Exhibit 10.45
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REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (this "Agreement") is made and entered
into as of December 8, 2000, by and between RF Monolithics, Inc., a Delaware
corporation (the "Company"), and Xxxxx Fargo Business Credit, Inc., a Minnesota
corporation, as the purchaser of the Warrants (the "Initial Holder").
For good and valuable consideration, the receipt and adequacy of which are
hereby acknowledged, the parties hereby agree as follows:
1. Definitions. As used in this Agreement, the following capitalized
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terms shall have the following meanings:
Agreement: This Registration Rights Agreement, as amended and modified from
time to time.
Company: RF Monolithics, Inc., a Delaware corporation and its successors
and assigns.
Common Stock: The common stock, $.001 par value, of the Company or any
shares of any class or classes resulting from any reclassification or
reclassifications thereof and which have no preferences in respect of dividends
or of amounts payable in the event of any voluntary or involuntary liquidation,
dissolution or winding up of the Company and that are not subject to redemption.
Demand Registration: A registration of the Registrable Securities described
in Section 2.1.
Exchange Act: Securities Exchange Act of 1934, as from time to time
amended.
Holder: The Initial Holder and any Person that holds any Warrants or any
Registrable Securities.
Initial Holder: Xxxxx Fargo Business Credit, Inc. as the initial purchaser
of the Warrants.
Misstatement: An untrue statement of a material fact or an omission to
state a material fact required to be stated in a Registration Statement,
Prospectus or preliminary prospectus necessary to make the statements in a
Registration Statement, Prospectus or preliminary prospectus not misleading.
Other Holders: Holders of Other Registrable Securities in such capacity.
Other Registrable Securities: (a) any shares of Common Stock that are not
Registrable Securities but that are the subject of an effective agreement with
the Company according registration rights to the holders of such stock,
including "Registrable Securities" as defined in the Unitholder Registration
Rights Agreement and (b) any securities issued or issuable with respect to any
Common Stock referred to in the foregoing clause by way of stock dividend or
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stock split or in connection with a combination of shares, recapitalization,
merger, consolidation or other reorganization or otherwise.
Person: A natural person, partnership, corporation, business trust,
association, joint venture or other entity or a government or agency or
political subdivision thereof.
Piggyback Registration: A registration of the Registrable Securities
described in Section 2.2 hereof.
Prospectus: The prospectus included in any Registration Statement, as
supplemented by any and all prospectus supplements and as amended by any and all
post-effective amendments and including all material incorporated by reference
in such prospectus.
Registrable Securities: (a) The shares of Common Stock acquired by the
Holders or their permitted assigns in connection with the exercise of the
Warrants, and (b) any securities issued or issuable with respect to such Common
Stock by way of a stock dividend or stock split or in connection with a
combination of shares, recapitalization, merger, consolidation or
reorganization; provided that any such share or security shall be deemed to be
Registrable Securities only if and so long as it (i) has not been sold such
securities to or through a broker, dealer or underwriter in a public
distribution or other public securities transaction or sold in a transaction
exempt from the registration and prospectus delivery requirements of the
Securities Act under Rule 144(k) promulgated thereunder (or any successor rule
other than Rule 144A) or (ii), along with all other shares of Common Stock owned
by the Holder and all securities issued or issuable with respect to such Common
Stock by way of a stock dividend or stock split or in connection with a
combination of shares, recapitalization, merger, consolidation or reorganization
are not eligible for immediate sale in a transaction exempt from the
registration and prospectus delivery requirements of the Securities Act under
Rule 144(k) promulgated thereunder (or any successor rule other than Rule 144A)
and all restrictive legends have been removed from the certificates representing
such securities, there are no stop transfer orders on the transfer books with
respect to such securities and the securities are not subject to any
"underwriter lock-ups" or other similar restrictions.
Registration: A Demand Registration described in Section 2.1 and a
Piggyback Registration described in Section 2.2 and an "S-3" registration
described in Section 2.4.
