EXHIBIT 4.8
PC-TEL, INC.
AMENDED AND RESTATED RIGHTS AGREEMENT
THIS AMENDED AND RESTATED RIGHTS AGREEMENT (the "Agreement") is made as of
December 31, 1997 by and among PC-Tel, Inc., a California corporation (the
"Company"), having its principal executive offices located at 000 Xxxxx Xxxxx,
Xxxxx 000, Xxxxxxxx, Xxxxxxxxxx 00000, and each of the persons and entities who
have purchased shares of the Company's Series B Preferred Stock ("Series B
Preferred") and Series C Preferred Stock ("Series C Preferred").
RECITALS
The Company and holders of the Company's Series B Preferred Stock (the
"Prior Rights Holders") desire to amend and restate the Rights Agreement dated
as of October 18, 1995 (the "Prior Agreement") to permit the grant of
registration and other rights as described herein to purchasers of the Series C
Preferred Stock of the Company.
NOW, THEREFORE, in consideration of the foregoing, the parties agree as
follows:
SECTION 1.
Restrictions on Transferability, Registration Rights
1.1 Certain Definitions. As used in this Agreement, the following terms
-------------------
shall have the following respective meanings:
"Commission" shall mean the Securities and Exchange Commission or any
----------
successor agency.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
------------
amended.
"Holder" shall mean each Purchaser and any transferee of Registrable
------
Securities who pursuant to Section 1.15 below is entitled to registration rights
hereunder.
"Holder of Series B Preferred" shall mean a Holder of shares of Series
----------------------------
B Preferred or shares of the Company's Common Stock issued upon the conversion
of shares of Series B Preferred.
"Holder of Series C Preferred" shall mean a Holder of shares of Series
----------------------------
C Preferred or shares of the Company's Common Stock issued upon the conversion
of shares of Series C Preferred.
"Preferred" shall mean shares of Series B Preferred and Series C
---------
Preferred Stock of the Company.
"Purchaser" shall mean each person or entity who has acquired shares
---------
of Preferred and any related securities pursuant to a stock purchase agreement
between such person or entity and the Company and who is a signatory to this
Agreement.
"Registrable Securities" shall mean (i) shares of the Company's Common
----------------------
Stock issued or issuable upon the conversion of the Preferred; (ii) any Common
Stock of the Company or other securities issued or issuable in respect of shares
of the Preferred; (iii) any Common Stock of the Company or other securities
issued or issuable upon exercise or conversion of any related securities; and
(iv) shares of the Company's Common Stock or other securities issued or issuable
upon any conversion of the Preferred or exercise or conversion of any related
securities upon any stock split, stock dividend, recapitalization, or similar
event; provided, however, that any shares described in clauses (i) through (iv)
-------- -------
above which have been resold to the public shall cease to be Registrable
Securities upon such resale.
The terms "register," "registered" and "registration" refer to a
-------- ---------- ------------
registration effected by preparing and filing a registration statement in
compliance with the Securities Act, and the declaration or ordering of the
effectiveness of such registration statement.
"Registration Expenses" shall mean all expenses incurred by the
---------------------
Company in complying with Sections 1.5, 1.6, and 1.7 hereof, including, without
limitation, all registration, qualification and filing fees, printing expenses,
escrow fees, fees and disbursements of counsel for the Company, fees and
disbursements of one special counsel to the Holders, blue sky fees and expenses,
and the expense of any special audits incident to or required by any such
registration but excluding all Selling Expenses.
"Restricted Securities" shall mean the securities of the Company
---------------------
required to bear the legend set forth in Section 1.3 hereof (or any similar
legend).
"Securities Act" shall mean the Securities Act of 1933, as amended.
--------------
"Selling Expenses" shall mean all underwriting discounts, selling
----------------
commissions and stock transfer taxes applicable to the securities registered by
the Holders and any fees of counsel to any Holder.
1.2 Restrictions on Transferability. The Restricted Securities shall not
-------------------------------
be transferable except upon the conditions specified in this Agreement, which
conditions are intended to ensure compliance with the provisions of the
Securities Act. In no event shall Restricted Securities be transferred to any
entity (or any affiliate thereof) which is engaged in the development, marketing
or sale of products that are, in the Company's judgment, the same or similar to
those of the Company, and any such attempted transfer shall be void ab initio.
Each holder of Restricted Securities will cause any proposed transferee of the
Restricted Securities held by such holder to agree to take and
-2-
hold such Restricted Securities subject to the provisions and upon the
conditions specified in this Agreement.
1.3 Restrictive Legend. Each certificate representing (i) the Preferred,
------------------
(ii) shares of the Company's Common Stock issued upon conversion of the
Preferred, and (iii) any other securities issued in respect of the Preferred (or
Common Stock issued upon conversion of the Preferred) upon any stock split,
stock dividend, recapitalization, merger, consolidation or similar event, shall
(unless otherwise permitted by the provisions of Section 1.4 below) be stamped
or otherwise imprinted with a legend in substantially the following form (in
addition to any legend required under applicable state securities laws):
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE BEEN ACQUIRED FOR
INVESTMENT AND HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933,
AS AMENDED (THE "SECURITIES ACT"). THESE SECURITIES MAY NOT BE SOLD OR
TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN EXEMPTION THEREFROM
UNDER THE SECURITIES ACT. COPIES OF THE AGREEMENT COVERING THE PURCHASE OF
THESE SECURITIES AND RESTRICTING THEIR TRANSFER MAY BE OBTAINED AT NO COST
BY WRITTEN REQUEST MADE BY THE HOLDER OF RECORD OF THIS CERTIFICATE TO THE
SECRETARY OF THE COMPANY AT ITS PRINCIPAL EXECUTIVE OFFICES.
Each Purchaser and Holder consents to the Company making a notation on its
records and giving instructions to any transfer agent of the Preferred or the
Common Stock in order to implement the restrictions on transfer established in
this Section.
1.4 Notice of Proposed Transfers. The holder of each certificate
----------------------------
representing Restricted Securities by acceptance thereof agrees to comply in all
respects with the provisions of this Section. Prior to any proposed transfer of
any Restricted Securities, unless there is in effect a registration statement
under the Securities Act covering the proposed transfer, the holder thereof
shall give written notice to the Company of such Holder's intention to effect
such transfer. Each such notice shall describe the manner and circumstances of
the proposed transfer in sufficient detail, and shall, if the Company so
requests, be accompanied by either (i) a written opinion of legal counsel, who
shall be reasonably satisfactory to the Company, addressed to the Company and
reasonably satisfactory in form and substance to the Company's counsel, to the
effect that the Proposed transfer of the Restricted Securities may be effected
without registration under the Securities Act, or (ii) a "No Action" letter from
the Commission to the effect that the transfer of such securities without
registration will not result in a recommendation by the staff of the Commission
that action be taken with respect thereto, whereupon the holder of such
Restricted Securities shall be entitled to transfer such Restricted Securities
in accordance with the terms of the notice delivered by the holder to the
Company; provided, however, that no opinion or No Action letter need be obtained
-------- -------
with respect to a transfer to (A) a partner, active or retired, of a holder of
Restricted Securities, (B) the estate of any such partner, (C) the spouse,
children, grandchildren or spouse of such children or grandchildren of any
holder or to trusts for the benefit of any holder or such persons, or (D) a
parent or subsidiary
-3-
corporation of a holder, or a corporation which has the same parent corporation
as a holder, provided that in such cases the transferee agrees in writing to be
subject to the terms hereof. Each certificate evidencing the Restricted
Securities transferred as above provided shall bear the appropriate restrictive
legends described above, except that such certificate shall not bear any such
restrictive legend if in the opinion of counsel for the Company such legend is
not required.
