Exhibit 4.8
-----------
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (this "Agreement") is made and entered
---------
into this 11/th/ day of December, 2000, by and among RF Monolithics, Inc., a
Delaware corporation (the "Company"), and the Persons whose names are set forth
-------
on the signature page(s) hereof (as that term is defined in the next paragraph)
(collectively, the "Stockholders").
------------
Background. The Company has entered into a Unit Subscription Agreement of
----------
even date herewith (as amended, the "Subscription Agreement") with the
----------------------
Stockholders pursuant to which the Company will issue to the Stockholders an
aggregate of 533,332 Units, each Unit consisting of one share of common stock of
the Company ("Common Stock") and one common stock purchase warrant (each a
------------
"Warrant"), each Warrant entitling the holder thereof to purchase one Underlying
--------
Share. An aggregate of 533,332 authorized but unissued shares of Common Stock
are reserved for issuance upon exercise of the Warrants.
In consideration of the background transactions and the mutual covenants
and agreements herein set forth, the parties to this Agreement hereby agree,
effective at the Effective Date (as defined below), subject to the terms and
conditions hereinafter set forth, as follows:
1. Definitions. As used herein, unless the context otherwise requires, the
-----------
following terms have the following respective meanings:
Agreement: As defined in the introductory paragraph of this Agreement.
----------
Commission: The U.S. Securities and Exchange Commission or any other
-----------
governmental authority at the time administering the Securities Act or the
Exchange Act.
Common Stock: As defined in the paragraph of this Agreement entitled
-------------
"Background."
Company: As defined in the introductory paragraph of this Agreement.
--------
Effective Date: The date on which Common Stock and Warrants are issued to
---------------
the Stockholders.
Exchange Act: The U.S. Securities Exchange Act of 1934, as amended, or any
-------------
similar or successor federal statute, and the rules and regulations of the
Commission thereunder, all as the same shall be in effect at the time. Reference
to a particular section of the Exchange Act shall include a reference to the
comparable section, if any, of any such similar or successor federal statute.
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 Registration Rights
Agreement, dated the date hereof, between the Company and ▇▇▇▇▇ Fargo Business
Credit, Inc. (the "▇▇▇▇▇ Fargo Registration 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 stock split or in connection with a combination of shares,
recapitalization, merger, consolidation or other reorganization or otherwise.
Person: A corporation, an association, a partnership, a limited liability
-------
company, an individual, a joint venture, a trust or estate, an unincorporated
organization, or a government or any department or agency thereof.
Registrable Securities: (a) Any shares of Common Stock issued to the
-----------------------
Stockholders pursuant to the Subscription Agreement and any Underlying Shares
and (b) any securities issued or issuable with respect to any Common Stock
referred to in the foregoing clauses by way of stock dividend or stock split or
in connection with a combination of shares, recapitalization, merger,
consolidation or other reorganization or otherwise. As to any particular
Registrable Securities, once issued, such securities shall cease to be
Registrable Securities when (v) they may be sold without restriction pursuant to
Rule 144(k) (or any successor provision) under the Securities Act 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 (or similar restrictions on transfer) and the securities are
not subject to any "underwriter lock-ups" (or similar restrictions), (w) a
registration statement with respect to the sale of such securities in the United
States shall have become effective under the Securities Act and such securities
shall have been disposed of in accordance with such registration statement, (x)
they shall have been transferred pursuant to Rule 144 (or any successor
provision) under the Securities Act, (y) they shall have been otherwise
transferred, new certificates for them not bearing a legend restricting further
transfer shall have been delivered by the Company and subsequent disposition of
them shall not require registration or qualification under the Securities Act or
any similar state law then in force, or (z) they shall have ceased to be
outstanding. While the Warrants outstanding from time to time are not
Registrable Securities for the purpose of registration, holders of Warrants
shall, for purposes of giving of notices or the calculation of percentages of
Registrable Securities, be treated as the holders of the Underlying Shares. In
addition, for purposes of calculation of percentages of Registrable Securities,
all Warrants shall be treated as the same number of Underlying Shares which may
be purchased upon exercise thereof.
Registration Expenses: All expenses incident to the Company's performance
----------------------
of or compliance with Section 2 of this Agreement, including, without
limitation, all registration, filing and listing or Nasdaq fees, all fees and
expenses of complying with securities or blue sky laws, all word processing,
duplicating and printing expenses, all messenger and delivery expenses, the fees
and disbursements of counsel for the Company and of its independent public
accountants, including without limitation the expenses of any special audits or
"cold comfort" letters required by or incident to such performance and
compliance, premiums and other costs of policies of insurance, if any, against
liabilities arising out of the public offering of the Registrable Securities
being registered, any fees and disbursements of underwriters customarily paid by
issuers or sellers of securities and the fees and disbursements of any counsel
and accountants retained by the holder or holders of the Registrable Securities
being registered, up to $25,000, but excluding underwriting discounts and
commissions, transfer taxes, if any.
Securities Act: The U.S. Securities Act of 1933, as amended, or any similar
---------------
or successor federal statute, and the rules and regulations of the Commission
thereunder, all as the same shall
2
be in effect at the time. References to a particular section of the Securities
Act shall include a reference to the comparable section, if any, of any such
similar or successor federal statute.
