REGISTRATION RIGHTS AGREEMENT by and between EMCORE CORPORATION and WORLDWATER AND POWER CORP. Dated as of November 29, 2006
EXHIBIT
10.2
by
and between
EMCORE
CORPORATION
and
WORLDWATER
AND POWER CORP.
___________________
Dated
as
of November 29, 2006
Table
of
Contents
1. Certain
Definitions.
2. Shelf
Registration Statements.
3. Additional
Demand Registrations.
4. Piggyback
Registrations.
5. Other
Registrations
6. Selection
of Underwriters.
7. Holdback
Agreements.
8. Lock
-
Up
9. Procedures.
10. Registration
Expenses.
11. Indemnification.
12. Liquidated
Damages.
13. Rule
144.
14. Transfer
of Registration Rights.
15. Conversion
or Exchange of Other Securities.
16. Miscellaneous.
REGISTRATION
RIGHTS AGREEMENT dated as of November
29, 2006,
by and
between WorldWater
and Power Corp.,
a
Delaware
corporation (the "Company"), and EMCORE
Corporation,
a New
Jersey corporation (the
"Investor").
In
consideration of the mutual covenants and agreements herein contained and other
good and valid consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties to this Agreement hereby agree as
follows:
1. Certain
Definitions.
In
addition to the terms defined elsewhere in this Agreement, the following terms
shall have the following meanings:
"Affiliate"
of any
Person means any other Person that directly, or indirectly through one or more
intermediaries, controls, or is controlled by, or is under common control with,
such Person. The term "control" (including the terms "controlling," "controlled
by" and "under common control with") as used with respect to any Person means
the possession, direct or indirect, of the power to direct or cause the
direction of the management and policies of such Person, whether through the
ownership of voting securities, by contract or otherwise.
"Agreement"
means
this Registration Rights Agreement, including all amendments, modifications
and
supplements and any exhibits or schedules to any of the foregoing, and shall
refer to this Registration Rights Agreement as the same may be in effect at
the
time such reference becomes operative.
"Blackout
Period"
has the
meaning set forth in Section 9(e) hereof.
"Business
Day"
means
any day, except a Saturday, Sunday or legal holiday on which banking
institutions in The City of New York are authorized or obligated by law or
executive order to close.
"Certificate
of Designation"
means
the Certificate of Amendment to Designate the Preferred Stock (as defined
below), filed with the Secretary of State of Delaware.
"Common
Stock"
means
common stock, par value $0.001 per share, in the Company.
"Company"
has the
meaning set forth in the introductory paragraph and includes any other person
referred to in the second sentence of Section 16(c) hereof.
"Damages
Payment Date"
means
the first Business Day of each month.
"Delay
Period"
has the
meaning set forth in Section 3(d) hereof.
"Demand
Registration"
has the
meaning set forth in Section 3(a) hereof.
"Demand
Registration Statement"
has the
meaning set forth in Section 3(a) hereof.
"Demand
Request"
has the
meaning set forth in Section 3(a) hereof.
"Exchange
Act"
means
the Securities Exchange Act of 1934, as amended.
"Full
Cooperation"
means,
in connection with any underwritten offering, where, in addition to the
cooperation otherwise required by this Agreement, (a) members of senior
management of the Company (including the chairman of the Company's board of
directors, the chief executive officer and the chief financial officer) fully
cooperate with the underwriter(s) in connection therewith and make themselves
available to participate in "road-show" and other customary marketing activities
in such locations (domestic and foreign) as recommended by the underwriter(s)
(including one-on-one meetings with prospective purchasers of the Registrable
Securities) and (b) the Company prepares preliminary and final prospectuses
(preliminary and final prospectus supplements in the case of an offering
pursuant to the Shelf Registration Statement) for use in connection therewith
containing such additional information as reasonably requested by the
underwriter(s) (in addition to the minimum amount of information required by
law, rule or regulation).
"Fully
Marketed Underwritten Offering"
means
an underwritten offering in which there is Full Cooperation.
"Governmental
Entity"
means
any national, federal, state, municipal, local, territorial, foreign or other
government or any department, commission, board, bureau, agency, regulatory
authority or instrumentality thereof, or any court, judicial, administrative
or
arbitral body or public or private tribunal.
"Investment
Agreement"
means
the Investment Agreement, dated November 29, 2006, between the Company and
the
Investor.
"Investor"
has the
meaning set forth in the introductory paragraph.
"Liquidated
Damages"
has the
meaning set forth in Section 12 hereof.
"Nasdaq"
means
the Nasdaq quotation system, or any successor reporting system.
"Person"
means
any individual, sole proprietorship, partnership, limited liability company,
joint venture, trust, unincorporated organization, association, corporation,
institution, public benefit corporation, Governmental Entity or any other
entity.
"Piggyback
Registration"
has the
meaning set forth in Section 4(a) hereof.
"Piggyback
Registration Statement"
has the
meaning set forth in Section 4(a) hereof.
"Preferred
Stock"
means
the Series D Preferred Stock issued to the Investor pursuant to the Investment
Agreement.
"Prospectus"
means
the prospectus or prospectuses forming a part of, or deemed to form a part
of,
or included in, or deemed included in, any Registration Statement, as amended
or
supplemented by any prospectus supplement with respect to the terms of the
offering of any portion of the Registrable Securities covered by such
Registration Statement and by all other amendments and supplements to the
prospectus, including post-effective amendments and all material incorporated
by
reference in such prospectus or prospectuses.
"Registrable
Securities"
means
(i) any shares of Common Stock owned by the Investor, (ii) the Warrant Shares,
(iii) any Preferred Stock owned by the Investor, and (iv) any securities issued
or issuable in respect of Common Stock or other capital stock referred to in
clauses (i), (ii) and (iii) above by way of conversion, exercise or exchange,
or
upon any stock dividend or stock split or in connection with a combination
of
shares, reclassification, recapitalization, merger, consolidation or other
reorganization or otherwise.
"Registration
Default"
has the
meaning set forth in Section 12 hereof.
"Registration
Expenses"
has
the
meaning set forth in Section 10(a) hereof.
