EXHIBIT 10.3
GOFISH CORPORATION
INVESTORS’ RIGHTS
AGREEMENT
THIS INVESTORS’ RIGHTS AGREEMENT (this
“ Agreement ”) is made as of December 3, 2008,
by and among GoFish Corporation, a Nevada corporation (the “
Company ”), and the stockholders of the Company listed
on Schedule A (each a “ Stockholder ” and
collectively the “ Stockholders ”).
RECITALS
A. The
Stockholders listed on Schedule A hereto (the “
Investors ”) and the Company are parties to that
certain Securities Purchase Agreement, dated as of December 3, 2008
(the “ Purchase Agreement ”), relating to the
issue and sale of (i) shares of Series A Preferred Stock, par value
$0.001 per share, of the Company (the “ Series A Preferred
Stock ”), which shares are convertible into shares (the
“ Common Shares ”) of Common Stock, par value
$0.001 per share, of the Company (the “ Common Stock
”), and (ii) warrants (the “ Warrants ”)
to purchase shares of Common Stock (the “ Warrant
Shares ”). The number and type of securities
of the Company held by each Investor is set forth on Schedule
A hereto.
B. The
obligations of the Company and the Investors under the Purchase
Agreement are conditioned upon, among other things, the execution
and delivery of this Agreement by the Stockholders and the
Company.
NOW, THEREFORE, in consideration of the mutual
premises and covenants set forth herein, the parties hereto agree
as follows:
1. Registration
Rights
1.1 Definitions
For purposes of this Section 1, the following
terms shall have the following meanings:
“
Business Day ” means any day except Saturday, Sunday,
any day which is a federal legal holiday in the United States or
any day on which banking institutions in the State of California or
the State of New York are authorized or required by law or other
governmental action to close.
“ Commission ” means the
United States Securities and Exchange Commission.
“ Effectiveness Date ” means,
with respect to the Initial Registration Statement required to be
filed hereunder, the one hundred eightieth (180
th ) calendar day following the date hereof;
provided , however , that in the event the Company is
notified by the Commission that the Initial Registration Statement
will not be reviewed or is no longer subject to further review and
comments, the Effectiveness Date as to the Initial Registration
Statement shall be the fifth (5 th )
Business Day following the date on which the Company is so notified
if such date precedes the date otherwise required above.
“ Exchange Act ” means the
Securities Exchange Act of 1934, as amended.
“
Holder ” or “ Holders ” means any
person or entity owning of record or having the right to acquire
Registrable Securities or any assignee of record thereof in
accordance with Section 1.9 hereof.
“ Initial Registration Statement
” means the initial Registration Statement required to be
filed pursuant to Section 1.2.
“ Prospectus ” means the
prospectus included in a Registration Statement (including, without
limitation, a prospectus that includes any information previously
omitted from a prospectus filed as part of an effective
registration statement in reliance upon Rule 430A promulgated by
the Commission pursuant to the Securities Act), as amended or
supplemented by any prospectus supplement, with respect to the
terms of the offering of any portion of the Registrable Securities
covered by a Registration Statement, and all other amendments and
supplements to the Prospectus, including post-effective amendments,
and all material incorporated by reference or deemed to be
incorporated by reference in such Prospectus.
“ Registrable Securities ”
means (a) all of the Common Shares, (b) all Warrant Shares, (c) any
additional shares of Common Stock issuable in connection with any
anti-dilution provisions with respect to the Common Shares or the
Warrant Shares and (d) any securities issued or issuable upon any
stock split, dividend or other distribution, recapitalization or
similar event with respect to the foregoing; provided,
however , that the Company shall not be required to
maintain the effectiveness, or file another Registration Statement
hereunder, with respect to any Registrable Securities that are not
subject to the current public information requirement under Rule
144 and that are eligible for resale without volume or
manner-of-sale restrictions without current public information
pursuant to Rule 144 promulgated by the Commission pursuant to a
written opinion letter to such effect, addressed, delivered and
acceptable to the transfer agent of the Company.
“ Registration Statement ”
means any registration statement filed pursuant to Section 1,
including (in each case) the Prospectus, amendments and supplements
to any such registration statement or Prospectus, including pre-
and post-effective amendments, all exhibits thereto, and all
material incorporated by reference or deemed to be incorporated by
reference in any such registration statement.
