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EXHIBIT 4.10
REGISTRATION RIGHTS AGREEMENT
This REGISTRATION RIGHTS AGREEMENT (this "Agreement"), dated
as of July 23, 1996, is among MICROWAVE COMPONENTS ENTERPRISES, INC., a Michigan
corporation (the "Company"), XXXXXXX XXXXXX MEZZANINE FUND, L.P. ("HI"), and
NATIONAL CITY CAPITAL CORPORATION ("NCCC"; together with HI, the "Holders", and
each individually a "Holder").
This Agreement is made in connection with the Note, Warrant
and Preferred Stock Purchase Agreement of even date herewith among the Company,
HI and NCCC (the "Purchase Agreement"). In order to induce the Holders to enter
into the Purchase Agreement, the Company has agreed to provide the registration
rights set forth in this Agreement.
The parties hereby agree as follows:
1. Definitions. As used herein, the following terms have the
following meanings:
"Commission" means the Securities and Exchange Commission.
"Common Stock" means the Company's Common Stock, without par
value per share.
"Demand Registration" has the meaning specified in Section
2(a).
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Holder" means one of the Holders identified in the
introductory paragraph to this Agreement or such other Person to whom such
Holder shall have assigned or transferred such Holder's Registrable Securities
in accordance with Section 12(g) of this Agreement.
"Indemnified Party" has the meaning specified in Section 8(b)
hereof.
"Indemnifying Party" has the meaning specified in Section 8(b)
hereof.
"Instrument of Accession" means an instrument in the form of
Schedule 1 hereto.
"IPO" means the initial public offering of equity securities
of the Company pursuant to an effective registration statement under the
Securities Act.
"Person" means any individual, partnership, corporation, trust
or unincorporated organization, or a government or agency or political
subdivision thereof.
"Piggyback Registration" has the meaning specified in Section
3(a).
"Prospectus" means the prospectus included in any Registration
Statement, as amended or supplemented by any Prospectus supplement with respect
to the terms of the offering of any portion of the Registrable Securities
covered by such Registration Statement and all other amendments and supplements
to the Prospectus, including post-effective amendments, and all material
incorporated by reference in such Prospectus.
"Public Sale" means any sale of Common Stock to the public
pursuant to a public offering registered under the Securities Act, or to the
public through a broker or market-maker pursuant to the provisions of Rule 144
(or any successor rule) adopted under the Securities Act.
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"Registered" and "Registration" means a registration effected
by preparing and filing a Registration Statement in compliance with the
Securities Act and the declaration or ordering by the Commission of
effectiveness of such Registration Statement.
"Registrable Securities" means, at any time, all of the then
issued and outstanding (a) shares of Common Stock issued or issuable to the
Holders upon exercise of any of the Warrants, (b) all shares of Common Stock
issued to or purchased by any of the Holders from time to time other than upon
exercise of any of the Warrants, (c) shares of any class of Common Stock into
which such shares of Common Stock have been or may be converted, (d) capital
stock or other securities into which or for which any shares of Common Stock
described in the foregoing clauses (a) - (c) shall have been converted or
exchanged pursuant to any recapitalization, reorganization or merger of the
Company, and (e) shares of capital stock issued with respect to the foregoing
pursuant to a stock split or stock dividend, provided that the foregoing capital
stock shall be Registrable Securities only so long as such capital stock has not
been sold pursuant to a Public Sale, and provided further, that any such capital
stock which may be resold by a Holder pursuant to Rule 144(k) promulgated by the
Commission under the Exchange Act shall cease to be Registrable Securities from
and after the first date upon which Rule 144(k) becomes available for such
resale.
"Registration Expenses" has the meaning specified in Section
7.
"Registration Statement" means any registration statement of
the Company filed with the Commission in connection with an IPO or subsequent
public offering of equity securities of the Company under the Securities Act
which covers any of the Registrable Securities pursuant to the provisions of
this Agreement including the Prospectus, amendments and supplements to such
Registration Statement, including post-effective amendments, all exhibits and
all material incorporated by reference in such Registration Statement.
"Securities Act" means the Securities Act of 1933, as amended.
"Stockholder Agreement" means the Stockholder Agreement of
even date herewith between the Company, the Holders, and certain other Persons.
"Trigger Event" means the earlier to occur of (a) the IPO and
(b) the Company's failure to pay the amount of cash required by the Put Right
(as defined in the Warrants) upon the request of the Holder thereunder to
receive cash in lieu of a promissory note.
"Underwriters' Maximum Number" means, for any Piggyback
Registration, Demand Registration or other registration which is an underwritten
registration, that number of securities to which such registration should, in
the opinion of the managing underwriters of such registration in the light of
marketing factors, be limited.
"Warrants" means (a) the Warrants issued to HI and NCCC
pursuant to the Purchase Agreement and (b) any other "Warrants", as defined in
each of such Warrants.
2. Demand Registration.
(a) Request for Demand Registration.
(i) Upon the occurrence of the Trigger Event arising
as a result of the Company's determination to participate in an IPO,
the Company shall give the Holders prompt notice thereof. In addition,
upon the occurrence of the Trigger Event, any of the Holders may give
to the Company, pursuant to this subparagraph (i), a written request
for the registration by the Company under the Securities Act of all or
any part of the Registrable Securities of such Holders (such
registration being herein called a "Demand Registration"). Within ten
(10) days
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after the receipt by the Company of any such written request, the
Company will give written notice of such registration request to all
Holders of Registrable Securities.
(ii) Subject to the limitations contained in the following
paragraphs of this Section 2, after the receipt of such
written request for a Demand Registration, (A) the Company
will be obligated and required to include in such Demand
Registration all Registrable Securities with respect to which
the Company shall receive from Holders of Registrable
Securities, within thirty (30) days after the date on which
the Company shall have given to all Holders a written notice
of registration request pursuant to Section 2(a)(i) hereof,
the written requests of such Holders for inclusion in such
Demand Registration, and (B) the Company will use its best
efforts in good faith to effect promptly the registration of
all such Registrable Securities. All written requests made by
Holders of Registrable Securities pursuant to this
subparagraph (ii) will specify the number of shares of
Registrable Securities to be registered and will also specify
the intended method of disposition thereof.
