EXHIBIT 10.3
REGISTRATION RIGHTS AGREEMENT DATED
MARCH 1, 2007
EXECUTION COPY
REGISTRATION RIGHTS AGREEMENT
BY AND AMONG
TOWER TECH HOLDINGS INC.
TONTINE CAPITAL PARTNERS, L.P.
AND
TONTINE CAPITAL OVERSEAS MASTER FUND, L.P.
MARCH 1, 2007
10.3-Registration Rights Agreement (2).DOC
TABLE OF CONTENTS
PAGE
ARTICLE 1 Definitions.........................................................1
ARTICLE 2 Registration Rights.................................................4
2.1 Current Public Information..........................................4
2.2 Registration........................................................4
2.3 Demand Registration.................................................5
2.4 Piggyback Registration..............................................7
2.5 Underwriting; Holdback Agreements...................................8
2.6 Registration Procedures.............................................9
2.7 Conditions Precedent to Company's Obligations Pursuant to
this Agreement.....................................................11
2.8 Fees and Expenses..................................................11
2.9 Indemnification....................................................12
2.10 Participation in Registrations.....................................14
2.11 Compliance.........................................................15
ARTICLE 3 Transfers of Certain Rights........................................15
3.1 Transfer...........................................................15
3.2 Transferees........................................................15
3.3 Subsequent Transferees.............................................15
ARTICLE 4 Miscellaneous......................................................15
4.1 Recapitalizations, Exchanges, etc..................................15
4.2 No Inconsistent Agreements.........................................16
4.3 Amendments and Waivers.............................................16
4.4 Severability.......................................................16
4.5 Counterparts.......................................................16
4.6 Notices............................................................16
4.7 Governing Law......................................................17
4.8 Forum; Service of Process..........................................17
4.9 Captions...........................................................17
4.10 No Prejudice.......................................................17
4.11 Words in Singular and Plural Form..................................17
4.12 Remedy for Breach..................................................17
4.13 Successors and Assigns, Third Party Beneficiaries..................18
4.14 Entire Agreement...................................................18
4.15 Attorneys' Fees....................................................18
4.16 Termination of Rights..............................................18
i
REGISTRATION RIGHTS AGREEMENT
This REGISTRATION RIGHTS AGREEMENT, dated as of March 1, 2007 (the
"AGREEMENT"), is entered into by and among TOWER TECH HOLDINGS INC., a Nevada
corporation (the "COMPANY"), TONTINE CAPITAL PARTNERS, L.P., a Delaware limited
partnership ("TCP" or a "PURCHASER") and TONTINE CAPITAL OVERSEAS MASTER FUND,
L.P., a Cayman Islands limited partnership (a "PURCHASER" and together with TCP,
the "PURCHASERS").
RECITALS:
A. The Company desires to issue and sell 10,266,667 shares of its
Common Stock to the Purchasers as set forth in the Securities Purchase
Agreement, dated as of March 1, 2007, entered into by and between the Company
and the Purchasers (the "SECURITIES PURCHASE AGREEMENT");
B. It is a condition precedent to the consummation of the transactions
contemplated by the Securities Purchase Agreement that the Company provide for
the rights set forth in this Agreement; and
C. Certain terms used in this Agreement are defined in ARTICLE 1
hereof.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing premises and the
mutual covenants and agreements hereinafter contained, and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, intending to be legally bound, the parties hereto hereby agree as
follows:
ARTICLE 1
DEFINITIONS
"AFFILIATE" means any Person that directly or indirectly controls, or
is under control with, or is controlled by such Person. As used in this
definition, "control" (including with its correlative meanings, "controlled by"
and "under common control with") shall mean the possession, directly or
indirectly, of the power to direct or cause the direction of the management or
policies of a Person (whether through ownership of securities or partnership or
other ownership interests, by contract or otherwise).
"BUSINESS DAY" means any day excluding Saturday, Sunday or any other
day which is a legal holiday under the laws of the State of Wisconsin or is a
day on which banking institutions therein located are authorized or required by
law or other governmental action to close.
"CLOSING DATE" has the meaning ascribed to such term in the Securities
Purchase Agreement.
"COMMON STOCK" means the common stock, par value $0.001 per share, of
the Company.
"COMPANY" has the meaning set forth in the preamble.
"DEMAND NOTICE" has the meaning set forth in SECTION 2.3.
"DESIGNATED HOLDERS" means the Purchasers and any qualifying
transferees of the Purchasers under SECTION 3.1 hereof who hold Registrable
Securities.
10.3-Registration Rights Agreement (2).DOC
"EFFECTIVENESS DATE" means (a) with respect to the initial Registration
Statement required to be filed under SECTION 2.2(A), the earlier of: (i) the
300th day following the Closing Date, and (ii) the fifth trading day following
the date on which the Company is notified by the SEC that the initial
Registration Statement will not be reviewed or is no longer subject to further
review and comments, and (b) with respect to any additional Registration
Statements that may be required pursuant to SECTION 2.2(B), the earlier of (i)
the 120th day following (x) if such Registration Statement is required because
the SEC shall have notified the Company in writing that certain Registrable
Securities were not eligible for inclusion on a previously filed Registration
Statement, the date or time on which the SEC shall indicate as being the first
date or time that such Registrable Securities may then be included in a
Registration Statement, or (y) if such Registration Statement is required for a
reason other than as described in (x) above, the date on which the Company first
knows, or reasonably should have known, that such additional Registration
Statement(s) is required, and (ii) the fifth trading day following the date on
which the Company is notified by the SEC that such additional Registration
Statement will not be reviewed or is no longer subject to further review and
comment.
"EFFECTIVENESS PERIOD" has the meaning set forth in SECTION 2.2(A).
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended,
and the rules and regulations of the SEC promulgated thereunder.
"FILING DATE" means (a) with respect to the initial Registration
Statement required to be filed under SECTION 2.2(A), the date which is 180 days
following the Closing Date, and (b) with respect to any additional Registration
Statements that may be required pursuant to SECTION 2.2(B), the 45th day
following (x) if such Registration Statement is required because the SEC shall
have notified the Company in writing that certain Registrable Securities were
not eligible for inclusion on a previously filed Registration Statement, the
date or time on which the SEC shall indicate as being the first date or time
that such Registrable Securities may then be included in a Registration
Statement, or (y) if such Registration Statement is required for a reason other
than as described in (x) above, the date on which the Company first knows, or
reasonably should have known, that such additional Registration Statement(s) is
required.
"FOUNDERS SECURITIES PURCHASE AGREEMENT" means that certain Securities
Purchase Agreement among the Purchasers, ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇ III, ▇▇▇▇▇▇▇ ▇. ▇▇▇ and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ of even date herewith.
"INDEMNIFIED PARTY" has the meaning set forth in SECTION 2.9.