Subscription Agreement: As defined in the paragraph of this Agreement
-----------------------
entitled "Background."
Stockholders: As defined in the introductory paragraph of this Agreement.
-------------
Underlying Shares: All shares of Common Stock (or Other Securities as
-----------------
defined in the Warrant), as adjusted, issued or issuable upon exercise of
Warrants.
Warrants: As defined in the paragraph of this Agreement entitled
---------
"Background."
2. Registration under Securities Act
2.1. (a) Registration on Request. Upon the written request of the holder
-----------------------
or holders of thirty percent (30%) or more of the Registrable Securities, at any
time after the first anniversary of the Effective Date, that the Company effect
the registration under the Securities Act in connection with a sale of such
shares in the United States of all or part of such holders' Registrable
Securities and specifying the intended method of disposition thereof (including
whether or not such disposition is intended to be effected as an underwritten
offering), the Company will promptly give written notice of such requested
registration to all other holders of Registrable Securities and thereupon the
Company will use its best efforts to effect promptly the registration under the
Securities Act of:
(i) the Registrable Securities which the Company has been so
requested to register by the holder or holders submitting the request, and
(ii) all other Registrable Securities which the Company has been
requested to register by the holder or holders thereof by written request
given to the Company within fifteen (15) days after the giving of such
written notice by the Company (which request shall specify the intended
method of disposition of such Registrable Securities), all to the extent
requisite to permit the disposition (in accordance with the intended
methods thereof as aforesaid) of the Registrable Securities so to be
registered.
(b) Priority in Requested Registrations. If a requested registration
-----------------------------------
pursuant to this Section 2.1 involves an underwritten offering, and the managing
underwriter shall advise the Company in writing (with a copy to each holder of
Registrable Securities requesting registration) that, in its opinion, the number
of Registrable Securities and other securities of the Company held by any other
party 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
party (including any securities proposed to be issued and sold by the Company)
only to the extent that the number of shares which the Company is advised can be
so sold in (or during the time of) such offering
3
exceeds the number of Registrable Securities to be included in such
registration. If a requested registration pursuant to this Section 2.1 involves
an underwritten offering, and the managing underwriter shall advise the Company
in writing (with a copy to each holder of Registrable Securities 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 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 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
(b).
(c) Registration Statement Form. Registrations under this Section 2.1
---------------------------
shall be on such appropriate registration form of the Commission (i) for which
the Company qualifies, and which the Company's counsel (after consultation with
counsel or counsels for the holders of the Registrable Securities) deems
appropriate, and (ii) as shall permit the disposition of such Registrable
Securities in accordance with the intended method or methods of disposition
specified in the request for such registration. The Company agrees to include in
any such registration statement all information as to the holders of the
Registrable Securities to be registered which the holders of the Registrable
Securities being registered shall reasonably request or which shall be required
by applicable law.
(d) Expenses. The Company will pay all Registration Expenses
--------
incurred in connection with any registration requested pursuant to this Section
2.1 that the Company is obligated to effect, whether or not such registration is
effected.
(e) Effected Registration Statement. A registration requested
-------------------------------
pursuant to this Section 2.1 shall not be deemed to have been effected unless a
registration statement with respect thereto has become effective except: (i) if
the registration statement is withdrawn prior to its effectiveness pursuant to
the request of all of the holders of Registrable Securities who have requested
the inclusion in such registration statement of some or all of their Registrable
Securities, (ii) if, after the registration statement has become effective, such
registration is interfered with by any stop order, injunction or other order or
requirement of the Commission or other governmental agency or court for any
reason, and such stop order, injunction or other order or requirement results
from any action or inaction of a holder or holders of Registrable Securities, or
(iii) if the conditions to closing specified in the purchase agreement or
underwriting agreement entered into in connection with such registration are not
satisfied due to a failure by a holder of Registrable Securities to satisfy a
condition required to be satisfied by such holder pursuant to the purchase
agreement or underwriting agreement.
(f) Selection of Underwriter. If a requested registration pursuant
------------------------
to this Section 2.1 involves an underwritten offering, the underwriter or
underwriters thereof shall be selected by the holders of a majority of the
Registrable Securities to be so registered.
4
(g) Limitation on Registrations. The Company's obligations under this
---------------------------
Section 2.1 shall be limited to effecting two (2) registrations within the
meaning of paragraph (e) of this Section 2.1; provided, however, that (i) if all
of the holders who have requested the inclusion of Registrable Securities held
by them in a registration requested under this Section 2.1 withdraw such request
prior to the time the registration statement has become effective and any or all
of such persons pay all Registration Expenses relating thereto, such proposed
registration shall not count as one of the registrations provided for by this
Section 2.1; and (ii) if a registration is deemed not to be effected pursuant to
paragraph (e) of this Section 2.1 because a condition to closing specified in
the purchase agreement or underwriting agreement entered into in connection with
such registration is not satisfied due to a failure by a holder of Registrable
Securities to satisfy a condition required to be satisfied by such holder
pursuant to such agreement and one or more of the holders of Registrable
Securities elects to pay (and shall actually have paid) all Registration
Expenses relating thereto, such registration shall not count as one of the
registrations provided for by this Section 2.1.
