EXHIBIT 5
FORM OF
REGISTRATION RIGHTS AGREEMENT
This REGISTRATION RIGHTS AGREEMENT is made and entered into as of
_________ ___, 2002 between the investor or investors signatory
hereto (each an "Investor" and together the "Investors") and
Superconductor Technologies Inc., a Delaware corporation (the
"Company") with reference to the following facts:
A. Simultaneously with the execution and delivery of this
Agreement, the Investors are purchasing from the Company, pursuant
to a Securities Purchase Agreement dated the date hereof (the
"Purchase Agreement"), up to (i) an aggregate of ___________ shares
(the "Shares") of the Company's common stock, par value $0.001 per
share ("Common Stock"), and stock purchase warrants ("Warrants") to
purchase up to ________ additional shares of Common Stock (the
"Warrant Shares") (terms not defined herein shall have the meanings
ascribed to them in the Purchase Agreement).
B. The Company desires to grant to the Investors the
registration rights set forth herein with respect to the Common
Stock purchased pursuant to the Purchase Agreement and the Warrant
Shares (hereinafter referred to as the "Stock" or "Securities" of
the Company).
NOW, THEREFORE, the parties hereto mutually agree as follows:
1. Registrable Securities. As
used herein the term "Registrable Security"
means the Securities until (i) the
Registration Statement has been declared
effective by the Commission, and all
Securities have been disposed of pursuant to
the Registration Statement, (ii) all
Securities have been sold under
circumstances under which all of the
applicable conditions of Rule 144 ("Rule
144") (or any similar provision then in
force) under the Securities Act of 1933, as
amended (the "Securities Act") are met,
(iii) all Securities have been otherwise
transferred to holders who may trade such
Securities without restriction under the
Securities Act, and the Company has
delivered a new certificate or other
evidence of ownership for such Securities
not bearing a restrictive legend or (iv)
such time as, in the opinion of counsel to
the Company, all Securities may be sold
without any time, volume or manner
limitations pursuant to Rule 144(k) (or any
similar provision then in effect) under the
Securities Act. The term "Registrable
Securities" means any and/or all of the
securities falling within the foregoing
definition of a "Registrable Security." In
the event of any merger, reorganization,
consolidation, recapitalization or other
change in corporate structure affecting the
Common Stock, such adjustment shall be
deemed to be made in the definition of
"Registrable Security" as is appropriate in
order to prevent any dilution or enlargement
of the rights granted pursuant to this
Agreement.
2. Restrictions on Transfer.
Each Investor acknowledges and understands
that prior to the registration of the
Securities as provided herein, the
Securities are "restricted securities" as
defined in Rule 144 promulgated under the
Securities Act. Each Investor understands
that no disposition or transfer of the
Securities may be made by Investor in the
absence of (i) an opinion of counsel to the
Investor, in form and substance reasonably
satisfactory to the Company, that such
transfer may be made without registration
under the Securities Act or (ii) such
registration.
With a view to making available to the Investors the
benefits of Rule 144 under the Securities Act or any
other similar rule or regulation of the Commission
that may at any time permit the Investors to sell
securities of the Company to the public without
registration ("Rule 144"), the Company agrees to:
(a) comply with the provisions of paragraph
(c)(1) of Rule 144; and
(b) file with the Commission in a timely
manner all reports and other documents required to be
filed with the Commission pursuant to Section 13 or
15(d) under the Exchange Act by companies subject to
either of such sections, irrespective of whether the
Company is then subject to such reporting requirements.
3. Registration Rights With
Respect to the Securities.
3.1 The Company agrees
that it will prepare and file with the
Securities and Exchange Commission
("Commission"), within thirty (30) days
after the Closing Date a registration
statement (on Form S-3, or other appropriate
registration statement form) under the
Securities Act (the "Registration
Statement"), at the sole expense of the
Company (except as provided in Section 3.3
hereof), in respect of the Investors, so as
to permit a public offering and resale of
the Securities under the Act by the
Investors as selling stockholders and not as
underwriters. The Company shall use its
best efforts to cause such Registration
Statement to become effective within ninety
(90) days from the Closing Date. The number
of shares designated in the Registration
Statement to be registered shall include the
Shares and Warrant Shares. The Company will
notify the Investors of the effectiveness of
the Registration Statement within one
Trading Day of such event.
