EXHIBIT 2
VOTING AGREEMENT
This VOTING AGREEMENT, dated March 21, 2003 (this "Agreement"), by and
among Evergreen Solar, Inc., a Delaware corporation (the "Company") and each of
the Stockholders listed on the signature pages hereof (each, a "Stockholder"
and, collectively, the "Stockholders"). Unless otherwise provided in this
Agreement, capitalized terms used herein have the respective meanings given to
them in that certain Stock and Warrant Purchase Agreement, dated as of even date
herewith (the "Purchase Agreement"), among Perseus 2000, L.L.C. ("Perseus"), Nth
Power Technologies Fund II, LP ("Nth Power II"), Nth Power Technologies Fund
II-A, LP ("Nth Power II-A" and together with Nth Power II, "Nth Power"),
RockPort Capital Partners, L.P. ("Rockport"), RP Co-Investment Fund, I ("RP
Co-Investment"), Micro-Generation Technology Fund, LLC ("Micro-Generation"),
UVCC Fund II ("UVCC II"), UVCC II Parallel Fund, L.P. ("UVCC II Parallel" and
together with Micro-Generation and UVCC II, "Arete Funds"), Caisse de depot et
placement du Quebec ("CDP"), CDP Capital - Technology Ventures U.S. Fund 2002
L.P. ("CDP Capital"), Beacon Power Corporation ("Beacon"), Massachusetts
Technology Park Corporation ("MTPC"), Zero Stage Capital VII, L.P. ("Zero
Stage"), Zero Stage Capital (Cayman) VII, L.P. ("Zero Stage Cayman"), Zero Stage
Capital SBIC VII, L.P. ("Zero Stage SBIC"), IMPAX Environmental Markets plc
("Impax"), Xxxxxxx Xxxxx New Energy Technology Fund ("Xxxxxxx Xxxxx New Energy
Fund"), MLIIF New Energy Fund ("MLIIF"), PNE Invest Limited ("PNE"), Odyssey
Fund ("Odyssey"), XXX Private Equity Energy Fund LP ("XXX Energy Fund"), XXX
Sustainability Private Equity LP ("XXX Private Equity") and XXX Xxxxx Energy
("XXX Xxxxx Energy" and together with Perseus, Nth Power, Rockport, RP
Co-Investment, Arete Funds, CDP, CDP Capital, Beacon, MTPC, Zero Stage, Zero
Stage Cayman, Zero Stage SBIC, Impax, Xxxxxxx Xxxxx New Energy Fund, MLIIF, PNE,
Odyssey, XXX Energy Fund, XXX Private Equity and XXX Xxxxx Energy, the
"Purchasers").
WHEREAS, pursuant to the Purchase Agreement, the Company has agreed to
issue and sell (i) to the Purchasers, an aggregate of [________] shares of
Series A Convertible Participating Preferred Stock, par value $0.01 per share,
of the Company (the "Series A Preferred Stock") and (ii) to Beacon, the Beacon
Warrant;
WHEREAS, the Third Amended and Restated Certificate of Incorporation of the
Company must be amended (i) to increase the amount of the Company's authorized
preferred stock, so that a sufficient number of shares will be available for
issuance of the Series A Preferred Stock and (ii) to increase the amount of the
Company's authorized common stock, par value $0.01 per share (the "Common
Stock"), so that a sufficient number of shares will be available for issuance
upon conversion of the Series A Preferred Stock and the exercise of the Beacon
Warrant ((i) and (ii) of this paragraph are collectively referred to herein as
the "Charter Amendment");
WHEREAS, the Purchase Agreement contemplates that on or before the Closing
Date, the Board of Directors of the Company (the "Board") shall be comprised of
eight (8) directors and the Company shall have caused (i) one representative
designated by Perseus, (ii) one representative designated by Nth Power, (iii)
one representative designated by Rockport, (iv) one representative designated by
Micro-Generation and (v) one representative designated by CDP to be elected to
the Board by the stockholders of the Company at the Stockholders Meeting (the
"Director Elections), unless the appointment of such designees is accomplished
by resolution of the Board outside of the Stockholders Meeting;
WHEREAS, the rules and regulations of the Nasdaq National Market ("NASDAQ")
will limit or prohibit (i) the issuance of the Series A Preferred Stock (the
"Preferred Stock Issuance") and (ii) the issuance of shares of Common Stock upon
conversion of the Series A Preferred Stock and exercise of the Beacon Warrant
