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EXHIBIT 7(c)(4)
REGISTRATION RIGHTS AGREEMENT
May 29, 1997
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REGISTRATION RIGHTS AGREEMENT
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THIS REGISTRATION RIGHTS AGREEMENT is made as of the
29th day of May, 1997, by and among P-COM, Inc., a Delaware
corporation (the "Company"), and each of the securityholders who
have executed a signature page hereto (each of which is
individually herein referred to as a "Securityholder," and
collectively, as the "Securityholders".)
RECITALS
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WHEREAS, the Company and certain key Securityholders
are parties to the Agreement and Plan of Reorganization dated as
of April 14, 1997 (the "Merger Agreement") which provides for the
merger (the "Merger") of Control Resources Corporation ("CRC")
with and into a wholly owned subsidiary of the Company;
WHEREAS, in order to induce CRC and the key
Securityholders to enter into the Merger Agreement, the
Securityholders and the Company hereby agree that this Agreement
shall govern the rights of the Securityholders to cause the
Company to register shares of Common Stock issued or issuable to
the Securityholders;
NOW, THEREFORE, THE PARTIES HEREBY AGREE AS FOLLOWS:
1. Registration Rights. The Company covenants and agrees
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as follows:
1.1 Definitions. For purposes of this Section 1:
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(a) The term "Act" means the Securities Act of 1933, as amended.
(b) The term "Holder" means any person owning or
having the right to acquire Registrable Securities or any
assignee thereof in accordance with this Agreement.
(c) The term "1934 Act" shall mean the Securities
Exchange Act of 1934, as amended.
(d) The term "register," "registered," and "registration"
refer to a registration effected by preparing and
filing a registration statement or similar document in
compliance with the Act, and the declaration or ordering
of effectiveness of such registration statement or document.
(e) The term "Registrable Securities" means (i) the Common
Stock of the Company issuable or issued in the Merger to
the Securityholders of CRC and (ii) any Common Stock of the
Company issued as (or issuable upon the conversion or
exercise ofany warrant, right or other security which is
issued as) adividend or other distribution with respect to,
or in exchange for or in replacement of the shares
referenced in (i) above, excluding in all cases, however,
any Registrable Securities sold by a person in a transaction
in which his rights under this Section 1 are not properly
assigned.
(f) The number of shares of "Registrable Securities then
outstanding" shall be determined by the number of shares of
Common Stock outstanding which are, and the number of shares
of Common Stock issuable pursuant to then exercisable
securities which are, Registrable Securities.
(g) The term "SEC" shall mean the Securities and
Exchange Commission.
1.2 Request for Registration.
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(a) Subject to the terms of this Agreement, if the Company shall
receive at any time after May 30, 1997, a written request
from the Holders of a majority of the Registrable Securities
then outstanding that the Company file a registration
statement under the Act covering the registration of all of
the Registrable Securities then outstanding, then the Company
shall:
(i) within twenty (20) days of the receipt thereof, give
written notice of such request to all Holders; and
(ii) effect as soon as practicable, but in any event by
July 31, 1997, the registration under the Act of all
Registrable Securities.
(b) If the Holders initiating the registration request
hereunder ("Initiating 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 made pursuant to subsection 1.2(a) and the
Company shall include such information in the written notice
referred to in subsection 1.2(a)(i). The underwriter will
be selected by the Company and shall be reasonably acceptable
to a majority in interest of all persons entitled to include
shares in the offering, including the Initiating Holders.
In such event, the right of any Holder to include his
Registrable Securities in such registration 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.
All Holders proposing to distribute their securities through
such underwriting shall (together with the Company as
provided in subsection 1.3(e)) enter into an underwriting
agreement in customary form with the underwriter or
underwriters selected for such underwriting;
(c) The Company shall not be obligated to effect, or to take any
action to effect, any registration pursuant to this
Section 1.2:
(i) After the Company has effected one registration pursuant
to this Section 1.2 and such registration has been
declared or ordered effective; or
(ii) If the Company includes all Registrable Securities
requesting registration on a registration statement
effected on behalf of other stockholders of the Company
exercising rights similar to those in Section 1.2 hereof;
provided, however, that such inclusion does not limit
the number of Registrable Securities that would
otherwise be registrable under this Section 1.2 and
that the obligations of the Company pursuant to
Section 1.3 hereof are satisfied.
1.3 Obligations of the Company. Whenever required under this
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Section 1 to effect the registration of any Registrable
Securities, the Company shall, as soon as reasonably possible:
(a) Prepare and file with the SEC a registration statement with
respect to such Registrable Securities and use its reasonable
best efforts to cause such registration statement to become
effective, and, keep such registration statement effective
for a period not to exceed the lesser of one year from the
effective date or until the distribution contemplated in the
registration statement has been completed; provided, however,
that in the case of any registration of Registrable Securities
on Form S-3 which are intended to be offered on a continuous
or delayed basis, such one-year period shall be extended, if
necessary, to keep the registration statement effective until
all such Registrable Securities are sold, provided that
Rule 415, or any successor rule under the Act, permits an
offering on a continuous or delayed basis, and provided
further that applicable rules under the Act governing the
obligation to file a post-effective amendment permit, in
lieu of filing a post-effective amendment which (I) includes
any prospectus required by Section 10(a)(3) of the Act or (II)
reflects facts or events representing a material or
fundamental change in the information set forth in the
registration statement, the incorporation by reference of
information required to be included in (I) and (II) above
to be contained in periodic reports filed pursuant to Section
13 or 15(d) of the 1934 Act in the registration statement.
(b) Prepare and file with the SEC such amendments and supplements
to such registration statement and the prospectus used in
connection with such registration statement as may be
necessary to comply with the provisions of the Act with
respect to the disposition of all securities covered by such
registration statement.
(c) Furnish to the Holders such reasonable numbers of copies of a
prospectus, including a preliminary prospectus, in conformity
with the requirements of the Act, and such other documents as
they may reasonably request in order to facilitate the
disposition of Registrable Securities owned by them.
(d) Use its best efforts to register and qualify the securities
covered by such registration statement under such other
securities or Blue Sky laws of such jurisdictions as shall
be reasonably requested by the Holders; provided that the
Company shall not be required in connection therewith or as
a condition thereto to qualify to do business or to file a
general consent to service of process in any such states or
jurisdictions, unless the Company is already subject to
service in such jurisdiction and except as may be required
by the Act.
(e) In the event of any underwritten public offering, enter into
and perform its obligations under an underwriting agreement,
in usual and customary form, with the managing underwriter of
such offering. Each Holder participating in such underwriting
shall also enter into and perform its obligations under such
an agreement.
(f) Cause all such Registrable Securities registered pursuant
hereunder to be listed on each securities exchange on which
similar securities issued by the Company are then listed.
1.4 Furnish Information. It shall be a condition precedent to the
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obligations of the Company to take any action pursuant to
this Section 1 with respect to the Registrable Securities of
any selling Holder that such Holder shall furnish to the
Company such information regarding itself, the Registrable
Securities held by it, and the intended method of disposition
of such securities as shall be required to effect the
registration of such Holder's Registrable Securities.
1.5 Expenses of Demand Registration. All expenses, other than
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underwriting discounts, commissions and fees and disbursements
of counsel for the selling Holders, incurred in connection
with the registration, filing or qualifications pursuant to
Section 1.2, including (without limitation) all registration,
filing and qualification fees, printers' and accounting fees,
and fees and disbursements of counsel for the Company, shall
be borne by the Company; provided, however, that the Company
shall not be required to pay for any expenses of any
registration proceeding begun pursuant to Section 1.2 if the
registration request is subsequently withdrawn at the request
of the Holders of a majority of the Registrable Securities to
be registered (in which case all participating Holders shall
bear such expenses), unless the Holders of a majority of the
Registrable Securities agree to forfeit their right to the
demand registration pursuant to Section 1.2; provided further,
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 and have withdrawn the
request with reasonable promptness following disclosure by
the Company of such material adverse change, then the Holders
shall not be required to pay any of such expenses and shall
retain their right pursuant to Section 1.2;
1.6 Delay of Registration. No Holder shall have any right to
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obtain or seek an injunction restraining or otherwise
delaying any such registration as the result of any controversy
that might arise with respect to the interpretation or
implementation of this Section 1.
1.7 Reports Under Securities Exchange Act of 1934.
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With a view to making available to the Holders the benefits of
Rule 144 promulgated under the Act and any other rule or
regulation of the SEC that may at any time permit a Holder to
sell securities of the Company to the public without
registration or pursuant to a registration statement on
Form S-3, the Company agrees to use its reasonable efforts to
file with the SEC in a timely manner all reports and other
documents required of the Company under the Act and the 1934
Act.
1.8 Assignment of Registration Rights. The rights to cause the
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Company to register Registrable Securities pursuant to
this Section 1 may be assigned (but only with all related
obligations) by a Holder to any transferee or assignee of such
securities provided: (a) the Company is, within a reasonable
time after such transfer, furnished with written notice of the
name and address of such transferee or assignee and the
securities with respect to which such registration rights are
being assigned; (b) such transferee or assignee agrees in
writing to be bound by and subject to the terms and
conditions of this Agreement; and (c) such assignment shall
be effective only if immediately following such transfer the
further disposition of such securities by the transferee or
assignee is restricted under the Act.
1.9 Termination of Registration Rights. No Holder shall be
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entitled to exercise or utilize any right provided for in
this Section 1, and the Company shall be entitled to terminate
the effectiveness of any registration statement,
notwithstanding the above, upon the earliest to occur of:
(i) one year after the consummation of the Merger or (ii) the
date when any Holder may be able to sell all of his unsold
Registrable Securities within any three-month period pursuant
to Rule 144 under the Act.
2. Miscellaneous.
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2.1 Successors and Assigns. Except as otherwise provided herein,
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the terms and conditions of this Agreement shall
inure to the benefit of and be binding upon the respective
successors and assigns of the parties (including transferees of
any shares of Registrable Securities). Nothing in this
Agreement, express or implied, is intended to confer upon any
party other than the parties hereto or their respective
successors and assigns any rights, remedies, obligations, or
liabilities under or by reason of this Agreement, except as
expressly provided in this Agreement.
2.2 Governing Law. This Agreement shall be governed by and
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construed under the laws of the State of Delaware as applied
to agreements among Delaware residents entered into and
to be performed entirely within Delaware.
2.3 Counterparts. This Agreement may be executed in two or more
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counterparts, each of which shall be deemed an original, but
all of which together shall constitute one and the same
instrument.
2.4 Notices. Unless otherwise provided, any notice required or
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permitted under this Agreement shall be given in writing and
shall be deemed effectively given upon personal delivery to
the party to be notified or upon deposit with the United
States Post Office, by registered or certified mail, postage
prepaid and addressed to the party to be notified at the
address indicated for such party on the signature page hereof,
or at such other address as such party may designate by ten
(10) days' advance written notice to the other parties.
2.5 Amendments and Waivers. Any term of this Agreement may be
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amended and the observance of any term of this Agreement may
be waived (either generally or in a particular instance and
either retroactively or prospectively), only with the written
consent of the Company and the holders of a majority of the
Registrable Securities then outstanding. Any amendment or
waiver effected in accordance with this paragraph shall be
binding upon each holder of any Registrable Securities then
outstanding, each future holder of all such Registrable
Securities, regardless of whether such Holder has actually
executed the amendment or waiver.
2.6 Severability. If one or more provisions of this Agreement
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are held to be unenforceable under applicable law, such
provision shall be excluded from this Agreement and the balance
of the Agreement shall be interpreted as if such provision were
so excluded and shall be enforceable in accordance with its
terms.
2.7 Entire Agreement; Amendment; Waiver. This Agreement
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constitutes the full and entire understanding and agreement
between the parties with regard to the subject matter hereof.
IN WITNESS WHEREOF, the parties have executed this Agreement as of
the date first above written.
P-COM, INC., a Delaware corporation
By: /s/ P-COM, INC.
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Address: 0000 X. Xxxxxxxxxx Xxxx.
Xxxxxxxx, Xxxxxxxxxx 00000
REGISTRATION RIGHTS AGREEMENT
SIGNATURE PAGE
SECURITYHOLDER:
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Address:
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P-COM Common Stock
To Be Received in the Merger:
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SCHEDULE A
LIST OF SECURITYHOLDERS
(will be furnished upon request)
