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Exhibit 10.67
EXHIBIT C
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement dated as of the 26th day of April,
2002 is entered into by and among Uniroyal Technology Corporation, a Delaware
corporation (the "Company"), and AFG-NVC, LLC, a Virginia limited liability
company ("AFG").
WHEREAS, AFG, the Company and Sterling Semiconductor, Inc. are parties
to that certain Settlement Agreement, dated April 26, 2002 (the "Settlement
Agreement");
WHEREAS, pursuant to the terms of the Settlement Agreement, the
Company has issued 300,000 shares (the "Shares") of its Common Stock, par value
$.01 per share (the "Common Stock") to AFG; and
WHEREAS, the Company intends to file a Form S-3 on or before May 15,
2002 and to include the Shares in its registration ; and
WHEREAS, in the event that such registration does not occur, and to
fulfill one of the conditions to the consummation of the transactions
contemplated by the Settlement Agreement, the Company has agreed to grant AFG
certain registration rights with respect to the Shares as more fully described
herein.
NOW, THEREFORE, in consideration of the mutual covenants and
agreements contained herein and the issuance of the shares of Common Stock to
AFG pursuant to the Settlement Agreement, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
the parties hereto agree as follows:
Section 1. Certain Definitions. As used in this Agreement, the
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following terms shall have the following respective meanings:
"Affiliate" means with respect to AFG, any partner or member of AFG,
or any Person that directly or indirectly controls or is controlled by or is
under common control with, AFG.
"Certificate of Incorporation" means the Company's Amended and
Restated Certificate of Incorporation in effect on the date hereof and as
amended, modified or restated from time to time.
"Commission" means the Securities and Exchange Commission or any other
federal agency at the time administering the Securities Act and the Exchange
Act.
"Common Stock" means (a) the Common Stock, par value $.01 per share,
of the Company, (b) any other capital stock of any class or classes (however
designated) of the Company, authorized on or after the date hereof, the holders
of which shall have the right, without limitation as to amount, either to all
or to a share of the balance of current dividends and liquidating distributions
after the payment of dividends and distributions on any shares entitled to
preference in the distribution of assets upon the voluntary or involuntary
dissolution of the Company, and the holders of which shall ordinarily, in the
absence of contingencies or in the absence of any provision to the contrary in
the Certificate of Incorporation, be entitled to vote for the election of a
majority of directors of the Company (even though the right so to vote has been
suspended by the happening of such a contingency or provision), and (c) any
other securities into which or for which any of the securities described in (a)
or (b) may be converted or exchanged pursuant to a plan of recapitalization,
reorganization, merger, sale of assets or other similar transaction.
"Exchange Act" means the Securities Exchange Act of 1934, or any
similar or successor federal statute, and the rules and regulations of the
Commission thereunder, all as the same shall be in effect from time to time.
"Form X-0, X-0 and S-18" means Forms X-0, X-0, X-00, as the case may
be, promulgated under the Securities Act and as in effect on the date hereof or
any similar or successor forms promulgated under the Securities Act or adopted
by the Commission.
"Person" means an individual, corporation, partnership, joint venture,
trust, or unincorporated organization, or a government or any agency or
political subdivision thereof.
"Registrable Shares" means (i) the shares of Common Stock issued in
connection with the Settlement Agreement; (ii) any shares of Common Stock or
other securities issued or issuable in respect of such shares of Common Stock
upon any stock split, stock dividend, recapitalization, reorganization, merger,
consolidation, sale of assets or similar event, and (iii) any shares of capital
stock of the Company acquired by AFG directly from the Company or an affiliate
of the Company after the date hereof. As to any particular Registrable Shares,
such Registrable Shares shall cease to be Registrable Shares when (i) they have
been registered under the Securities Act, the registration statement in
connection therewith has been declared effective and they have been disposed of
pursuant to such effective registration statement, (ii) they have been
distributed to the public pursuant to Rule 144, (iii) they are eligible for
distribution to the public pursuant to Rule 144(k) or all (but not less than
all) of such Registrable Shares are eligible for distribution to the public at
one time pursuant to the other provisions of Rule 144 without violation of the
applicable volume limitations and the holder of such Registrable Shares owns
less than 1% of the outstanding capital stock of the Company, (iv) they shall
have been otherwise transferred and the subsequent disposition of them shall
not require registration under the Securities Act, (v) they shall have ceased
to be outstanding, or (vi) they shall have been sold, transferred or assigned
in contravention of Section 12 of this Agreement.
"Rule 144" means Rule 144 promulgated under the Securities Act or any
similar or successor rule.
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"Rule 145" means Rule 145 promulgated under the Securities Act or any
similar or successor rule.