“ Rule 415 ” means Rule 415
promulgated by the Commission pursuant to the Securities Act, as
such Rule may be amended or interpreted from time to time, or any
similar rule or regulation hereafter adopted by the Commission
having substantially the same purpose and effect as such
Rule.
“ Rule 424 ” means Rule 424
promulgated by the Commission pursuant to the Securities Act, as
such Rule may be amended or interpreted from time to time, or any
similar rule or regulation hereafter adopted by the Commission
having substantially the same purpose and effect as such
Rule.
“ SEC Guidance ” means (i)
any publicly-available written or oral guidance, comments,
requirements or requests of the Commission staff and (ii) the
Securities Act, in each case, as reasonably interpreted in good
faith upon the mutual agreement of the Company and the Holders or
the Legal Counsel.
“ Securities Act ” means the
Securities Act of 1933, as amended.
“ Trading Market ” means the
following markets or exchanges on which the Common Stock is listed
or quoted for trading on the date in question: the OTC Bulletin
Board, the American Stock Exchange, the Nasdaq Capital Market, the
Nasdaq Global Market, the Nasdaq Global Select Market or the New
York Stock Exchange.
1.2 Initial
Shelf Registration
As soon as practicable after the date hereof,
the Company shall prepare and file with the Commission a
Registration Statement covering the resale of all or such maximum
portion of the Registrable Securities as permitted by SEC Guidance
for an offering to be made on a continuous basis pursuant to Rule
415. Such Registration Statement filed hereunder shall
be on Form S-3 or, if such form is not available to the Company,
Form S-1. Subject to the terms of this Agreement, the
Company shall use its reasonable best efforts to cause such
Registration Statement to be declared effective under the
Securities Act as promptly as possible after the filing thereof,
but in any event prior to the Effectiveness Date, and shall use its
reasonable best efforts to keep such Registration Statement
continuously effective under the Securities Act until all
Registrable Securities covered by such Registration Statement have
been sold, or may be sold without volume or manner-of-sale
restrictions pursuant to Rule 144, without the requirement for the
Company to be in compliance with the current public information
requirement under Rule 144, as determined by the counsel to the
Company pursuant to a written opinion letter to such effect,
addressed and acceptable to the transfer agent of the Company and
reasonably acceptable to the affected Holders (the “
Effectiveness Period ”).
1.3 Demand
Registration
(a) Subject
to the right of the Company to suspend the availability of a
Registration Statement or Prospectus pursuant to Section 1.5(k), if
at any time during the Effectiveness Period the Registration
Statement required to be filed under Section 1.2 shall not be
effective under the Securities Act by the Effectiveness Date
covering the resale of all of the Registrable Securities (for any
reason and notwithstanding SEC Guidance), then the Holders of at
least thirty percent (30%) of the Registrable Securities then
outstanding may request that the Company file a Registration
Statement covering the resale of all of such Registrable Securities
then outstanding as permitted by SEC Guidance for an offering to be
made on a continuous basis pursuant to Rule 415. Such
Registration Statement filed hereunder shall be on Form S-1 or Form
S-3 (if available to the Company) or other appropriate
form. The Holders initiating such registration shall
advise the Company as part of their request pursuant to this
Section 1.3 if the distribution of such Registrable Securities
shall be by means of an underwriting. Subject to the
terms of this Agreement, the Company shall use its reasonable best
efforts to cause such Registration Statement to be declared
effective under the Securities Act as promptly as possible after
the filing thereof, and shall use its reasonable best efforts to
keep such Registration Statement continuously effective through the
Effectiveness Period.
