UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

WASHINGTON, D.C. 20549

 

FORM 8-K

 

CURRENT REPORT

PURSUANT TO SECTION 13 OR 15(d) OF

THE SECURITIES EXCHANGE ACT OF 1934

 

Date of Report (Date of earliest event reported): December 15, 2014

 

STR Holdings, Inc.

(Exact Name of Registrant as Specified in Charter)

 

Delaware

 

001-34529

 

27-1023344

(State or Other Jurisdiction of

 

(Commission File Number)

 

(IRS Employer

Incorporation or Organization)

 

 

 

Identification No.)

 

10 Water Street

 

 

Enfield, Connecticut

 

06082

(Address of principal executive offices)

 

(Zip Code)

 

Registrant’s telephone number, including area code: ( 860) 272-4235

 

18 Craftsman Road

East Windsor, Connecticut 06088

(860) 763-7014

(Former Name or Former Address, if Changed Since Last Report)

 

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instruction A.2. below):

 

o             Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

 

o             Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

 

o             Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

 

o             Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

 

 

 



 

Item 1.01                                            Entry into a Material Definitive Agreement.

 

Reference is made to Item 3.02 of this Current Report on Form 8-K regarding the Registration Rights Agreement (as defined below). The disclosure contained in Item 3.02 with respect to the Registration Rights Agreement and the information contained in Exhibit 10.1 attached hereto are hereby incorporated by reference in their entirety into this Item 1.01.

 

Item 3.02                                            Unregistered Sales of Equity Securities.

 

On December 15, 2014 (the “ Closing Date ”), STR Holdings, Inc. (the “ Company ”), completed its previously announced sale of 27,632,130 shares (the “ Purchased Shares ”) of its authorized but unissued common stock, par value $0.01 per share (the “ Common Stock ”), to Zhen Fa New Energy (U.S.) Co., Ltd. (the “ Purchaser ”), a Nevada corporation and indirect subsidiary of Zhenfa Energy Group Co., Ltd., a Chinese limited liability company (“ Zhenfa ”), for an aggregate purchase price of approximately $21.7 million (the “ Share Issuance ”), pursuant to a Stock Purchase Agreement, dated as of August 11, 2014 (the “ Purchase Agreement ”), by and between the Company and the Purchaser. The issuance and sale of the Purchased Shares was a private placement exempt from registration pursuant to Section 4(2) of the Securities Act of 1933, as amended.

 

In connection with the closing of the Share Issuance (the “ Closing ”), the Company entered into a registration rights agreement (the “ Registration Rights Agreement ”) with the Purchaser that will, among other things, require the Company to register the Purchased Shares upon the request of the Purchaser or certain transferees of the Purchaser.  Pursuant to the terms of the Registration Rights Agreement, these registration rights will not become effective until one year after the Closing Date and the costs incurred in connection with such registrations will be borne by the Company.

 

The foregoing description of the Share Issuance, the Purchase Agreement and the Registration Rights Agreement is not complete and is qualified in its entirety by reference to the full text of the Purchase Agreement, which was attached as Exhibit 2.1 to the Company’s Current Report on Form 8-K filed with the Securities and Exchange Commission (the “ SEC ”) on August 12, 2014, and is incorporated herein by reference, and the Registration Rights Agreement, which is attached as Exhibit 10.1 to this Current Report on Form 8-K and is incorporated herein by reference.

 

Item 5.01                                            Changes in Control of Registrant.

 

As more fully described under Item 3.02 of this Current Report on Form 8-K, which disclosures are incorporated herein by reference, following the Share Issuance, the Purchaser currently owns approximately 51% of the Company’s outstanding Common Stock.  Therefore, the Share Issuance resulted in a change in control of the Company.

 

Pursuant to the Purchase Agreement, two members of the Board of Directors of the Company (the “ Board ”) resigned effective as of the Closing and the Board was expanded from five members to seven members. Four new directors, who were each nominated by the Purchaser, were appointed to the Board effective as of the Closing, constituting a majority of the Board. Reference is made to Item 5.02 of this Current Report on Form 8-K regarding the resignation of certain directors and the appointment of new officers and directors. The disclosure contained in Item 5.02 is hereby incorporated by reference in its entirety into this Item 5.01.

 

Item 5.02                                            Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers.

 

Effective as of the Closing, each of Robert M. Chiste and Dennis L. Jilot, who served as members of the Board prior to the Closing, resigned from their directorships and any committee of which they were a member. These resignations were as a result of the Closing and pursuant to the terms of the Purchase Agreement and were not

 

2



 

a result of any disagreements with the Company on any matter relating to the Company’s operations, policies or practices.

 

Effective as of the Closing, and pursuant to the terms of the Purchase Agreement, the Company appointed Andrew Africk, Eugene Cha, Qu Chao and Xin (Cindy) Lin to the Board. Each of Messrs. Africk, Cha, Chao and Ms. Lin were nominated by the Purchaser (each, a “ Purchaser Director ”). Messrs. Africk and Cha are independent directors (in accordance with the rules of the New York Stock Exchange) and have each been named to the Audit Committee and the Nominating and Corporate Governance Committee of the Board. Mr. Africk has also been named to the Compensation Committee of the Board.

 

Effective as of the Closing, John A. Janitz and Andrew M. Leitch were each named to the new Special Committee of Continuing Directors.

 

Andrew Africk , 48, is the founder of Searay Capital LLC, a private investment company. Mr. Africk founded Searay Capital in July 2013 after 21 years leading private equity and capital markets investments for Apollo Global Management LLC, referred to as Apollo, a leading global alternative asset manager with assets under management exceeding US $150 billion. As a Senior Partner at Apollo, Mr. Africk was responsible for investments in technology and communications and has over 22 years of experience financing, analyzing and investing in public and private companies. In July 2014, Mr. Africk was appointed to serve on the board of directors of Alliqua BioMedical where he serves on the audit committee. In the last five years, Mr. Africk has served on the boards of directors for various public companies including Hughes Telematics, Inc. and Hughes Communications, Inc., where he served on the compensation and nomination committees. He also served on the board of directors of Parallel Petroleum, Inc., a private company. Mr. Africk serves on the Board of Overseers of the University Of Pennsylvania School Of Engineering, the UCLA Science Board, and is a Trustee of the Trinity School in New York City.

 

Mr. Africk is a significant minority stockholder of the Company, owning approximately 7.5% of the Company’s outstanding shares of Common Stock prior to the Closing. Nevertheless, as a result of his independence from the Purchaser, Mr. Africk is one of two independent directors nominated by the Purchaser. Mr. Africk was selected to serve on our Board in light of his significant experience in making and managing private equity investments and extensive experience in financing, analyzing and investing in public and private companies, as well as his experience as a director of public and private companies, including service on audit, compensation and nominating committees.

 

Eugene Cha, 58, currently serves as Chairman of CPY Financial Factoring Co., Ltd., the first financial factoring joint venture between China and Hong Kong. Mr. Cha also serves as a non-executive director of Core Pacific Yamaichi Securities (HK) Co., Ltd., the first Taiwanese securities firm formed in Hong Kong, as an independent director at Founder Fubon Fund Management Co., Ltd., the first mutual fund joint venture formed between Chinese and Taiwanese companies, and an external supervisor at Xiamen Bank, the first Taiwanese invested commercial bank in China. From 1984 to 2006, Mr. Cha was a partner with the international law firm Cha & Cha LLP and focused his practice on international corporate finance and mergers and acquisitions. Mr. Cha has also served as an independent director from 2005 to 2008 at Dacheng Fund Management Co., Ltd and served as vice chairman of the YouChange PuRong Information Technology, Ltd., a social business created by Grameen Foundation USA, China Social Entrepreneur Foundation, and two financial companies designed to increase access to microfinance for millions of poor farmers in rural China. Mr. Cha has been a director, including past president, of the Chinese American Political Action Association in New York and also served as a Member of the National Assembly, Taiwan from 1992 until 1996, where he was actively involved on the Constitutional Amendment Advisory Committee which ultimately amended the Constitution to allow direct election of the Taiwanese President, a major step in the modernization of the democratic process in Taiwan.

 

Mr. Cha was selected to serve on the Board in light of his extensive experience as a director of various private companies in Asia and his significant legal expertise in international corporate finance and other corporate matters.

