Exhibit 4.3
REGISTRATION RIGHTS AGREEMENT
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REGISTRATION RIGHTS AGREEMENT (this "Agreement"), dated as of June 8, 2000,
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between Western Multiplex Corporation, a Delaware corporation (the "Company"),
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Ripplewood Holdings, L.L.C., a Delaware limited liability company ("Ripplewood")
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and WMC Holding Corp., a Delaware Corporation ("WMC Holding").
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W I T N E S S E T H :
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WHEREAS, Ripplewood is the general partner of Ripplewood Partners, L.P.
("Ripplewood Partners") and Ripplewood Employee Co-Investment Fund, L.P.
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("Ripplewood Co-Investment");
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WHEREAS, Ripplewood Partners owns 29,394,072 shares of WMC Holding and
Ripplewood Co-Investment owns 955,928 shares of WMC Holding;
WHEREAS, WMC Holding owns 39,796,351 shares of the Company;
WHEREAS, Ripplewood and its affiliates have staff specially skilled in
corporate finance, strategic corporate planning and other management skills and
services;
WHEREAS, the Company requires Ripplewood's and its affiliates' special
skills and management advisory services in connection with its general business
operations; and
WHEREAS, Ripplewood is willing to provide such skills and services to the
Company.
NOW, THEREFORE, in consideration of the covenants and agreements contained
in this Agreement, and for other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, the parties hereto hereby
agree as follows:
ARTICLE I
DEFINITIONS
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SECTION 1.01 Definitions. For purposes of this Agreement:
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"Action" shall mean any claim, action, suit, arbitration, inquiry,
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proceeding or investigation by or before any Governmental Entity.
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"Commission" shall mean the Securities and Exchange Commission or any other
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federal agency then administering the Securities Act or the Exchange Act and
other federal securities laws.
"Common Stock" shall mean shares of common stock, par value $.01 per share,
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of the Company, whatever class or series.
"Demand Party" shall mean Ripplewood or any of its affiliates or
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subsidiaries, including WMC Holding and any current or future general or limited
partner of Ripplewood, Ripplewood Partners or Ripplewood Co-Investment.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as amended,
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and the rules and regulations promulgated thereunder.
"Governmental Entity" shall mean any Federal, state or local government or
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any court, administrative agency or commission or other governmental authority
or agency, domestic or foreign.
"NASD" shall mean the National Association of Securities Dealers, Inc.
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"Person" shall mean an individual, corporation, limited liability company,
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partnership, joint venture, association, trust, unincorporated organization or
other enterprise or entity.
"Registrable Securities" shall mean any shares of Common Stock. As to any
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particular Registrable Securities, once issued, such Registrable Securities
shall cease to be Registrable Securities when (a) a registration statement with
respect to the sale by a Demand Party of such securities shall have become
effective under the Securities Act and such securities shall have been disposed
of in accordance with such registration statement, (b) such securities shall
have been distributed to the public pursuant to Rule 144 (or any successor
provision) under the Securities Act, or (c) such securities shall have ceased to
be outstanding. For purposes of this Agreement, any required calculation of the
amount of, or percentage of, Registrable Securities shall be based on the number
of shares of Common Stock which are Registrable Securities, including shares
issuable upon the conversion, exchange or exercise of any security convertible,
exchangeable or exercisable into Common Stock.
"Registration Expenses" shall mean any and all expenses incident to
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performance of or compliance with this Agreement, including (a) all Commission
and stock exchange or NASD registration and filing fees (including, if
applicable, the fees and expenses of any "qualified independent underwriter," as
such term is defined in Schedule E to the Bylaws of the NASD, and of its
counsel), (b) all fees and expenses of complying with securities or blue sky
laws (including fees and disbursements of counsel for the underwriters in
connection with blue sky qualifications of the Registrable Securities), (c) all
printing, messenger and delivery expenses, (d) all fees and expenses incurred in
connection with the listing of the Registrable
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Securities on any securities exchange pursuant to Section 3.01(h) and all rating
agency fees, (e) the fees and disbursements of counsel for the Company and of
its independent public accountants, including the expenses of any special audits
and/or "cold comfort" letters required by or incident to such performance and
compliance, (f) fees and expenses incurred by the Company or the holders
participating in such registration in connection with any "road show," including
travel and accommodations, (g) the reasonable fees and disbursements of counsel
selected pursuant to Article VI, (h) any fees and disbursements of underwriters
customarily paid by the issuers or sellers of securities, including liability
insurance if the Company so desires or if the underwriters so require, and the
reasonable fees and expenses of any special experts retained in connection with
the requested registration, but excluding underwriting discounts and commissions
and transfer taxes, if any, and (i) other reasonable out-of-pocket expenses of
any Demand Party.