(b) The
Company shall not be required to effect a registration pursuant to
this Section 1.3:
(i) after
the Company has effected three (3) registrations pursuant to this
Section 1.3, and such registrations have been declared or
ordered effective (the “ Maximum Demand Registrations
”); provided, however, that if due to SEC Guidance or any
other reason, all Registrable Securities are not registered in
three (3) registrations then the Maximum Demand Registrations shall
be increased to equal such number of additional registrations as
necessary to provide for resale of all Registrable Securities on a
continuous basis pursuant to Rule 415;
(ii) if
the Company has effected a registration pursuant to this
Section 1.3 within the preceding six (6) months, and such
registration has been declared or ordered effective;
(iii) during
the period starting with the date sixty (60) days prior to the
Company’s good faith estimate of the date of the filing of,
and ending on a date one hundred eighty (180) days following the
effective date of, a Company-initiated registration subject to
Section 1.4, provided that the Company is actively employing
in good faith commercially reasonable efforts to cause such
registration statement to become effective (other than a
registration relating to the issuance or sale of securities to
employees of the Company pursuant to a stock option, stock purchase
or similar plan or to an acquisition or other transaction to which
Rule 145 under the Securities Act is applicable);
(iv) if
the Company shall furnish to Holders requesting a registration
pursuant to this Section 1.3, a certificate signed by the
Company’s Chief Executive Officer or Chairman of the Board of
Directors of the Company (the “ Board ”) stating
that in the good faith judgment of the Board, it would be
materially detrimental to the Company and its stockholders for such
registration to be effected at such time because the sale of
Registrable Securities covered by such registration or the
disclosure of information therein or in any related prospectus or
prospectus supplement would materially interfere with a transaction
or development involving the Company for sales of Registrable
Securities thereunder to then be permitted, and setting forth in
general terms the reasons for such determination, in which event
the Company shall have the right to defer such filing for a period
of not more than ninety (90) days after receipt of the request of
the Holders, provided that such right to delay a request shall be
exercised by the Company not more than once in any twelve
(12)-month period and provided further that the Company shall not
register any other capital stock during such ninety (90) day period
(other than a registration relating to the issuance or sale of
securities to employees of the Company pursuant to a stock option,
stock purchase or similar plan or to an acquisition or other
transaction to which Rule 145 under the Securities Act is
applicable); or
(v) in
any particular jurisdiction in which the Company would be required
to execute a general consent to service of process in effecting
such registration, unless the Company is already subject to service
in such jurisdiction and except as may be required under the
Securities Act.
1.4 Piggyback
Registration
If, at any time
during the Effectiveness Period, there is not an effective
Registration Statement covering all of the Registrable Securities
and the Company shall determine to prepare and file with the
Commission a registration statement relating to an offering for its
own account or the account of others under the Securities Act of
any of its equity securities, other than on Form S-4 or Form S-8
(each as promulgated under the Securities Act) or their then
equivalents relating to equity securities to be issued solely in
connection with any acquisition of any entity or business or equity
securities issuable in connection with the Company’s stock
incentive or other employee benefit plans, then the Company shall
deliver to each Holder a written notice of such determination and,
if within fifteen (15) days after the date of the delivery of such
notice, any such Holder shall so request in writing, the Company
shall use its reasonable best efforts to include in such
registration statement all or any part of such Registrable
Securities such Holder requests to be registered; provided ,
however , that the Company shall not be required to register
any Registrable Securities pursuant to this Section 1.4 that are
eligible for resale pursuant to Rule 144 promulgated by the
Commission pursuant to the Securities Act or that are the subject
of a then effective Registration Statement. The Company
shall have the right to terminate or withdraw any registration
initiated by it under this Section 1.4 prior to the effectiveness
of such registration whether or not any Holder has elected to
include securities in such registration.
1.5 Registration
Procedures
In connection with the Company’s
registration obligations under Section 1.2, 1.3 and 1.4, the
following provisions shall apply:
(a) Subject
to Section 1.6 below, the Holders shall have the right to select
one legal counsel to review and oversee any registration pursuant
to this Section 1 (“ Legal Counsel ”), which
shall be Gunderson Dettmer Stough Villeneuve Franklin &
Hachigian, LLP or such other counsel as thereafter designated by
the Holders of at least two-thirds of the Registrable
Securities. The Company shall reasonably cooperate with
the Legal Counsel in the Company's performance of its obligations
under this Agreement.
(b) Not
less than five Business Days prior to the filing of each
Registration Statement or any related Prospectus or any amendment
or supplement thereto (including any document that would be
incorporated therein by reference), the Company shall, (i) furnish
to each Holder and Legal Counsel copies of all such documents
proposed to be filed, which documents (other than those
incorporated) will be subject to the review of such
Holders and Legal Counsel, and (ii) cause its officers and
directors, counsel and independent certified public accountants to
respond to such inquiries as shall be necessary, in the reasonable
belief of Legal Counsel to conduct a reasonable investigation
within the meaning of the Securities Act. The Company shall not
file a Registration Statement or any such Prospectus or any
amendments or supplements thereto to which the Holders of at least
two-thirds of the Registrable Securities shall reasonably object in
good faith, provided that, the Company is notified of such
objection in writing no later than five (5) Business Days after the
Holders have been so furnished copies of such documents. Each
Holder agrees to furnish to the Company a completed selling
stockholder questionnaire in reasonable form prepared by the
Company’s counsel on a date that is not less than two (2)
Business Days prior to the filing date of the Registration
Statement.
