration Statement required
hereunder, the 30th calendar day following the Closing Date and, with
respect to any additional Registration Statements which may be required pursuant
to Section 3(c), the 30th day following the date on which the Company
first knows, or reasonably should have known that such additional Registration
Statement is required hereunder.
“Holder”
or
“Holders”
means
the holder or holders, as the case may be, from time to time of Registrable
Securities.
“Indemnified
Party”
shall
have the meaning set forth in Section 5(c) hereof.
“Indemnifying
Party”
shall
have the meaning set forth in Section 5(c) hereof.
“Losses”
shall
have the meaning set forth in Section 5(a).
“Proceeding”
means
an action, claim, suit, investigation or proceeding (including, without
limitation, an investigation or partial proceeding, such as a deposition),
whether commenced or threatened.
“Prospectus”
means
the prospectus included in a Registration Statement (including, without
limitation, a prospectus that includes any information previously omitted from
a
prospectus filed as part of an effective registration statement in reliance
upon
Rule 430A promulgated under the Securities Act), as amended or supplemented
by
any prospectus supplement, with respect to the terms of the offering of any
portion of the Registrable Securities covered by a Registration Statement,
and
all other amendments and supplements to the Prospectus, including post-effective
amendments, and all material incorporated by reference or deemed to be
incorporated by reference in such Prospectus.
“Registrable
Securities”
means,
as of the date in question, (i) all of the shares of Common Stock issuable
upon
conversion in full of the shares of Preferred Stock, (ii) all Warrant Shares,
(iii) any securities issued or issuable upon any stock split, dividend or other
distribution recapitalization or similar event with respect to the foregoing
and
(iv) any additional shares issuable in connection with any anti-dilution
provisions associated with the Preferred Stock and Warrants.
“Registration
Statement”
means
the registration statements required to be filed hereunder and any additional
registration statements contemplated by Section 3(c), including (in each case)
the Prospectus, amendments and supplements to such registration statement or
Prospectus, including pre- and post-effective amendments, all exhibits thereto,
and all material incorporated by reference or deemed to be incorporated by
reference in such registration statement.
“Rule
415”
means
Rule 415 promulgated by the Commission pursuant to the Securities Act, as such
Rule may be amended from time to time, or any similar rule or regulation
hereafter adopted by the Commission having substantially the same purpose and
effect as such Rule.
“Rule
424”
means
Rule 424 promulgated by the Commission pursuant to the Securities Act, as such
Rule may be amended from time to time, or any similar rule or regulation
hereafter adopted by the Commission having substantially the same purpose and
effect as such Rule.
2.
Shelf
Registration
(a)
On or prior to each Filing Date, the Company shall prepare and file with the
Commission a “Shelf” Registration Statement covering the resale of the
Registrable Securities on such Filing Date for an offering to be made on a
continuous basis pursuant to Rule 415. The Registration Statement shall be
on
Form S-3 (except if the Company is not then eligible to register for resale
the
Registrable Securities on Form S-3, in which case such registration shall be
on
another appropriate form in accordance herewith) and shall contain (unless
otherwise directed by the Holders) substantially the “Plan
of Distribution”
attached hereto as Annex
A.
Subject
to the terms of this Agreement, the Company shall use its commercially
reasonable efforts to cause the Registration Statement to be declared effective
under the Securities Act as promptly as possible after the filing thereof,
but
in any event prior to the applicable Effectiveness Date, and shall use its
commercially reasonable efforts to keep such Registration Statement continuously
effective under the Securities Act until the earliest of (i) the date that
is
two (2) years after the last day of the calendar month following the month
in
which the relevant Effective Date occurs, (ii) the date when the Holder may
sell
all Registrable Securities under Rule 144 without volume or other restrictions
or limits or (iii) the date the Holders no longer own any of the Registrable
Securities (the “Effectiveness
Period”).
The
Company shall immediately notify the Holders via facsimile or e-mail of the
effectiveness of the Registration Statement on the same day that the Company
receives notification of the effectiveness from the Commission.
(b)
If: (i) a Registration Statement is not filed on or prior to its Filing Date,
or
(ii) the Company fails to file with the Commission a request for acceleration
in
accordance with Rule 461 promulgated under the Securities Act, within five
Trading Days of the date that the Company is notified (orally or in writing,
whichever is earlier) by the Commission that a Registration Statement will
not
be “reviewed,” or not subject to further review, (iii) a Registration Statement
filed or required to be filed hereunder is not declared effective by the
Commission by its Effectiveness Date, or (iv) after the Effectiveness Date,
the
availability of the Registration and Prospectus is suspended for more than
60
days in any 12-month period (any such failure or breach being referred to as
an
“Event”,
and
for purposes of clause (i) or (iii) the date on which such Event occurs, or
for
purposes of clause (ii) the date on which such five Trading Day period is
exceeded being referred to as “Event
Date”),
then
in addition to any other rights the Holders may have hereunder or under
applicable law, on each such Event Date and on each monthly anniversary of
each
such Event Date (if the applicable Event shall not have been cured by such
date)
until the applicable Event is cured, the Company shall pay to each Holder an
amount in cash, as partial liquidated damages and not as a penalty, equal to
1%
of the aggregate purchase price paid by such Holder pursuant to the Purchase
Agreement for any Registrable Securities then held by such Holder. The partial
liquidated damages pursuant to the terms hereof shall apply on a daily pro-rata
basis for any portion of a month prior to the cure of an Event.
3.
Registration
Procedures
In
connection with the Company's registration obligations hereunder, the Company
shall:
(a)
Not
less
than four Trading Days prior to the filing of each Registration Statement or
any
related Prospectus or any amendment or supplement thereto (including any
document that
would
be
incorporated or deemed to be incorporated therein by reference), the Company
shall, (i) furnish to each Holder copies of all such documents proposed to
be
filed, which documents (other than those incorporated or deemed to be
incorporated by reference) will be subject to the review of such Holders, and
(ii) cause its officers and directors, counsel and independent certified public
accountants to respond to such inquiries as shall be necessary, in the
reasonable opinion of respective counsel to conduct a reasonable investigation
within the meaning of the Securities Act. The Company shall not file the
Registration Statement or any such Prospectus or any amendments or supplements
thereto to which the Holders of a majority of the Registrable Securities shall
reasonably object in good faith, provided that, the Company is notified of
such
objection, including the substance of such objection, in writing no later than
two Trading Days after the Holders have been so furnished copies of such
documents. Each Holder, severally and not jointly agrees to furnish to the
Company a completed Questionnaire in the form attached to this Agreement as
Annex B (a “Selling
Holder Questionnaire”)
not
less than ten Trading Days prior to the Filing Date.
