COMVERGE, INC. AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT October 16, 2007
AMENDED
AND RESTATED
October
16, 2007
TABLE
OF CONTENTS
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Page
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| ARTICLE I. DEFINITIONS |
2
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| ARTICLE II. [INTENTIONALLY OMITTED.] |
3
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| ARTICLE III. REGISTRATION |
3
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Section
3.1
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Required
Registration
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3
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Section
3.2
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Company
Registration.
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4
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Section
3.3
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Registration
on Form S-3.
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4
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Section
3.4
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Registration
Procedures.
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4
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Section
3.5
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Expenses.
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6
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Section
3.6
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Indemnification
and Contribution
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7
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Section
3.7
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Changes
in Common Stock.
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10
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Section
3.8
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Rule
144 Reporting.
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10
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Section
3.9
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Future
Registration Rights.
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11
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Section
3.10
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Market
Stand Off.
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11
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Section
3.11
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Termination
of Registration Rights.
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13
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| ARTICLE IV. [INTENTIONALLY OMITTED.] |
13
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| ARTICLE V. [INTENTIONALLY OMITTED.] |
14
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| ARTICLE VI. MISCELLANEOUS |
14
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Section
6.1
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Assigns.
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14
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Section
6.2
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Notices.
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14
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Section
6.3
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Governing
Law.
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14
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Section
6.4
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Amendments.
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15
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Section
6.5
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Counterparts;
Facsimile Signatures.
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15
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Section
6.6
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Severability.
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15
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Section
6.7
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Joint
Product.
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15
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Section
6.8
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Termination
of Prior Agreement.
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16
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Consent
to Grant of Registration Rights.
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16
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Section
6.10
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Removal
of Key Management.
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16
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Schedule
A Investors
Schedule
B Principal
Stockholders
Schedule
C Key
Management
Schedule
D Acquisition
Stockholders
AMENDED
AND RESTATED REGISTRATION RIGHTS AGREEMENT
THIS
AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
(this
“Agreement”)
is
made as of the 16th day of October, 2007, by and among Comverge, Inc., a
Delaware corporation (the “Company”),
and
the stockholders of the Company listed on Schedule
A
(the
“Investors”),
the
stockholders of the Company listed on Schedule
B
(the
“Principal
Stockholders”),
certain members of the Company’s management listed on Schedule
C,
as the
same may be amended from time to time (the “Key
Management”)
and
certain stockholders of the Company listed on Schedules
D-1 and D-2,
(the
“Acquisition
Stockholders”).
RECITALS
WHEREAS,
the
Company and certain of its stockholders are parties to that certain Registration
Rights Agreement dated as of July 23, 2007 (the “Prior
Agreement”),
and
each believes that it is in the best interest of the Company and its
stockholders to amend and restate the Prior Agreement as set forth
herein;
WHEREAS,
the
Company completed its initial public offering on April 18, 2007 (the
“IPO
Date”)
and in
connection therewith all of the then-outstanding Preferred Stock of the Company
was converted into Common Stock of the Company;
WHEREAS,
the
Company previously offered additional shares of Common Stock and promissory
notes convertible (the “Convertible
Promissory Notes”)
into
Common Stock as consideration pursuant to the terms of that certain Agreement
and Plan of Merger dated July 23, 2007 (the “Merger
Agreement”);
WHEREAS,
pursuant to Section 6.4 of the Prior Agreement, the Prior Agreement may be
amended by the written consent of the Company and the holders of at least 60%
of
the Conversion Shares held by the Investors; and
WHEREAS,
the
Company, undersigned Investors representing greater than 60% of the Conversion
Shares held by the Investors, the undersigned Principal Stockholders, the
undersigned members of Key Management and the undersigned Acquisition
Stockholders desire to amend and restate the Prior Agreement as set forth herein
on behalf of themselves and the parties to the Prior Agreement.
AGREEMENT
NOW,
THEREFORE,
in
consideration of the foregoing premises, the mutual promises and covenants
set
forth herein and certain other good and valuable consideration, the receipt
and
sufficiency of which are hereby acknowledged, the parties agree as
follows:
ARTICLE
I.
Definitions
As
used
in this Agreement, the following terms shall have the following respective
meanings:
“Affiliate”,
as
applied to any person or entity, shall mean a person or entity directly or
indirectly (through one or more intermediaries) controlling, controlled by
or
under common control with the first person or entity, including affiliated
venture capital funds.
1
“Commission”
shall
mean the Securities and Exchange Commission, or any other federal agency at
the
time charged with primary responsibility for administering the Securities Act
(or any successor legislation).
“Common
Stock”
shall
mean the Common Stock, $0.001 par value, of the Company, as constituted as
of
the date of this Agreement.
“Conversion
Shares”
shall
mean (i) the shares of Common Stock issued to the Investors set forth on
Schedule
A
and the
Acquisition Stockholders set forth on Schedule
D-1,
and
subject to the provisions below, any Note Shares and Escrowed Shares, (ii)
the
shares of Common Stock issuable upon the exercise of that certain Amended and
Restated Warrant to purchase Series C Preferred Stock of the Company dated
effective as of April 4, 2007, and issued to Air Products and Chemicals,
Inc.,
and
(iii) the shares of Common Stock issuable upon the exercise of that certain
Amended and Restated Warrant of the Company dated effective as of April 4, 2007,
and issued to Partners for Growth, L.P.; provided,
however,
that (x)
any Note Shares (as defined below) that are Conversion Shares shall not become
Conversion Shares until actually issued by the Company, (y) any Escrowed Shares
(as defined below) that are Conversion Shares shall not become Conversion Shares
until July 1, 2008, and (z) any shares subject to issuance upon the exercise
of
either of the warrants set forth in clauses (ii) and (iii) above shall not
become Conversion Shares until issued.
“Exchange
Act”
shall
mean the Securities Exchange Act of 1934, as amended, or any similar federal
statute, and the rules and regulations of the Commission thereunder, all as
the
same shall be in effect at the time.
“Registration
Expenses”
shall
mean the expenses so described in Section
3.5.
“Registrable
Securities”
shall
mean (i) the Conversion Shares held by the Investors set forth on Schedule
A
and the
Conversion Shares held by the Acquisition Stockholders set forth on Schedule
D-1;
(ii)
shares of Common Stock now held, as set forth on Schedule
B,
or
hereafter acquired by the Principal Stockholders; provided,
however,
that
such shares of Common Stock held by the Principal Stockholders shall not be
deemed Registrable Securities for the purposes of Sections
3.1, 3.3 and 3.9;
(iii)
shares of Common Stock now held, as set forth on Schedule
C,
or
hereafter acquired by Key Management; provided,
however,
that
such shares of Common Stock held by Key Management shall not be deemed
Registrable Securities for the purposes of Sections
3.1, 3.3 and 3.9
and;
provided
further
that
shares of Common Stock issuable to members of Key Management pursuant to the
exercise of options shall be considered Registrable Securities (within the
limitations set forth in this clause (iii)); (iv) shares of Common Stock issued
to the Acquisition Stockholders, as set forth on Schedule
D-2,
pursuant to any merger agreement (including the Merger Agreement), purchase
agreement and other acquisition agreement in connection with a bona fide
business acquisition by the Company or its subsidiaries, including (A) shares
of
Common Stock issuable upon conversion of any convertible promissory notes
(including the Convertible Promissory Notes) issued to the Acquisition
Stockholders pursuant to a merger agreement, purchase agreement and other
acquisition agreement in connection with a bona fide business acquisition by
the
Company or its subsidiaries (the “Note
Shares”)
and
(B) shares of Common Stock held in escrow pursuant to a merger agreement
(including the Merger Agreement), purchase agreement and other acquisition
agreement in connection with a bona fide business acquisition by the Company
or
its subsidiaries (the “Escrowed
Shares”);
provided,
however,
that the
Note Shares shall not become Registrable Securities until actually issued by
the
Company and the Escrowed Shares shall not become Registrable Securities until,
(x) with respect to those issued in connection with the Merger Agreement, July
1, 2008, and, (y) with respect to such other Escrowed Shares, the date upon
which such Escrowed Shares are released from escrow pursuant to the terms of
the
governing escrow agreement; and (v) any Common Stock issued as a dividend or
other distribution with respect to or in exchange for or in replacement of
the
shares referenced in (i) through (iv) above, in each case with the same
limitation thereon; provided further
that
Registrable Securities shall not include any shares of Common Stock (1) that
have been registered under the Securities Act pursuant to an effective
registration statement filed thereunder and disposed of in accordance with
the
registration statement covering them or (2) that have otherwise been sold
to the public.
2
“Securities
Act”
shall
mean the Securities Act of 1933, as amended, or any similar federal statute,
and
the rules and regulations of the Commission thereunder, all as the same shall
be
in effect at the time.
“Selling
Expenses”
shall
mean the expenses so described in Section
3.5.
“Time
of Sale Information”
means
the information conveyed to an investor at the time such investor becomes
committed to purchase securities for purposes of determining liability under
Sections 12(a)(2) and 17(a)(2) of the Securities Act.
ARTICLE
II.
[Intentionally
Omitted.]
ARTICLE
III.
Registration
Section
3.1 Required
Registration
(a) At
any
time after July 23, 2008, the holders of a majority of the Conversion Shares,
may request the Company to register some or all of their Registrable Securities
under the Securities Act if the anticipated aggregate price to the public is
not
less than $8,000,000. Any request for registration (“Registration
Request”)
shall
specify (A) the approximate number of shares of Registrable Securities requested
to be registered and (B) the intended method of distribution of such
shares.
