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Exhibit 10.3
AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
Amended and Restated Registration Rights Agreement
("Agreement") dated March 16, 1994, among Nanophase Technologies Corporation,
an Illinois corporation (with its successors and assigns, called the
"Company"), and the persons listed as Holders on the signature pages of a
counterpart of this Agreement.
Capitalized terms used in this Agreement and not otherwise
defined are defined in Section 11 of this Agreement.
PRELIMINARY STATEMENT
The Company and the Holders have previously entered into that
certain Registration Rights Agreement dated as of November 21, 1991, as amended
by a First Amendment to Registration Rights Agreement dated February 8, 1993
(collectively, the "Original Agreement").
Concurrently with the execution of this Agreement, the Company
and certain of the Holders propose to execute a Series D Preferred Stock
Purchase Agreement (the "Series D Purchase Agreement") pursuant to which
certain of the Holders will purchase additional securities of the Company. To
induce such Holders to execute the Series D Purchase Agreement, the Company and
the Holders agree to amend and restate the Original Agreement as follows.
AGREEMENT
Section 1. Required Registrations.
1.1 (a) The Holders of Preferred and Registrable Common
equivalent to more than 60% of the Registrable Common may, by a written notice
to the Company, request that the Company register any Registrable Common
specified in the notice, under the Securities Act on a form other than a Short
Form and under other relevant securities laws, for disposition in accordance
with methods stated in the notice. Such notice may specify an underwriter for
such registration.
1.2 When it receives a registration notice under Section
1.1, the Company shall, within three (3) days, deliver a copy of such
registration notice to each Holder of Convertible Securities or Registrable
Common who is not a party to the registration notice, each of whom may then
specify, by written notice to the Company delivered within fifteen (15) days of
receipt of the notice from the Company, a number of shares of Registrable
Common held by it which it wishes to include in any registration pursuant to
the registration notice under Section 1.1.
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1.3 When it receives a registration notice under Section 1.1,
the Company will expeditiously cause a registration statement to be filed, and
use its best efforts to cause such registration statement to become effective
under the Securities Act for the Registrable Common specified in the
registration notice under Section 1.1 and subsequent notices under Section 1.2
to permit disposition by such Holders in accordance with the methods of
disposition described in the registration notice.
Section 2. Registrations on Short Forms.
2.1 If at any time the Company is a registrant entitled to
use a Short Form to register Registrable Common, one or more Holders may, by a
written notice to the Company, request that the Company register Registrable
Common specified in the notice on a Short Form.
2.2 When it receives a Short Form registration notice under
Section 2.1, the Company shall, within three (3) days, deliver a copy of such
registration notice to each Holder of Convertible Securities or Registrable
Common, who is not a party to such registration notice, each of whom may then
specify, by written notice to the Company delivered within fifteen (15) days of
receipt of the notice from the Company, a number of shares of Registrable
Common held by it that it wishes to include in any registration pursuant to the
registration notice under Section 2.1 hereof.
2.3 When it receives a notice under Section 2.1, and
provided that the reasonably anticipated price to the public of the Registrable
Common proposed to be registered by all sellers of such Registrable Common
would total more than $500,000, the Company will expeditiously cause a
registration statement to be filed, and use its best efforts to cause such
registration statement to become effective under the Securities Act on the
Short Form specified in the notice for the Registrable Common specified in the
registration notice under Section 2.1 and subsequent notices under Section 2.2.
Section 3. Incidental Registration. Each time the
Company proposes to register any of its Securities under the Securities Act, it
will give written notice of its intention to do so to each Holder, which notice
shall identify the proposed underwriter for such offering. Each Holder may
then specify, by written notice to the Company delivered within fifteen (15)
days of receipt of notice from the Company, a number of shares of Registrable
Common held by it which it wishes to include in the Company's proposed
registration. If at least 50% of the shares to be registered in such offering
are held by Holders of Preferred or Registrable Common, then such Holders shall
have the right to approve the underwriter (voting as a group, based upon the
number of shares of Registrable Common held by each to be included in such
offering), which approval shall not be unreasonably withheld. Subject to the
limitations of Section 8, the Company will use its best efforts to effect the
registration under the Securities Act of Registrable Common specified by
Holders under this Section 3.
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Section 4. Limitations on Registration Rights.
Notwithstanding any contrary provision of this Agreement:
A. the Company shall not be required to effect more than
one registration pursuant to Section 1 (for purposes of this Section
4.A., a registration shall not be deemed "effective" unless the
registration statement is declared effective by the Commission); and
B. Section 3 shall not apply to a registration effected
solely to implement an employee benefit plan or to any other form or
type of registration which does not permit inclusion of Registrable
Common pursuant to Commission rule or practice; and
C. if the registration notice under Section 1 would
result in the first offering of the Company's Securities to the
public, then the registration specified under Section 1.1 must be for
an underwritten public offering to be managed by an underwriter of
recognized national standing reasonably acceptable to the Company and
shall be for a minimum of $10,000,000, at a price of not less than
$3.00 per share, as adjusted for stock splits, stock dividends and
other similar events; and
D. the Company shall not be obligated to effect a
registration pursuant to Section 1 during the period starting with the
date thirty days prior to the Company's estimated date of filing of,
and ending on a date six months following the effective date of, a
registration pertaining to an underwritten public offering of
securities for the account of the Company, provided that the Company
is actively employing in good faith all reasonable efforts to cause
such registration statement to become effective and that the Company's
estimates of the date of filing of such registration statement is made
in good faith; and
E. if (a) there is material non-public information
regarding the Company which the Board reasonably determines not to be
in the Company's best interest to disclose and which the Company is
not otherwise required to disclose, or (b) there is a significant
business opportunity available to the Company which the Board
reasonably determines not to be in the Company's best interest to
disclose, or (c) there is a significant business opportunity available
to the Company and the Board reasonably determines that the Company's
ability to pursue such opportunity would be materially and adversely
affected by a registered public offering of the Company's Securities,
then the Company may postpone filing a registration statement
requested pursuant to Sections 1 or 2 for a period not to exceed 90
days, provided that the Company may not postpone its obligations as
permitted under this Section 4.E. more than once every 12 months.
