EXHIBIT A
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (this "Agreement") is made and entered
into as of January 26, 2010, between Worldwide Energy and Manufacturing USA,
Inc., a Colorado corporation (the "Company"), and each of the several purchasers
signatory hereto (each such purchaser, a "Purchaser" and, collectively, the
"Purchasers").
This Agreement is made pursuant to the Securities Purchase
Agreement, dated as of the date hereof, between the Company and each Purchaser
(the "Purchase Agreement").
The Company and each Purchaser hereby agrees as follows:
1. Definitions.
CAPITALIZED TERMS USED AND NOT OTHERWISE DEFINED HEREIN THAT ARE
DEFINED IN THE PURCHASE AGREEMENT SHALL HAVE THE MEANINGS GIVEN SUCH TERMS IN
THE PURCHASE AGREEMENT. As used in this Agreement, the following terms shall
have the following meanings:
"Advice" shall have the meaning set forth in Section 6(d).
"Effectiveness Date" means, with respect to the Initial
Registration Statement required to be filed hereunder, the 90[th]
calendar day following the date hereof (or, in the event of a review by
the Commission, the 120[th] calendar day following the date hereof) and
with respect to any additional Registration Statements which may be
required pursuant to Section 3(c), the 90[th] calendar day following the
date on which an additional Registration Statement is required to be
filed hereunder; provided, however, that in the event the Company is
notified by the Commission that one or more of the above Registration
Statements will not be reviewed or is no longer subject to further review
and comments, the Effectiveness Date as to such Registration Statement
shall be the fifth Trading Day following the date on which the Company is
so notified if such date precedes the dates otherwise required above.
"Effectiveness Period" shall have the meaning set forth in Section
2(a).
"Event" shall have the meaning set forth in Section 2(b).
"Event Date" shall have the meaning set forth in Section 2(b).
"Filing Date" means, with respect to the Initial Registration
Statement required hereunder, the 30[th] calendar day following the date
hereof and, with respect to any additional Registration Statements which
may be required pursuant
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to Section 3(c), the earliest practical date on which the Company is
permitted by SEC Guidance to file such additional Registration Statement
related to the Registrable Securities.
"Holder" or "Holders" means the holder or holders, as the case may
be, from time to time of Registrable Securities.
"Indemnified Party" shall have the meaning set forth in Section
5(c).
"Indemnifying Party" shall have the meaning set forth in Section
5(c).
"Initial Registration Statement" means the initial Registration
Statement filed pursuant to this Agreement.
"Initial Shares" means a number of Registrable Securities equal to
the lesser of (a) the total number of Registrable Securities and (b) one-
third of the number of issued and outstanding shares of Common Stock that
are held by non-Affiliates of the Company on the day immediately prior to
the filing date of the Initial Registration Statement.
"Losses" shall have the meaning set forth in Section 5(a).
"Plan of Distribution" shall have the meaning set forth in Section
2(a).
"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
by the Commission pursuant to 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, as of any date of determination,
(a) all the Shares, (b) all Warrant Shares then issuable upon exercise of
the Warrants (assuming on such date the Warrants are exercised in full
without regard to any exercise limitations therein), (c) any additional
shares of Common Stock issuable in connection with any anti-dilution
provisions in the Warrants (in each case, without giving effect to any
limitations on conversion set forth in the limitations on exercise set
forth in the Warrants) and (d) any securities issued or then issuable
upon any stock split, dividend or other distribution, recapitalization
or similar event with respect to the foregoing; provided, however, that
any such Registrable Securities shall cease to be Registrable Securities
(and the Company shall not be required to maintain the effectiveness of
any, or file another, Registration
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Statement hereunder with respect thereto) for so long as (a) a
Registration Statement with respect to the sale of such Registrable
Securities is declared effective by the Commission under the Securities
Act and such Registrable Securities have been disposed of by the Holder
in accordance with such effective Registration Statement, (b) such
Registrable Securities have been previously sold in accordance with Rule
144, or (c) such securities become eligible for resale without volume or
manner-of-sale restrictions and without current public information
pursuant to Rule 144 as set forth in a written opinion letter to such
effect, addressed, delivered and acceptable to the Transfer Agent and the
affected Holders (assuming that such securities and any securities
issuable upon exercise, conversion or exchange of which, or as a dividend
upon which, such securities were issued or are issuable, were at no time
held by any Affiliate of the Company, and all Warrants are exercised by
"cashless exercise" as provided in Section 2(c) of each of the Warrants),
as reasonably determined by the Company, upon the advice of counsel to
the Company.
"Registration Statement" means any registration statement required
to be filed hereunder pursuant to Section 2(a) and any additional
registration statements contemplated by Section 3(c), including (in each
case) the Prospectus, amendments and supplements to any such registration
statement or Prospectus, including pre- and post-effective amendments,
all exhibits thereto, and all material incorporated by reference or
deemed to be incorporated by reference in any such registration
statement.
