-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, UhHCJ6BFK4znFB0E1xP1VB3++3zfEiQHPv//JaC7DQHJvR5JXV5o1nhKilkwwlxj S3WTaYxOTB89XmqXZ07p2w== 0001144204-08-018521.txt : 20080331 0001144204-08-018521.hdr.sgml : 20080331 20080328192443 ACCESSION NUMBER: 0001144204-08-018521 CONFORMED SUBMISSION TYPE: 8-K PUBLIC DOCUMENT COUNT: 6 CONFORMED PERIOD OF REPORT: 20080327 ITEM INFORMATION: Entry into a Material Definitive Agreement ITEM INFORMATION: Unregistered Sales of Equity Securities ITEM INFORMATION: Financial Statements and Exhibits FILED AS OF DATE: 20080331 DATE AS OF CHANGE: 20080328 FILER: COMPANY DATA: COMPANY CONFORMED NAME: ODYNE CORP CENTRAL INDEX KEY: 0001346377 STANDARD INDUSTRIAL CLASSIFICATION: MOTOR VEHICLE PARTS & ACCESSORIES [3714] IRS NUMBER: 134050047 FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: 8-K SEC ACT: 1934 Act SEC FILE NUMBER: 333-130768 FILM NUMBER: 08721145 BUSINESS ADDRESS: STREET 1: 89 CABOT COURT STREET 2: SUITE L CITY: HAUPPAUGE STATE: NY ZIP: 11788 BUSINESS PHONE: 631-750-1010 MAIL ADDRESS: STREET 1: 89 CABOT COURT STREET 2: SUITE L CITY: HAUPPAUGE STATE: NY ZIP: 11788 FORMER COMPANY: FORMER CONFORMED NAME: Technology Integration Group, Inc. DATE OF NAME CHANGE: 20051208 8-K 1 v108510_8k.htm
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
_____________

FORM 8-K

CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934

Date of report (Date of earliest event reported) March 27, 2008                                                                                                
  
 Odyne Corporation
(Exact Name of Registrant as Specified in Charter)
 
 Delaware
  333-130768
   13-4050047 
 (State or Other Jurisdiction
of Incorporation)
 (Commission
File Number)
  (IRS Employer 
Identification No.)
 
 89 Cabot Court, Suite L, Hauppauge, New York 
  
 11788
(Address of Principal Executive Offices)  
  
(Zip Code)
 
Registrant’s telephone number, including area code: (631) 750-1010
 
 (Former Name or Former Address, if Changed Since Last Report)
 
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:

o Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
 
o Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
 
o Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
 
o Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act  (17 CFR 240.13e-4(c))
 
 
CURRENT REPORT ON FORM 8-K
 
ODYNE CORPORATION

March 27, 2008
 
Item 1.01 Entry into a Material Definitive Agreement
 
On March 27, 2008, Odyne Corporation entered into a Securities Purchase Agreement (the “Purchase Agreement”) with The Quercus Trust and Spinel Finance LLC (the “Purchasers”) for the private placement (the “Private Placement”) of a total of 11,666,666 shares (the “Shares”) of Odyne’s common stock, par value $.001 per share (the “Common Stock”), at a price of $.60 per share, and five-year warrants to purchase up to a total of 11,666,666 shares of Common Stock, at an exercise price of $.72 per share, resulting in aggregate gross cash proceeds to Odyne of $7,000,000 and approximate net cash proceeds to Odyne of $6,370,000. The transaction closed simultaneously with the execution of the Purchase Agreement on March 27, 2008.
 
vFinance Investments, Inc., the exclusive placement agent in the Private Placement, received a cash fee equal to 9% of the aggregate gross proceeds of the Private Placement and a warrant to purchase such number of shares of Common Stock equal to 9% of the aggregate Shares sold in the Private Placement, and will receive a warrant exercise fee in the amount of 2% of the exercise price of the warrants paid by the Purchasers.
 
Pursuant to the terms of a Registration Rights Agreement with the Purchasers, the Company has agreed to file a registration statement (the “Registration Statement”) with the U.S. Securities and Exchange Commission no later than 150 calendar days following March 27, 2008 (the closing date of the Private Placement), covering the resale of the Shares and Warrant Shares, and to use all reasonable best efforts to cause the Registration Statement to be declared effective within 240 calendar days after the closing date, and to remain continuously effective for three years after the closing date. The Purchase Agreement also contains representations and warranties by the Company and each Purchaser typical of transactions of this type, as well as the right of the Purchasers to participate in up to 100% of any subsequent financing by the Company for one year after the closing date.
 
The form of each of the Warrant, Purchase Agreement and Registration Rights Agreement is filed herewith as Exhibit 4.1, Exhibit 10.1 and Exhibit 10.2, respectively, and is incorporated in its entirety herein by this reference. The Company’s press release announcing the completion of the Private Placement is attached as Exhibit 99.1 to this current report on Form 8-K.
 
Item 3.02. Unregistered Sales of Equity Securities.
 
 
The information disclosed in Item 1.01 of this current report on Form 8-K is incorporated by reference into this Item 3.02. The sales and issuances of the securities under the Purchase Agreement to the Purchasers were determined to be exempt from registration under the Securities Act in reliance on Section 4(2) of the Securities Act and Rule 506 of Regulation D promulgated thereunder, as transactions by an issuer not involving a public offering. Each of the Purchasers represented that they were “accredited investors,” as that term is defined in Regulation D, and that they were acquiring such securities for investment purposes only and not with a view to or for sale in connection with any distribution thereof.
 
Item 9.01. Financial Statements and Exhibits.
 
(d) Exhibits.
 
Exhibit
Number          
Exhibit Description
   
4.1
Form of Warrant to Purchase Common Stock, dated March 27, 2008, of Odyne Corporation issued to The Quercus Trust and Spinel Finace LLC.
   
10.1
Securities Purchase Agreement, dated as of March 27, 2008, between Odyne Corporation and The Quercus Trust and Spinel Finance LLC.
   
10.2
Registration Rights Agreement, dated March 27, 2008, between Odyne Corporation and The Quercus Trust and Spinel Finance LLC.
   
99.1
Press release issued by Odyne Corporation on March 28, 2008.
   
     
 
 
SIGNATURES

Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
 
 
     
  ODYNE CORPORATION
 
 		  
 		  
 
Date: March 28, 2008  By:   Alan Tannenbaum
 
Alan Tannenbaum
Chief Executive Officer
   

 
 EX-4.1 2 v108510_ex4-1.htm

ODYNE CORPORATION
Warrant No. 2008-___
 
WARRANT TO PURCHASE COMMON STOCK
 
VOID AFTER 5:00 P.M., EASTERN TIME,
ON THE EXPIRATION DATE
 
NEITHER THESE SECURITIES NOR THE SECURITIES ISSUABLE UPON EXERCISE OF THESE SECURITIES HAVE BEEN REGISTERED WITH THE U.S. SECURITIES AND EXCHANGE COMMISSION OR THE SECURITIES COMMISSION OF ANY STATE IN RELIANCE UPON AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR PURSUANT TO AN AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS AS EVIDENCED BY A LEGAL OPINION OF COUNSEL TO THE TRANSFEROR TO SUCH EFFECT, THE SUBSTANCE OF WHICH SHALL BE REASONABLY ACCEPTABLE TO THE COMPANY.
 
FOR VALUE RECEIVED, Odyne Corporation, a Delaware corporation (the “Company”), hereby agrees to sell upon the terms and on the conditions hereinafter set forth, at any time commencing on the date hereof but no later than 5:00 p.m., Eastern Time, on March __, 2013 (the “Expiration Date”), to _______________________, or his, her or its registered assigns (the “Holder”), under the terms as hereinafter set forth, ____________________ (____________) fully paid and non-assessable shares of the Company’s Common Stock, par value $.001 per share (the “Common Stock”), at a purchase price per share of $0.72 (the “Warrant Price”), pursuant to the terms and conditions set forth in this warrant (this “Warrant”). The number of shares of Common Stock issued upon exercise of this Warrant (“Warrant Shares”) and the Warrant Price are subject to adjustment in certain events as hereinafter set forth.
 
This Warrant is one of a series of the Company’s Warrants to purchase Common Stock issued pursuant to the Securities Purchase Agreement between the Company and the Holder dated of even date herewith (the “Purchase Agreement”). Capitalized terms used but not otherwise defined in this Warrant shall have the meaning ascribed to such term in the Purchase Agreement or, as to Section 1(a), in the Registration Rights Agreement between the Company and the Holder dated of even date herewith.
 
1.
Exercise of Warrant.
 
(a) The Holder may exercise this Warrant according to the terms and conditions set forth herein by delivering to the Company, at the address set forth in Section 9 prior to 5:00 p.m., Eastern Time, on the Expiration Date (i) this Warrant, (ii) the Subscription Form attached hereto as Exhibit A (the “Subscription Form”) or the Notice of Cashless Exercise Form attached hereto as Exhibit B (the “Cashless Exercise Form”) (in either case having then been duly executed by the Holder) and (iii) if not cashless, cash, a certified check or a bank draft in payment of the purchase price, in lawful money of the United States of America, for the number of Warrant Shares specified in the Subscription Form. If for any reason or for no reason whatsoever, either (A) 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 (B) 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 Holders 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 (C) 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 Holder may notify the Company, by its delivery of the Cashless Exercise Form, of its election to utilize cashless exercise under this 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), in which event the Company shall issue to the Holder the number of Warrant Shares determined as follows in accordance with the provisions of this Warrant:
 
 
X = Y [(A-B)/A]

where:

X = the number of Warrant Shares to be issued to the Holder.

Y = the number of Warrant Shares with respect to which this Warrant is being exercised.

A = the average of the closing prices for the five Trading Days immediately prior to (but not including) the Date of Exercise.

B = the Warrant Price.

For purposes of Rule 144 promulgated under the Securities Act, it is intended, understood and acknowledged that the Warrant Shares issued in a cashless exercise transaction shall be deemed to have been acquired by the Holder, and the holding period for the Warrant Shares shall be deemed to have commenced, on the date the Warrant was originally issued.

 
(b) This Warrant may be exercised in whole or in part so long as any exercise in part hereof would not involve the issuance of fractional Warrant Shares. If exercised in part, the Company shall deliver to the Holder a new Warrant, identical in form to this Warrant, in the name of the Holder, evidencing the right to purchase the number of Warrant Shares as to which this Warrant has not been exercised, which new Warrant shall be signed by the Chief Executive Officer or President of the Company. The term Warrant as used herein shall include any subsequent Warrant issued as provided herein.
 
(c) No fractional Warrant Shares or scrip representing fractional Warrant Shares shall be issued upon the exercise of this Warrant, but the number of shares issuable shall be rounded to the nearest whole share
 
(d) In the event of any exercise of the rights represented by this Warrant, the Company shall promptly (but in no event later than three Trading Days after the Date of Exercise (as defined herein)) issue and deliver to the Holder, a certificate for the Warrant Shares issuable upon such exercise, which, unless otherwise required by the Purchase Agreement and applicable law, shall be free of restrictive legends. The Company shall, upon request of the Holder and subsequent to the date on which a registration statement covering the resale of the Warrant Shares has been declared effective by the SEC, use its reasonable best efforts to deliver Warrant Shares hereunder electronically through the Depository Trust Corporation or another established clearing corporation performing similar functions, if available, provided, that, the Company may, but will not be required to change its transfer agent if its current transfer agent cannot deliver Warrant Shares electronically through the Depository Trust Corporation. A "Date of Exercise" means the date on which the Holder shall have delivered to the Company: (i) the Subscription Form or Cashless Exercise Form, as the case may be, appropriately completed and duly signed and (ii) if not a cashless exercise, payment of the Warrant Price for the number of Warrant Shares so indicated by the Holder to be purchased. If by the third Trading Day after a Date of Exercise the Company fails to deliver the required number of Warrant Shares in the manner required pursuant to this Section, then the Holder will have the right to rescind such exercise. If by the third Trading Day after a Date of Exercise the Company fails to deliver the required number of Warrant Shares in the manner required pursuant to this Section, and if after such third Trading Day and prior to the receipt of such Warrant Shares, the Holder purchases (in an open market transaction or otherwise) shares of Common Stock to deliver in satisfaction of a sale by the Holder of the Warrant Shares which the Holder anticipated receiving upon such exercise (a "Buy-In"), then the Company shall pay in cash to the Holder the amount by which (x) the Holder's total purchase price (including brokerage commissions, if any) for the shares of Common Stock so purchased exceeds (y) the amount obtained by multiplying (A) the number of Warrant Shares that the Company was required to deliver to the Holder in connection with the exercise at issue by (B) the closing bid price of the Common Stock on the Date of Exercise. The Holder shall provide the Company written notice indicating the amounts payable to the Holder in respect of the Buy-In. The Company's obligations to issue and deliver Warrant Shares in accordance with the terms hereof are absolute and unconditional, irrespective of any action or inaction by the Holder to enforce the same, any waiver or consent with respect to any provision hereof, the recovery of any judgment against any Person or any action to enforce the same, or any setoff, counterclaim, recoupment, limitation or termination, or any breach or alleged breach by the Holder or any other Person of any obligation to the Company or any violation or alleged violation of law by the Holder or any other Person, and irrespective of any other circumstance which might otherwise limit such obligation of the Company to the Holder in connection with the issuance of Warrant Shares. Nothing herein shall limit a Holder's right to pursue any other remedies available to it hereunder, at law or in equity including, without limitation, a decree of specific performance and/or injunctive relief with respect to the Company's failure to timely deliver certificates representing Warrant Shares upon exercise of the Warrant as required pursuant to the terms hereof. The person or entity in whose name any certificate for Warrant Shares is issued upon exercise of the rights represented by this Warrant shall for all purposes be deemed to have become the holder of record of such Warrant Shares immediately prior to the close of business on the date on which the Warrant was surrendered and payment of the Warrant Price and any applicable taxes was made, irrespective of the date of delivery of such certificate, except that, if the date of such surrender and payment is a date when the stock transfer books of the Company are closed, such person shall be deemed to have become the holder of such shares at the opening of business on the next succeeding date on which the Company’s stock transfer books are open. Except as provided in Section 4 hereof, the Company shall pay any and all documentary stamp or similar issue or transfer taxes payable in respect of the issue or delivery of Warrant Shares on exercise of this Warrant.
 
 
2.
Disposition of Warrant Shares and Warrant.
 
2
 
(a) The Holder hereby agrees that he, she or it will not sell, transfer, pledge or otherwise dispose of (collectively, “Transfer”) all or any part of this Warrant unless and until he, she or it shall have first have given notice to the Company describing such Transfer and furnished to the Company (i) a statement from the transferee, whereby the transferee represents and warrants that he, she, or it is acquiring this Warrant and will acquire Warrant Shares, as applicable, for investment for his, her or its own account, with no present intention of dividing his, her or its participation with others or reselling or otherwise distributing this Warrant or Warrant Shares, as applicable, and either (ii) an opinion, reasonably satisfactory to counsel for the Company, of counsel (skilled in securities matters, selected by the Holder and reasonably satisfactory to the Company) to the effect that the proposed Transfer may be made without registration under the Act and without registration or qualification under any state law, or (iii) an interpretative letter from the U.S. Securities and Exchange Commission to the effect that no enforcement action will be recommended if the proposed sale or transfer is made without registration under the Act.
 
(b) If, at the time of issuance of Warrant Shares, no registration statement is in effect with respect to such shares under applicable provisions of the Act, the Company may, at its election, require that (i) the Holder provide written reconfirmation of the Holder’s investment intent to the Company, and (ii) any stock certificate evidencing Warrant Shares shall bear legends reading substantially as follows:
 
THESE SECURITIES HAVE NOT BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION OR THE SECURITIES COMMISSION OF ANY STATE IN RELIANCE UPON AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR PURSUANT TO AN AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS AS EVIDENCED BY A LEGAL OPINION OF COUNSEL TO THE TRANSFEROR TO SUCH EFFECT, THE SUBSTANCE OF WHICH SHALL BE REASONABLY ACCEPTABLE TO THE COMPANY.
 
In addition, so long as the foregoing legend may remain on any stock certificate evidencing Warrant Shares, the Company may maintain appropriate “stop transfer” orders with respect to such certificates and the shares represented thereby on its books and records and with those to whom it may delegate registrar and transfer functions.
 
3.     Reservation of Shares. The Company hereby agrees that at all times there shall be reserved for issuance upon the exercise of this Warrant such number of shares of the Common Stock as shall be required for issuance upon exercise of this Warrant free from preemptive rights or any other contingent purchase rights of Persons other than the Holder (taking into account the adjustments and restrictions of Section 5). The Company further agrees that all Warrant Shares will be duly authorized and will, upon issuance and payment of the exercise price therefor, be validly issued, fully paid and non-assessable, free from all taxes, liens, charges and encumbrances with respect to the issuance thereof, other than taxes, if any, in respect of any transfer occurring contemporaneously with such issuance and other than transfer restrictions imposed by federal and state securities laws.
 
4.     Exchange, Transfer or Assignment of Warrant. Subject to Section 2, this Warrant is exchangeable, without expense, at the option of the Holder, upon presentation and surrender hereof to the Company or at the office of its stock transfer agent, if any, for other warrants of the Company of different denominations, entitling the Holder or Holders thereof to purchase in the aggregate the same number of Warrant Shares purchasable hereunder and otherwise on identical terms. Subject to Section 2, upon surrender of this Warrant to the Company or at the office of its stock transfer agent, if any, with the Assignment Form attached hereto as Exhibit C (the “Assignment Form”) duly executed and funds sufficient to pay any transfer tax, the Company shall, without charge, execute and deliver a new warrant on identical terms in the name of the assignee named in the Assignment Form and this Warrant shall promptly be canceled. Subject to Section 2, this Warrant may be divided or combined with other Warrants that carry the same rights upon presentation hereof at the office of the Company or at the office of its stock transfer agent, if any, together with a written notice specifying the names and denominations in which new warrants are to be issued and signed by the Holder hereof.
 
3
 
5.     Capital Adjustments. The Warrant Price and number of Warrant Shares issuable upon exercise of this Warrant are subject to adjustment from time to time as set forth in this Section 5.
 
(a) Stock Dividends and Splits. If the Company, at any time while this Warrant is outstanding, (i) pays a stock dividend on its Common Stock or otherwise makes a distribution on any class of capital stock that is payable in shares of Common Stock, (ii) subdivides outstanding shares of Common Stock into a larger number of shares, or (iii) combines outstanding shares of Common Stock into a smaller number of shares, then in each such case the Warrant Price shall be multiplied by a fraction of which the numerator shall be the number of shares of Common Stock outstanding immediately before such event and of which the denominator shall be the number of shares of Common Stock outstanding immediately after such event. Any adjustment made pursuant to clause (i) of this paragraph shall become effective immediately after the record date for the determination of stockholders entitled to receive such dividend or distribution, and any adjustment pursuant to clause (ii) or (iii) of this paragraph shall become effective immediately after the effective date of such subdivision or combination.
 
