REGISTRATION RIGHTS AGREEMENT
by and between
CALLOWAY-BRIGGS RENEWABLES INC.
a Delaware corporation
and
PINNACLE VISTA CAPITAL PARTNERS III, LP
a Delaware limited partnership
Dated as of [●], 2022
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REGISTRATION RIGHTS AGREEMENT
Dated as of [●], 2022
This REGISTRATION RIGHTS AGREEMENT (this "Agreement") is entered into as of the date first written above, by and between Calloway-Briggs Renewables Inc., a Delaware corporation (the "Company"), with principal offices located at 4200 Ridgeline Parkway, Suite 1100, Austin, TX 78746, and Pinnacle Vista Capital Partners III, LP, a Delaware limited partnership ("Pinnacle Vista" or the "Holder"), with principal offices located at 900 Park Avenue, 38th Floor, New York, NY 10021, acting through its general partner, Pinnacle Vista Capital Management LLC, a Delaware limited liability company.
RECITALS
WHEREAS, the Company is consummating an initial public offering of approximately $600,000,000 of its common stock, par value $0.01 per share (the "Common Stock"), pursuant to that certain Underwriting Agreement dated as of [●], 2022 (the "Underwriting Agreement"), among the Company, Pinnacle Vista (as a selling stockholder), and the several underwriters named therein, with Hargrove Keating & Co. acting as representative of the underwriters (the "IPO");
WHEREAS, prior to the IPO, Pinnacle Vista holds approximately 62% of the fully diluted Common Stock of the Company, and following the IPO (assuming the base offering without exercise of the underwriters' option to purchase additional shares), Pinnacle Vista will continue to hold a significant number of shares of Common Stock, representing a substantial ownership position in the Company;
WHEREAS, in connection with the IPO, Pinnacle Vista is selling 6,818,182 shares of Common Stock (representing approximately $150,000,000 at an assumed initial public offering price of $22.00 per share) as a selling stockholder;
WHEREAS, as a condition to and in connection with the consummation of the IPO, the Company and Pinnacle Vista desire to enter into this Agreement to provide Pinnacle Vista with certain registration rights with respect to the Registrable Securities (as defined herein), in order to facilitate Pinnacle Vista's ability to dispose of its shares of Common Stock in an orderly manner following the IPO and the expiration of applicable lock-up restrictions;
WHEREAS, this Agreement supersedes and replaces in their entirety any prior registration rights or similar provisions contained in the existing stockholders' agreement, the Amended and Restated Stockholders' Agreement, or any other agreements among the parties relating to registration rights with respect to the Common Stock; and
WHEREAS, the Company's Common Stock is being listed for trading on the New York Stock Exchange under the ticker symbol "CBRI" in connection with the IPO.
NOW, THEREFORE, in consideration of the mutual covenants, agreements, representations, and warranties contained herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:
ARTICLE I — DEFINITIONS
Section 1.1 — Definitions
As used in this Agreement, the following terms shall have the meanings set forth below:
"Affiliate" means, with respect to any Person, any other Person that directly or indirectly controls, is controlled by, or is under common control with such Person. For purposes of this definition, "control" (including, with correlative meanings, the terms "controlled by" and "under common control with") means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities, by contract, or otherwise. For the avoidance of doubt, Pinnacle Vista Capital Management LLC, in its capacity as the general partner of Pinnacle Vista Capital Partners III, LP, shall be deemed an Affiliate of Pinnacle Vista, and any investment fund or parallel fund managed or advised by Pinnacle Vista Capital Management LLC or any of its Affiliates shall be deemed an Affiliate of Pinnacle Vista.
"Agreement" means this Registration Rights Agreement, as it may be amended, modified, supplemented, or restated from time to time in accordance with its terms.
"Board" means the Board of Directors of the Company as constituted from time to time.
"Business Day" means any day other than a Saturday, a Sunday, or a day on which banking institutions in New York, New York or Austin, Texas are authorized or required by law, regulation, or executive order to close.
"Commission" or "SEC" means the United States Securities and Exchange Commission or any successor governmental agency or authority performing the functions currently performed by the United States Securities and Exchange Commission.
"Common Stock" means the common stock, par value $0.01 per share, of the Company, and any securities into which such shares of common stock may be reclassified, exchanged, or converted.
"Company" has the meaning set forth in the preamble to this Agreement and includes any successor entity thereto.
"Demand Notice" has the meaning set forth in Section 2.1.
"Demand Registration" has the meaning set forth in Section 2.1.
"Demand Registration Statement" means a Registration Statement filed by the Company pursuant to a Demand Registration under Section 2.1.
"Exchange Act" means the Securities Exchange Act of 1934, as amended, and the rules and regulations of the Commission promulgated thereunder, as the same may be in effect from time to time.
"Form S-1" means a registration statement on Form S-1 under the Securities Act, or any successor or substantially similar registration form then available under the Securities Act.
"Form S-3" means a registration statement on Form S-3 under the Securities Act, or any successor or substantially similar registration form then available under the Securities Act, permitting the incorporation of substantial information by reference to other documents filed by the Company with the Commission.
"Holder" means Pinnacle Vista Capital Partners III, LP, and any Permitted Transferee that becomes a party to this Agreement in accordance with Section 6.2 hereof; provided that any such Person shall cease to be a "Holder" for purposes of this Agreement at such time as such Person ceases to hold any Registrable Securities.
"IPO" means the initial public offering of Common Stock by the Company and the selling stockholders, as applicable, pursuant to the Registration Statement on Form S-1 filed with the Commission (SEC CIK 0001948372) and the Underwriting Agreement.
"IPO Closing Date" means the date of the closing of the IPO, being the date on which the shares of Common Stock sold in the IPO are delivered to the purchasers thereof against payment of the purchase price therefor.
