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EXHIBIT 4.8
EXECUTION COPY
WARRANTS
REGISTRATION RIGHTS AGREEMENT
by
PSF HOLDINGS, L.L.C.
for the benefit of
THE HOLDERS NAMED HEREIN
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Dated as of September 17, 1996
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1. Definitions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
2. Shelf Registration. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
3. Demand Registration. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
4. Piggyback Registration. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
5. Blackout Periods. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
6. Expenses. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
7. Registration Procedures. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
8. Underwritten Offerings. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
9. Preparation; Reasonable Investigation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
10. Indemnification. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
11. Registration Rights to Others. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
12. Adjustments Affecting Registrable Warrants. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
13. Rule 144 and Rule 144A. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
14. Amendments and Waivers. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
15. Nominees for Beneficial Owners. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
16. Assignment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
17. Calculation of Percentage of Principal Amount of Registrable Warrants. . . . . . . . . . . . . . . . . . . 20
18. Miscellaneous. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
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WARRANTS REGISTRATION RIGHTS AGREEMENT
WARRANTS REGISTRATION RIGHTS AGREEMENT, dated as of September 17, 1996
(this "Agreement"), by PSF Holdings, L.L.C., a Delaware limited liability
company (the "Company"), for the benefit of the holders of Registrable Warrants
(as hereinafter defined) (the "Holders").
This Agreement is being entered into in accordance with the Plan in
connection with the acquisition of Registrable Warrants (each as hereinafter
defined) by certain holders (the "Initial Holders") pursuant to the Plan. Each
Initial Holder owns the aggregate number of Registrable Warrants specified with
respect to such original Holder in Schedule I hereto.
To induce the holders of Registrable Warrants to vote in favor of the
Plan and to accept the issuance of such Warrants by the Company under the Plan,
the Company has undertaken to register the Registrable Warrants under the
"Securities Act" (as hereinafter defined) and to take certain other actions
with respect to the Registrable Warrants. This Agreement sets forth the terms
and conditions of such undertaking.
In consideration of the premises and the mutual agreements set forth
herein, the Company hereby agrees as follows:
1. Definitions. Unless otherwise defined herein, capitalized terms
used herein and in the recitals above shall have the following meanings:
"Affiliate" of a Person means any Person that directly, or indirectly
through one or more intermediaries, controls, is under common control with, or
is controlled by, such other Person. For purposes of this definition,
"control" means the ability of one Person to direct the management and policies
of another Person, whether by means of contract, securities ownership, or
otherwise.
"Business Day" means any day except a Saturday, Sunday or other day on
which commercial banks in New York City are authorized or required by law to be
closed.
"Commission" means the United States Securities and Exchange
Commission.
"Company" has the meaning provided in the preamble hereto.
"Company Indemnitee" has the meaning provided in Section 10 hereof.
"Demand Registration" means any registration pursuant to Section 3
hereof.
"Disadvantageous Condition" has the meaning provided in Section 5
hereof.
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"Effectiveness Period" has the meaning provided in Section 2
hereof.
"Exchange Act" means the Securities Exchange Act of 1934, as amended,
and the rules and regulations of the Commission thereunder, or any similar or
successor statute.
"Expenses" means all expenses incident to the Company's performance of
or compliance with its obligations under this Agreement, including, without
limitation, all registration, filing, listing, stock exchange and NASD fees,
all fees and expenses of complying with state securities or blue sky laws
(including fees, disbursements and other charges of counsel for the
underwriters in connection with blue sky filings), all word processing,
duplicating and printing expenses, messenger and delivery expenses, all rating
agency fees, the fees, disbursements and other charges of counsel for the
Company and of its independent public accountants, including the expenses
incurred in connection with "comfort" letters required by or incurred in
connection with "comfort" letters required by or incident to such performance
and compliance, any fees and disbursements of underwriters customarily paid by
issuers and sellers of securities and the reasonable fees, disbursements and
other charges of one firm of counsel (per registration prepared) chosen by the
Holders of a majority of the Registrable Warrants, but excluding broker-dealer
and underwriting concessions, allowances, discounts and commissions and
applicable transfer taxes, if any, which concessions, allowances, discounts,
commissions and transfer taxes shall be borne by the seller or sellers of
Registrable Warrants in all cases.
"Holder" means (i) the Initial Holders and (ii) any transferees of the
Registrable Warrants (a) whose Warrants continue to be Registrable Warrants and
(b) who have been assigned the transferor's rights under Section 16 hereof.
"Holder Indemnitee" shall have the meaning provided in Section 10
hereof.
"Initial Shelf Registration" has the meaning set forth in Section 2
hereof.
"Initiating Holders" has the meaning set forth in Section 3 hereof.
"Loss" and "Losses" shall have the meaning provided in Section 10
hereof.
"NASD" means the National Association of Securities Dealers, Inc.
"NASDAQ" means the National Association of Securities Dealers, Inc.
Automated Quotation System.
"Offering Documents" shall have the meaning provided in Section 10
hereof.
"Person" means any individual, corporation, partnership, firm, limited
liability company, joint venture, association, joint stock company, trust,
unincorporated organization, governmental or regulatory body or subdivision
thereof or other entity.
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"Plan" means the joint plan of reorganization of PSF Finance L.P. and
certain affiliated entities as confirmed by the United States Bankruptcy Court
for the District of Delaware by order entered September 6, 1996.
"PSF" means Premium Standard Farms, Inc., a wholly owned subsidiary of
the Company.
"Public Offering" means a public offering and sale of securities
pursuant to an effective registration statement under the Securities Act.
"Registrable Warrants" means the Warrants held by the Initial Holders
(and permissible transferees of such Registrable Warrants pursuant to Section
16 hereof which become "Holders" hereunder); provided, however, that
Registrable Warrants shall cease to be Registrable Warrants upon (i) any sale
or distribution thereof pursuant to an effective registration statement under
the Securities Act; (ii) any sale or distribution permitting the recipient
thereof to sell such securities without restriction under the Securities Act
and any state securities laws; or (iii) the receipt by a Holder of such
Registrable Warrants of an opinion, satisfactory in form and substance to such
Holder, by legal counsel, reasonably acceptable to such Holder, to the effect
that the public sale or distribution of such Warrants without restriction under
the Securities Act and any state securities laws does not require the
registration of such Securities under the Securities Act and any state
securities laws or the use of an applicable exemption therefrom.
