SECURITIES PURCHASE AGREEMENT
This SECURITIES PURCHASE AGREEMENT (the "Agreement") is made and entered
into as of October 10, 2002 by and among Superconductor Technologies Inc., a
Delaware corporation (the "Company"), and each of the purchasers set forth on
the signature pages of this Agreement (the "Investors") with reference to the
following facts:
A. The Company and the Investors are executing and delivering this
Agreement in reliance upon the exemption from securities registration afforded
by Rule 506 under Regulation D ("Regulation D") as promulgated by the United
States Securities and Exchange Commission under the Securities Act of 1933, as
amended (the "Securities Act").
B. The Investors desire to purchase, and the Company desires to issue
and sell, upon the terms and conditions in this Agreement, (i) an aggregate of
15,833,669 shares (the "Shares") of the Company's common stock, par value $0.001
per share ("Common Stock"), at $0.95 per share and (ii) stock purchase warrants
in the form attached hereto as Exhibit A (the "Warrants") to purchase up to an
aggregate 3,958,418 additional shares of Common Stock (the "Warrant Shares").
D. Each Investor wishes to purchase, upon the terms and conditions in
this Agreement, the number of Shares and the number of Warrants set forth
immediately next to its name on the signature pages of this Agreement.
E. Contemporaneous with the closing of the transactions contemplated by
this Agreement, the parties will be executing and delivering a Registration
Rights Agreement, in the form attached hereto as Exhibit B (the "Registration
Rights Agreement"), pursuant to which the Company will agree to provide certain
registration rights under the Securities Act and the rules and regulations
promulgated thereunder, and applicable state securities laws. This Agreement,
the Warrants and the Registration Rights Agreement are collectively referred to
as the "Transaction Documents".
F. The transaction contemplated by this Agreement is intended to
generate a minimum of $15,000,000 and a maximum of $20,000,000 gross proceeds to
the Company on the Closing Date (as defined below). The sale of securities
hereunder to the Investors initially executing this Agreement will meet the
minimum gross proceeds requirement, and the Company may secure additional
commitments from additional Investors executing this Agreement hereafter and
prior to the Closing for the sale of additional securities at the price and on
the terms specified herein provided the aggregate of all sales to Investors does
not exceed the maximum gross proceeds limit.
NOW, THEREFORE, the Company and each of the Investors severally (and not
jointly) hereby agree as follows:
1. Purchase and Sale of Shares and Warrants.
1.1 Purchase of Shares and Warrants. On the Closing Date (as defined
below), the Company shall issue and sell to each Investor, and each Investor
severally agrees to purchase from the Company, the number of Shares and Warrants
set forth immediately next to such Investor's name on the signature pages to
this Agreement.
1.2 Form of Payment. On the Closing Date, (i) each Investor shall pay
the purchase price for the Shares and the Warrants to be issued and sold to it
at the Closing (as defined below) (the "Purchase Price") by wire transfer of
immediately available funds to the Company, in accordance with the Company's
written wiring instructions, against delivery of duly executed certificates
representing the Shares and duly executed Warrants which such Investor is
purchasing and (ii) the Company shall deliver such certificates and Warrants
duly executed on behalf of the Company, to such Investor, against delivery of
such Purchase Price.
1.3 Closing Date. Subject to the satisfaction (or waiver) of the
conditions set forth in Sections 5 and 6, the date and time of the issuance and
sale of the Shares and the Warrants pursuant to this Agreement (the "Closing
Date") shall be 9:00 a.m., Pacific Standard Time, on the date of closing of the
Merger (as defined in Section 5.5 below) or such other mutually agreed upon
time. The closing of the transactions contemplated by this Agreement (the
"Closing") shall occur on the Closing Date at the offices of ▇▇▇▇|▇▇▇▇▇▇▇▇▇▇▇
LLP, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, or at such
other location as may be agreed to by the parties.
1.4 Adjustments. If at any time prior to the Closing the outstanding
shares of Common Stock are subdivided into a greater number of shares or
consolidated into a lesser number of shares, then proportionate adjustments
shall be made to per share purchase price and number of shares of Common Stock
purchased hereunder and under the form of Warrant attached hereto in order to
prevent dilution and maintain the same aggregate consideration hereunder and
thereunder.
2. Investors' Representations, Warranties and Covenants. Each Investor
severally (and not jointly) represents, warrants and covenants to the Company
solely as to such Investor that:
2.1 Investment Purpose. As of the date hereof, the Investor is
purchasing the Shares, the Warrants and Warrant Shares (collectively the
"Securities") for its own account and not with a present view towards the public
sale or distribution thereof, except pursuant to sales registered or exempted
from registration under the Securities Act; provided, however, that by making
the representations herein, the Investor does not agree to hold any of the
Securities for any minimum or other specific term and reserves the right to
dispose of the Securities at any time in accordance with or pursuant to a
registration statement or an exemption under the Securities Act.
2.2 Investor Status. The Investor is an "accredited investor" as
defined in Rule 501(a) of Regulation D. In the normal course of its business,
the Investor invests in or purchases securities similar to the Securities and it
has such knowledge and experience in financial and business matters as to be
capable of evaluating the merits and risks of purchasing the Securities.
2.3 Reliance on Exemptions. The Investor understands that the
Securities are being offered and sold to it in reliance upon specific exemptions
from the registration requirements of United States federal and state securities
laws and that the Company is relying upon the truth and accuracy of, and the
Investor's compliance with, the representations, warranties, agreements,
acknowledgments and understandings of the Investor set forth herein in order to
determine the availability of such exemptions and the eligibility of the
Investor to acquire the Securities.
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2.4 Information. The Investor and its advisors, if any, have been
furnished with all materials (excluding any material nonpublic information)
relating to the business, finances and operations of the Company and materials
relating to the offer and sale of the Securities which have been requested by
the Investor or its advisors. The Investor and its advisors, if any, have been
afforded the opportunity to ask questions of the Company. Neither such inquiries
nor any other due diligence investigation conducted by Investor or any of its
advisors or representatives shall modify, amend or affect Investor's right to
rely on the Company's representations and warranties contained in Section 3. The
Investor understands that its investment in the Securities involves a
significant degree of risk.
2.5 Governmental Review. The Investor understands that no United
States federal or state agency or any other government or governmental agency
has passed upon or made any recommendation or endorsement of the Securities.
2.6 Transfer or Re-sale. The Investor understands that (i) except as
provided in the Registration Rights Agreement, the sale or re-sale of the
Securities has not been and is not being registered under the Securities Act or
any applicable state securities laws, and the Securities may not be transferred
unless (a) the Securities are sold pursuant to an effective registration
statement under the Securities Act, (b) the Investor shall have delivered to the
Company an opinion of counsel (which opinion shall be in form, substance and
scope customary for opinions of counsel in comparable transactions) to the
effect that the Securities to be sold or transferred may be sold or transferred
pursuant to an exemption from such registration, (c) the Securities are sold or
transferred to an "affiliate" (as defined in Rule 144 promulgated under the
Securities Act (or a successor rule) ("Rule 144")) of the Investor who agrees to
sell or otherwise transfer the Securities only in accordance with this Section
2.6 and who is an "accredited investor" (as defined in Rule 501(a) of Regulation
D) or (d) the Securities are sold pursuant to Rule 144; (ii) any sale of such
Securities made in reliance on Rule 144 may be made only in accordance with the
terms of said Rule and further, if said Rule is not applicable, any re-sale of
such Securities under circumstances in which the seller (or the person through
whom the sale is made) may be deemed to be an underwriter (as that term is
defined in the Securities Act) may require compliance with some other exemption
under the Securities Act or the rules and regulations of the Securities and
Exchange Commission thereunder; and (iii) neither the Company nor any other
person is under any obligation to register such Securities under the Securities
Act or any state securities laws or to comply with the terms and conditions of
any exemption thereunder (in each case, other than pursuant to the Registration
Rights Agreement). Notwithstanding the foregoing or anything else contained
herein to the contrary, the Securities may be pledged as collateral in
connection with a bona fide margin account or other lending arrangement;
provided, however, that upon execution on any such pledge, the pledgee shall be
subject to the restrictions on transfer of the Securities contained in this
Agreement.
2.7 Legends. The Investor understands that the Shares and the
Warrants and, until such time as the Warrant Shares have been registered under
the Securities Act as contemplated by the Registration Rights Agreement or
otherwise may be sold pursuant to Rule 144 without any restriction as to the
number of securities as of a particular date that can then be immediately sold,
the certificates for the Shares and Warrant Shares may bear a restrictive legend
in substantially the following form (and a stop-transfer order may be placed
against transfer of the certificates for such Securities):
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The securities represented by this certificate have not been registered
under the Securities Act of 1933, as amended, or the securities laws of
any state of the United States. The securities represented hereby may
not be offered or sold in the absence of an effective registration
statement for the securities under applicable securities laws unless
offered, sold or transferred under an available exemption from the
registration requirements of those laws.