"Lock-Up Period" means the period of one hundred eighty (180) days following the date of the final prospectus relating to the IPO, during which the Holder's rights under this Agreement shall be subject to the restrictions set forth in the Lock-Up Agreement executed by the Holder in connection with the IPO and the applicable provisions of the Underwriting Agreement.
"Managing Underwriter" means, with respect to any Underwritten Offering, the lead book-running managing underwriter or, if there are co-lead book-running managing underwriters, the lead book-running managing underwriter designated as such.
"Permitted Transferee" means, with respect to the Holder: (i) any Affiliate of the Holder; (ii) any limited partner, general partner, member, or manager of the Holder or the Holder's general partner, Pinnacle Vista Capital Management LLC; (iii) any successor entity of the Holder by merger, consolidation, reorganization, or otherwise; or (iv) any transferee (other than a Person described in Section 6.3) that acquires at least five percent (5%) of the then-outstanding shares of Common Stock from the Holder or another Permitted Transferee; in each case, who agrees in writing to be bound by the terms and conditions of this Agreement pursuant to a joinder agreement substantially in the form attached hereto as Exhibit A.
"Person" means any individual, corporation, limited liability company, partnership (whether general or limited), trust, joint venture, association, joint stock company, unincorporated organization, governmental authority, or other entity of any kind.
"Piggyback Notice" has the meaning set forth in Section 3.1.
"Piggyback Registration" has the meaning set forth in Section 3.1.
"Registrable Securities" means (i) all shares of Common Stock held by the Holder and any Permitted Transferee as of the date hereof and at any time hereafter, (ii) any shares of Common Stock acquired by the Holder or any Permitted Transferee after the date hereof, whether by purchase, conversion, exercise, exchange, or otherwise, and (iii) any securities issued or issuable directly or indirectly with respect to, in exchange for, or in substitution of the securities referred to in clauses (i) and (ii) above by way of stock dividend, stock split, reverse stock split, combination, recapitalization, reclassification, merger, consolidation, spin-off, reorganization, or other similar event; provided, however, that such securities shall cease to be Registrable Securities upon the earliest to occur of (a) the sale, transfer, or disposition thereof pursuant to an effective Registration Statement under the Securities Act, (b) the sale, transfer, or disposition thereof in a transaction exempt from the registration requirements of the Securities Act pursuant to Rule 144 (or any successor provision thereto) under the Securities Act, provided that the transferee does not receive registration rights hereunder, (c) such securities ceasing to be outstanding (whether by repurchase, redemption, cancellation, or otherwise), or (d) such securities becoming eligible for sale under Rule 144 without volume or manner-of-sale limitations and without the requirement for the Company to be in compliance with the current public information requirements of Rule 144(c)(1) (or any successor provision).
"Registration Expenses" has the meaning set forth in Section 5.1.
"Registration Statement" means any registration statement of the Company filed or to be filed with the Commission under the Securities Act, including all exhibits, financial statements, and schedules thereto, and all documents incorporated or deemed to be incorporated therein by reference, as well as any prospectus or prospectus supplement forming a part thereof or included therein, and all amendments and supplements to any of the foregoing.
"Rule 144" means Rule 144 promulgated under the Securities Act (or any successor or substantially similar provision then in force).
"Securities Act" means the Securities Act of 1933, as amended, and the rules and regulations of the Commission promulgated thereunder, as the same may be in effect from time to time.
"Selling Expenses" has the meaning set forth in Section 5.1.
"Shelf Registration Statement" has the meaning set forth in Section 4.1.
"Shelf Takedown" has the meaning set forth in Section 4.2.
"Underwritten Offering" means an offering of securities in which securities of the Company are sold to one or more underwriters on a firm-commitment basis for reoffering and resale to the public, including any such offering that is a "bought deal" or a block trade.
"Underwritten Shelf Takedown" has the meaning set forth in Section 4.2.
"Underwriting Agreement" means the underwriting agreement entered into in connection with the IPO among the Company, Pinnacle Vista (as a selling stockholder), and the several underwriters named therein, with Hargrove Keating & Co. acting as representative of the underwriters, as the same may be supplemented or amended from time to time.
Section 1.2 — Interpretation
Unless the context otherwise requires, in this Agreement: (a) the term "including" (and with correlative meaning, "include" and "includes") means including without limitation; (b) the headings of Articles, Sections, and subsections are inserted for convenience of reference only and shall not affect the interpretation of this Agreement; (c) words importing the singular include the plural and vice versa; (d) references to any statute, rule, or regulation include all amendments thereto and any successor statutes, rules, or regulations; (e) references to any Person include such Person's successors and permitted assigns; (f) the terms "herein," "hereof," "hereby," "hereunder," and words of similar import refer to this Agreement as a whole and not to any particular Article, Section, subsection, or provision hereof; (g) references to "$" or "dollars" mean United States dollars; (h) the word "or" is not exclusive; and (i) references to "days" mean calendar days unless otherwise specified as "Business Days." The parties have participated jointly in the negotiation and drafting of this Agreement, and in the event an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as if drafted jointly by the parties, and no presumption or burden of proof shall arise favoring or disfavoring any party by virtue of the authorship of any of the provisions of this Agreement.
ARTICLE II — DEMAND REGISTRATION RIGHTS
Section 2.1 — Demand Registration
At any time and from time to time following the expiration of the Lock-Up Period (subject to Section 2.8), the Holder (together with any Permitted Transferees then holding Registrable Securities) may make a written request (a "Demand Notice") to the Company that the Company file a Registration Statement under the Securities Act covering the resale of all or any portion of the Registrable Securities then held by the Holder (and any such Permitted Transferees) (a "Demand Registration"). Each Demand Notice shall specify: (i) the aggregate number of Registrable Securities proposed to be registered, (ii) the intended method or methods of disposition thereof (including whether the Holder requests that the registration be effected as an Underwritten Offering), and (iii) such other information as may be reasonably necessary for the Company to prepare the applicable Registration Statement.