"Requesting Holders" has the meaning set forth in Section 4 hereof.
"Securities Act" means the Securities Act of 1933, as amended, and the
rules and regulations of the Commission thereunder, or any similar or successor
statute.
"Shelf Registration" has the meaning set forth in Section 2 hereof.
"Subsequent Shelf Registration" has the meaning set forth in Section 2
hereof.
"Warrants" means the warrants to purchase units of limited liability
company interests of the Company issued pursuant to the Plan, including any
warrants issued upon partial exercise, transfer of any such warrants and any
warrants or similar instruments issued or issuable with respect to or in
exchange for any such warrants, including in connection with any
recapitalization, merger, consolidation, reorganization or otherwise.
2. Shelf Registration.
a. Initial Shelf Registration. The Company shall (i) cause
to be filed as soon as practicable, but not later than April
30, 1997, a shelf registration statement pursuant to Rule 415
promulgated under the Securities Act (the "Initial Shelf
Registration") providing for the sale by the Holders, from
time to time, of all
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of the Registrable Warrants and (ii) use its best
efforts to have such Initial Shelf Registration
thereafter declared effective by the Commission
not later than June 30, 1997.
b. Subsequent Shelf Registrations. If the Initial Shelf
Registration is withdrawn or otherwise becomes
unavailable for use prior to the end of the
Effectiveness Period, then promptly following (or, if
possible, prior to) such withdrawal or unavailability
the Company shall file, and shall use its best
efforts to cause the Commission to declare effective,
a subsequent registration statement for a secondary
offering to be made on a continuous basis pursuant to
Rule 415 under the Securities Act covering all of the
Registrable Warrants which remain outstanding
(a "Subsequent Shelf Registration"). To the extent
the Company is aware of such withdrawal or
unavailability prior to the occurrence of same, it
shall use its best efforts to have the Subsequent Shelf
Registration filed at such time prior to such
withdrawal or unavailability which is reasonably
calculated to cause the Subsequent Shelf Registration
to become effective on or before the date of such
withdrawal or unavailability, and, in any event, on or
before 180 days prior to such withdrawal or
unavailability.
c. Amendments or Subsequent Shelf Registrations. If the
Initial Shelf Registration (except as provided in
Section 2(b)) or any Subsequent Shelf Registration
ceases to be effective for any reason at any time
during the Effectiveness Period for a reason other than
because of the sale of all of the Registrable
Warrants covered thereby, subject to Section 2(b),
the Company shall use its best efforts to obtain the
prompt withdrawal of any order suspending the
effectiveness thereof, and in any event shall, within
60 days of such cessation of effectiveness, amend such
Initial Shelf Registration or Subsequent Shelf
Registration in a manner reasonably calculated to
obtain the withdrawal of the order suspending the
effectiveness thereof, or shall file an additional
"shelf" registration statement pursuant to Rule 415
covering all of such Registrable Warrants which
remain unsold. (Each of the Initial Shelf
Registration and the Subsequent Shelf Registrations
is referred to individually herein as a "Shelf
Registration" and collectively as the "Shelf
Registrations.")
d. Effectiveness Period. The Company shall use its best
efforts to keep the Shelf Registration (including the
Initial Shelf Registration and any Subsequent Shelf
Registration) continuously effective under the
Securities Act until the earlier to occur of the
fourth anniversary of the date on which the Initial
Shelf Registration became effective (the
"Effectiveness Period"), or the date on which all
Registrable Warrants covered by the Initial Shelf
Registration have been sold; provided, however, that
the Effectiveness Period shall be extended
commensurate with any period during which a Shelf
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Registration which previously has been declared
effective by the Commission no longer is in effect as
required by this Agreement, or during which sales
have been suspended pursuant to Section 5 or Section
7(g) hereof. If a Subsequent Shelf Registration is
filed, pursuant to Section 2(b) or 2(c) hereof, the
Company shall use its best efforts to cause the
Subsequent Shelf Registration to be declared
effective as soon as reasonably practicable after
such filing and to keep such Registration Statement
continuously effective for a period after such
effectiveness equal to the Effectiveness Period, less
the aggregate number of days during which the Initial
Shelf Registration or any Subsequent Shelf
Registration was previously in effect. The intent of
this provision is that the Shelf Registration
(including the Initial Shelf Registration and any
Subsequent Shelf Registration) shall be in effect for
a number of days, in the aggregate, equal to four
years; provided that a Shelf Registration shall not
be required to be maintained in effect after all of
the Registrable Warrants have been sold thereunder or
otherwise distributed such that they are no longer
deemed to be Registrable Warrants hereunder.
e. Option to Extend Initial Shelf Registration. In
lieu of filing the Subsequent Shelf Registration
required under Section 2(b) hereof, the Company may,
in its sole discretion and if permitted by applicable
law, keep the Initial Shelf Registration continuously
effective for the remainder of the Effectiveness
Period or, if earlier, until all of the Registrable
Warrants eligible to be included in the Shelf
Registrations have been sold hereunder such that they
are no longer Registrable Warrants hereunder.
3. Demand Registration.
a. Demand Rights. After the termination of the
Effectiveness Period, so long as Registrable Warrants
remain outstanding, upon written notice to the
Company from one or more Holders (the "Initiating
Holders") of Registrable Warrants holding in the
aggregate 25% of the Registrable Warrants then
outstanding, requesting that the Company effect,
pursuant to this Section 3, the registration of such
Initiating Holders' Registrable Warrants under the
Securities Act (which notice shall specify the
Registrable Warrants so requested to be registered,
the proposed amounts thereof and the intended method
or methods of distribution by such Initiating Holders
(including whether the proposed offering is to be
underwritten), the Company shall promptly (but in any
event within 15 days) give written notice of such
requested registration to all Holders of Registrable
Warrants, and thereupon the Company shall use its
best efforts to effect the registration under the
Securities Act of: (A) the Registrable Warrants that
the Initiating Holders have requested the Company to
register, for disposition in accordance with the
intended method or methods of distribution stated in
their notice to the Company; and (B) all other
Registrable Warrants the Holders of which shall
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have made a written request to the Company for
registration thereof (which request shall specify such
Registrable Warrants and the proposed amounts thereof) within
15 days after the receipt of such written notice from the
Company, as expeditiously as possible (but in any event shall
file such registration statement within 60 days of the receipt
of such request by the Initiating Holders), all to the extent
requisite to permit the disposition by Holders of the
Registrable Warrants then constituting Registrable Warrants so
to be registered.
