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EXHBIT 4.2
REGISTRATION RIGHTS AGREEMENT
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THIS REGISTRATION RIGHTS AGREEMENT (this "Agreement"), dated
as of September 30, 1999, is between Advanced Lighting Technologies, Inc., an
Ohio corporation (the "Company"), and General Electric Company, a New York
corporation (the "Purchaser").
RECITIALS:
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A. Pursuant to a Stock Purchase Agreement (the "Stock Purchase
Agreement") dated September 28, 1999, between the Company and the Purchaser, the
Purchaser has agreed to purchase seven hundred sixty-one thousand two hundred
fifty (761,250) shares of Series A Convertible Preferred Stock, par value $.001,
of the Company (the "Series A Shares")
B. It is a condition to the obligations of the Purchaser under
the Stock Purchase Agreement that the parties hereto execute this Agreement.
NOW, THEREFORE, in consideration of the foregoing and the
covenants contained herein, the parties agree as follows:
1. DEFINITIONS. Capitalized terms used but not otherwise
defined herein shall have meanings assigned to such terms in the Stock Purchase
Agreement. The following terms when used in this Agreement shall have the
following meanings (such definitions to be equally applicable to the singular
and plural forms thereof):
"COMMISSION" shall mean the Securities and Exchange
Commission.
"COMMON SHARES" shall mean the common shares, par value $.001,
of the Company.
"CONTINGENT WARRANT AGREEMENT" shall mean the Contingent
Warrant Agreement in the form of Exhibit 2.2 attached to the Stock Purchase
Agreement.
"CONTINGENT WARRANTS" shall mean the warrants issued pursuant
to the Contingent Warrant Agreement.
"DEMAND REGISTRATION" shall have the meaning provided in
Section 2(a).
"PERSON" shall mean any natural person, corporation, firm,
partnership, association, government, governmental agency or other entity,
whether acting in an individual, fiduciary or other capacity.
"REGISTRABLE SECURITIES" shall mean (i) any equity securities
of the Company issued or issuable upon exercise of the option to convert the
Series A Shares issued pursuant to the Stock Purchase Agreement; (ii) any equity
securities of the Company issued or issuable
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upon exercise of the Contingent Warrants, (iii) any equity securities of the
Company issued or issuable upon exercise of the Warrant, (iv) any shares of
equity securities of the Company held as of the date hereof or acquired
hereafter by the Purchaser or any transferee, successor or assign of the
Purchaser; and (v) any equity securities of the Company issued or issuable with
respect to the securities referred to in clauses (i), (ii), (iii) or (iv) by way
of a stock dividend or stock split or in connection with a combination of
shares, recapitalization, merger, consolidation or other reorganization. As to
any particular Registrable Securities, such securities shall cease to be
Registrable Securities when they have been distributed to the public pursuant to
an offering registered under the Securities Act or sold to the public through a
broker, dealer or market maker in compliance with Rule 144 (or any similar rule
then in force). For purposes of this Agreement, a Person shall be deemed to be a
holder of Registrable Securities whenever the Person has the right to acquire,
directly or indirectly, the Registrable Securities (upon conversion or exercise
in connection with a transfer of securities or otherwise, but disregarding any
restrictions or limitations upon the exercise of such right), whether or not the
acquisition has actually been effected.
"REGISTRATION EXPENSES" shall have the meaning provided in
Section 6(a).
"RULE 144" shall mean Rule 144 promulgated under the
Securities Act.
"SECURITIES ACT" shall mean the Securities Act of 1933, as
amended.
"THIRD PARTY REGISTRABLE SECURITIES" shall mean securities
having registration rights pursuant to the Registration Rights Agreement dated
January 2, 1998, entered into in connection with the acquisition by the Company
of Ruud Lighting, Inc., and the Registration Rights Agreement dated January 28,
1998, entered into in connection with the acquisition by the Company of
Deposition Sciences, Inc.
"THIRD PARTY REGISTRATION RIGHTS" shall mean the registration
rights granted to the holders of the Third Party Registrable Securities.
"WARRANT" shall mean the warrant in the form of Exhibit 1
attached to the Stock Purchase Agreement.
"1934 ACT" shall mean the Securities Exchange Act of 1934, as
amended.
