<PAGE> 1
As filed with the Securities and Exchange Commission on February 25, 2000
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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CELERITEK, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
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CALIFORNIA 77-0057484
(STATE OR OTHER JURISDICTION OF (IRS EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NUMBER)
3236 SCOTT BOULEVARD
SANTA CLARA, CALIFORNIA 95054
(408) 986-5060
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF
REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
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TAMER HUSSENI
PRESIDENT AND
CHIEF EXECUTIVE OFFICER
CELERITEK, INC.
3236 SCOTT BOULEVARD
SANTA CLARA, CALIFORNIA 95054
(408) 986-5060
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER,
INCLUDING AREA CODE, OF AGENT FOR SERVICE)
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Copies to:
JOHN V. ROOS, ESQ.
Jay D. Hansen, Esq.
WILSON SONSINI GOODRICH & ROSATI
PROFESSIONAL CORPORATION
650 PAGE MILL ROAD
PALO ALTO, CA 94304-1050
(650) 493-9300
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Approximate date of commencement of proposed sale to the public: FROM
TIME TO TIME AFTER THE EFFECTIVE DATE OF THIS REGISTRATION STATEMENT.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, check the following box.
[ ]
If any of the securities being registered on this Form are to be offered
on a delayed or continuous basis pursuant to Rule 415 under the Securities Act
of 1933, other than securities offered only in connection with dividend or
interest reinvestment plans, check the following box. [X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective statement for the same
offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule
434, please check the following box. [ ]
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CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
=============================================================================================================
PROPOSED PROPOSED MAXIMUM AMOUNT OF
TITLE OF EACH CLASS AMOUNT TO BE MAXIMUM OFFERING AGGREGATE OFFERING REGISTRATION
OF SECURITIES TO BE REGISTERED REGISTERED(1) PRICE PER SHARE(2) PRICE(1)(2) FEE
- -------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, no par value..... 1,499,998 $37.875 $56,812,424 $14,999
=============================================================================================================
</TABLE>
(1) Pursuant to Rule 416 under the Securities Act, this Registration
Statement also relates to a presumably indeterminable number of shares
of Common Stock which are issuable upon stock splits, stock dividends,
recapitalizations or other similar transactions.
(2) Estimated solely for the purpose of computing the registration fee and
based on the average high and low sale prices of the Common Stock as
reported on the Nasdaq National Market on February 24, 2000.
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF
THE SECURITIES ACT OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME EFFECTIVE ON
SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(a), MAY
DETERMINE.
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<PAGE> 2
CELERITEK, INC.
1,499,998 SHARES
OF COMMON STOCK
The selling stockholders listed inside are offering to sell up to
1,499,998 shares of Celeritek, Inc. common stock for their own account. We will
not receive any proceeds from such sales. We issued these shares of our common
stock to the selling stockholders in private transactions.
Our common stock is listed on the Nasdaq National Market under the
symbol "CLTK." On February 24, 2000, the last reported sale price for the common
stock on the Nasdaq National Market was $38.25 per share.
YOU SHOULD CONSIDER CAREFULLY THE RISK FACTORS BEGINNING ON PAGE 3
BEFORE MAKING A DECISION TO PURCHASE OUR STOCK.
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NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY SECURITIES
COMMISSION HAS APPROVED OR DISAPPROVED OF THESE SECURITIES OR PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
The date of this Prospectus is February __, 2000.
<PAGE> 3
ABOUT CELERITEK
Celeritek designs, develops, manufactures and markets gallium arsenide
radio-frequency integrated circuits and high-frequency radio transceiver
subsystems and components that provide core transmit and receive functions for
high band width wireless voice and data communications systems and defense
electronics. Our primary customers include original equipment manufacturers who
integrate our products into their products. Our customers utilize our
semiconductor products primarily in handsets for cellular and PCS systems and
wireless local loop subscriber units. Customers use our subsystem products in
microwave radios, satellite-based communications and defense electronics
systems. Our defense electronics products are used for applications such as
missile guidance, electronic countermeasures and communications satellites.
We were incorporated in California in December 1984. Our executive
offices are located at 3236 Scott Boulevard, Santa Clara, California 95054, and
our telephone number is (408) 986-5060.
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RISK FACTORS
You should carefully consider the risks described below before making an
investment decision. The risks and uncertainties described below are not the
only ones facing Celeritek. Additional risks and uncertainties not presently
known to us or that we currently deem immaterial may also impair our business
operations. If any of the following risks actually occur, our business, results
of operations or cash flows could be adversely affected. In those cases, the
trading price of our common stock could decline, and you may lose all or part of
your investment.
OUR OPERATING RESULT MAY FLUCTUATE SIGNIFICANTLY, AND ANY FAILURE TO MEET
FINANCIAL EXPECTATIONS MAY DISAPPOINT SECURITIES ANALYSTS OR INVESTORS AND
RESULT IN A DECLINE IN OUR STOCK PRICE.
Our quarterly results have fluctuated in the past, and may continue to
fluctuate in the future. These fluctuations may cause our stock price to
decline. Some of the factors that may cause our operating results to fluctuate
include:
o the timing, cancellation or delay of customer orders;
o the mix of products that we sell;
o changes in our manufacturing capacity and variations in our utilization
of this capacity;
o variations in our manufacturing yields;
o the timing of our introduction of new products and the introduction of
new products by our competitors;
o market acceptance of our products;
o variations in average selling prices of our products; and
o changes in our inventory levels.
Any unfavorable changes in the factors listed above or general industry and
global conditions could have a material adverse effect on our business,
operating results and financial condition. For example, during fiscal 1999, a
number of our commercial and defense contracts were either terminated or delayed
and our revenues declined substantially. We cannot assure you that additional
customers will not terminate contracts, that customer orders will not be
delayed, or that customers will ever reinstate orders under contracts which have
been delayed. We cannot assure you that we will be able to achieve or maintain
quarterly profitability in the future.
Due to fluctuations in our revenue and operating expenses, we believe
that period-to-period comparisons of our results of operations are not a good
indication of our future performance. It is possible that in some future quarter
or quarters, our operating results will be below the expectations of securities
analysts or investors. In that case, our stock price could fluctuate
significantly or decline.
WE WILL NEED TO KEEP PACE WITH RAPID PRODUCT AND PROCESS DEVELOPMENT AND
TECHNOLOGICAL CHANGES TO BE COMPETITIVE.
We compete in markets with rapidly changing technologies, evolving
industry standards and continuous improvements in products. To be competitive we
will need to continually improve our products and keep abreast of new
technology. For example, our ability to grow will depend substantially on our
ability to continue to apply our radio frequency and microwave signal processing
expertise and GaAs semiconductor technologies to existing and emerging
commercial wireless communications markets. New process technologies could be
developed that have characteristics that are superior to our current processes.
If we are unable to develop competitive processes or design products using new
technologies, our operating results would be adversely affected. If we are
unable to design, manufacture and market new products for existing or
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emerging commercial markets successfully, our business, operating results and
financial condition will suffer. We cannot assure you that we will be able to
respond to technological advances, changes in customer requirements or changes
in regulatory requirements or industry standards. Any significant delays in our
development, introduction or shipment of products could have a material adverse
effect on our business, operating results and financial condition.
WE MAY FACE CONSTRAINTS ON OUR MANUFACTURING CAPACITY THAT WOULD LIMIT OUR
ABILITY TO INCREASE OUR SALES VOLUME.
Our ability to respond to increased demand for our products is limited
by our manufacturing capacity. If our production volumes increase significantly
from expected levels, we will be required to hire, train and manage additional
production personnel to successfully increase our production capacity.
Additionally, we will be required to install processing and test equipment to
increase capacity. This equipment can have long lead times to deliver and
install. We cannot assure you that we would be able to implement these changes
successfully and in a timely manner. We have begun to use an independent foundry
to supplement the manufacture of our wafers. If this foundry is unable to
deliver our products in a timely manner at acceptable yields, it could have an
adverse affect on our capacity. A delay for any reason in capacity increase
would limit our ability to increase sales volumes. In addition, if we fail to
increase production and do not have sufficient capacity to satisfy the demand
for our products, our relationships with customers could be harmed.
THE VARIABILITY OF OUR MANUFACTURING YIELDS MAY AFFECT OUR GROSS MARGINS.
The success of our business depends largely on our ability to produce
our products efficiently through a manufacturing process that results in a large
number of usable products, or yield, from any particular production run. In the
past we have experienced significant delays in our product shipments due to
lower than expected production yields. Due to the rigid technical requirements
for our products and manufacturing processes, our production yields can be
negatively affected for a variety of reasons, some of which are beyond our
control. For instance yield may be reduced due to:
o defects in masks which are used to transfer circuit patterns on to
wafers;
o impurities in materials used;
o contamination of the manufacturing environment; and
o equipment failures.
Our manufacturing yields also vary significantly among our products due
to product complexity and the depth of our experience in manufacturing a
particular product. We cannot assure you that we will not experience problems
with our production yield in the future. Decreases in our yields can result in
substantially higher costs for our products. If we cannot maintain acceptable
yields in the future our business, operating results, and financial condition
will suffer.
BECAUSE MANY OF OUR EXPENSES ARE FIXED, OUR EARNINGS WILL DECLINE IF WE DO NOT
MEET OUR PROJECTED SALES.
Our business requires us to invest heavily in manufacturing equipment
and a related support infrastructure that we must pay for regardless of our
level of sales. To support our manufacturing capacity we also incur costs for
maintenance and repairs and employ personnel for manufacturing and process
engineering functions. These expenses, along with depreciation costs also do not
vary greatly, if at all, as our sales decrease. In addition, the lead time for
developing and manufacturing our products often require us to invest in
manufacturing capacity in anticipation of future demand. If future demand does
not materialize or if our product sales decline we may continue to incur many of
these manufacturing-related costs causing our results to suffer. For instance,
during fiscal 1999, demand for some of our products declined faster than our
ability to reduce our costs and our business was negatively affected. If our
sales projections are inaccurate or we experience declines in demand for our
products we may not be able to reduce many of our costs very rapidly, if at all,
and our business, operating results and financial condition may be harmed.
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WE DEPEND ON A SMALL NUMBER OF CUSTOMERS. IF WE LOSE ONE OR MORE OF OUR
SIGNIFICANT CUSTOMERS, OR IF PURCHASES BY ONE OF OUR KEY CUSTOMERS DECREASE, OUR
REVENUES WILL DECLINE AND OUR BUSINESS WILL BE NEGATIVELY IMPACTED.
A substantial portion of our sales are derived from sales to original
equipment manufacturers. For example, in the nine months ended December 31, 1999
sales to our top ten customers accounted for approximately 63% of our total net
sales, and one customer accounted for more than 10% of our sales for this
period. We expect that sales to a limited number of customers will account for a
large percentage of our sales in the future. Where our products are designed
into an original equipment manufacturer's product, our sales volumes depend upon
the commercial success of the original equipment manufacturer's product. Sales
to most of our large customers can vary significantly from quarter to quarter.
For instance, commercial wireless and communications markets may not grow, or
may grow more slowly than we anticipate. Our operating results have been
materially and adversely affected in the past by the failure of anticipated
orders to be realized and by deferrals or cancellations of orders as a result of
changes in demands for our customers' products. Such fluctuations in demand or
the loss of one or more of these customers could negatively impact our business,
operating results and financial condition.
OUR PRODUCTS MAY NOT PERFORM AS DESIGNED IN COMPLEX SYSTEMS AND MAY HAVE ERRORS
OR DEFECTS THAT ARE FOUND ONLY AFTER FULL DEPLOYMENT WHICH COULD RESULT IN
LIABILITY CLAIMS AGAINST US.
Our customers establish demanding specifications for performance and
reliability of our products. We can not assurance you that problems will not
occur in the future with respect to performance and reliability of our products
in conforming to customer specifications. If such problems do occur, we could
experience increased costs, delays in or reductions, cancellations or
rescheduling of orders and shipments, product returns and discounts, and product
redesigns, any of which would have a negative impact on our business, operating
results and financial condition. Errors in our products may result in legal
claims that could damage our reputation and our business, increase our expenses
and impair our operating results.
RAPID TECHNOLOGICAL CHANGE IN THE COMMUNICATIONS INDUSTRY MAY RENDER OUR
PRODUCTS OR INVENTORY OBSOLETE.
Many of our products are components in communication or other equipment
with a relatively short life cycle. Our inventory is subject to rapid
obsolescence due to the short life cycle of the end products into which our
products integrate. For example, the life cycle of cellular and PCS telephones
is expected to be relatively short with models, features and functionality of
such equipment evolving rapidly. In fiscal 1999, we wrote off obsolete inventory
when one of our customers stopped producing the handset that incorporated our
power amplifier. Our business, operating results and financial condition could
be materially adversely affected by excess or obsolete inventory levels if our
customers' products evolve more rapidly than anticipated or if demand for a
product does not materialize.
INTENSE COMPETITION IN OUR INDUSTRY COULD RESULT IN OUR LOSING CUSTOMERS OR
BEING UNABLE TO ATTRACT NEW CUSTOMERS. AS A RESULT, OUR REVENUE COULD DECLINE OR
WE COULD EXPERIENCE LOSSES.
We compete in an intensely competitive industry and we expect our
competition to increase. A number of companies produce products that compete
with ours or could enter into competition with us. Such competitors or potential
future competitors, include, Alpha Industries, Inc., Anadigics Inc., Conexant
Systems, Inc., Fujitsu Compound Semiconductor Inc., Hitachi Ltd., Microwave
Technology Inc., NJRC, RF Micro Devices Inc., Remec, Inc., Royal Philips
Electronics, N.V., SPC Electronics America, Inc., ST Microwave, Telaxis
Communications Corporation and TriQuint Semiconductor, Inc. In addition, a
number of smaller companies may introduce competing products. Many of our
current and potential competitors have significantly greater financial,
technical, manufacturing and marketing resources than we have and have achieved
market acceptance of their existing technologies. Our ability to compete
successfully depends upon a number of factors, including
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o the rate at which our customers incorporate our products into their
systems;
o our product quality, performance and price;
o the effectiveness of our sales and marketing personnel;
o our ability to rapidly develop new products with commercially desirable
features;
o our ability to produce and deliver products to our customer's schedules;
o our capability to evolve as industry standards change; and
o the number and nature of our competitors.
We cannot assure you that we will be able to compete successfully with our
exiting or new competitors. If we are unable to compete successfully in the
future, our business, operating results and financial condition will be harmed.
WE DEPEND ON A RELATIVELY SMALL NUMBER OF SUPPLIERS AND VENDORS. IF WE LOSE ONE
OR MORE OF THESE SOURCES OF SUPPLIES OR SERVICES, DELIVERY OF OUR PRODUCTS COULD
BE DELAYED OR PREVENTED AND OUR BUSINESS AND OUR BUSINESS COULD SUFFER.
Some of the components for our existing products are only available from
single sources, and certain other components for our products are presently
available or acquired only from a limited number of suppliers. In the event that
any of these suppliers are unable to fulfill our requirements in a timely
manner, we may experience an interruption in production until we locate
alternative sources of supply. Similarly, we contract with vendors in Asia to
assemble and test most of our products. In certain circumstances one vendor
performs assembly and testing services for all of our supply of a single
product. The failure of one or more of our key suppliers or vendors to fulfill
our orders in a timely manner and with acceptable quality and yields could cause
us to not meet our contractual obligations, could damage our customer
relationships and could harm our business, operating results and financial
condition.
OUR PRODUCTS HAVE EXPERIENCED RAPIDLY DECLINING UNIT PRICES.
In each of the markets where we compete, prices of established products
tend to decline significantly over time. Accordingly, to remain competitive, we
believe that we must continue to develop product enhancements and new
technologies that will either slow the price declines of our products or reduce
the cost of producing and delivering our products. If we fail to do so, our
results of operations would be materially and adversely affected.
WE DEPEND ON OUR KEY MANAGERIAL AND TECHNICAL PERSONNEL. IF WE CAN NOT ATTRACT
AND RETAIN PERSONS FOR OUR CRITICAL MANAGEMENT AND TECHNICAL FUNCTIONS WE MAY BE
UNABLE TO COMPETE.
Our success depends in significant part upon the continued service of
our key technical, marketing, sales and senior management personnel and our
continuing ability to attract and retain highly qualified technical, marketing,
sales and managerial personnel. In particular, in the past we have experienced
difficulty attracting and retaining qualified engineers and thin-film microwave
technicians. Competition for these kinds of experienced personnel is intense,
and we can not assure you that we can retain our key technical and managerial
employees or that we can attract, assimilate or retain other highly qualified
technical and managerial personnel in the future. Our failure to attract,
assimilate or retain key personnel could have a material adverse effect on our
business, operating results and financial condition.
WE ARE SUBJECT TO STRINGENT ENVIRONMENTAL REGULATION WHICH COULD NEGATIVELY
IMPACT OUR BUSINESS.
We are subject to a variety of federal, state and local laws, rules and
regulations related to the discharge and disposal of toxic, volatile and other
hazardous chemicals used in our manufacturing process. Our failure to comply
with present or future regulations could result in fines being imposed on us,
suspension
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of our production or a cessation of our operations. Such regulations could
require us to acquire significant equipment or to incur substantial other
expenses in order to comply with environmental regulations. Any past or future
failure by us to control the use of or to restrict adequately the discharge of
hazardous substances could subject us to future liabilities and could cause our
business, operating results and financial condition to suffer. In addition,
under some environmental laws and regulations we could be held financially
responsible for remedial measures if our properties are contaminated, even if we
did not cause the contamination.
IF WE ARE UNABLE TO EFFECTIVELY PROTECT OUR INTELLECTUAL PROPERTY OUR ABILITY TO
COMPETE IN THE MARKET MAY BE IMPAIRED.
Our success depends in part on our ability to obtain patents, trademarks
and copyrights, maintain trade secret protection and operate our business
without infringing on the proprietary rights of other parties. Although there
are no pending lawsuits against us or notices that we are infringing anyone's
intellectual property rights, we could be notified in the future that we are
infringing someone's intellectual property rights. We cannot be sure that we
could obtain licenses on commercially reasonable terms or that litigation would
not occur if there were any infringement. If we were unable to obtain necessary
licenses or if litigation arose out of infringement claims, our operating
results could be adversely affected. In addition to patent and copyright
protection, we also rely on trade secrets, technical know-how and other
unpatented proprietary information relating to our product development and
manufacturing activities. We try to protect this information with
confidentiality agreements with our employees and other parties. We cannot be
sure that these agreements will not be breached, that we would have adequate
remedies for any breach or that our trade secrets and proprietary know-how will
not otherwise become known or independently discovered by others.
In addition, to retain our intellectual property rights we may be
required to seek legal action against infringing parties. This legal action may
be costly and may result in a negative outcome. An adverse outcome in such
litigation could subject us to significant liability to third parties, could put
our patents at risk of being invalidated or narrowly interpreted and could put
our patent applications at risk of not issuing. If we are not successful in
protecting our intellectual property our business will suffer.
OUR ORGANIZATIONAL DOCUMENTS AND STOCKHOLDER RIGHTS PLAN MAKE IT HARDER FOR US
TO BE ACQUIRED WITHOUT THE CONSENT AND COOPERATION OF OUR BOARD OF DIRECTORS AND
MANAGEMENT AND MAY LIMIT THE PRICE THAT INVESTORS MIGHT BE WILLING TO PAY IN THE
FUTURE FOR OUR COMMON STOCK.
The ability of our board of directors to issue preferred stock at any
time with rights preferential to those of our common stock and the presence of
our stockholder rights plan may deter or prevent a takeover attempt, including a
takeover attempt in which the potential purchaser offers to pay a per share
price greater than the current market price for our common stock. The practical
effect of these provisions is to require a party seeking control of our company
to negotiate with our board. These provisions could limit the price that
investors might be willing to pay in the future for our common stock.
WE ARE SUBJECT TO RISKS FROM INTERNATIONAL SALES AND OPERATIONS.
We rely on vendors outside of the United States for manufacturing and
assembly. We contract with third parties located in Asia to supply a substantial
portion of our manufactured products and assemble nearly all of our products
overseas. In addition, we have a design center in the United Kingdom. Due to our
reliance on foreign suppliers, assemblers and the conduct of our research and
development activities in the United Kingdom, we are subject to risks of
conducting business outside of the United States. These risks include the
negative impact of currency fluctuations, which could affect the price of our
products and/or the cost of producing them.
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NOTE REGARDING FORWARD-LOOKING STATEMENTS
This prospectus contains forward-looking statements. These statements
relate to future events or our future financial performance. We have attempted
to identify forward-looking statements by terminology including "believes,"
"can," continue," "could," "estimates," "expects," "intends," "may," "plans,"
"potential," "predicts," "should," or "will" or the negative of these terms or
other comparable terminology.
Forward looking statements involve known and unknown risks and
uncertainties which may cause our actual results in future periods to differ
materially from what is currently anticipated. We make cautionary statements in
certain sections of this prospectus, including under "Risk Factors." You should
read these cautionary statements as being applicable to all related
forward-looking statements wherever they appear in:
o this prospectus,
o in the materials referred to in this prospectus;
o in the materials incorporated by reference into this prospectus;
and
o in our press releases.
No forward-looking statement is a guarantee of future performance and
you should not place undue reliance on any forward-looking statement.
USE OF PROCEEDS
We will not receive any proceeds from the sale of the common stock by
the selling stockholders.
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SELLING STOCKHOLDERS
The selling stockholders hold unregistered shares of our common stock
that they obtained directly from us in a private placement that closed between
February 4, 2000 and February 10, 2000. We agreed to register 1,499,998 shares
of our common stock for resale by the selling stockholders. The selling
stockholders may offer and sell the shares from time to time pursuant to the
terms of this prospectus, as further discussed under the caption, "Plan of
Distribution."
The following table sets forth information for each selling stockholder
based on information known to us as of February 23, 2000 when there were
9,261,001 shares of our common stock outstanding. The table assumes that the
selling stockholders sell all of the shares listed next to their names in the
column entitled "Shares to be Offered." Information in the table is based upon
information supplied to us by the selling stockholders. Except as otherwise
indicated, we believe that the persons or entities named in the following table
have sole voting and investment power with respect to all shares of the common
stock shown as owned by them, subject to community property laws where
applicable. To prevent dilution to the selling stockholders, the numbers in the
table may change because of stock splits, stock dividends or similar events
involving our common stock. None of the selling stockholders have held any
positions or offices or have had material relationships with us or any of our
affiliates within the past three years other than as a result of their ownership
of our common stock.
<TABLE>
<CAPTION>
SHARES TO BE
SHARES OWNED OWNED
BEFORE OFFERING AFTER OFFERING
---------------------- SHARES TO BE ----------------------
NAME NUMBER PERCENTAGE OFFERED NUMBER PERCENTAGE
- --------------------------------------- ------- ---------- ------------ ------ ----------
<S> <C> <C> <C> <C> <C>
Kahn Capital Management L.P.(1) 545,000 5.9% 545,000 0 0
Brian Kahn(1) 69,000 * 69,000 0 0
Bricoleur Partners I L.P.(2) 258,000 2.8% 10,500 247,500 2.7%
Bricoleur Partners II L.P.(2) 209,300 2.3% 170,300 39,000 *
Aventine International Ltd.(2) 90,100 * 9,200 80,900 *
Lyxor Master Fund Channel Islands(3) 10,000 * 10,000 0 0
Gruber & McBaine Int'l(3) 40,900 * 16,000 24,900 *
Jon D. Gruber(3) 19,000 * 5,000 14,000 *
Thomas O. Lloyd-Butler(3) 3,000 * 1,000 2,000 *
Lagunitas Partners L.P.(3) 135,000 * 28,000 107,000 1.2%
Gottardo Bank 99,999 1.1% 99,999 0 0
John Galt Fund L.P. 69,444 * 69,444 0 0
John Galt Offshore Fund 3,611 * 3,611 0 0
Zurich HFR Nmaster Hedge Fund Index LTD 7,500 * 7,500 0 0
Asset Management Holding Co 19,444 * 19,444 0 0
Schottenfeld Associates 150,000 1.6% 150,000 0 0
Puglisi Capital Partners, L.P. 50,000 * 50,000 0 0
Snorkel Bay & Co 150,000 1.6% 150,000 0 0
Snail Sand & Co 47,000 * 47,000 0 0
J.B. Were Global Small Companies Fund(4) 7,000 * 7,000 0 0
NZFunds Global Small Companies Trust(4) 27,000 * 27,000 0 0
James Sloman Jr. 5,000 * 5,000 0 0
</TABLE>
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* Represents beneficial ownership of less than 1% of common stock.
(1) Mr. Kahn has voting and investment power over the shares held by Kahn
Capital Management L.P. Mr. Kahn disclaims beneficial ownership of shares
held by Kahn Capital Management, L.P., except to the extent of his direct
pecuniary interest in such shares.
(2) Bricoleur Capital Management L.L.C. has voting and investment power over
the shares held by Bricoleur Partners I L.P., Bricoleur Partners II L.P.,
Aventine International Ltd. and Lyxor Master Fund Channel Islands. The
aggregate share ownership of these funds and other funds managed by
Bricoleur Capital Management L.L.C. is 616,400 or 6.7% prior to the
offering and 416,400 or 4.5% after the completion of the offering.
Bricoleur Capital Management L.L.C. disclaims beneficial ownership over
shares held by funds it manages except to the extent of its pecuniary
interest in such shares.
(3) Gruber & McBain Capital Management LLC has voting and investment power over
shares held by Gruber & McBain Int'l and Lagunitas Partners LP. Mr. Gruber
and Mr. Lloyd-Butler are members of Gruber & McBain Capital Management LLC.
The aggregate ownership of persons and funds affiliated with Gruber &
McBain Capital Management LLC prior to the offering is 274,500 or 3% and
224,500 or 2.4% after the offering. Gruber & McBain Capital Management LLC
disclaims beneficial ownership of shares held by its affiliated persons and
entities.
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(4) The J.B. Were Global Small Companies Fund and the NZFunds Global Small
Companies Trust are affiliated with Wellington Management Company, L.L.P.
Prior to the offering Wellington Management Company, L.L.P. has shared
power to vote or dispose of 461,800, or 5% of shares of common stock
outstanding prior to the offering and 427,800 shares, or 4.6% after the
offering. Wellington Capital Management Company L.L.P. disclaims beneficial
ownership of these shares except to the extent of its direct pecuniary
interest therein.
PLAN OF DISTRIBUTION
We will not receive any proceeds from the sale of the shares. The shares
are being offered on behalf of the selling stockholders. The shares may be sold
or distributed from time to time by the selling stockholders, or by pledgees,
donees or transferees of, or other successors in interest to, the selling
stockholders, directly to one or more purchasers (including pledgees) or through
brokers, dealers or underwriters who may act solely as agents or may acquire
shares as principals, at market prices prevailing at the time of sale, at prices
related to such prevailing market prices, at negotiated prices, or at fixed
prices, which may be changed.
The sale of the shares may be effected in one or more of the following
methods:
o ordinary brokers' transactions, which may include long or short sales;
o transactions involving cross or block trades or otherwise on the
Nasdaq National Market;
o purchases by brokers, dealers or underwriters as principal and resale
by such purchasers for their own accounts pursuant to this prospectus;
o "at the market" to or through market makers or into an existing market
for the shares;
o in other ways not involving market makers or established trading
markets, including direct sales to purchases or sales effected through
agents;
o through transactions in options, swaps or other derivatives (whether
exchange-listed or otherwise); or
o any combination of the foregoing, or by any other legally available
means.
In addition, the selling stockholders or their successors in interest
may enter into hedging transactions with broker-dealers who may engage in short
sales of shares in the course of hedging the positions they assume with the
selling stockholders. The selling stockholders or their successors in interest
may also enter into option or other transactions with broker-dealers that
require the delivery by such broker-dealers of the shares, which shares may be
resold thereafter pursuant to this prospectus.
Brokers, dealers, underwriters or agents participating in the
distribution of the shares as agents may receive compensation in the form of
commissions, discounts or concessions from the selling stockholders and/or
purchasers of the shares for whom such broker-dealers may act as agent, or to
whom they may sell as principal, or both (which compensation as to a particular
broker-dealer may be less than or in excess of customary commissions). The
selling stockholders and any broker-dealers who act in connection with the sale
of shares hereunder may be deemed to be "underwriters" within the meaning of the
Securities Act, and any commissions they receive and proceeds of any sale of
shares may be deemed to be underwriting discounts and commissions under the
securities act. Neither we nor any selling stockholder can presently estimate
the amount of such compensation. We know of no existing arrangements between any
selling stockholder, any other stockholder, broker, dealer, underwriter or agent
relating to the sale or distribution of the shares.
LEGAL MATTERS
The validity of the issuance of common stock will be passed upon for us
by Wilson Sonsini Goodrich & Rosati, P.C., Palo Alto, California.
-10-
<PAGE> 12
EXPERTS
Ernst & Young LLP, independent auditors, have audited our consolidated
financial statements and schedule included in our Annual Report on Form 10-K for
the year ended March 31, 1999, as set forth in their report, which is
incorporated by reference in this prospectus and elsewhere in the registration
statement. Our financial statements and schedule are incorporated by reference
in reliance on Ernst & Young LLP's report, given on their authority as experts
in accounting and auditing.
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and special reports, proxy statements and
other information with the SEC. Our filings are available to the public over the
internet at the SEC's web site at http://www.sec.gov. You may also read and copy
any document we file at the SEC's Public Reference Rooms in Washington, D.C.,
New York, New York and Chicago, Illinois. The Public Reference Room in
Washington D.C. is located at 450 Fifth Street, N.W. Please call the SEC at
1-800-SEC-0330 for further information on the Public Reference Rooms.
The SEC allows us to "incorporate by reference" the information we file
with it, which means that we can disclose important information to you by
referring you to those documents. The information incorporated by reference is
an important part of this prospectus, and information that we file later with
the SEC will automatically update and supersede this information. We incorporate
by reference in this prospectus and refer you to the documents listed below:
o our Annual Report on Form 10-K for the fiscal year ended March 31,
1999;
o our Proxy Statement for the 1999 Annual Meeting of Stockholders;
o our Quarterly Reports on Form 10-Q for the quarters ended June 30,
September 30, and December 31, 1999;
o the description of our common stock contained in our registration
statement on Form 8-A, filed on November 2, 1995, including any
amendment or report filed for the purpose of updating the description;
and
o all other reports filed pursuant to Section 13(a) or 15(d) of the
Securities Exchange Act of 1934 since March 31, 1999.
This prospectus is part of a registration statement on Form S-3 filed
with the SEC under the Securities Act of 1933. This prospectus does not contain
all of the information set forth in the registration statement. You should read
the registration statement for further information about our company and the
common stock. You may request a copy of these filings at no cost. Please direct
your requests to:
Investor Relations
Celeritek, Inc.
3236 Scott Boulevard
Santa Clara, California 95054
(408) 986-5060
You should rely only on the information incorporated by reference or
provided in this prospectus or any prospectus supplement. We have not authorized
anyone else to provide you with different information. You should not assume
that the information in this prospectus or any prospectus supplement is accurate
as of any date other than the date on the front page of those documents.
-11-
<PAGE> 13
1,499,998 SHARES
CELERITEK, INC.
Common Stock
--------
PROSPECTUS
--------
February __, 2000
You should rely only on the information incorporated by reference or provided in
this prospectus. We have not authorized anyone to give you different
information. The selling stockholders will not make an offer of these shares in
any state where the offer is not permitted. You should not assume that the
information in this prospectus, or any supplement, is accurate as of any date
other than the date on the front of those documents.
Table of Contents:
<TABLE>
<CAPTION>
Page
<S> <C>
About Celeritek 2
Risk Factors 3
Note Regarding Forward-Looking Statements 8
Use of Proceeds 8
Selling Stockholders 9
Plan of Distribution 10
Legal Matters 10
Experts 11
Where You Can Find More Information 11
</TABLE>
<PAGE> 14
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The Registrant will pay all reasonable expenses incident to the
registration of the shares other than any commissions and discounts of
underwriters, dealers or agents. Such expenses are set forth in the following
table. All of the amounts shown are estimates except the SEC registration fee.
<TABLE>
<CAPTION>
AMOUNT TO BE PAID
-----------------
<S> <C>
SEC registration fee.................................... $ 15,680
Legal fees and expenses................................. $ 15,000
Accounting fees and expense.............................. $ 25,000
Miscellaneous expenses ................................. $ 4,320
---------
Total ................................................. $ 60,000
=========
</TABLE>
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Company's Articles of Incorporation limit the liability of directors
for monetary damages to the maximum extent permitted by California law. Such
limitation of liability has no effect on the availability of equitable remedies,
such as injunctive relief or rescission.
The Company's Bylaws provide that the Company will indemnify its
directors and officers and may indemnify its employees and agents (other than
officers and directors) against certain liabilities to the fullest extent
permitted by California law. The Company is also empowered under its Bylaws to
enter into indemnification agreements with its directors and officers and to
purchase insurance on behalf of any person whom it is required or permitted to
indemnify. The Company has entered into indemnification agreements with each of
its current directors and officers which provide for indemnification of, and
advancement of expenses to, such persons to the greatest extent permitted by
California law, including by reason of action or inaction occurring in the past
and circumstances in which indemnification and advancement of expenses are
discretionary under California law. Insofar as indemnification for liabilities
arising under the Securities Act may be permitted to directors, officers or
persons controlling the Company pursuant to the foregoing provisions, the
Company has been informed that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the
Securities Act and is therefore unenforceable.
ITEM 16. EXHIBITS.
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION OF DOCUMENT
------- -----------------------
<S> <C>
4.1(1) Restated Articles of Incorporation of Registrant
4.2(1) Bylaws of Registrant, as amended to date.
4.3(1) Form of Registrant's Stock Certificate
4.4 Registration Rights Agreement dated February 4, 2000 between the
Registrant and the Parties identified on Exhibit A thereto.
5.1 Opinion of Wilson Sonsini Goodrich & Rosati, P.C.
23.1 Consent of Ernst & Young LLP, Independent Auditors
23.2 Consent of Counsel (included in Exhibit 5.1)
24.1 Power of Attorney (included on page II-4)
</TABLE>
(1) Incorporated by reference from the Company's Registration Statement of Form
S-1 (Commission File No. 33-98854), which became effective on December 19,
1995.
II-1
<PAGE> 15
ITEM 17. UNDERTAKINGS.
Celeritek hereby undertakes:
1. To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement:
(a) To include any prospectus required by Section 10(a)(3) of
the Securities Act;
(b) To reflect in the prospectus any facts or events arising
after the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in the registration
statement;
(c) To include any material information with respect to the plan
of distribution not previously disclosed in the registration statement or any
material change to such information in the registration statement; provided,
however, that paragraphs (a) and (b) above do not apply if the information
required to be included in a post-effective amendment by those paragraphs is
contained in periodic reports filed by Celeritek pursuant to Section 13 or
Section 15(d) of the Exchange Act that are incorporated by reference in the
Registration Statement.
2. That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
3. To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
4. That, for the purpose of determining any liability under the
Securities Act, each filing of Celeritek's annual report pursuant to Section
13(a) or Section 15(d) of the Exchange Act, (and, where applicable, each filing
of an employee benefit plan's annual report pursuant to Section 15(d) of the
Exchange Act) that is incorporated by reference in the registration statement
shall be deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
5. To deliver or cause to be delivered with the prospectus, to each
person to whom the prospectus is sent or given, the latest annual report to
security holders that is incorporated by reference in the prospectus and
furnished pursuant to and meeting the requirements of Rule 14a-3 or Rule 14c-3
under the Exchange Act; and, where interim financial information required to be
presented by Article 3 of Regulation S-X are not set forth in the prospectus, to
deliver, or cause to be delivered to each person to whom the prospectus is sent
or given, the latest quarterly report that is specifically incorporated by
reference in the prospectus to provide such interim financial information.
6. Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of Celeritek pursuant to the foregoing provisions, or otherwise, Celeritek has
been advised that in the opinion of the SEC such indemnification is against
public policy as expressed in the Securities Act and is, therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by Celeritek of expenses incurred or paid by
a director, officer, or controlling person of Celeritek in the successful
defense of any action, suit, or proceeding) is asserted by such director,
officer, or controlling person in connection with the securities being
registered, Celeritek will,
II-2
<PAGE> 16
unless in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the
Securities Act and will be governed by the final adjudication of such issue.
II-3
<PAGE> 17
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the city of San Jose, state of California, on February 24, 2000.
CELERITEK, INC.
By: _____________________________
Tamer Husseni
Chief Executive Officer,
President and Director
POWER OF ATTORNEY
We, the undersigned officers and directors of Celeritek, Inc. hereby
constitute Tamer Husseni and Margaret E. Smith, and each of them individually,
our true and lawful attorney-in-fact, with full power of substitution, to sign
for us and in our names in the capacities indicated below the Registration
Statement filed herewith and any and all amendments to said Registration
Statement, and generally to do all such things in our name and behalf in our
capacities as officers and directors to enable Celeritek, Inc. to comply with
the provisions of the Securities Act of 1933, as amended, and all requirements
of the Securities and Exchange Commission, hereby ratifying and confirming our
signatures as they may be signed by our said attorney to said Registration
Statement and any and all amendments thereto.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement and Power of Attorney has been signed below by the
following persons in the capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
Chief Executive Officer, President and Director February 24, 2000
- --------------------------- (Principal Executive Officer)
Tamer Husseni
Chief Financial Officer and Assistant Secretary February 24, 2000
- --------------------------- (Principal Financial and Accounting Officer)
Margaret E. Smith
Director February 24, 2000
- ---------------------------
Robert H. Gallagher
Director February 24, 2000
- ---------------------------
Thomas W. Hubbs
Director February 24, 2000
- ---------------------------
William D. Rasdal
Director February 24, 2000
- ---------------------------
Charles P. Waite
</TABLE>
II-4
<PAGE> 18
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION OF DOCUMENT
------- -----------------------
<S> <C>
4.1(1) Restated Articles of Incorporation of Registrant
4.2(1) Bylaws of Registrant, as amended to date.
4.3(1) Form of Registrant's Stock Certificate
4.4 Registration Rights Agreement dated February 4, 2000 between the
Registrant and the Parties identified on Exhibit A thereto.
5.1 Opinion of Wilson Sonsini Goodrich & Rosati, P.C.
23.1 Consent of Ernst & Young LLP, Independent Auditors
23.2 Consent of Counsel (included in Exhibit 5.1)
24.1 Power of Attorney (included on page II-4)
</TABLE>
(1) Incorporated by reference from the Company's Registration Statement of Form
S-1 (Commission File No. 33-98854), which became effective on December 19,
1995.
II-5
<PAGE> 1
EXHIBIT 4.4
CELERITEK, INC.
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (the "Agreement") is made as of
February 4, 2000, between Celeritek, Inc., a California corporation (the
"Company") and the persons (the "Purchasers") identified on EXHIBIT A to Common
Stock Purchase Agreement dated as of the date hereof (the "Purchase Agreement").
SECTION 1
RESTRICTIONS ON TRANSFERABILITY OF SECURITIES;
COMPLIANCE WITH SECURITIES ACT; REGISTRATION RIGHTS
CERTAIN DEFINITIONS. As used in this Agreement, the following terms
shall have the following respective meanings:
"Commission" shall mean the Securities and Exchange Commission or any
other federal agency at the time administering the Securities Act.
"Common Stock" shall mean Company Common Stock, no par value per share.
"Holder" shall mean (i) the Purchasers and (ii) any person holding
Registrable Securities to whom the rights under this Section 1 have been
transferred in accordance with Section 1.13 hereof.
"Registrable Securities" means the Shares until such time that such
securities have been (i) sold to or through a broker or dealer or underwriter in
a public distribution or a public securities transaction, or (ii) sold or are,
in the opinion of counsel for the Company, available for sale in a single
transaction exempt from the registration and prospectus delivery requirements of
the Securities Act so that all transfer restrictions and restrictive legends
with respect thereto are removed upon the consummation of such sale.
The terms "register," "registered" and "registration" refer to a
registration effected by preparing and filing a registration statement in
compliance with the Securities Act, and the declaration or ordering of the
effectiveness of such registration statement.
"Registration Expenses" shall mean all expenses, except as otherwise
stated below, incurred by the Company in complying with Section 1.5 hereof,
including, without limitation, all registration, qualification and filing fees,
printing expenses, escrow fees, fees and disbursements of counsel for the
Company, blue sky fees and expenses, the expense of any special audits incident
to or required by any such registration (but excluding the compensation of
regular employees of the Company which shall be paid in any event by the
Company).
<PAGE> 2
"Restricted Securities" shall mean the securities of the Company
required to bear the legend set forth in Section 1.3 hereof.
"Securities Act" shall mean the Securities Act of 1933, as amended, or
any similar federal statute and the rules and regulations of the Commission
thereunder, all as the same shall be in effect at the time.
"Selling Expenses" shall mean all underwriting discounts, selling
commissions and stock transfer taxes applicable to the securities registered by
the Holders and, except as set forth above, all reasonable fees and
disbursements of counsel for any Holder.
"Shares" shall mean the shares of Common Stock issued to the Purchaser
pursuant to the Purchase Agreement and any other securities issued in respect of
such securities upon any stock split, stock dividend, recapitalization, merger,
consolidation or similar event.
1.2 RESTRICTIONS ON TRANSFERABILITY. The Shares shall not be sold,
assigned, transferred or pledged except upon the conditions specified in this
Section 1. The Holder will cause any proposed purchaser, assignee, transferee,
or pledgee of any such shares held by the Holder to agree to take and hold such
securities subject to the provisions and upon the conditions specified in this
Section 1.
1.3 RESTRICTIVE LEGEND. Each certificate representing Shares and any
other securities issued in respect of the Shares upon any stock split, stock
dividend, recapitalization, merger, consolidation or similar event, shall
(unless otherwise permitted by the provisions of Section 1.4 below) be stamped
or otherwise imprinted with a legend in the following form (in addition to any
legend required under applicable state securities laws):
THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE BEEN ACQUIRED FOR
INVESTMENT AND HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT
OF 1933. SUCH SHARES MAY NOT BE SOLD OR TRANSFERRED IN THE
ABSENCE OF SUCH REGISTRATION UNLESS THE COMPANY RECEIVES AN
OPINION OF COUNSEL REASONABLY ACCEPTABLE TO IT STATING THAT SUCH
SALE OR TRANSFER IS EXEMPT FROM THE REGISTRATION AND PROSPECTUS
DELIVERY REQUIREMENTS OF SAID ACT.
Each Holder consents to the Company making a notation on its
records and giving instructions to any transfer agent of the Common Stock in
order to implement the restrictions on transfer established in this Section 1.
1.4 RESTRICTIONS ON TRANSFER; NOTICE OF PROPOSED TRANSFERS. The
holder of each certificate representing Restricted Securities by acceptance
thereof agrees to comply in all respects with the provisions of this Section
1.4. Prior to any proposed sale, assignment, transfer or pledge of any
Restricted Securities (other than (i) a transfer not involving a change in
beneficial ownership, (ii) any transfer by any Holder to (A) any individual or
entity controlled by, controlling, or under common control with, such Holder or
(B) any entity with respect to which such Holder (or any
-2-
<PAGE> 3
person controlled by, controlling, or under common control with, such Holder)
has the power to direct investment decisions, or (iv) in transactions in
compliance with Rule 144), and unless there is in effect a registration
statement under the Securities Act covering the proposed transfer, the holder
thereof shall give written notice to the Company of such holder's intention to
effect such transfer, sale, assignment or pledge. Each such notice shall
describe the manner and circumstances of the proposed transfer, sale, assignment
or pledge in sufficient detail, and shall be accompanied, at such holder's
expense by either (i) a written opinion of legal counsel who shall be, and whose
legal opinion shall be, reasonably satisfactory to the Company addressed to the
Company, to the effect that the proposed transfer of the Restricted Securities
may be effected without registration under the Securities Act, or (ii) a "no
action" letter from the Commission to the effect that the transfer of such
securities without registration will not result in a recommendation by the staff
of the Commission that action be taken with respect thereto, whereupon the
holder of such Restricted Securities shall be entitled to transfer such
Restricted Securities in accordance with the terms of the notice delivered by
the holder to the Company. Each certificate evidencing the Restricted Securities
transferred as above provided shall bear, except if such transfer is made
pursuant to Rule 144, the appropriate restrictive legend set forth in Section
1.3 above, except that such certificate shall not bear such restrictive legend
if in the opinion of counsel for such holder and the Company such legend is not
required in order to establish compliance with any provision of the Securities
Act. Notwithstanding the foregoing, so long as an executive officer or director
of the Holder serves as an executive officer or director of the Company, the
Holder agrees to not sell or transfer the Registrable Securities during periods
outside of the trading windows applicable to the officers of the Company as set
forth in the Company's Insider Trading Program adopted by the Company's Board of
Directors.
1.5 MANDATORY REGISTRATION. The Company shall prepare and on or prior
to the date that is fifteen (15) business days after the Closing Date (as
defined in the Purchase Agreement) file with the Commission a registration
statement (the "Registration Statement") on an appropriate form for registering
for resale by the Holder the Shares and the Company shall use its best efforts
to cause the Registration Statement to be declared effective no later than 120
days after the issuance of the Shares (the "Required Effective Date") pursuant
to the terms of the Purchase Agreement.
1.6 LIQUIDITY DAMAGES. In the event that the Registration Statement
is not declared effective by the Securities and Exchange Commission on or prior
to the Required Effective Date, and the cause of the delay is not related to
circumstances beyond the Company's control (such as the failure of the SEC to
review and act on the Registration Statement or amendments to the Registration
Statement in a timely manner), the Company shall pay to the Holders a cash
payment equal to (x) $0.133333 per Share (as adjusted for stock splits, stock
dividends, recapitalizations and similar events), times (y) the number of Shares
held by the Holder, times (z) the number of trading days after the Required
Effective Date that the Registration Statement is not effective.
1.7 EXPENSES OF REGISTRATION. All Registration Expenses incurred in
connection with all registrations pursuant to Section 1.5 shall be borne by the
Company. Unless otherwise stated, all Selling Expenses relating to securities
registered on behalf of the Holders and all other Registration Expenses shall be
borne by the Holders of such securities pro rata on the basis of the number of
shares so registered.
-3-
<PAGE> 4
1.8 REGISTRATION PROCEDURES. In the case of each registration,
qualification or compliance effected by the Company pursuant to this Section 1,
the Company will keep each Holder advised in writing as to the initiation of
each registration, qualification and compliance and as to the completion
thereof. At its expense the Company will:
(a) Prepare and file with the Commission a registration statement
with respect to such securities and use its best efforts to cause such
registration statement to become effective as soon as possible after the filing
thereof, and keep the Registration Statement effective pursuant to Rule 415 at
all times, subject to Section 1.8, until such date as is the earlier of (i) the
date on which all Registrable Securities have been sold by each Holder, and (ii)
the date on which the Registration Rights terminate as set forth in Section
1.15; and
(b) Furnish to the Holders participating in such registration and
to the underwriters of the securities being registered such reasonable number of
copies of the registration statement, preliminary prospectus, final prospectus
and such other documents as such underwriters may reasonably request in order to
facilitate the public offering of such securities.
1.9 SUSPENSION OF REGISTRATION. The Company shall promptly notify the
Holders of (i) the issuance by the SEC of a stop order suspending the
effectiveness of the Registration Statement, (ii) the happening of any event, of
which the Company has knowledge, as a result of which the prospectus included in
the Registration Statement, as then in effect, includes an untrue statement of a
material fact or omission to state a material fact required to be stated therein
or necessary to make the statements therein not misleading, and (iii) the
occurrence or existence of any pending corporate development that, in the
reasonable discretion of the Company, makes it appropriate to suspend the
availability of the Registration Statement, to comply with SEC rules. In each
case the Company shall use reasonable efforts to promptly prepare a supplement
or amendment to the Registration Statement to correct such untrue statement or
omission, and deliver such number of copies of such supplement or amendment to
each Holder as such Holder may reasonably request; provided that, the Company
may delay to the extent permitted by law the disclosure of material non-public
information concerning the Company the disclosure of which at the time is not,
in the good faith opinion of the Company, in the best interests of the Company
(an "Allowed Delay"). The Company shall promptly notify the Holders in writing
of the existence of an Allowed Delay and shall advise the Holders in writing to
cease all sales under the Registration Statement until the end of the Allowed
Delay.
1.10 INDEMNIFICATION.
(a) The Company will indemnify each Holder, each of its officers
and directors and partners, and each person controlling such Holder within the
meaning of Section 15 of the Securities Act, with respect to which registration,
qualification or compliance has been effected pursuant to this Section 1, and
each underwriter, if any, and each person who controls any underwriter within
the meaning of Section 15 of the Securities Act, against all expenses, claims,
losses, damages or liabilities (or actions in respect thereof), including any of
the foregoing incurred in settlement of any litigation, commenced or threatened,
arising out of or based on any untrue statement (or alleged untrue statement) of
a material fact contained in any registration statement, prospectus, offering
circular or other document, or any amendment or supplement thereto, incident to
any such registration, qualification or compliance, or based on any omission (or
alleged omission)
-4-
<PAGE> 5
to state therein a material fact required to be stated therein or necessary to
make the statements therein, in light of the circumstances in which they were
made, not misleading, or any violation by the Company of the Securities Act, the
Exchange Act, state securities law or any rule or regulation promulgated under
such laws applicable to the Company in connection with any such registration,
qualification or compliance, and within a reasonable period the Company will
reimburse each such Holder, each of its officers and directors, and each person
controlling such Holder, each such underwriter and each person who controls any
such underwriter, for any legal and any other expenses reasonably incurred in
connection with investigating, preparing or defending any such claim, loss,
damage, liability or action; provided that the Company will not be liable in any
such case to the extent that any such claim, loss, damage, liability or expense
arises out of or is based on any untrue statement or omission or alleged untrue
statement or omission, made in reliance upon and in conformity with written
information furnished to the Company by an instrument duly executed by such
Holder, controlling person or underwriter and stated to be specifically for use
therein.
(b) Each Holder will, if Registrable Securities held by such
Holder are included in the securities as to which such registration,
qualification or compliance is being effected, indemnify the Company, each of
its directors and officers, each underwriter, if any, of the Company's
securities covered by such a registration statement, each person who controls
the Company or such underwriter within the meaning of Section 15 of the
Securities Act, and each other such Holder, each of its officers and directors
and each person controlling such Holder within the meaning of Section 15 of the
Securities Act, against all claims, losses, damages and liabilities (or actions
in respect thereof) arising out of or based on any untrue statement (or alleged
untrue statement) of a material fact contained in any such registration
statement, prospectus, offering circular or other document, or any omission (or
alleged omission) to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, and within a
reasonable period will reimburse the Company, such Holders, such directors,
officers, persons, underwriters or control persons for any legal or any other
expenses reasonably incurred in connection with investigating or defending any
such claim, loss, damage, liability or action, in each case to the extent, but
only to the extent, that such untrue statement (or alleged untrue statement) or
omission (or alleged omission) is made in such registration statement,
prospectus, offering circular or other document in reliance upon and in
conformity with written information furnished to the Company by an instrument
duly executed by such Holder and stated to be specifically for use therein.
Notwithstanding the foregoing, the liability of each Holder under this
subsection (b) shall be limited in an amount equal to the gross proceeds before
expenses and commissions to each Holder received for the shares sold by such
Holder, unless such liability arises out of or is based on willful misconduct by
such Holder.
(c) Each party entitled to indemnification under this Section
1.10 (the "Indemnified Party") shall give notice to the party required to
provide indemnification (the "Indemnifying Party") promptly after such
Indemnified Party has actual knowledge of any claim as to which indemnity may be
sought, and shall permit the Indemnifying Party to assume the defense of any
such claim or any litigation resulting therefrom, provided that counsel for the
Indemnifying Party, who shall conduct the defense of such claim or litigation,
shall be approved by the Indemnified Party (whose approval shall not
unreasonably be withheld), and the Indemnified Party may participate in such
defense at such party's expense, and provided further that the failure of any
Indemnified Party to give notice as provided herein shall not relieve the
Indemnifying Party of its
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<PAGE> 6
obligations under this Section 1 unless the failure to give such notice is
materially prejudicial to an Indemnifying Party's ability to defend such action
and provided further, that the Indemnifying Party shall not assume the defense
for matters as to which there is a conflict of interest or separate and
different defenses. No Indemnifying Party, in the defense of any such claim or
litigation, shall, except with the consent of each Indemnified Party, consent to
entry of any judgment or enter into any settlement which does not include as an
unconditional term thereof the giving by the claimant or plaintiff to such
Indemnified Party of a release from all liability in respect to such claim or
litigation.
1.11 INFORMATION BY HOLDER. The Holder or Holders of Registrable
Securities included in any registration shall furnish to the Company such
information regarding such Holder or Holders, the Registrable Securities held by
them and the distribution proposed by such Holder or Holders as the Company may
request in writing and as shall be required in connection with any registration,
qualification or compliance referred to in this Section 1.
1.12 RULE 144 REPORTING. With a view to making available the benefits
of certain rules and regulations of the Commission which may at any time permit
the sale of the Restricted Securities to the public without registration, after
such time as a public market exists for the Common Stock of the Company, the
Company agrees to use its best efforts to:
(a) Make and keep public information available, as those terms
are understood and defined in Rule 144 under the Securities Act, at all times
after the effective date that the Company becomes subject to the reporting
requirements of the Securities Act or the Exchange Act;
(b) Use its best efforts to file with the Commission in a timely
manner all reports and other documents required of the Company under the
Securities Act and the Exchange Act (at any time after it has become subject to
such reporting requirements); and
(c) So long as a Holder owns any Restricted Securities to furnish
to the Holder forthwith upon request a written statement by the Company as to
its compliance with the reporting requirements of said Rule 144, and of the
Securities Act and the Exchange Act, a copy of the most recent annual or
quarterly report of the Company, and such other reports and documents of the
Company and other information in the possession of or reasonably obtainable by
the Company as the Holder may reasonably request in availing itself of any rule
or regulation of the Commission allowing the Holder to sell any such securities
without registration.
1.13 TRANSFER OF REGISTRATION RIGHTS. The rights to cause the Company
to register securities granted Holders under Section 1.5 may be assigned to a
transferee or assignee reasonably acceptable to the Company which acquires at
least 100,000 shares of Registrable Securities in connection with any transfer
or assignment of Registrable Securities by the Holders.
1.14 STANDOFF AGREEMENT. In connection with any public offering of the
Company's securities, the Holder agrees, upon request of the Company or the
underwriters managing any underwritten offering of the Company's securities, not
to sell, make any short sale of, loan, grant any option for the purchase of, or
otherwise dispose of any Registrable Securities (other than those included in
the registration) without the prior written consent of the Company or such
underwriters, as the case may be, for such period of time (not to exceed one
hundred eighty (180) days) from the
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effective date of such registration as may be requested by the underwriters,
provided that the officers and directors of the Company who own stock of the
Company and each holder representing at least 1% ownership of the Company's
outstanding Common Stock also agrees to such restrictions.
1.15 TERMINATION OF REGISTRATION RIGHTS. The registration rights
granted pursuant to Section 1 shall terminate as to each Holder at such time as
a public market for the Company's Common Stock exists and all Registrable
Securities held by such Holder may, in the opinion of counsel to the Company
(which opinion shall be addressed and rendered to Holder), be sold pursuant to
Rule 144(k).
SECTION 2
MISCELLANEOUS
2.1 GOVERNING LAW. This Agreement shall be governed in all respects
by the internal laws of the State of California.
2.2 SURVIVAL. The covenants and agreements made herein shall survive
the closing of the transactions contemplated hereby.
2.3 SUCCESSORS AND ASSIGNS. Except as otherwise provided herein, the
provisions hereof shall inure to the benefit of, and be binding upon, the
successors, assigns, heirs, executors and administrators of the parties hereto.
2.4 ENTIRE AGREEMENT; AMENDMENT. This Agreement and the Purchase
Agreement constitute the full and entire understanding and agreement between the
parties with regard to the subjects hereof and thereof, and no party shall be
liable or bound to any other party in any manner by any warranties,
representations or covenants except as specifically set forth herein or therein.
Except as expressly provided herein, neither this Agreement nor any term hereof
may be amended, waived, discharged or terminated other than by a written
instrument signed by the party against whom enforcement of any such amendment,
waiver, discharge or termination is sought; provided, however, that holders of a
majority of the Registrable Securities may, with the Company's prior written
consent, waive, modify or amend on behalf of all holders, any provisions hereof.
2.5 NOTICES, ETC. All notices and other communications required or
permitted hereunder shall be in writing and shall be mailed by registered or
certified mail, postage prepaid, or otherwise delivered by hand or by messenger,
addressed (a) if to a Holder, at such address as such Holder shall have
furnished the Company in writing, or, until any such holder so furnishes an
address to the Company, then to and at the address of the last Holder who has so
furnished an address to the Company, or (b) if to the Company, one copy should
be sent to its address set forth on the cover page of this Agreement and
addressed to the attention of the President, or at such other address as the
Company shall have furnished to the Holders.
Each such notice or other communication shall for all purposes of this
Agreement be treated as effective or having been given when delivered if
delivered personally, or, if sent by mail, at the
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earlier of its receipt or 72 hours after the same has been deposited in a
regularly maintained receptacle for the deposit of the United States mail,
addressed and mailed as aforesaid.
2.6 DELAYS OR OMISSIONS. Except as expressly provided herein, no
delay or omission to exercise any right, power or remedy accruing to any party
to this Agreement upon any breach or default of any other party under this
Agreement, shall impair any such right, power or remedy of such nondefaulting
party nor shall it be construed to be a waiver of any such breach or default, or
an acquiescence therein, or of or in any similar breach or default thereafter
occurring; nor shall any waiver of any single breach or default be deemed a
waiver of any other breach or default theretofore or thereafter occurring. Any
waiver, permit, consent or approval of any kind or character on the part of any
party of any breach or default under this Agreement, or any waiver on the part
of any holder of any provisions or conditions of this Agreement, must be in
writing and shall be effective only to the extent specifically set forth in such
writing. All remedies, either under this Agreement or by law or otherwise
afforded to any party to this Agreement, shall be cumulative and not
alternative.
2.7 COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be enforceable against the parties actually
executing such counterparts, and all of which together shall constitute one
instrument.
2.8 SEVERABILITY. In the event that any provision of this Agreement
becomes or is declared by a court of competent jurisdiction to be illegal,
unenforceable or void, this Agreement shall continue in full force and effect
without said provision; provided that no such severability shall be effective if
it materially changes the economic benefit of this Agreement to any party.
2.9 TITLES AND SUBTITLES. The titles and subtitles used in this
Agreement are used for convenience only and are not considered in construing or
interpreting this Agreement.
[SIGNATURE PAGE(s) FOLLOW(s)]
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<PAGE> 9
The foregoing Agreement is hereby executed as of the date first
above written.
"COMPANY"
CELERITEK, INC.
a California Corporation
By:
-------------------------------------
Tamer Husseini
Chief Executive Officer
"PURCHASER"
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
[SIGNATURE PAGE TO REGISTRATION RIGHTS AGREEMENT]
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SCHEDULE OF PARTIES TO REGISTRATION RIGHTS AGREEMENT
<TABLE>
<CAPTION>
Party Number of Registrable Shares
<S> <C>
Kahn Capital Management L.P. 545,000
Brian Kahn 69,000
Bricoleur Partners I L.P. 10,500
Bricoleur Partners II L.P. 170,300
Aventine 9,200
Lyxor Master Fund Channel Islands 10,000
Gruber & McBaine Int'l 16,000
Jon D. Gruber 5,000
Thomas O. Lloyd-Butler 1,000
Lagunitas Partners L.P. 28,000
Gottardo Bank 99,999
John Galt Fund L.P. 69,444
John Galt Offshore Fund 3,611
Zurich HFR Nmaster Hedge Fund Index LTD 7,500
Asset Management Holding Co 19,444
Schottenfeld Associates 150,000
Puglisi Capital Partners, L.P. 50,000
Snorkel Bay & Co 150,000
Snail Sand & Co 47,000
J B Were Global Small Companies Fund 7,000
NZFunds Global Small Companies Trust 27,000
James Sloman Jr. 5,000
Totals 1,499,998
</TABLE>
<PAGE> 1
EXHIBIT 5.1
Wilson Sonsini Goodrich & Rosati
Professional Corporation
650 Page Mill Road
Palo Alto, California 94304
February 24, 2000
Celeritek, Inc.
3236 Scott Boulevard
SANTA CLARA, CALIFORNIA 95054
RE: Registration Statement on Form S-3
Ladies and Gentlemen:
We have examined the registration statement on Form S-3 to be filed by
you with the Securities and Exchange Commission on or about February 24, 2000
(the "Registration Statement"), in connection with the registration under the
Securities Act of 1933, of 1,499,998 shares of Common Stock, to be sold by
certain stockholders listed in the Registration Statement. As your counsel, we
have examined the transactions taken and proposed to be taken in connection with
the sale of such shares by such stockholders in the manner set forth in the
Registration Statement.
It is our opinion that such shares, if sold by such stockholders in the
manner set forth in the Registration Statement, will be legally and validly
issued, fully paid and nonassessable.
We consent to the use of this opinion as an exhibit to the Registration
Statement, and further consent to the use of our name wherever appearing in the
Registration Statement, including the Prospectus constituting a part thereof,
and any amendment thereto.
Very truly yours,
/s/ WILSON SONSINI GOODRICH & ROSATI
Wilson Sonsini Goodrich & Rosati
Professional Corporation
<PAGE> 1
EXHIBIT 23.1
CONSENT OF ERNST & YOUNG LLP, INDEPENDENT AUDITORS
We consent to the reference to our firm under the caption "Experts" in
the Registration Statement (Form S-3) and related prospectus of Celeritek, Inc.
for the registration of 1,499,998 shares of its common stock and to the
incorporation by reference therein of our report dated April 23, 1999, with
respect to the consolidated financial statements and schedule of Celeritek, Inc.
included in its Annual Report (Form 10-K) for the year ended March 31, 1999,
filed with the Securities and Exchange Commission.
/s/ Ernst & Young LLP
San Jose, California
February 24, 2000
