REGISTRATION RIGHTS AGREEMENT
EXHIBIT 10.2
Execution Version
This Registration Rights Agreement (the “Agreement”) is made and entered into as of
this ___ day of April, 2011, by and among Mad Catz Interactive, Inc., a corporation organized under
the Canada Business Corporations Act (the “Company”), and the “Investors” named in that
certain Securities Purchase Agreement, dated as of April 17, 2011, by and among the Company and the
Investors (the “Purchase Agreement”). Capitalized terms used herein have the respective
meanings ascribed thereto in the Purchase Agreement unless otherwise defined herein.
The parties hereby agree as follows:
1. Certain Definitions.
As used in this Agreement, the following terms shall have the following meanings:
“Additional Shares Effectiveness Deadline” means, with respect to the Registration
Statement required to be filed to cover the resale by Investors of Additional Shares, the earlier
of (i) five (5) Business Days after the SEC shall have informed the Company that no review of the
Registration Statement will be made or that the SEC has no further comments on the Registration
Statement or (ii) (a) in the event that the Registration Statement is not subject to review by the
SEC, the 60th calendar day after the Additional Shares Filing Deadline and (b) in the event that
the Registration Statement is subject to review by the SEC, the 120th calendar day after the
Additional Shares Filing Deadline; provided, however, that if the Additional Shares Effectiveness
Deadline falls on a Saturday, Sunday or other day that the SEC is closed for business, the
Additional Shares Effectiveness Deadline shall be extended to the next Business Day on which the
SEC is open for business.
“Common Stock” means the Company’s common stock, no par value, and any securities into
which such shares may hereinafter be reclassified.
“Effectiveness Deadline” means, with respect to the Registration Statement required to
be filed to cover the resale by Investors of the Registrable Securities, the earlier of: (i) (a) in
the event that the Registration Statement is not subject to review by the SEC, the 60th calendar
day following the Closing Date and (b) in the event that the Registration Statement is subject to
review by the SEC, the 120th calendar day following the Closing Date, and (ii) the fifth (5th)
Business Day following the date on which the Company is notified by the SEC that the Registration
Statement will not be reviewed or is no longer subject to further review and comments and the
effectiveness of the Registration Statement may be accelerated; provided, however, that if the
Effectiveness Deadline falls on a Saturday, Sunday or other day that the SEC is closed for
business, the Effectiveness Deadline shall be extended to the next Business Day on which the SEC is
open for business.
“Filing Deadline” means, with respect to the Registration Statement required to be
filed pursuant to Section 2(a), the 30th calendar day following the Closing Date, provided,
however, that if the Filing Deadline falls on a Saturday, Sunday or other day that the SEC is
closed for business, the Filing Deadline shall be extended to the next Business Day on which the
SEC is open for business.
“Investors” means the Investors identified in the Purchase Agreement and any Affiliate
or permitted transferee of any Investor who is a subsequent holder of any Warrants or Registrable
Securities.
“Prospectus” means (i) the prospectus included in any Registration Statement, 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 such Registration Statement and by 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, and (ii)
any “free writing prospectus” as defined in Rule 405 under the 1933 Act.
“Register,” “registered” and “registration” refer to a registration
made by preparing and filing a Registration Statement or similar document in compliance with the
1933 Act (as defined below), and the declaration or ordering of effectiveness of such Registration
Statement or document by the SEC.
“Registrable Securities” means (i) the Shares, (ii) the Warrant Shares and (iii) any
other securities issued or issuable with respect to or in exchange for Registrable Securities,
whether by merger, charter amendment or otherwise; provided, that, a security shall cease to be a
Registrable Security upon (A) sale pursuant to a Registration Statement or Rule 144 under the 1933
Act, or (B) such security becoming eligible for sale without restriction by the Investors pursuant
to Rule 144.
“Registration Statement” means any registration statement of the Company filed under
the 1933 Act that covers the resale of any of the Registrable Securities pursuant to the provisions
of this Agreement, amendments and supplements to such Registration Statement, including
post-effective amendments, all exhibits and all material incorporated by reference in such
Registration Statement.
“Required Investors” means the Investors holding a majority of the Registrable
Securities.
“Rule 144” means Rule 144 promulgated by the SEC under the 1933 Act, as such rule may
be amended from time to time.
“SEC” means the U.S. Securities and Exchange Commission or any successor thereto.
“Shares” means the shares of Common Stock issued pursuant to the Purchase Agreement.
“1933 Act” means the Securities Act of 1933, as amended, and the rules and regulations
promulgated thereunder.
“1934 Act” means the Securities Exchange Act of 1934, as amended, and the rules and
regulations promulgated thereunder.
“Warrants” means, the warrants to purchase shares of Common Stock issued to the
Investors pursuant to the Purchase Agreement, the form of which is attached to the Purchase
Agreement as Exhibit A.
“Warrant Shares” means the shares of Common Stock issuable upon the exercise of the
Warrants.
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2. Registration.
(a) Registration Statements.
(i) On or prior to the Filing Deadline, the Company shall prepare and file with the SEC
one Registration Statement on Form S-3 (or, if Form S-3 is not then available to the Company, on
such form of registration statement as is then available to effect a registration for resale of the
Registrable Securities), covering the resale of all of the Registrable Securities. Subject to any
SEC comments, such Registration Statement shall include the plan of distribution attached hereto as
Exhibit A; provided, however, that no Investor shall be named as an “underwriter” in the
Registration Statement without the Investor’s prior written consent. Such Registration Statement
also shall cover, to the extent allowable under the 1933 Act and the rules promulgated thereunder
(including Rule 416), such indeterminate number of additional shares of Common Stock resulting from
stock splits, stock dividends or similar transactions with respect to the Registrable Securities.
Such Registration Statement shall not include any shares of Common Stock or other securities for
the account of any other holder without the prior written consent of the Required Investors. The
Registration Statement (and each amendment or supplement thereto, and each request for acceleration
of effectiveness thereof) shall be provided in accordance with Section 3(c) to the
Investors and their counsel prior to its filing or other submission. If a Registration Statement
covering the Registrable Securities is not filed with the SEC on or prior to the Filing Deadline,
the Company will make pro rata payments to each Investor, as liquidated damages and not as a
penalty, in an amount equal to 1.5% of the aggregate amount invested by such Investor for each
30-day period or pro rata for any portion thereof following the Filing Deadline for which no
Registration Statement is filed with respect to the Registrable Securities. Such payments shall
constitute the Investors’ exclusive monetary remedy for such events, but shall not affect the right
of the Investors to seek injunctive relief. Such payments shall be made to each Investor in cash
no later than three (3) Business Days after the end of each such 30-day period. Notwithstanding
anything herein or in the Purchase Agreement to the contrary, (i) in no event shall the aggregate
liquidated damages payable pursuant to this Agreement exceed in the aggregate ten percent (10%) of
the aggregate purchase price of the Shares paid to the Investors pursuant to the Purchase
Agreement.
