EXHIBIT 10.3
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT ("Agreement") is made as of the 14th day
of December, 2007, by and between CalAmp Corp., a Delaware corporation (the
"Company"), and EchoStar Technologies Corporation, a Texas corporation
("EchoStar").
RECITALS
WHEREAS, on the date hereof, the Company and EchoStar are entering into a
Settlement Agreement (the "Settlement Agreement") providing for, among other
things, the issuance of (a) 1,000,000 shares of the Company's common stock
(the "Common Stock"), par value $.01 per share (the "Shares") and (b) a
warrant to purchase 350,000 shares of Common Stock (the "Warrant Shares");
and
WHEREAS, as contemplated by Section 3.1(a) of the Settlement Agreement,
EchoStar and the Company hereby agree that this Agreement shall govern the
rights of the Holder with respect to certain piggyback registration rights
relating to the Shares and Warrant Shares.
NOW, THEREFORE, in consideration of the mutual promises, covenants and
conditions hereinafter set forth, and other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the parties
hereto agree as follows:
1. Definitions. For purposes of this Agreement:
1.1 "Affiliate" means, with respect to any specified Person, any other
Person who or which, directly or indirectly, controls, is controlled by, or
is under common control with such specified Person, including without
limitation any general partner, officer, director, or manager of such Person
and any venture capital fund now or hereafter existing that is controlled by
one or more general partners or managing members of, or shares the same
management company with, such Person.
1.2 "Damages" means any loss, damage or liability (joint or several) to
which a party hereto may become subject under the Securities Act, the
Exchange Act or other federal or state law, insofar as such loss, damage or
liability (or any action in respect thereof) arises out of or is based upon
(a) any untrue statement or alleged untrue statement of a material fact
contained in any registration statement of the Company, including any
preliminary prospectus or final prospectus contained therein or any
amendments or supplements thereto; (b) an omission or alleged omission to
state therein a material fact required to be stated therein, or necessary to
make the statements therein not misleading; or (c) any violation or alleged
violation by the indemnifying party (or any of its agents or Affiliates) of
the Securities Act, the Exchange Act, any state securities law or any rule
or regulation promulgated under the Securities Act, the Exchange Act or any
state securities law.
1.3 "Exchange Act" means the Securities Exchange Act of 1934, as
amended, and the rules and regulations promulgated thereunder.
1.4 "Excluded Registration" means (a) a registration relating to the
sale of securities to employees of the Company or a subsidiary pursuant to a
stock option, stock purchase or similar plan; (b) a registration relating to
an SEC Rule 145 transaction; (c) a registration on any form that does not
include substantially the same information as would be required to be
included in a registration statement covering the sale of the Registrable
Securities; or (d) a registration in which the only Common Stock being
registered is Common Stock issuable upon conversion of debt securities that
are also being registered.
1.5 "Holder" means collectively EchoStar or a permitted transferee of
Registrable Securities pursuant to Section 3.1.
1.6 "Registrable Securities" means (a) the Shares, (b) the Warrant
Shares and (c) any Common Stock issued as a dividend or other distribution
with respect to, or in exchange for or in replacement of, any of the Shares
or any of the Warrant Shares; excluding in all cases, however, any
Registrable Securities sold by a Person in a transaction in which the
applicable rights under this Agreement are not transferred pursuant to
Section 3.1, and excluding any shares for which registration rights have
terminated pursuant to Section 2.8 of this Agreement.
1.7 "SEC" means the Securities and Exchange Commission.
1.8 "Securities Act" means the Securities Act of 1933, as amended, and
the rules and regulations promulgated thereunder.
1.9 "Selling Expenses" means all underwriting discounts, selling
commissions and stock transfer taxes applicable to the sale of Registrable
Securities, and fees and disbursements of counsel for the Holder.
