EXHIBIT 4.14
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement is made and entered into as
of July 30, 2002 (this "Agreement"), by and between IntegraMed America, Inc., a
Delaware corporation (the "Company"), and the entities listed on Exhibit A
hereto (each, a "Purchaser" and, collectively, the "Purchasers").
WHEREAS, upon the terms and subject to the conditions of the
Securities Purchase Agreement, dated as of the date hereof (the "Purchase
Agreement"), the Company has agreed to issue and sell shares of its Common Stock
and Warrants to purchase shares of its Common Stock to the Purchasers; and
WHEREAS, to induce the Purchasers to execute and deliver the
Purchase Agreement and to purchase the Shares and the Warrants (each as
respectively defined in the Purchase Agreement), the Company has agreed to
provide certain registration rights under the Securities Act of 1933, as amended
(the "Securities Act"), with respect to the Shares and the Warrant Shares (as
defined in the Purchase Agreement).
NOW, THEREFORE, in consideration of the representations,
warranties and agreements contained herein and other good and valuable
consideration, the receipt and legal adequacy of which is hereby acknowledged by
the parties, the Company and the Purchasers hereby agree as follows:
1. Definitions.
-----------
Capitalized terms used and not otherwise defined herein shall
have the meanings given such terms in the Purchase Agreement. As used in this
Agreement, the following terms shall have the following meanings:
"Affiliate" means, with respect to any Person, any other
Person that directly or indirectly controls or is controlled by or under common
control with such Person or any officer or director of such other Person. For
the purposes of this definition, "control," when used with respect to any
Person, means the possession, direct or indirect, of the power to direct or
cause the direction of the management and policies of such Person, whether
through the ownership of voting securities, by contract or otherwise; and the
terms "affiliated," "controlling" and "controlled" have meanings correlative to
the foregoing.
"Blackout Period" shall have the meaning set forth in Section
3(m).
"Board" shall have the meaning set forth in Section 3(m).
"Business Day" means any day except Saturday, Sunday and any
day which is a legal holiday or a day on which banking institutions in the state
of New York generally are authorized or required by law or other government
actions to close.
-1-
"Commission" means the Securities and Exchange Commission.
"Common Shares" shall have the meaning set forth in the
definition of "Registrable Securities."
"Common Stock" means the Company's Common Stock, $.01 par
value.
"Effectiveness Date" means with respect to the Registration
Statement the earlier of (x) the 90th day following the Closing Date, before
which the Company will use its best efforts to cause the Registration Statement
to become effective and (y) the date which is within five (5) Business Days
after the date on which the Commission informs the Company that the Commission
(i) will not review the Registration Statement or (ii) that the Company may
request the acceleration of the effectiveness of the Registration Statement.
"Effectiveness Period" shall have the meaning set forth in
Section 2.
"Event" shall have the meaning set forth in Section 8(d).
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Filing Date" means the date that the Registration Statement
is required to be filed, which date shall be within thirty days following the
Closing Date.
"Holder" means collectively, each holder from time to time of
Registrable Securities including, without limitation, each Purchaser and its
assignees. To the extent this Agreement refers to an election, consent, waiver,
request or approval of or by a Holder, such reference shall mean an election,
consent, waiver, request or approval by the Holders of a majority in interest of
the then-outstanding Registrable Securities.
"Indemnified Party" shall have the meaning set forth in
Section 6(c).
"Indemnifying Party" shall have the meaning set forth in
Section 6(c).
"Liquidated Damages" shall have the meaning set forth in
Section 8(d).
"Losses" shall have the meaning set forth in Section 5(a).
"NMS" shall mean the Nasdaq National Market.
"Person" means an individual or a corporation, partnership,
trust, incorporated or unincorporated association, joint venture, limited
liability company, joint stock company, government (or an agency or political
subdivision thereof) or other entity of any kind.
"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.
-2-
"Prospectus" means the prospectus included in the 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 the Registration Statement, and all other amendments and
supplements to the Prospectus, including post-effective amendments, and all
material incorporated by reference in such Prospectus.
"Registrable Securities" means the shares of Common Stock
issued and issuable pursuant to the Purchase Agreement and the Warrants, as the
case may be, and upon any stock split, stock dividend, distribution,
recapitalization or similar event with respect to such shares of Common Stock
and any other securities issued in exchange of or replacement of such shares of
Common Stock (collectively, the "Common Shares"); until in the case of any of
the Common Shares (i) a Registration Statement covering such Common Share has
been declared effective by the SEC and continues to be effective during the
Effectiveness Period; or (ii) such Common Share is sold in compliance with Rule
144 or may be sold pursuant to Rule 144(k), and, as a result of the event or
circumstances described in clauses (i) or (ii) above, the legends with respect
to transfer restrictions required under the Purchase Agreement are removed or
removable in accordance with the terms of the Purchase Agreement, after which
time such Common Share shall not be a Registrable Security.
"Registration Statement" means any registration statement of
the Company which covers the sale of any of the Registrable Securities pursuant
to the provisions of this Agreement, including 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 in such registration statement.
"Rule 144" means Rule 144 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 effect as such Rule.
"Rule 158" means Rule 158 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 effect as such Rule.
