THIS REGISTRATION RIGHTS AGREEMENT, dated as of September 30, 1999
(this "Agreement"), is entered into by and among ACCESS POWER, INC., a Florida
corporation (the "Company") and BAMBOO INVESTORS LLC, a Delaware limited
partnership (the "Purchaser").
W I T N E S S E T H:
WHEREAS, pursuant to a Securities Purchase Agreement, dated as of
September 30, 1999, among the Purchaser, the Company and certain other parties
(the "Securities Purchase Agreement"), the Company has agreed to issue and sell
to the Purchaser $1,000,000 principal amount of the Company's 6% Convertible
Debentures due 2001 (the "Debentures"), Warrants to purchase 200,000 shares of
Common Stock of the Company (the "Common Stock Warrants") and Warrants (the
"Special Warrants" and, together with the Debentures and the Common Stock
Warrants, the "Securities") to purchase $1,000,000 principal amount of the
Company's 6% Convertible Debentures due 2001 (the "Warrant Debentures") and
Warrants (the "Special Common Stock Warrants") to purchase 200,000 Shares of
Common Stock.
WHEREAS, pursuant to the terms of the Special Warrants, upon exercise
of the Special Warrants, the Company will issue Warrant Debentures and Special
Common Stock Warrants to the Purchaser.
WHEREAS, pursuant to the terms of the Debentures, the Warrant
Debentures, the Special Common Stock Warrants, and the Common Stock Warrants,
(i) upon the conversion of, and in lieu of interest payments on, the Debentures
and the Warrant Debentures and (ii) upon exercise of the Common Stock Warrants
and Special Common Stock Warrants, the Company will issue shares of the
Company's common stock, par value $.001 per share (the "Common Stock") (the
shares of Common Stock issued or issuable to the Purchaser upon the conversion
of, or in lieu of interest payments on, the Debentures and the Warrant
Debentures or upon the exercise of the Common Stock Warrants and Special Common
Stock Warrants are collectively referred to herein as the "Shares") to the
Purchaser.
WHEREAS, to induce the Purchaser to execute and deliver the Securities
Purchase Agreement, the Company has agreed to provide certain registration
rights under the Securities Act of 1933, as amended (the "Securities Act"), and
applicable state securities laws.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants contained herein and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the Company and the
Purchaser hereby agree as follows:
1. DEFINITIONS.
(a) As used in this Agreement, the following terms shall have the
following meanings:
(i) "Minimum Conversion Shares" on any date means a number of
shares equal to the greater of (x) 10,982,000 or (y) at least two (2) times the
sum of: (a) the number of shares of Common Stock that are issuable upon
conversion of the Debentures on such date, without regard to any limitation on
any holder's ability to convert the Debentures, (b) the number of shares of
Common Stock that would be issuable upon conversion of the Warrant Debentures on
such date, without regard to whether the Special Warrants have been exercised or
any limitation on any holder's ability to convert the Warrant Debentures, (c)
the number of shares of Common Stock issuable in lieu of interest payments on
the Debentures and the Warrant Debentures assuming that all such interest is
paid in shares of Common Stock and, if the Special Warrants have not been
exercised on or prior to such date, assuming that the Special Warrants were
exercised and the Warrant Debentures were issued on such date and (d) the number
of shares of Common Stock issuable upon exercise of the Common Stock Warrants
and Special Common Stock Warrants, without regard to whether the Special
Warrants have been exercised or any limitation on any holder's ability to
exercise the Special Common Stock Warrants.
(ii) "Register," "Registered," and "Registration" refer to a
registration effected by preparing and filing one or more Registration Statement
or Statements in compliance with the Securities Act and pursuant to Rule 415
under the Securities Act or any successor rule providing for offering securities
on a continuous basis ("Rule 415"), and the declaration or ordering of
effectiveness of such Registration Statement by the Securities and Exchange
Commission (the "Commission").
(iii) "Registrable Securities" means collectively, the Shares,
the Common Stock Warrants and the Special Common Stock Warrants.
(iv) "Registration Statement" means a registration statement
of the Company under the Securities Act.
Capitalized terms used herein and not otherwise defined herein shall
have the meanings set forth in the Securities Purchase Agreement, the
Debentures, the Warrant Debentures or the Common Stock Warrants, as the case may
be.
2. REGISTRTAION.
(a) MANDATORY REGISTRATION. The Company shall prepare and, as soon as
practicable but in no event later than thirty (30) days after the Closing Date
(the "Required Filing Date"), file with the Commission a Registration Statement
on Form SB-2, or an amendment to any pending Registration Statement on Form SB-2
of the Company, covering resales of (a) the Common Stock Warrants the Special
Common Stock Warrants and (b) the Minimum Conversion Shares on the filing date.
