Exhibit 10.43
HYBRIDON, INC.
REGISTRATION RIGHTS AGREEMENT
dated as of August 28, 2003
HYBRIDON, INC.
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (this "Agreement") is entered into
as of August 28, 2003 by and among Hybridon, Inc., a Delaware corporation (the
"Company"), the persons and entities listed on the Schedule of Purchasers
attached hereto as Exhibit A (the "Purchasers") and the entities listed on the
Schedule of Agents attached hereto as Exhibit B (the "Agents"). The Purchasers
and the Agents shall become parties to this Agreement by the execution and
delivery of counterpart signature pages hereto in a form reasonably satisfactory
to the Company.
WHEREAS, the Company is conducting an offering of Units (the "Unit
Offering"), with each Unit consisting of shares of the Company's common stock,
$.001 par value per share ("Common Stock"), and warrants to purchase shares of
Common Stock (the "Purchaser Warrants"), as described in the Private Placement
Memorandum dated July 22, 2003;
WHEREAS, in connection with the Unit Offering, the Company has engaged
the Agents and has agreed to issue to the Agents warrants to purchase Common
Stock (the "Agent Warrants"); and
WHEREAS, to induce the Purchasers to purchase Units in the Unit
Offering and the Agents to assist the Company in the Unit Offering, the Company
has agreed to provide certain registration rights under the Securities Act (as
defined below) and applicable state securities laws;
NOW, THEREFORE, in consideration of the promises and the mutual
covenants contained herein and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the Company and each
of the Purchasers and the Agents hereby agree as follows:
1. Certain Definitions. As used in this Agreement, the following
terms shall have the following meanings:
(a) "Business Day" means any day other than Saturday,
Sunday or any other day on which commercial banks in The City of New York are
required by law to remain closed.
(b) "Commission" means the Securities and Exchange
Commission, or any other federal agency at the time administering the Securities
Act.
(c) "Exchange Act" means the Securities Exchange Act of
1934, as amended, or any successor federal statute, and the rules and
regulations of the Commission issued under such Act, as they each may, from time
to time, be in effect.
(d) "Indemnified Party" means a party entitled to
indemnification pursuant to Section 7.
(e) "Indemnifying Party" means a party obligated to
provide indemnification pursuant to Section 7.
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(f) "Person" means an individual, a limited liability
company, a partnership, a joint venture, a corporation, a trust, an
unincorporated organization or association and governmental or any department or
agency thereof.
(g) "Registrable Securities" means (i) the shares of
Common Stock issued as part of the Units issued pursuant to the Unit Offering,
(ii) the shares of Common Stock issued or issuable upon exercise of the
Purchaser Warrants and the Agent Warrants and (iii) any other shares of Common
Stock issued in respect of such shares (as a result of a stock split, stock
dividend, reclassification, recapitalization or other similar transaction
affecting the Common Stock); provided, however, that shares of Common Stock that
are Registrable Securities shall cease to be Registrable Securities upon the
earliest of (A) the date that such shares are eligible to be sold under Rule 144
of the Securities Act without restriction by the volume limitations of Rule
144(e) of the Securities Act, (B) the date that such shares are sold (I)
pursuant to a registration statement, (II) to or through a broker, dealer or
underwriter in a public securities transaction and/or (III) in a transaction
exempt from the registration and prospectus delivery requirements of the
Securities Act such that all transfer restrictions and restrictive legends with
respect thereto, if any, are removed upon the consummation of such sale, or (C)
any sale or transfer to any Person which by virtue of Section 9 of this
Agreement is not entitled to the rights provided by this Agreement. Wherever
reference is made in this Agreement to a request or consent of holders of a
certain percentage of Registrable Securities, the determination of such
percentage shall include shares of Common Stock issuable upon exercise of the
Purchaser Warrants and the Agent Warrants even if such exercise has not been
effected.
(h) "Registration Statement" means a registration
statement of the Company filed under the Securities Act and covering the
Registrable Securities.