(b) Limitations on Demand Registration.
(i) The Holders of Registrable Securities will not be
entitled to require the Company to effect (A) any Demand Registration
on Form S-1 (or any other comparable form adopted by the Commission)
more frequently than once during any twelve-month period, or (B) any
Demand Registration on Form S-1 (or other comparable form adopted by
the Commission) unless Form S-3 (or any comparable form adopted by the
Commission) is not available for such Demand Registration.
(ii) The Holders will not be entitled to require the
Company to effect more than two (2) Demand Registrations.
(iii) Any registration initiated by Holders of Registrable
Securities as a Demand Registration pursuant to Section 2(a)
hereof shall not count as a Demand Registration for purposes
of Sections 2(b)(i) and (ii) hereof (A) unless and until such
Registration shall have become effective and all Registrable
Securities requested to be included in such registration shall
have been actually sold or (B) if such Holders withdraw their
request for a Demand Registration at any time because such
Holders (1) reasonably believed that the Registration
Statement or Prospectus relating to such Registration
Statement contained an untrue statement of a material fact or
omitted to state a material fact required to be stated therein
or necessary to make the statements made therein (in the case
of the Prospectus, in the light of the circumstances under
which they were made) not misleading, (2) notified the Company
of such fact and requested that the Company correct such
alleged misstatement or omission and (3) the Company has
refused to correct such alleged misstatement or omission.
(iv) The Company shall not be obligated or required to
effect the Demand Registration of any Registrable Securities
pursuant to Section 2(a) hereof during the period commencing
on the date falling thirty (30) days prior to the Company's
estimated date of filing of, and ending on the date one
hundred eighty (180) days following the effective date of, any
Registration Statement pertaining to any underwritten
Registration initiated by the Company, for the account of the
Company, if the written request of Holders for such Demand
Registration pursuant to Section 2(a)(i) hereof shall have
been received by the Company after the Company shall have
given to all Holders of Registrable Securities a written
notice stating that the Company is commencing an underwritten
Registration initiated by the Company; provided, however, that
the Company will use its best efforts in good faith to cause
any such Registration Statement to be filed and to become
effective as expeditiously as shall be reasonably possible.
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(c) Priority On Demand Registrations. If the managing
underwriters in any underwritten Demand Registration shall give written advice
to the Company and the Holders of Registrable Securities to be included in such
registration of an Underwriters' Maximum Number, then: (i) the Company will be
obligated and required to include in such registration that number of
Registrable Securities requested by the Holders thereof to be included in such
registration which does not exceed the Underwriters' Maximum Number, and such
number of Registrable Securities shall be allocated pro rata among the Holders
of such Registrable Securities on the basis of the number of Registrable
Securities requested to be included therein by each such Holder; and (ii) if the
Underwriters' Maximum Number exceeds the number of Registrable Securities
requested by the Holders thereof to be included in such registration, then the
Company may include in such registration that number of other securities which
the Company and/or persons (other than the Holders as such) shall have requested
be included in such registration as shall be determined by the Company in its
sole discretion and which shall not be greater than such excess. Neither the
Company nor any of its stockholders (other than Holders of Registrable
Securities) shall be entitled to include any securities in any underwritten
Demand Registration unless the Company or such stockholders (as the case may be)
shall have agreed in writing to sell such securities on the same terms and
conditions as shall apply to the Registrable Securities to be included in such
Demand Registration.
(d) Selection Of Underwriters. The Holders of a majority of
the Registrable Securities to be included in any Demand Registration shall
determine whether or not such Demand Registration shall be underwritten and
shall select the investment banker(s) and managing underwriter(s), that shall be
of national or regional standing, to administer such offering.
3. Piggyback Registrations.
(a) Rights to Piggyback.
(i) If (and on each occasion that) the Company
proposes to register any of its securities under the Securities Act
either for the Company's own account or for the account of any of its
stockholders (other than for Holders pursuant to Section 2 hereof
entitled to participate in a registration) (each such registration not
withdrawn or abandoned prior to the effective date thereof being herein
called a "Piggyback Registration"), the Company will give written
notice to all Holders of Registrable Securities of such proposal not
later than the earlier to occur of (A) the tenth day following the
receipt by the Company of notice of exercise of any registration rights
by any persons, and (B) the thirtieth day prior to the anticipated
filing date of such Piggyback Registration.
(ii) Subject to the provisions contained in paragraph (b)
of this Section 3 and in the last sentence of this
subparagraph (ii), (A) the Company will be obligated and
required to include in each Piggyback Registration all
Registrable Securities with respect to which the Company shall
receive from Holders of Registrable Securities, within fifteen
(15) days after the date on which the Company shall have given
written notice of such Piggyback Registration to all Holders
of Registrable Securities pursuant to Section 3(a)(i) hereof,
the written requests of such Holders for inclusion in such
Piggyback Registration, and (B) the Company will use its best
efforts in good faith to effect promptly the registration of
all such Registrable Securities. The Holders of Registrable
Securities shall be permitted to withdraw all or any part of
the Registrable Securities of such Holders from any Piggyback
Registration at any time prior to the effective date of such
Piggyback Registration unless such Holders of Registrable
Securities shall have entered into a written agreement with
the Company's underwriters establishing the terms and
conditions under which such Holders would be obligated to sell
such securities in such Piggyback Registration, provided that,
such Holders shall use their good faith efforts to advise the
Company as promptly as practicable of their determination to
so withdraw. The Company will not be obligated or required to
include any Registrable Securities in any
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registration effected solely to implement an employee benefit
plan or a transaction to which Rule 145 of the Commission is
applicable.
(b) Priority on Piggyback Registrations. If a Piggyback
Registrations is an underwritten registration, and the managing underwriters
shall give written advice to the Company of an Underwriters' Maximum Number,
then: (i) the Company shall be entitled to include in such registration that
number of securities which the Company proposes to offer and sell for its own
account in such registration and which does not exceed the Underwriters' Maximum
Number; (ii) if the Underwriters' Maximum Number exceeds the number of
securities which the Company proposes to offer and sell for its own account in
such registration, then the Company will be obligated and required to include in
such registration that number of Registrable Securities requested by the Holders
thereof to be included in such registration and which does not exceed such
excess and such Registrable Securities shall be allocated pro rata among the
Holders thereof on the basis of the number of Registrable Securities requested
to be included therein by each such Holder; and (iii) if the Underwriters'
Maximum Number exceeds the sum of the number of Registrable Securities which the
Company shall be required to include in such registration pursuant to clause
(ii) and the number of securities which the Company proposes to offer and sell
for its own account in such registration, then the Company may include in such
registration that number of other securities which persons shall have requested
be included in such registration and which shall not be greater than such
excess.
