REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT is made and entered into as of March
__, 2004 by and among Viseon, Inc., a Nevada corporation (the "Company"), and
each Purchaser who has entered into a Purchase Agreement (the "Purchase
Agreement") for the Offered Securities (as defined herein)(such Purchasers,
collectively the "Purchasers"). In order to induce the Purchasers to enter into
the Purchase Agreements, the Company has agreed to provide the registration
rights set forth in this Agreement. The execution of this Agreement is a
condition to the closing under the Purchase Agreements.
The Company agrees with the Purchasers, (i) for their benefit as
Purchasers and (ii) for the benefit of the beneficial owners (including the
Purchasers) from time to time of the Offered Securities (as defined herein) and
the beneficial owners from time to time of the Underlying Common Stock (as
defined herein) issued upon conversion of, or in payment of dividends on, the
Offered Securities (each of the foregoing a "Holder" and, together, the
"Holders"), as follows:
SECTION 1. Definitions. Capitalized terms used herein without
definition shall have their respective meanings set forth in the Purchase
Agreement. As used in this Agreement, the following terms shall have the
following meanings:
"Affiliate": With respect to any specified person, an "affiliate," as
defined in Rule 144, of such person.
"Amendment Effectiveness Deadline Date": See Section 2(d) hereof.
"Business Day": Each Monday, Tuesday, Wednesday, Thursday and Friday
that is not a day on which banking institutions in The City of New York are
authorized or obligated by law or executive order to close.
"Common Stock": The shares of common stock, $.01 par value, of the
Company including the Underlying Common Stock.
"Company": The Company shall have the meaning set forth in the first
paragraph of this Agreement and shall also include the Company's successors.
"Deferral Notice": See Section 3(i) hereof.
"Deferral Period": See Section 3(i) hereof.
"Effectiveness Deadline Date": See Section 2(a) hereof.
"Effectiveness Period": Commencing on the date that the Initial
Registration Statement is declared effective until the first to occur of (i) the
sale pursuant to a Registration Statement of the Common Stock receivable upon
conversion or exercise of all of the Offered Securities or (ii) the date that
holding period applicable to the Common Stock receivable upon conversion or
exercise of all Offered Securities held by the initial Purchasers that were not
Affiliates of the Company would have the expired under Rule 144(k) under the
Securities Act.
"Event": See Section 2(e) hereof.
"Event Date": See Section 2(e) hereof.
"Event Termination Date": See Section 2(e) hereof.
"Exchange Act": The Securities Exchange Act of 1934, as amended,
and the rules and regulations of the SEC promulgated thereunder.
"Excluded Shares": means any of: (i) shares of Common Stock issued or
issuable pursuant to the Company's Series A Convertible Preferred Stock, Series
A-I Warrants, or Series A-2 Warrants, specifically including all shares of
Common Stock which may be issued upon conversion or exercise thereof or which
may be issued as dividends thereon, (ii) shares of Common Stock issuable upon
the exercise of any options or warrants outstanding on the Issue Date and listed
in Schedule 3(b) of the Purchase Agreement, (iii) shares of Common Stock
issuable pursuant to or upon the conversion of any note, debenture, debt
instrument and all other written agreements to which the Company is a party on
the Issue Date and identified in Schedule 3(b) of the Purchase Agreement and
(iv) shares of Common Stock (including grants, options and warrants) issuable
pursuant to or in accordance with any plan for which the Company has filed a
registration statement that has been declared effective and identified in
Schedule 3(b) of the Purchase Agreement, including, without limitation, the 1994
Stock Plan and the Consultant Compensation Plan, or any other stock plan, option
plan or written agreements to which the Company is a party on the Issue Date and
identified in Schedule 3(b) of the Purchase Agreement.
"Filing Deadline Date": See Section 2(a) hereof.
"Holder": See the second paragraph of this Agreement.
"Initial Registration Statement": See Section 2(a) hereof.
"Issue Date": The date of the Initial Closing (as that term is defined
in the Purchase Agreements).
"Liquidated Damages Amount": See Section 2(e) hereof.
"Losses": See Section 6 hereof.
"Material Event": See Section 3(i) hereof.
"Offered Securities": The Series A Convertible Preferred Stock, the
Series A-1 Warrants, and the Series A-2 Warrants purchased pursuant to the
Purchase Agreements.
"Offering": The Offering identified in the Purchase Agreements.
"Prospectus": The prospectus included in any Registration Statement
(including, without limitation, a prospectus that discloses 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 amendment or prospectus supplement, including
post-effective amendments, and all materials incorporated by reference or
explicitly deemed to be incorporated by reference in such Prospectus.
"Purchase Agreements": See the first paragraph of this Agreement.
"Registrable Securities": The Underlying Common Stock and any
securities into or for which such Underlying Common Stock have been converted or
exchanged, and any security issued with respect thereto upon any stock dividend,
split or similar event until, in the case of any such security, (A) the earliest
of (i) its effective registration under the Securities Act and resale in
accordance with the Registration Statement covering it, (ii) expiration of the
holding period that would be applicable to the initial Purchaser under Rule
144(k) under the Securities Act if such Purchaser was not an Affiliate of the
Company or (iii) its sale to the public pursuant to Rule 144, and (B) as a
result of the event or circumstance described in any of the foregoing clauses
(i) through (iii), the legends with respect to transfer restrictions can be
removed.
"Registration Statement": Any registration statement of the Company
that covers any of the Registrable Securities pursuant to the provisions of this
Agreement including the Prospectus, amendments and supplements to such
registration statement, including post-effective amendments, all exhibits, and
all materials incorporated by reference or explicitly deemed to be incorporated
by reference in such registration statement.
"Restricted Securities": As this term is defined in Rule 144.
"Rule 144": Rule 144 under the Securities Act, as such Rule may be
amended from time to time, or any similar rule or regulation hereafter adopted
by the SEC.
"SEC": The Securities and Exchange Commission.
"Securities Act": The Securities Act of 1933, as amended, and the rules
and regulations promulgated by the SEC thereunder.
" Registration Statement": See Section 2(a) hereof.
"Subsequent Registration Statement": See Section 2(b) hereof.
