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EXHIBIT 4.3
FIRST AMENDMENT
TO
SECOND AMENDED AND RESTATED SHAREHOLDERS'
AND REGISTRATION RIGHTS AGREEMENT
This FIRST AMENDMENT TO SECOND AMENDED AND RESTATED SHAREHOLDERS' AND
REGISTRATION RIGHTS AGREEMENT (this "First Amendment"), which amends the SECOND
AMENDED AND RESTATED SHAREHOLDERS' AND REGISTRATION RIGHTS AGREEMENT (the
"Second Amended and Restated Agreement") dated as of April 16, 1997 by and among
AirNet Communications Corporation, a Delaware corporation (the "Company"), and
the shareholders whose signatures appear on the signature pages thereto (the
shareholders are collectively referred to as the "Shareholders" and individually
as a "Shareholder") is made as of September 20, 1999 by and among the Company
and the Shareholders.
WITNESSETH:
WHEREAS, the Company is contemplating an initial public offering of shares of
its authorized but unissued common stock, in accordance with the terms of a
registration statement to be filed with the Securities and Exchange Commission;
and
WHEREAS, the Company and the Shareholders desire to amend the Second Amended and
Restated Agreement in accordance with Section 9.2 thereof to clarify certain
provisions relating to piggyback registration rights.
NOW, THEREFORE, intending to be legally bound, the parties hereto agree that the
Second Amended and Restated Agreement is hereby amended as follows:
1. Section 4.4(a) of the Second Amended and Restated Agreement is
hereby amended and restated in its entirety as follows:
"4.4 (a) Whenever the Company proposes to file a Registration
Statement (other than by a registration pursuant to Section 4.3, a registration
pursuant to the Company's Initial Public Offering, a registration statement on
Form S-3 that is automatically declared effective, or a registration statement
on Form S-4 or S-8 or their successors, or any registration statement covering
only securities proposed to be issued in exchange for securities or assets of
another corporation) at any time and from time to time, it will, prior to such
filing, give written notice to all Holders of its intention to do so and, upon
the written request of a Holder or Holders given within twenty (20) business
days after the Company provides such notice, the Company shall use its best
efforts to cause all Registrable Shares which the Company has been requested by
such Holder or Holders to register to be registered under the Act to the extent
necessary to
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permit their sale or other disposition in accordance with the intended methods
of distribution specified in the request of such Holder or Holders; provided
that the Company shall have the right to postpone or withdraw any registration
effected pursuant to this Section 4.4 without obligation to any Holder."
2. Section 4.4(b) of the Second Amended and Restated Agreement is
hereby amended and restated in its entirety as follows:
"(b) In connection with any offering under this
Section 4.4 involving an underwriting, the Company shall not be required to
include any Registrable Shares in such underwriting unless the Holders thereof
accept the terms of the underwriting as agreed upon between the Company and the
underwriters selected by it, and then only in such quantity as will not, in the
opinion of the underwriters, jeopardize the success of the offering by the
Company; provided, that if in the opinion of the underwriters the inclusion of
any Registrable Shares in such underwriting would jeopardize the success of the
offering by the Company, the Company will not be required to include any
Registrable Shares in such underwriting. If in the opinion of the managing
underwriter the registration of all, or part of, the Registrable Shares which
the Holders have requested to be included would materially and adversely affect
such public offering, then the Company shall be required to include in the
underwriting only that number of Registrable Shares, if any, which the managing
underwriter believes may be sold without causing such adverse effect. If the
number of Registrable Shares to be included in the underwriting in accordance
with the foregoing is less than the total number of shares which the Holders of
Registrable Shares have requested to be included, then the Company may include
all securities proposed to be registered by the Company to be sold for its own
account and the Holders of Registrable Shares who have requested registration
shall participate, along with other holders of shares to be included pursuant to
other registration rights granted by the Company, in the underwriting as
follows: if after including in the Registration the securities proposed by the
Company to be sold for its own account, the number of shares proposed for
Registration by Holders pursuant to Section 4.4 must be limited in order to
avoid exceeding the managing underwriter's limit, the securities proposed by any
director or executive officer of the Company ("Key Management") to be sold for
his/her own account shall be reduced (including the elimination of all such
securities from the Registration, if necessary) such that such Registration does
not exceed the managing underwriter's limit. If after reducing the number of
securities proposed by any member of Key Management to be sold for his/her own
account to zero, it is necessary to limit the shares proposed for Registration
by other Holders who have requested Registration, the limitation on the number
of shares proposed for Registration by such other Holders shall be applied on a
pro rata basis based upon their total ownership of Registrable Shares and the
total ownership of registrable shares of Common Stock of the Company by such
other holders. If any Holder would thus be entitled to include more shares than
such Holder requested to be registered, the excess shall be allocated among
other requesting Holders pro rata based upon their total ownership of
Registrable Shares."
3 This First Amendment may be executed in any number of counterparts
with the same effect as if all signatory parties had signed the same document.
All counterparts shall be construed together and shall constitute one and the
same instrument.
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4. Except as amended by this First Amendment, the Second Amended and
Restated Agreement remains in full force and effect.
IN WITNESS WHEREOF, the undersigned have executed this First Amendment as
of the day and year written above.
COMPANY:
AIRNET COMMUNICATIONS CORPORATION
By: /s/ R. Xxx Xxxxxxxx, Xx.
Name: R. Xxx Xxxxxxxx, Xx.
Title: President and Chief Executive Officer
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[Shareholder Signature(s) on Next Page]
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Signature Page
First Amendment to Second Amended and Restated
Shareholder's and Registration Rights Agreement
SHAREHOLDER:
IF ENTITY:
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(Name of Entity)
By: -----------------------------
(Signature)
Name:
-----------------------
Title:
-----------------------
IF INDIVIDUAL(s):
------------------------------------
(Signature)
------------------------------------
(Print Name)
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(Signature)
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(Print Name)
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