REGISTRATION RIGHTS AGREEMENT
-----------------------------
AGREEMENT dated as of the 13 day of September, 2004 between the person
whose name appears below (the "Investor"), and Environmental Solutions Worldwide
Inc., a Florida corporation having its principal executive office at ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ (the "Company").
WHEREAS, the Company has issued and sold certain (I) Debentures and (2)
Warrants convertible or exercisable, as the case may be, in each case into
shares of Common Stock of the Company, par value $0.001 (the "Common Stock"),
pursuant to a Securities Subscription Agreement, dated as of September 13, 2004
(the "Subscription Agreement"), between the Investor and the Company.
WHEREAS, the Company desires to grant to the Investor the registration
rights set forth herein with respect to the shares of Common Stock issuable upon
conversion of the Debentures and the shares of Common Stock issuable upon
exercise of the Warrants:
NOW, THEREFORE, the parties hereto mutually agree as follows:
I. Registrable Securities. As used herein the term
"Registrable Security" means any shares of Common Stock U) issued
or issuable in connection with the exercise or conversion, as
applicable, of any Warrants or Debentures issued to the Investor
and (ii) issued or issuable with respect to the securities
referred to in clause (ii) above by virtue of any stock split,
combination, stock dividend, merger, consolidation or other
similar event; provided, however, that with respect to any
particular Registrable Security, such security shall cease to be
a Registrable Security when as of the date of determination, (i)
it has been effectively registered under the Securities Act of
1933, as amended (the "Securities Act"), and disposed of pursuant
thereto, or (ii) registration under the Securities Act is no
longer required by the Investor for the distribution or
disposition of all of the Registrable Securities beneficially
owned by such Investor. The term "Registrable Securities" means
any and/or all of the securities falling within the foregoing
definition of a "Registrable Security."
2. Registration. The Company agrees to use its best efforts
to file a registration statement (a "Registration Statement")
with the Securities and Exchange Commission (the "Commission')
within 120 days of the closing date of the transactions
contemplated by the Subscription Agreement in order to register
the resale of the Registrable Securities under the Securities
Act. Once effective, the Company will be required to maintain the
effectiveness of the Registration Statement until the earlier of
(i) the date that all of the Registrable Securities have been
sold, or (ii) the date that the Company receives an opinion of
counsel to the Investor that all of the Registrable Securities
may be freely distributed, sold or otherwise disposed of without
registration under the Securities Act pursuant to Rule 144(k) (or
any similar provision then in force) promulgated under the
Securities Act.
3. Covenants of the Company With Respect to Registration. The
Company covenants and agrees as follows:
(a) In connection with any registration filed pursuant hereto,
the Company shall use its best efforts to cause the
Registration Statement to become effective as promptly as
possible. Following the effective date of a Registration
Statement, the Company shall, upon the request of the
Investor, forthwith supply such reasonable number of copies
of the Registration Statement (including, without
limitation, the exhibits and schedules thereto), preliminary
prospectus and prospectus meeting the requirements of the
Securities Act (including, without limitation, any and all
amendments or supplements thereto), and other documents
necessary or incidental to the public offering of the
Registrable Securities, as shall be reasonably requested by
the Investor to permit the Investor to sell, distribute or
otherwise dispose of the Investor's Registrable Securities.
The obligations of the Company hereunder with respect to the
Investor's beneficially owned Registrable Securities are
subject to the Investor's furnishing to the Company such
appropriate information concerning the Investor, the
Investor's Registrable Securities and the terms of the
Investor's offering of such Registrable Securities as the
Company may reasonably request in writing.
(b) The Company shall provide the Investor, any underwriter
participating in any disposition pursuant to a Registration
Statement, and any attorney, accountant or other agent
retained by the Investor or underwriter (each, an
"Inspector" and, collectively, the "Inspectors"), the
opportunity to review and comment (including reviewing and
commenting on relevant documents and agreements) in the
preparation of such Registration Statement, each prospectus
included therein or tiled with the Commission and each
amendment or supplement thereto.
(c) For a reasonable period prior to the filing of any
Registration Statement pursuant to this Agreement, the
Company shall make available for inspection at the Company's
offices and copying by the Inspectors such financial and
other information and books and records, pertinent corporate
documents and properties of the Company and its subsidiaries
and cause the officers, directors, employees, counsel and
independent certified public accountants of the Company and
its subsidiaries to respond to such inquiries and to supply
all information reasonably requested by any such Inspector
in connection with such Registration Statement, as shall be
reasonably necessary, in the judgment of the respective
counsel, to conduct a reasonable investigation within the
meaning of the Securities Act.
