ODYNE CORPORATION
ODYNE
CORPORATION
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March
27,
2008
The
Quercus Trust
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A109-PMB
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Spinel
Finance LLC
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Ladies
and Gentlemen:
Reference
is made to the Securities Purchase Agreement, dated as of March __, 2008 (the
“Purchase
Agreement”),
by
and between Odyne Corporation, a Delaware corporation (the “Company”),
and
each of the several purchasers named in Exhibit A attached thereto (the
“Purchasers”),
pursuant to which the Company has agreed to issue and sell to the Purchasers
an
aggregate of up to 11,666,667 shares of Common Stock and warrants to purchase
up
to an equivalent number of shares of Common Stock. All capitalized terms not
defined herein shall have the meaning ascribed to them in the Purchase Agreement
and the Warrants (as defined in the Purchase Agreement),
respectively.
The
Company hereby agrees to the following:
(a) Within
150 calendar days following the Closing Date, the Company shall cause a
registration statement on Form S-3 (or Form S-1 or such other Form appropriate
for such purpose) (the “Registration
Statement”)
to be
filed with the U.S. Securities and Exchange Commission (the “Commission”)
under
the Securities Act of 1933, as amended (the “Securities
Act”),
for
an offering to be made on a continuous basis pursuant to Rule 415 of the
Securities Act with respect to (i) the Shares and (ii) the Warrant Shares to
be
issued to or on behalf of the Purchasers at the Closing pursuant to Section
2.1
of the Purchase Agreement (together, the “Registrable
Securities”).
Such
Registration Statement (and any additional registration statement) shall contain
the "Plan of Distribution" attached hereto as Annex
A.
The
Company shall cause such Registration Statement to be declared effective under
the Securities Act as
soon as
possible but, in any event, no later than 240 calendar days following the
Closing Date (the “Outside
Date”),
and
shall use its reasonable best efforts to keep the Registration Statement
continuously effective for three years after the effective date of the
Registration Statement (the “Effectiveness
Period”).
By
5:00 p.m. (New York City time) on the Business Day immediately following the
effective date of such Registration Statement (or any additional registration
statement), the Company shall file with the Commission in accordance with Rule
424 under the Securities Act the final prospectus to be used in connection
with
sales pursuant to such Registration Statement (or any additional registration
statement), whether or not such filing is technically required under such Rule.
For purposes of this Agreement, “registration
statement”
refers
to any registration statement (including the Registration Statement) covering
the Registrable Securities or listing either of the Purchasers as a “Selling
Stockholder.”
(b) (i)
Notwithstanding anything to the contrary contained in this Agreement, if the
staff of the Commission (the “Staff”),
or
the Commission, seeks to characterize any offering pursuant to a registration
statement filed in accordance with this Agreement as constituting a primary
offering of securities by or on behalf of the Company, or in any other manner,
such that the Staff or the Commission does not permit such registration
statement (including the Registration Statement) to become effective and used
for resales in a continuous at the market offering pursuant to Rule 415 under
the Securities Act by the Purchasers (or as otherwise may be acceptable to
each
Purchaser) without being named therein as “underwriters” (a “Resale
Registration Statement”),
and
the Company has used its best efforts to contest such determination and in
such
regard uses its reasonable best efforts to cause the Commission to permit the
affected Purchasers or their respective counsel to participate in Commission
conversations on such issues with the Company and the Company timely conveys
relevant information concerning such issues with the affected Purchasers and
their respective counsel, then the Company shall have the right to reduce the
number of Registrable Securities to be included in such registration statement
by all Purchasers, to the extent that the Staff or the Commission shall permit
such registration statement to become effective as a Resale Registration
Statement. In making such reduction, subject to the last sentence of this
paragraph (b)(i), the Company shall reduce the number of Registrable Securities
(first as to any Shares and second as to any Warrant Shares) to be included
by
all Purchasers on a pro rata basis (based upon the number of Registrable
Securities otherwise required to be included for each Purchaser), unless the
inclusion of Registrable Securities by a particular Purchaser or a particular
type of Purchasers is the cause of the refusal by the Staff or the Commission
to
allow such registration statement to become effective as a Resale Registration
