FORM OF REGISTRATION RIGHTS AGREEMENT
Exhibit 10.5
FORM OF
This
Registration Rights Agreement (this “Agreement”) is made and entered
into effective as of ______ ___, 2017, among Sincerity Applied
Materials Holdings Corp., a Nevada corporation (the
“Company”), the
persons who have purchased the Units and have executed omnibus or
counterpart signature page(s) hereto (each, a “Purchaser” and collectively, the
“Purchasers”),
and the persons or entities identified on Schedule 1 hereto holding
Registrable Pre-Acquisition Shares. Capitalized terms used herein
shall have the meanings ascribed to them in Section 1 below or in the
Subscription Agreement.
RECITALS:
WHEREAS, the Company has offered and
sold in compliance with Rule 506 of Regulation D promulgated under
the Securities Act to accredited investors in a private placement
offering (the “Offering”) units of securities of
the Company (the “Units”), each Unit consisting of
(i) one 12% Senior Secured Convertible Note with a term of 13
months in the face (principal) amount of $10,000 (the
“Note”) and (ii)
one five-year warrant to purchase the number of shares of Common
Stock issuable upon exercise thereof as set forth in the Warrant
(the “Warrant”)
pursuant to that certain Subscription Agreement entered into by and
between the Company and each of the subscribers for the Units set
forth on the signature pages affixed thereto (the
“Subscription
Agreement”); and
WHEREAS, the Company has agreed to enter
into a registration rights agreement with each of the Purchasers in the Offering who purchased the
Units and with certain other persons; and
WHEREAS, in conjunction with the closing
of the Offering, the Company has completed an acquisition (the
“Acquisition”)
with Sincerity Australia Pty Ltd., an Australia corporation
(“Sincerity
Australia”) and the sole shareholder/member of
Sincerity Australia pursuant to which Sincerity Australia will
become a wholly owned subsidiary of the Company;
NOW, THEREFORE, in consideration of the
mutual promises, representations, warranties, covenants, and
conditions set forth herein, the parties mutually agree as
follows:
1. Certain
Definitions. As used in this Agreement, the
following terms shall have the following respective
meanings:
“Anti-Dilution
Shares” means shares of Common Stock, if any, issued
pursuant to the anti-dilution provisions contained in the Notes and
the Warrants.
“Approved Market” means
the OTC Markets Group, the Nasdaq Stock Market, the New York Stock
Exchange or the NYSE MKT.
“Blackout Period” means,
with respect to a registration, a period during which the Company,
in the good faith judgment of its board of directors, determines
(because of the existence of, or in anticipation of, any
acquisition, financing activity, receipt of clinical trial results
or other transaction involving the Company, or the unavailability
for reasons beyond the Company’s control of any required
financial statements, disclosure of information which is in its
best interest not to publicly disclose, or any other event or
condition of similar significance to the Company) that the
registration and distribution of the Registrable Securities to be
covered by such registration statement, if any, or the filing of an
amendment to such registration statement in the circumstances
described in Section 4(g), would be seriously
detrimental to the Company and its stockholders, in each case
commencing on the day the Company notifies the Holders that they
are required, because of the determination described above, to
suspend offers and sales of Registrable Securities and ending on
the earlier of (1) the date upon which the material non-public
information resulting in the Blackout Period is disclosed to the
public or ceases to be material and (2) such time as the Company
notifies the selling Holders that sales pursuant to such
Registration Statement or a new or amended Registration Statement
may resume; provided, however, that no Blackout Period shall extend
for a period of more than thirty (30) consecutive Trading Days
(except for a Blackout Period arising from the filing of a
post-effective amendment to the Registration Statement to update
the prospectus therein to include the information contained in the
Company’s Annual Report on Form 10-K, which Blackout Period
may extend for the amount of time reasonably required to respond to
comments of the staff of the Commission (the “Staff”) on such amendment) and
aggregate Blackout Periods shall not exceed sixty (60) Trading Days
in any twelve (12) month period.
“Business Day” means any
day of the year, other than a Saturday, Sunday, or other day on
which banks in the State of New York are required or authorized to
close.
“Commission” means the U.
S. Securities and Exchange Commission or any other federal agency
at the time administering the Securities Act.
“Common Stock” means the
common stock, par value $0.001 per share, of the Company and any
and all shares of capital stock or other equity securities of: (i)
the Company which are added to or exchanged or substituted for the
Common Stock by reason of the declaration of any stock dividend or
stock split, the issuance of any distribution or the
reclassification, readjustment, recapitalization or other such
modification of the capital structure of the Company; and (ii) any
other corporation, now or hereafter organized under the laws of any
state or other governmental authority, with which the Company is
merged, which results from any consolidation or reorganization to
which the Company is a party, or to which is sold all or
substantially all of the shares or assets of the Company, if
immediately after such merger, consolidation, reorganization or
sale, the Company or the stockholders of the Company own equity
securities having in the aggregate more than 50% of the total
voting power of such other corporation.
“Conversion Shares” means
the shares of Common Stock issuable to the Purchasers pursuant to
the conversion of the Notes and any shares of Common Stock issued
or issuable with respect to such shares upon any stock split,
dividend or other distribution, recapitalization or similar event
with respect to the foregoing or pursuant to the anti-dilution
provision applicable to the Notes.
“Effective Date” means the
date of the closing of the Offering.
“Exchange Act” means the
Securities Exchange Act of 1934, as amended, and the rules and
regulations of the Commission promulgated thereunder.
“Family Member” means (a)
with respect to any individual, such individual’s spouse, any
descendants (whether natural or adopted), any trust all of the
beneficial interests of which are owned by any of such individuals
or by any of such individuals together with any organization
described in Section 501(c)(3) of the Internal Revenue Code of
1986, as amended, the estate of any such individual, and any
corporation, association, partnership or limited liability company
all of the equity interests of which are owned by those above
described individuals, trusts or organizations and (b) with respect
to any trust, the owners of the beneficial interests of such
trust.
“Holder” means (i) each
Purchaser or any of such Purchaser’s respective successors
and Permitted Assignees who acquire rights in accordance with this
Agreement with respect to any Registrable Securities directly or
indirectly from a Purchaser or from any Permitted Assignee; and
(ii) each Pre-Acquisition Stockholder, or its respective successors
and Permitted Assignees who acquire rights in accordance with this
Agreement with respect to any Registrable Securities directly or
indirectly from such holder or from any Permitted Assignee
thereof.
“Majority
Holders” means, at any time, Holders of a majority of
the Registrable Securities then outstanding.
“Note” shall have the
meaning set forth in the Recitals.
“Permitted Assignee” means
(a) with respect to a partnership, its partners or former partners
in accordance with their partnership interests, (b) with respect to
a corporation, its stockholders in accordance with their interest
in the corporation, (c) with respect to a limited liability
company, its members or former members in accordance with their
interest in the limited liability company, (d) with respect to an
individual party, any Family Member of such party, (e) an entity or
trust that is controlled by, controls, or is under common control
with a transferor, or (f) a party to this Agreement.
