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EXHIBIT 10.11
STOCK PURCHASE WARRANT
THIS WARRANT (THE "WARRANT") IS ISSUED PURSUANT TO THE TERMS OF THE PROVISIONS
OF AN AGREEMENT (THE "AGREEMENT") BETWEEN ▇▇▇▇▇.▇▇▇, INC. (THE "COMPANY") AND
THE INITIAL WARRANT HOLDER. A COPY OF SUCH AGREEMENT IS ON FILE AT THE OFFICE
OF THE CORPORATE SECRETARY OF THE COMPANY. THIS SECURITY WAS SOLD IN A PRIVATE
PLACEMENT, WITHOUT REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE "SECURITIES ACT"), AND MAY BE OFFERED OR SOLD ONLY IF REGISTERED UNDER THE
SECURITIES ACT OR IF AN EXEMPTION FROM REGISTRATION IS AVAILABLE.
Dated: November 9, 2000 Warrant No. 1
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▇▇▇▇▇.▇▇▇, INC.
(formerly ANTHEM RECORDING WEST INC.)
STOCK PURCHASE WARRANT
172,550 Shares of Common Stock
The term "Holder" shall initially refer to ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP
which is the initial holder of this Warrant and shall further refer to any
subsequent permitted holder of this Warrant from time to time.
The Company does hereby certify and agree that, for good and valuable
consideration, the Holder, or its permitted successors and assigns, hereby is
entitled to purchase from ▇▇▇▇▇.▇▇▇, INC. (formerly ANTHEM RECORDING WEST
INC.)(the "Company") one hundred seventy-two thousand five hundred fifty
(172,550) duly authorized, validly issued, fully paid and non-assessable shares
of the Common Stock ("Stock") of the Company upon the terms and subject to the
provisions of this Warrant.
Section 1. Price and Exercise of Warrant.
1.1 Term of Warrant.
This Warrant shall be exercisable for a period of ten (10)
years after the date hereof (the expiration date for this Warrant is
hereinafter referred to as the "Expiration Date").
1.2 Exercise Price. The price per share at which the shares of
Stock are issuable upon exercise of this Warrant (the "Warrant Shares") shall
be $4.00 (the "Warrant Price").
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1.3 Exercise of Warrant.
(a) This Warrant may be exercised, in whole or in part,
upon surrender to the Company at its then principal offices in the United States
of the certificate or certificates evidencing this Warrant to be exercised,
together with the form of election to exercise attached hereto as Exhibit A duly
completed and executed, and upon payment to the Company of the Warrant Price for
the number of Warrant Shares in respect of which this Warrant is then being
exercised.
(b) Payment of the aggregate Warrant Price may be made (i)
in cash or by cashier's or bank check or (ii) if Stock is at the time traded on
a national securities exchange or the NASDAQ National Market, by making a
Cashless Exercise (as defined herein). Upon a "Cashless Exercise" the Holder
shall receive shares of Stock on a net basis such that, without the payment of
any funds, the Holder shall surrender this Warrant in exchange for the number of
shares of Stock equal to the product of (i) the number of shares of Stock as to
which this Warrant is being exercised, multiplied by (ii) a fraction, the
numerator of which is the aggregate fair market value price of such Stock less
the aggregate then applicable exercise price, and the denominator of which is
such aggregate fair market value price.
(c) Subject to Section 2 hereof, upon surrender of this
Warrant, and the duly completed and executed form of election to exercise, and
payment of the Warrant Price, the Company shall cause to be issued and delivered
to the Holder or such other person as the Holder may designate in writing a
certificate or certificates for the number of full shares of Stock so purchased
upon the exercise of this Warrant. Such certificate or certificates shall be
deemed to have been issued and any person so designated to be named therein
shall be deemed to have become a holder of record of such shares of Stock as of
the date of the surrender of this Warrant, and the duly completed and executed
form of election to exercise, and payment of the Warrant Price; provided, that
if the date of surrender of this Warrant and payment of the Warrant Price is not
a business day, the certificates for the shares of Stock shall be issued as of
the next business day (whether before or after the Expiration Date), and, until
such date, the Company shall be under no duty to cause to be delivered any
certificate for such shares of Stock or for shares of such other class of stock.
