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Proc-Type: 2001,MIC-CLEAR
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SECURITIES AND EXCHANGE COMMISSION SCHEDULE 13D UNDER THE SECURITIES EXCHANGE ACT OF 1934 (Amendment No. )* Evergreen Solar, Inc. Common Stock, $0.01 par value (Title of Class of Securities) 30033R 10 8 Ginette Depelteau May 15, 2003 If the filing person has previously filed a statement on Schedule 13G to report the acquisition that is the subject of this Schedule 13D, and is filing this schedule because of Rule 240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check the following box. [ ] Note: Schedules filed in paper format shall include a signed original and five copies of the schedule, including all exhibits. See Rule 240.13d-7 for other parties to whom copies are to be sent. * The remainder of this cover page shall be filled out for a reporting person's initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter disclosures provided in a prior cover page. The information required on the remainder of this cover page shall not be deemed to be "filed" for the purpose of Section 18 of the Securities Exchange Act of 1934 ("Act") or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes). (1) Including 401,785 Shares owned by CDP Capital-Technology Ventures U.S Fund 2002 L.P. Caisse de dépôt et placement du Québec is the sole stockholder of Capital technology CDPQ inc. which is the sole stockholder of Management US Fund 2002 Inc. which is the General Partner of CDP Capital-Technology Ventures U.S Fund 2002 L.P Item 1 - Security and Issuer This Statement on Schedule 13D relates to the common stock, par value $.01 per share (the "Common Stock"), of Evergreen Solar, Inc. (the "Issuer"), having its principal office at 259 Cedar Hill Street, Marlboro, MA 01752. Item 2 - Identity and Background This statement is filed by the Caisse de dépôt et placement du Québec ("Caisse"). Caisse is a legal person without share capital and a mandatary of Province de Québec, created by a special act of the Legislature of the Province de Québec. The principal business of Caisse is to receive on deposit and manage funds deposited by agencies and instrumentalities of the Province de Québec. The address of Caisse's principal business and principal office is Each of the directors and executive officers named in Exhibit A is a Canadian citizen, except Mr. John T. Wall who is an American citizen. Neither Caisse nor any of the individuals listed in Exhibit A has, during the last five years, been convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors) or was or is subject to a judgment, decree or final order, enjoining future violations of, or prohibiting or mandating activities subject to, United States federal or state securities laws or finding any violation with respect to such laws as a result of a civil proceeding of a judicial or administrative body of competent jurisdiction. Item 3 - Source and Amount of Funds or Other Consideration Caisse entered into a Stock and Warrant Purchase Agreement, dated March 21, 2003 (the "Purchase Agreement," a copy of which is attached hereto as Exhibit 1 and incorporated by reference herein), with the Issuer and certain other investors whereby the Issuer agreed to sell (i) 26,227,668 shares of its Series A Convertible Preferred Stock, par value $0.01 per share (the "Preferred Stock") for an aggregate purchase price of $29,374,988.16 to certain investors, including Caisse. and (ii) and a warrant to purchase up to 2,400,000 shares of Common Stock at an exercise price equal to the purchase price of the Preferred Stock plus $2.25 per share (the "Warrant") to Beacon Power Corporation ("Beacon") for a price of $100,000. The sale of the Preferred Stock pursuant to the Purchase Agreement are referred to as the "Financing." The Financing was subject to stockholder approval and certain other closing conditions. At the annual meeting of the stockholders of the Issuer on May 15, 2003, the stockholders voted in favor of the following four proposals: (1) to elect three directors to Class III of the Issuer's board of directors, each to serve for a term of three years and until their successors are elected and qualified, or until their earlier resignation or removal, (2) to approve the issuance of up to 43,200,000 shares of Preferred Stock, the issuance of the Warrant and the issuance of shares of Common Stock upon the conversion of the shares of Preferred Stock and the exercise of the Warrant pursuant to the Purchase Agreement, (3) to approve the amendment to Article Fourth of the Issuer's Third Amended and Restated Certificate of Incorporation to increase the number of authorized shares of Common Stock from 30,000,000 to up to 95,000,000, to increase the number of authorized shares of preferred stock from 1,000,000 to up to 46,000,000, of which up to 45,000,000 shares shall be designated Series A Con
vertible Preferred Stock, and to increase the total number of authorized shares of the Issuer's capital stock from 31,000,000 to up to 141,000,000 and (4) to approve the increase in the number of shares available for grant under the Issuer's 2000 Stock Option and Incentive Plan from 1,650,000 to 7,650,000. Upon the receipt of shareholder approval and the satisfaction or waiver of the other closing conditions, the Issuer, Caisse and the other investors consummated the Financing. Caisse purchased 2,678,570 shares of Preferred Stock at a purchase price of $1.12 per share, for an aggregate purchase price of $3,000,000 (the "Shares"). The funds for the Shares acquired and beneficially owned by the Caisse were obtained from the funds on deposit at the Caisse. Item 4 - Purpose of Transaction Except as disclosed herein, Caisse has acquired the shares of Preferred Stock for investment purposes. A copy of the Certificate of the Powers, Designations, Preferences and Rights of the Series A Convertible Preferred Stock (the "Certificate of Designations") is attached hereto as Exhibit 2 and incorporated herein by reference and a copy of the Registration Rights Agreement (the "Registration Rights Agreement") is attached hereto as Exhibit 3 and incorporated herein by reference. Set forth below is a summary of the material terms of the Purchase Agreement, Certificate of Designations and the Registration Rights Agreement. The following summary is qualified in its entirety by reference to the Purchase Agreement, Certificate of Designations and the Registration Rights Agreement. TERMS OF THE PURCHASE AGREEMENT. BOARD REPRESENTATION. Pursuant to the terms of the Purchase Agreement, certain of the investors, including Caisse, each were granted the right to designate a representative to be nominated by the Issuer to serve as a director of the Company (collectively, the "Investor Designees"), as long as such investor continues to beneficially own not less than 5% of the shares of Common Stock outstanding, including shares of Preferred Stock on an as-converted basis. The Investor Designee designated by Caisse is Luc Charron. As a condition to closing of the Financing and subject to stockholder approval, Richard G. Chleboski and Mason Willrich resigned as directors of the Issuer and the Investor Designees were appointed as members of the Board of Directors of the Issuer. TERMS OF THE PREFERRED STOCK RANK. The Preferred Stock will rank senior to the Common Stock, the Issuer's shares of undesignated preferred stock and each other class or series of capital stock of the Issuer now or hereafter established that does not expressly rank on a parity with the Preferred Stock with respect to dividend rights and rights upon a change of control or liquidation. DIVIDEND RIGHTS. Shares of Preferred Stock will pay a compounding dividend of 10% per annum, to be paid quarterly, in cash, or, at the Issuer's election, to be added to the liquidation preference of the Preferred Stock on a quarterly basis, which would result in an increase in the number of shares of Common Stock issuable upon conversion of the Preferred Stock. The Issuer will be required to pay dividends on the Preferred Stock before any dividend is paid on any other class of the Issuer's equity securities. Additionally, each share of Preferred Stock will entitle the holder thereof to receive any and all dividends or distributions to be paid to holders of shares of Common Stock as if such share of Preferred Stock was converted into that number of shares of Common Stock into which it is convertible at such time. RIGHTS UPON LIQUIDATION. Upon the voluntary or involuntary liquidation of the Issuer under applicable bankruptcy or reorganization legislation, or the dissolution or winding up of the Issuer, the holders of shares of Preferred Stock will be paid in cash for each share of Preferred Stock held thereby, out of the Issuer's assets legally available for distribution to its stockholders, before any payment or distribution is made to the Common Stock or any other class or series of the Issuer's capital stock ranking junior to the Preferred Stock, an amount equal to the greater of (i) the sum of (x) the Accreted Value (as defined below) of such share of Preferred Stock as of such date, plus (y) all dividends accrued since the previous Compounding Date (as defined below), or (ii) the aggregate amount then payable with respect to the number of shares of Common Stock into which such share of Preferred Stock is convertible immediately prior to such liquidation event. If the assets available for distr
ibution to the holders of shares of Preferred Stock are insufficient to permit payment in full to the holders thereof of the amount described above, then all of the assets available for distribution to holders of shares of Preferred Stock will be distributed among and paid to those holders ratably in proportion to the amounts that would be payable to those holders if such assets were sufficient to permit payment in full. "Accreted Value" means, as of any date, with respect to each share of Preferred Stock, $1.12, which is the purchase price per share paid by the investors for the Preferred Stock (subject to adjustment for any stock splits, stock dividends, combinations and other similar structural events), plusthe amount of dividends that have accrued and compounded and have been added thereto to such date pursuant to the terms of the Certificate of Designations. "Compounding Date" means March 31, June 30, September 30 or December 31 of each year, each of which is a date upon which holders of shares of Preferred Stock are entitled to receive cumulative dividends quarterly in arrears. In the event of the merger, consolidation or sale of all or substantially all of the Issuer's assets or in the event of certain other change of control transactions, the holders of shares of Preferred Stock will be paid for each share of Preferred Stock held thereby, before any payment or distribution is made to the Common Stock or any other class or series of the Issuer's capital stock ranking junior to the Preferred Stock, an amount equal to the greater of (i) the sum of the Accreted Value of such share of Preferred Stock as of such date, plus all dividends accrued since the previous Compounding Date, or (ii) the aggregate amount payable in the applicable change of control transaction with respect to the number of shares of Common Stock into which such share of Preferred Stock is convertible immediately prior to the consummation of the change of control transaction. If the assets available for distribution to the holders of shares of Preferred Stock are insufficient to permit payment in
full to the holders thereof of the amount described above, then all of the assets available for distribution to holders of shares of Preferred Stock will be distributed among and paid to those holders ratably in proportion to the amounts that would be payable to those holders if such assets were sufficient to permit payment in full. Any payment due upon a change of control transaction will be paid in the form of consideration paid in such change of control transaction on the closing date of the transaction. After payment in full of the above described payments, the holders of Preferred Stock will not be entitled to any further participation in any distribution of the Issuer's assets and the Issuer's remaining assets will be distributed to the holders of the Issuer's other classes and series of capital stock. CONVERSION. The holders of shares of Preferred Stock are entitled to convert their shares into Common Stock at any time. The number of shares of Common Stock issuable upon the conversion of shares of Preferred Stock is equal to the product of (x) the number of shares of Preferred Stock to be converted and (y) the quotient obtained by dividing (i) the sum of the Accreted Value, plus all dividends accrued since the previous Compounding Date, by (ii) the then applicable conversion price per share of the Preferred Stock, which conversion price is initially $1.12, which is the purchase price per share paid by the investors for the Preferred Stock, subject to adjustment as described below. Initially, each share of Preferred Stock is convertible into one share of Common Stock. The applicable conversion price is subject to adjustment for stock splits, stock dividends, combinations, and other similar structural events.Additionally, the Preferred Stock contains anti-dilution protection subject to exceptions as set forth in the Certificate of Designations, with respect to the issuance of the Issuer's capital stock at a purchase price per share which is below the conversion price of the Preferred Stock then in effect, distributions by the Issuer to all holders of Common Stock or any similar dilutive actions for which the Issuer's Board of Directors has determined it would be equitable to reduce the conversion price. If, on any date after the second anniversary of the closing of the Financing, the average market price for a share of Common Stock for the trailing 180 consecutive trading days is at least $7.50 (subject to adjustment for stock splits, stock dividends, combinations, and other similar structural events), then the Issuer may elect, at its option, to convert all, but not less than all, of the outstanding shares of Preferred Stock into the number of shares of Common Stock as is equal to the product of (x) the number of shares of Preferred Stock to be converted and (y) the quotient obtained by dividing (i) the sum of the Accreted Value, plus all dividends accrued since the previous Compounding Date, by (ii) the then applicable conversion price. The conversion of shares of Preferred Stock into shares of Common Stock will result in substantial dilution to the interests of other holders of Common Stock. VOTING RIGHTS. Holders of Preferred Stock will have the right to vote on all matters that the holders of Common Stock vote on, voting together with the holders of Common Stock as a single class. Each share of Preferred Stock will be entitled to the number of votes as is equal to the number of shares of Common Stock into which it is convertible, without any adjustment for anti-dilution provisions applicable to the Preferred Stock other than adjustments for stock splits, stock dividends, combinations and other similar structural events, and subject to a maximum vote per share equal to 0.7417. The maximum vote per share was determined by dividing (i) $1.12, which is the purchase price per share paid by the investors for the Preferred Stock, by (ii) $1.51, which is the 5-trading day average closing price of Common Stock ending on the trading day prior to the closing of the Financing. For so long as 5,350,000 shares of Preferred Stock (subject to adjustment for stock splits, stock dividends, combinations and other similar structural events) remain outstanding, the approval of holders of 66 2/3% of the outstanding Preferred Stock, voting as a separate class, will be required for the following events: (1) any authorization or issuance of any shares of preferred stock ranking senior to or on a parity with the Preferred Stock; (2) any increase or decrease in the total number of authorized shares of Preferred Stock; (3) any amendment or modification of the Issuer's certificate of incorporation (including the Certificate of Designations) or the Issuer's bylaws that would adversely affect the rights, preferences, powers (including, without limitation, voting powers) and privileges of the Preferred Stock; (4) any incurrence of any form of indebtedness in excess of $1,000,000 individually or $3,000,000 in the aggregate, except for the Issuer's establishment of a working capital