"Securities Act" means the Securities Act of 1933, or any similar or
successor federal statute, and the rules and regulations of the Commission
thereunder, all as the same shall be in effect from time to time.
Section 2. "Piggy-Back" Registrations. If at any time the Company shall propose
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to register under the Securities Act (other than pursuant to Section 3 and 4 of
this Agreement) any of its securities, whether for its own account or for the
account of other security holders, each such time it will promptly give written
notice to all holders of Registrable Shares of its intention so to do. Upon the
written request of any such holder, received by the Company within thirty (30)
days after the giving of any such notice by the Company, to register any or all
of its Registrable Shares, the Company will use its best efforts to cause the
Registrable Shares as to which registration shall have been so requested to be
included in the securities to be covered by the registration statement proposed
to be filed by the Company, all to the extent requisite to permit the sale or
other disposition by the holder (in accordance with its written request) of
such Registrable Shares so registered. If the registration of which the Company
gives notice is for a registered public offering involving an underwriting, the
Company shall so advise the holders of Registrable Shares as a part of the
written notice given pursuant to this Section 2. In such event the right of any
holder of Registrable Shares to registration pursuant to this Section 2 shall
be conditioned upon such holder's participation in such underwriting to the
extent provided herein. All holders of Registrable Shares proposing to
distribute their securities through such underwriting shall (together with the
shares of Common Stock to be registered by the Company and shares of Common
tock held by Persons who by virtue of agreements with the Company are entitled
to include shares in such registration (the "Other Shareholders")) enter into
an underwriting agreement in customary form with the underwriter or
underwriters selected for underwriting by the Company. If any holder of
Registrable Shares disapproves of the terms of any such underwriting, it may
elect to withdraw therefrom by written notice to the Company and the
underwriter. Any Registrable Shares or other securities excluded or withdrawn
from such underwriting shall be withdrawn from such registration.
Notwithstanding any other provision of this Section 2, if the underwriter
determines that marketing factors require a limitation on the number of shares
to be underwritten, the underwriter may exclude from such registration and
underwriting all of the Registrable Shares which would otherwise be
underwritten pursuant to this Section 2. The Company shall so advise all
holders of securities requesting registration of any limitations on the number
of shares to be underwritten and the number of shares of securities that are
entitled to be included in the registrationNotwithstanding the foregoing
provisions, the Company may withdraw any registration statement referred to in
this Section 2 without thereby incurring any liability to the holders of
Registrable Shares.
Section 3. Demand Registrations.
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(a) Commencing at any time after June 1, 2002, the holders of
Registrable Shares constituting at least 40% of the Registrable Shares then
outstanding may request the Company to register for sale under the Securities
Act all or any portion of the Registrable Shares held by such requesting holder
or holders for sale in the manner specified in such notice. If, in connection
with a registration requested pursuant to this Section 3 the holder or holders
of Registrable Shares are unable to include in such registration the full
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number of Registrable Shares for which registration has been requested, either
as a result of any limitation on the registration of shares placed by the
managing underwriter or for any other reason, then such registration shall be d
eemed to have been a registration under Section 2 of this Agreement.
(b) Following receipt of any notice under this Section 3, the Company
shall immediately notify all holders of Registrable Shares from whom notice has
not been received and such holders shall then be entitled within thirty (30)
days after receipt of such notice from the Company to request the Company to
include in the requested registration all or any portion of their Registrable
Shares. The Company shall use its best efforts to register under the Securities
Act, for public sale in accordance with the method of disposition specified in
the notice from requesting holders described in paragraph (a) above, the number
of Registrable Shares specified in such notice (and in all notices received by
the Company from other holders within thirty (30) days after the receipt of
such notice by such holders).
(c) If the holders requesting such registration intend to distribute
the Registrable Shares covered by their request by means of an underwriting,
they shall so advise the Company as a part of their request made pursuant to
this Section 3 and the Company shall include such information in the written
notice referred to in paragraph (b) above.
(d) A registration statement filed pursuant to this Section 3 may,
subject to the following provisions, include (i) shares of Common Stock for
sale by the Company for the Company's own account, (ii) shares of Common Stock
held by officers or directors of the Company and (iii) shares of Common Stock
held by Other Shareholders, in each case for sale in accordance with the method
of disposition specified by the requesting holders. If such registration shall
be underwritten, the Company, such officers and directors and Other
Shareholders proposing to distribute their shares through such underwriting
shall enter into an underwriting agreement in customary form with the
representative of the underwriter or underwriters selected for such
underwriting. If and to the extent that the managing underwriter determines
that marketing factors require a limitation on the number of shares to be
included in such registration, then the shares of Common Stock held persons
other than the Company, including Registrable Shares, will be reduced in such
manner that the securities to be sold shall be allocated among the selling
holders pro rata based on the size of their ownership. No Registrable Shares or
any other security excluded from the registration and underwriting by reason of
the underwriter's marketing limitation shall be included in such registration
and underwriting. If any holder of Registrable Shares, officer, director or
Other Shareholder who has requested inclusion in such registration as provided
above, disapproves of the terms of the underwriting, such holder of securities
may elect to withdraw therefrom by written notice to the Company and the
managing underwriter. The securities so withdrawn shall also be withdrawn from
registration.
