Exhibit
4.12
STANDBY EQUITY DISTRIBUTION
AGREEMENT
THIS AGREEMENT dated as of the ___ day of August 2005 (the "
Agreement ") between CORNELL CAPITAL PARTNERS, LP , a
Delaware limited partnership (the " Investor "), and
SONORAN ENERGY, INC. , a corporation organized and existing
under the laws of the State of Washington (the " Company
").
WHEREAS , the parties desire that, upon the terms and subject
to the conditions contained herein, the Company shall issue and
sell to the Investor, from time to time as provided herein, and the
Investor shall purchase from the Company up to Fifteen Million
Dollars ($15,000,000) of the Company's common stock, no par
value per share (the " Common Stock "); and
WHEREAS , such investments will be made in reliance upon the
provisions of Regulation D (" Regulation D ") of the
Securities Act of 1933, as amended, and the regulations promulgated
thereunder (the " Securities Act "), and or upon such other
exemption from the registration requirements of the Securities Act
as may be available with respect to any or all of the investments
to be made hereunder.
WHEREAS , the Company has engaged Newbridge Securities
Corporation (the " Placement Agent "), to act as the
Company's exclusive placement agent in connection with the sale of
the Company's Common Stock to the Investor hereunder pursuant to
the Placement Agent Agreement dated the date hereof by and among
the Company, the Placement Agent and the Investor (the "
Placement Agent Agreement ").
NOW , THEREFORE , the parties hereto agree as
follows:
ARTICLE I.
Certain Definitions
Section 1.1
" Advance " shall mean the portion
of the Commitment Amount requested by the Company in the Advance
Notice.
Section 1.2
" Advance Date " shall mean the
date the David Gonzalez Attorney Trust Account is in receipt of the
funds from the Investor and David Gonzalez, Esq., is in possession
of free trading shares from the Company and therefore an Advance by
the Investor to the Company can be made and David Gonzalez, Esq.
can release the free trading shares to the Investor. The Advance
Date shall be the first (1 st ) Trading Day after
expiration of the applicable Pricing Period for each
Advance.
Section 1.3
" Advance Notice " shall mean a
written notice to the Investor setting forth the Advance amount
that the Company requests from the Investor and the Advance
Date.
Section 1.4
" Advance Notice Date " shall mean
each date the Company delivers to the Investor an Advance Notice
requiring the Investor to advance funds to the Company, subject to
the terms of this Agreement. No Advance Notice Date shall be
less than five (5) Trading Days after the prior Advance Notice
Date.
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Section 1.5
" Bid Price " shall mean, on any
date, the closing bid price (as reported by Bloomberg L.P.) of the
Common Stock on the Principal Market or if the Common Stock is not
traded on a Principal Market, the highest reported bid price for
the Common Stock, as furnished by the National Association of
Securities Dealers, Inc.
Section 1.6
" Closing " shall mean one of the
closings of a purchase and sale of Common Stock pursuant to Section
2.3.
Section 1.7
" Commitment Amount " shall mean
the aggregate amount of up to Fifteen Million Dollars ($15,000,000)
which the Investor has agreed to provide to the Company in order to
purchase the Company's Common Stock pursuant to the terms and
conditions of this Agreement.
Section 1.8
" Commitment Period " shall mean
the period commencing on the earlier to occur of (i) the Effective
Date, or (ii) such earlier date as the Company and the Investor may
mutually agree in writing, and expiring on the earliest to occur of
(x) the date on which the Investor shall have made payment of
Advances pursuant to this Agreement in the aggregate amount of
Fifteen Million Dollars ($15,000,000), (y) the date this Agreement
is terminated pursuant to Section 2.4, or (z) the date occurring
twenty-four (24) months after the Effective Date.
Section 1.9
" Common Stock " shall mean the
Company's common stock, no par value per share.
Section 1.10
" Condition Satisfaction Date "
shall have the meaning set forth in Section 7.2.
Section 1.11
" Damages " shall mean any loss,
claim, damage, liability, costs and expenses (including, without
limitation, reasonable attorney's fees and disbursements and costs
and expenses of expert witnesses and investigation).
Section 1.12
" Effective Date " shall mean the
date on which the SEC first declares effective a Registration
Statement registering the resale of the Registrable Securities as
set forth in Section 7.2(a).