"Rule 415" means Rule 415 promulgated by the Commission pursuant
to the Securities Act, as such Rule may be amended or interpreted from
time to time, or any similar rule or regulation hereafter adopted by the
Commission having substantially the same purpose and effect as such Rule.
"Rule 424" means Rule 424 promulgated by the Commission pursuant to
the Securities Act, as such Rule may be amended or interpreted from time
to time, or any similar rule or regulation hereafter adopted by the
Commission having substantially the same purpose and effect as such Rule.
"Selling Stockholder Questionnaire" shall have the meaning set
forth in Section 3(a).
"SEC Guidance" means (i) any publicly-available written or oral
guidance of the Commission staff, or any comments, requirements or
requests of the Commission staff and (ii) the Securities Act.
2. Shelf Registration.
(a) On or prior to each Filing Date, the Company shall prepare and file with
the Commission a Registration Statement covering the resale of all or
such maximum portion of the Registrable Securities as permitted by SEC
Guidance
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(provided that, the Company shall use diligent efforts to advocate with
the Commission for the registration of all of the Registrable Securities
in accordance with the SEC Guidance, including without limitation, the
Manual of Publicly Available Telephone Interpretations D.29) that are not
then registered on an effective Registration Statement for an offering to
be made on a continuous basis pursuant to Rule 415. Each Registration
Statement filed hereunder shall be on Form S-3 (except if the Company is
not then eligible to register for resale the Registrable Securities on
Form S-3, in which case such registration shall be on another appropriate
form in accordance herewith) and shall contain (unless otherwise directed
by at least an 85% majority in interest of the Holders) substantially the
"Plan of Distribution" attached hereto as Annex A. Subject to the terms
of this Agreement, the Company shall use its best efforts to cause a
Registration Statement filed hereunder to be declared effective under the
Securities Act as promptly as possible after the filing thereof, but in
any event prior to the applicable Effectiveness Date, and shall use its
best efforts to keep such Registration Statement continuously effective
under the Securities Act until all Registrable Securities covered by such
Registration Statement (i) have been sold, thereunder or pursuant to Rule
144, or (ii) (A) may be sold without volume or manner-of-sale
restrictions pursuant to Rule 144 and (B) (I) may be sold without the
requirement for the Company to be in compliance with the current public
information requirement under Rule 144 or (II) the Company is in
compliance with the current public information requirement under Rule
144, as determined by the counsel to the Company pursuant to a written
opinion letter to such effect, addressed and acceptable to the Transfer
Agent and the affected Holders (the "Effectiveness Period"). The Company
shall telephonically request effectiveness of a Registration Statement as
of 5:00 p.m. New York City time on a Trading Day. The Company shall
immediately notify the Holders via facsimile or by e-mail of the
effectiveness of a Registration Statement on the same Trading Day that
the Company telephonically confirms effectiveness with the Commission,
which shall be the date requested for effectiveness of such Registration
Statement. The Company shall, by 9:30 a.m. New York City time on the
Trading Day after the effective date of such Registration Statement, file
a final Prospectus with the Commission as required by Rule 424. Failure
to so notify the Holder within one (1) Trading Day of such notification
of effectiveness or failure to file a final Prospectus as foresaid shall
be deemed an Event under Section 2(b). Notwithstanding any other
provision of this Agreement and subject to the payment of liquidated
damages pursuant to Section 2(b), if any SEC Guidance sets forth a
limitation on the number of Registrable Securities permitted to be
registered on a particular Registration Statement (and notwithstanding
that the Company used diligent efforts to advocate with the Commission
for the registration of all or a greater portion of Registrable
Securities), unless otherwise directed in writing by a Holder as to its
Registrable Securities, the number of Registrable Securities to be
registered on such Registration Statement will first be reduced by
Registrable Securities represented by Warrant Shares (applied, in the
case that some Warrant Shares may be registered, to the Holders on a pro
rata basis based on the total number of unregistered Warrant Shares held
by such
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Holders); provided, however, that, prior to any reduction in the number
of Registrable Securities included in a Registration Statement as set
forth in this sentence, all shares of Common Stock set forth on Schedule
6(b) hereto shall be reduced first. In the event of a cutback hereunder,
the Company shall give the Holder at least two (2) Trading Days prior
written notice along with the calculations as to such Holder's allotment.