"LOSSES" has the meaning set forth in SECTION 2.9.
"MAJORITY HOLDERS" means those Designated Holders holding a majority of
the Registrable Securities.
"PERSON" means any individual, company, partnership, firm, joint
venture, association, joint-stock company, trust, unincorporated organization,
governmental body or other entity.
"PIGGYBACK REGISTRATION" has the meaning set forth in SECTION 2.4.
"PURCHASERS" has the meaning set forth in the preamble.
"PURCHASE PRICE" has the meaning ascribed to such term in the
Securities Purchase Agreement.
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10.3-Registration Rights Agreement (2).DOC
"REGISTRABLE SECURITIES" means, subject to the immediately following
sentences, (i) shares of Common Stock acquired by the Purchasers from the
Company pursuant to the Securities Purchase Agreement, shares of Common Stock
purchased on the Closing Date from certain stockholders of the Company pursuant
to the Founders Securities Purchase Agreement, and so long as this Agreement is
still in effect, any other shares of Common Stock acquired by the Purchasers on
or after the Closing Date, and (ii) any shares of Common Stock issued or
issuable, directly or indirectly, with respect to the securities referred to in
clause (i) by way of stock dividend or stock split or in connection with a
combination of shares, recapitalization, merger, consolidation or other
reorganization. In addition, any particular shares of Common Stock constituting
Registrable Securities will cease to be Registrable Securities when they (x)
have been effectively registered under the Securities Act and disposed of in
accordance with a Registration Statement covering them, (y) have been sold to
the public pursuant to Rule 144 (or by similar provision under the Securities
Act), or (z) are eligible for resale under Rule 144(k) (or by similar provision
under the Securities Act) without any limitation on the amount of securities
that may be sold under paragraph (e) thereof.
"REGISTRATION STATEMENT" means a registration statement on Form S-3
(or, if the Company is not eligible to use Form S-3, such other appropriate
registration form of the SEC pursuant to which the Company is eligible to
register the resale of Registrable Securities) filed by the Company under the
Securities Act which covers any of the Registrable Securities pursuant to the
provisions of this Agreement, including the prospectus, amendments and
supplements to such registration statement, including post-effective amendments,
all exhibits and all material incorporated by reference in such registration
statement, which shall permit the Purchasers to offer and sell, on a delayed or
continuous basis pursuant to Rule 415 under the Securities Act, the Registrable
Securities.
"REGISTER," "REGISTERED" and "REGISTRATION" each shall refer to a
registration effected by preparing and filing a registration statement or
statements or similar documents in compliance with the Securities Act and the
declaration or ordering of effectiveness of such registration statement(s) or
documents by the SEC.
"REPRESENTATIVES" has the meaning set forth in SECTION 2.9.
"RULE 144" means Rule 144 promulgated by the SEC pursuant to the
Securities Act, as such Rule may be amended from time to time, or any similar
rule or regulation hereafter adopted by the SEC having substantially the same
effect as such Rule.
"RULE 415" means Rule 415 promulgated by the SEC pursuant to the
Securities Act, as such Rule may be amended from time to time, or any similar
rule or regulation hereafter adopted by the SEC having substantially the same
effect as such Rule.
"SEC" means the United States Securities and Exchange Commission or any
other federal agency at the time administering the Securities Act.
"SECURITIES ACT" means the Securities Act of 1933, as amended, and the
rules and regulations of the SEC promulgated thereunder.
"SECURITIES PURCHASE AGREEMENT" has the meaning set forth in the
recitals.
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10.3-Registration Rights Agreement (2).DOC
ARTICLE 2
REGISTRATION RIGHTS
2.1 CURRENT PUBLIC INFORMATION. The Company covenants that it will use
its best efforts to file all reports required to be filed by it under the
Exchange Act and the rules and regulations adopted by the SEC thereunder, and
will use its reasonable best efforts to take such further action as the
Designated Holders may reasonably request, all to the extent required to enable
the Designated Holders to sell Registrable Securities pursuant to Rule 144 or
Rule 144A adopted by the SEC under the Securities Act or any similar rule or
regulation hereafter adopted by the SEC. The Company shall, upon the request of
a Designated Holder, deliver to such Designated Holder a written statement as to
whether it has complied with such requirements during the twelve month period
immediately preceding the date of such request.
2.2 REGISTRATION.
(a) On or prior to each Filing Date, the Company shall prepare and
file with the SEC a Registration Statement covering the resale of all
Registrable Securities not already covered by an existing and effective
Registration Statement for an offering to be made on a continuous basis pursuant
to Rule 415. The Registration Statement shall provide for the resale from time
to time, and pursuant to any method or combination of methods legally available
by the Designated Holders of any and all Registrable Securities. The Company
shall use its reasonable best efforts to cause the Registration Statement to be
declared effective under the Securities Act as soon as possible but, in any
event, no later than its Effectiveness Date, and shall use its reasonable best
efforts to keep the Registration Statement continuously effective, supplemented
and amended to the extent necessary to ensure that is available for the resale
of all Registrable Securities by the Designated Holders and that it conforms in
all material respects to the requirements of the Securities Act during the
entire period beginning on the Effectiveness Date and ending on the date on
which all Registrable Securities have ceased to be Registrable Securities. (the
"EFFECTIVENESS PERIOD").
(b) If for any reason the SEC does not permit all of the
Registrable Securities to be included in a Registration Statement filed pursuant
to SECTION 2.2(A) or for any other reason all Registrable Securities then
outstanding are not then included in such an effective Registration Statement,
then the Company shall prepare and file as soon as reasonably possible after the
date on which the SEC shall indicate as being the first date or time that such
filing may be made, but in any event by the Filing Date therefore, an additional
Registration Statement covering the resale of all Registrable Securities not
already covered by an existing and effective Registration Statement for an
offering to be made on a continuous basis pursuant to Rule 415. Each such
Registration Statement shall provide for the resale from time to time, and
pursuant to any method or combination of methods legally available by the
Designated Holders of any and all Registrable Securities. The Company shall use
its reasonable best efforts to cause each such Registration Statement to be
declared effective under the Securities Act as soon as possible but, in any
event, no later than its Effectiveness Date, and shall use its reasonable best
efforts to keep such Registration Statement continuously effective under the
Securities Act during the entire Effectiveness Period.
(c) The Company may, at any time it is eligible to do so, file a
post-effective amendment on Form S-3 to any Registration Statement on Form S-1
for the resale of any then existing Registrable Securities or in any such other
manner as is preferred or permitted by the SEC to convert such Registration
Statement to a Form S-3 Registration Statement. Upon the effectiveness of such
Form S-3 Registration Statement, all references to a Registration Statement in
this Agreement shall then automatically be deemed to be a reference to the Form
S-3 Registration Statement.