"Securities Act" shall mean the Securities Act of 1933, as amended, and the
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rules and regulations promulgated thereunder.
SECTION 1.02 Other Defined Terms. The following terms shall have the
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meanings defined for such terms in the Sections set forth below:
Term Section
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"Agreement" Recitals
"Company" Recitals
"Indemnified Parties" 4.01
"Ripplewood" Recitals
"Ripplewood Co-Investment" Recitals
"Ripplewood Partners" Recitals
SECTION 1.03 Other Definitional Provisions. (a) The words "hereof",
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"herein" and "hereunder" and words of similar import when used in this Agreement
shall refer to this Agreement as a whole and not to any particular provision of
this Agreement, and Article, Section, Schedule and Exhibit references are to
this Agreement unless otherwise specified.
(b) The meanings given to terms defined herein shall be equally applicable
to both the singular and plural forms of such terms.
ARTICLE II
REGISTRATION ON REQUEST
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SECTION 2.01 Request by the Demand Party. At any time after the date
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hereof, upon the written request of the Demand Party requesting that the Company
effect the registration under the Securities Act of all or part of such Demand
Party's Registrable Securities and specifying the amount and intended method of
disposition thereof, the Company will, as
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expeditiously as possible, use its best efforts to effect the registration under
the Securities Act of the Registrable Securities which the Company has been so
requested to register by the Demand Party.
(a) all other Registrable Securities of the same class(es) or series as are
to be registered at the request of a Demand Party and which the Company has been
requested to register by written request given to the Company within 15 days
after the giving of such written notice by the Company (which request shall
specify the amount and intended method of disposition of such Registrable
Securities), all to the extent necessary to permit the disposition (in
accordance with the intended method thereof as aforesaid) of the Registrable
Securities so to be registered; provided, that the Company shall not be
obligated to file a registration statement relating to any registration request
under this Article II (x) (other than a registration statement on Form S-3 or
any successor or similar short-form registration statement) within a period of
six months after the effective date of any other registration statement relating
to any registration request under this Article II which was not effected on Form
S-3 (or any successor or similar short-form registration statement) or (y) if
with respect thereto the managing underwriter, the Commission, the Securities
Act, or the form on which the registration statement is to be filed, would
require the conduct of an audit other than the regular audit conducted by the
Company at the end of its fiscal year, in which case the filing may be delayed
until the completion of such regular audit (unless the Demand Party requesting
such registration agrees to pay the expenses of the Company in connection with
such an audit other than the regular audit).
SECTION 2.02 Registration Statement Form. The Company shall select the
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registration statement form for any registration pursuant to this Article II;
provided, that if any registration requested pursuant to this Article II which
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is proposed by the Company to be effected by the filing of a registration
statement on Form S-3 (or any successor or similar short-form registration
statement) shall be in connection with an underwritten public offering, and if
the managing underwriter shall advise the Company in writing that, in its
opinion, the use of another form of registration statement is of material
importance to the success of such proposed offering, then such registration
shall be effected on such other form.
SECTION 2.03 Expenses. The Company will pay all Registration Expenses in
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connection with the first six registrations of each class or series of
Registrable Securities pursuant to this Article II. All expenses for any
subsequent registrations of Registrable Securities pursuant to this Article II
shall be paid pro rata by the Company and all other Persons (including any
Demand Party) participating in such registration on the basis of the relative
number of shares of Common Stock of each such Person included in such
registration.