Section 4. Short-Form Registration on Form S-3. If the Company files a Form S-3
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as anticipated on or before May 15, 2002, then the Company shall include the
Shares in such registration. If at any time (i) the holders of the Registrable
Shares request that the Company file a registration statement on Form S-3 for a
public offering of all or any portion of the Registrable Shares held by such
requesting holder or holders, and (ii) the Company is a registrant entitled to
use Form S-3 to register such shares, then the Company shall use its best
efforts to register under the Securities Act on Form S-3, for public sale in
accordance with the method of disposition specified in such notice, the number
of Registrable Shares specified in such notice. Whenever the Company is
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required by this Section 4 to effect the registration of Registrable Shares,
each of the procedures and requirements of Section 3, including, but not
limited to, the requirement that the Company notify all holders of Registrable
Shares from whom notice has not been received and provide them with the
opportunity to participate in the offering (provided, however that holders
shall have no more than twenty (20) days to reply to the Company's notice in
order to participate in the offering), shall apply to such registration.
Section 5. Expiration of Obligations. The obligations of the Company to
register Registrable Shares pursuant to Sections 2, 3 and 4 of this Agreement
shall expire on the first to occur of the second anniversary of the effective
date of the Settlement Agreement and the date when no more Registrable Shares
are outstanding.
Section 6. Effectiveness of Registration Statements. The Company will use its
best efforts to maintain the effectiveness of any registration statement
pursuant to which any of the Registrable Shares are being offered until the
earlier to occur of (i) the completion by the underwriters of the distribution
pursuant to such registration statement and (ii) nine (9) months after the
effective date of any registration statement, and from time to time will amend
or supplement such registration statement and the prospectus contained therein
as and to the extent necessary to comply with the Securities Act and any
applicable state securities statute or regulation. The Company will also
provide each holder of Registrable Shares with as many copies of the prospectus
contained in any such registration statement as each such holder may reasonably
request.
Section 7. Indemnification; Procedures; Contribution.
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(a) In the event that the Company registers any of the Registrable
Shares under the Securities Act in accordance with this Agreement, the Company
will, to the extent permitted by law, indemnify and hold harmless each holder
and each underwriter of the Registrable Shares (including their officers,
directors, affiliates and partners) so registered (including any broker or
dealer through whom such shares may be sold) and each Person, if any, who
controls such holder or any such underwriter within the meaning of Section 15
of the Securities Act from and against any and all losses, claims, damages,
expenses or liabilities, joint or several, to which they or any of them become
subject under the Securities Act or under any other statute or at common law or
otherwise, and, except as hereinafter provided, will reimburse each such holder,
each such underwriter and each such controlling Person, if any, for any legal
or other expenses reasonably incurred by them or any of them in connection with
investigating or defending any actions whether or not resulting in any
liability, insofar as such losses, claims, damages, expenses, liabilities or
actions arise out of or are based upon any untrue statement or alleged untrue
statement of a material fact contained in the registration statement or any
filing with any state securities commission or agency, in any preliminary or
amended preliminary prospectus or in the final prospectus (or the registration
statement or prospectus as from time to time amended or supplemented by the
Company) or arise out of or are based upon (i) any untrue statement or alleged
untrue statement of any material fact contained in any prospectus, offering
circular or other document incident to such registration (including any related
notification, registration statement under which such Registrable Shares were
registered under the Securities Act pursuant to Section 2, 3 or 4, any
preliminary prospectus or final prospectus contained therein, or any amendment
or supplement thereof), (ii) any blue sky application or other document
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executed by the Company specifically for that purpose or based upon written
information furnished by the Company filed in any state or other jurisdiction
in order to qualify any or all of the Registrable Shares under the securities
laws thereof (any such application, document or information herein called a
"Blue Sky Application"), (iii) any omission or alleged omission to state in any
such registration statement, prospectus, amendment or supplement or in any Blue
Sky Applications executed or filed by the Company, a material fact required to
be stated therein or necessary to make the statements therein not misleading,
(iv) any violation by the Company or its agents of the Securities Act or any
rule or regulation promulgated under the Securities Act applicable to the
Company or its agents and relating to action or inaction required of the
Company in connection with such registration, or (v) any failure to register or
qualify the Registrable Shares in any state where the Company or its agents has
affirmatively undertaken or agreed in writing that the Company (the undertaking
of any underwriter chosen by the Company being attributed to the Company) will
undertake such registration or qualification (provided that in such instance
the Company shall not be so liable if it has used its best efforts to so
register or qualify the Registrable Shares) and will reimburse each such
holder, and such officer, director and partner, each such underwriter and each
such controlling Person for any legal or other expenses reasonably incurred by
them in connection with investigating or defending any such loss, claim,
damage, liability or action, promptly after being so incurred, provided,
however, that the Company will be liable hereunder in any such case if 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 reliance upon and in conformity with
information placed by the Company in such registration statement or
prospectus.