2. Registration Rights. The Company covenants and agrees as follows:
2.1 Company Registration. If the Company proposes to register
(including, for this purpose, a registration effected by the Company for
stockholders other than the Holder) any of its securities under the
Securities Act in connection with the public offering of such securities
solely for cash (other than in an Excluded Registration), the Company shall,
at such time, promptly (but not later than thirty (30) days before the
anticipated date of filing such registration statement give the Holder
notice of such registration. Upon the request of the Holder given within
fifteen (15) days after such notice is given by the Company, the Company
shall, subject to the provisions of Section 2.2, cause to be registered all
of the Registrable Securities that the Holder has requested to be included
in such registration. The Company shall have the right to terminate,
withdraw or delay any registration initiated by it under this Section 2.1
before the effective date of such registration, whether or not the Holder
has elected to include Registrable Securities in such registration.
2.2 Underwriting Requirements. In connection with any offering
involving an underwriting of shares of the Company's capital stock pursuant
to Section 2.1, the Company shall not be required to include any of the
Holder's Registrable Securities in such underwriting unless the Holder
accepts the terms of the underwriting as agreed upon between the Company and
its underwriters, and then only in such quantity as the underwriters in
their sole discretion determine will not jeopardize the success of the
offering by the Company. If the total number of securities, including
Registrable Securities, requested by stockholders to be included in such
offering exceeds the number of securities to be sold (other than by the
Company) that the underwriters in their reasonable discretion determine is
compatible with the success of the offering, then the Company shall be
required to include in the offering only that number of such securities,
including Registrable Securities, which the underwriters and the Company in
their sole discretion determine will not jeopardize the success of the
offering. All Registrable Securities excluded from any registration as a
result of the underwriter's cutback provisions in this Section 2.2 may not
be publicly offered or sold for a period reasonably required by the
underwriter(s) as necessary in order to effect such offering (not to exceed
a period beginning 30 days prior to the effective date of such registration
statement and ending 90 days after such effective date).
2.3 Obligations of the Company. Whenever required under this Section 2
to effect the registration of any Registrable Securities, the Company shall,
as expeditiously as reasonably possible:
(a) Prepare and file with the SEC a registration statement with
respect to such Registrable Securities and use its commercially reasonable
efforts to cause such registration statement to become effective, and, upon
request of Holder, keep such registration statement effective for a period
of one hundred twenty (120) days or, if earlier, until the disposition
contemplated in the registration statement has been completed.
(b) Prepare and file with the SEC such amendments and supplements
to such registration statement, and the prospectus used in connection with
such registration statement, as may be necessary to comply with the
Securities Act in order to enable the disposition of all securities covered
by such registration statement.
(c) Furnish to the selling Holder such number of copies of a
prospectus, including a preliminary prospectus, as required by the
Securities Act, and such other documents as the Holder may reasonably
request in order to facilitate their disposition of their Registrable
Securities.
(d) Use its commercially reasonable efforts to register and
qualify the securities covered by such registration statement under such
other securities or blue-sky laws of such jurisdictions as shall be
reasonably requested by the selling Holder; provided that the Company shall
not be required to qualify to do business or to file a general consent to
service of process in any such states or jurisdictions, unless the Company
is already subject to service in such jurisdiction and except as may be
required by the Securities Act.
(e) In the event of any underwritten public offering, enter into
and perform its obligations under an underwriting agreement, in usual and
customary form, with the underwriter(s) of such offering.
(f) Use its commercially reasonable efforts to cause all such
Registrable Securities covered by such registration statement to be listed
on a national securities exchange or trading system and each securities
exchange and trading system (if any) on which similar securities issued by
the Company are then listed.
(g) Provide a transfer agent and registrar for all Registrable
Securities registered pursuant to this Agreement and provide a CUSIP number
for all such Registrable Securities, in each case not later than the
effective date of such registration.
(h) Promptly make available for inspection by the Holder and any
attorney or accountant or other agent retained by the Holder, all financial
and other records, pertinent corporate documents, and properties of the
Company, and cause the Company's officers, directors, employees, and
independent accountants to supply all information reasonably requested by
the Holder or any such attorney, accountant, or agent, in each case, as
necessary or advisable to verify the accuracy of the information in such
registration statement and to conduct appropriate due diligence in
connection therewith.
(i) Notify each selling Holder, promptly after the Company
receives notice thereof, of the time when such registration statement has
been declared effective or a supplement to any prospectus forming a part of
such registration statement has been filed.
(j) After such registration statement becomes effective, notify
each selling Holder of any request by the SEC that the Company amend or
supplement such registration statement or prospectus.