b. Frequency; Duration. The Company shall be obligated to effect
only one registration pursuant to this Section 3 with respect
to Holders of Registrable Warrants. Notwithstanding the
foregoing, the Company shall not be required to effect a
Demand Registration pursuant to this Section 3 during the
period starting with the date 30 days prior to the Company's
good faith estimate of the date of filing of, and ending on
the date 90 days following the effective date of, a
registration statement pertaining to an underwritten public
offering for the account of the Company with respect to which
Holders have piggyback rights pursuant to Section 4 hereof;
provided, however, that in the event a request for
registration is refused pursuant to this subsection (b), if
the Company then elects not to file a registration statement
or, if a registration statement is filed, the Company elects
not to complete the proposed offering, the Company shall
notify in writing the Holders whose request for registration
has been refused pursuant to clause (ii) above, and such
Holders shall have the right, within 10 days after receiving
written notice of the Company's election, to request the
Company to effect the registration of Registrable Warrants for
the account of Holders, and such registration shall be
considered a Demand Registration under this Section 3.
c. Inclusion of Other Securities. The Company may include
in a Demand Registration securities held by other Persons who
have piggyback registration rights pursuant to written
agreements with the Company or PSF; provided that Registrable
Warrants shall have absolute priority over any such other
securities in connection with any cutback.
4. Piggyback Registration. If the Company or PSF, at any time
prior to the expiration of the Effectiveness Period when there is not in
effect a Shelf Registration for the Registrable Warrants, proposes to register
any of its securities under the Securities Act or, at any time after the
expiration of the Effectiveness Period, proposes to register any of its
securities, on any forms (other than in connection with the registration of
securities issued or issuable pursuant to an employee stock option, stock
purchase, stock bonus or similar plan or dividend reinvestment plan or pursuant
to a merger, business combination, exchange offer or transaction of the type
specified in Rule 145(a) under the Securities Act), whether or not pursuant to
registration rights granted to other holders of its securities and whether or
not for sale for its own account, the Company shall give prompt written notice
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to all of the Holders of its or PSF's intention to do so and of such Holders'
rights (if any) under this Section 4, which notice, in any event, shall be
given at least 20 days prior to the filing with the Commission of such proposed
registration. Upon the written request of any Holder receiving notice of such
proposed registration (a "Requesting Holder") made within 15 days after the
receipt of any such notice (or 10 days if the Company states in such written
notice or gives telephonic notice to the relevant security holders, with
written confirmation to follow promptly thereafter, that (i) such registration
will be on Form S-3 and (ii) such shorter period of time is required because of
a planned filing date), which request shall specify the Registrable Warrants
intended to be disposed of by such Requesting Holder and the intended method of
such distribution, and the minimum offering price per Registrable Warrant at
which the Holder is willing to sell its Registrable Warrants, the Company
shall, subject to Section 8(b) hereof, include for registration under the
Securities Act all Registrable Warrants of the Requesting Holders; provided
that,
i. with respect to a registration of Registrable Warrants,
prior to the effective date of the registration statement
filed in connection with such registration, promptly following
receipt of notification by the Company from the managing
underwriter of the price at which such securities are to be
sold, if applicable, the Company shall so advise each
Requesting Holder of such price, and if such price is below
the minimum price which any Requesting Holder shall have
indicated to be acceptable to such Requesting Holder, such
Requesting Holder shall then have the right irrevocably to
withdraw its request to have its Registrable Warrants included
in such registration statement, by delivery of written notice
of such withdrawal to the Company within three Business Days
of its being advised of such price, without prejudice to the
rights of any Holder or Holders of Registrable Warrants to
include Registrable Warrants in any future registration (or
registrations) pursuant to this Section 4; and
ii. with respect to a registration of Registrable Warrants,
if at any time after giving written notice of its intention to
register any securities and prior to the effective date of the
registration statement filed in connection with such
registration, the Company shall determine for any reason not
to register or to delay registration of such other securities,
the Company may, at its election, give written notice to such
determination to each Requesting Holder and (i) in the case of
a determination not to register, shall be relieved of its
obligation to register any Registrable Warrants in connection
with such registration (but not from any obligation of the
Company to pay the Expenses in connection therewith), without
prejudice, however, to the rights of any Holder to include
Registrable Warrants in any future registration (or
registrations) pursuant to this Section 4 and (ii) in the case
of a determination to delay registering its other securities,
shall be
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permitted to delay registering any Registrable
Warrants, for the same period as the delay in registering
such other securities.
No registration effected under this Section 4 shall relieve the Company of its
obligations under Section 2 or 3 hereof.
