Contract
FORM
OF REGISTRATION RIGHTS AGREEMENT
THIS
REGISTRATION RIGHTS AGREEMENT (this “Agreement”)
is
made as of ________, 2007, among Clear Skies Holdings, Inc., a _________
corporation (the “Company”),
and
each signatory hereto (each, an “Investor”
and
collectively, the “Investors”).
RECITALS
WHEREAS,
the Company and the Investors are parties to Subscription Agreements (the
“Subscription
Agreements”)
entered into in connection with a private placement offering described in
the
Confidential Private Placement Memorandum, dated November 12, 2007, as such
may
be amended and supplemented from time to time (the “PPM”);
WHEREAS,
the Investors’ obligations under the Subscription Agreements are conditioned
upon certain registration rights under the Securities Act of 1933, as amended
(the “Securities
Act”);
and
WHEREAS,
the Investors and the Company desire to provide for the rights of registration
under the Securities Act as are provided herein upon the execution and delivery
of this Agreement by such Investors and the Company.
NOW,
THEREFORE, in consideration of the promises, covenants and conditions set
forth
herein, the parties hereto hereby agree as follows:
1. Registration
Rights.
1.1 Definitions.
As used
in this Agreement, the following terms shall have the meanings set forth
below:
(a) “Commission”
means
the United States Securities and Exchange Commission.
(b) “Common
Stock”
means
the Company’s common stock, par value $0.001 per share.
(c) “Effectiveness
Date”
means
the date that is 180 days after the Trigger Date; provided, however, that
in the
event the Company is notified by the Commission that a registration statement
for Shares will not be reviewed or is no longer subject to further review,
the
Effectiveness Date as to such registration statement shall be the tenth day
following the date on which the Company is so notified if such date precedes
the
Effectiveness Date otherwise required.
(d) “Exchange
Act”
means
the Securities Exchange Act of 1934, as amended.
(e) “Fair
Market Value”
means
the average of the high and low prices of publicly traded shares of Common
Stock, rounded to the nearest cent, on the principal national securities
exchange on which shares of Common Stock are listed (if the shares of Common
Stock are so listed), or on The NASDAQ Capital Market (if the shares of Common
Stock are regularly quoted on the Nasdaq Stock Market), or, if not so listed
or
regularly quoted, the mean between the closing bid and asked prices of publicly
traded shares of Common Stock in the over-the-counter market, or, if such
bid
and asked prices shall not be available, as reported by any nationally
recognized quotation service selected by the Company, or as determined by
the
Board of Directors of the Company in a manner consistent with the provisions
of
the Internal Revenue Code, as amended.
(f) “Filing
Date”
means
the date that is 90 days after the Trigger Date.
(g) “Investor”
means
any person owning Registrable Securities who becomes party to this Agreement
by
executing a counterpart signature page hereto, or other agreement in writing
to
be bound by the terms hereof, which is accepted by the Company.
(h) “Placement
Warrants”
means
the warrants to purchase Common Stock issued to the Placement Agent or its
designees in connection with the offering described in the PPM.
(i) The
terms
“register,”
“registered”
and
“registration”
refer
to a registration 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
any of the Shares or any securities issued or issuable as (or any securities
issued or issuable upon the conversion or exercise of any warrant, right
or
other security that is issued as) a dividend or other distribution with respect
to, or in exchange for, or in replacement of, the Shares; provided,
however,
that
Registrable Securities shall not include any securities of the Company that
have
previously been registered and remain subject to a currently effective
registration statement or which have been sold to the public either pursuant
to
a registration statement or Rule 144, or which have been sold in a private
transaction in which the transferor’s rights under this Section 1 are not
assigned, or which may be sold immediately without registration under the
Securities Act and without volume restrictions pursuant to Rule
144.
(k) “Rule
144”
means
Rule 144 as promulgated by the Commission under the Securities Act, as such
Rule
may be amended from time to time, or any similar successor rule that may
be
promulgated by the Commission.
(l) “Rule
415”
means
Rule 415 as promulgated by the Commission under the Securities Act, as such
Rule
may be amended from time to time, or any similar successor rule that may
be
promulgated by the Commission.
