REGISTRATION RIGHTS AGREEMENT
EXECUTION COPY
EXHIBIT 3
REGISTRATION RIGHTS AGREEMENT
This REGISTRATION RIGHTS AGREEMENT, dated May 15, 2003 (this "AGREEMENT"), among Evergreen Solar, Inc., a Delaware corporation (the "COMPANY"), Perseus 2000, L.L.C. ("PERSEUS"), Nth Power Technologies Fund II, LP ("NTH POWER II"), Nth Power Technologies Fund II-A, LP ("NTH POWER II-A" and together with Nth Power II, "NTH POWER"), RockPort Capital Partners, L.P. ("ROCKPORT"), RP Co-Investment Fund I, L.P. ("RP CO-INVESTMENT"), Micro-Generation Technology Fund, LLC ("Micro-Generation"), UVCC Fund II ("UVCC II"), UVCC II Parallel Fund, L.P. ("UVCC II PARALLEL" and together with Micro-Generation and UVCC II, "ARETE FUNDS"), Caisse de depot et placement du Quebec ("CDP"), CDP Capital - Technology Ventures U.S. Fund 2002 L.P. ("CDP CAPITAL"), Beacon Power Corporation ("BEACON"), Massachusetts Technology Park Corporation ("MTPC"), Zero Stage Capital VII, L.P. ("ZERO Stage"), Zero Stage Capital (Cayman) VII, L.P. ("ZERO STAGE CAYMAN"), Zero Stage Capital SBIC VII, L.P. ("ZERO STAGE SBIC"), IMPAX Environmental Markets plc ("IMPAX"), Xxxxxxx Xxxxx New Energy Technology plc ("XXXXXXX XXXXX NEW ENERGY FUND"), MLIIF New Energy Fund ("MLIIF"), PNE Invest Limited ("PNE"), Odyssey Fund ("ODYSSEY"), XXX Private Equity Energy Fund LP ("XXX ENERGY FUND"), XXX Sustainability Private Equity LP ("XXX PRIVATE EQUITY") and XXX Xxxxx Energy ("XXX XXXXX ENERGY" and together with Perseus, Nth Power, Rockport, RP Co-Investment, Arete Funds, CDP, CDP Capital, Beacon, MTPC, Zero Stage, Zero Stage Cayman, Zero Stage SBIC, Impax, Xxxxxxx Xxxxx New Energy Fund, MLIIF, PNE, Odyssey, XXX Energy Fund, XXX Private Equity and XXX Xxxxx Energy, the "INVESTORS"). Unless otherwise provided in this Agreement, capitalized terms used herein have the respective meanings given to them in Section 1.1 hereof.
ARTICLE I
"AFFILIATE" means any Person who is an "affiliate" as defined in Rule 12b-2 of the General Rules and Regulations under the Exchange Act.
"AGREEMENT" means this Agreement as the same may be amended, supplemented or modified in accordance with the terms hereof.
"APPROVED UNDERWRITER" has the meaning set forth in Section 4.6.
"BEACON WARRANT" has the meaning set forth in the Purchase Agreement.
"BOARD OF DIRECTORS" means the Board of Directors of the Company.
"BUSINESS DAY" means any day other than a Saturday, Sunday or other day on which commercial banks in the State of New York are authorized or required by law or executive order to close.
"CHARTER DOCUMENTS" means the Certificate of Incorporation and the By-laws of the Company.
"CLOSING DATE" has the meaning set forth in the Purchase Agreement.
"COMMISSION" means the United States Securities and Exchange Commission or any similar agency then having jurisdiction to enforce the Securities Act.
"COMMON STOCK" means the Common Stock, par value $0.01 per share, of the Company and any other capital stock of the Company into which such stock is reclassified or reconstituted and any other common stock of the Company.
"COMMON STOCK EQUIVALENTS" means any security or obligation which is by its terms, directly or indirectly, convertible into or exchangeable or exercisable into or for shares of Common Stock, including, without limitation, the Series A Preferred Stock and any option, warrant or other subscription or purchase right with respect to Common Stock or any Common Stock Equivalent.
"COMPANY" has the meaning set forth in the preamble to this Agreement.
"COMPANY UNDERWRITER" has the meaning set forth in Section 5.1.
