REGISTRATION RIGHTS AGREEMENT
EXECUTION
COPY
REGISTRATION
RIGHTS AGREEMENT
REGISTRATION
RIGHTS AGREEMENT
(this
“Agreement”),
made
as of the ____ day of _______, 2007 (the “Effective
Date”),
by
and between H2Diesel Holdings, Inc., a Florida corporation (the “Company”),
and
each of the persons and entities listed on Exhibit A
attached
hereto (the “Holders”).
W
I T N E S S E T H
WHEREAS,
the
Company has agreed to provide the registration rights set forth in this
Agreement.
NOW,
THEREFORE,
for
good and valuable consideration, the receipt and sufficiency of which are
hereby
acknowledged, the parties hereby agree as follows:
AGREEMENT
1. Definitions
.
As used
in this Agreement, the following capitalized terms have the following respective
meanings:
“Business
Day”
means
a
day other than a Saturday or Sunday or any day on which banking institutions
in
Miami, Florida and New York City, New York are authorized or obligated by
law or
executive order to close.
“Common
Stock”
means
the Common Stock of the Company, par value $.001 per share.
“Exchange
Act”
means
the Securities Exchange Act of 1934, as amended, or any similar federal statute
then in effect, and a reference to a particular section thereof is deemed
to
include a reference to the comparable section, if any, of any such similar
federal statute.
“Majority
of Holders”
means
Holders holding more than 50% in aggregate principal amount of the Registrable
Securities outstanding at the time of any determination in
question.
“Person”
means
any individual, corporation, partnership, limited partnership, limited liability
company, syndicate, trust, association or other entity.
“Preferred
Stock”
means
the Series A Cumulative Convertible Preferred Stock of the Company, par value
$.001 per share.
“Prospectus”
means
the prospectus included in any Shelf 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 Shelf
Registration Statement and all other amendments and supplements to the
Prospectus, including post-effective amendments, and all material incorporated
by reference in such Prospectus.
“Registrable
Securities”
means
any shares of Common Stock issued or issuable to a Holder (i) upon conversion
of
any shares of Preferred Stock, (ii) as dividends on any shares of Preferred
Stock, (iii) upon the exercise of any Warrants, (iv) any shares of Common
Stock
that may be issued or distributed in respect thereof by way of stock dividend
or
stock split or other distribution, recapitalization or reclassification and
any
shares of Common Stock described in Section
2(c)
of this
Agreement.
Any
particular Registrable Securities that are issued will cease to be Registrable
Securities when (i) a registration statement with respect to the sale by
the
Holder of such securities becomes effective under the Securities Act and
such
securities have been disposed of in accordance with such registration statement,
(ii) such securities have been distributed to the public pursuant to Rule
144
(or any successor provision) under the Securities Act, (iii) all of the
Registrable Securities then owned by such Holder could be sold pursuant to
Rule
144(k), or (iv) such securities have ceased to be outstanding. For the avoidance
of doubt, the Company is under no obligation to register the resale of any
Preferred Stock, Warrants or Options.
“Registration
Expenses”
means
any and all expenses incident to performance of or compliance with this
Agreement, including, without limitation, (i) all SEC and stock exchange
or
National Association of Securities Dealers, Inc. (the “NASD”)
registration and filing fees (including, if applicable, the fees and expenses
of
any “qualified independent underwriter,” as such term is defined in NASD conduct
rule 2720, and of its counsel), (ii) all fees and expenses of complying with
securities or blue sky laws (including fees and disbursements of counsel
for the
underwriters in connection with blue sky qualifications of the Registrable
Securities), (iii) all printing, messenger and delivery expenses, (iv) all
fees
and expenses incurred in connection with the listing of the Registrable
Securities on any securities exchange, (v) the fees and disbursements of
counsel
for the Company and of its independent public accountants, including the
expenses of any special audits and/or “cold comfort” letters required by or
incident to such performance and compliance, and (vi) the reasonable fees
and
disbursements of counsel selected pursuant to Section
5(b)
hereof.
“Securities
Act”
means
the Securities Act of 1933, as amended, or any similar federal statute then
in
effect, and a reference to a particular section thereof will be deemed to
include a reference to the comparable section, if any, of any such similar
federal statute.
“SEC”
means
the Securities and Exchange Commission or any other federal agency at the
time
administering the Securities Act or the Exchange Act.
“Selling
Expenses”
means
underwriting or brokerage discounts and commissions and transfer taxes, if
any,
applicable to the sale of Registrable Securities.
“Underwritten
Offering”
means
an offering pursuant to the Shelf Registration Statement in which Registrable
Securities are sold to an underwriter for reoffering to the public.
“Warrants”
shall
mean any warrants issued to a Holder by the Company in connection with the
Holder’s purchase of shares of Preferred Stock from the Company.
2. Shelf
Registration.
(a) The
Company shall:
(i) not
later
than 60 days after the Effective Date (the “Shelf
Filing Deadline”),
cause
to be filed a registration statement on an appropriate form pursuant to
Rule 415 (or any successor rule) under the Securities Act (together with
any amendments thereto, and including any documents incorporated by reference
therein if permitted by such form, the “Shelf
Registration Statement”),
which
Shelf Registration Statement shall provide for resales of all Registrable
Securities held by Holders that have provided the information required pursuant
to the terms of Section 2(b)
hereof;
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(ii) use
its
commercially reasonable efforts to cause the Shelf Registration Statement
to be
declared effective by the SEC as promptly as is practicable after the date
it is
first filed with the SEC, but in no event later than 210 days after the
Effective Date (the “Effectiveness
Target Date”);
and
(iii) use
its
commercially reasonable efforts to keep the Shelf Registration Statement
continuously effective, supplemented and amended as required by the provisions
of Section 4
hereof
to the extent necessary to ensure that: (A) it is available for resales by
the Holders of Registrable Securities entitled to the benefit of this Agreement
and (B) conforms with the requirements of this Agreement and the Securities
Act, in each case, for a period (the “Effectiveness
Period”)
that
will terminate upon the earlier of (x) the 395 days after of the Effective
Date and (y) when all Registrable Securities cease to be Registrable
Securities in accordance with this Agreement.
(b) To
have
its Registrable Securities included in the Shelf Registration Statement pursuant
to this Agreement, each Holder shall complete the Selling Shareholder Notice
and
Questionnaire, the form of which is contained in Exhibit B
to this
Agreement (the “Questionnaire”).
The
Company shall mail the Questionnaire to each Holder not less than 10 Business
Days (but not more than 60 Business Days) prior to the time the Company intends
in good faith to have the Shelf Registration Statement declared effective
by the
SEC. Holders are required to complete and deliver the Questionnaire to the
Company prior to or on the 20th Business Day after the date of a written
request
therefor by the Company (which request shall include a copy of the
Questionnaire) (such deadline, the “Questionnaire
Deadline”).