(the "Common Stock Issuance") unless and until the stockholders of the Company
have voted to approve such Preferred Stock Issuance and Common Stock Issuance as
required by NASDAQ (together with the stockholder vote to approve the Charter
Amendment and the Director Elections, the "Stockholder Vote");
WHEREAS, it is a condition to the Purchasers' obligations under the
Purchase Agreement that the Company and the Stockholders enter into this
Agreement for the purpose of setting forth the terms and conditions pursuant to
which the Stockholders will vote all their (i) shares of Common Stock now owned
or that may hereafter be acquired (whether upon the exercise of warrants or
options or otherwise) by such Stockholder (the "Owned Stock") and (ii) options
and rights to purchase Common Stock and any other shares of voting capital stock
of the Company now owned or that may hereafter be acquired by such Stockholder
(collectively with the Owned Stock, the "Shares"); and
WHEREAS, in order to induce the Purchasers to enter into the Purchase
Agreement, (i) the Purchasers have requested that the Stockholders, and such
Stockholders have agreed to, enter into this Agreement with respect to all of
the Shares that such Stockholders beneficially own and (ii) the Stockholders and
the Company acknowledge that each of the Purchasers is a third party beneficiary
of this Agreement.
NOW, THEREFORE, for good and valuable consideration the receipt and
sufficiency of which is hereby acknowledged, the parties hereto agree as
follows:
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ARTICLE 1
VOTING AGREEMENT; GRANT OF PROXY;
Section 1.01. Voting Agreement. Each Stockholder hereby agrees that during
the time this Agreement is in effect to vote all Shares that such Stockholder is
entitled to vote to approve (i) the Charter Amendment, (ii) the Director
Elections, (iii) the Preferred Stock Issuance, (iv) the Common Stock Issuance
and (v) any other matters relating to the transactions contemplated by the
Purchase Agreement requiring a stockholder vote, at any meeting of the
stockholders of the Company, and at any adjournment thereof, and on any other
occasion in respect of which the consent of such Stockholder with respect to its
Shares may be given or may be requested or solicited by the Company or the
Purchasers, whether at a meeting or pursuant to the execution of a written
consent or otherwise, for all purposes in connection with any of the foregoing
matters. Each Stockholder hereby agrees that during the time this Agreement is
in effect it will not vote any Shares in favor of the approval of any corporate
action the consummation of which would frustrate the purposes, or prevent or
delay the consummation, of the transactions contemplated by the Purchase
Agreement, including the issuance of the Series A Preferred Stock and the Beacon
Warrant.
Section 1.02. Irrevocable Proxy. Each Stockholder hereby revokes any and
all previous proxies granted with respect to its Shares. By entering into this
Agreement, each Stockholder hereby grants a proxy appointing each of Xxxx X.
Xxxxxx and Xxxxxxx X. Xxxxxxxxx (each, an "Attorney-in-Fact") as such
Stockholder's attorney-in-fact and proxy, with full power of substitution, for
and in such Stockholder's name, to vote, express, consent or dissent, or
otherwise to utilize such voting power solely in the manner contemplated by
Section 1.01 above as either Attorney-in-Fact or its proxy or substitute shall,
in such Attorney-in-Fact's sole discretion, deem proper with respect to such
Stockholder's Shares. The proxy granted by each Stockholder pursuant to this
Article 1 is coupled with an interest, is irrevocable and is granted in
consideration of the Purchasers entering into the Purchase Agreement and
incurring certain related fees and expenses. The proxy granted by each
Stockholder shall be automatically revoked upon termination of this Agreement in
accordance with its terms.
