EXHIBIT 10.3
FORM OF REGISTRATION RIGHTS AGREEMENT
This REGISTRATION RIGHTS AGREEMENT, dated ______ __, 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 ("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 "Investors"). Unless otherwise provided in this Agreement,
capitalized terms used herein have the respective meanings given to them in
Section 1.1 hereof.
WHEREAS, pursuant to the Stock and Warrant Purchase Agreement,
dated as of March 21, 2003 (the "Purchase Agreement"), among the Company and
the Investors, the Company has agreed to issue and sell (a) to the Investors, 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 (b) to Beacon, the Beacon Warrant (as hereinafter defined); and
WHEREAS, the Company has agreed to grant certain registration
rights with respect to the Registrable Securities as set forth in this
Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and
agreements set forth herein and for good and valuable consideration, the receipt
and adequacy of which are hereby acknowledged, the parties hereto agree as
follows:
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ARTICLE I
DEFINITIONS
1.1 Definitions. As used in this Agreement, and unless
the context requires a different meaning, the following terms have the meanings
indicated:
"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
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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
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"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
2.1 Grant of Rights. The Company hereby grants
registration rights to the Designated Holders upon the terms and conditions set
forth in this Agreement.
2.2 Registrable Securities. For the purposes of this
Agreement, Registrable Securities will cease to be Registrable Securities, when
(i) a Registration Statement covering such Registrable Securities has been
declared effective under the Securities Act by the Commission and such
Registrable Securities have been disposed of pursuant to such effective
Registration Statement, (ii) the entire amount of the Registrable Securities
owned by a Designated Holder may be sold in a single sale, in the opinion of
counsel satisfactory to the Company and such Designated Holder, each in their
reasonable judgment (it being agreed that Xxxxx, Xxxxxxx & Xxxxxxxxx, LLP shall
be satisfactory), without any limitation as to volume pursuant to Rule 144 (or
any successor provision then in effect) under the Securities Act or (iii) such
Registrable Securities have been sold to the public pursuant to Rule 144 under
the Securities Act.
2.3 Holders of Registrable Securities. A Person is deemed
to be a holder of Registrable Securities whenever such Person owns of record
Registrable Securities, or holds an option to purchase, or a security
convertible into or exercisable or
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exchangeable for, Registrable Securities whether or not such acquisition or
conversion has actually been effected. If the Company receives conflicting
instructions, notices or elections from two or more Persons with respect to the
same Registrable Securities, the Company may act upon the basis of the
instructions, notice or election received from the registered owner of such
Registrable Securities. Registrable Securities issuable upon exercise of an
option or upon conversion of another security shall be deemed outstanding for
the purposes of this Agreement.
ARTICLE III
SHELF REGISTRATION STATEMENT
3.1 Shelf Registration Statement. Not later than thirty
(30) days after the date hereof, the Company shall file with the Commission a
shelf registration statement pursuant to Rule 415 of the Securities Act (the
"Shelf Registration Statement") on Form S-3 (or any successor form thereto),
with respect to the resale, from time to time, of all of the Registrable
Securities held by Designated Holders.
3.2 Effective Shelf Registration Statement. The Company
shall use its reasonable best efforts to cause the Shelf Registration Statement
to become effective as soon as practicable after the date hereof (but not later
than seventy-five (75) days after the filing date of the Shelf Registration
Statement), and shall use its reasonable best efforts to keep the Shelf
Registration Statement continuously effective under the Securities Act, subject
to the provisions of Section 7.3, until the earlier of (i) the second
anniversary of the effective date of the Shelf Registration Statement or (ii)
such time as the Company delivers an opinion of counsel that each Designated
Holder 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 Shelf Registration Statement have been sold.
