Exhibit 10.2
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (this "Agreement") is made and
entered into as of August ___, 2005, by and between Eagle Broadband, Inc., a
corporation organized under the laws of the State of Texas (the "Company"), and
the person executing the signature page (the "Purchaser").
This Agreement is made pursuant to the Securities Purchase Agreement,
dated as of the date hereof, by and between the Purchaser and the Company (as
amended, modified or supplemented from time to time, the "Securities Purchase
Agreement").
The Company and the Purchaser hereby agree as follows:
1. Definitions. Capitalized terms used and not otherwise defined herein that are
defined in the Securities Purchase Agreement shall have the meanings given such
terms in the Securities Purchase Agreement. As used in this Agreement, the
following terms shall have the following meanings:
"Commission" means the Securities and Exchange Commission.
"Common Stock" means shares of the Company's common stock, par
value $.001 per share.
"Effectiveness Date" means with respect to the Registration
Statement, the date the Commission deems such Registration Statement effective.
"Effectiveness Period" shall have the meaning set forth in
Section 2(a).
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Filing Date" means, with respect to the Registration
Statement required to be filed hereunder, a date no later than 10 business days
following the date hereof.
"Holder" or "Holders" means the Purchaser or any of its
affiliates or transferees to the extent any of them hold Registrable Securities.
"Indemnified Party" shall have the meaning set forth in
Section 5(c).
"Indemnifying Party" shall have the meaning set forth in
Section 5(c).
"Proceeding" means an action, claim, suit, investigation or
proceeding (including, without limitation, an investigation or partial
proceeding, such as a deposition), whether commenced or threatened.
"Prospectus" means the prospectus included in the Registration
Statement (including, without limitation, a prospectus that includes any
information previously omitted from a prospectus filed as part of an effective
registration statement in reliance upon Rule 430A promulgated under the
Securities Act), as amended or supplemented by any prospectus supplement, with
respect to the terms of the offering of any portion of the Registrable
Securities covered by the Registration Statement, and all other amendments and
supplements to the Prospectus, including post-effective amendments, and all
material incorporated by reference or deemed to be incorporated by reference in
such Prospectus.
"Registrable Securities" means the shares of Common Stock
issued pursuant to the Securities Purchase Agreement.
"Registration Statement" means each registration statement
required to be filed hereunder, including the Prospectus, amendments and
supplements to such registration statement or Prospectus, including pre- and
post-effective amendments, all exhibits thereto, and all material incorporated
by reference or deemed to be incorporated by reference in such registration
statement.
"Rule 144" means Rule 144 promulgated by the Commission
pursuant to the Securities Act, as such Rule may be amended from time to time,
or any similar rule or regulation hereafter adopted by the Commission having
substantially the same effect as such Rule.
"Rule 415" means Rule 415 promulgated by the Commission
pursuant to the Securities Act, as such Rule may be amended from time to time,
or any similar rule or regulation hereafter adopted by the Commission having
substantially the same effect as such Rule.
"Rule 424" means Rule 424 promulgated by the Commission
pursuant to the Securities Act, as such Rule may be amended from time to time,
or any similar rule or regulation hereafter adopted by the Commission having
substantially the same effect as such Rule.
"Securities Act" means the Securities Act of 1933, as amended.
"Securities Purchase Agreement" means the agreement between
the parties hereto calling for the issuance by the Company of Common Stock.
"Trading Market" means any of the NASD OTC Bulletin Board or
the American Stock Exchange.
2. Registration.
(a) On or prior to the Filing Date the Company shall prepare and file
with the Commission a Registration Statement on an appropriate form
covering the resale of the Registrable Securities for an offering to be
made on a continuous basis pursuant to Rule 415. The Company shall use its
reasonable commercial efforts to cause the Registration Statement to be
declared effective under the Securities Act as promptly as possible after
the filing thereof. The Company shall use its reasonable commercial efforts
to keep the Registration Statement continuously effective under the
Securities Act until the date which is the earlier date of when (i) all
Registrable Securities have been sold or (ii) all Registrable Securities
may be sold immediately without registration under the Securities Act
pursuant to Rule 144, as determined by the counsel to the Company pursuant
to a written opinion letter to such effect, addressed to the Company's
transfer agent and the affected Holders (the "Effectiveness Period").
