Exhibit 4.5
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (the "Agreement") is made as of the ___
day of ___ ______________, 2002 between ULTRALIFE BATTERIES, INC., a Delaware
corporation (the "Company") and ___________________ (the "Purchaser").
The Company and the Purchaser have entered into that certain Stock
Purchase Agreement (the "Stock Purchase Agreement") pursuant to which the
Purchaser purchased ____________ newly-issued shares of the Company's Common
Stock (the "Shares") at a purchase price of $3.00 per share and also pursuant to
which the Company agreed to register the Shares for the benefit of the
Purchaser. The Purchaser acknowledges that there are other purchasers of shares
of the Company's Common Stock or securities convertible into Common Stock who
will be entering into similar registration rights agreements with the Company,
all of whom, together with the Purchaser are collectively referred to as the
"Purchasers."
Capitalized terms not defined in this Agreement shall have the meanings
given them in the Stock Purchase Agreement.
In consideration of the covenants and conditions set forth in this
Agreement, the parties agree as follows:
1. REGISTRATION; COMPLIANCE WITH THE SECURITIES ACT; COVENANTS
1.1 Registration of Shares
1.1.1 Registration Statement; Expenses
The Company shall:
(a) as soon as practicable after the Closing Date, but in no event later
than June 30, 2002, prepare and file with the Securities and Exchange Commission
(the "Commission") a Registration Statement on Form S-3 (or, if the Company is
ineligible to use Form S-3, then on Form S-1) relating to the sale of the Shares
by the Purchasers from time to time on the Nasdaq National Market (or the
facilities of any national securities exchange on which the Company's Common
Stock is then traded) or in privately negotiated transactions (the "Registration
Statement");
(b) provide to the Purchasers any information required to permit the sale
of the Shares under Rule 144A of the Securities Act;
(c) subject to receipt of necessary information from the Purchasers, use
its reasonable best efforts to cause the Commission to declare the Registration
Statement effective as soon as practicable after the Registration Statement is
filed with the Commission;
(d) notify Purchasers promptly upon the Registration Statement, and any
post-effective amendment thereto, being declared effective by the Commission;
(e) prepare and file with the Commission such amendments and supplements
to the Registration Statement and the Prospectus (as defined in Section 1.3.1
below) and take such other action, if any, as may be necessary to keep the
Registration Statement effective until the earlier of (i) the date on which the
Shares may be resold by the Purchasers without registration and without regard
to any volume limitations by reason of Rule 144(k) under the Securities Act or
any other rule of similar effect or (ii) all of the Shares have been sold
pursuant to the Registration Statement or Rule 144 under the Securities Act or
any other rule of similar effect;
(f) promptly furnish to the Purchasers with respect to the Shares
registered under the Registration Statement such reasonable number of copies of
the Prospectus, including any supplements to or amendments of the Prospectus, in
order to facilitate the public sale or other disposition of all or any of the
Shares by the Purchasers;
(g) during the period when copies of the Prospectus are required to be
delivered under the Securities Act or the Exchange Act, will file all documents
required to be filed with the Commission pursuant to Section 13, 14 or 15 of the
Exchange Act within the time periods required by the Exchange Act and the rules
and regulations promulgated thereunder;
(h) file documents required of the Company for customary Blue Sky
clearance in all states requiring Blue Sky clearance; provided, however, that
the Company shall not be required to qualify to do business or consent to
service of process in any jurisdiction in which it is not now so qualified or
has not so consented;
(i) advise each Purchaser, promptly after it shall receive notice or
obtain knowledge of the issuance of any stop order by the Commission delaying or
suspending the effectiveness of the Registration Statement or of the initiation
of any proceeding for that purpose; and it will promptly use its best efforts to
prevent the issuance of any stop order or to obtain its withdrawal at the
earliest practicable moment if such stop order should be issued; and
(j) bear all expenses in connection with the procedures in paragraphs (a)
through (i) of this Section 1.1.1 and the registration of the Shares pursuant to
the Registration Statement.