(b)
(i)
Prepare and file with the Commission such amendments, including post-effective
amendments, to a Registration Statement and the Prospectus used in connection
therewith as may be necessary to keep a Registration Statement continuously
effective as to the applicable Registrable Securities for the Effectiveness
Period and prepare and file with the Commission such additional Registration
Statements in order to register for resale under the Securities Act all of
the
Registrable Securities; (ii) cause the related Prospectus to be amended or
supplemented by any required Prospectus supplement (subject to the terms of
this
Agreement), and as so supplemented or amended to be filed pursuant to Rule
424;
(iii) respond as promptly as reasonably possible to any comments received from
the Commission with respect to a Registration Statement or any amendment
thereto; and (iv) comply in all material respects with the provisions of the
Securities Act and the Exchange Act with respect to the disposition of all
Registrable Securities covered by a Registration Statement during the applicable
period in accordance (subject to the terms of this Agreement) with the intended
methods of disposition by the Holders thereof set forth in such Registration
Statement as so amended or in such Prospectus as so supplemented.
(c)
If
during
the Effectiveness Period, the number of Registrable Securities at any time
exceeds the number of shares of Common Stock then registered in a Registration
Statement, then the Company shall file as soon as reasonably practicable but
in
any case prior to the applicable Filing Date, an additional Registration
Statement covering the resale by the Holders of such additional Registrable
Securities.
(d)
Notify
the Holders of Registrable Securities to be sold (which notice shall, pursuant
to clauses (ii) through (vi) hereof, be accompanied by an instruction to suspend
the use of the Prospectus until the requisite changes have been made) as
promptly as reasonably possible (and, in the case of (i)(A) below, not less
than
five Trading Days prior to such filing) and (if requested by any such Person)
confirm such notice in writing no later than one Trading Day following the
day
(i)(A) when a Prospectus or any Prospectus supplement or post-effective
amendment to a Registration Statement is proposed to be filed; (B) when the
Commission notifies the Company whether there will be a “review” of such
Registration Statement and whenever the Commission comments in writing on such
Registration Statement; and (C) with
respect
to a Registration Statement or any post-effective amendment, when the same
has
become effective; (ii) of any request by the Commission or any other Federal
or
state governmental authority for amendments or supplements to a Registration
Statement or Prospectus or for additional information; (iii) of the issuance
by
the Commission or any other federal or state governmental authority of any
stop
order suspending the effectiveness of a Registration Statement covering any
or
all of the Registrable Securities or the initiation of any Proceedings for
that
purpose; (iv) of the receipt by the Company of any notification with respect
to
the suspension of the qualification or exemption from qualification of any
of
the Registrable Securities for sale in any jurisdiction, or the initiation
or
threatening of any Proceeding for such purpose; (v) of the occurrence of any
event or passage of time that makes the financial statements included in a
Registration Statement ineligible for inclusion therein or any statement made
in
a Registration Statement or Prospectus or any document incorporated or deemed
to
be incorporated therein by reference untrue in any material respect or that
requires any revisions to a Registration Statement, Prospectus or other
documents so that, in the case of a Registration Statement or the Prospectus,
as
the case may be, it will not contain any untrue statement of a material fact
or
omit to state any material fact required to be stated therein or necessary
to
make the statements therein, in light of the circumstances under which they
were
made, not misleading; and (vi) the occurrence or existence of any pending
corporate development with respect to the Company that the Company believes
may
be material and that, in the determination of the Company, makes it not in
the
best interest of the Company to allow continued availability of the Registration
Statement or Prospectus; provided that any and all of such information shall
remain confidential to each Holder until such information otherwise becomes
public, unless disclosure by a Holder is required by law; provided,
further,
notwithstanding each Holder’s agreement to keep such information confidential,
the Holders make no acknowledgement that any such information is material,
non-public information.
(e)
Use
its
commercially reasonable efforts to avoid the issuance of, or, if issued, obtain
the withdrawal of (i) any order suspending the effectiveness of a Registration
Statement, or (ii) any suspension of the qualification (or exemption from
qualification) of any of the Registrable Securities for sale in any
jurisdiction, at the earliest practicable moment.
(f)
Furnish
to each Holder, without charge, at its request, at least one conformed copy
of
each such Registration Statement and each amendment thereto, including financial
statements and schedules, all documents incorporated or deemed to be
incorporated therein by reference to the extent requested by such Person, and
all exhibits to the extent requested by such Person (including those previously
furnished or incorporated by reference) promptly after the filing of such
documents with the Commission.
(g)
Promptly
deliver to each Holder, without charge, as many copies of the Prospectus or
Prospectuses (including each form of prospectus) and each amendment or
supplement thereto as such Persons may reasonably request in connection with
resales by the Holder of Registrable Securities. Subject to the terms of this
Agreement, the Company hereby consents to the use of such Prospectus and each
amendment or supplement thereto by each of the selling Holders in connection
with the offering and sale of the Registrable Securities covered by such
Prospectus and any amendment or supplement thereto, except after the giving
on
any notice pursuant to Section 3(d).
(h) Prior
to
any resale of Registrable Securities by a Holder, use its commercially
reasonable efforts to register or qualify or cooperate with the selling Holders
in connection with the registration or qualification (or exemption from the
Registration or qualification) of such Registrable Securities for the resale
by
the Holder under the securities or Blue Sky laws of such jurisdictions within
the United States as any Holder reasonably requests in writing, to keep each
registration or qualification (or exemption therefrom) effective during the
Effectiveness Period and to do any and all other acts or things reasonably
necessary to enable the disposition in such jurisdictions of the Registrable
Securities covered by each Registration Statement; provided, that the Company
shall not be required to qualify generally to do business in any jurisdiction
where it is not then so qualified, subject the Company to any material tax
in
any such jurisdiction where it is not then so subject or file a general consent
to service of process in any such jurisdiction.
(i) If
requested by the Holders, cooperate with the Holders to facilitate the timely
preparation and delivery of certificates representing Registrable Securities
to
be delivered to a transferee pursuant to a Registration Statement, which
certificates shall be free, to the extent permitted by the Purchase Agreement,
of all restrictive legends, and to enable such Registrable Securities to be
in
such denominations and registered in such names as any such Holders may
request.