(b) If the Registration Statement is not filed on or prior to the
Filing Date the Company shall pay to each Holder an amount in cash, as
liquidated damages and not as a penalty, equal to 1% of such Purchaser's
purchase price of the Company Common Stock. If the Registration Statement
is not filed on or prior to 30 calendar days from the date of this
Agreement (such failure or breach being referred to as an "Event," and the
date on which such Event occurs, being referred to as "Event Date"), then
until the applicable Event is cured, the Company shall pay to each Holder
an amount in cash, as liquidated damages and not as a penalty, equal to 4%
of such Purchaser's purchase price of the Company Common Stock for such
thirty (30) day period (prorated for partial period), which liquidated
damage amount shall increase to 5% for each subsequent 30 day period
(prorated for partial periods). While such Event continues, such liquidated
damages shall be paid not less often than each thirty (30) days.
(c) Within five (5) business days of the Effectiveness Date, the
Company shall cause its counsel to issue a blanket opinion in the form
attached hereto as Schedule A, to the transfer agent stating that the
shares are subject to an effective registration statement and can be
reissued free of restrictive legend upon notice of a sale by the Purchaser
and confirmation by the Purchaser that it has complied with the prospectus
delivery requirements, provided that the Company has not advised the
transfer agent orally or in writing that the opinion has been withdrawn.
Copies of the blanket opinion required by this Section 2(c) shall be
delivered to the Purchaser within the time frame set forth above.
3. Registration Procedures. If and whenever the Company is required by the
provisions hereof to effect the registration of any Registrable Securities under
the Securities Act, the Company will, as expeditiously as possible:
(a) prepare and file with the Commission the Registration Statement
with respect to such Registrable Securities, respond as promptly as
possible to any comments received from the Commission, and use its
commercially reasonable efforts to cause the Registration Statement to
become and remain effective for the Effectiveness Period with respect
thereto, and promptly provide to the Purchaser copies of all filings and
Commission letters of comment relating thereto;
(b) prepare and file with the Commission such amendments and
supplements to the Registration Statement and the Prospectus used in
connection therewith as may be necessary to comply with the provisions of
the Securities Act with respect to the disposition of all Registrable
Securities covered by the Registration Statement and to keep such
Registration Statement effective until the expiration of the Effectiveness
Period;
(c) furnish to the Purchaser such number of copies of the Registration
Statement and the Prospectus included therein (including each preliminary
Prospectus) as the Purchaser reasonably may request to facilitate the
public sale or disposition of the Registrable Securities covered by the
Registration Statement;
(d) use its commercially reasonable efforts to register or qualify the
Purchaser's Registrable Securities covered by the Registration Statement
under the securities or "blue sky" laws of such jurisdictions within the
United States as the Purchaser may reasonably request, provided, however,
that the Company shall not for any such purpose be required to qualify
generally to transact business as a foreign corporation in any jurisdiction
where it is not so qualified or to consent to general service of process in
any such jurisdiction;
(e) list the Registrable Securities covered by the Registration
Statement with any securities exchange on which the Common Stock of the
Company is then listed; and
(f) immediately notify the Purchaser at any time when a Prospectus
relating thereto is required to be delivered under the Securities Act, of
the happening of any event of which the Company has knowledge as a result
of which the Prospectus contained in such Registration Statement, as then
in effect, includes an untrue statement of a material fact or omits to
state a material fact required to be stated therein or necessary to make
the statements therein not misleading in light of the circumstances then
existing.
4. Registration Expenses. All expenses relating to the Company's compliance
with Sections 2 and 3 hereof, including, without limitation, all registration
and filing fees, printing expenses, fees and disbursements of counsel and
independent public accountants for the Company, fees and expenses (including
reasonable counsel fees) incurred in connection with complying with state
securities or "blue sky" laws, fees of the NASD, transfer taxes, fees of
transfer agents and registrars, are called "Registration Expenses". All selling
commissions applicable to the sale of Registrable Securities, including any fees
and disbursements of any special counsel to the Holders are not included in
Registration Expenses, and are the responsibility of the Purchaser. The Company
shall only be responsible for all Registration Expenses.