2.4 Furnish Information. It shall be a condition precedent to the
obligations of the Company to take any action pursuant to this Section 2
with respect to the Registrable Securities of the Holder that such Holder
shall furnish to the Company such information regarding itself, the
Registrable Securities held by it and the intended method of disposition of
such securities as is reasonably required to effect the registration of the
Holder's Registrable Securities.
2.5 Expenses of Registration. All expenses (other than Selling
Expenses) incurred in connection with registrations, filings, or
qualifications pursuant to Section 2, including all registration, filing and
qualification fees, printers' and accounting fees and fees and disbursements
of counsel for the Company, shall be borne and paid by the Company. All
Selling Expenses relating to Registrable Securities registered pursuant to
this Section 2 shall be borne and paid by the Holder.
2.6 Delay of Registration. The Holder shall not have any right to
obtain or seek an injunction restraining or otherwise delaying any
registration pursuant to this Agreement as the result of any controversy
that might arise with respect to the interpretation or implementation of
this Section 2.
2.7 Indemnification. If any Registrable Securities are included in a
registration statement under this Section 2:
(a) To the extent permitted by law, the Company will indemnify
and hold harmless the selling Holder, and the partners, members, officers,
directors, and stockholders of the Holder, legal counsel and accountants for
the Holder, any underwriter (as defined in the Securities Act) for the
Holder, and each Person, if any, who controls the Holder or underwriter
within the meaning of the Securities Act or the Exchange Act, against any
Damages, and the Company will pay to the Holder and each such underwriter,
controlling Person, or other aforementioned Person any legal or other
expenses reasonably incurred thereby in connection with investigating or
defending any claim or proceeding from which Damages may result, as such
expenses are incurred; provided, however, that the indemnity agreement
contained in this Section 2.7(a) shall not apply to amounts paid in
settlement of any such claim or proceeding if such settlement is effected
without the consent of the Company, which consent shall not be unreasonably
withheld, nor shall the Company be liable for any Damages to the extent that
they arise out of or are based upon actions or omissions made in reliance
upon and in conformity with written information furnished by or on behalf of
the Holder or such underwriter, controlling Person or other aforementioned
Person expressly for use in connection with such registration.
(b) To the extent permitted by law, the selling Holder will
indemnify and hold harmless the Company, and each of its directors, each of
its officers who has signed the registration statement, each Person (if
any), who controls the Company within the meaning of the Securities Act,
legal counsel and accountants for the Company, any underwriter (as defined
in the Securities Act), and any controlling Person of any such underwriter,
against any Damages, in each case only to the extent that such Damages arise
out of or are based upon actions or omissions made in reliance upon and in
conformity with written information furnished by or on behalf of the Holder
expressly for use in connection with such registration; and the Holder will
pay to the Company and each other aforementioned Person any legal or other
expenses reasonably incurred thereby in connection with investigating or
defending any claim or proceeding from which Damages may result, as such
expenses are incurred; provided, however, that the indemnity agreement
contained in this Section 2.7(b) shall not apply to amounts paid in
settlement of any such claim or proceeding if such settlement is effected
without the consent of the Holder, which consent shall not be unreasonably
withheld; and provided further that in no event shall the aggregate amount
paid by Holder under this Section 2.7(b) exceed the proceeds from the
offering received by the Holder, except in the case of fraud or willful
misconduct by the Holder.
(c) Promptly after receipt by an indemnified party under this
Section 2.7 of notice of the commencement of any action (including any
governmental action) for which a party may be entitled to indemnification
hereunder, such indemnified party will, if a claim in respect thereof is to
be made against any indemnifying party under this Section 2.7, give the
indemnifying party notice of the commencement thereof. The indemnifying
party shall have the right to participate in such action and, to the extent
the indemnifying party so desires, participate jointly with any other
indemnifying party to which notice has been given, and to assume the defense
thereof with counsel mutually satisfactory to the parties; provided,
however, that an indemnified party (together with all other indemnified
parties that may be represented without conflict by one counsel) shall have
the right to retain one separate counsel, with the fees and expenses to be
paid by the indemnifying party, if representation of such indemnified party
by the counsel retained by the indemnifying party would be inappropriate due
to actual or potential differing interests between such indemnified party
and any other party represented by such counsel in such action. The failure
to give notice to the indemnifying party within a reasonable time of the
commencement of any such action shall not relieve such indemnifying party of
any liability to the indemnified party under this Section 2.7, except to the
extent that such failure materially prejudices the indemnifying party's
ability to defend such action.