(j) Upon
the
occurrence of any event contemplated by this Section 3, as promptly as
reasonably possible under the circumstances taking into account the Company’s
good faith assessment of any adverse consequences to the Company and its
stockholders of the premature disclosure of such event, prepare a supplement
or
amendment, including a post-effective amendment, to a Registration Statement
or
a supplement to the related Prospectus or any document incorporated or deemed
to
be incorporated therein by reference, and file any other required document
so
that, as thereafter delivered, neither a Registration Statement nor such
Prospectus will contain an untrue statement of a material fact or omit to state
a material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were made,
not misleading. If
the Company notifies the Holders in accordance with clauses (ii) through (v)
of
Section 3(d) above to suspend the use of any Prospectus until the requisite
changes to such Prospectus have been made, then the Holders shall suspend use
of
such Prospectus. The Company will use its commercially reasonable efforts to
ensure that the use of the Prospectus may be resumed as promptly as is
practicable. The Company shall be entitled to exercise its right under this
Section 3(j) to suspend the availability of a Registration Statement and
Prospectus, for a period not to exceed 75 days (which need not be consecutive
days) in any 12 month period.
(k) Comply
with all applicable rules and regulations of the Commission.
(l) The
Company may require each selling Holder to furnish to the Company a certified
statement as to the number of shares of Common Stock beneficially owned by
such
Holder and, if required by the Commission, the person thereof that has voting
and dispositive control over the Shares. During any periods that the Company
is
unable to meet its obligations hereunder with respect to the registration of
the
Registrable Securities solely because any Holder fails to furnish such
information within five Trading Days of the Company’s request, any
liquidated
damages that are accruing at such time as to such Holder only shall be tolled
and any Event that may otherwise occur solely because of such delay shall be
suspended as to such Holder only, until such information is delivered to the
Company.
4.
Registration
Expenses.
All
fees and expenses incident to the performance of or compliance with this
Agreement by the Company shall be borne by the Company whether or not any
Registrable Securities are sold pursuant to the Registration Statement. The
fees
and expenses referred to in the foregoing sentence shall include, without
limitation, (i) all registration and filing fees (including, without limitation,
fees and expenses (A) with respect to filings required to be made with the
Trading Market on which the Common Stock is then listed for trading, and (B)
in
compliance with applicable state securities or Blue Sky laws reasonably agreed
to by the Company in writing (including, without limitation, fees and
disbursements of counsel for the Company in connection with Blue Sky
qualifications or exemptions of the Registrable Securities and determination
of
the eligibility of the Registrable Securities for investment under the laws
of
such jurisdictions as requested by the Holders), (ii) printing expenses
(including, without limitation, expenses of printing certificates for
Registrable Securities), (iii) messenger, telephone and delivery expenses,
(iv)
fees and disbursements of counsel for the Company, (v) Securities Act liability
insurance, if the Company so desires such insurance, and (vi) fees and expenses
of all other Persons retained by the Company in connection with the consummation
of the transactions contemplated by this Agreement. In addition, the Company
shall be responsible for all of its internal expenses incurred in connection
with the consummation of the transactions contemplated by this Agreement
(including, without limitation, all salaries and expenses of its officers and
employees performing legal or accounting duties), the expense of any annual
audit and the fees and expenses incurred in connection with the listing of
the
Registrable Securities on any securities exchange as required hereunder. In
no
event shall the Company be responsible for any broker or similar commissions
or
any legal fees or other costs of the Holders.
5.
Indemnification
(a)
Indemnification
by the Company.
The
Company shall, notwithstanding any termination of this Agreement, indemnify
and
hold harmless each Holder, the officers, directors, agents and employees of
each
of them, each Person who controls any such Holder (within the meaning of Section
15 of the Securities Act or Section 20 of the Exchange Act) and the officers,
directors, agents and employees of each such controlling Person, to the fullest
extent permitted by applicable law, from and against any and all losses, claims,
damages, liabilities, costs (including, without limitation, reasonable
attorneys' fees) and expenses (collectively, “Losses”),
as
incurred, arising out of or relating to any untrue or alleged untrue statement
of a material fact contained in a Registration Statement, any Prospectus or
any
form of prospectus or in any amendment or supplement thereto or in any
preliminary prospectus, or arising out of or relating to any omission or alleged
omission of a material fact required to be stated therein or necessary to make
the statements therein (in the case of any Prospectus or form of prospectus
or
supplement thereto, in light of the circumstances under which they were made)
not misleading, except to the extent, but only to the extent, that (i) such
untrue statements or omissions are based solely upon information regarding
such
Holder furnished in writing to the Company by such Holder expressly for use
therein, or to the extent that such information relates to such Holder or such
Holder's proposed method of distribution of Registrable Securities and was
reviewed and
expressly
approved in writing by such Holder expressly for use in a Registration
Statement, such Prospectus or such form of Prospectus or in any amendment or
supplement thereto (it being understood that the Holder has approved Annex
A
hereto for this purpose) or (ii) in the case of an occurrence of an event of
the
type specified in Section 3(d)(ii)-(vi), the use by such Holder of an outdated
or defective Prospectus after the Company has notified such Holder in writing
that the Prospectus is outdated or defective and prior to the receipt by such
Holder of the Advice contemplated in Section 6(d). The Company shall notify
the
Holders promptly of the institution, threat or assertion of any Proceeding
arising from or in connection with the transactions contemplated by this
Agreement of which the Company is aware.
(b)
Indemnification
by Holders.
