Exhibit 5
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement is made as of this 23/rd/ day of July,
2001, by and among Environmental Power Corporation, a Delaware corporation (the
"Company"), Xxxxxx X. Xxxxxx ("Xxxxxx"), Xxxxxx X. Xxxxxxxxxx ("Xxxxxxxxxx"),
the Principal Microgy Holders (as defined below) and any other security holders
of Microgy Cogeneration Systems Inc. ("Microgy") who hereafter execute
counterpart signature pages of this Agreement in connection with the Subsequent
Exchange described below (the "Additional Exchanging Shareholders").
RECITALS:
WHEREAS, the Company, Microgy and the Principal Microgy Holders have
entered into a Share Exchange Agreement dated as of June 20, 2001 (the "Exchange
Agreement"), in connection with which the Principal Microgy Holders acquired on
the date hereof, certain shares of the Company's Common Stock, par value $.01
per share, and certain shares of the Company's Series B Convertible Preferred
Stock, par value $.01 per share ("Preferred Stock"),in a share exchange whereby
the Company acquired in excess of 80% of the outstanding capital stock of
Microgy Cogeneration Systems, Inc. and certain Microgy Derivative Securities, as
defined in the Exchange Agreement (the "Initial Exchange");
WHEREAS, the Company plans to offer the holders of other securities of
Microgy the opportunity to exchange Microgy common stock for the Company's
Common Stock and Preferred Stock and to exchange Microgy warrants for similar
warrants of the Company ("Exchange Warrants") to purchase the Company's Common
Stock and Preferred Stock (the "Subsequent Exchange");
NOW, THEREFORE, in consideration of the foregoing, the mutual covenants and
agreements contained herein and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, it is agreed as
follows:
1. DEFINITIONS. For purposes of this Agreement:
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(a) "Common Stock" means the common stock, par value $.01 per share, of
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the Company.
(b) "Exchange Act" means the Securities Exchange Act of 1934, as amended.
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(c) "Exchange Common Stock" means the Common Stock issued in the Initial
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or Subsequent Exchange and any Common Stock issuable upon exercise of warrants
or options or conversion of Preferred Stock (including Preferred Stock issuable
upon exercise of warrants or options) issued in the Initial or Subsequent
Exchange.
(d) "Exchange Shareholders" means the Principal Microgy Holders and the
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Additional Exchanging Shareholders.
(e) "Form S-3" means such form under the Securities Act as in effect on
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the date hereof or any registration form under the Securities Act subsequently
adopted by the SEC, which permits inclusion or incorporation of substantial
information by reference to other documents filed by the Company with the SEC.
(f) "Holder" means Xxxxxx, Xxxxxxxxxx and the Exchanging Shareholders or
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any assignee thereof in accordance with Section 8.
(g) "Principal Microgy Holders" means Xxxxxx X. Xxxx, Xxxxxxxx X. Xxxxx,
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Xxxxxx X. Xxxxxxx, Xxxxxx X. Xxxxxxx, Xxxx X. X'Xxxx, Xxxxx X. Xxxxxx, Xxxxxxx
Xxxxxxx and Xxxxx Xxxxxx as Trustees of the Trust u/w/o Xxxxxx Xxxxxxx FBO
Xxxxxxx Xxxxxxx, Xxxxxxxx Ventures Inc. Money Purchase Pension Plan - DLJSC
Custodian FBO Xxxxxxx Xxxxxxx Trustee, Amro International, S.A., Xxxxx Xxxxxx,
Xxxx X. Xxxxx and Hitel Group.
(h) "Person" means any individual, partnership, limited liability company,
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joint venture, corporation, association, trust or any other entity or
organization.
(i) "Register," "registered" and "registration" refer to a registration
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effected by preparing and filing a registration statement or similar document in
compliance with the Securities Act, and the declaration or ordering of
effectiveness of such registration statement or document.
(j) "Registrable Securities" means (i) any shares of Common Stock
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currently held by the Holders, (ii) the Exchange Common Stock, and (iii) any
shares of Common Stock issued or issuable with respect to any such shares of
Common Stock by way of stock dividend or stock split, or in connection with a
combination of shares, recapitalization, merger, consolidation, or other
reorganization or otherwise or (iv) any shares of Common Stock issued or
issuable as a result of the adjustment provisions of Section 2.4 of the Exchange
Agreement; provided, however, that any such securities shall cease to be
Registrable Securities when (i) such securities are sold by a Holder in a
transaction in which such Holder's rights under this Agreement are not assigned
pursuant to Section 8 below, or (ii) such securities shall be salable within a
three-month period pursuant to Rule 144 (or any similar successor rule that may
be promulgated by the SEC).
(k) "SEC" means the Securities and Exchange Commission.
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(l) "Securities Act" means the Securities Act of 1933, as amended.