"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 effect as such Rule.
"Securities Act" means the Securities Act of 1933, as amended.
"Special Counsel" means the special counsel specified by the
Holders, in writing, holding at least a majority of the Registrable Securities.
-3-
2. Registration. On or prior to the Filing Date the Company
shall prepare and file with the Commission a Registration Statement covering the
resale of the Registered Securities 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 with the Securities Act and the rules
promulgated thereunder) and shall contain (except if otherwise directed by the
Purchaser) the "Plan of Distribution" attached hereto as Exhibit B. The Company
shall (i) not permit any securities other than the Registrable Securities to be
included in the Registration Statement, other than the securities described in
Schedule 1 hereto, (ii) use its best efforts to cause the Registration Statement
to be declared effective under the Securities Act (including filing with the
Commission a request for acceleration of effectiveness in accordance with Rule
461 promulgated under the Securities Act within five (5) Business 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
be subject to further review) as soon as possible after the filing thereof, but
in any event prior to the Effectiveness Date, and to keep such Registration
Statement continuously effective under the Securities Act until such date as is
the earlier of (x) the date when all Registrable Securities covered by such
Registration Statement have been sold or (y) the date on which all Registrable
Securities may be sold within any three-month period pursuant to Rule 144 as
determined by the counsel to the Company (the "Effectiveness Period"). Subject
to Section 3(m), if the initial Registration Statement or any subsequent
Registration Statement ceases to be effective for any reason as a result of the
issuance of a stop order by the Commission at any time during the Effectiveness
Period, the Company shall use its best efforts to obtain the prompt withdrawal
of any order suspending the effectiveness thereof, and in any event shall within
30 days of such cessation of effectiveness amend such Registration Statement in
a manner reasonably expected to obtain the withdrawal of the order suspending
the effectiveness thereof, or file an additional Registration Statement covering
all of the Registrable Securities. If such an additional Registration Statement
is filed, the Company shall use its best efforts to cause such additional
Registration Statement to be declared effective as soon as practicable after
such filing and to keep such additional Registration Statement continuously
effective until the end of the Effectiveness Period.
3. Registration Procedures; Company's Obligations.
----------------------------------------------
In connection with the registration of the Registrable
Securities, the Company shall:
-4-
(a) Prepare and file with the Commission on or prior to the
Filing Date, a Registration Statement on Form S-3 (or if the Company is not then
eligible to register for resale the Registrable Securities on Form S-3 such
registration shall be on another appropriate form in accordance with the
Securities Act and the Rules promulgated thereunder) in accordance with the
method or methods of distribution thereof as specified by the Holder (except if
otherwise directed by the Holder), and use its best efforts to cause the
Registration Statement to become effective and remain effective as provided
herein; provided, however, that not less than three (3) Business Days prior to
the filing of the Registration Statement or any related Prospectus or any
amendment or supplement thereto, the Company shall (i) furnish to the Holder and
any Special Counsel, copies of all such documents proposed to be filed, which
documents will be subject to the timely review of such Special Counsel, and (ii)
at the reasonable request of the Holder 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 counsel to such
Holder, 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 Holder or
any Special Counsel shall reasonably object in writing within three (3) Business
Days of their receipt thereof except to the extent required by law.
(b) (i) Prepare and file with the Commission such amendments,
including post-effective amendments, to the Registration Statement as may be
necessary to keep the Registration Statement continuously effective as to the
applicable Registrable Securities for the Effectiveness Period 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, and as so supplemented or amended to be filed pursuant to
Rule 424 (or any similar provisions then in force) promulgated under the
Securities Act; (iii) respond promptly to any comments received from the
Commission with respect to the 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 the Registration Statement during the Effectiveness Period
in accordance with the intended methods of disposition by the Holders thereof
set forth in the Registration Statement as so amended or in such Prospectus as
so supplemented. Subject to Section 3(m), the Company shall ensure that (i) any
Registration Statement and any amendment thereto and any Prospectus forming a
part thereof and any amendment or supplement thereto complies in all material
respects with the Securities Act and the rules and regulations thereunder, (ii)
any Registration Statement and any amendment thereto does not, when it becomes
effective, 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 and (iii) any Prospectus forming part of any Registration Statement,
and any amendment or supplement to such Prospectus, does not include an untrue
statement of a material fact or omit to state a material fact necessary in order
to make the statements therein, in the light of the circumstances under which
they were made, not misleading.
-5-
(c) Notify the Holder of Registrable Securities to be sold
and any Special Counsel promptly (and, in the case of (i)(A) below, not less
than three (3) Business Days prior to such filing and, in the case of (i)(B) or
(i)(C) below, no later than the first (1st) business day following the date on
which the Registration Statement becomes effective) and (if requested by any
such Person) confirm such notice in writing no later than three (3) Business
Days following the day (i)(A) when a Prospectus or any Prospectus supplement or
post-effective amendment to the 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 (C) with respect to the 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 the Registration Statement or Prospectus or for
additional information; (iii) of the issuance by the Commission of any stop
order suspending the effectiveness of the 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; and (v) of the occurrence of any
event that makes any statement made in the 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 the
Registration Statement, Prospectus or other documents so that, in the case of
the 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 the light of the circumstances under which they were made, not misleading.
