REGISTRATION RIGHTS AGREEMENT
This REGISTRATION RIGHTS AGREEMENT is made and entered into
as of December 18, 2002 between the investor or investors signatory
hereto (each an "Investor" and together the "Investors") and
Superconductor Technologies Inc., a Delaware corporation (the
"Company") with reference to the following facts:
A. Simultaneously with the execution and delivery of
this Agreement, the Investors are purchasing from the Company,
pursuant to a Securities Purchase Agreement dated the date hereof,
as amended (the "Purchase Agreement"), (i) an aggregate of
21,096,954 shares (the "Shares") of the Company's common stock, par
value $0.001 per share ("Common Stock"), and stock purchase warrants
("Warrants") to purchase 5,274,240 additional shares of Common Stock
(the "Warrant Shares") (terms not defined herein shall have the
meanings ascribed to them in the Purchase Agreement).
B. The Company desires to grant to the Investors the
registration rights set forth herein with respect to the Common
Stock purchased pursuant to the Purchase Agreement and the Warrant
Shares (hereinafter referred to as the "Stock" or "Securities" of
the Company).
NOW, THEREFORE, the parties hereto mutually agree as follows:
1. Registrable Securities. As used herein the term
"Registrable Security" means the Securities until (i) the
Registration Statement has been declared effective by the
Commission, and all Securities have been disposed of pursuant to the
Registration Statement, (ii) all Securities have been sold under
circumstances under which all of the applicable conditions of Rule
144 ("Rule 144") (or any similar provision then in force) under the
Securities Act of 1933, as amended (the "Securities Act") are met,
(iii) all Securities have been otherwise transferred to holders who
may trade such Securities without restriction under the Securities
Act, and the Company has delivered a new certificate or other
evidence of ownership for such Securities not bearing a restrictive
legend or (iv) such time as, in the opinion of counsel to the
Company, all Securities may be sold without any time, volume or
manner limitations pursuant to Rule 144(k) (or any similar provision
then in effect) under the Securities Act. The term "Registrable
Securities" means any and/or all of the securities falling within
the foregoing definition of a "Registrable Security." In the event
of any merger, reorganization, consolidation, recapitalization or
other change in corporate structure affecting the Common Stock, such
adjustment shall be deemed to be made in the definition of
"Registrable Security" as is appropriate in order to prevent any
dilution or enlargement of the rights granted pursuant to this
Agreement.
2. Restrictions on Transfer. Each Investor acknowledges
and understands that prior to the registration of the Securities as
provided herein, the Securities are "restricted securities" as
defined in Rule 144 promulgated under the Securities Act. Each
Investor understands that no disposition or transfer of the
Securities may be made by Investor in the absence of (i) an opinion
of counsel to the Investor, in form and substance reasonably
satisfactory to the Company, that such transfer may be made without
registration under the Securities Act or (ii) such registration.
With a view to making available to the Investors the benefits
of Rule 144 under the Securities Act or any other similar rule or
regulation of the Commission that may at any time permit the
Investors to sell securities of the Company to the public without
registration ("Rule 144"), the Company agrees to:
(a) comply with the provisions of paragraph (c)(1) of Rule
144; and
(b) file with the Commission in a timely manner all reports
and other documents required to be filed with the Commission
pursuant to Section 13 or 15(d) under the Exchange Act by companies
subject to either of such sections, irrespective of whether the
Company is then subject to such reporting requirements.
3. Registration Rights With Respect to the Securities.
3.1 The Company agrees that it will prepare and
file with the Securities and Exchange Commission ("Commission"),
within thirty (30) days after the Closing Date a registration
statement (on Form S-3, or other appropriate registration statement
form) under the Securities Act (the "Registration Statement"), at
the sole expense of the Company (except as provided in Section 3.3
hereof), in respect of the Investors, so as to permit a public
offering and resale of the Securities under the Act by the Investors
as selling stockholders and not as underwriters. The Company shall
use its best efforts to cause such Registration Statement to become
effective within ninety (90) days from the Closing Date. The number
of shares designated in the Registration Statement to be registered
shall include the Shares and Warrant Shares. The Company will
notify the Investors of the effectiveness of the Registration
Statement within one Trading Day of such event.
3.2 The Company will maintain the Registration
Statement or post-effective amendment filed under this Section 3
effective under the Securities Act until the earlier of (i) the date
that none of the Securities covered by such Registration Statement
are or may become issued and outstanding, (ii) the date that all of
the Securities have been sold pursuant to such Registration
Statement, (iii) the date the Investors receive an opinion of
counsel to the Company that the Securities may be sold under the
provisions of Rule 144 without limitation as to volume, (iv) all
Securities have been otherwise transferred to persons who may trade
such shares without restriction under the Securities Act, and the
Company has delivered a new certificate or other evidence of
ownership for such securities not bearing a restrictive legend, or
(v) all Securities may be sold without any time, volume or manner
limitations pursuant to Rule 144(k) or any similar provision then in
effect under the Securities Act in the opinion of counsel to the
Company (the "Effectiveness Period").
3.3 All fees, disbursements and out-of-pocket
expenses and costs incurred by the Company in connection with the
preparation and filing of the Registration Statement under
subparagraph 3.1 and in complying with applicable securities and
Blue Sky laws (including, without limitation, all attorneys' fees of
the Company) shall be borne by the Company. The Investors shall
bear the cost of underwriting and/or brokerage discounts, fees and
commissions, if any, applicable to the Securities being registered
and the fees and expenses of their counsel. The Investors and their
counsel shall have a reasonable period, not to exceed five (5)
trading days, to review the proposed Registration Statement or any
amendment thereto, prior to filing with the Commission, and the
Company shall upon request provide each Investor with copies of any
comment letters received from the Commission with respect thereto
within two (2) trading days of receipt thereof. The Company shall
qualify any of the Securities for sale in such states as any
Investor reasonably designates and shall furnish indemnification in
the manner provided in Section 6 hereof. However, the Company shall
not be required to qualify in any state which will require an escrow
or other restriction relating to the Company and/or the sellers, or
which will require the Company to qualify to do business in such
state or require the Company to file therein any general consent to
service of process. The Company at its expense will supply the
Investors with copies of the applicable Registration Statement and
the prospectus included therein and other related documents in such
quantities as may be reasonably requested by the Investors.