3.2 The Company will
maintain the Registration Statement or
post-effective amendment filed under this
Section 3 effective under the Securities Act
until the earlier of (i) the date that none
of the Securities covered by such
Registration Statement are or may become
issued and outstanding, (ii) the date that
all of the Securities have been sold
pursuant to such Registration Statement,
(iii) the date the Investors receive an
opinion of counsel to the Company that the
Securities may be sold under the provisions
of Rule 144 without limitation as to volume,
(iv) all Securities have been otherwise
transferred to persons who may trade such
shares without restriction under the
Securities Act, and the Company has
delivered a new certificate or other
evidence of ownership for such securities
not bearing a restrictive legend, or (v) all
Securities may be sold without any time,
volume or manner limitations pursuant to
Rule 144(k) or any similar provision then in
effect under the Securities Act in the
opinion of counsel to the Company (the
"Effectiveness Period").
3.3 All fees,
disbursements and out-of-pocket expenses and
costs incurred by the Company in connection
with the preparation and filing of the
Registration Statement under subparagraph
3.1 and in complying with applicable
securities and Blue Sky laws (including,
without limitation, all attorneys' fees of
the Company) shall be borne by the Company.
The Investors shall bear the cost of
underwriting and/or brokerage discounts,
fees and commissions, if any, applicable to
the Securities being registered and the fees
and expenses of their counsel. The
Investors and their counsel shall have a
reasonable period, not to exceed five (5)
trading days, to review the proposed
Registration Statement or any amendment
thereto, prior to filing with the
Commission, and the Company shall upon
request provide each Investor with copies of
any comment letters received from the
Commission with respect thereto within two
(2) trading days of receipt thereof. The
Company shall qualify any of the Securities
for sale in such states as any Investor
reasonably designates and shall furnish
indemnification in the manner provided in
Section 6 hereof. However, the Company
shall not be required to qualify in any
state which will require an escrow or other
restriction relating to the Company and/or
the sellers, or which will require the
Company to qualify to do business in such
state or require the Company to file therein
any general consent to service of process.
The Company at its expense will supply the
Investors with copies of the applicable
Registration Statement and the prospectus
included therein and other related documents
in such quantities as may be reasonably
requested by the Investors.
3.4 The Company shall
not be required by this Section 3 to include
any Investor's Securities in any
Registration Statement which is to be filed
if, in the opinion of counsel to the
Company, the proposed offering or other
transfer as to which such registration is
requested is exempt from applicable federal
and state securities laws and would result
in all Investors or transferees obtaining
securities which are not "restricted
securities" as defined in Rule 144 under the
Securities Act.
3.5 In the event that
the Registration Statement to be filed by
the Company pursuant to Section 3.1 above is
not declared effective by the Commission
within ninety (90) days from the Closing
Date (a "Registration Default"), then the
Company will pay each Investor as liquidated
damages for such failure and not as a
penalty five percent (5%) of the Purchase
Price ("Liquidated Damages Amount"). If the
Registration Statement is not declared
effective by the Commission within one
hundred twenty (120) days of Closing, then
the Company shall pay each Investor a second
Liquidated Damages Amount. Such payment of
the liquidated damages shall be made to the
Investors in cash, within five (5) calendar
days of demand; provided, however, that the
payment of such liquidated damages shall not
relieve the Company from its obligations to
register the Securities pursuant to this
Section. If the Company does not remit the
payment to the Investors as set forth above,
the Company will pay the Investors
reasonable costs of collection, including
attorneys' fees, in addition to the
liquidated damages. The registration of the
Securities pursuant to this provision shall
not affect or limit the Investors' other
rights or remedies as set forth in this
Agreement.
3.6 No provision
contained herein shall preclude the Company
from selling securities pursuant to any
Registration Statement in which it is
required to include Securities pursuant to
this Section 3.
3.7 If at any time or
from time to time after the effective date
of any Registration Statement, the Company
notifies the Investors in writing of the
existence of a Potential Material Event (as
defined in Section 3.8 below), the Investors
shall not offer or sell any Securities or
engage in any other transaction involving or
relating to Securities, from the time of the
giving of notice with respect to a Potential
Material Event until the Investors receive
written notice from the Company that such
Potential Material Event either has been
disclosed to the public or no longer
constitutes a Potential Material Event;
provided, however, that the Company may not
so suspend the right to such holders of
Securities for more than thirty (30) days in
the aggregate (90 days in the case of an
acquisition requiring the filing of audited
financial statements of the acquired
business under Form 8-K) during any twelve
month period, during the period the
Registration Statement is required to be in
effect. The Company must, if lawful, give
the Investors notice in writing at least two
(2) trading days prior to the first day of
the blackout period.
