Exhibit 10.102
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (this "Agreement") is made and entered
into as of November 1, 2002 by and among P-COM, INC., a Delaware corporation
(the "Company"), and the Initial Holders (as defined below).
Pursuant to the Proposal, as defined in the Company's Restructuring
Proposal Statement dated October 28, 2002, as modified (the "Proposal
Statement"), and in conjunction with entry into this Agreement, the Company is
issuing its 7% Convertible Subordinated Notes due 2005, which comprise
Restructured Notes (as defined in the Proposal Statement), in the aggregate
principal amount of $22,390,000 for the benefit of the holders and beneficial
holders (prior to consummation of the Restructuring (as defined in the Proposal
Statement)) of the Company's 4 1/4% Convertible Subordinated Notes due 2002 (the
"Existing Notes") listed on Schedule I hereto (the "Initial Holders"), on whose
behalf Existing Notes are being delivered pursuant to the Proposal and accepted
by the Company for exchange in the Restructuring for Restructured Notes.
Pursuant to the Proposal, such acceptance thereby constitutes the Note Consent
and Letter of Transmittal delivered by or on behalf of each such Initial Holder
as a duly delivered counterpart to this Agreement and makes such Initial Holder
a party hereto and bound hereby. As an inducement to the Initial Holders to
effect delivery under the Proposal of Existing Notes in exchange for
Restructured Notes, the Company agrees with the Initial Holders, (i) for the
benefit of the Initial Holders and (ii) for the benefit of the beneficial owners
(including the Initial Holders) from time to time of the Restructured Notes and
of the underlying Common Stock issued upon conversion of the Restructured Notes
(each of the foregoing a "Holder" and, collectively, the "Holders"), as follows:
1. Definitions. Capitalized terms used herein without definition shall
have their respective meanings set forth in the Indenture. As used in this
Agreement, the following capitalized terms shall have the following meanings:
"Advice" means the receipt by such Holder of written notice from the
Company that the use of the Prospectus may be resumed, and receipt of copies of
any additional or supplemental filings that are incorporated by reference in the
Prospectus.
"Affiliate" of any specified person means any other person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified person. For the purposes of this definition,
"control" (including, with correlative meanings, the terms "controlling,"
"controlled by" and "under common control with"), as used with respect to any
person, shall mean the possession, directly or indirectly, of the power to
direct or cause the direction of the management or policies of such person,
whether through the ownership of voting securities or by agreement or otherwise.
Notwithstanding the foregoing, no individual shall be deemed to be an Affiliate
of a person solely by reason of his or her being an officer or director of such
person.
"Business Day" means any day other than a Saturday, a Sunday or a day on
which banking institutions in the State of New York are not required to be open.
"Closing Date" means the Restructuring Effective Date, as defined in the
Proposal Statement.
"Commission" means the Securities and Exchange Commission.
"Common Stock" means the common stock of the Company as the same exists at
the date of the execution of the Indenture or as such stock may be constituted
from time to time.
"Damages Payment Date" means each regular interest payment date with
respect to the Restructured Notes provided for in the Indenture and the
Restructured Notes.
"Effectiveness Target Date" has the meaning set forth in Section 3(a)
hereof.
"Exchange Act" means the Securities Exchange Act of 1934, as amended from
time to time, and the rules and regulations of the Commission promulgated
thereunder.
"Holder" has the meaning set forth in the preamble hereto.
"Indenture" means the Indenture dated as of November 1, 2002, by and
between the Company and State Street Bank and Trust Company of California, N.A.,
as trustee, pursuant to which the Restructured Notes are to be issued, as the
same may be amended, modified or supplemented from time to time in accordance
with the terms thereof.
"Initial Holders" has the meaning set forth in the preamble hereof.
"Liquidated Damages" has the meaning set forth in Section 4(a) hereof.
"Losses" has the meaning set forth in Section 9(d) hereof.
"Majority Holders" means the Holders of a majority of the aggregate
principal amount of securities registered under a Shelf Registration Statement
(provided that Holders of Common Stock issued upon conversion of Restructured
Notes shall be deemed to be Holders of the aggregate principal amount of
Restructured Notes from which such Common Stock was converted).
"Managing Underwriters" means the investment banker or investment bankers
and manager or managers that shall administer an Underwritten Offering pursuant
to Section 6 hereof of the securities covered by the Shelf Registration
Statement.
"Nasdaq" has the meaning set forth in Section 5(q) hereof.
"Person" or "person" means any individual, corporation, limited liability
company, partnership, joint venture, association, joint stock company, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
"Prospectus" means the prospectus included in any Shelf Registration
Statement (including, without limitation, a prospectus that discloses
information previously omitted from a prospectus filed as part of an effective
registration statement in reliance upon Rule 430A under
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the Securities Act), as amended or supplemented by any prospectus supplement,
with respect to the terms of the offering of any portion of Transfer Restricted
Securities, covered by such Shelf Registration Statement, and all amendments and
supplements to the Prospectus, including post-effective amendments, and all
material incorporated by reference into such Prospectus.
"Registration Default" has the meaning set forth in Section 4(a) hereof.
"Requisite Information" has the meaning set forth in Section 5(m) hereof.
"Securities Act" means the Securities Act of 1933, as amended from time to
time, and the rules and regulations of the Commission promulgated thereunder.
"Shelf Registration Period" has the meaning set forth in Section 3(b)
hereof.
"Shelf Registration Statement" means a shelf registration statement of the
Company pursuant to the provisions of Section 3 hereof which covers the Transfer
Restricted Securities, on an appropriate form under Rule 415 under the
Securities Act, or any similar rule that may be adopted by the Commission,
amendments and supplements to such registration statement, including
post-effective amendments, in each case including the Prospectus contained
therein, all exhibits thereto and all material incorporated by reference
therein.
"Transfer Restricted Securities" means each Restructuring Note and the
Common Stock issuable upon conversion thereof until (i) the date on which such
Restructuring Note or the Common Stock issuable upon conversion thereof has been
effectively registered under the Securities Act and disposed of pursuant to an
effective registration statement, (ii) the date on which such Restructuring Note
or the Common Stock issuable upon conversion thereof is distributed to the
public pursuant to Rule 144 under the Securities Act (or any similar provision
then in effect) or is saleable pursuant to Rule 144(k) under the Securities Act
and all legends thereon relating to transfer restrictions have been or are
capable of being removed, or (iii) the date on which such Restructuring Note or
the Common Stock issuable upon conversion thereof ceases to be outstanding.
