EXHIBIT 10.39
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REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (this "Agreement"), is made as of
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December 21, 1998, by and among P-Com, Inc. a Delaware corporation (the
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"Company"), with headquarters located at ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ and the undersigned (the "Initial Purchasers").
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RECITALS
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A. In connection with the Securities Purchase Agreement dated of even date
herewith by and among the Company and the Initial Purchasers (the "Securities
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Purchase Agreement"), the Company has agreed, upon the terms and subject to the
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conditions contained therein, to issue and sell to the Initial Purchasers (i)
shares of Series B Convertible Participating Preferred Stock of the Company (the
"Preferred Stock") that is convertible into shares (the "Conversion Shares") of
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the Company's common stock, par value $0.0001 per share (the "Common Stock")
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upon the terms and subject to the limitations and conditions set forth in the
Certificate of Designations, Preferences and Rights with respect to such
Preferred Stock (the "Certificate of Designation"), in the form attached as
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Exhibit A to the Securities Purchase Agreement, and (ii) a Warrant (a "Warrant"
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and, when take together with all of the warrants issuable under the Securities
Purchase Agreement, the "Warrants") entitling the holder thereof to purchase the
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number of shares of Common Stock set forth in the Warrant (the "Warrant
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Shares").
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B. To induce the Initial Purchasers to execute and deliver the Securities
Purchase Agreement, the Company has agreed to provide certain registration
rights under the Securities Act of 1933, as amended, and the rules and
regulations thereunder, or any similar successor statute (collectively, the
"Securities Act"), and applicable state securities laws.
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AGREEMENTS
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NOW THEREFORE, in consideration of the premises and the mutual covenants
contained herein and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Company, and the Initial
Purchasers hereby agree as follows:
ARTICLE I
DEFINITIONS
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1.1 Definitions. As used in this Agreement, the following terms shall
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have the following meanings:
(a) "Purchasers" means the Initial Purchasers and any transferees
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or assignees who agree to become bound by the provisions of this Agreement in
accordance with Article IX hereof or who otherwise take rights under this
Agreement in accordance with the terms hereof.
(b) "register," "registered," and "registration" refer to a
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registration effected by preparing and filing a Registration Statement or
Statements in compliance with the Securities Act and pursuant to Rule 415 under
the Securities Act or any successor rule providing for offering securities on a
continuous basis ("Rule 415"), and the declaration or ordering of effectiveness
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of such Registration Statement by the United States Securities and Exchange
Commission (the "SEC").
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(c) "Registrable Securities" means the Conversion Shares issued
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or issuable with respect to the Preferred Stock, Warrant Shares issued or
issuable with respect to the Warrants (in each case without regard to any
limitations on conversion or exercise), any Common Stock issued upon conversion
of Preferred Stock issued pursuant to Section 2.3 hereof, and any shares of
capital stock issued or issuable, from time to time (with any adjustments) on or
in exchange for or otherwise with respect to the Common Stock or any other
Registrable Securities (including, without limitation, in the event of a Major
Transaction or a Common Stock Major Transaction (in each case as defined in
the Certificate of Designation and the Warrant).
(d) "Registration Statement" means any registration statement of
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the Company under the Securities Act subject to or pursuant to Article II or
another provision of this Agreement, as applicable.
1.2 Capitalized Terms. Capitalized terms used herein and not otherwise
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defined herein shall have the respective meanings set forth in the Securities
Purchase Agreement.
ARTICLE II
REGISTRATION
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2.1 Initial Registration. The Company shall prepare, and, on or prior to
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twenty (20) business days after the date of the Closing (the "Filing Date"),
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file with the SEC a Registration Statement on Form S-3 covering the resale of
all of the Registrable Securities. The Registration Statement shall include at
least 11 million shares of Common Stock. The Registrable Securities included in
the Registration Statement shall be allocated among the Purchasers as set forth
in Section 11.11 hereof. The Registration Statement (and each amendment or
material supplement thereto, and each request for acceleration of effectiveness
thereof) shall be provided to (and subject to the approval of (which approval
shall not be unreasonably withheld or denied)) the Initial Purchasers and their
counsel prior to its filing. After receiving the Registration Statement, each
Initial Purchaser shall provide the Company with either its approval of the
Registration Statement or its comments or corrections to the Registration
Statement within five (5) business days of receipt of the draft Registration
Statement. Any Initial Purchaser who does not respond with approval or comments
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within five business days shall be deemed to approve the Registration Statement.
Without limiting the Company's obligations under this Section, if Form S-3 is
not available to the Company in connection with re-sales, the Company shall file
a Registration Statement on such form as is then available to effect a
registration, subject to the consent of each Initial Purchaser (as determined
pursuant to Section 11.10 hereof) as to the form used for such filing.
2.2 Underwritten Offering. If any offering pursuant to a Registration
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Statement pursuant to Section 2.1 hereof involves an underwritten offering, the
Purchasers who hold a majority in interest of the Registrable Securities subject
to such underwritten offering, with the consent of each Initial Purchaser,
shall have the right to select a total of one legal counsel to represent the
Purchasers and an investment banker or bankers and manager or managers to
administer the offering, which counsel and investment banker or bankers or
manager or managers shall be reasonably satisfactory to the Company.