(c) Selection of Underwriters. In any Piggyback Registration,
the Company shall (unless the Company shall otherwise agree) have the right to
select the investment bankers and managing underwriters in such registration.
4. Lockup Agreements.
(a) Restrictions on Public Sale of Holders of Registrable
Securities. Each Holder of Registrable Securities, if the Company or the
managing underwriters so request in connection with any underwritten
registration of the Company's securities, will not, without the prior written
consent of the Company or such underwriters, effect any Public Sale or other
distribution of any equity securities of the Company, including any sale
pursuant to Rule 144, during the seven (7) days prior to, and, during the one
hundred twenty (120) day period commencing on the effective date of such
underwritten registration, except in connection with such underwritten
Registration.
(b) Restrictions on Public Sale by the Company. The Company
agrees not to effect any public sale or other distribution of its equity
securities, or any securities convertible into or exchangeable or exercisable
for such equity securities, during the period commencing on the seventh day
prior to, and ending on the one hundred eightieth (180th) day following, the
effective date of any underwritten Demand or Piggyback Registration, except in
connection with any such underwritten registration and except for any offering
pursuant to an employee benefit plan and registered on Form S-8 (or comparable
form adopted by the Commission).
5. Registration Procedures.
(a) Whenever the Holders of Registrable Securities have
requested that any Registrable Securities be registered pursuant to this
Agreement, the Company will use its best efforts to effect the registration and
the sale of such Registrable Securities in accordance with the intended method
of disposition thereof, and pursuant thereto the Company will as expeditiously
as practicable:
(i) prepare and file with the Commission a Registration
Statement with respect to such Registrable Securities and use its best
efforts to cause such Registration Statement to become effective
(provided, that before filing a Registration Statement or Prospectus or
any amendments or supplements thereto, the Company will furnish to
counsel selected by the holders of Registrable Securities covered by
such Registration Statement, copies of all such documents
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proposed to be filed, which documents will be subject to the timely
review of such counsel and the Company will not file any Registration
Statement or amendment thereto or any Prospectus or any supplement
thereto, including documents incorporated by reference, to which the
Holders of a majority of the Registrable Securities covered by such
Registration Statement shall timely and reasonably object);
(ii) 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 for not more than
six (6) months and, comply with the provisions of the
Securities Act with respect to the disposition of all
securities covered by such Registration Statement during such
effective period in accordance with the intended methods of
disposition by the sellers thereof set forth in such
Registration Statement and cause the Prospectus to be
supplemented by any required prospectus supplement, and as so
supplemented to be filed pursuant to Rule 424 under the
Securities Act;
(iii) upon request, furnish to each seller of Registrable
Securities such number of copies of such Registration
Statement, each amendment and supplement thereto, the
Prospectus included in such Registration Statement (including
each preliminary Prospectus and each Prospectus filed under
Rule 424 of the Securities Act) and such other documents as
each such seller may reasonably request in order to facilitate
the disposition of the Registrable Securities owned by each
such seller (it being understood that the Company consents to
the use of the Prospectus and any amendment or supplement
thereto by such seller in connection with the offering and
sale of the Registrable Securities covered by the Prospectus
or any amendment or supplement thereto);
(iv) use its best efforts to register or qualify such
Registrable Securities under such other securities or blue sky
laws of such jurisdictions as any seller reasonably requests,
use its best efforts to keep each such Registration or
qualification effective, including through new filings,
amendments or renewals, during the period such Registration
Statement is required to be kept effective, and do any and all
other acts and things which may be reasonably necessary or
advisable to enable such seller to consummate the disposition
in such jurisdictions of the Registrable Securities owned by
such seller; provided that the Company will not be required
(A) to qualify generally to do business in any jurisdiction
where it would not otherwise be required to qualify but for
this subparagraph (a)(iv), (B) to subject itself to taxation
in any such jurisdiction or (C) to consent to general service
of process in any such jurisdiction;
(v) notify each seller of such Registrable
Securities, at any time when a Prospectus relating thereto 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 contains an untrue statement of a material fact or omits any
fact necessary to make the statements therein not misleading, and, at
the request of any such seller, the Company will promptly prepare (and,
when completed, give notice to each seller of Registrable Securities) a
supplement or amendment to such Prospectus so that, as thereafter
delivered to the purchasers of such Registrable Securities, such
Prospectus will not contain an untrue statement of a material fact or
omit to state any fact necessary to make the statements therein not
misleading; provided that upon such notification by the Company, each
seller of such Registrable Securities will not offer or sell such
Registrable Securities until the Company has notified such seller that
it has prepared a supplement or amendment to such Prospectus and
delivered copies of such supplement or amendment to such Seller;
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(vi) cause all such Registrable Securities to be listed,
prior to the date of the first sale of such Registrable
Securities pursuant to such Registration, on each securities
exchange on which similar securities issued by the Company are
then listed and, if not so listed, to be listed with the
Nasdaq Stock Market;
(vii) provide a transfer agent and registrar for all such
Registrable Securities not later than the effective date of
such Registration Statement;
(viii) enter into all such customary agreements (including
underwriting agreements in customary form) and take all such
other actions as the holders of a majority of the Registrable
Securities being sold or the underwriters, if any, reasonably
request in order to expedite or facilitate the disposition of
such Registrable Securities (including, without limitation,
effecting a stock split or a combination of shares);
(ix) make available for inspection on a confidential basis
by any seller, any underwriter participating in any
disposition pursuant to such Registration Statement, and any
attorney, accountant or other agent retained by any such
seller or underwriter (in each case after reasonable prior
notice), 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 on a confidential basis all information
reasonably requested by any such seller, underwriter,
