AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
AMENDED
AND RESTATED
This
Amended and Restated Registration Rights Agreement (this "Agreement") is made and
entered into as of February __, 2009, by and among Organic To Go Food
Corporation, a Delaware corporation (the "Company"), and X.Xxxxxx L.P.
(the "Investor").
Preamble
WHEREAS:
The Company and the Investor are parties to that certain Registration Rights
Agreement, dated as of June 17, 2008 (the “Prior Agreement”), under which
the Company agreed to register Common Stock issuable upon conversion of the
Prior Notes (as defined below) issued under the Note and Warrant Purchase
Agreement dated as of June 1, 2008 (the “Prior NPA”); and
WHEREAS: In
connection with the Prior NPA, the Company issued to the Investor a Convertible
Promissory Note in the amount of $5,000,000, dated June 17, 2008, a Convertible
Promissory Note in the amount of $2,000,000, dated September 5, 2008, and a
Convertible Promissory Note in the amount of $3,000,000, dated October 3, 2008
(collectively, the “Prior
Notes”); and
WHEREAS:
On or about the date hereof, the Company and the Investor are entering into a
certain Note Purchase Agreement (the “New NPA”), under which, inter alia, the Investor
shall lend $5,000,000 to the Company in exchange for a promissory note (the
“New Note”), convertible
at the election of the Investor into Common Stock of the Company (the “New Note Shares”), and the
Investor shall convert the Prior Notes into an aggregate of 132,653,061 shares
of Common Stock of the Company (the “Prior Note Shares”);
and
WHEREAS:
The parties desire to amend and restate the Prior Agreement, in its entirety, by
the terms of this Agreement, under which the Company shall undertake to register
the New Note Shares and the Prior Note Shares.
The
Company and the Investor hereby agree as follows:
1. Definitions. Capitalized
terms used and not otherwise defined herein that are defined in the Purchase
Agreement will have the meanings given such terms in the Purchase
Agreement. As used in this Agreement, the following terms have the
respective meanings set forth in this Section 1:
"Advice" has the meaning set
forth in Section 7(d).
“Commission” means the United
States Securities and Exchange Commission.
"Commission Comments" means written comments pertaining solely to Rule
415 which are received by the Company from
the Commission, and a copy of which shall have been provided by the Company to
the Holder, to a filed Registration Statement which requires the Company to
limit the amount of shares which may be included therein to a number of shares
which is less than such amount sought to be included thereon as filed with the
Commission.
"Effective Date" means, as to
a Registration Statement, the date on which such Registration Statement is first
declared effective by the Commission.
"Effectiveness Period" means,
as to any Registration Statement required to be filed pursuant to this
Agreement, the period commencing on the Effective Date of such Registration
Statement and ending on the earliest to occur of (a) the fifth anniversary of
such Effective Date, or (b) such time as all of the Registrable Securities
covered by such Registration Statement have been publicly sold by the Holder of
the Registrable Securities included therein.
"Exchange Act" means the
Securities Exchange Act of 1934, as amended.
"Filing Date" means (a) with
respect to the initial Registration Statement required to be filed under Section
2(a), the 90th day
following the date hereof; (b) with respect to any Registration Statements required to be filed under Section
2(b), each such Registration Statement shall be
filed by the
earlier of (i) for the initial Registration Statement required to be
filed under Section 2(b), the six-month anniversary of the Effective Date
of the Registration Statement required to be filed under Section 2(a) and for all subsequent Registration Statements, the
six-month anniversary of the Effective Date of the immediately preceding
Registration Statement required to be filed under Section 2(b), as applicable,
and (ii) for the initial Registration Statement required to be filed under
Section 2(b), the 90th day
following such time as 75% of all
Registrable Securities which are included in the Registration Statement required
to be filed under Section 2(a) have been sold and
for all subsequent Registration Statements, the 90th day following such time as 75% of all Registrable
Securities which are included in the immediately preceding Registration
Statement required to be filed under Section 2(b) have been sold, as
applicable; and (c) with respect to a Registration Statement required to
be filed under Section 2(c), the 30th day
following the date on which the Company becomes eligible to utilize Form S-3 to
register the resale of Common Stock.
"Holder" means the holder of
Registrable Securities.
“Indemnified Party” has the
meaning set forth in Section 5(c).
“Indemnifying Party” has the
meaning set forth in Section 5(c).
“Losses” has the meaning set
forth in Section 5(a).
“New Note” has the meaning set
forth in the Preamble.
“New Note Shares” has the
meaning set forth in the Preamble.
“New NPA” has the meaning set
forth in the Preamble.
“Note Shares” means the Prior
Note Shares and the New Note Shares.
“Notes” means the Prior Notes
and the New Note.
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“Prior Agreement” has the
meaning set forth in the Preamble.
“Prior Notes” has the meaning
set forth in the Preamble.
“Prior Note Shares” has the
meaning set forth in the Preamble.
“Prior NPA” has the meaning
set forth in the Preamble.
"Proceeding" means an action,
claim, suit, investigation or proceeding (including, without limitation, an
investigation or partial proceeding, such as a deposition), whether commenced or
threatened.
“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 under 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: (i) the Note Shares, and (ii) any securities issued or issuable upon any
stock split, dividend or other distribution, recapitalization or similar event,
or any other adjustment with respect to any of the Note Shares.
"Registration Statement" means
the initial registration statement required to be filed in accordance with
Section 2(a) and any additional registration statement(s) required to be filed
under Section 2(b), including (in each case) the Prospectus, amendments and
supplements to such registration statements or Prospectus, including pre- and
post-effective amendments, all exhibits thereto, and all material incorporated
by reference or deemed to be incorporated by reference therein.
"Rule 144" means Rule 144
promulgated by the Commission pursuant to the Securities Act, as such Rule may
be amended from time to time, or any similar rule or regulation hereafter
adopted by the Commission having substantially the same effect as such
Rule.
