AMENDMENT NO. 1 TO THIRD AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
Exhibit 4.3
AMENDMENT NO. 1
TO
THIRD AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
This Amendment No. 1 (this “Amendment”) to that certain Third Amended and Restated Registration Rights Agreement, dated as of August 31, 2010, by and among Mascoma Corporation, a Delaware corporation (the “Corporation”), and the Investors and Key Stockholders named therein (the “Registration Rights Agreement”), is made as of January 7, 2011, by and among the Corporation, Diamond Alternative Energy, LLC, a Delaware limited liability company (“Valero”), and the holders of Registrable Securities (as defined in the Registration Rights Agreement) listed on the signature pages hereto (“Rights Holders”).
WHEREAS, in connection with the Corporation’s sale and issuance of shares of the Corporation’s Series D Preferred Stock, par value $0.001 per share (the “Series D Preferred Stock”) and warrant to purchase shares of Series D Preferred Stock to Valero pursuant to that certain Series D Preferred Stock and Warrant Purchase Agreement, by and between the Corporation and Valero, dated as of even date herewith (the “Valero Purchase Agreement”), the Rights Holders desire to amend the Registration Rights Agreement as set forth in this Amendment, and consent to the grant of registration rights to Valero through the addition of Valero as a party to the Registration Rights Agreement in the capacity of an Investor;
WHEREAS, Section 14 of the Registration Rights Agreement provides that the Corporation may not enter into an agreement with any holder or prospective holder of any securities of the Corporation that would grant such holder the right to demand registration of shares of the Corporation’s capital stock, or to include such shares in a registration statement that would reduce the number of shares includable by the Holders (as defined in the Registration Rights Agreement) without the consent of the Holders of at least a majority of Registrable Securities held by the Holders (the “Requisite Holders”);
WHEREAS, Section 17(c) of the Registration Rights Agreement provides that the Registration Rights Agreement may be amended with the written consent of the Corporation and the holders of at least a majority in interest of voting power of the then outstanding Registrable Securities issued (collectively, the “Requisite Rights Holders,” and together with the Requisite Holders, the “Requisite Parties”); and
WHEREAS, the Rights Holders party hereto hold a sufficient number of Registrable Securities to constitute the Requisite Parties.
NOW, THEREFORE, in consideration of the premises and the mutual covenants contained in this Amendment and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:
1. Consent to Addition of Valero to the Registration Rights Agreement. The Requisite Parties hereby consent to the addition of Valero as a party to the Registration Rights Agreement in the capacity of an Investor, and agree that Valero shall have all of the rights granted to an Investor in the Registration Rights Agreement, including without limitation, demand registration rights and piggyback registration rights with respect to its Registrable
Securities. Valero, by its signature to this Amendment, hereby agrees that it is becoming a party to the Registration Rights Agreement, as amended hereby, in the capacity of an Investor.
2. Certain Defined Terms. All capitalized terms used herein and not defined herein shall have the meanings given to such terms in the Registration Rights Agreement, as amended hereby.
3. Amendment to Registration Rights Agreement. Section 17(e) of the Registration Rights Agreement is amended and restated in its entirety to read as set forth below:
“All notices hereunder shall be given in accordance with Section 4.03 of the Note Conversion Agreement, Section 7.09 of the Share Purchase Agreement, or Section 13 of the Series D Preferred Stock and Warrant Purchase Agreement, dated as of January 7, 2011, by and between the Corporation and Diamond Alternative Energy, LLC, a Delaware limited liability company, as applicable.”
4. Governing Law. This Amendment shall be governed by, and construed and enforced in accordance with, the substantive laws of the State of Delaware without regard to its principles of conflicts of laws.
5. Counterparts. This Amendment may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.
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IN WITNESS WHEREOF, the undersigned parties have executed this Amendment No. 1 to Third Amended and Restated Registration Rights Agreement as an instrument under seal as of the date first written above.