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10.3-Registration Rights Agreement (2).DOC
2.3 DEMAND REGISTRATION. In addition to the registration obligations of
the Company set forth in Section 2.2 herein, the following provisions shall
apply:
(a) Subject to SECTION 2.3(H), upon the written request of the
Majority Holders, requesting that the Company effect the registration under the
Securities Act of all or part of such Designated Holders' Registrable Securities
and specifying the intended method of disposition thereof (the "DEMAND NOTICE"),
the Company will promptly give written notice of such requested registration to
all Designated Holders, and thereupon the Company will use its reasonable best
efforts to file with the SEC as soon as reasonably practicable following the
Demand Notice (but in no event later than the date that is 90 days after the
Demand Notice) a Registration Statement. The Company shall use its reasonable
best efforts to cause such Registration Statement to be declared effective by
the SEC within 90 days after the initial filing of the Registration Statement.
The Company shall include in such Registration Statement:
(i) the Registrable Securities which the Company has been
so requested to be registered by such Designated Holders for
disposition in accordance with the intended method of disposition
stated in such request;
(ii) all other Registrable Securities the holders of which
shall have made a written request to the Company for registration
thereof within 30 days after the giving of such written notice by the
Company (which request shall specify the intended method of disposition
of such Registrable Securities); and
(iii) all shares of Common Stock which the Company or Persons
entitled to exercise "piggy-back" registration rights pursuant to
contractual commitments of the Company may elect to register in
connection with the offering of Registrable Securities pursuant to this
SECTION 2.3;
all to the extent requisite to permit the disposition (in accordance with the
intended methods thereof as aforesaid) of the Registrable Securities and the
additional shares of Common Stock, if any, so to be registered; provided, that,
the provisions of this SECTION 2.3 shall not require the Company to effect more
than two registrations of Registrable Securities.
(b) Notwithstanding anything to the contrary contained in this
Agreement, the Company shall not be required to effect a registration pursuant
to this SECTION 2.3 within 180 days following the effective date of a
registration statement filed by the Company in accordance with SECTIONS 2.2, 2.3
or 2.4 for the account of another Designated Holder of Registrable Securities if
the Designated Holders were afforded the opportunity to include the Registrable
Securities in such registration.
(c) The registrations under this SECTION 2.3 shall be on an
appropriate Registration Statement that permits the disposition of such
Registrable Securities in accordance with the intended methods of distribution
specified by the Majority Holders in their request for registration. The Company
agrees to include in any such Registration Statement all information which
Designated Holders of Registrable Securities being registered shall reasonably
request to effect the registration.
(d) A registration requested pursuant to this SECTION 2.3 shall not
be deemed to have been effected (i) unless a Registration Statement with respect
thereto has become effective; provided, that a Registration Statement which does
not become effective after the Company has filed a Registration Statement with
respect thereto solely by reason of the refusal to proceed of the Majority
Holders (other than a refusal to proceed based upon the advice of counsel
relating to a matter with respect to the Company) or because of a breach of this
Agreement by any Designated Holder shall be deemed to have been effected by the
Company at the request of the Majority Holders unless the Designated Holders
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10.3-Registration Rights Agreement (2).DOC
electing to have Registrable Securities registered pursuant to such Registration
Statement shall have elected to pay all fees and expenses otherwise payable by
the Company in connection with such registration pursuant to SECTION 2.8, (ii)
if, after it has become effective, such registration is withdrawn by the Company
(other than at the request of the Majority Holders) or interfered with by any
stop order, injunction or other order or requirement of the SEC or other
governmental agency or court for any reason prior to the expiration of a 180 day
period following such Registration Statement's effectiveness, or (iii) if the
conditions to closing specified in any purchase agreement or underwriting
agreement entered into in connection with such registration are not satisfied,
other than due solely to some act or omission by the Designated Holders electing
to have Registrable Securities registered pursuant to such Registration
Statement.
(e) If a requested registration pursuant to this SECTION 2.3
involves an underwritten offering, and the managing underwriter shall advise the
Company in writing (with a copy to each Designated Holder of Registrable
Securities requesting registration) that, in its opinion, the number of
securities requested to be included in such registration (including securities
of the Company which are not Registrable Securities) exceeds the number which
can be sold in such offering within a price range reasonably acceptable to the
Company and to the holders of a majority (by number of shares) of the
Registrable Securities requested to be included in such Registration Statement,
the Company will include in such registration, to the extent of the number which
the Company is so advised can be sold in such offering, (i) first, the
Registrable Securities which have been requested to be included in such
registration by the Designated Holders pursuant to this Agreement (pro rata
based on the amount of Registrable Securities sought to be registered by such
Persons), (ii) second, provided that no securities sought to be included by the
Designated Holders have been excluded from such registration, the securities of
other Persons entitled to exercise "piggy-back" registration rights pursuant to
contractual commitments of the Company (pro rata based on the amount of
securities sought to be registered by such Persons) and (iii) third, securities
the Company proposes to register.
(f) The Company shall use its reasonable best efforts to keep any
Registration Statement filed pursuant to this SECTION 2.3 continuously effective
(i) for a period of two years after the Registration Statement first becomes
effective, plus the number of days during which such Registration Statement was
not effective or usable pursuant to SECTIONS 2.6(E) or 2.6(I); or (ii) if such
Registration Statement related to an underwritten offering, for such period as
in the opinion of counsel for the underwriters a prospectus is required by law
to be delivered in connection with sales of Registrable Securities by an
underwriter or dealer. In the event the Company shall give any notice pursuant
to SECTIONS 2.6(E) or (I), the additional time period mentioned in SECTION
2.3(F)(I) during which the Registration Statement is to remain effective shall
be extended by the number of days during the period from and including the date
of the giving of such notice pursuant to SECTIONS 2.6(E) or (I) to and including
the date when each seller of a Registrable Security covered by the Registration
Statement shall have received the copies of the supplemented or amended
prospectus contemplated by SECTIONS 2.6(E) or (I).
(g) The Company shall have the right at any time, to suspend the
filing of a Registration Statement under this SECTION 2.3 or require that the
Designated Holders of Registrable Securities suspend further open market offers
and sales of Registrable Securities pursuant to a Registration Statement filed
hereunder for a period not to exceed an aggregate of 30 days in any six month
period or an aggregate of 60 days in any twelve-month period for valid business
reasons (not including avoidance of their obligations hereunder) (i) to avoid
premature public disclosure of a pending corporate transaction, including
pending acquisitions or divestitures of assets, mergers and combinations and
similar events; (ii) upon the occurrence of any of the events specified in
SECTION 2.6(E), until the time that the Designated Holders receive copies of a
supplement or amendment to the prospectus included in the applicable
Registration Statement as contemplated in SECTION 2.6(E); and (iii) upon the
occurrence of any of the
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10.3-Registration Rights Agreement (2).DOC
events specified in SECTION 2.6(I), until the time the Company notifies the
Designated Holders in writing that such suspension is no longer effective.