"DEMAND REGISTRATION" has the meaning set forth in Section 4.1.
"DESIGNATED HOLDER" means the Investors and any transferee of the Investors to whom Registrable Securities have been transferred in accordance with Section 10.5 of this Agreement, other than a transferee to whom Registrable Securities have been transferred pursuant to a Registration Statement under the Securities Act or Rule 144 or Regulation S under the Securities Act (or any successor rule thereto), but in 3 each case solely for so long as such Investor or transferee continues to be a holder of Registrable Securities.
"EFFECTIVENESS PERIOD" means the period commencing with the date of this Agreement and ending on the date that all Registrable Securities have ceased to be Registrable Securities.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended, and the rules and regulations of the Commission thereunder.
"HOLDERS' COUNSEL" has the meaning set forth in Section 7.1(a).
"INCIDENTAL REGISTRATION" has the meaning set forth in Section 5.1.
"INDEMNIFIED PARTY" has the meaning set forth in Section 8.3.
"INDEMNIFYING PARTY" has the meaning set forth in Section 8.3.
"INITIATING HOLDERS" has the meaning set forth in Section 4.1.
"INSPECTOR" has the meaning set forth in Section 7.1(h).
"INVESTORS" has the meaning set forth in the preamble to this Agreement and shall also include any transferee thereof.
"KNOWLEDGE" has the meaning set forth in the Purchase Agreement.
"LIABILITY" has the meaning set forth in Section 8.1.
"NASD" means the National Association of Securities Dealers, Inc.
"PERSON" means any individual, firm, corporation, partnership, limited liability company, trust, incorporated or unincorporated association, joint venture, joint stock company, limited liability company, government (or an agency or political subdivision thereof) or other entity of any kind, and shall include any successor (by merger or otherwise) of such entity.
"PURCHASE AGREEMENT" has the meaning set forth in the recitals to this Agreement. "RECORDS" has the meaning set forth in Section 7.1(h).
"REGISTRABLE SECURITIES" means, subject to Section 2.2 below, the shares of Common Stock to be issued upon (a) the conversion of the Series A Preferred Stock and (b) the exercise of the Beacon Warrant.
"REGISTRABLE SHARES" has the meaning set forth in the Series D Purchase Agreement
"REGISTRATION EXPENSES" has the meaning set forth in Section 7.4.
"REGISTRATION STATEMENT" means a Registration Statement filed pursuant to the Securities Act. "S-3
INITIATING HOLDERS" has the meaning set forth in Section 6.1.
"S-3 REGISTRATION" has the meaning set forth in Section 6.1.
"SECURITIES ACT" means the Securities Act of 1933, as amended, and the rules and regulations of the Commission promulgated thereunder.
"SERIES A PREFERRED STOCK" has the meaning set forth in the recitals to this Agreement.
"SERIES D PURCHASE AGREEMENT" means that certain Series D Preferred Stock Purchase Agreement, dated as of December 28, 1999, by and among the Company and the parties thereto.
"SHELF REGISTRATION STATEMENT" has the meaning set forth in Section 3.1.
"STOCKHOLDERS" has the meaning set forth in the Series D Purchase Agreement.
"VALID BUSINESS REASON" has the meaning set forth in Section 4.1.
ARTICLE II
GENERAL; SECURITIES SUBJECT TO THIS AGREEMENT
ARTICLE III
ARTICLE IV
4.2 INCIDENTAL OR "PIGGY-BACK" RIGHTS WITH RESPECT TO A DEMAND REGISTRATION. Each of the Designated Holders (other than Initiating Holders which have requested a registration under Section 4.1) may offer its or his Registrable Securities under any Demand Registration pursuant to this Section 4.2. Within five (5) Business Days after the receipt of a request for a Demand Registration from an Initiating Holder, the Company shall (i) give written notice thereof to all of the Designated Holders (other than Initiating Holders which have requested a registration under Section 4.1) and (ii) subject to Section 4.5, include in such registration all of the Registrable Securities held by such Designated Holders from whom the Company has received a written request for inclusion therein within ten (10) Business Days of the receipt by such Designated Holders of such written notice referred to in clause (i) above. Each such request by such Designated Holders shall specify the number of Registrable Securities proposed to be registered. The failure of any Designated Holder to respond within such 10-Business Day period referred to in clause (ii) above shall be deemed to be a waiver of such Designated Holder's rights under this Article IV with respect to such Demand Registration. Any Designated Holder may waive its rights under this Article IV prior to the expiration of such 10-Business Day period by giving written notice to the Company, with a copy to the Initiating Holders.