(d) Use its reasonable best efforts to avoid the issuance of,
or, if issued, obtain the withdrawal of, (i) any order suspending the
effectiveness of the Registration Statement or (ii) any suspension of the
qualification (or exemption from qualification) of any of the Registrable
Securities for sale in any U.S. jurisdiction, at the earliest practicable
moment; provided that the Company shall not be required to qualify to do
business in any state where it is not then qualified to take action that would
subject it to tax or to general service of process.
-6-
(e) If requested by the Holder, (i) promptly incorporate in a
Prospectus supplement or post-effective amendment to the Registration Statement
such information as the Holder and the Company reasonably agree should be
included therein and (ii) make all required filings of such Prospectus
supplement or such post-effective amendment as soon as practicable after the
Company has received notification of the matters to be incorporated in such
Prospectus supplement or post-effective amendment.
(f) At the request of any Holder, furnish to the Holder and
any Special Counsel, without charge, at least one conformed copy of each
Registration Statement and each amendment thereto, including financial
statements and schedules, 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 the Holder and any Special Counsel,
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; and the Company hereby consents to the use of such
Prospectus and each amendment or supplement thereto by the selling Holder in
connection with the offering and sale of the Registrable Securities covered by
such Prospectus or any amendment or supplement thereto.
(h) Prior to any public offering of Registrable Securities,
use its best efforts to register or qualify or cooperate with the selling
Holders and any Special Counsel in connection with the registration or
qualification (or exemption from such registration or qualification) of such
Registrable Securities for offer and sale under the securities or Blue Sky laws
of such jurisdictions within the United States as the Holder reasonably requests
in writing, to keep each such registration or qualification (or exemption
therefrom) effective during the Effectiveness Period and to do any and all other
acts or things necessary or advisable to enable the disposition in such
jurisdictions of the Registrable Securities covered by a Registration Statement;
provided, however, that the Company shall not be required to qualify generally
to do business in any jurisdiction where it is not then so qualified or to take
any action that would subject it to general service of process in any such
jurisdiction where it is not then so subject or subject the Company to any tax
in any such jurisdiction where it is not then so subject.
-7-
(i) Cooperate with the Holder to facilitate the timely
preparation and delivery of certificates representing Registrable Securities to
be sold pursuant to a Registration Statement and to enable such Registrable
Securities to be in such denominations and registered in such names as the
Holder may request at least two (2) Business Days prior to any sale of
Registrable Securities in a form eligible for deposit with The Depository Trust
Company and not later than the effectiveness date of any Registration Statement
hereunder, provide a CUSIP number for the Registrable Securities registered
under such Registration Statement.
(j) Subject to 3(m) below, upon the occurrence of any event
contemplated by Section 3(c)(v), promptly prepare a supplement or amendment,
including a post-effective amendment, to the 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 the 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 the light of the circumstances under which they were
made, not misleading.
(k) Use its best efforts to cause all Registrable Securities
relating to a Registration Statement to be listed on the NMS and any other
securities exchange, quotation system, market or over-the-counter bulletin
board, if any, on which the same class of securities issued by the Company are
then listed.
(l) Comply in all material respects with all applicable rules
and regulations of the Commission and make generally available to its security
holders earning statements satisfying the provisions of Section 11(a) of the
Securities Act and Rule 158 not later than forty-five (45) days after the end of
any twelve (12) month period (or ninety (90) days after the end of any twelve
(12) month period if such period is a fiscal year) commencing on the first day
of the first fiscal quarter of the Company after the effective date of the
Registration Statement, which statement shall conform to the requirements of
Rule 158.
(m) If (i) there is material non-public information regarding
the Company which the Company's Board of Directors (the "Board") reasonably
determines not to be in the Company's best interest to disclose and which the
Company is not otherwise required to disclose, or (ii) there is a significant
business opportunity (including, but not limited to, the acquisition or
disposition of assets (other than in the ordinary course of business) or any
merger, consolidation, tender offer, financing or other similar transaction)
available to the Company which the Board reasonably determines not to be in the
Company's best interest to disclose and which the Company would be required to
disclose under the Registration Statement, then the Company may suspend
effectiveness of a registration statement and suspend the sale of Registrable
Securities under a Registration Statement one (1) time every four (4) months or
three (3) times in any twelve month period, provided that the Company may not
suspend its obligation for more than forty five (45) days for any one suspension
period, and not more than ninety (90) days in the aggregate in any twelve month
period (each, a "Blackout Period").
-8-
(n) Within two (2) Business Days after the Registration
Statement which includes the Registrable Securities is ordered effective by the
Commission, the Company shall deliver, and shall cause legal counsel for the
Company to deliver, to the transfer agent for such Registrable Securities (with
copies to the Holder whose Registrable Securities are included in such
Registration Statement) confirmation that the Registration Statement has been
declared effective by the Commission in the form attached hereto as Exhibit C.
(o) Cooperate and assist in any filing required to be made
with the National Association of Securities Dealers, Inc.