attorney, accountant or agent in connection with such
Registration Statement;
(x) permit any holder of Registrable Securities which
holder, in its sole and exclusive judgment, might be deemed to be an
underwriter or a controlling person of the Company within the meaning
of Section 15 of the Securities Act, to participate in the preparation
of such registration or comparable statement and to permit the
insertion therein of material, furnished to the Company in writing,
which in the reasonable judgment of such holder and its counsel should
be included, provided that such material shall be furnished under such
circumstances as shall cause it to be subject to the indemnification
provisions provided pursuant to Section 8(b) hereof;
(xi) in the event of the issuance of any stop order
suspending the effectiveness of a Registration Statement, or
of any order suspending or preventing the use of any related
Prospectus or suspending the qualification of any Registrable
Securities included in such Registration Statement for sale in
any jurisdiction, the Company will use its best efforts
promptly to obtain the withdrawal of such order;
(xii) if requested by the managing underwriter or
underwriters or any holder of Registrable Securities in
connection with any sale pursuant to a Registration Statement,
promptly incorporate in a Prospectus supplement or
post-effective amendment such information relating to such
underwriting as the managing underwriter or underwriters or
such holder reasonably requests to be included therein, and
make all required filings of such Prospectus supplement or
post-effective amendment as soon as practicable after being
notified of the matters incorporated in such Prospectus
supplement or post-effective amendment;
(xiii) cooperate with the holders of Registrable Securities
and the managing underwriter or underwriters, if any, to
facilitate the timely preparation and delivery of certificates
(not bearing any restrictive legends) representing Registrable
Securities to be sold under such Registration, and enable such
Registrable Securities to be in such denominations and
registered in such names as the managing underwriter or
underwriters, if any, or such holders may request;
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(xiv) use its best efforts to cause the Registrable
Securities to be registered with or approved by such other
governmental agencies or authorities within the United States
and having jurisdiction over the Company as may reasonably be
necessary to enable the seller or sellers thereof or the
underwriter or underwriters, if any, to consummate the
disposition of such Registrable Securities;
(xv) use its best efforts to obtain:
(A) at the time of effectiveness of each
Registration, a "comfort letter" from the Company's
independent certified public accountants covering such matters
of the type customarily covered by "cold comfort letters" as
the Holders of a majority of the Registrable Securities
covered by such Registration and the underwriters reasonably
request; and
(B) at the time of any underwritten sale
pursuant to a Registration Statement, a "bring-down comfort
letter", dated as of the date of such sale, from the Company's
independent certified public accountants covering such matters
of the type customarily covered by comfort letters as the
Holders of a majority of the Registrable Securities covered by
such Registration Statement and the underwriters reasonably
request;
(xvi) use its best efforts to obtain, at the time of
effectiveness of each Piggyback Registration and at the time
of any sale pursuant to each Registration, an opinion or
opinions, favorable in form and scope to the Holders of a
majority of the Registrable Securities covered by such
Registration, from counsel to the Company in customary form;
and
(xvii) otherwise comply with all applicable rules and
regulations of the Commission, and make generally available to
its security holders (as contemplated by Section 11(a) under
the Securities Act) an earnings statement satisfying the
provisions of Rule 158 under the Securities Act no later than
ninety (90) days after the end of the twelve (12) month period
beginning with the first month of the Company's first fiscal
quarter commencing after the effective date of the
Registration Statement, which statement shall cover said
twelve (12) month period.
(b) Whenever the Holders of Registrable Securities have
requested that any Registrable Securities be registered pursuant to this
Agreement, the Holders will as expeditiously as practicable comply with all
applicable laws and rules and regulations of the Commission in connection
therewith.
6. Cooperation by Prospective Sellers, Etc.
(a) Each prospective seller of Registrable Securities will
furnish to the Company in writing such information as the Company may reasonably
require from such seller, and otherwise reasonably cooperate with the Company in
connection with any Registration Statement with respect to such Registrable
Securities.
(b) The failure of any prospective seller of Registrable
Securities to furnish any information or documents in accordance with any
provision contained in this Agreement shall not affect the obligations of the
Company under this Agreement to any remaining sellers who furnish such
information and documents unless in the reasonable opinion of counsel to the
Company or the underwriters, such failure impairs or may impair the viability of
the offering or the legality of the Registration Statement or the underlying
offering.
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(c) The Holders of Registrable Securities included in any
Registration Statement will not (until further notice) effect sales thereof
after receipt of telegraphic or written notice from the Company to suspend sales
to permit the Company to correct or update such Registration Statement or
Prospectus; but the obligations of the Company with respect to maintaining any
Registration Statement current and effective shall be extended by a period of
days equal to the period such suspension is in effect.
(d) At the end of any period during which the Company is
obligated to keep any Registration Statement current and effective as provided
by Section 5 hereof (and any extensions thereof required by the preceding
paragraph (c) of this Section 6), the Holders of Registrable Securities included
in such Registration Statement shall discontinue sales of shares pursuant to
such Registration Statement upon receipt of notice from the Company of its
intention to remove from registration the shares covered by such Registration
Statement which remain unsold, and such Holders shall notify the Company of the
number of shares registered which remain unsold promptly after receipt of such
notice from the Company.
(e) Notwithstanding any other provision herein to the
contrary, no Holder of Registrable Securities which constitute warrants or
options shall be required to exercise such warrants or options in connection
with any Registration until the actual closing of the Public Sale of the shares
of Common Stock issuable upon exercise of such warrants or options. The Company
shall enter into such agreements and shall otherwise cooperate with the Holders
of Registrable Securities in order to ensure that such Holders are not required
to exercise any warrants or options prior to the date of the actual closing of
the Public Sale of the shares of Common Stock issuable upon exercise of such
warrants or options.