The
terms “register,”
“registered,” and
“registration” refer to a
registration effected by preparing and filing a registration
statement in compliance with the Securities Act, and the
declaration or ordering of the effectiveness of such registration
statement.
“Pre-Acquisition
Stockholder” means a person who was a stockholder of
the Company immediately prior to the Acquisition.
“Registrable Pre-Acquisition
Shares” means the shares of Common Stock held by a
Pre-Acquisition Stockholder which were acquired by the
Pre-Acquisition Stockholder prior to the Acquisition and which
represented 10% or more of the Company’s outstanding Common
Stock immediately prior to the Acquisition.
“Registrable
Securities” means (a) the Conversion Shares and
Warrant Shares and (b) the Registrable Pre-Acquisition Shares; but,
in each case, excluding any otherwise Registrable Securities that
(i) have been sold or otherwise transferred other than to a
Permitted Assignee, or (ii) may be sold at the time under the
Securities Act without restriction, including manner of sale,
current information requirements or volume limitations either
pursuant to Rule 144 of the Securities Act or otherwise during any
ninety (90) day period.
“Registration Default
Period” means the period during which any Registration
Event occurs and is continuing.
“Registration Effectiveness
Date” means the date that is one hundred and twenty
(120) calendar days after the Closing Date of the
Offering
“Registration Event” means
the occurrence of any of the following events:
(a) the Company fails
to file with the Commission the Registration Statement on or before
the Registration Filing Date;
(b) the Registration
Statement is not declared effective by the Commission on or before
the Registration Effectiveness Date;
(c) after the SEC
Effective Date, the Registration Statement ceases for any reason to
remain continuously effective or the Holders are otherwise not
permitted to utilize the prospectus therein to resell the
Registrable Securities for a period of more than fifteen (15)
consecutive Trading Days, excluding Blackout Periods permitted and
excused herein;
(d) the Registrable
Securities, if issued and outstanding, are not listed or included
for quotation on an Approved Market, or trading of the Common Stock
is suspended or halted on the Approved Market, which at the time
constitutes the principal markets for the Common Stock, for more
than three (3) full, consecutive Trading Days; provided, however, a
Registration Event shall not be deemed to occur if all or
substantially all trading in equity securities (including the
Common Stock) is suspended or halted on the Approved Market for any
length of time.; or
(e) after the SEC
Effective Date, the Company fails to file with the Commission when
due (after giving effect to any extension of a due date for filing
pursuant to Rule 12b-25 under the Exchange Act) an Annual Report on
Form 10-K or a Quarterly Report on Form 10-Q.
“Registration Filing Date”
means the date that is sixty (60) calendar days after the Closing
Date of the Offering
“Registration Statement”
means the registration statement that the Company is required to
file pursuant to Section 3(a) of this Agreement to
register the Registrable Securities.
“Restricted Holders” means
all officers and directors of the Company and certain stockholders
of the Company who have entered into lock-up agreements with the
Company upon the closing of the Acquisition, pursuant to which they
agree to certain restrictions on the sale or disposition (including
pledge) of the Common Stock held by (or issuable to)
them.
“Rule 144” means Rule 144
promulgated by the Commission under the Securities Act, as such
rule may be amended or supplemented from time to time, or any
similar successor rule that may be promulgated by the
Commission.
“Rule 145” means Rule 145
promulgated by the Commission under the Securities Act, as such
rule may be amended or supplemented from time to time, or any
similar successor rule that may be promulgated by the
Commission.
“Rule 415” means Rule 415
promulgated by the Commission under the Securities Act, as such
rule may be amended or supplemented from time to time, or any
similar successor rule that may be promulgated by the
Commission.
“Securities Act” means the
Securities Act of 1933, as amended, or any similar federal statute
promulgated in replacement thereof, and the rules and regulations
of the Commission thereunder, all as the same shall be in effect at
the time.
“SEC Effective Date” means
the date the Registration Statement is declared effective by the
Commission.
“Trading Day” means any
day on which such national securities exchange, the OTC Markets
Group or such other securities market or quotation system, which at
the time constitutes the principal securities market for the Common
Stock, is open for general trading of securities.
“Warrant
Shares” means the shares of Common Stock issuable to
the Purchasers pursuant to the exercise of the Warrants and any
shares of Common Stock issued or issuable with respect to such
shares upon any stock split, dividend or other distribution,
recapitalization or similar even with respect to the foregoing or
pursuant to the anti-dilution provision applicable to the
Warrants.
“Warrants” shall have the
meaning set forth in the Recitals.
2. Term. This Agreement
shall terminate with respect to each Holder on the earlier of: (i)
the date that is two (2) years from the SEC Effective Date and (ii)
the date on which all Registrable Securities held by such Holder
have been transferred other than to a Permitted Assignee.
Notwithstanding the foregoing, Section 3(b), Section 6, Section 8, Section 9 and Section 11 shall survive the
termination of this Agreement.
(a) Registration on Form
S-1. The Company shall file with the Commission a
Registration Statement on Form S-1, or any other form for which the
Company then qualifies or which counsel for the Company shall deem
appropriate and which form shall be available for the resale by the
Holders of all of the Registrable Securities, and the Company shall
(i) use its commercially reasonable efforts to make the initial
filing of the Registration Statement no later than the Registration
Filing Date, (ii) use its commercially reasonable efforts to cause
such Registration Statement to be declared effective no later than
the Registration Effectiveness Date and (iii) use its commercially
reasonable efforts to keep such Registration Statement effective
for a period of two (2) years after the SEC Effective Date or for
such shorter period ending on the date on which all Registrable
Securities have been transferred other than to a Permitted Assignee
(the “Effectiveness Period”);
provided,
however,
that the Company shall not be obligated to effect any such
registration, qualification or compliance pursuant to this Section,
or keep such registration effective pursuant to the terms
hereunder, in any particular jurisdiction in which the Company
would be required to qualify to do business as a foreign
corporation or as a dealer in securities under the securities laws
of such jurisdiction or to execute a general consent to service of
process in effecting such registration, qualification or
compliance, in each case where it has not already done so; and
provided further, the Company shall be entitled to suspend the
effectiveness of the Registration Statement at any time prior to
the expiration of the Effectiveness Period during a Blackout
Period. Notwithstanding the foregoing, in the event that the Staff
should limit the number of Registrable Securities that may be sold
pursuant to the Registration Statement, the Company may remove from
the Registration Statement such number of Registrable Securities as
specified by the Commission on behalf of all of the holders of
Registrable Securities first from the shares of Common
Stock issuable upon exercise of the Placement Agent Warrants, on a
pro-rata basis among the holders thereof (and on an as-exercised
basis with respect to any Placement Agent Warrants not then
exercised), second,
from the other Registrable Securities, on a pro rata basis among
the holders thereof (such Registrable Securities, the
“Reduction
Securities”). In such event, the Company shall give
the Purchasers prompt notice of the number of Registrable
Securities excluded therefrom. Holders of Reduction Securities
shall have piggyback registration rights with regard to such
Reduction Securities. No liquidated damages shall accrue or be
payable to any holder pursuant to Section 3(a) with respect to any
Reduction Securities.