Holders that do not complete and deliver the Questionnaire will not be named
as
selling shareholders in the Prospectus. Prior to such time, each Holder may
complete the Questionnaire and deliver it to the Company prior to such request
and, as a result, shall be entitled to have its Registrable Securities included
in the initial Shelf Registration Statement filed with the SEC. In addition,
upon receipt of written request for additional information from the Company,
each Holder who intends to be named as a selling shareholder in the Shelf
Registration Statement shall furnish to the Company in writing, within 20
Business Days after such Holder’s receipt of such request, such additional
information regarding such Holder and the proposed distribution by such Holder
of its Registrable Securities, in connection with the Shelf Registration
Statement or Prospectus or preliminary Prospectus included therein and in
any
application to be filed with or under state securities law, as the Company
may
reasonably request. Each Holder as to which the Shelf Registration Statement
is
being effected agrees to furnish promptly to the Company all information
required to be disclosed in order to make information previously furnished
to
the Company by such Holder not materially misleading.
(c) The
Company shall be entitled to include in the Shelf Registration Statement
other
shares of Common Stock (i) to be sold for its own account or (ii) which the
Company is obligated to register for resale by others, and such shares shall
be
Registrable Securities for all purposes hereof.
(d) Notwithstanding
anything contained herein to the contrary, subject to Section
3,
the
Company shall be entitled to exclude from any Shelf Registration Statement
such
number of Registrable Securities as the Company determines is necessary to
obtain the availability of Rule 415 under the Securities Act in response
to
comments from the staff of the SEC which would, but for such exclusion; prohibit
the Company from filing the Shelf Registration Statement under such rule.
To the
extent any Registrable Securities are so excluded, the Company agrees to
register such shares in accordance with this Section
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as
promptly as practicable.
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3. Additional
Shares.
(a) The
Company and the Subscribers agree that the Subscribers will suffer damages
if
the Company fails to fulfill its obligations under Section 2
hereof
and that it would not be feasible to ascertain the extent of such damages
with
precision. Accordingly, if:
(i) except
as
provided in Section
4(b)(i)
hereof,
the Shelf Registration Statement is not filed with the SEC prior to or on
the
Shelf Filing Deadline;
(ii) except
as
provided in Section
4(b)(i)
hereof,
the Shelf Registration Statement has not been declared effective by the SEC
prior to or on the Effectiveness Target Date;
(iii) except
as
provided in Section
4(b)(i)
hereof,
the Shelf Registration Statement is filed and declared effective but, during
the
Effectiveness Period, shall thereafter cease to be effective or fail to be
usable for its intended purpose without such disability being cured within
ten
Business Days by an effective post-effective amendment to the Shelf Registration
Statement, a supplement to the Prospectus or a report filed with the SEC
pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act that
cures such failure; or
(iv) (A) prior
to or on the 45th
or
60th
day, as
may be permitted under Section
4(b),
of any
Suspension Period (as such term is defined herein), such suspension has not
been
terminated or (B) Suspension Periods exceed an aggregate of 120 days in any
360-day period, (each such event referred to in foregoing clauses (i)
through (iv), a “Registration
Default”),
the
Company hereby agrees to issue to each Subscriber additional shares of Common
Stock (“Penalty
Shares”)
in an
amount equal to 1.0% of the number of Registrable Securities held by such
Subscriber on the 30th
day
following the Effective Date (the “Subject
Shares”)
for
each full 30 day period (each, a “Penalty
Period”)
that
elapses during the period beginning on and including the day following the
Registration Default and ending on but excluding the day on which the
Registration Default has been cured; provided, however, that in no event
shall
the number of Penalty Shares exceed an aggregate of 6.0% of the number of
Subject Shares, and, provided further, a Subscriber will not be entitled
to
Penalty Shares unless it has provided all information requested by the
Questionnaire prior to the deadline specified therein.
(b) Any
Penalty Shares issuable in respect of Subject Shares pursuant to clause (a)
of this Section 3 will be issued not later than 20 days after the end of
the Penalty Period in respect of which such Penalty Shares are issuable to
each
Subscriber in whose name such Subject Shares are registered on the books
of the
Company or its transfer agent.
(c) Except
as
set forth in Section
9
hereto,
the Penalty Shares to be issued pursuant to this Section 3 shall be the
exclusive remedy available to Subscribers for such Registration
Default.
4. Registration
Procedures.
(a) In
connection with the Shelf Registration Statement, the Company shall comply
with
all the provisions of Section 4(b)
hereof
and shall use its reasonable best efforts to effect such registration to
permit
the sale of the Registrable Securities being sold in accordance with the
intended method or methods of distribution thereof, and pursuant thereto,
shall
expeditiously prepare and file with the SEC a Shelf Registration Statement
relating to the registration on any appropriate form under the Securities
Act.
(b) In
connection with the Shelf Registration Statement and any Prospectus required
by
this Agreement to permit the sale or resale of Registrable Securities, the
Company shall:
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(i) Subject
to any notice by the Company in accordance with this Section 4(b)
of the
existence of any fact or event of the kind described in Section
4(b)(iii)(D),
use its
best efforts to keep the Shelf Registration Statement continuously effective
during the Effectiveness Period; upon the occurrence of any event that would
cause the Shelf Registration Statement or the Prospectus contained therein
(A) to contain a material misstatement or omission or (B) not be
effective and usable for the resale of Registrable Securities during the
Effectiveness Period, the Company shall file promptly an appropriate amendment
to the Shelf Registration Statement, a supplement to the Prospectus or a
report
filed with the SEC pursuant to Section 13(a), 13(c), 14 or 15(d) of the
Exchange Act, in the case of clause (A), correcting any such misstatement
or omission, and, in the case of either clause (A) or (B), use its best
efforts to cause any such amendment to be declared effective and the Shelf
Registration Statement and the related Prospectus to become usable for their
intended purposes as soon as practicable thereafter. Notwithstanding anything
to
the contrary contained herein, the Company may delay the filing or declaration
of effectiveness, and/or suspend the effectiveness, of the Shelf Registration
Statement by written notice to the Holders for a period (each such period,
a
“Suspension
Period”)
not to
exceed an aggregate of 45 days in any 90-day period, and not to exceed an
aggregate of 120 days in any 360-day period, if:
(x) an
event
occurs and is continuing as a result of which the Shelf Registration Statement
would, in the Company’s reasonable judgment, 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 not misleading; and
(y) the
Company reasonably determines that the disclosure of such event at such time
would be seriously detrimental to the Company or its business;
provided,
that in
the event that the disclosure relates to a previously undisclosed proposed
or
pending material business transaction, the disclosure of which would impede
the
Company’s ability to consummate such transaction, the Company may extend a
Suspension Period from 45 days to 60 days during any 90-day period.
(ii) Notify
in
writing each selling Holder of the effectiveness of the Shelf Registration
Statement and prepare and file with the SEC such amendments and post-effective
amendments to the Shelf Registration Statement as may be necessary to keep
the
Shelf Registration Statement continuously effective during the Effectiveness
Period; cause the Prospectus to be supplemented by any required prospectus
supplement, and as so supplemented to be filed pursuant to Rule 424 under
the Securities Act, and to comply fully with the applicable provisions of
Rules 424 and 430A under the Securities Act in a timely manner; and comply
with the provisions of the Securities Act with respect to the disposition
of all
securities covered by the Shelf Registration Statement during the applicable
period in accordance with the intended method or methods of distribution
by the
sellers thereof set forth in the Shelf Registration Statement or supplement
to
the Prospectus.