7. Registration Expenses.
(a) All costs and expenses incurred or sustained in connection
with or arising out of each Registration pursuant to Sections 2 and 3 hereof,
including, without limitation, all registration and filing fees, fees and
expenses of compliance with securities or blue sky laws (including reasonable
fees and disbursements of counsel for the underwriters in connection with the
blue sky qualification of Registrable Securities), printing expenses, messenger,
telephone and delivery expenses, fees and disbursements of counsel for the
Company, reasonable fees and disbursements of one counsel representing the
Holders of Registrable Securities, such counsel to be selected by the Holders of
a majority of the Registrable Securities to be included in such Registration,
fees and disbursements of all independent certified public accountants
(including the expenses relating to the preparation and delivery of any special
audit or "cold comfort" letters required by or incident to such Registration),
and fees and disbursements of underwriters (excluding discounts and
commissions), the reasonable fees and expenses of any special experts retained
by the Company of its own initiative or at the request of the managing
underwriters in connection with such Registration, and fees and expenses of all
(if any) other persons retained by the Company (all such costs and expenses
being herein called, collectively, the "Registration Expenses" will be borne and
paid by the Company. The Company will, in any case, pay its internal expenses
(including, without limitation, all salaries and expenses of its officers and
employees performing legal or accounting duties), the expense of any annual
audit, and the fees and expenses incurred in connection with the listing of the
securities to be registered on each securities exchange on which similar
securities of the Company are then listed.
(b) The Company will not bear the cost of nor pay for any
stock transfer taxes imposed in respect of the transfer of any Registrable
Securities to any purchaser thereof by any Holder of Registrable Securities in
connection with any Registration of Registrable Securities pursuant to this
Agreement.
(c) To the extent that Registration Expenses incident to any
Registration are, under the terms of this Agreement, not required to be paid by
the Company, each Holder of Registrable
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Securities included in such Registration will pay all Registration Expenses
which are clearly solely attributable to the registration of such Holder's
Registrable Securities so included in such Registration, and all other
Registration Expenses not so attributable to one Holder will be borne and paid
by all sellers of securities included in such Registration in proportion to the
number of securities so included by each such seller.
8. Indemnification.
(a) Indemnification by the Company. The Company will indemnify
each Holder requesting or joining in a registration and each underwriter of the
securities so registered, the officers, directors and partners' of each such
Person and each Person who controls any thereof (within the meaning of the
Securities Act or the Exchange Act) against any and all claims, losses, damages
and liabilities (or actions in respect thereof) arising out of or based on any
untrue statement (or alleged untrue statement) of any material fact contained in
any Prospectus, offering circular or other document incident to any
registration, qualification or compliance (or in any related Registration
Statement, notification or the like) or any omission (or alleged omission) to
state therein any material fact required to be stated therein or necessary to
make the statements therein not misleading, or any violation by the Company of
any rule or regulation promulgated under the Securities Act applicable to the
Company and relating to any action or inaction required of the Company in
connection with any such registration, qualification or compliance, and the
Company will reimburse each such Holder, underwriter, officer, director, partner
and controlling person for any legal and any other expenses reasonably incurred
in connection with investigating or defending any such claim, loss, damage,
liability or action; provided, however, that the Company will not be liable in
any such case to the extent that any such claim, loss, damage or liability
arises out of or is based on any untrue statement or omission based upon written
information furnished to the Company in an instrument duly executed by such
Holder, underwriter, officer, director, partner or controlling person and stated
to be specifically for use in such Registration Statement, Prospectus, offering
circular or other document.
(b) Indemnification by Each Holder. Each Holder requesting or
joining in a registration will indemnify each underwriter of the securities so
registered, the Company and its officers and directors and each person, if any,
who controls any thereof (within the meaning of the Securities Act) and their
respective successors in title and assigns against any and all claims, losses,
damages and liabilities (or actions in respect thereof) arising out of or based
on any untrue statement (or alleged untrue statement) of any material fact
contained in any Prospectus, offering circular or other document incident to any
registration, qualification or compliance (or in any related Registration
Statement, notification or the like) or any omission (or alleged omission) to
state therein any material fact required to be stated therein or necessary to
make the statement therein not misleading, and such Holder will reimburse each
underwriter, the Company and each other person indemnified pursuant to this
paragraph (b) for any legal and any other expenses reasonably incurred in
connection with investigating or defending any such claim, loss, damage,
liability or action; provided, however, that this paragraph (b) shall apply only
if (and only to the extent that) such statement or omission was made in reliance
upon written information furnished to such underwriter or the Company in an
instrument duly executed by such Holder and stated to be specifically for use in
such Prospectus, offering circular or other document (or related Registration
Statement, notification or the like) or any amendment or supplement thereto;
and, provided further, that each Holder's liability hereunder with respect to
any particular registration shall be limited to an amount equal to the net
proceeds received by such Holder from the Registrable Securities sold by such
Holder in such registration.
(c) Indemnification Proceedings. Each party entitled to
indemnification pursuant to this Section 8 (the "Indemnified Party") shall give
notice to the party required to provide indemnification pursuant to this Section
8 (the "Indemnifying Party") promptly after such Indemnified Party acquires
actual knowledge of any claim as to which indemnity may be sought, and shall
permit the Indemnifying Party (at its expense) to assume the defense of any
claim or any litigation resulting therefrom; provided that counsel for the
Indemnifying Party, who shall conduct the defense of such claim or litigation,
shall be
11
acceptable to the Indemnified Party, and the Indemnified Party may participate
in such defense at such party's expense; and provided, further, that the failure
by any Indemnified Party to give notice as provided in this paragraph (c) shall
not relieve the Indemnifying Party of its obligations under this Section 8
except to the extent that the failure results in a failure of actual notice to
the Indemnifying Party and such failure actually prejudices such Indemnifying
Party's substantive rights or defenses. No Indemnifying Party, in the defense of
any such claim or litigation, shall, except with the consent of each Indemnified
Party (which consent shall not be unreasonably withheld), 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 Party of a release from all liability in respect to such claim or
litigation. The reimbursement required by this Section 8 shall be made by
periodic payments during the course of the investigation or defense, as and when
bills are received or expenses incurred.