2.3 Payments by the Company. The Company shall use its best efforts to
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cause the registration statement to become effective as soon as practicable, but
in no event later than the ninetieth (90th) day following the date of the
Closing; provided, however, that if, notwithstanding such best efforts, the
registration statement is not declared effective on or prior to the 90th day
following the date of the Closing as a result of the SEC review process, the
Company shall, so long as it continues to use such best efforts, have an
additional thirty (30) days to cause the registration statement to become
effective prior to the imposition of any penalty or amount described in this
Section 2.3 (the "Registration Deadline"). The Company shall respond to each
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item of correspondence from the SEC or the staff of the SEC relating to such
registration statement as soon as practicable. If to the actual knowledge of a
senior officer of the Company or the Company's outside counsel the SEC and the
staff of the SEC have no comments (or no further comments) concerning such
registration statement, the Company shall as soon as practicable, but in any
case within three (3) business days request acceleration of effectiveness of the
registration statement from the SEC. If (i) the registration statement(s)
covering the Registrable Securities required to be filed by the Company pursuant
to Section 2.1 hereof is not declared effective by the SEC on or before the
Registration Deadline (a "Registration Failure"), or (ii) except pursuant to a
Permitted Blackout (as defined below) herein, after the registration statement
has been declared effective by the SEC, sales of all the Registrable Securities
(including any Registrable Securities required to be registered pursuant to
Section 3.2 hereof) cannot be made pursuant to the registration statement (by
reason of a stop order or the Company's failure to update the registration
statement or any other reason outside the control of the Purchasers) (a
"Registration Suspension"), then the Company will make payments to the
Purchasers in such amounts and at such times as shall be determined pursuant to
this Section 2.3 as partial relief for the damages to the Purchasers by reason
of any such delay in or reduction of their ability to sell the Registrable
Securities (which remedy shall not be exclusive of any other remedies available
at law or in equity). In the event of a Registration Failure, the Company shall
pay to each Purchaser an amount equal to (x) (A) the applicable Registration
Failure Multiplier (as defined below) times (B) the aggregate purchase price of
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the Preferred Stock then held by such Purchaser which are not at that time
immediately saleable under an effective registration statement or pursuant to
Rule 144 promulgated under the Securities Act or any other similar rule or
regulation
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of the SEC that may at any time permit the Purchasers to sell securities of the
Company to the public without registration ("Rule 144") (including, for this
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purpose shares of Preferred Stock that have been converted into Conversion
Shares which have not been sold pursuant to the Registration Statement or Rule
144) times (y) the number of months (prorated per day for partial months)
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following the Registration Deadline but prior to the date the Registration
Statement filed pursuant to Section 2.1 is declared effective by the SEC (the
"Effective Date"). The Registration Failure Multiplier shall be equal to: (i)
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for the first thirty (30) days after the Registration Deadline, 0.01; (ii) for
the second thirty (30) days after the Registration Deadline, 0.015; (iii) for
all days thereafter, 0.02. In the event of a Registration Suspension, the
Company shall pay to each Purchaser an amount equal to (x)(A) the applicable
Registration Failure Multiplier times (B) the aggregate purchase price of the
Preferred Stock then held by such Purchaser which are not at that time
immediately saleable under an effective registration statement or pursuant to
Rule 144 (including, for this purpose, shares of Preferred Stock that have then
been converted into Conversion Shares and which have not been sold pursuant to
the Registration Statement or Rule 144) times (y) the number of months (prorated
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for partial months) following the Effective Date but prior to the termination of
the Registration Period (as herein defined) that sales cannot be made pursuant
to the Registration Statement after the Effective Date. Any such amounts shall
be paid in cash or, at the Company's option, in additional shares of Preferred
Stock. Notwithstanding the foregoing, a Registration Suspension effected by the
Company pursuant to a Permitted Blackout (as defined below) shall not give rise
to an obligation to make such payments. For purposes of this Agreement,
"Permitted Blackout" shall mean the suspension of the Registration Statement
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after the Effective Date for up to six (6) business days upon the good faith
determination by the Company's Board of Directors that (A) a material financing,
acquisition or other extraordinary corporate transaction is in the best interest
of the Company and the holders of its outstanding Common Stock, and that
disclosure thereof to the public would have a material adverse effect on the
ability of the Company to consummate such material financing, acquisition or
other extraordinary corporate transaction, all after receiving advice to such
effect from a nationally recognized investment banking firm which has been
engaged by the Company in connection with such financing, acquisition or other
extraordinary corporate transaction, or (B) facts with respect to a material
lawsuit or governmental investigation exist which, if disclosed, would have a
material adverse effect on the Company, provided, however, that no more than
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three (3) such Permitted Blackouts may be imposed during any period of twelve
(12) consecutive months. Payments pursuant hereto shall be made within five (5)
business days after the end of each period that gives rise to such obligation,
provided that, if any such period extends for more than thirty (30) days,
payments shall be made for each such thirty (30) day period within five (5)
business days after the end of such thirty (30) day period. The payments
described herein, as applied to the new Registration Statement or amendment, in
each case, as required by Section 3.2, shall not commence until after the
expiration of ten (10) days after the Registration Trigger Date. Payments under
this Section 2.3 shall not exceed the previously unpaid portion of the Total
Amount (as defined in the Certificate of Designation) and no Purchaser shall
receive payments in excess of its theretofore unpaid allocated portion of the
Total Amount (as determined pursuant to the Certificate of Designation). In
addition, the damages payable in Preferred Stock pursuant to this Section 2.3
shall, without implication that the contrary would otherwise be true, be subject
to the Cap Amount (as defined in the Certificate of Designation) restrictions of
Section IV.G(i) of the Certificate of Designation.
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2.4 [Intentionally Deleted].
2.5 Eligibility for Form S-3. The Company represents and warrants that it
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currently meets the requirements for the use of Form S-3 for registration of the
re-sale by the Initial Purchasers and any other Purchaser of the Registrable
Securities and that the Company shall use its best efforts to continue to meet
such requirements, and that such re-sales may currently be effected pursuant to
Form S-3; the Company shall file all reports required to be filed by the Company
with the SEC in a timely manner so as to maintain such eligibility for the use
of Form S-3 and shall use its best efforts in all other respects to maintain
such eligibility.
ARTICLE III
OBLIGATIONS OF THE COMPANY
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In connection with the registration of the Registrable Securities, the
Company shall have the following obligations:
3.1 The Company shall prepare promptly and file with the SEC the
Registration Statement required by Section 2.1, and use its best efforts to
cause such Registration Statement relating to Registrable Securities to become
effective as soon as practicable after such filing, and keep the Registration
Statement continuously effective pursuant to Rule 415 and available for use at
all times, except as set forth herein, until such date as is the earlier of (i)
the date on which all of the Registrable Securities have been sold (and no
further Registrable Securities may be issued in the future) and (ii) the date on
which all of the Registrable Securities (in the reasonable opinion of counsel to
the Initial Purchasers) may be immediately sold to the public without
registration and without restriction as to the number of Registrable Securities
to be sold, whether pursuant to Rule 144 or otherwise, provided that if after
such date this clause (ii), as a result of a Common Stock Major Transaction, any
Registrable Securities (including, without limitation, any Registrable
Securities received as a result of such transaction) may not be so sold, then
the Registration Statement must be kept continuously effective from the date of
such Common Stock Major Transaction until the condition in either clause (i) or
clause (ii) is again satisfied (the "Registration Period").