SECTION 2.04 Effective Registration Statement. A registration requested
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pursuant to this Article II will not be deemed to have been effected unless it
has become effective and all of the Registrable Securities registered thereunder
have been sold; provided, that if within 180 days after it has become effective,
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the offering of Registrable Securities pursuant to such registration is
interfered with by any stop order, injunction or other order or
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requirement of the Commission or other Governmental Entity, such registration
shall be deemed not to have been effected.
SECTION 2.05 Selection of Underwriters. If a requested registration
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pursuant to this Article II involves an underwritten offering, the investment
banker(s), underwriter(s) and manager(s) for such registration shall be selected
by the Demand Party holding the Registrable Securities which the Company has
been requested to register; provided, however, that such investment banker(s),
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underwriter(s) and manager(s) shall be reasonably satisfactory to the Company.
SECTION 2.06 Priority in Requested Registrations. If a requested
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registration pursuant to this Article II involves an underwritten offering and
the managing underwriter advises the Company in writing that, in its opinion,
the number of securities to be included in such registration (including
securities of the Company which are not Registrable Securities) would be likely
to have an adverse effect on the price, timing or distribution of the securities
to be offered in such offering as contemplated by the Demand Parties, then the
Company shall include in such registration only the Registrable Securities
requested to be included in such registration by the Demand Parties. In the
event that the number of Registrable Securities requested to be included in such
registration is less than the number which, in the opinion of the managing
underwriter, can be sold, the Company may include in such registration the
securities the Company proposes to sell up to the number of securities that, in
the opinion of such managing underwriter, can be sold without having the adverse
effect referred to above.
SECTION 2.07 Additional Rights. If the Company at any time grants to any
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other holders of Common Stock any rights to request the Company to effect the
registration under the Securities Act of any such shares of Common Stock on
terms more favorable to such holders than the terms set forth in this Article
III, the terms of this Article II shall be deemed amended or supplemented to the
extent necessary to provide the Demand Parties such more favorable rights and
benefits.
ARTICLE III
REGISTRATION PROCEDURES
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SECTION 3.01 Registration Procedures. If and whenever the Company is
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required to use its best efforts to effect or cause the registration of any
Registrable Securities under the Securities Act as provided in this Agreement,
the Company will, as expeditiously as possible:
(a) prepare and, in any event within 120 days after the end of the period
within which a request for registration may be given to the Company, file with
the Commission a registration statement with respect to such Registrable
Securities and use its best efforts to cause such registration statement to
become effective;
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(b) prepare and file with the Commission such amendments and supplements to
such registration statement and the prospectus used in connection therewith as
may be necessary to keep such registration statement effective for a period not
in excess of 180 days and to comply with the provisions of the Securities Act
and the Exchange Act with respect to the disposition of all securities covered
by such registration statement during such period in accordance with the
intended methods of disposition by the seller or sellers thereof set forth in
such registration statement; provided, that before filing a registration
statement or prospectus, or any amendments or supplements thereto, the Company
will furnish to counsel selected pursuant to Article VI hereof copies of all
documents proposed to be filed, which documents will be subject to the review of
such counsel;
(c) furnish to each seller of such Registrable Securities such number of
copies of such registration statement and of each amendment and supplement
thereto (in each case including all exhibits filed therewith, including any
documents incorporated by reference), such number of copies of the prospectus
included in such registration statement (including each preliminary prospectus
and summary prospectus), in conformity with the requirements of the Securities
Act, and such other documents as such seller may reasonably request in order to
facilitate the disposition of the Registrable Securities by such seller;
(d) use its best efforts to register or qualify such Registrable Securities
covered by such registration in such jurisdictions as each seller shall
reasonably request, and do any and all other acts and things which may be
reasonably necessary or advisable to enable such seller to consummate the
disposition in such jurisdictions of the Registrable Securities owned by such
seller, except that the Company shall not for any such purpose be required to
qualify generally to do business as a foreign corporation in any jurisdiction
where, but for the requirements of this subsection (d), it would not be
obligated to be so qualified, to subject itself to taxation in any such
jurisdiction or to consent to general service of process in any such
jurisdiction;
(e) use its best efforts to cause such Registrable Securities covered by
such registration statement to be registered with or approved by such other
Governmental Entities as may be necessary to enable the seller or sellers
thereof to consummate the disposition of such Registrable Securities;
(f) notify each seller of any such Registrable Securities covered by such
registration statement, at any time when a prospectus relating thereto is
required to be delivered under the Securities Act, of the Company's becoming
aware that the prospectus included in such registration statement, as then in
