REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (the "Agreement") is made and
entered into as of August 2, 2001 by and between UNIROYAL TECHNOLOGY
CORPORATION, a Delaware corporation (the "Company"), and EMCORE CORPORATION, a
New Jersey corporation, (the "Purchaser") pursuant to the Membership Interest
Purchase Agreement, dated as of August 2, 2001 ("the Purchase Agreement"),
between the Company and the Purchaser. In order to induce the Purchaser to enter
into the Purchase Agreement, the Company has agreed to provide the registration
rights set forth in this Agreement. The execution of this Agreement is a
condition to the closing under the Purchase Agreement.
The Company agrees as follows:
1. Definitions. Capitalized terms used herein without definition shall
have their respective meanings set forth in the Purchase Agreement.
As used in this Agreement, the following terms shall have the following
meanings:
Affiliate: "Affiliate" means, with respect to any specified person,
(i) any other person directly or indirectly controlling or controlled by, or
under direct or indirect common control with, such specified person or (ii) any
officer or director of such other person. For purposes of this definition, the
term "control" (including the terms "controlled by" and "under common control
with") of a person means the possession, direct or indirect, of the power
(whether or not exercised) to direct or cause the direction of the management
and policies of a person, whether through the ownership of voting securities, by
contract, or otherwise.
Business Day: Each Monday, Tuesday, Wednesday, Thursday and Friday
that is not a day on which banking institutions in the City of New York are
authorized or obligated by law or executive order to close.
Common Stock: The shares of common stock, $0.01 par value per share,
of the Company and any other shares of common stock as may constitute "Common
Stock", in each case that is issued under either the Purchase Agreement or the
Credit Agreement, and any equity security issued or issuable with respect
thereto upon any stock dividend, split, merger, consolidation or similar event.
Credit Agreement: The Credit Agreement, dated as of August 2, 2001,
between the Company and the Purchaser.
Damages Accrual Period: See Section 2(a)(v) hereof.
Damages Payment Date: The first day of each month.
Deferral Period: See Section 2(a)(iv) hereof.
Demand Registration: See Section 2(b)(i) hereof.
Demand Request: See Section 2(b)(i) hereof.
Effectiveness Period: The period commencing with the date hereof and
ending on the earlier of (a) August 2, 2006 plus such number of days as is
contained in all Damages Accrual Periods hereunder, or (b) the date that all
Registrable Securities have ceased to be Registrable Securities.
Event: See Section 2(a)(v) hereof.
Event Date: See Section 2(a)(v) hereof.
Exchange Act: The Securities Exchange Act of 1934, as amended, and the
rules and regulations of the SEC promulgated thereunder.
Filing Date: See Section 2(a)(i) hereof.
Holder: A beneficial holder from time to time of the Registrable
Securities.
Indemnified Party: See Section 5(c) hereof.
Indemnifying Party: See Section 5(c) hereof.
Prospectus: The prospectus included in the Registration Statement
(including, without limitation, a prospectus that discloses information
previously omitted from a prospectus filed as part of an effective registration
statement in reliance upon Rule 430A promulgated under the Securities Act), as
amended or supplemented by any amendment or prospectus supplement, including
post-effective amendments, and all material incorporated by reference or deemed
to be incorporated by reference in such Prospectus.
Purchase Agreement: See the first paragraph of this Agreement.
Record Holder: the registered holder of shares of Common Stock on the
record date.
Registrable Securities: The Common Stock of the Company issued
pursuant to the Purchase Agreement or the Credit Agreement (including pursuant
to Sections 1.05(b) and 10.01 thereof) and any equity security issued or
issuable with respect thereto upon any stock dividend, split, merger,
consolidation or similar event until, in the case of any such equity security,
(i) it is effectively registered under the Securities Act and disposed of in
accordance with the Registration Statement covering it, (ii) it is saleable by
the holder thereof pursuant to Rule 144(k) or (iii) it is sold to the public
pursuant to Rule 144, and, as a result of the event or circumstance described in
any of the foregoing clauses (i) through (iii), the legends with respect to
transfer restrictions required under the Purchase Agreement are removed or
removable.
Registration Statement: A registration statement of the Company which
covers the Registrable Securities pursuant to the provisions of this Agreement,
including the Prospectus, amendments and supplements to such registration
statement, including post-effective amendments, all exhibits, and all material
incorporated by reference or deemed to be incorporated by reference in such
registration statement.
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Rule 144: Rule 144 under the Securities Act, as such Rule may be
amended from time to time, or any similar rule or regulation hereafter adopted
by the SEC.
Rule 144A: Rule 144A under the Securities Act, as such Rule may be
amended from time to time, or any similar rule or regulation hereafter adopted
by the SEC.
Rule 144(k): Rule 144(k) under the Securities Act, as such Rule may be
amended from time to time, or any similar rule or regulation hereafter adopted
by the SEC.
SEC: The Securities and Exchange Commission.
Securities Act: The Securities Act of 1933, as amended, and the rules
and regulations promulgated by the SEC thereunder.
Shelf Registration: See Section 2(a)(i) hereof.
Underwriter: A securities dealer who purchases any Registrable
Securities as principal and not as part of such dealer's market-making
activities.
2. Registration Rights.
(a) Shelf Registration.