 

Qu Chao, 38, has served as the General Manager of Zhenfa Chongqing Overseas Investment Co., Ltd., Vice General Manager of Zhenfa and Vice President of Zhenfa and its affiliated entities (the “Zhenfa Group”) since January 2014 where he manages the companies and focuses on finance management, investment and overseas

 

3



 

business. Since 2012, Mr. Qu has served in a number of capacities with the Zhenfa Group, including as Chairman Assistant and Director of Finance & Invest Department of the Zhenfa Group between April 2012 and December 2013, and Director, Vice General Manager, and Chief Financial Officer of Zhenfa between November 2012 and June 2014. As one of the founders of Zhenfa, Mr. Qu developed the electricity investment business for Zhenfa and also was responsible for the Zhenfa’s strategic cooperation relationship with First Solar. Between October 2009 and March 2012, Mr. Qu has served as the Chief Financial Officer in the renewable energy industry in China at CECEP (Jiangyin) Low Carbon Economy & Technology Development Co., Ltd. and Chief Financial Officer at China Energy Conservation and Environmental Protection Investment (Wuxi) Co., Ltd. between August 2008 and November 2011. Mr. Qu also has prior auditing experience in China having worked as Senior Project Manager (responsible for assisting a public company) in Beijing Xinghua Certified Public Accountants Co., Ltd.

 

Mr. Qu was selected to serve on the Board in light of his financial background and his experience in the renewable energy sector, particularly in China, as well has his relationship with Zhenfa and its affiliates, and its interests as the majority beneficial owner of our common stock.

 

Xin (Cindy) Lin, 42, is currently President of the Purchaser, having served in this capacity since April 2013 and is responsible for leading Zhenfa’s activities in the U.S., including strategic business planning and development, project development and management, product marketing and sales, as well as Zhenfa’ s investment and acquisition activities in U.S. Ms. Lin has also worked at Medtronic IT since August 2001, where she currently serves as senior principal IT developer, with a primary focus in the area of business intelligence, data management and data analytics. In 2006, Ms. Lin founded L&B International LLC, a consulting firm focusing on providing consulting services in the area of renewable energy development, and is currently its President. Ms. Lin previously worked at the Bank of China in Beijing, China, where she was responsible for international trade settlement, issuance and payment of letters of credit, letters of guarantee and other financial instruments for export and import companies.

 

Ms. Lin was selected to serve on the Board in light of her relationship with Zhenfa, and its interests as the majority beneficial owner of our Common Stock, particularly her experience as the member of the Zhenfa management team with the most familiarity with conducting business within the United States.

 

No Purchaser Director has a family relationship with any other director or executive officer on the Board. There are no arrangements or understandings, other than the Purchase Agreement, pursuant to which the Purchaser Directors were selected. There are no related party transactions between the Company and the Purchaser Directors reportable under Item 404(a) of Regulation S-K.

 

In connection with the Share Issuance, the Compensation Committee of the Board recommended to the Board, and the Board with the consent of the Purchaser, a new compensation policy, effective upon the Closing. The new compensation policy is applicable to all of the Company’s independent directors. Directors who are employees of the Company or employees of or affiliated with the Purchaser or Zhenfa will not receive compensation for their service as members of either the Board or any committee thereof. Robert S. Yorgensen, as the Company’s President and Chief Executive Officer, and Ms. Lin and Mr. Qu, as employees of the Purchaser and Zhenfa, respectively, will not receive any compensation for their service on the Board or any committee thereof. All other non-employee directors will receive compensation as described in the Company’s Definitive Proxy Statement filed with the SEC on October 8, 2014.

 

A copy of a press release announcing the appointment of the Purchaser Directors is attached hereto as Exhibit 99.1 and incorporated herein by reference.

 

Item 8.01                                            Other Events.

 

On December 15, 2014, the Company issued a press release announcing the Closing and declaring a special dividend of $0.85 per share payable on each share of Common Stock, other than the shares of Common Stock owned by the Purchaser. The dividend is payable on January 2, 2015 to stockholders of record as of the record date, December 26, 2014. The ex-dividend date for the dividend is January 5, 2015. A copy of the press release is attached hereto as Exhibit 99.2 and incorporated herein by reference.

 

4



 

Item 9.01                                            Financial Statements and Exhibits.

 

(d)

 

Exhibit
Number

 

Description

10.1

 

Registration Rights Agreement, dated as of December 15, 2014, by and between STR Holdings, Inc. and Zhen Fa New Energy (U.S.) Co., Ltd.

 

 

 

99.1

 

Press Release entitled “STR Holdings Announces New Board of Director Composition” issued by the Company on December 15, 2014.

 

 

 

99.2

 

Press Release entitled “STR Holdings Closes Sales of Controlling Interest to Zhenfa Energy Group and Declares Special Dividend” issued by the Company on December 15, 2014.

 

5



 

SIGNATURE

 

Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.

 

 

STR Holdings, Inc.

 

 

 

Date: December 15, 2014

By:

/s/ ALAN N. FORMAN

 

 

Alan N. Forman

 

 

Senior Vice President and General Counsel

 

6



 

EXHIBIT INDEX

 

Exhibit
Number

 

Description

10.1

 

Registration Rights Agreement, dated as of December 15, 2014, by and between STR Holdings, Inc. and Zhen Fa New Energy (U.S.) Co., Ltd.

 

 

 

99.1

 

Press Release entitled “STR Holdings Announces New Board of Director Composition” issued by the Company on December 15, 2014.

 

 

 

99.2

 

Press Release entitled “STR Holdings Closes Sales of Controlling Interest to Zhenfa Energy Group and Declares Special Dividend” issued by the Company on December 15, 2014.

 

7


Exhibit 10.1

 

REGISTRATION RIGHTS AGREEMENT

 

THIS REGISTRATION RIGHTS AGREEMENT (this “ Agreement ”) is made and entered into as of December 15, 2014, by and between STR Holdings, Inc., a Delaware corporation (the “ Company ”), and Zhen Fa New Energy (U.S.) Co., Ltd., a Nevada corporation (the “ Stockholder ”).  Each of the Company and the Stockholder may be referred to in this Agreement as a “ Party ,” and, collectively, as the “ Parties .”  Capitalized terms used but not otherwise defined herein have the meanings assigned such terms in Section 9 of this Agreement.

 

A.                                     The Company and the Stockholder are parties to that certain Stock Purchase Agreement, dated as of August 11, 2014 (the “ Purchase Agreement ”), pursuant to which the Stockholder is purchasing an aggregate of 27,632,130 shares of Common Stock of the Company (the “ Purchased Shares ”).

 

B.                                     In connection with the transactions contemplated by the Purchase Agreement, and pursuant to the terms of the Purchase Agreement, the Parties desire to enter into this Agreement in order to grant to the Stockholder and certain of its permitted transferees certain demand and piggyback registration rights covering the Purchased Shares, all in accordance with the terms and conditions set forth below.

 

NOW, THEREFORE, in consideration of the mutual covenants contained herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Company and the Stockholder hereby agree as follows:

 

1.                                       Demand Registrations .

 

(a)                                  Short-Form Registrations .  At any time after twelve (12) months following the date hereof, each Holder may request registration under the Securities Act of all or any portion of its Registrable Securities on Form S-3 or any successor form (each, a “ Short-Form Registration ”), which may, if so requested, be a “shelf” registration under Rule 415 under the Securities Act.  Each request for a Short-Form Registration shall specify the number of Registrable Securities requested to be registered.

 

(b)                                  Long-Form Registrations .  At any time that a Holder is then eligible to request registration under the Securities Act of all or any portion of its Registrable Securities but where Short-Form Registration pursuant to Section 1(a) of this Agreement is not available to be used by the Company in respect of such proposed registration, but in no event earlier than twelve (12) months following the date hereof, each Holder shall be entitled to request a registration on Form S-1 or any similar form (each, a “ Long-Form Registration ”)A registration shall not count as one of the permitted Long-Form Registrations unless and until a registration statement relating thereto has become effective under the Securities Act and each requesting Holder is able to register and sell at least fifteen percent (15%) of its Registrable Securities thereunder.

 

(c)                                   Priority on Demand Registration .  Holders shall have the right to request that a Demand Registration be effected as an underwritten offering at any time, subject to this

 

1



 

Section 1 by delivering to the Company a notice setting forth such request and the number of Registrable Securities sought to be disposed of by such Holder in such underwritten offering.  All Holders proposing to participate in such underwriting shall (i) enter into an underwriting agreement in customary form with the underwriter(s) selected for such underwriting by a Majority-in-Interest of the Registrable Securities included in such offering, which underwriter(s) shall be reasonably acceptable to the Company, provided that, with respect to such underwriting agreement or any other documents reasonably required under such agreement, (A) no Holder shall be required to make any representation or warranty with respect to or on behalf of the Company or any other stockholder of the Company and (B) the liability of any Holder shall be limited as provided in Section 6(b) hereof, and (ii) complete and execute all questionnaires, powers-of-attorney, indemnities, opinions and other documents required under the terms of such underwriting agreement.   If the managing underwriter(s) for an underwritten offering advise(s) the Company and the Holders in writing that the dollar amount or number of Registrable Securities which the Holders desire to sell, taken together with all other Common Stock or other securities which the Company desires to sell and the Common Stock or other securities, if any, as to which registration has been requested pursuant to written contractual piggyback registration rights held by other stockholders of the Company, if any, who desire to sell or otherwise, exceeds the maximum dollar amount or maximum number of securities that can be sold in such offering without adversely affecting the proposed offering price, the timing, the distribution method, or the probability of success of such offering (such maximum dollar amount or maximum number of securities, as applicable, the “ Maximum Threshold ”), then the Company shall include in such registration:  (1)  first , the Registrable Securities (pro rata in accordance with the number of Registrable Securities which such Holders have requested be included in such underwritten offering, regardless of the number of Registrable Securities or other securities held by each such Person) that can be sold without exceeding the Maximum Threshold; (2)  second , to the extent that the Maximum Threshold has not been reached under the foregoing clause (1), the Common Stock or other securities that the Company desires to sell that can be sold without exceeding the Maximum Threshold; (3)  third , to the extent that the Maximum Threshold has not been reached under the foregoing clauses (1) and (2), the Common Stock or other securities for the account of other Persons that the Company is obligated to register pursuant to written contractual arrangements, if any, with such Persons and that can be sold without exceeding the Maximum Threshold; and (4)  fourth , to the extent that the Maximum Threshold has not been reached under the foregoing clauses (1), (2) and (3), the Common Stock that other stockholders desire to sell that can be sold without exceeding the Maximum Threshold to the extent that the Company, in its sole discretion, wishes to permit such sales pursuant to this clause (4).