Upon receipt of a Demand Notice complying with the requirements of this Section 2.1, the Company shall use its reasonable best efforts to file such Registration Statement (a "Demand Registration Statement") with the Commission as promptly as practicable, but in no event later than sixty (60) days after the date of the Company's receipt of such Demand Notice, and shall use its reasonable best efforts to cause such Demand Registration Statement to become effective under the Securities Act as promptly as practicable following such filing. The Company shall keep such Demand Registration Statement continuously effective and usable for the resale of the Registrable Securities covered thereby for a period of at least one hundred twenty (120) days after the effective date thereof (or such shorter period as shall end on the earlier of (x) the date on which all Registrable Securities covered by such Demand Registration Statement have been sold or withdrawn and (y) the date on which the Holder notifies the Company in writing that it has completed the distribution of Registrable Securities contemplated by such Demand Registration Statement).
Section 2.2 — Number of Demand Registrations
The Holder shall be entitled to an unlimited number of Demand Registrations; provided, however, that the Company shall not be obligated to effect more than three (3) Demand Registrations in any twelve (12)-month period (measured from the effective date of the first Demand Registration Statement in such period). A request for a Demand Registration shall not be counted as a Demand Registration for purposes of the foregoing limitation if: (a) the related Demand Registration Statement has not been declared effective by the Commission, other than as a result of the Holder's withdrawal of the Demand Notice or the Holder's failure to provide information reasonably required by the Company in connection therewith; (b) the Demand Registration is withdrawn by the Holder prior to the effectiveness of the related Demand Registration Statement in accordance with and subject to Section 2.5; or (c) fewer than seventy-five percent (75%) of the Registrable Securities requested by the Holder to be included in such Demand Registration are actually included therein due to a cutback imposed pursuant to Section 2.4.
Section 2.3 — Minimum Threshold
The Company shall not be obligated to effect any Demand Registration unless the aggregate gross proceeds from the Registrable Securities proposed to be registered in such Demand Registration are reasonably expected to be at least Fifty Million Dollars ($50,000,000), based on the then-current market price of the Common Stock as reported on the New York Stock Exchange (or such other national securities exchange on which the Common Stock is then listed) on the Business Day immediately preceding the date of the applicable Demand Notice. For the avoidance of doubt, if the Holder delivers a Demand Notice and the expected aggregate gross proceeds do not meet the foregoing threshold, the Company shall promptly notify the Holder in writing, and the Holder may withdraw such Demand Notice without such request being counted as a Demand Registration.
Section 2.4 — Priority and Cut-Back (Demand Registration)
If a Demand Registration involves an Underwritten Offering and the Managing Underwriter for such Underwritten Offering advises the Company and the Holder in writing that, in its reasonable opinion, the number of shares of Common Stock proposed to be included in such Underwritten Offering exceeds the number of shares that can be sold in such offering without materially and adversely affecting the price, timing, or distribution of such offering or the market for the Common Stock (such maximum number of shares, the "Maximum Offering Size"), then the Company shall include in such Underwritten Offering the number of shares of Common Stock that does not exceed the Maximum Offering Size, and such shares shall be allocated for inclusion in the following order of priority:
First, all Registrable Securities requested to be included in such Demand Registration by the Holder (and any Permitted Transferees) that initiated such Demand Registration, allocated pro rata among such requesting Holders based on the respective number of Registrable Securities each such Holder has requested to be included, until all such Registrable Securities have been included or the Maximum Offering Size has been reached;
Second, to the extent that the Maximum Offering Size has not been reached, shares of Common Stock that the Company proposes to sell for its own account; and
Third, to the extent that the Maximum Offering Size has not been reached after allocation pursuant to the foregoing clauses, shares of Common Stock requested to be included by any other holders of the Company's securities who have been granted registration rights by the Company, allocated pro rata among such holders based on the respective number of shares each such holder has requested to be included.
Section 2.5 — Withdrawal of Demand Registration
The Holder may withdraw a Demand Registration at any time prior to the effectiveness of the applicable Demand Registration Statement by providing written notice of withdrawal to the Company. If the Holder withdraws a Demand Registration in accordance with this Section 2.5, such withdrawn Demand Registration shall not be counted as a Demand Registration for purposes of the limitations set forth in Section 2.2, unless the Holder has previously elected in writing that such registration shall count against the Demand Registration limit. Notwithstanding the foregoing, the Holder shall reimburse the Company for all reasonable and documented Registration Expenses actually incurred by the Company in connection with such withdrawn Demand Registration, unless the withdrawal is the result of: (i) a material adverse change in the business, financial condition, assets, properties, or results of operations of the Company and its subsidiaries, taken as a whole, that was not known to the Holder at the time the Demand Notice was delivered; or (ii) the discovery by the Holder of a material misstatement or omission in the applicable Demand Registration Statement or prospectus that is attributable to information provided by or on behalf of the Company. In the event that the Holder is obligated to reimburse Registration Expenses pursuant to this Section 2.5, the Company shall provide the Holder with an itemized statement of such expenses within thirty (30) days following the withdrawal.
Section 2.6 — Postponement and Suspension (Blackout Periods)
(a) Notwithstanding any other provision of this Article II, the Company may postpone the filing of a Demand Registration Statement or, if a Demand Registration Statement has already been filed and become effective, suspend the use of such effective Demand Registration Statement and require the Holder to suspend any disposition of Registrable Securities pursuant thereto for a period not to exceed sixty (60) consecutive days (any such period, a "Blackout Period") if the Board (or a duly authorized committee thereof) determines in good faith, after consultation with outside legal counsel (Calderwood & Harkness LLP or successor counsel), that:
(i) such filing, offering, or continued use of the Demand Registration Statement would require the disclosure of material non-public information concerning the Company or any of its subsidiaries that has not yet been publicly disclosed and whose premature disclosure would, in the good-faith judgment of the Board, materially and adversely affect the Company or its stockholders; or
(ii) such filing, offering, or continued use of the Demand Registration Statement would materially interfere with a significant acquisition, disposition, financing, reorganization, recapitalization, or other similar transaction then being pursued by or involving the Company or any of its subsidiaries, the consummation of which, in the good-faith judgment of the Board, would be materially adversely affected by such filing, offering, or continued use.