(d) The Company shall promptly notify in writing the Investor,
the sales or placement agent, if any, therefor and the
managing underwriter of the securities being sold: (i) when
such Registration Statement or the prospectus included
therein or any prospectus amendment or supplement or
post-effective amendment has been filed, and, with respect
to any such Registration Statement or any post-effective
amendment, when the same has become effective: (ii) when the
Commission notifies the Company whether there will be a
"review's of such Registration Statement: (iii) of any
comments (oral or written) by the Commission and by the blue
sky or securities commissioner or regulator of any state
with respect thereto or (iv) of any request by the
Commission for any amendments or supplements to such
Registration Statement or the prospectus or for additional
information.
(e) The Company shall promptly notify in writing the Investor,
the sales or placement agent, if any, therefor and the
managing underwriter of the securities being sold pursuant
to any Registration Statement at any time when a prospectus
relating thereto is required to be delivered under the
Securities Act upon discovery that, or upon the happening of
any event as a result of which, any prospectus included in
such Registration Statement (or amendment or supplement
thereto) contains an untrue statement of a material fact or
omits to state any 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, and the Company shall promptly prepare a
supplement or amendment to such prospectus and file it with
the Commission promptly following notice of the occurrence
of such event to the Investor, the sales or placement agent
and the managing underwriter so that after delivery of such
prospectus, as so amended or supplemented, to the purchasers
of such Registrable Securities, such prospectus, as so
amended or supplemented, shall not contain an untrue
statement of a material fact or omit to state any material
fact required to be stated therein or necessary to make the
statements therein not misleading in light of the
circumstances under which they were made.
(f) The Company shall promptly notify in writing the Investor,
the sales or placement agent, if any, therefor and the
managing underwriter of the securities being sold of the
issuance by the Commission of (i) any stop order issued or
threatened to be issued by the Commission or (ii) 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 the Company agrees to use its commercially reasonable
efforts to (x) prevent the issuance of any such stop order,
and in the event of such issuance, to obtain the withdrawal
of any such stop order and (v) obtain the withdrawal of any
order suspending or preventing the use of any related
prospectus or suspending the qualification of any
Registrable Securities included in such Registration
Statement for sale in any jurisdiction at the earliest
practicable date.
(g) The Company shall prepare and file with the Commission such
amendments, including post-effective amendments to each
Registration Statement as may be necessary to keep such
Registration Statement continuously effective for the
applicable time period required hereunder and, if
applicable, file any Registration Statements pursuant to
Rule 462(b) (or any similar provision then in force) under
the Securities Act; 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) promulgated under the
Securities Act: and comply with the provisions of the
Securities Act and the Securities Exchange Act of 1934; as
amended (the "Exchange Act"), with respect to the
disposition of all securities covered by such Registration
Statement during such period in accordance with the intended
methods of disposition by the sellers thereof set forth in
such Registration Statement as so amended or in such
prospectus as so supplemented. If the Investor so requests,
to request acceleration of effectiveness of the Registration
Statement from the Commission and any post-effective
amendments thereto, if any are filed. If the Company wishes
to further amend the Registration Statement prior to
requesting acceleration, it shall have five (5) days to so
amend prior to requesting acceleration.
(h) The Company shall pay all costs, fees and expenses in
connection with all Registration Statements filed pursuant
to Section 2 hereof including, without limitation, the
Company's legal and accounting fees, printing expenses, and
blue sky fees and expenses; provided, however, that the
Investor shall be solely responsible for the fees of any
counsel retained by the Investor in connection with such
registration and any transfer taxes or underwriting
discounts, commissions or fees applicable to the Registrable
Securities sold by the Investor pursuant thereto.
(i) The Company will take all necessary action which may be
required in qualifying or registering the Registrable
Securities included in a Registration Statement for offering
and sale under the securities or blue sky laws of such
states as are reasonably requested by the Investors of such
securities: provided, that the Company shall not be
obligated to execute or file any general consent to service
of process or to qualify as a foreign corporation to do
business under the laws of any such jurisdiction.
(j) The Company shall cooperate with the Investor to facilitate
the timely preparation and delivery of certificates
representing the securities to be sold pursuant to the
Registration Statement free of any restrictive legends and
in such denominations and registered in such names as the
Investor may request a reasonable period of time prior to
sales of the securities pursuant to such Registration
Statement.
