Exhibit 4.2
CLEARWIRE CORPORATION
AMENDED AND RESTATED STOCKHOLDERS AGREEMENT
This Amended and Restated Stockholders Agreement ("Agreement") is made as
of the 16th day of March, 2004 by and among Clearwire Corporation, a Delaware
corporation (the "Company"), and each stockholder of the Company listed on
Schedule A hereto executing this Agreement (a "Stockholder").
RECITALS
A. Flux Fixed Wireless, LLC ("FFW") has formed the Company to engage
in strategic acquisitions to assemble spectrum rights and other assets to
develop a competitive wireless broadband services company.
B. The parties deem it in their respective best interests to provide
for an agreed composition of the Board of Directors, for certain restrictions on
the transfer of any interest in the current or future classes of the capital
stock of the Company (the "Shares"), and for the purchase of Shares upon the
occurrence of certain events, and the parties believe that such restrictions
will minimize the business disruption that could result from transfers and
decisions not made in accordance with this Agreement.
C. The Company and certain Stockholders entered into that certain
Stockholders Agreement dated as of November 13, 2003 (the "Original Agreement").
D. Prior to the date hereof, NextNet Wireless, Inc. ("NextNet") has
agreed to have a subsidiary of the Company merge with and into NextNet, and
pursuant to such merger, certain stockholders of NextNet will receive shares of
the Company's Class A Common Stock and warrants to purchase shares of the
Company's Class A Common Stock.
E. The Stockholders own 100% of the issued and outstanding Shares
(such issued and outstanding Shares, together with any securities of the Company
that Stockholders may later acquire, are referred to collectively as the
"Stock").
F. The parties desire to amend the Original Agreement as set forth
herein.
G. Certain capitalized terms used in this Agreement have the
definitions provided in Section 12 hereof.
THEREFORE, for good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the parties, intending legally to be bound,
agree as follows:
AGREEMENT
1. PREEMPTIVE RIGHTS
1.01 GRANT OF PREEMPTIVE RIGHTS
The Company hereby grants to each Eligible Stockholder and each Eligible
NextNet Stockholder the preemptive rights set forth in this Section 1 with
respect to each issuance of Shares, or securities or instruments convertible
into or exchangeable or exercisable for any Shares, of any class of capital
stock of the Company, other than the Stock that is issued and outstanding as of
the date of this Agreement and other than Shares issued or issuable in the
following circumstances (collectively, subject to the following exceptions, "New
Shares"):
(a) Shares issued pursuant to Section IV, Section 2.(d) of the Certificate;
(b) Shares (and/or options, warrants or other Share purchase rights, and
the Shares issued pursuant to such options, warrants or other rights) issuable
or issued to employees, consultants, directors, vendors, lessors or others with
whom the Company conducts business, provided that such shares, options, warrants
or other rights are issued directly in a transaction approved by the Board of
Directors of the Company or pursuant to a stock option plan or restricted stock
plan approved by the Board of Directors of the Company and provided further that
each of the foregoing transactions is primarily for non-financing purposes;
(c) Shares (and/or options, warrants or other Share purchase rights, and
the Shares issued pursuant to such options, warrants or other rights) issued to
financial institutions or lessors in connection with commercial credit
arrangements, equipment financing or similar transactions;
(d) Shares (and/or options, warrants or other Share purchase rights, and
the Shares issued pursuant to such options, warrants or other rights) issued
pursuant to transactions involving technology licensing, research or development
activities, the use or acquisition of strategic assets, properties or rights, or
the distribution, manufacture or marketing of the Company's products, provided
that each of the foregoing transactions is primarily for non-financing purposes;
(e) Shares issuable or issued in connection with bona fide acquisitions of
or by the Company whether by merger, consolidation, sale of assets, sale or
exchange of stock or otherwise, the terms of which are approved by the Board of
Directors of the Company;
(f) Shares (and/or options, warrants or other Share purchase rights, and
the Shares issued pursuant to such options, warrants or other rights) issued or
issuable (i) to the public pursuant to the IPO or (ii) upon exercise of warrants
or rights granted to underwriters in connection with such IPO;
(g) Shares (and/or options, warrants or other Share purchase rights, and
the Shares issued pursuant to such options, warrants or other rights) issuable
or issued pursuant to agreements and warrants existing on the date hereof that
are listed on Schedule 1.01 to this Agreement;
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(h) Shares issued upon conversion of convertible securities or instruments
outstanding on the date hereof that are issued in compliance with the preemptive
rights set forth in this Section 1; and/or
(i) Shares issued in connection with any stock split, stock dividend,
reserve stock split or other distribution of shares that does not affect the
economic interests or rights of holders of Shares.
1.02 EXERCISE OF PREEMPTIVE RIGHTS
Each time after the date of this Agreement and prior to the time that the
Company proposes to offer any New Shares, the Company shall first make an
offering of such New Shares to the Eligible Stockholders and the Eligible
NextNet Stockholders in accordance with this Section 1.02.
(a) The Company shall deliver a notice (the "Issue Notice") to the Eligible
Stockholders and the Eligible NextNet Stockholders stating (i) the bona fide
intention of the Company to offer such New Shares, (ii) the number of such New
Shares to be offered, and (iii) the price and terms upon which the Company
proposes to offer such New Shares.
(b) By written notification received by the Company, within 10 business
days after receipt of the Issue Notice, each Eligible Stockholder and each
Eligible NextNet Stockholder may elect to purchase, at the price and on the
terms specified in the Issue Notice, a portion of such New Shares that equals
the proportion that the number of shares of Stock including any options,
warrants or other share purchase rights held by such Stockholder bears to the
total number of shares of Stock of the Company then outstanding, on a fully
diluted basis, but excluding (i) any options, warrants or other rights to
acquire Shares where the fair market value of the Shares issuable on the
exercise of such options, warrants or other rights, as determined in good faith
by the Board of Directors of the Company, is less that the exercise price of
such options, warrants or other rights and (ii) any Shares and options, warrants
or other rights to acquire Shares that are reserved but unallocated pursuant to
any stock plan. Such written notification shall be a binding, irrevocable
commitment to purchase such New Shares.
(c) If Eligible Stockholders and the Eligible NextNet Stockholders do not
elect to purchase all of the New Shares that Eligible Stockholders and the
Eligible NextNet Stockholders are entitled to purchase under subsection (b), the
Company may offer the unsubscribed portion of such New Shares to any Persons at
a price not less than, and upon terms no more favorable to the offeree, than
those specified in the Issue Notice, provided that the Company completes the
offer and sale of such unsubscribed portion within 120 business days after the
date the applicable Issue Notice is first delivered to stockholders of the
Company.
(d) Each of HITN and Clearwire may assign its rights under this Section 1
to a Designee; provided, that the Company shall only be obligated to deliver
Issue Notices to HITN and Clearwire. No other Stockholder may assign its rights
under this Section 1 without the consent of the Company which may be withheld at
its sole discretion.
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1.03 RECAPITALIZATIONS, REORGANIZATIONS, BANKRUPTCY
The Company grants to each Eligible Stockholder and each Eligible NextNet
Stockholder a preemptive right to participate on a pro rata basis (calculated
pursuant to Section 1.02(b) above) with any XxXxx Entity in any
recapitalization, reorganization, bankruptcy or similar transaction of the
Company effected in such a manner that the preemptive rights granted pursuant to
Section 1.01 do not apply (a "Restructuring"). The Company shall deliver a
notice (the "Restructuring Notice") to the Eligible Stockholders and the
Eligible NextNet Stockholders stating (i) the bona fide intention of the Company
to engage in a Restructuring, (ii) a description of the Restructuring, and (iii)
the price and terms upon which the Eligible Stockholders and Eligible NextNet
Stockholders will be entitled to participate. By written notification received
by the Company, within 10 business days after receipt of the Restructuring
Notice, each Eligible Stockholder and each Eligible NextNet Stockholder may
elect to participate in the Restructuring at the price and on the terms
specified in the Restructuring Notice, which indicates price and terms shall be
identical to those offered to the XxXxx Entities. Such written notification
shall be a binding, irrevocable commitment to participate in the Restructuring
on the same terms and conditions as the XxXxx Entities.
1.04 TERMINATION OF PREEMPTIVE RIGHTS
If an Eligible NextNet Stockholder fails to fully exercise its preemptive
rights pursuant to Section 1.01 or Section 1.03 at any time, then such Eligible
NextNet Stockholder shall no longer be entitled to any preemptive rights
pursuant Section 1.01 and Section 1.03 and such rights shall be terminated in
their entirety with respect to such NextNet Stockholder; provided, however, that
such rights shall not terminate in connection with the first opportunity to
exercise the rights granted under Sections 1.01 and 1.03 so long as the Eligible
NextNet Shareholder has purchased at least 50% of the Shares that the Eligible
NextNet Shareholder was entitled to purchase.
2. ANTI-DILUTION RIGHTS
2.01 GRANT OF ANTI-DILUTION RIGHTS
The Company shall not issue and sell or agree to issue and sell New Shares
to a XxXxx Entity for consideration per share that is less than the Trigger
Price in effect immediately prior to such issue (each, a "Dilutive Issuance"),
unless the Company concurrently issues to each of HITN, ISA, Clearwire and each
NextNet Stockholder (or their respective Permitted Transferees) for no
consideration a number of New Shares equal to (i) such Stockholder's Adjusted
Shares less (ii) such Stockholder's Original Shares. No fractional Shares shall
be issued pursuant to this Section 2.01. The number of Shares issued shall be
rounded up to the nearest integral number of whole Shares.