(b) The Company shall not invoke its right to impose Blackout Periods under this Section 2.6 for Blackout Periods aggregating in excess of one hundred twenty (120) days in any twelve (12)-month period, and no single Blackout Period shall exceed sixty (60) consecutive days.
(c) The Company shall promptly notify the Holder in writing of the commencement and termination of each Blackout Period. Any such notice of commencement shall state in general terms the basis for the Blackout Period (without disclosing any underlying material non-public information), the approximate expected duration of such Blackout Period, and confirmation that the Board (or a duly authorized committee thereof) has made the good-faith determination required by Section 2.6(a). The Company shall use its reasonable best efforts to terminate each Blackout Period as promptly as practicable. During any Blackout Period, the Holder shall maintain the confidentiality of the existence and duration of such Blackout Period and shall not trade in any securities of the Company.
(d) If a Blackout Period imposed pursuant to this Section 2.6 continues for more than sixty (60) consecutive days, the Holder shall be entitled, upon the termination of such Blackout Period, to an additional Demand Registration that shall not count against the limit set forth in Section 2.2, and the period of effectiveness of the related Demand Registration Statement shall be extended by the number of days of such Blackout Period.
Section 2.7 — Underwritten Demand Offerings
(a) The Holder may request, in its Demand Notice or by subsequent written notice to the Company, that any Demand Registration be effected in the form of an Underwritten Offering. If the Holder requests an Underwritten Offering, the Holder shall have the right to select the Managing Underwriter and any co-managing underwriters for such Underwritten Offering, subject to the Company's prior written approval, which approval shall not be unreasonably withheld, conditioned, or delayed. The Company and the Holder shall use commercially reasonable efforts to agree on the selection of the Managing Underwriter within ten (10) Business Days following the Company's receipt of the Holder's proposed selection.
(b) In connection with any Underwritten Offering pursuant to a Demand Registration, the Company and the Holder shall enter into an underwriting agreement in customary form and substance with the Managing Underwriter selected in accordance with Section 2.7(a), containing customary representations, warranties, covenants, indemnification provisions, and contribution provisions (consistent with Article VII hereof). The Company shall cause its executive officers and directors, and the Holder shall, cooperate fully with the Managing Underwriter and the other parties in connection with the preparation and execution of such underwriting agreement.
(c) In connection with any Underwritten Offering pursuant to a Demand Registration, the Company and its executive officers and directors shall, if so requested by the Managing Underwriter, execute and deliver customary lock-up agreements restricting the sale, transfer, or other disposition of shares of Common Stock for a period not to exceed ninety (90) days following the pricing of such Underwritten Offering, in form and substance reasonably acceptable to the Managing Underwriter and the Holder.
Section 2.8 — Restrictions During Lock-Up Period
Notwithstanding anything to the contrary in this Article II, no Demand Registration may be requested by the Holder or effected by the Company during the one hundred eighty (180)-day Lock-Up Period following the date of the final prospectus relating to the IPO; provided, however, that the Holder may deliver a Demand Notice to the Company during the last thirty (30) days of the Lock-Up Period for a Demand Registration to be filed by the Company promptly after the expiration of the Lock-Up Period. The Company shall use its reasonable best efforts to prepare such Demand Registration Statement during such thirty (30)-day period so that it is ready for filing on or promptly after the first Business Day following the expiration of the Lock-Up Period. Any such Demand Registration shall be subject in all respects to the other provisions of this Article II.
ARTICLE III — PIGGYBACK REGISTRATION RIGHTS
Section 3.1 — Piggyback Registration
If, at any time following the expiration of the Lock-Up Period, the Company proposes to file a Registration Statement under the Securities Act with the Commission for a public offering of Common Stock, whether for the Company's own account or for the account of any other securityholder of the Company (other than (i) a registration statement on Form S-4 or Form S-8 (or any successor forms thereto), (ii) a registration statement filed solely in connection with an employee stock purchase plan, equity incentive plan, or other employee benefit plan, (iii) a registration statement filed solely in connection with a business combination, exchange offer, or similar transaction, or (iv) the Registration Statement relating to the IPO), then the Company shall give written notice (a "Piggyback Notice") to the Holder of such proposed filing at least fifteen (15) Business Days prior to the anticipated filing date of such Registration Statement. The Piggyback Notice shall describe in reasonable detail the proposed registration, including the number of shares of Common Stock proposed to be registered, the anticipated filing date, the proposed method of distribution, and the identity of the Managing Underwriter (if known).
Upon receipt of a Piggyback Notice, the Holder shall have the right to include all or any portion of its Registrable Securities in such registration (a "Piggyback Registration") by delivering a written request to the Company within ten (10) Business Days after receipt of the Piggyback Notice. Such written request shall specify the number of Registrable Securities that the Holder desires to include in such Piggyback Registration. The Company shall use its reasonable best efforts to cause such Registrable Securities to be included in such Registration Statement and to be covered by any related underwriting agreement.
Section 3.2 — Priority and Cut-Back (Piggyback Registration)
If a Piggyback Registration involves an Underwritten Offering and the Managing Underwriter for such Underwritten Offering advises the Company and the Holder in writing that, in its reasonable opinion, the number of shares of Common Stock proposed to be included in such Underwritten Offering exceeds the Maximum Offering Size, then the Company shall include in such Underwritten Offering the number of shares of Common Stock that does not exceed the Maximum Offering Size, and such shares shall be allocated for inclusion as follows:
(a) Company-Initiated Registration. If the registration is initiated by the Company for its own account:
First, all shares of Common Stock that the Company proposes to sell for its own account;
Second, all Registrable Securities of the Holder requested to be included in such registration, allocated pro rata with any other holders of the Company's securities who have been granted piggyback registration rights and who have requested inclusion, based on the respective number of shares each such holder has requested to be included, until all such shares have been included or the Maximum Offering Size has been reached; and
Third, to the extent the Maximum Offering Size has not been reached, all other shares of Common Stock requested to be included by any other Persons with contractual registration rights, allocated pro rata among such Persons based on the respective number of shares each such Person has requested to be included.