"Trust Indenture Act" means the Trust Indenture Act of 1939 (15 U.S. Code
Sections 77aaa-77bbbb) as in effect on the date of execution of the Indenture.
"Trustee" means the trustee with respect to the Restructured Notes under
the Indenture.
"Underwritten Offering" or "Underwritten Registration" means a registration
in which securities of the Company are sold to one or more underwriters for
reoffering to the public pursuant to Section 6.
2. Securities Subject to This Agreement. The securities entitled to the
benefits of this Agreement are the Transfer Restricted Securities.
3. Shelf Registration.
(a) The Company shall, within 90 days after Closing Date, file with
the Commission and thereafter shall use reasonable efforts to cause to be
declared effective under
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the Securities Act by the date that is the 180/th/ day after the Closing Date
(the "Effectiveness Target Date"), a Shelf Registration Statement relating to
the offer and sale of the Transfer Restricted Securities by the Holders from
time to time in accordance with the methods of distribution elected by such
Holders and set forth in such Shelf Registration Statement.
(b) The Company shall use reasonable efforts to keep the Shelf
Registration Statement continuously effective in order to permit the Prospectus
forming a part thereof to be usable by Holders for a period that will terminate
on the earlier of (i) the first date when all the Transfer Restricted Securities
covered by the Shelf Registration Statement have been sold pursuant to the Shelf
Registration Statement, (ii) the first date on which there ceases to be
outstanding any Transfer Restricted Securities, or (iii) the first date on which
the Transfer Restricted Securities may be sold pursuant to Rule 144(k) under the
Securities Act (in any such case, such period being called the "Shelf
Registration Period").
(c) The Company shall prepare and file with the Commission such
amendments, including post-effective amendments, to the Shelf Registration
Statement as may be reasonably necessary to keep such Registration Statement
continuously effective for the applicable time period; cause the related
Prospectus to be supplemented by any required Prospectus supplement and as so
supplemented to be filed pursuant to Rule 424 (or any similar provisions then in
force) under the Securities Act; and comply with the provisions of the
Securities Act and the Exchange Act with respect to the disposition of all
securities covered by such Shelf Registration Statement during the applicable
period in accordance with the intended methods of disposition by the sellers
thereof set forth in such Shelf Registration Statement as so amended or in such
Prospectus as so supplemented.
(d) Certain Notices: Suspension of Sales. Each Holder agrees by
acquisition of such Transfer Restricted Securities that, upon receipt of any
notice from the Company of the happening of any event of the kind described in
Section 5(c)(2)(ii), 5(c)(2)(iii), 5(c)(2)(iv) or 5(c)(2)(v) hereof, such Holder
will forthwith discontinue disposition of such Transfer Restricted Securities
covered by such Registration Statement and Prospectus (other than in
transactions exempt from the registration requirements under the Securities Act)
until such Holder's receipt of the copies of the supplemented or amended
Prospectus contemplated by Section 5(i) hereof, or until Advice by the Company
that the use of the applicable Prospectus may be resumed, and, in either case,
has received copies of any additional or supplemental filings that are
incorporated or deemed to be incorporated by reference in such Prospectus.
4. Liquidated Damages.
(a) The Company and the Initial Holders agree that the Holders will
suffer damages if the Company fails to fulfill its obligations pursuant to this
Agreement and that it would not be possible to ascertain the extent of such
damages. Accordingly, the Company hereby agrees to pay liquidated damages
("Liquidated Damages") to each Holder in the event (i) such Shelf Registration
Statement is not declared effective by the Commission on or prior to the
Effectiveness Target Date, or (ii) the Shelf Registration Statement is declared
effective but thereafter ceases to be continuously effective or usable in
connection with resales of Transfer Restricted Securities during the Shelf
Registration Period for a period of time that exceeds 90 days in the aggregate
in any period of 365 consecutive days (with no Liquidated Damages being
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due for such period of time up to and including 90 days in any period of 365
consecutive days) (each, a "Registration Default"); provided a particular Holder
shall not be entitled to receive Liquidated Damages in the event that the Shelf
Registration Statement is not declared effective or usable by such Holder as a
result of the failure of such Holder to provide Requisite Information with
respect to it. In the event of any such Registration Default, the Company shall
accrue Liquidated Damages to each Holder during the period of the Registration
Default at a rate of 0.5% per annum on the outstanding principal amount of the
Restructured Notes held by such Holder and, if applicable, on an equivalent
basis per share (subject to adjustment in the event of any stock split, stock
combination, stock dividends and the like) of Common Stock constituting Transfer
Restricted Securities held by such Holder. Such rate shall increase by 0.5% per
annum on each 90/th/ day of the period of the Registration Default. The period
of a Registration Default under (i) above will begin on the Effectiveness Target
Date and shall be cured on the date that the Shelf Registration Statement is
declared effective by the Commission. The period of a Registration Default under
(ii) above will begin on the 90/th/ day during which the Shelf Registration
Statement ceases to be effective or usable and shall be cured on the date that
the Shelf Registration Statement is again effective or usable. All accrued
Liquidated Damages will be paid by the Company on each Damages Payment Date in
cash. Such payment will be made to the Holder(s) of the Global Notes (as defined
in the Indenture) by wire transfer of immediately available funds or by federal
funds check (the aggregate amount of such payment being rounded up to the
nearest whole cent on account of any fractions of a cent otherwise included
therein) and to Holders of Transfer Restricted Securities represented by
Certificated Notes (as defined in the Indenture), if any, by wire transfer to
the accounts specified by them or by mailing checks to their registered
addresses if no such accounts have been specified (the respective amounts of
such payments to such Holders of Certificated Notes being rounded up to the
nearest whole cent on account of any fraction of a cent otherwise included
thereby). Following the cure of all Registration Defaults, the accrual of
Liquidated Damages will cease.
