EXHIBIT 4.4
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (this "Agreement") is made and entered
into as of November 1, 1997 by and among P-Com, Inc., a Delaware corporation
(the "Company"), and PaineWebber Incorporated, BancAmerica Xxxxxxxxx Xxxxxxxx,
NationsBanc Xxxxxxxxxx Securities, Inc. and Pacific Growth Equities, Inc., as
initial purchasers (the "Initial Purchasers").
The Company proposes to issue and sell to the Initial Purchasers (the
"Initial Placement") $100,000,000 aggregate principal amount (plus up to an
additional $15,000,000 principal amount to cover over-allotments, if any) of its
4 1/4% Convertible Subordinated Notes due 2002 (the "Notes"), pursuant to the
terms of a purchase agreement, dated as of November 5, 1997 (the "Purchase
Agreement"). As an inducement to the Initial Purchasers to enter into the
Purchase Agreement, and in satisfaction of a condition to the Initial
Purchasers' obligations thereunder, the Company agrees with the Initial
Purchasers, (i) for the benefit of the Initial Purchasers and (ii) for the
benefit of the holders from time to time of the Transfer Restricted Securities
(as defined) whose names appear in the register maintained by the Company's
registrar in accordance with the provisions of the Indenture (as defined in
Section 1 hereof) (including the Initial Purchasers) (each of the foregoing a
"Holder," and collectively, the "Holders"), as follows:
1. DEFINITIONS. Capitalized terms used herein without definition shall
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have their respective meanings set forth in the Purchase Agreement. As used in
this Agreement, the following capitalized terms shall have the following
meanings:
"Advice" means the receipt by such Holder of written notice from the
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Company (the "Advice") that the use of the Prospectus may be resumed, and
receipt of copies of any additional or supplemental filings that are
incorporated by reference in the Prospectus.
"Affiliate" of any specified person means any other person which, directly
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or indirectly, is in control of, is controlled by, or is under common control
with, such specified person. For purposes of this definition, control of a
person means the power, direct or indirect, to direct or cause the direction of
the management and policies of such person whether by contract or otherwise; and
the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Business Day" means any day other than a Saturday, a Sunday or a day on
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which banking institutions in the State of New York are not required to be open.
"Closing Date" has the meaning set forth in the Purchase Agreement.
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"Commission" means the Securities and Exchange Commission.
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"Common Stock" means the common stock of the Company.
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"Damages Payment Date" means each regular interest payment date with
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respect to the Notes provided for in the Indenture and the Notes.
"Effectiveness Target Date" has the meaning set forth in Section 3(a)
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hereto.
"Exchange Act" means the Securities Exchange Act of 1934, as amended from
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time to time, and the rules and regulations of the Commission promulgated
thereunder.
"Holder" has the meaning set forth in the preamble hereto.
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"Indenture" means the Indenture dated as of November 1, 1997, between the
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Company and State Street Bank and Trust Company of California, N.A., as trustee,
pursuant to which the Notes are to be issued, as the same may be amended,
modified or supplemented from time to time in accordance with the terms thereof.
"Initial Purchasers" has the meaning set forth in the preamble hereto.
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"Initial Placement" has the meaning set forth in the preamble hereto.
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"Losses" has the meaning set forth in Section 9(d) hereof.
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"Majority Holders" means the Holders of a majority of the aggregate
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principal amount of securities registered under a Shelf Registration Statement
(provided that Holders of Common Stock issued upon conversion of Notes shall be
deemed to be Holders of the aggregate principal amount of Notes from which such
Common Stock was converted).
"Managing Underwriters" means the investment banker or investment bankers
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and manager or managers that shall administer an Underwritten Offering pursuant
to Section 6 hereof of the securities covered by the Shelf Registration
Statement.
"Notes" means the 4 1/4% Convertible Subordinated Notes due 2002 of the
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Company.
"Offering Memorandum" has the meaning set forth in the Purchase Agreement.
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"Person" means any individual, partnership, corporation, limited liability
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company, trust or unincorporated organization, or a government or agency or
political subdivision thereof.
"Prospectus" means the prospectus included in any Shelf Registration
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Statement (including, without limitation, a prospectus that discloses
information previously omitted from a prospectus filed as part of an effective
registration statement in reliance upon Rule 430A under the Securities Act), as
amended or supplemented by any prospectus supplement, with respect to the terms
of the offering of any portion of Transfer Restricted Securities, covered by
such Shelf Registration Statement, and all amendments and supplements to the
Prospectus, including post-effective amendments, and all material incorporated
by reference into such Prospectus.
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"Registration Default" has the meaning set forth in Section 5 hereto.
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"Requisite Information" has the meaning set forth in Section 5(m) hereto.
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"Securities Act" means the Securities Act of 1933, as amended from time to
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time, and the rules and regulations of the Commission promulgated thereunder.
"Shelf Registration Period" has the meaning set forth in Section 3(b)
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hereof.
"Shelf Registration Statement" means a "shelf" registration statement of
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the Company pursuant to the provisions of Section 3 hereof which covers the
Transfer Restricted Securities, on an appropriate form under Rule 415 under the
Securities Act, or any similar rule that may be adopted by the Commission,
amendments and supplements to such registration statement, including post-
effective amendments, in each case including the Prospectus contained therein,
all exhibits thereto and all material incorporated by reference therein.
"Special Counsel" means Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx, Professional
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Corporation, as special counsel to the Holders, or such successor counsel as
shall be specified by the Holders of a majority of Transfer Restricted
Securities.
"Transfer Restricted Securities" means each Note and the Common Stock
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issuable upon conversion thereof until (i) the date on which such Note or the
Common Stock issuable upon conversion thereof has been effectively registered
under the Securities Act and disposed of pursuant to an effective registration
statement, (ii) the date on which such Note or the Common Stock issuable upon
conversion thereof is distributed to the public pursuant to Rule 144 under the
Securities Act (or any similar provision then in effect) or is saleable pursuant
to Rule 144(k) under the Securities Act and all legends thereon relating to
transfer restrictions have been or are capable of being removed, or (iii) the
date on which such Note or the Common Stock issuable upon conversion thereof
ceases to be outstanding.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as amended.
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"Trustee" means the trustee with respect to the Notes under the Indenture.