(b) If: (i) the Initial Registration Statement is not filed on or prior to
its Filing Date (if the Company files the Initial Registration Statement
without affording the Holders the opportunity to review and comment on
the same as required by Section 3(a) herein, the Company shall be deemed
to have not satisfied this clause (i)), or (ii) the Company fails to file
with the Commission a request for acceleration of a Registration
Statement in accordance with Rule 461 promulgated by the Commission
pursuant to the Securities Act, within five Trading Days of the date that
the Company is notified (orally or in writing, whichever is earlier) by
the Commission that such Registration Statement will not be "reviewed" or
will not be subject to further review, or (iii) prior to the effective
date of a Registration Statement, the Company fails to file a pre-
effective amendment and otherwise respond in writing to comments made by
the Commission in respect of such Registration Statement within twenty
(20) calendar days after the receipt of comments by or notice from the
Commission that such amendment is required in order for such Registration
Statement to be declared effective, or (iv) as to, in the aggregate among
all Holders on a pro-rata basis based on their purchase of the Securities
pursuant to the Purchase Agreement, a Registration Statement registering
for resale all of the Initial Shares is not declared effective by the
Commission by the Effectiveness Date of the Initial Registration
Statement, or (v) after the effective date of a Registration Statement,
such Registration Statement ceases for any reason to remain continuously
effective as to all Registrable Securities included in such Registration
Statement, or the Holders are otherwise not permitted to utilize the
Prospectus therein to resell such Registrable Securities, for more than
ten (10) consecutive calendar days or more than an aggregate of fifteen
(15) calendar days (which need not be consecutive calendar days) during
any 12-month period, or (vi) the Company shall fail for any reason to
satisfy the current public information requirement under Rule 144 as to
the applicable Registrable Securities (any such failure or breach being
referred to as an "Event", and for purposes of clauses (i), (iv), and
(vi), the date on which such Event occurs, and for purpose of clause (ii)
the date on which such five (5) Trading Day period is exceeded, and for
purpose of clause (iii) the date which such 20 calendar day period is
exceeded, and for purpose of clause (v) the date on which such ten (10)
or fifteen (15) calendar day period, as applicable, is exceeded being
referred to as "Event Date"), then, in addition to any other rights the
Holders may have hereunder or under applicable law, on each 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 each Holder an amount
in cash, as partial liquidated damages and not as a penalty, equal to 1%
of the
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aggregate purchase price paid by such Holder pursuant to the Purchase
Agreement for any unregistered Registrable Securities then held by such
Holder. The parties agree that (1) the Company shall not be liable for
liquidated damages under this Agreement with respect to any unexercised
Warrants or Warrant Shares and (2) the maximum aggregate liquidated
damages payable to a Holder under this Agreement shall be 3% of the
aggregate Subscription Amount paid by such Holder pursuant to the
Purchase Agreement. If the Company fails to pay any partial liquidated
damages pursuant to this Section in full within seven days after the date
payable, the Company will pay interest thereon at a rate of 18% per annum
(or such lesser maximum amount that is permitted to be paid by applicable
law) to the Holder, accruing daily from the date such partial liquidated
damages are due until such amounts, plus all such interest thereon, are
paid in full. 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.
3. Registration Procedures.
In connection with the Company's registration obligations
hereunder, the Company shall:
(a)Not less than two (2) Business Days prior to the filing of each
Registration Statement and not less than one (1) Business Day
prior to the filing of any related Prospectus or any pre-
effective amendment or supplement thereto (including any document
that would be incorporated or deemed to be incorporated therein
by reference), the Company shall (i) furnish to each Holder
copies of all such documents proposed to be filed, which
documents (other than those incorporated or deemed to be
incorporated by reference) will be subject to the review of such
Holders, provided that as to any Prospectus supplement or post-
effective amendment to a Registration Statement, the Company
shall only be required to provide the Holders with copies of such
documents prior to the filing thereof to the extent that such
Prospectus supplement or post-effective amendment contains
changes to the Seller Stockholder or Plan of Distribution
sections (in which case, the Company shall only be required to
furnish such sections), and (ii) cause its officers and
directors, counsel and independent registered public accountants
to respond to such inquiries as shall be necessary, in the
reasonable opinion of respective counsel to each Holder, to
conduct a reasonable investigation within the meaning of the
Securities Act. The Company shall not file a Registration
Statement or any such Prospectus or any amendments or supplements
thereto to which the Holders of a majority of the Registrable
Securities shall reasonably object in good faith, provided that,
the Company is notified of such objection in writing no later
than five (5) Trading Days after the Holders have been so
furnished copies of a Registration Statement or one (1) Trading
Day after the Holders have been so furnished copies of any
related Prospectus or amendments or supplements thereto. Each
Holder agrees to furnish to the Company a completed questionnaire
in the form attached to this Agreement as Annex B (a "Selling
Stockholder Questionnaire") on a date that is not less than
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two (2) Trading Days prior to the Filing Date or by the end of
the fourth (4[th]) Trading Day following the date on which such
Holder receives draft materials in accordance with this Section.
(b)(i) Prepare and file with the Commission such amendments,
including post-effective amendments, to a Registration Statement
and the Prospectus used in connection therewith as may be
necessary to keep a Registration Statement continuously effective
as to the applicable Registrable Securities for the 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 (subject to the terms of this Agreement),
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 a
Registration Statement or any amendment thereto and provide as
promptly as reasonably possible to the Holders true and complete
copies of all correspondence from and to the Commission relating
to a Registration Statement (provided that, the Company may
excise any information contained therein which would constitute
material non-public information as to any Holder which has not
executed a confidentiality agreement with respect thereto with
the Company), and (iv) comply in all material respects with the
applicable provisions of the Securities Act and the Exchange Act
with respect to the disposition of all Registrable Securities
covered by a Registration Statement during the applicable period
in accordance (subject to the terms of this Agreement) with the
intended methods of disposition by the Holders thereof set forth
in such Registration Statement as so amended or in such
Prospectus as so supplemented.