(h) Postponement. The Company may postpone the filing of any 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.
2.2. Incidental Registration.
-----------------------
(a) Right to Incidental Registration. If the Company at any time
proposes to register any of its securities under the Securities Act (other than
by a registration on Form S-8 or Form S-4 or any successor or similar form and
other than pursuant to Section 2.1 of this Agreement), whether or not for sale
for its own account, it will each such time give prompt written notice to all
holders of Registrable Securities of its intention to do so and of such holders'
rights under this Section 2.2. Upon the written request of any such holder made
within fifteen (15) days after the receipt of any such notice (which request
shall specify the Registrable Securities intended to be disposed of by such
holder and the intended method of disposition thereof), the Company will use its
best efforts to effect the registration under the Securities Act in connection
with a sale of such shares in the United States of all Registrable Securities
which the Company has been so requested to register by the holders of
Registrable Securities, to the extent requisite to permit the disposition (in
accordance with the intended methods thereof as aforesaid) of the Registrable
Securities so to be registered, provided that if, at any time after giving
written notice of its intention to register any securities and prior to the
effective date of the registration statement filed in connection with such
registration, the Company shall determine for any reason, after consultation
with the holders of Registrable Securities which have requested inclusion in
such registration, not to register or to delay such registration, the Company
may, at its election, give written notice of such determination to each holder
of Registrable Securities and, thereupon, (i) in the case of a determination not
to register, shall be relieved of its obligation to register any Registrable
Securities in connection with such registration (but not from its obligation to
pay the Registration Expenses in connection
5
therewith), without prejudice, however, to the rights of any holder or holders
of Registrable Securities entitled to do so to request that such registration be
effected as a registration under Section 2.1 above, and (ii) in the case of a
determination to delay registering, shall be permitted to delay registering any
Registrable Securities for the same period as the delay in registering such
other securities. No registration effected under this Section 2.2 shall relieve
the Company of its obligation to effect any registration upon request under
Section 2.1 above. The Company will pay all Registration Expenses in connection
with each registration of Registrable Securities requested pursuant to this
Section 2.2.
(b) Priority in Incidental Registrations. If (i) a registration
------------------------------------
pursuant to this Section 2.2 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 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 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 public offering unless all shares of Common
Stock proposed to be sold by the Company for its own account have been included
in such underwritten public offering, and (2) after the Company has included its
own shares of Common Stock, the holders of Registrable Securities and Persons
other than Stockholders ("Other Persons") 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 of Registrable Securities and Other
Registrable Securities 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 offering that was commenced as a
result of the exercise of demand registration rights by Other Persons, the Other
Persons commencing such registration and the holders of Registrable Securities
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
Persons commencing such Registration and thereafter among the holders of
Registrable Securities. If, however, the registration was initiated by the
Company within one hundred twenty (120) days of a requested 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.
2.3. Form S-3 Registration. In case the Company shall receive from any
---------------------
holder or holders of ten percent (10%) or more of the Registrable Securities
having an aggregate fair market value of at least $500,000 on the date of
request a written request or requests that the Company effect a registration on
Form S-3 (or any successor to Form S-3) or any similar short-form registration
statement not involving an underwriting and any related qualification or
compliance with respect to all or part of the Registrable Securities owned by
such holder or holders, the Company will:
6
(a) promptly give written notice of the proposed registration, and
any related qualifications or compliance, to all other holders of
Registrable Securities; and
(b) as soon as practicable, effect such registration and all such
qualifications and compliance as may be so requested and as would permit or
facilitate the sale and distribution of all or such portion of such
holder's or holders' Registrable Securities as are specified in such
request, together with all or such portion of the Registrable Securities of
any other holder or holders joining in such request as are specified in a
written request given within fifteen (15) days after receipt of such
written notice from the Company; provided, however, that the Company shall
not be obligated to effect any such registration, qualification or
compliance pursuant to this Section 2.3:
(i) if Form S-3 is not available for such offering by such
holders; or
(ii) if within thirty (30) days of receipt of a written request
from such holder or holders pursuant to this Section 2.3, the Company
gives notice to such holder or holders that the Company has already
taken active steps to make a public offering within ninety (90) days
of the date of such receipt; or
(iii) in any particular jurisdiction in which the Company would
be required to qualify to do business or to execute a general consent
to service of process in effecting such registration, qualification or
compliance; or
(iv) if the Company has effected two or more registrations on
Form S-3 pursuant to this Section 2.3 in the immediately preceding 365
days; and
(c) Subject to the foregoing, the Company shall file a Form S-3
registration statement covering the Registrable Securities as soon as
practicable after receipt of the request or requests of such holders.
Registrations effected pursuant to this Section 2.3 shall not be counted as
demands for registration or registrations effected pursuant to Section 2.1.