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"Underwritten Offering" or "Underwritten Registration" means a registration
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in which securities of the Company are sold to one or more underwriters for
reoffering to the public pursuant to Section 6.
2. SECURITIES SUBJECT TO THIS AGREEMENT. The securities entitled to the
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benefits of this Agreement are the Transfer Restricted Securities.
3. SHELF REGISTRATION.
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(a) The Company shall, within 90 days after Closing Date, file with
the Commission and thereafter shall use its best efforts to cause to be declared
effective under the Securities Act by the 180th day after the Closing Date (the
"Effectiveness Target Date"), a Shelf Registration Statement relating
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to the offer and sale of the Transfer Restricted Securities by the Holders from
time to time in accordance with the methods of distribution elected by such
Holders and set forth in such Shelf Registration Statement.
(b) The Company shall use its best efforts to keep the Shelf
Registration Statement continuously effective in order to permit the Prospectus
forming a part thereof to be usable by Holders for a period of two years from
the later of (a) the Closing Date or (b) the last date of original issuance of
the Securities or such shorter period that will terminate when (i) all the
Transfer Restricted Securities covered by the Shelf Registration Statement have
been sold pursuant to the Shelf Registration Statement, or (ii) the date on
which there ceases to be outstanding any Transfer Restricted Securities (in any
such case, such period being called the "Shelf Registration Period"). The
Company shall be deemed not to have used its best efforts to keep the Shelf
Registration Statement effective during the requisite period if it voluntarily
takes any action that would result in Holders of Transfer Restricted Securities
covered thereby not being able to offer and sell such securities during that
period, unless (i) such action is required by applicable law, (ii) the continued
effectiveness of the Shelf Registration Statement would require the Company to
disclose a material financing, acquisition or other corporate transaction, and
the Board of Directors shall have determined in good faith that such disclosure
is not in the best interests of the Company and the holders of its outstanding
Common Stock, or (iii) the Board of Directors shall have determined in good
faith that there is a valid business purpose or reason for such suspension, and
(x), in the case of clause (i) above, the Company thereafter promptly complies
with the requirements of paragraph 5(i) below and (y) the Company complies with
its obligations, if any, to pay Liquidated Damages pursuant to Section 4 hereof.
(c) The Company shall prepare and file with the Commission such
amendments, including post-effective amendments, to the Shelf Registration
Statement as may be necessary to keep such Registration Statement continuously
effective for the applicable time period; cause the related Prospectus to be
supplemented by any required Prospectus supplement and as so supplemented to be
filed pursuant to Rule 424 (or any similar provisions then in force) under the
Securities Act; and comply with the provisions of the Securities Act and the
Exchange Act with respect to the disposition of all securities covered by such
Shelf Registration Statement during the applicable period in accordance with the
intended methods of disposition by the sellers thereof set forth in such Shelf
Registration Statement as so amended or in such Prospectus as so supplemented.
(d) Certain Notices; Suspension of Sales. Each Holder agrees by
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acquisition of such Transfer Restricted Securities that, upon receipt of any
notice from the Company of the happening of any event of the kind described in
Section 5(c)(2)(ii), 5(c)(2)(iii), 5(c)(2)(iv) or 5(c)(2)(v) hereof, such Holder
will forthwith discontinue disposition of such Transfer Restricted Securities
covered by such Registration Statement and Prospectus (other than in
transactions exempt from the registration requirements under the Securities Act)
until such Holder's receipt of the copies of the supplemented or amended
Prospectus contemplated by Section 5(i) hereof, or until Advice by the Company
that the use of the applicable Prospectus may be resumed, and, in either case,
has received copies of any additional or supplemental filings that are
incorporated or deemed to be incorporated by reference in such Prospectus.
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4. LIQUIDATED DAMAGES.
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(a) The Company and the Initial Purchasers agree that the Holders will
suffer damages if the Company fails to fulfill its obligations pursuant to this
Agreement and that it would not be possible to ascertain the extent of such
damages. Accordingly, the Company hereby agrees to pay liquidated damages
("Liquidated Damages") to each Holder under the circumstances and to the extent
set forth below:
(i) the Company fails to file the Shelf Registration Statement
required by Section 3 of this Agreement on or before the date specified for
such filing under Section 3(a) hereof; or
(ii) such Shelf Registration Statement is not declared effective
by the Commission on or prior to the Effectiveness Target Date; or
(iii) the Shelf Registration Statement is declared effective but
thereafter ceases to be continuously effective or usable in connection with
resales of Transfer Restricted Securities during the Shelf Registration
Period for a period of time that shall exceed 90 days in the aggregate in
any period of 365 consecutive days (with no Liquidated Damages being due
for such period of time up to and including 90 days in any period of 365
consecutive days);
(each such event referred to in clauses (a) through (c) above a "Registration
Default"); provided a particular Holder shall not be entitled to receive
Liquidated Damages pursuant to 4(a)(iii) in the event that the Shelf
Registration Statement is not usable by such Holder as a result of the failure
of such Holder to provide Requisite Information with respect to it (unless such
Holder shall have provided such Requisite Information to the Company and the
Company shall have failed to file an appropriate Prospectus supplement pursuant
to Section 5(m) hereof). In the event of any such Registration Default, the
Company shall accrue Liquidated Damages to each Holder during the first 90-day
period immediately in an amount equal to $.05 per week per $1,000 principal
amount of Notes held by such Holder and, if applicable, on an equivalent basis
per share (subject to adjustment in the event of any stock split, stock
combination, stock dividends and the like) of Common Stock constituting Transfer
Restricted Securities held by such Holder for each week or portion thereof that
the Registration Default continues. The weekly rate at which such Liquidated
Damages accrue shall increase by an additional $.05 per $1,000 principal amount
of Notes and, if applicable, an equivalent amount per week per share (subject to
adjustment as set forth above) of Common Stock constituting Transfer Restricted
Securities for each subsequent continuing 90-day period following the occurrence
of such Registration Default until all Registration Defaults have been cured;
provided, however, that Liquidated Damages shall not at any time exceed $.25 per
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week per $1,000 principal amount of Notes or, as applicable, an equivalent
amount per week per share (subject to adjustment as set forth above) of Common
Stock constituting Transfer Restricted Securities. In no event shall the
Company pay Liquidated Damages in excess of such maximum amount set forth in the
preceding sentence, regardless of whether one or multiple Registration Defaults
exist. A Registration Default under clause (a) above shall be cured on the date
that the Shelf Registration Statement is filed with the Commission; a
Registration Default under clause (b) above shall be cured on the date that the
Shelf Registration Statement is declared effective by the Commission; and a
Registration Default under clause
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(c) above shall be cured on the date of the Shelf Registration Statement is
declared effective or usable. All accrued Liquidated Damages will be paid by the
Company on each Damages Payment Date in cash. Such payment will be made to the
Holder(s) of the Global Notes (as defined in the Indenture) by wire transfer of
immediately available funds or by federal funds check and to Holders of Transfer
Restricted Securities represented by Certificated Notes, if any, by wire
transfer to the accounts specified by them or by mailing checks to their
registered addresses if no such accounts have been specified. Following the cure
of all Registration Defaults, the accrual of Liquidated Damages will cease.
