REAL GOODS TRADING CORPORATION
A CALIFORNIA CORPORATION
REGISTRATION RIGHTS AGREEMENT
This REGISTRATION RIGHTS AGREEMENT (the "Agreement") is made
and entered into as of June 18, 1997 by and between REAL GOODS
TRADING CORPORATION, a California corporation (the "Company") and
Xxxx Xxxxxxxxx (the "Holder").
In consideration of the mutual promises and covenants
contained in this Agreement, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
1. DEFINITIONS. For purposes of this Agreement, the
following terms shall have the following meanings:
1.1 ACT: The Securities Act of 1933, as amended, or any
other statute in effect from time to time corresponding to such
act.
1.2 HOLDER: Xxxx Xxxxxxxxx or any other holder of
Registrable Securities to whom registration rights have been
transferred in compliance with paragraph 8.2 hereof.
1.3 PERSON: An individual, partnership, corporation, trust
or unincorporated organization, or a government or agency or
political subdivision thereof.
1.4 PROSPECTUS: The prospectus included in any
Registration Statement, as amended or supplemented by any
prospectus supplement with respect to the terms of the offering
of any portion of the Registrable Securities covered by the
Registration Statement and by all other amendments and
supplements to the prospectus, including post-effective
amendments and all material incorporated by reference in such
prospectus.
1.5 REGISTER, REGISTERED, AND REGISTRATION: A registration
effected by preparing and filing a Registration Statement in
compliance with the Act and the declaration or ordering of
effectiveness of such Registration Statement by the SEC.
1.6 REGISTRABLE SECURITIES: All Shares issued or issuable
to the Holder (and his transferees); provided that a security
ceases to be a Registrable Security when it is transferred other
than pursuant hereto or if it is no longer a Restricted Security.
A security is a Restricted Security unless and until
1.6.1 it has been effectively registered under the Act
and may be disposed of in accordance with the Registration
Statement covering it, except for such registrations withdrawn
pursuant hereto; or
1.6.2 all of the Shares owned by Holder may be
distributed to the public pursuant to Rule 144 (or any similar
provision then in force) under the Act within the succeeding six
(6) months without regard to the volume of trading in the
Company's securities.
1.7 REGISTRATION STATEMENT: Any registration statement of
the Company which covers Registrable Securities pursuant to the
provisions of this Agreement, including the Prospectus,
amendments and supplements to such Registration Statement,
post-effective amendments, and all exhibits and all material
incorporated by reference in such Registration Statement.
1.8 SEC: The Securities and Exchange Commission or any
other agency assuming or succeeding to the responsibilities
thereof in connection with the registration of securities.
1.9 SHARES: Shares of capital stock of the Company.
ARTICLE II
COMPANY REGISTRATION
2.1 COMPANY REGISTRATION. Subject to Article IV hereof, if
at any time after the date of this Agreement the Company
determines to register, either for its own account or the account
of any security holder or holders, any of its capital stock on a
form that would also permit the registration of Registrable
Securities (expressly excluding any public offering relating
solely to Form S-8 for employee benefit plans or Form S-4 for
certain business combinations, or their successor forms, or any
form that does not permit secondary offerings) the Company shall,
each such time, promptly give Holder written notice of such
determination. Upon the written request of Holder to
participate, with such request given within ten (10) days after
mailing of any such notice by the Company, the Company shall use
its best efforts to include in such registration (and any related
qualification under blue sky laws, and in any underwriting) all
of the Registrable Securities that Holder has requested be
registered, subject to the provisions of Section 8.1 of this
Agreement. The Company may withdraw any registration pursuant to
this Article II at any time prior to the effectiveness of the
Registration Statement whether or not Holder has elected to
participate. Holder shall be entitled to participate in two
registrations pursuant to this Article II. Any registration
withdrawn by the Company before closing shall not be counted as
one of the two (2) registrations allowed the Holder hereunder.
2.2 COMPANY'S NOTICE. For each Company registration
pursuant to Section 2.1, the Company shall state in a written
notice to Holder those jurisdictions in which the Company intends
to attempt to qualify such securities under applicable blue sky
laws. The Company may withdraw any registration pursuant to this
Article II at any time prior to the effectiveness of the
Registration Statement whether or not Holder has elected
to participate. Subject to the provisions of Article VIII
hereof, Holder may participate in an unlimited number of
registrations pursuant to this Article II.