(i) The Company shall prepare and file with the SEC, as soon as
practicable but in any event on or prior to the date sixty (60) days following
the date hereof a Registration Statement registering the resale of the
Registrable Securities from time to time by the Holders of all the Registrable
Securities (other than Registrable Securities issuable pursuant to the Credit
Agreement), and shall prepare and file with the SEC, as soon as practicable but
in any event on or prior to the date sixty (60) days following the date the
Purchaser is issued any Registrable Securities pursuant to the Credit Agreement
(including Sections 1.05(b) and 10.01 thereof), an amendment to the
aforementioned Registration Statement or a subsequent Registration Statement,
for an offering to be made on a continuous basis pursuant to Rule 415 under the
Securities Act registering the resale of such Registrable Securities from time
to time by the Holders thereof (all such registration statements and amendments,
collectively, the "Shelf Registration Statement" and such registrations, the
"Shelf Registration"). The Shelf Registration shall be on Form S-1 or S-3 (as
appropriate) or another appropriate form permitting registration of the resale
of the Common Stock. The Company shall use its reasonable best efforts to cause
the Shelf Registration to be declared effective under the Securities Act as soon
as practicable and to keep the Shelf Registration continuously effective under
the Securities Act until the expiration of the Effectiveness Period. The date on
which the Shelf Registration Statement (or any post-effective amendment thereto
required by this clause (i)) is required to be filed is referred to herein as
the "Filing Date" with respect to such Shelf Registration Statement or
amendment.
(ii) If the Shelf Registration ceases to be effective for any
reason as a result of the issuance of a stop order by the SEC at any time during
the Effective Period, the Company shall use its reasonable best efforts to
obtain the prompt withdrawal of any order suspending the effectiveness thereof,
and in any event shall within thirty (30) days of such
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cessation of effectiveness amend the Shelf Registration in a manner reasonably
expected to obtain the withdrawal of the order suspending the effectiveness
thereof.
(iii) The Company shall supplement and amend the Shelf
Registration if required by the rules, regulations or instructions applicable to
the registration form used by the Company for such Shelf Registration, if
required by the Securities Act or if reasonably requested by the Holders of the
Registrable Securities covered by such Registration Statement.
(iv) In the event (A) of the happening of any event of the kind
described in Section 3(b)(ii), 3(b)(iii), 3(b)(iv), 3(b)(v) or 3(b)(vi) hereof
or (B) that, in the judgment of the Company, makes it advisable to suspend use
of the Prospectus for a discrete period of time due to pending material
corporate developments or similar materials that have not yet been publicly
disclosed and as to which the Company in good faith believes public disclosure
is reasonably likely to be detrimental to the Company, the Company shall deliver
a certificate in writing, signed by an authorized executive officer of the
Company, to the Holders to the effect of the foregoing and, upon such notice,
the Company may suspend use of the Registration Statement until a supplemented
or amended Prospectus is filed with the SEC, or until the Holders are advised in
writing by the Company that the Prospectus may be used, and the Holders have
received copies of any additional or supplemental filings that are incorporated
or deemed incorporated by reference in such Prospectus. The Company will use its
reasonable best efforts to ensure that the use of the Prospectus may be resumed,
and the use of the Registration Statement will commence, as soon as practicable
and, in the case of a pending development or event referred to in this Section,
as soon as the earlier of (x) public disclosure of such pending material
corporate development or similar material event or (y) the date upon which, in
the good faith judgment of the Company, public disclosure of such material
corporate development or similar material event would not be reasonably likely
to be detrimental to the Company. Notwithstanding the foregoing, the Company
shall not under any circumstances be entitled to exercise its right under this
Section 2(a)(iv) to suspend the use of the Registration Statement except as
follows: The Company may suspend the use of the Registration Statement in
accordance with this Section 2(a)(iv) for a period (such period being "Deferral
Period") not to exceed (i) an aggregate of 45 days (in no more than two separate
periods) in any three-month period and (ii) an aggregate of 90 days (in no more
than four separate periods) in any 12-month period, and the period in which the
use of the Registration Statement is suspended shall not exceed fifteen (15)
days unless the Company shall deliver to the Holders a second notice to the
effect set forth above, which shall have the effect of extending the period
during which the use of the Registration Statement is deferred by up to an
additional fifteen (15) days, or such shorter period of time as is specified in
such second notice.
(v) The parties hereto agree that the Holders of Registrable
Securities will suffer damages, and that it would not be feasible to ascertain
the extent of such damages with precision, if (A) the Shelf Registration has not
been filed on or prior to the Filing Date, (B) the Shelf Registration is not
declared effective within 90 days after the Filing Date, (C) prior to the end of
the Effectiveness Period, the SEC shall have issued a stop order suspending the
effectiveness of the Shelf Registration or proceedings have been initiated with
respect of the Shelf Registration under Section 8(d) or 8(e) of the Securities
Act or (D) the aggregate number of days in any Deferral Period exceeds the
number permitted pursuant to Section 2(a)(iv) hereof (each of the events of a
type described in any of the foregoing clauses (A) through (D) are individually
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referred to herein as an "Event," and the Filing Date in the case of clause (A),
the 90th day after the Filing Date, in the case of clause (B), the date on which
the effectiveness of the Shelf Registration has been suspended or proceedings
with respect to the Shelf Registration under Section 8(d) or 8(e) of the
Securities Act have been commenced in the case of clause (C), and the date on
which the number of days in any Deferral Period exceeds the number permitted by
Section 2(a)(iv) hereof in the case of clause (D), being referred to herein as
an "Event Date"). Events shall be deemed to continue until the date of the
termination of such Event, which shall be the following dates with respect to
the respective types of Events: the date the Registration Statement is filed in
the case of an Event of the type described in clause (A), the date the Shelf
Registration becomes effective, in the case of an Event described in clause (B),
the date that all stop orders suspending effectiveness of the Shelf Registration
have been removed and the proceedings initiated with respect to the Shelf
Registration under Section 8(d) or 8(e) of the Securities Act have terminated,
as the case may be, in the case of Events of the types described in clause (C),
and termination of the Deferral Period which caused the aggregate number of days
in any Deferral Period to exceed the number permitted by Section 2(a)(iv) to be
exceeded in the case of Events of the type described in clause (D).