(h) The right of Designated Holders to register Registrable
Securities pursuant to this SECTION 2.3 is only exercisable if, prior to the
expiration of the Effectiveness Period, the Company becomes ineligible to
register the Registrable Securities on the Registration Statement contemplated
by SECTION 2.2 or such Registration Statement otherwise becomes unusable (other
than due solely to some act or omission by the Designated Holders electing to
have Registrable Securities registered pursuant to such Registration Statement)
or ineffective and the Company is not able to correct the misstatements, have
the applicable stop order rescinded or otherwise restore the effectiveness of
the Registration Statement as contemplated by this Agreement.
2.4 PIGGYBACK REGISTRATION.
(a) Whenever the Company proposes to register any of its securities
under the Securities Act (other than pursuant to a registration pursuant to
SECTION 2.2 or SECTION 2.3 or a registration on Form S-4 or S-8 or any successor
or similar forms) and the registration form to be used may be used for the
registration of Registrable Securities, whether or not for sale for its own
account, the Company will give prompt written notice (but in no event less than
30 days before the anticipated filing date) to all Designated Holders (other
than Designated Holders all of whose Registrable Securities are then covered by
an effective Registration Statement), and such notice shall describe the
proposed registration and distribution and offer to all such Designated Holders
the opportunity to register the number of Registrable Securities as each such
Designated Holder may request. The Company will include in such registration
statement all Registrable Securities with respect to which the Company has
received written requests for inclusion therein within 15 days after the
Designated Holders' receipt of the Company's notice (a "PIGGYBACK
REGISTRATION").
(b) The Company shall use its reasonable best efforts to cause the
managing underwriter or underwriters of a proposed underwritten offering
involving a Piggyback Registration to permit the Registrable Securities
requested to be included in a Piggyback Registration to be included on the same
terms and conditions as any similar securities of the Company or any other
security holder included therein and to permit the sale or other disposition of
such Registrable Securities in accordance with the intended method of
distribution thereof.
(c) Any Designated Holder shall have the right to withdraw its
request for inclusion of its Registrable Securities in any Registration
Statement pursuant to this SECTION 2.4 by giving written notice to the Company
of its request to withdraw; provided, that in the event of such withdrawal
(other than pursuant to SECTION 2.4(E) hereof), the Company shall not be
required to reimburse such Designated Holder for the fees and expenses referred
to in SECTION 2.8 hereof incurred by such Designated Holder prior to such
withdrawal, unless such withdrawal was due to a material adverse change to the
Company. The Company may withdraw a Piggyback Registration at any time prior to
the time it becomes effective.
(d) If (i) a Piggyback Registration involves an underwritten
offering of the securities being registered, whether or not for sale for the
account of the Company, to be distributed (on a firm commitment basis) by or
through one or more underwriters of recognized standing under underwriting terms
appropriate for such a transaction, and (ii) the managing underwriter of such
underwritten offering shall inform the Company and Designated Holders requesting
such registration by letter of its belief that the distribution of all or a
specified number of such Registrable Securities concurrently with the securities
being distributed by such underwriters would interfere with the successful
marketing of the securities being distributed by such underwriters (such writing
to state the basis of such belief and the approximate number of such Registrable
Securities which may be distributed without such effect), then the Company
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10.3-Registration Rights Agreement (2).DOC
will be required to include in such registration only the amount of securities
which it is so advised should be included in such registration. In such event:
(x) in cases initially involving the registration for sale of securities for the
Company's own account, securities shall be registered in such offering in the
following order of priority: (i) first, the securities which the Company
proposes to register, and (ii) second, Registrable Securities and securities
which have been requested to be included in such registration by Persons
entitled to exercise "piggy-back" registration rights pursuant to contractual
commitments of the Company (pro rata based on the amount of securities sought to
be registered by Designated Holders and such other Persons); and (y) in cases
not initially involving the registration for sale of securities for the
Company's own account, securities shall be registered in such offering in the
following order of priority: (i) first, the securities of any Person whose
exercise of a "demand" registration right pursuant to a contractual commitment
of the Company is the basis for the registration, (ii) second, Registrable
Securities and securities which have been requested to be included in such
registration by Persons entitled to exercise "piggy-back" registration rights
pursuant to contractual commitments of the Company (pro rata based on the amount
of securities sought to be registered by Designated Holders and such other
Persons), and (iii) third, the securities which the Company proposes to
register.
(e) If, as a result of the proration provisions of this SECTION
2.4, any Designated Holder shall not be entitled to include all Registrable
Securities in a Piggyback Registration that such Designated Holder has requested
to be included, such holder may elect to withdraw his request to include
Registrable Securities in such registration.
(f) The right of the Designated Holders to register Registrable
Securities pursuant to this SECTION 2.4 is only exercisable with respect to
Registrable Securities not then covered by an effective Registration Statement.
2.5 UNDERWRITING; HOLDBACK AGREEMENTS.
(a) In the event that one or more Designated Holders elect to
dispose of Registrable Securities under a Registration Statement pursuant to an
underwritten offering or a requested registration pursuant to SECTION 2.3
involves an underwritten offering, the managing underwriter or underwriters
shall be selected by the holders of a majority (by number of shares) of the
Registrable Securities to be sold in the underwritten offering or requested to
be included in such Registration Statement and shall be reasonably acceptable to
the Company. In connection with any such underwritten offering, the Company
shall take all such reasonable actions as are required by the managing
underwriters in order to expedite and facilitate the registration and
disposition of the Registrable Securities, including the Company causing
appropriate officers of the Company or its Affiliates to participate in a "road
show" or similar marketing effort being conducted by such managing underwriters
with respect to such underwritten offering.
(b) All Designated Holders proposing to distribute their
Registrable Securities through an underwritten offering shall enter into an
underwriting agreement in customary form with the managing underwriters selected
for such underwritten offering.
(c) To the extent not inconsistent with applicable law, in
connection with a public offering of securities of the Company, upon the request
of the Company or, in the case of an underwritten public offering of the
Company's securities, the managing underwriters, each Designated Holder who
beneficially owns (as defined in Rule 13d-3 adopted by the SEC under the
Exchange Act) at least 5% of the outstanding capital stock of the Company will
not effect any sale or distribution (other than those included in the
registration statement being filed with respect to such public offering) of, or
any short sale of, or any grant of option to purchase, or any hedging or similar
transaction with respect to, any securities of the Company, or any securities,
options or rights convertible into or exchangeable or exercisable for such
securities during the 14 days prior to and the 90-day period beginning on the
effective date of such
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10.3-Registration Rights Agreement (2).DOC
public offering, unless the Company, or in the case of an underwritten public
offering, the managing underwriters otherwise agree to a shorter period of time.