3.4 The Company shall not be required by this
Section 3 to include any Investor's Securities in any Registration
Statement which is to be filed if, in the opinion of counsel to the
Company, the proposed offering or other transfer as to which such
registration is requested is exempt from applicable federal and
state securities laws and would result in all Investors or
transferees obtaining securities which are not "restricted
securities" as defined in Rule 144 under the Securities Act.
3.5 In the event that the Registration Statement
to be filed by the Company pursuant to Section 3.1 above is not
declared effective by the Commission within ninety (90) days from
the Closing Date (a "Registration Default"), then the Company will
pay each Investor as liquidated damages for such failure and not as
a penalty five percent (5%) of the Purchase Price ("Liquidated
Damages Amount"). If the Registration Statement is not declared
effective by the Commission within one hundred twenty (120) days of
Closing, then the Company shall pay each Investor a second
Liquidated Damages Amount. Such payment of the liquidated damages
shall be made to the Investors in cash, within five (5) calendar
days of demand; provided, however, that the payment of such
liquidated damages shall not relieve the Company from its
obligations to register the Securities pursuant to this Section. If
the Company does not remit the payment to the Investors as set forth
above, the Company will pay the Investors reasonable costs of
collection, including attorneys' fees, in addition to the liquidated
damages. The registration of the Securities pursuant to this
provision shall not affect or limit the Investors' other rights or
remedies as set forth in this Agreement.
3.6 No provision contained herein shall preclude
the Company from selling securities pursuant to any Registration
Statement in which it is required to include Securities pursuant to
this Section 3.
3.7 If at any time or from time to time after the
effective date of any Registration Statement, the Company notifies
the Investors in writing of the existence of a Potential Material
Event (as defined in Section 3.8 below), the Investors shall not
offer or sell any Securities or engage in any other transaction
involving or relating to Securities, from the time of the giving of
notice with respect to a Potential Material Event until the
Investors receive written notice from the Company that such
Potential Material Event either has been disclosed to the public or
no longer constitutes a Potential Material Event; provided, however,
that the Company may not so suspend the right to such holders of
Securities for more than thirty (30) days in the aggregate (90 days
in the case of an acquisition requiring the filing of audited
financial statements of the acquired business under Form 8-K) during
any twelve month period, during the period the Registration
Statement is required to be in effect. The Company must, if lawful,
give the Investors notice in writing at least two (2) trading days
prior to the first day of the blackout period.
3.8 "Potential Material Event" means any of the
following: (a) the possession by the Company of material information
not ripe for disclosure in a registration statement, as determined
in good faith by the Chief Executive Officer or the Board of
Directors of the Company that disclosure of such information in a
Registration Statement would be detrimental to the business and
affairs of the Company; or (b) any material engagement or activity
by the Company which would, in the good faith determination of the
Chief Executive Officer or the Board of Directors of the Company, be
adversely affected by disclosure in a registration statement at such
time.
4. Cooperation with Company. The Investors will
cooperate with the Company in all respects in connection with this
Agreement, including timely supplying all information and
confirmations reasonably requested by the Company or the Commission
(which shall include all information regarding the Investors and
proposed manner of sale of the Registrable Securities required to be
disclosed in any Registration Statement) and executing and returning
all documents reasonably requested in connection with the
registration and sale of the Registrable Securities and entering
into and performing their obligations under any underwriting
agreement, if the offering is an underwritten offering, in usual and
customary form, with the managing underwriter or underwriters of
such underwritten offering. Nothing in this Agreement shall
obligate any Investor to consent to be named as an underwriter in
any Registration Statement. The obligation of the Company to
register the Registrable Securities shall be absolute and
unconditional as to those Securities which the Commission will
permit to be registered without naming the Investors as
underwriters. Any delay or delays caused by the Investors by
failure to cooperate as required hereunder shall not constitute a
Registration Default.
5. Registration Procedures. If and whenever the Company
is required by any of the provisions of this Agreement to effect the
registration of any of the Registrable Securities under the Act, the
Company shall (except as otherwise provided in this Agreement), as
expeditiously as possible, subject to the Investors' assistance and
cooperation as reasonably required with respect to each Registration
Statement:
5.1 (a) prepare and file with the Commission such
amendments and supplements to the Registration Statement and the
prospectus used in connection therewith as may be necessary to keep
such Registration Statement effective and to comply with the
provisions of the Securities Act with respect to the sale or other
disposition of all securities covered by such registration statement
whenever the Investors shall desire to sell or otherwise dispose of
the same (including prospectus supplements with respect to the sales
of securities from time to time in connection with a registration
statement pursuant to Rule 415 promulgated under the Securities Act)
and (b) take all lawful action such that each of (A) the
Registration Statement and any amendment thereto does not, when it
becomes effective, contain an untrue statement of a material fact or
omit to state a material fact required to be stated therein or
necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading and (B) the
prospectus forming part of the Registration Statement, and any
amendment or supplement thereto, does not at any time during the
Effectiveness Period include an untrue statement of a material fact
or omit to state a material fact required to be stated therein or
necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading;
5.2 (a) prior to the filing with the Commission of
any Registration Statement (including any amendments thereto) and
the distribution or delivery of any prospectus (including any
supplements thereto), provide draft copies thereof to the Investors
as required by Section 3.3 and reflect in such documents all such
comments as the Investors (and their counsel) reasonably may propose
respecting the Selling Shareholders and Plan of Distribution
sections (or equivalents) and (b) furnish to each Investor such
numbers of copies of a prospectus including a preliminary prospectus
or any amendment or supplement to any prospectus, as applicable, in