(b) The parties hereto agree that the Liquidated Damages provided for
in this Section 4 constitute a reasonable estimate of the damages that may be
incurred by Holders of Transfer Restricted Securities by reason of the failure
of the Shelf Registration Statement to be declared effective in accordance with
the provisions hereof.
5. Registration Procedures. In connection with any Shelf Registration
Statement, the following provisions shall apply:
(a) The Company shall furnish to the Initial Holders, the Holders,
the Managing Underwriters, if any, and their respective counsel, not less than
five Business Days prior to the filing thereof with the Commission, a copy of
any Shelf Registration Statement and each amendment thereof, and each amendment
or supplement, if any, to the Prospectus included therein, and shall use its
best efforts to reflect in each such document, when so filed with the
Commission, such comments as the Initial Holders and the Holders or their
counsel may reasonably propose.
(b) The Company shall use its best efforts to ensure that (i) any
Shelf Registration Statement and any amendment thereto and any Prospectus
forming part thereof and any amendment or supplement thereto complies in all
material respects with the Securities Act and the rules and regulations
thereunder, (ii) assuming the Requisite Information provided by
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Holders is true and correct, any Shelf Registration Statement and any amendment
or supplement thereto does not, when it becomes effective, contain an untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not misleading and
(iii) assuming the Requisite Information provided by Holders of Transfer
Restricted Securities is true and correct, any Prospectus forming part of any
Shelf Registration Statement, and any amendment or supplement to such
Prospectus, does not include an untrue statement of a material fact or omit to
state a material fact necessary in order to make the statements, in the light of
the circumstances under which they were made, not misleading.
(c) (1) The Company shall advise the Initial Holders, the Holders of
Transfer Restricted Securities named in the Shelf Registration Statement and the
Managing Underwriters, if any, and, if requested by the Initial Holders, any
such Holder or the Managing Underwriters, if any, and confirm such advice in
writing, when a Shelf Registration Statement or any amendment thereto has been
filed with the Commission and when the Shelf Registration Statement or any
post-effective amendment thereto has become effective.
(2) The Company shall advise the Initial Holders, the Holders of
Transfer Restricted Securities named in the Shelf Registration Statement, the
Managing Underwriters, if any, and their respective counsel and, if requested by
any such person, confirm such advice in writing:
(i) of any request by the Commission for amendments or
supplements to the Shelf Registration Statement or the Prospectus included
therein or for additional information;
(ii) of the initiation by the Commission of proceedings
relating to a stop order suspending the effectiveness of the Shelf
Registration Statement;
(iii) of the issuance by the Commission of any stop order
suspending the effectiveness of the Shelf Registration Statement;
(iv) of the receipt by the Company of any notification
with respect to the suspension of the qualification of the securities
included therein for sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose; and
(v) of the occurrence of the existence of any fact and
the happening of any event (including, without limitation, pending
negotiations relating to, or the consummation of, a transaction or the
occurrence of any event which would require additional disclosure of
material non-public information by the Company in the Shelf Registration
Statement as to which the Company has a bona fide business purpose for
preserving confidential or which renders the Company unable to comply with
Commission requirements) that, in the opinion of the Company, makes untrue
any statement of a material fact made in its Shelf Registration Statement,
the Prospectus or any amendment or supplement thereto or any document
incorporated by reference therein or requires the making of any changes in
the Shelf Registration Statement or the Prospectus so that, as of such
date, the statements therein are not misleading and do not omit to state a
material fact required to be stated therein or necessary to make the
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statements therein (in the case of the Prospectus, in light of the
circumstances under which they were made) not misleading.
Such Advice may be accompanied by an instruction to suspend the use of the
Prospectus until the requisite changes have been made.
(d) The Company shall use its best efforts to obtain the withdrawal
of any order suspending the effectiveness of the Shelf Registration Statement,
or the lifting of any suspension of the qualification (or exemption from
qualification) of the Transfer Restricted Securities for sale in any
jurisdiction, at the earliest possible time.
(e) The Company shall furnish to each selling Holder named in the
Shelf Registration Statement and each Managing Underwriter, if any, without
charge, at least one conformed copy of such Shelf Registration Statement and any
post-effective amendment thereto, including financial statements and schedules.
Upon written request, the Company shall furnish to each selling Holder named in
the Shelf Registration Statement and each Managing Underwriter, if any, without
charge, one copy of all exhibits to such Shelf Registration Statement (including
those incorporated by reference).
(f) The Company shall, during the Shelf Registration Period, deliver
to each Holder of Transfer Restricted Securities named in the Shelf Registration
Statement and each Managing Underwriter, if any, without charge, as many copies
of the Prospectus (including each preliminary Prospectus) included in such Shelf
Registration Statement and any amendment or supplement thereto as such Holder or
Managing Underwriters may reasonably request; and, subject to any notice by the
Company in accordance with Section 7(b), the Company consents to the use of the
Prospectus or any amendment or supplement thereto by each of the selling Holders
and such underwriters for the purposes of offering and resale of the Transfer
Restricted Securities covered by the Prospectus or any amendment or supplement
thereto.
(g) Prior to the offering of Transfer Restricted Securities pursuant
to the Shelf Registration Statement, the Company shall use its best efforts to
register or qualify or cooperate with the Holders of Transfer Restricted
Securities named therein, the Managing Underwriters, if any, and their
respective counsel in connection with the registration or qualification (or
exemption from such registration or qualification) of such Transfer Restricted
Securities for offer and sale under the securities or blue sky laws of such
jurisdictions of the United States as any such Holders or Managing Underwriters,
if any, reasonably request in writing; keep each such registration or
qualification (or exemption therefrom) effective during the period the Shelf
Registration Statement is required to be kept effective and do any and all other
acts or things necessary or advisable to enable the disposition in such
jurisdictions of the Transfer Restricted Securities covered by the Shelf
Registration Statement; provided, however, that the Company will not be required
to qualify generally to do business in any jurisdiction where it is not then so
qualified or to take any action which would subject it to general service of
process or to taxation in any such jurisdiction where it is not then so subject.