(ii) Additional Registrable Securities. Upon the written demand of any Investor
following any change in the Warrant Price (as defined in the Warrant) such that additional shares
of Common Stock become issuable upon the exercise of the Warrants (the “Additional
Shares”), the Company shall prepare and file with the SEC one or more Registration Statements
on Form S-3 or amend the Registration Statement filed pursuant to clause (i) above, if such
Registration Statement has not previously been declared effective (or, if Form S-3 is not then
available to the Company, on such form of registration statement as is then available to effect a
registration for resale of the Additional Shares) covering the resale of the Additional Shares, but
only to the extent the Additional Shares are not at the time covered by an effective Registration
Statement. Subject to any SEC comments, such Registration Statement shall include the plan of
distribution attached hereto as Exhibit A; provided, however, that no Investor shall be
named as an “underwriter” in the Registration Statement without the Investor’s prior written
consent. Such Registration Statement also shall cover, to the extent allowable under the 1933 Act
and the rules promulgated thereunder (including Rule 416), such indeterminate number of additional
shares of Common Stock resulting from stock splits, stock dividends or similar
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transactions with respect to the Additional Shares. Such Registration Statement shall not
include any shares of Common Stock or other securities for the account of any other holder without
the prior written consent of the Required Investors. The Registration Statement (and each
amendment or supplement thereto, and each request for acceleration of effectiveness thereof) shall
be provided in accordance with Section 3(c) to the Investors and their counsel prior to its
filing or other submission. If a Registration Statement covering the Additional Shares is required
to be filed under this Section 2(a)(ii) and is not filed with the SEC within twenty (20)
Business Days after the request of any Investor in accordance with this Section 2(a)(ii)
(the “Additional Shares Filing Deadline”), the Company will make pro rata payments to each
Investor, as liquidated damages and not as a penalty, in an amount equal to 1.5% of the aggregate
amount invested by such Investor attributable on a pro rata basis to such Additional Shares for
each such 30-day period or pro rata for any portion thereof following the Additional Shares Filing
Deadline for which no Registration Statement is filed with respect to the Additional Shares. Such
payments shall constitute the Investors’ exclusive monetary remedy for such events, but shall not
affect the right of the Investors to seek injunctive relief. Such payments shall be made to each
Investor in cash no later than three (3) Business Days after the end of each 30-day period.
Notwithstanding anything herein or in the Purchase Agreement to the contrary, (i) in no event shall
the aggregate liquidated damages payable pursuant to this Agreement exceed in the aggregate ten
percent (10%) of the aggregate purchase price of the Shares paid to the Investors pursuant to the
Purchase Agreement.
(b) Expenses. The Company will pay all expenses associated with each
registration, including filing and printing fees, the Company’s counsel and accounting fees and
expenses, costs associated with clearing the Registrable Securities for sale under applicable state
securities laws, listing fees, reasonable fees and expenses of one counsel to the Investors and the
Investors’ reasonable expenses in connection with the registration, but excluding discounts,
commissions, fees of underwriters, selling brokers, dealer managers or similar securities
industry professionals with respect to the Registrable Securities being sold.
(c) Effectiveness.
(i) The Company shall use commercially reasonable efforts to have the Registration Statement
declared effective as soon as practicable. The Company shall notify the Investors by facsimile or
e-mail as promptly as practicable, and in any event, within twenty-four (24) hours, after any
Registration Statement is declared effective and shall simultaneously provide the Investors with
copies of any related Prospectus to be used in connection with the sale or other disposition of the
securities covered thereby. If (A)(x) a Registration Statement covering the Registrable Securities
is not declared effective by the SEC prior to the Effectiveness Deadline, or (y) a Registration
Statement covering Additional Shares is not declared effective by the SEC prior to Additional
Shares Effectiveness Date, or (B) after a Registration Statement has been declared effective by the
SEC, sales cannot be made pursuant to such Registration Statement for any reason (including without
limitation by reason of a stop order, or the Company’s failure to update the Registration
Statement), then the Company will make pro rata payments to each Investor holding Registrable
Securities or Additional Shares, as liquidated damages and not as a penalty, in an amount equal to
1.5% of the aggregate amount invested by such Investor for each 30-day period or pro rata for any
portion thereof following the date by which such Registration Statement should have been effective
(the “Blackout Period”), but
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excluding any Allowed Delay (as defined below) or the inability of any Investor to sell the
Registrable Securities covered thereby due to market conditions. Such payments shall constitute
the Investors’ exclusive monetary remedy for such events, but shall not affect the right of the
Investors to seek injunctive relief. The amounts payable as liquidated damages pursuant to this
paragraph shall be paid monthly within three (3) Business Days of the last day of each 30-day
period following the commencement of the Blackout Period until the termination of the Blackout
Period. Such payments shall be made to each such Investor in cash. Notwithstanding anything
herein or in the Purchase Agreement to the contrary, in no event shall the aggregate liquidated
damages payable pursuant to this Agreement exceed in the aggregate ten percent (10%) of the
aggregate purchase price of the Shares paid to the Investors pursuant to the Purchase Agreement.
(ii) For not more than twenty (20) consecutive days or for a total of not more than forty-five
(45) days in any twelve (12) month period, the Company may suspend the use of any Prospectus
included in any Registration Statement contemplated by this Section 2(c) in the event that
the Company determines in good faith that such suspension is necessary to (A) delay the disclosure
of material non-public information concerning the Company, the disclosure of which at the time is
not, in the good faith opinion of the Company, in the best interests of the Company or (B) amend or
supplement the affected Registration Statement or the related Prospectus so that such Registration
Statement or Prospectus shall not include 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 the
case of the Prospectus in light of the circumstances under which they were made, not misleading (an
“Allowed Delay”); provided, that the Company shall promptly (a) notify each Investor in
writing of the commencement of and the reasons for an Allowed Delay, but shall not (without the
prior written consent of an Investor) disclose to such Investor any material non-public information
giving rise to an Allowed Delay, (b) advise the Investors in writing to cease all sales under the
Registration Statement until the end of the Allowed Delay and (c) use commercially reasonable
efforts to terminate the Allowed Delay as promptly as practicable.