ARTICLE V
INCIDENTAL OR "PIGGY-BACK" REGISTRATION
5.1 REQUEST FOR INCIDENTAL REGISTRATION. At any time after the date hereof, if the Shelf Registration Statement is not effective and the Company proposes to file a Registration Statement under the Securities Act with respect to an offering by the Company for its own account (other than a Registration Statement on Form S-4 or S-8 or any successor thereto, or any Registration Statement filed pursuant to subsection 8(c) of the Series D Purchase Agreement) or for the account of any stockholder of the Company other than any Designated Holders, then the Company shall give written notice of such proposed filing to each of the Designated Holders at least twenty (20) days before the anticipated filing date, and such notice shall describe the proposed registration and distribution and offer such Designated Holders the opportunity to register the number of Registrable Securities as each such Designated Holder may request (an "INCIDENTAL REGISTRATION"). The Company shall use its reasonable best efforts (within twenty (20) days of the notice by the Designated Holders provided for below in this sentence) to cause the managing underwriter or underwriters in the case of a proposed underwritten offering (the "COMPANY UNDERWRITER") to permit each of the Designated Holders who have requested the Company in writing within ten (10) Business Days of the giving of the notice by the Company to participate in the Incidental Registration to include its, his or her Registrable Securities in such offering on the same terms and conditions as the securities of the Company or the account of such other stockholder, as the case may be, included therein. In connection with any Incidental Registration under this Section 5.1 involving an underwritten offering, the Company shall not be required to include any Registrable Securities in such underwritten offering unless the Designated Holders thereof accept the terms of the underwritten offering as agreed upon between the Company, such other stockholders, if any, and the Company Underwriter. If the Company Underwriter determines that the registration of all or part of the Registrable Securities which the Designated Holders have requested to be included would materially adversely affect the success of such offering, then the Company shall be required to include in such Incidental Registration, to the extent of the amount that the Company Underwriter believes may be sold without causing such adverse effect, FIRST, all of the securities to be offered for the account of the Company, SECOND, the Registrable Securities to be offered for the account of the Designated Holders pursuant to this Article V and the Registrable Shares to be offered for the account of the Stockholders pursuant to Section 8(d) of the Series D Purchase Agreement, as a group, which Registrable Securities and Registrable Shares shall be allocated PRO RATA among such Designated 9 Holders and Stockholders based on the number of Registrable Securities or Registrable Shares, as the case may be, requested to be included in such offering by each such Designated Holder or Stockholder, and THIRD, other securities requested to be included in such offering.
5.2 RIGHT TO TERMINATE REGISTRATION. The Company shall have the right to terminate or withdraw any registration initiated by it under Section 5.1 prior to the effectiveness of such registration whether or not any Designated Holder has elected to include Registrable Securities in such registration.
5.3 EXPENSES. The Company shall bear all Registration Expenses in connection with any Incidental Registration pursuant to this Article V, whether or not such Incidental Registration becomes effective.
ARTICLE VI
6.1 REQUEST FOR A FORM S-3 REGISTRATION. At any time after the date hereof that the Shelf Registration Statement is not effective, in the event that the Company shall receive from one or more Investors (the "S-3 INITIATING HOLDERS") a written request that the Company register, under the Securities Act on Form S-3 (or any successor form then in effect) (an "S-3 REGISTRATION"), all or a portion of the Registrable Securities owned by such S-3 Initiating Holders, the Company shall give written notice of such request to all of the Designated Holders (other than the S-3 Initiating Holders who have requested an S-3 Registration under this Section 6.1) as far in advance as practicable (but not less than ten (10) Business Days) before the anticipated filing date of such Form S-3, and such notice shall describe the proposed registration and offer such Designated Holders the opportunity to register the number of Registrable Securities as each such Designated Holder may request in writing to the Company, given within ten (10) days after their receipt from the Company of the written notice of such registration. If requested by the S-3 Initiating Holders such S-3 Registration shall be for an offering on a continuous basis pursuant to Rule 415, under the Securities Act. With respect to each S-3 Registration, the Company shall, subject to Section 6.2, (i) include in such offering the Registrable Securities of the S-3 Initiating Holders and the Designated Holders who have requested in writing to participate in such registration on the same terms and conditions as the Registrable Securities of the S-3 Initiating Holders included therein and (ii) use its reasonable best efforts to cause such registration pursuant to this Section 6.1 to become and remain effective as soon as practicable, but in any event not later than forty-five (45) days after it receives a request therefor. The Company's obligations in this Article VI with respect to each requested S-3 Registration are subject to the conditions that (i) the reasonably anticipated aggregate price to the public of the Registrable Securities requested for inclusion in such S-3 Registration shall equal or exceed $1,000,000 and (ii) the Company is a registrant entitled to use Form S-3 or a successor thereto to register the securities.