3
(b) Within
ten days after the receipt of a Registration Request, the Company shall
immediately notify all holders of Registrable Securities (other than Registrable
Securities held by Key Management and Principal Stockholders) from whom notice
has not been received and shall, subject to the limitations of this Section
3.1,
effect,
as expeditiously as is reasonably possible the registration under the Securities
Act, for public sale in accordance with the method of disposition specified
in
such notice from requesting holders, the number of shares of Registrable
Securities specified in such notice (and in all notices received by the Company
from other holders within 15 days after the giving of such notice by the
Company). In the event that any registration pursuant to this Section
3.1
shall
be, in whole or in part, an underwritten public offering of Common Stock, and
the managing underwriters advise the Company in their opinion that the number
of
securities to be included in such registration exceeds the number that can
be
sold in an orderly manner in such offering within the price range acceptable
to
the Company, then the number of Registrable Securities included in such offering
may be reduced, prorate among the Registrable Securities requested to be
included in such offering.
(c) The
Company will have the right to select one or more underwriters to manage the
offering, subject to the reasonable satisfaction of a majority in interest
of
the holders of the Conversion Shares initially requesting registration, which
approval, if any be required, shall not be unreasonably withheld or delayed;
provided,
that if
the managing underwriter or underwriters shall be the firm or firms that managed
the Company’s most recently completed underwritten public offering of Common
Stock, such firms shall be deemed acceptable unless a majority in interest
of
the holders the Conversion Shares initially requesting such registration shall
object to such firm or firms for reasons related to the ability of such firm
or
firms to effectively manage the offering.
(d) The
Company shall be obligated to effect a registration pursuant to this
Section
3.1
on two
occasions only, and shall not be required to effect a registration if the
Company delivers notice in writing to the holders of Registrable Securities
within 30 days of any Registration Request of the Company’s intent to file a
registration statement within 90 days.
(e) The
Company shall be entitled to include in any registration statement referred
to
in this Section
3.1,
for
sale in accordance with the method of disposition specified by requesting
holders, shares of Common Stock to be sold by the Company for its own account
but only to the extent that such inclusion will not adversely affect the
offering for the account of the holders of Registrable Securities. Except for
registration statements on Form X-0, X-0 or any successors thereto, the Company
will not file with the Commission any other registration statement with respect
to its Common Stock, whether for its own account or that of other stockholders,
from the date of receipt of a notice from requesting holders pursuant to this
Section 3.1
until
the completion of the period of distribution of the registration contemplated
thereby.
Section
3.2 Company
Registration.
If the
Company at any time proposes to register any of its securities under the
Securities Act for sale to the public, whether for its own account or for the
account of other security holders or both (except with respect to registration
statements on Forms X-0, X-0 or another form not available for registering
the
Registrable Securities for sale to the public), each such time it will give
written notice to all holders of outstanding Registrable Securities of its
intention so to do. Upon the written request of any such holder, received by
the
Company within 15 days after the giving of any such notice by the Company,
to
register any of its Registrable Securities, the Company will use reasonable
best
efforts to cause such Registrable Securities to be included in the registration
statement proposed to be filed by the Company. In the event that any
registration pursuant to this Section 3.2
shall
be, in whole or in part, an underwritten public offering of Common Stock, and
the managing underwriters advise the Company in their opinion that the number
of
securities to be included in such registration exceeds the number that can
be
sold in an orderly manner in such offering within the price range acceptable
to
the Company, then the number of Registrable Securities included in such offering
may be reduced, pro rata among the Registrable Securities requested to be
included in such offering; provided,
however,
that in
the case of any underwritten public offering, the number of shares of Conversion
Shares included in such offering shall not be reduced below an amount equal
to
25% of the total number of shares to be included. Notwithstanding the foregoing
provisions, the Company may withdraw any registration statement referred to
in
this Section
3.2
without
thereby incurring any liability to the holders of Registrable
Securities.
Section
3.3 Registration
on Form S-3.
If at
any time (i) a holder or holders of Conversion Shares request that the Company
file a registration statement on Form S-3 or any successor thereto for a public
offering of all or any portion of their Conversion Shares, the reasonably
anticipated aggregate price to the public of which would exceed $2,000,000,
and
(ii) the Company is a registrant entitled to use Form S-3 or any successor
thereto to register such shares, then the Company shall, as soon as practicable,
use reasonable best efforts to effect and maintain such registration under
the
Securities Act on Form S-3 or any successor thereto, for public sale in
accordance with the method of disposition specified in such notice, the
Conversion Shares specified in such notice. The method of disposition may
include the registration of such shares “for the shelf” to be offered on a
delayed or continuous basis as provided in Rule 415 under the Securities Act.
Whenever the Company is required by this Section
3.3
to use
reasonable best efforts to effect the registration on behalf of a holder or
holders of Conversion Shares, the Company shall notify all other holders of
Registrable Securities and provide them with the opportunity to participate
in
the offering in accordance with Section
3.2
hereof
(with any exclusion by underwriters to be pro rata on the basis of the number
of
shares of Registrable Securities, as defined this Section
3.3
only,
requested to be included), and the provisions of paragraphs (c) and (e) of
Section
3.1
shall
apply to such registration. The Company shall not be required to effect more
than two such registrations pursuant to this Section
3.3
in any
12-month period. Registrations effected pursuant to this Section
3.3
shall
not be counted as demand registrations effected pursuant to Section
3.1.
Section
3.4 Registration
Procedures.
If and
whenever the Company is required by the provisions of Section
3.1, 3.2 or 3.3
to use
reasonable best efforts to effect the registration of any Registrable Securities
under the Securities Act, the Company will, as expeditiously as
possible:
(a) prepare
and file with the Commission a registration statement (which, in the case of
an
underwritten public offering pursuant to Section
3.1,
shall
be on Form S-1 or other form of general applicability satisfactory to the
managing underwriter selected as therein provided) with respect to such
securities and use reasonable best efforts to cause such registration statement
to become and remain effective for the period of the distribution contemplated
thereby (determined as hereinafter provided); provided,
however,
that the
Company’s obligation to file a registration statement, or cause such
registration statement to become and remain effective, shall be suspended for
a
period not to exceed 90 days in any 12-month period if in the reasonable good
faith judgment of the Company’s Board of Directors it would be seriously
detrimental to the Company to effect a registration at such time;
4
(b) prepare
and file with the Commission such amendments and supplements to such
registration statement and the related prospectus as may be necessary to keep
such registration statement effective for the period specified in paragraph
(a)
above and comply with the provisions of the Securities Act with respect to
the
disposition of all Registrable Securities covered by such registration statement
in accordance with the sellers’ intended method of disposition set forth in such
registration statement for such period;
(c) furnish
to each seller of Registrable Securities and to each underwriter such number
of
copies of the registration statement and the prospectus forming a part thereof
(including each preliminary prospectus) as such persons reasonably may request
in order to facilitate the public sale or other disposition of the Registrable
Securities covered by such registration statement;
(d) use
reasonable best efforts to register or qualify the Registrable Securities
covered by such registration statement under the securities or “blue sky” laws
of such jurisdictions as the sellers of Registrable Securities or, in the case
of an underwritten public offering, the managing underwriter reasonably shall
request; provided,
however,
that the
Company shall not for any such purpose be required to qualify generally to
transact business as a foreign corporation in any jurisdiction where it is
not
so qualified or to consent to general service of process in any such
jurisdiction;
(e) list
the
Registrable Securities covered by such registration statement with any
securities exchange (or quotation system) on which the Common Stock of the
Company is then listed (or qualified for inclusion);
(f) immediately
(i) notify each seller of Registrable Securities and each underwriter under
such
registration statement, at any time when a prospectus relating thereto is
required to be delivered under the Securities Act, of the happening of any
event
of which the Company has knowledge as a result of which the prospectus forming
a
part of 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
light of the circumstances then existing and (ii) use commercially reasonable
efforts to amend or supplement such prospectus in order to cause such prospectus
not to include any untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading in light of the circumstances then existing;
(g) notify
each seller of Registrable Securities, promptly after it shall receive notice
thereof, of the time when a registration statement covering such Registrable
Securities has become effective or a prospectus forming a part of the
registration statement or supplement thereto has been filed;
5
(h) if
the
offering is underwritten and at the request of any seller of Registrable
Securities, use reasonable best efforts to furnish on the date that Registrable
Securities are delivered to the underwriters for sale pursuant to such
registration: (i) an opinion dated such date of counsel representing the Company
for the purposes of such registration, addressed to the underwriters and to
such
seller, in form and substance as is customarily given in an underwritten public
offering; and (ii) a letter dated such date from the independent public
accountants retained by the Company, addressed to the underwriters and to such
seller, in form and substance as is customarily given in an underwritten public
offering; and
(i) make
available for inspection by each seller of Registrable Securities, any
underwriter participating in any distribution pursuant to such registration
statement, and any attorney or accountant retained by such seller or
underwriter, all financial and other records, pertinent corporate documents
and
properties of the Company, and cause the Company’s officers, directors and
employees to supply all information reasonably requested by any such seller,
underwriter, attorney or accountant in connection with such registration
statement.
(j) For
purposes of Section
3.4(a) and 3.4(b),
the
period of distribution of Registrable Securities in a firm commitment
underwritten public offering shall be deemed to extend until each underwriter
has completed the distribution of all securities purchased by it, and the period
of distribution of Registrable Securities in any other registration shall be
deemed to extend until the earlier of the sale of all Registrable Securities
covered thereby and 120 days after the effective date thereof.
(k) It
shall
be a condition precedent to the obligations of the Company to take any action
in
connection with each registration pursuant to Sections
3.1, 3.2 or 3.3
hereof,
that the sellers of Registrable Securities furnish to the Company in writing
such information with respect to themselves and the proposed distribution by
them as reasonably shall be necessary in order to assure compliance with federal
and applicable state securities laws.
(l) In
connection with each registration pursuant to Sections
3.1, 3.2 or 3.3
covering
an underwritten public offering, the Company shall not be required to include
any Registrable Securities in such underwriting unless the holders of such
Registrable Securities accept the terms of the underwriting as agreed upon
between the Company and the underwriters selected by it (or by other persons
entitled to select the underwriters), provided
that,
such
terms shall not provide for indemnification or contribution obligations on
the
part of the holders of the Registrable Securities materially greater than the
obligations of such holders pursuant to Section 3.6(b)
hereof.