(i) "Rightsholders" means the Purchasers, the Agents and
any persons or entities to whom the rights granted under this Agreement are
transferred by any Purchaser, Agent or his or its successors or assigns pursuant
to Section 9 of this Agreement.
(j) "Securities Act" means the Securities Act of 1933, as
amended, or any successor federal statute, and the rules and regulations of the
Commission issued under such Act, as they each may, from time to time, be in
effect.
2. Registration
(a) The Company shall use its best efforts to prepare and
file with the Commission a Registration Statement covering the resale of all of
the Registrable Securities and such other shares of Common Stock as the Company
may be required to include pursuant to registration rights agreements with other
Persons within 45 days of the date hereof. The Company shall use its best
efforts to have the Registration Statement declared effective by the Commission
within 90 days after the date the Registration Statement is filed.
(b) The Company shall use its best efforts to cause the
Registration Statement to remain effective until the earlier of (i) the second
anniversary of the date hereof and (ii) the date on which the Rightsholders do
not hold any Registrable Securities.
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(c) The Company agrees that, in the event that the
Company has not filed the Registration Statement with the Commission within 135
days after the date hereof (such event being referred to as a "Registration
Default"), then, within five Business Days after the date 135 days after the
date hereof and after the end of each 30-day period thereafter, to the extent
the Registration Statement has not been filed as of the applicable date, the
Company shall pay to each Purchaser an amount in cash equal to 1% of the
aggregate purchase price paid by the Purchaser for its Units in the Unit
Offering. If the Company breaches Section 2(a) of this Agreement and if the
Company is judged to be liable to a Purchaser for damages as a result of such
breach, the Company shall be entitled to offset the total amount paid to the
Purchaser under this paragraph (c) against any payment of damages it is
obligated to make to such Purchaser.
3. Registration Procedures.
(a) In connection with the effectiveness of the
Registration Statement, the Company shall furnish to each Rightsholder such
reasonable numbers of copies of the prospectus and such documents incident
thereto, including any amendment of or supplement to the prospectus, as a
Rightsholder from time to time may reasonably request in order to facilitate the
disposition of such Rightsholder's Registrable Securities under the Registration
Statement in conformity with the requirements of the Securities Act.
(b) The Company shall use its best efforts to register or
qualify the Registrable Securities covered by the Registration Statement under
the securities laws of each state of the United States; provided, however, that
the Company shall not be required in connection with this paragraph (b) to
qualify as a foreign corporation or execute a general consent to service of
process in any jurisdiction.
(c) If the Company has delivered preliminary or final
prospectuses to the Rightsholders and if after having done so the Company
determines that the prospectus and/or the Registration Statement needs to be
amended or supplemented to comply with the requirements of the Securities Act,
the Company shall promptly notify the Rightsholders and, if requested by the
Company, the Rightsholders shall immediately cease making offers or sales of
shares under the Registration Statement and shall return all prospectuses to the
Company. The Company shall as promptly as reasonably practicable prepare and
file with the Commission any required amendment or supplement and following such
filing, and, if applicable, the effectiveness of such filing, shall provide the
Rightsholders with revised or supplemented prospectuses. Following receipt of
the revised or supplemented prospectuses, the Rightsholders shall be free to
resume making offers and sales under the Registration Statement.
(d) The Company shall use its best efforts to cause all
such Registrable Securities registered pursuant to this Agreement to be listed
on each securities exchange on which similar securities issued by the Company
are then listed.
4. Limitations on Registration Rights.
(a) The Company may, by written notice to the
Rightsholders, suspend the Registration Statement after effectiveness and
require that the Rightsholders immediately cease sales of shares pursuant to the
Registration Statement, in the event that the Company is engaged
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in any activity or transaction or preparations or negotiations for any activity
or transaction that the Company desires to keep confidential for business
reasons, if the Company determines in good faith that the public disclosure
requirements imposed on the Company under the Securities Act in connection with
the Registration Statement would require disclosure of such activity,
transaction, preparations or negotiations.