6.2 FORM S-3 UNDERWRITING PROCEDURES. If the S-3 Initiating Holders holding a majority of the Registrable Securities held by all of the S-3 Initiating Holders so elect, the Company shall use its reasonable best efforts to cause such S-3 Registration pursuant to this Article VI to be in the form of a firm commitment underwritten offering and the managing underwriter or underwriters selected for such offering shall be the Approved Underwriter selected in accordance with Section 4.6. In connection with any S-3 Registration under Section 6.1 involving an underwritten offering, the Company shall not be required to include any Registrable Securities in such underwritten offering unless the Designated Holders thereof accept the terms of the underwritten offering as agreed upon between the Company, the Approved Underwriter and the S-3 Initiating Holders, and then only in such quantity as such underwriter believes will not jeopardize the success of such offering by the S-3 Initiating Holders. If the Approved Underwriter believes that the registration of all or part of the Registrable Securities which the S-3 Initiating Holders and the other Designated Holders have requested to be included would materially adversely affect the success of such public offering, then the Company shall be required to include in the underwritten offering, to the extent of the amount that the Approved Underwriter believes may be sold without causing such adverse effect, FIRST, such number of Registrable Securities of the S-3 Initiating Holders and any other Designated Holders participating in the offering pursuant to this Article VI, which Registrable Securities shall be allocated PRO RATA among such S-3 Initiating Holders and such other Designated Holders, based on the number of Registrable Securities requested to be included in such offering by each such S-3 Initiating Holder and Designated Holder, SECOND, securities offered by the Company for its own account, and THIRD, any other securities of the Company requested by holders thereof to be included in such registration, which such securities shall be allocated PRO RATA among such stockholders, based on the number of the Company's securities requested to be included in such offering by each such stockholder.
6.3 LIMITATIONS ON FORM S-3 REGISTRATIONS. If the Board of Directors, has a Valid Business Reason, the Company may (x) postpone filing a Registration Statement relating to a S-3 Registration until such Valid Business Reason no longer exists, but in no event for more than ninety (90) days, and (y) in case a Registration Statement has been filed relating to a S-3 Registration, the Company, upon the approval of a majority of the Board of Directors, may cause such Registration Statement to be withdrawn and its effectiveness terminated or may postpone amending or supplementing such Registration Statement (so long as the Designated Holders shall have the rights set forth in this Article VI within ninety (90) days of any such event). The Company shall give written notice of its determination to postpone or withdraw a Registration Statement and of the fact that the Valid Business Reason for such postponement or withdrawal no longer exists, in each case, promptly after the occurrence thereof. Notwithstanding anything to the contrary contained herein, the Company may not postpone or withdraw a filing due to a Valid Business Reason under this Section 6.3 or Section 4.1 more than once in any twelve (12) month period. In addition, the Company shall not be required to effect any registration pursuant to Section 6.1 within ninety (90) days after the effective date of any other Registration Statement of the Company if (i) the Registration Statement was not for the account of the Designated Holders but the Designated Holders had the opportunity to include at least two-thirds of the Registrable Securities they requested to 11 include in such registration pursuant to Article V or (ii) the Registration Statement was filed pursuant to Article IV or this Article VI.
6.4 NO LIMITATION OF SHELF REGISTRATION RIGHT. No registration requested by any of the S-3 Initiating Holders pursuant to this Article VI shall be deemed to limit the rights of the Designated Holder set forth in Article III.