"Rule 415" means Rule 415
promulgated by the Commission pursuant to the Securities Act, as such Rule may
be amended from time to time, or any similar rule or regulation hereafter
adopted by the Commission having substantially the same effect as such
Rule.
"Rule 424" means Rule 424
promulgated by the Commission pursuant to the Securities Act, as such Rule may
be amended from time to time, or any similar rule or regulation hereafter
adopted by the Commission having substantially the same effect as such
Rule.
"Securities Act" means the
Securities Act of 1933, as amended.
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2. Registration.
(a) On or
prior to the applicable Filing Date, the Company shall prepare and file with the
Commission a Registration Statement covering the resale of all Registrable
Securities not already covered by an existing and effective Registration
Statement for an offering to be made on a continuous basis pursuant to Rule 415,
on Form S-1 (or on such other form appropriate for such
purpose). Such Registration Statement shall contain (except if
otherwise required pursuant to written comments received from the Commission
upon a review of such Registration Statement, other than as to the
characterization of any Holder as an underwriter, which shall not occur without
such Holder’s consent) the "Plan of Distribution" attached hereto as Annex
A. The Company shall use its best efforts to cause such Registration
Statement to be declared effective under the Securities Act as soon as possible,
and shall use its best efforts to keep the Registration Statement continuously
effective during the entire Effectiveness Period. The initial
Registration Statement shall cover all of the Note Shares. By 5:00
p.m. (New York City time) on the Business Day immediately following the
Effective Date of such Registration Statement, the Company shall file with the
Commission in accordance with Rule 424 under the Securities Act the final
prospectus to be used in connection with sales pursuant to such Registration
Statement (whether or not such filing is technically required under such
Rule).
(b) If all of
the Registrable Securities to be included in the Registration Statement filed
pursuant to Section 2(a) cannot be so included due to Commission Comments, then
the Company shall prepare and file by the applicable Filing Date for such Registration
Statement(s), such number of additional Registration Statements as may be necessary in order to ensure
that all Registrable Securities are
covered by an existing and effective Registration Statement. Accordingly, if for example, an initial Registration
Statement is filed under this Section 2(b) to register Registrable Securities
removed from a Registration Statement filed under Section 2(a) due to Commission
Comments and Commission Comments again require shares to be removed from such
newly filed Registration Statement under this Section 2(b), then the Company
will prepare and file additional Registration Statement(s) until such time as
all such required shares are covered by effective Registration
Statements. Any Registration Statements to be filed under this
Section shall be for an offering to be made on a continuous basis
pursuant to Rule 415, on Form S-1 (or on such other form appropriate for such
purpose). Such Registration Statement shall contain (except if
otherwise required pursuant to written comments received from the Commission
upon a review of such Registration Statement, other than as to the
characterization of any Holder as an underwriter, which shall not occur without
such Holder’s consent) the "Plan of Distribution" attached hereto as Annex
A. The Company shall use its best efforts to cause such
Registration Statement to be declared effective under the Securities Act as soon
as possible, and shall use its best efforts to keep such Registration Statement
continuously effective under the Securities Act during the entire Effectiveness
Period. By 5:00 p.m. (New York City time) on the Business Day
immediately following the Effective Date of such Registration Statement, the
Company shall file with the Commission in accordance with Rule 424 under the
Securities Act the final prospectus to be used in connection with sales pursuant
to such Registration Statement (whether or not such filing is technically
required under such Rule).
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(c) Promptly
following any date on which the Company becomes eligible to use a registration
statement on Form S-3 to register the Registrable Securities for resale, the
Company shall file a registration statement on Form S-3 covering the Registrable
Securities (or a post-effective amendment on Form S-3 to the then effective
Registration Statement) and shall cause such Registration Statement to be
filed by the Filing Date for such Registration Statement and declared effective
as soon as possible thereafter. Such Registration Statement shall contain
(except if otherwise required pursuant to written comments received from the
Commission upon a review of such Registration Statement) the "Plan of
Distribution" attached hereto as Annex
A. The Company shall use its best efforts to keep such
Registration Statement continuously effective under the Securities Act during
the entire Effectiveness Period. By 5:00 p.m. (New York City time) on
the Business Day immediately following the Effective Date of such Registration
Statement, the Company shall file with the Commission in accordance with Rule
424 under the Securities Act the final prospectus to be used in connection with
sales pursuant to such Registration Statement (whether or not such filing is
technically required under such Rule).