effect, includes an untrue statement of a material fact or omits to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading in the light of the circumstances then existing, and at
the request of any such seller, prepare and furnish to such seller a reasonable
number of copies of an amended or supplemental prospectus as may be necessary so
that, as thereafter delivered to the purchasers of such Registrable Securities,
such prospectus shall not include an untrue statement of a material
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fact or omit to state a material fact required to be stated therein or necessary
to make the statements therein not misleading in the light of the circumstances
then existing;
(g) otherwise use its best efforts to comply with all applicable rules and
regulations of the Commission, and make available to its security holders, as
soon as reasonably practicable (but not more than 18 months) after the effective
date of the registration statement, an earnings statement which shall satisfy
the provisions of Section 11(a) of the Securities Act;
(h) (i) if such Registrable Securities are Common Stock, use its best
efforts to list such Registrable Securities on any securities exchange on which
the Common Stock is then listed if such Registrable Securities are not already
so listed and if such listing is then permitted under the rules of such
exchange; and (ii) use its best efforts to provide a transfer agent and
registrar for such Registrable Securities covered by such registration statement
not later than the effective date of such registration statement;
(i) enter into such customary agreements (including an underwriting
agreement in customary form), which may include indemnification provisions in
favor of underwriters and other Persons in addition to, or in substitution for
the provisions of Article IV hereof, and take such other actions as sellers of a
majority of shares of such Registrable Securities or the underwriters, if any,
reasonably requested in order to expedite or facilitate the disposition of such
Registrable Securities;
(j) obtain a "cold comfort" letter or letters from the Company's
independent public accounts in customary form and covering matters of the type
customarily covered by "cold comfort" letters as the seller or sellers of a
majority of shares of such Registrable Securities shall reasonably request;
(k) make available for inspection by any seller of such Registrable
Securities covered by such registration statement, by any underwriter
participating in any disposition to be effected pursuant to such registration
statement and by any attorney, accountant or other agent retained by any such
seller or any such underwriter, all pertinent financial and other records,
pertinent corporate documents and properties of the Company, and cause all of
the Company's officers, directors and employees to supply all information
reasonably requested by any such seller, underwriter, attorney, accountant or
agent in connection with such registration statement;
(l) notify counsel (selected pursuant to Article VI hereof) for the Demand
Party holding Registrable Securities included in such registration statement and
the managing underwriter or agent, immediately, and confirm the notice in
writing (i) when the registration statement, or any post- effective amendment to
the registration statement, shall have become effective, or any supplement to
the prospectus or any amendment prospectus shall have been filed, (ii) of the
receipt of any comments from the Commission, (iii) of any request of the
Commission to amend the registration statement or amend or supplement the
prospectus or for additional information, and (iv) of the issuance by the
Commission of any stop order suspending the effectiveness of the registration
statement or of any order preventing or suspending the use of
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any preliminary prospectus, or of the suspension of the qualification of the
registration statement for offering or sale in any jurisdiction, or of the
institution or threatening of any Actions for any of such purposes;
(m) make every reasonable effort to prevent the issuance of any stop order
suspending the effectiveness of the registration statement or of any order
preventing or suspending the use of any preliminary prospectus and, if any such
order is issued, to obtain the withdrawal of any such order at the earliest
possible moment;
(n) if requested by the managing underwriter or agent or any holder of
Registrable Securities covered by the registration statement, promptly
incorporate in a prospectus supplement or post-effective amendment such
information as the managing underwriter or agent or such holder reasonably
requests to be included therein, including, with respect to the number of
Registrable Securities being sold by such holder to such underwriter or agent,
the purchase price being paid therefor by such underwriter or agent and with
respect to any other terms of the underwritten offering of the Registrable
Securities to be sold in such offering; and make all required filings of such
prospectus supplement or post-effective amendment as soon as practicable after
being notified of the matters incorporated in such prospectus supplement or
post-effective amendment;
(o) cooperate with the holders of Registrable Securities covered by the
registration statement and the managing underwriter or agent, if any, to
facilitate the timely preparation and delivery of certificates (not bearing any
restrictive legends) representing securities to be sold under the registration
statement, and enable such securities to be in such denominations and registered
in such names as the managing underwriter or agent, if any, or such holders may
request;
(p) obtain for delivery to the holders of Registrable Securities being
registered and to the underwriter or agent an opinion or opinions from counsel
for the Company in customary form and in form, substance and scope reasonably
satisfactory to such holders, underwriters or agents and their counsel;
(q) cooperate with each seller of Registrable Securities and each
underwriter or agent participating in the disposition of such Registrable
Securities and their respective counsel in connection with any filings required
to be made with the NASD; and
(r) use its best efforts to make available the executive officers of the
Company to participate with the holders of Registrable Securities and any
underwriters in any "road shows" or other selling efforts that may be reasonably
requested by the Demand Party in connection with the methods of distribution for
the Registrable Securities.