"Registration
Statement"
means
any registration statement of the Company that covers any of the Registrable
Securities pursuant to the provisions of this Agreement, including the
Prospectus, amendments and supplements to such Registration Statement, including
post-effective amendments, all exhibits and all materials incorporated by
reference in such Registration Statement.
"Rule
144"
means
Rule 144 promulgated
by the SEC pursuant to the
Securities Act, as such rule may be amended from time to time, or any similar
rule or regulation hereafter adopted by the SEC as
a
replacement thereto having substantially the same effect as such
rule.
"Rule
415"
means
Rule 415 promulgated by the SEC pursuant to the Securities Act, as such rule
may
be amended from time to time, or any similar rule or regulation hereafter
adopted by the SEC as a replacement thereto having substantially the same effect
as such rule.
"SEC"
means
the Securities and Exchange Commission.
"Securities
Act"
means
the Securities Act of 1933, as amended.
"Shelf
Registration Statement"
has the
meaning set forth in Section 2(a) hereof.
"Suspension
Notice"
has the
meaning set forth in Section 9(e) hereof.
"Stock
Repurchase"
has the
meaning set forth in Section 4(b) hereof.
"transferee"
has the
meaning set forth in Section 14(a) hereof.
"underwriter"
means a
securities dealer who purchases any Registrable Securities as principal and
not
as part of such dealer's market-making activities.
"underwritten
registration or underwritten offering"
means
an offering in which securities of the Company are sold to one or more
underwriters (as defined in Section 2(a)(11) of the Securities Act) for resale
to the public.
"Warrant
Agreement"
means
the Warrant Agreement dated November 29, 2006, 2006, between the Company and
the
Investor.
"Warrant
Shares"
means
the shares of the Company's Series D preferred stock issued or issuable upon
exercise of the Warrants.
"Warrants"
means
the warrants to acquire shares of the Company's Series D preferred stock issued
pursuant to the Warrant Agreement.
"Withdrawn
Demand Registration"
has the
meaning set forth in Section 3(e) hereof.
2. Shelf
Registration Statements.
(a) Right
to Request Registration
(a) Right
to Request Registration
(i)
No
later than forty five (45) days after the date the Company receives a notice
from the Investor (the "Investor Notice"), the Company shall file with the
SEC a
registration statement on such form under the Securities Act then available
to
the Company providing for the resale on a continuous basis, pursuant to Rule
415, by the Investor of such number of shares of Registrable Securities
requested by the Investor to be registered thereby (including the Prospectus,
amendments and supplements to the shelf registration statement or Prospectus,
including pre- and post-effective amendments, all exhibits thereto and all
material incorporated by reference or deemed to be incorporated by reference,
if
any, in such shelf registration statement, the "Shelf Registration
Statement"). The Company agrees that if no other form is available to it
at the time it receives the Investor Notice, it shall file with the SEC a
registration statement on Form S-1 in order to comply with its obligations
hereunder.
(ii) The
Company shall use its best efforts to cause the Shelf Registration Statement
to
be declared effective by the SEC as soon as practicable but no later than one
hundred and twenty (120) days of such filing.
(iii) The
Company shall maintain the effectiveness of the Shelf Registration Statement
for
a period of at least five years in the aggregate plus the duration of any
Blackout Period.
(iv) If
the
Shelf Registration Statement ceases to be effective for any reason as result
of
the issuance of a stop order by the SEC at any time, the Company shall use
its
best efforts to obtain the prompt withdrawal of any such order, and in any
event
shall within thirty (30) days of such cessation of effectiveness amend the
Shelf
Registration Statement in a manner expected to obtain the withdrawal of said
order.
(v) The
Company shall supplement and amend the Shelf Registration Statement if required
by the applicable rules, regulations or instructions, if required by the
Securities Act or if reasonably requested by the Investor.
(b) Number
of Fully Marketed Underwritten Offerings.
The
Investor shall be entitled to request an aggregate of 1 Fully Marketed
Underwritten Offering pursuant to the Shelf Registration Statement. If the
Investor requests a Fully Marketed Underwritten Offering, the Company shall
cause there to occur Full Cooperation in
connection therewith. An
underwritten offering shall not count as one of the permitted Fully Marketed
Underwritten Offerings if there is not Full Cooperation in connection therewith
or the Investor is not able to sell at least 50% of the Registrable Securities
desired to be sold in such Fully Marketed Underwritten Offering. Except as
provided in this Section 2(b), there shall be no limitation on the number of
takedowns off the Shelf Registration Statement.
3. Additional
Demand Registrations.
(a) Right
to Request Registration
Any
time
after the date hereof, the Investor may request registration for resale under
the Securities Act of all or part of the Registrable Securities (the
"Demand
Request")
pursuant to a Registration Statement separate from the Shelf Registration
Statement (a "Demand
Registration").
As
promptly as practicable after receipt of the Demand Request, but in any event
within thirty (30) days of receipt of the Demand Requset, the Company shall
file
a registration statement registering for resale such number of shares of
Registrable Securities held by the Investor as requested to be so registered
(including
the Prospectus, amendments and supplements to such registration statement or
Prospectus, including pre- and post-effective amendments, all exhibits thereto
and all material incorporated by reference or deemed to be incorporated by
reference, if any, in such registration statement, a
"Demand
Registration Statement").
In
connection with such Demand Registration, the Company shall cause there to
occur
Full Cooperation.
(b) Number
of Demand Registrations
The
Investor will be entitled to request one (1) Fully Marketed Underwritten
Offering pursuant to Section 3(a). A registration shall not count as the
permitted Demand Registration pursuant to Section 3(a), (i) until the related
Demand Registration Statement has become effective, (ii) if the Investor is
not
able to register and sell all of the Registrable Securities requested to be
included in such registration, or (iii) if there was not Full Cooperation in
connection therewith.
(c) Priority
on Demand Registrations.