At the request of the Company or the managing underwriters, each such Designated
Holder shall execute a customary "lock-up" agreement consistent with the
provisions of this SECTION 2.5; provided, however, that no Designated Holder
shall be required to enter into any such "lock up" agreement unless and until
all of the Company's executive officers and directors execute substantially
similar "lock up" agreements and the Company uses commercially reasonable
efforts to cause each holder of more than 5% of its outstanding capital stock to
execute substantially similar "lock up" agreements. Neither the Company nor the
underwriter shall terminate, materially amend or waive the enforcement of any
material provision under a "lock up" agreement unless each "lock up" agreement
with a Designated Holder is also amended or waived in a similar manner or
terminated, as the case may be. The Company may impose stop-transfer
instructions to enforce the restrictions imposed by this SECTION 2.5.
2.6 REGISTRATION PROCEDURES. The Company will use its reasonable best
efforts to effect the registration of Registrable Securities pursuant to this
Agreement in accordance with the intended methods of disposition thereof, and
pursuant thereto the Company will as expeditiously as possible:
(a) before filing the Registration Statement, the Company will
furnish to any counsel selected by the holders of a majority of the Registrable
Securities a copy of such Registration Statement, and will provide such counsel
with all written correspondence with the SEC regarding the Registration
Statement;
(b) prepare and file with the SEC 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 the
periods provided for in SECTION 2.2 and SECTION 2.3, or the periods contemplated
by the Company or the Persons requesting any Registration Statement filed
pursuant to SECTION 2.4;
(c) furnish to each Designated Holder selling such Registrable
Securities such number of copies of such Registration Statement, each amendment
and supplement thereto, the prospectus included in the 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 Designated Holder;
(d) use its reasonable best efforts to register or qualify such
Registrable Securities under such other state securities or blue sky laws as the
selling Designated Holders selling such Registrable Securities reasonably
requests and do any and all other acts and things which may be reasonably
necessary or reasonably advisable to enable such Designated Holder to consummate
the disposition in such jurisdictions of the Registrable Securities owned by
such Designated Holder and to keep each such registration or qualification (or
exemption therefrom) effective during the period which the Registration
Statement is required to be kept effective (provided, that the Company will 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 Designated Holder selling 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 the Registration Statement contains an untrue
statement of a material fact or omits any fact necessary to make the statements
therein not misleading in the light of the circumstances under which they were
made, and, at the request of any such Designated Holder, the Company will as
soon as possible prepare and furnish to such Designated Holder a reasonable
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10.3-Registration Rights Agreement (2).DOC
number of copies of a supplement or amendment to such prospectus so that, as
thereafter delivered to the purchasers of such Registrable Securities, such
prospectus will not contain an untrue statement of a material fact or omit to
state any fact necessary to make the statements therein not misleading in the
light of the circumstances under which they were made;
(f) cause all such Registrable Securities to be listed or quoted on
each securities exchange or quotation service on which similar securities issued
by the Company are then listed or quoted and, if not so listed, to be approved
for trading on any automated quotation system of a national securities
association on which similar securities of the Company are quoted;
(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 agreements (including underwriting
agreements containing customary representations and warranties) and take all
other customary and appropriate actions as the holders of a majority of the
Registrable Securities being sold or the managing underwriters, if any,
reasonably request in order to expedite or facilitate the disposition of such
Registrable Securities;
(i) notify each Designated Holder of any stop order issued or
threatened by the SEC;
(j) otherwise comply with all applicable rules and regulations of
the SEC, 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 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;
(k) in the event of the issuance of any stop order suspending the
effectiveness of a Registration Statement, or of any order suspending or
preventing the use of any related prospectus or suspending the qualification of
any securities included in such Registration Statement for sale in any
jurisdiction, the Company will use its reasonable best efforts to promptly
obtain the withdrawal of such order;
(l) with respect to an underwritten offering pursuant to any
Registration Statement filed under SECTION 2.2 or SECTION 2.3, obtain one or
more comfort letters, dated the effective date of the Registration Statement
and, if required by the managing underwriters, dated the date of the closing
under the underwriting agreement, signed by the Company's independent public
accountants in customary form and covering such matter of the type customarily
covered by comfort letters in similar transactions;
(m) with respect to an underwritten offering pursuant to any
Registration Statement filed under SECTION 2.2 or SECTION 2.3, obtain a legal
opinion of the Company's outside counsel, dated the effective date of such
Registration Statement and, if required by the managing underwriters, dated the
date of the closing under the underwriting agreement, with respect to the
Registration Statement, each amendment and supplement thereto, the prospectus
included therein (including the preliminary prospectus) and such other documents
relating thereto in customary form and covering such matters of the type
customarily covered by legal opinions in similar transactions;
(n) subject to execution and delivery of mutually satisfactory
confidentiality agreements, make available at reasonable times for inspection by
each Designated Holder selling such Registrable Securities, any managing
underwriter participating in any disposition of such Registrable Securities
pursuant to the Registration Statement, and any attorney, accountant or other
agent retained by such Designated Holder or any such managing underwriter,
during normal business hours of the Company at
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10.3-Registration Rights Agreement (2).DOC
the Company's corporate office in Manitowoc, Wisconsin and without unreasonable
disruption of the Company's business or unreasonable expense to Company and
solely for the purpose of due diligence with respect to the Registration
Statement, legally disclosable, financial and other records and pertinent
corporate documents of the Company and its subsidiaries reasonable requested by
such Persons, and cause the Company's employees to, and request its independent
accountants to, supply all similar information reasonably requested by any such
Person, as shall be reasonably necessary to enable them to exercise their due
diligence responsibility;
(o) cooperate with each seller of Registrable Securities and each
underwriter participating in the disposition of such Registrable Securities and
their respective counsel in connection with any filings required to be made with
the OTC Bulletin Board or the National Association of Securities Dealers; and
(p) take all other steps reasonably necessary to effect the
registration of the Registrable Securities contemplated hereby.
2.7 CONDITIONS PRECEDENT TO COMPANY'S OBLIGATIONS PURSUANT TO THIS
AGREEMENT. It shall be a condition precedent to the obligations of the Company
to take any action pursuant to this ARTICLE 2 with respect to the Registrable
Securities of any Designated Holder that such Designated Holder shall timely
furnish to the Company such information regarding itself, the Registrable
Securities held by it and the intended method of distribution of such securities
as shall reasonably be required to effect the registration of such Designated
Holder's Registrable Securities.