For the purposes of this Section 2.01, for each Dilutive Issuance, the
following terms shall have the following meanings:
(a) "Adjusted Shares" means, for each of HITN, ISA, Clearwire and each
NextNet Stockholder (or their respective Permitted Transferees), the number
obtained by dividing (x) such Stockholder's Original Shares by (y) the product
of (1) the Trigger Price in effect immediately prior to such issue multiplied by
(2) the Adjustment Ratio.
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(b) "Adjustment Ratio" means the fraction in which (i) the numerator is the
sum of (A) the total number of all shares of capital stock of the Company issued
and outstanding immediately prior to Dilutive Issuance, and (B) the number of
shares that the aggregate consideration received by the Company from the XxXxx
Entities in the Dilutive Issuance would purchase at the Trigger Price in effect
immediately prior to such Dilutive Issuance, and (ii) the denominator is the sum
of (C) the total number of all shares of capital stock of the Company issued and
outstanding immediately prior to the Dilutive Issuance and (D) the total number
of all New Shares that the Company issues to the XxXxx Entities in the Dilutive
Issuance. For the purposes of this Section 2.01, the total number of all shares
of capital stock of the Company issued and outstanding immediately prior to the
Dilutive Issuance shall be determined on a fully-diluted and as-converted to
Class A Common Stock basis (but excluding any shares and options, warrants or
other rights to acquire shares that are reserved but unallocated pursuant to any
stock plan);
(c) "Original Shares" means, for each of HITN, ISA, Clearwire and each
NextNet Stockholder (or their respective Permitted Transferees), the total
number of Shares held by HITN, ISA, Clearwire or NextNet Stockholders, as
applicable, on March __, 2004 or hereafter acquired by HITN, ISA or Clearwire,
as applicable, pursuant to an agreement with the Company existing on the date
hereof (other than pursuant to this Agreement), excluding any Shares acquired at
an effective price less than the Trigger Price in effect immediately prior to
the issuance that results in an anti-dilutive adjustment pursuant to this
Section 2.01, and that are held by such Stockholder immediately prior to a
Dilutive Issuance (as adjusted for any stock split, stock dividend, reverse
stock split or other distribution of shares); and
(d) "Trigger Price" shall initially mean the Original Issue Price. The
Trigger Price shall be proportionately adjusted from time to time for any stock
splits (subdivisions or combinations), stock dividends, recapitalizations or
reorganizations pursuant to which securities of the Company are issued with
respect to a Stockholder's Original Shares.
2.02 AUTOMATIC WAIVER OF ANTI-DILUTION RIGHTS
If a Stockholder exercises its preemptive rights pursuant to Section 1
hereof with respect to any new financing that would otherwise trigger the rights
under this Section 2, such Stockholder's exercise of its preemptive rights shall
be deemed an automatic waiver of such Stockholder's rights to receive additional
Shares pursuant to Section 2.01.
2.03 TERMINATION OF ANTI-DILUTION RIGHTS
The rights granted under this Section 2 shall terminate immediately after
the closing of one or more equity financing transactions in which the Company
raises an aggregate of $75,000,000 at a pre-money valuation of at least
$250,000,000 and a value per Share of Common Stock of at least $3.00, as
established in good faith by the Company's Board of Directors.
3. ADDITIONAL XXXXX ENTITY INVESTMENTS
The parties acknowledge and agree that the XxXxx Entities shall have the
unfettered right to invest additional funds and property in the Company at any
time and from time to time in
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exchange for additional Shares of Class B Common Stock at the higher of (i) the
higher of the Original Issue Price or the Current Price, or (ii) the price
otherwise established for such purpose by agreement between the Company and one
or more of the XxXxx Entities or by decision of the Board of Directors from time
to time, subject only to the rights of the other Stockholders under Section 1
hereof. If the price for the additional Shares of Class B Common Stock is less
than the higher of the Original Issue Price or the Current Price, the
transaction shall be fair to the Company and require the approval of the
Disinterested Directors; provided further, that the approval of the
Disinterested Directors shall not be required in the event the purchase of
Shares by a XxXxx Entity is pursuant to the exercise of its preemptive rights
pursuant to Section 1 hereof.
4. RESTRICTIONS ON TRANSFERS
4.01 DEFINITION OF A TRANSFER
For purposes of this Agreement the term "Transfer" shall be interpreted
broadly to include, by way of example and without limitation whatsoever, any
direct or indirect sale, assignment, award, confirmation, distribution, bequest,
donation, trust, pledge, encumbrance, hypothecation, or other transfer or
disposition, for consideration or otherwise, whether voluntarily, involuntarily,
by operation of law, or otherwise. In addition, with respect to a Stockholder
that is an entity, the term "Transfer" includes (i) the direct or indirect
transfer of a controlling ownership or voting interest in such Stockholder or in
the ultimate direct or indirect controlling Person (or group of Persons acting
in concert) of such Stockholder, (ii) any transaction such as new issuances of
equity, a merger or other business combination, spin-off or distribution that
would result in a Change in Control of such Stockholder or of the ultimate
direct or indirect controlling Person (or group of Persons) of such Stockholder,
and (iii) any dividend, distribution, or other transfer of Stock from the
Stockholder to any of its owners, in dissolution, liquidation, or otherwise.
4.02 GENERAL RESTRICTIONS
No Share or any interest therein, whether legal, beneficial or otherwise,
shall be validly Transferred, and no purported transferee shall be recognized as
a Stockholder of the Company for any purpose whatsoever, except in accordance
with the terms of this Agreement. A Transfer or attempt to Transfer subject to
the terms of this Agreement shall be deemed to occur whenever an interest in a
Share is transferred or is attempted to be transferred, whether voluntarily,
involuntarily, by operation of law, or otherwise, whether or not any change in
the record of the ownership of the Shares occurs.
4.03 PERMITTED TRANSFERS
Except for the purposes of Section 4.04, the definition of the term
"Transfer" shall not include, and the restrictions on Transfers in this
Agreement shall not apply to, any of the following transactions (each, a
"Permitted Transfer"):
(a) Any issuance of equity securities by the Company or purchase of Shares
by the Company.
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(b) Any transfer by a Stockholder of all, but not less than all, of such
Stockholder's Shares to the spouse or any lineal descendant of such Stockholder,
including adopted children, or to a trust for the exclusive benefit of such
Stockholder or such Stockholder's spouse or lineal descendants (provided, in the
case of a trust, that the existing trustees of such trust have the power to act
with respect to the trust's assets without court approval).
(c) Any transfer to the estate or personal representative of the estate of
a deceased Stockholder.
(d) Any transfer by Clearwire to any Qualified Clearwire Stockholder or any
Qualified Transferee, provided, that immediately after giving effect to such
transfer the total number of Clearwire Stockholders (including Clearwire itself)
will not exceed thirty-three (33).
(e) Any transfer after the fourth anniversary of the date of this
Agreement, by a venture capital fund that is winding down and liquidating to (i)
the partners, members or other equity holders of such fund, (ii) the partners,
members or other equity holders or employees of the managing or controlling
partners, members or other equity holders of such fund and (iii) a trust for the
benefit of any of the foregoing.
(f) Any transfer of Stock to a XxXxx Entity (other than the Company and its
subsidiaries).
(g) Any transfer by a XxXxx Entity to strategic partners, Associates, or
Affiliates of a XxXxx Entity.
(h) Any conversion, exchange, or exercise of convertible, exchangeable, or
exercisable securities, stock options, or warrants if in all cases the holder of
the issued Stock after such conversion or exercise is the same as the holder of
the converted or exercised securities.
(i) Any pledge of Shares pursuant to a bona fide loan transaction which
creates a mere security interest (with no rights to vote the Shares), provided
that foreclosure of such pledge is not a Permitted Transfer unless it otherwise
complies with this Section 4.03.
(j) Any transfer in connection with a share exchange, merger,
consolidation, or reorganization of the Company that is approved by the Company
or its stockholders in accordance with the Governing Documents, the DGCL, and
this Agreement.
(k) Any transfer by a Stockholder to a Qualified Transferee who is
acquiring all, but not less than all, of such Stockholder's Shares with the
prior written consent of the Company, which shall not be unreasonably
conditioned, withheld or delayed.
(l) Any transfer by a Stockholder with the prior written consent of the
Company, which it may withhold in its sole discretion.
(m) Any transfer after a Termination Event.
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4.04 CONDITIONS PRECEDENT TO ALL TRANSFERS AND PERMITTED TRANSFERS
No Stockholder shall Transfer any Stock except in compliance with
applicable federal and state securities laws. The Company may, as a condition to
any proposed Transfer pursuant to an exemption from the registration
requirements under applicable federal and state securities laws, require that
the Stockholder proposing to Transfer Stock provide the Company with an opinion
of counsel reasonably satisfactory to the Company stating that the Transfer is
so exempt. No Transfer shall be effective unless such Transfer is made in
accordance with applicable federal and state securities laws and the transferee
has executed and delivered a Joinder in the form attached as Exhibit A, in favor
of the Company and each Stockholder, stating that by acquiring such Stock, the
transferee has agreed to all terms and conditions of this Agreement as if such
transferee were an original party hereto.
5. XXXXX ENTITY PURCHASE RIGHTS
5.01 RIGHT OF FIRST REFUSAL
With respect to any Transfer, or agreement to engage in a Transfer, prior
to the earlier of (i) January 1, 2009 or (ii) a Termination Event, the XxXxx
Entities shall have, and each other Stockholder hereby irrevocably grants to the
XxXxx Entities, the rights (the "Right of First Refusal") described in this
Section 5.01.