Section 1.13
" Escrow Agreement " shall mean
the escrow agreement among the Company, the Investor, and David
Gonzalez, Esq., dated the date hereof.
Section 1.14
" Exchange Act " shall mean the
Securities Exchange Act of 1934, as amended, and the rules and
regulations promulgated thereunder.
Section 1.15
" Material Adverse Effect " shall
mean any condition, circumstance, or situation that would prohibit
or otherwise materially interfere with the ability of the Company
to enter into and perform any of its obligations under this
Agreement or the Registration Rights Agreement in any material
respect.
Section 1.16
" Market Price " shall mean the
lowest VWAP of the Common Stock during the Pricing
Period.
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Section 1.17
" Maximum Advance Amount " shall
be Five Hundred Thousand Dollars ($500,000) per Advance
Notice.
Section 1.18
" NASD " shall mean the National
Association of Securities Dealers, Inc.
Section 1.19
" Person " shall mean an
individual, a corporation, a partnership, an association, a trust
or other entity or organization, including a government or
political subdivision or an agency or instrumentality
thereof.
Section 1.20
" Placement Agent " shall mean
Newbridge Securities Corporation, a registered
broker-dealer.
Section 1.21
" Pricing Period " shall mean the
five (5) consecutive Trading Days after the Advance Notice
Date.
Section 1.22
" Principal Market " shall mean
the Nasdaq National Market, the Nasdaq SmallCap Market, the
American Stock Exchange, the OTC Bulletin Board or the New York
Stock Exchange, whichever is at the time the principal trading
exchange or market for the Common Stock.
Section 1.23
" Purchase Price " shall be set at
one hundred percent (100%) of the Market Price during the Pricing
Period.
Section 1.24
" Registrable Securities " shall
mean the shares of Common Stock to be issued hereunder
(i) in respect of which the Registration
Statement has not been declared effective by the SEC, (ii) which
have not been sold under circumstances meeting all of the
applicable conditions of Rule 144 (or any similar provision then in
force) under the Securities Act (" Rule 144 ") or (iii)
which have not been otherwise transferred to a holder who may trade
such shares without restriction under the Securities Act, and the
Company has delivered a new certificate or other evidence of
ownership for such securities not bearing a restrictive
legend.
Section 1.25
" Registration Rights Agreement "
shall mean the Registration Rights Agreement dated the date hereof,
regarding the filing of the Registration Statement for the resale
of the Registrable Securities, entered into between the Company and
the Investor.
Section 1.26
" Registration Statement " shall
mean a registration statement on Form S-1 or SB-2 (if use of such
form is then available to the Company pursuant to the rules of the
SEC and, if not, on such other form promulgated by the SEC for
which the Company then qualifies and which counsel for the Company
shall deem appropriate, and which form shall be available for the
resale of the Registrable Securities to be registered thereunder in
accordance with the provisions of this Agreement and the
Registration Rights Agreement, and in accordance with the intended
method of distribution of such securities), for the registration of
the resale by the Investor of the Registrable Securities under the
Securities Act.
Section 1.27
" Regulation D " shall have the
meaning set forth in the recitals of this Agreement.
Section 1.28
" SEC " shall mean the Securities
and Exchange Commission.
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Section 1.29
" Securities Act " shall have the
meaning set forth in the recitals of this Agreement.
Section 1.30
" SEC Documents " shall mean
Annual Reports on Form 10-KSB, Quarterly Reports on Form 10-QSB,
Current Reports on Form 8-K and Proxy Statements of the Company as
supplemented to the date hereof, filed by the Company for a period
of at least twelve (12) months immediately preceding the date
hereof or the Advance Date, as the case may be, until such time as
the Company no longer has an obligation to maintain the
effectiveness of a Registration Statement as set forth in the
Registration Rights Agreement.
Section 1.31
" Trading Day " shall mean any day
during which the New York Stock Exchange shall be open for
business.
Section 1.32
" VWAP " shall mean the volume
weighted average price of the Company's Common Stock as quoted by
Bloomberg, LP.
ARTICLE II.
Advances
Section 2.1
Investments .
(a)
Advances . Upon the terms and conditions set forth
herein (including, without limitation, the provisions of Article
VII hereof), on any Advance Notice Date the Company may request an
Advance by the Investor by the delivery of an Advance Notice.