ARTICLE IV
DEMAND REGISTRATION
4.1 Request for Demand Registration. At any time after
the date hereof that the Shelf Registration Statement is not effective, any
Investor or group of Investors holding at least 10% of the Registrable
Securities held by all of the Investors (the "Initiating Holders") may make a
written request to the Company to register, and the Company shall use its best
efforts to register, under the Securities Act (other than pursuant to a
Registration Statement on Form S-4 or S-8 or any successor thereto) (a "Demand
Registration"), the number of Registrable Securities stated in such request;
provided, however, that (i) the reasonably anticipated aggregate price to the
public of all Registrable Securities required to be included in such public
offering shall exceed $4,000,000 and (ii) the Company shall not be obligated to
effect more than three such
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Demand Registrations for the Investors. For purposes of the preceding sentence,
two or more Registration Statements filed in response to one demand shall be
counted as one Demand Registration. If the Board of Directors, in its good faith
judgment, determines that any registration of Registrable Securities should not
be made or continued because it would materially interfere with any material
financing, acquisition, corporate reorganization or merger or other material
transaction involving the Company (a "Valid Business Reason"), the Company may
(x) postpone filing a Registration Statement relating to a Demand 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 Demand 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. 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 4.1 or
Section 6.3 more than once in any twelve (12) month period. Each request for a
Demand Registration by the Initiating Holders shall state the amount of the
Registrable Securities proposed to be sold and the intended method of
disposition thereof.
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.
4.3 Effective Demand Registration. The Company shall use
its reasonable best efforts to cause any such Demand Registration to become and
remain effective not later than seventy-five (75) days after it receives a
request under Section 4.1 hereof. A registration shall not constitute a Demand
Registration until it has become effective and remains continuously effective
for the lesser of (i) the period during which all Registrable Securities
registered in the Demand Registration are sold and
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(ii) 180 days; provided, however, that a registration shall not constitute a
Demand Registration if (x) after such Demand Registration has become effective,
such registration or the related offer, sale or distribution of Registrable
Securities thereunder is interfered with by any stop order, injunction or other
order or requirement of the Commission or other governmental agency or court for
any reason not attributable to the Initiating Holders and such interference is
not thereafter eliminated or (y) the conditions specified in the underwriting
agreement, if any, entered into in connection with such Demand Registration are
not satisfied or waived, other than by reason of a failure by the Initiating
Holder.
4.4 Expenses. The Company shall pay all Registration
Expenses in connection with a Demand Registration, whether or not such Demand
Registration becomes effective.
4.5 Underwriting Procedures. If the Initiating Holders
holding a majority of the Registrable Securities held by all of the Initiating
Holders so elect, the Company shall use its reasonable best efforts to cause
such Demand Registration 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 Demand Registration under this Article IV involving an
underwritten offering, none of the Registrable Securities held by any Designated
Holder making a request for inclusion of such Registrable Securities pursuant to
Section 4.2 hereof shall be included in such underwritten offering unless such
Designated Holder accepts the terms of the offering as agreed upon by the
Company, the Initiating Holders and the Approved Underwriter, and then only in
such quantity as will not, in the opinion of the Approved Underwriter,
jeopardize the success of such offering by the Initiating Holders. If the
Approved Underwriter advises the Company that the aggregate amount of such
Registrable Securities requested to be included in such offering is sufficiently
large to have a material adverse effect on the success of such offering, then
the Company shall include in such registration, to the extent of the amount that
the Approved Underwriter believes may be sold without causing such material
adverse effect, first, such number of Registrable Securities of the Initiating
Holders and any Designated Holder participating in the offering pursuant to this
Article IV, which Registrable Securities shall be allocated pro rata among such
Initiating Holders and Designated Holders, based on the number of Registrable
Securities requested to be included in such offering by each such Initiating
Holder and Designated Holder, second, 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, and third, securities offered by the Company for its own
account. In addition, the Company shall not be required to file any registration
statement pursuant to this Article IV 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 all of the Registrable
Securities they requested to include in such registration pursuant to Article V
or (ii) the Registration Statement was filed pursuant to Article VI or this
Article IV.