5. Indemnification.
(a) In the event of a registration of any Registrable Securities under
the Securities Act pursuant to this Agreement, the Company will indemnify
and hold harmless the Purchaser, and its officers, directors and each other
person, if any, who controls the Purchaser within the meaning of the
Securities Act, against any losses, claims, damages or liabilities, joint
or several, to which the Purchaser, or such persons may become subject
under the Securities Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are
based upon any untrue statement or alleged untrue statement of any material
fact contained in any Registration Statement under which such Registrable
Securities were registered under the Securities Act pursuant to this
Agreement, any preliminary Prospectus or final Prospectus contained
therein, or any amendment or supplement thereof, 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, and will reimburse the Purchaser, and each such
person for any reasonable legal or other expenses incurred by them in
connection with investigating or defending any such loss, claim, damage,
liability or action; provided, however, that the Company will not be liable
in any such case if and to the extent that any such loss, claim, damage or
liability arises out of or is based upon an untrue statement or alleged
untrue statement or omission or alleged omission so made in conformity with
information furnished by or on behalf of the Purchaser or any such person
in writing specifically for use in any such document.
(b) In the event of a registration of the Registrable Securities under
the Securities Act pursuant to this Agreement, the Purchaser will indemnify
and hold harmless the Company, and its officers, directors and each other
person, if any, who controls the Company within the meaning of the
Securities Act, against all losses, claims, damages or liabilities, joint
or several, to which the Company or such persons may become subject under
the Securities Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon
any untrue statement or alleged untrue statement of any material fact which
was furnished in writing by the Purchaser to the Company expressly for use
in (and such information is contained in) the Registration Statement under
which such Registrable Securities were registered under the Securities Act
pursuant to this Agreement, any preliminary Prospectus or final Prospectus
contained therein, or any amendment or supplement thereof, 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, and will reimburse the Company and each
such person for any reasonable legal or other expenses incurred by them in
connection with investigating or defending any such loss, claim, damage,
liability or action, provided, however, that the Purchaser will be liable
in any such case if and only to the extent that any such loss, claim,
damage or liability arises out of or is based upon an untrue statement or
alleged untrue statement or omission or alleged omission so made in
conformity with information furnished in writing to the Company by or on
behalf of the Purchaser specifically for use in any such document.
Notwithstanding the provisions of this paragraph, the Purchaser shall not
be required to indemnify any person or entity in excess of the amount of
the aggregate net proceeds received by the Purchaser in respect of
Registrable Securities in connection with any such registration under the
Securities Act.
(c) Promptly after receipt by a party entitled to claim
indemnification hereunder (an "Indemnified Party") of notice of the
commencement of any action, such Indemnified Party shall, if a claim for
indemnification in respect thereof is to be made against a party hereto
obligated to indemnify such Indemnified Party (an "Indemnifying Party"),
notify the Indemnifying Party in writing thereof, but the omission so to
notify the Indemnifying Party shall not relieve it from any liability which
it may have to such Indemnified Party other than under this Section 5(c)
and shall only relieve it from any liability which it may have to such
Indemnified Party under this Section 5(c) if and to the extent the
Indemnifying Party is prejudiced by such omission. In case any such action
shall be brought against any Indemnified Party and it shall notify the
Indemnifying Party of the commencement thereof, the Indemnifying Party
shall be entitled to participate in and, to the extent it shall wish, to
assume and undertake the defense thereof with counsel satisfactory to such
Indemnified Party, and, after notice from the Indemnifying Party to such
Indemnified Party of its election so to assume and undertake the defense
thereof, the Indemnifying Party shall not be liable to such Indemnified
Party under this Section 5(c) for any legal expenses subsequently incurred
by such Indemnified Party in connection with the defense thereof; if the
Indemnified Party retains its own counsel, then the Indemnified Party shall
pay all fees, costs and expenses of such counsel, provided, however, that,
if the defendants in any such action include both the indemnified party and
the Indemnifying Party and the Indemnified Party shall have reasonably
concluded that there may be reasonable defenses available to it which are
different from or additional to those available to the Indemnifying Party
or if the interests of the Indemnified Party reasonably may be deemed to
conflict with the interests of the Indemnifying Party, the Indemnified
Party shall have the right to select one separate counsel and to assume
such legal defenses and otherwise to participate in the defense of such
action, with the reasonable expenses and fees of such separate counsel and
other expenses related to such participation to be reimbursed by the
Indemnifying Party.