The number of shares of Common Stock that the Investor shall
receive for each Advance shall be determined by dividing the amount
of the Advance by the Purchase Price. No fractional shares
shall be issued. Fractional shares shall be rounded to the next
higher whole number of shares. The aggregate maximum amount
of all Advances that the Investor shall be obligated to make under
this Agreement shall not exceed the Commitment Amount.
Section 2.2
Mechanics .
(a)
Advance Notice . At any time during the Commitment Period, the
Company may deliver an Advance Notice to the Investor, subject to
the conditions set forth in Section 7.2; provided, however,
the amount for each Advance as designated by the Company in the
applicable Advance Notice, shall not be more than the Maximum
Advance Amount. The aggregate amount of the Advances pursuant
to this Agreement shall not exceed the Commitment Amount. The
Company acknowledges that the Investor may sell shares of the
Company's Common Stock corresponding with a particular Advance
Notice on the day the Advance Notice is received by the Investor.
There shall be a minimum of five (5) Trading Days between
each Advance Notice Date.
(b)
Date of Delivery of Advance
Notice . An Advance
Notice shall be deemed delivered on (i) the Trading Day it is
received by facsimile or otherwise by the Investor if such notice
is received prior to 12:00 noon Eastern Time, or (ii) the
immediately succeeding Trading Day if it is received by facsimile
or otherwise after 12:00 noon Eastern Time on a Trading Day or at
any time on a day which is not a Trading Day. No Advance
Notice may be deemed delivered on a day that is not a Trading
Day.
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Section 2.3
Closings . On each Advance Date, which shall be the
first (1 st ) Trading Day after expiration of the
applicable Pricing Period for each Advance, (i) the Company shall
deliver to David Gonzalez, Esq. (the " Escrow Agent ")
shares of the Company's Common Stock, representing the amount of
the Advance by the Investor pursuant to Section 2.1 herein,
registered in the name of the Investor which shall be delivered to
the Investor, or otherwise in accordance with the Escrow Agreement
and (ii) the Investor shall deliver to Escrow Agent the amount of
the Advance specified in the Advance Notice by wire transfer of
immediately available funds which shall be delivered to the
Company, or otherwise in accordance with the Escrow Agreement.
In addition, on or prior to the Advance Date, each of the
Company and the Investor shall deliver to the other through the
Investor's counsel, all documents, instruments and writings
required to be delivered by either of them pursuant to this
Agreement in order to implement and effect the transactions
contemplated herein. Payment of funds to the Company and
delivery of the Company's Common Stock to the Investor shall occur
in accordance with the conditions set forth above and those
contained in the Escrow Agreement; provided , however
, that to the extent the Company has not paid the fees, expenses,
and disbursements of the Investor, the Investor's counsel, or the
Company's counsel in accordance with Section 12.4, the amount of
such fees, expenses, and disbursements may be deducted by the
Investor (and shall be paid to the relevant party) from the amount
of the Advance with no reduction in the amount of shares of the
Company's Common Stock to be delivered on such Advance
Date.
Section 2.4
Termination of Investment
. The obligation of the Investor to
make an Advance to the Company pursuant to this Agreement shall
terminate permanently (including with respect to an Advance Date
that has not yet occurred) in the event that (i) there shall occur
any stop order or suspension of the effectiveness of the
Registration Statement for an aggregate of fifty (50) Trading Days,
other than due to the acts of the Investor, during the Commitment
Period, and (ii) the Company shall at any time fail materially to
comply with the requirements of Article VI and such failure is not
cured within thirty (30) days after receipt of written notice from
the Investor, provided , however , that this
termination provision shall not apply to any period commencing upon
the filing of a post-effective amendment to such Registration
Statement and ending upon the date on which such post effective
amendment is declared effective by the SEC.
Section 2.5
Agreement to Advance Funds
. The Investor agrees to advance
the amount specified in the Advance Notice to the Company after the
completion of each of the following conditions and the other
conditions set forth in this Agreement:
(a)
the execution and delivery by the
Company, and the Investor, of this Agreement and the Exhibits
hereto;
(b)
The Escrow Agent shall have received the
shares of Common Stock applicable to the Advance in accordance with
Section 2.3. Such shares shall be free of restrictive
legends.