If this Warrant is exercised in part, a new warrant certificate of the same
tenor and for the number of Warrant Shares not exercised shall be executed by
the Company.
1.4 Fractional Interests. The Company shall not be required to
issue fractions of shares of Stock on the exercise of this Warrant. If any
fraction of a share of Stock would be issuable upon the exercise of this Warrant
(or any portion thereof), the Company shall purchase such fraction for an amount
in cash equal to the same fraction of the last reported sale price of the Stock
on the NASDAQ National Market System or any other national securities exchange
or market on which the Stock is then listed or traded.
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Section 2. Exchange and Transfer of Warrant.
(a) This Warrant may be transferred, in whole or in part,
without restriction, subject to receipt of an opinion from ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
LLP or any other law firm satisfactory to the Company that such transfer is in
compliance with applicable securities laws. A transfer may be registered with
the Company by submission to it of this Warrant, together with the annexed
Assignment Form attached hereto as Exhibit B duly completed and executed. After
the Company's receipt of this Warrant and the Assignment Form so completed and
executed, the Company will issue and deliver to the transferee a new warrant
(representing the portion of this Warrant so transferred) at the same Exercise
Price per share and otherwise having the same terms and provisions as this
Warrant, which the Company will register in the new holder's name. In the event
of a partial transfer of this Warrant, the Company shall concurrently issue and
deliver to the transferring holder a new warrant that entitles the transferring
holder to purchase the balance of this Warrant not so transferred and that
otherwise is upon the same terms and conditions as this Warrant. Upon the due
delivery of this Warrant for transfer, the transferee holder shall be deemed for
all purposes to have become the holder of the new warrant issued the portion of
this Warrant so transferred, effective immediately prior to the close of
business on the date of such delivery, irrespective of the date of actual
delivery of the new warrant representing the portion of this Warrant so
transferred.
(b) In the event of the loss, theft or destruction of this
Warrant, the Company shall execute and deliver an identical new warrant to the
Holder in substitution therefor upon the Company's receipt of (i) evidence
reasonably satisfactory to the Company of such event and (ii) if requested by
the Company, an indemnity agreement reasonably satisfactory in form and
substance to the Company. In the event of the mutilation of or other damage to
the Warrant, the Company shall execute and deliver an identical new warrant to
the Holder in substitution therefor upon the Company's receipt of the mutilated
or damaged warrant.
(c) The Company shall pay all costs and expenses incurred
in connection with the exercise, exchange, transfer or replacement of this
Warrant, including, without limitation, the costs of preparation, execution and
delivery of a new warrant and of stock certificates representing all Warrant
Shares; provided, that the Holder shall pay all stamp and other transfer taxes
payable in connection with the transfer or replacement of this Warrant.
Section 3. Certain Covenants.
(a) The Company shall at all times reserve for issuance and
keep available out of its authorized and unissued shares of Stock, solely for
the purpose of providing for the exercise of this Warrant, such number of shares
of Stock as shall from time to time be sufficient therefor.
(b) The Company will not, by amendment of its Certificate
of Incorporation or otherwise, avoid or seek to avoid the observance or
performance of any of the terms of this Warrant. Without limiting the
foregoing, the Company (i) will not increase the par value of any
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shares of capital stock receivable upon the exercise of this Warrant above the
amount payable therefor upon such exercise and (ii) will take all such action as
may be necessary or appropriate in order that the Company may validly and
legally issue fully paid and nonassessable shares of capital stock upon the
exercise of this Warrant.
Section 4. Adjustment of Warrant Price and Number of Warrant Shares.