1.2 Transfer of Shares After Registration
Purchaser agrees that the Purchaser will not effect any disposition of the
Shares or right to purchase the Shares that would constitute a sale within the
meaning of the Securities Act, except as contemplated in the Registration
Statement referred to in Section 1.1 or as otherwise permitted by law, and that
the Purchaser will promptly notify the Company of any changes in the information
set forth in the Registration Statement regarding the Purchaser or the
Purchaser's plan of distribution.
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1.3 Indemnification
For the purpose of this Section 1.3, the term "Registration Statement" shall
include any preliminary or final prospectus, exhibit, supplement or amendment
included in or relating to the Registration Statement referred to in Section
1.1.
1.3.1 Indemnification by the Company
The Company agrees to indemnify and hold harmless each of the Purchasers and
each person, if any, who controls any Purchaser within the meaning of the
Securities Act, against any losses, claims, damages, liabilities or expenses,
joint or several, to which such Purchasers or such controlling person may become
subject, under the Securities Act, the Exchange Act, or any other federal or
state statutory law or regulation, or at common law or otherwise (including in
settlement of any litigation, if such settlement is effected with the written
consent of the Company, which consent shall not be unreasonably withheld),
insofar as such losses, claims, damages, liabilities or expenses (or actions in
respect thereof as contemplated below) arise out of or are based upon any untrue
statement or alleged untrue statement of any material fact contained in the
Registration Statement, including the Prospectus, financial statements and
schedules, and all other documents filed as a part thereof, as amended at the
time of effectiveness of the Registration Statement, including any information
deemed to be a part thereof as of the time of effectiveness pursuant to
paragraph (b) of Rule 430A, or pursuant to Rule 434, of the Rules and
Regulations, or the Prospectus, in the form first filed with the Commission
pursuant to Rule 424(b) of the Regulations, or filed as part of the Registration
Statement at the time of effectiveness if no Rule 424(b) filing is required (the
"Prospectus"), or any amendment or supplement thereto, or arise out of or are
based upon the omission or alleged omission to state in any of them a material
fact required to be stated therein or necessary to make the statements in any of
them, in light of the circumstances under which they were made, not misleading,
or arise out of or are based in whole or in part on any inaccuracy in the
representations and warranties of the Company contained in this Agreement, or
any failure of the Company to perform its obligations under this Agreement or
under applicable law, and will reimburse each Purchaser and each such
controlling person for any legal and other expenses as such expenses are
reasonably incurred by such Purchaser or such controlling person in connection
with investigating, defending, settling, compromising or paying any such loss,
claim, damage, liability, expense 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 expense arises out of or is based upon (i) an untrue
statement or alleged untrue statement or omission or alleged omission made in
the Registration Statement, the Prospectus or any amendment or supplement of the
Registration Statement or Prospectus in reliance upon and in conformity with
written information furnished to the Company by or on behalf of the Purchaser
expressly for use in the Registration Statement or the Prospectus, or (ii) the
failure of such Purchaser to comply with the covenants and agreements contained
in the Stock Purchase Agreement or in Section 1.2 of this Agreement respecting
resale of the Shares, or (iii) the inaccuracy of any representations made by
such Purchaser in this Agreement or (iv) any untrue statement or omission of a
material fact required to make such statement not misleading in any Prospectus
that is corrected in any subsequent Prospectus that was delivered to the
Purchaser before the pertinent sale or sales by the Purchaser.