Section
3.5 Expenses.
All
expenses incurred by the Company in complying with Sections
3.1, 3.2 and 3.3,
including, without limitation, all registration and filing fees, printing
expenses, fees and disbursements of counsel and independent public accountants
for the Company, fees and expenses (including counsel fees) incurred in
connection with complying with state securities or “blue sky” laws, fees of the
National Association of Securities Dealers, Inc., transfer taxes, fees of
transfer agents and registrars and the reasonable fees and disbursements of
one
counsel for the sellers of Registrable Securities not to exceed $25,000, but
excluding any Selling Expenses, are called “Registration Expenses”. All
underwriting discounts and selling commissions applicable to the sale of
Registrable Securities are called “Selling Expenses”. The Company will pay all
Registration Expenses in connection with each registration statement under
Section
3.1, 3.2 or 3.3;
provided,
however,
that the
Company shall not be required to pay for any Registration Expenses of any
registration proceeding begun pursuant to Section
3.1
if the
registration request is subsequently withdrawn on the written request of the
holders of a majority of the Conversion Shares to be registered (in which case
all participating holders of Conversion Shares shall bear such expenses pro
rata), unless the holders of a majority of the Conversion Shares agree to
forfeit their right to one demand registration pursuant to Section
3.1;
provided,
further
that if at the time of such withdrawal, such holders of Conversion Shares have
learned of a material adverse change in the Company from that known to such
holders at the time of the request and have withdrawn the request with
reasonable promptness following disclosure by the Company of or such holders’
otherwise having learned of such material adverse change, then the Company
shall
pay the Registration Expenses of such holders, and such holders shall not be
required to pay any of such expenses and shall not forfeit their right to a
demand registration pursuant to Section
3.1.
All
Selling Expenses in connection with each such registration statement shall
be
borne by the participating sellers.
6
Section
3.6 Indemnification
and Contribution
(a) In
the
event of a registration of any of the Registrable Securities under the
Securities Act pursuant to Section
3.1, 3.2 or 3.3,
the
Company will indemnify and hold harmless each seller of such Registrable
Securities thereunder, each underwriter of such Registrable Securities
thereunder and each other person, if any, who controls such seller or
underwriter within the meaning of the Securities Act, against any losses,
claims, damages or liabilities, joint or several, to which such seller,
underwriter or controlling person may become subject under the Securities Act,
the Exchange Act, any state securities laws or any rule or regulation
promulgated under the Securities Act, Exchange Act or any state securities
laws
or otherwise, insofar as such losses, claims, damages or liabilities (or actions
in respect thereof) (i) arise out of or are based upon any untrue statement
or
alleged untrue statement of any material fact contained in any registration
statement under which such Registrable Securities were registered under the
Securities Act, any preliminary prospectus, final prospectus or “free writing
prospectus” (as defined pursuant to Rule 405 of the Securities Act) relating
thereto, or the Time of Sale Information, each as amended or supplemented,
if
applicable, (ii) arise out of or are based upon the omission or alleged omission
to state therein a material fact required to be stated therein or necessary
to
make the statements therein not misleading or (iii) arise out of or are based
on
any violation or alleged violation by the Company of the Securities Act, the
Exchange Act, any state securities laws or any rule or regulation promulgated
under the Securities Act, the Exchange Act or any state securities laws, and
will reimburse each such seller, each such underwriter and each such controlling
person for any legal or other expenses reasonably incurred by them in connection
with investigating or defending any such loss, claim, damage, liability or
action; provided,
however,
that the
Company will not be liable to any such indemnitee (i) for any 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, conditioned or delayed), provided
that,
any
settlement effected without the consent of the Company shall not relieve the
Company from any liability which it may have to such indemnified party for
such
damage other than under this Section
3.6,
(ii) if
and to the extent that any such loss, claim, damage or liability arises out
of
or is based upon an untrue statement or alleged untrue statement or omission
or
alleged omission so made in conformity with information furnished by such
indemnitee in writing specifically for use in such registration statement or
prospectus, or (iii) if and to the extent that, in the case of a sale directly
by such holder of Registrable Securities (including a sale of such Registrable
Securities through any underwriter retained by such holder of Registrable
Securities to engage in a distribution solely on behalf of such holder of
Registrable Securities), such untrue statement or alleged untrue statement
or
omission or alleged omission was contained in a preliminary prospectus and
corrected in a final or amended prospectus, and such holder of Registrable
Securities failed to deliver a copy of the final or amended prospectus at or
prior to the confirmation of the sale of the Registrable Securities to the
Person asserting any such loss, claim, damage or liability in any case where
such delivery is required by the Securities Act or any state securities laws,
provided
that,
notice
of the filing of such final or amended prospectus was properly delivered by
the
Company pursuant to Section
3.4(g).
7
(b) In
the
event of a registration of any of the Registrable Securities under the
Securities Act pursuant to Section
3.1, 3.2 or 3.3,
each
seller of such Registrable Securities thereunder, severally and not jointly,
will indemnify and hold harmless the Company, each person, if any, who controls
the Company within the meaning of the Securities Act, each officer of the
Company who signs the registration statement, each director of the Company,
each
underwriter and each person who controls any underwriter within the meaning
of
the Securities Act, against all losses, claims, damages or liabilities, joint
or
several, to which the Company or such officer, director, underwriter or
controlling person may become subject under the Securities Act, the Exchange
Act, any state securities laws or any rule or regulation promulgated under
the
Securities Act or any state securities laws or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise
out
of or are based upon any untrue statement or alleged untrue statement of any
material fact contained in the registration statement under which such
Registrable Securities were registered under the Securities Act, any preliminary
prospectus, final prospectus or “free writing prospectus” (as defined pursuant
to Rule 405 of the Securities Act) relating thereto, or the Time of Sale
Information, each as amended or supplemented, if applicable, or arise out of
or
are based upon the omission or alleged omission to state therein a material
fact
required to be stated therein or necessary to make the statements therein not
misleading, and will reimburse the Company and each such officer, director,
underwriter and controlling person for any legal or other expenses reasonably
incurred by them in connection with investigating or defending any such loss,
claim, damage, liability or action; provided,
however,
that
such seller will be liable hereunder in any such case if and only to the extent
that any such loss, claim, damage or liability arises out of or is based upon
an
untrue statement or alleged untrue statement or omission or alleged omission
made in reliance upon and in conformity with information pertaining to such
seller, as such, furnished in writing to the Company by such seller specifically
for use in such registration statement or prospectus; and provided,
further, however, that the liability of each seller hereunder shall be limited
to the proportion of any such loss, claim, damage, liability or expense which
is
equal to the proportion that the public offering price of the shares sold by
such seller under such registration statement bears to the total public offering
price of all securities sold thereunder, but not in any event to exceed the
net
proceeds (after deduction of underwriting discounts and other Selling Expenses)
to such seller from the sale of Registrable Securities covered by such
registration statement.
8
(c) Promptly
after receipt by an indemnified party hereunder of notice of the commencement
of
any action, such indemnified party shall, if a claim in respect thereof is
to be
made against the indemnifying party hereunder, notify the indemnifying party
in
writing thereof, but the omission so to notify the indemnifying party shall
not
relieve it from any liability which it may have to such indemnified party other
than under this Section
3.6
and
shall only relieve it from any liability which it may have to such indemnified
party under this Section
3.6
if and
to the extent the indemnifying party is prejudiced by such omission. In case
any
such action shall be brought against any indemnified party and it shall notify
the indemnifying party of the commencement thereof, the indemnifying party
shall
be entitled to participate in and, to the extent it shall wish, to assume and
undertake the defense thereof with counsel mutually satisfactory to the parties,
and, after notice from the indemnifying party to such indemnified party of
its
election so to assume and undertake the defense thereof, the indemnifying party
shall not be liable to such indemnified party under this Section
3.6
for any
legal expenses subsequently incurred by such indemnified party in connection
with the defense thereof other than reasonable costs of investigation and of
liaison with counsel so selected; provided,
however,
that, if
the defendants in any such action include both the indemnified party and the
indemnifying party and the indemnified party shall have reasonably concluded
that there may be reasonable defenses available to it which are different from
or additional to those available to the indemnifying party or if the interests
of the indemnified party reasonably may be deemed to conflict with the interests
of the indemnifying party, the indemnified party shall have the right to select
a separate counsel and to assume such legal defenses and otherwise to
participate in the defense of such action, with the expenses and fees of such
separate counsel and other expenses related to such participation to be
reimbursed by the indemnifying party as incurred. No indemnifying party, in
the
defense of any such claim or litigation shall, except with the consent of each
indemnified party, consent to entry of any judgment or enter into any settlement
which does not include as an unconditional term thereof the giving by the
claimant or plaintiff to such indemnified party of a release from all liability
in respect of such claim or litigation. The indemnifying party also shall be
responsible for the expenses of such defense if the indemnifying party does
not
elect to assume such defense.
(d) In
order
to provide for just and equitable contribution to joint liability under the
Securities Act in any case in which either (i) any holder of Registrable
Securities exercising rights under this Agreement, or any controlling person
of
any such holder, makes a claim for indemnification pursuant to this Section
3.6
but it
is judicially determined (by the entry of a final judgment or decree by a court
of competent jurisdiction and the expiration of time to appeal or the denial
of
the last right of appeal) that such indemnification may not be enforced in
such
case notwithstanding the fact that this Section
3.6
provides
for indemnification in such case, or (ii) contribution under the Securities
Act
may be required on the part of any such selling holder or any such controlling
person in circumstances for which indemnification is provided under this
Section
3.6;
then,
and in each such case, the Company and such holder will contribute to the
aggregate losses, claims, damages or liabilities to which they may be subject
(after contribution from others) 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, as well as any other relevant equitable
considerations. The relative fault of the parties shall be determined by
reference to, among other things, whether the untrue or alleged untrue statement
of a material fact or the omission to state 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; provided,
however,
that, in
any such case, (A) no such holder will be required to contribute, when added
to
any amounts paid pursuant to Section
3.6(c),
an
amount in excess of the net proceeds (after deduction of underwriting discounts
and other selling expenses) to such seller from the sale of Registrable
Securities covered by such registration statement; and (B) no person or entity
guilty of fraudulent misrepresentation (within the meaning of Section 11(f)
of
the Securities Act) will be entitled to contribution from any person or entity
who was not guilty of such fraudulent misrepresentation.