(h) The Company shall cooperate with the Holders of Transfer
Restricted Securities and underwriters, if any, to facilitate the timely
preparation and delivery of certificates representing Transfer Restricted
Securities to be sold pursuant to the Shelf Registration
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Statement, free of any restrictive legends and in such denominations and
registered in such names as such Holders or underwriters may request in writing
at least two Business Days prior to sales of securities pursuant to such Shelf
Registration Statement.
(i) Upon the occurrence of any event contemplated by Section
5(c)(2)(v) hereof, subject to Section 5(s), the Company shall promptly prepare a
post-effective amendment to the Shelf Registration Statement or an amendment or
supplement to the related Prospectus or any document incorporated therein by
reference or file any other required document so that as thereafter delivered to
purchasers of the Transfer Restricted Securities covered thereby, the Prospectus
will not include an untrue statement of a material fact or omit to state any
material fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
(j) Not later than the effective date of any such Shelf Registration
Statement hereunder, the Company shall cause to be provided CUSIP numbers for
the Transfer Restricted Securities registered under such Shelf Registration
Statement, and provide the Trustee with printed certificates for such Transfer
Restricted Securities where necessary, in a form eligible for deposit with The
Depository Trust Company.
(k) The Company shall use its best efforts to comply with all
applicable rules and regulations of the Commission and shall make generally
available to its security holders in a regular filing on Form 10-Q or Form 10-K
an earnings statement satisfying the provisions of Rule 158 under the Securities
Act (which need not be audited) for the twelve-month period commencing after
effectiveness of the Shelf Registration Statement.
(l) To the extent required by the Trust Indenture Act, the Company
shall cause the Indenture to be qualified under the Trust Indenture Act in a
timely manner.
(m) The Company shall file, within five Business Days of the receipt
from any Holder with respect to such information regarding the distribution of
such Holder's Transfer Restricted Securities with respect to such Holder as is
required by law to be disclosed in the applicable Shelf Registration Statement
(the "Requisite Information"), a Prospectus supplement pursuant to Rule 424
under the Securities Act to amend or supplement such Shelf Registration
Statement to include in the Shelf Registration Statement the Requisite
Information as to such Holder (and the Transfer Restricted Securities held by
such Holder), and the Company shall provide such Holder within ten (10) Business
Days of such notice with a copy of such Prospectus as so amended or supplemented
containing the Requisite Information in order to permit such Holder to comply
with the Prospectus delivery requirements of the Securities Act in a timely
manner with respect to any proposed disposition of such Holder's Transfer
Restricted Securities. No Holder of Transfer Restricted Securities shall be
entitled to the benefit of any Liquidated Damages under Section 4 of this
Agreement or be entitled to use the Prospectus unless and until such Holder
shall have furnished the Company the Requisite Information.
(n) If requested, the Company shall promptly incorporate in the Shelf
Registration Statement or Prospectus, if necessary pursuant to a supplement or
post-effective amendment to the Shelf Registration Statement, such information
as the Managing Underwriters, if any, or the Majority Holders reasonably request
to have included therein and shall make all
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required filings of such Prospectus supplement or post-effective amendment as
soon as practicable after the Company is notified of the matters to be
incorporated in such Prospectus supplement or post-effective amendment.
(o) The Company shall enter into such agreements on terms reasonably
acceptable to the Company (including underwriting agreements) in form, scope and
substance as are customary in underwritten offerings, and take all other
reasonable actions necessary to facilitate the registration or the disposition
of the Transfer Restricted Securities included in the Shelf Registration
Statement.
(p) The Company shall make reasonably available at reasonable times
for inspection by the Holders of Transfer Restricted Securities to be registered
thereunder, any Managing Underwriter, and any attorney, accountant or other
agent retained by the Holders or such Managing Underwriters, at the office where
normally kept during normal business hours, all financial and other records,
pertinent corporate documents and properties of the Company and its
subsidiaries, and cause the Company's officers, directors and employees to
supply all relevant information reasonably requested by the Holders, Managing
Underwriters, attorney, accountant or other agent in connection with the Shelf
Registration Statement as is customary for similar due diligence examinations,
provided, however, that such persons shall first agree in writing with the
Company that any information that is reasonably and in good faith designated by
the Company in writing as confidential at the time of delivery of such
information shall be kept confidential by such persons.
(q) The Company shall (i) list all Common Stock covered by such Shelf
Registration Statement on any securities exchange on which the Common Stock is
then listed or (ii) authorize for quotation on the National Association of
Securities Dealers Automated Quotation System ("Nasdaq") or the National Market
System or SmallCap Market of Nasdaq all Common Stock covered by such Shelf
Registration Statement if the Common Stock is then so authorized for quotation.
(r) The Company shall use its reasonable efforts to take all other
steps necessary to effect the registration, offering and sale of the Transfer
Restricted Securities covered by the Shelf Registration Statement contemplated
hereby.
(s) Notwithstanding any provision of this Section 5 to the contrary,
the Company shall not be required to amend or supplement the Shelf Registration
Statement pursuant to the requirements of Sections 5(b), 5(c), 5(i) or 5(r)
hereof if (i) such amendment or supplement would require the Company to disclose
a material financing, acquisition or corporate transaction and the Board of
Directors shall have determined that such disclosure is not in the best
interests of the Company and the holders of its outstanding Common Stock or (ii)
the Board of Directors shall have determined in good faith that there is a valid
business purpose or reason for suspending the use of the Prospectus included in
such Shelf Registration Statement in accordance with Section 5(i) hereof instead
of making such amendment or supplement, provided that in each such case the
Company complies with its obligations, if any, to pay Liquidated Damages
pursuant to Section 4 hereof.