conformity with the requirements of the Act, and such other
documents, as such Investor may reasonably request in order to
facilitate the public sale or other disposition of the securities
owned by such Investor;
5.3 register and qualify the Registrable
Securities covered by the Registration Statement under such other
securities or blue sky laws of such jurisdictions as the Investors
shall reasonably request (subject to the limitations set forth in
Section 3.3 above), and do any and all other acts and things which
may be necessary or advisable to enable each Investor to consummate
the public sale or other disposition in such jurisdiction of the
securities owned by such Investor;
5.4 list such Registrable Securities on the
Principal Market, if the listing of such Registrable Securities is
then permitted under the rules of such Principal Market;
5.5 notify each Investor at any time when a
prospectus relating thereto covered by the Registration Statement is
required to be delivered under the Securities Act, of the happening
of any event of which it has knowledge as a result of which the
prospectus included in the Registration Statement, as then in
effect, includes an untrue statement of a material fact or omits to
state a material fact required to be stated therein or necessary to
make the statements therein not misleading in the light of the
circumstances then existing, and the Company shall use its best
efforts to prepare and file a curative amendment under Section 5.1;
5.6 as promptly as practicable after becoming
aware of such event, notify each Investor who holds Registrable
Securities being sold (or, in the event of an underwritten offering,
the managing underwriters) of the issuance by the Commission of any
stop order or other suspension of the effectiveness of the
Registration Statement at the earliest possible time and take all
lawful action to effect the withdrawal, recession or removal of such
stop order or other suspension;
5.7 cooperate with the Investors to facilitate the
timely preparation and delivery of certificates for the Registrable
Securities to be offered pursuant to the Registration Statement and
enable such certificates for the Registrable Securities to be in
such denominations or amounts, as the case may be, as the Investors
reasonably may request and registered in such names as the Investors
may request; and, within five (5) trading days after a Registration
Statement which includes Registrable Securities is declared
effective by the Commission, deliver and cause legal counsel
selected by the Company to deliver to the transfer agent for the
Registrable Securities (with copies to the Investors) an appropriate
instruction and, to the extent necessary, an opinion of such
counsel;
5.8 take all such other lawful actions reasonably
necessary to expedite and facilitate the disposition by the
Investors of their Registrable Securities in accordance with the
intended methods therefor provided in the prospectus which are
customary for issuers to perform under the circumstances;
5.9 in the event of an underwritten offering,
promptly include or incorporate in a prospectus supplement or
post-effective amendment to the Registration Statement such
information as the managers reasonably agree should be included
therein and to which the Company does not reasonably object and make
all required filings of such prospectus supplement or post-effective
amendment as soon as practicable after it is notified of the matters
to be included or incorporated in such Prospectus supplement or
post-effective amendment; and
5.10 maintain a transfer agent and registrar for
its Common Stock.
6. Indemnification.
6.1 To the maximum extent permitted by law, the
Company agrees to indemnify and hold harmless the Investors and each
person, if any, who controls an Investor within the meaning of the
Securities Act (each a "Distributing Investor") against any losses,
claims, damages or liabilities, joint or several (which shall, for
all purposes of this Agreement, include, but not be limited to, all
reasonable costs of defense and investigation and all reasonable
attorneys' fees and expenses), to which the Distributing Investor
may become subject, under the Securities Act or otherwise, insofar
as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon any untrue statement
or alleged untrue statement of any material fact contained in any
Registration Statement, or any related final prospectus or amendment
or supplement thereto, or arise out of or are based upon the
omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements
therein not misleading; provided, however, that the Company will not
be liable in any such case to the extent, and only to the extent,
that any such loss, claim, damage or liability arises out of or is
based upon an untrue statement or alleged untrue statement or
omission or alleged omission made in such Registration Statement,
preliminary prospectus, final prospectus or amendment or supplement
thereto in reliance upon, and in conformity with, written
information furnished to the Company by the Distributing Investor,
its counsel, affiliates or any underwriter, specifically for use in
the preparation thereof. This indemnity agreement will be in
addition to any liability which the Company may otherwise have.
6.2 To the maximum extent permitted by law, each
Distributing Investor agrees that it will indemnify and hold
harmless the Company, and each officer and director of the Company
or person, if any, who controls the Company within the meaning of
the Securities Act, against any losses, claims, damages or
liabilities (which shall, for all purposes of this Agreement,
include, but not be limited to, all reasonable costs of defense and
investigation and all reasonable attorneys' fees and expenses) to
which the Company or any such officer, director or controlling
person may become subject under the Securities Act or otherwise,
insofar as such losses, claims, damages or liabilities (or actions
in respect thereof) arise out of or are based upon any untrue
statement or alleged untrue statement of any material fact contained
in any Registration Statement, or any related final prospectus or
amendment or supplement thereto, or arise out of or are based upon
the omission or the alleged omission to state therein a material
fact required to be stated therein or necessary to make the
statements therein not misleading, but in each case only to the
extent that such untrue statement or alleged untrue statement or
omission or alleged omission was made in such Registration
Statement, final prospectus or amendment or supplement thereto in
reliance upon, and in conformity with, written information furnished
to the Company by such Distributing Investor, its counsel,
affiliates or any underwriter, specifically for use in the
preparation thereof. In no event shall the liability of an Investor
be greater in amount than the dollar amount of the proceeds (net of
all expense paid by such Investor and the amount of any damages such
holder has otherwise been required to pay by reason of such untrue
statement or omission) received by such Investor upon the sale of
the Securities included in the Registration Statement giving rise to
such indemnification obligation. This indemnity agreement will be
in addition to any liability which the Distributing Investor may
otherwise have.