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Section 5. Registration Procedures.
5.1 Whenever the Company is required by the provisions of
this Agreement to effect the registration of any Registrable Common under the
Securities Act, the Company will, as expeditiously as possible:
A. in the case of a registration required under Section
1, engage the underwriters designated by the Holders giving notice
under Section 1.1 or in the case of an incidental registration under
Section 3, the underwriter specified in the notice given to the
Holders and approved by the Holders;
B. before filing each registration statement or
prospectus or amendment or supplement thereto with the Commission,
furnish counsel for the Holders of Registrable Common included in such
registration with copies of all such documents proposed to be filed
which shall be subject to the reasonable approval of such counsel;
C. prepare and file with the Commission a registration
statement with respect to such Registrable Common and use its best
efforts to cause such registration statement to become and remain
effective for such period as may be reasonably necessary to effect the
sale of such securities, not to exceed nine months;
D. prepare and file with the Commission (and any
exchange on which the Company's Securities may be or are proposed to
be listed and with the National Association of Securities Dealers,
Inc.) 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 such period and to
comply with the provisions of the Securities Act with respect to the
sale or other disposition of all Registrable Common covered by such
registration statement in accordance with the intended methods of
disposition set forth in such registration statement, but only to the
extent provided in this Section 5;
E. prepare and promptly file with the Commission, and
notify each seller of such Registrable Common as expeditiously as
possible of the necessity for and the filing of, such amendment or
supplement to such registration statement or prospectus as may be
necessary to correct any statements or omissions if, during such
periods as a prospectus relating to such securities is required to be
delivered under the Securities Act, any event shall have occurred as
the result of which any such prospectus or any other prospectus as
then in effect would include an untrue statement of a material fact or
omit to state any material fact necessary to make the statements
therein, in the light of the circumstances in which they were made,
not misleading;
F. furnish to the underwriters and each seller of such
Registrable Common such numbers of copies of such registration
statement, each amendment and supplement thereto, the prospectus
included in such registration statement (including
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each preliminary prospectus) and such other documents as such
underwriters or sellers may reasonably request in order to facilitate
the disposition of the Registrable Common subject to such registration
statement in accordance with such registration statement;
G. use its best efforts to register or qualify any
Registrable Common covered by such registration statement under the
securities or blue sky laws of such jurisdictions within the United
States of America as the seller or the underwriters reasonably
request, and to take any other acts which a seller or the underwriters
may reasonably request under such securities or blue sky laws to
enable the consummation of the disposition in such jurisdictions of
such Registrable Common (provided, however, that the Company may not
be required under this Agreement (i) to qualify generally to do
business as a foreign corporation in any jurisdiction in which it
would not otherwise be required to qualify, or (ii) to subject itself
to taxation in any such jurisdiction, or (iii) to consent to general
service of process in any such jurisdiction);
H. provide a transfer agent and registrar for all
Registrable Common sold under the registration not later than the
effective date of the registration statement;
I. cause all Registrable Common sold under the
registration to be listed on a recognized securities exchange, if any,
or to become eligible for trading on any over-the-counter trading
system, on which similar securities issued by the Company are then
listed or traded;
J. enter into such customary agreements (including
underwriting agreements in customary form) and take all such other
actions as the underwriters, if any, or the Holders of a Majority of
the Registrable Common being sold reasonably request in order to
expedite or facilitate the disposition of such Registrable Common
(including, without limitation, effecting a stock split or a
combination of shares);
K. make available for inspection by the sellers of
Registrable Common, any underwriter participating in any disposition
pursuant to such registration statement, and any attorney, accountant
or other agent retained by any such seller or underwriter, all
financial and other records, pertinent corporate documents and
properties of the Company, and cause the Company's officers,
directors, employees and independent accountants to supply all
information reasonably requested by any such seller or underwriter in
connection with such registration statement, all subject to such
limitations as the Company reasonably deems appropriate in order to
protect the Company's confidential or proprietary information; and
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L. advise each seller of Registrable Common, immediately
after it shall receive notice or obtain knowledge thereof, of the
issuance of any stop order by the Commission suspending the
effectiveness of such registration statement or the initiation or
threatening of any proceeding for such purpose and promptly use
reasonable efforts to prevent the issuance of any stop order or to
obtain its withdrawal if such stop order should be issued.