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6. Underwritten Offering. The Holders who desire to do so may sell
Transfer Restricted Securities in an Underwritten Offering. In any such
Underwritten Offering, the investment banker or bankers and manager or managers
that will administer the offering will be selected by, and the underwriting
arrangements with respect thereto will be approved by the Holders of a majority
of the Transfer Restricted Securities to be included in such offering; provided,
however, that (i) such investment bankers and managers and underwriting
arrangements must be reasonably satisfactory to the Company and (ii) the Company
shall not be obligated to arrange for more than one Underwritten Offering during
the effectiveness period of the Shelf Registration Statement. No Holder may
participate in any Underwritten Offering contemplated hereby unless such Holder
(a) agrees to sell such Holder's Transfer Restricted Securities in accordance
with any approved underwriting arrangements, (b) completes and executes all
reasonable questionnaires, powers of attorney, indemnities, underwriting
agreements, lock-up letters and other documents required under the terms of such
approved underwriting arrangements and (c) at least 50% of the outstanding
Transfer Restricted Securities are included in such Underwritten Offering. The
Holders participating in any Underwritten Offering shall be responsible for any
expenses customarily borne by selling securityholders, including underwriting
discounts and commissions and fees and expenses of counsel to the selling
securityholders and shall reimburse the Company for the fees and disbursements
of their counsel, their independent public accountants and any printing expenses
incurred in connection with such Underwritten Offerings. Notwithstanding the
foregoing or the provisions of Section 6(a) hereof, upon receipt of a request
from the Managing Underwriter or a representative of Holders of a majority of
the Transfer Restricted Securities outstanding to prepare and file an amendment
or supplement to the Shelf Registration Statement and Prospectus in connection
with an Underwritten Offering, the Company may delay the filing of any such
amendment or supplement for up to 90 days if the Company in good faith has a
valid business reason for such delay.
The Company shall in connection with an Underwritten Offering in accordance
with the provisions of this Section:
(a) if requested, promptly include or incorporate in a Prospectus
supplement or post-effective amendment to a Shelf Registration Statement, such
information as the Managing Underwriters administering an Underwritten Offering
of Transfer Restricted Securities registered thereunder reasonably request to be
included therein and to which the Company does not reasonably object and shall
make all required filings of such Prospectus supplement or post-effective
amendment as soon as practicable after they are notified of the matters to be
included or incorporated in such Prospectus supplement or post-effective
amendment;
(b) make such representations and warranties to the Holders and the
underwriters in form, substance and scope as are customarily made by the Company
to underwriters in primary underwritten offerings;
(c) obtain opinions of counsel to the Company and updates thereof
(which counsel and opinions (in form, scope and substance) shall be reasonably
satisfactory to the Managing Underwriters) addressed to each Holder and the
underwriters covering such matters as are customarily covered in opinions
requested in underwritten offerings and such other matters as may be reasonably
requested by such Holders and underwriters (it being agreed that the
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matters to be covered by such opinion or written statement by such counsel
delivered in connection with such opinions shall include in customary form,
without limitation, as of the date of the opinion and as of the effective date
of the Shelf Registration Statement or most recent post-effective amendment
thereto, as the case may be, the absence from such Shelf Registration Statement
and the prospectus included therein, as then amended or supplemented, including
the documents incorporated by reference therein, of an untrue statement of a
material fact or the omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading);
(d) obtain "cold comfort" letters and updates thereof from the
independent public accountants of the Company (and, if necessary, any other
independent public accountants of any subsidiary of the Company or of any
business acquired by the Company for which financial statements and financial
data are, or are required to be, included in the Shelf Registration Statement),
addressed to each Holder and the underwriters in customary form and covering
matters of the type customarily covered in "cold comfort" letters in connection
with primary underwritten offerings; and
(e) deliver such documents and certificates as may be reasonably
requested by any such Holders and the Managing Underwriters, including those to
evidence compliance with Section 3(c)(2)(v) and with any customary conditions
contained in the underwriting agreement or other agreement entered into by the
Company.
7. Holders' Agreements. Each Holder of Transfer Restricted Securities, by
the acquisition of such Transfer Restricted Securities agrees:
(a) to furnish the Requisite Information required to be furnished
pursuant to Section 5(m) hereof. The Company may exclude from any Shelf
Registration Statement the Transfer Restricted Securities of any Holder who does
not furnish such Requisite Information. Each Holder of Transfer Restricted
Securities shall promptly furnish to the Company all such information required
to be disclosed in order to make the Requisite Information previously furnished
to the Company by such Holder not materially misleading;
(b) that, upon receipt of a notice from the Company that the
Prospectus and Shelf Registration Statement are unavailable for resales of
Transfer Restricted Securities, forthwith to discontinue disposition of its
Transfer Restricted Securities pursuant to the Shelf Registration Statement, and
not to deliver any Prospectus forming a part thereof until receipt of the
amended or supplemented Shelf Registration Statement or Prospectus, as
applicable, as contemplated by Section 5(i) hereof, or until receipt of the
Advice; and
(c) that sales of such Transfer Restricted Securities pursuant to a
Shelf Registration Statement shall only be made in the manner set forth in such
currently effective Shelf Registration Statement.
8. Registration Expenses. The Company shall bear all expenses incurred in
connection with the performance of its obligations under Sections 2, 3, 4 and 5
hereof. Notwithstanding the foregoing or anything in this Agreement to the
contrary, each Holder shall
11
pay all underwriting discounts and commissions of any underwriters with respect
to any Transfer Restricted Securities sold by it.
9. Indemnification and Contribution.
(a) In connection with the Shelf Registration Statement, the Company
will indemnify and hold harmless each Holder of Transfer Restricted Securities
covered thereby, the directors, officers, employees and agents of each such
Holder and each person who controls any such Holder within the meaning of either
Section 15 of the Securities Act or Section 20 of the Exchange Act from and
against any and all losses, claims, liabilities, expenses and damages, joint or
several (including any and all investigative, legal and other expenses
reasonably incurred in connection with, and any amount paid in settlement of,
any action, suit or proceeding or any claim asserted), to which they, or any of
them, may become subject under the Securities Act, the Exchange Act or other
federal, state or foreign statutory law or regulation, at common law or
otherwise, insofar as such losses, claims, liabilities, expenses and damages
arise out of or are based upon any untrue statement or alleged untrue statement
of a material fact contained in the Shelf Registration Statement as originally
filed or in any amendment thereof, or in any preliminary Prospectus or
Prospectus, or in any amendment thereof or supplement thereto, or the omission
or alleged omission to state in such documents a material fact required to be
stated therein or necessary to make the statements therein not misleading;
provided, that (i) the Company will not be liable to the extent that any such
loss, claim, liability expense or damage arises out of or is based on any such
untrue statement or omission or alleged untrue statement or omission made
therein in reliance on and in conformity with information relating to any Holder
of Transfer Restricted Securities furnished in writing to the Company by any
such Holder expressly for inclusion therein and (ii) the Company will not be
liable to any Holder of Transfer Restricted Securities under the indemnity
agreement in this Section 9(a) with respect to any preliminary Prospectus or a
Prospectus that is subsequently amended or supplemented to the extent that any
such loss, claim, liability, expense or damage of such Holder results from an
untrue statement of a material fact contained in, or the omission of a material
fact from, the preliminary Prospectus or Prospectus which untrue statement or
omission was corrected in the final Prospectus or the Prospectus as amended or
supplemented, as the case may be, if the Company had previously furnished copies
thereof to such Holder within a reasonable amount of time prior to such sale or
such confirmation. This indemnity agreement will be in addition to any liability
which the Company might otherwise have.