(d) If: (i) a
Registration Statement is not filed on or prior to its Filing Date covering the
Registrable Securities required under this Agreement to be included therein (if
the Company files a Registration Statement without affording the Holder the
opportunity to review and comment on the same as required by Section 3(a)
hereof, the Company shall not be deemed to have satisfied this clause (i)), or
(ii) if by the Business Day immediately following the Effective Date the Company
shall not have filed a “final” prospectus for the Registration Statement with
the Commission under Rule 424(b) in accordance with Section 2(a), 2(b), or 2(c)
herein, as the case may be (whether or not such a prospectus is technically
required by such Rule), or (iii) after its Effective Date, without regard for
the reason thereunder or efforts therefor, such Registration Statement ceases
for any reason to be effective and available to the Holder as to all Registrable
Securities to which it is required to cover at any time prior to the expiration
of its Effectiveness Period for more than an aggregate of 30 Trading Days (which
need not be consecutive) (any such failure or breach being referred to as an
“Event,” and for
purposes of clauses (i) or (ii) the date on which such Event occurs, or for
purposes of clause (iii) the date which such 30 Trading Day-period is exceeded,
being referred to as “Event
Date”), then in addition to any other rights the Holder may have
hereunder or under applicable law: on such Event Date and on each monthly
anniversary of each such Event Date (if the applicable Event shall not have been
cured by such date) until the applicable Event is cured the Company shall pay to
the Holder an amount in cash, as partial liquidated damages and not as a
penalty, equal to 1.0% of the aggregate Investment Amount paid by the Holder
pursuant to the Purchase Agreement; provided, however, that, for purposes of
clauses (i) or (ii) above, and in addition to the above liquidated damages, upon
such Event, the Company shall immediately pay to the Holder a cash payment of
$500,000 as partial liquidated damages and not as a penalty (the “Initial
Payment”). In no event will the Company be liable for
liquidated damages under this section in excess of 1.0% of the aggregate
Investment Amount of the Holder in any 30-day period (other than the initial
30-day period beginning on the Event Date) and the maximum aggregate liquidated
damages payable to the Holder under this section shall be fifteen percent (15%)
of the aggregate Investment Amount paid by the Holder pursuant to the Purchase
Agreement, inclusive of the Initial Payment (the “Cap”). The partial
liquidated damages pursuant to the terms hereof shall apply on a daily pro-rata
basis for any portion of a month prior to the cure of an Event, except in the
case of the first Event Date. The Company shall not be liable for
liquidated damages under this Agreement as to any Registrable Securities which
are not permitted by the Commission to be included in a Registration Statement
due solely to Commission Comments from the time that it is determined that such
Registrable Securities are not permitted to be registered solely due to
Commission Comments until such time as the provisions of this Agreement as to
the next applicable Registration Statement required to be filed hereunder are
triggered, in which case the provisions of this Section 2(d) shall once again
apply, if applicable. In such case, the liquidated damages shall be
calculated to only apply to the percentage of Registrable Securities which are
permitted in accordance with Commission Comments to be included in such
Registration Statement.
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(e) The
Holder agrees to furnish to the Company a completed Questionnaire in the form
attached to this Agreement as Annex B (a “Selling Holder
Questionnaire”). The Company shall not be required to include
the Registrable Securities of a Holder in a Registration Statement and shall not
be required to pay any liquidated or other damages under Section 2(d) to a
Holder who fails to furnish to the Company a fully completed Selling Holder
Questionnaire at least two Trading Days prior to the Filing Date (subject to the
requirements set forth in Section 3(a)).
(f) Notwithstanding
anything to the contrary contained herein, the obligations of the Company under
this Agreement, including, without limitation, its obligation to file or cause
to be effective any Registration Statement or Prospectus or amendments or
supplements thereto, shall immediately terminate if, within the 90-day period
following the date hereof, the Company de-registers its Common Stock under the
Exchange Act and terminates the quotation of its Common Stock on the OTC
Bulletin Board.
3. Registration
Procedures.
In
connection with the Company's registration obligations hereunder, the Company
shall:
(a) Not less
than four Trading Days prior to the filing of a Registration Statement or any
related Prospectus or any amendment or supplement thereto, the Company shall
furnish to the Holder copies of the “Selling Stockholders” section of such
document, the “Plan of Distribution” and any risk factor contained in such
document that addresses specifically this transaction or the Selling
Stockholders, as proposed to be filed which documents will be subject to the
review of such Holder. The Company shall not file a Registration
Statement, any Prospectus or any amendments or supplements thereto in which the
“Selling Stockholder” section thereof differs from the disclosure received from
a Holder in its Selling Holder Questionnaire (as amended or supplemented),
without such Holder’s express written authorization. The Company
shall not file a Registration Statement, any Prospectus or any amendments or
supplements thereto in which it (i) characterizes the Holder as an
underwriter, (ii) excludes the Holder due to such Holder refusing to be
named as an underwriter, or (iii) reduces the number of Registrable
Securities being registered on behalf of the Holder except in accordance with
Section 2 of this Agreement, without such Holder’s express written
authorization.
(b) (i) Prepare
and file with the Commission such amendments, including post-effective
amendments, to each Registration Statement and the Prospectus used in connection
therewith as may be necessary to keep such Registration Statement continuously
effective as to the applicable Registrable Securities for its 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, 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
each Registration Statement or any amendment thereto and, as promptly as
reasonably possible provide the Holder true and complete copies of all
correspondence from and to the Commission relating to such Registration
Statement that would not result in the disclosure to the Holder of material and
non-public information concerning the Company; and (iv) comply in all material
respects with the provisions of the Securities Act and the Exchange Act with
respect to the Registration Statements and the disposition of all Registrable
Securities covered by each Registration Statement.
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(c) Notify
the Holder as promptly as reasonably possible (and, in the case of (i)(A) below,
not less than one Trading Day prior to such filing and, in the case of (v)
below, not less than three Trading Days prior to the financial statements in any
Registration Statement becoming ineligible for inclusion therein) (i)(A) when a
Prospectus or any Prospectus supplement or post-effective amendment to a
Registration Statement is proposed to be filed; (B) when the Commission notifies
the Company whether there will be a "review" of such Registration Statement and
whenever the Commission comments in writing on such Registration Statement (the
Company shall provide true and complete copies thereof and all written responses
thereto to the Holder that pertains to the Holder as a Selling Stockholder or to
the Plan of Distribution, but not information which the Company believes would
constitute material and non-public information); and (C) with respect to each
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 of any stop order suspending the effectiveness of a Registration
Statement covering any or all of the Registrable Securities or the initiation of
any Proceedings for that purpose; (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; and (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 such 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 such
Registration Statement, Prospectus or other documents so that, in the case of
such 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.
(d) Use its
reasonable best efforts to avoid the issuance of, or, if issued, obtain the
withdrawal of (i) any order 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.
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(e) Furnish
to the Holder, without charge, at least one conformed copy of each Registration
Statement and each amendment thereto and all exhibits to the extent requested by
such Person (including those previously furnished) promptly after the filing of
such documents with the Commission; provided,
however, that the filing of such documents with the Commission on XXXXX shall
constitute delivery under this Section 3(e).
