Registration Statement Related to the Subscription Agreement-Share Offering Reference Date: May 1, 2007
07
05
01--Power of the Dream Ventures, Inc.
Registration
Statement Related to the
Subscription
Agreement-Share Offering
Reference
Date: May 1, 2007
REGISTRATION
RIGHTS AGREEMENT, entered into as of the Effective Date (as defined
below), by and between POWER
OF THE DREAM VENTURES, INC., a Delaware corporation, and the
Person named on the signature page hereof (the
“Purchaser”).
In
consideration of the mutual promises herein contained and other consideration,
the receipt and adequacy of which is hereby acknowledged, the parties hereto
hereby agree as follows:
SECTION
1
CERTAIN
DEFINITIONS
All
capitalized terms used herein and not otherwise defined shall have the meaning
ascribed thereto to in the Subscription Agreement.
As
used
in this Agreement, the following terms shall have the following
meanings:
“Advice”
has the meaning set forth in Section 6.6
hereof.
“Affiliate”
means, with respect to any Person, any other Person that directly or indirectly
controls or is controlled by or under common control with such
Person. For the purposes of this definition, "control," when used
with respect to any Person, means the possession, direct or indirect, of
the
power to direct or cause the direction of the management and policies of
such
Person, whether through the ownership of voting securities, by contract or
otherwise; and the terms of "affiliated," "controlling" and "controlled"
have
meanings correlative to the foregoing.
“Agreement”
means this Registration Rights Agreement.
“Business
Day” means any day except Saturday, Sunday and any day which shall be
a
legal holiday or a day on which banking institutions in the State of New
York
generally are closed.
“Commission”
means the Securities and Exchange Commission.
“Common
Shares” means shares of the Company's common stock, $0.001 par value,
or such securities that such stock shall hereafter be reclassified
into.
“Company”
means Power of the Dream Ventures, Inc.
“Effectiveness
Date” means the date that the Registration Statement is declared
effective by the Commission.
“Effectiveness
Period” has the meaning set forth in Section
2.1 hereof.
“Exchange
Act” means the Securities Exchange Act of 1934, as
amended.
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Registration
Statement Related to the
Subscription
Agreement-Share Offering
Reference
Date: May 1, 2007
“Filing
Date” has the meaning ascribed thereto in Section
2.1 hereof.
“Holder”
or “Holders” means the holder or holders, as the case may be,
from time to time, of Registrable Securities.
“Indemnified
Party” has the meaning set forth in Section 5.3
hereof.
“Indemnifying
Party” has the meaning set forth in Section 5.3
hereof.
“Offering”
means the offering of the Offered Shares in accordance with the Subscription
Agreement.
“Person”
means an individual or a corporation, partnership, trust, incorporated or
unincorporated association, joint venture, limited liability company, joint
stock company, government (or an agency or political subdivision thereof)
or
other entity of any kind.
“Plan
of Distribution” has the meaning set forth in Section
2.1 hereof.
“Proceeding”
means an action, claim, suit, investigation or proceeding (including, without
limitation, an investigation or partial proceeding, such as a deposition),
whether commenced or threatened.
“Prospectus”
means the prospectus included in the Registration Statement (including, without
limitation, a prospectus that includes any information previously omitted
from a
prospectus filed as part of an effective Registration Statement in reliance
upon
Rule 430A promulgated under the Securities Act), as amended or supplemented
by
any prospectus supplement, with respect to the terms of the offering of any
portion of the Registrable Securities covered by the 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.
“Purchaser”
has the meaning set forth in the recitals to this Agreement.
“Registrable
Securities” means (i) Offered Shares, (ii) the Common Shares issuable
upon exercise of any issued and outstanding warrants to purchase Common Shares,
(iii) issued and outstanding Common Shares deemed
“Restricted
Shares,” as that term is defined in the rules and regulations
promulgated under the Securities Act and not otherwise transferable in their
entirety by the holder thereof pursuant to Rule 144. Shares shall
cease to be Registrable Securities when they have (a) been effectively
registered under the Securities Act and disposed of in accordance with the
Registration Statement covering them, (b) been sold to the public in accordance
with Rule 144, (c) otherwise transferred and new certificates for them not
bearing a Securities Act restrictive legend have been delivered by the Company,
or (d) as to any Holder, become eligible to be sold in a single sale in
accordance with Rule 144. Notwithstanding anything herein to the
contrary any shares owned by any Holder which may be sold pursuant to 144(k),
as
of the date of the filing of the Registration Statement, shall not be included
in any such Registration Statement.
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Registration
Statement Related to the
Subscription
Agreement-Share Offering
Reference
Date: May 1, 2007
“Registration
Statement” means the registration statements required to be filed
hereunder with respect to the Registrable Securities including (in each case)
the Prospectus, amendments and supplements to 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 such registration statement.
“Restricted
Shares” has the meaning ascribed thereto in the definition of
Registrable Securities in this Section 1
hereof.
“Rule
144” means Rule 144 promulgated by the Commission pursuant to the
Securities Act as such Rule may be amended from time to time, or any similar
rule or regulation hereafter adopted by the Commission having substantially
the
same effect as such Rule.
“Rule
415” means Rule 415 promulgated by the Commission pursuant to the
Securities Act, as such Rule may be amended from time to time, or any similar
rule or regulation hereafter adopted by the Commission having substantially
the
same 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 from time to time, or any similar
rule orregulation hereafter adopted by the Commission having substantially
the
same purpose and effect as such Rule.
“Securities
Act” means the Securities Act of 1933, as amended, and the rules and
regulations promulgated thereunder.
“Selling
Shareholder Questionnaire” shall have the meaning set forth in
Section
3(a) hereof.
“Subscription
Agreement” means the several Subscription Agreements between the
Company and the individual subscribers executing the same, including the
Purchaser, dated for reference as of May 1, 2007, pursuant to which the Company
offered for sale up to 4,125,000 Offered Shares at a price of $0.34 per Offered
Share in Units of 75,000 Offered Shares each at a Unit Price of
$25,500.