6.3 Promptly after receipt by an indemnified party
under this Section 6 of notice of the commencement of any action
against such indemnified party, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying
party under this Section 6, notify the indemnifying party in writing
of the commencement thereof; but the omission to so notify the
indemnifying party will not relieve the indemnifying party from any
liability which it may have to any indemnified party except to the
extent the failure of the indemnified party to provide such written
notification actually prejudices the ability of the indemnifying
party to defend such action. In case any such action is brought
against any indemnified party, and it notifies the indemnifying
party of the commencement thereof, the indemnifying party will be
entitled to participate in, and, to the extent that it may wish,
jointly with any other indemnifying party similarly notified, assume
the defense thereof, subject to the provisions herein stated and
after notice from the indemnifying party to such indemnified party
of its election so to assume the defense thereof, the indemnifying
party will not be liable to such indemnified party under this
Section 6 for any legal or other expenses subsequently incurred by
such indemnified party in connection with the defense thereof other
than reasonable costs of investigation, unless the indemnifying
party shall not pursue the action to its final conclusion. The
indemnified parties as a group shall have the right to employ one
separate counsel in any such action and to participate in the
defense thereof, but the fees and expenses of such counsel shall not
be at the expense of the indemnifying party if the indemnifying
party has assumed the defense of the action with counsel reasonably
satisfactory to the indemnified party unless (i) the employment of
such counsel has been specifically authorized in writing by the
indemnifying party, or (ii) the named parties to any such action
(including any impleaded parties) include both the indemnified party
and the indemnifying party and the indemnified party shall have been
advised by its counsel that there may be one or more legal defenses
available to the indemnifying party different from or in conflict
with any legal defenses which may be available to the indemnified
party or any other indemnified party (in which case the indemnifying
party shall not have the right to assume the defense of such action
on behalf of such indemnified party, it being understood, however,
that the indemnifying party shall, in connection with any one such
action or separate but substantially similar or related actions in
the same jurisdiction arising out of the same general allegations or
circumstances, be liable only for the reasonable fees and expenses
of one separate firm of attorneys for the indemnified party, which
firm shall be designated in writing by the indemnified party). No
settlement of any action against an indemnified party shall be made
without the prior written consent of the indemnified party, which
consent shall not be unreasonably withheld so long as such
settlement includes a full release of claims against the indemnified
party.
7. Contribution. In order to provide for just and
equitable contribution under the Securities Act in any case in which
(i) the indemnified party makes a claim for indemnification pursuant
to Section 6 hereof but is judicially determined (by the entry of a
final judgment or decree by a court of competent jurisdiction and
the expiration of time to appeal or the denial of the last right of
appeal) that such indemnification may not be enforced in such case
notwithstanding the fact that the express provisions of Section 6
hereof provide for indemnification in such case, or (ii)
contribution under the Securities Act may be required on the part of
any indemnified party, then the Company and the applicable
Distributing Investor shall contribute to the aggregate losses,
claims, damages or liabilities to which they may be subject (which
shall, for all purposes of this Agreement, include, but not be
limited to, all reasonable costs of defense and investigation and
all reasonable attorneys' fees and expenses), in either such case
(after contribution from others) on the basis of relative fault as
well as any other relevant equitable considerations. The relative
fault shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or
the omission or alleged omission to state a material fact relates to
information supplied by the Company on the one hand or the
applicable Distributing Investor on the other hand, and the parties'
relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission. The Company and the
Distributing Investor agree that it would not be just and equitable
if contribution pursuant to this Section 7 were determined by pro
rata allocation or by any other method of allocation which does not
take account of the equitable considerations referred to in this
Section 7. The amount paid or payable by an indemnified party as a
result of the losses, claims, damages or liabilities (or actions in
respect thereof) referred to above in this Section 7 shall be deemed
to include any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any
such action or claim. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation.
Notwithstanding any other provision of this Section 7, in no
event shall any (i) Investor be required to undertake liability to
any person under this Section 7 for any amounts in excess of the
dollar amount of the proceeds received by such Investor from the
sale of such Investor's Registrable Securities (after deducting any
fees, discounts and commissions applicable thereto) pursuant to any
Registration Statement under which such Registrable Securities are
registered under the Securities Act.
8. Notices. All notices, demands, requests, consents,
approvals, and other communications required or permitted hereunder
shall be in writing and, unless otherwise specified herein, shall be
(i) hand delivered, (ii) deposited in the mail, registered or
certified, return receipt requested, postage prepaid, (iii)
delivered by reputable air courier service with charges prepaid, or
(iv) transmitted by facsimile, addressed as set forth in the
Purchase Agreement or to such other address as such party shall have
specified most recently by written notice. Any notice or other
communication required or permitted to be given hereunder shall be
deemed effective (a) upon hand delivery or delivery by facsimile,
with accurate confirmation generated by the transmitting facsimile
machine, at the address or number designated in the Purchase
Agreement (if delivered on a business day during normal business
hours where such notice is to be received), or the first business
day following such delivery (if delivered other than on a business
day during normal business hours where such notice is to be
received) or (b) on the first business day following the date of
sending by reputable courier service, fully prepaid, addressed to
such address, or (c) upon actual receipt of such mailing, if mailed.
Either party hereto may from time to time change its address or
facsimile number for notices under this Section 8 by giving at least
ten (10) days' prior written notice of such changed address or
facsimile number to the other party hereto.
9. Assignment. This Agreement is binding upon and
inures to the benefit of the parties hereto and their respective
heirs, successors and permitted assigns. The rights granted the
Investors under this Agreement may be assigned to any purchaser of
substantially all of the Registrable Securities (or the rights
thereto) from an Investor, as otherwise permitted by the Purchase
Agreement.
10. Determinations. Except as otherwise expressly
provided herein, all consents, approvals and other determinations
(other than amendments to the terms and provisions of this
Agreement) to be made by the Investors pursuant to this Agreement
and all waivers and amendments to or of any provisions in this
Agreement after the Closing Date shall be made by Investors
(excluding Investors who are affiliates of the Company) that have
invested more than fifty percent (50%) of the aggregate Investment
Amounts invested by all Investors (excluding Investors who are
affiliates of the Company).
11. Counterparts/Facsimile. This Agreement may be
executed in two or more counterparts, each of which shall constitute
an original, but all of which, when together shall constitute but
one and the same instrument, and shall become effective when one or
more counterparts have been signed by each party hereto and
delivered to the other parties. In lieu of the original, a
facsimile transmission or copy of the original shall be as effective
and enforceable as the original.