SECTION 3.02. Information Supplied. The Company may require each seller
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of Registrable Securities as to which any registration is being effected to
furnish the Company with such information regarding such seller and pertinent to
the disclosure requirements relating to
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the registration and the distribution of such securities as the Company may from
time to time reasonably request in writing.
SECTION 3.03. Restrictions on Disposition. Each Demand Party agrees that,
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upon receipt of any notice from the Company of the happening of any event of the
kind described in Section 3.01(f), such Demand Party will forthwith discontinue
disposition of Registrable Securities pursuant to the registration statement
covering such Registrable Securities until such Demand Party's receipt of the
copies of the supplemented or amended prospectus contemplated by Section
3.01(f), and, if so directed by the Company, such Demand Party will deliver to
the Company (at the Company's expense) all copies, other than permanent file
copies then in such Demand Party's possession, of the prospectus covering such
Registrable Securities current at the time of receipt of such notice. In the
event the Company shall give any such notice, the period mentioned in Section
3.01(b) shall be extended by the number of days during the period from and
including the date of the giving of such notice pursuant to Section 3.01(f) and
including the date when each seller of Registrable Securities covered by such
registration statement shall have received the copies of the supplemented or
amended prospectus contemplated by Section 3.01(f).
ARTICLE IV
INDEMNIFICATION
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SECTION 4.01 Indemnification by the Company. In the event of any
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registration of any securities of the Company under the Securities Act pursuant
to Article II, the Company shall, and it hereby does, indemnify and hold
harmless, to the extent permitted by law, the seller of any Registrable
Securities covered by such registration statement, each affiliate of such seller
and their respective directors and officers or general and limited partners (and
any director, officer, affiliate, employee, agent and controlling Person of any
of the foregoing), each Person who participates as an underwriter in the
offering or sale of such securities and each other Person, if any, who controls
such seller or any such underwriter within the meaning of the Securities Act
(collectively, the "Indemnified Parties"), against any and all Actions (whether
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or not an Indemnified Party is a party thereto), losses, damages or liabilities,
joint or several, and expenses (including reasonable attorney's fees and
reasonable expenses of investigation) to which such Indemnified Party may become
subject under the Securities Act, common law or otherwise, insofar as such
Actions, losses, damages, liabilities or expenses arise out of, relate to or are
based upon (a) any untrue statement or alleged untrue statement of any material
fact contained in any registration statement under which such securities were
registered under the Securities Act, any preliminary, final or summary
prospectus contained therein, or any amendment or supplement thereto, or (b) any
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein (in the case of a
prospectus, in light of the circumstances under which they were made) not
misleading; provided, that the Company shall not be liable to any Indemnified
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Party in any such case to the extent that any such Action, loss, damage,
liability or expense arises out of, relates to or is based
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upon any untrue statement or alleged untrue statement or omission or alleged
omission made in such registration statement or amendment or supplement thereto
or in any such preliminary, final or summary prospectus in reliance upon and in
conformity with written information furnished to the Company through an
instrument duly executed by such seller specifically stating that it is for use
in the preparation thereof; and, provided, further, that the Company will not be
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liable to any Person who participates as an underwriter in the offering or sale
of Registrable Securities or any other Person, if any, who controls such
underwriter within the meaning of the Securities Act, under the indemnity
agreement in this Section with respect to any preliminary, final or summary
prospectus, or any amendment or supplement thereto, to the extent that any such
Action, loss, damage, liability or expense of such underwriter or controlling
Person results from the fact that such underwriter sold Registrable Securities
to a Person to whom there was not sent or given, at or prior to the written
confirmation of such sale, a copy of the final prospectus (including any
documents incorporated by reference therein) or of the final prospectus, as then
amended or supplemented (including any documents incorporated by reference
therein), whichever is most recent, if the Company has previously furnished
copies thereof to such underwriter. Such indemnity shall remain in full force
and effect regardless of any investigation made by or on behalf of any
Indemnified Party and shall survive the transfer of securities by any seller.
