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EXHIBIT 10.2
Execution Version
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STOCKHOLDERS AGREEMENT
EVERGREEN SOLAR, INC.
and
DC CHEMICAL CO., LTD.
Dated as of April 17, 2007
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Table of Contents
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1. Covenants of
the Purchaser.................................................
1
1.1
Standstill..........................................................
1
1.2.
Conversion of
Restricted Preferred Stock; Transfer Restrictions..... 3
2. Prohibited
Transfer........................................................
3
3. Pre-emptive
Rights.........................................................
4
4. Registrations
Upon Request.................................................
5
4.1.
Requests by The
Purchaser........................................... 5
4.2.
Withdrawal of
Requests.............................................. 8
4.3.
Deferral............................................................
8
4.4.
Registration
Statement Form.........................................
9
4.5.
Expenses............................................................
9
5. Incidental
Registrations...................................................
9
6. Registration
Procedures....................................................
11
7. Underwritten
Offerings.....................................................
16
7.1.
Underwriting
Agreement..............................................
16
7.2.
Selection of
Underwriters...........................................
17
8. Holdback
Agreements........................................................
17
9. Preparation;
Reasonable Investigation......................................
18
10. No Grant of Future
Registration Rights.....................................
18
11.
Indemnification............................................................
18
11.1. Indemnification
by the Company...................................... 18
11.2. Indemnification
by the Purchaser.................................... 19
11.3. Notices of
Claims, etc..............................................
20
11.4. Other
Indemnification...............................................
20
11.5. Indemnification
Payments............................................ 21
11.6. Other
Remedies......................................................
21
12.
Definitions................................................................
22
13.
Miscellaneous..............................................................
26
13.1. Rule 144,
etc.......................................................
26
13.2. Successors,
Assigns and Transferees.................................
26
13.3. Stock Splits,
etc................................................... 27
13.4. Amendment and
Modification.......................................... 27
13.5. Governing Law;
Jurisdiction......................................... 27
13.6. Invalidity of
Provision............................................. 28
13.7.
Notices.............................................................
28
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Table of Contents
(continued)
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13.8. Headings;
Execution in Counterparts.................................
29
13.9. Injunctive
Relief...................................................
29
13.10.
Term................................................................
29
13.11. Further
Assurances..................................................
29
13.12. Entire
Agreement....................................................
30
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STOCKHOLDERS AGREEMENT
This Stockholders Agreement (this "Agreement") is entered into as
of
April 17, 2007 by and among Evergreen Solar, Inc., a corporation
organized and
existing under the laws of the State of Delaware (the "Company"),
and DC
Chemical Co., Ltd., a Korean company (the "Purchaser"). Capitalized
terms used
herein without definition are defined in Section 12.
RECITALS
A. The Purchaser is purchasing 3,000,000 shares of Common Stock,
625
shares of Restricted Preferred Stock and 4,500,000 shares of
Restricted Common
Stock (together, the "Shares") pursuant to that certain Stock
Purchase Agreement
dated as of April 17, 2007 (the "Stock Purchase Agreement");
B. The Purchaser has made certain requests, including for
approval,
for purposes of Section 203 of the Delaware General Corporation Law
(including
any successor statute thereto "Section 203") of the transactions
pursuant to
which the Purchaser will become, together with its Affiliates, an
"interested
stockholder" within the meaning of Section 203;
C. The Board has determined that it is in the best interests of
the
Company and its stockholders to (i) issue and sell the Shares to
the Purchaser
and (ii) approve, for purposes of Section 203, the transactions
pursuant to
which the Purchaser will become an "interested stockholder" within
the meaning
of Section 203; and
D. The
Company and the Purchaser desire to make certain covenants
and agreements with one another pursuant to this Agreement.
NOW THEREFORE, in consideration of the covenants and promises
set
forth herein, and for other good and valuable consideration, the
receipt and
sufficiency of which are hereby acknowledged, the parties hereby
agree as
follows:
1.
Covenants of the Purchaser.