(d) In order to provide for just and equitable contribution in the
event of joint liability under the Securities Act in any case in which
either (i) the Purchaser, or any officer, director or controlling person of
the Purchaser, makes a claim for indemnification pursuant to this Section 5
but it is judicially determined (by the entry of a final judgment or decree
by a court of competent jurisdiction and the expiration of time to appeal
or the denial of the last right of appeal) that such indemnification may
not be enforced in such case notwithstanding the fact that this Section 5
provides for indemnification in such case, or (ii) contribution under the
Securities Act may be required on the part of the Purchaser or such
officer, director or controlling person of the Purchaser in circumstances
for which indemnification is provided under this Section 5; then, and in
each such case, the Company and the Purchaser will contribute to the
aggregate losses, claims, damages or liabilities to which they may be
subject (after contribution from others) in such proportion so that the
Purchaser is responsible only for the portion represented by the percentage
that the public offering price of its securities offered by the
Registration Statement bears to the public offering price of all securities
offered by such Registration Statement, provided, however, that, in any
such case, (A) the Purchaser will not be required to contribute any amount
in excess of the public offering price of all such securities offered by it
pursuant to such Registration Statement; and (B) no person or entity guilty
of fraudulent misrepresentation (within the meaning of Section 10(f) of the
Act) will be entitled to contribution from any person or entity who was not
guilty of such fraudulent misrepresentation.
6. Representations and Warranties of Purchaser. Purchaser agrees to
complete Schedule B attached hereto and additionally to provide the Company any
information or assistance requested by the Company in order to file or complete
the Registration Statement.
7. Miscellaneous.
(a) Remedies. 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, will be entitled to specific performance of its rights under this
Agreement.
(b) Compliance. Each Holder covenants and agrees that it will comply
with the prospectus delivery requirements of the Securities Act as
applicable to it in connection with sales of Registrable Securities
pursuant to the Registration Statement.
(c) Discontinued Disposition. Each Holder agrees by its acquisition of
such Registrable Securities that, upon receipt of a notice from the Company
of the occurrence of a Discontinuation Event (as defined below), such
Holder will forthwith discontinue disposition of such Registrable
Securities under the applicable Registration Statement until such Holder's
receipt of the copies of the supplemented Prospectus and/or amended
Registration Statement or until it is advised in writing (the "Advice") by
the Company that the use of the applicable Prospectus may be resumed, and,
in either case, has received copies of any additional or supplemental
filings that are incorporated or deemed to be incorporated by reference in
such Prospectus or Registration Statement. The Company may provide
appropriate stop orders to enforce the provisions of this paragraph. For
purposes of this Section 7(d), a "Discontinuation Event" shall mean (i)
when the Commission notifies the Company whether there will be a "review"
of such Registration Statement and whenever the Commission comments in
writing on such Registration Statement (the Company shall provide true and
complete copies thereof and all written responses thereto to each of the
Holders); (ii) any request by the Commission or any other Federal or state
governmental authority for amendments or supplements to such Registration
Statement or Prospectus or for additional information; (iii) the issuance
by the Commission of any stop order suspending the effectiveness of such
Registration Statement covering any or all of the Registrable Securities or
the initiation of any Proceedings for that purpose; (iv) the receipt by the
Company of any notification with respect to the suspension of the
qualification or exemption from qualification of any of the Registrable
Securities for sale in any jurisdiction, or the initiation or threatening
of any Proceeding for such purpose; and/or (v) the occurrence of any event
or passage of time that makes the financial statements included in such
Registration Statement ineligible for inclusion therein or any statement
made in such Registration Statement or Prospectus or any document
incorporated or deemed to be incorporated therein by reference untrue in
any material respect or that requires any revisions to such Registration
Statement, Prospectus or other documents so that, in the case of such
Registration Statement or Prospectus, as the case may be, it will not
contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were
made, not misleading.