The legend set forth above shall be removed and the Company shall issue
a certificate without such legend to the holder of any Security upon which it is
stamped, if, unless otherwise required by applicable state securities laws, (a)
such Security is registered for resale under an effective registration statement
filed under the Securities Act or otherwise may be sold pursuant to Rule 144(k)
without any restriction as to the number of securities as of a particular date
that can then be immediately sold, or (b) such holder provides the Company with
an opinion of counsel, in form, substance and scope customary for opinions of
counsel in comparable transactions, to the effect that a public sale or transfer
of such Security may be made without registration under the Securities Act and
such sale or transfer is effected or (c) such holder provides the Company with
reasonable and customary assurances that such Security can be sold pursuant to
Rule 144 and such sale or transfer is effected. The Investor agrees to sell all
Securities, including those represented by a certificate(s) from which the
legend has been removed, in compliance with applicable prospectus delivery
requirements, if any.
2.8 Authorization; Enforcement. This Agreement and the Registration
Rights Agreement have been duly and validly authorized. This Agreement has been
duly executed and delivered on behalf of the Investor, and this Agreement
constitutes, and upon execution and delivery by the Investor of the Registration
Rights Agreement, such agreement will constitute, valid and binding agreements
of the Investor enforceable in accordance with their terms, subject to
bankruptcy, insolvency, reorganization, moratorium or other similar rights
affecting or relating to creditors' rights generally and general principles of
equity.
2.9 Residency. The Investor is a resident of the jurisdiction set
forth immediately next to such Investor's name on the signature pages hereto.
2.10 Trading Limitations. The Investor will conduct any sales of
Common Stock in compliance with all relevant securities laws and regulations.
The Investor will not engage in any "short sales" (as defined in Rule 3b-3 under
the Securities Act) prior to the effective date of the Registration Statement
(as defined in the Registration Rights Agreement). This prohibition against
short sales will not apply to the Investor during any period in which the
Investor is prevented from publicly reselling previously acquired shares of
common stock of the Company or Conductus, Inc. (or shares hereafter acquired
under previously issued warrants) due to the suspension or lapse for any reason
of the registration statements presently in effect under existing registration
rights agreements. The Investor has not engaged in any purchases or sales of
Common Stock within the past five (5) trading days.
3. Representations and Warranties of the Company. The Company represents
and warrants to each Investor that:
3.1 Organization and Qualification. The Company and each of its
Subsidiaries (as defined below), if any, is a corporation duly organized,
validly existing and in good standing under the laws of the jurisdiction in
which it is incorporated and has the requisite corporate power to own its
properties and to carry on its business as now being conducted. Schedule 3.1
sets forth a list of all of the Subsidiaries of the Company and the jurisdiction
in
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which each is incorporated. The Company and each of its Subsidiaries is duly
qualified as a foreign corporation to do business and is in good standing in
every jurisdiction in which its ownership or use of property or the nature of
the business conducted by it makes such qualification necessary except where the
failure to be so qualified or in good standing would not have a Material Adverse
Effect. "Material Adverse Effect" means any material adverse effect on (i) the
holder's rights relating to the Securities, (ii) the business, operations,
assets, financial condition or prospects of the Company and its Subsidiaries, if
any, taken as a whole, (iii) the transactions contemplated hereby or by the
agreements or instruments to be entered into in connection herewith or (iv) the
authority or the ability of the Company to perform its obligation under this
Agreement, the Registration Rights Agreement or the Warrants. "Subsidiaries"
means any corporation or other organization, whether incorporated or
unincorporated, in which the Company owns, directly or indirectly, any equity or
other ownership interest.
3.2 Authorization; Enforcement. (i) The Company has all requisite
corporate power and authority to enter into and perform this Agreement, the
Registration Rights Agreement and the Warrants and to consummate the
transactions contemplated hereby and thereby and to issue the Securities, in
accordance with the terms hereof and thereof, (ii) the execution and delivery of
this Agreement, the Registration Rights Agreement and the Warrants by the
Company, and the consummation by it of the transactions contemplated hereby and
thereby (including, without limitation, the issuance of the Warrants and the
issuance and reservation for issuance of the Warrant Shares issuable upon
exercise of the Warrants) have been duly authorized by the Company's Board of
Directors and no further consent or authorization of the Company, its Board of
Directors, or its stockholders is required, (iii) this Agreement has been duly
executed and delivered by the Company, and (iv) this Agreement constitutes, and
upon execution and delivery by the Company of the Registration Rights Agreement
and the Warrants, each of such agreements and instruments will constitute, a
legal, valid and binding obligation of the Company enforceable against the
Company in accordance with its terms, subject to bankruptcy, insolvency,
reorganization, moratorium or other similar rights affecting or relating to
creditors' rights generally and general principles of equity.
3.3 Capitalization. As of the date hereof, the authorized capital
stock of the Company consists of (i) 75,000,000 shares of Common Stock, of which
25,198,270 shares are issued and outstanding, 3,643,405 shares are reserved for
issuance pursuant to the Company's stock option plans, 3,461,091 shares are
reserved for issuance pursuant to securities (other than the Warrants)
exercisable for, or convertible into or exchangeable for shares of Common Stock,
3,958,418 shares are reserved for issuance upon exercise of the Warrants; and
(ii) 2,000,000 shares of preferred stock, of which no shares are issued and
outstanding. All of such outstanding shares of capital stock are, or upon
issuance will be, duly authorized, validly issued, fully paid and nonassessable.
No shares of capital stock of the Company are subject to preemptive rights or
any other similar rights of the stockholders of the Company or any liens or
encumbrances imposed through the actions or failure to act of the Company.
Except as disclosed in Schedule 3.3, as of the date of this Agreement, (i) there
are no outstanding options, warrants, scrip, rights to subscribe for, puts,
calls, rights of first refusal, agreements, understandings, claims or other
commitments or rights of any character whatsoever relating to, or securities or
rights convertible into or exchangeable for any shares of capital stock of the
Company or any of its Subsidiaries, or arrangements by which the Company or any
of its Subsidiaries is or may become bound to issue additional shares of capital
stock of the Company or any of its Subsidiaries, (ii) there are no agreements or
arrangements under which the Company or any of its Subsidiaries is obligated to
register the sale of any of its or their securities under the Securities Act
(except the Registration Rights Agreement) and (iii) there are no anti-dilution
or price adjustment provisions contained in any security issued by the
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Company (or in any agreement providing rights to security holders) that will be
triggered by the issuance of the Shares, the Warrants or Warrant Shares. The
Company has made available to counsel for the Investors true and correct copies
of the Company's Restated Certificate of Incorporation as in effect on the date
hereof ("Certificate of Incorporation"), the Company's Bylaws, as in effect on
the date hereof (the "Bylaws"), and the terms of all securities convertible into
or exercisable for Common Stock of the Company and the material rights of the
holders thereof in respect thereto except for stock options granted under any
benefit plan of the Company.
3.4 Issuance of Shares. The Shares are duly authorized and, upon
issuance in accordance with the terms of this Agreement, will be validly issued,
fully paid and non-assessable, and free from all taxes, liens, claims and
encumbrances with respect to the issue thereof and shall not be subject to
preemptive rights or other similar rights of stockholders of the Company and
will not impose personal liability upon the holder thereof. The Warrant Shares
are duly authorized and reserved for issuance and, upon exercise of the Warrants
in accordance with the terms thereof, will be validly issued, fully paid and
non-assessable, and free from all taxes, liens, claims and encumbrances and will
not be subject to preemptive rights or other similar rights of stockholders of
the Company and will not impose personal liability upon the holder thereof.