ARTICLE 2
REPRESENTATIONS AND WARRANTIES OF STOCKHOLDERS
Each Stockholder, severally and not jointly, represents and warrants to the
Company and the Purchasers that:
Section 2.01. Authorization; Capacity. The execution, delivery and
performance by such Stockholder (if not an individual) of this Agreement and the
consummation by such Stockholder of the transactions contemplated hereby are
within the powers (corporate or otherwise) of such Stockholder and have been
duly
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authorized by all necessary action (corporate or otherwise) on the part of such
Stockholder. Such Stockholder (if an individual) has the legal capacity to enter
into this Agreement. This Agreement constitutes a valid and binding Agreement of
such Stockholder.
Section 2.02. Non-contravention. The execution, delivery and performance
by such Stockholder of this Agreement and the consummation of the transactions
contemplated hereby do not and will not (i) violate the constituent documents,
if any, of such Stockholder, (ii) violate any applicable law, rule, regulation,
judgment, injunction, order or decree or (iii) require any consent or other
action by any person under, constitute a default under, or give rise to any
right of termination, cancellation or acceleration or to a loss of any benefit
to which such Stockholder is entitled under any provision of any agreement or
other instrument binding on such Stockholder.
Section 2.03. Ownership Of Shares. Such Stockholder is, as of the date
hereof, the record and beneficial owner of the Shares set forth opposite the
name of such Stockholder on Schedule 2.03 hereto, free and clear of any lien and
any other limitation or restriction (including any restriction on the right to
vote or otherwise dispose of such Shares). None of the Shares is subject to any
voting trust or other agreement or arrangement with respect to the voting of
such Shares. Except for the Shares set forth opposite the name of such
Stockholder on Schedule 2.03 hereto, as of the date hereof, such Stockholder
does not beneficially own any (i) shares of capital stock or voting securities
of the Company, (ii) securities of the Company convertible into or exchangeable
for shares of capital stock or voting securities of the Company or (iii) options
or other rights to acquire from the Company any capital stock, voting securities
or securities convertible into or exchangeable for capital stock or voting
securities of the Company.
Section 2.04. Finder's Fees. No investment banker, broker, finder or other
intermediary is entitled to a fee or commission from any person other than such
Stockholder in respect of this Agreement based upon any arrangement or agreement
made by or on behalf of such Stockholder.
ARTICLE 3
COVENANTS OF STOCKHOLDERS
Each Stockholder hereby covenants and agrees that:
Section 3.01. No Proxies for or Encumbrances on Shares. Except pursuant to
the terms of this Agreement, during the term of this Agreement, such Stockholder
shall not directly or indirectly, (i) grant any proxies or enter into any voting
trust or other agreement or arrangement with respect to the voting of any of its
Shares or (ii) sell, assign, transfer, encumber or otherwise dispose of, or
enter into any contract, option or other arrangement or understanding with
respect to the direct or indirect
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sale, assignment, transfer, encumbrance or other disposition of, any of its
Shares, except in connection with prearranged sales under 10b-5 plans..
ARTICLE 4
MISCELLANEOUS
Section 4.01. Notices. All notices, demands and other communications
provided for or permitted hereunder shall be made in writing and shall be by
registered or certified first-class mail, return receipt requested, telecopier,
courier service or personal delivery:
if to the Company:
Evergreen Solar, Inc.