(c) The
Company shall telephonically request effectiveness of a
Registration Statement as of 4:00 PM Eastern Time on a
Business Day. The Company shall promptly notify the
Holders via facsimile or by e-mail of the effectiveness of a
Registration Statement covering any Registrable Securities after
the Company telephonically confirms effectiveness with the
Commission. The Company shall, by 9:00 AM Eastern Time on, or
before, the Business Day after the effective date of such
Registration Statement, file a final Prospectus with the Commission
as required by Rule 424. Subject to the Company’s
obligations under Section 1.2(a) to prepare and file with the
Commission a Registration Statement covering the resale of all of
the Registrable Securities, but notwithstanding any other provision
of this Agreement, if any SEC Guidance sets forth a limitation on
the number of Registrable Securities permitted to be registered on
a particular Registration Statement, unless otherwise directed in
writing by a Holder as to its Registrable Securities, the number of
Registrable Securities to be registered on such Registration
Statement will be reduced by Registrable Securities represented by
Warrant Shares (applied, in the case that some Warrant Shares may
be registered, to the Holders on a pro rata basis based on the
total number of unregistered Warrant Shares held by such Holders)
before reducing the number of Registrable Securities represented by
Common Shares. In the event of a cutback hereunder, the
Company shall give the Holder at least five Business Days prior
written notice along with the calculations as to such
Holder’s allotment.
(d) (i)
The Company shall prepare and file with the Commission such
amendments, including post-effective amendments, to a Registration
Statement and the Prospectus used in connection therewith as may be
necessary to keep a Registration Statement continuously effective
as to the applicable Registrable Securities for the Effectiveness
Period and prepare and file with the Commission such additional
Registration Statements in order to register for resale under the
Securities Act all of the Registrable Securities, (ii) cause the
related Prospectus to be amended or supplemented by any required
Prospectus supplement (subject to the terms of this Agreement),
and, as so supplemented or amended, to be filed pursuant to Rule
424, (iii) respond as promptly as reasonably possible to any
comments received from the Commission with respect to a
Registration Statement or any amendment thereto and provide as
promptly as reasonably possible to the Holders true and complete
copies of all correspondence from and to the Commission relating to
a Registration Statement (provided that, the Company may excise any
information contained therein which would constitute material
non-public information as to any Holder which has not executed a
confidentiality agreement with the Company) and (iv) comply in all
material respects with the provisions of the Securities Act and the
Exchange Act with respect to the disposition of all Registrable
Securities covered by a Registration Statement during the
applicable period in accordance (subject to the terms of this
Agreement) with the intended methods of disposition by the Holders
thereof set forth in such Registration Statement as so amended or
in such Prospectus as so supplemented.