6.5 NO DEMAND REGISTRATION. No registration requested by any S-3 Initiating Holders pursuant to this Article VI shall be deemed a Demand Registration pursuant to Article IV.
6.6 EXPENSES. The Company shall bear all Registration Expenses in connection with any S-3 Registration pursuant to this Article VI, whether or not such S-3 Registration becomes effective.
ARTICLE VII
(a) prepare and file with the Commission a Registration Statement on any form for which the Company then qualifies or which counsel for the Company shall deem appropriate and which form shall be available for the sale of such Registrable Securities in accordance with the intended method of distribution thereof, and use all reasonable best efforts to cause such Registration Statement to become effective; PROVIDED, HOWEVER, that (x) before filing a Registration Statement or prospectus or any amendments or supplements thereto, the Company shall provide a single counsel selected by the Designated Holders holding a majority of the Registrable Securities being registered in such registration ("HOLDERS' COUNSEL") with an adequate and appropriate opportunity to review and comment on such Registration Statement and each prospectus included therein (and each amendment or supplement thereto) to be filed with the Commission, subject to such documents being under the Company's control, and (y) the Company shall notify the Holders' Counsel and each seller of Registrable Securities of any stop order issued or threatened by the Commission and use all reasonable efforts to prevent the entry of such stop order or to remove it if entered;
(b) prepare and file with the Commission such amendments and supplements to such Registration Statement and the prospectus used in connection therewith as may be reasonably necessary to keep such Registration Statement effective for the period specified in such Article, or if not so specified, the lesser of (x) 180 days and (y) such shorter period which will terminate when all Registrable Securities covered 12 by such Registration Statement have been sold (PROVIDED, that if the S-3 Initiating Holders have requested that an S-3 Registration be for an offering on a continuous basis pursuant to Rule 415 under the Securities Act, then the Company shall keep such Registration Statement effective until the earliest of (i) the second anniversary of the effective date of such Registration Statement, (ii) such time as the Company delivers an opinion of counsel that each Designated Holder having Registrable Securities covered by such Registration Statement may sell in the open market in a single transaction all Registrable Securities then held by each such Designated Holder pursuant to Rule 144(k) of the Securities Act (or any similar provision then in force) without being subject to the volume limitations thereof or otherwise under an applicable exemption from the registration requirements of the Securities Act, as amended, and all other applicable securities and blue sky laws, or (iii) all Registrable Securities covered by such Registration Statement have been sold) and shall 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 sellers thereof set forth in such Registration Statement;
(c) furnish to each seller of Registrable Securities, prior to filing a Registration Statement, at least one copy of such Registration Statement as is proposed to be filed, and thereafter such number of copies of such Registration Statement, each amendment and supplement thereto (in each case including all exhibits thereto), the prospectus included in such Registration Statement (including each preliminary prospectus) and any prospectus filed under Rule 424 under the Securities Act as each such seller may reasonably request in order to facilitate the disposition of the Registrable Securities owned by such seller;
(d) register or qualify such Registrable Securities under such other securities or "blue sky" laws of such jurisdictions as any seller of Registrable Securities may reasonably request, and continue such registration or qualification in effect in such jurisdiction for as long as permissible pursuant to the laws of such jurisdiction, or for as long as any such seller reasonably requests or until all of such Registrable Securities are sold, whichever is shortest, and do any and all other acts and things which may be reasonably necessary or advisable to enable any such seller to consummate the disposition in such jurisdictions of the Registrable Securities owned by such seller; PROVIDED, HOWEVER, that the Company shall not be required to (x) qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this Section 7.1(d), (y) subject itself to taxation in any such jurisdiction or (z) consent to general service of process in any such jurisdiction;
(e) notify each seller of Registrable Securities: (i) when a prospectus, any prospectus supplement, a Registration Statement or a post-effective amendment to a Registration Statement has been filed with the Commission, and, with respect to a Registration Statement or any post-effective amendment, when the same has become effective; (ii) of any request by the Commission or any other federal or state governmental authority for amendments or supplements to a Registration Statement or related prospectus or for additional information; (iii) of the issuance by the Commission or any other federal or state governmental authority of any stop order suspending the 13 effectiveness of a Registration Statement or the initiation or threatening of any proceedings for that purpose; (iv) of the receipt by the Company of any notification with respect to the suspension of the qualification or exemption from qualification of any of the Registrable Securities for sale in any jurisdiction or the initiation or threatening of any proceedings for such purpose; (v) of the existence of any fact or happening of any event of which the Company has Knowledge which makes any statement of a material fact in such Registration Statement or related prospectus or any document incorporated or deemed to be incorporated therein by reference untrue or which would require the making of any changes in the Registration Statement or prospectus in order that, in the case of the Registration Statement, it will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading, and that in the case of such prospectus, it will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading; and (vi) determination by counsel of the Company that a post-effective amendment to a Registration Statement is advisable. (f) upon the occurrence of any event contemplated by Section 7.1(e)(v), as promptly as practicable, prepare a supplement or amendment to such Registration Statement or related prospectus and furnish to each seller of Registrable Securities a reasonable number of copies of such supplement to or an amendment of such Registration Statement or prospectus as may be necessary so that, after delivery to the purchasers of such Registrable Securities, in the case of the Registration Statement, it will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading, and that in the case of such prospectus, it will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