(b) The parties hereto agree that the Liquidated Damages provided for
in this Section 4 constitute a reasonable estimate of the damages that may be
incurred by Holders of Transfer Restricted Securities by reason of the failure
of the Shelf Registration Statement to be filed, declared effective or
maintained effective, as the case may be, in accordance with the provisions
hereof.
5. REGISTRATION PROCEDURES. In connection with any Shelf Registration
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Statement, the following provisions shall apply:
(a) The Company shall furnish to the Initial Purchasers, the Holders,
the Managing Underwriters, if any, and their respective counsel, not less than
five Business Days prior to the filing thereof with the Commission, a copy of
any Shelf Registration Statement and each amendment thereof, and each amendment
or supplement, if any, to the Prospectus included therein, and shall use its
best efforts to reflect in each such document, when so filed with the
Commission, such comments as the Initial Purchasers and the Holders or their
counsel may reasonably propose.
(b) The Company shall use its best efforts to ensure that (i) any
Shelf Registration Statement and any amendment thereto and any Prospectus
forming part thereof and any amendment or supplement thereto complies in all
material respects with the Securities Act and the rules and regulations
thereunder, (ii) assuming the Requisite Information provided by Holders is true
and correct, any Shelf Registration Statement and any amendment or supplement
thereto does not, when it becomes effective, contain an untrue statement of a
material fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading and (iii) assuming the
Requisite Information provided by Holders of Transfer Restricted Securities is
true and correct, any Prospectus forming part of any Shelf Registration
Statement, and any amendment or supplement to such Prospectus, does not include
an untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements, in the light of the circumstances
under which they were made, not misleading.
(c) (1) The Company shall advise the Initial Purchasers, the Holders
of Transfer Restricted Securities named in the Shelf Registration Statement and
the Managing Underwriters, if any, and, if requested by the Initial Purchasers,
any such Holder or the Managing Underwriters, if any, confirm such advice in
writing, when a Shelf Registration Statement or any amendment thereto has been
filed with the Commission and when the Shelf Registration Statement or any post-
effective amendment thereto has become effective.
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(2) The Company shall advise the Initial Purchasers, the Holders of
Transfer Restricted Securities named in the Shelf Registration Statement, the
Managing Underwriters, if any, and their respective counsel and, if requested by
any such person, confirm such advice in writing:
(i) of any request by the Commission for amendments or
supplements to the Shelf Registration Statement or the Prospectus included
therein or for additional information;
(ii) of the initiation by the Commission of proceedings
relating to a stop order suspending the effectiveness of the Shelf
Registration Statement;
(iii) of the issuance by the Commission of any stop order
suspending the effectiveness of the Shelf Registration Statement;
(iv) of the receipt by the Company of any notification with
respect to the suspension of the qualification of the securities included
therein for sale in any jurisdiction or the initiation or threatening of
any proceeding for such purpose; and
(v) of the occurrence of the existence of any fact and the
happening of any event (including, without limitation, pending negotiations
relating to, or the consummation of, a transaction or the occurrence of any
event which would require additional disclosure of material non-public
information by the Company in the Shelf Registration Statement as to which
the Company has a bona fide business purpose for preserving confidential or
which renders the Company unable to comply with Commission requirements)
that, in the opinion of the Company, makes untrue any statement of a
material fact made in its Shelf Registration Statement, the Prospectus or
any amendment or supplement thereto or any document incorporated by
reference therein or requires the making of any changes in the Shelf
Registration Statement or the Prospectus so that, as of such date, the
statements therein are not misleading and do not omit to state a material
fact required to be stated therein or necessary to make the statements
therein (in the case of the Prospectus, in light of the circumstances under
which they were made) not misleading.
Such Advice may be accompanied by an instruction to suspend the use of the
Prospectus until the requisite changes have been made.
(d) The Company shall use its best efforts to obtain the withdrawal of
any order suspending the effectiveness of the Shelf Registration Statement, or
the lifting of any suspension of the qualification (or exemption from
qualification) of the Transfer Restricted Securities for sale in any
jurisdiction, at the earliest possible time.
(e) The Company shall furnish to each selling Holder named in the
Shelf Registration Statement and each Managing Underwriter, if any, without
charge, at least one conformed copy of such Shelf Registration Statement and any
post-effective amendment thereto, including financial statements and schedules.
Upon written request, the Company shall furnish to each selling Holder named in
the Shelf
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Registration Statement and each Managing Underwriter, if any, without charge,
one copy of all exhibits to such Shelf Registration Statement (including those
incorporated by reference).
(f) The Company shall, during the Shelf Registration Period, deliver
to each Holder of Transfer Restricted Securities named in the Shelf Registration
Statement and each Managing Underwriter, if any, without charge, as many copies
of the Prospectus (including each preliminary Prospectus) included in such Shelf
Registration Statement and any amendment or supplement thereto as such Holder or
Managing Underwriters may reasonably request; and, subject to any notice by the
Company in accordance with Section 7(b), the Company consents to the use of the
Prospectus or any amendment or supplement thereto by each of the selling Holders
and such underwriters for the purposes of offering and resale of the Transfer
Restricted Securities covered by the Prospectus or any amendment or supplement
thereto.
