EX-4.17



 





Exhibit 4.17




FORM OF




REGISTRATION RIGHTS AGREEMENT




between




FIRST SOLAR, INC.




and




The Stockholders a Party Hereto




Dated as of




 









 





Exhibit 4.17




          This REGISTRATION RIGHTS AGREEMENT (this “Agreement”), is made as of
        , between First Solar, Inc., a Delaware corporation (the “Company”), JWMA Partners, LLC
(“JWMA”), the Estate of John T. Walton (the “Estate”), JCL Holdings, LLC
(“JCL”) and Michael J. Ahearn (collectively, the “Stockholders”).




          WHEREAS, JWMA currently is a stockholder of the Company and the Estate, JCL and Michael J.
Ahearn are members of JWMA;




          WHEREAS, prior to the initial Equity Offering of the Company, JWMA plans to dissolve and,
following the dissolution of JWMA, the Estate, JCL and Michael J. Ahearn will become direct
stockholders of the Company; and




          WHEREAS, the Company has agreed to provide the Stockholders with certain registration rights.




          ACCORDINGLY, the parties hereto agree as follows:




     1. Certain Definitions.



          As used in this Agreement, capitalized terms not otherwise defined herein shall have the
meanings ascribed to them below:




     “Certificate of Incorporation” means the Amended and Restated Certificate of
Incorporation of the Company, as amended and in effect on the date hereof.



     “Common Stock” means the common stock, par value $0.001 per share, of the Company and
any equity securities issued or issuable in exchange for or with respect to the Common Stock by way
of a stock dividend, stock split or combination of shares or in connection with a reclassification,
recapitalization, merger, consolidation or other reorganization.



     “Common Stock Equivalent” means all options, warrants and other securities convertible
into, or exchangeable or exercisable for, (at any time or upon the occurrence of any event or
contingency and without regard to any vesting or other conditions to which such securities may be
subject), Common Stock.



     “Equity Offering” shall have the meaning set forth in the Goldman Purchase Agreement.



     “Expenses” means any and all fees and expenses incurred in connection with the
Company’s performance of or compliance with Article 2, including, without limitation: (i) SEC,
stock exchange or NASD registration and filing fees and all listing fees and fees with respect to
the inclusion of securities on the New York Stock Exchange or on any securities market on which the
Common Stock is listed or quoted, (ii) fees and expenses of compliance with state securities or
“blue sky” laws and in connection with the preparation of a “blue sky” survey, including without
limitation, reasonable fees and expenses of blue sky counsel, (iii) printing and copying expenses,
(iv) messenger and delivery expenses, (v) expenses incurred in connection with any road show, (vi)
fees and disbursements of counsel for the Company, (vii) with respect to each registration, the
fees and disbursements of one counsel for the selling Holder(s) (selected by the Majority
Participating Holders, in the case of a registration pursuant to Section 2.1, and



 









 







selected by the underwriter, in the case of a registration pursuant to Section 2.2), (viii)
fees and disbursements of all independent public accountants (including the expenses of any audit
and/or “cold comfort” letter) and fees and expenses of other persons, including special experts,
retained by the Company, (ix) fees and expenses payable to a Qualified Independent Underwriter (as
such term is defined in Schedule E to the By-Laws of the NASD) and (x) any other fees and
disbursements of underwriters, if any, customarily paid by issuers of securities.



     “Exchange Act” means the Securities Exchange Act of 1934, as amended.



     “Goldman Purchase Agreement” means the purchase agreement, dated as of February 22,
2005, between the Company and Goldman, Sachs & Co.



     “Holder” or “Holders” means any Person who is a signatory to this Agreement
and any Person who shall hereafter acquire and hold Registrable Securities.



     “Majority Participating Holders” means Participating Holders holding more than 50% of
the Registrable Securities proposed to be included in any offering of Registrable Securities by
such Participating Holders pursuant to Section 2.1 or Section 2.2 hereto.



     “Person” means any individual, corporation, limited liability company, limited or
general partnership, joint venture, association, joint-stock company, trust, unincorporated
organization or government or any agency or political subdivisions thereof.



     “Registrable Securities” means any shares of Common Stock held by the Holders. As to
any particular Registrable Securities, such securities shall cease to be Registrable Securities
when (A) a registration statement with respect to the sale of such securities shall have been
declared effective under the Securities Act and such securities shall have been disposed of in
accordance with such registration statement, or (B) such securities shall have been sold (other
than in a privately negotiated sale) pursuant to Rule 144 (or any successor provision) under the
Securities Act and in compliance with the requirements of paragraphs (f) and (g) of Rule 144
(notwithstanding the provisions of paragraph (k) of such Rule).



     “SEC” means the Securities and Exchange Commission.



     “Securities Act” means the Securities Act of 1933, as amended.



     “Trading Day” means a day on which the principal national securities exchange on which
the Common Stock is quoted, listed or admitted to trading is open for the transaction of business
or, if the Common Stock is not quoted, listed or admitted to trading on any national securities
exchange (or the Nasdaq Stock Market), any day other than a Saturday, Sunday, or a day on which
commercial banks in the City of New York are authorized or obligated by law or executive order to
close.



     2. Registration Rights.



          2.1. Demand Registrations.




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               (a) (i) Subject to Section 2.1(b) below, at any time after the initial Equity Offering, a
Holder or the Holders shall have the right to require the Company to file a registration statement
under the Securities Act covering all or a portion of Registrable Securities, by delivering a
written request therefor to the Company specifying the number of Registrable Securities to be
included in such registration by such Holders and the intended method of distribution thereof. All
such requests by any Holder pursuant to this Section 2.1(a)(i) are referred to herein as
“Demand Registration Requests,” and the registrations so requested are referred to herein
as “Demand Registrations” (with respect to any Demand Registration, the Holders making such
demand for registration being referred to as the “Initiating Holders”). As promptly as
practicable, but no later than ten days after receipt of a Demand Registration Request, the Company
shall give written notice (the “Demand Exercise Notice”) of such Demand Registration
Request to all Holders of record of Registrable Securities.



                              (ii) The Company, subject to Sections 2.3 and 2.6, shall include in a Demand Registration (x)
the Registrable Securities of the Initiating Holders and (y) the Registrable Securities of any
other Holder of Registrable Securities which shall have made a written request to the Company for
inclusion in such registration (together with the Initiating Holders, the “Participating
Holders”)(which request shall specify the maximum number of Registrable Securities intended to
be disposed of by such Participating Holders) within 60 days after the receipt of the Demand
Exercise Notice (or, 30 days if, at the request of the Initiating Holders, the Company states in
such written notice or gives telephonic notice to all Holders, with written confirmation to follow
promptly thereafter, that such registration will be on a Form S-3).



                              (iii) The Company shall, as expeditiously as possible but subject to Section 2.1(b), use its
commercially reasonable efforts to (x) effect such registration under the Securities Act of the
Registrable Securities which the Company has been so requested to register, for distribution in
accordance with such intended method of distribution and (y) if requested by the Majority
Participating Holders, obtain acceleration of the effective date of the registration statement
relating to such registration.



               (b) Notwithstanding anything to the contrary in Section 2.1(a), the Demand Registration rights
granted in Section 2.1(a) to the Holders are subject to the following limitations: (i) the Company
shall not be required to cause a registration pursuant to Section 2.1(a)(i) to be filed within 90
days or to be declared effective within a period of 180 days after the effective date of any other
registration statement of the Company filed pursuant to the Securities Act; (ii) if the Company, in
its good faith judgment, determines that any registration of Registrable Securities should not be
made or continued because it would materially interfere with any material financing, acquisition,
corporate reorganization or merger or other transaction or event involving the Company or any of
its subsidiaries or would otherwise not be in the best interests of the Company (a “Valid
Business Reason”), the Company may postpone filing a registration statement relating to a
Demand Registration Request until such Valid Business Reason no longer exists, but in no event
shall the Company avail itself of such right for more than 90 days, in the aggregate, in any period
of 365 consecutive days (such period of postponement or withdrawal under this clause (ii), the
“Postponement Period”); and the Company shall give notice of its determination to postpone
or withdraw a registration statement and of the fact that the Valid Business Reason for such
postponement or withdrawal no longer exists, in each case, promptly after the occurrence thereof;
(iii) the Company shall not be



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obligated to effect more than one Demand Registration under Section 2.1(a) for JWMA within any
365 day period; provided, however, the aggregate number of such Demand Registrations is unlimited;
(iv) the Company shall not be obligated to effect more than one Demand Registration under Section
2.1(a) for the Estate within any 365 day period; provided, however, the aggregate number of such
Demand Registrations is unlimited; (v) the Company shall not be obligated to effect more than five
Demand Registrations under Section 2.1(a) for JCL; (vi) the Company shall not be obligated to
effect more than three Demand Registrations under Section 2.1(a) for Michael J. Ahearn; and (vii)
the Company shall not be required to effect a Demand Registration unless the Registrable Securities
to be included in such registration either (A) have an aggregate anticipated offering price of at
least $25,000,000 (based on the then-current market price of the Common Stock) or (B) consist of
all remaining Registrable Securities.