3.5 No Conflicts. The execution, delivery and performance of this
Agreement, the Registration Rights Agreement and the Warrants by the Company and
the consummation by the Company of the transactions contemplated hereby and
thereby (including, without limitation, the issuance and reservation for
issuance, as applicable, of the Warrant Shares) will not (i) conflict with or
result in a violation of any provision of the Certificate of Incorporation or
Bylaws or (ii) except as set forth on Schedule 3.5, violate or conflict with, or
result in a breach of any provision of, or constitute a default (or an event
which with notice or lapse of time or both could become a default) under, or
give to others any rights of termination, amendment, acceleration or
cancellation of, any agreement, indenture, patent, patent license or instrument
to which the Company or any of its Subsidiaries is a party, or (iii) result in a
violation of any law, rule, regulation, order, judgment or decree (including
federal and state securities laws and regulations and regulations of any
self-regulatory organizations to which the Company or its securities are
subject) applicable to the Company or any of its Subsidiaries or by which any
property or asset of the Company or any of its Subsidiaries is bound or affected
(except for such conflicts, defaults, terminations, amendments, accelerations,
cancellations and violations as would not, individually or in the aggregate,
have a Material Adverse Effect). Neither the Company nor any of its Subsidiaries
is in violation of its Certificate of Incorporation, Bylaws or other
organizational documents and neither the Company nor any of its Subsidiaries is
in default (and no event has occurred which with notice or lapse of time or both
could put the Company or any of its Subsidiaries in default) under, and neither
the Company nor any of its Subsidiaries has taken any action or failed to take
any action that would give to others any rights of termination, amendment,
acceleration or cancellation of, any agreement, indenture or instrument to which
the Company or any of its Subsidiaries is a party or by which any property or
assets of the Company or any of its Subsidiaries is bound or affected, except
for possible defaults as would not, individually or in the aggregate, have a
Material Adverse Effect. The businesses of the Company and its Subsidiaries, if
any, are not being conducted, and shall not be conducted so long as a Investor
owns any of the Securities, in violation of any law, ordinance or regulation of
any governmental entity, except for possible or actual violations, if any, the
sanctions for which would not, individually or in the aggregate, have a Material
Adverse Effect. Except as specifically contemplated by this Agreement, except as
set forth on Schedule 3.5 hereto, and except as required under the Securities
Act and any applicable state
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securities laws, the Company is not required to obtain any consent,
authorization or order of, or make any filing or registration with, any court,
governmental agency, regulatory agency, self regulatory organization or stock
market or any third party in order for it to execute, deliver or perform any of
its obligations under this Agreement, the Registration Rights Agreement or the
Warrants in accordance with the terms hereof or thereof or to issue and sell the
Shares and Warrants in accordance with the terms hereof and to issue the Warrant
Shares upon exercise of the Warrants. Except as disclosed in Schedule 3.5, all
consents, authorizations, orders, filings and registrations which the Company is
required to obtain pursuant to the preceding sentence have been obtained or
effected on or prior to the date hereof. The Company is not in violation of the
listing requirements of the Nasdaq National Market and does not reasonably
anticipate that the Common Stock will be desisted from the Nasdaq National
Market in the foreseeable future. The Company and its Subsidiaries are unaware
of any facts or circumstances which might reasonably be expected to give rise to
any of the foregoing.
3.6 SEC Documents; Financial Statements. Since January 1, 2000, the
Company has timely filed all reports, schedules, forms, statements and other
documents required to be filed by it with the Securities and Exchange Commission
pursuant to the reporting requirements of the Securities Exchange Act of 1934,
as amended (the "Exchange Act") (all of the foregoing filed prior to the date
hereof and all exhibits included therein and financial statements and schedules
thereto and documents (other than exhibits to such documents) incorporated by
reference therein, being hereinafter referred to herein as the "SEC Documents").
The Company has delivered to each Investor true and complete copies of any SEC
Documents, specifically requested by Investor or not filed via the Securities
and Exchange Commission's ▇▇▇▇▇ database, except for exhibits and incorporated
documents, and the Company understands that Investor has secured copies of the
remainder of such SEC Documents from the Securities and Exchange Commission's
▇▇▇▇▇ database through the world wide web. As of their respective dates, the SEC
Documents complied in all material respects with the requirements of the
Exchange Act and the rules and regulations of the Securities and Exchange
Commission promulgated thereunder applicable to the SEC Documents, and none of
the SEC Documents, at the time they were filed with the Securities and Exchange
Commission, contained any untrue statement of a material fact or omitted to
state a material fact required to be stated therein or necessary in order to
make the statements therein, in light of the circumstances under which they were
made, not misleading. None of the statements made in any such SEC Documents is,
or has been, required to be amended or updated under applicable law (except for
such statements as have been amended or updated in subsequent filings prior to
the date hereof). As of their respective dates, the financial statements of the
Company included in the SEC Documents complied as to form in all material
respects with applicable accounting requirements and the published rules and
regulations of the Securities and Exchange Commission with respect thereto. Such
financial statements have been prepared in accordance with United States
generally accepted accounting principles, consistently applied, during the
periods involved (except (i) as may be otherwise indicated in such financial
statements or the notes thereto, or (ii) in the case of unaudited interim
statements, to the extent they may not include footnotes or may be condensed or
summary statements) and fairly present in all material respects the consolidated
financial position of the Company and its consolidated Subsidiaries as of the
dates thereof and the consolidated results of their operations and cash flows
for the periods then ended (subject, in the case of unaudited statements, to
normal year-end audit adjustments). Except as set forth in the SEC Documents,
the Company has no liabilities, contingent or otherwise, other than (i)
liabilities incurred in the ordinary course of business subsequent to the date
of such SEC Documents and (ii) obligations under contracts and commitments
incurred in the ordinary course of business and not required under generally
accepted accounting principles to be reflected in such SEC Documents, which
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liabilities and obligations referred to in clauses (i) and (ii), individually or
in the aggregate, would not have a Material Adverse Effect.
3.7 Absence of Certain Changes. Except as disclosed in the SEC
Documents, since December 31, 2001, there has been no change or development
which individually or in the aggregate has had or could reasonably be expected
to have a Material Adverse Effect.
3.8 Absence of Litigation. Except as disclosed in the SEC Documents,
there is no action, suit, claim, proceeding or, to the knowledge of the Company
and its Subsidiaries, inquiry or investigation before or by any court, public
board, government agency, self-regulatory organization or body pending or, to
the knowledge of the Company or any of its Subsidiaries, threatened against or
affecting the Company or any of its Subsidiaries, or their officers or directors
in their capacity as such, that could have a Material Adverse Effect.
3.9 Intellectual Property. The Company and each of its subsidiaries
owns or is licensed to use all patents, patent applications, trademarks,
trademark applications, trade names, service marks, copyrights, copyright
applications, licenses, permits, know-how (including trade secrets and other
unpatented and/or unpatentable proprietary or confidential information, systems
or procedures) and other similar rights and proprietary knowledge (collectively,
"Intellectual Property") necessary for the conduct of its business as now being
conducted and as proposed to be conducted. Except as disclosed in the SEC
Documents, neither the Company nor any of its subsidiaries has received written
notice that it is infringing upon or in conflict with any third party
Intellectual Property. Except as set forth on Schedule 3.9, neither the Company
nor any of its subsidiaries has entered into any consent, indemnification,
forbearance to ▇▇▇ or settlement agreements with respect to the validity of the
Company's or such subsidiary's ownership or right to use its Intellectual
Property. The Company's Intellectual Property is valid and enforceable, and no
registration relating thereto has lapsed, expired or been abandoned or canceled
or is the subject of cancellation or other adversarial proceedings, and all
applications therefor are pending and in good standing. The Company has complied
with its contractual obligations relating to the protection of the Intellectual
Property used pursuant to licenses. To the Company's knowledge, no person is
infringing on or violating the Intellectual Property owned or used by the
Company.
3.10 Environment. (i) There is no environmental liability, nor
factors likely to give rise to any environmental liability, affecting any of the
properties of the Company or any of its subsidiaries that, individually or in
the aggregate, would have a Material Adverse Effect and (ii) neither the Company
nor any of the subsidiaries has violated any environmental law applicable to it
now or previously in effect, other than such violations or infringements that,
individually or in the aggregate, have not had and will not have a Material
Adverse Effect.
3.11 Title. The Company and each of its subsidiaries has good title
in fee simple to all real property and good title to all personal property owned
by it which is material to its business, free and clear of all liens,
encumbrances and defects except for such defects in title that, individually or
in the aggregate, could not have a Material Adverse Effect. Any real property
and facilities held under lease by the Company or any of its subsidiaries are
held by the Company or such subsidiary under valid, subsisting and enforceable
leases with such exceptions which have not had and will not have a Material
Adverse Effect.
3.12 Insurance. The Company and its subsidiaries maintain such
insurance relating to their business, operations and assets as is appropriate to
their business, assets and
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operations, in such amounts and against such risks as are customarily carried
and insured against by owners of comparable businesses, assets and operations,
and such insurance coverages will be continued in full force and effect to and
including the Closing Date other than those insurance coverages in respect of
which the failure to continue in full force and effect could not reasonably be
expected to have a Material Adverse Effect.
3.13 No Brokers. The Company has not engaged any person to which or
to whom brokerage commissions, finder's fees, financial advisory fees or similar
payments are or will become due in connection with this Agreement or the
transactions contemplated hereby.