(d) Rule 415; Cutback If at any time the SEC takes the position that the offering of
some or all of the Registrable Securities in a Registration Statement is not eligible to be made on
a delayed or continuous basis under the provisions of Rule 415 under the 1933 Act or requires any
Investor to be named as an “underwriter”, the Company shall use its best efforts to persuade the
SEC that the offering contemplated by the Registration Statement is a valid secondary offering and
not an offering “by or on behalf of the issuer” as defined in Rule 415 and that none of the
Investors is an “underwriter”. The Investors shall have the right to participate or have their
counsel participate in any meetings or discussions with the SEC regarding the SEC’s position and to
comment or have their counsel comment on any written submission made to the SEC with respect
thereto. No such written submission shall be made to the SEC to which the Investors’ counsel
reasonably objects. In the event that, despite the Company’s best efforts and compliance with the
terms of this Section 2(d), the SEC refuses to alter its position, the Company shall (i)
remove from the Registration Statement such portion of the Registrable Securities (the “Cut
Back Shares”) and/or (ii) agree to such restrictions and limitations on the registration and
resale of the Registrable Securities as the SEC may require to assure the Company’s compliance with
the requirements of Rule 415 (collectively, the “SEC Restrictions”); provided, however,
that the Company shall not agree to name any Investor as an
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“underwriter” in such Registration Statement without the prior written consent of such
Investor. Any cut-back imposed on the Investors pursuant to this Section 2(d) shall be
allocated among the Investors on a pro rata basis and shall be applied first to any Warrant Shares,
unless the SEC Restrictions otherwise require or provide or the Investors otherwise agree. No
liquidated damages shall accrue as to any Cut Back Shares until such date as the Company is able to
effect the registration of such Cut Back Shares in accordance with any SEC Restrictions (such date,
the “Restriction Termination Date” of such Cut Back Shares). From and after the
Restriction Termination Date applicable to any Cut Back Shares, all of the provisions of this
Section 2 (including the liquidated damages provisions) shall again be applicable to such
Cut Back Shares; provided, however, that (i) the Filing Deadline and/or the Additional Shares
Filing Deadline, as applicable, for the Registration Statement including such Cut Back Shares shall
be ten (10) Business Days after such Restriction Termination Date, and (ii) the date by which the
Company is required to obtain effectiveness with respect to such Cut Back Shares under Section
2(c) shall be the 90th day immediately after the Restriction Termination Date.
(e) Selling Stockholder Questionnaires. Each Investor agrees to furnish to the
Company a completed Questionnaire in the form attached to this Agreement as Exhibit B (a
“Selling Stockholder Questionnaire”) not more than ten (10) Business Days following the
date of this Agreement. Each Investor further agrees that it shall not be entitled to be named as a
selling securityholder in a Registration Statement or use the Prospectus for offers and resales of
Registrable Securities at any time, unless such Investor has returned to the Company a completed
and signed Selling Stockholder Questionnaire. The Company shall not be required to include the
Registrable Securities of a Investor in a Registration Statement and shall not be required to pay
any liquidated damages under Section 2(a) or Section 2(c) hereof to any Investor
who fails to furnish the Company a fully completed Selling Stockholder Questionnaire at least three
(3) Business Days prior to the Filing Deadline. If an Investor returns a Selling Stockholder
Questionnaire after the deadline specified in the previous sentence, the Company shall use its
commercially reasonable efforts to take such actions as are required to name such Investor as a
selling security Investor in the Registration Statement or any pre-effective or post-effective
amendment thereto and to include (to the extent not theretofore included) in the Registration
Statement the Registrable Securities identified in such late Selling Stockholder Questionnaire.
Each Investor acknowledges and agrees that the information in the Selling Stockholder Questionnaire
will be used by the Company in the preparation of the Registration Statement and hereby consents to
the inclusion of such information in the Registration Statement.
3. Company Obligations. The Company will use commercially reasonable efforts to
effect the registration of the Registrable Securities in accordance with the terms hereof, and
pursuant thereto the Company will, as expeditiously as possible:
(a) use commercially reasonable efforts to cause such Registration Statement to become
effective and to remain continuously effective for a period that will terminate upon the earlier of
(i) the date on which all Registrable Securities covered by such Registration Statement as amended
from time to time, have been sold, and (ii) the date on which all Registrable Securities covered by
such Registration Statement may be sold without restriction pursuant to Rule 144 (the
“Effectiveness Period”) and advise the Investors in writing when the Effectiveness Period
has expired;
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(b) prepare and file with the SEC such amendments and post-effective amendments to the
Registration Statement and the Prospectus as may be necessary to keep the Registration Statement
effective for the Effectiveness Period and to comply with the provisions of the 1933 Act and the
1934 Act with respect to the distribution of all of the Registrable Securities covered thereby;
(c) provide copies to and permit counsel designated by the Investors to review each
Registration Statement and all amendments and supplements thereto no fewer than seven (7) days
prior to their filing with the SEC and not file any document to which such counsel reasonably
objects;
(d) furnish to the Investors and their legal counsel (i) promptly after the same is prepared
and publicly distributed, filed with the SEC, or received by the Company (but not later than two
(2) Business Days after the filing date, receipt date or sending date, as the case may be) one (1)
copy of any Registration Statement and any amendment thereto, each preliminary prospectus and
Prospectus and each amendment or supplement thereto, and each letter written by or on behalf of the
Company to the SEC or the staff of the SEC, and each item of correspondence from the SEC or the
staff of the SEC, in each case relating to such Registration Statement (other than any portion of
any thereof which contains information for which the Company has sought confidential treatment),
and (ii) such number of copies of a Prospectus, including a preliminary prospectus, and all
amendments and supplements thereto and such other documents as each Investor may reasonably request
in order to facilitate the disposition of the Registrable Securities owned by such Investor that
are covered by the related Registration Statement;
(e) use commercially reasonable efforts to (i) prevent the issuance of any stop order or other
suspension of effectiveness and, (ii) if such order is issued, obtain the withdrawal of any such
order at the earliest possible moment;
(f) prior to any public offering of Registrable Securities, use commercially reasonable
efforts to register or qualify or cooperate with the Investors and their counsel in connection with
the registration or qualification of such Registrable Securities for offer and sale under the
securities or blue sky laws of such jurisdictions requested by the Investors and do any and all
other commercially reasonable acts or things necessary or advisable to enable the distribution in
such jurisdictions of the Registrable Securities covered by the Registration Statement; provided,