(g) Prior to the offering of Transfer Restricted Securities pursuant
to the Shelf Registration Statement, the Company shall use its best efforts to
register or qualify or cooperate with the Holders of Transfer Restricted
Securities named therein, the Managing Underwriters, if any, and their
respective counsel in connection with the registration or qualification (or
exemption from such registration or qualification) of such Transfer Restricted
Securities for offer and sale under the securities or blue sky laws of such
jurisdictions of the United States as any such Holders or Managing Underwriters,
if any, reasonably request in writing; keep each such registration or
qualification (or exemption therefrom) effective during the period the Shelf
Registration Statement is required to be kept effective and do any and all other
acts or things necessary or advisable to enable the disposition in such
jurisdictions of the Transfer Restricted Securities covered by the Shelf
Registration Statement; provided, however, that the Company will not be required
to qualify generally to do business in any jurisdiction where it is not then so
qualified or to take any action which would subject it to general service of
process or to taxation in any such jurisdiction where it is not then so subject.
(h) The Company shall cooperate with the Holders of Transfer
Restricted Securities and underwriters, if any, to facilitate the timely
preparation and delivery of certificates representing Transfer Restricted
Securities to be sold pursuant to the Shelf Registration Statement, free of any
restrictive legends and in such denominations and registered in such names as
such Holders or underwriters may request in writing at least two Business Days
prior to sales of securities pursuant to such Shelf Registration Statement.
(i) Upon the occurrence of any event contemplated by Section
5(c)(2)(v) hereof, subject to Section 5(s), the Company shall promptly prepare a
post-effective amendment to the Shelf Registration Statement or an amendment or
supplement to the related Prospectus or any document incorporated therein by
reference or file any other required document so that as thereafter delivered to
purchasers of the Transfer Restricted Securities covered thereby, the Prospectus
will not include an untrue statement of a material fact or omit to state any
material fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
(j) Not later than the effective date of any such Shelf Registration
Statement hereunder, the Company shall cause to be provided CUSIP numbers for
the Transfer Restricted Securities
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registered under such Shelf Registration Statement, and provide the Trustee with
printed certificates for such Transfer Restricted Securities where necessary, in
a form eligible for deposit with The Depository Trust Company.
(k) The Company shall use its best efforts to comply with all
applicable rules and regulations of the Commission and shall make generally
available to its security holders in a regular filing on Form 10-Q or Form 10-K
an earnings statement satisfying the provisions of Rule 158 (which need not be
audited) for the twelve-month period commencing after effectiveness of the Shelf
Registration Statement.
(l) The Company shall cause the Indenture to be qualified under the
Trust Indenture Act in a timely manner.
(m) The Company shall file, within five Business Days of the receipt
from any Holder with respect to such information regarding the distribution of
such Holder's Transfer Restricted Securities with respect to such Holder as is
required by law to be disclosed in the applicable Shelf Registration Statement
(the "Requisite Information"), a Prospectus supplement pursuant to Rule 424 to
amend or supplement such Shelf Registration Statement to include in the Shelf
Registration Statement the Requisite Information as to such Holder (and the
Transfer Restricted Securities held by such Holder), and the Company shall
provide such Holder and the Special Counsel within ten (10) Business Days of
such notice with a copy of such Prospectus as so amended or supplemented
containing the Requisite Information in order to permit such Holder to comply
with the Prospectus delivery requirements of the Securities Act in a timely
manner with respect to any proposed disposition of such Holder's Transfer
Restricted Securities. No Holder of Transfer Restricted Securities shall be
entitled to the benefit of any Liquidated Damages under Section 4 of this
Agreement or be entitled to use the Prospectus unless and until such Holder
shall have furnished the Company the Requisite Information.
(n) The Company shall, if requested, promptly incorporate in the Shelf
Registration Statement or Prospectus, if necessary, pursuant to a supplement or
post-effective amendment to the Shelf Registration Statement, such information
as the Managing Underwriters, if any, or the Majority Holders reasonably request
to have included therein and shall make all required filings of such Prospectus
supplement or post-effective amendment as soon as practicable after the Company
is notified of the matters to be incorporated in such Prospectus supplement or
post-effective amendment.
(o) The Company shall enter into such agreements on terms reasonably
acceptable to the Company (including underwriting agreements) in form, scope and
substance as are customary in underwritten offerings, and take all other
reasonable actions necessary to facilitate the registration or the disposition
of the Transfer Restricted Securities included in the Shelf Registration
Statement.
(p) The Company shall make reasonably available at reasonable times
for inspection by the Holders of Transfer Restricted Securities to be registered
thereunder, any Managing Underwriter, and any attorney, accountant or other
agent retained by the Holders or such Managing Underwriters, at the office where
normally kept during normal business hours, all financial and other records,
pertinent corporate documents and properties of the Company and its
subsidiaries, and cause the Company's
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officers, directors and employees to supply all relevant information reasonably
requested by the Holders, Managing Underwriters, attorney, accountant or other
agent in connection with the Shelf Registration Statement as is customary for
similar due diligence examinations, provided, however, that such persons shall
first agree in writing with the Company that any information that is reasonably
and in good faith designated by the Company in writing as confidential at the
time of delivery of such information shall be kept confidential by such persons.
(q) The Company shall (i) list all Common Stock covered by such Shelf
Registration Statement on any securities exchange on which the Common Stock is
then listed or (ii) authorize for quotation on the National Association of
Securities Dealers Automated Quotation System ("Nasdaq") or the National Market
System of Nasdaq all Common Stock covered by such Shelf Registration Statement
if the Common Stock is then so authorized for quotation.
(r) The Company shall use its reasonable efforts to take all other
steps necessary to effect the registration, offering and sale of the Transfer
Restricted Securities covered by the Shelf Registration Statement contemplated
hereby.
(s) Notwithstanding any provision of this Section 5 to the contrary,
the Company shall not be required to amend or supplement the Shelf Registration
Statement pursuant to the requirements of Sections 5(b), 5(c), 5(i) or 5(r)
hereof if (i) such amendment or supplement would require the Company to disclose
a material financing, acquisition or corporate transaction and the Board of
Directors shall have determined that such disclosure is not in the best
interests of the Company and the holders of its outstanding Common Stock or (ii)
the Board of Directors shall have determined in good faith that there is a valid
business purpose or reason for suspending the use of the Prospectus included in
such Shelf Registration Statement in accordance with Section 5(i) hereof instead
of making such amendment or supplement, provided that in each such case the
Company complies with its obligations, if any, to pay Liquidated Damages
pursuant to Section 4 hereof.