MASCOMA CORPORATION | ||||
By: | /s/ Xxxxxxx X. Xxxxx | |||
Name: | Xxxxxxx X. Xxxxx | |||
Title: | Chief Executive Officer |
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DIAMOND ALTERNATIVE ENERGY, LLC | ||||
By: | /s/ S. Xxxxxx Xxxxxxx | |||
Name: | S. Xxxxxx Xxxxxxx | |||
Title: | Executive Vice President |
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ATLAS VENTURE FUND VII, L.P. | ||
By: | Atlas Venture Associates VII, L.P., Its General Partner | |
By: | Atlas Venture Associates VII, Inc., Its General Partner | |
By: | /s/ Xxxxxxx Xxxxxxxx | |
Name: | Xxxxxxx Xxxxxxxx | |
Title: | VP |
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BLUESTEM GROWTH & INCOME FUND III, LLC
By: Bluestem Capital Company, LLC | ||
By: | /s/ Xxxxx Xxxxx | |
Name: | Xxxxx Xxxxx | |
Title: | CFO |
BLUESTEM SELECT OPPORTUNITIES FUND, LLC
By: Bluestem Capital Company, LLC | ||
By: | /s/ Xxxxx Xxxxx | |
Name: | Xxxxx Xxxxx | |
Title: | CFO |
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FLAGSHIP VENTURES FUND 2004, L.P. | ||
By: | its General Partner Flagship Ventures General Partner LLC | |
By: | /s/ [ILLEGIBLE] | |
Manager |
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GC ENTREPRENEURS FUND IV, L.P. | ||
By General Catalyst Partners IV, L.P., | ||
its General Partner | ||
By General Catalyst XX XX, LLC, | ||
its General Partner | ||
By: | /s/ Xxxxxxx X. Xxxxxxxxxx | |
Name: | Xxxxxxx X. Xxxxxxxxxx | |
Title: | Member and Chief Financial Officer | |
GENERAL CATALYST GROUP IV, L.P. | ||
By General Catalyst Partners IV, L.P., | ||
its General Partner | ||
By General Catalyst XX XX, LLC, | ||
its General Partner | ||
By: | /s/ Xxxxxxx X. Xxxxxxxxxx | |
Name: | Xxxxxxx X. Xxxxxxxxxx | |
Title: | Member and Chief Financial Officer |
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BLACKROCK INVESTMENT MANAGEMENT (UK) LIMITED, by its nominee, HARE & CO. |
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By: | /s/ XXXXXX XXXXXXXX |
DATE: | 06 JANUARY 2011 | |||||
Name: | XXXXXX XXXXXXXX | |||||||
Title: | FUND MANAGER - BLACKROCK | |||||||
/s/ Poppy Allonby |
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POPPY ALLONBY | ||||||||
FUND MANAGER - BLACKROCK |
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KPCB HOLDINGS, INC. | ||
By: | /s/ XXXX XXXXXX | |
Name: | XXXX XXXXXX | |
Title: | PRESIDENT |
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MALAYSIAN LIFE SCIENCES CAPITAL FUND | ||
By: | /s/ Xxxxx Xxxx | |
Name: | Xxxxx Xxxx | |
Title: | Co-Chairman |
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MPC INVESTMENT LLC | ||
By: | /s/ Xxxxxxxx X. Xxxx | |
Name: | Xxxxxxxx X. Xxxx | |
Title: | Manager | |
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XXXXX XXXXXXX & CO. | ||
By: | /s/ Xxxxxx X. Xxxxx | |
Name: | Xxxxxx X. Xxxxx | |
Title: | Managing Director |
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SUNOPTA INC. | ||
By: | /s/ Xxxxxx X Xxxxxxx 5/1/11 | |
Name: | Xxxxxx X Xxxxxxx | |
Title: | President & CEO |
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VPVP CLEANTECH HOLDINGS 2006, L.L.C. | ||
By: | VantagePoint Venture Partners 2006 (Q), L.P., Its Sole Member | |
By: | VantagePoint Venture Associates 2006, L.L.C., Its Managing Member | |
By: | /s/ Xxxx X. Xxxxxxx | |
Name: | Xxxx X. Xxxxxxx | |
Title: | Managing Member | |
VANTAGEPOINT CLEANTECH PARTNERS, L.P. | ||
By: | VantagePoint CleanTech Associates, L.L.C., Its General Partner | |
By: | /s/ Xxxx X. Xxxxxxx | |
Name: | Xxxx X. Xxxxxxx | |
Title: | Managing Member |
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GENERAL MOTORS VENTURES LLC | ||
By: | /s/ Xxx Xxxxxxxx | |
Name: | Xxx Xxxxxxxx | |
Title: | President |
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XXXXXX VENTURES I, L.P. | ||
By: | Xxxxxx Ventures Associates I, LLC, a Delaware limited liability company and general partner of Xxxxxx Ventures I, LP | |
By: | VK Services, LLC, a Delaware limited liability company and manager of Xxxxxx Ventures Associates I, LLC | |
By: | /s/ Xxxxx Xxxxxx | |
Name: | Xxxxx Xxxxxx | |
Title: | Member |
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PINNACLE VENTURES II-A, L.P. | ||
PINNACLE VENTURES II-B, L.P. | ||
PINNACLE VENTURES II-C, L.P. | ||
PINNACLE VENTURES II-R, L.P. | ||
By: | Pinnacle Ventures Management II, L.L.C., Their general partner | |
By: |
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Name: | Xxxxxx X. Xxxxxx | |
Title: | Chief Financial Officer |
PINNACLE VENTURES EQUITY FUND I AFFILIATES, L.P.