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Registration
Statement Related to the
Subscription
Agreement-Share Offering
Reference
Date: May 1, 2007
SECTION
2
REGISTRATION
RIGHTS
2.1 Shelf
Registration. (a) Within
90 days from the Offering Termination Date (the “Filing Date”)
the Company shall prepare and file with the Commission a “Shelf” Registration
Statement covering the resale of 100% of the Registrable Securities on such
Filing Date for an offering to be made on a continuous basis pursuant to
Rule
415. The Registration Statement shall be on Form SB-2 (except if the Company
is
not then eligible to register for resale the Registrable Securities on Form
SB-2, in which case such registration shall be on another appropriate form
in
accordance herewith) and shall contain substantially the
“Plan of Distribution” attached hereto
as Exhibit A hereto. Subject
to the terms of this Agreement, the Company shall use its best efforts to
cause
a Registration Statement to be declared effective under the Securities Act
as
promptly as possible after the filing thereof, 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 have
been sold, or may be sold without volume restrictions pursuant to Rule 144(k),
as determined by the counsel to the Company pursuant to a written opinion
letter
to such effect, addressed and acceptable to the Company's transfer agent
and the
affected Holders, but in no event for more than two years following the
Effectiveness Date (the “Effectiveness Period”).
(b)
At
such time as it may file an acceleration request, the Company shall
telephonically request effectiveness of a Registration Statement as of 5:00
p.m.
New York City time. The Company shall immediately notify the Holders via
facsimile or e-mail of the effectiveness of a Registration Statement on the
same
Business Day that the Company telephonically confirms effectiveness with
the
Commission, which shall be the date requested for effectiveness of a
Registration Statement. The Company shall on the Business Day after the
Effective Date file a final Prospectus with the Commission as required by
Rule
424.
2.2 Expenses
of Registration.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 the Registration
Statement. The fees and expenses referred to in the foregoing sentence shall
include, without limitation, (i) all registration and filing fees (including,
without limitation, fees and expenses (A) with respect to filings required
to be
made with any trading market or exchange on which the Common Stock is then
listed for trading, (B) 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
(C) 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 NASD
Regulation, Inc. pursuant to the NASD Rule 2710, 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) and fees and disbursements up to an aggregate of $5,000 for one
counsel for all of the Holders, (vi) Securities Act liability insurance,
if the
Company so desires such insurance, and (vii) fees and expenses of all other
Persons retained by the Company in connection with the consummation of the
transactions contemplated by this Agreement. In addition, the Company shall
be
responsible for all of its internal expenses incurred in connection with
the
consummation of the transactions contemplated by this Agreement (including,
without limitation, all salaries and expenses of its officers and employees
performing legal or accounting duties), the expense of any annual audit and
the
fees and expenses incurred in connection with the listing of the Registrable
Securities on any securities exchange as required hereunder. 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.
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Registration
Statement Related to the
Subscription
Agreement-Share Offering
Reference
Date: May 1, 2007
SECTION
3
OBLIGATIONS
OF THE COMPANY WITH RESPECT TO THE FILING OF A REGISTRATION
STATEMENT
In connection with the Company's registration obligations hereunder, the
Company
shall:
(a) Not
less than five Business Days prior to the filing of the Registration Statement
and not less than one Business Day prior to the filing of any related Prospectus
or any 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
and
(ii) cause its officers and directors, counsel and independent certified
public
accountants to respond to such inquiries as shall be necessary, to conduct
a
reasonable investigation within the meaning of the Securities Act.
(b) The
Company shall not file the 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 Business Days after the Holders have been so furnished copies of a
Registration Statement or one Business 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 (with such changes as may be required to
reasonably comply with all then applicable federal and state securities laws)
as Exhibit B (the “Selling Shareholder
Questionnaire”) not less than two Business Days prior to the Filing
Date or by the end of the fourth Business Day following the date on which
such
Holder receives draft materials in accordance with this
Section.
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Registration
Statement Related to the
Subscription
Agreement-Share Offering
Reference
Date: May 1, 2007
(c) (i) Prepare
and file with the Commission such amendments, including post-effective
amendments, to the Registration Statement and the Prospectus used in connection
therewith as may be necessary to keep such Registration Statement continuously
effective as to the applicable Registrable Securities for 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 therelated 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 (iv) comply in all material respects with the 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.
(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 Business Day prior to such filing) and (if requested by any such Person)
confirm such notice in writing no later than one Business Day following the
day
(i)(A) when a Prospectus or any Prospectus supplement or post-effective
amendment to the 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 the Registration Statement
or
any post-effective amendment, when the same has become effective; (ii) of
any
request by the Commission or any other federal or state governmental authority
for amendments or supplements to a Registration Statement or Prospectus or
for
additional information; (iii) of the issuance by the Commission or any other
federal or state governmental authority of any stop order suspending the
effectiveness of the 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
the
Registration Statement ineligible for inclusion therein or any statement
made in
the 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 the Registration Statement, Prospectus or
other documents so that, in the caseof the 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) 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
the
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, notwithstanding each Holder's
agreement to keep such information confidential, the Holders make no
acknowledgement that any such information is material, non-public
information.
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Registration
Statement Related to the
Subscription
Agreement-Share Offering
Reference
Date: May 1, 2007
(e) Use
its best efforts to avoid the issuance of, or, if issued, obtain the withdrawal
of (i) any order suspending the effectiveness of the 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, if requested, 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.
(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) 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 ofthe 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, or 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.
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Registration
Statement Related to the
Subscription
Agreement-Share Offering
Reference
Date: May 1, 2007
(i) If
requested by the Holders, cooperate with the Holders to facilitate the timely
preparation and delivery of certificates representing Registrable Securities
to
be delivered to a transferee pursuant to the 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 Holders may
reasonably request.