6. UNDERWRITTEN OFFERING. The Holders who desire to do so may sell
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Transfer Restricted Securities in an Underwritten Offering. In any such
Underwritten Offering, the investment banker or bankers and manager or managers
that will administer the offering will be selected by, and the underwriting
arrangements with respect thereto will be approved by the Holders of a majority
of the Transfer Restricted Securities to be included in such offering; provided,
however, that (i) such investment bankers and managers and underwriting
arrangements must be reasonably satisfactory to the Company and (ii) the Company
shall not be obligated to arrange for more than one Underwritten Offering during
the effectiveness period of the Shelf Registration Statement. No Holder may
participate in any Underwritten Offering contemplated hereby unless such Holder
(a) agrees to sell such Holder's Transfer Restricted Securities in accordance
with any approved underwriting arrangements, (b) completes and executes all
reasonable questionnaires, powers of attorney, indemnities, underwriting
agreements, lock-up letters and other documents required under the terms of such
approved underwriting arrangements and (c) at least 50% of the outstanding
Transfer Restricted Securities are included in such Underwritten Offering. The
Holders participating in any Underwritten Offering shall be responsible for any
expenses customarily borne by selling securityholders, including underwriting
discounts and commissions and fees and expenses of counsel to the selling
securityholders and shall reimburse the Company for the fees and
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disbursements of their counsel, their independent public accountants and any
printing expenses incurred in connection with such Underwritten Offerings.
Notwithstanding the foregoing or the provisions of Section 6(a) hereof, upon
receipt of a request from the Managing Underwriter or a representative of
Holders of a majority of the Transfer Restricted Securities outstanding to
prepare and file an amendment or supplement to the Shelf Registration Statement
and Prospectus in connection with an Underwritten Offering, the Company may
delay the filing of any such amendment or supplement for up to 90 days if the
Company in good faith has a valid business reason for such delay.
The Company shall in connection with an Underwritten Offering in accordance
with the provisions of this Section:
(a) The Company shall, if requested, promptly include or incorporate
in a Prospectus supplement or post-effective amendment to a Shelf Registration
Statement, such information as the Managing Underwriters administering an
Underwritten Offering of Transfer Restricted Securities registered thereunder
reasonably request to be included therein and to which the Company does not
reasonably object and shall make all required filings of such Prospectus
supplement or post-effective amendment as soon as practicable after they are
notified of the matters to be included or incorporated in such Prospectus
supplement or post-effective amendment;
(b) make such representations and warranties to the Holders and the
underwriters in form, substance and scope as are customarily made by the Company
to underwriters in primary underwritten offerings and covering matters,
including, but not limited to, those set forth in the Purchase Agreement;
(c) obtain opinions of counsel to the Company and updates thereof
(which counsel and opinions (in form, scope and substance) shall be reasonably
satisfactory to the Managing Underwriters) addressed to each Holder and the
underwriters covering such matters as are customarily covered in opinions
requested in underwritten offerings and such other matters as may be reasonably
requested by such Holders and underwriters (it being agreed that the matters to
be covered by such opinion or written statement by such counsel delivered in
connection with such opinions shall include in customary form, without
limitation, as of the date of the opinion and as of the effective date of the
Shelf Registration Statement or most recent post-effective amendment thereto, as
the case may be, the absence from such Shelf Registration Statement and the
prospectus included therein, as then amended or supplemented, including the
documents incorporated by reference therein, of an untrue statement of a
material fact or the omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading);
(d) obtain "cold comfort" letters and updates thereof from the
independent public accountants of the Company (and, if necessary, any other
independent public accountants of any subsidiary of the Company or of any
business acquired by the Company for which financial statements and financial
data are, or are required to be, included in the Shelf Registration Statement),
addressed to each Holder and the underwriters in customary form and covering
matters of the type customarily covered in "cold comfort" letters in connection
with primary underwritten offerings; and
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(e) deliver such documents and certificates as may be reasonably
requested by any such Holders and the Managing Underwriters, including those to
evidence compliance with Section 3(c)(2)(v) and with any customary conditions
contained in the underwriting agreement or other agreement entered into by the
Company.
7. HOLDERS' AGREEMENTS. Each Holder of Transfer Restricted Securities,
-------------------
by the acquisition of such Transfer Restricted Securities agrees:
(a) To furnish the Requisite Information required to be furnished
pursuant to Section 5(m) hereof. The Company may exclude from any Shelf
Registration Statement the Transfer Restricted Securities of any Holder who does
not furnish such Requisite Information. Each Holder of Transfer Restricted
Securities shall promptly furnish to the Company all such information required
to be disclosed in order to make the Requisite Information previously furnished
to the Company by such Holder not materially misleading.
(b) That upon receipt of a notice from the Company that the Prospectus
and Shelf Registration Statement is unavailable for resales of Transfer
Restricted Securities forthwith discontinue disposition of its Transfer
Restricted Securities, as the case may be, pursuant to the Shelf Registration
Statement, and will not deliver any Prospectus forming a part thereof until
receipt of the amended or supplemented Shelf Registration Statement or
Prospectus, as applicable, as contemplated by Section 5(i) hereof, or until
receipt of the Advice.
(c) Sales of such Transfer Restricted Securities pursuant to a Shelf
Registration Statement shall only be made in the manner set forth in such
currently effective Shelf Registration Statement.
8. REGISTRATION EXPENSES. The Company shall bear all expenses incurred
---------------------
in connection with the performance of its obligations under Sections 2, 3, 4 and
5 hereof and will reimburse the Holders for the reasonable fees and
disbursements of Special Counsel. Notwithstanding the foregoing or anything in
this Agreement to the contrary, each Holder shall pay all underwriting discounts
and commissions of any underwriters with respect to any Transfer Restricted
Securities sold by it.