Registration Expenses: The out-of-pocket expenses of a Registration,
including:
(1) all registration and filing fees (including fees with respect to
filings required to be made with the National Association of Securities
Dealers, Inc. and any securities exchange on which the Common Stock is then
listed);
(2) fees and expenses of compliance with securities or blue sky laws
(including reasonable fees and disbursements of counsel for the
underwriters in connection with blue sky qualifications of the Registrable
Securities);
(3) printing, messenger, telephone and delivery expenses;
(4) reasonable fees and disbursements of counsel for the Company;
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(5) reasonable fees and disbursements of one law firm, selected by
the selling Holders registering the majority of the Registrable Securities
in any given Registration, acting as counsel for the Selling Holders;
(6) reasonable fees and disbursements of all independent certified
public accountants of the Company incurred specifically in connection with
such Registration; and
(7) all other reasonable fees and expenses (other than underwriting
discounts and commissions relating to Registrable Securities) incurred in
connection with a Registration, whether or not such Registration becomes
effective.
Registration Statement: Any registration statement that covers Registrable
Securities pursuant to the provisions of this Agreement, including the
Prospectus included in such registration statement, amendments (including post-
effective amendments) and supplements to such registration statement, and all
exhibits to and all material incorporated by reference in such registration
statement.
Requesting Holders: Has the meaning ascribed to it in Section 2.1.
Securities Act: The Securities Act of 1933, as from time to time amended.
SEC: The Securities and Exchange Commission and any successor agency
thereto.
Warrant Agreement: The Warrant Agreement, dated as of even date herewith,
to which the Company and the Initial Holder are parties and pursuant to which
the Company issued the Warrants.
Warrants: The warrants issued pursuant to the Warrant Agreement.
Underwritten Registration or Underwritten Offering: A Registration in which
securities of the Company are sold to an underwriter for distribution to the
public pursuant to a firm commitment underwriting.
Unitholder Registration Rights Agreement: The Registration Rights Agreement
dated as of the date hereof, by and among the Company and the and certain
investors named therein pertaining to the purchase of 533,332 shares of Common
Stock and 533,332 warrants to purchase Common Stock.
2. Registrations.
2.1 Demand Registration. If, at any time after the date hereof,
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the Company shall receive from the Holders (the "Requesting Holders")
owning as of the date of such request at least 50% of the then outstanding
shares of Registrable Securities a written request to register at least 30%
of the Registrable Securities owned by such Holders as of the date of such
request, then the Company will promptly give notice of such request to all
Holders and shall effect as soon thereafter as practicable, and in any
event within 90 days of the receipt of such request, the Registration under
the Securities Act of all
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Registrable Securities which any Holder requests to be registered.
Notwithstanding the foregoing, the Company shall not be under any
obligation to have a Demand Registration become effective prior to a date
earlier than six (6) months following the date hereof. Further, the Company
shall not be obligated to effect, or to take any action to effect, a Demand
Registration if Requesting Holders request that the Demand Registration to
be filed is during the period starting with the date (determined at the
time such request for Demand Registration is made) thirty (30) days prior
to the Company's good faith estimate of the date of filing of, and ending
on a date one hundred eighty (180) days after the effective date of, a
Company-initiated underwritten Registration in which the Holders may
participate as to at least forty percent (40%) of the Registrable
Securities held by each of them pursuant to Section 2.2; provided that the
Company is actively employing in good faith all reasonable efforts to cause
such Registration Statement to become effective.
The Holders shall not be entitled to more than one (1) Demand Registration.
However, any Demand Registration that does not become effective, or if any
offering associated with a Demand Registration is not able to close,
through no fault of the Holders and no other person, such Demand
Registration shall not be deemed to be the Demand Registration to which the
Holders are entitled.
2.2 Piggyback Registration. Each time the Company decides to file a
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Registration Statement under the Securities Act (other than on Forms S-4 or
S-8 or any successor form for the registration of securities issued or to
be issued in connection with a merger or acquisition or employee benefit
plan), the Company shall give written notice thereof to the Holders. The
Company shall include in such Registration Statement such shares of
Registrable Securities for which it has received written requests to
register such shares within fifteen (15) days after such written notice has
been given. If in the good faith judgment of the managing underwriter in
any Underwritten Offering, the inclusion of all of the shares of
Registrable Securities and any other Common Stock requested to be
registered by third parties holding similar registration rights would
materially interfere with the successful marketing of a smaller number of
such shares, then the number of shares of Registrable Securities and other
Common Stock to be included in the offering (except for shares to be issued
by the Company in an offering initiated by the Company) shall be reduced as
provided herein. The Company shall advise all holders of securities
requesting registration of the underwriters' decision; and the number of
shares of securities that are entitled to be included in the Underwritten
Registration shall be allocated first to the Company for securities being
sold for its own account and thereafter as set forth in Section 2.3 below.
