EXHIBIT 10.1
REGISTRATION RIGHTS AGREEMENT
February 12, 2004
To Each of the Purchasers Named
on the Signature Pages Hereof
Ladies and Gentlemen:
Stetsys US, Inc., a Delaware corporation and Stetsys Pte. Ltd., a
company formed under the laws of Singapore (each a "Seller" and collectively,
the "Sellers") proposes to sell to the Purchasers (as defined herein) upon the
terms set forth in the Stock Purchase Agreement (as defined herein) shares of
the common stock, par value $0.001 per share (the "Securities"), of Radyne
ComStream Inc., a Delaware corporation (the "Company"). As an inducement to the
Purchasers to enter into the Stock Purchase Agreement and in satisfaction of a
condition to the obligations of the Purchasers thereunder, the Company agrees
with each Purchaser for the benefit of holders (as defined herein) from time to
time of the Registrable Securities (as defined herein) as follows:
1. Definitions. (a) Capitalized terms used herein without definition
shall have the meanings ascribed thereto in the Stock Purchase Agreement. As
used in this Agreement, the following defined terms shall have the following
meanings:
"Affiliate" of any specified person means any other person, which,
directly or indirectly, is in control of, is controlled by, or is under common
control with such specified person. For purposes of this definition, control of
a person means the power, direct or indirect, to direct or cause the direction
of the management and policies of such person whether by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Business Day" means each Monday, Tuesday, Wednesday, Thursday and
Friday that is not a day on which banking institutions in New York, New York or
Phoenix, Arizona are authorized or obligated by law or executive order to close.
"Commission" means the United States Securities and Exchange
Commission, or any other federal agency at the time administering the Exchange
Act or the Securities Act, whichever is the relevant statute for the particular
purpose.
"Common Stock" means the Company's common stock, par value $0.001
per share.
"Effectiveness Period" has the meaning assigned thereto in Section
2(b)(i) hereof.
"Effective Time" means the date on which the Commission declares the
Shelf Registration Statement effective or on which the Shelf Registration
Statement otherwise becomes effective.
"Electing Holder" has the meaning assigned thereto in Section
3(a)(ii) hereof.
"Exchange Act" means the United States Securities Exchange Act of
1934, as amended.
"holder" means, when used with respect to any Security, the record
holder of such Security.
"Managing Underwriters" means the investment banker or investment
bankers and manager or managers that shall administer an underwritten offering,
if any, conducted pursuant to Section 6 hereof.
"NASD Rules" means the Rules of the National Association of
Securities Dealers, Inc., as amended from time to time.
"Notice and Questionnaire" means a Notice of Registration Statement
and Selling Securityholder Questionnaire, substantially in the form of Exhibit A
attached hereto, relating to the Securities.
"person" means an individual, partnership, corporation, trust or
unincorporated organization, or a government or agency or political subdivision
thereof.
"Prospectus" means the prospectus (including, without limitation,
any preliminary prospectus, any final prospectus and any prospectus that
discloses information previously omitted from a prospectus filed as part of an
effective registration statement in reliance upon Rule 430A under the Securities
Act) included in the Shelf Registration Statement, as amended or supplemented by
any prospectus supplement with respect to the terms of the offering of any
portion of the Registrable Securities covered by the Shelf Registration
Statement and by all other amendments and supplements to such prospectus,
including all material incorporated by reference in such prospectus and all
documents filed after the date of such prospectus by the Company under the
Exchange Act and incorporated by reference therein.
"Purchasers" means the Purchasers named on the signature pages of
the Stock Purchase Agreement.
"Registrable Securities" means only those Securities which are
actually sold by the Sellers to the Purchasers pursuant to the Stock Purchase
Agreement, and any security issued thereon as a stock dividend, stock split or
recapitalization; provided, however, that a security ceases to be a Registrable
Security when it is no longer a Restricted Security.
"Restricted Security" means any Security except any such Security
that (i) has been registered pursuant to an effective registration statement
under the Securities Act and sold in a manner contemplated by the Shelf
Registration Statement, (ii) has been transferred in
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compliance with Rule 144 under the Securities Act (or any successor provision
thereto) or is transferable pursuant to paragraph (k) of such Rule 144 (or any
successor provision thereto) or (iii) has otherwise been transferred and a new
Security not subject to transfer restrictions under the Securities Act has been
delivered by or on behalf of the Company.
"Rules and Regulations" means the published rules and regulations of
the Commission promulgated under the Securities Act or the Exchange Act, as in
effect at any relevant time.
"Securities Act" means the United States Securities Act of 1933, as
amended.
"Shelf Registration" means a registration effected pursuant to
Section 2 hereof.
"Shelf Registration Statement" means a "shelf" registration
statement filed under the Securities Act providing for the registration of, and
the sale on a continuous or delayed basis by the holders of, all of the
Registrable Securities pursuant to Rule 415 under the Securities Act and/or any
similar rule that may be adopted by the Commission, filed by the Company
pursuant to the provisions of Section 2 of this Agreement, including the
Prospectus contained therein, any amendments and supplements to such
registration statement, including post-effective amendments, and all exhibits
and all material incorporated by reference in such registration statement.
"Stock Purchase Agreement" means the Stock Purchase Agreement, dated
as of the date hereof, by and among the Sellers, the Company and the Purchasers.
"underwriter" means any underwriter of Registrable Securities in
connection with an offering thereof under a Shelf Registration Statement.
2. Shelf Registration. (a) The Company shall, (1) use its reasonable
best efforts to file with the Commission, within 15 days following the filing by
the Company of its Annual Report on Form 10-K for the fiscal year ended December
31, 2003, and in no event later than April 1, 2004, a Shelf Registration
Statement covering the offer and sale of the Registrable Securities (the "Filing
Deadline Date") and (2) use its reasonable best efforts to cause such Shelf
Registration Statement to be declared effective under the Securities Act on or
prior to 90 calendar days, if the Registration Statement is not reviewed by the
Commission, or 105 calendar days, if the Registration Statement is reviewed by
the Commission, in each case after the Closing Date (the "Effectiveness Deadline
Date"); provided, however, that if there is a review, the holders shall in good
faith entertain any request from the Company for a waiver of the 105-day period.
No holder shall be entitled to be named as a selling securityholder in the Shelf
Registration Statement or to use the Prospectus for resales of Registrable
Securities unless such holder is an Electing Holder. The Shelf Registration
Statement shall be on Form S-3 (except if the Company is not then eligible to
register for resale the Registrable Securities on Form S-3, in which case such
registration shall be on another appropriate form for such purpose) and shall
contain (except if otherwise required pursuant to written comments received from
the Commission upon a review of such Shelf Registration Statement) the "Plan of
Distribution" attached hereto as Annex A.
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(b) The Company shall use all reasonable efforts:
(i) to keep the Shelf Registration Statement continuously
effective in order to permit the Prospectus to be usable by holders
for resales of Registrable Securities until the earlier of (A) the
sale under the Shelf Registration Statement of all the Registrable
Securities registered thereunder and (B) all of the Securities
ceasing to be Restricted Securities (such period being referred to
herein as the "Effectiveness Period"); and
(ii) after the Effective Time, promptly upon the request of
any holder of Registrable Securities that is not then an Electing
Holder, to take any action reasonably necessary to enable such
holder to use the Prospectus for resales of Registrable Securities,
including without limitation any action necessary to identify such
holder as a selling securityholder in the Shelf Registration
Statement; provided, however, that nothing in this subparagraph
shall relieve such holder of the obligation to return a completed
and signed Notice and Questionnaire to the Company in accordance
with Section 3(a) hereof.