Statement, in which event the Registrable Securities held by such Purchaser
or
type of Purchasers shall be the only Registrable Securities subject to reduction
(and if by a set of Purchasers on a pro rata basis with respect to such
Purchasers or on such other basis as would result in the exclusion of the least
number of shares by all such Purchasers). In addition, if the Staff or the
Commission requires any Purchaser seeking to sell under a Registration Statement
filed pursuant to this Agreement to be identified as an “underwriter” in order
to permit such Registration Statement to become effective, and such Purchaser
does not consent to being so named as an underwriter in such Registration
Statement, then, in each such case, the Company shall be entitled, following
good faith discussions with the Staff and/or the Commission and the affected
Purchaser, to reduce the total number of Registrable Securities to be registered
on behalf of such Purchaser, until such time as the Staff or the Commission
does
not require such identification. Notwithstanding the foregoing, any reduction
pursuant to this paragraph (b)(i) shall first be applied pro-rata to (i) any
securities not issued pursuant to the Purchase Agreement and (ii) any securities
issued or issuable to any placement agent in connection with the transactions
contemplated by the Purchase Agreement.
(ii)
In
the event of any reduction in Registrable Securities to be included in a
registration statement (including the Registration Statement) pursuant to this
paragraph, an affected Purchaser shall have the right, upon delivery of a
written request to the Company signed by such Purchaser, to require the Company
to file an additional registration statement(s) on Form S-3 (or Form S-1 or
such
other Form appropriate for such purpose) with the Commission under the
Securities Act for an offering to be made on a continuous basis pursuant to
Rule
415 of the Securities Act within 90 calendar days after the Company’s receipt of
any such request (the “Additional
Filing Date”)
for
resale by such Purchaser, in a manner reasonably acceptable to such Purchaser,
of any Registrable Securities which are not then covered by an existing and
effective registration statement (including the Registration Statement) and
the
Company shall following such request use its reasonable best efforts to cause
such additional registration statement(s) to be declared effective under the
Securities Act as soon as possible but, in any event, no later than 60 calendar
days following the applicable Additional Filing Date (the “Additional
Outside Date”),
and
kept continuously effective for three years after the effective date of any
such
registration statement (in each such case, the “Additional
Effectiveness Period”)
(it
being understood that the demand right under this sentence may be exercised
by a
Purchaser multiple times and with respect to limited amounts of Registrable
Securities to the extent limitations are required in order to permit the resale
thereof by such Purchaser pursuant to a Resale Registration Statement as
contemplated above); and the Company shall otherwise use its reasonable best
efforts to satisfy the registration rights set forth in this Agreement as
promptly as practicable.
2
(c) If
for
any reason or for no reason whatsoever, either (i) the Registration Statement
is
not declared effective by the Commission prior to the Outside Date or any
additional registration statement is not filed by the Additional Filing Date
or
is not declared effective by the Commission prior to the Additional Outside
Date, or (ii) after the effective date of the Registration Statement (or any
additional registration statement), without regard for the reason thereunder
or
efforts therefor, such Registration Statement (or any additional registration
statement) ceases for any reason to be effective and available to the Purchasers
as to such Registrable Securities to which it is required to cover at any time
prior to the expiration of the Effectiveness Period or Additional Effectiveness
Period, as the case may be, for more than an aggregate of 30 Trading Days (which
need not be consecutive), or (iii) following the expiration of the Effectiveness
Period or any Additional Effectiveness Period, any portion of this Warrant
remains outstanding and/or unexercised, as to any Warrant Shares previously
covered by the respective existing and effective registration statement, then
in
any such case, a Purchaser may notify the Company in a Notice of Cashless
Exercise, attached as Exhibit
B
to the
Warrant, of its election to utilize cashless exercise under the Warrant relating
to the Warrant Shares that are not then covered by an existing and effective
registration statement (including the Registration Statement) (but only after
exercising for cash Warrant Shares that are then covered by an existing and
effective registration statement (including the Registration Statement)), in
which event the Company shall issue to the Purchaser the number of Warrant
Shares determined in accordance with the cashless exercise provisions of the
Warrant.