(d) Amendments and Waivers. The provisions of this Agreement,
including the provisions of this sentence, may not be amended, modified or
supplemented, and waivers or consents to departures from the provisions
hereof may not be given, unless the same shall be in writing and signed by
the Company and the Holders of the then outstanding Registrable Securities.
Notwithstanding the foregoing, a waiver or consent to depart from the
provisions hereof with respect to a matter that relates exclusively to the
rights of certain Holders and that does not directly or indirectly affect
the rights of other Holders may be given by Holders of at least a majority
of the Registrable Securities to which such waiver or consent relates;
provided, however, that the provisions of this sentence may not be amended,
modified, or supplemented except in accordance with the provisions of the
immediately preceding sentence.
(e) Notices. Any notice or request hereunder may be given to the
Company or the Purchaser at the respective addresses set forth below or as
may hereafter be specified in a notice designated as a change of address
under this Section 7(e). Any notice or request hereunder shall be given by
registered or certified mail, return receipt requested, hand delivery,
overnight mail, Federal Express or other national overnight next day
carrier (collectively, "Courier") or telecopy (confirmed by mail). Notices
and requests shall be, in the case of those by hand delivery, deemed to
have been given when delivered to any party to whom it is addressed, in the
case of those by mail or overnight mail, deemed to have been given three
(3) business days after the date when deposited in the mail or with the
overnight mail carrier, in the case of a Courier, the next business day
following timely delivery of the package with the Courier, and, in the case
of a telecopy, when confirmed. The address for such notices and
communications shall be as follows:
If to the Company: Eagle Broadband, Inc.
000 Xxxxxxxxxx Xxxxx
Xxxxxx Xxxx, XX 00000
Attention: Xxxx Xxxxx
President & Chief Executive Officer
Facsimile: (000) 000-0000
with a copy to:
Xxxxxx & Xxxxxxxxx, PC
0 Xxxxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxxxx
Facsimile: (000) 000-0000
If to a Purchaser: To the
address set forth
under such Purchaser
name on the signature
pages hereto.
If to any other Person
who is then
the registered Holder: To the address of such Holder as it
appears in the stock transfer books
of the Company
or such other address as may be designated in writing hereafter in
accordance with this Section 7(e) by such Person.
(f) Successors and Assigns. This Agreement shall inure to the benefit
of and be binding upon the successors and permitted assigns of each of the
parties and shall inure to the benefit of each Holder. The Company may not
assign its rights or obligations hereunder without the prior written
consent of each Holder. Each Holder may assign their respective rights
hereunder in the manner and to the Persons as permitted under the
Securities Purchase Agreement with the prior written consent of the
Company, which consent shall not be unreasonably withheld.
(g) Execution and Counterparts. This Agreement may be executed in any
number of counterparts, each of which when so executed shall be deemed to
be an original and, all of which taken together shall constitute one and
the same Agreement. In the event that any signature is delivered by
facsimile transmission, such signature shall create a valid binding
obligation of the party executing (or on whose behalf such signature is
executed) the same with the same force and effect as if such facsimile
signature were the original thereof.
(h) Governing Law. All questions concerning the construction,
validity, enforcement and interpretation of this Agreement shall be
governed by and construed and enforced in accordance with the internal laws
of the State of Texas, without regard to the principles of conflicts of law
thereof. Each party agrees that all Proceedings concerning the
interpretations, enforcement and defense of the transactions contemplated
by this Agreement shall be commenced exclusively in the state and federal
courts sitting in the City of Houston, County of Xxxxxx, Texas. Each party
hereto hereby irrevocably submits to the exclusive jurisdiction of the
state and federal courts sitting in the City of Houston, County of Xxxxxx,
Texas for the adjudication of any dispute hereunder or in connection
herewith or with any transaction contemplated hereby or discussed herein,
and hereby irrevocably waives, and agrees not to assert in any Proceeding,
any claim that it is not personally subject to the jurisdiction of any such
court, that such Proceeding is improper.
