SECOND AMENDMENT TO AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT dated July 1, 2011.
Exhibit 10.3
SECOND AMENDMENT TO AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT dated July 1, 2011.
WHEREAS the Corporation and certain of its shareholders are parties to an amended and restated registration rights agreement dated January 27, 2010 and amended as of April 25, 2011 (the “Original Agreement”);
WHEREAS concurrently herewith, the Corporation is issuing to Lighthouse Capital Partners VI, L.P. (“Lighthouse”) a warrant to acquire Class B Preferred Shares in the capital of the Corporation (the “Warrant”), in connection with which it has agreed to grant registration rights to Lighthouse;
WHEREAS section 2.9 of the Original Agreement contains limitations on the Corporation’s ability to grant registration rights;
WHEREAS pursuant to section 4.4 of the Original Agreement, the Original Agreement can be amended by the written consent of the Corporation and the Investors holding at least 66—2/3% of the total number of Registrable Securities then held by all Investors;
WHEREAS it is in the best interests of the Corporation to amend the Original Agreement in order to reflect the registration rights being granted to Lighthouse and to make certain other amendments in respect of Canadian securities laws;
NOW, THEREFORE:
1. Capitalized terms used but not otherwise defined herein have the meanings ascribed to such terms in the Original Agreement.
2. Amendment. The Original Agreement is hereby amended as follows:
(a) The following definitions are added to Section 1.1 of the Original Agreement:
“Lighthouse” means Lighthouse Capital Partners VI, L.P.;
“Warrant” means (i) in respect of ATEL, the warrant to acquire Series 3 Class A Preferred Shares issued to it on or about March 11, 2009 or (ii) in respect of Lighthouse, the warrant to acquire Class B Preferred Shares issued to it on or about July 1, 2011;
“Warrantholder” means ATEL or Lighthouse, as applicable;
(b) Section 4.1 of the Original Agreement is amended by deleting the word “ATEL” and replacing it with the words “the Warrantholders”.
(c) Section 4.2 of the Original Agreement is deleted and replaced by the following:
“4.2 Warrantholder Special Provision
Effective as of the date on which a Warrantholder or its permitted assignee, as applicable, exercises its Warrant in whole or in part in accordance with its terms (including payment in full of the exercise price provided for therein) and becomes a holder of Preferred Shares, but conditional upon such Warrantholder becoming a party to the Shareholders Agreement:
(a) the term “Investors” shall be deemed to include such Warrantholder or its permitted assignee, as applicable; and
(b) Schedule A shall be amended so as to add the name of such Warrantholder or its permitted assignee, as applicable, and the number, class and series of Preferred Shares held pursuant to such exercise.
A Warrantholder shall not, without the prior written consent of the Corporation, be entitled to assign this Agreement or any of its rights hereunder, in whole or in part, except (i) at any time prior to exercise of its Warrant, to a permitted transferee of such Warrant, concurrently with any such permitted transfer (provided that such permitted transferee agrees in writing to be bound by the provisions hereof by executing an acknowledgment and attornment substantially in the form of Schedule B hereto (mutatis mutandis) or (ii) at any time after exercise of its Warrant, in accordance with section 4.1 above.”
(d) Section 4.6 of the Original Agreement shall be deemed to include the following address information for Lighthouse (or, in the case of a permitted assignee of Lighthouse, such address information as shall be contained in the acknowledgment and attornment to be signed by such permitted assignee):
Lighthouse
0000 Xxxxxxx xx xxx Xxxxxx, Xxxxx 000
Xxxxx Xxxx, XX 00000
Attention: Contracts Administration
Facsimile: (000) 000-0000
3. Acknowledgment. Lighthouse hereby acknowledges receipt of a copy of the Original Agreement and that it has read and understands the provisions of the Original Agreement.
4. Attornment. Lighthouse hereby:
(a) attorns to and agrees to be bound as a party to the Original Agreement, as amended hereby, and to be subject to all of the rights and obligations of an Investor thereunder. By signing below, Lighthouse agrees that such signature constitutes a signature to the Original Agreement, as amended hereby;
(b) acknowledges and confirms that prior to executing this Agreement the Corporation requested the undersigned to obtain legal advice with respect to the undersigned’s rights and obligations under the Original Agreement, as amended hereby;
(c) has agreed to attorn to the Original Agreement, as amended hereby, of its own volition and without any duress whatsoever from the Corporation, the other Investors or any other Person; and
(d) if Lighthouse did not obtain legal advice prior to executing this Agreement, Lighthouse will not in any proceeding relating to the enforcement of rights or obligations under the Original Agreement, as amended hereby, raise that fact as a defence or otherwise.