3.8 "Potential
Material Event" means any of the following:
(a) the possession by the Company of
material information not ripe for disclosure
in a registration statement, as determined
in good faith by the Chief Executive Officer
or the Board of Directors of the Company
that disclosure of such information in a
Registration Statement would be detrimental
to the business and affairs of the Company;
or (b) any material engagement or activity
by the Company which would, in the good
faith determination of the Chief Executive
Officer or the Board of Directors of the
Company, be adversely affected by disclosure
in a registration statement at such time.
4. Cooperation with Company.
The Investors will cooperate with the
Company in all respects in connection with
this Agreement, including timely supplying
all information and confirmations reasonably
requested by the Company or the Commission
(which shall include all information
regarding the Investors and proposed manner
of sale of the Registrable Securities
required to be disclosed in any Registration
Statement) and executing and returning all
documents reasonably requested in connection
with the registration and sale of the
Registrable Securities and entering into and
performing their obligations under any
underwriting agreement, if the offering is
an underwritten offering, in usual and
customary form, with the managing
underwriter or underwriters of such
underwritten offering. Nothing in this
Agreement shall obligate any Investor to
consent to be named as an underwriter in any
Registration Statement. The obligation of
the Company to register the Registrable
Securities shall be absolute and
unconditional as to those Securities which
the Commission will permit to be registered
without naming the Investors as
underwriters. Any delay or delays caused by
the Investors by failure to cooperate as
required hereunder shall not constitute a
Registration Default.
5. Registration Procedures.
If and whenever the Company is required by
any of the provisions of this Agreement to
effect the registration of any of the
Registrable Securities under the Act, the
Company shall (except as otherwise provided
in this Agreement), as expeditiously as
possible, subject to the Investors'
assistance and cooperation as reasonably
required with respect to each Registration
Statement:
5.1 (a) prepare and
file with the Commission such amendments and
supplements to the Registration Statement
and the prospectus used in connection
therewith as may be necessary to keep such
Registration Statement effective and to
comply with the provisions of the Securities
Act with respect to the sale or other
disposition of all securities covered by
such registration statement whenever the
Investors shall desire to sell or otherwise
dispose of the same (including prospectus
supplements with respect to the sales of
securities from time to time in connection
with a registration statement pursuant to
Rule 415 promulgated under the Securities
Act) and (b) take all lawful action such
that each of (A) the Registration Statement
and any amendment thereto does not, when it
becomes effective, contain an untrue
statement of a material fact or omit to
state a material fact required to be stated
therein or necessary to make the statements
therein, in light of the circumstances under
which they were made, not misleading and (B)
the prospectus forming part of the
Registration Statement, and any amendment or
supplement thereto, does not at any time
during the Effectiveness Period include an
untrue statement of a material fact or omit
to state a material fact required to be
stated therein or necessary to make the
statements therein, in light of the
circumstances under which they were made,
not misleading;
5.2 (a) prior to the
filing with the Commission of any
Registration Statement (including any
amendments thereto) and the distribution or
delivery of any prospectus (including any
supplements thereto), provide draft copies
thereof to the Investors as required by
Section 3.3 and reflect in such documents
all such comments as the Investors (and
their counsel) reasonably may propose
respecting the Selling Shareholders and Plan
of Distribution sections (or equivalents)
and (b) furnish to each Investor such
numbers of copies of a prospectus including
a preliminary prospectus or any amendment or
supplement to any prospectus, as applicable,
in conformity with the requirements of the
Act, and such other documents, as such
Investor may reasonably request in order to
facilitate the public sale or other
disposition of the securities owned by such
Investor;
5.3 register and
qualify the Registrable Securities covered
by the Registration Statement under such
other securities or blue sky laws of such
jurisdictions as the Investors shall
reasonably request (subject to the
limitations set forth in Section 3.3 above),
and do any and all other acts and things
which may be necessary or advisable to
enable each Investor to consummate the
public sale or other disposition in such
jurisdiction of the securities owned by such
Investor;
5.4 list such
Registrable Securities on the Principal
Market, if the listing of such Registrable
Securities is then permitted under the rules
of such Principal Market;
5.5 notify each
Investor at any time when a prospectus
relating thereto covered by the Registration
Statement is required to be delivered under
the Securities Act, of the happening of any
event of which it has knowledge as a result
of which the prospectus included in the
Registration Statement, as then in effect,
includes an untrue statement of a material
fact or omits to state a material fact
required to be stated therein or necessary
to make the statements therein not
misleading in the light of the circumstances
then existing, and the Company shall use its
best efforts to prepare and file a curative
amendment under Section 5.1;
5.6 as promptly as
practicable after becoming aware of such