5.2 It shall be a condition precedent to the inclusion of
the Registrable Common of any Holder in a registration effected pursuant to
this Agreement that such Holder shall furnish to the Company such information
regarding such Holder, the Registrable Common of such Holder to be registered
and the intended method of disposition of such Registrable Common, and shall
execute such indemnities with respect to such information provided by such
Holders, underwriting agreements and other documents, as the Company shall
reasonably request in order to satisfy the requirements applicable to such
registration.
Section 6. Expenses. The Company shall pay all expenses
incurred in effecting the registration of Registrable Common provided for in
this Agreement, including, without limitation, all registration and filing
fees, printing expenses, listing fees, fees and disbursements of counsel for
the Company, reasonable fees and disbursements of a single counsel for the
sellers selected by the Holders of a majority of the Registrable Common subject
to such registration, underwriting expenses other than discounts and
commissions, expenses of any audits incident to or required by any such
registration and expenses of complying with the securities or blue sky laws of
any jurisdictions pursuant to Section 5.1G hereof. Notwithstanding the
foregoing, if a registration is requested by a single Holder pursuant to
Section 1.1(b), and no other Holder elects to have any shares owned by it
included in such registration, then the Holder requesting such registration
shall pay all of the expenses incurred in connection with such registration.
Section 7. Indemnification.
7.1 In the event of any registration of any of its
Registrable Common under the Securities Act pursuant to this Agreement, the
Company agrees, to the extent permitted by law, to indemnify and hold harmless
each seller of such Registrable Common, each partner in, or director and
officer of, each such seller, and each other person, if any, who controls
(within the meaning of the Securities Act) such seller against any losses,
claims, damages or liabilities, joint or several, arising out of or based upon:
(1) any alleged untrue statement of any material fact
contained in any registration statement under which such Securities
were registered under the Securities Act, any preliminary prospectus
or final prospectus contained therein, or any summary prospectus
contained therein, or any amendment or supplement to any such
registration statement or prospectus, or
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(2) any alleged omission to state in any such document a
material fact required to be stated therein or necessary to make the
statements therein not misleading, except, with respect to any seller,
insofar as any such loss, claim, damage or liability is:
(a) caused by or contained in any information furnished in
writing to the Company by such seller expressly for use in connection
with such registration, or
(b) caused by such seller's failure to deliver a copy of the
registration statement or prospectus or any amendment or supplement
thereto as required by the Securities Act or the rules or regulations
thereunder, or
(c) caused by the use of a prospectus or preliminary
prospectus or any amendment or supplement thereto by such seller after
receipt of notice from the Company that it should no longer be used.
In connection with an underwritten offering, the Company will indemnify such
underwriters, their officers and directors and each person who controls (within
the meaning of the Securities Act) such underwriters to the same extent as
provided above with respect to the sellers of Registrable Common and as to such
other matters as such underwriters may reasonably request or which are covered
in such underwriters' customary form of underwriters' agreement. The Company
shall reimburse each person indemnified pursuant to this Section 7.1 in
connection with investigating or defending any loss, claim, damage, liability
or action indemnified against. The reimbursements required by this Section 7.1
shall be made by periodic payments during the course of the investigation or
defense, as and when bills are received or expenses incurred. The indemnities
provided pursuant to this Section 7.1 shall survive transfer of Registrable
Common by a seller.
7.2 In the event of any registration of any of its
Registrable Common under the Securities Act pursuant to this Agreement, each
Holder agrees to furnish to the Company in writing such information and
affidavits as the Company reasonably requests for use in connection with any
registration statement or prospectus in connection with the registration or any
amendment or supplement thereto and, to the extent permitted by law, agrees
severally and not jointly to indemnify and hold harmless the Company, its
directors and officers, each other seller of securities in such registration,
each partner in, or officer or director of, each such seller, and each person
who controls (within the meaning of the Securities Act) the Company or such
other seller against any losses, claims, damages or liabilities, joint or
several, arising out of or based upon:
(1) any alleged untrue statement of any material fact
contained, on the effective date thereof, in any registration
statement under which such Securities were registered under the
Securities Act, any preliminary prospectus or final prospectus
contained therein, or any summary prospectus contained therein, or any
Securities being registered, or any amendment or supplement thereto,
or
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(2) any alleged omission to state in any such document a
material fact required to be stated therein or necessary to make the
statements therein not misleading,
but only insofar as any such loss, claim, damage or liability is caused by or
contained in any information furnished in writing to the Company by the
indemnifying seller expressly for use in connection with such registration, and
excluding any such loss, claim, damage or liability which is caused by or
contained in such statements, or caused by such omissions, based upon the
authority of an expert as defined in the Securities Act (but only if the
indemnifying seller had no ground to believe, and did not believe, that the
statements made on the authority of an expert were untrue or that there was an
omission to state a material fact. In connection with an underwritten
offering, each seller will indemnify such underwriters, their officers and
directors and each person who controls (within the meaning of the Securities
Act) such underwriters to the same extent as provided above with respect to the
Company and other sellers. Each seller shall reimburse each person indemnified
pursuant to this Section 7.2 in connection with investigating or defending any
loss, claim, damage, liability or action indemnified against. The indemnities
provided pursuant to this Section 7.2 shall survive transfer of Registrable
Common by an indemnifying seller, and transfer of other securities by any other
indemnified seller.