12. Remedies. The remedies provided in this Agreement
are cumulative and not exclusive of any remedies provided by law.
If any term, provision, covenant or restriction of this Agreement is
held by a court of competent jurisdiction to be invalid, illegal,
void or unenforceable, the remainder of the terms, provisions,
covenants and restrictions set forth herein shall remain in full
force and effect and shall in no way be affected, impaired or
invalidated, and the parties hereto shall use their best efforts to
find and employ an alternative means to achieve the same or
substantially the same result as that contemplated by such term,
provision, covenant or restriction.
13. Conflicting Agreements. The Company shall not enter
into any agreement with respect to its securities that is
inconsistent with the rights granted to the holders of Registrable
Securities in this Agreement or otherwise prevents the Company from
complying with all of its obligations hereunder.
14. Headings. The headings in this Agreement are for
reference purposes only and shall not affect in any way the meaning
or interpretation of this Agreement.
15. Governing Law. This Agreement shall be governed by
and construed in accordance with the laws of the State of Delaware
applicable to agreements made and to be performed in the State of
Delaware (without regard to principles of conflict of laws). Both
parties irrevocably consent to the exclusive jurisdiction of the
United States federal courts and the state courts located in
Delaware with respect to any suit or proceeding based on or arising
under this Agreement, the agreements entered into in connection
herewith or the transactions contemplated hereby or thereby and
irrevocably agree that all claims in respect of such suit or
proceeding may be determined in such courts. The Company and each
Purchaser irrevocably waives the defense of an inconvenient forum to
the maintenance of such suit or proceeding. The Company and each
Purchaser further agrees that service of process upon a party mailed
by first class mail shall be deemed in every respect effective
service of process upon the party in any such suit or proceeding.
Nothing herein shall affect either party's right to serve process in
any other manner permitted by law. Each of the parties agrees that
a final non-appealable judgment in any such suit or proceeding shall
be conclusive and may be enforced in other jurisdictions by suit on
such judgment or in any other lawful manner.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
Signature Page to Registration Rights Agreement
IN WITNESS WHEREOF, the undersigned Investors and the Company
have caused this Agreement to be duly executed as of the date first
above written.
"COMPANY"
SUPERCONDUCTOR
TECHNOLOGIES INC.
By:
M. Xxxxx Xxxxxx
President and Chief
Executive Officer
RESIDENCE: California JUPITER PARTNERS
Investment Amount: $ 525,000
Common Shares: 552,632
Warrant Shares: 138,158 By:
Xxxx X. Xxxxxx, Partner
Address for Notice:
Jupiter Partners
c/o Bryan & Xxxxxxx
000 Xxxxxxxxxx Xx., 00xx Xxxxx
Xxx Xxxxxxxxx, XX 00000
RESIDENCE: California
XXXXXXX X. XXXXXXX TRUST UA 9/22/88
Investment Amount: $ 200,000
Common Shares: 210,526
Warrant Shares: 52,632
By:
Address for Notice: Xxxxxxx X. Xxxxxxx, Trustee
Xxxxxxx X. Xxxxxxx
0000 Xxxx Xxxx Xxxx
Xxxx.0 Xxxxx 000
Xxxxx Xxxx, XX 00000
RESIDENCE: California CREE XXXXX XXXXXXX, TRUSTEE, CREE & XXXXXXXX
XXXXXXX FAMILY TRUST
Investment Amount: $ 24,985
Common Shares: 26,300 By: Palo Alto Investors LLC
Warrant Shares: 6,575 Title: Investment Advisor
Address for Notice: By: Palo Alto Investors
Mr. Xxxx Xxxxxxx Title: Manager
Palo Alto Investors
000 Xxxxxxxxxx Xxxxxx
Xxxx Xxxx, XX 00000 By:
Name: Xxxxxxx X. Xxxxxxx
Title: President
RESIDENCE: California XXXXXXX X. XXXXXX REVOCABLE TRUST
Investment Amount: $ 15,200 By: Palo Alto Investors LLC
Common Shares: 16,000 Title: Investment Advisor
Warrant Shares: 4,000
By: Palo Alto Investors
Address for Notice: Title: Manager
Mr. Xxxx Xxxxxxx
Palo Alto Investors
000 Xxxxxxxxxx Xxxxxx By:
Xxxx Xxxx, XX 00000 Name: Xxxxxxx X. Xxxxxxx
Title: President
RESIDENCE: California XXXX X. XXXXXXX
Investment Amount: $ 25,460 By: Palo Alto Investors LLC
Common Shares: 26,800 Title: Investment Advisor
Warrant Shares: 6,700
By: Palo Alto Investors
Address for Notice: Title: Manager
Mr. Xxxx Xxxxxxx
Palo Alto Investors
000 Xxxxxxxxxx Xxxxxx By:
Xxxx Xxxx, XX 00000 Name: Xxxxxxx X. Xxxxxxx
Title: President
RESIDENCE: California XXXX X. XXXXXXX
Investment Amount: $ 24,985 By: Palo Alto Investors LLC
Common Shares: 26,300 Title: Investment Advisor
Warrant Shares: 6,575
By: Palo Alto Investors
Address for Notice: Title: Manager
Mr. Xxxx Xxxxxxx
Palo Alto Investors
000 Xxxxxxxxxx Xxxxxx By:
Xxxx Xxxx, XX 00000 Name: Xxxxxxx X. Xxxxxxx
Title: President
RESIDENCE: California UBTI FREE, L.P.
Investment Amount: $ 47,025 By: Palo Alto Investors LLC
Common Shares: 49,500 Title: Investment Advisor
Warrant Shares: 12,375
By: Palo Alto Investors
Address for Notice: Title: Manager
Mr. Xxxx Xxxxxxx
Palo Alto Investors
000 Xxxxxxxxxx Xxxxxx By:
Xxxx Xxxx, XX 00000 Name: Xxxxxxx X. Xxxxxxx
Title: President
RESIDENCE: California XXXXXXX X. XXXXXXX REVOCABLE TRUST, U/A 9/22/88
Investment Amount: $172,345.20 By: Palo Alto Investors LLC
Common Shares: 181,416 Title: Investment Advisor
Warrant Shares: 45,354
By: Palo Alto Investors
Address for Notice: Title: Manager
Mr. Xxxx Xxxxxxx
Palo Alto Investors
000 Xxxxxxxxxx Xxxxxx By:
Xxxx Xxxx, XX 00000 Name: Xxxxxxx X. Xxxxxxx
Title: President
RESIDENCE: California ALLOY VENTURES 2002, L.P.