"Underlying Common Stock": The Common Stock receivable upon
conversion or exercise of, or received as dividends on, the Offered Securities.
SECTION 2. Registration. (a) The Company shall prepare and file or
cause to be prepared and filed with the SEC, as soon as practicable but in any
event by the date (the "Filing Deadline Date") which is thirty (30) days after
the Final Closing, a Registration Statement for an offering to be made on a
delayed or continuous basis pursuant to Rule 415 of the Securities Act (a
"Registration Statement") registering the resale from time to time by Holders
thereof of all of the Registrable Securities, exclusive of any shares of Common
Stock that may be issued in payment of dividends (the "Initial Registration
Statement"). The Initial Registration Statement shall be on Form SB-2 or another
appropriate form permitting registration of such Registrable Securities for
resale by such Holders in accordance with the methods of distribution elected by
the Holders and set forth in the Initial Registration Statement. The Company
shall use its best efforts to cause the Initial Registration Statement to be
declared effective under the Securities Act as promptly as is practicable but in
any event by the date (the "Effectiveness Deadline Date") that is ninety (90)
days after the Initial Registration Statement is first filed with the SEC, and
to keep the Initial Registration Statement (or any Subsequent Registration
Statement (as that term is hereafter defined) continuously effective under the
Securities Act until the expiration of the Effectiveness Period. At the time the
Initial Registration Statement is declared effective, each Holder shall be named
as a selling securityholder in the Initial Registration Statement and the
related Prospectus in such a manner as to permit such Holder to deliver such
Prospectus to purchasers of Registrable Securities in accordance with applicable
law. Attached hereto as Schedule 2 is a complete list of all security holders
having the right to have their securities included in the Initial Registration
Statement and the amount of securities they have the right to include in the
Registration Statement. The Company shall not include any other securities in
the Initial Registration Statement other than the Offered Securities and the
securities identified in Schedule 2. The Company shall not file any other
registration statement [other than any update, extension, supplement or
continuation of a registration statement that is effective on the Final Closing
Date (as that term is defined in the Purchase Agreement)] under the Securities
Act with the SEC during the first ninety (90) day period after the SEC declares
the Initial Registration Statement effective.
(b) If the Initial Registration Statement or any Subsequent
Registration Statement ceases to be effective for any reason at any time during
the Effectiveness Period, the Company shall use its reasonable efforts to obtain
the prompt withdrawal of any order suspending the effectiveness thereof, and in
any event shall within thirty (30) days of such cessation of effectiveness amend
the Initial Registration Statement in a manner reasonably expected to obtain the
withdrawal of the order suspending the effectiveness thereof, or file an
additional Registration Statement covering all of the securities that as of the
date of such filing are Registrable Securities (a "Subsequent Registration
Statement"). If a Subsequent Registration Statement is filed, the Company shall
use reasonable efforts to cause the Subsequent Registration Statement to become
effective as promptly as is practicable after such filing and to keep such
Subsequent Registration Statement continuously effective until the end of the
Effectiveness Period.
(c) It shall be a condition precedent to the obligation of the
Company to include the Registrable Securities of any Holder in the Initial
Registration Statement or any Subsequent Registration Statement or Additional
Registration Statement that such Holder shall furnish to the Company at least
ten (10) days prior to the anticipated filing date such information regarding
itself, the Registrable Securities held by it, the intended method of
disposition of the Registrable Securities held by it, and all such other
information as shall be reasonably required to effect the registration of such
Registrable Securities. At least twenty (20) days prior to the first anticipated
filing date of any such Registration Statement, other than the Initial
Registration Statement for which the applicable period shall be 15 days, the
Company shall notify each Holder, at the most recent address previously provided
to the Company in writing, of the information the Company requires from each
such Holder for inclusion in such Registration Statement and the anticipated
filing date of such Registration Statement.
(d) At all times that fifty-one percent (51%) or more of the number
of shares of Series A Preferred Stock issued in the Offering have not been
converted and otherwise remain outstanding, the Company shall not pay any
dividend on the shares of Series A Preferred Stock in shares of its Common Stock
unless the on the relevant dividend payment date there is an effective
Registration Statement permitting the resale of the shares of Common Stock to be
issued in payment of such dividend (and in the absence of such an effective
Registration Statement, the dividend on the Shares of Series A Preferred Stock
shall be paid by the Company in cash). The Company shall use its best efforts to
cause any such Registration Statement filed to remain continuously effective
under the Securities Act for no less than one year following the dividend
payment date on which the Company issued, as a dividend payment, any shares of
Common Stock included in such Registration Statement. At any time that less than
fifty-one percent (51%) of the number of shares of Series A Preferred Stock
issued in the Offering remain outstanding, the Company may pay a dividend on the
shares of Series A Preferred Stock in shares of its Common Stock with out regard
to such shares being covered by an effective Registration Statement and the
Company may, but shall not be required, to file any Registration Statement
covering such shares.
(e) The Company shall supplement and amend the Registration
Statement if required by the rules, regulations or instructions applicable to
the registration form used by the Company for such Registration Statement, if
required by the Securities Act or, to the extent to which the Company does not
reasonably object, as reasonably requested by the registered Holders or by any
managing underwriter in the event of an underwritten offering.
(f) Each Holder of Registrable Securities agrees that if such
Holder wishes to sell Registrable Securities pursuant to a Registration
Statement and related Prospectus, it will do so only in accordance with Section
3(i). If the Company shall file a post-effective amendment to the Registration
Statement, it shall (i) use reasonable efforts to cause such post-effective
amendment to be declared effective under the Securities Act as promptly as is
practicable; (ii) provide such Holder copies of any documents filed in
connection with such post-effective amendment; and (iii) notify such Holder as
promptly as practicable after the effectiveness under the Securities Act of any
such post-effective amendment.