(e) The
Company shall notify the Holders of Registrable Securities to be
sold (which notice shall, pursuant to clauses (iii) through (vi)
hereof, be accompanied by an instruction to suspend the use of the
Prospectus until the requisite changes have been made) as promptly
as reasonably possible (i) with respect to a Registration Statement
or any post-effective amendment, when the same has become
effective, (ii) of any request by the Commission or any other
federal or state governmental authority for amendments or
supplements to a Registration Statement or Prospectus or for
additional information, (iii) of the issuance by the Commission or
any other federal or state governmental authority of any stop order
suspending the effectiveness of a Registration Statement covering
any or all of the Registrable Securities or the initiation of any
action, claim, suit, investigation or proceeding (any of the
foregoing, a “ Proceeding ”) for such purpose
(which notice thereof to the Holders of Registrable Securities
shall be provided promptly, but not later than two Business Days of
the date of the Company’s actual knowledge of such
Proceeding); (iv) of the receipt by the Company of any notification
with respect to the suspension of the qualification or exemption
from qualification of any of the Registrable Securities for sale in
any jurisdiction, or the initiation or threatening of any
Proceeding for such purpose, (v) of the occurrence of any event or
passage of time that makes the financial statements included in a
Registration Statement ineligible for inclusion therein or any
statement made in a Registration Statement or Prospectus or any
document incorporated or deemed to be incorporated therein by
reference untrue in any material respect or that requires any
revisions to a Registration Statement, Prospectus or other
documents so that, in the case of a Registration Statement or the
Prospectus, as the case may be, 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 light of the circumstances under which they were made,
not misleading and (vi) of the occurrence or existence of any
pending corporate development with respect to the Company that the
Company believes may be material and that, in the determination of
the Company, makes it not in the best interest of the Company to
allow continued availability of a Registration Statement or
Prospectus, provided that, any and all of such information shall
remain confidential to each Holder (other than disclosure to a
Holder’s managers, employees, agents, affiliates,
accountants, attorneys and advisors, provided such other party
agrees to maintain the confidentiality of such information) until
such information otherwise becomes public, unless disclosure by a
Holder is required by law; provided , further ,
notwithstanding each Holder’s agreement to keep such
information confidential that, the Holders make no acknowledgement
that any such information provided pursuant to this Section 1.5(e)
is material, non-public information. The Company shall
be entitled to exercise its right under this Section 1.5(e) to
suspend the availability of a Registration Statement and Prospectus
for a period not to exceed an aggregate sixty (60) days in any 12
month period; provided, however, that, without the consent of the
Holders of at least two-thirds of the Registrable Securities no
such postponement or suspension shall be permitted for more than a
consecutive thirty (30) days.
(f) The
Company shall use its reasonable best efforts to avoid the issuance
of, or, if issued, obtain the withdrawal of (i) any order stopping
or suspending the effectiveness of a Registration Statement, or
(ii) any suspension of the qualification (or exemption from
qualification) of any of the Registrable Securities for sale in any
jurisdiction, at the earliest practicable moment.
(g) The
Company shall furnish to each Holder, without charge, at least one
conformed copy of each such Registration Statement and each
amendment thereto, including financial statements and schedules,
all documents incorporated or deemed to be incorporated therein by
reference to the extent requested by such Holder, and all exhibits
to the extent requested by such Holder (including those previously
furnished or incorporated by reference) promptly after the filing
of such documents with the Commission; provided, that any such item
which is available on the Commission’s EDGAR (or successor)
electronic system need not be furnished in physical
form.
(h) If
FINRA Rule 2710 requires any broker-dealer to make a filing prior
to executing a sale by a Holder, the Company shall (i) make an
Issuer Filing with the FINRA Corporate Financing Department
pursuant to proposed FINRA Rule 2710(b)(10)(A)(i), (ii) respond
within five Trading Days to any comments received from FINRA in
connection therewith and (iii) and pay the filing fee required in
connection therewith.
(i) Prior
to any resale of Registrable Securities by a Holder, the Company
shall use its reasonable best efforts to register or qualify or
cooperate with the selling Holders in connection with the
registration or qualification (or exemption from the Registration
or qualification) of such Registrable Securities for the resale by
the Holder under the securities or Blue Sky laws of such
jurisdictions within the United States as any Holder reasonably
requests in writing, to keep each registration or qualification (or
exemption therefrom) effective during the Effectiveness Period and
to do any and all other acts or things reasonably necessary to
enable the disposition in such jurisdictions of the Registrable
Securities covered by each Registration Statement; provided, that,
the Company shall not be required to qualify generally to do
business in any jurisdiction where it is not then so qualified,
subject the Company to any material tax in any such jurisdiction
where it is not then so subject or file a general consent to
service of process in any such jurisdiction.
(j) If
requested by a Holder, the Company shall cooperate with such
Holders to facilitate the timely preparation and delivery of
certificates representing Registrable Securities to be delivered to
a transferee pursuant to a Registration Statement.