(i) Cumulative Remedies. The remedies provided herein are cumulative
and not exclusive of any remedies provided by law.
(j) Severability. If any term, provision, covenant or restriction of
this Agreement is held by a court of competent jurisdiction to be invalid,
illegal, void or unenforceable, the remainder of the terms, provisions,
covenants and restrictions set forth herein shall remain in full force and
effect and shall in no way be affected, impaired or invalidated, and the
parties hereto shall use their reasonable efforts to find and employ an
alternative means to achieve the same or substantially the same result as
that contemplated by such term, provision, covenant or restriction. It is
hereby stipulated and declared to be the intention of the parties that they
would have executed the remaining terms, provisions, covenants and
restrictions without including any of such that may be hereafter declared
invalid, illegal, void or unenforceable.
(k) Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
[BALANCE OF PAGE INTENTIONALLY LEFT BLANK;
SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, the parties have executed this Registration Rights
Agreement as of the date first written above.
EAGLE BROADBAND, INC. XXXXXXXXX X. XXXXXXXXX TRUST
By: By:
----------------------- ---------------------------
Name: Name:
----------------------- ---------------------------
Title: Title:
----------------------- ---------------------------
Address for Notices:
X.X. Xxx 000000
Xxxxxx Xxxxx Xx, XX 00000
Attention: ________________
Facsimile: (000) 000-0000
IN WITNESS WHEREOF, the parties have executed this Registration Rights
Agreement as of the date first written above.
EAGLE BROADBAND, INC. XXXXX XXXXXX
By: By:
----------------------- ----------------------------
Name: Name:
----------------------- ----------------------------
Title: Title:
----------------------- ----------------------------
Address for Notices:
0000 Xxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
Attention: ________________
Facsimile: ________________
IN WITNESS WHEREOF, the parties have executed this Registration Rights Agreement
as of the date first written above.
EAGLE BROADBAND, INC. FRORER PARTNERS, L.P.
By: By:
----------------------- ------------------------------
Name: Name:
----------------------- ------------------------------
Title: Title:
----------------------- ------------------------------
Address for Notices:
00 Xxxxx Xxxxx Xxxxxx
Xxxxxxx, XX 00000
Attention: ________________
Facsimile: ________________
IN WITNESS WHEREOF, the parties have executed this Registration Rights Agreement
as of the date first written above.
EAGLE BROADBAND, INC. W. XXXXXXX XXXXXXXXX
By: By:
----------------------- ---------------------------
Name: Name:
----------------------- ---------------------------
Title: Title:
----------------------- ---------------------------
Address for Notices:
000 Xxxxxx-Xxxxxxx Xxxx
Xxxxxxxxx, XX 00000
Attention: ________________
Facsimile: ________________
SCHEDULE A
[August ____, 2005]
---------------------
---------------------
---------------------
Attn: ________________
Re: [Company Name]. Registration Statement
Ladies and Gentlemen:
--------------------------------------------------------------------------------
As counsel to [company name] , a Texas corporation (the "Company"), we
have been requested to render our opinion to you in connection with the resale
by the individuals or entitles listed on Schedule A attached hereto (the
"Selling Stockholders"), of an aggregate of [amount]shares (the "Shares") of the
Company's Common Stock.
A Registration Statement under the Securities Act of 1933, as amended
(the "Act"), with respect to the resale of the Shares was declared effective by
the Securities and Exchange Commission on [date]. Enclosed is the Prospectus
dated [date]. We understand that the Shares are to be offered and sold in the
manner described in the Prospectus.
Based upon the foregoing, upon request by the Selling Stockholders at
any time while the registration statement remains effective, it is our opinion
that the Shares have been registered for resale under the Act and new
certificates evidencing the Shares upon their transfer or re-registration by the
Selling Stockholders may be issued without restrictive legend. We will advise
you if the registration statement is not available or effective at any point in
the future.