(a) A Stockholder (other than a XxXxx Entity) (the "Selling Stockholder")
that desires to Transfer its Stock in compliance with this Section 5.01 must
first receive a bona fide, written, binding offer and commitment ("Offer") for
the acquisition of any or all of the Transferor's Shares from a Qualified
Transferee (other than an Affiliate or an Associate of the Selling Stockholder),
that is capable of consummating the proposed acquisition on the terms of the
Offer, conditioned only on the exercise of Stockholder rights under this
Agreement and satisfaction of customary closing conditions. Upon receipt and
acceptance of an Offer, the Selling Stockholder shall give written notice (the
"ROFR Notice") to FFW stating that the Selling Stockholder intends to Transfer
Stock. The ROFR Notice shall identify the Qualified Transferee, specify the type
and number of shares of Stock to be Transferred to the Qualified Transferee (the
"ROFR Shares"), specify the per share price (in cash or other consideration)
(the "Sale Price") that the Qualified Transferee has agreed to pay for the ROFR
Shares, and enclose an accurate summary of all terms and conditions of the
proposed transfer.
(b) The ROFR Notice shall constitute the Selling Stockholder's binding
offer to sell the ROFR Shares to the XxXxx Entities on the terms set forth in
the ROFR Notice and this Agreement. The XxXxx Entities, or any of them, shall
have 10 business days after delivery of the ROFR Notice (subject to any required
regulatory approvals, provided that the appropriate XxXxx Entity is using
commercially reasonable efforts to satisfy such regulatory condition as soon as
reasonably practicable) (the "ROFR Exercise Period") to exercise its right to
purchase all, but not less than all of, the ROFR Shares at the Sale Price and
upon the other terms and conditions set forth in the ROFR Notice by written
notice to the Selling Stockholder within the ROFR Exercise Period.
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(c) Failure to deliver such a notice within the ROFR Exercise Period shall
constitute waiver of the Right of First Refusal with respect to the ROFR Shares,
and the Selling Stockholder shall have ninety (90) business days thereafter to
complete the transfer of the ROFR Shares to the Qualified Transferee pursuant to
the Offer; otherwise, the ROFR Shares shall thereupon be again subject to the
right of first refusal described in this Section 5.01 before any transfer can be
made.
(d) Delivery of a notice exercising the Right of First Refusal shall create
a binding contract between the applicable XxXxx Entities and the Selling
Stockholder for the purchase and sale of the ROFR Shares at the Sale Price and
on the terms and conditions in the Offer and this Section 5.01. In that event,
the XxXxx Entities exercising the right of first refusal shall deliver the Sale
Price for the ROFR Shares, in immediately available funds, to the Selling
Stockholder to effectuate the Transfer of the ROFR Shares within five business
days after the end of the ROFR Exercise Period or the satisfaction of the
conditions to closing contained in the ROFR Notice provided that the appropriate
XxXxx Entity is using commercially reasonable efforts to cause such condition to
be satisfied as soon as reasonably practicable. The Selling Stockholder shall
effectuate the Transfer of the ROFR Shares by promptly delivering to the
applicable XxXxx Entities one or more certificates, properly endorsed for
transfer, that represent the ROFR Shares, together with stock powers and such
other closing documentation at the applicable XxXxx Entities may reasonably
request.
(e) A Transfer to one of the XxXxx Entities or a Qualified Transferee in
accordance with this Section 5.01 is not subject to Section 4.02 or Section 7.
5.02 RIGHT OF FIRST OFFER
At any time prior to the earlier of (i) January 1, 2009 or (ii) a
Termination Event, when the XxXxx Entities do not have the Right of First
Refusal (other than with respect to a Permitted Transfer), the XxXxx Entities
shall have, and each Stockholder hereby irrevocably grants to the XxXxx
Entities, the rights (the "Right of First Offer") described in this Section
5.02:
(a) A Selling Stockholder that desires to Transfer its Stock in compliance
with this Section 5.02 must first give written notice (the "ROFO Notice") to FFW
stating that the Selling Stockholder intends to Transfer Stock. The ROFO Notice
shall identify the Qualified Transferee, if known, and specify the type and
number of shares of Stock to be Transferred (the "ROFO Shares") and specify the
proposed Sale Price.
(b) The ROFO Notice shall constitute the Selling Stockholder's binding
offer to sell the ROFO Shares to the XxXxx Entities on the terms set forth in
the ROFO Notice and this Agreement. The XxXxx Entities, or any of them, shall
have 10 business days after delivery of the ROFO Notice (subject to any required
regulatory approvals, provided that the appropriate XxXxx Entity is using
commercially reasonable efforts to satisfy such regulatory condition as soon as
reasonably practicable) (the "ROFO Exercise Period") to exercise its right to
purchase all, but not less than all of, the ROFO Shares at the Sale Price and
upon the other terms and conditions set forth in the ROFO Notice by written
notice to the Selling Stockholder within the ROFO Exercise Period.
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(c) Failure to deliver such a notice within the ROFO Exercise Period shall
constitute waiver of the Right of First Offer with respect to the ROFO Shares,
and the Selling Stockholder shall have ninety (90) calendar days thereafter to
complete the transfer of the ROFO Shares to a Qualified Transferee at a price no
lower than the Sale Price and the other terms set forth in the ROFO Notice, or
other terms that taken as a whole are no less favorable to the Selling
Stockholder; otherwise, the ROFO Shares shall thereupon be again subject to the
Right of First Offer described in this Section 5.02 before any transfer can be
made.
(d) Delivery of a notice exercising the Right of First Offer shall create a
binding contract between the applicable XxXxx Entities and the Selling
Stockholder for the purchase and sale of the ROFO Shares at the Sale Price and
on the terms and conditions in the ROFO Notice and this Section 5.02. In that
event, the XxXxx Entities exercising the Right of First Offer shall deliver the
Sale Price for the ROFO Shares, in immediately available funds, to the Selling
Stockholder to effectuate the Transfer of the ROFO Shares within five business
days after the end of the ROFO Exercise Period or the satisfaction of the
conditions to closing contained in the ROFO Notice provided that the appropriate
XxXxx Entity is using commercially reasonable efforts to cause such condition to
be satisfied as soon as reasonably practicable. The Selling Stockholder shall
effectuate the Transfer of the ROFO Shares by promptly delivering to the
applicable XxXxx Entities one or more certificates, properly endorsed for
transfer, that represent the ROFO Shares, together with stock powers and such
other closing documentation at the applicable XxXxx Entities may reasonably
request.
(e) A Transfer in accordance with this Section 5.02 is not subject to
Section 4.02 or Section 7.
6. PARTICIPATION IN TRANSFERS BY XXXXX ENTITIES
6.01 DRAG/TAG NOTICE
In the event ("Participation Trigger") any one or more XxXxx Entities (the
"Selling XxXxx Entities") commits to a Transfer of 25% or more of all Stock then
held by all XxXxx Entities in a bona fide arm's-length transaction, or a series
of related bona fide arm's length transactions, with a Person that is not an
Affiliate of the XxXxx Entities, then before consummating the sale, the Selling
XxXxx Entities shall give written notice (the "Drag/Tag Notice") to all other
Stockholders informing them of the material terms of the Transfer, including the
identity of the potential purchaser, the type and number of shares of Stock to
be transferred to the potential purchaser (the "Drag/Tag Shares"), the weighted
average price per share to be paid by the potential purchaser to any selling
XxXxx Entities (the "Drag/Tag Price"), and the transfer date.
6.02 EXERCISE OF DRAG ALONG RIGHT
(a) The Selling XxXxx Entities shall have the right (subject to the
regulatory approvals), exercisable upon written notice to the other Stockholders
within 10 business days after the delivery of the Drag/Tag Notice, to require
all other Stockholders to Transfer their Drag Along Pro Rata Share (as defined
herein) concurrently with the Transfer by the Selling XxXxx Entities at the
Drag/Tag Price and on the same terms and conditions as those received by the
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Selling XxXxx Entities (the "Drag Along Right"). The Selling XxXxx Entities
shall specify in the Drag/Tag Notice the number of shares to be sold by each
Stockholder, which shall equal the product of the Stockholder's Percentage times
the number of Drag/Tag Shares (the "Drag Along Pro Rata Share").
(b) Notwithstanding Section 6.01 and subparagraph (a) of this Section 6.02,
with respect to any Shares held by HITN, the Selling XxXxx Entities may only
exercise the Drag Along Right if such Selling XxXxx Entity commits to a Transfer
of 51% or more of all Stock then held by all XxXxx Entities in a bona fide
arm's-length transaction with a Person that is not an Affiliate of the XxXxx
Entities unless the Drag/Tag Price equals 2 times the Original Issue Price.
6.03 EXERCISE OF TAG-ALONG RIGHT
If, upon the occurrence of a Participation Trigger, none of the Selling
XxXxx Entities invoke their Drag Along Rights pursuant to Section 6.02, then
before consummating the sale, each Stockholder shall have the right (subject to
the regulatory approvals) ("Tag Along Right"), exercisable upon written notice
to the Selling XxXxx Entities within 10 business days after the delivery of the
Drag/Tag Notice, to participate in the Selling XxXxx Entities' Transfer of
Drag/Tag Shares. Such written notice shall constitute the Stockholder's election
to cause the transferee to purchase, at the Drag/Tag Price and on the terms and
conditions as those received by the Selling XxXxx Entities, a portion of the
Stockholder's Stock equal the product of the Stockholder's Percentage times the
number of Drag/Tag Shares.