line of credit of up to $5,000,000; (5) the redemption of any shares of the Issuer's capital stock which do not expressly rank on a parity with or senior to the Preferred Stock, other than the repurchase of unvested options or restricted stock from the Issuer's employees, officers, directors or consultants upon termination of service; (6) any declaration, distribution or payments of any dividend or other distribution on any shares of stock which does not expressly rank on a parity with or senior to the Preferred Stock; and (7) any modification of any of the above voting rights. PREEMPTIVE RIGHTS. For so long as 5,350,000 shares of Preferred Stock (subject to adjustment for stock splits, stock dividends, combinations and other similar structural events) remain outstanding, Caisse and the other investors will have preemptive rights for any private placement of equity by the Issuer. These preemptive rights will not apply with respect to: (1) the exercise of any options to purchase shares of Common Stock outstanding as of the closing of the Financing; (2) the issuance or exercise of any options approved by the Issuer's board of directors that are issued after the closing of the Financing to the Issuer's employees, consultants or strategic partners; (3) the issuance of any shares of the Issuer's capital stock issued in any acquisition or merger transaction approved by the Issuer's board of directors; (4) any merger, consolidation or other business combination (other than a change of control transaction) or capital reorganization or reclassification; and (5) shares of
the Issuer's capital stock issued in a registered public offering. REGISTRATION RIGHTS AGREEMENT The Issuer entered into the Registration Rights Agreement with Caisse and the other investors at the closing of the Financing, pursuant to which the Issuer agreed to file a registration statement with the SEC covering the resale of shares of Common Stock issuable upon the conversion of the Preferred Stock not later than thirty (30) days after the closing of the Financing. The Issuer has agreed to use its reasonable best efforts to have the registration statement declared effective as soon as practicable thereafter, but not later than 75 days after the filing date of the registration statement and to keep the registration statement effective at all times until the earlier of (1) the second anniversary of its effective date, (2) the date on which Caisse and the other investors may sell all of the Common Stock covered by the registration statement without restriction pursuant to Rule 144(k) promulgated under the Securities Act of 1933, and (3) the date on which all shares of Common Stock cove
red by the registration statement have been sold. At any time the resale registration statement described in the preceding paragraph is not effective, any investor or group of investors holding at least 10% of the securities held by the investors in the aggregate that are subject to the registration rights agreement may require the Issuer to use its best efforts to register the shares of Common Stock issuable upon conversion of the Preferred Stock under the Securities Act, as long as the reasonably anticipated aggregate price to the public of the securities to be included in the offering is more than $4,000,000. The Issuer is obligated to effect no more than three such demand registrations for the investors. At any time the resale registration statement is not effective, any party to the registration rights agreement may request that the Issuer register all or a portion of the securities held by it under the Securities Act on Form S-3, provided that the Issuer is entitled to use Form S-3 and that the reasonably anticipated aggregate price to the public of the securities requested for inclusion in such S-3 registration statement shall equal or exceed $1,000,000. In the event that any registration so requested is made in connection with an underwritten public offering, the underwriters have the right, subject to certain conditions, to limit the number of shares included in the registration. Additionally, at any time the resale registration statement is not effective, and the Issuer proposes to file any other registration statement, the investors who are parties to the Registration Rights Agreement will have the right to receive notice of and to join any proposed registration. If a proposed registration is made pursuant to an underwritten offering, the Issuer will not be required to include any securities in the offering unless the investor or investors requesting registration accept the terms of the offering as agreed upon between the Issuer, any other stockholders who are registering shares under the registration statement and the underwriters, and the underwriters have the right, subject to certain conditions, to limit the number of shares included in the registration. In general, all fees, costs and expenses of a registration will be borne by the Issuer. The Issuer has agreed to indemnify the holders of registration rights against, and provide contribution with respect to, certain liabilities relating to any registration in which any shares of these holders are sold under the Securities Act. ADDITIONAL DISCLOSURE Caisse may from time to time acquire additional shares of Preferred Stock, Common Stock or other securities of the Issuer in the open market or in privately negotiated transactions, subject to availability at prices deemed favorable, the Issuer's business or financial condition and other factors and conditions Caisse deem appropriate. Alternatively, Caisse may sell all or a portion of the Preferred Stock, Common Stock or other securities of the Issuer in privately negotiated transactions, in the open market pursuant to the exercise of certain registration rights granted pursuant to the Registration Rights Agreement as described above or through an exemption from registration in compliance with applicable law, in each case subject to the factors and conditions referred to above and to the terms of the Purchase Agreement, Certificate of Designations and the Registration Rights Agreement, as the case may be. In addition, Caisse may formulate other purposes, plans or proposals regarding the Is
suer or any of its securities to the extent deemed advisable in light of general investment and trading policies, market conditions or other factors. Except as otherwise set forth in this Schedule 13D, Caisse or any individual otherwise identified in Item 2 has no present plans or proposals which would relate to or would result in: (a) the acquisition by any person of additional securities of the Issuer, or the disposition of securities of the Issuer; (b) an extraordinary corporate transaction, such as a merger, reorganization or liquidation, involving the Issuer or any of its subsidiaries; (c) a sale or transfer of a material amount of assets of the Issuer or any of its subsidiaries; (d) any change in the present board of directors or management of the Issuer, including any plans or proposals to change the number or term of directors or to fill any existing vacancies on the board; (e) any material change in the present capitalization or dividend policy of the Issuer; (f) any other material change in the Issuer's business or corporate structure; (g) changes in the Issuer's charter, bylaws or instruments corresponding thereto or other ac
tions which may impede the acquisition of control of the Issuer by any person; (h) causing a class of securities of the Issuer to be delisted from a national securities exchange or to cease to be authorized to be quoted in an inter-dealer quotation system of a registered national securities association; (i) a class of equity securities of the Issuer becoming eligible for termination of registration pursuant to Section 12(g)(4) of the Securities Exchange Act of 1934; or (j) any action similar to any of those enumerated above. Item 5 - Interest in Securities of Issuer (a) Caisse may be deemed to
Washington, D.C. 20549
(Name of Issuer)
(CUSIP Number)
Caisse de dépôt et placement du Québec
1000 place Jean-Paul Riopelle, Montreal (Quebec), H2Z 2B3
Tel.: (514) 847-5901
(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)
(Date of Event which Requires Filing of this Statement)
I.R.S. Identification nos. of above persons (entities only)
Caisse de dépôt et placement du Québec
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(a) [ ]
(b) [ ]
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WC
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Quebec, Canada
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2,678,570 (1)----------------------------------------------------------------------------------------------------------
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2,678,570 (1)-------------------------------------------------------------------------------------------------------------
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2,678,570 (1)----------------------------------------------------------------------------------------------------------
(See Instructions) [ ]
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19.0% (1)
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CO
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1000 place Jean-Paul Riopelle, Montreal (Quebec), H2Z 2B3
The names of the directors and executive officers of Caisse, their business addresses, their present principal occupation or employment, and the name, principal business and address of any corporation or other organization in which such employment is conducted other than Caisse are set forth in Exhibit A, attached hereto.
Caisse is the sole stockholder of Capital technology CDPQ inc. which is the sole stockholder of Management US Fund 2002 Inc. which is the General Partner of CDP. Caisse disclaims beneficial ownership of the reported securities except to the extent of its pecuniary interest therein.
(b) CDP may be deemed to beneficially own 3.4% or 401,785 shares of the Issuer?s Common Stock, all of which are shares of Preferred stock initially convertible into the same number of shares of Common Stock. CDP has shared power to vote or direct the vote of, and to dispose of or direct the disposition of, all of the shares that may be deemed to be beneficially owned by it.
CDP is a limited partnership organized under the laws of Quebec. The principal business of CDP is to directly or indirectly invest in, hold, sell and otherwise deal in securities for its own account.
The address of CDP?s principal business and principal office is
1000 place Jean-Paul Riopelle, Montreal (Quebec), H2Z 2B3
The names of the general partners of CDP, their business addresses, their present principal occupation or employment, and the name, principal business and address of any corporation or other organization in which such employment is conducted other than Caisse are set forth in Exhibit B, attached hereto.
Each of the general partners named in Exhibit B is a Canadian citizen.
Neither CDP nor any of the individuals listed in Exhibit B has, during the last five years, been convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors) or was or is subject to a judgment, decree or final order, enjoining future violations of, or prohibiting or mandating activities subject to, United States federal or state securities laws or finding any violation with respect to such laws as a result of a civil proceeding of a judicial or administrative body of competent jurisdiction.
(c) Other than as described herein, neither Caisse nor, to the best knowledge of Caisse, any person identified in Item 2 hereof, has effected any transaction in shares of Common Stock during the past 60 days.
(d) Caisse knows of no other person who has the right to receive or the power to direct the receipt of dividends from, or the proceeds from the sale of the securities held by Caisse
(e) Not applicable.
Item 6 - Contracts, Arrangements, Understandings or Relationships with Respect to Securities of the Issuer
As described in Items 3 and 4 above, on March 21, 2003, the Issuer, Caisse and certain other investors entered into the Purchase Agreement pursuant to which the investors agreed to purchase an aggregate of 26,227,668 shares of Preferred Stock, having the rights, privileges and preferences set forth in the Certificate of Designations. The Issuer, Caisse and the other investors entered into the Registration Rights Agreement on May 15, 2003, pursuant to which the Issuer has an obligation to prepare and file with the Commission within 30 days following May 15, 2003 a registration statement on Form S-3 or successor form registering the shares of Common Stock issuable upon the conversion of the Preferred Stock and the exercise of the Warrant (subject to certain limitations). The Issuer is required to use its reasonable best efforts to cause such registration statement to become effective no later than 75 days after the filing date of such registration statement. Additionally, Caisse and the oth er investors have certain demand registration rights, "piggy-back" registration rights and Form S-3 registration rights that are described more fully in the Registration Rights Agreement. The foregoing summaries of the Purchase Agreement, the Certificate of Designations and the Registration Rights Agreement are qualified in their entirety by reference to Exhibits 1, 2 and 3.
Item 7 - Material to be Filed as Exhibits
Exhibit A: List of Executive Officers and Directors of Caisse
Exhibit B: List of Executive Officers and Directors of Management U.S. Fund Inc.
Exhibit 1*: Stock and Warrant Purchase Agreement, dated March 21, 2003 among Evergreen Solar, Inc. and the parties named therein.
* Set forth as Exhibit 10.1 on Evergreen Solar Inc.'s Form 8-K filed on March 21, 2003
and incorporated by reference herein.
Exhibit 2: Certificate of the Powers, Designations, Preferences and Rights of the Series A Convertible Preferred Stock, dated May 15, 2003.
Exhibit 3: Registration Rights Agreement, dated May 15, 2003 among Evergreen Solar, Inc. and the parties named therein.
.
.
SIGNATURE
After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct.
CAISSE DE DÉPÔT ET PLACEMENT DU QUÉBEC
By: /s/ Ginette Depelteau
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Ginette Depelteau, Vice-President and Corporate Secretary
Name / Title
EXHIBIT A
LIST OF EXECUTIVE OFFICERS AND DIRECTORS
OF Caisse de dépôt et placement du Québec
DIRECTORS |
BUSINESS ADDRESS |
PRINCIPAL |
Henri-Paul Rousseau |
Caisse de dépôt et placement du Québec |
Chairman and Chief |
Guy Morneau |
Régie des rentes du Québec |
Chairman of the Board and President |
Jean-Claude Bachand |
Fraser Milner Casgrain |
Lawyer |
Bernard Bonin |
745, Hot Springs Way |
|
Claudette Carbonneau |
Confédération des syndicats nationaux |
President |
Alban D'Amours |
Mouvement des caisses Desjardins |
President |
Sylvie Dillard |
Fonds québécois de la recherche sur la nature et les technologies |
Member and President of the board and Chief Executive Officer |
Yves Filion |
Hydro-Québec Distribution |
President |
Gilles Godbout |
Ministère des Finances |
Deputy Minister, Finance, Economy and Research |
Thomas O. Hecht |
Technologies IBEX Inc. |
Chairman Emeritus |
Henri Massé |
Fédération des travailleurs et travailleuses du Québec |
President |
Nicole Trudeau |
Commission municipale du Québec |
Vice-President |
Duc Vu |
Commission administrative des régimes de retraite et d'assurances |
President |
John T. Wall |
6601, Radnor Road |
OFFICERS |
BUSINESS ADDRESS |
PRINCIPAL |
Henri-Paul Rousseau |
Caisse de dépôt et placement du Québec |
Chairman and Chief |
Fernand Perreault |
Same |
President, CDP Capital - |
Richard Guay |
Same |
Executive Vice-President, |
Ghislain Parent |
Same |
Executive Vice-President, |
François Geoffrion |
Same |
Executive Vice-President, |
Ginette Depelteau |
Same |
Vice-President and Corporate Secretary |
EXHIBIT B
LIST OF EXECUTIVE OFFICERS AND DIRECTORS
OF MANAGEMENT U.S. FUND 2002 INC.