SECTION 4.02 Indemnification by the Seller. The Company may require, as
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a condition to including any Registrable Securities in any registration
statement filed in accordance
with Article II or Article III herein, that the Company shall have received an
undertaking reasonably satisfactory to it from the prospective seller of such
Registrable Securities or any underwriter to indemnify and hold harmless (in the
same manner and to the same extent as set forth in Section 4.01) the Company and
all other prospective sellers or any underwriter, as the case may be, with
respect to any untrue statement or alleged untrue statement in or omission or
alleged omission from such registration statement, any preliminary, final or
summary prospectus contained therein, or any amendment or supplement thereto, if
such untrue statement or alleged untrue statement or omission or alleged
omission was made in reliance upon and in conformity with written information
furnished to the Company through an instrument duly executed by such seller or
underwriter specifically stating that it is for use in the preparation of such
registration statement, preliminary, final or summary prospectus or amendment or
supplement, or a document incorporated by reference into any of the foregoing.
Such indemnity shall remain in full force and effect regardless of any
investigation made by or on behalf of the Company or any of the prospective
sellers, or any of their respective affiliates, directors, officers or
controlling Persons and shall survive the transfer of securities by any seller.
In no event shall the liability of any selling holder of Registrable Securities
hereunder be greater in amount than the dollar amount of the proceeds received
by such holder upon the sale of the Registrable Securities giving rise to such
indemnification obligation.
SECTION 4.03 Notices of Claims, Etc. Promptly after receipt by an
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indemnified party hereunder of written notice of the commencement of any Action
with respect to which a claim for indemnification may be made pursuant to this
Article IV, such indemnified
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party will, if a claim in respect thereof is to be made against an indemnifying
party, give written notice to the latter of the commencement of such Action;
provided, that the failure of the indemnified party to give notice as provided
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herein shall not relieve the indemnifying party of its obligations under Article
IV, except to the extent that the indemnifying party is materially prejudiced by
such failure to give notice. In case any such Action is brought against an
indemnified party, unless in such indemnified party's reasonable judgment a
conflict of interest between such indemnified and indemnifying parties may exist
in respect of such Action, the indemnifying party will be entitled to
participate in and to assume the defense thereof (at its expense), jointly with
any other indemnifying party similarly notified to the extent that it may wish,
with counsel reasonably satisfactory to such Indemnified Party, and after notice
from the indemnifying party to such indemnified party of its election so to
assume the defense thereof, the indemnifying party will not be liable to such
indemnified party for any legal or other expenses subsequently incurred by the
latter in connection with the defense thereof other than reasonable costs of
investigation. No indemnifying party will settle any Action or consent to the
entry of any judgment without the prior written consent of the indemnified
party, unless such settlement or judgment (i) includes as an unconditional term
thereof the giving by the claimant or plaintiff of a release to such Indemnified
Party from all liability in respect of such Action and (ii) does not involve the
imposition of equitable remedies or the imposition of any obligations on such
indemnified party and does not otherwise adversely affect such indemnified
party, other than as a result of the imposition of financial obligations for
which such indemnified party will be indemnified hereunder.