event, notify each Investor who holds
Registrable Securities being sold (or, in
the event of an underwritten offering, the
managing underwriters) of the issuance by
the Commission of any stop order or other
suspension of the effectiveness of the
Registration Statement at the earliest
possible time and take all lawful action to
effect the withdrawal, recession or removal
of such stop order or other suspension;
5.7 cooperate with the
Investors to facilitate the timely
preparation and delivery of certificates for
the Registrable Securities to be offered
pursuant to the Registration Statement and
enable such certificates for the Registrable
Securities to be in such denominations or
amounts, as the case may be, as the
Investors reasonably may request and
registered in such names as the Investors
may request; and, within five (5) trading
days after a Registration Statement which
includes Registrable Securities is declared
effective by the Commission, deliver and
cause legal counsel selected by the Company
to deliver to the transfer agent for the
Registrable Securities (with copies to the
Investors) an appropriate instruction and,
to the extent necessary, an opinion of such
counsel;
5.8 take all such
other lawful actions reasonably necessary to
expedite and facilitate the disposition by
the Investors of their Registrable
Securities in accordance with the intended
methods therefor provided in the prospectus
which are customary for issuers to perform
under the circumstances;
5.9 in the event of an
underwritten offering, promptly include or
incorporate in a prospectus supplement or
post-effective amendment to the Registration
Statement such information as the managers
reasonably agree should be included therein
and to which the Company does not reasonably
object and make all required filings of such
prospectus supplement or post-effective
amendment as soon as practicable after it is
notified of the matters to be included or
incorporated in such Prospectus supplement
or post-effective amendment; and
5.10 maintain a
transfer agent and registrar for its Common
Stock.
6. Indemnification.
6.1 To the maximum
extent permitted by law, the Company agrees
to indemnify and hold harmless the Investors
and each person, if any, who controls an
Investor within the meaning of the
Securities Act (each a "Distributing
Investor") against any losses, claims,
damages or liabilities, joint or several
(which shall, for all purposes of this
Agreement, include, but not be limited to,
all reasonable costs of defense and
investigation and all reasonable attorneys'
fees and expenses), to which the
Distributing Investor may become subject,
under the Securities Act or otherwise,
insofar as such losses, claims, damages or
liabilities (or actions in respect thereof)
arise out of or are based upon any untrue
statement or alleged untrue statement of any
material fact contained in any Registration
Statement, or any related final prospectus
or amendment or supplement thereto, or arise
out of or are based upon the omission or
alleged omission to state therein a material
fact required to be stated therein or
necessary to make the statements therein not
misleading; provided, however, that the
Company will not be liable in any such case
to the extent, and only to the extent, that
any such loss, claim, damage or liability
arises out of or is based upon an untrue
statement or alleged untrue statement or
omission or alleged omission made in such
Registration Statement, preliminary
prospectus, final prospectus or amendment
or supplement thereto in reliance upon, and
in conformity with, written information
furnished to the Company by the Distributing
Investor, its counsel, affiliates or any
underwriter, specifically for use in the
preparation thereof. This indemnity
agreement will be in addition to any
liability which the Company may otherwise
have.
6.2 To the maximum
extent permitted by law, each Distributing
Investor agrees that it will indemnify and
hold harmless the Company, and each officer
and director of the Company or person, if
any, who controls the Company within the
meaning of the Securities Act, against any
losses, claims, damages or liabilities
(which shall, for all purposes of this
Agreement, include, but not be limited to,
all reasonable costs of defense and
investigation and all reasonable attorneys'
fees and expenses) to which the Company or
any such officer, director or controlling
person may become subject under the
Securities Act or otherwise, insofar as such
losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or
are based upon any untrue statement or
alleged untrue statement of any material
fact contained in any Registration
Statement, or any related final prospectus
or amendment or supplement thereto, or arise
out of or are based upon the omission or the
alleged omission to state therein a material
fact required to be stated therein or
necessary to make the statements therein not
misleading, but in each case only to the
extent that such untrue statement or alleged
untrue statement or omission or alleged
omission was made in such Registration
Statement, final prospectus or amendment or
supplement thereto in reliance upon, and in
conformity with, written information
furnished to the Company by such
Distributing Investor, its counsel,
affiliates or any underwriter, specifically
for use in the preparation thereof. In no
event shall the liability of an Investor be
greater in amount than the dollar amount of
the proceeds (net of all expense paid by
such Investor and the amount of any damages
such holder has otherwise been required to
pay by reason of such untrue statement or
omission) received by such Investor upon the
sale of the Securities included in the
Registration Statement giving rise to such
indemnification obligation. This indemnity
agreement will be in addition to any
liability which the Distributing Investor
may otherwise have.