6.04 DELIVERY OF SHARES; CLOSING
At least three days prior to the transfer date (provided that the other
Stockholders shall have received at least 10 business days' advance notice of
the transfer date), all selling Stockholders shall deliver to the Company the
certificates evidencing their respective Stock to be sold under this Section
5.02, duly endorsed for transfer to the potential purchaser. On the transfer
date and provided that the XxXxx Entities consummate the Transfer of their pro
rata share of the Drag/Tag Shares to the potential purchaser at the Drag/Tag
Price and on the same terms and conditions, then the Company shall deliver the
certificates evidencing all Drag/Tag Shares held by the Stockholders to the
purchaser against payment of the Drag/Tag Price for such Stock, and the Company
shall promptly remit such payment to the Stockholders in the respective amounts
due them without reduction or adjustment of any kind except as may be required
by law.
6.05 INAPPLICABILITY OF TRANSFER RESTRICTIONS
A Transfer in accordance with this Section 6 is not subject to Section 4.02
or 7.
6.06 REMEDIES
Each Stockholder hereby consents to every sale pursuant to this Section 6,
and hereby agrees to sell its Stock on the terms and conditions approved by the
XxXxx Entities. All Stockholders shall take all necessary actions approved by
the XxXxx Entities in connection with the consummation of the sale, so long as
all such actions are equally applicable to the XxXxx
11
Entities, including the execution of such agreements and such instruments and
other actions reasonably necessary (a) to the extent required by the potential
purchaser, to make, severally but not jointly, the same customary
representations, warranties, indemnities, covenants, conditions, escrow
agreements, and other agreements relating to such sale and (b) to effectuate the
allocation and distribution of the aggregate consideration upon the sale as set
forth in this Section 5.02.
In the event a Stockholder fails to comply with the requirements of this
Section 5.02, the XxXxx Entities and the Company shall have, in addition to
whatever other rights they may have in law or in equity, such call rights
against such Stockholder as shall be necessary and appropriate to effect the
intent of this Section 6, and the Stockholders agree to be bound by such call
rights.
7. OTHER EVENTS CONSTITUTING AN OFFER TO PURCHASE SHARES
7.01 REPURCHASE EVENTS
Except for Permitted Transfers and Transfers pursuant to Section 5 or 6 (as
to Right of First Refusal, Drag-Along Rights, and Tag-Along Rights), any one or
more of the following events or conditions with respect to a Stockholder shall
be deemed to constitute a "Repurchase Event" with respect to such Stockholder's
Shares:
(a) The filing of a petition in bankruptcy by or against a Stockholder or
any general assignment by a Stockholder for the benefit of such Stockholder's
creditors;
(b) The dissolution or commencement of liquidation of a Stockholder that is
an entity, except for a Transfer in accordance with Section 4.03(d) or 4.03(k);
(c) The Change of Control of a Stockholder that is an entity without the
prior written consent of the Company, which such consent shall not be
unreasonably withheld or delayed; or
(d) Any Transfer, or any other event which, were it not for the provisions
of this Agreement, would cause any such Shares or any interest therein to be
transferred, in violation of Section 4 of this Agreement.
7.02 OFFER NOTICE
Within 30 days after the occurrence of a Repurchase Event, the Stockholder
or the Stockholder's trustee in bankruptcy, personal representative, guardian,
executor, or administrator, as appropriate (for purposes of this Section 7, the
"Transferor") shall give notice (for purposes of this Section 7, the "Offer
Notice") to FFW of such Repurchase Event, specifying the date of the Repurchase
Event and describing in reasonable detail the nature of the Repurchase Event and
the number of Shares affected (the "Offered Shares"). The Offer Notice shall
state that the price per share is the lower of the Original Issue Price or the
Current Price. If FFW has not received this notice upon the expiration of the
30-day period, any Stockholder, director, or officer of the Company who has
knowledge of the Repurchase Event may give such notice (with a copy of the same
to the Transferor) at any time after the end of such period, and such notice
shall be deemed to be the Offer Notice.
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7.03 PURCHASE OF SHARES
Upon the occurrence of any Repurchase Event, the Company shall have the
right to purchase the Offered Shares for the price and on the terms described in
this Section 7. Each purchase of Shares pursuant to this Section 7 shall be made
in accordance with the following terms and conditions:
(a) Within 15 business days after receipt of the Offer Notice (the "Offer
Period"), the Company shall have the right to purchase all or part of the
Offered Shares shall deliver to the Secretary notice of its acceptance of the
offer (the "Acceptance Notice") specifying the number of Offered Shares that the
Company agrees to purchase. Delivery of an Acceptance Notice to the Secretary
shall create a binding contract between the Company and the Transferor for the
purchase and sale of the Offered Shares.
(b) If the Company does not exercise their right to purchase all of the
Offered Shares as provided above, the XxXxx Entities shall have the right to
purchase any remaining Offered Shares (the "Remaining Offered Shares") by giving
an Acceptance Notice to the Secretary during the Offer Period stating the number
of Remaining Offered Shares that each such XxXxx Entity agrees to purchase.
Delivery of an Acceptance Notice to the Secretary shall create a binding
contract between each such XxXxx Entity and the Transferor for the purchase and
sale of the Offered Shares. Notwithstanding the foregoing, the XxXxx Entities
may not exercise the purchase right granted under this Section 7.03(b) unless a
majority of the Disinterested Directors have approved the Company's
determination not to exercise its right to purchase all of the Offered Shares.
7.04 PAYMENT FOR THE SHARES
Each purchaser of Offered Shares shall pay the price for its respective
Offered Shares by making a payment of 25% thereof at closing and by paying the
balance in three equal annual installments, together with interest on the unpaid
balance from at a per annum rate equal to the prime rate last reported by Bank
of America National Association prior to closing, plus 1%. The first installment
of principal and interest shall be paid on the 15th day of the month following
closing. Interest shall accrue on the unpaid balance commencing on the closing
date. The unpaid balance may be prepaid in whole or in part at any time without
penalty, and may be accelerated in the event of failure to pay any installment
when due, in which case reasonable attorney's fees and costs may also be
recovered if any legal action for collection is commenced. The other terms and
conditions and procedures for transferring Offered Shares shall be determined in
accordance with Section 5.01(d).
8. BOARD PARTICIPATION RIGHTS
8.01 SIZE OF THE BOARD OF DIRECTORS
The authorized number of directors on the Company's Board of Directors
shall be not less than five and not more than eleven; provided, however, that
such number may be increased or decreased by vote of the Board.
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8.02 SELECTION OF DIRECTORS
(a) In any election of directors of the Company, each Stockholder shall
vote such number of shares of Stock as may be necessary to elect as a director
one individual nominated by the HITN (the "HITN Director"), but only if the HITN
owns, in the aggregate, Stock representing at least 5% of the Voting Shares of
the Company, it being understood that the initial HITN Director shall be Xxxx
Xxxx Xxxxxxxxx.
(b) In any election of directors of the Company, each Stockholder shall
vote such number of shares of Stock as may be necessary to elect as a director
one individual nominated by the Clearwire Stockholders (the "Clearwire
Director"), but only if the Clearwire Stockholders own, in the aggregate, Stock
representing at least 10% of the Voting Shares of the Company, it being
understood that the initial Clearwire Director shall be a person to be
determined by Clearwire in the future.
(c) Any director of the Company may be removed from the Board of the
Directors in the manner allowed by law and the Company's Bylaws, but with
respect to a director designated pursuant to this Section 8.02, only upon the
vote or written consent of the Stockholders entitled to designate such director.
Any vacancies on the Board of Directors shall be filled in accordance with this
Section 8.02.
8.03 IMPLEMENTATION
(a) Each Stockholder will vote its Shares (at any meeting of stockholders
or in any consent in lieu of a meeting), and shall take all other actions
necessary, to give effect to the provisions of this Section 8 and to cause the
Governing Documents not to conflict with the provisions of this Agreement.
(b) If any Stockholder fails to vote the Stockholder's Shares in accordance
with the voting agreement contained in this Section 8, any votes contrary to the
terms of this Section 8 shall be null and void. Each Stockholder hereby makes
and constitutes the Secretary of the Company as his true and lawful agent and
attorney-in-fact, with full power of substitution, in his name, place, and xxxxx
to vote as his proxy, each Share owned by such Stockholder for such nominees as
the other Stockholders select consistent with the terms of the voting agreement
contained in this Section 8. The foregoing power of attorney is coupled with an
interest and shall be irrevocable, shall survive the death or incapacity of each
Stockholder, and shall be binding on his estate, heirs, beneficiaries,
successors, and assigns.
(c) In addition to any other rights and remedies, each Stockholder (or its
personal representative, assignee, or successor) is entitled to enforce the
terms of this Section 8 by suit to enjoin a Stockholder from voting its Shares
in contravention of the terms of this Section 8.
8.04 OBSERVER RIGHTS
(a) If HITN owns Stock representing less than 5% of the Voting Shares of
the Company and no longer has a right to nominate the HITN Director pursuant to
Section 8.02(a) above, the Company shall permit one representative of HITN to
attend the meetings of the Company's Board of Directors in a non-voting observer
capacity, and such observer shall receive
14
such package of documents as are provided to all of the directors, including,
but not limited to the financial information described in Section 9.01 hereof.
(b) If the Clearwire Stockholders own, in the aggregate, Stock representing
less than 10% of the Voting Shares of the Company and no longer have a right to
nominate the Clearwire Director pursuant to Section 8.02(b) above, the Company
shall permit one representative of the Clearwire Stockholders to attend the
meetings of the Company's Board of Directors in a non-voting observer capacity,
and such observer shall receive such package of documents as are provided to all
of the directors, including, but not limited to the financial information
described in Section 9.01 hereof.