9. Contribution in Lieu of Indemnification. If the indemnification
provided for in Section 8 hereof is unavailable to a party that would have been
an Indemnified Party under any such section in respect of any losses, claims,
damages or liabilities (or actions in respect thereof) referred to therein, then
each party that would have been an Indemnifying Party thereunder shall, in lieu
of indemnifying such Indemnified Party, contribute to the amount paid or payable
by such Indemnified Party as a result of such losses, claims, damages or
liabilities (or actions in respect thereof) in such proportion as is appropriate
to reflect the relative fault of the Indemnifying Party on the one hand and such
Indemnified Party on the other in connection with the statements or omissions
which resulted in such losses, claims, damages or liabilities (or actions in
respect thereof). The relative fault shall be determined by reference to, among
other things, whether the untrue 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 Indemnifying Party or such Indemnified Party and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission. The Company and each Holder of
Registrable Securities agree that it would not be just and equitable if
contribution pursuant to this Section 9 were determined by allocation or by any
other method of allocation which does not take account of the equitable
considerations referred to above in this Section 9. The amount paid or payable
by an Indemnified Party as a result of the losses, claims, damages or
liabilities (or actions in respect thereof) referred to above in this Section 9
shall include any legal or other expenses reasonably incurred by such
Indemnified Party in connection with investigating or defending any such action
or claim. Notwithstanding any provision of this Section 9 to the contrary, (a)
no Person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Securities Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation and (b) each Holder's
liability hereunder with respect to any particular Registration shall be limited
to an amount equal to the net proceeds received by such Holder from the
Registrable Securities sold by such Holder in such Registration.
10. Rule 144 Requirements; Form S-3. From time to time after the
earlier to occur of (a) the ninetieth (90th) day following the date on which
there shall first become effective a Registration Statement filed by the Company
under the Securities Act, or (b) the date on which the Company shall register a
class of securities under Section 12 of the Exchange Act, the Company will make
every effort in good faith to timely file all reports required by the Securities
Exchange Act of 1934, as amended and to make publicly available and available to
the Holders of Registrable Securities, pursuant to Rule 144 or Rule 144A of the
Commission under the Securities Act, such information as shall be necessary to
enable the Holders of Registrable Securities to make sales of Registrable
Securities pursuant to such Rules. In addition, once the Company becomes
eligible to register securities on Form S-2 or Form S-3 (or any comparable form
adopted by the Commission), the Company will make every effort in good faith to
ensure that the Company thereafter retains such eligibility therefor. The
Company will furnish to any Holder of Registrable Securities, upon reasonable
request made by such Holder at any time after the undertaking of the Company in
the preceding sentence shall have first become effective, a written statement
signed by the Company, addressed to such Holder, describing briefly the action
the Company has taken or proposes to take to comply with the current public
information requirements of Rule 144 and Rule 144A. The Company will, at the
reasonable request of any Holder of Registrable Securities, upon receipt from
such Holder of a certificate certifying (i) that such Holder has held such
Registrable
12
Securities for the applicable holding period under Rule 144 with respect to such
Holder's possession of such Registrable Securities, as in effect on the date of
such certificate, (ii) that such Holder has not been an affiliate (as defined in
Rule 144) of the Company for more than the ninety (90) preceding days, and (iii)
as to such other matters as may be appropriate in accordance with such Rule,
remove from the stock certificates representing such Registrable Securities that
portion of any restrictive legend which relates to the registration provisions
of the Securities Act.
11. Participation in Underwritten Registrations. (a) No Person may
participate in any underwritten registration pursuant to this Agreement unless
such Person (i) agrees to sell such Person's securities on the basis provided in
any underwriting arrangements approved by the persons entitled, under the
provisions hereof, to approve such arrangements, and (ii) completes and executes
all questionnaires, powers of attorney, indemnities, underwriting agreements and
other documents reasonably required by the terms of such underwriting
arrangements. Any Holder of Registrable Securities to be included in any
underwritten Registration shall be entitled at any time to withdraw such
Registrable Securities from such Registration prior to its effective date in the
event that such Holder shall disapprove of any of the terms of the related
underwriting agreement, provided that, any such Holder shall use its good faith
efforts to advise the Company as promptly as practicable of its determination to
so withdraw.
12. Miscellaneous.
(a) No Inconsistent Agreements. The Company has not previously
entered into any agreement with respect to its Common Stock granting any
registration rights to any Person, and will not on or after the date of this
Agreement enter into any agreement with respect to its securities which grants
demand registration rights to anyone or which is inconsistent with the rights
granted to the Holders of Registrable Securities in this Agreement or otherwise
conflicts with the provisions hereof.
(b) Amendments and Waivers. The provisions of this Agreement,
including the provisions of this sentence, may not be amended, modified or
supplemented, and waivers or consents to departures from the provisions hereof
may not be given, unless such amendment, modification, supplement, waiver or
consent is approved in writing by the Holders of at least a majority of the
Registrable Securities and the Company.
(c) Registrable Securities Held by the Company. Whenever the
consent or approval of Holders of Registrable Securities is required pursuant to
this Agreement, Registrable Securities held by the Company shall not be counted
in determining whether such consent or approval was duly and properly given by
such Holders.
(d) Term. The agreements of the Company contained in this
Agreement shall continue in full force and effect so long as any Holder holds
any Registrable Securities.
(e) Remedies. In the event of a breach by the Company of its
obligations under this Agreement, each Holder, in addition to being entitled to
exercise all rights granted by law, including recovery of damages, will be
entitled to specific performance of its rights under this Agreement. The Company
agrees that monetary damages would not be adequate compensation for any loss
incurred by reason of a breach by it of any of the provisions of this Agreement
and hereby agrees to waive the defense in any action for specific performance
that a remedy at law would be adequate.
(f) Notices. Any notice provided for in this Agreement will be
in writing and will be deemed properly delivered if either personally delivered
or sent by overnight courier or telecopier or mailed (via first class),
certified or registered mail, return receipt requested, postage prepaid, to the
recipient at the address specified below:
(i) if to a Holder, at such Holder's address on the stock
transfer books of the Company; and
13
(ii) if to the Company at:
Xxxx X. Xxxxxxx
c/o Merchant Financial, Inc.
00000 Xxxx Xxxxxxxxx
Xxxxxx Xxxxxx Xxxx, Xxxxxxxx 00000
(000-000-0000; fax 000-000-0000)
and to:
Xxxxxxx X. Xxxxxxx
c/o Inmet Corporation
000 Xxxx Xxxxx
Xxx Xxxxx, Xxxxxxxx 00000-0000
(000-000-0000; fax 000-000-0000)
with courtesy a copy to:
Xxxxxx Xxxxxxx PLLC
000 Xxxxxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000-0000
(000-000-0000; fax 000-000-0000)
Attention: J. Xxxxxxx Xxxxxxx
and thereafter at such other address, notice of which is given in accordance
with the provisions of this Section 12(f). Any such notice shall be effective
(A) if delivered personally or by telecopy, when received, (B) if sent by
overnight courier, when receipted for, and (C) if mailed, three (3) days after
being mailed as described above.
