EXHIBIT 4.2
THIRD AMENDED AND RESTATED
REGISTRATION RIGHTS AGREEMENT
This Third Amended and Restated Registration Rights Agreement (this
"Agreement") is hereby entered into as of the 14th day of December, 1999 by
and among UTStarcom, Inc., a Delaware corporation (the "Corporation"), at
least eighty percent (80%) of the holders of the Series A Convertible
Preferred Stock, Series B Convertible Preferred Stock, Series C Convertible
Preferred Stock, Series D Convertible Preferred Stock and Series F
Convertible Preferred Stock (collectively the "Preferred Holders", sometimes
referred to individually as "Investor" and collectively as "Investors").
R E C I T A L S
A. The Corporation and the holders of the Series A Convertible
Preferred Stock, the Series B Convertible Preferred Stock, the Series C
Convertible Preferred Stock, the Series D Convertible Preferred Stock and the
Series F Convertible Preferred Stock are parties to that certain Second Amended
and Restated Registration Rights Agreement dated November 17, 1999, (the
"Registration Agreement").
B. The Corporation and the holders of the Series A Convertible
Preferred Stock, the Series B Convertible Preferred Stock, the Series C
Convertible Preferred Stock, the Series D Convertible Preferred Stock and the
Series F Convertible Preferred Stock desire to amend and restate the
Registration Agreement.
NOW THEREFORE, in consideration of the premises and the mutual agreements
hereinafter set forth, the parties hereto agree that the Registration Agreement
shall be amended and restated to read in its entirety as follows:
1. DEFINITIONS. As used in this Agreement, the following terms shall
have the following meanings:
(a) The term "ACT" means the Securities Act of 1933, as
amended;
(b) The term "COMMON STOCK" means the Corporation's Common
Stock, par value $.0025 per share;
(c) The term "HOLDER" means any Investor and any other person
or entity holding Registrable Securities to whom the registration rights granted
in this Agreement have been transferred pursuant to Section 15 hereof;
(d) The term "PREFERRED STOCK" means shares of the
Corporation's Series A Convertible Preferred Stock, par value $.0025 per share,
shares of the Corporation's Series B Convertible Preferred Stock, par value
$.0025 per share, shares of the Corporation's Series C Convertible Preferred
Stock, par value $.0025 per share, shares of the Corporation's Series D
Convertible Preferred Stock, par value $.0025 per share, shares of the
Corporation's Series F Convertible Preferred Stock, par value $.0025 per share,
shares of the Corporation's Series G
Convertible Preferred Stock, par value $.0025 per share, each series of which is
convertible into shares of the Corporation's Common Stock;
(e) The terms "REGISTER," "REGISTERED," and "REGISTRATION"
refer to a registration effected by preparing and filing a registration
statement in compliance with the Act and the declaration or ordering of
effectiveness of such registration statement;
(f) The term "REGISTRABLE SECURITIES" means (1) the Common
Stock issuable upon conversion of the Preferred Stock; (2) Common Stock
purchased by an Investor pursuant to (i) Section 8.2 of the Stock Purchase
Agreement dated as of March 29, 1995 between the Corporation and Technology
Funding Venture Partners IV, An Aggressive Growth Fund, L.P., Technology Funding
Venture Partners V, An Aggressive Growth Fund, L.P., Telco Systems, Inc., Dr.
▇▇▇▇▇▇ ▇▇▇▇, Variamat Resources Sdn. Bhd., Ding ▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ and
Malaysian Technology Development Corp. (the "Series A Purchase Agreement") (or
Common Stock for or into which New Securities (as defined in the Series A
Purchase Agreement) purchased by the Investor pursuant to such Section 8.2 of
such Series A Purchase Agreement may be exercised or converted), (ii) Section 8
of the Stock Purchase Agreement dated as of October 19, 1995 between the
Corporation and SOFTBANK Corporation (the "Series B Purchase Agreement") (or
Common Stock for or into which New Securities (as defined in the Series A
Purchase Agreement) purchased by the Investor pursuant to Section 8 of such
Series B Purchase Agreement may be exercised or converted), (iii) Section 8 of
the Stock Purchase Agreement dated as of December 2, 1996 between the
Corporation and SOFTBANK Holdings Inc. (the "Series C SOFTBANK Holdings Inc.
Purchase Agreement") (or Common Stock for or into which New Securities (as
defined in the Series A Purchase Agreement) purchased by the Investor pursuant
to Section 8 of such Series C SOFTBANK Holdings Inc. Purchase Agreement may be
exercised or converted), (iv) Section 8 of the Stock Purchase Agreement dated as
of December 2, 1996 between the Corporation and SOFTBANK Ventures, Inc. (the
"Series C SOFTBANK Ventures, Inc. Purchase Agreement") (or Common Stock for or
into which New Securities (as defined in the Series A Purchase Agreement)
purchased by the Investor pursuant to Section 8 of such Series C SOFTBANK
Ventures, Inc. Purchase Agreement may be exercised or converted), (v) Section 8
of the Stock Purchase Agreement dated January 15, 1997 between the Corporation
and Naray Mobile Telecom, Inc., Malaysian Technology Development Corporation,
Ding ▇▇▇ ▇▇▇ and Variamat Resources Sdn. Bhd. (the "Series C Naray Purchase
Agreement") (or Common Stock for or into which New Securities (as defined in the
Series A Purchase Agreement) purchased by the Investor pursuant to Section 8 of
such Series C Naray Purchase Agreement may be exercised or converted), (vi)
Section 8 of the Stock Purchase Agreement dated October 3, 1997 between the
Corporation and SOFTBANK Holdings, Inc. and SOFTBANK Contents Fund (the "Series
D Purchase Agreement") (or Common Stock for or into which New Securities (as
defined in the Series A Purchase Agreement) purchased by the Investor pursuant
to Section 8 of such Series D Purchase Agreement may be exercised or converted)
and (vii) Section 8 of the Stock Purchase Agreement dated November 17, 1999
between the Corporation and the Purchasers (the "Series F Purchase Agreement)
(or Common Stock for or into which New Securities (as defined in the Series A
Purchase Agreement) purchased by the Investor pursuant to Section 8 of such
Series F Purchase Agreement may be exercised or converted); (3) shares of Common
Stock issuable upon exercise of a Warrant dated February 5, 1998 issued to
Lintech Limited; (4) shares of Common Stock issuable upon exercise of a Warrant
dated September 20, 1999 issued to Talent Group International, Limited.; (5)
shares of Series G Preferred Stock issued to
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holders of WACOS, Inc. capital stock, pursuant to the Agreement and Plan of
Merger dated __________, 1999 (the "Merger Agreement"); and (6) any Common Stock
of the Corporation issued as a dividend or other distribution with respect to,
or in exchange for or in replacement of, such Preferred Stock or Common Stock.
In addition, for purposes of all calculations, and notices under, and all
provisions of this Agreement, where the context permits, (i) the term
"Registrable Securities" shall include securities issuable upon conversion of
the Preferred Stock, (ii) a holder of the Preferred Stock shall be deemed the
Holder of such securities and (iii) such securities shall be deemed outstanding
Registrable Securities hereunder. The foregoing notwithstanding, nothing in
this Agreement shall require the Corporation actually to register any shares of
the Preferred Stock.
(g) The term "SB AFFILIATE" means any other person or entity
controlling, controlled by, or under common control with the SB Entities (as
defined below), including without limitation, (i) any partnership that is
affiliated with an SB Entity that is also a partnership, or (ii) any
majority-owned subsidiary of any SB Entity which is a corporation.
(h) The term "SB ENTITY" means any of SOFTBANK America Inc., a
Delaware corporation, SOFTBANK Ventures, Inc., a Japanese corporation, and their
respective successors and assigns.
(i) The term "STOCK PURCHASE AGREEMENTS" means the Series A
Purchase Agreement, the Series B Purchase Agreement, the Series C SOFTBANK
Holdings Inc. Purchase Agreement, the Series C SOFTBANK Ventures, Inc. Purchase
Agreement, the Series C Naray Purchase Agreement, the Series D Purchase
Agreement and the Series F Purchase Agreement.
2. REQUEST FOR REGISTRATION. At any time after the earlier of (i)
September 1, 1997 or (ii) the initial public offering of the Common Stock, if
the Corporation shall receive a written request (specifying that it is being
made pursuant to this Section 2) from the Holder or Holders of more than
thirty-three and one-third percent (33 1/3%) of the then outstanding Registrable
Securities that the Corporation file a registration statement under the Act, or
a similar document pursuant to any other statute then in effect corresponding to
the Act, covering the registration of at least the lesser of (i) at least twenty
percent (20%) of the then outstanding Registrable Securities and, (ii)
Registrable Securities the expected offering price to the public of which equals
or exceeds $5,000,000, then the Corporation shall promptly notify all other
Holders of such request and shall use its best efforts to cause all Registrable
Securities that all Holders have requested be registered to be registered under
the Act.
Notwithstanding the foregoing, (a) the Corporation shall not be obligated
to effect a registration pursuant to this Section 2 during the period starting
with the date sixty (60) days prior to the Corporation's estimated date of
filing of, and ending on a date three (3) months following the effective date
of, a registration statement pertaining to an underwritten public offering of
securities for the account of the Corporation, provided that the Corporation is
actively employing in good faith its best efforts to cause such registration
statement to become effective and that the Corporation's estimate of the date of
filing such registration statement is made in good faith; (b) the Corporation
shall not be obligated to effect a registration pursuant to this Section 2
within six (6) months after the
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effective date of a prior registration under such Section; (c) if the
Corporation shall furnish to the Holders a certificate signed by the President
of the Corporation stating that in the good faith judgment of the Board of
Directors it would be materially detrimental to the Corporation or its
stockholders for a registration statement to be filed in the near future, then
the Corporation's obligation to use its best efforts to file a registration
statement shall be deferred for a period not to exceed three (3) months; and
(d) the Corporation may postpone a registration pursuant to this Section 2 for
such period of time as may be required to permit the use of regular audited
year-end figures with supplemental short period figures for a period not
exceeding three (3) months unless the Holders agree to bear the costs of any
special audit.
The Corporation shall not be obligated to effect more than one (1)
registration pursuant to this Section 2. Any request for registration under
this Section 2 must be for a firm commitment underwritten public offering to be
managed by an underwriter or underwriters of recognized national standing
reasonably acceptable to the Corporation.
3. CORPORATION REGISTRATION. Subject to Section 8 of this Agreement,
if at any time the Corporation proposes to register any of its Common Stock
under the Act in connection with the public offering of such securities for its
own account or for the accounts of other stockholders, solely for cash on a form
that would also permit the registration of the Registrable Securities, the
Corporation shall, each such time, promptly give each Holder written notice of
such determination. Upon the written request of any Holder given within thirty
(30) days after mailing of any such notice by the Corporation, the Corporation
shall use its best efforts to cause to be registered under the Act all of the
Registrable Securities that each such Holder has requested be registered;
provided that the Corporation shall have the right to postpone or withdraw any
such registration effected pursuant to this Section 3.
4. OBLIGATIONS OF THE CORPORATION. Whenever required under Section
2, 3, or 11 to use its best efforts to effect the registration of any
Registrable Securities, the Corporation shall, as expeditiously as reasonably
possible:
(a) Prepare and file with the Securities and Exchange
Commission ("SEC") a registration statement with, respect to such Registrable
Securities and use its best efforts to cause such registration statement to
become and remain effective; provided, however, that in connection with any
proposed registration intended to permit an offering of any securities from time
to time (i.e., a so-called "shelf registration"), the Corporation shall in no
event be obligated to cause any such registration to remain effective for more
than one hundred eighty (180) days.
(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 until the earlier of (i) the disposition of all securities
covered by such registration statement or (ii) 120 days after the effective date
thereof.
(c) Furnish to each selling Holder such number of copies of
each preliminary and final prospectus in conformity with the requirements of the
Act, and such other documents as such Holder may reasonably request, in order to
facilitate the disposition of Registrable Securities owned by it.
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(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 appropriate for the
distribution of the securities covered by the registration statement, provided
that the Corporation 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, and further provided
that (anything in this Agreement to the contrary notwithstanding with respect to
the bearing of expenses) if any jurisdiction in which the securities shall be
qualified shall require that expenses incurred in connection with the
qualification of the securities in that jurisdiction be borne by selling
stockholders, then such expenses shall be payable by selling stockholders pro
rata, to the extent required by such jurisdiction.
(e) Provide a transfer agent for the Common Stock no later than
the effective date of the first registration of any Registrable Securities.
(f) Otherwise use its best efforts to comply with all
applicable rules and regulations of the SEC.
(g) Use its best efforts to cause all the Registrable
Securities either (i) to be listed on a national securities exchange (if the
Registrable Securities are not already so listed) and on each additional
national securities exchange on which similar securities issued by the
Corporation are then listed, if the listing of the Registrable Securities is
then permitted under the rules of such exchange, or (ii) to secure designation
of all the Registrable Securities as a Nasdaq "national market system security"
within the meaning of Rule 11Aa2-1 of the SEC or, failing that, to secure
listing on Nasdaq for the Registrable Securities and, without limiting the
generality of the foregoing, to arrange for at least two (2) market makers to
register as such with respect to Registrable Securities with the National
Association of Securities Dealers, Inc.
(h) Enter into such customary agreements (including an
underwriting agreement in customary form) and take such other actions as sellers
of Registrable Securities shall reasonably request in order to expedite or
facilitate the disposition of such Registrable Securities.
(i) Make available for inspection and copying by any seller of
Registrable Securities, by any underwriter participating in any disposition to
be effected pursuant to such registration statement and by any attorney,
accountant or other agent retained by any such seller or any such underwriter,
all pertinent financial and other records and pertinent corporate documents and
properties of the Corporation, and cause all of the Corporation's officers,
directors and employees to supply all information reasonably requested by any
such seller, underwriter, attorney, accountant or agent in connection with such
registration statement.
(j) Use every reasonable effort to prevent the issuance of any
stop order suspending the effectiveness of such registration statement or of any
order preventing or suspending the use of any preliminary prospectus and, if any
such order is issued, to obtain the lifting thereof at the earliest reasonable
time.
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(k) Make such representations and warranties to the selling
Holders and the underwriters as are customarily made by issuers to underwriters
and selling stockholders, as the case may be, in primary underwritten public
offerings.
(l) Furnish to each selling Holder a signed counterpart of
(i) an opinion of counsel for the Corporation, dated the
effective date of the registration statement, and
(ii) "comfort" letters signed by the Corporation's
independent public accountants who have examined and reported on the
Corporation's financial statements included in the registration statement, to
the extent permitted by the standards of the American Institute of Certified
Public Accountants, covering substantially the same matters with respect to the
registration statement (and the prospectus included therein) and (in the case of
the accountants' "comfort" letters) with respect to events subsequent to the
date of the financial statements, as are customarily covered in opinions of
issuer's counsel and in accountants' "comfort" letters delivered to the
underwriters in underwritten public offerings of securities, to the extent that
the Corporation is required to deliver or cause the delivery of such opinion or
"comfort" letters to the underwriters in an underwritten public offering of
securities.
(m) Furnish to each selling Holder a copy of all documents
filed and all correspondence from or to the SEC in connection with the
registration statement and the offering to which it relates.
(n) Use its best efforts to insure the obtaining of all
necessary approval from the National Association of Securities Dealers, Inc. in
connection with such offering.
(o) Notify each Holder of Registrable Securities covered by
such registration statement at any time when a prospectus relating thereto is
required to be delivered under the Securities Act of the happening of any event
as a result of which the prospectus included in such registration statement, as
then in effect, includes an untrue statement of a material fact or omits to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading in the light of the circumstances then
existing.
5. FURNISH INFORMATION. It shall be a condition precedent to the
obligations of the Corporation to take any action pursuant to this Agreement
that the Holders shall furnish to the Corporation such information regarding
them, the Registrable Securities held by them, and the intended method of
disposition of such securities as the Corporation shall reasonably request and
as shall be required in connection with the action to be taken by the
Corporation.
6. EXPENSES OF DEMAND REGISTRATION. All expenses incurred in
connection with registrations pursuant to Section 2 (excluding underwriters'
discounts and commissions), including, without limitation, all registration and
qualification fees, printers', and accounting fees, fees and disbursements of
counsel for the Corporation, and the reasonable fees and disbursements of one
counsel for the selling Holders, shall be borne by the Corporation; provided,
however, that if a registration under Section 2 is withdrawn at the request of
the selling Holders requesting such
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registration (other than as a result of information concerning the business or
financial condition of the Corporation which is made known to the selling
Holders after the date on which such registration was requested) and if such
selling Holders elect not to have such registration counted as registration
requested under Section 2, the requesting selling Holders shall pay the
registration expenses of such registration pro rata in accordance with the
number of the Registrable Securities included in such registration.
7. CORPORATION REGISTRATION EXPENSES. All expenses (excluding
underwriters' discounts and commissions) incurred in connection with a
registration pursuant to Section 3 (other than a registration on Form S-3 filed
pursuant to Section 11 hereof), including, without limitation, any-additional
registration and qualification fees and any additional fees and disbursements of
counsel to the Corporation that result from the inclusion of securities held by
the Holders in such registration and the reasonable fees and disbursements of
one counsel for the selling Holders, shall be borne by the Corporation.
8. UNDERWRITING REQUIREMENTS.
(a) In connection with any offering involving an underwriting
of shares being issued by the Corporation, the Corporation shall not be required
to include any of the Holders' Registrable Securities in such underwriting
unless they accept the terms of the underwriting as agreed upon between the
Corporation and the underwriters selected by it (which terms shall be
customary), and, in connection with any such offering under Section 3, only in
such quantity as will not exceed a limitation on the amount of securities to be
underwritten, such limitation to be reasonably determined by the underwriters,
or their representatives based on marketing factors (the "Underwriters'
Limitation"). If the total amount of securities that all Holders request to be
included in an underwritten offering exceeds the Underwriters' Limitation on the
amount of securities, the Corporation shall only be required to include in the
offering so many of the securities of the selling Holders as the underwriters
reasonably believe will not exceed that limitation (the securities so included
to be apportioned pro rata among the selling Holders according to the total
amount of securities owned by said selling Holders, or in such other proportions
as shall mutually be agreed to by such selling Holders), provided that (in the
case of an offering subject to Section 3) no such reduction shall be made with
respect to any securities offered by the Corporation for its own account, and
provided further that no securities of any stockholder who is not a Holder shall
be included unless all securities which the Holders and their permitted
assignees have requested to be included are included.
(b) With respect to any underwriting of shares to be registered
under Section 2 or Section 11, the Holders of a majority of the then outstanding
Registrable Securities to be included in such offering shall have the right to
designate the managing underwriter or underwriters. In all other circumstances
under such Sections and in connection with registrations under Section 3, the
Board of Directors of the Corporation shall designate the managing underwriter
or underwriters.
9. DELAY OF REGISTRATION. No Holder shall have any right to take any
action to restrain, enjoin, or otherwise delay any registration as the result of
any controversy that might arise with respect to the interpretation or
implementation of this Agreement.
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10. INDEMNIFICATION. In the event any Registrable Securities are
included in a registration statement under this Agreement:
(a) To the extent permitted by law, the Corporation will
indemnify and hold harmless each Holder requesting or joining in a registration,
any underwriter (as defined in the Act) for it, and each person, if any, who
controls such Holder or underwriter within the meaning of the Act, against any
losses, claims, damages or liabilities, joint or several, to which they may
become subject under the Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are based
on any untrue or alleged untrue statement of any material fact contained in such
registration statement, including, without limitation, any preliminary
prospectus or final prospectus contained therein or any amendments or
supplements thereto, or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein, or
necessary to make the statements therein not misleading or arise out of any
violation by the Corporation of any rule or regulation promulgated under the Act
applicable to the Corporation and relating to action or inaction required of the
Corporation in connection with any such registration; and will reimburse each
such Holder, such underwriter, or controlling person for any legal or other
expenses reasonably incurred by them in connection with investigating or
defending any such loss, claim, damage, liability, or action, provided, however,
that the indemnity agreement contained in this Section 10(a) shall not apply to
amounts paid in settlement of any such loss, claim, damage, liability or action
if such settlement is effected without the consent of the Corporation (which
consent shall not be unreasonably withheld or delayed) nor shall the Corporation
be liable in any such case for any such loss, claim, damage, liability or action
to the extent that it arises out of or is based upon an untrue statement or
alleged untrue statement or omission or alleged omission made in connection with
such registration statement, preliminary prospetus, final prospectus, or
amendments or supplements thereto, in reliance upon and in conformity with
written information furnished expressly for use in connection with such
registration by or on behalf of any such Holder, underwriter or controlling
person.
(b) To the extent permitted by law, each Holder requesting or
joining in a registration will indemnify and hold harmless the Corporation, each
of its directors, each of its officers who has signed the registration
statement, each underwriter for the Corporation (within the meaning of the Act),
and each person, if any, who controls the Corporation or any such underwriter
within the meaning of the Act, against any losses, claims, damages or
liabilities to which the Corporation or any such director, officer, controlling
person or underwriter may become subject, under the Act or otherwise, insofar as
such losses, claims, damages or liabilities (or actions in respect thereto)
arise out of or are based upon any untrue statement or alleged untrue statement
of any material fact contained in such registration statement, including any
preliminary prospectus or final prospectus contained therein or any amendments
or supplements thereto, or arise out of or are based upon the omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, in each case to the
extent, but only to the extent, that such untrue statement or alleged untrue
statement or omission or alleged omission was made in such registration
statement, preliminary prospectus or final prospectus, or amendments or
supplements thereto, in reliance upon and in conformity with written information
furnished by or on behalf of such Holder expressly for use in connection with
such registration; and will reimburse the Corporation or any such director,
officer, controlling person or underwriter for any legal or other expenses
reasonably incurred by them in connection with investigating or
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defending any such loss, claim, damage, liability or action; provided, however,
that the indemnity agreement contained in this Section 10(b) shall not apply to
amounts paid in settlement of any such loss, claim, damage, liability or action
if such settlement is effected without the consent of such Holder (which consent
shall not be unreasonably withheld) and provided further that no Holder shall
have any liability under this Section 10(b) in excess of the net proceeds
actually received by such Holder in the relevant public offering.
(c) Promptly after receipt by an indemnified party under this
Section 10 of notice of the commencement of any action, such indemnified party
will, if a claim in respect thereof is to be made against any indemnifying party
under this Section 10, notify the indemnifying party in writing of the
commencement thereof and the indemnifying party shall have the right to
participate in, and, to the extent the indemnifying party so desires, jointly
with any other indemnifying party similarly noticed, to assume the defense
thereof with counsel mutually satisfactory to the parties. The failure to
notify an indemnifying party promptly of the commencement of any such action, if
actually prejudicial to his ability to defend such action, shall relieve such
indemnifying party of any liability to the indemnified party under this Section
10, but the omission so to notify the indemnifying party will not relieve him of
any liability that he may have to any indemnified party otherwise than under
this Section 10.
11. REGISTRATIONS ON FORM S-3.
(a) If (i) the Corporation shall receive a written request
(specifying that it is being made pursuant to this Section 11) from the Holder
or Holders of more than fifteen percent (15%) of the then-outstanding
Registrable Securities that the Corporation file a registration statement on
Form S-3 (or any successor form to Form S-3 regardless of its designation) for a
public offering of shares of the Registrable Securities the reasonably
anticipated aggregate price to the public of which would equal or exceed Two
Million Dollars ($2,000,000), and (ii) the Corporation is a registrant entitled
to use Form S-3 to register such shares, then the Corporation shall use its best
efforts to cause such shares to be registered on Form S-3 (or any successor form
to Form S-3).
(b) All expenses (excluding underwriters' discounts and
commissions) incurred in connection with a registration requested pursuant to
Section 11(a), including, without limitation, all registration, qualification,
printing, and accounting fees, and fees and disbursements of one counsel for the
selling Holder or Holders and counsel to the Corporation, shall be borne by the
Corporation.
(c) Holders' rights to registration under this Section 11 are
in addition to, and not in lieu of, their rights to registration under Sections
2 and 3 of this Agreement.
(d) The Corporation shall not be obligated to effect more than
two registrations pursuant to this Section 11 during any period of twelve (12)
consecutive calendar months.
12. LIMITATION ON CORPORATION OFFERINGS. The Corporation shall not
register securities for sale for its own account (or, except as permitted by
Section 14, any securities other than Registrable Securities held by a Holder)
in any registration requested pursuant to Section 2 or 11 unless permitted to do
so by the written consent of the Holders of more than eighty percent (80%) of
the Registrable Securities as to which registration has been requested. The
Corporation may not cause
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any other registration of securities for its own account (other than a
registration effected solely to implement an employee benefit plan) which would
become effective less than ninety (90) days after the effective date of any
registration requested pursuant to Section 2 or 11 to be initiated after such
requested registration.
13. REPORTS UNDER SECURITIES EXCHANGE ACT OF 1934. 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 Corporation to the public without registration,
the Corporation agrees to use its best efforts to:
(a) make and keep public information available, as those terms
are understood and defined in Rule 144, at all times subsequent to ninety (90)
days after the effective date of the first registration statement covering an
underwritten public offering filed by the Corporation;
(b) file with the SEC in a timely manner all reports and other
documents required of the Corporation under the Act and the Securities Exchange
Act of 1934, as amended (the "1934 Act"); and
(c) furnish to any Holder forthwith upon request a written
statement by the Corporation that it has complied with the reporting
requirements of Rule 144 (at any time after ninety (90) days after the effective
date of said first registration statement filed by the Corporation), and of the
Act and the 1934 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
Corporation, and such other reports and documents so filed by the Corporation as
may be reasonably requested in availing any such Holder to take advantage of any
rule or regulation of the SEC permitting the selling of any such securities
without registration.
14. LIMITATIONS IN CONNECTION WITH FUTURE GRANTS OF REGISTRATION
RIGHTS. Without the prior written consent of Holders that hold at least eighty
percent (80%) in voting power of Registrable Securities, the Corporation shall
not grant rights to cause the Corporation to register any of its securities to
any person or entity which are more favorable than the rights granted to the
Holders hereunder or which would interfere in any respect with the exercise by
the Holders of their rights hereunder.
15. TRANSFER OF REGISTRATION RIGHTS. The registration rights of any
Investor (and of any permitted transferee of any Investor or its permitted
transferees) under this Agreement with respect to any shares of Registrable
Securities may be Transferred to any transferee who acquires (otherwise than in
a registered public offering) such shares of Registrable Securities, provided,
however, that the Corporation is given written notice by the Holder at the time
of such transfer stating the name and address of the transferee and identifying
the securities with respect to which the rights under this Agreement are being
assigned and the transferee agrees to be bound by and executes a counterpart of
this Agreement.
16. MERGERS, ETC. The Corporation shall not, directly or indirectly
enter into any merger, consolidation or reorganization in which the Corporation
shall not be the surviving corporation unless the proposed surviving corporation
shall, prior to such merger, consolidation or
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reorganization, agree in writing to assume the obligations of the Corporation
under this Agreement, and for that purpose references hereunder to "Registrable
Securities" shall be deemed to be references to the securities which the Holders
would be entitled to receive in exchange for Registrable Securities under any
such merger, consolidation or reorganization; provided, however, that the
provisions of this Agreement shall not apply in the event of any merger,
consolidation or reorganization in which the Corporation is not the surviving
corporation if the Holders of Registrable Securities are entitled to receive in
exchange therefor (i) cash, (ii) securities of the acquiring corporation which
may be immediately sold to the public without registration under the Act, or
(iii) securities of the acquiring corporation which the acquiring corporation
has agreed to register within ninety (90) days of the completion of the
transaction for resale to the public pursuant to the Act.
17. TRANSFERABILITY OF SHARES. Notwithstanding any representation,
warranty or covenant to the contrary in this Agreement, the Stock Purchase
Agreements, the Merger Agreement or any other agreement between the Corporation
and the Preferred Holders entered into prior to the date hereof, each SB Entity
shall have the right to transfer Registrable Securities held by it to any SB
Affiliate; provided, however, that such SB Affiliate agrees in writing to be
subject to the terms hereof and any relevant Stock Purchase Agreement or Merger
Agreement to the same extent as if he or she were an original Preferred Holder
hereunder.
18. STAND-OFF AGREEMENT.
(a) Each Holder hereby agrees that it shall not, to the extent
requested by the Corporation or a managing underwriter of an offering of
securities of the Corporation, sell, make any short sale of, loan, grant any
option for the purchase of, or otherwise dispose of any Registrable Securities
or other securities of the Corporation then owned by such Holder without the
prior written consent of the Corporation or such underwriter, for up to 180 days
following the effective date of a registration statement of the Company filed
under the Act; provided, however, that (i) such agreement shall only apply to
the first registration statement covering Common Stock to be sold on the
Corporation's behalf to the public in an underwritten offering; and (ii) all
officers, directors and holders of at least 5% of the outstanding shares
(calculated on as-converted-to Common Stock basis) of the Corporation enter into
similar agreements. The Holders agree, to ensure compliance with the
restrictions referred to herein, that the Corporation may issue appropriate
"stop transfer" certificates or instructions and that the Corporation may make
appropriate notations to the same effect in its records.
(b) Notwithstanding the above, the SB Entities may transfer
Registrable Securities in accordance with Section 17 above.
19. MISCELLANEOUS.
(a) Notwithstanding anything herein to the contrary, if
pursuant to Section 1 of the Stock Purchase Agreement dated November 17, 1999,
(the Purchase Agreement"), additional parties may purchase shares of Series F
Preferred Stock as "New Purchasers" thereunder, then each such New Purchaser
shall become a party to this Agreement as a "Purchaser" and "Investor"
hereunder, without the need any consent, approval or signature of any Investor
when such New Purchaser has both; (i) purchased shares of Series F Preferred
Stock under the Purchase Agreement
11
and paid the Company all consideration payable for such shares and (ii) executed
one or more counterpart signature pages to this Agreement as an "Investor", with
the Company's consent.
(b) This Agreement and the documents referred to herein state
the entire agreement of the parties concerning the subject matter hereof, and
supersedes all prior agreements, written or oral, including without limitation
the Registration Agreement, between or among them concerning such subject
matter.
(c) This Agreement may be amended, and compliance with any
provision of this Agreement may be omitted or waived, only with the written
consent of the Corporation and the Holders of at least eighty percent (80%) in
voting power of the then-outstanding Registrable Securities to be bound thereby.
(d) This Agreement shall be governed by, and construed and
enforced in accordance with, the substantive laws of the State of California
without regard to its principles of conflicts of laws.
(e) All notices hereunder shall be given in accordance with
Section 16 of the Series A Stock Purchase Agreement, Section 11(f) of the Series
B Purchase Agreement, Section 11(f) of the Series C SOFTBANK Holdings Inc.
Purchase Agreement, Section 11(f) of the Series C SOFTBANK Ventures, Inc.
Purchase Agreement, Section 11(f) of the Series C Naray Purchase Agreement,
Section 11(f) of the Series D Purchase Agreement, Section 11(f) of the Series F
Purchase Agreement and Section 8.1 of the Merger Agreement.
(f) Subject to Section 15 above, this Agreement shall be
binding upon and shall inure to the benefit of the parties hereto and their
respective successors and assigns. Any transferee or assignee shall thereafter
be treated as a Holder, subject to the limitations herein. Until the
Corporation receives actual notice of any transfer or assignment, it shall be
entitled to rely on the then existing list of Holders and the failure to notify
the Corporation of any transfer or assignment shall not affect the validity of a
notice properly given by the Corporation to the Holders pursuant to lists
maintained by the Corporation.
(g) If one or more provisions of this Agreement are held to be
unenforceable under applicable law, portions of such provisions, or such
provisions in their entirety, to the extent necessary, shall be severed 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.
(h) This Agreement may be executed in two or more counterparts,
each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
12
IN WITNESS WHEREOF, the parties hereto have duly executed this Third
Amended and Restated Registration Rights Agreement as of the date first written
above.
UTSTARCOM, INC.
By: /s/ Hong ▇▇▇▇▇ ▇▇
------------------------------------
Hong ▇▇▇▇▇ ▇▇
President and Chief Executive Officer
PREFERRED HOLDERS
SOFTBANK AMERICA INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇
------------------------------------
Vice President
SOFTBANK VENTURES INC.
By: /s/ Yoshitaka Kitao
------------------------------------
Yoshitaka Kitao
Chief Executive Officer
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▇▇▇▇▇▇ ▇▇▇▇
NARAY MOBILE TELECOM, INC.
By: _____________________________________
Name: ___________________________________
Title: __________________________________
***SIGNATURE PAGE FOR UTSTARCOM, INC.'S
THIRD AMENDED AND RESTATED
REGISTRATION RIGHTS AGREEMENT***
INTEL PACIFIC, INC.
By: /s/ ▇▇▇▇ ▇▇▇▇
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Print Name: ▇▇▇▇ ▇▇▇▇
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Title: Assistant Treasurer, Intel Corporation
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MATSUSHITA COMMUNICATION
INDUSTRIAL CO., LTD.
By: _____________________________________
Print Name: _____________________________
Title: __________________________________
MITSUBISHI ELECTRIC CORPORATION
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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Print Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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Title: Senior VP & Director
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***SIGNATURE PAGE FOR UTSTARCOM, INC.'S
THIRD AMENDED AND RESTATED
REGISTRATION RIGHTS AGREEMENT***
Investor:
By: /s/ ▇▇▇▇ ▇▇
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Print Name: ▇▇▇▇ ▇▇
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Title:
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By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇
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Print Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇
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Title:
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By: /s/ Shey Partners
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Print Name: Shey Partners
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Title:
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By: /s/ ▇▇▇▇ ▇▇▇▇▇
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Print Name: ▇▇▇▇ ▇▇▇▇▇
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Title:
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By: /s/ ▇▇▇▇▇▇ ▇▇
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Print Name: ▇▇▇▇▇▇ ▇▇
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Title:
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By: /s/ ▇▇▇▇ ▇▇
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Print Name: ▇▇▇▇ ▇▇
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Title:
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By: /s/ Taoyun Wang
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Print Name: Taoyun Wang
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Title:
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By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇ and ▇▇▇▇▇▇ ▇▇▇
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Print Name: ▇▇▇▇▇▇ Trust
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Title: Trustee
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By: /s/ ▇▇▇▇▇▇▇ ▇▇▇
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Print Name: ▇▇▇▇▇▇▇ ▇▇▇
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Title:
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By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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Print Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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Title:
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By: /s/ ▇▇▇▇ ▇▇
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Print Name: ▇▇▇▇ ▇▇
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Title:
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By: /s/ Weilia Wang
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Print Name: Weilia Wang
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Title:
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By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
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Print Name: ▇▇▇▇▇▇ ▇▇▇▇▇
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Title:
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By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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Print Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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Title:
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By: /s/ ▇▇▇▇ ▇▇▇
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Print Name: ▇▇▇▇ ▇▇▇
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Title:
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By: /s/ ▇▇▇▇▇▇ ▇▇
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Print Name: ▇▇▇▇▇▇ ▇▇
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Title:
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By: /s/ ▇▇▇▇ ▇. Te
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Print Name: ▇▇▇▇ ▇. Te
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Title:
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By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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Print Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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Title:
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By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
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Print Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
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Title:
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By: /s/ ▇▇▇▇▇ ▇▇▇
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Print Name: ▇▇▇▇▇ ▇▇▇
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Title:
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By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇
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Print Name: Shey Trust
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Title: Trustee
---------------------------------
***SIGNATURE PAGE FOR UTSTARCOM, INC.'S
THIRD AMENDED AND RESTATED
REGISTRATION RIGHTS AGREEMENT***