(c)
the Company's Registration Statement with
respect to the resale of the Registrable Securities in accordance
with the terms of the Registration Rights Agreement shall have been
declared effective by the SEC;
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(d)
the Company shall have obtained all
material permits and qualifications required by any applicable
state for the offer and sale of the Registrable Securities, or
shall have the availability of exemptions therefrom. The sale
and issuance of the Registrable Securities shall be legally
permitted by all laws and regulations to which the Company is
subject;
(e)
the Company shall have filed with the
Commission in a timely manner all reports, notices and other
documents required of a "reporting company" under the Exchange Act
and applicable Commission regulations;
(f)
the fees as set forth in Section 12.4
below shall have been paid or can be withheld as provided in
Section 2.3; and
(g)
the conditions set forth in Section 7.2
shall have been satisfied.
(h)
the Company shall have provided to the
Investor an acknowledgement, from the Company's independent
certified public accountants as to its ability to provide all
consents required in order to file a registration statement in
connection with this transaction;
(i)
The Company's transfer agent shall be
DWAC eligible.
Section 2.6.
Lock Up Period . On the date hereof, the Company shall obtain
from each officer and director a lock-up agreement, as defined
below, in the form annexed hereto as Schedule 2.6 agreeing to
only sell in compliance with the volume limitation of Rule
144.
Section 2.7.
Hardship . In the event the Investor sells shares of the
Company's Common Stock after receipt of an Advance Notice and the
Company fails to perform its obligations as mandated in Section
2.3, and specifically the Company fails to deliver to the Escrow
Agent on the Advance Date the shares of Common Stock corresponding
to the applicable Advance, the Company acknowledges that the
Investor shall suffer financial hardship and therefore shall be
liable for any and all losses, commissions, fees, or financial
hardship caused to the Investor.
ARTICLE III.
Representations and Warranties of Investor
Investor hereby represents and warrants
to, and agrees with, the Company that the following are true and as
of the date hereof and as of each Advance Date:
Section 3.1
Organization and
Authorization . The
Investor is duly incorporated or organized and validly existing in
the jurisdiction of its incorporation or organization and has all
requisite power and authority to purchase and hold the securities
issuable hereunder. The decision to invest and the execution
and delivery of this Agreement by such Investor, the performance by
such Investor of its obligations hereunder and the consummation by
such Investor of the transactions contemplated hereby have been
duly authorized and requires no other proceedings on the part of
the Investor. The undersigned has the right, power and
authority to execute and deliver this Agreement and all other
instruments (including, without limitations, the Registration
Rights Agreement), on behalf of the Investor. This Agreement
has been duly executed and delivered by the Investor and, assuming
the execution and delivery hereof and
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acceptance thereof by the Company, will
constitute the legal, valid and binding obligations of the
Investor, enforceable against the Investor in accordance with its
terms.
Section 3.2
Evaluation of Risks
. The Investor has such knowledge
and experience in financial tax and business matters as to be
capable of evaluating the merits and risks of, and bearing the
economic risks entailed by, an investment in the Company and of
protecting its interests in connection with this transaction.
It recognizes that its investment in the Company involves a
high degree of risk.
Section 3.3
No Legal Advice From the
Company . The Investor
acknowledges that it had the opportunity to review this Agreement
and the transactions contemplated by this Agreement with his or its
own legal counsel and investment and tax advisors. The
Investor is relying solely on such counsel and advisors and not on
any statements or representations of the Company or any of its
representatives or agents for legal, tax or investment advice with
respect to this investment, the transactions contemplated by this
Agreement or the securities laws of any jurisdiction.
Section 3.4
Investment Purpose
. The securities are being purchased by
the Investor for its own account, and for investment purposes.
The Investor agrees not to assign or in any way transfer the
Investor's rights to the securities or any interest therein and
acknowledges that the Company will not recognize any purported
assignment or transfer except in accordance with applicable Federal
and state securities laws. No other person has or will have a
direct or indirect beneficial interest in the securities. The
Investor agrees not to sell, hypothecate or otherwise transfer the
Investor's securities unless the securities are registered under
Federal and applicable state securities laws or unless, in the
opinion of counsel satisfactory to the Company, an exemption from
such laws is available.
Section 3.5
Accredited Investor
. The Investor is an "
Accredited Investor " as that term is defined in Rule
501(a)(3) of Regulation D of the Securities Act.