(iii) Advise
the underwriter(s), if any, and selling Holders promptly (but in any event
within two Business Days) and, if requested by such Persons, to confirm such
advice in writing:
(A) when
the
Prospectus or any prospectus supplement or post-effective amendment has been
filed, and, with respect to the Shelf Registration Statement or any
post-effective amendment thereto, when the same has become
effective,
(B) of
any
request by the SEC for amendments to the Shelf Registration Statement or
amendments or supplements to the Prospectus or for additional information
relating thereto,
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(C) of
the
issuance by the SEC of any stop order suspending the effectiveness of the
Shelf
Registration Statement under the Securities Act or of the suspension by any
state securities commission of the qualification of the Registrable Securities
for offering or sale in any jurisdiction, or the initiation of any proceeding
for any of the preceding purposes,
(D) of
a
pending proceeding against the Company under Section 8A of the Securities
Act in
connection with the offering of the Registrable Securities, or
(E) of
the
existence of any fact or the happening of any event, during the Effectiveness
Period, that makes any statement of a material fact made in the Shelf
Registration Statement, the Prospectus, any amendment or supplement thereto,
or
any document incorporated by reference therein, untrue, or that requires
the
making of any additions to or changes in the Shelf Registration Statement
or the
Prospectus in order to make the statements therein not misleading. Each Holder
of Registrable Securities, by accepting the same, agrees to hold any
communication from the Company pursuant to this Section 4(b)(iii) in
confidence.
If
at any
time the SEC shall issue any stop order suspending the effectiveness of the
Shelf Registration Statement, or any state securities commission or other
regulatory authority shall issue an order suspending the qualification or
exemption from qualification of the Registrable Securities under state
securities or “blue sky” laws, the Company shall use its best efforts to obtain
the withdrawal or lifting of such order at the earliest possible time and
will
provide to the each Holder who is named in the Shelf Registration Statement
prompt notice of the withdrawal of any such order.
(iv) Furnish
to each selling Holder and to each of the underwriter(s), if any, and their
respective counsel, if any, before filing with the SEC, a copy of the Shelf
Registration Statement and copies of any Prospectus included therein or any
amendments or supplements to the Shelf Registration Statement or Prospectus
(other than documents incorporated by reference after the initial filing
of the
Shelf Registration Statement), which documents will be subject to the review
of
such selling Holders, underwriter(s) and counsel for a period of at least
five
Business Days, and the Company will not file the Shelf Registration Statement
or
Prospectus or any amendment or supplement to the Shelf Registration Statement
or
Prospectus (other than documents incorporated by reference) to which a selling
Holder of Registrable Securities covered by the Shelf Registration Statement
or
the selling Holders, underwriter(s), if any, shall reasonably object within
five
Business Days after the receipt thereof. The Company shall also furnish to
each
of the underwriter(s), if any, and their respective counsel, if any, before
filing with the SEC, if reasonably practicable, or otherwise promptly after
filing with the SEC, copies of any amendments to the Shelf Registration
Statement or supplements to the Prospectus (other than documents incorporated
by
reference after the initial filing of the Shelf Registration Statement),
and
make the Company’s representatives available for discussion of such amendments
or supplements and make such changes in such amendments or supplements prior
to
the filing thereof, if reasonably practicable, or prepare and file further
amendments or supplements, as the selling Holders, underwriter(s), if any,
or
their respective counsel, if any, may reasonably request. An objection by
a
selling Holder or an underwriter or by counsel to a selling Holder or an
underwriter shall be deemed to be a reasonable objection to such filing if
the
Shelf Registration Statement, amendment, Prospectus or supplement, as
applicable, as proposed to be filed, would contain a material misstatement
or
omission.
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(v) Make
available at reasonable times for inspection by one or more representatives
of
the selling Holders designated in writing by a Majority of Holders whose
Registrable Securities are included in the Shelf Registration Statement,
any
underwriter participating in any distribution pursuant to the Shelf Registration
Statement, and any attorney or accountant retained by such selling Holders
or
any of the underwriter(s), all financial and other records, pertinent corporate
documents and properties of the Company as shall be reasonably necessary
to
enable them to exercise any applicable due diligence responsibilities, and
cause
the Company’s officers, directors, managers, employees and independent
accountants to supply all information reasonably requested by any such
representative or representatives of the selling Holders, underwriter, attorney
or accountant in connection with the Shelf Registration Statement after the
filing thereof and before its effectiveness, provided, however, that any
information designated by the Company as confidential at the time of delivery
of
such information shall be kept confidential by the recipient thereof; and
provided, further, that in no event shall the Company be required to furnish
any
material nonpublic information pursuant to this
subsection (v).
(vi) If
requested by any selling Holders or the underwriter(s), if any, promptly
incorporate in the Shelf Registration Statement or Prospectus, pursuant to
a
supplement or post-effective amendment if necessary, such information as
such
selling Holders and underwriter(s), if any, may reasonably request to have
included therein, including, without limitation: (A) information relating
to the “Plan of Distribution” of the Registrable Securities,
(B) information with respect to the number of Registrable Securities being
sold, (C) the purchase price being paid therefor and (D) any other
terms of the offering of the Registrable Securities to be sold in such offering;
provided, however, that with respect to any information requested for inclusion
by a selling Holder, this clause (vi) shall apply only to such information
that relates to the Registrable Securities to be sold by such selling Holder;
and make all required filings of such prospectus supplement or post-effective
amendment as soon as reasonably practicable after the Company is notified
of the
matters to be incorporated in such prospectus supplement or post-effective
amendment.
(vii) Furnish
to each selling Holder and each of the underwriter(s), if any, without charge,
at least one copy of the Shelf Registration Statement, as first filed with
the
SEC, and of each amendment thereto (and any documents incorporated by reference
therein or exhibits thereto (or exhibits incorporated in such exhibits by
reference) as such Person may request).
(viii) Deliver
to each selling Holder and each of the underwriter(s), if any, without charge,
as many copies of the Prospectus (including each preliminary prospectus)
and any
amendment or supplement thereto as such Persons reasonably may request; subject
to any notice by the Company in accordance with this Section 4(b)
of the
existence of any fact or event of the kind described in Section
4(b)(iii)(D),
the
Company hereby consents to the use of the Prospectus and any amendment or
supplement thereto by each of the selling Holders and each of the
underwriter(s), if any, in connection with the offering and the sale of the
Registrable Securities covered by the Prospectus or any amendment or supplement
thereto.