The Warrant Price in effect at any time and the number and kind of
securities purchasable upon the exercise of this Warrant shall be subject to
adjustment from time to time upon the occurrence of certain events, as
hereinafter provided.
(a) In case the Company shall hereafter (i) pay a dividend
or make a distribution on its Stock in shares of its Stock, (ii) subdivide its
outstanding Stock, (iii) combine its outstanding Stock into a smaller number of
shares, or (iv) issue any shares by reclassification of its Stock (including any
such reclassification in connection with a consolidation or merger in which the
Company is the continuing corporation), the Warrant Price in effect at the time
of the record date for such dividend or distribution or the effective date of
such subdivision, combination or reclassification shall be proportionately
adjusted so that the Holder, upon exercise of this Warrant after such date,
shall be entitled to receive the aggregate number and kind of shares of Stock
which, if this Warrant had been exercised immediately prior to such record date,
it would have owned upon such exercise and been entitled to receive upon such
dividend, distribution, subdivision, combination or reclassification.
(b) Whenever the Warrant Price payable upon exercise of
this Warrant is adjusted pursuant to paragraph (a) above, the number of Warrant
Shares purchasable upon exercise of this Warrant shall simultaneously be
adjusted by multiplying the number of Warrant Shares initially issuable upon
exercise of this Warrant by the Warrant Price in effect as of the date of this
Warrant and dividing the product so obtained by the Warrant Price, as adjusted.
(c) No adjustment in the Warrant Price shall be required
unless such adjustment would require an increase or decrease of at least five
cents ($0.05) in such price; provided, that any adjustments not required to be
made shall be carried forward and taken into account in any subsequent
adjustment. All calculations under this Section 4 shall be made to the nearest
cent or to the nearest one-thousandth of a share, as the case may be.
(d) Whenever the Warrant Price is adjusted, as herein
provided, the Company shall promptly cause a notice setting forth the adjusted
Warrant Price and adjusted number of shares issuable upon exercise of this
Warrant to be mailed to the Holder. The certificate setting forth the
computation shall be signed by the Chief Financial Officer of the Company.
(e) In the event that at any time, as a result of any
adjustment made pursuant to paragraph (a) above, the holder of this Warrant
thereafter shall become entitled to receive any shares of the Company, other
than Stock, thereafter the number of such other shares so receivable
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upon exercise of this Warrant shall be subject to adjustment from time to time
in a manner and on terms as nearly equivalent as practicable to the provisions
with respect to the Stock contained in paragraph (a) above.
Section 5. Consolidation, Merger or Sale of Assets.
(a) In case of any consolidation of the Company with, or
merger of the Company with or into any other entity (other than a merger which
does not result in any reclassification, conversion, exchange or cancellation of
outstanding shares of Stock), or any sale or transfer of all or substantially
all of the assets of the Company or of the person formed by such consolidation
or resulting from such merger or which acquires such assets, as the case may be,
the Holder shall have the right thereafter to exercise this Warrant for the kind
and amount of securities, cash and other property receivable upon such
consolidation, merger, sale or transfer by a holder of the number or shares of
Stock for which this Warrant may have been exercised immediately prior to such
consolidation, merger, sale or transfer.
(b) Adjustments for events subsequent to the effective date
of such a consolidation, merger and sale of assets shall be as nearly equivalent
as may be practicable to the adjustments provided for in this Warrant. In any
such event, effective provisions shall be made in the certificate or articles or
incorporation of the resulting or surviving corporation, in any contract of
sale, conveyance, lease or transfer, or otherwise so that the provisions set
forth herein for the protection of the rights of the Holder shall thereafter
continue to be applicable; and any such resulting or surviving corporation shall
expressly assume the obligation to deliver, upon exercise, such shares of stock,
other securities, cash and property. The provisions of this Section 5 shall
similarly apply to successive consolidations, mergers, sales, leases or
transfers.
Section 6. Rights and Obligations of the Warrant Holder.