Very truly yours,
[Company counsel]
A-1
SCHEDULE B
SELLING SHAREHOLDERS
QUESTIONNAIRE
GENERAL INFORMATION
QUESTION 1(A):
NAME: Please set forth the full name of the Selling Shareholder.
ANSWER:
QUESTION 1(B):
If the Selling Shareholder is not a natural person, please confirm that the
Selling Shareholder is one of the following:
- a reporting company under the Exchange Act
- a majority owned subsidiary of a reporting company under the Exchange Act,
- a registered investment fund under he 1940 Act.
Yes ___________ No ____________
QUESTION 1(C):
If the Selling Shareholder is not one of the three above, identify each officer,
director and 5% shareholder (including those persons that have voting and
investment control over the Company shares).
ANSWER:
QUESTION 1(D):
Is the Selling Shareholder an executive officer or director of the Company or 5%
or more holder of Company shares of common stock.
Yes ____________ No ______________
QUESTION 2:
FAMILY RELATIONSHIPS. If you have any family relationship, by blood, marriage or
adoption not more remote than first cousin, with any director, executive
officer, or nominee to become a director or executive officer of the Company,
its parent, any of its subsidiaries, or other affiliates, or any individual who
has been employed by the Company in the past three years as an executive
officer, please identify such relative and describe the nature of the
relationship.
ANSWER:
QUESTION 3:
Is the Selling Shareholder a broker dealer or a broker dealer's affiliate?
Yes ___ No ___
If a Selling Shareholder is a broker dealer, confirm the Selling Shareholder
acquired its securities as compensation for underwriting activities or
investment purposes.
Yes ___ No ___
B-1
If a Selling Shareholder is a broker dealer's affiliate, confirm that this
broker dealer's affiliate:
- purchased the securities to be resold in the ordinary course of
business; and
- had no agreements or understandings, directly or indirectly, with any
person to distribute the securities at the time of their purchase.
Yes ___ No ___
II
SECURITY OWNERSHIP
QUESTION 5: YOUR SECURITIES HOLDINGS.
(a) As to each class of equity securities of the Company, its parent
or any subsidiary, state the total number of shares or other units beneficially
owned by you as of the date hereof.
(ii) NUMBER OF SHARES
TITLE OF EQUITY SECURITY BENEFICIALLY OWNED
(Include warrant, options and convertible debt)
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--------------------------- --------------------------
--------------------------- --------------------------
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B-2
IF YOU LISTED ANY WARRANTS, OPTIONS, CONVERTIBLE DEBT OR OTHER DERIVATIVE
SECURITIES THAT ARE NOT FULLY VESTED, PLEASE SET FORTH THE VESTING SCHEDULE
BELOW.
Vesting Schedule(s):
(b) If, as a result of applying the rules regarding beneficial
ownership summarized in the Appendix to this Questionnaire, you have included in
the amount stated in answer to Question 5(a) above under "Number of Shares
Beneficially Owned" shares not issued in your name, please provide details as to
the nature of such beneficial ownership of such shares or other units and state
the amount of shares or units so owned;
ANSWER:
(c) If, as a result of applying the rules regarding beneficial
ownership summarized in the Appendix to this Questionnaire, you have excluded
from the amount stated in the answer to Question 5(a) above under "Number of
Shares Beneficially Owned" shares or units which are issued in your name, please
state the amount so excluded and explain why you are not the beneficial owner of
such shares or units.
ANSWER:
(d) Of the total number of shares or units beneficially owned by you,
as reported in answer to Question 5(a), indicate below the amounts as to which
you have sole or shared voting or investment power.
COMMON STOCK OTHER (I.E. WARRANTS,
OPTIONS OR
CONVERTIBLE DEBT)
Sole voting power ____________ _____________
Shared voting power ____________ _____________
Sole investment power ____________ _____________
Shared investment power ____________ _____________
(e) Set forth the date of purchase of your shares, warrants or convertible debt.
ANSWER:
(f) State the consideration paid for your purchase.
B-3
