Exhibit 10.1
JOINDER AGREEMENT
This JOINDER AGREEMENT (the "Agreement") is dated as of January 15,
2010 by and among CalAmp Corp., a Delaware corporation whose address is 1401
N. Rice Avenue, Oxnard, CA 93030 (the "Company"), the Domestic Subsidiaries
of the Company from time to time party hereto, including CalAmp Products,
Inc., a Delaware corporation whose address is 1401 N. Rice Avenue, Oxnard, CA
93030, CalAmp Datacom, Inc., a Delaware corporation whose address is 1401 N.
Rice Avenue, Oxnard, CA 93030 and Dataradio Corporation, a Delaware
corporation whose address is 1401 N. Rice Avenue, Oxnard, CA 93030, and the
Purchasers listed on Schedule II hereto.
REFERENCE IS MADE to the Subordinated Note and Warrant Purchase
Agreement dated as of December 22, 2009 (the "Purchase Agreement") by and
among the Company, the Domestic Subsidiaries of the Company from time to time
party thereto, including CalAmp Products, Inc., a Delaware corporation whose
address is 1401 N. Rice Avenue, Oxnard, CA 93030, and Dataradio Corporation,
a Delaware corporation whose address is 1401 N. Rice Avenue, Oxnard, CA
93030, and the Purchasers listed on Schedule I thereto (the "Initial Closing
Purchasers"). Capitalized terms used but not otherwise defined herein shall
have the meanings set forth in such Purchase Agreement.
WHEREAS, pursuant to the Purchase Agreement, the Company has issued and
sold to the Initial Closing Purchasers, severally, and not jointly, Notes
with an aggregate principal amount of One Million Nine Hundred Twenty Five
Thousand and No/100ths Dollars ($1,925,000.00) and Warrants to purchase up to
an aggregate of 192,500 shares of Common Stock;
WHEREAS, pursuant to the Purchase Agreement, the Company desires to
sell and issue to the Purchasers listed on Schedule II hereto, and the
Purchasers listed on Schedule II hereto desire to purchase from the Company,
severally, and not jointly, Notes with an aggregate principal amount of up to
Three Million Seventy Five Thousand and No/100ths Dollars ($3,075,000) and
Warrants to purchase up to an aggregate of 307,500 shares of Common Stock;
and
WHEREAS, in furtherance of the foregoing, the parties hereto desire to
enter into this Agreement to provide for such purchase and sale to the
Purchasers listed on Schedule II hereto and to cause the Purchasers listed on
such Schedule II to join the Purchase Agreement, the Guarantee Agreement, the
Non-Guarantor Subordination Agreement and the Registration Rights Agreement
(collectively, the "Joined Documents");
NOW, THEREFORE, in consideration of the foregoing and the covenants set
forth herein, the parties hereto, intending to be legally bound, hereby agree
as follows:
1. Joinder.
1.1. Purchase Agreement. The Purchasers listed on Schedule II hereto
hereby join the Purchase Agreement as Purchasers with respect to the Second
Closing. In furtherance of the foregoing, each such Purchaser listed on
Schedule II hereto shall be entitled to all rights and privileges of a
Purchaser thereunder with respect to the Second Closing and hereby severally,
and not jointly, agrees to perform the obligations of such a Purchaser. By
execution hereof, the parties hereby ratify and confirm all of the terms,
conditions and obligations contained in such Purchase Agreement as if set
forth in their entirety herein. The Purchase Agreement is hereby amended to
provide for the joinder set forth in this Section 1.1 and to attach Schedule
II hereto as an additional schedule to such Purchase Agreement.
1.2. Guarantee Agreement, Non-Guarantor Subordination Agreement and
Registration Rights Agreement. From and after the Second Closing, the
Purchasers listed on Schedule II hereto hereby join the Guarantee Agreement,
the Non-Guarantor Subordination Agreement and the Registration Rights
Agreement as Purchasers. In furtherance of the foregoing, each such
Purchaser listed on Schedule II hereto shall be entitled to all rights and
privileges of a Purchaser thereunder and hereby severally, and not jointly,
agrees to perform the obligations of such a Purchaser. By execution hereof,
the parties hereby ratify and confirm all of the terms, conditions and
obligations contained in such Guarantee Agreement, Non-Guarantor
Subordination Agreement and Registration Rights Agreement as if set forth in
their entirety herein. From and after the Second Closing, each of the
Guarantee Agreement, the Non-Guarantor Subordination Agreement and the
Registration Rights Agreement is hereby amended to provide for the joinder
set forth in this Section 1.2 and to attach Schedule II hereto as an
additional schedule to such agreements.