The Company also agrees to indemnify or contribute to the losses, claims,
liabilities, expenses and damages, joint or several (including any and all
investigative, legal and other expenses reasonably incurred in connection with,
and any amount paid in settlement of, any action, suit or proceeding or any
claim asserted) of any underwriters of Transfer Restricted Securities registered
under the Shelf Registration Statement, their officers and directors and each
person who controls such underwriters on substantially the same basis as that of
the indemnification of the selling Holders provided in this Section 9(a) and
shall, if requested by any Holder, enter into a customary underwriting agreement
reflecting such agreement, as provided in Section 5(o) hereof.
(b) Each Holder of Transfer Restricted Securities covered by the
Shelf Registration Statement will severally indemnify and hold harmless the
Company, each person
12
who controls the Company within the meaning of either Section 15 of the
Securities Act or Section 20 of the Exchange Act, each director of the Company
and each officer of the Company to the same extent as the foregoing indemnity
from the Company to each such Holder, but only insofar as losses, claims,
liabilities, expenses or damages arise out of or are based on any untrue
statement or omission or alleged untrue statement or omission made in reliance
on and in conformity with information relating to such Holder furnished to the
Company by or on behalf of such Holder expressly for use in the Shelf
Registration Statement as originally filed or in any amendment thereof, or in
any preliminary Prospectus or Prospectus, or in any amendment thereof or
supplement thereto. This indemnity agreement will be in addition to any
liability that such Holder might otherwise have.
(c) Any party that proposes to assert the right to be indemnified under
this Section 9 will, promptly after receipt of notice of commencement of any
action against such party in respect of which a claim is to be made against an
indemnifying party or parties under this Section 9, notify each indemnifying
party of the commencement of such action, enclosing a copy of all papers served,
but the omission so to notify such indemnifying party (i) will not relieve it
from any liability that it may have to any indemnified party under the foregoing
provisions of this Section 9 unless, and only to the extent that, it did not
otherwise learn of such action and such omission results in the forfeiture of
substantive rights or defenses by the indemnifying party and (ii) will not, in
any event relieve the indemnifying party from any obligations to any indemnified
party other than the indemnification obligations in Sections 9(a) and 9(b)
hereof. If any such action is brought against any indemnified party and it
notifies the indemnifying party of its commencement, the indemnifying party will
be entitled to participate in and, to the extent that it elects by delivering
written notice to the indemnified party promptly after receiving notice of the
commencement of the action from the indemnified party, jointly with any other
indemnifying party similarly notified, to assume the defense of the action, with
counsel satisfactory to the indemnified party, and after notice from the
indemnifying party to the indemnified party of its election to assume the
defense, the indemnifying party will not be liable to the indemnified party for
any legal or other expenses except as provided below and except for the
reasonable costs of investigation subsequently incurred by the indemnified party
in connection with the defense. The indemnified party will have the right to
employ its own counsel in any such action, but the fees, expenses and other
charges of such counsel will be at the expense of such indemnified party unless
(1) the employment of counsel by the indemnified party has been authorized in
writing by the indemnifying party, (2) the indemnified party has reasonably
concluded (based on advice of counsel to the indemnified party) that there may
be legal defense available to it or other available indemnified parties that are
different from or in addition to those available to the indemnifying party, (3)
a conflict or potential conflict exists (based on advice of counsel to the
indemnified party) between the indemnified party and the indemnifying party (in
which case the indemnifying party will not have the right to direct the defense
of such action on behalf of the indemnified party) or (4) the indemnifying party
has not in fact employed counsel to assume the defense of such action within a
reasonable time after receiving notice of the commencement of the action, in
each of which cases the reasonable fees, disbursements and other charges of
counsel will be at the expense of the indemnifying party or parties. It is
understood that the indemnifying party or parties shall not, in connection with
any proceeding or related proceedings in the same jurisdiction, be liable for
the reasonable fees, disbursements and other charges of more than one separate
firm admitted to practice in such jurisdiction at any one time for all such
indemnified party or parties. Such firm shall be
13
designated in writing by the Majority Holders in the case of parties indemnified
pursuant to Section 9(a) and by the Company, in the case of parties indemnified
pursuant to Section 9(b). All such fees, disbursements and other charges will be
reimbursed by the indemnifying party promptly as they are incurred. No
indemnifying party shall, without the prior written consent of each indemnified
party, settle or compromise or consent to the entry of any judgment in any
pending or threatened claim, action or proceeding relating to the matters
contemplated by this Section 9 (whether or not any indemnified party is a party
thereto), unless such settlement, compromise or consent includes an
unconditional release of each indemnified party from all liability arising or
that may arise out of such claim, action or proceeding.