(g) From and after the date the Initial Registration Statement is
declared effective, the Company shall not be obligated to file any
post-effective amendment to the Registration Statement or supplement to the
related Prospectus to solely to reflect any sale or transfer of Registerable
Securities by an initial Purchaser (or any subsequent Holder included in a
Registration Statement filed by the Company pursuant to this Section 2(g) that
was not consummated pursuant to the plan of distribution set forth in such
Registration Statement, provided, however, in the event the Company intends to
voluntarily file or is required by applicable law to file with the SEC a
post-effective amendment to the Registration Statement or prepare and, if
required by applicable law, file a supplement to the related Prospectus or a
supplement or amendment to any document incorporated therein by reference, the
Company make such amendments to the Registration Statement as shall be necessary
to include the transferee of the Registrable Securities to be included as a
selling shareholder in the Registration Statement. It shall be a condition
precedent to the obligation of the Company to include such transferee Holder
that such Holder shall furnish to the Company such information regarding itself,
the Registrable Securities held by it, the intended method of disposition of the
Registrable Securities held by it, and all such other information as shall be
reasonably required to effect the registration of such Registrable Securities at
least ten (10) days prior to the anticipated filing date of a post-effective
amendment to the Registration Statement pursuant to this Section 2(g). The
Company shall notify each transferee Holder, that was previously disclosed to
the Company in writing together with a valid and current mailing address, of the
information the Company requires from each such Holder for inclusion in such
Registration Statement at least twenty (20) days prior to the anticipated filing
date of a post-effective amendment to the Registration Statement.
(h) The parties hereto agree that the Holders of Registrable
Securities will suffer damages, and that it would not be feasible to ascertain
the extent of such damages with precision, if (i) the Initial Registration
Statement has not been filed on or prior to the Filing Deadline Date, (ii) the
Initial Registration Statement has not been declared effective under the
Securities Act on or prior to the Effectiveness Deadline Date, (iii) the
aggregate duration of Deferral Periods in any period exceeds the number of days
permitted in respect of such period pursuant to Section 3(i) hereof, or (iv) the
failure of the Company to maintain a Registration Statement continually
effective after it is declared effective by the SEC for the full period required
by this Agreement for any reason other than set forth in clause (A), (B), or (C)
of Section 3(i).
Accordingly, the Company agrees to pay to each Holder, as liquidated
damages and not as a penalty, for each share of Series A Preferred Stock held by
such Holder and if previously converted, for each share of the Common Stock
received by such Holder upon the conversion of Series A Preferred Stock and held
by such Holder, the following amounts (the "Liquidated Damages"):
(i) If the Initial Registration Statement has not been filed on or
prior to the Filing Deadline Date, the Company shall pay, within five (5)
Business Days thereafter, an amount equal to (a) six hundred twenty five dollars
($625.00) for each issued and outstanding share of Series A Preferred Stock held
by any such Holder, and (b) if previously converted, two and one-half cents
($0.025) for each share of Common Stock received upon the conversion of Series A
Preferred Stock and held by such Holder. If the Initial Registration Statement
is filed on or prior the expiration of thirty days following the Filing Deadline
Date, the Company shall not be obligated to pay any additional Liquidated
Damages as a result thereof. However, if the Initial Registration Statement has
not been filed on or prior to the expiration of thirty days following the Filing
Deadline Date, Liquidated Damages shall be payable as a result of such failure
to file on or prior to such thirtieth day following the Filing Deadline Date and
for each full thirty (30) day period commencing on the thirtieth day following
the Filing Deadline Date through the date that the Initial Registration
Statement is actually filed, in an amount equal to (a) seven hundred fifty
dollars ($750.00) for each issued and outstanding share of Series A Preferred
Stock held by any such Holder and (b) if previously converted, three cents
($0.03) for each share of Common Stock received upon the conversion of Series A
Preferred Stock and held by such Holder., payable within five (5) Business Days
after the expiration of each such thirty (30) day period, and each thirty day
period that expires following thereafter. As soon as the Company files the
Initial Registration Statement, the Company shall not be obligated to pay any
additional Liquidated Damages as a result thereof.
(ii) Following the date that the Initial Registration Statement is
filed by the Company, if the Initial Registration Statement has not been
declared effective by the SEC on or prior to the Effectiveness Deadline Date,
the Company shall pay, within five (5) Business Days thereafter, an amount equal
to (a) six hundred twenty five dollars ($625.00) for each issued and outstanding
share of Series A Preferred Stock held by any such Holder and (b) if previously
converted, two and one-half cents ($0.025) for each share of Common Stock
received upon the conversion of Series A Preferred Stock and held by such
Holder. If the Initial Registration Statement is declared effective under the
Securities Act on or prior to the expiration of thirty days following the
Effectiveness Deadline Date, the Company shall not be obligated to pay any
additional Liquidated Damages as a result thereof. However, if the Initial
Registration Statement has not been declared effective by the SEC on or prior to
the expiration of thirty days following the Effectiveness Deadline Date,
Liquidated Damages shall be payable as a result of such failure to go effective
on or before such thirtieth day following the Effectiveness Deadline Date and
for each full thirty (30) day period commencing on the thirtieth day following
the Effectiveness Deadline Date through the date that the Initial Registration
Statement is actually declared effective by the SEC, in an amount equal to (a)
seven hundred fifty dollars ($750.00) for each issued and outstanding share of
Series A Preferred Stock held by any such Holder and (b) if previously
converted, three cents ($0.03) for each share of Common Stock received upon the
conversion of Series A Preferred Stock and held by such Holder, payable within
five (5) Business Days after the expiration of each such thirty (30) day period.
Upon the Initial Registration Statement being declared effective by the SEC, the
Company shall not be obligated to pay any additional Liquidated Damages as a
result thereof.
(iii) In the event that the aggregate duration of all such Deferral
Periods under Section 3(i) exceeds thirty (30) days in any twelve (12) month
period, within five (5) Business Days following the day that results in
aggregate Deferral Period exceeding such thirty (30) days in any twelve (12)
month period the Company shall pay to the Holders of each issued and outstanding
share of Series A Preferred Stock and, if previously converted, the Common Stock
received upon the conversion thereof, Liquidated Damages in an amount equal to
(a) six hundred twenty five dollars ($625.00) for each issued and outstanding
share of Series A Preferred Stock held by any such Holder, and (b) if previously
converted, two and one-half cents ($0.025) for each share of Common Stock
received upon the conversion of Series A Preferred Stock and held by such
Holder. Such Liquidated Damages are payable only on the first occurrence of any
aggregate Deferral Period exceeding thirty (30) days in any twelve (12) month
period. Thereafter, upon the expiration of each full thirty (30) day Deferral
Period commencing on the day that results in aggregate Deferral Periods
exceeding thirty (30) days in any 12-month period, the Company shall pay an
amount equal to (a) seven hundred fifty dollars ($750.00) for each issued and
outstanding share of Series A Preferred Stock held by any such Holder, and (b)
if previously converted, three cents ($0.03) for each share of Common Stock
received upon the conversion of Series A Preferred Stock and held by such
Holder.