4. Registration Procedures; Holder's Obligations
In connection with the registration of the Registrable
Securities, the Holder shall:
(a) If the Registration Statement refers to the Holder by
name or otherwise as the holder of any securities of the Company, have the right
to require (if such reference to the Holder by name or otherwise is not required
by the Securities Act or any similar federal statute then in force) the deletion
of the reference to the Holder in any amendment or supplement to the
Registration Statement filed or prepared subsequent to the time that such
reference ceases to be required.
(b) (i) not sell any Registrable Securities under the
Registration Statement until it has received copies of the Prospectus as then
amended or supplemented as contemplated in Section 3(g) and notice from the
Company that such Registration Statement and any post-effective amendments
thereto have become effective as contemplated by Section 3(c), (ii) 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, (iii) furnish to the Company information regarding such Holder and
the distribution of such Registrable Securities as is required by law to be
disclosed in the Registration Statement and (iv) notify the Company of any sale
of Registrable Securities pursuant to the Registration Statement, and the
Company may exclude from such registration the Registrable Securities of the
Holder if it fails to furnish such information within a reasonable time prior to
the filing of each Registration Statement, supplemented Prospectus and/or
amended Registration Statement.
(c) upon receipt of a notice from the Company of the
occurrence of any event of the kind described in Section 3(c)(ii), 3(c)(iii),
3(c)(iv), 3(c)(v) or 3(m), forthwith discontinue disposition of such Registrable
Securities under the Registration Statement until the Holder's receipt of the
copies of the supplemented Prospectus and/or amended Registration Statement
contemplated by Section 3(j), or until it is advised in writing 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.
-9-
5. Registration Expenses
All reasonable 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 of the Registration Statements are filed or become
effective and whether or not any Registrable Securities are sold pursuant to
such Registration Statements. The fees and expenses referred to in the foregoing
sentence shall include, without limitation the following: (i) all registration
and filing fees (including, without limitation, fees and expenses (A) with
respect to filings required to be made with the NMS and each other securities
exchange or market on which Registrable Securities are required hereunder to be
listed and the National Association of Securities Dealers, Inc., (B) with
respect to filings required to be made with the Commission, and (C) in
compliance with state securities or Blue Sky laws), (ii) printing expenses
(including, without limitation, expenses of printing certificates for
Registrable Securities and of printing prospectuses), (iii) fees and
disbursements of counsel for the Company and (iv) fees and expenses of all other
Persons retained by the Company in connection with the consummation of the
transactions contemplated by this Agreement, including, without limitation, the
Company's independent public accountants (including the expenses of any comfort
letters or costs associated with the delivery by independent public accountants
of a comfort letter or comfort letters). 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, the
fees and expenses incurred in connection with the listing of the Registrable
Securities on any securities exchange as required hereunder and the fees and
expenses of any Person, including special experts, retained by the Company.
6. Indemnification
(a) Indemnification by the Company. The Company shall, notwithstanding any
termination of this Agreement, indemnify and hold harmless the Purchaser, its
permitted assignees, officers, directors, agents, brokers (including brokers who
offer and sell Registrable Securities as principal as a result of a pledge or
any failure to perform under a margin call of Common Stock), investment advisors
and employees, each Person who controls any such Purchaser or permitted assignee
(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, and the respective successors, assigns, estate and personal
representatives of each of the foregoing, to the fullest extent permitted by
applicable law, from and against any and all claims, losses, damages,
liabilities, penalties, judgments, costs (including, without limitation, costs
of investigation) and expenses (including, without limitation, reasonable
attorneys' fees and expenses) (collectively, "Losses"), arising out of or
relating to (i) any untrue or alleged untrue statement of a material fact
contained in any Registration Statement, any Prospectus, as supplemented or
amended, if applicable, or (ii) 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
the light of the circumstances under which they were made) not misleading,
except (A) to the extent, but only to the extent, that such untrue statements or
omissions are based solely upon information regarding the Holder furnished in
writing to the Company by the Holder expressly for use therein, or (B) as a
result of the failure of the Holder to deliver a Prospectus, as amended or
supplemented, to a purchaser in connection with an offer or sale. The Company
shall notify the Holder promptly of the institution, threat or assertion of any
Proceeding of which the Company is aware in connection with the transactions
contemplated by this Agreement. Such indemnity shall remain in full force and
effect regardless of any investigation made by or on behalf of an Indemnified
Party (as defined in Section 6(c) hereof) and shall survive the transfer of the
Registrable Securities by the Holder.
-10-
(b) Indemnification by Purchaser. Purchaser and its permitted
assignees 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, and the respective successors, assigns, estate and
personal representatives of each of the foregoing, to the fullest extent
permitted by applicable law, from and against all Losses, as incurred, to the
extent and only to the extent arising out of or to the extent and only to the
extent relating to any untrue or alleged untrue statement of a material fact
contained in any Registration Statement, any Prospectus, as supplemented or
amended, if applicable, or to the extent and only to the extent arising out of
or to the extent and only to the extent 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 the light of the circumstances under which they were
made) not misleading, to the extent, but only to the extent, that such untrue
statement or alleged untrue statement or omission or alleged omission is
contained in or omitted from any information so furnished in writing by the
Holder or the Special Counsel to the Company specifically for inclusion in such
Registration Statement or such Prospectus and that such information was
reasonably relied upon by the Company for use in such Registration Statement,
such Prospectus or such form of prospectus; provided, however, that the Holder
shall not be liable for any such untrue or alleged untrue statement or omission
or alleged omission of which the Holder has delivered to the Company in writing
a correction sufficiently in advance of the occurrence of the transaction from
which such Loss was incurred so that a correction could have been made.