(b) Stockholder-Initiated Registration. If the registration is initiated by one or more securityholders of the Company (other than the Holder) pursuant to registration rights granted by the Company:
First, all shares of Common Stock requested to be included by the securityholder(s) who initiated such registration;
Second, all Registrable Securities of the Holder requested to be included in such registration, allocated pro rata with any other holders of the Company's securities who have been granted piggyback registration rights and who have requested inclusion, based on the respective number of shares each such holder has requested to be included, until all such shares have been included or the Maximum Offering Size has been reached; and
Third, to the extent the Maximum Offering Size has not been reached, all shares of Common Stock that the Company proposes to sell for its own account.
Section 3.3 — Withdrawal from Piggyback Registration
(a) The Holder may withdraw all or any portion of its Registrable Securities from a Piggyback Registration at any time prior to the effectiveness of the applicable Registration Statement by providing written notice to the Company. Such withdrawal shall not affect the Company's obligation to complete the registration for its own account or the account of other securityholders.
(b) The Company shall have the right to withdraw or abandon any proposed registration that gave rise to Piggyback Registration rights at any time and for any reason, without incurring any liability or obligation to the Holder on account of such withdrawal or abandonment, except that the Company shall bear all Registration Expenses actually incurred in connection with such withdrawn or abandoned registration.
(c) For the avoidance of doubt, no Piggyback Registration shall be counted as a Demand Registration for purposes of the limitations set forth in Section 2.2, regardless of whether the Holder's Registrable Securities are included therein or subsequently withdrawn therefrom.
Section 3.4 — Restrictions During Lock-Up Period
Notwithstanding any other provision of this Article III, no Piggyback Registration rights may be exercised by the Holder during the one hundred eighty (180)-day Lock-Up Period following the date of the final prospectus relating to the IPO. During the Lock-Up Period, the Company shall have no obligation to provide Piggyback Notices to the Holder, and the Holder shall have no right to request inclusion of Registrable Securities in any registration undertaken by the Company during such period.
ARTICLE IV — SHELF REGISTRATION
Section 4.1 — Shelf Registration Statement
(a) At any time after the Company becomes eligible to use Form S-3 (or any successor short-form registration statement) for secondary offerings, the Holder may request in writing that the Company file a registration statement on Form S-3 for a shelf registration providing for the resale of all Registrable Securities on a delayed or continuous basis pursuant to Rule 415 under the Securities Act (a "Shelf Registration Statement"). The Company shall use its reasonable best efforts to file such Shelf Registration Statement with the Commission as promptly as practicable, but in no event later than forty-five (45) days after the Company's receipt of such request, and shall use its reasonable best efforts to cause such Shelf Registration Statement to become effective under the Securities Act as promptly as practicable following such filing.
(b) The Company shall use its reasonable best efforts to keep such Shelf Registration Statement continuously effective and usable for the resale of the Registrable Securities covered thereby until the earlier of: (i) the date on which all Registrable Securities covered by such Shelf Registration Statement have been sold pursuant thereto or otherwise cease to be Registrable Securities, and (ii) the date on which there are no longer any Registrable Securities outstanding. The Company shall file any amendments and supplements to such Shelf Registration Statement, and any additional Registration Statements, as may be necessary to keep the Shelf Registration Statement continuously effective and current, including the filing of new Shelf Registration Statements prior to the expiration of any then-effective Shelf Registration Statement.
(c) A request for a Shelf Registration Statement on Form S-3 (or successor form) shall not count against the Demand Registration limits set forth in Section 2.2. The Holder shall also be entitled to request that the Company file a Shelf Registration Statement on Form S-1 if Form S-3 is not then available to the Company for secondary offerings; provided, however, that any such request for a Shelf Registration Statement on Form S-1 shall count as one Demand Registration under Article II and shall be subject to the limitations set forth therein.
Section 4.2 — Shelf Takedowns
(a) At any time while a Shelf Registration Statement is effective, the Holder may initiate an offering of all or any portion of the Registrable Securities registered under such Shelf Registration Statement (a "Shelf Takedown") by providing written notice to the Company specifying the number of Registrable Securities to be offered and the intended method of distribution (including whether the Shelf Takedown is to be an Underwritten Offering).
(b) If the Holder requests that a Shelf Takedown be conducted as an Underwritten Offering (an "Underwritten Shelf Takedown"), the Holder shall have the right to select the Managing Underwriter and any co-managing underwriters for such Underwritten Shelf Takedown, subject to the Company's prior written approval, which approval shall not be unreasonably withheld, conditioned, or delayed. In connection with an Underwritten Shelf Takedown, the Company and the Holder shall enter into an underwriting agreement in customary form and substance with the Managing Underwriter, and the Company shall provide all cooperation and deliverables contemplated by Section 5.2 as if such Underwritten Shelf Takedown were an Underwritten Offering pursuant to a Demand Registration.
(c) The Company shall not be obligated to effect any Underwritten Shelf Takedown unless the aggregate gross proceeds from the Registrable Securities proposed to be sold in such Underwritten Shelf Takedown are reasonably expected to be at least Fifty Million Dollars ($50,000,000), based on the then-current market price of the Common Stock on the Business Day immediately preceding the date of the Holder's notice.
(d) The Company shall not be obligated to effect more than three (3) Underwritten Shelf Takedowns in any twelve (12)-month period (measured from the date of the first Underwritten Shelf Takedown in such period). For the avoidance of doubt, Shelf Takedowns that are not Underwritten Offerings (including "at-the-market" offerings, block trades not involving an underwriting, or other non-underwritten dispositions) shall not be subject to the foregoing numerical limitation.