(c)If during the Effectiveness Period, the number of Registrable
Securities at any time exceeds 100% of the number of shares of
Common Stock then registered in a Registration Statement, then
the Company shall file as soon as reasonably practicable, but in
any case prior to the applicable Filing Date, an additional
Registration Statement covering the resale by the Holders of not
less than the number of such Registrable Securities.
(d)Notify the Holders of Registrable Securities to be sold (which
notice shall, pursuant to clauses (iii) through (vi) hereof, be
accompanied by an instruction to suspend the use of the
Prospectus until the requisite changes have been made) as
promptly as reasonably possible (and, in the case of (i)(A)
below, not less than one (1) Trading Day prior to such filing)
and (if requested by any such Person) confirm such notice in
writing no later than one (1) Trading Day following the day
(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, and (C) with respect to a Registration Statement or
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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 or any other
federal or state governmental authority 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, (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 a
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 a Registration
Statement, Prospectus or other documents so that, in the case of
a 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 and (vi)
of the occurrence or existence of any pending corporate
development with respect to the Company that the Company believes
may be material and that, in the determination of the Company,
makes it not in the best interest of the Company to allow
continued availability of a Registration Statement or Prospectus,
provided that, any and all of such information shall remain
confidential to each Holder until such information otherwise
becomes public, unless disclosure by a Holder is required by law;
provided, further, that notwithstanding each Holder's agreement
to keep such information confidential, each such Holder makes no
acknowledgement that any such information is material, non-public
information.
(e)Use its best efforts to avoid the issuance of, or, if issued,
obtain the withdrawal of (i) any order stopping or 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.
(f)Furnish to each Holder, without charge, at least one conformed
copy of each such Registration Statement and each amendment
thereto, including financial statements and schedules, all
documents incorporated or deemed to be incorporated therein by
reference to the extent requested by such Person, and all
exhibits to the extent requested by such Person (including those
previously furnished or incorporated by reference) promptly after
the filing of such documents with the Commission; provided, that
any such item which is available on the XXXXX system (or
successor thereto) need not be furnished in physical form.
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(g)Subject to the terms of this Agreement, the Company hereby
consents to the use of such Prospectus and each amendment or
supplement thereto by each of the selling Holders in connection
with the offering and sale of the Registrable Securities covered
by such Prospectus and any amendment or supplement thereto,
except after the giving of any notice pursuant to Section 3(d).
(h) The Company shall cooperate with any broker-dealer through which
a Holder proposes to resell its Registrable Securities in
effecting a filing with the FINRA Corporate Financing Department
pursuant to FINRA Rule 5110, as requested by any such Holder, and
the Company shall pay the filing fee required by such filing
within two (2) Business Days of request therefor.
(i)Prior to any resale of Registrable Securities by a Holder, use
its commercially reasonable efforts to register or qualify or
cooperate with the selling Holders in connection with the
registration or qualification (or exemption from the Registration
or qualification) of such Registrable Securities for the resale
by the Holder under the securities or Blue Sky laws of such
jurisdictions within the United States as any Holder reasonably
requests in writing, to keep each registration or qualification
(or exemption therefrom) effective during the Effectiveness
Period and to do any and all other acts or things reasonably
necessary to enable the disposition in such jurisdictions of the
Registrable Securities covered by each Registration Statement;
provided, that, the Company shall not be required to qualify
generally to do business in any jurisdiction where it is not then
so qualified, subject the Company to any material tax in any such
jurisdiction where it is not then so subject or file a general
consent to service of process in any such jurisdiction.
(j)If requested by a Holder, cooperate with such Holder to
facilitate the timely preparation and delivery of certificates
representing Registrable Securities to be delivered to a
transferee pursuant to a Registration Statement, 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 any such Holder may request.
(k)Upon the occurrence of any event contemplated by Section 3(d), as
promptly as reasonably possible under the circumstances taking
into account the Company's good faith assessment of any adverse
consequences to the Company and its stockholders of the premature
disclosure of such event, prepare a supplement or amendment,
including a post-effective amendment, to a Registration Statement
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, neither a Registration Statement nor such 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,
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not misleading. If the Company notifies the Holders in
accordance with clauses (iii) through (vi) of Section 3(d) above
to suspend the use of any Prospectus until the requisite changes
to such Prospectus have been made, then the Holders shall suspend
use of such Prospectus. The Company will use its best efforts to
ensure that the use of the Prospectus may be resumed as promptly
as is practicable. The Company shall be entitled to exercise its
right under this Section 3(k) to suspend the availability of a
Registration Statement and Prospectus, subject to the payment of
partial liquidated damages otherwise required pursuant to Section
2(b), for a period not to exceed 60 calendar days (which need not
be consecutive days) in any 12-month period.
(l)Comply with all applicable rules and regulations of the
Commission.