(j) Upon
the occurrence of any event contemplated by this Section
3, 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, 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(j) to suspend the availability of a Registration Statement and
Prospectus.
(k) Comply
with all applicable rules and regulations of the Commission.
SECTION
4
FURNISH
INFORMATION
It
shall
be a condition precedent to the obligations of the Company to take any action
pursuant to Sections 2 or 3 hereof that the selling
Holders shall furnish to the Company such information regarding themselves,
the
Registrable Securities held by them and the intended method of disposition
of
such securities as shall be required to timely effect the registration of
their
Registrable Securities. The Company may require, at any time prior to the
Filing
Date, each Holder to furnish to the Company a statement as to the number
of
shares of Common Stock beneficially owned by such Holder the Selling
Shareholder Questionnaire and, if required by the Commission, the natural
persons thereof that have voting and dispositive control over the Shares.
Such
information is to be provided within three (3) days of the company’s request
therefor.
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Registration
Statement Related to the
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Agreement-Share Offering
Reference
Date: May 1, 2007
SECTION
5
INDEMINIFICATION
5.1 By
the Company. The Company shall, notwithstanding any
termination of this Agreement, indemnify and hold harmless each Holder and
the
Placement Agent, 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 or the Placement Agent (within the meaning of Section 15
of the
Securities Act or Section 20 of the Exchange Act) and the officers, directors,
members, shareholders, 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 orrelating to any omission or alleged omission of a material fact required
to
be stated therein or necessary to make the statements therein (in the case
of
any Prospectus or form of prospectus or supplement thereto, in light of the
circumstances under which they were made) not misleading 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 such form of Prospectus or in any amendment or supplement thereto
(it being understood that the Holder has approved Exhibit
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 such Holder of an outdated or defective
Prospectus after the Company has notified such Holder in writing that the
Prospectus is outdated or defective and prior to the receipt by such Holder
of
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.
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Registration
Statement Related to the
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Agreement-Share Offering
Reference
Date: May 1, 2007
5.2 Indemnification
By Selling 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 Xxxxxx'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 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
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
Exhibit A hereto for this purpose), such Prospectus or
such form of 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 or
defective Prospectus after the Company has notified such Holder in writing
that
the Prospectus is outdated or defective and prior to the receipt by such
Holder
of the Advice contemplated in Section 6(d). In no event
shall the liability of any selling Holder hereunder be greater in amountthan
the
dollar amount of the net proceeds received by such Holder upon the sale of
the
Registrable Securities giving rise to such indemnification
obligation.
5.3 Conduct
of Indemnification Proceedings.
(a) If
any Proceeding shall be brought or asserted against any Person entitled to
indemnity hereunder (an “Indemnified
Party”), such Indemnified Party shall promptly
notify the Person from whom indemnity is sought (the “Indemnifying
Party”) in writing, and the Indemnifying Party shall assume the
defense thereof, including the employment of counsel reasonably satisfactory
to
the Indemnified Party and the payment of all fees and expenses incurred in
connection with defense thereof; provided, that the failure of any Indemnified
Party to give such notice shall not relieve the Indemnifying Party of its
obligations or liabilities pursuant to this Agreement, except (and only)
to the
extent that such failure shall have prejudiced the Indemnifying
Party.
(b) 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; or (2) the Indemnifying Party shall have failed promptly to assume
the
defense of such Proceeding and to employ counsel reasonably satisfactory
to such
Indemnified Party in any such Proceeding; or (3) the named parties to any
such
Proceeding (including any impleaded parties) include both such Indemnified
Party
and the Indemnifying Party, and such Indemnified Party shall have been advised
by counsel that a 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 expense of one such counsel for each Holder shall be at the
expense of the Indemnifying Party). The Indemnifying Party shall not
be liable for any settlement of any such Proceeding effected without its
written
consent, which consent shall not be unreasonably withheld. No
Indemnifying Party shall, without the prior written consent of the Indemnified
Party, effect any settlement of any pending Proceeding in respect of which
any
Indemnified Party is a party, unless such settlement includes an unconditional
release of such Indemnified Party from all liability on claims that are the
subject matter of such Proceeding.
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Registration
Statement Related to the
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Agreement-Share Offering
Reference
Date: May 1, 2007
(c) Subject
to the terms of this Agreement, all fees and expenses of the Indemnified
Party
(including reasonable fees and expenses to the extent incurred in connection
with investigating or preparing to defend such Proceeding in a manner not
inconsistent with this Section) shall be paid to the Indemnified Party, as
incurred, within ten Business Days of written notice thereof to the Indemnifying
Party (regardless of whether it is ultimately determined that an Indemnified
Party is not entitled to indemnification hereunder; provided, that the
Indemnifying Party may require such Indemnified Party to undertake to reimburse
all such fees and expenses to the extent it is finally judicially determined
that such Indemnified Party is not entitled to indemnification
hereunder).
5.4 Contribution. In
order to provide for just and equitable contribution to joint liability under
the Securities Act in any case in which contribution under the Securities
Act
may be required on the part of any such selling Holder or any such controlling
person in circumstances for which indemnification is provided under this
Section 5; then, and in each such case, the Company and such Holder will
contribute to the aggregate losses, claims, damages or liabilities to which
they
may be subject (after contribution from others) in such proportion so that
such
Holder is responsible for the portion represented by the percentage that
the
public offering price of its Registrable Securities offered by and sold under
the Registration Statement bears to the public offering price of all securities
offered by and sold under such Registration Statement, and the Company and
other
selling Holders are responsible for the remaining portion in proportion to
the
securities offered by and sold by each under such Registration Statement;
provided, however, that, in any such case, (A) no such Holder will be
required to contribute any amount in excess of the public offering price
of all
such Registrable Securities offered and sold by such Holder pursuant to such
Registration Statement and (B) no person or entity guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities
Act) will be entitled to contribution from any person or entity who was not
guilty of such fraudulent misrepresentation.