(b) In the event of a registration of any of the Registrable Shares
under the Securities Act pursuant to Section 2, 3 or 4, each seller of such
Registrable Shares thereunder, jointly and severally, will indemnify and hold
harmless the Company, each Person, if any, who controls the Company within the
meaning of the Securities Act, each officer of the Company who signs the
registration statement, each director of the Company, each other seller of
Registrable Shares, each underwriter and each Person who controls any
underwriter within the meaning of the Securities Act, against all losses,
claims, damages or liabilities, joint or several, to which the Company or such
officer, director, other seller, underwriter or controlling Person may become
subject under the Securities Act or otherwise, solely 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 prospectus offering circular or other document incident
to such registration (including any related notification, registration
statement under which such Registrable Shares were registered under the
Securities Act pursuant to Section 2, 3 or 4, any preliminary prospectus or
final prospectus contained therein, or any amendment or supplement thereof),
or any Blue Sky Application 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, and will reimburse
the Company and each such officer, director, other seller, underwriter and
controlling Person for any legal or other expenses reasonably incurred by them
in connection with investigating or defending any such loss, claim, damage,
liability or action, promptly after being so incurred provided, however, that
such seller will be liable hereunder in any such case if 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 reliance upon and in conformity with information pertaining to such
seller, as such, furnished in writing to the Company by such seller
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specifically for use in such registration statement or prospectus; and
provided, further, that the liability of each seller hereunder shall be limited
to the proportion of any such loss, claim, damage, liability or expense which
is equal to the proportion that the public offering price of all securities
sold by such seller under such registration statement bears to the total
public offering price of all securities sold thereunder, but not in any event
to exceed the net proceeds received by such seller from the sale of
Registrable Shares covered by such registration statement. Not in limitation
of the foregoing, it is understood and agreed that, except as set forth in
Section 7(e), the indemnification obligations of any seller hereunder pursuant
to any underwriting agreement entered into in connection herewith shall be
limited to the obligations contained in this subparagraph (b).
(c) Promptly after receipt by an indemnified party hereunder of notice
of the commencement of any action, such indemnified party shall, if a claim in
respect thereof is to be made against the indemnifying party hereunder, notify
the indemnifying party in writing thereof, but the omission so to notify the
indemnifying party shall not relieve it from any liability which it may have to
such indemnified party other than under this Section 7 and shall only relieve
it from any liability which it may have to such indemnified party under this
Section 7 if and to the extent the indemnifying party is prejudiced by such
omission. In case any such action shall be brought against any indemnified
party and it shall notify the indemnifying party of the commencement thereof,
the indemnifying party shall be entitled to participate in and, to the extent
it shall wish, to assume and undertake the defense thereof with counsel
satisfactory to such indemnified party, and, after notice from the indemnifying
party to such indemnified party of its election so to assume and undertake the
defense thereof, the indemnifying party shall not be liable to such indemnified
party under this Section 7 for any legal expenses subsequently incurred by such
indemnified party in connection with the defense thereof other than reasonable
costs of investigation and of liaison with counsel so selected, provided,
however, that, if the defendants in any such action include both the
indemnified party and the indemnifying party and the indemnified party shall
have reasonably concluded that there may be reasonable defenses available to it
which are different from or additional to those available to the indemnifying
party or that the interests of the indemnified party reasonably may be deemed
to conflict with the interests of the indemnifying party, the indemnified party
shall have the right to select a separate counsel and to assume such legal
defenses and otherwise to participate in the defense of such action, with the
expenses and fees of such separate counsel and other expenses related to such
participation to be reimbursed by the indemnifying party as incurred. No
indemnifying party, in the defense of any such claim or action, shall, except
with the consent of each indemnified party (which consent shall not be
unreasonably withheld or delayed), consent to entry of any judgment or enter
into any settlement which does not include as an unconditional term thereof the
giving by the claimant or plaintiff to such indemnified party of a release from
all liability in respect to such claim or action, and the indemnification
agreements contained in Sections 7(a) and 7(b) shall not apply to any
settlement entered into in violation of this sentence. Each indemnified party
shall furnish such information regarding itself or the claim in question as an
indemnifying party may reasonably request in writing and as shall be reasonably
required in connection with defense of such claim and litigation resulting
therefrom.
