the highest independent bid of that security. However, if all independent bids are lowered below the passive market makers bid, such bid must then be lowered when specified purchase limits
are exceeded.
Lock-Up
Agreements.
Pursuant to certain
lock-up
agreements, we and the selling stockholders, have agreed, subject to certain exceptions, not to offer, sell, assign, transfer, pledge, contract to sell, or otherwise dispose of or
announce the intention to otherwise dispose of, or enter into any swap, hedge or similar agreement or arrangement that transfers, in whole or in part, the economic consequence of ownership of, directly or indirectly, or make any demand or request or
exercise any right with respect to the registration of, or file with the SEC a registration statement under the Securities Act relating to, any common stock or securities convertible into or exchangeable or exercisable for any common stock held
prior to the date of this offering without the prior written consent of the representatives, for a period of 90 days after the date of the pricing of the offering.
This
lock-up
provision applies to common stock and to securities convertible into or exchangeable or exercisable
for common stock. The exceptions permit us, among other things and subject to restrictions, to: (a) issue common stock or options pursuant to employee benefit plans, (b) issue common stock upon exercise of outstanding options or warrants
(c) issue securities in connection with acquisitions, joint ventures, commercial arrangements or similar transactions in an amount not to exceed 10% of the total number of shares of our common stock outstanding following the completion of any
such transaction, or (d) file registration statements on Form
S-8.
The exceptions permit parties to the
lock-up
agreements, among other things and
subject to restrictions, to: (a) make certain gifts, (b) if the party is a corporation, partnership, limited liability company or other business entity, make transfers to any shareholders, partners, members of, or owners of similar equity
interests in, the party, or to an affiliate of the party, if such transfer is not for value, (c) if the party is a corporation, partnership, limited liability company or other business entity, make transfers in connection with the sale or
transfer of all of the partys capital stock, partnership interests, membership interests or other similar equity interests, as the case may be, or all or substantially all of the partys assets, in any such case not undertaken for the
purpose of avoiding the restrictions imposed by the
lock-up
agreement and (d) enter into trading plans providing for the sale of common stock which meet the requirements of Rule 10b5-1(c)
under the Exchange Act, provided that such plan does not provide for, or permit, the sale of any common stock during the term of the lock-up. In addition, the
lock-up
provision will not restrict
broker-dealers from engaging in market making and similar activities conducted in the ordinary course of their business.
The representatives, in
their sole discretion, may release our common stock and other securities subject to the
lock-up
agreements described above in whole or in part at any time. When determining whether or not to release our common
stock and other securities from
lock-up
agreements, the representatives will consider, among other factors, the holders reasons for requesting the release, the number of shares for which the release is
being requested and market conditions at the time of the request.
Canada
. The common stock may be sold only to
purchasers purchasing, or deemed to be purchasing, as principal that are accredited investors, as defined in National Instrument
45-106
Prospectus Exemptions
or subsection 73.3(1) of the
Securities
Act
(Ontario), and are permitted clients, as defined in National Instrument
31-103
Registration Requirements, Exemptions and Ongoing Registrant Obligations
. Any resale of the common stock must be
made in accordance with an exemption from, or in a transaction not subject to, the prospectus requirements of applicable securities laws.
Securities legislation in certain provinces or territories of Canada may provide a purchaser with remedies for rescission or damages if this prospectus
supplement (including any amendment thereto) contains a misrepresentation, provided that the remedies for rescission or damages are exercised by the purchaser within the time limit prescribed by the securities legislation of the purchasers
province or
S-33