If the
Demand Registration pursuant to this Section 3 involves an underwritten offering
and the managing underwriter shall advise the Company that in its opinion the
number of securities requested to be included in such registration exceeds
the
number that can be sold in such offering without having an adverse effect on
such offering, including the price at which such securities can be sold, then
the Company shall include in such registration the maximum number of securities
that such underwriter advises can be so sold without having such effect,
allocated (i) first, to Registrable Securities requested by the Investor to
be
included in such registration and (ii) second, among all securities requested
to
be included in such registration by any other Persons (including securities
to
be sold for the account of the Company) allocated among such Persons in such
manner as they may agree.
(d) Restrictions
on Demand Registrations
The
Company may postpone the filing or the effectiveness of a Demand Registration
Statement if, based on the good faith judgment of the Company's Board of
Directors, such postponement is necessary in order to avoid premature disclosure
of a matter the Board of Directors has determined would not be in the best
interest of the Company to be disclosed at such time; provided,
however,
that
the Investor requesting such Demand Registration Statement shall be entitled,
at
any time after receiving notice of such postponement and before such Demand
Registration Statement becomes effective, to withdraw such request and, if
such
request is withdrawn, such Demand Registration shall not count as the permitted
Demand Registration. The Company shall provide written notice to the Investor
of, and detailed reasons for (x) any postponement of the filing or effectiveness
of a Demand Registration Statement pursuant to this Section 3(d), (y) the
Company's decision to file or seek effectiveness of such Demand Registration
Statement following such postponement and (z) the effectiveness of such Demand
Registration Statement. The Company may defer the filing or effectiveness of
a
particular Demand Registration Statement pursuant to this Section 3(d) only
once
during any twelve (12) month period. Notwithstanding the provisions of this
Section 3(d), the Company may not postpone the filing or effectiveness of a
Demand Registration Statement past the date that is the earliest of (a) the
date
upon which any disclosure of a matter the Board of Directors has determined
would not be in the best interest of the Company to be disclosed is disclosed
to
the public or ceases to be material, (b) thirty (30) days after the date upon
which the Board of Directors has determined such matter should not be disclosed
and (c) such date that, if such postponement continued, would result in there
being more than forty-five (45) days in the aggregate in any twelve (12) month
period during which the filing or effectiveness of one or more Registration
Statements has been so postponed. The period during which filing or
effectiveness is so postponed hereunder is referred to as a "Delay
Period."
(e) Effective
Period of Demand Registrations
After
the
Demand Registration filed pursuant to this Agreement has become effective,
the
Company shall use its best efforts to keep such Demand Registration Statement
effective for a period of at least one hundred and eighty (180) days from the
date on which the SEC declares such Demand Registration Statement effective
plus
the duration of any Delay Period and any Blackout Period, or such shorter period
that shall terminate when all of the Registrable Securities covered by such
Demand Registration Statement has been sold pursuant to such Demand Registration
Statement in accordance with the plan of distribution set forth therein. If
the
Company shall withdraw the Demand Registration Statement pursuant to Section
3(d) hereof (a "Withdrawn
Demand Registration"),
the
Investor shall be entitled to a replacement Demand Registration which (subject
to the provisions of this Section 3) the Company shall use its best efforts
to
keep effective for a period commencing on the effective date of such Demand
Registration and ending on the earlier to occur of the date (i) which is one
hundred and eighty (180) days from the effective date of such Demand
Registration and (ii) on which all of the Registrable Securities covered by
such
Demand Registration has been sold. Such additional Demand Registration otherwise
shall be subject to all of the provisions of this Agreement.
4. Piggyback
Registrations.
(a) Right
to Piggyback
Whenever
the Company proposes to publicly sell or register for sale any of its common
equity securities pursuant to a registration statement (a "Piggyback
Registration Statement")
under
the Securities Act (other than a registration statement on Form S-8 or on Form
S-4 or any similar successor forms thereto), whether for its own account or
for
the account of one or more securityholders of the Company (a "Piggyback
Registration"),
the
Company shall give prompt written notice to the Investor of its intention to
effect such sale or registration and, subject to Sections 4(b)
and 4(c), shall include in such transaction all Registrable Securities with
respect to which the Company has received a written request from the Investor
for inclusion therein within fifteen (15) days after the receipt of the
Company's notice. The Company may postpone or withdraw the filing or the
effectiveness of a Piggyback Registration at any time in its sole discretion,
without prejudice to the Investor's right to immediately request a Demand
Registration or Shelf Registration Statement hereunder. A Piggyback Registration
shall not be considered a Demand Registration for purposes of Section 3 of
this
Agreement or a Shelf Registration Statement for purposes of Section 2 of this
Agreement.
(b) Priority
on Primary Registrations
If
a
Piggyback Registration is initiated as an underwritten primary registration
on
behalf of the Company where the primary use of proceeds does not include the
repurchase, redemption, acquisition or retirement of capital stock of the
Company (a "Stock
Repurchase"),
and
the managing underwriter advises the Company in writing that in its opinion
the
number of securities requested to be included in such registration exceeds
the
number that can be sold in such offering without having an adverse effect on
such offering, including the price at which such securities can be sold, then
the Company shall include in such registration the maximum number of shares
that
such underwriter advises can be so sold without having such effect, allocated
(i) first, to the securities the Company proposes to sell, (ii) second, to
the
Registrable Securities requested to be included therein by the Investor, and
(iii) third, among other securities requested to be included in such
registration by other security holders of the Company on such basis as such
holders may agree among themselves and the Company.
(c) Priority
on Secondary Registrations
If
a
Piggyback Registration is initiated as an underwritten registration on behalf
of
a holder of the Company's securities other than Registrable Securities or on
behalf of the Company where the use of proceeds includes a Stock Repurchase,
and
the managing underwriter advises the Company in writing that in its opinion
the
number of securities requested to be included in such registration exceeds
the
number that can be sold in such offering without having an adverse effect on
such offering, including the price at which such securities can be sold, then
the Company shall include in such registration the maximum number of shares
that
such underwriter advises can be so sold without having such effect, allocated
(i) first, to the securities requested to be included therein by the holder(s)
requesting such registration if and to the extent that such holder(s) were
granted registration rights by the Company prior to the date hereof and (ii)
second, to the Registrable Securities requested to be included in such
registration by the Investor, and (iii) third, the securities the Company
proposes to sell and such other securities requested to be included by other
security holders of the Company, on such basis as such holders may agree among
themselves and the Company.