(d) Until
the
Registration Statement (or any additional registration statement) has become
effective under the Securities Act, each certificate representing the
Registrable Securities, and all certificates and instruments issued in transfer
thereof, shall be endorsed with the restrictive legend as set forth in Section
6.2 of the Purchase Agreement. Upon the effectiveness of the Registration
Statement (or any additional registration statement), the Company shall, upon
the request of any Purchaser, issue to such Purchaser a replacement certificate
without such legend in exchange for any such legended certificate (as to the
Shares) and issue to such Purchaser upon exercise of its Warrants a certificate
without such legend in any and all cases in accordance with the provisions
of
the Purchase Agreement.
(e) Each
Purchaser agrees to furnish to the Company a completed Questionnaire in the
form
attached to this Agreement as Annex
B
(a
“Selling
Holder Questionnaire”).
Not
less than four Trading Days prior to the filing of the Registration Statement
(or any additional registration statement) or any related Prospectus or any
amendment or supplement thereto, the Company shall furnish to each Purchaser
copies of the “Selling Stockholders” section of such document, the “Plan of
Distribution” and any risk factor contained in such document that addresses
specifically this transaction or the Selling Stockholders, as proposed to be
filed which documents will be subject to the review of such Purchaser. The
Company shall not file a registration statement (including the Registration
Statement), any Prospectus or any amendments or supplements thereto in which
the
“Selling Stockholder” section thereof differs from the disclosure received from
a Purchaser in its Selling Holder Questionnaire (as amended or supplemented).
The Company will not name the Purchaser as an “underwriter” in any registration
statement without the Purchaser’s prior written consent.
3
(f) The
Company shall (i) prepare and file with the Commission such amendments,
including post-effective amendments, to such Registration Statement (or any
additional registration statement) and the Prospectus used in connection
therewith as may be necessary to keep such Registration Statement (or any
additional registration statement) continuously effective as to the applicable
Registrable Securities for its Effectiveness Period or Additional Effectiveness
Period, as the case may be, and prepare and file with the Commission such
additional registration statements in order to register for resale under the
Securities Act all of the Registrable Securities; (ii) cause the related
Prospectus to be amended or supplemented by any required Prospectus supplement,
and as so supplemented or amended to be filed pursuant to Rule 424; (iii)
respond as promptly as reasonably possible to any comments received from the
Commission with respect to the Registration Statement (and any additional
registration statements) or any amendment thereto and, as promptly as reasonably
possible provide the Purchasers true and complete copies of all correspondence
from and to the Commission relating to such Registration Statement (and any
additional registration statements) that would not result in the disclosure
to
the Purchasers of material and non-public information concerning the Company;
and (iv) comply in all material respects with the provisions of the Securities
Act and the Exchange Act with respect to the Registration Statement (and any
additional registration statement) and the disposition of all Registrable
Securities covered by each registration statement (including the Registration
Statement).
