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EXHIBIT 4.1
PUT AGREEMENT
This PUT
AGREEMENT ("PUT AGREEMENT") is made as of April 19, 2005, by
and
among OmniVision Technologies, Inc., a
Delaware corporation ("OMNIVISION"), and
the undersigned holders (each a "HOLDER,"
and collectively, the "HOLDERS") of
the capital stock or options or warrants to
purchase the capital stock of CDM
Optics, Inc., a Delaware corporation
("CDM"). Any terms not otherwise defined in
this Put Agreement shall have the meanings
ascribed to such terms in the Merger
Agreement (as defined below).
RECITALS
(a) Effective as of the date hereof, Ski-Jump Acquisition Corp.,
a
Delaware corporation and a wholly owned
subsidiary of OmniVision is merging with
and into CDM (the "MERGER"), pursuant to
the Agreement and Plan of Merger, dated
as of March 25, 2005, by and among
OmniVision, CDM, Ski-Jump Acquisition Corp.
and the other parties thereto (the "MERGER
AGREEMENT").
(b) By virtue of the Merger, each share of CDM Common Stock
outstanding at the Effective Time, other
than Dissenting Shares, and each option
and warrant to purchase shares of CDM
Common Stock outstanding at the Effective
Time will be converted into the right to
receive cash and shares of OmniVision
Common Stock, all in accordance with the
terms and conditions of the Merger
Agreement.
(c) As an inducement to CDM and certain stockholders of CDM to
enter
into the Merger Agreement and consummate
the transactions contemplated therein,
OmniVision has agreed to grant each Holder,
on the terms and subject to the
conditions set forth herein, the right to
require OmniVision to purchase shares
of OmniVision Common Stock initially issued
to such Holder as Initial Stock
Consideration in the Merger (including any
shares issued for any stock
dividends, combinations, forward or reverse
stock splits, recapitalizations and
the like with respect to such shares
occurring after the Effective Time) and not
previously pledged, transferred, sold,
assigned or otherwise encumbered
(including any transfer by operation of
law, but excluding by will or by the
laws of intestacy) by such Holder (the "PUT
SHARES").
AGREEMENT
In
consideration of the foregoing and the respective covenants and
agreements set forth herein, and for other
good and valuable consideration, the
parties hereto agree as follows:
1. GRANT
OF PUT RIGHT. Subject to the terms and conditions hereof,
OmniVision grants to each Holder the
non-transferable (except as set forth
below) right (but not obligation)
commencing at the Put Effective Date (as
defined below), should it occur, and
terminating at the Put Termination Date (as
defined below) to require OmniVision to
repurchase (as soon as practicable
following OmniVision's receipt of a Put
Notice (as defined below) as is
permitted by applicable laws, rules and
regulations and OmniVision's internal
policies generally applicable to all of its
employees and directors, including,
without limitation, federal and state
securities laws, rules and regulations
promulgated thereunder and any rules and
regulations of NASDAQ or such other
market, exchange or quotation system as
OmniVision may then be subject
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(collectively "PUT APPLICABLE LAWS")) from
such Holder, at a price per share
equal to 140% of the Closing Stock Price
(as adjusted for any stock dividends,
combinations, forward or reverse stock
splits, recapitalizations and the like
with respect to such shares occurring after
the Effective Time) (the "PUT
PRICE"), any Put Shares then held by such
Holder (the "PUT RIGHT"). The Put
Right is personal to each Holder and is not
assignable or transferable, except
that the Put Right may be transferred in
connection with and to the extent of
any transfer of Put Shares by will or the
laws of intestacy to a transferee,
provided that any such transferee shall be
bound by the terms and conditions of
this Put Agreement with respect to the Put
Right as if such transferee were a
Holder hereunder. For the purposes of this
Put Agreement, the term "PUT
EFFECTIVE DATE" means the earlier of (i)
the second anniversary of the Closing
Date and (ii) the date on which the
Milestone Event occurs, provided that if at
any time following the Effective Time, the
last reported trade price at the
close of the regular trading day (excluding
after hours and extended trading
periods) of OmniVision Common Stock as
quoted on the NASDAQ Stock Market (or
other principal exchange or market on which
OmniVision Common Stock may be
listed from time-to-time after the Closing
Date) has equaled or exceeded 140% of
the Closing Stock Price (as adjusted for
any stock dividends, combinations,
forward or reverse stock splits,
recapitalizations and the like with respect to
such shares occurring after the Effective
Time) on at least ten (10) consecutive
trading days during which OmniVision has
maintained an effective Registration
Statement covering the Put Shares (provided
that the Registration Statement need
not be effective during such ten (10)
consecutive trading day period if the
disposition of the Put Shares is exempt
from registration under the Securities
Act during such period or if OmniVision is
entitled to withdraw the Registration
Statement in accordance with the terms of
Section 2.1 of the Registration Rights
Agreement), then such Put Right shall never
become effective and shall be null
and void (except with respect to the
Contingent Shares as expressly provided in
the third to last sentence of this Section
1). For the purposes of this Put
Agreement, the term "PUT TERMINATION DATE"
means the earlier to occur of (i)
5:00 P.M. Eastern Time on the tenth
consecutive trading day during which
OmniVision has maintained an effective
Registration Statement covering the Put
Shares (provided that the Registration
Statement need not be effective during
such ten (10) consecutive trading day
period if the disposition of the Put
Shares is exempt from registration under
the Securities Act during such period
or if OmniVision is entitled to withdraw
the Registration Statement in
accordance with the terms of Section 2.1 of
the Registration Rights Agreement),
on which the last reported trade price at
the close of the regular trading day
(excluding after hours and extended trading
periods) of OmniVision Common Stock
as quoted on the NASDAQ Stock Market (or
other principal exchange or market on
which OmniVision Common Stock may then be
listed) equals or exceeds 140% of the
Closing Stock Price (as adjusted for any
stock dividends, combinations, forward
or reverse stock splits, recapitalizations
and the like with respect to such
shares occurring after the Effective Time)
(the "TRADING EVENT DATE") and (ii)
5:00 P.M. Eastern Time on the second
anniversary of the Put Effective Date.
Notwithstanding the foregoing, if the
Trading Event Date occurs prior to the
date when OmniVision has transferred all
Contingent Shares to the Holders, the
Put Right solely with respect to Contingent
Shares actually issued to the
Holders shall be effective for twenty (20)
business days following the date on
which OmniVision has issued to the Holders
all Contingent Shares that are
required pursuant to the Merger Agreement
to be issued to the Holders
immediately following the expiration of the
eighteen-month period following the
Effective Time. The Put Right with respect
to Contingent Shares shall terminate
and be null and void with respect to
Contingent Shares immediately following the
twenty (20) business day period set forth
in the preceding sentence. No Holder
shall be entitled to exercise the Put
Right
2
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with respect to Contingent Shares during
the Escrow Period (unless such
Contingent Shares are issued pursuant to
Section 12.3(g) of the Merger Agreement
prior to the expiration of such Escrow
Period in which case the Holders of such
released Contingent Shares shall be
entitled to exercise the Put Right with
respect to such released Contingent Shares
during the Escrow Period subject to
the terms and conditions set forth in this
Put Agreement) or with respect to
Contingent Shares that are not issued or
are otherwise retained by OmniVision to
satisfy Damages incurred by OmniVision
Indemnified Persons.
2.
EXERCISE OF PUT. Subject to the terms and conditions hereof, a
Holder
may exercise the Put Right with respect to
all or part of his, its or her Put
Shares by delivering a written notice to
OmniVision in the form attached hereto
as Exhibit A, duly executed by such Holder
requesting that OmniVision purchase
the specified number of Put Shares at the
Put Price (the "PUT NOTICE"). The Put
Notice, except as otherwise specifically
set forth herein, shall be irrevocable
by the Holder once delivered to OmniVision
and to be effective must contain
representations and warranties of the
Holder that (i) the Put Shares with
respect to which the Put Right is being
exercised are owned by such Holder; (ii)
such Put Shares were originally issued to
such Holder as Initial Stock
Consideration in the Merger (including