(c) If the Globespan Entities do not have a representative on the Company's
Board of Directors, and as long as the Globespan Entities hold, in the
aggregate, at least 66 2/3% of the aggregate Shares (i) acquired by them
pursuant to the NextNet Merger (excluding any transfers pursuant to Section 6.02
hereof) and (ii) resulting from the exercise by them of warrants issued to them
in connection with the NextNet Merger (in each case, as adjusted for stock
dividends, stock splits, reverse stock splits or other distributions of shares
made upon or in exchange for the Shares), the Company shall permit one
representative of the Globespan Entities to attend the meetings of the Company's
Board of Directors in a non-voting observer capacity, and such observer shall
receive such package of documents as are provided to all of the directors,
including, but not limited to the financial information described in Section
9.01 hereof. The initial representative of the Globespan Entities shall be Xxxxx
Xxxxxxxxx. Any successor representative shall be approved by FFW, which approval
shall not be unreasonably withheld.
(d) Each of HITN, the Clearwire Stockholders and the Globespan Entities
agree, that with respect to their respective rights in this Section 8.04, if, in
the Board of Directors' good faith judgment, such Stockholder has a competitive
conflict of interest with respect to the issue to be discussed, such exclusion
is reasonably necessary to protect highly confidential proprietary information
of the Company, the presence of Stockholder's representative would jeopardize
the Company's attorney-client privilege or for other similar reasons, (i) its
representative may be excluded from certain confidential "closed sessions" of
the Board of Directors or any portions of a Board of Directors' meeting, and/or
(ii) the Company shall not be obligated to provide the representatives with
documents related to such matters. For purposes of this subparagraph (d), the
fact that a Stockholder is a reseller of the Company's services or a lessor of
spectrum to the Company shall not deem, by itself, such Stockholder to have a
competitive interest. Each representative shall agree to hold in confidence and
trust and to act in a fiduciary manner with respect to all information provided
or acquired by such representative pursuant to this Section 8.04.
9. INFORMATION RIGHTS; ADDITIONAL COVENANTS
9.01 DELIVERY OF FINANCIAL STATEMENTS
At any time that the Company is not subject to the reporting requirements
of the 1934 Act, the Company shall deliver to each Stockholder (other than the
NextNet Stockholders) and each Eligible NextNet Stockholder that owns at least
0.25% of the Voting Shares of the Company:
15
(a) as soon as practicable, but in any event within 120 days after the end
of the fiscal year of the Company, subject to delivery to the Company by its
accountants, a consolidated balance sheet and statement of stockholders' equity
as of the end of such year and a consolidated statement of operations and
statement of cash flows for such year, such year-end financial statements to be
in reasonable detail, prepared in accordance with generally accepted accounting
principles, and audited and certified by independent public accountants selected
by the Company; and
(b) as soon as practicable, but in any event within 90 days after the end
of each of the first three quarters of each fiscal year of the Company, a
consolidated balance sheet and statement of stockholders' equity as of the end
of such fiscal quarter and a consolidated statement of operations and statement
of cash flows for such fiscal quarter, in reasonable detail.
9.02 INSPECTION
Until the Company is subject to the reporting requirements of the 1934 Act,
the Company shall permit each Stockholder (other than the NextNet Stockholders)
and each Eligible NextNet Stockholder that owns at least 0.25% of the Voting
Shares of the Company, at such Stockholder's expense, to visit and inspect the
properties of the Company, to examine its books of account and records and to
discuss its affairs, finances and accounts with its officers, all at such
reasonable times as may be requested by the Stockholder; provided, however, that
(i) the Company shall not be obligated pursuant to this Section 9.02 to provide
access to any information it reasonably considers to be a trade secret or
similar confidential information; (ii) prior to any disclosure under this
Section 9.02, the Company may require that the Stockholder agree in writing to
such confidentiality provisions as any of such entities may reasonably request
and (iii) disclosure of or access to information pursuant to this Section 9.02
shall not violate any applicable law. Nothing in this Section 9.02 shall limit
the statutory rights of a director or stockholder to inspection of the entity's
properties, books, and records.
9.03 FFW COVENANTS
(a) Until the termination of this Agreement pursuant to Section 11 hereof,
FFW hereby covenants and agrees, for itself and the XxXxx Entities, that the
Company and its subsidiaries shall be FFW's and the XxXxx Entities' sole entity
through which Xxxxx X. XxXxx or any XxXxx Entity acquires the right to own or
lease MDS, MMDS or ITFS spectrum in the United States for the purpose of
providing wireless point-to-multipoint fixed communications services; provided,
however, that for purposes of this Section 9.03(a), "XxXxx Entities" shall only
refer to Xxxxx X. XxXxx and those entities in which Xxxxx X. XxXxx owns,
directly or indirectly, securities constituting 51% or more of the voting power
of such entity.
(b) Until the termination of this Agreement pursuant to Section 11 hereof,
FFW hereby covenants and agrees, for itself and the XxXxx Entities, neither FFW
nor any XxXxx Entity shall vote to amend or modify the definition of
"Disinterested Director Approval" in the Certificate without (i) HITN's consent
so long as HITN is a Stockholder of the Company; and (ii) the approval of
Eligible NextNet Stockholders holding a majority of the aggregate Shares (as
adjusted for stock dividends, stock splits, reverse stock splits, or other
distributions of shares made upon or in exchange for the Shares) acquired by
them pursuant to the NextNet Merger,
16
provided that the Eligible NextNet Stockholders continue to hold at the time of
such approval at least 66 2/3% of such Shares.
10. LEGEND ON STOCK CERTIFICATES
Each certificate representing Shares shall be endorsed with substantially
the following legend:
THIS CERTIFICATE AND THE SHARES REPRESENTED HEREBY MAY NOT BE SOLD,
ASSIGNED, TRANSFERRED, ENCUMBERED, OR IN ANY MANNER DISPOSED OF EXCEPT IN
CONFORMITY WITH THE TERMS OF A WRITTEN STOCKHOLDERS AGREEMENT AMONG
CLEARWIRE CORPORATION AND THE REGISTERED HOLDER OF THE SHARES (OR THE
PREDECESSOR IN INTEREST TO THE SHARES). SUCH AGREEMENT CONTAINS CERTAIN
RIGHTS AND OBLIGATIONS REGARDING CORPORATE GOVERNANCE AND REGARDING THE
VOTING, SALE, ASSIGNMENT, TRANSFER, ENCUMBRANCE OR OTHER DISPOSITION OF
SUCH CORPORATIONS' SHARES. THE CORPORATION WILL UPON WRITTEN REQUEST
FURNISH A COPY OF SUCH AGREEMENT TO THE HOLDER HEREOF WITHOUT CHARGE.
The legend provided by this Section 10 may be removed upon termination of
this Agreement in accordance with the provisions of Section 11. Notwithstanding
any termination of this Agreement, each Stockholder acknowledges that Shares may
not be transferred absent compliance with applicable federal, state, and foreign
securities laws.
11. TERMINATION OF AGREEMENT
The restrictions, rights, and obligations in Sections 1 through 10 hereof
shall terminate upon the earlier of (a) the closing of an IPO or a transaction
in which all of the shares of the Company's Class A Common Stock are exchanged
for unrestricted securities that are listed on a recognized securities exchange
or NASDAQ National Market, (b) a Change of Control of the Company and (c) the
winding up of the Company's business. This Agreement may be terminated in its
entirety upon the written consent of all Stockholders, unless sooner terminated
in accordance with the preceding sentence.
12. DEFINITIONS AND INTERPRETATION
12.01 DEFINITIONS
Whenever used in the Agreement and the Exhibits and Schedules hereto, the
following terms shall have the respective meanings set forth in this Section
12.01. Capitalized terms used but not defined herein have the meanings given in
the Certificate.
"1934 Act" means the Securities and Exchange Act of 1934, as amended.
"Act" means the Securities Act of 1933, as amended.
17
"Affiliate" means a Person that directly, or indirectly through one or more
intermediaries, controls, is controlled by, or is under common control with the
Person specified. For purposes of this definition, an entity shall be deemed to
be controlled by a stockholder if (and only for so long as) (i) such stockholder
has the right to vote by ownership, proxy or otherwise securities constituting
5% or more of the voting power of such entity if such entity has equity
securities registered and files reports under the 1934 Act or otherwise (if not
reporting) securities constituting 10% or more of the voting power or economic
interests of such entity; (ii) such stockholder possesses, directly or
indirectly, the power to direct or cause the direction of the management and
policies of such entity, whether through the ownership of voting securities,
membership on the board or other governing entity, by contract or otherwise; or
(iii) with respect to a charitable trust, foundation or nonprofit corporation,
such stockholder is the sole trustee or director or has the power to appoint 20%
of the trustees or directors thereof, or otherwise has a strong and continuing
relationship as founder or substantial donor.
"Associate" means (i) any corporation or organization of which such Person
is an officer or partner or is, directly or indirectly, the beneficial owner of
10% or more of any class of equity securities, (ii) any trust or other estate in
which such Person has a substantial beneficial interest or as to which such
Person serves as trustee or in a similar fiduciary capacity and (iii) any
relative or spouse of such Person or any relative of such spouse, who has the
same home as such Person.
"Certificate" means the certificate of incorporation of the Company, as
amended from time to time.
"Change of Control" with respect to any entity means (i) a transfer of all
or substantially the assets of that entity or (ii) the transfer by the
stockholders, partners or members that own the entity, by means of a merger,
consolidation, reorganization, recapitalization or otherwise, of more than 50%
of the voting power of or economic interests in that entity.
"Clearwire" means Clearwire Holdings, Inc., a Delaware corporation.