(ix) If
an
underwriting agreement is entered into in connection with the registration,
the
Company shall:
(A) upon
request, furnish to each selling Holder and each underwriter, in such substance
and scope as they may reasonably request and as are customarily made by issuers
to underwriters in primary underwritten offerings for selling security holders,
upon the date of closing of any sale of Registrable Securities in an
Underwritten Offering:
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(1) opinions,
each dated the date of such closing, of counsel to the Company covering such
of
the matters as are customarily covered in legal opinions to underwriters
in
connection with underwritten offerings of securities; and
(2) customary
comfort letters, dated the date of such closing, from the Company’s independent
accountants, in the customary form and covering matters of the type customarily
covered in comfort letters to underwriters in connection with primary
underwritten offerings of securities;
(B) set
forth
in full in the underwriting agreement, if any, indemnification provisions
and
procedures which provide rights no less protective than those set forth in
Section 6
hereof
with respect to all parties to be indemnified; and
(C) deliver
such other documents and certificates as may be reasonably requested by such
parties to evidence compliance with clause (A) above and with any customary
conditions contained in the underwriting agreement or other agreement entered
into by the selling Holders pursuant to this clause (ix).
(x) Before
any public offering of Registrable Securities, use its best efforts to register
or qualify the Registrable Securities under the securities or Blue Sky laws
of
such jurisdictions in the United States as the selling Holders or
underwriter(s), if any, may reasonably request and 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 Shelf Registration Statement;
provided, however, that the Company shall not be required (A) to register
or qualify as a foreign corporation or a dealer of securities where it is
not
now so qualified or to take any action that would subject it to the service
of
process in any jurisdiction where it is not now so subject or (B) to
subject itself to taxation in any such jurisdiction if it is not now so
subject.
(xi) Cooperate
with the selling Holders and the underwriter(s), if any, to facilitate the
timely preparation and delivery of certificates representing Registrable
Securities to be sold and not bearing any restrictive legends (unless required
by applicable securities laws) and enable such Registrable Securities to
be in
such denominations and registered in such names as the Holders or the
underwriter(s), if any, may request at least two Business Days before any
sale
of Registrable Securities.
(xii) Use
its
best efforts to cause the Registrable Securities covered by the Shelf
Registration Statement to be registered with or approved by such other U.S.
governmental agencies or authorities as may be necessary to enable the seller
or
sellers thereof or the underwriter(s), if any, to consummate the disposition
of
such Registrable Securities.
(xiii) Subject
to Section
4(b)(i)
hereof,
if any fact or event contemplated by Section
4(b)(iii)(E)
hereof
shall exist or have occurred, use its reasonable best efforts to prepare
a
supplement or post-effective amendment to the Shelf Registration Statement
or
related Prospectus or any document incorporated therein by reference or file
any
other required document so that, as thereafter delivered to the purchasers
of
Registrable Securities, the Prospectus will not contain an 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
in
which they were made, not misleading.
(xiv) Provide
a
transfer agent and registrar for all such Registrable Securities not later
than
the effective date of the Shelf Registration Statement.
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(xv) Enter
into such customary agreements (including underwriting agreements in customary
form) and take all such other actions as a Majority of Holders or the
underwriters, if any, reasonably request in order to expedite or facilitate
the
disposition of Registrable Securities (including effecting a stock split
or
combination of shares).
(xvi) Cooperate
and assist in any filings required to be made with the NASD and in the
performance of any due diligence investigation that is required to be retained
in accordance with the rules and regulations of the NASD.
(xvii) Otherwise
use its commercially reasonable efforts to comply with all applicable rules
and
regulations of the SEC and all reporting requirements of the Exchange
Act.
(xviii) Cause
all
Registrable Securities covered by the Shelf Registration Statement to be
listed
or quoted, as the case may be, on each securities exchange or automated
quotation system on which similar securities issued by the Company are then
listed or quoted.
(xix) Provide
promptly to each Holder upon written request each document filed with the
SEC
pursuant to the requirements of Section 13 and Section 15 of the
Exchange Act during the Effectiveness Period.
(xx) If
reasonably requested by the underwriter(s), make appropriate officers of
the
Company reasonably available to the underwriter(s) for meetings with prospective
purchasers of the Registrable Securities and prepare and present to potential
investors customary “road show” or marketing material in a manner consistent
with other new issuances of other securities similar to the Registrable
Securities.
(xxi) File
each
Shelf Registration Statement and Prospectus required to be filed in accordance
with this Agreement and any amendments and/or supplements thereto electronically
on XXXXX.
(c) Each
Holder agrees that, upon receipt of any notice (a “Suspension
Notice”)
from
the Company of the existence of any fact of the kind described in Section
4(b)(x)
or
Section
4(b)(iii)(E)
hereof,
such Holder will, and will use its reasonable efforts to cause any
underwriter(s) in an Underwritten Offering to, forthwith discontinue disposition
of Registrable Securities pursuant to the Shelf Registration Statement
until:
(i) such
Holder has received copies of the supplemented or amended Prospectus
contemplated by Section
4(b)(xiii)
hereof;
or
(ii) such
Holder is advised in writing by the Company that the use of the Prospectus
may
be resumed, and has received copies of any additional or supplemental filings
that are incorporated by reference in the Prospectus.
If
so
directed by the Company, each Holder will deliver to the Company (at the
Company’s expense) all copies, other than permanent file copies then in such
Holder’s possession, of the Prospectus covering such Registrable Securities that
was current at the time of receipt of such notice of suspension.
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(d) If
a
Holder is identified in the Shelf Registration Statement as an “underwriter”
(any such Holder, an “Identified
Holder”),
then
at the request of such Identified Holder the Company shall furnish to such
Identified Holder, on the date of the effectiveness of the Shelf Registration
Statement and thereafter from time to time on such dates as such Identified
Holder may reasonably request, (i) a letter, dated such date, from the Company’s
independent certified public accountants in form and substance as is customarily
given by independent certified public accountants to underwriters in an
underwritten public offering, addressed to such Identified Holder, and (ii)
an
opinion, dated as of such date, of counsel representing the Company for purposes
of the Shelf Registration Statement, in form, scope and substance as is
customarily given in an underwritten public offering, addressed to such
Identified Holder.
(e) Notwithstanding
anything herein to the contrary, no Holder shall be designated as an
“underwriter” by the Company in the Shelf Registration Statement without the
consent of such Holder unless otherwise required by law. In connection with
the
due diligence efforts of any Identified Holder, the Company shall make available
for inspection during business hours and upon reasonable advance request
by (i)
any Identified Holder, (ii) counsel for the holders of majority of the
Registrable Securities held by all Identified Holders and (iii) one firm
of
accountants or other agents retained by holders of a majority of Registrable
Securities held by the Identified Holders (collectively, the “Inspectors”),
all
pertinent financial and other records, and pertinent corporate documents
and
properties of the Company (collectively, the “Records”),
as
shall be reasonably deemed necessary by each Inspector, and cause the Company’s
officers, directors and employees to supply all information which any Inspector
may reasonably request; provided, however, that each Inspector shall agree
in
writing to hold in strict confidence and shall not make any disclosure (except
to a Identified Holder) or use of any Record or other information which the
Company determines in good faith to be confidential, and of which determination
the Inspectors are so notified, unless (a) the disclosure of such Records
is
necessary to avoid or correct a misstatement or omission in the Shelf
Registration Statement or is otherwise required under the Securities Act,
(b)
the release of such Records is ordered pursuant to a final, non-appealable
subpoena or order from a court or government body of competent jurisdiction,
or
(c) the information in such Records has been made generally available to
the
public other than by disclosure in violation of this or any other agreement
of
which the Inspector has knowledge. Each Holder agrees that it shall, upon
learning that disclosure of such Records is sought in or by a court or
governmental body of competent jurisdiction or through other means, give
prompt
notice to the Company and allow the Company, at its expense, to undertake
appropriate action to prevent disclosure of, or to obtain a protective order
for, the Records deemed confidential. Nothing herein (or in any other
confidentiality agreement between the Company and any Holder) shall be deemed
to
limit the Holders’ ability to sell Registrable Securities in a manner that is
otherwise consistent with applicable laws and regulations.