In the event that Form SB-2 is unavailable for such a registration, the Company
shall use such
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other form as is available for such a registration. Such Registration Statement
or amended Registration Statement, as the case may be, shall state that, in
accordance with Rule 416 under the Securities Act, it also covers such
indeterminate number of additional Shares as may become issuable upon conversion
of the Debentures or Warrant Debentures or exercise of the Common Stock Warrants
or Special Common Stock Warrants (i) to prevent dilution resulting from stock
splits, stock dividends or similar transactions and (ii) to the extent
consistent with the interpretations of the Commission of such rule at such time,
resulting from any adjustment in the applicable Conversion Price of the
Debentures and Warrant Debentures or the Exercise Price of the Common Stock
Warrants or Special Common Stock Warrants. If for any 10 business days during
any 20 consecutive business day period the Minimum Conversion Shares exceed the
total number of Shares so registered, the Company shall (i) if such Registration
Statement has not been declared effective by the Commission at that time and if
the Company does not reasonably believe that it will cause a delay in going
effective, amend the Registration Statement filed by the Company pursuant to the
preceding portions of this paragraph, to register all of such Minimum Conversion
Shares, or (ii) in all other instances, file with the Commission an additional
Registration Statement on SB-2 (or, in the event that Form SB-2 is unavailable
for such a registration, on such other form as is available) to register all of
such Minimum Conversion Shares that have not already been so registered. The
Company shall use its best efforts to cause any such Registration Statement or
amended Registration Statement, as the case may be, to become effective within
the earliest to occur of (i) ninety (90) days following the Closing Date; (ii)
if the Commission elects not to conduct a review of the Registration Statement,
the date which is five business days after the date upon which either the
Company or its counsel is so notified, whether orally or in writing; or (iii) if
the Registration Statement is reviewed by the Commission, the date which is five
business days after the date upon which the Company or its counsel is notified
by the Commission, whether orally or in writing, that the Commission has no
further comments with respect to the Registration Statement, or that the
Registration Statement may be declared effective. The earliest of such dates is
referred to herein as the "Required Effective Date." Notwithstanding the use of
the terms "Required Filing Date" and "Required Effective Date" herein, the
Company shall at all times use its best efforts to file each required
Registration Statement or amendment to a Registration Statement as soon as
possible after the Closing Date or after the date the Company becomes obligated
to file such Registration Statement or amendment, as the case may be, and to
cause each such Registration Statement or amendment to become effective as soon
as possible thereafter. Except as set forth on Schedule 2(a), no securities of
the Company other than the Registrable Securities shall be included in any such
Registration Statement. The Company shall keep each Registration Statement
effective pursuant to Rule 415 at all times until such date as is the earlier of
(i) the date on which all of the Registrable Securities have been sold (ii) the
date on which the Registrable Securities (in the opinion of counsel to the
Purchaser) may be immediately sold without restriction (including without
limitation as to volume by each holder thereof) without registration under the
Securities Act and (iii) two years from the effective date of such Registration
Statement (the "Registration Period").
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(b) PAYMENTS BY THE COMPANY.
(i) (A) If the Registration Statement covering the Registrable
Securities is not filed in proper form with the Commission on or prior to the
Required Filing Date, (B) if the Registration Statement covering the Registrable
Securities is not effective on or prior to the Required Effective Date, (C) if
the number of Shares reserved by the Company for issuance shall be insufficient
for issuance upon the conversion of the Debentures and the exercise of the
Common Stock Warrants and, at any time after the 90th day following the Closing
Date, the number of Shares reserved by the Company for issuance shall be
insufficient for issuance upon the conversion of the Debentures and the Warrant
Debentures and the exercise of the Common Stock Warrants and the Special Common
Stock Warrants, or (D) upon the occurrence of a Blackout Event (as described in
Section 3(f) or Section 3(g) below) (each of the events described in clauses (A)
through (D) of this paragraph are referred to herein as a "Registration
Default"), the Company will make payments to the Purchaser in such amounts and
at such times as shall be determined pursuant to this Section 2(b).
(ii) The amount (the "Periodic Amount") to be paid by the
Company to the Purchaser for each thirty (30) day period, or portion thereof,
during which a Registration Default shall be in effect (each such period, a
"Default Period") shall be equal to two percent (2%) of the sum of (a) the
principal amount of Debentures and Warrant Debentures outstanding and (b) the
principal amount of Debentures and Warrant Debentures converted into shares of
Common Stock (the "Purchase Price"); PROVIDED, with respect to any Default
Period during which the relevant Registration Defaults shall have been cured,
the Periodic Amount shall be PRO RATED for the number of days during such period
during which the Registration Defaults were pending; and PROVIDED FURTHER, that
the payment of such Periodic Amounts shall not relieve the Company from its
continuing obligations to register the Registrable Securities pursuant to
Section 2(a).
(iii) Each Periodic Amount shall be payable by the Company, in
cash or other immediately available funds, to the Purchaser on the last day of
each month during which a Registration Default occurred or was continuing,
without demand therefor by the Purchaser. If the Company shall not remit the
Periodic Amounts payable to the Purchaser as set forth in paragraph (ii) above,
the Company will pay the Purchaser reasonable costs of collection, including
attorneys' fees, in addition to the Periodic Amounts.