Notwithstanding anything to the contrary contained herein, the Holder shall be
liable under this Section 6(b) for only that amount as does not exceed the net
proceeds to the Holder as a result of the sale of Registrable Securities
pursuant to such Registration Statement.
(c) Conduct of Indemnification Proceedings. If any Proceeding
shall be brought or asserted against any Person entitled to indemnity pursuant
to Section 6(a) or 6(b) hereunder (an "Indemnified Party"), such Indemnified
Party promptly shall notify the Person from whom indemnity is sought (the
"Indemnifying Party) in writing, and the Indemnifying Party shall 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 materially and adversely prejudiced the Indemnifying Party.
-11-
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; or (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 have been advised by counsel reasonably acceptable to
the Indemnifying Party that a 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 such counsel shall be at the expense of the Indemnifying
Party, provided that the Indemnifying Party shall not be liable for more than
one separate counsel. The Indemnifying Party shall not be liable for any
settlement of any such Proceeding effected without its written consent. No
Indemnifying Party shall, without the prior written consent of the Indemnified
Party, which consent shall not unreasonably be withheld, 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.
All reasonable fees and expenses of the Indemnified Party
(including reasonable fees and expenses to the extent incurred in connection
with investigating or preparing to defend such Proceeding in a manner not
inconsistent with this Section) shall be paid to the Indemnified Party, as
incurred, within twenty (20) Business Days of written notice thereof
(accompanied by evidence of such expense as shall be reasonably requested by the
Company) to the Indemnifying Party (regardless of whether it is ultimately
determined that an Indemnified Party is not entitled to indemnification
hereunder; provided, that the Indemnifying Party may require such Indemnified
Party to undertake to reimburse all such fees and expenses to the extent it is
finally judicially determined that such Indemnified Party is not entitled to
indemnification hereunder or pursuant to applicable law).
-12-
(d) Contribution. If a claim for indemnification under
Section 6(a) or 6(b) is unavailable to an Indemnified Party because of a failure
or refusal of a governmental authority to enforce such indemnification in
accordance with its terms (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 Section 6(c), 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 under Section 6(a) or 6(b) was available to such
party in accordance with its terms. Notwithstanding anything to the contrary
contained herein, the Holder shall be liable or required to contribute under
this Section 6(d) for only that amount as does not exceed the net proceeds to
the Holder as a result of the sale of Registrable Securities pursuant to a
Registration Statement.
The parties hereto agree that it would not be just and
equitable if contribution pursuant to this Section 6(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. 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.
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.
7. Rule 144.
--------
As long as the Holder owns Registrable Securities, the Company
covenants to timely file (or obtain extensions in respect thereof and file
within the applicable grace period) all reports required to be filed by the
Company after the date hereof pursuant to Section 13(a) or 15(d) of the Exchange
Act. As long as the Holder owns Registrable Securities, if the Company is not
required to file reports pursuant to Section 13(a) or 15(d) of the Exchange Act,
it will prepare and furnish to the Holders and make publicly available in
accordance with Rule 144(c) promulgated under the Securities Act annual and
quarterly financial statements, together with a discussion and analysis of such
financial statements in form and substance substantially similar to those that
would otherwise be required to be included in reports required by Section 13(a)
or 15(d) of the Exchange Act, as well as any other information required thereby,
in the time period that such filings would have been required to have been made
under the Exchange Act. The Company further covenants that it will take such
further action as the Holder may reasonably request, all to the extent required
from time to time to enable the Holder to sell Common Shares without
registration under the Securities Act within the limitation of the exemptions
provided by Rule 144, including providing any legal opinions of counsel to the
Company referred to in the Purchase Agreement. Upon the request of any Holder,
the Company shall deliver to such Holder a written certification of a duly
authorized officer as to whether it has complied with such requirements.
-13-
8. Miscellaneous.
-------------
(a) Remedies. The remedies provided in this Agreement and the
Purchase Agreement are cumulative and not exclusive of any remedies provided by
law. In the event of a breach by the Company or by the Holder, of any of their
obligations under this Agreement, the 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. Each of the Company and the
Holder agrees that monetary damages would not provide adequate compensation for
any losses incurred by reason of a breach by either of them 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) No Inconsistent Agreements. Neither the Company nor any
of its subsidiaries has, as of the date hereof entered into and currently in
effect, nor shall the Company or any of its Affiliates, on or after the date of
this Agreement, enter into any agreement with respect to its securities that is
inconsistent with the rights granted to the Holders in this Agreement or
otherwise conflicts with the provisions hereof. Without limiting the generality
of the foregoing, without the written consent of the Holder, the Company shall
not grant to any Person the right to request the Company to register any
securities of the Company under the Securities Act if the rights so granted are
inconsistent with the rights granted to Holders set forth herein, or otherwise
prevent the Company with complying with all of its obligations hereunder.
