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EXHIBIT 10.2
REGISTRATION RIGHTS AGREEMENT
This REGISTRATION RIGHTS AGREEMENT (the "Agreement") is made and
entered into as of October 8, 1997, by and among BOLDER Technologies
Corporation, a Delaware corporation (the "Company") and BT Alex. Xxxxx
Incorporated (the "Initial Purchaser") pursuant to the Purchase Agreement dated
as of October 3, 1997 between the Company and the Initial Purchaser (the
"Purchase Agreement") for the purchase of 336,200 shares of the Company's
Series A Convertible Preferred Stock (the "Preferred Stock"). In order to
induce the Initial Purchaser to enter into the Purchase Agreement, the Company
has agreed to provide the registration rights set forth in this Agreement. The
execution of this Agreement is a condition to the closing under the Purchase
Agreement.
The Company agrees with the Initial Purchaser, (i) for its benefit as
Initial Purchaser and (ii) for the benefit of the holders from time to time of
the Preferred Stock (including the Initial Purchaser) and the holders from time
to time of the Common Stock issued upon conversion of the Preferred Stock (each
of the foregoing a "Holder" and together the "Holders"), as follows:
1. Definitions. Capitalized terms used herein without definition
shall have their respective meanings set forth in the Purchase Agreement. As
used in this Agreement, the following terms shall have the following meanings:
Affiliate: "Affiliate" means, with respect to any specified person,
(i) any other person directly or indirectly controlling or controlled by, or
under direct or indirect common control with, such specified person or (ii) any
officer or director of such other person. For purposes of this definition, the
term "control" (including the terms "controlling," "controlled by" and "under
common control with") of a person means the possession direct or indirect, of
the power (whether or not exercised) to direct or cause the direction of the
management and policies of a person, whether through the ownership of voting
securities, by contract, or otherwise.
Business Day: Each Monday, Tuesday, Wednesday, Thursday and Friday
that is not a day on which banking institutions in the City of New York are
authorized or obligated by law or executive order to close.
Effectiveness Period: The period commencing with the date hereof and
ending on the earlier of the date that is two years after the later of the
initial date of original issuance of the Preferred Stock and the date that all
Registrable Securities have ceased to be Registrable Securities.
Effectiveness Target Date: See Section 2(a) hereof.
Exchange Act: The Securities Exchange Act of 1934, as amended, and the
rules and regulations of the SEC promulgated thereunder.
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Filing Date: See Section 2(a) hereof.
Holder: See the second paragraph of this Agreement.
Initial Purchaser: See the first paragraph of this Agreement.
Initial Shelf Registration: See Section 2(a) hereof.
Losses: See Section 5 hereof.
Majority of Registrable Securities: A majority of the then outstanding
aggregate principal amount of Registrable Securities. For purposes of this
calculation, Registrable Securities which have been converted into shares of
Common Stock shall be deemed to bear the principal amount at which such
Registrable Securities were converted.
Prospectus: The prospectus included in any Registration Statement
(including, without limitation, a prospectus that discloses information
previously omitted from a prospectus filed as part of an effective registration
statement in reliance upon Rule 430A promulgated under the Securities Act), as
amended or supplemented by any amendment or prospectus supplement, including
post-effective amendments, and all material incorporated by reference or deemed
to be incorporated by reference in such Prospectus.
Purchase Agreement: See the first paragraph of this Agreement.
Record Holder: With respect to any Damages Payment Date relating to
the Common Stock, each Person who is a registered holder of Common Stock 15
days prior to such Damages Payment Date.
Registrable Securities: The Preferred Stock and each share of Common
Stock into which the Preferred Stock is convertible or converted upon original
issuance thereof, and at all times subsequent thereto, and any Common Stock or
Preferred Stock issued with respect thereto upon any stock dividend, split or
similar event, until, in the case of any share of Common Stock or Preferred
Stock, (i) it is effectively registered under the Securities Act and disposed
of in accordance with the Registration Statement covering it, (ii) it is
salable by the holder thereof pursuant to Rule 144(k) or (iii) it is sold to
the public pursuant to Rule 144, and, as a result of the event or circumstance
described in any of the foregoing clauses (i) through (iii), the legends with
respect to transfer restrictions required under the Purchase Agreement (other
than any such legends required solely as the consequences or the fact that the
Registrable Securities are owned by, or were previously owned by, the Company
or an Affiliate of the Company) are removed or removable in accordance with the
terms of the Purchase Agreement.
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Registration Expenses: See Section 5 hereof.