(m)The Company may require each selling Holder to furnish to the
Company a certified statement as to the number of shares of
Common Stock beneficially owned by such Holder and, if required
by the Commission, the natural persons thereof that have voting
and dispositive control over the shares. During any periods that
the Company is unable to meet its obligations hereunder with
respect to the registration of the Registrable Securities solely
because any Holder fails to furnish such information within three
Trading Days of the Company's request, any liquidated damages
that are accruing at such time as to such Holder only shall be
tolled and any Event that may otherwise occur solely because of
such delay shall be suspended as to such Holder only, until such
information is delivered to the Company.
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 of the Company's counsel and
independent registered public accountants) (A) with respect to filings made with
the Commission, (B) with respect to filings required to be made with any Trading
Market on which the Common Stock is then listed for trading, (C) in compliance
with applicable state securities or Blue Sky laws reasonably agreed to by the
Company in writing (including, without limitation, fees and disbursements of
counsel for the Company in connection with Blue Sky qualifications or exemptions
of the Registrable Securities) and (D) if not previously paid by the Company in
connection with an Issuer Filing, with respect to any filing that may be
required to be made by any broker through which a Holder intends to make sales
of Registrable Securities with FINRA pursuant to FINRA Rule 5110, so long as the
broker is receiving no more than a customary brokerage commission in connection
with such sale, (ii) printing expenses (including, without limitation, expenses
of printing certificates for Registrable Securities), (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
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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. In no event shall the Company be
responsible for any broker or similar commissions of any Holder or, except to
the extent provided for in the Transaction Documents, any legal fees or other
costs of the Holders.
5. Indemnification.
(a) Indemnification by the Company. The Company shall, notwithstanding any
termination of this Agreement, indemnify and hold harmless each Holder,
the officers, directors, members, partners, agents, brokers (including
brokers who offer and sell Registrable Securities as principal as a
result of a pledge or any failure to perform under a margin call of
Common Stock), investment advisors and employees (and any other Persons
with a functionally equivalent role of a Person holding such titles,
notwithstanding a lack of such title or any other title) of each of them,
each Person who controls any such Holder (within the meaning of Section
15 of the Securities Act or Section 20 of the Exchange Act) and the
officers, directors, members, stockholders, partners, agents and
employees (and any other Persons with a functionally equivalent role of a
Person holding such titles, notwithstanding a lack of such title or any
other title) 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
attorneys' fees) and expenses (collectively, "Losses"), as incurred,
arising out of or relating to (1) any untrue or alleged untrue statement
of a material fact contained in a 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 supplement thereto, in light of the circumstances under which they
were made) not misleading or (2) any violation or alleged violation by
the Company of the Securities Act, the Exchange Act or any state
securities law, or any rule or regulation thereunder, in connection with
the performance of its obligations under this Agreement, except to the
extent, but only to the extent, that (i) such untrue statements or
omissions are based solely upon information regarding such 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 a Registration Statement, such Prospectus or in any
amendment or supplement thereto (it being understood that the Holder has
approved Annex A hereto for this purpose) or (ii) in the case of an
occurrence of an event of the type specified in Section 3(d)(iii)-(vi),
the use by
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such Holder of an outdated, defective or otherwise unavailable Prospectus
after the Company has notified such Holder in writing that the Prospectus
is outdated, defective or otherwise unavailable for use by such Holder
and prior to the receipt by such Holder of the Advice contemplated in
Section 6(d). The Company shall notify the Holders promptly of the
institution, threat or assertion of any Proceeding arising from or in
connection with the transactions contemplated by this Agreement of which
the Company is aware.
(b) Indemnification by Holders. Each Holder shall, severally and not jointly,
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, to the extent arising 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 or alleged
untrue statement of a material fact contained in any Registration
Statement, any 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 not misleading (i) to
the extent, but only to the extent, that such untrue statement or
omission is contained in any information so furnished in writing by such
Holder to the Company specifically for inclusion in such Registration
Statement or such Prospectus or (ii) to the extent that such information
relates to 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 a Registration Statement (it being understood
that the Holder has approved Annex A hereto for this purpose), such
Prospectus or in any amendment or supplement thereto or (ii) in the case
of an occurrence of an event of the type specified in Section 3(d)(iii)-
(vi), the use by such Holder of an outdated, defective or otherwise
unavailable Prospectus after the Company has notified such Holder in
writing that the Prospectus is outdated, defective or otherwise
unavailable for use by such Holder and prior to the receipt by such
Holder of the Advice contemplated in Section 6(d). In no event shall the
liability of any selling Holder under this Section 5(b) 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.
(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 have the right to 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
- 12 -
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 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 counsel to
the Indemnified Party shall reasonably believe that a material 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 the reasonable fees and expenses of no more than one
separate 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 or delayed. 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.
Subject to the terms of this Agreement, all reasonable
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
ten Trading Days of written notice thereof to the Indemnifying Party;
provided, that, the Indemnified Party shall promptly reimburse the
Indemnifying Party for that portion of such fees and expenses applicable
to such actions for which such Indemnified Party is judicially determined
not to be entitled to indemnification hereunder.