(iv) In the event of the failure of the Company to maintain a
Registration Statement continually effective after it is declared effective by
the SEC for the full period required by this Agreement for any reason other than
set forth in clause (A), (B), or (C) of Section 3(i) (the "Company Failure"),
the Company shall pay to the Holders of each issued and outstanding share of
Series A Preferred Stock and, if previously converted, the Common Stock received
upon the conversion thereof for which the Company has a continuing obligation to
cause an effective Registration Statement to remain continuously effective.
Liquidated Damages in an amount equal to (a) six hundred twenty five dollars
($625.00) for each issued and outstanding share of Series A Preferred Stock held
by any such Holder and (b) if previously converted, two and one-half cents
($0.025) for each share of Common Stock received upon the conversion of Series A
Preferred Stock and held by such Holder. For each full thirty (30) day period
that the Registration Statement is not effective due to a Company Failure, the
Company shall pay an amount equal to (a) seven hundred fifty dollars ($750.00)
for each issued and outstanding share of Series A Preferred Stock held by any
such Holder and (b) if previously converted, three cents ($0.03) for each share
of Common Stock received upon the conversion of Series A Preferred Stock and
held by such Holder.
Liquidated Damages shall be paid only to the then current Holders of
issued and outstanding shares of Series A Preferred Stock (or Common Stock
received by such Holders upon the conversion of such Series A Preferred Stock)
at the time of the occurrence giving rise to the obligation of the Company to
pay such Liquidated Damages and shall be payable thereon until such time as,
with respect to any such share, the Company is not required to (i) file a
Registration Statement or (ii) cause an effective Registration Statement to
remain continuously effective. No Liquidated Damages shall be payable on the
Series A-1 Warrants, Series A-2 Warrants or dividends paid or payable in Common
Stock. No Liquidated Damages shall be payable with respect to any share of
Series A Preferred Stock for any period during which the Company does not have
an obligation, with respect to any shares of Common Stock receivable upon
conversion of such shares of Series A Preferred Stock, to (i) file a
Registration Statement or (ii) cause an effective Registration Statement to
remain continuously effective. No Liquidated Damages shall be payable with
respect to any share of Common Stock received upon conversion of the Series A
Preferred Stock for any period during which the Company does not have an
obligation, with respect to any such share of Common Stock, to (i) file a
Registration Statement or (ii) cause an effective Registration Statement to
remain continuously effective. All Liquidated Damages shall be payable in cash,
upon demand, following the date when due.
The parties hereto agree that the liquidated damages provided for in
this Section 2(h) constitute a reasonable estimate of the damages that may be
incurred by Holders of Registrable Securities by reason of the failure of the
Initial Registration Statement to be filed or declared effective or available
for effecting resales of Registrable Securities in accordance with the
provisions hereof. However, the Liquidated Damages are not intended by the
parties to be, and shall not be, the Holders' exclusive remedy in the event of
the occurrence of any of the events described hereinabove.
SECTION 3. Registration Procedures. In connection with the registration
obligations of the Company under Section 2 hereof, the Company shall:
(a) Before filing any Registration Statement or Prospectus or
any amendments or supplements thereto with the SEC, furnish to the Purchasers
copies of all such documents proposed to be filed no later than three (3)
Business Days prior to the day that each such document is filed.
(b) Prepare and file with the SEC such amendments and
post-effective amendments to each Registration Statement as may be necessary to
keep such Registration Statement continuously effective for the applicable
period specified in Section 2(a); cause the related Prospectus to be
supplemented by any required Prospectus supplement, and as so supplemented to be
filed pursuant to Rule 424 (or any similar provisions then in force) under the
Securities Act; and comply with the provisions of the Securities Act applicable
to it with respect to the disposition of all securities covered by such
Registration Statement during the Effectiveness Period in accordance with the
intended methods of disposition by the sellers thereof set forth in such
Registration Statement as so amended or such Prospectus as so supplemented.
(c) As promptly as practicable (i) give notice to the Holders
when any Prospectus, Prospectus supplement, Registration Statement or
post-effective amendment to a Registration Statement has been filed with the SEC
and, with respect to a Registration Statement or any post-effective amendment,
when the same has been declared effective and (ii) give notice to the Holders
(A) of any request, following the effectiveness of the Initial Registration
Statement under the Securities Act, by the SEC or any other federal or state
governmental authority for amendments or supplements to any Registration
Statement or related Prospectus or for additional information, (B) of the
issuance by the SEC or any other federal or state governmental authority of any
stop order suspending the effectiveness of any Registration Statement or the
initiation or threatening of any proceedings for that purpose, (C) 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, (D) of the occurrence of (but not the nature of or
details concerning) a Material Event and (E) of the determination by the Company
that a post-effective amendment to a Registration Statement will be filed with
the SEC, which notice may, at the discretion of the Company [or as required
pursuant to Section 3(i)], state that it constitutes a Deferral Notice, in which
event the provisions of Section 3(i) shall apply.
(d) Use reasonable efforts to obtain the withdrawal of any
order suspending the effectiveness of a Registration Statement or the lifting of
any suspension of the qualification (or exemption from qualification) of any of
the Registrable Securities for sale in any jurisdiction in which they have been
qualified for sale, in either case at the earliest possible moment.