Registration Statement: Any registration statement of the Company
which covers any of the Registrable Securities pursuant to the provisions of
this Agreement, including the Prospectus, amendments and supplements to such
registration statement, including post-effective amendments, all exhibits, and
all material incorporated by reference or deemed to be incorporated by
reference in such registration statement.
Rule 144: Rule 144 under the Securities Act, as such Rule may be
amended from time to time, or any similar rule or regulations hereafter adopted
by the SEC.
Rule 144A: Rule 144A under the Securities Act, as such Rule may be
amended from time to time, or any similar rule or regulation hereafter adopted
by the SEC.
SEC: The Securities and Exchange Commission.
Securities Act: The Securities Act of 1933, as amended, and the rules
and regulations promulgated by the SEC thereunder.
Selling Holder: A Holder offering to sell Registrable Securities.
Shelf Registration: See Section 2(a) hereof.
Special Counsel: Piper & Marbury L.L.P., or such other successor
counsel as shall be specified by the Holders of a majority of the Registrable
Securities, the fees and expenses of which will be paid by the Company pursuant
to Section 5 hereof.
Subsequent Shelf Registration: See Section 2(b) hereof.
Suspension Period: See Section 2(c).
2. Shelf Registration.
(a) The Company shall prepare and file with the SEC, as
soon as practicable but in any event on or prior to the date 60 days following
the latest date of original issuance of the Preferred Stock (the "Filing
Date"), a Registration Statement for an offering to be made on a continuous
basis pursuant to Rule 415 of the Securities Act (a "Shelf Registration")
registering the resale from time to time by Holders thereof of all of the
Registrable Securities (the "Initial Shelf Registration"). The Initial Shelf
Registration shall be on an appropriate SEC Registration Statement form
permitting registration of such Registrable Securities for resale by such
Holders in the manner or manners designated by them. The Company shall use its
best efforts to cause the Initial Shelf Registration to be declared effective
under the Securities Act as soon as practicable but in any event on or prior to
the date 90 days following the Filing Date (the "Effectiveness Target Date"),
and shall use its best efforts to keep the Initial Shelf Registration
continuously effective under the Securities Act, subject to the provisions of
Section 2(c), until
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the earlier of the expiration of the Effectiveness Period or the date a
Subsequent Shelf Registration (as defined below) covering all of the
Registrable Securities has been declared effective under the Securities Act.
Subject to the right of the Company to have the Initial Shelf Registration not
be effective, or not to be updated, amended or supplemented, for periods of
time set forth in Section 2(c), the Company further agrees to use its best
efforts to prevent the happening of any event that would cause the Initial
Shelf Registration to contain a material misstatement or omission or to be not
effective and usable for resale of the Registrable Securities during the
Effective Period.
(b) If the Initial Shelf Registration or any subsequent
Shelf Registration ceases to be effective for any reason as a result of the
issuance of a stop order by the SEC at any time during the Effectiveness
Period, the Company shall use its best efforts to obtain the prompt withdrawal
of any order suspending the effectiveness thereof, and in any event shall
within 30 days of such cessation of effectiveness amend the Shelf Registration
in a manner reasonably expected to obtain the withdrawal of the order
suspending the effectiveness thereof, or file an additional Shelf Registration
covering all of the Registrable Securities (a "Subsequent Shelf Registration").
If a Subsequent Shelf Registration is filed, the Company shall use its best
efforts to cause the Subsequent Shelf Registration to be declared effective as
soon as practicable after such filing and to keep such Registration Statement
continuously effective until the end of the Effectiveness Period.
(c) In the event (A) of the happening of any event of the
kind described in Section 3(c)(ii), 3(c)(iii), 3(c)(iv), 3(c)(v) or 3(c)(vi)
hereof or (B) that, in the good faith judgment of the Company, it is advisable
to suspend the use of the Prospectus for a discrete period of time due to
pending material corporate developments or similar material events that have
not yet been publicly disclosed and as to which the Company believes public
disclosure will be prejudicial to the Company, the Company shall deliver a
certificate in writing, signed by an authorized executive officer of the
Company, to the Special Counsel and the Initial Purchaser, to the effect of the
foregoing and thereafter the use of the Prospectus shall be suspended, and the
Company, subject to the terms of this Section 2(c), shall thereafter not be
required to maintain the effectiveness or update the Shelf Registration. The
Company will use its best efforts to ensure that the use of the Prospectus may
be resumed as soon as practicable, in the case of suspension under Section
2(c)(A), and, in the case of a pending development or event referred to in
Section 2(c)(B) hereof, as soon as, in the good faith-judgment of the Company,
public disclosure of such material corporate development or similar material
event would not have a material adverse effect on the Company. Notwithstanding
the foregoing, the Company shall not under any circumstances be entitled to
exercise its right under this Section 2(c) to suspend the use of the Prospectus
(whether as a result of events referred to in Section 2(c)(A) hereof or as a
result of the pending development or event referred to in Section 2(c)(B)
hereof) more than one (1) time in any three (3) month period, and the periods
in which the use of the Prospectus is suspended shall not exceed 30 days in any
three-month period (a "Suspension Period").