Other capitalized terms used herein shall have the meaning
assigned to them herein.
2. DEMAND REGISTRATIONS.
(a) REQUESTS FOR REGISTRATION. Subject to the terms and
conditions hereof, if the holders of Registrable Securities representing at
least either (i) an aggregate of 30% of the total of all Registrable Securities,
or (ii) Registrable Securities having a minimum anticipated aggregate offering
price of at least $7,500,000, request registration under the Securities Act of
any of their Registrable Securities on Form S-1 or any similar long-form
registration ("Long-Form Registrations") or, as provided in Section 2(c), the
holders of Registrable Securities request registration under the Securities Act
of all or part of their Registrable Securities on Form S-2 or S-3 or any similar
short-form registration ("Short-Form
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Registrations"), if available, which requests specify the approximate number of
Registrable Securities requested to be registered and the anticipated per share
price range for such offering, then within ten days after receipt of any such
request, the Company shall give written notice of such requested registration to
all other holders of Registrable Securities and shall include in the
registration all Registrable Securities with respect to which the Company has
received written requests for inclusion therein within 15 days after the receipt
of the Company's notice. All registrations requested pursuant to this Section
2(a) are referred to herein as "Demand Registrations."
(b) LONG-FORM REGISTRATIONS. The holders of Registrable
Securities shall be entitled to request one (1) Long-Form Registration in which
the Company shall pay all Registration Expenses ("Company-paid Long-Form
Registrations"). A registration shall not count as the one (1) permitted
Long-Form Registration until it has become effective, and any Company-paid
Long-Form Registration above shall not count as the one (1) permitted Long-Form
Registration unless the holders of Registrable Securities are able to register
and sell 100% of the Registrable Securities requested to be included in such
registration. Notwithstanding the foregoing, the Company shall pay all
Registration Expenses in connection with any registration initiated as a
Company-paid Long-Form Registration, whether or not it has become effective;
provided, however, that the Company shall not be required to pay the
Registration Expenses of a Long-Form Registration which is withdrawn at the
request of the holders of Registrable Securities participating in such offering.
(c) SHORT-FORM REGISTRATIONS. In addition to the Long-Form
Registration provided pursuant to Section 2(b), the holders of Registrable
Securities shall be entitled to request an unlimited number of Short-Form
Registrations, each with a minimum anticipated aggregate offering price of at
least $1,500,000 in which the Company shall pay all Registration Expenses.
Demand Registrations shall be Short-Form Registrations whenever the Company is
permitted to use any applicable short form. After the Company has become subject
to the reporting requirements of the 1934 Act, the Company shall use its best
efforts to make Short-Form Registrations available for the sale of Registrable
Securities.
(d) PRIORITY ON DEMAND REGISTRATIONS. Except as required by
the Third Party Registration Rights, the Company shall not include in any Demand
Registration any securities which are not Registrable Securities without the
prior written consent of the holders of 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 initially
requesting registration, the Company shall include in the registration, prior to
the inclusion of any securities which are not Registrable Securities, the number
of Registrable Securities requested to be included which, in the opinion of the
underwriters, can be sold in an orderly manner within the price range of the
offering, pro rata among the respective holders thereof on the basis of the
amount of Registrable Securities owned by each such holder. Any Persons other
than holders of Registrable Securities who participate in Demand Registrations
which are not at the Company's expense must pay their share of the Registration
Expenses as provided in Section 7.
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(e) RESTRICTIONS ON REGISTRATIONS. The Company shall not be
obligated to effect any Demand Registration within six months after the
effective date of a previous Demand Registration or a 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 (except to the extent permitted pursuant to
Section 2(b) with respect to a Long-Form Registration). The Company may postpone
for up to six months the filing or the effectiveness of a registration statement
for a Demand Registration if the Board of Directors of the Company determines in
good faith that it is reasonably foreseeable that the Demand Registration would
reasonably be expected to have a material adverse effect on any proposal or plan
by the Company to engage in any acquisition of assets (other than in the
ordinary course of business) or any merger, consolidation, tender offer or
similar transaction; provided, that, in such event, the holders of Registrable
Securities initially requesting the Demand Registration shall be entitled to
withdraw such request and, if such request is withdrawn, the Demand Registration
shall not count as the one (1) permitted Long-Form Registration hereunder, and
the Company shall pay all Registration Expenses in connection with the withdrawn
registration.