Page
11 of
30
07
05
01--Power of the Dream Ventures, Inc.
Registration
Statement Related to the
Subscription
Agreement-Share Offering
Reference
Date: May 1, 2007
5.6 Survival. The
obligations of the Company and Holders under this
Section 5 shall survive the completion of any offering of
Registrable Securities in a Registration Statement, and otherwise.
SECTION
6
GENERAL
PROVISIONS
6.1 Remedies. In
the event of a breach by the Company or by a Holder, of any of their
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, will be entitled to
specific performance of its rights under this Agreement. The Company
and each Holder agree that monetary damages would not provide adequate
compensation for any losses incurred by reason of a breach by it of any of
the provisions of this Agreement and hereby further agrees that, in the event
of
any action for specific performance in respect of such breach, it shall waive
the defense that a remedy at law would be adequate. The remedies provided
herein are cumulative and not exclusive of any other remedies provided by
law.
6.2 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 the Registration Statement.
6.3 Notices. Any
and all notices or other communications or deliveries required or permitted
to
be provided hereunder shall be in writing and shall be deemed given and
effective on the earliest of (i) the date of transmission, if such notice
or
communication is delivered via facsimile at the facsimile telephone number
specified in this Section prior to 6:30 p.m. (New York City time) on a Business
Day, (ii) the Business Day after the date of transmission, if such notice
or
communication is delivered via facsimile at the facsimile telephone number,
if
any, specified in this Agreement no later than 6:30 p.m. (New York
City time) on any date and earlier than 11:59 p.m. (New York City
time) on such date, (iii) the Business Day following the date of mailing,
if
sent by nationally recognized overnight courier service, or (iv) upon actual
receipt by the party to whom such notice is required to be given. The
address for such notices and communications shall be as follows:
|
If
to the Company:
|
Power
of the Dream Ventures, Inc.
|
|
1095
Budapest
|
|
|
Soroksari
ut 94-96
|
|
|
Hungary
|
|
|
x00-0-000-0000
|
|
|
With
copies to:
|
Xxxxxxxx
Xxxxx & Xxxxx, LLP
|
|
000
Xxxxx Xxxxxx
|
|
|
Telephone:
(000) 000-0000
|
|
|
Facsimile:
(000) 000-0000
|
|
|
Attention: Xxxxxx
Xxxxxxxx, Esq.
|
Page
12 of
30
07
05
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Registration
Statement Related to the
Subscription
Agreement-Share Offering
Reference
Date: May 1, 2007
|
If
to a Holder:
|
To
the address of such Holder as it appears in the stock transfer
books of
the Company,
|
or
such
other address as may be designated in writing hereafter, in the same manner,
by
such Person.
6.4 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 its rights or obligations hereunder without the prior written consent
of
each Holder. Each Holder may assign their respective rights hereunder
in the manner and to the Persons as may be permitted under the Subscription
Agreement.
6.5 Counterparts. This
Agreement may be executed in any number of 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.
6.6 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 it practicable.
6.7 Cumulative
Remedies. The remedies provided herein are cumulative and
not exclusive of any remedies provided by law.
6.8 Severability.
If any term, provision, covenant or restriction of this Agreement is held
by a court of competent jurisdiction to be invalid, illegal, void or
unenforceable, the remainder of the terms, provisions, covenants and
restrictions set forth herein shall remain in full force and effect and shall in
no way be affected, impaired or invalidated, and the parties hereto shall
use
their reasonable efforts to find and employ an alternative means to achieve
the
same or substantially the same result as that contemplated by such term,
provision, covenant or restriction. It is hereby stipulated and
declared to be the intention of the parties that they would have executed
the
remaining terms, provisions, covenants and restrictions without terms that
may be invalid, illegal, void or unenforceable.
Page
13 of
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07
05
01--Power of the Dream Ventures, Inc.
Registration
Statement Related to the
Subscription
Agreement-Share Offering
Reference
Date: May 1, 2007
6.9 Headings. The
headings in this Agreement are for convenience of reference only and shall
not
limit or otherwise affect the meaning hereof.
6.10 Shares
Held by the Company and its Affiliates. Whenever the consent
or approval of Holders of a specified percentage of Registrable Securities
is
required hereunder, the Registrable Securities held by the Company or its
Affiliates (other than any Holder or transferees or successors or assigns
thereof if such Holder is deemed to be an Affiliate solely by reason of its
holdings of such Registrable Securities) shall not be counted in determining
whether such consent or approval was given by the Holders of such required
percentage.
6.11 Independent
Nature ofHolders' Obligations and Rights.
The
Holder who is a party to this Agreement, acknowledges that the Company is
entering into substantially identical agreements with other holders of the
Company’s Registrable Securities; each such agreement being deemed a separate
and independent agreement between the Company and such other Holders, except
that each Holder acknowledges and consents to the rights granted to each
other
Holder under such agreements. The obligations of each Holder hereunder are
several and not joint with the obligations of any other Holder hereunder,
and
neither Xxxxxx 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.
6.12. Entire Agreement. This
Agreement, together with all the exhibits hereto, constitutes and contains
the
entire agreement and understanding of the parties with respect to the subject
matter hereof and supersedes any and all prior negotiations, correspondence,
agreements, understandings, duties or obligations between the parties respecting
the subject matter hereof.
6.13 Third Parties. Nothing
in this Agreement, express or implied, is intended to confer upon any person,
other than the parties hereto and their successors and assigns, any rights
or
remedies under or by reason of this Agreement.
Page
14 of
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07
05
01--Power of the Dream Ventures, Inc.
