COMMON STOCK PURCHASE AGREEMENT
Exhibit 10.2
THIS COMMON STOCK PURCHASE AGREEMENT (the “Agreement”), is made as of June 22, 2009 by
and between Superconductor Technologies Inc., a Delaware corporation (the “Company”), and
___ (the “Investor”).
RECITALS
A. The Company and the Investor desire to enter into this transaction to purchase and sell the
securities set forth herein pursuant to a currently effective shelf registration statement on Form
S-3, which has at least $74,000,000 in unallocated securities registered thereunder (Registration
Number 333-148115) (the “Registration Statement”), which Registration Statement has been
declared effective in accordance with the Securities Act of 1933, as amended, and the rules and
regulations promulgated thereunder (the “Act”), by the United States Securities and
Exchange Commission (the “Commission”).
B. The Investor wishes to purchase from the Company, and the Company wishes to sell to the
Investor, upon the terms and conditions stated in this Agreement,
___ shares of common
stock, $0.001 par value per share, of the Company (the “Common Stock”), at a purchase price
of $3.00 per share.
NOW, THEREFORE, the Company and the Investor hereby agree as follows:
AGREEMENT
1. As of the Closing (as defined below) and subject to the terms and conditions hereof, the
Company and the Investor agree that the Investor will purchase from the Company and the Company
will issue and sell to the Investor ___ shares of Common Stock (the “Shares”) for a
purchase price of $3.00 per share, or an aggregate purchase price of
$___ (the “Purchase
Price”).
2. The completion of the purchase and sale of the Shares shall occur at a closing (the
“Closing”) which is expected to occur on June 23, 2009 at or about 8:00 a.m., Los Angeles
time (unless another time or date shall be agreed upon by the Company and the Investor) (the date
of the Closing being referred to herein as, the “Closing Date”). At the Closing, (i) the
Investor shall pay its Purchase Price to the Company for the Shares to be issued and sold to such
Investor at the Closing, by wire transfer of immediately available funds in accordance with the
Company’s written wire instructions, and (ii) upon confirmation of receipt of such wire, unless
otherwise requested by the Investor and agreed to by the Company, the Shares purchased by the
Investor will be delivered by electronic book-entry at The Depository Trust Company
(“DTC”), registered in the Investor’s name and address as set forth on Exhibit A
and will be released by Registrar and Transfer Company, the Company’s transfer agent (the
“Transfer Agent”), to the Investor at the Closing. After the execution of this Agreement
by the Investor, the Investor shall direct the broker-dealer at which the account or accounts to be
credited with the Shares are maintained to set up a deposit/withdrawal at custodian
(“DWAC”) instructing the Transfer Agent
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to credit such account or accounts with the Shares. The Shares shall be free of restrictive
legends.
3. The Company has delivered to the Investor and shall file with the Commission a prospectus
and prospectus supplement (collectively the “Prospectus”), which form a part of the
Registration Statement, reflecting the offering of the Shares in conformity with the Act, including
Rule 424(b) thereunder. The Investor agrees that such Prospectus may be delivered to it in
electronic form.
4. The offering and sale of the Shares are being made pursuant to the Registration Statement
and the Prospectus. The Investor acknowledges that the Company intends to enter into agreements
with certain other investors on substantially the same form of this Agreement (and at the same
price per share) on or about the date hereof covering (including the Shares being issued hereunder)
up to a total of 3,752,005 shares of Common Stock (the “Offering”) pursuant to the
Registration Statement and the Prospectus.
5. The Company hereby makes the following representations, warranties and covenants to the
Investor:
(a) The Company is an entity duly incorporated, validly existing and in good standing under
the laws of the state of Delaware, with the requisite power and authority to own and use its
properties and assets and to carry on its business as currently conducted. The Company has the
requisite corporate power and authority to enter into and to consummate the transactions
contemplated by this Agreement and otherwise to carry out its obligations hereunder. The execution
and delivery of this Agreement by the Company and the issuance of the Shares have been duly
authorized by all necessary action on the part of the Company and no further consent or action is
required by the Company, its board of directors or its shareholders. This Agreement has been (or
upon delivery will be) duly executed by the Company and, when delivered in accordance with the
terms hereof, will constitute the valid and binding obligation of the Company enforceable against
the Company in accordance with its terms, except as may be limited by any bankruptcy, insolvency,
reorganization, moratorium, fraudulent conveyance or other similar laws affecting the enforcement
of creditors’ rights generally or by general principles of equity.
