Exhibit 10.21
EXECUTION COPY
REGISTRATION RIGHTS AGREEMENT
June 29, 2005
XX XXXXX & CO., LLC
As Representative of the several Initial Purchasers
c/o XX Xxxxx & Co., LLC
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Ladies and Gentlemen:
Evergreen Solar, Inc., a Delaware corporation (the "Company"), proposes to
issue and sell to the several initial purchasers (the "Initial Purchasers")
named in Schedule A to a Purchase Agreement dated June 23, 2005 between the
Company and the Initial Purchasers (the "Purchase Agreement"), upon the terms
set forth in the Purchase Agreement, its 4.375% Convertible Subordinated Notes
due 2012 (the "Notes").
As an inducement to the Initial Purchasers to enter into the Purchase
Agreement and in satisfaction of a condition to their obligations thereunder,
the Company agrees with each of the Initial Purchasers, for the benefit of the
Holders (as defined below), as follows:
1. DEFINITIONS.
(a) Unless the context otherwise requires, the terms defined in this
Section 1 shall have the meanings herein specified for all purposes of
this Agreement, applicable to both the singular and plural forms of any of
the terms herein defined.
"Additional Interest Accrual Period" has the meaning set forth in
Section 3 hereof.
"Additional Interest Amount" has the meaning set forth in Section 3
hereof.
"Additional Interest Payment Date" means each July 1 and January 1.
"Affiliate" means, with respect to any specified person, an
"affiliate," as defined in Rule 144, of such person.
"Amendment Effectiveness Deadline Date" has the meaning set forth in
Section 2(d) hereof.
"Business Day" means each Monday, Tuesday, Wednesday, Thursday and
Friday that is not a day on which banking institutions in The City of New
York are authorized or obligated by law or executive order to close.
"Change in Control" has the meaning assigned such term in the
Indenture.
"Closing Date" means the original issuance date of the Notes
pursuant to the Indenture.
"Commission" means the Securities and Exchange Commission.
"Common Stock" means the common stock, par value $0.01 per share, of
the Company, and any other stock as may constitute "Common Stock" for the
purposes of the Indenture, including the Underlying Shares.
"Company" has the meaning set forth in the first paragraph of this
Agreement until a successor shall have become such pursuant to the
Indenture, after which the term "Company" shall mean such successor.
"Conversion Price" has the meaning assigned such term in the
Indenture.
"Deferral Notice" has the meaning set forth in Section 4(h) hereof.
"Deferral Period" has the meaning set forth in Section 4(h) hereof.
"Effectiveness Deadline Date" has the meaning set forth in Section
2(a) hereof.
"Effectiveness Period" means the period commencing on the date the
Initial Shelf Registration Statement is declared effective and ending on
the date that all of the Notes and the Underlying Shares 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 promulgated
thereunder.
"Filing Deadline Date" has the meaning set forth in Section 2(a)
hereof.
"Holder" means a Person who owns, beneficially or otherwise,
Registrable Securities.
"Holders' Information" has the meaning set forth in Section 7(a)
hereof.
"Indenture" means the Indenture dated as of June 29, 2005 between
the Company and the Trustee, pursuant to which the Notes are being issued,
as originally executed or as it may from time to time be supplemented or
amended by one or more
indentures supplemental thereto entered into pursuant to the applicable
provisions thereof.
"Initial Purchasers" has the meaning set forth in the first
paragraph hereof.
"Initial Shelf Registration Statement" has the meaning set forth in
Section 2(a) hereof.
"Inspector" has the meaning set forth in Section 4(p) hereof.
"Material Event" has the meaning set forth in Section 4(h) hereof.
"Notes" has the meaning set forth in the first paragraph of this
Agreement.
"Notice and Questionnaire" means a written notice delivered to the
Company containing the information called for by the Notice of
Registration Statement and Selling Securityholder Questionnaire attached
as Appendix A to the Offering Circular, as such notice may be amended by
the Company upon the advice of counsel experienced in such matters, to the
extent reasonably necessary to ensure compliance with applicable law.
"Notice Holder" means, on any date, any Holder that has delivered a
properly completed and signed Notice and Questionnaire to the Company on
or prior to such date.
"Offering Circular" means that certain confidential offering
circular of the Company dated June 23, 2005 related to the Notes and any
amendments or supplements thereto.
"Prospectus" means the prospectus included in any Registration
Statement (including, without limitation, a prospectus that discloses
information previously omitted from a prospectus filed as part of an
effective registration statement in reliance upon Rule 430A promulgated
under the Securities Act), as amended or supplemented by any amendment or
prospectus supplement, including post-effective amendments, and all
materials incorporated by reference or explicitly deemed to be
incorporated by reference in such Prospectus.
"Public Acquiror Common Stock" has the meaning assigned such term in
the Indenture.
"Purchase Agreement" has the meaning set forth in the first
paragraph hereof.
"Record Holder" means with respect to any Additional Interest
Payment Date relating to any Notes or Underlying Shares as to which any
Additional Interest Amount
has accrued, the registered holder of such Note or Underlying Shares on
the June 15 immediately preceding an Additional Interest Payment Date
occurring on an July 1 and on the December 15 immediately preceding an
Additional Interest Payment Date occurring on an January 1.
"Registrable Securities" means the Notes until such Notes have been
converted into the Underlying Shares and at all times subsequent to any
such conversion, the Underlying Shares and any securities into or for
which such Underlying Shares have been converted or exchanged (or into
which such Notes may be converted or exchanged in accordance with the
Indenture) and any securities issued with respect thereto upon any share
dividend, split or similar event, until, in the case of any such security,
the earliest of (i) its effective registration under the Securities Act
and resale in accordance with the Registration Statement covering it, (ii)
the expiration of the holding period that would be applicable thereto for
non-Affiliates of the Company under Rule 144(k), (iii) its sale to the
public pursuant to Rule 144 (or any similar provision then in force, but
not Rule 144A), (iv) it ceases to be outstanding or (vi) June 29, 2007.
"Registration Default" has the meaning set forth in Section 3
hereof.
"Registration Rights Agreement" means this Agreement.
"Registration Statement" means any registration statement of the
Company (or any successor to the Company pursuant to a supplemental
indenture entered into in accordance with the Indenture) under the
Securities Act that covers any of the Notes or the Underlying Shares,
including the Prospectus, amendments and supplements to such registration
statement, including post-effective amendments, all exhibits and all
materials incorporated by reference or explicitly deemed to be
incorporated by reference in such registration statement.
"Rule 144" means Rule 144 under the Securities Act, as such rule may
be amended from time to time, or any similar rule or regulation hereafter
adopted by the Commission.
"Rule 144A" means Rule 144A under the Securities Act, as such rule
may be amended from time to time, or any similar rule or regulation
hereafter adopted by the Commission.
"Securities Act" means the Securities Act of 1933, as amended, and
the rules and regulations promulgated by the Commission thereunder.
"Shelf Registration Statement" has the meaning set forth in Section
2(b) hereof.
"Special Counsel" means one counsel as shall be specified in writing
to the Company by the Holders of a majority of the Registrable Securities,
which may, with the
written consent of the Holders of a majority of the Registrable Securities
(which shall not be unreasonably withheld), be another law firm
experienced in securities law matters designated by the Company. For
purposes of determining the Holders of a majority of the Registrable
Securities in this definition, Holders of Notes shall be deemed to be the
Holders of the number of Underlying Shares into which such Notes are or
would be convertible as of the date the consent is requested.
"Subsequent Shelf Registration Statement" means any additional Shelf
Registration Statement filed by the Company after the filing of the
Initial Shelf Registration Statement.
"Trustee" means U.S. Bank National Association, the trustee under
the Indenture, or any successor thereto.
"Underlying Shares" means the shares of Common Stock into which the
Notes are convertible, or that are issuable upon a conversion or
repurchase in accordance with the Indenture, or that are issued upon any
such conversion or repurchase, including the Public Acquiror Common Stock.
(b) Capitalized terms used but not specifically defined herein have the
respective meanings assigned thereto in the Purchase Agreement.
2. SHELF REGISTRATION.
(a) The Company shall within 90 days after the Closing Date (such 90th day
being the "Filing Deadline Date") file with the Commission, and thereafter
shall use its reasonable efforts to cause to be declared effective no
later than 180 days after the Closing Date (such 180th day being the
"Effectiveness Deadline Date"), a Registration Statement for an offering
to be made on a delayed or continuous basis pursuant to Rule 415 of the
Securities Act (a "Shelf Registration Statement") registering the resale
from time to time by Holders thereof of all of the Registrable Securities
(the "Initial Shelf Registration Statement"). The Initial Shelf
Registration Statement shall be on Form S-3 or, if unavailable, another
appropriate form permitting registration of the Registrable Securities for
resale by the Holders in accordance with the methods of distribution
reasonably requested by the Holders and set forth in the Initial Shelf
Registration Statement. The Company shall use its reasonable efforts to
keep the Initial Shelf Registration Statement (or any Subsequent Shelf
Registration Statement) continuously effective under the Securities Act
until the expiration of the Effectiveness Period. At the time the Initial
Shelf Registration Statement is declared effective, each Holder that
became a Notice Holder on or prior to the date five Business Days prior to
such time of effectiveness shall be named as a selling securityholder in
the Initial Shelf Registration Statement and the related Prospectus in
such a manner as to permit such Holder to
deliver such Prospectus to purchasers of Registrable Securities in
accordance with applicable law.
(b) If the Initial Shelf Registration Statement or any Subsequent Shelf
Registration Statement (with the Initial Registration Statement or any
Subsequent Shelf Registration Statement in effect at any time being
referred to as the "Shelf Registration Statement") ceases to be effective
for any reason at any time during the Effectiveness Period, the Company
shall use its reasonable efforts to obtain the prompt withdrawal of any
order suspending the effectiveness thereof, including, if reasonably
necessary, by amending the Shelf Registration Statement in a manner
reasonably expected to obtain the withdrawal of the order suspending the
effectiveness thereof, or file an additional Shelf Registration Statement
covering all of the securities that as of the date of such filing are
Registrable Securities. If a Subsequent Shelf Registration Statement is
filed, the Company shall use its reasonable efforts to cause such
Subsequent Shelf Registration Statement to become effective as promptly as
is practicable after such filing and to keep such Subsequent Shelf
Registration Statement continuously effective until the end of the
Effectiveness Period.
(c) The Company shall supplement and amend the Shelf Registration
Statement if required by the rules, regulations or instructions applicable
to the registration form used by the Company for the Shelf Registration
Statement, if required by the Securities Act or as necessary to name a
Notice Holder as a selling securityholder pursuant to Section 2(d) hereof.
(d) Each Holder agrees that if such Holder wishes to sell Registrable
Securities pursuant to a Shelf Registration Statement and related
Prospectus, it will do so only in accordance with this Section 2(d) and
Section 4(h) hereof. Each Holder who elects to sell Registrable Securities
pursuant to a Shelf Registration Statement agrees to complete and deliver
a Notice and Questionnaire to the Company and that it will be bound by the
terms and conditions of the Notice and Questionnaire and this Agreement.
From and after the date the Initial Shelf Registration Statement is
declared effective, the Company shall, promptly after the date a properly
completed and executed Notice and Questionnaire is received by the
Company, together with any other information the Company may reasonably
request following such effectiveness, or promptly after the expiration of
any Deferral Period in effect when such Notice and Questionnaire is
received by the Company, if required by applicable law, file with the
Commission a post-effective amendment to the Shelf Registration Statement
or prepare or, if otherwise, file a supplement to the related Prospectus
so that such Holder is named as a selling securityholder in the Shelf
Registration Statement and the related Prospectus in such a manner as to
permit such Holder to deliver such Prospectus to purchasers of the
Registrable Securities in accordance with applicable law and, if the
Company shall file a post-effective amendment to the Shelf Registration
Statement, shall use its reasonable
efforts to cause such post-effective amendment to be declared effective
under the Securities Act within 45 days after the date such post-effective
amendment is required by this Section 2(d) to be filed (the "Amendment
Effectiveness Deadline Date"); provided, however, that if such Notice and
Questionnaire is delivered during a Deferral Period, the Company shall so
inform the Holder delivering such Notice and Questionnaire and shall take
the actions set forth in this Section 2(d) upon expiration of such
Deferral Period in accordance with Section 4(h) hereof; and provided
further, however, that in no event shall the Company be required to file a
post-effective amendment to the Shelf Registration Statement more
frequently than once in any fiscal quarter.
Notwithstanding anything contained in this Section 2(d) to the
contrary, (i) the Company shall be under no obligation to name any Holder
that is not a Notice Holder as a selling securityholder in any
Registration Statement or related Prospectus and (ii) the Amendment
Effectiveness Deadline Date shall be extended by up to ten Business Days
from the expiration of a Deferral Period if such Deferral Period shall be
in effect on the Amendment Effectiveness Deadline Date.
3. ADDITIONAL INTEREST. The Company agree that the Holders will suffer damages,
and that it would not be feasible to ascertain the extent of such damages with
precision, if, other than as permitted hereunder, (a) the Initial Shelf
Registration Statement has not been filed on or prior to the Filing Deadline
Date, (b) the Initial Shelf Registration Statement has not been declared
effective under the Securities Act on or prior to the Effectiveness Deadline
Date or (c) the aggregate duration of Deferral Periods in any period exceeds the
number of days permitted in respect of such period pursuant to Section 4(h)
hereof.
Each event described in any of the foregoing clauses (a) through (c) is
individually referred to herein as a "Registration Default." For purposes of
this Agreement, each Registration Default shall begin on the dates set forth in
the table below and shall end on the ending dates set forth in the table below:
Type of
Registration
Default by Clause Beginning Date Ending Date
----------------- -------------- -----------
(a) the day after the Filing Deadline Date the date the Initial Shelf Registration
Statement is filed
(b) the day after the Effectiveness Deadline the date the Initial Shelf Registration
Date Statement becomes effective under the
Securities Act
(c) the date on which the aggregate duration of the termination of the Deferral Period
Deferral Periods in any period exceeds the that caused the limit on the aggregate
number of days permitted by Section 4(h) duration of Deferral Periods to be exceeded
Commencing on (and including) any date that a Registration Default has
begun and ending on (but excluding) the next date on which there are no
Registration Defaults that have occurred and are continuing (an "Additional
Interest Accrual Period"), the Company shall pay, as additional interest over
and above the interest set forth in the title of the Notes and not as a penalty,
to Record Holders of Registrable Securities an amount (the "Additional Interest
Amount") accruing, (i) for each day to and including the 90th day in such
Additional Interest Accrual Period, (A) in respect of any Note, at a rate per
annum equal to 0.25% of the aggregate principal amount of such Note and (B) in
respect of each outstanding Underlying Share that is a Registrable Security at a
rate per annum equal to 0.25% on the Conversion Price on such date, as the case
may be, and (ii) for each day from and after the 91st day in such Additional
Interest Accrual Period, (A) in respect of any Note, at a rate per annum equal
to 0.50% of the aggregate principal amount of such Note and (B) in respect of
each outstanding Underlying Share that is a Registrable Security at a rate per
annum equal to 0.50% on the Conversion Price on such date, as the case may be;
provided, however, that in the case of an Additional Interest Accrual Period
that is in effect solely as a result of a Registration Default of the type
described in clause (c) of the preceding paragraph, such Additional Interest
Amount shall be paid only to the Notice Holders (as set forth in the succeeding
paragraph) that have delivered Notices and Questionnaires that caused the
Company to incur the obligations set forth in Section 2(d) hereof, the
non-performance of which is the basis of such Registration Default. In
calculating the Additional Interest Amount on Underlying Shares on any date on
which no Notes are outstanding, the Conversion Price used shall be based on the
Conversion Price that would be in effect if the Notes were still outstanding.
Notwithstanding the foregoing, no Additional Interest Amount shall accrue as to
any Registrable Security from and after the earlier of (x) the date such
security is no longer a Registrable Security and (y) expiration of the
Effectiveness Period. The rate of accrual of the Additional Interest Amount with
respect to any period shall not exceed 0.50% per annum notwithstanding the
occurrence of multiple concurrent Registration Defaults.
The Additional Interest Amount shall accrue from the first day of each
applicable Additional Interest Accrual Period and shall be payable on each
Additional Interest Payment Date during such Additional Interest Accrual Period
(and, without duplication, on the Additional Interest Payment Date next
succeeding the end of such Additional Interest Accrual Period if such Additional
Interest Accrual Period does not end on an Additional Interest Payment Date) to
the Record Holders of the Registrable Securities entitled thereto; provided,
however, that any Additional Interest Amount accrued with respect to any Note or
portion thereof redeemed or repurchased by the Company on a redemption date or
repurchase date prior to an Additional Interest Payment Date, shall, in any such
event, be paid instead to the Holder who submitted such Note or portion thereof
for redemption or repurchase on the applicable redemption date or repurchase
date, as the case may be, on such date, unless such redemption date or
repurchase date occurs after June 15 or December 15 and on or prior to the
corresponding Additional Interest Payment Date, in which case such Additional
Interest Amount shall be paid to the Holder entitled to receive payments of
interest in respect of such Notes pursuant to the terms of the Indenture;
provided further, however, that, in the case of a Registration Default of the
type described in clause (c) of the first paragraph of this Section 3, such
Additional Interest Amount shall be paid only to the Notice Holders entitled
thereto pursuant to such first paragraph and the paragraph immediately above by
check mailed to the address set forth in the Notice and Questionnaire delivered
by such Holder. The Trustee shall be entitled, on behalf of registered holders
of Notes or Underlying Shares, to seek any available remedy for the enforcement
of the registration rights set forth in the Indenture, including for the payment
of such Additional Interest Amount. Notwithstanding the foregoing, the Company
and the Initial Purchasers agree that the sole damages payable for a violation
of the terms of the registration rights set forth herein with respect to which
an Additional Interest Amount is expressly provided shall be such Additional
Interest Amount. Nothing shall preclude any Holder from pursuing or obtaining
specific performance or other equitable relief with respect to the registration
rights granted herein.
All of the Company's obligations set forth in this Section 3 that are
outstanding with respect to any Registrable Security at the time such
Registrable Security ceases to be a Registrable Security shall survive until
such time as all such obligations with respect to such Registrable Security have
been satisfied in full (notwithstanding termination of the registration rights
granted herein).
The parties hereto agree that the Additional Interest Amount provided for
in this Section 3 constitutes a reasonable estimate of the damages that may be
incurred by Holders of Registrable Securities by reason of the failure of the
Shelf Registration Statement to be filed or declared effective or available for
effecting resales of Registrable Securities in accordance with the provisions
hereof.
4. REGISTRATION PROCEDURES. In connection with the registration obligations of
the Company under Section 2 hereof, during the Effectiveness Period, the Company
shall:
(a) Prepare and file with the Commission a Registration Statement or
Registration Statements on Form S-3, or, if unavailable, on another
appropriate form under the Securities Act available for the sale of the
Registrable Securities by the Holders thereof, in accordance with the
reasonably requested method or methods of distribution thereof, and use
its reasonable efforts to cause each such Registration Statement to become
effective and remain effective as provided herein; provided, however, that
before filing of the Initial Shelf Registration Statement with the
Commission, the Company shall furnish to the Representative (as defined in
the Purchase Agreement) of the Initial Purchasers and Special Counsel of
such offering, if any, a copy of the Initial Shelf Registration Statement
proposed to be filed at least two Business Days prior to the filing of the
Initial Shelf Registration Statement. The Company shall use its reasonable
efforts to reflect in the Initial Shelf Registration Statement, when so
filed with the Commission, such comments the Representative and the
Special Counsel may propose.
(b) Subject to Section 4(h) hereof, prepare and file with the Commission
such amendments and post-effective amendments to each Registration
Statement as may be necessary to keep such Registration Statement
continuously effective for the applicable period specified in Section 2(a)
hereof; cause the related Prospectus to be supplemented by any required
prospectus supplement, and as so supplemented to be filed pursuant to Rule
424 (or any similar provisions then in force) under the Securities Act;
and use its reasonable efforts to comply with the provisions of the
Securities Act applicable to the Company with respect to the disposition
of all securities covered by such Registration Statement during the
Effectiveness Period in accordance with the intended methods of
disposition by the sellers thereof set forth in such Registration
Statement as so amended or such Prospectus as so supplemented.
(c) As promptly as practicable, give notice to the Notice Holders and the
Special Counsel, if any, (i) when any Prospectus, Registration Statement
or post-effective amendment to a Registration Statement has been declared
effective, (ii) of any request, following the effectiveness of the Initial
Shelf Registration Statement under the Securities Act, by the Commission
or any other federal or state governmental authority for amendments or
supplements to any 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 effectiveness of any 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 threatening
of any proceeding for such purpose and (v) of the occurrence of, but not
the nature of or details concerning, a Material Event.
(d) Use its reasonable efforts to obtain the withdrawal of any order
suspending the effectiveness of a Registration Statement or the lifting of
any suspension of the qualification (or exemption from qualification) of
any of the Registrable Securities for sale in any jurisdiction in which
they have been qualified for sale, in either case as promptly as
practicable, and provide prompt notice to each Notice Holder of the
withdrawal of any such order.
(e) As promptly as practicable furnish to each Notice Holder and the
Special Counsel, upon request and without charge, at least one conformed
copy of the Registration Statement and any amendment thereto, including
exhibits and if requested, all documents incorporated or deemed to be
incorporated therein by reference.
(f) During the Effectiveness Period, deliver to each Notice Holder, in
connection with any sale of Registrable Securities pursuant to a
Registration Statement, without charge, as many copies of the Prospectus
or Prospectuses relating to such Registrable Securities (including each
preliminary prospectus) and any amendment or supplement thereto as such
Notice Holder may reasonably request; and the Company hereby consents
(except during such periods that a Deferral Notice is outstanding and has
not been revoked) to the use of such Prospectus or each amendment or
supplement thereto by each Notice Holder in connection with any offering
and sale of the Registrable Securities covered by such Prospectus or any
amendment or supplement thereto in the manner set forth therein.
(g) Prior to any public offering of the Registrable Securities pursuant to
a Registration Statement, use its reasonable efforts to register or
qualify or cooperate with the Notice Holders and the Special Counsel in
connection with the registration or qualification (or exemption from such
registration or qualification) of such Registrable Securities for offer
and sale under the securities or blue sky laws of such jurisdictions
within the United States as any Notice Holder reasonably requests in
writing (which request may be included in the Notice and Questionnaire);
prior to any public offering of the Registrable Securities pursuant to the
Shelf Registration Statement, use its reasonable efforts to keep each such
registration or qualification (or exemption therefrom) effective during
the Effectiveness Period in connection with such Notice Holder's offer and
sale of Registrable Securities pursuant to such registration or
qualification (or exemption therefrom) and do any and all other acts
reasonably necessary to legally permit the disposition in such
jurisdictions of such Registrable Securities in the manner set forth in
the relevant Registration Statement and the related Prospectus; provided,
however, that that the Company and its subsidiaries shall not be obligated
to qualify as foreign corporations in any jurisdiction in which they are
not so qualified, to file a general consent to service of process in any
jurisdiction or to subject itself to taxation in any jurisdiction in which
it is otherwise not so subject.
(h) Upon (i) the issuance by the Commission of a stop order suspending the
effectiveness of the Shelf Registration Statement or the initiation of
proceedings with respect to the Shelf Registration Statement under Section
8(d) or 8(e) of the Securities Act, (ii) the occurrence of any event or
the existence of any fact as a result of which any Registration Statement
shall 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, or any Prospectus shall 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 the light
of the circumstances under which they were made, not misleading (each a
"Material Event") or (iii) the occurrence or existence of any pending
corporate development that, in the reasonable discretion of the Company
makes it appropriate to suspend the availability of the Shelf Registration
Statement and the related Prospectus:
(A) in the case of clause (ii) above, subject to the next
sentence, as promptly as practicable prepare and file, if
necessary pursuant to applicable law, a post-effective
amendment to such Registration Statement or a supplement to
the related Prospectus or any document incorporated therein by
reference or file any other required document that would be
incorporated by reference into such Registration Statement and
Prospectus so that such Registration Statement does 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
such Prospectus does 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 the light of the circumstances under which they were made,
not misleading, as thereafter delivered to the purchasers of
the Registrable Securities being sold thereunder, and, in the
case of a post-effective amendment to a Registration
Statement, subject to the next sentence, use its reasonable
efforts to cause it to be declared effective as promptly as is
practicable; and
(B) give notice to the Notice Holders that the availability of the
Shelf Registration Statement is suspended (a "Deferral
Notice") and upon receipt of any Deferral Notice, each Notice
Holder agrees not to sell any Registrable Securities pursuant
to the Registration Statement until such Notice Holder's
receipt of copies of the supplemented or amended Prospectus
provided for in clause (i) above or it is advised in writing
by the Company that the Prospectus may be used.
The Company will use its reasonable efforts to ensure that the use
of the Prospectus may be resumed (x) in the case of clause (i) above, as
promptly as practicable, (y) in the case of clause (B) above, as soon as,
in the reasonable judgment of the Company, public disclosure of such
Material Event would not be prejudicial to or contrary to the interests of
the Company and (z) in the case of clause (iii) above, as soon as in the
reasonable discretion of the Company such suspension is no longer
appropriate. The Company shall be entitled to exercise its right under
this Section 4(h) to suspend the availability of the Shelf Registration
Statement or any Prospectus for a
period of time, not to exceed an aggregate of 30 days in any three-month
period or an aggregate of 90 days in any 12-month period (the "Deferral
Period").
(i) Cooperate with each Notice Holder to facilitate the timely preparation
and delivery of certificates representing Registrable Securities sold or
to be sold pursuant to a Registration Statement, which certificates shall
not bear any restrictive legends (unless required by applicable law) and
cause such Registrable Securities to be in such denominations as are
permitted by the Indenture and registered in such names as such Notice
Holder may request in writing at least two Business Days prior to any sale
of such Registrable Securities.
(j) Provide a CUSIP number for all Registrable Securities covered by each
Registration Statement not later than the effective date of such
Registration Statement and provide the Trustee and the transfer agent for
the Common Stock with printed certificates for the Registrable Securities
that are in a form eligible for deposit with The Depository Trust Company.
(k) Cooperate and assist in any filings required to be made with the
National Association of Securities Dealers, Inc. or the Nasdaq National
Market or any other stock exchange on which the Company's securities are
then listed or quoted.
(l) Reasonably promptly after (i) the filing of the Initial Shelf
Registration Statement and (ii) the effectiveness of the Initial Shelf
Registration Statement, announce the same, in each case by release to
Business Wire.
(m) The Company will cause the Indenture to be qualified under the Trust
Indenture Act of 1939, as amended, and the rules and regulations
promulgated by the Commission thereunder, as required by applicable law in
a timely manner.
(n) In connection with the Shelf Registration Statement and with the
Company's agreement, the Company shall enter into such customary
agreements (including, if requested, an underwriting agreement in
customary form) and take all such other action, if any, as Holders of a
majority of the Registrable Securities being sold or the managing
underwriters (if any) shall reasonably request in order to facilitate any
disposition of the Registrable Securities pursuant to the Shelf
Registration Statement.
(o) In connection with the Shelf Registration Statement, the Company shall
(i) make reasonably available for inspection during normal business hours
by a representative of, and Special Counsel acting for, Holders of a
majority of the Registrable Securities being sold, and any managing
underwriter, if any, participating in any disposition of the Registrable
Securities pursuant to the Shelf Registration Statement, all relevant
financial and other records, pertinent corporate documents and properties
of the Company and its subsidiaries and (ii) use its reasonable efforts to
have its officers, directors,
employees, accountants and counsel supply all relevant information
reasonably requested by such representative, Special Counsel or any such
underwriter (an "Inspector") in connection with the Shelf Registration
Statement; provided, however, that the Inspector shall first agree in
writing with the Company that any information that is reasonably and in
good faith designated by the Company in writing as confidential at the
time of delivery of such information shall be kept confidential by the
Inspector and shall be used solely for the purposes of exercising rights
under this Agreement, unless (A) disclosure of such information is
required by court or administrative order or is necessary to respond to
inquiries of regulatory authorities; provided, however, that the Inspector
shall as promptly as reasonably practicable, provide written notice to the
Company of any request by any such regulatory authority for any such
confidential information of the Company in order to allow the Company a
reasonable amount of time to seek an appropriate protective order to
prevent the disclosure of such information, (B) disclosure of such
information is required by law (including any disclosure requirements
pursuant to federal securities laws in connection with the filing of the
Shelf Registration Statement or the use of any Prospectus referred to in
this Agreement) or is necessary to defend a claim brought against any such
persons (e.g., to establish a "due diligence" defense), (C) such
information becomes generally available to the public other than as a
result of a disclosure or failure to safeguard by any such person or (d)
such information becomes available to any such person from a source other
than the Company and such source is not bound by a confidentiality
agreement or otherwise obligated to keep such information confidential.
(p) In connection with the Shelf Registration Statement, the Company
shall, if requested by Holders of a majority of the Registrable Securities
being sold, their Special Counsel or the managing underwriters (if any) in
connection with the Shelf Registration Statement, use its reasonable
efforts to cause (i) its counsel to deliver an opinion relating to the
Shelf Registration Statement and the Registrable Securities in customary
form, (ii) their officers to execute and deliver all customary documents
and certificates requested by Holders of a majority of the Registrable
Securities being sold, their Special Counsel or the managing underwriters
(if any) and (iii) their independent public accountants to provide a
comfort letter in customary form, subject to receipt of appropriate
documentation as contemplated, and only if permitted, by Statement of
Auditing Standards No. 72. For purposes of determining the holders of a
majority of the Registrable Securities in this Section 4(q) and Sections
4(o) and (p) hereof, Holders of Notes shall be deemed to be the Holders of
the number of Underlying Shares into which such Notes are or would be
convertible as of the relevant date.
5. HOLDERS' OBLIGATIONS. Each Holder agrees, by acquisition of the Registrable
Securities, that such Holder shall not be entitled to sell any of such
Registrable Securities pursuant to a Registration Statement or to receive a
Prospectus relating thereto, unless such Holder has furnished the Company with a
properly completed and executed Notice and Questionnaire as
required pursuant to Section 2(d) hereof (including the information required to
be included in such Notice and Questionnaire) and the information set forth in
the next sentence. Each Notice Holder agrees promptly to furnish to the Company
all information required to be disclosed in order to make the information
previously furnished to the Company by such Notice Holder not misleading and any
other information regarding such Notice Holder and the distribution of such
Registrable Securities as the Company may from time to time reasonably request.
6. REGISTRATION EXPENSES. The Company will bear all expenses incurred in
connection with the performance of its obligations under Sections 2, 3 and 4
hereof and the Company will reimburse the Holders for the reasonable fees and
disbursements, as and when incurred, of the Special Counsel acting for the
Holders in connection with the Notes and the securities to be sold pursuant to
each Registration Statement.
7. INDEMNIFICATION.
(a) The Company shall indemnify and hold harmless each Holder
(including the Initial Purchasers), its members, officers, employees,
representatives and agents and each person, if any, who controls any such
Holder within the meaning of the Securities Act (collectively, the "Holder
Indemnified Parties" and, each, a "Holder Indemnified Party") against any
loss, claim, damage or liability, joint or several, or any action in
respect thereof, to which that Holder Indemnified Party may become
subject, under the Securities Act or otherwise, insofar as such loss,
claim, damage, liability or action arises out of or is based upon (i) any
untrue statement or alleged untrue statement of a material fact contained
in any preliminary Prospectus, Registration Statement or Prospectus or in
any amendment or supplement thereto, (ii) the omission or alleged omission
to state in any preliminary Prospectus, Registration Statement or
Prospectus or in any amendment or supplement thereto a material fact
required to be stated therein or necessary to make the statements therein
not misleading or (iii) any act or failure to act, or any alleged act or
failure to act, by any Holder in connection with, or relating in any
manner to, the Notes or the offering contemplated hereby and that is
included as part of or referred to in any loss, claim, damage, liability
or action arising out of or based upon matters covered by clause (i) or
(ii) above (provided that the Company shall not be liable in the case of
any matter covered by this clause (iii) to the extent that it is
determined in a final judgment by a court of competent jurisdiction that
such loss, claim, damage, liability or action resulted directly from any
such act or failure to act undertaken or omitted to be taken by such
Holder Indemnified Party through its gross negligence or willful
misconduct) and shall reimburse each Holder Indemnified Party promptly
upon demand for any legal or other expenses reasonably incurred by that
Holder Indemnified Party in connection with investigating or preparing to
defend or defending against or appearing as a third party witness in
connection with any such loss, claim, damage, liability or action as such
expenses are incurred; provided, however, that the Company shall not be
liable in any such case to the extent that any such loss, claim, damage,
liability or action arises out of or is based upon an untrue statement or
alleged untrue statement in or omission or alleged omission from any
preliminary Prospectus, Registration Statement or Prospectus or any such
amendment or supplement in reliance upon and in conformity with written
information furnished to the Company by or on behalf of any Holder
specifically for use therein (the "Holder Information"); provided further,
however, that the foregoing indemnification agreement with respect to any
preliminary Prospectus shall not inure to the benefit of any Holder from
whom the person asserting any such loss, claim, damage or liability
purchased Registrable Securities, or any members, officers, employees,
representatives, agents or controlling persons of such Holder, if (A) a
copy of the Prospectus (as then amended or supplemented) was required by
law to be delivered to such person at or prior to the written confirmation
of the sale of Registrable Securities to such person, (B) a copy of the
Prospectus (as then amended or supplemented), excluding documents
incorporated by reference therein, was not sent or given to such person by
or on behalf of such Holder and (C) the Prospectus (as so amended or
supplemented) would have cured the defect giving rise to such loss, claim,
damage or liability.
This indemnity agreement is not exclusive and will be in addition to
any liability that the Company might otherwise have and shall not limit
any rights or remedies that may otherwise be available at law or in equity
to each Holder Indemnified Party.
(b) Each Holder Indemnified Party, severally and not jointly, shall
indemnify and hold harmless the Company, its officers, employees,
representatives and agents, each of its directors and each person, if any,
who controls the Company within the meaning of the Securities Act
(collectively, the "Company Indemnified Parties" and, each, a "Company
Indemnified Party") against any loss, claim, damage or liability, joint or
several, or any action in respect thereof, to which the Company
Indemnified Parties may become subject, under the Securities Act or
otherwise, insofar as such loss, claim, damage, liability or action arises
out of or is based upon (i) any untrue statement or alleged untrue
statement of a material fact contained in any preliminary Prospectus,
Registration Statement or Prospectus or in any amendment or supplement
thereto or (ii) the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the
statements therein not misleading, but in each case only to the extent
that the untrue statement or alleged untrue statement or omission or
alleged omission was made in reliance upon and in conformity with Holder
Information furnished to the Company by or on behalf of that Holder
specifically for use therein, and shall reimburse the Company Indemnified
Parties for any legal or other expenses reasonably incurred by such
parties in connection with investigating or preparing to defend or
defending against or appearing as third party witness in connection with
any such loss, claim, damage, liability or action as such expenses are
incurred; provided, however, that no such Holder shall be liable for any
indemnity claims hereunder in
excess of the amount of net proceeds received by such Holder from the sale
of Registrable Securities pursuant to such Registration Statement.
This indemnity agreement is not exclusive and will be in addition to
any liability that the Holders might otherwise have and shall not limit
any rights or remedies that may otherwise be available at law or in equity
to the Company Indemnified Parties.
(c) Promptly after receipt by an indemnified party under this Section 7 of
notice of any claim or the commencement of any action, the indemnified
party shall, if a claim in respect thereof is to be made against the
indemnifying party under this Section 7, notify the indemnifying party in
writing of the claim or the commencement of that action; provided,
however, that the failure to notify the indemnifying party shall not
relieve it from any liability that it may have under this Section 7 except
to the extent it has been materially prejudiced by such failure; and,
provided further, however, that the failure to notify the indemnifying
party shall not relieve it from any liability that it may have to an
indemnified party otherwise than under this Section 7. If any such claim
or action shall be brought against an indemnified party, and it shall
notify the indemnifying party thereof, the indemnifying party shall be
entitled to participate therein and, to the extent that it wishes, jointly
with any other similarly notified indemnifying party, to assume the
defense thereof with counsel reasonably satisfactory to the indemnified
party. After notice from the indemnifying party to the indemnified party
of its election to assume the defense of such claim or action, the
indemnifying party shall not be liable to the indemnified party under this
Section 7 for any legal or other expenses subsequently incurred by the
indemnified party in connection with the defense thereof other than
reasonable costs of investigation; provided, however, that any indemnified
party shall have the right to employ separate counsel in any such action
and to participate in the defense thereof but the fees and expenses of
such counsel shall be at the expense of such indemnified party unless (i)
the employment thereof has been specifically authorized by the
indemnifying party in writing, (ii) such indemnified party shall have been
advised by such counsel that there may be one or more legal defenses
available to it that are different from or additional to those available
to the indemnifying party and in the reasonable judgment of such counsel
it is advisable for such indemnified party to employ separate counsel or
(iii) the indemnifying party has failed to assume the defense of such
action and employ counsel reasonably satisfactory to the indemnified
party, in which case, if such indemnified party notifies the indemnifying
party in writing that it elects to employ separate counsel at the expense
of the indemnifying party, 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, in
connection with any one such action or separate but substantially similar
or related actions in the same jurisdiction arising out of the same
general allegations or circumstances, be liable for the reasonable fees
and expenses of more than one separate firm of attorneys at any time for
all such indemnified parties, which
firm shall be designated in writing by the Holders of a majority in
aggregate principal amount of the Registrable Securities, if the
indemnified parties under this Section 7 consist of any Holder Indemnified
Party, or by the Company if the indemnified parties under this Section 7
consist of any Company Indemnified Parties. Each indemnified party, as a
condition of the indemnity agreements contained in Sections 7(a) and 7(b)
hereof, shall use all reasonable efforts to cooperate with the
indemnifying party in the defense of any such action or claim. Subject to
the provisions of Section 7(d) hereof, no indemnifying party shall be
liable for any settlement of any such action effected without its written
consent (which consent shall not be unreasonably withheld), but if settled
with its written consent or if there be a final judgment for the plaintiff
in any such action, the indemnifying party agrees to indemnify and hold
harmless any indemnified party from and against any loss or liability by
reason of such settlement or judgment.