(d) In order to provide for just and equitable contribution to joint
liability under the Securities Act in any case in which either (i) any holder
of Registrable Shares exercising rights under this Agreement, or any
controlling Person of any such holder, makes a claim for indemnification
pursuant to this Section 7 but it is judicially determined (by the entry of a
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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 this Section 7 provides for indemnification in such case, or (ii)
contribution under the Securities Act may be required on the part of any such
selling holder or any such controlling person in circumstances for which
indemnification is provided under this Section 7, then, in each case, the
Company and such holder will contribute to the aggregate losses, claims,
damages or liabilities to which they may be subject (after contribution from
others) in such proportion as is appropriate to reflect the relative fault of
the Company on the one hand and of the holder of Registrable Shares on the
other in connection with the statements or omissions which resulted in such
losses, claims, damages or liabilities, as well as any other relevant equitable
considerations. The relative fault of the Company on the one hand and of the
holder of Registrable Shares on the other shall be determined by reference to,
among other things, whether the untrue or alleged untrue statement of a
material fact or omission or alleged omission to state a material fact relates
to information supplied by the Company on the one hand or by the holder of
Registrable Shares on the other, and each party's relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
omission; provided, however, that, in any such case, (A) no such holder of
Registrable Shares will be required to contribute any amount in excess of the
proceeds received from the sale of all such Registrable Shares offered by it
pursuant to such registration statement and (B) no Person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
will be entitled to contribution from any Person who was not guilty of such
fraudulent misrepresentation.
(e) Notwithstanding the foregoing, to the extent that the provisions
on indemnification and contribution contained in the underwriting agreement
entered into in connection with an underwritten public offering are in conflict
with the foregoing provisions, the provisions in the underwriting agreement
shall control.
(f) The indemnities and obligations provided in this Section 7 shall
survive the completion of any offering of Registrable Shares and the transfer
of any Registrable Shares by such holder.
Section 8. Exchange Act Registration and Rule 144 Reporting.
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(a) The Company will, at its expense, continue to use its best efforts
to list on a national securities exchange and maintain such listing of, all of
its Common Stock.
(b) With a view to making available the benefits of certain rules and
regulations of the Commission which may at any time permit the sale of the
Registrable Shares to the public without registration, at all times, the
Company agrees to:
(i) Make and keep public information available, as those
terms are understood and defined in Rule 144, at all times after the date the
Company becomes subject to the reporting requirements of either Section 13 or
Section 15(d) of the Exchange Act;
(ii) File with the Commission in a timely manner all
reports and other documents required of the Company under the Securities Act
and the Exchange Act;
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(iii) Take such action, as is necessary to enable the holders
of Registrable Shares to utilize Form S-3 for the sale of their Registrable
Shares; and
(iv) Furnish to each holder of Registrable Shares forthwith
upon request (aa) a written statement by the Company as to its compliance with
the reporting requirements of Rule 144, the Securities Act and the Exchange Act,
or that it qualifies as a registrant whose securities may be resold pursuant to
Form S-3 (at any time after the Company so qualifies), (bb) a copy of the most
recent annual or quarterly report of the Company and (cc) such other
information, reports and documents so filed by the Company as such holder may
reasonably request in availing itself of any rule or regulation of the
Commission allowing such holder to sell any Registrable Shares without
registration. The Company agrees to use its best efforts to facilitate and
expedite transfers of the Registrable Shares pursuant to Rule 144, which
efforts shall include timely notice to the Company's transfer agent to expedite
such transfers of Registrable Shares.
Section 9. Damages. The Company recognizes and agrees that the holder of
Registrable Shares will not have an adequate remedy if the Company fails to
comply with this Agreement and that damages may not be readily ascertainable,
and the Company expressly agrees that, in the event of such failure, it shall
not oppose an application by the holder of Registrable Shares or any other
Person entitled to the benefits of this Agreement requiring specific
performance of any and all provisions hereof or enjoining the Company from
continuing to commit any such breach of this Agreement.