(b) If the Company requires the Rightsholders to cease
sales of shares pursuant to paragraph (a) above, the Company shall, as promptly
as practicable following the termination of the circumstance which entitled the
Company to do so, take such actions as may be necessary to reinstate the
effectiveness of the Registration Statement and/or give written notice to all
Rightsholders authorizing them to resume sales pursuant to the Registration
Statement. If as a result thereof the prospectus included in the Registration
Statement has been amended to comply with the requirements of the Securities
Act, the Company shall enclose such revised prospectus with the notice to
Rightsholders given pursuant to this paragraph (b), and the Rightsholders shall
make no offers or sales of shares pursuant to the Registration Statement other
than by means of such revised prospectus.
(c) Notwithstanding the foregoing, the Company may not
suspend the Registration Statement pursuant to paragraph (a) above on more than
two occasions during any 12-month period or for more than 60 days per such
occasion.
5. Obligations of the Rightsholders.
(a) The Company shall not be required to include any
Registrable Securities in the Registration Statement unless such Rightsholder
shall have furnished to the Company such information regarding itself, the
Registrable Securities held by it and the intended method of disposition of the
Registrable Securities held by it as shall be reasonably required by the Company
to effect the effectiveness of the Registration Statement and unless such
Rightsholder shall have executed such documents in connection with the
Registration Statement as the Company may reasonably request. Each Rightsholder
shall promptly notify the Company of any material change with respect to such
information previously provided to the Company by such Rightsholder, including
without limitation notice of the sale by the Rightsholder of any Registrable
Securities.
(b) Each Rightsholder agrees to cooperate with the
Company as reasonably requested by the Company in connection with the
preparation and filing of the Registration Statement hereunder.
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6. Expenses of Registration. The Company shall pay the expenses
incurred by it in complying with its obligations under this Agreement, including
all registration and filing fees, exchange listing fees, fees and expenses of
counsel for the Company, and fees and expenses of accountants for the Company,
but excluding (i) any brokerage fees, selling commissions or underwriting
discounts incurred by the Rightsholders in connection with sales under the
Registration Statement and (ii) the fees and expenses of any counsel retained by
Rightsholders.
7. Indemnification and Contribution.
(a) In the event of any registration of any of the
Registrable Securities under the Securities Act pursuant to this Agreement, the
Company will indemnify and hold harmless each Rightsholder, each of its
officers, directors and partners, and each underwriter of such Registrable
Securities, if any, and each other person, if any, who controls such
Rightsholder or underwriter within the meaning of the Securities Act or the
Exchange Act against any and all losses, claims, damages or liabilities, joint
or several, to which such Rightsholder, underwriter or controlling person may
become subject under the Securities Act, the Exchange Act, state securities or
Blue Sky laws or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon (i)
any untrue statement or alleged untrue statement of any material fact contained
in the Registration Statement, any preliminary prospectus or final prospectus
contained in the Registration Statement, or any amendment or supplement to such
Registration Statement or (ii) the omission or alleged omission to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading; and the Company will reimburse such Rightsholder,
underwriter and each such controlling person for any legal or any other expenses
reasonably incurred by such Rightsholder, underwriter or controlling person in
connection with investigating or defending any such loss, claim, damage,
liability or action; provided, however, that the Company will not be liable in
any such case to the extent that any such loss, claim, damage, liability or
action arises out of or is based upon any untrue statement or omission made in
such Registration Statement, preliminary prospectus or prospectus, or any such
amendment or supplement, in reliance upon and in conformity with information
furnished to the Company by or on behalf of such Rightsholder, underwriter or
controlling person and stated to be specifically for use in connection with the
Registration Statement.