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4.6 Selection of Underwriters. If any Demand Registration
or S-3 Registration, as the case may be, of Registrable Securities is in the
form of an underwritten offering, the Initiating Holders or S-3 Initiating
Holders, as the case may be, holding a majority of the Registrable Securities
held by all of the Initiating Holders or S-3 Initiating Holders, as the case may
be, shall select and obtain an investment banking firm of national reputation to
act as the managing underwriter of the offering (the "Approved Underwriter");
provided, however, that the Approved Underwriter shall, in any case, also be
approved by the Company.
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
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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
FORM S-3 REGISTRATION
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.
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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
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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
REGISTRATION PROCEDURES
7.1 Obligations of the Company. Whenever registration of
Registrable Securities has been requested pursuant to Article III, Article IV,
Article V or Article VI of this Agreement, the Company shall use its reasonable
best efforts to effect the registration and sale of such Registrable Securities
in accordance with the intended method of distribution thereof as quickly as
practicable, and in connection with any such request, the Company shall, as
expeditiously as possible:
(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
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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.
7.2 Seller Information. The Company may require each
seller of Registrable Securities as to which any registration is being effected
to furnish, and such seller shall furnish, to the Company such information
regarding the distribution of such securities as the Company may from time to
time reasonably request in writing. The furnishing of such information shall be
a condition to the inclusion of the seller's shares in such registration.
7.3 Notice to Discontinue. Each Designated Holder agrees
that, upon receipt of any notice from the Company of the happening of any event
of the kind described in Section 7.1(e)(v), such Designated Holder shall
forthwith discontinue disposition of Registrable Securities pursuant to the
Registration Statement covering such Registrable Securities until such
Designated Holder's receipt of the copies of the supplemented or amended
prospectus contemplated by Section 7.1(f) and, if so directed by the Company,
such Designated Holder shall deliver to the Company (at the Company's expense)
all copies, other than permanent file copies then in such Designated Holder's
possession, of the prospectus covering such Registrable Securities which is
current at the time of receipt of such notice. If the Company shall give any
such notice, the Company shall extend the period during which such Registration
Statement shall be maintained effective pursuant to this Agreement (including,
without limitation, the period referred to in Section 7.1(b)) by the number of
days during the period from and including the date of the giving of such notice
pursuant to Section 7.1(e)(v) to and including the date when sellers of such
Registrable Securities under such Registration Statement shall have received the
copies of the supplemented or amended prospectus contemplated by, and meeting
the requirements of, Section 7.1(f).
7.4 Registration Expenses. The Company shall pay all
expenses arising from or incident to its performance of, or compliance with,
this Agreement, including, without limitation, (i) Commission, stock exchange
and NASD registration and filing fees, (ii) all fees and expenses incurred in
complying with securities or "blue sky" laws (including reasonable fees, charges
and disbursements of counsel to any underwriter incurred in connection with
"blue sky" qualifications of the Registrable Securities as may be set forth in
any underwriting agreement), (iii) all printing,
16
messenger and delivery expenses, (iv) the fees, charges and expenses of counsel
to the Company and of its independent public accountants and any other
accounting fees, charges and expenses incurred by the Company (including,
without limitation, any expenses arising from any "cold comfort" letters or any
special audits incident to or required by any registration or qualification) and
any legal fees, charges and expenses incurred, in the case of a Demand
Registration or an S-3 Registration, by the Initiating Holders or the S-3
Initiating Holders, as the case may be, but solely with respect to a single
counsel for all such Initiating Holders and S-3 Initiating Holders and (v) any
liability insurance or other premiums for insurance obtained in connection with
any Demand Registration or piggy-back registration thereon, Incidental
Registration or S-3 Registration pursuant to the terms of this Agreement,
regardless of whether such Registration Statement is declared effective. All of
the expenses described in the preceding sentence of this Section 7.4 are
referred to herein as "Registration Expenses." The Designated Holders of
Registrable Securities sold pursuant to a Registration Statement shall bear the
expense of any broker's commission or underwriter's discount or commission
relating to registration and sale of such Designated Holders' Registrable
Securities and, subject to clause (iv) above, shall bear the fees and expenses
of their own counsel.