1.1
Standstill. During the Standstill Period, the Purchaser shall
not,
without the prior written consent of the Company or the Board:
(a) acquire, offer, seek or propose to acquire, or agree to
acquire,
directly
or indirectly (including acquiring beneficial ownership as
defined in
Rule 13d-3 under the Exchange Act), by purchase or otherwise,
any Voting
Stock or direct or indirect rights to acquire any Voting Stock,
or any
assets of the Company or of any successor to or person in
control;
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(b) make, or in any way participate in any "solicitation" of
"proxies"
to vote in favor of (as such terms are used in the rules of the
SEC), or
seek to advise or influence any person or entity with respect
to,
proposals
which have not been approved or recommended by the Board;
(c) make any public announcement regarding or submit a proposal
for
or offer
of (with or without conditions) (including to the Board), any
extraordinary transaction which, if approved and consummated, would
result
in a Sale
Transaction;
(d) form, join or in any way participate in a 13D Group in
connection
with any of the foregoing;
(e) deposit any Voting Stock in a voting trust or subject them
to
any voting
arrangements;
(f) vote or agree to vote in concert with any other person or
13D
Group for
the purpose of acquiring, holding or disposing of Voting Stock
for the
purpose of seeking to control the Board or the management of
the
company;
or
(g) direct or instruct any of its Subsidiaries, Representatives
or
Affiliates
to take any of the foregoing actions.
Notwithstanding the foregoing, this Section 1 shall not apply
to
transactions between and among the (i) the Company and the
Purchaser (including
purchases of securities pursuant to the Stock Purchase Agreement,
or Section 3
hereof) and (ii) the Purchaser and its Affiliates.
Notwithstanding the foregoing, if, at any time during the
Standstill
Period, any of the following (each a "Standstill Early Termination
Event")
occurs, the Standstill Period shall be terminated:
(i) any person or 13D Group (other than any person or 13D Group
which
includes the Purchaser, its Subsidiaries, Representatives or
Affiliates) has made an offer to acquire beneficial ownership of
Voting
Stock
representing 35% or more of the then outstanding Voting Stock;
(ii) the Company enters into any merger, sale or other business
combination transaction pursuant to which the outstanding shares of
Common
Stock
would be converted into cash and/or securities and/or property
of
another
Person or 13D Group (other than any Person or 13D Group which
includes
the Purchaser, its Subsidiaries or Representatives) such that
(x)
any such Person
or 13D Group acquires beneficial ownership of Voting Stock
representing 30% or more of the then outstanding Voting Stock; or
(y) 50%
or more of
the outstanding shares of Common Stock as of immediately prior
to such
transaction would be owned by Persons other than the then
current
holders of
shares of Common Stock and any Person or 13D Group which
includes
the Purchaser, its Subsidiaries or Representatives;
2
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(iii) the Company enters into any agreement to sell all or
substantially all of its material assets;
(iv) the Purchaser and its Affiliates no longer hold Voting
Stock
representing at least 5% of the Voting Stock then issued and
outstanding;
or
(v) a Sale Transaction closes.
1.2.
Conversion of Restricted Preferred Stock; Transfer
Restrictions.
(a) If a Conversion Event occurs before the Transfer
Restriction
Lapse
Date, the Common Stock into which each share of Restricted
Preferred
Stock
converts shall be deemed to be Restricted Common Stock.
(b) Except for Permitted Transfers, the Purchaser shall not
(and
shall not
permit any Affiliate to), directly or indirectly sell,
transfer,
pledge,
contract to sell, sell any option or contract to purchase,
purchase
any option or contract to sell, grant any option, right or
warrant to
purchase, transfer the economic risk of ownership of, or
otherwise
dispose of (each a "Transfer") in any single or series of
related
transactions Voting Stock or Voting Power to any person who,
after
consummation of such Transfer would have beneficial ownership of
Voting
Stock
representing in the aggregate 10% or more of Voting Power.
(c) Except for Transfers to Affiliates, the Purchaser shall not
(and
shall not
permit any Affiliate to), directly or indirectly, effect any
Transfer
of Restricted Common Stock or Restricted Preferred Stock until
the
Transfer Restriction Lapse Date without the prior written approval
of
the
Board.
2.
Prohibited Transfer.
(a) Any
transfer in violation of the terms of Section 1.2 above
("Prohibited Transfer") shall not be effected by the Company and
shall be
voidable at the option of the Company by its giving written notice
to the
Purchaser and the proposed transferee. Each certificate
representing Voting
Stock held by the Purchaser shall be endorsed by the Company with a
legend
reading as follows:
"THE
SHARES EVIDENCED HEREBY ARE SUBJECT TO A STOCKHOLDERS AGREEMENT
BY
AND
BETWEEN THE COMPANY AND THE HOLDER HEREOF (A COPY OF WHICH MAY
BE
OBTAINED
FROM THE COMPANY) (THE "STOCKHOLDERS AGREEMENT"), AND NO
TRANSFER
OF THE
SHARES EVIDENCED HEREBY SHALL BE EFFECTIVE EXCEPT IN COMPLIANCE
WITH THE
TERMS THEREOF."
(b) Each
certificate representing Restricted Common Stock and Restricted
Preferred Stock shall be endorsed by the Company with an additional
legend
reading as follows:
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"THE
SHARES EVIDENCED HEREBY ARE SHARES OF RESTRICTED [PREFERRED]
[COMMON]
STOCK, AND
UNTIL THE TRANSFER RESTRICTION LAPSE DATE (AS DEFINED IN THE
STOCKHOLDERS AGREEMENT) MAY NOT BE TRANSFERRED (AS DEFINED IN
THE
STOCKHOLDERS AGREEMENT) UNLESS SUCH TRANSFER IS APPROVED IN ADVANCE
IN
WRITING BY
THE BOARD OF DIRECTORS OF THE COMPANY."
(c) On the
Transfer Restriction Lapse Date or with the prior written
approval of the Board, in exchange for the surrender by the
Purchaser of one or
more certificates representing (i) Restricted Common Stock, the
Company shall
issue and deliver to the Purchaser new certificates representing
the same number
of new shares of Common Stock as the number of Restricted Common
Stock
represented by such certificates and (ii) Restricted Preferred
Stock, the
Company shall issue and deliver to the Purchaser new certificates
representing
the same number of new shares of Preferred Stock as the number of
Restricted
Preferred Stock represented by such certificates, in each case,
without the
legend set forth in Section 2(b).
3.
Pre-emptive Rights.
3.1. The
Company hereby grants to the Purchaser the right to purchase
its
share of New Securities that the Company may, from time to time,
propose to sell
and issue in each bona fide, underwritten public offering (provided
that such
public offering constitutes a "public offering" under the rules and
regulations
of the Nasdaq Global Market) (each, a "Public Offering"). The
Company may seek
an interpretive letter (a "Nasdaq Letter") from the Nasdaq Global
Market on the
issue of whether such sale constitutes a Public Offering. Such
share, for the
purposes of this pre-emptive right, is the amount described in
Section 3.3
3.2. In
the event that the Company proposes to undertake a Public
Offering, it shall give the Purchaser written notice (the "Company
Notice") of
its intention, describing the type of New Securities, the
preliminary price
range (promptly when available) and the general terms upon which
the Company
proposes to issue the same (promptly when available). When the
final terms and
conditions (including the price) of the New Securities are
determined, the
Purchaser shall be so notified and shall have the right to purchase
the
Purchaser's share of the New Issuance as determined by Section 3.3
through the
underwriters of such Public Offering, at the price and upon the
same terms and
conditions as the other purchasers purchasing New Securities in the
Public
Offering.
3.3. The
Purchaser's share of New Securities in a Public Offering shall
be
determined by multiplying the aggregate number of the New
Securities that the
Company proposes to issue and sell by a fraction, the numerator of
which is the
number of Shares held by the Purchaser immediately prior to the
issuance of the
New Securities and the denominator of which is the aggregate number
of
outstanding shares of Common Stock and Series B Preferred Stock
immediately
prior to the issuance of the New Securities. The sale to the
Purchaser of New
Securities shall occur
4
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contemporaneously with the sale to the other purchasers of New
Securities. The
Company may abandon its plan to sell the New Securities
notwithstanding the
Purchaser's intention to exercise its pre-emptive rights
hereunder.
3.4. In
the event that the Company sells and issues any New Securities
in
a manner which does not constitute a Public Offering (each
transaction, a
"Non-Public Offering"), the following provisions shall apply:
(a) On the consummation of a Non-Public Offering, the Company
shall
grant the
Purchaser the right to purchase (the "Make-up Purchase") all or
some of
that number of New Securities required for the Purchaser to,
after
giving
effect to the Make-up Purchase, maintain its Percentage of
Ownership
interest in the Company, at the price and upon the same terms
and
conditions as such Non-Public Offering; and
(b) The exercise of the Purchaser's rights under this Section
3.4
shall be
conditioned on the receipt of a Nasdaq Letter stating that any
purchase
of New Securities by the Purchaser pursuant to the pre-emptive
right in this Section
3.4 shall not require the approval of the
stockholders of the Company, unless counsel for the Company
determine such
Nasdaq
Letter to be unnecessary in order to consummate the
transaction.
(c) For the purposes of this Section 3.4, "Percentage of
Ownership"
shall mean
the number, expressed as a percentage, equal to the number of
securities
held by the Purchaser immediately prior to the issuance of the
New
Securities in such Non-Public Offering divided by the aggregate
number
of
outstanding shares of Common Stock and Series B Preferred Stock
immediately prior to such issuance.
3.5.
Notwithstanding anything to the contrary, in no event may the
Purchaser acquire New Securities pursuant to these pre-emptive
rights to the
extent that the purchase of such New Securities would constitute a
change of
control of the Company, as provided by the rules and regulations of
the Nasdaq
Global Market.
3.6. The
preemptive rights provided in this Section 3 shall terminate on
the earliest of (a) the seventh anniversary of the date hereof, (b)
the date the
Purchaser no longer holds at least 10,000,000 shares of Common
Stock of the
Company (on an as converted basis and as adjusted for stock splits,
combinations
and the like), and (c) the termination of the Supply Agreement
pursuant to
Section 8.2(d) thereof.
4.
Registrations Upon Request.
4.1.
Requests by The Purchaser.
(a) Shelf
Registration. The Company shall use its commercially reasonable
efforts to file, within (i) with respect to the Common Stock
purchased at the
Closing, fifteen days of the Closing and (ii) with respect to the
Restricted
Common Stock and Restricted Preferred Stock, within fifteen days
after the
Transfer Restriction Lapse Date
5
<PAGE>
or the date on which the Board removes the Transfer Restriction in
respect of
such Restricted Common Stock or Restricted Preferred Stock, an
automatic shelf
registration statement on Form S-3 (each an "Initial Automatic
Shelf
Registration Statement") in accordance with the requirements of the
Securities
Act and the rules and regulations of the Commission thereunder,
which shall
become effective upon filing with the Commission pursuant to Rule
462(e) under
the Securities Act, which shall contain a prospectus in such form
to permit the
Purchaser to sell all Registrable Securities at any time beginning
on or after
the effective date thereof pursuant to Rule 415 under the
Securities Act or any
successor or similar rule that may be adopted by the Commission. If
the Company
is not eligible to use an automatic shelf registration statement at
any time of
determination of eligibility, the Company shall promptly (but in
any event
within 30 days) post-effectively amend the Initial Automatic Shelf
Registration
Statement (or any Subsequent Automatic Shelf Registration Statement
(as defined
below)) or file a new registration statement on a Form S-3, in
either case so to
permit the Purchaser to sell all Registrable Securities pursuant to
Rule 415
under the Securities Act or any successor or similar rule that may
be adopted by
the Commission. The term "Shelf Registration Statement" as used
herein shall
mean the Initial Automatic Shelf Registration Statements (or any
Subsequent
Automatic Shelf Registration Statement) or any post-effective
amendment thereto
or a new registration statement so filed pursuant to this Section
4.1(a). No
other stockholder of the Company shall have any right to include
his, her or its
securities of the Company for resale under the Shelf Registration
Statement.