(g) The
Company shall notify the Purchasers as promptly as reasonably possible (and,
in
the case of (i)(A) below, not less than three Trading Days prior to such filing
and, in the case of (v) below, not less than three Trading Days prior to the
financial statements in any registration statement (including the Registration
Statement) becoming ineligible for inclusion therein) and (if requested by
any
such Person) confirm such notice in writing no later than one Trading Day
following the day (i)(A) when a Prospectus or any Prospectus supplement or
post-effective amendment to any registration statement (including the
Registration Statement) is proposed to be filed; (B) when the Commission
notifies the Company whether there will be a "review" of any registration
statement (including the Registration Statement) and whenever the Commission
comments in writing on any registration statement (including the Registration
Statement) (the Company shall provide true and complete copies thereof and
all
written responses thereto to each of the Purchasers that pertain to the
Purchasers as a Selling Stockholder or to the Plan of Distribution, but not
information which the Company believes would constitute material and non-public
information); and (C) with respect to each registration statement (including
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 (including the Registration Statement) or Prospectus or for additional
information; (iii) of the issuance by the Commission of any stop order
suspending the effectiveness of a registration statement (including 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; and (v) of the occurrence of any event or passage of time that makes
the financial statements included in a registration statement (including the
Registration Statement) ineligible for inclusion therein or any statement made
in a registration statement (including 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 such
registration statement (including the Registration Statement), Prospectus or
other documents so that, in the case of such registration statement (including
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. Upon
the occurrence of any event contemplated by clause (v), as promptly as
reasonably possible, prepare a supplement or amendment, including a
post-effective amendment, to the affected registration statements (including
the
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, no
registration statement (including the Registration Statement) nor any Prospectus
will contain an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements therein,
in light of the circumstances under which they were made, not misleading.
4
(h) The
Company shall furnish to all Purchasers, at the Company’s expense, such number
of copies of any registration statement (including the Registration Statement)
and each amendment and supplement thereto, preliminary prospectus, final
prospectus and such other documents as such Purchasers may reasonably request
in
order to facilitate the public offering of their shares of Common
Stock.
(i) The
Company shall promptly, at the Company’s expense, use its reasonable best
efforts to register or qualify any shares of Common Stock covered by any
registration statement (including the Registration Statement) under such state
securities or blue sky laws of such jurisdictions as such Purchasers
participating in such registration may reasonably request, except that the
Company shall not for any purpose be required to execute a general consent
to
service of process or to qualify to do business as a foreign corporation in
any
jurisdiction where it is not so qualified.
(j) The
Company shall notify the Purchasers, promptly after it shall receive notice
thereof, of the date and time when any registration statement (including the
Registration Statement) and each post-effective amendment thereto has become
effective or a supplement to any prospectus forming a part of any registration
statement (including the Registration Statement) has been filed.
(k) The
Company shall advise the Purchasers, promptly after it shall receive notice
or
obtain knowledge thereof, of the issuance of any stop order by the Commission
suspending the effectiveness of any registration statement (including the
Registration Statement) or the initiation or threatening of any proceeding
for
the purpose and promptly use its best efforts to prevent the issuance of any
stop order or to obtain its withdrawal if such stop order should be
issued.
(l) All
registration-related fees and expenses incident to the performance of or
compliance with this Agreement incurred by the Company shall be borne by the
Company whether or not any Registrable Securities are sold pursuant to a
registration statement (including the Registration Statement).
(m) Neither
the Company nor any of its security holders (other than the Purchasers in such
capacity pursuant hereto) may include securities of the Company in the
Registration Statement other than the Registrable Securities, and the Company
shall not during the Effectiveness Period enter into any agreement providing
any
such right to any of its security holders to be so included.