ARTICLE III
OBLIGATIONS OF THE COMPANY
3.1 OBLIGATIONS OF THE COMPANY. Whenever required under
Article II to use its best efforts to effect the registration of
any Registrable Securities, the Company shall, as expeditiously
as reasonably possible, do the following:
3.1.1 Prepare and file with the SEC a Registration
Statement with respect to such Registrable Securities
as promptly as possible and use all reasonable efforts
to cause such Registration Statement to become and
remain effective until Holder has completed the
distribution described in the Registration Statement or
at such time as Holder's Shares are no longer
Registrable Securities.
3.1.2 Use all reasonable efforts to prepare and
file with the SEC such amendments (including
post-effective amendments) and supplements to such
Registration Statement and the Prospectus used in
connection with such Registration Statement as may be
necessary to comply with the provisions of the Act with
respect to the disposition of all securities covered by
such Registration Statement, subject to a Waiting
Period (as defined in Section 8.2.2 hereof), if
applicable;
3.1.3 Keep Holder advised as to the progress of the
registration and offering, and furnish to Holder, at
any time and from time to time, such numbers of
copies of a Prospectus, including a preliminary
prospectus, amendments or supplements, in conformity
with the requirements of the Act, and such other
documents as any of them from time to time may
reasonably request in order to facilitate the
disposition of Registrable Securities owned by Holder;
3.1.4 Subject to a Waiting Period (as defined in
Section 8.2.2 hereof), if applicable, notify Holder of
the happening of any event which might cause the
Prospectus included in such Registration Statement, as
then in effect, to include an untrue statement of a
material fact or omit to state a material fact required
to be stated therein or necessary to make the
statements therein not misleading or incomplete in the
light of the circumstances then existing, and at the
request of Holder, prepare and furnish to Holder a
reasonable number of copies of a supplement to or an
amendment of such Prospectus as may be necessary so
that, as thereafter delivered to the purchasers of such
shares, such Prospectus shall not include an untrue
statement of a material fact or omit to state a
material fact required to be stated therein or
necessary to make the statements therein not misleading
or incomplete in the light of the circumstances than
Existing;
3.1.5 Cause all such Registrable Securities
registered pursuant hereunder to be listed on each
securities exchange on which similar securities issued
by the Company are then listed;
3.1.6 Provide a transfer agent and registrar for
all Registrable Securities registered pursuant to such
registration statement and a CUSIP number of all such
Registrable Securities, in each case not later than the
effective date of such registration; and
3.1.7 Use its best efforts to register and qualify
the securities covered by such Registration Statement
under such other securities or Blue Sky laws of such
jurisdictions as shall be reasonably appropriate for
the distribution of the securities covered by the
Registration Statement, provided that the Company shall
not be required to register or qualify the securities
in any jurisdiction where the Company, in connection
with such registration or qualification or as a
condition thereto, is required to qualify to do
business or to file a general consent to service of
process (unless the Company is already subject to
service in such jurisdiction and except as required by
the Act), and further provided that (anything in this
Agreement to the contrary notwithstanding with respect
to the bearing of expenses) if any jurisdiction in
which the securities shall be qualified shall require
that expenses incurred in connection with the
qualification of the securities in that jurisdiction be
borne by selling shareholders, then such expenses shall
be payable by the Holder to the extent required by such
jurisdiction.
3.2 FURNISH INFORMATION. It shall be a condition precedent
to the obligations of the Company to take any action pursuant to
this Agreement that Holder furnish to the Company such
information regarding such person, the Registrable Securities
held by such person, and the intended method of disposition of
such securities as the Company shall reasonably request and as
shall be required in connection with the action to be taken by
the Company.
3.3 EXPENSES OF REGISTRATION. All expenses incurred in
connection with any registration effected hereunder (excluding
underwriters' discounts and commissions and stock transfer
taxes),including, without limitation, all registration and
qualification fees (other than the SEC registration fee) and
printing, legal and accounting fees and costs, shall be borne by
the Company.