ARTICLE VIII
INDEMNIFICATION; CONTRIBUTION
8.1 Indemnification by the Company. The Company agrees to
indemnify and hold harmless each Designated Holder, its general or limited
partners, members, directors, officers, Affiliates and each Person who controls
(within the meaning of Section 15 of the Securities Act) any of the foregoing
from and against any and all losses, claims, damages, liabilities and expenses
(including reasonable costs of investigation) (each, a "Liability" and
collectively, "Liabilities"), (i) arising out of or based upon any untrue, or
allegedly untrue, statement of a material fact contained in any Registration
Statement, prospectus or preliminary, final or summary prospectus or
notification or offering circular (as amended or supplemented if the Company
shall have furnished any amendments or supplements thereto) or (ii) arising out
of or based upon any omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements therein
not misleading in light of the circumstances under which such statements were
made, except insofar as such Liability arises out of or is based upon any untrue
statement or alleged untrue statement or omission or alleged omission contained
in such Registration Statement, preliminary prospectus or final prospectus in
reliance and in conformity with information concerning such Designated Holder
furnished in writing to the Company by such Designated Holder specifically for
use therein; provided, however, that the foregoing indemnity with respect to any
preliminary prospectus shall not inure to the benefit of any Indemnified Person
from whom the person asserting such losses, claims, damages, liabilities,
expenses and judgments purchased securities if such untrue statement or omission
or alleged untrue statement or omission made in such preliminary prospectus is
eliminated or remedied in the prospectus and a copy of the prospectus shall not
have been furnished to such person in a timely manner due to the wrongful action
or wrongful inaction of such Indemnified
17
Person, whether as a result of negligence or otherwise. The Company shall also
provide customary indemnities to any underwriters of the Registrable Securities,
their officers, directors and employees and each Person who controls such
underwriters (within the meaning of Section 15 of the Securities Act) to the
same extent as provided above with respect to the indemnification of the
Designated Holders of Registrable Securities.
8.2 Indemnification by Designated Holders. In connection
with any Registration Statement in which a Designated Holder is participating
pursuant to Article III, Article IV, Article V or Article VI hereof, each such
Designated Holder shall promptly furnish to the Company in writing such
information with respect to such Designated Holder as the Company may reasonably
request or as may be required by law for use in connection with any such
Registration Statement or prospectus and all information required to be
disclosed in order to make the information previously furnished to the Company
by such Designated Holder not materially misleading or necessary to cause such
Registration Statement or prospectus not to omit a material fact with respect to
such Designated Holder necessary in order to make the statements therein not
misleading. Each Designated Holder agrees to indemnify and hold harmless the
Company, its directors, officers, Affiliates, any underwriter retained by the
Company and each Person who controls the Company or such underwriter (within the
meaning of Section 15 of the Securities Act) to the same extent as the foregoing
indemnity from the Company to the Designated Holders, but only if such untrue
statement or alleged untrue statement or omission or alleged omission was made
in reliance upon and in conformity with information with respect to such
Designated Holder furnished in writing to the Company by such Designated Holder
specifically for use in such Registration Statement or preliminary, final or
summary prospectus or amendment or supplement, or a document incorporated by
reference into any of the foregoing; provided, however, that the total amount to
be indemnified by such Designated Holder pursuant to this Section 8.2 shall be
limited to the net proceeds (after deducting the underwriters' discounts and
commissions) received by such Designated Holder in the offering to which the
Registration Statement or prospectus relates.
