EXHIBIT 3
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AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
This AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT, dated as of
June 21, 2004 (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, L.P. ("RP CO-INVESTMENT"),
Xx. Xxxxxx X. Xxxx ("Xxxx"), Xxxxxx 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"),
Xxxxxxx Xxxxx New Energy Technology plc ("XXXXXXX XXXXX NEW ENERGY FUND"), MLIIF
New Energy Fund ("MLIIF"), XXX Private Equity Energy Fund LP ("XXX ENERGY FUND")
and XXX Sustainability Private Equity LP ("XXX PRIVATE EQUITY" and together with
Perseus, Nth Power, Rockport, RP Co-Investment, Xxxx, CDP, CDP Capital, Beacon,
MTPC, Xxxxxxx Xxxxx New Energy Fund, MLIIF, and XXX Energy Fund 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, the Company and the Investors are parties to that certain
Registration Rights Agreement dated as of May 15, 2003 (the "EXISTING
REGISTRATION RIGHTS AGREEMENT") and the parties thereto desire to amend and
restate such Existing Registration Rights Agreement in its entirety;
WHEREAS, pursuant to the Stock and Warrant Purchase Agreement, dated
March 21, 2003 (the "PURCHASE AGREEMENT"), among the Company and the Investors,
the Company agreed to issue and sell (a) to the Investors, an aggregate of
26,227,668 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);
WHEREAS, pursuant to that certain Stock and Warrant Purchase Agreement
dated on or about June 15, 2004 (the "Common Stock Purchase Agreement"), the
Company has agreed to issue and sell to certain investors that are a party
thereto (collectively, the "Common Stock Holders") an aggregate of 7,662,835
shares of Common Stock (the "Common Shares"), and (b) warrants to purchase an
aggregate of 2,298,851 shares of Common Stock at an exercise price of $3.335 per
share, subject to adjustment (collectively, the "Common Stock Warrants"); and to
enter into a registration rights agreement with the Common Stock Investors
pursuant to which the Company will grant the Common Stock Investors certain
registration rights with respect to the Common Shares and the shares of Common
Stock issuable upon exercise of the Common Stock Warrants (the "Common Stock
Registration Rights Agreement"); and
WHEREAS, the Company has agreed to enter into the Common Stock
Registration Rights Agreement and to amend and restate the Existing Registration
Rights
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Agreement as provided herein as a condition to the consummation of the
transactions contemplated by the Common Stock Purchase 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:
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 Shares" has the meaning set forth in the preamble to this
Agreement and shall also include any transferee thereof.
"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
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and any option, warrant or other subscription or purchase right with respect to
Common Stock or any Common Stock Equivalent.
"COMMON STOCK HOLDERS" has the meaning set forth in the recitals to
this Agreement.
"COMMON STOCK WARRANTS" has the meaning set forth in the recitals to
this Agreement.
"COMMON STOCK PURCHASE AGREEMENT" has the meaning set forth in the
recitals to this Agreement.
"COMMON STOCK REGISTRATION RIGHTS AGREEMENT" has the meaning set forth
in the recitals to this Agreement.
"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 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.
"EXISTING REGISTRATION RIGHTS AGREEMENT" has the meaning set forth in
the recitals to this Agreement.
"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.
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"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 COMMON SHARES" has the meaning set forth in the Common
Stock Registration Rights Agreement.
"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.
"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.
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"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)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 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. On July 30, 2003 a shelf
registration statement pursuant to Rule 415 of the Securities Act (the "SHELF
REGISTRATION STATEMENT")
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on Form S-3 covering the resale, from time to time, of all of the Registrable
Securities held by the Investors was declared effective by the Commission.
3.2 EFFECTIVE SHELF REGISTRATION STATEMENT. The Company 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) of the Securities Act (or any similar
provision then in force), 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 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
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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 to all of the Common
Stock Holders, if then required to do so pursuant to Section 3(a) of the Common
Stock Registration Rights Agreement, (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 and all Registrable
Common Shares held by such Common Stock Holders from whom the Company has
received a written request for inclusion therein within 10 Business Days of the
receipt by such Common Stock Holders of the written notice required pursuant to
Section 3(a) of the Common Stock Registration Rights Agreement. 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 (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.
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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 and Registrable Common Shares, if any, offered for the
account of the Common Stock Holders pursuant to Section 3(a) of the Common Stock
Registration Rights Agreement 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 and such number of Registrable Common Shares, if
any, offered for the account of the Common Stock Holders pursuant to Section
3(a) of the Common Stock Registration Rights Agreement, which Registrable
Securities and Registrable Common Shares shall be allocated PRO RATA among such
Initiating Holders, the Designated Holders and the Common Stock Holders, based
on the number of Registrable Securities or Registrable Common Shares, as the
case may be, requested to be included in such offering by each such Initiating
Holder, Designated Holder or Common Stock Holder, as the case may be, 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.
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
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"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, any
Registration Statement filed pursuant to subsection 8(c) of the Series D
Purchase Agreement, or the shelf registration statement to be filed on behalf of
the Common Stock Holders pursuant to Section 2(a) of the Common Stock
Registration Rights 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, the Registrable
Shares to be offered for the account of the Stockholders pursuant to Section
8(d) of the Series D Purchase Agreement, and the Registrable Common Shares to be
offered for the account of the Common Stock Holders pursuant to Section 3(a) of
the Common Stock Registration Rights Agreement, as a group, which Registrable
Securities, Registrable Shares and Registrable Common Shares shall be allocated
PRO RATA among such Designated Holders, the Stockholders and the Common Stock
Holders based on the number of Registrable Securities, Registrable Shares or
Registrable Common Shares, as the case may be,
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requested to be included in such offering by each such Designated Holder,
Stockholder or Common Stock Holder, 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) and to all of the Common Stock Holders, if
then required to do pursuant to Section 3(a) of the Common Stock Registration
Rights Agreement, 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 and offer such
Common Stock Holders the opportunity to register the number of Registrable
Common Shares as such Common Stock 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
and the Registrable Common Shares of the Common Stock 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
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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.
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 and the Registrable
Common Shares, if any, offered for the account of the Common Stock Holders
pursuant to Section 3(a) of the Common Stock Registration Rights Agreement 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, and such number of Registrable Common
Shares, if any, offered for the account of the Common Stock Holders pursuant to
Section 3(a) of the Common Stock Registration Rights Agreement which Registrable
Securities and Registrable Common Shares shall be allocated PRO RATA among such
S-3 Initiating Holders, such other Designated Holders and the Common Stock
Holders, based on the number of Registrable Securities or Registrable Common
Shares, as the case may be, requested to be included in such offering by each
such S-3 Initiating Holder, the Designated Holder and the Common Stock Holders,
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
12
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 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
13
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 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 of the Securities Act (or any similar provision then in
force), 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;
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(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
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;
15
(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 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
16
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;
(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).
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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, 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
18
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 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
19
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 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
20
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 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. Except as expressly set
forth herein, 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
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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 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.
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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.
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
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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 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.
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IN WITNESS WHEREOF, the undersigned have executed, or have
caused to be executed, this Amended and Restated Registration Rights Agreement
on the date first written above.
EVERGREEN SOLAR, INC.
By: /s/
--------------------------------
Name:
Title:
[Signature Page - Registration Rights Agreement]