(g) enter into and perform customary agreements (including an underwriting agreement in customary form with the Approved Underwriter or Company Underwriter, if any, selected as provided in Article IV, Article V or Article VI, as the case may be) and take such other actions as are prudent and reasonably required in order to expedite or facilitate the disposition of such Registrable Securities, including causing its officers to participate in "road shows" and other information meetings organized by the Approved Underwriter or Company Underwriter, if applicable;
(h) make available at reasonable times for inspection by any seller of Registrable Securities, any managing underwriter participating in any disposition of such Registrable Securities pursuant to a Registration Statement, Holders' Counsel and any attorney, accountant or other agent retained by any such seller or any managing underwriter (each, an "INSPECTOR" and collectively, the "INSPECTORS"), all financial and other records, pertinent corporate documents and properties of the Company and its subsidiaries (collectively, the "RECORDS") as shall be reasonably necessary to enable them to exercise their due diligence responsibility, and cause the Company's and its 14 subsidiaries' officers, directors and employees, and the independent public accountants of the Company, to supply all information reasonably requested by any such Inspector in connection with such Registration Statement. Notwithstanding the foregoing, Records and other information that the Company determines, in good faith, to be confidential and which it notifies the Inspectors are confidential shall not be disclosed by the Inspectors or used for any purpose other than as necessary or appropriate for the purpose of such inspection (and the Inspectors shall confirm their agreement in writing in advance to the Company if the Company shall so request) unless (x) the disclosure of such Records is necessary, in the Company's judgment, to avoid or correct a misstatement or omission in the Registration Statement, (y) the release of such Records is ordered pursuant to a subpoena or other order from a court of competent jurisdiction after exhaustion of all appeals therefrom or (z) the information in such Records was known to the Inspectors on a non-confidential basis prior to its disclosure by the Company or has been made generally available to the public. Each seller of Registrable Securities agrees that it shall, upon learning that disclosure of such Records is sought in a court of competent jurisdiction, give notice to the Company and allow the Company, at the Company's expense, to undertake appropriate action to prevent disclosure of the Records deemed confidential;
(i) if such sale is pursuant to an underwritten offering, obtain "comfort" letters dated the effective date of the Registration Statement and the date of the closing under the underwriting agreement from the Company's independent public accountants in customary form and covering such matters of the type customarily covered by "comfort" letters as Holders' Counsel or the managing underwriter reasonably requests;
(j) furnish, at the request of any seller of Registrable Securities on the date such securities are delivered to the underwriters for sale pursuant to such registration or, if such securities are not being sold through underwriters, on the date the Registration Statement with respect to such securities becomes effective, an opinion, dated such date, of counsel representing the Company for the purposes of such registration, addressed to the underwriters, if any, and to the seller making such request, covering such legal matters with respect to the registration in respect of which such opinion is being given as the underwriters, if any, and such seller may reasonably request and are customarily included in such opinions;
(k) comply with all applicable rules and regulations of the Commission, and make generally available to its security holders, as soon as reasonably practicable but no later than fifteen (15) months after the effective date of the Registration Statement, an earnings statement covering a period of twelve (12) months beginning after the effective date of the Registration Statement, in a manner which satisfies the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder;
(l) cause all such Registrable Securities to be listed on each securities exchange on which similar securities issued by the Company are then listed; PROVIDED, that the applicable listing requirements are satisfied; 15
(m) keep Holders' Counsel advised in writing as to the initiation and progress of any registration under Article III, Article IV, Article V or Article VI hereunder; PROVIDED, that the Company shall provide Holders' Counsel with all correspondence with the Commission in connection with any Registration Statement filed hereunder to the extent that such Registration Statement has not been declared effective on or prior to the date required hereunder;
(n) provide reasonable cooperation to each seller of Registrable Securities and each underwriter participating in the disposition of such Registrable Securities and their respective counsel in connection with any filings required to be made with the NASD; and
(o) take all other steps reasonably necessary to effect the registration of the Registrable Securities contemplated hereby.