Accordingly, upon the occurrence of any Event and until such time as
there are no Events which have occurred and are continuing (a "Damages Accrual
Period"), commencing on the Event Date on which such Damages Accrual Period
began, the Company agrees to pay, as liquidated damages, and not as a penalty,
an additional amount (the "Specified Damages"): (A) to each holder of Common
Stock, accruing at a rate equal to one-half of one percent per annum (50 basis
points) calculated on an amount equal to the product of (x) $7.63 times (y) the
number of shares of Common Stock held by such holder; and (B) if the Damages
Accrual Period continues for a period in excess of thirty (30) days from the
Event Date, from and after the end of such (30) day period until such time as
there are no Events which have occurred and are continuing, to each holder of
Common Stock, accruing at a rate equal to three quarters of one percent per
annum (75 basis points) calculated on an amount equal to the product of (x)
$7.63 times (y) the number of shares of Common Stock held by such holder.
Notwithstanding the foregoing, no Specified Damages shall accrue under clause
(A) of the preceding sentence during any period for which Specified Damages
accrue under clause (B) of the preceding sentence or as to any Registrable
Securities from and after the earlier of (x) the date such securities are no
longer Registrable Securities and (y) expiration of the Effectiveness Period.
The rate of accrual of the Specified Damages with respect to any period shall
not exceed the rate provided for in this paragraph notwithstanding the
occurrence of multiple concurrent Events.
The Specified Damages due shall be paid by the Company to the Record
Holders on each Damages Payment Date by wire transfer of immediately available
funds to the accounts specified by them or by mailing checks to their registered
addresses as they appear in the register of the Company for the Registrable
Securities or Common Stock, if no such accounts have been specified on or before
the Damages Payment Date.
(b) Demand Registration.
(i) A Holder (or Purchaser, if Purchaser is a Holders) of the
Registrable Securities may make a written request and additional requests once
every six months
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as long as the Note between the Purchaser and the Company dated August 2, 2001
(the "Note") remains outstanding and not repaid in full, and an additional
request when the note is paid in full (each a "Demand Request") for registration
under the Securities Act of all or part of its Registrable Securities in a "firm
commitment" underwritten offering (a "Demand Registration"); provided that the
Company shall not be obligated (A) to effect a Demand Registration for the
registration of Registrable Shares, the market value of which is less than $7.5
million (as determined by the average of the closing price for the Registrable
Securities for the 20 trading dates immediately prior to the delivery of notice
to the Company) or (B) to effect a registration of any Registrable Securities
within 180 days after any underwritten offering of equity securities by the
Company. Such request will specify the number of shares of Registrable
Securities proposed to be sold. Subject to Section 2(b)(iii), the Company shall
file a registration statement with respect to the Demand Registration as soon as
practicable thereafter and in any event within 90 days after receiving a Demand
Request (such 90th day being referred to herein as the "Required Filing Date")
and shall use its best efforts to cause the same to be declared effective by the
Commission as promptly as practicable after such filing.
(ii) The Holders (or Purchaser, if Purchaser is a Holder) of the
Registrable Securities to be registered pursuant to the Demand Registration
shall select the managing Underwriters and any additional investment bankers and
managers to be used in connection with the offering; provided that such managing
Underwriters and additional investment bankers must be reasonably satisfactory
to the Company.
(iii) The Company may, in its sole discretion, decline to grant a
Demand Request on one occasion. In such event, the Demand Request shall be
deemed not to have been made for the purpose of Section 2(b)(i) hereof,
provided, however, that the holders may not make another request within 120 days
following the denial by the Company to grant such Demand Request.
(iv) Notwithstanding anything contained herein, if the managing
underwriter of an offering described in Section 2(b)(i) above delivers a written
opinion to the Company that marketing considerations require a limitation on the
number of shares offered pursuant to any registration statement, then the
Company shall include in such registration (A) first, the securities being
offered for the account of the Holders of Registrable Securities, (B) second,
the number of equity securities that the Company wishes to include, and (C)
third, the number of equity securities requested by holders of equity securities
with registration rights that in the opinion of such underwriter, can be sold,
pro rata among such holders on the basis of the amount of equity securities
requested to be included by each such holders.
(v) A registration pursuant to this Section will not be deemed to
have been "effected" if it is withdrawn at the request of the holders of the
majority of the Registrable Securities to be included therein.
(c) Piggyback Registration.
(i) If the Company proposes to file a registration statement
under the Securities Act with respect to an underwritten offering of equity
securities (A) for the Company's own account or (B) for the account of any of
the holders of its equity securities, then the
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Company shall give written notice of such proposed filing to each Holder as soon
as practicable (but in no event less than 20 business days before the
anticipated filing date), and such notice shall offer such Holder the
opportunity to register such number of shares of Registrable Securities as such
Holder may request on the same terms and conditions as the Company's or such
holder's equity securities (a "Piggyback Registration"). Each Holder desires to
have its Registrable Securities included in such registration statement, shall
so advise the Company in writing (stating the number of shares of Common Stock
desired to be registered) within 15 business days after the date of such notice
from the Company. Any Holder shall have the right to withdraw such request for
inclusion of such Holder's Registrable Securities in any registration statement
pursuant to this section by giving written notice to the Company of such
withdrawal prior to the effective date of the Registration Statement. Subject to
Section 2(c)(ii) below, the Company shall include in such registration statement
all such Registrable Securities requested to be included therein; provided,
however, that the Company may at any time withdraw or cease proceeding with any
such registration if it shall at the same time withdraw or cease proceeding with
the registration of all other securities originally proposed to be registered.
(ii) Notwithstanding anything contained herein, if the managing
Underwriter of an offering described in Section 2(c)(i) above delivers a written
opinion to the Company that marketing considerations require a limitation on the
number of shares offered pursuant to any registration statement, then the
Company shall include in such registration (A) first, the securities being
offered for the account of the Company, and (B) second, the number of
Registrable Securities requested to be included that, in the opinion of such
Underwriter, can be sold, by the Holder.