5. On and after the effective date hereof, any reference to the “Agreement” in the Original Agreement and any reference to the Original Agreement in any other agreements will mean the Original Agreement, as amended by this amendment. Except as specifically amended by this amendment, the provisions of the Original Agreement remain in full force and effect.
6. This amendment is governed by the laws of the Province of Québec and the federal laws applicable therein.
7. This amendment may be executed in any number of counterparts and via facsimile, each of which shall be enforceable against the parties that execute such counterparts, and all of which together shall constitute one instrument.
[Signature Page Follows]
IN WITNESS WHEREOF the parties have executed this Second Amendment to the Amended and Restated Registration Rights Agreement.
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SC FUELS INC. | ||
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Per: |
/s/ Xxxxxxx Xxxxxxx | |
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Name: |
Xxxxxxx Xxxxxxx |
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Title: |
Director |
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BDR CAPITAL L.P., by its general partner, BDR Partners 1 L.P., itself represented by its general partner 9198-1209 Québec Inc. | ||
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Per: |
/s/ X. Xxxxxx | |
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Name: |
X. Xxxxxx |
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Title: |
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RV V HOLDINGS SRL | ||
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Per: |
/s/ Xxxxxx Xxxx | |
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Name: |
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Title: |
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XXX HOLDINGS SRL | ||
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Per: |
/s/ Xxxx Xxxxxx | |
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Name: |
Xxxx Xxxxxx |
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Title: |
Managing Partner |
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WASTE MANAGEMENT OF CANADA CORPORATION | ||
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Per: |
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Name: |
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Title: |
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RHO VENTURES VI LUXEMBOURG HOLDINGS, S.A.R.L. | ||
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Per: |
/s/ Xxxxxx Xxxx | |
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Name: |
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Title: |
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Per: |
/s/ Xxxxxx Xxxx | |
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Name: |
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Title: |
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CYCLE CAPITAL FUND I, L.P., by its general partner CYCLE CAPITAL, L.P., itself represented by its general partner CYCLE CAPITAL MANAGEMENT I INC. | ||
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Per: |
/s/ Xxxxxx-Xxxx Xxxxxx | |
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Name: |
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Title: |
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Per: |
/s/ Xxxxxxxxx Xxxxxx | |
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Name: |
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Title: |
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/s/ Xxxxxxx Xxxxxxx |
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XXXXXXX XXXXXXX |
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/s/ Xxxxxxx Xxxxxx |
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XXXXXXX XXXXXX |
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/s/ Xxxxxxx Xxxxxxx |
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XXXXXXX XXXXXXX |
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DIAMOND ALTERNATIVE ENERGY OF CANADA INC. | |
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Per: |
/s/ Xxxxxx Xxxxxxxxx |
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Name: Xxxxxx Xxxxxxxxx |
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Title: Vice President |
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ATEL VENTURES, INC., as trustee | |
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Per: |
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Name: |
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Title: |
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LIGHTHOUSE CAPITAL PARTNERS VI, L.P., by Lighthouse Management Partners VI, L.L.C., its general partner | |
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Per: |
/s/ Xxxx Xxxxxx |
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Name: |
Xxxx Xxxxxx |
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Title: |
Managing Director |
ATTORNMENT TO AMENDED AND RESTATED
REGISTRATION RIGHTS AGREEMENT
1. The undersigned hereby acknowledges:
a) receipt of a copy of the amended and restated registration rights agreement between Enerkem Inc. (the “Corporation”) and certain shareholders of the Corporation, as amended (the “Registration Rights Agreement”); and
b) that the undersigned has read and understands the provisions of the Registration Rights Agreement.
2. Capitalized terms used but not otherwise defined herein have the meanings attributed to such terms in the Registration Rights Agreement.
3. The undersigned hereby attorns to and agrees to be bound as a party to the Registration Rights Agreement and to be subject to all of the rights and obligations of an Investor. The undersigned, by signing below, agrees that such signature constitutes a signature to the Registration Rights Agreement.