(c) If (x) such Shelf Registration Statement covering the
Registrable Securities is not filed with the Commission on or prior to the
Filing Deadline Date, (y) such Shelf Registration Statement covering the
Registrable Securities is not declared effective by the Commission on or prior
to the Effectiveness Deadline Date or (z) after the Effective Time, without
regard for the reason thereunder or efforts therefor, such Shelf Registration
Statement ceases for any reason to be effective or any Prospectus thereunder
ceases to be usable with respect to any Registrable Securities to which it is
required to cover at any time prior to the expiration of its Effectiveness
Period for an aggregate of more than 30 trading days (which need not be
consecutive), then, notwithstanding any other provision in this Agreement, in
addition to any other rights available to the holders under the Transaction
Documents or under applicable law, the Company will make pro rata payments to
each Purchaser, as liquidated damages and not as a penalty, an amount equal to
1.0% of the aggregate amount paid by such Purchaser on the Closing Date to the
Sellers for the Sellers Shares ("Deadline Payment"). In addition, the Company
will make pro rata payments to each Purchaser, as liquidated damages and not as
a penalty, an amount per each 30-day period (or pro rata portion thereof if the
period is less than 30 days) after the Deadline Payment equal to 1.0% (i) in the
case of clause (x), for the period from the Filing Deadline Date to the date on
which such Shelf Registration Statement is filed, (ii) in the case of clause
(y), for the period from the Effectiveness Deadline Date to the date on which
such Shelf Registration Statement becomes effective, and (iii) in the case of
clause (z), for any period in excess of such 30 trading days in which such Shelf
Registration Statement ceases to be effective or any Prospectus thereunder
ceases to be usable with respect to any Registrable Securities. No such payments
shall be payable in respect of any securities that are not Registrable
Securities. Such payments shall be made to each Purchaser in immediately
available funds not later than three Business Days following the end of each
30-day period.
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3. Registration Procedures. In connection with the Shelf
Registration Statement, the following provisions shall apply:
(a) Not less than 30 calendar days prior to the Effective Time, the
Company shall mail the Notice and Questionnaire to the holders of
Registrable Securities. No holder shall be entitled to be named as a
selling securityholder in the Shelf Registration Statement as of the
Effective Time, and no holder shall be entitled to use the Prospectus for
resales of Registrable Securities at any time unless such holder has
returned a completed and signed Notice and Questionnaire to the Company by
the deadline for response set forth therein; provided, however, holders of
Registrable Securities shall have at least 20 calendar days from the date
on which the Notice and Questionnaire is first mailed to such holders to
return a completed and signed Notice and Questionnaire to the Company.
(i) After the Effective Time, the Company shall, upon the
request of any holder of Registrable Securities that is not then an
Electing Holder, promptly send a Notice and Questionnaire to such
holder. The Company shall not be required to take any action to name
such holder as a selling securityholder in the Shelf Registration
Statement or to enable such holder to use the Prospectus for resales
of Registrable Securities until such holder has returned a completed
and signed Notice and Questionnaire to the Company.
(ii) The term "Electing Holder" shall mean any holder of
Registrable Securities that has returned a completed and signed
Notice and Questionnaire to the Company in accordance with Section
3(a) hereof.
(b) The Company shall furnish to each Electing Holder and the
Managing Underwriters, if any, no fewer than five Business Days prior to
the initial filing of the Shelf Registration Statement, a copy of such
Shelf Registration Statement, and shall furnish to such holders and the
Managing Underwriters, if any, no fewer than two Business Days prior to
the filing of any amendment or supplement to the Prospectus, a copy of
such amendment or supplement and shall reflect in each such document when
so filed with the Commission such comments as such holders reasonably may
propose; provided, however, that the Company shall make the final decision
as to the form and content of each such document. If any such Shelf
Registration Statement refers to any Electing Holder by name or otherwise
as the holder of any securities of the Company, then such Electing Holder
shall have the right to require (i) the insertion therein of language, in
form and substance reasonably satisfactory to such Electing Holder, to the
effect that the holding by such Electing Holder of such securities is not
to be construed as a recommendation by such Electing Holder of the
investment quality of the Company's securities covered thereby and that
such holding does not imply that such Electing Holder will assist in
meeting any future financial requirements of the Company or (ii) in the
event that such reference to such Electing Holder by name or otherwise is
not required by the Securities Act or any similar Federal statute then in
force, the deletion of the reference to such Electing Holder in any
amendment or supplement to the Registration Statement filed or prepared
subsequent to the time that such reference ceases to be required.
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(c) From the date hereof until the end of the Effective Period, the
Company shall (subject to paragraph (j) below) promptly take such action
as may be necessary so that (i) each of the Shelf Registration Statement
and any amendment thereto and the Prospectus and any amendment or
supplement thereto (and each report or other document incorporated by
reference therein in each case) complies in all material respects with the
Securities Act and the Exchange Act and the respective rules and
regulations thereunder, (ii) each of the Shelf Registration Statement and
any amendment thereto does not, when it becomes effective, contain 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,
in light of the circumstances under which they were made, not misleading
and (iii) each of the Prospectus and any amendment or supplement to the
Prospectus does not at any time during the Effectiveness Period include an
untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
(d) The Company shall promptly advise each Electing Holder, and
shall confirm such advice in writing if so requested by any such holder
(which notice pursuant to clauses (iii) through (v) hereof shall be
accompanied by an instruction to suspend the use of the Prospectus until
the requisite changes have been made):
(i) when the Shelf Registration Statement and any amendment
thereto has been filed with the Commission and when the Shelf
Registration Statement or any post-effective amendment thereto has
become effective;
(ii) when the Commission notifies the Company whether there
will be a "review" of such Shelf Registration Statement and whenever
the Commission comments in writing on such Shelf Registration
Statement (the Company shall provide true and complete copies
thereof and all written responses thereto to each of the holders
that pertain to the holders as a Selling Stockholder or to the Plan
of Distribution, but not information which the Company believes
would constitute material and non-public information);
(iii) of the issuance by the Commission of any stop order
suspending the effectiveness of the Shelf Registration Statement or
the initiation of any proceedings for such purpose;
(iv) of the receipt by the Company of any notification with
respect to the suspension of the qualification of the securities
included in the Shelf Registration Statement for sale in any
jurisdiction or the initiation of any proceeding for such purpose;
and
(v) if changes in the Shelf Registration Statement or the
Prospectus are required in order that the Shelf Registration
Statement and Prospectus do not contain an untrue statement of a
material fact and do not omit to state a material fact required to
be stated therein or necessary to make the statements therein (in
the case of the
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Prospectus, in light of the circumstances under which they were
made) not misleading.
(e) The Company shall use all reasonable best efforts to prevent the
issuance, and if issued to obtain the withdrawal, of any order suspending
the effectiveness of the Shelf Registration Statement at the earliest
possible time.
(f) The Company shall furnish to each requesting Electing Holder,
without charge, at least one copy of the Shelf Registration Statement and
all post-effective amendments thereto, including financial statements and
schedules, and, if such holder so requests in writing, all reports, other
documents and exhibits that are filed with or incorporated by reference in
the Shelf Registration Statement.
(g) The Company shall, during the Effectiveness Period, deliver to
each Electing Holder, without charge, as many copies of the Prospectus
(including each preliminary Prospectus) and any amendment or supplement
thereto as such Electing Holder may reasonably request; and the Company
consents (except during the continuance of any event described in Section
3(d)(iv) above or any pending corporate development described in Sections
3(j) and 6 below) to the use of the Prospectus and any amendment or
supplement thereto by each of the Electing Holders in connection with the
offering and sale of the Registrable Securities covered by the Prospectus
and any amendment or supplement thereto during the Effectiveness Period.