5. Other
Registrations
The
Company shall not grant to any Person the right, other than as set forth herein
and except to employees of the Company with respect to registrations on Form
S-8
(or any successor forms thereto), to request the Company to register any
securities of the Company except such rights as are not more favorable than
or
inconsistent with the rights granted to the Investor and that do not adversely
affect the priorities set forth herein of the Investor.
6. Selection
of Underwriters.
If
any of
the Registrable Securities covered by a Demand Registration Statement or a
Shelf
Registration Statement is to be sold in an underwritten offering, the Investor
shall have the right to select the managing underwriter(s) to administer the
offering subject to the prior approval of the Company, which approval shall
not
be unreasonably withheld.
7. Holdback
Agreements.
The
Company agrees not to, and shall exercise its best efforts to obtain agreements
(in the underwriters' customary form) from its directors, executive officers
and
beneficial owners of five
(5)%
or more of the Company's outstanding voting stock not to, directly or indirectly
offer, sell, pledge, contract to sell, (including any short sale), grant any
option to purchase or otherwise dispose of any equity securities of the Company
or enter into any hedging transaction relating to any equity securities of
the
Company during the one hundred and eighty (180) days beginning on the effective
date of any underwritten Demand Registration Statement or any underwritten
Piggyback Registration Statement or the pricing date of any underwritten
offering pursuant to any Registration Statement (except as part of such
underwritten offering or pursuant to registrations on Form S-8 or S-4 or any
successor forms thereto) unless the underwriter managing the offering otherwise
agrees to a shorter period.
8. Lock
- Up
If
requested by the Company and a managing underwriter, the Investor shall not
sell
or otherwise transfer or dispose of any Registrable Securities held by it (other
than those included in the registration) during the one hundred eighty (180)
day
period following the effective date of a registration statement of the Company
filed under the Securities Act in connection with the public offering of
securities of the Company; provided,
however,
that
all officers and directors of the Company and all other persons holding two
percent (2%) or more of the Company's outstanding stock enter into similar
agreements. Notwithstanding the foregoing, if the underwriters waive any
restrictions pursuant to this Section 8 as to any officer or director of the
Company, such restrictions shall also be waived as to the Investor and the
Registrable Securities.
9. Procedures.
(a) In
the
event that the Investor requests that any Registrable Securities be sold or
registered pursuant to this Agreement, the Company shall use its best efforts
to
effect the registration and the sale of such Registrable Securities in
accordance with the Investor's intended methods of disposition thereof, and
pursuant thereto the Company shall as expeditiously as possible:
(i) prepare
and file with the SEC a Registration Statement with respect to such Registrable
Securities and use its best efforts to cause such Registration Statement to
become effective as soon as practicable thereafter; in any event not later
than
the time periods stated in Sections 2(a) and 3(a), if and as applicable, and
before filing a Registration Statement or Prospectus or any amendments or
supplements thereto (including any prospectus supplement for a shelf takedown),
furnish to the Investor and the underwriter or underwriters, if any, copies
of
all such documents proposed to be filed, including documents incorporated by
reference in the Prospectus and, if requested by the Investor, the exhibits
incorporated by reference, and the Investor (and the underwriter(s), if any)
shall have the opportunity to review and comment thereon, and the Company will
make such changes and additions thereto as reasonably requested by the Investor
(and the underwriter(s), if any) prior to filing any Registration Statement
or
amendment thereto or any Prospectus or any supplement thereto;
(ii) prepare
and file with the SEC such amendments and supplements to such Registration
Statement and the Prospectus used in connection therewith as may be necessary
to
keep such Registration Statement effective for a period of not less than one
hundred and eighty (180) days, in the case of a Demand Registration Statement
or
an aggregate of five years, in the case of a Shelf Registration Statement (plus,
in each case, the duration of any Delay Period and any Blackout Period), or
such
shorter period as is necessary to complete the distribution of the securities
covered by such Registration Statement and comply with the provisions of the
Securities Act with respect to the disposition of all securities covered by
such
Registration Statement during such period in accordance with the intended
methods of disposition by the Investor thereof set forth in such Registration
Statement and, in the case of the Shelf Registration Statement, prepare such
prospectus supplements containing such disclosures as may be reasonably
requested by the Investor or any underwriter(s) in connection with each shelf
takedown;
(iii) furnish
to the Investor such number of copies of such Registration Statement, each
amendment and supplement thereto, the Prospectus included in such Registration
Statement (including each preliminary Prospectus) and such other documents
as
the Investor and any underwriter(s) may reasonably request in order to
facilitate the disposition of the Registrable Securities, provided,
however,
that
the Company shall have no obligation to furnish copies of a final prospectus
if
the conditions of Rule 172(c) under the Securities Act are satisfied by the
Company;
(iv) use
its
best efforts to register or qualify such Registrable Securities under such
other
securities or blue sky laws of such jurisdictions (domestic or foreign) as
the
Investor and any underwriter(s) reasonably requests and do any and all other
acts and things that may be reasonably necessary or advisable to enable the
Investor and any underwriter(s) to consummate the disposition in such
jurisdictions of the Registrable Securities (provided, that the Company will
not
be required to (1) qualify generally to do business in any jurisdiction where
it
would not otherwise be required to qualify but for this subparagraph (iv),
(2)
subject itself to taxation in any such jurisdiction or (3) consent to general
service of process in any such jurisdiction);
(v) notify
the Investor and any underwriter(s), at any time when a Prospectus relating
thereto is required to be delivered under the Securities Act, of the occurrence
of any event as a result of which the Prospectus included in such Registration
Statement contains an untrue statement of a material fact or omits any material
fact necessary to make the statements therein not misleading, and, at the
request of the Investor or any underwriter(s), the Company shall prepare a
supplement or amendment to such Prospectus so that, as thereafter delivered
to
the purchasers of such Registrable Securities, such Prospectus shall not contain
an untrue statement of a material fact or omit to state any material fact
necessary to make the statements therein not misleading;
(vi) in
the
case of an underwritten offering, (i) enter into such agreements (including
underwriting agreements in customary form), (ii) take all such other actions
as
the Investor or the underwriter(s) reasonably request in order to expedite
or
facilitate the disposition of such Registrable Securities (including, without
limitation, causing senior management and other Company personnel to cooperate
with the Investor and the underwriter(s) in connection with performing due
diligence) and (iii) cause its counsel to issue opinions of counsel in form,
substance and scope as are customary in primary underwritten offerings,