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(m) "Violation" means any of the following statements, omissions or
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violations: (i) any untrue statement or alleged untrue statement of a material
fact contained in a registration statement under this Agreement, including any
preliminary prospectus or final prospectus contained therein or any amendments
or supplements thereto or any documents filed under state securities or "blue
sky" laws in connection therewith, (ii) the omission or alleged omission to
state in any of the foregoing a material fact required to be stated therein, or
necessary to make the statements therein not misleading, or (iii) any violation
or alleged violation by the Company of the Securities Act, the Exchange Act, any
other federal, state or common law or any rule or regulation promulgated under
the Securities Act, the Exchange Act or any state securities law.
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2. REGISTRATION.
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(a) The Company shall prepare, and, on or prior to the earlier of (i) 30
days after the Company becomes eligible to use Form S-3 for such purposes or
(ii) November 30, 2001 (or such later date as is agreed to by the Company and
Principal Microgy Holders holding a majority of the aggregate voting power of
the Principal Microgy Holders in the Company), file with the SEC a Registration
Statement on Form S-3 (or, if Form S-3 is not then available, on such form of
Registration Statement as is then available to effect a registration of the
Registrable Securities) pursuant to Rule 415 covering the resale from time to
time of the Registrable Securities held by the Holders and use commercially
reasonable efforts to cause such registration statement to become effective as
soon thereafter as practicable. The parties acknowledge that Form S-3 is not
currently available to the Company.
(b) Notwithstanding Section 2(a), if the Company shall furnish to Holders
a certificate signed by the Chief Executive Officer or President of the Company
stating that in the good faith judgment of the Board of Directors of the
Company, it would be seriously detrimental to the Company and its shareholders
for any such registration statement to be filed by reason of (i) a material
pending transaction or (ii) the Company being in possession of material non-
public information which it considers prudent not to disclose in a registration
statement, and it is therefore essential to defer the filing of any such
registration statement, the Company shall have the right to defer such filing
for a period of not more than ninety (90) days; provided, however, that the
Company during such deferment may not file a registration statement for
securities to be issued and sold for its own account or that of other
stockholders and; provided, further, the Company may not utilize this right more
than once in any 12-month period.
(c) If (but without any obligation to do so) at any time the Company
proposes to register (including for this purpose a registration effected by the
Company for shareholders other than the Holders) any of its stock or other
securities under the Securities Act in connection with the public offering
(whether for the account of the Company or for selling stockholders) of such
securities (other than a registration on Form S-8 relating solely to the sale of
securities to participants in a Company stock or stock option plan or to other
compensatory arrangements to the extent includible on Form S-8, or a
registration on Form S-4), the Company shall, at such time, promptly give each
Holder written notice of such registration. Upon the written request of each
Holder given within ten (10) days after receipt by such Holder of such notice by
the Company in accordance with Section 15, the Company shall, subject to Section
2(d), use its best efforts to cause to be registered under the Securities Act
all of the Registrable Securities that are not, on the date of filing by the
Company of such Registration Statement, subject to the Resale Restrictions
imposed by Section 9 hereof, that each such Holder has requested to be
registered. The Company shall have no obligation under this Section 2(c) to make
any offering of its securities, or to complete an offering of its securities
that it proposes to make, and shall incur no liability to any Holder for its
failure to do so. No registration effected under this Section 2(c) shall relieve
the Company of any of its obligations to effect registrations under Section
2(a).
(d) In connection with any offering involving an underwriting of shares
being issued by the Company, the Company shall not be required under Section
2(c) to include any Holder's securities in such underwriting unless such Holder
accepts the terms of the underwriting as agreed upon between the Company and the
underwriters selected by the Company, and then only
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in such quantity as will not, in the opinion of the underwriters, jeopardize the
success of the offering by the Company; provided, however, that no Holder
participating in such underwriting shall be required to make any
representations, warranties or indemnities in their capacity as selling
stockholders except as they relate to such Holder's ownership of shares and
authority to enter into the underwriting agreement and such Holder's intended
method of distribution. If the total amount of securities, including Registrable
Securities, requested by shareholders to be included in any offering referred to
in Section 2(c) exceeds the amount of securities sold other than by the Company
that the underwriters reasonably believe compatible with the success of the
offering, then the Company shall be required to include in the offering only
that number of such securities, including Registrable Securities, which the
underwriters believe will not jeopardize the success of the offering. The
securities so included shall be apportioned pro rata among the selling
shareholders.