9. INDEMNIFICATION AND CONTRIBUTION.
--------------------------------
(a) In connection with the Shelf Registration Statement, the Company
will indemnify and hold harmless each Holder of Transfer Restricted Securities
covered thereby, the directors, officers, employees and agents of each such
Holder and each person who controls any such Holder within the meaning of either
Section 15 of the Securities Act or Section 20 of the Exchange Act from and
against any and all losses, claims, liabilities, expenses and damages, joint or
several (including any and all investigative, legal and other expenses
reasonably incurred in connection with, and any amount paid in settlement of,
any action, suit or proceeding or any claim asserted), to which they, or any of
them, may become subject under the Securities Act, the Exchange Act or other
federal, state or foreign statutory law or regulation, at common law or
otherwise, insofar as such losses, claims, liabilities, expenses and damages
arise out of or are based upon any untrue statement or alleged untrue statement
of a material fact
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contained in the Shelf Registration Statement as originally filed or in any
amendment thereof, or in any preliminary Prospectus or Prospectus, or in any
amendment thereof or supplement thereto, or the omission or alleged omission to
state in such documents a material fact required to be stated therein or
necessary to make the statements therein not misleading; provided, that (i) the
Company will not be liable to the extent that any such loss, claim, liability
expense or damage arises out of or is based on any such untrue statement or
omission or alleged untrue statement or omission made therein in reliance on and
in conformity with information relating to any Holder of Transfer Restricted
Securities furnished in writing to the Company by any such Holder expressly for
inclusion therein and (ii) the Company will not be liable to any Holder of
Transfer Restricted Securities under the indemnity agreement in this Section
9(a) with respect to any preliminary Prospectus or a Prospectus that is
subsequently amended or supplemented to the extent that any such loss, claim,
liability, expense or damage of such Holder results from an untrue statement of
a material fact contained in, or the omission of a material fact from, the
preliminary Prospectus or Prospectus which untrue statement or omission was
corrected in the final Prospectus or the Prospectus as amended or supplemented,
as the case may be, if the Company had previously furnished copies thereof to
such Holder within a reasonable amount of time prior to such sale or such
confirmation. This indemnity agreement will be in addition to any liability
which the Company might otherwise have.
The Company also agrees to indemnify or contribute to the losses, claims,
liabilities, expenses and damages, joint or several (including any and all
investigative, legal and other expenses reasonably incurred in connection with,
and any amount paid in settlement of, any action, suit or proceeding or any
claim asserted) of any underwriters of Transfer Restricted Securities registered
under the Shelf Registration Statement, their officers and directors and each
person who controls such underwriters on substantially the same basis as that of
the indemnification of the selling Holders provided in this Section 9(a) and
shall, if requested by any Holder, enter into a customary underwriting agreement
reflecting such agreement, as provided in Section 5(o) hereof.
(b) Each Holder of Transfer Restricted Securities covered by the Shelf
Registration Statement will severally indemnify and hold harmless the Company,
each person who controls the Company within the meaning of either Section 15 of
the Securities Act or Section 20 of the Exchange Act, each director of the
Company and each officer of the Company to the same extent as the foregoing
indemnity from the Company to each such Holder, but only insofar as losses,
claims, liabilities, expenses or damages arise out of or are based on any untrue
statement or omission or alleged untrue statement or omission made in reliance
on and in conformity with information relating to such Holder furnished to the
Company by or on behalf of such Holder expressly for use in the Shelf
Registration Statement as originally filed or in any amendment thereof, or in
any preliminary Prospectus or Prospectus, or in any amendment thereof or
supplement thereto. This indemnity agreement will be in addition to any
liability that such Holder might otherwise have.
(c) Any party that proposes to assert the right to be indemnified
under this Section 9 will, promptly after receipt of notice of commencement of
any action against such party in respect of which a claim is to be made against
an indemnifying party or parties under this Section 9, notify each indemnifying
party of the commencement of such action, enclosing a copy of all papers served,
but the omission so to notify such indemnifying party (i) will not relieve it
from any liability that it may have to any indemnified party under the foregoing
provisions of this Section 9 unless, and only to the extent that,
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it did not otherwise learn of such action and such omission results in the
forfeiture of substantive rights or defenses by the indemnifying party and (ii)
will not, in any event relieve the indemnifying party from any obligations to
any indemnified party other than the indemnification obligations in Sections
9(a) and 9(b) hereof. If any such action is brought against any indemnified
party and it notifies the indemnifying party of its commencement, the
indemnifying party will be entitled to participate in and, to the extent that it
elects by delivering written notice to the indemnified party promptly after
receiving notice of the commencement of the action from the indemnified party,
jointly with any other indemnifying party similarly notified, to assume the
defense of the action, with counsel satisfactory to the indemnified party, and
after notice from the indemnifying party to the indemnified party of its
election to assume the defense, the indemnifying party will not be liable to the
indemnified party for any legal or other expenses except as provided below and
except for the reasonable costs of investigation subsequently incurred by the
indemnified party in connection with the defense. The indemnified party will
have the right to employ its own counsel in any such action, but the fees,
expenses and other charges of such counsel will be at the expense of such
indemnified party unless (1) the employment of counsel by the indemnified party
has been authorized in writing by the indemnifying party, (2) the indemnified
party has reasonably concluded (based on advice of counsel to the indemnified
party) that there may be legal defense available to it or other available
indemnified parties that are different from or in addition to those available to
the indemnifying party, (3) a conflict or potential conflict exists (based on
advice of counsel to the indemnified party) between the indemnified party and
the indemnifying party (in which case the indemnifying party will not have the
right to direct the defense of such action on behalf of the indemnified party)
or (4) the indemnifying party has not in fact employed counsel to assume the
defense of such action within a reasonable time after receiving notice of the
commencement of the action, in each of which cases the reasonable fees,
disbursements and other charges of counsel will be at the expense of the
indemnifying party or parties. It is understood that the indemnifying party or
parties shall not, in connection with any proceeding or related proceedings in
the same jurisdiction, be liable for the reasonable fees, disbursements and
other charges of more than one separate firm admitted to practice in such
jurisdiction at any one time for all such indemnified party or parties. Such
firm shall be designated in writing by the Majority Holders in the case of
parties indemnified pursuant to Section 9(a) and by the Company, in the case of
parties indemnified pursuant to Section 9(b). All such fees, disbursements and
other charges will be reimbursed by the indemnifying party promptly as they are
incurred. No indemnifying party shall, without the prior written consent of each
indemnified party, settle or compromise or consent to the entry of any judgment
in any pending or threatened claim, action or proceeding relating to the matters
contemplated by this Section 9 (whether or not any indemnified party is a party
thereto), unless such settlement, compromise or consent includes an
unconditional release of each indemnified party from all liability arising or
that may arise out of such claim, action or proceeding.