Section 4.3 — Cut-Back (Shelf Takedowns)
If the Managing Underwriter for an Underwritten Shelf Takedown advises the Company and the Holder in writing that, in its reasonable opinion, the number of shares of Common Stock proposed to be included in such Underwritten Shelf Takedown exceeds the Maximum Offering Size, then the shares to be included in such Underwritten Shelf Takedown shall be allocated in the same order of priority as set forth in Section 2.4, mutatis mutandis.
Section 4.4 — Suspension of Shelf Registration Statement
(a) The Company may suspend the use of the Shelf Registration Statement and any prospectus forming a part thereof during any Blackout Period, subject to the same conditions, limitations, and notice requirements as are applicable to Blackout Periods under Section 2.6. Without limiting the foregoing, the Company shall not suspend the use of the Shelf Registration Statement for Blackout Periods aggregating in excess of one hundred twenty (120) days in any twelve (12)-month period, and no single suspension of the Shelf Registration Statement shall exceed sixty (60) consecutive days.
(b) Upon the termination of any Blackout Period during which the use of the Shelf Registration Statement was suspended, the Company shall promptly supplement or amend the Shelf Registration Statement and any related prospectus, as may be required, to ensure that such Shelf Registration Statement and prospectus do not contain any 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 case of the prospectus, in light of the circumstances under which they were made) not misleading, and shall take all other steps as may be necessary to maintain the effectiveness and usability of the Shelf Registration Statement.
ARTICLE V — REGISTRATION PROCEDURES AND EXPENSES
Section 5.1 — Registration Expenses vs. Selling Expenses
(a) "Registration Expenses" shall mean all fees, costs, and expenses incurred in connection with any Demand Registration, Piggyback Registration, Shelf Registration, or Shelf Takedown effected pursuant to this Agreement, including: (i) all SEC registration and filing fees; (ii) all New York Stock Exchange listing fees and expenses (or fees and expenses of such other national securities exchange on which the Common Stock is then listed); (iii) all Financial Industry Regulatory Authority ("FINRA") filing fees; (iv) fees and disbursements of the Company's outside legal counsel, including Calderwood & Harkness LLP or any successor counsel to the Company; (v) fees and disbursements of the Company's independent registered public accounting firm, Ashford & Pemberton LLP (or any successor auditor), including fees associated with comfort letters, consents, and any required review of Registration Statements and prospectuses; (vi) printing, duplicating, and EDGAR filing expenses, including fees charged by Ridgeway Financial Printing Corp. or any successor financial printer; (vii) fees and expenses of the Company's transfer agent and registrar, Continental Shareowner Services, Inc. (or any successor transfer agent and registrar); (viii) fees and expenses of any other agents, advisors, or service providers retained by the Company in connection with such registration; (ix) costs and expenses related to roadshows, investor presentations, and similar marketing activities undertaken in connection with Underwritten Offerings; and (x) all other costs and expenses incident to the Company's performance of its obligations under this Agreement in connection with the preparation, filing, and maintenance of Registration Statements, including internal costs allocable to such registrations.
(b) "Selling Expenses" shall mean: (i) all underwriting discounts, selling commissions, and stock transfer taxes applicable to the sale of Registrable Securities by the Holder; and (ii) the fees and disbursements of the Holder's counsel, including Whitfield Archer & Doss LLP or any successor counsel to the Holder, and any other advisors retained by the Holder in connection with such registration.
(c) The Company shall bear all Registration Expenses in connection with any Demand Registration, Piggyback Registration, Shelf Registration, or Shelf Takedown effected pursuant to this Agreement, regardless of whether such registration is declared effective or results in any sales of Registrable Securities. The Holder shall bear all Selling Expenses applicable to the sale of Registrable Securities by the Holder in any such registration or offering. Except as otherwise expressly provided herein, each party shall bear its own internal costs and expenses.
Section 5.2 — Company Obligations in Connection with Registration
In connection with each Demand Registration, Piggyback Registration, Shelf Registration, and Shelf Takedown effected pursuant to this Agreement, the Company shall:
(a) Prepare and file with the Commission the applicable Registration Statement, including all required exhibits, financial statements, and schedules, and use its reasonable best efforts to cause such Registration Statement to become effective under the Securities Act as promptly as practicable. The Company shall furnish to the Holder copies of the Registration Statement, each prospectus included therein or filed with the Commission, and each amendment or supplement thereto, in each case prior to the filing thereof with the Commission, and shall in good faith consider any comments made by the Holder or its counsel on any such documents within a reasonable period of time.
(b) Prepare and file with the Commission such amendments and post-effective amendments to the Registration Statement as may be necessary to keep such Registration Statement effective for the applicable period set forth herein, to comply with the provisions of the Securities Act with respect to the disposition of all Registrable Securities covered thereby, and to respond promptly to any comments received from the Commission staff on the Registration Statement or any amendment thereto.
(c) Furnish to the Holder and to any Managing Underwriter, without charge, such number of copies of the applicable prospectus (including each preliminary prospectus), any prospectus supplement, and any amendments and supplements thereto as the Holder and the Managing Underwriter may reasonably request in order to facilitate the public sale or other disposition of the Registrable Securities covered by such Registration Statement.
(d) Use its reasonable best efforts to register or qualify the Registrable Securities covered by such Registration Statement under such state securities or "blue sky" laws of such jurisdictions as the Holder or the Managing Underwriter may reasonably request, and take any and all other actions as may be reasonably necessary or advisable to enable the Holder to sell the Registrable Securities in such jurisdictions; provided, however, that the Company shall not be required to (i) qualify generally to do business or as a foreign corporation in any jurisdiction in which it is not then so qualified, (ii) subject itself to taxation in any jurisdiction in which it is not then so subject, or (iii) consent to general service of process in any jurisdiction in which it has not theretofore been so subject.