 

A request for an underwritten offering may be withdrawn by Holders of a majority of the Registrable Securities proposed to be included in such offering prior to the consummation thereof, and, in such event, such withdrawal shall not be treated as a request for an underwritten offering which shall have been effected pursuant to the immediately preceding paragraph.  In no event will a Demand Registration count as a Demand Registration unless at least fifty percent (50%) of all Registrable Securities requested to be registered in such Demand Registration by the Holders initiating such Demand Registration are, in fact, registered in such registration.

 

2



 

(d)                                  The Company shall not be obligated to effect (i) more than five Long-Form Registrations, (ii) more than one Demand Registration (including any underwritten offering) during any nine-month period or (iii) any Demand Registration unless the number of Registrable Securities sought to be registered on such Registration Statement is at least 1,000,000 shares (subject to adjustment for any stock dividend or stock split or in connection with an exchange or combination of shares, recapitalization, merger, consolidation or other reorganization); provided, however, that if the aggregate amount of Registrable Securities shall be less than 1,000,000 shares (subject to adjustment for any stock dividend or stock split or in connection with an exchange or combination of shares, recapitalization, merger, consolidation or other reorganization) the Company shall, upon request by the Holders, register such amount of Registrable Securities on one Registration Statement.

 

(e)                                   If the filings contemplated herein are not permitted under the rules and regulations promulgated by the Securities and Exchange Commission or by any Commission Guidance, then within thirty (30) days after a written request by one or more Holders to register for resale any additional Registrable Securities owned by such Holders that have not been registered for resale on a “shelf” Registration Statement, the Company shall file a Registration Statement similar to the Registration Statement then effective (each, a “ Follow-On Registration Statement ”), to register for resale 100%, or such portion as permitted by Commission Guidance (provided that the Company shall use commercially reasonable efforts to advocate with the Securities and Exchange Commission for the registration of all or the maximum number of the Registrable Securities as permitted by Commission Guidance), of such additional Registrable Securities. The Company shall give written notice of the filing of the Follow-On Registration Statement at least twenty-five (25) days prior to filing the Follow-On Registration Statement to all Holders (the “ Follow-On Registration Notice ”) and shall include in such Follow-On Registration Statement all such additional Registrable Securities with respect to which the Company has received written requests for inclusion therein within twenty (20) days after sending the Follow-On Registration Notice.  Notwithstanding the foregoing, the Company shall not be required to file a Follow-On Registration Statement (i) if it has filed a Follow-On Registration Statement within the prior six-month period, or (ii) if the aggregate amount of additional Registrable Securities requested to be registered on such Follow-On Registration Statement is less than 1,000,000 shares (subject to adjustment for any stock dividend or stock split or in connection with an exchange or combination of shares, recapitalization, merger, consolidation or other reorganization).  The Company shall use commercially reasonable efforts to cause such Follow-On Registration Statement to be declared effective as promptly as practicable after filing such Follow-On Registration Statement.

 

(f)                                    Notwithstanding any other provision of this Agreement, if any Commission Guidance sets forth a limitation of the number of Registrable Securities to be registered on a particular Registration Statement (notwithstanding the Company’s commercially reasonable efforts to advocate with the Securities and Exchange Commission for the registration of all or a greater number of Registrable Securities), then, unless otherwise directed in writing by a Holder as to its Registrable Securities, the amount of Registrable Securities to be registered on

 

3



 

such Registration Statement will be reduced pro rata among the Holders based on the total number of unregistered Registrable Securities held by such Holders.

 

2.                                       Piggyback Registrations .

 

(a)                                  Right to Piggyback .  Whenever the Company proposes to register any of its securities under the Securities Act, and the registration form proposed to be used may be used to register the resale of Registrable Securities (each, a “ Piggyback Registration ”), the Company shall give prompt written notice (in any event at least ten (10) Business Days prior to the anticipated filing date of the Registration Statement relating to such registration) to each Holder of its intention to effect such a registration and shall use its commercially reasonable efforts to include in such registration all Registrable Securities with respect to which the Company has received a written request from each Holder for inclusion therein within five (5) Business Days following such Holder’s receipt of the Company’s notice.  All Holders proposing to distribute their securities through a Piggyback Registration that involves an underwriter(s) shall enter into an underwriting agreement in reasonable and customary form with the underwriter(s) selected for such Piggyback Registration, provided that with respect to such underwriting agreement or any other documents reasonably required under such agreement, (i) no Holder shall be required to make any representation or warranty with respect to or on behalf of the Company or any other stockholder of the Company and (ii) the liability of any Holder shall be limited as provided in Section 6(b) hereof and (iii) each Holder shall complete and execute all questionnaires, powers-of-attorney, indemnities, opinions and other documents reasonably required under the terms of such underwriting agreement.  No registration effected under this Section 2 shall relieve the Company of its obligations to effect a Demand Registration required by Section 1. If at any time after giving notice of its intention to register any Company securities pursuant to this Section 3(a) 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 such securities, the Company shall give notice to all of the Holders participating in such Piggyback Registration and, thereupon, shall be relieved of its obligation to register any Registrable Securities in connection with such registration.

 

(b)                                  Reduction of Offering .  If the managing underwriter(s) for a Piggyback Registration that is to be an underwritten offering advises the Company and the Holders that in their opinion the dollar amount or number of Common Stock or other securities which the Company desires to sell, taken together with Common Stock or other securities, if any, as to which registration has been demanded pursuant to written contractual arrangements with third parties, if any, the Registrable Securities as to which registration has been requested under this Section 2 , and the Common Stock or other securities as to which registration has been requested pursuant to the written contractual piggyback registration rights of other stockholders of the Company, exceeds the Maximum Threshold, then the Company shall include in any such registration:

 

(i)                                      If the registration is undertaken for the Company’s account:  (A)  first , the Common Stock or other securities that the Company desires to sell that can be sold without exceeding the Maximum Threshold, and (ii)  second , to the

 

4



 

extent that the Maximum Threshold has not been reached under the foregoing clause (A), the Registrable Securities and the Common Stock or other securities proposed to be sold for the account of other Persons that the Company is obligated to register pursuant to any written contractual piggyback registration rights with such Persons and that can be sold without exceeding the Maximum Threshold (pro rata in accordance with the number of Registrable Securities and Common Stock or other securities which such Holders and other Persons have requested be included in such underwritten offering, regardless of the number of Registrable Securities and Common Stock or other securities held by each such Holder or other Person), and

 

(ii)                                   If the registration is a “demand” registration undertaken at the demand of one or more Persons other than the Company and any Holder, (A)  first , the Common Stock or other securities for the account of such demanding Persons that can be sold without exceeding the Maximum Threshold; (B)  second , to the extent that the Maximum Threshold has not been reached under the foregoing clause (A), the Common Stock or other securities that the Company desires to sell that can be sold without exceeding the Maximum Threshold; and (C)  third , to the extent that the Maximum Threshold has not been reached under the foregoing clauses (A) and (B), the Registrable Securities and the Common Stock or other securities proposed to be sold for the account of other Persons that the Company is obligated to register pursuant to any written contractual piggyback registration rights with such Persons and that can be sold without exceeding the Maximum Threshold (pro rata in accordance with the number of Registrable Securities and Common Stock or other securities which such Holders and other Persons have requested be included in such underwritten offering, regardless of the number of Registrable Securities and Common Stock or other securities held by each such Holder or other Person).

 

(c)                                   Selection of Underwriters .  If any Piggyback Registration is an underwritten primary offering, the investment banker(s) and manager(s) for the offering shall be selected by the Company.

