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EXHIBIT 4.1
AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT dated as of
September 6, 2000 by and among CENTURION INTERNATIONAL, INC., a Nebraska
corporation, (the "Company"), CORNERSTONE EQUITY INVESTORS IV, L.P., a Delaware
limited partnership ("Cornerstone"), PRUDENTIAL PRIVATE EQUITY INVESTORS III,
L.P., a Delaware limited partnership ("PPEI"), KUCK INVESTMENT PARTNERS, L.P., a
Delaware limited partnership ("Kuck"), JAMES A. BOYLE, MICHAEL MCGINLEY, PETER
CROWLEY (collectively, the "Sigma Stockholders"), RANDOLPH STREET PARTNERS III
("Randolph"), K&E Investment Partners, LLC-2000DIF ("K&E"), P. JACKSON BELL,
BEHLMAN FAMILY REVOCABLE TRUST ("BEHLMAN"), AND THE STATE OF WISCONSIN
INVESTMENT BOARD ("Wisconsin"). Capitalized terms used herein but not otherwise
defined have the meaning set forth in Section 1.
WHEREAS, Cornerstone and PPEI have purchased from the Company
(a) certain shares of the Common Stock of the Company, par value $0.01 per share
(the "Common Stock"), (b) certain shares of the Series B Redeemable Preferred
Stock of the Company, par value $0.01 per share, and (c) certain subordinated
notes of the Company, in each case, pursuant to the terms and conditions of the
Recapitalization Agreement;
WHEREAS, Kuck is the owner of 100,000 shares of the Common
Stock and has received 160,000 shares of the Company's Series A Convertible
Preferred Stock, par value (the "Series A Preferred Stock") $0.01 per share
pursuant to the terms and conditions of the Recapitalization Agreement;
WHEREAS, each of the Sigma Stockholders is the owner of (a)
certain shares of Common Stock and (b) certain shares of Series B Preferred
Stock, in each case, pursuant to the terms and conditions of the Subscription
Agreement;
WHEREAS, PPEI, Cornerstone, Wisconsin, Kuck, Randolph, K&E, P.
Jackson Bell and Behlman have purchased from the Company certain shares of the
Series C Convertible Preferred Stock of the Company, par value $0.01 per share
(the "Series C Preferred Stock"), pursuant to the terms of the Securities
Purchase Agreement; and
WHEREAS, the parties hereto wish to amend and restate the
Registration Rights Agreement dated as of April 18, 1997 by and among the
Company, Cornerstone, PPEI, Kuck and certain other shareholders of the Company.
NOW, THEREFORE, in consideration of the mutual covenants
contained herein and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties to this Agreement
hereby agree as follows:
1. Definitions. As used herein, the following terms shall have
the following meanings.
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"Common Stock" means, collectively, the Common Stock and any
capital stock of the Company issued or issuable with respect thereto by way of a
stock split or in connection with a combination of shares, recapitalization,
merger, consolidation or other reorganization.
"Cornerstone Registrable Securities" means the Registrable
Securities originally issued to Cornerstone or its affiliates pursuant to the
Recapitalization Agreement or otherwise acquired by or issued to Cornerstone or
its affiliates on or after April 18, 1997; except that Cornerstone Registrable
Securities do not include any Series C Registrable Securities.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Kuck Registrable Securities" means the Registrable
Securities originally issued to Kuck or its affiliates (including, without
limitation, Lance J. Kuck and Scott M. Kuck) pursuant to the Recapitalization
Agreement or otherwise acquired by or issued to Kuck or its affiliates on or
after April 18, 1997; except that Kuck Registrable Securities do not include any
Series C Registrable Securities.
"Listing" means the admission of the Company's Common Stock on
any stock exchange or the sale of the Company's Common Stock in an underwritten
public offering registered under the Securities Act.
"Person" means an individual, a partnership, a corporation, an
association, a joint stock company, a limited liability company, a trust, a
joint venture, an unincorporated organization and a governmental entity or any
department, agency or political subdivision thereof.
"PPEI Registrable Securities" means the Registrable
Securities originally issued to PPEI or its affiliates pursuant to the
Recapitalization Agreement or otherwise acquired by or issued to PPEI or its
affiliates on or after April 18, 1997; except that PPEI Registrable Securities
do not include any Series C Registrable Securities.
"Recapitalization Agreement" shall mean the Recapitalization
Agreement by and among the Company, Cornerstone, PPEI, Kuck, Lance J. Kuck,
Scott M. Kuck and P. Jackson Bell, dated as of April 18, 1997.
"Registrable Securities" means (i) any shares of Common Stock
acquired by, or issued or issuable to any of the parties hereto prior to, on or
following the date hereof, and (ii) any capital stock of the Company issued or
issuable with respect to the securities referred to in clause (i) above in
connection with a combination or split of shares, recapitalization, merger,
consolidation or other reorganization. For purposes of this Agreement, a Person
will be deemed to be a holder of Registrable Securities whenever such Person has
the right to acquire directly or indirectly such Registrable Securities (upon
conversion or exercise in connection with a transfer of securities or otherwise,
but disregarding any restrictions or limitations upon the exercise of such
right), whether or not such acquisition has actually been effected.
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"Registration Expenses" means all expenses incident to the
Company's performance of or compliance with this Agreement, including without
limitation all registration and filing fees, fees and expenses of compliance
with securities or blue sky laws, printing expenses, messenger and delivery
expenses, and fees and disbursements of counsel for the Company and all
independent certified public accountants, underwriters (excluding discounts and
commissions) and other Persons retained by the Company.
"Rule 144" means Rule 144 under the Securities Act (or any
similar rule then in force).
"SEC" means the Securities and Exchange Commission.
"Securities Act" means the Securities Act of 1933, as amended.
"Securities Purchase Agreement" means the Securities Purchase
Agreement, dated as of the date hereof, by and among the Company and the
purchasers named therein.
"Series C Registrable Securities" means the Registrable
Securities originally issued as Series C Preferred Stock to the purchasers
thereof pursuant to the Securities Purchase Agreement or on or after the date
hereof.
"Sigma Registrable Securities" means the Registrable
Securities originally issued to the Sigma Stockholders or their affiliates
pursuant to the Subscription Agreement or otherwise acquired by or issued to the
Sigma Stockholders or their affiliates on or after June 2, 1999; except that
Sigma Registrable Securities do not include any Series C Registrable Securities.
"Subscription Agreement" means the Subscription Agreement
dated as of June 2, 1999, by and among the Company, James A. Boyle, Michael
McGinley and Peter Crowley.
"Wisconsin Registrable Securities" means the Registrable
Securities originally issued to Wisconsin or its affiliates pursuant to the
Securities Purchase Agreement or otherwise acquired by or issued to Wisconsin or
its affiliates on or after the date hereof.
2. Demand Registrations.
(a) Requests for Registration. Subject to Section 2(b) below,
(i) at any time and from time to time, the holders of a majority of the
Cornerstone Registrable Securities, (ii) at any time and from time to time after
a Listing, the holders of a majority of the Kuck Registrable Securities or the
holders of a majority of the PPEI Registrable Securities, (iii) at any time and
from time to time after the sixth month anniversary of a Listing, the holders of
a majority of the Series C Registrable Securities and (iv) at any time and from
time to time after the six month anniversary of a Listing, the holders of a
majority of the Wisconsin Registrable Securities may request registration,
whether underwritten or otherwise, under the Securities Act of all or part of
the Registrable Securities held by such holders, in each case on Form S-1 or any
similar long-form registration (collectively, "Long-Form Registrations") or on
Form S-2 or S-3 or any similar short-form registration
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("Short-Form Registrations"), if available. In addition, subject to Section 2(g)
below, the holders of a majority of the Cornerstone Registrable Securities or
the PPEI Registrable Securities, as the case may be, may request that the
Company, with respect to any Registrable Securities held by such holders file
with the SEC a registration statement under the Securities Act on any applicable
form pursuant to Rule 415 under the Securities Act (a "415 Registration"). Each
request for a Long-Form Registration or Short-Form Registration shall specify
the approximate number of Registrable Securities requested to be registered and
the anticipated per share price range for such offering. Within ten days after
receipt of any such request for a Long-Form Registration or Short-Form
Registration, (1) the Company will give written notice of such requested
registration to all other holders of Registrable Securities and will include
(subject to the provisions of this Agreement) in such registration, all
Registrable Securities with respect to which the Company has received written
requests for inclusion therein within 20 days after the receipt of the Company's
notice. All registrations requested pursuant to this Section 2(a) are referred
to herein as "Demand Registrations".
(b) Long-Form Registrations. The holders of the Cornerstone
Registrable Securities and the holders of the PPEI Registrable Securities will
each be entitled to request up to five (5) Long-Form Registrations with respect
to Registrable Securities held by such holders, in which the Company will pay
all Registration Expenses. The holders of the Kuck Registrable Securities will
be entitled to request up to three (3) Long-Form Registrations with respect to
Registrable Securities held by such holders, in which the Company will pay all
Registration Expenses. The holders of the Series C Registrable Securities will
be entitled to request one (1) Long-Form Registration with respect to
Registrable Securities held by such holders, in which the Company will pay all
Registration Expenses. The holders of the Wisconsin Registrable Securities will
be entitled to request one (1) Long-Form Registration with respect to
Registrable Securities held by such holders, in which the Company will pay all
Registration Expenses. A registration will not count as a permitted Long-Form
Registration until it has become effective and unless the holders of Cornerstone
Registrable Securities, PPEI Registrable Securities, Kuck Registrable
Securities, Series C Registrable Securities, or Wisconsin Registrable
Securities, as the case may be, are able to register and sell at least 80% of
the Registrable Securities that holders of Cornerstone Registrable Securities,
PPEI Registrable Securities, Kuck Registrable Securities, Series C Registrable
Securities, or Wisconsin Registrable Securities, as the case may be, have
requested to be included in such registration.
(c) Short-Form Registrations. In addition to the Long-Form
Registrations provided pursuant to Section 2(b), holders of Registrable
Securities will be entitled to request an unlimited number of Short-Form
Registrations with respect to Registrable Securities held by such holders in
which the Company will pay all Registration Expenses. Demand Registrations
(other than 415 Registrations) will be Short-Form Registrations whenever the
Company is permitted to use any applicable short form. After the Company has
become subject to the reporting requirements of the Exchange Act, the Company
will use its best efforts to make Short-Form Registrations available for the
sale of Registrable Securities, and after the Company has become subject to such
reporting requirements, the Company will use its best efforts to make Short-Form
Registrations available for the sale of Registrable Securities.
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(d) Priority on Demand Registrations. The Company will not
include in any Long-Form Registration or Short-Form Registration any securities
which are not Registrable Securities without the prior written consent of the
holders of at least a majority of the Cornerstone Registrable Securities, PPEI
Registrable Securities, Kuck Registrable Securities, Series C Registrable
Securities, or Wisconsin Registrable Securities, as the case may be, demanding
such registration. If a Long-Form Registration or a Short-Form Registration is
an underwritten offering and the managing underwriters advise the Company in
writing that in their opinion the number of Registrable Securities and, if
permitted hereunder, other securities requested to be included in such offering,
exceeds the number of Registrable Securities and other securities, if any, which
can be sold therein without adversely affecting the marketability of the
offering (including price), the Company will include in such registration (i)
first, the number of Registrable Securities requested to be included in such
registration pro rata, if necessary, among the holders of Registrable Securities
based on the number of shares of Registrable Securities held by each such holder
and (ii) second, any other securities of the Company requested to be included in
such registration pro rata, if necessary, on the basis of the number of shares
of such other securities owned by each such holder. Any Persons other than
holders of Registrable Securities who participate in Demand Registrations which
are not at the Company's expense, must pay their share of the Registration
Expenses as provided in Section 6 hereof.
(e) Restrictions on Demand Registrations. The Company will not
be obligated to effect any Demand Registration within three months after the
effective date of a previous Demand Registration for Registrable Securities.
(f) Selection of Underwriters. In the case of a Demand
Registration for an underwritten offering, the holders of a majority of the
Registrable Securities to be included in such Demand Registration will have the
right to select the investment banker(s) and manager(s) to administer the
offering, which investment banker(s) and manager(s) will be nationally
recognized.
(g) 415 Registrations.
(i) The holders of a majority of the Cornerstone
Registrable Securities and the holders of a majority of the PPEI Registrable
Securities will each be entitled to request one (1) 415 Registration with
respect to Cornerstone Registrable Securities and PPEI Registrable Securities,
respectively, in which the Company will pay all Registration Expenses; provided,
that Kuck and the holders of the Series C Registrable Securities have the right
to participate in any such registration pro rata with Cornerstone and PPEI on
the basis of the number of shares of Registrable Securities held by such
holders. Subject to the availability of required financial information, within
45 days after the Company receives written notice of a request for a 415
Registration, the Company shall file with the SEC a registration statement under
the Securities Act for the 415 Registration. The Company shall use its best
efforts to cause the 415 Registration to be declared effective under the
Securities Act as soon as practical after filing, and once effective, the
Company shall (subject to the provisions of clause (ii) below) cause such 415
Registration to remain effective for such time period as is specified in such
request, but for no time period longer than the period ending on the earlier of
(1) the third anniversary of the date of filing of such 415 Registration, (2)
the date on which all Registrable Securities so registered have been sold
pursuant to the 415 Registration or
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(3) the date as of which there are no longer any Registrable Securities in
existence. Any sale pursuant to the registration contemplated by this subsection
3(g)(i) is referred to herein as a "Takedown."
(ii) If the holders of a majority of the Cornerstone
Registrable Securities, the holders of a majority of the PPEI Registrable
Securities, the holders of a majority of the Kuck Registrable Securities, or the
holders of a majority of the Series C Registrable Securities notify the Company
in writing that they intend to effect the sale of all or a substantial portion
of the Cornerstone Registrable Securities, the Kuck Registrable Securities, the
PPEI Registrable Securities, or the Series C Registrable Securities held by such
holders, pursuant to a Takedown, the Company and each holder of Registrable
Securities shall not effect any public sale or distribution of its equity
securities, or any securities convertible into or exchangeable or exercisable
for its equity securities, during the 90-day period beginning on the date such
notice of a Takedown is received.
(iii) If in connection with any Takedown the managing
underwriters (selected in accordance with clause (iv) below) advise the Company
that, in their opinion, the inclusion of any securities other than Cornerstone
Registrable Securities, Kuck Registrable Securities, PPEI Registrable
Securities, or Series C Registrable Securities would adversely affect the
marketability of the offering, then no such other securities shall be permitted
to be included. Additionally, if in connection with such an offering, the number
of Cornerstone Registrable Securities, Kuck Registrable Securities, PPEI
Registrable Securities, Series C Registrable Securities and other securities (if
any) requested to be included in such Takedown exceeds the number of Cornerstone
Registrable Securities, PPEI Registrable Securities, Kuck Registrable
Securities, Series C Registrable Securities and other securities which can be
sold in such offering without adversely affecting the marketability of the
offering, the Company shall include in such Takedown (i) first, the Cornerstone
Registrable Securities, Kuck Registrable Securities, PPEI Registrable Securities
and Series C Registrable Securities requested to be included in such Takedown,
pro rata among the holders of such Cornerstone Registrable Securities, Kuck
Registrable Securities, PPEI Registrable Securities and Series C Registrable
Securities on the basis of the number of Cornerstone Registrable Securities,
Kuck Registrable Securities, PPEI Registrable Securities and Series C
Registrable Securities owned by each such holder, (ii) second, the remaining
Registrable Securities requested to be included in such Takedown, pro rata among
the holders of such Registrable Securities on the basis of the number of
Registrable Securities owned by each such holder, and (iii) third, other
securities requested to be included in such Takedown to the extent permitted
hereunder.
(iv) The holders of a majority of the Cornerstone
Registrable Securities and the holders of a majority of the PPEI Registrable
Securities shall have the right to retain and select an investment banker and
manager to administer the 415 Registration with respect to Registrable
Securities and any Takedown pursuant thereto.
(v) In addition to the provisions in Section 6 below, all
expenses incurred in connection with the management of the 415 Registration
(whether incurred by the Company, the holders of the Cornerstone Registrable
Securities, or the holders of the PPEI Registrable Securities)
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shall be borne by the Company (including, without limitation, all fees and
expenses of the investment banker and manager) (excluding discounts and
commissions).
(h) Other Registration Rights. Except as provided in this
Agreement, the Company shall not grant to any Persons the right to request the
Company to register any of its equity securities or any securities convertible
or exchangeable into or exercisable for such securities, without the prior
written consent of the holders of a majority of the Cornerstone Registrable
Securities and the holders of a majority of the PPEI Registrable Securities.
3. Piggyback Registrations.
(a) Right to Piggyback. Whenever the Company proposes to
register any shares of Common Stock under the Securities Act (in the case of all
holders of Registrable Securities except holders of Sigma Registrable
Securities, other than pursuant to a Demand Registration, and in the case of all
holders of Registrable Securities, other than pursuant to a registration
statement on Form S-8 or S-4 or any similar form or in connection with a
registration the primary purpose of which is to register debt securities (i.e.,
in connection with a so-called "equity kicker")), and a registration form to be
used may be used for the registration of Registrable Securities (a "Piggyback
Registration"), the Company will give prompt written notice to all holders of
Registrable Securities of its intention to effect such a registration. The
Company shall include in any such registration by it all Registrable Securities
with respect to which it has received written requests for inclusion therein
within 20 days after the receipt of the Company's notice. Notwithstanding the
foregoing, in connection only with the initial registered public offering of the
Company's securities which offering is a primary offering, no Registrable
Securities shall be included in such registration without the prior written
consent of the Company; provided, that if the Company consents to include in
such registration any Registrable Securities held by any holder of Registrable
Securities, the Company shall consent to include in such registration the
Registrable Securities of all holders of Registrable Securities in accordance
with the provisions of Section 3(c) below.
(b) Piggyback Expenses. The Registration Expenses of the
holders of Registrable Securities will be paid by the Company.
(c) Priority on Primary Registrations. Subject to paragraph
3(a), if a Piggyback Registration is an underwritten primary registration on
behalf of the Company, the Company will include in such registration all
Registrable Securities requested to be included in such registration; provided,
that if the managing underwriters advise the Company in writing that in their
opinion the number of securities requested to be included in such registration
exceeds the number which can be sold in such offering without adversely
affecting the marketability of the offering, the Company will include in such
registration (i) first, the securities that the Company proposes to sell, (ii)
second, the number of Registrable Securities requested to be included in such
registration, pro rata among the holders of such Registrable Securities on the
basis of the number of shares of Registrable Securities owned by each such
holder, and (iii) third, other securities, if any, requested to be included in
such registration not covered by clause (i) above.
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(d) Priority on Secondary Registrations. If a Piggyback
Registration is an underwritten secondary registration on behalf of holders of
the Company's securities (which registration was consented to pursuant to
Section 2(h) above), and the managing underwriters advise the Company in writing
that in their opinion the number of securities requested to be included in such
registration exceeds the number which can be sold in such offering without
adversely affecting the marketability of the offering, the Company will include
in such registration (i) first, the securities requested to be included therein
by the holders requesting such registration, (ii) second, the number of
Registrable Securities requested to be included in such registration, pro rata
among the holders of such Registrable Securities on the basis of the number of
shares of Registrable Securities owned by each such holder, and (iii) third,
other securities, if any, requested to be included in such registration not
covered by clause (i) above.
(e) Selection of Underwriters. If any Piggyback Registration
is an underwritten offering, the investment banker(s) and manager(s) for the
offering shall be acceptable to the holders of a majority of the Registrable
Securities for which registration has been proposed.
(f) Other Registrations. If (i) the Company has previously
filed a registration statement with respect to Registrable Securities pursuant
to this Section 3, and if such previous registration has not been withdrawn or
abandoned, the Company will not file or cause to be effected any other
registration of any of its equity securities or securities convertible or
exchangeable into or exercisable for its equity securities under the Securities
Act (except on Forms S-4 or S-8 or any successor forms), whether on its own
behalf or at the request of any holder or holders of such securities, until a
period of at least six months has elapsed from the effective date of such
previous registration.
4. Holdback Agreements.
(a) Each holder of Registrable Securities hereby agrees not to
effect any public sale or distribution (including sales pursuant to Rule 144) of
equity securities of the Company or any securities convertible into or
exchangeable or exercisable for such securities, during the seven days prior to
and the 180-day period beginning on the effective date of any Demand
Registration (other than a 415 Registration) or Piggyback Registration for a
public offering to be underwritten on a firm commitment basis in which
Registrable Securities are included (except as part of such underwritten
registration), unless the underwriters managing the registered public offering
otherwise agree.
(b) The Company agrees (i) not to effect any public sale or
distribution of its respective equity securities, or any securities convertible
into or exchangeable or exercisable for such securities, during the seven days
prior to and during the 180-day period beginning on the effective date of any
underwritten Demand Registration (other than a 415 Registration) or Piggyback
Registration for Registrable Securities (except as part of such underwritten
registration or pursuant to registrations on Forms S-4 or S-8 or any successor
forms), unless the underwriters managing the registered public offering
otherwise agree, and (ii) to cause each holder of Registrable Securities and
each other holder of at least 5% (on a fully diluted basis) of equity securities
of the Company, or any securities convertible into or exchangeable or
exercisable for such equity securities, purchased from the Company at any time
after the date hereof (other than in a registered public offering) to agree
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not to effect any public sale or distribution (including sales pursuant to Rule
144) of any such securities during such period (except as part of such
underwritten registration, if otherwise permitted), unless the underwriters
managing the registered public offering otherwise agree.
5. Registration Procedures. 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 possible:
(a) prepare and file with the SEC 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 the counsel selected by the holders of a majority of
the Registrable Securities covered by such registration statement copies of all
such documents proposed to be filed);
(b) prepare and file with the SEC 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
a period of not less than six 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 period in accordance with the intended
methods of disposition by the sellers thereof set forth in such registration
statement;
(c) 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 such other documents as such seller may reasonably
request in order to facilitate the disposition of the Registrable Securities
owned by such seller;
(d) 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 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
to (i) qualify generally to do business in any jurisdiction where it would not
otherwise be required to qualify but for this subsection, (ii) subject itself to
taxation in any such jurisdiction or (iii) consent to general service of process
(i.e., service of process which is not limited solely to securities law
violations) in any such jurisdiction);
(e) 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 a supplement or amendment to such prospectus so that, as
thereafter delivered to the purchasers of such
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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;
(f) cause all such Registrable Securities to be listed on each
securities exchange on which similar securities issued by the Company, are then
listed and, if not so listed, to be listed on the Nasdaq National Market
("Nasdaq Market") and, if listed on the Nasdaq Market, use its best efforts to
secure designation of all such Registrable Securities covered by such
registration statement as a Nasdaq "National Market System security" within the
meaning of Rule 11Aa2-1 of the SEC or, failing that, to secure Nasdaq Market
authorization for such Registrable Securities and, without limiting the
generality of the foregoing, to arrange for at least two market makers to
register as such with respect to such Registrable Securities with the National
Association of Securities Dealers;
(g) provide a transfer agent and registrar for all such
Registrable Securities not later than the effective date of such registration
statement;
(h) enter into 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);
(i) make available for inspection by any seller of Registrable
Securities, 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, all financial and other records, pertinent
corporate documents and properties of the Company, and cause the officers,
directors, employees and independent accountants of the Company to supply all
information reasonably requested by any such seller, underwriter, attorney,
accountant or agent in connection with such registration statement;
(j) otherwise use its best efforts to comply with all
applicable rules and regulations of the SEC, and make available to its security
holders, as soon as reasonably practicable, an earning statement covering the
period of at least twelve months beginning with the first day of the first full
calendar quarter of the Company, as applicable, after the effective date of the
registration statement, which earning statement shall satisfy the provisions of
Section 11(a) of the Securities Act and Rule 158 promulgated thereunder;
(k) 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 to participate in the preparation of such
registration or comparable statement and to require 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;
(l) 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 securities included in such registration statement for sale in
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any jurisdiction, the Company will use its reasonable best efforts promptly to
obtain the withdrawal of such order;
(m) use its best efforts to cause such Registrable Securities
covered by such registration statement to be registered with or approved by such
other governmental agencies or authorities as may be necessary to enable the
sellers thereof to consummate the disposition of such Registrable Securities;
and
(n) obtain a "cold comfort" letter from the independent public
accountants of the Company in customary form and covering such matters of the
type customarily covered by "cold comfort" letters as the holders of a majority
of the Registrable Securities being sold reasonably request.
If any such registration or comparable statement refers to any holder by name or
otherwise as the holder of any securities of the Company, and if, in its sole
and exclusive judgment, such holder is or might be deemed to be a controlling
Person of the Company, such holder shall have the right to require (i) the
insertion therein of language, in form and substance satisfactory to such holder
and presented to the Company, in writing, to the effect that the holding by such
holder of such securities is not to be construed as a recommendation by such
holder of the investment quality of the Company's securities covered thereby and
that such holding does not imply that such holder will assist in meeting any
future financial requirements of the Company, or (ii) in the event that such
reference to such holder by name or otherwise is not required by the Securities
Act or any similar Federal statute then in force, the deletion of the reference
to such holder; provided, that with respect to this clause (ii) such holder
shall furnish to the Company, an opinion of counsel to such effect, which
opinion and counsel shall be reasonably satisfactory to the Company.
6. Registration Expenses.
(a) All expenses incident to the Company's performance of or
compliance with this Agreement, including without limitation all registration
and filing fees, fees and expenses of compliance with securities or blue sky
laws, printing expenses, messenger and delivery expenses, and fees and
disbursements of counsel for the Company, and all independent certified public
accountants, underwriters (excluding discounts and commissions) and other
Persons retained by the Company, will be borne by the Company, with respect to
any registration, proposed or otherwise, of its securities.
(b) In connection with each Demand Registration, each
Piggyback Registration and each 415 Registration, the Company will reimburse the
holders of Registrable Securities covered by such registration for the
reasonable fees and disbursements of one counsel chosen by the holders of a
majority of the Registrable Securities initially requesting such registration.
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7. Indemnification.
(a) The Company agrees to indemnify, to the extent permitted
by law, each holder of Registrable Securities, its respective partners, members,
officers and directors and each Person who controls such holder (within the
meaning of the Securities Act) against all losses, claims, damages, liabilities
and expenses arising out of or based upon any untrue or alleged untrue statement
of material fact contained in any registration statement, prospectus or
preliminary prospectus or any amendment thereof or supplement thereto or any
omission or alleged omission of a material fact required to be stated therein or
necessary to make the statements therein not misleading, and shall reimburse
such holder, director, officer or controlling Person for any legal or other
expenses reasonably incurred by such holder, director, officer or controlling
Person in connection with the investigation or defense of such loss, claim,
damage, liability or expense, except insofar as the same are caused by or
contained in any information furnished in writing to the Company by such holder
expressly for use therein or by such holder's failure to deliver a copy of the
registration statement or prospectus or any amendments or supplements thereto
after the Company has furnished such holder with a sufficient number of copies
of the same. In connection with an underwritten offering, the Company will
indemnify such underwriters, their officers and directors and each Person who
controls such underwriters (within the meaning of the Securities Act) to the
same extent as provided above with respect to the indemnification of the holders
of Registrable Securities.
(b) In connection with any registration statement in which a
holder of Registrable Securities is participating, each such holder will furnish
to the Company in writing such information and affidavits as the Company
reasonably requests for use in connection with any such registration statement
or prospectus and, to the extent permitted by law, will indemnify the Company in
connection with any registration of Registrable Securities, and its members,
directors and officers and each Person who controls the Company (within the
meaning of the Securities Act), as applicable, against any losses, claims,
damages, liabilities and expenses resulting from any untrue or alleged untrue
statement of material fact contained in such registration statement, prospectus
or preliminary prospectus or any amendment thereof or supplement thereto or any
omission or alleged omission of a material fact required to be stated therein or
necessary to make the statements therein not misleading, but only to the extent
that such untrue statement or omission is contained in any information or
affidavit so furnished in writing by such holder; provided, that the obligation
to indemnify will be individual to each holder and will be limited to the net
amount of proceeds received by such holder from the sale of Registrable
Securities pursuant to such registration statement.
(c) Any Person entitled to indemnification hereunder will (i)
give prompt written notice to the indemnifying party of any claim with respect
to which it seeks indemnification and (ii) unless in such indemnified party's
reasonable judgment a conflict of interest between such indemnified and
indemnifying parties may exist with respect to such claim, permit such
indemnifying party to assume the defense of such claim with counsel reasonably
satisfactory to the indemnified party. If such defense is assumed, the
indemnifying party will not be subject to any liability for any settlement made
by the indemnified party without its consent (but such consent will not be
unreasonably withheld). An indemnifying party who is not entitled to, or elects
not to, assume the defense of a claim will not be obligated to pay the fees and
expenses of more than one
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counsel for all parties indemnified by such indemnifying party with respect to
such claim, unless in the reasonable judgment of any indemnified party a
conflict of interest may exist between such indemnified party and any other of
such indemnified parties with respect to such claim.
(d) The indemnification provided for under this Agreement will
remain in full force and effect regardless of any investigation made by or on
behalf of the indemnified party or any partner, member, officer, director or
controlling Person of such indemnified party and will survive the transfer of
securities. The Company, to the extent so liable, also agrees to make such
provisions, as are reasonably requested by any indemnified party, for
contribution to such party in the event that the Company's indemnification is
unavailable for any reason.
8. Participation in Underwritten Registrations. No Person may
participate in any registration hereunder which is underwritten unless such
Person (a) agrees to sell such Person's securities on the basis provided in any
underwriting arrangements approved by the Person or Persons entitled hereunder
to approve such arrangements and (b) completes and executes all customary
questionnaires, powers of attorney, indemnities, underwriting agreements and
other documents reasonably required under the terms of such underwriting
arrangements; provided, that no holder of Registrable Securities included in any
underwritten registration shall be required to make any representations or
warranties to the Company or the underwriters other than representations and
warranties regarding such holder and such holder's intended method of
distribution.
9. Rule 144 Reporting. With a view to making available to the
holders of Registrable Securities the benefits of certain rules and regulations
of the SEC which may permit the sale of the Registrable Securities to the public
without registration, the Company agrees to use its best efforts to:
(a) make and keep current public information available, within
the meaning of Rule 144 or any similar or analogous rule promulgated under the
Securities Act, at all times after it has become subject to the reporting
requirements of the Exchange Act;
(b) file with the SEC, in a timely manner, all reports and
other documents required under the Securities Act and Exchange Act (after it has
become subject to such reporting requirements); and
(c) so long as any party hereto owns any Registrable
Securities, furnish to such Person forthwith upon request a written statement as
to its compliance with the reporting requirements of said Rule 144 (at any time
commencing 90 days after the effective date of the first registration filed by
the Company for an offering of its securities to the general public), the
Securities Act and the Exchange Act (at any time after it has become subject to
such reporting requirements); a copy of its most recent annual or quarterly
report; and such other reports and documents as such Person may reasonably
request in availing itself of any rule or regulation of the SEC allowing it to
sell any such securities without registration.
10. Notices. All notices, demands or other communications to
be given or delivered under or by reason of the provisions of this Agreement
will be in writing and will be
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deemed to have been given when delivered personally, mailed by certified or
registered mail, return receipt requested and postage prepaid, or sent via a
nationally recognized overnight courier, or sent via facsimile to the recipient.
Such notices, demands and other communications will be sent to the address
indicated below:
To the Company:
Centurion International, Inc.
3425 North 44th Street
Lincoln, Nebraska 68504
Attention: Gary L. Kuck, President
Facsimile No.: (402) 467-4528
With copies to:
Cornerstone IV, L.L.C.
717 Fifth Avenue
Suite 1100
New York, New York 10022
Attention: Mark Rossi
Robert Getz
Facsimile No.: (212) 826-6798
and:
Kirkland & Ellis
153 East 53rd Street
New York, New York 10022-4675
Attention: Frederick Tanne, Esq.
Facsimile No.: (212) 446-4900
and:
Altheimer & Gray
10 South Wacker Drive, Suite 4000
Chicago, Illinois 60606
Attention: Phillip Gordon
Facsimile No.: (312) 715-4800
-14-
15
To Cornerstone:
Cornerstone IV, L.L.C.
717 Fifth Avenue
Suite 1100
New York, New York 10022
Attention: Mark Rossi
Robert Getz
Facsimile No.: (212) 826-6798
With a copy to:
Kirkland & Ellis
153 East 53rd Street
New York, New York 10022-4675
Attention: Frederick Tanne, Esq.
Facsimile No.: (212) 446-4900
To PPEI:
c/o Cornerstone IV, L.L.C.
717 Fifth Avenue
Suite 1100
New York, New York 10022
Attention: Mark Rossi
Robert Getz
Facsimile No.: (212) 826-6798
With a copy to:
Kirkland & Ellis
153 East 53rd Street
New York, New York 10022-4675
Attention: Frederick Tanne, Esq.
Facsimile No.: (212) 446-4900
To Kuck Investment Partners, L.P.:
c/o Centurion International, Inc.
3425 North 44th Street
Lincoln, Nebraska 68504
Attention: Gary L. Kuck, President
Facsimile No.: (402) 467-4528
-15-
16
With a copy to:
Altheimer & Gray
10 South Wacker Drive
Suite 4000
Chicago, Illinois 60606-7482
Attention: Phillip Gordon, Esq.
Facsimile No.: (312) 715-4800
To the Sigma Stockholders:
c/o Sigma Wireless Technologies Ltd.
McKee Avenue
Finglas, Dublin 11
Ireland
Attention: Peter Crowley
To Wisconsin:
State of Wisconsin Investment Board
121 East Wilson Street
Madison, Wisconsin 53702
(if by U.S. mail: P.O. Box 7842, Madison,
Wisconsin 53707-7842)
Attn: Jon R. Vanderploeg, Portfolio Manager
Fax: (608) 266-2436
With a copy (which copy shall not constitute notice)to:
Michael Best & Friedrich LLP
One South Pinckney Street, Suite 700
Madison, Wisconsin 53703
(if by U.S. Mail: P.O. Box 1806, Madison,
Wisconsin 53701-1806)
Attn: Timothy S. Crisp
Fax: (608) 283-2275
With a copy to:
To Randolph:
Kirkland & Ellis
153 East 53rd Street
New York, NY 10022
Attn: Frederick Tanne
Facsimile No.: (212) 446-4900
-16-
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To K&E:
Kirkland & Ellis
153 East 53rd Street
New York, NY 10022
Attn: Frederick Tanne
Facsimile No.: (212) 446-4900
To P. Jackson Bell:
1145 San Mateo Drive
Menlo Park, CA 94025
Facsimile No.: (650) 322-0388
To Behlman:
c/o Robert G. Behlman
Celestica Inc.
2222 Qume Drive
San Jose, CA 95131
Facsimile No.: (408) 922-2727
or such other address or to the attention of such other person as the recipient
party shall have specified by prior written notice to the sending party.
11. Miscellaneous.
(a) No Inconsistent Agreements. The Company will not enter
into any agreement which is inconsistent with or violates the rights granted to
the holders of this Agreement.
(b) Remedies. Any Person having rights under any provision of
this Agreement will be entitled to enforce such rights specifically to recover
damages caused by reason of any breach of any provision of this Agreement and to
exercise all other rights granted by law. The parties hereto agree and
acknowledge that money damages may not be an adequate remedy for any breach of
the provisions of this Agreement and that any party may in its sole discretion
apply to any court of law or equity of competent jurisdiction (without posting
any bond or other security) for specific performance and for other injunctive
relief in order to enforce or prevent violation of the provisions of this
Agreement.
(c) Amendments and Waivers. Except as otherwise provided
herein, the provisions of this Agreement may be amended or waived only upon the
prior written consent of the Company and holders of a majority of the
Cornerstone Registrable Securities and the holders of a majority of the PPEI
Registrable Securities.
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(d) Successors and Assigns. All covenants and agreements in
this Agreement by or on behalf of any of the parties hereto will bind and inure
to the benefit of the respective successors and assigns of the parties hereto
whether so expressed or not. In addition, whether or not any express assignment
has been made, the provisions of this Agreement which are for the benefit of
purchasers or holders of Registrable Securities are also for the benefit of, and
enforceable by, any subsequent holder of Registrable Securities.
(e) Severability. Whenever possible, each provision of this
Agreement will be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement is held to be prohibited
by or invalid under applicable law, such provision will be ineffective only to
the extent of such prohibition or invalidity, without invalidating the remainder
of this Agreement.
(f) Counterparts. This Agreement may be executed
simultaneously in two or more counterparts, any one of which need not contain
the signatures of more than one party, but all such counterparts taken together
will constitute one and the same Agreement.
(g) Descriptive Headings. The descriptive headings of this
Agreement are inserted for convenience only and do not constitute a part of this
Agreement.
(H) GOVERNING LAW. ALL QUESTIONS CONCERNING THE CONSTRUCTION,
VALIDITY AND INTERPRETATION OF THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE DOMESTIC LAWS OF THE STATE OF NEW YORK, WITHOUT GIVING
EFFECT TO ANY CHOICE OF LAW OR CONFLICT OF LAW PROVISION OR RULE (WHETHER OF THE
STATE OF NEW YORK OR ANY OTHER JURISDICTION) THAT WOULD CAUSE THE APPLICATION OF
THE LAWS OF ANY JURISDICTION OTHER THAN THE STATE OF NEW YORK.
* * * * *
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IN WITNESS WHEREOF, the parties hereto have executed this
Registration Rights Agreement as of the date first above written.
CENTURION INTERNATIONAL, INC.
By: /s/ Gary L. Kuck
------------------------------
Name: Gary L. Kuck
Title: President/CEO
CORNERSTONE EQUITY INVESTORS IV, L.P.
By: Cornerstone IV, L.L.C.
Its: General Partner
By: /s/ Robert Getz
------------------------------
Name: Robert Getz
Title: Managing Director
PRUDENTIAL PRIVATE EQUITY INVESTORS III, L.P.
By: Prudential Equity Investors, Inc.
Its: General Partner
By: Cornerstone Equity Investors, L.L.C.
Its: Investment Advisor
By: /s/ Robert Getz
------------------------------
Its: Managing Director
KUCK INVESTMENT PARTNERS, L.P.
By: /s/ Gary L. Kuck
------------------------------
Name: Gary L. Kuck
Title: General Partner
20
STATE OF WISCONSIN INVESTMENT BOARD
By: /s/ Jon Vanderpleeg
----------------------------------------
Name: Jon Vanderpleeg
Title: Portfolio Manager
/s/ James A. Boyle
----------------------------------------------
JAMES A. BOYLE
/s/ Michael McGinley
----------------------------------------------
MICHAEL MCGINLEY
/s/ Peter Crowley
--------------------------------------------
PETER CROWLEY
RANDOLPH STREET PARTNERS III
By: /s/ Frederick Tanne
---------------------------------------
Name: Frederick Tanne
Title:
21
BEHLMAN FAMILY REVOCABLE TRUST
By: /s/ Robert Behlman
------------------------------
Name: Robert Behlman
Title: Trustee