(h) Prior to any offering of Registrable Securities pursuant to the
Shelf Registration Statement, the Company shall (i) register or qualify
the registration or qualification of such Registrable Securities for offer
and sale under the securities or "blue sky" laws of such jurisdictions
within the United States as any Electing Holder may reasonably request,
(ii) keep such registrations or qualifications in effect and comply with
such laws so as to permit the continuance of offers and sales in such
jurisdictions for so long as may be necessary to enable any Electing
Holder or underwriter, if any, to complete its distribution of Registrable
Securities pursuant to the Shelf Registration Statement, and (iii) take
any and all other actions necessary or advisable to enable the disposition
in such jurisdictions of such Registrable Securities; provided, however,
that in no event shall the Company be obligated to qualify as a foreign
corporation or as a dealer in securities in any jurisdiction where it
would not otherwise be required to so qualify but for this Section 3(h).
(i) The Company shall cooperate with the Electing Holders to
facilitate the timely preparation and delivery of certificates
representing Registrable Securities to be sold pursuant to the Shelf
Registration Statement, which certificates shall not bear any restrictive
legends and shall meet the requirements of any securities exchange on
which the Company's Common Stock is then listed and which certificates
shall be in such permitted denominations and registered in such names as
Electing Holders may request in connection with the sale of Registrable
Securities pursuant to the Shelf Registration Statement.
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(j) Upon the occurrence of any fact or event contemplated by
paragraph 3(d)(iv) above, the Company shall (subject to the next sentence)
promptly prepare a post-effective amendment or supplement to the Shelf
Registration Statement or the Prospectus, or any document incorporated
therein by reference, or file any other required document so that, as
thereafter delivered to purchasers of the Registrable Securities included
therein, the Prospectus will not include an untrue statement of a material
fact or omit to state any material fact necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading. If the Company notifies the Electing Holders in accordance
with clauses (ii) through (iv) of paragraph 3(d) above to suspend the use
of the Prospectus until the requisite changes to the Prospectus have been
made, then each Electing Holder shall suspend the use of the Prospectus
until (i) such Electing Holder has received copies of the supplemented or
amended Prospectus contemplated by the preceding sentence or (ii) such
Electing Holder is advised in writing by the Company that the use of the
Prospectus may be resumed and has received copies of any additional or
supplemental filings that are incorporated by reference in the Prospectus.
Notwithstanding the foregoing, the Company shall not be required to amend
or supplement the Shelf Registration Statement, any related Prospectus or
any document incorporated by reference for a period not to exceed 15
consecutive days (or 45 days in the aggregate in any calendar year) if
there occurs or exists any pending corporate development the disclosure of
which would, in the judgment of the Company, be harmful to the business,
operations, prospects, or condition (financial or otherwise) of the
Company and its subsidiaries, taken as a whole.
(k) The Company shall comply with all applicable Rules and
Regulations, and to make generally available to all holders as soon as
practicable, but in any event not later than eighteen months after (i) the
effective date (as defined in Rule 158(c) under the Securities Act) of the
Shelf Registration Statement, (ii) the effective date of each
post-effective amendment to the Shelf Registration Statement, and (iii)
the date of each filing by the Company with the Commission of an Annual
Report on Form 10-K that is incorporated by reference in the Shelf
Registration Statement, an earnings statement of the Company and its
subsidiaries complying with Section 11(a) of the Securities Act and the
Rules and Regulations of the Commission thereunder (including, at the
option of the Company, Rule 158).
(l) In the event of an underwritten offering conducted pursuant to
Section 6 hereof, the Company shall (subject to paragraph 3(j) above), if
requested, promptly include or incorporate in a Prospectus supplement or
post-effective amendment to the Shelf Registration Statement such
information as the Managing Underwriters reasonably agree should be
included therein and to which the Company does not reasonably object and
shall (subject to paragraph 3(j) above) make all required filings of such
Prospectus supplement or post-effective amendment as soon as practicable
after it is notified of the matters to be included or incorporated in such
Prospectus supplement or post-effective amendment.
(m) The Company shall enter into such customary agreements
(including an underwriting agreement in customary form in the event of an
underwritten offering
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conducted pursuant to Section 6 hereof) and take all other appropriate
action in order to expedite and facilitate the registration and
disposition of the Registrable Securities, and in connection therewith, if
an underwriting agreement is entered into, cause the same to contain
indemnification provisions and procedures substantially identical to those
set forth in Section 5 hereof with respect to all parties to be
indemnified pursuant to Section 5 hereof; provided, however, the Company
shall not be required to facilitate an underwritten offering pursuant to
the Shelf Registration Statement by any holders unless the offering
relates to at least 25% of the Securities sold pursuant to the Stock
Purchase Agreement.
(n) The Company shall:
(i) (A) make reasonably available for inspection by requesting
Electing Holders, any underwriter participating in any disposition
pursuant to the Shelf Registration Statement, one accountant and any
other agent retained by such holders or any such underwriter all
relevant financial and other records, pertinent corporate documents
and properties of the Company and its subsidiaries and (B) cause the
Company's officers, directors and employees to supply all
information reasonably requested by such holders or any such
underwriter, accountant or agent in connection with the Shelf
Registration Statement, in each case, as is customary for similar
due diligence examinations; provided, however, that all records,
information and documents that are designated in writing by the
Company, in good faith, as confidential shall be kept confidential
by such holders and any such underwriter, accountant or agent,
unless such disclosure is made in connection with a court proceeding
or required by law, or such records, information or documents become
available to the public generally or through a third party without
an accompanying obligation of confidentiality; and provided, further
that, if the foregoing inspection and information gathering would
otherwise disrupt the Company's conduct of its business, such
inspection and information gathering shall, to the greatest extent
possible, be coordinated on behalf of the requesting Electing
Holders and the other parties entitled thereto by one counsel
designated by and on behalf of Electing Holders and other parties;
(ii) in connection with any underwritten offering conducted
pursuant to Section 6 hereof, make such representations and
warranties to the Electing Holders participating in such
underwritten offering and to the Managing Underwriters, in form,
substance and scope as are customarily made by the Company to
underwriters in primary underwritten offerings of equity securities;
(iii) in connection with any underwritten offering conducted
pursuant to Section 6 hereof, obtain opinions of counsel to the
Company (which counsel and opinions (in form, scope and substance)
shall be reasonably satisfactory to the Managing Underwriters)
addressed to each requesting Electing Holder, covering such matters
as are customarily covered in opinions requested in primary
underwritten offerings of equity securities (it being agreed that
the matters to be covered shall include, without limitation, as of
the date of the opinion and as of the Effective Time
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or the date of the most recent post-effective amendment thereto, as
the case may be, comment of such counsel as to the absence, to such
counsel's knowledge, from the Shelf Registration Statement and the
Prospectus, including the documents incorporated by reference
therein, of an untrue statement of a material fact or the omission
of a material fact required to be stated therein or necessary to
make the statements therein (in the case of the Prospectus, in light
of the circumstances under which they were made,) not misleading;
(iv) in connection with any underwritten offering conducted
pursuant to Section 6 hereof, obtain "cold comfort" letters and
updates thereof from the independent public accountants of the
Company (and, if necessary, from the independent public accountants
of any subsidiary of the Company or of any business acquired by the
Company for which financial statements and financial data are, or
are required to be, included in the Shelf Registration Statement),
addressed to each requesting Electing Holder (if such Electing
Holder has provided such letter, representations or documentation,
if any, required for such cold comfort letter to be so addressed)
and the underwriters, in customary form and covering matters of the
type customarily covered in "cold comfort" letters in connection
with primary underwritten offerings;
(v) in connection with any underwritten offering conducted
pursuant to Section 6 hereof, deliver such documents and
certificates as may be reasonably requested by any Electing Holders
and the Managing Underwriters, if any, including without limitation
certificates to evidence compliance with Section 3(j) hereof and
with any conditions contained in the underwriting agreement or other
agreements entered into by the Company in connection therewith.
(o) The Company will use its reasonable best efforts to cause the
Common Stock to be listed on the Nasdaq National Market or other stock
exchange or trading system, if any, on which the Common Stock primarily
trades on or prior to the Effective Time.
(p) The Company shall use its reasonable best efforts to take all
other steps necessary to effect the registration, offering and sale of the
Registrable Securities covered by the Shelf Registration Statement
contemplated hereby.
(r) On or prior to the Effective Time, the Company shall cause the
transfer agent to remove the restrictive legends on all Registrable
Securities eligible for sale under the Shelf Registration Statement so
that they are freely tradable.
4. Registration Expenses. (a) All fees and expenses incident to the
performance of or compliance with this Agreement by the Company shall be borne
by it whether or not any Shelf Registration Statement is filed or becomes
effective and whether or not any securities are issued or sold pursuant to any
Shelf Registration Statement. The fees and expenses referred to in the foregoing
sentence shall include, without limitation, (i) all registration and filing fees
(including without limitation fees and expenses (A) with respect to filings
required to be made with the National Association of Securities Dealers, Inc.
and (B) in compliance with
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securities or Blue Sky laws), (ii) printing expenses (including without
limitation expenses of printing certificates for Registrable Securities and of
printing Prospectuses if the printing of Prospectuses is requested by the
Managing Underwriters, if any), (iii) messenger, telephone and delivery
expenses, (iv) fees and disbursements of all independent certified public
accountants referred to in Section 3(n)(iv) hereof (including without limitation
the expenses of any special audit and "cold comfort" letters required by or
incident to such performance), (v) Securities Act liability insurance, if the
Company desires such insurance, and (vi) fees and expenses of all other persons
retained by the Company. In addition, the Company shall pay its internal
expenses (including without limitation all salaries and expenses of its officers
and employees performing legal or accounting duties), the expense of any annual
audit, and the fees and expenses incurred in connection with the listing of the
Securities on the Nasdaq National Market. Notwithstanding the foregoing or
anything in this Agreement to the contrary, each holder of the Registrable
Securities being registered shall pay all commissions and underwriting discounts
and commissions with respect to any Registrable Securities sold by it and the
fees and disbursements of any counsel or other advisors or experts retained by
such holders (severally or jointly).
5. Indemnification and Contribution.
(a) Indemnification by the Sellers and the Company. Upon the
registration of the Registrable Securities pursuant to Section 2 hereof, the
Sellers and the Company shall each jointly and severally indemnify and hold
harmless each Electing Holder and each underwriter, selling agent or other
securities professional, if any, which facilitates the disposition of
Registrable Securities, and each of their respective officers and directors and
each person who controls such Electing Holder, underwriter, selling agent or
other securities professional within the meaning of Section 15 of the Securities
Act or Section 20 of the Exchange Act (each such person being sometimes referred
to as an "Indemnified Person") against any losses, claims, damages or
liabilities, joint or several, to which such Indemnified 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 an untrue statement or alleged untrue statement of a material fact
contained in any Shelf Registration Statement or any Prospectus contained
therein or furnished by the Company to any Indemnified Person, or any amendment
or supplement thereto, 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, in light of the circumstances in which
they were made, not misleading, and the Company hereby agrees to reimburse such
Indemnified Person for any legal or other expenses reasonably incurred by them
in connection with investigating or defending any such action or claim as such
expenses are incurred; provided, however, that the Company shall not be liable
to any such Indemnified Person in any such case 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
such Shelf Registration Statement or Prospectus, or amendment or supplement
thereto, in reliance upon and in conformity with written information furnished
to the Company by or on behalf of such Indemnified Person expressly for use
therein; provided, further, however, that the foregoing indemnity agreement with
respect to any Prospectus shall not inure to the benefit of any Indemnified
Person who failed to deliver a final Prospectus or an amendment or supplement
thereto (provided by the Company to the several Indemnified Persons in the
requisite quantity and on a timely basis to permit proper delivery on or prior
to the relevant transaction date) to the
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person asserting any losses, claims, damages and liabilities and judgments
caused by any untrue statement or alleged untrue statement of a material fact
contained in any Prospectus, or caused by any omission or alleged omission to
state therein a material fact required to be stated therein or necessary to make
the statements therein, in light of the circumstances under which they were
made, not misleading, if such material misstatement or omission or alleged
material misstatement or omission was cured in the final Prospectus or an
amendment or supplement thereto. Anything to the contrary notwithstanding, the
foregoing indemnity as to the Sellers shall be limited, in all respects, solely
to actions taken by the Seller, or to information supplied by the Seller in
writing for inclusion in the Registration Statement or Prospectus.
(b) Indemnification by the Holders. Each Electing Holder agrees, as
a consequence of the inclusion of any of such holder's Registrable Securities in
any Shelf Registration Statement, severally and not jointly, to (i) indemnify
and hold harmless the Company, its directors, officers who sign such Shelf
Registration Statement and each person, if any, who controls the Company within
the meaning of either Section 15 of the Securities Act or Section 20 of the
Exchange Act, against any losses, claims, damages or liabilities to which the
Company or such other persons 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 an untrue statement or alleged
untrue statement of a material fact contained in such Shelf Registration
Statement or Prospectus, or any amendment or supplement thereto, 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, in each case to the extent, but only to the extent, that such
untrue statement or alleged untrue statement or omission or alleged omission was
made in reliance upon and in conformity with written information furnished to
the Company by or on behalf of such holder for use therein and (ii) reimburse
the Company and its directors and officers who sign such Shelf Registration
Statement for any legal or other expenses reasonably incurred by the Company and
such directors and officers in connection with investigating or defending any
such action or claim as such expenses are incurred.
(c) Notices of Claims, Etc. Promptly after receipt by an indemnified
party under subsection (a) or (b) of this Section 5 of notice of the
commencement of any action, such indemnified party shall, if a claim in respect
thereof is to be made against an indemnifying party under this Section 5, notify
such indemnifying party in writing of the commencement 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 otherwise than under this Section 5.
In case any such action shall be brought against any indemnified party and it
shall notify an indemnifying party of the commencement thereof, such
indemnifying party shall be entitled to participate therein and, to the extent
that it shall wish, jointly with any other indemnifying party similarly
notified, to assume the defense thereof, with counsel satisfactory to such
indemnified party (who shall not, except with the consent of the indemnified
party, be counsel to the indemnifying party), and, after notice from the
indemnifying party to such indemnified party of its election so to assume the
defense thereof, such indemnifying party shall not be liable to such indemnified
party under this Section 5 for any legal expenses of other counsel or any other
expenses, in each case subsequently incurred by such indemnified party, in
connection with the defense thereof other than reasonable costs of
investigation. No indemnifying party shall, without the written consent
-12-
of the indemnified party, which consent will not be unreasonably withheld,
effect the settlement or compromise of, or consent to the entry of any judgment
with respect to, any pending or threatened action or claim in respect of which
indemnification or contribution may be sought hereunder (whether or not the
indemnified party is an actual or potential party to such action or claim)
unless such settlement, compromise or judgment (i) includes an unconditional
release of the indemnified party from all liability arising out of such action
or claim and (ii) does not include a statement as to, or an admission of, fault,
culpability or a failure to act, by or on behalf of any indemnified party.
(d) Contribution. If the indemnification provided for in this
Section 5 is unavailable to or insufficient to hold harmless an indemnified
party under subsection (a) or (b) of this Section 5 in respect of any losses,
claims, damages or liabilities (or actions in respect thereof) referred to
therein, then each indemnifying party shall contribute to the amount paid or
payable by such indemnified party as a result of such losses, claims, damages or
liabilities (or actions in respect thereof) in such proportion as is appropriate
to reflect the relative fault of the indemnifying party and the indemnified
party in connection with the statements or omissions which resulted in such
losses, claims, damages or liabilities (or actions in respect thereof), as well
as any other relevant equitable considerations. The relative fault of such
indemnifying party and indemnified party shall be determined by reference to,
among other things, whether the untrue or alleged untrue statement of a material
fact or omission or alleged omission to state a material fact relates to
information about such indemnifying party or indemnified party supplied by such
indemnifying party or by such indemnified party, and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission. The parties hereto agree that it would not be just
and equitable if contribution pursuant to this Section 5(d) were determined by
pro rata allocation (even if the Electing Holders or any underwriters, selling
agents or other securities professionals or all of them 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 this Section 5(d).
The amount paid or payable by an indemnified party as a result of the losses,
claims, damages or liabilities (or actions in respect thereof) referred to above
shall be deemed to include any legal or other fees or expenses reasonably
incurred by such indemnified party in connection with investigating or defending
any such action or claim. 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 was not guilty of such fraudulent
misrepresentation. The obligations of the Electing Holders and any underwriters,
selling agents or other securities professionals in this Section 5(d) to
contribute shall be several in proportion to the percentage of Registrable
Securities registered or underwritten, as the case may be, by them and not
joint.
(e) Notwithstanding any other provision of this Section 5, in no
event will any (i) Electing Holder be required to undertake liability to any
person under this Section 5 for any amounts in excess of the dollar amount of
the proceeds to be received by such holder from the sale of such holder's
Registrable Securities (after deducting any fees, discounts and commissions
applicable thereto) pursuant to any Shelf Registration Statement and (ii)
underwriter, selling agent or other securities professional be required to
undertake liability to any person hereunder for any amounts in excess of the
discount, commission or other compensation payable to such
-13-
underwriter, selling agent or other securities professional with respect to the
Registrable Securities underwritten by it and distributed to the public.
(f) The obligations of the Company and Sellers under this Section 5
shall be in addition to any liability that the Company and the Sellers may
otherwise have to any Indemnified Person and the obligations of any Indemnified
Person under this Section 5 shall be in addition to any liability that such
Indemnified Person may otherwise have to the Company. The remedies provided in
this Section 5 are not exclusive and shall not limit any rights or remedies that
may otherwise be available to an indemnified party at law or in equity.
6. Underwritten Offering. Any holder of Registrable Securities who
desires to do so may sell Registrable Securities (in whole or in part) in an
underwritten offering; provided, however, the Company shall not be required to
facilitate an underwritten offering pursuant to the Shelf Registration Statement
by any holders unless the offering relates to at least 25% of the Securities
sold pursuant to the Stock Purchase Agreement. In any such underwritten
offering, the investment banker or investment bankers and manager or managers
that will administer the offering will be selected by, and the underwriting
arrangements with respect thereto (including the size of the offering) will be
approved by, the holders of a majority of the Registrable Securities to be
included in such offering; provided, however, that such investment bankers and
managers and underwriting arrangements must be reasonably satisfactory to the
Company. No holder may participate in any underwritten offering contemplated
hereby unless (a) such holder agrees to sell such holder's Registrable
Securities to be included in the underwritten offering in accordance with any
approved underwriting arrangements, (b) such holder completes and executes all
reasonable questionnaires, powers of attorney, indemnities, underwriting
agreements, lock-up letters and other documents required under the terms of such
approved underwriting arrangements and (c) if such holder is not then an
Electing Holder, such holder returns a completed and signed Notice and
Questionnaire to the Company in accordance with Section 3(a) hereof within a
reasonable amount of time before such underwritten offering. The holders
participating in any underwritten offering shall be responsible for any
underwriting discounts and commissions and fees and, subject to Section 4
hereof, expenses of their own counsel. The Company shall pay all expenses
customarily borne by issuers, including but not limited to filing fees, the fees
and disbursements of its counsel and independent public accountants and any
printing expenses incurred in connection with such underwritten offering.
Notwithstanding the foregoing, upon receipt of a request from the Managing
Underwriter or a representative of holders of a majority of the Registrable
Securities to be included in an underwritten offering to prepare and file an
amendment or supplement to the Shelf Registration Statement and Prospectus in
connection with an underwritten offering, the Company may delay the filing of
any such amendment or supplement for up to 60 days if there occurs or exists any
pending corporate development the disclosure of which would, in the judgment of
the Company, be harmful to the business, operations, prospects, or condition
(financial or otherwise) of the Company and its subsidiaries, taken as a whole..
7. Rules 144 and 144A.
The Company agrees, for so long as any Registrable Securities remain
outstanding and during any period in which the Company (a) is not subject to
Section 13 of 15(d) of the
-14-
Exchange Act, to make available, upon request of any holder of Registrable
Securities, to such holder or beneficial owner of Registrable Securities in
connection with any sale thereof and any prospective purchaser of such
Registrable Securities designated by such holder or beneficial owner, the
information required by Rule 144A(d)(4) under the Securities Act in order to
permit resales of such Registrable Securities pursuant to Rule 144A of the
Securities Act, and (b) is subject to Section 13 of 15 (d) of the Exchange Act,
to make all filings required thereby in a timely manner in order to permit
resales of such Registrable Securities pursuant to Rule 144 of the Securities
Act.
8. Miscellaneous.
(a) Remedies. The Company acknowledges and agrees that any failure
by the Company to comply with its obligations under this Agreement may result in
material irreparable injury to the Purchasers or the holders of Registrable
Securities for which there is no adequate remedy at law, that it will not be
possible to measure damages for such injuries precisely and that, in the event
of any such failure, the Purchasers or any holder of Registrable Securities may
obtain such relief as may be required to specifically enforce the Company's
obligations hereunder. The Company further agrees to waive the defense in any
action for specific performance that a remedy at law would be adequate.
(b) Other Registration Rights. The Company will not, on or after the
date of this Agreement, enter into any agreement with respect to its securities
that is inconsistent with the rights granted to the holders of Registrable
Securities in this Agreement or otherwise conflicts with the provisions hereof.
The Company shall not permit any securities other than the Registrable
Securities to be included in any Shelf Registration Statement hereunder. The
rights granted to the holders of Registrable Securities hereunder do not in any
way conflict with and are not inconsistent with the rights granted to the
holders of the Company's securities under any agreement in effect on the date
hereof.
(c) Amendments and Waivers. The provisions of this Agreement may not
be amended, modified or supplemented, and waivers or consents to or departures
from the provisions hereof may not be given unless (i) in the case of Section 2
hereof (other than the waiver contemplated by the proviso contained in Section
2(a)) and this Section 8(c)(i), the Company has obtained the written consent of
holders of all outstanding Registrable Securities and (ii) in the case of all
other provisions hereof, the Company has obtained the written consent of holders
of a majority of the Registrable Securities (excluding Registrable Securities
held by the Company or its Affiliates). Notwithstanding the foregoing, a waiver
or consent to departure from the provisions hereof that relates exclusively to
the rights of holders whose Registrable Securities are being sold pursuant to a
Shelf Registration Statement and that does not affect directly or indirectly the
rights of other holders of Registrable Securities may be given by the holders of
a majority of Registrable Securities being sold by such holders pursuant to such
Shelf Registration Statement.
(d) Notices. All notices and other communications provided for or
permitted hereunder shall be given as provided in the Stock Purchase Agreement.
-15-
(e) Parties in Interest. The parties to this Agreement intend that
all holders of Registrable Securities shall be entitled to receive the benefits
of this Agreement and that any Electing Holder shall be bound by the terms and
provisions of this Agreement by reason of such election with respect to the
Registrable Securities that are included in a Shelf Registration Statement. All
the terms and provisions of this Agreement shall be binding upon, shall inure to
the benefit of and shall be enforceable by the respective successors and assigns
of the parties hereto and any holder from time to time of the Registrable
Securities to the aforesaid extent. In the event that any transferee of any
holder of Registrable Securities shall acquire Registrable Securities, in any
manner, whether by gift, bequest, purchase, operation of law or otherwise, such
transferee shall, without any further writing or action of any kind, be entitled
to receive the benefits of and, if an Electing Holder, be conclusively deemed to
have agreed to be bound by and to perform all of the terms and provisions of
this Agreement to the aforesaid extent.
(f) Counterparts. 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.
(g) Headings. The headings in this agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning, construction
or interpretation hereof.
(h) Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of Delaware without giving effect to
provisions relating to conflicts of law to the extent the application of the
laws of another jurisdiction would be required thereby. If a party shall
commence a proceeding against another party to this Agreement to enforce any
provisions of this Agreement, then the prevailing party in such proceeding shall
be reimbursed by the other party for its attorney's fees and other costs and
expenses incurred with the investigation, preparation and prosecution of such
proceeding.
(i) Severability. In the event that any one or more of the
provisions contained herein, or the application thereof in any circumstance, is
held invalid, illegal or unenforceable in any respect for any reason, the
validity, legality and enforceability of any such provision in every other
respect and of the remaining provisions hereof shall not be in any way impaired
or affected thereby, it being intended that all of the rights and privileges of
the parties hereto shall be enforceable to the fullest extent permitted by law.
(j) Survival. The respective indemnities, agreements,
representations, warranties and other provisions set forth in this Agreement or
made pursuant hereto shall remain in full force and effect, regardless of any
investigation (or any statement as to the results thereof) made by or on behalf
of any Electing Holder, any director, officer or partner of such holder, any
agent or underwriter, any director, officer or partner of such agent or
underwriter, or any controlling person of any of the foregoing, and shall
survive the transfer and registration of the Registrable Securities of such
holder.
(k) Entire Agreement. This Agreement is intended by the parties as a
final expression of their agreement and intended to be a complete and exclusive
statement of the
-16-
agreement and understanding of the parties hereto in respect of the subject
matter hereof. There are no restrictions, promises, warranties or undertakings,
other than those set forth or referred to herein, with respect to the
registration rights granted with respect to the Registrable Securities. This
Agreement supersedes all prior agreements and understandings between the parties
with respect to such subject matter.
REGISTRATION RIGHTS AGREEMENT SIGNATURE PAGE
Please confirm by signing in the space provided below that the
foregoing correctly sets forth the agreement between the Company and you.
Very truly yours,
RADYNE COMSTREAM INC.
0000 Xxxx Xxxxxx Xxxxxx
Xxxxxxx, Xxxxxxx 00000
By:
-------------------------------
Name: Xxxxxx Fitting
Title: Chief Executive Officer
STETSYS US, INC.
c/o Singapore Technologies Pte Ltd
0 Xxxxxxx Xxxx #00-00
Xxxxxxxxx 000000
----------------------------------
Name: Ming Xxxxx Xxx
Title: Authorized Representative
STETSYS PTE. LTD.
c/o Singapore Technologies Pte Ltd
0 Xxxxxxx Xxxx #00-00
Xxxxxxxxx 000000
By:
-------------------------------
Name: Ming Xxxxx Xxx
Title: Chairman
-17-
REGISTRATION RIGHTS AGREEMENT SIGNATURE PAGE
Accepted and Agreed
------------------------------------------------
Name (Print)
By:
---------------------------------------------
Name:
Title:
Date:
-------------------------------------
Address:
-------------------------------------
-------------------------------------
-------------------------------------
Telephone:
-------------------------------------
Facsimile:
-------------------------------------
-18-
Annex A
Plan of Distribution
The Selling Stockholders and any of their pledgees, donees, assignees and
successors-in-interest may, from time to time, sell any or all of their shares
of Common Stock on any stock exchange, market or trading facility on which the
shares are traded or in private transactions. These sales may be at fixed or
negotiated prices. The Selling Stockholders may use any one or more of the
following methods when selling shares:
- ordinary brokerage transactions and transactions in which the
broker-dealer solicits purchasers;
- block trades in which the broker-dealer will attempt to sell the shares as
agent but may position and resell a portion of the block as principal to
facilitate the transaction;
- purchases by a broker-dealer as principal and resale by the broker-dealer
for its account;
- an exchange distribution in accordance with the rules of the applicable
exchange;
- privately negotiated transactions;
- to cover short sales made after the date that this Registration Statement
is declared effective by the Securities and Exchange Commission;
- broker-dealers may agree with the Selling Stockholders to sell a specified
number of such shares at a stipulated price per share;
- a combination of any such methods of sale; and
- any other method permitted pursuant to applicable law.
The Selling Stockholders may also sell shares under Rule 144 under the
Securities Act, if available, rather than under this prospectus.
Broker-dealers engaged by the Selling Stockholders may arrange for other
brokers-dealers to participate in sales. Broker-dealers may receive commissions
or discounts from the Selling Stockholders (or, if any broker-dealer acts as
agent for the purchaser of shares, from the purchaser) in amounts to be
negotiated. The Selling Stockholders do not expect these commissions and
discounts to exceed what is customary in the types of transactions involved.
The Selling Stockholders may from time to time pledge or grant a security
interest in some or all of the Shares owned by them and, if they default in the
performance of their secured obligations, the pledgees or secured parties may
offer and sell shares of Common Stock from time to time under this prospectus,
or under an amendment to this prospectus under Rule 424(b)(3) or other
applicable provision of the Securities Act of 1933 amending the list of selling
A-1
stockholders to include the pledgee, transferee or other successors in interest
as selling stockholders under this prospectus.
Upon the Company being notified in writing by a Selling Stockholder that
any material arrangement has been entered into with a broker-dealer for the sale
of Common Stock through a block trade, special offering, exchange distribution
or secondary distribution or a purchase by a broker or dealer, a supplement to
this prospectus will be filed, if required, pursuant to Rule 424(b) under the
Securities Act, disclosing (i) the name of each such Selling Stockholder and of
the participating broker-dealer(s), (ii) the number of shares involved, (iii)
the price at which such the shares of Common Stock were sold, (iv) the
commissions paid or discounts or concessions allowed to such broker-dealer(s),
where applicable, (v) that such broker-dealer(s) did not conduct any
investigation to verify the information set out or incorporated by reference in
this prospectus, and (vi) other facts material to the transaction. In addition,
upon the Company being notified in writing by a Selling Stockholder that a donee
or pledge intends to sell more than 500 shares of Common Stock, a supplement to
this prospectus will be filed if then required in accordance with applicable
securities law.
The Selling Stockholders also may transfer the shares of Common Stock in
other circumstances, in which case the transferees, pledgees or other successors
in interest will be the selling beneficial owners for purposes of this
prospectus.