(n) (i)
The
Company hereby agrees to indemnify and hold harmless each Purchaser, the
officers, directors, agents, investment advisors, partners, members and
employees of each of them, each Person who controls any such Purchaser (within
the meaning of Section 15 of the Securities Act or Section 20 of the Exchange
Act) and the officers, directors, agents and employees of each such controlling
Person from and against (collectively, a “Purchaser
Party”),
and
agrees to reimburse such Purchaser Party with respect to, any and all claims,
actions (actual or threatened), demands, losses, damages, liabilities, costs
and
expenses to which such Purchaser Party may become subject, insofar as such
claims, actions, demands, losses, damages, liabilities, costs or expenses are
caused by any untrue statement or alleged untrue statement of any material
fact
contained in the Registration Statement (or any additional registration
statements), any prospectus contained therein, or any amendment or supplement
thereto, or are caused by the omission or alleged omission to state therein
a
material fact required to be stated therein or necessary to make the statements
therein not misleading; provided,
however,
that
the Company shall not be liable in any such case to the extent that any such
claim, action, demand, loss, damage, liability, cost or expense is caused by
an
untrue statement or alleged untrue statement or omission or alleged omission
so
made in conformity with information furnished in writing by such Purchaser
for
use in the preparation thereof; provided further,
however,
that
this indemnity is subject to the condition that insofar as it relates to any
untrue statement, omission or alleged omission made in a preliminary prospectus
but eliminated or remedied in the final prospectus, such indemnity shall not
inure to the benefit of any Purchaser Party if a copy of the final prospectus
was not furnished to the Person asserting the claim, action, demand, loss,
damage or liability.
5
(ii)
Each
Purchaser, severally and not jointly, hereby agrees to indemnify and hold
harmless the Company, its officers, directors, agents and employees and each
Person who controls the Company within the meaning of the Securities Act, from
and against, and agrees to reimburse the Company, its officers, directors,
agents and employees and controlling Persons with respect to, any and all
claims, actions, demands, losses, damages, liabilities, costs or expenses to
which the Company, its officers, directors, agents and employees or such
controlling Persons may become subject under the Securities Act or otherwise,
insofar as such claims, actions, demands, losses, damages, liabilities, costs
or
expenses are caused by any untrue or alleged untrue statement of any material
fact contained in the Registration Statement, any prospectus contained or any
amendment or supplement thereto, or are caused by the omission or the alleged
omission to state therein a material required to be stated therein or necessary
to make the statements therein, in light of the circumstances in which they
were
made, not misleading, in each case to the extent, but only to the extent that
such untrue statement or alleged untrue statement or alleged untrue statement
or
omission or alleged omission was so made in reliance upon and in conformity
with
information furnished in writing by such Purchaser for use in the preparation
thereof. In no event shall the liability of any Purchaser hereunder be greater
in amount than the dollar amount of the net proceeds received by such Purchaser
upon the sale of the Registrable Securities giving rise to such indemnification
obligation.
(iii)
If
any claim shall be asserted against any person (an “Indemnified
Person”)
for
which such Person intends to seek indemnification pursuant to Section (m)(i)
or
(ii), as the case may be, such Indemnified Person shall give prompt written
notice to the Company or the Purchaser, as the case may be, of the nature of
such claim, but the failure to give such notice shall not relieve the Company
or
the Purchasers, as the case may be, of their obligations under this Section
(m)
unless it or they have been prejudiced substantially thereby. The Company or
the
Purchasers shall have the exclusive right to conduct, at their expense, through
counsel of its or their own choosing, which counsel is approved by the
Indemnified Person (which approval may not be unreasonably withheld), the
defense of any such claim, and may compromise or settle such claims solely
with
the prior written consent of Company or the Purchaser, as applicable (which
consent shall not be unreasonably withheld). Unless otherwise waived in writing
any such compromise or settlement shall include a full release of
liability.
(o) This
Agreement may be executed in any number of counterparts, each of which when
so
executed shall be deemed to be an original and, all of which taken together
shall constitute one and the same Agreement. In the event that any signature
is
delivered by facsimile transmission, such signature shall create a valid binding
obligation of the party executing (or on whose behalf such signature is
executed) the same with the same force and effect as if such facsimile signature
were the original thereof.
