Tinroad: You have misread the statements. Section 6 (b) only applies if the upcoming S-3 registration statement is NOT declared effective. It does not modify the fact that the S-3 is required to be filed on or before June 30, 2003 to comply with the covenants. If Putnam is implying that the company may not have to do as they have contractually agreed to do and publicly disclosed that they will do, then he should make a public explanation.
6. REGISTRATION RIGHTS On or before June 30, 2003, the Company shall undertake to file a registration statement for the resale of the Conversion Shares with the Securities and Exchange Commission ("SEC") on Form S-3 or other appropriate form, and will utilize commercially reasonable efforts to make such registration statement effective as soon as possible thereafter.
[NOTE: The company has agreed that is "shall" undertake to file a registration for new common shares to be available for conversion of the CP shares.]
In the event that the foregoing registration statement is not declared effective, the Noteholder shall have the following additional registration rights with respect to the Conversion Shares:
[NOTE: As the colon indicates, the following points only apply if the registration is not declared effective. 6 (b) refers to any subsequent registrations that may be filed during the exercise period if the required one (on or before 6/30) is not declared effective.]
(a) If, at any time from issuance to December 31, 2007 (the "EXERCISE
PERIOD"), the Company proposes to prepare and file any registration statements
covering its Common Stock (in either case, other than in connection with a
merger or acquisition, pursuant to Form S-8 or any successor form, or pursuant
to any other form or type of registration in which Registrable Securities (as
defined below) cannot be appropriately included) (collectively, the
"REGISTRATION STATEMENTS"), it will give written notice as provided herein at
least thirty (30) days prior to the filing of each such Registration Statement
to the then holders of the Series D Preferred Stock and/or Conversion Shares
("HOLDER") of its intention to do so. If the Holders of the Series D Preferred
Stock and/or Conversion Shares notify the Company within twenty (20) days after
receipt of any such notice of its or their desire to include the Conversion
Shares (collectively, the "REGISTRABLE SECURITIES") in such proposed
registration statement, the Company shall afford the Holders of the Series D
Preferred Stock and/or Conversion Shares the opportunity to have any such
Registrable Securities registered under such registration statement at the
Company's sole cost and expense.
(b) Notwithstanding the provisions hereof, the Company shall have the right
at any time after it shall have given written notice pursuant hereto
(irrespective of whether a written request for inclusion of any such securities
shall have been made) to elect not to file any such proposed registration
statement, or to withdraw the same after the filing but prior to the effective
date thereof.
(c) Notwithstanding any other provision of this Section 6, if the
underwriter managing such registration notifies the Holders in writing that
market or economic conditions limit the amount of securities which may
reasonably be expected to be sold, the Holders of such Registrable Securities
will be allowed to register their Registrable Securities pro rata based on the
number of shares of Registrable Securities held by such Holders, respectively.
No Registrable Securities excluded from the underwriting by reason of the
underwriter's marketing limitation shall be included in such registration.
(d) Each Holder of Conversion Shares to be sold pursuant to any
Registration Statement (each, a "DISTRIBUTING HOLDER") shall severally, and not
jointly, indemnify and hold harmless the Company, its officers and directors,
each underwriter and each person, if any, who controls the Company and such
underwriter, against any loss, claim, damage, expense or liability, joint or
several, as incurred, to which any of them may become subject under the
Securities Act or any other statute or at common law, in so far as such loss,
claim, damage, expense or liability (or actions in respect thereof) arises out
of or is based upon any untrue statement or alleged untrue statement of any
material fact contained in any such Registration Statement, any preliminary
prospectus or final prospectus contained therein, or any amendment or supplement
thereto, 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
light of the circumstances under which they were made, not misleading, in each
case to the extent, but only to the extent, that 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 by such
Distributing Holder specifically for use therein. Such Distributing Holder shall
reimburse the Company, such underwriter and each such officer, director or
controlling person for any legal or other expenses reasonably incurred by any of
them in connection with investigating or defending any such liability, as
incurred. Notwithstanding the foregoing, such indemnity with respect to such
preliminary prospectus or such final prospectus shall not inure to the benefit
of the Company, its officers or directors, or such underwriter (or such
controlling person of the Company or the underwriter) if the person asserting
any such loss, claim, damage, expense or liability purchased the securities that
are the subject thereof and did not receive a copy of the final prospectus (or
the final prospectus as then amended, revised or supplemented) at or prior to
the time such furnishing is required by the Securities Act in any case where any
such untrue statement or omission of a material fact contained in the
preliminary prospectus was corrected in the final prospectus (or, if contained
in the final prospectus, was subsequently corrected by amendment, revision or
supplement).
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