(f) SELECTION OF UNDERWRITERS. The holders of a majority of
the Registrable Securities initially requesting registration shall have the
right to select the investment banker(s) and manager(s) to administer the
offering, subject to the Company's approval which shall not be unreasonably
withheld.
3. PIGGYBACK REGISTRATIONS.
(a) RIGHT TO PIGGYBACK. Subject to the terms and conditions
hereof, whenever the Company proposes to register any of its securities under
the Securities Act (other than pursuant to a Demand Registration) and the
registration form to be used may be used for the registration of Registrable
Securities (a "Piggyback Registration"), the Company shall give prompt written
notice to all holders of Registrable Securities of the Company's intention to
effect such a registration and shall include in the registration all Registrable
Securities with respect to which the Company has received written requests for
inclusion therein within 15 days after the receipt of the Company's notice.
(b) PIGGYBACK EXPENSES. The Registration Expenses of the
holders of Registrable Securities shall be paid by the Company in all Piggyback
Registrations.
(c) 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, subject to the Third Party
Registration Rights, 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 the registration, pro rata among the
holders of such Registrable Securities on the basis of the number of shares
owned by each such holder, and (iii) third, other securities requested to be
included in the registration.
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(d) PRIORITY ON SECONDARY REGISTRATIONS. If a Piggyback
Registration is an underwritten secondary registration on behalf of holders of
the Company's securities and the managing underwriters advise the Company in
writing that, in their opinion, the number of securities requested to be
included in the 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 the registration, subject to the Third Party Registration Rights, the
Company shall include in such registration (i) first, the Registrable Securities
requested to be included in the registration, pro rata among the holders of such
Registrable Securities on the basis of the number of shares owned by each
holder, and (ii) second, other securities requested to be included in such
registration.
(e) SELECTION OF UNDERWRITERS. If any Piggyback Registration
is an underwritten offering, the selection of investment banker(s) and
manager(s) for the offering must be approved by the holders of a majority of the
Registrable Securities included in such Piggyback Registration, which approval
shall not be unreasonably withheld.
(f) OTHER REGISTRATIONS. If the Company has previously filed a
registration statement with respect to Registrable Securities (pursuant to
Section 2 or pursuant to this Section 3), and if such previous registration has
not been withdrawn or abandoned, the Company shall not file or cause to be
effected any other registration of any of its equity securities or securities
convertible or exchangeable into or exercisable for its equity securities under
the Securities Act (except on Form S-8 or any successor form), whether on its
own behalf or at the request of any holder or holders of such securities, until
a period of at least six months has elapsed from the effective date of the
previous registration.
4. HOLDBACK AGREEMENTS.
(a) Each holder of Registrable Securities agrees not to 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 seven days prior to and the 90-day
period or such longer period as required by the underwriters managing the
registered public offering beginning on the effective date of any underwritten
Demand Registration or underwritten Piggyback Registration in which Registrable
Securities are included (except for sales of such securities as part of such
underwritten registered offering and as otherwise permitted under Rule 144(k)),
unless the underwriters managing the registered public offering otherwise agree.
(b) The Company agrees (i) not to effect any public sale or
distribution of its equity securities, or any securities convertible into or
exchangeable or exercisable for such securities, during the seven days prior to
and during the 90-day period or such longer period as required by the
underwriters managing the registered public offering beginning on the effective
date of any underwritten Demand Registration or any underwritten Piggyback
Registration (except as part of such underwritten registration or pursuant to
registrations on Form S-8 or any successor form), unless the underwriters
managing the registered public offering otherwise agree, and (ii) to cause each
holder of its equity securities, or any securities convertible into or
exchangeable or exercisable for its equity securities, purchased from the
Company at any time after the date of this Agreement (other than in a registered
public offering) to agree not to effect any public sale or distribution
(including sales pursuant to Rule 144) of any such securities
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during such period (except as part of such underwritten registration, if
otherwise permitted), unless the underwriters managing the registered public
offering otherwise agree.