(b) Fundamental Transactions. If, at any time while this Warrant is outstanding, there is a Fundamental Transaction, then the Holder shall have the right thereafter to receive, upon exercise of this Warrant, the same amount and kind of securities, cash or property as it would have been entitled to receive upon the occurrence of such Fundamental Transaction if it had been, immediately prior to such Fundamental Transaction, the holder of the number of Warrant Shares then issuable upon exercise in full of this Warrant (the "Alternate Consideration"). For purposes of any such exercise, the determination of the Warrant Price shall be appropriately adjusted to apply to such Alternate Consideration based on the amount of Alternate Consideration issuable in respect of one share of Common Stock in such Fundamental Transaction, and the Company shall apportion the Warrant Price among the Alternate Consideration in a reasonable manner reflecting the relative value of any different components of the Alternate Consideration. If holders of Common Stock are given any choice as to the securities, cash or property to be received in a Fundamental Transaction, then the Holder shall be given the same choice as to the Alternate Consideration it receives upon any exercise of this Warrant following such Fundamental Transaction. The terms of any agreement pursuant to which a Fundamental Transaction is effected shall include terms requiring any such successor or surviving entity to comply with the provisions of this paragraph (b) and insuring that the Warrant will be similarly adjusted upon any subsequent transaction analogous to a Fundamental Transaction. For purposes hereof "Fundamental Transaction" means any of the following: (1) the Company effects any merger or consolidation of the Company with or into another Person, (2) the Company effects any sale of all or substantially all of its assets in one or a series of related transactions, (3) any tender offer or exchange offer (whether by the Company or another Person) is completed pursuant to which holders of Common Stock are permitted to tender or exchange their shares for other securities, cash or property, or (4) the Company effects any reclassification of the Common Stock or any compulsory share exchange pursuant to which the Common Stock is effectively converted into or exchanged for other securities, cash or property.
 
(c) Subsequent Equity Sales.
 
(i) If the Company, at any time while this Warrant is outstanding, issues shares of Common Stock or Common Stock Equivalents entitling any Person to acquire shares of Common Stock, at a price per share less than the Warrant Price (if the holder of the Common Stock or Common Stock Equivalent so issued shall at any time, whether by operation of purchase price adjustments, reset provisions, floating conversion, exercise or exchange prices or otherwise, or due to warrants, options or rights issued in connection with such issuance, be entitled to receive shares of Common Stock at a price less than the Warrant Price, such issuance shall be deemed to have occurred for less than the Warrant Price), then, the Warrant Price shall be reduced to equal such lower price, but in no event shall the Warrant Price be less than $0.60 per share and the number of Warrant Shares which the Holder may acquire under this Warrant will not be effected thereby. Such adjustment shall be made whenever such Common Stock or Common Stock Equivalents are issued. The Company shall notify the Holder in writing, no later than the second Trading Day following the issuance of any Common Stock or Common Stock Equivalent subject to this Section, indicating therein the applicable issuance price, or of any applicable reset price, exchange price, conversion price and other pricing terms.
 
4
 
(ii) For purposes of this subsection 5(c), the following subsections (5)(ii)(l) to (5)(ii)(6) shall also be applicable:
 
(1) Issuance of Rights or Options. In case at any time the Company shall in any manner grant (directly and not by assumption in a merger or otherwise) any warrants or other rights to subscribe for or to purchase, or any options for the purchase of, Common Stock or any stock or security convertible into or exchangeable for Common Stock (such warrants, rights or options being called “Options” and such convertible or exchangeable stock or securities being called “Convertible Securities”) whether or not such Options or the right to convert or exchange any such Convertible Securities are immediately exercisable, and the price per share for which Common Stock is issuable upon the exercise of such Options or upon the conversion or exchange of such Convertible Securities (determined by dividing (i) the sum (which sum shall constitute the applicable consideration) of (x) the total amount, if any, received or receivable by the Company as consideration for the granting of such Options, plus (y) the aggregate amount of additional consideration payable to the Company upon the exercise of all such Options, plus (z), in the case of such Options which relate to Convertible Securities, the aggregate amount of additional consideration, if any, payable upon the issue or sale of such Convertible Securities and upon the conversion or exchange thereof, by (ii) the total maximum number of shares of Common Stock issuable upon the exercise of such Options or upon the conversion or exchange of all such Convertible Securities issuable upon the exercise of such Options) shall be less than the Warrant Price in effect immediately prior to the time of the granting of such Options, then the total number of shares of Common Stock issuable upon the exercise of such Options or upon conversion or exchange of the total amount of such Convertible Securities issuable upon the exercise of such Options shall be deemed to have been issued for such price per share as of the date of granting of such Options or the issuance of such Convertible Securities and thereafter shall be deemed to be outstanding for purposes of adjusting the Warrant Price. Except as otherwise provided in subsection 5(c)(ii)(3), no adjustment of the Warrant Price shall be made upon the actual issue of such Common Stock or of such Convertible Securities upon exercise of such Options or upon the actual issue of such Common Stock upon conversion or exchange of such Convertible Securities.
 
(2) Issuance of Convertible Securities. In case the Company shall in any manner issue (directly and not by assumption in a merger or otherwise) or sell any Convertible Securities, whether or not the rights to exchange or convert any such Convertible Securities are immediately exercisable, and the price per share for which Common Stock is issuable upon such conversion or exchange (determined by dividing (i) the sum (which sum shall constitute the applicable consideration) of (x) the total amount received or receivable by the Company as consideration for the issue or sale of such Convertible Securities, plus (y) the aggregate amount of additional consideration, if any, payable to the Company upon the conversion or exchange thereof, by (ii) the total number of shares of Common Stock issuable upon the conversion or exchange of all such Convertible Securities) shall be less than the Warrant Price in effect immediately prior to the time of such issue or sale, then the total maximum number of shares of Common Stock issuable upon conversion or exchange of all such Convertible Securities shall be deemed to have been issued for such price per share as of the date of the issue or sale of such Convertible Securities and thereafter shall be deemed to be outstanding for purposes of adjusting the Warrant Price, provided that (a) except as otherwise provided in subsection 5(c)(ii)(3), no adjustment of the Warrant Price shall be made upon the actual issuance of such Common Stock upon conversion or exchange of such Convertible Securities and (b) no further adjustment of the Warrant Price shall be made by reason of the issue or sale of Convertible Securities upon exercise of any Options to purchase any such Convertible Securities for which adjustments of the Warrant Price have been made pursuant to the other provisions of subsection 5(c).
 
5
 
(3) Change in Option Price or Conversion Rate. Upon the happening of any of the following events, namely, if the purchase price provided for in any Option referred to in subsection 5(c)(ii)(l) hereof, the additional consideration, if any, payable upon the conversion or exchange of any Convertible Securities referred to in subsections 5(c)(ii)(l) or 5(c)(ii)(2), or the rate at which Convertible Securities referred to in subsections 5(c)(ii)(l) or 5(c)(ii)(2) are convertible into or exchangeable for Common Stock shall change at any time (including, but not limited to, changes under or by reason of provisions designed to protect against dilution), the Warrant Price in effect at the time of such event shall forthwith be readjusted to the Warrant Price which would have been in effect at such time had such Options or Convertible Securities still outstanding provided for such changed purchase price, additional consideration or conversion rate, as the case may be, at the time initially granted, issued or sold. On the termination of any Option for which any adjustment was made pursuant to this subsection 5(c) or any right to convert or exchange Convertible Securities for which any adjustment was made pursuant to this subsection 5(c) (including without limitation upon the redemption or purchase for consideration of such Convertible Securities by the Company), the Warrant Price then in effect hereunder shall forthwith be changed to the Warrant Price which would have been in effect at the time of such termination had such Option or Convertible Securities, to the extent outstanding immediately prior to such termination, never been issued.
 
(4) Stock Dividends. Subject to the provisions of this Section 5(c), in case the Company shall declare a dividend or make any other distribution upon any stock of the Company (other than the Common Stock) payable in Common Stock, Options or Convertible Securities, then any Common Stock, Options or Convertible Securities, as the case may be, issuable in payment of such dividend or distribution shall be deemed to have been issued or sold without consideration.
 
(5) Consideration for Stock. In case any shares of Common Stock, Options or Convertible Securities shall be issued or sold for cash, the consideration received therefor shall be deemed to be the gross amount received by the Company therefor, provided that all deductions therefrom of any expenses incurred or any cash underwriting commissions or concessions paid or allowed by the Company in connection therewith shall not exceed 15% of the aggregate consideration received. In case any shares of Common Stock, Options or Convertible Securities shall be issued or sold for a consideration other than cash, the amount of the consideration other than cash received by the Company shall be deemed to be the fair value of such consideration as determined in good faith by the Board of Directors of the Company, after deduction of any expenses incurred or any cash underwriting commissions or concessions paid or allowed by the Company in connection therewith as long as such expenses, cash commissions or concessions do not exceed 15% in the aggregate. In case any Options shall be issued in connection with the issue and sale of other securities of the Company, together comprising one integral transaction in which no specific consideration is allocated to such Options by the parties thereto, such Options shall be deemed to have been issued for such consideration as determined in good faith by the Board of Directors of the Company. If Common Stock, Options or Convertible Securities shall be issued or sold by the Company and, in connection therewith, other Options or Convertible Securities (the “Additional Rights”) are issued, then the consideration received or deemed to be received by the Company shall be reduced by the fair market value of the Additional Rights (as determined using the Black-Scholes option pricing model or another method mutually agreed to by the Company and the Holder). The Board of Directors of the Company shall respond promptly, in writing, to an inquiry by the Holders as to the fair market value of the Additional Rights. In the event that the Board of Directors of the Company and the Required Holders are unable to agree upon the fair market value of the Additional Rights, the Company and the Required Holders shall jointly select an appraiser, who is experienced in such matters. The decision of such appraiser shall be final and conclusive, and the cost of such appraiser shall be borne evenly by the Company and the Holders.
 
6
 
(6) Record Date. In case the Company shall take a record of the holders of its Common Stock for the purpose of entitling them (i) to receive a dividend or other distribution payable in Common Stock, Options or Convertible Securities or (ii) to subscribe for or purchase Common Stock, Options or Convertible Securities, then such record date shall be deemed to be the date of the issue or sale of the shares of Common Stock deemed to have been issued or sold upon the declaration of such dividend or the making of such other distribution or the date of the granting of such right of subscription or purchase, as the case may be.
 
Notwithstanding the foregoing, no adjustment will be made under this paragraph (c) in respect of: (i) the issuance of securities upon the exercise or conversion of any Common Stock or Common Stock Equivalents issued by the Company prior to the date hereof (but will apply to any amendments, modifications and reissuances thereof), (ii) the grant of options, warrants or other Common Stock Equivalents under any duly authorized Company stock option, restricted stock plan or stock purchase plan whether now existing or hereafter approved by the Company and its stockholders in the future (but not as to any amendments or other modifications to the amount of Common Stock issuable thereunder, the terms set forth therein, or the exercise price set forth therein) and the issuance of Common Stock in respect thereof, (iii) securities issued pursuant to acquisitions or strategic transactions, provided any such issuance shall only be to a Person which is, itself or through its subsidiaries, an operating company in a business synergistic with the business of the Company and in which the Company receives benefits in addition to the investment of funds, but shall not include a transaction in which the Company is issuing securities primarily for the purpose of raising capital or to an entity whose primary business is investing in securities, or (iv) Common Stock issued upon conversion of the Company’s 10% senior secured convertible debentures dated October 26, 2007.
 
(d) Number of Warrant Shares. Simultaneously with any adjustment to the Warrant Price pursuant to Section 5(a), the number of Warrant Shares that may be purchased upon exercise of this Warrant shall be increased or decreased proportionately, so that after such adjustment the aggregate Warrant Price payable hereunder for the adjusted number of Warrant Shares shall be the same as the aggregate Warrant Price in effect immediately prior to such adjustment. Notwithstanding the foregoing, in connection with any adjustment to the Warrant Price pursuant to Section 5(c), the number of Warrant Shares which the Holder may acquire under this Warrant will not be effected thereby.
 
(e) Calculations. All calculations under this Section 5 shall be made to the nearest cent or the nearest 1/100th of a share, as applicable. The number of shares of Common Stock outstanding at any given time shall not include shares owned or held by or for the account of the Company, and the disposition of any such shares shall be considered an issue or sale of Common Stock.
 
(f) Notice of Adjustments. Upon the occurrence of each adjustment pursuant to this Section 5, the Company at its expense will promptly compute such adjustment in accordance with the terms of this Warrant and prepare a certificate setting forth such adjustment, including a statement of the adjusted Warrant Price and adjusted number or type of Warrant Shares or other securities issuable upon exercise of this Warrant (as applicable), describing the transactions giving rise to such adjustments and showing in detail the facts upon which such adjustment is based. Upon written request, the Company will promptly deliver a copy of each such certificate to the Holder and to the Company's Transfer Agent.
 
 
7
 
(g) Notice of Corporate Events. If the Company (i) declares a dividend or any other distribution of cash, securities or other property in respect of its Common Stock, including without limitation any granting of rights or warrants to subscribe for or purchase any capital stock of the Company or any Subsidiary, (ii) authorizes or approves, enters into any agreement contemplating or solicits stockholder approval for any Fundamental Transaction or (iii) authorizes the voluntary dissolution, liquidation or winding up of the affairs of the Company, then the Company shall deliver to the Holder a notice describing the material terms and conditions of such transaction (but only to the extent such disclosure would not result in the dissemination of material, non-public information to the Holder) at least 10 calendar days prior to the applicable record or effective date on which a Person would need to hold Common Stock in order to participate in or vote with respect to such transaction, and the Company will take all steps reasonably necessary in order to insure that the Holder is given the practical opportunity to exercise this Warrant prior to such time so as to participate in or vote with respect to such transaction; provided, however, that the failure to deliver such notice or any defect therein shall not affect the validity of the corporate action required to be described in such notice.
 
6. Notice to Holders.
 
(a) Notice of Record Date. In case:
 
(i) the Company shall take a record of the holders of its Common Stock (or other stock or securities at the time receivable upon the exercise of this Warrant) for the purpose of entitling them to receive any dividend (other than a cash dividend payable out of earned surplus of the Company) or other distribution, or any right to subscribe for or purchase any shares of stock of any class or any other securities, or to receive any other right;
 
(ii) of any capital reorganization of the Company, any reclassification of the capital stock of the Company, any consolidation with or merger of the Company into another corporation, or any conveyance of all or substantially all of the assets of the Company to another corporation; or
 
(iii) of any voluntary dissolution, liquidation or winding-up of the Company;
 
then, and in each such case, the Company will mail or cause to be mailed to the Holder hereof at the time outstanding a notice specifying, as the case may be, (i) the date on which a record is to be taken for the purpose of such dividend, distribution or right, and stating the amount and character of such dividend, distribution or right, or (ii) the date on which such reorganization, reclassification, consolidation, merger, conveyance, dissolution, liquidation or winding-up is to take place, and the time, if any, is to be fixed, as of which the holders of record of Common Stock (or such stock or securities at the time receivable upon the exercise of this Warrant) shall be entitled to exchange their shares of Common Stock (or such other stock or securities) for securities or other property deliverable upon such reorganization, reclassification, consolidation, merger, conveyance, dissolution or winding-up. Such notice shall be mailed at least ten (10) calendar days prior to the record date therein specified, or if no record date shall have been specified therein, at least ten (10) days prior to such specified date.
 
(b) Certificate of Adjustment. Whenever any adjustment shall be made pursuant to Section 5 hereof, the Company shall promptly make available and have on file for inspection a certificate signed by its Chairman, Chief Executive Officer, President or a Vice President, setting forth in reasonable detail the event requiring the adjustment, the amount of the adjustment, the method by which such adjustment was calculated and the Warrant Price and number of Warrant Shares purchasable upon exercise of this Warrant after giving effect to such adjustment.
 
 
8
 
7.     Loss, Theft, Destruction or Mutilation. Upon receipt by the Company of evidence satisfactory to it, in the exercise of its reasonable discretion, of the ownership and the loss, theft, destruction or mutilation of this Warrant and, in the case of loss, theft or destruction, of indemnity reasonably satisfactory to the Company and, in the case of mutilation, upon surrender and cancellation thereof, the Company will execute and deliver in lieu thereof, without expense to the Holder, a new Warrant of like tenor dated the date hereof.
 
8.     Warrant Holder Not a Stockholder. The Holder of this Warrant, as such, shall not be entitled by reason of this Warrant to any rights whatsoever as a stockholder of the Company, including but not limited to voting rights.
 
9.     Notices. Any notice provided for in this Warrant must be in writing and must be either personally delivered, mailed by first class mail (postage prepaid and return receipt requested), or sent by reputable overnight courier service (charges prepaid) to the recipient at the address below indicated:

If to the Company:
 
Odyne Corporation
89 Cabot Court, Suite L
Hauppauge, New York 11788
Attention: Chief Executive Officer
 
If to the Holder:

   
To the address of such Holder set forth on the books and records of the Company.
 
or such other address or to the attention of such other person as the recipient party shall have specified by prior written notice to the sending party. Any notice under this Warrant will be deemed to have been given (a) if personally delivered, upon such delivery, (b) if mailed, five days after deposit in the U.S. mail, or (c) if sent by reputable overnight courier service, one business day after such services acknowledges receipt of the notice.
 
10. Governing Law; Venue. All questions concerning the construction, validity, enforcement and interpretation of this Warrant 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 of the Holder and the Company agree that all legal proceedings concerning the interpretations, enforcement and defense of this Warrant and the transactions herein contemplated (“Proceedings”) (whether brought against a Holder or the Company or any respective Affiliates, employees or agents) shall be commenced exclusively in the New York Courts. Each of the Holder and the Company hereby irrevocably submit 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 of the Holder and the Company hereby irrevocably waive personal service of process and consent 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 Warrant 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 of the Holder and the Company hereby irrevocably waive, to the fullest extent permitted by applicable law, any and all right to trial by jury in any legal proceeding arising out of or relating to this Warrant or the transactions contemplated hereby. If either the Holder or the Company shall commence a Proceeding to enforce any provisions of this Warrant, 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.
 