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1.3.2 Indemnification by the Purchaser
Each Purchaser will severally and not jointly indemnify and hold harmless the
Company, each of its directors, each of its officers who signed the Registration
Statement and each person, if any, who controls the Company within the meaning
of the Securities Act, against any losses, claims, damages, liabilities or
expenses to which the Company, each of its directors, each of its officers who
signed the Registration Statement or controlling person may become subject,
under the Securities Act, the Exchange Act, or any other federal or state
statutory law or regulation, or at common law or otherwise (including in
settlement of any litigation, if such settlement is effected with the written
consent of such Purchaser, which consent shall not be unreasonably withheld)
insofar as such losses, claims, damages, liabilities or expenses (or actions in
respect thereof as contemplated below) arise out of or are based upon (i) any
failure on the part of such Purchaser to comply with the covenants and
agreements contained in the Stock Purchase Agreement or Section 1.2 of this
Agreement respecting the sale of the Shares or (ii) the inaccuracy of any
representation made by such Purchaser in this Agreement or (iii) any untrue or
alleged untrue statement of any material fact contained in the Registration
Statement, the Prospectus, or any amendment or supplement to the Registration
Statement or Prospectus, or arise out of or are based upon the omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, in each case to the
extent, but only to the extent, that such untrue statement or alleged untrue
statement or omission or alleged omission was made in the Registration
Statement, the Prospectus, or any amendment or supplement thereto, in reliance
upon and in conformity with written information furnished to the Company by or
on behalf of such Purchaser expressly for use therein; provided, however, that
the Purchaser shall not be liable for any such untrue or alleged untrue
statement or omission or alleged omission of which the Purchaser has delivered
to the Company in writing a correction before the occurrence of the transaction
from which such loss was incurred, and the Purchaser will reimburse the Company,
each of its directors, each of its officers who signed the Registration
Statement or controlling person for any legal and other expense reasonably
incurred by the Company, each of its directors, each of its officers who signed
the Registration Statement or controlling person in connection with
investigating, defending, settling, compromising or paying any such loss, claim,
damage, liability, expense or action.
1.3.3 Indemnification Procedure
(a) Promptly after receipt by an indemnified party under this Section 1.3
of notice of the threat or commencement of any action, such indemnified party
will, if a claim in respect thereof is to be made against an indemnifying party
under this Section 1.3, promptly notify the indemnifying party in writing of the
claim; but the omission so to notify the indemnifying party will not relieve it
from any liability which it may have to any indemnified party for contribution
or otherwise under the indemnity agreement contained in this Section 1.3 or to
the extent it is not prejudiced as a result of such failure.
(b) In case any such action is brought against any indemnified party and
such indemnified party seeks or intends to seek indemnity from an indemnifying
party, the indemnifying party will be entitled to participate in, and, to the
extent that it may wish, jointly with all other indemnifying parties similarly
notified, to assume the defense thereof with counsel reasonably satisfactory to
such indemnified party; provided, however, if the defendants in any such action
include both the
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indemnified party and the indemnifying party and the indemnified party shall
have reasonably concluded that there may be a conflict between the positions of
the indemnifying party and the indemnified party in conducting the defense of
any such action or that there may be legal defenses available to it or other
indemnified parties that are different from or additional to those available to
the indemnifying party, the indemnified party or parties shall have the right to
select separate counsel to assume such legal defenses and to otherwise
participate in the defense of such action on behalf of such indemnified party or
parties. Upon receipt of notice from the indemnifying party to such indemnified
party of its election so to assume the defense of such action and approval by
the indemnified party of counsel, the indemnifying party will not be liable to
such indemnified party under this Section 7.3 for any legal or other expenses
subsequently incurred by such indemnified party in connection with the defense
thereof unless:
(i) the indemnified party shall have employed such counsel in
connection with the assumption of legal defenses in accordance with the proviso
to the preceding sentence (it being understood, however, that the indemnifying
party shall not be liable for the expenses of more than one separate counsel,
approved by such indemnifying party representing all of the indemnified parties
who are parties to such action) or
(ii) the indemnifying party shall not have employed counsel
reasonably satisfactory to the indemnified party to represent the indemnified
party within a reasonable time after notice of commencement of action, in each
of which cases the reasonable fees and expenses of counsel shall be at the
expense of the indemnifying party. Notwithstanding the provisions of this
Section 1.3, the Purchaser shall not be liable for any indemnification
obligation under this Agreement in excess of the amount of net proceeds received
by the Purchaser from the sale of the Shares.