5. Blackout Periods. With respect to a Shelf Registration filed
or to be filed pursuant to Section 2 hereof or a Demand Registration requested
under Section 3 hereof, if the Board of Directors of the Company shall
determine, in its good faith reasonable judgment, that to maintain the
effectiveness of such registration statement or to permit such registration
statement to become effective (or if no registration statement has yet been
filed, to file such registration statement) would be significantly
disadvantageous to the Company's financial condition, business or prospects ( a
"Disadvantageous Condition") in light of the existence, or in anticipation, of
(i) any acquisition of financing activity involving the Company, or any
subsidiary of the Company, including a proposed public offering or private
placement, (ii) an undisclosed material event, the public disclosure of which
could have a material adverse effect on the Company, (iii) a proposed material
transaction involving the Company or a substantial amount of its assets, or
(iv) any other circumstance or condition the disclosure of which would
materially disadvantage the Company, and the existence of which renders any to
be filed, then filed or effective registration statement inadequate as failing
to include material information, then the Company may, until such
Disadvantageous Condition no longer exists (but not with respect to more than
180 days in the aggregate nor involving more than 90 consecutive days during
any 12-month period) cause such registration statement to be withdrawn and the
effectiveness of such registration statement to be terminated, suspend the use
of the prospectus contained therein, or if no registration statement has yet
been filed, elect not to file such registration statement. If the Company
determines to take any action pursuant to the preceding sentence, the Company
shall deliver a notice to any Holder of Registrable Warrants covered or to be
covered under such withdrawn, suspended or not to be filed registration
statement, which indicates that the registration statement is no longer
effective or will not be filed. Upon the receipt of any such notice, such
Holder(s) in the case of an effective registration statement shall forthwith
discontinue their use and any dissemination of the prospectus contained in such
registration statement. If any Disadvantageous Condition shall cease to exist,
the Company shall promptly notify any Holders, who shall have ceased selling
Registrable Warrants pursuant to an effective registration statement as a
result of such Disadvantageous Condition, indicating such cessation. The
Company shall, if any registration statement required to be filed or maintained
under this Agreement has been withdrawn, suspended or not filed, file promptly,
at such time as it in good ▇▇▇▇▇ ▇▇▇▇▇ appropriate, an amended, supplemented or
new registration statement, as applicable, covering the Registrable Warrants
that were covered by such withdrawn registration statement or to be covered by
such unfiled registration statement.
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6. Expenses. The Company shall pay all Expenses in connection with
any registration initiated pursuant to Section 2 or 3 hereof, whether or not
such registration shall become effective.
7. Registration Procedures. If and whenever the Company is required
to effect any registration under the Securities Act as provided in and subject
to the provisions of Sections 2 and 3 hereof, the Company shall, as
expeditiously as possible:
a. expeditiously prepare and file with the Commission the
requisite registration statement to effect such registration
and thereafter use its reasonable best efforts to cause such
registration statement to become effective; provided, however,
that the Company may discontinue any registration of its
securities that are not Registrable Warrants (and, under the
circumstances specified in Sections 4 and 7(b) hereof, its
securities that are Registrable Warrants) at any time prior to
the effective date of the registration statement relating
thereto;
b. prepare and file with the Commission such amendments
and supplements to such registration statement and the
prospectus used in connection therewith as may be necessary to
keep such registration statement effective and to comply with
the provisions of the Securities Act with respect to the
offering of all Registrable Warrants covered by such
registration statement until such time as all of such
Registrable Warrants have been disposed of during the
applicable period in accordance with the method of disposition
set forth in such registration statement or, with respect to a
Shelf Registration, the expiration of the Effectiveness
Period;
c. furnish to each seller of Registrable Warrants covered
by any registration statement provided for hereunder such
reasonable number of copies of such drafts and final conformed
versions of such registration statement and of each such
amendment and supplement thereto (in each case including all
exhibits), such reasonable number of copies of such drafts and
final versions of the prospectus contained in such
registration statement (including each preliminary prospectus
and any summary prospectus) and any other prospectus filed
under Rule 424 under the Securities Act, and such other
documents, as such seller may reasonably request in writing;
d. use its best efforts (i) to file such applications and
documents to register or qualify all Registrable Warrants and
other securities covered by such registration statement under
such other securities or blue sky laws of such states or other
jurisdictions of the United States of America as the sellers
of Registrable Warrants covered by such registration statement
shall reasonably request in writing, (ii) to keep such
registration or qualification in effect for so long as such
registration statement remains in effect and (iii) to take any
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other action that may be reasonably necessary or
advisable to enable such sellers to consummate the disposition
in such jurisdictions of the securities to be sold by such
sellers, except that the Company shall not for any such
purpose be required to qualify generally to do business as a
foreign corporation in any jurisdiction wherein it would not
but for the requirements of this subsection (d) be obligated
to be so qualified, to subject itself to taxation in such
jurisdiction or to consent to general service of process in
any such jurisdiction;
e. use its best efforts to cause all Registrable Warrants
covered by such registration statement to be registered with
or approved by such other federal or state governmental
agencies or authorities as may be necessary in the opinion of
counsel to the Company and counsel to the seller or sellers of
Registrable Warrants to enable the sellers thereof to
consummate the offering of such Registrable Warrants;
f. use its best efforts to obtain and, if obtained,
furnish a copy to each seller of Registrable Warrants, and
each such seller's underwriters, if any, of
i. an opinion of counsel for the Company, dated
the effective date of such registration statement
(and, if such registration involves an underwritten
offering, dated the date of the closing under the
underwriting agreement), reasonably satisfactory in
form and substance to counsel to the Holders chosen
by Holders of a majority of the Registrable Warrants
being registered, and
ii. a "comfort" letter, dated the effective date of
such registration statement (and, if such
registration involves an underwritten offering, dated
the date of the closing under the underwriting
agreement) and signed by the independent public
accountants who have certified the Company's
financial statements included or incorporated by
reference in such registration statement, reasonably
satisfactory in form and substance to counsel to the
Holders chosen by Holders of a majority of the
aggregate principal amount of Registrable Warrants
being registered,
in each case, covering substantially the same matters with
respect to such registration statement (and the prospectus
included therein) and, in the case of the accountants' comfort
letter, with respect to events subsequent to the date of such
financial statements and matters contained in such
registration statement, as are customarily covered in opinions
of issuer's counsel and in accountants' comfort letters
delivered to underwriters in underwritten Public Offerings
of like securities;
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g. notify the sellers of Registrable Warrants (providing,
if requested by any such Persons, confirmation in writing) as
soon as practicable after becoming aware of: (A) the filing
of any prospectus or prospectus supplement of the filing or
effectiveness (or anticipated date of effectiveness) of such
registration statement or any post-effective amendment
thereto; (B) any request by the Commission for amendments or
supplements to such registration statement or the related
prospectus or for additional information; (C) the issuance by
the Commission of any stop order suspending the effectiveness
of such registration statement or the initiation of any
proceedings for such purpose; (D) the receipt by the Company
of any notification with respect to the suspension of the
qualification or registration (or exemption therefrom) of any
Registrable Warrants for sale in any jurisdiction in the
United States or the initiation or threatening of any
proceeding for such purposes; or (E) the happening of any
event that makes any statement made in such registration
statement or in any related prospectus, prospectus supplement,
amendment or document incorporated therein by reference untrue
in any material respect or that requires the making of any
changes in such registration statement or in any such
prospectus, supplement, amendment or other such document so
that it will not contain any untrue statement of a material
fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein (in the
case of any prospectus in the light of the circumstances under
which they were made) not misleading;
h. otherwise comply with all applicable rules and
regulations of the Commission and any other governmental
agency or authority having jurisdiction over the offering, and
make available to its security holders, as soon as reasonably
practicable, an earnings statement covering the period of at
least twelve months, but not more than eighteen months,
beginning with the first full calendar month after the
effective date of such registration statement, which earnings
statement shall satisfy the provisions of section 11(a) of
the Securities Act and Rule 158 promulgated thereunder, and
furnish to each seller of Registrable Warrants at least three
Business Days prior to the filing thereof a copy of any
amendment or supplement to such registration statement or
prospectus;
i. obtain a CUSIP number for all Registrable Warrants;
j. enter into customary agreements and take all such other
reasonable actions in connection therewith in order to
expedite or facilitate the disposition of the Registrable
Warrants included in such registration statement;
k. make every reasonable effort to obtain the withdrawal
of any order or other action suspending the effectiveness of
any such registration statement or
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suspending the qualification or registration (or
exemption therefrom) of the Registrable Warrants for sale in
any jurisdiction; and
l. if any event described in subsection (g) hereto occurs,
use its best efforts to cooperate with the Commission to
prepare, as soon as practicable, any amendment or supplement
to such registration statement or such related prospectus and
any other additional information, or to take other action that
may have been requested by the Commission.