Investment Amount: $6,740,301.80
Common Shares: 6,810,844
Warrant Shares: 1,702,711 By:
Address for Notice: Alloy Ventures 2002, LLC
Xxxx X. Xxxxx, Ph.D. Title: General Partner
Alloy Ventures
000 Xxxxxx Xxxxxx, 0xx Xxxxx Managing Member of
Xxxx Xxxx, XX 00000 Alloy Ventures 2002, LLC
RESIDENCE: California ALLOY PARTNERS 2002, L.P.
Investment Amount: $174,698.35
Common Shares: 183,893
Warrant Shares: 45,973 By:
Address for Notice: Alloy Ventures 2002, LLC
Xxxx X. Xxxxx, Ph.D. Title: General Partner
Alloy Ventures
000 Xxxxxx Xxxxxx, 0xx Xxxxx Managing Member of
Xxxx Xxxx, XX 00000 Alloy Ventures 2002, LLC
RESIDENCE: Delaware WILMINGTON SECURITIES, INC.
Investment Amount: $2,116,500
Common Shares: 2,227,895
Warrant Shares: 556,974 By:
Address for Notice: Xxxxxx X. XxXxxxxxx, President
Wilmington Securities, Inc.
000 Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxxx, XX 00000
Attn: Xxxxxx X. XxXxxxxxx
RESIDENCE: Pennsylvania XXXXX X. XXXXXXX, XXXXX XXXXXXXX XXXXXXX AND
X.X. XXXXXXXXXXXX, TRUSTEES OF THE XXXXX X.
Investment Amount: $997,500 XXXXXXX TRUST U/A/T DATED NOVEMBER 18, 1985
Common Shares: 1,050,000
Warrant Shares: 262,500
By:
Address for Notice:
c/o Xxxxxxx X. Xxxxx X.X. Xxxxxxxxxxxx, Trustee
The Xxxxxxx Company
0000 Xxxxx Xxxxxxxx
Xxxxxxxxxx, XX 00000
RESIDENCE: Pennsylvania X.X. XXXXXXXXXXXX AND X.X. XXXXXX,
TRUSTEES U/A/T DATED DECEMBER 30, 1976 FOR THE
Investment Amount: $49,000 CHILDREN OF JULIET XXX XXXXXXX XXXXXXX
Common Shares: 51,579
Warrant Shares: 12,895
By:
Address for Notice: X.X. Xxxxxxxxxxxx, Trustee
c/o Xxxxxxx X. Xxxxx
The Xxxxxxx Company By:
1800 Grant Building X.X. Xxxxxx, Trustee
Xxxxxxxxxx, XX 00000
RESIDENCE: Pennsylvania X.X. XXXXXXXXXXXX AND X.X. XXXXXX,
TRUSTEES U/A/T DATED DECEMBER 30, 1976 FOR THE
Investment Amount: $49,000 CHILDREN OF XXXXXX XXXXXXX XXXXXX
Common Shares: 51,579
Warrant Shares: 12,895
By:
Address for Notice:
c/o Xxxxxxx X. Xxxxx X.X. Xxxxxxxxxxxx, Trustee
The Xxxxxxx Company
1800 Grant Building By:
Xxxxxxxxxx, XX 00000
X.X. Xxxxxx, Trustee
RESIDENCE: Pennsylvania X.X. XXXXXXXXXXXX AND X.X. XXXXXX,
TRUSTEES U/A/T DATED DECEMBER 30, 1976 FOR THE
Investment Amount: $49,000 CHILDREN OF XXXXX XXX XXXXXXX, XX.
Common Shares: 51,579
Warrant Shares: 12,895
By:
Address for Notice:
c/o Xxxxxxx X. Xxxxx X.X. Xxxxxxxxxxxx, Trustee
The Xxxxxxx Company
1800 Grant Building By:
Xxxxxxxxxx, XX 00000
X.X. Xxxxxx, Trustee
RESIDENCE: Pennsylvania X.X. XXXXXXXXXXXX AND X.X. XXXXXX,
TRUSTEES U/A/T DATED DECEMBER 30, 1976 FOR THE
Investment Amount: $49,000 CHILDREN OF XXXXXXX XXXXXXX XXXXXXX
Common Shares: 51,579
Warrant Shares: 12,895
By:
Address for Notice:
c/o Xxxxxxx X. Xxxxx X.X. Xxxxxxxxxxxx, Trustee
The Xxxxxxx Company
1800 Grant Building By:
Xxxxxxxxxx, XX 00000
X.X. Xxxxxx, Trustee
RESIDENCE: New York SPECIAL SITUATIONS FUND III, L.P.
Investment Amount: $1,646,825
Common Shares: 1,733,500
Warrant Shares: 433,375 By:
Address for Notice: Name: Xxxxx Greenhouse
000 X. 00xx Xxxxxx, 00xx Xxxxx Xxxxx: General Partner
Xxx Xxxx, XX 00000
RESIDENCE: New York SPECIAL SITUATIONS FUND CAYMAN, L.P.
Investment Amount: $789,165
Common Shares: 830,700
Warrant Shares: 207,675 By:
Address for Notice: Name: Xxxxx Greenhouse
000 X. 00xx Xxxxxx, 00xx Xxxxx Xxxxx: General Partner
Xxx Xxxx, XX 00000
RESIDENCE: New York SPECIAL SITUATIONS PRIVATE EQUITY FUND, L.P.