7.3 Indemnification similar to that specified in Sections
7.1 and 7.2 (with such modifications as shall be appropriate) shall be given by
the Company and each Holder of any Registrable Common covered by any
registration or other qualification of Securities under any federal or state
securities law or regulation other than the Securities Act with respect to any
such registration or other qualification effected pursuant to this Agreement.
7.4 In the event the Company or any Holder receives a
complaint, claim or other notice of any loss, claim or damage, liability or
action, giving rise to claim for indemnification under this Section 7, the
person claiming indemnification shall promptly notify the person against whom
indemnification is sought (unless such person is also a party to such
complaint, notice, claim or action) of such complaint, notice, claim or action,
and such indemnifying person shall have the right to investigate and defend any
such loss, claim, damage, liability or action, provided that such indemnifying
person shall not settle any such claim or action unless (i) such settlement is
approved by the person claiming indemnification, or (ii) such settlement
provides for a full, general release from all claims against the person
claiming indemnification. The person claiming indemnification shall have the
right to employ 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 person against whom indemnification is sought and the
indemnifying person shall not be obligated to indemnify any person for any
settlement of any claim or action effected without the indemnifying person's
consent, which consent will not be unreasonably withheld.
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Section 8. Marketing Restrictions.
8.1 If:
A. a registration is to be made pursuant to a
registration notice under Section 1 or Section 2 of this Agreement,
and
B. the offering proposed to be made by the Holder or
Holders for whom such registration is to be made is to be an
underwritten public offering, and
C. the managing underwriters of such public offering
furnish a written opinion that the total amount of Registrable Common
to be included in such offering would exceed the maximum number of
shares of Common (as specified in such opinion) which can be marketed
at a price reasonably related to the current market value of such
Common and without otherwise materially and adversely affecting such
offering,
then the rights of the Holders, of the holders of other Securities having the
right to include Common in such registration and of the Company to participate
in such offering shall be in the following order of priority:
First: the Holders shall be entitled to participate in such
offering to the extent of such maximum number of shares of Common, or
of the aggregate number of shares of Registrable Common that all such
Holders shall have requested be registered, whichever is less, pro
rata among themselves in accordance with the number of shares of
Registrable Common which each such Holder shall have requested be
registered; and then
Second: if such maximum number of shares of Common exceeds
the aggregate number of shares of Registrable Common that all such
Holders shall have requested be registered, the Company and all
holders of other Securities having the right to include such
Securities in such registration shall be entitled to participate in
accordance with the relative priorities, if any, that shall exist
among them and the Company;
and no Securities (issued or unissued) other than those registered and included
in the underwritten offering shall be offered for sale or other disposition by
the Company or any Holder in a transaction which would require registration
under the Securities Act for a period beginning thirty (30) days prior to the
anticipated effective date of such registration statement and continuing until
ninety (90) days after the effective date of the registration statement filed
in connection with such registration or such earlier time consented to by the
managing underwriter, but in no event shall such period exceed 120 days. In
the future, the Company shall require each person to whom the Company grants
such rights, as a condition precedent to the effectiveness of such rights, to
agree to be bound by the foregoing restriction on distribution after conclusion
of the underwritten offering.
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8.2 If:
A. any Holder of Preferred or Registrable Common
requests inclusion of Registrable Common in a registration statement
filed by the Company under Section 3 of this Agreement, and
B. the offering proposed to be made is to be an
underwritten public offering, and
C. the managing underwriters of such public offering
furnish a written opinion that the total amount of securities to be
included in such offering would exceed the maximum amount of
Securities (as specified in such opinion) which can be marketed at a
price reasonably related to the then current market value of such
Securities and without materially and adversely affecting such
offering,
then the rights of the Holders, of the holders of other Securities having the
right to include such Securities in such registration and of the Company to
participate in such offering shall be in the following order of priority:
First: the Company; and then
Second: the Holders shall be entitled to participate in such
offering, pro rata among themselves in accordance with the number of
shares of Registrable Common which each such Holder shall have
requested be registered; and then
Third: all other holders (including the Company, if such
registration shall have been requested by a person other than the
Company) of Securities having the right to include such Securities in
such registration shall be entitled to participate in accordance with
the relative priorities, if any, that shall exist among them;
and no Securities (issued or unissued) other than those registered and included
in the underwritten offering shall be offered for sale or other disposition by
the Company or any Holder in a transaction which would require registration
under the Securities Act for a period beginning thirty (30) days prior to the
anticipated effective date of such registration statement and continuing until
ninety (90) days after the effective date of the registration statement filed
in connection with such registration or such earlier time consented to by the
managing underwriter, but in no event shall such period exceed 120 days.
8.3 In connection with any offering involving an
underwriting of Registrable Common pursuant to Section 3 of this Agreement, the
Company shall not be required to include any of the Registrable Common of a
Holder in such offering unless such Holder agrees to the terms of the
underwriting agreed to between the Company and the underwriter or underwriters
selected by the Company, provided that no such agreement shall add to the
indemnities or affect the priorities set forth in this Agreement.
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Section 9. Sale of Preferred to Underwriter.