(f) Promptly
deliver to the Holder, without charge, as many copies of each Prospectus or
Prospectuses (including each form of prospectus) and each amendment or
supplement thereto as such Persons may reasonably request; provided, however, that the filing of each such
Prospectus and each amendment or supplement thereto with the Commission on XXXXX
shall constitute delivery under this Section 3(f). The Company
hereby consents to the use of such Prospectus and each amendment or supplement
thereto by the selling Holder in connection with the offering and sale of the
Registrable Securities covered by such Prospectus and any amendment or
supplement thereto.
(g) Prior to
any public offering of Registrable Securities, register or qualify such
Registrable Securities for offer and sale under the securities or Blue Sky laws
of all jurisdictions within the United States as the Holder may request, to keep
each such registration or qualification (or exemption therefrom) effective
during the Effectiveness Period and to do any and all other acts or things
necessary or advisable to enable the disposition in such jurisdictions of the
Registrable Securities covered by the Registration Statements.
(h) Cooperate
with the Holder to facilitate the timely preparation and delivery of
certificates representing Registrable Securities to be delivered to a transferee
pursuant to the Registration Statements, which certificates shall be free, to
the extent permitted by the Purchase Agreement, of all restrictive legends, and
to enable such Registrable Securities to be in such denominations and registered
in such names as the Holder may request.
(i) Upon the
occurrence of any event contemplated by Section 3(c)(v), as promptly as
reasonably possible, prepare a supplement or amendment, including a
post-effective amendment, to the affected Registration Statements 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, no Registration Statement nor any 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.
4. Registration
Expenses. All fees and expenses incident to the performance of
or compliance with this Agreement by the Company shall be borne by the Company
whether or not any Registrable Securities are sold pursuant to a Registration
Statement. The fees and expenses referred to in the foregoing
sentence shall include, without limitation, (i) all registration and filing fees
(including, without limitation, fees and expenses (A) with respect to filings
required to be made with any Trading Market on which the Common Stock is then
listed or quoted for trading, and (B) in compliance with applicable state
securities or Blue Sky laws), (ii) printing expenses (including, without
limitation, expenses of printing certificates for Registrable Securities and of
printing prospectuses if the printing of prospectuses is reasonably requested by
the Holder), (iii) messenger, telephone and delivery expenses, (iv) fees and
disbursements of counsel for the Company, (v) Securities Act liability
insurance, if the Company so desires such insurance, and (vi) fees and expenses
of all other Persons retained by the Company in connection with the consummation
of the transactions contemplated by this Agreement. In addition, the
Company shall be responsible for all of its internal expenses incurred in
connection with the consummation of the transactions contemplated by this
Agreement (including, without limitation, all salaries and expenses of its
officers and employees performing legal or accounting duties), the expense of
any annual audit and the fees and expenses incurred in connection with the
listing of the Registrable Securities on any securities exchange as required
hereunder.
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5. Indemnification.
(a) Indemnification by the
Company. The Company shall, notwithstanding any termination of
this Agreement, indemnify and hold harmless the Holder and its officers,
directors, agents, investment advisors, partners, members and employees, each
Person who controls the Holder (within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act) and the officers, directors,
agents and employees of each such controlling Person, to the fullest extent
permitted by applicable law, from and against any and all losses, claims,
damages, liabilities, costs (including, without limitation, reasonable costs of
preparation and reasonable attorneys' fees) and expenses (collectively, "Losses"), as incurred, arising
out of or relating to any untrue or alleged untrue statement of a material fact
contained in any Registration Statement, any Prospectus or any form of
prospectus or in any amendment or supplement thereto or in any preliminary
prospectus, or arising out of or relating to any omission or alleged omission of
a material fact required to be stated therein or necessary to make the
statements therein (in the case of any Prospectus or form of prospectus or
supplement thereto, in light of the circumstances under which they were made)
not misleading, except to the extent, but only to the extent, that (1) such
untrue statements or omissions are based solely upon information regarding the
Holder furnished in writing to the Company by such Holder expressly for use
therein, or to the extent that such information relates to such Holder or such
Holder's proposed method of distribution of Registrable Securities and was
reviewed and expressly approved in writing by such Holder expressly for use in
the Registration Statement, such Prospectus or such form of Prospectus or in any
amendment or supplement thereto (it being understood that the Holder has
approved Annex A hereto for this purpose) or (2) in the case of an occurrence of
an event of the type specified in Section 3(c)(ii)-(v), the use by such Holder
of an outdated or defective Prospectus after the Company has notified such
Holder in writing that the Prospectus is outdated or defective and prior to the
receipt by such Holder of an Advice or an amended or supplemented Prospectus,
but only if and to the extent that following the receipt of the Advice or the
amended or supplemented Prospectus the misstatement or omission giving rise to
such Loss would have been corrected. The Company shall notify the
Holder promptly of the institution, threat or assertion of any Proceeding of
which the Company is aware in connection with the transactions contemplated by
this Agreement.
(b) Indemnification by
Holder. The Holder shall indemnify and hold harmless the Company, its
directors, officers, agents and employees, each Person who controls the Company
(within the meaning of Section 15 of the Securities Act and Section 20 of the
Exchange Act), and the directors, officers, agents or employees of such
controlling Persons, to the fullest extent permitted by applicable law, from and
against all Losses, as incurred, arising solely out of or based solely upon: (x)
such Holder's failure to comply with the prospectus delivery requirements of the
Securities Act or (y) any untrue statement of a material fact contained in any
Registration Statement, any Prospectus, or any form of prospectus, or in any
amendment or supplement thereto, or arising solely out of or based solely upon
any omission of a material fact required to be stated therein or necessary to
make the statements therein not misleading to the extent, but only to the extent
that, (1) such untrue statements or omissions are based solely upon information
regarding the Holder furnished in writing to the Company by such Holder
expressly for use therein, or to the extent that such information relates to
such Holder or such Holder's proposed method of distribution of Registrable
Securities and was reviewed and expressly approved in writing by such Holder
expressly for use in the Registration Statement (it being understood that the
Holder has approved Annex A hereto for this purpose), such Prospectus or such
form of Prospectus or in any amendment or supplement thereto or (2) in the case
of an occurrence of an event of the type specified in Section 3(c)(ii)-(v), the
use by such Holder of an outdated or defective Prospectus after the Company has
notified such Holder in writing that the Prospectus is outdated or defective and
prior to the receipt by such Holder of an Advice or an amended or supplemented
Prospectus, but only if and to the extent that following the receipt of the
Advice or the amended or supplemented Prospectus the misstatement or omission
giving rise to such Loss would have been corrected. In no event shall
the liability of the Holder be greater in amount than the dollar amount of the
net proceeds received by such Holder upon the sale of the Registrable Securities
giving rise to such indemnification obligation.