This Warrant shall not entitle the Holder to any rights of a
stockholder in the Company. The Holder shall have the specific "piggyback"
registration rights set forth in Exhibit C attached hereto and made a part
hereof. Capitalized terms not otherwise defined in Exhibit C shall have the
meanings set forth herein.
Section 7. Restrictive Stock Legend.
This Warrant and the Warrant Shares have not been registered under any
securities laws. Accordingly, any stock certificates issued pursuant to the
exercise of this Warrant shall (until receipt of an opinion from ▇▇▇▇▇▇▇▇ &
▇▇▇▇▇▇▇▇ LLP or another law firm satisfactory to the Company that such legend is
no longer necessary) bear the following legend:
THIS SECURITY WAS SOLD IN A PRIVATE PLACEMENT,
WITHOUT REGISTRATION UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND
MAY BE OFFERED OR SOLD ONLY IF REGISTERED
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UNDER THE SECURITIES ACT OR IF AN EXEMPTION FROM
REGISTRATION IS AVAILABLE.
Section 8. Notices.
Any notice or other communication required or permitted to be given
here shall be in writing and shall be effective (a) upon hand delivery or
delivery by e-mail or facsimile at the address or number designated below (if
delivered on a business day during normal business hours where such notice is to
be received) or the first business day following such delivery (if delivered
other than on a business day during normal business hours where such notice is
to be received), or (b) on the third business day following the date of mailing
by express courier service, fully prepaid, addressed to such address, or upon
actual receipt of such mailing, whichever shall first occur. The addresses for
such communication shall be:
If to the Company:
▇▇▇▇▇.▇▇▇ LIMITED
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone:
Telecopier:
E-Mail:
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
If to the Holder:
▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
E-Mail: ▇▇▇▇▇▇@▇▇▇▇.▇▇▇
Attention: Managing Partner
Each party hereto may from time to time change its address for notices under
this Section 8 by giving at least 10 days' notice of such changes address to
the other party hereto.
Section 9. Amendments and Waivers.
This Warrant and any term hereof may be changed, waived, discharged or
terminated only by an instrument in writing signed by the party against which
enforcement of such change, waiver, discharge or termination is sought.
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Section 10. Applicable Law.
This Warrant shall be governed by and construed and enforced in
accordance with the laws of the State of Delaware.
IN WITNESS WHEREOF, the Company has caused this Warrant to be duly
executed on the day and year first above written.
▇▇▇▇▇.▇▇▇, INC.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
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▇▇▇▇▇▇ ▇▇▇▇▇▇, President
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Exhibit A
To: ▇▇▇▇▇.▇▇▇, INC.
ELECTION TO EXERCISE
The undersigned hereby exercises its right to subscribe for and
purchase from ▇▇▇▇▇.▇▇▇, INC, fully paid, validly issued and nonassessable
shares of Stock covered by the within Warrant and tenders payment herewith in
the amount of $______________________ in accordance with the terms thereof, and
requests that certificates for such shares be issued in the name of, and
delivered to:
______________________
______________________
______________________
Date: _____________________ [Holder]
By _________________________
Name:
Title:
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Exhibit B
ASSIGNMENT FORM
To: ▇▇▇▇▇.▇▇▇, INC.
The undersigned hereby assigns and transfers this Warrant to
_______________________________________________________________________________
(Insert assignee's social security or tax identification number)
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
__________________________________________________________________________
(Print or type assignee's name, address and postal code)
and irrevocably appoints _______________________________________________________
to transfer this Warrant on the books of the Company.