3. Registration Procedures. In connection with the Company's
registration obligations under Section 2 hereof, the Company shall effect such
registrations to permit the sale
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of the Registrable Securities in accordance with the intended method or methods
of disposition thereof, and pursuant thereto the Company shall as expeditiously
as possible:
(a) Prepare and file with the SEC a Registration
Statement or Registration Statements on any appropriate form under the
Securities Act available for the sale of the Registrable Securities by the
Holders thereof in accordance with the intended method or methods of
distribution thereof and shall include all required financial statements, and
use its best efforts to cause each such Registration Statement to become
effective and remain effective as provided herein; provided, that before filing
any such Registration Statement or Prospectus or any amendments or supplements
thereto the Company shall furnish within a reasonable time period to each
Selling Holder (if requested by such Selling Holder), the Initial Purchaser,
the Special Counsel and the Managing Underwriters of such offering, if any,
copies of all such documents proposed to be filed, which documents will be
subject to the review of each Selling Holder (if requested by such Selling
Holder), the Initial Purchaser, the Special Counsel and such Managing
Underwriters, and the Company shall not file any such Registration Statement or
amendment thereto or any Prospectus or any supplement thereto to which the
Holders of a majority of the Registrable Securities covered by such
Registration Statement, the Initial Purchaser or the Special Counsel shall
reasonably object in writing within five Business Days after the receipt
thereof. In addition, the Company shall use its best efforts to reflect in each
such document referenced in this paragraph so filed with the SEC such comments
as the Initial Purchaser, Special Counsel and the Managing Underwriters, if
any, may propose.
(b) Subject to Section 2(c), prepare and file with the
SEC such amendments and post-effective amendments to each Registration
Statement as may be necessary to keep such Registration Statement continuously
effective for the applicable period specified in Section 2; cause the related
Prospectus to be supplemented by any required Prospectus supplement, and as so
supplemented to be filed pursuant to Rule 424 (or any similar provisions then
in force) under the Securities Act and comply with the provisions of the
Securities Act with respect to the disposition of all securities covered by
such Registration Statement during the applicable period in accordance with the
intended methods or disposition by the sellers thereof set forth in such
Registration Statement as so amended or such Prospectus as so supplemented. The
Company shall ensure that (i) any Shelf Registration and any amendment thereto
and any Prospectus forming a part thereof and any amendment or supplement
thereto complies in all material respects with the Act and the rules and
regulations thereunder, (ii) any Shelf Registration and any amendment thereto
does not, when it becomes effective, contain an untrue statement of a material
fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading and (iii) any Prospectus forming part of
any Shelf Registration, and any amendment or supplement to such Prospectus,
does not include an untrue statement or a material fact or omit to state a
material fact necessary in order to make the statements therein, in the light
of the circumstances under which they were made, not misleading.
(c) Notify the Holders, the Initial Purchaser, the
Special Counsel and the Managing Underwriters, if any, promptly, and (if
requested by any such person) confirm such
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notice in writing, (i) when a Prospectus, any Prospectus supplement, a
Registration Statement or a post-effective amendment to a Registration
Statement has been filed with the SEC, and, with respect to a Registration
Statement or any post-effective amendment, when the same has become effective;
(ii) of any request by the SEC 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 SEC 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 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 the 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 the light of the circumstances under which
they were made, not misleading, and (vi) of the Company's determination that a
post-effective amendment to a Registration Statement would be appropriate.
(d) Use its best efforts to obtain the withdrawal of any
order suspending the effectiveness of a Registration Statement, or the lifting
of any suspension of the qualification (or exemption from qualification) of any
of the Registrable Securities for sale in any jurisdiction, at the earliest
possible moment.
(e) If requested by the Initial Purchaser or the Holders
of a Majority of the Registrable Securities being sold, (i) promptly
incorporate in a Prospectus supplement or post-effective amendment to
Registration Statement such information as the Initial Purchaser, the Special
Counsel, or such Holders and the Company agree should be included therein, and
(ii) make all required filings of such Prospectus supplement or such
post-effective amendment as soon as practicable after the Company has received
notification of the matters proposed to be incorporated in such Prospectus
supplement or post-effective amendment.