The Selling Stockholders and any broker-dealers or agents that are
involved in selling the shares may be deemed to be "underwriters" within the
meaning of the Securities Act in connection with such sales. In such event, any
commissions received by such broker-dealers or agents and any profit on the
resale of the shares purchased by them may be deemed to be underwriting
commissions or discounts under the Securities Act. Discounts, concessions,
commissions and similar selling expenses, if any, that can be attributed to the
sale of Securities will be paid by the Selling Stockholder and/or the
purchasers.
Each Selling Stockholder has represented and warranted to the Company that
it does not have any agreement or understanding, directly or indirectly, with
any person to distribute the Common Stock. The Company has advised each Selling
Stockholder that it may not use shares registered on this Registration Statement
to cover short sales of Common Stock prior to the date on which this
Registration Statement shall have been declared effective by the Securities and
Exchange Commission. If a Selling Stockholder use this prospectus for any sale
of the Common Stock, it will be subject to the prospectus delivery requirements
of the Securities Act. The Selling Stockholders will be responsible to comply
with the applicable provisions of the Securities Act and Securities Exchange Act
of 1934, as amended, and the rules and regulations thereunder promulgated,
including without limitation, Regulation M, as applicable to such Selling
Stockholders in connection with resales of their respective shares under this
Registration Statement.
The Company is required to pay all fees and expenses incident to the
registration of the shares, but the Company will not receive any proceeds from
the sale of the Common Stock. The Company has agreed to indemnify the Selling
Stockholders against certain losses, claims, damages and liabilities, including
liabilities under the Securities Act.
A-2
EXHIBIT A
RADYNE COMSTREAM INC.
Notice of Registration Statement
and
Selling Securityholder Questionnaire
(Date)
Reference is hereby made to the Registration Rights Agreement (the
"Registration Rights Agreement") between Radyne ComStream Inc. (the "Company")
and the Sellers and the Purchasers named therein. Pursuant to the Registration
Rights Agreement, the Company has filed with the United States Securities and
Exchange Commission (the "Commission") a registration statement on Form S-3 (the
"Shelf Registration Statement") for the registration and resale under Rule 415
of the Securities Act of 1933, as amended (the "Securities Act"), __________
shares of the Company's common stock, par value $0.001 per share (the
"Securities"). A copy of the Registration Rights Agreement is attached hereto.
All capitalized terms not otherwise defined herein shall have the meanings
ascribed thereto in the Registration Rights Agreement.
Each beneficial owner of Registrable Securities (as defined below)
is entitled to have the Registrable Securities beneficially owned by it included
in the Shelf Registration Statement. In order to have Registrable Securities
included in the Shelf Registration Statement, this Notice of Registration
Statement and Selling Securityholder Questionnaire ("Notice and Questionnaire")
must be completed, executed and delivered to the Company's counsel at the
address set forth herein for receipt.
Certain legal consequences arise from being named as a selling
securityholder in the Shelf Registration Statement and related Prospectus.
Accordingly, holders and beneficial owners of Registrable Securities are advised
to consult their own securities law counsel regarding the consequences of being
named or not being named as a selling securityholder in the Shelf Registration
Statement and related Prospectus.
The term "Registrable Securities" is defined in the Registration
Rights Agreement to mean all or any portion of the Securities; provided,
however, that a security ceases to be a Registrable Security when it is no
longer a Restricted Security.
The term "Restricted Security" is defined in the Registration Rights
Agreement to mean any Security except any such Security that (i) has been
registered pursuant to an effective registration statement under the Securities
Act and sold in a manner contemplated by the Shelf Registration Statement, (ii)
has been transferred in compliance with Rule 144 under the
A-3
Securities Act (or any successor provision thereto) or is transferable pursuant
to paragraph (k) of such Rule 144 (or any successor provision thereto), or (iii)
has otherwise been transferred and a new Security not subject to transfer
restrictions under the Securities Act has been delivered by or on behalf of the
Company.
ELECTION
The undersigned holder (the "Selling Securityholder") of Registrable
Securities hereby elects to include in the Shelf Registration Statement the
Registrable Securities beneficially owned by it and the Registrable Securities
listed below in Item (3). The undersigned, by signing and returning this Notice
and Questionnaire, agrees to be bound with respect to such Registrable
Securities by the terms and conditions of this Notice and Questionnaire and the
Registration Rights Agreement, including without limitation Section 5 of the
Registration Rights Agreement as if the undersigned Selling Securityholder were
an original party thereto.
The Selling Securityholder hereby provides the following information
to the Company and represents and warrants that such information is accurate and
complete:
QUESTIONNAIRE
Certain capitalized terms used in this Questionnaire are defined in
Appendix l attached hereto. Capitalized terms used in this Questionnaire but not
defined in Appendix 1 have the meanings given to them in the accompanying
letter.
(1) (a) Full legal name of Selling Securityholder:
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(i) Is such Selling Securityholder a:
[ ] Corporation [ ] General Partnership
[ ] Individual [ ] Limited Partnership
[ ] Other (please specify:____________________)
(ii) In what state is such Selling Securityholder organized or
domiciled?
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(b) Full legal name of Registered Holder (if not the same as in (a)
above) of Registrable Securities listed in Item (4) below:
--------------------------------------------------------------------
A-4
(2) Address for Notices to Selling Securityholder:
--------------------------------------------------------
--------------------------------------------------------
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Telephone:
--------------------------------------------------------
Fax:
--------------------------------------------------------
Contact Person:
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(3) Beneficial Ownership of Securities by Another Entity or Individual:
(a) Is another entity or individual the Beneficial Owner of any
Securities?
[ ] No (skip questions (b)-(e) below)
[ ] Yes (answer questions (b)-(e) below)
(b) What is the full legal name of such Beneficial Owner?
--------------------------------------------------------------------
(c) Is such Beneficial Owner a:
[ ] Corporation [ ] General Partnership
[ ] Individual [ ] Limited Partnership
[ ] Other (please specify:____________________)
(d) In what state is such Beneficial Owner organized or domiciled?
--------------------------------------------------------------------
(e) Please provide the name, address and telephone number of a contact
person for such Beneficial Owner.
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--------------------------------------------------------------------
--------------------------------------------------------------------
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(4) Beneficial Ownership of Securities:
Except as set forth below in this Item (4), the undersigned is not a
Beneficial Owner of any Securities.
A-5
(a) Number of Registrable Securities (as defined in the Registration
Rights Agreement) Beneficially Owned:
------------------------------
(b) Number of Securities other than Registrable Securities Beneficially
Owned:
--------------------------------------------------------------------
(c) Number of Registrable Securities that the undersigned wishes to be
included in the Shelf Registration Statement:
-----------------------
(5) Beneficial Ownership of Other Securities of the Company:
Except as set forth below in this Item (5), the undersigned Selling
Securityholder is not a Beneficial Owner of any shares of Common Stock or
any other securities of the Company, other than the Securities listed
above in Item (4).
State any exceptions here:
(6) Relationships with the Company:
Except as set forth below, neither the Selling Securityholder nor any of
its Affiliates, officers, directors or principal equity holders (5% or
more) has held any position or office or has had any other Material
Relationship with the Company (or its predecessors or Affiliates) during
the past three years.
State any exceptions here:
(7) Full Legal Name of Natural Control Person (which means a natural person
who directly you indirectly alone or with others has power to vote or
dispose of the securities covered by the questionnaire):
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A-6
(8) BROKER-DEALER STATUS:
(a) Are you a broker-dealer?
Yes [ ] No [ ]
Note: If yes, the Commission's staff has indicated that you should be
identified as an underwriter in the Registration Statement.
(b) Are you an affiliate of a broker-dealer?