2.8 FEES AND EXPENSES. All expenses incident to the Company's
performance of or compliance with this Agreement including, without limitation,
all registration and filing fees payable by the Company, fees and expenses of
compliance by the Company with securities or blue sky laws, printing expenses of
the Company, messenger and delivery expenses of the Company, and fees and
disbursements of counsel for the Company and all independent certified public
accountants of the Company, and other Persons retained by the Company will be
borne by the Company, and the Company will pay its internal expenses (including,
without limitation, all salaries and expenses of the Company's employees
performing legal or accounting duties), the expense of any annual audit or
quarterly review, the expense of any liability insurance of the Company and the
expenses and fees for listing or approval for trading of the securities to be
registered on each securities exchange on which similar securities issued by the
Company are then listed or on any automated quotation system of a national
securities association on which similar securities of the Company are quoted. In
connection with any Registration Statement filed hereunder, the Company will pay
the reasonable fees and expenses of a single counsel retained by the Designated
Holders of a majority (by number of shares) of the Registrable Securities
requested to be included in such Registration Statement. The Company shall have
no obligation to pay any underwriting discounts or commissions attributable to
the sale of Registrable Securities and any of the expenses incurred by any
Designated Holder which are not payable by the Company, such costs to be borne
by such Designated Holder or Holders, including, without limitation,
underwriting fees, discounts and expenses, if any, applicable to any Designated
Holder's Registrable Securities; fees and disbursements of counsel or other
professionals that any Designated Holder may choose to retain in connection with
a Registration Statement filed pursuant to this Agreement (except as otherwise
provided herein); selling commissions or stock transfer taxes applicable to the
Registrable Securities registered on behalf of any Designated Holder; any other
expenses incurred by or on behalf of such Designated Holder in connection with
the offer and sale of such Designated Holder's Registrable Securities other than
expenses which the Company is expressly obligated to pay pursuant to this
Agreement.
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10.3-Registration Rights Agreement (2).DOC
2.9 INDEMNIFICATION.
(a) The Company agrees to indemnify and hold harmless, to the
fullest extent permitted by law, each Designated Holder and its general or
limited partners, officers, directors, members, managers, employees, advisors,
representatives, agents and Affiliates (collectively, the "REPRESENTATIVES"),
and each underwriter, if any, and any Person who controls such underwriter
(within the meaning of Section 15 of the Securities Act), from and against any
loss, claim, damage, liability, reasonable attorney's fees, cost or expense and
costs and expenses of investigating and defending any such claim (collectively,
the "LOSSES"), joint or several, and any action in respect thereof to which such
Designated Holder or its Representatives may become subject under the Securities
Act or otherwise, insofar as such Losses (or actions or proceedings, whether
commenced or threatened, in respect thereto) arise out of or are based upon (i)
any breach by the Company of any of its representations, warranties or covenants
contained in this Agreement, (ii) any untrue or alleged untrue statement of a
material fact contained in any Registration Statement, prospectus or preliminary
or summary prospectus or any amendment or supplement thereto or (iii) any
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading, and
the Company shall reimburse each such Designated Holder and its Representatives
for any reasonable legal or any other expenses incurred by them in connection
with investigating or defending or preparing to defend against any such Loss,
action or proceeding; provided, however, that the Company shall not be liable to
any such Designated Holder or other indemnitee in any such case to the extent
that any such Loss (or action or proceeding, whether commenced or threatened, in
respect thereof) arises out of or is based upon (x) an untrue statement or
alleged untrue statement or omission or alleged omission, made in such
Registration Statement, any such prospectus or preliminary or summary prospectus
or any amendment or supplement thereto, in reliance upon, and in conformity
with, written information prepared and furnished to the Company by any
Designated Holder or its Representatives expressly for use therein and, with
respect to any untrue statement or omission or alleged untrue statement or
omission made in any preliminary prospectus relating to the Registration
Statement, to the extent that a prospectus relating to the Registrable
Securities was required to be delivered by such Designated Holder under the
Securities Act in connection with such purchase, there was not sent or given to
such Person, at or prior to the written confirmation of the sale of such
Registrable Securities to such Person, a copy of the final prospectus that
corrects such untrue statement or alleged untrue statement or omission or
alleged omission if the Company had previously furnished copies thereof to such
Designated Holder or (y) use of a Registration Statement or the related
prospectus during a period when a stop order has been issued in respect of such
Registration Statement or any proceedings for that purpose have been initiated
or use of a prospectus when use of such prospectus has been suspended pursuant
to SECTIONS 2.6(E) or (i); provided that in each case, that such Holder received
prior written notice of such stop order, initiation of proceedings or suspension
from the Company. In no event, however, shall the Company be liable for
indirect, incidental or consequential or special damages of any kind.
(b) In connection with the filing of the Registration Statement by
the Company pursuant to this Agreement, the Designated Holders will furnish to
the Company in writing such information as the Company reasonably requests for
use in connection with such Registration Statement and the related prospectus
and, to the fullest extent permitted by law, each such Designated Holder will
indemnify and hold harmless the Company and its Representatives, and each
underwriter, if any, and any Person who controls such underwriter (within the
meaning of Section 15 of the Securities Act), from and against any Losses,
severally but not jointly, and any action in respect thereof to which the
Company and its Representatives may become subject under the Securities Act or
otherwise, insofar as such Losses (or actions or proceedings, whether commenced
or threatened, in respect thereof) arise out of or are based upon (i) the
purchase or sale of Registrable Securities during a suspension as set forth in
SECTION 2.6(E) or SECTION 2.6(I) in each case after receipt of written notice of
such suspension, (ii) any untrue or alleged untrue statement of a material fact
contained in the Registration Statement, prospectus or preliminary or
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10.3-Registration Rights Agreement (2).DOC
summary prospectus or any amendment or supplement thereto, or (iii) any omission
or alleged omission of a material fact required to be stated therein or
necessary to make the statements therein not misleading, but, with respect to
clauses (ii) and (iii) above, only to the extent that such untrue statement or
omission is made in such Registration Statement, any such prospectus or
preliminary or summary prospectus or any amendment or supplement thereto, in
reliance upon and in conformity with written information prepared and furnished
to the Company by such Designated Holder expressly for use therein or by failure
of such Designated Holder to deliver a copy of the Registration Statement or
prospectus or any amendments or supplements thereto, and such Designated Holder
will reimburse the Company and each Representative for any reasonable legal or
any other expenses incurred by them in connection with investigating or
defending or preparing to defend against any such Loss, action or proceeding;
provided, however, that such Designated Holder shall not be liable in any such
case to the extent that prior to the filing of any such Registration Statement
or prospectus or amendment or supplement thereto, such Designated Holder has
furnished in writing to the Company information expressly for use in such
Registration Statement or prospectus or any amendment or supplement thereto
which corrected or made not misleading information previously furnished to the
Company. The obligation of each Designated Holder to indemnify the Company and
its Representatives shall be limited to the net proceeds received by such
Designated Holder from the sale of Registrable Securities under such
Registration Statement. In no event, however, shall any Designated Holder be
liable for indirect, incidental or consequential or special damages of any kind.