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 and the sale of such Registrable Securities in
accordance with the intended method of disposition thereof, and pursuant thereto
the Company shall as expeditiously as possible:
(a) Prepare and file with the Commission a registration
statement with respect to such Registrable Securities and use its best efforts
to cause the registration statement to become effective and remain effective
until the earlier of (i) the date when all Registrable Securities covered by the
registration statement have been sold, or (ii) 180 days from the effective date
of the registration statement; 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 the registration statement copies of all such
documents proposed to be filed, including documents that are to be incorporated
by reference into the registration statement, amendment or supplement, which
documents shall be subject to the review of such counsel, and which proposed
registration statement or amendment or supplement thereto shall not be filed by
the Company if the holders of a majority of the Registrable Securities covered
by the registration statement, amendment or supplement reasonably object to such
filing;
(b) Prepare and file with the Commission such amendments and
supplements to the registration statement and the prospectus used in connection
therewith as may be necessary to keep the registration statement effective for
the period referred to in Section 5(a) and comply with the provisions of the
Securities Act with respect to the disposition of all securities covered by the
registration statement during such period in accordance with the intended
methods of disposition by the sellers thereof set forth in the registration
statement;
(c) Furnish to each seller of Registrable Securities such
number of copies of the registration statement, each amendment and supplement
thereto, the prospectus included in the registration statement (including each
preliminary prospectus) and such other documents as such holder may reasonably
request in order to facilitate the disposition of the Registrable Securities
owned by such holder;
(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 thereof reasonably requests and do any and all other
acts and things which may be reasonably necessary or advisable to enable such
holder to consummate the disposition in such jurisdictions of the Registrable
Securities owned by such holder;
(e) Notify each holder 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 holder, the Company shall
prepare a supplement
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or amendment to the 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) Promptly notify the holders of Registrable Securities and
the underwriters, if any, of the following events and (if requested by any such
Persons) confirm such notification in writing: (i) the filing of the prospectus
or any prospectus supplement and the registration statement and any amendment or
post-effective amendment thereto and, with respect to the registration statement
or any post-effective amendment thereto, the declaration of the effectiveness of
such document; (ii) any requests by the Commission for amendments or supplements
to the registration statement or the prospectus or for additional information;
(iii) the issuance or threat of issuance by the Commission of any stop order
suspending the effectiveness of the registration statement or the initiation of
any proceedings for that purpose; and (iv) the receipt by the Company of any
notification with respect to the suspension of the qualification of the
Registrable Securities for sale in any jurisdiction or the initiation or threat
of initiation of any proceeding for such purpose;
(g) Cause all such Registrable Securities to be listed on each
securities exchange on which similar securities issued by the Company are then
listed and, if not so listed, to be listed on the NASD automated quotation
system and, if listed on the NASD automated quotation system, endeavor to secure
designation of all such Registrable Securities covered by the registration
statement as a NASDAQ "national market system security" within the meaning of
Rule 11Aa2-1 of the Commission or, failing that, to secure NASDAQ authorization
for such Registrable Securities and, without limiting the generality of the
foregoing, to arrange for at least two market makers to register as such with
respect to such Registrable Securities with the NASD;
(h) Provide a transfer agent and registrar for all such
Registrable Securities not later than the effective date of such registration
statement;
(i) Enter into such customary agreements (including, without
limitation, underwriting agreements in customary form) and take all such other
actions as the holders of a majority of the Registrable Securities being sold or
the underwriters, if any, reasonably request in order to expedite or facilitate
the disposition of such Registrable Securities (including, without limitation,
effecting a stock split or a combination of shares);
(j) Make available for inspection by any holder of Registrable
Securities, any underwriter participating in any disposition pursuant to the
registration statement and any attorney, accountant or other agent retained by
any such holder 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 holder, underwriter, attorney,
accountant or agent in connection with the registration statement;
(k) Otherwise endeavor to comply with all applicable rules and
regulations of the Commission, and make available to its security holders, as
soon as reasonably practicable, an earnings statement covering the period of at
least twelve months beginning with the first day of
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the Company's first full calendar quarter after the effective date of the
registration statement, which earnings statement shall satisfy the provisions of
Section 11(a) of the Securities Act and Rule 158 thereunder;
(l) Permit any holder of Registrable Securities to participate