(iv) The parties acknowledge that the damages which may be
incurred by the Purchaser if the Registration Statement is not filed by the
Required Filing Date, if the Registration Statement has not been declared
effective by the Required Effective Date, if an insufficient number of shares of
Common Stock shall be reserved for issuance, or if the provisions of Section
3(f) or 3(g) become applicable, may be difficult to ascertain. The parties agree
that the Periodic Amount represents a reasonable estimate on the part of the
parties, as of the date of this Agreement, of the amount of such damages.
(c) PIGGYBACK REGISTRATION. (i) If at any time or from time to
time, the Company shall determine to register any of its securities, for its own
account or the account of any of its
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shareholders, other than a Registration on Form S-8 or pursuant to an
acquisition transaction on Form S-4, the Company will:
(A) provide the Purchaser written notice thereof as soon as
practicable prior to filing the Registration Statement; and
(B) include in such Registration Statement and in any
underwriting involved therein, all of the Registrable
Securities specified in a written request by the Purchaser
made within fifteen (15) days after receipt of such written
notice from the Company.
(ii) If the Registration is for a registered public offering
involving an underwriting, the Company shall so advise the Purchaser as a part
of the written notice given pursuant to this Section. In such event, the rights
of the Purchaser hereunder shall include participation in such underwriting and
the inclusion of the Registrable Securities in the underwriting to the extent
provided herein. To the extent that the Purchaser proposes to distribute its
securities through such underwriting, the Purchaser shall (together with the
Company and any other securityholders of the Company distributing their
securities through such underwriting) enter into an underwriting agreement in
customary form with the underwriter or underwriters selected for such
underwriting by the Company. Notwithstanding any other provision of this
Section, if the managing underwriter of such underwriting determines that
marketing factors require a limitation of the number of shares to be offered in
connection with such underwriting, the managing underwriter may limit the number
of Registrable Securities to be included in the Registration and underwriting
(PROVIDED, HOWEVER, that (a) the Registrable Securities shall not be excluded
from such underwritten offering prior to the exclusion of any securities held by
officers and directors of the Company or their affiliates, (b) the Registrable
Securities shall be entitled to at least the same priority in an underwritten
offering as any securities included in such offering by any of the Company's
other existing securityholders, and (c) the Company shall not enter into any
agreement that would provide any securityholder with priority in connection with
an underwritten offering greater than the priority granted to the Purchaser
hereunder). The Company shall so advise any of its other securityholders who are
distributing their securities through such underwriting pursuant to their
respective piggyback registration rights, and the number of shares of
Registrable Securities and other securities that may be included in the
registration and underwriting shall be allocated among the Purchaser and all
other securityholders of the Company in proportion, as nearly as practicable, to
the respective amounts of Registrable Securities held by the Purchaser and such
other securityholders at the time of the filing of the registration statement.
If the Purchaser disapproves of the terms of any such underwriting, it may elect
to withdraw therefrom by written notice to the Company. Any Registrable
Securities so excluded or withdrawn from such underwriting shall be withdrawn
from such Registration.
(d) ELIGIBILITY FOR FORM SB-2. The Company represents and warrants that
it meets all of the requirements for the use of Form SB-2 for the Registration
of the sale by the Purchaser and any transferee who purchases the Registrable
Securities, and the Company shall file all reports
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required to be filed by the Company with the Commission in a timely manner, and
shall take such other actions as may be necessary to maintain such eligibility
for the use of Form SB-2.
(e) PRIORITY IN FILING. The Company covenants that beginning on the
Closing Date and ending on the later of (i) a date that is one hundred and
eighty (180) days after the Registration Statement filed pursuant to Section
2(a) of this Agreement becomes effective ( PROVIDED that if, after the effective
date of such Registration Statement, the Purchaser shall be unable to sell
Registrable Securities pursuant to such Registration Statement for any number of
days for any reasons other than as a result of any action or inaction on the
part of Purchaser, the provisions of this Section 2(e) shall apply for an
additional number of days equal to the number of days during which the Purchaser
is unable to sell Registrable Securities pursuant to such Registration
Statement) and (ii) the earlier of (x) a date that is one hundred and eighty
(180) days following the date the Special Warrant is exercised or (y) the
expiration date of the Special Warrant, the Company will not cause any
Registration Statement (other than a Registration Statement required by Section
2(a) hereof and registration statements on Form S-8 covering the sale of not
more than an aggregate of 500,000 shares of Common Stock to officers, directors,
employees and consultants of the Company) to be declared effective by the
Commission, without the written consent of the Purchaser.