8.3 Conduct of Indemnification Proceedings. Any Person
entitled to indemnification hereunder (the "Indemnified Party") agrees to give
prompt written notice to the indemnifying party (the "Indemnifying Party") after
the receipt by the Indemnified Party of any written notice of the commencement
of any action, suit, proceeding or investigation or threat thereof made in
writing for which the Indemnified Party intends to claim indemnification or
contribution pursuant to this Agreement; provided, however, that the failure to
so notify the Indemnifying Party shall not relieve the Indemnifying Party of any
Liability that it may have to the Indemnified Party hereunder (except to the
extent that the Indemnifying Party is materially prejudiced or otherwise
forfeits substantive rights or defenses by reason of such failure). If notice of
commencement of any such action is given to the Indemnifying Party as above
provided, the Indemnifying Party shall be entitled to participate in and, to the
extent it may wish, jointly with any other Indemnifying Party similarly
notified, to assume the defense of such action at its own expense, with counsel
chosen by it and reasonably satisfactory to such Indemnified Party. The
Indemnified Party shall have the right to employ separate counsel in any such
action and participate in the defense thereof, but the fees and expenses of such
counsel
18
shall be paid by the Indemnified Party unless (i) the Indemnifying Party agrees
to pay the same, (ii) the Indemnifying Party fails to assume the defense of such
action with counsel reasonably satisfactory to the Indemnified Party or (iii)
the named parties to any such action (including any impleaded parties) include
both the Indemnifying Party and the Indemnified Party and such parties have been
advised by such counsel that either (x) representation of such Indemnified Party
and the Indemnifying Party by the same counsel would be inappropriate under
applicable standards of professional conduct or (y) there may be one or more
legal defenses available to the Indemnified Party which are different from or
additional to those available to the Indemnifying Party. In any of such cases,
the Indemnifying Party shall not have the right to assume the defense of such
action on behalf of such Indemnified Party, it being understood, however, that
the Indemnifying Party shall not be liable for the fees and expenses of more
than one separate firm of attorneys (in addition to any local counsel) for all
Indemnified Parties. No Indemnifying Party shall be liable for any settlement
entered into without its written consent, which consent shall not be
unreasonably withheld. No Indemnifying Party shall, without the consent of such
Indemnified Party, effect any settlement of any pending or threatened proceeding
in respect of which such Indemnified Party is a party and indemnity has been
sought hereunder by such Indemnified Party, unless such settlement includes an
unconditional release of such Indemnified Party from all liability for claims
that are the subject matter of such proceeding.
8.4 Contribution. (a) If the indemnification provided for
in this Article VIII from the Indemnifying Party is unavailable to an
Indemnified Party hereunder in respect of any Liabilities referred to herein,
then the Indemnifying Party, in lieu of indemnifying such Indemnified Party,
shall contribute to the amount paid or payable by such Indemnified Party as a
result of such Liabilities in such proportion as is appropriate to reflect the
relative fault of the Indemnifying Party and Indemnified Party in connection
with the actions which resulted in such Liabilities, as well as any other
relevant equitable considerations. The relative faults of such Indemnifying
Party and Indemnified Party shall be determined by reference to, among other
things, whether any action in question, including any untrue or alleged untrue
statement of a material fact or omission or alleged omission to state a material
fact, has been made by, or relates to information supplied by, such Indemnifying
Party or Indemnified Party, and the parties' relative intent, knowledge, access
to information and opportunity to correct or prevent such action. The amount
paid or payable by a party as a result of the Liabilities referred to above
shall be deemed to include, subject to the limitations set forth in Sections 8.1
and 8.2, any legal or other fees, charges or expenses reasonably incurred by
such party in connection with any investigation or proceeding; provided, that
the total amount to be contributed by such Designated Holder shall be limited to
the net proceeds (after deducting the underwriters' discounts and commissions)
received by such Designated Holder in the offering.
(b) The parties hereto agree that it would not be just
and equitable if contribution pursuant to this Section 8.4 were determined by
pro rata allocation or by any other method of allocation which does not take
account of the equitable considerations referred to in Section 8.4(a). No Person
guilty of fraudulent misrepresentation (within
19
the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any Person who was not guilty of such fraudulent
misrepresentation.