 
 
 
11. Miscellaneous. Nothing in this Warrant shall be construed to give to any Person other than the Company and the Holder any legal or equitable right, remedy or cause of action under this Warrant. This Warrant may be amended only in writing signed by the Company and the Holder and their successors and assigns. The Company shall register this Warrant upon records to be maintained by the Company for that purpose (the "Warrant Register"), in the name of the record Holder hereof from time to time. The Company may deem and treat the registered Holder of this Warrant as the absolute owner hereof for the purpose of any exercise hereof or any distribution to the Holder, and for all other purposes, absent actual notice to the contrary. The Company shall serve as warrant agent under this Warrant. Upon 10 days' notice to the Holder, the Company may appoint a new warrant agent. Any corporation into which the Company or any new warrant agent may be merged or any corporation resulting from any consolidation to which the Company or any new warrant agent shall be a party or any corporation to which the Company or any new warrant agent transfers substantially all of its corporate trust or shareholders services business shall be a successor warrant agent under this Warrant without any further act. Any such successor warrant agent shall promptly cause notice of its succession as warrant agent to be mailed (by first class mail, postage prepaid) to the Holder at the Holder's last address as shown on the Warrant Register.
 
IN WITNESS WHEREOF, the Company has duly caused this Warrant to be signed on its behalf, in its corporate name and by a duly authorized officer, as of this __ day of March 2008.
 
ODYNE CORPORATION
 
By:_________________________________
Name:
Title:

9

EXHIBIT A

 
SUBSCRIPTION FORM
 
Odyne Corporation
89 Cabot Court, Suite L
Hauppauge, New York 11788
Attention: Chief Executive Officer
 
The undersigned hereby (1) irrevocably elects to exercise his, her or its rights to purchase ____________ shares of the common stock, par value $.001 per share (“Common Stock”), of Odyne Corporation, a Delaware corporation, covered by the attached Warrant, (2) makes payment in full of the purchase price therefore by enclosure of cash, a certified check or bank draft, (3) requests that certificates for such shares of Common Stock be issued in the name of:
 
(Please print the Warrant holder’s name, address and Social Security/Tax Identification Number)
________________________________________________
________________________________________________
________________________________________________
and (4) if such number of shares of Common Stock shall not be all the shares receivable upon exercise of the attached Warrant, requests that a new Warrant for the balance of the shares covered by the attached Warrant be registered in the name of, and delivered to:
 
(Please print name, address and Social Security/Tax Identification Number)
________________________________________________
________________________________________________
________________________________________________
In lieu of receipt of a fractional share of Common Stock, the undersigned will receive a check representing payment therefor.
 
Dated: _____________________  _________________________________
                                                                             PRINT WARRANT HOLDER NAME
 
                                                                                                                    
                                                                               Name:
                                                                               Title:
Witness:
 

___________________________
 
10
 
 

 
EXHIBIT B
 
NOTICE OF CASHLESS EXERCISE
 
Odyne Corporation
89 Cabot Court, Suite L
Hauppauge, New York 11788
Attention: President
 
The undersigned, the Holder of the attached Warrant, hereby irrevocably elects to exchange its Warrant for _________ shares of the common stock, par value $.001 per share (“Common Stock”), of Odyne Corporation, a Delaware corporation, pursuant to the cashless exercise provisions of the within Warrant, as referred to in Section 1(a) of such Warrant, and requests that a certificate or certificates for such shares of Common Stock (and any warrants or other property issuable upon such exercise), unless otherwise required by applicable law, free of restrictive legends, be issued in the name of and delivered to __________________________ whose address is _______________________________ (social security or taxpayer identification number ___________) and, if such shares shall not include all of the shares issuable under such Warrant, that a new warrant of like tenor and date for the balance of the shares issuable thereunder be delivered to the undersigned.
 


Dated: _____________________                                                                                                      
                                                                          PRINT WARRANT HOLDER NAME  
 
 
                                                                                                                        
                                                                           Name:
                                                                           Title:
 

Witness:
 
 
                                                                    
 
 
11
 
EXHIBIT C

ASSIGNMENT FORM
 
Odyne Corporation
89 Cabot Court, Suite L
Hauppauge, New York 11788
Attention: Chief Executive Officer

FOR VALUE RECEIVED,                                                              hereby sells, assigns and transfers unto

(Please print assignee’s name, address and Social Security/Tax Identification Number)
________________________________________________
________________________________________________
________________________________________________
the right to purchase shares of common stock, par value $.001 per share, of Odyne Corporation, a Delaware corporation (the “Company”), represented by this Warrant to the extent of shares as to which such right is exercisable and does hereby irrevocably constitute and appoint ____________________________, Attorney, to transfer the same on the books of the Company with full power of substitution in the premises.
 
Dated: _____________________ _________________________________
PRINT WARRANT HOLDER NAME
 
                                                            _________________________________
Name:
Title:

Witness:
 
____________________________
 
12
 
 EX-10.1 3 v108510_ex10-1.htm


SECURITIES PURCHASE AGREEMENT
 
This SECURITIES PURCHASE AGREEMENT (this "Agreement") is made as of March __, 2008, by and between Odyne Corporation, a Delaware corporation with its principal office at 89 Cabot Court, Suite L, Hauppauge, New York 11788, and all predecessors thereof (collectively, the "Company"), and each of the several purchasers named in Exhibit A attached hereto (each, a "Purchaser" and collectively, the "Purchasers").
 
WHEREAS, the Company desires to issue and sell to the Purchasers (i) an aggregate of up to 11,666,666 shares (the "Shares") of the authorized but unissued shares of the Company's common stock, par value $.001 per share (the "Common Stock"), and (ii) warrants to purchase an aggregate of up to 11,666,666 shares of the Common Stock (the “Warrants”) in the form attached hereto as Exhibit B; and
 
WHEREAS, each Purchaser, severally, wishes to purchase the number of Shares shown next to its name on Exhibit A hereto, all upon the terms and subject to the conditions set forth in this Agreement.
 
NOW THEREFORE, in consideration of the mutual agreements, representations, warranties and covenants herein contained, the parties hereto agree as follows:
 
1. Definitions. As used in this Agreement, the following terms shall have the following respective meanings:
 
"Affiliate" of a party means any other Person controlling, controlled by or under common control with the specified Person. For the purposes of this definition, "control" means the power to direct the management and policies of such Person, whether through the ownership of voting securities, by contract or otherwise.
 
“Business Day” means any day except Saturday, Sunday and any day which is a federal legal holiday or a day on which banking institutions in the State of New York are authorized or required by law or other governmental action to close.
 
“Common Stock Equivalents” means any securities of the Company or any Subsidiary which entitle the holder thereof to acquire Common Stock at any time, including without limitation, any debt, preferred stock, rights, options, warrants or other instrument that is at any time convertible into or exchangeable for, or otherwise entitles the holder thereof to receive, Common Stock or other securities that entitle the holder to receive, directly or indirectly, Common Stock.
 
"Exchange Act" means the Securities Exchange Act of 1934, as amended, and all of the rules and regulations promulgated thereunder.
 
"GAAP" means United States generally accepted accounting principles.
 
“Material Adverse Effect” means any of (i) a material and adverse effect on the legality, validity or enforceability of this Agreement, the Warrants or the Registration Rights Agreement, (ii) a material and adverse effect on the results of operations, assets, properties, prospects, business or condition (financial or otherwise) of the Company and its Subsidiaries, taken as a whole, or (iii) an adverse impairment to the Company’s ability to perform on a timely basis its obligations under any of this Agreement, the Warrants or the Registration Rights Agreement.
 
 
 
“New York Courts” means the state and federal courts sitting in the City of New York, Borough of Manhattan.
 
"Person" shall mean an individual, corporation, company, partnership, firm, association, joint venture, trust, unincorporated organization, government, governmental body, agency, political subdivision or other entity.
 
“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.
 
“Registration Rights Agreement” means the Registration Rights Agreement, dated as of the date hereof, by and between the Company and each of the several Purchasers, in the form attached hereto as Exhibit C.
 
"SEC" shall mean the U.S. Securities and Exchange Commission.
 
"Securities Act" shall mean the Securities Act of 1933, as amended, and all of the rules and regulations promulgated thereunder.
 
“Subsidiary” or “Subsidiaries” of any Person means any “subsidiary” as defined in Rule 1-02(x) of the Regulation S-X promulgated by the SEC under the Exchange Act of such Person.
 
"Trading Day" means (i) a day on which the Common Stock is traded on a Trading Market (other than the OTC Bulletin Board), or (ii) if the Common Stock is not listed on a Trading Market (other than the OTC Bulletin Board), a day on which the Common Stock is traded in the over-the-counter market, as reported by the OTC Bulletin Board, or (iii) if the Common Stock is not quoted on any Trading Market, a day on which the Common Stock is quoted in the over-the-counter market as reported by the Pink Sheets, LLC (or any similar organization or agency succeeding to its functions of reporting prices); provided, that in the event that the Common Stock is not listed or quoted as set forth in (i), (ii) and (iii) hereof, then Trading Day shall mean a Business Day.
 
“Trading Market” means whichever of the New York Stock Exchange, the American Stock Exchange, the NASDAQ Global Select Market, the NASDAQ Global Market, the NASDAQ Capital Market or OTC Bulletin Board on which the Common Stock is listed or quoted for trading on the date in question.
 
"Warrant Share" shall mean the shares of Common Stock issuable or issued upon the exercise of the Warrants.
 
2. Purchase and Sale of Shares and Warrants.
 
2.1 Purchase and Sale. Subject to and upon the terms and conditions set forth in this Agreement, the Company agrees to issue, sell and deliver to each Purchaser, and each Purchaser, severally, hereby agrees to purchase from the Company, at the Closing, (i) the number of shares of Common Stock set forth opposite the name of such Purchaser under the heading "Number of Shares to be Purchased" on Exhibit A hereto, at a purchase price of $.60 per share (the “Purchase Price”) and (ii) one or more Warrants to purchase the number of shares of Common Stock set forth opposite the name of such Purchaser under the heading “Shares to be Issued upon Exercise of Warrants” on Exhibit A hereto, at an exercise price of $.72 per Warrant Share. The total purchase price payable by each Purchaser for the number of shares of Common Stock and the Warrants that such Purchaser is hereby agreeing to purchase is set forth opposite the name of such Purchaser under the heading "Purchase Price" on Exhibit A hereto. The Company shall be obligated to register the Warrant Shares pursuant to the terms and conditions set forth in the Registration Rights Agreement.
 
2
 
2.2 Closing. The closing of the transactions contemplated under this Agreement (the "Closing") shall take place at 10:00 a.m. at the offices of Greenberg Traurig, LLP in New York, New York, on Friday, March 28, 2008, or at such other location, date and time as may be agreed upon between the Purchasers and the Company (the “Closing Date”). At the Closing, the Company shall authorize its transfer agent to issue to each Purchaser, against delivery of payment for the Shares and the Warrants by wire transfer of immediate available funds in accordance with the Company's instructions, (i) one or more stock certificates registered in the name of each Purchaser, representing the number of shares set forth opposite the appropriate Purchaser's name on Exhibit A hereto, and (ii) one or more warrant certificates registered in the name of each Purchaser to purchase the number of shares of Common Stock set forth opposite the appropriate Purchaser’s name on Exhibit A hereto, and, in the case of both (i) and (ii) above, bearing the legend set forth in Section 6.2 hereof. Closing documents may be delivered by facsimile with original signature pages sent by overnight courier.
 
2.3 Independent Purchasers. The Company acknowledges and agrees that each of the Purchasers is acting solely in the capacity of an arm's length purchaser with respect to this Agreement and the transactions contemplated hereby and that each Purchaser has separately negotiated the terms of this Agreement. Nothing contained herein or in any agreement or document relating to this transaction, and no action taken by any Purchaser, shall be deemed to constitute the Purchasers as, or to create any presumption that the Purchasers are in any way acting in concert or as, a group with respect to the obligations or transaction hereunder. No Purchaser has relied upon any other Purchaser for advice in entering into the transactions contemplated hereby.
 
3. Representations and Warranties of the Company. The Company hereby represents and warrants to each of the Purchasers as follows:
 
3.1 Organization and Good Standing. The Company is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware and has all requisite power and authority, and all necessary licenses and permits, to own and lease its properties and assets and to conduct its business as now conducted. Each Subsidiary as referred to in the SEC Documents (as hereinafter defined) is a corporation duly organized, validly existing and in good standing under the laws of the jurisdiction of its incorporation and has all requisite power and authority, and all necessary licenses and permits, to own and lease its properties and assets and to conduct its business as now conducted. The Company and its Subsidiaries are each qualified to do business as a foreign corporation and are in good standing in all states where the conduct of their respective businesses or their ownership or leasing of property requires such qualification, except where the failure to so qualify would not have a Material Adverse Effect. The Company does not own or control, directly or indirectly, any interest in any other corporation, partnership, limited liability company, unincorporated business organization, association, trust or other business entity.
 
3.2 Capitalization.
 
(a) The authorized capital stock of the Company consists of: (i) 5,000,000 shares of preferred stock of the Company, par value $.001 per share, of which 6,000 shares of preferred stock have been designated Series A Convertible Preferred Stock and 2,886.62 of such shares are issued and outstanding; and (ii) 95,000,000 shares of Common Stock, par value $.0001 per share, of which, immediately prior to the consummation of the transactions contemplated hereby, (A) 22,101,448 shares are issued and outstanding and all such outstanding shares are validly issued, fully paid and non-assessable; (B) 1,975,000 shares of Common Stock are reserved for issuance upon the exercise of outstanding stock options granted under the Company's 2006 Equity Incentive Plan and 2,400,000 shares of Common Stock are reserved for issuance upon the exercise of stock options granted pursuant to a Non-Qualified Stock Option Agreement; (C) 3,850,751 shares are reserved for issuance upon the conversion of outstanding shares of Series A Convertible Preferred Stock of the Company; and (D) 10,586,347 shares of Common Stock are reserved for issuance upon exercise of outstanding warrants.
 
(b) There are no preemptive or similar rights to purchase or otherwise acquire shares of capital stock of the Company or any Subsidiary pursuant to any provision of law or the Certificate of Incorporation or By-laws of the Company, any Subsidiary or by agreement or otherwise. Except for the Warrants, as set forth in this Section 3.2 and except as set forth in the SEC Documents, there are no outstanding subscriptions, warrants, options or other rights or commitments of any character to subscribe for or purchase from the Company or any Subsidiary, or obligating the Company or any Subsidiary to issue, any shares of capital stock of the Company or any securities convertible into or exchangeable for such shares. Except as set forth on Schedule 3.2(b), the issue and sale of the Shares hereunder will not, immediately or with the passage of time, obligate the Company or any Subsidiary to issue shares of Common Stock or other securities to any Person (other than the Purchasers pursuant to this Agreement and the Warrants) and will not result in a right of any holder of Company or Subsidiary securities to adjust the exercise, conversion, exchange or reset price under such securities.
 
(c) There are no stockholder agreements, voting agreements, or similar agreements with respect to the Common Stock to which the Company or any Subsidiary is a party, or to the knowledge of the Company, by or between any stockholders of the Company or any of its Affiliates.
 
3
 
3.3 Authorization. The Company has all requisite corporate power to enter into this Agreement, the Registration Rights Agreement and the Warrants, to issue the Shares, the Warrants and the Warrant Shares and to carry out and perform its obligations under the terms of this Agreement (including, without limitation, the issuance of the Shares, the Warrants and the Warrant Shares). All corporate action on the part of the Company, its officers, directors and stockholders necessary for the authorization, execution, delivery and performance of this Agreement and the consummation of the transactions contemplated herein has been taken or will be taken prior to the Closing Date. When executed and delivered by the Company, this Agreement shall constitute the legal, valid and binding obligation of the Company, enforceable against the Company in accordance with their respective terms, except as such may be limited by bankruptcy, insolvency, reorganization or other laws affecting creditors' rights generally and by general equitable principles.
 
3.4 Valid Issuance of the Shares and the Warrant Shares. The Shares and the Warrant Shares have been duly authorized and will, upon issuance pursuant to the terms hereof, be validly issued, fully paid and non-assessable, free from all liens, claims, encumbrances with respect to the issuance of such Shares and Warrant Shares and will not be subject to any preemptive or similar rights. Except for blue sky filing fees, if any, there are no state or city taxes, fees or other charges payable in connection with the execution or delivery of this Agreement, the Shares, the Warrants and the Warrant Shares. The Company has reserved from its duly authorized capital stock the shares of Common Stock issuable pursuant to this Agreement in order to issue the Shares and Warrant Shares.
 
3.5 SEC Documents. The Company has made available to each Purchaser, a true and complete copy of the Company's Annual Report on Form 10-KSB for the year ended December 31, 2006, and any other statement, report, registration statement (other than registration statements on Form S-8) or definitive proxy statement filed by the Company with the SEC during the period commencing on December 31, 2006 and ending on the date hereof. The Company will, promptly upon the filing thereof, also make available to each Purchaser on its website, www.odyne.com, all statements, reports (including, without limitation, Quarterly Reports on Form 10-Q and Current Reports on Form 8-K), registration statements and definitive proxy statements filed by the Company with the SEC during the period commencing on the date hereof and ending on the Closing Date (all such materials required to be furnished to each Purchaser pursuant to this sentence or pursuant to the next preceding sentence of this Section 3.5 being called, collectively, including any amendments thereto, the "SEC Documents"). Since January 1, 2007, the Company has timely made all filings required to be made by it under the Securities Act, Exchange Act and the securities laws of any state, and any rules and regulations promulgated thereunder. The SEC Documents comply in all material respects with the requirements of the Exchange Act or the Securities Act, as applicable, and none of the SEC Documents contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements made therein, in light of the circumstances under which they were made, not misleading, as of their respective filing dates, except to the extent corrected by a subsequently filed SEC Document filed prior to the date hereof.
 
3.6 Financial Statements. All financial statements included in the SEC Documents (hereinafter referred to collectively as the "Financial Statements") have been prepared in accordance with U.S. generally accepted accounting principles applied on a consistent basis during the periods involved, and fairly present, in all material respects, the financial position of the Company and any Subsidiaries and the results of its operations as of the date and for the periods indicated thereon. Since December 31, 2006, to the Company's knowledge, (i) there has been no development or change (actual or threatened), individually or in the aggregate, having a Material Adverse Effect, (ii) there does not exist any condition reasonably likely to result in a Material Adverse Effect, and (iii) the Company has conducted its business only in the ordinary course consistent with past practice. The Company has no indebtedness, obligations or liabilities of any kind (whether accrued, absolute, contingent or otherwise, and whether due or to become due) which were not fully reflected in, reserved against or otherwise described in the Financial Statements or the notes thereto, or incurred in the ordinary course of business consistent with the Company's past practices, all of which individually and in the aggregate do not or would not have a Material Adverse Effect.
 
3.7 Consents. All permits, consents, waivers, approvals, orders, authorizations of, or declarations to (collectively, "Permits") or filings with any federal, state, local or foreign court, governmental or regulatory authority, or other person (including third party consents) required on the part of the Company in connection with the execution, delivery or performance of this Agreement, the Warrants and the Registration Rights Agreement and the consummation of the transactions contemplated herein have been obtained or will be obtained prior to the Closing Date, and will be effective as of the Closing Date.
 
3.8 No Conflict. The execution, delivery and performance of this Agreement, the Registration Rights Agreement and the Warrants by the Company, and the consummation by the Company of the transactions contemplated thereby do not and will not (i) conflict with or violate any provision of the Company’s or any Subsidiary’s certificate or articles of incorporation, bylaws or other organizational or charter documents, or (ii) conflict with, or constitute a default (or an event that with notice or lapse of time or both would become a default) under, or give to others any rights of termination, amendment, acceleration or cancellation (with or without notice, lapse of time or both) of, any agreement, credit facility, debt or other instrument (evidencing a Subsidiary debt or otherwise) or other understanding to which any Subsidiary is a party or by which any property or asset of the Company or any Subsidiary is bound or affected, or (iii) result in a violation of any law, rule, regulation, order, judgment, injunction, decree or other restriction of any United States court or governmental authority to which the Company or a Subsidiary is subject (including federal and state securities laws and regulations), or by which any property or asset of the Company or a Subsidiary is bound or affected; except in the case of each of clauses (ii) and (iii), such as could not, individually or in the aggregate, have or reasonably be expected to result in a Material Adverse Effect.
 
4
 
3.9 Brokers or Finders. Except for vFinance Investments, Inc. (the "Placement Agent"), the Company has not dealt with any broker or finder in connection with the transactions contemplated by this Agreement, and, except for certain fees and expenses payable by the Company to the Placement Agent, the Company has not incurred, and shall not incur, directly or indirectly, any liability for any brokerage or finders' fees or agents commissions or any similar charges in connection with this Agreement or any transaction contemplated hereby.
 
3.10 OTC Bulletin Board. The Common Stock is listed on the OTC Bulletin Board and there are no proceedings to revoke or suspend such listing. The Common Stock is registered pursuant to Section 15(d) of the Exchange Act. The Company has taken no action designed to, or which to its knowledge is likely to have the effect of, terminating the registration of the Common Stock under the Exchange Act or delisting the Common Stock from the OTC Bulletin Board. The Company has not received any notification that, and has no knowledge that, the SEC is contemplating terminating such registration. The issuance of the Shares, the Warrants and the Warrant Shares does not require stockholder approval. The Company has not, since October 17, 2006, received notice from any Trading Market to the effect that the Company is not in compliance with the listing or maintenance requirements thereof, which has not otherwise been cured. The Company is, and has no reason to believe that it will not in the foreseeable future continue to be, in compliance with the listing and maintenance requirements for continued listing of the Common Stock on the OTC Bulletin Board on which the Common Stock is currently listed or quoted. The issuance and sale of the Shares and Warrants under this Agreement does not contravene the rules and regulations of the OTC Bulletin Board on which the Common Stock is currently listed or quoted.
 
3.11 Absence of Litigation. Except for the action, Amity Truck Service Corp. v. Odyne Corporation, et al., filed in the Supreme Court of the State of New York, County of Suffolk, in January 2008 (as described on Schedule 3.11), there is no action, suit or proceeding or, to the Company's knowledge, any investigation, pending, or to the Company's knowledge, threatened by or before any governmental body against the Company, its Subsidiaries, its activities, properties or assets or any officer, director, or employee of the Company in connection with such officer's, director's or employee's relationship with, or actions taken on behalf of the Company and in which an unfavorable outcome, ruling or finding in any said matter, or for all matters taken as a whole, might have a Material Adverse Effect. The foregoing includes, without limitation, any such action, suit, proceeding or investigation that questions this Agreement or the right of the Company to execute, deliver and perform under same. The Company is not a party to or subject to the provisions of any order, writ, injunction or decree of any court or government agency. Neither the Company nor any Subsidiary, nor any director or officer thereof (in his or her capacity as such), is or has been the subject of any action, suit or proceeding involving a claim of violation of or liability under federal or state securities laws or a claim of breach of fiduciary duty. There has not been, and to the knowledge of the Company, there is not pending any investigation by the SEC involving the Company or any Subsidiary or any of their respective current or former directors or officers (in his or her capacity as such). The SEC has not issued any stop order or other order suspending the effectiveness of any registration statement filed by the Company or any Subsidiary under the Exchange Act or the Securities Act.
 
3.12 Title to Property and Assets. Except as set forth on Schedule 3.12, each of the Company and its Subsidiaries owns its property and assets free and clear of all mortgages, liens, loans, claims, charges and encumbrances, and except such encumbrances and liens that arise in the ordinary course of business and do not materially impair their respective ownership or use of such property or assets. With respect to property and assets it leases, the Company and its Subsidiaries are in material compliance with such leases and, to the best of its knowledge, holds a valid leasehold interest free of any liens, charges, claims or encumbrances, except to the extent any such lien, charge, claim or encumbrance would not have a Material Adverse Effect.
 
5
 
3.13 Patents, Trademarks, Proprietary Rights.
 
(a) Each of the Company and its Subsidiaries owns or has the right to use all of the Intellectual Property Rights (as defined below), except where such failure would not have a Material Adverse Effect on the business, properties or assets of the Company and its Subsidiaries, taken as a whole. For purposes of this Agreement, "Intellectual Property Rights" means all patents, patent applications, copyrights, trademarks, trademark applications, service marks, trade names, permits, trade secrets, computer programs, software designs and related materials and other intellectual property that are used by the Company or a Subsidiary as set forth on Schedule 3.13.
 
(b) To the Company's knowledge, the Company's and each Subsidiary's use and enjoyment of the Intellectual Property Rights do not violate any license or conflict with or infringe the intellectual property rights of others in a manner which would materially and adversely affect the business, assets, properties, operations or condition (financial or otherwise) of the Company and its Subsidiaries, taken as a whole.
 
3.14 Environmental Matters. To the Company’s knowledge, neither the Company nor any of its Subsidiaries is in violation of any applicable statute, law or regulation relating to the environment or occupational health and safety, which violation could reasonably be expected to result in a Material Adverse Effect, and to the best of its knowledge, no expenditures are required in order to comply with any such existing statute, law or regulation, which expenditures could reasonably be expected to result in a Material Adverse Effect.
 
3.15 Permits. Each of the Company and its Subsidiaries possesses all Permits or similar authority necessary to conduct its business as described in the SEC Documents, except where the failure to possess such Permits would not, individually or in the aggregate, have a Material Adverse Effect on the Company or its Subsidiaries ("Material Permits"), and neither the Company nor any such Subsidiary has received any notice of proceedings relating to the revocation or modification of any Material Permit.
 
3.16 Employees. No strike, labor dispute or union organizing activities are pending or to the Company’s knowledge threatened against the Company or any of its Subsidiaries by its employees. No employees belong to a union or collective bargaining unit. To the Company's knowledge, neither the Company nor any of its Subsidiaries has any workers' compensation liabilities.
 
3.17 Compliance with Certificate of Incorporation and By-laws; Compliance with Laws. The Company is not in violation or default of any provisions of its Certificate of Incorporation or By-laws. The business and operations of the Company and each of its Subsidiaries have been conducted in accordance with all applicable laws, rules and regulations of all governmental agencies, authorities and instrumentalities (including, without limitation, under the Employee Retirement Income Security Act of 1974, as amended, and all laws relating to the employment of labor), except for such violations which would not, individually or in the aggregate, have a Material Adverse Effect.
 
3.18 Insurance. The Company and each of its Subsidiaries maintains insurance of the type and in the amount reasonably adequate for its business, including, but not limited to, insurance covering all real and personal property owned or leased by the Company against theft, damage, destruction, acts of vandalism, and all other risks customarily insured against by similarly situated companies, all of which insurance is in full force and effect.
 
3.19 Investment Company Act. The Company is not and will not be following the Closing, nor is any Affiliate of the Company, an "Investment Company" within the meaning of the Investment Company Act of 1940, as amended (the "Investment Company Act"), and the Company is not directly or indirectly controlled by or acting on behalf of any person that is an "Investment Company" within the meaning of the Investment Company Act.
 
6
 
3.20 Compliance with Securities Laws. Assuming the accuracy of the representations and warranties of the Purchasers set forth in Section 4 hereof, the offer and sale by the Company of the Shares and the Warrants, and the offer of the Warrant Shares, are exempt from the registration requirements of the Securities Act. Other than pursuant to an effective registration statement under the Securities Act, the Company has not issued, offered or sold any shares of Common Stock (including for this purpose any securities of the same or a similar class as the Common Stock) within the six-month period preceding the date hereof or taken any other action, or failed to take any action, that, in any such case, would (i) eliminate the availability of the exemption from registration under Regulation D under the Securities Act in connection with the offer and sale of the Shares and the Warrants as contemplated hereby or (ii) cause the offering of the Shares or the Warrants pursuant to this Agreement to be integrated with prior offerings by the Company for purposes of the Securities Act or any applicable stockholder approval provisions. The Company shall not directly or indirectly take, and shall not permit any of its directors, officers or Affiliates directly or indirectly to take, any action (including, without limitation, any offering or sale to any Person of the Shares, the Warrants or any Common Stock) that will make unavailable the exemption from registration under the Securities Act being relied upon by the Company for the offer and sale to the Purchasers of the Shares and the Warrants as contemplated by this Agreement, including, without limitation, the filing of a registration statement under the Securities Act. No form of general solicitation or advertising within the meaning of Rule 502(c) under the Securities Act has been used or authorized by the Company or any of its officers, directors or Affiliates in connection with the offer or sale of the Shares and the Warrants as contemplated by this Agreement or any other agreement to which the Company is a party. The Company is eligible to register its Common Stock for resale by the Purchasers under Form S-1 promulgated under the Securities Act.
 
3.21 Registration Rights. Except as set forth on Schedule 3.21, there are no Persons with registration or other similar rights (including “piggy-back” registration rights) to have any securities registered by the Company under the Securities Act which have not been satisfied.
 
3.22 Related-Party Transactions. Except as set forth on Schedule 3.22, neither the Company nor any of its officers, directors or five-percent shareholders nor any family member of any officer, director or five-percent shareholder of the Company has borrowed any moneys from or has outstanding any indebtedness or other similar obligations to the Company or any Subsidiary. Except as set forth on Schedule 3.22, no director or five-percent shareholder nor any family member of any officer, director or five-percent shareholder of the Company or any Subsidiary (i) owns any direct or indirect interest constituting more than a 1% equity (or similar profit participation) interest in, or controls or is a director, officer, partner, member or employee of, or consultant or lender to or borrower from, or has the right to participate in the profits of, any person or entity which is a participant in any transaction to which the Company or any Subsidiary is a party or (ii) is a party to any contract, agreement, commitment or other arrangement with the Company or any Subsidiary or (iii) has entered into any transaction with the Company or any Subsidiary that would be required to be disclosed under Item 404 of Regulation S-K.
 
3.23 Sarbanes-Oxley Act. The Chief Executive Officer and the Chief Financial Officer of the Company have signed, and the Company has furnished to the SEC, all certifications required by Sections 302 and 906 of the Sarbanes-Oxley Act of 2002. Such certifications contain no qualifications or exceptions to the matters certified therein and have not been modified or withdrawn; and neither the Company nor any of its officers has received notice from any governmental entity questioning or challenging the accuracy, completeness, form or manner of filing or submission of such certifications.
 
7
 
3.24 Internal Accounting Controls. The Company and the Subsidiaries maintain a system of internal accounting controls sufficient to provide reasonable assurance that (i) transactions are executed in accordance with management’s general or specific authorizations, (ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with GAAP and to maintain asset accountability, (iii) access to assets is permitted only in accordance with management’s general or specific authorization, and (iv) the recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences. The Company has established disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) for the Company and designed such disclosure controls and procedures to ensure that material information relating to the Company, including its Subsidiaries, is made known to the certifying officers by others within those entities, particularly during the period in which the Company’s Form 10-KSB or 10-QSB, as the case may be, is being prepared. The Company’s certifying officers have evaluated the effectiveness of the Company’s controls and procedures in accordance with Item 307 of Regulation S-B under the Exchange Act for the Company’s most recently ended fiscal quarter or fiscal year-end (such date, the “Evaluation Date”). The Company presented in its most recently filed Form 10-KSB or Form 10-QSB the conclusions of the certifying officers about the effectiveness of the disclosure controls and procedures based on their evaluations as of the Evaluation Date. Since the Evaluation Date, there have been no significant changes in the Company’s internal controls (as such term is defined in Item 308(c) of Regulation S-K under the Exchange Act) or, to the Company’s knowledge, in other factors that could significantly affect the Company’s internal controls.
 
3.25 Solvency. Based on the financial condition of the Company as of the Closing Date (and assuming that the Closing shall have occurred), (i) the Company’s fair saleable value of its assets exceeds the amount that will be required to be paid on or in respect of the Company’s existing debts and other liabilities (including known contingent liabilities) as they mature, (ii) the Company’s assets do not constitute unreasonably small capital to carry on its business for the current fiscal year as now conducted and as proposed to be conducted including its capital needs taking into account the particular capital requirements of the business conducted by the Company, and projected capital requirements and capital availability thereof, and (iii) the current cash flow of the Company, together with the proceeds the Company would receive, were it to liquidate all of its assets, after taking into account all anticipated uses of the cash, would be sufficient to pay all amounts on or in respect of its debt when such amounts are required to be paid. The Company does not intend to incur debts beyond its ability to pay such debts as they mature (taking into account the timing and amounts of cash to be payable on or in respect of its debt).
 
3.26 Application of Takeover Protections. The Company has taken all necessary action, if any, in order to render inapplicable any control share acquisition, business combination, poison pill (including any distribution under a rights agreement) or other similar anti-takeover provision under the Company’s Certificate of Incorporation (or similar charter documents) or the laws of its state of incorporation that is or could become applicable to the Purchasers as a result of the Purchasers and the Company fulfilling their obligations or exercising their rights under this Agreement, the Registration Rights Agreement and the Warrants, including without limitation the Company’s issuance of the Shares and Warrants and the Investors’ ownership of the Shares and Warrants.
 
3.27 No Additional Agreements. The Company does not have any agreement or understanding with any Purchaser with respect to the transactions contemplated by this Agreement, other than as specified in this Agreement, the Registration Rights Agreement, the Warrants or in Schedule 3.27.
 
3.28 Consultation with Auditors. The Company has consulted its independent registered public accounting firm concerning the accounting treatment of the transactions contemplated by this Agreement, and in connection therewith has furnished such auditors complete copies of this Agreement, the Registration Rights Agreement and the Warrants.
 
8
 
3.29 General Solicitation. Neither the Company nor any other person or entity authorized by the Company to act on its behalf has engaged in a general solicitation or general advertising (within the meaning of Regulation D of the Securities Act) of any Person with respect to offers or sales of the Shares or the Warrants.
 
3.30 Disclosure. Neither this Agreement nor the SEC Documents taken together contain any untrue statement of a material fact nor omit to state a material fact necessary in order to make the statements contained herein or therein, in light of the circumstances under which they were made, not misleading. Neither the Company nor any Person on its behalf, has provided any of the Purchasers or their agents or counsel with any information that constitutes, or might reasonably be expected to constitute, material, non-public information, except insofar as the existence and terms of the proposed transactions contemplated hereunder may constitute such information. The Company understands and confirms that each of such Purchasers will rely on the foregoing representations in effecting transactions in securities of the Company.
 
4. Representations, Warranties and Agreements of the Purchasers. Each Purchaser severally for itself, and not jointly with the other Purchasers, represents and warrants to, and agrees with, the Company as follows:
 
4.1 Authorization. Such Purchaser has all requisite power under its constituent documents to enter into each of this Agreement and to carry out and perform its obligations under the terms of this Agreement. All action on the part of such Purchaser and, if applicable, its officers, directors, stockholders, managers, members and equity holders necessary for the authorization, execution, delivery and performance of this Agreement and the consummation of the transactions contemplated herein has been taken. When executed and delivered, this Agreement will constitute the legal, valid and binding obligation of such Purchaser, enforceable against such Purchaser in accordance with its terms, except as such may be limited by bankruptcy, insolvency, reorganization or other laws affecting creditors' rights generally and by general equitable principles.
 
4.2 Purchase Entirely for Own Account. Such Purchaser is acquiring the Shares and the Warrants being purchased by it hereunder for investment, for its own account, and not with a view to distribution thereof in violation of the Securities Act.
 
4.3 Investor Status; Etc. Such Purchaser certifies and represents to the Company that at the time such Purchaser acquires any of the Shares or Warrants, such Purchaser will be an "Accredited Investor" as defined in Rule 501 of Regulation D promulgated under the Securities Act and was not organized for the purpose of acquiring the Shares or the Warrants. Such Purchaser's financial condition is such that it is able to bear the risk of holding the Shares, the Warrants or the Warrant Shares for an indefinite period of time and the risk of loss of its entire investment. The foregoing shall in no way limit or modify the representations of the Company set forth in Section 3 hereof.
 
4.4 Shares and Warrants Not Registered. Such Purchaser understands that the Shares and the Warrants have not been registered under the Securities Act, by reason of their issuance by the Company in a transaction exempt from the registration requirements of the Securities Act, and that the Shares and the Warrants must continue to be held by such Purchaser unless a subsequent disposition thereof is registered under the Securities Act or is exempt from such registration.
 
9
 
4.5 Brokers. Such Purchaser has not retained, utilized or been represented by any broker or finder in connection with the transactions contemplated by this Agreement.
 
4.6 Agreement with Respect to Short Sales. Neither the Purchasers nor any of their respective Affiliates nor any person acting on their behalf will have entered into for a period of five (5) days prior to the Closing Date, any "short sale" (as such term is defined in Rule 3b-3 under the Securities Exchange Act of 1934, as amended).
 
The Company acknowledges and agrees that no Purchaser has made or makes any representations or warranties with respect to the transactions contemplated hereby other than those specifically set forth in this Section 4.
 
5. Conditions Precedent.
 
5.1 Conditions to the Obligation of the Purchasers to Consummate the Closing. The obligation of each Purchaser to consummate the Closing and to purchase and pay for the Shares and the Warrants being purchased by it pursuant to this Agreement is subject to the satisfaction of the following conditions precedent (or waiver by such Purchaser) at or before Closing:
 
(a) The representations and warranties contained herein of the Company that are qualified as to "materiality" shall be true and correct, and the representations and warranties contained herein of the Company that are not so qualified shall be true and correct in all material respects, in each case, as of the date of this Agreement and as of the Closing Date (except for such representations and warranties which are made expressly as of a specified date or period, which shall be true and correct or true and correct in all material respects, as herein above required, as of such specified date or period).
 
(b) The Company shall have performed all covenants, agreements, obligations and conditions herein required to be performed or observed by the Company on or prior to the Closing Date.
 
(c) Prior to the Closing Date, no event or series of events shall have occurred which has had or reasonably could have a Material Adverse Effect on the Company or any Subsidiary.
 
(d) No suit, statute, rule, regulation, action, or other proceeding challenging this Agreement or the transactions contemplated hereby, or seeking to prohibit, alter, prevent or materially delay the Closing, shall have been instituted before any court, arbitrator or governmental body, agency or official and shall be pending.
 
(e) The purchase of and payment for the Shares and the Warrants by such Purchasers shall not be prohibited by any law or governmental order or regulation. All necessary consents, approvals, licenses, permits, orders and authorizations of, or registrations, declarations and filings with, any governmental or administrative agency or of any other person with respect to any of the transactions contemplated hereby (including, without limitation, the issuance of the Shares, the Warrants and the Warrant Shares) shall have been duly obtained or made and shall be in full force and effect.
 
(f) The Company shall have complied with all applicable requirements of federal and state securities or "blue sky" laws with respect to the issuance of the Shares and the Warrants, and each Purchaser, at such Purchaser's request, shall have been provided reasonable evidence thereof.
 
10
 
(g) The Common Stock of the Company (i) shall be designated for quotation or listed on the OTC Bulletin Board and (ii) shall not have been suspended from trading on the OTC Bulletin Board.
 
(h) A certificate shall have been delivered by the Company, signed by its Chief Executive Officer, President or Chief Financial Officer, dated as of the Closing Date, certifying as to the fulfillment of the conditions specified in Sections 5.1(a) and (b).
 
(i) (i) A copy of the stock certificate shall have been delivered by the Company to each Purchaser representing the number of shares of Common Stock purchased by such Purchaser as set forth opposite such Purchaser’s name on Exhibit A (with the original stock certificate from the Company’s transfer agent delivered on the Business Day following the Closing), and (ii) one or more warrants to purchase the number of shares of Common Stock set forth opposite such Purchaser’s name on Exhibit A shall have been delivered by the Company to a Purchaser, and in each case shall be, registered in the name of such Purchaser or nominee as designated by such Purchaser in writing, free of all restrictive and other legends (except as provided in Section 6.2 hereof).
 
(j) All instruments and corporate proceedings in connection with the transactions contemplated by this Agreement to be consummated at the Closing shall be satisfactory in form and substance to such Purchaser, and such Purchaser shall have received copies (executed or certified, as may be appropriate) of all documents which such Purchaser may have reasonably requested in connection with such transactions.
 
(k) No proceeding challenging this Agreement or the transactions contemplated hereby, or seeking to prohibit, alter, prevent or materially delay the Closing, shall have been instituted before any court, arbitrator or governmental body, agency or official and shall be pending.
 
(l) The Company shall have delivered to the Purchasers a certificate of the Company executed by the Company's Secretary attaching and certifying to the truth and correctness of (i) the Company's Certificate of Incorporation, (ii) the Company's By-laws and (iii) the resolutions adopted by the Company's Board of Directors in connection with the transactions contemplated by this Agreement.
 
(m) The Company shall have delivered to the Purchasers a certificate of the Secretary of State of the State of Delaware, dated as of a date within five days of the date of the Closing, with respect to the good standing of the Company.
 
(n) The Purchasers will have received an opinion on behalf of the Company, dated as of the date of the Closing, from Greenberg Traurig, LLP, counsel to the Company, in a form satisfactory to the Purchasers and addressed to the Purchasers.
 
(o) The Purchasers shall have committed, pursuant to the terms and subject to the conditions contained in this Agreement, to purchase Shares for an aggregate amount of at least $5.0 million.
 
5.2 Conditions to the Obligation of the Company to Consummate the Closing. The obligation of the Company to consummate the Closing, to issue and sell to each Purchaser the Shares and the Warrants to be purchased by it at the Closing is subject to the satisfaction of the following conditions precedent (or waiver by the Company) at or before Closing:
 
11
 
(a) The representations and warranties contained herein of such Purchaser that are qualified as to “materiality” shall be true and correct, and the representations and warranties contained herein of such Purchaser that are not so qualified shall be true and correct in all material respects, in each case, as of the date of this Agreement and as of the Closing Date (except for such representations and warranties which are made expressly as of a specified date or period, which shall be true and correct or true and correct in all material respects, as herein above required, as of such specified date or period).
 
(b) Such Purchaser shall have performed all obligations and conditions herein required to be performed or observed by it on or prior to the Closing Date.
 
(c) No proceeding challenging this Agreement or the transactions contemplated hereby, or seeking to prohibit, alter, prevent or materially delay the Closing, shall have been instituted before any court, arbitrator or governmental body, agency or official and shall be pending.
 
(d) The sale of the Shares and the Warrants by the Company shall not be prohibited by any law or governmental order or regulation.
 
(e) The Company shall have received this Agreement and the Registration Rights Agreement (which may be a counterpart signature) from the Purchasers.
 
(f) No Purchaser nor any of its Affiliates nor any person acting on behalf of such Persons will have entered into for a period of five days prior to the Closing Date, any "short sale" (as such term is defined in Section 6.5 hereof).
 
(g) The Purchasers shall have committed, pursuant to the terms and subject to the conditions contained in this Agreement, to purchase Shares for an aggregate amount of at least $5.0 million.
 
6. Transfer; Legends; Future Financings; Short Sales and Additional Agreements.
 
6.1 Securities Law Transfer Restrictions. No Purchaser shall sell, assign, pledge, transfer or otherwise dispose or encumber any of the Shares, the Warrants, and if applicable, the Warrant Shares, being purchased by it hereunder, except: (i) pursuant to an effective registration statement under the Securities Act or (ii) pursuant to an available exemption from registration under the Securities Act and applicable state securities laws and, if reasonably requested by the Company, upon delivery by such Purchaser of an opinion of counsel reasonably satisfactory to the Company to the effect that the proposed transfer is exempt from registration under the Securities Act and applicable state securities laws. The Company may, and may instruct any transfer agent for the Company, to place such stop transfer orders as may be required on the transfer books of the Company in order to ensure compliance with the provisions of this Section 6.1.
 
6.2 Legends. Each certificate representing any of the Shares, the Warrants and, if applicable, the Warrant Shares shall be endorsed with a legend in substantially the form set forth below, and each Purchaser covenants that, except to the extent such restrictions are waived by the Company, it shall not transfer the securities represented by any such certificate without complying with the restrictions on transfer described in this Agreement and the legends endorsed on such certificate:
 
[NEITHER THESE SECURITIES NOR THE SECURITIES ISSUABLE UPON EXERCISE OF THESE SECURITIES HAVE BEEN REGISTERED] [THESE SECURITIES HAVE NOT BEEN REGISTERED] WITH THE SECURITIES AND EXCHANGE COMMISSION OR THE SECURITIES COMMISSION OF ANY STATE IN RELIANCE UPON AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR PURSUANT TO AN AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS AS EVIDENCED BY A LEGAL OPINION OF COUNSEL TO THE TRANSFEROR TO SUCH EFFECT, THE SUBSTANCE OF WHICH SHALL BE REASONABLY ACCEPTABLE TO THE COMPANY.
 
12
 
6.3 Removal of Legends. Certificates evidencing Shares and Warrant Shares shall not contain any legend (including the legend set forth in Section 6.2): (i) while a registration statement covering either the Shares or Warrant Shares, as applicable, is effective, or (ii) following a sale or transfer of such Shares or Warrant Shares pursuant to Rule 144 (assuming the transferee is not an Affiliate of the Company), or (iii) while such Shares or Warrant Shares are eligible for sale without any conditions pursuant to Rule 144. If a Purchaser shall make a sale or transfer of Shares or Warrant Shares either (x) pursuant to Rule 144 or (y) pursuant to a registration statement and in each case shall have delivered to the Company or the Company’s transfer agent the certificate representing Shares or Warrant Shares containing a restrictive legend which are the subject of such sale or transfer (the date of such sale or transfer and Share or Warrant Share, as the case may be, delivery being the “Share Delivery Date”) and (1) the Company shall fail to deliver or cause to be delivered to such Purchaser a certificate representing such Shares or Warrant Shares that is free from all restrictive or other legends by the third Trading Day following the Share Delivery Date and (2) following such third Trading Day after the Share Delivery Date and prior to the time such Shares or Warrant Shares are received free from restrictive legends, the Purchaser, or any third party on behalf of such Purchaser, purchases (in an open market transaction or otherwise) shares of Common Stock to deliver in satisfaction of a sale by the Purchaser of such Shares or Warrant Shares (a "Buy-In"), then the Company shall pay in cash to the Purchaser (for costs incurred either directly by such Purchaser or on behalf of a third party) the amount by which the total purchase price paid for Common Stock as a result of the Buy-In (including brokerage commissions, if any) exceed the proceeds received by such Purchaser as a result of the sale to which such Buy-In relates. The Purchaser shall provide the Company written notice indicating the amounts payable to the Purchaser in respect of the Buy-In. The Company may not make any notation on its records or give instructions to any transfer agent of the Company that enlarge the restrictions on transfer set forth in this Section.
 
6.4 Participation in Future Financings.
 
(a) From the date hereof until the date that is 12 months after the Closing, the Company will not, directly or indirectly, offer, sell, grant any option to purchase, or otherwise dispose of (or announce any offer, sale, grant or any option to purchase or other disposition of) any of its or its Subsidiaries' equity or equity equivalent securities, including without limitation any debt, preferred stock or other instrument or security that is, at any time during its life and under any circumstances, convertible into or exchangeable or exercisable for shares of Common Stock or Common Stock Equivalents (any such event a "Subsequent Financing"), without affording each Purchaser the pro rata right (such right to be determined based on the number of Shares purchased on the Closing Date by each such Purchaser as set forth in Exhibit A hereto, divided by the aggregate number of Shares purchased on the Closing Date by all Purchasers) to participate in up to an amount of the Subsequent Financing equal to 100% of the Subsequent Financing (the "Participation Maximum") on the same terms, conditions and price provided for in the Subsequent Financing.
 
13
 
(b) At least ten Business Days prior to the closing of the Subsequent Financing, the Company shall deliver to each Purchaser a written notice of its intention to effect a Subsequent Financing ("Pre-Notice"), which Pre-Notice shall ask such Purchaser if it wants to review the details of such financing (such additional notice, a "Subsequent Financing Notice"). Upon the request of a Purchaser, and only upon a request by such Purchaser, for a Subsequent Financing Notice, the Company shall promptly, but no later than one Business Day after such request, deliver a Subsequent Financing Notice to such Purchaser. The Subsequent Financing Notice shall describe in reasonable detail the proposed terms of such Subsequent Financing (including pricing terms and type of securities offered), the amount of proceeds intended to be raised thereunder, the Person or Persons through or with whom such Subsequent Financing is proposed to be effected, and attached to which shall be a term sheet or similar document relating thereto. In the event a Subsequent Financing is not consummated and publicly announced within 30 calendar days following the date such Subsequent Financing Notice is first sent to a Purchaser, the Company shall, on such 30th calendar day, issue a press release regarding such Subsequent Financing Notice pursuant to Rule 135c under the Securities Act containing only the information regarding such Subsequent Financing that is permitted to be disclosed thereunder, in which case the Subsequent Financing shall be deemed to have been abandoned and the Purchasers shall no longer be deemed to be in possession of any non-public information with respect to the Company.
 
(c) Any Purchaser desiring to participate in such Subsequent Financing must provide written notice to the Company by not later than 5:00 p.m. (New York time) on the tenth Business Day after all of the Purchasers have received the Pre-Notice that the Purchaser is willing to participate in the Subsequent Financing, the amount of the Purchaser’s participation, and that the Purchaser has such funds ready, willing and available for investment on the terms set forth in the Subsequent Financing Notice. If the Company receives no notice from a Purchaser as of such tenth Business Day, such Purchaser shall be deemed to have notified the Company that it does not elect to participate.
 
(d) If by 5:00 p.m. (New York time) on the tenth Business Day after all of the Purchasers have received the Pre-Notice, notifications by the Purchasers of their willingness to participate in the Subsequent Financing (or to cause their designees to participate) is, in the aggregate, less than the total amount of the Subsequent Financing, then the Company may effect the remaining portion of such Subsequent Financing on the same terms and with the Persons set forth in the Subsequent Financing Notice within 30 calendar days after the date of the initial Subsequent Financing Notice.
 
(e) If by 5:00 p.m. (New York time) on the tenth Business Day after all of the Purchasers have received the Pre-Notice, the Company receives responses to a Subsequent Financing Notice from Purchasers seeking to purchase more than the aggregate amount of the Participation Maximum, each such Purchaser shall have the right to purchase the greater of (a) their Pro Rata Portion (as defined below) of the Participation Maximum and (b) the difference between the Participation Maximum and the aggregate amount of participation by all other Purchasers. “Pro Rata Portion” means the ratio of (x) the number of Shares purchased on the Closing Date by a Purchaser participating under this Section 6.4, and (y) the sum of the aggregate number of Shares purchased on the Closing Date by all Purchasers participating under this Section 6.4.
 
(f) The Company must provide the Purchasers with a second Subsequent Financing Notice, and the Purchasers will again have the right of participation set forth above in this Section 6.4, if the Subsequent Financing subject to the initial Subsequent Financing Notice is not consummated for any reason on the terms set forth in such Subsequent Financing Notice within 30 calendar days after the date of the initial Subsequent Financing Notice. Any securities not acquired by the Purchasers or other persons in accordance with this Section 6.4 may not be issued, sold or exchanged until they are again offered to the Purchaser under the procedures specified in this Agreement.
 
14
 
(g) Notwithstanding the foregoing, this Section 6.4 shall not apply in respect of securities issued pursuant to acquisitions or strategic transactions, provided any such issuance shall only be to a Person which is, itself or through its Subsidiaries, an operating company in a business synergistic with the business of the Company and in which the Company receives benefits in addition to the investment of funds, but shall not include a transaction in which the Company is issuing securities primarily for the purpose of raising capital or to an entity whose primary business is investing in securities.
 
6.5 Short Sales. Each Purchaser, severally and not jointly with the other Purchasers, covenants that neither it nor any Affiliate acting on its behalf or pursuant to any understanding with it will execute any Short Sales (as defined below) during the period commencing on the date hereof and ending 12 months after the Closing. For purposes of this Section 6.5, “Short Sales” means “short sales,” as defined in Rule 200 of Regulation SHO under the Exchange Act (but shall not be deemed to include the location and/or reservation of borrowable shares of Common Stock).
 
6.6 Furnishing of Information. As long as any Purchaser owns the Shares and Warrant Shares, the Company covenants to timely file (or obtain extensions in respect thereof and file within the applicable grace period) all reports required to be filed by the Company after the date hereof pursuant to the Exchange Act. As long as any Purchaser owns the Shares and Warrant Shares, if the Company is not required to file reports pursuant to such laws, it will prepare and furnish to the Purchasers and make publicly available in accordance with Rule 144(c) such information as is required for the Purchasers to sell the Shares and Warrant Shares under Rule 144. The Company further covenants that it will take such further action as any holder of Shares and Warrant Shares may reasonably request, all to the extent required from time to time to enable such Person to sell the Shares and Warrant Shares without registration under the Securities Act within the limitation of the exemptions provided by Rule 144.
 
6.7 Integration. The Company shall not, and shall use its best efforts to ensure that no Affiliate of the Company shall, sell, offer for sale or solicit offers to buy or otherwise negotiate in respect of any security (as defined in Section 2 of the Securities Act) that would be integrated with the offer or sale of the Shares and Warrants in a manner that would require the registration under the Securities Act of the sale of the Shares and Warrants to the Purchasers, or that would be integrated with the offer or sale of the Shares and Warrants for purposes of the rules and regulations of any Trading Market in a manner that would require stockholder approval of the sale of the securities to the Purchasers.
 
6.8 Subsequent Registrations. Other than pursuant to the Registration Rights Agreement, prior to the first to occur of (a) the effective date of the Registration Statement (as defined in the Registration Rights Agreement), or (b) such time as the Warrant Shares may be sold by the Purchasers pursuant to Rule 144, the Company may not file any registration statement (other than on Form S-8) with the Commission with respect to any securities of the Company.
 
6.9 Limitation on Issuance of Future Priced Securities. During the six months following the Closing Date, the Company shall not issue any “Future Priced Securities” as such term is described by NASD IM-4350-1.
 
6.10 Non-Public Information. The Company covenants and agrees that neither it nor any other Person acting on its behalf will provide any Purchaser or its agents or counsel with any information that the Company believes constitutes material non-public information, unless prior thereto such Purchaser shall have executed a written agreement regarding the confidentiality and use of such information. The Company understands and confirms that each Purchaser shall be relying on the foregoing representations in effecting transactions in securities of the Company.
 
15
 
6.11 Listing of Securities. The Company agrees, (i) if the Company applies to have the Common Stock traded on any other Trading Market, it will include in such application the Shares and Warrant Shares, and will take such other action as is necessary or desirable to cause the Shares and Warrant Shares to be listed on such other Trading Market as promptly as possible, and (ii) it will take all action reasonably necessary to continue the listing and trading of its Common Stock on a Trading Market and will comply in all material respects with the Company’s reporting, filing and other obligations under the bylaws or rules of the Trading Market.
 
7. Termination; Liabilities Consequent Thereon. This Agreement may be terminated and the transactions contemplated hereunder abandoned at any time prior to the Closing only as follows:
 
(a) with respect to a Purchaser, by such Purchaser, upon notice to the Company if the conditions set forth in Section 5.1 shall not have been satisfied on or prior to April 11, 2008; or
 
(b) with respect to a Purchaser, by the Company, upon notice to such Purchaser if the conditions set forth in Section 5.2 to be satisfied by such Purchaser shall not have been satisfied on or prior to April 11, 2008; or
 
(c) at any time by mutual agreement of the Company and Purchasers.
 
Any termination pursuant to this Section 7 shall be without liability on the part of any party, unless such termination is the result of a material breach of this Agreement by a party to this Agreement in which case such breaching party shall remain liable for such breach notwithstanding any termination of this Agreement.
 
8. Miscellaneous Provisions.
 
8.1 Indemnification. In addition to the indemnity provided in the Registration Rights Agreement, the Company will indemnify and hold the Purchasers and their directors, officers, shareholders, partners, employees and agents (each, an “Purchaser Party”) harmless from any and all losses, liabilities, obligations, claims, contingencies, damages, costs and expenses, including all judgments, amounts paid in settlements, court costs and reasonable attorneys’ fees and costs of investigation (collectively, “Losses”), that any such Purchaser Party may suffer or incur as a result of or relating to any misrepresentation, breach or inaccuracy of any representation, warranty, covenant or agreement made by the Company in this Agreement, the Registration Rights Agreement or the Warrant, unless any such Losses were as a result of such Purchaser Party’s gross negligence, willful misconduct or bad faith. In addition to the indemnity contained herein, the Company will reimburse any Purchaser Party for its reasonable legal and other expenses (including the cost of any investigation, preparation and travel in connection therewith) incurred in connection therewith, as such expenses are incurred.
 
8.2 Use of Proceeds. The Company shall use the net proceeds from the sale of the Shares and Warrants for working capital and other growth initiatives and not for the prepayment of any portion of the Company’s outstanding notes or debentures prior to their currently-stated maturity date (other than payment of trade payables and accrued expenses in the ordinary course of the Company’s business and consistent with prior practices), or to redeem any Common Stock or Common Stock Equivalents.
 
8.3 Filings. The Company shall make all necessary filings with the SEC and "blue sky" filings required to be made by the Company in connection with the sale of the Shares and, if applicable, the Warrant Shares to the Purchasers as required by all applicable laws, and shall provide a copy thereof to the Purchasers promptly after such filing.
 
16
 
8.4 Public Statements or Releases. Each of the parties to this Agreement agrees that it shall not make, issue, or release any announcement, whether to the public generally, or to any of its suppliers or customers, with respect to this Agreement or the transactions provided for herein, or make any statement or acknowledgment of the existence of, or reveal the status of, this Agreement or the transactions provided for herein, without the prior consent of the other parties, which shall not be unreasonably withheld or delayed. Notwithstanding the foregoing, nothing in this Section 8.4 shall prevent any party hereto from making such public announcements or filings as it may consider necessary in order to satisfy its legal obligations, or from releasing a public statement acceptable to each of the parties hereto upon the completion of the offering contemplated hereby. Notwithstanding the foregoing, as soon as possible but not later than 9:00 a.m. (New York time) on the first Business Day following the Closing Date, the Company will issue a press release acceptable to the Placement Agent and the Purchasers and in accordance with applicable law describing the transactions contemplated by this Agreement, and promptly thereafter file a Current Report on Form 8-K with the SEC, attaching such press release, this Agreement, the Registration Rights Agreement and the form of Warrant.
 
8.5 Further Assurances. The parties agree to cooperate fully to execute such further instruments, documents and agreements and to give such further written assurances, as may be reasonably requested by any party to better evidence and reflect the transactions described herein and contemplated hereby, and to carry into effect the intents and purposes of this Agreement.
 
8.6 Rights Cumulative. Each and all of the various rights, powers and remedies of the parties hereto shall be considered to be cumulative with and in addition to any other rights, powers and remedies which such parties may have at law or in equity in the event of the breach of any of the terms of this Agreement. The exercise or partial exercise of any right, power or remedy shall neither constitute the exclusive election thereof nor the waiver of any other right, power or remedy available to such party.
 
8.7 Notices.
 
(a) Any notices, reports or other correspondence (hereinafter collectively referred to as “Correspondence”) required or permitted to be given hereunder shall be sent by postage prepaid first class mail, courier or facsimile or delivered by hand to the party to whom such correspondence is required or permitted to be given hereunder. The date of giving any notice shall be the date of its actual receipt.
 
(b) All Correspondence to the Company shall be addressed as follows:
 
Odyne Corporation
89 Cabot Court, Suite L
Hauppauge, New York 11788
Attention: Mr. Alan Tannenbaum
                   Chief Executive Officer
Facsimile: (631) 750-1011
 
with a copy to:
 
Greenberg Traurig, LLP
MetLife Building
200 Park Avenue, 15th Floor
New York, NY 10166
Attention: Spencer G. Feldman, Esq.
Facsimile: (212) 801-6400
 
17
 
(c) All Correspondence to any Purchaser shall be sent to such Purchaser at the address set forth in Exhibit A.
 
(d) Any Person may change the address to which correspondence to it is to be addressed by notification as provided for herein.
 
8.8 Captions. The captions and paragraph headings of this Agreement are solely for the convenience of reference and shall not affect its interpretation.
 
8.9 Severability. Should any part or provision of this Agreement be held unenforceable or in conflict with the applicable laws or regulations of any jurisdiction, the invalid or unenforceable part or provisions shall be replaced with a provision which accomplishes, to the extent possible, the original business purpose of such part or provision in a valid and enforceable manner, and the remainder of this Agreement shall remain binding upon the parties hereto.

8.10 Waiver. No waiver of any term, provision or condition of this Agreement, whether by conduct or otherwise, in any one or more instances, shall be deemed to be, or be construed as, a further or continuing waiver of any such term, provision or condition or as a waiver of any other term, provision or condition of this Agreement.
 
8.11 Fees, Costs and Expenses. All fees, costs and expenses (including attorneys' fees and expenses) incurred by any party hereto in connection with the preparation, negotiation and execution of this Agreement and the exhibits hereto and the consummation of the transactions contemplated hereby and thereby (including the costs associated with any filings with, or compliance with any of the requirements of, any governmental authorities), shall be the sole and exclusive responsibility of such party, except as provided in the Placement Agent Agreement between the Company and the Placement Agent.
 
8.12 Assignment. The rights and obligations of the parties hereto shall inure to the benefit of and shall be binding upon the authorized successors and permitted assigns of each party. The Company shall not assign this Agreement or any rights or obligations hereunder without the prior written consent of the Purchasers. Any Purchaser may assign its rights under this Agreement to any person to whom the Purchaser assigns or transfers any Shares, Warrants, and, if applicable, Warrant Shares provided that such transferee agrees in writing to be bound by the terms and provisions of this Agreement, and such transfer is in compliance with the terms and provisions of this Agreement and permitted, with the approval of counsel to the Company, by federal and state securities laws.
 
8.13 Survival. The representations, warranties, agreements and covenants contained herein shall survive the Closing and the delivery of the Shares and Warrants.
 
8.14 Entire Agreement. This Agreement, the Registration Rights Agreement, the Warrants and exhibits attached hereto and incorporated herewith constitute the entire agreement between the parties hereto respecting the subject matter hereof and supersedes all prior agreements, negotiations, understandings, representations and statements respecting the subject matter hereof, whether written or oral.
 
8.15 Amendments. No modification, alteration, waiver or change in any of the terms of this Agreement shall be valid or binding upon the parties hereto unless made in writing and duly executed by the Company and (a) prior to Closing, Purchasers who represent at least 80% of the Shares being sold hereunder or (b) following Closing, Purchasers holding at least 80% of the Shares then held by such Purchasers; provided, however, that, in each case, no such amendment shall increase the obligations of any Purchaser without such Purchaser's written consent.
 
18
 
8.16 Confidential Information. Each of the Company and each Purchaser agrees to keep confidential, and not to disclose to or use for the benefit of any third party, the terms of this Agreement or any other information which at any time is communicated by the other party as being confidential, without the prior written approval of the other party; provided, however, that this provision shall not apply to information which, at the time of disclosure, is already part of the public domain (except by breach of this Agreement) and information which is required to be disclosed by law (including, without limitation, pursuant to Item 601(b)(10) of Regulation S-K under the Securities Act and the Exchange Act) and provided further the Company will not furnish confidential information to a Purchaser without (i) informing such Purchaser regarding the nature of such information and (ii) receiving the prior express written agreement of such Purchaser. Notwithstanding anything herein to the contrary, any party to this Agreement (and any employee, representative, or other agent of any party to this Agreement) may disclose to any and all persons, without limitation of any kind, the tax treatment and tax structure of the transactions contemplated by this Agreement and all materials of any kind (including opinions or other tax analyses) that are provided to it relating to such tax treatment and tax structure. However, any such information relating to the tax treatment or tax structure is required to be kept confidential to the extent necessary to comply with any applicable federal or state securities laws.
 
8.17 Stock Splits, Dividends and other Similar Events. The provisions of this Agreement shall be appropriately adjusted to reflect any stock split, stock dividend, reorganization or other similar event that may occur with respect to the Company after the date hereof.
 
8.18 No Third-Party Beneficiaries. This Agreement is intended for the benefit of the parties hereto and their respective successors and permitted assigns and is not for the benefit of, nor may any provision hereof be enforced by, any other Person, except as otherwise set forth in Section 8.1 (as to each Purchaser Party).
 
8.19 Governing Law. All questions concerning the construction, validity, enforcement and interpretation of this Agreement shall be governed by and construed and enforced in accordance with the internal laws of the State of New York, without regard to the principles of conflicts of law thereof. Each party agrees that all Proceedings concerning the interpretations, enforcement and defense of the transactions contemplated by this Agreement, the Registration Rights Agreement or the Warrants (whether brought against a party hereto or its respective Affiliates, employees or agents) shall be commenced exclusively 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 (including with respect to the enforcement of the any of this Agreement, the Registration Rights Agreement or the Warrants), 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 such 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 legal 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, the Registration Rights Agreement or the Warrants, then the prevailing party in such Proceeding shall be reimbursed by the other party for its reasonable attorneys’ fees and other costs and expenses incurred with the investigation, preparation and prosecution of such Proceeding.
 
19
 
8.20 Rescission and Withdrawal Right. Notwithstanding anything to the contrary contained in (and without limiting any similar provisions of) this Agreement, the Registration Rights Agreement or the Warrants, whenever any Purchaser exercises a right, election, demand or option under this Agreement, the Registration Rights Agreement or the Warrants and the Company does not timely perform its related obligations within the periods therein provided, then such Purchaser may rescind or withdraw, in its sole discretion from time to time upon written notice to the Company, any relevant notice, demand or election in whole or in part without prejudice to its future actions and rights.
 
8.21 Replacement of Securities. If any certificate or instrument evidencing any Shares or Warrant Shares is mutilated, lost, stolen or destroyed, the Company shall issue or cause to be issued in exchange and substitution for and upon cancellation thereof, or in lieu of and substitution therefor, a new certificate or instrument, but only upon receipt of evidence reasonably satisfactory to the Company of such loss, theft or destruction and customary and reasonable indemnity, if requested. The applicants for a new certificate or instrument under such circumstances shall also pay any reasonable third-party costs associated with the issuance of such replacement Shares or Warrant Shares. If a replacement certificate or instrument evidencing any Shares or Warrant Shares is requested due to a mutilation thereof, the Company may require delivery of such mutilated certificate or instrument as a condition precedent to any issuance of a replacement.
 
8.22 Limitation of Liability. Notwithstanding anything herein to the contrary, the Company acknowledges and agrees that the liability of a Purchaser arising directly or indirectly, under this Agreement, the Registration Rights Agreement or the Warrants of any and every nature whatsoever shall be satisfied solely out of the assets of such Purchaser, and that no trustee, officer, other investment vehicle or any other Affiliate of such Purchaser or any Purchaser, shareholder or holder of shares of beneficial interest of such a Purchaser shall be personally liable for any liabilities of such Purchaser.
 
8.23 Counterparts. This Agreement may be executed simultaneously in two or more counterparts (including via facsimile), each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.
 

 
[THE REMAINDER OF THIS PAGE HAS BEEN INTENTIONALLY LEFT BLANK;
SIGNATURE PAGE FOLLOWS.]
 
20
 
IN WITNESS WHEREOF, the parties hereto have executed this Securities Purchase Agreement as of the day and year first above written.
 
ODYNE CORPORATION
 
By:  /s/ Alan Tannenbaum              
Name: Alan Tannenbaum
Title:   Chief Executive Officer
 
[Investor signature pages follow]
 
21
 
Investor Signature Page
 
Odyne Corporation
 
Securities Purchase Agreement
 
The undersigned hereby executes and delivers the Securities Purchase Agreement (the “Agreement”) to which this signature page is attached, which, together with all counterparts of the Agreement and signature pages of the other parties named in the Agreement, shall constitute one and the same document in accordance with the terms of the Agreement.
 
Print Name:                                                                       
 
By:                                                                                      
 
Name:                                                                                 
 
Title:                                                                                   
 
Address:                                                                     
     
                                                                                
 
                                                                  
 
Telephone:                                                                      
 
Facsimile:                                                                          
 
E-mail:                                                                                
 
SSN/EIN#:                                                                        
 
Number of Shares of Common Stock
Purchased:                                                                       
 
Number of Warrants Purchased:                               
 
Aggregate Purchase Price:                                          
 
 
22

EXHIBIT A
 
INVESTORS
 
 
PURCHASER
 
ADDRESS
NUMBER OF
SHARES TO
 BE PURCHASED
 
SHARES TO
 BE ISSUED
UPON EXERCISE
OF
WARRANTS
 
 
 
PURCHASE
 PRICE
 
The Quercus Trust
1835 Newport Blvd.
A109-PMB 467
Costa Mesa, California 92627
 
8,33 3,333
8,333,333
$5,000,000
 
 
 
      
Spinel Finance LLC
310 East Shore Road,
Suite 311
Great Neck, New York 16023
 
3,333,333
3,333,333
$2,000,000
 
 
 
      
Total
  
11,666,666
 
11,666,666
 
$7,000,000
 
 
23

 
EXHIBIT B
 
FORM OF WARRANT
 
24
 
EXHIBIT C
 
REGISTRATION RIGHTS AGREEMENT

 
25
 
 EX-10.2 4 v108510_ex10-2.htm

ODYNE CORPORATION
89 Cabot Court, Suite L
Hauppauge, New York 11788
 
March 27, 2008
 
The Quercus Trust
1835 Newport Blvd.
A109-PMB 467
Costa Mesa, California 92627
 
Spinel Finance LLC
310 East Shore Road, Suite 311
Great Neck, New York 11023
 
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/ Alan Tannenbaum         
Alan Tannenbaum
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
89 Cabot Court, Suite L
Hauppauge, New York 11788
Attention: Mr. Joshua A. Hauser
President and Chief Operating Officer
 
13

 
 EX-99.1 5 v18510_ex99-1.htm
 
 
For Immediate Release

Media Contact:
 
 
Odyne Corporation
Lisa M. DeMarco, 631-750-1010
Director of Marketing + Corporate Communications
lisa@odyne.com
 
ODYNE CORP. COMPLETES $7 MILLION ROUND OF PRIVATE PLACEMENT TO FUND WORKING CAPITAL REQUIREMENTS

HAUPPAUGE, NY, March 28, 2008 - Odyne Corporation (OTCBB: ODYC), a clean technology company that develops advanced plug-in hybrid electric vehicle (PHEV) propulsion systems, today announced that it has completed an initial private placement round of unregistered shares of common stock and warrants to purchase common stock, receiving gross proceeds in the amount of $7 million.

The Quercus Trust, the lead investor in the private placement, also participated in Odyne’s October 2007 convertible debenture financing. Odyne will use the net proceeds of the private placement for its working capital and capital expenditure requirements.

“This financing significantly enhances our working capital position and represents a major step forward in the execution of our business plan,” said Odyne’s CEO, Alan Tannenbaum. “We have three main product lines: PHEV systems for refuse and recycling trucks; PHEV systems for shuttles and buses; and a PHEV system for aerial lift trucks for utility maintenance that has been designed for Dueco Inc. Our objective for 2008 is to deliver reliable, efficient PHEV systems for these platforms. We expect a significant jump in the delivery of our systems in 2008 and this financing allows us to fund that growth.”

Odyne’s common stock and warrants were offered and sold in units only to “accredited investors,” as defined in Regulation D of the Securities Act. Each investor purchased shares of Odyne common stock at $0.60 per share, and five-year warrants purchasing an equivalent number of shares of common stock at an exercise price of $.72 per share, subject to certain anti-dilution provisions.
 
The securities sold in the private placement have not yet been registered under the Securities Act of 1933, as amended, and may not be offered or sold in the United States in the absence of an effective registration statement or exemption from registration requirements. This press release does not constitute an offer to sell or the solicitation of an offer to buy, nor shall there be any sale of these securities in any state in which such offer, solicitation or sale would be unlawful prior to the registration or qualification under the securities laws of any such state. Finance Investments, Inc. acted as placement agent, and Greenberg Traurig, LLP as our counsel, for the transaction.
 
 
 
 
 
About Odyne Corporation

Odyne Corporation is a clean technology company that develops and manufactures propulsion systems for advanced Plug-in Hybrid Electric Vehicles (PHEV), specifically medium and heavy-duty trucks and buses. The company has developed a proprietary system combining electric power conversion, power control and energy storage technology, with standard electric motors, storage batteries and other off the shelf components to create a lower fuel cost, lower operation and maintenance cost, substantially lower emission and quieter vehicle. Odyne’s PHEV systems are series configuration hybrids with significant advantages over the parallel architecture used in hybrid passenger cars. Visit www.odyne.com for more information.

Forward-Looking Statements

This press release contains certain “forward-looking statements” related to the business of Odyne which can be identified by the use of forward-looking terminology such as “believes,” “expects” or similar expressions. Such forward looking statements involve known and unknown risks and uncertainties, including uncertainties relating to product development and commercialization, regulatory actions or delays, the ability to obtain or maintain patent and other proprietary intellectual property protection, market acceptance, future capital requirements, competition in general and other factors that may cause actual results to be materially different from those described herein as anticipated, believed, estimated or expected. Certain of these risks and uncertainties are or will be described in greater detail in our public filings with the U.S. Securities and Exchange Commission. Odyne is under no obligation to (and expressly disclaims any such obligation to) update or alter its forward-looking statements whether as a result of new information, future events or otherwise.