(f) Furnish to each Selling Holder (if requested by such
Selling Holder), the Special Counsel, the Initial Purchaser, and each Managing
Underwriter, if any, without charge, at least one conformed copy of the
Registration Statement or Statements and any amendment thereto, including
financial statements but excluding schedules, all documents incorporated or
deemed to be incorporated therein by reference and all exhibits.
(g) Deliver to each Selling Holder, the Special Counsel
and the Initial Purchaser in connection with any offering of Registrable
Securities, without charge, as many copies of the Prospectus or Prospectuses
relating to such Registrable Securities (including each
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preliminary prospectus) and any amendment or supplement thereto as such persons
may reasonably request; and the Company hereby consents to the use of such
Prospectus or each amendment or supplement thereto by each of the Selling
Holders of Registrable Securities and the Underwriters, if any, in connection
with any offering and sale of the Registrable Securities covered by such
Prospectus or any amendment or supplement thereto.
(h) Prior to any public offering of Registrable
Securities, to register or qualify or cooperate with the Selling Holders and
the Special Counsel in connection with any registration or qualification (or
exemption from such registration or qualification) of such Registrable
Securities for offer and sale under the securities or Blue Sky laws of such
jurisdictions within the United States as any Managing Underwriter reasonably
requests in writing, keep each such registration or qualification (or exemption
therefrom) effective during the period such Registration Statement is required
to be kept effective and do any and all other acts or things necessary or
advisable to enable the disposition in such jurisdictions of the Registrable
Securities covered by the applicable Registration Statement, provided, that the
Company will not be required to (i) qualify generally to do business in any
jurisdiction where it is not then so qualified (ii) take any action that would
subject it to general service of process in suits or to taxation in any such
jurisdiction where it is not then so subject.
(i) Cause the Registrable Securities covered by the
applicable Registration Statement to be registered with or approved by such
other governmental agencies in addition to the SEC or authorities within the
United States as may be necessary to enable the Selling Holder or Holders
thereof to consummate the disposition of such Registrable Securities.
(j) During the Effectiveness Period (subject to the
provisions of Section 2(c)), immediately upon the existence of any fact or the
occurrence of any event as a result of which a Registration Statement shall
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, or a
Prospectus shall 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 the light of the circumstances under which they were
made, not misleading, promptly prepare and file a post-effective amendment to
each Registration Statement or a supplement to the related Prospectus or any
document incorporated therein by reference or file any other required document
(such as a Current Report on Form 8-K) that would be incorporated by reference
into the Registration Statement so that the Registration Statement shall 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, in light of the circumstances under which they were made, and
so that the Prospectus 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 the light of the circumstances under which
they were made, not misleading, as thereafter delivered to the purchasers of
the Registrable Securities being sold thereunder, and in the case of a
post-effective amendment to a Registration Statement use its best efforts to
cause it to become effective as soon as practicable.
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(k) Enter into such agreements and take all such other
actions in connection therewith in order to expedite or facilitate the
disposition of such Registrable Securities and in such connection, whether or
not an underwriting agreement is entered into.
(l) Make available for inspection by a representative of
the Holders of Registrable Securities being sold and any attorney or accountant
retained by such Selling Holders or underwriter, financial and other records,
pertinent corporate documents and properties of the Company and its
subsidiaries, and cause the executive officers, directors and employees of the
Company and its subsidiaries to supply all information reasonably requested by
any such representative, attorney or accountant in connection with such
disposition; provided, however, that any information that is reasonably and in
good faith designated by the Company in writing as confidential at the time of
delivery of such information shall be kept confidential by such persons, unless
(i) disclosure of such information is required by court or administrative order
or is necessary to respond to inquiries of regulatory authorities, (ii)
disclosure of such information is required by law (including any disclosure
requirements pursuant to federal securities laws in connection with the filing
of any Registration Statement or the use of any prospectus referred to in this
Agreement), (iii) such information becomes generally available to the public
other than as a result of disclosure or failure to safeguard by any such person
or (iv) such information becomes available to any such person from a source
other than the Company and such source is not bound by a confidentiality
agreement.