Upon any Shelf Registration Statement having been filed:
(i) the Company shall use its commercially reasonable efforts
to
keep such
Shelf Registration Statement continuously effective in order to
permit the
prospectus included therein to be usable by the holders of
Registrable Securities until the earlier of (w) such time as
all
Registrable Securities that could be sold under such Shelf
Registration
Statement
have been sold or are no longer outstanding and (x) three years
from the
date of filing thereof; provided that if, at the expiration of
such
three-year period, any Registrable Securities remain outstanding
and
eligible for
registration under the terms of this Agreement, the Company
shall use
its commercially reasonable efforts to file on the date of
expiration
of such three-year period a new automatic shelf registration
statement
on Form S-3 (each a "Subsequent Automatic Shelf Registration
Statement") in accordance with the requirements of the Securities
Act and
the rules
and regulations of the Commission thereunder, which shall
contain a
prospectus in such form to permit the Purchaser to sell all
Registrable Securities at any time beginning on or after the
effective
date
thereof pursuant to Rule 415 under the Securities Act or any
successor
or similar rule that may be adopted by the Commission, and to
keep such
Subsequent Automatic Shelf Registration Statement effective
until the
earlier of (y) such time as all such Registrable Securities
have
been sold,
are no longer eligible for registration under the terms of this
Agreement
or are no longer outstanding and (z) three years from the date
of filing
of the Subsequent Automatic Shelf Registration Statement;
6
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(ii) the Company shall pay the registration fee for all
Registrable
Securities
at the time of filing of the first Shelf Registration Statement
pursuant
to clause (i) of this Section 3.2 and shall not elect to pay
any
portion of
the registration fee on a deferred basis; provided that, in
connection
with any new registration statement filed after the Initial
Automatic
Shelf Registration Statements pursuant to this Section 3.2,
including
any Subsequent Automatic Shelf Registration Statement, the
Company
shall carry forward the registration fee for any unsold
Registrable Securities pursuant to Rule 457(p) (or any successor
rule)
under the
Securities Act;
(iii) if at any time following the filing of any Shelf
Registration
Statement,
the Purchaser desires to sell all or any portion of the
Registrable Securities under such Shelf Registration Statement in
an
underwritten offering, the Purchaser shall notify the Company of
such
intent at
least 20 business days prior to any such sale (any such
proposed
sale, an
"Underwritten Take-Down Transaction"), and the Company shall
prepare
and file a prospectus supplement, post-effective amendment to
the
Shelf
Registration Statement and/or Exchange Act reports incorporated
by
reference
into the Shelf Registration Statement and take such other
actions as
necessary to permit the consummation of any such Underwritten
Take-Down
Transaction;
(iv) a request for an Underwritten Take-Down Transaction for which
a
"road show" is
conducted shall be deemed a request made pursuant to
Section
4.1(b) if such Underwritten Take-Down Transaction is
consummated
as to
substantially all of the Registrable Securities requested by
the
Purchaser
to be disposed of in such Underwritten Take-Down Transaction;
and
(v) for the avoidance of doubt, the sale of Registrable
Securities
under a
Shelf Registration Statement not involving a "road show",
whether
in an
Underwritten Take-Down Transaction or pursuant to an offering
that
is not
underwritten, shall not be deemed a request made pursuant to
Section
4.1(b).
(b) Notice
of Request. At any time and from time to time, except at any
time during which a Shelf Registration Statement pursuant to
Section 4.1(a) is
effective, available for the offer and sale of Registrable
Securities, and not
subject to any stop order, injunction, or other order or
requirement of the
Commission or other governmental agency or court (such period, a
"Shelf
Effectiveness Period"), the Purchaser shall have the right to make
up to six
requests that the Company effect the registration under the
Securities Act of
all or a portion of the Registrable Securities owned by the
Purchaser, each such
request to specify the intended method or methods of disposition
thereof, which
shall include an underwritten offering. Upon any such request, the
Company shall
use its commercially reasonable efforts to effect the prompt
registration under
the Securities Act of the Registrable Securities which the Company
has been so
requested to register by the Purchaser in accordance with the
intended method or
methods of disposition of the Purchaser. Notwithstanding anything
to the
contrary herein, a request pursuant to this Section 4.1(b) shall
not count as a
request for purposes of this Section 4.1(b) unless a registration
statement with
respect thereto has
7
<PAGE>
become effective and has been kept continuously effective for a
period of at
least 180 days (or such shorter period ending on the date on which
all the
Registrable Securities covered by such registration statement have
been sold
pursuant thereto) or, if such registration statement relates to an
underwritten
offering, such longer period as in the opinion of counsel for the
underwriter or
underwriters a prospectus is required by law to be delivered in
connection with
sales of Registrable Securities by an underwriter or dealer. Should
a
registration statement not become effective, or should an
Underwritten Take-Down
Transaction for which a "road show" is conducted not be
consummated, in either
case due to the failure of the Purchaser to perform its obligations
under this
Agreement in any material respect, or in the event the Purchaser
withdraws or
does not pursue its request for registration, or an Underwritten
Take-Down
Transaction for which a "road show" is conducted, as provided in
Section 4.2
below (in each of the foregoing cases, provided that at such time
the Company is
in compliance in all material respects with its obligations under
this
Agreement), the related request shall count as a request for
purposes of this
Section 4.1(b); provided that if (i) the registration statement
does not become
effective, or such Underwritten Take-Down Transaction for which a
"road show" is
conducted is not consummated, because a material adverse change has
occurred, or
is reasonably likely to occur, in the condition (financial or
otherwise),
prospects, business, assets or results of operations of the Company
and its
subsidiaries taken as a whole subsequent to the date of the
delivery of the
notice requesting such registration, (ii) after the registration
statement has
become effective, such registration, or such Underwritten Take-Down
Transaction
for which a "road show" is conducted, is terminated as a result of
any stop
order, injunction, or other order or requirement of the Commission
or other
governmental agency or court, or (iii) the Purchaser reimburses the
Company for
any and all Registration Expenses incurred by the Company in
connection with
such request for registration, or in connection with such
Underwritten Take-Down
Transaction for which a "road show" is conducted, that was
withdrawn or not
pursued, the related request shall not count as a request for
purposes of this
Section 4.1(b).
4.2.
Withdrawal of Requests. The Purchaser shall have the right,
exercisable by written notice to the Company, to withdraw any
request for an
Underwritten Take-Down Transaction or to effect the registration of
Registrable
Securities owned by the Purchaser pursuant to Section 4.1(b);
provided that in
the case of a request pursuant to Section 4.1(b), the Purchaser
shall have such
right only at any time prior to the effective date of the related
registration
statement. Upon receipt of a notice from the Purchaser to such
effect, the
Company shall cease all efforts to obtain effectiveness of the
applicable
registration statement or effectuate the Underwritten Take-Down
Transaction, as
the case may be.
4.3. Deferral.
Notwithstanding the foregoing, but subject to the
immediately following sentence, the Company may delay by up to 60
consecutive
days, as appropriate (the "Delay Period") the filing dates of the
Initial
Automatic Shelf Registration Statements and following the effective
dates
thereof , the Company may, from time to time, suspend the
effectiveness of such
Initial Automatic Shelf Registration Statement for up to 60
consecutive days, as
appropriate (a "Suspension Period"), in each case by giving written
notice to
the Purchaser, if the Board shall have
8
<PAGE>
determined, in its reasonable judgment, that the Company shall be
required to
disclose any material corporate development which disclosure would
have a
material effect on the Company in light of its current or future
business plans
("Material Information"). Notwithstanding the foregoing to the
contrary, (i) the
total number of days in which a Delay Period or Suspension Period
is in effect
shall not, in the aggregate, exceed 120 days during any consecutive
365-day
period (the "Suspension Limit") and (ii) a Suspension Period or
Delay Period
shall not begin until 30 days after the completion of a Suspension
Period or
Delay Period. The Purchaser agrees that, upon receipt of any
written notice from
the Company of a Suspension Period, the Purchaser shall forthwith
discontinue
disposition of shares during any Suspension Period through the
Shelf
Registration until the Purchaser (i) is advised in writing by the
Company that
the use of the applicable prospectus may be resumed, (ii) has
received copies of
a supplemental or amended prospectus, if applicable, and/or (iii)
has received
copies of any additional or supplemental filings which are
incorporated or
deemed to be incorporated by reference in such prospectus. During
any Delay
Period or Suspension Period, the Purchaser agrees to maintain in
confidence and
not to disclose to any other person the fact of such Delay Period
or Suspension
Period or any other information concerning it (including, without
limitation,
the notice from the Company relating thereto) until such time as
(A) such
information becomes a matter of public record (whether by virtue of
its
inclusion in such registration statement or otherwise), or (B) the
Purchaser
shall be required to so disclose such information pursuant to
subpoena or order
of any court or other governmental agency or body having
jurisdiction over the
matter (subject to the requirements of such order, and only after
the Purchaser
shall have given the Company prompt prior written notice of such
requirement).
4.4.
Registration Statement Form. A registration requested pursuant
to
Section 4.1 shall be effected by the filing of a registration
statement on Form
S-3 (or any successor form) or, if the Company is not eligible to
use Form S-3,
another form agreed to by the Purchaser.
4.5.
Expenses. The Company shall pay, and shall be responsible for,
all
Registration Expenses in connection with the registrations and
offerings,
including underwritten offerings, that are effected pursuant to
this Section
4.5; provided that the Purchaser shall pay (a) all Registration
Expenses to the
extent required to be paid by the Purchaser under applicable law
and (b) all
underwriting discounts and commissions and transfer taxes, if any,
with respect
to Registrable Securities sold by the Purchaser.
5.
Incidental Registrations. Subject to the last sentence of this
Section
5, if the Company at any time proposes to register any of its
equity securities
under the Securities Act for sale to the public, whether for the
account of the
Company or the account of any security holder of the Company
(including, but not
limited to, a shelf registration statement on Form S-3 or any
successor form,
but other than pursuant to a registration on Form S-4 or S-8 or any
successor
form), then the Company shall give prompt written notice (but in no
event less
than 10 days prior to the initial filing with respect thereto) to
the Purchaser
regarding such proposed registration. Upon the written request of
the Purchaser
made within 5 days after the receipt of any such notice (which
request shall
specify the number of Registrable Securities intended to be
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<PAGE>
disposed of by the Purchaser and the intended method or methods of
disposition
thereof), the Company shall use its commercially reasonable efforts
to effect
the registration under the Securities Act of such Registrable
Securities in
accordance with such intended method or methods of disposition;
provided that:
(a) the Company shall not include Registrable Securities in
such
proposed
registration to the extent that the Board shall have
determined,
after
consultation with the managing underwriter for such offering,
that
it would
materially and adversely affect the offering price to include
any
Registrable Securities in such registration; provided that, in the
event
of any
such determination, the Company shall give the Purchaser notice
of
such
determination in lieu of the notice otherwise required by the
first
sentence
of this Section 5;
(b) if, at any time after giving written notice (pursuant to
this
Section 5)
of its intention to register equity securities and prior to the
effective
date of the registration statement filed in connection with
such
registration, the Company shall determine for any reason not to
register
such
equity securities, the Company may, at its election, give
written
notice of
such determination to the Purchaser and, thereupon, shall not
be
obligated
to register any Registrable Securities in connection with such
registration (but shall nevertheless pay the Registration Expenses
in
connection
therewith), without prejudice, however, to the rights of the
Purchaser
that a registration be effected under Section 4.1; and
(c) if in connection with a registration pursuant to this Section
5,
the
managing underwriter of such registration (or, in the case of
an
offering
that is not underwritten, a nationally recognized investment
banking
firm) shall advise the Company in writing (with a copy to the
Purchaser)
that the number of securities requested and otherwise proposed
to be
included in such registration exceeds the number which can be
sold
in such
offering without materially and adversely affecting the
offering
price of
the securities being sold in such registration, then in the
case
of any registration
pursuant to this Section 5, the Company shall include
in such
registration only the number which the Company is so advised
can
be sold in
such offering without such material adverse effect; provided
that in
such case it shall first include the securities, if any, being
sold by
the Company, and, second, the Registrable Securities of the
Purchaser.
The
Company shall pay all Registration Expenses in connection with
each
registration of Registrable Securities requested pursuant to this
Section 5;
provided that the Purchaser shall pay (a) all Registration Expenses
to the
extent required to be paid by the Purchaser under applicable law
and (b) all
underwriting discounts and commissions and transfer taxes, if any,
applicable to
the Registrable Securities sold in such offering. No registration
effected under
this Section 5 shall relieve the Company from its obligation to
effect any
registration under Section 4.1 or prejudice the rights of the
Purchaser under
Section 4.1 or its ability to offer and sell shares under any Shelf
Registration
Statement. Notwithstanding anything to the contrary in this Section
5,
10
<PAGE>
during any Shelf Effectiveness Period, the provisions of this
Section 5 shall
only apply in respect of registrations for underwritten offerings
for which a
"road show" is conducted.
6.
Registration Procedures. Subject to the provisions of Section
4.1(a),
including the Company's obligation to file the Initial Automatic
Shelf
Registration Statements and any Subsequent Automatic Shelf
Registration
Statement and the timing thereof as provided in Section 4.1(a), if
and whenever
the Company is required to effect the registration of any
Registrable Securities
under the Securities Act pursuant to Section 4 or Section 5, the
Company shall
promptly:
(a) prepare, and as soon as practicable, but in any event within
30
days
thereafter, file with the Commission, a registration statement
with
respect to
such Registrable Securities, make all required filings with the
NASD and
use its commercially reasonable efforts to cause such
registration statement to become and remain effective as soon
as
practicable;
(b) prepare and promptly file with the Commission such
amendments
and
post-effective amendments and supplements to such registration
statement
and the prospectus used in connection therewith and such free
writing
prospectuses under Rule 433 under the Securities Act (each, a
"Free
Writing Prospectus") and Exchange Act reports as may be necessary
to
keep such
registration statement effective for so long as is required to
comply
with the provisions of the Securities Act and to complete the
disposition of all securities covered by such registration
statement in
accordance
with the intended method or methods of disposition thereof, but
(other
than in the case of a Shelf Registration Statement) in no event
for
a period
of more than 180 days after such registration statement becomes
effective
(subject to Section 4.1(b));
(c) furnish copies of all documents proposed to be filed with
the
Commission
in connection with such registration (including any Free
Writing
Prospectus) to counsel selected by the Purchaser, and such
documents
shall be subject to the review of such counsel (which shall be
reasonably
prompt); provided that the Company shall not file any
registration statement or any amendment or post-effective amendment
or
supplement
to such registration statement or the prospectus or any
supplement
thereto or any Free Writing Prospectus or any Exchange Act
reports
(in each case relating to the disposition of Registrable
Securities) used in connection therewith to which such counsel
shall have
reasonably
objected on the grounds that such registration statement,
prospectus, supplement, Free Writing Prospectus or Exchange Act
report
does not comply
(explaining why) in all material respects with the
requirements of the Securities Act or of the rules or
regulations
thereunder;
(d) furnish to the Purchaser, without charge, such number of
conformed
copies of such registration statement and of each such
amendment
and
supplement thereto (in each case including all exhibits and
documents
filed
therewith) and such number of copies of the prospectus included
in
such
11
<PAGE>
registration statement (including each preliminary prospectus and
any
summary
prospectus), any supplement, any other prospectus filed under
Rule
424 under
the Secu