3. OBLIGATIONS OF THE COMPANY. Whenever required under this Agreement to
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effect the registration of any Registrable Securities, the Company shall at its
sole cost:
(a) Promptly prepare and file with the SEC a registration statement with
respect to such Registrable Securities and use its commercially reasonable
efforts to cause such registration statement to become effective expeditiously,
and, upon the request of the Holders of a majority of the Registrable Securities
being registered thereunder, keep such registration statement effective for 12
months or until the Holders have completed the distribution referred to in such
registration statement, whichever occurs first (but in any event for at least
any period required under the Securities Act); provided that before filing such
registration statement or any amendments thereto, the Company will furnish to
the Holders copies of all such documents proposed to be filed. The obligation of
the Company to effect any registration hereunder shall be subject to all
applicable regulations promulgated under the Securities Act and SEC
interpretations thereof which may restrict or limit the number of shares which
may be registered for resale by affiliates of the Company. If necessary, the
securities to be included in a registration on behalf of affiliates shall be
reduced on a pro rata basis in such amount as is necessary for the securities
offered by all affiliates participating in such registration to comply with such
regulations under the Securities Act and all SEC interpretations thereof.
(b) Prepare and file with the SEC such 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
Securities Act with respect to the disposition of all securities covered by such
registration statement.
(c) Furnish (at no cost) to the Holders such number of copies of such
registration statement and of each amendment and supplement thereto (in each
case including all exhibits), such number of copies of the prospectus contained
in such registration statement (including each preliminary prospectus and any
summary prospectus) and, one copy of the signed registration statement and any
post-effective amendment thereto, any other prospectus filed under Rule 424
under the Securities Act, in conformity with the requirements of the Securities
Act, and such other documents incorporated by reference in the registration
statement and such other documents as Holders may reasonably request in order to
facilitate the disposition of Registrable Securities owned by them.
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(d) Use its commercially reasonable efforts to register and qualify the
securities covered by such registration statement under such other securities or
"blue sky" laws of such states or U.S. jurisdictions (not to exceed ten except
as otherwise agreed by the Company) as shall be reasonably requested by the
Principal Microgy Holders (with regard for the level of expense, level of review
and difficulty involved therein) and do any and all other acts and things which
may be reasonably necessary to enable each participating Holder to consummate
the disposition of the Registrable Securities owned by it in such jurisdiction;
provided that the Company shall not be required in connection therewith or as a
condition thereto (i) to qualify to do business in any state or jurisdiction
where it would not otherwise be required to qualify but for the requirements of
this clause (d), or (ii) to file a general consent to service of process in any
such state or jurisdiction.
(e) Use its commercially reasonable efforts to cause all Registrable
Securities covered by such registration statement to be, and remain during the
period provided in Section 3(a), registered with or approved by such other
governmental agencies or authorities as may be necessary by virtue of the
Company's business or operations to enable the seller or sellers thereof to
consummate the disposition of such Registrable Securities.
(f) Immediately notify any Holder of Registrable Securities covered by
such registration statement at any time when such Holder has given notice to the
Company under the second sentence of Section 4 and a prospectus relating thereto
is required to be delivered under the Securities Act of the happening of any
event as a result of which the prospectus included in such registration
statement, as then in effect, includes an untrue statement of a material fact or
omits to state a material fact required to be stated therein or necessary to
make the statements therein not misleading in the light of the circumstances
then existing and if it is necessary to amend or supplement such prospectus to
comply with law, and at the request of any other Holder, prepare and furnish, at
no cost, to such 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 Shares of Common Stock, such prospectus shall not
include 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 then existing, not misleading and so that such
prospectus, as amended or supplemented, will comply with law.
(g) Immediately notify each Holder of Registrable Securities covered by
such registration statement and confirm such advice in writing: (i) when the
registration statement has become effective, (ii) when any post-effective
amendment to the registration statement becomes effective and (iii) of any
request by the SEC for any amendment or supplement to the registration statement
or prospectus or for additional information.
(h) Notify each Holder of Registrable Securities if at any time the SEC or
any state securities commission or other regulatory authority should institute
or threaten to institute any proceedings for the purpose of issuing, or should
issue, a stop order suspending the effectiveness of the Registration Statement.
Upon the occurrence of any of the events mentioned in the preceding sentence,
the Company will use its best efforts to prevent the issuance of any such stop
order or to obtain the withdrawal thereof as soon as possible. The Company will
advise each Holder of Registrable Securities promptly of any order or
communication of any public board or
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body addressed to the Company suspending or threatening to suspend the
qualification of any Registrable Securities for sale in any jurisdiction.
(i) As soon as practicable after the effective date of the registration
statement, and in any event within sixteen (16) months thereafter, have "made
generally available to its security holders" (within the meaning of Rule 158
under the Securities Act) an earning statement (which need not be audited)
covering a period of at least twelve (12) months beginning after the effective
date of the registration statement and otherwise complying with Section 11(a) of
the Securities Act.
(j) Apply to have all Registrable Securities registered pursuant hereto on
a Registration Statement for resale by a Holder to be listed on each securities
exchange or included for trading in such automated quotation system, if any, on
or in which the Shares of Common Stock of the Company are then listed or
included.