Yes [ ] No [ ]
(c) If you are an affiliate of a broker-dealer, do you certify that you
bought the Registrable Securities in the ordinary course of
business, and at the time of the purchase of the Registrable
Securities to be resold, you had no agreements or understandings,
directly or indirectly, with any person to distribute the
Registrable Securities?
Yes [ ] No [ ]
Note: If no, the Commission's staff has indicated that you should be
identified as an underwriter in the Registration Statement.
By signing below, the Selling Securityholder acknowledges that it
understands its obligation to comply, and agrees that it will comply, with the
provisions of the Exchange Act and the rules and regulations thereunder,
particularly Regulation M. The Selling Securityholder also acknowledges that it
understands that the answers to this Questionnaire are furnished for use in
connection with the Registration Statement and any amendments or supplements
thereto filed with the SEC pursuant to the Securities Act of 1933, as amended.
In the event that the Selling Securityholder transfers all or any portion
of the Registrable Securities listed in Item (3) above after the date on which
such information is provided to the Company, the Selling Securityholder agrees
to notify the transferee(s) at the time of the transfer of its rights and
obligations under this Notice and Questionnaire and the Registration Rights
Agreement.
By signing below, the Selling Securityholder consents to the disclosure of
the information contained herein in its answers to Items (1) through (9) above
and the inclusion of such information in the Shelf Registration Statement and
related Prospectus. The Selling Securityholder understands that such information
will be relied upon by the Company in connection with the preparation of the
Shelf Registration Statement and related Prospectus.
The Selling Securityholder acknowledges that material misstatements and
omissions of material facts in the Registration Statement and any amendments or
supplement thereto may give
A-7
rise to civil and criminal liabilities to the Company and to each officer and
director of the Company signing the Registration Statement and to other persons
signing such document. As a result, in accordance with the Selling
Securityholder's obligation under Section 3(a) of the Registration Rights
Agreement to provide such information as may be required by law for inclusion in
the Shelf Registration Statement, the Selling Securityholder agrees to promptly
notify the Company of any inaccuracies or changes in the information provided
herein which may occur subsequent to the date hereof at any time while the Shelf
Registration Statement remains in effect. All notices hereunder shall be made in
accordance with the Registration Rights Agreement as follows:
(i) to the Company:
Radyne ComStream Inc.
0000 Xxxx Xxxxxx Xxxxxx
Xxxxxxx, Xxxxxxx 00000
Attention:
------------
(ii) with a copy to:
Xxxxx & Xxxxxx LLP
One Arizona Center
000 Xxxx Xxx Xxxxx
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxx, Esq.
I confirm that, to the best of my knowledge and belief, the foregoing
statements (including without limitation the answers to this Questionnaire) are
correct.
IN WITNESS WHEREOF, the undersigned, by authority duly given, has caused
this Notice and Questionnaire to be executed and delivered either in person or
by its duly authorized agent.
Dated:
------------------
--------------------------------------------
Selling Securityholder
(Print/type full legal name of beneficial
owner of Registrable Securities)
By:
----------------------------------------
Name:
Title:
A-8
PLEASE RETURN THE COMPLETED AND EXECUTED NOTICE AND QUESTIONNAIRE FOR RECEIPT TO
THE COMPANY'S COUNSEL AT:
Xxxxx & Xxxxxx LLP
One Arizona Center
000 Xxxx Xxx Xxxxx
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxx, Esq.
A-9
APPENDIX 1
DEFINITIONS
For the purpose of this Questionnaire, the following definitions
apply:
1. Affiliate. As used in Questions 1 - 7 and Question 9, a person is
an "Affiliate" of a person if such person controls, is controlled by, or is
under common control with, another person. Please assume that an "Affiliate" of
the Company includes without limitation, any 5% stockholder of the Company
(including any person who owns, controls, or holds or holds an option to
acquire, and has the power to vote, 5% or more of the Company's outstanding
voting securities). "Control" is the possession, directly or indirectly, of the
power to direct or cause the direction of the management and policies of an
entity, whether through the ownership of voting securities, by contract or
otherwise.
As used in Question 8 of this Questionnaire, an "affiliate" of an
NASD member has the following meaning:
(1) a company which controls, is controlled by or is under common
control with a member;
(2) the term affiliate is presumed to include, but is not limited to,
the following:
(a) a company will be presumed to control a member if the company
beneficially owns 10% or more of the outstanding voting
securities of a member which is a corporation, or beneficially
owns a partnership interest in 10% or more of the
distributable profits or losses of a member which is a
partnership;
(b) a member will be presumed to control a company if the member
and persons associated with the member beneficially own (i)
10% or more of the outstanding subordinated debt of a company,
(ii) 10% or more of the outstanding voting securities of a
company which is a corporation or (iii) a partnership interest
in 10% or more of the distributable profits or losses of a
company which is a partnership;
(c) a company will be presumed to be under common control with a
member if:
(i) the same natural person or company controls both the
member and company by beneficially owning 10% or more of
the outstanding voting securities of a member or company
which is a corporation, or by beneficially owning a
partnership interest in 10% or more of the distributable
profits or losses of a member or company which is a
partnership; or
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(ii) a person having the power to direct or cause the
direction of the management or policies of the member or
the company also has the power to direct or cause the
direction of the management or policies of the other
entity in question.
2. Beneficial Owner. A "Beneficial Owner" of a security includes any
person who, directly or indirectly, through any contract, arrangement,
understanding, relationship or otherwise, has or shares voting power and/or
investment power with respect to such security. Voting power includes "the power
to vote, or to direct the voting, of such security" and investment power
includes "the power to dispose, or to direct the disposition, of such security."
A person is also a Beneficial Owner of a security if he has the
right to acquire beneficial ownership of such security, at any time within sixty
days, including but not limited to, any right to acquire through: (a) the
exercise of an option, warrant or right, (b) the conversion of a convertible
security, (c) the power to revoke a trust, discretionary account or similar
arrangement, or (d) the automatic termination of a trust, discretionary account
or similar arrangement; provided, however, that if the acquisition of an option,
warrant, right, convertible security or power described in (a), (b) or (c) is
for the purpose of maintaining or obtaining control over the issuer of the
security, the holder of the option, warrant, right, convertible security or
power shall, immediately upon such acquisition and regardless of when it is
exercisable, be deemed a beneficial owner of the underlying securities.
The possession of the legal power to vote and/or direct the
disposition of securities, absent unusual circumstances, will be sufficient to
confer beneficial ownership. Such power may be held directly, or indirectly,
through one or more controlled entities.
3. Material Relationship. The term "material relationship" has not
been defined by the Securities and Exchange Commission (the "SEC"). The SEC,
however, is likely to construe as material any relationship which tends to
impact arm's length bargaining in dealings with a company, whether arising from
a close business connection, family relationship, a relationship of control or
otherwise. For example, you should conclude that you have such a relationship
with any organization of which you own, directly or indirectly, 10% more of the
outstanding voting stock, or in which you have some other substantial interest,
and with any person or organization with whom you have, or with whom any
relative (or any other person or organization as to which you have any of the
foregoing other relationships) has, a contractual relationship.
4. Member. Rule 0120 of the NASD's Rules of Fair Practice defines
the term "member" to mean any individual, partnership, corporation or other
legal entity admitted to membership in the NASD, and Article l of the NASD's
By-Laws defines the term "person associated with a member" to mean every sole
proprietor, partner, officer, director, or branch manager of any member, or any
natural person occupying a similar status or performing similar functions, or
any natural person engaged in the investment banking or securities business who
is directly or indirectly controlling or controlled by such member (for example,
any employee), whether or not such person is registered or exempt from
registration with the NASD.
A-11