"Clearwire Stockholders" means Clearwire, its Permitted Transferees
(including but not limited to any Qualified Clearwire Stockholders and Qualified
Transferees of Clearwire), and its Designee.
"Current Price" means (a) the price per Share applicable in the most recent
or contemporaneous third-party transaction in which the Company issued Shares
for cash consideration, or (b) if such third-party transaction was consummated
more than 120 days prior to the date of determination, then the price per Share
shall be the fair market value established in good faith by a majority of the
Disinterested Directors, provided, however, if a XxXxx Entity disagrees or
disputes with the determination of "Current Price" pursuant to clause (b) above,
then the XxXxx Entity may retain an independent firm reasonably acceptable to a
majority of the Disinterested Directors that has substantial experience in
valuing communications industry businesses and that has not provided any
financial advisory services to any XxXxx Entity within the last 24 months to
determine the Current Price which determination shall be binding on the Company
and the XxXxx Entity.
18
"DGCL" means the General Corporation Law of the State of Delaware, as
amended.
"Designee" means one Person that meets all of the following criteria: (a)
the Person is an "accredited investor" as defined under Regulation D of the Act,
(b) the Person is not a competitor of the Company, as reasonably determined by
the Board of Directors of the Company, (c) prior to the issuance of any Stock,
the Person executes and delivers a Joinder in the form of attached as Exhibit A,
in favor of the Company and each Stockholder, stating that by acquiring such
Stock, the Designee has agreed to all terms and conditions of this Agreement,
(d) the Board of Directors of the Company has not reasonably and in good faith
concluded that providing such Person any information to which a Stockholder is
entitled is likely to threaten the proprietary nature of such information or the
Company's business objectives or competitive positioning, and (e) with respect
to the Designee of Clearwire only, immediately after giving effect to the
purchase of shares by the Designee the total number of Clearwire Stockholders
(including Clearwire and the Designee) will not exceed thirty-three (33). For
purposes of this definition, the fact that a Stockholder is a reseller of the
Company's services or a lessor of spectrum to the Company shall not deem, by
itself, the provision of information to such Stockholder a likely threat to the
competitive positioning of the Company.
"Disinterested Directors" has the meaning as set forth in the Certificate.
"Eligible NextNet Stockholder" means each NextNet Stockholder and each
Stockholder who acquires Shares from a NextNet Stockholder pursuant to Section
4.03 hereof who is (a) an "accredited investor" as defined under Regulation D of
the Act, (b) holds, at the time of determination, at least 66 2/3% of the
aggregate Shares (as adjusted for stock dividends, stock splits, reverse stock
splits, or other distributions of shares made upon or in exchange for the
Shares) such NextNet Stockholder acquired pursuant to the NextNet Merger
(excluding any transfers pursuant to Section 6.02 hereof) and (c) holds, at the
time of determination, at least 66 2/3% of the Shares resulting from the
exercise of warrants issued to such NextNet Stockholder in connection with the
NextNet Merger.
"Eligible Stockholder" means each Stockholder holding at least 1% of the
outstanding capital stock of the Company, on a fully diluted basis.
"FFW" has the meaning in Recital A and includes any of its successors or
assigns.
"Globespan" means Globespan Capital Management.
"Globespan Entities" means the following NextNet Stockholders who are
controlled or managed by or Affiliated with Globespan: JAFCO America Technology
Fund III, LP, JAFCO America Technology Cayman Fund III, LP, JAFCO USIT Fund III,
LP, and JAFCO America Technology Affiliates Fund III, LP.
"Governing Documents" means the certificate of incorporation and by-laws of
this Company.
"HITN" means Hispanic Information and Telecommunications Network, Inc.
"ISA" means ITFS Spectrum Advisors, LLC.
19
"IPO" means the consummation of an underwritten public offering registered
under the Act, or an equivalent law under the laws of any other nation or
commonwealth, of at least $35 million in equity securities of the Company.
"XxXxx Entity" means FFW, Xxxxx X. XxXxx, or any of their respective
Affiliates.
"NextNet Merger" means that certain merger of NextNet with and into a
subsidiary of the Company effective as of March __, 2004.
"NextNet Stockholder" means a Stockholder who acquired Shares pursuant to
the NextNet Merger or pursuant to the exercise of warrants issued in connection
with the NextNet Merger.
"Original Issue Price" means $1.00 per share of common stock (of any
class), subject to adjustment for any stock dividend, stock split, reverse stock
split, or other distribution of shares.
"Percentage" of a Stockholder means the fraction in which the numerator
equals the total number of Shares held beneficially by such Stockholder and the
denominator equals the total number of issued and outstanding Shares, all
determined on a fully diluted basis (but excluding any shares and options,
warrants or other rights to acquire shares that are reserved but unallocated
pursuant to any stock plan).
"Permitted Transferee" means a Person who becomes a Stockholder as a result
of a Permitted Transfer in accordance with Section 4.03 hereof.
"Person" means any individual, corporation, partnership, company, trust or
other entity.
"Qualified Clearwire Stockholder" means a Person that meets all of the
following requirements: (a) the Person is a stockholder of Clearwire, (b) the
Person is an "accredited investor" as defined under Regulation D of the Act, (c)
the Person is not a competitor of the Company, as reasonably determined by FFW,
(d) FFW has not reasonably and in good faith concluded that providing such
Person any information to which a Stockholder is entitled is likely to threaten
the proprietary nature of such information or the Company's business objectives
or competitive positioning, and (e) immediately after giving effect to the
Transfer of shares to such Person the total number of Clearwire Stockholders
will not exceed thirty-three (33). Notwithstanding the foregoing, in the event
that a stockholder of Clearwire fails to qualify as a Qualified Clearwire
Stockholder as a result of subsection (c) or (d) above, then a Qualified
Clearwire Stockholder may include a Person substituted for such disqualified
stockholder of Clearwire who would qualify as a Qualified Clearwire Stockholder
if not for the requirement set forth in (a) above.
"Exchange Act" means the Securities Exchange Act of 1934, as amended, or
any successor law.
"Qualified Transferee" means a Person that meets all of the following
requirements: (a) the Person is an "accredited investor" as defined under
Regulation D of the Act, (b) the Person is not a competitor of the Company, as
reasonably determined by the Board of Directors of the Company, (c) the Board of
Directors of the Company has not reasonably and in good faith
20
concluded that providing such Person any information to which a Stockholder is
entitled is likely to threaten the proprietary nature of such information or the
Company's business objectives or competitive positioning, and (d) with respect
to any Person who is a proposed transferee of Clearwire only, immediately after
giving effect to the Transfer of shares to such Person (i) the total number of
Qualified Transferees to which Clearwire has transferred Shares under Section
4.03(d) of this Agreement will not exceed ten (10) and (ii) the total number of
Clearwire Stockholders will not exceed thirty-three (33). For purposes of this
definition, the fact that a Stockholder is a reseller of the Company's services
or a lessor of spectrum to the Company shall not deem, by itself, the provision
of information to such Stockholder a likely threat to the competitive
positioning of the Company.
"Termination Event" shall mean the earlier of the date on which (i) the
Company consummates an underwritten public offering registered under the Act, or
an equivalent law under the laws of any other nation or commonwealth, or (ii)
the Company is required to register under Section 12 of the Exchange Act, or a
substantially similar law under the laws of any other nation or commonwealth.
"Voting Shares" means all of the issued and outstanding Shares of any class
or series entitled to vote, calculated on an as-converted to Class A Common
Stock basis; provided, that the calculation of the number of Voting Shares for
purposes of this Agreement shall be without regard to the number of votes to
which each Share is entitled.
12.02 INTERPRETATION
The word "including" or any variation thereof means "including, without
limitation" and shall not be construed to limit any general statement that it
follows to the specific or similar items or matters immediately following it
When calculating the period of time before which, within which or following
which any act is to be done or step taken pursuant to this Agreement, the date
that is the reference date in calculating such period shall be excluded. If the
last day of such period is a non-business day, the period in question shall end
on the next succeeding business day.
Any reference in this Agreement to $ shall mean U.S. dollars.
Any reference in this Agreement to gender shall include all genders, and
words imparting the singular number only shall include the plural and vice
versa.
The provision of a Table of Contents, the division of this Agreement into
Sections and other subdivisions and the insertion of headings are for
convenience of reference only and shall not affect or be utilized in construing
or interpreting this Agreement. All references in this Agreement to any
"Section" are to the corresponding Section of this Agreement unless otherwise
specified.
The words such as "herein," "hereinafter," "hereof," and "hereunder" refer
to this Agreement as a whole and not merely to a subdivision in which such words
appear unless the context otherwise requires
21
The parties hereto have participated jointly in the negotiation and
drafting of this Agreement and, in the event an ambiguity or question of intent
or interpretation arises, this Agreement shall be construed as jointly drafted
by the parties hereto and no presumption or burden of proof shall arise favoring
or disfavoring any party by virtue of the authorship of any provision of this
Agreement.
13. GENERAL PROVISIONS
13.01 APPLICATION OF THIS AGREEMENT
This Agreement shall apply to (a) any share of capital stock in the Company
after issuance to any Stockholder for any reason, whether upon exercise of any
warrant or option or otherwise, and (b) any share of capital stock in the
Company received by any party as a result of any stock dividend, stock split,
reverse stock split, or other distribution of shares made upon or in exchange
for the Shares.
13.02 EFFECT OF NON-COMPLYING TRANSFERS
If any transfer in violation of this Agreement shall be attempted, or if
any involuntary or other purported transfer by law of any shares occurs or is
attempted, it shall be void, and upon presentation for transfer the Company
shall not give effect to such purported transfer.