If any Person does not agree to the terms of any such underwriting, such
Person shall be excluded therefrom by written notice from the Company or
the underwriter. Any Registrable Securities or other shares of Common Stock
excluded or withdrawn from such underwriting shall be withdrawn from such
registration. If shares are so withdrawn from the registration or if the
number of shares of Registrable Securities to be included in such
registration was previously reduced as a result of marketing factors, the
Company shall then offer to all Persons who have retained the right to
include securities in the registration the right to include additional
securities in the registration in an aggregate amount equal to the number
of shares so withdrawn,
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with such shares to be allocated among the Persons, requesting additional
inclusion in accordance with Section 2.3 below.
2.3 Underwriter Cutback.
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(a) If a Demand Registration involves an Underwritten Offering,
and the managing underwriter advises the Company in writing (with a
copy to each Holder requesting Registration) that, in its opinion, the
number of Registrable Securities and other securities of the Company
held by any other Person requested to be included in such Registration
exceeds the number which can be sold in (or during the time of) such
offering within a price range acceptable to the holders of a majority
(by number of shares) of the Registrable Securities requested to be
included in such Registration, the Company will include in such
Registration all Registrable Securities requested to be included in
such Registration (unless the provisions of the following sentence
apply) and will include in such Registration other securities of the
Company held by any other Person (including any securities proposed to
be issued and sold by the Company) only to the extent that the number
of shares that the Company is advised can be so sold in (or during the
time of) such offering exceeds the number of Registrable Securities to
be included in such Registration. If a Demand Registration involves an
Underwritten Offering, and the managing underwriter advises the
Company in writing (with a copy to each Holder requesting
registration) that, in its opinion, the number of Registrable
Securities requested to be included in such Registration exceeds the
number which can be sold in (or during the time of) such Underwritten
Offering within a price range acceptable to the holders of a majority
(by number of shares) of the Registrable Securities requested to be
included in such registration, the Company will include in such
Registration only Registrable Securities requested to be included in
such Registration. In such event, such Registrable Securities will be
included in such Registration only to the extent of the number of
shares which the Company is advised can be so sold in (or during the
time of) such Underwritten Offering; the Registrable Securities to be
included in such registration shall be taken up pro rata from the
holders of Registrable Securities requesting such Registration on the
basis of the percentage of Registrable Securities requested to be
included in such Registration; and all shares proposed to be sold by
the Company or any other party shall be deleted from such Registration
prior to effecting any reduction of Registrable Securities by the
holders thereof under this paragraph (a). In the event that less than
all of the Registrable Securities requested to be included in a Demand
Registration are not included in such Demand Registration as a result
of an underwriter cutback pursuant to the provisions of this Section
2.3, such Demand Registration shall not be deemed the Demand
Registration to which the Holders are entitled.
(b) If (i) a Piggy-Back Registration involves an Underwritten
Offering of the securities so being registered, whether or not for
sale for the account of the Company, and (ii) the managing underwriter
of such Underwritten Offering shall inform the Company and the holders
of the Registrable Securities requesting such Registration by letter
of its belief that the number of securities requested to be
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included in such Registration exceeds the number which can be sold in
(or during the time of) such offering, then (A) in the case of an
Underwritten Offering for the account of the Company, Registration for
the Registrable Securities shall be cut back such that (1) no holder
of Registrable Securities shall be entitled to participate in such
Underwritten Offering unless all shares of Common Stock proposed to be
sold by the Company for its own account have been included in such
Underwritten Offering, and (2) after the Company has included its own
shares of Common Stock, the Holders and Other Holders shall be
entitled to include their Registrable Securities and Other Registrable
Securities in an amount up to the amount that such managing
underwriter or underwriters advise may be included therein (allocated
among the Holders and Other Holders pro rata on the basis of the
number of Registrable Securities and Other Registrable Securities
requested to be included therein by each such holder) and (B) in the
case of an Underwritten Offering that was commenced as a result of the
exercise of demand registration rights by Other Holders, the Other
Holders commencing such Registration and the Holders shall be entitled
to include their Other Registrable Securities and Registrable
Securities in an amount up to the amount such managing underwriters or
underwriters advise may be included therein (allocated first to the
Other Holders commencing such Registration and thereafter among the
Holders and Other Holders who did not commence such Registration). If,
however, the Registration was initiated by the Company within one
hundred twenty (120) days of a Demand Registration and is in lieu
thereof, then the Company shall include in the registration all
Registrable Securities or Other Registrable Securities requested to be
included in such Registration and shall decrease the number of
securities proposed to be sold by the Company and to be included in
such Registration to the extent necessary to reduce the number of
securities to be included in the Registration to the level recommended
by the managing underwriter.