however, that the Company shall not be required in connection therewith or as a condition thereto
to (i) qualify to do business in any jurisdiction where it would not otherwise be required to
qualify but for this Section 3(f), (ii) subject itself to general taxation in any
jurisdiction where it would not otherwise be so subject but for this Section 3(f), or (iii)
file a general consent to service of process in any such jurisdiction;
(g) use commercially reasonable efforts to cause all Registrable Securities covered by a
Registration Statement to be listed on each securities exchange, interdealer quotation system or
other market on which similar securities issued by the Company are then listed;
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(h) immediately notify the Investors, at any time prior to the end of the Effectiveness
Period, upon discovery that, or upon the happening of any event as a result of which, the
Prospectus includes an untrue statement of a material fact or omits to state any material fact
required to be stated therein or necessary to make the statements therein not misleading in light
of the circumstances then existing, and promptly prepare, file with the SEC and furnish to such
holder a supplement to or an amendment of such Prospectus as may be necessary so that such
Prospectus shall not include 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 not misleading in
light of the circumstances then existing;
(i) otherwise use commercially reasonable efforts to comply with all applicable rules and
regulations of the SEC under the 1933 Act and the 1934 Act, including, without limitation, Rule 172
under the 1933 Act, file any final Prospectus, including any supplement or amendment thereof, with
the SEC pursuant to Rule 424 under the 1933 Act, promptly inform the Investors in writing if, at
any time during the Effectiveness Period, the Company does not satisfy the conditions specified in
Rule 172 and, as a result thereof, the Investors are required to deliver a Prospectus in connection
with any disposition of Registrable Securities and take such other actions as may be reasonably
necessary to facilitate the registration of the Registrable Securities hereunder; and make
available to its security holders, as soon as reasonably practicable, but not later than the
Availability Date (as defined below), an earnings statement covering a period of at least twelve
(12) months, beginning after the effective date of each Registration Statement, which earnings
statement shall satisfy the provisions of Section 11(a) of the 1933 Act, including Rule 158
promulgated thereunder (for the purpose of this Section 3(i), “Availability Date”
means the 45th day following the end of the fourth fiscal quarter that includes the effective date
of such Registration Statement, except that, if such fourth fiscal quarter is the last quarter of
the Company’s fiscal year, “Availability Date” means the 90th day after the end of such fourth
fiscal quarter); and
(j) With a view to making available to the Investors the benefits of Rule 144 (or its
successor rule) and any other rule or regulation of the SEC that may at any time permit the
Investors to sell shares of Common Stock to the public without registration, the Company covenants
and agrees to: (i) make and keep public information available, as those terms are understood and
defined in Rule 144, until the earlier of (A) six months after such date as all of the Registrable
Securities may be sold without restriction by the holders thereof pursuant to Rule 144 or any other
rule of similar effect or (B) such date as all of the Registrable Securities shall have been
resold; (ii) file with the SEC in a timely manner all reports and other documents required of the
Company under the 1934 Act; and (iii) furnish to each Investor upon request, as long as such
Investor owns any Registrable Securities, (A) a written statement by the Company that it has
complied with the reporting requirements of the 1934 Act, (B) a copy of the Company’s most recent
Annual Report on Form 10-K or Quarterly Report on Form 10-Q, and (C) such other information as may
be reasonably requested in order to avail such Investor of any rule or regulation of the SEC that
permits the selling of any such Registrable Securities without registration.
4. Due Diligence Review; Information. The Company shall make available, during normal
business hours upon reasonable advance notice, for inspection and review by the
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Investors, advisors to and representatives of the Investors (who may or may not be affiliated
with the Investors and who are reasonably acceptable to the Company), all financial and other
records, all SEC Filings (as defined in the Purchase Agreement) and other filings with the SEC, and
all other corporate documents and properties of the Company as may be reasonably necessary for the
purpose of such review, and cause the Company’s officers, directors and employees, within a
reasonable time period, to supply all such information reasonably requested by the Investors or any
such representative, advisor or underwriter in connection with such Registration Statement
(including, without limitation, in response to all questions and other inquiries reasonably made or
submitted by any of them), prior to and from time to time after the filing and effectiveness of the
Registration Statement for the sole purpose of enabling the Investors and such representatives,
advisors and underwriters and their respective accountants and attorneys to conduct initial and
ongoing due diligence with respect to the Company and the accuracy of such Registration Statement.
The Company shall not disclose or be required to disclose material nonpublic information to
the Investors, or to advisors to or representatives of the Investors, unless prior to disclosure of
such information the Company identifies such information as being material nonpublic information
and provides the Investors, such advisors and representatives with the opportunity to accept or
refuse to accept such material nonpublic information for review and any Investor wishing to obtain
such information enters into an appropriate confidentiality agreement with the Company with respect
thereto.
5. Obligations of the Investors.
(a) Each Investor shall furnish in writing to the Company such information regarding itself,
the Registrable Securities held by it and the intended method of disposition of the Registrable
Securities held by it, as shall be reasonably required to effect the registration of such
Registrable Securities and shall execute such documents in connection with such registration as the
Company may reasonably request. At least five (5) Business Days prior to the first anticipated
filing date of any Registration Statement, the Company shall notify each Investor of the
information the Company requires from such Investor if such Investor elects to have any of the
Registrable Securities included in the Registration Statement. An Investor shall provide such
information to the Company at least two (2) Business Days prior to the first anticipated filing
date of such Registration Statement if such Investor elects to have any of the Registrable
Securities included in the Registration Statement.
(b) Each Investor, by its acceptance of the Registrable Securities agrees to cooperate with
the Company as reasonably requested by the Company in connection with the preparation and filing of
a Registration Statement hereunder, unless such Investor has notified the Company in writing of its
election to exclude all of its Registrable Securities from such Registration Statement.
(c) Each Investor agrees that, upon receipt of any notice from the Company of either (i) the
commencement of an Allowed Delay pursuant to Section 2(c)(ii) or (ii) the happening of an
event pursuant to Section 3(h) hereof, such Investor will immediately discontinue
disposition of Registrable Securities pursuant to the Registration Statement covering
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such Registrable Securities, until the Investor is advised by the Company that such
dispositions may again be made.
