BLOOM ENERGY CORPORATION AMENDMENT NO. 3 TO EIGHTH AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
Exhibit 4.18
BLOOM ENERGY CORPORATION
AMENDMENT NO. 3 TO
EIGHTH AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
This Amendment No. 3 (the “Amendment”) to that certain Eighth Amended and Restated Registration Rights Agreement dated as of June 30, 2011 by and among Bloom Energy Corporation, a Delaware corporation (the “Company”), and the Holders named therein, and amended pursuant to that certain Amendment No. 1 to Eighth Amended and Restated Registration Rights Agreement (“Amendment No. 1”), dated December 14, 2015 and that certain Amendment No. 2 and Joinder to Eighth Amended and Restated Registration Rights Agreement (“Amendment No. 2” and, together with Amendment No. 1, the “Amendments”), dated August 4, 2016 (the “Rights Agreement”), is made and entered into as of September 20, 2016 by and among the Company and the undersigned Holders of a majority of the outstanding shares of Registrable Securities (the “Majority Holders”). Capitalized terms used in this Amendment that are not otherwise defined herein shall have the respective meanings assigned to them in the Rights Agreement.
Recitals
WHEREAS, the Company desires to amend the Rights Agreement to amend the definition of “Purchaser” set forth therein.
WHEREAS, with respect to the amendments contemplated by this Amendment, Section 19 of the Rights Agreement permits the amendment of the Rights Agreement with the written consent of the Company and the Majority Holders.
Agreement
NOW, THEREFORE, the parties hereto hereby agree as follows:
1. Amendments.
a. The defined term “Purchaser” appearing in Section 1 of the Rights Agreement shall be amended and replaced in its entirety with the following:
““Purchaser” shall mean (a) each person or entity who (i) has acquired shares of Preferred and who is a signatory to this Agreement, or (ii) acquires securities of the Company in the future pursuant to an agreement with the Company and becomes a party to this Agreement pursuant to Section 20(b) hereof, (b) each of the Acquirers, (c) each of the Investors (as defined in the 2014 NPA), (d) the Investor (as defined in the 2015 NPA), (e) the Seller (as defined in that certain Purchase and Sale of Membership Interests Agreement, dated January 29, 2016, by and between the Company and Mehetia Inc., (f) the Investors (as defined in that certain Note Purchase Agreement, dated December 11, 2015, by and between the Company and the “Investors” and “Guarantors” named therein (as amended, the “Indenture NPA”)), (g) future investors that purchase Additional Notes (as defined in that certain Indenture, dated December 15, 2015, by and among the Company, the guarantors party thereto, and U.S. Bank National
Association, as trustee and collateral agent, as amended, restated, supplemented or otherwise modified from time to time (the “Indenture”)) to be sold pursuant to Section 2.10 of the Indenture, and (h) any transferees of the holders listed in subsections (b) through (g) hereof for (y) transfers effective on or before August 4, 2016 of any Settlement Securities, or (z) transfers effective at any time of the 2014 Notes, 2015 Notes, the Additional Notes, or the Notes (as defined in the Indenture NPA, which, together with the Additional Notes are referred to herein as the “Indenture Notes”), provided that, for this subsection (h) to apply to such persons that are not already party to this Agreement, such persons must execute a joinder agreeing to become a party to the Agreement as a “Holder” hereunder and be fully bound by, and subject to, the Agreement as though it were a party thereto (each such transferee, a “Permitted Transferee”).”
2. Except as expressly set forth in this Amendment, the Rights Agreement, as amended by the Amendments, shall continue in full force and effect in accordance with its terms.
3. This Amendment may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. This Amendment shall be governed by and construed and enforced in accordance with the laws of the State of California, without reference to the conflict of laws provisions thereof.
4. Each party hereto represents and warrants that: (i) it has all necessary power and authority to enter into and perform this Amendment and (ii) this Amendment, and the Rights Agreement, constitute a valid and binding obligation which is enforceable against each party hereto in accordance with its terms (subject to applicable bankruptcy, reorganization, insolvency, moratorium or similar laws affecting creditors’ rights generally and subject to equitable principles of general application).
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2
IN WITNESS WHEREOF, the parties hereto have caused this AMENDMENT NO. 3 TO THE EIGHTH AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT to be executed as of the date first above written.
| “COMPANY” | BLOOM ENERGY CORPORATION | |||||
| a Delaware corporation | ||||||
| By: | /s/ ▇▇▇▇▇ ▇▇▇▇ | |||||
| Name: | ▇▇▇▇▇ ▇▇▇▇ | |||||
| Title: | Chief Financial Officer and Secretary | |||||
| Dated: | September 20, 2016 | |||||
(Signature Page to the Amendment No. 3 to the 8th AR Registration Rights Agreement)
IN WITNESS WHEREOF, the parties hereto have caused this AMENDMENT NO. 3 TO THE EIGHTH AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT to be executed as of the date first above written.