(c) No Piggyback on Registrations. Neither the Company nor
any of its security holders (other than the Holders in such capacity pursuant
hereto) may include securities of the Company in any Registration Statement.
(d) Failure to File Registration Statement and Other Events.
The Company and the Holders agree that the Holders will suffer damages if the
Registration Statement is not filed on or prior to the Filing Date and not
declared effective by the Commission on or prior to the Effectiveness Date and
maintained in the manner contemplated herein during the Effectiveness Period or
if certain other events occur. The Company and the Holders further agree that it
would not be feasible to ascertain the extent of such damages with precision.
Accordingly, if (i) the Registration Statement is not filed on or prior to the
Filing Date, or is not declared effective by the Commission on or prior to the
Effectiveness Date (or in the event an additional Registration Statement is not
filed and declared effective within the time periods set forth in Section 2), 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 (5)
Business 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, or (iii) the Registration
Statement is filed with and declared effective by the Commission but thereafter
ceases to be effective as to all Registrable Securities at any time during the
Effectiveness Period, without being succeeded within ninety (90) days by a
subsequent Registration Statement (or post-effective amendment to the same
Registration Statement) filed with and declared effective by the Commission, or
(iv) during the Effectiveness Period, trading in the Common Stock shall be
suspended for any reason for more than three (3) Business Days in the aggregate
(other than a suspension in trading on NMS or such other exchange or trading
-14-
system on which the Common Stock is then listed or quoted) (any such failure or
breach being referred to as an "Event"), the Company shall pay as liquidated
damages for such failure and not as a penalty (the "Liquidated Damages") to the
Holder an amount equal to one and one-half percent (1 1/2%) of the original
purchase price under the Purchase Agreement of the Registrable Securities held
of record by such Holder for each thirty (30) day period after the ninety (90)
day period from the Closing Date, pro rated for any period less than thirty (30)
days, following the Event until the applicable Event has been cured. Payments to
be made pursuant to this Section 8(d) shall be due and payable immediately upon
demand at the option of the Holders in cash. The parties agree that the
Liquidated Damages represent a reasonable estimate on the part of the parties,
as of the date of this Agreement, of the amount of damages that may be incurred
by the Holders if the Registration Statement is not filed on or prior to the
Filing Date or has not been declared effective by the Commission on or prior to
the Effectiveness Date and maintained in the manner contemplated herein during
the Effectiveness Period or if any other Event as described herein has occurred.
(e) Consent to Jurisdiction. Both the Company and the
Purchasers (i) hereby irrevocably submit to the jurisdiction of the United
States District Court for the Southern District of New York and the courts of
the State of New York located in New York county for the purposes of any suit,
action or proceeding arising out of or relating to this Agreement or the
Purchase Agreement and (ii) hereby waive, and agree not to assert in any such
suit, action or proceeding, any claim that it is not personally subject to the
jurisdiction of such court, that the suit, action or proceeding is brought in an
inconvenient forum or that the venue of the suit, action or proceeding is
improper. Both the Company and the Purchasers consent to process being served in
any such suit, action or proceeding by mailing a copy thereof to such party at
the address in effect for notices to it under this Agreement and agrees that
such service shall constitute good and sufficient service of process and notice
thereof. Nothing in this Section 8(e) shall affect or limit any right to serve
process in any other manner permitted by law.
(f) 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 the Purchasers holding a majority of the Registrable Securities.
-15-
(g) Notices. Any and all notices or other communications or
deliveries required or permitted to be provided hereunder shall be in writing
and shall be deemed given and effective on the earlier of (i) the date of
transmission, if such notice or communication is delivered via facsimile at the
facsimile telephone number specified for notice prior to 5:00 p.m., eastern
standard time, on a Business Day, (ii) the first Business Day after the date of
transmission, if such notice or communication is delivered via facsimile at the
facsimile telephone number specified for notice later than 5:00 p.m., eastern
time, on any date and earlier than 11:59 p.m., eastern time, on such date, (iii)
two Business Days following the date of mailing, if sent by nationally
recognized express courier service or (iv) actual receipt by the party to whom
such notice is required to be given.
(x) if to the Company:
IntegraMed America, Inc.
Xxx Xxxxxxxxxxxxxx Xxxx
Xxxxxxxx, XX 00000
Attention: Xxxxxxx Xxxxx
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
with a copy to:
Xxxxxx & Whitney LLP
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxx Xxxxxxx
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
(y) if to any Purchaser:
At the address of such Purchaser set
forth on Exhibit A to this
Agreement.
-16-
with copies to:
X.X. Xxxxxxxxxx & Co., Inc.
000 Xxxx Xxx., 00xx Xxxxx
Xxx Xxxx, XX 00000
Tel. No.: (000) 000-0000
Fax No.: (000) 000-0000
Attn: Xxxxx Xxxxx
Xxxxxxx
4000 Xxxx Atlantic Tower
0000 Xxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
Tel. No.: (000) 000-0000
Fax No.: (000) 000-0000
Attn: Xxxxxxxxxxx X. Xxxxxx
or to such other address or addresses or facsimile number or numbers as any such
party may most recently have designated in writing to the other parties hereto
by such notice.