 

3.                                       Market Standoff Agreement .

 

(a)                                  The Company (i) shall not effect any public sale or distribution of its equity securities, or any securities convertible into or exchangeable or exercisable for such securities, during the period beginning on the date the Company receives a request for an underwritten offering from any Holder and continuing until sixty (60) days after the commencement of an underwritten offering, unless the underwriters managing the registered public offering otherwise agree after consultation with a Majority-in-Interest, and (ii) shall cause each executive officer and director of the Company and each holder of its Common Stock, or any securities convertible into or exchangeable or exercisable for such Common Stock, purchased from the Company at any time after the date of this Agreement (other than in a registered public offering) to agree not to effect any public sale or distribution (including sales pursuant to Rule 144 under the Securities Act) of any such securities during such period (except as part of

 

5



 

such underwritten registration, if otherwise permitted), unless the underwriters managing the registered public offering otherwise agree.

 

(b)                                  Each Holder of Registrable Securities agrees that in connection with any public offering of the Company’s equity securities, or any securities convertible into or exchangeable or exercisable for such securities, and upon the request of the managing underwriter(s) in such offering, such Holder shall not, without the prior written consent of such managing underwriter(s), during the period commencing on the date that is ten (10) days prior to the consummation of such offering and continuing until sixty (60) days after the commencement of an underwritten offering, (i) offer, pledge, sell, contract to sell, grant any option or contract to purchase, purchase any option or contract to sell, hedge the beneficial ownership of or otherwise dispose of, directly or indirectly, any shares of Common Stock or any securities convertible into, exercisable for or exchangeable for shares of Common Stock (whether such shares or any such securities are then owned by the Holder or are thereafter acquired), or (ii) enter into any swap or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of such securities, whether any such transaction described in clause (i) or (ii) above is to be settled by delivery of Common Stock or such other securities, in cash or otherwise. The foregoing provisions of this Section 3(b) shall not apply to sales of Registrable Securities to be included in such offering pursuant to Sections 1 and 2, and shall be applicable to the holders of Registrable Securities only if all executive officers and directors of the Company and each holder of its Common Stock, or any securities convertible into or exchangeable or exercisable for such Common Stock, purchased from the Company at any time after the date of this Agreement are subject to the same restrictions. Each holder of Registrable Securities agrees to execute and deliver such other agreements as may be reasonably requested by the Company or the managing underwriter which are consistent with the foregoing or which are necessary to give further effect thereto. Notwithstanding anything to the contrary contained in this Section 3(b), each holder of Registrable Securities shall be released, pro rata, from any lock-up agreement entered into pursuant to this Section 3(b) in the event and to the extent that the managing underwriter or the Company permit any discretionary waiver or termination of the restrictions of any lock-up agreement pertaining to any executive officer, director or other holder of Common Stock.

 

4.                                       Registration Procedures .

 

(a)                                  Whenever the Holder has requested that any Registrable Securities be registered pursuant to this Agreement, the Company shall use commercially reasonable efforts to effect the registration and the sale of such Registrable Securities in accordance with the Holder’s intended method of disposition thereof, and pursuant thereto the Company shall as expeditiously as possible:

 

(i)                                      (A) prepare and file with the Securities and Exchange Commission a Registration Statement with respect to such Registrable Securities as soon as reasonably practicable, but in any event within thirty (30) days following the date of a demand for registration pursuant to Section 1(a) or Section 1(b) of this Agreement, as applicable, and (B) use commercially reasonable efforts to cause such Registration Statement (1) to

 

6



 

become effective as soon as practicable, and in any event within ninety (90) days, following the date of filing such Registration Statement (provided that before filing a Registration Statement or prospectus or any amendments or supplements thereto, the Company shall furnish to one counsel selected by Holders of a majority of the Registrable Securities proposed to be included therein copies of all such documents proposed to be filed, which documents shall be subject to the review and comment of such counsel) and (2) to remain effective and in compliance with the provisions of the Securities Act until all Registrable Securities (and any other securities, if applicable) covered by such Registration Statement have been disposed of in accordance with the intended method(s) of distribution set forth in such Registration Statement or such securities have been withdrawn;

 

(ii)                                   respond to written comments received from the Securities and Exchange Commission upon a review of any Registration Statement in a timely manner;

 

(iii)                                notify each Holder of the effectiveness of each Registration Statement filed hereunder; by 9:30 a.m. (New York time) on the second Business Day following such effectiveness, file with the Securities and Exchange Commission in accordance with Rule 424 under the Securities Act the final prospectus to be used in connection with sales pursuant to such Registration Statement; and prepare and file with the Securities and Exchange Commission such amendments and supplements to such Registration Statement and the prospectus used in connection therewith, and otherwise take such actions, as may be necessary to keep such Registration Statement effective until the earlier of (A) the date as of which each Holder may sell all of the Registrable Securities covered by such Registration Statement pursuant to Rule 144 under the Securities Act without limitation, restriction or condition thereunder, and (B) the date on which all of such Registrable Securities have been disposed of by each Holder, and comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such Registration Statement during such period in accordance with the intended methods of disposition by the sellers thereof set forth in such Registration Statement;

 

(iv)                               furnish to each Holder such number of copies of such Registration Statement, each amendment and supplement thereto, the prospectus included in such Registration Statement (including each preliminary prospectus) and such other documents as the Holders may reasonably request in order to facilitate the disposition of the Registrable Securities owned by each Holder;

 

(v)                                  if applicable, use commercially reasonable efforts to register or qualify the shares covered by such Registration Statement under such other securities or blue sky laws of such jurisdictions as each Holder shall reasonably request and do any and all other acts and things which may be reasonably necessary or advisable to enable each Holder to consummate the disposition in such jurisdictions of the Registrable Securities owned by such Holder (provided that the Company shall not be required to (A) qualify generally to do business in any jurisdiction where it would not otherwise be

 

7



 

required to qualify but for this subparagraph, (B) subject itself to taxation in any such jurisdiction or (C) consent to general service of process in any such jurisdiction);

 

(vi)                               notify each Holder at any time when a prospectus relating thereto is required to be delivered under the Securities Act, of the happening of any event as a result of which the prospectus included in such Registration Statement contains an untrue statement of a material fact or omits any fact necessary to make the statements therein not misleading, and, as expeditiously as possible following the happening of such event, prepare a supplement or amendment to such prospectus so that, as thereafter delivered to the purchasers of such Registrable Securities, such prospectus shall not contain an untrue statement of a material fact or omit to state any fact necessary to make the statements therein not misleading;

 

(vii)                            without limiting any obligations of the Company under the Purchase Agreement, use its commercially reasonable efforts to (x) cause all such Registrable Securities to be listed on each 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 (y) secure a designation and quotation of all of the Registrable Securities covered by each Registration Statement on the OTC Bulletin Board;

 

(viii)                         provide a transfer agent and registrar for all such Registrable Securities not later than the effective date of such Registration Statement;

 

(ix)                               enter into such customary agreements (including underwriting agreements in customary form) and take all such other actions as the Holders or the underwriters, if any, reasonably request in order to expedite or facilitate the disposition of such Registrable Securities (including effecting a stock split or a combination of shares);

 

(x)                                  make available for inspection by any underwriter participating in any disposition pursuant to such Registration Statement and any attorney, accountant or other agent retained by any such seller or underwriter, all financial and other records, pertinent corporate documents and properties of the Company, and cause the Company’s officers, directors, employees and independent accountants to supply all information reasonably requested by any such seller, underwriter, attorney, accountant or agent in connection with such Registration Statement;

 

(xi)                               otherwise use commercially reasonable efforts to comply with all applicable rules and regulations of the Securities and Exchange Commission, and make available to its security holders, as soon as reasonably practicable, an earnings statement covering the period of at least twelve (12) months beginning with the first day of the Company’s first full calendar quarter after the effective date of the Registration Statement, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder, and which requirement will be deemed satisfied if the Company timely files complete and accurate information on Forms 10-Q and 10-K and

 

8



 

Current Reports on Form 8-K under the Exchange Act and otherwise complies with Rule 158 under the Securities Act;

 

(xii)                            in the event of the issuance of any stop order suspending the effectiveness of a Registration Statement, or of any order suspending or preventing the use of any related prospectus or suspending the qualification of any Common Stock included in such Registration Statement for sale in any jurisdiction, the Company shall use commercially reasonable efforts promptly to obtain the withdrawal of such order;

 

(xiii)                         use commercially reasonable efforts to cause such Registrable Securities covered by such Registration Statement to be registered with or approved by such other governmental agencies or authorities as may be necessary to enable the Holders thereof to consummate the disposition of such Registrable Securities;

 

(xiv)                        permit any Holder who, in the reasonable judgment of the Company upon the advice of counsel, might be deemed to be an underwriter or controlling person of the Company, and, if applicable, any underwriter, a cold comfort letter from the Company’s independent public accountants in customary form and covering such matters of the type customarily covered by cold comfort letters as the Holders of a majority of the Registrable Securities being sold reasonably request (provided that such Registrable Securities constitute at least ten percent (10%) of the securities covered by such Registration Statement); and

 

(xv)                           cooperate with each Holder and any broker or dealer through which any such Holder proposes to sell its Registrable Securities in effecting a filing with FINRA pursuant to FINRA Rule 5110 as requested by such Holder.