2.4. Registration Procedures. If and whenever the Company is required to
-----------------------
use its best efforts to effect the registration of any Registrable Securities
under the Securities Act as provided in Section 2.1, 2.2 or 2.3 above, the
Company will, as expeditiously as possible:
(a) prepare and (as soon thereafter as possible or in any event no
later than fifty (50) days after the end of the period within which requests for
registration may be given to the Company (ninety (90) days in the case of
requests for registration made during the last quarter of a fiscal year) or such
longer period as the Company shall in good faith require to produce the
financial statements required in connection with such registration) file with
the Commission the requisite registration statement to effect such registration
and thereafter use its best efforts to cause such registration statement to
become effective, provided that the Company may discontinue any registration of
its securities which are not Registrable Securities (and, under the
circumstances specified in Section 2.2(a) above, its securities which are
Registrable Securities) at any time prior to the effective date of the
registration statement relating thereto;
7
(b) prepare and file with the Commission such amendments and
supplements to such registration statement and the prospectus used in connection
therewith as may be necessary to keep such registration statement effective and
to comply with the provisions of the Securities Act with respect to the
disposition of all securities covered by such registration statement until such
time as all of such securities have been disposed of in accordance with the
intended methods of disposition by the seller or sellers thereof as set forth in
such registration statement but in no event for a period which would exceed one
(1) year from the date on which the registration statement became effective;
(c) furnish to each seller of Registrable Securities covered by such
registration statement such number of conformed copies of such registration
statement and of each amendment and supplement thereto (in each case including
all exhibits), such number of copies of the prospectus contained in such
registration statement (including each preliminary prospectus and any summary
prospectus) and any other prospectus filed under Rule 424 under the Securities
Act, in conformity with the requirements of the Securities Act, and such other
documents, as such seller may reasonably request;
(d) use its best efforts to register or qualify all Registrable
Securities and other securities covered by such registration statement under
such other securities or blue sky laws of such jurisdictions in the United
States as each seller thereof shall reasonably request, to keep such
registration or qualification in effect for so long as such registration
statement remains in effect, and take any other action which may be reasonably
necessary or advisable to enable such seller to consummate the disposition in
such jurisdictions of the securities owned by such seller, except that the
Company shall not for any such purpose be required to either qualify generally
to do business as a foreign corporation, or subject itself to taxation or to
general service of process in any jurisdiction wherein it would not, but for the
requirements of this clause (d), be obligated to be so qualified or subject to
taxation or service of process, other than as to matters and transactions
related to such registration or qualification;
(e) use its best efforts to cause all Registrable Securities covered
by such registration statement to be registered with or approved by such other
United States governmental agencies or authorities as may be necessary to enable
the seller or sellers thereof to consummate the disposition of such Registrable
Securities;
(f) furnish to each seller of Registrable Securities a copy of each
of the following, if any, addressed to the underwriters:
(i) an opinion of counsel for the Company, dated the effective
date of. such registration statement (and, if such registration
includes an underwritten public offering, dated the date of the
closing under the underwriting agreement) reasonably satisfactory in
form and substance to such seller, and
(ii) a "comfort" letter, dated the effective date of such
registration statement (and, if such registration includes an
underwritten public offering, dated the date of the closing under the
underwriting agreement), signed by the independent public accountants
who have certified the Company's financial statements included in such
registration statement, covering substantially the same matters with
respect to such registration statement (and the prospectus included
8
therein) and, in the case of the accountants' letter, with respect to
events subsequent to the date of such financial statements, as are
customarily covered in opinions of issuer's counsel and in
accountants' letters delivered to the underwriters in underwritten
public offerings of securities and, in the case of the accountants'
letter, such other financial matters, and, in the case of the legal
opinion, such other legal matters, as such seller (or the
underwriters, if any) may reasonably request;
(g) (i) notify each seller of Registrable Securities covered by such
registration statement, their counsel and the managing underwriters, if any,
promptly, and (if requested in writing by any such Person), confirm such notice
in writing: (A) when a registration statement or any amendment thereto has been
filed, and, with respect to a registration statement or any post-effective
amendment, when the same has become effective, (B) of any request by the
Commission or any other Federal or state governmental authority for amendments
or supplements to a registration statement or related prospectus or for
additional information, (C) of the issuance by the Commission of any stop order
suspending the effectiveness of a registration statement or the initiation of
any proceedings for that purpose, (D) if at any time the representations and
warranties of the Company contained in any agreement (including any underwriting
agreement) contemplated by this Section 2 cease to be true and correct, (E) of
the receipt by the Company of any notification with respect to the suspension of
the qualification or exemption from qualification of any of the Registrable
Securities for sale in any jurisdiction, or the initiation or threatening of any
proceeding for such purpose, and (F) of the happening of any event that makes
any statement made in such registration statement or related prospectus or any
document incorporated or deemed to be incorporated therein by reference untrue
in any material respect or that requires the making of any changes to such
registration statement, prospectus or documents so that, in the case of the
registration statement, it will not contain any untrue statement of a material
fact or omit to state any material fact required to be stated therein or