(h) Successors and Assigns. This Agreement shall be binding
upon and inure to the benefit of the parties and their successors and permitted
assigns and shall inure to the benefit of the Holder and its successors and
assigns. The Company may not assign this Agreement or any of its respective
rights or obligations hereunder without the prior written consent of the
Purchaser.
(i) Assignment of Registration Rights. The rights of the
Holder hereunder, including the right to have the Company register for resale
Registrable Securities in accordance with the terms of this Agreement, shall be
assignable by each Holder to any transferee of the Holder of all or a portion of
the shares of Registrable Securities if: (i) the Holder agrees in writing with
the transferee or assignee to assign such rights, and a copy of such agreement
is furnished to the Company within a reasonable time after such assignment, (ii)
the Company is, within a reasonable time after such transfer or assignment,
furnished with written notice of (a) the name and address of such transferee or
assignee, and (b) the securities with respect to which such registration rights
are being transferred or assigned, (iii) following such transfer or assignment
the further disposition of such securities by the transferee or assignees is
restricted under the Securities Act and applicable state securities laws, (iv)
at or before the time the Company receives the written notice contemplated by
clause (ii) of this Section, the transferee or assignee agrees in writing with
the Company to be bound by all of the provisions of this Agreement, and (v) such
transfer shall have been made in accordance with the applicable requirements of
the Purchase Agreement and shall be for no less than 50% of all Registrable
Securities sold to that particular Holder by the Company. In addition, the
Holder shall have the right to assign its rights hereunder to any other Person
with the prior written consent of the Company. The rights to assignment shall
apply to the Holder and to subsequent successors and assigns. In the event of an
assignment, pursuant to this Section 8(i), the Purchaser shall pay all
incremental costs and expenses incurred by the Company in connection with the
filing of a Registration Statement (or an amendment to the Registration
Statement) to register the shares of Registrable Securities assigned to any
assignee or transferee of the Purchaser.
-17-
(j) 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.
(k) Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York, without regard
to principles of conflicts of law thereof. This Agreement shall not be
interpreted or construed with any presumption against the party causing this
Agreement to be drafted.
(l) Cumulative Remedies. The remedies provided herein are
cumulative and not exclusive of any remedies provided by law.
(m) Termination. This Agreement shall terminate on the date
on which all remaining Registrable Securities may be sold without restriction
pursuant to Rule 144(k) of the Securities Act.
(n) Severability. If any term, provision, covenant or
restriction of this Agreement is held to be invalid, illegal, void or
unenforceable in any respect, 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 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.
(o) Headings. The headings herein are for convenience only,
do not constitute a part of this Agreement and shall not be deemed to limit or
affect any of the provisions hereof.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
-18-
IN WITNESS WHEREOF, the parties hereto have caused this
Registration Rights Agreement to be duly executed by their respective authorized
persons as of the date first indicated above.
INTEGRAMED AMERICA, INC.
By:
-----------------------------------------
Name:
Title:
PURCHASER
By:
----------------------------------------
Name:
Title:
-19-
EXHIBIT A
PURCHASERS
[The names and addresses of Purchasers have been redacted]
- A-1-
EXHIBIT B
PLAN OF DISTRIBUTION
We are registering the shares of common stock on behalf of the
selling stockholders. The selling stockholders may offer and sell their shares
of common stock from time to time, in their discretion, in one or more
transactions at fixed prices, at prevailing market prices at the time of sale,
at prices related to the prevailing market prices, at varying prices determined
at the time of sale, or at negotiated prices. Such prices will be determined by
the selling stockholders or by agreement between a selling stockholder and its
underwriters, dealers, brokers or agents. The selling stockholders will act
independently of us in making decisions with respect to the timing, manner and
size of each sale hereunder. These sales may be effected at various times in one
or more of the following transactions, or in other kinds of transactions:
. transactions on the New York Stock Exchange or on any
national securities exchange or U.S. inter-dealer system of
a registered national securities association on which our
common stock may be listed or quoted at the time of sale;
. in the over-the-counter market;
. in private transactions and transactions otherwise than on
these exchanges or systems or in the over-the-counter
market;
. in connection with short sales of the shares;
. by pledge to secure or in payment of debt and other
obligations;
. through the writing of options, whether the options are
listed on an options exchange or otherwise;
. in connection with the writing of non-traded and
exchange-traded call options, in hedge transactions and in
settlement of other transactions in standardized or
over-the-counter options; or
. through a combination of any of the above transactions.
The selling stockholders and their successors, including their
transferees, pledgees or donees or their successors, may sell the common stock
directly to purchasers or through underwriters, broker-dealers or agents, who
may receive compensation in the form of discounts, concessions or commissions
from the selling stockholder or the purchasers in amounts to be negotiated.
These discounts, concessions or commissions as to any particular underwriter,
broker-dealer or agent may be in excess of those customary in the types of
transactions involved. Such brokers and dealers and any other participating
brokers or dealers may be deemed to be "underwriters" within the meaning of the
Securities Act of 1933, as amended (the "Securities Act"), in connection with
such sales. From time to time, one or more of the selling stockholders may
pledge, hypothecate or grant a security interest in some or all of the shares
owned by them, and the pledgees, secured parties or persons to whom such
securities have been hypothecated shall, upon foreclosure in the event of
default, be deemed to be selling stockholders hereunder. In addition, a selling
stockholder may, from time to time, sell short our common stock, and in such
instances, this prospectus may be delivered in connection with such short sales
and the shares offered hereby may be used to cover such short sales. In
addition, any securities covered by this prospectus which qualify for sale
pursuant to Rule 144 of the Securities Act may be sold under Rule 144 rather
than pursuant to this prospectus.