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3.2 The Company shall prepare and file with the SEC such amendments
(including post-effective amendments) and supplements to a Registration
Statement and the prospectus used in connection with the Registration Statement
as may be necessary to keep the Registration Statement effective and available
for use at all times during the Registration Period, and, during such period,
comply with the provisions of the Securities Act with respect to the disposition
of all Registrable Securities of the Company covered by the Registration
Statement until the termination of the Registration Period or, if earlier, such
time as all of such Registrable Securities have been disposed of in accordance
with the intended methods of disposition by the seller or sellers thereof as set
forth in the Registration Statement. In the event the number of shares
available under a Registration Statement filed pursuant to this Agreement is,
for any five (5) consecutive trading days (the last of such five (5) trading
days being the "Registration Trigger Date"), insufficient to cover one hundred
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fifty percent (150%) of the Registrable Securities issued or issuable upon
conversion of the Preferred Stock and exercise of Warrants (in each case without
giving effect to any limitations on conversion or exercise thereof) then held by
any Purchaser, the Company shall, if permissible, amend the Registration
Statement, or file a new Registration Statement (on the shortest form available
therefor), or both, so as to cover two hundred percent (200%) of the Registrable
Securities so issued or issuable
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to such Purchaser (in each case without giving effect to any limitation on
conversion or exercise thereof), in each case, as soon as practicable, but in
any event within five (5) days in the case of an amendment and ten (10) business
days in the case of a new Registration Statement after the Registration Trigger
Date (based on the market price of the Common Stock and other relevant factors
on which the Company reasonably elects to rely). The Company shall cause such
amendment and/or new Registration Statement to become effective as soon as
practicable following the filing thereof.
3.3 The Company shall furnish to each Purchaser upon its written request
whose Registrable Securities are included in the Registration Statement and its
legal counsel promptly after the same is prepared and publicly distributed,
filed with the SEC, or received by the Company, one copy of the Registration
Statement and any amendment thereto, each preliminary prospectus and prospectus
and each amendment or supplement thereto, and, in the case of the Registration
Statement referred to in Section 2.1, each letter written by or on behalf of the
Company to the SEC or the staff of the SEC, and each item of correspondence from
the SEC or the staff of the SEC, in each case relating to such Registration
Statement (other than any portion, if any, thereof which contains information
for which the Company has sought confidential treatment), and such number of
copies of a prospectus, including a preliminary prospectus, and all amendments
and supplements thereto and such other documents as such Purchaser may
reasonably request in order to facilitate the disposition of the Registrable
Securities owned (or to be owned) by such Purchaser.
3.4 The Company shall (a) register and qualify the Registrable Securities
covered by the Registration Statement under securities laws of such
jurisdictions in the United States as each Purchaser who holds (or has the right
to hold) Registrable Securities being offered reasonably requests, (b) prepare
and file in those jurisdictions such amendments (including post-effective
amendments) and supplements to such registrations and qualifications as may be
necessary to maintain the effectiveness thereof and availability for use during
the Registration Period, (c) take such other actions as may be reasonably
necessary to maintain such registrations and qualifications in effect at all
times during the Registration Period, and (d) take all other actions reasonably
necessary or advisable to qualify the Registrable Securities for sale in such
jurisdictions; provided, however, that the Company shall not be required in
connection therewith or as a condition thereto to (i) qualify to do business in
any jurisdiction where it would not otherwise be required to qualify but for
this Section 3.4, (ii) subject itself to general taxation in any such
jurisdiction, (iii) file a general consent to service of process in any such
jurisdiction, (iv) provide any undertakings that cause the Company material
expense or burden, or (v) make any change in its charter or by-laws, which in
each case the board of directors of the Company determines to be contrary to the
best interests of the Company and its stockholders.
3.5 In the event the Purchasers who hold a majority in interest of the
Registrable Securities being offered in an offering pursuant to a Registration
Statement or any amendment or supplement thereto under Section 2.1 or 3.2 hereof
select underwriters for the offering, the Company shall enter into and perform
its obligations under an underwriting agreement, in usual and customary
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form, including, without limitation, customary indemnification and contribution
obligations, with the underwriters of such offering.
3.6 As soon as practicable after becoming aware of such event, the Company
shall publicly announce or notify by facsimile each Purchaser (at the facsimile
number for such Purchaser set forth on the signature page hereto) of the
happening of any event, of which the Company has actual knowledge, as a result
of which the prospectus included in the Registration Statement, as then in
effect, includes an untrue statement of a material fact or omission to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading, and use its best efforts as soon as possible to (but in
any event it shall within five (5) business days) prepare a supplement or
amendment to the Registration Statement (and make all required filings with the
SEC) to correct such untrue statement or omission if not otherwise satisfied
through the filing of a report to the SEC or otherwise pursuant to applicable
securities laws (but such a supplement or amendment or other filing shall not be
required if, notwithstanding the Company's best efforts to so prepare and file
such supplement, amendment or other filing, such a supplement, amendment or
other filing is no longer required by applicable law to correct such untrue
statement or omission because such untrue statement or omission no longer
exists) and the Company shall simultaneously (and thereafter as requested)
deliver such number of copies of such supplement or amendment to each Purchaser
(or other applicable document) as such Purchaser may request in writing. Unless
such an event is publicly announced, the Company shall not, without the consent
of a Purchaser, give such Purchaser any material non-public information, but
shall inform the Purchasers that the such prospectus includes an untrue
statement of a material fact or omission to state a material fact required to be
stated therein or necessary to make the statements therein not misleading.
3.7 The Company shall use its best efforts to prevent the issuance of any
stop order or other suspension of effectiveness of a Registration Statement,
and, if such an order is issued, to obtain the withdrawal of such order at the
earliest practicable time, and the Company shall immediately notify by facsimile
each Purchaser (at the facsimile number for such Purchaser set forth on the
signature page hereto) who holds Registrable Securities (or, in the event of an
underwritten offering, the managing underwriters) of the issuance of such order
and the resolution thereof.