PINNACLE VENTURES EQUITY FUND I, L.P.
PINNACLE VENTURES EQUITY FUND I-O, L.P.
By: | Pinnacle Ventures Equity Management I, L.L.C., Their general partner |
By: |
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Name: | Xxxxxx X. Xxxxxx | |
Title: | Chief Financial Officer |
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R. Xxxxxx Xxxxxxxx |
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Xxxxxxx X. Xxxxxx |
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XXXXXXX & CO. | ||
C/O CITIBANK CANADA, SECURITIES CAGE | ||
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Name: | ||
Title: |
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XXXXX BIO-ENERGY, LLC | ||
By: |
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Name: | ||
Title: |
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XXXXX ENGINEERING CORPORATION | ||
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Title: |
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Xxxxxxx X. Xxxxxxxx |
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XXXXX INVESTMENTS LIMITED 99480027 |
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XXXXX INVESTMENTS LIMITED 99480072 |
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Xxxxx X. Xxxxxx |
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Xxxxx X. Xxxxxxxx |
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CANACCORD GENUITY CORP. | ||
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Name: | ||
Title: |
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CANACCORD GENUITY CORPORATION
ITF XXXXX X XXXXXXXX AC# 139-264S-4 (RRSP)
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Name: | ||
Title: | ||
CANACCORD GENUITY CORPORATION ITF XXXXX X XXXXXXXX AC# 139-264M-2 | ||
By: |
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Name: | ||
Title: |
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CRM HOLDINGS, LLC | ||
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Title: |
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Xxxxx Xxxx |
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XXXXX XXXX AND XXX X. XXXXXXXXX |
(as joint tenants with right of survivorship) |
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Xxxxx Xxxx |
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Xxx X. Xxxxxxxxx |
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Xxxx X. Xxxxxx |
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Xxxx Xxxxxxxx |
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XXXXX, INC. | ||
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JAYVEE & CO. INVF0004002 | ||||
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c/s | ||||
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JAYVEE & CO. INVF0013002 | ||||
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c/s | ||||
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JAYVEE & CO. on behalf of MACKENZIE FINANCIAL CORP. | ||||
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c/s | ||||
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Xxxxx Xxxxxx |
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LOWE’S LTD., L.P. | ||
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Name: | ||
Title: |
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PURDUE RESEARCH FOUNDATION | ||
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Name: | ||
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Xxxxxx X. Xxxxx |
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ROCH ENTERPRISES, L.P. | ||
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Name: | ||
Title: |
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Xxx Xxxxxx |
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STACK, LLC | ||
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Name: | ||
Title: |
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Xxxxx Xxxxxxxx |
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Xxxxx X. Xxxxx |
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Xxxx Xxxxxx |
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Xxxxx Xxxxx |
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WILDSTOIC LLC | ||
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XXXXXX INVEST LTD. | ||
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TRIMARK RESOURCES FUND
(formerly, TRIMARK CANADIAN RESOURCES FUND),
by its Manager, INVESCO TRIMARK LTD.
(formerly AIM FUNDS MANAGEMENT INC.)
By: |
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Name: | Xxxxxxx Xxxxxxx | |||
Title: | VP & Chief Financial Officer, Funds | |||
c/s | ||||
By: |
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Name: | Xxxxx X. Xxxxxx | |||
Title: | Chief Admin Officer, NA Retail |
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