DIRECTOR |
BUSINESS ADDRESS |
PRINCIPAL OCCUPATION |
Denis Dionne |
Management U.S. Fund 2002 Inc. |
President |
OFFICERS |
BUSINESS ADDRESS |
PRINCIPAL OCCUPATION |
Denis Dionne |
Capital Technologies CDPQ Inc. |
President |
Anne-Geneviève Béïque |
Same |
Assistant Corporate Secretary |
EXECUTION COPY
EXHIBIT 2
EVERGREEN SOLAR, INC.
CERTIFICATE OF THE POWERS, DESIGNATIONS,
PREFERENCES AND RIGHTS OF THE SERIES A CONVERTIBLE PREFERRED STOCK,
PAR VALUE $0.01 PER SHARE
Pursuant to Section 151 of the Delaware General Corporation Law
Evergreen Solar, Inc., a Delaware corporation (the "CORPORATION"), does hereby certify that the following resolution, creating a series of 26,227,668 shares of Preferred Stock, was duly adopted by the Board of Directors on May 15, 2003.
RESOLVED, that pursuant to the authority granted to and vested in the Board of Directors in accordance with the provisions of the Certificate of Incorporation of the Corporation, there shall be created a series of Preferred Stock, $0.01 par value, which series shall have the following designations and number thereof, powers, preferences, rights, qualifications, limitations and restrictions:
1. DESIGNATION AND NUMBER OF SHARES. There shall be hereby created and established a series of Preferred Stock designated as "Series A Convertible Preferred Stock" (the "SERIES A PREFERRED STOCK"). The authorized number of shares of Series A Preferred Stock shall be 26,227,668. Capitalized terms used herein and not otherwise defined shall have the meanings set forth in Section 10 below.
2. RANK. The Series A Preferred Stock shall with respect to (i) the payment of the Liquidation Payment in the event of Liquidation, (ii) the payment of the Sale Payment in the event of a Change of Control and (iii) the payment of dividends rank senior to (x) all classes of common stock of the Corporation (including, without limitation, the Common Stock, par value $0.01 per share, of the Corporation (the "COMMON STOCK")), (y) all classes of preferred stock of the Corporation and (z) each other class or series of Capital Stock of the Corporation hereafter created which does not expressly rank PARI PASSU with or senior to the Series A Preferred Stock (clauses (x), (y) and (z), together, the "JUNIOR STOCK").
3. DIVIDENDS.
(a) DIVIDEND RATE. The holders of shares of Series A Preferred Stock shall receive cumulative dividends in cash (except as set forth below) quarterly in arrears on March 31, June 30, September 30 and December 31 of each year (each such date, the "COMPOUNDING DATE") at an annual rate equal to ten percent (10%) of the Accreted Value per share of the Series A Preferred Stock, calculated on the basis of a 2 360-day year, consisting of twelve (12) thirty (30)-day months, which shall accrue on a daily basis from the date of issuance thereof, whether or not declared by the Board of Directors. Dividends payable on shares of Series A Preferred Stock shall be cumulative; therefore, if a full or partial dividend on the shares of Series A Preferred Stock with respect to any quarter is not declared by the Board of Directors, the Corporation shall remain obligated to pay a full dividend with respect to that quarter; PROVIDED, HOWEVER, that any unpaid dividends shall not bear interest. At the electio n of the Corporation, any accrued and unpaid dividends may be paid in cash at any time. At the election of the Corporation, each dividend on the Series A Preferred Stock may be added to the Accreted Value.
4. LIQUIDATION AND CHANGE OF CONTROL.
(a) PRIORITY PAYMENT. Upon the occurrence of a Liquidation, the holders of shares of Series A Preferred Stock shall be paid in cash for each share of Series A Preferred Stock held thereby, out of, but only to the extent of, the assets of the Corporation legally available for distribution to its stockholders, before any payment or distribution is made to any Junior Stock, an amount equal to the greater of (i) the sum of (x) the Accreted Value of such share of Series A Preferred Stock on the date of such Liquidation PLUS (y) all dividends accrued at the rate and in the manner specified in Section 3(a) since the previous Compounding Date to the date of Liquidation or (ii) the aggregate amount payable in such Liquidation with respect to the number of shares of Common Stock into which such share of Series A Preferred Stock is convertible immediately prior to such Liquidation (the greater of clause (i) or clause (ii), the "LIQUIDATION PAYMENT"). If the assets of the Corporation available for distribution to the holders of shares of Series A Preferred Stock shall be insufficient to permit payment in full to such holders of the aggregate Liquidation Payment, then all of the assets available for distribution to holders of shares of Series A Preferred Stock shall be distributed among and paid to such holders ratably in proportion to the amounts that would be payable to such holders if such assets were sufficient to permit payment in full.
(c) NO ADDITIONAL PAYMENT. After the holders of all shares of Series A Preferred Stock shall have been paid in full the amounts to which they are entitled in Section 4(a) or Section 4(b), as the case may be, the holders of shares of Series A Preferred Stock shall not be entitled to any further participation in any distribution of assets of the Corporation and the remaining assets of the Corporation shall be distributed to the holders of Junior Stock.
(d) VALUE OF SECURITIES. Any securities of the surviving Person to be delivered to the holders of shares of Series A Preferred Stock pursuant to Section 4(b) and Section 4(c) shall be valued as follows:
(e) NOTICE. Written notice of a Liquidation or a Change of Control stating a payment or payments and the place where such payment or payments shall be payable, shall be delivered in person, mailed by certified mail, return receipt requested, mailed by overnight mail or sent by telecopier, not less than ten (10) days prior to the earliest payment date stated therein, to the holders of record of shares of Series A Preferred Stock, such notice to be addressed to each such holder at its address as shown by the records of the Corporation.
(e) (i) DIVIDEND, SUBDIVISION, COMBINATION OR RECLASSIFICATION OF COMMON STOCK. In the event that the Corporation shall, at any time or from time to time prior to conversion of shares of Series A Preferred Stock, (w) pay a dividend or make a distribution on the outstanding shares of Common Stock payable in Common Stock, (x) subdivide the outstanding shares of Common Stock into a larger 9 number of shares, (y) combine the outstanding shares of Common Stock into a smaller number of shares or (z) issue any shares of its Capital Stock in a reclassification of the Common Stock (other than any such event for which an adjustment is made pursuant to another clause of this Section 7(e)), then, and in each such case, the Conversion Price in effect immediately prior to such event shall be adjusted (and any other appropriate actions shall be taken by the Corporation) so that the holder of any share of Series A Preferred Stock thereafter surrendered for conversion shall be entitled to receive the n umber of shares of Common Stock or other securities of the Corporation that such holder would have owned or would have been entitled to receive upon or by reason of any of the events described above, had such share of Series A Preferred Stock been converted immediately prior to the occurrence of such event. An adjustment made pursuant to this Section 7(e)(i) shall become effective retroactively (x) in the case of any such dividend or distribution, to a date immediately following the close of business on the record date for the determination of holders of Common Stock entitled to receive such dividend or distribution or (y) in the case of any such subdivision, combination or reclassification, to the close of business on the day upon which such corporate action becomes effective.
(f) ABANDONMENT. If the Corporation shall take a record of the holders of its Common Stock for the purpose of entitling them to receive a dividend or other distribution, and shall thereafter and before the distribution to stockholders thereof legally abandon its plan to pay or deliver such dividend or distribution, then no adjustment in the Conversion Price shall be required by reason of the taking of such record.
(j) RESERVATION OF COMMON STOCK. The Corporation shall at all times reserve and keep available for issuance upon the conversion of shares of Series A Preferred Stock, such number of its authorized but unissued shares of Common Stock as will from time to time be sufficient to permit the conversion of all outstanding shares of Series A Preferred Stock, and shall take all action to increase the authorized number of 13 shares of Common Stock if at any time there shall be insufficient authorized but unissued shares of Common Stock to permit such reservation or to permit the conversion of all outstanding shares of Series A Preferred Stock; PROVIDED, that the holders of shares of Series A Preferred Stock shall vote such shares in favor of any such action that requires a vote of stockholders.
(l) LIMITATIONS ON CONVERSIONS. Each holder of the Series A Preferred Stock's right to convert its shares of Series A Preferred Stock into shares of Common Stock shall not be limited by any notice delivered by the Corporation of any Change of Control or other event that notwithstanding this subsection (l) shall purport to limit such conversion right.
(m) REDEMPTION. The shares of Series A Preferred Stock shall not be redeemed or subject to redemption, whether at the option of the Corporation or any holder thereof, or otherwise.
"ACCRETED VALUE" means, as of any date, with respect to each share of Series A Preferred Stock, $1.12 (subject to adjustment for the events described in Section 7(e)(i)), PLUS the amount of dividends that have accrued, compounded and been added thereto to such date pursuant to Section 3(a) hereof.
"AFFILIATE" means any Person who is an "affiliate" as defined in Rule 12b-2 of the General Rules and Regulations under the Exchange Act.
"BOARD OF DIRECTORS" means the Board of Directors of the Corporation.
"BUSINESS DAY" means any day except a Saturday, a Sunday, or other day on which commercial banks in the State of New York are authorized or required by law or executive order to close.
"BY-LAWS" means the by-laws of the Corporation in effect on the Closing Date, as the same may be amended from time to time.
"CAPITAL STOCK" means, with respect to any Person, any and all shares, interests, participations, rights in, or other equivalents (however designated and whether voting or non-voting) of, such Person's capital stock (including, without limitation, common stock and preferred stock) and any and all rights, warrants or options exchangeable for or convertible into such capital stock.
"CERTIFICATE OF DESIGNATIONS" means this Certificate of Designations relating to the powers, designations, preferences and rights of the Series A Preferred Stock.
"CERTIFICATE OF INCORPORATION" means the Fourth Amended and Restated Certificate of Incorporation of the Company in effect on the Closing Date, as the same may be amended from time to time.
"CHANGE OF CONTROL" means (i) any merger, consolidation or other business combination transaction (or series of related transactions) in which the stockholders owning a majority of the voting securities of the Corporation prior to such transaction do not own a majority of the voting securities of the surviving entity, (ii) any tender offer, exchange offer or other transaction whereby any person or "group" other than the holders of shares of Series A Preferred Stock obtains a majority of the outstanding shares of Common Stock, (iii) a sale of all or substantially all of the assets of the Corporation, (iv) any proxy contest in which a majority of the Board of Directors of the Corporation (or persons appointed by the Board of Directors) prior to such contest do not constitute a majority of the Corporation's Board of Directors after such contest or (v) any other transaction described in any stockholder rights agreement or "poison pill," if any, to which the Corporation is party, which may perm it the holders of any rights or similar certificates to exercise the rights evidenced thereby.
"CLOSING DATE" means May 15, 2003. 15
"COMMISSION" means the United States Securities and Exchange Commission or any similar agency then having jurisdiction to enforce the Securities Act.
"COMMON STOCK" shall have the meaning ascribed to it in Section 2 hereof.
"COMMON STOCK EQUIVALENT" means any security or obligation which is by its terms, directly or indirectly, convertible into or exchangeable or exercisable for shares of Common Stock, including, without limitation, the Series A Preferred Stock, and any option, warrant or other subscription or purchase right with respect to Common Stock or any Common Stock Equivalent.
"COMPOUNDING DATE" shall have the meaning ascribed to it in Section 3(a) hereof.
"CONTINGENT OBLIGATION" means, as applied to any Person, any direct or indirect liability of that Person with respect to any Indebtedness, lease, dividend, guaranty, letter of credit or other obligation, contractual or otherwise (the "primary obligation") of another Person (the "primary obligor"), whether or not contingent, (a) to purchase, repurchase or otherwise acquire such primary obligations or any property constituting direct or indirect security therefor, (b) to advance or provide funds (i) for the payment or discharge of any such primary obligor or otherwise to maintain the net worth or solvency or any balance sheet item, level of income or financial condition of the primary obligor, (c) to purchase property, securities or services primarily for the purpose of assuring the owner of any such primary obligation of the ability of the primary obligor to make payment of such primary obligation, or (d) otherwise to assure or hold harmless the owner of any such primary obligation against loss or failure or inability to perform in respect thereof. The amount of any Contingent Obligation shall be deemed to be an amount equal to the stated or determinable amount of the primary obligation in respect of which such Contingent Obligation is made or, if not stated or determinable, the maximum reasonably anticipated liability in respect thereof.
"CONVERSION PRICE" shall have the meaning ascribed to it in Section 7(a) hereof.
"CORPORATION" shall have the meaning ascribed to it in the first paragraph of this Certificate of Designations.
"CURRENT MARKET PRICE" per share of Capital Stock of any Person means, as of the date of determination, (a) the average of the daily Market Price under clause (a), (b) or (c) of the definition thereof of such Capital Stock during the immediately preceding thirty (30) trading days ending on such date, and (b) if such Capital Stock is not then listed or admitted to trading on any national securities exchange or quoted in the over-the-counter market, then the Market Price under clause (d) of the definition thereof on such date.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended, and the rules and regulations of the Commission thereunder.
"EXCLUDED TRANSACTION" means (a) any issuance of Common Stock pursuant to the exercise of any options that were outstanding under any of the Stock Option Plans as of the Closing Date, (b) any issuance of options to employees, consultants or strategic partners of the Corporation approved by the Board of Directors after the Closing Date, or any issuance of Common Stock pursuant to the exercise of such options, (c) any issuance of Common Stock (i) upon the conversion of shares of Series A Preferred Stock, (ii) as a dividend on shares of Series A Preferred Stock, (iii) upon the exercise of the Beacon Warrant or (iv) upon conversion or exercise of any Common Stock Equivalents, and (d) any issuance of Common Stock in connection with any Liquidation Payment or any Sale Payment.
"GAAP" means United States generally accepted accounting principles in effect from time to time.
"GOVERNMENTAL AUTHORITY" means the government of any nation, state, city, locality or other political subdivision thereof, any entity exercising executive, legislative, judicial, regulatory or administrative functions of or pertaining to government, and any corporation or other entity owned or controlled, through stock or capital ownership or otherwise, by any of the foregoing.
"INDEBTEDNESS" means, as to any Person, (a) all obligations of such Person for borrowed money (including, without limitation, reimbursement and all other obligations with respect to surety bonds, letters of credit and bankers' acceptances, whether or not matured), (b) all obligations of such Person to pay the deferred purchase price of property or services, except trade accounts payable and accrued commercial or trade liabilities arising in the ordinary course of business, (c) all interest rate and currency swaps, caps, collars and similar agreements or hedging devices under which payments are obligated to be made by such Person, whether periodically or upon the happening of a contingency, (d) all indebtedness created or arising under any conditional sale or other title retention agreement with respect to property acquired by such Person (even though the rights and remedies of the seller or lender under such agreement in the event of default are limited to repossession or sale of such prop erty), (e) all obligations of such Person under leases which have been or should be, in accordance with GAAP, recorded as capital leases, (f) all indebtedness secured by any Lien (other than Liens in favor of lessors under leases other than leases included in clause (e)) on any property or asset owned or held by that Person regardless of whether the indebtedness secured thereby shall have been assumed by that Person or is non-recourse to the credit of that Person, and (g) any Contingent Obligation of such Person.
"ISSUE DATE" shall have the meaning ascribed to it in Section 7(e)(ii) hereof.
"JUNIOR STOCK" shall have the meaning ascribed to it in Section 2 hereof.
"LIEN" means any mortgage, deed of trust, pledge, hypothecation, assignment, encumbrance, lien (statutory or other) or preference, priority, right or other security interest or preferential arrangement of any kind or nature whatsoever.
"LIQUIDATION" means the voluntary or involuntary liquidation under applicable bankruptcy or reorganization legislation, or the dissolution or winding up of the Corporation.
"LIQUIDATION PAYMENT" shall have the meaning ascribed to it in Section 4(a) hereof.
"MARKET PRICE" means, with respect to the Capital Stock of any Person, as of the date of determination, (a) if such Capital Stock is listed on a national securities exchange, the closing price per share of such Capital Stock on such date published in THE WALL STREET JOURNAL (NATIONAL EDITION) or, if no such closing price on such date is published in THE WALL STREET JOURNAL (NATIONAL EDITION), the average of the closing bid and asked prices on such date, as officially reported on the principal national securities exchange on which such Capital Stock is then listed or admitted to trading; or (b) if such Capital Stock is not then listed or admitted to trading on any national securities exchange but is designated as a national market system security by the National Association of Securities Dealers, Inc., the last trading price of such Capital Stock on such date; or (c) if there shall have been no trading on such date or if such Capital Stock is not designated as a national market system secur ity by the National Association of Securities Dealers, Inc., the average of the reported closing bid and asked prices of such Capital Stock on such date as shown by the National Market System of the National Association of Securities Dealers, Inc. Automated Quotations System and reported by any member firm of the New York Stock Exchange selected by the Corporation; or (d) if none of (a), (b) or (c) is applicable, a market price per share determined mutually by the Board of Directors (acting in good faith pursuant to the exercise of its fiduciary duties) and the holders of a majority of the shares of Series A Preferred Stock or, if the Board of Directors and the holders of a majority of the shares of Series A Preferred Stock shall fail to agree, at the Corporation's expense by an appraiser chosen by the Board of Directors (acting in good faith pursuant to the exercise of its fiduciary duties) and reasonably acceptable to the holders of a majority of the shares of Series A Preferred Stock. Any determination of the Market Price by an appraiser shall be based on a valuation of the Corporation as an entirety without regard to any discount for minority interests or disparate voting rights among classes of Capital Stock.
"NEW ISSUE PRICE" shall have the meaning ascribed to it in Section 7(e)(ii) hereof.
"NEWLY ISSUED SECURITIES" shall have the meaning ascribed to it in Section 6(a) hereof.
"PERSON" means any individual, firm, corporation, partnership, trust, incorporated or unincorporated association, joint venture, joint stock company, limited 18 liability company, Governmental Authority or other entity of any kind, and shall include any successor (by merger or otherwise) of such entity.
"PREEMPTIVE ACCEPTANCE PERIOD" shall have the meaning ascribed to it in Section 6(b) hereof.
"PREEMPTIVE NOTICE" shall have the meaning ascribed to it in Section 6(b) hereof.
"PREEMPTIVE RIGHT" shall have the meaning ascribed to it in Section 6(a) hereof.
"RELEVANT DATE" shall have the meaning ascribed to it in Section 7(e)(ii) hereof.
"SALE PAYMENT" shall have the meaning ascribed to it in Section 4(b) hereof.
"SECURITIES ACT" means the Securities Act of 1933, as amended, and the rules and regulations of the Commission thereunder.
"SERIES A PREFERRED STOCK" shall have the meaning ascribed to it in Section 1 hereof.
"STOCK OPTION PLANS" means the Corporation's stock option plans and employee purchase plans approved by the Board of Directors, pursuant to which shares of restricted stock and options to purchase shares of Common Stock are reserved and available for grant to officers, directors, employees and consultants of the Corporation. "TRANSACTION" shall have the meaning ascribed to it in Section 7(h) hereof.
"VOTE PER SHARE" means 0.7417.
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IN WITNESS WHEREOF, the undersigned has executed this Certificate of Designations as of May 15, 2003.
EVERGREEN SOLAR, INC.
By: /s/ Mark A. Farber ---------------------------------------
Name: Mark A. Farber
Title: Chief Executive Officer
EXECUTION COPY
EXHIBIT 3
REGISTRATION RIGHTS AGREEMENT
This REGISTRATION RIGHTS AGREEMENT, dated May 15, 2003 (this "AGREEMENT"), among Evergreen Solar, Inc., a Delaware corporation (the "COMPANY"), Perseus 2000, L.L.C. ("PERSEUS"), Nth Power Technologies Fund II, LP ("NTH POWER II"), Nth Power Technologies Fund II-A, LP ("NTH POWER II-A" and together with Nth Power II, "NTH POWER"), RockPort Capital Partners, L.P. ("ROCKPORT"), RP Co-Investment Fund I, L.P. ("RP CO-INVESTMENT"), Micro-Generation Technology Fund, LLC ("Micro-Generation"), UVCC Fund II ("UVCC II"), UVCC II Parallel Fund, L.P. ("UVCC II PARALLEL" and together with Micro-Generation and UVCC II, "ARETE FUNDS"), Caisse de depot et placement du Quebec ("CDP"), CDP Capital - Technology Ventures U.S. Fund 2002 L.P. ("CDP CAPITAL"), Beacon Power Corporation ("BEACON"), Massachusetts Technology Park Corporation ("MTPC"), Zero Stage Capital VII, L.P. ("ZERO Stage"), Zero Stage Capital (Cayman) VII, L.P. ("ZERO STAGE CAYMAN"), Zero Stage Capital SBIC VII, L.P. ("ZERO STAGE SBIC"), IMPAX E nvironmental Markets plc ("IMPAX"), Merrill Lynch New Energy Technology plc ("MERRILL LYNCH NEW ENERGY FUND"), MLIIF New Energy Fund ("MLIIF"), PNE Invest Limited ("PNE"), Odyssey Fund ("ODYSSEY"), SAM Private Equity Energy Fund LP ("SAM ENERGY FUND"), SAM Sustainability Private Equity LP ("SAM PRIVATE EQUITY") and SAM Smart Energy ("SAM SMART ENERGY" and together with Perseus, Nth Power, Rockport, RP Co-Investment, Arete Funds, CDP, CDP Capital, Beacon, MTPC, Zero Stage, Zero Stage Cayman, Zero Stage SBIC, Impax, Merrill Lynch New Energy Fund, MLIIF, PNE, Odyssey, SAM Energy Fund, SAM Private Equity and SAM Smart Energy, the "INVESTORS"). Unless otherwise provided in this Agreement, capitalized terms used herein have the respective meanings given to them in Section 1.1 hereof.
WHEREAS, pursuant to the Stock and Warrant Purchase Agreement, dated March 21, 2003 (the "PURCHASE AGREEMENT"), among the Company and the Investors, the Company has agreed to issue and sell (a) to the Investors, an aggregate of 26,227,668 shares of Series A Convertible Participating Preferred Stock, par value $0.01 per share, of the Company (the "SERIES A PREFERRED STOCK") and (b) to Beacon, the Beacon Warrant (as hereinafter defined); and
WHEREAS, the Company has agreed to grant certain registration rights with respect to the Registrable Securities as set forth in this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and agreements set forth herein and for good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
"AFFILIATE" means any Person who is an "affiliate" as defined in Rule 12b-2 of the General Rules and Regulations under the Exchange Act.
"AGREEMENT" means this Agreement as the same may be amended, supplemented or modified in accordance with the terms hereof.
"APPROVED UNDERWRITER" has the meaning set forth in Section 4.6.
"BEACON WARRANT" has the meaning set forth in the Purchase Agreement.
"BOARD OF DIRECTORS" means the Board of Directors of the Company.
"BUSINESS DAY" means any day other than a Saturday, Sunday or other day on which commercial banks in the State of New York are authorized or required by law or executive order to close.
"CHARTER DOCUMENTS" means the Certificate of Incorporation and the By-laws of the Company.
"CLOSING DATE" has the meaning set forth in the Purchase Agreement.
"COMMISSION" means the United States Securities and Exchange Commission or any similar agency then having jurisdiction to enforce the Securities Act.
"COMMON STOCK" means the Common Stock, par value $0.01 per share, of the Company and any other capital stock of the Company into which such stock is reclassified or reconstituted and any other common stock of the Company.
"COMMON STOCK EQUIVALENTS" means any security or obligation which is by its terms, directly or indirectly, convertible into or exchangeable or exercisable into or for shares of Common Stock, including, without limitation, the Series A Preferred Stock and any option, warrant or other subscription or purchase right with respect to Common Stock or any Common Stock Equivalent.
"COMPANY" has the meaning set forth in the preamble to this Agreement.
"COMPANY UNDERWRITER" has the meaning set forth in Section 5.1.
"DEMAND REGISTRATION" has the meaning set forth in Section 4.1.
"DESIGNATED HOLDER" means the Investors and any transferee of the Investors to whom Registrable Securities have been transferred in accordance with Section 10.5 of this Agreement, other than a transferee to whom Registrable Securities have been transferred pursuant to a Registration Statement under the Securities Act or Rule 144 or Regulation S under the Securities Act (or any successor rule thereto), but in 3 each case solely for so long as such Investor or transferee continues to be a holder of Registrable Securities.
"EFFECTIVENESS PERIOD" means the period commencing with the date of this Agreement and ending on the date that all Registrable Securities have ceased to be Registrable Securities.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended, and the rules and regulations of the Commission thereunder.
"HOLDERS' COUNSEL" has the meaning set forth in Section 7.1(a).
"INCIDENTAL REGISTRATION" has the meaning set forth in Section 5.1.
"INDEMNIFIED PARTY" has the meaning set forth in Section 8.3.
"INDEMNIFYING PARTY" has the meaning set forth in Section 8.3.
"INITIATING HOLDERS" has the meaning set forth in Section 4.1.
"INSPECTOR" has the meaning set forth in Section 7.1(h).
"INVESTORS" has the meaning set forth in the preamble to this Agreement and shall also include any transferee thereof.
"KNOWLEDGE" has the meaning set forth in the Purchase Agreement.
"LIABILITY" has the meaning set forth in Section 8.1.
"NASD" means the National Association of Securities Dealers, Inc.
"PERSON" means any individual, firm, corporation, partnership, limited liability company, trust, incorporated or unincorporated association, joint venture, joint stock company, limited liability company, government (or an agency or political subdivision thereof) or other entity of any kind, and shall include any successor (by merger or otherwise) of such entity.
"PURCHASE AGREEMENT" has the meaning set forth in the recitals to this Agreement. "RECORDS" has the meaning set forth in Section 7.1(h).
"REGISTRABLE SECURITIES" means, subject to Section 2.2 below, the shares of Common Stock to be issued upon (a) the conversion of the Series A Preferred Stock and (b) the exercise of the Beacon Warrant.
"REGISTRABLE SHARES" has the meaning set forth in the Series D Purchase Agreement
"REGISTRATION EXPENSES" has the meaning set forth in Section 7.4.
"REGISTRATION STATEMENT" means a Registration Statement filed pursuant to the Securities Act. "S-3
INITIATING HOLDERS" has the meaning set forth in Section 6.1.
"S-3 REGISTRATION" has the meaning set forth in Section 6.1.
"SECURITIES ACT" means the Securities Act of 1933, as amended, and the rules and regulations of the Commission promulgated thereunder.
"SERIES A PREFERRED STOCK" has the meaning set forth in the recitals to this Agreement.
"SERIES D PURCHASE AGREEMENT" means that certain Series D Preferred Stock Purchase Agreement, dated as of December 28, 1999, by and among the Company and the parties thereto.
"SHELF REGISTRATION STATEMENT" has the meaning set forth in Section 3.1.
"STOCKHOLDERS" has the meaning set forth in the Series D Purchase Agreement.
"VALID BUSINESS REASON" has the meaning set forth in Section 4.1.
ARTICLE II
GENERAL; SECURITIES SUBJECT TO THIS AGREEMENT
2.1 GRANT OF RIGHTS. The Company hereby grants registration rights to the Designated Holders upon the terms and conditions set forth in this Agreement.
2.2 REGISTRABLE SECURITIES. For the purposes of this Agreement, Registrable Securities will cease to be Registrable Securities, when (i) a Registration Statement covering such Registrable Securities has been declared effective under the Securities Act by the Commission and such Registrable Securities have been disposed of pursuant to such effective Registration Statement, (ii) the entire amount of the Registrable Securities owned by a Designated Holder may be sold in a single sale, in the opinion of counsel satisfactory to the Company and such Designated Holder, each in their reasonable judgment (it being agreed that Testa, Hurwitz & Thibeault, LLP shall be satisfactory), without any limitation as to volume pursuant to Rule 144 (or any successor provision then in effect) under the Securities Act or (iii) such Registrable Securities have been sold to the public pursuant to Rule 144 under the Securities Act.
2.3 HOLDERS OF REGISTRABLE SECURITIES. A Person is deemed to be a holder of Registrable Securities whenever such Person owns of record Registrable Securities, or holds an option to purchase, or a security convertible into or exercisable or 5 exchangeable for, Registrable Securities whether or not such acquisition or conversion has actually been effected. If the Company receives conflicting instructions, notices or elections from two or more Persons with respect to the same Registrable Securities, the Company may act upon the basis of the instructions, notice or election received from the registered owner of such Registrable Securities. Registrable Securities issuable upon exercise of an option or upon conversion of another security shall be deemed outstanding for the purposes of this Agreement.
ARTICLE III
SHELF REGISTRATION STATEMENT
3.1 SHELF REGISTRATION STATEMENT. Not later than thirty (30) days after the date hereof, the Company shall file with the Commission a shelf registration statement pursuant to Rule 415 of the Securities Act (the "SHELF REGISTRATION STATEMENT") on Form S-3 (or any successor form thereto), with respect to the resale, from time to time, of all of the Registrable Securities held by Designated Holders.
3.2 EFFECTIVE SHELF REGISTRATION STATEMENT. The Company shall use its reasonable best efforts to cause the Shelf Registration Statement to become effective as soon as practicable after the date hereof (but not later than seventy-five (75) days after the filing date of the Shelf Registration Statement), and shall use its reasonable best efforts to keep the Shelf Registration Statement continuously effective under the Securities Act, subject to the provisions of Section 7.3, until the earlier of (i) the second anniversary of the effective date of the Shelf Registration Statement or (ii) such time as the Company delivers an opinion of counsel that each Designated Holder may sell in the open market in a single transaction all Registrable Securities then held by each such Designated Holder pursuant to Rule 144(k) of the Securities Act (or any similar provision then in force) without being subject to the volume limitations thereof or otherwise under an applicable exemption from the registration requirements of the Securities Act, as amended, and all other applicable securities and blue sky laws, or (iii) all Registrable Securities covered by such Shelf Registration Statement have been sold.
ARTICLE IV
DEMAND REGISTRATION
4.1 REQUEST FOR DEMAND REGISTRATION. At any time after the date hereof that the Shelf Registration Statement is not effective, any Investor or group of Investors holding at least 10% of the Registrable Securities held by all of the Investors (the "INITIATING HOLDERS") may make a written request to the Company to register, and the Company shall use its best efforts to register, under the Securities Act (other than pursuant to a Registration Statement on Form S-4 or S-8 or any successor thereto) (a "DEMAND REGISTRATION"), the number of Registrable Securities stated in such request; provided, HOWEVER, that (i) the reasonably anticipated aggregate price to the public of all Registrable Securities required to be included in such public offering shall exceed $4,000,000 and (ii) the Company shall not be obligated to effect more than three such 6 Demand Registrations for the Investors. For purposes of the preceding sentence, two or more Registration Statements filed in response to one demand shall be counted as one Demand Registration. If the Board of Directors, in its good faith judgment, determines that any registration of Registrable Securities should not be made or continued because it would materially interfere with any material financing, acquisition, corporate reorganization or merger or other material transaction involving the Company (a "VALID BUSINESS REASON"), the Company may (x) postpone filing a Registration Statement relating to a Demand Registration until such Valid Business Reason no longer exists, but in no event for more than ninety (90) days, and (y) in case a Registration Statement has been filed relating to a Demand Registration, the Company, upon the approval of a majority of the Board of Directors, may cause such Registration Statement to be withdrawn and its effectiveness terminated or may postpone amending or supplementing such Registration Statement. The Company shall give written notice of its determination to postpone or withdraw a Registration Statement and of the fact th at the Valid Business Reason for such postponement or withdrawal no longer exists, in each case, promptly after the occurrence thereof. Notwithstanding anything to the contrary contained herein, the Company may not postpone or withdraw a filing due to a Valid Business Reason under this Section 4.1 or Section 6.3 more than once in any twelve (12) month period. Each request for a Demand Registration by the Initiating Holders shall state the amount of the Registrable Securities proposed to be sold and the intended method of disposition thereof.
4.2 INCIDENTAL OR "PIGGY-BACK" RIGHTS WITH RESPECT TO A DEMAND REGISTRATION. Each of the Designated Holders (other than Initiating Holders which have requested a registration under Section 4.1) may offer its or his Registrable Securities under any Demand Registration pursuant to this Section 4.2. Within five (5) Business Days after the receipt of a request for a Demand Registration from an Initiating Holder, the Company shall (i) give written notice thereof to all of the Designated Holders (other than Initiating Holders which have requested a registration under Section 4.1) and (ii) subject to Section 4.5, include in such registration all of the Registrable Securities held by such Designated Holders from whom the Company has received a written request for inclusion therein within ten (10) Business Days of the receipt by such Designated Holders of such written notice referred to in clause (i) above. Each such request by such Designated Holders shall specify the number of Registrable Securit ies proposed to be registered. The failure of any Designated Holder to respond within such 10-Business Day period referred to in clause (ii) above shall be deemed to be a waiver of such Designated Holder's rights under this Article IV with respect to such Demand Registration. Any Designated Holder may waive its rights under this Article IV prior to the expiration of such 10-Business Day period by giving written notice to the Company, with a copy to the Initiating Holders.
4.3 EFFECTIVE DEMAND REGISTRATION. The Company shall use its reasonable best efforts to cause any such Demand Registration to become and remain effective not later than seventy-five (75) days after it receives a request under Section 4.1 hereof. A registration shall not constitute a Demand Registration until it has become effective and remains continuously effective for the lesser of (i) the period during which all Registrable Securities registered in the Demand Registration are sold and 7 (ii) 180 days; PROVIDED, HOWEVER, that a registration shall not constitute a Demand Registration if (x) after such Demand Registration has become effective, such registration or the related offer, sale or distribution of Registrable Securities thereunder is interfered with by any stop order, injunction or other order or requirement of the Commission or other governmental agency or court for any reason not attributable to the Initiating Holders and such interference is not thereafter eliminated or (y) the conditions specified in the underwriting agreement, if any, entered into in connection with such Demand Registration are not satisfied or waived, other than by reason of a failure by the Initiating Holder.
4.4 EXPENSES. The Company shall pay all Registration Expenses in connection with a Demand Registration, whether or not such Demand Registration becomes effective.
4.5 UNDERWRITING PROCEDURES. If the Initiating Holders holding a majority of the Registrable Securities held by all of the Initiating Holders so elect, the Company shall use its reasonable best efforts to cause such Demand Registration to be in the form of a firm commitment underwritten offering and the managing underwriter or underwriters selected for such offering shall be the Approved Underwriter selected in accordance with Section 4.6. In connection with any Demand Registration under this Article IV involving an underwritten offering, none of the Registrable Securities held by any Designated Holder making a request for inclusion of such Registrable Securities pursuant to Section 4.2 hereof shall be included in such underwritten offering unless such Designated Holder accepts the terms of the offering as agreed upon by the Company, the Initiating Holders and the Approved Underwriter, and then only in such quantity as will not, in the opinion of the Approved Underwriter, jeopardize the su ccess of such offering by the Initiating Holders. If the Approved Underwriter advises the Company that the aggregate amount of such Registrable Securities requested to be included in such offering is sufficiently large to have a material adverse effect on the success of such offering, then the Company shall include in such registration, to the extent of the amount that the Approved Underwriter believes may be sold without causing such material adverse effect, FIRST, such number of Registrable Securities of the Initiating Holders and any Designated Holder participating in the offering pursuant to this Article IV, which Registrable Securities shall be allocated PRO RATA among such Initiating Holders and Designated Holders, based on the number of Registrable Securities requested to be included in such offering by each such Initiating Holder and Designated Holder, SECOND, any other securities of the Company requested by holders thereof to be included in such registration, which such securities shall be allocated PRO RATA among such stockholders, based on the number of the Company's securities requested to be included in such offering by each such stockholder, and THIRD, securities offered by the Company for its own account. In addition, the Company shall not be required to file any registration statement pursuant to this Article IV within ninety (90) days after the effective date of any other Registration Statement of the Company if (i) the Registration Statement was not for the account of the Designated Holders but the Designated Holders had the opportunity to include all of the Registrable Securities they requested to include in such registration pursuant to Article V or (ii) the Registration Statement was filed pursuant to Article VI or this Article IV
4.6 SELECTION OF UNDERWRITERS. If any Demand Registration or S-3 Registration, as the case may be, of Registrable Securities is in the form of an underwritten offering, the Initiating Holders or S-3 Initiating Holders, as the case may be, holding a majority of the Registrable Securities held by all of the Initiating Holders or S-3 Initiating Holders, as the case may be, shall select and obtain an investment banking firm of national reputation to act as the managing underwriter of the offering (the "APPROVED UNDERWRITER"); PROVIDED, HOWEVER, that the Approved Underwriter shall, in any case, also be approved by the Company.
ARTICLE V
INCIDENTAL OR "PIGGY-BACK" REGISTRATION
5.1 REQUEST FOR INCIDENTAL REGISTRATION. At any time after the date hereof, if the Shelf Registration Statement is not effective and the Company proposes to file a Registration Statement under the Securities Act with respect to an offering by the Company for its own account (other than a Registration Statement on Form S-4 or S-8 or any successor thereto, or any Registration Statement filed pursuant to subsection 8(c) of the Series D Purchase Agreement) or for the account of any stockholder of the Company other than any Designated Holders, then the Company shall give written notice of such proposed filing to each of the Designated Holders at least twenty (20) days before the anticipated filing date, and such notice shall describe the proposed registration and distribution and offer such Designated Holders the opportunity to register the number of Registrable Securities as each such Designated Holder may request (an "INCIDENTAL REGISTRATION"). The Company shall use its reasonable best effort s (within twenty (20) days of the notice by the Designated Holders provided for below in this sentence) to cause the managing underwriter or underwriters in the case of a proposed underwritten offering (the "COMPANY UNDERWRITER") to permit each of the Designated Holders who have requested the Company in writing within ten (10) Business Days of the giving of the notice by the Company to participate in the Incidental Registration to include its, his or her Registrable Securities in such offering on the same terms and conditions as the securities of the Company or the account of such other stockholder, as the case may be, included therein. In connection with any Incidental Registration under this Section 5.1 involving an underwritten offering, the Company shall not be required to include any Registrable Securities in such underwritten offering unless the Designated Holders thereof accept the terms of the underwritten offering as agreed upon between the Company, such other stockholders, if any, and the Company U nderwriter. If the Company Underwriter determines that the registration of all or part of the Registrable Securities which the Designated Holders have requested to be included would materially adversely affect the success of such offering, then the Company shall be required to include in such Incidental Registration, to the extent of the amount that the Company Underwriter believes may be sold without causing such adverse effect, FIRST, all of the securities to be offered for the account of the Company, SECOND, the Registrable Securities to be offered for the account of the Designated Holders pursuant to this Article V and the Registrable Shares to be offered for the account of the Stockholders pursuant to Section 8(d) of the Series D Purchase Agreement, as a group, which Registrable Securities and Registrable Shares shall be allocated PRO RATA among such Designated 9 Holders and Stockholders based on the number of Registrable Securities or Registrable Shares, as the case may be, requested to be included in such offering by each such Designated Holder or Stockholder, and THIRD, other securities requested to be included in such offering.