          If the Company shall give any notice of postponement or withdrawal of any registration
statement pursuant to clause (ii) above, the Company shall not, during the period of postponement
or withdrawal, register any equity security of the Company, other than pursuant to a registration
statement on Form S-4 or S-8 (or an equivalent registration form then in effect). Each Holder of
Registrable Securities agrees that, upon receipt of any notice from the Company that the Company
has determined to withdraw any registration statement pursuant to clause (ii) above, such Holder
will discontinue its disposition of Registrable Securities pursuant to such registration statement
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 Holder’s possession of the prospectus
covering such Registrable Securities that was in effect at the time of receipt of such notice. If
the Company shall have withdrawn or prematurely terminated a registration statement filed under
Section 2.1(a)(i) (whether pursuant to clause (ii) above or as a result of any stop order,
injunction or other order or requirement of the SEC or any other governmental agency or court), the
Company shall not be considered to have effected an effective registration for the purposes of this
Agreement until the Company shall have filed a new registration statement covering the Registrable
Securities covered by the withdrawn registration statement and such registration statement shall
have been declared effective and shall not have been withdrawn. If the Company shall give any
notice of withdrawal or postponement of a registration statement, the Company shall, at such time
as the Valid Business Reason that caused such withdrawal or postponement no longer exists (but in
no event later than three months after the date of the postponement or withdrawal), use its
commercially reasonable efforts to effect the registration under the Securities Act of the
Registrable Securities covered by the withdrawn or postponed registration statement in accordance
with this Section 2.1 (unless the Initiating Holders shall have withdrawn such request, in which
case the Company shall not be considered to have effected an effective registration for the
purposes of this Agreement).




               (c) The Company, subject to Sections 2.3 and 2.6, may elect to include in any registration
statement and offering made pursuant to Section 2.1(a)(i), (i) authorized but unissued shares of
Common Stock or shares of Common Stock held by the Company as treasury shares and (ii) any other
shares of Common Stock which are requested to be included in such registration pursuant to the
exercise of piggyback rights granted by the Company which are not inconsistent with the rights
granted in, or otherwise conflict with the terms of, this Agreement (“Additional Piggyback
Rights”); provided, however, that such inclusion shall be permitted only to the extent that it
is pursuant to and subject to the terms of the underwriting agreement or arrangements, if any,
entered into by the Participating Holders.



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               (d) In connection with any Demand Registration, if the Initiating Holders collectively
represent the beneficial ownership of 10% or more of the outstanding Common Stock of the Company,
such Initiating Holders shall have the right to designate the lead managing underwriter in
connection with such registration and each other managing underwriter for such registration;
provided that in each case, each such underwriter is reasonably satisfactory to the Company. In
the case of the Initiating Holders collectively represent the beneficial ownership of less than 10%
of the outstanding Common Stock of the Company, the Company shall have the right to designate the
lead managing underwriter in connection with such registration and each other managing underwriter
for such registration; provided that in each case, each such underwriter is reasonably satisfactory
to the Initiating Holders.



          2.2. Piggyback Registrations.




               (a) If, at any time, the Company proposes or is required to register any of its equity
securities under the Securities Act (other than pursuant to (i) registrations on such form or
similar form(s) solely for registration of securities in connection with an employee benefit plan
or dividend reinvestment plan or an acquisition, merger or consolidation or (ii) a Demand
Registration under Section 2.1) on a registration statement on Form S-1, Form S-2 or Form S-3 (or
an equivalent general registration form then in effect), whether or not for its own account, the
Company shall give prompt written notice of its intention to do so to each of the Holders of record
of Registrable Securities. Upon the written request of any such Holder, made within 15 days
following the receipt of any such written notice (which request shall specify the maximum number of
Registrable Securities intended to be disposed of by such Holder and the intended method of
distribution thereof), the Company shall, subject to Sections 2.2(b), 2.3 and 2.6 hereof, use its
commercially reasonable efforts to cause all such Registrable Securities, the holders of which have
so requested the registration thereof, to be included in the registration statement with the
securities which the Company at the time proposes to register to permit the sale or other
disposition by the Holders (in accordance with the intended method of distribution thereof) of the
Registrable Securities to be so registered. No registration of Registrable Securities effected
under this Section 2.2(a) shall relieve the Company of its obligations to effect Demand
Registrations under Section 2.1 hereof.



               (b) If, at any time after giving written notice of its intention to register any equity
securities and prior to the effective date of the registration statement filed in connection with
such registration, the Company shall determine for any reason not to register or to delay
registration of such equity securities, the Company will give written notice of such determination
to all Holders of record of Registrable Securities and (i) in the case of a determination not to
register, shall be relieved of its obligation to register any Registrable Securities in connection
with such abandoned registration, without prejudice, however, to the rights of Holders under
Section 2.1, and (ii) in the case of a determination to delay such registration of its equity
securities, shall be permitted to delay the registration of such Registrable Securities for the
same period as the delay in registering such other equity securities.



               (c) Any Holder shall have the right to withdraw its request for inclusion of its Registrable
Securities in any registration statement pursuant to this Section 2.2 by giving written notice to
the Company of its request to withdraw; provided, however, that (i) such request must be made in
writing prior to the earlier of the execution of the underwriting



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agreement or the execution of the custody agreement with respect to such registration and (ii)
such withdrawal shall be irrevocable and, after making such withdrawal, a Holder shall no longer
have any right to include Registrable Securities in the registration as to which such withdrawal
was made.



          2.3. Allocation of Securities Included in Registration Statement.




               (a) If any requested registration made pursuant to Section 2.1 involves an underwritten
offering and the lead managing underwriter of such offering (the “Manager”) shall advise
the Company that, in its view, the number of securities requested to be included in such
registration by the Holders of Registrable Securities or any other persons (including those shares
of Common Stock requested by the Company to be included in such registration) exceeds the largest
number (the “Section 2.3(a) Sale Number”) that can be sold in an orderly manner in such
offering within a price range acceptable to the Majority Participating Holders, the Company shall
use its commercially reasonable efforts to include in such registration:



                              (i) first, all Registrable Securities requested to be included in such registration by the
Holders thereof; provided, however, that, if the number of such Registrable Securities exceeds the
Section 2.3(a) Sale Number, the number of such Registrable Securities (not to exceed the Section
2.3(a) Sale Number) to be included in such registration shall be allocated on a pro rata basis
among all Holders requesting that Registrable Securities be included in such registration, based on
the number of Registrable Securities then owned by each such Holder requesting inclusion in
relation to the number of Registrable Securities owned by all Holders requesting inclusion;



                              (ii) second, to the extent that the number of securities to be included pursuant to clause (i)
of this Section 2.3(a) is less than the Section 2.3(a) Sale Number, the remaining shares to be
included in such registration shall be allocated on a pro rata basis among all holders requesting
that securities be included in such registration pursuant to the exercise of Additional Piggyback
Rights (“Piggyback Securities”), based on the aggregate number of Piggyback Securities then
owned by each holder requesting inclusion in relation to the aggregate number of Piggyback
Securities owned by all holders requesting inclusion, up to the Section 2.3(a) Sale Number; and



                              (iii) third, to the extent that the number of securities to be included pursuant to clauses
(i) and (ii) of this Section 2.3(a) is less than the Section 2.3(a) Sale Number, any securities
that the Company proposes to register, up to the Section 2.3(a) Sale Number.