 

(b)                                  Each Holder has requested that any Registrable Securities be registered pursuant to this Agreement shall deliver to the Company such requisite information with respect to itself and its Registrable Securities as the Company may reasonably request for inclusion in the Registration Statement (and the prospectus included therein) as is necessary to comply with all applicable rules and regulations of the Securities and Exchange Commission, and that it will promptly notify the Company of any material changes in the information set forth in the Registration Statement furnished by or regarding the Holder or its plan of distribution.

 

(c)                                   The Holders shall not effect sales of the shares covered by the Registration Statement (i) prior to the withdrawal of any stop order suspending the effectiveness of the Registration Statement, or of any order suspending or preventing the use of any related prospectus or suspending the registration or qualification of any Registrable Securities included in the Registration Statement for sale in any jurisdiction where such shares had previously been registered or qualified or (ii) after receipt of facsimile or other written notice from the Company instructing such Holders to suspend sales to permit the Company to correct or update the Registration Statement or prospectus until such Holder receives copies of a supplemented or amended prospectus that corrects the misstatement(s) or omission(s) referred to above and receives notice that any required post-effective amendment has become effective.

 

9



 

(d)                                  At any time during the term of this Agreement, the Company may determine, in the good faith judgment of its Board of Directors, after consultation with the Company’s legal counsel, that offers and sales under the Registration Statement shall be suspended if (i) it is in the best interests of the Company not to disclose the existence of material facts surrounding any proposed or pending acquisition, disposition, strategic alliance or financing transaction involving the Company, the existence of which the Company has a  bona   fide  business purpose for keeping confidential and the nondisclosure of which in the Registration Statement would reasonably be expected to cause the Registration Statement to fail to comply with applicable disclosure requirements.  Immediately upon making such a determination, the Company shall give notice of such determination to the Holders of such Registrable Securities, upon receipt of which each such Holder agrees that it will immediately discontinue offers and sales of Registrable Securities under the Registration Statement until such Holder receives copies of a supplemented or amended prospectus that corrects the misstatement(s) or omission(s) referred to above and receives notice that any post-effective amendment has become effective; provided, that the Company may delay, suspend or withdraw the Registration Statement for such reason for no more than two times during any twelve (12)  consecutive month period and the duration of any such delay, suspension or withdrawal shall not exceed ninety (90) days in the aggregate in any twelve (12) consecutive month period.

 

10



 

5.                                       Registration Expenses .  All expenses (other than Selling Expenses) incident to the Company’s performance of or compliance with this Agreement, including without limitation all registration and filing fees, fees and expenses of compliance with securities or blue sky laws, printing expenses, messenger and delivery expenses, fees and disbursements of custodians, and fees and disbursements of counsel for the Company and independent certified public accountants, underwriters (excluding fees, discounts and commissions) and other persons retained by the Company, and reasonable fees and expenses of one counsel for the Holders in connection with any Demand Registration or Piggyback Registration (all such expenses being herein called “ Registration Expenses ”), shall be borne by the Company.  The Company shall not be liable for any Selling Expenses. As used herein, the term “Selling Expenses” shall mean, collectively, any selling commissions, discounts or brokerage fees. Selling Expenses shall be borne by the respective seller thereof, in proportion to the respective number of shares of Registrable Securities sold by each of them.

 

6.                                       Holder’s Obligations .  Each Holder covenants and agrees that, in the event the Company informs such Holder in writing that it does not satisfy the conditions specified in Rule 172 and, as a result thereof, such seller is required to deliver a prospectus in connection with any disposition of Registrable Securities, it will comply with the prospectus delivery requirements of the Securities Act as applicable to it (unless an exemption therefrom is available) in connection with sales of Registrable Securities pursuant to the Registration Statement, and shall sell the Registrable Securities only in accordance with a method of distribution described in the Registration Statement.

 

7.                                       Indemnification .

 

(a)                                  The Company shall indemnify, to the extent permitted by applicable law, each Holder, its officers, directors, partners, managers, members, investment managers, employees, affiliates, agents and representatives, and each Person who controls each Holder (within the meaning of the Securities Act) against all losses, claims, damages, liabilities and expenses (including reasonable legal expenses) arising out of or based upon (i) any untrue or alleged untrue statement of material fact contained in (or incorporated by reference therein) any Registration Statement, free writing prospectus, prospectus or preliminary prospectus, filing under any state securities (or blue sky) law or any amendment thereof or supplement thereto or any omission or alleged omission of a material fact required to be stated therein or necessary to make the statements therein not misleading, (ii) any violation or alleged violation by the Company of the Securities Act, the Exchange Act, any other law, including any state securities law, or any rule or regulation thereunder relating to the offer or sale of the Registrable Securities pursuant to a Registration Statement, or (iii) any breach or violation of this Agreement; provided, however, that the Company shall not be liable to any such indemnified party in any such case to the extent that (A) such claim arises out of or is based upon any untrue statement or alleged untrue statement of a material fact contained in (or incorporated by reference therein) any Registration Statement, free writing prospectus, prospectus or preliminary prospectus, filing under any state securities (or blue sky) law or any amendment thereof or supplement thereto or any omission or alleged omission of a material fact in reliance upon and in conformity with information furnished to the Company by or on behalf of such indemnified party or its Affiliates

 

11



 

specifically for use therein, or (B) such claim is related to the use by a Holder or underwriter, if any, of an outdated or defective prospectus after such party has received written notice from the Company that such prospectus is outdated or defective.  In connection with an underwritten offering, the Company shall indemnify such underwriters, their officers and directors and each Person who controls such underwriters (within the meaning of the Securities Act) to the same extent as provided above with respect to the indemnification of the holders of Registrable Securities.

 

(b)                                  Each Holder shall, severally and not jointly, to the extent permitted by applicable law, indemnify the Company, its directors and officers and each Person who controls the Company (within the meaning of Section 15 the Securities Act and Section 20 of the Exchange Act), to the fullest extent permitted by applicable law, against any losses, claims, damages, liabilities and expenses (including reasonable legal expenses) arising out of or based upon any untrue or alleged untrue statement of material fact contained in (or incorporated by reference therein) the Registration Statement, free writing prospectus, prospectus or preliminary prospectus or any amendment thereof or supplement thereto or any omission or alleged omission of a material fact required to be stated therein or necessary to make the statements herein not misleading, but only to the extent that such untrue statement or omission was made in reliance upon and in conformity with any information furnished in writing to the Company by such Holder or its representatives by or on behalf of such Holder expressly for use therein; provided that each Holder shall be liable under this Section 6(b)  of this Agreement (and otherwise) for only up to the amount of net amount of proceeds actually received by each Holder as a result of the sale of Registrable Securities pursuant to the Registration Statement giving rise to such indemnification obligation.

 

(c)                                   Any Person entitled to indemnification hereunder shall (i) give prompt written notice to the indemnifying party of any claim with respect to which it seeks indemnification (provided that the failure to give prompt notice shall not impair any Person’s right to indemnification hereunder to the extent such failure has not prejudiced the indemnifying party) and (ii) unless, in the Company’s reasonable judgment, a conflict of interest between such indemnified and indemnifying parties may exist with respect to such claim, permit such indemnifying party to assume the defense of such claim with counsel reasonably satisfactory to the indemnified party.  After written notice from the indemnifying party to the indemnified party of its election to assume the defense of such claim, the indemnifying party shall not be subject to any liability for any settlement subsequently made by the indemnified party without its consent (but such consent shall not be unreasonably withheld, conditioned or delayed).  An indemnifying party who is not entitled to, or elects not to, assume the defense of a claim shall not be obligated to pay the fees and expenses of more than one counsel for all parties indemnified by such indemnifying party with respect to such claim, unless in the reasonable judgment of the Company, a conflict of interest may exist between such indemnified party and any other of such indemnified parties with respect to such claim, in which case the indemnifying party shall be liable for the fees and expenses of one additional firm of attorneys with respect to the indemnified parties. The indemnifying party shall keep the indemnified party reasonably apprised at all times as to the status of the defense or any settlement negotiations with respect to

 

12



 

such claim. No indemnifying party shall, without the prior written consent of the indemnified party, consent to entry of any judgment or enter into any settlement or other compromise which does not include as an unconditional term thereof the giving by the claimant or plaintiff to such indemnified party of a full release from all liability with respect to such claim.

 

(d)                                  The indemnification provided for under this Agreement shall remain in full force and effect regardless of any investigation made by or on behalf of the indemnified party or any officer, director, partner, manager, member, investment manager, employee, affiliate, agent, representative or controlling Person of such indemnified party and shall survive the transfer of Registrable Securities.  The indemnity agreements contained herein shall be in addition to (i) any cause of action or similar right of the indemnified party against the indemnifying party or others, and (ii) any liabilities to which the indemnifying party may be subject pursuant to the law.