3.14 Tax Status. The Company and each of its subsidiaries has made or
filed all material federal, state and local income and all other tax returns,
reports and declarations required by any jurisdiction to which it is subject
(unless and only to the extent that the Company or the applicable subsidiary has
set aside on its books provisions adequate for the payment of all unpaid and
unreported taxes) and has paid all taxes and other governmental assessments and
charges that are material in amount, shown or determined to be due on such
returns, reports and declarations, except those being contested in good faith
and has set aside on its books provisions adequate for the payment of all taxes
for periods subsequent to the periods to which such returns, reports or
declarations apply. There are no material unpaid taxes claimed to be due by the
taxing authority of any jurisdiction. The Company has not executed a waiver with
respect to any statute of limitations relating to the assessment or collection
of any federal, state or local tax. None of the Company's tax returns have been
or is being audited by any taxing authority.
3.15 No General Solicitation. Neither the Company nor any person
participating on the Company's behalf in the transactions contemplated hereby
has conducted any "general solicitation" or "general advertising" as such terms
are used in Regulation D, with respect to any of the Securities being offered
hereby.
3.16 Securities Laws. Neither the Company, nor any of its affiliates,
nor any person acting on its or their behalf, has, directly or indirectly, made
any offers or sales of any security or solicited any offers to buy any security
under circumstances that would require registration of the Securities being
offered hereby under the Securities Act or cause this offering of Securities to
be integrated with any prior offering of securities of the Company for purposes
of the Securities Act. The offer, sale and delivery of shares of Common Stock
upon exercise of the Warrants will be exempt from the registration requirements
of Section 5 of the Securities Act. Assuming the truth and accuracy of the
representations and warranties of the Investors set forth in Section 2 of this
Agreement, the Investors will not be statutory underwriters within the meaning
of Section 2(a)11 of the Securities Act.
3.17 Form S-3 Eligibility. The Company is currently eligible to
register the resale of its Common Stock on a registration statement on Form S-3
under the Securities Act. Except for obtaining the waivers disclosed on Schedule
3.5, there exist no facts or circumstances (including without limitation any
required approvals or waivers of any circumstances that may delay or prevent the
obtaining of accountant's consents) that would prohibit or delay the preparation
and filing of a registration statement on Form S-3 with respect to the
Registrable Securities (as defined in the Registration Rights Agreement).
3.18 Disclosure. All information relating to or concerning the
Company and its subsidiaries set forth in this Agreement or provided to the
Investors pursuant to Section 2.4 hereof and otherwise in connection with the
transactions contemplated hereby is true and
9
correct in all material respects and the Company has not omitted to state any
material fact necessary in order to make the statements made herein or therein,
in light of the circumstances under which they were made, not misleading. No
event or circumstance has occurred or exists with respect to the Company or its
subsidiaries or their businesses, properties, operations, prospects or financial
conditions, which has not been publicly disclosed but, under applicable law,
rule or regulation, would be required to be disclosed by the Company in a
registration statement filed on the date hereof by the Company under the
Securities Act with respect to a primary issuance of the Company's securities.
3.19 Foreign Corrupt Practices. Neither the Company, nor any of its
Subsidiaries, nor any director, officer, agent, employee or other person acting
on behalf of the Company or any Subsidiary has, in the course of his actions
for, or on behalf of, the Company, used any corporate funds for any unlawful
contribution, gift, entertainment or other unlawful expenses relating to
political activity; made any direct or indirect unlawful payment to any foreign
or domestic government official or employee from corporate funds; violated or is
in violation of any provision of the U.S. Foreign Corrupt Practices Act of 1977;
or made any bribe, rebate, payoff, influence payment, kickback or other unlawful
payment to any foreign or domestic government official or employee.
3.20 No Investment Company. The Company is not, and upon the issuance
and sale of the Securities as contemplated by this Agreement and the Warrants
will not be, an "investment company" required to be registered under the
Investment Company Act of 1940 (an "Investment Company"). The Company is not
controlled by an Investment Company.
4. Covenants.
4.1 Best Efforts. The parties shall use their best efforts to satisfy
timely each of the conditions described in Sections 5 and 6 of this Agreement;
provided, however, that the foregoing shall not obligate the Company to waive
any closing conditions to the Merger.
4.2 Form D; Blue Sky Laws. The Company agrees to file a Form D with
respect to the Securities as required under Regulation D and to provide a copy
thereof to each Investor promptly after such filing. The Company shall, on or
before the Closing Date, take such action as the Company shall reasonably
determine is necessary to qualify the Securities for sale to the Investors at
the Closing pursuant to this Agreement under applicable securities or "blue sky"
laws of the states of the United States (or to obtain an exemption from such
qualification), and shall provide evidence of any such action so taken to each
Investor on or prior to the Closing Date.
4.3 Reporting Status; Eligibility to Use Form S-3. The Company's
Common Stock is registered under Section 12(g) of the Exchange Act. So long as
any Investor beneficially owns any of the Securities, the Company shall timely
file all reports required to be filed with the SEC pursuant to the Exchange Act,
and the Company shall not terminate its status as an issuer required to file
reports under the Exchange Act even if the Exchange Act or the rules and
regulations thereunder would permit such termination. The Company currently
meets, and will take all necessary action to continue to meet, the "registrant
eligibility" requirements set forth in the general instructions to Form S-3 for
the resale of Common Stock by the Investors. The Company shall issue a press
release describing the materials terms of the transaction contemplated hereby
within one (1) business of the Closing Date and shall file with the SEC a
Current Report on Form 8-K describing the material terms of the transaction
10
contemplated hereby within three (3) business days of the Closing Date, which
press release and Form 8-K shall be subject to prior review by the Investors.
4.4 Use of Proceeds. The Company shall use the proceeds from the sale
of the Shares and the Warrants in the manner set forth in Schedule 4.4.
4.5 Reservation of Shares. The Company shall at all times have
authorized, and reserved for the purpose of issuance, a sufficient number of
shares of Common Stock to provide for the full exercise of the Warrants. The
Company shall not reduce the number of shares of Common Stock reserved for
issuance upon exercise of the Warrants (except as a result of the issue of the
Warrant Shares upon the exercise of the Warrants) without the consent of the
Investors.
4.6 Listing. On the Closing Date, the Company shall have applied for
the listing of the Shares and Warrant Shares, in each case, upon each national
securities exchange and automated quotation system, if any, upon which shares of
Common Stock are then listed or quoted and shall maintain, so long as any other
shares of Common Stock shall be so listed, such listing of all Shares from time
to time issuable hereunder and all Warrant Shares from time to time issuable
upon exercise of the Warrants. The Company shall use its best efforts to keep
its shares of Common Stock listed in The Nasdaq Stock Market and will comply in
all respects with the Company's reporting, filing and other obligations under
the bylaws or rules of The Nasdaq Stock Market.
4.7 No Integration. The Company shall not make any offers or sales of
any security (other than the Securities) under circumstances that would require
registration of the Securities being offered or sold hereunder under the
Securities Act or cause the offering of Securities to be integrated with any
other offering of securities by the Company for the purpose of any stockholder
approval provision applicable to the Company or its securities.
5. Conditions to the Company's Obligation to Sell. The obligation of the
Company hereunder to issue and sell the Shares and Warrants to the Investors at
the Closing is subject to the satisfaction, at or before the Closing Date, of
each of the following conditions thereto, provided that these conditions are for
the Company's sole benefit and may be waived in writing by the Company at any
time in its sole discretion:
5.1 All of the Investors shall have executed this Agreement and the
Registration Rights Agreement, and delivered the same to the Company.
5.2 All of the Investors shall have delivered the Purchase Price in
accordance with Section 1.2 above.
5.3 The representations and warranties of all of the Investors shall
be true and correct in all material respects as of the date when made and as of
the Closing Date as though made at that time (except for representations and
warranties that speak as of a specific date, which representations and
warranties shall be true and correct as of such date), and all of the Investors
shall have performed, satisfied and complied in all material respects with the
covenants, agreements and conditions required by this Agreement to be performed,
satisfied or complied with by the Investors at or prior to the Closing Date.
5.4 No litigation, statute, rule, regulation, executive order,
decree, ruling or injunction shall have been enacted, entered, promulgated or
endorsed by or in any court or
11
governmental authority of competent jurisdiction or any self-regulatory
organization having authority over the matters contemplated hereby which
prohibits the consummation of any of the transactions contemplated by this
Agreement.
5.5 The Company shall have consummated the transactions contemplated
by the Agreement and Plan of Merger (the "Merger Agreement") dated on or about
October 10, 2002 by and among the Company, STI Acquisition, Inc. and Conductus,
Inc. (the "Merger").
5.6 The purchase of the Shares and Warrants by each Investor shall
have closed, resulting in gross aggregate proceeds to the Company on the Closing
Date of not less than $15,000,000 nor more than $20,000,000.
6. Conditions to Each Investor's Obligation to Purchase. The obligation
of each Investor hereunder to purchase the Shares and Warrants at the Closing is
subject to the satisfaction, at or before the Closing Date, of each of the
following conditions, provided that these conditions are for such Investor's
sole benefit and may be waived in writing by such Investor at any time in its
sole discretion:
6.1 The Company shall have executed this Agreement and the
Registration Rights Agreement, and delivered the same to the Investor.