Section 10. Registration Procedures. If and whenever the Company is required by
the provisions of Section 2, 3 or 4 to use its best efforts to effect the
registration of any Registrable Shares under the Securities Act, the Company
will, as expeditiously as possible:
(a) Prepare and file with the Commission a registration statement
(which, in the case of an underwritten public offering pursuant to Section 3,
shall be on Form S-1 or other form of general applicability satisfactory to the
managing underwriter selected as therein provided) with respect to such
securities including executing an undertaking to file post-effective amendments
and use its best efforts to cause such registration statement to become and
remain effective for the period of the distribution contemplated thereby;
(b) Prepare and file with the Commission such amendments and
supplements to such registration statement and the prospectus used in
connection therewith as may be necessary to keep such registration statement
effective for the period specified herein and comply with the provisions of the
Securities Act with respect to the disposition of all Registrable Shares
covered by such registration statement in accordance with the sellers'
intended method of disposition set forth in such registration statement for
such period;
(c) Furnish to each seller of Registrable Shares and to each
underwriter such number of copies of the registration statement and each such
amendment and supplement thereto (in each case including all exhibits) and the
prospectus included therein (including each preliminary prospectus) as such
Persons reasonably may request in order to facilitate the public sale or other
disposition of the Registrable Shares covered by such registration statement;
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(d) Use its best efforts to register or qualify the Registrable Shares
covered by such registration statement under the securities or "blue sky" laws
of such jurisdictions as the sellers of Registrable Shares or, in the case of
an underwritten public offering, the managing underwriter reasonably shall
request;
(e) Use its best efforts to list the Registrable Shares covered by
such registration statement with any securities exchange or quotation system on
which the Common Stock of the Company is then listed;
(f) Comply with all applicable rules and regulations under the
Securities Act and Exchange Act;
(g) Promptly notify each seller of Registrable Shares and each
underwriter under such registration statement, at any time when a prospectus
relating thereto is required to be delivered under the Securities Act, of the
happening of any event of which the Company has knowledge as a result of which
the prospectus contained in such 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 light of the circumstances then existing, and promptly
prepare and furnish to such seller a reasonable number of copies of a
prospectus supplemented or amended so that, as thereafter delivered to the
purchasers of such Registrable Shares, such prospectus shall not include an
untrue statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein not misleading
in light of the circumstances then existing;
(h) If the offering is underwritten and at the request of any seller
of Registrable Shares, furnish on the date that Registrable Shares are
delivered to the underwriters for sale pursuant to such registration (i) an
opinion dated such date of counsel representing the Company for the purposes of
such registration, addressed to the underwriters to such effects as reasonably
may be requested by counsel for the underwriters and executed counterparts of
such opinion addressed to the sellers of Registrable Shares to the same effect
as requested by counsel for the underwriters and (ii) a letter dated such date
from the independent public accountants retained by the Company, addressed to
the underwriters and executed counterparts of such letter addressed to the
Sellers of Registrable Shares stating that they are independent public
accountants within the meaning of the Securities Act and that, in the opinion
of such accountants, the financial statements of the Company included in the
registration statement or the prospectus, or any amendment or supplement
thereof, comply as to form in all material respects with the applicable
accounting requirements of the Securities Act and such letter shall
additionally cover such other financial matters (including information as to
the period ending no more than five (5) business days prior to the date of such
letter) with respect to such registration as such underwriters reasonably may
request;
(i) Make available for inspection by any underwriter participating in
any distribution pursuant to such registration statement, and any attorney,
accountant or other agent retained by such underwriter, reasonable access to
pertinent records of the Company, as such parties may reasonably request, and
cause the Company's officers, directors and employees to supply all information
reasonably requested by any such underwriter, attorney, accountant or agent in
connection with such registration statement;
10
(j) Cooperate with the selling holders of Registrable Shares and the
managing underwriter, if any, to facilitate the timely preparation and delivery
of certificates representing Registrable Shares to be sold, such certificates
to be in such denominations and registered in such names as such holders or the
managing underwriter may request at least two business days prior to any sale
of Registrable Shares; and
(k) Permit any holder of Registrable Shares which holder, in the sole
and exclusive judgment, exercised in good faith, of such holder, might be
deemed to be a controlling Person of the Company, to participate in good faith
in the preparation of such registration or comparable statement and to require
the insertion therein of material, furnished to the Company in writing, which
in the reasonable judgment of such holder and its counsel should be included.