(b) The execution, delivery and performance of this Agreement by the Company and the
consummation by the Company of the transactions contemplated hereby do not and will not (i)
conflict with or violate any provision of the Company’s certificate of incorporation or bylaws,
(ii) subject to obtaining the Required Approvals (as defined below), conflict with, or constitute a
default (or an event that with notice or lapse of time or both would become a default) under, or
give to others any rights of termination, amendment, acceleration or cancellation (with or without
notice, lapse of time or both) of, any agreement, credit facility, debt or other instrument
(evidencing a Company debt or otherwise) or other understanding to which the Company is a party or
by which any property or asset of the Company is bound or affected, or (iii) result in a violation
of any law, rule, regulation, order, judgment, injunction, decree or other restriction of any court
or governmental authority to which the Company is subject (including federal and state securities
laws and regulations) and the rules and regulations of any self-regulatory organization to which
the Company or its securities are subject, or by which any
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property or asset of the Company is bound or affected except in each case of clause (ii) or
(iii) such as would not, individually or in the aggregate, have a material adverse effect on the
business, properties, financial condition or results of operations of the Company as set forth in
the Registration Statement and the Prospectus (exclusive of any amendments or supplements thereto
subsequent to the Closing Date) or materially impair the Company’s ability to perform its
obligations under this Agreement (a “Material Adverse Effect”).
(c) The Company is not required to obtain any consent, waiver, authorization or order of, give
any notice to, or make any filing or registration with, any court or other federal, state, local or
other governmental authority or other person in connection with the execution, delivery and
performance by the Company of this Agreement, other than (i) the required filing of the Prospectus
and the Registration Statement, (ii) applicable state securities law filings, (iii) the required
filings with the NASDAQ Stock Market (the “Trading Market”), and (iv) in all other cases,
where the failure to obtain such consent, waiver, authorization or order, or to give such notice or
make such filing or registration would not have a Material Adverse Effect (clauses (i), (ii) and
(iii) collectively, the “Required Approvals”). The Company has obtained all the Required
Approvals, except for those which will be obtained in the ordinary course prior to the Closing.
(d) The Shares are duly authorized and, when issued and paid for in accordance with the terms
hereof, will be duly and validly issued, fully paid and nonassessable, free and clear of all liens,
encumbrances and rights of first refusal, and conform to the description of Common Stock contained
in the Prospectus. The Company has reserved a sufficient number of duly authorized shares of
common stock to issue all of the Shares. At the Closing, the Shares shall have been approved for
quotation on the Trading Market.
(e) The Registration Statement (including any prospectus and prospectus supplement and all
information or documents incorporated by reference therein) was declared effective by the
Commission on February 13, 2008. The Registration Statement is effective on the date hereof and no
order preventing or suspending the use of the Registration Statement or any Prospectus has been or,
to the Company’s knowledge, is intended to be issued by the Commission. The term “Registration
Statement” as used in this Agreement means the Registration Statement at the time it became
effective and as supplemented or amended from time to time, including all financial schedules and
exhibits thereto and all documents incorporated by reference or deemed to be incorporated by
reference therein. The Registration Statement, as of the time it was declared effective, and any
amendments or supplements thereto as of the effective date thereof, and any prospectus included
therein complied, and the Prospectus complies, as of the applicable filing date thereof, in all
material respects with the requirements of the Act, and none of such Registration Statement nor any
such Prospectus, nor any report, schedule, form or statement filed by the Company under the
Securities Exchange Act of 1934 (the “Exchange Act”) pursuant to Sections 13(a) or 15(d)
thereunder and incorporated into the Prospectus, contains or, at the time of filing with the
Commission contained, any untrue statement of material fact or omits or, at the time of filing with
the Commission, omitted to state any material fact required to be stated therein or necessary to
make the statements therein, in the light of the circumstances under which they were made, not
misleading. The offering, sale and issuance of the Shares to the Investor are registered under the
Act by the Registration Statement, and no action taken or omitted to be taken by the Company shall
cause such Shares not to be
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freely transferable and tradable by the Investor without restriction. The Company is eligible
to use Form S-3 under the Act for the registration of the issuance and sale of the Shares. The
Shares are being issued as described in the Registration Statement.
(f) The Company has not, in the twelve (12) months preceding the date hereof, received notice
from the Trading Market to the effect that the Company is not in compliance with the listing or
maintenance requirements thereof. The Company is, and has no reason to believe that it will not in
the foreseeable future continue to be, in material compliance with the listing and maintenance
requirements for continued trading of the Common Stock on the Trading Market. The issuance and
sale of the Shares hereunder complies in all material respects with the rules or regulations of the
Trading Market.
(g) During the 30 days prior to the date hereof, the Company has not, and to its knowledge no
one acting on its behalf has, (i) taken, directly or indirectly, any action designed to cause or to
result in the stabilization or manipulation of the price of any security of the Company to
facilitate the sale or resale of any of the Common Stock, (ii) sold, bid for, purchased, or, paid
any compensation for soliciting purchases of, any of the Common Stock, or (iii) paid or agreed to
pay to any person any compensation for soliciting another to purchase any other securities of the
Company, other than, in the case of clauses (ii) and (iii), compensation paid to MDB Capital Group
LLC (the “Placement Agent”) in connection with the placement of the Common Stock.