necessary to make the statements therein not misleading, and that in the case of
the prospectus, it will not contain any untrue statement of a material fact or
omit to state any material fact necessary in order to make the statements
therein, in light of the circumstances under which they were made, not
misleading, and (ii) at the request of any such seller promptly prepare and
furnish to such seller a reasonable number of copies of a supplement to or an
amendment of such prospectus as may be necessary (and a post-effective amendment
to such registration statement as may be necessary in connection therewith) so
that, as thereafter delivered to the purchasers of such securities, such
prospectus shall not include an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading in the light of the circumstances under which
they were made;
(h) use its best efforts to obtain the withdrawal of any order
suspending the effectiveness of a registration statement, or the lifting of any
suspension of the qualification (or exemption from qualification) of any of the
Registrable Securities for sale in any jurisdiction;
(i) if requested by the managing underwriters, if any, or the holders
of a majority in interest of the Registrable Securities being sold in connection
with an underwritten offering, promptly include in a prospectus supplement or
post-effective amendment such information as the managing underwriters, if any,
and such holders may reasonably request in order to permit the intended method
of distribution of such securities and make all required
9
filings of such prospectus supplement or such post-effective amendment as soon
as practicable after the Company has received such request;
(j) otherwise use its best efforts to comply with all applicable
rules and regulations of the Commission, and make available to its security
holders, as soon as reasonably practicable, a historical earnings statement
covering the period of at least twelve (12) months, but not more than eighteen
(18) months, beginning with the first month of the first full fiscal quarter
after the effective date of such registration statement, which earnings
statement shall satisfy the provisions of Section 11(a) of the Securities Act,
and will furnish to each such seller at least three business days prior to the
filing thereof a copy of any amendment or supplement to such registration
statement or prospectus and shall not file any thereof to which any such seller
shall have reasonably objected on the grounds that such amendment or supplement
does not comply in all material respects with the requirements of the Securities
Act or the rules or regulations thereunder;
(k) provide and cause to be maintained a transfer agent and registrar
for all Registrable Securities covered by such registration statement from and
after a date not later than the effective date of such registration statement;
(l) use its best efforts to list all Registrable Securities covered
by such registration statement on any securities exchange or trading system on
which any of the Common Stock is then listed;
(m) cooperate with the selling holders of Registrable Securities and
the managing underwriters, if any, to facilitate the timely preparation and
delivery of certificates representing Registrable Securities to be sold, which
certificates shall be in a form eligible for deposit with The Depository Trust
Company; and enable such Registrable Securities to be in such denominations and
registered in such names as the managing underwriters, if any, or holders may
request in writing at least two (2) business days prior to any sale of
Registrable Securities;
(n) make every reasonable effort to obtain the withdrawal of any
order suspending the effectiveness of any registration statement at the earliest
possible moment; and
(o) cooperate and assist in any filings required to be made with the
NASD and in the performance of any due diligence investigation by any
underwriter (including any "qualified independent underwriter" that is required
to be retained in accordance with the rules and regulations of the NASD).
The Company may require each seller of Registrable Securities as to which
any registration is being effected to furnish the Company such information
regarding such seller and the distribution of such securities as the Company may
from time to time reasonably request in writing.
Each holder of Registrable Securities agrees that, upon receipt of any
notice from the Company of the happening of any event of the kind described in
clause (g) (i) (C) or (F) of this Section 2.4, such holder will forthwith
discontinue such holder's disposition of Registrable Securities pursuant to the
registration statement relating to such Registrable Securities until such
holder's receipt of the copies of the supplemented or amended prospectus
contemplated by
10
clause (g) of this Section 2.4 and, if so directed by the Company, will deliver
to the Company (at the Company's expense) all copies, other than permanent file
copies, then in such holder's possession of the prospectus relating to such
Registrable Securities current at the time of receipt of such notice.
2.5. Underwritten Offerings.
(a) Cooperation; Underwriting Agreements. If requested by the
------------------------------------
underwriters for any underwritten offering by holders of Registrable Securities
pursuant to a registration requested under Section 2.1 or 2.3 above, the Company
will enter into an underwriting agreement with such underwriters for such
offering, such agreement to contain such representations and warranties by the
Company and such other terms as are generally prevailing in agreements of this
type, including, without limitation, indemnities to the effect and to the extent
provided in Section 2.7 below. The holders of the Registrable Securities will
reasonably cooperate with the Company in the negotiation of the underwriting
agreement, provided that nothing herein contained shall diminish the obligations
of the Company under this Agreement. The holders of Registrable Securities to be
distributed by such underwriters shall be parties to such underwriting agreement
and any necessary or appropriate custody agreements and execute appropriate
powers of attorney, and may, at their option, require that any or all of the
representations and warranties by, and the other agreements on the part of, the
Company to and for the benefit of such underwriters shall also be made to and
for the benefit of such holders of Registrable Securities and that any or all of
the conditions precedent to the obligations of such underwriters under such
underwriting agreement be conditions precedent to the obligations of such
holders of Registrable Securities. Any such holder of Registrable Securities
shall not be required to make any representations or warranties to or agreements
with the Company or the underwriters other than representations, warranties or
agreements regarding such holder, such holder's Registrable Securities and such
holder's intended method of distribution and any other representation required
by law.