6.2 The Company shall have delivered to such Investor duly executed
certificates (in such denominations as the Investor shall request) representing
the Shares and duly executed Warrants in accordance with Section 1.2 above.
6.3 The Shares shall be authorized for quotation on The Nasdaq Stock
Market and trading in the Common Stock or The Nasdaq Stock Market generally
shall not have been suspended or be under threat of suspension by the SEC or any
governing body of The Nasdaq Stock Market.
6.4 The representations and warranties of the Company shall be true
and correct in all material respects as of the date when made and as of the
Closing Date as though made at such time (except for representations and
warranties that speak as of a specific date, which representations and
warranties shall be true and correct as of such date) and the Company shall have
performed, satisfied and complied in all material respects with the covenants,
agreements and conditions required by this Agreement to be performed, satisfied
or complied with by the Company at or prior to the Closing Date. The Investor
shall have received a certificate or certificates, executed by the chief
executive officer or chief financial officer of the Company, dated as of the
Closing Date, to the foregoing effect and as to such other matters as may be
reasonably requested by such Investor including, but not limited to,
certificates with respect to the Company's Certificate of Incorporation, Bylaws
and Board of Directors' resolutions relating to the transactions contemplated
hereby.
6.5 No litigation, statute, rule, regulation, executive order,
decree, ruling or injunction shall have been enacted, entered, promulgated or
endorsed by or in any court or governmental authority of competent jurisdiction
or any self-regulatory organization having authority over the matters
contemplated hereby which prohibits the consummation of any of the transactions
contemplated by this Agreement.
12
6.6 The Company shall have provided advance notice to The Nasdaq
Stock Market of the issuance of the Shares and Warrant Shares if so required by
the rules applicable thereto.
6.7 The Investor shall have received an opinion of the Company's
counsel, dated as of the Closing Date, in form, scope and substance reasonably
satisfactory to the Investor and in substantially the same form as Exhibit C
attached hereto.
6.8 From the date of this Agreement through the Closing Date, there
shall not have occurred any Material Adverse Effect.
6.9 The Company shall have consummated the Merger.
6.10 The purchase of the Shares and Warrants by each Investor shall
have closed, resulting in gross aggregate proceeds to the Company (including
from the Investor) on the Closing Date of not less than $15,000,000 nor more
than $20,000,000.
7. Confidentiality. Each Investor severally agrees on behalf of itself
to maintain the confidentiality of the Merger as follows:
7.1 Definitions. "Disclosing Parties" means the Company and
Conductus, Inc., the parties to the Merger. "Confidential Information" means all
information or material concerning the Merger and the combined operations of the
two companies following the Merger which has been or is hereafter disclosed to
the Investor by either Disclosing Party, whether or not such information is
identified as Confidential Information by one or both Disclosing Parties.
"Recipient" means an Investor and all its affiliates, subsidiaries, and related
companies of Recipient. "Representative" means Recipient's directors, officers,
employees, agents, and financial, legal, and other advisors.
7.2 Expiration Date; Filing of Merger Announcement. The "Expiration
Date" shall be the date of filing of a Form 8-K with the Securities Exchange
Commission publicly announcing the Merger or such earlier date as the Merger is
terminated. The Company shall issue a press release describing the materials
terms of the Merger and file a copy of such press release with the SEC on Form
8-K within one (1) business of execution of the Merger Agreement but in no event
later than five (5) business days after execution of the Merger Agreement.
7.3 Exclusions. Confidential Information does not include information
that Recipient can demonstrate: (a) was in Recipient's possession prior to its
being furnished to Recipient, provided the source of that information was not
known by Recipient to be bound by a confidentiality agreement with or other
continual, legal or fiduciary obligation of confidentiality to either of the
Disclosing Parties; (b) is now, or hereafter becomes, through no act or failure
to act on the part of Recipient, generally known to the public; (c) is
rightfully obtained by Recipient from a third party, without breach of any
obligation to either of the Disclosing Parties; or (d) is independently
developed by Recipient without use of or reference to the Confidential
Information.
7.4 Confidentiality. Recipient agrees to use the Confidential
Information solely for the purpose of evaluating an investment in the entity
formed upon completion of the Merger. Prior to the Expiration Date, Recipient
and its Representatives shall not disclose any of the Confidential Information
in any manner whatsoever, except as otherwise provided in
13
Sections 7.5 and 7.6 of this Agreement, and shall hold and maintain the
Confidential Information in confidence.
7.5 Permitted Disclosures. Prior to the Expiration Date, Recipient
may disclose Confidential Information to Recipient's Representatives with a bona
fide need to know such Confidential Information, but only to the extent
necessary for such Representatives to perform services for Recipient in
connection with Recipient's purpose in obtaining the information. Recipient
shall be fully responsible hereunder for any unauthorized disclosure or use of
Confidential Information by any of Recipient's Representatives.
7.6 Required Disclosures. Prior to the Expiration Date, Recipient may
disclose Confidential Information if and to the extent that such disclosure is
required by court order, provided that Recipient provides each of the Disclosing
Parties a reasonable opportunity to review the disclosure before it is made and
to interpose its own objection to the disclosure or seek to limit the disclosure
or maintain confidentiality after disclosure.
7.7 Covenant Not to Trade Securities. Prior to the Expiration Date,
Recipient and its Representatives may not buy, sell, trade or engage in any
other transaction involving securities issued by either of the Disclosing
Parties, including, without limitation, any option contract to buy or sell
securities issued by either of the Disclosing Parties.
7.8 Irreparable Harm. Recipient understands and acknowledges that any
disclosure or misappropriation of any of the Confidential Information in
violation of this Agreement may cause either of the Disclosing Parties
irreparable harm, the amount of which may be difficult to ascertain, and
therefore agrees that each of the Disclosing Parties shall have the right to
apply to a court of competent jurisdiction for specific performance and/or an
order restraining and enjoining any such further disclosure or breach and for
such other relief as such Disclosing Party shall deem appropriate. Such right of
each of the Disclosing Parties is to be in addition to the remedies otherwise
available to such Disclosing Party at law or in equity. Recipient expressly
waives the defense that a remedy in damages will be adequate and any requirement
in an action for specific performance or injunction for the posting of a bond by
a Disclosing Party.
7.9 Existing Confidentiality Agreements. The provisions of this
Section 7 supersede in their entirety any existing confidentiality or
non-disclosure agreements in effect concerning the Merger and the investments
contemplated herein, and such agreements shall terminate upon execution of this
Agreement by the Company. The termination of such agreements does not relieve
any party from liability for any breaches prior to the date of this Agreement.
8. Company's Board of Directors. The Company shall take all steps
necessary to add the following individuals to its board of directors: (a) ▇▇.
▇▇▇▇ ▇▇▇▇▇, or another person acceptable to the current directors of the Company
designated by Alloy Ventures 2002, LLC, as of the date of the next annual
stockholder meeting and (b) one individual as of the Closing Date acceptable to
the current directors of the Company designated jointly by Special Situations
Fund III, L.P., Special Situations Fund Cayman, L.P., Special Situations Private
Equity Fund, L.P. and Special Situations Technology Fund, L.P.
14
9. Additional Investors.
9.1 Conditions for Additional Investors. The transaction contemplated
by this Agreement is intended to generate a minimum of $15,000,000 and a maximum
of $20,000,000 gross proceeds to the Company on the Closing Date. The sale of
securities hereunder to the Investors initially executing this Agreement on the
date hereof (the "Initial Investors") will meet the minimum gross proceeds
requirement. The Company may add additional Investors (the "Additional
Investors") to this Agreement prior to the Closing by having them execute a
signature page to this Agreement for the sale of additional securities at the
price and on the terms specified herein provided (a) the aggregate of all sales
to Investors hereunder does not exceed $20,000,000 and (b) the Company has
obtained the consent of Alloy Ventures 2002, LLC and Wellington Management
Company, LLP (which consent will not be unreasonably withheld) to the sale of
securities hereunder to the Additional Investors. Except as permitted in this
Section 9 and subject to Section 9.3, the Company will not contract with any
party to obtain additional equity financing beginning on the date hereof and
ending on the Closing Date.