(b) Each Rightsholder, severally and not jointly, will
indemnify and hold harmless the Company, each of its directors and officers and
each underwriter (if any) and each person, if any, who controls the Company or
any such underwriter within the meaning of the Securities Act or the Exchange
Act, against any losses, claims, damages or liabilities, joint or several, to
which the Company, such directors and officers, underwriter or controlling
person may become subject under the Securities Act, Exchange Act, state
securities or Blue Sky laws or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are based
upon (i) any untrue statement or alleged untrue statement of a material fact
contained in the Registration Statement, any preliminary prospectus or final
prospectus contained in the Registration Statement, or any amendment or
supplement to the Registration Statement, or (ii) any omission or alleged
omission to state a material fact required to be stated therein or necessary to
make the statements therein not misleading, if and to the extent (and only to
the extent) that the statement or omission was made in reliance upon and in
conformity with written information relating to such Rightsholder furnished to
the Company by such
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Rightsholder and stated to be specifically for use in connection with such
Registration Statement, prospectus, amendment or supplement; provided, however,
that the obligations of a Rightsholder hereunder shall be limited to an amount
equal to the net proceeds to such Rightsholder of Registrable Securities sold in
connection with such registration.
(c) Each Indemnified Party shall give notice to the
Indemnifying Party promptly after such Indemnified Party has actual knowledge of
any claim as to which indemnity may be sought, and shall permit the Indemnifying
Party to assume the defense of any such claim or any litigation resulting
therefrom; provided, that counsel for the Indemnifying Party, who shall conduct
the defense of such claim or litigation, shall be approved by the Indemnified
Party (whose approval shall not be unreasonably withheld, conditioned or
delayed); and, provided, further, that the failure of any Indemnified Party to
give notice as provided herein shall not relieve the Indemnifying Party of its
obligations under this Section 7 except to the extent that the Indemnifying
Party is adversely affected by such failure. The Indemnified Party may
participate in such defense at such party's expense; provided, however, that the
Indemnifying Party shall pay such expense if the Indemnified Party reasonably
concludes based upon written advice of its counsel that representation of such
Indemnified Party by the counsel retained by the Indemnifying Party would be
inappropriate due to actual or potential differing interests between the
Indemnified Party and any other party represented by such counsel in such
proceeding; provided further that in no event shall the Indemnifying Party be
required to pay the expenses of more than one law firm per jurisdiction as
counsel for the Indemnified Party. The Indemnifying Party also shall be
responsible for the expenses of such defense if the Indemnifying Party does not
elect to assume such defense. No Indemnifying Party, in the defense of any such
claim or litigation shall, except with the consent of each Indemnified Party,
consent to entry of any judgment or enter into any settlement which does not
include as an unconditional term thereof the giving by the claimant or plaintiff
to such Indemnified Party of a release from all liability in respect of such
claim or litigation, and no Indemnified Party shall consent to entry of any
judgment or settle such claim or litigation without the prior written consent of
the Indemnifying Party, which consent shall not be unreasonably withheld,
conditioned or delayed.
(d) In order to provide for just and equitable
contribution in circumstances in which the indemnification provided for in this
Section 7 is due in accordance with its terms but for any reason is held to be
unavailable to an Indemnified Party in respect to any losses, claims, damages
and liabilities referred to herein, then the Indemnifying Party shall, in lieu
of indemnifying such Indemnified Party, contribute to the amount paid or payable
by such Indemnified Party as a result of such losses, claims, damages or
liabilities to which such party may be subject in such proportion as is
appropriate to reflect the relative fault of the Company on the one hand and the
Rightsholders on the other in connection with the statements or omissions which
resulted in such losses, claims, damages or liabilities, as well as any other
relevant equitable considerations. The relative fault of the Company and the
Rightsholders shall be determined by reference to, among other things, whether
the untrue or alleged untrue statement of material fact related to information
supplied by the Company or the Rightsholders and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission. The Company and the Rightsholders agree that it would not
be just and equitable if contribution pursuant to this Section 7(d) were
determined by pro rata allocation or by any other method of allocation which
does not take account of the equitable considerations referred to above.
Notwithstanding the provisions of this Section 7(d), (i) in no case shall any
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one Rightsholder be liable or responsible for any amount in excess of the gross
proceeds received by such Rightsholder from the offering of Registrable
Securities and (ii) the Company shall be liable and responsible for any amount
in excess of such proceeds; provided, however, that no person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. Any party entitled to contribution
will, promptly after receipt of notice of commencement of any action, suit or
proceeding against such party in respect of which a claim for contribution may
be made against another party or parties under this Section 7(d), notify such
party or parties from whom contribution may be sought, but the omission so to
notify such party or parties from whom contribution may be sought shall not
relieve such party from any other obligation it or they may have thereunder or
otherwise under this Section 7(d) except to the extent that the party or parties
from whom contribution may be sought are adversely affected. No party shall be
liable for contribution with respect to any action, suit, proceeding or claim
settled without its prior written consent, which consent shall not be
unreasonably withheld, conditioned or delayed.