2.4 Registration. At any time the Company is eligible to file a
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registration statement on Form S-3 (or any such successor form relating to
secondary offerings), Holders holding a majority of the Registrable Securities
then outstanding may request the Company, in writing, to effect the registration
on Form S-3 (or such successor form) and any related qualification or compliance
with respect to all or a part of the Registrable Securities held by such
Holders. Upon receipt of such notice, then the Company shall, promptly after the
receipt thereof, give written notice of such request to all Holders.
Notwithstanding the foregoing, the Company shall not be under any obligation
under this Section 2.4 if (i) the aggregate fair market value of the Registrable
Securities to be registered on the date of such request is made does not equal
or exceed $500,000 or (ii) to effect an underwritten or dealer-managed offering.
The Company shall use its best efforts to effect such a registration as soon as
practicable, covering all the Registrable Securities which the Holders shall
request in writing within twenty (20) days after receipt of such notice. The
Company shall use its best efforts to cause such registration statement to
become effective; provided, however, that the Company shall not be obligated to
effect any such registration, qualification or compliance pursuant to this
Section 2.4 if Form S-3 (or any such successor form relating to secondary
offerings) is not available for such offering by the Holders.
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2.5 Postponement. The Company may postpone the filing of any
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Registration Statement required hereunder for a reasonable period of time,
not to exceed ninety (90) days in the aggregate during any twelve-month
period, if the Company has been advised by legal counsel that such filing
would require a special audit or the disclosure of a material impending
transaction or other matter and the Company's Board of Directors determines
reasonably and in good faith that such disclosure would have a material
adverse effect on the Company; provided, however, that the Company shall
use its best efforts to achieve such effectiveness promptly following such
period.
3. Registration Procedures. If and whenever the Company is required to
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register Registrable Securities, the Company will use its best efforts to effect
such registration to permit the sale of such Registrable Securities in
accordance with the intended plan of distribution thereof, and pursuant thereto
the Company will as expeditiously as possible:
(a) prepare and file with the SEC as soon as practicable a
Registration Statement with respect to such Registrable Securities and
use its best efforts to cause such Registration Statement to become
effective and remain effective until the Registrable Securities
covered by such Registration Statement have been sold;
(b) prepare and file with the SEC such amendments and post-
effective amendments to the Registration Statement, and such
supplements to the Prospectus, as may be requested by the Holders or
any underwriter of Registrable Securities or as may be required by the
rules, regulations or instructions applicable to the registration form
used by the Company or by the Securities Act or rules and regulations
thereunder to keep the Registration Statement effective until all
Registrable Securities covered by such Registration Statement are sold
in accordance with the intended plan of distribution set forth in such
Registration Statement or supplement to the Prospectus;
(c) deliver to the Holders, their attorneys and the
underwriters, if any, without charge, as many copies of each
Prospectus (and each preliminary prospectus) as such Persons may
reasonably request (the Company hereby consenting to the use of each
such Prospectus (or preliminary prospectus) by the selling Holders and
the underwriters, if any, in connection with the offering and sale of
the Registrable Securities covered by such Prospectus (or preliminary
prospectus) and a reasonable number of copies of the then-effective
Registration Statement and any post-effective amendments thereto and
any supplements to the Prospectus, including financial statements and
schedules, all documents incorporated therein by reference and all
exhibits (including those incorporated by reference);
(d) prior to any public offering of Registrable Securities,
register or qualify or cooperate with the Holders, the underwriters,
if any, and their respective counsel in connection with the
registration or qualification of such Registrable Securities for offer
and sale under the securities or blue sky laws of such jurisdictions
as such selling Holders or underwriters may designate in writing and
do anything else necessary or advisable to enable the disposition in
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such jurisdictions of the Registrable Securities covered by the
Registration Statement; provided that the Company shall not be