9.2 Right of First Refusal. Each time the Company desires to add an
Additional Investor, the Company will first deliver to each Initial Investor by
facsimile or email at least forty-eight (48) hours in advance a notice naming
the Additional Investor and proposed amount of the investment (such investment
to be at the price and on the terms specified in this Agreement). The Initial
Investors and their affiliates will have an option for forty-eight (48) hours to
purchase any or all of the securities being offered to the Additional Investor
on the same price and terms as specified in this Agreement. Any Initial Investor
may exercise such option by giving notice by facsimile or email to the Company's
Chief Financial Officer within such 48-hour period to buy a specified amount of
the offered securities. The closing of the sale to Additional Investors and
Initial Investors exercising their option rights shall be contemporaneous with
the Closing under this Agreement. To the extent that the Initial Investors, in
the aggregate, elect to purchase more than all of such securities, the amount
that each Initial Investor shall be entitled to purchase shall be pro rated
based on the Initial Investor's Pro Rata Percentage. "Pro Rata Percentage"
means, with respect to any Initial Investor, a percentage computed by dividing
the Purchase Price paid hereunder by such Initial Investor by the aggregate
Purchase Price paid hereunder by all of the Initial Investors.
9.3 Permitted Transactions. The limitations referred to in Sections
9.1 and 9.2 shall not apply to (i) any transaction involving issuances of
securities as consideration in a merger, consolidation or acquisition of assets,
or in connection with any strategic partnership, collaboration or joint venture
(the primary purpose of which is not to raise capital), or as consideration for
the acquisition of a business, product or license by the Company, (ii) the
issuance of securities upon exercise or conversion of the Company's options,
warrants or other convertible securities outstanding as of the date hereof or
issued pursuant to this Agreement, (iii) the grant of additional options or
warrants, or the issuance of additional securities, under any duly authorized
Company stock option, stock purchase or restricted stock plan for the benefit of
the Company's employees, consultants or directors; (iv) the issuance of
securities in connection with the settlement of litigation; or (v) the issuance
of warrants incidental to any revolving credit or similar debt financing from a
financial institution engaged in the business of lending money such as a bank,
trust company, insurance company or other institutional lender.
10. Governing Law; Miscellaneous.
10.1 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
15
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 Investor
irrevocably waives the defense of an inconvenient forum to the maintenance of
such suit or proceeding. The Company and each Investor 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.
10.2 Counterparts; Signatures by Facsimile. This Agreement may be
executed in two or more counterparts, all of which shall be considered one and
the same agreement and shall become effective when counterparts have been signed
by each party and delivered to the other party. This Agreement, once executed by
a party, may be delivered to the other parties hereto by facsimile transmission
of a copy of this Agreement bearing the signature of the party so delivering
this Agreement. In the event any signature is delivered by facsimile
transmission, the party using such means of delivery shall cause the manually
executed signature page to be physically delivered to the other parties within
five (5) days of its execution.
10.3 Headings. The headings of this Agreement are for convenience of
reference and shall not form part of, or affect the interpretation of, this
Agreement.
10.4 Severability. If any provision of this Agreement shall be
invalid or unenforceable in any jurisdiction, such invalidity or
unenforceability shall not affect the validity or enforceability of the
remainder of this Agreement or the validity or enforceability of this Agreement
in any other jurisdiction.
10.5 Entire Agreement; Amendments. This Agreement and the
instruments referenced herein contain the entire understanding of the parties
with respect to the matters covered herein and therein and, except as
specifically set forth herein or therein, neither the Company nor the Investors
make any representation, warranty, covenant or undertaking with respect to such
matters. No provision of this Agreement may be waived or amended other than by
an instrument in writing signed by the Company and, by the Investors as provided
in Section 10.14.
10.6 Notices. Any notices required or permitted to be given under
the terms of this Agreement shall be sent by certified or registered mail
(return receipt requested) or delivered personally or by courier (including a
recognized overnight delivery service) or by facsimile and shall be effective
five days after being placed in the mail, if mailed by regular United States
mail, or upon receipt, if delivered personally or by courier (including a
recognized overnight delivery service) or by facsimile, in each case addressed
to a party. The addresses for such communications shall be:
16
If to the Company:
Superconductor Technologies Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: President and Chief Executive Officer
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
With copy to:
▇▇▇▇|▇▇▇▇▇▇▇▇▇▇▇ LLP
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇, Esq.
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
If to an Investor: To the address set forth immediately next to such
Investor's name on the signature pages hereto.
Each party shall provide notice to the other party of any change in
address.
10.7 Successors and Assigns. This Agreement shall be binding upon
and inure to the benefit of the parties and their successors and assigns.
Neither the Company nor any Investor shall assign this Agreement or any rights
or obligations hereunder without the prior written consent of the other.
Notwithstanding the foregoing, subject to Section 2.6, any Investor may assign
its rights hereunder to any person that purchases Securities in a private
transaction from an Investor or to any of its "affiliates," as that term is
defined under the Exchange Act, without the consent of the Company.
10.8 Third Party Beneficiaries. This Agreement is intended for the
benefit of the parties hereto and their respective permitted successors and
assigns, and is not for the benefit of, nor may any provision hereof be enforced
by, any other person.
10.9 Survival. The representations and warranties of the Company and
the agreements and covenants of the Company shall survive the Closing
notwithstanding any due diligence investigation conducted by or on behalf of the
Investors; provided that the representations and warranties made to any Investor
in Section 3 shall terminate on the earlier of (i) two (2) years from the date
of discovery by such Investor of a breach thereof and (ii) three (3) years from
the Closing Date. The Company agrees to indemnify and hold harmless each
Investor and each of such Investor's officers, directors, employees, partners,
members, agents and affiliates for loss or damage relating to the Securities
purchased hereunder arising as a result of or related to any breach by the
Company of any of its representations or covenants set forth herein.
10.10 Further Assurances. Each party shall do and perform, or cause
to be done and performed, all such further acts and things, and shall execute
and deliver all such other agreements, certificates, instruments and documents,
as the other party may reasonably
17
request in order to carry out the intent and accomplish the purposes of this
Agreement and the consummation of the transactions contemplated hereby.
10.11 No Strict Construction. The language used in this Agreement
will be deemed to be the language chosen by the parties to express their mutual
intent, and no rules of strict construction will be applied against any party.
With respect to the Company, "knowledge" shall mean the actual knowledge of the
Company's directors, its Chief Executive Officer, Chief Financial Officer, Chief
Technology Officer or any Vice President.
10.12 Equitable Relief. Each party acknowledges that a breach by it
of its obligations hereunder will cause irreparable harm to the other parties by
vitiating the intent and purpose of the transactions contemplated hereby.
Accordingly, each party acknowledges that the remedy at law for a breach of its
obligations hereunder will be inadequate and agrees, in the event of a breach or
threatened breach by such party of the provisions of this Agreement, that the
other parties shall be entitled, in addition to all other available remedies, to
an injunction restraining any breach and requiring immediate issuance and
transfer, without the necessity of showing economic loss and without any bond or
other security being required.
10.13 Termination. In the event that the Closing Date shall not have
occurred on or before February 15, 2003 or the Merger Agreement is terminated
prior thereto, unless the parties agree otherwise, this Agreement shall
terminate at the close of business on such date. Notwithstanding any termination
of this Agreement, any party not in breach of this Agreement shall preserve all
rights and remedies it may have against another party hereto for a breach of
this Agreement prior to or relating to the termination hereof.
10.14 Determinations. Except as otherwise expressly provided herein,
all consents, approvals and other determinations to be made by the Investors
pursuant to this Agreement and all waivers and amendments to or of any
provisions in this Agreement prior to the Closing Date to be binding upon a
Investors shall be made by such Investor and 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).
10.15 Expenses. The parties hereto shall pay their own costs and
expenses in connection herewith, except that the Company shall (a) pay at the
Closing the reasonable fees and expenses of counsel to the Investors (not to
exceed $30,000 for the work performed up to and including the date hereof)
related to the negotiation of this Agreement and the other Transaction
Documents, and (b) reimburse the Investors upon demand for all reasonable
out-of-pocket expenses incurred by the Investors, including without limitation
reimbursement of attorneys' fees and disbursements, in connection with any
amendment, modification or waiver of this Agreement or the other Transaction
Documents.
10.16 Waiver of Conflicts. Each of the parties acknowledges that
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, counsel for the Investors, has performed
legal services for Conductus, Inc. in a variety of matters including in
connection with the Merger and will serve as tax counsel to the Company in
connection with the Merger. Accordingly, each Investor waives any conflict of
interest arising from such representation. Each Investor is giving such waiver
18
based on the understanding that ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP has agreed
that it will not represent the Investors (individually or as a group) in any
litigation matter relating to the transactions contemplated hereby without a
further waiver from the relevant Investors and the Company.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
19
Signature Page to Securities Purchase 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: /s/ M. ▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------------
M. ▇▇▇▇▇ ▇▇▇▇▇▇
President and Chief Executive Officer
"INVESTORS"
RESIDENCE: California ALLOY VENTURES 2002, L.P.