(k) The Company agrees generally to cooperate with Investors in
effecting compliant resale of the Registrable Securities,
including comfort and other customary broker agreements and
documentations and certificates
4. Additional Terms.
(a) To the extent permitted by law, the Company will indemnify
and hold harmless the Investor, its agents, trustees and
beneficiaries, partners or officers, directors and
shareholders of the Investor, legal counsel and accountants
for the Investor, and each person who controls the Investor
within the meaning of the Securities Act or the Exchange
Act, against any losses, claims, damages or liabilities
(joint or several) to which they may become subject under
the Securities Act, the Exchange Act or any state securities
laws, insofar as such losses, claims, damages, or
liabilities (or actions in respect thereof) arise out of or
are based upon any of the following statements, omissions or
violations (collectively a "Violation"): (i) any untrue
statement or alleged untrue statement of a material fact
contained in such Registration Statement, including any
preliminary prospectus or final prospectus contained therein
or any amendments or supplements thereto: (ii) 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, or (iii) any Violation or
alleged Violation by the Company of the Securities Act, the
Exchange Act, any state securities laws or any rule or
regulation promulgated under the Securities Act, the
Exchange Act or any state securities laws: and the Company
will reimburse the indemnified party under this Section
4(a), for any reasonable legal or other expenses reasonably
incurred by it in connection with investigating or defending
any such loss, claim, damage, liability or action; provided,
however, that the indemnity described herein shall - not
apply any loss, claim, damage, liability or action to the
extent that it arises out of or is based upon a Violation
that occurs in reliance upon and in conformity with written
information furnished expressly for use in connection with
such registration by the Investor; provided further,
however, that the foregoing indemnity agreement with respect
to any preliminary prospectus shall not inure to the benefit
of the Investor, from whom the person asserting any such
losses, claims, damages or liabilities purchased shares in
the offering, if a copy of the prospectus (as then amended
or supplemented if the Company shall have furnished any
amendments or supplements thereto) was not sent or given by
or on behalf of such Investor to such person, if required by
law so to have been delivered, at or prior to the written
confirmation of the sale of the shares to such person, and
if the prospectus (as so amended or supplemented) would have
cured the defect rise to such loss, claim, damage or
liability.
(b) To the extent permitted by law, the Investor will severally,
and not jointly, indemnify and hold harmless the Company,
each of its directors, each of its officers who has signed
the registration statement, each person, if any, who
controls the Company within the meaning of the Securities
Act or the Exchange Act and legal counsel and accountants
for the Company, against any losses, claims, damages or
liabilities to which any of the foregoing persons may become
subject, under the Securities Act, the Exchange Act or any
state securities laws, insofar as such losses, claims,
damages or liabilities (or actions in respect thereto) arise
out of or are based upon any Violation, in each case to the
extent (and only to the extent) that such Violation occurs
in reliance upon and in conformity with written information
specifically furnished by the Investor expressly for use in
connection with such registration which consists solely of
the information specified in Section 4(d): and the Investor
will reimburse any person intended to be indemnified
pursuant to the foregoing, for any legal or other expenses
reasonably incurred by such person in connection with
investigating or defending any such loss, claim, damage,
liability or action: provided, however, that the indemnity
obligation of the Investor hereunder shall not in any event
exceed the net proceeds received by the Investor from the
offering giving rise to such liability.
(c) Promptly after receipt by an indemnified party of notice of
the commencement of any action (including any governmental
action), such indemnified party will, if a claim in respect
thereof is to be made against any indemnifying parry shall
deliver to the indemnifying party a written notice of the
commencement thereof and the indemnifying party shall have
the right to participate in, and, to the extent the
indemnifying party so desires, jointly with any other
indemnifying parry similarly noticed, to assume the defense
thereof with counsel reasonably satisfactory to each party:
provided, however, that an indemnified party (together with
all other indemnified parties that may be represented
without conflict by one counsel) shall have the right to
retain one separate counsel, with the reasonable fees and
expenses to be paid by the indemnifying party, if
representation of such indemnified parry by the counsel
retained by the indemnifying party would be inappropriate
due to actual or potential differing interests between such
indemnified parry and any other parry represented by such
counsel in such proceeding. The failure to deliver written
notice to the indemnifying party within a reasonable time of
the commencement of any such action, if materially
prejudicial to its ability to defend such action, shall
relieve such indemnifying parry' of any liability to the
indemnified party, but the omission so to deliver written
notice to the indemnifying party will not relieve it of any
liability that it may have to any indemnified party
otherwise than under this paragraph. . After notice from an
indemnifying party to such indemnified parry of its election
to assume the defense thereof, the indemnifying party will
not be liable to such indemnified parry pursuant to the
provisions of this paragraph for any legal or other expense
subsequently incurred by such indemnified party in
connection with the defense thereof other than reasonable
costs of investigation, unless (i) the indemnified party
shall have employed counsel in accordance with the first
sentence of this paragraph or (ii) the indemnifying party'
has authorized the employment of counsel for the indemnified
parry' at the expense of the indemnifying party. No
indemnifying party shall be liable for any settlement of any
action, claim or proceeding effected without its prior
written consent; provided, however, that the indemnifying
party shall not unreasonably withhold, delay or condition
its consent. No indemnifying party shall, without the prior
written consent of the indemnified party, consent to entry
of any judgment or enter into any settlement or other
compromise which does not include as an unconditional term
thereof the giving by the claimant or plaintiff to such
indemnified party of a release from all liability' in
respect to such claim or litigation. Following
indemnification as provided for hereunder, the indemnifying
party shall be subrogated to all rights of the indemnified
party with respect to all third parties, firms or
corporations relating to the matter for which
indemnification has been made.
(d) The Investor confirms, and the Company acknowledges, that
the information to appear in the table in the section
entitled "Principal and Selling Shareholders" or
equivalently named section in the Registration Statement
under the headings "Name of Beneficial Owner." "Shares
Beneficially Owned Prior to Offering-- Number of Shares."
"Maximum Number of Shares Offered in this Offering," or
equivalently named headings in the Registration Statement
and in the footnote related to such information pertaining
to the Investor constitute the only information concerning
the Investor that will be furnished in writing to the
Company by or on behalf of the Investor for inclusion in the
Registration Statement.
(e) If the indemnification provided for above is held by a court
of competent jurisdiction to be unavailable to an
indemnified party with respect to any loss, liability,
claim, damage or expense referred to herein, then the
indemnifying party, in lieu of indemnifying such indemnified
party hereunder, shall contribute to the amount paid or
payable by such indemnified party as a result of such loss,
liability, claim, damage or expense in such proportion as is
appropriate to reflect the relative fault of the
indemnifying party on the one hand and of the indemnified
party on the other in connection with the statements or
omissions that resulted in such loss, liability, claim,
damage or expense, as well as any other relevant equitable
considerations. The relative fault of the indemnifying party
and of the indemnified parry shall be determined by
reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission
to state a material fact relates to information supplied by
the indemnifying party or by the indemnified party and the
parties' relative intent, knowledge, access to information,
and opportunity to correct or prevent such statement or
omission. No person guilty of fraudulent misrepresentations
(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.
Notwithstanding any other provision of this Section, the
Investor shall not be required to contribute any amount in
excess of the amount by which the net proceeds received by
such Investor from the sale of the shares of the Common
Stock issued upon conversion of the Debenture or sale of the
shares of Common Stock issued upon exercise of the Warrants,
in each case pursuant to a Registration Statement exceeds
the amount of damages which the Investor has otherwise been
required to pay be reason of such untrue or alleged untrue
statement or alleged omission. The obligation of the
Investor obliged to make contribution pursuant to this
Section shall be several and not joint.
(f) Neither the filing of a Registration Statement by the
Company pursuant to this Agreement nor the making of any
request for prospectuses by the Investor shall impose upon
the investor any obligation to sell the investor's
beneficially owned Registrable Securities.
(g) The Investor, upon receipt of notice from the Company that
an event has occurred which requires a Post-Effective
Amendment to the Registration Statement or a supplement to
the prospectus included therein, shall promptly discontinue
the sale of Registrable Securities until the Investor
receives a copy of a supplemented or amended prospectus from
the Company, which the Company shall provide as soon as
practicable after such notice.
(h) If the Company fails to keep the Registration Statement
referred to above continuously effective during the
requisite period, then the Company shall, promptly upon the
request of the Investor, use its best efforts to update the
Registration Statement or file a new registration statement
covering the Registrable Securities remaining unsold,
subject to the terms and provisions hereof.