(k) Provide a transfer agent and registrar for all Registrable Securities
registered pursuant hereto on a Registration Statement for resale by a Holder,
and a CUSIP number for the Shares of Common Stock, in each case not later than
the effective date of such Registration Statement.
(l) Deliver promptly, upon request, to the group of Holders participating
in the offering (acting as a committee for purposes of this paragraph (l) that
the Company does not have to deal separately with each Holder) copies of all
correspondence between the SEC and the Company, its counsel or independent
public accountants and all memoranda relating to discussions with the SEC or its
staff with respect to the registration statement; permit such group and a single
counsel for such group to participate in the preparation of such registration
statement, each prospectus included therein or filed with the SEC, and each
amendment thereof or supplement thereto; and give such group, and counsel for
such group, at the expense of such group, reasonable access (subject to
appropriate confidentiality arrangements) to the Company's books, records,
documents and properties and such opportunities to discuss the business of the
Company with its officers or directors and independent public accountants as
shall be necessary, in the opinion of such group and its counsel to conduct a
reasonable investigation within the meaning of the Securities Act.
(m) In the event of an underwritten offering furnish (at no cost), at the
request of any Holder requesting registration of Registrable Securities pursuant
to this Agreement, each Holder participating in the offering and to each
underwriter, (i) on the date that such Registrable Securities are delivered to
the underwriters for sale in connection with a registration pursuant to this
Agreement, an opinion, dated such date, of the counsel representing the Company
for the purposes of such registration, in form and substance as is customarily
given to underwriters in an underwritten public offering, addressed to the
underwriters and to the Holders participating in such offering and (ii) on the
date that the registration statement with respect to such securities becomes
effective, a "comfort" letter dated such date, from the independent certified
public accountants of the Company, in form and substance as is customarily given
by independent certified public accountants to underwriters in an underwritten
public offering, addressed to the underwriters and to the Holders participating
in such offering, and a reaffirmation of such letter on the date that such
Registrable Securities are delivered to the underwriters for sale.
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(n) Solely in the event of any underwritten public offering, enter into
and perform its obligations under an underwriting agreement, in usual and
customary form, with the managing underwriter of such offering.
4. HOLDER' OBLIGATIONS. It shall be a condition precedent to the
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obligations of the Company to take any action pursuant to this Agreement with
respect to the Registrable Securities of any selling Holder that such Holder
shall furnish to the Company such information regarding itself, the Registrable
Securities held by it, and the intended method of disposition of such securities
as shall be required to effect the registration of such Holder's Registrable
Securities. Each Holder shall give five days advance written notice of its
intention to sell Registrable Securities under a Registration Statement to
enable the Company to evaluate the Registration Statement and give any necessary
notice contemplated by Section 3(f) above. The Holders shall, upon receipt of
any notice from the Company of the happening of any event of the kind described
in Section 3(f) hereof, forthwith discontinue disposition of Registrable
Securities pursuant to the Prospectus or Registration Statement covering such
Registrable Securities until the Holders shall have received copies of the
supplemented or amended Prospectus contemplated by Section 3(f) hereof, and, if
so directed by the Company, the Holders shall deliver to the Company (at the
Company's expense) all copies, other than permanent file copies then in the
Holders' possession, of the Prospectus covering such Registrable Securities
current at the time of receipt of such notice.
5. EXPENSES OF REGISTRATION. The Company shall bear and pay all expenses
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incurred in connection with any registration, filing or qualification of
Registrable Securities with respect to the registration of Registrable
Securities, including without limitation all registration, filing and
qualification fees, printers, and accounting fees relating or apportionable
thereto, and up to $10,000 of fees and expenses of one counsel to the selling
stockholders (selected by the holders of a majority of the securities being
registered), but excluding underwriting discounts and commissions relating to
Registrable Securities.
6. INDEMNIFICATION. In the event any Registrable Securities are included
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in a registration statement under this Agreement:
(a) The Company will indemnify and hold harmless each Holder, its heirs,
personal representatives and assigns, and each of such Holder's partners,
members, stockholders, managers, agents, officers, directors, employees,
affiliates, any underwriter (as defined in the Securities Act) for such Holder
and each Person, if any, who controls such Holder or underwriter within the
meaning of the Securities Act or the Exchange Act against any losses, claims,
damages or liabilities (joint or several) to which any of the foregoing persons
may become subject under the Securities Act, the Exchange Act or other federal
or state law, insofar as such losses, claims, damages or liabilities (or actions
in respect thereof) arise out of or are based upon a violation; and the Company
will pay to each such indemnified party, as incurred, any legal or other
expenses reasonably incurred by them in connection with investigating or
defending any such loss, claim, damage or liability; provided, however, that the
indemnity agreement contained in this Section 6(a) shall not apply to amounts
paid in settlement of any such loss, claim, damage or liability if such
settlement is effected without the consent of the Company (which consent shall
not be unreasonably withheld or delayed), nor shall the Company be liable in any
such case to a particular indemnified party for any such loss, claim, damage or
liability to the extent that it
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arises out of or is based upon a Violation which occurs in reliance upon and in
conformity with written information furnished expressly for use in connection
with such registration by such indemnified party or as a result of the
indemnified party's breach of Section 4 above.
