Exhibit 10.1
AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT (this
"AGREEMENT"), dated as of September 29, 2000 by and between INTEGRATED DEFENSE
TECHNOLOGIES, INC. (the "COMPANY"), a Delaware corporation, X.X. XXXXXXX
MEZZANINE FUND, L.P. ("WMF"), a Delaware limited partnership, X.X. XXXXXXX
MARKET VALUE FUND, L.P. ("WMVF"), a Delaware limited partnership, XXXXXXXXX
CAPITAL, L.P. ("XXXXXXXXX"), a Delaware limited partnership, FIRST UNION
INVESTORS, INC. ("FIRST UNION"), a North Carolina corporation, and BNY CAPITAL
PARTNERS, L.P., ("BANK OF NEW YORK"), a Delaware limited partnership. This
Agreement amends and restates the Amended and Restated Registration Rights
Agreement dated as of August 6, 1999 by and between the Company and WMF (the
"PRIOR AGREEMENT").
W I T N E S S E T H :
WHEREAS, pursuant to the terms of the Securities Purchase
Agreement, dated as of August 6, 1999, by and between the Company, PEI
Electronics Inc, a Delaware corporation, SierraTech, Inc., a Delaware
corporation, and WMF, WMF purchased a warrant (the "1999 WARRANT") to purchase
5,556 shares of common stock, par value $0.01 per share (the "COMMON STOCK"), of
the Company, and entered into the Prior Agreement; and
WHEREAS, this Agreement is intended to amend, replace and
restate the Prior Agreement; and
WHEREAS, pursuant to the terms of the Securities Purchase
Agreement (the "PURCHASE AGREEMENT"), dated as of the date hereof, by and
between the Company, WMF, WMVF, XxxxxXxxx, First Union and Bank of New York: (i)
WMF will purchase from the Company (a) a Subordinated Promissory Note (the "WMF
NOTE") of the Company in the principal amount of $25,000,000 and (b) a warrant
(the "WMF WARRANT") to purchase 415 shares of Common Stock of the Company; (ii)
WMVF will purchase from the Company (a) a Subordinated Promissory Note (the
"WMVF NOTE") of the Company in the principal amount of $4,250,000 and (b) a
warrant (the "WMVF WARRANT") to purchase 470 shares of Common Stock of the
Company; (iii) XxxxxXxxx will purchase from the Company (a) a Subordinated
Promissory Note (the "XXXXXXXXX NOTE") of the Company in the principal amount of
$2,000,000 and (b) a warrant (the "XXXXXXXXX WARRANT") to purchase 221 shares of
Common Stock of the Company; (iv) First Union will purchase from the Company (a)
a Subordinated Promissory Note (the "FIRST UNION NOTE") of the Company in the
principal amount of $10,000,000 and (b) a warrant (the "FIRST UNION WARRANT") to
purchase 1,106 shares of Common Stock of the Company; and (v) Bank of New York
will purchase from the Company (a) a Subordinated Promissory Note (the "BANK OF
NEW YORK NOTE" and, together with the WMF Note, the WMVF Note, the XxxxxXxxx
Note and the First Union Note, the "NOTES") of the Company in the principal
amount of $10,000,000 and (b) a warrant (the "BANK OF NEW YORK
WARRANT" and, together with the 1999 Warrant, the WMF Warrant, the WMVF Warrant,
the XxxxxXxxx Warrant and the First Union Warrant, the "WARRANTS") to purchase
1,106 shares of Common Stock of the Company; and
WHEREAS, the Company and the other parties hereto desire to
provide for the circumstances under which the Company will register securities
of the Company on behalf of such other parties.
NOW, THEREFORE, as an inducement to the parties hereto to
consummate the transactions contemplated by the Purchase Agreement and in
consideration of the premises and of the mutual covenants and obligations
hereinafter set forth, the Company hereby covenants and agrees with the other
parties hereto, and with each subsequent holder of Restricted Securities (as
such term is defined herein), as follows:
SECTION 1A. TERMINATION OF PRIOR AGREEMENT. Upon execution of
this Agreement, the Prior Agreement shall be deemed terminated and of no further
force and effect.
SECTION 1. DEFINITIONS. As used herein, the following terms
shall have the following respective meanings:
"AFFILIATE" shall mean (i) in the case of an entity,
any Person who or which, directly or indirectly, through one or more
intermediaries, controls or is controlled by, or is under common
control with, any specified Person or (ii) in the case of an
individual, such individual's spouse, children, grandchildren or
parents or a trust primarily for the benefit of any of the foregoing.
For purposes of this definition, "CONTROL" (including with correlative
meanings, the terms "CONTROLLING", "CONTROLLED BY" and under "COMMON
CONTROL WITH") means the possession, directly or indirectly, of the
power 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.
"CERTIFICATE OF INCORPORATION" shall mean the
Certificate of Incorporation of the Company, as amended, in effect on
the date hereof.
"COMMISSION" shall mean the Securities and Exchange
Commission, or any other Federal agency at the time administering the
Securities Act.
"INVESTORS" shall mean each of the parties hereto,
other than the Company, and their respective successors and assigns.
"NOTES" shall have the meaning ascribed to such term
in the third Whereas clause.
"REGISTRATION EXPENSES" shall mean the expenses so
described in Section 7 hereof.
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"RESTRICTED SECURITIES" shall mean the Notes, the
Warrants and the Restricted Stock, for so long as the instruments or
certificates evidencing such securities shall be required to bear the
legend set forth in Section 2 hereof.
"RESTRICTED STOCK" shall mean the shares of Common
Stock underlying the Warrants, the certificates for which are required
to bear the legend set forth in Section 2 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 the expenses so
described in Section 7 hereof.
"THRESHOLD AMOUNT" shall mean that number of
Investors holding at least two-thirds (2/3) of the Restricted Stock
then held by all Investors.
"WARRANTS" shall have the meaning ascribed to such
term in the third Whereas clause.
SECTION 2. RESTRICTIVE LEGEND. The Notes and each certificate
representing the Restricted Securities and, except as otherwise provided in
Section 3 hereof, each certificate issued upon exchange or transfer of any such
securities shall be stamped or otherwise imprinted with a legend substantially
in the following form:
"THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933 NOR UNDER APPLICABLE STATE SECURITIES LAWS AND MAY NOT BE SOLD,
TRANSFERRED OR OTHERWISE DISPOSED OF UNLESS IT HAS BEEN REGISTERED UNDER SUCH
LAWS OR AN EXEMPTION FROM REGISTRATION IS AVAILABLE."
SECTION 3. NOTICE OF PROPOSED TRANSFER. Prior to any proposed
transfer of any Restricted Securities (other than under the circumstances
described in Section 4 or 5 hereof), the holder thereof shall give written
notice to the Company of its intention to effect such transfer. Each such notice
shall describe the manner of the proposed transfer and, if requested by the
Company, shall be accompanied by an opinion of counsel satisfactory to the
Company to the effect that the proposed transfer may be effected without
registration under the Securities Act, whereupon such holder shall be entitled
to transfer such securities in accordance with the terms of its notice;
PROVIDED, HOWEVER, that no such opinion of counsel shall be required for a
transfer by a holder of Restricted Securities (x) to an Affiliate of such holder
or (y) in the case of a holder that is a partnership, to a partner or employee
of such holder or a retired partner or retired employee of such holder who
retires after the date hereof, or to the estate of any such partner, retired
partner, employee or retired employee, or a transfer by gift, will or intestate
succession from any holder of Restricted
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Securities to his or her spouse or members of his or her or his or her spouse's
family or a trust for the benefit of any of the foregoing persons, in any such
case set forth in clauses (x) and (y), only if the transferee agrees in writing
to be subject to the terms hereof to the same extent as if such transferee were
an original holder of Restricted Securities hereunder. All Restricted Securities
transferred as above provided shall bear the legend set forth in Section 2,
except that such securities shall not bear such legend if (i) such transfer is
in accordance with the provisions of Rule 144 (or any other rule permitting
public sale without registration under the Securities Act) or (ii) the opinion
of counsel referred to above is to the further effect that the transferee and
any subsequent transferee (other than an affiliate of the Company) would be
entitled to transfer such securities in a public sale without registration under
the Securities Act.
SECTION 4. REQUIRED REGISTRATION.
(a) At any time following the consummation of an initial
public offering by the Company of its securities, WMF, or if at such time as
some or all of the Restricted Securities held by WMF have then been transferred,
a Threshold Amount of Investors may, by written notice, request on not more than
two occasions that the Company register under the Securities Act all or any
portion of the shares of Restricted Stock held by such requesting holders for
sale in the manner specified in such notice; PROVIDED, HOWEVER, that the Company
shall not be obligated to register Restricted Stock pursuant to such request:
(i) unless at the time of such request, all of the Investors shall hold in the
aggregate 5.0% or more of all outstanding shares of Common Stock on a fully
diluted basis; (ii) in any particular jurisdiction (other than New York) in
which the Company would be required to qualify to do business or to execute a
general consent to service of process in effecting such registration when it was
not then so qualified and had not filed such a consent; (iii) during the period
beginning 30 days prior to the filing, and ending on a date 90 days following
the effective date, of a registration statement filed by the Company relating to
an underwritten offering only of the Company's capital stock; or (iv) if counsel
to the Company opines to the requesting Investors that the filing of such a
registration statement would require the disclosure of material non-public
information about the Company, the disclosure of which could have a material
adverse effect on the business or financial condition of the Company, in which
event no such registration statement shall be filed until the earlier of the
lapse of 90 days from the issuance of the opinion of Company counsel or the
issuance of a subsequent opinion that such information is no longer required to
be disclosed, is not material or non-public, or its disclosure would not have a
material adverse effect on the business or financial condition of the Company;
PROVIDED, HOWEVER, that the Company may not exercise its right under this clause
(iv) more than once in any 12-month period. Notwithstanding anything to the
contrary contained herein, no request may be made under this Section 4 within
360 days after the effective date of a registration statement filed by the
Company covering a firm commitment underwritten public offering in which the
holders of Restricted Stock shall have been entitled to join pursuant to this
Section 4 or Section 5 hereof and in which there shall have been effectively
registered all shares of Restricted Stock as to which registration shall have
been so requested (and which requests shall total at least twenty-five percent
of the shares of Restricted Stock originally purchased by the Investors).
(b) Promptly following receipt of any notice under this
Section 4, the Company shall immediately notify any other Investors from whom
notice has not been received and shall file
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and use its best efforts to have declared effective a registration statement
under the Securities Act for the public sale, in accordance with the method of
disposition specified in such notice from requesting holders, of the number of
shares of Restricted Stock specified in such notice (and in any notices received
from other holders of Restricted Stock within 20 days after the date of such
notice from the Company). If such method of disposition shall be an underwritten
public offering, the Company may designate the managing underwriter of such
offering, subject to the approval of a majority in interest of the selling
holders of Restricted Stock, which approval shall not be unreasonably withheld.
The number of shares of Restricted Stock to be included in such an underwriting
may be reduced (PRO RATA among the requesting holders) if and to the extent that
the managing underwriter shall be of the opinion that such inclusion would
adversely affect the marketing of the securities to be sold therein. With
respect to the preceding sentence, if the Company elects to reduce PRO RATA the
amount of Restricted Stock proposed to be offered in the underwriting, for
purposes of making any such reduction, each holder of Restricted Stock which is
a partnership, together with the affiliates, partners, employees, retired
partners and retired employees of such holder, the estates and family members of
any such partners, employees, retired partners and retired employees and of
their spouses, and any trusts for the benefit of any of the foregoing persons
shall be deemed to be a single "person", and any PRO RATA reduction with respect
to such "person" shall be based upon the aggregate amount of shares of
Restricted Stock owned by all entities and individuals included as such
"person", as defined in this sentence (and the aggregate amount so allocated to
such "person" shall be allocated among the entities and individuals included in
such "person" in such manner as such holder of Restricted Stock may reasonably
determine). The Company shall be obligated to register Restricted Stock pursuant
to requests made by a Threshold Amount of the Investors under this Section 4 on
two occasions only; PROVIDED, HOWEVER, that as to such occasion such obligation
shall be deemed satisfied only when a registration statement covering all shares
of Restricted Stock specified in notices received as aforesaid, for sale in
accordance with the method of disposition specified by the requesting holders,
shall have become effective and, if such method of disposition is a firm
commitment underwritten public offering, all such shares shall have been sold
pursuant thereto.
(c) The Company shall be entitled to include in any
registration statement referred to in this Section 4 for which the method of
distribution is an underwritten public offering, for sale in accordance with the
method of disposition specified by the requesting holders, shares of Common
Stock to be sold by the Company for its own account, except as and to the extent
that, in the opinion of the managing underwriter (if such method of disposition
shall be an underwritten public offering), such inclusion would adversely affect
the marketing of the Restricted Stock to be sold. Except with respect to
registration statements on Form S-3 or Form S-8, or as otherwise provided in
this paragraph 4(c), the Company will not file with the Commission any other
registration statement with respect to its Common Stock, whether for its own
account or that of other stockholders, from the date of receipt of a notice from
requesting holders pursuant to this Section 4 until the completion of the period
of distribution of the registration contemplated thereby.
SECTION 5. INCIDENTAL REGISTRATION; FORM S-3 REGISTRATION.
(a) If the Company at any time (other than pursuant to Section
4 hereof) proposes to register any of its securities under the Securities Act
for sale to the public, whether for its own
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account or for the account of other security holders or both (except with
respect to registration statements on Form S-4 or S-8 or another form not
available for registering Restricted Stock for sale to the public), each such
time it will give written notice to all holders of Restricted Stock of its
intention so to do. Upon the written request of any such holder, given within 20
days after the date of receipt of any such notice, to register any of its
Restricted Stock (which request shall state the intended method of disposition
thereof), the Company will use its best efforts to cause the Restricted Stock as
to which registration shall have been so requested to be included in the
securities to be covered by the registration statement proposed to be filed by
the Company, all to the extent requisite to permit the sale or other disposition
by the holder (in accordance with its written request) of such Restricted Stock
so registered. The Company may withdraw any such registration statement before
it becomes effective or postpone the offering of securities contemplated by such
registration statement without any obligation to the holders of any Restricted
Stock. In the event that any registration pursuant to this Section 5 shall be,
in whole or in part, an underwritten public offering of Common Stock, any
request by a holder pursuant to this Section 5 to register Restricted Stock
shall specify that either (i) such Restricted Stock is to be included in the
underwriting on the same terms and conditions as the shares of Common Stock
otherwise being sold through underwriters under such registration or (ii) such
Restricted Stock is to be sold in the open market without any underwriting, on
terms and conditions comparable to those normally applicable to offerings of
common stock in reasonably similar circumstances. The number of shares of
Restricted Stock to be included in such an underwriting may be reduced (PRO RATA
among the requesting holders) if and to the extent that the managing underwriter
shall be of the opinion that such inclusion would adversely affect the marketing
of the securities to be sold by the Company therein; PROVIDED, HOWEVER, that if
any shares are to be included in such underwriting for the account of any person
other than the Company, the number of shares to be included by any such person
shall be reduced first; and PROVIDED FURTHER, HOWEVER, that the number of any
such shares held by any person other than the holders of Restricted Stock
hereunder shall be reduced before the number of any such shares held by the
holders of Restricted Stock hereunder is reduced. With respect to the first
proviso of the preceding sentence, if the Company elects to reduce PRO RATA the
amount of Restricted Stock proposed to be offered in the underwriting for the
accounts of all persons other than the Company, for purposes of making any such
reduction, each holder of Restricted Stock which is a partnership, together with
the affiliates, partners, employees, retired partners and retired employees of
such holder, the estates and family members of any such partners, employees,
retired partners and retired employees and of their spouses, and any trusts for
the benefit of any of the foregoing persons shall be deemed to be a single
"person," and any PRO RATA reduction with respect to such "person" shall be
based upon the aggregate amount of shares of Restricted Stock owned by all
entities and individuals included as such "person", as defined in this sentence
(and the aggregate amount so allocated to such "person" shall be allocated among
the entities and individuals included in such "person" in such manner as such
holder of Restricted Stock may reasonably determine). Notwithstanding anything
to the contrary contained in this Section 5, in the event that there is an
underwritten offering of securities of the Company pursuant to a registration
covering Restricted Stock and a selling holder of Restricted Stock does not
elect to sell his, her or its Restricted Stock to the underwriters of the
Company's securities in connection with such offering, such holder shall refrain
from selling such Restricted Stock not registered pursuant to this Section 5
during the period of distribution of the Company's securities by such
underwriters and the period in which the underwriting syndicate participates in
the after market; PROVIDED, HOWEVER, that such holder shall, in any event, be
entitled
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to sell its Restricted Stock in connection with such registration commencing on
the 120th day after the effective date of such registration statement.
(b) If, at a time when Form S-3 is available for such
registration, the Company shall receive from any Investor a written request or
requests that the Company effect a registration on Form S-3 of any of such
holder's Restricted Stock, the Company will promptly give written notice of the
proposed registration to all other holders of Restricted Stock and, as soon as
practicable, effect such registration and all such related qualifications and
compliances as may be requested and as would permit or facilitate the sale and
distribution of all Restricted Stock as are specified in such request and any
written requests of other holders given within 20 days after receipt of such
notice. The Company shall not be required to file a registration statement under
Form S-3 if it would not be required to file a registration statement under
Section 4 hereof pursuant to Section 4(a)(iv). The Company shall have no
obligation to effect a registration under this Section 5(b) unless either (i)
all the outstanding shares of Restricted Stock are requested to be sold pursuant
to such registration or (ii) the aggregate offering price of the securities
requested to be sold pursuant to such registration is, in the good faith
judgment of the Company, expected to be equal to or greater than $1,000,000. Any
registration under this Section 5(b) will not be counted as a registration under
Section 4 above.
SECTION 6. REGISTRATION PROCEDURES. If and whenever the
Company is required by the provisions of Section 4 or 5 hereof to use its best
efforts to effect the registration of any shares of Restricted Stock under the
Securities Act, the Company will, as expeditiously as possible:
(a) prepare and file with the Commission a registration
statement (which, in the case of an underwritten public offering pursuant to
Section 4 hereof, shall be on Form S-1 or other form of general applicability
satisfactory to the managing underwriter selected as therein provided) with
respect to such securities and use its best efforts to cause such registration
statement to become and remain effective for the period of the distribution
contemplated thereby (determined as hereinafter provided);
(b) 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 for
the period specified in paragraph 6(a) above and as to comply with the
provisions of the Securities Act with respect to the disposition of all
Restricted Stock covered by such registration statement in accordance with the
sellers' intended method of disposition set forth in such registration statement
for such period;
(c) furnish to each seller and to each underwriter such number
of copies of the registration statement and the prospectus included therein
(including each preliminary prospectus) as such persons may reasonably request
in order to facilitate the public sale or other disposition of the Restricted
Stock covered by such registration statement;
(d) use its best efforts to register or qualify the Restricted
Stock covered by such registration statement under the securities or blue sky
laws of such jurisdictions as the sellers of Restricted Stock or, in the case of
an underwritten public offering, the managing underwriter shall reasonably
request;
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(e) immediately notify each seller under such registration
statement and each underwriter, at any time when a prospectus relating thereto
is required to be delivered under the Securities Act, of the happening of any
event as a result of which the prospectus contained in such registration
statement, as then in effect, includes an untrue statement of a material fact or
omits to state any material fact required to be stated therein not misleading in
the light of the circumstances then existing;
(f) use its best efforts to furnish, at the request of any
seller, on the date that Restricted Stock is delivered to the underwriters for
sale pursuant to such registration: (i) 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 (A) that such registration statement
has become effective under the Securities Act, (B) that, 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 and (C) that the registration statement
and the related prospectus, and each amendment or supplement thereof, comply as
to form in all material respects with the requirements of the Securities Act and
the applicable rules and regulations of the Commission thereunder (except that
such counsel need not express any opinion as to financial statements contained
therein), and to such other effects as may reasonably be requested by counsel
for the underwriters or by such seller or its counsel, and (ii) a letter dated
such date from the independent public accountants retained by the Company,
addressed to the underwriters and to such seller, stating that they are
independent public accountants within the meaning of the Securities Act and
that, in the opinion of such accountants, the financial statements of the
Company included in the registration statement or the prospectus, or any
amendment or supplement thereof, comply as to form in all material respects with
the applicable accounting requirements of the Securities Act, and such letter
shall additionally cover such other financial matters (including information as
to the period ending no more than five business days prior to the date of such
letter) with respect to the registration in respect of which such letter is
being given as such underwriters or such seller may reasonably request; and
(g) make available for inspection by each seller, any
underwriter participating in any distribution pursuant to such registration
statement, and any attorney, accountant or other agent retained by such seller
or underwriter, all financial and other records, pertinent corporate documents
and properties of the Company, and cause the Company's officers, directors and
employees to supply all information reasonably requested by any such seller,
underwriter, attorney, accountant or agent in connection with such registration
statement.
For purposes of paragraphs 6 (a) and (b) above and of Section
4(c) hereof, the period of distribution of Restricted Stock in a firm commitment
underwritten public offering shall be deemed to extend until each underwriter
has completed the distribution of all securities purchased by it, and the period
of distribution of Restricted Stock in any other registration shall be deemed to
extend until the earlier of the sale of all Restricted Stock covered thereby or
nine months after the effective date thereof.
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In connection with each registration hereunder, the selling
holders of Restricted Stock will furnish to the Company in writing such
information with respect to themselves and the proposed distribution by them as
shall be necessary in order to assure compliance with Federal and applicable
state securities laws.
In connection with each registration pursuant to Sections 4
and 5 hereof covering an underwritten public offering, the Company agrees to
enter into a written agreement with the managing underwriter selected in the
manner herein provided in such form and containing such provisions as are
customary in the securities business for such an arrangement between major
underwriters and companies of the Company's size and investment stature,
provided that such agreement shall not contain any such provision applicable to
the Company which is inconsistent with the provisions hereof and provided,
further, that the time and place of the closing under said agreement shall be as
mutually agreed upon between the Company and such managing underwriter.
SECTION 7. EXPENSES. All expenses incurred by the Company in
complying with Sections 4 and 5 hereof, including, without limitation, all
registration and filing fees, printing expenses, fees and disbursements of
counsel and independent public accountants for the Company, fees of the National
Association of Securities Dealers, Inc., transfer taxes, fees of transfer agents
and registrars and costs of insurance and fees and expenses of one counsel for
the sellers of Restricted Stock, but excluding any Selling Expenses, are herein
called "Registration Expenses." All underwriting discounts and selling
commissions applicable to the sale of Restricted Stock are herein called
"Selling Expenses." The Company will pay all Registration Expenses in connection
with each registration statement filed pursuant to Section 4 or Section 5
hereof. All Selling Expenses incurred in connection with any sale of Restricted
Stock by any participating seller shall be borne by such participating seller,
or by such persons other than the Company (except to the extent the Company
shall be a seller) as they may agree; PROVIDED, HOWEVER, if the Company
withdraws any registration statement before it becomes effective with respect to
which holders of Restricted Stock shall have exercised incidental registration
rights as contemplated by Section 5(a), the Company shall reimburse any such
holder for all Selling Expenses incurred in connection with such registration.
SECTION 8. INDEMNIFICATION. In the event of a registration of
any of the Restricted Stock under the Securities Act pursuant to Section 4 or 5
hereof, the Company will indemnify and hold harmless each seller of such
Restricted Stock thereunder and each underwriter of such Restricted Stock
thereunder and each other person, if any, who controls such seller or
underwriter within the meaning of the Securities Act, against any and all
losses, claims, damages, expenses or liabilities, joint or several, to which
such seller or underwriter or controlling person may become subject under the
Securities Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon any
untrue statement or alleged untrue statement of any material fact contained in
any registration statement under which such Restricted Stock was registered
under the Securities Act pursuant to Section 4 or 5, any preliminary prospectus
or final prospectus contained therein, or any amendment or supplement thereof,
or arise out of or are based upon the omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading, and will reimburse each such seller, each
such underwriter and each such controlling person for any legal or other
expenses reasonably incurred by them in connection with investigating or
defending any such loss, claim,
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damage, liability, expense or action; PROVIDED, HOWEVER, that the Company will
not be liable in any such case if and to the extent that any such loss, claim,
damage or liability arises out of or is based upon an untrue statement or
alleged untrue statement or omission or alleged omission so made in conformity
with information furnished by such seller, such underwriter or such controlling
person in writing specifically for use in such registration statement or
prospectus.
In the event of a registration of any of the Restricted Stock
under the Securities Act pursuant to Section 4 or 5 hereof, each seller of such
Restricted Stock thereunder, severally and not jointly, will indemnify and hold
harmless the Company and each person, if any, who controls the Company within
the meaning of the Securities Act, each officer of the Company who signs the
registration statement, each director of the Company, each underwriter and each
person who controls any underwriter within the meaning of the Securities Act,
against all losses, claims, damages, expenses or liabilities, joint or several,
to which the Company or such officer or director or underwriter or controlling
person may become subject under the Securities Act or otherwise, insofar as such
losses, claims, damages, expenses or liabilities (or actions in respect thereof)
arise out of or are based upon any untrue statement or alleged untrue statement
of any material fact contained in the registration statement under which such
Restricted Stock was registered under the Securities Act pursuant to Section 4
or 5, any preliminary prospectus or final prospectus contained therein, or any
amendment or supplement thereof, or arise out of or are based upon the omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, and will
reimburse the Company and each such officer, director, underwriter and
controlling person for any legal or other expenses reasonably incurred by them
in connection with investigating or defending any such loss, claim, damage,
liability or action, and PROVIDED, HOWEVER, that such seller will be liable
hereunder in any such case if and only to the extent that any such loss, claim,
damage or liability arises out of or is based upon an untrue statement or
alleged untrue statement or omission or alleged omission made in reliance upon
and in conformity with information pertaining to such seller, as such, furnished
in writing to the Company by such seller specifically for use in such
registration statement or prospectus; PROVIDED, FURTHER, HOWEVER, that the
liability of each seller hereunder shall be limited to the proportion of any
such loss, claim, damage, liability or expense which is equal to the proportion
that the public offering price of the shares sold by such seller under such
registration statement bears to the total public offering price of all
securities sold thereunder, but not to exceed the proceeds received by such
seller from the sale of Restricted Stock covered by such registration statement.
Promptly after receipt by an indemnified party hereunder of notice of the
commencement of any action, such indemnified party shall, if a claim in respect
thereof is to be made against the indemnifying party hereunder, notify the
indemnifying party in writing thereof, but the omission so to notify the
indemnifying party shall not relieve it from any liability which it may have to
any indemnified party under this Section 8. In case any such action shall be
brought against any indemnified party and it shall notify the indemnifying party
of the commencement thereof, the indemnifying party shall be entitled to
participate in and, to the extent it shall wish, to assume and undertake the
defense thereof with counsel reasonably satisfactory to such indemnified party,
and, after notice from the indemnifying party to such indemnified party of its
election to assume and undertake the defense thereof, the indemnifying party
shall not be liable to such indemnified party under this Section 8 for any legal
expenses subsequently incurred by such indemnified party in connection with the
defense thereof other than reasonable costs of investigation and of liaison with
counsel so selected; PROVIDED, HOWEVER, that,
10
if the defendants in any such action include both the indemnified party and the
indemnifying party and the indemnified party shall have reasonably concluded
that there may be reasonable defenses available to it which are different from
or additional to those available to the indemnifying party or if the interests
of the indemnified party reasonably may be deemed to conflict with the interests
of the indemnifying party, the indemnified party shall have the right to select
a separate counsel and to assume such legal defenses and otherwise to
participate in the defense of such action, with the expenses and fees of such
separate counsel and other expenses related to such participation to be
reimbursed by the indemnifying party as incurred.
Notwithstanding the foregoing, any indemnified party shall
have the right to retain its own counsel in any such action, but the fees and
disbursements of such counsel shall be at the expense of such indemnified party
unless (i) the indemnifying party shall have failed to retain counsel for the
indemnified person as aforesaid or (ii) the indemnifying party and such
indemnified party shall have mutually agreed to the retention of such counsel.
It is understood that the indemnifying party shall not, in connection with any
action or related actions in the same jurisdiction, be liable for the fees and
disbursements of more than one separate firm qualified in such jurisdiction to
act as counsel for the indemnified party. The indemnifying party shall not be
liable for any settlement of any proceeding effected without its written
consent, but if settled with such consent or if there be a final judgment for
the plaintiff, the indemnifying party agrees to indemnify the indemnified party
from and against any loss or liability by reason of such settlement or judgment.
If the indemnification provided for in the first two paragraphs of this Section
8 is unavailable to or insufficient to hold harmless an indemnified party under
such paragraphs in respect of any losses, claims, damages or liabilities or
actions in respect thereof referred to therein, then each indemnifying party
shall in lieu of indemnifying such indemnified party contribute to the amount
paid or payable by such indemnified party as a result of such losses, claims,
damages, liabilities or actions in such proportion as appropriate to reflect the
relative fault of the Company, on the one hand, and the sellers of such
Restricted Stock, on the other, in connection with the statement or omissions
which resulted in such losses, claims, damages, liabilities or actions, as well
as any other relevant equitable considerations including the failure to give any
notice under the third paragraph of this Section 8. The relative fault shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by the Company, on the one hand,
or by the sellers of such Restricted Stock, on the other, and to the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission.
The Company and the sellers of Restricted Stock agree that it
would not be just and equitable if contribution pursuant to this Section 8 were
determined by PRO RATA allocation (even if all of the sellers of Restricted
Stock were treated as one entity for such purpose) or by any other method of
allocation which 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, liabilities or
action in respect thereof, 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.
Notwithstanding the provisions of this and the immediately preceding paragraph,
the sellers of such Restricted Stock shall not be required to contribute any
11
amount in excess of the amount, if any, by which the total price at which the
Common Stock sold by each of them was offered to the public exceeds the amount
of any damages which they would have otherwise been required to pay by reason of
such untrue or alleged untrue statement of omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who is not
guilty of such fraudulent misrepresentation. The indemnification of underwriters
provided for in this Section 8 shall be on such other terms and conditions as
are at the time customary and reasonably required by such underwriters. In that
event the indemnification of the sellers of Restricted Stock in such
underwriting shall at the sellers' request be modified to conform to such terms
and conditions.
SECTION 9. CHANGES IN COMMON STOCK. If, and as often as, there
are any changes in the Common Stock by way of stock split, stock dividend,
combination or reclassification, or through merger, consolidation,
reorganization or recapitalization, or by any other means, appropriate
adjustment shall be made in the provisions hereof, as may be required, so that
the rights and privileges granted hereby shall continue with respect to the
Common Stock as so changed.
SECTION 10. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The
Company represents and warrants to the other parties hereto as follows (which
representations and warranties shall survive the execution and delivery of this
Agreement):
(a) The execution, delivery and performance of this Agreement
by the Company have been duly authorized by all requisite corporate action and
will not violate any provision of law, any order of any court or other agency of
government, the Certificate of Incorporation or By-laws of the Company, or any
provision of any indenture, agreement or other instrument to which it or any of
its properties or assets is bound, or conflict with, result in a breach of or
constitute (with due notice or lapse of time or both) a default under any such
indenture, agreement or other instrument, result in the creation or imposition
of any lien, charge or encumbrance of any nature whatsoever upon any of the
properties or assets of the Company.
(b) This Agreement has been duly executed and delivered by the
Company and constitutes the legal, valid and binding obligation of the Company,
enforceable in accordance with its terms.
SECTION 11. RULE 144 REPORTING. The Company agrees as follows:
(a) The Company shall make and keep public information
available as those terms are understood and defined in Rule 144 under the
Securities Act, at all times from and after 90 days following the effective date
of the first registration of the Company under the Securities Act of an offering
of its securities to the general public.
(b) The Company shall file with the Commission in a timely
manner all reports and other documents as the Commission may prescribe under
Section 13(a) or 15(d) of the Exchange Act at any time after the Company has
become subject to such reporting requirements of the Exchange Act.
12
(c) The Company shall furnish to such holder of Restricted
Stock forthwith upon request (i) a written statement by the Company as to its
compliance with the reporting requirements of Rule 144 (at any time from and
after 90 days following the effective date of the first registration statement
of the Company for an offering of its securities to the general public), and of
the Securities Act and the Exchange Act (at any time after it has become subject
to such reporting requirements), (ii) a copy of the most recent annual or
quarterly report of the Company, and (iii) such other reports and documents so
filed as a holder may reasonably request to avail itself of any rule or
regulation of the Commission allowing a holder of Restricted Stock to sell any
such securities without registration.
SECTION 12. MISCELLANEOUS.
(a) The rights arising under Sections 4 and 5 shall terminate
when (i) all of the Investors are no longer "affiliates" as used in Rule 144 and
(ii) the Investors are permitted to sell all Restricted Stock then held by them
pursuant to Rule 144(k).
(b) All covenants and agreements contained in this Agreement
by or on behalf of any of the parties hereto shall bind and inure to the benefit
of the respective successors and assigns of the parties hereto whether so
expressed or not. Without limiting the generality of the foregoing, the
registration rights conferred herein on the holders of Restricted Stock shall
inure to the benefit of any and all subsequent holders from time to time of the
Restricted Stock for so long as the certificates representing the Restricted
Stock shall be required to bear the legend specified in Section 2 hereof.
(c) All notices, requests and other communications to be given
or otherwise made to any Stockholder or other party hereto shall be deemed to be
sufficient if contained in a written instrument duly transmitted by telecopy or
telex or duly sent by overnight courier service or first class registered or
certified mail, postage prepaid, addressed to such party at the address set
forth below or at such other address as may hereafter be designated in writing
by the addressee to the address or listing all parties:
(a) if to the Company:
Integrated Defense Technologies, Inc.
x/x Xxx Xxxxxxx Xxxxxxx Xxxx, X.X.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopier No.: (000) 000-0000
Attention: Xx. Xxxxxx X. XxXxxx and
Xx. Xxxxxx X. Xxxxxxxx
13
with a copy to:
Winston & Xxxxxx
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopier: (000) 000-0000
Attention: Xxxxxxxx X. Xxxx, Esq.
(b) if to WMF:
X. X. Xxxxxxx Mezzanine Fund, L.P.
000 Xxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Telecopier No.: (000) 000-0000
Attention: Xx. Xxxxxx X. X'Xxxxx
Xx. Xxxxx X. Xxxxxx
Mr. Xxxxxxx Xxxxxxxxx
with a copy to:
Xxxxxxxx Xxxxx Singer & Xxxxxxxxx, LLP
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopier No.: (000) 000-0000
Attention: Xxxxxx X. Xxxxxxxx, Esq.
(c) if to WMVF:
X. X. Xxxxxxx Market Value Fund, L.P.
000 Xxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Telecopier No.: (000) 000-0000
Attention: Xx. Xxxxxx X. X'Xxxxx
Xx. Xxxxx X. Xxxxxx
Xx. Xxxx Xxxxxx
with a copy to:
Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopier No.: (000) 000-0000
Attention: Xxxx Xxxxxxxx, Esq.
14
(d) if to XxxxxXxxx:
XxxxxXxxx Capital, L.P.177 Xxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Telecopier No.: (000) 000-0000
Attention: Xx. Xxxxxx X. X'Xxxxx
Xx. Xxxxx X. Xxxxxx
Xx. Xxxxx Xxxxxxx
with a copy to:
Xxxxxxxx Xxxxx Singer & Xxxxxxxxx, LLP
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopier No.: (000) 000-0000
Attention: Xxxxxx X. Xxxxxxxx, Esq.
Xxxx Xxxx, Esq.
(e) if to First Union
First Union Investors, Inc.
000 X. Xxxxxxx Xxxxxx, 0xx Xxxxx
Xxxxxxxxx, XX 00000
Telecopier No.: (000) 000-0000
Attention: Xxxx Xxxxxxxxx
with a copy to:
Xxxxx & Xxx Xxxxx, PLLC
000 X. Xxxxx Xx., 00xx Xxxxx
Xxxxxxxxx, XX 00000
Telecopier No.: (000) 000-0000
Attention: Xxxx X. Xxxxxxxxxx, Esq.
(f) if to Bank of New York:
BNY Capital Partners, L.P.
Xxx Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopier No. (000) 000-0000
Attention: Xxxx X. Xxxxxxxx
00
with a copy to:
X'Xxxxxxxx Graev & Karabell
00 Xxxxxxxxxxx Xxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopier No.: (000) 000-0000
Attention: Xxxxxxx X. Xxxxx, Esq.
or to such other address or addresses as shall have been furnished in writing to
the other parties hereto. Each holder of Restricted Securities agrees, at all
times, to provide the Company with an address for notices hereunder.
All notices hereunder shall be effective on the date of
transmission if transmitted by telex or telecopy, on the first day after
delivery to an overnight national courier service if sent by such service and on
the date of receipt if sent by mail.
(d) This Agreement shall be governed by and construed in
accordance with the laws of the State of New York.
(e) (I) EACH PARTY TO THIS AGREEMENT HEREBY IRREVOCABLY AGREES
THAT THE ANY LEGAL ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS
AGREEMENT OR TRANSACTIONS CONTEMPLATED HEREBY MAY BE BROUGHT IN THE COURTS OF
THE STATE OF NEW YORK OR OF THE UNITED STATES OF AMERICA FOR THE SOUTHERN
DISTRICT OF NEW YORK AND HEREBY EXPRESSLY SUBMITS TO THE PERSONAL JURISDICTION
AND VENUE OF SUCH COURTS FOR THE PURPOSES THEREOF AND EXPRESSLY WAIVES ANY CLAIM
OF IMPROPER VENUE AND ANY CLAIM THAT THE SUCH COURTS ARE AN INCONVENIENT FORUM.
EACH PARTY HEREBY IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS OF ANY OF THE
AFOREMENTIONED COURTS IN ANY SUCH SUIT, ACTION OR PROCEEDING BY THE MAILING OF
COPIES THEREOF BY REGISTERED OR CERTIFIED MAIL, POSTAGE PREPAID, TO ITS ADDRESS
SET FORTH IN SECTION 12(C) SUCH SERVICE TO BECOME EFFECTIVE 10 DAYS AFTER SUCH
MAILING.
(II) THE COMPANY WAIVES ITS RIGHT TO A JURY TRIAL WITH RESPECT
TO ANY ACTION OR CLAIM ARISING OUT OF ANY DISPUTE IN CONNECTION WITH THIS
AGREEMENT, ANY RIGHTS OR OBLIGATIONS HEREUNDER OR THE PERFORMANCE OF SUCH RIGHTS
AND OBLIGATIONS. EXCEPT AS PROHIBITED BY LAW, THE COMPANY HEREBY WAIVES ANY
RIGHT IT MAY HAVE TO CLAIM OR RECOVER IN ANY LITIGATION REFERRED TO IN THE
PRECEDING SENTENCE ANY SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES OR
ANY DAMAGES OTHER THAN, OR IN ADDITION TO, ACTUAL DAMAGES. THE COMPANY (X)
CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF AN INVESTOR HAS
REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH INVESTOR WOULD NOT, IN
16
THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVERS AND (Y)
ACKNOWLEDGES THAT THE INVESTORS HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT
BY, AMONG OTHER THINGS, THE WAIVERS AND CERTIFICATIONS CONTAINED HEREIN.
(f) This Agreement constitutes the entire agreement of the
parties with respect to the subject matter hereof and may not be modified or
amended except in writing signed by the Company and the Threshold Amount of
Investors.
(g) Telefacsimile transmissions of any executed original
document and/or retransmission of any executed telefacsimile transmission shall
be deemed to be the same as the delivery of an executed original. At the request
of any party hereto, the other parties hereto shall confirm telefacsimile
transmissions by executing duplicate original documents and delivering the same
to the requesting party or parties. 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 an original and all of which taken
together shall constitute one and the same agreement.
[INTENTIONALLY LEFT BLANK]
17
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement on the date first above written.
INTEGRATED DEFENSE
TECHNOLOGIES, INC.
By: /s/ Xxxxxx X. Xxxxxx
-------------------------------------
Name: Xxxxxx X. XxXxxx
Title: Chairman
X.X. XXXXXXX MEZZANINE FUND, L.P.
By: Xxxxxxx XX, LLC,
Its General Partner
By: /s/ Xxxxx X. Xxxxxxx
-------------------------------------
Name: Xxxxx X. Xxxxxxx
A Managing Member
X. X. XXXXXXX MARKET VALUE FUND, L.P.
By: Whitney Market Value GP, LLC,
Its General Partner
By: /s/
-------------------------------------
Name:
A Managing Member
XXXXXXXXX CAPITAL, L.P.
By: XxxxxXxxx XX, L.L.C.,
Its General Partner
By: /s/
-------------------------------------
Name:
Managing Member
[SIGNATURE PAGE TO REGISTRATION RIGHTS AGREEMENT (CONT'D ON NEXT PAGE)]
FIRST UNION INVESTORS, INC.
By: /s/ Xxxx Xxxxxxxxx
-------------------------------------
Name: Xxxx Xxxxxxxxx
Title: Senior Vice President
BNY CAPITAL PARTNERS, L.P.
By: BNY Capital Management LLC,
its General Partner
By: BNY Mezzanine Capital, L.P., its
sole member
By: BNY Capital SBIC, LLC, its
General Partner
By: /s/ Xxxx X. Echausee
-------------------------------------
Name:
Title:
[SIGNATURE PAGE TO REGISTRATION RIGHTS AGREEMENT]