(d) In order to provide for just and equitable contribution in
circumstances in which the indemnification provided for in the foregoing
paragraphs of this Section 9 is applicable in accordance with its terms but for
any reason is held to be unavailable from the Company or the Holders of Transfer
Restricted Securities, or insufficient, the Company and such Holders will
contribute to the total losses, claims, liabilities, expenses and damages
(including any investigative, legal and other expenses reasonably incurred in
connection with, and any amount paid in settlement of, any action, suit or
proceeding or any claim asserted, but after deducting any contribution received
by the Company from persons other than such Holders, such as persons who control
the Company within the meaning of the Securities Act or the Exchange Act and
officers and directors of the Company, who also may be liable for contribution)
(collectively, "Losses") to which the Company and any one or more of such
Holders of Transfer Restricted Securities may be subject in such proportion as
shall be appropriate to reflect the relative benefits received by the Company on
the one hand and such Holders on the other. The relative benefits received by
the Company shall be deemed to be equal to the sum of (x) the value to the
Company of the exchange of Existing Notes for Restructured Notes in the
Restructuring and (y) the total amount of Liquidated Damages, if any, which the
Company was not required to pay as a result of registering the securities
covered by the Shelf Registration Statement which resulted in such Losses.
Benefits received by the Holders shall be deemed to be equal to the value of
receiving Restructured Notes or Common Stock issuable upon conversion thereof,
as applicable, registered under the Securities Act. Benefits received by any
underwriter shall be deemed to be equal to the total underwriting discounts and
commissions, as set forth on the cover page of the Prospectus forming a part of
the Shelf Registration Statement which resulted in such Losses. If, but only if,
the allocation provided by the foregoing sentence is not permitted by applicable
law, the allocation of contribution shall be made in such proportion as is
appropriate to reflect not only the relative benefits referred to in the
foregoing sentence but also the relative fault of the Company, on the one hand,
and the Holders, on the other, with respect to the statements or omissions which
resulted in such loss, claim, liability, expense or damage, or action in respect
thereof, as well as any other relevant equitable considerations with respect to
such offering. Such relative fault shall be determined by reference to whether
the untrue or alleged untrue statement of a material fact or omission or alleged
omission to state a material fact relates to information supplied by the Company
or the Holders, the intent of the parties and their relative knowledge, access
to information and opportunity to correct or prevent such statement or omission.
The Company and the Holders agree that it would not be just and equitable if
contributions pursuant to this Section 9(d) were to be determined by pro rata
allocation (even if the Holders were treated as one entity for such purpose) or
by any other method of allocation which does not take into account the equitable
considerations referred to herein. The amount paid or payable by an indemnified
party as a result of the loss, claim, liability, expense or
14
damage, or action in respect thereof, referred to above in this Section 9(d)
shall be deemed to include, for purpose of this Section 9(d), any legal or other
expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. No person found guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) will be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The Holders' obligations to
contribute as provided in this Section 9(d) are several and not joint. For
purposes of this Section 9(d), any person who controls the Company or a Holder
within the meaning of the Securities Act will have the same rights to
contribution as that party, and each officer or director of the Company or such
Holder will have the same rights to contribution, as the Company or such Holder,
as applicable, subject in each case to the provisions hereof. Any party entitled
to contribution promptly after receipt of notice of commencement of any action
against such party in respect of which a claim for contribution may be made
under this Section 9(d), will notify any such party or parties from whom
contribution may be sought, but the omission so to notify will not relieve the
party or parties from whom contribution may be sought from any other obligation
it or they may have under this Section 9(d). No party will be liable for
contribution with respect to any action or claim settled without its written
consent (which consent will not be unreasonably withheld or delayed).
(e) The indemnity and contribution agreements contained in this Section
9 will remain in full force and effect, regardless of any investigation made by
or on behalf of any Holder or the Company or any of the officers, directors or
controlling persons referred to in this Section 9, and will survive the sale by
a Holder of securities covered by the Shelf Registration Statement.
10. Rules 144 and 144A. The Company shall use its best efforts to file the
reports required to be filed by it under the Securities Act and the Exchange Act
in a timely manner and, if at any time it is not required to file such reports
but in the past had been required to or did file such reports, it will, upon the
request of any holder of Transfer Restricted Securities, make available other
information as reasonably required by, and so long as necessary to permit, sales
of its Transfer Restricted Securities pursuant to Rule 144 and Rule 144A.
Notwithstanding the foregoing, nothing in this Section 10 shall be deemed to
require the Company to register any of its securities pursuant to the Exchange
Act.
11. Miscellaneous.
(a) Remedies. In the event of a breach by the Company of its
obligations under this Agreement, each Holder, in addition to being entitled to
exercise all rights granted by law, including recovery of damages, will be
entitled to specific performance of its rights under this Agreement. The Company
agrees that monetary damages (including the Liquidated Damages contemplated
hereby) would not be adequate compensation for any loss incurred by reason of a
breach by it of the provisions of this Agreement and hereby agrees to waive the
defense in any action for specific performance that a remedy at law would be
adequate. The remedies provided herein are cumulative and not exclusive of any
remedies provided by law; provided, that monetary damages relating solely to a
Registration Default shall be limited to the amount of Liquidated Damages
calculated in accordance with Section 4 hereof.
15
(b) No Inconsistent Agreements. The Company has not, as of the date
hereof, entered into, nor shall it, on or after the date hereof, enter into, any
agreement with respect to its securities that is inconsistent with the rights
granted to the Holders herein or otherwise conflicts with the provisions hereof.
(c) Amendments and Waivers. The provisions of this Agreement, including
the provisions of this sentence, may not be amended, qualified, modified or
supplemented, and waivers or consents to departures from the provisions hereof
may not be given, unless the Company has obtained the written consent of the
Holders of at least a majority of the then outstanding aggregate principal
amount of Transfer Restricted Securities; provided that, with respect to any
matter that directly or indirectly affects the rights of any Initial Holder
hereunder, the Company shall obtain the written consent of each such Initial
Holder which such amendment, qualification, supplement, waiver or consent is to
be effective. Notwithstanding the foregoing (except the foregoing proviso), a
waiver or consent to departure from the provisions hereof with respect to a
matter that relates exclusively to the rights of Holders whose securities are
being sold pursuant to a Shelf Registration Statement and that does not directly
or indirectly affect the rights of other Holders may be given by the Majority
Holders determined on the basis of Restructured Notes being sold rather than
registered under such Shelf Registration Statement.