Registration
Statement Related to the
Subscription
Agreement-Share Offering
Reference
Date: May 1, 2007
6.14 Costs and Attorneys’ Fees. In
the event that any action, suit or other proceeding is instituted concerning
or
arising out of this Agreement or any transaction contemplated hereunder,
the
prevailing party shall recover all of such party’s costs and attorneys’ fees
incurred in each such action, suit or other proceeding, including any and
all
appeals or petitions therefrom.
6.15 Adjustments for Stock Splits
and Certain Other Changes. Wherever in this Agreement there
is a reference to a specific number of shares of Common Stock or Preferred
Stock
of the Company of any class or series, then, upon the occurrence of any
subdivision, combination or stock dividend of such class or series of
stock, the specific number of shares so referenced in this Agreement shall
automatically be proportionally adjusted to reflect the effect on the
outstanding shares of such class or series of stock by such subdivision,
combination or stock dividend.
6.16
Rule 144 Reporting.With
a view to making available the benefits of certain rules and regulations
of the
Commission which may at any time permit the sale of the Registrable Securities
to the public without registration, the Company agrees to:
(a) make
and keep public information available, as those terms are understood and
defined
in Rule 144 under the Securities Act, at all times during the Effectiveness
Period; and
(b) use
its best efforts to file with the SEC in a timely manner all reports and
other
documents required of the Company under the Securities Act and the Exchange
Act
during the Effectiveness Period.
6.17 Governing
Law. The
corporate laws of the State of Delaware shall govern all issues concerning
the
relative rights of the Company and its shareholders. All other questions
concerning the construction, validity, enforcement and interpretation of
this
Agreement shall be governed by the internal laws of the State of New York,
without giving effect to any choice of law or conflict of law provision or
rule
(whether of the State of New York or any other jurisdictions) that would
cause
the application of the laws of any jurisdictions other than the State of
New
York. Each party hereby irrevocably submits to the exclusive
jurisdiction of the state and federal courts sitting in the City of New York,
for the adjudication of any dispute hereunder or in connection herewith or
therewith, or with any transaction contemplated hereby or discussed herein,
and
hereby irrevocably waives, and agrees not to assert in any suit, action or
proceeding, any claim that it is not personally subject to the jurisdiction
of
any such court, that such suit, action or proceeding is brought in an
inconvenient forum or that the venue of such suit, action or proceeding is
improper. Each party hereby irrevocably waives personal service of
process and consents to process being served in any such suit, action or
proceeding by mailing a copy thereof to such party at the address for such
notices to it under this Agreement and agrees that such service shall constitute
good and sufficient service of process and notice thereof. Nothing
contained herein shall be deemed to limit in any way any right to serve process
in any manner permitted by law. EACH PARTY HEREBY IRREVOCABLY
WAIVES ANY RIGHT IT MAY HAVE, AND AGREES NOT TO REQUEST, A JURY TRIAL FOR
THE
ADJUDICATION OF ANY DISPUTE HEREUNDER OR IN CONNECTION HEREWITH OR ARISING
OUT
OF THIS AGREEMENT OR ANY TRANSACTION CONTEMPLATED HEREBY.
Page
15 of
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07
05
01--Power of the Dream Ventures, Inc.
Registration
Statement Related to the
Subscription
Agreement-Share Offering
Reference
Date: May 1, 2007
[SIGNATURES
APPEAR ON THE FOLLOWING PAGE]
[BALANCE
OF THIS PAGE INTENTIONALLY LEFT BLANK]
Page
16 of
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07
05
01--Power of the Dream Ventures, Inc.
Registration
Statement Related to the
Subscription
Agreement-Share Offering
Reference
Date: May 1, 2007
IN
WITNESS WHEREOF, the parties hereto have executed this Registration
Rights Agreement as of the dates and year set forth opposite their respective
names.
|
EFFECTIVE
DATE:
|
Power
of the Dream Ventures, Inc.
|
|
By:
|
|
|
Name: Xxxxxx
Xxxxxxxx
Title: President
|
|
|
Telephone:
x00-0-000-0000
|
|
|
Facsimile: x00-0-000-0000
|
|
|
Execution
Date:
|
Purchaser:
|
|
Signed:
|
|
|
Printed:
|
|
|
Title
(if applicable):
|
|
|
Address:
|
|
|
Telephone:
|
|
|
Facsimile:
|
Page
17 of
30
07
05
01--Power of the Dream Ventures, Inc.
Registration
Statement Related to the
Subscription
Agreement-Share Offering
Reference
Date: May 1, 2007
Exhibit
A
Plan
of Distribution
Each
Selling Stockholder, or his pledgees, assignees and successors-in-interest
of
the common stock may, from time to time, sell any or all of their shares
of
common stock on the Over-the-Counter 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:
|
|
|
ordinary
brokerage transactions and transactions in which the broker-dealer
solicits purchasers;
|
|
|
|
block
trades in which the broker-dealer will attempt to sell the shares
as agent
but may position and resell a portion of the block as principal
to
facilitate the transaction;
|
|
|
|
purchases
by a broker-dealer as principal and resale by the broker-dealer
for its
account;
|
|
|
|
an
exchange distribution in accordance with the rules of the applicable
exchange;
|
|
|
privately
negotiated transactions;
|
|
|
|
settlement
of short sales entered into after the effective date of the registration
statement of which this prospectus is a
part;
|
|
|
|
broker-dealers
may agree with the Selling Stockholders to sell a specified number
of such
shares at a stipulated price per
share;
|
|
|
|
through
the writing or settlement of options or other hedging transactions,
whether through an options exchange or
otherwise;
|
|
|
a
combination of any such methods of sale;
or
|
|
|
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.
The
Selling Stockholders may sell their shares directly to purchasers or to or
through broker-dealers, which may act as agents or principals. These
broker-dealers may receive compensation in the form of discounts, concessions
or
commissions from the Selling Stockholders. They may also receive compensation
from the purchasers of our common stock for whom such broker-dealers may
act as
agents or to whom they sell as principal, or both (which compensation as
to a
particular broker-dealer might be in excess of customary
commissions).