(e) If reasonably requested by any Holder, as promptly as
practicable incorporate in a Prospectus supplement or post-effective amendment
to a Registration Statement such information as such Holder shall, on the basis
of an opinion of nationally recognized counsel experienced in such matters,
determine to be required to be included therein and make any required filings of
such Prospectus supplement or such post-effective amendment; provided, that the
Company shall not be required to take any actions under this Section 3(e) that
are not, in the reasonable opinion of counsel for the Company, in compliance
with applicable law.
(f) As promptly as practicable furnish to each Holder (when
requested in writing by such Holder), without charge, at least one (1) conformed
copy of the Registration Statement and any amendment thereto, including
financial statements but excluding schedules, all documents incorporated or
deemed to be incorporated therein by reference and all exhibits (unless
requested in writing to the Company by such Holder).
(g) During the Effectiveness Period, deliver to each Holder in
connection with any sale of Registrable Securities pursuant to a Registration
Statement, without charge, as many copies of the Prospectus or Prospectuses
relating to such Registrable Securities (including each preliminary prospectus)
and any amendment or supplement thereto as such Holder may reasonably request;
and the Company hereby consents (except during such periods that a Deferral
Notice is outstanding and has not been revoked) to the use of such Prospectus or
each amendment or supplement thereto by each Holder in connection with any
offering and sale of the Registrable Securities covered by such Prospectus or
any amendment or supplement thereto conducted in compliance with all securities
laws then in effect at the time of such offering or sale in the manner set forth
therein.
(h) Prior to any public offering of the Registrable Securities
pursuant to a Registration Statement, register or qualify or cooperate with the
Holders in connection with the registration or qualification (or exemption from
such registration or qualification) of such Registrable Securities for offer and
sale under the securities or Blue Sky laws of such jurisdictions within the
United States as any Holder reasonably requests in writing; prior to any public
offering of the Registrable Securities pursuant to a Registration Statement,
keep each such registration or qualification (or exemption therefrom) effective
during the Effectiveness Period in connection with such Holder's offer and sale
of Registrable Securities pursuant to such registration or qualification (or
exemption therefrom) and do any and all other acts or things necessary or
advisable to enable the disposition in such jurisdictions of such Registrable
Securities in the manner set forth in the relevant Registration Statement and
the related Prospectus; provided, that the Company will not be required to (i)
qualify as a foreign corporation or as a dealer in securities in any
jurisdiction where it would not otherwise be required to qualify but for this
Agreement or (ii) take any action that would subject it to general service of
process in suits or to taxation in any such jurisdiction where it is not then so
subject.
(i) Upon (A) the issuance by the SEC of a stop order
suspending the effectiveness of a
Registration Statement or the initiation of proceedings with respect to a
Registration Statement under Section 8(d) or 8(e) of the Securities Act, (B) the
occurrence of any event or the existence of any fact (a "Material Event") as a
result of which any Registration Statement shall 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 not misleading, or any Prospectus
shall contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading, or (C) the occurrence or existence of any pending corporate
development, public filing with the SEC or other similar event with respect to
the Company that, in the reasonable discretion of the Company, makes it
appropriate to suspend the availability of a Registration Statement and the
related Prospectus, (i) in the case of clause (B) above, subject to the next
sentence, as promptly as practicable prepare and file, if necessary pursuant to
applicable law, a post-effective amendment to such Registration Statement or a
supplement to the related Prospectus or any document incorporated therein by
reference or file any other required document that would be incorporated by
reference into such Registration Statement and Prospectus so that such
Registration Statement does 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 not misleading, and such Prospectus does not contain
any untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements therein, in
the light of the circumstances under which they were made, not misleading, and,
in the case of a post-effective amendment to a Registration Statement, subject
to the next sentence, use its best efforts to cause it to be declared effective
as promptly as is practicable, and (ii) give notice to the Holders that the
availability of the Registration Statement is suspended (a "Deferral Notice")
and, upon receipt of any Deferral Notice, each Holder agrees not to sell any
Registrable Securities pursuant to the Registration Statement until such
Holder's receipt of copies of the supplemented or amended Prospectus provided
for in clause (i) above, or until it is advised in writing by the Company that
the Prospectus may be used, and has received copies of any additional or
supplemental filings that are incorporated or deemed incorporated by reference
in such Prospectus. The Company will use its best efforts to ensure that the use
of the Prospectus may be resumed (x) in the case of clause (A) above, as
promptly as is practicable, (y) in the case of clause (B) above, as soon as, in
the sole judgment of the Company, public disclosure of such Material Event would
not be prejudicial to or contrary to the interests of the Company or, if
necessary to avoid unreasonable burden or expense, as soon as practicable
thereafter and (z) in the case of clause (C) above, as soon as, in the
discretion of the Company, such suspension is no longer appropriate. The Company
shall be entitled to exercise its right under this Section 3(i) to suspend the
availability of the Registration Statement or any Prospectus, without incurring
or accruing any obligation to pay liquidated damages pursuant to Section 2(e),
for one or more periods not to exceed 30 days in any 12-month period (such
period, during which the availability of the Registration Statement and any
Prospectus is suspended being a "Deferral Period").
(j) Use its best efforts to comply with all applicable rules
and regulations of the SEC and make generally available to its securityholders
earning statements (which need not be audited) satisfying the provisions of
Section 11(a) of the Securities Act and Rule 158 thereunder (or any similar rule
promulgated under the Securities Act) no later than forty-five (45) days after
the end of any three (3) month period (or ninety (90) days after the end of any
twelve (12) month period if such period is a fiscal year) commencing on the
first day of the first fiscal quarter of the Company commencing after the
effective date of a Registration Statement, which statements shall cover said
periods.
(k) Cooperate with each Holder to facilitate the timely
preparation and delivery of certificates representing Registrable Securities
sold or to be sold pursuant to a Registration Statement, which certificates
shall not bear any restrictive legends, and cause such Registrable Securities to
be in such names as such Holder may request in writing at least two (2) Business
Days prior to any sale of such Registrable Securities.
(l) Provide a CUSIP number for all Registrable Securities
covered by each Registration Statement not later than the effective date of such
Registration Statement and provide the Holders with printed certificates for the
Registrable Securities that are in a form eligible for deposit with The
Depository Trust Company.