(m) “Shares”
means
the shares of Common Stock (i) issued pursuant to the Subscription Agreements
and (ii) constituting Bridge Common (as defined in the PPM), and (iii) issuable
upon exercise of the Placement Warrants.
(n) “Trigger
Date”
means
the later of the final Closing Date and the Termination Date (as such terms
are
defined in the PPM).
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1.2 Company
Registration.
(a) On
or
prior to the Filing Date the Company shall prepare and file with the Commission
a registration statement covering the Registrable Securities for an offering
to
be made on a continuous basis pursuant to Rule 415. The registration statement
shall be on Form SB-2 or Form S-3 (except if the Company is not then eligible
to
register for resale the Registrable Securities on Form SB-2 or Form S-3,
in
which case such registration shall be on another appropriate form in accordance
herewith) and shall contain (unless otherwise directed by Investors holding
an
aggregate of at least 75% of the Registrable Securities on a fully diluted
basis) substantially the “Plan
of Distribution”
attached hereto as Annex
A.
The
Company shall cause the registration statement to become effective and remain
effective as provided herein. The Company shall use its best efforts to cause
the registration statement to be declared effective under the Securities
Act by
the Effectiveness Date. The Company shall use its best efforts to keep the
registration statement continuously effective under the Securities Act until
the
date which is the earliest to occur of: (i) the date that is 18 months after
the
final Closing Date or (ii) the date of which all Registrable Securities have
been sold or have otherwise ceased to be “Registrable Securities” (the
“Effectiveness
Period”).
(b) If
during
the Effectiveness Period, the number of Registrable Securities at any time
exceeds 100% of the number of shares of Common Stock then registered in a
registration statement, then the Company shall file as soon as reasonably
practicable an additional registration statement covering the resale of not
less
than the number of such Registrable Securities.
(c) If: (i)
the registration statement is not filed on or prior to the Filing Date, or
(ii)
is not declared effective by the Commission on or prior to the Effectiveness
Date (any such failure or breach being referred to as an “Event”),
then,
until the applicable Event is cured or, if sooner, the one year anniversary
of
the Trigger Date, the Company shall pay to each Investor, in cash or in Common
Stock at Fair Market Value, at the Company’s option, as liquidated damages and
not as a penalty, an amount equal to 1.0% of the aggregate purchase price
paid
by such Investor pursuant to the Subscription Agreement executed by such
Investor for each one month period (prorated for partial periods), during
which
such Event continues uncured. While such Event continues, such liquidated
damages shall be paid not less often than every month. Any unpaid liquidated
damages as of the date when an Event has been cured by the Company shall
be paid
within three (3) business days following the date on which such Event has
been
cured by the Company. Notwithstanding anything herein to the contrary, to
the
extent that the registration of any or all of the Registrable Securities
by the
Company on a registration statement is prohibited (the “Non-Registered
Shares”)
as a
result of rules, regulations, positions or releases issued or actions taken
by
the Commission pursuant to its authority with respect to Rule 415 and the
Company has registered at such time the maximum number of Registrable Securities
permissible upon consultation with the Commission (applied on a pro rata
basis
based on the total number of unregistered Registrable Securities held by
each
holder of Registrable Securities), then the liquidated damages described
in this
Section 1.2(b) shall not be applicable to such Non-Registered
Shares.
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(d) The
Company shall bear and pay all expenses incurred in connection with any
registration, filing or qualification of Registrable Securities with respect
to
the registrations pursuant to this Section 1.2 for each Investor, including
(without limitation) all registration, filing and qualification fees, printer’s
fees, accounting fees and fees and disbursements of counsel for the Company,
but
excluding any brokerage or underwriting fees, discounts and commissions relating
to Registrable Securities and fees and disbursements of counsel for the
Investors.