If,
after the SEC Effective Date and until the fifth (5th) anniversary
thereof, the Company shall determine to register for sale for cash
any of its Common Stock, for its own account or for the account of
others (other than the Holders), other than (i) a registration
relating solely to employee benefit plans or securities issued or
issuable to employees, consultants (to the extent the securities
owned or to be owned by such consultants could be registered on
Form S-8 (or its then equivalent form) or any of their Family
Members (including a registration on Form S-8 (or its then
equivalent form)), (ii) a registration relating solely to a
Securities Act Rule 145 transaction or a registration on Form S-4
(or its then equivalent form) in connection with a merger,
acquisition, divestiture, reorganization or similar event, or (iii)
a transaction relating solely to the sale of debt or convertible
debt instruments, then the Company shall promptly give to each
holder of Reduction Securities written notice thereof (the
“Registration Rights
Notice”) (and in no event shall such notice be given
less than twenty (20) calendar days prior to the filing of such
registration statement), and shall, subject to the paragraph
immediately below, include as a piggyback registration, all of the
Reduction Securities specified in a written request delivered by
the holder thereof within ten (10) calendar days after delivery to
the holder of such written notice from the Company. However, the
Company may, without the consent of such holders, withdraw such
registration statement prior to its becoming effective if the
Company or such other selling stockholders have elected to abandon
the proposal to register the securities proposed to be registered
thereby. The right contained in this paragraph may be exercised by
each holder of Reduction Securities only with respect to two (2)
qualifying registrations.
If a
Piggyback Registration is for a registered public offering that is
to be made by an underwriting, the Company shall so advise the
holders of Reduction Securities as part of the Registration Rights
Notice. In that event, the right of any holder to piggyback
registration shall be conditioned upon such holder’s
participation in such underwriting and the inclusion of such
holder’s Reduction Securities in the underwriting to the
extent provided herein. All holders proposing to sell any of their
Reduction Securities through such underwriting shall (together with
the Company and any other stockholders of the Company selling their
securities through such underwriting) enter into an underwriting
agreement in customary form with the underwriter selected for such
underwriting by the Company or such other selling stockholders, as
applicable. Notwithstanding any other provision of this
Section
3(a), if the underwriter or the
Company determines that marketing factors require a limitation on
the number of shares of Common Stock or the amount of other
securities to be underwritten, the underwriter may exclude some or
all Reduction Securities from such registration and underwriting.
The Company shall so advise all holders (except those holders who
failed to timely elect to include their Reduction Securities
through such underwriting or have indicated to the Company their
decision not to do so), and indicate to each such holder the number
of shares of Reduction Securities that may be included in the
registration and underwriting, if any. The number of shares of
Reduction Securities to be included in such registration and
underwriting shall be allocated among such holders as
follows:
(i) If the piggyback
registration was initiated by the Company, the number of shares
that may be included in the registration and underwriting shall be
allocated first to the Company and then, subject to obligations and
commitments existing as of the date hereof, to all persons
exercising piggyback registration rights (including the holders)
who have requested to sell in the registration on a pro rata basis
according to the number of shares requested to be included therein;
and
(ii) If
the piggyback registration was initiated by the exercise of demand
registration rights by a stockholder or stockholders of the
Company, then the number of shares that may be included in the
registration and underwriting shall be allocated first to such
selling stockholders who exercised such demand to the extent of
their demand registration rights, and then, subject to obligations
and commitments existing as of the date hereof, to the Company and
then, subject to obligations and commitments existing as of the
date hereof, to all persons exercising piggyback registration
rights (including the Holders) who have requested to sell in the
registration on a pro rata basis according to the number of shares
requested to be included therein.
No
Reduction Securities excluded from the underwriting by reason of
the underwriter’s marketing limitation shall be included in
such registration. If any holder disapproves of the terms of any
such underwriting, such holder may elect to withdraw such
holder’s Reduction Securities therefrom by delivering a
written notice to the Company and the underwriter. The Reduction
Securities so withdrawn from such underwriting shall also be
withdrawn from such registration; provided, however, that, if by the
withdrawal of such Reduction Securities, a greater number of
Reduction Securities held by other holders may be included in such
registration (up to the maximum of any limitation imposed by the
underwriters), then the Company shall offer to all holders who have
included Reduction Securities in the registration the right to
include additional Reduction Securities pursuant to the terms and
limitations set forth herein in the same proportion used above in
determining the underwriter limitation.
(f) Liquidated
Damages. If a Registration Event occurs, then the
Company will make payments to each Holder of Registrable
Securities, as liquidated damages to such Holder by reason of the
Registration Event, a cash sum calculated at a rate of twelve
percent (12%) per annum of: (i) the aggregate purchase price paid
by such Holder pursuant to the Subscription Agreement, or (ii) to a
Holder of Registrable Pre-Acquisition Shares, the product of $0.30
(as adjusted for stock splits, stock dividends, combinations,
recapitalizations or similar events) multiplied by the number of
Registrable Pre-Acquisition Shares held by such Holder, but in each
case of (i)-(ii), only with respect to such Holder’s
Registrable Securities that are affected by such Registration Event
and only for the period during which such Registration Event
continues to affect such Registrable Securities. Notwithstanding
the foregoing, the maximum amount of liquidated damages that may be
paid by the Company pursuant to this Section 3(b) shall be an amount equal to
eight percent (8%) of the applicable foregoing amounts described in
clauses (i), (ii) and (iii) in the preceding sentence with respect
to such Holder’s Registrable Securities that are affected by
all Registration Events in the aggregate. Each payment of
liquidated damages pursuant to this Section 3(b) shall be due and payable in
arrears within five (5) days after the end of each full 30-day
period of the Registration Default Period until the termination of
the Registration Default Period and within five (5) days after such
termination. The Registration Default Period shall terminate upon
the earlier of such time as the Registrable Securities that are
affected by the Registration Event cease to be Registrable
Securities or (i) the filing of the Registration Statement in the
case of clause (a) of the definition of Registration Event, (ii)
the SEC Effective Date in the case of clause (b) of the definition
of Registration Event, (iii) the ability of the Holders to effect
sales pursuant to the Registration Statement in the case of clause
(c) of the definition of Registration Event, and (iv) the listing
or inclusion and/or trading of the Common Stock on an Approved
Market, as the case may be, in the case of clause (d) of the
definition of Registration Event. The amounts payable as liquidated
damages pursuant to this Section 3(b) shall be payable in lawful
money of the United States. Notwithstanding the foregoing, the
Company will not be liable for the payment of liquidated damages
described in this Section 3(b) for any delay in
registration of Registrable Securities that would otherwise be
includable in the Registration Statement pursuant to Rule 415
solely as a result of a comment received from the Staff requiring a
limit on the number of Registrable Securities included in such
Registration Statement in order for such Registration Statement to
be able to avail itself of Rule 415, or, with respect to a Holder,
if such Holder fails to provide to the Company information
concerning the Holder and manner of distribution of the
Holder’s Registrable Securities that is required by SEC Rules
to be disclosed in a registration statement utilized in connection
with the registration of the Registrable Securities.