(b) Incidental Underwritten Offerings. If the Company at any time
---------------------------------
proposes to register any of its securities under the Securities Act, as
contemplated by Section 2.2 above, and such securities are to be distributed by
or through one or more underwriters, the Company will, if requested by any
holder of Registrable Securities as provided in said Section 2.2 and subject to
the provisions of Section 2.2(b), arrange for such underwriters to include all
the Registrable Securities to be offered and sold by such holder among the
securities to be distributed by such underwriters. The holders of Registrable
Securities to be distributed by such underwriters shall be parties to the
underwriting agreement between the Company and such underwriters and any
necessary or appropriate custody agreements and execute appropriate powers of
attorney, and may, at their option, require that any or all of the
representations and warranties by, and the other agreements on the part of, the
Company to and for the benefit of such underwriters shall also be made to and
for the benefit of such holders of Registrable Securities and that any or all of
the conditions precedent to the obligations of such underwriters under such
underwriting agreement be conditions precedent to the obligations of such
holders of Registrable Securities. Any such holder of Registrable Securities
shall not be required to make any representations or warranties to or agreements
with the Company or the underwriters other than representations, warranties or
agreements regarding such holder, such holder's Registrable Securities and such
holder's intended method of distribution and any other representation required
by law.
11
2.6. Preparation; Reasonable Investigation. In connection with the
-------------------------------------
preparation and filing of each registration statement under the Securities Act
pursuant to this Agreement, the Company will give the holders of Registrable
Securities registered under such registration statement, the underwriters, if
any, and their respective counsel and accountants, the opportunity to
participate in the preparation of such registration statement, each prospectus
included therein or filed with the Commission, and each amendment thereof or
supplement thereto, and will give each of them such access to its books and
records and such opportunities to discuss the business of the Company with its
officers and the independent public accountants who have certified its financial
statements as shall be necessary to conduct a reasonable investigation within
the meaning of the Securities Act.
2.7. Indemnification.
---------------
(a) Indemnification by the Company. In the event of any registration
of any securities of the Company under the Securities Act, the Company will, and
hereby does, indemnify and hold harmless the seller of any Registrable
Securities covered by such registration statement, its directors and officers,
each other Person who participates as an underwriter in the offering or sale of
such securities and each other Person, if any, who controls such seller or any
such underwriter within the meaning of the Securities Act, against any losses,
claims, damages or liabilities, joint or several, to which such seller or any
such director or officer or underwriter or controlling Person may become subject
under the Securities Act or otherwise, insofar as such losses, claims, damages
or liabilities (or actions or proceedings, whether commenced or threatened, in
respect thereof) arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact contained in any registration statement
under which such securities were registered under the Securities Act, any
preliminary prospectus, final prospectus or summary prospectus contained
therein, or any amendment or supplement thereto, or any omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, and the Company will
reimburse such seller and each such director, officer, underwriter and
controlling Person for any legal or any other expenses incurred by them in
connection with investigating or defending any such loss, claim, liability,
action or proceeding; provided that the Company shall not be liable in any such
case to the extent that any such loss, claim, damage, liability (or action or
proceeding in respect thereof) or expense arises out of or is based upon an
untrue statement or omission made in such registration statement, any such
preliminary prospectus, final prospectus, summary prospectus, amendment or
supplement in reliance upon and in conformity with written information furnished
to the Company through an instrument duly executed by such seller specifically
stating that it is for use in the preparation thereof and, provided further that
the Company shall not be liable to any Person who participates as an underwriter
in the offering or sale of Registrable Securities or any other Person, if any,
who controls such underwriter within the meaning of the Securities Act, in any
such case to the extent that any such loss, claim, damage, liability (or action
or proceeding in respect thereof) or expense arises out of such Person's failure
to send or give a copy of the final prospectus, as the same may be then
supplemented or amended, to the Person asserting an untrue statement or alleged
untrue statement or omission or alleged omission at or prior to the written
confirmation of the sale of Registrable Securities to such Person if such
statement or omission was corrected in such final prospectus. Such indemnity
shall remain in full force and effect, regardless of any investigation made by
or on behalf of such seller or any such director, officer, underwriter or
controlling Person and shall survive the transfer of such securities by such
seller and the termination or expiration of this Agreement.
12
(b) Indemnification by the Sellers. The seller of any Registrable
Securities covered by such registration statement will, and hereby does,
indemnify and hold harmless (in the same manner and to the same extent as set
forth in subparagraph (a) of this Section 2.7) the Company, each director of the
Company, each officer of the Company and each other Person, if any, who controls
the Company within the meaning of the Securities Act, with respect to any
statement or alleged statement in or omission or alleged omission from such
registration statement, any preliminary prospectus, final prospectus or summary
prospectus contained therein, or any amendment or supplement thereto, if such
statement or alleged statement or omission or alleged omission was made in.
reliance upon and in conformity with written information furnished to the
Company through an instrument duly executed by such seller specifically stating
that it is for use in the preparation of such registration statement,
preliminary prospectus, final prospectus, summary prospectus, amendment or
supplement. Such indemnity shall remain in full force and effect, regardless of
any investigation made by or on behalf of the Company or any such director,
officer or controlling Person and shall survive the transfer of such securities
by such seller and the termination or expiration of this Agreement. The
obligations of any seller under this subparagraph (b) shall be limited to the
net proceeds to such seller of the Registrable Securities sold pursuant to the
registration statement to which the loss, claim, damage, judgment, expense or
liability relates.