6. Indemnification.
(a) Indemnification by the Company. To the fullest extent permitted by law, the
Company will indemnify and hold harmless each Investor and its officers, directors, members,
employees and agents, representatives, successors and assigns, and each other person, if any, who
controls such Investor within the meaning of the 1933 Act (each an “Indemnified Person”),
against any losses, claims, damages or liabilities, joint or several, to which they may become
subject under the 1933 Act, including, without limitation, court costs, attorneys’ fees, and costs
of defense and investigation, amounts paid in settlement or expenses (collectively,
“Claims”), insofar as such Claims arise out of or are based upon: (i) any untrue statement
or alleged untrue statement or omission or alleged omission of any material fact contained in any
Registration Statement, any preliminary Prospectus or final Prospectus, or any amendment or
supplement thereof; (ii) any blue sky application or other document executed by the Company
specifically for that purpose or based upon written information furnished by the Company filed in
any state or other jurisdiction in order to qualify any or all of the Registrable Securities under
the securities laws thereof (any such application, document or information herein called a
“Blue Sky Application”); (iii) the omission or alleged omission to state in a Blue Sky
Application a material fact required to be stated therein or necessary to make the statements
therein not misleading; (iv) any violation by the Company or its agents of any rule or regulation
promulgated under the 1933 Act applicable to the Company or its agents and relating to action or
inaction required of the Company in connection with such registration; or (v) any failure to
register or qualify the Registrable Securities included in any such Registration Statement in any
state where the Company or its agents has affirmatively undertaken or agreed in writing that the
Company will undertake such registration or qualification on an Investor’s behalf and will
reimburse such Investor, and each such officer, director or member and each such controlling person
for any legal or other expenses reasonably incurred by them in connection with investigating or
defending any such loss, claim, damage, liability or action; provided, however,
that the Company will not be liable in any such case if and to the extent that any such loss,
claim, damage or liability arises out of or is based upon an untrue statement or alleged untrue
statement or omission or alleged omission so made in conformity with information furnished by such
Investor or any such controlling person in writing specifically for use in such Registration
Statement or Prospectus unless the Company failed to update and correct such information after
being notified in writing by such Investor. The Company shall reimburse each Indemnified Person
promptly as such expenses are incurred and due and payable, for any legal fees or other expenses
incurred by them in connection with investigating or defending any Claim.
(b) Indemnification by the Investors. Each Investor agrees, severally but not
jointly, to indemnify and hold harmless, to the fullest extent permitted by law, the Company, its
directors, officers, employees, stockholders and each person who controls the Company (within the
meaning of the 0000 Xxx) against any losses, claims, damages, liabilities and expense (including
reasonable attorney fees) resulting from any untrue statement of a material fact or any omission of
a material fact required to be stated in the Registration Statement or Prospectus or preliminary
Prospectus or amendment or supplement thereto or necessary to make the statements therein not
misleading, to the extent, but only to the extent that such untrue statement or
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omission is contained in any information furnished in writing by such Investor to the Company
specifically for inclusion in such Registration Statement or Prospectus or amendment or supplement
thereto unless the Company failed to update and correct such information after being notified in
writing by such Investor. In no event shall the liability of an Investor be greater in amount than
the dollar amount of the proceeds (net of all expenses paid by such Investor in connection with any
claim relating to this Section 6 and the amount of any damages such Investor has otherwise
been required to pay by reason of such untrue statement or omission) received by such Investor upon
the sale of the Registrable Securities included in the Registration Statement giving rise to such
indemnification obligation.
(c) Conduct of Indemnification Proceedings. Any person entitled to indemnification
hereunder shall (i) give prompt notice to the indemnifying party of any claim with respect to which
it seeks indemnification and (ii) permit such indemnifying party to assume the defense of such
claim with counsel reasonably satisfactory to the indemnified party; provided that any
person entitled to indemnification hereunder shall have the right to employ separate counsel and to
participate in the defense of such claim, but the fees and expenses of such counsel shall be at the
expense of such person unless (a) the indemnifying party has agreed to pay such fees or expenses,
or (b) the indemnifying party shall have failed to assume the defense of such claim and employ
counsel reasonably satisfactory to such person or (c) in the reasonable judgment of any such
person, based upon written advice of its counsel, a conflict of interest exists between such person
and the indemnifying party with respect to such claims (in which case, if the person notifies the
indemnifying party in writing that such person elects to employ separate counsel at the expense of
the indemnifying party, the indemnifying party shall not have the right to assume the defense of
such claim on behalf of such person); and provided, further, that the failure of
any indemnified party to give notice as provided herein shall not relieve the indemnifying party of
its obligations hereunder, except to the extent that such failure to give notice shall materially
adversely affect the indemnifying party in the defense of any such claim or litigation. It is
understood that the indemnifying party shall not, in connection with any proceeding in the same
jurisdiction, be liable for fees or expenses of more than one separate firm of attorneys at any
time for all such indemnified parties. No indemnifying party will, except with the consent of the
indemnified party, consent to entry of any judgment or enter into any settlement that does not
include as an unconditional term thereof the giving by the claimant or plaintiff to such
indemnified party of a release from all liability in respect of such claim or litigation. No
indemnifying party will be liable to any indemnified party under this Agreement for any settlement
by such indemnified party effected without the indemnifying party’s prior written consent, which
shall not be unreasonably withheld, conditioned or delayed.
(d) Contribution. If for any reason the indemnification provided for in the preceding
paragraphs (a) and (b) is unavailable to an indemnified party or insufficient to hold it harmless,
other than as expressly specified therein, then the indemnifying party shall contribute to the
amount paid or payable by the indemnified party as a result of such loss, claim, damage or
liability in such proportion as is appropriate to reflect the relative fault of the indemnified
party and the indemnifying party, as well as any other relevant equitable considerations. No
person guilty of fraudulent misrepresentation within the meaning of Section 11(f) of the 1933 Act
shall be entitled to contribution from any person not guilty of such fraudulent misrepresentation.
In no event shall the contribution obligation of a holder of Registrable Securities be greater in
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amount than the dollar amount of the proceeds (net of all expenses paid by such holder in connection
with any claim relating to this Section 6 and the amount of any damages such holder has
otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or
alleged omission) received by it upon the sale of the Registrable Securities giving rise to such
contribution obligation.