(g) Other
Limitations. Notwithstanding the provisions of
Section
3(b) above, if (i) the
Commission does not declare the Registration Statement effective on
or before the Registration Effectiveness Date, or (ii) the
Commission allows the Registration Statement to be declared
effective at any time before or after the Registration
Effectiveness Date, subject to the withdrawal of certain
Registrable Securities from the Registration Statement, and the
reason for (i) or (ii) is the Commission’s determination that
(x) the offering of any of the Registrable Securities constitutes a
primary offering of securities by the Company, (y) Rule 415 may not
be relied upon for the registration of the resale of any or all of
the Registrable Securities, and/or (z) a Holder of any Registrable
Securities must be named as an underwriter, the Holders understand
and agree that in the case of (ii) the Company may (notwithstanding
anything to the contrary contained herein) reduce, on a pro rata
basis, in the manner provided above, the total number of
Registrable Securities to be registered on behalf of each such
Holder, and in the case of (i) or (ii) the Holder shall not be
entitled to liquidated damages with respect to the Registrable
Securities not registered for the reason set forth in (i) or so
reduced on a pro rata basis as set forth above.
(h) Registration of Anti-Dilution
Shares. In the event that Anti-Dilution Shares are issued,
the resale of which is not covered by the Registration Statement,
the Company shall file an additional registration statement
covering the resale of such Anti-Dilution Shares on the same
material terms applicable to the Registrable Securities provided
however, the initial filing deadline shall be sixty (60) calendar
days after the first anniversary of the Closing Date and the
effectiveness deadline shall be one hundred twenty (120) calendar
days after the first anniversary of the Closing Date.
4. Registration
Procedures. The Company will keep each Holder
reasonably advised as to the filing and effectiveness of the
Registration Statement. At its expense with respect to the
Registration Statement, the Company will:
(a) prepare and file
with the Commission with respect to the Registrable Securities, a
Registration Statement in accordance with Section 3(a) hereof, and use its
commercially reasonable efforts to cause such Registration
Statement to become effective and to remain effective for
the Effectiveness
Period;
(b) not name any Holder
in the Registration Statement as an underwriter without that
Holder’s prior written consent;
(c) if the Registration
Statement is subject to review by the Commission, promptly respond
to all comments and diligently pursue resolution of any comments to
the satisfaction of the Commission;
(d) prepare and file
with the Commission such amendments and supplements to such
Registration Statement as may be necessary to keep such
Registration Statement effective during the Effectiveness
Period;
(e) furnish, without
charge, to each Holder of Registrable Securities covered by such
Registration Statement (i) a reasonable number of copies of such
Registration Statement (including any exhibits thereto other than
exhibits incorporated by reference), each amendment and supplement
thereto as such Holder may reasonably request, (ii) such number of
copies of the prospectus included in such Registration Statement
(including each preliminary prospectus and any other prospectus
filed under Rule 424 of the Securities Act) as such Holders may
reasonably request, in conformity with the requirements of the
Securities Act, and (iii) such other documents as such Holder may
reasonably require to consummate the disposition of the Registrable
Securities owned by such Holder, but only during the Effectiveness
Period; provided that the Company shall have no obligation to
furnish any document pursuant to this clause that is available on
the XXXXX system;
(f) use its
commercially reasonable efforts to register or qualify such
registration under such other applicable securities laws of such
jurisdictions within the United States as any Holder of Registrable
Securities covered by such Registration Statement reasonably
requests and as may be necessary for the marketability of the
Registrable Securities (such request to be made by the time the
applicable Registration Statement is deemed effective by the
Commission) and do any and all other acts and things necessary to
enable such Holder to consummate the disposition in such
jurisdictions of the Registrable Securities owned by such Holder;
provided, that the
Company shall not be required to (i) qualify generally to do
business in any jurisdiction where it would not otherwise be
required to qualify but for this paragraph, (ii) subject itself to
taxation in any such jurisdiction, or (iii) consent to general
service of process in any such jurisdiction where it has not
already done so;
(g) as promptly as
practicable after becoming aware of such event, notify each Holder
of Registrable Securities, the disposition of which requires
delivery of a prospectus relating thereto under the Securities Act,
of the happening of any event, which comes to the Company’s
attention, that will after the occurrence of such event cause the
prospectus included in such Registration Statement, if not amended
or supplemented, to contain an untrue statement of a material fact
or an omission 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 and
the Company shall promptly thereafter prepare and furnish to such
Holder a supplement or amendment to such prospectus (or prepare and
file appropriate reports under the Exchange Act) so that, as
thereafter delivered to the purchasers of such Registrable
Securities, such prospectus shall not contain an 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, unless suspension of the use of such prospectus
otherwise is authorized herein or in the event of a Blackout
Period, in which case no supplement or amendment need be furnished
(or Exchange Act filing made) until the termination of such
suspension or Blackout Period; provided that any and all
information provided to the Holder pursuant to such notification
shall remain confidential to each Holder until such information
otherwise becomes public, unless disclosure by a Holder is required
by law;
(h) comply, and
continue to comply during the Effectiveness Period, in all material
respects with the Securities Act and the Exchange Act and with all
applicable rules and regulations of the Commission with respect to
the disposition of all securities covered by such Registration
Statement;
(i) as promptly as
practicable after becoming aware of such event, notify each Holder
of Registrable Securities being offered or sold pursuant to the
Registration Statement of the issuance by the Commission of any
stop order or other suspension of effectiveness of the Registration
Statement;
(j) use
its commercially reasonable efforts to cause all the Registrable
Securities covered by the Registration Statement to be quoted on
the OTC Markets Group or such other principal securities market or
quotation system on which securities of the same class or series
issued by the Company are then listed or traded or
quoted;
(k) provide a transfer
agent and registrar, which may be a single entity, for the shares
of Common Stock at all times and cooperate with the Holders to
facilitate the timely preparation and delivery of the Registrable
Securities to be delivered to a transferee pursuant to the
Registration Statement (whether electronically or in certificated
form) which Registrable Securities shall be free, to the extent
permitted by the Subscription Agreement, of all restrictive
legends, and to enable such Registrable Securities to be in such
denominations and registered in such names as any such Holders may
request;
(l) cooperate with the
Holders of Registrable Securities being offered pursuant to the
Registration Statement to issue and deliver, or cause its transfer
agent to issue and deliver, certificates representing Registrable
Securities to be offered pursuant to the Registration Statement
within a reasonable time after the delivery of certificates
representing the Registrable Securities to the transfer agent or
the Company, as applicable, and enable such certificates to be in
such denominations or amounts as the Holders may reasonably request
and registered in such names as the Holders may
request;
(m) notify the Holders,
the Placement Agents and their counsel as promptly as reasonably
possible and (if requested by any such Person) confirm such notice
in writing no later than one (1) Trading Day following the day:
(i)(A) when a Prospectus or any prospectus supplement or
post-effective amendment to a Registration Statement is proposed to
be filed; (B) when the Commission notifies the Company whether
there will be a “no review,” “review” or a
“completion of a review” of such Registration Statement
and whenever the Commission comments in writing on such
Registration Statement (in which case the Company shall provide
true and complete copies thereof and all written responses thereto
to each of the Holders that pertain to the Holders as a selling
stockholder, but not information which the Company believes would
constitute material and non-public information); and (C) with
respect to each Registration Statement or any post-effective
amendment, when the same has been declared effective, provided,
however, that such notice under this clause (C) shall be delivered
to each Holder; (ii) of any request by the Commission or any other
federal or state governmental authority for amendments or
supplements to a Registration Statement or prospectus or for
additional information that pertains to the Holders as selling
stockholders; or (iii) 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;
(n) during the
Effectiveness Period, refrain from bidding for or purchasing any
Common Stock or any right to purchase Common Stock or attempting to
induce any person to purchase any such security or right if such
bid, purchase or attempt would in any way limit the right of the
Holders to sell Registrable Securities by reason of the limitations
set forth in Regulation M of the Exchange Act; and
(o) take all other
commercially reasonable actions necessary to enable, expedite, or
facilitate the Holders to dispose of the Registrable Securities by
means of the Registration Statement during the term of this
Agreement.