It shall be a condition precedent to the obligations of the Company to
take action pursuant to this Agreement that the selling Holders
furnish to the Company such information regarding themselves and the
Registrable Warrants held by them, and the intended methods of
disposition of such securities, as shall be required to effect the
registration and sale of their Registrable Warrants.
In the case of a registration pursuant to this Agreement (including
any registration under Section 4 hereof), each Holder agrees that as
of the date that a final prospectus is made available to it for
distribution to prospective purchasers of Registrable Warrants it
shall cease to distribute copies of any preliminary prospectus
prepared in connection with the offer and sale of such Registrable
Warrants. Each Holder further agrees that, upon receipt of any notice
from the Company of the happening of any event of the kind described
in subsection (g) of this Section 7, such Holder shall forthwith
discontinue such Holder's disposition of Registrable Warrants pursuant
to the registration statement relating to such Registrable Warrants
until such Holder's receipt of the copies of the supplemented or
amended prospectus contemplated by subsection (l) of this Section 7
and, if so directed by the Company, shall deliver to the Company (at
the Company's expense) all copies, other than permanent file copies,
then in such Holder's possession of the prospectus relating to such
Registrable Warrants current at the time of receipt of such notice.
8. Underwritten Offerings.
a. Requested Underwritten Offerings. If requested by the
underwriters (if any) in connection with a registration under
Section 2 or 3 hereof, the Company shall enter into a firm
commitment underwriting agreement with such underwriters for
such offering, such agreement to be reasonably satisfactory in
substance and form to the Company, a majority of the Holders
whose Registrable Warrants are included in such registration,
and the underwriters, and to contain such representations and
warranties by the Company and such other terms as are
generally prevailing in agreements of that type, including,
without limitation, indemnification and contribution to the
effect and to the extent provided in Section 10 hereof.
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b. Selection of Underwriters. The underwriter or
underwriters of each underwritten offering, if any, of the
Registrable Warrants to be registered pursuant to Section 2, 3
or 4 hereof (i) shall be a nationally recognized underwriter
(or underwriters), (ii) shall be selected by the Holders
owning at least a majority of the aggregate Registrable
Warrants being sold in any such underwritten offering and
(iii) shall be reasonably acceptable to the Company or PSF, as
the case may be.
c. Piggyback Underwritten Offerings; Priority. If the
Company or PSF proposes to register any of its securities
under the Securities Act (whether pursuant to registration
rights afforded to holders of securities other than
Registrable Warrants or otherwise) and the Holders exercise
piggyback rights pursuant to Section 4 hereof with respect to
such registration and any such securities are to be
distributed by or through one or more underwriters, the
Company shall use reasonable efforts to arrange for such
underwriters to include all of the Registrable Warrants to be
offered and sold by the Holders thereof among the securities
of the Company to be distributed by such underwriters;
provided, that, notwithstanding any other provision herein
contained, if the managing underwriter of such underwritten
offering shall advise the Company in writing (with a copy to
the Holders) that the inclusion of the Registrable Warrants in
such registration would materially and adversely affect the
success of such offering, then the number of Registrable
Warrants to be included shall be reduced, pro rata, to the
extent necessary to reduce the Registrable Warrants to the
number recommended by the underwriter (which amount may be
zero); provided, however, that in the event that any holders
of securities other than Registrable Warrants holding
piggyback rights with respect to any registration have invoked
such rights with respect to a registration as to which the
holders of Registrable Warrants have also requested inclusion
pursuant to Section 4 hereof, and the underwriter does not
object to the inclusion of the Registrable Warrants on the
basis of the character of such securities, but only on the
volume of securities to be included, any cutback of the
Registrable Warrants shall be no less favorable to the
Registrable Warrants than on a pro rata basis with any cutback
of any such other securities holding piggyback rights.
d. Holders of Registrable Warrants to be Parties to
Underwriting Agreement. The Holders of Registrable Warrants
to be distributed by underwriters in an underwritten offering
contemplated by subsections (a) or (b) of this Section 8 shall
be parties to the underwriting agreement between the Company,
PSF, if applicable, and such underwriters and any such Holder,
at its option, may require that any or all of the
representations and warranties by, and the other agreements on
the part of, the Company to and for the benefit of the
underwriters be made to and for the benefit of such Holders
and that any or all of the conditions precedent to the
obligations of such underwriters under
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such underwriting agreement be
conditions precedent to the obligations of
such Holders. No such Holder shall be
required to make any representations or
warranties to or agreements with the Company,
PSF or the underwriters other than
representations, warranties or agreements
regarding such Holder, such Holder's
Registrable Warrants and such Holder's
intended method of distribution and
indemnification and contribution customary in
secondary offerings to the effect and to the
extent provided in Section 10 hereof.
e. Selection of Underwriters for Piggyback
Underwritten Offering. The underwriter or
underwriters of each piggyback underwritten
offering pursuant to this Section 8 shall be
a nationally recognized underwriter (or
underwriters) selected by the Company or, if
such underwritten offering is an offering of
securities of PSF, by PSF.