addressed and delivered to the underwriter(s) and the Investor;
(vii) in
connection with each Demand Registration pursuant to Section 3 and each Fully
Marketed Underwritten Offering requested by the Investor under Section 2, cause
there to occur Full Cooperation and, in all other cases, cause members of senior
management of the Company to be available to participate in, and to cooperate
with the underwriter(s) in connection with customary marketing activities
(including select conference calls and one-on-one meetings with prospective
purchasers);
(viii) make
available for inspection by the Investor, any underwriter participating in
any
disposition pursuant to such Registration Statement, and any attorney,
accountant or other agent retained by the Investor or underwriter, all financial
and other records, pertinent corporate documents and properties of the Company,
and cause the Company's officers, directors, employees and independent
accountants to supply all information reasonably requested by the Investor,
underwriter, attorney, accountant or agent in connection with such Registration
Statement;
(ix) use
its
best efforts to cause all such Registrable Securities to be listed on each
securities exchange on which securities of the same class issued by the Company
are then listed or, if no such similar securities are then listed, on Nasdaq
or
a national securities exchange selected by the Company;
(x) provide
a
transfer agent and registrar for all such Registrable Securities not later
than
the effective date of such Registration Statement;
(xi) if
requested, cause to be delivered, immediately prior to the pricing of any
underwritten offering, immediately prior to effectiveness of each Registration
Statement (and, in the case of an underwritten offering, at the time of closing
of the sale of Registrable Securities pursuant thereto), letters from the
Company's independent registered public accountants addressed to the Investor
and each underwriter, if any, stating that such accountants are independent
public accountants within the meaning of the Securities Act and the applicable
rules and regulations adopted by the SEC thereunder, and otherwise in customary
form and covering such financial and accounting matters as are customarily
covered by letters of the independent registered public accountants delivered
in
connection with primary underwritten public offerings;
(xii) make
generally available to its Investors a consolidated earnings statement (which
need not be audited) for the 12 months beginning after the effective date of
a
Registration Statement as soon as reasonably practicable after the end of such
period, which earnings statement shall satisfy the requirements of an earning
statement under Section 11(a) of the Securities Act;
and
(xiii) promptly
notify the Investor and the underwriter or underwriters, if any:
(1) when
the
Registration Statement, any pre-effective amendment, the Prospectus or any
Prospectus supplement or post-effective amendment to the Registration Statement
has been filed and, with respect to the Registration Statement or any
post-effective amendment, when the same has become effective;
(2) of
any
written request by the SEC for amendments or supplements to the Registration
Statement or any Prospectus or of any inquiry by the SEC relating to the
Registration Statement;
(3) of
the
notification to the Company by the SEC of its initiation of any proceeding
with
respect to the issuance by the SEC of any stop order suspending the
effectiveness of the Registration Statement; and
(4) of
the
receipt by the Company of any notification with respect to the suspension of
the
qualification of any Registrable Securities for sale under the applicable
securities or blue sky laws of any jurisdiction.
(b) The
Company represents and warrants that no Registration Statement (including any
amendments or supplements thereto and Prospectuses contained therein) shall
contain any 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
not
misleading (except that the Company makes no representation or warranty with
respect to information relating to the Investor furnished to the Company by
or
on behalf of the Investor specifically for use therein).
(c) The
Company shall make available to the Investor (i) promptly after the same is
prepared and publicly distributed, filed with the SEC, or received by the
Company, one copy of each Registration Statement and any amendment thereto,
each
preliminary Prospectus and Prospectus and each amendment or supplement thereto,
each letter written by or on behalf of the Company to the SEC or the staff
of
the SEC (or other governmental agency or self-regulatory body or other body
having jurisdiction, including any domestic or foreign securities exchange),
and
each item of correspondence from the SEC or the staff of the SEC (or other
governmental agency or self-regulatory body or other body having jurisdiction,
including any domestic or foreign securities exchange), in each case relating
to
such Registration Statement or to any of the documents incorporated by reference
therein, and (ii) such number of copies of a Prospectus, including a preliminary
Prospectus, and all amendments and supplements thereto and such other documents
as the Investor or any underwriter may reasonably request in order to facilitate
the disposition of the Registrable Securities. The Company will promptly notify
the Investor of the effectiveness of each Registration Statement or any
post-effective amendment or the filing of any supplement or amendment to such
Shelf Registration Statement or of any Prospectus supplement. The Company will
promptly respond to any and all comments received from the SEC, with a view
towards causing each Registration Statement or any amendment thereto to be
declared effective by the SEC as soon as practicable, in any event not later
than the timeframes stated in Sections 2(a) or 3(a) as and if applicable, and
shall file an acceleration request, if necessary, immediately following the
resolution or clearance of all SEC comments or, if applicable, following
notification by the SEC that any such Registration Statement or any amendment
thereto will not be subject to review.
(d)
The
Company may require the Investor to furnish to the Company any other information
regarding the Investor and the distribution of such securities as the Company
reasonably determines, based on the advice of counsel, is required to be
included in any Registration Statement.
(e) The
Investor agrees that, upon notice from the Company of the happening of any
event
as a result of which the Prospectus included (or deemed included) in such
Registration Statement contains an untrue statement of a material fact or omits
any material fact necessary to make the statements therein not misleading (a
"Suspension
Notice"),
the
Investor will forthwith discontinue disposition of Registrable Securities
pursuant to such Registration Statement for a reasonable length of time not
to
exceed ten (10) days (thirty (30) days in the case of an event described in
Section 3(d)) until the Investor is advised in writing by the Company that
the
use of the Prospectus may be resumed and is furnished with a supplemented or
amended Prospectus as contemplated by Section 9(a) hereof; provided,
however,
that
such postponement of sales of Registrable Securities by the Investor shall
not
exceed forty-five (45) days in the aggregate in any 12 month period. If the
Company shall give the Investor any Suspension Notice, the Company shall extend
the period of time during which the Company is required to maintain the
applicable Registration Statements effective pursuant to this Agreement by
the
number of days during the period from and including the date of the giving
of
such Suspension Notice to and including the date the Investor either is advised
by the Company that the use of the Prospectus may be resumed or receives the
copies of the supplemented or amended Prospectus contemplated by Section 9(a)
(a
"Blackout
Period").