2. Purchase and Sale. Subject to all the terms and conditions of the
Purchase Agreement and this Agreement, and so long as no Default exists, on
the Second Closing Date, the Company shall issue and sell to the Purchasers
listed on Schedule II hereto, and such Purchasers shall purchase from the
Company, severally and not jointly, Notes with the principal balances set
forth opposite such Purchasers' respective names on such Schedule II at a
purchase price equal to 100% of the original principal balance of each Note.
In connection with such issuance of Notes, the Company shall issue to such
Purchasers, severally and not jointly, Warrants to purchase such number of
shares of Common Stock set forth opposite such Purchasers' respective names
on Schedule II hereto.
3. Representations and Warranties of the Company and the Guarantors. In
order to induce the Purchasers listed on Schedule II hereto to purchase the
Notes hereunder, each of the Company and the Guarantors jointly and severally
makes the representations and warranties set forth in Section 8 of the
Purchase Agreement to such Purchasers, which representations and warranties
shall also be true and correct in all material respects as of the Second
Closing Date.
4. Representations and Warranties of the Purchasers. In order to induce the
Company to sell the Notes and issue the Warrants to the Purchasers listed on
Schedule II hereto, each of the Purchasers, severally and not jointly, makes
the representations and warranties set forth in Section 9 of the Purchase
Agreement to the Company, which representations and warranties shall also be
true and correct as of the Second Closing Date. Without limiting the
foregoing, such Purchaser specifically represents and warrants to the
Company, severally and not jointly, that:
4.1. Receipt of Documents. Such Purchaser has received executed copies
of all the Joined Documents, including without limitation the Purchase
Agreement, and has had the opportunity to ask questions and receive answers
from the Company regarding the Company and its Subsidiaries' business,
management and financial affairs, the terms and conditions of the offering,
the Joined Documents, the Notes and the Warrants, and to obtain additional
information necessary to verify any information furnished to such Purchaser
or to which such Purchaser had access.
4.2. Acquisition for Own Account. Such Purchaser is acquiring the
Notes and Warrants for such Purchaser's own account for investment only, and
not with a view towards or for resale in connection with their distribution
in violation of the Securities Act.
4.3. Purchaser Can Protect Its Interest. Such Purchaser represents
that by reason of its, or of its management's, business and financial
experience, such Purchaser has the capacity to evaluate the merits and risks
of its investment in the Notes and Warrants and to protect its own interests
in connection with the transactions contemplated in this Agreement and the
Joined Documents. Such Purchaser is aware of no publication or any
advertisement in connection with the transactions contemplated in this
Agreement or the Joined Documents. Such Purchaser has obtained counsel and
advice from its own legal, tax, and other advisers in connection with the
transactions contemplated by this Agreement and the Joined Documents and is
not relying on any such counsel or advice from Company Counsel, the
Investment Bank's counsel, the Company or any of its or their
representatives.
4.4. Accredited Investor. Such Purchaser represents that it is an
"accredited investor" within the meaning of Regulation D under the Securities
Act.