               If, as a result of the proration provisions of this Section 2.3(a), any Holder shall not be
entitled to include all Registrable Securities in a registration that such Holder has requested be
included, such Holder may elect to withdraw his request to include Registrable Securities in such
registration or may reduce the number requested to be included; provided, however, that (x) such
request must be made in writing prior to the earlier of the execution of the underwriting agreement
or the execution of the custody agreement with respect to such registration and (y) such withdrawal
shall be irrevocable and, after making such withdrawal,



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such Holder shall no longer have any right to include Registrable Securities in the
registration as to which such withdrawal was made.



               (b) If any registration pursuant to Section 2.2 involves an underwritten initial Equity
Offering that was initially proposed by the Company after the date hereof as a primary registration
of its securities and the Manager shall advise the Company that, in its view, the number of
securities requested to be included in such registration exceeds the number (the “Section
2.3(b) Sale Number”) that can be sold in an orderly manner in such registration within a price
range acceptable to the Company, the Company shall include in such registration:



                              (i) first, all Common Stock that the Company proposes to register for its own account;



                              (ii) second, to the extent that the number of securities to be included pursuant to clause (i)
of this Section 2.3(b) is less than the Section 2.3(b) Sale Number, any Common Stock requested to
be included in such registration by JWMA, the Estate, JCL and Michael J. Ahearn; and



                              (iii) third, to the extent that the number of securities to be included pursuant to clauses
(i) and (ii) of this Section 2.3(b) is less than the Section 2.3(b) Sale Number, the remaining
shares to be included in such registration shall be allocated on a pro rata basis among all holders
requesting that Registrable Securities or Piggyback Securities be included in such registration
pursuant to the exercise of piggyback rights pursuant to Section 2.2 of this Agreement or
Additional Piggyback Rights, based on the aggregate number of Registrable Securities and Piggyback
Securities then owned by each holder requesting inclusion in relation to the aggregate number of
Registrable Securities and Piggyback Securities owned by all holders requesting inclusion, up to
the Section 2.3(b) Sale Number.



               (c) If any registration pursuant to Section 2.2 involves an underwritten offering other than
an initial Equity Offering that was initially proposed by the Company after the date hereof as a
primary registration of its securities and the Manager shall advise the Company that, in its view,
the number of securities requested to be included in such registration exceeds the number (the
“Section 2.3(c) Sale Number”) that can be sold in an orderly manner in such registration
within a price range acceptable to the Company, the Company shall include in such registration:



                              (i) first, all Common Stock that the Company proposes to register for its own account; and



                              (ii) second, to the extent that the number of securities to be included pursuant to clause (i)
of this Section 2.3(c) is less than the Section 2.3(c) Sale Number, the remaining shares to be
included in such registration shall be allocated on a pro rata basis among all holders requesting
that Registrable Securities or Piggyback Securities be included in such registration pursuant to
the exercise of piggyback rights pursuant to Section 2.2 of this Agreement or Additional Piggyback
Rights, based on the aggregate number of Registrable Securities and Piggyback Securities then owned
by each holder requesting inclusion in relation



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to the aggregate number of Registrable Securities and Piggyback Securities owned by all
holders requesting inclusion, up to the Section 2.3(c) Sale Number.



               (d) If any registration pursuant to Section 2.2 involves an underwritten offering that was
initially proposed by holders of securities of the Company that have the right to require such
registration pursuant to an agreement entered into by the Company in accordance with Section 4.7
hereof (“Additional Demand Rights”) and the Manager shall advise the Company that, in its
view, the number of securities requested to be included in such registration exceeds the number
(the “Section 2.3(d) Sale Number”) that can be sold in an orderly manner in such
registration within a price range acceptable to the Company, the Company shall include in such
registration:



                              (i) first, all securities requested to be included in such registration by the holders of
Additional Demand Rights (“Additional Registrable Securities”), provided, however, that, if
the number of such Additional Registrable Securities exceeds the Section 2.3(d) Sale Number, the
number of such Additional Registrable Securities (not to exceed the Section 2.3(d) Sale Number) to
be included in such registration shall be allocated on a pro rata basis among all holders of
Additional Registrable Securities requesting that Additional Registrable Securities be included in
such registration, based on the number of Additional Registrable Securities then owned by each such
holder requesting inclusion in relation to the number of Additional Registrable Securities owned by
all of such holders requesting inclusion;



                              (ii) second, to the extent that the number of securities to be included pursuant to clause (i)
of this Section 2.3(d) is less than the Section 2.3(d) Sale Number, any Common Stock that the
Company proposes to register for its own account, up to the Section 2.3(d) Sale Number, and



                              (iii) third, to the extent that the number of securities to be included pursuant to clauses
(i), and (ii) of this Section 2.3(d) is less than the Section 2.3(d) Sale Number, the remaining
shares to be included in such registration shall be allocated on a pro rata basis among all holders
requesting that Registrable Securities or Piggyback Securities be included in such registration
pursuant to the exercise of piggyback rights pursuant to Section 2.2 of this Agreement or
Additional Piggyback Rights, based on the aggregate number of Registrable Securities and Piggyback
Securities then owned by each holder requesting inclusion in relation to the aggregate number of
Registrable Securities and Piggyback Securities owned by all holders requesting inclusion, up to
the Section 2.3(d) Sale Number.



          2.4. Registration Procedures. If and whenever the Company is required by the
provisions of this Agreement to use its commercially reasonable efforts to effect or cause the
registration of any Registrable Securities under the Securities Act as provided in this Agreement,
the Company shall, as expeditiously as possible:




               (a) prepare and file with the SEC a registration statement on an appropriate registration form
of the SEC for the disposition of such Registrable Securities in accordance with the intended
method of disposition thereof, which form shall be selected by the Company and shall comply as to
form in all material respects with the requirements of the applicable form and include all
financial statements required by the SEC to be filed therewith,



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and the Company shall use its commercially reasonable efforts to cause such registration
statement to become and remain effective (provided, however, that before filing a registration
statement or prospectus or any amendments or supplements thereto, or comparable statements under
securities or blue sky laws of any jurisdiction, or any free writing prospectus related thereto,
the Company will furnish to one counsel for the Holders participating in the planned offering
(selected by the Majority Participating Holders, in the case of a registration pursuant to Section
2.1, and selected by the lead managing underwriter, in the case of a registration pursuant to
Section 2.2) and the lead managing underwriter, if any, copies of all such documents proposed to be
filed (including all exhibits thereto), which documents will be subject to the reasonable review
and reasonable comment of such counsel, and the Company shall not file any registration statement
or amendment thereto, any prospectus or supplement thereto or any free writing prospectus related
thereto to which the holders of a majority of the Registrable Securities covered by such
registration statement or the underwriters, if any, shall reasonably object);



               (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 such period as any seller of Registrable Securities pursuant
to such registration statement shall request and to comply with the provisions of the Securities
Act with respect to the sale or other disposition of all Registrable Securities covered by such
registration statement in accordance with the intended methods of disposition by the seller or
sellers thereof set forth in such registration statement;



               (c) furnish, without charge, to each seller of such Registrable Securities and each
underwriter, if any, of the securities covered by such registration statement such number of copies
of such registration statement, each amendment and supplement thereto (in each case including all
exhibits), the prospectus included in such registration statement (including each preliminary
prospectus) in conformity with the requirements of the Securities Act, each free writing prospectus
utilized in connection therewith, and other documents, as such seller and underwriter may
reasonably request in order to facilitate the public sale or other disposition of the Registrable
Securities owned by such seller (the Company hereby consenting to the use in accordance with all
applicable law of each such registration statement (or amendment or post-effective amendment
thereto) and each such prospectus (or preliminary prospectus or supplement thereto) or free writing
prospectus by each such seller of Registrable Securities and the underwriters, if any, in
connection with the offering and sale of the Registrable Securities covered by such registration
statement or prospectus);