Investment Amount: $4,868,549.55
---------------
Common Shares: 5,124,789
-------------------
Warrant Shares: 1,281,197 By:/s/ ▇▇▇▇ ▇. ▇▇▇▇▇
------------------ -------------------------------------
Alloy Ventures 2002, LLC
Address for Notice: Title: General Partner
▇▇▇▇ ▇. ▇▇▇▇▇, Ph.D.
Alloy Ventures Managing Member of
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇ Alloy Ventures 2002, LLC
▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
RESIDENCE: California ALLOY PARTNERS 2002, L.P.
Investment Amount: $131,450.55
---------------
Common Shares: 138,369
-------------------
Warrant Shares: 34,592 By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
------------------ -------------------------------------
Alloy Ventures 2002, LLC
Address for Notice: Title: General Partner
▇▇▇▇ ▇. ▇▇▇▇▇, Ph.D.
Alloy Ventures Managing Member of
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇ Alloy Ventures 2002, LLC
▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
S-1
RESIDENCE: Delaware WILMINGTON SECURITIES, INC.
Investment Amount: $2,116,500
------------
Common Shares: 2,227,895
----------------
Warrant Shares: 556,974 By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
--------------- -----------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, President
Address for Notice:
Wilmington Securities, Inc.
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
RESIDENCE: Pennsylvania ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ AND
▇.▇. ▇▇▇▇▇▇▇▇▇▇▇▇, TRUSTEES OF THE ▇▇▇▇▇ ▇.
Investment Amount: $187,500 ▇▇▇▇▇▇▇ TRUST U/A/T DATED NOVEMBER 18, 1985
----------
Common Shares: 197,368
--------------
Warrant Shares: 49,342
-------------
By: /s/ ▇.▇. ▇▇▇▇▇▇▇▇▇▇▇▇
-----------------------------------------
Address for Notice: ▇.▇. ▇▇▇▇▇▇▇▇▇▇▇▇, Trustee
c/o ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
The ▇▇▇▇▇▇▇ Company
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
RESIDENCE: Pennsylvania ▇.▇. ▇▇▇▇▇▇▇▇▇▇▇▇ AND ▇.▇. ▇▇▇▇▇▇,
TRUSTEES U/A/T DATED DECEMBER 30, 1976 FOR
Investment Amount: $49,000 THE CHILDREN OF JULIET ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
----------
Common Shares: 51,579
--------------
Warrant Shares: 12,895
-------------
By: /s/ ▇.▇. ▇▇▇▇▇▇▇▇▇▇▇▇
-----------------------------------------
Address for Notice: ▇.▇. ▇▇▇▇▇▇▇▇▇▇▇▇, Trustee
c/o ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
The ▇▇▇▇▇▇▇ Company By: /s/ ▇.▇. ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ -----------------------------------------
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇.▇. ▇▇▇▇▇▇, Trustee
S-2
RESIDENCE: Pennsylvania ▇.▇. ▇▇▇▇▇▇▇▇▇▇▇▇ AND ▇.▇. ▇▇▇▇▇▇,
TRUSTEES U/A/T DATED DECEMBER 30, 1976 FOR
Investment Amount: $49,000 THE CHILDREN OF ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
----------
Common Shares: 51,579
--------------
Warrant Shares: 12,895
-------------
By: /s/ ▇.▇. ▇▇▇▇▇▇▇▇▇▇▇▇
--------------------------------------
Address for Notice: ▇.▇. ▇▇▇▇▇▇▇▇▇▇▇▇, Trustee
c/o ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
The ▇▇▇▇▇▇▇ Company By: /s/ ▇.▇. ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ --------------------------------------
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇.▇. ▇▇▇▇▇▇, Trustee
RESIDENCE: Pennsylvania ▇.▇. ▇▇▇▇▇▇▇▇▇▇▇▇ AND ▇.▇. ▇▇▇▇▇▇,
TRUSTEES U/A/T DATED DECEMBER 30, 1976 FOR
Investment Amount: $49,000 THE CHILDREN OF ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇, ▇▇.
----------
Common Shares: 51,579
--------------
Warrant Shares: 12,895
-------------
By: /s/ ▇.▇. ▇▇▇▇▇▇▇▇▇▇▇▇
--------------------------------------
Address for Notice: ▇.▇. ▇▇▇▇▇▇▇▇▇▇▇▇, Trustee
c/o ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
The ▇▇▇▇▇▇▇ Company By: /s/ ▇.▇. ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ --------------------------------------
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇.▇. ▇▇▇▇▇▇, Trustee
RESIDENCE: Pennsylvania ▇.▇. ▇▇▇▇▇▇▇▇▇▇▇▇ AND ▇.▇. ▇▇▇▇▇▇,
TRUSTEES U/A/T DATED DECEMBER 30, 1976 FOR
Investment Amount: $49,000 THE CHILDREN OF ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
----------
Common Shares: 51,579
--------------
Warrant Shares: 12,895
-------------
By: /s/ ▇.▇. ▇▇▇▇▇▇▇▇▇▇▇▇
--------------------------------------
Address for Notice: ▇.▇. ▇▇▇▇▇▇▇▇▇▇▇▇, Trustee
c/o ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
The ▇▇▇▇▇▇▇ Company By: /s/ ▇.▇. ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ --------------------------------------
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇.▇. ▇▇▇▇▇▇, Trustee
RESIDENCE: New York SPECIAL SITUATIONS FUND III, L.P.
Investment Amount: $1,199,945
------------
Common Shares: 1,263,100 By: /s/ ▇▇▇▇▇ Greenhouse
---------------- --------------------------------------
Warrant Shares: 315,775 Name: ▇▇▇▇▇ Greenhouse
--------------- Title: General Partner
Address for Notice:
▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
S-3
RESIDENCE: New York SPECIAL SITUATIONS FUND CAYMAN, L.P.
Investment Amount: $575,035
----------
Common Shares: 605,300
--------------
Warrant Shares: 151,325 By: /s/ ▇▇▇▇▇ Greenhouse
------------- -----------------------------------------
Name: ▇▇▇▇▇ Greenhouse
Address for Notice: Title: General Partner
▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
RESIDENCE: New York SPECIAL SITUATIONS PRIVATE EQUITY FUND, L.P.
Investment Amount: $400,045
----------
Common Shares: 421,100
--------------
Warrant Shares: 105,275 By: /s/ ▇▇▇▇▇ Greenhouse
-------------- -----------------------------------------
Name: ▇▇▇▇▇ Greenhouse
Title: General Partner
Address for Notice:
▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
RESIDENCE: New York SPECIAL SITUATIONS TECHNOLOGY FUND, L.P.
Investment Amount: $300,010
----------
Common Shares: 315,800
--------------
Warrant Shares: 78,950 By: /s/ ▇▇▇▇▇ Greenhouse
------------- -----------------------------------------
Name: ▇▇▇▇▇ Greenhouse
Title: General Partner
Address for Notice:
▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
RESIDENCE: California MICRO CAP PARTNERS, L.P.
