AMENDMENT NO. 1 TO LETTER CONSULTING AGREEMENT BY AND BETWEEN POWER OF THE DREAM VENTURES, INC. AND MR. MIHALY ZALA
EXHIBIT
10.10
AMENDMENT
NO. 1 TO LETTER CONSULTING AGREEMENT
BY
AND BETWEEN
POWER
OF THE DREAM VENTURES, INC. AND
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AMENDMENT
NO. 1 dated
June 2, 2007 (the “Amendment”) to Letter Consulting Agreement dated June 1, 2007
by and between Power of the Dream Ventures, Inc., a Delaware corporation (the
“Company”) (the “Agreement”) and ▇▇. ▇▇▇▇▇▇ ▇▇▇▇ (“Consultant or
MZ”).
RECITALS:
WHEREAS,
MZ
and the
Company entered into the Agreement on June 1, 2007, pursuant to which, MZ is
to
provide business consulting services to and for the benefit of the
Company;
WHEREAS,
in
consideration for his business consulting services, MZ is to be paid a one-time
payment of one hundred thousand (100,000) shares of Common Stock, $.0001 par
value per share, of the Company (the “Consulting Shares”);
WHEREAS,
it
was always
contemplated between the parties that the issuance of the Consulting Shares
to
MZ was to be effected pursuant to the registration exemption provided by
Regulation S as promulgated under the Securities Act of 1933, as amended (the
“1933 Act”);
WHEREAS,
this
Amendment is for the express and limited purpose of documenting and confirming
that all of the pre-requisites for qualification under Regulation S exist with
respect to the Company’s issuance and delivery of the Consulting Shares to
MZ.
NOW,
THEREFORE, in
consideration of the premises and the mutual covenants and conditions herein
contained, the Agreement is hereby amended by this Amendment as
follows:
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1.
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A
new Section “M” is hereby added to the Agreement which shall read, in its
entirety, as follows:
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“M. Regulation
S Representations, Warranties & Covenants.
MZ
further acknowledges, represents,
warrants and covenants to the Company that:
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(a) the
Consulting Shares are being offered and sold to MZ in reliance on the exemptions
from the registration requirements of the 1933 Act provided by the provisions
of
Regulation S as promulgated under the 1933 Act, and that the Consulting Shares
may not be resold in the United States or to a US Person as defined in
Regulation S, except pursuant to an effective registration statement or an
exemption from the registration provisions of the 1933 Act as evidenced by
an
opinion of counsel acceptable to the Company, and that in the absence of an
effective registration statement covering the Consulting Shares or an available
exemption from registration under the 1933 Act, the Consulting Shares must
be
held indefinitely. MZ further acknowledges that neither this
Amendment nor the Agreement is intended as a plan or scheme to evade the
registration requirements of the 1933 Act;
(b) MZ
is a resident of the Republic of Hungary;
(c) MZ
is not a “US Person” as that term is defined in Rule 902 of Regulation S, as
more fully set forth in Section 2 of this Amendment;
(d) MZ
is not, and on the date that he receives the Consulting Shares will not be,
an
affiliate of the Company;
(e) that
all offers and sales of the Consulting Shares shall be made in compliance with
all applicable laws of any applicable jurisdiction and, particularly, in
accordance with Rules 903 and 904, as applicable, of Regulation S or pursuant
to
registration of the Consulting Shares under the 1933 Act or pursuant to an
exemption from registration. In any case, none of the Consulting
Shares have been and will be offered or sold by MZ to, or for the account or
benefit of a U.S. Person or within the United States until after the end of
a
one year period commencing on the date on which this Amendment is accepted
by
the Company (the “Distribution Compliance Period”), except
pursuant to an effective registration statement as to the Consulting Shares
or
an applicable exemption from the registration requirements of the 1933
Act.