| “HOLDERS” | ||||||
| CANADA PENSION PLAN | ||||||
| Date: September 20, 2016 | INVESTMENT BOARD | |||||
| By: | /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ | |||||
| Name: | ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ | |||||
| Title: | Managing Director, Head of Relationship Investments | |||||
IN WITNESS WHEREOF, the parties hereto have caused this AMENDMENT NO. 3 TO THE EIGHTH AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT to be executed as of the date first above written.
| “HOLDERS” | ||||||
| 1536057 ALBERTA LTD. | ||||||
| By: | /s/ ▇▇▇▇▇ ▇▇▇▇ | |||||
| Name: | ▇▇▇▇▇ ▇▇▇▇ | |||||
| Title: | SVP, Private Equity | |||||
| Dated: | Sept. 14, 2016 | |||||
| 1536053 ALBERTA LTD. | ||||||
| By: | /s/ ▇▇▇▇▇ ▇▇▇▇ | |||||
| Name: | ▇▇▇▇▇ ▇▇▇▇ | |||||
| Title: | SVP, Private Equity | |||||
| Dated: | Sept. 14, 2016 | |||||
(Signature Page to the Amendment No. 3 to the 8th AR Registration Rights Agreement)
IN WITNESS WHEREOF, the parties hereto have caused this AMENDMENT NO. 3 TO THE EIGHTH AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT to be executed as of the date first above written.
“HOLDERS”
| Date: 9.16.16 | DAG VENTURES GP GROUP | |||||
| By: | DAG Ventures Management LLC, its Managing Member | |||||
| By: | /s/ ▇▇▇▇ ▇▇▇▇▇▇▇ | |||||
| Name: | ▇▇▇▇ ▇▇▇▇▇▇▇ | |||||
| Title: |
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| Date: 9.16.16 | DAG VENTURES COINVESTMENT FUND – AM, L.P. | |||||
| By: | DAG Ventures Management LLC, its Managing Member | |||||
| By: | /s/ ▇▇▇▇ ▇▇▇▇▇▇▇ | |||||
| Name: | ▇▇▇▇ ▇▇▇▇▇▇▇ | |||||
| Title: |
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| Date: 9.16.16 | DAG VENTURES COINVESTMENT FUND –▇▇▇▇▇▇▇▇▇ EQUITY PARTNERS, L.P. AND ▇▇▇▇▇▇▇▇▇ EQUITY ADVISORS L.P. | |||||
| By: | DAG Ventures Management LLC, its General Partner | |||||
| By: | /s/ ▇▇▇▇ ▇▇▇▇▇▇▇ | |||||
| Name: | ▇▇▇▇ ▇▇▇▇▇▇▇ | |||||
| Title: |
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(Signature Page to the Amendment No. 3 to the 8th AR Registration Rights Agreement)
IN WITNESS WHEREOF, the parties hereto have caused this AMENDMENT NO. 3 TO THE EIGHTH AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT to be executed as of the date first above written.
‘‘HOLDERS”
| Date: 9.16.16 | DAG VENTURES LLC | |||||
| By: | /s/ ▇▇▇▇ ▇▇▇▇▇▇▇ | |||||
| Name: | ▇▇▇▇ ▇▇▇▇▇▇▇ | |||||
| Title: |
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| Date: 9.16.16 | DAG VENTURES HOLDINGS LLC | |||||
| By: | DAG Ventures LLC, its Manager | |||||
| By: | /s/ ▇▇▇▇ ▇▇▇▇▇▇▇ | |||||
| Name: | ▇▇▇▇ ▇▇▇▇▇▇▇ | |||||
| Title: |
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| Date: 9.16.16 | DAG VENTURES QP, L.P. | |||||
| By: | DAG Ventures Management LLC, its General Partner | |||||
| By: | /s/ ▇▇▇▇ ▇▇▇▇▇▇▇ | |||||
| Name: | ▇▇▇▇ ▇▇▇▇▇▇▇ | |||||
| Title: |
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| Date: 9.16.16 | DAG VENTURES L.P. | |||||
| By: | DAG Ventures Management LLC, its General Partner | |||||
| By: | /s/ ▇▇▇▇ ▇▇▇▇▇▇▇ | |||||
| Name: | ▇▇▇▇ ▇▇▇▇▇▇▇ | |||||
| Title: |
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(Signature Page to the Amendment No. 3 to the 8th AR Registration Rights Agreement)
IN WITNESS WHEREOF, the parties hereto have caused this AMENDMENT NO. 3 TO THE EIGHTH AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT to be executed as of the date first above written.
‘‘HOLDERS”
| Date: 9.16.16 | DAG VENTURES PARTNERS COINVESTMENT FUND | |||||
| By: | DAG Ventures Management LLC, its Managing Member | |||||
| By: | /s/ ▇▇▇▇ ▇▇▇▇▇▇▇ | |||||
| Name: | ▇▇▇▇ ▇▇▇▇▇▇▇ | |||||
| Title: |
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| Date: 9.16.16 | DAG VENTURES COINVESTMENT FUND – IA, L.P. | |||||
| By: | DAG Ventures Management LLC, its General Partner | |||||
| By: | /s/ ▇▇▇▇ ▇▇▇▇▇▇▇ | |||||
| Name: | ▇▇▇▇ ▇▇▇▇▇▇▇ | |||||
| Title: |
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| Date: 9.16.16 | DAG VENTURES COINVESTMENT FUND–II-D, L.P. | |||||
| By: | DAG Ventures Management LLC, its Managing Member | |||||
| By: | /s/ ▇▇▇▇ ▇▇▇▇▇▇▇ | |||||
| Name: | ▇▇▇▇ ▇▇▇▇▇▇▇ | |||||
| Title: |
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(Signature Page to the Amendment No. 3 to the 8th AR Registration Rights Agreement)
IN WITNESS WHEREOF, the parties hereto have caused this AMENDMENT NO. 3 TO THE EIGHTH AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT to be executed as of the date first above written.
‘‘HOLDERS”
| Date: 9.16.16 | DAG VENTURES COINVESTMENT FUND – ▇▇▇▇▇ RIVER II, LLC | |||||
| By: | DAG Ventures Management LLC, its Managing Member | |||||
| By: | /s/ ▇▇▇▇ ▇▇▇▇▇▇▇ | |||||
| Name: | ▇▇▇▇ ▇▇▇▇▇▇▇ | |||||
| Title: |
| |||||
(Signature Page to the Amendment No. 3 to the 8th AR Registration Rights Agreement)
IN WITNESS WHEREOF, the parties hereto have caused this AMENDMENT NO. 3 TO THE EIGHTH AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT to be executed as of the date first above written.
| “HOLDERS” | EIGHT BAR FINANCIAL PARTNERS I, LP | |||||||
| By: | /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇ | |||||||
| Print Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇ | ||||||||
| Print Title: Managing Director | ||||||||
| Dated: 9.14.16 | ||||||||
(Signature Page to the Amendment No. 3 to the 8th AR Registration Rights Agreement)
IN WITNESS WHEREOF, the parties hereto have caused this AMENDMENT NO. 3 TO THE EIGHTH AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT to be executed as of the date first above written.
| “HOLDERS” | HSBC INVESTMENT BANK HOLDINGS, PLC | |||||||
| By: | /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ | |||||||
| Print Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ | ||||||||
| Print Title: Attorney | ||||||||
| Dated: 18/9/16 | ||||||||
(Signature Page to the Amendment No. 3 to the 8lh AR Registration Rights Agreement)
IN WITNESS WHEREOF, the parties hereto have caused this AMENDMENT NO. 3 TO THE EIGHTH AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT to be executed as of the date first above written.
| “HOLDERS” | ||||||||
| KPCB HOLDINGS, INC. as nominee | ||||||||
| By: | /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ | |||||||
| Print Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ | ||||||||
| Print Title: General Counsel | ||||||||
| Dated: September 20, 2016 | ||||||||
(Signature Page to the Amendment No. 3 to the 8th AR Registration Rights Agreement)
IN WITNESS WHEREOF, the parties hereto have caused this AMENDMENT NO. 3 TO THE EIGHTH AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT to be executed as of the date first above written.
| “HOLDERS” | MEHETIA INC., a Delaware corporation | |||||||
| By: | /s/ ▇▇▇▇▇ ▇▇▇▇▇ | |||||||
| Name: ▇▇▇▇▇ ▇▇▇▇▇ | ||||||||
| Title: Vice President | ||||||||
(Signature Page to Amendment No. 3 to the 8th AR Registration Rights Agreement)
IN WITNESS WHEREOF, the parties hereto have caused this AMENDMENT NO. 3 TO THE EIGHTH AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT to be executed as of the date first above written.
| “HOLDERS” | ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ PRINCIPAL INVESTMENTS INC. | |||||||
| By: | /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ | |||||||
| Print Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ | ||||||||
| Print Title: Managing Director | ||||||||
| Dated: 9/15/16 | ||||||||
(Signature Page to the Amendment No. 3 to the 8th AR Registration Rights Agreement)
IN WITNESS WHEREOF, the parties hereto have caused this AMENDMENT NO. 3 TO THE EIGHTH AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT to be executed as of the date first above written.
| “HOLDERS” | NEW ENTERPRISE ASSOCIATES 10, LP | |||||||
| By: | NEA Partners 10, Limited Partnership its General Partner | |||||||
| By: | /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ | |||||||
| Print Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ | ||||||||
| Print Title: Chief Legal Officer/Attorney-in-Fact | ||||||||
| Dated: September 20, 2016 | ||||||||
| NEA VENTURES 2003, LIMITED PARTNERSHIP | ||||||||
| By: | /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ | |||||||
| Vice President | ||||||||
| Print Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ | ||||||||
| Dated: September 20, 2016 | ||||||||
(Signature Page to the Amendment No. 3 to the 8th AR Registration Rights Agreement)