3.8 The Company shall permit counsel designated by the Initial Purchasers
in writing to review the Registration Statement and all amendments and
supplements thereto a reasonable period of time prior to their filing with the
SEC, and not file any document in a form to which any such counsel reasonably
objects in writing. Any such review shall be conducted as soon as practicable.
3.9 The Company shall make generally available to its security holders as
soon as practical, but not later than ninety (90) days after the close of the
period covered thereby, an earnings statement (in form complying with the
provisions of Rule 158 under the Securities Act) covering a twelve-month period
beginning not later than the first day of the Company's fiscal quarter next
following the effective date of the Registration Statement.
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3.10 If reasonably requested by a Purchaser in writing (taking into
account any applicable legal precedent and any SEC staff positions), the Company
shall use its reasonable efforts to furnish, on the date of effectiveness of the
Registration Statement and thereafter from time to time on such dates as a
Purchaser may reasonably request (a) an opinion, dated as of such applicable
date, from counsel representing the Company addressed to the Purchasers and in
form, scope and substances as is customarily given in an underwritten public
offering and reasonably satisfactory to such counsel and (b) a letter, dated as
of such applicable date, from the Company's independent certified public
accountants addressed to the Purchasers and in form, scope and substance as
customarily given to underwriters in an underwritten public offering; provided,
however, that a Purchaser shall only be entitled to the foregoing to the extent
it is reasonably requested by such Purchaser and consented to by the Company
after consultation with its counsel (which consent will not be unreasonably
withheld based upon all relevant facts and circumstances and taking into account
the advice of such counsel) and in any event no more than one time in any three-
month period (unless a shorter period would otherwise be reasonable under the
applicable circumstances).
3.11 The Company shall provide each Purchaser and its representatives the
opportunity to conduct a reasonable inquiry of the Company's financial and other
records during normal business hours and make available its officers, directors
and employees for questions regarding information which such Purchaser may
reasonably request in connection with the Registration Statement; provided,
however, each inspector shall hold in confidence and shall not make any
disclosure (except to a Purchaser) of any record or other information which the
Company determines in good faith to be confidential, and of which determination
the inspectors are so notified in writing, unless (a) the disclosure of such
records is necessary to avoid or correct a misstatement or omission in any
Registration Statement, (b) the release of such records is ordered pursuant to a
subpoena or other order from a court or government body of competent
jurisdiction, or is otherwise required by applicable law or legal process or (c)
the information in such records has been made generally available to the public
other than by disclosure in violation of this or any other agreement (to the
knowledge of the relevant inspector); provided further, that the Company is not
required to waive the attorney-client privilege and the Company shall not
provide the Purchaser with material non-public information in connection with
such inquiry except to a Purchaser who specifically requests such information in
writing (it being understood and agreed that, notwithstanding the foregoing, the
Company is required to disclose all material information pursuant to the
Registration Statements required to be filed under this Agreement).
3.12 The Company shall hold in confidence and not make any disclosure of
non-public information concerning a Purchaser provided to the Company by a
Purchaser unless (a) disclosure of such information is necessary to comply with
federal or state securities laws, rules, statutes or regulations, (b) the
disclosure of such information is necessary to avoid or correct a misstatement
or omission in any Registration Statement or other public filing by the Company,
(c) the release of such information is ordered pursuant to a subpoena or other
order from a court or governmental body of competent jurisdiction or is
otherwise required by applicable law or legal process, (d) such information has
been made generally available to the public other than by disclosure in
violation, to the knowledge of the Company, of this or any other agreement, or
(e) such Purchaser consents to the
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form and content of any such disclosure, which consent shall not be unreasonably
withheld. The Company agrees that it shall, upon learning that disclosure of
such information concerning a Purchaser is sought in or by a court or
governmental body of competent jurisdiction in or through other means, give
prompt notice to such Purchaser prior to making such disclosure, and allow the
Purchaser, at its expense, to undertake appropriate action to prevent disclosure
of, or to obtain a protective order for, such information.
3.13 The Company shall use its best efforts to cause the listing and the
continuation of listing of all the Registrable Securities covered by the
Registration Statement on The Nasdaq National Market System, The Nasdaq SmallCap
Market, the New York Stock Exchange or the American Stock Exchange, and cause
the Registrable Securities to be quoted or listed on each additional national
securities exchange or quotation system upon which the Common Stock is then
listed or quoted.
3.14 The Company shall provide a transfer agent and registrar, which may
be a single entity, for the Registrable Securities not later than the effective
date of the Registration Statement.
3.15 The Company shall cooperate with the Purchasers who hold Registrable
Securities being offered and the managing underwriter or underwriters, if any,
to facilitate the timely preparation and delivery of certificates (not bearing
any restrictive legends) representing Registrable Securities to be offered
pursuant to the Registration Statement and enable such certificates to be in
such denominations or amounts, as the case may be, as the managing underwriter
or underwriters, if any, or a Purchaser may reasonably request and registered in
such names as the managing underwriter or underwriters, if any, or a Purchaser
may request, and, within two (2) business days after a Registration Statement
which includes Registrable Securities is ordered effective by the SEC, the
Company shall cause legal counsel selected by the Company to deliver, to the
transfer agent for the Registrable Securities (with copies to the Purchasers
whose Registrable Securities are included in such Registration Statement) an
opinion of such counsel in the form attached hereto as Exhibit 1.
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3.16 At the written request of any Purchaser, the Company shall promptly
prepare and file with the SEC such amendments (including post-effective
amendments) and supplements to a Registration Statement and the prospectus used
in connection with the Registration Statement as may be necessary in order to
change the plan of distribution set forth in such Registration Statement.
3.17 The Company shall comply with all applicable laws related to a
Registration Statement and offering and sale of securities covered by the
Registration Statement and all applicable rules and regulations of governmental
authorities in connection therewith (including, without limitation, the
Securities Act and the Securities Exchange Act of 1934, as amended, and the
rules and regulations promulgated by the Commission).
3.18 The Company shall take all such other actions as any Purchaser or the
underwriters, if any, reasonably request in order to expedite or facilitate the
disposition of such Registrable Securities.