(f) the
Consulting Shares have not been offered to MZ in the United States and the
individual making the decision to purchase the Consulting Shares and executing
and delivering this Amendment on behalf of MZ were not in the United States
when
the decision was made and this Amendment was executed and
delivered;
(g) MZ
will not engage in any activity for the purpose of, or that could reasonably
be
expected to have the effect of, conditioning the market in the United States
for
any of the Consulting Shares; and
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(h) neither
MZ nor any of his affiliates will directly or indirectly maintain any short
position, purchase or sell put or call options or otherwise engage in any
hedging activities in any of the Common Stock of the Company until after the
end
of the Distribution Compliance Period, and acknowledges that such activities
are
prohibited by Regulation S.”
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2.
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A
new Section “N” is hereby added to the Agreement, which shall read, in its
entirety, as follows:
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“N. Regulation
S – Definition of US Person.
Rule
902
(k)(1): "U.S. person" means:
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i.
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Any
natural person resident in the United
States;
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ii.
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Any
partnership or corporation organized or incorporated under the laws
of the
United States;
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iii.
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Any
estate of which any executor or administrator is a U.S.
person;
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iv.
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Any
trust of which any trustee is a U.S.
person;
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v.
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Any
agency or branch of a foreign entity located in the United
States;
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vi.
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Any
non-discretionary account or similar account (other than an estate
or
trust) held by a dealer or other fiduciary for the benefit or account
of a
U.S. person;
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vii.
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Any
discretionary account or similar account (other than an estate or
trust)
held by a dealer or other fiduciary organized, incorporated, or (if
an
individual) resident in the United States;
and
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viii.
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Any
partnership or corporation if:
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A.
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Organized
or incorporated under the laws of any foreign jurisdiction;
and
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B.
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Formed
by a U.S. person principally for the purpose of investing in securities
not registered under the Act, unless it is organized or incorporated,
and
owned, by accredited investors (as defined in Rule 501(a)) who are
not
natural persons, estates or
trusts.
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3
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i.
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Any
discretionary account or similar account (other than an estate or
trust)
held for the benefit or account of a non-U.S. person by a dealer
or other
professional fiduciary organized, incorporated, or (if an individual)
resident in the United States;
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ii.
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Any
estate of which any professional fiduciary acting as executor or
administrator is a U.S. person if:
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A.
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An
executor or administrator of the estate who is not a U.S. person
has sole
or shared investment discretion with respect to the assets of the
estate;
and
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B.
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The
estate is governed by foreign law;
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iii.
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Any
trust of which any professional fiduciary acting as trustee is a
U.S.
person, if a trustee who is not a U.S. person has sole or shared
investment discretion with respect to the trust assets, and no beneficiary
of the trust (and no settlor if the trust is revocable) is a U.S.
person;
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iv.
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An
employee benefit plan established and administered in accordance
with the
law of a country other than the United States and customary practices
and
documentation of such country;
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v.
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Any
agency or branch of a U.S. person located outside the United States
if:
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A.
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The
agency or branch operates for valid business reasons;
and
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B.
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The
agency or branch is engaged in the business of insurance or banking
and is
subject to substantive insurance or banking regulation, respectively,
in
the jurisdiction where located; and
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vi.
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The
International Monetary Fund, the International Bank for Reconstruction
and
Development, the Inter-American Development Bank, the Asian Development
Bank, the African Development Bank, the United Nations, and their
agencies, affiliates and pension plans, and any other similar
international organizations, their agencies, affiliates and pension
plans.
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4
Rule
902(l): United States. "United States" means the United
States of America, its territories and possessions, any State of the United
States, and the District of Columbia.
2. Except
as amended by this Amendment, the remaining terms and provisions of the
Agreement shall remain unchanged.
IN
WITNESS WHEREOF, each of the Company and MZ have executed this
Amendment, agreeing to be bound by the terms hereof, as of the day and year
first-above written.
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POWER
OF THE DREAM VENTURES, INC.
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By
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Name:
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Viktor
Rozsnyay, President
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CONSULTANT:
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Name:
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▇▇.
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