5. Registration
Expenses.
(a) The
Company shall pay all Registration Expenses incident to the Company’s
performance of or compliance with this Agreement. The Company shall bear
its
internal expenses (including, without limitation, all salaries and expenses
of
its officers and employees performing legal, accounting or other duties),
the
expenses of any annual audit or quarterly review, the expense of any liability
insurance and the fees and expenses of any Person, including special experts,
retained by the Company.
10
(b) In
connection with the Shelf Registration Statement required by this Agreement,
including any amendment or supplement thereto, and any other documents delivered
to any Holders, the Company shall reimburse the Holders of Registrable
Securities being registered pursuant to the Shelf Registration Statement,
as
applicable, for the reasonable fees and disbursements of not more than one
counsel (including local counsel), which shall be chosen by a Majority of
Holders for whose benefit the Shelf Registration Statement is being prepared.
The Company shall not be required to pay any underwriting discount, commission
or similar fee related to the sale of any securities.
(c) Each
Holder shall bear its Selling Expenses.
6. Indemnification
and Contribution.
(a) The
Company shall indemnify and hold harmless, to the fullest extent permitted
by
law, each Holder, such Holder’s officers, directors, members, agents, partners
and employees and each person, if any, who controls such Holder within the
meaning of the Securities Act (each, an “Indemnified
Holder”),
from
and against any loss, claim, damage, liability or expense, joint or several,
or
any action in respect thereof (including, but not limited to, any loss, claim,
damage, liability, expense, or action relating to resales of the Registrable
Securities), together with reasonable costs and expenses (including reasonable
attorney’s fees) to which such Indemnified Holder may become subject, insofar as
any such loss, claim, damage, liability, expense or action arises out of,
or is
based upon:
(i) any
untrue statement or alleged untrue statement of a material fact contained
in
(A) the Shelf Registration Statement or Prospectus or any amendment or
supplement thereto or (B) any blue sky application or other document or any
amendment or supplement thereto prepared or executed by the Company (or based
upon written information furnished by or on behalf of the Company expressly
for
use in such blue sky application or other document or amendment on supplement)
filed in any jurisdiction specifically for the purpose of qualifying any
or all
of the Registrable Securities under the securities law of any state or other
jurisdiction (such application or document being hereinafter called a
“Blue
Sky Application”);
or
(ii) the
omission or alleged omission to state therein any material fact required
to be
stated therein or necessary to make the statements therein, in the light
of the
circumstances under which they were made, not misleading, and shall promptly
reimburse each Indemnified Holder promptly upon demand for any legal or other
expenses reasonably incurred by such Indemnified Holder in connection with
investigating or defending or preparing to defend against any such loss,
claim,
damage, liability, expense or action as such expenses are incurred; provided,
however, that the Company shall not be liable in any such case to the extent
that any such loss, claim, damage, liability, expense or action arises out
of,
or is based upon, (A) any untrue statement or alleged untrue statement or
omission or alleged omission made in the Shelf Registration Statement or
Prospectus or amendment or supplement thereto or Blue Sky Application or
other
document referred to in Section 6(a)(i)
hereof
in reliance upon and in conformity with written information furnished to
the
Company by or on behalf of any Holder (or its related Indemnified Holder)
specifically for use therein or (B) the failure by the Holder or
Indemnified Holder to deliver to any purchaser of its Registrable Securities
the
Prospectus and any supplement or amendment thereto after the Company has
furnished such Holder or Indemnified Holder with a sufficient number of copies
of the same. The foregoing indemnity agreement is in addition to any liability
that the Company may otherwise have to any Indemnified Holder.
11
(b) Each
Holder, severally and not jointly, shall indemnify and hold harmless, to
the
fullest extent permitted by law, the Company, each other Holder, their
respective officers, directors, agents and employees and each person, if
any,
who controls the Company or such other Holder within the meaning of the
Securities Act, from and against any loss, claim, damage, liability or expense,
joint or several, or any action in respect thereof, to which the Company,
such
other Holder or any such officer, director, agent, employee or controlling
person may become subject, insofar as any such loss, claim, damage, liability,
expense or action arises out of, or is based upon:
(i) any
untrue statement or alleged untrue statement of any material fact contained
in
the Shelf Registration Statement or Prospectus or any amendment or supplement
thereto or any Blue Sky Application or other document referred to in
Section
6(a)(i)
hereof;
or
(ii) the
omission or the alleged omission to state therein 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,
but
in
each case only to the extent that such untrue statement or alleged untrue
statement or omission or alleged omission was made in reliance upon and in
conformity with written information prepared and furnished to the Company
by or
on behalf of such Holder (or its related Indemnified Holder) specifically
for
use therein, and shall reimburse the Company and any such officer, employee
or
controlling person promptly upon demand for any legal or other expenses
reasonably incurred by the Company or any such officer, employee or controlling
person in connection with investigating or defending or preparing to defend
against any such loss, claim, damage, liability, expense or action as such
expenses are incurred, provided that the obligation to indemnify will be
individual, not joint and several, for each Holder and shall be limited to
the
net amount of proceeds receive by such Holder from the sale of Registrable
Securities pursuant to Shelf Registration Statement.