For purposes of this Agreement, the period of distribution of
Registrable Shares in a firm commitment underwritten public offering shall be
deemed to extend until each underwriter has completed the distribution of all
securities purchased by it, and the period of distribution of Registrable Shares
in any other registration shall be deemed to extend until the earlier of the
sale of all Registrable Shares covered thereby or 180 days after the effective
date thereof, provided, however, in the case of any registration of Registrable
Shares on Form S-3 or a comparable or successor form which are intended to be
offered on a continuous or delayed basis, such 180 day-period shall be
extended, if necessary, to the second anniversary of the date of this
Agreement, and provided further that applicable rules under the Securities Act
governing the obligation to file a post-effective amendment, permit, in lieu of
filing a post-effective amendment which (y) includes any prospectus required by
Section 10(a)(3) of the Securities Act or (z) reflects facts or events
representing a material or fundamental change in the information set forth in
the registration statement, the incorporation by reference of information
required to be included in (y) and (z) above contained in periodic reports
filed pursuant to Section 13 or 15(d) of the Exchange Act in the registration
statement.
Section 11. Expenses.
--------
(a) In the case of any registration statement under Section 2, 3 or 4
of this Agreement, the Company shall bear all costs and expenses of each such
registration, including, but not limited to, all registration and filing fees,
printing expenses, fees and disbursements of counsel and independent public
accountants for the Company, fees and expenses (including counsel fees)
incurred in connection with complying with state securities or "blue sky" laws,
fees of the National Association of Securities Dealers, Inc., transfer taxes,
fees of transfer agents and registrars, costs of any insurance which might be
obtained by the Company with respect to the offering by the Company
(collectively, "Registration Expenses"). The Company shall have no obligation
to pay or otherwise bear any portion of the underwriters' commissions or
discounts attributable to the Registrable Shares ("Selling Expenses"). All
Selling Expenses in connection with each registration statement under Section
3, 4 or 5 shall be borne by the participating sellers (including the Company,
where applicable) in proportion to the number of shares registered by each, or
by such participating sellers other than the Company (to the extent the Company
shall be a seller) as they may agree.
(b) The Company shall not be obligated to pay any expenses of the
holders of the Registrable Shares in connection with any registration initiated
11
pursuant to Section 3 at the request of the holders of the Registrable Shares,
if such registration statement is withdrawn, delayed, or abandoned for any
reason.
Section 12. Transferability of Registration Rights. For all purposes of this
Agreement, the holder of Registrable Shares shall include not only AFG but (i)
any assignee or transferee of the Registrable Shares who acquires any or at
least ten percent (10%) of the Registrable Shares held by AFG on the date
hereof other than sales in the public markets or pursuant to Rule 144, or (ii)
any of AFG's Affiliates; provided, however, that each such assignee or
transferee agrees in writing to be bound by all of the provision of this
Agreement.
Section 13. Miscellaneous.
-------------
(a) No failure or delay on the part of any party to this Agreement in
exercising any right, power or remedy hereunder shall operate as a waiver
thereof; nor shall any single or partial exercise of any such right, power or
remedy preclude any other or further exercise thereof or the exercise of any
other right, power or remedy hereunder. The remedies herein provided are
cumulative and not exclusive of any remedies provided by law.
(b) Except as hereinafter provided, amendments or additions to this
Agreement may be made, this Agreement may be terminated, and compliance with
any covenant or provision set forth herein may be omitted or waived, if the
Company shall obtain consent thereto in writing from the holder or holders of
at least fifty percent (50%) in interest of the Registrable Shares, and shall
deliver copies of such consent in writing to any holders who did not execute
such consent; provided, that no consents shall be effective to reduce the
percentage in interest of the Registrable Shares the consent of the holders of
which is required under this Section. Any waiver or consent may be given
subject to satisfaction of conditions stated therein and any waiver or consent
shall be effective only in the specific instance and for the specific purpose
for which given.
(c) All notices, requests, consents and other communications hereunder
shall be in writing, shall be addressed to the receiving party's address set
forth below or to such other address as a party may designate by notice
hereunder, and shall be either (i) delivered by hand, (ii) made by telex,
telecopy or facsimile transmission, (iii) sent by overnight courier, or (iv)
sent by registered or certified mail, return receipt requested, postage prepaid.