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3.19 From and after the date of this Agreement, the Company shall not, and
shall not agree to, allow the holders of any securities of the Company (other
than Purchasers with respect to Registrable Securities) to include any of their
securities in any Registration Statement or any amendment or supplement thereto
under Section 2.1 or 3.2 hereof without the consent of each initial Holder of
the Registrable Securities.
3.20 The Registration Statement shall state that it covers such
indeterminate number of additional shares as may be issuable upon conversion of
the Preferred Stock or exercise of the Warrants to prevent dilution resulting
from stock splits, stock dividends, and other similar transactions.
ARTICLE IV
OBLIGATIONS OF THE PURCHASERS
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In connection with the registration of the Registrable Securities, each
Purchaser shall have the following obligations:
4.1 Purchaser shall furnish to the Company such information regarding
itself, the Registrable Securities held by it and the intended method of
disposition of the Registrable Securities held by it as shall be required to
effect the registration of such Registrable Securities. At least five (5)
business days prior to the first anticipated filing date of the Registration
Statement, the Company shall notify each Purchaser of the information the
Company so requires from each such Purchaser.
4.2 Purchaser, by such Purchaser's acceptance of the Registrable
Securities, agrees to cooperate with the Company as reasonably requested by the
Company in connection with the preparation and filing of the Registration
Statements hereunder, unless such Purchaser has notified the Company in writing
of such Purchaser's election to exclude all of such Purchaser's Registrable
Securities from the Registration Statement.
4.3 Each Purchaser whose Registrable Securities are included in a
Registration Statement understands that the Securities Act may require delivery
of a prospectus relating thereto in connection with any sale thereof pursuant to
such Registration Statement, and each such Purchaser shall comply with any
applicable prospectus delivery requirements of the Securities Act in connection
with any such sale.
4.4 [Intentionally Deleted].
4.5 Each Purchaser agrees that, upon receipt of written notice from the
Company of the happening of any event of the kind described in Section 3.6, such
Purchaser will immediately discontinue disposition of Registrable Securities
pursuant to the Registration Statement covering such Registrable Securities
until such Purchaser's receipt of the copies of the supplemented or amended
prospectus contemplated by Section 3.6 or advice that a supplement or amendment
is not required and, if so directed by the Company, such Purchaser shall deliver
to the Company (at the expense of
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the Company) or destroy (and deliver to the Company a certificate of
destruction) all copies in such Purchaser's possession (other than a limited
number of permanent file copies), of the prospectus covering such Registrable
Securities current at the time of receipt of such notice. Purchaser's
obligations under this paragraph shall in no way limit the Company's obligations
under this Agreement or Purchaser's rights or remedies against the Company with
respect to any breach or threatened breach by the Company of any such
obligations.
4.6 Without limiting a Purchaser's rights under Section 2.1 or 3.2 hereof,
no Purchaser may participate in any underwritten distribution hereunder unless
such Purchaser (a) agrees to sell such Purchaser's Registrable Securities on the
basis provided in any underwriting agreements in usual and customary form
entered into by the Company pursuant to Section 3.5 hereof, (b) completes and
executes all questionnaires, powers of attorney, indemnities, underwriting
agreements and other documents reasonably required under the terms of such
underwriting arrangements, and (c) agrees to pay its pro rata share of all
underwriting discounts and commissions and any expenses in excess of those
payable by the Company pursuant to Article V.
4.7 Each Purchaser agrees to use reasonable efforts to cooperate with the
Company (at the Company's expense) in responding to comments of the staff of the
SEC, provided nothing in this Section 4.7 shall affect the Registration Deadline
or any obligations of the Company under this Agreement or otherwise create any
liability on the part of any Purchaser or require any change to the terms and
conditions of this Agreement, the Certificate of Designation, the Preferred
Stock, the Warrants or the Securities Purchase Agreement.
ARTICLE V
EXPENSES OF REGISTRATION
------------------------
All reasonable expenses, other than underwriting discounts and commissions,
incurred in connection with registrations, filings or qualifications pursuant to
Articles II and III, including, without limitation, the reasonable fees and
disbursements of one counsel of all of the Purchasers (up to $5,000), all
registration, listing and qualification fees, printers and accounting fees, and
the fees and disbursements of counsel for the Company, shall be borne by the
Company.
ARTICLE VI
INDEMNIFICATION
---------------
In the event any Registrable Securities are included in a Registration
Statement under this Agreement:
6.1 To the extent permitted by law, the Company will indemnify, hold
harmless and defend (a) each Purchaser who holds such Registrable Securities,
(b) each underwriter of Registrable Securities and (c) the directors, officers,
partners, members, employees, agents and persons who control any Purchaser
within the meaning of Section 15 of the Securities Act or Section 20 of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), if any (each,
------------
an "Indemnified
-----------
11
Person"), against any losses, claims, damages, liabilities or expenses
------
(collectively, together with actions, proceedings or inquiries whether or not
in any court, before any administrative body or by any regulatory or
self-regulatory organization, whether commenced or threatened, in respect
thereof, "Claims") to which any of them may become subject insofar as such
------
Claims arise out of or are based upon: (i) any untrue statement or alleged
untrue statement of a material fact in a Registration Statement or the omission
or alleged omission to state therein a material fact required to be stated or
necessary to make the statements therein not misleading, (ii) any untrue
statement or alleged untrue statement of a material fact contained in any
preliminary prospectus if used prior to the effective date of such Registration
Statement, or contained in the final prospectus (as amended or supplemented, if
the Company files any amendment thereof or supplement thereto with the SEC) or
the omission or alleged omission to state therein any material fact necessary to
make the statements made therein, in light of the circumstances under which the
statements therein were made, not misleading, or (iii) any violation or alleged
violation by the Company of the Securities Act, the Exchange Act, any other law,
including, without limitation, any state securities law, or any rule or
regulation thereunder relating to the offer or sale of the Registrable
Securities (the matters in the foregoing clauses (i) through (iii) being,
collectively, "Violations"). The Company shall reimburse each such Indemnified
----------
Person, promptly as such expenses are incurred and are due and payable, for any
reasonable legal fees or other reasonable expenses incurred by them in
connection with investigating or defending any such Claim. Notwithstanding
anything to the contrary contained herein, the indemnification agreement
contained in this Section 6.1: (x) shall not apply to an Indemnified Person with
respect to a Claim arising out of or based upon a Violation which occurs in
reliance upon and in conformity with information furnished in writing to the
Company by such Indemnified Person expressly for use in the Registration
Statement or any such amendment thereof or supplement thereto; (y) shall not
apply to amounts paid in settlement of any Claim if such settlement is effected
without the prior written consent of the Company, which consent shall not be
unreasonably withheld; and (z) with respect to any preliminary prospectus, shall
not inure to the benefit of any Indemnified Person if the untrue statement or
omission of material fact contained in the preliminary prospectus was corrected
on a timely basis in the prospectus, as then amended or supplemented, if such
corrected prospectus was timely made available by the Company pursuant to
Section 3.3 hereof, and the Indemnified Person was promptly advised in writing
not to use the incorrect prospectus prior to the use giving rise to a Violation
and such Indemnified Person, notwithstanding such advice, used it. Such
indemnity shall remain in full force and effect regardless of any investigation
made by or on behalf of the Indemnified Person and shall survive the transfer of
the Registrable Securities by a Purchaser pursuant to Article IX.