in the preparation of such registration or comparable statement and to require
the insertion therein of material furnished to the Company in writing, which in
the reasonable judgment of the holder and its counsel should be included;
(m) Make every reasonable effort to prevent the entry of any
order suspending the effectiveness of the registration statement and, in the
event of the issuance of any such stop order, or of any order suspending or
preventing the use of any related prospectus or suspending the qualification of
any security included in such registration statement for sale in any
jurisdiction, the Company shall use its best efforts promptly to obtain the
withdrawal of such order;
(n) Use its best efforts to cause such Registrable Securities
covered by the registration statement to be registered with or approved by such
other governmental agencies or authorities as may be necessary to enable the
holders thereof to consummate the disposition of such Registrable Securities;
(o) Cooperate with the selling holders of Registrable
Securities and the underwriters, if any, to facilitate the timely preparation
and delivery of certificates representing Registrable Securities to be sold and
not bearing any restrictive legends, and enable such Registrable Securities to
be in such lots and registered in such names as the underwriters may request at
least two business days prior to any delivery of Registrable Securities to the
underwriters;
(p) Provide a CUSIP number for all Registrable Securities not
later than the effective date of the registration statement; and
(q) Prior to the effectiveness of the registration statement
and any post-effective amendment thereto and at each closing of an underwritten
offering, (i) make such representations and warranties to the selling holders of
such Registrable Securities and the underwriters, if any, with respect to the
Registrable Securities and the registration statement as are customarily made by
issuers to underwriters in primary underwritten offerings, (ii) obtain opinions
of counsel to the Company and updates thereof (which counsel and which opinions
shall be reasonably satisfactory to the underwriters, if any, and to the holders
of a majority of the Registrable Securities being sold) addressed to each
selling holder and the underwriters, if any, covering the matters customarily
covered in opinions requested in underwritten offerings and such other matters
as may be reasonably requested by such holders and underwriters or their
counsel, (iii) obtain "cold comfort" letters and updates thereof from the
Company's independent certified public accountants addressed to the selling
holders of Registrable Securities and the underwriters, if any, such letters to
be in customary form and covering matters of the type customarily covered in
"cold comfort" letters by underwriters in connection with primary underwritten
offerings, and (iv) deliver such documents and certificates as may be reasonably
requested by the holders of a majority of the Registrable Securities being sold
and by the
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underwriters, if any, to evidence compliance with clause (i) above and with any
customary conditions contained in the underwriting agreement or other agreement
entered into by the Company.
6. REGISTRATION EXPENSES.
(a) All expenses incident to the Company's performance of or
compliance with this Agreement, including without limitation all registration
and filing fees, fees and expenses of compliance with securities or blue sky
laws, printing expenses, messenger and delivery expenses, and fees and
disbursements of counsel for the Company and all independent certified public
accountants, underwriters (excluding discounts and commissions) and other
Persons retained by the Company (all such expenses being herein called
"Registration Expenses"), shall be borne by the Company, and the Company shall
pay its internal expenses (including, without limitation, all salaries and
expenses of its officers and employees performing legal or accounting duties),
the expense of any annual audit or quarterly review, the expense of any
liability insurance and the expenses and fees for listing the securities to be
registered on each securities exchange on which similar securities issued by the
Company are then listed or on the NASD automated quotation system.
(b) In connection with each Demand Registration and each
Piggyback Registration, the Company shall reimburse the holders of Registrable
Securities covered by such registration for the reasonable fees and
disbursements of one (1) counsel chosen by the holders of a majority of the
Registrable Securities initially requesting such registration.
(c) To the extent Registration Expenses are not required to be
paid by the Company, each holder of securities included in any registration
hereunder shall pay those Registration Expenses allocable to the registration of
the holder's securities so included, and any Registration Expenses not so
allocable shall be borne by all sellers of securities included in the
registration in proportion to the aggregate selling price of the securities to
be so registered.
7. INDEMNIFICATION.
(a) The Company agrees to indemnify, to the extent permitted
by law, each holder of Registrable Securities, its affiliates and their
respective officers, directors, employees and agents, as the case may be, and
each Person who controls the holder (within the meaning of the Securities Act),
against all losses, claims, damages, liabilities and expenses caused by any
untrue or alleged untrue statement of material fact contained in any
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, except insofar as the same are caused by or contained in any
information furnished in writing to the Company by such holder expressly for use
therein as provided in Section 7(b) below. In connection with an underwritten
offering, the Company shall indemnify the underwriters, their officers,
directors and partners, as the case may be, and each Person who controls the
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.