5. WAIVER OF JURY TRIAL. TO THE EXTENT NOT PROHIBITED BY APPLICABLE LAW THAT
CANNOT BE WAIVED, EACH OF THE COMPANY, THE OTHER OBLIGORS AND THE PURCHASERS
WAIVES, AND COVENANTS THAT IT WILL NOT ASSERT (WHETHER AS PLAINTIFF,
DEFENDANT OR OTHERWISE), ANY RIGHT TO TRIAL BY JURY IN ANY FORUM IN RESPECT
OF ANY ISSUE, CLAIM OR PROCEEDING ARISING OUT OF OR RELATING TO THIS
AGREEMENT, THE JOINED DOCUMENTS OR ANY OTHER CREDIT DOCUMENT OR THE CONDUCT
OF THE PARTIES HERETO, WHETHER NOW EXISTING OR HEREAFTER ARISING AND WHETHER
IN CONTRACT, TORT OR OTHERWISE. Each of the Company and the other Obligors
acknowledges that it has been informed by the Purchasers that the foregoing
sentence constitutes a material inducement upon which each of the Purchasers
has relied and will rely in entering into this Agreement, the Joined
Documents and any other Credit Document. Any Purchaser, the Company or any
other Obligor may file an original counterpart or a copy of this Agreement
with any court as written evidence of the consent of the Company, the other
Obligors and the Purchasers to the waiver of their rights to trial by jury.
6. Dispute Resolution. Any controversy, dispute or claim between the parties
based upon, arising out of, or in any way relating to: (i) this Agreement,
the Joined Documents or any supplement or amendment hereto or thereto; or
(ii) any breach, conduct, acts or omissions of any of the parties hereto or
any of their respective directors, officers, employees, agents, attorneys or
any other person affiliated with or representing any of the parties hereto;
in each of the foregoing cases, whether sounding in contract or tort or
otherwise (a "Dispute") shall be resolved exclusively by judicial reference
in accordance with Sections 638 et seq. of the California Code of Civil
Procedure ("CCP") and Rules 3.900 et seq. of the California Rules of Court
("CRC"), subject to the following terms and conditions. (All references in
this section to provisions of the CCP and/or CRC shall be deemed to include
any and all successor provisions.)
(a). The reference shall be a consensual general reference
pursuant to CCP Sections 638 and 644(a). Unless the parties otherwise agree
in writing, the reference shall be to a single referee. The referee shall be
a retired Judge of the Los Angeles County Superior Court ("Superior Court")
or a retired Justice of the California Court of Appeal or California Supreme
Court. Nothing in this section shall be construed to limit the right of
Purchasers, pending or after the appointment of the referee, to seek and
obtain a temporary restraining order and/or preliminary injunction, or other
"provisional remedy" (as such term is defined in CCP Section 1281.8).
(b). Within fifteen (15) days after a party gives written notice
in accordance with this Agreement to all other parties to a Dispute that the
Dispute exists, all parties to the Dispute shall attempt to agree on the
individual to be appointed as referee. If the parties are unable to agree on
the individual to be appointed as referee, the referee shall be appointed,
upon noticed motion or ex parte application by any party, by the Superior
Court in accordance with CCP Section 640, subject to all rights of the
parties to challenge or object to the appointment, including without
limitation the right to peremptory challenge under CCP Section 170.6. If the
referee (or any successor referee) appointed by the Superior Court is unable,
or at any time becomes unable, to serve as referee in the Dispute, the
Superior Court shall appoint a new referee as agreed to by the parties or, if
the parties cannot agree, in accordance with CCP Section 640, which new
referee shall then have the same powers, and be subject to the same terms and
conditions, as the predecessor referee.
(c). Venue for all proceedings before the referee, and for any
Superior Court proceeding for the appointment of the referee, shall be
exclusively within the County of Los Angeles, State of California. The
referee shall have the exclusive power to determine whether a Dispute is
subject to judicial reference pursuant to this section. Trial, and all
proceedings and hearings on dispositive motions, conducted before the referee
shall be conducted in the presence of, and shall be transcribed by, a court
reporter, unless otherwise agreed in writing by all parties to the
proceeding. The referee shall issue a written statement of decision, which
shall be subject to objections of the parties pursuant to CRC Rule 3.1590 as
if the statement of decision were issued by the Superior Court. The referee's
powers include, in addition to those set forth in CCP Sections 638, et seq.,
and CRC Rules 3.900 et seq., (i) the power to grant provisional relief,
including without limitation, writ of attachment, writ of possession,
appointment of a receiver, temporary restraining order and/or preliminary
injunction, or other "provisional remedy" (as such term is defined in CCP
Section 1281.8), and (ii) the power to hear and resolve all post-trial
matters in connection with the Dispute that would otherwise be determined by
the Superior Court, including without limitation motions for new trial,
reconsideration, to vacate judgment, to stay execution or enforcement, to tax
costs, and/or for attorneys' fees. The Purchasers and the Obligors shall,
subject to the referee's power to award costs to the prevailing party, bear
equally (as between the Purchasers and the Obligors) the costs of the
reference proceeding, including without limitation the fees and costs of the
referee and the court reporter.