ARTICLE IV
UNDERWRITING REQUIREMENTS
4.1 UNDERWRITING. If any registration hereunder shall
involve an underwriting, then the Company shall so advise Holder
in writing, and the right of Holder to participate in any
registration hereunder shall be conditioned upon Holder's
participation in such underwriting and the inclusion of Holder's
Registrable Securities in the underwriting to the extent provided
herein. The Company, together with Holder (if Holder intends to
distribute their Registrable Securities through such
underwriting), shall enter into an underwriting agreement in
customary form with the underwriter or underwriters selected for
such underwriting by the Company. If the underwriter or
underwriters determine that marketing factors require a
limitation on the number of shares of Common Stock to be
underwritten, then the Company shall so advise Holder. The
Company shall be entitled to include all securities it proposed
to register for its own account in its notice to Holder, and the
number of shares of Registrable Securities which may thereafter
be included in the registration and underwriting shall be
allocated first to Holder and other selling stockholders whose
shares are included as a result of registration rights granted by
the Company, in proportion to the number of securities held by
each such person at the time of the initial filing of the
Registration Statement, and then to other participants, as may be
agreed by such other participants.
4.2 WITHDRAWAL. No Registrable Securities excluded from
the underwriting by reason of this Article IV shall be included
in such registration. If any person disapproves of the terms of
the underwriting, such person may elect to withdraw therefrom by
written notice to the Company and the underwriter or
underwriters. All Registrable Securities so withdrawn shall also
be withdrawn from the registration and shall not be transferred
in a public distribution prior to one hundred and eighty (180)
days after the effective date of the Registration Statement
relating thereto or such other shorter period of time as the
underwriter or underwriters may require.
ARTICLE V
INDEMNIFICATION
5.1 INDEMNIFICATION BY COMPANY. To the extent permitted by
law, the Company will indemnify and hold harmless Holder, each of
the Holder's respective partners, officers, directors,
employees, heirs, successors, assigns and agents, and each
Person, if any, who controls Holder within the meaning of either
Section 15 of the Act or Section 20 of the Securities Exchange
Act of 1934, as amended (the "Exchange Act") (each such person
being sometimes hereinafter referred to as an "Indemnified
Holder"), from and against any and all losses, claims, damages,
liabilities and expenses (or actions, proceedings or settlements
with respect thereto) including reasonable costs of investigation
and legal fees and expenses, (i) 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 supplement thereto or in any preliminary prospectus)
or any document relating 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, or (iii) arising out of or
based upon any violation by the Company of the Act or any rule or
regulation thereunder applicable to the Company and the relating
action or inaction required of the Company in connection
therewith, and the Company will reimburse each Holder, each of
its partners, officers, directors, employees, heirs, successors,
assigns and agents, and each person controlling Holder, for any
and all legal and other expenses reasonably incurred in
connection with investigating, defending or settling such loss,
claim, damage or liability. Notwithstanding the above, this
indemnity and duty to defend shall not apply to Holder to the
extent that such losses, claims, damages, liabilities or expenses
arise out of or are based upon any untrue statement or omission
or allegation thereof based upon information furnished in writing
to the Company by Holder expressly for use in any Registration
Statement or Prospectus, or any amendment or supplement thereto,
or any preliminary prospectus, or given supplementally to the
SEC, the National Association of Securities Dealers, any exchange
or state securities regulators. Further, the Company shall not be
liable nor have any duty to defend in any such case to the extent
that any such loss, claim, damage, liability or expense arises
out of or is based upon an untrue statement or alleged untrue
statement or omission or alleged omission made in any preliminary
prospectus if (i) such Indemnified Holder failed to send or
deliver a copy of the Prospectus with or prior to the delivery of
written confirmation of the sale of Registrable Securities, and
(ii) the Prospectus would have completely corrected such untrue
statement or omission. Further, the Company shall not be liable
nor have any duty to defend in any case to the extent that any
such loss, claim, damage, liability or expense arises out of or
is based upon an untrue statement or alleged untrue statement or
omission or alleged omission in the Prospectus if such untrue
statement or alleged untrue statement, omission or alleged
omission is completely corrected in an amendment or supplement to
the Prospectus and if, having previously been furnished by or on
behalf of the Company with copies of the Prospectus as so amended
or supplemented, such Indemnified Holder thereafter fails to
deliver such Prospectus as so amended or supplemented, prior to
or concurrently with the sale of a Registrable Security to the
person asserting such loss, claim, damage, liability or expense
who purchased such Registrable Security which is the subject
thereof from such Indemnified Holder. This indemnity will be in
addition to any liability which the Company may otherwise have.