*      *     *
 
 GRAPHIC 6 v108510_header.jpg GRAPHIC begin 644 v108510_header.jpg M_]C_X``02D9)1@`!`@$`2`!(``#_X0V%17AI9@``34T`*@````@`!P$2``,` M```!``$```$:``4````!````8@$;``4````!````:@$H``,````!``(```$Q M``(````;````<@$R``(````4````C8=I``0````!````I````-````!(```` M`0```$@````!061O8F4@4&AO=&]S:&]P($-3(%=I;F1O=W,`,C`P.#HP,SHR M."`P,#HP-#HP-````````Z`!``,````!``$``*`"``0````!````R*`#``0` M```!````/``````````&`0,``P````$`!@```1H`!0````$```$>`1L`!0`` M``$```$F`2@``P````$``@```@$`!`````$```$N`@(`!`````$```Q/```` M`````$@````!````2`````'_V/_@`!!*1DE&``$"`0!(`$@``/_M``Q!9&]B M95]#30`!_^X`#D%D;V)E`&2``````?_;`(0`#`@("`D(#`D)#!$+"@L1%0\, M#`\5&!,3%1,3&!$,#`P,#`P1#`P,#`P,#`P,#`P,#`P,#`P,#`P,#`P,#`P, M#`$-"PL-#@T0#@X0%`X.#A04#@X.#A01#`P,#`P1$0P,#`P,#!$,#`P,#`P, M#`P,#`P,#`P,#`P,#`P,#`P,#`P,_\``$0@`,`"@`P$B``(1`0,1`?_=``0` M"O_$`3\```$%`0$!`0$!``````````,``0($!08'"`D*"P$``04!`0$!`0$` M`````````0`"`P0%!@<("0H+$``!!`$#`@0"!0<&"`4###,!``(1`P0A$C$% M05%A$R)Q@3(&%)&AL4(C)!52P6(S-'*"T4,')9)3\.'Q8W,U%J*R@R9$DU1D M1<*C=#87TE7B9?*SA,/3=>/S1B>4I(6TE<34Y/2EM<75Y?569G:&EJ:VQM;F M]C='5V=WAY>GM\?7Y_<1``("`0($!`,$!08'!P8%-0$``A$#(3$2!$%187$B M$P4R@9$4H;%"(\%2T?`S)&+A7U5F9VAI:FML;6YO8G-T=7 M9W>'EZ>WQ__:``P#`0`"$0,1`#\`]522224I))))2DDDDE*22224I))))2DD MDDE*22224I))0NNKHJ=;:X,K8)J9E=F0VL;K,2H09)_1^K=_@Z&_\`:FS;[%DRS_N.G'%@Y;`3S%7,>K](T/5P0=_J/6^F]-P/M^5RP`.#F\_1+F.^E^:O-<%UOUF^L%+ M>JN>:`USGMQP&UT4M&[:V3MQ<3\RR_\`G7KHG?7+9U#$Z+]4\.N_%K<&<$![ M9_2?9]NWTZF?3LS+O_5G0'EB(B.^2N*:$I&6V*^&`WR3+__0V;_K M%]9_K'U&["^K8;C8=!VNRB!)$[6VV6O:_P!/U-OZ&FFOUMBF_H'^,/%;Z^/U M<9-C=?1+N?)OVBOT?\_TT3_%A_0<_P#X]O\`U#5VJLY,GMS,(QCPQ[CBXO[S M5Q8_=@,DI2XI:Z'A$?[KS/U0^M.3U9]_3NI5>CU+$$O@%H/=8#*+A,RL=._QEXME(VMSV`V-&@)>VRI_^ M<^AEB;CGQV#&/%$<<2!^[^B5^2'M\)$I<,CP2!-_-^D'<^J'UE9US`BXAO4, M:&Y-<1/9M[&_N61[F_X*W]&M+J_5<7I&!;G93HKK'M:/I/>?YNJO^78YM_.V._08W_"WH>U"1]P&L6\N\3_F_P#O4^[.(]LB\NT> MTA_G/^^98W4OK/;]7.L_6'(R74UY+!]AI`'Z,!PK==1(]C-CO3K_`-+_`$C] MQ:7U&^M3NI4GIF?9NSZ!-=CN;JQ^=_Q]/^%_?_G?](M#ZY,97]4\ZMC0QC*F MM:UH@`!S`UK6AZS8/<]C'OBT#_``EM+?I[OZ11 M^C_T:?'@R0-@0XI\,#^[Z?2LE[F/(*)GPPXIC]_U>I]*7(_5SJG4LGZW=9P\ MC)?;BXY?Z%+HVLBP-&V&[OHK7^K/UAQ^O=.;DLAF17#,FD'Z#XY;_P`%;].E MZY_ZJ?\`BXZ_\7_^?`HH0H91(:QC_P!TRSG9Q&)TD7/Z5=]=>OWYKL+J@I&- M<6N99#1[B_8*ME-OM:UBT?V#_C%_\N:?O/\`[S++^J'UDZ5T.WJ8Z@]S#D7S M6&,+Y#38'?1_K+H__'&^J_\`I;?^VG?W*;)[@D1#&#'2O0PXO;,`9Y"):WZ_ M%VNCT=0Q^F8]/4KAD9K&Q?W=6^")'P?YVV'G^L_W_E6'\6RR$8P&GN2/ M%T^3]'_G.W\,QQ,C/?VP.'_"_2=CH73-VW.O&G..P_\`GYW_`**6X]C7M+'@ M.:X$.:1((/((3M:&M#6B`-`!V`3JUR^".'&(1\Y2_>EW:V?-+-,REY1'[L>S MYU]9^@9F#97TKI-+GFW.W/=32QWZIC_S?_;:W_J7@8&! M1;34P?:]#;D'Z=C3]'^HRMWM])JU^N5L?TRXNY8`]I\'-.BQ>A.X;QW_`*E;?U9^JV']7Z'BMQORKH];(<-LAOT*JJ_= MZ53?_.US6!]3?KITYCV8'4L?&9:[>]K'/U/9WOH=^:G&4)B<1(#2`B9?I<"T M0G`XY&)EK,R$?T>-]`7`U7-ZY_C';=CGU,;IS"#8./T8`YXD'GW-QVN6]]5_JSC?5_$=6UWK9-Q!OOC:#M^A76S79 M56F#@QQD>,3E(<,>'^MN5YX\LHC@,(Q/'(RZUM%N]:_Y&S__``M=_P!0Y87^ M+;_Q,M_X^W\H71=1QWY73\G&K(%E]-E;"[@%[7,;NC\W59GU0Z+E]$Z.,',? M6^T6/?-1<6P[C^<:QR:)#VI"]3(&EYB?>C*M!$BUOKM_XENH?\6W_JV)?4G_ M`,2W3_\`BS_U;U:^L73K^J=$R\#'&]>.Z\.%7"??XJ]/!PWX\3R76\+)^J'6V=>Z M8R>FY+MF7CMT:TN,NK_D,L=^DQ7?X&_]#_-6(GU,R*P58Q$^ MH6[O4F[0-:YGT/Y:D&6,L\,<_75Q9NW4/_-9')4IF0RQ`-:7)&* MXP$9822+UJ/=[.JJNFMM53&UUL`:QC0&M`'#6M;]%C_A.IR7,#%.Y"H3%2_J]O\5%TKJE>94V MNQP;E-$/8=-T?X1G[S7*^N0R>FYN,Z+:2YHU%M#+C)G'2R>`R_O>EM2Y#'D/'BR`0.M?/P_W76Z[U.J MYOV/'=O;(-SQQIJVII_.]WTU'ZN8SGWV91'LK'IL/BXZO_S57PNB9F2X&QIQ MJ.[G"'D>%=?YO]9ZZ6BBK'I;34W;6P0UH3N6Q9<^?[QF'#&/R#;^[PC]V/S+ M>8R8L.'V,1XC+YI?]+_"?__9_^T2/E!H;W1O#A"24T$&0``````!````!XX0DE-`_,````` M``D```````````$`.$))300*```````!```X0DE-)Q````````H``0`````` M```".$))30/U``````!(`"]F9@`!`&QF9@`&```````!`"]F9@`!`*&9F@`& M```````!`#(````!`%H````&```````!`#4````!`"T````&```````!.$)) M30/X``````!P``#_____________________________`^@`````________ M_____________________P/H`````/____________________________\# MZ`````#_____________________________`^@``#A"24T$"```````$``` M``$```)````"0``````X0DE-!!X```````0`````.$))300:``````-1```` M!@``````````````/````,@````.`'8`,0`P`#@`-0`Q`#``7P!H`&4`80!D M`&4`<@````$``````````````````````````0``````````````R````#P` M`````````````````````0`````````````````````````0`````0`````` M`&YU;&P````"````!F)O=6YD'1)D%L:6=N96YU M;0````]%4VQI8V5(;W)Z06QI9VX````'9&5F875L=`````EV97)T06QI9VYE M;G5M````#T53;&EC959E7!E96YU;0```!%%4VQI8V5"1T-O;&]R5'EP90````!.;VYE````"71O<$]U M='-E=&QO;F<`````````"FQE9G1/=71S971L;VYG``````````QB;W1T;VU/ M=71S971L;VYG``````````MR:6=H=$]U='-E=&QO;F<``````#A"24T$*``` M````#`````$_\````````#A"24T$%```````!`````(X0DE-!`P`````#&L` M```!````H````#````'@``!:````#$\`&``!_]C_X``02D9)1@`!`@$`2`!( M``#_[0`,061O8F5?0TT``?_N``Y!9&]B90!D@`````'_VP"$``P("`@)"`P) M"0P1"PH+$14/#`P/%1@3$Q43$Q@1#`P,#`P,$0P,#`P,#`P,#`P,#`P,#`P, M#`P,#`P,#`P,#`P!#0L+#0X-$`X.$!0.#@X4%`X.#@X4$0P,#`P,$1$,#`P, M#`P1#`P,#`P,#`P,#`P,#`P,#`P,#`P,#`P,#`P,#/_``!$(`#``H`,!(@`" M$0$#$0'_W0`$``K_Q`$_```!!0$!`0$!`0`````````#``$"!`4&!P@)"@L! M``$%`0$!`0$!``````````$``@,$!08'"`D*"Q```00!`P($`@4'!@@%`PPS M`0`"$0,$(1(Q!4%181,B<8$R!A21H;%"(R054L%B,S1R@M%#!R624_#A\6-S M-1:BLH,F1)-49$7"HW0V%])5XF7RLX3#TW7C\T8GE*2%M)7$U.3TI;7%U>7U M5F9VAI:FML;6YO8W1U=G=X>7I[?'U^?W$0`"`@$"!`0#!`4&!P<&!34!``(1 M`R$Q$@1!46%Q(A,%,H&1%*&Q0B/!4M'P,R1BX7*"DD-3%6-S-/$E!A:BLH,' M)C7"TD235*,79$55-G1EXO*SA,/3=>/S1I2DA;25Q-3D]*6UQ=7E]59F=H:6 MIK;&UN;V)S='5V=WAY>GM\?_V@`,`P$``A$#$0`_`/54DDDE*22224I))))2 MDDDDE*22224I))))2DDDDE*224+KJZ*G6VN#*V"7./8($@`DF@%`$FAJ2BSL MRK"QW76:QHU@Y2^NX_IJQPT#Z)I'_!_P#@B!U#/LS; MS<^6UMTIK\`?_1MBEU'#/2NE'JF979D-K&ZS$J$&2?T?JW?X.AO_`&ILV^Q9 M,LW,.?_`'O[CIQQ8.6P$\Q5S'J_2-#U<$'?ZCUOIO3< M#[?E7`4$?H]ON=83]&NEG^$>Y0Z!UW&Z[@?;<9CZFA[JGLL`#@YO/T2YCOI? MFKS7!=;]9OK!2WJKGF@-V?TGV?;M].IGT[,R[_U9T!Y8B(CODKBG(:8X.%'FA*1EMBO MA@-\DR__T-F_ZQ?6?ZQ]1NPOJV&XV'0=KLH@21.UMMEKVO\`3]3;^AIIK];8 MIOZ!_C#Q6^OC]7&38W7T2[GR;]HK]'_/]-$_Q8?T'/\`^/;_`-0U=JK.3)[< MS",8\,>XXN+^\U<6/W8#)*4N*6NAX1'^Z\S]4/K3D]6??T[J57H]2Q!+X!:' M-!]-^ZMW\U;6_P#G6?\`;:YOH+_KOUVJZW#ZL&-QW['"Z`23[O;Z=-BU/J]_ M^4+K?_%N_P"JQTO\5_\`0^H_\>W_`*E./#`9)1B-LNMUC>K5VN8"YM;70YQ'YC?4QVU^[^6AXOU@ZY]8.A9>! MCVNQ.O8,6.V-V.NK8[;8QC7?T?(W_H[6?Z3_`(.[]'WBX3,K'3O\9>+92-K< M]@-C1H"7MLJ?_G/H98FXY\=@QCQ1''$@?N_HE?DA[?"1*7#(\$@3?S?I!W/J MA]96=QO[ED>YO^"M_1K2ZOU7%Z1@6YV4Z*ZQ[6CZ3W MG^;JK_EV.7*?6OI67T/J;?K7T<1#OU^D?1(=H^QS1_@K_P#M1_H[?3RO](JS M/M/U[ZVU[V/IZ#@1+':%[R)=6=I_GK?SMCOT&-_PMZ'M0D?2P?8:0!^C`<*W742/8S M8[TZ_P#2_P!(_<6E]1OK4[J5)Z9GV;L^@378[FZL?G?\?3_A?W_YW_2+0^N3 M&5_5/.K8T,8RIK6M:(``[^D4?H_]&GQX,D#8$.*?#`_N^GTK)>YCR"B9\,.*8_?]7J?2ER/ MUN?^JG_`(N.O_%__GP**$*&42&L8_\`=,LYV<1B=)%S^E7? M77K]^:["ZH*1C7%KF60T>XOV"K93;[6M8M']@_XQ?_+FG[S_`.\RR_JA]9.E M=#MZF.H/X)$0Q@QTKT, M.+VS`&>0B6M^OQ=KH]'4,?IF/3U*X9&:QL7W-X41^['L^=?6?H&9@V5]*Z32W'Z/EDV6N9,OL:=WIYMSMSW4TL=^J8_ M\W_VVM_ZEX&!@46TU,'VO0VY!^G8T_1_J,K=[?2:M?KE;'],N+N6`/:?!S3H ML7H3G-ZI6!^>QX=\``[_`*I1/,X<-CVI5Q`;Y)9#P<627]5?R_(X3@R MYJ/N1OA)VQQAZ^&`_K/_T=[_`!8/9]DZA7N&\7,<6=X+-N[;^[[5VZX[JOU$ MR!U%_4_J]F?8,BQQE4W_SMN?XQVW8Y]3&Z)!Y]S<=KEO?5?ZLXWU?Q'5M=ZV3<0 M;[XV@[?H5ULUV55I@X,<9'C$Y2'#'A_K;E>>/+*(X#",3QR,NM;1;O6O^1L_ M_P`+7?\`4.6%_BV_\3+?^/M_*%T74<=^5T_)QJR!9?396PNX!>US&[H_-U69 M]4.BY?1.CC!S'UOM%CWS47%L.X_G&L8GWHRK01(M;Z[?^); MJ'_%M_ZMB7U)_P#$MT__`(L_]6]6OK%TZ_JG1,O`QW-;=>R*R^=L@A_NC][: ME]7>G7]+Z)B8&0YKKJ&0\LG;))?#9_=W)<0]GAO7CNO#A5PGW^*O3P<-^/$\ MEUO"R?JAUMG7NF,GIN2[9EX[=&M+C+J_Y#+'?I,5W^!O_0_S5B)]3,BG*^M_ M6>G]1Q\9N187O#'/UU<6;MU#_S7*Q^P/\`&)_Y=5?YSO\`WF1R M5*9D,L0#6ER1BN,!&6$DB]:CW>SJJKIK;54QM=;`&L8T!K0!PUK6_17)]3Q3 MC9MU1T:XFRL_R7'=I_4>NBZ/1U#'Z9CT=2N&1FL;%US=0XR=?HU_F_R%+J/3 MJL^H,<=EC-:[!RTG_JF._.:LOG^6.:%1-S@28_U_WH_X3JFZRVQO&PN<[_H2JNEHHJQZ6TU-VUL$-:$[EL67/G^\9APQ MC\@V_N\(_=C\RWF,F+#A]C$>(R^:7_2_PG__V0`X0DE-!"$``````%,````! M`0````\`00!D`&\`8@!E`"``4`!H`&\`=`!O`',`:`!O`'`````2`$$`9`!O M`&(`90`@`%``:`!O`'0`;P!S`&@`;P!P`"``0P!3`````0`X0DE-!`8````` M``<`!`````$!`/_A%_EH='1P.B\O;G,N861O8F4N8V]M+WAA<"\Q+C`O`#P_ M>'!A8VME="!B96=I;CTG[[N_)R!I9#TG5S5-,$UP0V5H:4AZDY48WIK M8SED)S\^"CQX.GAM<&UE=&$@>&UL;G,Z>#TG861O8F4Z;G,Z;65T82\G('@Z M>&UP=&L])UA-4"!T;V]L:VET(#,N,"TR."P@9G)A;65W;W)K(#$N-B<^"CQR M9&8Z4D1&('AM;&YS.G)D9CTG:'1T<#HO+W=W=RYW,RYO&UL;G,Z:5@])VAT='`Z+R]N&UL;G,Z<&AO=&]S:&]P/2=H='1P.B\O;G,N861O8F4N8V]M M+W!H;W1O3X*(#PO&%P.DUE=&%D871A1&%T93X*("`\>&%P.D-R96%T;W)4;V]L/D%D M;V)E(%!H;W1O&UL;G,Z>&%P34T])VAT='`Z+R]N&%P+S$N,"]M M;2\G/@H@(#QX87!-33I$;V-U;65N=$E$/F%D;V)E.F1O8VED.G!H;W1O&UL;G,Z9&,])VAT='`Z+R]P=7)L+F]R9R]D M8R]E;&5M96YT&UP;65T83X*("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@ M("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@ M("`@("`@("`@("`@("`@("`@(`H@("`@("`@("`@("`@("`@("`@("`@("`@ M("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@ M("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@"B`@("`@("`@("`@("`@ M("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@ M("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@("`*("`@ M("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@ M("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@ M("`@("`@(`H@("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@ M("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@ M("`@("`@("`@("`@("`@("`@"B`@("`@("`@("`@("`@("`@("`@("`@("`@ M("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@ M("`@("`@("`@("`@("`@("`@("`@("`@("`@("`*("`@("`@("`@("`@("`@ M("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@ M("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@(`H@("`@ M("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@ M("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@ M("`@("`@"B`@("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@ M("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@ M("`@("`@("`@("`@("`@("`*("`@("`@("`@("`@("`@("`@("`@("`@("`@ M("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@ M("`@("`@("`@("`@("`@("`@("`@("`@("`@(`H@("`@("`@("`@("`@("`@ M("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@ M("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@"B`@("`@ M("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@ M("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@ M("`@("`*("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@ M("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@ M("`@("`@("`@("`@("`@(`H@("`@("`@("`@("`@("`@("`@("`@("`@("`@ M("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@ M("`@("`@("`@("`@("`@("`@("`@("`@("`@"B`@("`@("`@("`@("`@("`@ M("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@ M("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@("`*("`@("`@ M("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@ M("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@ M("`@(`H@("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@ M("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@ M("`@("`@("`@("`@("`@"B`@("`@("`@("`@("`@("`@("`@("`@("`@("`@ M("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@ M("`@("`@("`@("`@("`@("`@("`@("`@("`*("`@("`@("`@("`@("`@("`@ M("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@ M("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@(`H@("`@("`@ M("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@ M("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@ M("`@"B`@("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@ M("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@ M("`@("`@("`@("`@("`*("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@ M("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@ M("`@("`@("`@("`@("`@("`@("`@("`@(`H@("`@("`@("`@("`@("`@("`@ M("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@ M("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@"B`@("`@("`@ M("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@ M("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@ M("`*("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@ M("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@ M("`@("`@("`@("`@(`H@("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@ M("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@ M("`@("`@("`@("`@("`@("`@("`@("`@"B`@("`@("`@("`@("`@("`@("`@ M("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@ M("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@("`*("`@("`@("`@ M("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@ M("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@ M(`H@("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@ M("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@ M("`@("`@("`@("`@"B`@("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@ M("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@ M("`@("`@("`@("`@("`@("`@("`@("`*("`@("`@("`@("`@("`@("`@("`@ M("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@ M("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@(`H@("`@("`@("`@ M("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@ M("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@ M"B`@("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@ M("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@ M("`@("`@("`@("`*("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@ M("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@ M("`@("`@("`@("`@("`@("`@("`@(`H@("`@("`@("`@("`@("`@("`@("`@ M("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@ M("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@"B`@("`@("`@("`@ M("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@ M("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@("`* M("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@ M("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@ M("`@("`@("`@(`H@("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@ M("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@ M("`@("`@("`@("`@("`@("`@("`@"B`@("`@("`@("`@("`@("`@("`@("`@ M("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@ M("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@("`*("`@("`@("`@("`@ M("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@ M("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@(`H@ M("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@ M("`@("`@("`@"CP_>'!A8VME="!E;F0])W0``9&5S8P`````````2D!\@'Z`@,"#`(4`AT")@(O`C@"00)+`E0"70)G`G$">@*$`HX" MF`*B`JP"M@+!`LL"U0+@`NL"]0,``PL#%@,A`RT#.`-#`T\#6@-F`W(#?@.* M`Y8#H@.N`[H#QP/3`^`#[`/Y!`8$$P0@!"T$.P1(!%4$8P1Q!'X$C`2:!*@$ MM@3$!-,$X03P!/X%#044%]@8& M!A8&)P8W!D@&609J!GL&C`:=!J\&P`;1!N,&]0<'!QD'*P<]!T\'80=T!X8' MF0>L![\'T@?E!_@("P@?"#((1@A:"&X(@@B6"*H(O@C2".<(^PD0"24).@E/ M"60)>0F/":0)N@G/">4)^PH1"B<*/0I4"FH*@0J8"JX*Q0K<"O,+"PLB"SD+ M40MI"X`+F`NP"\@+X0OY#!(,*@Q##%P,=0R.#*<,P`S9#/,-#0TF#4`-6@UT M#8X-J0W##=X-^`X3#BX.20YD#G\.FPZV#M(.[@\)#R4/00]>#WH/E@^S#\\/ M[!`)$"800Q!A$'X0FQ"Y$-<0]1$3$3$13Q%M$8P1JA')$>@2!Q(F$D429!*$ M$J,2PQ+C$P,3(Q-#$V,3@Q.D$\43Y10&%"<4211J%(L4K13.%/`5$A4T%585 M>!6;%;T5X!8#%B86219L%H\6LA;6%OH7'1=!%V47B1>N%](7]Q@;&$`891B* M&*\8U1CZ&2`911EK&9$9MQG=&@0:*AI1&G<:GAK%&NP;%!L[&V,;BANR&]H< M`APJ'%(<>QRC',P<]1T>'4<=:AZ4'KX>Z1\3'SX?:1^4 M'[\?ZB`5($$@;""8(,0@\"$<(4@A=2&A(B>K M)]PH#2@_*'$HHBC4*08I."EK*9TIT"H"*C4J:"J;*L\K`BLV*VDKG2O1+`4L M.2QN+*(LURT,+4$M=BVK+>$N%BY,+H(NMR[N+R0O6B^1+\<-]1B)&9T:K M1O!'-4=[1\!(!4A+2)%(UTD=26-)J4GP2C=*?4K$2PQ+4TN:2^),*DQR3+I- M`DU*39--W$XE3FY.MT\`3TE/DT_=4"=0<5"[40914%&;4>92,5)\4L=3$U-? M4ZI3]E1"5(]4VU4H5755PE8/5EQ6J5;W5T17DE?@6"]8?5C+61I9:5FX6@=: M5EJF6O5;15N56^5<-5R&7-9=)UUX7&EYL7KU?#U]A7[-@!6!78*I@_&%/ M8:)A]6))8IQB\&-#8Y=CZV1`9)1DZ64]99)EYV8]9I)FZ&<]9Y-GZ6@_:)9H M[&E#:9II\6I(:I]J]VM/:Z=K_VQ7;*]M"&U@;;EN$FYK;L1O'F]X;]%P*W"& M<.!Q.G&5&YX MS'DJ>8EYYWI&>J5[!'MC>\)\(7R!?.%]07VA?@%^8G["?R-_A'_E@$>`J($* M@6N!S8(P@I*"](-7@[J$'82`A..%1X6KA@Z&I+C MDTV3MI0@E(J4])5?EAMJ(FHI:C!J-VH^:D5J3'I3BEJ:8: MIHNF_:=NI^"H4JC$J3>IJ:H_R#W(O,DZR;G*.,JWRS;+MLPUS+7--:6YQ_GJ>@R MZ+SI1NG0ZEOJY>MPZ_OLANT1[9SN*.ZT[T#OS/!8\.7Q$S%F+P)'*"\25#-%.2HK)C<\(U1">3H[,V%U1D=,/2X@@F M@PD*&!F$E$5&I+16TU4H&O+C\\34Y/1E=865I;7%U>7U9G:&EJ:VQM;F]C=' M5V=WAY>GM\?7Y_(B8J+C(V.CX*3E)66EYB9FINGM\?7Y_(B8J+C(V.CX.4E9:7F)F:FYR=GI^2HZ2EIJ>HJ: MJKK*VNKZ_]H`#`,!``(1`Q$`/P#U3BKL5=BKL5=BKL5=BKL5=BKL5=BKL5=B MKL5=BKL5=BKL5=BKL5:9@JEB0`!4D]`,!-*`\W\R^;KF[U&/]'2F.VM'Y1N/ M]V./VC_DYQO:/:TLF0>&>&&,^G^G+_B7K-!V9&&,^(+ED'^EBS/RYK\&L60E M%$N(Z+<0]U;Q'^2>V='V=KXZB%\ICZXN@UVBE@G7\)^F2GYH\Y>7/*]HEUK= MXMK'(W&):%G8_P"2BU8T[YM<6&60U$.LS:B&,7(IEIVHV6I6,%_92K/:7*"2 M&9.C*PJ#D)1,31YMD)B0L*!V_R MDO\`>?\`%/1]D]GU668_J#_?L0@MKB?F((FE]->;A!6B]*[9ST,-J<5;I)=$?97P7[6=I[.]@93+Q9 M^@?S?^*>-]H>W\48^'"IG\?2P7ROY0\W?FMK\NKZM=LNGH_"YO#T4=?0MX^@ MV.=QFS0TT>&(W>(P8,FKGQ2/I>UGSQ^7GDN;3_*'UP0R1*D,<2@R"*NR^LXV M5F/CFI\#+EN=.[_,XL-8[?_1],:WYBT/0[7ZUJ][%90?LM*P4L?!1U8_+)X\ MDZG%//U^KL2DOT(]&/T91ETV2'U!R,.KQY/I*9Z[KNF:%I,S-#FVY;?+OF.U:YT6^CO(T- M)`IHZ'_*0T9?I&8V7#*!J0IR<6>&07$VA=!\_P#E77=8OM(TV]$U_IY(GB(* MUXGBQ0G[85MCQR633SA$2(VDQQZJ$Y&(.\60Y2Y#L58Y:_F#Y4NO,T_EJ"]5 M]6ME9Y(P#P^`5=0_V2R#[2Y>=/,0XZ]+CQU6,SX`?4WY5\_^5O-,UW#HUV)Y M;)N,R%2C4K3FH;[2$_M8,NGGCKB'-<.IADOA/)D64N0IW-Q%;6\MQ,>,4*M) M(W6BJ*D[80+-(D:%I)Y5\]>6?-27#Z'=_6EM2HG/!TXEZD?:`\,MS8)XZXAS M:<.IAEOA/))[W\Z/RYLKR:SGU8>O;NTF:CZ][<5] M&+TI%KQ!8[LH'09#)H\D(\1&S/%KL4Y<,3NR_,5S&+^<_,QT^'ZC:-_ILR[L M/]UH>_\`K']G-'VQVEX,?#A_>2_V$7<=E:#Q9<>ZN$MX%,D M\S45>I)/4G^.X8_8^SG6:/6QX*EMPO(:_LZ1R7'<229_-=IY!TJZT#RM?&]UR M\H-7UA"3;Q,M1Z5HG1F6M/6RWP3FEQS'#`?3'_BVDYQIX\&,\4Y?5+_B&2?E M7^2ESJ,T/F7S9R]*1A<6UBY)DF8_$)9R=Z'KP_:_:S'U7:``X/+_I?^*?_TA'ES1-7_-WSO>W>J7K0V-O^\D`-3'"S4CAA4_"ONV=#ER1T MV,`#=Y?#CEJ\A,CZ7L5M^17Y:PVXA;3#.P%#+)+(7/O4$#[AFJ.ORD\W<#LS M"!R>:?FK^3MMY3L1YF\MW4L$%M(GJP,Y]2(LU%>*04;9J?"V;#2:TY#P3#K= M=V>,0XX%DNM^8K[S#_SCU-J=\>5X\21SO_.T4X3G_LJ5S'QXA#4T.3DY7=4 ML?S*\GDI8712YG5/LQO**\F`_P!TS`T?_*RO2Y1.)PY.;;K,)QR&?'R.[V;R M+YTTWS=H$.J69"R'X+NWK5HI@/B0^W\I_:7-7J,!Q2HNYTVH&6'$&,_G+^9: M>5=(.GV#@Z]?H5@`W,,9V,I'CVC_`,K+]%I?$E9^F+C=H:SPHT/KDD_Y/?EI M)HFBW7F364)UO4()&B63=H874L:U_P!VR=7RW6ZKCD(1^F+3H-'P0,Y?7(/# MO*VN:YYNP9HY(B01/F'_`(X. MH_\`,--_R;.1Q_4/>RS?0?<\9_YQB_WC\P_Z\/\`Q%\VO:O.+INQ^4V+_E9Y M-T#S5YWU^SUJ!IX(/5EB579"&,]*U6G;+]7GECQQ,7&T6GAERR$@]9_Y4'^6 MG_+!+_R/D_KFN_E'+WNV_DO#W)AH/Y/^1M!U:#5M-LY(KVVY&)VF=@.2E3L3 M3H M,SD(C^)XY>7DUY=37)(?O)_["#RW:NN\2?!'Z(?[*3)\W MCJ%"^LK>^LI[.Y7G;W,;12K4BJ.*$5'L<,9$&PQE$2!!ZOGR+\K+3RQKMRMT MPNC&Y:PY#X1"3\#&O5QT.:3VC[?S3/@1_=0KUR_BR_\`''9>SWL_AA^^E^\G M?H_VO_C[US\O=5>>QEL)&J]J08Z]?3;M_L3E'8&IXH'&?\G]/]1R^V]/PS$Q M_'_NG__3D_\`SC%_QUM<_P",$/\`Q(YNNU>47GNQ.A>??GQ_Y+/4O M]>#_`).KF;V?_>AU_:G]R6"VG_K,\_S;_J*&99_QO\?S7!C_`(D?Q_$S/_G' MW_R6]M_QGG_XGF+VC_>ES>RO[D>]Z1F"[%Y;_P`Y%Z?%<>01=,!ZEG=1.C=Z M/5"/QS8=FRK)7>'5]K0O%?<4R_*%8=9_*C3K34$%Q;O%+:RQON&C5V2G_`Y# M6^G,2&S0>O``7E=TNN_DSYXDEM4:[\OZ@K>E&QHLJ#[*,W[,T)[_`+2YL8\. MJQ[[3BZN7%H\MC>$DU_*OR=J?G?S+/Y[\S@RVHEYV<3CX994/PT!_P!TP]%_ MF;*M7F&*'APYMNBT\LT_%GR_A>\7_P#O!<_\8G_XB;O9\B^??R`T73]; MM_-FE:A'ZMG=QPI*G^R>C#P93NIS==HS,."0YAT'96,3$XGD4+H.I:Q^3_GR M72=3+2^7[Y@6DH>+1$T2X3_+C^S*N3R0CJW%O(LL$UG*\4BFJLK1D@@^^:7&")@'O=_D(.,D?S7CW_.,7^\?F'_`%X? M^(OFT[5YQ=/V/RFP[\O//FD^3/.>NWVI13317+2PQK`%+!A,6WY%=LRM3II9 M<<0'#TFJCARR,GI7_0R_DO\`Y8;_`/X"/_FO,#^2\G>'9?RQC[I)SY1_/#RI MYGUR'1K2"Z@NK@,83,B\&*#D156:FPRK-H)XX\1IOT_:4,LN$`LJ\XEAY M/7@`?D2*YS_:Y/Y:==SO^S/\8C[WF%BB/?6J/_=M+&&^7(9P^$`SB#RXHO8Y MB1"1'/A+V=0`*#H.F>DA\_;PJ[%6"_F5'&);"0#]Z0ZD]^(HD`^R8&Y?0PIF+V`3^8/]1R>VP/!']9__]23_P#.,7_' M6US_`(P0_P#$CFZ[5Y1>>[$YR?06:5Z%Y]^?'_DL]2_UX/\`DZN9O9_]Z'7] MJ?W)8+:?^LSS_-O^HH9EG_&_Q_-<&/\`B1_'\3,_^?_B>8O:/ M]Z7-[*_N1[WI&8+L7D7_`#DEK<-MY2M=*#CZQ?W"OP[^E""2W_!%1FS[+AYU';&0#&(]9%EGY0Z7+IOY=Z+;S#C(\/KLIZCUF,@_!LQM9/BRDN7H(&.&( M+%?^_P`Q?*'_`(D^ M;CM7E%T?8W.3T_\`,GR#9>S?C'J$%9-/NB-TDI]D_P"0_1\U^EU!Q2OI M_$[/6:49H5U_A>2?EIY[OM%M]5\@^9"8'BAN(K!Y33TY0AK`2?V'^U$PQB5XXYU#A6]>E0#WRW79)1Q1HU_8T]GXHSS2$A;VO_`)5IY!_Z ML%E_R)7-3^:R?SB[K\GB_FQ1FE>3/*>DW8N]-TFUM+H`J)HHU5P#U`.1GGG( M422&<-/CB;``*/U2S%[IUS:G_=T;(/F1M^.86JP^+BE#^<',T^7P\D9?S2\< M=)(I&C<%)8F*L.X93GG1B0:/,/>`B0L,[0T9PY#_,E])3G-DX"V22..-I)&"(HJS$T``R, MI"(L[!(!)H/*_-6M+JVJ&6+_`'FA'IP>XKNW^RSA.T]9^8RV/HCZ8_\`%/9] MFZ3P,='ZI>J2??EOI[?Z5J#"BM2&(^--V.;7V>P'U9#_`%(_[YUO;N<>G'_G M/__5--:\L>>ORM\TS:SY?B>YT:4GA(BF2,Q$U]*X1=UX_LOF^AFQZB'#+ZGF M\F#+I9\4-X)_;_\`.3T:P`76@N+D#XO3F`0G_9+R&4'LKNDY`[9VWBQK7?-G MYB_FK<1:3ING-;Z7S#&&,-Z0(Z//,P`/'^7,C'AQ:<<1/J<7+GS:H\(%1>B> M=O+$7E?\B[K1$D]9K:*/U9:?:D:96<@>'([9@X,OB:@2=CJ<'AZ4Q#SKR!^= MLOE'RW%HJZ.;OTY))/7,I2O,UIQX-TS.U&A&2?%Q4Z[2=HG%#AX;9'_T,[YNC_`+J/N9!?`FRN`!4F-P`/]4Y3'FWSY%X9_P`XRI(+WS&2 MK`#T5)((HP9ZCYYM^U#M%TG8X-R>\YIW>O)/SR_+']-V#>8M)BKK%DG^DQ(- M[B%=^W^[(_V?YE^'-EH-5P'AE])=3VGHO$'''ZHI-_SC&K?4O,+<2%,D(J00 M*A6J/HR[M4[Q:.QHD1DP'R=Y_?R3YMUN_6P-\;IY8>'(Q\:3%JUXM7IF7FTX MRPB+IP<&I.')(U=LY_Z&=N/^I=_Y+G_JGF)_)0_G.=_+)_F_:GGDC\^)O,WF M>RT1M%^JB[+@S^J6X\$+=.`\,IS]GC'`RXKIOTW:9R3$>&K>NYK7;,)\Z>5) M9)'U2P3DQ_WJ@7J:?MJ/'^;.8[9[+))RXQ_PR'^_>@[*[1$1X8=7U,<+N?]U_OE!Q3Z1W^G,+5:_-G^ MN7I_FCZ7+T^AQ8=XC?\`G-:)H=YK%T(H`5A4_OK@CX5'MXM[8-%HIZB?#'Z? MXI_S4ZS60P1N7U?PQ>K6%C;V-G%:6Z\8HE"J/'W/N<[W3X(XH"$?IB\7FRRR M2,I7A M7OP_8G%K]3](?5?3]']GTJ<:?[';*C?5NC71=KS8>C^B[_G7/^7/_`))8^KS7T?T4=#Z/IKZ/'T_V M>%./T4VR)9BNB_`E0N_J/ICZYZ7IUV];CQK_`++:N$7T8RKJJ0^CZ2^CQ]*G MP<*<:>U-L!2*Z+\4H33_`-%?O_T?Z']X?K'H2EQ=6$.'?A1> M19NQ5!Z;^B/2D_1OH>EZC>K]7X M5?2K7O7#ZO-'H\FO^=<_Y<_^26/J\U]']%4M_P!">LOU?ZMZW['I^GR^BF^` M\76U'#TI&Y%L=BK"?-G^#?5?UZ_7_P!KZK]JO^7^S]^@[-_-UZ?[O_;/][_$PB3T>9]'GZ?;G2OX9S$JO;D]%&ZWYIKHW^%_57]*^ MO2OMZ?T\?BS.T?Y6_P!]Q?[QPM5^9K]UP_[YZ=IWZ.^IQ_4/3^JT^#TJ -----END PRIVACY-ENHANCED MESSAGE-----