6.2 To the extent permitted by law, each such Purchaser agrees to
indemnify, hold harmless and defend, to the same extent and in the same manner
set forth in Section 6.1, the Company, each of its directors, each of its
officers who signs the Registration Statement, its employees, agents and
persons, if any, who control the Company within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act, and any other stockholder
selling securities pursuant to the Registration Statement, together with its
directors, officers and members, and any person who controls such stockholder or
underwriter within the meaning of the Securities Act or the Exchange Act (such
an "Indemnified Party"), against any Claim to which any of them may become
-----------------
12
subject, under the Securities Act, the Exchange Act or otherwise, insofar as
such Claim arises out of or is based upon any Violation, in each case to the
extent (and only to the extent) that such Violation occurs in reliance upon and
in conformity with written information furnished to the Company by such
Purchaser expressly for use in connection with such Registration Statement; and
such Purchaser will reimburse any legal or other expenses (promptly as such
expenses are incurred and are due and payable) reasonably incurred by them in
connection with investigating or defending any such Claim; provided, however,
that the indemnity agreement contained in this Section 6.2 shall not apply to
amounts paid in settlement of any Claim if such settlement is effected without
the prior written consent of such Purchaser, which consent shall not be
unreasonably withheld; provided, further, however, that a Purchaser shall be
liable under this Agreement (including this Section 6.2 and Article VII) for
only that amount as does not exceed the net proceeds actually received by such
Purchaser as a result of the sale of Registrable Securities pursuant to such
Registration Statement. Such indemnity shall remain in full force and effect
regardless of any investigation made by or on behalf of such Indemnified Party
and shall survive the transfer of the Registrable Securities by a Purchaser
pursuant to Article IX. Notwithstanding anything to the contrary contained
herein, the indemnification agreement contained in this Section 6.2 with respect
to any preliminary prospectus shall not inure to the benefit of any Indemnified
Party if the untrue statement or omission of material fact contained in the
preliminary prospectus was corrected on a timely basis in the prospectus, as
then amended or supplemented, and the Indemnified Party failed to utilize such
corrected prospectus.
6.3 Promptly after receipt by an Indemnified Person or Indemnified Party
under this Article VI of notice of the commencement of any action (including any
governmental action), such Indemnified Person or Indemnified Party shall, if a
Claim in respect thereof is to be made against any indemnifying party under this
Article VI, deliver to the indemnifying party a written notice of the
commencement thereof, and the indemnifying party shall have the right (at its
expense) to participate in, and, to the extent the indemnifying party so
desires, jointly with any other indemnifying party similarly noticed, to assume
and continue control of the defense thereof with counsel mutually satisfactory
to the indemnifying party and the Indemnified Person or the Indemnified Party,
as the case may be; provided, however, that such indemnifying party shall
diligently pursue such defense and an indemnifying party shall not be entitled
to assume (or continue) such defense if the representation by such counsel of
the Indemnified Person or Indemnified Party and the indemnifying party would be
inappropriate due to actual or potential conflicts of interest between such
Indemnified Person or Indemnified Party and any other party represented by such
counsel in such proceeding or the actual or potential defendants in, or targets
of, any such action include both the Indemnified Person or the Indemnified Party
and the indemnifying party, and any such Indemnified Person or Indemnified Party
reasonably determines that there may be legal defenses available to such
Indemnified Person or Indemnified Party which are different from or in addition
to those available to such indemnifying party. Notwithstanding any assumption of
such defense and without limiting any indemnification obligation provided for in
Section 6.1 or 6.2, the Indemnified Party or Indemnified Person, as the case may
be, shall be entitled to be represented by counsel (at its own expense if the
indemnifying party is permitted to assume and continue control of the defense
and otherwise at the expense of the indemnifying party) and such counsel shall
be entitled to participate in such defense. The failure to deliver written
notice to the indemnifying party within a reasonable time of the commencement of
any such action shall not relieve such indemnifying party of any liability to
the Indemnified Person or
13
Indemnified Party under this Article VI, except to the extent that the
indemnifying party is actually prejudiced in its ability to defend such action.
The indemnification required by this Article VI shall be made by periodic
payments of the amount thereof during the course of the investigation or
defense, as such expense, loss, damage or liability is incurred and is due and
payable.
ARTICLE VII
CONTRIBUTION
------------
To the extent any indemnification by an indemnifying party is prohibited or
limited by law, the indemnifying party agrees to make the maximum contribution
with respect to any amounts for which it would otherwise be liable under Article
VI to the fullest extent permitted by law; provided, however, that (i) no person
guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of
the Securities Act) shall be entitled to contribution from any person who was
not guilty of such fraudulent misrepresentation, and (ii) contribution (together
with any indemnification or other obligations under this Agreement) by any
Purchaser of Registrable Securities shall be limited in amount to the net amount
of proceeds received by such Purchaser from the sale of its Registrable
Securities.
ARTICLE VIII
REPORTS UNDER THE EXCHANGE ACT
------------------------------
With a view to making available to each Purchaser the benefits of Rule 144,
the Company agrees that so long as a Purchaser holds Preferred Stock, Warrants
or any Registrable Securities, the Company shall use its best efforts to:
8.1(a) Not terminate its status as an issuer required to file reports
under the Exchange Act even if the Exchange Act or the rules and regulations
thereunder would permit such termination.