(e) Promptly notify the Holder and the Managing Underwriter, at any time when a prospectus is required to be delivered under the Securities Act, of (i) the issuance by the Commission of any stop order suspending the effectiveness of any Registration Statement or the initiation of any proceedings for that purpose, (ii) the receipt by the Company of any notification with respect to the suspension of the qualification or exemption from qualification of any Registrable Securities for sale in any jurisdiction or the initiation of any proceeding for such purpose, (iii) the occurrence of any event or the existence of any condition that requires the making of any changes in, or amendments or supplements to, the Registration Statement or any related prospectus so that, as then in effect, such Registration Statement does not contain any untrue statement of a material fact and such prospectus does not contain any 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 light of the circumstances under which they were made, not misleading, and (iv) the receipt by the Company of any request by the Commission for any amendment of or supplement to any Registration Statement or any prospectus, or for additional information.
(f) Use its reasonable best efforts to cause all Registrable Securities covered by such Registration Statement to be listed on the New York Stock Exchange (or such other national securities exchange on which the Common Stock is then listed), and to maintain such listing during the effectiveness of such Registration Statement.
(g) Enter into and perform its obligations under customary agreements (including an underwriting agreement in customary form and substance) and provide all customary closing deliverables as may be reasonably requested by the Managing Underwriter, including officer certificates executed by the Chief Executive Officer and the Chief Financial Officer of the Company, certificates of the Secretary or an Assistant Secretary of the Company, opinions and negative assurance letters of the Company's outside legal counsel, and comfort letters (including "bring-down" comfort letters) from Ashford & Pemberton LLP (or any successor independent registered public accounting firm of the Company).
(h) Use its reasonable best efforts to cause the Company's independent registered public accounting firm, Ashford & Pemberton LLP (or any successor auditor), to provide customary comfort letters and, at the closing of any Underwritten Offering, "bring-down" comfort letters, in each case in customary form and covering matters customarily covered by comfort letters in connection with offerings of equity securities of the type being registered.
(i) Cooperate with the Holder and the Managing Underwriter to facilitate the timely preparation and delivery of certificates (or book-entry transfers through the facilities of The Depository Trust Company ("DTC")) representing the Registrable Securities to be sold pursuant to such Registration Statement, which certificates or book-entry shares shall be free of all restrictive legends (other than any legends required under applicable securities laws), and enable such Registrable Securities to be in such denominations and registered in such names as the Managing Underwriter or the Holder may reasonably request at least two (2) Business Days prior to the closing of any sale of Registrable Securities.
(j) Make available senior management of the Company, including Garrett Calloway (Chairman and Chief Executive Officer), Marcus Yoon (Chief Financial Officer), and such other executive officers as may be reasonably requested, for participation in customary "roadshow" presentations, due diligence sessions, and investor meetings and presentations in connection with Underwritten Offerings, subject to reasonable advance scheduling and the reasonable availability of such officers; provided that such obligations shall not unreasonably disrupt the ordinary course of the Company's business.
(k) Maintain the Company's status as a reporting company under the Exchange Act and timely file all periodic reports, current reports, proxy statements, and other documents required to be filed under Sections 13 and 15(d) of the Exchange Act (and the rules and regulations promulgated thereunder) so long as the Company is subject to such reporting requirements, and take all action as may be required to enable the Holder to sell Registrable Securities under Rule 144 or any similar provision then in force.
(l) Use its reasonable best efforts to ensure that the Registrable Securities are eligible for settlement and clearance through DTC, including by maintaining the Company's relationship with Continental Shareowner Services, Inc. (or any successor transfer agent and registrar) and complying with all DTC eligibility requirements.
Section 5.3 — Holder Obligations
In connection with each registration effected pursuant to this Agreement, the Holder shall:
(a) Furnish to the Company in writing such information regarding the Holder (and any Permitted Transferees participating in such registration) and the proposed distribution of the Registrable Securities as shall be reasonably required by the Company, its legal counsel, or the Managing Underwriter in connection with the preparation, filing, and maintenance of the applicable Registration Statement and any related prospectus or prospectus supplement. The Holder acknowledges that such information may include, without limitation, the name of the Holder, the number of Registrable Securities beneficially owned by the Holder, the number of Registrable Securities being offered by the Holder, the Holder's relationship to the Company, and any other information required by the Securities Act or the rules and regulations of the Commission.
(b) Comply with all applicable provisions of the Securities Act and the Exchange Act, and the rules and regulations promulgated thereunder, including any prospectus delivery requirements applicable to the sale of Registrable Securities.
(c) Promptly suspend any disposition of Registrable Securities covered by any Registration Statement or prospectus upon receipt of written notice from the Company of the commencement of a Blackout Period under Section 2.6 or Section 4.4, and shall not resume any disposition of such Registrable Securities until the Company provides written notice of the termination of such Blackout Period.
(d) Promptly notify the Company in writing upon the disposition of all Registrable Securities covered by any Registration Statement.
ARTICLE VI — TRANSFERABILITY AND PERMITTED TRANSFEREES
Section 6.1 — Transferability of Registrable Securities
The Holder may transfer, sell, assign, pledge, or otherwise dispose of all or any portion of the Registrable Securities in accordance with applicable law, the terms of this Agreement, and any applicable lock-up restrictions, including the Lock-Up Agreement and the Underwriting Agreement. Nothing in this Section 6.1 shall be deemed to restrict or limit the Holder's right to transfer Registrable Securities in any manner permitted by applicable law, subject to the provisions of this Agreement.