Investment Amount: $549,005
Common Shares: 577,900
Warrant Shares: 144,475 By:
Address for Notice: Name: Xxxxx Greenhouse
000 X. 00xx Xxxxxx, 00xx Xxxxx Xxxxx: General Partner
Xxx Xxxx, XX 00000
RESIDENCE: New York SPECIAL SITUATIONS TECHNOLOGY FUND, L.P.
Investment Amount: $300,010
Common Shares: 315,800
Warrant Shares: 78,950 By:
Address for Notice: Name: Xxxxx Greenhouse
000 X. 00xx Xxxxxx, 00xx Xxxxx Xxxxx: General Partner
Xxx Xxxx, XX 00000
RESIDENCE: California MICRO CAP PARTNERS, L.P.
Investment Amount: $1,000,000 By: Palo Alto Investors LLC
Common Shares: 1,052,632 Title: General Partner
Warrant Shares: 263,158
By: Palo Alto Investors
Address for Notice: Title: Manager
Mr. Xxxx Xxxxxxx
Palo Alto Investors
000 Xxxxxxxxxx Xxxxxx By:
Xxxx Xxxx, XX 00000
Name: Xxxxxxx X. Xxxxxxx
Title: President
RESIDENCE: British Columbia Her Majesty the Queen in Right of the Province
British Columbia
Investment Amount: $95,000
Common Shares: 100,000 By: Wellington Management Company, LLP
Warrant Shares: 25,000 Title: Investment Adviser
Address for Notice:
Wellington Management Company, LLP
Attn: Xxxx Xx Xxxxx
00 Xxxxx Xxxxxx By:
Xxxxxx, XX 00000
Name: Xxxxx X. Xxxxxxx
Title: Vice President and Counsel
RESIDENCE: Michigan The Dow Chemical Employees' Retirement Plan
Investment Amount: $285,000 By: Wellington Management Company, LLP
Common Shares: 300,000 Title: Investment Adviser
Warrant Shares: 75,000
Address for Notice:
Wellington Management Company, LLP
Attn: Xxxx Xx Xxxxx By:
00 Xxxxx Xxxxxx
Xxxxxx, XX 00000 Name: Xxxxx X. Xxxxxxx
Title: Vice President and Counsel
RESIDENCE: New York The Retirement Program Plan for Employees of
Union Carbide Corporation
Investment Amount: $237,500
Common Shares: 250,000 By: Wellington Management Company, LLP
Warrant Shares: 62,500 Title: Investment Adviser
Address for Notice:
Wellington Management Company, LLP
Attn: Xxxx Xx Xxxxx
00 Xxxxx Xxxxxx By:
Xxxxxx, XX 00000
Name: Xxxxx X. Xxxxxxx
Title: Vice President and Counsel
RESIDENCE: Singapore Government of Singapore Investment Corporation
Pte Ltd
Investment Amount: $760,000.00
Common Shares: 800,000 By: Wellington Management Company, LLP
Warrant Shares: 200,000 Title: Investment Adviser
Address for Notice:
Wellington Management Company, LLP By:
Attn: Xxxx Xx Xxxxx
00 Xxxxx Xxxxxx Name: Xxxxx X. Xxxxxxx
Xxxxxx, XX 00000 Title: Vice President and Counsel
RESIDENCE: Maryland Xxxxxx Xxxxxx Medical Institute
Investment Amount: $318,250 By: Wellington Management Company, LLP
Common Shares: 335,000 Title: Investment Adviser
Warrant Shares: 83,750
Address for Notice:
Wellington Management Company, LLP
Attn: Xxxx Xx Xxxxx By:
00 Xxxxx Xxxxxx
Xxxxxx, XX 00000 Name: Xxxxx X. Xxxxxxx
Title: Vice President and Counsel
RESIDENCE: New York New York State Nurses Association Pension Plan
Investment Amount: $184,300.00 By: Wellington Management Company, LLP
Common Shares: 194,000 Title: Investment Adviser
Warrant Shares: 48,500
Address for Notice:
Wellington Management Company, LLP By:
Attn: Xxxx Xx Xxxxx
00 Xxxxx Xxxxxx Name: Xxxxx X. Xxxxxxx
Xxxxxx, XX 00000 Title: Vice President and Counsel
RESIDENCE: Ohio Ohio Carpenters' Pension Fund
Investment Amount: $204,250 By: Wellington Management Company, LLP
Common Shares: 215,000 Title: Investment Adviser
Warrant Shares: 53,750
Address for Notice:
Wellington Management Company, LLP
Attn: Xxxx Xx Xxxxx By:
00 Xxxxx Xxxxxx
Xxxxxx, XX 00000 Name: Xxxxx X. Xxxxxxx
Title: Vice President and Counsel
RESIDENCE: Ohio Laborers' District Council and Contractors' of
Ohio Pension Fund
Investment Amount: $133,000
Common Shares: 140,000 By: Wellington Management Company, LLP
Warrant Shares: 35,000 Title: Investment Adviser
Address for Notice:
Wellington Management Company, LLP
Attn: Xxxx Xx Xxxxx
00 Xxxxx Xxxxxx By:
Xxxxxx, XX 00000
Name: Xxxxx X. Xxxxxxx
Title: Vice President and Counsel
RESIDENCE: Oregon Oregon Investment Council
Investment Amount: $541,500 By: Wellington Management Company, LLP
Common Shares: 570,000 Title: Investment Adviser
Warrant Shares: 142,500
Address for Notice:
Wellington Management Company, LLP
Attn: Xxxx Xx Xxxxx By:
00 Xxxxx Xxxxxx
Xxxxxx, XX 00000 Name: Xxxxx X. Xxxxxxx
Title: Vice President and Counsel
RESIDENCE: New Jersey The Xxxxxx Xxxx Xxxxxxx Foundation
Investment Amount: $332,500 By: Wellington Management Company, LLP
Common Shares: 350,000 Title: Investment Adviser
Warrant Shares: 87,500
Address for Notice:
Wellington Management Company, LLP
Attn: Xxxx Xx Xxxxx By:
00 Xxxxx Xxxxxx
Xxxxxx, XX 00000 Name: Xxxxx X. Xxxxxxx
Title: Vice President and Counsel
RESIDENCE: Massachusetts WTC-CIF Emerging Companies Portfolio
Investment Amount: $228,000 By: Wellington Management Company, LLP
Common Shares: 240,000 Title: Investment Adviser
Warrant Shares: 60,000
Address for Notice:
Wellington Management Company, LLP
Attn: Xxxx Xx Xxxxx By:
00 Xxxxx Xxxxxx
Xxxxxx, XX 00000 Name: Xxxxx X. Xxxxxxx
Title: Vice President and Counsel
RESIDENCE: Massachusetts WTC-CTF Emerging Companies Portfolio
Investment Amount: $304,000 By: Wellington Management Company, LLP
Common Shares: 320,000 Title: Investment Adviser
Warrant Shares: 80,000
Address for Notice:
Wellington Management Company, LLP
Attn: Xxxx Xx Xxxxx By:
00 Xxxxx Xxxxxx
Xxxxxx, XX 00000 Name: Xxxxx X. Xxxxxxx
Title: Vice President and Counsel
RESIDENCE: Australia Australian Retirement Fund
Investment Amount: $61,750 By: Wellington Management Company, LLP
Common Shares: 65,000 Title: Investment Adviser
Warrant Shares: 16,250
Address for Notice:
Wellington Management Company, LLP
Attn: Xxxx Xx Xxxxx By:
00 Xxxxx Xxxxxx
Xxxxxx, XX 00000 Name: Xxxxx X. Xxxxxxx
Title: Vice President and Counsel
RESIDENCE: Alberta, Canada TELUS Corporation
Investment Amount: $6,650 By: Wellington Management Company, LLP
Common Shares: 7,000 Title: Investment Adviser
Warrant Shares: 1,750
Address for Notice:
Wellington Management Company, LLP
Attn: Xxxx Xx Xxxxx By:
00 Xxxxx Xxxxxx
Xxxxxx, XX 00000 Name: Xxxxx X. Xxxxxxx
Title: Vice President and Counsel
RESIDENCE: Australia JB Were Global Small Companies Fund
Investment Amount: $161,500 By: Wellington Management Company, LLP
Common Shares: 170,000 Title: Investment Adviser
Warrant Shares: 42,500
Address for Notice:
Wellington Management Company, LLP
Attn: Xxxx Xx Xxxxx By:
00 Xxxxx Xxxxxx
Xxxxxx, XX 00000 Name: Xxxxx X. Xxxxxxx
Title: Vice President and Counsel
RESIDENCE: New Zealand NZ Funds Global Small Companies Trust
Investment Amount: $26,600 By: Wellington Management Company, LLP
Common Shares: 28,000 Title: Investment Adviser
Warrant Shares: 7,000
Address for Notice:
Wellington Management Company, LLP
Attn: Xxxx Xx Xxxxx By:
00 Xxxxx Xxxxxx
Xxxxxx, XX 00000 Name: Xxxxx X. Xxxxxxx
Title: Vice President and Counsel
RESIDENCE: Australia Retail Employees' Superannuation Pty Ltd
Investment Amount: $23,750 By: Wellington Management Company, LLP
Common Shares: 25,000 Title: Investment Adviser
Warrant Shares: 6,250
Address for Notice:
Wellington Management Company, LLP
Attn: Xxxx Xx Xxxxx By:
00 Xxxxx Xxxxxx
Xxxxxx, XX 00000 Name: Xxxxx X. Xxxxxxx
Title: Vice President and Counsel
RESIDENCE: Pennsylvania SEI Institutional Investment Trust, Small Cap
Growth Fund
Investment Amount: $332,500
Common Shares: 350,000 By: Wellington Management Company, LLP
Warrant Shares: 87,500 Title: Investment Adviser
Address for Notice:
Wellington Management Company, LLP
Attn: Xxxx Xx Xxxxx
00 Xxxxx Xxxxxx By:
Xxxxxx, XX 00000
Name: Xxxxx X. Xxxxxxx
Title: Vice President and Counsel
RESIDENCE: Pennsylvania SEI Institutional Managed Trust, Small Cap
Growth Fund
Investment Amount: $465,500
Common Shares: 490,000 By: Wellington Management Company, LLP
Warrant Shares: 122,500 Title: Investment Adviser
Address for Notice:
Wellington Management Company, LLP
Attn: Xxxx Xx Xxxxx
00 Xxxxx Xxxxxx By:
Xxxxxx, XX 00000
Name: Xxxxx X. Xxxxxxx
Title: Vice President and Counsel
RESIDENCE: Alberta, Canada TELUS Foreign Equity Active Pool
Investment Amount: $23,750 By: Wellington Management Company, LLP
Common Shares: 25,000 Title: Investment Adviser
Warrant Shares: 6,250
Address for Notice:
Wellington Management Company, LLP
Attn: Xxxx Xx Xxxxx By:
00 Xxxxx Xxxxxx
Xxxxxx, XX 00000 Name: Xxxxx X. Xxxxxxx
Title: Vice President and Counsel
RESIDENCE: Australia Telstra Super Pty Ltd
Investment Amount: $33,250 By: Wellington Management Company, LLP
Common Shares: 35,000 Title: Investment Adviser
Warrant Shares: 8,750
Address for Notice:
Wellington Management Company, LLP
Attn: Xxxx Xx Xxxxx By:
00 Xxxxx Xxxxxx
Xxxxxx, XX 00000 Name: Xxxxx X. Xxxxxxx
Title: Vice President and Counsel
RESIDENCE: Ireland WMP (Dublin) Global Smaller Companies Equity
Investment Amount: $8,550 By: Wellington Management Company, LLP
Common Shares: 9,000 Title: Investment Adviser
Warrant Shares: 2,250
Address for Notice:
Wellington Management Company, LLP By:
Attn: Xxxx Xx Xxxxx
00 Xxxxx Xxxxxx Name: Xxxxx X. Xxxxxxx
Xxxxxx, XX 00000 Title: Vice President and Counsel