(c) Promptly
after receipt by an indemnified party under this Section 6 of notice of any
claim or the commencement of any action, the indemnified party shall, if
a claim
in respect thereof is to be made against the indemnifying party under this
Section 6, notify the indemnifying party in writing of the claim or the
commencement of that action; provided, however, that the failure to notify
the
indemnifying party shall not relieve the indemnifying party from any liability
which it may have under this Section 6 except to the extent the
indemnifying party has been prejudiced by such failure. If any such claim
or
action shall be brought against an indemnified party, and it shall notify
the
indemnifying party thereof, the indemnifying party shall be entitled to
participate therein and, to the extent that it wishes, jointly with any other
similarly notified indemnifying party, to assume the defense thereof with
counsel satisfactory to the indemnified party. After notice from the
indemnifying party to the indemnified party of its election to assume the
defense of such claim or action, the indemnifying party shall not be liable
to
the indemnified party under this Section 6
for any
legal or other expenses subsequently incurred by the indemnified party in
connection with the defense thereof other than reasonable costs of
investigation; provided, however, that a Majority of Holders shall have the
right to employ at the expense of such Holders a single counsel to represent
jointly the Holders and their respective directors, officers, members, agents,
partners, employees and controlling persons who may be subject to liability
arising out of any claim in respect of which indemnity may be sought by Holders
against the Company under this Section 6; and provided, further, that if a
Majority of Holders shall have reasonably concluded that there may be one
or
more legal defenses available to them and their respective officers, employees
and controlling persons that are different from or additional to those available
to the Company and its officers, directors, employees and controlling persons,
then the fees and expenses of such single separate counsel shall be paid
for by
the indemnifying party. No indemnifying party shall:
12
(i) without
the prior written consent of the indemnified parties (which consent shall
not be
unreasonably withheld or delayed) settle or compromise or consent to the
entry
of any judgment with respect to any pending or threatened claim, action,
suit or
proceeding in respect of which indemnification or contribution may be sought
hereunder (whether or not the indemnified parties are actual or potential
parties to such claim or action) unless such settlement, compromise or consent
includes an unconditional release of each indemnified party from all liability
arising out of such claim, action, suit or proceeding, or
(ii) be
liable
for any settlement of any such action effected without its written consent
(which consent shall not be unreasonably withheld or delayed), but if settled
with its written consent or if there be a final judgment for the plaintiff
in
any such action, the indemnifying party agrees to indemnify and hold harmless
any indemnified party from and against any loss or liability by reason of
such
settlement or judgment.
(d) If
the
indemnification provided for in this Section
6
shall
for any reason be unavailable or insufficient to hold harmless an indemnified
party under Section 6(a)
or
6(b)
in
respect of any loss, claim, damage, liability or expense (or action in respect
thereof) referred to therein, each indemnifying party shall, in lieu of
indemnifying such indemnified party, contribute to the amount paid or payable
by
such indemnified party as a result of such loss, claim, damage or liability
(or
action in respect thereof):
(i) in
such
proportion as is appropriate to reflect the relative fault of the Company
on the
one hand and the Holders on the other, or
(ii) if
the
allocation provided by clause
(6)(d)(i)
is not
permitted by applicable law, in such proportion as is appropriate to reflect
not
only the relative fault referred to in clause
6(d)(i)
but also
the relative benefits received by the Company from the offering and sale
of the
Registrable Securities on the one hand and a Holder with respect to the sale
by
such Holder of the Registrable Securities on the other in connection with
the
statements or omissions or alleged statements or alleged omissions that resulted
in such loss, claim, damage or liability (or action in respect thereof),
as well
as any other relevant equitable considerations.
The
relative benefits received by the Company on the one hand and a Holder on
the
other with respect to such offering and such sale shall be deemed to be in
the
same proportion as the total net proceeds from the offering of the Registrable
Securities (before deducting expenses) received by the Company, on the one
hand,
bear to the total proceeds received by such Holder (before deducting expenses)
with respect to its sale of Registrable Securities on the other. The relative
fault of the parties shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Company on the one hand or the Holders on the other, the
intent
of the parties and their relative knowledge, access to information and
opportunity to correct or prevent such statement or omission. The Company
and
each Holder agree that it would not be just and equitable if the amount of
contribution pursuant to this Section 6(d)
were
determined by pro rata
allocation (even if the selling Holders were treated as one entity for such
purpose) or by any other method of allocation that does not take into account
the equitable considerations referred to in the first sentence of this
paragraph (d). The amount paid or payable by an indemnified party as a
result of the loss, claim, damage, liability or expense, or action in respect
thereof, referred to above in this Section 6 shall be deemed to include,
for purposes of this Section 6 and subject to the limitations set forth
above, any legal or other expenses reasonably incurred by such indemnified
party
in connection with investigating or defending or preparing to defend any
such
action or claim.
13
Notwithstanding
the provisions of this Section 6, no Holder shall be required to contribute
any amount in excess of the amount by which net proceeds received by such
Holder
from the sale of Registrable Securities covered by the Shelf Registration
Statement exceeds the amount of any damages which such Holder has otherwise
been
required to pay by reason of any untrue or alleged untrue statement or omission
or alleged omission. No person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. The Holders’ obligations to contribute as provided in this
Section 6(d)
are
several and not joint.
7. Participation
in Underwritten Offerings.
No
Holder
may participate in any Underwritten Offering hereunder unless such
Holder:
(a) agrees
to
sell such Holder’s Registrable Securities on the basis provided in any
underwriting arrangements approved by the Persons entitled hereunder to approve
such arrangements; and
(b) completes
and executes all reasonable and customary questionnaires, powers of attorney,
custody agreements, indemnities, underwriting agreements, lock-up letters
and
other documents required under the terms of such underwriting arrangements,
provided that no Holder shall be required to make any representations or
warranties to the Company or the underwriters (other than representations
and
warranties regarding such Holder and such Holder’s intended method of
distribution) or to undertake any indemnification obligations to the Company
or
the underwriters with respect thereto, except as otherwise provided in
Section 6 hereof.
8. Selection
of Underwriters.
The
Holders of Registrable Securities covered by the Shelf Registration Statement
who desire to do so may sell such Registrable Securities in an Underwritten
Offering. In
any
such Underwritten Offering, the investment banking firm or firms and manager
or
managers that will administer the offering will be selected by a Majority
of
Holders whose Registrable Securities are included in such offering; provided,
that
such investment banking firms must be reasonably satisfactory to the
Company.
9. Miscellaneous.
(a) Remedies.
The
Company acknowledges and agrees that any failure by the Company to comply
with
its obligations under Section 2
hereof
may result in material irreparable injury to the Purchasers or the Holders
for
which there is no adequate remedy at law, that it will not be possible to
measure damages for such injuries precisely and that, in the event of any
such
failure, the Purchasers or any Holder may obtain such relief as may be required
to specifically enforce the Company’s obligations under Section 2
hereof.
The Company further agrees to waive the defense in any action for specific
performance that a remedy at law would be adequate.
(b) Amendments
and Waivers.
This
Agreement may not be amended, modified or supplemented, and waivers or consents
to or departures from the provisions hereof may not be given, unless the
Company
has obtained the written consent of a Majority of Holders.
(c) Notices.
All
notices and other communications provided for or permitted hereunder shall
be
made in writing by hand-delivery, first-class mail (registered or certified,
return receipt requested), telex, telecopier, or air courier guaranteeing
overnight delivery:
14
(i) if
to a
Holder, at the address set forth on the records Company of or the transfer
agent
of the Registrable Securities, as the case may be; and
|
(ii) if
to the Company:
|
00000
Xxxx Xxxxxxx, Xxxxx 000
Xxxxxxx,
Xxxxx 00000
Tel:
(000) 000-0000
Fax:
(000) 000-0000
Attn:
Xxx X. Xxxxx
|
|
with
a copy to:
|
Xxxxxxxxx
Traurig, P.A.
0000
Xxxxxxxx Xxxxxx
Xxxxx,
XX 00000
Tel:
(000) 000-0000
Fax:
(000) 0000-0000
Attn: Xxx
X. Xxxxxx, Esq.
|
All
such
notices and communications shall be deemed to have been duly given at: the
time
delivered by hand, if personally delivered; five Business Days after being
deposited in the mail, postage prepaid, if mailed; when answered back, if
telexed; when receipt acknowledged, if transmitted by facsimile; and on the
next
Business Day, if timely delivered to an air courier guaranteeing overnight
delivery.