4. The undersigned acknowledges and confirms that prior to executing this attornment agreement the Corporation requested the undersigned to obtain legal advice with respect to the undersigned’s rights and obligations under the Registration Rights Agreement; and, furthermore, the undersigned confirms and agrees that:
a) the undersigned has executed this attornment agreement on the undersigned’s own volition and without any duress whatsoever from the Corporation, the other Investors or any other Person; and
b) if the undersigned did not obtain legal advice prior to executing this attornment agreement, the undersigned will not in any proceeding relating to the enforcement of rights or obligations under the Registration Rights Agreement raise that fact as a defence or otherwise.
DATED the 5th day of July, 2011.
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FONDACTION, LE FONDS DE DÉVELOPPEMENT DE LA CONFÉDÉRATION DES SYNDICATS NATIONAUX POUR LA COOPÉRATION ET L’EMPLOI |
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/s/ Xxx Xxxxxxxx |
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Name: Xxx Xxxxxxxx |
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Title: Portfolio Manager |
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Name of Investor: |
FONDACTION, le Fonds de développement de la Confédération des syndicats nationaux pour la coopération de l’emploi | |
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Address of Investor: |
FONDACTION, le Fonds de développement de la Confédération des syndicats nationaux pour la coopération de l’emploi | |
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2175, boul. De Maisonneuve Est, bureau 103 | |
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Montréal, Québec | |
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H2K 4S3 | |
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Attention: |
Mr. Régent Watier |
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Facsimile: |
000-000-0000 |
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with a copy to, which shall not constitute notice to Investor: | |
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Xxxxxxx Avocats LLP | |
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500 Place x’Xxxxx, bureau 2420 | |
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Xxxxxxxx, Xxxxxx | |
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X0X 0X0 | |
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Attention: |
Me Xxxx Xxxxxxx |
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Facsimile: |
(000) 000-0000 |
ATTORNMENT TO AMENDED AND RESTATED
REGISTRATION RIGHTS AGREEMENT
1. The undersigned hereby acknowledges:
a) receipt of a copy of the amended and restated registration rights agreement between Enerkem Inc. (the “Corporation”) and certain shareholders of the Corporation, as amended (the “Registration Rights Agreement”); and
b) that the undersigned has read and understands the provisions of the Registration Rights Agreement.
2. Capitalized terms used but not otherwise defined herein have the meanings attributed to such terms in the Registration Rights Agreement.
3. The undersigned hereby attorns to and agrees to be bound as a party to the Registration Rights Agreement and to be subject to all of the rights and obligations of an Investor. The undersigned, by signing below, agrees that such signature constitutes a signature to the Registration Rights Agreement.
4. The undersigned acknowledges and confirms that prior to executing this attornment agreement the Corporation requested the undersigned to obtain legal advice with respect to the undersigned’s rights and obligations under the Registration Rights Agreement; and, furthermore, the undersigned confirms and agrees that:
a) the undersigned has executed this attornment agreement on the undersigned’s own volition and without any duress whatsoever from the Corporation, the other Investors or any other Person; and
b) if the undersigned did not obtain legal advice prior to executing this attornment agreement, the undersigned will not in any proceeding relating to the enforcement of rights or obligations under the Registration Rights Agreement raise that fact as a defence or otherwise.
DATED the 8th day of July, 2011.
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QUINCE ASSOCIATES L.P., by Evensong, LLC, its general partner |
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/s/ Xxxx X. Xxxx, Xx. |
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Name: Xxxx X. Xxxx, Xx |
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Title: Manager |
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Name of Investor: |
Quince Associates, L.P. | |
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Address of Investor: |
000 X Xxxxxxxxx Xxxx, xxxxx 0000 | |
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Xxxxxxxx, XX 00000 | |
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Attention: |
Xxxx Xxxx |
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Facsimile: |
(000) 000-0000 |
ATTORNMENT TO AMENDED AND RESTATED
REGISTRATION RIGHTS AGREEMENT
1. The undersigned hereby acknowledges:
a) receipt of a copy of the amended and restated registration rights agreement between Enerkem Inc. (the “Corporation”) and certain shareholders of the Corporation, as amended (the “Registration Rights Agreement”); and
b) that the undersigned has read and understands the provisions of the Registration Rights Agreement.
