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EXHIBIT 4.4
CELERITEK, INC.
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (the "Agreement") is made as of
February 4, 2000, between Celeritek, Inc., a California corporation (the
"Company") and the persons (the "Purchasers") identified on EXHIBIT A to Common
Stock Purchase Agreement dated as of the date hereof (the "Purchase Agreement").
SECTION 1
RESTRICTIONS ON TRANSFERABILITY OF SECURITIES;
COMPLIANCE WITH SECURITIES ACT; REGISTRATION RIGHTS
CERTAIN DEFINITIONS. As used in this Agreement, the following terms
shall have the following respective meanings:
"Commission" shall mean the Securities and Exchange Commission or any
other federal agency at the time administering the Securities Act.
"Common Stock" shall mean Company Common Stock, no par value per share.
"Holder" shall mean (i) the Purchasers and (ii) any person holding
Registrable Securities to whom the rights under this Section 1 have been
transferred in accordance with Section 1.13 hereof.
"Registrable Securities" means the Shares until such time that such
securities have been (i) sold to or through a broker or dealer or underwriter in
a public distribution or a public securities transaction, or (ii) sold or are,
in the opinion of counsel for the Company, available for sale in a single
transaction exempt from the registration and prospectus delivery requirements of
the Securities Act so that all transfer restrictions and restrictive legends
with respect thereto are removed upon the consummation of such sale.
The terms "register," "registered" and "registration" refer to a
registration effected by preparing and filing a registration statement in
compliance with the Securities Act, and the declaration or ordering of the
effectiveness of such registration statement.
"Registration Expenses" shall mean all expenses, except as otherwise
stated below, incurred by the Company in complying with Section 1.5 hereof,
including, without limitation, all registration, qualification and filing fees,
printing expenses, escrow fees, fees and disbursements of counsel for the
Company, blue sky fees and expenses, the expense of any special audits incident
to or required by any such registration (but excluding the compensation of
regular employees of the Company which shall be paid in any event by the
Company).
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"Restricted Securities" shall mean the securities of the Company
required to bear the legend set forth in Section 1.3 hereof.
"Securities Act" shall mean the Securities Act of 1933, as amended, or
any similar federal statute and the rules and regulations of the Commission
thereunder, all as the same shall be in effect at the time.
"Selling Expenses" shall mean all underwriting discounts, selling
commissions and stock transfer taxes applicable to the securities registered by
the Holders and, except as set forth above, all reasonable fees and
disbursements of counsel for any Holder.
"Shares" shall mean the shares of Common Stock issued to the Purchaser
pursuant to the Purchase Agreement and any other securities issued in respect of
such securities upon any stock split, stock dividend, recapitalization, merger,
consolidation or similar event.
1.2 RESTRICTIONS ON TRANSFERABILITY. The Shares shall not be sold,
assigned, transferred or pledged except upon the conditions specified in this
Section 1. The Holder will cause any proposed purchaser, assignee, transferee,
or pledgee of any such shares held by the Holder to agree to take and hold such
securities subject to the provisions and upon the conditions specified in this
Section 1.
1.3 RESTRICTIVE LEGEND. Each certificate representing Shares and any
other securities issued in respect of the Shares upon any stock split, stock
dividend, recapitalization, merger, consolidation or similar event, shall
(unless otherwise permitted by the provisions of Section 1.4 below) be stamped
or otherwise imprinted with a legend in the following form (in addition to any
legend required under applicable state securities laws):
THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE BEEN ACQUIRED FOR
INVESTMENT AND HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT
OF 1933. SUCH SHARES MAY NOT BE SOLD OR TRANSFERRED IN THE
ABSENCE OF SUCH REGISTRATION UNLESS THE COMPANY RECEIVES AN
OPINION OF COUNSEL REASONABLY ACCEPTABLE TO IT STATING THAT SUCH
SALE OR TRANSFER IS EXEMPT FROM THE REGISTRATION AND PROSPECTUS
DELIVERY REQUIREMENTS OF SAID ACT.
Each Holder consents to the Company making a notation on its
records and giving instructions to any transfer agent of the Common Stock in
order to implement the restrictions on transfer established in this Section 1.
1.4 RESTRICTIONS ON TRANSFER; NOTICE OF PROPOSED TRANSFERS. The
holder of each certificate representing Restricted Securities by acceptance
thereof agrees to comply in all respects with the provisions of this Section
1.4. Prior to any proposed sale, assignment, transfer or pledge of any
Restricted Securities (other than (i) a transfer not involving a change in
beneficial ownership, (ii) any transfer by any Holder to (A) any individual or
entity controlled by, controlling, or under common control with, such Holder or
(B) any entity with respect to which such Holder (or any
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person controlled by, controlling, or under common control with, such Holder)
has the power to direct investment decisions, or (iv) in transactions in
compliance with Rule 144), and unless there is in effect a registration
statement under the Securities Act covering the proposed transfer, the holder
thereof shall give written notice to the Company of such holder's intention to
effect such transfer, sale, assignment or pledge. Each such notice shall
describe the manner and circumstances of the proposed transfer, sale, assignment
or pledge in sufficient detail, and shall be accompanied, at such holder's
expense by either (i) a written opinion of legal counsel who shall be, and whose
legal opinion shall be, reasonably satisfactory to the Company addressed to the
Company, to the effect that the proposed transfer of the Restricted Securities
may be effected without registration under the Securities Act, or (ii) a "no
action" letter from the Commission to the effect that the transfer of such
securities without registration will not result in a recommendation by the staff
of the Commission that action be taken with respect thereto, whereupon the
holder of such Restricted Securities shall be entitled to transfer such
Restricted Securities in accordance with the terms of the notice delivered by
the holder to the Company. Each certificate evidencing the Restricted Securities
transferred as above provided shall bear, except if such transfer is made
pursuant to Rule 144, the appropriate restrictive legend set forth in Section
1.3 above, except that such certificate shall not bear such restrictive legend
if in the opinion of counsel for such holder and the Company such legend is not
required in order to establish compliance with any provision of the Securities
Act. Notwithstanding the foregoing, so long as an executive officer or director
of the Holder serves as an executive officer or director of the Company, the
Holder agrees to not sell or transfer the Registrable Securities during periods
outside of the trading windows applicable to the officers of the Company as set
forth in the Company's Xxxxxxx Xxxxxxx Program adopted by the Company's Board of
Directors.
1.5 MANDATORY REGISTRATION. The Company shall prepare and on or prior
to the date that is fifteen (15) business days after the Closing Date (as
defined in the Purchase Agreement) file with the Commission a registration
statement (the "Registration Statement") on an appropriate form for registering
for resale by the Holder the Shares and the Company shall use its best efforts
to cause the Registration Statement to be declared effective no later than 120
days after the issuance of the Shares (the "Required Effective Date") pursuant
to the terms of the Purchase Agreement.
1.6 LIQUIDITY DAMAGES. In the event that the Registration Statement
is not declared effective by the Securities and Exchange Commission on or prior
to the Required Effective Date, and the cause of the delay is not related to
circumstances beyond the Company's control (such as the failure of the SEC to
review and act on the Registration Statement or amendments to the Registration
Statement in a timely manner), the Company shall pay to the Holders a cash
payment equal to (x) $0.133333 per Share (as adjusted for stock splits, stock
dividends, recapitalizations and similar events), times (y) the number of Shares
held by the Holder, times (z) the number of trading days after the Required
Effective Date that the Registration Statement is not effective.
1.7 EXPENSES OF REGISTRATION. All Registration Expenses incurred in
connection with all registrations pursuant to Section 1.5 shall be borne by the
Company. Unless otherwise stated, all Selling Expenses relating to securities
registered on behalf of the Holders and all other Registration Expenses shall be
borne by the Holders of such securities pro rata on the basis of the number of
shares so registered.
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1.8 REGISTRATION PROCEDURES. In the case of each registration,
qualification or compliance effected by the Company pursuant to this Section 1,
the Company will keep each Holder advised in writing as to the initiation of
each registration, qualification and compliance and as to the completion
thereof. At its expense the Company will:
(a) Prepare and file with the Commission a registration statement
with respect to such securities and use its best efforts to cause such
registration statement to become effective as soon as possible after the filing
thereof, and keep the Registration Statement effective pursuant to Rule 415 at
all times, subject to Section 1.8, until such date as is the earlier of (i) the
date on which all Registrable Securities have been sold by each Holder, and (ii)
the date on which the Registration Rights terminate as set forth in Section
1.15; and
(b) Furnish to the Holders participating in such registration and
to the underwriters of the securities being registered such reasonable number of
copies of the registration statement, preliminary prospectus, final prospectus
and such other documents as such underwriters may reasonably request in order to
facilitate the public offering of such securities.
1.9 SUSPENSION OF REGISTRATION. The Company shall promptly notify the
Holders of (i) the issuance by the SEC of a stop order suspending the
effectiveness of the Registration Statement, (ii) the happening of any event, of
which the Company has knowledge, as a result of which the prospectus included in
the Registration Statement, as then in effect, includes an untrue statement of a
material fact or omission to state a material fact required to be stated therein
or necessary to make the statements therein not misleading, and (iii) the
occurrence or existence of any pending corporate development that, in the
reasonable discretion of the Company, makes it appropriate to suspend the
availability of the Registration Statement, to comply with SEC rules. In each
case the Company shall use reasonable efforts to promptly prepare a supplement
or amendment to the Registration Statement to correct such untrue statement or
omission, and deliver such number of copies of such supplement or amendment to
each Holder as such Holder may reasonably request; provided that, the Company
may delay to the extent permitted by law the disclosure of material non-public
information concerning the Company the disclosure of which at the time is not,
in the good faith opinion of the Company, in the best interests of the Company
(an "Allowed Delay"). The Company shall promptly notify the Holders in writing
of the existence of an Allowed Delay and shall advise the Holders in writing to
cease all sales under the Registration Statement until the end of the Allowed
Delay.
1.10 INDEMNIFICATION.
(a) The Company will indemnify each Holder, each of its officers
and directors and partners, and each person controlling such Holder within the
meaning of Section 15 of the Securities Act, with respect to which registration,
qualification or compliance has been effected pursuant to this Section 1, and
each underwriter, if any, and each person who controls any underwriter within
the meaning of Section 15 of the Securities Act, against all expenses, claims,
losses, damages or liabilities (or actions in respect thereof), including any of
the foregoing incurred in settlement of any litigation, commenced or threatened,
arising out of or based on any untrue statement (or alleged untrue statement) of
a material fact contained in any registration statement, prospectus, offering
circular or other document, or any amendment or supplement thereto, incident to
any such registration, qualification or compliance, or based on any omission (or
alleged omission)
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to state therein a material fact required to be stated therein or necessary to
make the statements therein, in light of the circumstances in which they were
made, not misleading, or any violation by the Company of the Securities Act, the
Exchange Act, state securities law or any rule or regulation promulgated under
such laws applicable to the Company in connection with any such registration,
qualification or compliance, and within a reasonable period the Company will
reimburse each such Holder, each of its officers and directors, and each person
controlling such Holder, each such underwriter and each person who controls any
such underwriter, for any legal and any other expenses reasonably incurred in
connection with investigating, preparing or defending any such claim, loss,
damage, liability or action; provided that the Company will not be liable in any
such case to the extent that any such claim, loss, damage, liability or expense
arises out of or is based on any untrue statement or omission or alleged untrue
statement or omission, made in reliance upon and in conformity with written
information furnished to the Company by an instrument duly executed by such
Holder, controlling person or underwriter and stated to be specifically for use
therein.
(b) Each Holder will, if Registrable Securities held by such
Holder are included in the securities as to which such registration,
qualification or compliance is being effected, indemnify the Company, each of
its directors and officers, each underwriter, if any, of the Company's
securities covered by such a registration statement, each person who controls
the Company or such underwriter within the meaning of Section 15 of the
Securities Act, and each other such Holder, each of its officers and directors
and each person controlling such Holder within the meaning of Section 15 of the
Securities Act, against all claims, losses, damages and liabilities (or actions
in respect thereof) arising out of or based on any untrue statement (or alleged
untrue statement) of a material fact contained in any such registration
statement, prospectus, offering circular or other document, or any omission (or
alleged omission) to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, and within a
reasonable period will reimburse the Company, such Holders, such directors,
officers, persons, underwriters or control persons for any legal or any other
expenses reasonably incurred in connection with investigating or defending any
such claim, loss, damage, liability or action, in each case to the extent, but
only to the extent, that such untrue statement (or alleged untrue statement) or
omission (or alleged omission) is made in such registration statement,
prospectus, offering circular or other document in reliance upon and in
conformity with written information furnished to the Company by an instrument
duly executed by such Holder and stated to be specifically for use therein.
Notwithstanding the foregoing, the liability of each Holder under this
subsection (b) shall be limited in an amount equal to the gross proceeds before
expenses and commissions to each Holder received for the shares sold by such
Holder, unless such liability arises out of or is based on willful misconduct by
such Holder.
(c) Each party entitled to indemnification under this Section
1.10 (the "Indemnified Party") shall give notice to the party required to
provide indemnification (the "Indemnifying Party") promptly after such
Indemnified Party has actual knowledge of any claim as to which indemnity may be
sought, and shall permit the Indemnifying Party to assume the defense of any
such claim or any litigation resulting therefrom, provided that counsel for the
Indemnifying Party, who shall conduct the defense of such claim or litigation,
shall be approved by the Indemnified Party (whose approval shall not
unreasonably be withheld), and the Indemnified Party may participate in such
defense at such party's expense, and provided further that the failure of any
Indemnified Party to give notice as provided herein shall not relieve the
Indemnifying Party of its
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obligations under this Section 1 unless the failure to give such notice is
materially prejudicial to an Indemnifying Party's ability to defend such action
and provided further, that the Indemnifying Party shall not assume the defense
for matters as to which there is a conflict of interest or separate and
different defenses. No Indemnifying Party, in the defense of any such claim or
litigation, shall, except with the consent of each Indemnified Party, consent to
entry of any judgment or enter into any settlement which does not include as an
unconditional term thereof the giving by the claimant or plaintiff to such
Indemnified Party of a release from all liability in respect to such claim or
litigation.
1.11 INFORMATION BY HOLDER. The Holder or Holders of Registrable
Securities included in any registration shall furnish to the Company such
information regarding such Holder or Holders, the Registrable Securities held by
them and the distribution proposed by such Holder or Holders as the Company may
request in writing and as shall be required in connection with any registration,
qualification or compliance referred to in this Section 1.
1.12 RULE 144 REPORTING. With a view to making available the benefits
of certain rules and regulations of the Commission which may at any time permit
the sale of the Restricted Securities to the public without registration, after
such time as a public market exists for the Common Stock of the Company, the
Company agrees to use its best efforts to:
(a) Make and keep public information available, as those terms
are understood and defined in Rule 144 under the Securities Act, at all times
after the effective date that the Company becomes subject to the reporting
requirements of the Securities Act or the Exchange Act;
(b) Use its best efforts to file with the Commission in a timely
manner all reports and other documents required of the Company under the
Securities Act and the Exchange Act (at any time after it has become subject to
such reporting requirements); and
(c) So long as a Holder owns any Restricted Securities to furnish
to the Holder forthwith upon request a written statement by the Company as to
its compliance with the reporting requirements of said Rule 144, and of the
Securities Act and the Exchange Act, a copy of the most recent annual or
quarterly report of the Company, and such other reports and documents of the
Company and other information in the possession of or reasonably obtainable by
the Company as the Holder may reasonably request in availing itself of any rule
or regulation of the Commission allowing the Holder to sell any such securities
without registration.
1.13 TRANSFER OF REGISTRATION RIGHTS. The rights to cause the Company
to register securities granted Holders under Section 1.5 may be assigned to a
transferee or assignee reasonably acceptable to the Company which acquires at
least 100,000 shares of Registrable Securities in connection with any transfer
or assignment of Registrable Securities by the Holders.
1.14 STANDOFF AGREEMENT. In connection with any public offering of the
Company's securities, the Holder agrees, upon request of the Company or the
underwriters managing any underwritten offering of the Company's securities, not
to sell, make any short sale of, loan, grant any option for the purchase of, or
otherwise dispose of any Registrable Securities (other than those included in
the registration) without the prior written consent of the Company or such
underwriters, as the case may be, for such period of time (not to exceed one
hundred eighty (180) days) from the
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effective date of such registration as may be requested by the underwriters,
provided that the officers and directors of the Company who own stock of the
Company and each holder representing at least 1% ownership of the Company's
outstanding Common Stock also agrees to such restrictions.
1.15 TERMINATION OF REGISTRATION RIGHTS. The registration rights
granted pursuant to Section 1 shall terminate as to each Holder at such time as
a public market for the Company's Common Stock exists and all Registrable
Securities held by such Holder may, in the opinion of counsel to the Company
(which opinion shall be addressed and rendered to Holder), be sold pursuant to
Rule 144(k).
SECTION 2
MISCELLANEOUS
2.1 GOVERNING LAW. This Agreement shall be governed in all respects
by the internal laws of the State of California.
2.2 SURVIVAL. The covenants and agreements made herein shall survive
the closing of the transactions contemplated hereby.
2.3 SUCCESSORS AND ASSIGNS. Except as otherwise provided herein, the
provisions hereof shall inure to the benefit of, and be binding upon, the
successors, assigns, heirs, executors and administrators of the parties hereto.
2.4 ENTIRE AGREEMENT; AMENDMENT. This Agreement and the Purchase
Agreement constitute the full and entire understanding and agreement between the
parties with regard to the subjects hereof and thereof, and no party shall be
liable or bound to any other party in any manner by any warranties,
representations or covenants except as specifically set forth herein or therein.
Except as expressly provided herein, neither this Agreement nor any term hereof
may be amended, waived, discharged or terminated other than by a written
instrument signed by the party against whom enforcement of any such amendment,
waiver, discharge or termination is sought; provided, however, that holders of a
majority of the Registrable Securities may, with the Company's prior written
consent, waive, modify or amend on behalf of all holders, any provisions hereof.
2.5 NOTICES, ETC. All notices and other communications required or
permitted hereunder shall be in writing and shall be mailed by registered or
certified mail, postage prepaid, or otherwise delivered by hand or by messenger,
addressed (a) if to a Holder, at such address as such Holder shall have
furnished the Company in writing, or, until any such holder so furnishes an
address to the Company, then to and at the address of the last Holder who has so
furnished an address to the Company, or (b) if to the Company, one copy should
be sent to its address set forth on the cover page of this Agreement and
addressed to the attention of the President, or at such other address as the
Company shall have furnished to the Holders.
Each such notice or other communication shall for all purposes of this
Agreement be treated as effective or having been given when delivered if
delivered personally, or, if sent by mail, at the
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earlier of its receipt or 72 hours after the same has been deposited in a
regularly maintained receptacle for the deposit of the United States mail,
addressed and mailed as aforesaid.
2.6 DELAYS OR OMISSIONS. Except as expressly provided herein, no
delay or omission to exercise any right, power or remedy accruing to any party
to this Agreement upon any breach or default of any other party under this
Agreement, shall impair any such right, power or remedy of such nondefaulting
party nor shall it be construed to be a waiver of any such breach or default, or
an acquiescence therein, or of or in any similar breach or default thereafter
occurring; nor shall any waiver of any single breach or default be deemed a
waiver of any other breach or default theretofore or thereafter occurring. Any
waiver, permit, consent or approval of any kind or character on the part of any
party of any breach or default under this Agreement, or any waiver on the part
of any holder of any provisions or conditions of this Agreement, must be in
writing and shall be effective only to the extent specifically set forth in such
writing. All remedies, either under this Agreement or by law or otherwise
afforded to any party to this Agreement, shall be cumulative and not
alternative.
2.7 COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be enforceable against the parties actually
executing such counterparts, and all of which together shall constitute one
instrument.
2.8 SEVERABILITY. In the event that any provision of this Agreement
becomes or is declared by a court of competent jurisdiction to be illegal,
unenforceable or void, this Agreement shall continue in full force and effect
without said provision; provided that no such severability shall be effective if
it materially changes the economic benefit of this Agreement to any party.
2.9 TITLES AND SUBTITLES. The titles and subtitles used in this
Agreement are used for convenience only and are not considered in construing or
interpreting this Agreement.
[SIGNATURE PAGE(s) FOLLOW(s)]
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The foregoing Agreement is hereby executed as of the date first
above written.
"COMPANY"
CELERITEK, INC.
a California Corporation
By:
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Xxxxx Xxxxxxxx
Chief Executive Officer
"PURCHASER"
By:
-------------------------------------
Name:
-----------------------------------
Title:
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[SIGNATURE PAGE TO REGISTRATION RIGHTS AGREEMENT]
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SCHEDULE OF PARTIES TO REGISTRATION RIGHTS AGREEMENT
Party Number of Registrable Shares
Xxxx Capital Management L.P. 545,000
Xxxxx Xxxx 69,000
Bricoleur Partners I L.P. 10,500
Bricoleur Partners II L.P. 170,300
Aventine 9,200
Lyxor Master Fund Channel Islands 10,000
Xxxxxx & McBaine Int'l 16,000
Xxx X. Xxxxxx 5,000
Xxxxxx X. Xxxxx-Xxxxxx 1,000
Lagunitas Partners L.P. 28,000
Gottardo Bank 99,999
Xxxx Xxxx Fund L.P. 69,444
Xxxx Xxxx Offshore Fund 3,611
Zurich HFR Nmaster Hedge Fund Index LTD 7,500
Asset Management Holding Co 19,444
Xxxxxxxxxxxx Associates 150,000
Xxxxxxx Capital Partners, L.P. 50,000
Snorkel Bay & Co 150,000
Snail Sand & Co 47,000
X X Were Global Small Companies Fund 7,000
NZFunds Global Small Companies Trust 27,000
Xxxxx Xxxxxx Xx. 5,000
Totals 1,499,998