8. Reporting. With a view to making available to the
Rightsholders the benefits of Rule 144 promulgated under the Securities Act or
any other similar rule or regulation of the Commission that may at any time
permit the Rightsholders to sell securities of the Company to the public without
registration ("Rule 144"), for so long as Rightsholders continue to own
Registrable Securities, the Company shall use its reasonable efforts to:
(a) make and keep public information available, as those
terms are understood and defined in Rule 144 and file with the Commission in a
timely manner all reports and other documents required of the Company under the
Securities Act and the Exchange Act; and
(b) furnish to each Rightsholder, for so long as such
Rightsholder owns Registrable Securities, promptly upon request, (i) a written
statement by the Company, if true, that it has complied with the applicable
reporting requirements of Rule 144, the Securities Act and the Exchange Act,
(ii) a copy of the most recent annual or quarterly report of the Company and
(iii) such other information as may be reasonably requested to permit the
Rightsholders to sell such securities pursuant to Rule 144 without registration.
9. Assignment of Registration Rights. The rights under this
Agreement shall not be assigned by any Rightsholder except in connection with
the transfer of Registrable Securities by such Rightsholder to an affiliate of
such Rightsholder, provided that (i) the Rightsholder agrees in writing with the
transferee or assignee to assign such rights, and a copy of such agreement is
furnished to the Company; (ii) the Company is furnished with written notice of
(a) the name and address of such transferee or assignee, and (b) the securities
with respect to which such rights are being transferred or assigned; (iii) at or
before the time the Company receives the written notice contemplated by clause
(ii) of this sentence, the transferee or assignee agrees in writing with the
Company to be bound by all of the obligations of an Rightsholder under this
Agreement; and (iv) such transfer shall have been conducted in accordance with
all applicable federal and state securities laws.
10. Amendment of Registration Rights.
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(a) Any provision of this Agreement may be amended and
the observance of any provision of this Agreement may be waived (either
generally or in a particular instance and either retroactively or
prospectively), only with the written consent of the Company and Rightsholders
who then hold at least a majority of the Registrable Securities. Any amendment
or waiver effected in accordance with this Section 10 shall be binding upon each
Rightsholder and the Company. No such amendment shall be effective to the extent
that it applies to less than all of the holders of the Registrable Securities.
No consideration shall be offered or paid to any Person to amend or consent to a
waiver or modification of any provision of any of this Agreement unless the same
consideration also is offered to all of the parties to this Agreement.
(b) In the event that the Company issues and sells Units
as part of the Unit Offering after the date hereof, the Company shall have the
right to amend this Agreement without the consent of the Rightsholders to
include the purchasers of such Units in this Agreement as Purchasers and
Rightsholders and any placement agent or selected dealer that receives warrants
in connection with the sale of such Units as an Agent and Rightsholder and in
connection therewith to modify the Schedule of Purchasers to include such
Purchaser and the Schedule of Agents to include such Agent.
11. Miscellaneous.
(a) A Person is deemed to be a holder of Registrable
Securities whenever such Person owns or is deemed to own of record such
Registrable Securities. If the Company receives conflicting instructions,
notices or elections from two or more Persons with respect to the same
Registrable Securities, the Company shall act upon the basis of instructions,
notice or election received from the record owner of such Registrable
Securities.
(b) Any notices, consents, waivers or other
communications required or permitted to be given under the terms of this
Agreement must be in writing and will be deemed to have been delivered: (i) upon
receipt, when delivered personally; (ii) upon receipt, when sent by facsimile;
or (iii) two (2) Business Days after deposit with a reputable overnight delivery
service, in each case properly addressed to the party to receive the same. The
addresses and facsimile numbers for such communications shall be:
If to the Company:
Hybridon, Inc.