Section 6.2 — Assignment of Registration Rights
The Holder may assign all or any portion of its rights under this Agreement to any Permitted Transferee, provided that:
(a) such Permitted Transferee acquires Registrable Securities from the Holder (or from another Permitted Transferee that has previously been assigned rights hereunder) in a transfer that is in compliance with applicable securities laws;
(b) the Company is given prior written notice of such assignment at least ten (10) Business Days prior to the effectiveness thereof, specifying the name and address of the Permitted Transferee, the number of Registrable Securities being transferred to such Permitted Transferee, and the basis upon which such transferee qualifies as a Permitted Transferee;
(c) the Permitted Transferee executes and delivers to the Company a joinder agreement substantially in the form attached hereto as Exhibit A (or in such other form as may be reasonably satisfactory to the Company), pursuant to which such Permitted Transferee agrees to be bound by all terms and conditions of this Agreement as if such Permitted Transferee were an original signatory hereto and the "Holder" hereunder; and
(d) such assignment does not violate any applicable federal or state securities laws or any other applicable law or regulation.
Upon the satisfaction of the conditions set forth in clauses (a) through (d) above, such Permitted Transferee shall be deemed to be a "Holder" for all purposes of this Agreement with respect to the Registrable Securities so transferred. Notwithstanding any assignment of rights hereunder, the assigning Holder shall remain liable for its obligations under this Agreement with respect to any Registrable Securities retained by such Holder.
Section 6.3 — No Assignment to Competitors
Notwithstanding anything to the contrary in Section 6.2, the Holder shall not assign any of its rights under this Agreement to any Person who is, or whose Affiliates are, a direct competitor of the Company in the utility-scale renewable-energy development and operating business, as reasonably determined by the Board in good faith. If a dispute arises as to whether a proposed assignee constitutes a "direct competitor" for purposes of this Section 6.3, the parties shall seek to resolve such dispute through good-faith discussions, and if such discussions are unsuccessful, the determination shall be made by a mutually agreed-upon nationally recognized investment banking firm. The costs of any such determination shall be borne equally by the Company and the Holder.
ARTICLE VII — INDEMNIFICATION AND CONTRIBUTION
Section 7.1 — Indemnification by the Company
The Company shall indemnify and hold harmless, to the fullest extent permitted by law, the Holder, each Permitted Transferee that sells Registrable Securities pursuant to a Registration Statement, and their respective directors, officers, partners, limited partners, members, managers, employees, agents, and representatives, and each Person who controls any of the foregoing within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (each, an "Indemnified Holder Party"), against any and all losses, claims, damages, liabilities, and expenses (including reasonable and documented attorneys' fees, costs of investigation, and costs of any litigation or proceeding, including any appeal) (collectively, "Losses") arising out of or based upon:
(a) any untrue statement or alleged untrue statement of a material fact contained in any Registration Statement (including any preliminary or final prospectus contained therein or forming a part thereof), any amendment or supplement thereto, or any document incorporated or deemed to be incorporated therein by reference, or any "free writing prospectus" (as defined in Rule 405 under the Securities Act) used in connection with any registration or offering hereunder; or
(b) any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein (in the case of any prospectus or any amendment or supplement thereto, in light of the circumstances under which they were made) not misleading.
provided, however, that the Company shall not be liable to any Indemnified Holder Party to the extent that any such Loss arises out of or is based upon an untrue statement or alleged untrue statement or omission or alleged omission that was made in reliance upon and in conformity with written information furnished to the Company by or on behalf of the Holder expressly for use in such Registration Statement, prospectus, amendment, supplement, or "free writing prospectus." The indemnification provided for under this Section 7.1 shall remain in full force and effect regardless of any investigation made by or on behalf of any Indemnified Holder Party, and shall survive the transfer of any Registrable Securities by the Holder.
Section 7.2 — Indemnification by the Holder
The Holder shall indemnify and hold harmless, to the fullest extent permitted by law, the Company and its directors, officers, employees, agents, and representatives, and each Person who controls the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (each, an "Indemnified Company Party"), against any and all Losses arising out of or based upon any untrue statement or alleged untrue statement of a material fact, or any omission or alleged omission to state a material fact required to be stated therein or necessary to make the statements therein (in the case of any prospectus or any amendment or supplement thereto, in light of the circumstances under which they were made) not misleading, in each case to the extent, but only to the extent, that such untrue statement or alleged untrue statement or omission or alleged omission was made in reliance upon and in conformity with written information furnished to the Company by or on behalf of the Holder expressly for use in any Registration Statement, prospectus, amendment, supplement, or "free writing prospectus."
Notwithstanding the foregoing, the aggregate liability of the Holder under this Section 7.2 with respect to any Registration Statement shall not exceed the net proceeds (after deduction of all underwriting discounts, selling commissions, and transfer taxes) actually received by the Holder from the sale of Registrable Securities pursuant to such Registration Statement giving rise to such indemnification obligation.
Section 7.3 — Indemnification Procedures
(a) Promptly after receipt by any Person entitled to indemnification under this Article VII (an "Indemnified Party") of notice of the commencement of any action, suit, claim, or proceeding (a "Claim") against such Indemnified Party in respect of which indemnification may be sought hereunder, such Indemnified Party shall give written notice thereof to the party from whom indemnification is sought (the "Indemnifying Party"); provided, however, that the failure of any Indemnified Party to give timely notice as provided herein shall not relieve the Indemnifying Party of any of its obligations under this Article VII, except to the extent that the Indemnifying Party is actually and materially prejudiced by such failure.
(b) The Indemnifying Party shall have the right, upon written notice to the Indemnified Party within thirty (30) days after receipt of the Indemnified Party's notice, to assume the defense of such Claim with counsel reasonably satisfactory to the Indemnified Party. If the Indemnifying Party assumes the defense of such Claim, it shall not be liable for any fees and expenses of separate counsel to the Indemnified Party incurred after the date of such assumption, unless (i) the Indemnified Party shall have been advised by counsel that a conflict of interest may exist between the Indemnifying Party and the Indemnified Party, or (ii) the Indemnifying Party shall not have employed counsel reasonably satisfactory to the Indemnified Party to represent the Indemnified Party within a reasonable time after the Indemnifying Party's assumption of the defense.
(c) The Indemnifying Party shall not, without the prior written consent of the Ind