REGISTRATION RIGHTS AND LOCK-UP AGREEMENT
This Registration Rights Agreement is entered into and effective as of
the 15 day of September, 2003, between MICROFIELD GROUP, INC., an Oregon
corporation (the "Company"), XXXX X. XXXXXXXXX, TSI TELECOMMUNICATION SERVICES,
INC., a Delaware corporation, XXXXXXXXXXX GROUP LLC, an Oregon limited liability
company, XXXXXX X. JESENIK, JMW CAPITAL PARTNERS, INC., an Oregon corporation,
XXXXXX X. XXXXXX, R. XXXXXXX XXXXXX, and XXXXXXX XXXXXXXX (individually,
"Holder," collectively, the "Holders").
RECITALS:
A. The Holders collectively own the following shares of common
stock of the Company (the "Stock"):
HOLDER SHARES OF COMMON STOCK
------ ----------------------
Xxxx X. Xxxxxxxxx 3,404,958
TSI Telecommunication Services Inc. 788,185
Xxxxxxxxxxx Group LLC 4,193,142
Xxxxxx X. Jesenik 38,017
MCG Holdings 545,455
Xxxxxx X. Xxxxxx 1,072,859
R. Xxxxxxx Xxxxxx 646,854
Xxxxxxx Xxxxxxxx 139,602
For purposes of this Agreement, Stock shall also include all shares of the
Company's common stock now owned or hereafter acquired by reason of purchase,
exercise of warrants, conversion, division or otherwise, by the Holders.
B. The Company and Holders desire to provide for registration
rights and lock-up provisions set forth herein.
AGREEMENT:
NOW, THEREFORE, the parties agree as follows:
1. Company Registration.
1.1 REGISTRABLE SECURITIES. For purposes of this
Agreement, "Registrable Securities" means the Stock or other securities issued
or issuable with respect to the Stock upon any stock split, stock dividend,
recapitalization or similar event; provided, however, that shares of Stock or
other securities shall only be treated as Registrable Securities if and so long
as they have not been (A) sold or otherwise transferred to or through a broker
or dealer or underwriter in a public distribution or a public securities
transaction, or (B) sold or otherwise transferred in a transaction exempt from
the registration and prospectus delivery requirements of the Securities Act
under Section 4(1) thereof so that all transfer restrictions and restrictive
legends with respect thereto are removed upon the consummation of such sale.
Registerable Securities sold or otherwise transferred without strict compliance
of the terms of this Agreement or otherwise in breach of this Agreement shall
not have any benefits under this Agreement unless and until such terms have been
strictly complied with or such breach has been cured.
1 - REGISTRATION RIGHTS AGREEMENT
PDX/112816/141153/DLH/1395131.1
1.2 PIGGYBACK REGISTRATION RIGHTS. If at any time or from
time to time after expiration of the period set forth in Section 10.1 and prior
to the fifth anniversary of this Agreement, the Company shall decide to register
any of its securities, either for its own account or the account of a security
holder or holders, other than (x) a registration relating solely to employee
benefit plans, or (y) a registration relating solely to a Commission Rule 145
transaction, the Company will:
(a) promptly give to the Holder written notice
thereof, and
(b) include in such registration (and any
related qualification under blue sky laws or other compliance), and in any
underwriting involved therein, all the Registrable Securities specified in a
written request or requests made within fifteen (15) days after receipt of such
written notice from the Company by the Holder.
If a Holder decides not to include all of its Registrable Securities in any
registration statement thereafter filed by the Company, such Holder shall
nevertheless continue to have the right to include any Registrable Securities in
any subsequent registration statement or registration statements as may be filed
by the Company with respect to offerings of its securities, all upon the terms
and conditions set forth herein.
