Exhibit 4.1
REGISTRATION RIGHTS AND RESALE AGREEMENT
This Registration Rights Agreement (this "Agreement") is entered into
as of April 5, 2002 by and among California Amplifier, Inc., a Delaware
corporation (the "Company"), Xxxx-Tronics, Inc., a Wisconsin corporation
("KTI"), NGP, Inc., a Wisconsin corporation ("NGP", and together with KTI,
the "Initial Investors") and the stockholders of the Initial Investors (the
"Stockholders," and together with the Initial Investors, the "Investors")
all of whose names and addresses are set forth in Schedule 1 attached
hereto, for the express benefit of such Investors.
RECITALS
WHEREAS, pursuant to the terms and conditions of that certain Asset
Purchase Agreement, dated as of April 5, 2002 (the "Asset Purchase
Agreement"), at the Closing (as defined in the Agreement) the Initial
Investors each became holders of shares of the common stock, par value $0.01
per share, of the Company ("Common Stock").
WHEREAS, the Company and the Initial Investors contemplate that each
of the Initial Investors will transfer their respective Shares in the form
of a dividend to their respective Stockholders, after the Closing Date, and
the Company, the Initial Investors and the Stockholders agree to place
certain resale restrictions on future sales of the Shares by the
Stockholders.
WHEREAS, in connection with entering into the Asset Purchase
Agreement, the Company agreed to grant the Stockholders certain registration
rights with respect to the shares of Common Stock distributed to the
Stockholders by the Initial Investors after the Closing (as defined in the
Asset Purchase Agreement) pursuant to the Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing recitals, the mutual
promises hereinafter set forth, and other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the parties
hereby agree as follows:
1. Definitions
The following terms, as used herein, shall have the following
meanings:
"Asset Purchase" means the purchase of the assets of the Initial
Investors by the Company as is contemplated by the Asset Purchase Agreement.
"Closing Date" means the date on which the Closing has occurred.
"Commission" means the Securities and Exchange Commission.
"Exchange Act" means the Securities Exchange Act of 1934, as amended,
and the rules and regulations promulgated thereunder, as they each may, from
time to time, be in effect.
"Registration Statement" means a registration statement filed by the
Company with the Commission for a public offering and sale of Common Stock
(other than a registration statement covering only securities proposed to be
issued in exchange for securities or assets of another person or entity or
in connection with an employee benefit plan).
"Rights Holders" means the Stockholders during such time as they hold
Shares.
"Securities Act" means the Securities Act of 1933, as amended, and the
rules and regulations promulgated thereunder, as they each may, from time to
time, be in effect.
"Shares" means any of the shares of Common Stock received by the
Initial Investors pursuant to the Asset Purchase Agreement in exchange for
certain assets of the Initial Investors.
"S-3 Registration Rights" means the rights of the Rights Holders to
cause the Shares in to be registered on the terms and conditions of this
Agreement pursuant to a Registration Statement on Form S-3 (or any successor
form thereto) under the Securities Act that is filed by the Company as
contemplated in Subsection 2.01(a) of this Agreement.
2. Registration Rights
2.01 The Company will use reasonable commercial efforts to file a
Registration Statement on Form S-3 for the registration under the Securities
Act of sales of the Shares owned by the Stockholders (an "S-3 Registration
Statement") within 150 days after the Closing (the "S-3 Registration
Period"). The S-3 Registration Statement shall, upon becoming effective, be
sufficient to permit the public resale of the Shares by the Stockholders
through the facilities of all applicable securities exchanges on which the
Company's common stock is being traded or on the over-the-counter market.
The Company will, prior to such filing, give written notice to all Rights
Holders of its intention to do so and, the Company shall use reasonable
commercial efforts to cause all Shares to be registered under such S-3
Registration Statement; provided, however, that the Company shall have the
right to postpone or withdraw any registration effected pursuant to this
subsection
2.01 without incurring any liability for doing so to any Rights Holder,
subject to the continuing obligation of the Company to obtain registration
of the Shares as provided in Section 2.02. If any Shares are to be
registered pursuant to this subsection 2.01, then the Company shall provide
notice of such fact to all Rights Holders, and all Rights Holders will then
have the right to register all of their Shares under such S-3 Registration
Statement, as the case may be. The S-3 Registration Rights shall remain in
full force and effect until April 5, 2004.
2.02 The Company shall not be required to effect more than one (1)
registration pursuant to subsection 2.01 above; provided, however, that no
registration statement filed pursuant to Section 2.01 shall count as a
registration statement that satisfies the Company's registration obligations
under Section 2.01, and such obligations shall continue in full force and
effect, if (i) the Registration Statement is not declared effective by the
SEC within 60 days after the date it was originally filed with the SEC, (ii)
the Company fails to maintain the effectiveness of the Registration
Statement for the Applicable Registration Period (as defined below), or
(iii) the Rights Holders elect to terminate the Registration Statement
provided that they agree to pay or reimburse the Company for all
Registration Expenses (as hereinafter defined) of such registration as
contemplated by Section 4 below.
3. Registration Procedures
3.01 If and whenever the Company is required by the provisions of
this Agreement to use its reasonable commercial efforts to effect the
registration under the Securities Act of the distribution by the
Stockholders of the Shares, the Company shall:
(a) as expeditiously as practical prepare and file with the
Commission a Registration Statement with respect to such Shares and, use
reasonable commercial efforts to cause that Registration Statement to become
effective as soon as possible thereafter;
(b) as expeditiously as practicable prepare and file with the
Commission any amendments and supplements to the Registration Statement and
the prospectus included in the Registration Statement as may be necessary to
keep the Registration Statement effective, until the distribution of the
Shares covered thereby and in no event beyond April 5, 2004 ("Applicable
Registration Period");
(c) as expeditiously as practicable furnish to each selling
Rights Holder such reasonable numbers of copies of the prospectus, including
a preliminary prospectus, in conformity with the requirements of the
Securities Act, and such other documents, as the selling Rights Holder may
reasonably request in order to facilitate the public sale or other
disposition of the Shares owned by the selling Rights Holder; and
(d) as expeditiously as reasonably practicable use reasonable
commercial efforts to register or qualify the Shares covered by the
Registration Statement under the securities or Blue Sky laws of such states
as the selling Rights Holders shall reasonably request, and do any and all
other acts and things that may be necessary or desirable to enable the
selling Rights Holders to consummate the public sale or other disposition in
such states of the Shares owned by the selling Rights Holder; provided,
however, that the Company shall not be required in connection with this
subsection 3.01(d) to qualify as a foreign corporation or execute a general
consent to service of process in any jurisdiction.
3.02 If the Company has delivered preliminary or final prospectuses
to the selling Rights Holders and after having done so the prospectus is
amended to comply with the requirements of the Securities Act, the Company
shall promptly notify the selling Rights Holders and, if requested, the
selling Rights Holders shall immediately cease making offers of Shares and
return all prospectuses to the Company. The Company shall promptly but, in
any such event, by no later than the 30th day following the request by the
Company that the Rights Holders cease their sales of shares, provide the
selling Rights Holders with revised prospectuses and, following receipt of
the revised prospectuses, the selling Rights Holders shall be free to resume
making offers of the Shares. In such event, however, at the time the Rights
Holders are permitted to resume making such offers the Applicable
Registration Period shall be extended for a number of days equal to the
period during which the Rights Holders were required to cease selling their
Shares pursuant to this Section 3.02.
3.03 Following the effectiveness of a Registration Statement (and the
making of any required filings with any state securities commissions), the
Company may direct the selling Rights Holders to suspend sales of the
Registrable Securities, as provided herein, if the following event (a
"Suspension Event") occurs:
(a) pending negotiations relating to, or consummation of, a
transaction or the occurrence of an event (a "Material Event Suspension"):
(i) that would require additional disclosure of material
information by the Company in the Registration Statement (or such filings)
the absence of which would make the Registration Statement materially
misleading; and
(ii) as to which the Company has a bona fide business
purpose for preserving confidentiality; or
(iii) which renders the Company unable to comply with
Commission requirements;
in each case under circumstances that would make it impractical or
inadvisable (i) to take any action with respect to the Registration
Statement (or such filings), the effectiveness or continued effectiveness
thereof, or (ii) to promptly amend or supplement the Registration Statement
on a post-effective basis, as applicable; provided, however, that in the
case of a Material Event Suspension under subsection (ii), the duration of
the suspension shall terminate on the earlier of the public announcement of
such Suspension Event and the expiration of thirty (30) days from the
commencement of the suspension and, in the case of a Material Event
Suspension under subsections (i) or (iii), the Company shall use its best
efforts to cause the duration of the suspension to terminate as soon as
reasonably practicable.
If, despite the exercise of its reasonable commercial efforts, the
Company is not able to include all of such Shares in such registered public
offering, as contemplated by clause (x) above, or in case of any Material
Event Suspension, then, at the election of the holders of a majority of the
Shares included in the suspended Registration Statement, (A) the duration of
the applicable time period of the suspended Registration Statement shall be
extended for a period of time equal to the duration of the suspension or (B)
such Rights Holders shall terminate their participation in the suspended
Registration Statement, in which case that Registration Statement shall not
count as a Registration Statement for purposes of Section 2 of this
Agreement, such Rights Holders shall not be responsible for paying or
reimbursing the Company for any of the Registration Expenses incurred with
respect to such suspended Registration Statement.
3.04 In the case of a Suspension Event, the Company shall give
written notice (a "Suspension Notice") to the selling Rights Holders to
suspend sales of the Shares so that the Company may correct or update the
Registration Statement (or such filings); provided, however, that such
suspension shall continue no longer than the applicable period of time set
forth in Section 3.03 above. The selling Rights Holders agree that they
will not effect any sales of the Shares pursuant to such Registration
Statement (or such filings) at any time during the period from the date they
received a Suspension Notice from the Company to such date as of which the
suspension period shall expire as provided in clauses (y) and (z) of Section
3.03 above. If so directed by the Company, selling Rights Holders will
deliver to the Company all copies of the prospectus covering the Shares held
by them at the time of receipt of the Suspension Notice. The selling Rights
Holders may recommence effecting sales of the Shares pursuant to the
Registration Statement (or such filings) following further written notice to
such effect (an "End of Suspension Notice") from the Company, which End of
Suspension Notice shall be accompanied by copies of the supplemented or
amended prospectus necessary to resume such sales; provided, however, that
such End of Suspension Notice shall be delivered, in the case of a Material
Event Suspension, at the applicable date set forth in Section 3.03.
4. Allocation Of Expenses
The Company will pay all Registration Expenses of any registration
under this Agreement; provided, however, that, if a registration is
withdrawn at the request of the Rights Holders requesting such registration
and if the Rights Holders elect not to have such registration counted as a
registration requested under Section 2, the Rights Holders shall pay the
Registration Expenses of such registration pro rata in accordance with the
number of their Shares included in such registration. For purposes of this
Section 4, the term "Registration Expenses" shall mean all expenses incurred
by the Company in complying with this Agreement, including, without
limitation, all registration and filing fees, exchange listing fees,
printing expenses, fees and expenses of counsel for the Company and the
reasonable fees and expenses of one counsel selected by the selling Rights
Holders to represent the selling Rights Holders, state Blue Sky fees and
expenses, and the expense of any special audits incidental to or required by
any such registration, but excluding selling commissions and the fees and
expenses of any selling Rights Holder's own counsel, or other out-of-pocket
expenses of the Rights Holders or their agents.
5. Indemnification And Contribution
5.01 In the event of any registration under the Securities Act of any
Shares pursuant to this Agreement, the Company will indemnify and hold
harmless the selling Rights Holder, and each other person, if any, who
controls such seller within the meaning of the Securities Act or the
Exchange Act against any losses, claims, damages or liabilities, joint or
several, to which such seller or controlling person may become subject under
the Securities Act, the Exchange Act, state securities or Blue Sky laws 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 Shares were registered under the
Securities Act, any preliminary prospectus or final prospectus contained in
the Registration Statement, or any amendment or supplement to such
Registration Statement, or arise out of or are based upon the omission or
alleged omission to state a material fact required to be stated therein or
necessary to make the statements therein not misleading; and the Company
will reimburse such seller, underwriter and each such controlling person for
any legal or any other expenses reasonably incurred by such seller,
underwriter or controlling person in connection with investigating or
defending any such loss, claim, damage, liability or action as and when
incurred by them; provided, however, that the Company will not be liable in
any such case to the extent that any such loss, claim, damage or liability
arises out of or is based upon any untrue statement or omission made in such
Registration Statement, preliminary prospectus or final prospectus, or any
such amendment or supplement, in reliance upon and in conformity with
information furnished to the Company, in writing, by or on behalf of such
seller, underwriter or controlling person specifically for use in the
preparation thereof.
5.02 In the event of any registration under the Securities Act of any
of the Shares pursuant to this Agreement, each selling Rights Holder,
jointly and severally, will indemnify and hold harmless the Company, each of
its directors and officers and each person, if any, who controls the
Company, against any losses, claims, damages or liabilities, joint or
several, to which the Company, such directors and officers or controlling
person may become subject under the Securities Act, Exchange Act, state
securities or Blue Sky laws 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 a material
fact contained in any Registration Statement under which such Shares were
registered under the Securities Act, any preliminary prospectus or final
prospectus contained in the Registration Statement, or any amendment or
supplement to the Registration Statement, or arise out of or are based upon
any omission or alleged omission to state a material fact required to be
stated therein or necessary to make the statements therein not misleading,
if the statement or omission was made in reliance upon and in conformity
with information relating to such seller furnished in writing to the Company
by or on behalf of such seller specifically for use in connection with the
preparation of such Registration Statement, prospectus, amendment or
supplement.
5.03 Each party entitled to indemnification under this Section 5
("Indemnified Party") shall give notice to the party required to provide
indemnification ("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, however, 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 be unreasonably withheld); and provided, further, that the failure of
any Indemnified Party to give notice as provided herein shall not relieve
the Indemnifying Party of its obligations under this Section 5 (except to
the extent such failure to give notice has resulted in increased losses,
damages or liabilities for the Indemnifying Party). The Indemnified Party
may participate in such defense at such party's expense and the Indemnified
Party and not the Indemnifying Party shall bear or be responsible for the
expenses thereof, unless:
(a) the Indemnifying Party and the Indemnified Party shall have
mutually agreed to the retention of such counsel, or
(b) the named parties to any such proceeding (including any
impleaded parties) include both the Indemnified Party and the Indemnifying
Party and representation of both parties by the same counsel would be
inappropriate due to actual or potential differing interests between them.
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 of such claim
or litigation, and no Indemnified Party shall consent to entry of any
judgment or settle such claim or litigation without the prior written
consent of the Indemnifying Party, which shall not be unreasonably withheld.
5.04 In order to provide for just and equitable contribution to joint
liability under the Securities Act in any case in which either:
(a) any holder of Shares exercising rights under this
Agreement, or any controlling person of any such holder, makes a claim for
indemnification pursuant to this Section 5 but it is judicially determined
(by the entry of a final judgment or decree by a court of competent
jurisdiction and the expiration of time to appeal or the denial of the last
right of appeal) that such indemnification may not be enforced in such case
notwithstanding the fact that this Section 5 provides for indemnification in
such case; or
(b) contribution under the Securities Act may be required on
the part of any such selling Rights Holder or any such controlling person in
circumstances for which indemnification is provided under this Section 5;
then, in each such case, the Company and such Rights Holder will contribute
to the aggregate losses, claims, damages or liabilities to which they may be
subject (after contribution from others) in such proportions as is
appropriate to reflect the relative fault of the Indemnifying Party and
Indemnified Parties in connection with the actions which resulted in such
losses, claims, damages, liabilities or expenses, as well as any other
relevant equitable considerations; provided, however, that, in any such
case, no person or entity guilty of fraudulent misrepresentation, within the
meaning of Section 11(f) of the Securities Act, shall be entitled to
contribution from any person or entity who is not guilty of such fraudulent
misrepresentation.
6. Information By Rights Holder
Each Rights Holder including Shares in any registration shall furnish
to the Company such information regarding such Rights Holder and the
distribution of such Right Holder's Shares proposed by such Rights Holder as
the Company may reasonably request in writing and as shall be required in
connection with any registration, qualification or compliance referred to in
this Agreement.
7. "Stand-Off" Agreement
For a period of two years after the date hereof, each Initial Investor
agrees not to sell or otherwise transfer, pledge or dispose of any Shares or
other securities of the Company held by such Initial Investor, except if
such sale or transfer is to a Stockholder. Each Stockholder agrees not to
sell publicly or otherwise transfer, pledge or dispose of any Shares
received from the Initial Investors except as provided as follows: (i) each
Stockholder may sell up to 25% of such Stockholder's Shares during the one
year following the date on which the Registration Statement is declared
effective by the SEC (the "First Anniversary"); (ii) each Stockholder may
sell up to an additional 37.5% of such Stockholder's Shares during the
period after the First Anniversary until the date which is 15 months after
the date on which the Registration Statement is declared effective by the
SEC ("Fifteen Month Anniversary"); and (iii) each Stockholder will be able
to sell any of its remaining Shares after the Fifteen Month Anniversary.
8. No Limitations On Subsequent Registration Rights
Nothing contained in this Agreement shall prohibit the Company from
granting to any holder or prospective holder of any securities of the
Company registration rights which would allow such holder or prospective
holder to include securities of the Company in any Registration Statement
filed by the Company.
9. Rule 144 Requirements
The Company agrees to:
(a) comply with the requirements of Rule 144(c) under the Securities
Act with respect to current public information about the Company;
(b) use its reasonable 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) furnish to any holder of Shares upon request:
(i) a written statement by the Company as to its compliance with
the requirements of Rule 144(c) under the Securities Act, and the reporting,
requirements 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 of the Company as such
holder may reasonably request to avail itself of any similar rule or
regulation of the Commission allowing it to sell any such securities without
registration.
10. Termination
All of the Company's obligations to register Shares under this
Agreement shall terminate upon the last to occur of (i) the sale of all
Shares by the Rights Holders thereof pursuant to this Agreement, (ii) the
earliest date as of which all Shares have ceased being Shares or (iii) the
expiration of the Applicable Registration Period.
11. Notices
All notices, requests, demands and other communications called for or
contemplated hereunder shall be in writing and shall be deemed to have been
duly given when delivered to the party to whom addressed or when sent by
telecopy, telegram, telex or wire (if promptly confirmed by registered or
certified mail, return receipt requested, prepaid and addressed) to the
parties, their successors in interest, or their assignees at the following
addresses, or at such other addresses as the parties may designate by
written notice in the manner aforesaid:
If to the Buyer:
California Amplifier, Inc.
000 Xxxxx Xxx Xxxxx
Xxxxxxxxx, Xxxxxxxxxx 00000
Fax: (000) 000-0000
Attention: Xxxx Xxxxx
With copies to:
Xxxxxx, Xxxx & Xxxxxxxx LLP
000 Xxxxx Xxxxx Xxxxxx
Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Fax: (000) 000-0000
Attention: Xxxxx X. Xxxxxxx, Esq.
If to the Sellers:
Xxxx-Tronics, Inc.
0000 Xxxxxxxxxxx Xxxx
Xxxxxxxx Xxxxxx, Xxxxxxxxx 00000
Fax: (000) 000-0000
Attention: Xxxx Xxxx
With copies to:
XxXxxx Xxxx and Xxxxxxx S.C.
0 Xxxx Xxxxxxx Xxxxxx
Xxxxx 000
Xxxxxxx, XX 00000-0000
Fax: (000) 000-0000
Attention: Xxxxxx X. Xxxxx, Esq.
Xxxxxxxx X. Xxxxxxx, Esq.
and, if to an Investor, to its address set forth on Schedule 1 attached
hereto, or to such other address or addresses as may from time to time be
furnished to the Company in writing by such Investor.
Notices provided in accordance with this Section 11 shall be deemed
delivered upon personal delivery or two business days after deposit in the
mail.
12. Entire Agreement
This Agreement embodies the entire agreement and understanding between
the parties hereto with respect to the subject matter hereof and supersedes
all prior agreements and understandings relating to such subject matter.
13. Amendments And Waivers
Any term of this Agreement may be amended and the observance of any
term of this Agreement may be waived (either generally or in a particular
instance and either retroactively or prospectively), only with the written
consent of the Company and the holders of a majority of the Shares;
provided, however, that this Agreement may be amended with the consent of
the holders of less than all but at least a majority of the Shares only in a
manner which affects the rights of all Shares in the same fashion. No
waivers of or exceptions to any term, condition or provision of this
Agreement, in any one or more instances, shall be deemed to be, or construed
as, a further or continuing waiver of any such term, condition or provision.
14. Counterparts
This Agreement may be executed in one or more counterparts, each of
which shall be deemed to be an original, but all of which shall be one and
the same instrument.
15. Severability
The invalidity or unenforceability of any provision of this Agreement
shall not affect the validity or enforceability of any other provision of
this Agreement.
16. Governing Law
This Agreement shall be governed by and construed in accordance with
the internal laws of the State of Delaware without reference to conflict of
laws principles thereof.
17. Section Headings
The heading of each Section, Subsection or other subdivision of this
Agreement is for reference purposes only and shall not limit or control the
meaning thereof.
IN WITNESS WHEREOF, each of the parties has caused this Agreement to
be duly executed on its behalf as of the day and year first above written.
COMPANY:
CALIFORNIA AMPLIFIER, INC.
By: ____________________________
Name: Xxxx X. Xxxxx
Title: President and Chief
Executive Officer
SCHEDULE 1
INVESTORS
Xxxx-Tronics, Inc.,
a Wisconsin corporation
By: /s/ Xxxx X. Xxxx
_________________________________
Name: Xxxx X. Xxxx
Title: President
NGP, Inc.
a Wisconsin corporation
By: /s/ Xxxx X. Xxxx
_________________________________
Name: Xxxx X. Xxxx
Title: President
Interactive Technologies International, LLC,
a Wisconsin limited liability company
By: /s/ Xxxx X. Xxxx
_________________________________
Name: Xxxx X. Xxxx
Title: Manager
/s/ Xxxxx X. Xxxxxxxx
_________________________________
Xxxxx X. Xxxxxxxx
/s/ Xxxxxxxx Xxxxxx
_________________________________
Xxxxxxxx Xxxxxx
/s/ Xxxxxxx X. Xxxxxx
_________________________________
Xxxxxxx X. Xxxxxx
/s/ Xxxxxxx X. Xxxxxx
_________________________________
Xxxxxxx X. Xxxxxx
/s/ Xxxx Xxx Xxxx
_________________________________
Xxxx Xxx Xxxx
/s/ Xxxxxx X. Xxxxxxxx
_________________________________
Xxxxxx X. Xxxxxxxx
/s/ Xxxxxx Xxxxxxx
_________________________________
Xxxxxx Xxxxxxx
/s/ Xxxxx X. Xxxxxx
_________________________________
Xxxxx X. Xxxxxx
/s/ Xxxxxxx X. Xxxxxx
_________________________________
Xxxxxxx X. Xxxxxx
/s/ Xxxxxxx X. Xxxxxxx
_________________________________
Xxxxxxx X. Xxxxxxx