This indemnity shall not apply to any amount paid or incurred in
settlement without the express written consent of the Company,
which consent shall not be unreasonably withheld.
Each Indemnified Holder shall give prompt notice to the
Company after it has actual knowledge of any claim in respect of
which indemnity may be sought from the Company hereunder. After
receipt of such notice, the Company may assume the defense
thereof at the Company's expense, provided that counsel for the
Company shall be satisfactory to such Indemnified Holder (whose
approval shall not be unreasonably withheld). The failure of any
Indemnified Holder to give notice as provided herein shall not
relieve the Company of any of its obligations hereunder to the
extent such failure is not prejudicial. If the Company assumes
the defense in such action, such Indemnified Holder shall retain
the right to employ separate counsel in any such action and to
participate in the defense thereof, but the fees and expenses
of such counsel shall be the expense of such Indemnified Holder
unless (i) the Company has expressly agreed in writing to pay
such fees and expenses, or (ii) the Company shall have a duty to
assume the defense of such action or proceeding and has failed to
do so and failed to employ counsel satisfactory to such
Indemnified Holder in any such action or proceeding as required
hereunder, or (iii) the named parties to any such action or
proceeding (including any impleaded parties) include both the
Indemnified Holder and the Company, and such Indemnified Holder
shall have been advised by counsel that there is a conflict of
interest between the Company and the Indemnified Holder making
representation by the same counsel inappropriate. In all
circumstances, if the Indemnified Holder notifies the Company in
writing that it elects to employ separate counsel at the expense
of the Company, the Company shall not have the obligation to
assume the defense of such action or proceeding on behalf of such
Indemnified Holder; it being understood, however, that the
Company shall not, in connection with any one such action or
proceeding or separate but substantially similar or related
actions or proceedings in the same jurisdiction arising out of
the same general allegations or circumstances, be liable for the
reasonable fees and expenses of more than one separate firm of
attorneys at any time for such Indemnified Holder, which firm
shall be designated in writing by such Indemnified Holder and
shall be subject to the approval of the Company, which approval
shall not be unreasonably withheld. The Company shall not
be liable for any settlement of any such action or proceeding
effected without its written consent, but if settled with its
written consent, or if there be a final judgment for the
plaintiff in any such action or proceeding, the Company agrees to
indemnify and hold harmless such Indemnified Holder from and
against any loss or liability by reason of such settlement or
judgment.
5.2 INDEMNIFICATION BY HOLDER. To the extent permitted by
law, Holder agrees to indemnify and hold harmless the Company,
its directors, employees, officers and agents, and each person,
if any, who controls the Company within the meaning of either
Section 15 of the Act or Section 20 of the Exchange Act, and
Holder, and each of Holder's partners, officers, directors,
employees, heirs, successors, assigns and agents and each person
controlling Holder, to the same extent as the foregoing indemnity
from the Company to the Indemnified Holder, but only with respect
to information relating to Holder furnished in writing by Holder
expressly for use in any Registration Statement or Prospectus, or
any amendment or supplement thereto, or any preliminary
prospectus, or given supplementally to the SEC, the National
Association of Securities Dealers, any exchange or state
securities regulators. In case any action or proceeding shall be
brought in respect of which indemnity may be sought against
Holder hereunder, (a) Holder shall have the rights and duties
given the Company, and (b) the Company and its directors,
officers, employees or agents and controlling persons shall have
the rights and duties given to each Indemnified Holder by
paragraph 5.1. In no event shall the liability of Holder
hereunder be greater in amount than the dollar amount of the
proceeds received by Holder upon the sale of the Registrable
Securities giving rise to such indemnification obligation.