9
(e) Any
reference in this Section
3.6
to a
registration statement shall be deemed to mean the registration statement,
as
amended at the time of such registration statement’s effectiveness for purposes
of Section 11 of the Securities Act (the “Effective
Time”),
including (i) all documents filed as a part thereof or incorporated or deemed
incorporated by reference therein, (ii) any information contained or
incorporated by reference in a prospectus filed with the Commission pursuant
to
Rule 424(b) under the Securities Act, to the extent such information is deemed,
pursuant to Rule 430B or Rule 430C under the Act, to be part of the registration
statement at the Effective Time, and (iii) any registration statement filed
to
register the offering and sale of securities thereunder pursuant to Rule 462(b)
under the Securities Act. Any reference in this Section
3.6
to a
prospectus or the Time of Sale Information shall be deemed to refer to and
include the documents, if any, incorporated by reference, or deemed to be
incorporated by reference, therein, including, unless the context otherwise
requires, the documents, if any, filed as exhibits to such incorporated
documents. Any reference in this Section
3.6
to the
terms “amend,” “amendment,” or “supplement” (or any derivations thereof) with
respect to a registration statement, prospectus or the Time of Sale Information
shall be deemed to refer to and include the filing of any document under the
Exchange Act on or after the date of a registration statement, or the date
of a
prospectus or such Time of Sale Information, as the case may be, and deemed
to
be incorporated therein by reference.
(f) The
rights and obligations of the parties hereto under this Section 3.6
shall
survive the termination of this Agreement.
Section
3.7 Changes
in Common Stock.
If, and
as often as, there is any change in the Common Stock by way of a stock split,
stock dividend, combination or reclassification, or through a merger,
consolidation, reorganization or recapitalization, or by any other means,
appropriate adjustment shall be made in the provisions hereof so that the rights
and privileges granted hereby shall continue with respect to the Common Stock
as
so changed.
Section
3.8 Rule
144 Reporting.
With a
view to making available the benefits of certain rules and regulations of the
Commission which may at any time permit the sale of the Registrable Securities
to the public without registration, the Company agrees to:
(a) make
and
keep public information available, as those terms are understood and defined
in
Rule 144 under the Securities Act;
(b) 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
10
(c) furnish
to each holder of Registrable Securities forthwith upon request a written
statement by the Company as to its compliance with the reporting requirements
of
such Rule 144 and of the Securities Act and the Exchange Act, a copy of the
most
recent annual or quarterly report of the Company, and such other reports and
documents so filed by the Company as such holder may reasonably request in
availing itself of any rule or regulation of the Commission allowing such holder
to sell any Registrable Securities without registration.
Section
3.9 Future
Registration Rights.
In
addition to any other restrictions imposed hereby, the Company shall not, except
with the consent of the holders of a majority of the Conversion Shares, enter
into any agreement with any holder or prospective holder (each, an "Other
Holder") of any securities of the Company that would grant such Other Holder
registration rights that would (i) reduce the amount of Conversion Shares that
may be registered pursuant to Section
3.1, 3.2 or 3.3
hereof,
or (ii) otherwise provide any Other Holder the right to register any securities.
In addition, except with the consent of the holders of a majority of the
Registrable Securities held by the Acquisition Stockholders, the Company shall
not enter into any agreement with any Other Holder that would grant such Other
Holder registration rights that are superior to the registration rights of
the
Acquisition Stockholders hereunder; provided,
however,
that
the foregoing consent of the Acquisition Stockholders shall not be required
if
Registrable Securities held by the Acquisition Stockholders are treated pari
passu with the registrable securities of such Other Holder(s) on a pro rata
basis.
Section
3.10 Market
Stand Off.
(a) In
order
to provide for an orderly market for the sale of Common Stock in offerings
to
which this Agreement relates and to enable the parties hereto to benefit from
such an orderly market, each Investor, Principal Stockholder, Acquisition
Stockholder and Key Manager hereby agrees that in the event the Company notifies
the holders in writing that it intends to file a registration statement for
an
underwritten public offering of its Common Stock (other than a registration
statement described in Section
3.10(f))
with
the SEC (a “Filing
Notice”),
each
Investor, Principal Stockholder, Acquisition Stockholder and Key Manager shall
not, directly or indirectly sell, offer to sell, contract to sell (including,
without limitation, any short sale), grant any option to purchase or otherwise
transfer or dispose of any securities of the Company held by it at any time,
excluding shares of Common Stock included in such registration, during the
period of time commencing on the date of receipt of the Filing Notice
(calculated in accordance with the notice provisions hereof) and ending
on:
(i) the
31st
day
following the date of receipt of the Filing Notice, in the event the Company
has
not filed a registration statement with the SEC during such time period;
or
(ii) in
the
event the Company files a registration statement with the SEC within the period
of time set forth in clause (i) above, then the earlier of (A) the
91st
day
following the first filing of such registration statement or (B) the first
day
on which a lock-up agreement referenced in Section
3.10(b)
becomes
effective.
The
Filing Notice shall include a statement that the anticipated offering price
for
the Registrable Securities to be included in such offering is not less that
$100
million in the aggregate.
11
(b) In
addition to the provisions of Section
3.10(a),
each
Investor, Principal Stockholder, Acquisition Stockholder and Key Manager also
hereby agrees that,
during
the period of time requested by the managing underwriter(s) in the applicable
offering (not to exceed 90 days) following the date of the final prospectus
related to a registration statement of the Company filed under the Securities
Act, it shall not, to the extent requested by the Company and such underwriter,
directly or indirectly sell, offer to sell, contract to sell (including, without
limitation, any short sale), grant any option to purchase or otherwise transfer
or dispose of any securities of the Company held by it at any time during such
period except Common Stock included in such registration.
(c) Notwithstanding
the foregoing, an Investor, Principal Stockholder, Acquisition Stockholder
or
Key Manager shall be allowed to pledge shares of Common Stock pursuant to a
bona
fide pledge; provided,
and
only if, (i) the pledgee with respect to such shares executes an agreement
substantially in the form attached hereto as Exhibit A
and (ii)
the shares of Common Stock subject to the pledge are released to the applicable
Investor, Principal Stockholder, Acquisition Stockholder or Key Manager no
later
than the third business day following the closing of the offering to which
this
Section
3.10
applies.
(d) In
order
to enforce the covenants set forth in this Section
3.10,
the
Company may impose stop transfer instructions with respect to the Registrable
Securities of each (and the shares or securities of every other person subject
to the foregoing restriction) until the end of such period.
(e) Each
holder of Conversion Shares hereby agrees that in the event such holder,
directly or indirectly, sells, offers to sell, contracts to sell (including,
without limitation, any short sale), grants any option to purchase or otherwise
transfers or disposes of Registrable Securities, such shares shall be deemed
to
be Conversion Shares unless such holder delivers to the Company within 10 days
after such sale, offer, grant, transfer or disposition a written notice
indicating that such shares are not Conversion Shares and shall indicate the
manner in which the Registrable Securities proposed to be sold, offered,
granted, transferred or disposed of were previously acquired by such
holder.
(f) The
obligations described in this Section 3.10
shall
not apply to a registration (i) relating solely to employee benefit plans on
Form S-l or Form S-8 or similar forms which may be promulgated in the future,
(ii) relating solely to an SEC Rule 145 transaction on Form S-4 or similar
forms
that may be promulgated in the future or (iii) in which the anticipated offering
price to the public for the Registrable Securities to be included in the
offering is less than $100 million in the aggregate.
(g) The
obligations of each Investor, Principal Stockholder, Acquisition Stockholder
and
Key Manager under this Section 3.10
shall
terminate upon the termination of the Company’s obligations to register
Registrable Securities held by such party pursuant to Section 3.11.
(h) The
provisions of this Section
3.10
shall
apply only to the next offering following the effectiveness of this Amended
and
Restated Registration Rights Agreement (the “Next
Offering”);
provided,
however,
upon
written notice signed by the Company and the holders of at least 60% of the
then-outstanding Conversion Shares, the provisions of this Section
3.10
may be
made applicable to future registrations (other than registrations described
in
Section 3.10(f))
of the
Company.
12
(i) For
purposes of the Next Offering, the parties hereto agree that (i) the form of
Lock-up Agreement attached as Exhibit
B
hereto
shall serve as the requested lock-up agreement for purposes of Section
3.10(b)
and (ii)
the initial lock-up period that is the subject of the lock-up agreement set
forth in the foregoing clause (i) for the Next Offering shall not extend beyond
March 31, 2008.
(j) Notwithstanding
the foregoing, (i) with respect to Section 3.10(a),
the
Company shall have the authority to allow such exceptions to Section
3.10(a)
(and the
other provisions of this Section 3.10
applicable thereto, excluding Section
3.10(b))
as it
deems advisable; provided
that
such granting of an exception must be in writing; and provided
further
that in
the event of any release of any securities from the restrictions set forth
in
Section
3.10(a)
the
other parties hereto then subject to the restrictions set forth in this
Section
3.10(a)
shall be
released from such restrictions on a pro rata basis; provided,
however,
there
shall be no such pro rata release if it is determined by a majority of the
members of the Company’s Board of Directors then in office that there shall be
no pro rata release and (ii) with respect to Section
3.10(b),
the
Company and the managing underwriter(s) in such offering shall have the
authority to allow such exceptions to Section
3.10(b)
(and the
other provisions of this Section
3.10
applicable thereto, excluding Section
3.10(a))
as they
together deem advisable; provided
that
such granting of an exception must be in writing; and provided
further
that in
the event of any release of any securities from the restrictions set forth
in
Section
3.10(b)
the
other parties hereto then subject to the restrictions set forth in this
Section 3.10(b)
shall be
released from such restrictions on a pro rata basis; provided,
however,
there
shall be no such pro rata release if it is determined by both the managing
underwriter(s) for such offering and a majority of the members of the Company’s
Board of Directors then in office that there shall be no pro rata
release.