000 Xxxxx Xxxx Xxxxxx
Xxxxxxxx, XX 00000
Telecopy: (000) 000-0000
Attention: Xxxx X. Xxxxxx
with a copy to:
Xxxxx, Xxxxxxx & Xxxxxxxxx, LLP
000 Xxxx Xxxxxx
Xxxxxx, XX 00000
Telecopy: (000) 000-0000
Attention: Xxxxxxxx X. Gold, Esq.
and
the address set forth under each Purchaser's name on Schedule
2.1 of the Purchase Agreement
and
Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx LLP
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000-0000
Telecopy: (000) 000-0000
Attention: Xxxxx X. Xxxxxxxxx, Esq.
if to the Stockholders:
to the address set forth under each Stockholder's name on
Schedule 2.03 hereto
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with a copy to:
the address set forth under each Purchaser's name on Schedule
2.1 of the Purchase Agreement
and
Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx LLP
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000-0000
Telecopy: (000) 000-0000
Attention: Xxxxx X. Xxxxxxxxx, Esq.
All such notices, demands and other communications shall be deemed to have
been duly given when delivered by hand, if personally delivered; when delivered
by courier, if delivered by commercial courier service; five (5) Business Days
after being deposited in the mail, postage prepaid, if mailed; and when receipt
is mechanically acknowledged, if telecopied. Any party may by notice given in
accordance with this Section 4.01 designate another address or Person for
receipt of notices hereunder.
Section 4.02. Successors and Assigns; Third Party Beneficiaries. The
provisions of this Agreement shall be binding upon and inure to the benefit of
the parties hereto and their respective successors and assigns; provided that no
party may assign, delegate or otherwise transfer any of its rights or
obligations under this Agreement without the consent of the other parties
hereto. No provision of this Agreement is intended to confer upon any person,
other than the parties hereto and the Purchasers, any rights or remedies
hereunder. The parties hereto acknowledge that each of the Purchasers is a third
party beneficiary of this Agreement and shall be entitled to enforce the
provisions hereof as if it were a party hereto.
Section 4.03. Amendments; Termination. Any provision of this Agreement may
be amended or waived if, but only if, such amendment or waiver is in writing and
is signed, in the case of an amendment, by each party to this Agreement and the
Purchasers or in the case of a waiver, by the party against whom the waiver is
to be effective and the Purchasers. This Agreement shall terminate upon the
earlier of (i) the termination of the Purchase Agreement in accordance with its
terms and (ii) the occurrence of the Stockholder Vote.
Section 4.04. Counterparts. This Agreement may be executed in any number
of counterparts and by the parties hereto in separate counterparts, each of
which when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement. The parties hereto confirm
that any facsimile copy of another party's executed counterpart of this
Agreement (or its signature page thereof) will be deemed to be an executed
original thereof.
Section 4.05. Headings. The headings in this Agreement are for convenience
of reference only and shall not limit or otherwise affect the meaning hereof.
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Section 4.06. GOVERNING LAW; CONSENT TO JURISDICTION. THIS AGREEMENT SHALL
BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW
YORK WITHOUT REGARD TO THE PRINCIPLES OF CONFLICTS OF LAW THEREOF. The parties
hereto irrevocably submit to the non-exclusive jurisdiction of any state or
federal court sitting in the County of New York, in the State of New York over
any suit, action or proceeding arising out of or relating to this Agreement or
the affairs of the Company. To the fullest extent they may effectively do so
under applicable law, the parties hereto irrevocably waive and agree not to
assert, by way of motion, as a defense or otherwise, any claim that they are not
subject to the jurisdiction of any such court, any objection that they may now
or hereafter have to the laying of the venue of any such suit, action or
proceeding brought in any such court and any claim that any such suit, action or
proceeding brought in any such court has been brought in an inconvenient forum.
Section 4.07. Severability. If any one or more of the provisions contained
herein, or the application thereof in any circumstance, is held invalid, illegal
or unenforceable in any respect for any reason, the validity, legality and
enforceability of any such provision in every other respect and of the remaining
provisions hereof shall not be in any way impaired, unless the provisions held
invalid, illegal or unenforceable shall substantially impair the benefits of the
remaining provisions hereof.
Section 4.08. Rules of Construction. Unless the context otherwise
requires, references to sections or subsections refer to sections or subsections
of this Agreement.