Page
18 of
30
07
05
01--Power of the Dream Ventures, Inc.
Registration
Statement Related to the
Subscription
Agreement-Share Offering
Reference
Date: May 1, 2007
Broker-dealers
engaged by the Selling Stockholders may arrange for other brokers-dealers
to
participate in sales. Broker-dealers may receive commissions or discounts
from
the Selling Stockholders (or, if any broker-dealer acts as agent for the
purchaser of shares, from the purchaser) in amounts to be negotiated, 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 NASDR
Rule 2440; and in the
case of a principal transaction a markup or markdown in compliance with NASDR
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 the creation of one or
more
derivative securities which require the delivery to such broker-dealer or
other
financial institution of shares offered by this prospectus, which shares
such
broker-dealer or other financial institution may resell pursuant to this
prospectus (as supplemented or amended to reflect such
transaction).
The
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
Selling Stockholders will pay all commissions, transfer taxes and other expenses
associated with their sales. The shares offered hereby are being registered
pursuant to our contractual obligations, and we have agreed to pay the expenses
of the preparation of this prospectus.
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. In addition, any securities
covered by this prospectus which qualify for sale pursuant to Rule 144 under
the
Securities Act may be sold under Rule 144 rather than under this prospectus.
There is no underwriter or coordinating broker acting in connection with
the
proposed sale of the resale shares by the Selling Stockholders.
Page
19 of
30
07
05
01--Power of the Dream Ventures, Inc.
Registration
Statement Related to the
Subscription
Agreement-Share Offering
Reference
Date: May 1, 2007
The
Selling Stockholders
have advised us that they have not
entered into agreements, understandings or arrangements with any underwriters
or
broker-dealers regarding the sale of their shares. The Selling Stockholders
do not have an underwriter or
coordinating broker acting in connection with the proposed sale of our common
stock. There is no over-allotment option and no shares will be sold by
us.
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 limitations by reason of Rule 144(k) under the
Securities Act or any other rule of similar effect, (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, or (iii) two years from the date that the
registration statement of which this prospectus is part was ordered effective
by
the Commission.
The
resale shares will be sold only through registered or licensed brokers or
dealers if required under applicable state securities laws. In addition,
in
certain states, the resale shares 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.
Regulation
M may limit the timing of purchases and sales of any of the shares of our
common
stock by the Selling Stockholders and any other person distributing our common
stock. The anti-manipulation rules under the Securities Exchange Act of 1934
may
apply to sales of shares of our common stock in the market and to the activities
of the Selling Stockholders and their affiliates. Furthermore, Regulation
M of
the Securities Exchange Act may restrict the ability of any person engaged
in
the distribution of shares of our common stock to engage in market-making
activities with respect to the particular shares of common stock being
distributed for a period of up to five business days prior to the commencement
of such distribution. All of the foregoing may affect the marketability of
our
common stock and the ability of any person or entity to engage in market-making
activities with respect to our common stock.
Rules
101
and 102 of Regulation M under the Securities Exchange Act of 1934, among
other
things, generally prohibit certain participants in a distribution from bidding
for or purchasing for an account in which the participant has a beneficial
interest, any of the securities that are the subject of the distribution.
Rule
104 of Regulation M governs bids and purchases made to stabilize the price
of a
security in connection with a distribution of the security.
Page
20 of
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07
05
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Registration
Statement Related to the
Subscription
Agreement-Share Offering
Reference
Date: May 1, 2007
Exhibit
B
POWER
OF THE DREAM VENTURES, INC.
Selling
Stockholder Notice and Questionnaire
|
To:
|
Power
of the Dream Ventures, Inc.
|
|
1095
Budapest
|
|
|
Soroksari
ut 94-96
|
|
|
Hungary
|
|
|
x00-0-000-0000
|
|
|
Attention: President
|
The
undersigned beneficial owner (the “Selling Stockholder”) of
[---] shares of common stock (the “Registrable Securities”) of
Power of the Dream Ventures, Inc. a
Delaware corporation (the “Company”), understands that the
Company has filed or intends to file with the Securities and Exchange Commission
(the “Commission”) a registration statement (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.
Your
responses to the questions set forth in the Questionnaire will be utilized
in
connection with the preparation of a Registration Statement. The
information requested in the Questionnaire is for your protection and that
of
the Company. The information supplied in response to the
Questionnaire will be used to assure that the information included in the
Registration Statement will be correct. Accordingly, great care
should be exercised in completing the Questionnaire.
Certain
legal consequences arise from being named as a selling security holder 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 security holder in the Registration Statement and the
related
prospectus. Certain terms used in the Questionnaire are italicized, and
definitions of such italicized terms are provided in Annex
A to the Questionnaire.
Page
21 of
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07
05
01--Power of the Dream Ventures, Inc.
Registration
Statement Related to the
Subscription
Agreement-Share Offering
Reference
Date: May 1, 2007
NOTICE
The
undersigned Selling Stockholder of Registrable Securities hereby elects to
include the Registrable Securities owned by it in the Registration Statement.
In
connection therewith, 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 the
questionnaire):
|
|
|
|
|
2.
Address for Notices to Selling Stockholder:
|
Address:
|
|
|
|
|
|
|
|
Telephone:
|
|
Fax:
|
|
Contact
Person:
|
Page
22 of
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07
05
01--Power of the Dream Ventures, Inc.
Registration
Statement Related to the
Subscription
Agreement-Share Offering
Reference
Date: May 1, 2007
3.