3. OBLIGATIONS OF THE COMPANY.
In connection with the registration of the Registrable Securities, the
Company shall do each of the following:
(a) Prepare and file with the Commission the Registration Statements
required by Section 2 of this Agreement and such amendments (including
post-effective amendments) and supplements to the Registration Statements and
the prospectuses used in connection with such Registration Statements, each in
such form as to which the Purchaser and its counsel shall not have objected, as
may be necessary to keep the Registration effective at all times during the
Registration Period, and, during the Registration Period, comply with the
provisions of the Securities Act with respect to the disposition of all of the
Registrable Securities of the Company covered by the Registration Statements
until such time as all of such Registrable Securities have been disposed of in
accordance with the intended methods of disposition by the seller or sellers
thereof as set forth in the Registration Statements;
(b) Furnish to the Purchaser, if the Registrable Securities of the
Purchaser are included in the Registration Statement and the Purchaser is listed
as a selling security holder in the prospectus which is part of such
Registration Statement, and its legal counsel identified to the Company,
promptly after the same is prepared and publicly distributed, filed with the
Commission, or received by the Company, a copy of the Registration Statement,
each preliminary prospectus, each final prospectus, and all amendments and
supplements thereto and such other documents, as the Purchaser may reasonably
request in order to facilitate the disposition of its Registrable Securities;
(c) Furnish to the Purchaser and its counsel copies of any
correspondence between the Company and the Commission with respect to any
Registration Statement or amendment or supplement thereto filed pursuant to this
Agreement;
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(d) Use all reasonable efforts to (i) register and qualify the
Registrable Securities covered by the Registration Statements under such other
securities or blue sky laws of such jurisdictions as the Purchaser may
reasonably request, (ii) prepare and file in those jurisdictions such amendments
(including post-effective amendments) and supplements to such registrations and
qualifications as may be necessary to maintain the effectiveness thereof at all
times during the Registration Period, (iii) take such other actions as may be
necessary to maintain such registrations and qualifications in effect at all
times during the Registration Period and (iv) take all other actions reasonably
necessary or advisable to qualify the Registrable Securities for sale in such
jurisdictions, provided that in connection therewith, the Company shall not be
required to (x) qualify as a foreign corporation or to file a general consent to
the service of process in any jurisdiction or (y) qualify the resale of the
Registrable Securities in more than five such jurisdictions;
(e) List such securities on all national securities exchanges on which
any securities of the Company are then listed, and file any filings required by
such exchanges;
(f) As promptly as practicable after becoming aware of such event,
notify the Purchaser of the occurrence of any event, as a result of which the
prospectus included in any Registration Statement, as then in effect, includes
an untrue statement of a material fact or omits to state a material fact
required to be stated therein in order to make the statements therein, in light
of the circumstances under which they were made, not misleading, and to use its
best efforts to promptly prepare a supplement or amendment to such Registration
Statement or other appropriate filing with the Commission to correct such untrue
statement or omission, and to deliver a number of copies of such supplement or
amendment to the Purchaser as the Purchaser may reasonably request;
(g) As promptly as practicable after becoming aware of such event,
notify the Purchaser (and, in the event of an underwritten offering, the
managing underwriters) of the issuance by the Commission of any stop order or
other suspension of the effectiveness of any Registration Statement at the
earliest possible time, and to use its best efforts to promptly obtain the
withdrawal of such stop order or other suspension of effectiveness (the
occurrence of any of the events described in paragraphs (f) and (g) of this
Section 3 is referred to herein as a "Blackout Event");
(h) During the period commencing upon (i) the Purchaser's receipt of a
notification pursuant to Section 3(f) above or (ii) the entry of a stop order or
other suspension of the effectiveness of the Registration Statement described in
Section 3(g) above, and ending at such time as (x) the Company shall have
completed the applicable filings (and if applicable, such filings shall have
been declared effective) and shall have delivered to the Purchaser the documents
required pursuant to Section 3(f) above or (y) such stop order or other
suspension of the effectiveness of the Registration Statement shall have been
removed, the Company shall be liable to remit the payments required to be paid
to the Purchaser pursuant to Section 2(b) above;
(i) Suspend the use of any prospectus used in connection with any
Registration Statement only in the event, and for such period of time as, such a
suspension is required by the rules and regulations of the Commission;
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(j) Enter into such customary agreements for secondary offerings
(including a customary underwriting agreement with the underwriter or
underwriters, if any) and take all such other actions reasonably requested by
the Purchaser in connection therewith in order to expedite or facilitate the
disposition of such Registrable Securities. If an underwriting agreement is
entered into and the Registrable Securities are to be sold in an underwritten
offering the Company shall:
(i) make such representations and warranties to the Purchaser
and the underwriter or underwriters, in form, substance and scope as
are customarily made by issuers to selling stockholders and
underwriters in secondary offerings;
(ii) cause to be delivered to the sellers of Registrable
Securities and the underwriter or underwriters, opinions of independent
counsel to the Company (which counsel and opinions shall be reasonably
satisfactory in form, scope and substance to Purchaser and the
underwriter(s), and their counsel), (A) on and dated as of the
effective day of the applicable Registration Statement (and the date of
delivery of any Registrable Securities sold pursuant thereto) stating