Date: __________________ [Holder]
By __________________________
Name:
Title:
(Sign exactly as your name appears on the face of this Warrant)
Signature guarantee:
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Exhibit C
PIGGYBACK REGISTRATION RIGHTS
1. PIGGYBACK REGISTRATION RIGHTS.
1.1 Piggyback Rights. If (but without any obligation to do
so) the Company proposes to register any of its capital stock under the United
States Securities Act of 1933 (the "Act") in connection with the public
offering of such stock (other than (i) a registration relating solely to the
sale of securities to participants in a Company stock option or stock rights or
stock purchase plan, (ii) a registration relating to a corporate reorganization
or other transaction under Rule 145 of the Act, (iii) a registration on any
form that does not include substantially the same information as would be
required to be included in a registration statement covering the sale of the
Stock; or (iv) a registration in which the only Common Stock being registered is
Common Stock issuable upon conversion of debt securities that are also
being registered), the Company shall, at such time, promptly give the Holder
written notice of such registration. Upon the written request of the Holder
given within thirty (30) days after mailing of such notice by the Company, the
Company shall, subject to the provisions of Section 1.4 of this Exhibit C, use
its commercially reasonable efforts to cause a registration statement to become
effective, which includes all of the Stock that the Holder requests to be
registered by such notice and for which the Holder (or its individual members)
is then the shareholder of record. The Holder acknowledges that registration of
securities by the Company may give rise to piggyback registration rights of
other stockholders, which may affect the Holder's rights as described hereunder.
1.2 Right to Terminate Registration. The Company shall have
the right to terminate or withdraw any registration initiated by it under this
Section prior to the effectiveness of such registration whether or not the
Holder has elected to include securities in such registration.
1.3 Expenses of Registration. All expenses other than
underwriting discounts and commissions incurred in connection with
registrations, filings or qualifications pursuant to this Section, including
without limitation all registration, filing and qualification fees (including
Blue Sky fees), printers' and accounting fees, and fees and disbursements of
counsel for the Company and the reasonable fees and disbursements for one
counsel for the Holder shall be borne by the Company. Any fees or disbursements
of counsel for the Holder (other than the single counsel referenced above)
shall be borne by the Holder.
1.4 Underwriting Requirements. In connection with any
offering involving an underwriting of shares of the capital stock of the
Company, the Company shall not be required under this Section to include any of
the Stock in such underwriting unless the Holder accepts the terms of the
underwriting as agreed upon between the Company and the underwriters selected by
it (or by other persons entitled to select the underwriters) and enters into an
underwriting agreement in customary form with an underwriter or underwriters
selected by the Company. If the total amount of securities, including Stock,
requested by stockholders
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or other securities holders to be included in such offering exceeds the amount
of securities sold other than by the Company that the underwriters determine in
their sole discretion is compatible with the success of the offering, then the
Company shall be required to include in the offering only that number of such
securities, including Stock, that the underwriters determine in their sole
discretion will not jeopardize the success of the offering (the securities so
included to be apportioned pro rata among the selling stockholders according to
the total amount of securities entitled to be included therein owned by each
selling stockholder or in such other proportions as may be mutually agreed to by
such selling stockholders).
1.5 Information from the Holder. It shall be a condition
precedent to the obligations of the Company to take any action pursuant to this
Section with respect to the Stock that the Holder shall furnish to the Company
such information regarding itself and its individual members, the Stock held by
Holder or its members, and the intended method of disposition of such securities
as shall be reasonably required to effect the registration of the Stock.
1.6 No Delay of Registration. The Holder shall not have any
right to obtain or seek an injunction restraining or otherwise delaying any such
registration as the result of any controversy that might arise with respect to
the interpretation or implementation of this Section.