Notwithstanding anything in this Agreement to the contrary, in lieu of
converting any Preferred to Common prior to or simultaneously with the filing
or the effectiveness of any registration statement filed pursuant to this
Agreement, the Holder of such Preferred may sell such Preferred to the
underwriter of the offering being registered upon the undertaking of such
underwriter to (i) convert such Preferred into Common before making any
distribution pursuant to such registration statement, and (ii) include such
Common among the Securities being offered pursuant to such registration
statement. The Company agrees to cause the Common issuable on conversion of
such Preferred to be issued within such time as will permit the underwriter to
make and complete the distribution contemplated by the underwriting and to
register the Preferred in any registration statement so that the Holder may
make the sale described in the first sentence of this Section 9.
Section 10. Lockup Agreement. Each Holder and the
Company agrees in connection with any registration of any of the Company's
Securities that, upon the request of the Company or the underwriters managing
any underwritten offering of the Company's Securities, he or it will not sell,
make any short sale of, loan, grant any option for the purchase of, or
otherwise dispose of any Securities of the Company (other than the Securities
included in the registration) without the prior written consent of the Company
or such underwriters, as the case may be, for such period of time beginning
thirty (30) days prior to the anticipated effective date of such registration
statement and continuing until ninety (90) days after the effective date of
such registration statement, but in no event shall such period exceed one
hundred and twenty (120) days.
Section 11. Definitions. As used in this Agreement, the
following terms shall have the following meanings:
"Board" means the Board of Directors of the Company.
"Commission" means the Securities and Exchange Commission, and any
successor thereto.
"Common" means the Company's common stock, no par value.
"Convertible Securities" means the Preferred and any other Security of
the Company which is convertible or exchangeable for Common.
"Holders" means the parties listed on the signature pages hereof, and
any subsequent legal or beneficial owner of Preferred or Registrable Common who
has become a party to this Agreement in accordance with Section 12 hereof.
"Preferred" means, collectively, the Company's Series A Preferred
Stock, Series B Preferred Stock, Series C Preferred Stock, Series C-1 Preferred
Stock, Series D Preferred Stock and Series D-1 Preferred Stock, each having no
par value.
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"Registrable Common" means at any time (i) any shares of Common then
outstanding which were issued upon conversion of Preferred; and (ii) any shares
of Common then issuable upon conversion of then outstanding Preferred; and
(iii) any shares of Common then outstanding which were issued as, or were
issued directly or indirectly upon the conversion or exercise of other
Securities issued as, a dividend or other distribution with respect to, or in
replacement of, Preferred or other Registrable Common; (iv) any shares of
Common then issuable directly or indirectly upon the conversion or exercise of
other Securities issued as a dividend or other distribution with respect to, or
in replacement of, Preferred or other Registrable Common, and (v) any shares of
Common then outstanding which were issued upon exercise of any Warrant, and any
shares of Common then issuable upon exercise of any Warrant. For purposes of
determining the equivalent of a given amount of Registrable Common, a person
will be deemed to be the holder of Registrable Common then issuable but not
actually issued whenever such person has the then-existing right (by conversion
or otherwise) to acquire such Registrable Common, even though such acquisition
has not actually been effected.
"Securities" means any debt or equity securities of the Company,
whether now or hereafter authorized, and any instrument convertible or
exchangeable for any such debt or equity securities. "Security" means one of
the Securities.
"Securities Act" means the Securities Act of 1933, as amended prior to
or after the date of this Agreement, or any federal statute or statutes which
shall be enacted to take the place of such Act, together with all rules and
regulations promulgated thereunder.
"Short Form" means Form S-2 or Form S-3 under the Securities Act, and
any other form promulgated after the date of this Agreement applicable in
circumstances substantially comparable to either of those forms, regardless of
its designation.
"Warrant" means any one of those certain warrants of the Company
previously purchased pursuant to that certain Series C Preferred Stock and
Warrant Purchase Agreement dated February 8, 1993, by and among the Company and
the other parties thereto.
Section 12. Assignability of Registration Rights. The
rights set forth in this Agreement shall accrue to each subsequent holder of
Preferred or Registrable Common who shall have executed a written consent after
becoming the holder of such Securities agreeing to be bound by the terms and
conditions of this Agreement as a party to this Agreement.
Section 13. Termination of Registration Rights.
Notwithstanding any contrary provision of this Agreement, the rights to
registration granted under this Agreement shall terminate as to any particular
Registrable Common when such Registrable Common shall have been (i) effectively
registered under the Securities Act and sold by the holder thereof in
accordance with such registration, or (ii) sold to the public pursuant to Rule
144 of the Commission, or any successor rule.
Nanophase - Amended and Restated RRA
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Section 14. Miscellaneous.
14.1 Amendment. Any provision of this Agreement may be
amended by a written agreement signed by all of the following:
(a) the Company, and
(b) the Holders of Preferred and Registrable Common
equivalent to more than 67% of the Registrable Common.
Notwithstanding the foregoing, no amendment shall confer any
greater rights, or impose any additional restrictions, on any shares of
Preferred as compared to any other shares of Preferred, or any shares of Common
as compared to any other shares of Common, or any Holder as compared to any
other Holder, with the consent of the Holders of Preferred and Registrable
Common equivalent to 100% of the Registrable Common.
14.2 Severability. In the event that any court or any
governmental authority or agency declares all or any part of any Section of
this Agreement to be unlawful or invalid, such unlawfulness or invalidity shall
not serve to invalidate any other Section of this Agreement, and in the event
that only a portion of any Section is so declared to be unlawful or invalid,
such unlawfulness or invalidity shall not serve to invalidate the balance of
such Section.