Share Ownership. Please identify the number of shares of the
Company, or any of its parents or any subsidiary's equity securities that
you
beneficially own as of the date of the Questionnaire. Include all shares
of the
Company’s securities which are (i) registered in your name, including shares
registered in your name as trustee, executor, custodian, pledgee, agent or
nominee, either alone or with others, (ii) owned beneficially by you or any
associate of yours, or (iii) registered in the name of a nominee or in street
name, including any such shares held for the account of any of the
above.
|
Name
and Address of Record Owner
|
Type
of Security
|
No.
of Shares and
%
of Class
|
Type
of Ownership
(trust,
partnership,
direct,
personal, etc.)
|
|
|
|||
4.
Rights to Acquire Shares. Please identify on the following
table the number of shares of the Company’s equity securities which you have the
right to acquire (including stock options, warrants, conversion or otherwise)
within (60) days of the proposed effective date. Include in this
table all rights to acquire the Company’s securities which are (i) registered in
your name, including shares registered in your name as trustee, executor,
custodian, pledgee, agent or nominee, either alone or with others, (ii) owned
beneficially by you or any associate of yours, or (iii) registered in the
name
of a nominee or in a street name, including any such shares held for the
account
of the above.
|
Name
of Record Owner
|
Type
of Security
|
Number
of Shares
|
Type
of Ownership
(trust,
partnership,
direct,
personal, etc.)
|
Page
23 of
30
07
05
01--Power of the Dream Ventures, Inc.
Registration
Statement Related to the
Subscription
Agreement-Share Offering
Reference
Date: May 1, 2007
5. Disclaimer
of Beneficial Ownership. Do you wish to disclaim shares
beneficially owned and reported above for purposes other than for use in
the
Registration Statement?
ANSWER: YES NO
NOTE:
You
may wish to consult with counsel regarding this disclaimer as it may be
important not only in connection with securities laws, but also because,
without
it, your reporting the ownership of such shares might be construed as an
admission of ownership for other purposes, such as short swing trading
liabilities.
If
“yes,”
please provide the information requested in the following table with respect
to
the person(s) who should be shown as the beneficial owner(s) of the shares
in
question:
|
Class
of Stock
|
Number
of Shares
Beneficially
Owned
|
Name
of Actual
Beneficial
Owner
|
Relationship
of Such
Person
to You
|
Please
explain the nature of any indirect ownership (i.e., “as trustee for
children,” “by wife,” “by Trust,” "through partnership," "through limited
liability company," etc.):
6.
Broker-Dealer Status:
(a) Are
you an NASD member, a person associated or affiliated with an NASD member
or an
underwriter or related person with respect to the proposed public
offering?
Yes No
Please
identify any NASD member with
whom you are associated or affiliated and describe your relationship to that
member. If you are a “private investment group,” such as a hedge
fund, investment partnership or other group of purchasers, please answer
this
question to the best of your knowledge not only with respect to yourself
but
also with respect to all persons comprising such group since those persons
are
considered by the NASD to be the beneficial owners of the Company’s securities
held by the group.
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07
05
01--Power of the Dream Ventures, Inc.
Registration
Statement Related to the
Subscription
Agreement-Share Offering
Reference
Date: May 1, 2007
(b) If
you answered “yes” to Section 3(a), did you receive your
Registrable Securities as compensation for investment banking services to
the
Company?
Yes No
Yes No
(d) If you are an affiliate of a broker-dealer, do you certify that you bought the Registrable Securities in the ordinary course of business, and at the time of the purchase of the Registrable Securities to be resold, you had no agreements or understandings, directly or indirectly, with any person to distribute the Registrable Securities?
Yes No
7. Relationships with the Company:
(a) Except
as set forth below, neither the undersigned nor any of its affiliates, officers,
directors, family members, 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:
|
|
|
|
|
|
(b) Please
state whether you know of any arrangements made or to be made by any person,
or
any transaction already effected:
|
|
·
|
to
limit or restrict the sale of common stock during the period of
the
offering of the common stock to be registered by the Registration
Statement;
|
|
|
·
|
to
stabilize the market for the common stock;
or
|
|
|
·
|
to
withhold commissions or otherwise to hold each underwriter or dealer
responsible for the distribution of his participation in the contemplated
offering of the common stock.
|
Page
25 of
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07
05
01--Power of the Dream Ventures, Inc.
Registration
Statement Related to the
Subscription
Agreement-Share Offering
Reference
Date: May 1, 2007
(c) Interest
in Any Transaction.
(i) Did
you, any member of your immediate family or any of your
associateshave a direct or indirect material interest in any
transaction or series of similartransactions in which the amount involved
exceeded $60,000 (computed without regard to the amount of profit or loss
involved in the transaction) during the Company’s Current Fiscal Year or the
Company’s last completed fiscal years to which the Company or any
subsidiary was a party?
(ii) Will
you, any member of your immediate family or any of your
associateshave a direct or indirect material interest in any
currently proposed transaction orseries of transactions in which the amount
involved exceeds $60,000 (computed without regard to the amount of profit
or
loss involved in the transaction), to which the Company or any subsidiary
will be a party?
Yes No
If
“yes,”
please describe.
(d) Have
you entered into agreements, understandings or arrangements with any
underwriters or broker-dealers regarding the sale of your shares?
Yes No
If
“yes,”
please describe.
(e) Have
you engaged an underwriter or coordinating broker to act in connection with
the
proposed sale of your shares?
Yes No
If
“yes,”
please describe.
Page
26 of
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07
05
01--Power of the Dream Ventures, Inc.
Registration
Statement Related to the
Subscription
Agreement-Share Offering
Reference
Date: May 1, 2007
7. General
The
regulations of the Commission require that, if otherwise disclosable, the
information you have furnished in response to the questions above be included
in
the Registration Statement. If you know of any additional information
necessary to make the answers you have given above not misleading in the
light
of the circumstances under which your answers were made, please disclose
in
additional sheets and attach to this Questionnaire.
{Balance
of the Page is Blank}
Page
27 of
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07
05
01--Power of the Dream Ventures, Inc.