(c) Promptly after receipt by any Person in respect of which
indemnity may be sought pursuant to SECTION 2.9(A) or 2.9(B) (an "INDEMNIFIED
PARTY") 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
Person against whom such indemnity may be sought (an "INDEMNIFYING PARTY"),
promptly notify the Indemnifying Party in writing of the claim or the
commencement of such action; provided, that the failure to notify the
Indemnifying Party shall not relieve the Indemnifying Party from any liability
which it may have to an Indemnified Party under SECTION 2.9(A) or 2.9(b) except
to the extent of any actual prejudice resulting therefrom. 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 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, that the Indemnified Party shall
have the right to employ separate counsel to represent the Indemnified Party and
its Representatives who may be subject to liability arising out of any claim in
respect of which indemnity may be sought by the Indemnified Party against the
Indemnifying Party, but the fees and expenses of such counsel shall be for the
account of such Indemnified Party unless (i) the Indemnifying Party and the
Indemnified Party shall have mutually agreed to the retention of such counsel or
(ii) in the written opinion of counsel to such Indemnified Party, representation
of both parties by the same counsel would be inappropriate due to actual or
potential conflicts of interest between them, it being understood, however, that
the Indemnifying Party shall not, in connection with any one such claim or
action or separate but substantially similar or related claims or actions in the
same jurisdiction arising out of the same general allegations or circumstances,
be liable for the fees and expenses of more than one separate firm of attorneys
(together with appropriate local counsel) at any time for all Indemnified
Parties. No Indemnifying Party shall, without the prior written consent of the
Indemnified Party, effect any settlement of any claim or pending or threatened
proceeding in respect of which the Indemnified Party is or could have been a
party and indemnity could have been sought hereunder by such Indemnified Party,
unless such settlement includes an unconditional release of such Indemnified
Party from all liability arising out of such claim or proceeding other than the
payment of monetary damages by the Indemnifying Party on behalf of the
Indemnified Party. Whether or not the defense of any claim or action is assumed
by the Indemnifying Party, such Indemnifying Party will not be
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10.3-Registration Rights Agreement (2).DOC
subject to any liability for any settlement made without its written consent,
which consent will not be unreasonably withheld.
(d) If the indemnification provided for in this SECTION 2.9 is
unavailable to the Indemnified Parties in respect of any Losses referred to
herein notwithstanding that this SECTION 2.9 by its terms provides for
indemnification in such case, then each Indemnifying Party, in lieu of
indemnifying such Indemnified Party, shall contribute to the amount paid or
payable by such Indemnified Party as a result of such Losses in such proportion
as is appropriate to reflect the relative benefits received by the Company on
the one hand and the Designated Holders on the other from the offering of the
Registrable Securities, or if such allocation is not permitted by applicable
law, in such proportion as is appropriate to reflect not only the relative
benefits but also the relative fault of the Company on the one hand and the
Designated Holders on the other in connection with the statements or omissions
which resulted in such Losses, as well as any other relevant equitable
considerations. The relative fault of the Company on the one hand and of each
Designated Holder on the other shall be determined by reference to, among other
things, whether any action taken, including any 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 such party, and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission.
The Company and the Designated Holders agree that it would not be just and
equitable if contribution pursuant to this SECTION 2.9(D) were determined by pro
rata allocation or by any other method of allocation which does not take account
of the equitable considerations referred to in the immediately preceding
paragraph. The amount paid or payable by an Indemnified Party as a result of the
Losses referred to in the immediately preceding paragraph shall be deemed to
include, subject to the limitations set forth above, any reasonable 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 2.9, no Designated Holder shall be required to
contribute any amount in excess of the amount by which the total price at which
the Registrable Securities of such Designated Holder were offered to the public
exceeds the amount of any Losses which such Designated Holder has otherwise paid
by reason of such 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. Each
Designated Holder's obligations to contribute pursuant to this SECTION 2.9 is
several in the proportion that the proceeds of the offering received by such
Designated Holder bears to the total proceeds of the offering received by all
the Designated Holders. The indemnification provided by this SECTION 2.9 shall
be a continuing right to indemnification with respect to sales of Registrable
Securities and shall survive the registration and sale of any Registrable
Securities by any Designated Holder and the expiration or termination of this
Agreement. The indemnity and contribution agreements contained herein are in
addition to any liability that any Indemnifying Party might have to any
Indemnified Party.
2.10 PARTICIPATION IN REGISTRATIONS.
(a) No Person may participate in any registration hereunder which
is underwritten unless such Person (i) agrees to sell such Person's securities
on the basis provided in any underwriting arrangements approved by the Person or
Persons entitled hereunder to approve such arrangements and (ii) completes and
executes all questionnaires, powers of attorney, indemnities, underwriting
agreements and other documents reasonably required under the terms of such
underwriting arrangements and this Agreement.
(b) Each Person that is participating in any registration under
this Agreement agrees that, upon receipt of any notice from the Company of the
happening of any event of the kind described in
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10.3-Registration Rights Agreement (2).DOC
SECTION 2.6(E) or SECTION 2.6(I) above, such Person will forthwith discontinue
the disposition of its Registrable Securities pursuant to the Registration
Statement and all use of the Registration Statement or any prospectus or related
document until such Person's receipt of the copies of a supplemented or amended
prospectus as contemplated by such SECTION 2.6(E) or SECTION 2.6(I) and, if so
directed by the Company, will deliver to the Company (at the Company's expense)
all copies, other than permanent file copies, then in such Designated Holder's
possession of such documents at the time of receipt of such notice. Furthermore,
each Designated Holder agrees that if such Designated Holder uses a prospectus
in connection with the offering and sale of any of the Registrable Securities,
the Designated Holder will use only the latest version of such prospectus
provided by Company.
2.11 COMPLIANCE. With respect to any registration under this Agreement,
each Designated Holder shall comply in all material respects with all applicable
securities and other laws, rules and regulations, including but not limited to
all rules and regulations of the SEC, the National Association of Securities
Dealers and any securities exchange or quotation service on which the Company's
securities are listed or quoted.
ARTICLE 3
TRANSFERS OF CERTAIN RIGHTS
3.1 TRANSFER. The rights granted to the Purchasers under this Agreement
may be transferred, subject to the provisions of SECTIONS 3.2 and 3.3; provided
that nothing contained herein shall be deemed to permit an assignment, transfer
or disposition of the Registrable Securities in violation of the terms and
conditions of the Securities Purchase Agreement or applicable law.
3.2 TRANSFEREES. Any transferee to whom rights under this Agreement are
transferred shall, before and as a condition to such transfer, deliver to the
Company a written instrument (i) stating the name and address of the transferor
and the transferee and the number of Registrable Securities with respect to
which the rights are intended to be transferred, and (ii) by which such
transferee agrees to be bound by the obligations imposed upon the Purchasers
under this Agreement to the same extent as if such transferee were a Purchaser
hereunder.