(b) Each selling Holder, severally and not jointly, will indemnify and
hold harmless the Company, each of its directors, each of its officers who has
signed the registration statement, each Person, if any, who controls the Company
within the meaning of the Securities Act, any underwriter, any other Holder
selling securities in such registration statement and any controlling Person of
any such underwriter or other Holder, against any losses, claims, damages or
liabilities (joint or several) to which any of the foregoing Persons may become
subject under the Securities Act, the Exchange Act or other federal or state
law, insofar as such losses, claims, damages or liabilities (or actions in
respect thereto) arise out of or are based upon any violation, in each case to
the extent (and only to the extent) that such Violation occurs in reliance upon
and in conformity with written information furnished by or on behalf of such
Holder expressly for use in connection with such registration or results from
the Holder's breach of Section 4 above; and each such Holder will pay to each
such indemnified party, as incurred, any legal or other expenses reasonably
incurred by them, in connection with investigating or defending any such loss,
claim, damage or liability; provided, however, that the indemnity agreement
contained in this Section 6(b) shall not apply to amounts paid in settlement of
any such loss, claim, damage or liability if such settlement is effected without
the consent of the Holder (which consent shall not be unreasonably withheld or
delayed); and provided, further, that the indemnity agreement contained in this
paragraph shall not apply in the case of a sale directly by the Company of its
securities (including a sale of such securities through any lead institution or
underwriter retained by the Company to engage in a distribution solely on behalf
of the Company) in which an untrue statement or omission or alleged untrue state
or omission was contained in a preliminary prospectus and corrected in a final
or amended prospectus, and the Company or such lead institution or underwriter
failed to deliver a copy of the final or amended prospectus at or prior to the
sale of the Registrable Securities.
(c) Each Holder shall severally, and not jointly, indemnify, defend and
hold harmless the Company and its affiliates, promptly upon demand at any time
and from time to time, against any and all losses, liabilities, claims, actions,
damages and expenses (including, without limitation, reasonable attorneys, fees
and disbursements), arising out of or in connection with any misrepresentation
or breach of any warranty made by such Holder herein.
(d) Promptly after receipt by an indemnified party under this Section 6 of
written notice of the commencement of any action (including any governmental
action) involving a claim referred to in Section 6(a), 6(b) or 6(c) of this
Agreement, such indemnified party will, if a claim in respect thereof is to be
made against any indemnifying party under this Section 6, deliver to the
indemnifying party a written notice of the commencement thereof and the
indemnifying party shall have the right to participate in, and, to the extent
the indemnifying party so desires, jointly with any other indemnifying party
similarly noticed, to assume the defense thereof with counsel mutually and
reasonably satisfactory to the parties; provided, however, that an indemnified
party shall have the right to retain its own counsel reasonably satisfactory to
the indemnifying party, with the fees and expenses to be paid by the
indemnifying party, if representation of such indemnified party by the counsel
retained by the indemnifying party would be inappropriate due to actual or
potential differing interests between such indemnified
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party and any other party represented by such counsel in such proceeding. The
failure to deliver written notice to the indemnifying party within a reasonable
time of the commencement of any such action shall not relieve such indemnifying
party of any liability to the indemnified party under this Section 6 except if,
and only to the extent that, the indemnifying party is actually prejudiced
thereby; and such failure to deliver written notice to the indemnifying party
will not relieve it of any liability that it may have to any indemnified party
otherwise than under this Section 6. The indemnifying party will not, without
the prior written consent of each indemnified party, settle or compromise or
consent to the entry of any judgment in any pending or threatened claim, action,
suit or proceeding in respect of which indemnification may be sought hereunder
(whether or not such indemnified party or any Person who controls such
indemnified party is a party to such claim, action, suit or proceeding), unless
such settlement, compromise or consent includes an unconditional release of such
indemnified party from all liability arising out of such claim, action suit, or
proceeding and such settlement, compromise or consent involves only the payment
of money and such money is actually paid by the indemnifying party. Whether or
not the defense of any claim or action is assumed by the indemnifying party,
such indemnifying party will not be subject to any liability for any settlement
made without its consent, which consent will not be unreasonably withheld or
delayed.
(e) The obligations of the Company and Holders under this Section 6 shall
survive the completion of any offering of Registrable Securities in a
registration statement under this Agreement, and otherwise.
(f) Any indemnity agreements contained herein shall be in addition to any
other rights to indemnification or contribution which any indemnified party may
have pursuant to law or contract and shall remain operative and in full force
and effect regardless of any investigation made or omitted by or on behalf of
any indemnified party.