(g) Successors and Assigns. This Agreement and the rights of
any Holder hereunder may be assigned to, and shall inure to the benefit of, any
Person to whom such Holder transfers Registrable Securities, provided that such
transfer is made in compliance with the provisions of the Stockholder Agreement
and the transferee agrees to be bound by all of the terms and conditions of this
Agreement by executing and delivering to the Company an Instrument of Accession.
(h) Counterparts. This Agreement may be executed in two or
more 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 instrument.
(i) Headings. The headings in this Agreement are for
convenience of reference only and shall not constitute a part of this Agreement,
nor shall they affect their meaning, construction or effect.
(j) Governing Law. The validity, performance, construction and
effect of this Agreement shall be governed by and construed in accordance with
the internal laws of the State of Michigan, without giving effect to principles
of conflicts of law.
(k) Severability. In the event that any one or more of the
provisions contained herein, or the application thereof in any circumstance, is
held invalid, illegal or unenforceable, the validity, legality and
enforceability of any such provision in every other respect and of the remaining
provisions contained herein shall not be affected or impaired thereby.
(l) Entire Agreement. This Agreement is intended by the
parties as a final expression of their agreement and intended to be a complete
and exclusive statement of the agreement and
14
understanding of the parties hereto in respect of the subject matter contained
herein. There are no restrictions, promises, warranties or undertakings, other
than those set forth or referred to herein, with respect to the registration
rights granted by the Company with respect to the Registrable Securities. This
Agreement supersedes all prior agreements and understandings between the parties
with respect to such subject matter.
[Signature page follows.]
IN WITNESS WHEREOF, the parties have executed this Agreement
as an instrument under seal as of the date first written above.
MICROWAVE COMPONENTS ENTERPRISES,
INC.
By: /s/ Xxxx X. Xxxxxxx
---------------------------------
Title: President
XXXXXXX XXXXXX MEZZANINE FUND, L.P.
By: XXXXXXX XXXXXX CAPITAL
PARTNERS LLP, its General Partner
By: /s/ Xxxxxx X. Xxxxx
---------------------------------
Title: Managing Partner
NATIONAL CITY CAPITAL CORPORATION
By: /s/ Xxxxxxx X. Xxxxxxxx
---------------------------------
Title: Managing Director
15
SCHEDULE 1
TO REGISTRATION RIGHTS AGREEMENT
Instrument of Accession
Reference is made to that certain Registration Rights
Agreement dated as of July __, 1996, a copy of which is attached hereto (as
amended and in effect from time to time, the "Registration Rights Agreement"),
among Microwave Components Enterprises, Inc. (the "Company"), and the Holders
(as defined therein).
The undersigned, _________________________, in order to become
the owner or holder of shares of the Common Stock, without par value per share
(the "Shares") of the Company hereby agrees that by his execution hereof the
undersigned is a Holder party to the Registration Rights Agreement subject to
all of the restrictions and conditions applicable to Holders set forth in such
Registration Rights Agreement, and all of the Shares purchased by the
undersigned in connection herewith (and any and all shares of stock of the
Company issued in respect thereof) are subject to all the restrictions and
conditions applicable to Registrable Securities as set forth in the Registration
Rights Agreement. This Instrument of Accession shall take effect and shall
become a part of said Registration Rights Agreement immediately upon execution.
Executed as of the date set forth below under the laws of the
State of Michigan.
Signature: ____________________________
Address: ____________________________
_____________________________
_____________________________
Date: ____________________________
Accepted:
MICROWAVE COMPONENTS ENTERPRISES, INC.
By:___________________________
Date:_________________________
16
FIRST AMENDMENT TO REGISTRATION RIGHTS AGREEMENT
THIS FIRST AMENDMENT TO REGISTRATION RIGHTS AGREEMENT, dated
as of October 17, 1997, is among MICROWAVE COMPONENTS ENTERPRISES, INC., a
Michigan corporation (the "Company"), XXXXXXX XXXXXX MEZZANINE FUND, L.P.
("HI"), and NATIONAL CITY CAPITAL CORPORATION ("NCCC"; together with HI, the
"Holders", and each individually a "Holder").
WITNESSETH THAT:
WHEREAS, the Company and the Holders entered into a
Registration Rights Agreement, dated July 23, 1996 (the "Registration Rights
Agreement"); and
WHEREAS, the parties desire to amend the Registration Rights
Agreement as set forth herein;
NOW, THEREFORE, in consideration of the premises and the
mutual covenants and agreements contained herein, the parties hereto agree as
follows:
1. Effect of Amendment; Definitions.
The Registration Rights Agreement shall be and hereby is
amended as provided in Section 2 hereof. Except as expressly amended in Section
2 hereof, the Registration Rights Agreement shall continue in full force and
effect in accordance with its respective provisions on the date hereof. As used
in the Registration Rights Agreement, the terms "this Agreement", "herein",
"hereinafter", "hereto", "hereof", and words of similar import shall, unless the
context otherwise requires, mean the Registration Rights Agreement as amended
and modified by this Amendment.
2. Amendments. The definition of "Warrants" in Section 1
of the Registration Rights Agreement shall be amended by deleting the same and
substituting in lieu thereof the following:
"Warrants" means (a) the Warrants issued to HI and
NCCC pursuant to the Purchase Agreement, (b) any other
"Warrants", as defined in each of such Warrants, and (c) any
warrants issued upon transfer, exchange or replacement
thereof.
3. Miscellaneous.
(A) This Amendment shall be construed in accordance with and
governed by the laws of the State of Michigan, without reference to principles
of conflict of laws.
17
(B) The execution, delivery and performance by the Holder of
this Amendment shall not constitute, or be deemed to be or construed as, a
waiver of any right, power or remedy of the Holder, or a waiver of any provision
of the Registration Rights Agreement.