3.3 SUBSEQUENT TRANSFEREES. A transferee to whom rights are transferred
pursuant to this SECTION 3 may not again transfer such rights to any other
Person, other than as provided in SECTIONS 3.1 or 3.2 above.
ARTICLE 4
MISCELLANEOUS
4.1 RECAPITALIZATIONS, EXCHANGES, ETC. The provisions of this Agreement
shall apply to the full extent set forth herein with respect to (i) the
Registrable Securities, (ii) any and all shares of Common Stock into which the
Registrable Securities are converted, exchanged or substituted in any
recapitalization or other capital reorganization by the Company and (iii) any
and all equity securities of the Company or any successor or assign of the
Company (whether by merger, consolidation, sale of assets or otherwise) which
may be issued in respect of, in conversion of, in exchange for or in
substitution of, the Registrable Securities and shall be appropriately adjusted
for any stock dividends, splits, reverse splits, combinations, recapitalizations
and the like occurring after the date hereof. The Company shall cause any
successor or assign (whether by merger, consolidation, sale of assets or
otherwise) to enter into a new registration rights agreement with the Designated
Holders on terms substantially the same as this Agreement as a condition of any
such transaction.
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10.3-Registration Rights Agreement (2).DOC
4.2 NO INCONSISTENT AGREEMENTS. The Company has not and shall not enter
into any agreement with respect to its securities that is inconsistent with the
rights granted to the Purchasers in this Agreement. The parties acknowledge and
agree that the Company may grant registration rights hereafter, which shall be
pari passu with the registration rights of the Purchasers, and shall not be
deemed to conflict with this covenant.
4.3 AMENDMENTS AND WAIVERS. The provisions of this Agreement may be
amended and the Company may take action herein prohibited, or omit to perform
any act herein required to be performed by it, if, but only if, the Company has
obtained the written consent of Designated Holders of at least a majority of the
Registrable Securities then in existence.
4.4 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 shall be held to be
prohibited by or invalid under applicable law, such provision shall be
ineffective only to the extent of such prohibition or invalidity, without
invalidating the remainder of such provision or the remaining provisions of this
Agreement.
4.5 COUNTERPARTS. This Agreement may be executed in one or more
counterparts each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
4.6 NOTICES. Any notices required or permitted to be given under the
terms of this Agreement shall be sent by certified or registered mail (return
receipt requested) or delivered personally or by courier (including a recognized
overnight delivery service) or by facsimile and shall be effective five days
after being placed in the mail, if mailed by regular United States mail, or upon
receipt, if delivered personally or by courier (including a recognized overnight
delivery service) or by facsimile, in each case addressed to a party. The
addresses for such communications shall be:
If to the Company:
Tower Tech Holdings Inc.
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, III
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
With copy to:
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, P.C.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Esq.
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10.3-Registration Rights Agreement (2).DOC
If to the Purchaser:
Tontine Capital Partners, L.P.
▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
With copy to:
Barack ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP
Until June 30, 2007 to:
▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
After June 30, 2007 to:
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Esq.
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Each party shall provide notice to the other party of any change in address.
4.7 GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of Wisconsin, without regard to the
conflicts of laws rules or provisions.
4.8 FORUM; SERVICE OF PROCESS. Any legal suit, action or proceeding
brought by the Company, Purchasers, any other Designated Holders, any Person
entitled to indemnification or contribution hereunder, or any of their
respective Affiliates arising out of or based upon this Agreement shall be
instituted exclusively in any federal or state court in the State of Wisconsin,
and each such Person irrevocably waives any objection which it may now or
hereafter have to the laying of venue or any such proceeding, and irrevocably
submits to the jurisdiction of such courts in any such suit, action or
proceeding.
4.9 CAPTIONS. The captions, headings and arrangements used in this
Agreement are for convenience only and do not in any way limit or amplify the
terms and provisions hereof.
4.10 NO PREJUDICE. The terms of this Agreement shall not be construed
in favor of or against any party on account of its participation in the
preparation hereof.
4.11 WORDS IN SINGULAR AND PLURAL FORM. Words used in the singular form
in this Agreement shall be deemed to import the plural, and vice versa, as the
sense may require.
4.12 REMEDY FOR BREACH. The Company hereby acknowledges that in the
event of any breach or threatened breach by the Company of any of the provisions
of this Agreement, the Designated Holders would have no adequate remedy at law
and could suffer substantial and irreparable damage. Accordingly, the Company
hereby agrees that, in such event, the Designated Holders shall be entitled, and
17
10.3-Registration Rights Agreement (2).DOC
notwithstanding any election by any Designated Holder to claim damages, to
obtain a temporary and/or permanent injunction to restrain any such breach or
threatened breach or to obtain specific performance of any such provisions, all
without prejudice to any and all other remedies which any Designated Holders may
have at law or in equity.
4.13 SUCCESSORS AND ASSIGNS, THIRD PARTY BENEFICIARIES. This Agreement
and all of the provisions hereof shall be binding upon and inure to the benefit
of the parties hereto, each assignee of the Designated Holders pursuant to
ARTICLE 3 and their respective successors and assigns and executors,
administrators and heirs. Designated Holders are intended third party
beneficiaries of this Agreement and this Agreement may be enforced by such
Designated Holders.
4.14 ENTIRE AGREEMENT. This Agreement sets forth the entire agreement
and understanding between the parties as to the subject matter hereof and merges
and supersedes all prior discussions, agreements and understandings of any and
every nature among them.
4.15 ATTORNEYS' FEES. In the event of any action or suit based upon or
arising out of any actual or alleged breach by any party of any representation,
warranty, covenant or agreement in this Agreement, the prevailing party shall be
entitled to recover its reasonable attorneys' fees and expenses of such action
or suit from the other party in addition to any other relief ordered by any
court.
4.16 TERMINATION OF RIGHTS. All rights under this Agreement will
terminate as to a Designated Holder when that Designated Holders no longer holds
any Registrable Securities.
[SIGNATURE PAGE FOLLOWS]
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10.3-Registration Rights Agreement (2).DOC
IN WITNESS WHEREOF, the parties hereto have caused this Registration
Rights Agreement to be duly executed as of the date and year first written
above.
COMPANY:
TOWER TECH HOLDINGS INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, III
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Title: PRESIDENT
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PURCHASER:
TONTINE CAPITAL PARTNERS, L.P.
By: Tontine Capital Management, LLC, its
general partner
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, as managing member
TONTINE CAPITAL OVERSEAS MASTER FUND, L.P.
By: Tontine Capital Overseas GP, LLC,
its general partner
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, as managing member