3. Registration Procedures. In connection with the Company's
registration obligations under Section 2 hereof, the Company shall as
expeditiously as possible:
(a) Prepare and file with the Commission a registration statement on
any form for which the Company then qualifies and which counsel for the Company
shall deem appropriate and available for the sale of the Registrable Securities
to be registered thereunder in accordance with the intended method of
distribution thereof (including in a Rule 415 offering), and use its reasonable
efforts to cause such filed registration statement to become effective as
promptly as practicable, and thereafter prepare and file with the Commission
such amendments and supplements to such registration statement and the
prospectus used in connection therewith as may be necessary to keep such
registration statement effective (i) for a period of not less than 120 days in
the case of any registration other than the Shelf Registration plus the period
of any delay or suspension of use of a prospectus pursuant to Section 2(a)(iv)
hereof, and (ii) in the case of the Shelf Registration through the Effectiveness
Period plus the period of any delay or suspension of use of a prospectus
pursuant to Section 2(a)(iv) hereof.
(b) Notify the Holders, promptly, and confirm such notice in writing,
(i) when a Prospectus, any Prospectus supplement, a Registration Statement or a
post-effective amendment to a Registration Statement has been filed with the
SEC, and, with respect to the Registration Statement or any post-effective
amendment, when the same has become effective, (ii) of any request by the SEC or
any other federal or state governmental authority for amendments or supplements
to the Registration Statement or related Prospectus or for additional
information, (iii)
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of the issuance by the SEC or any other federal or state governmental authority
of any stop order suspending the effectiveness of the Registration Statement or
the initiation or threatening of any proceedings for that purpose, (iv) of the
receipt by the Company of any notification with respect to the suspension of the
qualification or exemption from qualification of any of the Registrable
Securities for sale in any jurisdiction or the initiation or threatening of any
proceeding for such purpose, (v) of the existence of any fact or happening of
any event which makes any statement of a material fact in the Registration
Statement or related Prospectus or any document incorporated or deemed to be
incorporated therein by reference untrue or which would require the making of
any changes in the Registration Statement or Prospectus in order that, in the
case of the Registration Statement, it will not contain any untrue statement of
a material fact or omit to state any material fact required to be stated therein
or necessary to make the statements therein not misleading, and that in the case
of the Prospectus, it will not contain any untrue statement of a material fact
or omit to state any 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 (vi) of the Company's good faith determination that a
post-effective amendment to the Registration Statement would be appropriate.
(c) Use its reasonable best efforts to obtain the withdrawal of any
order suspending the effectiveness of the Registration Statement, or the lifting
of any suspension of the qualification (or exemption from qualification) of any
of the Registrable Securities for sale in any jurisdiction, at the earliest
possible moment.
(d) Prior to filing a Registration Statement or any amendment or
supplement thereto, furnish to each selling Holder, copies thereof, and
thereafter furnish to each such Holder such number of copies of such
registration statement, amendment and supplement thereto (in each case including
all exhibits thereto and documents incorporated by reference therein) and the
prospectus included in such registration statement (including each preliminary
prospectus) as each such Holder may reasonably request from time to time in
order to facilitate the sale of the Registrable Securities.
(e) Prior to any public offering of Registrable Securities, to
register or qualify (or obtain an exemption from such registration or
qualification of) such Registrable Securities for offer and sale under the
securities or Blue Sky laws of such jurisdictions within the United States as
any Holder reasonably requests in writing, keep each such registration or
qualification (or exemption therefrom) effective during the period the
Registration Statement is required to be kept effective and do any and all other
acts or things necessary or advisable to enable the disposition in such
jurisdictions of the Registrable Securities covered by the Registration
Statement; provided, that the Company shall not be required to (A) qualify
generally to do business in any jurisdiction where it is not then so qualified
or (B) take any action that would subject it to general service of process in
suits or to taxation in any such jurisdiction where it is not then so subject.
(f) Throughout the Effectiveness Period (other than during a Deferral
Period), immediately upon the existence of any fact or the occurrence of any
event as a result of which the Registration Statement shall contain any untrue
statement of a material fact or omit to state any material fact required to be
stated therein or necessary to make the statements therein not misleading, or a
Prospectus shall contain any untrue statements of a material fact or omit to
state
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any material fact or omit to state any material fact required to be stated
therein or necessary to make each statement therein not misleading, promptly
prepare and file a post-effective amendment to the Registration Statement or a
supplement to the related Prospectus or any document incorporated therein by
reference or file any other required document (such as a current Report on Form
8-K) that would be incorporated by reference into the Registration Statement so
that the Registration Statement shall not contain any untrue statement of a
material fact or omit to state any material fact required to be stated therein
or necessary to make the statements therein not misleading, and so that the
Prospectus will not contain any untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading, as thereafter delivered to the Holders, and, in the case
of a post-effective amendment to the Registration Statement, use its reasonable
best efforts to cause it to become effective as soon as practicable.
(g) Comply with all applicable rules and regulations of the SEC and
make generally available to the holders of its securities earnings statements
(which need not be audited) satisfying the provisions of Section 11(a) of the
Securities Act and Rule 158 thereunder (or any similar rule promulgated under
the Securities Act) no later than 45 days after the end of any 12-month period
(or 90 days after the end of any 12-month period if such period is a fiscal
year) (i) commencing at the end of any fiscal quarter in which Registrable
Securities are sold to Underwriters in a firm commitment or best efforts
underwritten offering, and (ii) if not sold to Underwriters in such an offering,
commencing on the first day of the first fiscal quarter of the Company
commencing after the effective date of the Registration Statement, which
statements shall cover said 12-month period.
(h) Cooperate with the Holders of Registrable Securities to facilitate
the timely preparation and delivery of certificates representing Common Stock to
be issued and not bearing any restrictive legends; and enable such Registrable
Securities to be in such denominations and registered in such names as the
Holders may request.
(i) Cause the Common Stock covered by the Registration Statement to be
listed and registered on each national securities exchange or quoted on the
automated quotation system of a national securities association on which the
Company's "common stock" is then listed, no later than the effective date of the
Registration Statement and, in connection therewith, to the extent applicable,
to make such filings under the Exchange Act (e.g., the filing of a Registration
Statement on Form 8-A) and to have such filings declared effective thereunder.