ARTICLE IX
COVENANTS
9.1 Rule 144. The Company covenants that from and after
the date hereof it shall (a) file any reports required to be filed by it under
the Exchange Act and (b) take such further action as each Designated Holder may
reasonably request (including providing any information necessary to comply with
Rule 144 under the Securities Act), all to the extent required from time to time
to enable such Designated Holder to sell Registrable Securities without
registration under the Securities Act within the limitation of the exemptions
provided by (i) Rule 144 under the Securities Act, as such rule may be amended
from time to time, or Regulation S under the Securities Act or (ii) any similar
rules or regulations hereafter adopted by the Commission. The Company shall,
upon the request of any Designated Holder, deliver to such Designated Holder a
written statement as to whether it has complied with such requirements.
9.2 Limitations on Registration Rights. No person
(including holders of Registrable Shares) shall, without the prior written
consent of Investors holding at least a majority of the Registrable Securities,
be permitted to include securities of the Company in any registration filed
under Article III, Article IV or Article VI hereto.
ARTICLE X
MISCELLANEOUS
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.
10.2 No Inconsistent Agreements. The Company represents
and warrants that it has not granted to any Person the right to request or
require the Company to register any securities issued by the Company, other than
the rights granted to the
20
Designated Holders herein. The Company shall not enter into any agreement with
respect to its securities that is inconsistent with the rights granted to the
Designated Holders in this Agreement or grant any additional registration rights
to any Person or with respect to any securities which are not Registrable
Securities which are prior in right to or inconsistent with the rights granted
in this Agreement, except with the prior written consent of holders of a
majority of the Registrable Securities.
10.3 Remedies. The Designated Holders, in addition to
being entitled to exercise all rights granted by law, including recovery of
damages, shall be entitled to specific performance of their rights under this
Agreement. The Company agrees that monetary damages would not be adequate
compensation for any loss incurred by reason of a breach by it of the provisions
of this Agreement and hereby agrees to waive in any action for specific
performance the defense that a remedy at law would be adequate.
10.4 Notices. All notices, demands and other
communications provided for or permitted hereunder shall be made in the manner
provided for under the Purchase Agreement.
10.5 Successors and Assigns; Third Party Beneficiaries.
This Agreement shall inure to the benefit of and be binding upon the successors
and permitted assigns of the parties hereto as hereinafter provided. The rights
of the Designated Holders contained in this Agreement shall be automatically
transferred to the transferee of any Registrable Security, provided, that such
transferee agrees to become a party to this Agreement and be fully bound by, and
subject to, all of the terms and conditions of the Agreement as though an
original party hereto. All of the obligations of the Company hereunder shall
survive any such transfer. Except as provided in Article VIII, no Person other
than the parties hereto and their successors and permitted assigns are intended
to be a beneficiary of this Agreement.
10.6 Amendments and Waivers. Except as otherwise provided
herein, the provisions of this Agreement may not be amended, modified or
supplemented, and waivers or consents to departures from the provisions hereof
may not be given unless consented to in writing by (i) the Company and (ii) the
Investors holding a majority of the Registrable Securities held by all of the
Investors; provided, that if any such amendment, modification, supplement,
waiver, consent or departure would adversely affect the rights, preferences or
privileges of any Investor disproportionately with respect to the rights,
preferences and privileges of the other Investors, such Investor's consent in
writing shall be required.
10.7 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.
21
10.8 Headings. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning hereof.
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.
10.10 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.
10.11 Rules of Construction. Unless the context otherwise
requires, references to sections or subsections refer to sections or subsections
of this Agreement.
10.12 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.
10.13 Further Assurances. Each of the parties shall execute
such documents and perform such further acts (including, without limitation,
obtaining any consents, exemptions, authorizations or other actions by, or
giving any notices to, or making any filings with, any governmental authority or
any other Person) as may be reasonably required or desirable to carry out or to
perform the provisions of this Agreement.
10.14 Other Agreements. Nothing contained in this Agreement
shall be deemed to be a waiver of, or release from, any obligations any party
hereto may have under, or any restrictions on the transfer of Registrable
Securities or other securities of
22
the Company imposed by, any other agreement including, but not limited to, the
Charter Documents and the Purchase Agreement.
10.15 Termination. This Agreement and the obligations of
the parties hereunder shall terminate upon the end of the Effectiveness Period,
except for liabilities or obligations under Section 7.4 or Article VIII, all of
which shall remain in effect in accordance with their terms.
