EXHIBIT 4.11
REGISTRATION RIGHTS AGREEMENT
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This Registration Rights Agreement (this "Agreement") is made and
entered into as of February 24, 2000 by and among PC-Tel, Inc., a Delaware
corporation (the "Company"), Xxxxxxx X. Xxxxx, an individual, and Xxxxxx X.
Xxxxxx, an individual, (collectively, the "Stockholders").
RECITALS
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WHEREAS, the Company, the Stockholders, Voyager Technologies, Inc., a
California corporation and VT Acquisition Corp., a Delaware corporation and
wholly-owned subsidiary of the Company, are parties to that certain Agreement
and Plan of Reorganization (the "Reorganization Agreement") dated as of February
23, 2000;
WHEREAS, in order to induce the Company to enter into the
Reorganization Agreement, and to induce the Stockholders to accept the Company's
Common Stock pursuant to the Reorganization Agreement, the Stockholders and the
Company hereby agree that this Agreement shall govern the rights of the
Stockholders to cause the Company to register shares of Common Stock held by the
Stockholders, and certain other matters contained herein.
NOW, THEREFORE, in consideration of the premises, covenants, and conditions
set forth herein, the parties hereto hereby agree as follows:
1. REGISTRATION RIGHTS. The Company covenants and agrees as, follows:
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1.1 Certain Definitions. As used in this Agreement, the following terms
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shall have the following respective meanings:
(a) "Commission" shall mean the Securities and Exchange Commission or
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any successor agency.
(b) "Exchange Act" shall mean the Securities Exchange Act of 1934, as
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amended.
(c) "Form S-3" shall mean such form under the Securities Act as in
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effect on the date hereof or any registration form under the Securities Act
subsequently adopted by the Commission that permits inclusion or incorporation
of substantial information by reference to other documents filed by the Company
with the Commission.
(d) "Holder" shall mean any Stockholder who holds Registrable
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Securities and any holder of Registrable Securities to whom the registration
rights conferred by this Agreement have been transferred in compliance with
Section 1.8 hereof.
(e) "Restricted Securities" shall mean the securities of the Company
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required to bear or bearing a legend restricting transfer of such securities in
compliance with the Securities Act.
(f) "Registrable Securities" shall mean (i) 124,438 shares of the
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Company's Common Stock held by Xx. Xxxxx and issued pursuant to the
Reorganization Agreement,
(ii) 28,209 shares of the Company's Common Stock held by Xx. Xxxxxx and issued
pursuant to the Reorganization Agreement, and (iii) any Company Common Stock
issued as a dividend or other distribution with respect to or in exchange for or
in replacement of the shares referenced in (i) and (ii); provided, however, that
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any shares described in clauses (i) through (iii) above which have been resold
to the public shall cease to be Registrable Securities upon such resale.
(g) The terms "register," "registered" and "registration" shall 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.
(h) "Rule 144" shall mean Rule 144 as promulgated by the Commission
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under the Securities Act, as such rules may be amended from time to time, or any
similar successor rule that may be promulgated by the Commission.
(i) "Rule 145" shall mean Rule 145 as promulgated by the Commission
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under the Securities Act, as such rule may be amended from time to time, or any
similar successor rule that may be promulgated by the commission.
(j) "Securities Act" shall mean the Securities Act of 1933, as
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amended, or any similar successor federal statute and the rules and regulations
thereunder, all as the same shall be in effect from time to time, corresponding
to such act.
1.2 Company Registration.
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(a) If prior to October 19, 2000, the Company shall determine to
register any of its securities either for its own account or the account of a
security holder or holders, other than a registration relating solely to
employee benefit plans, or a registration relating solely to a transaction
pursuant to Rule 145 of the Commission, or a registration on any registration
form which does not permit secondary sales, the Company will promptly give to
each Holder written notice thereof and use its best efforts to include in such
registration (and any related qualification under blue sky laws or other
compliance), except as set forth in Section 1.2(b) below, and in any
underwriting involved therein, all the Registrable Securities specified in a
written request or requests, made by any Holder within 15 days after receipt of
such written notice from the Company except as set forth in Section 1.2(b)
below. Such written request may specify all or a part of the Registrable
Securities owned by Xx. Xxxxxx and up to 77,426 of the Registrable Securities
owned by Xx. Xxxxx; provided, however, that the Company's obligation under this
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Section 1.2 shall terminate upon the earlier to occur of (i) October 19, 2000,
or (ii) after the Company has effected one (1) such registration pursuant to
which the Holders have been provided with the opportunity to register their
Registrable Securities under this Section 1.2, such registrations have been
declared or ordered effective and the securities offered pursuant to such
registrations have been sold.
(b) Underwriting. The right of any Holder of Registrable Securities to
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include Registrable Securities in a registration pursuant to this Section 1.2
involving an underwritten public offering shall be conditioned upon the
inclusion of such Registrable Securities in the underwriting to the extent
provided herein. Notwithstanding any other provision of this Section 1, if the
managing underwriter or underwriters conclude in their sole discretion that the
total amount of securities which the Company and any holders of securities
having registration rights
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intends to include in such offering is such as to materially and adversely
affect or jeopardize the offering, then the underwriter may (subject to the
allocation priority set forth below) exclude from such registration and
underwriting some or all of the Registrable Securities requested to be included.
In such event, the Company shall so advise all Holders of Restricted Securities
requesting registration, and the number of shares of Registrable Securities that
may be included in the registration and underwriting shall be allocated among
the Holders of Registrable Securities in proportion to the respective amounts of
Registrable Securities held by them and, if a further limitation on the number
of shares is required, the securities of the Company held by Holders of
Registrable Securities shall be excluded from such registration. If any Holder
of Registrable Securities requesting registration disapproves of the terms of
any such underwriting, such Holder may elect to withdraw therefrom by written
notice to the Company and the underwriter. Any Registrable Securities excluded
or withdrawn from such underwriting shall be withdrawn from such registration.
If by the withdrawal of such Registrable securities a greater number of shares
of Registrable Securities held by other Holders of Registrable Securities may be
included in such registration (up to the maximum of any limitation imposed by
the underwriter), then the Company shall offer to all Holders of Registrable
Securities who have included Registrable Securities in the registration the
right to include additional Registrable securities in the same proportion used
in determining the limitation imposed by the provisions of this Section 1.2(b).
(c) Expenses of Company Registration. All expenses incurred in
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connection with any registrations, filings or qualifications pursuant to Section
1.2 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, expenses of any regular or special
audits incident to or required by any such registration shall be borne by the
Company; provided, however, that the Company shall not be required to pay
underwriting discounts and commissions applicable to the sale of Registrable
Securities or fees and disbursements of counsel for any Holder (other than the
fees and disbursements of counsel included above).
1.3 Form S-3 Registration. In case the Company shall receive from any
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Holder or Holders a written request or request that the Company effect a
registration on Form S-3 and any related qualification or compliance with
respect to all or a part of the Registrable Securities owned by such Holder or
Holders, the Company will:
(a) promptly give written notice of the proposed registration, and any
related qualification or compliance, to all other Holders;
(b) as soon as practicable, effect such registration and all such
qualifications and compliances as may be so requested and as would permit or
facilitate the sale and distribution of all of such Holder's or Holders'
Registrable Securities, together with all of the Registrable Securities of any
other Holder or Holders joining in such request as are specified in a written
request given within 15 days after receipt of such written notice from the
Company; provided, however, that the Company shall not be obligated to effect
any such registration, qualification or compliance, pursuant to this section
1.3: (i) if Form S-3 is not available for such offering by the Holders; (ii) if
the Holders, together with the holders of any other securities of the Company
entitled to inclusion in such registration, propose to sell Registrable
Securities and such other securities (if any) at an aggregate price to the
public (net of any underwriters' discounts or commissions) of less than
$1,000,000; (iii) if the Company shall furnish to the
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Holders a certificate signed by the President of the Company stating that in the
good faith judgment of the Board of Directors of the Company, it would be
seriously detrimental to the Company and its stockholders for such Form S-3
Registration to be effected at such time, in which event the Company shall have
the right to defer the filing of the Form S-3 registration statement for a
period of not more than ninety (90) days after receipt of the request of the
Holder or Holders under this Section 1.3; or (iv) in any particular jurisdiction
in which the Company would be required to qualify to do business or to execute a
general consent to service of process in effecting such registration,
qualification or compliance; and
(c) file a registration statement covering the Registrable Securities
and other securities so requested to be registered as soon as practicable after
receipt of the request or requests of the Holders.
All expenses incurred in connection with a registration requested pursuant to
Section 1.3, including (without limitation) all registration, filing,
qualification, printer's and accounting fees and the reasonable fees and
disbursements of one (1) counsel for the selling Holder or Holders not to exceed
$20,000 and counsel for the Company, but excluding any underwriters' discounts
or commissions associated with Registrable Securities, shall be borne by the
Company; provided, however, that the Company shall not be required to pay for
any expenses of any registration proceeding begun pursuant to Section 1.3 if the
registration request is subsequently withdrawn at the request of the Holders of
a majority of the Registrable Securities to be registered (in which case all
participating Holders shall bear such expenses), unless the Holders of a
majority of the Registrable Securities agree to forfeit their right to the
demand registration pursuant to this Section 1.3.
1.4 Obligations of the Company. In the case of each registration
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effected by the Company pursuant to this Section 1, the Company will advise each
Holder of Registrable Securities in writing as to the initiation of such
registration and as to the completion thereof, and the company will as
expeditiously as reasonably possible:
(a) prepare and file with the Commission a registration statement
with respect to such shares and use its best efforts to cause such registration
statement to become effective, and, upon the request of the Holders of a
majority of the Registrable Securities registered thereunder, keep such
registration statement effective for up to ninety (90) days;
(b) 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 comply with the provisions of the Securities
Act with respect to the disposition of all securities covered by such
registration statement;
(c) furnish such number of prospectuses and other documents incident
thereto as any Holder of Registrable Securities included in such registration
may from time to time reasonably request;
(d) in the event of any underwritten public offering, enter into and
perform its obligations under an underwriting agreement, in usual and customary
form, with the managing underwriter of such offering. Each Holder participating
in such underwriting shall also enter into and perform its obligations under
such an agreement;
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(e) use its best efforts to register and qualify the securities
covered by such registration statement under state securities or blue sky laws
of such jurisdictions as such participating Holders of Registrable securities
and underwriters may reasonably request, except in any jurisdiction in which the
Company would be required to execute a general consent to service of process in
effecting such registration, qualification or compliance, unless the Company is
already subject to service in such jurisdiction;
(f) notify the Holders of Registrable Securities participating in such
registration, promptly after it shall receive notice thereof, of the date and
time when such registration statement and each post-effective amendment thereto
has become effective or a supplement to any prospectus forming a part of such
registration statement has been filed; and
(g) advise such Holders of Registrable securities promptly after it
shall receive notice or obtain knowledge thereof, of the issuance of any stop
order by the Commission suspending the effectiveness of such registration
statement or the initiation or threatening of any proceeding for that purpose
and promptly use its best efforts to prevent the issuance of any stop order or
to obtain its withdrawal if such stop order should be issued.
1.5 Indemnification. In the event any Registrable Securities are included
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in a registration statement under this Section 1:.
(a) To the extent permitted by law, the Company will indemnify and
hold harmless each Holder of Registrable Securities participating in a
registration pursuant to this Section 1, and any underwriter for such Holder and
each person, if any, who controls such underwriter within the meaning of the
Securities Act or the Exchange Act, against any losses, claims, damages, or
liabilities (joint or several) to which they may become subject under the
Securities Act, or the Exchange Act or other federal or state law, insofar as
such losses, claims, damages, or liabilities (or actions in respect thereof)
arise out of or are based upon any of the following statements, omissions or
violations (collectively a "Violation"): (i) any untrue statement or alleged
untrue statement of a material fact contained in such registration statement,
including any preliminary prospectus or final prospectus contained therein or
any amendments or supplements thereto, (ii) the omission or alleged omission to
state therein a material fact required to be stated therein, or necessary to
make the statements therein not misleading, or (iii) any violation or alleged
violation by the Company of the Securities Act, the Exchange Act, any state
securities law, or any rule or regulation promulgated under the Securities Act,
the Exchange Act, or any state securities law; and the Company will pay to each
such Holder, underwriter or controlling person, as incurred, any legal or other
expenses reasonably incurred by them in connection with investigating or
defending any such loss, claim, damage, liability or action; provided, however,
that the indemnity agreement contained in this subsection 1.5(a) shall not apply
to amounts paid in settlement of any such loss, claim, damage, liability, or
action if such settlement is effected without the consent of the Company (which
consent shall not be unreasonably withheld), nor shall the Company be liable in
any such case for any such loss, claim, damage, liability, or action to the
extent that it arises out of or is based upon a Violation that occurs in
reliance upon and in conformity with written information furnished expressly for
use in connection with such registration by any such Holder, underwriter or
controlling person.
(b) Each Holder of Registrable Securities participating in a
registration pursuant to this Section 1 will indemnify and hold harmless the
Company, each of the
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Company's directors, officers, employees and agents, each person, if any, who
controls the Company within the meaning of the Securities Act, any underwriter,
any controlling person of any such underwriter and any other Holder selling
securities in such registration statement, against any losses, claims, damages,
or liabilities (joint or several) to which any of the foregoing persons may
become subject, under the Securities Act, the Exchange Act, or other federal or
state law, insofar as such losses, claims, damages, or liabilities (or actions
in respect thereto) arise out of or are based upon any Violation, in each case
to the extent (and only to the extent) that such Violation occurs in reliance
upon and in conformity with written information furnished by such Holder
expressly for use in connection with such registration; and each such Holder
will pay, as incurred, any legal or other expenses reasonably incurred by any
person intended to be indemnified pursuant to his subsection 1.5(b), in
connection with investigating or defending any such loss, claim, damage,
liability, or action; provided, however, that the indemnity agreement contained
in this subsection 1.5(b) shall not apply to amounts paid in settlement of any
such loss, claim, damage, liability or action if such settlement is effected
without the consent of the Holder, which consent shall not be unreasonably
withheld; provided, that, in no event shall any indemnity under this subsection
1.5(b) exceed the net proceeds from the offering received by such Holder.
(c) Promptly after receipt by an indemnified party under this Section
1.5 of notice of the commencement of any action (including any governmental
action), such indemnified party will, if a claim in respect thereof is to be
made against any indemnifying party under this Section 1.5, deliver to the
indemnifying party a written notice of the commencement thereof and the
indemnifying party shall have the right to participate in, and, to the extent
the indemnifying party so desires, jointly with any other indemnifying party
similarly noticed, to assume the defense thereof with counsel mutually
satisfactory to the parties; provided, however, that any indemnified party
(together with all other indemnified parties that may be represented without
conflict by one counsel) shall have the right to retain one separate counsel,
with the fees and expenses to be paid by the indemnifying party, if
representation of such indemnified party by the counsel retained by the
indemnifying party would be inappropriate due to actual or potential differing
interests between such indemnified party and any other party represented by such
counsel in such proceeding. The failure to deliver written notice to the
indemnifying party of the commencement of any such action, if materially
prejudicial to its ability to defend such action, shall relieve such
indemnifying party of any liability to the indemnified party under this Section
1.5, but the omission so to deliver written notice to the indemnifying party
will not relieve it of any liability that it may have to any indemnified party
otherwise than under this Section 1.5.
(d) The obligations of the Company and Holders under this Section 1.5
shall survive the completion of any offering of Registrable Securities in a
registration statement under this Section 1.
1.6 Information by Holder. Each Holder of Registrable Securities shall
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furnish to the Company such information regarding such Holder and the
distribution proposed by such Holder as the Company may reasonably request in
writing and as shall be reasonably required in connection with any registration,
qualification or compliance referred to in this section 1.
1.7 Reports Under Securities Exchange Act of 1934. With a view to making
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available to the Holders the benefits of Rule 144 promulgated under the Act and
any other rule
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or regulation of the Commission that may at any time permit a Holder to sell
securities of the Company to the public without registration or pursuant to a
registration on Form S-3, the Company agrees to use its best efforts:
(a) make and keep public information available, as those terms are
understood and defined in Rule 144 promulgated under the Securities Act, at all
times;
(b) 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;
and
(c) furnish to the Holders forthwith upon written request (i) a
written statement by the Company as to its compliance with the reporting
requirements of Commission Rule 144, the Securities Act and the Exchange Act,
(ii) a copy of the most recent annual or quarterly report of the Company, and
such other reports and documents so filed by the Company, and (iii) such other
information as may be reasonably requested in availing any Holder of any rule or
regulation of the Commission that permits the selling of any such securities
without registration or pursuant to such form.
1.8 Transfer or Assignment of Registration Rights. The rights to cause the
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Company to register securities granted to a Holder by the Company under this
Section 1 may be transferred or assigned by a Holder only to a transferee or
assignee who acquires all of the Registrable Securities previously held by such
Holder; provided that the company is given written notice at the time of or
within a reasonable time after said transfer or assignment, stating the name and
address of said transferee or assignee and identifying the securities with
respect to which such registration rights are being transferred or assigned, and
provided further that the transferee or assignee of such rights assumes the
obligations of such Holder under this Section 1.
1.9 "Market Stand-Off" Agreement If requested by the Company and an
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underwriter of common stock (or other securities) of the Company, a Holder shall
not sell or otherwise transfer or dispose of any common stock (or other
securities) of the Company held by such Holder (other than those included in the
registration) during the one hundred eighty (180) day period, or such shorter
period specified or agreed to by the representative of the underwriters and the
Company, following the effective date of any registration statements of the
Company filed under the Securities Act; provided, however, that all Holders and
officers and directors of the Company enter into similar agreements. The Company
may impose stop-transfer instructions with respect to the shares (or securities)
subject to the foregoing restriction until the end of said one hundred eighty
(180) day period or such other period as is agreed to by the representatives.
1.10 Delay of Registration. No Holder shall have any right to take any
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action to restrain, enjoin, or otherwise delay any registration as the result of
any controversy that might arise with respect to the interpretation or
implementation of this Section 1.
1.11 Termination of Registration Rights. No Holder shall be entitled to
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exercise any right provided for in Section 1 above after the later of (a)
February 24, 2001 or (b) at such time at which all Registrable Securities held
by such Holder can be sold in any three month period without registration in
compliance with Rule 144 of the Securities Act.
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2. MISCELLANEOUS
2.1 Governing Law. This Agreement shall be governed in all respects by the
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laws of the State of California, as if entered into by and between California
residents exclusively for performance entirely within California.
2.2 Successors and Assigns. Except as otherwise expressly provided herein,
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the provisions hereof shall inure to the benefit of, and be binding upon, the
successors, assigns, heirs, executors and administrators of the parties hereto.
2.3 Entire Agreement; Amendment; Waiver. This Agreement (including the
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Exhibits hereto) constitutes the full and entire understanding and agreement
between the parties with regard to the subjects hereof and thereof. Neither this
Agreement nor any term hereof may be amended, waived, discharged or terminated,
except by a written instrument signed by the Company and the Holders.
2.4 Notices. All notices, requests, demands, claims, and other
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communications hereunder will be in writing. Any notice, request, demand, claim,
or other communication hereunder shall be deemed duly given (i) upon
confirmation of facsimile, (ii) when sent by overnight delivery and (iii) when
mailed by registered or certified mail return receipt requested and postage
prepaid at the following address:
If to the Holders: Xxxxxxx X. Xxxxx
------------------ Xxxxxx X. Xxxxxx
c/o Voyager Technologies, Inc.
000 X. Xxxxxxx Xxxxxx
Xxxxxx Xxxx, XX 00000
Tel: (000) 000-0000
Fax: (000) 000-0000
Copy to: Xxxxx & Xxxxxx
------- 000 Xxxxxxxxxx Xxxxxx, #000
Xxxx Xxxx, XX 00000
Tel: (000) 000-0000
Attention: Xxxx Xxxxxx, Esq.
If to the Company: PC-Tel, Inc.
----------------- 0000 Xxxxxxxxxx Xxxxxx
Xxxxxxxx, XX 00000
Tel: (000) 000-0000
Fax: (000) 000-0000
Attention: Chief Financial Officer
Copy to: Xxxxx & Xxxxxx LLP
------- Xxxx Xxxx Xxxxx
Xxxxx 0000
Xxxxxx, XX 00000
Tel: (000) 000-0000
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Fax: (000) 000-0000
Attention: Xxxxxxx XxXxxxx, Esq.
Any party may sent any notice, request, demand, claim, or other communication
hereunder to the intended recipient at the address set forth above using any
other means (including personal delivery, expedited courier, messenger service,
telecopy, telex, ordinary mail, or electronic mail), but no such notice,
request, demand, claim, or other communication shall be deemed to have been duly
given unless and until it actually is received by the intended recipient. Any
party may change the address to which notices, requests, demands, claims, and
other communications hereunder are to be delivered by giving the other party
notice in the manner herein set forth.
2.5 Delays or Omissions. No delay or omission to exercise any right, power
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or remedy accruing to any Holder, upon any breach or default of the Company
under this Agreement shall impair any such right, power or remedy of such Holder
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
Holder 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 made 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 Holder, shall be cumulative and not alternative.
2.6 Rights; severability. Unless otherwise expressly provided herein, a
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Holder's rights hereunder are several rights, not rights jointly held with any
of the other Holders. In case any provision of this Agreement shall be held to
be invalid, illegal or unenforceable under applicable law, such provision shall
be excluded from this Agreement and the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
2.7 Information Confidential. Each Holder acknowledges that the information
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received by them pursuant hereto may be confidential and for its use only, and
it will not use such confidential information in violation of the Exchange Act
or reproduce, disclose or disseminate such information to any other person
(other than its employees or agents having a need to know the contents of such
information, and its attorneys), except in connection with the exercise of
rights under this Agreement, unless the Company has made such information
available to the public generally or such Holder is required to disclose such
information by a governmental body.
2.8 Titles and Subtitles. The titles of the paragraphs and subparagraphs of
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this Agreement are for convenience of reference only and are not to be
considered in construing this Agreement.
2.9 Counterparts. This Agreement may be executed in any number of
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counterparts, each of which shall be an original, but all of which together
shall constitute one instrument.
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IN WITNESS WHEREOF, the parties hereto have executed this Registration
Rights Agreement effective as of the day and year first above written.
PC-TEL, INC.
By: /s/ Xxxxx Xxxx
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Title: Chairman and CEO
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STOCKHOLDERS:
/s/ Xxxxxxx X. Xxxxx
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Xxxxxxx X. Xxxxx
/s/ Xxxxxx X. Xxxxxx
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Xxxxxx X. Xxxxxx
S-1