(e) If
at any
time during the Effectiveness Period there is not an effective Registration
Statement covering all of the Registrable Securities, then the Company shall
notify each Investor in writing at least fifteen (15) days prior to the filing
of any registration statement under the Securities Act, in connection with
a
public offering of shares of Common Stock (including, but not limited to,
registration statements relating to secondary offerings of securities of
the
Company but excluding any registration statements (i) on Form S-4 or S-8
(or any
successor or substantially similar form), or of any employee stock option,
stock
purchase or compensation plan or of securities issued or issuable pursuant
to
any such plan, or a dividend reinvestment plan, (ii) otherwise relating to
any
employee, benefit plan or corporate reorganization or other transactions
covered
by Rule 145 promulgated under the Securities Act, or (iii) on any registration
form which does not permit secondary sales or does not include substantially
the
same information as would be required to be included in a registration statement
covering the resale of the Registrable Securities) and will afford each Investor
an opportunity to include in such registration statement all or part of the
Registrable Securities held by such Investor. In the event an Investor desires
to include in any such registration statement all or any part of the Registrable
Securities held by such Investor, the Investor shall within ten (10) days
after
the above-described notice from the Company, so notify the Company in writing,
including the number of such Registrable Securities such Investor wishes
to
include in such registration statement. If an Investor decides not to include
all of its Registrable Securities in any registration statement thereafter
filed
by the Company such Investor shall nevertheless continue to have the right
to
include any Registrable Securities in any subsequent registration statement
or
registration statements as may be filed by the Company with respect to the
offering of the securities, all upon the terms and conditions set forth
herein.
1.3 Obligations
of the Company.
Whenever required under this Section 1 to effect the registration of any
Registrable Securities, the Company shall, as expeditiously as reasonably
possible:
(a) Prepare
and file with the Commission a registration statement with respect to such
Registrable Securities and use its reasonable best efforts to cause such
registration statement to become effective and to keep such registration
statement effective during the Effectiveness Period;
(b) Prepare
and file with the Commission 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
to the Investors such numbers of copies of a prospectus, including a preliminary
prospectus, in conformity with the requirements of the Securities Act, and
such
other documents as they may reasonably request in order to facilitate the
disposition of Registrable Securities owned by them (provided that the Company
would not be required to print such prospectuses if readily available to
Investors from any electronic service, such as on the XXXXX filing database
maintained at xxx.xxx.xxx);
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(d) Use
its
reasonable 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 requested by the Investors; provided
that
the Company shall not be required in connection therewith or as a condition
thereto to qualify to do business or to file a general consent to service
of
process in any such states or jurisdictions;
(e) 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(s) of such offering (each Investor participating
in
such underwriting shall also enter into and perform its obligations under
such
an agreement);
(f) Promptly
notify each Investor holding Registrable Securities covered by such registration
statement at any time when a prospectus relating thereto is required to be
delivered under the Securities Act, within one business day, (i) of the
effectiveness of such registration statement, or (ii) 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;
(g) Cause
all
such Registrable Securities registered pursuant hereto to be listed on each
securities exchange or nationally recognized quotation system on which similar
securities issued by the Company are then listed; and
(h) Provide
a
transfer agent and registrar for all Registrable Securities registered pursuant
hereunder and a CUSIP number for all such Registrable Securities, in each
case
not later than the effective date of such registration.
1.4 Furnish
Information.
It
shall be a condition precedent to the Company’s obligations to take any action
pursuant to this Section 1 with respect to the Registrable Securities of
any
selling Investor that such Investor shall furnish to the Company such
information regarding such Investor, the Registrable Securities held by such
Investor, and the intended method of disposition of such securities in the
form
attached to this Agreement as Annex B, or as otherwise reasonably required
by
the Company or the managing underwriters, if any, to effect the registration
of
such Investor’s Registrable Securities.
1.5 Delay
of Registration.
No
Investor shall have any right to obtain or seek an injunction restraining
or
otherwise delaying any such registration as the result of any controversy
that
might arise with respect to the interpretation or implementation of this
Section
1.
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1.6 Indemnification.