13.03 ESCROW
At the request of any Stockholder participating in a Transfer governed by
this Agreement, an escrow shall be set up to effect the transfer of any
certificates or funds. Costs of such escrow shall be borne by such Stockholder.
13.04 SUCCESSORS AND ASSIGNS; THIRD PARTY BENEFICIARIES
Except as otherwise provided herein, each party agrees that it will not
assign, sell, transfer, delegate, or otherwise dispose of any right or
obligation under this Agreement, whether voluntarily, involuntarily, by
operation of law, or otherwise, except in accordance with the terms hereof. Any
purported assignment, transfer, or delegation in violation of this section shall
be null and void. Except as otherwise provided in this Agreement, the terms and
conditions of this Agreement shall inure to the benefit of and be binding on the
respective successors and assigns of the parties (including Permitted
Transferees). Nothing in this Agreement, express or implied, is intended to
confer on any party other than the parties to this Agreement or their respective
successors and assigns any rights, remedies, obligations or liabilities under or
by reason of this Agreement, except as expressly provided in this Agreement.
13.05 GOVERNING LAW
This Agreement shall in all respects, including all matters of
construction, validity, and performance, be governed by, and construed and
enforced in accordance with, the laws of the state of Delaware, without
reference to any rules governing conflicts of laws. However, in light of the
XxXxx Entities' presence in the State of Washington, and in light of the
location of the Company's headquarters in the State of Washington, any dispute
arising out of this Agreement
22
shall be resolved in a court of appropriate jurisdiction located in King County,
Washington. Each party specifically and expressly consents to the personal
jurisdiction of the state and federal courts located in King County, Washington.
13.06 COUNTERPARTS
This Agreement may be executed in two or more counterparts, each of which
shall be deemed an original, but all of which together shall constitute one and
the same instrument.
13.07 NOTICES
All notices, demands, requests or other communications that may be or are
required to be given, served, transmitted or delivered by any party to any other
party pursuant to this Agreement shall be in writing and shall be hand
delivered, or transmitted by verified facsimile or internationally recognized
air courier, addressed to the party to be notified at the address indicated for
such party on the signature page hereof, or at such other address as such party
may designate by 10 days' advance written notice to the other party given in the
foregoing manner. Each notice, demand, request or other communication that shall
be hand delivered, telecopied or delivered in the manner described above shall
be deemed sufficiently given, served, transmitted or delivered for all purposes
at such time as it is delivered to the addressee (with the delivery receipt or,
with respect to a telecopy, the answer back being deemed conclusive, but not
exclusive, evidence of such delivery) or at such time as delivery is refused by
the addressee upon presentation.
13.08 EXPENSES
If any action at law or in equity is necessary to enforce or interpret the
terms of this Agreement, the prevailing party shall be entitled to reasonable
attorneys' fees, costs, and necessary disbursements in addition to any other
relief to which such party may be entitled.
13.09 AMENDMENTS AND WAIVERS
Any term of this Agreement may be amended and the observance of any term
may be waived (either generally or in a particular instance and either
retroactively or prospectively) only with the written consent of Stockholders
who own securities representing a majority of the voting power of the Company's
then outstanding securities; provided that no Stockholder shall be subject to
additional obligations or diminished rights that adversely affect such
Stockholder or be treated in a manner different than other Stockholders unless
such Stockholder approved the amendment or waiver. Notwithstanding the
foregoing, Schedule A to this Agreement may be amended from time to time by (x)
the Company to reflect the actual holdings of the Stockholders of shares of
Stock without formally amending this Agreement or (y) a Joinder executed by a
new stockholder and the Company and delivered to all other Stockholders. Each
Stockholder agrees to execute any amendment or waiver effected in accordance
with this Section. Any amendment or waiver effected in accordance with this
Section shall be binding on each Stockholder then a party to this Agreement,
each future Stockholder and the Company.
The failure of any party to insist on or to enforce strict performance by
the other parties of any of the provisions of this Agreement or to exercise any
right or remedy under this
23
Agreement shall not be construed as a waiver or relinquishment to any extent of
that party's right to assert or rely on any provisions, rights or remedies in
that or any other instance; rather, the provisions, rights and remedies shall
remain in full force and effect. The exercise or non-exercise of the rights of a
Stockholder under this Agreement to participate in one or more Transfers of
Stock made by a Selling Stockholder or a XxXxx Entity shall not adversely affect
such Stockholder's rights to participate in subsequent Transfers by a Selling
Stockholder or a Selling XxXxx Entity.
13.10 SEVERABILITY
If one or more provisions of this Agreement are held to be unenforceable
under applicable law, such provision shall be excluded from this Agreement and
the balance of the Agreement shall be interpreted as if such provision were so
excluded and shall be enforceable in accordance with its terms.
13.11 NO PARTNERSHIP OR JOINT VENTURE
Neither execution nor performance of this Agreement shall be construed or
deemed to have established any joint venture or partnership or to have created
the relationship of agent and principal among the Company or its Affiliates and
the Stockholders or among any of the Stockholders. Except as otherwise set forth
in this Agreement or agreed in writing, at no time shall the Company or its
Affiliates make any commitments or incur any charges or expenses in the name of
any Stockholders, and vice versa, nor shall any Stockholders make any
commitments or incur any charges or expenses for, or in the name of, any other
Stockholders.
13.12 FURTHER ASSURANCES
Each party agrees from time to time to do and perform such other and future
acts (including the taking of board and stockholder action) and execute and
deliver any and all such other instruments as may be required by law or
reasonably requested by the other parties to establish, maintain or protect the
rights and remedies of the requesting party or to carry out and effect the
intent and purpose of this Agreement.
13.13 DAMAGES AND INJUNCTIVE RELIEF
No party shall be liable for any unforeseeable, special, consequential, or
indirect damages arising from any breach or nonobservance of any term or
condition of this Agreement. It is acknowledged that it will be impossible to
measure in money the damages that would be suffered if the parties fail to
comply with any of the obligations herein imposed on them and that in the event
of any such failure, an aggrieved person will be irreparably damaged and will
not have an adequate remedy at law. Any such person shall, therefore, be
entitled to injunctive relief, including specific performance, to enforce such
obligations, and if any action shall be brought in equity to enforce any of the
provisions of this Agreement, none of the parties hereto shall raise the defense
that there is an adequate remedy at law and in any case no bond or other
security shall be required.
24
13.14 ENTIRE AGREEMENT
This Agreement (including the schedules and exhibits hereto, which are
incorporated herein by this reference) supersedes all prior or contemporaneous
agreements, and all related understandings, written or oral, among the parties
with regard to the subject matter of this Agreement (but not other contracts to
which the Company may be subject) and constitutes the full and entire
understanding and agreement between the parties with regard to the subject
matter of this Agreement. The parties further intend that this Agreement shall
constitute the complete and exclusive statement of its terms and that no
extrinsic evidence whatsoever may be introduced in any judicial, administrative,
arbitration, or other legal proceeding involving this Agreement.
13.15 CONFIDENTIALITY
Each Stockholder hereby covenants and agrees that, during the effectiveness
of this Agreement, neither it, nor any of its employees, agent, officers or
directors, will at any time make use of, divulge or disclose to any third party
(other than good faith advisors or consultants to a party who agree to respect
the confidentiality of this Agreement or as required by law) without the prior
written consent of the Company except as permitted by this Section 13.15, any
confidential or proprietary information of the Company, including the business,
financial condition or operations of the Company, the terms of the NextNet
Merger and any information disclosed to the Stockholders in connection with the
NextNet Merger, the terms of this Agreement and any information disclosed to
Stockholders pursuant to this Agreement (the "Company Confidential
Information").
Notwithstanding the foregoing, the Company shall be entitled to disclose
the terms of this Agreement and such confidential proprietary information of the
Company to (a) other good-faith potential investors, lenders, business partners
and service providers and (b) in connection with any registration of Stock under
the Act. Each Stockholder shall be entitled to disclose Company Confidential
Information (i) to good-faith potential Transferees whose purchases do not or
will not violate the terms of this Agreement and to good-faith potential lenders
to such Stockholder or (ii) or as otherwise required under applicable law in the
good faith judgment of such Stockholder. Any disclosures (other than pursuant to
clause (b) of the second sentence of this Section 13.15) shall only be made to
Persons who have agreed in writing to keep the terms of this Agreement
confidential.
Notwithstanding anything herein to the contrary, any party to this
Agreement may disclose to any and all persons, without limitation of any kind,
the tax treatment and tax structure of the transactions contemplated by this
Agreement and the NextNet Merger and all materials of any kind (including
opinions or other tax analyses) that are provided to it relating to such tax
treatment and tax structure, except that this provision shall not permit
disclosure to the extent that nondisclosure is necessary in order to comply with
applicable securities law.
All of the foregoing obligations and restrictions of this Section 13.15 do
not apply to that part of the Company Confidential Information that: (i) such
Stockholder can demonstrate was in such Stockholder's possession prior to the
disclosure; (ii) was rightfully acquired by such Stockholder from a third party
not bound by the terms of this Agreement or not otherwise prohibited from
transmitting the Company Confidential Information to such Stockholder by a
25
contractual, legal, fiduciary or other obligation; (iii) is in or part of the
public domain or generally known to the public through no act or fault of such
Stockholder; or (iv) for which any such obligation as to confidentiality is
waived in writing by the Company.
13.16 COUNTERPARTS
This Agreement may be executed simultaneously in any number of
counterparts, each of which shall be deemed an original, but all such
counterparts shall together constitute one and the same instrument.
13.17 AMENDMENT AND RESTATEMENT
Effective as of the date of this Agreement, the Original Agreement shall be
amended and restated in its entirety by this Agreement.