14.3 Notices. All communications in connection with this
Agreement shall be in writing and shall be deemed properly given if hand
delivered, sent by telecopy or facsimile transmission, with confirmation by the
recipient, or sent by registered or certified mail, return receipt requested,
and, if to a Holder, addressed to the persons and at such addresses as are set
forth below such Holder's name on the signature pages to this Agreement or, if
no such person or address appears, at such Holder's address as shown on the
books of the Company or its transfer agent, and if to the Company, at:
Nanophase Technologies Corporation
0000 X Xxxx Xxxxxx, Xxxxx 000
Xxxxxx, Xxxxxxxx 00000
Telecopy No. (000) 000-0000
or to such other persons or addresses as the recipient shall have specified by
a notice delivered to the Company (if the recipient is a Holder) or by a notice
delivered to each Holder (if the recipient is the Company) in accordance with
the terms of this Section. Any notice called for hereunder shall be deemed
given when received.
14.4 Governing Law. This Agreement shall be governed by
and construed in accordance with the laws of the State of Illinois applicable
to agreements between Illinois residents entered into and to be performed
entirely within Illinois.
Nanophase - Amended and Restated RRA
Page 13
14
14.5 Counterparts. This Agreement may be executed in two
or more counterparts, each which shall be deemed an original but all of which
shall together constitute one and the same instrument.
14.6 Heading. The headings used herein are solely for the
convenience of the parties and shall not serve to modify or interpret the text
of the Sections at the beginning of which they appear.
14.7 Remedies. Each of the parties confirms that damages at
law may not be an adequate remedy for a breach or threatened breach of this
Agreement, and agrees that in the event of a breach or threatened breach of any
of the provisions hereof, the respective rights and obligations of the parties
hereunder shall be enforceable by specific performance, injunction or other
equitable remedy. Nothing contained in this Section 14.7 shall limit any
party's right to seek or obtain any and all remedies available to such party,
whether at law, by statute or otherwise.
END OF TEXT
***********************
Nanophase - Amended and Restated RRA
Page 14
15
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed on the day first above written.
The Company: NANOPHASE TECHNOLOGIES CORPORATION,
an Illinois corporation
By __________________________________
Its President
Holders: ARCH VENTURE FUND LIMITED PARTNERSHIP,
a Delaware limited partnership
By: ARCH Development Corporation, an
Illinois not-for-profit corporation,
its General Partner
By: __________________________________
Its ___________________
ARCH VENTURE FUND II, L.P., a Delaware limited
partnership
By: ARCH MANAGEMENT PARTNERS II, L.P.
a Delaware limited partnership, its general
partner
By: ARCH Venture Partners, L.P., a
Delaware limited partnership,
its general partner
By: Lifework, Inc., an Illinois
corporation, its general
partner
By: ______________________
Its Managing Director
XXXXXXXXX, XXXXXXX & XXXX, X.X., a Delaware limited
partnership
By: _______________________________________
Xxxxxxx X. Xxxxxxxxx, its Managing General
Partner
16
UVCC FUND II, a Delaware general
partnership
By: Arete Venture Management Associates
II, L.P. its Managing General Partner
By: Arete Ventures, Inc., a Maryland
corporation, its general partner
By: ______________________________
Xxxxxx X. Xxxx, Xx., President
UVCC II PARALLEL FUND, L.P., a Delaware
limited partnership
By: Arete Ventures L.P. III, General Partner
By: Arete Ventures, Inc., a Maryland
corporation, its general partner
By: ____________________________
Xxxxxx X. Xxxx, Xx., President
THE COLUMBINE VENTURE FUND II, a Delaware partnership
By: Columbine Venture Management II, its general
partner
By: _________________________________
Its General Partner
ADVANCE MATERIAL TECHNOLOGIES VENTURE PARTNER LIMITED,
a Delaware partnership
By: _______________________________________
Xxx X. Xxxxxxxxxx, a General Partner
17
JHAM LIMITED PARTNERSHIP, a Delaware
partnership
By: _______________________________________
Xxx X. Xxxxxxxxxx, a General Partner
AMT CAPITAL, LTD., a Delaware corporation
By: AMT Capital, Inc., its general partner
By: ________________________________
Xxx X. Xxxxxxxxxx, President
ILLINOIS DEPARTMENT OF COMMERCE AND COMMUNITY AFFAIRS
By: _________________________________
Its Director
___________________________________________
XXXXXXX X. XXXXXX
18
FIRST AMENDMENT TO
AMENDED AND RESTATED
REGISTRATION RIGHTS AGREEMENT
First Amendment to Amended and Restated Registration Rights Agreement
dated as of April 22, 1996 (this "Amendment"), among NANOPHASE TECHNOLOGIES
CORPORATION, an Illinois corporation (the "Company"), and the persons executing
a counterpart of this Amendment listed as holders on the signature pages to
this Amendment (the "Holders").
PRELIMINARY STATEMENT
The Company and the Holders have previously entered into that
certain Amended and Restated Registration Rights Agreement dated as of March
16, 1994 (the "Registration Rights Agreement").
Concurrently with the execution of this Amendment, the Company
and certain investors (the "Investors") have executed a Series E Preferred
Stock Purchase Agreement (the "Series E Purchase Agreement") pursuant to which
the Investors are purchasing securities of the Company.