(d) In order to provide for just and equitable contribution in
circumstances in which the indemnification provided for in the foregoing
paragraphs of this Section 9 is applicable in accordance with its terms but for
any reason is held to be unavailable from the Company or the Holders of Transfer
Restricted Securities, or insufficient, the Company and such Holders will
contribute to the total losses, claims, liabilities, expenses and damages
(including any investigative, legal and other expenses reasonably incurred in
connection with, and any amount paid in settlement of, any action, suit or
proceeding or any claim asserted, but after deducting any contribution received
by the Company from persons other than such Holders, such as persons who control
the Company within the meaning of the Securities Act or the
-14-
Exchange Act and officers and directors of the Company, who also may be liable
for contribution) (collectively, "Losses") to which the Company and any one or
more of such Holders of Transfer Restricted Securities may be subject in such
proportion as shall be appropriate to reflect the relative benefits received by
the Company on the one hand and such Holders on the other. The relative benefits
received by the Company shall be deemed to be equal to the sum of (x) the total
net proceeds from the Initial Placement (before deducting expenses) as set forth
on the cover page of the Offering Memorandum and (y) the total amount of
Liquidated Damages, if any, which the Company was not required to pay as a
result of registering the securities covered by the Shelf Registration Statement
which resulted in such Losses. Benefits received by the Initial Purchasers shall
be deemed to be equal to the total purchase discounts and commissions as set
forth on the cover page of the Offering Memorandum, and benefits received by any
other Holders shall be deemed to be equal to the value of receiving Notes or
Common Stock issuable upon conversion thereof, as applicable, registered under
the Securities Act. Benefits received by any underwriter shall be deemed to be
equal to the total underwriting discounts and commissions, as set forth on the
cover page of the Prospectus forming a part of the Shelf Registration Statement
which resulted in such Losses. If, but only if, the allocation provided by the
foregoing sentence is not permitted by applicable law, the allocation of
contribution shall be made in such proportion as is appropriate to reflect not
only the relative benefits referred to in the foregoing sentence but also the
relative fault of the Company, on the one hand, and the Holders, on the other,
with respect to the statements or omissions which resulted in such loss, claim,
liability, expense or damage, or action in respect thereof, as well as any other
relevant equitable considerations with respect to such offering. Such relative
fault shall be determined by reference to whether the untrue or alleged untrue
statement of a material fact or omission or alleged omission to state a material
fact relates to information supplied by the Company or the Holders, the intent
of the parties and their relative knowledge, access to information and
opportunity to correct or prevent such statement or omission. The Company and
the Holders agree that it would not be just and equitable if contributions
pursuant to this Section 9(d) were to be determined by pro rata allocation (even
if the Holders were treated as one entity for such purpose) or by any other
method of allocation which does not take into account the equitable
considerations referred to herein. The amount paid or payable by an indemnified
party as a result of the loss, claim, liability, expense or damage, or action in
respect thereof, referred to above in this Section 9(d) shall be deemed to
include, for purpose of this Section 9(d), any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating
or defending any such action or claim. Notwithstanding the provisions of this
Section 9(d), in no case shall any Initial Purchaser or any subsequent Holder of
any Transfer Restricted Securities be responsible, in the aggregate, for any
amount in excess of the purchase discount or commission applicable to such
Notes, as set forth on the cover page of the Offering Memorandum, nor shall any
underwriter be responsible for any amount in excess of the underwriting discount
or commission applicable to the securities purchased by such underwriter under
the Shelf Registration Statement which resulted in such Losses. No person found
guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of
the Securities Act) will be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The Holders' obligations to
contribute as provided in this Section 9(d) are several and not joint. For
purposes of this Section 9(d), any person who controls the Company or a Holder
within the meaning of the Securities Act will have the same rights to
contribution as that party, and each officer or director of the Company or such
Holder will have the same rights to contribution, as the Company or such Holder,
as applicable, subject in each case to the provisions hereof. Any party entitled
to contribution promptly after receipt of notice of commencement of any action
against such party in respect of which a claim for
-15-
contribution may be made under this Section 9(d), will notify any such party or
parties from whom contribution may be sought, but the omission so to notify will
not relieve the party or parties from whom contribution may be sought from any
other obligation it or they may have under this Section 9(d). No party will be
liable for contribution with respect to any action or claim settled without its
written consent (which consent will not be unreasonably withheld or delayed).
(e) The indemnity and contribution agreements contained in this
Section 9 will remain in full force and effect, regardless of any investigation
made by or on behalf of any Holder or the Company or any of the officers,
directors or controlling persons referred to in this Section 9, and will survive
the sale by a Holder of securities covered by the Shelf Registration Statement.
10. RULES 144 AND 144A. The Company shall use its best efforts to file
------------------
the reports required to be filed by it under the Securities Act and the Exchange
Act in a timely manner and, if at any time it is not required to file such
reports but in the past had been required to or did file such reports, it will,
upon the request of any holder of Transfer Restricted Securities, make available
other information as reasonably required by, and so long as necessary to permit,
sales of its Transfer Restricted Securities pursuant to Rule 144 and Rule 144A.
Notwithstanding the foregoing, nothing in this Section 10 shall be deemed to
require the Company to register any of its securities pursuant to the Exchange
Act.
11. MISCELLANEOUS.
-------------
(a) Remedies. In the event of a breach by the Company of its
--------
obligations under this Agreement, each Holder, in addition to being entitled to
exercise all rights granted by law, including recovery of damages, will be
entitled to specific performance of its rights under this Agreement. The
Company agrees that monetary damages (including the Liquidated Damages
contemplated hereby) would not be adequate compensation for any loss incurred by
reason of a breach by it of the provisions of this Agreement and hereby agrees
to waive the defense in any action for specific performance that a remedy at law
would be adequate. The remedies provided herein are cumulative and not
exclusive of any remedies provided by law; provided, that monetary damages
relating solely to a Registration Default shall be limited to the amount of
Liquidated Damages calculated in accordance with Section 4 hereof.
(b) No Inconsistent Agreements. The Company has not, as of the date
--------------------------
hereof, entered into, nor shall it, on or after the date hereof, enter into, any
agreement with respect to its securities that is inconsistent with the rights
granted to the Holders herein or otherwise conflicts with the provisions hereof.