1.3 UNDERWRITING. If the registration of which the
Company gives notice is for a registered public offering involving an
underwriting, the Company shall so advise the Holder as a part of the written
notice given pursuant to Section 1.2(a). In such event, the right of the Holder
to registration pursuant to Section 1.2 shall be conditioned upon such Holder's
participation in such underwriting and the inclusion of Registrable Securities
in the underwriting, to the extent requested, to the extent provided herein. The
Holder shall (together with the Company and the other holders distributing their
securities through such underwriting (the "Other Participating Holders")) enter
into an underwriting agreement in customary form with the managing underwriter
selected for such underwriting by the Company. Notwithstanding any other
provision of this Section 1, if the managing underwriter determines that
marketing factors require a limitation of the number of shares to be
underwritten, the managing underwriter may limit the number of Registrable
Securities to be included in the registration and underwriting, on a pro rata
basis based on the total number of securities (including, without limitation,
Registrable Securities) requested to be registered pursuant to registration
rights granted to the Holder and the Other Participating Holders by the Company.
To facilitate the allocation of shares in accordance with the above provisions,
the Company or the underwriters may round the number of shares allocated to the
Holder or the Other Participating Holders to the nearest one hundred (100)
shares. If the Holder or any Other Participating Holder disapproves of the terms
of any such underwriting, it, he or she may elect to withdraw therefrom by
written notice to the Company and the managing underwriter. Any securities
excluded or withdrawn from such underwriting shall be withdrawn from such
registration, and shall not be transferred in a public distribution prior to one
hundred and eighty (180) days after the effective date of the registration
statement relating thereto.
1.4 RIGHT TO TERMINATE REGISTRATION. The Company shall
have the right to terminate or withdraw any registration initiated by it under
this Section 1 prior to the effectiveness of such registration, whether or not
any Holder has elected to include securities in such registration.
2 - REGISTRATION RIGHTS AGREEMENT
PDX/112816/141153/DLH/1395131.1
2. Registration.
2.1 RIGHT TO DEMAND REGISTRATION. Following the second
anniversary of the date of this Agreement and prior to the fifth anniversary of
the date of this Agreement and subject to the restrictions contained in Section
2.2, if any Holder of Registrable Securities requests that the Company file a
registration statement for a public offering of Registrable Securities, the
reasonably anticipated aggregate price to the public of which, net of
underwriting discounts and commissions, would exceed $500,000, and the Company
is a registrant entitled to use Form S-3 to register the Registrable Securities
for such an offering, the Company shall use its best efforts to cause such
Registrable Securities to be registered for the offering on such form.
2.2 LIMITATION OF REGISTRATION. A Holder shall only have
the rights set forth in Section 2.1 if the Holder previously elected to register
all of such Holder's Registrable Securities as provided in Section 1.2(b), less
than 50% of Holder's Registrable Securities were registered as required by the
managing underwriter, and the Holder has not elected to exercise Holder's
registration rights under this Section 2 more than once previously.
2.3 NOTICE. The Company will (i) promptly give written
notice of the proposed registration to all other Holders and (ii) as soon as
practicable use its best efforts to effect such registration (including, without
limitation, the execution of an undertaking to file post-effective amendments,
appropriate qualification under applicable blue sky or other state securities
laws and appropriate compliance with applicable regulations issued under the
Securities Act and any other governmental requirements or regulations) as may be
so requested and as would permit or facilitate the sale and distribution of all
or such portion of such Registrable Securities as are specified in such request,
together with all or such portion of the Registrable Securities of any Holder or
Holders joining in such request as are specified in a written request received
by the Company within fifteen (15) days after receipt of such written notice
from the Company. The substantive provisions of Section 1 shall be applicable to
each registration initiated under this Section 2.