(a) Each Holder agrees
that, upon receipt of any notice from the Company of the happening
of any event of the kind described in Section 4(g) hereof or of the
commencement of a Blackout Period, such Holder shall discontinue
the disposition of Registrable Securities included in the
Registration Statement until such Holder’s receipt of the
copies of the supplemented or amended prospectus contemplated by
Section
4(g) hereof or
notice of the end of the Blackout Period, and, if so directed by
the Company, such Holder shall deliver to the Company (at the
Company’s expense) all copies (including, without limitation,
any and all drafts), other than permanent file copies, then in such
Holder’s possession, of the prospectus covering such
Registrable Securities current at the time of receipt of such
notice.
(b) The Holders of the
Registrable Securities shall provide such information as may
reasonably be requested by the Company in connection with the
preparation of any registration statement, including amendments and
supplements thereto, in order to effect the registration of any
Registrable Securities under the Securities Act pursuant to
Section
3(a) of this Agreement and in
connection with the Company’s obligation to comply with
federal and applicable state securities laws, including a completed
questionnaire in the form attached to this Agreement as Annex A (a
“Selling Securityholder
Questionnaire”) or any update thereto not later than
three (3) Business Days following a request therefore from the
Company.
(c) Each Holder, by its
acceptance of the Registrable Securities, agrees to cooperate with
the Company as reasonably requested by the Company in connection
with the preparation and filing of any Registration Statement
hereunder, unless such Holder has notified the Company in writing
of its election to exclude all of its Registrable Securities from
such Registration Statement.
6. Registration
Expenses. The Company shall pay all expenses in
connection with any registration obligation provided herein,
including, without limitation, all registration, filing, stock
exchange fees, printing expenses, all fees and expenses of
complying with applicable securities laws, and the fees and
disbursements of counsel for the Company and of the Company’s
independent accountants; provided, that, in any
underwritten registration or other Secondary Offering, the Company
shall have no obligation to pay any underwriting discounts, selling
commissions or transfer taxes attributable to the Registrable
Securities being sold by the Holders thereof, which underwriting
discounts, selling commissions and transfer taxes shall be borne by
such Holders. Except as provided in this Section 6 and Section 8 of this Agreement, the
Company shall not be responsible for the expenses of any attorney
or other advisor employed by a Holder.
7. Assignment of
Rights. No Holder may assign its rights under
this Agreement to any party without the prior written consent of
the Company; provided, however, that any Holder may
assign its rights under this Agreement without such consent to a
Permitted Assignee as long as (a) such transfer or assignment is
effected in accordance with applicable securities laws; (b) such
transferee or assignee agrees in writing to become bound by and
subject to the terms of this Agreement; and (c) such Holder
notifies the Company in writing of such transfer or assignment,
stating the name and address of the transferee or assignee and
identifying the Registrable Securities with respect to which such
rights are being transferred or assigned. The Company may assign
this Agreement or any rights or obligations hereunder without the
prior written consent of the other party hereto.
8. Indemnification.
(a) In the event of
the offer and sale of Registrable Securities under the Securities
Act, the Company shall, and hereby does, indemnify and hold
harmless, to the fullest extent permitted by law, each Holder, its
directors, officers, partners, and each other person, if any, who
controls or is under common control with such Holder within the
meaning of Section 15 of the Securities Act, against any losses,
claims, damages or liabilities, joint or several, and expenses to
which the Holder or any such director, officer, partner or
controlling person may become subject under the Securities Act or
otherwise, insofar as such losses, claims, damages, liabilities or
expenses (or actions or proceedings, whether commenced or
threatened, in respect thereof) arise out of or are based upon any
untrue statement of any material fact contained in any registration
statement prepared and filed by the Company under which Registrable
Securities were registered under the Securities Act, any
preliminary prospectus, final prospectus or summary prospectus
contained therein, or any amendment or supplement thereto, or any
omission to state therein a material fact required to be stated or
necessary to make the statements therein in light of the
circumstances in which they were made not misleading, and the
Company shall reimburse the Holder, and each such director,
officer, partner and controlling person for any legal or any other
expenses reasonably incurred by them in connection with
investigating, defending or settling any such loss, claim, damage,
liability, action or proceeding; provided, however, that the Company shall
not be liable in any such case (i) to the extent that any such
loss, claim, damage, liability (or action or proceeding in respect
thereof) or expense arises out of or is based upon (x) an untrue
statement in or omission from such registration statement, any such
preliminary prospectus, final prospectus, summary prospectus,
amendment or supplement in reliance upon and in conformity with
written information included in the Selling Securityholder
Questionnaire, attached hereto as Annex A, furnished by a Holder or
its representative to the Company expressly for use in the
preparation thereof or (y) the failure of a Holder to comply with
the covenants and agreements contained in Section 5 hereof respecting the sale of
Registrable Securities; or (ii) if the person asserting any such
loss, claim, damage, liability (or action or proceeding in respect
thereof) who purchased the Registrable Securities that are the
subject thereof did not receive a copy of an amended preliminary
prospectus or the final prospectus (or the final prospectus as
amended or supplemented) at or prior to the written confirmation of
the sale of such Registrable Securities to such person because of
the failure of such Holder to so provide such amended preliminary
or final prospectus and the untrue statement or omission of a
material fact made in such preliminary prospectus was corrected in
the amended preliminary or final prospectus (or the final
prospectus as amended or supplemented). Such indemnity shall remain
in full force and effect regardless of any investigation made by or
on behalf of the Holders, or any such director, officer, partner or
controlling person and shall survive the transfer of such shares by
the Holder.