5.3 CONTRIBUTION. If the indemnification provided for in
this Article V is unavailable to an indemnified party under
paragraphs 5.1 or 5.2 hereof (other than by reason of exceptions
provided in those paragraphs) in respect of any losses, claims,
damages or liabilities referred to therein, 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, claims, damages or
liabilities in such proportion as is appropriate to reflect the
relative fault of the Company, on the one hand, and of the
Indemnified Holder or Holders, on the other hand, in connection
with the statements or omissions which resulted in such losses,
claims, damages or liabilities, as well as any other relevant
equitable considerations. The relative fault of the Company on
the one hand and of the Indemnified Holder or Holders on the
other 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 Company or by the
Indemnified Holder or Holders and the parties' relative intent,
knowledge, access to information and opportunity to correct or
prevent such statement or omission. The amount paid or payable by
a party as a result of the losses, claims, damages, liabilities
and expenses referred to above shall be deemed to include,
subject to the limitations set forth in paragraph 5.1, any legal
or other fees or expenses reasonably incurred by such party in
connection with investigating or defending any action or claim.
The Company and the Holder agrees that it would not be just and
equitable if contribution pursuant to this paragraph 5.3 were
determined by pro rata allocation or by any other method of
allocation which does not take account of the equitable
considerations referred to herein. Notwithstanding the
provisions of this paragraph 5.3, Holder 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 Holder and
distributed to the public were offered to the public exceeds the
amount of any damages which Holder 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
Act) shall be entitled to contribution from any person who was
not guilty of such fraudulent misrepresentation.
5.4 SURVIVAL. All provisions of this Article V shall
survive the expiration or termination of this Agreement for any
reason.
ARTICLE VI
TERM AND TERMINATION
6.1 Termination of the Company's Obligations. The
Company's obligations pursuant to Articles II and III shall
expire at the earlier of December 31, 1999 or when there are no
longer any Registrable Securities outstanding.
ARTICLE VII
RULE 144 REPORTING
7.1 REPORTS UNDER EXCHANGE ACT. With a view to making
available to Holder the benefits of Rule 144 promulgated under
the Act ("Rule 144") and any other rule or regulation of the SEC
that may at any time permit Holder to sell securities of the
Company to the public without registration, the Company agrees to
use its best efforts to:
7.1.1 make and keep public information available, as
those terms are understood and defined in Rule 144, at
all times subsequent to ninety (90) days after the
effective date of the first registration statement
covering a public offering of the Company's securities
filed with the SEC by the Company;
7.1.2 file with the SEC, in a timely manner, all
reports and other documents required of the Company
under the Act and the Exchange Act; and 7.1.3 so long
as such person owns any Registrable Securities, furnish
to Holder forthwith upon request, a written statement
by the Company that it has complied with the reporting
requirements of Rule 144 (at any time after ninety (90)
days after the effective date of said first
registration statement filed by the Company), and of
the Act and the Exchange Act (at any time after it has
become subject to such reporting requirements), (ii) a
copy of the most recent annual or quarterly report of
the Company, and (iii) such other reports and
documents so filed by the Company as may be reasonably
requested in availing the Holder of any rule or
regulation of the SEC permitting the selling of any
such securities without registration.
ARTICLE VIII
OBLIGATIONS OF THE HOLDER
8.1 LOCKUP AGREEMENT. In consideration for the Company
agreeing to its obligations hereunder, Holder agrees in
connection with any registration of the Company's Common Stock
for sale to the general public and, upon the request of the
Company or the Company's underwriters managing any underwritten
offering of the Company's securities, not to sell, make short
sale of, loan, grant any option for the purchase of, or otherwise
dispose of any Registrable Securities (other than those included
in the registration) without the prior written consent of the
Company or such underwriters, as the case may be, for such period
of time (not to exceed 180 days) from the effective date of such
registration as the Company or the Company's underwriters may
specify. If the Holder is to be so obligated, Holder agrees to
execute and deliver such documentation as may be reasonably
required by the underwriters in connection with this Article
VIII. This restriction shall not apply to a registration
relating solely to employee benefit plans on Form S-8 or similar
successor forms, or a registration relating solely to a Rule 145
transaction on Form S-4 or similar successor forms. In any
registered offering after the initial offering, Holder shall
agree to a similar "lockup" of their shares (other than those
included in the registration) provided the lockup period does not
exceed 90 days.