5.2 RIGHT TO TERMINATE REGISTRATION. The Company shall have the right to terminate or withdraw any registration initiated by it under Section 5.1 prior to the effectiveness of such registration whether or not any Designated Holder has elected to include Registrable Securities in such registration.
5.3 EXPENSES. The Company shall bear all Registration Expenses in connection with any Incidental Registration pursuant to this Article V, whether or not such Incidental Registration becomes effective.
ARTICLE VI
FORM S-3 REGISTRATION
6.1 REQUEST FOR A FORM S-3 REGISTRATION. At any time after the date hereof that the Shelf Registration Statement is not effective, in the event that the Company shall receive from one or more Investors (the "S-3 INITIATING HOLDERS") a written request that the Company register, under the Securities Act on Form S-3 (or any successor form then in effect) (an "S-3 REGISTRATION"), all or a portion of the Registrable Securities owned by such S-3 Initiating Holders, the Company shall give written notice of such request to all of the Designated Holders (other than the S-3 Initiating Holders who have requested an S-3 Registration under this Section 6.1) as far in advance as practicable (but not less than ten (10) Business Days) before the anticipated filing date of such Form S-3, and such notice shall describe the proposed registration and offer such Designated Holders the opportunity to register the number of Registrable Securities as each such Designated Holder may request in writing to the Compa ny, given within ten (10) days after their receipt from the Company of the written notice of such registration. If requested by the S-3 Initiating Holders such S-3 Registration shall be for an offering on a continuous basis pursuant to Rule 415, under the Securities Act. With respect to each S-3 Registration, the Company shall, subject to Section 6.2, (i) include in such offering the Registrable Securities of the S-3 Initiating Holders and the Designated Holders who have requested in writing to participate in such registration on the same terms and conditions as the Registrable Securities of the S-3 Initiating Holders included therein and (ii) use its reasonable best efforts to cause such registration pursuant to this Section 6.1 to become and remain effective as soon as practicable, but in any event not later than forty-five (45) days after it receives a request therefor. The Company's obligations in this Article VI with respect to each requested S-3 Registration are subject to the conditions that (i) the r easonably anticipated aggregate price to the public of the Registrable Securities requested for inclusion in such S-3 Registration shall equal or exceed $1,000,000 and (ii) the Company is a registrant entitled to use Form S-3 or a successor thereto to register the securities.
6.2 FORM S-3 UNDERWRITING PROCEDURES. If the S-3 Initiating Holders holding a majority of the Registrable Securities held by all of the S-3 Initiating Holders so elect, the Company shall use its reasonable best efforts to cause such S-3 Registration pursuant to this Article VI to be in the form of a firm commitment underwritten offering and the managing underwriter or underwriters selected for such offering shall be the Approved Underwriter selected in accordance with Section 4.6. In connection with any S-3 Registration under Section 6.1 involving an underwritten offering, the Company shall not be required to include any Registrable Securities in such underwritten offering unless the Designated Holders thereof accept the terms of the underwritten offering as agreed upon between the Company, the Approved Underwriter and the S-3 Initiating Holders, and then only in such quantity as such underwriter believes will not jeopardize the success of such offering by the S-3 Initiating Holders. If th e Approved Underwriter believes that the registration of all or part of the Registrable Securities which the S-3 Initiating Holders and the other Designated Holders have requested to be included would materially adversely affect the success of such public offering, then the Company shall be required to include in the underwritten offering, to the extent of the amount that the Approved Underwriter believes may be sold without causing such adverse effect, FIRST, such number of Registrable Securities of the S-3 Initiating Holders and any other Designated Holders participating in the offering pursuant to this Article VI, which Registrable Securities shall be allocated PRO RATA among such S-3 Initiating Holders and such other Designated Holders, based on the number of Registrable Securities requested to be included in such offering by each such S-3 Initiating Holder and Designated Holder, SECOND, securities offered by the Company for its own account, and THIRD, any other securities of the Company requested by hol ders thereof to be included in such registration, which such securities shall be allocated PRO RATA among such stockholders, based on the number of the Company's securities requested to be included in such offering by each such stockholder.
6.3 LIMITATIONS ON FORM S-3 REGISTRATIONS. If the Board of Directors, has a Valid Business Reason, the Company may (x) postpone filing a Registration Statement relating to a S-3 Registration until such Valid Business Reason no longer exists, but in no event for more than ninety (90) days, and (y) in case a Registration Statement has been filed relating to a S-3 Registration, the Company, upon the approval of a majority of the Board of Directors, may cause such Registration Statement to be withdrawn and its effectiveness terminated or may postpone amending or supplementing such Registration Statement (so long as the Designated Holders shall have the rights set forth in this Article VI within ninety (90) days of any such event). The Company shall give written notice of its determination to postpone or withdraw a Registration Statement and of the fact that the Valid Business Reason for such postponement or withdrawal no longer exists, in each case, promptly after the occurrence thereof. Notwi thstanding anything to the contrary contained herein, the Company may not postpone or withdraw a filing due to a Valid Business Reason under this Section 6.3 or Section 4.1 more than once in any twelve (12) month period. In addition, the Company shall not be required to effect any registration pursuant to Section 6.1 within ninety (90) days after the effective date of any other Registration Statement of the Company if (i) the Registration Statement was not for the account of the Designated Holders but the Designated Holders had the opportunity to include at least two-thirds of the Registrable Securities they requested to 11 include in such registration pursuant to Article V or (ii) the Registration Statement was filed pursuant to Article IV or this Article VI.
6.4 NO LIMITATION OF SHELF REGISTRATION RIGHT. No registration requested by any of the S-3 Initiating Holders pursuant to this Article VI shall be deemed to limit the rights of the Designated Holder set forth in Article III.
6.5 NO DEMAND REGISTRATION. No registration requested by any S-3 Initiating Holders pursuant to this Article VI shall be deemed a Demand Registration pursuant to Article IV.
6.6 EXPENSES. The Company shall bear all Registration Expenses in connection with any S-3 Registration pursuant to this Article VI, whether or not such S-3 Registration becomes effective.
ARTICLE VII
REGISTRATION PROCEDURES
7.1 OBLIGATIONS OF THE COMPANY. Whenever registration of Registrable Securities has been requested pursuant to Article III, Article IV, Article V or Article VI of this Agreement, the Company shall use its reasonable best efforts to effect the registration and sale of such Registrable Securities in accordance with the intended method of distribution thereof as quickly as practicable, and in connection with any such request, the Company shall, as expeditiously as possible:
(a) prepare and file with the Commission a Registration Statement on any form for which the Company then qualifies or which counsel for the Company shall deem appropriate and which form shall be available for the sale of such Registrable Securities in accordance with the intended method of distribution thereof, and use all reasonable best efforts to cause such Registration Statement to become effective; PROVIDED, HOWEVER, that (x) before filing a Registration Statement or prospectus or any amendments or supplements thereto, the Company shall provide a single counsel selected by the Designated Holders holding a majority of the Registrable Securities being registered in such registration ("HOLDERS' COUNSEL") with an adequate and appropriate opportunity to review and comment on such Registration Statement and each prospectus included therein (and each amendment or supplement thereto) to be filed with the Commission, subject to such documents being under the Company's control, and (y) the Comp any shall notify the Holders' Counsel and each seller of Registrable Securities of any stop order issued or threatened by the Commission and use all reasonable efforts to prevent the entry of such stop order or to remove it if entered;
(b) prepare and file with the Commission such amendments and supplements to such Registration Statement and the prospectus used in connection therewith as may be reasonably necessary to keep such Registration Statement effective for the period specified in such Article, or if not so specified, the lesser of (x) 180 days and (y) such shorter period which will terminate when all Registrable Securities covered 12 by such Registration Statement have been sold (PROVIDED, that if the S-3 Initiating Holders have requested that an S-3 Registration be for an offering on a continuous basis pursuant to Rule 415 under the Securities Act, then the Company shall keep such Registration Statement effective until the earliest of (i) the second anniversary of the effective date of such Registration Statement, (ii) such time as the Company delivers an opinion of counsel that each Designated Holder having Registrable Securities covered by such Registration Statement may sell in the open market in a single tra nsaction all Registrable Securities then held by each such Designated Holder pursuant to Rule 144(k) of the Securities Act (or any similar provision then in force) without being subject to the volume limitations thereof or otherwise under an applicable exemption from the registration requirements of the Securities Act, as amended, and all other applicable securities and blue sky laws, or (iii) all Registrable Securities covered by such Registration Statement have been sold) and shall comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such Registration Statement during such period in accordance with the intended methods of disposition by the sellers thereof set forth in such Registration Statement;
(c) furnish to each seller of Registrable Securities, prior to filing a Registration Statement, at least one copy of such Registration Statement as is proposed to be filed, and thereafter such number of copies of such Registration Statement, each amendment and supplement thereto (in each case including all exhibits thereto), the prospectus included in such Registration Statement (including each preliminary prospectus) and any prospectus filed under Rule 424 under the Securities Act as each such seller may reasonably request in order to facilitate the disposition of the Registrable Securities owned by such seller;
(d) register or qualify such Registrable Securities under such other securities or "blue sky" laws of such jurisdictions as any seller of Registrable Securities may reasonably request, and continue such registration or qualification in effect in such jurisdiction for as long as permissible pursuant to the laws of such jurisdiction, or for as long as any such seller reasonably requests or until all of such Registrable Securities are sold, whichever is shortest, and do any and all other acts and things which may be reasonably necessary or advisable to enable any such seller to consummate the disposition in such jurisdictions of the Registrable Securities owned by such seller; PROVIDED, HOWEVER, that the Company shall not be required to (x) qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this Section 7.1(d), (y) subject itself to taxation in any such jurisdiction or (z) consent to general service of process in any such jurisdict ion;
(e) notify each seller of Registrable Securities: (i) when a prospectus, any prospectus supplement, a Registration Statement or a post-effective amendment to a Registration Statement has been filed with the Commission, and, with respect to a Registration Statement or any post-effective amendment, when the same has become effective; (ii) of any request by the Commission or any other federal or state governmental authority for amendments or supplements to a Registration Statement or related prospectus or for additional information; (iii) of the issuance by the Commission or any other federal or state governmental authority of any stop order suspending the 13 effectiveness of a Registration Statement or the initiation or threatening of any proceedings for that purpose; (iv) of the receipt by the Company of any notification with respect to the suspension of the qualification or exemption from qualification of any of the Registrable Securities for sale in any jurisdiction or the initiation or t hreatening of any proceedings for such purpose; (v) of the existence of any fact or happening of any event of which the Company has Knowledge which makes any statement of a material fact in such Registration Statement or related prospectus or any document incorporated or deemed to be incorporated therein by reference untrue or which would require the making of any changes in the Registration Statement or prospectus in order that, in the case of the Registration Statement, it will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading, and that in the case of such prospectus, it will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading; and (vi) determination by counsel of the Company that a post-effective amend ment to a Registration Statement is advisable. (f) upon the occurrence of any event contemplated by Section 7.1(e)(v), as promptly as practicable, prepare a supplement or amendment to such Registration Statement or related prospectus and furnish to each seller of Registrable Securities a reasonable number of copies of such supplement to or an amendment of such Registration Statement or prospectus as may be necessary so that, after delivery to the purchasers of such Registrable Securities, in the case of the Registration Statement, it will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading, and that in the case of such prospectus, it will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
(g) enter into and perform customary agreements (including an underwriting agreement in customary form with the Approved Underwriter or Company Underwriter, if any, selected as provided in Article IV, Article V or Article VI, as the case may be) and take such other actions as are prudent and reasonably required in order to expedite or facilitate the disposition of such Registrable Securities, including causing its officers to participate in "road shows" and other information meetings organized by the Approved Underwriter or Company Underwriter, if applicable;
(h) make available at reasonable times for inspection by any seller of Registrable Securities, any managing underwriter participating in any disposition of such Registrable Securities pursuant to a Registration Statement, Holders' Counsel and any attorney, accountant or other agent retained by any such seller or any managing underwriter (each, an "INSPECTOR" and collectively, the "INSPECTORS"), all financial and other records, pertinent corporate documents and properties of the Company and its subsidiaries (collectively, the "RECORDS") as shall be reasonably necessary to enable them to exercise their due diligence responsibility, and cause the Company's and its 14 subsidiaries' officers, directors and employees, and the independent public accountants of the Company, to supply all information reasonably requested by any such Inspector in connection with such Registration Statement. Notwithstanding the foregoing, Records and other information that the Company determines, in good faith, to be confidential and which it notifies the Inspectors are confidential shall not be disclosed by the Inspectors or used for any purpose other than as necessary or appropriate for the purpose of such inspection (and the Inspectors shall confirm their agreement in writing in advance to the Company if the Company shall so request) unless (x) the disclosure of such Records is necessary, in the Company's judgment, to avoid or correct a misstatement or omission in the Registration Statement, (y) the release of such Records is ordered pursuant to a subpoena or other order from a court of competent jurisdiction after exhaustion of all appeals therefrom or (z) the information in such Records was known to the Inspectors on a non-confidential basis prior to its disclosure by the Company or has been made generally available to the public. Each seller of Registrable Securities agrees that it shall, upon learning that disclosure of such Records is sought in a court of competent jurisdiction, give notice to the Company and al low the Company, at the Company's expense, to undertake appropriate action to prevent disclosure of the Records deemed confidential;
(i) if such sale is pursuant to an underwritten offering, obtain "comfort" letters dated the effective date of the Registration Statement and the date of the closing under the underwriting agreement from the Company's independent public accountants in customary form and covering such matters of the type customarily covered by "comfort" letters as Holders' Counsel or the managing underwriter reasonably requests;
(j) furnish, at the request of any seller of Registrable Securities on the date such securities are delivered to the underwriters for sale pursuant to such registration or, if such securities are not being sold through underwriters, on the date the Registration Statement with respect to such securities becomes effective, an opinion, dated such date, of counsel representing the Company for the purposes of such registration, addressed to the underwriters, if any, and to the seller making such request, covering such legal matters with respect to the registration in respect of which such opinion is being given as the underwriters, if any, and such seller may reasonably request and are customarily included in such opinions;
(k) comply with all applicable rules and regulations of the Commission, and make generally available to its security holders, as soon as reasonably practicable but no later than fifteen (15) months after the effective date of the Registration Statement, an earnings statement covering a period of twelve (12) months beginning after the effective date of the Registration Statement, in a manner which satisfies the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder;
(l) cause all such Registrable Securities to be listed on each securities exchange on which similar securities issued by the Company are then listed; PROVIDED, that the applicable listing requirements are satisfied; 15
(m) keep Holders' Counsel advised in writing as to the initiation and progress of any registration under Article III, Article IV, Article V or Article VI hereunder; PROVIDED, that the Company shall provide Holders' Counsel with all correspondence with the Commission in connection with any Registration Statement filed hereunder to the extent that such Registration Statement has not been declared effective on or prior to the date required hereunder;
(n) provide reasonable cooperation to each seller of Registrable Securities and each underwriter participating in the disposition of such Registrable Securities and their respective counsel in connection with any filings required to be made with the NASD; and
(o) take all other steps reasonably necessary to effect the registration of the Registrable Securities contemplated hereby.