(b) As a condition to
including Registrable Securities in any registration statement
filed pursuant to this Agreement, each Holder agrees, severally and
not jointly, to be bound by the terms of this Section 8 and to indemnify and hold
harmless, to the fullest extent permitted by law, the Company, each
of its directors, officers, partners, and each underwriter, if any,
and each other person, if any, who controls the Company within the
meaning of Section 15 of the Securities Act, against any losses,
claims, damages or liabilities, joint or several, to which the
Company or any such director or officer or controlling person may
become subject under the Securities Act or otherwise, insofar as
such losses, claims, damages or liabilities (or actions or
proceedings, whether commenced or threatened, in respect thereof)
arise out of or are based upon any untrue statement of a material
fact or any omission of a material fact required to be stated in
any registration statement, any preliminary prospectus, final
prospectus, summary prospectus, amendment or supplement thereto or
necessary to make the statements therein not misleading, to the
extent, but only to the extent, that such untrue statement or
omission is included or omitted in reliance upon and in conformity
with written information included in the Selling Securityholder
Questionnaire, attached hereto as Annex A, furnished by the Holder
or its representative to the Company expressly for use in the
preparation thereof, and such Holder shall reimburse the Company,
and its directors, officers, partners, and any such controlling
persons for any legal or other expenses reasonably incurred by them
in connection with investigating, defending, or settling any such
loss, claim, damage, liability, action, or proceeding; provided, however, that indemnity
obligation contained in this Section 8(b) shall in no event exceed
the amount of the net proceeds received by such Holder as a result
of the sale of such Holder’s Registrable Securities pursuant
to such registration statement, except in the case of fraud or
willful misconduct. Such indemnity shall remain in full force and
effect, regardless of any investigation made by or on behalf of the
Company or any such director, officer or controlling person and
shall survive the transfer by any Holder of such
shares.
(c) Promptly after
receipt by an indemnified party of notice of the commencement of
any action or proceeding involving a claim referred to in this
Section
8 (including any
governmental action), such indemnified party shall, if a claim in
respect thereof is to be made against an indemnifying party, give
written notice to the indemnifying party of the commencement of
such action; provided, that the failure of
any indemnified party to give notice as provided herein shall not
relieve the indemnifying party of its obligations under this
Section, except to the extent that the indemnifying party is
actually prejudiced by such failure to give notice. In case any
such action is brought against an indemnified party, unless in the
reasonable judgment of counsel to such indemnified party a conflict
of interest between such indemnified party and indemnifying parties
may exist or the indemnified party may have defenses not available
to the indemnifying party in respect of such claim, the
indemnifying party shall be entitled to participate in and to
assume the defense thereof, with counsel reasonably satisfactory to
such indemnified party and, after notice from the indemnifying
party to such indemnified party of its election so to assume the
defense thereof, the indemnifying party shall not be liable to such
indemnified party for any legal or other expenses subsequently
incurred by the latter in connection with the defense thereof,
unless in such indemnified party’s reasonable judgment a
conflict of interest between such indemnified and indemnifying
parties arises in respect of such claim after the assumption of the
defenses thereof or the indemnifying party fails to defend such
claim in a diligent manner, other than reasonable costs of
investigation. Neither an indemnified party nor an indemnifying
party shall be liable for any settlement of any action or
proceeding effected without its consent. No indemnifying party
shall, without the consent of the indemnified party, consent to
entry of any judgment or enter into any settlement, which does not
include as an unconditional term thereof the giving by the claimant
or plaintiff to such indemnified party of a release from all
liability in respect of such claim or litigation. Notwithstanding
anything to the contrary set forth herein, and without limiting any
of the rights set forth above, in any event any party shall have
the right to retain, at its own expense, counsel with respect to
the defense of a claim. Each indemnified party shall furnish such
information regarding itself or the claim in question as an
indemnifying party may reasonably request in writing and as shall
be reasonably required in connection with defense of such claim and
litigation resulting therefrom.
(d) If an indemnifying
party does not or is not permitted to assume the defense of an
action pursuant to Section 8(c) or in the case of the
expense reimbursement obligation set forth in Sections 8(a) and 8(b), the
indemnification required by Sections 8(a) and 8(b) shall be made by periodic
payments of the amount thereof during the course of the
investigation or defense, as and when bills are received or
expenses, losses, damages, or liabilities are
incurred.
(e) If the
indemnification provided for in Section 8(a) or 8(b) is held by a court of
competent jurisdiction to be unavailable to an indemnified party
with respect to any loss, liability, claim, damage or expense
referred to herein, the indemnifying party, in lieu of indemnifying
such indemnified party hereunder, shall contribute to the amount
paid or payable by such indemnified party as a result of such loss,
liability, claim, damage or expense (i) in such proportion as is
appropriate to reflect the proportionate relative fault of the
indemnifying party on the one hand and the indemnified party on the
other (determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or omission
relates to information supplied by the indemnifying party or the
indemnified party and the parties’ relative intent,
knowledge, access to information and opportunity to correct or
prevent such untrue statement or omission), or (ii) if the
allocation provided by clause (i) above is not permitted by
applicable law or provides a lesser sum to the indemnified party
than the amount hereinafter calculated, then in such proportion as
is appropriate to reflect not only the proportionate relative fault
of the indemnifying party and the indemnified party, but also the
relative benefits received by the indemnifying party on the one
hand and the indemnified party on the other, as well as any other
relevant equitable considerations. Notwithstanding any other
provision of this Section
8(e), no Holder shall be required to contribute any amount
in excess of the amount by which the net proceeds received by such
Holder from the sale of the Registrable Securities pursuant to the
Registration Statement exceeds the amount of damages that such
Holder has otherwise been required to pay by reason of such untrue
or alleged untrue statement of a material fact or omission, except
in the case of fraud or willful misconduct. No indemnified party
guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Securities Act) shall be entitled to
contribution from any indemnifying party who was not guilty of such
fraudulent misrepresentation.
(f) Notwithstanding the
foregoing, to the extent that the provisions on indemnification and
contribution contained in the underwriting agreement entered into
in connection with an underwritten public offering are in conflict
with the foregoing provisions, the provisions in the underwriting
agreement shall control.