(k) The
Company hereby agrees that it will not enter into an underwriting agreement
for
an offering to which this Section
3.10
applies
unless such underwriting agreement contains provisions requiring that the
underwriters in such offering abide, to the extent applicable, by the provisions
of this Section
3.10.
Section
3.11 Termination
of Registration Rights.
The
obligations of the Company to register Registrable Securities under Section
3.1, 3.2 or 3.3
for a
holder of Registrable Securities shall terminate on the earliest to occur of
(i)
the fifth anniversary of the IPO Date (April 18, 2012) and (ii) the date on
which such holder can, in the reasonable opinion of counsel to the Company,
sell
all shares of his Registrable Securities in a three-month period without
registration under the Securities Act pursuant to Rule 144 under the Securities
Act; provided,
however,
that the
obligation of the Company to register Registrable Securities under Section
3.1, 3.2 or 3.3
shall
continue with respect to any holder while such holder owns more than 1% of
the
Company’s outstanding Common Stock (as calculated for purposes of paragraph (e)
of Rule 144).
ARTICLE
IV.
[Intentionally
Omitted.]
13
ARTICLE
V.
[Intentionally
Omitted.]
ARTICLE
VI.
Miscellaneous
Section
6.1 Assigns.
All
covenants and agreements contained in this Agreement by or on behalf of any
of
the parties hereto shall bind and inure to the benefit of the respective
successors and assigns of the parties hereto, including, without limitation,
transferees of any Registrable Securities, whether so expressed or not, each
of
whom as a condition to such transfer shall execute an Adoption Agreement in
the
form attached hereto as Exhibit
C;
provided,
however,
that
rights to register Registrable Securities pursuant to Article III may be
transferred only to (i) any then-current holder of Registrable Securities,
(ii)
any Affiliate of a holder of Registrable Securities, (iii) any family member
or
trust of any individual holder of Registrable Securities, (iv) a transferee
who
acquires at least 250,000 shares of Registrable Securities or (v) a transferee
if the Company approves of the transfer of such rights in writing.
Section
6.2 Notices.
Any
notice required or permitted by this Agreement shall be in writing and shall
be
deemed effectively given: (1) upon actual delivery, when delivered personally;
(b) upon receipt when sent by confirmed telegram or fax if sent during normal
business hours, and if not, then on the next business day; (c) one day after
deposit with a nationally recognized overnight courier, specifying next day
delivery, with written verification of receipt; (d) five business days after
being deposited in the U.S. mail, as certified or registered mail, return
receipt requested, postage prepaid if addressed to U.S. addressees or (e) seven
business days after being deposited in the U.S. mail, as certified or registered
mail, return receipt requested, postage prepaid if addressed to non-U.S.
addressees. All communications hereunder shall be sent addressed as follows
(or
at such other address as a party may designate by ten days’ advance written
notice to the other parties hereto):
(i) if
to the
Company, at its principal place of business, with a copy to Xxxxxx X. Xxxxxxx,
Fish & Xxxxxxxxxx, PC, 000 Xxxxxxxx Xxxxxx, Xxxxx 000, Xxxxxx, XX 00000,
facsimile: (000) 000-0000;
(ii) if
to any
holder of Registrable Securities, at such address as may have been furnished
to
the Company in writing by such holder.
Section
6.3 Governing
Law.
This
Agreement shall be governed by and construed in accordance with the laws of
the
State of Delaware without giving effect to principles of conflicts of laws.
Section
6.4 Amendments.
This
Agreement may not be amended or modified, and no provision hereof may be waived,
without the written consent of the Company and the holders of at least 60%
of
the Conversion Shares held by the Investors; provided,
however,
that (i)
in the event such amendment or waiver adversely affects the rights and/or
obligations of the Principal Stockholders, Acquisition Stockholders or Key
Management in a different manner than the Investors, such amendment or waiver
shall also require the written consent of the holders of a majority of the
Common Stock then held by the Principal Stockholders, the Acquisition
Stockholders or the holders of a majority of the Common Stock then held by
Key
Management who are then providing services to the Company as an employee,
officer or director, as the case may be, (ii) any amendment or waiver that
affects one holder of Conversion Shares in a disproportionately adverse manner
as compared to other holders of Conversion Shares must be approved by the
disproportionately affected holder of Conversion Shares and (iii) in the event
such amendment or waiver adversely affects the registration rights of the
Acquisition Stockholders under Article III or the rights of the Acquisition
Stockholders under this Section
6.4,
such
amendment or waiver shall also require the written consent of the holders of
a
majority of the Registrable Securities then held by the Acquisition
Stockholders; and provided further that the Board of Directors shall have the
right (a) to amend or modify the list of Key Management on Schedule
C
hereto
from time to time to add or remove certain individuals who become or are no
longer employees, officers or directors of the Company; provided,
however,
that,
subject to Section
6.10,
the
Board shall not remove any individual from Schedule C
without
the consent of such member of Key Management and (b) to amend or modify the
list
of Acquisition Stockholders on Schedule
D
hereto
from time to time to add certain entities or individuals that may become
stockholders of the Company from time to time in connection with a bona fide
business acquisition in which the Company or any subsidiary of the Company
is
the acquiror. In the event of any addition of a member of Key Management or
Acquisition Stockholder who shall have been approved by the Board of Directors,
such member of Key Management or Acquisition Stockholder shall become a party
to
this Agreement upon receipt from such new member of Key Management or
Acquisition Stockholder of a fully executed adoption agreement in the form
attached as Exhibit
C
hereto.
Any amendment or waiver effected in accordance with this Section shall be
binding upon each holder of Registrable Securities then outstanding, each future
holder of all such Registrable Securities and the Company.
14
Section
6.5 Counterparts;
Facsimile Signatures.
This
Agreement may be executed in two or more counterparts, each of which shall
be
deemed an original, but all of which together shall constitute one and the
same
instrument. This Agreement may be executed by facsimile signatures.
Section
6.6 Severability.
If any
provision of this Agreement shall be held to be illegal, invalid or
unenforceable, such illegality, invalidity or unenforceability shall attach
only
to such provision and shall not in any manner affect or render illegal, invalid
or unenforceable any other provision of this Agreement, and this Agreement
shall
be carried out as if any such illegal, invalid or unenforceable provision were
not contained herein.
Section
6.7 Joint
Product.
This
Agreement is the joint product of the Company and the other parties hereto
and
each provision hereof and thereof has been subject to the mutual consultation,
negotiation and agreement of the Company and the other parties hereto and shall
not be construed against any party hereto.
15
Section
6.8 Termination
of Prior Agreement.
The
parties hereto agree that the Prior Agreement is hereby amended and restated
and
shall be of no further force or effect.
Section
6.9 Consent
to Grant of Registration Rights.
Pursuant
to Section 3.9 of the Prior Agreement, the Investors (as defined in the Prior
Agreement) holding a majority of the Preferred Registrable Securities (as
defined in the Prior Agreement) hereby consent to the grant of registration
rights provided for in this Agreement.
Section
6.10 Removal
of Key Management.
As set
forth in Section 6.4,
as a
general matter Key Manager may not be removed from this Agreement without the
written consent of such Key Manager. Notwithstanding the foregoing, a Key
Manager may be removed from this Agreement by the affirmative consent of a
majority of the Company’s Board of Directors then in office in the event such
Key Manager’s service with the Company is terminated (i) by the Company for
“Cause” as such term is defined in the employment agreement between the Company
and such Key Manager or, if there shall be no such employment agreement or
if
such employment agreement does not contain such defined term, then as such
term
is defined in the Company’s 2006 Long-term Incentive Plan or (ii) by the Key
Manager other than for “Good Reason” as such term is defined in the employment
agreement between the Company and such Key Manager or, if there shall be no
such
employment agreement or if such employment agreement does not contain such
defined term, then as such term is defined in the Company’s 2006 Long-term
Incentive Plan; provided,
however,
if at
the time of the proposed removal of a Key Manager by the Company’s Board of
Directors pursuant to this Section 6.10,
such
Key Manager is subject to the transfer restrictions set forth in Section
3.10(b),
then
the Key Manager shall remain a party to this Agreement and such removal shall
not be effective until the earlier of (a) the release of such Key Manager from
such transfer restrictions or (b) the termination of such period in accordance
with the agreement between the managing underwriters and the Key
Manager.
[Signature
pages follow]
16
IN
WITNESS WHEREOF,
the
undersigned party has executed this counterpart signature page to the
Registration Rights Agreement as of the date first written above.
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COMPANY:
COMVERGE,
INC.
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Xxxxxx
X. Xxxxxx
Chief
Executive Officer
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[COUNTERPART
SIGNATURE PAGE TO COMVERGE, INC. REGISTRATION RIGHTS AGREEMENT]
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INVESTORS:
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AIR
PRODUCTS AND CHEMICALS,
INC.
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By:
Name:
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Title:
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ACORN
FACTOR, INC.
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By:
Name:
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Title:
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ENERTECH
CAPITAL PARTNERS II
L.P.