7. Miscellaneous.
(a) Amendments and Waivers. This Agreement may be amended only by a writing signed by
the Company and the Required Investors. The Company may take any action herein prohibited, or omit
to perform any act herein required to be performed by it, only if the Company shall have obtained
the written consent to such amendment, action or omission to act, of the Required Investors.
(b) Notices. All notices and other communications provided for or permitted hereunder
shall be made as set forth in Section 9.4 of the Purchase Agreement.
(c) Assignments and Transfers by Investors. The provisions of this Agreement shall be
binding upon and inure to the benefit of the Investors and their respective successors and assigns.
An Investor may transfer or assign, in whole or from time to time in part, to one or more persons
its rights hereunder in connection with the transfer of Registrable Securities by such Investor to
such person, provided that such Investor complies with all laws applicable thereto and provides
written notice of assignment to the Company promptly after such assignment is effected.
(d) Assignments and Transfers by the Company. This Agreement may not be assigned by
the Company (whether by operation of law or otherwise) without the prior written consent of the
Required Investors, provided, however, that in the event that the Company is a party to a merger,
consolidation, share exchange or similar business combination transaction in which the Common Stock
is converted into the equity securities of another Person, from and after the effective time of
such transaction, such Person shall, by virtue of such transaction, be deemed to have assumed the
obligations of the Company hereunder, the term “Company” shall be deemed to refer to such Person
and the term “Registrable Securities” shall be deemed to include the securities received by the
Investors in connection with such transaction unless such securities are otherwise freely tradable
by the Investors after giving effect to such transaction.
(e) Benefits of the Agreement. The terms and conditions of this Agreement shall inure
to the benefit of and be binding upon the respective permitted successors and assigns of the
parties. Nothing in this Agreement, express or implied, is intended to confer upon any party other
than the parties hereto or their respective successors and assigns any rights, remedies,
obligations, or liabilities under or by reason of this Agreement, except as expressly provided in
this Agreement.
(f) Counterparts; Faxes. This Agreement may be executed in two or more counterparts,
each of which shall be deemed an original, but all of which together shall constitute one and the
same instrument. This Agreement may also be executed via facsimile, which shall be deemed an
original.
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(g) Titles and Subtitles. The titles and subtitles used in this Agreement are
used for convenience only and are not to be considered in construing or interpreting this
Agreement.
(h) Severability. Any provision of this Agreement that is prohibited or unenforceable
in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such
prohibition or unenforceability without invalidating the remaining provisions hereof but shall be
interpreted as if it were written so as to be enforceable to the maximum extent permitted by
applicable law, and any such prohibition or unenforceability in any jurisdiction shall not
invalidate or render unenforceable such provision in any other jurisdiction. To the extent
permitted by applicable law, the parties hereby waive any provision of law which renders any
provisions hereof prohibited or unenforceable in any respect.
(i) Further Assurances. The parties shall execute and deliver all such further
instruments and documents and take all such other actions as may reasonably be required to carry
out the transactions contemplated hereby and to evidence the fulfillment of the agreements herein
contained.
(j) Entire Agreement. This Agreement is intended by the parties as a final expression
of their agreement and intended to be a complete and exclusive statement of the agreement and
understanding of the parties hereto in respect of the subject matter contained herein. This
Agreement supersedes all prior agreements and understandings between the parties with respect to
such subject matter.
(k) Governing Law; Consent to Jurisdiction; Waiver of Jury Trial. This Agreement
shall be governed by, and construed in accordance with, the internal laws of the State of New York
without regard to the choice of law principles thereof. Each of the parties hereto irrevocably
submits to the exclusive jurisdiction of the courts of the State of New York located in New York
County and the United States District Court for the Southern District of New York for the purpose
of any suit, action, proceeding or judgment relating to or arising out of this Agreement and the
transactions contemplated hereby. Service of process in connection with any such suit, action or
proceeding may be served on each party hereto anywhere in the world by the same methods as are
specified for the giving of notices under this Agreement. Each of the parties hereto irrevocably
consents to the jurisdiction of any such court in any such suit, action or proceeding and to the
laying of venue in such court. Each party hereto irrevocably waives any objection to the laying of
venue of any such suit, action or proceeding brought in such courts and irrevocably waives any
claim that any such suit, action or proceeding brought in any such court has been brought in an
inconvenient forum. EACH OF THE PARTIES HERETO WAIVES ANY RIGHT TO REQUEST A TRIAL BY JURY IN ANY
LITIGATION WITH RESPECT TO THIS AGREEMENT AND REPRESENTS THAT COUNSEL HAS BEEN CONSULTED
SPECIFICALLY AS TO THIS WAIVER.
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IN WITNESS WHEREOF, the parties have executed this Registration Rights Agreement as of the
date first above written.
| MAD CATZ INTERACTIVE, INC. |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK,
SIGNATURE PAGES OF INVESTORS TO FOLLOW]
SIGNATURE PAGES OF INVESTORS TO FOLLOW]
IN WITNESS WHEREOF, the parties have executed this Registration Rights Agreement as of the
date first written above.
| NAME OF INVESTOR: | |||
| AUTHORIZED SIGNATORY |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
Exhibit A
Plan of Distribution
The selling stockholders, which as used herein includes donees, pledgees, transferees or other
successors-in-interest selling shares of common stock or interests in shares of common stock
received after the date of this prospectus from a selling stockholder as a gift, pledge,
partnership distribution or other transfer, may, from time to time, sell, transfer or otherwise
dispose of any or all of their shares of common stock or interests in shares of common stock on any
United States stock exchange, market or trading facility on which the shares are traded or in
private transactions. These dispositions may be at fixed prices, at prevailing market prices at
the time of sale, at prices related to the prevailing market price, at varying prices determined at
the time of sale, or at negotiated prices.
The selling stockholders may use any one or more of the following methods when disposing of
shares or interests therein:
• ordinary brokerage transactions and transactions in which the broker-dealer solicits
purchasers;
• block trades in which the broker-dealer will attempt to sell the shares as agent, but may
position and resell a portion of the block as principal to facilitate the transaction;
• purchases by a broker-dealer as principal and resale by the broker-dealer for its account;
• an exchange distribution in accordance with the rules of the applicable exchange;
• privately negotiated transactions;
• short sales effected after the date the registration statement of which this Prospectus is a
part is declared effective by the SEC;
• through the writing or settlement of options or other hedging transactions, whether through
an options exchange or otherwise;
• broker-dealers may agree with the selling stockholders to sell a specified number of such
shares at a stipulated price per share;
• a combination of any such methods of sale; and
• any other method permitted by applicable law.