(j) Cooperate and assist in any filings required to be made with the
National Association of Securities Dealers, Inc.
(k) If reasonably requested by the managing underwriter or
underwriters or a Holder of Registrable Securities being sold in connection with
an underwritten offering, promptly incorporate in a prospectus supplement or
post-effective amendment such information as the managing underwriters and the
Holders of the Registrable Securities being sold in such underwritten offering
agree should be included therein relating to the sale of the Registrable
Securities, including, without limitation, information with respect to the
aggregate number of shares of Registrable Securities being sold to such
underwriters, the purchase price being paid
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therefor by such underwriters and with respect to any other terms of the
underwritten offering of the Registrable Securities to be sold in such offering;
and promptly make all required filings of such prospectus supplement or
post-effective amendment.
(l) Cooperate with the selling Holders of Registrable Securities and
the managing underwriters, if any, to facilitate the timely preparation and
delivery of certificates representing Registrable Securities to be sold and not
bearing any restrictive legends; and enable such Registrable Securities to be in
such denominations and registered in such names as the managing underwriters may
request at least two Business Days prior to any sale of Registrable Securities
to the underwriters.
(m) In the case of a Demand Registration under Section 2(b):
(i) enter into such customary agreements (including underwriting
agreements in customary form) and take all such other actions as the holders of
a majority of the Registrable Securities being sold or the underwriters, if any,
reasonably request in order to expedite or facilitate the disposition of such
Registrable Securities (including, without limitation, effecting a stock split
or a combination of shares);
(ii) at the request of any seller of Registrable Securities, use
its best efforts to furnish on the date that Restricted Securities are delivered
to the underwriters for sale pursuant to such registration an opinion dated such
date of counsel representing the Company for the purposes of such registration,
addressed to the underwriters and to such seller, stating that such registration
statement has become effective under the Securities Act and that (A) to the best
knowledge of such counsel, no stop order suspending the effectiveness thereof
has been issued and no proceedings for that purpose have been instituted or are
pending or contemplated under the Securities Act, (B) the registration
statement, the related prospectus and each amendment or supplement thereof
comply as to form in all material respects with the requirements of the
Securities Act (except that such counsel need not express any opinion as to
financial statements contained therein) and (iii) to such other effects as
reasonably may be requested by counsel for the underwriters or by such Holder or
its counsel;
(iii) make available for inspection by any seller of Registrable
Securities, any underwriter participating in any disposition pursuant to such
registration statement, and any attorney, accountant or other agent retained by
any such seller or underwriter, all financial and other records, pertinent
corporate documents and properties of the Company, and cause the Company's
officers, directors, employees and independent accountants to supply all
information reasonably requested by any such seller, underwriter, attorney,
accountant or agent in connection with such registration statement; and
(iv) obtain a cold comfort letter from the Company's independent
public accountants in customary form and covering such matters of the type
customarily covered by cold comfort letters as the holders of a majority of the
Registrable Securities being sold reasonably request (provided that such
Registrable Securities constitute at least 10% of the securities covered by such
registration statement).
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(n) In the case of any nonunderwritten offering: (1) obtain opinions
of counsel to the Company at the time of effectiveness of such Registration
Statement covering such offering and updates thereof of customary frequency,
addressed to each Holder of any Registrable Securities participating in such
offering and covering matters that are no more extensive in scope than would be
customarily covered in opinions obtained in secondary underwritten offerings by
issuers with similar market capitalization and reporting and financial
histories; (2) obtain "cold comfort" letters from the independent certified
public accountants of the Company at the time of effectiveness of such
Registration Statement and, upon the request of the Holders of a majority of the
Registrable Securities (or Purchaser, if Purchaser is a Holder) covered by such
registration statement, updates thereof of customary frequency, in each case
addressed to each Holder of Registrable Securities participating in such
offering and covering matters that are no more extensive in scope than would be
customarily covered in "cold comfort" letters and updates obtained in secondary
underwritten offerings by issuers with similar market capitalization and
reporting and financial histories, provided that any letter or update described
in this clause (2) shall only be required to the extent such letters are being
issued in respect of nonunderwritten secondary offerings under then prevailing
accounting practices; and (3) deliver a certificate of a senior executive
officer of the Company at the time of effectiveness of such Registration
Statement and, upon the request of the Holders of a majority (or Purchaser, if
Purchaser is a Holder) of the Registrable Securities covered by such
Registration Statement, updates thereof of customary frequency, such
certificates to cover matters no more extensive in scope than those matters
customarily covered in officer's certificates delivered in connection with
underwritten offerings by issuers with similar market capitalization and
reporting and financial histories. Notwithstanding anything to the contrary in
this Agreement, the Purchaser or Purchasers requesting any of the items in
clause (1) or (2) hereof shall pay all costs, fees and expenses related thereto.
4. Registration Expenses. All fees and expenses incident to the
Company's performance of or compliance with this Agreement shall be borne by the
Company whether or not the Registration Statement becomes effective, provided,
however, that with respect to any Registration Statement filed pursuant to
Section 2(b) hereof all reasonable fees and out-of-pocket expenses other than
fees and expenses described in clause (vii) below shall be borne by the selling
Holders in proportion to the number of shares of Registrable Securities to be
registered by each. Such fees and expenses shall include, without limitation,
(i) all registration and filing fees (including, without limitation, fees and
expenses (x) with respect to filings required to be made with the SEC or the
National Association of Securities Dealers, Inc. and (y) relating to compliance
with federal securities or Blue Sky laws (including, without limitation, fees
and disbursements of counsel in connection with Blue Sky qualifications of the
Registrable Securities under laws of such jurisdictions as may be required under
Section 3(e) hereof or as the Holder of the Registrable Securities being sold
may designate), (ii) all expenses incurred in connection with the preparation,
word processing, printing and distribution of the Registration Statement, any
Prospectus, any amendments or supplements thereto, and other documents relating
to the performance of and compliance with this Agreement, (iii) the reasonable
fees and disbursements of the registrar and transfer agent for the Common Stock
(iv) messenger, telephone and delivery expenses relating to the performance of
the Company's obligations hereunder, (v) reasonable fees and disbursements of
counsel for the Company in connection with the Registration Statement, (vi) fees
and disbursements of all independent certified public accountants related to the
preparation of
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the Registration Statement, any Prospectus, or any amounts or supplements
thereto and (vii) Securities Act liability insurance obtained by the Company in
its sole discretion. In addition, in all circumstances the Company shall pay its
internal expenses (including, without limitation, all salaries and expenses of
its officers and employees performing legal or accounting duties), the expense
of any annual audit, the fees and expenses incurred in connection with the
listing of the securities to be registered on any securities exchange on which
similar securities issued by the Company are then listed.