[REMAINDER OF PAGE IS INTENTIONALLY BLANK; SIGNATURE LINES ARE
ON THE NEXT PAGE.]
26
IN WITNESS WHEREOF, the parties have duly executed this Agreement as of the
date first written above.
COMPANY: CLEARWIRE CORPORATION
By: /s/ R. Xxxxxx Xxxxxxx
------------------------------------
R. Xxxxxx Xxxxxxx, its President
Address: Clearwire Corporation
0000 Xxxxxxxx Xxxxx
Xxxxxxxx, Xxxxxxxxxx 00000
Attention:
Facsimile: (000) 000-0000
With a copy (which shall not constitute notice) to:
Address: Xxxxx Xxxxxx Xxxxxxxx LLP
0000 Xxxxxxx Xxxxxx
0000 Xxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxxxx X. Xxxxx
Facsimile: (000) 000-0000
[Signature page to Stockholders Agreement]
STOCKHOLDERS: FLUX FIXED WIRELESS, LLC
By: Eagle River, Inc., a Washington
corporation, its Manager
By: /s/ Xxxxx Xxxxxxxx
------------------------------------
Xxxxx Xxxxxxxx, its Vice President
Address: Flux Fixed Wireless, LLC
0000 Xxxxxxxx Xxxxx
Xxxxxxxx, Xxxxxxxxxx 00000
Attention:
Facsimile: (000) 000-0000
With a copy (which shall not constitute notice) to:
Address: Xxxxx Xxxxxx Xxxxxxxx LLP
0000 Xxxxxxx Xxxxxx
0000 Xxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxxxx X. Xxxxx
Facsimile: (000) 000-0000
[Signature page to Stockholders Agreement]
STOCKHOLDERS: HISPANIC INFORMATION AND
TELECOMMUNICATIONS NETWORK, INC.
By: /s/ Xxxx Xxxx Xxxxxxxxx
------------------------------------
Name: Xxxx Xxxx Xxxxxxxxx
Title: President
Address: Hispanic Information and
Telecommunications Network, Inc.
000 Xxxxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxx Xxxx Xxxxxxxxx
Facsimile: (000)-000-0000
With a copy (which shall not constitute notice) to:
Address: Day, Xxxxx & Xxxxxx LLP
Xxx Xxxxxxxxxx Xxxxx
Xxxxxxxx, XX 00000-0000
Attention: Xxxxxx Xxxxxxxxx III, Esq.
Facsimile: (000)-000-0000
and
RJGLaw LLC
0000 Xxxxxx Xxxxxx
Xxxxxx Xxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxx, Esq.
Facsimile: (000)-000-0000
[Signature page to Stockholders Agreement]
STOCKHOLDERS: CLEARWIRE HOLDINGS, INC.
By: /s/ Xxxxx X.XxXxx
------------------------------------
Name: Xxxxx X.XxXxx
Title: Chairman and CO-CEO
Address:
----------------------------------------
----------------------------------------
----------------------------------------
Attention:
-----------------------------
Fax No.:
-------------------------------
[Signature page to Stockholders Agreement]
STOCKHOLDERS:
DOLL TECHNOLOGY INVESTMENT
FUND, a California Limited Partnership
DOLL TECHNOLOGY AFFILIATES FUND, L.P.
DOLL TECHNOLOGY SIDE FUND, L.P.
By: Doll Technology Investment
Management, LLC, its General Partner
By: /s/ Xxxxx X. Xxxx
------------------------------------
Xxxxx R. Doll, its Managing Member
Address:
----------------------------------------
----------------------------------------
----------------------------------------
Attention:
-----------------------------
Fax No.:
-------------------------------
BIRCHWOOD PARTNERS
By: /s/ Xxxxx X. Xxxx
------------------------------------
Xxxxx R. Doll, its GP
-------------- ----------------
Address:
----------------------------------------
----------------------------------------
----------------------------------------
Attention:
-----------------------------
Fax No.:
-------------------------------
[Signature page to Stockholders Agreement]
JAFCO AMERICA TECHNOLOGY FUND III, LP
JAFCO AMERICA TECHNOLOGY CAYMAN FUND
III, LP
JAFCO USIT FUND III, LP
JAFCO AMERICA TECHNOLOGY AFFILIATES FUND
III, LP
By: /s/ Xxxxx X. Xxxxxxxxx
------------------------------------
Managing Member, JAV Management
Associates III, L.L.C.
Its General Partner
Address:
----------------------------------------
----------------------------------------
----------------------------------------
Attention:
-----------------------------
Fax No.:
-------------------------------
GREEN VENTURE CAPITAL II, L.P., A
CALIFORNIA LIMITED PARTNERSHIP
By: /s/ Xxxxxx Xxxxx
------------------------------------
Xxxxxx Xxxxx, Trustee of the Green
Living Trust, General Partner Green
Venture Capital II, L.P.
By: /s/ Xxxxxxx Xxxxx
------------------------------------
Xxxxxxx Xxxxx, Trustee of the Green
Living Trust, General Partner Green
Venture Capital II, L.P.
Address:
----------------------------------------
----------------------------------------
----------------------------------------
Attention:
-----------------------------
Fax No.:
-------------------------------
[Signature page to Stockholders Agreement]
XXXXXX XXXXXXXX
/s/ Xxxxxx Xxxxxxxx
----------------------------------------
Address:
----------------------------------------
----------------------------------------
----------------------------------------
Attention:
-----------------------------
Fax No.:
-------------------------------
XXXXXXX XXXXXX TRADING PARTNERS, L.P.
By: /s/ Xxxxxxx Xxxxxx
------------------------------------
Xxxxxxx Xxxxxx, its Partner
-------------- ----------------
Address:
----------------------------------------
----------------------------------------
----------------------------------------
Attention:
-----------------------------
Fax No.:
-------------------------------
COM HOLDINGS, LLC
BY EAGLE RIVER, INC., ITS MANAGER
By: /s/ Brain Marccyler
------------------------------------
Xxxxx Marccyler, its Partner
--------------- ---------------
Address:
----------------------------------------
----------------------------------------
----------------------------------------
Attention:
-----------------------------
Fax No.:
-------------------------------
[Signature page to Stockholders Agreement]
XXXXXX X. XXXXXX TRUST
By: /s/ Xxxxxx X. Xxxxxx
------------------------------------
Xxxxxx X. Xxxxxx , its Trustee
----------------- -------------
Address:
----------------------------------------
----------------------------------------
----------------------------------------
Attention:
-----------------------------
Fax No.:
-------------------------------
ENTERASYS NETWORKS, INC.
By: /s/ Xxxxxxx X. Xxxx, Xx.
------------------------------------
Xxxxxxx X. Xxxx, Xx. its CFO
------------------- -----------
Address:
----------------------------------------
----------------------------------------
----------------------------------------
Attention:
-----------------------------
Fax No.:
-------------------------------
[Signature page to Stockholders Agreement]
IMAGINE CAPITAL PARTNERS, L.P. XXVI
By: /s/ Xxxx Xxxx
------------------------------------
Xxxx Xxxx, its Partner
--------- -------------------
/s/ Xxxxxx Xxxxx
----------------------------------------
Xxxxxx Xxxxx
/s/ Xxxxxx Xxxxx
----------------------------------------
Xxxxxx Xxxxx
/s/ Xxxxx X. Xxxxxxx
----------------------------------------
Xxxxx X. Xxxxxxx
Address:
----------------------------------------
----------------------------------------
----------------------------------------
Attention:
-----------------------------
Fax No.:
-------------------------------
XXXXXX STREET PARTNERS, LLC
By: /s/ Xxxxxx X. Xxxxxxxxxxxx
------------------------------------
Xxxxxx X. Xxxxxxxxxxxx, its
----------------------
PRESIDENTS
------------
Address:
----------------------------------------
----------------------------------------
----------------------------------------
Attention:
-----------------------------
Fax No.:
-------------------------------
[Signature page to Stockholders Agreement]
THE XXXX GROUP, LLC
By: /s/ Xxxx Xxxx Xx.
------------------------------------
Xxxx Xxxx Xx., its Partner
------------- -----------------
Address:
----------------------------------------
----------------------------------------
----------------------------------------
Attention:
-----------------------------
Fax No.:
-------------------------------
WESTLAKE DEVELOPMENT COMPANY, INC.
By: /s/ M. Xxxx Xxxx
------------------------------------
, its Chief Operating
M. Xxxx Xxxx Officer
------------ ------------------
Address:
----------------------------------------
----------------------------------------
----------------------------------------
Attention:
-----------------------------
Fax No.:
-------------------------------
ALMARC TRADING LLC
By: /s/ Xxxxx Gerstil
------------------------------------
Xxxxx Gerstil , its Manager
------------- -----------------
Address:
----------------------------------------
----------------------------------------
----------------------------------------
Attention:
-----------------------------
Fax No.:
-------------------------------
[Signature page to Stockholders Agreement]
XXXX XXXXXXXXX
/s/ XXXX XXXXXXXXX
----------------------------------------
Address:
----------------------------------------
----------------------------------------
----------------------------------------
Attention:
-----------------------------
Fax No.:
-------------------------------
XXXX XXXXXXXXXX
/s/ XXXX XXXXXXXXXX
----------------------------------------
Address:
----------------------------------------
----------------------------------------
----------------------------------------
Attention:
-----------------------------
Fax No.:
-------------------------------
XXXX XXXXXXXXXX
/s/ XXXX XXXXXXXXXX
----------------------------------------
Address:
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----------------------------------------
----------------------------------------
Attention:
-----------------------------
Fax No.:
-------------------------------
[Signature page to Stockholders Agreement]