7.2 SELLER INFORMATION. The Company may require each seller of Registrable Securities as to which any registration is being effected to furnish, and such seller shall furnish, to the Company such information regarding the distribution of such securities as the Company may from time to time reasonably request in writing. The furnishing of such information shall be a condition to the inclusion of the seller's shares in such registration.
7.3 NOTICE TO DISCONTINUE. Each Designated Holder agrees that, upon receipt of any notice from the Company of the happening of any event of the kind described in Section 7.1(e)(v), such Designated Holder shall forthwith discontinue disposition of Registrable Securities pursuant to the Registration Statement covering such Registrable Securities until such Designated Holder's receipt of the copies of the supplemented or amended prospectus contemplated by Section 7.1(f) and, if so directed by the Company, such Designated Holder shall deliver to the Company (at the Company's expense) all copies, other than permanent file copies then in such Designated Holder's possession, of the prospectus covering such Registrable Securities which is current at the time of receipt of such notice. If the Company shall give any such notice, the Company shall extend the period during which such Registration Statement shall be maintained effective pursuant to this Agreement (including, without limitation, the per iod referred to in Section 7.1(b)) by the number of days during the period from and including the date of the giving of such notice pursuant to Section 7.1(e)(v) to and including the date when sellers of such Registrable Securities under such Registration Statement shall have received the copies of the supplemented or amended prospectus contemplated by, and meeting the requirements of, Section 7.1(f).
7.4 REGISTRATION EXPENSES. The Company shall pay all expenses arising from or incident to its performance of, or compliance with, this Agreement, including, without limitation, (i) Commission, stock exchange and NASD registration and filing fees, (ii) all fees and expenses incurred in complying with securities or "blue sky" laws (including reasonable fees, charges and disbursements of counsel to any underwriter incurred in connection with "blue sky" qualifications of the Registrable Securities as may be set forth in any underwriting agreement), (iii) all printing, 16 messenger and delivery expenses, (iv) the fees, charges and expenses of counsel to the Company and of its independent public accountants and any other accounting fees, charges and expenses incurred by the Company (including, without limitation, any expenses arising from any "cold comfort" letters or any special audits incident to or required by any registration or qualification) and any legal fees, charges and expenses incurre d, in the case of a Demand Registration or an S-3 Registration, by the Initiating Holders or the S-3 Initiating Holders, as the case may be, but solely with respect to a single counsel for all such Initiating Holders and S-3 Initiating Holders and (v) any liability insurance or other premiums for insurance obtained in connection with any Demand Registration or piggy-back registration thereon, Incidental Registration or S-3 Registration pursuant to the terms of this Agreement, regardless of whether such Registration Statement is declared effective. All of the expenses described in the preceding sentence of this Section 7.4 are referred to herein as "REGISTRATION EXPENSES." The Designated Holders of Registrable Securities sold pursuant to a Registration Statement shall bear the expense of any broker's commission or underwriter's discount or commission relating to registration and sale of such Designated Holders' Registrable Securities and, subject to clause (iv) above, shall bear the fees and expenses of their own counsel.
ARTICLE VIII
INDEMNIFICATION; CONTRIBUTION
8.1 INDEMNIFICATION BY THE COMPANY. The Company agrees to indemnify and hold harmless each Designated Holder, its general or limited partners, members, directors, officers, Affiliates and each Person who controls (within the meaning of Section 15 of the Securities Act) any of the foregoing from and against any and all losses, claims, damages, liabilities and expenses (including reasonable costs of investigation) (each, a "LIABILITY" and collectively, "LIABILITIES"), (i) arising out of or based upon any untrue, or allegedly untrue, statement of a material fact contained in any Registration Statement, prospectus or preliminary, final or summary prospectus or notification or offering circular (as amended or supplemented if the Company shall have furnished any amendments or supplements thereto) or (ii) arising out of or based upon any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading in light o f the circumstances under which such statements were made, except insofar as such Liability arises out of or is based upon any untrue statement or alleged untrue statement or omission or alleged omission contained in such Registration Statement, preliminary prospectus or final prospectus in reliance and in conformity with information concerning such Designated Holder furnished in writing to the Company by such Designated Holder specifically for use therein; provided, however, that the foregoing indemnity with respect to any preliminary prospectus shall not inure to the benefit of any Indemnified Person from whom the person asserting such losses, claims, damages, liabilities, expenses and judgments purchased securities if such untrue statement or omission or alleged untrue statement or omission made in such preliminary prospectus is eliminated or remedied in the prospectus and a copy of the prospectus shall not have been furnished to such person in a timely manner due to the wrongful action or wrongful inacti on of such Indemnified 17 Person, whether as a result of negligence or otherwise. The Company shall also provide customary indemnities to any underwriters of the Registrable Securities, their officers, directors and employees and each Person who controls such underwriters (within the meaning of Section 15 of the Securities Act) to the same extent as provided above with respect to the indemnification of the Designated Holders of Registrable Securities.
8.2 INDEMNIFICATION BY DESIGNATED HOLDERS. In connection with any Registration Statement in which a Designated Holder is participating pursuant to Article III, Article IV, Article V or Article VI hereof, each such Designated Holder shall promptly furnish to the Company in writing such information with respect to such Designated Holder as the Company may reasonably request or as may be required by law for use in connection with any such Registration Statement or prospectus and all information required to be disclosed in order to make the information previously furnished to the Company by such Designated Holder not materially misleading or necessary to cause such Registration Statement or prospectus not to omit a material fact with respect to such Designated Holder necessary in order to make the statements therein not misleading. Each Designated Holder agrees to indemnify and hold harmless the Company, its directors, officers, Affiliates, any underwriter retained by the Company and each Pers on who controls the Company or such underwriter (within the meaning of Section 15 of the Securities Act) to the same extent as the foregoing indemnity from the Company to the Designated Holders, but only if such untrue statement or alleged untrue statement or omission or alleged omission was made in reliance upon and in conformity with information with respect to such Designated Holder furnished in writing to the Company by such Designated Holder specifically for use in such Registration Statement or preliminary, final or summary prospectus or amendment or supplement, or a document incorporated by reference into any of the foregoing; PROVIDED, HOWEVER, that the total amount to be indemnified by such Designated Holder pursuant to this Section 8.2 shall be limited to the net proceeds (after deducting the underwriters' discounts and commissions) received by such Designated Holder in the offering to which the Registration Statement or prospectus relates.
8.3 CONDUCT OF INDEMNIFICATION PROCEEDINGS. Any Person entitled to indemnification hereunder (the "INDEMNIFIED PARTY") agrees to give prompt written notice to the indemnifying party (the "INDEMNIFYING PARTY") after the receipt by the Indemnified Party of any written notice of the commencement of any action, suit, proceeding or investigation or threat thereof made in writing for which the Indemnified Party intends to claim indemnification or contribution pursuant to this Agreement; PROVIDED, HOWEVER, that the failure to so notify the Indemnifying Party shall not relieve the Indemnifying Party of any Liability that it may have to the Indemnified Party hereunder (except to the extent that the Indemnifying Party is materially prejudiced or otherwise forfeits substantive rights or defenses by reason of such failure). If notice of commencement of any such action is given to the Indemnifying Party as above provided, the Indemnifying Party shall be entitled to participate in and, to the extent it may wish, jointly with any other Indemnifying Party similarly notified, to assume the defense of such action at its own expense, with counsel chosen by it and reasonably satisfactory to such Indemnified Party. The Indemnified Party shall have the right to employ separate counsel in any such action and participate in the defense thereof, but the fees and expenses of such counsel 18 shall be paid by the Indemnified Party unless (i) the Indemnifying Party agrees to pay the same, (ii) the Indemnifying Party fails to assume the defense of such action with counsel reasonably satisfactory to the Indemnified Party or (iii) the named parties to any such action (including any impleaded parties) include both the Indemnifying Party and the Indemnified Party and such parties have been advised by such counsel that either (x) representation of such Indemnified Party and the Indemnifying Party by the same counsel would be inappropriate under applicable standards of professional conduct or (y) there may be one or more legal defenses available to the Indemnified Party which are different from or additional to those available to the Indemnifying Party. In any of such cases, the Indemnifying Party shall not have the right to assume the defense of such action on behalf of such Indemnified Party, it being understood, however, that the Indemnifying Party shall not be liable for the fees and expenses of more than one separate firm of attorneys (in addition to any local counsel) for all Indemnified Parties. No Indemnifying Party shall be liable for any settlement entered into without its written consent, which consent shall not be unreasonably withheld. No Indemnifying Party shall, without the consent of such Indemnified Party, effect any settlement of any pending or threatened proceeding in respect of which such Indemnified Party is a party and indemnity has been sought hereunder by such Indemnified Party, unless such settlement includes an unconditional release of such Indemnified Party from all liability for claims that are the subj ect matter of such proceeding.
8.4 CONTRIBUTION. (a) If the indemnification provided for in this Article VIII from the Indemnifying Party is unavailable to an Indemnified Party hereunder in respect of any Liabilities referred to herein, then the Indemnifying Party, in lieu of indemnifying such Indemnified Party, shall contribute to the amount paid or payable by such Indemnified Party as a result of such Liabilities in such proportion as is appropriate to reflect the relative fault of the Indemnifying Party and Indemnified Party in connection with the actions which resulted in such Liabilities, as well as any other relevant equitable considerations. The relative faults of such Indemnifying Party and Indemnified Party shall be determined by reference to, among other things, whether any action in question, including any untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact, has been made by, or relates to information supplied by, such Indemnifying Party or Indemnifie d Party, and the parties' relative intent, knowledge, access to information and opportunity to correct or prevent such action. The amount paid or payable by a party as a result of the Liabilities referred to above shall be deemed to include, subject to the limitations set forth in Sections 8.1 and 8.2, any legal or other fees, charges or expenses reasonably incurred by such party in connection with any investigation or proceeding; PROVIDED, that the total amount to be contributed by such Designated Holder shall be limited to the net proceeds (after deducting the underwriters' discounts and commissions) received by such Designated Holder in the offering. (b) The parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 8.4 were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to in Section 8.4(a). No Person guilty of fraudulent misrepresentation (within 19 the meaning of Secti on 11(f) of the Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation.