1.5 Requested Registration.
----------------------
(a) Requested for Registration. If at any time after the first to
--------------------------
occur of (i) November 30, 1999 or (ii) the closing of the Company's initial
registered public offering, the Company shall receive from any Holder or group
of Holders of Registrable Securities, representing not less than 30% of the
Registrable Securities then outstanding (assuming conversion of all shares of
the Preferred then outstanding), a written request that the Company effect any
registration, qualification or compliance with respect to all or a part of the
Registrable Securities, the anticipated gross offering price of which would
exceed $15,000,000, the Company will:
(x) promptly give written notice of the proposed registration,
qualification, or compliance to all other Holders; and
(y) as soon as practicable, use its best efforts to effect, following
receipt of such request, such registration, qualification or compliance
(including, without limitation, the execution of an undertaking to file post-
effective amendments, appropriate qualification under applicable blue sky or
other state securities laws and appropriate compliance with applicable
regulations issued under the Securities Act and any other governmental
requirements or regulations) as may be so requested and as would permit or
facilitate the sale and distribution of all or such portion of such Registrable
Securities as are specified in such request, together with all or such portion
of the Registrable Securities of any Holder or Holders joining in such request
as are specified in a written request received by the Company within 15 days
after receipt of such written notice from the Company; provided, however, that
-------- -------
the Company shall not be obligated to take any action to effect any such
registration, qualification or compliance pursuant to this Section:
(A) for so long as any shares of Series C Preferred are
outstanding, unless such request is first approved in writing by at least two-
thirds of the shares of the then outstanding Series C Preferred;
(B) in any particular 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 and except as may be required by the Securities
Act;
(C) prior to 90 days immediately following the effective date of
any registration statement pertaining to securities of the Company (other than a
registration of securities in a Rule 145 transaction or with respect to an
employee benefit plan);
-4-
(D) after the Company has effected two (2) such registrations
pursuant to this Section, such registrations have been declared or ordered
effective and the securities offered pursuant to such registrations have been
sold.
Subject to the foregoing clauses, the Company shall file a registration
statement covering the Registrable Securities so requested to be registered as
soon as practicable after receipt of the request or requests of any Holder or
Holders. If, however, the Company shall furnish to the Holder or Holders
requesting a registration statement pursuant to this Section 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 shareholders for such registration statement to be filed and
it is therefore essential to defer the filing of such registration statement,
the Company shall have the right to defer such filing for a period of not more
than 90 days after receipt of the request of the Holder or Holders requesting
such registration; provided, however, that the Company may not utilize this
-------- -------
right more than once in any 12-month period.
(b) Underwriting. If the Holders intend to distribute the Registrable
------------
Securities covered by their request by means of an underwriting, they shall so
advise the Company as a part of their request and the Company shall include such
information in its written notice to the other Holders. The right of any Holder
to registration pursuant to this Section shall be conditioned upon such Holder's
participation in such underwriting and the inclusion of such Holder's
Registrable Securities in the underwriting to the extent provided herein.
The Company shall (together with all Holders proposing to distribute their
securities through such underwriting) enter into an underwriting agreement in
customary form with the managing underwriter selected for such underwriting by
the Holders of a majority of the Registrable Securities proposed by such Holders
to be distributed through such underwriting. Notwithstanding any other
provision of this Section, if the managing underwriter advises the Holders in
writing that marketing factors require a limitation of the number of shares to
be underwritten, then, subject to the provisions of Section 1.5(a), the Company
shall so advise all Holders and the number of shares of Registrable Securities
that may be included in the registration and underwriting shall be allocated
first among all Holders of Series C Preferred requesting inclusion in the
registration on a pro rata basis, and then, to the extent all such shares have
not been fully allocated to the Holders of Series C Preferred, among any holders
of Series B Preferred requesting inclusion in the registration in proportion, as
nearly as practicable, to the respective amounts of Registrable Securities
originally requested by such Holders of Series B Preferred to be included in the
registration statement. No Registrable Securities excluded from the
underwriting by reason of the managing underwriter's marketing limitation shall
be included in such registration.
If the managing underwriter has not limited the number of Registrable
Securities to be underwritten, the Company may include securities for its own
account or for the account of others in such registration if the underwriter so
agrees and if the number of Registrable Securities which would otherwise have
been included in such registration and underwriting will not thereby be limited,
and provided that the Company or the other selling shareholders shall bear an
equitable share of the Registration Expenses in connection with such
registration and underwriting.
-5-
If any Holder of Registrable Securities disapproves of the terms of the
underwriting, such person may elect to withdraw therefrom by written notice to
the Company, the managing underwriter and the other Holders. The Registrable
Securities and/or other securities so withdrawn shall also be withdrawn from
registration; provided, however, that if by the withdrawal of such Registrable
-------- -------
Securities a greater number of Registrable Securities held by other Holders may
be included in such registration (up to the maximum of any limitation imposed by
the underwriters), then the Company shall offer to all Holders who have included
Registrable Securities in the registration the right to include additional
Registrable Securities in the same proportion used in determining the
underwriter limitation in this Section. If the registration does not become
effective due to the withdrawal of Registrable Securities, then either (1) the
Holders requesting registration shall reimburse the Company for expenses
incurred in complying with the request, or (2) the aborted registration shall be
treated as effected for purposes of Section 1.5(a)(D).
1.6 Company Registration.
--------------------
(a) Notice of Registration. If the Company shall determine to
----------------------
register any of its securities, either for its own account or the account of a
security holder or holders exercising their respective demand registration
rights, other than: (i) the Company's initial registered public offering of
shares for its own account; (ii) a registration relating solely to employee
benefit plans; or (iii) a registration relating solely to a transaction pursuant
to Rule 145 promulgated under the Securities Act; the company will:
(x) promptly give to each Holder written notice thereof; and
(y) include in such registration (and any related qualification
under blue sky laws or other compliance), and in any underwriting involved
therein, all the Registrable Securities specified in a written request or
requests, made within 15 days after receipt of such written notice from the
Company, by and Holder or Holders; provided, however, that the Company's
-------- -------
obligation under this Section 1.6 shall terminate after the Company has effected
two (2) such registrations pursuant to which the Holders have been provided with
the opportunity to register their Registrable Securities under this Section,
such registrations have been declared or ordered effective and the securities
offered pursuant to such registrations have been sold.
(b) Cut-back and Allocation. Notwithstanding any other provision of
-----------------------
this Section, if the managing underwriter determines that marketing factors
require a limitation of the number of shares to be underwritten, the managing
underwriter may limit the number of Registrable Securities to be included in the
registration and underwriting; provided, however, that any such limitation shall
-------- -------
not prevent the Holders of Registrable Securities requesting to be included in
such registration from including Registrable Securities representing up to 20%
of the total number of shares and provided, further, that any such limitation
-------- -------
shall be applied to all other selling shareholders prior to application to the
Holders. In such event, the Company shall so advise all Holders of Registrable
Securities which would otherwise be registered and underwritten pursuant hereto,
and the number of shares of Registrable Securities that may be included in the
registration and underwriting shall be allocated first among the Holders of
Series C Preferred on a pro rata basis, and then, to the extent all such
-6-
shares have not been fully allocated to the Holders of Series C Preferred, to
the Holders of Series B Preferred on a pro rata basis. If any Holder disapproves
of the terms of any such underwriting, such Holder may elect to withdraw
therefrom by written notice to the Company and the managing underwriter. Any
Registrable Securities excluded or withdrawn from such underwriting shall be
withdrawn from such registration.
(c) The Company shall have the right to terminate or withdraw any
registration initiated by it under this Section prior to the effectiveness of
such registration whether or not any Holder has elected to include securities in
such registration.
1.7 Registration on Form S-3. The Company shall use its best efforts to
------------------------
qualify for registration on Form S-3, and to that end, the Company shall comply
with the reporting requirements of the Exchange Act. After the Company has
qualified for the use of Form S-3, each Holder shall have the right to request
an unlimited number of registrations on Form S-3 (such requests shall be in
writing and shall state the number of shares of Registrable Securities to be
disposed of and the intended method of disposition of such shares by each such
Holder), subject to the following limitations:
(i) the Company shall not be obligated to cause a registration
on Form S-3 to become effective prior to 90 days following the effective date of
a Company-initiated registration (other than a registration effected solely to
qualify an employee benefit plan or to effect a business combination pursuant to
Rule 145);
(ii) the Company shall not be obligated to cause a registration
on Form S-3 to become effective prior to expiration of 90 days following the
effective date of the most recent registration pursuant to a request under
Section 5 of this Agreement or pursuant to a request by a holder of registration
rights under any other agreement of the Company granting Form S-3 demand
registration rights;
(iii) the Company shall not be required to effect a registration
on Form S-3 unless the Holder or Holders requesting registration propose to
dispose of shares of Registrable Securities having an aggregate disposition
price (before deduction of underwriting discounts and expenses of sale) of at
least $1,000,000; and
(iv) the Company shall not be required to maintain and keep any
such registration on Form S-3 effective for a period equal to the shorter of (x)
30 days, or (y) that time reasonably necessary to permit the disposition of the
Registrable Securities subject to such registration. The Company shall give
notice to all Holders of the receipt of a request for registration pursuant to
this Section and shall provide a reasonable opportunity for all such other
Holders, to participate in the registration. Subject to the foregoing, the
Company will use its best efforts to effect promptly the registration of all
shares of Registrable Securities on Form S-3 to the extent requested by the
Holder or Holders thereof for purposes of disposition.