9. Preparation; Reasonable Investigation.
a. Registration Statements. In connection with
the preparation and filing of each
registration statement under the Securities
Act pursuant to this Agreement, the Company
shall give each holder of Registrable
Warrants registered under such registration
statement, the underwriters, if any, and its
respective counsel and accountants the
reasonable opportunity to participate in the
preparation of such registration statement,
each prospectus included therein or filed
with the Commission, and each amendment
thereof or supplement thereto, and shall give
each of them such reasonable opportunities to
discuss the business of the Company with its
officers and the independent public
accountants who have certified its financial
statements as shall be necessary, in the
reasonable opinion of any such Holders' and
such underwriters' respective counsel, to
conduct a reasonable investigation within the
meaning of the Securities Act.
b. Confidentiality. Each Holder of Registrable
Warrants shall maintain the confidentiality
of any confidential information received from
or otherwise made available by the Company to
such Holder of Registrable Warrants pursuant
to this Agreement and identified in writing
by the Company as confidential and shall
enter into such confidentiality agreements as
the Company shall reasonably request.
Information that (i) is or becomes available
to a Holder of Registrable Warrants from a
public source, (ii) is disclosed to a Holder
of Registrable Warrants by a third-party
source whom the Holder of Registrable
Warrants reasonably believes has the right to
disclose such information or (iii) is or
becomes required to be disclosed by a Holder
of Registrable Warrants by law, including,
but not limited to, administrative or court
orders, shall not be deemed to be
confidential information for purposes of this
Agreement; provided, however, that to the
extent sufficient time is available prior to
such disclosure being required to
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be made pursuant to clause (iii)
hereof, the Holders of Registrable Warrants
shall promptly notify the Company of any
request for disclosure and any proposed
disclosure pursuant to such clause (iii).
The Holders of Registrable Warrants shall not
grant access, and the Company shall not be
required to grant access, to information
under this Section 9 to any Person who will
not agree to maintain the confidentiality (to
the same extent a Holder is required to
maintain the confidentiality) of any
confidential information received from or
otherwise made available to it by the Company
or the holders of Registrable Warrants under
this Agreement and identified in writing by
the Company as confidential.
10. Indemnification.
a. Indemnification by the Company. In
connection with any registration statement
filed by the Company pursuant to this
Agreement, the Company shall, and hereby
agrees to, indemnify and hold harmless, each
Holder of any Registrable Warrants covered by
such registration statement and each other
Person who participates as an underwriter in
the offering or sale of such securities and
each other Person, if any, who "controls" such
Holder or any such underwriter, and their
respective directors, officers and partners
within the meaning of section 15 of the
Securities Act and section 20 of the Exchange
Act (each, a "Company Indemnitee" for purposes
of this Section 10(a)), against any losses,
claims, damages, liabilities (or actions or
proceedings, whether commenced or threatened,
in respect thereof and whether or not such
indemnified party is a party thereto), joint
or several, and expenses, including, without
limitation, the reasonable fees, disbursements
and other charges of legal counsel and
reasonable out-of-pocket costs of
investigation, to which such Company
Indemnitee may become subject under the
Securities Act or otherwise (collectively, a
"Loss" or "Losses"), insofar as such Losses
arise out of or are based upon any untrue
statement or alleged untrue statement of any
material fact contained in any registration
statement under which such securities were
registered pursuant to this Agreement, any
preliminary prospectus, final prospectus or
summary prospectus contained therein, or any
amendment or supplement thereto (collectively,
"Offering Documents"), or any omission or
alleged omission to state therein a material
fact required to be stated therein or
necessary to make the statements therein in
the light of the circumstances in which they
were made not misleading; provided that the
Company shall not be liable in any such case
to the extent that any such Loss arises out of
or is based upon an untrue statement or
alleged untrue statement or omission or
alleged omission made in such Offering
Documents in reliance upon and in conformity
with written information furnished to the
Company expressly for use therein; and
provided, further, that the Company shall not
be liable to any Person including any Company
Indemnitee who participates in the
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offering or sale of Registrable Warrants
or any other Person, if any, who controls such
Person including any Company Indemnitee, in
any such case to the extent that any such Loss
arises out of such Person's failure to send or
give a copy of the final prospectus (including
any documents incorporated by reference
therein), as the same may be then supplement
or amended, to the Person asserting an untrue
statement or alleged untrue statement or
omission or alleged omission at or prior to
the written confirmation of the sale of
Registrable Warrants to such person if such
statement or omission was corrected in such
final prospectus. Such indemnity shall remain
in full force and effect regardless of any
investigation made by or on behalf of such
Company Indemnitee and shall survive the
transfer of such securities by such Company
Indemnitee.
b. Indemnification by the Offerors and Sellers.
In connection with any registration statement
filed by the Company pursuant to this
Agreement in which a Holder has registered
for sale Registrable Warrants, each such
Holder of Registrable Warrants shall,
severally, but not jointly, and hereby agrees
to, indemnify and hold harmless the Company,
PSF, with respect to any offering of PSF
securities as to which the Holders have
exercised piggyback rights, and each of its
respective directors, officers, members and
partners, each other Person who participates
as an underwriter in the offering or sale of
such securities, each other Person, if any,
who controls the Company or PSF, as
applicable, any such underwriter and such
underwriter's directors, officers,
stockholders and partners (each a "Holder
Indemnitee" for purposes of this Section
10(b)), against all Losses insofar as such
Losses arise out of or are based upon any
untrue statement or alleged untrue statement
of a material fact contained in any Offering
Documents (or any document incorporated by
reference therein) or any omission or alleged
omission to state therein a material fact
required to be stated therein or necessary to
make the statements therein in the light of
circumstances in which they were made not
misleading, if such untrue statement or
alleged untrue statement or omission or
alleged omission was made in reliance upon
and in conformity with written information
furnished to the Company expressly for use
therein; provided, however, that the
liability of such indemnifying party under
this Section 10(b) shall be limited to the
amount of the net proceeds received by such
indemnifying party in the offering giving
rise to such liability. Such indemnity shall
remain in full force and effect, regardless
of any investigation made by or on behalf of
the Holder Indemnitee and shall survive the
transfer of such securities by such Holder.