that (x) such Registration Statement complies in all material respects
with the requirements of the Securities Act and the rules and
regulations of the Commission thereunder, (y) to the best of such
counsel's knowledge such Registration Statement does not contain an
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, and (z) the documents incorporated by reference
in the prospectus accompanying such Registration Statement, at the time
they were filed with the Commission or as amended, complied in all
material respects with the requirements of the Securities Exchange Act
of 1934, as amended (the "Exchange Act") and the rules and regulations
thereunder and, to the best of such counsel's knowledge when read
together with the other information in such prospectus, do not include
an 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;
(iii) cause to be delivered, immediately prior to the
effectiveness of the applicable Registration Statement (and, at the
time of delivery of any Registrable Securities sold pursuant thereto),
a "comfort" letter from the Company's independent certified public
accountants addressed to the Purchaser and each underwriter, stating
that such accountants are independent public accountants within the
meaning of the Securities Act and the applicable published rules and
regulations thereunder, and otherwise in customary form and covering
such financial and accounting matters as are customarily covered by
letters of the independent certified public accountants delivered in
connection with secondary offerings;
(iv) enter into an underwriting agreement which shall include
customary indemnification and contribution provisions to and from the
underwriters and procedures for secondary underwritten offerings;
(v) deliver such documents and certificates as may be
reasonably requested by any purchaser of the Registrable Securities
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being sold or the managing underwriter or underwriters, to evidence
compliance with clause (i) above and with any customary conditions
contained in the underwriting agreement; and
(vi) deliver to the Purchaser on the effective day of the
applicable Registration Statement (and on the date of delivery of any
Registrable Securities sold pursuant thereto), a certificate in form
and substance as shall be reasonably satisfactory to the Purchaser,
executed by an executive officer of the Company and to the effect that
all the representations and warranties of the Company contained in the
Securities Purchase Agreement are still true and correct except as
disclosed in such certificate;
(k) Make available for inspection by the Purchaser, their
representative(s), any underwriter participating in any disposition pursuant to
a Registration Statement, and any attorney or accountant retained by the
Purchaser or underwriter, all financial and other records customary for purposes
of a Purchaser's and underwriters' due diligence examination of the Company and
review of any Registration Statement, all filings made with the Commission
subsequent to the Closing, pertinent corporate documents and properties of the
Company, and cause the Company's officers, directors and employees to supply all
information reasonably requested by any such representative, underwriter,
attorney or accountant in connection with such Registration Statement, provided
that such parties agree to keep such information confidential;
(l) Cooperate with the Purchaser to facilitate the timely preparation
and delivery of certificates for the Registrable Securities to be offered
pursuant to any Registration Statement and to enable such certificates for the
Registrable Securities to be in such denominations or amounts, as the case may
be, as the Purchaser may reasonably request, and registered in such names as the
Purchaser may request subject to any restrictions on transfer applicable to such
Registrable Securities; and, within three (3) business days after a Registration
Statement which includes Registrable Securities is ordered effective by the
Commission, the Company shall deliver, and shall cause legal counsel selected by
the Company to deliver, to the transfer agent for the Registrable Securities
(with copies to the Purchaser) an appropriate instruction and opinion of such
counsel; and
(m) Permit counsel to the Purchaser to review the Registration
Statement and all amendments and supplements thereto within a reasonable period
of time (but not less than 5 business days) prior to each filing, and to
incorporate those changes, if provided to the Company or its counsel within such
5 business day period, reasonably suggested by such counsel.
4. OBLIGATIONS OF THE PURCHASER.
In connection with the registration of the Registrable Securities, the
Purchaser shall have the following obligations:
(a) Furnish to the Company such information regarding itself, the
Registrable Securities held by it, and the intended method of disposition of the
Registrable Securities held by it, as shall be reasonably required to effect the
registration of such Registrable Securities. The intended method or methods of
disposition and/or sale (Plan of Distribution) of the Registrable Securities as
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so provided by the Purchaser shall be included without alteration in any
Registration Statement covering the Registrable Securities and shall not be
changed without written consent of the Purchaser. At least five (5) business
days prior to the first anticipated filing date of any Registration Statement,
the Company shall notify the Purchaser of the information the Company requires
from the Purchaser if the Purchaser elects to have any of its Registrable
Securities included in such Registration Statement; and
(b) The Purchaser agrees that, upon receipt of any notice from the
Company of the happening of any Blackout Event of the kind described in Section
3(f) or 3(g) above, it will immediately discontinue disposition of its
Registrable Securities pursuant to the Registration Statement covering such
Registrable Securities until such copies of the supplemented or amended
prospectus contemplated by Section 3(f) or 3(g) shall be furnished to the
Purchaser.
5. EXPENSES OF REGISTRATION.
Other than underwriting discounts and commissions, all expenses
incurred in connection with registrations, filings or qualifications pursuant to
this Agreement, including, without limitation, all registration, listing, and
qualification fees, printing and accounting fees, and the fees and disbursements
of counsel for the Company, and the reasonable fees of one counsel to the
Purchaser with respect to each Registration Statement filed pursuant hereto,
shall be borne by the Company.