The selling stockholders may, from time to time, pledge or grant a security interest in some
or all of the shares of common stock owned by them and, if they default in the performance of their
secured obligations, the pledgees or secured parties may offer and sell the shares of
common stock, from time to time, under this prospectus, or under an amendment to this
A-1
prospectus
under Rule 424(b)(3) or other applicable provision of the 1933 Act amending the list of selling
stockholders to include the pledgee, transferee or other successors in interest as selling
stockholders under this prospectus. The selling stockholders also may transfer the shares of
common stock in other circumstances, in which case the transferees, pledgees or other successors in
interest will be the selling beneficial owners for purposes of this prospectus.
In connection with the sale of our common stock or interests therein, the selling stockholders
may enter into hedging transactions with broker-dealers or other financial institutions, which may
in turn engage in short sales of the common stock in the course of hedging the positions they
assume. The selling stockholders may also sell shares of our common stock short and deliver these
securities to close out their short positions, or loan or pledge the common stock to broker-dealers
that in turn may sell these securities. The selling stockholders may also enter into option or
other transactions with broker-dealers or other financial institutions or the creation of one or
more derivative securities which require the delivery to such broker-dealer or other financial
institution of shares offered by this prospectus, which shares such broker-dealer or other
financial institution may resell pursuant to this prospectus (as supplemented or amended to reflect
such transaction).
The aggregate proceeds to the selling stockholders from the sale of the common stock offered
by them will be the purchase price of the common stock less discounts or commissions, if any. Each
of the selling stockholders reserves the right to accept and, together with their agents from time
to time, to reject, in whole or in part, any proposed purchase of common stock to be made directly
or through agents. We will not receive any of the proceeds from this offering. Upon any exercise
of the warrants by payment of cash, however, we will receive the exercise price of the warrants.
The selling stockholders also may resell all or a portion of the shares in open market
transactions in reliance upon Rule 144 under the 1933 Act, provided that they meet the criteria and
conform to the requirements of that rule.
The selling stockholders and any underwriters, broker-dealers or agents that participate in
the sale of the common stock or interests therein may be “underwriters” within the meaning of
Section 2(11) of the 1933 Act. Any discounts, commissions, concessions or profit they earn on any
resale of the shares may be underwriting discounts and commissions under the 1933 Act. Selling
stockholders who are “underwriters” within the meaning of Section 2(11) of the 1933 Act will be
subject to the prospectus delivery requirements of the 1933 Act.
To the extent required, the shares of our common stock to be sold, the names of the selling
stockholders, the respective purchase prices and public offering prices, the names of any agents,
dealer or underwriter, any applicable commissions or discounts with respect to a particular offer
will be set forth in an accompanying prospectus supplement or, if appropriate, a post-effective
amendment to the registration statement that includes this prospectus.
In order to comply with the securities laws of some states, if applicable, the common stock
may be sold in these jurisdictions only through registered or licensed brokers or dealers. In
addition, in some states the common stock may not be sold unless it has been registered or
A-2
qualified for sale or an exemption from registration or qualification requirements is available and
is complied with.
We have advised the selling stockholders that the anti-manipulation rules of Regulation M
under the 1934 Act may apply to sales of shares in the market and to the activities of the selling
stockholders and their affiliates. In addition, to the extent applicable we will make copies of
this prospectus (as it may be supplemented or amended from time to time) available to the selling
stockholders for the purpose of satisfying the prospectus delivery requirements of the 1933 Act.
The selling stockholders may indemnify any broker-dealer that participates in transactions
involving the sale of the shares against certain liabilities, including liabilities arising under
the 1933 Act.
We have agreed to indemnify the selling stockholders against liabilities, including
liabilities under the 1933 Act and state securities laws, relating to the registration of the
shares offered by this prospectus.
We have agreed with the selling stockholders to keep the registration statement of which this
prospectus constitutes a part effective until the earlier of (1) such time as all of the shares
covered by this prospectus have been disposed of pursuant to and in accordance with the
registration statement or (2) the date on which all of the shares may be sold without restriction
pursuant to Rule 144 of the 1933 Act.
A-3
Exhibit B
MAD CATZ INTERACTIVE, INC.
SELLING STOCKHOLDER NOTICE AND QUESTIONNAIRE
The undersigned holder of shares of the common stock, no par value, of Mad Catz Interactive,
Inc., a corporation organized under the Canada Business Corporations Act (the “Company”)
and warrants to acquire such common stock, issued pursuant to a certain Securities Purchase
Agreement by and among the Company and the Investors named therein, dated as of April ___, 2011
(the “Agreement”), understands that the Company intends to file with the SEC a registration
statement on Form S-3 or such other form available to register for resale those Registrable
Securities (the “Resale Registration Statement”) for the registration and the resale under
Rule 415 of the Securities Act of 1933, as amended (the “Securities Act”), of the
Registrable Securities in accordance with the terms of the Agreement. All capitalized terms not
otherwise defined herein shall have the meanings ascribed thereto in the Agreement.
In order to sell or otherwise dispose of any Registrable Securities pursuant to the Resale
Registration Statement, a holder of Registrable Securities generally will be required to be named
as a selling stockholder in the related prospectus or a supplement thereto (as so supplemented, the
“Prospectus”), deliver the Prospectus to purchasers of Registrable Securities and be bound
by the provisions of the Agreement (including certain indemnification provisions, as described
below). Investors must complete and deliver this Notice and Questionnaire in order to be named as
selling stockholders in the Prospectus. Holders of Registrable Securities who do not complete,
execute and return this Notice and Questionnaire within ten (10) Business Days following the date
of the Agreement (1) will not be named as selling stockholders in the Resale Registration Statement
or the Prospectus and (2) may not use the Prospectus for resales of Registrable Securities.
Certain legal consequences arise from being named as a selling stockholder in the Resale
Registration Statement and the Prospectus. Holders of Registrable Securities are advised to
consult their own securities law counsel regarding the consequences of being named or not named as
a selling stockholder in the Resale Registration Statement and the Prospectus.