(d) Successors
and Assigns.
This
Agreement shall inure to the benefit of and be binding upon the successors
and
assigns of each of the parties, including without limitation subsequent Holders
of Registrable Securities; provided, however, that (i) this Agreement shall
not inure to the benefit of or be binding upon a successor or assign of a
Holder
unless and to the extent such successor or assign acquired Registrable
Securities from such Holder and agreed in writing to be bound by the terms
of
this Agreement and (ii) nothing contained herein shall be deemed to permit
any assignment, transfer or other disposition of Registrable Securities in
violation of any Subscription Agreement or other agreement with the Company
which restricts the sale or disposition of Registrable Securities. If any
transferee of any Holder shall acquire Registrable Securities, in any manner,
whether by operation of law or otherwise, such Registrable Securities shall
be
held subject to all of the terms of this Agreement, and by taking and holding
such Registrable Securities such person shall be conclusively deemed to have
agreed to be bound by and to perform all of the terms and provisions of this
Agreement.
(e) Counterparts.
This
Agreement may be executed in any number of counterparts and by the parties
hereto in separate 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.
(f) Headings.
The
headings in this Agreement are for convenience of reference only and shall
not
limit or otherwise affect the meaning hereof.
(g) Governing
Law.
This
Agreement shall be governed by and construed in accordance with the laws
of the
State of Florida without regard to its principles of conflict of laws that
would
cause the laws of another jurisdiction to apply.
15
(h) Severability.
If any
one or more of the provisions contained herein, or the application thereof
in
any circumstance, is held invalid, illegal or unenforceable, the validity,
legality and enforceability of any such provision in every other respect
and of
the remaining provisions contained herein shall not be affected or impaired
thereby.
(i) 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. There are no restrictions, promises, warranties or undertakings,
other
than those set forth or referred to herein, with respect to the registration
rights granted by the Company with respect to the Registrable Securities.
This
Agreement supersedes all prior agreements and understandings between the
parties
with respect to such subject matter.
[THE
REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK]
16
IN
WITNESS WHEREOF,
the
parties have executed this Agreement as of the date first written
above.
By: ____________________________
Name:
Title:
[Purchaser
Signature Page Follows]
17
EXECUTION
COPY
Holder
Signature Page
Registration
Rights Agreement - H2Diesel Holdings Inc.
The
foregoing Agreement is hereby confirmed and accepted as of the date first
above
written.
______________________
[Name
of
Holder]
By:
Name:
Title:
EXHIBIT
A
HOLDERS
[Names
of
each Holder shall be inserted upon the Closing]
EXHIBIT
B
NOTICE
AND QUESTIONNAIRE
(TIME
SENSITIVE MATERIAL)
THIS
NOTICE AND QUESTIONNAIRE MUST BE RETURNED TO H2DIESEL HOLDINGS, INC. (AT
THE
ADDRESS LISTED BELOW) ON OR BEFORE THE 20TH BUSINESS DAY FOLLOWING DELIVERY
OF
THE NOTICE AND QUESTIONNAIRE BY H2DIESEL TO THE REGISTERED
HOLDER.
Capitalized
terms used but not defined herein shall have the respective meanings set
forth
in the Registration Rights Agreement, dated as of _______ ___, 2007 (the
“Registration
Rights Agreement”),
between the Company and Holders named therein.
Form
of Selling Securityholder Notice and Questionnaire
The
undersigned Holder of the Registrable Securities of the Company understands
that
the Company has filed, or intends to file, with the SEC a Shelf Registration
Statement for the registration and resale under Rule 415 of the Securities
Act,
Registrable Securities in accordance with the terms of the Registration Rights
Agreement. A copy of the Registration Rights Agreement is available from
the
Company upon request at the address set forth below.
Each
beneficial owner of Registrable Securities that has agreed in writing to
be
bound by the Registration Rights Agreement is entitled to the benefits of
the
Registration Rights Agreement. In order to sell or otherwise dispose of any
Registrable Securities pursuant to the Shelf Registration Statement, a
beneficial owner of Registrable Securities generally will be required to
be
named as a selling securityholder in the related Prospectus, deliver a
Prospectus either to purchasers of Registrable Securities or, if relying
on Rule
172 of the Securities Act, confirm that a current prospectus is deemed delivered
in connection with the sale of Registrable Securities, and be bound by those
provisions of the Registration Rights Agreement applicable to such beneficial
owner (including certain indemnification provisions, as described below).
Beneficial owners are encouraged to complete and deliver this Notice and
Questionnaire prior to the effectiveness of the Shelf Registration Statement
so
that such beneficial owners may be named as selling securityholders in the
related prospectus.
Certain
legal consequences arise from being named as a selling securityholder in
the
Shelf Registration Statement and the related Prospectus. Accordingly, holders
and beneficial owners of Registrable Securities are advised to consult their
own
securities law counsel regarding the consequences of being named or not being
named as a selling securityholder in the Shelf Registration Statement and
the
related Prospectus.
NOTICE
The
undersigned Holder (the “Selling
Securityholder”)
of
Registrable Securities hereby gives notice to the Company of its intention
to
sell or otherwise dispose of Registrable Securities beneficially owned by
it and
listed below in Item 3 (unless otherwise specified under Item 3)
pursuant to the Shelf Registration Statement. The undersigned, by signing
and
returning this Notice and Questionnaire, understands that it will be bound
by
the terms and conditions of this Notice and Questionnaire and the Registration
Rights Agreement.
B-2
Pursuant
to Section 6(b) of the Registration Rights Agreement, the undersigned has
agreed
to indemnify and hold harmless the Company and certain other persons, from
and
against certain losses arising in connection with statements concerning the
undersigned made in the Shelf Registration Statement or the related Prospectus
in reliance upon the information provided in this Notice and
Questionnaire.
The
undersigned hereby provides the following information to the Company and
represents and warrants that such information is accurate and
complete:
QUESTIONNAIRE
1. Information
Regarding Selling Securityholder
(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):
|
|
(d)
|
Is
the Selling Securityholder an SEC-reporting company? If the Selling
Security-holder is not an SEC-reporting company, list below the
individual
or individuals who exercise the voting and/or dispositive powers
with
respect to the Securities:
|
|
(e)
|
Are
you a broker-dealer registered pursuant to Section 15 of the Exchange
Act?
|
o Yes.
o No.
Note:
If yes,
the SEC’s staff has indicated that you should be identified as an underwriter in
the Shelf Registration Statement.
|
(f)
|
If
your response to Item 1(e) above is “no,” are you an “affiliate” of a
broker-dealer registered pursuant to Section 15 of the Exchange
Act?
|
o Yes.
o No.