6. INDEMNIFICATION.
In the event any Registrable Securities are included in a Registration
Statement under this Agreement:
(a) The Company will indemnify and hold harmless the Purchaser, each of
its officers, directors and partners, and each person, if any, who controls the
Purchaser within the meaning of the Securities Act or the Exchange Act (each, an
"Indemnified Person"), against any losses, claims, damages, liabilities or
expenses (joint or several) incurred (collectively, "Claims") to which any of
them may become subject under the Securities Act, the Exchange Act or otherwise,
insofar as such Claims (or actions or proceedings, whether commenced or
threatened, in respect thereof) arise out of or are based upon: (i) any untrue
or alleged untrue statement of a material fact contained in the Registration
Statement or any post-effective amendment thereof or the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary in order to make the statements therein, in light of the circumstances
in which they were made, not misleading, (ii) any
untrue or alleged untrue statement of a material fact contained in any
preliminary prospectus if used prior to the effective date of such Registration
Statement, or contained in the final prospectus (as amended or supplemented, if
the Company files any amendment thereof or supplement thereto with the
Commission) or the omission or alleged omission to state therein any material
fact necessary in order to make the statements made therein, in light of the
circumstances under which they were made, not misleading, or (iii) any violation
or alleged violation by the Company of the Securities Act, the Exchange Act, any
state or foreign securities law or any rule or regulation under the Securities
Act, the Exchange Act or any state or foreign securities law (the matters in
foregoing clauses (i) through (iii) being, collectively, "Violations"). The
Company shall, subject to the provisions of Section 6(b) below, reimburse the
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Purchaser, promptly as such expenses are incurred and are due and payable, for
any legal and other costs, expenses and disbursements in giving testimony or
furnishing documents in response to a subpoena or otherwise, including without
limitation, the costs, expenses and disbursements, as and when incurred, of
investigating, preparing or defending any such action, suit, proceeding or
investigation (whether or not in connection with litigation in which the
Purchaser is a party), incurred by it in connection with the investigation or
defense of any such Claim. Notwithstanding anything to the contrary contained
herein, the indemnification agreement contained in this Section 6(a) shall not
(i) apply to any Claim arising out of or based upon a Violation which occurs in
reliance upon and in conformity with information furnished in writing to the
Company by or on behalf of any Indemnified Person expressly for use in
connection with the preparation of the Registration Statement or any such
amendment thereof or supplement thereto; (ii) with respect to any preliminary
prospectus, inure to the benefit of any such person from whom the person
asserting any such Claim purchased the Registrable Securities that are the
subject thereof (or to the benefit of any person controlling such person) if the
untrue statement or omission of material fact contained in the preliminary
prospectus was corrected in the final prospectus, as then amended or
supplemented, if such final prospectus was timely made available by the Company
pursuant to Section 3(b) hereof; (iii) be available to the extent that such
Claim is based upon a failure of the Purchaser to deliver or to cause to be
delivered the prospectus made available by the Company, if such prospectus was
timely made available by the Company pursuant to Section 3(b) hereof; or (iv)
apply to amounts paid in settlement of any Claim if such settlement is effected
without the prior written consent of the Company, which consent shall not be
unreasonably withheld. Such indemnity shall remain in full force and effect
regardless of any investigation made by or on behalf of the Indemnified Person
and shall survive the transfer of the Registrable Securities by the Purchaser
pursuant to Section 9. The Purchaser will indemnify the Company and its officers
and directors against any Claims arising out of or based upon a Violation which
occurs in reliance upon and in conformity with information furnished in writing
to the Company, by or on behalf of the Purchaser, expressly for use in
connection with the preparation of the Registration Statement, subject to such
limitations and conditions as are applicable to the Indemnification provided by
the Company in this Section 6.
(b) Promptly after receipt by an Indemnified Person under this Section
6 of notice of the commencement of any action (including any governmental
action), such Indemnified Person shall, if a Claim in respect thereof is to be
made against any indemnifying party under this Section 6, deliver to the
indemnifying party a written notice of the commencement thereof, and the
indemnifying party shall have the right to participate in, and to the extent
that the indemnifying party so desires, jointly with any other indemnifying
party similarly notified, to assume control of the defense thereof with counsel
mutually satisfactory to the indemnifying party and the Indemnified Person;
PROVIDED, HOWEVER, that an Indemnified Person shall have the right to retain its
own counsel with the reasonable fees and expenses to be paid by the indemnifying
party, if, in the reasonable opinion of counsel retained by the indemnifying
party, the representation by such counsel of the Indemnified Person and the
indemnifying party would be inappropriate due to actual or potential differing
interests between such Indemnified Person and any other party represented by
such counsel in such proceeding. In such event, the Company shall pay for only
one legal counsel for the Purchaser, and such legal counsel shall be selected by
the Purchaser. The failure to deliver written notice to an indemnifying party
11
within a reasonable time after the commencement of any such action shall not
relieve such indemnifying party of any liability to the Indemnified Person under
this Section 6, except to the extent that the indemnifying party is materially
prejudiced in its ability to defend such action. The indemnification required by
this Section 6 shall be made by periodic payments of the amount thereof during
the course of the investigation or defense, as such expense, loss, damage or
liability is incurred and is due and payable.