(d) If at any time an indemnified party shall have requested that an
indemnifying party reimburse the indemnified party for fees and expenses
of counsel, such indemnifying party agrees that it shall be liable for any
settlement of the nature contemplated by this Section 7 effected without
its written consent if (i) such settlement is entered into more than 45
days after receipt by such indemnifying party of the request for
reimbursement, (ii) such indemnifying party shall have received notice of
the terms of such settlement at least 30 days prior to such settlement
being entered into and (iii) such indemnifying party shall not have
reimbursed such indemnified party in accordance with such request prior to
the date of such settlement.
(e) If the indemnification provided for in this Section 7 is unavailable
or insufficient to hold harmless an indemnified party under Section 7(a)
or 7(b) hereof, then each indemnifying party shall, in lieu of
indemnifying such indemnified party, contribute to the amount paid or
payable by such indemnified party as a result of such loss, claim, damage
or liability, or action in respect thereof, (i) in such proportion as
shall be appropriate to reflect the relative benefits received by the
Company, on the one hand, and a Holder with respect to the sale by such
Holder of Registrable Securities, on the other hand, or (ii) if the
allocation provided by clause (i) above is not permitted by applicable
law, in such proportion as is appropriate to reflect not only the relative
benefits referred to in clause (i) above but also the relative fault of
the Company, on the one hand, and such Holder, on the other hand, with
respect to the statements or omissions that resulted in such loss, claim,
damage or liability, or action in respect thereof, as well as any other
relevant equitable considerations. The relative benefits received by the
Company, on the one hand, and a Holder, on the other hand, with respect to
such sale shall be deemed to be in the same proportion as the total net
proceeds from the offering of Registrable Securities (before deducting
expenses) received by the Company as set forth on the cover of the
Offering Circular bear to the total proceeds received by such Holder with
respect to its sale of Registrable Securities. The relative fault shall be
determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to information supplied
by the Company, on the one hand, or to any Holder Information supplied by
such Holder, on the other hand, the intent of the parties and their
relative knowledge, access to information and opportunity to correct or
prevent such untrue statement or omission. The Company and the Holders
agree that it would not be just and equitable if contributions pursuant to
this Section 7(e) were to be determined by pro rata allocation (even if
the Holders were treated as one entity for such purpose) or by any other
method of allocation that does not take into account the equitable
considerations referred to herein. The amount paid or payable by an
indemnified party as a result of the loss, claim, damage or liability, or
action in respect thereof, referred to above in this Section 7(e) shall be
deemed to include, for purposes of this Section 7(e), any legal or other
expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this Section 7(e), no Holder shall be required to contribute
any amount in excess of the amount by which the total price at which the
Registrable Securities sold by such Holder to any purchaser exceeds the
amount of any damages that such Holder has otherwise paid or become liable
to pay by reason of any untrue or alleged untrue statement or omission or
alleged omission. No person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation.
The Holders' obligations to contribute as provided in this Section 7(e)
are several, in proportion to their respective amount of Registrable
Securities they have sold pursuant to a Registration Statement, and not
joint.
8. RULES 144 AND 144A. The Company shall use its reasonable efforts to file the
reports required to be filed by each of them under the Securities Act and the
Exchange Act in a timely manner and, if at any time during the Effectiveness
Period the Company is not required to file such reports, such entity will, upon
the written request of any Holder, make publicly available other information so
long as necessary to permit sales of such Holder's securities pursuant to Rules
144 and 144A. The Company covenants that it will take such further action during
the Effectiveness Period as any Holder may reasonably request, all to the extent
required from time to time to enable such Holder to sell Registrable Securities
without registration under the Securities Act within the limitation of the
exemptions provided by Rules 144 and 144A (including, without limitation, the
requirements of Rule 144A(d)(4)). Upon the written request of any Holder, the
Company shall deliver to such Holder a written statement as to whether it has
complied with such requirements. Notwithstanding the foregoing, nothing in this
Section 8 shall be deemed to require the Company to register any of its
securities pursuant to the Exchange Act.
9. UNDERWRITTEN REGISTRATIONS. If any of the Registrable Securities covered by
the Shelf Registration Statement are to be sold in an underwritten offering
(with the prior agreement of the company, which agreement shall not be
unreasonably withheld or delayed), the investment banker or investment bankers
and manager or managers that will administer the offering will be selected by
the Holders of a majority in aggregate principal amount of such Registrable
Securities included in such offering, subject to the consent of the Company
(which shall not be unreasonably withheld or delayed), and such Holders shall be
responsible for all underwriting commissions and discounts in connection
therewith.
10. MISCELLANEOUS.
(a) AMENDMENTS AND WAIVERS. 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 the Company has
obtained the consent of Holders of a majority in aggregate principal
amount of the then outstanding Underlying Shares constituting Registrable
Securities (with Holders of Notes deemed to be the Holders, for purposes
of this Section 10(a), of the number of outstanding Underlying Shares into
which such Notes are or would be convertible as of the date on which such
consent is requested). Notwithstanding the foregoing, a waiver or consent
to depart from the provisions hereof with respect to a matter that relates
exclusively to the rights of the Holders whose Registrable Securities are
being sold pursuant to a Registration Statement and that does not directly
or indirectly affect the rights of other Holders may be given by Holders
of at least a majority of the Registrable Securities being sold by such
Holders pursuant to such Registration Statement; provided that the
provisions of this sentence may not be amended, modified or supplemented
except in accordance with the provisions of the immediately preceding
sentence.