Registration
Statement Related to the
Subscription
Agreement-Share Offering
Reference
Date: May 1, 2007
Acknowledgements
The
undersigned xxxxxx agrees to notify the Company promptly of any inaccuracies
or
changes in the foregoing information which should be made as a result of
any
developments, including the passage of time.
The
understands and acknowledges that the Company will rely on the information
set
forth herein for purposes of preparing and filing the Registration Statement
covering an underwritten public offering of the Company’s securities. 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.
The
understands that material misstatements or the omission of material facts
in the
Registration Statement may give rise to civil and criminal liabilities to
the
Company, to each officer and director of the Company signing the Registration
Statement and other persons signing the Registration Statement. I will notify
the Company and its legal counsel (Xxxxxxxx Xxxxx & Xxxxx,
LLP) of any misstatement of a material fact in the Registration
Statement or any amendment thereto, and of the omission of any material fact
necessary to make the statements contained therein not misleading, as soon
as
practicable after a copy of the Registration Statement or any such amendment
has
been provided to me. I will promptly notify the Company and its legal
counsel (Xxxxxxxx Xxxxx & Xxxxx, LLP) of any change in the
foregoing information which occurs prior to the effective date of the
Registration Statement.
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.
|
Name
of Selling
Stockholder:
|
Dated:
|
|
|
By:
|
||
|
Name:
|
||
|
Title:
|
||
PLEASE
FAX A COPY OF THE COMPLETED AND EXECUTED NOTICE AND
QUESTIONNAIRE,
AND RETURN THE ORIGINAL BY OVERNIGHT MAIL, TO:
Xxxxxxxx
Xxxxx & Xxxxx, LLP
000
Xxxxx Xxxxxx
New
York, New York 10019
Telephone:
(000)000-0000
Facsimile:
(000) 000-0000
Attention: Xxxxxx
Xxxxxxxx, Esq.
Page
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07
05
01--Power of the Dream Ventures, Inc.
Registration
Statement Related to the
Subscription
Agreement-Share Offering
Reference
Date: May 1, 2007
ANNEX
A
Definitions
The
term
“affiliate” means a person or entity that directly or
indirectly through one or more intermediaries, controls, or is controlled
by, or
is under common control with, another person.
The
term
“arrangement” means any plan, contract, authorization or
understanding, whether or not set forth in a formal document.
The
term
“associate” as used throughout the Questionnaire, means
(a) any corporation or organization (other than the Company or any
subsidiary) of which you are an officer, director, member or partner or of
which
you are, directly or indirectly, the beneficial owner of 5% or more of any
class
of equity securities, (b) any trust or other estate in which you have a
substantial beneficial interest or as to which you serve as trustee or in
a
similar capacity, (c) your spouse, (d) any relative of your spouse or
any relative of yours who has the same home as you or who is a director or
officer or key executive of the Company or any subsidiary, (e) any partner,
syndicate member or person with whom you have agreed to act in concert with
respect to the acquisition, holding, voting or disposition of shares of the
Company’s securities.
The
term
“beneficially,” when used in connection with the ownership of
securities, means (a) any interest in a security which entitles you to any
of the rights or benefits of ownership even though you may not be the owner
of
record or (b) securities owned by you directly or indirectly, including
those held by you for your own benefit (regardless of how registered) and
securities held by others for your benefit (regardless of how registered),
such
as by custodians, brokers, nominees, pledges, etc., and including securities
held by an estate or trust in which you have an interest as legatee or
beneficiary, securities owned by a partnership of which you are a partner,
securities held by a personal holding company of which you are a shareholder,
shares held by a public company of which you are a director, officer or holder
of more than a 5% interest, and securities held in the name of your spouse,
minor children and any relative of yours (sharing the same home) or your
spouse.
A
“beneficial owner” of a security includes any person who,
directly or indirectly, through any contract, arrangement, understanding,
relationship or otherwise has or shares:
(1) voting
power which includes the power to vote, or to direct the voting of, such
security; and/or
(2) investment
power which includes the power to dispose, or to direct the disposition,
of such
security.
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07
05
01--Power of the Dream Ventures, Inc.
Registration
Statement Related to the
Subscription
Agreement-Share Offering
Reference
Date: May 1, 2007
The
term
“Commission” as used herein refers to the United States
Securities and Exchange Commission.
The
term
“control” means the possession, directly or indirectly, of the
power to direct or cause the direction of the management and policies of
the
person specified, whether through the ownership of voting securities, by
contract or otherwise.
A
“control person” of a specified person is a person that directly or
indirectly through one or more intermediaries, controls
the person specified.
The
term
“executive officer(s)” means the president, any vice president
in charge of a principal business unit, division or function (such as sales,
administration or finance), any other officer who performs a policy making
function or any person who performs similar policy making functions for the
Company (or other entity that may be indicated).
The
term
“family relationship” means any relationship by blood, marriage
or adoption, not more remote than first cousin.
The
term
“immediate family” includes the spouse; parents; children;
siblings; mothers and fathers-in-law; sons and daughters-in-law; and brothers
and sisters-in-law of the person specified.
The
term
“material relationship” has not been defined by the
SEC. However, the SEC has indicated that it will probably construe as
a “material relationship” any relationship which tends to prevent arms-length
bargaining in dealings with a company, whether arising from a close business
connection or family relationship, a relationship of control or
otherwise. It seems prudent, therefore, to consider that you would
have such a relationship, for example, with any organization of which you
are an
officer, director, trustee or partner or in which you own, directly or
indirectly, 5% or more of the outstanding voting stock, or in which you have
some other substantial interest, and with any person or organization with
whom
you have, or with whom any relative or spouse (or any other person or
organization as to which you have any of the foregoing other relationships)
has,
a contractual relationship.
The
NASD
defines a “member” as being any broker or dealer or individual,
partnership, corporation or other legal entity admitted to membership in
the
NASD or any officer or partner of such a member, or the executive representative
of such a member or the substitute for such representative.
Page
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