(d) To provide for just and equitable contribution to joint
liability under the Securities Act in any case in which either (i) any party
otherwise entitled to indemnification hereunder makes a claim for
indemnification pursuant to this Section 2.7 but it is judicially determined
(by the entry of a final judgment or decree by a court of competent
jurisdiction and the expiration of time to appeal or the denial of the last
right of appeal) that such indemnification may not be enforced in such case,
notwithstanding the fact that this Section 2.7 provides for indemnification
in such case, or (ii) contribution under the Securities Act may be required
on the part of any party hereto for which indemnification is provided under
this Section 2.7, then, and in each such case, such parties will contribute
to the aggregate losses, claims, damages, liabilities, or expenses to which
they may be subject (after contribution from others) in such proportion as
is appropriate to reflect the relative fault of each of the indemnifying
party and the indemnified party in connection with the statements, omissions
or other actions that resulted in such loss, claim, damage, liability or
expense, as well as to reflect any other relevant equitable considerations.
The relative fault of the indemnifying party and of the indemnified party
shall be determined by reference to, among other things, whether the untrue
or allegedly untrue statement of a material fact, or the omission or alleged
omission of a material fact, relates to information supplied by the
indemnifying party or by the indemnified party and the parties' relative
intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission; provided, however, that, in any such
case, (A) the Holder will not be required to contribute any amount in excess
of the public offering price of all such Registrable Securities offered and
sold by the Holder pursuant to such registration statement, and (B) no
Person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Securities Act) will be entitled to contribution from any
Person who was not guilty of such fraudulent misrepresentation; and provided
further that in no event shall the Holder's liability pursuant to this
Section 2.7(d), when combined with the amounts paid or payable by such
Holder pursuant to Section 2.7(b), exceed the proceeds from the offering
received by such Holder, except in the case of willful misconduct or fraud
by the Holder.
(e) Notwithstanding the foregoing, to the extent that the
provisions on indemnification and contribution contained in the underwriting
agreement entered into in connection with the underwritten public offering
are in conflict with the foregoing provisions, the provisions in the
underwriting agreement shall control.
(f) Unless otherwise superseded by an underwriting agreement
entered into in connection with the underwritten public offering, the
obligations of the Company and the Holder under this Section 2.7 shall
survive the completion of any offering of Registrable Securities in a
registration under this Section 2, and otherwise shall survive the
termination of this Agreement.
2.8 Limitations on Subsequent Registration Rights. From and after the
date of this Agreement, the Company shall not, without the prior written
consent of the Holder, enter into any agreement with any holder or
prospective holder of any securities of the Company other than a Holder that
would allow such holder or prospective holder (i) to include such securities
in any registration 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
number of the Registrable Securities of the Holders that are included or
(ii) allow such holder or prospective holder to initiate a demand for
registration of any securities held by such holder or prospective holder.
2.9 Termination of Registration Rights. The right of the Holder to
request registration or inclusion of Registrable Securities in any
registration pursuant to Section 2.1 shall terminate upon when all of the
Holder's Registrable Securities could be sold without restriction
(including, without limitation, holding periods and volume limitations)
under Rule 144(k) promulgated by the SEC under the Securities Act.
3. Miscellaneous.
3.1 Successors and Assigns. The rights under this Agreement may be
assigned (but only with all related obligations) by the Holder to a
transferee of Registrable Securities that is an Affiliate of the Holder;
provided, however, that (a) the Company is, within a reasonable time after
such transfer, furnished with written notice of the name and address of such
transferee and the Registrable Securities with respect to which such rights
are being transferred; and (b) such transferee agrees in a written
instrument delivered to the Company to be bound by and subject to the terms
and conditions of this Agreement. The terms and conditions of this
Agreement shall inure to the benefit of and are binding upon the respective
successors and permitted assignees of the parties. Nothing in this
Agreement, express or implied, is intended to confer upon any party other
than the parties hereto or their respective successors and permitted
assignees any rights, remedies, obligations or liabilities under or by
reason of this Agreement, except as expressly provided herein.