Section 3.6
Information . The Investor and its advisors (and its
counsel), if any, have been furnished with all materials relating
to the business, finances and operations of the Company and
information it deemed material to making an informed investment
decision. The Investor and its advisors, if any, have been
afforded the opportunity to ask questions of the Company and its
management. Neither such inquiries nor any other due
diligence investigations conducted by such Investor or its
advisors, if any, or its representatives shall modify, amend or
affect the Investor's right to rely on the Company's
representations and warranties contained in this Agreement.
The Investor understands that its investment involves a high
degree of risk. The Investor is in a position regarding the
Company, which, based upon employment, family relationship or
economic bargaining power, enabled and enables such Investor to
obtain information from the Company in order to evaluate the merits
and risks of this investment. The Investor has sought such
accounting, legal and tax advice, as it has considered necessary to
make an informed investment decision with respect to this
transaction.
Section 3.7
Receipt of Documents
. The Investor and its counsel have
received and read in their entirety: (i) this Agreement and
the Exhibits annexed hereto; (ii) all due diligence and other
information necessary to verify the accuracy and completeness of
such representations,
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warranties and covenants; (iii) the
Company's Form 10-KSB for the year ended April 30, 2004 and Form
10-QSB for the period ended January 31, 2005; and (iv) answers
to all questions the Investor submitted to the Company regarding an
investment in the Company; and the Investor has relied on the
information contained therein and has not been furnished any other
documents, literature, memorandum or prospectus.
Section 3.8
Registration Rights Agreement and
Escrow Agreement . The
parties have entered into the Registration Rights Agreement and the
Escrow Agreement, each dated the date hereof.
Section 3.9
No General Solicitation
. Neither the Company, nor any of
its affiliates, nor any person acting on its or their behalf, has
engaged in any form of general solicitation or general advertising
(within the meaning of Regulation D under the Securities Act) in
connection with the offer or sale of the shares of Common Stock
offered hereby.
Section 3.10
Not an Affiliate
. The Investor is not an officer,
director or a person that directly, or indirectly through one or
more intermediaries, controls or is controlled by, or is under
common control with the Company or any " Affiliate " of the
Company (as that term is defined in Rule 405 of the Securities
Act).
Section 3.11
Trading Activities
. The Investor's trading activities
with respect to the Company's Common Stock shall be in compliance
with all applicable federal and state securities laws, rules and
regulations and the rules and regulations of the Principal Market
on which the Company's Common Stock is listed or traded.
Neither the Investor nor its affiliates has an open short
position in the Common Stock of the Company and the Investor agrees
that it shall not, and that it will cause its affiliates not to,
engage in any short sales of or hedging transactions with respect
to the Common Stock, provided that the Company acknowledges
and agrees that upon receipt of an Advance Notice the Investor has
the right to sell the shares to be issued to the Investor pursuant
to the Advance Notice during the applicable Pricing Period.
ARTICLE IV.
Representations and Warranties of the Company
Except as stated below, on the disclosure
schedules attached hereto or in the SEC Documents (as defined
herein), the Company hereby represents and warrants to, and
covenants with, the Investor that the following are true and
correct as of the date hereof:
Section 4.1
Organization and
Qualification . The
Company is duly incorporated or organized and validly existing in
the jurisdiction of its incorporation or organization and has all
requisite corporate power to own its properties and to carry on its
business as now being conducted. Each of the Company and its
subsidiaries is duly qualified as a foreign corporation to do
business and is in good standing in every jurisdiction in which the
nature of the business conducted by it makes such qualification
necessary, except to the extent that the failure to be so qualified
or be in good standing would not have a Material Adverse Effect on
the Company and its subsidiaries taken as a whole.
Section 4.2
Authorization, Enforcement, Compliance
with Other Instruments .
(i) The Company has the requisite corporate power and
authority to enter into and perform this
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Agreement, the Registration Rights
Agreement, the Escrow Agreement, the Placement Agent Agreement and
any related agreements, in accordance with the terms hereof and
thereof, (ii) the execution and delivery of this Agreement, the
Registration Rights Agreement, the Escrow Agreement, the Placement
Agent Agreement and any related agreements by the Company and the
consummation by it of the transactions contemplated hereby and
thereby, have been duly authorized by the Company's Board of
Directors and no further consent or authorization is required by
the Company, its Board of Directors or its stockholders,
(iii) this Agreement, the Registration Rights Agreement, the
Escrow Agreement, the Placement Agent Agreement and any related
agreements have been duly executed and delivered by the Company,
(iv) this Agreement, the Registration Rights Agreement, the Escrow
Agreement, the Placement Agent Agreement and assuming the execution
and delivery thereof and acceptance by the Investor and any related
agreements constitute the valid and binding obligations of the
Company enforceable against the Company in accordance with their
terms, except as such enforceability may be limited by general
principles of equity or applicable bankruptcy, insolvency,
reorganization, moratorium, liquidation or similar laws relating
to, or affecting generally, the enforcement of creditors' rights
and remedies.