(g) With respect to the indemnity in Section 6(a) and 6(b), if for any
reason such indemnity is unavailable, then the indemnifying party shall
contribute to the amount paid or payable by the indemnified party as a result of
such losses, claims, damages, liabilities or expenses (i) in such proportion as
is appropriate to reflect the relative benefits received by the indemnifying
party on the one hand and the indemnified party on the other or (ii) if the
allocation provided by clause (i) above is not permitted by applicable law or
provides a lesser sum to the indemnified party than the amount hereinafter
calculated, in such proportion as is appropriate to reflect not only the
relative benefits received by the indemnifying party on the one hand and the
indemnified party on the other but also the relative fault of the indemnifying
party and the indemnified party as well as any other relevant equitable
considerations. The relative fault 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 or on behalf of the indemnifying party or the
indemnified party and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such untrue statement or
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.
Notwithstanding anything to the contrary in this Section 6, no Holder shall be
required, pursuant to this Section 6, to contribute any amount in excess of the
net proceeds received by such indemnifying party from the sale of Shares of
Common Stock in the offering to which the losses, claims, damages, liabilities
or
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expenses of the indemnified party relate, nor shall any Holder be required to
contribute any amounts in excess of the amount such Holder would have been
required to pay to an indemnified party if the indemnity under Section 6(b) of
this Agreement were available.
7. REPORTS UNDER THE EXCHANGE ACT. With a view to making available to the
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Holders the benefits of Rule 144 under the Securities Act, as such rule may from
time to time be amended, and any other rule or regulation now or hereafter
adopted by the SEC that may at any time permit a Holder to sell securities of
the Company to the public without registration or pursuant to a registration
statement, the Company agrees at its sole cost to:
(a) make and keep public information available, as those terms are
understood and defined in Rule 144 under the Securities Act, at all times after
the effective date of the first registration statement filed by the Company for
the offering of its securities to the general public;
(b) take such action as is necessary to enable the Holders to utilize a
registration statement for the resale of their Registrable Securities;
(c) file with the SEC in a timely manner all reports and other documents
required of the Company under the Securities Act and the Exchange Act; and
(d) furnish to any Holder, so long as the Holder owns any Registrable
Securities, forthwith upon request (i) a written statement by the Company that
it has complied with the reporting requirements of Rule 144 under the Securities
Act (at any time after the effective date of the first registration statement
filed by the Company) and the Securities Act and Exchange Act (at any time after
it has become subject to such reporting requirements) or that it qualifies as a
registrant whose securities may be resold pursuant to Form S-3 (at any time it
so qualifies), (ii) a copy of the most recent annual or quarterly report of the
Company and such other reports and documents so filed by the Company and (iii)
such other information as may be reasonably requested in availing any Holder of
any rule or regulation of the SEC which permits the selling of any such
securities without registration or pursuant to such form.
8. ASSIGNMENT OF REGISTRATION RIGHTS. The rights contained herein may be
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assigned in whole or in part by a Holder to one or more of its partners,
employees or affiliates or to one or more transferees or assignees of
Registrable Securities (or securities exchangeable into Registrable Securities)
acquired by the Holder with the consent of the Company, not to be unreasonably
withheld, provided that such transferee or assignee delivers to the Company a
written instrument by which such transferee or assignee agrees to be bound by
the obligations imposed on Holders under this Agreement to the same extent as if
such transferee or assignee was a party hereto.
9. BLACK-OUT PERIOD AGREEMENT. In consideration for the Company agreeing
--------------------------
to its obligations under this Agreement, the Holders agree in connection with
any registration of the Company's securities (other than pursuant to a
Registration Statement (A) on Form S-8 or any successor form relating to
securities issuable pursuant to any benefit plan; (B) on Form S-4, or any
successor form relating to an exchange offer or relating to a transaction
pursuant to Rule 145 under the Act; or (C) on Form S-3 or any successor form
with respect to securities registered in connection with dividend reinvestment
plans and similar plans only) ,
10
that, upon the request of the underwriters managing any underwritten offering of
the Company's securities, not to sell, make any short sale of, loan, grant any
option for the purchase of, or otherwise dispose of any of the Common Stock
(other than those included in the registration) without the prior written
consent of such underwriters for up to 180 days after the effective date of such
registration, and only if all members of the Board of Directors, employees and
affiliates of the Company whose securities are included in such registration
agree to substantially identical restrictions in connection therewith. The
restrictions in this Section 9 shall not prevent a Holder from selling shares of
Common Stock purchased by it in the public markets, provided that such Holder is
not in a net short position with respect to publicly tradable Common Stock or
other derivative securities with respect thereto at any time during such 180-day
period.