6. The Investor hereby makes the following representations, warranties and covenants to the
Company:
(a) The Investor is purchasing the Shares for its own account, in the ordinary course of its
business and the Investor has no arrangement with any person to participate in the distribution of
the Shares. The Investor represents and warrants to, and covenants with, the Company that (i) the
Investor is knowledgeable, sophisticated and experienced in making, and is qualified to make
decisions with respect to, investments in shares presenting an investment decision like that
involved in the purchase of the Shares, including investments in securities issued by the Company
and investments in comparable companies, and has requested, received, reviewed and considered all
information it deemed relevant in making an informed decision to purchase the Shares, (ii) the
Investor has answered all questions in the Investor Questionnaire attached as Exhibit A and
the answers thereto are true and correct as of the date hereof and will be true and correct as of
the Closing Date and (iii) the Investor, in connection with its decision to purchase the Shares,
has reviewed the Prospectus and is relying only upon the Prospectus and the documents incorporated
by reference therein and the representations and warranties of the Company contained herein.
(b) The Investor represents that, except as set forth in response to Question 1 on Exhibit
A hereof, (i) it has had no position, office or other material relationship within the past
three years with the Company or persons known to it to be affiliates of the Company, (ii) it is
not, and as of the Closing will not be, a member of the Financial Industry Regulatory Authority or
an “associated person” (as such term is defined under the NASD Membership and Registration
Rules Section 1011), and (iii) neither the Investor nor any group of Investors (as identified in a
public filing made with the SEC) of which the Investor is a part in connection with
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the Offering, acquired, or obtained the right to acquire, 20% or more of the Common Stock (or
securities convertible into or exercisable for Common Stock) or the voting power of the Company on
a post-transaction basis.
(c) The Investor, together with its affiliates (as that term is defined under Rule 405 of the
Act) represents, warrants and agrees that, since the earlier to occur of (i) the date on which the
Placement Agent first contacted such Investor about the Offering and (ii) the date of this
Agreement, it has not engaged in any transactions in the securities of the Company in violation of
securities laws (including, without limitation, any short sales involving the Company’s
securities). The Investor covenants that it will not engage in any transactions in the securities
of the Company (including short sales) prior to the time that the transactions contemplated by this
Agreement are publicly disclosed. For purposes hereof, “short sales” include, without limitation,
all “short sales” as defined in Rule 200 promulgated under Regulation SHO under the Exchange Act,
whether or not against the box, and all types of direct and indirect stock pledges, forward sales
contracts, options, puts, calls, short sales, swaps, “put equivalent positions” (as defined in
Rule 16a-1(h) under the Exchange Act) and similar arrangements (including on a total return basis),
and sales and other transactions through non-US broker dealers or foreign regulated brokers.
(d) The Investor shall not issue any press release or make any other public announcement
relating to this Agreement unless (i) the content thereof is mutually agreed to by the Company and
the Investor, or (ii) the Investor is advised by its counsel that such press release or public
announcement is required by law. The Investor will timely make all required filings and
disclosures relating to the Investor’s purchase of the Shares as may be required under the Exchange
Act, if any.
(e) The Investor has the requisite power and authority to enter into and to consummate the
transactions contemplated by this Agreement and otherwise to carry out its obligations hereunder.
The execution and delivery of this Agreement by the Investor and the consummation by it of the
transactions contemplated hereunder have been duly authorized by all necessary action on the part
of the Investor. This Agreement has been duly executed by the Investor and, when delivered in
accordance with the terms hereof, will constitute the valid and binding obligation of the Investor
enforceable against the Investor in accordance with its terms, except as may be limited by any
bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or other similar laws
affecting the enforcement of creditors’ rights generally or by general principles of equity.
(f) The Investor understands that nothing in this Agreement or any other materials presented
to the Investor in connection with the purchase or sale of the Shares constitutes legal, tax or
investment advice. The Investor has consulted such legal, tax or investment advisors as it, in its
sole discretion, deems necessary or appropriate in connection with its purchase of the Shares.
(g) The Investor hereby acknowledges that it is acting independently from any other investor
(and has engaged separate legal counsel) in connection with the Offering, and that it is not acting
as a member of a “group” (as such term is defined in Rule 13d of the Exchange Act) with any other
investor in connection with the Offering.
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(h) The Investor hereby acknowledges that the Company will pay a placement agent fee to the
Placement Agent of six percent (6%) of the gross proceeds of the Offering.