ARTICLE VIII
ARTICLE IX
ARTICLE X
10.1 RECAPITALIZATIONS, EXCHANGES, ETC. The provisions of this Agreement shall apply to the full extent set forth herein with respect to (i) the shares of Common Stock and the Common Stock Equivalents, (ii) any and all shares of voting common stock of the Company into which the shares of Common Stock or Common Stock Equivalents are converted, exchanged or substituted in any recapitalization or other capital reorganization by the Company and (iii) any and all equity securities of the Company or any successor or assign of the Company (whether by merger, consolidation, sale of assets or otherwise) which may be issued in respect of, in conversion of, in exchange for or in substitution of, the shares of Common Stock or Common Stock Equivalents and shall be appropriately adjusted for any stock dividends, splits, reverse splits, combinations, recapitalizations and the like occurring after the date hereof. The Company shall cause any successor or assign (whether by merger, consolidation, sale of assets or otherwise) to enter into a new registration rights agreement with the Designated Holders on terms substantially the same as this Agreement as a condition of any such transaction.
10.9 GOVERNING LAW; CONSENT TO JURISDICTION. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO THE PRINCIPLES OF CONFLICTS OF LAW THEREOF. The parties hereto irrevocably submit to the non-exclusive jurisdiction of any state or federal court sitting in the County of New York, in the State of New York over any suit, action or proceeding arising out of or relating to this Agreement or the affairs of the Company. To the fullest extent they may effectively do so under applicable law, the parties hereto irrevocably waive and agree not to assert, by way of motion, as a defense or otherwise, any claim that they are not subject to the jurisdiction of any such court, any objection that they may now or hereafter have to the laying of the venue of any such suit, action or proceeding brought in any such court and any claim that any such suit, action or proceeding brought in any such court has been brought in an inconvenient forum.
IN WITNESS WHEREOF, the undersigned have executed, or have caused to be executed, this Registration Rights Agreement on the date first written above.
EVERGREEN SOLAR, INC.
By: /s/ Xxxx X. Xxxxxx -----------------------------------------------
Name:
Title:
PERSEUS 2000, L.L.C.
By: Perseus 2000 Management, L.L.C., its Manager
By: /s/ Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx
Title: Managing Director
NTH POWER TECHNOLOGIES FUND II, LP
By: Nth Power LLC, its General Partner
By: /s/ Xxx Xxxxxxxx
Name: Xxx Xxxxxxxx
Title: Managing Director
NTH POWER TECHNOLOGIES FUND II-A, LP
By: Nth Power LLC, its General Partner
By: /s/ Xxx Xxxxxxxx
Name: Xxx Xxxxxxxx
Title: Managing Director
ROCKPORT CAPITAL PARTNERS, L.P.
By: RockPort Capital I, LLC, its General Partner
By: /s/ Xxxxxxx X. XxXxxxxxx
Name: Xxxxxxx X. XxXxxxxxx
Title: Managing Member
RP Co-Investment Fund I, L.P.
By: RP Co-Investment Fund I GP, LLC
By: /s/ Xxxxxxx X. XxXxxxxxx
Name: Xxxxxxx X. XxXxxxxxx
Title: Managing Member
MICRO-GENERATION TECHNOLOGY FUND, LLC
By: Arete Corporation, Manager
By: /s/ Xxxxxx X. Xxxx, Xx.
Name: Xxxxxx X. Xxxx, Xx.
Title: President
UVCC FUND II
By: Arete Venture Investors II, L.P.
By: /s/ Xxxxxx X. Xxxx, Xx.