required to qualify generally to do business in any jurisdiction where
it is not then so qualified or to take any action which would subject
it to general service of process in any such jurisdiction where it is
not then so subject;
(e) cause all such Registrable Securities to be listed on each
securities exchange, stock market or automated quotation system on
which similar securities issued by the Company are then listed;
(f) provide a transfer agent and registrar for all such
Registrable Securities not later than the effective date of such
Registration Statement;
(g) advise each seller of such Registrable Securities, promptly
after it shall receive notice or obtain knowledge thereof, of the
issuance of any stop order by the SEC suspending the effectiveness of
such Registration Statement or the initiation or threatening of any
proceeding for such purpose and promptly use its reasonable best
efforts to prevent the issuance of any stop order or to obtain its
withdrawal if such stop order should be issued;
(h) at least three days prior to the filing of any Registration
Statement or prospectus or any amendment or supplement to such
Registration Statement or prospectus or any document that is to be
incorporated by reference into such Registration Statement or
prospectus, furnish a copy thereof to each seller of such Registrable
Securities or their counsel;
(i) notify the Holders at any time when a prospectus relating to
such Registration Statement is required to be delivered under the
Securities Act, of the happening of any event as a result of which the
prospectus included in such Registration Statement, as then in effect,
includes a Misstatement, and then to correct such Misstatement as set
forth in Section 8; and
(j) permit a representative of the Holders, the underwriters, if
any, and any attorney or accountant retained by such Holders or
underwriter to participate in the preparation of the Registration
Statement, and cause the Company's officers, directors and employees
to supply all information reasonably requested by any such
representative, underwriter, attorney or accountant in connection with
the Registration; provided, however, that such representatives,
underwriters, or accountants enter into a confidentiality agreement,
in form and substance reasonably satisfactory to the Company, prior to
the release or disclosure of any such information.
4. Registration Expenses. The Registration Expenses of all Registrations
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shall be borne by the Company. It is acknowledged by the Holders that the
Holders will bear all underwriters' commissions and discounts relating to the
sale of the Registrable Securities.
5. Requirements of Participation in Underwritten Offerings. No Person
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may participate in any Underwritten Offering for equity securities of the
Company pursuant to a
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Registration initiated by the Company hereunder unless such Person (a) agrees to
sell such Person's securities on the basis provided in any underwriting
arrangements approved by the Company (provided, the underwriting agreement is no
less favorable to such Person than it is to the Company) and (b) completes and
executes all questionnaires, powers of attorney, indemnities, lock-up
agreements, such underwriting agreements and other documents reasonably required
under the terms of such underwriting arrangements.
6. Other Registrations.
(a) The Company may not cause any other registration of
securities for sale for its own account (other than a registration
effected solely to implement an employee benefit plan) to be initiated
after a Demand Registration and to become effective less than ninety
(90) days after the effective date of any such Demand Registration.
(b) The Company shall not, without the prior written consent of
the Holders holding the majority of Registrable Securities, enter into
any agreement with any holder or prospective holder of any securities
of the Company that would allow such holder or prospective holder to
include any securities in any registration filed under Sections 2
unless, under the terms of such agreement, such holder or prospective
holder may include such securities in any such registration only to
the extent that the inclusion of such securities will not reduce the
amount of Registrable Securities to be included by the Holders or the
Company in the Demand Registration and shall grant the Holders rights
comparable to those rights granted to the Company under Section 2.3.
(c) The Company represents and warrants that: (i) no Person has
any registration rights other than those granted herein; (ii) the
Company has full power and authority to enter into this Agreement; and
(iii) this Agreement does not violate or breach any other agreement to
which the Company is a party. Further the Company covenants that it
will not grant any Person any registration rights that have any terms
that are more favorable to such Person than terms and conditions
contained in this Agreement.
(d) Sections 6(b) and 6(c)(i) shall not apply to rights granted
under Unitholder Registration Rights Agreement.
7. Indemnification.
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(a) The Company agrees to indemnify, to the extent permitted by
law, the Holders, their officers and directors and each Person who
controls any such holder (within the meaning of the Securities Act or
Exchange Act) against all losses, claims, damages, liabilities and
expenses (including attorneys' fees and expenses) caused by any
Misstatement or any alleged Misstatement, except insofar as the same
are caused by or contained in any information furnished in writing to
the Company by such Holder expressly for use therein or by such
Holder's failure to deliver a copy of the Registration Statement or
Prospectus or
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any amendments or supplements thereto in a reasonable time period
after the Company has furnished such holder with a sufficient number
of copies of the same. The Company will indemnify the underwriters,
their officers and directors and each Person who controls such
underwriters (within the meaning of the Securities Act) to the same
extent as provided above with respect to the indemnification of the
Holder.
(b) In connection with any Registration Statement in which a
Holder is participating, such Holder will furnish to the Company in
writing such information and affidavits as the Company reasonably
requests for use in connection with any such Registration Statement or
Prospectus and, to the extent permitted by law, will indemnify the
Company, its directors and officers and agents and each Person who
controls the Company (within the meaning of the Securities Act or
Exchange) against any losses, claims, damages, liabilities and
expenses (including without limitation reasonable attorneys` fees)
resulting from any Misstatement, but only to the extent that such
Misstatement is contained in any information or affidavit so furnished
in writing by such Holder expressly for use therein; provided that the
obligation to indemnify will be several, not joint and several, among
such Holders, and the liability of each such holder of Registrable
Securities will be in proportion to and limited to the gross amount
received by such holder from the sale or Registrable Securities
pursuant to such Registration Statement.
(c) Any Person entitled to indemnification herein will (i) give
prompt written notice to the indemnifying party of any claim with
respect to which it seeks indemnification and (ii) unless in such
indemnified party's reasonable judgment an actual or potential
conflict of interest or an actual or potential different interest
between such indemnified and indemnifying parties may exist with
respect to such claim, permit such indemnifying party to assume the
defense of such claim with counsel reasonably satisfactory to the
indemnified party. If such defense is assumed, the indemnifying party
will not be subject to any liability for any settlement made by the
indemnified party without its consent (but such consent will not be
unreasonably withheld). An indemnifying party who is not entitled to,
or elects not to, assume the defense of a claim will not be obligated
to pay the fees and expenses of more than one counsel for all parties
indemnified by such indemnifying party with respect to such claim,
unless in the reasonable judgment of any indemnified party an actual
or potential conflict of interest or an actual or potential different
interest may exist between such indemnified party and any other of
such indemnified parties with respect to such claim.
(d) The indemnification provided for under this Agreement will
remain in full force and effect regardless of any investigation made
by or on behalf of the indemnified party or any officer, director or
controlling person of such indemnified party and will survive the
transfer of securities. The Company and each holder of Registrable
Securities participating in the offering also agrees to make such
provisions as are reasonably requested by any indemnified party for
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contribution to such party in the event the Company's or such holder's
indemnification is unavailable for any reason.
(e) The obligations of the Company and the Holders under this
Section 7 shall survive the completion of any offering of Registrable
Securities. Notwithstanding the foregoing, to the extent that the
provisions on indemnification and contribution contained in the
underwriting agreement entered into in connection with an Underwritten
Offering are in conflict with the foregoing provisions, the provisions
of the underwriting agreement shall control.
8. Suspension of Sales. Upon receipt of written notice from the
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Company that a Registration Statement or Prospectus contains a Misstatement,
each of the Holders shall forthwith discontinue disposition of Registrable
Securities until it has received copies of a supplemented or amended Prospectus
correcting the Misstatement (it being understood that the Company hereby
covenants to prepare and file such supplement or amendment as soon as
practicable after the time of such notice), or until it is advised in writing by
the Company that the use of the Prospectus may be resumed.
9. Restrictions.
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9.1 Restrictions on Public Sale by Holder of Registrable Securities.