(p) All
questions concerning the construction, validity, enforcement and interpretation
of this Agreement shall be governed by and construed and enforced in accordance
with the internal laws of the State of New York, without regard to the
principles of conflicts of law thereof. Each party agrees that all Proceedings
concerning the interpretations, enforcement and defense of the transactions
contemplated by this Agreement (whether brought against a party hereto or its
respective Affiliates, employees or agents) will be commenced in the New York
Courts. Each party hereto hereby irrevocably submits to the exclusive
jurisdiction of the New York Courts for the adjudication of any dispute
hereunder or in connection herewith or with any transaction contemplated hereby
or discussed herein, and hereby irrevocably waives, and agrees not to assert
in
any Proceeding, any claim that it is not personally subject to the jurisdiction
of any New York Court, or that such Proceeding has been commenced in an improper
or inconvenient forum. Each party hereto hereby irrevocably waives personal
service of process and consents to process being served in any such Proceeding
by mailing a copy thereof via registered or certified mail or overnight delivery
(with evidence of delivery) to such party at the address in effect for 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 hereto hereby irrevocably waives, to the fullest
extent permitted by applicable law, any and all right to trial by jury in any
Proceeding arising out of or relating to this Agreement or the transactions
contemplated hereby. If either party shall commence a Proceeding to enforce
any
provisions of this Agreement, then the prevailing party in such Proceeding
shall
be reimbursed by the other party for its attorney’s fees and other costs and
expenses incurred with the investigation, preparation and prosecution of such
Proceeding.
6
The
Company hereby confirms that this Agreement has been duly authorized by its
Board of Directors.
If
the
foregoing is acceptable to you, please sign below where indicated and return
a
copy of this letter to the Company, whereupon this letter shall become a binding
agreement between us.
ODYNE
CORPORATION
By:
/s/ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇
▇▇▇▇
▇▇▇▇▇▇▇▇▇▇
Chief
Executive Officer
Agreed
to
and Accepted:
THE
QUERCUS TRUST
By:____________________________
Name:
Title:
SPINEL
FINANCE LLC
By:____________________________
Name:
Title:
7
Annex
A
Plan
of Distribution
The
Selling Stockholders and any of their pledgees, donees, transferees, assignees
and successors-in-interest may, from time to time, sell any or all of their
shares of Common Stock on any stock exchange, market or trading facility on
which the shares are traded or in private transactions. These sales may be
at
fixed or negotiated prices. The Selling Stockholders may use any one or more
of
the following methods when selling shares:
| · |
ordinary
brokerage transactions and transactions in which the broker-dealer
solicits Investors;
|
| · |
block
trades in which the broker-dealer will attempt to sell the shares
as agent
but may position and resell a portion of the block as principal to
facilitate the transaction;
|
| · |
purchases
by a broker-dealer as principal and resale by the broker-dealer for
its
account;
|
| · |
an
exchange distribution in accordance with the rules of the applicable
exchange;
|
| · |
privately
negotiated transactions;
|
| · |
to
cover short sales made after the date that this Registration Statement
is
declared effective by the Commission;
|
| · |
broker-dealers
may agree with the Selling Stockholders to sell a specified number of such
shares at a stipulated price per
share;
|
| · |
a
combination of any such methods of sale;
and
|
| · |
any
other method permitted pursuant to applicable
law.
|
The
Selling Stockholders may also sell shares under Rule 144 under the Securities
Act, if available, rather than under this prospectus.
Broker-dealers
engaged by the Selling Stockholders may arrange for other brokers-dealers to
participate in sales. Broker-dealers may receive commissions or discounts from
the Selling Stockholders (or, if any broker-dealer acts as agent for the
purchaser of shares, from the purchaser) in amounts to be negotiated. The
Selling Stockholders do not expect these commissions and discounts to exceed
what is customary in the types of transactions involved.
The
Selling Stockholders may from time to time pledge or grant a security interest
in some or all of the Shares owned by them and, if they default in the
performance of their secured obligations, the pledgees or secured parties may
offer and sell shares of Common Stock from time to time under this prospectus,
or under an amendment to this prospectus under Rule 424(b)(3) or other
applicable provision of the Securities Act of 1933 amending the list of selling
stockholders to include the pledgee, transferee or other successors in interest
as selling stockholders under this prospectus.