(C) This Amendment may be executed in two or more
counterparts, each of which shall constitute an original, but all of which, when
taken together, shall constitute but one instrument. The Company agrees to pay
on demand all costs and expenses of the Holder, including reasonable attorneys'
fees and expenses, in connection with the preparation, execution and delivery of
this Amendment.
IN WITNESS WHEREOF, the parties have caused this Amendment to
be duly executed as of the day and year first above written.
MICROWAVE COMPONENTS ENTERPRISES, INC.
By: /s/ Xxxx X. Xxxxxxx
-------------------------------------
Print Name: Xxxx X. Xxxxxxx
-----------------------------
Title: President
----------------------------------
NATIONAL CITY CAPITAL CORPORATION
By: /s/ Xxxxxxx X. Xxxxxxxx
-------------------------------------
Print Name: Xxxxxxx X. Xxxxxxxx
-----------------------------
Title: Managing Director
----------------------------------
XXXXXXX XXXXXX MEZZANINE FUND, L.P.
By: /s/ Xxxxxx X. Xxxxx
-------------------------------------
Print Name: Xxxxxx X. Xxxxx
-----------------------------
Title: Managing Partner
----------------------------------
-2-
18
SECOND AMENDMENT TO REGISTRATION RIGHTS AGREEMENT
THIS SECOND AMENDMENT TO REGISTRATION RIGHTS AGREEMENT, dated
as of October 13, 2000, is among MCE COMPANIES, INC., a Michigan corporation
and formerly known as MICROWAVE COMPONENTS ENTERPRISES, INC. (the "Company"),
XXXXXXX XXXXXX MEZZANINE FUND, L.P. ("HI"), and NATIONAL CITY CAPITAL
CORPORATION ("NCCC"; together with HI, the "Holders", and each individually a
"Holder").
WITNESSETH THAT:
WHEREAS, the Company and the Holders entered into a
Registration Rights Agreement, dated July 23, 1996, as amended by the First
Amendment to Registration Rights Agreement (the "Registration Rights
Agreement"); and
WHEREAS, the parties desire to amend the Registration Rights
Agreement as set forth herein;
NOW, THEREFORE, in consideration of the premises and the
mutual covenants and agreements contained herein, the parties hereto agree as
follows:
1. Effect of Amendment; Definitions.
Effective upon the closing of the IPO contemplated by
that certain Equity Underwriting Agreement to be entered into by the Company,
certain warrantholders and the several underwriters named therein, the
Registration Rights Agreement shall be and hereby is amended as provided in
Section 2 hereof. Except as expressly amended in Section 2 hereof, the
Registration Rights Agreement shall continue in full force and effect in
accordance with its respective provisions on the date hereof. As used in the
Registration Rights Agreement, the terms "this Agreement", "herein",
"hereinafter", "hereto", "hereof", and words of similar import shall, unless the
context otherwise requires, mean the Registration Rights Agreement as amended
and modified by this Amendment.
2. Amendments.
(A) The definition of "Registrable Securities" in Section 1 of
the Registration Rights Agreement shall be amended by deleting clause (b)
thereof and substituting in lieu thereof:
"(b) all shares of Common Stock issued to or
purchased by any of the Holders from time to time other than
upon exercise of any of the Warrants, including any shares of
Common Stock issued in connection with any conversion,
exchange, surrender, conveyance, cancellation or release of
any of the Warrants or other transaction involving any of the
Warrants, and all warrants and options of any of the Holders
that may be exercised for Common Stock,"
(B) The definition of "Warrants" in Section 1 of the
Registration Rights Agreement shall be amended by deleting the same and
substituting in lieu thereof the following:
""Warrants" means (a) the Warrants issued to HI and
NCCC pursuant to the Purchase Agreement, (b) any other
"Warrants", as defined in each of such Warrants, and (c) any
warrants issued upon transfer, exchange or replacement
thereof, all as the same may be amended, modified or
supplemented from time to time."
19
(C) The second sentence of Section 2(a)(i) of the Registration
Rights Agreement shall be amended by inserting the phrase "and after" between
the words "upon" and "the".
(D) Section 2(b)(ii) of the Registration Rights Agreement
shall be amended by deleting the same and inserting in lieu thereof the
following:
"(ii) The Holders will not be entitled to require the Company
to effect more than four (4) Demand Registrations."
(E) Section 7(a) of the Registration Rights Agreement shall be
amended by inserting the following sentence after the end of the first sentence
in Section 7(a):
"Notwithstanding the foregoing sentence, in the event that the
Holders have initiated two Demand Registrations that have both
resulted in Registrations that have become effective and that
count as Demand Registrations for purposes of Sections 2(b)(i)
and (ii) of this Agreement, the Registration Expenses incurred
in connection with any subsequent Demand Registration under
this Agreement shall be borne and paid pro rata by the
Holders, the Company and any other persons that include any
securities in that Registration, if and to the extent
permitted under Section 2(c) of this Agreement, on the basis
of the number of Registrable Securities so registered by each
of them."
3. Miscellaneous.
(A) This Amendment shall be construed in accordance with and
governed by the laws of the State of Michigan, without reference to principles
of conflict of laws.
(B) The execution, delivery and performance by the Holder of
this Amendment shall not constitute, or be deemed to be or construed as, a
waiver of any right, power or remedy of the Holder, or a waiver of any provision
of the Registration Rights Agreement.
(C) This Amendment may be executed in two or more
counterparts, each of which shall constitute an original, but all of which, when
taken together, shall constitute but one instrument. The Company agrees to pay
on demand all costs and expenses of the Holder, including reasonable attorneys'
fees and expenses, in connection with the preparation, execution and delivery of
this Amendment.
20
IN WITNESS WHEREOF, the parties have caused this Amendment to
be duly executed as of the day and year first above written.
MCE COMPANIES, INC.
By: /s/ Xxxx X. Xxxxxxx
-------------------------------
Title: President
NATIONAL CITY CAPITAL CORPORATION
By: /s/ Xxxxxxx X. Xxxxxxxx
-------------------------------
Title: Managing Director
XXXXXXX XXXXXX MEZZANINE FUND, L.P.
By: XXXXXXX XXXXXX CAPITAL
PARTNERS LLP, its General Partner
By: /s/ Xxxxxxx X. Xxxxxxxx
-------------------------------
Title: Attorney-In-Fact