(c) No indemnifying party, in the defense of any such claim or
litigation, shall, except with the consent of each Indemnified Party, consent to
entry of any judgment or enter into any settlement which does not include as an
unconditional term thereof the giving by the claimant or plaintiff to such
Indemnified Person of an unconditional and irrevocable release from all
liability in respect of such claim or litigation.
(d) Notwithstanding the foregoing, to the extent that any provisions
relating to indemnification or contribution contained in the underwriting
agreements entered into among the Company, the underwriters and the Purchaser in
connection with an underwritten public offering are in conflict with the
foregoing provisions, the provisions in such underwriting agreements shall be
controlling as to the Registrable Securities included in the public offering;
PROVIDED, HOWEVER, that if, as a result of this Section 6(d), the Purchaser, its
officers, directors, partners or any person controlling the Purchaser is or are
held liable with respect to any Claim for which they would be entitled to
indemnification hereunder but for this Section 6(d) in an amount which exceeds
the aggregate proceeds received by the Purchaser from the sale of Registrable
Securities included in a registration pursuant to such underwriting agreement
(the "Excess Liability"), the Company shall reimburse the Purchaser for such
Excess Liability.
7. CONTRIBUTION.
To the extent any indemnification by an indemnifying party is
prohibited or limited under applicable law, the indemnifying party agrees to
contribute to the amount paid or payable by such indemnified party as a result
of such loss, claim, damage, liability or expense in such proportion as is
appropriate to reflect the relative fault of the indemnifying party on the one
hand and the Indemnified Person on the other hand in connection with the
statements or omissions which resulted in such Claim, as well as any other
relevant equitable considerations. The relative fault of the indemnifying party
and the Indemnified Person shall be determined by reference to, among other
things, whether the untrue statement of a material fact or the omission to state
a material fact on which such Claim is based relates to information supplied by
the indemnifying party or by the Indemnified Person, and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission. Notwithstanding the forgoing, (a) no seller of
Registrable Securities guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any seller of Registrable Securities who was not guilty of
such fraudulent misrepresentation and (b) contribution by any seller of
Registrable Securities shall be limited in amount to the net proceeds received
by such seller from the sale of such Registrable Securities. The Company and the
Purchaser agree that it would not be just and equitable if contribution pursuant
to this Section 7 were determined by PRO RATA allocation (even if the Purchaser
and any other party were treated as one entity for such purpose) or by any other
12
method of allocation that does not take account of the equitable considerations
referred to in this Section.
8. REPORTS UNDER EXCHANGE ACT.
With a view to making available to the Purchaser the benefits of Rule
144 promulgated under the Securities Act or any other similar rule or regulation
of the Commission that may at any time permit the Purchaser to sell securities
of the Company to the public without registration ("Rule 144"), the Company
agrees to:
(i) make and keep public information available, as those
terms are understood and defined in Rule 144;
(ii) file with the Commission in a timely manner all reports
and other documents required of the Company under the Securities Act and the
Exchange Act; and
(iii) furnish to the Purchaser, so long as the Purchaser owns
Registrable Securities, promptly upon request, (i) a written statement by the
Company that it has complied with the reporting requirements of the Securities
Act and the Exchange Act, (ii) a copy of the most recent annual or periodic
report of the Company and such other reports and documents so filed by the
Company and (iii) such other information as may be reasonably requested to
permit the Purchaser to sell such securities pursuant to Rule 144 without
registration.
9. ASSIGNMENT OF THE REGISTRATION RIGHTS.
The rights to have the Company register Registrable Securities pursuant
to this Agreement shall be automatically assigned by the Purchaser to any
transferee of all or any portion of the Securities or Shares held by the
Purchaser if: (a) such transfer is permitted by the Securities Purchase
Agreement and the Purchaser agrees in writing with the transferee or assignee to
assign such rights, and a copy of such agreement is furnished to the Company
within a reasonable time after such assignment; (b) the Company is, within a
reasonable time after such transfer or assignment, furnished with written notice
of (i) the name and address of such transferee or assignee and (ii) the
Securities or Shares with respect to which such registration rights are being
transferred or assigned; (c) at or before the time the Company receives the
written notice contemplated by clause (b) of this sentence, the transferee or
assignee agrees in writing with the Company to be bound by all of the provisions
contained herein; and (d) the transferee of the relevant Securities or Shares
complies with the restrictions on the Purchaser set forth in Section 5 of the
Securities Purchase Agreement.