(d) Contribution. If the indemnification under Section 5(a) or 5(b) is
unavailable to an Indemnified Party or insufficient to hold an
Indemnified Party harmless for any Losses, then each Indemnifying Party
shall contribute to the amount paid or payable by such Indemnified Party,
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
- 13 -
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 this Agreement, any reasonable attorneys' or other 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 pursuant to this
Section 5(d), in the aggregate, any amount in excess of the amount by
which the net 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.
6. Miscellaneous.
(a)Remedies. In the event of a breach by the Company or by a Holder
of any of their respective obligations under this Agreement, each
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, shall be entitled to
specific performance of its rights under this Agreement. Each of
the Company and each Holder agrees 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 not assert or shall waive the defense that a remedy at law
would be adequate.
(b)No Piggyback on Registrations; Prohibition on Filing Other
Registration Statements. Other than in connection with
transactions contemplated by clause (d) under Exempt Issuance,
neither the Company nor any of its security holders (other than
the Holders in such capacity pursuant hereto) may include
securities of the Company in any Registration Statements other
than the Registrable Securities. The Company shall not file any
other registration statements until all Registrable Securities
are registered pursuant to
- 14 -
a Registration Statement that is declared effective by the
Commission, provided that this Section 6(b) shall not prohibit
the Company from filing amendments to registration statements
filed prior to the date of this Agreement.
(c)Compliance. Each 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 a Registration Statement.
(d)Discontinued Disposition. By its acquisition of Registrable
Securities, each Holder agrees that, upon receipt of a notice
from the Company of the occurrence of any event of the kind
described in Section 3(d)(iii) through (vi), such Holder will
forthwith discontinue disposition of such Registrable Securities
under a Registration Statement until it is advised in writing
(the "Advice") by the Company that the use of the applicable
Prospectus (as it may have been supplemented or amended) may be
resumed. The Company will use its best efforts to ensure that
the use of the Prospectus may be resumed as promptly as is
practicable. The Company agrees and acknowledges that any
periods during which the Holder is required to discontinue the
disposition of the Registrable Securities hereunder shall be
subject to the provisions of Section 2(b).
(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 the Company's stock
option or other employee benefit plans, then the Company shall
deliver to each Holder a written notice of such determination
and, if within fifteen days after the date of the delivery of
such notice, any such 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; provided, however, that the Company shall not be
required to register any Registrable Securities pursuant to this
Section 6(e) that are eligible for resale pursuant to Rule 144
promulgated by the Commission pursuant to the Securities Act or
that are the subject of a then effective Registration Statement.
(f)Amendments and Waivers. The provisions of this Agreement,
including the provisions of this sentence, 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 Holders of
67% or more of the then outstanding Registrable Securities
(including, for this purpose any Registrable Securities issuable
upon exercise or conversion of any Security). If a Registration
Statement does not register all of the Registrable Securities
pursuant to a waiver or amendment done in compliance with the
previous sentence, then the number of Registrable Securities to
be registered for each Holder shall be reduced pro rata among all
Holders and each Holder shall have the right to designate which
of its Registrable
- 15 -
Securities shall be omitted from such Registration Statement.
Notwithstanding the foregoing, a waiver or consent to depart from
the provisions hereof with respect to a matter that relates
exclusively to the rights of a Holder or some Holders and that
does not directly or indirectly affect the rights of other
Holders may be given by such Holder or Holders of all of the
Registrable Securities to which such waiver or consent relates;
provided, however, that the provisions of this sentence may not
be amended, modified, or supplemented except in accordance with
the provisions of the first sentence of this Section 6(f).
(g)Notices. Any and all notices or other communications or
deliveries required or permitted to be provided hereunder shall
be delivered as set forth in the Purchase Agreement.
(h)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 each
Holder. The Company may not assign (except by merger) its rights
or obligations hereunder without the prior written consent of all
of the Holders of the then outstanding Registrable Securities.
Each Holder may assign their respective rights hereunder in the
manner and to the Persons as permitted under Section 5.7 of the
Purchase Agreement.
(i)No Inconsistent Agreements. Neither the Company nor any of its
Subsidiaries has entered, as of the date hereof, nor shall the
Company or any of its Subsidiaries, on or after the date of this
Agreement, enter into any agreement with respect to its
securities, that would have the effect of impairing the rights
granted to the Holders in this Agreement or otherwise conflicts
with the provisions hereof. Neither the Company nor any of its
Subsidiaries has previously entered into any agreement granting
any registration rights with respect to any of its securities to
any Person that have not been satisfied in full.
(j)Execution and Counterparts. This Agreement may be executed in two
or more counterparts, all of which when taken together shall be
considered one and the same agreement and shall become effective
when counterparts have been signed by each party and delivered to
the other party, it being understood that both parties need not
sign the same counterpart. In the event that any signature is
delivered by facsimile transmission or by e-mail delivery of a
".pdf" format data file, such signature shall create a valid and
binding obligation of the party executing (or on whose behalf
such signature is executed) with the same force and effect as if
such facsimile or ".pdf" signature page were an original thereof.