5. Indemnification and Contribution.
(a) Indemnification by the Company - Registrable Securities. The
Company agrees to indemnify and hold harmless each selling Holder and each
Person, if any, who controls each selling Holder within the meaning of either
Section 15 of the Securities Act or Section 20 of the Exchange Act, and the
officers, directors, Affiliates, employees and agents of each of the foregoing,
from and against any and all losses, claims, judgments, damages and liabilities
(including reasonable fees, disbursements and other charges of counsel) arising
out of or based upon any untrue statement or alleged untrue statement of a
material fact contained in any Registration Statement (as amended or
supplemented if the Company shall have furnished any amendments or supplements
thereto) or any preliminary or final Prospectus contained therein or arising out
of or based upon any omission or alleged omission to state in any such
Registration Statement or Prospectus a material fact required to be stated
therein or necessary to make the statements therein (as to a preliminary or
final prospectus), in light of the circumstances under which they were made, not
misleading, and any failure by the Company to fulfill any undertaking in any
Registration Statement, except insofar as such losses, claims, judgments,
damages or liabilities arise out of or are based upon any such untrue statement
or omission or alleged untrue statement or omission made in conformity with
information relating to such Holder or the plan of distribution of Registrable
Securities to be sold by such Holder, in each case furnished in writing to the
Company by such Holder expressly for use therein; provided that the foregoing
indemnity agreement with respect to any preliminary prospectus shall not inure
to the benefit of a selling Holder with respect to any loss, claim, damage or
liability relating to a purchaser if a copy of the final prospectus was
furnished to such selling Holder and was not provided to such purchaser and such
final prospectus would have cured the defect giving rise to such loss, claim,
damage or liability. The Company agrees to reimburse the Purchasers for
reasonable fees and expenses incurred investigating claims subject to
indemnification under this Section 5(a). The Company also agrees to indemnify
any Underwriters of the Registrable Securities, their officers and directors and
each person who controls such Underwriters on substantially the same basis as
that of the indemnification of the selling Holders provided in this Section
5(a).
(b) Indemnification by Selling Holders - Registrable Securities. Each
selling Holder agrees severally and not jointly to indemnify and hold harmless
the Company, and each person, if any, who controls the Company within the
meaning of either Section 15 of the Securities Act or Section 20 of the Exchange
Act, and the officers, directors, Affiliates, employees and agents of each of
the foregoing, from and against any and all losses, claims, judgments, damages
and liabilities (including reasonable fees, disbursements and other charges of
counsel) arising out of or based upon any untrue statement or alleged untrue
statement of a material fact contained in any Registration Statement (as amended
or supplemented if the
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Company shall have furnished any amendments or supplements thereto) or any
preliminary or final Prospectus contained therein, or arising out of or based
upon any omission or alleged omission to state therein 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, but only insofar
as such losses, claims, judgments, damages or liabilities arise out of or are
based upon any such untrue statement or omission or alleged untrue statement or
omission made in conformity with information relating to such Holder or the plan
of distribution of Registrable Securities to be sold by such Holder, in each
case furnished in writing to the Company by such Holder expressly for use
therein. Each Holder, by exercising its registration rights hereunder, also
agrees to indemnify and hold harmless any Underwriters of the Registrable
Securities, their officers and directors and each person who controls such
Underwriters on substantially the same basis as that to the indemnification of
the Company provided in this Section 5(b) subject to the limitations set forth
in 5(e).
(c) Conduct of Indemnification Proceedings. In case any proceeding
(including any governmental investigation) shall be instituted involving any
person in respect of which indemnity may be sought pursuant to Sections 5(a) or
(b), such person (the "Indemnified Party") shall promptly notify the person
against whom such indemnity may be sought (the "Indemnifying Party") in writing
of such proceeding; provided, that the failure to notify the Indemnifying Party
shall not relieve it from any liability that it may have to an Indemnified Party
on account of the indemnity agreement contained in Sections 5(a) or (b) above
except to the extent that the Indemnifying Party was actually prejudiced by such
failure, and in no event shall such failure relieve the Indemnifying Party from
any other liability that it may have to such Indemnified Party. If the
Indemnified Party, at its option, elects to defend any such proceeding with
counsel retained by it, the Indemnifying Party shall pay the fees and
disbursements of such counsel related to such proceeding. Upon the request of
the Indemnified Party, the Indemnifying Party shall retain counsel reasonably
satisfactory to such Indemnified Party to represent such Indemnified Party and
any others the Indemnifying Party may designate in such proceeding and shall pay
the fees and disbursements of such counsel related to such proceeding. If,
pursuant to the immediately preceding sentence, the Indemnified Party shall have
requested the Indemnifying party to retain counsel to represent such Indemnified
Party with respect to any such proceeding, any Indemnified party shall have the
right to retain its own counsel, but the fees and expenses of such counsel shall
be at the expense of such Indemnified Party unless (i) the Indemnifying Party
and the Indemnified Party shall have mutually agreed to the retention of such
counsel or (ii) the named parties to any such proceeding (including any
impleaded parties) include both the Indemnified Party and the Indemnifying Party
and representation of both parties by the same counsel would be inappropriate
due to actual or potential differing interests between them. It is understood
that the Indemnifying Party shall not, in connection with any proceeding or
related proceedings in the same jurisdiction, be liable for the fees and
expenses of more than one separate firm of attorneys (in addition to any local
counsel) at any time for all such Indemnified Parties, and that all such fees
and expenses shall be reimbursed as they are incurred. Any Indemnifying Party
against whom indemnity may be sought under this Section 5(c) shall not be liable
to indemnify any Indemnified Party if such Indemnified Party settles such claim
or action without the consent of the Indemnifying Party which shall not be
unreasonably withheld. The Indemnifying Party may not agree to any settlement of
any such claim or action, other than solely for monetary damages for which the
Indemnifying Party shall be responsible hereunder and with a full release of
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the Indemnified Party, resulting in any remedy or relief applied to or against
the Indemnified Party, without the prior written consent of the Indemnified
Party.