1.3.4 Contribution
If the indemnification provided for in this Section 1.3 is required by its terms
but is for any reason held to be unavailable to or otherwise insufficient to
hold harmless an indemnified party under this Section 1.3 in respect to any
losses, claims, damages, liabilities or expenses referred to in this Agreement,
then each applicable indemnifying party shall contribute to the amount paid or
payable by such indemnified party as a result of any losses, claims, damages,
liabilities or expenses referred to in this Agreement
(a) in such proportion as is appropriate to reflect the relative benefits
received by the Company and the Purchaser from the placement of Common Stock or
(b) if the allocation provided by clause (a) above is not permitted by
applicable law, in such proportion as is appropriate to reflect not only the
relative benefits referred to in clause (a) above but the relative fault of the
Company and the Purchaser in connection with the statements or omissions or
inaccuracies in the representations and warranties in this Agreement that
resulted in such losses, claims, damages, liabilities or expenses, as well as
any other relevant equitable considerations.
The respective relative benefits received by the Company on the one hand and
each Purchaser on the other shall be deemed to be in the same proportion as the
amount paid by such Purchaser to the Company pursuant to this Agreement for the
Shares purchased by such Purchaser that were
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sold pursuant to the Registration Statement bears to the difference (the
"Difference") between the amount such Purchaser paid for the Shares that were
sold pursuant to the Registration Statement and the amount received by such
Purchaser from such sale. The relative fault of the Company and each Purchaser
shall be determined by reference to, among other things, whether the untrue or
alleged statement of a material fact or the omission or alleged omission to
state a material fact or the inaccurate or the alleged inaccurate representation
or warranty relates to information supplied by the Company or by such Purchaser
and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. The amount paid or
payable by a party as a result of the losses, claims, damages, liabilities and
expenses referred to above shall be deemed to include, subject to the
limitations set forth in Section 1.3.3, any legal or other fees or expenses
reasonably incurred by such party in connection with investigating or defending
any action or claim. The provisions set forth in Section 1.3.3 with respect to
the notice of the threat or commencement of any threat or action shall apply if
a claim for contribution is to be made under this Section 1.3.4; provided,
however, that no additional notice shall be required with respect to any threat
or action for which notice has been given under Section 1.3 for purposes of
indemnification. The Company and each Purchaser agree that it would not be just
and equitable if contribution pursuant to this Section 1.3 were determined
solely by pro rata allocation (even if the Purchaser were treated as one entity
for such purpose) or by any other method of allocation which does not take
account of the equitable considerations referred to in this paragraph.
Notwithstanding the provisions of this Section 1.3, no Purchaser shall be
required to contribute any amount in excess of the amount by which the
Difference exceeds the amount of any damages that such Purchaser has otherwise
been required to pay by reason of such untrue or alleged untrue statement or
omission or alleged omission. 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 Purchasers' obligations to contribute pursuant to this
Section 1.3 are several and not joint.
1.4 Termination of Conditions and Obligations
The restrictions imposed by the Stock Purchase Agreement or this Agreement upon
the transferability of the Shares shall cease and terminate as to any particular
number of the Shares upon the passage of two years from the Closing Date or at
such time as an opinion of counsel satisfactory in form and substance to the
Company shall have been rendered to the effect that such conditions are not
necessary in order to comply with the Securities Act.
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1.5 Information Available
From the date of this Agreement through the date the Registration Statement
covering the resale of Shares owned by any Purchaser is no longer effective, the
Company will furnish to such Purchaser:
(a) as soon as practicable after available (but in the case of the
Company's Annual Report to Shareholders, within 90 days after the end of each
fiscal year of the Company), one copy of
(i) its Annual Report to Shareholders (which Annual Report shall
contain financial statements audited in accordance with generally accepted
accounting principles by a national firm of certified public accountants);
(ii) if not included in substance in the Annual Report to
Stockholders, its Annual Report on Form 10-K;
(iii) if not included in substance in its Quarterly Reports to
Stockholders, its quarterly reports on Form 10-Q; and
(iv) a full copy of the particular Registration Statement covering
the Shares (the foregoing, in each case, excluding exhibits);
(b) upon the request of the Purchaser, a reasonable number of copies of
the Prospectus to supply to any other party requiring the Prospectus.