(m) Comply with all applicable rules and regulations of
the SEC in all material respects and make generally available to its
securityholders earning statements (which need not be audited) satisfying the
provisions of Section 11(a) of the Securities Act and Rule 158 thereunder (or
any similar rule promulgated under the Securities Act) no later than 45 days
after the end of any 12-month period (or 90 days after the end of any 12-month
period if such period is a fiscal year) (i) commencing at the end of any fiscal
quarter in which Registrable Securities are sold to underwriters in firm
commitment or best efforts underwritten offering and (ii) if not sold to
underwriters in such an offering, commencing on the first day of the first
fiscal quarter of the Company commencing after the effective date of a
Registration Statement, which statements shall cover said 12-month periods.
(n) Cooperate with the Selling Holders of Registrable
Securities, the Initial Purchaser and the Special Counsel to facilitate the
timely preparation and delivery of certificates representing Registrable
Securities to be sold and not bearing any restrictive legends; and enable such
Registrable Securities to be in such denominations and registered in such names
as the Holders may request.
(o) Not later than the effectiveness date of any
Registration Statement hereunder, provide a CUSIP number for the Registrable
Securities registered under such Registration Statement, and provide the
transfer agent for the Common Stock with printed certificates for the
Registrable Securities which are in a form eligible for deposit with The
Depository Trust Company.
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(p) Cause all shares of Common Stock covered by the
Registration Statement to be listed or quoted on, each securities exchange or
quotation system on which the Company's Common Stock is then listed or quoted
no later than the date the Registration Statement is declared effective, and,
in connection therewith, to the extent applicable, to make such findings under
the Exchange Act (e.g., the filing of a Registration Statement on Form 8-A) and
to have such filings declared effective thereunder.
(q) Cooperate and assist in any filing required to be
made with the National Association of Securities Dealers, Inc.
The Company may require each Holder of securities to be sold pursuant
to any Registration Statement to furnish to the Company such information
regarding the Holder and the distribution of such securities as the Company may
from time to time reasonably require for inclusion in such Registration
Statement. Any Holder who fails to provide such information shall not be
entitled to use the Prospectus.
4. Registration Expenses. All fees and expenses incident to the
Company's obligations under this Agreement shall be borne by the Company
whether or not any of the Registration Statements become effective. Such fees
and expenses shall include, without limitation, (i) all registration and filing
fees (including, without limitation, fees and expenses with respect to filings
required to be made with the National Association of Securities Dealers, Inc.),
(ii) printing expenses (including, without limitation, expenses of printing
certificates for Registrable Securities in a form eligible for deposit with The
Depository Trust Company, (iii) reasonable fees and disbursements of counsel
for the Company and the Special Counsel in connection with the Shelf
Registration (provided that the Company shall not be liable for the fees and
expenses of more than one separate firm for all parties (other than the
Company) participating in any transaction hereunder), and (iv) fees and
disbursements of all independent certified public accountants referred to in
Section 3(k)(iii) hereof (including the expenses of any special audit and "cold
comfort" letters required by or incident to such performance). In addition, the
Company shall pay the fees and expenses incurred in connection with the listing
or quotation of the securities to be registered on any securities exchange or
quotations system on which similar securities issued by the Company are then
listed and the fees and expenses of any person, including special experts,
retained by the Company.
5. Indemnification.
(a) Indemnification by the Company. The Company shall
indemnify and hold harmless each Holder, the directors, officers and employees
of each such Holder and each person, if any, who controls any such Holder
(within the meaning of either Section 15 of the Securities Act or Section 20 of
the Exchange Act) from and against all losses, liabilities, damages and
expenses (including without limitation, any legal or other expenses reasonably
incurred in connection with defending or investigating any such action or
claim) (collectively, "Losses"), arising out of or based upon any untrue
statement or alleged untrue statement of a material fact contained in any
Registration Statement or Prospectus or in any amendment or
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supplement thereto, or 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 they were made, except insofar as such Losses arise
out of or are based upon the information relating to any Holder furnished to
the Company in writing by any Holder expressly for use therein. The Company
shall also indemnify each underwriter, their officers and directors, and each
person who controls such person (within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act to the same extent and with
the same limitations as provided above with respect to the indemnification of
the Holders or Registrable Securities.
(b) Indemnification by Holder of Registrable Securities.
Each Holder, agrees severally and not jointly to indemnify and hold harmless
the Company, its directors, its officers who sign a Registration Statement and
each person, if any, who controls the Company (within the meaning of either
Section 15 of the Securities Act or Section 20 of the Exchange Act), from and
against all losses arising out of or based upon any untrue statement of a
material fact contained in any Registration Statement, Prospectus or arising
out of or based upon any omission of a material fact required to be stated
therein or necessary to make the statements therein not misleading, in light of
the circumstances under which they were made, to the extent, but only to the
extent, that such untrue statement or omission is contained in any information
relating to such Holder so furnished in writing by such Holder to the Company
expressly for use in such Registration Statement or Prospectus. In no event
shall the liability of any Selling Holder of Registrable Securities hereunder
be greater in amount than the dollar amount of the proceeds received by such
Holder upon the sale of the Registrable Securities giving rise to such
indemnification obligation.