(k)Governing Law. All questions concerning the construction,
validity, enforcement and interpretation of this Agreement shall
be determined in accordance with the provisions of the Purchase
Agreement.
(l)Cumulative Remedies. The remedies provided herein are cumulative
and not exclusive of any other remedies provided by law.
- 16 -
(m)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 commercially 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.
(n)Headings. The headings in this Agreement are for convenience
only, do not constitute a part of the Agreement and shall not be
deemed to limit or affect any of the provisions hereof.
(o)Independent Nature of Holders' Obligations and Rights. The
obligations of each Holder hereunder are several and not joint
with the obligations of any other Holder hereunder, and no Holder
shall be responsible in any way for the performance of the
obligations of any other Holder hereunder. Nothing contained
herein or in any other agreement or document delivered at any
closing, and no action taken by any Holder pursuant hereto or
thereto, shall be deemed to constitute the Holders as a
partnership, an association, a joint venture or any other kind of
entity, or create a presumption that the Holders are in any way
acting in concert with respect to such obligations or the
transactions contemplated by this Agreement. Each Holder shall be
entitled to protect and enforce its rights, including without
limitation the rights arising out of this Agreement, and it shall
not be necessary for any other Holder to be joined as an
additional party in any proceeding for such purpose.
********************
(Signature Pages Follow)
- 17 -
IN WITNESS WHEREOF, the parties have executed this Registration
Rights Agreement as of the date first written above.
WORLDWIDE ENERGY AND MANUFACTURING USA, INC.
By:__________________________________________
Name:
Title:
[SIGNATURE PAGE OF HOLDERS FOLLOWS]
- 18 -
[SIGNATURE PAGE OF HOLDERS TO WEMU RRA]
Name of Holder: __________________________
Signature of Authorized Signatory of Holder: __________________________
Name of Authorized Signatory: _________________________
Title of Authorized Signatory: __________________________
[SIGNATURE PAGES CONTINUE]
- 19 -
ANNEX A
Plan of Distribution
Each Selling Stockholder (the "Selling Stockholders") of the common stock
and any of their pledgees, assignees and successors-in-interest may, from time
to time, sell any or all of their shares of common stock covered hereby on the
OTC Bulletin Board or any other stock exchange, market or trading facility on
which the shares are traded or in private transactions. These sales may be at
fixed or negotiated prices. A Selling Stockholder may use any one or more of
the following methods when selling shares:
{circle}ordinary brokerage transactions and transactions in which the
broker-dealer solicits purchasers;
{circle}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;
{circle}purchases by a broker-dealer as principal and resale by the
broker-dealer for its account;
{circle}an exchange distribution in accordance with the rules of the
applicable exchange;
{circle}privately negotiated transactions;
{circle}settlement of short sales entered into after the effective
date of the registration statement of which this prospectus is a
part;
{circle}in transactions through broker-dealers that agree with the
Selling Stockholders to sell a specified number of such shares at a
stipulated price per share;
{circle}through the writing or settlement of options or other hedging
transactions, whether through an options exchange or otherwise;
{circle}a combination of any such methods of sale; or
{circle}any other method permitted pursuant to applicable law.
The Selling Stockholders may also sell shares under Rule 144 under the
Securities Act of 1933, as amended (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
- 20 -
purchaser of shares, from the purchaser) in amounts to be negotiated, but,
except as set forth in a supplement to this Prospectus, in the case of an agency
transaction not in excess of a customary brokerage commission in compliance with
FINRA Rule 2440; and in the case of a principal transaction a markup or markdown
in compliance with FINRA IM-2440.
In connection with the sale of the common stock or interests therein, the
Selling Stockholders may enter into hedging transactions with broker-dealers or
other financial institutions, which may in turn engage in short sales of the
common stock in the course of hedging the positions they assume. The Selling
Stockholders may also sell shares of the common stock short and deliver these
securities to close out their short positions, or loan or pledge the common
stock to broker-dealers that in turn may sell these securities. The Selling
Stockholders may also enter into option or other transactions with broker-
dealers or other financial institutions or create one or more derivative
securities which require the delivery to such broker-dealer or other financial
institution of shares offered by this prospectus, which shares such broker-
dealer or other financial institution may resell pursuant to this prospectus (as
supplemented or amended to reflect such transaction).
The 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. Each Selling Stockholder has
informed the Company that it does not have any written or oral agreement or
understanding, directly or indirectly, with any person to distribute the Common
Stock. In no event shall any broker-dealer receive fees, commissions and markups
which, in the aggregate, would exceed eight percent (8%).
The Company is required to pay certain fees and expenses incurred by the
Company incident to the registration of the shares. The Company has agreed to
indemnify the Selling Stockholders against certain losses, claims, damages and
liabilities, including liabilities under the Securities Act.
Because Selling Stockholders may be deemed to be "underwriters" within
the meaning of the Securities Act, they will be subject to the prospectus
delivery requirements of the Securities Act including Rule 172 thereunder. The
Selling Stockholders have advised us that there is no underwriter or
coordinating broker acting in connection with the proposed sale of the resale
shares by the Selling Stockholders.