(d) Contribution - - Offerings. If the indemnification provided for in
Sections 5(a) or (b) is unavailable to an Indemnified Party in respect of any
losses, claims, judgments, damages or liabilities referred to herein, then each
such Indemnifying Party, in lieu of indemnifying such Indemnified Party, shall
contribute to the amount paid or payable by such Indemnified Party as a result
of such losses, claims, judgments, damages or liabilities in such proportion as
is appropriate to reflect the relative fault of the Company, the selling Holders
and the Underwriters in connection with the statements or omissions that
resulted in such losses, claims, judgments, damages or liabilities, as well as
any other relevant equitable considerations. The relative fault of the Company,
the selling Holders and the underwriters 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 such party and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
omission. If the allocation provided for above is not permitted by applicable
law, such contribution shall be based on such equitable considerations as a
court may determine to be relevant.
The Company and the selling Holders agree that it would not be just
and equitable if contribution pursuant to this Section 5(d) were determined by
pro rata allocation (even if the Underwriters were treated as one entity for
such purpose) or by any other method of allocation that does not take account of
the equitable considerations referred to in the immediately preceding paragraph.
The amount paid or payable by an Indemnified Party as a result of the losses,
claims, damages or liabilities referred to in the immediately preceding
paragraph shall be deemed to include, subject to the limitations set forth
above, any legal or other expenses reasonably incurred by such Indemnified Party
in connection with investigating or defending any such action or claim.
(e) Notwithstanding the provisions of this Section 5, no Underwriter
shall be required to contribute or indemnify any amount in excess of the amount
by which the total price at which the Securities underwritten by it and
distributed to the public were offered to the public exceeds the amount of any
damages which such Underwriter has otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged omission, and no
selling Holder shall be required to contribute or indemnify any aggregate
amounts in excess of the amount by which the net proceeds of the offering
(before deducting expenses) received by such selling Holder exceeds the amount
of any damages which such selling Holder has otherwise been required to pay by
reason of such untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Securities Act) shall be entitled to indemnification or
contribution under this Section 5 from any Person who was not guilty of such
fraudulent misrepresentation.
6. Additional Registration Rights Provisions.
(a) Participation in Registrations. No Person may participate in any
underwritten registered offering contemplated hereunder unless such Person (a)
agrees to sell its securities on the basis provided in any customary
underwriting arrangements approved by the Persons entitled hereunder to approve
such arrangements and (b) completes and executes all
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questionnaires, powers of attorney, indemnities, customary underwriting
agreements and other documents reasonably required under the terms of such
underwriting arrangements and these Registration Rights. No Person may
participate in a registered offering pursuant to the Shelf Registration unless
such Person provides information reasonably requested by the Company customarily
required to effect registration of the resale of the Common Stock.
Notwithstanding the above, with respect to a Piggyback Registration, the Holders
shall not be required to provide indemnification except to the extent provided
pursuant to this Agreement. The Holders shall only be required to give
representations and warranties that are customary for selling shareholders.
(b) Lockup Agreements. Each Holder, by exercising its registration
rights hereunder, agrees not to offer, sell, contract to sell or otherwise
dispose of any Registrable Securities, or any securities convertible into or
exchangeable or exercisable for such securities, during the 14 days prior to,
and during the 90-day period (or such lesser period as the lead or managing
underwriters may permit) beginning on, the effective date of such Registration
Statement (or the commencement of the offering to the public of such Registrable
Securities in the case of Rule 415 offerings) other than (i) the Registrable
Securities to be sold pursuant to such Registration Statement or (ii) in a
transaction not involving a public offering, provided that the purchaser (or
purchasers) of such shares agrees to be bound by such lock-up restrictions for
the remainder of the lock-up period.
(c) With a view to making available to the holders of Registrable
Securities the benefits of certain rules and regulations of the SEC which may
permit the sale of the Registrable Securities to the public without
registration, the Company agrees to use its reasonable best efforts to:
(i) make and keep current public information available, within
the meaning of Rule 144 or any similar or analogous rule promulgated under the
Securities Act, at all times;
(ii) file with the SEC, in a timely manner, all reports and other
documents required under the Securities Act and Exchange Act; and
(iii) so long as any party hereto owns any Registrable
Securities, furnish to such Person forthwith upon request a written statement as
to its compliance with the reporting requirements of said Rule 144, the
Securities Act and the Exchange Act; a copy of its most recent annual or
quarterly report; and such other reports and documents as such Person may
reasonably request in availing itself of any rule or regulation of the SEC
allowing it to sell such securities without registration.
(d) The Company will provide to any holder of a Registrable Security,
upon such persons' request, the information required by paragraph (d)(4) of Rule
144A.
7. Miscellaneous.
(a) Remedies. In the event of a breach by the Company of its
obligations under this Agreement, each Holder of Registrable Securities, in
addition to being entitled to exercise all rights granted by law, including
recovery of damages, will be entitled to specific
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performance of its rights under this Agreement. The Company agrees that monetary
damages would not be adequate compensation for any loss incurred by reason of a
breach by it of any of the provisions of this Agreement and hereby further
agrees that, in the event of any action for specific performance in respect of
such breach, it shall waive the defense that remedy of law would be adequate.