ARTICLE IX
COVENANTS
9.1 RULE 144. The Company covenants that from and after the date hereof it shall (a) file any reports required to be filed by it under the Exchange Act and (b) take such further action as each Designated Holder may reasonably request (including providing any information necessary to comply with Rule 144 under the Securities Act), all to the extent required from time to time to enable such Designated Holder to sell Registrable Securities without registration under the Securities Act within the limitation of the exemptions provided by (i) Rule 144 under the Securities Act, as such rule may be amended from time to time, or Regulation S under the Securities Act or (ii) any similar rules or regulations hereafter adopted by the Commission. The Company shall, upon the request of any Designated Holder, deliver to such Designated Holder a written statement as to whether it has complied with such requirements.
9.2 LIMITATIONS ON REGISTRATION RIGHTS. No person (including holders of Registrable Shares) shall, without the prior written consent of Investors holding at least a majority of the Registrable Securities, be permitted to include securities of the Company in any registration filed under Article III, Article IV or Article VI hereto.
ARTICLE X
MISCELLANEOUS
10.1 RECAPITALIZATIONS, EXCHANGES, ETC. The provisions of this Agreement shall apply to the full extent set forth herein with respect to (i) the shares of Common Stock and the Common Stock Equivalents, (ii) any and all shares of voting common stock of the Company into which the shares of Common Stock or Common Stock Equivalents are converted, exchanged or substituted in any recapitalization or other capital reorganization by the Company and (iii) any and all equity securities of the Company or any successor or assign of the Company (whether by merger, consolidation, sale of assets or otherwise) which may be issued in respect of, in conversion of, in exchange for or in substitution of, the shares of Common Stock or Common Stock Equivalents and shall be appropriately adjusted for any stock dividends, splits, reverse splits, combinations, recapitalizations and the like occurring after the date hereof. The Company shall cause any successor or assign (whether by merger, consolidation, sale of assets or otherwise) to enter into a new registration rights agreement with the Designated Holders on terms substantially the same as this Agreement as a condition of any such transaction.
10.2 NO INCONSISTENT AGREEMENTS. The Company represents and warrants that it has not granted to any Person the right to request or require the Company to register any securities issued by the Company, other than the rights granted to the 20 Designated Holders herein. The Company shall not enter into any agreement with respect to its securities that is inconsistent with the rights granted to the Designated Holders in this Agreement or grant any additional registration rights to any Person or with respect to any securities which are not Registrable Securities which are prior in right to or inconsistent with the rights granted in this Agreement, except with the prior written consent of holders of a majority of the Registrable Securities.
10.3 REMEDIES. The Designated Holders, in addition to being entitled to exercise all rights granted by law, including recovery of damages, shall be entitled to specific performance of their rights under this Agreement. The Company agrees that monetary damages would not be adequate compensation for any loss incurred by reason of a breach by it of the provisions of this Agreement and hereby agrees to waive in any action for specific performance the defense that a remedy at law would be adequate.
10.4 NOTICES. All notices, demands and other communications provided for or permitted hereunder shall be made in the manner provided for under the Purchase Agreement.
10.5 SUCCESSORS AND ASSIGNS; THIRD PARTY BENEFICIARIES. This Agreement shall inure to the benefit of and be binding upon the successors and permitted assigns of the parties hereto as hereinafter provided. The rights of the Designated Holders contained in this Agreement shall be automatically transferred to the transferee of any Registrable Security, PROVIDED, that such transferee agrees to become a party to this Agreement and be fully bound by, and subject to, all of the terms and conditions of the Agreement as though an original party hereto. All of the obligations of the Company hereunder shall survive any such transfer. Except as provided in Article VIII, no Person other than the parties hereto and their successors and permitted assigns are intended to be a beneficiary of this Agreement.
10.6 AMENDMENTS AND WAIVERS. Except as otherwise provided herein, the provisions of this Agreement may not be amended, modified or supplemented, and waivers or consents to departures from the provisions hereof may not be given unless consented to in writing by (i) the Company and (ii) the Investors holding a majority of the Registrable Securities held by all of the Investors; PROVIDED, that if any such amendment, modification, supplement, waiver, consent or departure would adversely affect the rights, preferences or privileges of any Investor disproportionately with respect to the rights, preferences and privileges of the other Investors, such Investor's consent in writing shall be required.
10.7 COUNTERPARTS. This Agreement may be executed in any number of counterparts and by the parties hereto in separate counterparts, each of which when so executed shall be deemed to be an original and all of which taken together shall constitute one and the same agreement. The parties hereto confirm that any facsimile copy of another party's executed counterpart of this Agreement (or its signature page thereof) will be deemed to be an executed original thereof.
10.8 HEADINGS. The headings in this Agreement are for convenience of reference only and shall not limit or otherwise affect the meaning hereof.
10.9 GOVERNING LAW; CONSENT TO JURISDICTION. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO THE PRINCIPLES OF CONFLICTS OF LAW THEREOF. The parties hereto irrevocably submit to the non-exclusive jurisdiction of any state or federal court sitting in the County of New York, in the State of New York over any suit, action or proceeding arising out of or relating to this Agreement or the affairs of the Company. To the fullest extent they may effectively do so under applicable law, the parties hereto irrevocably waive and agree not to assert, by way of motion, as a defense or otherwise, any claim that they are not subject to the jurisdiction of any such court, any objection that they may now or hereafter have to the laying of the venue of any such suit, action or proceeding brought in any such court and any claim that any such suit, action or proceeding brought in any such court has been brought in an inconvenient forum. < /P>
10.10 SEVERABILITY. If any one or more of the provisions contained herein, or the application thereof in any circumstance, is held invalid, illegal or unenforceable in any respect for any reason, the validity, legality and enforceability of any such provision in every other respect and of the remaining provisions hereof shall not be in any way impaired, unless the provisions held invalid, illegal or unenforceable shall substantially impair the benefits of the remaining provisions hereof.
10.11 RULES OF CONSTRUCTION. Unless the context otherwise requires, references to sections or subsections refer to sections or subsections of this Agreement.
10.12 ENTIRE AGREEMENT. This Agreement is intended by the parties as a final expression of their agreement and intended to be a complete and exclusive statement of the agreement and understanding of the parties hereto with respect to the subject matter contained herein. There are no restrictions, promises, representations, warranties or undertakings with respect to the subject matter contained herein, other than those set forth or referred to herein. This Agreement supersedes all prior agreements and understandings among the parties with respect to such subject matter.
10.13 FURTHER ASSURANCES. Each of the parties shall execute such documents and perform such further acts (including, without limitation, obtaining any consents, exemptions, authorizations or other actions by, or giving any notices to, or making any filings with, any governmental authority or any other Person) as may be reasonably required or desirable to carry out or to perform the provisions of this Agreement.
10.14 OTHER AGREEMENTS. Nothing contained in this Agreement shall be deemed to be a waiver of, or release from, any obligations any party hereto may have under, or any restrictions on the transfer of Registrable Securities or other securities of 22 the Company imposed by, any other agreement including, but not limited to, the Charter Documents and the Purchase Agreement.
10.15 TERMINATION. This Agreement and the obligations of the parties hereunder shall terminate upon the end of the Effectiveness Period, except for liabilities or obligations under Section 7.4 or Article VIII, all of which shall remain in effect in accordance with their terms.
IN WITNESS WHEREOF, the undersigned have executed, or have caused to be executed, this Registration Rights Agreement on the date first written above.
EVERGREEN SOLAR, INC.
By: /s/ Mark A. Farber -----------------------------------------------
Name:
Title:
PERSEUS 2000, L.L.C.
By: Perseus 2000 Management, L.L.C., its Manager
By: /s/ Philip J. Deutch
Name: Philip J. Deutch
Title: Managing Director
NTH POWER TECHNOLOGIES FUND II, LP
By: Nth Power LLC, its General Partner
By: /s/ Tim Woodward
Name: Tim Woodward
Title: Managing Director
NTH POWER TECHNOLOGIES FUND II-A, LP
By: Nth Power LLC, its General Partner
By: /s/ Tim Woodward
Name: Tim Woodward
Title: Managing Director
ROCKPORT CAPITAL PARTNERS, L.P.
By: RockPort Capital I, LLC, its General Partner
By: /s/ Charles J. McDermott
Name: Charles J. McDermott
Title: Managing Member
RP Co-Investment Fund I, L.P.
By: RP Co-Investment Fund I GP, LLC
By: /s/ Charles J. McDermott
Name: Charles J. McDermott
Title: Managing Member
MICRO-GENERATION TECHNOLOGY FUND, LLC
By: Arete Corporation, Manager
By: /s/ Robert W. Shaw, Jr.
Name: Robert W. Shaw, Jr.
Title: President
UVCC FUND II
By: Arete Venture Investors II, L.P.
By: /s/ Robert W. Shaw, Jr.
Name: Robert W. Shaw, Jr.
Title: General Partner
UVCC II PARALLEL FUND, L.P.
By: Arete Ventures L.P. III
By: /s/ Robert W. Shaw, Jr.
Name: Robert W. Shaw, Jr.
Title: General Partner
[Signature Page - Registration Rights Agreement]
CAISSE DE DEPOT ET PLACEMENT DU QUEBEC
By: /s/ Luc Charron
Name: Luc Charron
Title: Partner
By: /s/ Denis Dionne
Name: Denis Dionne Title: President CDP CAPITAL - TECHNOLOGY VENTURES U.S. FUND 2002 L.P. By: Management U.S. Fund 2002 Inc., its General Partner
By: /s/ Luc Charron
Name: Luc Charron
Title: Partner
By: /s/ Denis Dionne
Name: Denis Dionne
Title: President
BEACON POWER CORPORATION
By: /s/ F. William Capp
Name: F. William Capp
Title: President and CEO
MASSACHUSETTS TECHNOLOGY PARK CORPORATION
By: /s/ Mitchell Adams
Name: Mitchell Adams
Title: Executive Director
ZERO STAGE CAPITAL VII, L.P.
By: Zero Stage Capital Associates VII, L.P., its General Partner
By: Zero Stage Capital Associates GP VII, Inc., its General Partner
By: /s/ Paul Kelley
Name: Paul Kelley
Title: Managing Director & CEO
ZERO STAGE CAPITAL (CAYMAN) VII, L.P.
By: Zero Stage Capital Associates VII, L.P., its General Partner By: Zero Stage Capital GP VII, Inc., its General Partner
By: /s/ Paul Kelley
Name: Paul Kelley
Title: Managing Director & CEO
ZERO STAGE CAPITAL SBIC VII, L.P.
By: Zero Stage Capital SBIC VII Associates, L.P., its General Partner
By: /s/ Paul Kelley
Name: Paul Kelley
Title: Managing Director & CEO
IMPAX ENVIRONMENTAL MARKETS PLC
By: /s/ Bruce Jenkyou-Jones
Name: Bruce Jenkyou-Jones
Title: Investment Manager
MERRILL LYNCH NEW ENERGY TECHNOLOGY PLC
By: /s/ Helena Harvey
Name: Helena Harvey
Title: Company Secretary
By: /s/ Robin Batchelor
Name: Robin Batchelor
Title: Director
MLIIF NEW ENERGY FUND
By: /s/ Richard Davis
Name: Richard Davis
Title: Director
By: /s/ Robin Batchelor
Name: Robin Batchelor
Title: Director
PNE INVEST LIMITED
By: /s/ David Mitchison
Name: David Mitchison
Title: Chairman of the Board of Directors
By: /s/ Barbara Hemmi
Name: Barbara Hemmi
Title: Director
ODYSSEY FUND
By: Rockefeller & Co., Inc., its Investment Manager
By: /s/ Jeffrey P. Davis
Name: Jeffrey P. Davis Title: Chief Investment Officer
SAM PRIVATE EQUITY ENERGY FUND LP
By: SAM Equity Partners Limited, its General Partner
By: /s/ Gina Domanig
Name: Gina Domanig
Title: Director
SAM SUSTAINABILITY PRIVATE EQUITY LP
By: SAM Equity Partners Limited, its General Partner
By: /s/ Gina Domanig
Name: Gina Domanig
Title: Director
SAM SMART ENERGY
By: /s/ Declan Quilligan
Name: Declan Quilligan
Title: Director
[Signature Page - Registration Rights Agreement]