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(b) In connection with any registration statement in which a
holder of Registrable Securities is participating, each 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 in writing by the holder; provided that the obligation to indemnify
shall be individual to each holder and shall be limited to the net amount of
proceeds received by the holder from the sale of Registrable Securities pursuant
to the 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 and (ii) unless in the indemnified party's
reasonable judgment a conflict of interest between the indemnified and the
indemnifying parties may exist with respect to such claim, permit the
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 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 (1) counsel for all parties indemnified by the
indemnifying party with respect to such claim, unless in the reasonable judgment
of any indemnified party, a conflict of interest may exist between the
indemnified party and any other of such indemnified parties 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 the party in the event the Company's
indemnification is unavailable for any reason.
8. PARTICIPATION IN UNDERWRITTEN REGISTRATIONS. No Person may
participate in any registration hereunder which is underwritten unless the
Person (a) agrees to sell the Person's securities on the basis provided in any
underwriting arrangements approved by the Person or Persons entitled hereunder
to approve such arrangements, and (b) completes and executes all questionnaires,
powers of attorney, indemnities, underwriting agreements and other documents
required under the terms of such underwriting arrangements; provided that no
holder of Registrable Securities included in any underwritten registration shall
be required to make any representations or warranties to the Company or the
underwriters other than representations and warranties regarding the holder and
the holder's intended method of distribution.
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9. REPORTS UNDER THE SECURITIES LAWS. With a view to making
available to the holders of Registrable Securities the benefits of Rule 144 and
any other rule or regulation of the Commission that may at any time permit the
holder to sell securities of the Company to the public without registration, the
Company agrees to use its best efforts to:
(a) Make and keep public information available, as those terms
are understood and defined in Rule 144, at all times subsequent to 90 days after
the effective date of any registration statement covering an underwritten public
offering filed under the Securities Act by the Company;
(b) File with the Commission in a timely manner all reports
and other documents required of the Company under the Securities Act and the
1934 Act at any time after it is subject to the registration requirements; and
(c) Furnish to any the holder so long as the holder owns any
of the Registrable Securities forthwith upon request a written statement by the
Company that it has complied with the reporting requirements of Rule 144 (at any
time after 90 days after the effective date of the registration statement filed
by the Company), and of the Securities Act and the 1934 Act (at any time after
it has become subject to such reporting requirements), a copy of the most recent
annual or quarterly report of the Company, and such other reports and documents
so filed by the Company as may be reasonably requested by any holder in availing
itself of any rule or regulation of the Commission permitting the selling of any
the securities without registration.
10. CERTAIN LIMITATIONS IN CONNECTION WITH FUTURE GRANTS OF
REGISTRATION RIGHTS. From and after the date of this Agreement, the Company
shall not enter into any agreement with any holder or prospective holder of any
securities of the Company providing for the granting to the holder of
registration rights unless the agreement:
(a) Includes as a term the equivalent of Section 4 of this
Agreement;
(b) Includes a provision that, in the case of a Demand
Registration, protects the holders of Registrable Securities if marketing
factors require a limitation on the number of securities to be included in an
underwriting in the manner contemplated by Sections 2(d), 3(c) and 3(d) of this
Agreement;
(c) Is otherwise not inconsistent with the rights granted to
the holders of Registrable Securities in this Agreement; and
(d) Is approved by the holders of a majority of the
Registrable Securities then outstanding.
11. TRANSFER OF REGISTRATION RIGHTS. Provided that the Company
is given written notice by the holder of Registrable Securities at the time of
any transfer of Registrable Securities by such holder stating the name and
address of the transferee of such Registrable Securities and identifying the
securities with respect to which the rights under this Agreement are being
assigned, the rights of the holder of Registrable Securities under this
Agreement may be transferred in whole or in part at any time to any such
transferee, so long as such transfer of securities is in accordance with all
applicable state and federal securities laws and regulations.
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12. MISCELLANEOUS.
(a) NO INCONSISTENT AGREEMENTS. The Company shall not
hereafter enter into any agreement with respect to its securities which is
inconsistent with or violates the rights granted to the holders of Registrable
Securities in this Agreement.