 

(e)                                   If the indemnification provided for in this Section 7 of this Agreement is unavailable to or is insufficient to hold harmless an indemnified party under the provisions above in respect to any losses, claims, damages or liabilities referred to therein, then the indemnifying party shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages or liabilities to the fullest extent permitted by law; provided, however, that: (i) no Person involved in the sale of Registrable Securities which Person is guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) in connection with such sale shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation, and (ii) contribution by each Holder shall be limited in amount to the net amount of proceeds actually received by such Holder from the sale of such Registrable Securities pursuant to the applicable Registration Statement, less the amount of any damages that such Holder has otherwise been required to pay in connection with such sale.

 

8.                                       Reports under the Exchange Act .  With a view to making available to the each Holder the benefits of Rule 144 under the Securities Act or any other similar rule or regulation of the Securities and Exchange Commission that may at any time permit a Holder to sell securities of the Company to the public without registration (“ Rule 144 ”), at all times during which there are Registrable Securities outstanding that have not been previously (i) sold to or through a broker or dealer or underwriter in a public distribution or (ii) sold in a transaction exempt from the registration and prospectus delivery requirements of the Securities Act under Section 4(1) thereof, in the case of either clause (i) or clause (ii) in such a manner that, upon the consummation of such sale, all transfer restrictions and restrictive legends with respect to such shares are removed upon the consummation of such sale, the Company agrees to use its commercially reasonable efforts to:

 

(a)                                  make and keep public information available, as those terms are understood and defined in Rule 144;

 

(b)                                  file with the Securities and Exchange Commission in a timely manner all reports and other documents required of the Company under the Exchange Act, so long as the

 

13



 

Company remains subject to such requirements and the filing of such reports and other documents is required for the applicable provisions of Rule 144; and

 

(c)                                   furnish to each Holder so long as such Holder owns Registrable Securities, promptly upon request, (i) a written statement by the Company, if true, that it has complied with the reporting requirements of Rule 144 and the Exchange Act, (ii) a copy of the most recent annual or quarterly report of the Company and such other reports and documents so filed by the Company, and (iii) such other information as may be reasonably requested to permit each Holder to sell such securities pursuant to Rule 144 without registration.

 

9.                                       Preservation of Rights .  Without the prior written consent of a Majority-in-Interest, the Company shall not, on or after the date of this Agreement, (i) grant any registration rights to third parties which are more favorable than or inconsistent with the rights granted hereunder, or (ii) enter into any agreement, take any action, or permit any change to occur, with respect to its securities that is inconsistent with or violates or subordinates the rights expressly granted to each Holder in this Agreement, such as (A) affecting the ability of each Holder to include the Registrable Securities in a registration undertaken pursuant to this Agreement or (B) affecting the marketability of such Registrable Securities in any such registration (including effecting a stock split or a combination of shares).

 

10.                                Definitions .

 

Affiliate ” means (i) any Person that directly, or indirectly through one or more intermediaries, controls, is controlled by or is under common control with such other Person, (ii) any executive officer or general partner of such other Person and (iii) any legal entity for which such Person acts as executive officer or general partner, and “ control ” for these purposes means the direct or indirect power to direct or cause the direction of the management and policies of another Person, whether by operation of law or regulation, through ownership of securities, as trustee or executor or in any other manner.

 

Business Day means any day on which the principal offices of the Securities and Exchange Commission in Washington, DC are open to accept filings.

 

Commission Guidance ” means (i) any publicly available written guidance or rule of general applicability of the Securities and Exchange Commission staff or (ii) written comments, requirements or requests of the Securities and Exchange Commission staff to the Company in connection with the review of a Registration Statement.

 

Common Stock ” means the common stock, par value $0.01 per share, of the Company, and includes all securities of the Company issued or issuable with respect to such securities by way of a stock split, stock dividend, or in exchange for or upon conversion of such shares or otherwise in connection with a combination of shares, distribution, recapitalization, merger, consolidation, or other corporate reorganization.

 

Continuing Directors ” has the meaning ascribed to such term in the Purchase Agreement.

 

14



 

Demand Registration ” means a Short-Form Registration or a Long-Form Registration.

 

Exchange Act ” means the Securities Exchange Act of 1934, as amended from time to time, and the rules and regulations promulgated thereunder.

 

FINRA ” means the Financial Industry Regulatory Authority, and any agency or authority succeeding to the functions thereof.

 

Holder ” means (i) the Stockholder in its capacity as a holder of record of Registrable Securities, (ii) any Affiliate of the Stockholder that is a direct or indirect transferee of Registrable Securities from the Stockholder or any subsequent Holder and (iii) any direct or indirect transferee of transfer of not less than twenty percent (20%) of the initial number of Registrable Securities issued to the Stockholder at the closing of the Purchase Agreement from the Stockholder or any subsequent Holder.

 

Majority-in-Interest ” means Holders of more than fifty percent (50%) of the Registrable Securities.

 

Person ” means an individual, a partnership, a corporation, a limited liability company, an association, a joint stock company, a trust, a joint venture, an unincorporated organization or a governmental entity (or any department, agency or political subdivision thereof).

 

Registrable Securities ” means (i) the Purchased Shares and any other shares of Common Stock held by each Holder, whether on the date of this Agreement or thereafter, and (ii) any other shares of Common Stock issued or issuable with respect to the securities referred to in clause (i) by way of a stock dividend or stock split or in connection with an exchange or combination of shares, recapitalization, merger, consolidation or other reorganization; provided, however, that in the case of a Permitted Assignee, “Registrable Securities” shall not include any securities of the Company held by such Permitted Assignee that were not transferred to such Permitted Assignee in a Permitted Assignment.  For purposes of this Agreement, a Person shall be deemed to be a holder of Registrable Securities whenever such Person has the right to acquire such Registrable Securities (upon conversion or exercise, in connection with a transfer of securities or otherwise, but disregarding any restrictions or limitations upon the exercise of such right), whether or not such acquisition has actually been effected.  As to any particular Registrable Securities, such securities shall cease to be Registrable Securities when (A) a Registration Statement covering such securities has been declared effective by the Securities and Exchange Commission and such securities have been disposed of pursuant to such effective Registration Statement, (B) such securities are sold under circumstances in which all of the applicable conditions of Rule 144 (or any similar provisions then in force) under the Securities Act are met, (C) such securities are eligible for sale without registration pursuant to Rule 144 (or any similar provisions then in force) under the Securities Act without limitation thereunder on volume or manner of sale, (D) such securities are otherwise transferred and such securities may be resold without subsequent registration under the Securities Act, (E) such securities shall have ceased to be outstanding, or (F) the stock certificates or evidences of book-entry registration relating to such securities have had all restrictive legends removed.

 

15



 

Registration Statement ” means any registration statement of the Company which covers any of the Registrable Securities pursuant to the provisions of this Agreement, including the prospectus, amendments, and supplements to such Registration Statement, including post-effective amendments, all exhibits and all materials incorporated by reference in such Registration Statement.

 

Securities Act ” means the Securities Act of 1933, as amended from time to time, and the rules and regulations promulgated thereunder.

 

Securities and Exchange Commission ” means the United States Securities and Exchange Commission, and any governmental body or agency succeeding to the functions thereof.

 

11.                                Miscellaneous .

 

(a)                                  Remedies .  Each Party shall be entitled to enforce its rights under any provision of this Agreement specifically to recover damages caused by reason of any breach of any provision of this Agreement and to exercise all other rights granted by applicable law.  The Parties agree and acknowledge that money damages may not be an adequate remedy for any breach of the provisions of this Agreement and that any Party may, in its sole discretion, apply to any court of law or equity of competent jurisdiction (without posting any bond or other security) for specific performance and for other injunctive relief in order to enforce or prevent violation of the provisions of this Agreement.

 

(b)                                  Termination. All rights and obligations of the Company hereunder other than pursuant to Sections 5 and 7 hereof shall terminate on the date on which no Registrable Securities are outstanding.

 

(c)                                   Amendments and Waivers .  Except as otherwise provided herein, the provisions of this Agreement may be amended, modified or waived only upon the prior written consent of the Company, a Majority-in-Interest and any Holder that would be materially and disproportionately affected by such an amendment or waiver. Notwithstanding anything herein to the contrary, any amendment, modification or waiver prior to the 2017 Annual Meeting of Stockholders of the Company will require the prior written consent of a majority of the Continuing Directors, if any, on behalf of the Company. The failure of any party to enforce any of the provisions of this Agreement shall in no way be construed as a waiver of such provisions and shall not affect the right of such party thereafter to enforce each and every provision of this Agreement in accordance with its terms.