10. AMENDMENT; WAIVER. Any provision of this Agreement may be amended only
-----------------
with the written consent of the Company and each of the Principal Holders and
the observance of any provision of this Agreement may be waived (either
generally or in a particular instance and either retroactively or prospectively)
only with the written consent of the party to be charged, provided that the
Principal Holders may act on behalf of all such Holders of Registrable
Securities. Any amendment or waiver effected in accordance with this Section 10
shall be binding upon each Holder of Registrable Securities at the time
outstanding, each future Holder of all such securities, and the Company.
11. CHANGES IN REGISTRABLE SECURITIES. If, and as often as, there are any
---------------------------------
changes in the Registrable Securities, by way of stock split, stock dividend,
combination or reclassification, or through merger, consolidation,
reorganization or recapitalization, or by any other means, appropriate
adjustment shall be made in the provisions of this Agreement, as may be
required, so that the rights and privileges granted hereby shall continue with
respect to the Registrable Securities as so changed. Without limiting the
generality of the foregoing, the Company will require any successor by merger or
consolidation to assume and agree to be bound by the terms of this Agreement, as
a condition to any such merger or consolidation, provided, however, that the
restrictions in Section 9 hereof shall no longer be applicable upon such a
merger or consolidation of the Company.
12. ENTIRE AGREEMENT EFFECTIVENESS OF AGREEMENT. This Agreement (together
-------------------------------------------
with the Exchange Agreement and the related Stockholders' Agreement) constitutes
the full and entire understanding and agreement among the parties with regard to
the subject matter hereof. Nothing in this Agreement, express or implied, is
intended to confer upon any Person, other than the parties hereto and their
respective successors and assigns, any rights, remedies, obligations, or
liabilities under or by reason of this Agreement, except as expressly provided
herein.
13. GOVERNING LAW. This Agreement shall be governed in all respects by the
-------------
laws of the State of New York as such laws are applied to agreements between New
York residents entered into and to be performed entirely within New York,
whether or not all parties hereto are residents of New York.
11
14. SUCCESSORS AND ASSIGNS. The provisions hereof shall inure to the
----------------------
benefit of, and be binding upon, the successors, permitted assigns (as provided
in Section 8), heirs, executors and administrators of the parties hereto.
15. NOTICES. Unless otherwise provided herein, any notice, request,
-------
instruction or other documents to be given hereunder by any party to any other
party or parties shall be in writing and delivered in person or by courier or by
facsimile transmission (followed by mailing certified mail, postage prepaid,
return receipt requested) or mailed by certified mail, postage prepaid, return
receipt requested, as follows:
(i) If to the Company, to it at the following address:
Environmental Power Corporation
000 Xxxxxx Xxxxxx, Xxxxx 0X
Xxxxxxxxxx, XX 00000
Attn: Chief Executive Officer
Telephone: (000) 000-0000
Fax: (000) 000-0000
With a copy to:
Xxxxxx & Xxxxxxx LLP
000 Xxxx Xxxxxx
Xxx Xxxx, X.X. 00000
Attention: Xxxxxx X. Xxxxxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
(ii) If to Xxxxxx or Xxxxxxxxxx, to him at the following address:
Environmental Power Corporation
000 Xxxxxx Xxxxxx, Xxxxx 0X
Xxxxxxxxxx,XX 00000
Telephone: (000) 000-0000
Fax: (000) 000-0000;
With a copy to:
Xxxxxx & Whitney LLP
000 Xxxx Xxxxxx
Xxx Xxxx, X.X. 00000
Attention: Xxxxxx X. Xxxxxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
(iii)If to a Principal Microgy Holder, to it at the address listed on
Schedule 2.1 to the Exchange Agreement; and
12
With a copy to, in the case of Messrs. Eastman, Brunner, Xxxx, Xxxxx
and Xxxxx:
D. Xxxxxxxxx Xxxxx, Esq.
Rothgerber Xxxxxxx & Xxxxx LLP
0000 00/xx/ Xxxxxx, Xxxxx 0000
Xxxxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
With a copy to, in the case of all other Principal Microgy Holders:
Xxxxx X. Xxxxxxx, Esq.
Xxxxxxx & Associates
Counselors at Law, P.C.
00 Xxxx 00/xx/ Xxxxxx, Xxxxx 000
Xxx Xxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
(iv) If to another Holder, to it c/o Xxxxxx X. Xxxx and/or Xxxxxxxx X.
Xxxxx.
or to such other place and with such other copies as any party may designate as
to itself by written notice to the others.
All such notices, requests, instructions, documents and other
communications will (i) if delivered personally to the address as provided in
this Section 15, be deemed given upon delivery, (ii) if delivered by facsimile
transmission to the facsimile number as provided in this Section 15, be deemed
given upon receipt, and (iii) if delivered by mail in the manner described above
to the address as provided in this Section 15, be deemed given upon receipt (in
each case regardless of whether such notice is received by any other Person to
whom a copy of such communication is to be delivered pursuant to this Section
15.