8.1(b) File with the SEC in a timely manner and make and keep available
all reports and other documents required of the Company under the Securities Act
and the Exchange Act so long as the filing and availability of such reports and
other documents is required for the applicable provisions of Rule 144; and
8.2 Furnish to each Purchaser promptly upon written request, (i) a
written statement by the Company that it has complied with the reporting
requirements of Rule 144, the Securities Act and the Exchange Act, (ii) a copy
of the most recent annual or quarterly report of the Company and such other
reports and documents so filed by the Company, and (iii) such other information
as may be reasonably requested to permit the Purchaser to sell such securities
pursuant to Rule 144 without registration.
14
ARTICLE IX
ASSIGNMENT OF REGISTRATION RIGHTS
---------------------------------
The rights of the Purchasers hereunder as to Registrable Securities
transferred by a Purchaser (or represented by Preferred Stock or Warrants
transferred by a Purchaser), including the right to have the Company register
Registrable Securities pursuant to this Agreement, shall be automatically
assigned by each Purchaser to any transferee of all or any portion of the
Preferred Stock or Warrants or the Registrable Securities, whether such transfer
occurs before or after the Registration Statement becomes effective, if: (a) the
Purchaser agrees in writing with the transferee or assignee to assign such
rights, and a copy of such agreement is furnished to the Company within a
reasonable time after such assignment, (b) the Company is, within a reasonable
time after such transfer or assignment, furnished with written notice of (i) the
name and address of such transferee or assignee, and (ii) the securities with
respect to which such registration rights are being transferred or assigned, (c)
following such transfer or assignment, the further disposition of such
securities by the transferee or assignee is restricted under the Securities Act
or applicable state securities laws, and (d) at or before the time the Company
receives the written notice contemplated by clause (ii) of this sentence, the
transferee or assignee agrees in writing for the benefit of the Company to be
bound by all of the provisions contained herein. The rights of a Purchaser
hereunder with respect to any Registrable Securities not transferred (and not
represented by Preferred Stock or Warrants transferred) shall not be assigned by
virtue of the transfer of other Registrable Securities or transferred Preferred
Stock or Warrants representing other Registrable Securities. Purchasers shall
not knowingly transfer or otherwise dispose of, in any private off-market
offering, any Convertible Securities to any Competitor (as defined in the
Securities Purchase Agreement) of the Company (or any of its subsidiaries).
ARTICLE X
AMENDMENT OF REGISTRATION RIGHTS
--------------------------------
Provisions of this Agreement may be amended and the observance thereof may
be waived (either generally or in a particular instance and either retroactively
or prospectively), only with written consent of the Company and Initial
Purchasers who hold a majority in interest of the Registrable Securities which
are then held by Initial Purchasers (but not an Initial Purchaser who no longer
owns any Preferred Stock or Registrable Securities and who is not affected by
such amendment or waiver) and Purchasers (other than Initial Purchasers) who
hold a majority interest of the Registrable Securities held by Purchasers other
than Initial Purchasers. Any amendment or waiver effected in accordance with
this Article X shall be binding upon each Purchaser and the Company.
Notwithstanding the foregoing, no amendment or waiver shall retroactively affect
any Purchaser without its consent or prospectively adversely affect any
Purchaser who no longer owns any Preferred Stock, Warrants or Registrable
Securities without its consent. No amendment or waiver may adversely affect one
or more Purchasers or group of Purchasers vis-a-vis any other Purchaser or group
of Purchasers. Neither Article VI nor Article VII hereof may be amended or
waived in a manner adverse to a Purchaser without its consent. Notwithstanding
anything to the contrary contained in this Article X, no amendment or waiver
shall be applicable to an Initial Purchaser who does not consent in writing
thereto.
15
ARTICLE XI
MISCELLANEOUS
-------------
11.1 A person or entity is deemed to be a holder (or a holder in interest)
of Registrable Securities whenever such person or entity owns of record such
Registrable Securities (or the Preferred Stock or Warrants which may be
converted into or exercised for Registrable Securities). If the Company receives
conflicting instructions, notices or elections from two or more persons or
entities with respect to the same Registrable Securities, the Company shall act
upon the basis of instructions, notice or election received from the registered
owner of such Registrable Securities (or Preferred Stock or Warrants, as the
case may be).
11.2 Any notices herein required or permitted to be given shall be in
writing and may be personally served or delivered by courier or by machine
generated confirmed telecopy, and shall be deemed delivered at the time and date
of receipt (which shall include telephone line facsimile transmission). The
addresses for such communications shall be:
If to the Company:
P-Com, Inc.
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇.
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Chief Financial Officer and
Chief Executive Officer
with a copy to:
▇▇▇▇▇▇▇, Phleger & ▇▇▇▇▇▇▇▇ LLP
▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
If to any Initial Purchaser, as shown on the signature page hereto and if to any
other Purchaser, at such address as such Purchaser, shall have provided in
writing to the Company, or at such other address as each such party furnishes by
notice given in accordance with this Section 11.2.
11.3 Failure of any party to exercise any right or remedy under this
Agreement or otherwise, or delay by a party in exercising such right or remedy,
shall not operate as a waiver thereof.
11.4 This Agreement shall be governed by and construed in accordance with
the laws of the State of Delaware applicable to contracts made and to be
performed in the State of Delaware. The Company irrevocably consents to the
jurisdiction of the federal courts located in the State of Delaware and the
state courts of the State of Delaware located in the County of New Castle in the
16
State of Delaware in any suit or proceeding based on or arising under this
Agreement and irrevocably agrees that all claims in respect of such suit or
proceeding may be determined in such courts. The Company irrevocably waives the
defense of an inconvenient forum to the maintenance of such suit or proceeding.
The parties hereto further agree that service of process upon the parties hereto
mailed by first class mail shall be deemed in every respect effective service of
process upon each such party in any such suit or proceeding. Nothing herein
shall affect either party's right to serve process in any other manner permitted
by law. The parties hereto agree that a final non-appealable judgment in any
such suit or proceeding shall be conclusive and may be enforced in other
jurisdictions by suit on such judgment or in any other lawful manner.