               (d) use its commercially reasonable efforts to register or qualify the Registrable Securities
covered by such registration statement under such other securities or “blue sky” laws of such
jurisdictions as any sellers of Registrable Securities or any managing underwriter, if any, shall
reasonably request in writing, and do any and all other acts and things which may be reasonably
necessary or advisable to enable such sellers or underwriter, if any, to consummate the disposition
of the Registrable Securities in such jurisdictions, except that in no event shall the Company be
required to qualify to do business as a foreign corporation in any jurisdiction where it would not,
but for the requirements of this paragraph (d), be required to be so qualified, to subject itself
to taxation in any such jurisdiction or to consent to general service of process in any such
jurisdiction;



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               (e) promptly notify each Holder selling Registrable Securities covered by such registration
statement and each managing underwriter, if any: (i) when the registration statement, any
pre-effective amendment, the prospectus or any prospectus supplement related thereto, any
post-effective amendment to the registration statement or any free writing prospectus has been
filed and, with respect to the registration statement or any post-effective amendment, when the
same has become effective; (ii) of any request by the SEC or state securities authority for
amendments or supplements to the registration statement or the prospectus related thereto or for
additional information; (iii) of the issuance by the SEC of any stop order suspending the
effectiveness of the registration statement or the initiation of any proceedings for that purpose;
(iv) of the receipt by the Company of any notification with respect to the suspension of the
qualification of any Registrable Securities for sale under the securities or blue sky laws of any
jurisdiction or the initiation of any proceeding for such purpose; (v) of the existence of any fact
of which the Company becomes aware which results in the registration statement, the prospectus
related thereto, any document incorporated therein by reference, any free writing prospectus or the
information conveyed to any purchaser at the time of sale to such purchaser containing an untrue
statement of a material fact or omitting to state a material fact required to be stated therein or
necessary to make any statement therein not misleading; and (vi) if at any time the representations
and warranties contemplated by any underwriting agreement, securities sale agreement, or other
similar agreement, relating to the offering shall cease to be true and correct in all material
respects; and, if the notification relates to an event described in clause (v), the Company shall
promptly prepare and furnish to each such seller and each underwriter, if any, a reasonable number
of copies of a prospectus supplemented or amended so that, as thereafter delivered to the
purchasers of such Registrable Securities, such prospectus shall not include an untrue statement of
a material fact or omit to state a material fact required to be stated therein or necessary to make
the statements therein in the light of the circumstances under which they were made not misleading;



               (f) comply with all applicable rules and regulations of the SEC, and make generally available
to its security holders, as soon as reasonably practicable after the effective date of the
registration statement (and in any event within 90 days after the end of such twelve month period
described hereafter), an earnings statement (which need not be audited) covering the period of at
least twelve consecutive months beginning with the first day of the Company’s first 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;



               (g) (i) cause all such Registrable Securities covered by such registration statement to be
listed on the New York Stock Exchange or the principal securities exchange on which similar
securities issued by the Company are then listed (if any), if the listing of such Registrable
Securities is then permitted under the rules of such exchange, or (ii) if no similar securities are
then so listed, to either cause all such Registrable Securities to be listed on a national
securities exchange or to secure designation of all such Registrable Securities as a Nasdaq
National Market “national market system security” within the meaning of Rule 11Aa2-1 of the
Exchange Act or, failing that, secure Nasdaq National Market authorization for such shares and,
without limiting the generality of the foregoing, take all actions that may be required by the
Company as the issuer of such Registrable Securities in order to facilitate the managing



10









 







underwriter’s arranging for the registration of at least two market makers as such with
respect to such shares with the National Association of Securities Dealers, Inc. (the
“NASD”);



               (h) provide and cause to be maintained a transfer agent and registrar for all such Registrable
Securities covered by such registration statement not later than the effective date of such
registration statement;



               (i) enter into such customary agreements (including, if applicable, an underwriting agreement)
and take such other actions as the holders of a majority of the Registrable Securities
participating in such offering shall reasonably request in order to expedite or facilitate the
disposition of such Registrable Securities (it being understood that the Holders of the Registrable
Securities which are to be distributed by any underwriters shall be parties to any such
underwriting agreement and may, at their option, require that the Company make to and for the
benefit of such Holders the representations, warranties and covenants of the Company which are
being made to and for the benefit of such underwriters);



               (j) use its commercially reasonable efforts to obtain an opinion from the Company’s counsel
and a “cold comfort” letter from the Company’s independent public accountants in customary form and
covering such matters as are customarily covered by such opinions and “cold comfort” letters
delivered to underwriters in underwritten public offerings, which opinion and letter shall be
reasonably satisfactory to the underwriter, if any, and furnish to each Holder participating in the
offering and to each underwriter, if any, a copy of such opinion and letter addressed to such
Holder or underwriter;



               (k) deliver promptly to each Holder participating in the offering and each underwriter, if
any, copies of all correspondence between the SEC and the Company, its counsel or auditors and all
memoranda relating to discussions with the SEC or its staff with respect to the registration
statement, other than those portions of any such memoranda which contain information subject to
attorney-client privilege with respect to the Company, and, upon receipt of such confidentiality
agreements as the Company may reasonably request, make reasonably available for inspection by any
seller of such Registrable Securities covered by such registration statement, by any underwriter,
if any, participating in any disposition to be effected pursuant to such registration statement and
by any attorney, accountant or other agent retained by any such seller or any such underwriter, all
pertinent financial and other records, pertinent corporate documents and properties of the Company,
and cause all of the Company’s officers, directors and employees to supply all information
reasonably requested by any such seller, underwriter, attorney, accountant or agent in connection
with such registration statement;



               (l) use its commercially reasonable efforts to obtain the withdrawal of any order suspending
the effectiveness of the registration statement;



               (m) provide a CUSIP number for all Registrable Securities, not later than the effective date
of the registration statement;



               (n) make reasonably available its employees and personnel for participation in “road shows”
and other marketing efforts and otherwise provide reasonable assistance to the underwriters (taking
into account the needs of the Company’s businesses and



11









 







the requirements of the marketing process) in the marketing of Registrable Securities in any
underwritten offering;



               (o) promptly prior to the filing of any document which is to be incorporated by reference into
the registration statement or the prospectus (after the initial filing of such registration
statement), and prior to the filing of any free writing prospectus, provide copies of such document
to counsel for the selling holders of Registrable Securities and to each managing underwriter, if
any, and make the Company’s representatives reasonably available for discussion of such document
and make such changes in such document concerning the selling holders prior to the filing thereof
as counsel for such selling holders or underwriters may reasonably request;



               (p) furnish to the Holder participating in the offering and the managing underwriter, without
charge, at least one signed copy, and to each other Holder participating in the offering, without
charge, at least one photocopy of a signed copy, of the registration statement and any
post-effective amendments thereto, including financial statements and schedules, all documents
incorporated therein by reference, all exhibits (including those incorporated by reference) and any
free writing prospectus utilized in connection therewith;



               (q) cooperate with the sellers of Registrable Securities and the managing underwriter, if any,
to facilitate the timely preparation and delivery of certificates not bearing any restrictive
legends representing the Registrable Securities to be sold, and cause such Registrable Securities
to be issued in such denominations and registered in such names in accordance with the underwriting
agreement prior to any sale of Registrable Securities to the underwriters or, if not an
underwritten offering, in accordance with the instructions of the sellers of Registrable Securities
at least three business days prior to any sale of Registrable Securities and instruct any transfer
agent and registrar of Registrable Securities to release any stop transfer orders in respect
thereof;



               (r) take all such other commercially reasonable actions as are necessary or advisable in order
to expedite or facilitate the disposition of such Registrable Securities;



               (s) take no direct or indirect action prohibited by Regulation M under the Exchange Act;
provided, however, that to the extent that any prohibition is applicable to the Company, the
Company will take such action as is necessary to make any such prohibition inapplicable;



               (t) take all reasonable action to ensure that any free writing prospectus utilized in
connection with any registration covered by Section 2.1 or 2.2 complies in all material respects
with the Securities Act, is filed in accordance with the Securities Act to the extent required
thereby, is retained in accordance with the Securities Act to the extent required thereby and, when
taken together with the related prospectus, will not contain any untrue statement of a material
fact or omit to state a material fact necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading; and



12









 





               (u) in connection with any underwritten offering, if at any time the information conveyed to a
purchaser at the time of sale includes any untrue statement of a material fact or omits to state
any material fact necessary in order to make the statements therein, in light of the circumstances
under which they were made, not misleading, promptly file with the SEC such amendments or
supplements to such information as may be necessary so that the statements as so amended or
supplemented will not, in light of the circumstances, be misleading.