In
any event, the Company shall not be entitled to deliver more than a total of
three (3) Suspension Notices or notices of any Delay Period in any twelve (12)
month period.
(f) The
Company shall not permit any officer, director, underwriter, broker or any
other
person acting on behalf of the Company to use any free writing prospectus (as
defined in Rule 405 under the Securities Act) in connection with any
registration statement covering Registrable Securities, without the prior
written consent of the Investor and any underwriter.
10. Registration
Expenses.
(a) All
expenses incident to the Company's performance of or compliance with this
Agreement, including, without limitation, all registration and filing fees
(including SEC registration fees and NASD filing fees), fees and expenses of
compliance with securities or blue sky laws, listing application fees, printing
expenses, transfer agent's and registrar's fees, cost of distributing
Prospectuses in preliminary and final form as well as any supplements thereto,
and fees and disbursements of counsel for the Company and all accountants and
other Persons retained by the Company (all such expenses being herein called
"Registration
Expenses")
(but
not including any underwriting discounts or commissions or transfer taxes,
if
any, attributable to the sale of Registrable Securities), shall be borne by
the
Company. In addition, the Company shall pay its internal expenses (including,
without limitation, all salaries and expenses of its officers and employees
performing legal or accounting duties), the expense of any annual audit or
quarterly review, the expense of any liability insurance and the expenses and
fees for listing the securities to be registered on each securities exchange
on
which they are to be listed.
(b) The
Company shall pay, or shall reimburse the stockholders covered by such
registration or sale for, the reasonable fees and disbursements of one law
firm
chosen by such stockholders as their counsel in connection with each
Registration Statement and sale of Registrable Securities pursuant
thereto.
Notwithstanding anything to the contrary, such payment or reimbursement from
the
Company shall not exceed $35,000 per Registration Statement.
(c) The
obligation of the Company to bear the expenses described in Section 10(a) and
to
pay or reimburse the Investor for the expenses described in Section 10(b) shall
apply irrespective of whether a registration, once properly demanded, if
applicable, becomes effective, is withdrawn or suspended, is converted to
another form of registration and irrespective of whether any of the foregoing
shall occur.
11. Indemnification.
(a) The
Company shall indemnify, to the fullest extent permitted by law, the Investor
and its officers, directors, employees and Affiliates and each Person who
controls the Investor (within the meaning of the Securities Act) against all
losses, claims, damages, liabilities and expenses arising out of or based upon
any untrue or alleged untrue statement of material fact contained in any
Registration Statement, Prospectus, preliminary Prospectus or any "issuer free
writing prospectus" (as defined in Securities Act Rule 433) or any amendment
thereof or supplement thereto or any omission or alleged omission of a material
fact required to be stated therein or necessary to make the statements therein
not misleading or any violation or alleged violation by the Company of the
Securities Act, the Exchange Act or applicable "blue sky" laws, except insofar
as the same are made in reliance and in conformity with information relating
to
the Investor furnished in writing to the Company by the Investor expressly
for
use therein. In connection with an underwritten offering, the Company shall
indemnify such underwriter(s), their officers, employees and directors and
each
Person who controls such underwriter(s) (within the meaning of the Securities
Act) at least to the same extent as provided above with respect to the
indemnification of the Investor.
(b) In
connection with any Registration Statement in which the Investor is
participating, the Investor shall furnish to the Company in writing such
information as the Company reasonably determines, based on the advice of
counsel, is required to be included in, any such Registration Statement or
Prospectus and, shall indemnify, to the fullest extent permitted by law, the
Company, its officers, employees, directors, Affiliates, and each Person who
controls the Company (within the meaning of the Securities Act) against all
losses, claims, damages, liabilities and expenses arising out of or based upon
any untrue or alleged untrue statement of material fact contained in the
Registration Statement, Prospectus or preliminary Prospectus or any amendment
thereof or supplement thereto or any omission or alleged omission of a material
fact required to be stated therein or necessary to make the statements therein
not misleading, but only to the extent that the same are made in reliance and
in
conformity with information relating to the Investor furnished in writing to
the
Company by the Investor expressly for use therein.
In no
event shall the liability of the Investor be greater in amount than the amount
of net proceeds received by the Investor upon such sale.
(c) Any
Person entitled to indemnification hereunder shall (i) give prompt written
notice to the indemnifying party of any claim with respect to which it seeks
indemnification and (ii) unless in such indemnified party's reasonable judgment
a conflict of interest between such indemnified and indemnifying parties may
exist with respect to such claim, permit such indemnifying party to assume
the
defense of such claim with counsel reasonably satisfactory to the indemnified
party. If such defense is assumed, the indemnifying party shall not be subject
to any liability for any settlement made by the indemnified party without its
consent (but such consent will not be unreasonably withheld). An indemnifying
party who is not entitled to, or elects not to, assume the defense of a claim
shall not be obligated to pay the fees and expenses of more than one counsel
(in
addition to any local counsel) for all parties indemnified by such indemnifying
party with respect to such claim, unless in the reasonable judgment of any
indemnified party there may be one or more legal or equitable defenses available
to such indemnified party that are in addition to or may conflict with those
available to another indemnified party with respect to such claim. Failure
to
give prompt written notice shall not release the indemnifying party from its
obligations hereunder.
(d) The
indemnification provided for under this Agreement shall remain in full force
and
effect regardless of any investigation made by or on behalf of the indemnified
party or any officer, director or controlling Person of such indemnified party
and shall survive the transfer of securities.