(d). The parties acknowledge and agree that (i) the referee alone
shall determine all issues of fact and/or law in the Dispute, without a jury
(subject, however, to the right of a party, pending or after the appointment
of the referee, to seek and obtain provisional relief from the Superior Court
or such referee, including without limitation, writ of attachment, writ of
possession, appointment of a receiver, temporary restraining order and/or
preliminary injunction, or other "provisional remedy" (as such term is
defined in CCP Section 1281.8)), (ii) the referee does not have the power to
empanel a jury, (iii) the Superior Court shall enter judgment on the decision
of the referee pursuant to CCP Section 644(a) as if the decision were issued
by the Superior Court, (iv) the decision of the referee shall not be subject
to review by the Superior Court, and (v) the decision of the referee, once
entered as a judgment by the Superior Court, shall be binding, final and
conclusive, shall have the full force and effect of a judgment of the
Superior Court, and shall be subject to appeal to the same extent as a
judgment of the Superior Court.
7. Interpretation; Governing Law; etc. Time is (and shall be) of the essence
in this Agreement and the other Credit Documents. All covenants, agreements,
representations and warranties made in this Agreement or any other Credit
Document or in certificates delivered pursuant hereto or thereto shall be
deemed to have been relied on by each Purchaser, notwithstanding any
investigation made by any Purchaser on its behalf, and shall survive the
execution and delivery to the Purchasers hereof and thereof. The invalidity
or unenforceability of any provision hereof shall not affect the validity or
enforceability of any other provision hereof, and any invalid or
unenforceable provision shall be modified so as to be enforced to the maximum
extent of its validity or enforceability. The headings in this Agreement are
for convenience of reference only and shall not limit or otherwise affect the
meaning hereof. This Agreement, the Joined Documents and the other Credit
Documents constitute the entire understanding of the parties with respect to
the subject matter hereof and thereof and supersede all prior and
contemporaneous understandings and agreements, whether written or oral. This
Agreement may be executed in any number of counterparts, by original or
facsimile signature, each of which shall be deemed to constitute and original
and together shall constitute one instrument. This Agreement, and any issue,
claim or proceeding arising out of or relating to this Agreement, the Joined
Documents or any other Credit Document or the conduct of the parties hereto,
whether now existing or hereafter arising and whether in contract, tort or
otherwise, shall be governed by and construed in accordance with the laws
(other than the conflict of laws rules) of the State of California.
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IN WITNESS WHEREOF, the undersigned have executed this Agreement
effective as of the date and year first above written.
COMPANY
CALAMP CORP.
By: /s/ Richard Vitelle
-------------------
Richard Vitelle
VP Finance & CFO
GUARANTORS
CALAMP PRODUCTS, INC.
By: /s/ Richard Vitelle
-------------------
Richard Vitelle
Treasurer
DATARADIO CORPORATION
By: /s/ Richard Vitelle
-------------------
Richard Vitelle
Treasurer
PURCHASER
Dialectic Capital
By: /s/ John Fichthorn
------------------
Name: John Fichthorn
Title: Managing Member
PURCHASER
Barels Charitable Remainder Trust
By: /s/ Larry Barels
----------------
Name: Larry Barels
Title: Trustee
PURCHASER
Theodore J. Schneider
By: /s/ Theodore J. Schneider
-------------------------
Title: Theodore J. Schneider
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Schedule II
SECOND CLOSING PURCHASERS
Purchaser Name Notes Warrants
Dialectic Capital Partners, LP $ 620,000 62,000
Dialectic Offshore, LTD $ 380,000 38,000
Dialectic Antithesis Partners, LP $ 860,000 86,000
Dialectic Antithesis Offshore, LTD $ 1,140,000 114,000
Barels Charitable Remainder Trust $ 50,000 5,000
Theodore J. Schneider $ 25,000 2,500
Total $ 3,075,000 307,500