11.5 This Agreement, the Preferred Stock, Warrants and the Securities
Purchase Agreement (including all schedules and exhibits thereto and all
certificates and opinions and other documents required thereby) constitute the
entire agreement among the parties hereto with respect to the subject matter
hereof and thereof. There are no restrictions, promises, warranties or
undertakings, other than those set forth or referred to herein and therein.
This Agreement, the Preferred Stock, the Warrants and the Securities Purchase
Agreement supersede all prior agreements and understandings among the parties
hereto with respect to the subject matter hereof and thereof.
11.6 Subject to the requirements of Article IX hereof, this Agreement shall
inure to the benefit of and be binding upon the successors and assigns of each
of the parties hereto. Notwithstanding anything to the contrary contained
herein, including, without limitation, Article IX (and without compliance
therewith), the rights of a Purchaser hereunder shall be assignable to and
exercisable by a bona fide pledgee of the Registrable Securities in connection
with a Purchaser's margin or brokerage accounts.
11.7 The headings in this Agreement are for convenience of reference only
and shall not limit or otherwise affect the meaning hereof.
11.8 This Agreement may be executed in two or more counterparts, each of
which shall be deemed an original but all of which shall constitute one and the
same agreement. This Agreement, once executed by a party, may be delivered to
the other party hereto, by facsimile transmission of a copy of this Agreement
bearing the signature of the party so delivering this Agreement.
11.9 Each party shall do and perform, or cause to be done and performed,
all such further acts and things, and shall execute and deliver all such other
agreements, certificates, instruments and documents, as the other party may
reasonably request in order to carry out the intent and accomplish the purposes
of this Agreement and the consummation of the transactions contemplated hereby.
11.10 Unless otherwise provided herein, all consents and other
determinations to be made pursuant to this Agreement shall be made on the
basis of a majority in interest with respect to the Registrable Securities
(determined as if all Preferred Stock and Warrants then outstanding had been
converted into or exercised for
17
Registrable Securities (without giving effect to any limitation on exercise or
conversion)) held by all Purchasers or Initial Purchasers, as the case may be.
11.11 The number of Registrable Securities included on any Registration
Statement shall be allocated pro rata among the Purchasers based on the number
of Registrable Securities held by each Purchaser at the time of establishment of
such number. In the event a Purchaser shall sell or otherwise transfer any of
such holder's Registrable Securities, each transferee shall be allocated a pro
rata portion of the number of Registrable Securities included on a Registration
Statement for such transferor. Any shares of Common Stock included on a
Registration Statement and which remain allocated to any person or entity which
does not hold any Registrable Securities shall be allocated to the remaining
Purchasers, pro rata based on the number of shares of Registrable Securities
then held by such Purchasers. Without implication that the contrary would
otherwise be true, for purposes of this paragraph, all Preferred Stock and
Warrants then outstanding shall be assumed converted into and exercised for
Registrable Securities (without giving effect to any limitations on conversion
or exercise).
11.12 If any provision of this Agreement shall be invalid or unenforceable,
such invalidity or unenforceability shall not affect the validity or
enforceability of the remainder of this Agreement.
* * *
18
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed as of the date first above written.
P-COM, INC.
BY: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ with a copy to:
---------------------- --------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ --------------------
Title: Chairman and Chief Executive Officer
----------------------
Address:
-----------------------
-----------------------
-----------------------
Facsimile Number:
---------------
Initial Purchasers:
PURCHASER:
CASTLE CREEK TECHNOLOGY PARTNERS LLC
By: Castle Creek Partners LLC
Its: Managing Member
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Managing Member
Address: ▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile Number: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
-------------------------------------
-------------------------------------
-------------------------------------
-------------------------------------
PURCHASER:
▇▇▇▇▇▇▇▇ CAPITAL MANAGEMENT, INC.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇
Title: President
Address:
-------------------------------------
-------------------------------------
-------------------------------------
Facsimile Number: ( )
---- ------------------------
with a copy to:
-------------------------------------
-------------------------------------
-------------------------------------
-------------------------------------
PURCHASER:
CAPITAL VENTURES INTERNATIONAL
By: Heights Capital Management, Inc.
Its: Authorized Agent
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: General Counsel and Secretary
Address:
-------------------------------------
-------------------------------------
-------------------------------------
Facsimile Number: ( )
---- ------------------------
with a copy to:
-------------------------------------
-------------------------------------
-------------------------------------
-------------------------------------
EXHIBIT 1
TO REGISTRATION
RIGHTS AGREEMENT
[Date]
[Name and address
of transfer agent]
RE: P-COM, INC.
Ladies and Gentlemen:
We are counsel to P-Com, Inc., a Delaware corporation (the "Company"), and
-------
we understand the [Name of Purchaser] (the "Holder") has purchased from the
------
Company Series B Convertible Participating Preferred Stock of the Company (the
"Preferred Stock"), convertible into shares of the Company's common stock, par
---------------
value $.0001 per share (the "Common Stock"). The Preferred Stock was purchased
------------
by the Holder pursuant to a Securities Purchase Agreement, dated as of December
21, 1998, by and among the Company and the signatories thereto (the
"Agreement"). Pursuant to a Registration Rights Agreement, dated as of December
---------
21, 1998, by and among the Company and the signatories thereto (the
"Registration Rights Agreement"), the Company agreed with the Holder, among
-----------------------------
other things, to register the Registrable Securities (as that term is defined in
the Registration Rights Agreement) under the Securities Act of 1933, as amended
(the ("Securities Act"), upon the terms provided in the Registration Rights
--------------
Agreement. In connection with the Company's obligations under the Registration
Rights Agreement, on December __, 1998, the Company filed a Registration
Statement on Form S-3 (File No. 333-_______________) (the "Registration
------------
Statement") with the Securities and Exchange Commission (the "SEC") relating to
--------- ---
the Registrable Securities, which names the Holder as a selling stockholder
thereunder.
[Other customary introductory and scope of examination language to be
inserted, in each case as acceptable to Holders.]
Based on the foregoing, we are of the opinion that the Registrable
Securities have been registered under the Securities Act.
[Other appropriate customary language to be included, in each case as
acceptable to Holders.]
Very truly yours,
cc: [Name of Purchaser]
19