          To the extent the Company is a well-known seasoned issuer (as defined in Rule 405 under the
Securities Act) (a “WKSI”) at the time any Demand Registration Request is submitted to the
Company, and such Demand Registration Request requests that the Company file an automatic shelf
registration statement (as defined in Rule 405 under the Securities Act) (an “automatic shelf
registration statement”) on Form S-3, the Company shall file an automatic shelf registration
statement which covers those Registrable Securities which are requested to be registered. The
Company shall use its commercially reasonable efforts to remain a WKSI (and not become an
ineligible issuer (as defined in Rule 405 under the Securities Act)) during the period during which
such automatic shelf registration statement is required to remain effective. If the Company does
not pay the filing fee covering the Registrable Securities at the time the automatic shelf
registration statement is filed, the Company agrees to pay such fee at such time or times as the
Registrable Securities are to be sold. If the automatic shelf registration statement has been
outstanding for at least three years, at the end of the third year the Company shall refile a new
automatic shelf registration statement covering the Registrable Securities. If at any time when
the Company is required to re-evaluate its WKSI status the Company determines that it is not a
WKSI, the Company shall use its commercially reasonable efforts to refile the shelf registration
statement on Form S-3 and, if such form is not available, Form S-1 and keep such registration
statement effective during the period during which such registration statement is required to be
kept effective.




          If the Company files any shelf registration statement for the benefit of the holders of any of
its securities other than the Holders, the Company agrees that it shall include in such
registration statement such disclosures as may be required by Rule 430B (referring to the unnamed
selling security holders in a generic manner by identifying the initial offering of the securities
to the Holders) in order to ensure that the Holders may be added to such shelf registration
statement at a later time through the filing of a prospectus supplement rather than a
post-effective amendment.




          The Company may require as a condition precedent to the Company’s obligations under this
Section 2.4 that each seller of Registrable Securities as to which any registration is being
effected furnish the Company such information in writing regarding such seller and the distribution
of such Registrable Securities as the Company may from time to time reasonably request provided
that such information is necessary for the Company to consummate such registration and shall be
used only in connection with such registration.




          Each seller of Registrable Securities agrees that upon receipt of any notice from the Company
of the happening of any event of the kind described in clause (v) of paragraph (e) of this Section
2.4, such seller will discontinue such seller’s disposition of Registrable Securities pursuant to
the registration statement covering such Registrable Securities until such seller’s receipt of the
copies of the supplemented or amended prospectus contemplated by paragraph (e)


13









 







of this Section 2.4 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 seller’s possession
of the prospectus covering such Registrable Securities that was in effect at the time of receipt of
such notice. In the event the Company shall give any such notice, the applicable period mentioned
in paragraph (b) of this Section 2.4 shall be extended by the number of days during such period
from and including the date of the giving of such notice to and including the date when each seller
of any Registrable Securities covered by such registration statement shall have received the copies
of the supplemented or amended prospectus contemplated by paragraph (e) of this Section 2.4.




          If any such registration statement or comparable statement under “blue sky” laws refers to any
Holder by name or otherwise as the Holder of any securities of the Company, then such Holder shall
have the right to require (i) the insertion therein of language, in form and substance reasonably
satisfactory to such Holder and the Company, to the effect that the holding by such Holder of such
securities is not to be construed as a recommendation by such Holder of the investment quality of
the Company’s securities covered thereby and that such holding does not imply that such Holder will
assist in meeting any future financial requirements of the Company, or (ii) in the event that such
reference to such Holder by name or otherwise is not in the judgment of the Company, as advised by
counsel, required by the Securities Act or any similar federal statute or any state “blue sky” or
securities law then in force, the deletion of the reference to such Holder.




          2.5. Registration Expenses.




               (a) The Company shall pay all Expenses (x) with respect to any Demand Registration whether or
not it becomes effective or remains effective for the period contemplated by Section 2.4(b) and (y)
with respect to any registration effected under Section 2.2.



               (b) Notwithstanding the foregoing, (x) the provisions of this Section 2.5 shall be deemed
amended to the extent necessary to cause these expense provisions to comply with “blue sky” laws of
each state in which the offering is made and (y) in connection with any registration hereunder,
each Holder of Registrable Securities being registered shall pay all underwriting discounts and
commissions and any transfer taxes, if any, attributable to the sale of such Registrable
Securities, pro rata with respect to payments of discounts and commissions in accordance with the
number of shares sold in the offering by such Holder, and (z) the Company shall, in the case of all
registrations under this Article 2, be responsible for all its internal expenses (including,
without limitation, all salaries and expenses of its officers and employees performing legal or
accounting duties).



          2.6. Certain Limitations on Registration Rights. In the case of any registration
under Section 2.1 pursuant to an underwritten offering, or, in the case of a registration under
Section 2.2, if the Company has determined to enter into an underwriting agreement in connection
therewith, all securities to be included in such registration shall be subject to an underwriting
agreement and no Person may participate in such registration unless such Person agrees to sell such
Person’s securities on the basis provided therein and, subject to Section 3.1 hereof, completes and
executes all reasonable questionnaires, and other documents (including


14









 







custody agreements and powers of attorney) which must be executed in connection therewith, and
provides such other information to the Company or the underwriter as may be necessary to register
such Person’s securities.




          2.7. Limitations on Sale or Distribution of Other Securities. (a) Each seller of
Registrable Securities agrees, (i) to the extent requested in writing by a managing underwriter, if
any, of any registration effected pursuant to Section 2.1, not to sell, transfer or otherwise
dispose of, including any sale pursuant to Rule 144 under the Securities Act, any Common Stock, or
any other equity security of the Company or any security convertible into or exchangeable or
exercisable for any equity security of the Company (other than as part of such underwritten public
offering) during the time period reasonably requested by the managing underwriter, not to exceed
180 days (and the Company hereby also so agrees (except that the Company may effect any sale or
distribution of any such securities pursuant to a registration on Form S-4 (if reasonably
acceptable to such managing underwriter) or Form S-8, or any successor or similar form which is
then in effect or upon the conversion, exchange or exercise of any then outstanding Common Stock
Equivalent) to use its commercially reasonable efforts to cause each holder of any equity security
or any security convertible into or exchangeable or exercisable for any equity security of the
Company purchased from the Company at any time other than in a public offering so to agree), and
(ii) to the extent requested in writing by a managing underwriter of any underwritten public
offering effected by the Company for its own account, not sell any Common Stock (other than as part
of such underwritten public offering) during the time period reasonably requested by the managing
underwriter, which period shall not exceed 180 days.




               (b) The Company hereby agrees that, if it shall previously have received a request for
registration pursuant to Section 2.1 or 2.2, and if such previous registration shall not have been
withdrawn or abandoned, the Company shall not sell, transfer, or otherwise dispose of, any Common
Stock, or any other equity security of the Company or any security convertible into or exchangeable
or exercisable for any equity security of the Company (other than as part of such underwritten
public offering, a registration on Form S-4 or Form S-8 or any successor or similar form which is
then in effect or upon the conversion, exchange or exercise of any then outstanding Common Stock
Equivalent), until a period of 90 days shall have elapsed from the effective date of such previous
registration; and the Company shall so provide in any registration rights agreements hereafter
entered into with respect to any of its securities.



          2.8. No Required Sale. Nothing in this Agreement shall be deemed to create an
independent obligation on the part of any Holder to sell any Registrable Securities pursuant to any
effective registration statement.