(i) The Investor agrees to provide the Company With any
information or undertakings reasonably requested by the
Company in order for the Company to include any appropriate
information concerning the Issuer in the Registration
Statement or in order to promote compliance by the Company
or the Issuers with the Securities Act.
(j) With a view to making available to the Investor the benefits
of Rule 144 and Rule 144A promulgated under the Securities
Act and other rules and regulations of the Commission that
may at any time permit the Investor to sell securities of
the Company to the public without registration, the Company
covenants that it shall use commercially reasonable efforts
to (i) file in a timely manner all reports and other
documents required to be filed by it under the Securities
Act and the Exchange Act and the rules and regulations
adopted by the Commission thereunder and (ii) take such
further action as the Investor may reasonably request
(including providing any information necessary to comply
with Rule 144 and Rule 144A, if available with respect to
resales of the Registrable Securities under the Securities
Act), at all times, all to the extent required from time to
time to enable the Investor to sell Registrable Securities
without registration under the Securities Act within the
limitation of the exemptions provided by (x) Rule 144 and
Rule 144A (if available with respect to resales of the
Registrable Securities) under the Securities Act, as such
rules may be amended from time to time, or (y) any other
rules or regulations now existing or hereafter adopted by
the Commission
5. Governing Law. This Agreement shall be deemed to have been made
and delivered in the State of New York and shall be governed as to
validity, interpretation, construction, effect and in all other
respects by the internal substantive laws of the State of New York,
without giving effect to the choice of law rules thereof.
6. Amendment. This Agreement may only be amended by a written instrument
executed by the Company and the Investor.
7. Entire Agreement. This Agreement constitutes the entire agreement of
the parties hereto with respect to the subject matter hereof, and
supersedes all prior agreements and understandings of the parties,
oral and written, with respect to the subject matter hereof.
8. Execution in Counterparts. This Agreement may be executed in one or
more counterparts, each of which shall be deemed an original, but all
of which together shall constitute one and the same document.
9. Notices. All notices, requests, demands and other
communications hereunder shall be in writing and shall be deemed duly
given when delivered by hand or mailed by, registered or certified
mail, postage prepaid, return receipt requested, as set forth in the
Securities Purchase Agreement.
10. Binding Effect: Benefits. The Investor may assign his, her or
its rights hereunder as set forth in the Warrant. This Agreement shall
inure to the benefit of, and be binding upon the parties hereto and
their respective heirs, legal representatives and successors. Nothing
herein contained, express or implied, is intended to confer upon any
person other than the parties hereto and their respective heirs, legal
representatives and successors, any rights or remedies under or by
reason of this Agreement.
11. Transfer of Registration Rights. The rights of the Investor
under this Agreement may be transferred or assigned in connection with
a transfer of Registrable Securities to any transferee or assignee.
Notwithstanding the foregoing, such rights may only be transferred or
assigned if all of the following additional conditions are satisfied:
(a) such transfer or assignment is effected in accordance with
applicable securities laws: (b) such transferee or assignee agrees in
writing to become subject to the terms of this Agreement; and (c) the
Company is given written notice by the Investor of such transfer or
assignment, stating the name and address of the transferee or assignee
and identifying the Registrable Securities with respect to which such
rights are being transferred or assigned.
12. Headings. The headings contained herein are for the sole
purpose of convenience of reference, and shall not in any way limit or
affect the meaning or interpretation of any of the terms or provisions
of this Agreement.
13. Severability. Any provision of this Agreement which is held by
a court of competent jurisdiction to be prohibited or unenforceable in
any jurisdiction(s) shall be, as to such jurisdiction(s , ineffective
to the extent of such prohibition or unenforceability without
invalidating the remaining provisions of this Agreement or affecting
the validity or enforceability of such provision in any other
jurisdiction.
IN WITNESS WHEREOF, this Agreement has been executed and delivered by the
parties hereto as of the date first above written.
Environmental Solutions Worldwide Inc.
