EXHIBIT 10.2
VOTING AGREEMENT
This VOTING AGREEMENT, dated March 21, 2003 (this
"Agreement"), by and among Evergreen Solar, Inc., a Delaware corporation (the
"Company") and each of the Stockholders listed on the signature pages hereof
(each, a "Stockholder" and, collectively, the "Stockholders"). Unless otherwise
provided in this Agreement, capitalized terms used herein have the respective
meanings given to them in that certain Stock and Warrant Purchase Agreement,
dated as of even date herewith (the "Purchase Agreement"), among 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 ("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
Fund ("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 "Purchasers").
WHEREAS, pursuant to the Purchase Agreement, the Company has
agreed to issue and sell (i) to the Purchasers, an aggregate of [________]
shares of Series A Convertible Participating Preferred Stock, par value $0.01
per share, of the Company (the "Series A Preferred Stock") and (ii) to Beacon,
the Beacon Warrant;
WHEREAS, the Third Amended and Restated Certificate of
Incorporation of the Company must be amended (i) to increase the amount of the
Company's authorized preferred stock, so that a sufficient number of shares will
be available for issuance of the Series A Preferred Stock and (ii) to increase
the amount of the Company's authorized common stock, par value $0.01 per share
(the "Common Stock"), so that a sufficient number of shares will be available
for issuance upon conversion of the Series A Preferred Stock and the exercise of
the Beacon Warrant ((i) and (ii) of this paragraph are collectively referred to
herein as the "Charter Amendment");
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WHEREAS, the Purchase Agreement contemplates that on or before
the Closing Date, the Board of Directors of the Company (the "Board") shall be
comprised of eight (8) directors and the Company shall have caused (i) one
representative designated by Perseus, (ii) one representative designated by Nth
Power, (iii) one representative designated by Rockport, (iv) one representative
designated by Micro-Generation and (v) one representative designated by CDP to
be elected to the Board by the stockholders of the Company at the Stockholders
Meeting (the "Director Elections), unless the appointment of such designees is
accomplished by resolution of the Board outside of the Stockholders Meeting;
WHEREAS, the rules and regulations of the Nasdaq National
Market ("NASDAQ") will limit or prohibit (i) the issuance of the Series A
Preferred Stock (the "Preferred Stock Issuance") and (ii) the issuance of shares
of Common Stock upon conversion of the Series A Preferred Stock and exercise of
the Beacon Warrant (the "Common Stock Issuance") unless and until the
stockholders of the Company have voted to approve such Preferred Stock Issuance
and Common Stock Issuance as required by NASDAQ (together with the stockholder
vote to approve the Charter Amendment and the Director Elections, the
"Stockholder Vote");
WHEREAS, it is a condition to the Purchasers' obligations
under the Purchase Agreement that the Company and the Stockholders enter into
this Agreement for the purpose of setting forth the terms and conditions
pursuant to which the Stockholders will vote all their (i) shares of Common
Stock now owned or that may hereafter be acquired (whether upon the exercise of
warrants or options or otherwise) by such Stockholder (the "Owned Stock") and
(ii) options and rights to purchase Common Stock and any other shares of voting
capital stock of the Company now owned or that may hereafter be acquired by such
Stockholder (collectively with the Owned Stock, the "Shares"); and
WHEREAS, in order to induce the Purchasers to enter into the Purchase
Agreement, (i) the Purchasers have requested that the Stockholders, and such
Stockholders have agreed to, enter into this Agreement with respect to all of
the Shares that such Stockholders beneficially own and (ii) the Stockholders and
the Company acknowledge that each of the Purchasers is a third party beneficiary
of this Agreement.