If to the Company to: Uniroyal Technology Corporation
0 Xxxxx Xxxxxxx Xxxxx, Xxxxx 000
Xxxxxxxx, XX 00000
ATTN: Xxxxxx X. Xxxx
Fax. No.: (000) 000-0000
With a copy to: General Counsel
Uniroyal Technology Corporation
0 Xxxxx Xxxxxxx Xxxxx, Xxxxx 000
Xxxxxxxx, XX 00000
Fax. No.: (000) 000-0000
12
If to AFG to: Xxxxx Financial Group
00000 Xxxxxx Xxxxx Xxxx
Xxxxx #000
Xxxxxxx, XX 00000
Attn: Xxxxxx X. Xxxxx
Fax No: (000) 000-0000
With a copy to: Xxxxx Xxxxxx
XXXXX XXXXX XXXX XXXXXX XXXXXXX
& POPEO, PC
00000 Xxxxxxx Xxxxx
Xxxxx 000
Xxxxxx, XX 00000
Fax No: (000) 000-0000
All notices, requests, consents and other communications hereunder
shall be deemed to have been given either (i) if by hand, at the time of the
delivery thereof to the receiving party at the address of such party set forth
above, (ii) if made by telex, telecopy or facsimile transmission, at the time
that receipt thereof has been acknowledged by electronic confirmation or
otherwise, (iii) if sent by overnight courier, on the next business day
following the day such notice is delivered to the courier service, or (iv) if
sent by registered or certified mail, on the fifth business day following the
day such mailing is made.
(d) Except as contemplated by Section 12 of this Agreement, this
Agreement shall be binding upon and inure to the benefit of the Company and AFG
and their respective heirs, successors and assigns, except that the Company
shall not have the right to delegate its obligations hereunder or to assign its
rights hereunder or any interest herein other than to an entity that acquires
substantially all of the assets of the Company without the prior written
consent of the holders of at least a fifty percent (50%) in interest of the
Registrable Shares.
(e) This Agreement and Settlement Agreement (which for purposes of
this Section 13 shall include all other agreements referenced therein),
constitute the entire agreement between the parties and supersede any prior
understandings or agreements concerning the subject matter hereof.
(f) The provisions of this Agreement and the Settlement Agreement are
severable and, in the event that any court of competent jurisdiction shall
determine that any one or more of the provisions or part of a provision
contained in this Agreement or the Settlement Agreement shall, for any reason,
be held to be invalid, illegal or unenforceable in any respect, such
invalidity, illegality or unenforceability shall not affect any other provision
or part of a provision of this Agreement or the Settlement Agreement; but this
Agreement and the Settlement Agreement, shall be reformed and construed as if
such invalid or illegal or unenforceable provision, or part of a provision, had
never been contained herein, and such provisions or part reformed so that it
would be valid, legal and enforceable to the maximum extent possible.
(g) The Company shall not grant to any holder or prospective holder of
securities of the Company any demand or incidental registration rights more
13
favorable than any of those contained herein, so long as any of the
registration rights under this Agreement remain in effect, without the prior
written consent of holders of not less than fifty (50%) of the then outstanding
Registrable Shares. The Company is not a party to any other agreement which
conflicts with the rights granted hereunder.
(h) In the event that any court of competent jurisdiction shall
determine that any provision, or any portion thereof, contained in this
Agreement shall be unenforceable in any respect, then such provision shall be
deemed limited to the extent that such court deems it enforceable, and as so
limited shall remain in full force and effect. In the event that such court
shall deem any such provision, or portion thereof, wholly unenforceable, the
remaining provisions of this Agreement shall nevertheless remain in full force
and effect.
(i) The parties hereto acknowledge and agree that (i) each party and
its counsel, if so represented, reviewed and negotiated the terms and
provisions of this Agreement and have contributed to its revision and (ii) the
rule of construction to the effect that any ambiguities are resolved against
the drafting party shall not be employed in the interpretation of this
Agreement.
(j) This Agreement shall be governed by, and construed in accordance
with, the internal laws of the State of Delaware, and without giving effect to
choice of laws provisions.
(k) Article, section and subsection headings in this Agreement are
included herein for convenience of reference only and shall not constitute a
part of this Agreement for any other purpose.
(l) This Agreement may be executed in any number of counterparts, all
of which taken together shall constitute one and the same instrument, and any
of the parties hereto may execute this Agreement by signing any such
counterparts.
(m) From and after the date of this Agreement, upon the request of AFG
or the Company, the Company and AFG shall execute and deliver such instruments,
documents and other writings as may be reasonably necessary or desirable to
confirm and carry out and to effectuate fully the intent and purposes of this
Agreement.
[SIGNATURE PAGE IMMEDIATELY FOLLOWING]
14
IN WITNESS WHEREOF, the parties hereto have executed this Agreement or caused
this Agreement to be executed by their duly authorized representatives as of
the date first written above.
UNIROYAL TECHNOLOGY CORPORATION
By: /s/ Xxxxxx X. Xxxx
--------------------------------------
Xxxxxx X. Xxxx, Chairman and
Chief Executive Officer
AFG-NVC, LLC
By: Dashco, Inc., its Manager
/s/ Xxxxxx X. Xxxxx
--------------------------------------
Xxxxxx X. Xxxxx, President
15