8.2 NOTICE OF PROPOSED TRANSFERS. The rights to cause the
Company to register securities under Article II hereunder shall
be transferable or assignable only to a transferee or assignee of
Registrable Securities (as presently constituted and subject to
adjustments for stock splits, stock dividends, and the like)
equal to not less than 1% of the Company's outstanding common
stock or all of the Registrable Securities held by the
Purchasers, subject to the following:
8.2.1 Prior to any proposed sale, assignment, transfer
or pledge of any Registrable Securities (other than a
transfer not involving a change in beneficial ownership)
unless there is in effect a registration statement under the
Act covering the proposed transfer, Holder thereof shall
give 10 calendar days' prior written notice to the Company
of Holder's intention to effect such transfer, sale,
assignment or pledge in sufficient detail, and, if requested
by the Company, such notice shall be accompanied, at
Holder's expense, by either (i) an unqualified written
opinion of legal counsel who shall be, and whose legal
opinion shall be, reasonably satisfactory to the Company,
addressed to the Company, to the effect that the proposed
transfer of the Registrable Securities may be effected
without registration under the Act, or (ii) a "no action"
letter from the SEC to the effect that the transfer of such
securities without registration will not result in a
recommendation by the staff of the SEC that action be taken
with respect thereto.
8.2.2 If Holder proposes to sell any Registrable
Securities pursuant to an effective Registration
Statement, Holder shall give 10 calendar days' prior
written notice to the Company of Holder's intention to
effect such sale, and if within 2 business days after
the Company's receipt of any such notice pursuant to
Section 8.2.1 or this Section 8.2.2, the Company provides
written notice to Holder that the Company possesses material
undisclosed information relating to its business operations
and instructs Holder not to sell such Registrable Securities
for a specified time not to exceed 30 calendar days (the
"Waiting Period"), Holder shall not sell such Registrable
Securities until the earlier of (i) Holder's receipt of
written notice from the Company that Holder may sell such
Registrable Securities, or (ii) the expiration of the
Waiting Period. The Company may impose the Waiting Period
for only one proposed sale per quarter by Holder.
8.2.3 After Holder complies with the requirements of
this Section 8, Holder shall be entitled to transfer such
Registrable Securities in accordance with the terms of the
notice delivered by Holder to the Company. It is agreed
that the Company will not request an opinion of counsel for
Holder for transactions made in reliance on Rule 144 under
the Act as to which no notice shall be necessary, so long as
appropriate Rule 144 representations by Holder and his or
its broker are provided to the Company. Each certificate
evidencing the Registrable Securities transferred as above
provided shall bear the appropriate restrictive legend
except that such certificate shall not bear any restrictive
legend if, in the opinion of counsel for Holder and the
Company, such legend is not required in order to establish
compliance with any provision of the Act. Notwithstanding
the foregoing, each Holder agrees that it will not request
that a transfer of the Registrable Securities be made (or
that any legend be removed from the certificate evidencing
the Registrable Securities) solely in reliance on Rule
144(k) under the Act if as a result of such proposed
transfer, the Company would be rendered subject to the
reporting requirements of the Exchange Act.
8.3 NO RIGHT TO DELAY. Holder shall not have any right to
take any action to restrain, enjoin, or otherwise delay any
registration as a result of any controversy under this Agreement.
ARTICLE IX
MISCELLANEOUS
9.1 ASSIGNMENT. The terms and conditions of this Agreement
shall be binding upon and inure to the benefit of all of the
respective successors, transferees and assigns of the parties
hereto who agree to be bound by all of the terms of this
Agreement. This Agreement shall be binding upon the parties with
respect to shares of capital stock subsequently acquired by
Holder.
9.2 ENTIRE AGREEMENT; AMENDMENT; WAIVER. This Agreement
(including the Exhibits hereto, if any) constitutes the full and
entire understanding and agreement between the parties with
regard to the subjects hereof and thereof. Neither this
Agreement nor any term hereof may be amended, waived, discharged
or terminated, except by a written instrument signed by the
Company and the Holder.
9.3 INFORMATION CONFIDENTIAL. Holder acknowledges that the
information received by it pursuant hereto may be confidential
and for its use only, and it will not use such confidential
information in violation of the Exchange Act or reproduce,
disclose or disseminate such information to any other person
(other than its employees or agents having a need to know the
contents of such information, and its attorneys) or use such
information to the detriment of the Company, except in connection
with the exercise of rights under this Agreement, unless the
Company has made such information available to the public
generally or Holder is required to disclose such information by a
governmental body.