Upon
the
Company being notified in writing by a Selling Stockholder that any material
arrangement has been entered into with a broker-dealer for the sale of Common
Stock through a block trade, special offering, exchange distribution or
secondary distribution or a purchase by a broker or dealer, a supplement to
this
prospectus will be filed, if required, pursuant to Rule 424(b) under the
Securities Act, disclosing (i) the name of each such Selling Stockholder and
of
the participating broker-dealer(s), (ii) the number of shares involved, (iii)
the price at which such the shares of Common Stock were sold, (iv)the
commissions paid or discounts or concessions allowed to such broker-dealer(s),
where applicable, (v) that such broker-dealer(s) did not conduct any
investigation to verify the information set out or incorporated by reference
in
this prospectus, and (vi) other facts material to the transaction. In addition,
upon the Company being notified in writing by a Selling Stockholder that a
donee
or pledgee intends to sell more than 500 shares of Common Stock, a supplement
to
this prospectus will be filed if then required in accordance with applicable
securities law.
8
The
Selling Stockholders also may transfer the shares of Common Stock in other
circumstances, in which case the transferees, pledgees or other successors
in
interest will be the selling beneficial owners for purposes of this
prospectus.
The
Selling Stockholders and any broker-dealers or agents that are involved in
selling the shares may be deemed to be "underwriters" within the meaning of
the
Securities Act in connection with such sales. In such event, any commissions
received by such broker-dealers or agents and any profit on the resale of the
shares purchased by them may be deemed to be underwriting commissions or
discounts under the Securities Act. Discounts, concessions, commissions and
similar selling expenses, if any, that can be attributed to the sale of
Securities will be paid by the Selling Stockholder and/or the purchasers. Each
Selling Stockholder has represented and warranted to the Company that it
acquired the securities subject to this Registration Statement in the ordinary
course of such Selling Stockholder’s business and, at the time of its purchase
of such securities such Selling Stockholder had no agreements or understandings,
directly or indirectly, with any person to distribute any such securities.
The
Company has advised each Selling Stockholder that it may not use shares
registered on this Registration Statement to cover short sales of Common Stock
made prior to the date on which this Registration Statement shall have been
declared effective by the Commission. If a Selling Stockholder uses this
prospectus for any sale of the Common Stock, it will be subject to the
prospectus delivery requirements of the Securities Act. The Selling Stockholders
will be responsible to comply with the applicable provisions of the Securities
Act and Exchange Act, and the rules and regulations thereunder promulgated,
including, without limitation, Regulation M, as applicable to such Selling
Stockholders in connection with resales of their respective shares under this
Registration Statement.
The
Company is required to pay all fees and expenses incident to the registration
of
the shares, but the Company will not receive any proceeds from the sale of
the
Common Stock. The Company has agreed to indemnify the Selling Stockholders
against certain losses, claims, damages and liabilities, including liabilities
under the Securities Act.
9
Annex
B
ODYNE
CORPORATION
Selling
Securityholder Notice and Questionnaire
The
undersigned beneficial owner of common stock (the “Common
Stock”),
of
Odyne Corporation, a Delaware corporation (the “Company”),
understands that the Company has filed or intends to file with the Securities
and Exchange Commission (the “Commission”)
a
Registration Statement for the registration and resale of the Registrable
Securities, in accordance with the terms of the Registration Rights Agreement,
dated as of March __, 2007 (the “Registration
Rights Agreement”),
among
the Company and the Purchasers named therein. A copy of the Registration Rights
Agreement is available from the Company upon request at the address set forth
below. All capitalized terms used and not otherwise defined herein shall have
the meanings ascribed thereto in the Registration Rights Agreement.