(m) Use its best efforts to cause the Underlying Common Stock
to be listed on any securities exchange or any automated quotation system on
which similar securities issued by the Company are then listed, to the extent
the Underlying Common Stock satisfies applicable listing requirements.
(n) Provide such information as is required for any filings
required to be made with the National Association of Securities Dealers, Inc.
SECTION 4. Holder's Obligations. Each Holder agrees, by acquisition of
the Registrable Securities, promptly to furnish to the Company all information
required to be disclosed in order to make the information previously furnished
to the Company by such Holder not misleading and any other information regarding
such Holder and the distribution of such Registrable Securities as the Company
may from time to time reasonably request. Any sale of any Registrable Securities
by any Holder shall constitute a representation and warranty by such Holder that
the information relating to such Holder and its plan of distribution is as set
forth in the Prospectus delivered by such Holder in connection with such
disposition, that such Prospectus does not as of the time of such sale contain
any untrue statement of a material fact relating to or provided by such Holder
or its plan of distribution and that such Prospectus does not as of the time of
such sale omit to state any material fact relating to or provided by such Holder
or its plan of distribution necessary to make the statements in such Prospectus,
in the light of the circumstances under which they were made, not misleading.
SECTION 5. Registration Expenses. The Company shall bear all fees and
expenses incurred in connection with the performance by the Company of its
obligations under this Agreement whether or not any of the Registration
Statements are declared effective. Such fees and expenses shall include, without
limitation, (i) all registration and filing fees (including, without limitation,
fees and expenses (x) with respect to filings required to be made with the
National Association of Securities Dealers, Inc. and (y) of compliance with
federal and state securities or Blue Sky laws (including, without limitation,
reasonable fees and disbursements of the counsel specified in the next sentence
in connection with Blue Sky qualifications of the Registrable Securities under
the laws of such jurisdiction as are designated by the Holders of a majority of
the Registrable Securities being sold pursuant to a Registration Statement, (ii)
printing expenses (including, without limitation, expenses of printing
certificates for Registrable Securities in a form eligible for deposit with The
Depository Trust Company), (iii) duplication expenses relating to one copy of
each Registration Statement or Prospectus delivered to any Holders hereunder,
(iv) fees and disbursements of counsel for the Company in connection with the
Registration Statement, (v) the fees and disbursements of the independent public
accountants of the Company, including the expenses of any special audits or
"cold comfort" letters required by or incident to such performance and
compliance, (vi) reasonable fees and disbursements of the transfer agent for the
Common Stock and its counsel and (vii) Securities Act liability insurance, if
any, obtained by the Company in its sole discretion. The Company shall bear or
reimburse the Holders for the reasonable fees and disbursements of one firm of
legal counsel for the Holders, not to exceed five thousand dollars (exclusive of
any filing fees) in connection with services rendered for the benefit of the
Holders in connection with subsection 5(i)(y) hereinabove. In addition, the
Company shall pay the internal expenses of the Company (including, without
limitation, all salaries and expenses of officers and employees performing legal
or accounting duties), the expense of any annual audit, the fees and expenses
incurred in connection with the listing of the Registrable Securities on any
securities exchange on which similar securities of the Company are then listed
and the fees and expenses of any person, including special experts, retained by
the Company. All underwriting discounts and selling commissions resulting from
the sale of any Registrable Securities by a Holder shall be borne by the selling
Holder incurring the same.
SECTION 6. Indemnification.
---------------
(a) Indemnification by the Company. The Company shall
indemnify and hold harmless each Holder and each person, if any, who controls
any Holder (within the meaning of either Section 15 of the Securities Act or
Section 20 of the Exchange Act) from and against any losses, liabilities,
claims, damages and expenses (including, without limitation, any legal or other
expenses reasonably incurred in connection with defending or investigating any
such action or claim) (collectively, "Losses"), arising out of or based upon any
untrue statement or alleged untrue statement of a material fact contained in any
Registration Statement or Prospectus or in any amendment or supplement thereto
or in any preliminary prospectus, or arising out of or based upon any omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, provided,
however, that the Company shall not be liable in any such case to the extent
that any such Losses arise out of or are based upon an untrue statement or
alleged untrue statement contained in or omission or alleged omission from any
of such documents in reliance upon and conformity with any of the information
relating to the Holders furnished to the Company in writing by a Holder
expressly for use therein; provided further that the indemnification contained
in this paragraph shall not inure to the benefit of any Holder of Registrable
Securities (or to the benefit of any person controlling such Holder) on account
of any such Losses arising out of or based upon an untrue statement or alleged
untrue statement or omission or alleged omission made in any preliminary
prospectus provided in each case the Company has complied with its several
obligations under Section 3(a) hereof if either (A) (i) such Holder failed to
send or deliver a copy of the Prospectus with or prior to the delivery of
written confirmation of the sale by such Holder to the person asserting the
claim from which such Losses arise and (ii) the Prospectus would have corrected
such untrue statement or alleged untrue statement or such omission or alleged
omission, or (B) (x) such untrue statement or alleged untrue statement, omission
or alleged omission is corrected in an amendment or supplement to the Prospectus
and (y) having previously been furnished by or on behalf of the Company with
copies of the Prospectus as so amended or supplemented, such Holder thereafter
fails to deliver such Prospectus as so amended or supplemented, with or prior to
the delivery of written confirmation of the sale of a Registrable Security to
the person asserting the claim from which such Losses arise.
(b) Indemnification by Holders of Registrable Securities.
Each Holder agrees severally but not jointly to indemnify and hold harmless the
Company and its respective directors and officers, and each person, if any, who
controls the Company (within the meaning of either Section 15 of the Securities
Act or Section 20 of the Exchange Act) from and against all Losses arising out
of or based upon any untrue statement or alleged untrue statement of a material
fact contained in any Registration Statement or Prospectus or in any amendment
or supplement thereto or in any preliminary prospectus, or arising out of or
based upon any omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, in light of the circumstances under which they were made, provided
that any such Loss arises out of, or is based upon, an untrue statement or
alleged untrue statement or omission or alleged omission in the information
furnished to the Company in writing by such Holder or such Holder's
representative expressly for use in such Registration Statement or Prospectus or
amendment or supplement thereto. In no event shall the liability of any selling
Holder of Registrable Securities hereunder be in excess of the amount that is
the aggregate total of (i) the dollar amount of the proceeds received by such
Holder upon the sale of the Registrable Securities pursuant to a Registration
Statement giving rise to such indemnification obligation plus (ii) fifty cents
for each share of Common Stock that was covered by the Registration Statement
giving rise to such Holder's indemnification obligation under this Section 6(b)
(whether issued and outstanding shares of Common Stock or Common Stock that may
be issued upon conversion, exercise or exchange of such Holder's Registerable
Securities) and was not sold pursuant to such Registration Statement.