          2.9. Indemnification. (a) In the event of any registration of any securities of the
Company under the Securities Act pursuant to this Article 2, the Company will, and hereby agrees
to, indemnify and hold harmless, to the fullest extent permitted by law, each Holder of Registrable
Securities, its directors, officers, fiduciaries, employees, stockholders, members or general and
limited partners (and the directors, officers, employees and stockholders thereof), and each other
Person, if any, who controls such Holder within the meaning of the Securities Act, from and against
any and all losses, claims, damages or liabilities, joint or several, actions or proceedings
(whether commenced or threatened) and expenses (including reasonable fees of counsel and any
amounts paid in any settlement effected with the Company’s consent, which


15









 






consent shall not be unreasonably withheld or delayed) to which each such indemnified party
may become subject under the Securities Act or otherwise in respect thereof (collectively,
“Claims”), insofar as such Claims arise out of or are based upon (i) any untrue statement
or alleged untrue statement of a material fact contained in any registration statement under which
such securities were registered under the Securities Act or the omission or alleged omission to
state therein a material fact required to be stated therein or necessary to make the statements
therein not misleading, (ii) any untrue statement or alleged untrue statement of a material fact
contained in any preliminary, final or summary prospectus or any amendment or supplement thereto,
together with the documents incorporated by reference therein, or any free writing prospectus
utilized in connection therewith, or the omission or alleged omission to state therein a material
fact required to be stated therein or necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading, (iii) any untrue statement
or alleged untrue statement of a material fact in the information conveyed to any purchaser at the
time of the sale to such purchaser, or the omission or alleged omission to state therein a material
fact required to be stated therein, or (iv) any violation by the Company of any federal, state or
common law rule or regulation applicable to the Company and relating to action required of or
inaction by the Company in connection with any such registration, and the Company will reimburse
any such indemnified party for any legal or other expenses reasonably incurred by such indemnified
party in connection with investigating or defending any such Claim as such expenses are incurred;
provided, however, that the Company shall not be liable to any such indemnified party in any such
case to the extent such Claim arises out of or is based upon any untrue statement or alleged untrue
statement of a material fact or omission or alleged omission of a material fact made in such
registration statement or amendment thereof or supplement thereto or in any such prospectus or any
preliminary, final or summary prospectus or free writing prospectus in reliance upon and in
conformity with written information furnished to the Company by or on behalf of such indemnified
party specifically for use therein. Such indemnity and reimbursement of expenses shall remain in
full force and effect regardless of any investigation made by or on behalf of such indemnified
party and shall survive the transfer of such securities by such Holder.




               (b) Each Holder of Registrable Securities that are included in the securities as to which any
registration under Section 2.1 or 2.2 is being effected shall, severally and not jointly, indemnify
and hold harmless (in the same manner and to the same extent as set forth in paragraph (a) of this
Section 2.9) to the extent permitted by law the Company, its officers and directors, each Person
controlling the Company within the meaning of the Securities Act and all other prospective sellers
and their respective directors, officers, fiduciaries, managing directors, employees, agents,
affiliates, consultants, representatives, successors, assigns, general and limited partners,
stockholders and respective controlling Persons with respect to any untrue statement or alleged
untrue statement of any material fact in, or omission or alleged omission of any material fact
from, such registration statement, any preliminary, final or summary prospectus contained therein,
or any amendment or supplement thereto, or any free writing prospectus utilized in connection
therewith, if such statement or alleged statement or omission or alleged omission was made in
reliance upon and in conformity with written information furnished to the Company or its
representatives by or on behalf of such Holder specifically for use therein and reimburse such
indemnified party for any legal or other expenses reasonably incurred in connection with
investigating or defending any such Claim as such expenses are incurred; provided, however, that
the aggregate amount which any such Holder shall be required to pay



16









 







pursuant to this Section 2.9(b) and Sections 2.9(c), (e) and (f) shall in no case be greater
than the amount of the net proceeds received by such Holder upon the sale of the Registrable
Securities pursuant to the registration statement giving rise to such claim. Such indemnity and
reimbursement of expenses shall remain in full force and effect regardless of any investigation
made by or on behalf of such indemnified party and shall survive the transfer of such securities by
such Holder.



               (c) Indemnification similar to that specified in the preceding paragraphs (a) and (b) of this
Section 2.9 (with appropriate modifications) shall be given by the Company and each seller of
Registrable Securities with respect to any required registration or other qualification of
securities under any state securities and “blue sky” laws.



               (d) Any Person entitled to indemnification under this Agreement shall notify promptly the
indemnifying party in writing of the commencement of any action or proceeding with respect to which
a claim for indemnification may be made pursuant to this Section 2.9, but the failure of any such
Person to provide such notice shall not relieve the indemnifying party of its obligations under the
preceding paragraphs of this Section 2.9, except to the extent the indemnifying party is materially
prejudiced thereby and shall not relieve the indemnifying party from any liability which it may
have to any such Person otherwise than under this Article 2. In case any action or proceeding is
brought against an indemnified party and it shall notify the indemnifying party of the commencement
thereof, the indemnifying party shall be entitled to participate therein and, unless in the
reasonable opinion of outside counsel to the indemnified party a conflict of interest between such
indemnified and indemnifying parties may exist in respect of such claim, to assume the defense
thereof jointly with any other indemnifying party similarly notified, to the extent that it
chooses, with counsel reasonably satisfactory to such indemnified party, and after notice from the
indemnifying party to such indemnified party that it so chooses, the indemnifying party shall not
be liable to such indemnified party for any legal or other expenses subsequently incurred by such
indemnified party in connection with the defense thereof other than reasonable costs of
investigation; provided, however, that (i) if the indemnifying party fails to take reasonable steps
necessary to defend diligently the action or proceeding within 20 days after receiving notice from
such indemnified party; or (ii) if such indemnified party who is a defendant in any action or
proceeding which is also brought against the indemnifying party reasonably shall have concluded
that there may be one or more legal defenses available to such indemnified party which are not
available to the indemnifying party; or (iii) if representation of both parties by the same counsel
is otherwise inappropriate under applicable standards of professional conduct, then, in any such
case, the indemnified party shall have the right to assume or continue its own defense as set forth
above (but with no more than one firm of counsel for all indemnified parties in each jurisdiction,
except to the extent any indemnified party or parties reasonably shall have concluded that there
may be legal defenses available to such party or parties which are not available to the other
indemnified parties or to the extent representation of all indemnified parties by the same counsel
is otherwise inappropriate under applicable standards of professional conduct) and the indemnifying
party shall be liable for any expenses therefor. No indemnifying party shall, without the written
consent of the indemnified party, which consent shall not be unreasonably withheld, effect the
settlement or compromise of, or consent to the entry of any judgment with respect to, any pending
or threatened action or claim in respect of which indemnification or contribution may be sought
hereunder (whether or not the indemnified party is an actual or potential party to such action or



17









 







claim) unless such settlement, compromise or judgment (A) includes an unconditional release of
the indemnified party from all liability arising out of such action or claim and (B) does not
include a statement as to or an admission of fault, culpability or a failure to act, by or on
behalf of any indemnified party.



               (e) If for any reason the foregoing indemnity is unavailable or is insufficient to hold
harmless an indemnified party under Sections 2.9(a), (b) or (c), then each indemnifying party shall
contribute to the amount paid or payable by such indemnified party as a result of any Claim in such
proportion as is appropriate to reflect the relative fault of the indemnifying party, on the one
hand, and the indemnified party, on the other hand, with respect to such offering of securities.
The relative fault shall be determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged omission to state a material
fact relates to information supplied by the indemnifying party or the indemnified party and the
parties’ relative intent, knowledge, access to information and opportunity to correct or prevent
such untrue statement or omission. If, however, the allocation provided in the second preceding
sentence is not permitted by applicable law, then each indemnifying party shall contribute to the
amount paid or payable by such indemnified party in such proportion as is appropriate to reflect
not only such relative faults but also the relative benefits of the indemnifying party and the
indemnified party as well as any other relevant equitable considerations. The parties hereto agree
that it would not be just and equitable if contributions pursuant to this Section 2.9(e) were to be
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 preceding sentences of this Section 2.9(e). The
amount paid or payable in respect of any Claim shall be deemed to include any legal or other
expenses reasonably incurred by such indemnified party in connection with investigating or
defending any such Claim. 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. Notwithstanding anything in this section 2.9(e) to
the contrary, no indemnifying party (other than the Company) shall be required pursuant to this
section 2.9(e) to contribute any amount in excess of the net proceeds received by such indemnifying
party from the sale of Registrable Securities in the offering to which the losses, claims, damages
or liabilities of the indemnified parties relate, less the amount of any indemnification payment
made by such indemnifying party pursuant to Sections 2.9(b) and (c).