2. Capitalized terms used but not otherwise defined herein have the meanings attributed to such terms in the Registration Rights Agreement.
3. The undersigned hereby attorns to and agrees to be bound as a party to the Registration Rights Agreement and to be subject to all of the rights and obligations of an Investor. The undersigned, by signing below, agrees that such signature constitutes a signature to the Registration Rights Agreement.
4. The undersigned acknowledges and confirms that prior to executing this attornment agreement the Corporation requested the undersigned to obtain legal advice with respect to the undersigned’s rights and obligations under the Registration Rights Agreement; and, furthermore, the undersigned confirms and agrees that:
a) the undersigned has executed this attornment agreement on the undersigned’s own volition and without any duress whatsoever from the Corporation, the other Investors or any other Person; and
b) if the undersigned did not obtain legal advice prior to executing this attornment agreement, the undersigned will not in any proceeding relating to the enforcement of rights or obligations under the Registration Rights Agreement raise that fact as a defence or otherwise.
DATED the 11th day of July, 2011.
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XXXXXX CAPITAL PARTNERS FUND I, L.P., as nominee for itself and XXXXXX CAPITAL PARTNERS AFFILIATES FUND, L.P., hereby acting through its general partner, XXXXXX CAPITAL ASSOCIATES, LLC |
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/s/ Xxxxxxx X. Xxxxxx |
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Name: Xxxxxxx X. Xxxxxx |
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Title: Managing Partner |
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Name of Investor: |
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XXXXXX CAPITAL PARTNERS FUND I, L.P., as nominee for itself and WESTLY CAPITAL PARTNERS AFFILIATES FUND, L.P. | |
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Address of Investor: |
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0000 Xxxx Xxxx Xxxx | |
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Attention: |
Xxxxxxx Xxxxxxx |
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Facsimile: |
(000) 000-0000 |
ATTORNMENT TO AMENDED AND RESTATED
REGISTRATION RIGHTS AGREEMENT
1. The undersigned hereby acknowledges:
a) receipt of a copy of the amended and restated registration rights agreement between Enerkem Inc. (the “Corporation”) and certain shareholders of the Corporation, as amended (the “Registration Rights Agreement”); and
b) that the undersigned has read and understands the provisions of the Registration Rights Agreement.
2. Capitalized terms used but not otherwise defined herein have the meanings attributed to such terms in the Registration Rights Agreement.
3. The undersigned hereby attorns to and agrees to be bound as a party to the Registration Rights Agreement and to be subject to all of the rights and obligations of an Investor. The undersigned, by signing below, agrees that such signature constitutes a signature to the Registration Rights Agreement.
4. The undersigned acknowledges and confirms that prior to executing this attornment agreement the Corporation requested the undersigned to obtain legal advice with respect to the undersigned’s rights and obligations under the Registration Rights Agreement; and, furthermore, the undersigned confirms and agrees that:
a) the undersigned has executed this attornment agreement on the undersigned’s own volition and without any duress whatsoever from the Corporation, the other Investors or any other Person; and
b) if the undersigned did not obtain legal advice prior to executing this attornment agreement, the undersigned will not in any proceeding relating to the enforcement of rights or obligations under the Registration Rights Agreement raise that fact as a defence or otherwise.
5. This Attornment to Amended and Restated Registration Rights Agreement is effective as of July 25, 2011.
DATED the 11th day of July, 2011.
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XXXXXX CAPITAL PARTNERS FUND II, L.P., as nominee for itself and XXXXXX CAPITAL PARTNERS AFFILIATES FUND, L.P., hereby acting through its general partner, XXXXXX CAPITAL ASSOCIATES, LLC |
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/s/ Xxxxxxx X. Xxxxxx |
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Name: Xxxxxxx X. Xxxxxx |
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Title: Managing Partner |
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Name of Investor: |
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Xxxxxx Capital Partners Fund II, L.P., as nominee for itself and Westly Capital Partners Affiliates Fund, L.P. | |
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Address of Investor: |
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0000 Xxxx Xxxx Xxxx | |
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Attention: |
Xxxxxxx Xxxxxxx |
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Facsimile: |
(000) 000-0000 |