(e) If
the
indemnification provided for in or pursuant to this Section 11 is due in
accordance with the terms hereof, but is held by a court to be unavailable
or
unenforceable in respect of any losses, claims, damages, liabilities or expenses
referred to herein, then each applicable indemnifying party, in lieu of
indemnifying such indemnified party, shall contribute to the amount paid or
payable by such indemnified Person as a result of such losses, claims, damages,
liabilities or expenses 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 that result
in
such losses, claims, damages, liabilities or expenses as well as any other
relevant equitable considerations. The relative fault of the indemnifying party
on the one hand and of the indemnified Person on the other shall be determined
by reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission or alleged omission to state a
material fact relates to information supplied by the indemnifying party or
by
the indemnified party, and by such party's relative intent, knowledge, access
to
information and opportunity to correct or prevent such statement or omission.
In
no event shall the liability of the Investor be greater in amount than the
amount of net proceeds received by the Investor upon such sale.
12. Liquidated
Damages.
If
(a)
the Company fails to file the Registration Statement as required under the
terms
hereof, on or before the applicable dates specified above for such filing,
(b)
such Registration Statement is not declared effective by the SEC on or prior
to
the applicable dates specified above for such effectiveness, or (c) such
Registration Statement is declared effective but thereafter ceases to be
effective or useable in connection with the resales of the Registrable
Securities (each such event referred to in clauses (a) through (c) above a
"Registration
Default"),
then
the Company will pay liquidated damages to the Investor, with respect to the
first ninety (90) day period immediately following the occurrence of such
Registration Default in an amount equal to $0.35 per week per $1,000 amount
of
Registrable Securities held by the Investor ("Liquidated
Damages").
The
amount of Liquidated Damages will increase by an additional $0.20 per week
per
$1,000 amount of Registrable Securities with respect to each subsequent ninety
(90) day period until all Registration Defaults have been cured, up to a maximum
amount of Liquidated Damages of $3.00 per week per $1,000 amount of Registrable
Securities. All accrued Liquidated Damages shall be paid on each Damages Payment
Date by the Company, at the option of the Investor, either by wire transfer
of
immediately available funds to an account specified by the Investor or by
federal funds check by mailing it to the Investor's registered address as it
appears in the register of the Company. Following the cure of all Registration
Defaults, the accrual of Liquidated Damages will cease.
13. Rule
144.
The
Company covenants that it will timely file the reports required to be filed
by
it under the Securities Act and the Exchange Act and the rules and regulations
adopted by the SEC thereunder, and it will take such further action as
the
Investor may
reasonably request to make available adequate current public information with
respect to the Company meeting the current public information requirements
of
Rule 144(c) under the Securities Act, to the extent required to enable
the
Investor to
sell
Registrable Securities without registration under the Securities Act within
the
limitation of the exemptions provided by (i) Rule 144 under the Securities
Act,
as such Rule may be amended from time to time, or (ii) any similar rule or
regulation hereafter adopted by the SEC. Upon the request of the
Investor,
the
Company will deliver to the
Investor a
written
statement as to whether it has complied with such information and
requirements.
14. Transfer
of Registration Rights.
(a) The
Investor may transfer all or any portion of its then-remaining rights under
this
Agreement to any transferee who acquires at least 20% of the Investor's
common stock or Preferred Stock (each, a "transferee").
Any
transfer of registration rights pursuant to this Section 14 shall be effective
upon receipt by the Company of (x) written notice from the Investor stating
the
name and address of any transferee and identifying the amount of Registrable
Securities with respect to which the rights under this Agreement are being
transferred and the nature of the rights so transferred and (y) a written
agreement from the transferee to be bound by all of the terms of this Agreement.
In connection with any such transfer, the term "Investor" as used in this
Agreement shall, where appropriate to assign such rights to such transferee,
be
deemed to refer to the transferee holder of such Registrable Securities. The
Investor and such transferees may exercise the registration rights hereunder
in
such proportion (not to exceed the then-remaining rights hereunder) as they
shall agree among themselves.
(b) After
such transfer, the Investor shall retain its rights under this Agreement with
respect to all other Registrable Securities owned by the Investor. Upon the
request of the Investor, the Company shall execute a Registration Rights
Agreement with such transferee or a proposed transferee substantially similar
to
the applicable sections of this Agreement.
15. Conversion
or Exchange of Other Securities.
If
the
Investor offers Registrable Securities by forward sale, or any options, rights,
warrants or other securities issued by it or any other person that are offered
with, convertible into or exercisable or exchangeable for any Registrable
Securities, the Registrable Securities subject to such forward sale or
underlying such options, rights, warrants or other securities shall be eligible
for registration pursuant to Sections 2, 3 and 4 of this Agreement.
16. Miscellaneous.
(a) Notices
.
All
notices, requests, consents and other communications required or permitted
hereunder shall be in writing and shall be hand delivered or mailed postage
prepaid by registered or certified mail or by facsimile transmission (with
immediate telephone confirmation thereafter) and, in the case of the Investor,
shall also be sent via e-mail,
If
to the
Company:
WorldWater
and Power Corp.
Pennington
Business Park
00
Xxxxx
00 Xxxxx
Xxxxxxxxxx,
XX 00000
Attention:
Xxxxxxx X. Xxxxx
Facsimile
No.: (000) 000-0000
with
a
copy to (which shall not constitute notice):
Salvo
Landau Gruen & Xxxxxx
000
Xxxxxxxx Xxxx Xxxx, Xxxxx 000
Xxxx
Xxxx, Xxxxxxxxxxxx 00000
Attention:
Xxxxxxx X. Xxxxx, Esq.
Facsimile
No.: (000) 000-0000
If
to the
Investor:
EMCORE
Corporation
000
Xxxxxxx Xxxxx
Xxxxxxxx,
XX 00000
Attention:
Xxxxxx X. Xxxxxx, Esq.
Facsimile
No.: (000) 000-0000
With
a
copy to:
Skadden,
Arps, Slate, Xxxxxxx & Xxxx LLP
Xxxx
Xxxxx Xxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000-0000
Attention:
Xxxxxx X. Xxxxxxx, Esq.