Investment Amount: $1,000,000 By: Palo Alto Investors LLC
------------ Title: General Partner
Common Shares: 1,052,632
----------------
Warrant Shares: 263,158
---------------
By: Palo Alto Investors
Title: Manager
Address for Notice:
Mr. ▇▇▇▇ ▇▇▇▇▇▇▇
Palo Alto Investors
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ -----------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: President
S-4
RESIDENCE: British Columbia Her Majesty the Queen in Right of the
Province British Columbia
Investment Amount: $95,000.00
------------
Common Shares: 100,000 By: Wellington Management Company, LLP
---------------- Title: Investment Adviser
Warrant Shares: 25,000
---------------
Address for Notice:
Wellington Management Company, LLP
Attn: ▇▇▇▇ ▇▇ ▇▇▇▇▇
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ -------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President and Counsel
RESIDENCE: Michigan The Dow Chemical Employees' Retirement
Plan
Investment Amount: $185,250.00 By: Wellington Management Company, LLP
-------------- Title: Investment Adviser
Common Shares: 195,000
-----------------
Warrant Shares: 48,750
----------------
Address for Notice:
Wellington Management Company, LLP
Attn: ▇▇▇▇ ▇▇ ▇▇▇▇▇ By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ --------------------------------------
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President and Counsel
RESIDENCE: Michigan The Retirement Program Plan for Employees
of Union Carbide Corporation
Investment Amount: $152,000.00
-------------
Common Shares: 160,000 By: Wellington Management Company, LLP
----------------- Title: Investment Adviser
Warrant Shares: 40,000
----------------
Address for Notice:
Wellington Management Company, LLP
Attn: ▇▇▇▇ ▇▇ ▇▇▇▇▇
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President and Counsel
C-1
RESIDENCE: Singapore Government of Singapore Investment
Corporation Pte Ltd
Investment Amount: $760,000.00
-------------
Common Shares: 800,000 By: Wellington Management Company, LLP
----------------- Title: Investment Adviser
Warrant Shares: 200,000
----------------
Address for Notice:
Wellington Management Company, LLP
Attn: ▇▇▇▇ ▇▇ ▇▇▇▇▇
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ --------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President and Counsel
RESIDENCE: Maryland ▇▇▇▇▇▇ ▇▇▇▇▇▇ Medical Institute
Investment Amount: $209,000.00 By: Wellington Management Company, LLP
------------- Title: Investment Adviser
Common Shares: 220,000
-----------------
Warrant Shares: 55,000
----------------
Address for Notice:
Wellington Management Company, LLP
Attn: ▇▇▇▇ ▇▇ ▇▇▇▇▇ By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ --------------------------------------
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President and Counsel
RESIDENCE: New York New York State Nurses Association Pension
Plan
Investment Amount: $142,500.00 By: Wellington Management Company, LLP
------------- Title: Investment Adviser
Common Shares: 150,000
-----------------
Warrant Shares: 37,500
----------------
Address for Notice:
Wellington Management Company, LLP
Attn: ▇▇▇▇ ▇▇ ▇▇▇▇▇ By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ --------------------------------------
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President and Counsel
C-2
RESIDENCE: Ohio Ohio Carpenters' Pension Fund
Investment Amount: $95,000.00 By: Wellington Management Company, LLP
------------ Title: Investment Adviser
Common Shares: 100,000
----------------
Warrant Shares: 25,000
---------------
Address for Notice:
Wellington Management Company, LLP
Attn: ▇▇▇▇ ▇▇ ▇▇▇▇▇ By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ----------------------------------------
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President and Counsel
RESIDENCE: Ohio Laborers' District Council and Contractors'
of Ohio Pension Fund
Investment Amount: $61,750.00
------------
Common Shares: 65,000 By: Wellington Management Company, LLP
---------------- Title: Investment Adviser
Warrant Shares: 16,250
---------------
Address for Notice:
Wellington Management Company, LLP
Attn: ▇▇▇▇ ▇▇ ▇▇▇▇▇
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ---------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President and Counsel
RESIDENCE: Oregon Oregon Investment Council
Investment Amount: $541,500.00 By: Wellington Management Company, LLP
------------- Title: Investment Adviser
Common Shares: 570,000
-----------------
Warrant Shares: 142,500
----------------
Address for Notice:
Wellington Management Company, LLP
Attn: ▇▇▇▇ ▇▇ ▇▇▇▇▇ By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ----------------------------------------
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President and Counsel
C-3
RESIDENCE: New Jersey The ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ Foundation
Investment Amount: $218,500.00 By: Wellington Management Company, LLP
------------- Title: Investment Adviser
Common Shares: 230,000
-----------------
Warrant Shares: 57,500
----------------
Address for Notice:
Wellington Management Company, LLP
Attn: ▇▇▇▇ ▇▇ ▇▇▇▇▇ By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ --------------------------------------
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President and Counsel
RESIDENCE: Massachusetts WTC-CIF Emerging Companies Portfolio
Investment Amount: $228,000.00 By: Wellington Management Company, LLP
------------- Title: Investment Adviser
Common Shares: 240,000
-----------------
Warrant Shares: 60,000
----------------
Address for Notice:
Wellington Management Company, LLP
Attn: ▇▇▇▇ ▇▇ ▇▇▇▇▇ By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ --------------------------------------
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President and Counsel
RESIDENCE: Massachusetts WTC-CTF Emerging Companies Portfolio
Investment Amount: $304,000.00 By: Wellington Management Company, LLP
------------ Title: Investment Adviser
Common Shares: 320,000
----------------
Warrant Shares: 80,000
---------------
Address for Notice:
Wellington Management Company, LLP
Attn: ▇▇▇▇ ▇▇ ▇▇▇▇▇ By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ --------------------------------------
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President and Counsel
C-4
RESIDENCE: Australia Australian Retirement Fund
Investment Amount: $47,500.00 By: Wellington Management Company, LLP
------------ Title: Investment Adviser
Common Shares: 50,000
----------------
Warrant Shares: 12,500
---------------
Address for Notice:
Wellington Management Company, LLP
Attn: ▇▇▇▇ ▇▇ ▇▇▇▇▇ By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ --------------------------------------
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President and Counsel
RESIDENCE: Alberta, Canada TELUS Corporation
Investment Amount: $6,650.00 By: Wellington Management Company, LLP
------------ Title: Investment Adviser
Common Shares: 7,000
----------------
Warrant Shares: 1,750
---------------
Address for Notice:
Wellington Management Company, LLP
Attn: ▇▇▇▇ ▇▇ ▇▇▇▇▇ By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ --------------------------------------
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President and Counsel
RESIDENCE: Australia JB Were Global Small Companies Fund
Investment Amount: $85,500.00 By: Wellington Management Company, LLP
------------ Title: Investment Adviser
Common Shares: 90,000
----------------
Warrant Shares: 22,500
---------------
Address for Notice:
Wellington Management Company, LLP
Attn: ▇▇▇▇ ▇▇ ▇▇▇▇▇ By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ --------------------------------------
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President and Counsel
▇-▇
▇▇▇▇▇▇▇▇▇: ▇▇▇ ▇▇▇▇▇▇▇ ▇▇ Funds Global Small Companies Trust
Investment Amount: $23,750.00 By: Wellington Management Company, LLP
------------ Title: Investment Adviser
Common Shares: 25,000
----------------
Warrant Shares: 6,250
---------------
Address for Notice:
Wellington Management Company, LLP
Attn: ▇▇▇▇ ▇▇ ▇▇▇▇▇ By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ -------------------------
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President and Counsel
RESIDENCE: Australia Retail Employees' Superannuation Pty Ltd
Investment Amount: $23,750.00 By: Wellington Management Company, LLP
------------ Title: Investment Adviser
Common Shares: 25,000
----------------
Warrant Shares: 6,250
---------------
Address for Notice:
Wellington Management Company, LLP
Attn: ▇▇▇▇ ▇▇ ▇▇▇▇▇ By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ -------------------------
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President and Counsel
RESIDENCE: Pennsylvania SEI Institutional Investment Trust,
Small Cap Growth Fund
Investment Amount: $218,500.00
------------
Common Shares: 230,000 By: Wellington Management Company, LLP
---------------- Title: Investment Adviser
Warrant Shares: 57,500
---------------
Address for Notice:
Wellington Management Company, LLP
Attn: ▇▇▇▇ ▇▇ ▇▇▇▇▇
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ -------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President and Counsel
C-6
RESIDENCE: Pennsylvania SEI Institutional Managed Trust,
Small Cap Growth Fund
Investment Amount: $308,750.00
------------
Common Shares: 325,000 By: Wellington Management Company, LLP
---------------- Title: Investment Adviser
Warrant Shares: 81,250
---------------
Address for Notice:
Wellington Management Company, LLP
Attn: ▇▇▇▇ ▇▇ ▇▇▇▇▇
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ -------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President and Counsel
RESIDENCE: Alberta, Canada TELUS Foreign Equity Active Pool
Investment Amount: $14,250.00 By: Wellington Management Company, LLP
------------ Title: Investment Adviser
Common Shares: 15,000
----------------
Warrant Shares: 3,750
---------------
Address for Notice:
Wellington Management Company, LLP
Attn: ▇▇▇▇ ▇▇ ▇▇▇▇▇ By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ -------------------------
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President and Counsel
RESIDENCE: Australia Telstra Super Pty Ltd
Investment Amount: $33,250.00 By: Wellington Management Company, LLP
------------ Title: Investment Adviser
Common Shares: 35,000
----------------
Warrant Shares: 8,750
---------------
Address for Notice:
Wellington Management Company, LLP
Attn: ▇▇▇▇ ▇▇ ▇▇▇▇▇ By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ -------------------------
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President and Counsel
▇-▇
▇▇▇▇▇▇▇▇▇: ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇ Vantagepoint Aggressive Opportunities Fund
Investment Amount: $304,000.00 By: Wellington Management Company, LLP
------------ Title: Investment Adviser
Common Shares: 320,000
----------------
Warrant Shares: 80,000
---------------
Address for Notice:
Wellington Management Company, LLP
Attn: ▇▇▇▇ ▇▇ ▇▇▇▇▇ By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ -------------------------
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President and Counsel
RESIDENCE: Ireland WMP (Dublin) -- Global Smaller Companies
Equity
Investment Amount: $8,550.00
------------
Common Shares: 9,000 By: Wellington Management Company, LLP
---------------- Title: Investment Adviser
Warrant Shares: 2,250
---------------
Address for Notice:
Wellington Management Company, LLP
Attn: ▇▇▇▇ ▇▇ ▇▇▇▇▇
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ -------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President and Counsel
C-8