9.4 FURTHER ASSURANCES. The parties hereto shall use their
best efforts to do and perform or cause to be done and performed
all such further acts and shall execute and deliver all such
other agreements, certificates, instruments or documents as any
other party may reasonably request in order to carry out the
intent and purpose of this Agreement and the consummation of the
transactions contemplated hereby and thereby. Neither the
Company nor Holder shall voluntarily undertake any course of
action inconsistent with the satisfaction of the requirements
applicable to them set forth in this Agreement and each shall
promptly do all such acts and take all such measures as may be
appropriate to enable them to perform as early as practicable the
obligations herein and therein required to be performed by them.
9.5 THIRD PARTIES. Nothing in this Agreement, express or
implied, is intended to confer upon any Person, other than the
parties hereto, the Indemnified Holder, the Company's directors,
controlling persons, employees, officers, agents and their
respective heirs, successors and assigns, any rights, remedies,
obligations or liabilities under or by reason of this Agreement,
except as expressly provided herein.
9.6 GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of the State of California
applicable to contracts executed by residents of California and
wholly to be performed in California. Each party hereby submits
to the exclusive jurisdiction and venue of the Superior Court of
the State of California for the City and County of San Francisco
or the Federal District Court for the Northern District of
California for purposes of any legal or equitable action or
proceeding arising out of this Agreement. Each party agrees that
service upon such party in any such action or proceeding may be
made by first class mail, certified or registered, return receipt
requested as provided by the giving of notices in Section 9.8.
9.7 TITLES AND SUBTITLES; FORM OF PRONOUNS. The titles of
the articles and sections of this Agreement are for convenience
only and are not to be considered in construing this Agreement.
All pronouns used in this Agreement shall be deemed to include
masculine, feminine and neuter forms.
9.8 NOTICES. Except as otherwise expressly provided
herein, all notices and other communications required or
permitted hereunder shall be given in writing and shall be deemed
effectively given upon personal delivery (professional courier
permissible), United States certified mail delivery or confirmed
facsimile transmission to the address set forth with respect to
such party on the signature pages of this Agreement (and with
copies as indicated thereon), or to such other address as such
party shall have given notice of pursuant hereto to the other
party or parties.
9.9 SEVERABILITY. If one or more provisions of this
Agreement are held to be invalid, illegal or unenforceable under
applicable law, portions of such provisions, or such provisions
in their entirety, to the extent necessary, shall be severed from
this Agreement, and the balance of this Agreement shall be
enforceable in accordance with its terms.
9.10 DELAYS OR OMISSIONS. No delays or omissions to
exercise any right, power or remedy accruing to any party to this
Agreement, upon any breach or default of the other party, shall
impair any such right, power or remedy of such nonbreaching party
nor shall it be construed to be a waiver of any such breach or
default, or an acquiescence therein, or of or in any similar
breach or default thereafter occurring; nor shall any waiver of
any single breach or default be deemed a waiver of any other
breach or default theretofore or thereafter occurring. Any
waiver, permit, consent or approval of any kind or character on
the part of any party of any breach or default under this
Agreement, must be made in writing and shall be effective only to
the extent specifically set forthin such writing. All remedies,
either under this Agreement, or by law or otherwise afforded to
any holder, shall be cumulative and not alternative.
9.11 ATTORNEYS' FEES. In the event of litigation
hereunder, the prevailing party or parties shall be entitled to
recover its or their costs of litigation, including reasonable
attorneys' fees, in addition to all other relief as may be
granted.
9.12 COUNTERPARTS. This Agreement may be executed in any
number of counterparts, each of which shall be an original, but
all of which together shall constitute one instrument.
IN WITNESS WHEREOF, the parties have executed this
Registration Rights Agreement as of the date first written above.
COMPANY:
REAL GOODS TRADING CORPORATION,
a California corporation
BY:[S]XXXX XXXXXXXXX
Xxxx Xxxxxxxxx
Title:[S]PRESIDENT
President
Address for Notice:
000 Xxxxxx Xxxxxx
Xxxxx, Xxxxxxxxxx 00000
Attn: President
With a copy to:
Xxxxx Xxxxx, Esq.
Coblentz, Cahen, XxXxxx & Breyer, LLP
000 Xxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
HOLDER:[S]XXXX XXXXXXXXX
XXXX XXXXXXXXX
Address for Notice:
000 Xxxxxx Xxxxxx
Xxxxx, Xxxxxxxxxx 00000