Facsimile
No.: (000) 000-0000
If
to a
transferee Investor, to the address of such transferee Investor set forth in
the
transfer documentation provided to the Company;
in
each
case with copies to (which shall not constitute notice):
Skadden,
Arps, Slate, Xxxxxxx & Xxxx LLP
Xxxx
Xxxxx Xxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000-0000
Attention:
Xxxxxx X. Xxxxxxx, Esq.
Facsimile
No.: (000) 000-0000
or
at
such other address as such party each may specify by written notice to the
others, and each such notice, request, consent and other communication shall
for
all purposes of the Agreement be treated as being effective or having been
given
when delivered personally, upon one Business Day after being deposited with
a
courier if delivered by courier, upon receipt of facsimile confirmation if
transmitted by facsimile, or, if sent by mail, at the earlier of its receipt
or
72 hours after the same has been deposited in a regularly maintained receptacle
for the deposit of United States mail, addressed and postage prepaid as
aforesaid.
(b) No
Waivers
.
No
failure or delay by any party in exercising any right, power or privilege
hereunder shall operate as a waiver thereof nor shall any single or partial
exercise thereof preclude any other or further exercise thereof or the exercise
of any other right, power or privilege. The rights and remedies herein provided
shall be cumulative and not exclusive of any rights or remedies provided by
law.
(c) Successors
and Assigns
.
The
provisions of this Agreement shall be binding upon and inure to the benefit
of
the parties hereto and their respective successors and assigns. If the
outstanding Common Stock is converted into or exchanged or substituted for
other
securities issued by any other Person, as a condition to the effectiveness
of
the merger, consolidation, reclassification, share exchange or other transaction
pursuant to which such conversion, exchange, substitution or other transaction
takes place, such other Person shall automatically become bound hereby with
respect to such other securities constituting Registrable Securities and, if
requested by the Investor or a permitted transferee, shall further evidence
such
obligation by executing and delivering to the Investor and such transferee
a
written agreement to such effect in form and substance satisfactory to the
Investor.
(d) Governing
Law
.
The
internal laws, and not the laws of conflicts (other than Section 5-1401 of
the
General Obligations Law of the State of New York), of New York shall govern
the
enforceability and validity of this Agreement, the construction of its terms
and
the interpretation of the rights and duties of the parties.
(e) Jurisdiction
.
Any
suit, action or proceeding seeking to enforce any provision of, or based on
any
matter arising out of or in connection with, this Agreement or the transactions
contemplated hereby may only be brought in any federal or state court located
in
the County and State of New York, and each of the parties hereby consents to
the
exclusive jurisdiction of such courts (and of the appropriate appellate courts
therefrom) in any such suit, action or proceeding and irrevocably waives, to
the
fullest extent permitted by law, any objection which it may now or hereafter
have to the laying of the venue of any such suit, action or proceeding in any
such court or that any such suit, action or proceeding which is brought in
any
such court has been brought in an inconvenient forum. Process in any such suit,
action or proceeding may be served on any party anywhere in the world, whether
within or without the jurisdiction of any such court. Without limiting the
foregoing, each party agrees that service of process on such party as provided
in Section 16(a) shall be deemed effective service of process on such
party.
(f) Waiver
of Jury Trial
.
EACH OF
THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY
JURY
IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE
TRANSACTIONS CONTEMPLATED HEREBY.
(g) Counterparts;
Effectiveness
.
This
Agreement may be executed in any number of counterparts (including by facsimile)
and by different parties hereto in separate counterparts, with the same effect
as if all parties had signed the same document. All such counterparts shall
be
deemed an original, shall be construed together and shall constitute one and
the
same instrument. This Agreement shall become effective when each party hereto
shall have received counterparts hereof signed by all of the other parties
hereto.
(h) Entire
Agreement
.
This
Agreement contains the entire agreement between the parties hereto with respect
to the subject matter hereof and supersedes and replaces all other prior
agreements, written or oral, among the parties hereto with respect to the
subject matter hereof.
(i) Captions
.
The
headings and other captions in this Agreement are for convenience and reference
only and shall not be used in interpreting, construing or enforcing any
provision of this Agreement.
(j) Severability
.
If any
term, provision, covenant or restriction of this Agreement is held by a court
of
competent jurisdiction or other authority to be invalid, void or unenforceable,
the remainder of the terms, provisions, covenants and restrictions of this
Agreement shall remain in full force and effect and shall in no way be affected,
impaired or invalidated so long as the economic or legal substance of the
transactions contemplated hereby is not affected in any manner materially
adverse to any party. Upon such a determination, the parties shall negotiate
in
good faith to modify this Agreement so as to effect the original intent of
the
parties as closely as possible in an acceptable manner in order that the
transactions contemplated hereby be consummated as originally contemplated
to
the fullest extent possible.
(k) Amendments
.
The
provisions of this Agreement, including the provisions of this sentence, may
not
be amended, modified or supplemented, and waivers or consents to or departures
from the provisions hereof may not be given, without the written consent of
the
Company and the Investor.
(l) Aggregation
of Stock
.
All
Registrable Securities held by or acquired by any Affiliated Persons will be
aggregated together for the purpose of determining the availability of any
rights under this Agreement.
(m) Remedies
.
In the
event of a breach by the Company of its obligations under this Agreement, each
holder of Registrable Securities, in addition to being entitled to exercise
all
rights granted by law, including recovery of damages, will be entitled to
specific performance of its rights under this Agreement. The Company agrees
that
monetary damages would not be adequate compensation for any loss incurred by
reason of a breach by it of any of the provisions of this Agreement and hereby
further agrees that, in the event of any action for specific performance in
respect of such breach, it shall waive the defense that remedy of law would
be
adequate.
[Execution
Page Follows]
IN
WITNESS WHEREOF, this Registration rights Agreement has been duly executed
by
each of the parties hereto as of the date first written above.
EMCORE
Corporation
By:
/s/
Xxxxxx X. Xxxxxx
Name:
Xxxxxx X. Xxxxxx
Title:
Chief
Legal Officer, Executive Vice-President and Secretary
WorldWater
& Power Corp.
By:
/s/
Xxxxxxx X. Xxxxx
Name:
Xxxxxxx X. Xxxxx
Title:
Chairman