(b) ADJUSTMENTS AFFECTING REGISTRABLE SECURITIES. The Company
shall not take any action, or permit any change to occur, with respect to its
securities which would materially and adversely affect the ability of the
holders of Registrable Securities to include such Registrable Securities in a
registration undertaken pursuant to this Agreement or which would materially and
adversely affect the marketability of such Registrable Securities in any such
registration (including, without limitation, effecting a stock split or a
combination of shares).
(c) REMEDIES. Any Person having rights under any provision of
this Agreement shall be entitled to enforce such rights specifically to recover
damages caused by reason of any breach of any provision of this Agreement and to
exercise all other rights granted by law. The parties hereto agree and
acknowledge that money damages may not be an adequate remedy for any breach of
the provisions of this Agreement and that any party may, in its sole discretion,
apply to any court of law or equity of competent jurisdiction (without posting
any bond or other security) for specific performance and for other injunctive
relief in order to enforce or prevent violation of the provisions of this
Agreement.
(d) AMENDMENTS AND WAIVERS. Except as otherwise provided
herein, the provisions of this Agreement may be amended or waived only upon the
prior written consent of the Company and holders of a majority of the
Registrable Securities (excluding all Registrable Securities held by the
Company). The failure of any party to enforce any of the provisions of this
Agreement will in no way be construed as a waiver of such provisions and will
not affect the right of such party thereafter to enforce each and every
provision of this Agreement in accordance with its terms.
(e) SUCCESSORS AND ASSIGNS. All covenants and agreements in
this Agreement by or on behalf of any of the parties hereto shall bind and inure
to the benefit of the respective successors and assigns of the parties hereto,
whether so expressed or not. In addition, whether or not any express assignment
has been made, the provisions of this Agreement which are for the benefit of
purchasers or holders of Registrable Securities are also for the benefit of, and
enforceable by, any subsequent holder of Registrable Securities who consents in
writing to be bound by this Agreement.
(f) SEVERABILITY. Whenever possible, each provision of this
Agreement shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement is held to be prohibited
by or invalid under applicable law, that provision shall be ineffective only to
the extent of such prohibition or invalidity, without invalidating the remainder
of this Agreement.
(g) COUNTERPARTS. This Agreement may be executed
simultaneously in multiple counterparts, any one of which need not contain the
signatures of more than one party, but all such counterparts taken together
shall constitute one and the same Agreement.
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(h) DESCRIPTIVE HEADINGS; INTERPRETATION. The descriptive
headings of this Agreement are inserted for convenience only and do not
constitute a Section of this Agreement. The use of the word "including" in this
Agreement shall be by way of example rather than by limitation.
(i) GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York, without regard
to principles of conflicts of law.
(j) NOTICES. All notices, demands or other communications to
be given or delivered under or by reason of the provisions of this Agreement
shall be in writing and shall be delivered personally to the recipient, sent by
reputable express courier service (charges prepaid) or sent by certified or
registered mail, return receipt requested and postage prepaid and shall be
deemed to have been given when so delivered, sent or deposited in the U.S. mail.
Such notices, demands and other communications shall be sent to the parties
hereto at the addresses indicated below or, with respect to subsequent holders
of Registrable Securities, at the addresses of such holders set forth in the
books and records of the Company:
if to the Company:
Advanced Lighting Technologies, Inc.
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Attention: President
with a copy to:
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & Sarlson Co., L.P.A.
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇, Esq.
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
if to the Purchaser:
GE Lighting
▇▇▇▇ ▇▇▇▇▇ ▇▇.
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: President and Chief
Executive Officer
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
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with a copy to:
GE Lighting
▇▇▇▇ ▇▇▇▇▇ ▇▇.
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: General Counsel
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
or to such other address as it appears in the records of the Company (unless
otherwise indicated by such holder) or to the attention of such other person as
the recipient party has specified by prior written notice to the sending party.
IN WITNESS WHEREOF, the parties have executed this Agreement
as of the date first written above.
ADVANCED LIGHTING TECHNOLOGIES, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------------
Title: Chairman and Chief Executive Officer
-------------------------------------
GENERAL ELECTRIC COMPANY
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
------------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
-------------------------------------
Title: President and CEO, GE Lighting
-------------------------------------
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