The
undersigned hereby provides the following information to the Company and
represents and warrants that such information is accurate:
QUESTIONNAIRE
| 1. Name. | |
|
(a)
|
Full
Legal Name of Selling Securityholder
|
|
(b)
|
Full
Legal Name of Registered Holder (if not the same as (a) above) through
which Registrable Securities listed in Item 3 below are
held:
|
|
(c)
|
Full
Legal Name of Natural Control Person (which means a natural person
who
directly or indirectly alone or with others has power to vote or
dispose
of the securities covered by the questionnaire):
|
10
| 2. Address for Notices to Selling Securityholder: | |
|
Telephone:
|
|
|
Fax:
|
|
|
Contact
Person:
|
|
| 3. Beneficial Ownership of Registrable Securities: | |
|
Type
and Principal Amount of Registrable Securities beneficially
owned:
|
|
4.
Broker-Dealer Status:
|
(a)
|
Are
you a broker-dealer?
|
Yes
¨ No
¨
|
Note:
|
If
yes, the Commission’s staff has indicated that you should be identified as
an underwriter in the Registration
Statement.
|
|
(b)
|
Are
you an affiliate of a
broker-dealer?
|
Yes
¨ No
¨
|
(c)
|
If
you are an affiliate of a broker-dealer, do you certify that you
bought
the Registrable Securities in the ordinary course of business, and
at the
time of the purchase of the Registrable Securities to be resold,
you had
no agreements or understandings, directly or indirectly, with any
person
to distribute the Registrable
Securities?
|
Yes
¨ No
¨
11
|
Note:
|
If
no, the Commission’s staff has indicated that you should be identified as
an underwriter in the Registration
Statement.
|
5.
Beneficial Ownership of Other Securities of the Company Owned by the Selling
Securityholder.
Except
as set forth below in this Item 5, the undersigned is not the beneficial or
registered owner of any securities of the Company other than the Registrable
Securities listed above in Item 3.
|
Type
and Amount of Other Securities beneficially owned by the Selling
Securityholder:
|
|
6.
Relationships with the Company:
Except
as set forth below, neither the undersigned nor any of its affiliates, officers,
directors or principal equity holders (owners of 5% of more of the equity
securities of the undersigned) has held any position or office or has had any
other material relationship with the Company (or its predecessors or affiliates)
during the past three years.
State
any
exceptions here:
7.
The
Company has advised each Selling Stockholder that it may not use shares
registered on the Registration Statement to cover short sales of Common Stock
made prior to the date on which the Registration Statement is declared effective
by the Commission, in accordance with 1997 Securities and Exchange Commission
Manual of Publicly Available Telephone Interpretations Section A.65. If a
Selling Stockholder uses the prospectus for any sale of the Common Stock, it
will be subject to the prospectus delivery requirements of the Securities Act.
The Selling Stockholders will be responsible to comply with the applicable
provisions of the Securities Act and Exchange Act, and the rules and regulations
thereunder promulgated, including, without limitation, Regulation M, as
applicable to such Selling Stockholders in connection with resales of their
respective shares under the Registration Statement.
The
undersigned agrees to promptly notify the Company of any inaccuracies or changes
in the information provided herein that may occur subsequent to the date hereof
and prior to the Effective Date for the Registration Statement.
12
By
signing below, the undersigned consents to the disclosure of the information
contained herein in its answers to Items 1 through 6 and the inclusion of such
information in the Registration Statement and the related prospectus. The
undersigned understands that such information will be relied upon by the Company
in connection with the preparation or amendment of the Registration Statement
and the related prospectus.
IN
WITNESS WHEREOF the undersigned, by authority duly given, has caused this Notice
and Questionnaire to be executed and delivered either in person or by its duly
authorized agent.
| Dated: | Beneficial Owner: |
|
By:
Name:
Title:
|
PLEASE
FAX A COPY OF THE COMPLETED AND EXECUTED NOTICE AND QUESTIONNAIRE, AND RETURN
THE ORIGINAL BY OVERNIGHT MAIL, TO:
Odyne
Corporation
▇▇
▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇ ▇
▇▇▇▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention:
▇▇. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
President
and Chief Operating Officer
13