6.3 Promptly after
receipt by an indemnified party under this
Section 6 of notice of the commencement of
any action against such indemnified party,
such indemnified party will, if a claim in
respect thereof is to be made against the
indemnifying party under this Section 6,
notify the indemnifying party in writing of
the commencement thereof; but the omission
to so notify the indemnifying party will not
relieve the indemnifying party from any
liability which it may have to any
indemnified party except to the extent the
failure of the indemnified party to provide
such written notification actually
prejudices the ability of the indemnifying
party to defend such action. In case any
such action is brought against any
indemnified party, and it notifies the
indemnifying party of the commencement
thereof, the indemnifying party will be
entitled to participate in, and, to the
extent that it may wish, jointly with any
other indemnifying party similarly notified,
assume the defense thereof, subject to the
provisions herein stated and after notice
from the indemnifying party to such
indemnified party of its election so to
assume the defense thereof, the indemnifying
party will not be liable to such indemnified
party under this Section 6 for any legal or
other expenses subsequently incurred by such
indemnified party in connection with the
defense thereof other than reasonable costs
of investigation, unless the indemnifying
party shall not pursue the action to its
final conclusion. The indemnified parties
as a group shall have the right to employ
one separate counsel in any such action and
to participate in the defense thereof, but
the fees and expenses of such counsel shall
not be at the expense of the indemnifying
party if the indemnifying party has assumed
the defense of the action with counsel
reasonably satisfactory to the indemnified
party unless (i) the employment of such
counsel has been specifically authorized in
writing by the indemnifying party, or (ii)
the named parties to any such action
(including any impleaded parties) include
both the indemnified party and the
indemnifying party and the indemnified party
shall have been advised by its counsel that
there may be one or more legal defenses
available to the indemnifying party
different from or in conflict with any legal
defenses which may be available to the
indemnified party or any other indemnified
party (in which case the indemnifying party
shall not have the right to assume the
defense of such action on behalf of such
indemnified party, it being understood,
however, that the indemnifying party shall,
in connection with any one such action or
separate but substantially similar or
related actions in the same jurisdiction
arising out of the same general allegations
or circumstances, be liable only for the
reasonable fees and expenses of one separate
firm of attorneys for the indemnified party,
which firm shall be designated in writing by
the indemnified party). No settlement of
any action against an indemnified party
shall be made without the prior written
consent of the indemnified party, which
consent shall not be unreasonably withheld
so long as such settlement includes a full
release of claims against the indemnified
party.
7. Contribution. In order to
provide for just and equitable contribution
under the Securities Act in any case in
which (i) the indemnified party makes a
claim for indemnification pursuant to
Section 6 hereof but is judicially
determined (by the entry of a final judgment
or decree by a court of competent
jurisdiction and the expiration of time to
appeal or the denial of the last right of
appeal) that such indemnification may not be
enforced in such case notwithstanding the
fact that the express provisions of Section
6 hereof provide for indemnification in such
case, or (ii) contribution under the
Securities Act may be required on the part
of any indemnified party, then the Company
and the applicable Distributing Investor
shall contribute to the aggregate losses,
claims, damages or liabilities to which they
may be subject (which shall, for all
purposes of this Agreement, include, but not
be limited to, all reasonable costs of
defense and investigation and all reasonable
attorneys' fees and expenses), in either
such case (after contribution from others)
on the basis of relative fault as well as
any other relevant equitable considerations.