To induce the Investors to execute the Series E Purchase
Agreement, the Company and the Holders agree as follows.
AGREEMENT
1. Amendments. The Company and the Holders agree that:
(a) The definition of "Preferred" in Section 11 of the
Registration Rights Agreement is hereby amended and restated in its entirety to
read as follows:
"Preferred" means, collectively, the Company's Series
A Preferred Stock, Series B Preferred Stock, Series C
Preferred Stock, Series C-1 Preferred Stock, Series D
Preferred Stock, Series D-1 Preferred Stock, and Series E
Preferred Stock, each having no par value; and
(b) The address of the Company in Section 14.3 of the
Registration Rights Agreement is hereby amended and restated in its entirety to
read as follows:
Nanophase Technologies Corporation
000 Xxxxxxxx Xxxxxx
Xxxx Xxxxx, Xxxxxxxx 00000
Telecopy No. (000) 000-0000
19
2. Continuing Effect. Except as otherwise specifically provided in
this Amendment, the Registration Rights Agreement shall remain in full force
and effect in accordance with its terms. This Amendment may be executed in
multiple counterparts, all of which shall constitute one and the same
instrument.
END OF TEXT
*******************
page 2
20
IN WITNESS WHEREOF, the parties hereto have caused this First
Amendment to Amended and Restated Registration Rights Agreement to be executed
on the day first above written.
The Company: NANOPHASE TECHNOLOGIES CORPORATION, an
Illinois corporation
By _____________________________
Its President
Holders: ARCH VENTURE FUND LIMITED PARTNERSHIP, a
Delaware limited partnership
By: ARCH Development Corporation
an Illinois not-for-profit
corporation, its General Partner
By: ____________________________
Its ________________________
ARCH VENTURE FUND II, L.P., a Delaware limited
partnership
By: ARCH MANAGEMENT PARTNERS II, L.P.
a Delaware limited partnership, its general
partner
By: ARCH Venture Partners, L.P., a
Delaware limited partnership,
its general partner
By: ARCH Venture Corporation, an
Illinois corporation, its
general partner
By: ______________________
Its Managing Director
Page 3
21
ARCH II PARALLEL FUND, L.P., a Delaware limited
partnership
By: ARCH MANAGEMENT PARTNERS II, L.P.
a Delaware limited partnership, its general
partner
By: ARCH Venture Partners, L.P., a
Delaware limited partnership,its
general partner
By: ARCH Venture Corporation, an
Illinois corporation, its
general partner
By: ______________________
Its Managing Director
XXXXXXXXX, XXXXXXX & XXXX, X.X., a Delaware limited
partnership
By: __________________________________
Xxxxxxx X. Xxxxxxxxx, its Managing General Partner
THE COLUMBINE VENTURE FUND II, a Delaware partnership
By: Columbine Venture Management II,
its General Partner
By: _________________________
Its _______________________
UVCC FUND II, a Delaware general partnership
By: Arete Venture Management Associates II, L.P.,
its Managing General Partner
By: Arete Ventures, Inc., a Maryland corporation,
its general partner
By: ______________________________
Xxxxxx X. Xxxx, Xx., President
Page 4
22
UVCC II PARALLEL FUND, L.P., a Delaware
limited partnership
By: Arete Ventures L.P. III, General Partner
By: Arete Ventures, Inc., a Maryland corporation,
its general partner
By:______________________________
Xxxxxx X. Xxxx, Xx., President
ADVANCE MATERIAL TECHNOLOGIES VENTURE PARTNER LIMITED,
a Delaware partnership
By: _________________________
A General Partner
JHAM LIMITED PARTNERSHIP, a Delaware limited partnership
By: _________________________
A General Partner
AMT CAPITAL, LTD., a Delaware corporation
By: AMT Capital, Inc., its general partner
By: ________________________________
Xxx X. Xxxxxxxxxx, President
ILLINOIS DEPARTMENT OF COMMERCE AND COMMUNITY AFFAIRS
By: _________________________________
Its Director
___________________________________
XXXXXXX X. XXXXXX
Nanophase - First Amendment to RRA Page 5
23
XXXXXX & XXXXXX GROUP, INC., a New York corporation
By:________________________________________
Its:_______________________________________
GRACE INVESTMENTS, LTD., an Illinois limited partnership
By:________________________________________
Its:_______________________________________
Nanophase - First Amendment to RRA Page 6
24
SECOND AMENDMENT TO
AMENDED AND RESTATED
REGISTRATION RIGHTS AGREEMENT
Second Amendment to Amended and Restated Registration Rights Agreement
dated as of June 30, 1997 (this "AMENDMENT"), among NANOPHASE TECHNOLOGIES
CORPORATION, an Illinois corporation (the "COMPANY"), and the persons executing
a counterpart of this Amendment listed as holders on the signature pages to
this Amendment (the "HOLDERS").
PRELIMINARY STATEMENT
The Company and the Holders have previously entered into that certain
Amended and Restated Registration Rights Agreement dated as of March 16, 1994
(the "AGREEMENT"), as amended pursuant to that certain First Amendment to
Amended and Restated Registration Rights Agreement dated as of April 22, 1996
(the "FIRST AMENDMENT", and together with the Agreement, the "REGISTRATION
RIGHTS AGREEMENT").