(a) To
the
extent permitted by law, the Company will indemnify and hold harmless each
Investor, any underwriter (as defined in the Securities Act) for such Investor
and each person, if any, who controls such Investor 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 securities law, insofar as such losses, claims, damages or liabilities
(or actions in respect thereof) arise out of or are based upon any of the
following statements, omissions or violations (collectively, a “Violation”):
(i)
any untrue statement or alleged untrue statement of a material fact contained
in
a registration statement, including any preliminary prospectus or final
prospectus contained therein or any amendments or supplements thereto
(collectively, the “Filings”),
(ii)
the omission or alleged omission to state in the Filings 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 state securities law or any rule or
regulation promulgated under the Securities Act, the Exchange Act or any
state
securities law; and the Company will pay any legal or other expenses reasonably
incurred by any person to be indemnified pursuant to this Section 1.6(a)
in
connection with investigating or defending any such loss, claim, damage,
liability or action; provided,
however,
that
the indemnity agreement contained in this Section 1.6(a) shall not apply
to
amounts paid in settlement of any such loss, claim, damage, liability or
action
if such settlement is effected without the consent of the Company (which
consent
shall not be unreasonably withheld), nor shall the Company be liable in any
such
case for any such loss, claim, damage, liability or action to the extent
that it
arises out of or is based upon a Violation that occurs in reliance upon and
in
conformity with written information furnished expressly for use in connection
with such registration by any such Investor, underwriter or controlling
person.
(b) To
the
extent permitted by law, each Investor 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 or the Exchange Act, any underwriter, any other
Investor selling securities in such registration statement and any controlling
person of any such underwriter or other Investor, 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 securities 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 such
Investor expressly for use in connection with such registration; and each
such
Investor will pay any legal or other expenses reasonably incurred by any
person
to be indemnified pursuant to this Section 1.6(b) in connection with
investigating or defending any such loss, claim, damage, liability or action;
provided,
however,
that
the indemnity agreement contained in this Section 1.6(b) shall not apply
to
amounts paid in settlement of any such loss, claim, damage, liability or
action
if such settlement is effected without the consent of the Investor (which
consent shall not be unreasonably withheld); provided,
however,
in no
event shall any indemnity under this subsection 1.6(b) exceed the net proceeds
received by such Investor upon the sale of the Registrable Securities giving
rise to such indemnification obligation.
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(c) Promptly
after receipt by an indemnified party under this Section 1.6 of notice of
the
commencement of any action (including any governmental action), such indemnified
party will, if a claim in respect thereof is to be made against any indemnifying
party under this Section 1.6, 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 satisfactory to the parties; provided,
however,
that an
indemnified party (together with all other indemnified parties that may be
represented without conflict by one counsel) shall have the right to retain
one
separate counsel, 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 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, if materially prejudicial to its ability to defend such
action,
shall relieve such indemnifying party of any liability to the indemnified
party
under this Section 1.6, but the omission so 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 1.6.
(d) If
the
indemnification provided for in Sections 1.6(a) and (b) is held by a court
of
competent jurisdiction to be unavailable to an indemnified party with respect
to
any loss, claim, damage or expense referred to herein, then the indemnifying
party, in lieu of indemnifying such indemnified party hereunder, shall
contribute to the amount paid or payable by such indemnified party as a result
of such loss, claim, damage or expense in such proportion as is appropriate
to
reflect the relative fault of the indemnifying party on the one hand and
of the
indemnified party on the other in connection with the statements or omissions
or
alleged statements or omissions that resulted in such loss, liability, claim
or
expense as well as any other relevant equitable considerations. The relative
fault of the indemnifying party and of the indemnified party shall be determined
by reference to, among other things, whether the untrue or alleged untrue
statement of a material fact relates to information supplied by the indemnifying
party or by the indemnified party and the parties’ relative intent, knowledge,
access to information and opportunity to correct or prevent such statement
or
omission. In no event shall any Investor be required to contribute an amount
in
excess of the net proceeds received by such Investor upon the sale of the
Registrable Securities giving rise to such indemnification
obligation.
(e) The
obligations of the Company and Investors under this Section 1.6 shall survive
the completion of any offering of Registrable Securities in a registration
statement under this Section 1, and otherwise.
1.7 Reports
Under Securities Exchange Act.