By:
--------------------------------------------
Name:
-------------------------------------------
Its:
--------------------------------------------
INVESTOR:
By:
--------------------------------------------
Name:
Title:
A-1
629835
Annex A
Plan of Distribution
The Selling Stockholders and any of their pledgees, donees, transferees,
assignees and successors-in-interest may, from time to time, sell any or all of
their shares of Common Stock on any stock exchange, market or trading facility
on which the shares are traded or in private transactions. These sales may be at
fixed or negotiated prices. The Selling Stockholders may use any one or more of
the following methods when selling shares:
o ordinary brokerage transactions and transactions in which the
broker-dealer solicits Investors;
o block trades in which the broker-dealer will attempt to sell the
shares as agent but may position and resell a portion of the
block as principal to facilitate the transaction;
o purchases by a broker-dealer as principal and resale by the
broker-dealer for its account;
o an exchange distribution in accordance with the rules of the
applicable exchange:
o privately negotiated transactions;
o to cover short sales made after the date that this Registration
Statement is declared effective by the Commission;
o broker-dealers may agree with the Selling Stockholders to sell a
specified number of such shares at a stipulated price per share;
o a combination of any such methods of sale; and
o any other method permitted pursuant to applicable law.
The Selling Stockholders may also sell shares under Rule 144 under the
Securities Act, if available, rather than under this prospectus.
Broker-dealers engaged by the Selling Stockholders may arrange for other
brokers-dealers to participate in sales. Broker-dealers may receive commissions
or discounts from the Selling Stockholders (or, if any broker-dealer acts as
agent for the purchaser of shares from the purchaser) in amounts to be
negotiated. The Selling Stockholders do not expect these commissions and
discounts to exceed what is customary in the types of transactions involved.
The Selling Stockholders may from time to time pledge or grant a security
interest in some or all of the Shares owned by them and, if they default in the
performance of their secured obligations, the pledgees or secured parties may
offer and sell shares of Common Stock from time to time under this prospectus,
or under an amendment to this prospectus under Rule 424(b)(3) or other
applicable provision of the Securities Act of 1933 amending the list of selling
stockholders to include the pledgee, transferee or other successors in interest
as selling stockholders under this prospectus.
Upon the Company being notified in writing by a Selling Stockholder that
any material arrangement has been entered into with a broker-dealer for the sale
of Common Stock through a block trade, special offering, exchange distribution
or secondary distribution or a purchase by a broker or dealer, a supplement to
this prospectus will be filed, if required, pursuant to Rule 424(b) under the
Securities Act, disclosing (i) the name of each such Selling Stockholder and of
the participating broker-dealer(s), (ii) the number of shares involved, (iii)
the price at which such shares of Common Stock were sold, (iv) the commissions
paid or discounts or concessions allowed to such broker-dealer(s), where
applicable, (v) that such broker-dealer(s) did not conduct any investigation to
verify the information set out or incorporated by reference in this prospectus,
and (vi) other facts material to the transaction. In addition, upon the Company
being notified in writing by a Selling Stockholder that a donee or pledge
intends to sell more than 500 shares of Common Stock, a supplement to this
prospectus will be filed if then required in accordance with applicable
securities law.
The Selling Stockholders also may transfer the shares of Common Stock in
other circumstances, in which case the transferees, pledgees or other successors
in interest will be the selling beneficial owners for purposes of this
prospectus.
The Selling Stockholders and any broker-dealers or agents that are involved
in selling the shares may be deemed to be "underwriters" within the meaning of
the Securities Act in connection with such sales; In such event, any commissions
received by such broker-dealers or agents and any profit on the resale of the
shares purchased by them may be deemed to be underwriting commissions or
discounts under the Securities Act. Discounts, concessions, commissions and
similar selling expenses, if any, that can be attributed to the sale of
Securities will be paid by the Selling Stockholder and/or the purchasers. Each
Selling Stockholder has represented and warranted to the Company that it
acquired the securities subject to this registration statement in the ordinary
course of such Selling Stockholder's business and, at the time of its purchase
of such securities such Selling Stockholder had no agreements or understandings,
directly or indirectly, with any person to distribute any such securities.
If a Selling Stockholder uses this prospectus For any sale of the Common
Stock, it will be subject to the prospectus delivery requirements of the
Securities Act. The Selling Stockholders will be responsible to comply with the
applicable provisions of the Securities Act and Exchange Act, and the rules and
regulations thereunder promulgated, including, without limitation, Regulation
>1, as applicable to such Selling Stockholders in connection with resales of
their respective shares under this Registration Statement.
The Company is required to pay all fees and expenses incident to the
registration of the shares, but the Company will not receive any proceeds from
the sale of the Common Stock. The Company has agreed to 'indemnify the Selling
Stockholders against certain losses, claims, damages and liabilities, including
liabilities under the Securities Act. If the Selling Stockholders use this
prospectus for any sale of the Common Stock, they will be subject to the
prospectus delivery requirements of the Securities Act.