(c) Amendments and Waivers. The provisions of this Agreement,
----------------------
including the provisions of this sentence, may not be amended, qualified,
modified or supplemented, and waivers or consents to departures from the
provisions hereof may not be given, unless the Company has obtained the written
consent of the Holders of at least a majority of the then outstanding aggregate
principal amount of Transfer Restricted Securities; provided that, with respect
to any matter that directly or indirectly affects the rights of any Initial
Purchaser hereunder, the Company shall obtain the written consent of each such
Initial Purchaser against which such amendment, qualification, supplement,
waiver or consent is to be effective. Notwithstanding the foregoing (except the
foregoing proviso), a waiver or consent to
-16-
departure from the provisions hereof with respect to a matter that relates
exclusively to the rights of Holders whose securities are being sold pursuant to
a Shelf Registration Statement and that does not directly or indirectly affect
the rights of other Holders may be given by the Majority Holders, determined on
the basis of Notes being sold rather than registered under such Shelf
Registration Statement.
(d) Notices. All notices and other communications provided for or
-------
permitted hereunder shall be made in writing by hand-delivery, registered or
certified first-class mail, telex, telecopier, or air courier guaranteeing
overnight delivery:
(1) if to a Holder, at the most current address given by such
Holder to the Company in accordance with the provisions of this Section 11(d),
which address initially is, with respect to each Holder, the address of such
Holder maintained by the registrar under the Indenture, with a copy in like
manner to PaineWebber Incorporated;
(2) if to the Initial Purchasers, initially at the address set
forth in the Purchase Agreement; and
(3) if to the Company, initially at its address set forth in the
Purchase Agreement.
All such notices and communications shall be deemed to have been duly
given: at the time delivered by hand, if personally delivered; five Business
Days after being deposited in the mail, postage prepaid, if mailed; when
answered back, if telexed; when receipt acknowledged, if telecopied; and on the
next Business Day, if timely delivered to an air courier guaranteeing overnight
delivery.
The Initial Purchasers or the Company by notice to the other may designate
additional or different addresses for subsequent notices or communications.
(e) Successors and Assigns. This Agreement shall inure to the benefit
----------------------
of and be binding upon the successors and assigns of each of the parties hereto,
including, without the need for an express assignment or any consent by the
Company thereto, subsequent Holders of Transfer Restricted Securities. The
Company hereby agrees to extend the benefits of this Agreement to any Holder of
Transfer Restricted Securities and any such Holder may specifically enforce the
provisions of this Agreement as if an original party hereto. The Company may
not assign its rights or obligations hereunder without the prior written consent
of each Holder of Transfer Restricted Securities.
(f) Counterparts. This Agreement may be executed in any number of
------------
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
(g) Headings. The headings in this Agreement are for convenience of
--------
reference only and shall not limit or otherwise affect the meaning hereof. All
references made in this Agreement to "Section" and "paragraph" refer to such
Section or paragraph of this Agreement, unless expressly stated otherwise.
-17-
(h) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
-------------
IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK APPLICABLE TO
AGREEMENTS MADE AND TO BE PERFORMED IN SAID STATE (WITHOUT REFERENCE TO THE
CONFLICT OF LAW RULES THEREOF).
(i) Severability. In the event that any one of more of the provisions
------------
contained herein, or the application thereof in any circumstances, is held
invalid, illegal or unenforceable in any respect for any reason, the validity,
legality and enforceability of any such provision in every other respect and of
the remaining provisions hereof shall not be in any way impaired or affected
thereby, it being intended that all of the rights and privileges of the parties
shall be enforceable to the fullest extent permitted by law.
(j) Attorneys' Fees. In any action or proceeding brought to enforce
---------------
any provision of this Agreement, or where any provision hereof is validly
asserted as a defense, the prevailing party, as determined by the court, shall
be entitled to recover its reasonable attorneys' fees in addition to any other
available remedy.
(k) Approval of Holders. Whenever the consent or approval of holders
-------------------
of a specified percentage of Transfer Restricted Securities is required
hereunder, Transfer Restricted Securities held by the Company or its affiliates
(as such term is defined in Rule 405 under the Securities Act) shall not be
counted in determining whether such consent or approval was given by the holders
of such required percentage. For purposes of calculating the consent or
approval of holders of a majority of the then outstanding aggregate principal
amount of Transfer Restricted Securities, Transfer Restricted Securities which
have been converted into shares of Common Stock shall be deemed to bear the
principal amount at which such securities were converted.
(l) Entire Agreement. This Agreement is intended by the parties as a
----------------
final expression of their agreement relating to the registration under the
Securities Act of the Transfer Restricted Securities and is intended to be a
complete and exclusive statement of the agreement and understanding of the
parties hereto in respect of the subject matter contained herein and the
registration rights granted by the Company with respect to the Notes sold
pursuant to the Purchase Agreement and the Common Stock issuable upon conversion
of the Notes. There are no restrictions, promises, warranties or undertakings,
other than those set forth or referred to herein, with respect to the
registration rights granted by the Company with respect to the Notes or the
Common Stock issuable upon conversion of the Notes. This Agreement supersedes
all prior agreements and understandings among the parties with respect to such
registration rights.
(m) Further Assurances. Each of the parties hereto shall use all
------------------
reasonable efforts to take, or cause to be taken, all appropriate action, do or
cause to be done all things reasonably necessary, proper or advisable under
applicable law, and execute and deliver such documents and other papers, as may
be required to carry out the provisions of this Agreement and the other
documents contemplated hereby and consummate and make effective the transactions
contemplated hereby.
-18-
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first written above.
P-COM, INC.
By: /s/ Xxxxxxx X. Sophie
----------------------
Name: Xxxxxxx X. Sophie
------------------
Title: Chief Financial Officer and Vice President,
------------------------------------------
Finance and Administration
The foregoing Registration Rights Agreement
is hereby confirmed and agreed to as of the
date first written above:
PAINEWEBBER INCORPORATED
BANCAMERICA XXXXXXXXX XXXXXXXX
NATIONSBANC XXXXXXXXXX SECURITIES, INC.
PACIFIC GROWTH EQUITIES, INC.
By: PAINEWEBBER INCORPORATED
Acting on behalf of itself and other Initial Purchasers
By: /s/ Xxxxx X. Xxxxxx
--------------------
Authorized Signatory
-19-