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(c) Conduct of Indemnification
Proceedings. If any Proceeding shall be brought or asserted against any
Person entitled to indemnity hereunder (an "Indemnified Party"), such
Indemnified Party shall promptly notify the Person from whom indemnity is sought
(the "Indemnifying
Party") in writing, and the Indemnifying Party shall assume the defense
thereof, including the employment of counsel reasonably satisfactory to the
Indemnified Party and the payment of all fees and expenses incurred in
connection with defense thereof; provided, that the failure of any Indemnified
Party to give such notice shall not relieve the Indemnifying Party of its
obligations or liabilities pursuant to this Agreement, except (and only) to the
extent that it shall be finally determined by a court of competent jurisdiction
(which determination is not subject to appeal or further review) that such
failure shall have proximately and materially adversely prejudiced the
Indemnifying Party.
An
Indemnified Party shall have the right to employ separate counsel in any such
Proceeding and to participate in the defense thereof, but the fees and expenses
of such counsel shall be at the expense of such Indemnified Party or Parties
unless: (1) the Indemnifying Party has agreed in writing to pay such
fees and expenses; (2) the Indemnifying Party shall have failed promptly to
assume the defense of such Proceeding and to employ counsel reasonably
satisfactory to such Indemnified Party in any such Proceeding; or (3) the named
parties to any such Proceeding (including any impleaded parties) include both
such Indemnified Party and the Indemnifying Party, and such Indemnified Party
shall have been advised by counsel that a conflict of interest is likely to
exist if the same counsel were to represent such Indemnified Party and the
Indemnifying Party (in which case, if such Indemnified Party notifies the
Indemnifying Party in writing that it elects to employ separate counsel at the
expense of the Indemnifying Party, the Indemnifying Party shall not have the
right to assume the defense thereof and such counsel shall be at the expense of
the Indemnifying Party). The Indemnifying Party shall not be liable
for any settlement of any such Proceeding effected without its written consent,
which consent shall not be unreasonably withheld. No Indemnifying
Party shall, without the prior written consent of the Indemnified Party, effect
any settlement of any pending Proceeding in respect of which any Indemnified
Party is a party, unless such settlement includes an unconditional release of
such Indemnified Party from all liability on claims that are the subject matter
of such Proceeding.
10
All fees
and expenses of the Indemnified Party (including reasonable fees and expenses to
the extent incurred in connection with investigating or preparing to defend such
Proceeding in a manner not inconsistent with this Section) shall be paid to the
Indemnified Party, as incurred, within 10 Trading Days of written notice thereof
to the Indemnifying Party (regardless of whether it is ultimately determined
that an Indemnified Party is not entitled to indemnification hereunder;
provided, that the Indemnifying Party may require such Indemnified Party to
undertake to reimburse all such fees and expenses to the extent it is finally
judicially determined that such Indemnified Party is not entitled to
indemnification hereunder).
(d) Contribution. If
a claim for indemnification under Section 5(a) or 5(b) is unavailable to an
Indemnified Party (by reason of public policy or otherwise), then each
Indemnifying Party, in lieu of indemnifying such Indemnified Party, shall
contribute to the amount paid or payable by such Indemnified Party as a result
of such Losses, in such proportion as is appropriate to reflect the relative
fault of the Indemnifying Party and Indemnified Party in connection with the
actions, statements or omissions that resulted in such Losses as well as any
other relevant equitable considerations. The relative fault of such
Indemnifying Party and Indemnified Party shall be determined by reference to,
among other things, whether any action in question, including any untrue or
alleged untrue statement of a material fact or omission or alleged omission of a
material fact, has been taken or made by, or relates to information supplied by,
such Indemnifying Party or Indemnified Party, and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
action, statement or omission. The amount paid or payable by a party
as a result of any Losses shall be deemed to include, subject to the limitations
set forth in Section 5(c), any reasonable attorneys' or other reasonable fees or
expenses incurred by such party in connection with any Proceeding to the extent
such party would have been indemnified for such fees or expenses if the
indemnification provided for in this Section was available to such party in
accordance with its terms.
The
parties hereto agree that it would not be just and equitable if contribution
pursuant to this Section 5(d) were determined by pro rata allocation or by any
other method of allocation that does not take into account the equitable
considerations referred to in the immediately preceding
paragraph. Notwithstanding the provisions of this Section 5(d), no
Holder shall be required to contribute, in the aggregate, any amount in excess
of the amount by which the proceeds actually received by such Holder from the
sale of the Registrable Securities subject to the Proceeding exceeds the amount
of any damages that such Holder has otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged
omission.
The
indemnity and contribution agreements contained in this Section are in addition
to any liability that the Indemnifying Parties may have to the Indemnified
Parties.
11
6. Notices.
(a) All
notices and other communications made pursuant to this Agreement shall be in
writing and shall be conclusively deemed to have been duly given:
(i) in the
case of hand delivery to the address set forth below, on the next Business Day
after delivery;
(ii) in the
case of delivery by an internationally recognized overnight courier to the
address set forth below, freight prepaid, on the next Business Day after
delivery and signed receipt by the recipient; and
(iii) in the
case of a notice sent by facsimile transmission to the number and addressed as
set forth below, on the next Business Day after delivery, if receipt of such
facsimile transmission is confirmed.