B-3
For
purposes of this Item 1(f), an “affiliate” of a registered broker-dealer shall
include any company that directly, or indirectly through one or more
intermediaries, controls, or is controlled by, or is under common control
with,
such broker-dealer, and does not include any individuals employed by such
broker-dealer or its affiliates.
|
(g)
|
If
you are an affiliate of a broker-dealer, do you certify that you
bought
the Registrable Securities to be resold, 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?
|
o Yes.
o No.
|
(h)
|
Full
legal name of person through which you hold the Registrable Securities
-
(i.e. name of your broker or the DTC participant, if applicable,
through
which your Registrable Securities are
held):
|
Name
of
broker: ___________________________________
DTC
No:
________________________________________
Contact
person: ___________________________________
Telephone
No. (including area code): ___________________
E-mail
address: ______________________________
2. Address
for Notices to Selling Securityholder
Telephone:
_______________________________________
Fax:
_____________________________________________
Contact
Person: ____________________________________
Email
address: _____________________________________
3. Beneficial
Ownership of Registrable Securities
Number
of
shares of Registrable Securities of the Company beneficially owned:
_____________________________________
CUSIP No(s). of such Registrable Securities beneficially owned:
_________________________________________________
B-4
4. Nature
of Beneficial Ownership
|
(a)
|
Check
if the Selling Securityholder set forth in your response to Item
1(a) is
any of the below:
|
|
(A)
|
A
reporting company under the Exchange Act. o
|
|
(B)
|
A
majority owned subsidiary of a reporting company under the Exchange
Act.
o
|
|
(C)
|
A
registered investment fund under the Investment Company Act of
1940. o
|
|
(b)
|
If
the Selling Securityholder set forth in your response to Item 1(a)
above
is a limited partnership, state the names of the general partners
of such
limited partnership:
|
|
(A)
|
With
respect to each general partner listed in Item 4(b) above who is
not a
natural person, and is not publicly-held, name each shareholder
(or holder
of partnership interests, if applicable) of such general partner.
If any
of these named shareholders are not natural persons or publicly-held
entities, please provide the same information. This process should
be
repeated until you reach natural persons or a publicly-held
entity.
|
|
(c)
|
Name
your controlling shareholder(s) (the “Controlling
Entity”).
If the Controlling Entity is not a natural person and is not a
publicly-held entity, name each shareholder of such Controlling
Entity. If
any of these named shareholders are not natural persons or publicly-held
entities, please provide the same information. This process should
be
repeated until you reach natural persons or a publicly-held
entity.
|
(A) (i) Full
legal name of Controlling Entity(ies) or natural person(s) who have sole
or
shared voting or dispositive power over the Registrable Securities:
(ii) Business
address (including street address) (or residence if no business address),
telephone number and facsimile number of such person(s):
Address: __________________________________
Telephone
No.: _______________________
Fax
No.:
B-5
(iii) Name
of
shareholders:
(B) (i) Full
legal name of Controlling Entity(ies):
(ii) Business
address (including street address) (or residence if no business address),
telephone number and facsimile number of such person(s):
Address:
Telephone
No.:
Fax
No.:
(iii) Name
of
shareholders:
|
5.
|
Beneficial
Ownership of the Company’s Securities 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) (“Other
Securities”).
Type
and
amount of Other Securities beneficially owned by the Selling
Securityholder:
CUSIP
No(s). of such Other Securities beneficially owned:
|
6.
|
Relationship
with the Company
|
Except
as
set forth below, neither the undersigned nor any of its affiliates, officers,
directors or principal equity holders (5% or more) 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
|
Except
as
set forth below, the undersigned (including its donees or pledgees) intends
to
distribute the Registrable Securities listed above in Item (3) pursuant to
the Shelf Registration Statement only as follows (if at all). Such Registrable
Securities may be sold from time to time directly by the undersigned or,
alternatively, through underwriters, broker-dealers or agents. If the
Registrable Securities are sold through underwriters or broker-dealers, the
Selling Securityholder will be responsible for underwriting discounts or
commissions or agent’s commissions. Such Registrable Securities may be sold in
one or more transactions at fixed prices, at prevailing market prices at
the
time of sale, at varying prices determined at the time of sale, or at negotiated
prices. Such sales may be effected in transactions (which may involve crosses
or
block transactions):
(a) on
any
national securities exchange or quotation service on which the Registrable
Securities may be listed or quoted at the time of sale;
(b) in
the
over-the-counter market;
(c) in
transactions otherwise than on such exchanges or services or in the
over-the-counter market; or
(d) through
the writing of options.
In
connection with sales of the Registrable Securities or otherwise, the
undersigned may enter into hedging transactions with broker-dealers, which
may
in turn engage in short sales of the Registrable Securities and deliver
Registrable Securities to close out such short positions, or loan or pledge
Registrable Securities to broker-dealers that in turn may sell such
securities.
State
any
exceptions here:
Note:
In no
event will such method(s) of distribution take the form of an underwritten
offering of the Registrable Securities without the prior agreement of the
Company.
|
8.
|
Acknowledgments
|
The
undersigned acknowledges that it understands its obligation to comply with
the
provisions of the Exchange Act and the rules thereunder relating to stock
manipulation, particularly Regulation M thereunder (or any successor rules
or
regulations), in connection with any offering of Registrable Securities pursuant
to the Shelf Registration Statement. The undersigned agrees that neither
it nor
any person acting on its behalf will engage in any transaction in violation
of
such provisions.
The
Selling Securityholder hereby acknowledges its obligations under the
Registration Rights Agreement to indemnify and hold harmless certain persons
as
set forth therein. Pursuant to the Registration Rights Agreement, the Company
has agreed under certain circumstances to indemnify the Selling Securityholders
against certain liabilities.
In
accordance with the undersigned’s obligation under the Registration Rights
Agreement to provide such information as may be required by law for inclusion
in
the Shelf 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 at any time while the Shelf Registration
Statement remains effective. All notices hereunder and pursuant to the
Registration Rights Agreement shall be made in writing at the address set
forth
below.
B-6
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 Shelf 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
Shelf
Registration Statement and the related Prospectus.
Once
this
Notice and Questionnaire is executed by the undersigned and received by the
Company, the terms of this Notice and Questionnaire, and the representations
and
warranties contained herein, shall be binding on, shall inure to the benefit
of
and shall be enforceable by the respective successors, heirs, personal
representatives and assigns of the Company and the undersigned with respect
to
the Registrable Securities beneficially owned by the undersigned and listed
in
Item (3) above.
This
Notice and Questionnaire shall be governed in all respects by the laws of
the
State of Florida.
B-7
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.
Beneficial
Owner
By:
_______________________________
Name:
________________________
Title:
_________________________
Dated:_____________
PLEASE
RETURN THE COMPLETED AND EXECUTED NOTICE AND QUESTIONNAIRE TO H2DIESEL HOLDINGS,
INC. NOT LATER THAN THE 20TH BUSINESS DAY AFTER THIS NOTICE AND QUESTIONNAIRE
HAVE BEEN DELIVERED TO THE REGISTERED HOLDER AT:
00000
Xxxx Xxxxxxx, Xxxxx 000
Xxxxxxx,
Xxxxx 00000
Tel:
(000) 000-0000
Fax:
(000) 000-0000
B-8