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To the extent not inconsistent with applicable law, each holder of
Registrable Securities agrees, if requested by the managing underwriter, to
enter into an agreement with such managing underwriter not to effect any
public or private sale or distribution of any equity securities of the
Company, including a sale pursuant to Rule 144 or Rule 144A under the
Securities Act (except as part of such underwritten registration), during
the 10-day period prior to, and during the 180-day period beginning on, the
closing date of each underwritten offering made of the Common Stock to the
extent timely notified in writing by the Company or the managing
underwriter; provided, however, such Holder shall not be obligated to enter
such agreement unless all the executive officers and directors of the
Company and each holder of the Common Stock who beneficially owns shares of
the Common Stock equal to or greater than the shares of Common Stock
beneficially owned by the Holder (including any shares issuable upon the
exercise of the Warrants) and such Holder has had the opportunity to have
its shares included in such registration. The foregoing provisions of this
Section 9.1 shall not apply to any holder of Registrable Securities if such
holder is prevented by applicable statute or regulation from entering any
such agreement; provided, however, that any such holder shall undertake, in
its request to participate in any such underwritten offering, not to effect
any public sale or distribution of the Registrable Securities commencing on
the date of sale of such Registrable Securities unless it has provided 45
days' prior written notice of such sale or distribution to the managing
underwriter.
9.2 Restrictions on Sale by the Company and Other Persons. The
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Company agrees (A) not to effect any public or private sale or distribution
of any securities substantially similar to the Registrable Securities being
registered, or any securities convertible into or exchangeable or
exercisable for such securities, during the 10-day period prior to, and
during the 20-day period beginning on, the closing date of an
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underwritten offering made pursuant to a Demand Registration Statement
(except as part of such underwritten registration or pursuant to
registrations on Form S-4 or S-8 or any successor forms) and (B) that any
agreement pursuant to which the Company issues or agrees to issue any
privately placed securities shall contain provisions under which holders of
such securities agree not to effect any public sale or distribution of any
securities similar to those being registered, or any securities convertible
into or exchangeable or exercisable for such securities during such period
(except pursuant to registrations on Form S-4 or S-8).
10. Miscellaneous.
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10.1 Notices. All notices and other communications provided for or
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permitted hereunder shall be made in accordance with the notice provisions
contained in the Warrant Agreement.
10.2 Successors and Assigns. This Agreement shall inure to the
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benefit of and be binding upon the successors and assigns of the Company.
The obligations of the Company under this Agreement may be not assigned by
the Company without the prior written consent of the Holders who hold a
majority of the Registrable Securities, except to any purchaser of all or
substantially all of the assets of the Company that assumes the Company's
obligations hereunder. The Holders may assign or transfer their rights and
obligations under this Agreement only in connection with the assignment,
transfer or sale of the Warrants or Registrable Securities.
10.3 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.
10.4 Governing Law. This Agreement shall be governed by and
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construed in accordance with the laws of the State of Texas.
10.5 Amendment. This Agreement may be amended only by a written
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instrument executed by the Company and Holders who hold a majority of the
Registrable Securities.
10.6 Termination. This Agreement shall terminate and the
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registration rights granted hereunder shall expire on the date that is two
(2) years following the date on which the last Warrant is exercised or
expires; provided that such termination and expiration shall not affect
registration rights exercised prior to such date and the Company's
obligation to indemnify any Holder under Section 7.
10.7 Severability. If any provision of this Agreement shall be
------------
found by any court of competent jurisdiction to be invalid or
unenforceable, such provision shall, to the maximum extent allowable by
law, be modified by such court so that it becomes enforceable and, as
modified, shall be enforced as any other provision hereof, all the other
provisions hereof continuing in full force and effect.
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10.8 Headings. The headings contained in this Agreement are for
--------
reference purposes only and shall not in any way affect the meaning or
interpretation of this Agreement.
10.9 Entire Agreement. This Agreement and the Warrant Agreement
----------------
constitutes the entire agreement of the parties with respect to the subject
matter hereof and supersedes all prior and contemporaneous understandings,
whether written or oral.
[Balance of Page Intentionally Left Blank]
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first written above.
COMPANY:
RF Monolithics, Inc.
By: /s/ Xxxxx X. Xxxx
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Name: Xxxxx X. Xxxx
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Title: President
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HOLDER:
Xxxxx Fargo Business Credit, Inc.
By: /s/ Xxxxxxxx X. XxXxxxxx
----------------------------------
Name: Xxxxxxxx X. XxXxxxxx
----------------------------------
Title: Assistant Vice President
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