(c) Conduct of Indemnification Proceedings. In case any
proceeding (including any
governmental investigation) shall be instituted involving any person in respect
of which indemnity may be sought pursuant to either Section 6(a) or 6(b), such
person (the "indemnified party") shall promptly notify the person against whom
such indemnity may be sought (the "indemnifying party") in writing and the
indemnifying party, upon request of the indemnified party, shall retain counsel
reasonably satisfactory to the indemnified party to represent the indemnified
party and any others the indemnifying party may designate in such proceeding and
shall pay the reasonable fees and disbursements of such counsel related to such
proceeding. In any such proceeding, any indemnified party shall have the right
to retain its own counsel, but the fees and expenses of such counsel shall be at
the expense of such indemnified party unless (i) the indemnifying party and the
indemnified party shall have mutually agreed to the retention of such counsel or
(ii) the named parties to any such proceeding (including any impleaded parties)
include both the indemnifying party and the indemnified party and representation
of both parties by the same counsel would be inappropriate due to actual or
potential differing interests between them. It is understood that the
indemnifying party shall not, in respect of the legal expenses of any
indemnified party in connection with any proceeding or related proceedings in
the same jurisdiction, be liable for the fees and expenses of more than one
separate firm (in addition to any local counsel) for all indemnified parties,
and that all such fees and expenses shall be reimbursed as they are incurred.
Such separate firm shall be designated in writing by, in the case of parties
indemnified pursuant to Section 6(a), the Holders of a majority of the
Registrable Securities covered by the Registration Statement held by Holders
that are indemnified parties pursuant to Section 6(a) and, in the case of
parties indemnified pursuant to Section 6(b), the Company. The indemnifying
party shall not be liable for any settlement of any proceeding effected without
its written consent, but if settled with such consent or if there be a final
judgment for the plaintiff, the indemnifying party agrees to indemnify the
indemnified party from and against any loss or liability by reason of such
settlement or judgment. No indemnifying party shall, without the prior written
consent of the indemnified party, effect any settlement of any pending or
threatened proceeding in respect of which any indemnified party is or could have
been a party and indemnity could have been sought hereunder by such indemnified
party, unless such settlement includes an unconditional release of such
indemnified party from all liability on claims that are the subject matter of
such proceeding.
(d) Contribution. To the extent that the indemnification
provided for in this Section 6
is unavailable to an indemnified party under Section 6(a) or 6(b) hereof in
respect of any Losses or is insufficient to hold such indemnified party
harmless, then each applicable indemnifying party, in lieu of indemnifying such
indemnified party, shall contribute to the amount paid or payable by such
indemnified party as a result of such Losses (i) in such proportion as is
appropriate to reflect the relative benefits received by the indemnifying party
or parties on the one hand and the indemnified party or parties on the other
hand or (ii) if the allocation provided in clause (i) above is not permitted by
applicable law, in such proportion as is appropriate to reflect not only the
relative benefits referred to in clause (i) above but also to the relative fault
of the indemnifying party or parties on the one hand and of the indemnified
party or parties on the other hand in connection with the statements or
omissions that resulted in such Losses, as well as any other relevant equitable
considerations. Benefits received by the Company shall be deemed to be equal to
the total net proceeds from the initial placement pursuant to the Purchase
Agreement (before deducting expenses) of the Registrable Securities to which
such Losses relate. Benefits received by any Holder shall be deemed to be equal
to the value of receiving Registrable Securities that are registered under the
Securities Act. The relative fault of the Holders on the one hand and the
Company on the other hand shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Holders or by the Company, and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission. The Holders' respective obligations to contribute
pursuant to this paragraph are several in proportion to the respective number of
Registrable Securities held by them that were included in any such Registration
Statement, and not joint.
The parties hereto agree that it would not be just and
equitable if contribution pursuant to this Section 6(d) were determined by pro
rata allocation or by any other method or allocation that does not take into
account the equitable considerations referred to in the immediately preceding
paragraph. The amount paid or payable by an indemnified party as a result of the
Losses referred to in the immediately preceding paragraph shall be deemed to
include, subject to the limitations set forth above, any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating
or defending any such action or claim. Notwithstanding this Section 6(d), an
indemnifying party that is a selling Holder of Registrable Securities shall not
be required to contribute any amount in excess of the amount by which the then
current market price of the Registerable Securities sold by such indemnifying
party and distributed to the public were offered to the public exceeds the
amount of any damages that such indemnifying party has otherwise been required
to pay by reason of such untrue or alleged untrue statement or omission or
alleged omission. No person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation.
(e) The indemnity, contribution and expense reimbursement
obligations of the parties
hereunder shall be in addition to any liability any indemnified party may
otherwise have hereunder, under the Purchase Agreement or otherwise.
(f) The indemnity and contribution provisions contained
in this Section 6 shall remain
operative and in full force and effect regardless of (i) any termination of this
Agreement, (ii) any investigation made by or on behalf of any Holder or any
person controlling any Holder, or the Company, or the Company's officers or
directors or any person controlling the Company and (iii) the sale of any
Registrable Securities by any Holder.