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By:
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ECP
II Management L.P.,
Its
General Partner
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By:
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ECP II Management L.L.C.,
Its
General Partner
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By:
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Xxxxx
Xxxxxxx
Managing
Director
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ECP
II INTERFUND
L.P.
|
|
By:
|
ECP
II Management L.P.,
Its
General Partner
|
|
|
By:
|
Xxxxx
Xxxxxxx
Managing
Director
|
|
[COUNTERPART
SIGNATURE PAGE TO COMVERGE,
INC. REGISTRATION RIGHTS
AGREEMENT]
|
|
INVESTORS:
|
||
|
EASTON
XXXX CAPITAL PARTNERS,
L.P.
|
|
By:
|
EHP
GP, L.P.,
Its
General Partner
|
|
|
By:
|
EHC,
Inc.,
Its
General Partner
|
|
By:
Name:
|
|
|
|
Title:
|
|
|
|
|
|
|
E.ON
VENTURE PARTNERS
|
|
By:
Name:
|
|
|
|
|
Managing
Director
|
|
|
By:
|
Xxxxxxx
Xxxxxxxxxxxx
Managing
Director
|
|
PARTNERS
FOR GROWTH
L.P.
|
|
By:
|
Partners
for Growth, LLC,
Its
General
Partner
|
|
By:
Name:
|
|
|
|
Title:
|
|
|
|
|
|
|
|
NTH
POWER TECHNOLOGIES FUND II, L.P.,
|
||
|
NTH
POWER TECHNOLOGIES FUND II-A,
L.P.
|
||
|
By:
|
NTH
POWER MANAGEMENT II, L.P.
AND
NTH
POWER MANAGEMENT II-A,
L.L.C.
|
|
|
By:
|
Nth
Power L.L.C.
Their
Management
Agent
|
|
By:
Name:
|
|
|
|
Title:
|
|
|
|
|
|
|
INVESTORS:
|
||
|
RIDGEWOOD
COMVERGE,
LLC
|
|
By:
Name:
|
|
|
|
Title:
|
|
|
|
|
|
|
SHELL
INTERNET VENTURES
B.V.
|
|
By:
Name:
|
|
|
|
Title:
|
|
|
|
|
|
|
NORSK
HYDRO TECHNOLOGY VENTURES
AS
|
|
By:
Name:
|
|
|
|
Title:
|
|
|
|
|
|
|
ROCKPORT
CAPITAL PARTNERS,
L.P.
|
|
By:
|
ROCKPORT
CAPITAL I, LLC
ITS
GENERAL
PARTNER
|
|
By:
Name:
|
|
|
|
Title:
|
Managing Member |
|
RP
CO-INVENTMENT FUND I,
L.P.
|
|
By:
|
RP
CO-INVESTMENT FUND I GP, LLC
ITS
GENERAL
PARTNER
|
|
By:
Name:
|
|
|
|
Title:
|
Managing Member |
|
XXXXXXX
VENTURES
INC.
|
|
By:
Name:
|
|
|
|
Title:
|
|
|
|
|
|
|
[COUNTERPART
SIGNATURE PAGE TO COMVERGE,
INC. REGISTRATION RIGHTS
AGREEMENT]
|
|
INVESTORS:
|
||
| |
|
|
|
Xxxxxxx
Xxxxxxx
|
||
|
Xxxx
Xxxxx
|
||
|
Xxxxxx
Xxxxxxx
|
||
[COUNTERPART
SIGNATURE PAGE TO COMVERGE, INC.
REGISTRATION RIGHTS AGREEMENT]
|
PRINCIPAL
STOCKHOLDERS:
|
||
| |
|
|
|
ACORN
FACTOR, INC.
|
||
|
By:
Name:
|
||
|
|
||
|
Title:
|
||
[COUNTERPART
SIGNATURE PAGE TO COMVERGE, INC. REGISTRATION RIGHTS AGREEMENT]
|
KEY
MANAGEMENT:
|
||
| |
|
|
|
Xxxxxx X. Xxxxxx |
||
|
T. Xxxxx Xxxx |
||
|
Xxxxx Xxxxxxxx |
||
|
Xxxxxx X. Xxxxxx |
||
|
Xxxxxxx X. Xxxxxx |
||
|
Xxxx Xxxxx |
||
|
Xxxxxx Xxx, XX |
||
|
Xxxx Xxxxxx |
||
|
Xxx Xxx Xxxxxxx |
||
[COUNTERPART
SIGNATURE PAGE TO COMVERGE, INC. REGISTRATION RIGHTS AGREEMENT]
|
ACQUISITION
STOCKHOLDERS:
|
||
| |
|
|
| [signature block for entities]: |
(print name of entity) |
|
|
By:
Name:
|
||
|
|
||
|
Title:
|
||
| [signature block for individuals]: | ||
|
(signature) |
||
|
Name:
|
||
[COUNTERPART
SIGNATURE PAGE TO COMVERGE, INC. REGISTRATION RIGHTS AGREEMENT]
SCHEDULE
A
Investors
|
Name
and Address of Investors
|
Conversion
Shares
|
|||
|
Air
Products and Chemicals, Inc.
0000
Xxxxxxxx Xxxxxxxxx
Xxxxxxxxx,
XX 00000-0000
Attention:
Director, Venture Investments
Fax:
(000) 000-0000
|
427,071
|
|||
|
Acorn
Factor, Inc.
000
XX 00
Xxxxxx,
Xxx Xxxxxx 00000
Attention:
Xxxxxx Xxxxxxxxxxx
Fax:
(000) 000-0000
|
||||
|
Easton
Xxxx Capital Partners, L.P.
000
Xxxxx Xxxxxx - 7th
Floor
New
York, New York 10017
Attention:
Xxxxxxx Xxxxxxxxx
Fax:
(000) 000-0000
|
199,141
|
|||
|
EnerTech
Capital Partners II L.P.
700
Building
000
Xxxxx Xxxx Xxxxx
Xxxxx,
Xxxxxxxxxxxx 00000-0000
Attention:
Xxxxx Xxxxxxx
Fax:
(000) 000-0000
|
1,798,366
|
|||
|
ECP
II Interfund L.P.
700
Building
000
Xxxxx Xxxx Xxxxx
Xxxxx,
Xxxxxxxxxxxx 00000-0000
Attention:
Xxxxx Xxxxxxx
Fax:
(000) 000-0000
|
68,598
|
|||
|
E.ON
Venture Partners
E.ON
Xxxxx 0
00000
Xxxxxxxxxx
Xxxxxxx
Attention:
Xxxxxxx Xxxxxxxxxxxx
Fax:
000.00.000.00.00.000
|
599,780
|
|||
A-1
|
Name
and Address of Investors
|
Conversion
Shares
|
|||
|
Nth
Power
00
Xxxxxxxxxx Xxxxxx
Xxx
Xxxxxxxxx, Xxxxxxxxxx 00000
Attention:
Xxx Xxxxxxxx
Fax:
(000) 000-0000
|
1,526,878
|
|||
|
Shell
Internet Ventures B.V.
x/x
Xxxxx Xxxxxx, XXX XXX
Xxxxxx,
XX0 0XX, XX
Attention:
Xxxx Xxxxx and
Xxxxxxx
Xxxxxx
Fax:
(000) 000-0000
|
179,934
|
|||
|
Ridgewood
Comverge, LLC
c/o
Ridgewood Capital
000
Xxxxxxx Xxxxxx
Xxxxxxxxx,
XX 00000
Attention:
Xxxxxx X. Gold
Fax:
(000) 000-0000
|
468,877
|
|||
|
Norsk
Hydro Technology Ventures AS
Xxxxxxx
00, Xxxxxxxx
X-0000
Xxxx
Xxxxxx
Attention:
Xxxx Xxxx
Fax:
000 00 00 00 00 00
|
245,251
|
|||
|
Partners
for Growth, L.P.
000
Xxxxxxx Xxxxxx
Xxx
Xxxxxxxxx, Xxxxxxxxxx 00000
Attention:
Xxxxxxxx Xxxxx
Fax:
(000) 000-0000
|
16,594
|
|||
|
Xxxxxxx
Xxxxxxx
0000
Xxxxxx Xxxxx Xxxxx
Xxxxxxxx,
XX 00000
Fax:
(000) 000-0000
|
1,440
|
|||
|
Xxxx
Xxxxx
0
Xxxxxxx Xxxxxx
Xxxxxxx,
XX 00000
Fax:
(000) 000-0000
|
1,199
|
|||
A-2
|
Name
and Address of Investors
|
Conversion
Shares
|
|||
|
Xxxxxx
Xxxxxxx
0
Xxxxx Xxxx
Xxxxxxxxx,
XX 00000
Fax:
(000) 000-0000
|
8,163
|
|||
|
Xxxxxxx
Ventures Inc.
0000
X. Xxxxxxxxxx Xxxxxx
Xx.
Xxxxx, XX 00000
Attention:
X. X. Xxxxx
Fax:
(000) 000-0000
|
770,989
|
|||
|
RockPort
Capital Partners, L.P.
000
Xxxxxxx Xxxxxx, 00xx
Xxxxx
Xxxxxx,
XX 00000
Attention:
Xxxxxxxxx Xxxxx
Fax:
(000) 000-0000
|
1,003,282
|
|||
|
RP
Co-Investment Fund I, L.P.
000
Xxxxxxx Xxxxxx, 00xx
Xxxxx
Xxxxxx,
XX 00000
Attention:
Xxxxxxxxx Xxxxx
Fax:
(000) 000-0000
|
334,427
|
|||
|
TOTAL
|
7,222,919
|
|||
A-3
SCHEDULE
B
Principal
Stockholders
|
Name
and Address of Principal Stockholders
|
Registrable
Securities
|
|||
|
Acorn
Factor, Inc.
000
XX 00
Xxxxxx,
Xxx Xxxxxx 00000
Attention: Xxxx
X. Xxxxx
Fax:
(000) 000-0000
|
2,207,654
|
|||
B-1
SCHEDULE
C
Key
Management
|
Name
and Address of Key Management
|
Registrable
Securities
|
|||
|
Xxxxxx
X. Xxxxxx
00000
Xxxxxx Xxxx
Xxxxxxx,
XX 00000
|
792,575
|
|||
|
T.