Each
Holder shall, severally and not jointly, indemnify and hold harmless the
Company, its directors, officers, agents and employees, each Person who controls
the Company (within the meaning of Section 15 of the Securities Act and Section
20 of the Exchange Act), and the directors, officers, agents or employees of
such controlling Persons, to the fullest extent permitted by applicable law,
from and against all Losses, as incurred, to the extent arising out of or based
solely upon: (x) such Holder's failure to comply with the prospectus delivery
requirements of the Securities Act or (y) any untrue or alleged untrue statement
of a material fact contained in any Registration Statement, any Prospectus,
or
any form of prospectus, or in any amendment or supplement thereto or in any
preliminary prospectus, or arising out of or relating to any omission or alleged
omission of a material fact required to be stated therein or necessary to make
the statements therein not misleading (i) to the extent, but only to the extent,
that such untrue statement or omission is contained in any information so
furnished in writing by such Holder to the Company specifically for inclusion
in
such Registration Statement or such Prospectus or (ii) to the extent that (1)
such untrue statements or omissions are based solely upon information regarding
such Holder furnished in writing to the Company by such Holder expressly for
use
therein, or to the extent that such information relates to such Holder or such
Holder's proposed method of distribution of Registrable Securities and was
reviewed and expressly approved in writing by such Holder expressly for use
in
the Registration Statement (it being understood that the Holder has approved
Annex A hereto for this purpose), such Prospectus or such form of Prospectus
or
in any amendment or supplement thereto or (2) in the case of an occurrence
of an
event of the type specified in Section 3(d)(ii)-(vi), the use by such Holder
of
an outdated or defective Prospectus after the Company has notified such Holder
in writing that the Prospectus is outdated or defective and prior to the receipt
by such Holder of the Advice contemplated in Section 6(d). In no event shall
the
liability of any selling Holder hereunder be greater in amount than the dollar
amount of the net proceeds received by such Holder upon the sale of the
Registrable Securities giving rise to such indemnification
obligation.
(c)
Conduct
of Indemnification Proceedings.
If any
Proceeding shall be brought or asserted against any Person entitled to indemnity
hereunder (an “Indemnified
Party”),
such Indemnified Party shall promptly notify the Person from whom indemnity
is
sought (the “Indemnifying
Party”)
in
writing, and the Indemnifying Party shall have the right to assume the defense
thereof, including the employment of counsel reasonably satisfactory to the
Indemnified Party and the payment of all fees and expenses incurred in
connection with defense thereof; provided, that the failure of any Indemnified
Party to give such notice shall not relieve the Indemnifying Party of its
obligations or liabilities pursuant to this Agreement, except (and
only)
to
the
extent that it shall be finally determined by a court of competent jurisdiction
(which determination is not subject to appeal or further review) that such
failure shall have prejudiced the Indemnifying Party.
An
Indemnified Party shall have the right to employ separate counsel in any such
Proceeding and to participate in the defense thereof, but the fees and expenses
of such counsel shall be at the expense of such Indemnified Party or Parties
unless: (1) the Indemnifying Party has agreed in writing to pay such fees and
expenses; (2) the Indemnifying Party shall have failed promptly to assume the
defense of such Proceeding and to employ counsel reasonably satisfactory to
such
Indemnified Party in any such Proceeding; or (3) the named parties to any such
Proceeding (including any impleaded parties) include both such Indemnified
Party
and the Indemnifying Party, and such Indemnified Party shall reasonably believe
that a material conflict of interest is likely to exist if the same counsel
were
to represent such Indemnified Party and the Indemnifying Party (in which case,
if such Indemnified Party notifies the Indemnifying Party in writing that it
elects to employ separate counsel at the expense of the Indemnifying Party,
the
Indemnifying Party shall not have the right to assume the defense thereof and
the reasonable fees and expenses of one separate counsel shall be at the expense
of the Indemnifying Party). The Indemnifying Party shall not be liable for
any
settlement of any such Proceeding effected without its written consent, which
consent shall not be unreasonably withheld. No Indemnifying Party shall, without
the prior written consent of the Indemnified Party, effect any settlement of
any
pending Proceeding in respect of which any Indemnified Party is a party, unless
such settlement includes an unconditional release of such Indemnified Party
from
all liability on claims that are the subject matter of such
Proceeding.
(d)
Contribution.
If a
claim for indemnification under Section 5(a) or 5(b) is unavailable to an
Indemnified Party (by reason of public policy or otherwise), then each
Indemnifying Party, in lieu of indemnifying such Indemnified Party, shall
contribute to the amount paid or payable by such Indemnified Party as a result
of such Losses, in such proportion as is appropriate to reflect the relative
fault of the Indemnifying Party and Indemnified Party in connection with the
actions, statements or omissions that resulted in such Losses as well as any
other relevant equitable considerations. The relative fault of such Indemnifying
Party and Indemnified Party shall be determined by reference to, among other
things, whether any action in question, including any untrue or alleged untrue
statement of a material fact or omission or alleged omission of a material
fact,
has been taken or made by, or relates to information supplied by, such
Indemnifying Party or Indemnified Party, and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
action, statement or omission. The amount paid or payable by a party as a result
of any Losses shall be deemed to include, subject to the limitations set forth
in this Agreement, any reasonable attorneys' or other reasonable fees or
expenses incurred by such party in connection with any Proceeding to the extent
such party would have been indemnified for such fees or expenses if the
indemnification provided for in this Section was available to such party in
accordance with its terms.
The
parties hereto agree that it would not be just and equitable if contribution
pursuant to this Section 5(d) were determined by pro rata allocation or by
any
other method of allocation that does not take into account the equitable
considerations referred to in the immediately preceding paragraph.
Notwithstanding the provisions of this Section 5(d), no Holder shall
be
required
to contribute, in the aggregate, any amount in excess of the amount by which
the
proceeds actually received by such Holder from the sale of the Registrable
Securities subject to the Proceeding exceeds the amount of any damages that
such
Holder has otherwise been required to pay by reason of such untrue or alleged
untrue statement or omission or alleged omission, except in the case of fraud
by
such Holder.
The
indemnity and contribution agreements contained in this Section are in addition
to any liability that the Indemnifying Parties may have to the Indemnified
Parties.
6. Reports
Under Exchange Act.
With a
view to making available to the Holder the benefits of Rule 144 promulgated
under the Securities Act and any other rule or regulation of the SEC that may
at
any time permit a Holder to sell Registrable Shares of the Company to the public
without registration, the Company agrees to:
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(a)
|
Make
and keep public information available, as those terms are used in
SEC Rule
144, at all times;
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(b)
|
File
with the SEC in a timely manner all reports and other documents required
of the Company under the Securities Act and the Exchange
Act;
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(c)
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Furnish
to any Holder, so long as the Holder owns any Registrable Shares,
forthwith on request, (i) a written statement by the Company that
it has
complied with the reporting requirements of SEC Rule 144, the Securities
Act and the Exchange Act, (ii) a copy of the most recent annual or
quarterly report of the Company and such other reports and documents
so
filed by the Company, and (iii) such other information as may be
reasonably requested in availing any Holder of any rule or regulation
of
the SEC that permits the selling of any such securities without
registration; and
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(d)
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Undertake
any additional actions reasonably necessary to maintain the availability
of the use of Rule 144.
|
7.