16. SEVERABILITY. Any invalidity, illegality or limitation on the
------------
enforceability of this Agreement or any part thereof, by any party, whether
arising by reason of the law of the respective party's domicile or otherwise,
shall in no way affect or impair the validity, legality or enforceability of
this Agreement with respect to the other party. If any provision of this
Agreement shall be judicially determined to be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.
13
17. TITLES AND SUBTITLES. The titles of the Sections of this Agreement are
--------------------
for convenience of reference only and are not to be considered in construing
this Agreement.
18. DELAYS OR OMISSIONS; REMEDIES CUMULATIVE. It is agreed that no delay
----------------------------------------
or omission to exercise any right, power or remedy accruing to the parties, upon
any breach or default of the Company under this Agreement, shall impair any such
right, power or remedy, nor shall it be construed to be a waiver of any such
breach or default, or any acquiescence therein, or of 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. It is further agreed that any waiver, permit, consent or
approval of any kind or character by a party of any breach or default under this
Agreement, or any waiver by a party of any provisions or conditions of this
Agreement must be in writing and shall be effective only to the extent
specifically set forth in writing and that all remedies, either under this
Agreement, or by law or otherwise afforded to a party, shall be cumulative and
not alternative.
19. 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.
20. FURTHER ASSURANCES. Each party shall do and perform, or cause to be
------------------
done and performed, all such further acts and things, and shall execute and
deliver all such other agreements, certificates, instruments and documents, as
the other party may reasonably request in order to carry out the intent and
accomplish the purposes of this Agreement and the consummation of the
transactions contemplated hereby.
21. REMEDIES. In the event of a breach by any party to this Agreement of
--------
its obligations under this Agreement, any party injured by such breach, in
addition to being entitled to exercise all rights granted by law, including
recovery of damages and costs (including reasonable attorneys' fees), will be
entitled to specific performance of its rights under this Agreement. The parties
agree that the provisions of this Agreement shall be specifically enforceable
without the posting of a bond or other security and without proof of actual
damages, it being agreed by the parties that the remedy at law, including
monetary damages, for breach of any such provision will be inadequate
compensation for any loss and that any defense in any action for specific
performance that a remedy at law would be adequate is waived.
22. RECAPITALIZATIONS, EXCHANGES, ETC. The provisions of this Agreement
---------------------------------
shall apply, to the full extent set forth herein, to any and all shares of the
Company capital stock or any successor or assign of the Company (whether by
merger, consolidation, sale of assets, or otherwise, including shares issued by
a parent corporation in connection with a triangular merger) which may be issued
in respect of, in exchange for or in substitution of, shares of Common Stock,
and shall be appropriately adjusted for any stock dividends, splits, reverse
splits, combinations, reclassifications and the like occurring after the date
hereof.
[END OF TEXT]
14
[SIGNATURE PAGE TO REGISTRATION RIGHTS AGREEMENT]
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as
of the date and year first above written.
ENVIRONMENTAL POWER CORPORATION
By: __________________________________
Name:
Title:
EXCHANGING SHAREHOLDERS:
______________________________________
Xxxxxx X. Xxxx
______________________________________
Xxxxxxxx X. Xxxxx
______________________________________
Xxxxxx X. Xxxxxxx
______________________________________
Xxxxxx X. Xxxxxxx
______________________________________
Xxxx X. X'Xxxx
______________________________________
Xxxxx X. Xxxxxx
15
XXXXXXX XXXXXXX AND XXXXX XXXXXX, AS
TRUSTEES OF THE TRUST U/W/O XXXXXX
XXXXXXX FBO XXXXXXX XXXXXXX
________________________________________
Xxxxxxx Xxxxxxx, Trustee
________________________________________
Xxxxx Xxxxxx, Trustee
XXXXXXXX VENTURES INC. MONEY
PURCHASE PENSION PLAN DLJSC -CUSTODIAN FBO XXXXXXX
XXXXXXX TRUSTEE
By: __________________________________
Name:
Title:
AMRO INTERNATIONAL, S.A.
By: __________________________________
Name:
Title:
_____________________________________
Xxxxx Xxxxxx
_____________________________________
Xxxx X. Xxxxx
HITEL GROUP
By: __________________________________
Name:
Title:
16
OTHER HOLDERS:
___________________________________
Xxxxxx X. Xxxxxx
___________________________________
Xxxxxx X. Xxxxxxxxxx
17
[COUNTERPART SIGNATURE PAGE
FOR ADDITIONAL EXCHANGING SHAREHOLDER(S)]
Name: _______________________________________
Signature: __________________________________
Title (if applicable): ______________________
Name: _______________________________________
Signature: __________________________________
Title (if applicable): ______________________
Name: _______________________________________
Signature: __________________________________
Title (if applicable): ______________________
Name: _______________________________________
Signature: __________________________________
Title (if applicable): ______________________
18