(c) Conduct of Indemnification Proceedings. In case any
proceeding (including any governmental investigation) shall be instituted
involving any person in respect of which indemnity may be sought pursuant to
either of the two preceding paragraphs, such person (the "indemnified party")
shall promptly notify the person against whom such indemnity may be sought (the
"indemnifying party") in writing, but failure so to notify an indemnifying
party shall not relieve such indemnifying party from any liability hereunder to
the extent it is not materially prejudiced as a result thereof. The
indemnifying party, upon request of the indemnified party, shall retain counsel
satisfactory to the indemnified party to represent the indemnified party and
any others the indemnifying party may designate in such proceeding and shall
pay the fees and disbursements of such counsel related to such proceeding. In
any such proceeding, any indemnified party shall have the right to retain its
own counsel, but the fees and expenses of such counsel shall be at the expense
of such indemnified party unless (i) the indemnifying party and the indemnified
party shall have mutually agreed to the retention to such counsel (ii) the
named parties to any such proceeding (including any impleaded parties) include
both the indemnifying party and the indemnified party and representation of
both parties by the same counsel would be inappropriate due to actual or
potential differing interests between them, or (iii) the indemnifying party
shall not have employed counsel satisfactory to the indemnified party to
represent the indemnified party within a reasonable time after notice of
commencement of the action. It is
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understood that the indemnifying party shall not, in respect of the legal
expenses or any indemnified party in connection with any proceeding or related
proceedings in the same jurisdiction, be liable for the fees and expenses of
more than one separate firm (in addition to any local counsel) for all
indemnified parties under Section 5(a) or 5(b) hereof who are parties to such
proceeding or proceedings, and that all such fees and expenses shall be
reimbursed as they are incurred. The indemnifying party shall not be liable for
any settlement of any proceeding effected without its written consent, but if
settled with such consent or if there be a final judgment for the plaintiff,
the indemnifying party agrees to indemnify the indemnified party from and
against any loss or liability by reason of such settlement or judgment. No
indemnifying party shall, without the prior written consent of the indemnified
party, effect any settlement of any pending or threatened proceeding in respect
of which any indemnified party is or could have been a party and indemnity
could have been sought hereunder by such indemnified party, unless such
settlement includes an unconditional release of such indemnified party from all
liability on claims that are the subject matter of such proceeding.
(d) Contribution. If the indemnification provided for in
this Section 5 is unavailable (other than by reason of the exceptions set forth
herein) to an indemnified party under Section 5(a) or 5(b) hereof in respect of
any Losses or is insufficient to hold such indemnified party harmless, then
each applicable 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 Losses, (i) in such proportion as is appropriate to reflect
the relative benefits received by the indemnifying party or parties on the one
hand and the indemnified party or parties on the other hand or (ii) if the
allocation provided by clause (i) above is not permitted by applicable law, in
such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the indemnifying
party or parties on the one hand and of the indemnified party or parties on the
other hand in connection with the statements or omissions that resulted in such
Losses, as well as any other relevant equitable considerations. Benefits
received by the Company shall be deemed to be equal to the total net proceeds
from the initial placement of the Preferred Stock pursuant to the Purchase
Agreement. Benefits received by the Initial Purchaser shall be deemed to be
equal to the total purchase discounts and commissions received by them pursuant
to the Purchase Agreement and benefits received by any other Holders shall be
deemed to be equal to the value of receiving the Common Stock into which the
Preferred Stock is convertible registered under the Securities Act. Benefits
received by any underwriter shall be deemed to be equal to the total
underwriting discounts and commissions, as set forth on the cover page of the
Prospectus forming a part of the Registration Statement which resulted in such
Losses. The relative fault of the Holders on the one hand and the Company on
the other hand shall be determined by reference to, among other things, whether
the untrue or alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to information supplied by
the Holders or by the Company and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
omission. The Holders' respective obligations to contribute pursuant to this
paragraph are several in proportion to the respective number of Registrable
Securities they have sold pursuant to a Registration Statement, and not joint.
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12
The parties hereto agree that it would not be just and equitable if
contribution pursuant to this Section 5(d) were determined by pro rata
allocation or by any other method or allocation that does not take into account
the equitable considerations referred to in the immediately preceding
paragraph. The amount paid or payable by an indemnified party as a result of
the Losses referred to in the immediately preceding paragraph shall be deemed
to include, subject to the limitations set forth above, any legal or other
expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding this
Section 5(d), an indemnifying party that is a Selling Holder of Registrable
Securities shall not be required to contribute any amount in excess of the
amount by which the total price at which the Registrable Securities sold by
such indemnifying party and distributed to the public were offered to the
public exceeds the amount of any damages which such indemnifying party has
otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. 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.
The indemnity, contribution and expense reimbursement obligations of
the Company hereunder shall be in addition to any liability the Company may
otherwise have hereunder, under the Purchase Agreement or otherwise.
The indemnity and contribution provisions contained in this Section 5
shall remain operative and in full force and effect regardless of (i) any
termination of this Agreement, (ii) any investigation made by or on behalf of
any Holder or any person controlling any Holder, or the Company, its officers
or directors or any person controlling the Company and (iii) the sale of any
Registrable Securities by any Holder.
6. Information Requirements.
(a) The Company shall file the reports required to be
filed by it under the Securities Act and the Exchange Act, and if at any time
the Company is not required to file such reports, it will, upon the request of
any Holder of Registrable Securities, make publicly available other information
so long as necessary to permit sales pursuant to Rule 144 and Rule 144A under
the Securities Act. The Company further covenants that it will cooperate with
any Holder of Registrable Securities and take such further reasonable action as
any Holder of Registrable Securities may reasonably request (including, without
limitation, making such reasonable representations as any such Holder may
reasonably request), all to the extent required from time to time to enable
such Holder to sell Registrable Securities without registration under the
Securities Act within the limitation of the exemptions provided by Rule 144 and
Rule 144A under the Securities Act. Notwithstanding the foregoing, nothing in
this Section 6 shall be deemed to require the Company to register any of its
securities under any section of the Exchange Act.
(b) The Company shall file the reports required to be
filed by it under the Exchange Act and shall comply with all other requirements
set forth in the instructions to the
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13
appropriate SEC Registration Statement form permitting registration of the
Registrable Securities for resale by the Holders thereof in the manner or
manners designated by them.
7. Miscellaneous.
(a) Remedies. In the event of a breach by the Company of
its obligations under this Agreement, each Holder of Registrable Securities, in
addition to being entitled to exercise all rights granted by law, including
recovery of damages, will be entitled to specific performance of its rights
under this Agreement. The Company agrees that monetary damages would not be
adequate compensation for any loss incurred by reason or a breach by it of any
of the provisions of this Agreement and hereby further agrees that, in the
event of any action for specific performance in respect of such breach, it
shall waive the defense that a remedy at law would be adequate.
(b) No Conflicting Agreements. The Company has not
entered, as of the date hereof and shall not, on or after the date of this
Agreement, enter into any agreement with respect to its securities which
conflicts with the rights granted to the Holders of Registrable Securities in
this Agreement. The Company represents and warrants that the rights granted to
the Holders of Registrable Securities hereunder do not in any way conflict with
the rights granted to the holders of the Company's securities under any other
agreements.
(c) Amendments and Waivers. The provisions of this
Agreement, including the provisions of this sentence, may not be amended,
modified or supplemented, and waivers or consents to departures from the
provisions hereof may not be given, unless the Company has obtained the written
consent of Holders of a Majority of the then outstanding Registrable
Securities. Notwithstanding the foregoing, a waiver or consent to depart from
the provisions hereof with respect to a matter that relates exclusively to the
rights of holders of Registrable Securities whose securities are being sold
pursuant to a Registration Statement and that does not directly or indirectly
affect the rights of other Holders of Registrable Securities may be given by
Holders of at least a majority of the Registrable Securities being sold by such
Holders; provided, that the provisions of this sentence may not be amended,
modified, or supplemented except in accordance with the provisions of the
immediately preceding sentence.
(d) Notices. All notices and other communications
provided for or permitted hereunder shall be made in writing and shall be
deemed given (i) when made, if made by hand delivery, (ii) upon confirmation,
if made by telecopier or (iii) one business day after being deposited with a
reputable next-day courier, postage prepaid, to the parties as follows:
(x) if to a holder of Registrable Securities, at
the most current address given by such holder to the Company in accordance with
the provisions of Section 7(e):
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14
(y) if to the Company, to:
BOLDER Technologies Corporation
0000 Xxxxx Xxxxxxxx Xxxxx
Xxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxxx
Telecopy No.: (000) 000-0000
with a copy to:
Xxxxxx Godward LLP
0000 Xxxxxx Xxxx., Xxxxx 000
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxx X. Xxxxxxx
Telecopy No.: (000) 000-0000
and
(z) if to the Special Counsel to:
Piper & Marbury L.L.P.