 

(d)                                  Assignment; No Third Party Beneficiaries .  This Agreement and the rights, duties and obligations of the Company hereunder may not be assigned or delegated by the Company in whole or in part. This Agreement and the rights, duties and obligations of the Holders hereunder may be freely assigned or delegated by such Holder in conjunction with and to the extent of (i) any transfer of Registrable Securities to any Affiliate of Stockholder, or (ii) any transfer of not less than twenty percent (20%) of the initial number of Registrable Securities

 

16



 

issued to the Stockholder at the closing (a “ Permitted Assignment ”) under the Purchase Agreement to any Person (such Person, a “ Permitted Assignee ”) (subject to any contractual obligation of such Holders to the contrary).  This Agreement and the provisions hereof shall be binding upon and shall inure to the benefit of each of the Parties and their respective permitted successors and assigns; provided, however, that no such transfer or assignment shall be binding upon or obligate the Company to any such assignee, and no such assignee shall be deemed a Holder hereunder, unless and until the Company shall have received written notice of such transfer or assignment as herein provided and a written agreement of the assignee to be bound by the provisions of this Agreement.  This Agreement is not intended to confer any rights or benefits on any Persons that are not party hereto other than as expressly set forth in Section 7 and this Section 11(d) .

 

(e)                                   Severability .  Whenever possible, each provision of this Agreement shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Agreement is held to be prohibited by or invalid under applicable law, such provision shall be ineffective only to the extent of such prohibition or invalidity, without invalidating the remainder of this Agreement.

 

(f)                                    Counterparts .  This Agreement may be executed in one or more counterparts, all of which shall be considered one and the same agreement and shall become effective when one or more counterparts have been signed by each Party to this Agreement and delivered to the other Party, it being understood that all Parties need not sign the same counterpart.  Signatures delivered by electronic methods shall have the same effect as signatures delivered in person.

 

(g)                                   Descriptive Headings .  The descriptive headings of this Agreement are inserted for convenience only and do not constitute a part of this Agreement.

 

(h)                                  Governing Law; Waiver of Jury Trial .  This Agreement shall be governed by and construed in accordance with the internal laws of New York applicable to parties residing in New York, without regard applicable principles of conflicts of law.  Each Party irrevocably consents to the exclusive jurisdiction of any court located within New York County, New York, in connection with any matter based upon or arising out of this Agreement or the matters contemplated hereby and it agrees that process may be served upon it in any manner authorized by the laws of the State of New York for such Persons and waives and covenants not to assert or plead any objection which it might otherwise have to such jurisdiction and such process.  EACH PARTY TO THIS AGREEMENT ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY ARISE UNDER THIS AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES, AND THEREFORE, IT HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.  EACH PARTY TO THIS AGREEMENT CERTIFIES AND ACKNOWLEDGES THAT (I) NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH

 

17



 

OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE EITHER OF SUCH WAIVERS, (II) IT UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF SUCH WAIVERS, (III) IT MAKES SUCH WAIVERS VOLUNTARILY, AND (IV) IT HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 12(h) .

 

(i)                                      Notices .  All notices and other communications hereunder shall be in writing and shall be deemed duly delivered: (i) upon receipt if delivered personally; (ii) three (3) Business Days after being mailed by registered or certified mail, postage prepaid, return receipt requested; (iii) one (1) Business Day after it is sent by commercial overnight courier service; or (iv) upon transmission if sent via facsimile or electronic mail with confirmation of receipt to the Parties to this Agreement at the addresses set forth in the Purchase Agreement (or at such other address for a Party as shall be specified upon like notice).

 

(j)                                     Rules of Construction .  The Parties agree that they have each been represented by counsel during the negotiation, preparation and execution of this Agreement (or, if executed following the date hereof by counterpart, have been provided with an opportunity to review the Agreement with counsel) and, therefore, waive the application of any law, regulation, holding or rule of construction providing that ambiguities in an agreement or other document will be construed against the Party drafting such agreement or document.

 

(k)                                  Interpretation .  This Agreement shall be construed in accordance with the following rules: (i) the terms defined in this Agreement include the plural as well as the singular; (ii) all references in the Agreement to designated “Sections” and other subdivisions are to the designated sections and other subdivisions of the body of this Agreement; (iii) pronouns of either gender or neuter shall include, as appropriate, the other pronoun forms; (iv) the words “herein,” “hereof” and “hereunder” and other words of similar import refer to this Agreement as a whole and not to any particular Section or other subdivision; and (v) the words “includes” and “including” are not limiting.

 

(l)                                      Language and Version .  This Agreement may be executed in both English and Chinese.  If any conflict or other inconsistency between the two language versions shall exist, the version written in English shall prevail.

 

[ Remainder of page intentionally left blank. Signature Pages Follow.

 

18



 

IN WITNESS WHEREOF, the Parties have executed this Registration Agreement on the date first above written.

 

 

COMPANY:

 

 

 

STR Holdings, Inc.

 

 

 

 

By:

/s/ Robert S. Yorgensen

 

Name:

Robert S. Yorgensen

 

Title:

President and Chief Executive Officer

 

 

 

 

 

 

 

STOCKHOLDER:

 

 

 

Zhen Fa New Energy (U.S.) Co., Ltd.

 

 

 

 

By:

/s/ Cindy Lin

 

Name:

Cindy Lin

 

Title:

President

 

19


Exhibit 99.1

 

 

STR HOLDINGS ANNOUNCES NEW BOARD OF DIRECTOR COMPOSITION

 

Enfield, Conn. — December 15, 2014 — STR Holdings, Inc. (NYSE: STRI) (“STR” or the “Company”) today announced that in connection with the closing of the previously announced transactions with Zhenfa Energy Group Co., Ltd. (“Zhenfa”), the Company increased the size of its board of directors from five to seven members and appointed four new directors: Andrew Africk, 48, Eugene Cha, 58, Qu Chao, 38, and Xin (Cindy) Lin, 42. Dennis L. Jilot and Robert M. Chiste have resigned from the board effective upon the closing of the Zhenfa transaction.

 

Messrs. Africk and Cha are each considered independent in accordance with the rules of The New York Stock Exchange, and Mr. Qu and Ms. Lin are affiliated with Zhenfa.

 

Andrew Africk is the founder of Searay Capital LLC, a private investment company. Mr. Africk established Searay Capital in July 2013 after 21 years leading private equity and capital markets investments for Apollo Global Management LLC, a leading global alternative asset manager with assets under management exceeding $150 billion.  As a Senior Partner at Apollo, Mr. Africk was responsible for investments in technology and communications and has over 22 years of experience financing, analyzing and investing in public and private companies. Mr. Africk also currently serves as a director of Alliqua Biomedical. In the last five years, Mr. Africk has served on the boards of directors for various public companies including Hughes Telematics, Inc. and Hughes Communications, Inc.

 

Eugene Cha currently serves as Chairman of CPY Financial Factoring Co., Ltd. and as a non-executive director of Core Pacific Yamaichi Securities (HK) Co., Ltd.  Mr. Cha also serves as an independent director at Founder Fubon Fund Management Co., Ltd., and as an external supervisor at Xiamen Bank. From 1984 to 2006, Mr. Cha was a partner with the international law firm Cha & Cha LLP and focused his practice on international corporate finance and mergers and acquisitions.  Mr. Cha has also served as an independent director at Dacheng Fund Management Co., Ltd and as Vice Chairman of the YouChange PuRong Information Technology, Ltd. and two financial companies designed to increase access to microfinance for millions of poor farmers in rural China.  Mr. Cha has been a director and past president of the Chinese American Political Action Association in New York and also served as a Member of the National Assembly, Taiwan from 1992 until 1996.

 

Qu Chao has served as the General Manager of Zhenfa Chongqing Overseas Investment Co., Ltd., Vice General Manager of Zhenfa and Vice President of Zhenfa and its affiliated entities (together, the “Zhenfa Group”) since January 2014, where he manages the companies and focuses on finance management, investment and overseas business. Since 2012, Mr. Qu has served in a number of capacities with the Zhenfa Group, including as Chairman Assistant and Director of Finance & Investment Department of Zhenfa, and Director,

 



 

Vice General Manager, and Chief Financial Officer of Zhenfa. As one of the founders of Zhenfa, Mr. Qu developed the electricity investment business for Zhenfa and also was responsible for Zhenfa’s strategic relationship with First Solar.  Prior to joining the Zhenfa Group, Mr. Qu served as Chief Financial Officer at CECEP (Jiangyin) Low Carbon Economy & Technology Development Co., Ltd., and China Energy Conservation and Environmental Protection Investment (Wuxi) Co., Ltd.  Mr. Qu also has auditing experience in China, having worked as Senior Project Manager (responsible for assisting a public company) in Beijing Xinghua Certified Public Accountants Co., Ltd.