NOW, THEREFORE, for good and valuable consideration the receipt and
sufficiency of which is hereby acknowledged, the parties hereto agree as
follows:
ARTICLE 1
VOTING AGREEMENT; GRANT OF PROXY
Section 1.01. Voting Agreement. Each Stockholder hereby agrees that
during the time this Agreement is in effect to vote all Shares that such
Stockholder is entitled to vote to approve (i) the Charter Amendment, (ii) the
Director Elections, (iii) the
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Preferred Stock Issuance, (iv) the Common Stock Issuance and (v) any other
matters relating to the transactions contemplated by the Purchase Agreement
requiring a stockholder vote, at any meeting of the stockholders of the Company,
and at any adjournment thereof, and on any other occasion in respect of which
the consent of such Stockholder with respect to its Shares may be given or may
be requested or solicited by the Company or the Purchasers, whether at a meeting
or pursuant to the execution of a written consent or otherwise, for all purposes
in connection with any of the foregoing matters. Each Stockholder hereby agrees
that during the time this Agreement is in effect it will not vote any Shares in
favor of the approval of any corporate action the consummation of which would
frustrate the purposes, or prevent or delay the consummation, of the
transactions contemplated by the Purchase Agreement, including the issuance of
the Series A Preferred Stock and the Beacon Warrant.
Section 1.02. Irrevocable Proxy. Each Stockholder hereby revokes any
and all previous proxies granted with respect to its Shares. By entering into
this Agreement, each Stockholder hereby grants a proxy appointing each of Xxxx
X. Xxxxxx and Xxxxxxx X. Xxxxxxxxx (each, an "Attorney-in-Fact") as such
Stockholder's attorney-in-fact and proxy, with full power of substitution, for
and in such Stockholder's name, to vote, express, consent or dissent, or
otherwise to utilize such voting power solely in the manner contemplated by
Section 1.01 above as either Attorney-in-Fact or its proxy or substitute shall,
in such Attorney-in-Fact's sole discretion, deem proper with respect to such
Stockholder's Shares. The proxy granted by each Stockholder pursuant to this
Article 1 is coupled with an interest, is irrevocable and is granted in
consideration of the Purchasers entering into the Purchase Agreement and
incurring certain related fees and expenses. The proxy granted by each
Stockholder shall be automatically revoked upon termination of this Agreement in
accordance with its terms.
ARTICLE 2
REPRESENTATIONS AND WARRANTIES OF STOCKHOLDERS
Each Stockholder, severally and not jointly, represents and warrants to
the Company and the Purchasers that:
Section 2.01. Authorization; Capacity. The execution, delivery and
performance by such Stockholder (if not an individual) of this Agreement and the
consummation by such Stockholder of the transactions contemplated hereby are
within the powers (corporate or otherwise) of such Stockholder and have been
duly authorized by all necessary action (corporate or otherwise) on the part of
such Stockholder. Such Stockholder (if an individual) has the legal capacity to
enter into this Agreement. This Agreement constitutes a valid and binding
Agreement of such Stockholder.
Section 2.02. Non-contravention. The execution, delivery and
performance by such Stockholder of this Agreement and the consummation of the
transactions
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contemplated hereby do not and will not (i) violate the constituent
documents, if any, of such Stockholder, (ii) violate any applicable law, rule,
regulation, judgment, injunction, order or decree or (iii) require any consent
or other action by any person under, constitute a default under, or give rise to
any right of termination, cancellation or acceleration or to a loss of any
benefit to which such Stockholder is entitled under any provision of any
agreement or other instrument binding on such Stockholder.
Section 2.03. Ownership Of Shares. Such Stockholder is, as of the date
hereof, the record and beneficial owner of the Shares set forth opposite the
name of such Stockholder on Schedule 2.03 hereto, free and clear of any lien and
any other limitation or restriction (including any restriction on the right to
vote or otherwise dispose of such Shares). None of the Shares is subject to any
voting trust or other agreement or arrangement with respect to the voting of
such Shares. Except for the Shares set forth opposite the name of such
Stockholder on Schedule 2.03 hereto, as of the date hereof, such Stockholder
does not beneficially own any (i) shares of capital stock or voting securities
of the Company, (ii) securities of the Company convertible into or exchangeable
for shares of capital stock or voting securities of the Company or (iii) options
or other rights to acquire from the Company any capital stock, voting securities
or securities convertible into or exchangeable for capital stock or voting
securities of the Company.
Section 2.04. Finder's Fees. No investment banker, broker, finder or
other intermediary is entitled to a fee or commission from any person other than
such Stockholder in respect of this Agreement based upon any arrangement or
agreement made by or on behalf of such Stockholder.