(b) For all
notices given pursuant to one of the methods listed in sub-clause (a) above, a
copy of the notice should also be sent by email to the email address set forth
below.
(c) Contact
details:
If to
Investor:
Address for notices being delivered
by hand/courier:
c/o
Inventages Whealth Management Inc.
Winterbotham
Place, Marlborough & Queen Streets
P. O. Box
N-3026
Nassau,
The Bahamas, Attn: Xx. Xxxxxx Xxxxxxx
Always
with a copy to: IVC SA, Xxxxx xx Xxxxxx 00X, 0000 - Xxxxxxxx,
Xxxxxxxxxxx, Attn: Xx. Xxxxxx xxx Xxxxxxxxx
Always
with a copy to: xxxxxxx@xxxxxxxxxx.xxx
and xxxxxxxxx@xxxxxxxxxx.xxx
Number
for notices being delivered by facsimile transmission:
To: IVC
SA, Attn: Xx. Xxxxxx xxx Xxxxxxxxx, at: x00 00 000
0000
Always
with a copy to: xxxxxxx@xxxxxxxxxx.xxx
and xxxxxxxxx@xxxxxxxxxx.xxx
If to the
Company:
Address for notices being delivered
by hand/courier:
Organic
To Go Food Corporation
0000
Xxxxx Xxxxxx Xxxxx
Xxxxxxx,
Xxxxxxxxxx 00000
Attn:
Chief Financial Officer
12
Always
with a copy to:
Loeb & Loeb LLP
00000 Xxxxx Xxxxxx Xxxxxxxxx
Xxxxx
0000
Xxx Xxxxxxx,
Xxxxxxxxxx 00000
Attention:
Xxxxxxxx
Xxxxxx, Esq.
Number
for notices being delivered by facsimile transmission:
To:
Organic To Go Food Corporation, Attn: Chief Financial Officer, at: x0 000 000
0000
Always
with a copy to: Loeb & Loeb LLP, Attn:
Xxxxxxxx Xxxxxx, Esq, at: x0 000 000 0000
If to any
other Person who is then the registered Holder:
To the
address of such Holder as it appears in the stock transfer books of the
Company.
(d) A
party may change or supplement the contact details for service of any notice
pursuant to this Agreement, or designate additional addresses, facsimile numbers
and email addresses for the purposes of this Section 6, by giving the other
parties written notice of the new contact details in the manner set forth
above.
7. Miscellaneous.
(a) Remedies. In
the event of a breach by the Company or by the Holder, of any of their
obligations under this Agreement, the Holder or the Company, as the case may be,
in addition to being entitled to exercise all rights granted by law and under
this Agreement, including recovery of damages, will be entitled to specific
performance of its rights under this Agreement. The Company and the
Holder agree that monetary damages would not provide adequate compensation for
any losses incurred by reason of a breach by it of any of the provisions of this
Agreement and hereby further agrees that, in the event of any action for
specific performance in respect of such breach, it shall waive the defense that
a remedy at law would be adequate.
(b) No Piggyback on
Registrations. With respect to the initial Registration
Statement required to be filed under Section 2(a) hereof, neither the Company
nor any of its security holders (other than the Holder in such capacity pursuant
hereto) may include securities of the Company in a Registration Statement other
than the Registrable Securities. With respect to any Registration
Statements required to be filed under Section 2(b) or Section 2(c), except as
and to the extent specified in Schedule 2(v) to the
Purchase Agreement, neither the Company nor any of its security holders (other
than the Holder in such capacity pursuant hereto) may include securities of the
Company in a Registration Statement other than the Registrable
Securities. The Company shall not during the Effectiveness Period
enter into any agreement providing any such registration rights to any of its
security holders without the prior written consent of the Holder (which consent
shall not be unreasonably withheld); provided, however, that such prior written
consent of the Holder shall not be required after Registration Statements
covering all of the Registrable Securities have been declared effective by the
SEC.
13
(c) Compliance. The
Holder covenants and agrees that it will comply with the prospectus delivery
requirements of the Securities Act as applicable to it in connection with sales
of Registrable Securities pursuant to the Registration Statement.
(d) Discontinued
Disposition. The Holder agrees by its acquisition of such
Registrable Securities that, upon receipt of a notice from the Company of the
occurrence of any event of the kind described in Section 3(c), the Holder will
forthwith discontinue disposition of such Registrable Securities under the
Registration Statement until the Holder's receipt of the copies of the
supplemented Prospectus and/or amended Registration Statement or until it is
advised in writing (the "Advice") by the Company that
the use of the applicable Prospectus may be resumed, and, in either case, has
received copies of any additional or supplemental filings that are incorporated
or deemed to be incorporated by reference in such Prospectus or Registration
Statement. The Company may provide appropriate stop orders to enforce
the provisions of this paragraph.
(e) Piggy-Back
Registrations. 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 stock option or other employee
benefit plans, then the Company shall send to the Holder written notice of such
determination and, if within 15 calendar days after receipt of such notice, the
Holder shall so request in writing, the Company shall include in such
registration statement all or any part of such Registrable Securities such
holder requests to be registered, subject to customary underwriter cutbacks
applicable to all holders of registration rights.
(f) Amendments and
Waivers. The provisions of this Agreement, including the
provisions of this Section 7(f), may not be amended, modified or supplemented,
and waivers or consents to departures from the provisions hereof may not be
given, unless the same shall be in writing and signed by the Company and the
Holder of the then outstanding Registrable Securities.
(g) Successors and
Assigns. This Agreement shall inure to the benefit of and be
binding upon the successors and permitted assigns of each of the parties and
shall inure to the benefit of the Holder. The Company may not assign
its rights or obligations hereunder without the prior written consent of the
Holder. The Holder may assign their respective rights hereunder in
the manner and to the Persons as permitted under the Purchase
Agreement.