SECTION 7. Information Requirements. The Company covenants that,
if at any time before the end of the Effectiveness Period the Company is not
subject to the reporting requirements of the Exchange Act, it will cooperate
with any Holder of Registrable Securities and take such further reasonable
action as any Holder of Registrable Securities may reasonably request in writing
(including, without limitation, making such reasonable representations as any
such Holder may reasonably request), all to the extent required from time to
time to enable such Holder to sell Registrable Securities without registration
under the Securities Act within the limitation of the exemptions provided by
Rule 144 and Rule 144A under the Securities Act and customarily taken in
connection with sales pursuant to such exemptions. Upon the written request of
any Holder of Registrable Securities, the Company shall deliver to such Holder a
written statement as to whether it has complied with such filing requirements,
unless such a statement has been included in the Company's most recent report
filed pursuant to Section 13 or Section 15(d) of Exchange Act. Notwithstanding
the foregoing, nothing in this Section 7 shall be deemed to require the Company
to register any of its securities (other than the Common Stock) under any
section of the Exchange Act.
SECTION 8. Miscellaneous.
-------------
(a) No Conflicting Agreements. The Company may be, as of the
date hereof, but shall not be as of the Initial Closing Date under the Purchase
Agreement a party to, nor shall it, on or after the date of this Agreement,
enter into, any agreement with respect to its securities that conflicts with, or
provides registration rights superior to, the rights granted to the Holders of
Registrable Securities in this Agreement. The Company represents and warrants
that the rights granted to the Holders of Registrable Securities hereunder do
not in any way conflict with the rights granted to the holders of the Company's
securities under any other agreements.
(b) 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 Company has obtained the written consent of Holders
of a majority of the then outstanding Underlying Common Stock constituting
Registrable Securities (with Holders of the Series A Preferred Stock and
warrants deemed to be the Holders, for purposes of this Section, of the number
of outstanding shares of Common Stock into which such shares of Series A
Preferred Stock or warrants are or would be convertible or exercisable as of the
date on which such consent is requested). 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 Holders of Registrable Securities
whose securities are being sold pursuant to a Registration Statement and that
does not directly or indirectly affect the rights of other Holders of
Registrable Securities may be given by Holders of at least a majority of the
Registrable Securities being sold by such Holders pursuant to such Registration
Statement; provided, that the provisions of this sentence may not be amended,
modified, or supplemented except in accordance with the provisions of the
immediately preceding sentence. Each Holder of Registrable Securities
outstanding at the time of any such amendment, modification, supplement, waiver
or consent or thereafter shall be bound by any such amendment, modification,
supplement, waiver or consent effected pursuant to this Section 8(b), whether or
not any notice, writing or marking indicating such amendment, modification,
supplement, waiver or consent appears on the Registrable Securities or is
delivered to such Holder.
(c) Notices. All notices and other communications provided for
or permitted hereunder shall he made in writing by hand delivery, by telecopier,
by courier guaranteeing overnight delivery or by first-class mail, return
receipt requested, and shall be deemed given (i) when made, if made by hand
delivery, (ii) upon confirmation, if made by telecopier, (iii) one (1) Business
Day after being deposited with such courier, if made by overnight courier or
(iv) on the date indicated on the notice of receipt, if made by first-class
mail, to the parties as follows:
(1) if to a Purchaser, to the address for such
Purchaser set forth in the
signature pages of this Agreement;
(2) if to another Holder, at the most current
address given by such Holder to the Company
in its notice given to the Company;
(3) if to the Company, to:
Viseon, Inc.
Attn: President
0000 Xxxxxxxx Xxxxxxx, Xxxxx 000
Xxxxxx, XX 00000
With a copy to:
Xxxxxx X. Xxxxx, Xx.
Law Offices of Xxxxxx X. Xxxxx, Xx.
00000 X. Xxxxxx Xxxxxxx, Xxxxx 000
Xxxxxxx, Xxxxx 00000
Facsimile: 000-000-0000
or to such other address as such person may have furnished to the other persons
identified in this Section 8(c) in writing in accordance herewith.
(d) Approval of Holders. Whenever the consent or approval of
Holders of a specified percentage of Registrable Securities is required
hereunder, Registrable Securities held by the Company or its affiliates (as such
term is defined in Rule 405 under the Securities Act) shall not be counted in
determining whether such consent or approval was given by the Holders of such
required percentage.
(e) Successors and Assigns. Any person who purchases any
Registrable Securities from any
of the Purchasers shall be deemed, for purposes of this Agreement, to be an
assignee of the such Purchaser. This Agreement shall inure to the benefit of and
be binding upon the successors and assigns of each of the parties and shall
inure to the benefit of and be binding upon each Holder of any Registrable
Securities.
(f) Counterparts. This Agreement may be executed in any
number of counterparts and by the
parties hereto in separate counterparts, each of which when so executed shall be
deemed to be original and all of which taken together shall constitute one and
the same agreement.
(g) Headings. The headings in this Agreement are for
convenience of reference only and
shall not limit or otherwise affect the meaning hereof.
(h) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK.
(i) Severability. If any term provision, covenant or
restriction of this Agreement is
held 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
thereby, and the parties hereto shall use their best 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 being
intended that all of the rights and privileges of the parties shall be
enforceable to the fullest extent permitted by law.
(j) Entire Agreement. This Agreement is intended by the
parties as a final expression of
their agreement and is intended to be a complete and exclusive statement of the
agreement and understanding of the parties hereto in respect of the subject
matter contained herein and the registration rights granted by the Company with
respect to the Registrable Securities. Except as provided in the Purchase
Agreement, there are no restrictions, promises, warranties or undertakings,
other than those set forth or referred to herein, with respect to the
registration rights granted by the Company with respect to the Registrable
Securities. This Agreement supersedes all prior agreements and undertakings
among the parties with respect to such registration rights. No party hereto
shall have any rights, duties or obligations other than those specifically set
forth in this Agreement.
(k) Termination. This Agreement and the obligations of
the parties hereunder shall
terminate upon the end of the Effectiveness Period, except for any liabilities
or obligations under Section 5 or 6 hereof and the obligations to make payments
of any Liquidated Damages under Section 2(h) hereof to the extent such damages
accrue prior to the end of the Effectiveness Period, each of which shall remain
in effect in accordance with its terms.
IN WITNESS WHEREOF, the parties have executed this Agreement
as of the date first written above.
VISEON, INC.
By: ____________________________
Xxxx Xxxxxx, President
-------------------------------
NAME OF PURCHASER
By: ____________________________
Title:
Address of Purchaser:
