REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT made and entered into as
of this 31st day of October, 1996, by and between NEW WORLD POWER CORPORATION,
a Delaware corporation (the "Company"), and DB POWER, INC., a Delaware
corporation (the "Holder").
BACKGROUND
Pursuant to a Conversion Agreement dated October 31,
1996 (the "Conversion Agreement"), by and among the Company and Holder, the
Company may issue certain shares of its Common Stock, $.01 par value per share
("Common Stock"), and other certain Warrants ("Warrants") which are exercisable
into shares of Common Stock of the Company.
In order to induce Holder and the Company to enter into
the foregoing transactions, the Company has agreed to provide Holder with the
rights set forth in this Agreement.
ARTICLE 1. CERTAIN DEFINITIONS.
In addition to the other terms defined in this
Agreement, the following terms shall be defined as follows:
"BROKERS' TRANSACTIONS" has the meaning ascribed to such
term pursuant to Rule 144 under the Securities Act.
"BUSINESS DAY" means any day on which the New York Stock
Exchange ("NYSE") is open for trading.
"COMMON STOCK" means any outstanding shares of Common
Stock of the Company, as well as any Shares issuable upon the exercise of the
Warrants.
"COMPANY" means New World Power Corporation, a Delaware
corporation.
"DEMAND REGISTRATIONS" mean all registrations of
Registrable Securities covered by Section 2(a).
"EXCHANGE ACT" means the Securities Exchange Act of
1934, as amended, and the rules and regulations of the SEC thereunder, all as
the same shall be in effect at the relevant time.
"HOLDER" means DB Power, Inc., a Delaware corporation,
for so long as (and to the extent that) it owns any Registrable Securities,
and each of its successors, assigns, and direct and indirect transferees who
become registered owners of Registrable Securities or securities exercisable,
exchangeable or convertible into Registrable Securities.
"MANDATORY REGISTRATION STATEMENT" means a Mandatory
Registration Statement of the Company pursuant to the provisions of Section 2(b)
of this Agreement which covers Common
Stock on an appropriate form then permitted by the SEC to be used for such
registration and the sales contemplated to be made thereby under Rule 415 under
the Securities Act, or any similar rule that may be adopted by the SEC, and all
amendments and supplements to such Registration Statement, including pre and
post-effective amendments thereto, in each case including the prospectus
contained therein, all exhibits thereto and all material incorporated by
reference therein.
"MANDATORY REGISTRATION" means a registration of Common
Stock effected pursuant to Section 2(b) hereof.
"OUTSTANDING" means with respect to any securities as of
any date, all such securities therefore issued (except any such securities
therefore canceled or held by the Company or any successor thereto whether in
its treasury or not) or any affiliate of the Company or any successor thereto
shall not be deemed "Outstanding" for the purpose of this Agreement.
"PERSON" means an individual, a partnership (general or
limited), corporation, limited liability company, joint venture, business trust,
cooperative, association or other form of business organization, whether or not
regarded as a legal entity under applicable law, a trust (inter vivos or
testamentary), an estate of a deceased, insane or incompetent person, a
quasi-governmental entity, a government or any agency, authority, political
subdivision or other instrumentality thereof, or any other entity.
"REGISTRABLE SECURITY(IES)" means all or any portion of
any shares of Common Stock issued pursuant to the Conversion Agreement , shares
of Common Stock issued upon exercise of the Warrants, and any additional shares
of Common Stock or other equity securities of the Company issued or issuable
after the date hereof in respect of any such securities (or other equity
securities issued in respect thereof) by way of a stock dividend or stock split,
in connection with a combination, exchange, reorganization, recapitalization or
reclassification of Company securities, or pursuant to a merger, division,
consolidation or other similar business transaction or combination involving the
Company; provided that: as to any particular Registrable Securities, such
securities shall cease to constitute Registrable Securities (i) when a
registration statement with respect to the sale of such securities shall have
become effective under the Securities Act and such securities shall have been
disposed of thereunder, or (ii) when and to the extent such securities are
permitted to be distributed pursuant to Rule 144 (or any successor provision to
such Rule) under the Securities Act or are otherwise freely transferable to the
public without further registration under the Securities Act, or (iii) when such
securities shall have ceased to be Outstanding and, in the case of clause (ii),
the Company shall, if requested by the Holder or Holders thereof, have delivered
to such Holder or Holders the written opinion of independent counsel to the
Company to such effect. Any time this Agreement requires the vote or consent of
the Holder of a "majority" or other stated percentage of the Registrable
Securities, the term Registrable Securities shall, solely for purposes of
calculating such vote, be deemed to include the Registrable Securities then
issuable under the Warrants and any other securities exercisable or exchangeable
for, or convertible into, Registrable Securities.
"REGISTRATION EXPENSES" means all expenses incident to
the Company's performance of or compliance with the registration requirements
set forth in this Agreement
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including, without limitation, the following: (i) the fees, disbursements and
expenses of the Company's counsel(s), accountants, and experts in connection
with the registration under the Securities Act of Registrable Securities; (ii)
all expenses in connection with the preparation, printing and filing of the
registration statement, any preliminary prospectus or final prospectus, any
other offering documents and amendments and supplements thereto, and the mailing
and delivery of copies thereof to the underwriters and dealers, if any; (iii)
the cost of printing or producing any agreement(s) among underwriters,
underwriting agreement(s) and blue sky or legal investment memoranda, any
selling agreements, and any other documents in connection with the offering,
sale or delivery of Registrable Securities to be disposed of; (iv) any other
expenses in connection with the qualification of Registrable Securities for
offer and sale under state securities laws, including the fees and disbursements
of counsel for the underwriters in connection with such qualification and in
connection with any blue sky and legal investment surveys; (v) the filing fees
incident to securing any required review by the National Association of
Securities Dealers, Inc. of the terms of the sale of Registrable Securities to
be disposed of and any blue sky registration or filing fees, and (vi) the fees
and expenses incurred in connection with the listing of Registrable Securities
on each securities exchange (or NASDAQ National Market System) on which Company
securities of the same class are then listed; PROVIDED, HOWEVER, that
Registration Expenses with respect to any registration pursuant to this
Agreement shall not include (x) expenses of any Holder's counsel, or (y) any
underwriting discounts or commissions attributable to Registrable Securities,
each of which shall be borne by the Holder.
"SEC" means the United States Securities and Exchange
Commission, or such other federal agency at the time having the principal
responsibility for administering the Securities Act.
"SECURITIES ACT" means the Securities Act or 1933, as
amended, and the rules and regulations of the SEC thereunder, all as the same
shall be in effect at the relevant time.
ARTICLE 2. DEMAND REGISTRATION, MANDATORY REGISTRATION.
(a) Demand Registration
(i) Commencing immediately, Holder or
Holders may request at any time (by written notice delivered to the Company)
that the Company register under the Securities Act all or any portion of the
Registrable Securities held by (or then issuable to) such Holder or Holders (the
"Requesting Holders") for sale in the manner specified in such notice . In each
such case, such notice shall specify the number of Registrable Securities for
which registration is requested, the proposed manner of disposition of such
securities, and the minimum price per share at which the Requesting Holders
would be willing to sell such securities in an underwritten offering. The
Company shall, within five (5) Business Days after its receipt of any Requesting
Holders' notice under this Section 2(a)(i), give written notice of such request
to all other Holders of Registrable Securities and afford them the opportunity
of including in the requested registration statement such of their Registrable
Securities as they shall specify in a written notice given to the Company within
twenty (20) days after their receipt of the Company's notice. Within ten (10)
Business Days after the expiration of such twenty (20) day period, the Company
shall notify all Holders requesting registration of (A) the aggregate number of
Registrable Securities proposed
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to be registered by all Holders, (B) the proposed filing date of the
registration statement, and (C) such other information concerning the offering
as any Holder may have reasonably requested. If the Holders of a majority in
aggregate amount of the Registrable Securities to be included in such offering
shall have requested that such offering be underwritten, the managing
underwriter for such offering shall be chosen by the holders of a majority in
aggregate amount of the Registrable Securities being registered, with the
consent of the Company, which consent shall not be unreasonably withheld, not
less than thirty-five (35) days prior to the proposed filing date stated in the
Company's notice, and the Company shall thereupon promptly notify such Holders
as to the identity of the managing underwriter, if any, for the offering. On or
before the 30th day prior to such anticipated filing date, any Holder may give
written notice to the Company and the managing underwriter specifying either
that (A) Registrable Securities of such Holder are to be included in the
underwriting, on the same terms and conditions as the securities otherwise being
sold through the underwriters under such registration or (B) such Registrable
Securities are to be registered pursuant to such registration statement and sold
in the open market without any underwriting, on terms and conditions comparable
to those normally applicable to offerings in reasonably similar circumstances,
regardless of the method of disposition originally specified in Holder's request
for registration.
(ii) Company shall use its best efforts to
file with the SEC within ninety (90) days after the Company's receipt of the
initial Requesting Holders' written notice pursuant to Section 2(a)(i), a
registration statement for the public offering and sale, in accordance with the
method of disposition specified by such Holders, of the number of Registrable
Securities specified in such notice, and thereafter use its best efforts to
cause such registration statement to become effective as quickly thereafter as
is practicable, provided that the Company may delay the filing of such
registration statement for up to an additional sixty (60) days if the Company
determines that such a delay is necessary either: (i) to obtain additional
financial statements for inclusion in such registration statement as a result of
an acquisition or probable acquisition of a "significant subsidiary" as such
term is defined by the SEC in Regulation S-X; or (ii) in order to complete or
otherwise bring to fruition a material business combination or proposed material
corporate transaction which in a pending status would render difficult the
completion of a registration statement in accordance with applicable SEC
regulations. Such registration statement may be on Form S-1 or another
appropriate form (including Form S-3) that the Company is eligible to use and
that its reasonably acceptable to the managing underwriter; PROVIDED, HOWEVER,
that if Form S-3 is used, upon the request of the managing underwriter, the
prospectus included in the registration statement shall be amplified to include
such additional information as such underwriter may reasonably request regarding
the Company, its business and management (including, without limitation, the
information called for by Items 101, 102, 103, 201, 202, 301 and 303 of
Regulation S-K under the Securities Act).
(iii) The Company shall not have any
obligation hereunder to register any Registrable Securities under this Section
2(a) unless it shall have received requests from Holders to register at least
40% of the total Registrable Securities. Further, the Holder(s) shall only have
the right to exercise their rights of demand under this Section 2(a)(i) on two
occasions.
(iv) Notwithstanding anything to the
contrary contained herein, the Company's obligation in Section 2(a)(i) above
shall extend only to the inclusion of the Registrable
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Securities in a registration statement filed under the Securities Act. The
Company shall have no obligation to assure the terms and conditions of
distribution, to obtain a commitment from an underwriter relative to the sale of
the Registrable Securities or to otherwise assume any responsibility for the
manner, price or terms of the distribution of the Registrable Securities.
(v) The Company shall not include in any
Demand Registration requested by the Holders of Registrable Securities pursuant
to Section 2(a)(i) above any securities which are not Registrable Securities
without the prior written consent of the Holders of at least a majority of the
Registrable Securities initially requesting such registration. If a Demand
Registration is an underwritten offering and the managing underwriters advise
the Company in writing that in their opinion the number of Registrable
Securities and, if permitted hereunder, other securities requested to be
included in such offering exceeds the number of Registrable Securities and other
securities, if any, which can be sold in an orderly manner in such offering
within a price range acceptable to the Holders of a majority of the Registrable
Securities requesting registration, the Company shall include in such
registration (i) first, the number of Registrable Securities requested to be
included which in the opinion of such underwriters can be sold in an orderly
manner within the price range of such offering, pro rata among the respective
Holders thereof on the basis of the amount of Registrable Securities owned by
each such Holder, and (ii) second, if all the of the Registrable Securities
requested to be included under clause (i) have been included, the number of
other securities, if any, requested to be included which in the opinion of such
underwriters can be sold in an orderly manner within the price range of such
offering, pro rata among the respective Holders thereof on the basis of the
amount of such other securities owned by each such Holder.
(vi) The Company shall not be obligated to
effect any Demand Registration within 180 days after the effective date of a
previous underwritten Demand Registration or a previous registration in which
the Holders of Registrable Securities were given piggyback rights pursuant to
Section 3 and in which there was no reduction in the number of Registrable
Securities requested to be included. The Company may postpone once for up to six
months and once for up to nine months the filing or the effectiveness of a
registration statement for a Demand Registration if the Company determines that
such Demand Registration would reasonably be expected to have an adverse effect
on any proposal or plan by the Company or any of its subsidiaries to engage in
any financing, acquisition of assets or any merger, consolidation, tender offer
or other similar transaction; provided that in such event, the Holders of
Registrable Securities initially requesting such Demand Registration shall be
entitled to withdraw such request and, if such request is withdrawn, such Demand
Registration shall not count as one of the Demand Registrations permitted to
Holders of Registrable Securities hereunder and the Company shall pay all
Registration Expenses in connection with such registration; and provided further
that the Company may exercise such right only once in any 12-month period.
(b) Mandatory Registration
(i) The Company shall file to register for
resale under the Securities Act the Registrable Securities held by (or then
issuable to) the Holders for sale pursuant to a Mandatory Registration not later
than the expiration date of the Warrants. The Company will use its best efforts
to have the Mandatory Registration declared effective as soon thereafter as is
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practicable, and to keep such Mandatory Registration (or, if applicable, a
successor Mandatory Registration filed pursuant to Section 2(b)(ii) below)
continuously effective for the earlier of a period of three years or until all
securities included in such Mandatory Registration have ceased to be Registrable
Securities (the "Lapse Date").
(ii) If the Company is precluded by Rule 415
or any other applicable rule under the Securities Act from including all
Registrable Securities in any Mandatory Registration Statement or from keeping
any Mandatory Registration Statement continuously effective from the filing date
thereof through the Lapse Date, the Company shall file such additional or
further Mandatory Registrations, as may be required, so that, subject to the
other provisions of this Agreement, all Registrable Securities requested to be
included are included on a continuously effective Mandatory Registration
Statement for substantially all of the period from the filing date of the first
Mandatory Registration Statement through the Lapse Date.
ARTICLE 3. PIGGYBACK REGISTRATIONS.
(a) RIGHT TO PIGGYBACK. If at any time after the
execution of this Registration Rights Agreement, the Company proposes to file a
registration statement under the Securities Act (except with respect to
registration statements on Forms X-0, X-0, or any other form not available for
registering the Registrable Securities for sale to the public), with respect to
an offering of Common Stock for its own account or for the account of another
person, then the Company shall in each case give written notice of such proposed
filing to the Holders of Registrable Securities at least 30 days before the
anticipated filing date of the registration statement with respect thereto (the
"Piggyback Registration"), and shall, subject to Section 2(b) and 2(c) below,
include in such Piggyback Registration such amount of Registrable Securities as
each such Holder may request within 15 days of the receipt of such notice.
(b) PRIORITY ON PRIMARY REGISTRATIONS. If a Piggyback
Registration is an underwritten primary registration on behalf of the Company,
and the managing underwriters advise the Company in writing that in their
opinion the number of securities requested to be included in such registration
exceeds the number which can be sold in an orderly manner in such offering
within a price range acceptable to the Company, the Company shall include in
such registration (i) first, the securities the Company proposes to sell, (ii)
second, the Registrable Securities requested to be included in such registration
to the extent that the number of shares to be registered will not, in the
opinion of the managing underwriters, adversely affect the offering of the
securities pursuant to clause (i), pro rata among the Holders of such
Registrable Securities on the basis of the number of shares owned by such Holder
and (iii) third, provided that all Registrable Securities requested to be
included in the registration statement have been so included, any other
securities requested to be included in such registration.
(c) PRIORITY ON SECONDARY REGISTRATIONS. If a Piggyback
Registration is an underwritten secondary registration on behalf of holders of
the Company's securities other than the Holders of Registrable Securities, and
the managing underwriters advise the Company in writing that in their opinion
the number of securities requested to be included in such registration exceeds
the number which can be sold in an orderly manner in such offering within a
price range acceptable to the holders initially requesting such registration,
the Company shall include in such
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registration (i) first, the securities requested to be included therein by the
holders requesting such registration, (ii) second, the Registrable Securities
requested to be included in such registration, to the extent that the number of
shares to be registered will not, in the opinion of the managing underwriters,
adversely affect the offering of the securities pursuant to clause (i), pro rata
among the Holders of such securities on the basis of the number of shares so
requested to be included therein owned by each such Holder, and (iii) third,
other securities requested to be included in such registration.
ARTICLE 4. HOLDBACK AGREEMENTS.