1.6 Rule 144 Information
Until the earlier of (i) the date on which the Shares may be resold by the
Purchasers without registration and without regard to any volume limitations by
reason of Rule 144(k) under the Securities Act or any other rule of similar
effect or (ii) all of the Shares have been sold pursuant to the Registration
Statement or Rule 144 under the Securities Act or any other rule of similar
effect, the Company shall file all reports required to be filed by it under the
Securities Act, the Rules and Regulations and the Exchange Act and shall take
such further action to the extent required to enable the Purchasers to sell the
Shares pursuant to Rule 144 under the Securities Act (as such rule may be
amended from time to time).
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2. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE PURCHASER
2.1 Securities Law Representations and Warranties
The Purchaser represents, warrants and covenants to the Company as
follows:
(a) The Purchaser has acquired the Shares for the Purchaser's own account
for investment only, and has no present intention of distributing any of the
Shares, nor any arrangement or understanding with any other persons regarding
the distribution of the Shares within the meaning of Section 2(11) of the
Securities Act, other than as contemplated in Section 1 of this Agreement.
(b) The Purchaser will not, directly or indirectly, offer, sell, pledge,
transfer or otherwise dispose of (or solicit any offers to buy, purchase or
otherwise acquire or take a pledge of) any of the Shares except in compliance
with the Securities Act and rules and regulations promulgated thereunder the
"Rules and Regulations").
(c) The Purchaser has completed or caused to be completed the Registration
Statement Questionnaire, attached to this Agreement as Appendix I, for use in
preparation of the Registration Statement, and the answers to the Questionnaire
are true and correct as of the date of this Agreement and will be true and
correct as of the effective date of the Registration Statement; provided,
however, that the Purchaser shall be entitled to update such information by
providing notice thereof to the Company before the effective date of the
Registration Statement.
2.2 Resales of Shares
(a) The Purchaser hereby covenants with the Company not to make any
sale of the Shares without satisfying the requirements of the Securities Act and
the Rules and Regulations, including, in the event of any resale under the
Registration Statement, the prospectus delivery requirements under the
Securities Act, and the Purchaser acknowledges and agrees that such Shares are
not transferable on the books of the Company pursuant to a resale under the
Registration statement unless the certificate submitted to the transfer agent
evidencing the Shares is accompanied by a separate certificate
(i) in the form of Appendix II to this Agreement;
(ii) executed by the Purchaser individually, or if the
Purchaser is an entity, by an officer of, or other authorized person designated
by, the Purchaser; and
(iii) to the effect that (a) the Shares have been sold in
accordance with the Registration Statement and (b) the requirement of delivering
a current prospectus has been satisfied.
(b) The Purchaser acknowledges that there may occasionally be times
when the Company determines, in good faith following consultation with its Board
of Directors or a committee thereof, the use of the Prospectus forming a part of
the Registration Statement should be suspended until such time as an amendment
or supplement to the Registration Statement or the Prospectus has been filed by
the Company with the Commission and any such amendment to the Registration
Statement is declared effective by the Commission, or until such time as the
Company
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has filed an appropriate report with the Commission pursuant to the Exchange
Act. The Purchaser hereby covenants that the Purchaser will not sell any Shares
pursuant to the Prospectus during the period commencing at the time at which the
Company gives the Purchaser written notice of the suspension of the use of the
Prospectus and ending at the time the Company gives the Purchaser written notice
that the Purchaser may thereafter effect sales pursuant to the Prospectus. The
Company may, upon written notice to the Purchaser, suspend the use of the
Prospectus for up to thirty (30) days in any 365-day period based on the
reasonable determination of the Company's Board of Directors that there is a
significant business purpose for such determination, such as pending corporate
developments, public filings with the Commission or similar events. The Company
shall in no event be required to disclose the business purpose for which it has
suspended the use of the Prospectus if the Company determines in its good faith
judgment that the business purpose should remain confidential. In addition, the
Company shall notify each Purchaser (i) of any request by the Commission for an
amendment or any supplement to such Registration Statement or the Prospectus, or
any other information request by any other governmental agency directly relating
to the sale of Shares, and (ii) of the issuance by the Commission of any stop
order suspending the effectiveness of the Registration Statement or of any order
preventing or suspending the use of the Prospectus or the initiation or threat
of any proceeding for that purpose.