               (f) The indemnity and contribution agreements contained herein shall be in addition to any
other rights to indemnification or contribution which any indemnified party may have pursuant to
law or contract and shall remain operative and in full force and effect regardless of any
investigation made or omitted by or on behalf of any indemnified party and shall survive the
transfer of the Registrable Securities by any such party.



               (g) The indemnification and contribution required by this Section 2.9 shall be made by
periodic payments of the amount thereof during the course of the investigation or defense, as and
when bills are received or expense, loss, damage or liability is incurred.



     3. Underwritten Offerings.



18









 





          3.1. Requested Underwritten Offerings. If requested by the underwriters for any
underwritten offering by the Holders pursuant to a registration requested under Section 2.1, the
Company shall enter into a customary underwriting agreement with the underwriters. Such
underwriting agreement shall be satisfactory in form and substance to the Majority Participating
Holders and shall contain such representations and warranties by, and such other agreements on the
part of, the Company and such other terms as are generally prevailing in agreements of that type,
including, without limitation, indemnities and contribution agreements. Any Holder participating
in the offering shall be a party to such underwriting agreement and may, at its option, require
that any or all of the representations and warranties by, and the other agreements on the part of,
the Company to and for the benefit of such underwriters shall also be made to and for the benefit
of such Holder and that any or all of the conditions precedent to the obligations of such
underwriters under such underwriting agreement be conditions precedent to the obligations of such
Holder; provided, however, that the Company shall not be required to make any representations or
warranties with respect to written information specifically provided by a selling Holder for
inclusion in the registration statement. Each such Holder shall not be required to make any
representations or warranties to or agreements with the Company or the underwriters other than
representations, warranties or agreements regarding such Holder, its ownership of and title to the
Registrable Securities, and its intended method of distribution; and any liability of such Holder
to any underwriter or other Person under such underwriting agreement shall be limited to liability
arising from breach of its representations and warranties and shall be limited to an amount equal
to the proceeds (net of expenses and underwriting discounts and commissions) that it derives from
such registration.




          3.2. Piggyback Underwritten Offerings. In the case of a registration pursuant to
Section 2.2 hereof, if the Company shall have determined to enter into an underwriting agreement in
connection therewith, any Registrable Securities to be included in such registration shall be
subject to such underwriting agreement. Any Holder participating in such registration may, at its
option, require that any or all of the representations and warranties by, and the other agreements
on the part of, the Company to and for the benefit of such underwriters shall also be made to and
for the benefit of such Holder and that any or all of the conditions precedent to the obligations
of such underwriters under such underwriting agreement be conditions precedent to the obligations
of such Holder. Each such Holder shall not be required to make any representations or warranties
to or agreements with the Company or the underwriters other than representations, warranties or
agreements regarding such Holder, its ownership of and title to the Registrable Securities, and its
intended method of distribution; and any liability of such Holder to any underwriter or other
Person under such underwriting agreement shall be limited to liability arising from breach of its
representations and warranties and shall be limited to an amount equal to the proceeds (net of
expenses and underwriting discounts and commissions) that it derives from such registration.




     4. General.



          4.1. Adjustments Affecting Registrable Securities. The Company agrees that it shall
not effect or permit to occur any combination or subdivision of shares of Common Stock which would
adversely affect the ability of any Holder of any Registrable Securities to include such
Registrable Securities in any registration contemplated by this Agreement or the marketability of
such Registrable Securities in any such registration. The Company agrees that it


19









 







           will take all reasonable steps necessary to effect a subdivision of shares if in the
reasonable judgment of (a) the Majority Participating Holders or (b) the managing underwriter for
the offering in respect of such Demand Registration Request, such subdivision would enhance the
marketability of the Registrable Securities. Each Holder agrees to vote all of its shares of
capital stock in a manner, and to take all other actions necessary, to permit the Company to carry
out the intent of the preceding sentence including, without limitation, voting in favor of an
amendment to the Company’s Certificate of Incorporation in order to increase the number of
authorized shares of capital stock of the Company.




          4.2. Rule 144. The Company covenants that (i) upon such time as it becomes, and so
long as it remains, subject to the reporting provisions of the Exchange Act, it will timely file
the reports required to be filed by it under the Securities Act or the Exchange Act (including, but
not limited to, the reports under Sections 13 and 15(d) of the Exchange Act referred to in
subparagraph (c)(1) of Rule 144 under the Securities Act), and (ii) will take such further action
as any Holder of Registrable Securities may reasonably request, all to the extent required from
time to time to enable such Holder to sell Registrable Securities without registration under the
Securities Act within the limitation of the exemptions provided by (A) Rule 144 under the
Securities Act, as such Rule may be amended from time to time, or (B) any similar rule or
regulation hereafter adopted by the SEC. Upon the request of any Holder of Registrable Securities,
the Company will deliver to such Holder a written statement as to whether it has complied with such
requirements.




          4.3. Nominees for Beneficial Owners. If Registrable Securities are held by a nominee
for the beneficial owner thereof, the beneficial owner thereof may, at its option, be treated as
the Holder of such Registrable Securities for purposes of any request or other action by any Holder
or Holders of Registrable Securities pursuant to this Agreement (or any determination of any number
or percentage of shares constituting Registrable Securities held by any Holder or Holders of
Registrable Securities contemplated by this Agreement), provided that the Company shall have
received assurances reasonably satisfactory to it of such beneficial ownership.




          4.4. Amendments and Waivers. The terms and provisions of this Agreement may be
modified or amended, or any of the provisions hereof waived, temporarily or permanently, in a
writing executed and delivered by the Company and each of the Holders. No waiver of any of the
provisions of this Agreement shall be deemed to or shall constitute a waiver of any other provision
hereof (whether or not similar). No delay on the part of any party in exercising any right, power
or privilege hereunder shall operate as a waiver thereof.




          4.5. Notices. All notices, requests, claims, demands and other communications
required or permitted to be given hereunder will be in writing and will be given when delivered by
hand or sent by registered or certified mail (postage prepaid, return receipt requested) or by
overnight courier (providing proof of delivery) or by telecopy (providing confirmation of
transmission). All such notices, requests, claims, demands or other communications will be
addressed as follows:




               (a)   if to the Company, to:



20









 




First Solar, Inc.

4050 E. Cotton Center #6-68

Phoenix , Arizona 85040

Telephone No.: (602) 414-9300

Fax No.: (602) 414-9400

Attention: Chief Executive Officer



With a copy to:



Cravath, Swaine & Moore LLP

Worldwide Plaza

825 Eighth Avenue

New York, New York 10019

Telephone No.: (212) 474-1000

Fax No.: (212) 474-3700

Attention: John Gaffney, Esq.



(b)   if to JWMA, to:



Richard Chapman

Walton Enterprises

125 West Central, Suite 218

Bentonville, Arkansas 72712



With a copy to:



Cravath, Swaine & Moore LLP

Worldwide Plaza

825 Eighth Avenue

New York, New York 10019

Telephone No.: (212) 474-1000

Fax No.: (212) 474-3700

Attention: Daniel Mosley, Esq.



(c)   if to the Estate, to :



Richard Chapman

Walton Enterprises

125 West Central, Suite 218

Bentonville, Arkansas 72712



With a copy to:



Cravath, Swaine & Moore LLP

Worldwide Plaza

825 Eighth Avenue



New York, New York 10019




21









 







Telephone No.: (212) 474-1000

Fax No.: (212) 474-3700

Attention: Daniel Mosley, Esq.



(d)   If to JCL, to:



Richard Chapman

Walton Enterprises

125 West Central, Suite 218

Bentonville, Arkansas 72712



With a copy to:



Cravath, Swaine & Moore LLP

Worldwide Plaza

825 Eighth Avenue

New York, New York 10019

Telephone No.: (212) 474-1000

Fax No.: (212) 474-3700

Attention: Daniel Mosley, Esq.