(a) Each Holder of Registrable Securities shall not
effect any public sale or distribution (including sales pursuant to Rule 144) of
equity securities of the Company, or any securities convertible into or
exchangeable or exercisable for such securities, during the 30 days prior to and
the 180-day period beginning on the effective date of any underwritten primary
registration undertaken by the Company (except as part of such underwritten
registration), unless the underwriters managing the registered public offering
otherwise agree.
(b) The Company (i) shall not effect any public sale or
distribution of its equity securities, or any securities convertible into or
exchangeable or exercisable for such securities, during the 30 days prior to and
during the 90-day period beginning on the effective date of any underwritten
Demand Registration on behalf of the Holders of Registrable Securities (except
as part of such underwritten registration or pursuant to registrations on Form
S-8 or S-4 or any successor form), unless the underwriters managing the
registered public offering otherwise agree.
ARTICLE 5. REGISTRATION PROCEDURES.
Whenever the Holders of Registrable Securities have
requested that any Registrable Securities be registered pursuant to this
Agreement, the Company shall use its best efforts to effect the registration of
the resale of such Registrable Securities and pursuant thereto the Company shall
as soon as practicable:
(a) prepare and file with the Securities and Exchange
Commission a registration statement with respect to the resale of such
Registrable Securities and use its best efforts to cause such registration
statement to become effective (provided that before filing a registration
statement or prospectus or any amendments or supplements thereto, the Company
shall furnish to the counsel selected by the Holders of a majority of the
Registrable Securities covered by such registration statement copies of all such
documents proposed to be filed, which documents shall be subject to the review
and consent of such counsel);
(b) notify each Holder of Registrable Securities of the
effectiveness of each registration statement filed hereunder and prepare and
file with the Securities and Exchange Commission such amendments and supplements
to such registration statement and the prospectus used in connection therewith
as may be necessary to keep such registration statement effective for a period
of not less than 180 days and comply with the provisions of the Securities Act
with respect to the disposition of all securities covered by such registration
statement during such
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period in accordance with the intended methods of disposition by the sellers
thereof set forth in such registration statement;
(c) furnish to each seller of Registrable Securities
such number of copies of such registration statement, each amendment and
supplement thereto, the prospectus included in such registration statement
(including each preliminary prospectus) and such other documents as such seller
may reasonably request in order to facilitate the disposition of the Registrable
Securities owned by such seller;
(d) use its best efforts to register or qualify such
Registrable Securities under such other securities or blue sky laws of such
jurisdictions as any Holder reasonably requests and do any and all other acts
and things which may be reasonably necessary or advisable to enable such seller
to consummate the disposition of the Registrable Securities owned by the sellers
in such jurisdictions (provided that the Company shall not be required to (i)
qualify generally to do business in any jurisdiction where it would not
otherwise be required to qualify but for this subparagraph, (ii) subject itself
to taxation in any such jurisdiction or (iii) consent to general service of
process in any such jurisdiction);
(e) notify each seller of such Registrable Securities,
at any time when a prospectus relating thereto is required to be delivered under
the Securities Act, of the happening of any event as a result of which the
prospectus included in such registration statement contains an untrue statement
of a material fact or omits any fact necessary to make the statements therein
not misleading, and, at the request of any such seller, the Company shall
prepare a supplement or amendment to such prospectus so that, as thereafter
delivered to the purchasers of such Registrable Securities, such prospectus
shall not contain an untrue statement of a material fact or omit to state any
fact necessary to make the statements therein not misleading;
(f) cause all such Registrable Securities to be listed
on each securities exchange on which similar securities issued by the Company
are then listed;
(g) provide a transfer agent and registrar for all such
Registrable Securities not later than the effective date of such registration
statement;
(h) enter into such customary underwriting agreements
(containing terms acceptable to the Company) as the Holders of a majority of the
Registrable Securities being sold or the underwriters, if any, reasonably
request; and
(i) make available for inspection during normal business
hours by any seller of Registrable Securities, any underwriter participating in
any disposition pursuant to such registration statement and any attorney,
accountant or other agent retained by any such seller or underwriter, all
financial and other records, pertinent corporate documents and properties of the
Company, and cause the Company's officers, directors, employees and independent
accountants to supply all information reasonably requested by any such seller,
underwriter, attorney, accountant or agent in connection with such registration
statement.
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ARTICLE 6. REGISTRATION EXPENSES.
All Registration Expenses in connection with any of the
registration events identified within this Agreement shall be borne by the
Company. All other expenses shall be borne by the Holders.
ARTICLE 7 INDEMNIFICATION.
(a) The Company agrees to indemnify, to the extent
permitted by law, each Holder of Registrable Securities, its officers and
directors and each Person who controls such Holder (within the meaning of the
Securities Act) against all losses, claims, damages, liabilities and expenses
caused by any untrue statement of material fact contained in any registration
statement, prospectus or preliminary prospectus or any amendment thereof or
supplement thereto or any omission of a material fact required to be stated
therein or necessary to make the statements therein not misleading, except
insofar as the same are caused by or contained in any information furnished to
the Company by such Holder for use therein or by such Holder's failure to
deliver a copy of the registration statement or prospectus or any amendments or
supplements thereto after the Company has furnished such holder with a
sufficient number of copies of the same. In connection with an underwritten
offering, the Company shall provide reasonable and customary indemnification to
such underwriters, their officers and directors and each Person who controls
such underwriters (within the meaning of the Securities Act) to the same extent
as provided above with respect to the indemnification of the Holders of
Registrable Securities.
(b) In connection with any registration statement in
which a Holder of Registrable Securities is participating, each such Holder
shall furnish to the Company in writing such information and affidavits as the
Company reasonably requests for use in connection with any such registration
statement or prospectus and, to the extent permitted by law, shall indemnify the
Company, its directors and officers and each Person who controls the Company
(within the meaning of the Securities Act) against any losses, claims,. damages,
liabilities and expenses resulting from any untrue or alleged untrue statement
of material fact contained in the registration statement, prospectus or
preliminary prospectus or any amendment thereof or supplement thereto or any
omission or alleged omission of a material fact required to be stated therein or
necessary to make the statements therein not misleading, but only to the extent
that such untrue statement or omission is contained in any information or
affidavit so furnished by such Holder; provided that the obligation to indemnify
shall be individual, not joint and several, for each Holder and shall be limited
to the net amount of proceeds received by such Holder from the sale of
Registrable Securities pursuant to such registration statement.
(c) Any Person entitled to indemnification hereunder
shall (i) give prompt written notice to the indemnifying party of any claim with
respect to which it seeks indemnification (provided that the failure to give
prompt notice shall not impair any Person's right to indemnification hereunder
to the extent such failure has not prejudiced the indemnifying party) and (ii)
unless in such indemnified party's reasonable judgment a conflict of interest
between such indemnified and indemnifying parties may exist with respect to such
claim, permit such indemnifying party to assume the defense of such claim with
counsel reasonably satisfactory to the indemnified party. If such defense is
assumed, the indemnifying party shall not be subject to any
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liability for any settlement made by the indemnified party without its consent
(but such consent shall not be unreasonably withheld). An indemnifying party who
is not entitled to, or elects not to, assume the defense of a claim shall not be
obligated to pay the fees and expenses of more than one counsel for all parties
indemnified by such indemnifying party with respect to such claim.
(d) The indemnification provided for under this
Agreement shall remain in full force and effect regardless of any investigation
made by or on behalf of the indemnified party or any officer, director or
controlling Person of such indemnified party and shall survive the transfer of
securities. The Company also agrees to make such provisions, as are reasonably
requested by any indemnified party, for contribution to such party in the event
the Company's indemnification is unavailable for any reason.
ARTICLE 8 OBLIGATION OF HOLDERS.
(a) In connection with each registration hereunder, each
selling Holder will furnish to the Company in writing such information with
respect to such seller and the securities held by such seller, and the proposed
distribution by them as shall be reasonably requested by the Company in order to
assure compliance with federal and applicable state securities laws, as a
condition precedent to including such seller's Registrable Securities in the
registration statement. Each selling Holder also shall agree to promptly notify
the Company of any changes in such information included in the registration
statement or prospectus as a result of which there is an untrue statement of
material fact or an omission to state any material fact required or necessary to
be stated therein in order to make the statements contained therein not
misleading in light of the circumstances then existing.