(h) Execution and
Counterparts. This Agreement may be executed in any number of
counterparts, each of which when so executed shall be deemed to be an original
and, all of which taken together shall constitute one and the same
Agreement. In the event that any signature is delivered by facsimile
or electronic mail transmission, such signature shall create a valid binding
obligation of the party executing (or on whose behalf such signature is
executed) the same with the same force and effect as if such facsimile or
electronic mail signature were the original thereof.
14
(i) Governing
Law. All questions concerning the construction, validity,
enforcement and interpretation of this Agreement shall be governed by and
construed and enforced in accordance with the internal laws of the State of New
York, without regard to the principles of conflicts of law thereof.
(j) Arbitration. Each
party agrees that any dispute, controversy, or claim arising in relation to this
Agreement, including with regard to its validity, invalidity, breach,
enforcement or termination, shall be resolved by binding arbitration in London,
England, in accordance with the rules of arbitration which are in force in the
United Kingdom on the date when the notice of arbitration is
submitted. The arbitrability of such dispute, claim or controversy
shall also be determined in such arbitration. Such arbitration proceeding shall
be conducted in the English language before one (1) arbitrator agreed to by the
parties. Both the foregoing agreement of the parties to arbitrate any and all
such disputes, claims and controversies, and the results, determinations,
findings, judgments and/or awards rendered through any such arbitration shall be
final and binding on the parties hereto and may be specifically enforced by
legal proceedings.
(k) Cumulative
Remedies. The remedies provided herein are cumulative and not
exclusive of any remedies provided by law, and, in the case of the Holder, may
include, among other things, damages resulting from the reduction in value of
the Registrable Securities.
(l) Severability. If any
term, provision, covenant or restriction of this Agreement is held by a court of
competent jurisdiction to be invalid, illegal, void or unenforceable, the
remainder of the terms, provisions, covenants and restrictions set forth herein
shall remain in full force and effect and shall in no way be affected, impaired
or invalidated, and the parties hereto shall use their reasonable efforts to
find and employ an alternative means to achieve the same or substantially the
same result as that contemplated by such term, provision, covenant or
restriction. It is hereby stipulated and declared to be the intention
of the parties that they would have executed the remaining terms, provisions,
covenants and restrictions without including any of such that may be hereafter
declared invalid, illegal, void or unenforceable.
(m) Headings. The
headings in this Agreement are for convenience of reference only and shall not
limit or otherwise affect the meaning hereof.
(n) This
Agreement supersedes, in its entirety, the Prior Agreement.
[REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK
SIGNATURE
PAGES TO FOLLOW]
15
IN
WITNESS WHEREOF, the parties have executed this Amended and Restated
Registration Rights Agreement as of the date first written above.
| ORGANIC TO GO FOOD CORPORATION | |||
|
By:
|
|||
| Name: Xxxxx Xxxxx | |||
| Title: Chairman and Chief Executive Officer | |||
[REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK
SIGNATURE
PAGES OF INVESTOR TO FOLLOW]
IN WITNESS WHEREOF, the parties have
executed this Amended and Restated Registration Rights Agreement as of the date
first written above.
| X.XXXXXX L.P. | |||
|
By:
|
|||
| Xx. Xxxxxx Xxxxxxx | |||
|
Director,
Inventages Whealth Management, Inc.,
as
General Partner of X.Xxxxxx L.P.
|
|||
|
By:
|
|||
| Xx. Xxxxxxxx Xxxxxxxxxxxxx | |||
|
Director,
Inventages Whealth Management, Inc.,
as
General Partner of X.Xxxxxx L.P.
|
|||
|
|
|||
Annex
A
Plan of
Distribution
The
Selling Stockholders and any of their pledgees, donees, transferees, assignees
and successors-in-interest may, from time to time, sell any or all of their
shares of Common Stock on any stock exchange, market or trading facility on
which the shares are traded or quoted or in private
transactions. These sales may be at fixed or negotiated
prices. The Selling Stockholders may use any one or more of the
following methods when selling shares:
|
·
|
ordinary
brokerage transactions and transactions in which the broker-dealer
solicits investors;
|
|
·
|
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;
|
|
·
|
to
cover short sales made after the date that this Registration Statement is
declared effective by the
Commission;
|
|
·
|
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 pursuant to applicable
law.
|
The
Selling Stockholders may also sell shares under Rule 144 under the Securities
Act, if available, rather than under this prospectus.
Broker-dealers
engaged by the Selling Stockholders may arrange for other brokers-dealers to
participate in sales. Broker-dealers may receive commissions or
discounts from the Selling Stockholders (or, if any broker-dealer acts as agent
for the purchaser of shares, from the purchaser) in amounts to be
negotiated. The Selling Stockholders do not expect these commissions
and discounts to exceed what is customary in the types of transactions
involved.
The
Selling Stockholders may from time to time pledge or grant a security interest
in some or all of the Shares owned by them and, if they default in the
performance of their secured obligations, the pledgees or secured parties may
offer and sell shares of Common Stock from time to time under this prospectus,
or under an amendment to this prospectus under Rule 424(b)(3) or other
applicable provision of the Securities Act of 1933 amending the list of selling
stockholders to include the pledgee, transferee or other successors in interest
as selling stockholders under this prospectus.