With a
view to making available the benefits of certain rules and regulations of
the
Commission, including Rule 144, that may at any time permit an Investor to
sell
securities of the Company to the public without registration or pursuant
to a
registration on Form SB-2, the Company agrees to:
(a) make
and
keep public information available, as those terms are understood and defined
in
Rule 144, at all times after ninety (90) days after the Trigger
Date;
(b) take
such
action, including the voluntary registration of its Common Stock under Section
12 of the Exchange Act, as is necessary to enable the Investors to utilize
Form
SB-2 for the sale of their Registrable Securities, such action to be taken
as
soon as practicable after the end of the fiscal year in which the registration
statement is declared effective;
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(c) file
with
the Commission 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 Investor, so long as the Investor 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 (at any time after ninety
(90) calendar days after the Trigger Date), the Securities Act and the 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 SB-2 (at any time after 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 Investor of any rule or regulation of the Commission
that permits the selling of any such securities without registration or pursuant
to such form.
1.8 Transfer
or Assignment of Registration Rights.
The
rights to cause the Company to register Registrable Securities pursuant to
this
Section 1 may be transferred or assigned, but only with all related obligations,
by an Investor to a transferee or assignee who (a) acquires at least 50,000
Shares (subject to appropriate adjustment for stock splits, stock dividends
and
combinations) from such transferring Investor, unless waived in writing by
the
Company, or (b) holds Registrable Securities immediately prior to such transfer
or assignment; provided,
that in
the case of (a), (i) prior to such transfer or assignment, the Company is
furnished with written notice stating the name and address of such transferee
or
assignee and identifying the securities with respect to which such registration
rights are being transferred or assigned, (ii) such transferee or assignee
agrees in writing to be bound by and subject to the terms and conditions
of this
Agreement including, without limitation, the provisions of Section 1.9 hereof
and (iii) such transfer or assignment shall be effective only if immediately
following such transfer or assignment the further disposition of such securities
by the transferee or assignee is restricted under the Securities
Act.
2. Covenants
of the Company to the Investors.
2.1 Information
Rights.
The
Company shall deliver to each Investor who holds (and continues to hold)
at
least 100,000 Shares (subject to appropriate adjustment for stock splits,
stock
dividends and combinations), upon the request of such Investor (which may
be
satisfied by filing of Company quarterly and annual reports under the Exchange
Act):
(a) as
soon
as practicable, but in any event within one hundred twenty (120) calendar
days
after the end of each fiscal year of the Company, consolidated balance sheets
of
the Company and its subsidiaries, if any, as of the end of such fiscal year,
and
consolidated statements of income and consolidated statements of cash flows
of
the Company and its subsidiaries, if any, for such year, prepared in accordance
with generally accepted accounting principles (“GAAP”),
all
in reasonable detail; and
(b) as
soon
as practicable, but in any event within forty-five (45) calendar days after
the
end of each of the first three (3) quarters of each fiscal year of the Company,
consolidated balance sheets of the Company and its subsidiaries, if any,
as of
the end of such quarter, and consolidated statements of income and consolidated
statements of cash flows of the Company and its subsidiaries, if any, for
such
quarter prepared in accordance with GAAP, all in reasonable detail.
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2.2 Confidentiality.
Each
Investor receiving any non-public information of the Company hereby agrees
to
hold in confidence and trust and to act in a fiduciary manner with respect
to
all information so provided; provided,
however,
that
notwithstanding the foregoing, an Investor may include summary financial
information concerning the Company and general statements concerning the
nature
and progress of the Company’s business in an Investor’s reports to its
affiliates. Subsequent to the Closing, the Company shall not provide Investor
with any material non-public information regarding the Company, unless Investor
has entered into a confidentiality agreement governing the use and disclosure
of
such information.
3. Legend.
(a) Each
certificate representing Shares of Common Stock held by the Investors and
the
Placement Agent shall be endorsed with the following legend:
“THE
SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER
THE
SECURITIES ACT OF 1933, AS AMENDED (THE “ACT”), AND MAY NOT BE SOLD, OFFERED FOR
SALE, PLEDGED OR HYPOTHECATED OR OTHERWISE TRANSFERRED IN THE ABSENCE OF
A
REGISTRATION STATEMENT IN EFFECT WITH RESPECT TO SUCH SECURITIES UNDER THE
ACT
OR AN OPINION OF COUNSEL SATISFACTORY TO THE ISSUER OF THIS CERTIFICATE THAT
AN
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE ACT IS AVAILABLE WITH
RESPECT TO SUCH TRANSFER. ANY SUCH TRANSFER MAY ALSO BE SUBJECT TO COMPLIANCE
WITH APPLICABLE STATE SECURITIES LAWS.”
(b) The
legend set forth above shall be removed, and the Company shall issue a
certificate without such legend to the transferee of the Shares represented
thereby, if, unless otherwise required by state securities laws, (i) such
Shares
have been sold under an effective registration statement under the Securities
Act, (ii) such holder provides the Company with an opinion of counsel,
reasonably acceptable to the Company (which may be the Company’s regular outside
counsel), to the effect that sale, assignment or transfer of such Shares
may be
made pursuant to an applicable exemption from the registration requirements
of
the Securities Act or (iii) if an applicable exemption from the registration
requirements of the Securities Act permits the public resale of such Shares
and
no opinion is required to remove such legend. The Company agrees that following
the effectiveness of the Registration Statement or at such time as such legend
is no longer required pursuant to applicable law, it will, no later than
three
business days following the delivery to the Company’s transfer agent of both (x)
the certificate issued with restrictive legend representing Shares for which
legend removal is required by this Section 3(b), and (y) all reasonably required
documentation, which may include, without limitation, stock powers,
certificates, shareholder representation letters, broker representation letters
and opinions of counsel, as applicable, (such third Business Day, the
“Legend
Removal Date”),
deliver or cause to be delivered to such holder a certificate representing
such
Shares that is free from all restrictive and other legends, in each case
without
charge to the holder other than customary transfer fees which may be charged
by
the transfer agent or broker-dealer. If the Company fails to timely deliver
any
unlegended share certificate by the applicable Legend Removal Date, then
the
Company shall immediately upon demand reimburse the holder of the relevant
Shares for the cost and losses occasioned by any “buy-in” resulting
therefrom.
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4. Miscellaneous.
4.1 Governing
Law.
The
parties hereby agree that any dispute which may arise between them arising
out
of or in connection with this Agreement shall be adjudicated only before
a
Federal court located in the State of New York and they hereby submit to
the
exclusive jurisdiction of the federal and state courts of the State of New
York
with respect to any action or legal proceeding commenced by any party, and
irrevocably waive any objection they now or hereafter may have respecting
the
venue of any such action or proceeding brought in such a court or respecting
the
fact that such court is an inconvenient forum, relating to or arising out
of
this Agreement or any acts or omissions relating to the registration of the
securities hereunder, and consent to the service of process in any such action
or legal proceeding by means of registered or certified mail, return receipt
requested, in care of the address set forth below or such other address as
the
undersigned shall furnish in writing to the other. The parties further agree
that in the event of any dispute, action, suit or other proceeding arising
out
of or in connection with this Agreement brought by the Company or any of
its
Affiliates, the Investor (or transferee) shall recover all of such party’s
attorneys’ fees and costs incurred in each and every action, suit or other
proceeding, including any and all appeals or petitions therefrom. As used
herein, attorney’s fees shall be deemed to mean the full and actual costs of any
investigation and of legal services actually performed in connection with
the
matters involved, calculated on the basis of the usual fee charged by the
attorneys performing such services.
4.2 Waivers
and Amendments.
This
Agreement may be terminated and any term of this Agreement may be amended
or
waived (either generally or in a particular instance and either retroactively
or
prospectively) with the written consent of the Company and Investors holding
at
least a majority of the Registrable Securities then outstanding (the
“Majority
Investors”).
Notwithstanding the foregoing, additional parties may be added as Investors
under this Agreement, and the definition of Registrable Securities expanded,
with the written consent of the Company and the Majority Investors. No such
amendment or waiver shall reduce the aforesaid percentage of the Registrable
Securities, the holders of which are required to consent to any termination,
amendment or waiver without the consent of the record holders of all of the
Registrable Securities. Any termination, amendment or waiver effected in
accordance with this Section 4.2 shall be binding upon each holder of
Registrable Securities then outstanding, each future holder of all such
Registrable Securities and the Company.
4.3 Successors
and Assigns.
Except
as otherwise expressly provided herein, the provisions of this Agreement
shall
inure to the benefit of, and be binding upon, the successors, assigns, heirs,
executors and administrators of the parties hereto.
4.4 Entire
Agreement.
This
Agreement constitutes the full and entire understanding and agreement among
the
parties with regard to the subject matter hereof, and no party shall be liable
or bound to any other party in any manner by any warranties, representations
or
covenants except as specifically set forth herein.
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4.5 Notices.
All
notices and other communications required or permitted under this Agreement
shall be in writing and shall be delivered personally by hand or by overnight
courier, mailed by United States first-class mail, postage prepaid, sent
by
facsimile or sent by electronic mail directed (a) if to an Investor, at such
Investor’s address, facsimile number or electronic mail address set forth in the
Company’s records, or at such other address, facsimile number or electronic mail
address as such Investor may designate by ten (10) days’ advance written notice
to the other parties hereto or (b) if to the Company, to its address, facsimile
number or electronic mail address set forth on its signature page to this
Agreement and directed to the attention of the Chief Executive Officer, or
at
such other address, facsimile number or electronic mail address as the Company
may designate by ten (10) days’ advance written notice to the other parties
hereto. All such notices and other communications shall be effective or deemed
given upon delivery, on the date that is three days following the date of
mailing, upon confirmation of facsimile transfer or upon confirmation of
electronic mail delivery.
4.6 Interpretation.
The
words “include,” “includes” and “including” when used herein shall be deemed in
each case to be followed by the words “without limitation.” The titles and
subtitles used in this Agreement are used for convenience only and are not
considered in construing or interpreting this Agreement.
4.7 Severability.
If one
or more provisions of this Agreement are held to be unenforceable under
applicable law, such provision shall be excluded from this Agreement, and
the
balance of the Agreement shall be interpreted as if such provision were so
excluded, and shall be enforceable in accordance with its terms.
4.8 Independent
Nature of Investors’ Obligations and Rights.
The
obligations of each Investor hereunder are several and not joint with the
obligations of any other Investor hereunder, and no Investor shall be
responsible in any way for the performance of the obligations of any other
Investor hereunder. Nothing contained herein or in any other agreement or
document delivered at any closing, and no action taken by any Investor pursuant
hereto or thereto, shall be deemed to constitute the Investors as a partnership,
an association, a joint venture or any other kind of entity, or create a
presumption that the Investors are in any way acting in concert with respect
to
such obligations or the transactions contemplated by this Agreement. Each
Investor shall be entitled to protect and enforce its rights, including without
limitation the rights arising out of this Agreement, and it shall not be
necessary for any other Investor to be joined as an additional party in any
proceeding for such purpose.
4.9 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.
4.10 Telecopy
Execution and Delivery.
A
facsimile, telecopy or other reproduction of this Agreement may be executed
by
one or more parties hereto, and an executed copy of this Agreement may be
delivered by one or more parties hereto by facsimile or similar electronic
transmission device pursuant to which the signature of or on behalf of such
party can be seen, and such execution and delivery shall be considered valid,
binding and effective for all purposes. At the request of any party hereto,
all
parties hereto agree to execute an original of this Agreement as well as
any
facsimile, telecopy or other reproduction hereof.
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[SIGNATURE
PAGE FOLLOWS]
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IN
WITNESS WHEREOF, the Company has caused this Agreement to be executed by
its
duly authorized officer, as of the date, month and year first set forth
above.
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“Company”
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CLEAR
SKIES HOLDINGS, INC.
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By:
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_________________________________________
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Name:
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Title:
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Address
for notice:
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0000
Xxxxxxx Xxxxxxx
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Xxxxx
000
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Xxxxxxxxxx
Xxxx, Xxx Xxxx 00000
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Fax:
(000) 000-0000
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[COMPANY
SIGNATURE PAGE TO REGISTATION RIGHTS AGREEMENT]
IN
WITNESS WHEREOF, the undersigned Investor has executed this Agreement as
of the
date, month and year that such Investor became the owner of Registrable
Securities.
|
“Investor”
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| __________________________________________ | |
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By:
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_______________________________________ |
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Name
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Title:
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Address:
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| __________________________________________ | |
| __________________________________________ | |
| __________________________________________ | |
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Telephone:
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___________________________________ |
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Facsimile:
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___________________________________ |
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Email:
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_______________________________________
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[INVESTOR
COUNTERPART SIGNATURE PAGE TO