(k) Upon
the occurrence of any event contemplated by Section 1.5(e), the
Company shall, as promptly as reasonably possible under the
circumstances taking into account the Company’s good faith
assessment of any adverse consequences to the Company and its
stockholders of the premature disclosure of such event, prepare a
supplement or amendment, including a post-effective amendment, to a
Registration Statement or a supplement to the related Prospectus or
any document incorporated or deemed to be incorporated therein by
reference, and file any other required document so that, as
thereafter delivered, neither a Registration Statement nor such
Prospectus will contain an untrue statement of a material fact or
omit to state a material fact required to be stated therein or
necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading. If
the Company notifies the Holders in accordance with clauses (iii)
through (vi) of Section 1.5(e) above to suspend the use of any
Prospectus until the requisite changes to such Prospectus have been
made, then the Holders shall suspend use of such Prospectus. The
Company will use its reasonable best efforts to ensure that the use
of the Prospectus may be resumed as promptly as is
practicable.
(l) The
Company may require each selling Holder to furnish to the Company a
certified statement as to the number of shares of Common Stock
beneficially owned by such Holder and, if required by the
Commission, the natural persons thereof that have voting and
dispositive control over the shares.
(m) In
the event of any underwritten public offering under Section 1.3 or
1.4, each Holder participating in such underwriting shall also
enter into and perform its obligations under the underwriting
agreement, in usual and customary form, with the managing
underwriter of such offering. In connection with any
offering involving an underwriting of shares of the Company’s
capital stock, the Company shall not be required to include any of
the Holders’ securities in such underwriting unless they
accept the terms of the underwriting as agreed upon between the
Company and the underwriters selected by the Company and enter into
an underwriting agreement in customary form with an underwriter or
underwriters selected by the Company. If the total
amount of securities, including Registrable Securities, requested
by stockholders to be included in such offering exceeds the amount
of securities sold other than by the Company that the managing
underwriters determine in their sole discretion is compatible with
the success of the offering, then the Company shall be required to
include in the offering only that number of such securities,
including Registrable Securities, that the managing underwriters
determine in their sole discretion will not jeopardize the success
of the offering (the securities so included to be apportioned pro
rata among the selling stockholders according to the total amount
of securities entitled to be included therein owned by each selling
stockholder or in such other proportions as shall mutually be
agreed to by such selling stockholders, except that no Registrable
Securities shall be excluded until all other securities of other
selling stockholders shall have been excluded, but in no event
shall the amount of securities of the selling Holders included in
the offering be reduced below thirty percent (30%) of the total
amount of securities included in such offering).
(n) Cause
all Registrable Securities relating to the Registration Statement
to be listed on the Trading Market on which similar securities
issues by the Company are then listed.
1.6. Registration
Expenses
All expenses
(other than underwriting discounts and commissions incurred in
connection with registrations, which shall be borne by the Holders
of the securities so registered pro rata on the basis of the number
of shares so registered), filings or qualifications pursuant to
Sections 1.2, 1.3 or 1.4, including, without
limitation, all registration, filing and qualification fees
(including “blue sky” fees), fees for establishing a
transfer agency and registrars fees, printers’ and accounting
fees, fees and disbursements of counsel for the Company, reasonable
fees and disbursements of a single special counsel for the selling
Holders hereunder (such fees and disbursements not to exceed
$50,000), which special counsel shall be selected by Holders owning
at least two-thirds of the Registrable Securities then being
registered, and any other reasonable expenses incurred by the
Company or any Holder pursuant to any provision of this Agreement
shall be borne by the Company. Notwithstanding the
foregoing, the Company shall not be required to pay for any
expenses of any registration proceeding begun pursuant to
Section 1.3 if the registration request is subsequently
withdrawn at the request of the Holders of a majority of the
Registrable Securities to be registered (in which case all
participating Holders shall bear such expenses pro rata based upon
the number of Registrable Securities that were to be registered in
the withdrawn registration) unless (a) the withdrawal is based on
upon material adverse information concerning the Company of which
the Holders initiating the request were not aware at the time of
such request or (b) a majority of the Holders initiating the
request agree to forfeit their right to one requested registration
pursuant to Section 1.3, in which event such right shall be
forfeited by all Holders. Except as provided above, all
other expenses incurred by any Holder in connection with a
registration requested pursuant to Sections 1.2, 1.3 and 1.4,
including fees and disbursements of counsel for the selling Holder
or Holders, shall be borne by such Holder or Holders incurring such
expenses.
1.7 Prospectus
Delivery Requirements; Discontinued Disposition
(a) Each
Holder covenants and agrees that it will comply with the prospectus
delivery requirements of