(e)   If to Michael J. Ahearn, to:



First Solar, Inc.

4050 E. Cotton Center #6-68

Phoenix , Arizona 85040

Telephone No.: (602) 414-9300

Fax No.: (602) 414-9400

Attention: Michael J. Ahearn



or such other address as the Company or the Stockholders shall have specified to the other party in
writing in accordance with this Section 4.5.




          4.6. Miscellaneous.




               (a) This Agreement shall be binding upon and inure to the benefit of and be enforceable by the
parties hereto and the respective successors, personal representatives and assigns of the parties
hereto, whether so expressed or not. If any Person shall acquire Registrable Securities from any
Holder, in any manner, whether by operation of law or otherwise, such Person shall promptly notify
the Company and such Registrable Securities acquired from such Holder shall be held subject to all
of the terms of this Agreement, and by taking and holding such Registrable Securities such Person
shall be entitled to receive the benefits of and be conclusively deemed to have agreed to be bound
by and to perform all of the terms and provisions of this Agreement. Any such successor or assign
shall agree in writing to acquire and hold the Registrable Securities acquired from such Holder
subject to all of the terms hereof. If any Holder shall acquire additional Registrable Securities,
such Registrable Securities shall be subject to all of the terms, and entitled to all the benefits,
of this Agreement.



22









 





               (b) This Agreement (with the documents referred to herein or delivered pursuant hereto)
embodies the entire agreement and understanding between the parties hereto and supersedes all prior
agreements.



               (c) THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE
STATE OF NEW YORK (WITHOUT GIVING EFFECT TO CONFLICT OF LAWS PRINCIPLES THEREOF).



               (d) With respect to any suit, action or proceeding (“Proceeding”) arising out of or
relating to this Agreement each of the parties hereto hereby irrevocably (i) submits to the
exclusive jurisdiction of the United States District Court for the Southern District of New York,
the United States District Court for the District of Delaware, or any state court located in the
State of Delaware, County of Newcastle (the “Selected Courts”) and waives any objection to
venue being laid in the Selected Courts whether based on the grounds of forum non conveniens or
otherwise and hereby agrees not to commence any such Proceeding other than before one of the
Selected Courts; provided, however, that a party may commence any Proceeding in a court other than
a Selected Court solely for the purpose of enforcing an order or judgment issued by one of the
Selected Courts and (ii) consents to service of process in any Proceeding by the mailing of copies
thereof by registered or certified mail, postage prepaid, or by recognized international express
carrier or delivery service, to the Company or the Stockholders at their respective addresses
referred to in Section 4.5 hereof; provided, however, that nothing herein shall affect the right of
any party hereto to serve process in any other manner permitted by law.



               (e) WITH RESPECT TO ANY PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT EACH OF THE
PARTIES HERETO HEREBY IRREVOCABLY, TO THE EXTENT NOT PROHIBITED BY APPLICABLE LAW THAT CANNOT BE
WAIVED, WAIVE, AND COVENANT THAT THEY WILL NOT ASSERT (WHETHER AS PLAINTIFF, DEFENDANT OR
OTHERWISE) ANY RIGHT TO TRIAL BY JURY IN ANY ACTION ARISING IN WHOLE OR IN PART UNDER OR IN
CONNECTION WITH THIS AGREEMENT OR ANY OF THE CONTEMPLATED TRANSACTIONS, WHETHER NOW EXISTING OR
HEREAFTER ARISING, AND WHETHER SOUNDING IN CONTRACT, TORT OR OTHERWISE, AND AGREE THAT ANY OF THEM
MAY FILE A COPY OF THIS PARAGRAPH WITH ANY COURT AS WRITTEN EVIDENCE OF THE KNOWING, VOLUNTARY AND
BARGAINED-FOR AGREEMENT AMONG THE PARTIES IRREVOCABLY TO WAIVE ITS RIGHT TO TRIAL BY JURY IN ANY
PROCEEDING WHATSOEVER BETWEEN THEM RELATING TO THIS AGREEMENT OR ANY OF THE CONTEMPLATED
TRANSACTIONS WILL INSTEAD BE TRIED IN A COURT OF COMPETENT JURISDICTION BY A JUDGE SITTING WITHOUT
A JURY.



               (f) The headings in this Agreement are for convenience of reference only and shall not limit
or otherwise affect the meaning hereof. All section references are to this Agreement unless
otherwise expressly provided.



23









 





               (g) This Agreement may be executed in any number of counterparts, each of which shall be an
original, but all of which together shall constitute one instrument.



               (h) Any term or provision of this Agreement which is invalid or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such invalidity or
unenforceability without rendering invalid or unenforceable the remaining terms and provisions of
this Agreement or affecting the validity or enforceability of any of the terms or provisions of
this Agreement in any other jurisdiction.



               (i) The parties hereto agree that irreparable damage would occur in the event that any of the
provisions of this Agreement were not performed in accordance with its specific terms or was
otherwise breached. It is accordingly agreed that the parties shall be entitled to an injunction
or injunctions and other equitable remedies to prevent breaches of this Agreement and to enforce
specifically the terms and provisions hereof in any of the Selected Courts, this being in addition
to any other remedy to which they are entitled at law or in equity. Any requirements for the
securing or posting of any bond with respect to such remedy are hereby waived by each of the
parties hereto. Each party further agrees that, in the event of any action for an injunction or
other equitable remedy in respect of such breach or enforcement of specific performance, it will
not assert the defense that a remedy at law would be adequate.



               (j) Each party hereto shall do and perform or cause to be done and performed all such further
acts and things and shall execute and deliver all such other agreements, certificates, instruments,
and documents as any other party hereto reasonably may request in order to carry out the intent and
accomplish the purposes of this Agreement and the consummation of the transactions contemplated
hereby.



          4.7. No Inconsistent Agreements. The rights granted to the Holders of Registrable
Securities hereunder do not in any way conflict with and are not inconsistent with any other
agreements to which the Company is a party or by which it is bound. Without the prior written
consent of Holders of a majority of the then outstanding Registrable Securities, the Company will
not, on or after the date of this Agreement, enter into any agreement with respect to its
securities which is inconsistent with the rights granted in this Agreement or otherwise conflicts
with the provisions hereof or provides terms and conditions which are more favorable to, or less
restrictive on, the other party thereto than the terms and conditions contained in this Agreement
are (insofar as they are applicable) to the Holders, other than any lock-up agreement with the
underwriters in connection with any registered offering effected hereunder, pursuant to which the
Company shall agree not to register for sale, and the Company shall agree not to sell or otherwise
dispose of, Common Stock or any securities convertible into or exercisable or exchangeable for
Common Stock, for a specified period following the registered offering. The Company further agrees
that if any other registration rights agreement entered into after the date of this Agreement with
respect to any of its securities contains terms which are more favorable to, or less restrictive
on, the other party thereto than the terms and conditions contained in this Agreement are (insofar
as they are applicable) to the Holders, then the terms and conditions of this Agreement shall
immediately be deemed to have been amended without further action by the Company or any of the
Holders of Registrable Securities so that the Holders shall each be entitled to the benefit of any
such more favorable or less restrictive terms or conditions.




24









 





     IN WITNESS WHEREOF, the parties hereto have duly executed this agreement as of the date first
above written.



	 	 	 	 
	FIRST SOLAR, INC.

 	 
	By:  	 	 
	 	Name:  	 	 
	 	Title:  	 	 
	 



	 	 	 	 
	JWMA PARTNERS, LLC

 	 
	By:  	 	 
	 	Name:  	 	 
	 	Title:  	 	 
	 



	 	 	 	 
	ESTATE OF JOHN T. WALTON

 	 
	By:  	 	 
	 	Name:  	 	 
	 	Title:  	 	 
	 



	 	 	 	 
	JCL HOLDINGS, LLC

 	 
	By:  	 	 
	 	Name:  	 	 
	 	Title:  	 	 
	 



	 	 	 	 
	MICHAEL J. AHEARN

 	 
	By:  	 	 
	 	Name:  	 	 
	 	Title: