EXHIBIT 4.1
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement "Agreement") is made and entered
into as of April 24, 2001, by and between Endwave Corporation, a Delaware
corporation (the "Company") and M/A-Com Tech, Inc., a Nevada corporation (the
"Seller").
Recitals
A. The Company and the Seller have entered into that certain Asset
Purchase Agreement dated as of the date hereof (the "Purchase Agreement"),
pursuant to which the Seller will sell to the Company certain assets used
exclusively in the Seller's broadband wireless access business, and Tyco
Electronics Logistics AG (the "IP Seller") will sell to the company certain
intellectual property assets related thereto (the "Acquired Assets").
Capitalized terms used in this Agreement and not otherwise defined shall have
the meanings given to them in the Purchase Agreement.
B. In consideration for the sale of the Acquired Assets to the
Company by the Seller, the Company has agreed to provide the Seller with certain
registration rights as to the shares of the Company's common stock acquired by
the Seller pursuant to the Purchase Agreement as more fully described herein.
Agreement
The parties, intending to be legally bound, agree as follows:
SECTION 1. Registration
1.1 Registrable Shares. As used in this Agreement, "Registrable
Shares" means the shares of the Company's Common Stock issued to the Seller
pursuant to the Purchase Agreement and any shares of the Company's Common Stock
issued in respect thereof as a result of any stock split, stock dividend, share
exchange, merger, consolidation or similar recapitalization taking place after
the Effective Date (as defined in the Purchase Agreement); provided, however,
that Registrable Shares shall cease to be Registrable Shares when (i) a
registration statement covering such Registrable Shares on Form S-3 shall have
become effective under the Securities Act of 1933, as amended (the "1933 Act"),
and such Registrable Shares shall have been disposed of in accordance with the
Registration Statement, or (ii) such Registrable Shares may be transferred
without restriction pursuant to paragraph (k) of Rule 144 under the 1933 Act, as
such rule may be amended from time to time, or any successor rule or regulation
("Rule 144"). In the event the Seller should wish to sell shares pursuant to
Rule 144 (other than pursuant to paragraph (k) thereof), the Seller shall
provide any representation letters relating to such sale in usual and customary
form as may be reasonably requested by the Company's counsel in order for the
Company's counsel to render an opinion relating to such sale, as the case may
be.
1.2 Registration.
(a) On October 17, 2001, barring any events or circumstances
beyond the reasonable control of the Company, and in no event later than
November 17, 2001, the Company
1.
shall have previously prepared and shall file with the Securities and Exchange
Commission ("SEC") a registration statement on Form S-3 (the "Registration
Statement") covering the resale of the Registrable Shares. The Company shall
provide the Seller with a reasonable opportunity to review and approve the
Registration Statement prior to filing. The Company shall use its best efforts
to cause the Registration Statement to be declared effective as soon as
practicable after filing. The date the Registration Statement shall be declared
effective by the SEC is referred to herein as the Effective Date.
(b) The Seller shall furnish such information as the Company may
reasonably request in connection with the preparation of the Registration
Statement. Upon the effectiveness of the Registration Statement with the SEC,
pursuant to the terms of this Agreement, the Registrable Shares may be sold in
accordance with the Registration Statement under the 1933 Act. Subject to the
terms of this Agreement, the Company shall use commercially reasonable efforts
to cause the Registration Statement to remain effective until the earlier of (i)
the date on which all Registrable Shares covered by the Registration Statement
have been sold to the public pursuant to the Registration Statement or (ii)
eighteen months after the Effective Date, plus the amount of time, if any, that
the Registration Statement may be suspended pursuant to Section 4.
SECTION 2. The Company's Obligations
In connection with the Registration Statement referred to in Section 1.2,
the Company shall:
2.1 Registration Statement. Prepare and file with the SEC the Registration
Statement with respect to the Registrable Shares and thereafter use commercially
reasonable efforts to cause the Registration Statement to become and remain
effective for the period set forth in Section 1.2.
2.2 Amendments and Supplements. Prepare and file with the SEC such
amendments and supplements to the Registration Statement and the prospectus used
in connection therewith as may be necessary to keep the Registration Statement
effective for the period set forth in Section 1.2 and to comply with the
provisions of the 1933 Act with respect to the sale or other disposition of the
shares of the Company's Common Stock covered by the Registration Statement.
2.3 Copies of Offering Documents. Furnish to the Seller such number of
copies of the Registration Statement, prospectus, and any amendments and
supplements thereto, in conformity with the requirements of the 1933 Act, such
documents incorporated by reference in the Registration Statement and such other
documents as the Seller may reasonably request, in order to facilitate the
public sale or other disposition of the Registrable Shares.
2.4 Misleading Prospectus. Promptly notify the Seller, at any time when a
prospectus covered by the Registration Statement is required to be delivered
under the 1933 Act, upon the Company's becoming aware that the prospectus
included in the Registration Statement, as then in effect, includes an untrue
statement of a material fact or omits to state a material fact required to be
stated therein or necessary to make the statements therein not misleading in the
light of the circumstances then existing, and immediately thereafter use
reasonable efforts to
2.
prepare and file with the SEC and furnish to the Seller such number of copies as
the Seller may reasonably request of a supplement to or an amendment of such
prospectus as may be necessary so that, as thereafter delivered to the
purchasers of such Registrable Shares, such prospectus shall not include an
untrue statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein not misleading in
the light of the circumstances under which they are made.
2.5 Blue Sky Filings. Use its reasonable efforts to register and qualify
the securities covered by the Registration Statement under the Blue Sky laws of
such jurisdictions as shall be reasonably requested by the Seller, provided that
the Company shall not be required in connection therewith or as a condition
thereto to qualify to do business or to file a general consent to service of
process in any such states or jurisdictions.
2.6 Listing of Shares with Nasdaq. Register and qualify the securities
covered by the Registration Statement for inclusion for quotation on the Nasdaq
National Market.
2.7 Transfer Agent. Arrange for the Company's transfer agent and registrar
to act as transfer agent and registrar for all Registrable Securities registered
pursuant to the Registration Statement and provide a CUSIP number for all such
Registrable Securities.
SECTION 3. The Seller's Obligations
In connection with the registration statement referred to in Section 1.2,
the Seller shall:
3.1 Other Documents and Information. Complete, execute, acknowledge and/or
deliver such questionnaires, custody agreements, underwriting agreements (if the
registration is underwritten) and other documents, certificates and instruments
as are reasonably required by and customarily provided to the Company or any
underwriter(s) and are otherwise necessary in connection with the registration
and offering. The Seller shall promptly provide to the Company such information
concerning the Seller and its' ownership of the Company's securities, the
intended method of distribution and such other information as may be required by
applicable law, rule or regulation or as may be reasonably requested by the
Company.
3.2 Cessation of Offering. Upon receipt of any notice from the Company of
the happening of any event of the kind described in Section 2.4, immediately
discontinue disposition of the Registrable Shares pursuant to the Registration
Statement covering such shares until the Seller's receipt of the copies of the
supplemented or amended prospectus contemplated by Section 2.4, and, if so
directed by the Company, deliver to the Company all copies of the prospectus
covering such Registrable Shares in the Seller's possession at the time of
receipt of such notice.
3.3 No Preliminary Prospectus. The Seller shall not and shall not permit
any person or entity acting on Seller's behalf (other than an underwriter
selected by the Company or approved by the Company) to offer any Registrable
Shares by means of any preliminary prospectus.
SECTION 4. Limitations
3.
4.1 Other Transactions. The Company shall not be obligated to effect a
registration pursuant to Section 1, or to file any amendment or supplement
thereto, and may suspend the Seller's rights to make sales pursuant to an
effective registration pursuant to Section 1, at any time when the Company, in
the good faith judgment of its Board of Directors, reasonably believes that the
filing thereof at the time requested, or the offering of securities pursuant
thereto, would (i) materially and adversely affect a pending or proposed
acquisition, merger, recapitalization, consolidation, reorganization or similar
transaction, or negotiations, discussions or pending proposals related thereto
or (ii) be seriously detrimental to the Company and its stockholders, in which
event (under clause (i) or (ii) above) the Company may defer filing of a
registration statement (or suspend the Seller's rights to make sales pursuant to
an effective registration pursuant to Section 1) for a period of not more than
60 days; provided, however, that the Company shall not utilize the right
described in this Section 4.1 more than twice in any 12-month period.
SECTION 5. Expenses and Indemnification
5.1 Certain Fees and Commissions. The Company shall pay its own legal and
accounting fees and all printing fees in connection with the Registration
Statement; and the reasonable fees and expenses of outside counsel to the Seller
in connection with the Registration Statement. The Seller shall be responsible
for payment of any and all underwriting discounts and commissions of
underwriters or brokers incurred in connection with the offering and sale of the
Registrable Shares, as the case may be.
5.2 Other Expenses. The Company shall pay all registration and filing fees
attributable to the Registrable Shares and the listing fee payable to the Nasdaq
National Market.
5.3 Indemnification. To the extent Registrable Shares are included in a
registration statement under Section 1:
(a) Indemnification by the Company. To the extent permitted by law,
the Company will indemnify and hold harmless the Seller and its affiliates,
successors and assigns, any underwriter (as defined in the 0000 Xxx) for the
Seller, and each person, if any, who controls the Seller or such underwriter
within the meaning of the 1933 Act or the Securities Exchange Act of 1934 (the
"1934 Act"), against any losses, claims, damages, liabilities or actions to
which they may become subject under the 1933 Act, the 1934 Act or other federal
or state law, arising out of or based upon any untrue statement or alleged
untrue statement of a material fact contained in the Registration Statement,
including any preliminary prospectus (to the extent not prohibited by Section
3.3) or final prospectus contained therein or any amendments or supplements
thereto, or arising out of or 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, in the context in which made, not misleading; and the
Company will reimburse the Seller and its affiliates, successors and assigns,
underwriter or 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; provided, however, that the indemnification
and other rights provided for in this Section 5.3(a) for the Seller shall not
apply (i) to any such loss, claim, damage, liability, or action to the extent
that it arises out of or is based upon an untrue statement or alleged untrue
statement or omission or alleged omission made in the Registration Statement,
preliminary
4.
prospectus or final prospectus or any amendment or supplement thereto, in
reliance upon and in conformity with information furnished for use in connection
with such registration by the Seller or (ii) if the person asserting any such
loss, claim, damage, liability or action who purchased the Registrable Shares
which are the subject thereof did not receive a copy of an amended preliminary
prospectus or the final prospectus (or the final prospectus as amended or
supplemented) at or prior to the written confirmation of the sale of such
Registrable Shares to such person because of the failure of the Seller to so
provide such amended preliminary or final prospectus and the untrue statement or
alleged untrue statement or omission or alleged omission of a material fact made
in such preliminary prospectus was corrected in the amended preliminary
prospectus or the final prospectus (or the final prospectus as amended and
supplemented). Such indemnity shall remain in full force and effect regardless
of any investigation made by or on behalf of the Seller, underwriter or
controlling person and shall survive the transfer of the Registrable Shares by
the Seller.
(b) Indemnification by the Seller. To the extent permitted by law,
the Seller will indemnify and hold harmless the Company, its successors and
assigns, its officers and directors, any underwriter (as defined in the 0000
Xxx) with respect to the Registrable Shares, and each person, if any, who
controls the Company or any such underwriter within the meaning of the 1933 Act
or the 1934 Act, against any losses, claims, damages, liabilities or actions
(joint or several) to which they may become subject under the 1933 Act, the 1934
Act or other federal or state law, arising out of or based upon (i) any untrue
statement or alleged untrue statement of a material fact contained in the
Registration Statement, including any preliminary prospectus or final prospectus
contained therein or any amendments or supplements thereto, or arising out of or
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, in
the context in which made, not misleading; provided that such untrue statement
or alleged untrue statement or omission or alleged omission was made in reliance
upon and in conformity with information furnished by the Seller for use in such
registration by the Seller, or (ii) the failure of the Seller at or prior to the
written confirmation of the sale of Registrable Shares to send or arrange
delivery of a copy of an amended preliminary prospectus or the final prospectus
(or the final prospectus as amended or supplemented) to the person asserting any
such loss, claim, damage, liability or action who purchased the Registrable
Shares which is the subject thereof and the untrue statement or alleged untrue
statement or omission or alleged omission of a material fact made in such
preliminary prospectus was corrected in the amended preliminary prospectus or
the final prospectus (or the final prospectus as amended and supplemented). The
Seller will reimburse the Company and each such officer or director or
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. Such indemnity shall remain in full force and effect
regardless of any investigation made by or on behalf of the Company or any such
officer, director, underwriter or controlling person and shall survive the
transfer of the Registrable Shares by the Seller.
5.4 Indemnification Procedures. Promptly after receipt by a person who may
be entitled to indemnification under Section 5 (an "indemnified party") of
notice of the commencement of any action (including any governmental action) for
which indemnification may be available under Section 5, such indemnified party
will, if a claim in respect thereof is to be made against any person who must
provide indemnification under Section 5 (an "indemnifying party"), deliver to
the indemnifying party a written notice of the commencement
5.
thereof, and the indemnifying party shall have the right to participate in and,
to the extent the indemnifying party so desires, jointly with any other
indemnifying party similarly notified, to assume the defense thereof with
counsel mutually satisfactory to the parties; provided, however, that an
indemnified party shall have the right to retain its own counsel (and the
reasonable fees of such counsel shall be paid by the indemnifying party) and
assume its own defense if (i) the retention of such counsel has been
specifically authorized in writing by the indemnifying party, (ii) the
indemnifying party has failed to promptly assume the defense and employ
experienced counsel reasonably acceptable to the indemnified party after the
indemnifying party has received the notice of the indemnification matter from
the indemnified party, or (iii) the named parties to any such action include
both the indemnified party and the indemnifying party, and the representation of
both parties by the same counsel would be inappropriate due to a conflict of
interest between them. It is understood, however, that the indemnifying party
shall not, in connection with any one such action or separate but substantially
similar or related actions in the same jurisdiction, be liable for the
reasonable fees and expenses of more than one separate firm of attorneys for all
indemnified parties unless the indemnified parties in good faith conclude and
are advised by their counsel that there is an actual or potential conflict of
interest among the indemnified parties. No indemnification provided for in
Section 5.3(a) or Section 5.3(b) shall be available to any party who shall fail
to give notice as provided in this Section 5.3(c) to the extent that the party
to whom notice was not given was unaware of the proceeding to which such notice
would have related and was materially prejudiced by the failure to give such
notice.
SECTION 6. Other Provisions
6.1 Governing Law; Venue; Consent to Jurisdiction. This Agreement shall be
governed by and construed in accordance with the laws of the State of California
without regard to conflict of law principles. Any disputes under this Agreement
shall be brought exclusively in the courts of the United States, and,
specifically such federal and state courts located in the States of California
and Florida, and the Company and the Seller consent to and hereby submit to the
personal jurisdiction and venue of these courts.
6.2 Attorneys' Fees. If any action or proceeding relating to this
Agreement or the enforcement of any provision of this Agreement is brought
against any party hereto, the prevailing party shall be entitled to recover
reasonable attorneys' fees, costs and disbursements (in addition to any other
relief to which the prevailing party may be entitled).
6.3 Notices. Any notice or other communication required or permitted to be
delivered to any party under this Agreement shall be in writing and shall be
deemed properly delivered, given and received (a) when delivered (by hand) or
(b) the first business day after sent by registered mail, by courier or express
delivery service or by facsimile, in any case to the address or facsimile
telephone number set forth in Section 6.5 of the Purchase Agreement (or to such
other address or facsimile telephone number as such party shall have specified
in a written notice given to the other parties hereto.
6.4 Headings. The bold-faced headings contained in this Agreement are for
convenience of reference only, shall not be deemed to be a part of this
Agreement and shall not be referred to in connection with the construction or
interpretation of this Agreement.
6.
6.5 Counterparts. This Agreement may be executed in several counterparts,
each of which shall constitute an original and all of which, when taken
together, shall constitute one agreement.
6.6 Successors and Assigns. This Agreement shall be binding upon each of
the parties hereto and each of their respective permitted successors and
assigns, if any. The Seller may not assign the Seller's rights under this
Agreement without the express prior written consent of the Company; provided,
however, that the Seller may freely assign its rights under this Agreement to an
affiliate of the Seller. Nothing in this Agreement is intended to confer, or
shall be deemed to confer, any rights or remedies upon any person or entity
other than the parties hereto and their permitted successors and assigns. This
Agreement shall inure to the benefit of the Seller; the Company; and the
respective successors and assigns, if any, of the foregoing.
6.7 Waiver.
(a) No failure on the part of any Person to exercise any power,
right, privilege or remedy under this Agreement, and no delay on the part of any
Person in exercising any power, right, privilege or remedy under this Agreement,
shall operate as a waiver of such power, right, privilege or remedy; and no
single or partial exercise of any such power, right, privilege or remedy shall
preclude any other or further exercise thereof or of any other power, right,
privilege or remedy.
(b) No Person shall be deemed to have waived any claim arising out of
this Agreement, or any power, right, privilege or remedy under this Agreement,
unless the waiver of such claim, power, right, privilege or remedy is expressly
set forth in a written instrument duly executed and delivered on behalf of such
Person; and any such waiver shall not be applicable or have any effect except in
the specific instance in which it is given.
6.8 Amendments. This Agreement may not be amended, modified, altered or
supplemented other than by means of a written instrument duly executed and
delivered on behalf of each of the Company and the Seller.
6.9 Severability. In the event that any provision of this Agreement, or
the application of any such provision to any Person or set of circumstances,
shall be determined to be invalid, unlawful, void or unenforceable to any
extent, the remainder of this Agreement, and the application of such provision
to Persons or circumstances other than those as to which it is determined to be
invalid, unlawful, void or unenforceable, shall not be impaired or otherwise
affected and shall continue to be valid and enforceable to the fullest extent
permitted by law.
6.10 Parties in Interest. Except for the provisions of Section 5, none of
the provisions of this Agreement is intended to provide any rights or remedies
to any Person other than the parties hereto and their respective affiliates,
successors and assigns, if any, and other persons described herein.
6.11 Entire Agreement. This Agreement and the other agreements referred to
herein set forth the entire understanding of the parties hereto relating to the
subject matter hereof and thereof and supersede all prior agreements and
understandings among or between any of the parties relating to the subject
matter hereof and thereof.
7.
6.12 Construction.
(a) For purposes of this Agreement, whenever the context requires:
the singular number shall include the plural, and vice versa; the masculine
gender shall include the feminine and neuter genders; the feminine gender shall
include the masculine and neuter genders; and the neuter gender shall include
the masculine and feminine genders.
(b) The parties hereto agree that any rule of construction to the
effect that ambiguities are to be resolved against the drafting party shall not
be applied in the construction or interpretation of this Agreement.
(c) As used in this Agreement, the words "include" and "including,"
and variations thereof, shall not be deemed to be terms of limitation, but
rather shall be deemed to be followed by the words "without limitation."
[Signature page to follow]
8.
This Registration Rights Agreement has been executed and delivered as
of the date first stated above.
Endwave Corporation,
A Delaware corporation
By: /s/ Xxxxxx X. Xxxxxx, Xx.
--------------------------------
Title: President and C.E.O.
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M/A-Com Tech, Inc.,
a Nevada corporation
By: /s/ Xxxxx Xxxxxxxxx
--------------------------------
Title: V.P.
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SIGNATURE PAGE TO REGISTRATION RIGHTS AGREEMENT