Miscellaneous
(a) Remedies.
In the
event of a breach by the Company or by a Holder, of any of their obligations
under this Agreement, each other Holder or the Company, as the case may be,
in
addition to being entitled to exercise all rights granted by law and under
this
Agreement, including recovery of damages, will be entitled to specific
performance of its rights under this Agreement. The Company and each Holder
agree that monetary damages would not provide adequate compensation for any
losses incurred by reason of a breach by it of any of the provisions of this
Agreement and hereby further agrees that, in the event of any action for
specific performance in respect of such breach, it shall waive the defense
that
a remedy at law would be adequate.
(b) Compliance.
Each
Holder, severally and not jointly, covenants and agrees that it will comply
with
the prospectus delivery requirements of the Securities Act as applicable to
it
in connection with sales of Registrable Securities pursuant to the Registration
Statement.
(c) Discontinued
Disposition.
Each
Holder, severally and not jointly, agrees by its acquisition of such Registrable
Securities that, upon receipt of a notice from the Company of the occurrence
of
any event of the kind described in Section 3(d), such Holder will forthwith
discontinue disposition of such Registrable Securities under a Registration
Statement until such Holder's receipt of the copies of the supplemented
Prospectus and/or amended Registration Statement, or until it is advised in
writing (the “Advice”)
by the
Company that the use of the applicable Prospectus may be resumed, and, in either
case, has received copies of any additional or supplemental filings that are
incorporated or deemed to be incorporated by reference in such Prospectus or
Registration Statement. The Company will use its commercially reasonable efforts
to ensure that the use of the Prospectus may be resumed as promptly as it
practicable. The Company agrees and acknowledges that any periods during which
the Holder is required to discontinue the disposition of the Registrable
Securities hereunder shall be subject to the provisions of Section
2(b).
(d) Amendments
and Waivers.
The
provisions of this Agreement, including the provisions of this sentence, may
not
be amended, modified or supplemented, and waivers or consents to departures
from
the provisions hereof may not be given, unless the same shall be in writing
and
signed by the Company and each Holder of the then outstanding Registrable
Securities. Notwithstanding the foregoing, a waiver or consent to depart from
the provisions hereof with respect to a matter that relates exclusively to
the
rights of Holders and that does not directly or indirectly affect the rights
of
other Holders may be given by Holders of all of the Registrable Securities
to
which such waiver or consent relates; provided,
however,
that
the provisions of this sentence may not be amended, modified, or supplemented
except in accordance with the provisions of the immediately preceding sentence.
(e) Notices.
Any and
all notices or other communications or deliveries required or permitted to
be
provided hereunder shall be delivered as set forth in the Purchase Agreement.
(f) Successors
and Assigns.
This
Agreement shall inure to the benefit of and be binding upon the successors
and
permitted assigns of each of the parties and shall inure to the benefit of
each
Holder. The Company may not assign its rights or obligations hereunder without
the prior written consent of all of the Holders of the then-outstanding
Registrable Securities. Each Holder may assign their respective rights hereunder
in the manner and to the Persons as permitted under the Purchase
Agreement.
(g) No
Inconsistent Agreements.
Neither
the Company nor any of its subsidiaries has entered, as of the date hereof,
nor
shall the Company or any of its subsidiaries, on or after the date of this
Agreement, enter into any agreement with respect to its securities, that would
have the effect of impairing the rights granted to the Holders in this Agreement
or otherwise conflicts with the provisions hereof.
(h) Execution
and Counterparts.
This
Agreement may be executed in any number of counterparts, each of which when
so
executed shall be deemed to be an original and, all of which taken together
shall constitute one and the same Agreement. In the event that any signature
is
delivered by facsimile transmission, such signature shall create a valid binding
obligation of the
party
executing (or on whose behalf such signature is executed) the same with the
same
force and effect as if such facsimile signature were the original
thereof.
(i)
Governing
Law.
All
questions concerning the construction, validity, enforcement and interpretation
of this Agreement shall be determined with the provisions of the Purchase
Agreement.
(j) Cumulative
Remedies.
The
remedies provided herein are cumulative and not exclusive of any remedies
provided by law.
(k) Severability.
If any
term, provision, covenant or restriction of this Agreement is held by a court
of
competent jurisdiction to be invalid, illegal, void or unenforceable, the
remainder of the terms, provisions, covenants and restrictions set forth herein
shall remain in full force and effect and shall in no way be affected, impaired
or invalidated, and the parties hereto shall use their commercially reasonable
efforts to find and employ an alternative means to achieve the same or
substantially the same result as that contemplated by such term, provision,
covenant or restriction. It is hereby stipulated and declared to be the
intention of the parties that they would have executed the remaining terms,
provisions, covenants and restrictions without including any of such that may
be
hereafter declared invalid, illegal, void or unenforceable.
(l) Headings.
The
headings in this Agreement are for convenience of reference only and shall
not
limit or otherwise affect the meaning hereof.
(m) Independent
Nature of Holders’ Obligations and Rights.
The
obligations of each Holder hereunder are several and not joint with the
obligations of any other Holder hereunder, and no Holder shall be responsible
in
any way for the performance of the obligations of any other Holder hereunder.
Nothing contained herein or in any other agreement or document delivered at
any
closing, and no action taken by any Holder pursuant hereto or thereto, shall
be
deemed to constitute the Holders as a partnership, an association, a joint
venture or any other kind of entity, or create a presumption that the Holders
are in any way acting in concert with respect to such obligations or the
transactions contemplated by this Agreement. Each Holder shall be entitled
to
protect and enforce its rights, including without limitation the rights arising
out of this Agreement, and it shall not be necessary for any other Holder to
be
joined as an additional party in any proceeding for such purpose.