(c) Contribution. If the indemnification provided for in
subparagraphs (a) and (b) above for any reason is held by a court of competent
jurisdiction to be unavailable to an indemnified party in respect of any losses,
claims, damages, judgments, expenses or liabilities referred to therein, then
each indemnifying party under such paragraph, in lieu of indemnifying such
indemnified party thereunder, shall contribute to the amount paid or payable by
such indemnified party as a result of such losses, claims, damages, judgments,
expenses or liabilities in such proportion as is appropriate to reflect the
relative fault, if any, of the Company and the other selling holders in
connection with the statements or omissions which resulted in such losses,
claims, damages, expenses or liabilities, as well as any other relevant
equitable considerations. The relative fault of the Company and the selling
holders shall be determined by reference to, among other things, whether the
untrue statement or alleged untrue statement of a material fact or the omission
or alleged omission to state a material fact relates to information supplied by
the Company or the selling holders and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
omission. The Company, the holders, and the underwriters agree that it would not
be just and equitable if contribution pursuant to this subparagraph (c) were
determined by pro rata or per capita allocation or by any other method of
allocation which does not take account of the equitable considerations referred
to in the immediately preceding sentence. The obligations of any seller under
this subparagraph (c) are several, not joint, and shall be limited to an amount
equal to the net proceeds to such seller of Registrable Securities sold pursuant
to the registration statement to which the loss, claim, damage, judgment expense
or liability relates. No person found 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.
(d) Notices of Claims and Procedures. Promptly after receipt by an
indemnified Person of notice of the commencement of any action or proceeding
involving a claim referred to in the preceding subparagraphs of this Section
2.7, such indemnified Person will, if a claim in respect thereof is to be made
against an indemnifying party, give written notice to the latter of the
commencement of such action, provided that the failure of any indemnified
13
Person to give notice as provided herein shall not relieve the indemnifying
party of his, her or its obligations under the preceding subparagraphs of this
Section 2.7, except to the extent that the indemnifying party is actually
prejudiced by such failure to give notice. In case any such action is brought
against an indemnified Person, unless in such indemnified Person's reasonable
judgment a conflict of interest between such indemnified Person and such
indemnifying party may exist in respect of such claim, the indemnifying party
shall be entitled to participate in and to assume the defense thereof, jointly
with any other indemnifying party similarly notified to the extent that it may
wish, with counsel reasonably satisfactory to such indemnified Person, and after
notice from the indemnifying party to such indemnified Person of its election so
to assume the defense thereof, the indemnifying party shall not be liable to
such indemnified Person for any legal or other expenses subsequently incurred by
the latter in connection with the defense thereof other than reasonable costs of
investigation. No indemnifying party shall, without the consent of the
indemnified Person, consent to entry of any judgment or enter into any
settlement which does not include as an unconditional term thereof the giving by
the claimant or plaintiff to such indemnified Person of a release from all
liability in respect to such claim or litigation and otherwise in form and
substance reasonably satisfactory to the indemnified Person.
(e) Indemnification Payments. The indemnification required by this
Section 2.7 shall be made by prompt payments of the amount thereof during the
course of the investigation or defense, as and when bills are received or
expense, loss, damage or liability is incurred.
(f) Not Exclusive. The indemnification and contribution provisions of
Section 2.7 are in addition to any other rights to indemnification or
contribution that an indemnified party may have under law or contract.
2.8. Adjustments Affecting Registrable Securities. The Company will not
--------------------------------------------
effect or permit to occur any combination or subdivision of shares which would
materially adversely affect the ability of the holders of Registrable Securities
to include such Registrable Securities in any registration of its securities
contemplated by this Section 2 or the marketability of such Registrable
Securities under any such registration.
3. Rules 144 and 144A. The Company will file the reports required to be filed
------------------
by it under the Securities Act and the Exchange Act and the rules and
regulations adopted by the Commission thereunder (or, if the Company is not
required to file such reports, the Company will, upon the request of any holder
of Registrable Securities, make publicly available other information) and will
take such further action as any holder of Registrable Securities may reasonably
request, all to the extent required from time to time to enable such holder to
sell Registrable Securities without registration under the Securities Act within
the limitation of the exemptions provided by (a) Rules 144 and 144A under the
Securities Act, as such Rules may be amended from time to time, or (b) any
similar rule or regulation hereafter adopted by the Commission. Upon the request
of any holder of Registrable Securities, the Company will deliver to such holder
a written statement as to whether it has complied with such requirements.
4. (a) Restrictions on Public Sale by Holder of Registrable Securities. 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 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
14
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
Company's 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 into such agreement unless all the executive officers and
directors of the Company and each person who beneficially owns 5% or more of the
Company's outstanding shares of Common Stock and such Holder has had the
opportunity to have such Holder's shares included in such registration. The
foregoing provisions of this Section 4 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.