2.4 EXCEPTIONS. Notwithstanding the foregoing, the
Company shall not be obligated to take any action pursuant to this Section 2:
(i) in any particular jurisdiction in which the Company would be required to
execute a general consent to service of process in effecting such registration,
qualification or compliance, unless the Company is already subject to service in
such jurisdiction and except as may be required by the Securities Act; (ii)
during the period starting with the date sixty (60) days prior to the Company's
estimated date of filing of, and ending on the date six (6) months immediately
following the effective date of, a registration statement (other than with
respect to a registration statement relating to a Rule 145 transaction, an
offering solely to employees or any other registration which is not appropriate
for the registration of Registrable Securities), provided that the Company is
actively employing in good faith all reasonable efforts to cause such
registration statement to become effective; (iii) in any calendar year after the
Company has effected two (2) such registrations pursuant to this Section 2 in
such calendar year and each such registration has been declared or ordered
effective and has remained effective for the period specified in Section 4 of
this Agreement; and (iv) if the Company shall furnish to such Holder a
certificate signed by the President of the Company stating that, in the good
faith judgment of the Board of Directors, it would be seriously detrimental to
the Company or its stockholders for registration statements to be filed in the
near
3 - REGISTRATION RIGHTS AGREEMENT
PDX/112816/141153/DLH/1395131.1
future, then the Company's obligation to use its best efforts to file a
registration statement shall be deferred for a period not to exceed one hundred
twenty (120) days from the receipt of the request to file such registration by
such Holder or Holders; provided, however, that the Company may not utilize this
right more than once in any twelve (12) month period.
3. Expenses of Registration.
3.1 REGISTRATION EXPENSES. "Registration Expenses" shall
mean all expenses incurred by the Company in complying with Sections 1 and 2
hereof, including, without limitation, all registration, qualification and
filing fees, printing expenses, escrow fees, fees and disbursements of counsel
for the Company, blue sky fees and expenses, and the expense of any special
audits incident to or required by any such registration (but excluding the
compensation of regular employees of the Company which shall be paid in any
event by the Company).
3.2 COMPANY'S OBLIGATION TO PAY. All Registration
Expenses incurred in connection with any registration pursuant to Section 1 and
up to one registration in any calendar year after the date hereof under Section
2, and, at the Holder's option (i) the reasonable cost of one special legal
counsel to all holders of securities of the Company exercising registration
rights in any such registration or (ii) the reasonable cost of one special legal
counsel to the Holder in any such registration, shall be borne by the Company;
provided, however, that the attorney fees related to such special legal counsel
referred to in clause (ii) borne by the Company shall in no event exceed $5,000
in any calendar year. All Registration Expenses incurred in connection with any
registration pursuant to Section 2 of this Agreement above and beyond one
registration in any calendar year after the date hereof, and the cost of any
counsel for the Holder in any such registration, shall be borne by the Holder.
If a registration proceeding is begun upon the request of the Holder pursuant to
Section 1.3 (if the first request under Section 2 in any calendar year), but
such request is subsequently withdrawn, then the Holder may either: (i) bear all
Registration Expenses of such proceeding, in which case the Company shall be
deemed not to have effected a registration pursuant to Section 2 of this
Agreement, or (ii) require the Company to bear all Registration Expenses of such
proceeding, in which case the Company shall be deemed to have effected a
registration pursuant to Section 2 of this Agreement. The preceding sentence
shall not apply if, at the time of such withdrawal, the Holder has learned of a
material adverse change in the condition, business or prospects of the Company
from that known to the holder at the time of their request.
3.3 SELLING EXPENSES. All Selling Expenses relating to
securities registered on behalf of the Holder shall be borne by the Holder. For
purposes of this Agreement, "Selling Expenses" shall mean all underwriting
discounts, selling commissions and stock transfer taxes applicable to the
securities registered by the Holders and all fees and disbursements of counsel
for the Holders (as limited by this Section 3).
4. REGISTRATION PROCEDURES. In the case of each registration,
qualification or compliance effected by the Company pursuant to this Section 4,
the Company will:
4.1 REGISTRATION STATEMENT. Prepare and file with the
Commission a registration statement with respect to such securities and use its
best efforts to cause such registration statement to become and remain effective
until the distribution described in the
4 - REGISTRATION RIGHTS AGREEMENT
PDX/112816/141153/DLH/1395131.1
registration statement has been completed, but in no event longer than one
hundred twenty (120) days.
4.2 AMENDMENTS. Prepare and file with the Commission such
amendments and supplements to such registration statement and the prospectus
used in connection with such registration statement as may be necessary to
comply with the provisions of the Securities Act with respect to the disposition
of all securities covered by such registration statement.
4.3 COPIES OF DOCUMENTS. Furnish to the Holders
participating in such registration and to the underwriters, if any, of the
securities being registered such reasonable number of copies of the registration
statement, preliminary prospectus, final prospectus and such other documents as
they may reasonably request in order to facilitate the public offering of such
securities.
4.4 BLUE SKY REGISTRATION. Use its best efforts to
register and qualify the securities covered by such registration statement under
such other securities or Blue Sky laws of such jurisdictions as shall be
reasonably requested by the Holders; provided that the Company shall not be
required in connection therewith or as a condition thereto to qualify to do
business or to file a general consent to service of process in any such states
or jurisdictions, unless the Company is already subject to service in such
jurisdiction and except as may be required by the Securities Act.
4.5 UNDERWRITING AGREEMENT. In the event of any
underwritten public offering, enter into and perform its obligations under an
underwriting agreement, in usual and customary form, with the managing
underwriter of such offering. Each Holder participating in such underwriting
shall also enter into and perform its obligations under such an agreement.
4.6 NOTICE. Notify each Holder of Registrable Securities
covered by such registration statement at any time when a prospectus relating
thereto is required to be delivered under the Act of the happening of any event
as a result of which the prospectus included in such registration statement, as
then in effect, includes an untrue statement of a material fact or omits to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading in the light of the circumstances then
existing.
4.7 SECURITIES EXCHANGE LISTING. Cause all such
Registrable Securities registered pursuant hereunder to be listed on each
securities exchange or other trading market on which similar securities issued
by the Company are then listed.
4.8 TRANSFER AGENT AND REGISTRAR. Provide a transfer
agent and registrar for all Registrable Securities registered pursuant hereunder
and a CUSIP number for all such Registrable Securities, in each case not later
than the effective date of such registration.
4.9 LEGAL OPINION AND COMFORT LETTER. Use its best
efforts to furnish, at the request of any Holder requesting registration of
Registrable Securities pursuant to this Section 4, on the date that such
Registrable Securities are delivered to the underwriters for sale in connection
with a registration pursuant to this Section 4, if such securities are being
sold through underwriters, (i) an opinion, dated such date, of the counsel
representing the Company for the purposes of such registration, in form
substance as is customarily given to underwriters in an
5 - REGISTRATION RIGHTS AGREEMENT
PDX/112816/141153/DLH/1395131.1
underwritten public offering, addressed to the underwriters and to the Holders
requesting registration of Registrable Securities and (ii) a letter dated such
date, from the independent certified public accountants of the Company, in form
and substance as is customarily given by independent certified public
accountants to underwriters in an underwritten public offering, addressed to the
underwriters and to the Holders requesting registration of Registrable
Securities.
5. INDEMNIFICATION.
5.1 INDEMNIFICATION OF HOLDER. The Company will indemnify
and hold harmless each Holder, each of its officers and directors and partners,
and each person controlling such Holder within the meaning of Section 15 of the
Securities Act, with respect to which registration, qualification or compliance
has been effected pursuant to this Agreement, and each underwriter, if any, and
each person who controls any underwriter within the meaning of Section 15 of the
Securities Act, against all actual out-of-pocket expenses, claims, losses,
damages or liabilities (or actions in respect thereof), including any of the
foregoing incurred in any litigation or in settlement of any litigation,
commenced or threatened, arising out of or based on any untrue statement (or
alleged untrue statement) of a material fact contained in any registration
statement, prospectus, preliminary prospectus, offering circular or other
document, or any amendment or supplement thereto, incident to any such
registration, qualification or compliance, or based on any omission (or alleged
omission) to state therein a material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances in which
they were made, not misleading, or any violation or any alleged violation by the
Company of the Securities Act or the Exchange Act or any state securities law,
or of any rule or regulation promulgated under any of the foregoing applicable
to the Company in connection with any such registration, qualification or
compliance, and the Company will reimburse each such Holder, each of its
officers and directors, and each person controlling such Holder, each such
underwriter and each person who controls any such underwriter, for any legal and
any other actual out-of-pocket expenses reasonably incurred in connection with
investigating, preparing or defending any such claim, loss, damage, liability or
action, as such expenses are incurred; provided, however, that the indemnity
agreement contained in this Section 5.1 shall not apply to amounts paid in
settlement of any such matter if the settlement is effected without the consent
of the Company, which consent shall not be unreasonably withheld; and provided
further that the Company will not be liable in any such case to the extent that
any such claim, loss, damage, liability or expense arises out of or is based on
any untrue statement or omission or alleged untrue statement or omission, made
in reliance upon and in conformity with written information furnished to the
Company by such Holder, controlling person or underwriter specifically for use
therein.
5.2 INDEMNIFICATION OF THE COMPANY. Each Holder will, if
Registrable Securities held by such Holder are included in the securities as to
which such registration, qualification or compliance is being effected,
indemnify and hold harmless the Company, each of its directors and officers,
each underwriter, if any, of the Company's securities covered by such a
registration statement, each person who controls the Company or such underwriter
within the meaning of Section 15 of the Securities Act, and each other such
Holder, each of its officers and directors and each person controlling such
Holder within the meaning of Section 15 of the Securities Act, against all
actual out-of-pocket expenses, claims, losses, damages and liabilities (or
actions in respect thereof), including any of the foregoing incurred in
settlement of any litigation, commenced or threatened, arising out of or based
on any untrue statement (or alleged
6 - REGISTRATION RIGHTS AGREEMENT
PDX/112816/141153/DLH/1395131.1
untrue statement) of a material fact contained in any such registration
statement, prospectus, offering circular or other document, or any amendment or
supplement thereto, incident to any such registration, qualification or
compliance, or based on any omission (or alleged omission) to state therein a
material fact required to be stated therein, in light of the circumstances in
which they were made, or necessary to make the statements therein not
misleading, and will reimburse the Company, such Holders, such directors,
officers, persons, underwriters or control persons for any legal and any other
actual out-of-pocket expenses reasonably incurred in connection with
investigating or defending any such claim, loss, damage, liability or action, as
such expenses are incurred, in each case to the extent, but only to the extent,
that such untrue statement (or alleged untrue statement) or omission (or alleged
omission) is made in such registration statement, prospectus, offering circular
or other document in reliance upon and in conformity with written information
furnished to the Company by such Holder specifically for use therein; provided,
however, that the indemnity agreement contained in this Section 5.2 shall not
apply to amounts paid in settlement of any matter if the settlement is effected
without the consent of the Holder, which consent shall not be unreasonably
withheld; and provided, further, that the maximum liability of each selling
Holder under this Section 5.2 shall be equal to the net proceeds to such selling
Holder as a result of such registration and offering.
5.3 INDEMNIFICATION NOTICE. Each party entitled to
indemnification under this Section 5 (the "Indemnified Party") shall give notice
to the party required to provide indemnification (the "Indemnifying Party")
promptly after such Indemnified Party has actual knowledge of any claim as to
which indemnity may be sought, and shall permit the Indemnifying Party to assume
the defense of any such claim or any litigation resulting therefrom, provided
that counsel for the Indemnifying Party, who shall conduct the defense of such
claim or litigation, shall be approved by the Indemnified Party (whose approval
shall not unreasonably be withheld), and the Indemnified Party may participate
in such defense at such party's expense; provided, however, that an Indemnified
Party (together with all other Indemnified Parties which may be represented
without conflict by one counsel) shall have the right to retain one separate
counsel, with the reasonable fees and expenses of such counsel to be paid by the
Indemnifying Party, if representation of such Indemnified Party by the counsel
retained by the Indemnifying Party would be inappropriate due to actual or
potential differing interests between such Indemnified Party and any other party
represented by such counsel in such proceeding. The failure of any Indemnified
Party to give notice as provided herein shall not relieve the Indemnifying Party
of its obligations under this Section 5 unless the failure to give such notice
is materially prejudicial to an Indemnifying Party's ability to defend such
action. No Indemnifying Party, in the defense of any such claim or litigation,
shall, except with the consent of each Indemnified Party (not to be unreasonably
withheld), consent to entry of any judgment or enter into any settlement which
does not include as an unconditional term thereof the giving by the claimant or
plaintiff to such Indemnified Party of a release from all liability in respect
to such claim or litigation.
5.4 CONTRIBUTION. If the indemnification provided for in
this Section 5 is held by a court of competent jurisdiction to be unavailable to
an indemnified party with respect to any loss, liability, claim, damage, or
expense referred to therein, then the indemnifying party, in lieu of
indemnifying such indemnified party hereunder, shall contribute to the amount
paid of payable by such indemnified party as a result of such loss, liability,
claim, damage, or expense in such proportion as is appropriate to reflect the
relative fault of the indemnifying party on the one hand and of the indemnified
party on the other in connection with the statements or omissions
7 - REGISTRATION RIGHTS AGREEMENT
PDX/112816/141153/DLH/1395131.1
that resulted in such loss, liability, claim, damage, or expense as well as any
other relevant equitable considerations; provided, however, that, in no event
shall any contribution by a Holder under this Section 5.4 exceed the net
proceeds from the offering received by such Holder, except in the case of
willful fraud by such Holder. The relative fault of the indemnifying party and
of the indemnified party shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or the
omission to state a material fact relates to information supplied by the
indemnifying party or by the indemnified party and the parties' relative intent,
knowledge, access to information, and opportunity to correct or prevent such
statement or omission.
5.5 UNDERWRITING AGREEMENT. Notwithstanding the
foregoing, to the extent that the provisions on indemnification and contribution
contained in the underwriting agreement entered into in connection with the
underwritten public offering are in conflict with the foregoing provisions, the
provisions in the underwriting agreement shall control.
5.6 SURVIVAL. The obligations of the Company and Holders
under this Section 5 shall survive the completion of any offering of Registrable
Securities in a registration statement under this Section 5, and otherwise.
6. INFORMATION BY HOLDER. The Holder or Holders of Registrable
Securities included in any registration shall furnish to the Company such
information regarding such Holder or Holders, the Registrable Securities held by
them and the distribution proposed by such Holder or Holders as the Company may
request in writing and as shall be required in connection with any registration,
qualification or compliance referred to in this Agreement.
7. RULE 144 REPORTING. With a view to making available the
benefits of certain rules and regulations of the Commission which may at any
time permit the sale of the Stock to the public without registration, the
Company agrees to use its best efforts to: (a) make and keep public information
available, as those terms are understood and defined in Rule 144 under the
Securities Act, at all times after the effective date that the Company becomes
subject to the reporting requirements of the Exchange Act; (b) file with the
Commission in a timely manner all reports and other documents required of the
Company under the Exchange Act (at any time after it has become subject to such
reporting requirements); and (c) so long as the Holder owns any Registrable
Securities, to furnish to the Holder forthwith upon request a written statement
by the Company as to its compliance with the reporting requirements of Rule 144,
a copy of the most recent annual or quarterly report of the Company, and such
other reports and documents of the Company and other information in the
possession of or reasonably obtainable by the Company as the Holder may
reasonably request in availing itself of any rule or regulation of the
Commission allowing the Holder to sell any such securities without registration.
8. TRANSFER OF REGISTRATION RIGHTS. The rights to cause the
Company to register securities granted to the Holder under Sections 1 and 2 may
be assigned to a transferee or assignee in connection with any transfer or
assignment of Registrable Securities by the Holder (together with any
affiliate); provided, however, that (a) such transfer shall be effected in
accordance with applicable securities laws, (b) notice of such assignment is
given to the Company, (c) such transferee or assignee (i) is a wholly-owned
subsidiary or limited liability company or constituent partner (including
limited partners, retired partners, members of a limited
8 - REGISTRATION RIGHTS AGREEMENT
PDX/112816/141153/DLH/1395131.1
liability company, trustee of a trust established for the benefit of the
Holder's family, spouses and ancestors, lineal descendants and siblings of such
partners or spouses who acquire Registrable Securities by gift, will or
intestate succession) of the Holder, or (ii) acquires from the Holder at least
10% of the Holder's Shares and (d) agrees to be bound by the terms and
conditions of this Agreement.
9. TERMINATION OF RIGHTS. The rights of any particular Holder to
cause the Company to register securities under Sections 1 and 2 shall terminate
with respect to such Holder on the earlier of the fifth anniversary of the date
of this Agreement, or at such time as Rule 144 or another similar exemption
under the Securities Act of 1933 is available for the sale of all such Holders
securities during a three (3)-month period without registration.
10. LOCK-UP AGREEMENT.
10.1 LOCK-UP. The Holders each agree that for a period of
twelve (12) months from the date of this Agreement, they will not sell, pledge,
hypothecate, assign, grant any option for the sale of, whether or not for
consideration, directly or indirectly, the Registrable Securities; provided
however that Xxxxxx X. Xxxxxx has pledged 250,000 shares of Microfield Common
Stock to KeyBank N.A. as security for a loan and these shares to the extent that
they are pledged are not subject to the Lock-up provisions of this Section 10,
nor do they have the piggy back or registration rights provided in Sections 1
and 2. Once these shares are released as collateral, they will become subject to
all the rights, obligations and restrictions set forth in this Agreement.
10.2 AUTHORIZED TRANSFER. The Registrable Securities may
be transferred by will, the laws of descent and distribution, the operation of
law, or by order of any court of competent jurisdiction and proper venue.
10.3 LEGEND. A notice shall be placed on the face of each
stock certificate of the Registrable Securities stating that the Registrable
Securities are restricted in accordance with the conditions set forth on the
reverse side of the certificate and a typed legend shall provide as follows:
"The shares represented by this certificate are subject to certain sale and
transfer restrictions until September 15, 2005, by an agreement between the
security holder and issuer, which is on file with the issuer and the stock
transfer agent from which a copy is available upon request and without charge."
11. MISCELLANEOUS.
11.1 AMENDMENTS AND WAIVERS. Except as otherwise provided
herein, the provisions of this Agreement may be amended or waived only upon the
prior written consent of the Company and the holders of a majority of the
Registrable Securities.
11.2 ENTIRE AGREEMENT. This Agreement is the entire
agreement is the entire agreement and understanding of the parties hereto as to
the subject matter contained herein. There are no restrictions, promises,
warranties, covenants, or undertakings other than those expressly set forth or
referred to in this Agreement. This Agreement supersedes all prior agreements
and undertakings, whether written or oral, among the parties with respect to the
subject matter hereof.
9 - REGISTRATION RIGHTS AGREEMENT
PDX/112816/141153/DLH/1395131.1
11.3 SUCCESSORS AND ASSIGNS. All covenants and agreements
in this Agreement by or on behalf of any of the parties hereto shall bind and
inure to the benefit of the respective successors and assigns of the parties
hereto whether so expressed or not. In addition, whether or not any express
assignment has been made, the provisions of this Agreement which are for the
benefit of purchasers or holders of Registrable Securities are also for the
benefit of, and enforceable by, any subsequent holder of such Registrable
Securities.
11.4 SEVERABILITY. Whenever possible, each provision of
this Agreement shall be interpreted in such manner as to be effective and valid
under applicable law, but if any provision of this Agreement is held to be
prohibited by or invalid under applicable law, such provision shall be
ineffective only to the extent of such prohibition or invalidity, without
invalidating the remainder of this Agreement.
11.5 COUNTERPARTS. This Agreement may be executed
simultaneously in two or more counterparts (including by means of telecopied
signature pages), any one of which need not contain the signatures of more than
one party, but all such counterparts taken together shall constitute one and the
same Agreement.
11.6 GOVERNING LAW. This Agreement shall be governed by,
and construed in accordance with, the laws of the state of Oregon without
reference to the choice of law doctrine. Venue shall be in Multnomah County.
11.7 NOTICES. All notices, demands or other communications
to be given or delivered under or by reason of the provisions of this Agreement
shall be in writing and shall be deemed to have been given when delivered
personally to the recipient, one (1) business day after sent to the recipient by
reputable overnight courier service (charges prepaid) or two (2) business days
after mailed to the recipient by certified or registered mail, return receipt
requested and postage prepaid. Such notices, demands and other communications
shall be sent to each Holder and to the Company at the addresses indicated
below:
If to MICG:
----------
Microfield Group, Inc.
Attn: Xxxxxx X. Xxxxxx
0000 XX Xxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxx, XX 00000
With a copy to:
Xxxx Xxxxxx Xxxxx Xxxxxxx & Tongue LLP
Attn: Xxxxxxxx X. Xxxxxxx
000 XX Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxx, XX 00000
If to Xxxxxxxxx and TSI:
-----------------------
Xxxx X. Xxxxxxxxx
0000 XX Xxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxx, XX 00000
10 - REGISTRATION RIGHTS AGREEMENT
PDX/112816/141153/DLH/1395131.1
With a copy to:
White & Xxx LLP
Attn: Xxx X. Xxxxxxx
000 XX Xxxxxxxx, Xxxxx 0000
Xxxxxxxx, XX 00000
If to Xxxxxxxxxxx Group LLC:
---------------------------
Xxxxxxxxxxx Group LLC
Attn: Xxxxxx Xxxxxxx
Suite 300
0000 XX Xxxxxxx Xxxxxx
Xxxxxxxx XX 00000
If to Xxxxxx X. Jesenik or JMW Capital Partners, Inc.:
-----------------------------------------------------
Xxxxxx X. Jesenik
Suite 300
0000 XX Xxxxxxx Xxxxxx
Xxxxxxxx XX 00000
If to Xxxxxx X. Xxxxxx:
----------------------
Xxxxxx X. Xxxxxx
0000 XX Xxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxx, XX 00000
If to R. Xxxxxxx Xxxxxx:
-----------------------
R. Xxxxxxx Xxxxxx
0000 XX Xxxx Xxxx
Xxxxxxxx, XX 00000
If to Xxxxxxx Xxxxxxxx:
----------------------
Xxxxxxx Xxxxxxxx
0000 XX Xxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxx, XX 00000
or to such other address or to the attention of such other person as the
recipient party has specified by prior written notice to the sending party given
in accordance with this section.
11 - REGISTRATION RIGHTS AGREEMENT
PDX/112816/141153/DLH/1395131.1
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
MICROFIELD GROUP, INC. XXXXXXXXXXX GROUP, LLC
By: JMW CAPITAL PARTNERS, INC.,
Manager
By: /s/ XXXXXX X. XXXXXX By: /s/ XXXXXX X. JESENIK
-------------------------------- ----------------------------------
Xxxxxx X. Xxxxxx, President Xxxxxx X. Jesenik, CEO
JMW CAPITAL PARTNERS, INC., TSI TELECOMMUNICATION SERVICS,
INC.
By: /s/ XXXXXX X. JESENIK By:
-------------------------------- ----------------------------------
Xxxxxx X. Jesenik, CEO Its:
---------------------------------
/s/ XXXX X. XXXXXXXXX /s/ R. XXXXXXX XXXXXX
----------------------------------- ------------------------------------
Xxxx X. Xxxxxxxxx R. Xxxxxxx Xxxxxx
/s/ XXXXXX X. JESENIK /s/ XXXXXX X. XXXXXX
----------------------------------- ------------------------------------
Xxxxxx X. Jesenik Xxxxxx X. Xxxxxx
/s/ XXXXXXX XXXXXXXX
-----------------------------------
Xxxxxxx Xxxxxxxx
12 - REGISTRATION RIGHTS AGREEMENT
PDX/112816/141153/DLH/1395131.1
