EXHIBIT 4.4
AMENDED AND RESTATED
REGISTRATION RIGHTS AGREEMENT
DATED AS OF _________, 2006
among
CPI INTERNATIONAL, INC. (FORMERLY CPI ACQUISITION CORP.)
CYPRESS MERCHANT BANKING PARTNERS II L.P.
CYPRESS MERCHANT B II C.V.
55TH STREET PARTNERS II L.P.
and
CYPRESS SIDE-BY-SIDE LLC
TABLE OF CONTENTS
PAGE
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ARTICLE I
DEFINITIONS....................................................
3
ARTICLE II REGISTRATION
RIGHTS...........................................
6
Section 2.1.
Demand Registration.....................................
6
Section 2.2.
Piggy-Back Registration.................................
7
Section 2.3.
Reduction of Offering...................................
8
ARTICLE III REGISTRATION
PROCEDURES......................................
8
Section 3.1.
Filings; Information....................................
8
Section 3.2.
Registration Expenses...................................
11
ARTICLE IV INDEMNIFICATION AND
CONTRIBUTION..............................
12
Section 4.1.
Indemnification by the Company..........................
12
Section 4.2.
Indemnification by Holders of Registrable Securities....
13
Section 4.3.
Conduct of Indemnification Proceedings..................
13
Section 4.4.
Contribution............................................
14
ARTICLE V
MISCELLANEOUS..................................................
15
Section 5.1.
Participation in Underwritten Registrations.............
15
Section 5.2.
Rule 144................................................
15
Section 5.3.
Holdback Agreements.....................................
15
Section 5.4.
Other Registration Rights...............................
15
Section 5.5.
No Inconsistent Agreements..............................
16
Section 5.6.
Successors and Assigns..................................
16
Section 5.7.
No Waivers, Amendments..................................
16
Section 5.8.
Notices.................................................
16
Section 5.9.
Term of Agreement.......................................
17
SECTION 5.10. GOVERNING LAW; SUBMISSION TO
JURISDICTION...............
17
Section 5.11. Section
Headings........................................
18
Section 5.12. Entire
Agreement........................................
18
Section 5.13.
Severability............................................
18
Section 5.14.
Counterparts............................................
18
Section 5.15. Parties in
Interest.....................................
18
Section 5.16. Enforcement; Further
Assurances.........................
18
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AMENDED AND RESTATED
REGISTRATION RIGHTS AGREEMENT
AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT dated as of
_________, 2006 (this "Agreement") among CPI International, Inc.
(formerly known
as CPI Acquisition Corp.), a Delaware corporation (the "Company"),
Cypress
Merchant Banking Partners II L.P., a Delaware limited partnership
("Cypress
Onshore"), Cypress Merchant B II C.V., a Netherlands limited
partnership
("Cypress Offshore"), 55th Street Partners II L.P., a Delaware
limited
partnership ("Cypress 55th Street"), and Cypress Side-by-Side LLC,
a Delaware
limited liability company ("Cypress Side-by-Side," and together
with Cypress
Onshore, Cypress Offshore, Cypress 55th Street, "Cypress").
Capitalized terms
used but not otherwise defined herein have the meanings given to
them in the
Merger Agreement (as hereinafter defined).
WITNESSETH:
WHEREAS, pursuant to an Agreement and Plan of Merger, dated as of
November 17, 2003 (the "Merger Agreement"), among Communications
& Power
Industries Holding Corporation ("Holding"), the Company, CPI Merger
Sub Corp., a
Delaware corporation and wholly-owned Subsidiary (as hereinafter
defined) of the
Company prior to the Merger (as hereinafter defined) ("Merger
Sub"), and Green
Equity Investors II L.P., as Securityholders' Representative, the
Company
acquired Holding pursuant to a merger (the "Merger") in which
Merger Sub merged
with and into Holding with Holding as the surviving corporation
(the "Merger");
WHEREAS, in connection with the closing of the Merger, the Company
and
Cypress entered into a Registration Rights Agreement, dated as of
January 23,
2004 (the "Original Agreement"), pursuant to which the Company
granted to
Cypress certain registration rights;
WHEREAS, Cypress and the Company wish to amend and restate the
Original Agreement on the terms and conditions set forth herein.
NOW THEREFORE, in consideration of the mutual covenants and
agreements
contained herein, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
As used in this Agreement, the following terms have the following
meanings:
"Affiliate", as applied to any Person, shall mean any other Person
directly or indirectly controlling, controlled by, or under common
control with,
that Person. For the purposes of this definition "control"
(including, with
correlative meanings, the terms "controlling", "controlled by" and
"under common
control with"), as applied to any Person, means the possession,
directly or
indirectly, of the power to direct or cause the direction of the
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management and policies of that Person, whether through the
ownership of voting
securities (the ownership of more than 50% of the voting securities
of an entity
shall for purposes of this definition be deemed to be "control"),
by contract or
otherwise.
"Agreement" shall have the meaning set forth in the preamble of
this
Agreement.
"Business Day" shall mean any day that is not a Saturday or Sunday
or
a day on which banks located in New York City are authorized or
required to be
closed.
"Common Stock" shall mean the common stock, par value $0.01 per
share,
of the Company.
"Company" shall have the meaning set forth in the preamble of this
Agreement.
"Cypress" shall have the meaning set forth in the preamble of this
Agreement.
"Cypress Onshore" shall have the meaning set forth in the preamble
of
this Agreement.
"Cypress Offshore" shall have the meaning set forth in the preamble
of
this Agreement.
"Cypress Side-by-Side" shall have the meaning set forth in the
preamble of this Agreement.
"Cypress 55th Street" shall have the meaning set forth in the
preamble
of this Agreement.
"Exchange Act" shall mean the United States Securities and Exchange
Act of 1934, as amended, and the rules and regulations promulgated
thereunder.
"Holder" means (i) each of Cypress Onshore, Cypress Offshore,
Cypress
Side-by-Side and Cypress 55th Street, (ii) any Affiliate of any of
foregoing and
(iii) any other Person to whom any of the foregoing transfer
Registrable
Securities; provided that (a) such Person agrees in writing to be
bound by the
provisions of this Agreement, (b) to be entitled to exercise the
rights of a
Holder pursuant to Section 2.1, a Holder or Holders pursuant to
clause (iii)
must either individually or in the aggregate with all other Holders
with whom it
is acting together to demand registration own at least 30% of the
total number
of Registrable Securities and (c) no such Person pursuant to this
clause (iii)
shall be permitted to further transfer any rights hereunder.
"Holding" shall have the meaning set forth in the recitals of this
Agreement.
"Indemnified Party" has the meaning set forth in Section 4.3.
"Indemnifying Party" has the meaning set forth in Section 4.3.
"Inspectors" has the meaning set forth in Section 3.1(h).
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"Initial Public Offering" shall mean the initial Public Offering
(other than pursuant to a registration statement on Form S-8 (or
comparable form
for a private issuer or otherwise relating to equity securities
issuable under
any employee benefit plan)) of the Common Stock.
"Merger" shall have the meaning set forth in the recitals of this
Agreement.
"Merger Agreement" shall have the meaning set forth in the recitals
of
this Agreement.
"Merger Sub" shall have the meaning set forth in the recitals of
this
Agreement.
"Person" shall mean an individual, partnership, corporation,
business
trust, joint stock company, limited liability company,
unincorporated
association, joint venture or other entity of whatever nature.
"Piggy-Back Registration" has the meaning set forth in Section 2.2.
"Public Offering" shall mean any public offering of equity
securities
of the Company pursuant to an effective registration statement
under the
Securities Act.
"Records" has the meaning set forth in Section 3.1(h).
"Registrable Security" means any outstanding shares of Common Stock
held by a Holder; provided, however, such Common Stock shall cease
to be
Registrable Securities when (i) a registration statement covering
such Common
Stock has been declared effective by the Commission and such stock
has been
disposed of pursuant to such effective registration statement, (ii)
such stock
is sold pursuant to Rule 144 (or any similar provisions then in
force) under the
Securities Act or (iii) such Common Stock can be sold pursuant to
Rule 144 (or
any similar provisions then in force) without regard to the volume
and manner of
sale limitations set forth in Rule 144 (or any similar provisions
then in
force).
"Registration Expenses" has the meaning set forth in Section 3.2.
"Securities Act" shall mean the United States Securities Act of
1933,
as amended, and the rules and regulations promulgated thereunder.
"Selling Holder" means a Holder who is selling Registrable
Securities
pursuant to a registration statement under the Securities Act.
"Subsidiary" shall mean, with respect to any Person, any
corporation
or other entity of which a majority of the capital stock or other
ownership
interests having ordinary voting power to elect a majority of the
board of
directors or other persons performing similar function at the time
directly or
indirectly owned by such Person.
"Underwriter" means a securities dealer who purchases any
Registrable
Securities as principal in an underwritten offering and not as part
of such
dealer's market-making activities.
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ARTICLE II
REGISTRATION RIGHTS
Section 2.1. Demand Registration.
(a) Request for Registration. At any time on or after the date
180 days following the consummation of an Initial Public Offering
or such
earlier date as permitted by the managing underwriters for the
Initial Public
Offering, any Holder may request registration under the Securities
Act of all or
part of its or their Registrable Securities (a "Demand
Registration"); provided
that such request specifies the number of shares of Registrable
Securities
proposed to be sold and the intended method of disposition thereof.
Holders
shall be entitled to request no more than six (6) Demand
Registrations in the
aggregate.
(b) Selection of Underwriters. If the Holder making the Demand
Registration so elects, the offering of such Registrable Securities
pursuant to
such Demand Registration shall be in the form of an underwritten
offering. Such
Holder shall select, subject to the Company's reasonable approval,
one or more
nationally recognized firms of investment bankers to act as the
book-running
managing Underwriter or Underwriters in connection with such
offering and shall
select, subject to the Company's reasonable approval, any
additional investment
bankers and managers to be used in connection with the offering.
(c) Effective Registration Statement. A registration effected
pursuant to this Section 2.1 will not be deemed to have been
effected unless it
has become effective and has remained continuously effective for a
period of 90
days (or, with respect to a registration that is effected pursuant
to Form S-3
(or any successor or similar short-form registration), 9 months) or
such shorter
period which will terminate when all of the Registrable Securities
requested to
be registered thereunder have been sold.
(d) Registration Statement Form. The Company shall select the
registration statement form for any registration pursuant to this
Section 2.1;
provided, that if any registration requested pursuant to this
Section 2.1 is
proposed to be effected on Form S-3 (or any successor or similar
short-form
registration) and is in connection with an underwritten offering,
and if the
managing Underwriter shall advise the Company in writing that, in
its opinion,
it is of material importance to the success of such proposed
offering to include
in such registration statement information not required to be
included pursuant
to such form, then the Company will supplement such registration
statement as
reasonably requested by such managing Underwriter.
(e) Withdrawal. Each demanding Holder may, no less than five
Business Days before any registration statement becomes effective
pursuant to
this Section 2.1, withdraw some or all of its Registrable
Securities from
inclusion in such registration statement. If all of the Registrable
Securities
are withdrawn from inclusion in a registration statement, then the
Company may
withdraw such registration statement. If the Company withdraws a
registration
statement pursuant to the preceding sentence, then the requested
registration
shall be deemed to have been a Demand Registration for purposes of
the
limitations on the number of Demand Registrations contained in
Section 2.1
unless (i) at the time of the Holders' withdrawal of Registrable
Securities,
there has been a material adverse change in the operating results,
financial
condition, or business of the Company that was not publicly known
at the time
that the
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demand for registration was made, or (ii) the Company has postponed
its
obligations under this Agreement as described in paragraph (f).
(f) Restrictions on Demand Registrations. The Company will not be
obligated to effect any Demand Registration within three months
after the
effective date of a Public Offering by the Company pursuant to
Section 2.1 or a
Public Offering for which Piggy-Back Registration was fully
available. If at the
time of the request to register Registrable Securities pursuant to
Section
2.1(a), the Company is engaged, or has fixed plans (which have been
or are
reasonably expected to be approved by the Board of Directors within
30 days) to
engage within 90 days of the time of the request, in a registered
public
offering as to which the Holders may include such Registrable
Securities
pursuant to Section 2.2 hereof, or is engaged in any activity
which, in the good
faith determination of the Board of Directors, would be adversely
affected by
the requested registration to the material detriment of the
Company, then the
Company may at its option direct that such request be delayed for a
period not
in excess of 120 days from the effective date of such offering, or
in the case
of such other material activity, the date of such request for
registration, such
right to delay a request to be exercised by the Company, not more
than once
within any twelve-month period. A request for Demand Registration
may be
withdrawn if the Company delays the requested Demand Registration
pursuant to
this paragraph (f).
Section 2.2. Piggy-Back Registration. If at any time following the
consummation of an Initial Public Offering, the Company proposes to
file a
registration statement under the Securities Act with respect to an
offering by
the Company for its own account and/or for the account of any of
its security
holders (including in connection with a Demand Registration) of any
Common Stock
(other than (i) a registration statement on Form S-4 (or F-4) or
S-8 (or any
substitute form that may be adopted by the Commission) or (ii) a
registration
statement filed in connection with an exchange offer or an offering
of
securities solely to the Company's existing securityholders), then
the Company
shall give written notice of such proposed filing to the Holders as
soon as
practicable (but in no event less than 15 days before the
anticipated filing
date), and such notice shall identify the anticipated filing date
and offer such
Holders the opportunity to register such number of shares of
Registrable
Securities as each such Holder may request (which request shall
specify the
Registrable Securities intended to be disposed of by such Holder
and the
intended method of distribution thereof and shall be delivered to
the Company at
least two days prior to the anticipated filing date) (a "Piggy-Back
Registration"). The Company shall use its commercially reasonable
efforts to
cause the managing Underwriter or Underwriters of a proposed
underwritten
offering to permit the Registrable Securities requested to be
included in a
Piggy-Back Registration to be included on the same terms and
conditions to
permit the sale or other disposition of such Registrable Securities
in
accordance with the intended method of distribution thereof. Any
Holder shall
have the right to withdraw its request for inclusion of its
Registrable
Securities in any registration statement pursuant to this Section
2.2 by giving
written notice to the Company of its request to withdraw. The
Company may
withdraw a Piggy-Back Registration at any time prior to the time it
becomes
effective, provided that, in such event, the Company shall
reimburse Holders
requested to be included in such Piggy-Back Registration for all
Registration
Expenses (including reasonable counsel fees and expenses) incurred
prior to such
withdrawal.
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Section 2.3. Reduction of Offering. Notwithstanding anything
contained herein, if the managing Underwriter(s) of an offering
described in
Section 2.1 or 2.2 determine that the offering that the Holders,
the Company
and/or such other Persons intend to make is such that the success
of the
offering would be materially and adversely affected by inclusion of
the
Registrable Securities requested to be included, then the Company
shall include
in such registration: (a) in the case of a demand registration, (i)
first, an
amount of securities requested to be included in such registration
by any holder
exercising "demand registration rights" (such amount to be
allocated among such
holders in proportion to the number of securities held by such
holders) and (ii)
second, the Registrable Securities and any other securities of the
Company
requested to be included in such registration (such amount to be
allocated among
such holders in proportion to the number of shares of Common Stock
held by such
holders); and (b) in the case of a piggy-back registration, (i)
first, the
shares, if any, proposed to be registered by the Company for its
own account or
for the account of a holder exercising "demand registration
rights"; and (ii)
second, an amount of securities requested to be included in such
registration
(including pursuant to Section 2.2) by the holders exercising
"piggy-back
registration rights" (such amount to be allocated among such
holders in
proportion to the number of shares of Common Stock held by such
holders).
ARTICLE III
REGISTRATION PROCEDURES
Section 3.1. Filings; Information. Whenever the Holders have
requested that any Registrable Securities be registered pursuant to
this
agreement, the Company will use its reasonable efforts to effect
the
registration of such Registrable Securities in accordance with the
intended
method of disposition thereof as quickly as practicable, and in
connection with
any such request:
(a) The Company will as expeditiously as practicable prepare and
file with the Commission a registration statement on any form for
which the
Company then qualifies or which counsel for the Company shall deem
appropriate
and which form shall be available for the sale of the Registrable
Securities to
be registered thereunder in accordance with the intended method of
distribution
thereof (it being understood that the Company shall use Form S-3
(or any
replacement form) if such form is then available), and use its
commercially
reasonable efforts to cause such filed registration statement to
become
effective.
(b) The Company will 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 and to comply with the provisions of the
Securities Act with
respect to the disposition of all securities covered by such
registration
statement until such time as all of such securities have been
disposed of in
accordance with the intended methods of disposition by the Selling
Holder or
Selling Holders thereof set forth in such registration statement.
(c) The Company will, prior to filing a registration statement or
prospectus or any amendment or supplement thereto, furnish to each
Selling
Holder, counsel representing any Selling Holders, and each
Underwriter, if any,
of the Registrable Securities covered by such registration
statement copies of
such registration statement as proposed to be filed, together with
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exhibits thereto, which documents will be subject to review by the
foregoing
within 5 Business Days after delivery, and thereafter furnish to
such Selling
Holder, counsel and Underwriter, if any, such number of copies of
such
registration statement, each amendment and supplement thereto (in
each case
including all exhibits thereto and documents incorporated by
reference therein),
the prospectus included in such registration statement (including
each
preliminary prospectus) and such other documents as such Selling
Holder or
Underwriter may reasonably request in order to facilitate the
disposition of the
Registrable Securities owned by such Selling Holder.
(d) After the filing of the registration statement, the Company
will promptly notify each Selling Holder covered by such
registration statement
of any stop order issued or threatened by the Commission and take
all reasonable
actions required to prevent the entry of such stop order or to
remove it if
entered.
(e) The Company will use its commercially reasonable efforts to
(i) register or qualify the Registrable Securities under such other
securities
or blue sky laws of such jurisdictions in the United States and
such other
jurisdictions as any Selling Holder reasonably (in light of such
Selling
Holder's intended plan of distribution) requests and (ii) cause
such Registrable
Securities to be registered with or approved by such other
governmental agencies
or authorities in the United States as may be necessary by virtue
of the
business