********************
IN
WITNESS WHEREOF, the parties have executed this Registration Rights Agreement
as
of the date first written above.
| XENOMICS, INC. | ||
| |
|
|
| By: | ||
|
|
||
|
Name:
Title:
|
||
[SIGNATURE
PAGE OF HOLDERS FOLLOWS]
[PURCHASER’S
SIGNATURE PAGE]
Name
of
Investing Entity: __________________________
Signature
of Authorized Signatory of Investing Entity:
__________________________
Name
of
Authorized Signatory: _________________________
Title
of
Authorized Signatory: __________________________
[SIGNATURE
PAGES CONTINUE]
ANNEX
A
Plan
of Distribution
The
selling stockholders, which as used herein includes donees, pledgees,
transferees or other successors-in-interest selling shares of common stock
or
interests in shares of common stock received after the date of this prospectus
from a selling stockholder as a gift, pledge, partnership distribution or other
transfer, may, from time to time, sell, transfer or otherwise dispose of any
or
all of their shares of common stock or interests in shares of common stock
on
any stock exchange, market or trading facility on which the shares are traded
or
in private transactions. These dispositions may be at fixed prices, at
prevailing market prices at the time of sale, at prices related to the
prevailing market price, at varying prices determined at the time of sale,
or at
negotiated prices.
The
selling stockholders may use any one or more of the following methods when
disposing of shares or interests therein:
-
ordinary brokerage transactions and transactions in which the broker-dealer
solicits purchasers;
-
block
trades in which the broker-dealer will attempt to sell the shares as agent,
but
may position and resell a portion of the block as principal to facilitate the
transaction;
-
purchases by a broker-dealer as principal and resale by the broker-dealer for
its account;
-
an
exchange distribution in accordance with the rules of the applicable
exchange;
-
privately negotiated transactions;
-
short
sales;
-
through
the writing or settlement of options or other hedging transactions, whether
through an options exchange or otherwise;
-
broker-dealers may agree with the selling stockholders to sell a specified
number of such shares at a stipulated price per share;
-
a
combination of any such methods of sale; and
-
any
other method permitted pursuant to applicable law.
The
selling stockholders may, from time to time, pledge or grant a security interest
in some or all of the shares of common stock owned by them and, if they default
in the performance of their secured obligations, the pledgees or secured parties
may offer and sell the shares of common stock, from time to time, under this
prospectus, or under an amendment to this prospectus under Rule 424(b)(3) or
other applicable provision of the Securities Act amending the list of selling
stockholders to include the pledgee, transferee or other successors in interest
as
selling
stockholders under this prospectus. The selling stockholders also may transfer
the shares of common stock in other circumstances, in which case the
transferees, pledgees or other successors in interest will be the selling
beneficial owners for purposes of this prospectus.
In
connection with the sale of our common stock or interests therein, the selling
stockholders may enter into hedging transactions with broker-dealers or other
financial institutions, which may in turn engage in short sales of the common
stock in the course of hedging the positions they assume. The selling
stockholders may also sell shares of our common stock short and deliver these
securities to close out their short positions, or loan or pledge the common
stock to broker-dealers that in turn may sell these securities. The selling
stockholders may also enter into option or other transactions with
broker-dealers or other financial institutions or the creation of one or more
derivative securities which require the delivery to such broker-dealer or other
financial institution of shares offered by this prospectus, which shares such
broker-dealer or other financial institution may resell pursuant to this
prospectus (as supplemented or amended to reflect such
transaction).
The
aggregate proceeds to the selling stockholders from the sale of the common
stock
offered by them will be the purchase price of the common stock less discounts
or
commissions, if any. Each of the selling stockholders reserves the right to
accept and, together with their agents from time to time, to reject, in whole
or
in part, any proposed purchase of common stock to be made directly or through
agents. We will not receive any of the proceeds from this offering. Upon any
exercise of the warrants by payment of cash, however, we will receive the
exercise price of the warrants.
The
selling stockholders also may resell all or a portion of the shares in open
market transactions in reliance upon Rule 144 under the Securities Act of 1933,
provided that they meet the criteria and conform to the requirements of that
rule.
The
selling stockholders and any underwriters, broker-dealers or agents that
participate in the sale of the common stock or interests therein may be
"underwriters" within the meaning of Section 2(11) of the Securities Act. Any
discounts, commissions, concessions or profit they earn on any resale of the
shares may be underwriting discounts and commissions under the Securities Act.
Selling stockholders who are "underwriters" within the meaning of Section 2(11)
of the Securities Act will be subject to the prospectus delivery requirements
of
the Securities Act.
To
the
extent required, the shares of our common stock to be sold, the names of the
selling stockholders, the respective purchase prices and public offering prices,
the names of any agents, dealer or underwriter, any applicable commissions
or
discounts with respect to a particular offer will be set forth in an
accompanying prospectus supplement or, if appropriate, a post-effective
amendment to the registration statement that includes this
prospectus.
In
order
to comply with the securities laws of some states, if applicable, the common
stock may be sold in these jurisdictions only through registered or licensed
brokers or dealers. In addition, in some states the common stock may not be
sold
unless it has been registered or qualified for sale or an exemption from
registration or qualification requirements is available and is complied
with.
We
have
advised the selling stockholders that the anti-manipulation rules of Regulation
M under the Exchange Act may apply to sales of shares in the market and to
the
activities of the selling stockholders and their affiliates. In addition, we
will make copies of this prospectus (as it may be supplemented or amended from
time to time) available to the selling stockholders for the purpose of
satisfying the prospectus delivery requirements of the Securities Act. The
selling stockholders may indemnify any broker-dealer that participates in
transactions involving the sale of the shares against certain liabilities,
including liabilities arising under the Securities Act.
We
have
agreed to indemnify the selling stockholders against liabilities, including
liabilities under the Securities Act and state securities laws, relating to
the
registration of the shares offered by this prospectus.
We
have
agreed with the selling stockholders to keep the registration statement of
which
this prospectus constitutes a part effective until the earlier (i) the date
that
is two (2) years after the last day of the calendar month following the month
in
which the effective date of the registration statement occurs, (ii) the date
when the selling stockholder may sell all securities registered under the
registration statement under Rule 144 without volume or other restrictions
or
limits or (iii) the date the selling stockholders no longer own any of the
securities registered under the registration statement.
Annex
B
XENOMICS,
INC.
SELLING
STOCKHOLDERS’ QUESTIONNAIRE
The
following information is requested from you in connection with the preparation
and filing by Xenomics, Inc. (the “Company”) of a Registration Statement on Form
SB-2 or other appropriate form (the “Registration Statement”) with the
Securities and Exchange Commission (the “SEC”) covering the sale of shares of
the Company’s common stock by certain stockholders.