 

Xin (Cindy) Lin is currently President of Zhen Fa New Energy (U.S.) Co., Ltd., having served in this capacity since April 2013, and is responsible for leading Zhenfa’s activities in the U.S., including investment and acquisitions.  Ms. Lin has also worked at Medtronic IT since August 2001, where she currently serves as senior principal IT developer, with a primary focus in business intelligence, data management and data analytics. In 2006, Ms. Lin founded L&B International LLC, a consulting firm focusing on providing consulting services in the area of renewable energy development, and is currently its President. Ms. Lin previously worked at the Bank of China in Beijing, China, where she was responsible for international trade settlement and financial instruments for export and import companies.

 

In addition to the new director appointments, Robert S. Yorgensen, the Company’s President and Chief Executive Officer, has been appointed as Chairman of the Board and will continue as President and CEO.

 

Mr. Yorgensen stated, “I am confident that the skillsets of our new directors will be highly complementary to those of our continuing directors and that our board will continue to have the requisite experience to carry out our fiduciary duties to our shareholders from day one, as well as the deep and varied business acumen to foster growth and value creation for the Company.”

 

John J. Janitz and Andrew M. Leitch will continue to serve in their current capacities as independent directors.  Mr. Janitz will continue to chair the compensation committee and will also chair the nominating and corporate governance committee, while Mr. Leitch will continue to chair the audit committee and together they will comprise the newly created special committee of continuing directors.

 

Mr. Yorgensen commented, “On behalf of our board and all of our employees, I would like to extend our sincere appreciation and gratitude to Den Jilot and Bob Chiste for their contributions to STR and its shareholders. Den’s leadership will forever be embedded in the culture of STR through his 18 years of dedicated service as our former CEO and Chairman.  Den has been a terrific leader, mentor and advisor and I am personally grateful for having had the opportunity to work closely with him.”

 

Mr. Yorgensen continued, “Bob Chiste has been an invaluable contributor to the board since joining in 2010 and played a pivotal role in our successful search for strategic alternatives.  Bob’s experience as a former public company CEO brought a unique and valuable perspective to our board and senior management team and it’s been a pleasure to have worked with him.”

 



 

About STR Holdings, Inc.

 

STR Holdings, Inc. is a provider of encapsulants to the photovoltaic module industry. Further information about STR Holdings, Inc. can be obtained via the Company’s website at www.strsolar.com.

 

Forward-Looking Statements

 

This press release and any oral statement made in respect of the information in this press release contain forward-looking statements within the meaning of the Private Securities Litigation Reform Act of 1995. Such statements are subject to inherent risks and uncertainties, including statements about STR’s and Zhenfa’s plans, objectives, expectations and intentions. Such statements include, without limitation, statements about the anticipated benefits and opportunities provided by the transaction and our relationship with Zhenfa, and other statements that are not historical fact. We cannot assure that we will benefit from our association and agreements with Zhenfa, or that we will be able to achieve growth or profitability.   Forward-looking statements may contain such words as “may,” “could, “expect,” “intend,” “plan,” “seek,” “anticipate,” “believe,” “estimate,” “predict,” “potential,” or “continue” or the negative of these terms or other comparable terminology, and include assumptions that underlie such statements. These forward-looking statements are subject to known and unknown risks and uncertainties that could cause actual results to differ materially from those expressed or implied by such statements, including, but not limited to: the ability to realize synergies from the proposed transaction; operational challenges in achieving strategic objectives and executing our plans; the risk that markets do not evolve as anticipated; the potential impact of the general economic conditions and other economic, business and/or competitive factors. The risks included are not exhaustive. Other factors that could adversely affect the transaction and our business and prospects is described under “Risk Factors” and “Management’s Discussion and Analysis of Financial Condition and Results of Operations” and in subsequent periodic reports on Form 10-K, 10-Q and 8-K, as well as the proxy statement filed by STR to solicit the approval of the transaction, which contains and identifies other important factors that could cause actual results to differ materially from those contained in any projections or forward-looking statements.

 

Company Contact:

 

STR Holdings, Inc .

Joseph C. Radziewicz

Vice President and Chief Financial Officer

+1 (860) 265-1247

joseph.radziewicz@strholdings.com

 


Exhibit 99.2

 

 

STR HOLDINGS CLOSES SALE OF CONTROLLING INTEREST TO ZHENFA ENERGY GROUP AND DECLARES SPECIAL DIVIDEND

 

Zhenfa Energy to Strengthen STR Position in China —

Special Cash Dividend of $0.85 per Share to be paid on 1/2/15 —

 

Enfield, Conn. — December 15, 2014 — STR Holdings, Inc. (NYSE: STRI) (“STR” or the “Company”) today announced that it sold approximately 27.6 million newly issued shares of common stock, representing a 51% interest in STR, for an aggregate purchase price of approximately $21.7 million to Zhen Fa New Energy (U.S.) Co., Ltd. (“Zhenfa”).  As part of the transaction, the STR Board of Directors declared a special cash dividend of $0.85 per share payable to stockholders of record, excluding Zhenfa, as of December 26, 2014.  The dividend payment date is January 2, 2015 and the ex-dividend date is January 5, 2015.

 

“This is a very exciting day for STR and its shareholders.  Today we shift our focus from closing the transaction to opening new opportunities created by the synergy between STR and Zhenfa.  As one of the top solar engineering, procurement and construction companies in China, and a leading solar independent power producer as well, Zhenfa is ideally positioned to directly benefit from the use of STR’s market-leading encapsulant technology and also to advocate its use to Chinese module manufacturers.  Zhenfa’s substantial investment reflects their confidence in STR’s ability to become profitable and grow in the rapidly expanding solar industry,” stated Robert S. Yorgensen, STR’s President and Chief Executive Officer.

 

In addition to expected improvements to its encapsulant business, the Company will explore other potential strategic opportunities together with Zhenfa.

 

Zha Zhengfa, founder and Chairman of Zhenfa’s parent corporation, stated: “We have a great deal of respect for STR as a pioneer in solar encapsulants and as a company that continues to innovate important new technology.  We will work together with them to raise their profile among Chinese module manufacturers and expect to use solar modules incorporating STR’s encapsulants in our own solar power stations to protect our long-term economic interests.  We see many opportunities for collaboration with STR and will give them our full support to grow the Company for the benefit of all shareholders.”

 

About Zhenfa Energy Group Co., LTD.

 

Jiangsu Zhenfa Holding Group Co., Ltd., the parent of Zhenfa, was founded in 2004, and Zhenfa Energy Group was founded in 2012.  Zhenfa is a technologically advanced enterprise specializing in photovoltaic power generation system integration.  Zhenfa’s mission is to promote an environmentally friendly alternative to energy generation in the effort to mitigate climate change across the globe.  The company is one of the first energy-conservation

 



 

service enterprises verified and filed by National Development and Reform Commission in China.  Zhenfa is committed to delivering high quality and affordability in solar PV installations.  Further information about Zhenfa and its affiliated companies can be obtained via its website at www.zhenfa.com.

 

About STR Holdings, Inc.

 

STR Holdings, Inc. is a provider of encapsulants to the photovoltaic module industry. Further information about STR Holdings, Inc. can be obtained via the Company’s website at www.strsolar.com.

 

Forward-Looking Statements

 

This press release and any oral statement made in respect of the information in this press release contain forward-looking statements within the meaning of the Private Securities Litigation Reform Act of 1995. Such statements are subject to inherent risks and uncertainties, including statements about STR’s and Zhenfa’s plans, objectives, expectations and intentions. Such statements include, without limitation, statements about the anticipated benefits and opportunities provided by the transaction and our relationship with Zhenfa, and other statements that are not historical fact. We cannot assure that we will benefit from our association and agreements with Zhenfa, or that we will be able to achieve growth or profitability.   Forward-looking statements may contain such words as “may,” “could, “expect,” “intend,” “plan,” “seek,” “anticipate,” “believe,” “estimate,” “predict,” “potential,” or “continue” or the negative of these terms or other comparable terminology, and include assumptions that underlie such statements. These forward-looking statements are subject to known and unknown risks and uncertainties that could cause actual results to differ materially from those expressed or implied by such statements, including, but not limited to: the ability to realize synergies from the proposed transaction; operational challenges in achieving strategic objectives and executing our plans; the risk that markets do not evolve as anticipated; the potential impact of the general economic conditions and other economic, business and/or competitive factors. The risks included are not exhaustive. Other factors that could adversely affect the transaction and our business and prospects is described under “Risk Factors” and “Management’s Discussion and Analysis of Financial Condition and Results of Operations” and in subsequent periodic reports on Form 10-K, 10-Q and 8-K, as well as the proxy statement filed by STR to solicit the approval of the transaction, which contains and identifies other important factors that could cause actual results to differ materially from those contained in any projections or forward-looking statements.

 

Company Contact:

STR Holdings, Inc .

Joseph C. Radziewicz

Vice President and Chief Financial Officer

+1 (860) 265-1247

joseph.radziewicz@strholdings.com