(b) NOTICES. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand-delivery, first-class
mail, telecopier, or air courier guaranteeing overnight delivery:
(i) if to a Holder, at the most current address given by such
Holder to the Company in accordance with the provisions of
this Section 10(b), which address initially is, with respect
to each Holder, the address of such Holder maintained by the
Trustee under the Indenture, with a copy in like manner to XX
Xxxxx & Co., LLC, 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx
Xxxx 00000, Attention: Xxxx Xxxxxx, Managing Director (Fax:
212-278-4290), with a copy to XX Xxxxx & Co., LLC at the same
address, Attention: General Counsel (Fax: 000-000-0000); and
(ii) if to the Company, to Evergreen Solar, Inc., 000 Xxxxxxxx
Xxxxxx, Xxxxxxxx, Xxxxxxxxxxxxx 00000, Attention: Xxxxxxx X.
Xxxxxxxxx, Chief Financial Officer, Vice President, Treasurer
and Secretary (Fax: 000-000-0000).
All such notices and communications shall be deemed to have been
duly given: when delivered by hand, if personally delivered; one Business
Day after being delivered to a next-day air courier; three Business Days
after being deposited in the mail; and when receipt is acknowledged by the
recipient's telecopier machine, if telecopied.
(C) SUCCESSORS; PERSONS ENTITLED TO BENEFIT OF AGREEMENT. This Agreement
shall inure to the benefit of and be binding upon the Holders and the
Company and their respective assignees and successors. Any person who
purchase any Registrable Securities from the Initial Purchasers shall be
deemed, for purposes of this Agreement, to be an assignee of the Initial
Purchasers. Nothing expressed or mentioned in this Agreement is intended
or shall be construed to give any person other than the persons mentioned
in the preceding sentence any legal or equitable right, remedy or claim
under or in respect of this Agreement, or any provisions herein contained,
this Agreement and all conditions and provisions hereof being intended to
be and being for the sole and exclusive benefit of such persons and for
the benefit of no other person; provided, however, that nothing in this
Agreement shall be deemed to permit any assignment, transfer or other
disposition of Registrable Securities in violation of the terms of the
Indenture. duty as a result of this Agreement. If any transferee of any
Holder shall acquire Registrable Securities, in any manner, whether by
operation of law or otherwise, such Registrable Securities shall be held
subject to all of the terms of this Agreement, and by taking and holding
such Registrable Securities, such person shall be conclusively deemed to
have agreed to be bound by and to perform all of the terms and provisions
of this Agreement and such person shall be entitled to receive the
benefits hereof.
(d) NO INCONSISTENT AGREEMENTS. The Company has not and shall not, on or
after the date of this Agreement, enter into any agreement that is
inconsistent with the rights granted to the Holders of Registrable
Securities in this Agreement or otherwise conflicts with the provisions
hereof. Without limiting the generality of the foregoing, without the
written consent of the Holders of a majority in aggregate principal amount
of the then outstanding Registrable Securities, the Company shall not
grant to any person the right to request the Company to register any
securities of the Company under the Securities Act unless the rights so
granted are not in conflict or inconsistent with the provisions of the
Agreement. This Agreement, together with certain letters or other written
agreements between the Company and the Initial Purchasers as of the date
hereof, constitutes the entire agreement of the parties to this Agreement
and supersedes all prior written or oral and all contemporaneous oral
agreements, understandings and negotiations with respect to the subject
matter hereof.
(e) NO PIGGYBACK ON REGISTRATIONS. Neither the Company nor any of their
securityholders (other than the Holders in such capacity) shall have the
right to include any securities of the Company in the Shelf Registration
other than Registrable Securities unless otherwise agreed to by XX Xxxxx &
Co., LLC.
(f) REMEDIES. In the event of a breach by the Company or by any Holder, of
any of their obligations under this Agreement, each Holder or the Company,
as the case may be, in addition to being entitled to exercise all rights
granted by law, including recovery of damages (other than the recovery of
damages for a breach by the Company of its obligations under Section 2 or
4 hereof for which additional interest on the Notes has been paid pursuant
to Section 3 hereof), will be entitled to specific performance of its
rights under this Agreement. The Company and each Holder agree that
monetary damages would not be adequate compensation for any loss incurred
by reason of a breach by it of any of the provisions of this Agreement and
hereby further agree that, in the event of any action for specific
performance in respect of such breach, it shall waive the defense that a
remedy at law would be adequate.
(g) APPROVAL OF HOLDERS. Whenever the consent or approval of Holders of a
specified percentage of Registrable Securities is required hereunder,
Registrable Securities held by the Company or its Affiliates (other than
the Initial Purchasers or subsequent Holders if such subsequent Holders
are deemed to be such Affiliates solely by reason of their holdings of
such Registrable Securities) shall not be counted in determining whether
such consent or approval was given by the Holders of such required
percentage.
(h) Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York.
(i) Partial Unenforceability. The invalidity or unenforceability of any
Section, paragraph or provision of this Agreement shall not affect the
validity or enforceability of any other Section, paragraph or provision
hereof. If any Section, paragraph or provision of this Agreement is for
any reason determined to be invalid or unenforceable, there shall be
deemed to be made such minor changes (and only such minor changes) as are
necessary to make it valid and enforceable.
(j) General. In this Agreement, the masculine, feminine and neuter genders
and the singular and the plural include one another. The section headings
in this Agreement are for the convenience of the parties only and will not
affect the construction or interpretation of this Agreement.
(k) Counterparts. This Agreement may be signed in any number of
counterparts, each of which shall be an original, with the same effect as
if the signatures thereto and hereto were upon the same instrument.
If the foregoing is in accordance with your understanding of the agreement
between the Company and the several Initial Purchasers, kindly indicate your
acceptance in the space provided for that purpose below. Very truly yours,
EVERGREEN SOLAR, INC.
By: /s/ Xxxxxxx X. Xxxxxxxxx
---------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: CFO
Accepted as of
the date first above written:
XX XXXXX & CO., LLC
Acting on its own behalf
and as Representative of the several
Initial Purchasers referred to in the
Purchase Agreement.
By: XX XXXXX & CO., LLC
By: /s/ Xxxx Xxxxxx
---------------
Name: Xxxx Xxxxxx
Title: Managing Director