000 Xxxxxx Xxxxxx
Xxxxxxxxx, XX 00000-0000
Telephone: 000-000-0000
Facsimile: 000-000-0000
Attention: Chief Executive Officer
with a copy to:
Xxxx and Xxxx LLP
00 Xxxxx Xxxxxx
0
Xxxxxx, XX 00000
Telephone: 000-000-0000
Facsimile: 617-526-5000
Attention: Xxxxx X. Xxxxxxx, Esq.
If to a Rightsholder, to its address and facsimile number set forth on
the Schedule of Purchasers or on the Schedule of Agents, as the case
may be, or to such other address and/or facsimile number and/or to the
attention of such other Person as the recipient party has specified by
written notice given to each other party five (5) days prior to the
effectiveness of such change.
Written confirmation of receipt (A) given by the recipient of such
notice, consent, waiver or other communication, (B) mechanically or
electronically generated by the sender's facsimile machine containing the time,
date, recipient facsimile number and an image of the first page of such
transmission, or (C) provided by a courier or overnight courier service shall be
rebuttable evidence of personal service, receipt by facsimile or receipt from a
reputable overnight delivery service in accordance with clause (i), (ii) or
(iii) above, respectively.
(c) Failure of any party to exercise any right or remedy
under this Agreement or otherwise, or delay by a party in exercising such right
or remedy, shall not operate as a waiver thereof.
(d) All questions concerning the construction, validity,
enforcement and interpretation of this Agreement shall be governed by the
internal laws of the State of Delaware, without giving effect to any choice of
law or conflict of law provision or rule (whether of the State of Delaware or
any other jurisdictions) that would cause the application of the laws of any
jurisdictions other than the State of Delaware.
(e) This Agreement and the documents referenced herein
constitute the entire agreement among the parties hereto with respect to the
subject matter hereof and thereof. There are no restrictions, promises,
warranties or undertakings, other than those set forth or referred to herein and
therein. This Agreement and the documents referenced herein supersede all prior
agreements and understandings among the parties hereto with respect to the
subject matter hereof.
(f) Subject to the requirements of Section 9 of this
Agreement, this Agreement shall inure to the benefit of and be binding upon the
permitted successors and assigns of each of the parties hereto.
(g) The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(h) This Agreement may be executed in identical
counterparts, each of which shall be deemed an original but all of which shall
constitute one and the same agreement. This Agreement, once executed by a party,
may be delivered to the other parties hereto by facsimile
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transmission of a copy of this Agreement bearing the signature of the party so
delivering this Agreement.
(i) Each party shall do and perform, or cause to be done
and performed, all such further acts and things, and shall execute and deliver
all such other agreements, certificates, instruments and documents, as the other
party may reasonably request in order to carry out the intent and accomplish the
purposes of this Agreement and the consummation of the transactions contemplated
hereby.
(j) All consents and other determinations required to be
made by the Rightsholders pursuant to this Agreement shall be made, unless
otherwise specified in this Agreement, by Rightsholders holding at least a
majority of the Registrable Securities.
(k) The language used in this Agreement will be deemed to
be the language chosen by the parties to express their mutual intent and no
rules of strict construction will be applied against any party.
(l) This Agreement is intended for the benefit of the
parties hereto and their respective permitted successors and assigns, and is not
for the benefit of, nor may any provision hereof be enforced by, any other
Person.
IN WITNESS WHEREOF, the parties have caused this Registration Rights
Agreement to be duly executed as of the day and year first above written.
COMPANY:
HYBRIDON, INC.
By: /s/ Xxxxxxx X. Xxxxxx
-------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Chief Executive Officer
PURCHASERS:
Counterpart signature pages attached.
AGENTS:
Counterpart signature pages attached.
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Exhibit A
Schedule of Purchasers
Name and Address Registrable Securities
---------------- ----------------------
Exhibit B
Schedule of Agents
Name and Address Registrable Securities
---------------- ----------------------