(d) Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand-delivery, registered or
certified first-class mail, telex, telecopier, or air courier guaranteeing
overnight delivery:
(1) if to a Holder, at the most current address given by such
Holder to the Company in accordance with the provisions of this Section 11(d) or
in any Requisite Information delivered to the Company by such Holder;
(2) if to the Initial Holders, initially at the address set forth
on Schedule I hereto in relation to such Initial Holder; and
(3) if to the Company, initially at its address set forth on the
signature page hereof.
The Initial Holders or the Company by notice to the other may designate, in
accordance with the provisions of this Section 11(d), additional or different
addresses for subsequent notices or communications.
All such notices and communications shall be deemed to have been duly
given: at the time delivered by hand, if personally delivered; five Business
Days after being deposited in the mail, postage prepaid, if mailed; when
answered back, if telexed; when receipt acknowledged, if telecopied; and on the
next Business Day, if timely delivered to an air courier guaranteeing overnight
delivery.
(e) Successors and Assigns. This Agreement shall inure to the benefit
of and be binding upon the successors and assigns of each of the parties hereto,
including, without the need for an express assignment or any consent by the
Company thereto, subsequent Holders of Transfer Restricted Securities. The
Company hereby agrees to extend the benefits of this Agreement to any Holder of
Transfer Restricted Securities and any such Holder may specifically
16
enforce the provisions of this Agreement as if an original party hereto. The
Company may not assign its rights or obligations hereunder without the prior
written consent of each Holder of Transfer Restricted Securities.
(f) Counterparts. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts (which shall be
deemed to include the Note Consent and Letter of Transmittal delivered on behalf
of each Initial Holder), each of which when so executed shall be deemed to be an
original and all of which taken together shall constitute one and the same
agreement.
(g) Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof. All
references made in this Agreement to "Section" and "paragraph" refer to such
Section or paragraph of this Agreement, unless expressly stated otherwise.
(h) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK APPLICABLE TO
AGREEMENTS MADE AND TO BE PERFORMED IN SAID STATE.
(i) Severability. In the event that any one of more of the provisions
contained herein, or the application thereof in any circumstances, is held
invalid, illegal or unenforceable in any respect for any reason, the validity,
legality and enforceability of any such provision in every other respect and of
the remaining provisions hereof shall not be in any way impaired or affected
thereby, it being intended that all of the rights and privileges of the parties
shall be enforceable to the fullest extent permitted by law.
(j) Attorneys' Fees. In any action or proceeding brought to enforce any
provision of this Agreement, or where any provision hereof is validly asserted
as a defense, the prevailing party, as determined by the court, shall be
entitled to recover its reasonable attorneys' fees in addition to any other
available remedy.
(k) Approval of Holders. Whenever the consent or approval of holders of
a specified percentage of Transfer Restricted Securities is required hereunder,
Transfer Restricted Securities held by the Company or its Affiliates (as such
term is defined in Rule 405 under the Securities Act) shall not be counted in
determining whether such consent or approval was given by the holders of such
required percentage. For purposes of calculating the consent or approval of
holders of a majority of the then outstanding aggregate principal amount of
Transfer Restricted Securities, Transfer Restricted Securities which have been
converted into shares of Common Stock shall be deemed to bear the principal
amount at which such securities were converted.
(l) Entire Agreement. This Agreement is intended by the parties as a
final expression of their agreement relating to the registration under the
Securities Act of the Transfer Restricted Securities and is intended to be a
complete and exclusive statement of the agreement and understanding of the
parties hereto in respect of the subject matter contained herein and the
registration rights granted by the Company with respect to the Restructured
Notes exchanged
17
pursuant to the Restructuring Proposal Statement and the Common Stock issuable
upon conversion of the Restructured Notes. There are no restrictions, promises,
warranties or undertakings, other than those set forth or referred to herein,
with respect to the registration rights granted by the Company with respect to
the Restructured Notes or the Common Stock issuable upon conversion of the
Restructured Notes. This Agreement supersedes all prior agreements and
understandings among the parties with respect to such registration rights.
(m) Further Assurances. Each of the parties hereto shall use all
reasonable efforts to take, or cause to be taken, all appropriate action, do or
cause to be done all things reasonably necessary, proper or advisable under
applicable law, and execute and deliver such documents and other papers, as may
be required to carry out the provisions of this Agreement and the other
documents contemplated hereby and consummate and make effective the transactions
contemplated hereby.
REMAINDER OF PAGE INTENTIONALLY LEFT BLANK
18
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
P-COM, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Chairman and Chief Executive Officer
Address: ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇.
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
[INITIAL HOLDERS]
BBT Fund, L.P.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇
-----------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇
Title: Vice-President of BBT-FW, Inc., general partner of BBT Genpar L.P.,
general partner of BBT Fund, L.P.
Address: Corporate Centre, West Bay Road
P.O. Box 31106 SMB
Grand Cayman, BWI
[INITIAL HOLDERS]
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title:
Address: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
[INITIAL HOLDERS]
▇▇▇▇▇▇▇ Family Trust
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
--------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Trustee, The ▇▇▇▇▇▇▇ Family Trust UTA DTD 12-18-90
Address: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
[INITIAL HOLDERS]
REMEC, Inc.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
---------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President - Corporate Finance
Address: ▇▇▇▇ ▇▇▇ ▇▇ ▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
[INITIAL HOLDERS]
Woodmont Investments Ltd.
By: /s/ ▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Portfolio Manager
Address: ▇▇▇ ▇▇▇▇ ▇▇/▇▇/ ▇▇▇▇▇▇, ▇▇/▇▇/ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
SCHEDULE I
to
Registration Rights Agreement dated as of November 1, 2002
Initial Holders
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Name of Initial Holder Notice Address (set forth as provided in Section 11(d))
------------------------------------------------------------------------------------------------------
1. BBT Fund, L.P. ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------
2. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------
3. ▇▇▇▇▇▇▇ Family Trust c/o ▇▇▇▇▇ ▇▇▇▇▇▇▇, Trustee
(UTA DTD 12-18-90) ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------
4. REMEC, Inc. ▇▇▇▇ ▇▇▇ ▇▇ ▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
------------------------------------------------------------------------------------------------------
5. Woodmont Investments Ltd. ▇/▇ ▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇/▇▇/ ▇▇▇▇▇▇, ▇▇/▇▇/ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
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