ARTICLE 3
COVENANTS OF STOCKHOLDERS
Each Stockholder hereby covenants and agrees that:
Section 3.01. No Proxies for or Encumbrances on Shares. Except
pursuant to the terms of this Agreement, during the term of this Agreement, such
Stockholder shall not directly or indirectly, (i) grant any proxies or enter
into any voting trust or other agreement or arrangement with respect to the
voting of any of its Shares or (ii) sell, assign, transfer, encumber or
otherwise dispose of, or enter into any contract, option or other arrangement or
understanding with respect to the direct or indirect sale, assignment, transfer,
encumbrance or other disposition of, any of its Shares, except in connection
with prearranged sales under 10b-5 plans.
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ARTICLE 4
MISCELLANEOUS
Section 4.01. Notices. All notices, demands and other communications
provided for or permitted hereunder shall be made in writing and shall be by
registered or certified first-class mail, return receipt requested, telecopier,
courier service or personal delivery:
if to the Company:
Evergreen Solar, Inc.
000 Xxxxx Xxxx Xxxxxx
Xxxxxxxx, XX 00000
Telecopy: (000) 000-0000
Attention: Xxxx X. Xxxxxx
with a copy to:
Xxxxx, Xxxxxxx & Xxxxxxxxx, LLP
000 Xxxx Xxxxxx
Xxxxxx, XX 00000
Telecopy: (000) 000-0000
Attention: Xxxxxxxx X. Gold, Esq.
and
the address set forth under each Purchaser's name on
Schedule 2.1 of the Purchase Agreement
and
Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx LLP
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000-0000
Telecopy: (000) 000-0000
Attention: Xxxxx X. Xxxxxxxxx, Esq.
if to the Stockholders:
to the address set forth under each Stockholder's name on
Schedule 2.03 hereto
with a copy to:
the address set forth under each Purchaser's name on
Schedule 2.1 of the Purchase Agreement
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and
Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx LLP
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000-0000
Telecopy: (000) 000-0000
Attention: Xxxxx X. Xxxxxxxxx, Esq.
All such notices, demands and other communications shall be deemed to
have been duly given when delivered by hand, if personally delivered; when
delivered by courier, if delivered by commercial courier service; five (5)
Business Days after being deposited in the mail, postage prepaid, if mailed; and
when receipt is mechanically acknowledged, if telecopied. Any party may by
notice given in accordance with this Section 4.01 designate another address or
Person for receipt of notices hereunder.
Section 4.02. Successors and Assigns; Third Party Beneficiaries. The
provisions of this Agreement shall be binding upon and inure to the benefit of
the parties hereto and their respective successors and assigns; provided that no
party may assign, delegate or otherwise transfer any of its rights or
obligations under this Agreement without the consent of the other parties
hereto. No provision of this Agreement is intended to confer upon any person,
other than the parties hereto and the Purchasers, any rights or remedies
hereunder. The parties hereto acknowledge that each of the Purchasers is a third
party beneficiary of this Agreement and shall be entitled to enforce the
provisions hereof as if it were a party hereto.
Section 4.03. Amendments; Termination. Any provision of this Agreement
may be amended or waived if, but only if, such amendment or waiver is in writing
and is signed, in the case of an amendment, by each party to this Agreement and
the Purchasers or in the case of a waiver, by the party against whom the waiver
is to be effective and the Purchasers. This Agreement shall terminate upon the
earlier of (i) the termination of the Purchase Agreement in accordance with its
terms and (ii) the occurrence of the Stockholder Vote.
Section 4.04. Counterparts. This Agreement may be executed in any
number of counterparts and by the parties hereto in separate counterparts, each
of which when so executed shall be deemed to be an original and all of which
taken together shall constitute one and the same agreement. The parties hereto
confirm that any facsimile copy of another party's executed counterpart of this
Agreement (or its signature page thereof) will be deemed to be an executed
original thereof.
Section 4.05. Headings. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning hereof.
Section 4.06. 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
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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.