2. INDEMNIFICATION
In the event any shares of Stock are included in a registration statement
under Section 1 of this Exhibit C:
2.1 The Company Indemnity. To the extent permitted by law,
the Company will indemnify, defend and hold harmless the Holder, the partners
or officers, directors, stockholders, legal counsel and accountants for the
Holder, any underwriter (as defined in the Act) for the Holder and each person,
if any, who controls the Holder or underwriter, within the meaning of the
Securities Act or the Securities Exchange Act of 1934, as amended (the
"Exchange Act") (each an "Indemnified Person"), 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 in connection
with such registration; and the
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Company will reimburse each Indemnified Person for any legal or other expenses
reasonably incurred by them in connection with investigating or defending any
such loss, claim, damage, liability or action as such expenses are incurred;
provided however that the indemnity agreement contained in this Section 2.1
shall not apply to amounts paid in settlement of any such loss, claim, damage,
liability or action if such settlement is effected without the consent of the
Company (which consent shall not be unreasonably withheld), nor shall the
Company be liable in any such case for any such 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 any Indemnified
Person; provided further, however, that the foregoing indemnity agreement with
respect to any preliminary prospectus shall not inure to the benefit of any
Indemnified Person from whom the person asserting any such losses, claims,
damages or liabilities Stock 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
Indemnified Person 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 giving rise to such loss, claim, damage or liability.
2.2 Holder Indemnity. To the extent permitted by law, the Holder
and each of them will jointly and severally indemnify, defend 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, legal counsel and accountants for The Company,
any underwriter, any other stockholder selling securities in such registration
statement and any controlling person of any such underwriter or other
stockholder, against any losses, claims, damages or liabilities (joint or
several) 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 (but excluding clause (iii) of the definition
thereof), in each case to the extent (and only to the extent) that such
Violation occurs in reliance upon and in conformity with written information
furnished by the Holder expressly for use in connection with such registration;
and the Holder will reimburse any person intended to be indemnified pursuant to
this Section 2.2 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 agreement
contained in this Section 2.2 shall not apply to amounts paid in settlement of
any such loss, claim, damage, liability or action if such settlement is effected
without the consent of the Holder (which consent shall not be unreasonably
withheld).
2.3 Prompt Notice Required. Promptly after receipt by an
indemnified party under this Section 2 of actual knowledge 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 party under
this Section 2, deliver to the indemnifying party a
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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 party similarly noticed, to assume
the defense thereof with counsel mutually satisfactory to the parties; 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 fees and expenses to be paid by the
indemnifying party, if representation of such indemnified party by the counsel
retained by the indemnifying party would be inappropriate due to actual or
potential differing interests between such indemnified party and any other
party 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 prejudicial to its ability to defend such
action, shall relieve such indemnifying party of any liability to the
indemnified party under this Section 2 to the extent of such prejudice, but the
omission to so 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 Section 2.3.
2.4 Alternative Relief. If the indemnification provided for in
this Section 2 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
and the relative benefits received by 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, provided that no person
guilty of fraud shall be entitled to contribution. The relative fault of the
indemnifying party and of the indemnified party 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. The relative benefits
received by the indemnifying party and the indemnified party shall be determined
by reference to the net proceeds and underwriting discounts and commissions from
the offering received by each such party.
2.5 Underwriting Agreement. Notwithstanding the foregoing, to
the extent that the provisions on indemnification and contribution contained in
the underwriting agreement entered into in connection with the underwritten
public offering are in conflict with the foregoing provisions of this Section 2,
the provisions in the underwriting agreement shall control.
2.6 Survival. The obligations of the Company and the Holder
under this Section 2 shall survive the completion of any offering of the Stock
in a registration statement under Section 1 of this Exhibit C, and otherwise.
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3. ASSIGNMENT
The rights to cause the Company to register Stock pursuant to Section 1
of this Exhibit C may be assigned (but only with all related obligations) by
Holder to a transferee or assignee of such securities provided; (a) the
Company is, within a reasonable time after such transfer, furnished with
written notice of the name and address of such transferee or assignee and the
securities with respect to which such registration rights are being assigned
and (b) such transferee or assignee agrees in writing to be bound by and
subject to the terms and conditions of the Agreement.
4. TERMINATION OF REGISTRATION RIGHTS
The Holder shall not be entitled to exercise any right provided for in
Section 1 of this Exhibit C after such time at which all Stock of the relevant
holder can be sold in any three (3) month period without registration in
compliance with Rule 144 of the Act.
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