We agreed to keep this prospectus effective until the earlier of (i) the
date on which the shares may be resold by the Selling Stockholders without
registration and without regard to any volume or manner-of-sale limitations by
reason of Rule 144, without the requirement for the Company to be in compliance
with the current public information under Rule 144 under the Securities Act or
any other rule of similar effect or (ii) all of the shares have been sold
pursuant to this prospectus or Rule 144 under the Securities Act or any other
rule of similar effect. The resale shares will be sold only through registered
or licensed brokers or dealers if required under applicable state
- 21 -
securities laws. In addition, in certain states, the resale shares of Common
Stock covered hereby may not be sold unless they have been registered or
qualified for sale in the applicable state or an exemption from the registration
or qualification requirement is available and is complied with.
Under applicable rules and regulations under the Exchange Act, any person
engaged in the distribution of the resale shares may not simultaneously engage
in market making activities with respect to the common stock for the applicable
restricted period, as defined in Regulation M, prior to the commencement of the
distribution. In addition, the Selling Stockholders will be subject to
applicable provisions of the Exchange Act and the rules and regulations
thereunder, including Regulation M, which may limit the timing of purchases and
sales of shares of the common stock by the Selling Stockholders or any other
person. We will make copies of this prospectus available to the Selling
Stockholders and have informed them of the need to deliver a copy of this
prospectus to each purchaser at or prior to the time of the sale (including by
compliance with Rule 172 under the Securities Act).
- 22 -
ANNEX B
WORLDWIDE ENERGY AND MANUFACTURING USA, INC.
SELLING STOCKHOLDER NOTICE AND QUESTIONNAIRE
The undersigned beneficial owner of common stock (the "Registrable
Securities") of Worldwide Energy and Manufacturing USA, Inc., a Colorado
corporation (the "Company"), understands that the Company has filed or intends
to file with the Securities and Exchange Commission (the "Commission") a
registration statement (the "Registration Statement") for the registration and
resale under Rule 415 of the Securities Act of 1933, as amended (the "Securities
Act"), of the Registrable Securities, in accordance with the terms of the
Registration Rights Agreement (the "Registration Rights Agreement") to which
this document is annexed. A copy of the Registration Rights Agreement is
available from the Company upon request at the address set forth below. All
capitalized terms not otherwise defined herein shall have the meanings ascribed
thereto in the Registration Rights Agreement.
Certain legal consequences arise from being named as a selling
stockholder in the 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 stockholder in the Registration Statement
and the related prospectus.
NOTICE
The undersigned beneficial owner (the "Selling Stockholder") of
Registrable Securities hereby elects to include the Registrable Securities owned
by it in the Registration Statement.
- 23 -
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 Stockholder
**
(b) Full Legal Name of Registered Holder (if not the same as (a) above)
through which Registrable Securities 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 this Questionnaire):
**
2. ADDRESS FOR NOTICES TO SELLING STOCKHOLDER:
-----------------
-----------------
-----------------
Telephone:
Fax:
Contact Person:
3. BROKER-DEALER STATUS:
(a) Are you a broker-dealer?
Yes No
(b) If "yes" to Section 3(a), did you receive your Registrable
Securities as compensation for investment banking services to the
Company?
Yes No
Note: If "no" to Section 3(b), the Commission's staff has indicated that
you should be identified as an underwriter in the Registration
Statement.
- 24 -
(c) Are you an affiliate of a broker-dealer?
Yes No
(d) If you are an affiliate of a broker-dealer, do you certify that you
purchased 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" to Section 3(d), the Commission's staff has indicated that
you should be identified as an underwriter in the Registration
Statement.
4. BENEFICIAL OWNERSHIP OF SECURITIES OF THE COMPANY OWNED BY THE SELLING
STOCKHOLDER.
Except as set forth below in this Item 4, the undersigned is not the
beneficial or registered owner of any securities of the Company other
than the securities issuable pursuant to the Purchase Agreement.
(a) Type and Amount of other securities beneficially owned by the
Selling Stockholder:
**
**
- 25 -
5. 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:
**
**
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 Registration Statement remains effective.
By signing below, the undersigned consents to the disclosure of the
information contained herein in its answers to Items 1 through 5 and the
inclusion of such information in the Registration Statement and the related
prospectus and any amendments or supplements thereto. 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 and any amendments or supplements thereto.
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.
Date: Beneficial Owner:
By:
Name:
Title:
PLEASE FAX A COPY (OR EMAIL A .PDF COPY) OF THE COMPLETED AND EXECUTED NOTICE
AND QUESTIONNAIRE, AND RETURN THE ORIGINAL BY OVERNIGHT MAIL, TO: XXXX XXXXXXXX-
XXXXXXX, ESQ. SICHENZIA XXXX XXXXXXXX XXXXXXX LLP, 00 XXXXXXXX, 00[XX] XXXXX,
XXX XXXX, XX 00000.
- 26 -