-7-
1.8 Expenses of Registration. All Registration Expenses incurred in
------------------------
connection with any registration, qualification or compliance pursuant to
Section 1.5, Section 1.6, or Section 1.7 shall be borne by the Company. All
Selling Expenses relating to securities registered by the Holders shall be borne
by the Holders of such securities pro rata on the basis of the number of shares
so registered. Notwithstanding the foregoing, the Company shall not be required
to pay for Registration Expenses pursuant to Section 1.5 if the registration
request is subsequently withdrawn at the request of the Holders of a majority of
the Registrable Securities to be registered (which Holders shall bear such
expenses), unless the Holders of a majority of the Registrable Securities agree
to forfeit their right to one demand registration pursuant to Section 1.5;
provided, however, that if at the time of such withdrawal, the holders have
-------- -------
learned of a material adverse change in the condition, business or prospects of
the Company from that known to the Holders at the time of their request, then
the Holders shall not be required to pay any of such Registration Expenses and
shall retain their rights pursuant to Section 1.5.
1.9 Registration Procedures. In the case of each registration,
-----------------------
qualification or compliance effected by the Company pursuant to this Agreement,
the Company will keep each Holder advised in writing as to the initiation of
each registration, qualification and compliance and as to the completion
thereof. At its expense the Company will furnish such number of prospectuses
and other documents incident thereto as a Holder from time to time may
reasonably request.
1.10 Termination of Registration Rights. The registration rights granted
----------------------------------
pursuant to this Agreement shall terminate as to any Holder of less than 100,000
shares of Registrable Securities, at such time after the Company's initial
public offering as the Registrable Securities held by such Holder may be sold
within any three month period pursuant to Rule 144(k); and as to any Holder of
100,000 or more shares of Registrable Securities, on the third anniversary of
the date on which the Company first becomes subject to the reporting
requirements under Section 12 of the Securities Exchange Act of 1934, as
amended.
1.11 Lock-up Agreement. In consideration for the Company agreeing to its
-----------------
obligations under this Agreement, each Holder of Registrable Securities and each
transferee pursuant to Section 1.15 hereof agrees (but only if each officer and
director of the Company also agrees), in connection with the first registration
of the Company's securities, upon request of the Company or the underwriters
managing any underwritten offering of the Company's securities, not to sell,
make any short sale of, loan, grant any option for the purchase of or otherwise
dispose of any securities of the Company (other than those included in the
registration) without the prior written consent of the Company or such
underwriters, as the case may be, for such period of time (not to exceed 180
days) from the effective date of such registration as the Company or the
underwriters may specify. Each Holder agrees that the Company may instruct its
transfer agent to place stop-transfer notations in its records to enforce the
provisions of this Section. This Section 1.11 shall supersede any conflicting
provision of Section 1.5 or Section 1.7 above.
-8-
1.12 Indemnification.
---------------
(a) The Company will indemnify each Holder, each of its officers,
directors and partners and such Holder's legal counsel and independent
accountants, and each person controlling such Holder within the meaning of
Section 15 of the Securities Act, with respect to which registration,
qualification or compliance has been effected pursuant to this Agreement, and
each underwriter, if any, and each person who controls any underwriter within
the meaning of Section 15 of the Securities Act, against all expenses, claims,
losses, damages and liabilities (or actions in respect thereof), including any
of the foregoing incurred in settlement of any litigation, commenced or
threatened, arising out of or based on any untrue statement (or alleged untrue
statement) of a material fact contained in any registration statement,
prospectus, offering circular or other document, or any amendment or supplement
thereto, incident to any such registration, qualification or compliance, or
based on any omission (or alleged omission) to state therein a material fact
required to be stated therein or necessary to make the statements therein, in
light of the circumstances in which they were made, not misleading, or any
violation by the Company of the Act or the Exchange Act or securities act of any
state or any rule or regulation thereunder, and relating to action or inaction
required of the Company in connection with any such registration, qualification
or compliance, and will reimburse each such Holder, each of its officers,
directors and partners and such Holder's legal counsel and independent
accountants, and each person controlling such Holder, each such underwriter and
each person who controls any such underwriter, for any legal and any other
expenses reasonably incurred in connection with investigating, preparing or
defending any such claim, loss, damage, liability or action, provided that the
Company will not be liable in any such case to the extent that any such claim,
loss, damage, liability or expense arises out of or is based on any untrue
statement or omission or alleged untrue statement or omission, made in reliance
upon and in conformity with written information furnished to the Company by an
instrument duly executed by such Holder or underwriter and stated to be
specifically for use therein; and provided, further, that the Company will not
-------- -------
be liable to any such person or entity with respect to any such untrue statement
or omission or alleged untrue statement or omission made in any preliminary
prospectus that is corrected in the final prospectus filed with the Commission
pursuant to Rule 424(b) promulgated under the Securities Act (or any amendment
or supplement to such prospectus) if the person asserting any such loss, claim,
damage or liability purchased securities but was not sent or given a copy of the
prospectus (as amended or supplemented) at or prior to the written confirmation
of the sale of such securities to such person in any case where such delivery of
the prospectus (as amended or supplemented) was a result of the Company's
failure to provide such prospectus (as amended or supplemented).
(b) Each Holder will, severally and not jointly, if Registrable
Securities held by such Holder are included in the securities as to which such
registration, qualification or compliance is being effected, indemnify the
Company, each of its directors and officers and its legal counsel and
independent accountants, each underwriter, if any, of the Company's securities
covered by such a registration statement, each person who controls the Company
or such underwriter within the meaning of Section 15 of the Securities Act, and
each other such Holder, each of its officers, directors and partners and each
person controlling such Holder within the meaning of Section 15 of the
Securities Act, against all claims, losses, damages and liabilities (or actions
in respect thereof)
-9-
arising out of or based on any untrue statement (or alleged untrue statement) of
a material fact contained in any such registration statement, prospectus,
offering circular or other document, or any omission (or alleged omission) to
state therein a material fact required to be stated therein or necessary to make
the statements therein not misleading, and will reimburse the Company, such
Holders, such directors, officers, legal counsel, independent accountants,
underwriters or control persons for any legal or any other expenses reasonably
incurred in connection with investigating or defending any such claim, loss,
damage, liability or action, in each case to the extent, but only to the extent,
that such untrue statement (or alleged untrue statement) or omission (or alleged
omission) is made in such registration statement, prospectus, offering circular
or other document in reliance upon and in conformity with written information
furnished to the Company by an instrument duly executed by such Holder and
stated to be specifically for use therein; provided, however, that the
-------- -------
obligations of such Holders hereunder shall be limited to an amount equal to the
proceeds, net of underwriting discounts and commissions but not expenses, to
each such Holder of Registrable Securities sold as contemplated herein.
(c) Each party entitled to indemnification under this Section (the
"Indemnified Party") shall give notice to the party required to provide
indemnification (the "Indemnifying Party") promptly after such Indemnified Party
has actual knowledge of any claim as to which indemnity may be sought, and shall
permit the Indemnifying Party to assume the defense of any such claim or any
litigation resulting therefrom, provided that counsel for the Indemnifying
Party, who shall conduct the defense of such claim or litigation, shall be
approved by the Indemnified Party (whose approval shall not be unreasonably
withheld), and the Indemnified Party may participate in such defense at such
party's expense, and provided further that the failure of any Indemnified Party
-------- -------
to give notice as provided herein shall not relieve the Indemnifying Party of
its obligations under this Agreement, except to the extent, but only to the
extent, that the Indemnifying Party's ability to defend against such claim or
litigation is impaired as a result of such failure to give notice. No
Indemnifying Party, in the defense of any such claim or litigation, shall,
except with the consent of each Indemnified Party, consent to entry of any
judgment or enter into any settlement which does not include as an unconditional
term thereof the giving by the claimant or plaintiff to such Indemnified Party
of a release from all liability in respect to such claim or litigation.
(d) If the indemnification provided for in this Section 1.12 is held
by a court of competent jurisdiction to be unavailable to an indemnified party
with respect to any loss, liability, claim, damage, or expense referred to
therein, then the indemnifying party, in lieu of indemnifying such indemnified
party hereunder, shall contribute to the amount paid or payable by such
indemnified party as a result of such loss, liability, claim, damage, or expense
in such proportion as is appropriate to reflect the relative fault of the
indemnifying party on the one hand and of the indemnified party on the other in
connection with the statements or omissions that resulted in such loss,
liability, claim, damage, or expense as well as any other relevant equitable
considerations. The relative fault of the indemnifying party and of the
indemnified party shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission to state a material fact relates to information supplied by the
indemnifying party or by the indemnified party and the parties' relative intent,
knowledge, access to information, and opportunity to correct or prevent such
statement or omission. In no event shall any contribution by a Holder
-10-
under this Section 1.12(d) exceed the proceeds, net of underwriting discounts
and commissions but not expenses, from the offering received by such Holder.
1.13 Information by Holder. The Holder or Holders of Registrable
---------------------
Securities included in any registration shall furnish to the Company such
information regarding such Holder or Holders and the distribution proposed by
such Holder or Holders as the Company may request in writing and as shall be
required in connection with any registration, qualification or compliance
referred to in this Agreement.
1.14 Rule 144 Reporting. With a view to making available the benefits of
------------------
certain rules and regulations of the Commission which may at any time permit the
sale of the Restricted Securities to the public without registration, after such
time as a public market exists for the Common Stock of the Company, the Company
agrees to use its best efforts to:
(a) make and keep public information available, as those terms are
understood and defined in Rule 144 promulgated under the Securities Act, at all
times after the effective date of the first registration under the Securities
Act filed by the Company for an offering of its securities to the general
public;
(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
(at any time after it has become subject to such reporting requirements); and
(c) furnish to Holders upon request a written statement as to its
compliance with the reporting requirements of Rule 144 (at any time after 90
days after the effective date of the first registration statement filed by the
Company for an offering of its securities to the general public), and of the
Securities Act and the Exchange Act (at any time after it has become subject to
such reporting requirements), a copy of the most recent annual or quarterly
report of the Company, and such other reports and documents of the Company as a
Holder may reasonably request in availing itself of any rule or regulation of
the Commission allowing such Holder to sell any such securities without
registration.
1.15 Transfer of Rights. Provided that the Company is given prior written
------------------
notice of such assignment, the rights granted hereunder to cause the Company to
register securities may be assigned to (i) a transferee or assignee who acquires
at least 50,000 shares of Registrable Securities (appropriately adjusted for
stock splits, recapitalizations and like after the date hereof) and (ii) any
affiliate or constituent partner of a Purchaser.
SECTION 2.
Information Rights
------------------
2.1 Financial Statements and Reports to Shareholders. The Company will
------------------------------------------------
maintain true books and records of accounts in which full and correct entries
will be made of all its business
-11-
transactions pursuant to a system of accounting established and administered in
accordance with generally accepted accounting principles consistently applied,
and will set aside on its books all such proper accruals and reserves as shall
be required under generally accepted accounting principles consistently applied.
A Holder of 125,000 shares of the Company's originally issued Series C Preferred
Stock shall be entitled to receive such interim financial statements as are
prepared for the Company's Board of Directors. As long as a Holder of Series B
Preferred (together with any affiliate thereof) or a transferee permitted under
Section 1.15 hereof holds not less than 500,000 shares of the Company's
originally issued Series B Preferred or Common Stock issued upon conversion
thereof, or as long as a Holder of Series C Preferred (together with any
affiliate thereof) or a transferee permitted under Section 1.15 hereof holds not
less than 62,500 shares of the Company's originally issued Series C Preferred or
Common Stock issued upon conversion thereof, the Company will deliver to such
Purchasers:
(a) As soon as practicable after the end of each fiscal year of the
Company, and in any event within 90 days thereafter, an audited consolidated
balance sheet of the Company and its subsidiaries, if any, as of the end of such
year and audited consolidated statements of income, shareholders' equity and
cash flows for such year, which year-end financial reports shall be in
reasonable detail prepared in accordance with generally accepted accounting
procedures and shall be accompanied by the opinion of independent public
accountants of recognized national standing selected by the Company; and
(b) As soon as practicable after the end of the first, second and
third quarterly accounting periods in each fiscal year of the Company and in any
event within 45 days thereafter, (i) a consolidated balance sheet of the Company
and its subsidiaries, if any, as of the end of each such quarterly period, (ii)
consolidated statements of income and cash flows of the Company and its
subsidiaries, if any, for such period and for the current fiscal year to date,
all prepared in accordance with generally accepted accounting principles, all in
reasonable detail, subject to changes resulting from year-end audit adjustments,
and signed by the principal financial or accounting officer of the Company.
(c) Each Holder agrees that any information obtained by the Holder
pursuant to this Section which is reasonably perceived to be proprietary to the
Company or otherwise confidential will not, unless such Holder shall otherwise
be required by law or the rules of any national securities exchange or
association, be disclosed without the prior written consent of the Company.
Each Holder further acknowledges and understands that any information will not
be utilized by the Holder in connection with purchases and sales of the
Company's securities except in compliance with applicable state and federal
antifraud statutes.
2.2 Use of Information; Termination of Covenants. No Holder shall enter
--------------------------------------------
into any transaction for the purchase or sale of any securities of the Company
with any other person unless such Holder has made any material information
actually obtained by such Holder pursuant to this Section 2 available to such
other person. The covenants of the Company and the Holders set forth in this
Section 2 shall be terminated and be of no further force or effect upon the
earlier of (a) the date when a Registration Statement filed by the Company under
the Securities Act, in connection with the
-12-
first public offering of its securities (other than either a public offering
limited solely to employees of the Company or an offering pursuant to Rule 145
under the Securities Act) becomes effective and (b) the date the Company
registers any securities under the Securities Exchange Act of 1934 (the "1934
Act"), and such covenants shall terminate as to any Holder as of the date such
Holder no longer holds any shares of the capital stock of the Company.
SECTION 3.
Right of Participation
----------------------
3.1 Purchasers' Right of Participation.
----------------------------------
(a) Right of Participation. Subject to the terms and conditions
----------------------
contained in this Section 3.1, the Company hereby grants to each holder of not
less than 500,000 shares of the Company's originally issued Series B Preferred
or Common Stock issued upon conversion thereof and each holder of Series C
Preferred or Common Stock issued upon conversion thereof (each a "Major
Purchaser") the right of participation to purchase its Pro Rata Portion of any
New Securities (as defined in subsection 3.1(b)) which the Company may, from
time to time, propose to sell and issue. A Major Purchaser's "Pro Rata Portion"
for purposes of this Section 3.1 is the ratio that (x) the sum of the number of
shares of the Company's Common Stock then held by such Major Purchaser and the
number of shares of the Company's Common Stock issuable upon conversion of the
Preferred Stock then held by such Major Holder, bears to (y) the sum of the
total number of shares of the Company's Common Stock then outstanding, the
number of shares of the Company's Common Stock issuable upon the exercise of any
issued and outstanding rights, options or warrants, and the number of shares of
the Company's Common Stock issuable upon conversion of the then outstanding
Preferred Stock.
(b) Definition of New Securities. Except as set forth below, "New
----------------------------
Securities" shall mean any shares of capital stock of the Company, including
Common Stock and Preferred Stock, whether authorized or not, and rights, options
or warrants to purchase said shares of Common Stock or Preferred Stock, and
securities of any type whatsoever that are, or may become, convertible into said
shares of Common Stock or Preferred Stock. Notwithstanding the foregoing, "New
Securities" does not include (i) the Common Shares or the Series A Preferred
Stock, Series B Preferred Stock or Series C Preferred Stock or any shares of
Common Stock issued upon conversion thereof, (ii) securities offered to the
public generally pursuant to a registration statement under the Securities Act,
(iii) securities issued pursuant to the acquisition of another corporation by
the Company by merger, purchase of substantially all of the assets or shares or
other reorganization whereby the Company or its shareholders own not less than a
majority of the voting power of the surviving or successor corporation, (iv)
shares of the Company's Common Stock or related options or warrants convertible
into or exercisable for such Common Stock issued to employees, officers and
directors of, and consultants to, the Company, pursuant to any arrangement
approved by the Board of Directors of the Company, (v) shares of the Company's
Common Stock or related options convertible into or exercisable for such Common
Stock issued to banks, commercial lenders, lessors and other
-13-
financial institutions in connection with the borrowing of money or the leasing
of equipment by the Company, (vi) stock issued pursuant to any rights or
agreements, including, without limitation, convertible securities, options and
warrants, provided that the Company shall have complied with the rights of
participation established by this Section 3.1 with respect to the initial sale
or grant by the Company of such rights or agreements, or (vii) stock issued in
connection with any stock split, stock dividend or recapitalization by the
Company.
(c) Notice of Right. In the event the Company proposes to undertake
---------------
an issuance of New Securities, it shall give each Major Purchaser written notice
of its intention, describing the type of New Securities and the price and terms
upon which the Company proposes to issue the same. Each Major Purchaser shall
have twenty (20) days from the date of receipt of any such notice to agree to
purchase shares of such New Securities (up to the amount referred to in
subsection 3.1(a)), for the price and upon the terms specified in the notice, by
giving written notice to the Company and stating therein the quantity of New
Securities to be purchased.
(d) Exercise of Right. If any Major Purchaser exercises its right of
-----------------
participation under this Agreement, the closing of the purchase of the New
Securities with respect to which such right has been exercised shall take place
within fifteen (15) calendar days after the Major Purchaser gives notice of such
exercise, which period of time shall be extended in order to comply with
applicable laws and regulations. Upon exercise of such right of participation,
the Company and the Major Purchaser shall be legally obligated to consummate the
purchase contemplated thereby and shall use their best efforts to secure any
approvals required in connection therewith.
(e) Lapse and Reinstatement of Right. In the event a Major Purchaser
--------------------------------
fails to exercise the right of participation provided in this Section 3.1 within
said twenty (20) day period, the Company shall have ninety (90) days thereafter
to sell or enter into an agreement (pursuant to which the sale of New Securities
covered thereby shall be closed, if at all, within sixty (60) days from the date
of said agreement) to sell the New Securities not elected to be purchased by
such Major Purchaser at the price and upon the terms no more favorable to the
Major Purchasers of such securities than specified in the Company's notice. In
the event the Company has not sold the New Securities or entered into an
agreement to sell the New Securities within said ninety (90) day period (or sold
and issued New Securities in accordance with the foregoing within sixty (60)
days from the date of said agreement), the Company shall not thereafter issue or
sell any New Securities without first offering such securities to the Major
Purchasers in the manner provided above.
(f) Assignment. The right of the Major Purchasers to purchase any
----------
part of the New Securities may be assigned in whole or in part to any partner,
subsidiary, affiliate or shareholder of a Major Purchaser, or other persons or
organizations who acquire the lesser of (i) 50,000 or more shares of Restricted
Securities (as adjusted for stock splits and the like) or (ii) all of the
Restricted Securities then owned by such Major Purchaser.
(g) Termination of Participation Right. The rights of participation
----------------------------------
granted under Section 3.1 of this Agreement shall terminate on and be of no
further force or effect upon the earlier of (i) the consummation of the
Company's sale of its Common Stock in an underwritten public
-14-
offering pursuant to an effective registration statement filed under the
Securities Act immediately subsequent to which the Company shall be obligated to
file annual and quarterly reports with the Commission pursuant to Section 13 or
1.5(d) of the Exchange Act or (ii) the registration by the Company of a class of
its equity securities under Section 12(b) or 12(g) of the Exchange Act.
4. Governing Law. This Agreement shall be governed by and interpreted in
-------------
accordance with the laws of the State of California, without regard to choice of
law provisions. The parties hereto agree to submit to the jurisdiction of the
federal and state courts of the State of California with respect to the breach
or interpretation of this Agreement or the enforcement of any and all rights,
duties, liabilities, obligations, powers and other relations between the parties
arising under this Agreement.
5. Entire Agreement. This Agreement constitutes the full and entire
----------------
understanding among the parties regarding the subject matter herein. Except as
otherwise expressly provided herein, the provisions hereof shall inure to the
benefit of, and be binding upon, the successors, assigns, heirs, executors and
administrators of the parties hereto.
6. Notices, etc. All notices and other communications required or permitted
------------
hereunder shall be in writing and shall be deemed effectively given upon
delivery to the party to be notified in person or by courier service or five (5)
days after deposit with the United States mail, by registered or certified mail,
postage prepaid, addressed (a) if to a holder of any Registrable Securities, to
such address as such holder shall have furnished the Company in writing, or,
until any such holder so furnishes an address to the company, then to and at the
address of the last holder of such securities who has so furnished an address to
the Company, or (b) if to the Company, to its address set forth on the first
page of this Agreement and addressed to the attention of the Chief Financial
Officer, or at such other address as the Company shall have furnished to the
Holders in writing. If such notice requires or solicits a response from such
party, the notice shall include the time limit within which the response must be
received and the consequences of not responding within such time limit.
7. Amendment. Any provision of this Agreement may be amended, waived or
---------
modified upon the written consent of (i) the Company, (ii) holders of greater
than 50% of the then outstanding shares of Series B Preferred or Common Stock
issued upon conversion thereof, and (iii) holders of at least 66-2/3% of the
then outstanding shares of Series C Preferred or Common Stock issued upon
conversion thereof. Any Holder may waive any of his or her rights or the
Company's obligations hereunder without obtaining the consent of any other
person.
8. Limitations on Subsequent Registration Rights. From and after the date of
---------------------------------------------
this Agreement, the Company shall not enter into any agreement granting any
holder or prospective holder of any securities of the Company registration
rights with respect to such securities without the prior written consent of (i)
the Company, (ii) holders of greater than 50% of the then outstanding shares of
Series B Preferred or Common Stock issued upon conversion thereof, and (iii)
holders of at least 66-2/3% of the then outstanding shares of Series C Preferred
or Common Stock issued upon conversion thereof unless (1) such new registration
rights, including standoff obligations, are on a pari passu basis with those
---- -----
rights of the Holders hereunder, or (2) such new registration rights, including
standoff obligations, are subordinate to the registration rights granted the
Holders
-15-
hereunder; provided, however, that the inclusion of such holder's securities
-------- -------
shall not reduce the amount of Registrable Securities which are included in any
registration for which the Holders hold registration rights pursuant to this
Agreement.
9. Supersession of Prior Agreement. This Agreement shall supersede in its
-------------------------------
entirety that certain Prior Agreement. By execution of this Agreement, each
party to the Prior Agreement waives any rights of first refusal it may otherwise
have had under Section 4 of the Prior Agreement (including any rights to prior
notice) with respect to the Company's sale of up to 1,500,000 shares of its
Series C Preferred Stock pursuant to that certain Series C Preferred Stock
Purchase Agreement dated on or around the date hereof. This Agreement shall be
effective at such time as Holders representing a majority in interest of the
Series B Preferred Stock outstanding at the date of this Agreement shall have
executed and delivered a signed counterpart of this Agreement.
10. Counterparts. This Agreement may be executed in any number of
------------
counterparts, each of which shall be an original and all of which together shall
constitute one instrument.
-16-
[AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT]
IN WITNESS WHEREOF, the undersigned have executed this Registration Rights
Agreement as of the date set forth above.
"COMPANY" PC-TEL, INC.
A California corporation
By: /s/ Xxxxx Xxxx
-------------------------------------
Xxxxx Xxxx, President &
Chief Executive Officer
"PURCHASERS OF SERIES C PREFERRED" AZTECH SYSTEMS LTD
--------------------------------------
(name of entity)
By: /s/ Xxxxxxx Xxx
-------------------------------------
(signature)
Xxxxxxx Xxx
--------------------------------------
(print name)
President/CEO
______________________________________
(title)
"PRIOR RIGHTS HOLDERS"
______________________________________
(name of entity)
By:
_____________________________________
(signature)
_____________________________________
(print name)
_______________________________________
(title)
-17-
[AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT]
IN WITNESS WHEREOF, the undersigned have executed this Registration Rights
Agreement as of the date set forth above.
"COMPANY" PC-TEL, INC.
A California corporation
By: /s/ Xxxxx Xxxx
-------------------------------------
Xxxxx Xxxx, President &
Chief Executive Officer
"PURCHASERS OF SERIES C PREFERRED" WK Technology Fund
-------------------------------------
(name of entity)
By: /s/ Xxx Xxxxx Ko
-------------------------------------
(signature)
Xxx Xxxxx Ko
-------------------------------------
(print name)
Chairman
-------------------------------------
(title)
"PRIOR RIGHTS HOLDERS" WK Technology Fund
-------------------------------------
(name of entity)
By: /s/ Xxx Xxxxx Ko
-------------------------------------
(signature)
Xxx Xxxxx Ko
-------------------------------------
(print name)
Chairman
-------------------------------------
(title)
-18-
[AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT]
IN WITNESS WHEREOF, the undersigned have executed this Registration Rights
Agreement as of the date set forth above.
"COMPANY" PC-TEL, INC.
A California corporation
By: /s/ Xxxxx Xxxx
--------------------------------------
Xxxxx Xxxx, President &
Chief Executive Officer
"PURCHASERS OF SERIES C PREFERRED" WK Technology Fund II
--------------------------------------
(name of entity)
By: /s/ Xxx Xxxxx Ko
--------------------------------------
(signature)
Xxx Xxxxx Ko
--------------------------------------
(print name)
Chairman
--------------------------------------
(title)
"PRIOR RIGHTS HOLDERS" WK Technology Fund II
--------------------------------------
(name of entity)
By: /s/ Xxx Xxxxx Ko
--------------------------------------
(signature)
Xxx Xxxxx Ko
--------------------------------------
(print name)
Chairman
--------------------------------------
(title)
-19-
[AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT]
IN WITNESS WHEREOF, the undersigned have executed this Registration Rights
Agreement as of the date set forth above.
"COMPANY" PC-TEL, INC.
A California corporation
By: /s/ Xxxxx Xxxx
-------------------------------------
Xxxxx Xxxx, President &
Chief Executive Officer
"PURCHASERS OF SERIES C PREFERRED" WK Technology Fund III
-------------------------------------
(name of entity)
By: /s/ Xxx Xxxxx Ko
-------------------------------------
(signature)
Xxx Xxxxx Ko
-------------------------------------
(print name)
Chairman
-------------------------------------
(title)
"PRIOR RIGHTS HOLDERS" WK Technology Fund III
-------------------------------------
(name of entity)
By: /s/ Xxx Xxxxx Ko
-------------------------------------
(signature)
Xxx Xxxxx Ko
-------------------------------------
(print name)
Chairman
-------------------------------------
(title)
-20-
[AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT]
IN WITNESS WHEREOF, the undersigned have executed this Registration Rights
Agreement as of the date set forth above.
"COMPANY" PC-TEL, INC.
A California corporation
By: /s/ Xxxxx Xxxx
--------------------------------------
Xxxxx Xxxx, President &
Chief Executive Officer
"PURCHASERS OF SERIES C PREFERRED" POWER WORLD FUND, INC.
--------------------------------------
(name of entity)
By: /s/ Dr. Xxxxx Xxxxx
--------------------------------------
(signature)
Dr. Xxxxx Xxxxx
--------------------------------------
(print name)
Chairman
--------------------------------------
(title)
"PRIOR RIGHTS HOLDERS"
______________________________________
(name of entity)
By:
______________________________________
(signature)
______________________________________
(print name)
______________________________________
(title)
-21-
[AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT]
IN WITNESS WHEREOF, the undersigned have executed this Registration Rights
Agreement as of the date set forth above.
"COMPANY" PC-TEL, INC.
A California corporation
By: /s/ Xxxxx Xxxx
--------------------------------------
Xxxxx Xxxx, President &
Chief Executive Officer
"PURCHASERS OF SERIES C PREFERRED" E-Tech, Inc.
--------------------------------------
(name of entity)
By: /s/ Xxxxx-Xxx Su
--------------------------------------
(signature)
Xxxxx-Xxx Su
--------------------------------------
(print name)
Senior Vice President
--------------------------------------
(title)
"PRIOR RIGHTS HOLDERS"
______________________________________
(name of entity)
By:
______________________________________
(signature)
______________________________________
(print name)
______________________________________
(title)
-22-
[AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT]
IN WITNESS WHEREOF, the undersigned have executed this Registration Rights
Agreement as of the date set forth above.
"COMPANY" PC-TEL, INC.
A California corporation
By: /s/ Xxxxx Xxxx
-------------------------------------
Xxxxx Xxxx, President &
Chief Executive Officer
"PURCHASERS OF SERIES C PREFERRED" DYNALINK INTERNATIONAL CORP.
--------------------------------------
(name of entity)
By: /s/ Sing Long Du
-------------------------------------
(signature)
SING LONG DU
--------------------------------------
(print name)
Director
--------------------------------------
(title)
"PRIOR RIGHTS HOLDERS"
______________________________________
(name of entity)
By:
______________________________________
(signature)
_______________________________________
(print name)
_______________________________________
(title)
-23-
[AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT]
IN WITNESS WHEREOF, the undersigned have executed this Registration Rights
Agreement as of the date set forth above.
"COMPANY" PC-TEL, INC.
A California corporation
By: /s/ Xxxxx Xxxx
-------------------------------------
Xxxxx Xxxx, President &
Chief Executive Officer
"PURCHASERS OF SERIES C PREFERRED"
--------------------------------------
(name of entity)
By: /s/ Sing-Long Du
-------------------------------------
(signature)
Sing-Long Du
--------------------------------------
(print name)
______________________________________
(title)
"PRIOR RIGHTS HOLDERS"
______________________________________
(name of entity)
By: /s/ Sing-Long Du
--------------------------------------
(signature)
/s/ Sing-Long Du
---------------------------------------
(print name)
_______________________________________
(title)
-24-
[AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT]
IN WITNESS WHEREOF, the undersigned have executed this Registration Rights
Agreement as of the date set forth above.
"COMPANY" PC-TEL, INC.
A California corporation
By: /s/ Xxxxx Xxxx
-------------------------------------
Xxxxx Xxxx, President &
Chief Executive Officer
"PURCHASERS OF SERIES C PREFERRED"
_____________________________________
(name of entity)
By: /s/ Cheng Xxxx Xxx
-------------------------------------
(signature)
Cheng Xxxx Xxx
--------------------------------------
(print name)
______________________________________
(title)
"PRIOR RIGHTS HOLDERS"
______________________________________
(name of entity)
By: /s/ Cheng Xxxx Xxx
--------------------------------------
(signature)
Cheng Xxxx Xxx
---------------------------------------
(print name)
_______________________________________
(title)
-25-
[AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT]
IN WITNESS WHEREOF, the undersigned have executed this Registration Rights
Agreement as of the date set forth above.
"COMPANY" PC-TEL, INC.
A California corporation
By: /s/ Xxxxx Xxxx
-------------------------------------
Xxxxx Xxxx, President &
Chief Executive Officer
"PURCHASERS OF SERIES C PREFERRED" /s/ Chin-Xxxx Xxxxx
--------------------------------------
(name of entity)
By: /s/ Chin-Xxxx Xxxxx
-------------------------------------
(signature)
Chin-Xxxx Xxxxx
--------------------------------------
(print name)
______________________________________
(title)
"PRIOR RIGHTS HOLDERS"
______________________________________
(name of entity)
By: /s/ Chin-Xxxx Xxxxx
--------------------------------------
(signature)
Chin-Xxxx Xxxxx
---------------------------------------
(print name)
_______________________________________
(title)
-26-
[AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT]
IN WITNESS WHEREOF, the undersigned have executed this Registration Rights
Agreement as of the date set forth above.
"COMPANY" PC-TEL, INC.
A California corporation
By: /s/ Xxxxx Xxxx
-------------------------------------
Xxxxx Xxxx, President &
Chief Executive Officer
"PURCHASERS OF SERIES C PREFERRED" /s/ Shiuh Xxxx Xxx
--------------------------------------
(name of entity)
By: /s/ Shiuh Xxxx Xxx
-------------------------------------
(signature)
Shiuh Xxxx Xxx
--------------------------------------
(print name)
______________________________________
(title)
"PRIOR RIGHTS HOLDERS"
______________________________________
(name of entity)
By: /s/ Shiuh Xxxx Xxx
--------------------------------------
(signature)
SHIUH XXXX XXX
---------------------------------------
(print name)
_______________________________________
(title)
-27-
[AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT]
IN WITNESS WHEREOF, the undersigned have executed this Registration Rights
Agreement as of the date set forth above.
"COMPANY" PC-TEL, INC.
A California corporation
By: /s/ Xxxxx Xxxx
-------------------------------------
Xxxxx Xxxx, President &
Chief Executive Officer
"PURCHASERS OF SERIES C PREFERRED"
______________________________________
(name of entity)
By: /s/ Lai Xxxx Xxx Xxxx
-------------------------------------
(signature)
Lai Xxxx Xxx Xxxx
--------------------------------------
(print name)
______________________________________
(title)
"PRIOR RIGHTS HOLDERS"
______________________________________
(name of entity)
By:
______________________________________
(signature)
______________________________________
(print name)
_______________________________________
(title)
-28-
[AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT]
IN WITNESS WHEREOF, the undersigned have executed this Registration Rights
Agreement as of the date set forth above.
"COMPANY" PC-TEL, INC.
A California corporation
By: /s/ Xxxxx Xxxx
-------------------------------------
Xxxxx Xxxx, President &
Chief Executive Officer
"PURCHASERS OF SERIES C PREFERRED"
______________________________________
(name of entity)
By: /s/ Xxxxx Xxxxx-Xxxxxx
-----------------------------------
(signature)
Xxxxx Xxxxx-Xxxxxx
-------------------------------------
(print name)
______________________________________
(title)
"PRIOR RIGHTS HOLDERS"
______________________________________
(name of entity)
By: /s/ Xxxxx Xxxxx-Xxxxxx
----------------------------------
(signature)
Xxxxx Xxxxx-Xxxxxx
--------------------------------------
(print name)
______________________________________
(title)
-29-
[AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT]
IN WITNESS WHEREOF, the undersigned have executed this Registration Rights
Agreement as of the date set forth above.
"COMPANY" PC-TEL, INC.
A California corporation
By: /s/ Xxxxx Xxxx
-------------------------------------
Xxxxx Xxxx, President &
Chief Executive Officer
"PURCHASERS OF SERIES C PREFERRED" Xxxxxx Xxxxxxxxx
---------------------------------------
(name of entity)
By: /s/ Xxxxxx Xxxxxxxxx
---------------------------------------
(signature)
Xxxxxx Xxxxxxxxx
---------------------------------------
(print name)
---------------------------------------
(title)
"PRIOR RIGHTS HOLDERS"
---------------------------------------
(name of entity)
By:
---------------------------------------
(signature)
---------------------------------------
(print name)
---------------------------------------
(title)
-30-
[AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT]
IN WITNESS WHEREOF, the undersigned have executed this Registration Rights
Agreement as of the date set forth above.
"COMPANY" PC-TEL, INC.
A California corporation
By: /s/ Xxxxx Xxxx
-------------------------------------
Xxxxx Xxxx, President &
Chief Executive Officer
"PURCHASERS OF SERIES C PREFERRED"
--------------------------------------
(name of entity)
By: /s/ Xxxxxxx X. Xxxxxxxx
-------------------------------------
(signature)
Xxxxxxx X. Xxxxxxxx
--------------------------------------
(print name)
--------------------------------------
(title)
"PRIOR RIGHTS HOLDERS"
--------------------------------------
(name of entity)
By:
--------------------------------------
(signature)
---------------------------------------
(print name)
---------------------------------------
(title)
-31-
[AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT]
IN WITNESS WHEREOF, the undersigned have executed this Registration Rights
Agreement as of the date set forth above.
"COMPANY" PC-TEL, INC.
A California corporation
By: /s/ Xxxxx Xxxx
-------------------------------------
Xxxxx Xxxx, President &
Chief Executive Officer
"PURCHASERS OF SERIES C PREFERRED"
-------------------------------------
(name of entity)
By: /s/ Xxxx Xxxxxxx
-------------------------------------
(signature)
Xxxx Xxxxxxx
-------------------------------------
(print name)
-------------------------------------
(title)
"PRIOR RIGHTS HOLDERS"
-------------------------------------
(name of entity)
By:
--------------------------------------
(signature)
--------------------------------------
(print name)
--------------------------------------
(title)
-32-
[AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT]
IN WITNESS WHEREOF, the undersigned have executed this Registration Rights
Agreement as of the date set forth above.
"COMPANY" PC-TEL, INC.
A California corporation
By: /s/ Xxxxx Xxxx
-------------------------------------
Xxxxx Xxxx, President &
Chief Executive Officer
"PURCHASERS OF SERIES C PREFERRED"
--------------------------------------
(name of entity)
By: /s/ Xxxxxxx Xxx
--------------------------------------
(signature)
Xxxxxxx Xxx
--------------------------------------
(print name)
--------------------------------------
(title)
"PRIOR RIGHTS HOLDERS"
--------------------------------------
(name of entity)
By:
--------------------------------------
(signature)
--------------------------------------
(print name)
--------------------------------------
(title)
-33-
[AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT]
IN WITNESS WHEREOF, the undersigned have executed this Registration Rights
Agreement as of the date set forth above.
"COMPANY" PC-TEL, INC.
A California corporation
By: /s/ Xxxxx Xxxx
-------------------------------------
Xxxxx Xxxx, President &
Chief Executive Officer
"PURCHASERS OF SERIES C PREFERRED" GANATERRA CORPORATION N.V.
-------------------------------------
(name of entity)
By: /s/ Xxxxxxx X. Xxxxxx
-------------------------------------
(signature)
Xxxxxxx X. Melina
--------------------------------------
(print name)
Attorney - in - Fact
--------------------------------------
(title)
"PRIOR RIGHTS HOLDERS"
______________________________________
(name of entity)
By:
______________________________________
(signature)
_______________________________________
(print name)
_______________________________________
(title)
-34-
[AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT]
IN WITNESS WHEREOF, the undersigned have executed this Registration Rights
Agreement as of the date set forth above.
"COMPANY" PC-TEL, INC.
A California corporation
By: /s/ Xxxxx Xxxx
-------------------------------------
Xxxxx Xxxx, President &
Chief Executive Officer
"PURCHASERS OF SERIES C PREFERRED"
______________________________________
(name of entity)
By: /s/ Xxxxxx X. Xxxxxxx
-------------------------------------
(signature)
Xxxxxx X. Xxxxxxx
--------------------------------------
(print name)
______________________________________
(title)
"PRIOR RIGHTS HOLDERS"
______________________________________
(name of entity)
By:
______________________________________
(signature)
_______________________________________
(print name)
_______________________________________
(title)
-35-
[AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT]
IN WITNESS WHEREOF, the undersigned have executed this Registration Rights
Agreement as of the date set forth above.
"COMPANY" PC-TEL, INC.
A California corporation
By: /s/ Xxxxx Xxxx
-------------------------------------
Xxxxx Xxxx, President &
Chief Executive Officer
"PURCHASERS OF SERIES C PREFERRED"
______________________________________
(name of entity)
By: /s/ Xxxxxxx X. Xxxxx
-------------------------------------
(signature)
Xxxxxxx X. Xxxxx
--------------------------------------
(print name)
______________________________________
(title)
"PRIOR RIGHTS HOLDERS"
______________________________________
(name of entity)
By:
______________________________________
(signature)
_______________________________________
(print name)
_______________________________________
(title)
-36-
[AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT]
IN WITNESS WHEREOF, the undersigned have executed this Registration Rights
Agreement as of the date set forth above.
"COMPANY" PC-TEL, INC.
A California corporation
By: /s/ Xxxxx Xxxx
-------------------------------------
Xxxxx Xxxx, President &
Chief Executive Officer
"PURCHASERS OF SERIES C PREFERRED" LEYCORP, INC.
--------------------------------------
(name of entity)
By: /s/ G.A. Xxxxxxxxxxx
-------------------------------------
(signature)
G.A. Xxxxxxxxxxx
--------------------------------------
(print name)
President
______________________________________
(title)
"PRIOR RIGHTS HOLDERS"
______________________________________
(name of entity)
By:
--------------------------------------
(signature)
---------------------------------------
(print name)
_______________________________________
(title)
-37-
[AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT]
IN WITNESS WHEREOF, the undersigned have executed this Registration Rights
Agreement as of the date set forth above.
"COMPANY" PC-TEL, INC.
A California corporation
By: /s/ Xxxxx Xxxx
-------------------------------------
Xxxxx Xxxx, President &
Chief Executive Officer
"PURCHASERS OF SERIES C PREFERRED"
______________________________________
(name of entity)
By: /s/ Xxxx X. Xxxxxx
-------------------------------------
(signature)
Xxxx X. Xxxxxx
--------------------------------------
(print name)
______________________________________
(title)
"PRIOR RIGHTS HOLDERS"
______________________________________
(name of entity)
By:
______________________________________
(signature)
_______________________________________
(print name)
_______________________________________
(title)
-38-
[AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT]
IN WITNESS WHEREOF, the undersigned have executed this Registration Rights
Agreement as of the date set forth above.
"COMPANY" PC-TEL, INC.
A California corporation
By: /s/ Xxxxx Xxxx
----------------------------------------
Xxxxx Xxxx, President &
Chief Executive Officer
"PURCHASERS OF SERIES C PREFERRED"
________________________________________
(name of entity)
By: /s/ Xxxxxx X. Xxxxxx/ Xxxxxx X. Xxxxxx
----------------------------------------
(signature)
Xxxxxx X. Xxxxxx/ Xxxxxx X. Xxxxxx
--------------------------------------
(print name)
______________________________________
(title)
"PRIOR RIGHTS HOLDERS"
______________________________________
(name of entity)
By:
______________________________________
(signature)
_______________________________________
(print name)
_______________________________________
(title)
-39-
[AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT]
IN WITNESS WHEREOF, the undersigned have executed this Registration Rights
Agreement as of the date set forth above.
"COMPANY" PC-TEL, INC.
A California corporation
By: /s/ Xxxxx Xxxx
-------------------------------------
Xxxxx Xxxx, President &
Chief Executive Officer
"PURCHASERS OF SERIES C PREFERRED"
______________________________________
(name of entity)
By: /s/ Xxxxxx Xxxxx
-------------------------------------
(signature)
Xxxxxx Xxxxx
--------------------------------------
(print name)
______________________________________
(title)
"PRIOR RIGHTS HOLDERS"
______________________________________
(name of entity)
By:
_____________________________________
(signature)
_____________________________________
(print name)
_______________________________________
(title)
-40-
[AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT]
IN WITNESS WHEREOF, the undersigned have executed this Registration Rights
Agreement as of the date set forth above.
"COMPANY" PC-TEL, INC.
A California corporation
By: /s/ Xxxxx Xxxx
-------------------------------------
Xxxxx Xxxx, President &
Chief Executive Officer
"PURCHASERS OF SERIES C PREFERRED"
--------------------------------------
(name of entity)
By: /s/ Xxxxxxx X. Xxxxx
-------------------------------------
(signature)
Xxxxxxx X. Xxxxx
--------------------------------------
(print name)
______________________________________
(title)
"PRIOR RIGHTS HOLDERS"
______________________________________
(name of entity)
By:
--------------------------------------
(signature)
---------------------------------------
(print name)
_______________________________________
(title)
-41-
[AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT]
IN WITNESS WHEREOF, the undersigned have executed this Registration Rights
Agreement as of the date set forth above.
"COMPANY" PC-TEL, INC.
A California corporation
By: /s/ Xxxxx Xxxx
-------------------------------------
Xxxxx Xxxx, President &
Chief Executive Officer
"PURCHASERS OF SERIES C PREFERRED"
--------------------------------------
(name of entity)
By: /s/ Xxxxx X. Xxxxxxx
-------------------------------------
(signature)
Xxxxx X. Xxxxxxx
--------------------------------------
(print name)
______________________________________
(title)
"PRIOR RIGHTS HOLDERS"
______________________________________
(name of entity)
By:
--------------------------------------
(signature)
---------------------------------------
(print name)
_______________________________________
(title)
-42-
[AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT]
IN WITNESS WHEREOF, the undersigned have executed this Registration Rights
Agreement as of the date set forth above.
"COMPANY" PC-TEL, INC.
A California corporation
By: /s/ Xxxxx Xxxx
-------------------------------------
Xxxxx Xxxx, President &
Chief Executive Officer
"PURCHASERS OF SERIES C PREFERRED"
--------------------------------------
(name of entity)
By: /s/ Xxxxxx X. Xxxxxxxxx
-------------------------------------
(signature)
Xxxxxx X. Xxxxxxxxx
--------------------------------------
(print name)
______________________________________
(title)
"PRIOR RIGHTS HOLDERS"
______________________________________
(name of entity)
By:
--------------------------------------
(signature)
---------------------------------------
(print name)
_______________________________________
(title)
-43-
[AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT]
IN WITNESS WHEREOF, the undersigned have executed this Registration Rights
Agreement as of the date set forth above.
"COMPANY" PC-TEL, INC.
A California corporation
By: /s/ Xxxxx Xxxx
-------------------------------------
Xxxxx Xxxx, President &
Chief Executive Officer
"PURCHASERS OF SERIES C PREFERRED"
--------------------------------------
(name of entity)
By: /s/ Xxxxxxx X. Xxxxx
-------------------------------------
(signature)
Xxxxxxx X. Xxxxx
--------------------------------------
(print name)
______________________________________
(title)
"PRIOR RIGHTS HOLDERS"
______________________________________
(name of entity)
By:
--------------------------------------
(signature)
---------------------------------------
(print name)
_______________________________________
(title)
-44-
[AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT]
IN WITNESS WHEREOF, the undersigned have executed this Registration Rights
Agreement as of the date set forth above.
"COMPANY" PC-TEL, INC.
A California corporation
By: /s/ Xxxxx Xxxx
-------------------------------------
Xxxxx Xxxx, President &
Chief Executive Officer
"PURCHASERS OF SERIES C PREFERRED"
--------------------------------------
(name of entity)
By: /s/ Xxxxxxxx Xxxxxx
-------------------------------------
(signature)
Xxxxxxxx Xxxxxx
--------------------------------------
(print name)
______________________________________
(title)
"PRIOR RIGHTS HOLDERS"
______________________________________
(name of entity)
By:
--------------------------------------
(signature)
---------------------------------------
(print name)
_______________________________________
(title)
-45-
[AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT]
IN WITNESS WHEREOF, the undersigned have executed this Registration Rights
Agreement as of the date set forth above.
"COMPANY" PC-TEL, INC.
A California corporation
By: /s/ Xxxxx Xxxx
-------------------------------------
Xxxxx Xxxx, President &
Chief Executive Officer
"PURCHASERS OF SERIES C PREFERRED"
--------------------------------------
(name of entity)
By: /s/ Xxxxx X. Xxxxxxx
-------------------------------------
(signature)
Xxxxx X. Xxxxxxx
--------------------------------------
(print name)
______________________________________
(title)
"PRIOR RIGHTS HOLDERS"
______________________________________
(name of entity)
By:
--------------------------------------
(signature)
---------------------------------------
(print name)
_______________________________________
(title)
-46-
[AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT]
IN WITNESS WHEREOF, the undersigned have executed this Registration Rights
Agreement as of the date set forth above.
"COMPANY" PC-TEL, INC.
A California corporation
By: /s/ Xxxxx Xxxx
-------------------------------------
Xxxxx Xxxx, President &
Chief Executive Officer
"PURCHASERS OF SERIES C PREFERRED"
--------------------------------------
(name of entity)
By: /s/ Xxxxx Xxxxxxxx
-------------------------------------
(signature)
Xxxxx Xxxxxxxx
--------------------------------------
(print name)
President
--------------------------------------
(title)
"PRIOR RIGHTS HOLDERS"
______________________________________
(name of entity)
By:
--------------------------------------
(signature)
---------------------------------------
(print name)
_______________________________________
(title)
-47-
[AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT]
IN WITNESS WHEREOF, the undersigned have executed this Registration Rights
Agreement as of the date set forth above.
"COMPANY" PC-TEL, INC.
A California corporation
By: /s/ Xxxxx Xxxx
-------------------------------------
Xxxxx Xxxx, President &
Chief Executive Officer
"PURCHASERS OF SERIES C PREFERRED"
--------------------------------------
(name of entity)
By: /s/ Xxxxxxx Xxxxx
-------------------------------------
(signature)
Xxxxxxx Xxxxx
--------------------------------------
(print name)
______________________________________
(title)
"PRIOR RIGHTS HOLDERS"
______________________________________
(name of entity)
By:
--------------------------------------
(signature)
---------------------------------------
(print name)
_______________________________________
(title)
-48-
[AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT]
IN WITNESS WHEREOF, the undersigned have executed this Registration Rights
Agreement as of the date set forth above.
"COMPANY" PC-TEL, INC.
A California corporation
By: /s/ Xxxxx Xxxx
-------------------------------------
Xxxxx Xxxx, President &
Chief Executive Officer
"PURCHASERS OF SERIES C PREFERRED"
--------------------------------------
(name of entity)
By: /s/ Xxxx X. Xxxxxxxx
-------------------------------------
(signature)
Xxxx X. Xxxxxxxx
--------------------------------------
(print name)
______________________________________
(title)
"PRIOR RIGHTS HOLDERS"
______________________________________
(name of entity)
By:
--------------------------------------
(signature)
---------------------------------------
(print name)
_______________________________________
(title)
-49-