Section 4.07. Severability. If any one or more of the provisions
contained herein, or the application thereof in any circumstance, is held
invalid, illegal or unenforceable in any respect for any reason, the validity,
legality and enforceability of any such provision in every other respect and of
the remaining provisions hereof shall not be in any way impaired, unless the
provisions held invalid, illegal or unenforceable shall substantially impair the
benefits of the remaining provisions hereof.
Section 4.08. Rules of Construction. Unless the context otherwise
requires, references to sections or subsections refer to sections or subsections
of this Agreement.
Section 4.09. Entire Agreement. This Agreement is intended by the
parties as a final expression of their agreement and intended to be a complete
and exclusive statement of the agreement and understanding of the parties hereto
with respect to the subject matter contained herein. There are no restrictions,
promises, representations, warranties or undertakings with respect to the
subject matter contained herein, other than those set forth or referred to
herein. This Agreement supersedes all prior agreements and understandings among
the parties with respect to such subject matter.
Section 4.10. Further Assurances. Each Stockholder will execute and
deliver, or cause to be executed and delivered, all further documents and
instruments and use its best efforts to take, or cause to be taken, all actions
and to do, or cause to be done, all things necessary, proper or advisable under
applicable laws and regulations, to consummate and make effective the
transactions contemplated by this Agreement.
Section 4.11. Expenses. Except as otherwise provided in the Purchase
Agreement, all costs and expenses incurred in connection with this Agreement
shall be paid by the party incurring such cost or expense.
Section 4.12. Specific Performance. Each party hereto acknowledges
that the remedies at law of the other parties for a breach or threatened breach
of this Agreement would be inadequate and, in recognition of this fact, any
party to this Agreement or the Purchasers, without posting any bond, and in
addition to all other remedies which may be available, shall be entitled to
obtain equitable relief in the
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form of specific performance, a temporary restraining order, a temporary or
permanent injunction or any other equitable remedy which may then be available.
The rights and remedies herein provided shall be cumulative and not exclusive of
any rights or remedies provided by law.
[Remainder of page intentionally left blank]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the day and year first above written.
COMPANY:
EVERGREEN SOLAR, INC.
By: /s/ Xxxx X. Xxxxxx
---------------------------------
Name: Xxxx X. Xxxxxx
Title: President and
Chief Executive Officer
STOCKHOLDERS:
/s/ Xxxxxxx X. Xxxxxxxxx
-------------------------------------
Xxxxxxx X. Xxxxxxxxx
/s/ Xxxx X. Xxxxxx
-------------------------------------
Xxxx X. Xxxxxx
/s/ Xxxxxx X. Xxxx, Xx.
-------------------------------------
Xxxxxx X. Xxxx, Xx.
/s/ Xxxx Xxxxxx
-------------------------------------
Xxxx Xxxxxx
00
HANOKA EVERGREEN LIMITED
PARTNERSHIP
By: /s/ Xxxx Xxxxxx
-----------------------------------
Name: Xxxx Xxxxxx
Title: V.P.--C.T.O.
XXXXXXXX 1995 TRUST
By: /s/ Xxxxxxxx 1995 Trust,
Xxxxx Xxxxxxxx, Trustee
-----------------------------------
Name: Xxxxx Xxxxxxxx
Title: Trustee
NTH POWER TECHNOLOGIES FUND LP
By: Nth Power LLC, its General Partner
By: /s/ Xxx Xxxxxxxx
-----------------------------------
Name: Xxx Xxxxxxxx
Title: Managing Director
NTH POWER TECHNOLOGIES FUND I, LP
By: Nth Power LLC, its General Partner
By: /s/ Xxx Xxxxxxxx
-----------------------------------
Name: Xxx Xxxxxxxx
Title: Managing Director
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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
UTECH CLIMATE CHALLENGE FUND, L.P.
By: Arete Climate Chellenge Partners, LLC
By: /s/ Xxxxxx X. Xxxx, Xx.
----------------------------------
Name: Xxxxxx X. Xxxx, Xx.
Title: Managing Member
UTECH VENTURE CAPITAL CORPORATION
By: /s/ Xxxxxx X. Xxxx, Xx.
----------------------------------
Name: Xxxxxx X. Xxxx, Xx.
Title: President