Section 4.09. Entire Agreement. This Agreement is intended by the parties
as a final expression of their agreement and intended to be a complete and
exclusive statement of the agreement and understanding of the parties hereto
with respect to the subject matter contained herein. There are no restrictions,
promises, representations, warranties or undertakings with respect to the
subject matter contained herein, other than those set forth or referred to
herein. This Agreement supersedes all prior agreements and understandings among
the parties with respect to such subject matter.
Section 4.10. Further Assurances. Each Stockholder will execute and
deliver, or cause to be executed and delivered, all further documents and
instruments and use its best efforts to take, or cause to be taken, all actions
and to do, or cause to be done, all things necessary, proper or advisable under
applicable laws and regulations, to consummate and make effective the
transactions contemplated by this Agreement.
Section 4.11. Expenses. Except as otherwise provided in the Purchase
Agreement, all costs and expenses incurred in connection with this Agreement
shall be paid by the party incurring such cost or expense.
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Section 4.12. Specific Performance. Each party hereto acknowledges that
the remedies at law of the other parties for a breach or threatened breach of
this Agreement would be inadequate and, in recognition of this fact, any party
to this Agreement or the Purchasers, without posting any bond, and in addition
to all other remedies which may be available, shall be entitled to obtain
equitable relief in the form of specific performance, a temporary restraining
order, a temporary or permanent injunction or any other equitable remedy which
may then be available. The rights and remedies herein provided shall be
cumulative and not exclusive of any rights or remedies provided by law.
[Remainder of page intentionally left blank]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the day and year first above written.
COMPANY:
EVERGREEN SOLAR, INC.
By: /s/ Xxxx X. Xxxxxx
----------------------------------
Name: Xxxx X. Xxxxxx
Title: President and Chief
Executive Officer
STOCKHOLDERS:
/s/ Xxxxxxx X. Xxxxxxxxx
--------------------------------------
Xxxxxxx X. Xxxxxxxxx
/s/ Xxxx X. Xxxxxx
-------------------------------------
Xxxx X. Xxxxxx
/s/ Xxxxxx X. Xxxx, Xx.
-------------------------------------
Xxxxxx X. Xxxx, Xx.
/s/ Xxxx Xxxxxx
-------------------------------------
Xxxx Xxxxxx
HANOKA EVERGREEN LIMITED PARTNERSHIP
By: /s/ Xxxx Xxxxxx
--------------------------------
Name: Xxxx Xxxxxx
Title: V.P. - C.T.O.
XXXXXXXX 1995 TRUST
By: /s/ Xxxxxxxx 1995 Trust,
--------------------------------
Xxxxx Xxxxxxxx, Trustee
Name: Xxxxx Xxxxxxxx
Title: Trustee
NTH POWER TECHNOLOGIES FUND LP
By: Nth Power LLC, its General Partner
By: /s/ Xxx Xxxxxxxx
--------------------------------
Name: Xxx Xxxxxxxx
Title: Managing Director
NTH POWER TECHNOLOGIES FUND I, LP
By: Nth Power LLC, its General Partner
By: /s/ Xxx Xxxxxxxx
--------------------------------
Name: Xxx Xxxxxxxx
Title: Managing Director
MICRO-GENERATION TECHNOLOGY FUND, LLC
By: Arete Corporation, Manager
By: /s/ Xxxxxx X. Xxxx, Xx.
--------------------------------
Name: Xxxxxx X. Xxxx, Xx.
Title: President
UVCC FUND II
By: Arete Venture Investors II, L.P.
By: /s/ Xxxxxx X. Xxxx, Xx.
--------------------------------
Name: Xxxxxx X. Xxxx, Xx.
Title: General Partner
UVCC II PARALLEL FUND, L.P.
By: Arete Ventures L.P. III
By: /s/ Xxxxxx X. Xxxx, Xx.
--------------------------------
Name: Xxxxxx X. Xxxx, Xx.
Title: General Partner
Utech Climate Challenge Fund, L.P.
By: Arete Climate Chellenge Partners, LLC
By: /s/ Xxxxxx X. Xxxx, Xx.