Name: Xxxxxx X. Xxxx, Xx.
Title: General Partner
UVCC II PARALLEL FUND, L.P.
By: Arete Ventures L.P. III
By: /s/ Xxxxxx X. Xxxx, Xx.
Name: Xxxxxx X. Xxxx, Xx.
Title: General Partner
[Signature Page - Registration Rights Agreement]
CAISSE DE DEPOT ET PLACEMENT DU QUEBEC
By: /s/ Xxx Xxxxxxx
Name: Xxx Xxxxxxx
Title: Partner
By: /s/ Xxxxx Xxxxxx
Name: Xxxxx Xxxxxx Title: President CDP CAPITAL - TECHNOLOGY VENTURES U.S. FUND 2002 L.P. By: Management U.S. Fund 2002 Inc., its General Partner
By: /s/ Xxx Xxxxxxx
Name: Xxx Xxxxxxx
Title: Partner
By: /s/ Xxxxx Xxxxxx
Name: Xxxxx Xxxxxx
Title: President
BEACON POWER CORPORATION
By: /s/ F. Xxxxxxx Xxxx
Name: F. Xxxxxxx Xxxx
Title: President and CEO
MASSACHUSETTS TECHNOLOGY PARK CORPORATION
By: /s/ Xxxxxxxx Xxxxx
Name: Xxxxxxxx Xxxxx
Title: Executive Director
ZERO STAGE CAPITAL VII, L.P.
By: Zero Stage Capital Associates VII, L.P., its General Partner
By: Zero Stage Capital Associates GP VII, Inc., its General Partner
By: /s/ Xxxx Xxxxxx
Name: Xxxx Xxxxxx
Title: Managing Director & CEO
ZERO STAGE CAPITAL (CAYMAN) VII, L.P.
By: Zero Stage Capital Associates VII, L.P., its General Partner By: Zero Stage Capital GP VII, Inc., its General Partner
By: /s/ Xxxx Xxxxxx
Name: Xxxx Xxxxxx
Title: Managing Director & CEO
ZERO STAGE CAPITAL SBIC VII, L.P.
By: Zero Stage Capital SBIC VII Associates, L.P., its General Partner
By: /s/ Xxxx Xxxxxx
Name: Xxxx Xxxxxx
Title: Managing Director & CEO
IMPAX ENVIRONMENTAL MARKETS PLC
By: /s/ Xxxxx Jenkyou-Xxxxx
Name: Xxxxx Jenkyou-Xxxxx
Title: Investment Manager
XXXXXXX XXXXX NEW ENERGY TECHNOLOGY PLC
By: /s/ Xxxxxx Xxxxxx
Name: Xxxxxx Xxxxxx
Title: Company Secretary
By: /s/ Xxxxx Xxxxxxxxx
Name: Xxxxx Xxxxxxxxx
Title: Director
MLIIF NEW ENERGY FUND
By: /s/ Xxxxxxx Xxxxx
Name: Xxxxxxx Xxxxx
Title: Director
By: /s/ Xxxxx Xxxxxxxxx
Name: Xxxxx Xxxxxxxxx
Title: Director
PNE INVEST LIMITED
By: /s/ Xxxxx Xxxxxxxxx
Name: Xxxxx Xxxxxxxxx
Title: Chairman of the Board of Directors
By: /s/ Xxxxxxx Xxxxx
Name: Xxxxxxx Xxxxx
Title: Director
ODYSSEY FUND
By: Rockefeller & Co., Inc., its Investment Manager
By: /s/ Xxxxxxx X. Xxxxx
Name: Xxxxxxx X. Xxxxx Title: Chief Investment Officer
XXX PRIVATE EQUITY ENERGY FUND LP
By: XXX Equity Partners Limited, its General Partner
By: /s/ Xxxx Domanig
Name: Xxxx Domanig
Title: Director
XXX SUSTAINABILITY PRIVATE EQUITY LP
By: XXX Equity Partners Limited, its General Partner
By: /s/ Xxxx Domanig
Name: Xxxx Domanig
Title: Director
XXX XXXXX ENERGY
By: /s/ Xxxxxx Xxxxxxxxx
Name: Xxxxxx Xxxxxxxxx
Title: Director
[Signature Page - Registration Rights Agreement]