SECTION 4.04 Contribution. (a) If the indemnification provided for in
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this Article IV from the indemnifying party is unavailable to an indemnified
party hereunder in respect of any Actions, losses, damages, liabilities or
expenses referred to herein, then the indemnifying party, in lieu of
indemnifying such indemnified party, shall contribute to the amount paid or
payable by such indemnified party as a result of such Actions, losses, damages,
liabilities or expenses in such proportion as is appropriate to reflect the
relative fault of the indemnifying party and indemnified party in connection
with the actions which resulted in such Actions, losses, damages, liabilities or
expenses, as well as any other relevant equitable considerations. The relative
fault of such indemnifying party and indemnified party shall be determined by
reference to, among other things, whether any action in question, including any
untrue or alleged untrue statement of a material fact or omission or alleged
omission to state a material fact, has been made by, or relates to information
supplied by, such indemnifying party or indemnified party, and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such action. The amount paid or payable by a party under this Section
4.04 as a result of the Actions, losses, damages, liabilities and expenses
referred to above shall be deemed to include any legal or other fees or expenses
reasonably incurred by such party in connection with any Action.
(b) The parties hereto agree that it would not be just and equitable if
contribution pursuant to this Section 4.04 were determined by pro rata
allocation or by any other method of allocation which does not take account of
the equitable considerations referred to in Section 4.04(a). No Person guilty
of fraudulent misrepresentation (within the meaning of Section 11(f)
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of the Securities Act) shall be entitled to contribution from any Person who was
not guilty of such fraudulent misrepresentation.
SECTION 4.05 Other Indemnification. Indemnification similar to that
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specified in this Article IV (with appropriate modifications) shall be given by
the Company and each seller of Registrable Securities with respect to any
required registration or other qualification of securities under any law or with
any Governmental Entity other than as required by the Securities Act.
SECTION 4.06 Non-Exclusivity. The obligations of the parties under this
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Article IV shall be in addition to any liability which any party may otherwise
have to any other party.
ARTICLE V.
RULE 144
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SECTION 5.01 Rule 144. If the Company shall have filed a registration
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statement pursuant to the requirements of Section 12 of the Exchange Act or a
registration statement pursuant to the requirements of the Securities Act, the
Company covenants that it will file the reports required to be filed by it under
the Securities Act and the Exchange Act (or, if the Company is not required to
file such reports, it will, upon the request of any Demand Party, make publicly
available such information), and it will take such further action as any Demand
Party may reasonably request, all to the extent required from time to time to
enable such Demand Party to sell shares of Registrable Securities without
registration under the Securities Act within the limitation of the exemptions
provided by (a) Rule 144 under the Securities Act, as such Rule may be amended
from time to time, or (b) any similar rule or regulation hereafter adopted by
the Commission. Upon the request of any Demand Party, the Company will deliver
to such Demand Party a written statement as to whether it has complied with such
requirements. Notwithstanding anything contained in this Article V, the Company
may deregister under Section 12 of the Exchange Act if it then is permitted to
do so pursuant to the Exchange Act.
ARTICLE VI.
SELECTION OF COUNSEL
--------------------
SECTION 6.01 Selection of Counsel. In connection with any registration of
--------------------
Registrable Securities pursuant to Article II hereof, the Demand Party holding
the Registrable Securities covered by any such registration may select one
counsel to represent all holders of Registrable Securities covered by such
registration; provided, however, that in the event that the counsel selected as
-------- -------
provided above is also acting as counsel to the Company in connection with
13
such registration, the remaining holders of Registrable Securities covered by
such registration shall be entitled to select one additional counsel to
represent all such remaining holders.
ARTICLE VII.
MISCELLANEOUS
-------------
SECTION 7.01 Amendments and Waivers. This Agreement may not be amended
----------------------
except by an instrument in writing signed on behalf of the Company and each
Demand Party. Each holder of any Registrable Securities at the time or
thereafter outstanding shall be bound by any amendment authorized by this
Section, whether or not such Registrable Securities shall have been marked to
indicate such amendment.
SECTION 7.02 Successors, Assigns and Transferees. This Agreement shall be
-----------------------------------
binding upon and shall inure to the benefit of the parties hereto and their
respective successors and assigns.