7. Subject to the provisions of this Section 7, the Company will indemnify and hold the
Investor and its directors, officers, shareholders, partners, members, employees and agents (each,
an “Investor Party”) harmless from any and all losses, liabilities, obligations, claims,
contingencies, damages, costs and expenses, including all judgments, amounts paid in settlements,
court costs and reasonable attorneys’ fees and costs of investigation that any such Investor Party
may suffer or incur (the “Indemnified Liabilities”) as a result of or relating to any
breach of any of the representations, warranties, covenants or agreements made by the Company in
this Agreement. The Company shall not be liable to any Investor under this provision in respect of
any Indemnified Liability if such liability arises out of any misrepresentation by the Investor in
Section 6 of this Agreement or actions taken by such Investor otherwise than as explicitly set
forth herein. To the extent that the foregoing undertaking by the Company may be unenforceable for
any reason, the Company shall make the maximum contribution to the payment and satisfaction of each
of the Indemnified Liabilities which is permissible under applicable law. If any action shall be
brought against any Investor Party in respect of which indemnity may be sought pursuant to this
Agreement, such Investor Party shall promptly notify the Company in writing, and the Company shall
have the right to assume the defense thereof with counsel of its own choosing. Any Investor Party
shall have the right to employ separate counsel in any such action and participate in the defense
thereof (it being understood, however, that the Company shall not be liable for the expenses of
more than one separate counsel (other than local counsel), reasonably approved by the Company), but
the fees and expenses of such counsel shall be at the expense of such Investor Party except to the
extent that (i) the employment thereof has been specifically authorized by the Company in writing,
(ii) the Company has failed after a reasonable period of time to assume such defense and to employ
counsel or (iii) in such action there is, in the reasonable opinion of such separate counsel, a
material conflict on any material issue between the position of the Company and the position of
such Investor Party. The Company will not be liable to any Investor Party under this Section 7 for
any settlement by an Investor Party effected without the Company’s prior written consent, which
shall not be unreasonably withheld or delayed.
8. The Company shall, by 9:00 a.m. (New York City time) on the day immediately following the
date hereof, issue a press release, disclosing the material terms of the transactions contemplated
hereby.
9. Notwithstanding any investigation made by any party to this Agreement or by the Placement
Agent, all covenants, agreements, representations and warranties made by the Investor herein will
survive the execution of this Agreement, the delivery to the Investor of the Shares being purchased
and the payment therefor. The Placement Agent shall be a third party beneficiary with respect to
covenants, agreements, representations and warranties of the Investor contained in this Agreement.
10. This Agreement shall be governed by, and construed in accordance with, the internal laws
of the State of New York, without giving effect to the principles of conflicts of law.
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11. The Company confirms that its has not provided Investor, in the course of its review of
the Company, with any information that the Company believes constitutes material non-public
information.
12. This Agreement may be executed in two or more counterparts, each of which shall constitute
an original, but all of which, when taken together, shall constitute but one instrument, and shall
become effective when one or more counterparts have been signed by each party hereto and delivered
to the other parties.
[Signature Page Follows]
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IN WITNESS WHEREOF, the Investor and the Company have caused this Common Stock Purchase
Agreement to be duly executed as of the date first written above.
| “COMPANY” | ||||||
| SUPERCONDUCTOR TECHNOLOGIES INC. | ||||||
| By: | ||||||
| Name: | Xxxxxxx X. Xxxxxx | |||||
| Title: | President and CEO | |||||
| “INVESTOR” | ||||||
| By: | ||||||
| Name: | ||||||
| Title: | ||||||
Signature Page to Common Stock Purchase Agreement
EXHIBIT A
SUPERCONDUCTOR TECHNOLOGIES, INC.
INVESTOR QUESTIONNAIRE
Pursuant to Section 6 of the Agreement, please provide us with the following information:
1.
|
Exceptions to the representations and warranties made in Section 6(b) (If no exceptions, write “none.” If left blank, response will be deemed to be “none.”): | |
2.
|
The exact name that your Shares are to be registered in. You may use a nominee if appropriate: | |
3.
|
The relationship between the Investor and the registered holder listed in response to item 2 above (if not the same person): | |
4.
|
The mailing address of the registered holder listed in response to item 2 above: | |
5.
|
The Social Security Number or Tax Identification Number of the registered holder listed in response to item 2 above: | |
6.
|
Name of DTC Participant (broker-dealer at which the account or accounts to be credited with the Shares are maintained); please include the name and telephone number of the contact person at the broker-dealer: | |
7.
|
DTC Participant Number: | |
8.
|
Name of Account at DTC Participant being credited with the Shares: | |
9.
|
Account Number at DTC Participant being credited with the Shares: | |
Exhibit A to Common Stock Purchase Agreement