9. Rule 144. Until the
date on which all Subscribers shall have sold all of their
Conversion Shares, and Warrant Shares the Company shall file in a
timely manner (or, with respect to Form 8-K reports, shall use its
commercially reasonable efforts to file in a timely manner) all
reports required to be filed with the SEC pursuant to the Exchange
Act, and the regulations of the SEC thereunder, and the Company
shall not terminate its status as an issuer required to file
reports under the Exchange Act even if the Exchange Act or the
rules and regulations thereunder would otherwise permit such
termination.
10. Independent Nature of Each
Purchaser’s Obligations and Rights. The
obligations of each Purchaser under this Agreement are several and
not joint with the obligations of any other Purchaser and each
Purchaser shall not be responsible in any way for the performance
of the obligations of any other Purchaser under this Agreement.
Nothing contained herein and no action taken by any Purchaser
pursuant hereto, shall be deemed to constitute such Purchasers as a
partnership, an association, a joint venture, or any other kind of
entity, or create a presumption that the Purchasers are in any way
acting in concert or as a group with respect to such obligations or
the transactions contemplated by this Agreement. Each Purchaser
shall be entitled to independently protect and enforce its rights,
including without limitation the rights arising out of this
Agreement, and it shall not be necessary for any other Purchaser to
be joined as an additional party in any proceeding for such
purpose.
(a) Governing
Law. This Agreement shall be governed by and
construed in accordance with the laws of the United States of
America and the State of New York, both substantive and remedial,
without regard to New York conflicts of law principles.
Any judicial proceeding brought
against either of the parties to this Agreement or any dispute
arising out of this Agreement or any matter related hereto shall be
brought in the state or federal courts located in the State
of New York and, by its
execution and delivery of this Agreement, each party to this
Agreement accepts the jurisdiction of such courts. The foregoing
consent to jurisdiction shall not be deemed to confer rights on any
person other than the parties to this
Agreement.
(b) Remedies. Except as
otherwise specifically set forth herein with respect to a
Registration Event, in the event of a breach by the Company or by a
Holder of any of their respective obligations under this Agreement,
each 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, shall be entitled to
specific performance of its rights under this Agreement. Except as
otherwise specifically set forth herein with respect to a
Registration Event, the Company and each Holder agree that monetary
damages would not provide adequate compensation for any losses
incurred by reason of a breach by it of any of the provisions of
this Agreement and hereby further agrees that, in the event of any
action for specific performance in respect of such breach, it shall
not assert or shall waive the defense that a remedy at law would be
adequate.
(c) Subsequent Registration
Rights. Until the Registration Statement required
hereunder is declared effective by the Commission, the Company
shall not enter into any agreement granting any registration rights
with respect to any of its securities to any person without the
written consent of the Majority Holders.
(d) Successors and
Assigns. Except as otherwise provided herein, the
provisions hereof shall inure to the benefit of, and be binding
upon, the successors, Permitted Assignees, executors and
administrators of the parties hereto.
(e) No Inconsistent
Agreements. The Company has not entered, as of
the date hereof, and shall not enter, on or after the date of this
Agreement, into any agreement with respect to its securities that
would have the effect of impairing the rights granted to the
Holders in this Agreement or otherwise conflicts with the
provisions hereof.
(f) Entire
Agreement. This Agreement and the documents,
instruments and other agreements specifically referred to herein or
delivered pursuant hereto constitute the full and entire
understanding and agreement between the parties with regard to the
subjects hereof.
(g) Notices, etc. All
notices, consents,
waivers, and other communications which are required or permitted
under this Agreement shall be in writing will be deemed given to a
party (a) upon receipt, when personally delivered; (b) one (1)
Business Day after deposit with an nationally recognized overnight
courier service with next day delivery specified, costs prepaid) on
the date of delivery, if delivered to the appropriate address by
hand or by nationally recognized overnight courier service (costs
prepaid); (c) the date of transmission if sent by facsimile or
e-mail with confirmation of transmission by the transmitting
equipment if such notice or communication is delivered prior to
5:00 P.M., New York City time, on a Trading Day, or the next
Trading Day after the date of transmission, if such notice or
communication is delivered on a day that is not a Trading Day or
later than 5:00 P.M., New York City time, on any Trading Day,
provided confirmation of facsimile is mechanically or
electronically generated and kept on file by the sending party and
confirmation of email is kept on file, whether electronically or
otherwise, by the sending party and the sending party does not
receive an automatically generated message from the recipients
email server that such e-mail could not be delivered to such
recipient; (d) the date received or rejected by the addressee, if
sent by certified mail, return receipt requested, postage prepaid;
or (e) seven days after the placement of the notice into the mails
(first class postage prepaid), to the party at the address,
facsimile number, or e-mail address furnished by the such
party,
If to
the Company, to:
X.X.
Xxx 000
000
Xxxxxx Xxxx
Xxxxx
Xxxxx, XXX 0000
Attn:
Mr. Xxxxx Xxxxx, Chief Executive Officer
E-mail
Address: xxxxx@xxxxxxxxxxxxxxxxx.xxx
with
copy to:
CKR
Law, LLP
0000
Xxxxxx xx Xxxxxxxx, 00xx XX
Xxx
Xxxx, XX 00000
Attention: Xxxxx
Xxxxxxxx
Facsimile:
212-259-8200
E-mail
Address: xxxxxxxxx@xxxxxx.xxx
if to a
Purchaser or Broker, to:
such
Purchaser or Broker at the address set forth on the signature page
hereto;
or at
such other address as any party shall have furnished to the other
parties in writing in accordance with this Section 11(f).
(h) Delays or
Omissions. No delay or omission to exercise any
right, power or remedy accruing to any Holder, upon any breach or
default of the Company under this Agreement, shall impair any such
right, power or remedy of such Holder nor shall it be construed to
be a waiver of any such breach or default, or an acquiescence
therein, or of any similar breach or default thereunder occurring;
nor shall any waiver of any single breach or default be deemed a
waiver of any other breach or default theretofore or thereafter
occurring. Any waiver, permit, consent or approval of any kind or
character on the part of any Holder of any breach or default under
this Agreement, or any waiver on the part of any Holder of any
provisions or conditions of this Agreement, must be in writing and
shall be effective only to the extent specifically set forth in
such writing. All remedies, either under this Agreement, or by law
or otherwise afforded to any holder, shall be cumulative and not
alternative.
(i) Counterparts. This
Agreement may be executed in any number of counterparts, and with
respect to any Purchaser, by execution of an Omnibus Signature Page
to this Agreement and the Subscription Agreement, each of which
shall be enforceable against the parties actually executing such
counterparts, and all of which together shall constitute one
instrument. In the event that any signature is delivered by
facsimile transmission or by an e-mail, which contains a portable
document format (.pdf) file of an executed signature page, such
signature shall create a valid and binding obligation of the party
executing (or on whose behalf such signature is executed) with the
same force and effect as if such facsimile or e-mail of a .pdf
signature page were an original thereof.
(j) Severability. In the
case any provision of this Agreement shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the
remaining provisions shall not in any way be affected or impaired
thereby.