NOTICE
The undersigned holder (the “Selling Stockholder”) of Registrable Securities hereby
gives notice to the Company of its intention to sell or otherwise dispose of Registrable Securities
owned by it and listed below in Item (3), unless otherwise specified in Item (3), pursuant to the
Resale Registration Statement. The undersigned, by signing and returning this Notice and
Questionnaire, understands and agrees that it will be bound by the terms and conditions of this
Notice and Questionnaire and the Agreement.
The undersigned hereby provides the following information to the Company and represents and
warrants that such information is accurate and complete:
QUESTIONNAIRE
| 1. | Name. |
(a)
|
Full Legal Name of Selling Stockholder: | |
B-1
(b)
|
Full Legal Name of Registered Holder (if not the same as (a) above) through which Registrable Securities Listed in Item 3 below are held: | |
(c)
|
Full Legal Name of Natural Control Person (which means a natural person who directly or indirectly alone or with others has power to vote or dispose of the securities covered by the questionnaire): | |
| 2. | Address for Notices to Selling Stockholder: |
Telephone:
Fax:
Contact
Person:
E-mail
address of Contact
Person:
| 3. | Beneficial Ownership of Registrable Securities Issuable Pursuant to the Purchase Agreement: |
(a)
|
Type and Number of Registrable Securities beneficially owned and issued pursuant to the Agreement: | |
(b)
|
Number of shares of Common Stock to be registered pursuant to this Notice for resale: | |
| 4. | Broker-Dealer Status: |
(a)
|
Are you a broker-dealer? |
Yes o No o
(b)
|
If “yes” to Section 4(a), did you receive your Registrable Securities as compensation for investment banking services to the Company? |
Yes o No o
B-2
Note:
|
If no, the Commission’s staff has indicated that you should be identified as an underwriter in the Registration Statement. |
| (c) | Are you an affiliate of a broker-dealer? |
Yes o No o
| Note: | If yes, provide a narrative explanation below: | |||
| (c) | If you are an affiliate of a broker-dealer, do you certify that you bought the Registrable Securities in the ordinary course of business, and at the time of the purchase of the Registrable Securities to be resold, you had no agreements or understandings, directly or indirectly, with any person to distribute the Registrable Securities? |
Yes o No o
| Note: | If no, the Commission’s staff has indicated that you should be identified as an underwriter in the Registration Statement. |
| 5. | Beneficial Ownership of Other Securities of the Company Owned by the Selling Stockholder. |
| Except as set forth below in this Item 5, the undersigned is not the beneficial or registered owner of any securities of the Company other than the Registrable Securities listed above in Item 3. |
| (a) | Type and Amount of other securities beneficially owned: |
| 6. | Relationships with the Company: |
| Except as set forth below, neither the undersigned nor any of its affiliates, officers, directors or principal equity holders (owners of 5% of more of the equity securities of the undersigned) has held any position or office or has had any other material relationship with the Company (or its predecessors or affiliates) during the past three years. | |||
| State any exceptions here: |
| 7. | Plan of Distribution: |
| The undersigned has reviewed the form of Plan of Distribution attached as Annex A to the Registration Rights Agreement, and hereby confirms that, except as set forth below, the information contained therein regarding the undersigned and its plan of distribution is correct and complete. |
B-3
| State any exceptions here: |
***********
The undersigned agrees to promptly notify the Company of any inaccuracies or changes in the
information provided herein that may occur subsequent to the date hereof and prior to the effective
date of any applicable Resale Registration Statement. All notices hereunder and pursuant to the
Agreement shall be made in writing, by hand delivery, confirmed or facsimile transmission,
first-class mail or air courier guaranteeing overnight delivery at the address set forth below. In
the absence of any such notification, the Company shall be entitled to continue to rely on the
accuracy of the information in this Notice and Questionnaire.
By signing below, the undersigned consents to the disclosure of the information contained herein in
its answers to Items (1) through (7) above and the inclusion of such information in the Resale
Registration Statement and the Prospectus. The undersigned understands that such information will
be relied upon by the Company in connection with the preparation or amendment of any such
Registration Statement and the related prospectus.
By signing below, the undersigned acknowledges that it understands its obligation to comply, and
agrees that it will comply, with the provisions of the 1934 Act and the rules and regulations
thereunder, particularly Regulation M in connection with any offering of Registrable Securities
pursuant to the Resale Registration Statement. The undersigned also acknowledges that it
understands that the answers to this Questionnaire are furnished for use in connection with
Registration Statements filed pursuant to the Registration Rights Agreement and any amendments or
supplements thereto filed with the SEC pursuant to the 1933 Act.
The undersigned hereby acknowledges and is advised of the following Interpretation A.65 of the July
1997 SEC Manual of Publicly Available Telephone Interpretations regarding short selling:
“An Issuer filed a Form S-3 registration statement for a secondary offering of common stock which
is not yet effective. One of the selling stockholders wanted to do a short sale of common stock
“against the box” and cover the short sale with registered shares after the effective date. The
issuer was advised that the short sale could not be made before the registration statement become
effective, because the shares underlying the short sale are deemed to be sold at the time such sale
is made. There would, therefore, be a violation of Section 5 if the shares were effectively sold
prior to the effective date.”
By returning this Questionnaire, the undersigned will be deemed to be aware of the foregoing
interpretation.
I confirm that, to the best of my knowledge and belief, the foregoing statements (including without
limitation the answers to this Questionnaire) are correct.
IN WITNESS WHEREOF the undersigned, by authority duly given, has caused this Questionnaire to
be executed and delivered either in person or by its duly authorized agent.
Dated: _______________
|
Beneficial Owner:_________________________ |
| By: | ||||
| Name: | ||||
| Title: | ||||
B-4
PLEASE FAX A COPY OF THE COMPLETED AND EXECUTED NOTICE AND QUESTIONNAIRE, AND RETURN THE ORIGINAL
BY OVERNIGHT MAIL, TO:
Xxx Xxxxx
Xxxx Capital Partners, LLC
00 Xxxxxxxxx Xxxxx
Xxxxxxx Xxxxx, XX 00000
Tel: (000) 000-0000
Fax: (000) 000-0000
Email: xxxxxx@xxxxxx.xxx
Xxxx Capital Partners, LLC
00 Xxxxxxxxx Xxxxx
Xxxxxxx Xxxxx, XX 00000
Tel: (000) 000-0000
Fax: (000) 000-0000
Email: xxxxxx@xxxxxx.xxx
B-5
