Exhibit 4.4
Second Amendment to
Registration Rights Agreement
This Second Amendment ("Agreement") is made as of this 22nd day of
February, 2001, to the Registration Rights Agreement entered into on or about
March 30, 1995, by and among Panja Inc., a Texas corporation f/k/a AMX
Corporation (the "Company") and various other parties and which was amended on
September 12, 1995 (the "Registration Rights Agreement"). Capitalized terms used
herein and not otherwise defined shall have the meaning set forth in the
Registration Rights Agreement.
WHEREAS, J. Xxxxxx Xxxxx, Xxxxx X. Xxxxxx and Xxxxx X. York (collectively,
the "Existing Shareholders") are the only parties to the Registration Rights
Agreement that still hold Registrable Shares;
WHEREAS, Section 13(b) of the Registration Rights Agreement provides that
the Agreement may be modified only by a writing signed by or on behalf of the
Company and by Holders of a majority in number of the Registrable Securities
then outstanding;
WHEREAS, the Existing Shareholders own a majority in number of the
Registrable Securities outstanding on the date hereof;
WHEREAS, it is proposed that the Company issue shares of its Common Stock,
par value $0.01 per share (the "Common Stock"), valued at up to $5,500,000 to
one or more purchasers pursuant to the provisions of one or more Stock Purchase
Agreements to be entered into between the Company and such purchasers (the
"Purchase Agreements");
WHEREAS, Xxxxx X. Xxxxxx has requested and the Company has agreed to grant
Xx. Xxxxxx registration rights that may conflict with those of the Existing
Shareholders pursuant to a Registration Rights Agreement made of even date
herewith between Xx. Xxxxxx and the Company (the "New Registration Rights");
WHEREAS, the Existing Shareholders desire to amend the Registration Rights
Agreement so that the registration rights granted thereunder will not conflict
with the New Registration Rights and the Company agrees to such amendment.
NOW THEREFORE, in consideration of the foregoing promises and the
agreements set forth below, the parties hereto agree as follows:
1. Section 1 of the Registration Rights Agreement shall be amended to
include the following definitions:
"Existing Shareholders" means J. Xxxxxx Xxxxx, Xxxxx X. Xxxxxx and
Xxxxx X. York.
"Intel" means Intel Corporation, a Delaware corporation.
"Intel Agreement" means the Securities Purchase and Investor Rights
Agreement between Intel and the Company dated as of December 15, 1999.
"Person" or "persons" means any individual, corporation,
partnership, limited liability company, joint venture, association, joint-
stock company, trust, unincorporated organization or other entity or
government or other agency or political subdivision thereof.
"SEC" means the Securities and Exchange Commission.
"Selling Holder" means any Holder who is selling Registrable
Securities pursuant to a public offering registered hereunder.
"Underwriter" means a securities dealer who purchases any
Registrable Securities as principal and not as part of such dealer's
market-making activities.
2. Section 3 of the Registration Rights Agreement, including
subparagraphs (a) and (b) and any subsections thereof, shall be deleted in its
entirety and replaced with the following:
"3. Piggyback Registrations.
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(a) After the date hereof, if the Company proposes to file a
registration statement under the Act with respect to an offering of Common
Stock for its own account or for the account of another Person (other than
a registration statement on Form S-4 or S-8 (or any substitute form or
rule, respectively, that may be adopted by the SEC)), the Company shall
give written notice of such proposed filing to the Holders at the address
set forth in the share register of the Company as soon as reasonably
practicable (but in no event less than 15 days before the anticipated
filing date), undertaking to provide each Holder the opportunity to
register on the same terms and conditions such number of shares of
Registrable Securities as such Holder may request (a "Piggyback
Registration"). Each Holder will have seven business days after receipt of
any such notice to notify the Company as to whether it wishes to
participate in a Piggyback Registration (which notice shall not be deemed
to be a requested registration under Section 2); provided that should a
Holder fail to provide timely notice to the Company, such Holder will
forfeit any rights to participate in the Piggyback Registration with
respect to such proposed offering. If the Company or the Person for whose
account such offering is being made shall determine in its sole discretion
not to register or to delay the proposed offering, the Company may, at its
election, provide written notice of such determination to the Holders and
(i) in the case of a determination not to effect the proposed offering,
shall thereupon be relieved of the obligation to register such Registrable
Securities in connection therewith, and (ii) in the case of a determination
to delay a proposed offering, shall thereupon be permitted to delay
registering such Registrable Securities for the same period as the delay in
respect of the proposed offering. As between the Company or any other
Person for whose account any such offering is being made, on one hand, and
the Selling Holders, on the other hand, the Company or such other Person,
as
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the case may be, shall be entitled to select the Underwriters in connection
with any Piggyback Registration.
(b) If the Registrable Securities requested to be included in the
Piggyback Registration by any Holder differ from the type of securities
proposed to be registered by the Company and the managing Underwriter
advises the Company that due to such differences the inclusion of such
Registrable Securities would materially and adversely affect the price of
the offering (a "Material Adverse Effect"), then (i) the number of such
Holders' Registrable Securities to be included in the Piggyback
Registration shall be reduced to an amount which, in the opinion of the
managing Underwriter, would eliminate such Material Adverse Effect or (ii)
if no such reduction would, in the opinion of the managing Underwriter,
eliminate such Material Adverse Effect, then the Company shall have the
right to exclude all such Registrable Securities from such Piggyback
Registration, provided that no other securities of such type are included
and offered for the account of any other Person in such Piggyback
Registration. Any partial reduction in number of Registrable Securities of
any Holder to be included in the Piggyback Registration pursuant to clause
(i) of the immediately preceding sentence shall be effected pro rata based
on the ratio which such Holder's requested shares bears to the total number
of shares requested to be included in such Piggyback Registration by all
Persons other than the Company who have the contractual right to request
that their shares be included in such registration statement and who have
requested that their shares be included. If the Registrable Securities
requested to be included in the registration statement are of the same type
as the securities being registered by the Company (whether such
registration is initiated by the Company or another security holder) and
the managing Underwriter advises the Company that the inclusion of such
Registrable Securities would cause a Material Adverse Effect, the Company
will be obligated to include in such registration statement, as to each
Holder and any other Person or Persons having a contractual right to
request their shares be included in such registration only a portion of the
shares such Holder and such other Person or Persons have requested be
registered equal to the ratio which each such Holder's and such other
Person's requested shares bears to the total number of shares requested to
be included in such registration statement by all Holders and such other
Person or Persons (other than the Person or Persons initiating such
registration request) having a contractual right to request that their
shares be included in such registration statement and who have requested
their shares be included. If the Company initiated the registration, then
the Company may include all of its securities in such registration
statement before any such Holder's requested shares are included. If
another security holder initiated the registration, then such initiating
security holder may include all of its securities in such registration
statement before any such Holder's requested shares are included and the
Company may not include any of its securities in such registration
statement unless all Registrable Securities requested to be included in the
registration statement by all Holders are included in such registration
statement. If as a result of the provisions of this Section 3(b) any Holder
shall not be entitled to include all Registrable Securities in a
registration that such Holder has requested to be so included, such Holder
may withdraw such
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Holder's request to include Registrable Securities in such registration
statement prior to its effectiveness. Notwithstanding the foregoing, the
Holders acknowledge that their rights under this Section 3 are subordinate
to the rights of Intel pursuant to Section 7(b)(iii) of the Intel
Agreement. "
3. Section 6 of the Registration Rights Agreement shall be amended to
include the following subparagraph (h):
"(h) The rights of the Existing Shareholders to register securities
that are set forth in Sections 2, 3 and 5 of this Agreement shall expire on
February 28, 2003."
4. The Existing Shareholders constitute, collectively, the holders of
at least a majority of the Registrable Securities outstanding.
5. Except as expressly amended herein, the terms of the Registration
Rights Agreement shall remain in full force and effect.
6. Effective as of the Closing (as defined in the Purchase Agreements),
Xxxxx X. Xxxxxx has waived any and all rights that he has under the Registration
Rights Agreement.
7. In the event that any of the registration rights granted pursuant to
the Registration Rights Agreement are later found to be in conflict with the New
Registration Rights or the registration rights set forth in the Intel Agreement,
the Existing Shareholders agree to execute, acknowledge and deliver to the
Company such other amendments or agreements as the Company may request and do
and cause to be done all acts or things as the Company may request and as may be
required in order to avoid such conflict with the New Registration Rights or the
registration rights set forth in the Intel Agreement; provided, however, any pro
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rata cutback of shares provided in Section 3 of the Registration Rights
Agreement shall not be deemed to be a conflict.
8. This Agreement may be executed in multiple counterparts, each of
which shall be deemed an original for all purposes, and all of which together
shall constitute one and the same instrument. Each such multiple counterpart of
this Agreement may be transmitted via facsimile or other similar electronic
means and executed by one or more of the undersigned, and a facsimile of the
signature of one or more of the undersigned shall be deemed an original
signature for all purposes and have the same force and effect as a manually
signed original. In addition, notwithstanding nothing to the contrary contained
herein, this Agreement shall become effective and binding upon each signatory
hereto at the time counterpart signature pages have been executed by such
signatory and the failure of one or more other signatories to sign this
Agreement shall not affect its effectiveness.
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IN WITNESS WHEREOF, the Company and the Existing Shareholders have executed
this Agreement as of the date first written above.
PANJA INC.
By: /s/ Xxx Xxxxx
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Name: Xxx Xxxxx
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Title: President
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/s/ J. Xxxxxx Xxxxx
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J. Xxxxxx Xxxxx
/s/ Xxxxx X. Xxxxxx
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Xxxxx X. Xxxxxx
/s/ Xxxxx X. York
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Xxxxx X. York
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