(k) Amendments. Except
as otherwise provided herein, the provisions of this Agreement may
be amended at any time and from time to time, and particular
provisions of this Agreement may be waived, with and only with an
agreement or consent in writing signed by the Company and the
Majority Holders; provided that this Agreement may not be amended
and the observance of any term hereof may not be waived with
respect to any Holder without the written consent of such Holder
unless such amendment or waiver applies to all Holders in the same
fashion. The Purchasers and Brokers acknowledge that by the
operation of this Section, the Majority Holders may have the right
and power to diminish or eliminate all rights of the Purchasers
and/or Brokers under this Agreement.
[company
signature page follows]
This
Registration Rights Agreement is hereby executed as of the date
first above written.
The Company:
By:
Name:
Title:
Purchasers
See Omnibus Signature Pages to Subscription Agreement
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Registrable Pre-Acquisition Stockholder (individual):
Print
Name
Signature
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Registrable Pre-Acquisition Stockholder (entity):
Print
Name of Entity
By:
Name:
Title:
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All Holders: Address
Selling Securityholder Notice and Questionnaire
The
undersigned beneficial owner of Registrable Securities of Sincerity
Applied Materials Holdings Corp., a Nevada corporation (the
“Company”), understands
that the Company has filed or intends to file with the U.S.
Securities and Exchange Commission a registration statement (the
“Registration
Statement”) for the registration and resale under Rule
415 of the Securities Act of 1933, as amended, of the Registrable
Securities, in accordance with the terms of the Registration Rights
Agreement (the “Registration Rights
Agreement”) to which this document is annexed. A copy
of the Registration Rights Agreement is available from the Company
upon request at the address set forth below. All capitalized terms
not otherwise defined herein shall have the meanings ascribed
thereto in the Registration Rights Agreement.
Certain
legal consequences arise from being named as a selling security
holder in the Registration Statement and the related prospectus.
Accordingly, holders and beneficial owners of Registrable
Securities are advised to consult their own securities law counsel
regarding the consequences of being named or not being named as a
selling security holder in the Registration Statement and the
related prospectus.
NOTICE
The
undersigned beneficial owner (the “Selling Securityholder”)
of Registrable Securities hereby elects to include the Registrable
Securities owned by it in the Registration Statement.
The
undersigned hereby provides the following information to the
Company and represents and warrants that such information is
accurate:
QUESTIONNAIRE
1. Name:
(a) Full
Legal Name of Selling Securityholder
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(b)
Full Legal Name of
Registered Holder (holder of record) (if not the same as (a) above)
through which Registrable Securities are held:
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(c)
If you are not a
natural person, full Legal Name of Natural Control Person (which
means a natural person who directly or indirectly alone or with
others has power to vote or dispose of the securities covered by
this Questionnaire):
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2. Address
for Notices to Selling Securityholder:
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Telephone:
Fax:
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Email:
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Contact
Person:
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3. Broker-Dealer
Status:
(a)
Are you a
broker-dealer?
Yes
☐
No
☐
(b)
If
“yes” to Section 3(a), did you receive your Registrable
Securities as compensation for investment banking services to the
Company?
Yes
☐
No
☐
Note:
If “no”
to Section 3(b), the Commission’s staff has indicated that
you should be identified as an underwriter in the Registration
Statement.
(c)
Are you an
affiliate of a broker-dealer?
Yes
☐
No
☐
(d)
If you are an
affiliate of a broker-dealer, do you certify that you purchased the
Registrable Securities in the ordinary course of business, and at
the time of the purchase of the Registrable Securities to be
resold, you had no agreements or understandings, directly or
indirectly, with any person to distribute the Registrable
Securities?
Yes
☐
No
☐
Note:
If “no”
to Section 3(d), the Commission’s staff has indicated that
you should be identified as an underwriter in the Registration
Statement.
4.
Beneficial
Ownership of Securities of the Company Owned by the Selling
Securityholder:
Except as set forth below in this Item 4, the undersigned is not
the beneficial or registered owner of any securities of the
Company.
{00180139.4 / 4133.003}
(a)
Please list the
type (common stock, warrants, etc.) and amount of all securities of
the Company (including any Registrable Securities) beneficially
owned1 by
the Selling Securityholder:
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5.
Relationships
with the Company:
Except as set forth below, neither you nor (if you are a natural
person) any member of your immediate family, nor (if you are not a
natural person) any of your affiliates2, officers, directors
or principal equity holders (owners of 5% of more of the equity
securities of the undersigned) has held any position or office or
has had any other material relationship with the Company (or its
predecessors or affiliates) during the past three
years.
State
any exceptions here:
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The
undersigned agrees to promptly notify the Company of any
inaccuracies or changes in the information provided herein that may
occur subsequent to the date hereof at any time while the
Registration Statement remains effective.
By
signing below, the undersigned consents to the disclosure of the
information contained herein in its answers to Items 1 through 5
and the inclusion of such information in the Registration Statement
and the related prospectus and any amendments or supplements
thereto. The undersigned understands that such information will be
relied upon by the Company in connection with the preparation or
amendment of the Registration Statement and the related prospectus
and any amendments or supplements thereto.
It is
possible that a security may have more than one “beneficial
owner,” such as a trust, with two co-trustees sharing voting
power, and the settlor or another third party having investment
power, in which case each of the three would be the
“beneficial owner” of the securities in the
trust. The power to vote or direct the voting, or to invest
or dispose of, or direct the investment or disposition of, a
security may be indirect and arise from legal, economic,
contractual or other rights, and the determination of beneficial
ownership depends upon who ultimately possesses or shares the power
to direct the voting or the disposition of the
security.
The
final determination of the existence of beneficial ownership
depends upon the facts of each case. You may, if you believe
the facts warrant it, disclaim beneficial ownership of securities
that might otherwise be considered “beneficially owned”
by you.
Affiliate:
An “affiliate” is a company or person that directly, or
indirectly through one or more intermediaries, controls you, or is
controlled by you, or is under common control with
you.
IN
WITNESS WHEREOF the undersigned, by authority duly given, has
caused this Selling Securityholder Notice and Questionnaire to be
executed and delivered either in person or by its duly authorized
agent.
BENEFICIAL OWNER (individual) BENEFICIAL OWNER (entity)
Signature
Name of
Entity
Print
Name
Signature
Print
Name:
Signature (if Joint Tenants or Tenants in
Common)
Title:
PLEASE E-MAIL OR FAX A COPY OF THE COMPLETED AND EXECUTED SELLING
SECURITYHOLDER NOTICE AND QUESTIONNAIRE, AND RETURN THE ORIGINAL BY
OVERNIGHT MAIL, TO:
CKR Law
LLP
0000
Xxxxxx xx xxx Xxxxxxxx, 00xx Xxxxx
Xxx
Xxxx, XX 00000
Attention: Xxxxxxx
Xxxxxxxx
Facsimile: (000)
000-0000
E-mail
Address: xxxxxxxxx@xxxxxx.xxx