(b) No Conflicting Agreements. The Company has not, as of the date
hereof, and shall not, on or after the date of this Agreement, enter into any
agreement with respect to its securities which conflicts with the rights granted
to the Holders of Registrable Securities in this Agreement. The Company
represents and warrants that the rights granted to the Holders of Registrable
Securities hereunder do not in any way conflict with the rights granted to the
holders of the Company's securities under any other agreements.
(c) Amendments and Waivers. The provisions of this Agreement,
including the provisions of this sentence, may not be amended, modified or
supplemented, and waivers to or departures from the provisions hereof may not be
given, unless the Company has obtained the written consent of the Holders (or if
the Purchaser is a Holder, the Purchaser).
(d) Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing and shall be deemed given (i) when
made, if made by hand delivery, (ii) upon confirmation, if made by telecopier or
(iii) one business day after being deposited with a reputable next-day courier,
postage prepaid, to the parties as follows:
(x) if to the Holder of Registrable Securities, at the most
current address given by the Holder to the Company in accordance with the
provisions of Section 7(e); and
(y) if to the Company, to:
Uniroyal Technology Corporation
0 Xxxxx Xxxxxxx Xxxxx, Xxxxx 000
Xxxxxxxx, Xxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxx, Xx.
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
with a copy to:
Uniroyal Technology Corporation
0 Xxxxx Xxxxxxx Xxxxx, Xxxxx 000
Xxxxxxxx, Xxxxxxx 00000
Attention: Xxxxxx X. Xxxxxx, Esq.
Telephone: (000) 000-0000
Telecopy: (000-000-0000
or such other address as such person may have furnished to the other persons
identified in this Section 7(d) in writing in accordance herewith.
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(e) Owner of Registrable Securities. The Company will maintain, or
will cause its registrar and transfer agent to maintain, a register with respect
to the Registrable Securities in which all transfers of Registrable Securities
of which the Company has received notice will be recorded. The Company may deem
and treat the person in whose name Registrable Securities are registered in such
register of the Company as the owner thereof for all purposes, including,
without limitation, the giving of notices under this Agreement.
(f) Successors and Assigns. Any person who purchases any Registrable
Securities from the Purchaser shall be deemed, for purposes of this Agreement,
to be an assignee of the Purchaser. This Agreement shall inure to the benefit of
and be binding upon the successors and assigns of each of the parties and shall
inure to the benefit of and be binding upon each Holder of any Registrable
Securities. This Agreement may not be assigned by the Company without the prior
written consent of the Purchasers.
(g) Counterparts. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be the original and all of which taken
together shall constitute one and the same agreement.
(h) Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(i) Governing Law. This agreement shall be governed by and construed
in accordance with the laws of the state of New York, as applied to contracts
made and performed within the state of New York without regard to principles of
conflicts of laws.
(j) Severability. If any term, provision, covenant or restriction of
this Agreement is held 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 thereby, 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. It is hereby stipulated and declared to be the intention of the
parties that they would have executed the remaining terms, provisions, covenants
and restrictions without including any of such which may be hereafter declared
invalid, illegal, void or unenforceable.
(k) Entire Agreement. This Agreement is intended by the parties as a
final expression of their agreement and is intended to be a complete and
exclusive statement of the agreement and understanding of the parties hereto in
respect of the subject matter contained herein and the registration rights
granted by the Company with respect to the Registrable Securities. Except as
provided in the Purchase Agreement there are no restrictions, promises,
warranties or undertakings, other than those set forth or referred to herein,
with respect to the registration rights granted by the Company with respect to
the Registrable Securities. This Agreement supersedes all prior agreements and
understandings among the parties with respect to such registration rights.
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(l) Attorneys' Fees. In any action or proceeding brought to enforce a
provision of this Agreement, or where any provision hereof is validly asserted
as a defense, the prevailing party, as determined by the court, shall be
entitled to recover reasonable attorneys' fees in addition to any other
available remedy.
(m) Further Assurances. The Company shall use all reasonable efforts
to take, or cause to be taken, all appropriate action, do or cause to be done
all things reasonably necessary, proper or advisable under applicable law, and
execute and deliver such documents and other papers as may be required to carry
out of the provisions of this Agreement and the other documents contemplated
hereby and consummate and make effective the transactions contemplated hereby.
(n) Termination. This Agreement and the obligations of the parties
hereunder shall terminate upon the end of the Effectiveness Period, except for
any liabilities or obligations under Sections 4, 5 or 6 hereof and the
obligations to make payments of and provide for Specified Damages under Section
2(a)(v) hereof to the extent such damages accrue prior to the end of the
Effectiveness Period, each of which shall survive termination of this Agreement.
(o) Information Available. So long as the Shelf Registration Statement
is effective, the Company shall furnish to each holder of Registrable
Securities:
(i) as soon as practicable after available (but in the case of the
Company's Annual Report to Stockholders, within 120 days after the end of each
fiscal year of the Company), one copy of its Annual Report to Stockholders
(which Annual Report shall contain financial statements audited in accordance
with generally accepted auditing standards certified by a national firm of
certified public accountants).
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IN WITNESS WHEREOF, the parties have executed this Registration Rights
Agreement as of the date first written above.
UNIROYAL TECHNOLOGY CORPORATION
By:/s/Xxxxxx X. Xxxxxxx, Xx.
------------------------------------------
Name: Xxxxxx X. Xxxxxxx, Xx.
Title: Executive Vice President, Treasurer
and Chief Financial Officer
Accepted as of the date first above written:
EMCORE CORPORATION.
By:/s/Xxxxxx Xxxxxxx
-----------------------------------
Name: Xxxxxx Xxxxxxx
Title: Chief Financial Officer
