Exhibit 10.2
UNI-PIXEL, INC.
INVESTORS’ RIGHTS
AGREEMENT
This INVESTORS’ RIGHTS
AGREEMENT (this “ Agreement ”) is made as
of February 13, 2007, by and among UNI-PIXEL, INC., a Delaware
corporation, (the “ Company ”), and the
investors listed in Schedule 1 hereto (each such investor
individually, an “ Investor ” and,
collectively, the “ Investors
”).
WHEREAS the Investors are parties to
the Securities Purchase Agreement of even date herewith by and
among the Company and the Investors (the “ Securities
Purchase Agreement ”), and it is a condition to the
closing of the sale of the Company’s Series B Preferred
Stock, par value $0.001 per share (the “ Series B
Preferred Stock ”), and Warrants (as defined below)
to the Investors that the Company execute and deliver this
Agreement with the Investors.
NOW, THEREFORE, in consideration of
the premises and mutual covenants contained herein, the parties
hereto hereby agree as follows:
1.
Definitions . As used in this Agreement, the following terms
shall have the respective meanings set forth below or elsewhere in
this Agreement as described below:
“ Affiliate
” of any Person means any other Person that, directly or
indirectly, through one or more intermediaries, controls, is
controlled by, or is under common control with, such Person, as
such terms are used and construed under Rule 144 (as defined
below), and with respect to any Tudor Entity (as defined below), in
addition to the foregoing, the term “ Affiliate
” shall also include the Related Entities.
“ Board ”
means the Board of Directors of the Company.
“ Business Day
” means any day except Saturday, Sunday and any day which is
a federal legal holiday or a day on which banking institutions in
the State of New York or Texas are authorized or required by law or
other governmental action to close.
“ Certificate of
Designations ” means the Certificate of Designations
of the Series B Preferred Stock filed by the Company with the
Secretary of State of the State of Delaware establishing the
rights, preferences and privileges of the Series B Preferred
Stock.
“ Closing Date
” has the meaning set forth in the Securities Purchase
Agreement.
“ Common Stock
” means the Company’s common stock, par value $0.001
per share, (including any securities into which or for which such
shares may be exchanged, or converted, pursuant to any stock
dividend, stock split, stock combination, recapitalization,
reclassification, reorganization or other similar
event).
“ Conversion
Shares ” means the shares of Common Stock issuable
upon conversion of the shares of Series B Preferred Stock, as set
forth in the Certificate of
Designations.
“ Equity
Securities ” means (i) any Common Stock, preferred
stock or other equity security of the Company, (ii) any security
convertible into or exercisable or exchangeable for, with or
without consideration, any Common Stock, preferred stock or other
equity security of the Company (including any option to purchase
such a convertible security), (iii) any security carrying any
option, warrant or right to subscribe to or purchase any Common
Stock, preferred stock or other equity security or (iv) any such
option, warrant or right.
“ Exchange Act
” means the Securities Exchange Act of 1934, as amended, and
all of the rules and regulations promulgated thereunder.
“ Fully Diluted Common
Stock ” means the outstanding Common Stock and the
shares of Common Stock issued or issuable upon conversion in full
of the shares of Series B Preferred Stock and exercise in full of
the Warrants, together with all other Equity Securities of the
Company outstanding as of any applicable record or measure date,
treated on an as-if-converted or as-if-exercised basis, as
applicable.
“ Holder ”
means any Investor who holds Registrable Securities (as defined
below) and any holder of Registrable Securities to whom the
registration rights conferred by this Agreement have been duly and
validly transferred in accordance with Section 9 of this
Agreement.
“ Initial Public
Offering ” means the closing of the Company’s
first public offering of the Company’s Common Stock
registered under the Securities Act.
“ Person ”
(whether or not capitalized) means an individual, partnership,
limited liability company, corporation, association, trust, joint
venture, unincorporated organization, and any government,
governmental department or agency or political subdivision
thereof.
“ Prospectus
” means the prospectus included in any Registration Statement
(as defined below) (including, without limitation, a prospectus
that includes any 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 prospectus supplement, with respect to the
terms of the offering of any portion of the Registrable Securities
covered by such Registration Statement, and all other amendments
and supplements to the Prospectus, including post-effective
amendments, and all material incorporated by reference in such
Prospectus.
“ Qualified Public
Offering ” means a bona fide public offering,
pursuant to an effective registration statement under the
Securities Act covering the offer and sale of Common Stock for the
account of the Company, by a reputable investment bank on a firm
commitment underwriting basis in which (x) the price per share of
Common Stock is at least five times (5x) the then applicable Series
B Preferred Conversion Price (as defined in the Certificate of
Designations), and (y) the gross cash proceeds to the Company
(before underwriting discounts, commissions and fees) are
$75,000,000 or more (or such other amount as approved by the Board,
including at least one Series B Director (as defined in the
Certificate of Designations), if any are
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on the Board at such time), and
following which offering the Common Stock is listed on the New York
Stock Exchange or admitted to quotation on NASDAQ (or such other
appropriate securities exchange as approved by the Board, including
at least one Series B Director, if any are on the Board at such
time).
Qualifying
Holder means any
Investor who (together with its Affiliates) holds Series B
Preferred Stock and/or Warrants representing (on an as-if-converted
and/or as-if-exercised basis, respectively) five percent (5%) or
more of the Company’s Fully Diluted Common Stock.
The terms “
register ,” “ registered
” and “ registration ” shall refer
to a registration effected by preparing and filing a Registration
Statement (as defined below) in compliance with the Securities Act
(as defined below) and the declaration or ordering of the
effectiveness of such registration.
“ Registrable
Securities ” means, at the relevant time of reference
thereto, the Conversion Shares and the Warrants Shares (including
any shares of capital stock that may be issued in respect thereof
pursuant to a stock split, stock dividend, recombination,
reclassification or the like); provided, however , that the
term “ Registrable Securities ” shall not
include any of the Conversion Shares or Warrant Shares that (a) are
actually sold pursuant to a registration statement that has been
declared effective under the Securities Act by the SEC, (b) may be
sold at such time by the holder thereof pursuant to Rule 144(k)
under the Securities Act, or (c) cease to be
outstanding.
“ Registration
Statement ” means any registration statements
contemplated by this Agreement, including (in each case) the
Prospectus, amendments and supplements to such registration
statement or Prospectus, pre- and post-effective amendments
thereto, all exhibits thereto, and all material incorporated by
reference in such registration statement or Prospectus.
“ Related
Entities ” includes, with respect to any Tudor
Entity, any entities for which any of the Tudor Entities or any of
its Affiliates serve as general partner and/or investment advisor
or in a similar capacity, and all mutual funds or other pooled
investment vehicles or entities under the control or management of
any of the Tudor Entities or its Affiliates. For purposes of
this Agreement (a) “ Tudor Entities ”
means each of the following: Tudor Investment Corporation, Tudor
Group Holdings, LLC, their respective Affiliates, and any Affiliate
or Affiliated Group of Tudor Investment Corporation and/or Tudor
Group Holdings LLC, and (b) with respect to the Tudor Entities,
“ Affiliated Group ” has the meaning
given to it in Section 1504 of the Internal Revenue Code of 1986,
as amended, and in addition includes any analogous combined,
consolidated or unitary group, as defined under any applicable
state, local or foreign income tax law.
“ Restricted
Securities ” means any Registrable Securities
required to bear the legend set forth in Section 9(b) of
this Agreement.
“ Rule 144
” means Rule 144 promulgated under the Securities Act and any
successor or substitute rule, law or provision.
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“ SEC ”
means the Securities and Exchange Commission.
“ Securities Act
” means the Securities Act of 1933, as amended, and all of
the rules and regulations promulgated thereunder.
“ Shares ”
means the shares of Series B Preferred Stock issued and sold by the
Company to the Investors pursuant to the Securities Purchase
Agreement.
“ Warrant Shares
” means the shares of Common Stock issued or issuable upon
the exercise of the Warrants.
“ Warrants
” means the warrants to purchase up to in aggregate 6,839,279
shares of Common Stock issued to the Investors pursuant to Section
2.3 of the Securities Purchase Agreement.
2.
Demand Registration .
(a)
Request for Registration . If the Company shall
receive at any time after one hundred eighty (180) days following
the effective date of the registration statement for the Initial
Public Offering a written request from (x) the Tudor Entities
(together with their Related Entities), provided at such time they
collectively hold shares of Common Stock (on an as-if-converted to
Common Stock basis in respect of the Shares and as-if-exercised
basis in respect of the Warrants) representing in aggregate five
percent (5%) or more of the Fully Diluted Common Stock or (y)
Investors (together with the Investors’ Affiliates) holding
shares of Common Stock (on an as-if-converted to Common Stock basis
in respect of the Shares and as-if-exercised basis in respect of
the Warrants) representing in aggregate twenty percent (20%) or
more of the Fully Diluted Common Stock, that the Company effect any
registration with respect to all or a part of the Registrable
Securities held by requesting Investors, then the Company shall,
subject to the conditions set forth in this Section 2 , use
its reasonable best efforts to:
(i)
as soon as practicable, prepare and file with the SEC a
Registration Statement on such form under the Securities Act then
available to the Company for the purpose of registering under the
Securities Act all or such portion of the Registrable Securities as
are specified in such request (together with any shares of Common
Stock desired to be included in such Registration Statement for the
account of the Company and/or the account of holders of piggy-back
registration rights with respect to the Company’s Common
Stock, subject to any limitations that may be advised by the
managing underwriter regarding the maximum size of the offering
pursuant to Section 2(d)); and
(ii)
cause such Registration Statement to be declared effective as soon
as practicable but in no event later than (x) the date that is
ninety (90) days following the receipt of such request, in the
event that such Registration Statement is not reviewed by the SEC
or (y) the date that is one hundred twenty (120) days following the
receipt of such request in the event such review takes place
(including filing with the SEC, within
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three (3) Business Days of the date
that the Company is notified in writing by the SEC that such
Registration Statement will not be reviewed or will not be subject
to further review, a request for acceleration of effectiveness in
accordance with Rule 461 promulgated under the Securities Act,
which request shall request an effective date that is within three
(3) Business Days of the date of such request), and to remain
effective, subject to the provisions of Section 2(c), for not less
than 180 days. The Company shall notify each requesting
Investor in writing promptly (and in any event within three (3)
Business Days) after such Registration Statement has been declared
effective by the SEC.
(b)
Limitations . The Company shall not be obligated to
effect, or to take any action to effect, any registration pursuant
to this Section 2 :
(i)
in any particular jurisdiction in which the Company would be
required to execute a general consent to service of process,
qualify to do business as a foreign corporation or become subject
to taxation in such jurisdiction, in effecting such registration,
qualification, or compliance, unless the Company is already subject
to service, qualified to do business or subject to taxation in such
jurisdiction and except as may be required by the Securities
Act;
(ii)
after the Company, in the case of Investors meeting the
requirements of Section 2(a)(x) or Section 2(a)(y), respectively,
has effected two (2) such registrations pursuant to this Section
2 (counting for these purposes only registrations which have
been (A) declared or ordered effective and pursuant to which
securities have been sold as contemplated in the Registration
Statement or (B) withdrawn at the request of the requesting
Investors other than as a result of a material adverse change to
the Company);
(iii)
during the period starting with the date sixty (60) days prior
to the Company’s good faith estimate of the date of the
filing of and ending on a date one hundred eighty (180) days
following the effective date of a registration for the
Company’s account that is subject to Section 3
hereof; provided, however, that the Company is actively
employing in good faith its best efforts to cause such registration
statement to become effective; or
(iv)
if the requesting Investors propose to dispose of Registrable
Securities that may be immediately registered on Form S-3
pursuant to Section 4 hereof for disposal in the manner
requested.
(c)
Deferral . Notwithstanding anything in this Section
2 to the contrary, if the Company shall furnish to the
Investors a certificate signed by the President, Chief Executive
Officer or Chief Financial Officer of the Company stating that the
Board has made the good faith determination (i) that the filing of
a Registration Statement pursuant to this Section 2 covering
the Registrable Securities would require, under the Securities Act,
premature disclosure in such Registration Statement (or the
Prospectus relating thereto) of material, nonpublic information
concerning the Company, its business or prospects or any proposed
material transaction involving the Company, (ii) that such
premature disclosure would be materially adverse to the
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Company, its business or prospects
or any such proposed material transaction or otherwise would not be
in the best interests of the Company and (iii) that it is therefore
essential to defer the filing of such Registration Statement (and
the Prospectus relating thereto), then the Company shall have the
right to defer the filing of such Registration Statement (and the
Prospectus relating thereto) for a period not greater than sixty
(60) consecutive days; provided, however, that the Company
shall not defer its obligation in this manner more than twice in
any consecutive twelve (12) month period. The Company agrees
that, as promptly as possible after the consummation, abandonment
or public disclosure of the circumstances that caused the Company
to defer the filing of such Registration Statement (and the
Prospectus relating thereto) pursuant to this Section 2(c) ,
the Company will as soon as practicable file such Registration
Statement.
(d)
Underwriting . If the requesting Investors intend to
distribute the Registrable Securities covered by their request by
means of an underwriting, they shall so advise the Company as a
part of their request made pursuant to this Section 2
. In such event, the right of any requesting Investor to
include all or any portion of its Registrable Securities in such
registration pursuant to this Section 2 shall be conditioned
upon such Investor’s participation in such underwriting and
the inclusion of such Investor’s Registrable Securities to
the extent provided herein. The Company shall (together with
all Investors proposing to distribute their securities through such
underwriting) enter into an underwriting agreement in customary
form with the representative of the underwriter or underwriters
selected for such underwriting by the requesting Investors, which
underwriters are reasonably acceptable to the Company.
If the managing underwriter advises
the requesting Investors in writing that, in its opinion, the
number of shares requested by the Investors to be included in such
registration, as well as any other shares requested by other
shareholders to be included in such registration pursuant to any
piggy-back registration rights or proposed to be included by the
Company, is likely to affect materially and adversely the success
of the offering, the timing, the method of distribution or the
price that would be received for any shares of Common Stock offered
in such offering, then, notwithstanding anything in this Section
2 or any other agreements of the Company with any other
shareholders to the contrary, the Company shall be required to
include in such registration the Registrable Securities requested
to be included in such registration for the account of the
requesting Investors, in priority to any other shareholders and the
Company, and as among the requesting Investors pro rata based on
the number of Registrable Securities held by them or on such other
basis as they may agree among themselves.
If an Investor which has requested
inclusion of Registrable Securities in such registration as
provided above does not agree to the terms of any such
underwriting, such Investor’s Registrable Securities may be
excluded therefrom. Any Registrable Securities excluded or
withdrawn from such underwriting shall also be withdrawn from such
registration. If Registrable Securities are so withdrawn from
the registration, and if the number of Registrable Securities to be
included in such registration was previously reduced as a result of
marketing factors pursuant to this Section 2(d) , then
the Company shall then offer to other shareholders who have
retained rights to include securities in the registration the right
to include additional shares in the registration in an aggregate
amount equal to the number of shares so withdrawn.
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