We
would
appreciate your answering all of the questions included in this questionnaire,
even though your answers may be in the negative, so that the Company will have
a
record of your responses for use in connection with the preparation of the
Registration Statement. It
is
requested that you give careful attention to each question and that you complete
this questionnaire personally.
In
order
to assist you in completing this questionnaire, certain terms used herein are
defined in the appendix which is attached to this questionnaire. Each of such
defined terms has been bolded
and italicized
for
identification. The term “person,” as used in this questionnaire, means any
natural person, company, government or political subdivision, agency or
instrumentality of a government.
After
you have completed the following questionnaire, please send the completed
questionnaire by facsimile ((000) 000-0000) or overnight courier as soon as
possible to the attention of Xxxxxxx Xxxxxxx at Sichenzia Xxxx Xxxxxxxx Xxxxxxx
LLP, 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx
00000.
*********************
General
Information
1.
Please
provide your full name and address or the full name and address of the entity
on
whose behalf you are completing this questionnaire. The address may be a
business, mailing or residence address.
| Name: | |
| Address: |
Securities
Holdings
1.
Please
fill in all blanks in the following questions related to your beneficial
ownership
of the
Company’s common stock. Generally, the term “beneficial
ownership”
refers
to any direct or indirect interest in the securities which entitles you to
any
of the rights or benefits of ownership, even though you may not be the holder
of
record of the securities. For example, securities held in “street name” over
which you exercise voting or investment power would be considered beneficially
owned
by you.
Other examples of indirect ownership include ownership by a partnership in
which
you are a partner or by an estate or trust of which you or any member of your
immediate
family
is a
beneficiary. Ownership of securities held in the names of your spouse, minor
children or other relatives who live in the same household may be attributed
to
you.
If
you
have any reason to believe that any interest in securities of the Company which
you may have, however remote, is a beneficial interest, please describe such
interest. For purposes of responding to this questionnaire, it is preferable
to
err on the side of inclusion rather than exclusion. Where the SEC’s
interpretation of beneficial
ownership
would
require disclosure of you interest or possible interest in certain securities
of
the Company, and you believe that you do not actually possess the attributes
of
beneficial
ownership,
an
appropriate response is to disclose the interest and at the same time disclaim
beneficial
ownership
of the
securities.
Please
indicate the amount of common stock of the Company or any of its subsidiaries
which you beneficially
owned
as of
the date hereof.
For
each
holding:
|
·
|
State
the nature of the holding (i.e.,
held in your own name, jointly, as a trustee or beneficiary of a
trust, as
a custodian, as an executor, in discretionary accounts, by your spouse
or
minor children, by a partnership of which you are a partner, etc.),
and
|
|
·
|
State
whether you are the beneficial
owner
by
reason of (i) sole voting power, (ii) shared voting power, (iii)
sole
investment power, (iv) shared investment power, (v) the right to
acquire
stock within 60 days of the end of the calendar year, and/or (vi)
the
right to acquire stock with the purpose of changing or influencing
control.
|
|
·
|
Indicate
in the Remarks column whether you have sole or shared voting or investment
power with respect to any such securities, and in what capacity
(i.e.,
individual, general partner, trustee) you have such power or
powers.
|
|
·
|
If
you wish to disclaim beneficial
ownership
of
any shares listed, so indicate by writing the word “Disclaim” in the
Remarks column below; and you understand that such shares will be
shown
separately from your beneficial holdings and an appropriate disclaimer
set
forth.
|
|
·
|
If
any of the shares listed are subject to any claim, encumbrance, pledge
or
lien, so indicate in the Remarks
column.
|
|
Number
of
Shares
|
Registered
in
the
Name of
|
Beneficially
Owned
by
|
Remarks
|
Shares
Voted
|
Shares
to be Sold
|
|||||
|
|
|
|
|
|
|
|||||
|
________
|
_______________
|
_______________
|
_______________
|
________
|
|
|||||
|
|
|
|
|
|
|
|||||
|
________
|
_______________
|
_______________
|
_______________
|
________
|
|
|||||
|
|
|
|
|
|
|
|||||
|
________
|
_______________
|
_______________
|
_______________
|
________
|
|
|||||
|
|
|
|
|
|
|
|||||
|
|
|
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|
|||||
To
the
best of my knowledge, all persons (including myself and my associates
and
including corporations, partnerships, trusts, associations and other such
groups) who beneficially
own
more
than 5% of any class of the Company’s stock are described below:
|
Name
of
Beneficial
Owner
|
Class
of Shares
Beneficially
Owned
|
Holder
of
Voting
or
Investment
Power
|
5
No
Adverse Interest
All
interests I or my associates
have or
will have that are adverse to the Company interests in any pending or
contemplated legal proceeding or government investigation to which the Company
is or will be a party (or to which its property may be subject) are described
below:
6
Voting
Arrangement
All
voting trusts or similar agreements or arrangements
of which
I have knowledge under which more than 5% of the Company’s outstanding common
stock, on an as converted basis, is held or to be held are described below:
|
Names
and Addresses of Voting Trustees
|
Voting
Rights and Other Powers
Under
Trust, Agreement or Arrangement
|
|||
7
Change
in Control
All
arrangements
of which
I have knowledge, including any pledge by any person of securities of the
Company, the operations of which may at a subsequent date result in a change
in
control
of the
Company, are described below:
8
Transactions
with the Company
1.
Information
regarding all material
interests of yours or your associates in any actual or proposed transaction
during the last three fiscal years to which the Company was or is to be a party
and that are identified under “Securities Holdings” above) is provided below.
Further,
no such transaction need be described if:
(a)
the
amount involved (including all periodic installments in the case of any lease
or
other agreement provided for periodic payments or installments and including
the
value of all transactions In a series of similar transactions) does not exceed
$60,000;
(b)
the
rates
or charges involved in the transaction are fixed by law or governmental
authority or determined by competitive bids;
(c)
the
services involved are as a bank depositary of funds, transfer agent, registrar,
trustee under a trust indenture or other similar service;
(d)
my
interest arises solely from my ownership of securities of the Company and I
received no extra or special benefit not shared on a pro rata basis by all
other
holders of securities in the same class;
(e)
my
interest in the corporation that is a party to the transaction is solely as
a
director; or
(f)
my
interest arose solely as an officer and/or director of the Company (e.g., my
compensation arrangement with the Company).