- B-1-
To the extent required under the Securities Act, the aggregate
amount of selling stockholders' shares being offered and the terms of the
offering, the names of any such agents, brokers, dealers or underwriters and any
applicable commission with respect to a particular offer will be set forth in an
accompanying prospectus supplement. Any underwriters, dealers, brokers, or
agents participating in the distribution of the shares may receive compensation
in the form of underwriting discounts, concessions, commissions or fees from a
selling stockholder and/or purchasers of selling stockholders' shares, for whom
they may act. In addition, sellers of selling stockholders' shares may be deemed
to be underwriters under the Securities Act and any profits on the sale of
selling stockholders' shares by them may be deemed to be discount commissions
under the Securities Act. Selling stockholders may have other business
relationships with the Company and its subsidiaries or affiliates in the
ordinary course of business.
From time to time one or more of the selling stockholders may
transfer, pledge, donate or assign selling stockholders' shares to lenders,
family members and others and each of such persons will be deemed to be a
selling stockholder for purposes of this prospectus. The number of selling
stockholders' shares beneficially owned by those selling stockholders who so
transfer, pledge, donate or assign selling stockholders' shares will decrease as
and when they take such actions. The plan of distribution for selling
stockholders' shares sold hereunder will otherwise remain unchanged, except that
the transferees, pledgees, donees or other successors will be selling
stockholders hereunder.
Including and without limiting the foregoing, in connection
with distributions of our common stock, a selling stockholder may enter into
hedging transactions with broker-dealers and the broker-dealers may engage in
short sales of our common stock in the course of hedging the positions they
assume with such selling stockholder. A selling stockholder may also enter into
option or other transactions with broker-dealers that involve the delivery of
our common stock to the broker-dealers, who may then resell or otherwise
transfer such common stock. A selling stockholder may also loan or pledge such
common stock to a broker-dealer and the broker-dealer may sell the common stock
so loaned or upon a default may sell or otherwise transfer the pledged common
stock.
We are bearing all costs relating to the registration of the
shares (other than the fees and expenses, if any, of counsel or other advisors
to the selling stockholders). Any commissions, discounts, concessions or fees
payable to underwriters, broker-dealers or agents in connection with any sale of
the shares will be borne by the selling stockholder selling such shares.
We entered into a registration rights agreement for the
benefit of the selling stockholders to register our common stock under
applicable federal and state securities laws. The registration rights agreement
provides for cross-indemnification of the selling stockholders and us and our
respective directors, officers and controlling persons against specific
liabilities in connection with the offer and sale of the common stock, including
liabilities under the Securities Act. We will pay substantially all of the
expenses incurred incident to the offering and sale of the common stock.
- B-2-
EXHIBIT C
FORM OF NOTICE OF EFFECTIVENESS
OF REGISTRATION STATEMENT
[Name and address of Transfer Agent]
----------------------------------
----------------------------------
----------------------------------
Attn: ____________
Re: [Company]
---------
Ladies and Gentlemen:
We are counsel to _______________, a ___________ corporation (the
"Company"), and have represented the Company in connection with that certain
Purchase Agreement (the "Purchase Agreement"), dated as of _________ __, 2002 by
and between the Company and the purchaser (the "Purchaser" and the "Holder")
named therein pursuant to which the Company issued to the Purchaser shares (the
"Common Shares") of its Common Stock, $___ par value (the "Common Stock").
Pursuant to the Purchase Agreement, the Company has also entered into a
Registration Rights Agreement with the Purchaser (the "Registration Rights
Agreement"), dated as of _________ __, 2002, pursuant to which the Company
agreed, among other things, to register the Registrable Securities (as defined
in the Registration Rights Agreement), including the Common Shares, under the
Securities Act of 1933, as amended (the "1933 Act"). In connection with the
Company's obligations under the Registration Rights Agreement, on _________ __,
2002, the Company filed a Registration Statement on Form S-3 (File No.
333-________) (the "Registration Statement") with the Securities and Exchange
Commission (the "SEC") relating to the resale of the Registrable Securities
which names the Holder as a selling stockholder thereunder.
In connection with the foregoing, we advise you that a member of the
SEC's staff has advised us by telephone that the SEC has entered an order
declaring the Registration Statement effective under the 1933 Act at [ENTER TIME
OF EFFECTIVENESS] on [ENTER DATE OF EFFECTIVENESS] and we have no knowledge,
after telephonic inquiry of a member of the SEC's staff, that any stop order
suspending its effectiveness has been issued or that any proceedings for that
purpose are pending before, or threatened by, the SEC and, accordingly, the
Registrable Securities are available for resale under the 1933 Act in the manner
specified in, and pursuant to the terms of the Registration Statement.
Very truly yours,
By:
cc: [PURCHASER]