(b) Restrictions on Sale by the Company and Other Persons. The 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 180-day period
beginning on, the closing date of an underwritten offering made pursuant to a
Registration Statement filed under Section 2.1(a) hereof (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).
5. Amendments and Waivers. This Agreement may be amended and the Company may
----------------------
take any action herein prohibited or omit to perform any act herein required to
be performed by it, only if the Company shall have obtained the written consent
to such amendment, action or omission to act, of the holder or holders of eighty
percent (80%) or more of the Registrable Securities at the time outstanding.
Each holder of Registrable Securities at the time or thereafter outstanding
shall be bound by a consent authorized by this Section 5.
6. Nominees for Beneficial Owners. In the event that any Registrable
------------------------------
Securities are held by a nominee for the beneficial owner thereof, the
beneficial owner thereof may, at his, her or its election, be treated as the
holder of such Registrable Securities for purposes of any request or other
action by any holder or holders of Registrable Securities pursuant to this
Agreement or any determination of any number or percentage of shares of
Registrable Securities held by any holder or holders of Registrable Securities
contemplated by this Agreement. If the beneficial owner of any Registrable
Securities so elects, the Company may require assurances reasonably satisfactory
to it of such owner's beneficial ownership of such Registrable Securities.
7. Notices. Any notice required or permitted hereunder shall be given in
-------
writing and shall be deemed effectively given upon (i) personal delivery, (ii)
delivery by fax (with answer back confirmed) or (iii) delivery by electronic
mail (with reception confirmed), addressed to a party at its address or sent to
the fax number or e-mail address shown below or at such other address, fax
15
number or e-mail address as such party may designate by three days advance
notice to the other party.
Any notice to the Stockholders shall be sent to the attention of each Person at
the addresses set forth on the signature page of the Subscription Agreement or
such address, or to the attention of such other Person or Persons, as a
Stockholder shall have furnished to the Company in writing, with a copy to:
▇▇▇▇ & Hessen LLP
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Fax Number: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇, Esq.
e-mail: ▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇.▇▇▇
Any notice to the Company shall be sent to:
RF Monolithics, Inc.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: President
Fax Number: (▇▇▇) ▇▇▇-▇▇▇▇
e-mail: ▇▇▇▇▇@▇▇▇.▇▇▇ and ▇▇▇▇▇▇@▇▇▇.▇▇▇
with a copy to:
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ LLP
Energy Plaza, 30th Floor
▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Fax Number: ▇▇▇-▇▇▇-▇▇▇▇
Email: ▇▇▇▇▇▇▇@▇▇▇▇▇▇▇.▇▇▇
or such other address, or to the attention of such other Person or Persons, as
the Company shall have furnished to each holder of Registrable Securities at the
time outstanding.
8. Assignment. This Agreement shall be binding upon and inure to the benefit
----------
of and be enforceable by the parties hereto and their respective successors and
assigns. In addition, and whether or not any express assignment shall have been
made, the provisions of this Agreement which are for the benefit of Stockholders
shall also be for the benefit of and enforceable by any subsequent holder of any
Registrable Securities who has executed a copy of this Agreement or otherwise
indicated its agreement to be bound hereby, subject to the provisions respecting
the minimum numbers or percentages of shares of Registrable Securities required
in order to be entitled to certain rights or take certain actions contained
herein. Without limitation on the Stockholders' rights to transfer Registrable
Securities, the Company acknowledges that any Stockholder may, at any time,
transfer any of the Registrable Securities which they may own, beneficially or
of record, to (a) their affiliates, or (b) their partner(s), investor(s),
security
16
holder(s) or beneficial holder(s) pursuant to their organization documents or
other agreements, and that, upon the consummation of any such transfer, the
provisions of this Agreement shall be binding upon and inure to the benefit of
each transferee of such Registrable Securities.
9. Descriptive Headings. The descriptive headings of the several sections and
--------------------
paragraphs of this Agreement are inserted for reference only and shall not limit
or otherwise affect the meaning hereof.
10. Governing Law. This Agreement shall be construed and enforced in accordance
-------------
with, and the rights of the parties shall be governed by, the laws of the State
of New York, U.S.A., without regard to principles of conflicts of laws.
5. Counterparts. This Agreement may be executed simultaneously in any number
------------
of counterparts, each of which shall be deemed an original, but all such
counterparts shall together constitute one and the same instrument.
6. Termination. This Agreement shall terminate only upon unanimous written
-----------
consent of the Company and the Stockholders; provided that each Stockholder may
terminate this Agreement by notice to the Company in the event such Stockholder
no longer owns beneficially any Registrable Securities.
7. Other Registration Rights. The Company shall not at any time grant
-------------------------
registration rights to any holder of shares of the Company's capital stock
(other than the rights granted to the Stockholders under this Agreement or to
certain Persons under the ▇▇▇▇▇ Fargo Registration Agreement) which are equal to
or more favorable to such holders than the rights set forth in this Agreement.
17