00 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxx
Telecopy No.: (000) 000-0000
or to such other address as such person may have furnished to the other persons
identified in this Section 7(d) in writing in accordance herewith.
(e) Owner of Registrable Securities. The Company will
maintain, or will cause its registrar and transfer agent to maintain, a
register with respect to the Registrable Securities in which all transfers of
Registrable Securities of which the Company has received notice will be
recorded. The Company may deem and treat the person in whose name Registrable
Securities are registered in such register of the Company as the owner thereof
for all purposes, including, without limitation, the giving of notices under
this Agreement.
(f) Approval of Holders. Whenever the consent or approval
of Holders of a specified percentage of Registrable Securities is required
hereunder, Registrable Securities held by the Company or its affiliates (as
such term is defined in Rule 405 under the Securities Act) (other than the
Initial Purchaser or subsequent holders of Registrable Securities if such
subsequent holders are deemed to be such affiliates solely by reason of their
holdings of such Registrable Securities) shall not be counted in determining
whether such consent or approval was given by the Holders of such required
percentage.
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15
(g) Successors and Assigns. Any person who purchases any
Registrable Securities from an Initial Purchaser shall be deemed, for purposes
of this Agreement to be an assignee of such Initial Purchaser. The Agreement
shall inure to the benefit of and be binding upon the successors and assigns of
each of the parties and shall inure to the benefit of and be binding upon each
holder of any Registrable Securities.
(h) 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 original and all of which taken
together shall constitute one and the same agreement.
(i) Headings. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning hereof.
(j) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE, AS APPLIED
TO CONTRACTS MADE AND PERFORMED WITHIN THE STATE OF DELAWARE WITHOUT REGARD TO
PRINCIPLES OF CONFLICT OF LAWS.
(k) Severability. If any term, provision, covenant or
restriction of this Agreement is held to be invalid, illegal, void or
unenforceable, the remainder of the terms, provisions, covenants and
restrictions set forth herein shall remain in full force and effect, and shall
in no way be affected, impaired or invalidated thereby, and the parties hereto
shall use their best efforts to find and employ an alternative means to achieve
the same or substantially the same result as that contemplated by such term,
provision, covenant or restriction. It is hereby stipulated and declared to be
the intention of the parties that they would have executed the remaining terms,
provisions, covenants and restrictions without including any of such which may
be hereafter declared invalid, illegal, void or unenforceable.
(l) Entire Agreement. This Agreement is intended by the
parties as a final expression of their agreement and is intended to be a
complete and exclusive statement of the agreement and understanding of the
parties hereto in respect of the subject matter contained herein. Except as
provided in the Purchase Agreement, there are no restrictions, promises,
warranties or undertakings, other than those set forth or referred to herein,
with respect to the registration rights granted by the Company with respect to
the securities sold pursuant to the Purchase Agreement. This Agreement
supersedes all prior agreements and understandings among the parties with
respect to such subject matter.
(m) Attorneys' Fees. In any action or proceeding brought
to enforce any provision of this Agreement, or where any provision hereof is
validly asserted as a defense, the prevailing party, as determined by the
court, shall be entitled to recover reasonable attorneys' fees in addition to
any other available remedy.
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16
(n) Further Assurances. Each of the parties hereto shall
use all reasonable efforts to take, or cause to be taken, all appropriate
action, do or cause to be done all things reasonably necessary, proper or
advisable under applicable law, and execute and deliver such documents and
other papers, as may be required to carry out the provisions of this Agreement
and the other documents contemplated hereby and consummate the make effective
the transactions contemplated hereby.
(o) Termination. This Agreement and the obligations of
the parties hereunder shall terminate upon the end of the Effectiveness Period,
except for any liabilities or obligations under Sections 2(d), 4 or 5 hereof,
each of which shall remain in effect in accordance with their terms.
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17
IN WITNESS WHEREOF, the parties have executed this Registration Rights
Agreement as of the date first written above.
BOLDER TECHNOLOGIES CORPORATION
By: /s/ XXXXXX X. XXXXXXXX
--------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: President and Chief Executive Officer
Accepted as of the date first above written:
BT ALEX. XXXXX INCORPORATED
By: /s/ XXXXX X. XXXX
-----------------------------------
Xxxxx X. Xxxx
Managing Director
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