The relative fault shall be determined by
reference to, among other things, whether
the untrue or alleged untrue statement of a
material fact or the omission or alleged
omission to state a material fact relates to
information supplied by the Company on the
one hand or the applicable Distributing
Investor on the other hand, and the parties'
relative intent, knowledge, access to
information and opportunity to correct or
prevent such statement or omission. The
Company and the Distributing Investor agree
that it would not be just and equitable if
contribution pursuant to this Section 7 were
determined by pro rata allocation or by any
other method of allocation which does not
take account of the equitable considerations
referred to in this Section 7. The amount
paid or payable by an indemnified party as a
result of the losses, claims, damages or
liabilities (or actions in respect thereof)
referred to above in this Section 7 shall be
deemed to include any legal or other
expenses reasonably incurred by such
indemnified party in connection with
investigating or defending any such action
or claim. No person guilty of fraudulent
misrepresentation (within the meaning of
Section 11(f) of the Securities Act) shall
be entitled to contribution from any person
who was not guilty of such fraudulent
misrepresentation.
Notwithstanding any other provision of this Section 7,
in no event shall any (i) Investor be required to
undertake liability to any person under this Section 7
for any amounts in excess of the dollar amount of the
proceeds received by such Investor from the sale of
such Investor's Registrable Securities (after
deducting any fees, discounts and commissions
applicable thereto) pursuant to any Registration
Statement under which such Registrable Securities are
registered under the Securities Act.
8. Notices. All notices,
demands, requests, consents, approvals, and
other communications required or permitted
hereunder shall be in writing and, unless
otherwise specified herein, shall be (i)
hand delivered, (ii) deposited in the mail,
registered or certified, return receipt
requested, postage prepaid, (iii) delivered
by reputable air courier service with
charges prepaid, or (iv) transmitted by
facsimile, addressed as set forth in the
Purchase Agreement or to such other address
as such party shall have specified most
recently by written notice. Any notice or
other communication required or permitted to
be given hereunder shall be deemed effective
(a) upon hand delivery or delivery by
facsimile, with accurate confirmation
generated by the transmitting facsimile
machine, at the address or number designated
in the Purchase Agreement (if delivered on a
business day during normal business hours
where such notice is to be received), or the
first business day following such delivery
(if delivered other than on a business day
during normal business hours where such
notice is to be received) or (b) on the
first business day following the date of
sending by reputable courier service, fully
prepaid, addressed to such address, or (c)
upon actual receipt of such mailing, if
mailed. Either party hereto may from time
to time change its address or facsimile
number for notices under this Section 8 by
giving at least ten (10) days' prior written
notice of such changed address or facsimile
number to the other party hereto.
9. Assignment. This Agreement
is binding upon and inures to the benefit of
the parties hereto and their respective
heirs, successors and permitted assigns.
The rights granted the Investors under this
Agreement may be assigned to any purchaser
of substantially all of the Registrable
Securities (or the rights thereto) from an
Investor, as otherwise permitted by the
Purchase Agreement.
10. Determinations. Except as
otherwise expressly provided herein, all
consents, approvals and other determinations
(other than amendments to the terms and
provisions of this Agreement) to be made by
the Investors pursuant to this Agreement and
all waivers and amendments to or of any
provisions in this Agreement after the
Closing Date shall be made by Investors
(excluding Investors who are affiliates of
the Company) that have invested more than
fifty percent (50%) of the aggregate
Investment Amounts invested by all Investors
(excluding Investors who are affiliates of
the Company).
11. Counterparts/Facsimile.
This Agreement may be executed in two or
more counterparts, each of which shall
constitute an original, but all of which,
when together shall constitute but one and
the same instrument, and shall become
effective when one or more counterparts have
been signed by each party hereto and
delivered to the other parties. In lieu of
the original, a facsimile transmission or
copy of the original shall be as effective
and enforceable as the original.
12. Remedies. The remedies
provided in this Agreement are cumulative
and not exclusive of any remedies provided
by law. If any term, provision, covenant or
restriction of this Agreement is held by a
court of competent jurisdiction to be
invalid, illegal, void or unenforceable, the
remainder of the terms, provisions,
covenants and restrictions set forth herein
shall remain in full force and effect and
shall in no way be affected, impaired or
invalidated, and the parties hereto shall
use their best efforts to find and employ an
alternative means to achieve the same or
substantially the same result as that
contemplated by such term, provision,
covenant or restriction.
13. Conflicting Agreements.
The Company shall not enter into any
agreement with respect to its securities
that is inconsistent with the rights granted
to the holders of Registrable Securities in
this Agreement or otherwise prevents the
Company from complying with all of its
obligations hereunder.