Concurrently with the execution of this Amendment, the Company and
certain investors (the "INVESTORS") have executed a Series F Preferred Stock
Purchase Agreement (the "SERIES F PURCHASE AGREEMENT") pursuant to which the
Investors are purchasing securities of the Company.
To induce the Investors to execute the Series F Purchase Agreement,
the Company and the Holders agree as follows.
AGREEMENT
1. Amendments. The Company and the Holders agree that:
(a) Section 10 of the Registration Rights Agreement is
amended and restated in its entirety to read as follows:
"Section 10. Lockup Agreement. Each Holder and the
Company agrees in connection with any registration of any of the
Company's Securities that, upon the request of the Company or the
underwriters managing any underwritten offering of the Company's
Securities, he or it will not sell, make any short sale of, loan,
grant any option for the purchase of, or otherwise dispose of any
Securities of the Company (other than the Securities included in the
registration) without the prior written consent of the Company or such
underwriters, as the case may be, for such period of time beginning
thirty (30) days prior to the anticipated effective date of such
registration statement and continuing until one hundred eighty (180)
days after the effective date of such registration statement, but in
no event shall such period exceed one hundred and twenty (180) days."
(b) The definition of "Preferred" in Section 11 of the
Registration Rights Agreement is hereby amended and restated in its entirety to
read as follows:
"Preferred" means, collectively, the Company's Series
A Preferred Stock, Series B Preferred Stock, Series C
Preferred Stock, Series C-1 Preferred Stock, Series D
Preferred Stock, Series D-1 Preferred Stock, Series E
Preferred Stock, and Series F Preferred Stock, each having no
par value; and
25
(c) The address of the Company in Section 14.3 of the
Registration Rights Agreement is hereby amended and restated in its entirety to
read as follows:
Nanophase Technologies Corporation
000 Xxxxxxxx Xxxxxx
Xxxx Xxxxx, Xxxxxxxx 00000
Telecopy No. (000) 000-0000
2. Continuing Effect. Except as otherwise specifically provided in
this Amendment, the Registration Rights Agreement shall remain in full force
and effect in accordance with its terms. This Amendment may be executed in
multiple counterparts, all of which shall constitute one and the same
instrument.
END OF TEXT
*******************
26
IN WITNESS WHEREOF, the parties hereto have caused this Second
Amendment to Amended and Restated Registration Rights Agreement to be executed
on the day first above written.
The Company: NANOPHASE TECHNOLOGIES CORPORATION, an
Illinois corporation
By _____________________________
Its President
Holders: ARCH VENTURE FUND LIMITED PARTNERSHIP, a
Delaware limited partnership
By: ARCH Development Corporation
an Illinois not-for-profit corporation,
its General Partner
By: ____________________________
Its ________________________
ARCH VENTURE FUND II, L.P., a Delaware
limited partnership
By: ARCH MANAGEMENT PARTNERS II, L.P.
a Delaware limited partnership, its
general partner
By: ARCH Venture Partners,
L.P., a limited
partnership, its general
partner
By: ARCH Venture
Corporation, an
Illinois corporation,
its general partner
By: ________________
Its Managing
Director
ARCH II PARALLEL FUND, L.P., a Delaware
limited partnership
By: ARCH MANAGEMENT PARTNERS II, L.P.
a Delaware limited partnership, its
general partner
By: ARCH Venture Partners, L.P., a
Delaware limited partnership,
its general partner
By: ARCH Venture Corporation,
an Illinois corporation,
its general partner
By: _________________
Its Managing
Director
27
XXXXXXXXX, XXXXXXX & XXXX, X.X., a
Delaware limited partnership
By: __________________________________
Xxxxxxx X. Xxxxxxxxx, its Managing
General Partner
THE COLUMBINE VENTURE FUND II, a
Delaware partnership
By: Columbine Venture Management II,
its General Partner
By: _________________________
Its _____________________
UVCC FUND II, a Delaware general
partnership
By: ARETE VENTURE MANAGEMENT
ASSOCIATES II, L.P.,
its Managing General Partner
By: ______________________________
Xxxxxx X. Xxxx, Xx.
General Partner
UVCC II PARALLEL FUND, L.P., a Delaware
limited partnership
By: ARETE VENTURES L.P. III,
its General Partner
By:______________________________
Xxxxxx X. Xxxx, Xx.
General Partner
ADVANCE MATERIAL TECHNOLOGIES
VENTURE PARTNER LIMITED, a
Delaware partnership
By: _________________________
A General Partner
28
JHAM LIMITED PARTNERSHIP, a Delaware
limited partnership
By: _________________________
A General Partner
AMT CAPITAL, LTD., a Delaware
corporation
By: AMT Capital, Inc., its general
partner
By:_____________________________
Xxx X. Xxxxxxxxxx, President
ILLINOIS DEPARTMENT OF COMMERCE AND
COMMUNITY AFFAIRS
By:_________________________________
Its Director
___________________________________
XXXXXXX X. XXXXXX
XXXXXX & XXXXXX GROUP, INC., a New York
corporation
By:_____________________________________
Its:____________________________________
GRACE INVESTMENTS, LTD., an Illinois
limited partnership
By:_____________________________________
Its:____________________________________