(b) In connection with each registration pursuant to
this Agreement, the Holders included therein will not effect sales thereof until
notified by the Company of the effectiveness of the registration statement, and
thereafter will suspend such sales after receipt of telegraphic or written
notice from the Company to suspend sales to permit the Company to correct or
update a registration statement or prospectus. At the end of any period during
which the Company is obligated to keep a registration statement current, the
Holders included in said registration statement shall discontinue sales of
shares pursuant to such registration statement upon receipt of notice from the
Company of its intention to remove from registration the shares covered by such
registration statement which remain unsold, and such Holders shall notify the
Company of the number of shares registered which remain unsold immediately upon
receipt of such notice from the Company.
ARTICLE 9 INFORMATION BLACKOUT.
(a) At any time when a registration statement effected
pursuant to this Agreement relating to Registrable Securities is effective, upon
written notice from the Company to the Holders that the Company has determined
in good faith that sale of Registrable Securities pursuant to the registration
statement would require disclosure of non-public material information not
otherwise required to be disclosed under applicable law (an "Information
Blackout"), all Holders shall suspend sales of Registrable Securities pursuant
to such registration statement until the earlier of:
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(i) sixty (60) days after the Company makes
such good faith determination; and
(ii) such time as the Company notifies the
Holders that such material information has been disclosed to the public or has
ceased to be material or that sales pursuant to such registration statement may
otherwise be resumed (the number of days from such suspension of sales by the
Holders until the day when such sale may be resumed hereunder is hereinafter
called a "Sales Blackout Period").
(b) Notwithstanding the foregoing, there shall be no
more than four (4) Information Blackouts during the term of this Agreement and
no Sales Blackout Period shall continue for more than sixty (60) consecutive
days.
ARTICLE 10 MISCELLANEOUS.
(a) GOVERNING LAW. This Agreement shall be governed by
and construed in accordance with the laws of the State of Delaware without
regard to that state's conflict of laws provisions.
(b) COUNTERPARTS. This Agreement may be signed in
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument.
(c) AMENDMENTS AND WAIVERS. Except as otherwise provided
herein, the provisions of this Agreement may not be amended, modified or
supplemented, and waivers or consents to departures from the provisions hereof
may not be given without the written consent of the Company and the Holders.
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(d) NOTICES. All notices, advices and communications
under this Agreement shall be deemed to have been given, (i) in the case of
personal delivery, on the date of such delivery and (ii) in the case of mailing,
on the third business day following the date of such mailing, addressed as
follows:
If to the Company:
The New World Power Corporation
000 Xxxx Xxxx Xxxx
Xxxx Xxxx Xxxxxxxxxxx 00000
Attn: Chief Executive Officer
With a Copy to:
Xxxx X. Xxxxx, Esquire
Olsham Xxxxxxxx Frome & Xxxxxxxxxx LLP
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
and to the Holder:
000 Xxx Xxxxx Xxxx
Xxxxxxx, Xxxxxx
Xxxxxx X0X 0X0
With a Copy to:
Xxxxxx X. Xxxxx, Esquire
Xxxxxxxx Xxxxxxxxx Professional Corporation
Two Xxxxx Square, 00xx Xxxxx
00xx & Xxxx Xxxxxxx
Xxxxxxxxxxxx, XX 00000-0000
Either of NWP or the Holder may from time to time change the address to which
notices to it are to be mailed hereunder by notice in accordance with the
provisions of this Article 10.
(e) HEADINGS. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning hereof.
(f) ENTIRE AGREEMENT; SURVIVAL; TERMINATION. This
Agreement is intended by the parties as a final expression of their agreement
and intended to be a complete and exclusive statement of the agreement and
understanding of the parties hereto in respect of the subject matter
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contained herein. There are no restrictions, promises, warranties or
undertakings, other than those set forth or referred to herein. This Agreement
supersedes all prior agreements and understandings between the parties with
respect to such subject matter.
IN WITNESS WHEREOF, intending to be legally bound
hereby, the parties have executed this Agreement as of the date first written
above.
THE NEW WORLD POWER CORPORATION
("Company")
By: /S/ XXXX X. XXXXX
--------------------------------
Name:Xxxx X. Xxxxx
Title:Chairman
/S/ XXXXXX XXXXXX
--------------------------------
Xxxxxx Xxxxxx
Interim CEO
DB POWER, INC.
("Holder")
By: /S/ XXXXXX X. XXXXXXXXX
--------------------------------
Name:Xxxxxx X. Xxxxxxxxx
Title: President
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NOTICE SCHEDULE:
LIST OF HOLDERS:
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