--------------------------------
Name: Xxxxxx X. Xxxx, Xx.
Title: Managing Member
UTECH VENTURE CAPITAL CORPORATION
By: /s/ Xxxxxx X. Xxxx, Xx.
--------------------------------
Name: Xxxxxx X. Xxxx, Xx.
Title: President
SCHEDULE 2.03
NUMBER OF
NUMBER OF SHARES OF NUMBER OF NUMBER OF
SHARES OF COMMON STOCK SHARES OF SHARES OF
COMMON NUMBER OF ISSUABLE ON NUMBER OF COMMON STOCK OTHER VOTING
STOCK WARRANTS EXERCISE OF WARRANTS EXERCISE OF CAPITAL STOCK TOTAL
NAME AND ADDRESS OF STOCKHOLDER OWNED OWNED WARANTS OWNED OPTIONS OWNED SHARES
----------------------------------------------------------------------------------------------------------------------------
Xxxxxxx X. Xxxxxxxxx 186,629 0 0 132,011 132,011 0 318,640
00 Xxxxxxx Xxxxxx
Xxxxxx, XX 00000
Xxxx X. Xxxxxx 184,807 0 0 177,657 177,657 0 362,464
000 Xxxxxxxxx Xx.
Xxxxxx, XX 00000
Hanoka Evergreen
Limited Partnership 138,568 0 0 0 0 0 138,568
000 Xxxx Xxxxxxx
Xxxxxxxxx, XX 00000
Xxxxxx X. Xxxx, Xx. 108,469 0 0 23,000 23,000 0 131,469
x/x Xxxxx Xxxxxxxxxxx
Xxx 0000
Xxxxxx Xxxxxx, XX 00000
Xxxx Xxxxxx 67,099 0 0 123,541 123,541 0 190,640
000 Xxxx Xxxxxxx
Xxxxxxxxx, XX 00000
NUMBER OF
NUMBER OF SHARES OF NUMBER OF NUMBER OF
SHARES OF COMMON STOCK SHARES OF SHARES OF
COMMON NUMBER OF ISSUABLE ON NUMBER OF COMMON STOCK OTHER VOTING
STOCK WARRANTS EXERCISE OF WARRANTS EXERCISE OF CAPITAL STOCK TOTAL
NAME AND ADDRESS OF STOCKHOLDER OWNED OWNED WARANTS OWNED OPTIONS OWNED SHARES
----------------------------------------------------------------------------------------------------------------------------
Xxxxxxxx 1995 Trust 18,503 0 0 0 0 0 18,503
c/o Xxxxx Xxxxxxxx Trustee
00 Xxxxxx Xxxxx
Xxxxxxxx, XX 00000
Nth Power Technologies Fund I L.P. 1,016,914 0 0 0 0 0 1,016,914
00 Xxxxxxxxxx Xxxxxx, Xxx 000
Xxx Xxxxxxxxx, XX 00000
Utech Climate Challenge Fund L.P. 110,854 0 0 0 0 0 110,854
x/x Xxxxx Xxxxxxxxxxx
Xxx 0000
Xxxxxx Xxxxxx, XX 00000
Utech Venture Capital Corporation 483,555 0 0 0 0 0 483,555
c/o Arete Corporation
X.X. Xxx 0000
Xxxxxx Xxxxxx, XX 00000
Micro-Generation Technology
Fund, LLC 24,336 0 0 0 0 0 24,336
c/o Arete Corporation
X.X. Xxx 0000
Xxxxxx Xxxxxx, XX 00000
UVCC Fund II 110,854 0 0 0 0 0 110,854
x/x Xxxxx Xxxxxxxxxxx
Xxx 0000
Xxxxxx Xxxxxx, XX 00000
UVCC II Parallel Fund L.P.
c/o Arete Corporation 110,854 0 0 0 0 0 110,854
Xxx 0000
Xxxxxx Xxxxxx, XX 00000