3.2 Governing Law. This Agreement shall be governed by, and construed
in accordance with, the laws of the State of Delaware, regardless of the
laws that might otherwise govern under applicable principles of conflicts of
law.
3.3 Counterparts; Facsimile. This Agreement may be executed and
delivered by facsimile (or other electronic transmission) signature and in
two or more counterparts, each of which shall be deemed an original, but all
of which together shall constitute one and the same instrument.
3.4 Titles and Subtitles. The titles and subtitles used in this
Agreement are used for convenience only and are not to be considered in
construing or interpreting this Agreement.
3.5 Notices. All notices required or permitted under this Agreement
shall be in writing to the other party and shall be delivered in person, by
facsimile, by overnight mail, or by registered or certified mail, to the
parties at the following addresses and facsimile numbers:
If to the Company:
CalAmp Corp.
0000 X. Xxxx Xxxxxx
Xxxxxx, Xxxxxxxxxx 00000
Attn: Xxxx Xxxxx, CEO
Facsimile No.: 000-000-0000
With a copy to:
Xxxxxx, Xxxx & Xxxxxxxx LLP
000 X. Xxxxx Xxxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attn: Xxxxx X. Xxxxxxx
Facsimile No.: 213-229-6595
If to Holder:
EchoStar Technologies Corporation
0000 Xxxxx Xxxxxxxx Xxxxxxxxx
Xxxxxxxxx, Xxxxxxxx 00000
Attn: Xxxxxxx X. Xxxx, Esq.
Facsimile No.: 000-000-0000
With a copy to:
Morris, Nichols, Arsht & Xxxxxxx LLP
0000 Xxxxx Xxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Attn: Xxxxxx X. Xxxxxx, Esq.
Facsimile No.: 000-000-0000
3.6 Amendment, Termination or Waiver. No amendment of any provision of
this Agreement shall be effective unless the same shall be in writing and
signed by all of the parties hereto. No waiver of any provision of this
Agreement nor consent to any departure therefrom by any party shall be
effective unless the same shall be in writing and signed by the Company,
with respect to any waiver or consent requested by the Holder, and by the
Holder with respect to any waiver or consent requested by the Company. In
either case, such waiver or consent shall be effective only in the specific
instance and for the specific purpose for which given. No delay or omission
to exercise any right, power or remedy accruing to any party under this
Agreement, upon any breach or default of any other party under this
Agreement, shall, except as expressly provided in this Agreement, impair any
such right, power or remedy of such non-breaching or non-defaulting party
nor shall it be construed to be a waiver of any such breach or default, or
an acquiescence therein, or of or in any similar breach or default
thereafter occurring; nor shall any waiver of any single breach or default
be deemed a waiver of any other breach or default previously or thereafter
occurring.
3.7 Severability. The invalidity or unenforceability of any provision
hereof shall in no way affect the validity or enforceability of any other
provision.
3.8 Entire Agreement. This Agreement, together with the Settlement
Agreement, constitutes the full and entire understanding and agreement among
the parties with respect to the subject matter hereof, and any other written
or oral agreement relating to the subject matter hereof existing between the
parties are expressly canceled.
3.9 Further Assurances. At any time or from time to time after the
date hereof, the parties agree to cooperate with each other, and at the
request of any other party, to execute and deliver any further instruments
or documents and to take all such further action as the other party may
reasonably request in order to evidence or effectuate the consummation of
the transactions contemplated hereby and to otherwise carry out the intent
of the parties hereunder.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year herein above first written.
CALAMP CORP.,
a Delaware corporation
By: /s/ Xxxx Xxxxx
________________________
Name: Xxxx Xxxxx
Title: CEO
ECHOSTAR TECHNOLOGIES CORPORATION,
a Texas corporation
By: Xxxxxxx X. Xxxxx
___________________________
Name: Xxxxxxx X. Xxxxx
Title: Chairman & CEO