Upon the
Company being notified in writing by a Selling Stockholder that any material
arrangement has been entered into with a broker-dealer for the sale of Common
Stock through a block trade, special offering, exchange distribution or
secondary distribution or a purchase by a broker or dealer, a supplement to this
prospectus will be filed, if required, pursuant to Rule 424(b) under the
Securities Act, disclosing (i) the name of each such Selling Stockholder and of
the participating broker-dealer(s), (ii) the number of shares involved, (iii)
the price at which such the shares of Common Stock were sold, (iv)the
commissions paid or discounts or concessions allowed to such broker-dealer(s),
where applicable, (v) that such broker-dealer(s) did not conduct any
investigation to verify the information set out or incorporated by reference in
this prospectus, and (vi) other facts material to the transaction. In
addition, upon the Company being notified in writing by a Selling Stockholder
that a donee or pledgee intends to sell more than 500 shares of Common Stock, a
supplement to this prospectus will be filed if then required in accordance with
applicable securities law.
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.
The
Selling Stockholders and any broker-dealers or agents that are involved in
selling the shares may be deemed to be "underwriters" within the meaning of the
Securities Act in connection with such sales. In such event, any
commissions received by such broker-dealers or agents and any profit on the
resale of the shares purchased by them may be deemed to be underwriting
commissions or discounts under the Securities Act. Discounts,
concessions, commissions and similar selling expenses, if any, that can be
attributed to the sale of Shares will be paid by the Selling Stockholder and/or
the purchasers. Each Selling Stockholder has represented and
warranted to the Company that it acquired the securities subject to this
registration statement in the ordinary course of such Selling Stockholder’s
business and, at the time of its purchase of such securities such Selling
Stockholder had no agreements or understandings, directly or indirectly, with
any person to distribute any such securities.
The
Company has advised each Selling Stockholder that it may not use shares
registered on this Registration Statement to cover short sales of Common Stock
made prior to the date on which this Registration Statement shall have been
declared effective by the Commission. If a Selling Stockholder uses
this prospectus for any sale of the Common Stock, it will be subject to the
prospectus delivery requirements of the Securities Act. The Selling
Stockholders will be responsible to comply with the applicable provisions of the
Securities Act and Exchange Act, and the rules and regulations thereunder
promulgated, including, without limitation, Regulation M, as applicable to such
Selling Stockholders in connection with resales of their respective shares under
this Registration Statement.
The
Company is required to pay all fees and expenses incident to the registration of
the shares, but the Company will not receive any proceeds from the sale of the
Common Stock. The Company has agreed to indemnify the Selling
Stockholders against certain losses, claims, damages and liabilities, including
liabilities under the Securities Act.
Annex
B
ORGANIC
TO GO FOOD CORPORATION
Selling
Securityholder Notice and Questionnaire
The
undersigned beneficial owner of common stock (the “Common Stock”), of Organic To
Go Food Corporation, a Delaware corporation (the “Company”) understands that
the Company has filed or intends to file with the Securities and Exchange
Commission (the “Commission”) a Registration
Statement for the registration and resale of the Registrable Securities, in
accordance with the terms of the Amended and Restated Registration Rights
Agreement, dated as of February [ ], 2009 (the “Registration Rights
Agreement”), among the Company and the Investor named
therein. A copy of the Registration Rights Agreement is available
from the Company upon request at the address set forth below. All
capitalized terms used and not otherwise defined herein shall have the meanings
ascribed thereto in the Registration Rights Agreement.
The
undersigned hereby provides the following information to the Company and
represents and warrants that such information is accurate:
QUESTIONNAIRE
|
1.
|
Name.
|
|
|
(a)
|
Full
Legal Name of Selling Securityholder
|
|
| (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 Securityholder:
|
Telephone:
|
|
|
Fax:
|
|
|
Contact
Person:
|
|
3. Beneficial
Ownership of Registrable Securities:
|
Type
and Principal Amount of Registrable Securities beneficially
owned:
|
||
4. Broker-Dealer
Status:
| (a) | Are you a broker-dealer? | |
|
|
|
Yes ¨ No ¨
|
|
|
||
|
Note:
|
If
yes, the Commission’s staff has indicated that you should be identified as
an underwriter in the Registration Statement.
|
|
| (b) | Are you an affiliate of a broker-dealer? | |
|
Yes ¨ No ¨
|
||
| (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 ¨ No ¨
|
||
| 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
Securityholder.
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.
|
Type
and Amount of Other Securities beneficially owned by the Selling
Securityholder:
|
||
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. The Company has
advised each Selling Stockholder that it may not use shares registered on the
Registration Statement to cover short sales of Common Stock made prior to the
date on which the Registration Statement is declared effective by the
Commission, in accordance with 1997 Securities and Exchange Commission Manual of
Publicly Available Telephone Interpretations Section A.65. If a
Selling Stockholder uses the prospectus for any sale of the Common Stock, it
will be subject to the prospectus delivery requirements of the Securities
Act. The Selling Stockholders will be responsible to comply with the
applicable provisions of the Securities Act and Exchange Act, and the rules and
regulations thereunder promulgated, including, without limitation, Regulation M,
as applicable to such Selling Stockholders in connection with resales of their
respective shares under the Registration Statement.
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 for the Registration Statement.
By
signing below, the undersigned consents to the disclosure of the information
contained herein in its answers to Items 1 through 6 and the inclusion of such
information in the Registration Statement and the related
prospectus. The undersigned understands that such information will be
relied upon by the Company in connection with the preparation or amendment of
the Registration Statement and the related prospectus.
IN
WITNESS WHEREOF the undersigned, by authority duly given, has caused this Notice
and Questionnaire to be executed and delivered either in person or by its duly
authorized agent.
| Dated: | Beneficial Owner: |
|
|
By: | |||
|
|
|
Name:
Title:
|
PLEASE
FAX A COPY OF THE COMPLETED AND EXECUTED NOTICE AND QUESTIONNAIRE, AND RETURN
THE ORIGINAL BY OVERNIGHT MAIL, TO:
Loeb
& Loeb LLP
00000
Xxxxx Xxxxxx Xxxxxxxxx, Xxxxx 0000
Xxx
Xxxxxxx, XX 00000
Attention:
Xxxxxx Xxxxx, Esq.
Facsimile: (000)
000-0000