Section 4.3
Capitalization . As of the date hereof, the authorized capital
stock of the Company consists of 75,000,000 shares of Common Stock,
and 25,000,000 shares of Preferred Stock, $___ par value per share
(" Preferred Stock "), of which ________ shares of Common
Stock and _________ shares of Preferred Stock were issued and
outstanding. All of such outstanding shares have been validly
issued and are fully paid and nonassessable. Except as
disclosed in the SEC Documents, no shares of Common Stock are
subject to preemptive rights or any other similar rights or any
liens or encumbrances suffered or permitted by the Company.
Except as disclosed in the SEC Documents, as of the date
hereof, (i) there are no outstanding options, warrants, scrip,
rights to subscribe to, calls or commitments of any character
whatsoever relating to, or securities or rights convertible into,
any shares of capital stock of the Company or any of its
subsidiaries, or contracts, commitments, understandings or
arrangements by which the Company or any of its subsidiaries is or
may become bound to issue additional shares of capital stock of the
Company or any of its subsidiaries or options, warrants, scrip,
rights to subscribe to, calls or commitments of any character
whatsoever relating to, or securities or rights convertible into,
any shares of capital stock of the Company or any of its
subsidiaries, (ii) there are no outstanding debt securities
( iii) there are no outstanding registration statements
other than on Form S-8 and (iv) there are no agreements or
arrangements under which the Company or any of its subsidiaries is
obligated to register the sale of any of their securities under the
Securities Act (except pursuant to the Registration Rights
Agreement). There are no securities or instruments containing
anti-dilution or similar provisions that will be triggered by this
Agreement or any related agreement or the consummation of the
transactions described herein or therein. The Company has
furnished to the Investor true and correct copies of the Company's
Certificate of Incorporation, as amended and as in effect on the
date hereof (the " Certificate of Incorporation "), and the
Company's By-laws, as in effect on the date hereof (the "
By-laws "), and the terms of all securities convertible into
or exercisable for Common Stock and the material rights of the
holders thereof in respect thereto.
Section 4.4
No Conflict . The execution, delivery and performance of
this Agreement by the Company and the consummation by the Company
of the transactions contemplated hereby will not (i) result in a
violation of the Certificate of Incorporation, any certificate of
designations
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of any outstanding series of preferred
stock of the Company or By-laws or (ii) conflict with or constitute
a default (or an event which with notice or lapse of time or both
would become a default) under, or give to others any rights of
termination, amendment, acceleration or cancellation of, any
agreement, indenture or instrument to which the Company or any of
its subsidiaries is a party, or result in a violation of any law,
rule, regulation, order, judgment or decree (including federal and
state securities laws and regulations and the rules and regulations
of the Principal Market on which the Common Stock is quoted)
applicable to the Company or any of its subsidiaries or by which
any material property or asset of the Company or any of its
subsidiaries is bound or affected and which would cause a Material
Adverse Effect. Except as disclosed in the SEC Documents,
neither the Company nor its subsidiaries is in violation of any
term of or in default under its Articles of Incorporation or
By-laws or their organizational charter or by-laws, respectively,
or any material contract, agreement, mortgage, indebtedness,
indenture, instrument, judgment, decree or order or any statute,
rule or regulation applicable to the Company or its subsidiaries.
The business of the Company and its subsidiaries is not being
conducted in violation of any material law, ordinance, regulation
of any governmental entity. Except as specifically
contemplated by this Agreement and as required under the Securities
Act and any applicable state securities laws, the Company is not
required to obtain any consent, authorization or order of, or make
any filing or registration with, any court or governmental agency
in order for it to execute, deliver or perform any of its
obligations under or contemplated by this Agreement or the
Registration Rights Agreement in accordance with the terms hereof
or the