SECTION 7.03 Notices. All notices, requests, claims, demands and other
-------
communications under this Agreement shall be in writing and shall be deemed
given if delivered personally or sent by overnight courier (providing proof of
delivery) to the parties at the following addresses (or at such other address
for a party as shall be specified by like notice):
(a) if to Ripplewood, to
c/o Ripplewood Holding LLC
Xxx Xxxxxxxxxxx Xxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxxxx
with a copy to:
Xxxxxxx Xxxxxxx & Xxxxxxxx
00 Xxxxxxxxx Xxxx Xxxxx - Xxxxx 0000
Xxxxxxxxx Xxxx, Xxxxxxxxxx 00000
Attention: Xxxxxx Xxxxxxx, Esq.;
(b) if to the WMC Holding, to
c/o Ripplewood Holding, LLC
Xxx Xxxxxxxxxxx Xxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxxxx
14
with a copy to:
Xxxxxxx Xxxxxxx & Xxxxxxxx
00 Xxxxxxxxx Xxxx Xxxxx - Xxxxx 0000
Xxxxxxxxx Xxxx, Xxxxxxxxxx 00000
Attention: Xxxxxx Xxxxxxx, Esq.; and
(c) if to the Company, to
Western Multiplex Corporation
0000 Xxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxxx 4089
Attention: Chief Financial Officer.
SECTION 7.04 Interpretation. The headings contained in this
--------------
Agreement are for reference purposes only and shall not affect in any way the
meaning or interpretation of this Agreement. Whenever the words "include",
"includes" or "including" are used in this Agreement, they shall be deemed to be
followed by the words "without limitation".
SECTION 7.05 Counterparts. This Agreement may be executed in one or
------------
more counterparts, all of which shall be considered one and the same agreement
and shall become effective when one or more counterparts have been signed by
each of the parties and delivered to the other parties.
SECTION 7.06 Entire Agreement; No Third-Party Beneficiaries. This
----------------------------------------------
Agreement and the other agreements referred to herein constitute the entire
agreement, and supersede all prior agreements and understandings, both written
and oral, between the parties with respect to the subject matter of this
Agreement. Except for the indemnification provisions of Article IV and as
provided in Section 7.02, this Agreement is not intended to confer upon any
Person other than the parties any rights or remedies.
SECTION 7.07 GOVERNING LAW; JURISDICTION. THIS AGREEMENT SHALL BE
---------------------------
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW
YORK.
SECTION 7.08 Enforcement. The parties agree that irreparable damage
-----------
would occur in the event that any of the provisions of this Agreement were not
performed in accordance with their specific terms or were otherwise breached.
It is accordingly agreed that the parties shall be entitled to an injunction or
injunctions to prevent breaches of this Agreement and to enforce specifically
the terms and provisions of this Agreement.
SECTION 7.9 No Recourse. Notwithstanding anything that may be
-----------
expressed or implied in this Agreement, the Company and each Demand Party
covenant, agree and
15
acknowledge that no recourse under this Agreement or any documents or
instruments delivered in connection with this Agreement shall be had against any
current or future director, officer, employee, general or limited partner,
member, affiliate or assignee of the Demand Parties or of any of the foregoing,
whether by the enforcement of any assessment or by any legal or equitable
proceeding, or by virtue of any statute, regulation or other applicable law, it
being expressly agreed and acknowledged that no personal liability whatsoever
shall attach to, be imposed on or otherwise be incurred by any current or future
officer, agent or employee of either Demand Party or any current or future
member of either Demand Party or any current or future director, officer,
employee, partner, member, affiliate or assignee of any of the foregoing, as
such for any obligation of the Demand Parties under this Agreement or any
documents or instruments delivered in connection with this Agreement for any
claim based on, in respect of or by reason of such obligations or their
creation.
16
IN WITNESS WHEREOF, each of the parties has caused this Agreement to
be duly executed and delivered as of the date first written above.
RIPPLEWOOD HOLDINGS, L.L.C.
By: /s/ Xxxxxxx X. Xxxxxxx
------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Managing Director
WESTERN MULTIPLEX CORPORATION
By: /s/ Xxxxx Xxxxx
------------------------------
Name: Xxxxx Xxxxx
Title: Secretary
WMC HOLDING CORP.
By: /s/ Xxxxxxx X. Xxxxxxx
-----------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Secretary