c. Notices of Losses, etc. Promptly after
receipt by an indemnified party of notice of
the commencement of any action or proceeding
involving a Loss referred to in the preceding
subsections of this Section 10, such
indemnified party will, if a claim in respect
thereof is to be made against an indemnifying
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party, give written notice to the
latter of the commencement of such action;
provided, however, that the failure of any
indemnified party to give notice as provided
herein shall not relieve the indemnifying
party of its obligations under the preceding
subsections of this Section 10, except to the
extent that the indemnifying party is
actually prejudiced by such failure to give
notice. In case any such action is brought
against an indemnified party, the
indemnifying party shall be entitled to
participate in and, unless in such
indemnified party's reasonable judgment a
conflict of interest between such indemnified
and indemnifying parties may exist in respect
of such Loss, to assume and control the
defense thereof, in each case at its own
expense, jointly with any other indemnifying
party similarly notified, to the extent that
it may wish, with counsel reasonably
satisfactory to such indemnified party, and
after notice from such indemnifying party of
its assumption of the defense thereof, the
indemnifying party shall not be liable to
such indemnified party for any legal or other
expenses subsequently incurred by the latter
in connection with the defense thereof other
than reasonable costs of investigation. No
indemnifying party shall be liable for any
settlement of any such action or proceeding
effected without its written consent, which
shall not be unreasonably withheld. No
indemnifying party shall, without the consent
of the indemnified party, consent to entry of
any judgment or enter into any settlement
which does not include as an unconditional
term thereof the giving by the claimant or
plaintiff to such indemnified party of a
release from all liability in respect of such
Loss or which requires action on the part of
such indemnified party or otherwise subjects
the indemnified party to any obligation or
restriction to which it would not otherwise
be subject.
d. Contribution. If the indemnification
provided for in this Section 10 shall for any
reason be unavailable to an indemnified party
under subsection (a) or (b) of this Section 10
in respect of any Loss, then, in lieu of the
amount paid or payable under subsection (a) or
(b) of this Section 10, the indemnified party
and the indemnifying party under subsection
(a) or (b) of this Section 10 shall contribute
to the aggregate Losses (including legal or
other expenses reasonably incurred in
connection with investigating the same) (i) in
such proportion as is appropriate to reflect
the relative fault of the Company (or PSF) and
the prospective sellers of Registrable
Warrants covered by the registration statement
which resulted in such Loss or action in
respect thereof, as well as any other relevant
equitable considerations, or (ii) if the
allocation provided by clause (i) above is not
permitted by applicable law, in such
proportion as shall be appropriate to reflect
the relative benefits received by the Company
or PSF, on the one hand, and such prospective
sellers, on the other hand, from their sale of
Registrable Warrants; provided that for
purposes of this clause (ii), the relative
benefits received by the prospective sellers
shall be deemed not to exceed the amount
received by such sellers. No Person guilty of
fraudulent misrepresentation (within the
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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.
The obligations, if any, of the selling
holders of Registrable Warrants to contribute
as provided in this subsection (d) are several
in proportion to the relative value of their
respective Registrable Warrants covered by
such registration statement and not joint. In
addition, no Person shall be obligated to
contribute hereunder any amounts in payment
for any settlement of any action or Loss
effected without such Person's consent.
e. Other Indemnification. The Company and, in
connection with any registration statement
filed by the Company pursuant to Section 2,
each Holder shall, and, in connection with
any registration statement filed by the
Company pursuant to Section 3 or 4, each
Holder who has registered for sale
Registrable Warrants, shall, with respect to
any required registration or other
qualification of securities under any Federal
or state law or regulation of any
governmental authority other than the
Securities Act, indemnify Holder Indemnitees
and Company Indemnitiees, respectively,
against Losses, or, to the extent that
indemnification shall be unavailable to a
Holder Indemnitee or Company Indemnitee in a
manner similar to that specified in the
preceding subsections of this Section 10
(with appropriate modifications).
f. Indemnification Payments. The
indemnification and contribution required by
this Section 10 shall be made by periodic
payments of the amount thereof during the
course of any investigation or defense, as
and when bills are received or any Loss is
incurred.
11. Registration Rights to Others.
If the Company shall at any time hereafter provide to any holder of
any securities of the Company rights with respect to the registration of such
securities under the Securities Act or the Exchange Act, such rights shall not
be in conflict with or adversely affect any of the rights provided in this
Agreement to the holders of Registrable Warrants.
12. Adjustments Affecting Registrable Warrants.
The Company shall not effect or permit to occur any combination,
subdivision or reclassification of Registrable Warrants that would materially
adversely affect the ability of the Holders to include such Registrable
Warrants in any registration of its securities under the Securities Act
contemplated by this Agreement.
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13. Rule 144 and Rule 144A.
The Company hereby agrees that (i) at any time it is not subject to
the requirements of section 13 or Section 15(d) of the Exchange Act and there
remain outstanding any Registrable Warrants, (A) it shall make available to any
Holder upon written request such information as may be required under Rule
144(A)(d)(4) to permit resales of such Registrable Warrants pursuant to Rule
144A under the Securities Act and (B) it shall make publicly available such
information concerning the Company specified in paragraphs (a)(5)(i) through
and including (a)(5)(xiv) and in paragraph (a)(5)(xvi) of Rule 15c2-11 under
the Exchange Act to permit resales of such Registrable Warrants pursuant to
Rule 144 under the Securities Act; and (ii) during such times the Company is
subject to the requirements of section 13 or section 15(d) of the Exchange Act
and there remain outstanding any Registrable Warrants, it shall timely file the
periodic and other reports referred to in paragraph (c)(1) of Rule 144 to
permit resales of such Registrable Warrants pursuant to Rule 144 under the
Securities Act.