10. AMENDMENT OF REGISTRATION RIGHTS.
Any provision of this Agreement may be amended and the observance
thereof may be waived (either generally or in a particular instance and either
retroactively or prospectively), only with the written consent of the Company
and holders of 75% of the Registrable Securities from time to time. Any
13
amendment or waiver effected in accordance with this Section 10 shall be binding
upon the Purchaser and the Company.
11. MISCELLANEOUS.
(a) A person or entity is deemed to be a holder of Registrable
Securities whenever such person or entity owns of record such Registrable
Securities. If the Company receives conflicting instructions, notices or
elections from two or more persons or entities with respect to the same
Registrable Securities, the Company shall act upon the basis of the
instructions, notice or election received from the registered owner of such
Registrable Securities.
(b) Any notice required or permitted hereunder shall be given in
writing (unless otherwise specified herein) and shall be effective upon personal
delivery, via facsimile (upon receipt of confirmation of error-free
transmission) or two business days following deposit of such notice with an
internationally recognized courier service, with postage prepaid and addressed
to each of the parties thereunto entitled at the following addresses, or at such
other addresses as a party may designate by five days advance written notice to
each of the other parties hereto.
COMPANY: ACCESS POWER, INC.
00000 Xxxxxxxx Xx. Xxxx, Xxxxx 000
Xxxxx Xxxxx Xxxxx, Xxxxxxx 00000
Att.: Xxxxxxx Xxxxxxxx
Tel.: (000) 000-0000
Fax: (000) 000-0000
WITH A COPY TO:
Xxxxxxxxxx Xxxxxxxx LLP
0000 Xxxxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
Att: Xxxxxx X. Xxxxxxxxx, Esq.
Tel.: (000) 000-0000
Fax: (000) 000-0000
14
PURCHASER: Bamboo Investors LLC
c/o WEC Asset Management LLC
Xxx Xxxxx Xxxxx Xxxxxx
Xxxxx 0000
Xxx Xxxx, Xxx Xxxx 00000
Att.: Xxxxx X. Xxxxxxxx
Tel.: (000) 000-0000
Fax: (000) 000-0000
WITH A COPY TO:
Kronish Xxxx Xxxxxx & Xxxxxxx LLP
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Att.: Xxxxxx Xxxxxxx, Esq.
Tel.: (000) 000-0000
Fax: (000) 000-0000
(c) Failure of any party to exercise any right or remedy under this
Agreement or otherwise, or delay by a party in exercising such right or remedy,
shall not operate as a waiver thereof.
(d) This Agreement shall be governed by and interpreted in accordance
with the laws of the State of New York, except for provisions with respect to
internal corporate matters of the Company which shall be governed by the
corporate laws of the State of Florida. Each of the parties consents to the
jurisdiction of the federal courts whose districts encompass any part of the
City of New York or the state courts of the State of New York sitting in the
City of New York in connection with any dispute arising under this Agreement and
hereby waives, to the maximum extent permitted by law, any objection, including
any objection based on FORUM NON CONVENIENS, to the bringing of any such
proceeding in such jurisdictions. This Agreement may be signed in one or more
counterparts, each of which shall be deemed an original. The headings of this
Agreement are for convenience of reference and shall not form part of, or affect
the interpretation of, this Agreement. This Agreement has been entered into
freely by each of the parties, following consultation with their respective
counsel, and shall be interpreted fairly in accordance with its terms, without
any construction in favor of or against either party. If any provision of this
Agreement shall be invalid or unenforceable in any jurisdiction, such validity
or unenforceability shall not affect the validity or enforceability of the
remainder of this Agreement or the validity or enforceability of this Agreement
in any other jurisdiction. This Agreement supersedes all prior agreements and
understandings among the parties hereto with respect to the subject matter
hereof.
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(e) This Agreement constitutes the entire agreement among the parties
hereto with respect to the subject matter hereof. There are no restrictions,
promises, warranties or undertakings, other than those set forth, or referred to
herein and in the other Primary Documents. This Agreement supersedes all prior
agreements and understandings among the parties hereto with respect to the
subject matter hereof.
(f) Subject to the requirements of Section 9 hereof, this Agreement
shall inure to the benefit of and be binding upon the successors and assigns of
each of the parties hereto.
(g) All pronouns and any variations thereof refer to the masculine,
feminine or neuter, singular or plural, as the context may require.
(h) The Company acknowledges that any failure by the Company to perform
its obligations under Section 2(a), or any delay in such performance could
result in direct damages to the Purchaser, and the Company agrees that, in
addition to any other liability the Company may have by reason of any such
failure or delay, the Company shall be liable for all direct damages caused by
any such failure or delay.
IN WITNESS WHEREOF, the parties have caused this Registration Rights
Agreement to be duly executed.
ACCESS POWER, INC.
By: /s/ Xxxxx Xxxxx
Name: Xxxxx Xxxxx
Title: President/CEO
BAMBOO INVESTORS LLC
By: WEC Asset Management LLC, Manager
By: /s/Xxxxx X. Xxxxxxxx
Name: Xxxxx X. Xxxxxxxx
Title: Managing Director
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