Xxxxx Xxxx
00
Xxxxxxxxxx Xxxxx
Xxxxxxx,
XX 00000
|
154,411
|
|||
|
Xxxxx
Xxxxxxxx
00
Xxxxxxxx Xxxxxx
Xxxxxxxx,
XX 00000
|
273,279
|
|||
|
Xxxxxx
X. Xxxxxx
000
Xxxxxxxxxxx Xxxxx
Xxxxxxxxxx,
XX 00000-0000
|
78,812
|
|||
|
Xxxxxxx
X. Xxxxxx
0000
Xxxx Xxxxxxx Xxxxx XX
Xxxxxxx,
XX 00000-0000
|
25,000
|
|||
|
Xxxx
Xxxxx
0
Xxxxxxxx Xxxxxx
Xxxxxxx,
XX 00000-0000
|
[________
|
]
|
||
|
Xxxxxx
Xxx, XX
00
Xxxx Xxxxxxx
Xxxxxxxxxx,
XX 00000-0000
|
33,382
|
|||
|
Xxxx
Xxxxxx(A)
000
Xxxxxxxx Xxx
Xxxxxxx
Xxxxxx, XX 00000
|
59,907
|
|||
|
Xxx
Xxx Xxxxxxx
0000
X Xxxxx Xxxxxxx
Xxxxxxxxxx,
XX 00000-0000
|
[________
|
]
|
||
|
TOTAL
|
[________
|
]
|
||
| (A) |
Includes
(i) 59,907 shares of Common Stock currently outstanding and (ii)
23,805
Notes Shares and 8,946 Escrowed Shares when, and if, such shares
are
deemed to be Registrable Securities pursuant to the terms and conditions
of this Agreement.
|
C-1
SCHEDULE
D-1
Acquisition
Stockholders
|
Conversion
Shares
|
||||||||||
|
Name
and Address of Acquisition Stockholders
|
Share
Consideration
|
Notes
Shares
|
Escrowed
Shares
|
|||||||
|
Xxxxx
Xxxxx
0000
Xxxxx Xxxx XX
Xxxxxxx,
Xxxxxxx 00000
Fax:
Not available
|
2,761
|
1,097
|
421
|
|||||||
|
ECP
II Interfund L.P.
700
Building
000
Xxxxx Xxxx Xxxxx
Xxxxx,
Xxxxxxxxxxxx 00000-0000
Attention:
Xxxxxx Twitmeyer
Fax:
(000) 000-0000
|
11,578
|
4,600
|
1,721
|
|||||||
|
Endeavor
Capital Partners, LLC
00
Xxxxxxxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxx,
Xxxxxxxxxxx 00000
Fax:
(000) 000-0000
|
194,434
|
77,261
|
29,060
|
|||||||
|
EnerTech
Capital Holding Company LP
700
Building
000
Xxxxx Xxxx Xxxxx
Xxxxx,
Xxxxxxxxxxxx 00000-0000
Attention:
Xxxxxx Twitmeyer
Fax:
(000) 000-0000
|
2,436
|
967
|
363
|
|||||||
|
EnerTech
Capital Partners L.P.
700
Building
000
Xxxxx Xxxx Xxxxx
Xxxxx,
Xxxxxxxxxxxx 00000-0000
Attention:
Xxxxxx Twitmeyer
Fax:
(000) 000-0000
|
46,364
|
18,423
|
6,921
|
|||||||
|
EnerTech
Capital Partners II L.P.
700
Building
000
Xxxxx Xxxx Xxxxx
Xxxxx,
Xxxxxxxxxxxx 00000-0000
Attention:
Xxxxxx Twitmeyer
Fax:
(000) 000-0000
|
303,523
|
120,609
|
45,310
|
|||||||
|
Hydro-Quebec
Capitech, Inc.
0000
Xxxxxxxxxx Xxxxxx Xxxx
Xxxxxxxx
Xxxxxx, Xxxxxx
Attention:
Xxxx-Xxxxxx Xxxxxxxxx
|
229,123
|
91,046
|
34,241
|
|||||||
|
TOTAL
|
790,219
|
314,003
|
118,037
|
|||||||
D1-1
SCHEDULE
D-2
Acquisition
Stockholders
|
Registrable
Securities
|
||||||||||
|
Name
and Address of Acquisition Stockholders
|
Share
Consideration
|
Notes
Shares
|
Escrowed
Shares
|
|||||||
|
AEP
Communications, LLC
0
Xxxxxxxxx Xxxxx
Xxxxxxxx,
Xxxx 00000-0000
Attention:
Xxxxxxx X. Xxxxxx
|
528
|
209
|
76
|
|||||||
|
AEP
Investments, Inc.
0
Xxxxxxxxx Xxxxx
Xxxxxxxx,
Xxxx 00000-0000
Attention:
Xxxxxxx X. Xxxxxx
|
3,917
|
1,556
|
593
|
|||||||
|
Xxxx,
Xxxxxx X III
0000
Xxx Xxxxx Xxxx Xxxx
Xxx
Xxxx, Xxxxxxxxxxxx 00000
Fax:
(000) 000-0000
|
1,645
|
653
|
249
|
|||||||
|
C3
Communications, Inc.
0
Xxxxxxxxx Xxxxx
Xxxxxxxx,
Xxxx 00000-0000
Attention:
Xxxxxxx X. Xxxxxx
|
809
|
321
|
115
|
|||||||
|
Xxxxxxxx,
Xxxx
00000
0xx
Xxxxxx
Xxxxx
Xxxxxx, Xxx Xxxxxx 0000
Fax:
(000) 000-0000
|
11,902
|
4,729
|
1,778
|
|||||||
|
ECP
II Interfund, L.P.
700
Building
000
Xxxxx Xxxx Xxxxx
Xxxxx,
Xxxxxxxxxxxx 00000
Attention:
Xxxxxx Xxxxxxxx
|
2,633
|
1,046
|
000
|
|||||||
|
Xxxxxxxxxxx
xx Xxxxxx
000
Xxxxxxxx Xxxxxxxxx, Xxxxx 000
Xxxxxxx
Xxxx, Xxxxxxxxxx 00000
c/o
easEnergy, Inc.
(000)
000-0000
|
3,498
|
1,390
|
517
|
|||||||
D2-1
|
Registrable
Securities
|
||||||||||
|
Name
and Address of Acquisition Stockholders
|
Share
Consideration
|
Notes
Shares
|
Escrowed
Shares
|
|||||||
|
Xxxxx,
Xxxxx
0
Xxxxxx Xxxx
Xxxxxxxxxx,
Xxxxxxxx 00000
Fax:
(000) 000-0000
|
23,260
|
9,242
|
3,480
|
|||||||
|
Endeavor
Capital Partners, LLC
00
Xxxxxxxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxx,
Xxxxxxxxxxx 0000
Attention:
Xxxxxxx Xxxxx
Fax:
(000) 000-0000
|
57,329
|
22,780
|
8,565
|
|||||||
|
Endeavor
Capital Management, Inc.
00
Xxxxxxxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxx,
Xxxxxxxxxxx 0000
Attention:
Xxxxxxx Xxxxx
Fax:
(000) 000-0000
|
72
|
24
|
19
|
|||||||
|
EnerTech
Capital Holding Company LP
700
Building
000
Xxxxx Xxxx Xxxxx
Xxxxx,
Xxxxxxxxxxxx
Attention:
Xxxxxx Xxxxxxxx
|
752
|
298
|
114
|
|||||||
|
EnerTech
Capital Partners II L.P.
700
Building
000
Xxxxx Xxxx Xxxxx
Xxxxx,
Xxxxxxxxxxxx 00000
Attention:
Xxxxxx Xxxxxxxx
|
69,028
|
27,429
|
10,305
|
|||||||
|
EnerTech
Capital Partners L.P
700
Building
000
Xxxxx Xxxx Xxxxx
Xxxxx,
Xxxxxxxxxxxx 00000
Attention:
Xxxxxx Twitmeyer
|
76,521
|
30,407
|
11,433
|
|||||||
|
Xxxxx
& Xxxxx, Inc.
XXX
000
X.
X. Xxx 000
Xxxxxx
Xxxxx, Xxxxxxxxxxxx 00000
|
1,605
|
637
|
249
|
|||||||
|
Xxxx,
Xxxxxx
00
X. Xxxxxxxxxx Xxxx.
Xxxxxx,
Xxxxxxxx 00000
|
18,293
|
7,268
|
2,734
|
|||||||
D2-2
|
Registrable
Securities
|
||||||||||
|
Name
and Address of Acquisition Stockholders
|
Share
Consideration
|
Notes
Shares
|
Escrowed
Shares
|
|||||||
|
Hydro-Quebec
Capitech, Inc.
0000
Xxxxxxxxxx Xxxxxx Xxxx
Xxxxxxxx
Xxxxxx, Xxxxxx X0X 0X0
Attention:
Xxxx-Xxxxxx Xxxxxxxxx
Fax:
(000) 000-0000
|
72,306
|
28,731
|
10,802
|
|||||||
|
Katalyst,
Inc.
0000
Xxxxx Xxxx, Xxxxx 0000
Xxxxxxxxxxxx,
Xxxxxxxxxxxx 00000
Attention:
Xxxxxxxx Xxxxxx
Fax:
(000) 000-0000
|
1,792
|
711
|
268
|
|||||||
|
Xxxxx,
Xxxxx
0000
Xxxxx Xxxx XX
Xxxxxxx,
Xxxxxxx 00000
|
6,152
|
2,444
|
917
|
|||||||
|
Xxxxx,
Xxxxx
00
Xxxxxxxx Xxxxx
Xxxx
Xxxxxxx, Xxxxxxxx 00000
Fax:
(000) 000-0000
|
16,612
|
6,600
|
2,485
|
|||||||
|
Xxxxxx,
Xxxx
000
Xxxxxxxx Xxx
Xxxxxxx
Xxxxxx, Xxxxxxxxxxxx 00000
Fax:
(000) 000-0000
|
59,907
|
23,805
|
8,946
|
|||||||
|
Xxxxx,
Xxxx
00
Xxxxx Xxxxx
Xxxxxx,
Xxx Xxxx 00000
(212)
792-0899
|
1,147
|
455
|
172
|
|||||||
|
Reliant
Energy Ventures, Inc.