14. Headings. The headings in
this Agreement are for reference purposes
only and shall not affect in any way the
meaning or interpretation of this Agreement.
15. Governing Law. This
Agreement shall be governed by and construed
in accordance with the laws of the State of
Delaware applicable to agreements made and
to be performed in the State of Delaware
(without regard to principles of conflict of
laws). Both parties irrevocably consent to
the exclusive jurisdiction of the United
States federal courts and the state courts
located in Delaware with respect to any suit
or proceeding based on or arising under this
Agreement, the agreements entered into in
connection herewith or the transactions
contemplated hereby or thereby and
irrevocably agree that all claims in respect
of such suit or proceeding may be determined
in such courts. The Company and each
Purchaser irrevocably waives the defense of
an inconvenient forum to the maintenance of
such suit or proceeding. The Company and
each Purchaser further agrees that service
of process upon a party mailed by first
class mail shall be deemed in every respect
effective service of process upon the party
in any such suit or proceeding. Nothing
herein shall affect either party's right to
serve process in any other manner permitted
by law. Each of the parties agrees that a
final non-appealable judgment in any such
suit or proceeding shall be conclusive and
may be enforced in other jurisdictions by
suit on such judgment or in any other lawful
manner.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
Signature Page to Registration Rights Agreement
IN WITNESS WHEREOF, the undersigned Investors and the
Company have caused this Agreement to be duly executed
as of the date first above written.
"COMPANY"
SUPERCONDUCTOR TECHNOLOGIES INC.
By:
M. Xxxxx Xxxxxx
President and Chief Executive Officer
"INVESTORS"
RESIDENCE: ___________ WILMINGTON SECURITIES, INC.
Investment Amount: $2,116,500
Common Shares: 2,227,895
Warrant Shares: 556,974 By:
Xxxxxx X. XxXxxxxxx, President
Address for Notice:
Wilmington Securities, Inc.
000 Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxxx, XX 00000
Attn: Xxxxxx X. XxXxxxxxx
RESIDENCE: ___________ XXXXX X. XXXXXXX, XXXXX XXXXXXXX XXXXXXX AND
X.X.
XXXXXXXXXXXX, TRUSTEES OF THE XXXXX X. XXXXXXX
Investment Amount: $187,500 TRUST U/A/T DATED NOVEMBER 18, 1985
Common Shares: 197,368
Warrant Shares: 49,342
By:
Address for Notice: X.X. Xxxxxxxxxxxx, Trustee
______________________
______________________
______________________
RESIDENCE: ___________ X.X. XXXXXXXXXXXX AND X.X. XXXXXX,
TRUSTEES U/A/T DATED DECEMBER 30, 1976 FOR THE
Investment Amount: $49,000 CHILDREN OF JULIET XXX XXXXXXX XXXXXXX
Common Shares: 51,579
Warrant Shares: 12,895
By:
Address for Notice: X.X. Xxxxxxxxxxxx, Trustee
By:
X.X. Xxxxxx, Trustee
RESIDENCE: ___________ X.X. XXXXXXXXXXXX AND X.X. XXXXXX,
TRUSTEES U/A/T DATED DECEMBER 30, 1976 FOR THE
Investment Amount: $49,000 CHILDREN OF XXXXXX XXXXXXX XXXXXX
Common Shares: 51,579
Warrant Shares: 12,895
By:
Address for Notice: X.X. Xxxxxxxxxxxx, Trustee
By:
X.X. Xxxxxx, Trustee
RESIDENCE: ___________ X.X. XXXXXXXXXXXX AND X.X. XXXXXX,
TRUSTEES U/A/T DATED DECEMBER 30, 1976 FOR THE
Investment Amount: $49,000 CHILDREN OF XXXXX XXX XXXXXXX, XX.
Common Shares: 51,579
Warrant Shares: 12,895
By:
Address for Notice: X.X. Xxxxxxxxxxxx, Trustee
By:
X.X. Xxxxxx, Trustee
RESIDENCE: ___________ X.X. XXXXXXXXXXXX AND
X.X. XXXXXX,
Investment Amount: $49,000 TRUSTEES U/A/T DATED
Common Shares: 51,579 DECEMBER 30, 1976 FOR
Warrant Shares: 12,895 THE CHILDREN OF XXXXXXX
XXXXXXX XXXXXXX
Address for Notice:
By:
X.X. Xxxxxxxxxxxx, Trustee
By:
X.X. Xxxxxx, Trustee