(c) The Purchaser further covenants to notify the Company promptly
of the sale of any of the Shares, other than sales pursuant to the Registration
Statement or sales upon termination of the transfer restrictions pursuant to
Section 1.4 of this Agreement.
3. MISCELLANEOUS
3.1 Counterparts
This Agreement may be executed in counterparts, each of which will be
deemed an original but all of which will be deemed one instrument.
3.2 Survival of Representations and Warranties
All representations and warranties made in this Agreement or any other
instrument or document delivered in connection herewith shall survive the
execution and delivery hereof.
3.3 Prior Agreements
This Agreement constitutes the entire agreement between the parties and
supersedes any prior or contemporaneous understandings or agreements concerning
the subject matter hereof.
3.4 Severability
The invalidity or unenforceability of any provision hereof shall in no way
affect the validity or enforceability of any other provision.
3.5 Governing Law
This Agreement shall be governed by, and construed in accordance with, the
laws of the State of New York. The rights of the parties under this Agreement
are unique and, accordingly,
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the parties shall, in addition to such other remedies as may be available to any
of them at law or in equity, have the right to enforce their rights hereunder by
actions of specific performance to the extend permitted by law.
3.6 Headings
Section and subsection headings in this Agreement are included herein for
convenience of reference only and shall not constitute a part of the Agreement
for any other purpose.
3.7 Amendments and Waivers
This Agreement may not be amended, supplemented or otherwise modified
except by an instrument in writing signed by both parties that specifically
refers to this Agreement. Either party hereto may, only by an instrument in
writing, waive compliance by the other party hereto with any term or provision
of this Agreement on the part of such other party to be performed or complied
with. The waiver by a party hereto of a breach of any term or provision of this
Agreement shall not be construed as a waiver of any subsequent breach. Any
amendment or waiver effected in accordance with this Section 2.7 shall be
binding upon each party and its permitted assigns.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
ULTRALIFE BATTERIES, INC.
By:
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Name:
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Title:
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PURCHASER:
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Print Name:
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Signature
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APPENDIX I
ULTRALIFE BATTERIES, INC.
REGISTRATION STATEMENT QUESTIONNAIRE
In connection with the preparation of the Registration Statement, please provide
us with the following information:
1. Pursuant to the "Selling Stockholder" section of the Registration
Statement, please state your or your organization's name exactly as it
should appear in the Registration Statement:
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2. Please provide the number of shares that you or your organization will own
immediately after Closing, including those Shares purchased by you or your
organization pursuant to this Purchase Agreement and those shares
purchased by you or your organization through other transactions:
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3. Have you or your organization had any position, office or other material
relationship within the past three years with the Company or its
affiliates?
_____ Yes _____ No
If yes, please indicate the nature of any such relationships below:
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APPENDIX II
PURCHASER'S CERTIFICATE OF SUBSEQUENT SALE
The undersigned, an officer of, or other person duly authorized by
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[fill in official name of individual or institution]
hereby certifies that he/she/it is the Purchaser of the shares evidenced by the
attached certificate, and as such, sold such shares on ________________, 200__
in accordance with Registration Statement number 333-________________, and
complied with the requirement of delivering a current prospectus in connection
with such sale.
Print or Type:
Name of Purchaser (Individual or Institution):
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Name of Individual representing Purchaser (if an Institution)
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Title of Individual representing Purchaser (if an Institution):
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Signature:
Individual Purchaser or Individual representing Purchaser:
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