0000
Xxxx Xxxxxx
Xxxxxx
0000
Xxxxxxx,
Xxxxx 00000
Attention:
Xxxxxxx Xxxxxxxx
Fax:
(000) 000-0000
|
35,830
|
14,237
|
5,353
|
|||||||
|
Xxxxxxxx,
Xxxx
000
Xxxxxxxx Xxxxx
Xxxxxxxxxx,
Xxxxxxxx 00000
Fax:
(000) 000-0000
|
20,689
|
8,221
|
3,097
|
|||||||
D2-3
|
Registrable
Securities
|
||||||||||
|
Name
and Address of Acquisition Stockholders
|
Share
Consideration
|
Notes
Shares
|
Escrowed
Shares
|
|||||||
|
X.
Xxxxxxxx Consulting, Inc.
0000
Xxxxxxxxx xx xxx Xxxxxxxx, Xxxxx 000
Xxxxxxx,
Xxxxxxxxxxxx 00000
Fax:
(000) 000-0000
|
1,684
|
669
|
268
|
|||||||
|
Xxxxx
Xxxxxxxxx, Inc.
0000
Xxxxxx Xxxxx
Xxxxxxx,
XX 00000
Fax:
(000) 000-0000
|
1,415
|
562
|
210
|
|||||||
|
Xxxxx
Xxxxxxx
000
Xxxxx Xxxxx
Xxxxx
Xxxx, XX 00000
|
33,617
|
73,270
|
201,705
|
|||||||
|
Xxxx
Xxxxxxx
000
Xxxxx Xxxxx
Xxxxx
Xxxx, XX 00000
|
512
|
1,115
|
3,072
|
|||||||
|
TOTAL
|
523,455
|
268,809
|
277,923
|
|||||||
D2-4
EXHIBIT
A
FORM
OF LETTER AGREEMENT PURSUANT TO SECTION
3.10(c)
Comverge,
Inc.
000
Xxxxx
Xxxx Xxxxxx, Xxxxx 000
Xxxx
Xxxxxxx, XX 00000
Attention:
Chief Executive Officer
Ladies
& Gentlemen:
The
undersigned is the recipient of a bona fide pledge (the “Pledge”) of
shares
(the “Shares”)
of
common stock of Comverge, Inc. (“Comverge”)
pursuant to which [__________________], a holder of Registrable Securities
(as
defined in that certain Amended and Restated Registration Rights Agreement
of
Comverge, Inc., dated as of October 16, 2007, as amended (the “Agreement”))
is
the pledgor. Pursuant to the terms of Section 3.10(c) of the Agreement, the
undersigned hereby covenants and agrees with Comverge that in the event the
undersigned, or any affiliate of the undersigned, becomes a holder of the Shares
pursuant to the terms of the Pledge or the loan documents related to the Pledge,
the undersigned agrees that it shall be bound by the provisions of Section
3.10
of the Agreement, including any other provisions of the Agreement that are
necessary in order to provide for a full and complete interpretation of the
provisions set forth in Section 3.10, as if an original party to the
Agreement.
Any
notices related to this letter agreement shall be sent as indicated below the
undersigned’s signature. The foregoing being acknowledged and agreed to as of
the date first set forth above.
[________________________________]
By:
________________________________
Name:
______________________________
Title:
_______________________________
Contact
Information:
Address:_____________________________
____________________________________
____________________________________
Attention:____________________________
Facsimile:____________________________
EXHIBIT
B
FORM
OF LOCK-UP AGREEMENT
[Letterhead
of officer, director or major shareholder of Corporation]
Comverge,
Inc.
Public
Offering of Common Stock
[________
___], 2007
[___________________________]
[___________________________]
As
Representatives of the several Underwriters,
c/o
[___________________________]
[___________________________]
[___________________________]
Ladies
and Gentlemen:
This
letter is being delivered to you in connection with the proposed Underwriting
Agreement (the “Underwriting Agreement”), among Comverge, Inc., a Delaware
corporation (the “Company”), the selling stockholders party thereto and each of
you as representatives of a group of Underwriters named therein, relating to
an
underwritten public offering (the “Offering”) of Common Stock, par value $0.001
per share (the “Common Stock”), of the Company.
In
order
to induce you and the other Underwriters to enter into the Underwriting
Agreement, the undersigned will not, without the prior written consent of
[___________________________] and [___________________________], offer, sell,
contract to sell, pledge or otherwise dispose of (or enter into any transaction
which is designed to, or might reasonably be expected to, result in the
disposition (whether by actual disposition or effective economic disposition
due
to cash settlement or otherwise, other than the exercise of any stock option
granted as a direct or indirect result of any Company program, including but
not
limited to, any form of “cashless” exercise generally available for such grants,
provided that the net resulting shares from such exercise shall be subject
to
this agreement) by the undersigned or any affiliate of the undersigned or any
person in privity with the undersigned or any affiliate of the undersigned),
directly or indirectly, including the filing (or participation in the filing)
of
a registration statement with the Securities and Exchange Commission (other
than
a registration statement relating to employee benefit plans of the Company)
in
respect of, or establish or increase a put equivalent position or liquidate
or
decrease a call equivalent position within the meaning of Section 16 of the
Securities Exchange Act of 1934, as amended, and the rules and regulations
of
the Securities and Exchange Commission promulgated thereunder with respect
to,
any shares of capital stock of the Company or any securities convertible into,
or exercisable or exchangeable for, such capital stock (collectively, the
“Lock-up Securities”), or publicly announce an intention to effect any such
transaction, for a period of 90 days after the date of the Underwriting
Agreement, other than shares of Common Stock (1) transferred to the Underwriters
pursuant to the Offering and the Underwriting Agreement or (2) disposed of
as
bona fide gifts approved by [___________________________] and
[___________________________].
If
(i)
the Company issues an earnings release or material news, or a material event
relating to the Company occurs, during the last 17 days of the lock-up period,
or (ii) prior to the expiration of the lock-up period, the Company announces
that it will release earnings results during the 16-day period beginning on
the
last day of the lock-up period, the restrictions imposed by this agreement
shall
continue to apply until the expiration of the 18-day period beginning on the
issuance of the earnings release or the occurrence of the material news or
material event, unless [___________________________]
and [___________________________]
waive,
in
writing, such extension. The undersigned hereby acknowledges that the Company
has agreed in the Underwriting Agreement to provide written notice to the
undersigned of any event that would result in an extension of the lock-up period
and agrees that any such notice properly delivered will be deemed to have given
to, and received by, the undersigned.
The
undersigned acknowledges and agrees that this letter agreement shall be subject
to the provisions set forth in Section 3.10(j) of that certain Amended and
Restated Registration Rights Agreement by and among the undersigned, the Company
and the other parties named therein and Section [___] of the Underwriting
Agreement.
Notwithstanding
anything contained herein to the contrary, to the extent that (i) at any time
subsequent to the execution of this agreement the undersigned is not required
to
make any filings under Section 16 or Sections 13(d) or (g) of the Securities
Exchange Act of 1934 with respect to any shares of Common Stock, and (ii) the
undersigned has entered into or will enter into an agreement similar to this
agreement (a) in connection with a bona
fide issuer
directed share program relating to the underwritten public offering of Common
Stock (a “DSP Program”) with respect to any shares of Common Stock to be
purchased in such DSP Program (the “DSP Shares”) and (b) with any member of the
underwriting syndicate or any affiliate of such member who is acting as
administrator of such DSP Program, the terms of such other similar lock-up
agreement and not of this agreement shall govern the undersigned’s rights with
respect to such DSP Shares.
If
for
any reason the Company notifies you that it does not intend to proceed with
the
Offering, the Underwriting Agreement does not become effective or the
Underwriting Agreement shall be terminated prior to the Closing Date (as defined
in the Underwriting Agreement), the agreement set forth above shall likewise
be
terminated.
Yours
very truly,
[Signature
of officer, director or major stockholder]
[Name
and
address of officer, director or major stockholder]
EXHIBIT
C
ADOPTION
AGREEMENT
THIS
ADOPTION AGREEMENT (“Adoption
Agreement”)
is
executed by the undersigned (the “Transferee”)
pursuant to the terms of that certain Amended and Restated Registration Rights
Agreement dated as of October 16, 2007 (the “Agreement”)
by and
among Comverge, Inc. (the “Company”)
and
certain of its stockholders. Capitalized terms used but not defined herein
shall
have the respective meanings ascribed to such terms in the Agreement. By the
execution of this Adoption Agreement, the Transferee agrees as
follows:
1. Acknowledgement.
Transferee acknowledges that Transferee is acquiring certain shares of the
capital stock of the Company (the “Stock”),
subject to the terms and conditions of the Agreement.
2. Agreement.
As
partial consideration for such transfer, Transferee (i) agrees that the
Stock acquired by Transferee shall be bound by and subject to the terms of
the
Agreement, and (ii) hereby adopts the Agreement with the same force and effect
as if Transferee were originally a party thereto.
3. Notice.
Any
notice required or permitted by the Agreement shall be given to Transferee
at
the address listed beside Transferee’s signature below.
4. Joinder.
The
spouse of the undersigned Transferee, if applicable, executes this Adoption
Agreement to acknowledge its fairness and that it is in such spouse’s best
interests and to bind to the terms of the Agreement such spouse’s community
interest, if any, in the Stock.
EXECUTED
AND DATED this ______ day of _________________, ____.
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TRANSFEREE
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By:
__________________________________
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Name:
________________________________
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Title:
_________________________________
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Address:
______________________________
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__________________________
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Fax:
__________________________________
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Spouse:
(if applicable):
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Name:
________________________________
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ACKNOWLEDGED
AND ACCEPTED:
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COMVERGE,
INC.
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By:
______________________________
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Name:
____________________________
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