Description:
9
Affiliation
with Accountants or attorneys
Described
below is any interest, affiliation or connection you have with the firm of
Sichenzia Xxxx Xxxxxxxx Xxxxxxx LLP, Xxxxx Xxxxxx & Xxxxx LLP or any other
law firm or accounting firm that has been retained by the Company during the
last three fiscal years or is proposed to be retained by the Company:
10
Contracts
with the Company
Described
below are all contracts with the Company or in which the Company has a
beneficial interest, or to which the Company has succeeded by assumption or
assignment, to which you or any of your associates
is a
party, which are to be performed in whole or in part at or after the date of
the
proposed filing of the Registration Statement, or which were made not more
than
two years prior thereto:
11
NASD-RELATED
QUESTIONS
(1) Are
you
(i) a “member” of the National Association of Securities Dealers, Inc.
(“NASD”),
(ii)
an “affiliate” of a member of the NASD, (iii) a “person associated with a
member” or “associated person of a member” of the NASD or (iv) associated with
an “underwriter or related person” with respect to the proposed initial public
offering for the Company?
| Yes No |
For
the
sole purpose of this Question: (i) the NASD defines a “member” as being either
any broker or dealer admitted to membership in the NASD or any officer or
partner of such a member or the executive representative of such member or
the
substitute for such representative; (ii) the term “affiliate” means a person
that directly, or indirectly through one or more intermediaries, controls,
or is
controlled by, or is in common control with the person specified. Persons who
have acted or are acting on behalf or for the benefit of a person include,
but
are not necessarily limited to, directors, officers, employees, agents,
consultants and sales representatives; (iii) the NASD defines a “person
associated with a member” or “associated person of a member” as being every sole
proprietor, partner, officer, director or branch manager of any member, or
any
natural person occupying a similar status or performing similar functions,
or
any natural person engaged in the investment banking or securities business
who
is directly or indirectly controlling or controlled by such member (for example,
any employee), whether or not any such person is registered or exempt from
registration with the NASD; and (iv) the term “underwriter or related person”
includes, with respect to a proposed offering, underwriters, underwriters’
counsel, financial consultants and advisers, finders, members of the selling
or
distribution group, and any and all other persons associated with or related
to
any such persons.
If
yes,
kindly describe such relationship (whether direct or indirect) and please
respond to Questions (2) and (3) below; if no, please proceed to Question
(4).
(2) Please
set forth information as to all purchases and acquisitions (including contracts
for purchase or acquisition) of securities of the Company by you, regardless
of
the time acquired or the source from which derived:
|
Seller
or Prospective Seller |
Amount
and Nature of Securities |
Price
or Other
Consideration
|
Date
|
(3) In
connection with your direct or indirect affiliation or association with a
“member” of the NASD as set forth above in Question (1), please furnish the
identity of such NASD member and any information, if known, as to whether such
NASD member intends to participate in any capacity in this proposed initial
public offering, including the details of such participation:
12
(4) Please
describe any underwriting compensation and arrangement or any dealings known
to
you between any “underwriter or related person”, “member” of the NASD,
“affiliate” of a member of the NASD, “person associated with a member”, or
“associated person of a member” of the NASD on the one hand and the Company or
controlling shareholder thereof on the other hand, other than information
relating to the proposed initial public offering of the Company:
(5) Please
set out below any information, if known, as to whether any “member” of the NASD,
any “underwriter or related person”, “affiliate” or a member of the NASD,
“person associated with a member” or “associated person of a member” of the NASD
may receive any portion of the net offering:
13
I
understand that material misstatements or the omission of material facts in
the
Registration Statement may give rise to civil and criminal liabilities to the
Company, to each officer and director of the Company signing the Registration
Statement and other persons signing the Registration Statement. I will notify
you and the Company of any misstatement of a material fact in the Registration
Statement or any amendment thereto, and of the omission of any material fact
necessary to make the statements contained therein not misleading, as soon
as
practicable after a copy of the Registration Statement or any such amendment
has
been provided to me.
I
confirm
that the foregoing statements are correct, to the best of my knowledge and
belief.
Dated: ___________.
|
Very
truly yours,
|
||
| (Signature) | ||
|
|
||
| (Typed or Printed Name) |
14
Definitions
The
term
“arrangement”
means
any plan, contract, authorization or understanding whether or not set forth
in a
formal document.
The
term
“associate”
as used
throughout this questionnaire, means (a) any corporation or organization (other
than the Company) of which I am an officer, director or partner or of which
I
am, directly or indirectly, the beneficial owner of 5% or more of any class
of
equity securities, (b) any trust or other estate in which I have a substantial
beneficial interest or as to which I serve as trustee or in a similar capacity,
(c) my spouse, (d) any relative of my spouse or any relative of mine who has
the
same home as me or who is a director or officer or key executive of the Company,
(e) any partner, syndicate member or person with whom I have agreed to act
in
concert with respect to the acquisition, holding, voting or disposition of
shares of the Company’s securities.
The
term
“beneficially
owned”
when
used in connection with the ownership of securities, means (a) any interest
in a
security which entitles me to any of the rights or benefits of ownership even
though I may not be the owner of record or (b) securities owned by me directly
or indirectly, including those held by me for my own benefit (regardless of
how
registered) and securities held by others for my benefit (regardless of how
registered), such as by custodians, brokers, nominees, pledgees, etc., and
including securities held by an estate or trust in which I have an interest
as
legatee or beneficiary, securities owned by a partnership of which I am a
partner, securities held by a personal holding company of which I am a
stockholder, etc., and securities held in the name of my spouse, minor children
and any relative (sharing the same home). A “beneficial owner” of a security
includes any person who, directly or indirectly, through any contract,
arrangement, understanding, relationship or otherwise has or
shares:
(a)
voting
power which includes the power to vote, or to direct the voting of, such
security; and/or
(b)
investment
power which includes the power to dispose, or to direct the disposition, of
such
security.
The
term
“control”
means
the possession, directly or indirectly, of the power to direct or cause the
direction of the management and policies of a person, whether through the
ownership of voting securities, by contract or otherwise.
The
term
“immediate
family”
means
any relationship by blood, marriage or adoption, not more remote than first
cousin.
The
term
“material,”
when
used in this questionnaire to qualify a requirement for the furnishing of
information as to any subject, limits the information required to those matters
as to which an average prudent investor ought reasonably to be informed before
purchasing the Common Stock of the Company.
15