Without limiting the generality of the preceding paragraph, the
Company hereby agrees to take all such further actions as any Holder of
Registrable Warrants reasonably may request, to the extent required to enable
such Holder to resell its Registrable Warrants without registration under the
Securities Act within the limitation of the exemptions therefrom provided by
Rule 144A and Rule 144 under the Securities Act, as such Rules may be amended
from time to time, or any similar Rule or Regulation hereafter promulgated by
the Commission. Upon the reasonable request of any Holder of Registrable
Warrants, the Company shall deliver to such Holder written notice as to whether
it has complied with such informational and other requirements.
14. Amendments and Waivers.
Except as otherwise provided herein, the provisions of this Agreement
may not be amended, modified or supplemented, and waivers or consents to
departures from the provisions hereof may not be given unless the Company shall
have obtained the prior written consent of the Holders of at least 66 2/3% of
the aggregate principal amount of Registrable Warrants affected by such
amendment, modification or waiver.
15. Nominees for Beneficial Owners.
In the event that any Registrable Warrant is held by a nominee for the
beneficial owner thereof, the beneficial owner thereof may, at its election in
writing delivered to Company, be treated as the Holder of such Registrable
Warrant for purposes of any request or other action by any Holder or Holders
pursuant to this Agreement or any determination of the number or percentage of
principal amount of Registrable Warrants held by any Holder or Holders
contemplated by this Agreement. If the beneficial owner of any Registrable
Warrants so elects, the Company may require assurances reasonably satisfactory
to it of such owner's beneficial ownership of such Registrable Warrants.
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16. Assignment.
The provisions of this Agreement shall be binding upon and inure to
the benefit of the parties hereto and their respective heirs, successors and
assigns including any successor-by-merger of the Company. Any Holder may
assign to any permitted transferee of its Registrable Warrants its rights and
obligation under this Agreement, provided that such transferee shall agree in
writing with the parties hereto prior to the assignment to be bound by this
Agreement as if it were an original party hereto, whereupon such assignee shall
for all purposes be deemed to be a Holder under this Agreement.
17. Calculation of Percentage of Principal Amount of Registrable
Warrants.
For purposes of this Agreement, all references to an aggregate
principal amount of Registrable Warrants or a percentage thereof shall be
calculated based upon the aggregate number of Registrable Warrants outstanding
at the time such calculation is made and shall exclude any Registrable Warrants
or Warrants, as the case may be, owned by the Company or any subsidiary of the
Company.
18. Miscellaneous.
a. Further Assurances. Each of the parties
hereto shall execute such documents and other
papers and perform such further acts as may
be reasonably required or desirable to carry
out the provisions of this Agreement and the
transactions contemplated hereby.
b. Headings. The Headings in this Agreement are
for convenience of reference only and shall
not control or affect the meaning or
construction of any provisions hereof.
c. No Inconsistent Agreements. The Company will
not hereafter enter into any agreement with
respect to any of its securities that contain
provisions that conflict with the provisions
hereof in any material respect.
d. Remedies. Each Holder, in addition to being
entitled to exercise all rights granted by
law, including recovery of damages, will be
entitled to specific performance of its
rights under this Agreement. The Company
agrees that monetary damages would not be
adequate compensation for any loss incurred
by reason of a breach by it of the provisions
of this Agreement and the Company hereby
agrees to waive the defense in any action for
specific performance that a remedy at law
would be adequate.
e. Entire Agreement. This Agreement constitutes
the entire agreement and understanding of the
parties hereto in respect of the subject
matter contained herein, and there are no
restrictions, promises, representations,
warranties,
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covenants, or undertakings with respect to the
subject matter hereof, other than those
expressly set forth or referred to herein.
This Agreement supersedes all prior agreements
and undertakings between the parties hereto
with respect to the subject matter hereof.
f. Notices. Any notices or other communications
to be given hereunder by any party to another
party shall be in writing, shall be delivered
personally, by telecopy, by certified or
registered mail, postage prepaid, return
receipt requested, or by Federal Express or
other comparable delivery service, to the
address of the party set forth on Schedule I
hereto or to such other address as the party
to whom notice is to be given may provide in
a written notice to the other parties hereto,
a copy of which shall be on file with the
Secretary of the Company. Notice shall be
effective when delivered if given personally,
when receipt is acknowledged if telecopied,
three days after mailing if given by
registered or certified mail as described
above, and one business day after deposit if
given by Federal Express or comparable
delivery service.
g. Governing Law. This Agreement shall be
governed by and construed in accordance with
the laws of the State of New York applicable
to agreements made to be performed entirely
in such State, without regard to principles
of conflicts of law. The Company and the
parties each hereby irrevocably submit to the
jurisdiction of any New York or any Federal
Court sitting in the City of New York in
respect of any suit, action or proceeding
arising out of or relating to this Agreement,
and each irrevocably accepts for itself and
in respect of its property, generally and
unconditionally, the jurisdiction of the
aforesaid courts. Nothing herein shall
affect the right of any party to serve
process in any manner permitted by law or to
commence legal proceedings or otherwise
proceed against the Company in any other
jurisdiction.
h. Severability. If one or more of the
provisions contained herein, or the
application thereof in any circumstance, is
held invalid, illegal or unenforceable in any
respect, for any reason, the validity,
legality and enforceability of the remaining
provisions contained herein shall not be in
any way affected or impaired thereby, and the
provision held to be invalid, illegal or
unenforceable shall be reformed to the
minimum extent necessary, and in a manner as
consistent with the purposes thereof as is
practicable, so as to render it valid, legal
and enforceable, it being intended that all
rights and obligations of the parties
hereunder shall be enforceable to the fullest
extent permitted by law.
i. Counterparts. This Agreement may be
executed in two or more counterparts, each of
which shall be deemed an original but all of
which shall constitute one and the same
Agreement.
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IN WITNESS WHEREOF, the Company has executed this Warrants
Registration Rights Agreement as of the date first above written.
PSF HOLDINGS, L.L.C.
By /s/ ▇.▇. ▇▇▇▇▇▇▇▇▇
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Name:
Title:
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