[Remainder of page intentionally left blank]
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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: ____________________________________________
Name:
Title:
PERSEUS 2000, L.L.C.
By: Perseus 2000 Management, L.L.C., its Manager
By: ____________________________________________
Name: Xxxxxx X. Xxxxxx
Title: Managing Director
NTH POWER TECHNOLOGIES FUND II, LP
By: Nth Power LLC, its General Partner
By: ____________________________________________
Name: Xxx Xxxxxxxx
Title: Managing Director
NTH POWER TECHNOLOGIES FUND II-A, LP
By: Nth Power LLC, its General Partner
By: ____________________________________________
Name: Xxx Xxxxxxxx
Title: Managing Director
ROCKPORT CAPITAL PARTNERS, L.P.
By: RockPort Capital I, LLC, its General Partner
By: ____________________________________________
Name:
Title:
24
MICRO-GENERATION TECHNOLOGY FUND,
LLC
By: Arete Corporation, Manager
By: ____________________________________________
Name: Xxxxxx X. Xxxx, Xx.
Title: President
UVCC FUND II
By: Arete Venture Investors II, L.P.
By: ____________________________________________
Name: Xxxxxx X. Xxxx, Xx.
Title: General Partner
UVCC II PARALLEL FUND, L.P.
By: Arete Ventures L.P. III
By: ____________________________________________
Name: Xxxxxx X. Xxxx, Xx.
Title: General Partner
CAISSE DE DEPOT ET PLACEMENT DU QUEBEC
By: ____________________________________________
Name:
Title:
By: ____________________________________________
Name:
Title:
25
CDP CAPITAL - TECHNOLOGY VENTURES U.S.
FUND 2002 L.P.
By: Management U.S. Fund 2002 Inc., its General
Partner
By: ____________________________________________
Name:
Title:
By: ____________________________________________
Name:
Title:
BEACON POWER CORPORATION
By: ____________________________________________
Name:
Title:
MASSACHUSETTS TECHNOLOGY PARK
CORPORATION
By: ____________________________________________
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: ____________________________________________
Name:
Title:
00
XXXX XXXXX XXXXXXX (XXXXXX) 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: ____________________________________________
Name:
Title:
ZERO STAGE CAPITAL SBIC VII, L.P.
By: Zero Stage Capital SBIC VII Associates,
L.P., its General Partner
By: ____________________________________________
Name:
Title:
IMPAX ENVIRONMENTAL MARKETS PLC
By: ____________________________________________
Name:
Title:
XXXXXXX XXXXX NEW ENERGY TECHNOLOGY
FUND
By: ____________________________________________
Name: Xxxxxx Xxxxx
Title: Managing Director
By: ____________________________________________
Name: Xxxxx Xxxxxxxxx
Title: Director
27
MLIIF NEW ENERGY FUND
By: ____________________________________________
Name: Xxxxxx Xxxxx
Title: Managing Director
By: ____________________________________________
Name: Xxxxx Xxxxxxxxx
Title: Director
PNE INVEST LIMITED
By: ____________________________________________
Name: Xxxxx Xxxxxxxxx
Title: Chairman of the Board of Directors
By: ____________________________________________
Name: Xxxxxxx Xxxxx
Title: Director
ODYSSEY FUND
By: Rockefeller & Co., Inc., its Investment
Manager
By: ____________________________________________
Name: Xxxxxxx X. Xxxxx
Title: Chief Investment Officer
XXX PRIVATE EQUITY ENERGY FUND LP
By: XXX Equity Partners Limited, its General
Partner
By: ____________________________________________
Name: Xxxx Domanig
Title: Director
28
XXX SUSTAINABILITY PRIVATE EQUITY LP
By: XXX Equity Partners Limited, its General
Partner
By: ____________________________________________
Name: Xxxx Domanig
Title: Director
XXX XXXXX ENERGY
By: ____________________________________________
Name:
Title:
