EXHIBIT 10.68
MAC TELECOM STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT (the "Agreement") is made as of the 2nd day
of August, 2006, by and among Clearwire Europe S.a.r.l., a Luxembourg limited
liability company ("Purchaser") and the individuals and entities listed on
Exhibit A hereto (as to each a "Seller", and collectively, the "Sellers").
RECITALS:
A. Sellers, collectively, own Two Thousand Five Hundred Eighty-Four (2,584)
fully paid registered shares (the "Shares") of MAC Telecom SA, a "societe
anonyme" organized under the laws of Belgium (the "Company").
B. MAC Telecom Holdings SA, a "societe anonyme" organized under the laws of
Belgium ("MTH"), is the owner of Seven Thousand Four Hundred Forty-One (7,441)
fully paid registered shares of the Company (the "MTH Shares").
C. Purchaser is the owner of Seven Thousand Two Hundred Eighteen (7,218)
registered shares of the Company, which together with the Shares and the MTH
Shares constitutes all of the outstanding stock of the Company.
D. Purchaser and Xxxx Xxxxxx, Xxxxxxx xx Xxxxxx, Xxxxxxx du Chastel and
Xxxxxxx Xxxxxxxx (the "MTH Sellers") will enter into a Stock Purchase Agreement
(as the same may be amended, the "MTH Stock Purchase Agreement") on or about the
date hereof pursuant to which Purchaser will purchase from the MTH Sellers, and
the MTH Sellers will sell to Purchaser, all of their rights, title, and interest
in and to the outstanding stock of MTH. The entry into the MTH Stock Purchase
Agreement is a material inducement of Purchaser to enter into this Agreement.
E. Purchaser desires to purchase the Shares from Sellers, on the terms and
subject to the conditions set forth in this Agreement. Sellers desire to sell
the Shares to the Purchaser on such terms and conditions.
AGREEMENT:
NOW, THEREFORE, the parties hereto agree as follows:
Section 1. Definitions. In addition to the terms defined elsewhere in this
Agreement, including the recitals, the following terms, when used herein, shall
have the following meanings:
"Affiliate" shall have the meaning given by article 11 of the Belgian
Company Code.
"Clearwire Belgium" means Clearwire Belgium Sprl, a corporation organized
under the laws of Belgium.
"Clearwire Shareholder Agreement" means the shareholder agreement in the
form of Exhibit C hereto.
"Governmental Authority" means any nation or government, foreign or
domestic, any state or other political subdivision thereof, and any agency or
other entity exercising executive, legislative, judicial, regulatory or
administrative functions of government, including, without limitation, all
taxing authorities.
"Investment Agreement" means that certain Investment Agreement dated as of
December 7,2004, between, among others, the Company, Purchaser and Sellers.
"Law" or "Laws" means any statute, rule, common law, ordinance, regulation,
order, writ, judgment, injunction, decree, determination, or award enacted or
promulgated by a Governmental Authority.
"License" means the license for the 3.450 - .0475 / 3.550 - 3.575 MHz
frequencies held by the Company under license number INFRAPL2001\MODI-5\2006-01.
"Lien" means any interest, consensual or otherwise, in property securing a
monetary obligation owed to, or a claim by, a Person other than the owner of the
property, whether such interest is based on statute or contract, and including,
but not limited to, any security interest, lien or other beneficial interest
arising from a mortgage, recordation of abstract of judgment, deed of trust,
deed to secure debt, encumbrance, pledge, conditional sale, option, trust
(constructive or otherwise) or trust receipt or a lease, consignment or bailment
for security purposes.
"Person" means an individual, corporation, partnership, limited liability
company, unincorporated association, trust, joint venture or other organization
or entity, including a Governmental Authority.
"Shareholders Agreement" means that certain Shareholders Agreement dated as
of December 7, 2004, between, among others, the Company, MTH, Purchaser and
Sellers.
Section 2. Interpretation.
2.1 No provision of this Agreement shall be interpreted adversely
against a party solely because that party was responsible for drafting that
particular provision.
2.2 English language words used in this Agreement and, where
applicable, the French translation thereof, intend to describe Belgian legal
concepts only and the consequences of the use of those words in US law or any
other foreign law shall be disregarded.
2.3 This Agreement has been drawn up in the English language; in the
event of any discrepancy between the English text of this Agreement (or any
agreement resulting therefrom or relating thereto) and any translation thereof,
the English language version shall prevail; subject to Section 2.2 above, the
English language version shall also prevail for interpretation purposes.
2.4 References to any Belgian legal concept shall, in respect of any
jurisdiction other than Belgium, be deemed to include the concept which in that
jurisdiction most closely approximates the Belgian legal concept.
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2.5 When using the expressions "shall use its best efforts" or "shall
use its best endeavors" (or any similar expression or any derivation thereof) in
this Agreement, the parties intend to refer to the Belgian law concept of
"obligation de moyen".
2.6 When using the words "shall cause" or "shall procure that" (or any
similar expression or any derivation thereof), the parties intend to refer to
the Belgian law concept of "porte-fort".
2.7 All terms defined in this Agreement shall have the same meaning
regardless of whether they are used in the singular or plural number.
2.8 The words "include", "included" or "including" are used to
indicate that the matters listed are not a complete enumeration of all matters
covered.
Section 3. Terms of Purchase.
3.1 Purchase and Sale of Shares. On the terms and subject to the
conditions set forth in this Agreement, Sellers hereby agree to sell, assign,
transfer and convey to Purchaser, and Purchaser hereby agrees to acquire and
take assignment of, the Shares. The Shares shall be sold and transferred to the
Purchaser with all rights and obligations attached, including the right to
receive distribution of profits or liquidation proceeds for the current fiscal
year and the prior fiscal years to the extent not yet distributed on the date of
the signing hereof.
3.2 Purchase Price. In consideration for the sale to Purchaser by
Sellers of the Shares, Purchaser will pay Sellers the following: (i) Two Hundred
Thirty-Five Thousand Nine Hundred Ninety-Five Dollars (US$235,995); (ii) Three
Hundred Fifty-One Thousand Two Hundred Thirty-Six (351,236) shares of Restricted
Class A Common Stock (the "Clearwire Stock") of Clearwire Corporation, a
Delaware corporation registered with the Delaware State Register under
registration number 3720220 ("Clearwire"); and (iii) the Additional Payment, if
any, under Section 3.3 below. The cash referred to in (i) above, the Clearwire
Stock and the Additional Payment, if any, shall be allocated among the Sellers
in accordance with Exhibit B hereto. Purchaser shall make any payment in cash
(including the Additional Payment) by wire transfers of immediately available
funds into the respective Sellers' bank accounts set forth in Exhibit B or any
other account notified by the respective Seller to the Purchaser no later than
three Business Days before the payment is due.
3.3 Additional Payment. If and only if: (a) within two (2) years after
the Closing, Purchaser, its Affiliates or the Company shall close the sale (the
"License Sale") of all or substantially all of the stock or assets of the
Company (including the License) to any Person who is not an Affiliate of
Purchaser; and (b) the License Value (as defined below) on the date of the
License Sale exceeds the U.S. dollar equivalent of Ten Million Dollars
($10,000,000), then Purchaser shall pay to Sellers within thirty days of the
closing of the License Sale (or, within thirty days of the final determination,
in accordance with Section 3.3 of the MTH Stock Purchase Agreement, of the
License Value insofar that MTH Sellers have objected thereto) an amount in cash
equal to ten point eighteen percent (10.18%) of the amount, if any, by which the
License Value exceeds Ten Million Dollars ($10,000,000). For example, if the
License Value was Thirty Million Dollars ($30,000,000), then Purchaser would pay
to Sellers (allocated among the Sellers in
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accordance with Exhibit B hereto) two million thirty-six thousand Dollars
($2,036,000). No Additional Payment shall be due if the License Sale shall not
close within two years after Closing or if the amount allocated to the License
in the License Sale does not exceed Ten Million Dollars ($10,000,000). In
addition, no Additional Payment shall be due for the sale of any other asset,
including without limitation any other license, owned by the Company. As used
herein, "License Value" means the value accorded to the License in accordance
with the rules set out in the MTH Stock Purchase Agreement and consequently the
License Value as determined in accordance with the MTH Stock Purchase Agreement
shall be the License Value for purposes of this Agreement. Sellers expressly
acknowledge that their right to object to the determination of the License Value
can only be exercised through the MTH Sellers acting under Section 3.3 of the
MTH Stock Purchase Agreement. Sellers agree that this provides adequate
protection and that they shall be bound by the determination made thereunder.
3.4 Taxes; Fees. To the extent that the transfer of the Shares to the
Purchaser gives rise to sales tax liability or other transfer, purchase,
recordation or documentary tax or other fees (collectively, "Sales Taxes"),
Sellers shall pay such Sales Taxes to the appropriate tax authorities at the
Closing or at the time when such Sales Taxes are due and payable.
3.5 Closing. The (i) transfer of ownership of the Shares and (ii)
completion of the Sellers' and Purchaser's closing obligations contemplated by
this Agreement (the "Closing") will take place at the offices of Linklaters Xx
Xxxxx, 00 xxx Xxxxxxxxx, 0000 Xxxxxxxx on the date set by Purchaser and Sellers
within five (5) business days following the date on which the last condition in
Section 8 has been satisfied or waived, or at such other time or place as
Sellers and Purchaser may agree on, either in writing or orally (the "Closing
Date").
3.6 Share register. The Sellers hereby irrevocably appoint Xxxxxxx xx
Xxxxxx, acting individually, with power to substitute, as their attorney-in-fact
to record this transfer of the Shares in the Company's share register and to
take any other action and sign any other document as may be necessary or
desirable in order for such transfer of the Shares to be enforceable against the
Company and third parties. The Purchaser hereby irrevocably appoints each of Pia
Lavrysen and Xxxxxxx Xxxxxxxx, attorneys-at-law, 00 xxx Xxxxxxxxx, 0000
Xxxxxxxx, Xxxxxxx, acting jointly or individually, with power to substitute, as
their attorney-in-fact to record this transfer of the Shares in the Company's
share register and to take any other action and sign any other document as may
be necessary or desirable in order for such transfer of the Shares to be
enforceable against the Company and third parties. The Purchaser shall receive
share certificates certifying such recording in the share register.
3.7 Share transfer restrictions. The Purchaser, the Sellers, as well
as the Company and MTH, which both intervene and execute this Agreement for the
purposes of this Section, waive any rights and obligations they have in relation
to the transfer of Shares of the Company pursuant to articles 2 and 3 of the
Shareholders Agreement (to the extent applicable) and to articles 13 and 14 of
the articles of association of the Company.
Section 4. Representations and Warranties of Sellers. Each Seller as to
him, her or itself (but not as to any other Seller) hereby represents and
warrants to Purchaser that the following statements are true and correct as of
the date hereof and shall be true as of the Closing Date:
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4.1 Capacity of Seller. Each Seller has the full legal right and
capacity to enter into this Agreement and perform his, her or its obligations
hereunder. True, correct and complete copies of all organizing documents of any
Seller that is not an individual have been provided to Purchaser.
4.2 Authorization by Sellers; Enforceability. Each Seller has taken
all actions necessary for the execution, delivery and performance of this
Agreement by such Seller and the consummation of the transactions contemplated
hereby. This Agreement has been duly and validly executed and delivered by such
Seller. Assuming the due authorization, execution and delivery by Purchaser,
this Agreement constitutes a valid and binding obligation of such Seller
enforceable against such Seller in accordance with its terms, except to the
extent that enforceability may be limited by bankruptcy, reorganization,
insolvency or other laws affecting the enforcement of creditors' rights
generally or the availability of equitable remedies subject to the discretion of
the court.
4.3 Absence of Certain Conflicts. Neither the execution and delivery
of this Agreement nor the consummation of the transactions contemplated hereby
will (a) conflict with or result in a breach of any provision of the organizing
documents of any Seller that is not an individual; (b) require the payment or
the incurring of any obligation on the part of the Seller or result in a loss of
rights or default (or give rise to any right of termination, cancellation or
acceleration), with or without notice or lapse of time, under any of the
provisions of any contract, agreement or instrument to which such Seller is a
party or the Shares may be bound, (c) breach or otherwise constitute a default
under any agreement or undertaking binding on such Seller or the Shares or (d)
violate any judgment, decree, order, injunction, or any statute, law, regulation
or rule of any court or any federal, state, municipal or other domestic or
foreign Governmental Authority applicable to such Seller, the Shares or any of
its or their operations or property.
4.4 Title to Shares. Exhibit B sets forth the whole of such Seller's
shares or interest in the Company or in any subsidiary of the Company (and to
the extent Seller shall have any additional interest or shares in the Company,
the same shall be included as Shares and transferred to Purchaser at Closing
with no additional cost to Purchaser). Such Seller's Shares have been duly
authorized and validly issued and are fully paid and non-assessable. None of
such Seller's Shares was issued in violation of any applicable Law. Such Seller
has and shall convey to Purchaser good and marketable title to such Seller's
Shares. Such Seller's Shares are and shall be conveyed to Purchaser free and
clear of all Liens, charges, demands or adverse claims or other restrictions on
the exercise of any of the attributes of ownership. Such Seller has full voting
power over its Shares, subject to no proxy, shareholders' agreement, voting
trust or other agreement relating to the voting of any of the Shares other than
the Shareholders Agreement and the articles of association of the Company. As of
the Closing Date no Person will have any preemptive right to purchase such
Seller's Shares other than as set forth in the Shareholders Agreement and the
articles of association of the Company.
4.5 Litigation. There are no legal proceedings now in progress,
pending or, to such Seller's knowledge, threatened against such Seller which
could adversely affect the validity and enforceability of the transfer of such
Seller's Shares to Purchaser. Such Seller is not subject to any order, writ,
injunction or decree of any court or any Governmental Authority which could
adversely affect the validity and enforceability of the transfer of such
Seller's Shares to Purchaser.
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4.6 Broker's Fees. No Seller has any Liability or obligation to pay
any fees or commissions to any broker, finder or agent with respect to the
transactions contemplated by this Agreement.
4.7 Marital Status. Other than Xxxxxxxx Xxxxxx Xxxxxxxx-Xxxxx, Xxxxxx
Xxxxxxxxx-Xxxxxxx, Xxxxxxx Xxxx Xxxxxxxxx-Xxxxxxxx and Xxxxxxxx Xxxxxxxxx, none
of the Sellers who is not a legal entity is married under any civil law regime.
Section 5. Declarations Relating to Clearwire Stock. Each Seller as to him,
her or itself (but not as to any other Seller) hereby represents and warrants to
Purchaser that the following statements are true and correct as of the date
hereof and shall be true as of the Closing Date: The Clearwire Stock to be
received by each Seller is being acquired for investment for such Seller's own
account, not as a nominee or agent, and not with a view to the distribution of
any part thereof, and no such Seller has any present intention of selling,
granting any participation in, or otherwise distributing or transferring the
same. No Seller has any contract, undertaking, agreement or arrangement with any
Person to sell, transfer or grant participations to such person or to any third
Person, with respect to any of the Clearwire Stock.
5.2 Each Seller understands that no United States agency or any other
Governmental Authority has passed on or made any recommendation or endorsement
of the Clearwire Stock or the fairness or suitability of the investment in the
Clearwire Stock nor have such authorities passed upon or endorsed the merits of
the offering of the Clearwire Stock.
5.3 Each Seller is an "accredited investor" as that term is defined in
Rule 501 of Regulation D promulgated under the Securities Act of 1933, as
amended (the "Securities Act"). No Seller is a "U.S. person" as that term is
defined under Rule 902 of Regulation S promulgated under the Securities Act.
This Agreement has been executed by Sellers outside the "United States" (as
defined in Rule 902(l) of Regulation S). Sellers are acquiring the Shares in an
"offshore transaction" (as defined in Rule 902(h) of Regulation S). The Shares
were not offered to Sellers in the United States and at the time of execution of
this Agreement and the time of any offer to Sellers to purchase the Shares
hereunder, Sellers were physically outside of the United States.
5.4 Each Seller has received private placement memoranda from
Clearwire and each Seller believes he or she has received all the information he
or she considers necessary or appropriate for deciding whether to acquire the
Clearwire Stock pursuant to this Agreement. Each Seller further represents that
he or she has had an opportunity to ask questions and receive answers from
Clearwire regarding the terms and conditions of the acquisition of the Clearwire
Stock pursuant to this Agreement and the business, properties, prospects and
financial condition of the Company. Each Seller confirms that the private
placement memoranda and other non public information that have been furnished to
such Seller are subject to the confidentiality provision of Section 7.1 of the
Shareholders Agreement.
5.5 Each Seller has independently evaluated the merits of his/her/its
decision to acquire the Clearwire Stock pursuant to this Agreement, and each
Seller confirms that he/she/it has not relied on the advice of any other Person,
or any placement agent, consultant or legal counsel in making such decision.
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5.6 Each Seller has the financial and other ability to bear the
economic risk of his/her/its investment, and has such knowledge and experience
in financial and business matters that he/she/it is capable of evaluating the
merits and risks of the investment in the Clearwire Stock. Each Seller that is
an entity also represents it has not been organized for the purpose of acquiring
the Clearwire Stock.
5.7 Each Seller understands that: (i) the Clearwire Stock has not been
registered under the Securities Act or any state securities laws; (ii) each
Seller agrees that if he/she/it decides to offer, sell or otherwise transfer any
of the Clearwire Stock, such Clearwire Stock may be offered, sold or otherwise
transferred only: (A) pursuant to an effective registration statement under the
Securities Act; (B) to Clearwire; (C) outside the United States in accordance
with Rule 904 of Regulation S under the Securities Act and in compliance with
local laws; or (D) within the United States (1) in accordance with the exemption
from registration under the Securities Act provided by Rule 144 thereunder, if
available, and in compliance with any applicable state securities laws, and the
seller shall be required to furnish to Clearwire an opinion to such effect from
counsel of recognized standing reasonably satisfactory to Clearwire prior to
such offer, sale or transfer, or (2) in a transaction that does not require
registration under the Securities Act or applicable state securities laws, and
the Seller shall be required to furnish to Clearwire an opinion to such effect
from counsel of recognized standing reasonably satisfactory Clearwire prior to
such offer, sale or transfer.
5.8 Each Seller understands that the certificates evidencing the
Clearwire Stock may bear legends substantially similar to the following,
together with such other legends as may be required in the reasonable opinion of
counsel to Clearwire:
"THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES
ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND ACCORDINGLY, MAY NOT BE
OFFERED OR SOLD EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCE. BY ITS
ACQUISITION HEREOF, THE HOLDER (1) REPRESENTS THAT (A) IT IS NOT A U.S.
PERSON AND IS ACQUIRING THIS SECURITY IN AN OFFSHORE TRANSACTION IN
COMPLIANCE WITH REGULATION S ADOPTED UNDER THE SECURITIES ACT; (2) AGREES
THAT IT WILL NOT RESELL OR OTHERWISE TRANSFER THE SECURITY EVIDENCED
HEREBY, EXCEPT (A) TO THE ISSUER OR A SUBSIDIARY THEREOF; (B) TO A
QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A ADOPTED UNDER
THE SECURITIES ACT (IF AVAILABLE); (C) TO PERSONS OTHER THAN U.S. PERSONS
OUTSIDE THE UNITED STATES IN COMPLIANCE WITH REGULATION S UNDER THE
SECURITIES ACT; (D) PURSUANT TO THE EXEMPTION FROM REGISTRATION PROVIDED BY
RULE 144 ADOPTED UNDER THE SECURITIES ACT OR ANOTHER AVAILABLE EXEMPTION
UNDER THE SECURITIES ACT (IF AVAILABLE); OR (E) PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE SECURITIES ACT, AND (3) AGREES THAT IT
WILL, PRIOR TO ANY TRANSFER OF THIS
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SECURITY, FURNISH TO THE ISSUER OR ISSUER'S COUNSEL SUCH CERTIFICATIONS,
LEGAL OPINIONS OR OTHER INFORMATION AS MAY BE REQUIRED BY THE ISSUER TO
CONFIRM THAT SUCH TRANSFER IS BEING MADE PURSUANT TO AN EXEMPTION FROM, OR
IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT. AS USED HEREIN, THE TERMS "OFFSHORE TRANSACTION," "UNITED
STATES" AND "U.S. PERSON" HAVE THE MEANING GIVEN TO THEM BY REGULATION S
UNDER THE SECURITIES ACT. IN ANY CASE, THE HOLDER HEREOF WILL NOT, DIRECTLY
OR INDIRECTLY, ENGAGE IN ANY HEDGING TRANSACTION WITH REGARD TO THIS
SECURITY, EXCEPT AS PERMITTED BY THE SECURITIES ACT."
5.9 Each Seller has reviewed and approved the Clearwire Shareholder
Agreement and acknowledges that execution and delivery by such Seller of the
Clearwire Shareholder Agreement is a condition precedent to the issuance of any
Clearwire Stock to such Seller.
5.10 Sellers acknowledge that this Section 5 is for the benefit of
Purchaser and Clearwire.
Section 6. Representations and Warranties of Purchaser. Purchaser
represents and warrants to Sellers that the following statements are true and
correct as of the date hereof and shall be true as of the Closing Date:
6.1 Organization and Standing; Power and Authority. Purchaser is a
limited liability company duly organized, validly existing and in good standing
under the laws of Luxembourg. Purchaser has all requisite power and authority to
enter into, execute, deliver and perform this Agreement and to carry out the
transactions contemplated hereby.
6.2 Authorization; Enforceability. Purchaser has taken or caused to be
taken all actions necessary for the authorization, execution, delivery and
performance of this Agreement by Purchaser and the consummation of the
transactions contemplated hereby. This Agreement has been duly executed and
delivered by Purchaser. Assuming the due authorization, execution and delivery
by Sellers, this Agreement constitutes a valid and binding obligation of
Purchaser, enforceable against Purchaser in accordance with its terms, except to
the extent that enforceability may be limited by bankruptcy, reorganization,
insolvency or other laws affecting the enforcement of creditors' rights
generally or the availability of equitable remedies subject to the discretion of
the court.
6.3 Broker's Fees. Purchaser has no liability or obligation to pay any
fees or commissions to any broker, finder or agent with respect to the
transactions contemplated by this Agreement.
Section 7. Covenants.
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7.1 Sellers Affirmative Covenants. Between the date of this Agreement
and the Closing Date, except as otherwise consented to in writing by Purchaser
or as otherwise contemplated by this Agreement, Sellers will (as to matters
relating to the Shares):
(a) preserve the Shares;
(b) permit the Company to operate in the ordinary course of
business;
(c) obtain all third party approvals, if any, necessary to
consummate the transactions contemplated hereby; or
(d) comply with all Laws applicable to the conduct of (i) the
Seller as a shareholder of the Company, or (ii) the Company's business.
7.2 Sellers Negative Covenants. Between the date of this Agreement and
the Closing Date, except as consented to in writing by Purchaser or as otherwise
contemplated by this Agreement, Sellers will not, and will cause the Company not
to:
(a) take any action or omit to take any action that could
reasonably be expected to render inaccurate any representation or warranty of
Sellers contained in this Agreement (as if such representation or warranty was
made on each date from the date of this Agreement to the Closing Date);
(b) amend any of the Company's articles of association or
organizing documents;
(c) sell, lease, pledge, hypothecate, mortgage, encumber,
transfer, or otherwise dispose of or agree to sell, lease, pledge, hypothecate,
mortgage, encumber, transfer, license, or otherwise dispose of, or create any
Lien on, the Shares;
(d) commence any proceeding to merge, consolidate or liquidate or
dissolve, or obligate itself to do so; or
(e) enter into any contract, agreement, commitment, option, or
obligation which involves the Shares, or the sale, transfer, assignment thereof
or any rights therein, including without limitation the right to vote the
Shares.
7.3 Covenant to Satisfy Conditions. Purchaser and Sellers will use
their respective commercially reasonable efforts to cause the conditions set
forth in Section 8 to be satisfied.
7.4 "Market Stand-off" Agreement. If requested by Clearwire or an
underwriter of capital stock or other securities of Clearwire in connection with
Clearwire's initial public offering, each Seller agrees not to sell or otherwise
transfer or dispose of any Clearwire Stock or other securities of Clearwire held
by such Seller during the 180 day period, or such longer period as requested by
the underwriters, following any registration statement filed under the
Securities Act to register capital stock or other securities of Clearwire.
Sellers shall execute such agreements as shall be required by the underwriters.
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7.5 Shareholders Agreement. Pursuant to Section 3.3.2 of the
Shareholders Agreement, if Clearwire intends to offer shares of its common stock
for sale to the public in a Qualified IPO (as defined in the Shareholders
Agreement), each Seller has the option to exchange such Seller's Shares for
shares of Clearwire common stock and Clearwire has the option to compel such
exchange. Purchaser and Sellers agree that this Agreement is intended to fully
satisfy each party's obligations under Section 3.3.2 of the Shareholders
Agreement, and upon the Closing, neither Purchaser nor Sellers shall have any
rights or obligations under Section 3.3.2 of the Shareholders Agreement.
7.6 Allocation Schedule. Sellers direct that the purchase price be
allocated among the Sellers in the manner set forth in Exhibit B hereto. The
allocation may or may not be in proportion to such Seller's percentage ownership
interest in the Company, and the Sellers may or may not seek pro rata interests
in the cash and Clearwire Stock provided under this Agreement. The allocations
shall be matters solely determined by Sellers, and Sellers shall waive any claim
they may have against Purchaser in this respect and shall indemnify Purchaser
from all claims relating thereto.
7.7 Further Assurances. From time to time on or after the Closing
Date, Sellers and Purchaser will execute and deliver to each other all such
further assignments, endorsements and other documents as are reasonably
requested in order to complete the sale of the Shares to Purchaser, to enable
Purchaser to exercise full rights as the sole owner of the Shares and to
otherwise carry out the transactions contemplated by this Agreement. Without
limitation, to the extent Sellers (or any one of them) shall have ownership
interests or rights in the Company other than the Shares, such additional
interests shall be conveyed to Purchaser at Closing without additional
consideration from Purchaser.
Section 8. Conditions.
8.1 Conditions to Obligations of the Sellers. The obligation of the
Sellers to sell the Shares shall be subject to the satisfaction or waiver in
writing, on or before the Closing Date, of the following condition:
(a) On the Closing Date, the representations and warranties of
Purchaser set forth in Section 6 shall be accurate in all material respects with
the same effect as if made on the Closing Date, and Purchaser shall have
performed all obligations and complied in all material respects with all
covenants required to be performed or to be complied with by it on or prior to
the Closing Date under this Agreement.
8.2 Conditions to Obligations of Purchaser. The obligation of
Purchaser to purchase the Shares, pay the cash portion of the purchase-price as
set forth in Section 3.2(i) and deliver the Clearwire Stock as set forth in
Section 3.2(ii), is subject to the satisfaction or waiver in writing, on or
before the Closing Date, of the following conditions:
(a) On the Closing Date, the representations and warranties of
each Seller set forth in Section 4 and Section 5 hereof shall be accurate in all
material respects with the same effect as if made on the Closing Date, and each
Seller shall have performed all obligations and complied in all material
respects with all covenants required to be performed or to be complied
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with by him/her/it prior to the Closing Date under this Agreement. Without
limitation, Purchaser shall have no obligation to close the purchase of the
Shares unless Purchaser shall acquire the whole of the Shares.
(b) With respect to any Seller that is an entity, such Seller
shall have provided Purchaser full and satisfactory evidence that such Seller
has authorized the execution and delivery of this Agreement and the transactions
contemplated hereby.
(c) Sellers shall have obtained and delivered to Purchaser the
Consents as defined hereafter) as well as the declarations submitted by each of
Xxxxxxxx Xxxxxx Xxxxxxxx-Xxxxx, Xxxxxx Xxxxxxxxx-Xxxxxxx, Xxxxxxx Xxxx
Xxxxxxxxx-Xxxxxxxx and Xxxxxxxx Xxxxxxxxx, containing the unconditional and
irrevocable written consent of their respective spouses to the transfer of the
Shares owned respectively by each such Seller.
(d) On the Closing Date there shall not have been any Material
Adverse Change. "Material Adverse Change" shall mean any event, change,
circumstance or effect that has a material adverse effect on the operations,
financial condition, prospects, assets, or operations, of the Company taken as a
whole, including the continuing validity and effectiveness of the License.
(e) Each Seller shall, in form satisfactory to Purchaser, have
become bound to the Clearwire Shareholder Agreement.
(f) Purchaser and the MTH Sellers shall have entered into the MTH
Stock Purchase Agreement and all conditions to closing thereunder shall have
been met or waived.
8.3 Conditions to the Obligations of Purchaser and Sellers. The
obligation of each of the Sellers to sell the Shares and the Purchaser to
purchase the Shares, pay the cash portion of the purchase price as set forth in
Section 3.2(i) and deliver the Clearwire Stock as set forth in Section 3.2(ii),
shall be subject to the satisfaction or waiver in writing, on or before the
Closing Date, of the following conditions:
(a) If required for the consummation of the transactions
contemplated herein, all notices, filings and consents required to be made or
obtained prior to the Closing by either party or any of their respective
Affiliates with any Governmental Authority or any third party in connection with
the execution and delivery of this Agreement and the consummation of the
transactions contemplated by this Agreement (collectively, the "Consents") shall
have been made or obtained.
(b) None of the Sellers nor Purchaser shall be subject to any
order, decree, or injunction of a court of competent jurisdiction or
governmental agency and no statute, rule or regulation shall be enacted or
issued which prevents or significantly delays any of the transactions
contemplated by this Agreement, or would impose any limitation on the ability of
such Seller to sell the Shares or the ability of the Purchaser to effectively
exercise full rights of ownership in the Shares.
(c) The parties to the Shareholders Agreement shall have executed
and delivered the Termination of Shareholders Agreement in the form of Exhibit D
hereto.
11
(d) The parties to the Investment Agreement shall have executed
and delivered the Termination of Investment Agreement in the form of Exhibit E
hereto.
8.4 Waiver of Conditions. Either party may waive any condition set
forth in this Section 8 to such party's obligations under this Agreement. Except
as otherwise provided herein, the result of any such waiver shall be (a) the
elimination of the waived condition as a valid basis for the waiving party to
refuse to close the transactions contemplated by this Agreement, and (b) the
release of the other party from any claim by the waiving party for resulting
injuries and damages with respect to that waived condition. Any waivers made
under this Section shall not be effective unless in writing.
8.5 Obligations on Closing. (i) Sellers shall deliver or cause to be
delivered to Purchaser the certificates certifying the Shares' recording in the
share register of the Company; and such other instruments and documents as
Purchaser may reasonably require to vest in Purchaser all right, title and
interest of Sellers in and to the Shares, (ii) the share register of the Company
shall be amended pursuant to Section 3.6 hereof; (iii) Purchaser shall pay the
cash portion of the purchase price as set forth in Section 3.2(i) and deliver
the Clearwire Stock as set forth in Section 3.2(ii); and (iv) a board meeting of
the Company shall be held in order to acknowledge the resignation of WorldStar
Services Ltd. and Xxxxxxx Cat sprl as directors, officers or representatives of
the Company.
Section 9. Termination.
This Agreement may be terminated at any time prior to the Closing:
9.1 by the written agreement of all of the Sellers and Purchaser;
9.2 by either party if all of the conditions to such party's
obligation to close the transactions contemplated herein have not occurred on or
before the Closing Date; provided that if the conditions to closing have not
been satisfied or waived through the fault of a party, the party at fault shall
not have the right to terminate this Agreement pursuant to this Section 9.2;
9.3 by either Purchaser or Sellers if the Closing has not occurred on
or before the date that is ninety (90) days from the date of the execution of
this Agreement; provided that if the Closing has not occurred through the fault
of a party, the party at fault shall not have the right to terminate this
Agreement pursuant to this Section 9.3;
9.4 by either Purchaser or Sellers if the consummation of the
transactions contemplated hereby shall violate any non-appealable final order,
decree or judgment of any Governmental Authority having competent jurisdiction;
or
9.5 by Purchaser, if any material adverse restriction or condition is
placed on the License or the assignment of the Shares.
12
Section 10. Notice of Termination.
In the event of termination of this Agreement and abandonment of the
transactions contemplated hereby, written notice thereof shall forthwith be
given by the terminating party to the other parties and this Agreement shall
terminate without further action by any of the parties hereto.
Section 11. Survival; Indemnification.
11.1 Survival of Representations and Warranties. The parties hereto
hereby agree that the representations, warranties and indemnification
obligations contained in this Agreement or in any certificate, document or
instrument delivered in connection herewith, shall survive the execution and
delivery of this Agreement, and the Closing hereunder provided that all
representations and warranties shall terminate and expire (unless notice of
claim has been made prior to that time) two (2) years after the Closing Date
other than those representations set forth in Sections 4.2 and 44 and Section 5
which shall survive until the end of the sixty day period following the
expiration of the applicable statute of limitations.
11.2 Seller Indemnification. Subject to the provisions of this Section
11, each Seller hereby agrees to indemnify and hold the Purchaser and its
Affiliates and their respective directors, officers, employees, shareholders,
members, managers, agents, successors and assigns (collectively, the "Purchaser
Indemnified Parties") harmless from and against:
(a) any and all losses, liabilities, assessments, penalties,
obligations, damages, costs and expenses whatsoever, including without
limitation reasonable attorneys' fees and other professionals' fees and
disbursements ("Losses") based upon, attributable to or resulting from the
breach of any representation or warranty of such Seller set forth in Section 4
and Section 5 hereof or of any representation or warranty contained in any
certificate delivered by or on behalf of such Seller pursuant to this Agreement;
and
(b) any and all Losses based upon, attributable to or resulting
from the breach of any covenant or other agreement on the part of such Seller
under this Agreement.
The obligations of each of the Sellers under this Section 11.2 are several
and not joint.
11.3 Purchaser Indemnification. Subject to the provisions of this
Section 11, Purchaser hereby agrees to indemnify and hold Sellers and their
respective Affiliates, directors, officers, employees, shareholders, members,
managers, agents, successors and assigns (the "Seller Indemnified Parties")
harmless from and against:
(a) any and all Losses based upon, attributable to or resulting
from the breach of any representation or warranty of Purchaser set forth in
Section 6 hereof, or of any representation or warranty contained in any
certificate delivered by or on behalf of Purchaser pursuant to this Agreement;
and
(b) any and all Losses based upon, attributable to or resulting
from the breach of any covenant or other agreement on the part of Purchaser
under this Agreement.
13
11.4 Indemnification Procedures.
(a) In the event that any liabilities, obligations, claims,
actions, suits, proceedings, investigations or judgments ("Claims") shall be
asserted by any Person in respect of which payment may be sought under Section
11 hereof, the indemnified party shall reasonably and promptly (and, in any
event, within the survival period set forth in Section 11.1 hereof) cause
written notice of the assertion of any Claim of which it has knowledge which is
covered by this indemnity to be forwarded to the indemnifying party. The
indemnifying party shall have the right, at its sole option and expense, to be
represented by counsel of its choice, which must be reasonably satisfactory to
the indemnified party, and to defend against, negotiate, settle or otherwise
deal with any Claim which relates to any Losses indemnified against hereunder.
If the indemnifying party elects to defend against, negotiate, settle or
otherwise deal with any Claim which relates to any Losses indemnified against
hereunder, it shall within ten (10) days (or sooner, if the nature of the Claim
so requires) notify the indemnified party of its intent to do so. If the
indemnifying party elects not to defend against, negotiate, settle or otherwise
deal with any Claim which relates to any Losses indemnified against hereunder,
fails to notify the indemnified party of its election as herein provided or
contests its obligation to indemnify the indemnified party for such Losses under
this Agreement, the indemnified party may defend against, negotiate, settle or
otherwise deal with such Claim. If the indemnified party defends any Claim, then
the indemnifying party shall reimburse the indemnified party for the reasonable
expenses of defending such Claim. If the indemnifying party shall assume the
defense of any Claim, the indemnified party may participate, at his or its own
expense, in the defense of such Claim; provided, however, that such indemnified
party shall be entitled to participate in any such defense with separate counsel
at the expense of the indemnifying party if, (i) so requested by the
indemnifying party to participate or (ii) in the reasonable opinion of outside
counsel to the indemnified party, a conflict or potential conflict exists
between the indemnified party and the indemnifying party that would make such
separate representation advisable; and provided, further, that the indemnifying
party shall not be required to pay for more than one such counsel for all
indemnified parties in connection with any Claim and only for reasonable legal
fees. The parties hereto agree to cooperate fully with each other in connection
with the defense, negotiation or settlement of any such Claim.
(b) After any final judgment or award shall have been rendered by
a court, arbitration board or administrative agency of competent jurisdiction
and the expiration of the time in which to appeal therefrom, or a settlement
shall have been consummated, or the indemnified party and the indemnifying party
shall have arrived at a mutually binding agreement with respect to a Claim
hereunder, the indemnified party shall forward to the indemnifying party notice
of any sums due and owing by the indemnifying party pursuant to this Agreement
with respect to such matter and the indemnifying party shall pay the sums due
within 15 calendar days following such notice.
(c) The failure of the indemnified party to give reasonably
prompt notice of any Claim shall not release, waive or otherwise affect the
indemnifying party's obligations with respect thereto except to the extent that
the indemnifying party can demonstrate actual loss and prejudice as a result of
such failure.
14
11.5 Non-Exclusive Remedy. The remedies hereunder are nonexclusive and
the parties shall have all rights at law and equity including rights of setoff.
11.6 Nature of Payments to the Purchaser. Any amount paid by a Seller
to the Purchaser under this Section 11 shall constitute a reduction in the
purchase price for such Seller.
Section 12. Release.
12.1 Release. Effective at Closing, and without further action by any
party hereto, except as otherwise provided in Section 11 above, each Seller (as
to each a "Releasing Party") hereby fully and forever releases and discharges
Purchaser, Clearwire Belgium, Clearwire, the Company and each of its or their
respective agents, principals, shareholders, members, subsidiaries, parents,
successors, and assigns from any damages, suits, claims, debts, demands,
assessments, obligations, liabilities, attorneys' fees, costs, expenses, rights
of action and causes of action, of any nature, whatsoever, known or unknown,
suspected or unsuspected, fixed or contingent, accrued or unaccrued, which such
Releasing Party now has or may hereafter have, by reason of any matter, cause or
thing whatsoever from the beginning of time to the Closing Date against
Purchaser, except this release shall not apply to the obligations of Purchaser
under this Agreement.
12.2 Other Terms. Each of the Releasing Parties: (a) further agrees
never to commence, aid or participate in (except to the extent required by order
or legal process issued by a court or governmental agency of competent
jurisdiction) any legal action or other proceeding based in whole or in part
upon Section 12.1 above; (b) agrees that this waiver and release is an essential
and material term of this Agreement and that the agreements in this paragraph
are intended to be in full satisfaction of any alleged injuries or damages in
connection with the released matters; (c) represents and warrants that it has
not purported to convey, transfer or assign any right, title or interest in any
released matter to any other person or entity and that the foregoing constitutes
a full and complete release of the released matters; (d) understands that this
release shall apply to all unknown or unanticipated results of the transactions
and occurrences described above, as well as those known and anticipated; and (e)
has consulted with legal counsel prior to signing this release, or had an
opportunity to obtain such counsel and knowingly chose not to do so, and
executes such release voluntarily, with the intention of fully and finally
extinguishing all released matters.
Section 13. Miscellaneous.
13.1 Notices. All notices required or permitted to be given under this
Agreement shall be in writing. Notices may be served by certified or registered
mail, postage paid with return receipt requested; by private courier, prepaid;
or personally. Mailed notices shall be deemed delivered five (5) days after
mailing, properly addressed. Couriered notices shall be deemed delivered on the
date that the courier warrants that delivery will occur. Personal delivery shall
be effective when accomplished. Unless a party changes its address by giving
notice to the other party as provided herein, notices shall be delivered to the
parties at the addresses set forth on the signature page of this Agreement.
13.2 Appointment of Sellers' Representative. The Sellers hereby
irrevocably appoint Xx Xxxxxxx xx Xxxxxx, who hereby accepts this appointment,
as their attorney-in-fact ("mandataire") to give and receive all notices, to
give all consents, to settle any dispute, and to
15
exercise the rights and fulfill all obligations of the Sellers in all matters
relating to any breach of representations or any breach of any undertakings
under this Agreement. Any decision of the said attorney-in-fact shall be binding
upon the Sellers. It is agreed that the "Sellers" shall be construed as meaning
the "representative of the Sellers" for any notice to be received under this
Agreement. In the event that Xx Xxxxxxx xx Xxxxxx should die or for any reason
become incapable of fulfilling his duties as attorney-in-fact of the Sellers
under this Agreement, the Sellers agree to appoint another attorney-in-fact with
the same powers as provided herein within thirty days of such an event and to
promptly give notice thereof to the Purchaser.
13.3 Section Headings. The section headings in this Agreement are for
convenience only; they do not give full notice of the terms of any portion of
this Agreement and are not relevant to the interpretation of any provision of
this Agreement.
13.4 Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of Belgium.
13.5 Arbitration. All disputes arising out of or in connection with
this Agreement other than in connection with the determination of the License
Value shall be submitted to binding arbitration under the Rules of Conciliation
and Arbitration of the International Chamber of Commerce (the "ICC Rules"). Any
such arbitration shall be conducted in Brussels, Belgium by a panel of three
arbitrators, comprised of one arbitrator appointed by the Purchaser and one
arbitrator appointed by the Sellers' representative appointed in accordance with
Section 13.2 on behalf of the Seller or Sellers implicated in the dispute and
one neutral arbitrator appointed in accordance with ICC Rules.
13.6 Severability. Any provision of this Agreement that is deemed
invalid or unenforceable shall be ineffective to the extent of such invalidity
or unenforceability, without rendering invalid or unenforceable the remaining
provisions of this Agreement.
13.7 Integration; Amendment. This Agreement constitutes the entire
agreement of the parties relating to the subject matter of this Agreement. There
are no promises, terms, conditions, obligations, or warranties other than those
contained in this Agreement. This Agreement supersedes all prior communications,
representations, or agreements, verbal or written, among the parties relating to
the subject matter of this Agreement. This Agreement may not be amended except
in writing executed by the parties.
13.8 Waiver. No provision of this Agreement shall be waived unless the
waiver is in writing signed by the waiving party. No failure by any party to
insist upon the strict performance of any provision of this Agreement, or to
exercise any right or remedy consequent upon a breach thereof, shall constitute
a waiver of any such breach, of such provision or of any other provision. No
waiver of any provision of this Agreement shall be deemed a waiver of any other
provision of this Agreement or a waiver of such provision with respect to any
subsequent breach, unless expressly provided in writing.
13.9 Attorneys' Fees. Each party shall bear its own costs, fees and
expenses, including consultant, accounting and attorneys' fees, incurred in
connection with this Agreement and the transactions contemplated hereby. If any
suit or action arising out of or related to this
16
Agreement is brought by any party, the prevailing party or parties shall be
entitled to recover the costs and fees including without limitation reasonable
attorneys' fees to the extent permitted by applicable law, the fees and costs of
experts and consultants, copying, courier and telecommunication costs incurred
by such party or parties in such suit or action, including without limitation
any post-trial or appellate proceeding, or in the collection or enforcement of
any judgment or award entered or made in such suit or action.
13.10 Continuing Agreement; Binding Effect. This Agreement shall bind
and inure to the benefit of, and be enforceable by, the parties and their
respective successors, heirs, and permitted assigns.
13.11 Assignment. Neither party may assign this Agreement, in whole or
in part, without the express, written consent of the other parties.
13.12 No Third-Party Beneficiary Rights. No Person not a party to this
Agreement is an intended beneficiary of this Agreement, and no Person not a
party to this Agreement shall have any right to enforce any term of this
Agreement.
13.13 Counterparts. This Agreement may be executed in any number of
counterparts, all of which when taken together shall constitute one agreement
binding on all parties, notwithstanding that all parties are not signatories to
the same counterpart.
13.14 Further Assurances. Each party agrees, at the request of the
other party, at any time and from time to time after the date of this Agreement,
promptly to execute and deliver all such further documents, and promptly to take
and forbear from all such action, as may be reasonably necessary or appropriate
in order to more effectively confirm or carry out the provisions of this
Agreement.
13.15 Facsimile Signatures. This Agreement may be executed by
facsimile signatures, each of which shall be deemed an original and shall be
binding upon each of the undersigned as if signed in the original.
[SIGNATURE PAGES FOLLOW]
17
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first set forth above.
SELLERS:
/s/ Xxxxxxx xx Xxxxxx
----------------------------------------
Xxxxxxxx XXXXXXXX, represented for the
purposes of this agreement by Xxxxxxx xx
Xxxxxx, attorney-in-fact
/s/ Xxxxxxx xx Xxxxxx
----------------------------------------
Xxxxxx XXXXXXXXX-XXXXXXXX, represented
for the purposes of this agreement by
Xxxxxxx xx Xxxxxx, attorney-in-fact
/s/ Xxxxxxx xx Xxxxxx
----------------------------------------
Xxxxxxx Xxxx XXXXXXXXX-XXXXXXXX,
represented for the purposes of this
agreement by Xxxxxxx xx Xxxxxx,
attorney-in-fact
/s/ Xxxxxxx xx Xxxxxx
----------------------------------------
Baltisches Haus Limited, represented for
the purposes of this agreement by
Xxxxxxx xx Xxxxxx, attorney-in-fact
/s/ Xxxxxxx xx Xxxxxx
----------------------------------------
Jacques du CHASTEL, represented for the
purposes of this agreement by Xxxxxxx xx
Xxxxxx, attorney-in-fact
/s/ Xxxxxxx xx Xxxxxx
----------------------------------------
Moncheur & Cie, represented for the
purposes of this agreement by Xxxxxxx xx
Xxxxxx, attorney-in-fact
18
/s/ Xxxxxxx xx Xxxxxx
----------------------------------------
Xxxxxxxx Xxxxxx XXXXXXXX-XXXXX,
represented for the purposes of this
agreement by Xxxxxxx xx Xxxxxx,
attorney-in-fact
/s/ Xxxxxxx xx Xxxxxx
----------------------------------------
Aberdeen Capital Limited, represented
for the purposes of this agreement by
Xxxxxxx xx Xxxxxx, attorney-in-fact
/s/ Xxxxxxx xx Xxxxxx
----------------------------------------
Herve Xxxxxx Xxxxxxx XXXXXXXXX,
represented for the purposes of this
agreement by Xxxxxxx xx Xxxxxx,
attorney-in-fact
PURCHASER:
Clearwire Europe S.a x.x.
Represented for the purposes of this
agreement by:
/s/ Xxxx Xxxxx
----------------------------------------
Name: Xxxx Xxxxx
Title: Attorney-in-fact
Address:
Clearwire Europe S.a x.x.
0000 Xxxx Xxxxxxxxxx Xxxx. Xxxxx 000
Xxxxxxxx, XX 00000
Attention: Vice President, Legal
Affairs
Facsimile: (000) 000-0000
19
INTERVENING PARTIES:
for the purposes of Section 3.7
MAC Telecom Holdings SA
Represented for the purposes of this
waiver by two directors:
/s/ Xxxx Xxxxxx
----------------------------------------
Name: Xxxxxxx Cat SPRL, represented by
Xxxx Xxxxxx
Title: Director
/s/ Xxxxxxx xx Xxxxxx
----------------------------------------
Name: Xxxxxxx xx Xxxxxx
Title: Director
MAC Telecom SA
Represented for the purposes of this
waiver by its managing director:
/s/ Xxxx Xxxxxx
----------------------------------------
Name: Xxxxxxx Cat SPRL, represented by
Xxxx Xxxxxx
Title: Managing director
Xxxxxxx xx Xxxxxx
For the purpose of the approval of
Section 13.2 and the acceptance of his
appointment thereunder
/s/ Xxxxxxx xx Xxxxxx
----------------------------------------
Xxxxxxx xx Xxxxxx
20
LIST OF EXHIBITS:
Exhibits:
Exhibit A: List of Sellers
Exhibit B: Allocation
Exhibit C: Clearwire Shareholder Agreement
Exhibit D: Termination of MAC Shareholders Agreement
Exhibit E: Termination of Investment Agreement
21
EXHIBIT A
LIST OF SELLERS
Baltisches Haus Ltd
Xxxxxx'x Xxxxx
Xxxx Xxxxxx
Xxxxxxx
Xxxx xx Xxx
Xxxxxx Xxxxxxx
Aberdeen Capital Ltd
X.X. Xxx 0000
Xxxx Xxxx - Xxxxxxx
Xxxxxxx Xxxxxx Xxxxxxx
Xxxxxxxx Xxxxxx Xxxxxxxx-Xxxxx
Maybanks
Rudgwick
Nr Horsham
RH12 3AA West Sussex
Great Britain
Jacques du Chastel
0 Xxxxxxxxx Xxxx
XX00 0XX Xxxxxx
Great Britain
Moncheur & Cie
Rue de la Xxxxxxxxxx 00
0000 Xxxxxx
Xxxxxxxxxxx
Xxxxxxx Xxxx Xxxxxxxxx-Xxxxxxxx
Wayerburg 26
2031 Eggendorf
Austria
Xxxxxxxx Xxxxxxxx
Xxxxxxxxx 00
0000 Xxxxxx
Xxxxxxx
Xxxxxx Xxxxxxxxx-Xxxxxxxx
Xxxxxxxxx 00
0000 Xxxxxxxxx
Xxxxxxx
Xxxxx Xxxxxxxxx
Xxx xx Xxxxxxx Xxxxxxx 00
00000 Xxxxxxx
Xxxxxx
1
EXHIBIT B
ALLOCATION
%OF
# MAC ADDITIONAL PURCHASE
NAME SHARES PAYMENT PRICE ($) CLEARWIRE STOCK BANK ACCOUNT
---- ------ ---------- --------- --------------- ------------
Baltisches Haus Ltd 1,237 52.66 -- 185,088 --
Aberdeen Capital 355 12.09 70,823 42,494 Citibank NA, 000 Xxxx Xxxxxx, Xxx Xxxx, X.X. 00000 Swift
Ltd code:
XXXXXX00
Account number: 00000000 ABA number: 021 000 089
Beneficiary: Xxxxxxxxxx Xxxx, Xxxxx xxx Xxxxxxxxxx 00,
XX-0000 Xxxxx (Swift code: XXXXXXXXXXX)
Sub Acc Name: Aberdeen Capital Limited
Sub Acc No: 201753/01
Xxxxxxxx Xxxxxx 355 15.13 -- 53,117 --
Xxxxxxxx-Xxxxx
Jacques du Chastel 195 6.66 38,903 23,342 IBAN XX0000000000 0000
BIC XXXXXXXX
Moncheur & Cie 145 4.95 28,928 17,357 IBAN XX00 0000 0000 0000 0000 0
BIC: XXXXXXXX
Xxxxxxx Xxxx 102 2.77 37,000 9,712 IBAN XX00 0000 0000 0000 0000
Schonborn- BIC XXXXXXXX
Xxxxxxxx
Xxxxxxxx Xxxxxxxx 102 2.77 37,000 9,712 IBAN or SWIFT XX000000000000000000
Xxxxxx Xxxxxxxxx- 87 2.97 17,356 10,414 IBAN XX00 0000 0000 0000 0000
Xxxxxxxx BIC XXXXXXXX
Xxxxx Xxxxxxxxx 6 0.00 5,985 0 IBAN XX00000000000000
Swift code: XXXXXXXX
----- ------ ------- -------
TOTAL 2,584 100.00 235,995 351,236
===== ====== ======= =======
2
EXHIBIT B
SPA
% % % of
MAC MAC fully total total
shares shares diluted grant excess
------ ------ ------- ----- ------
MTH MTH shares % in MTH 7,441 29.31
Axel 3,295 13.008 8.75 3.46 12.37
Nicolas 7,295 28.800 22.85 9.02 32.31
Xxxxxxx 9,548 37.694 25.34 10.01 35.83
Xxxxxxx 5,192 20.497 13.78 5.44 19.49
25,330 100.000 70.72 100.00
Clearwire Europe 7,218
Clearwire Europe FD 15,361 60.51
Minority shareholders 2,584 10.18
Baltisches Haus 1,237 15.42 6.09 52.66
Aberdeen Capital 355 3.54 1.40 12.09
Xxxxxxxx Xxxxxx Xxxxxxxx-Xxxxx 355 4.43 1.75 15.13
Xxxxxxx xx Xxxxxxx 000 1.95 0.77 6.66
Moncheur & Cie 145 1.45 0.57 4.95
Xxxxxxx Xxxx Xxxxxxxxx-Xxxxxxxx 102 0.81 0.32 2.77
Xxxxxxxx Xxxxxxxx 102 0.81 0.32 2.77
Xxxxxx Xxxxxxxxx-Xxxxxxxx 87 0.87 0.34 2.97
Xxxxx Xxxxxxxxx 6 0 0.00 0.00
29.28 100.00
TOTAL MAC SHARES 17,243 2,584 100.00 39.49
Total MAC securities 25,386
Fully diluted MAC shares
EXHIBIT C(I)
JOINDER IN STOCKHOLDERS AGREEMENT
This Joinder in Stockholders Agreement ("Joinder") is made and entered into
this ___ day of ________, 2006, by and between Clearwire Corporation, a Delaware
corporation (the "Company"), and the party whose signature appears below (the
"Joining Party").
RECITALS:
WHEREAS, the Joining Party has acquired or intends to acquire shares of capital
stock of the Company; and
WHEREAS, pursuant to Section 13.09 of that certain Amended and Restated
Stockholders Agreement, between the Company and its stockholders, dated as of
March 16, 2004 (the "Stockholders Agreement"), the Joining Party may become a
party to the Stockholders Agreement by execution of an instrument such as this
Joinder.
NOW, THEREFORE, the Joining Party agrees as follows:
1. JOINDER
By execution of this Joinder by the Joining Party and acceptance hereof by
the Company, the Joining Party is and agrees to become a party to, subject to
all the conditions, restrictions, obligations and duties of a Stockholder of the
Company under the Stockholders Agreement, including the restrictions on transfer
of the shares acquired from the Company and the requirement that the Joining
Party vote its shares in accordance with the terms thereof.
2. AGREEMENT TO BE BOUND BY AGREEMENT
This Joinder 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.
3. COUNTERPARTS
This Joinder may be executed in any number of counterparts, each of which
shall be an original, but all of which together shall constitute one instrument.
3
COMPANY: JOINING PARTY:
By: By:
--------------------------------- ------------------------------------
Name: Name:
------------------------------- ----------------------------------
Title: Title:
------------------------------ ---------------------------------
Date: Date:
------------------------------- ----------------------------------
4
EXHIBIT C(II)
CLEARWIRE SHAREHOLDERS AGREEMENT
5
CONFIDENTIAL
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
5
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.
8
(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.
9
(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
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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 arc 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:
------------------------------------
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
STOCKHOLDERS: [STOCKHOLDER SIGNATURES]
By:
------------------------------------
Its:
-----------------------------------
Address:
-------------------------------
-------------------------------
-------------------------------
SCHEDULE A
To the Stockholders Agreement of
Clearwire Corporation
LIST OF STOCKHOLDERS
CLASS A CLASS B
COMMON COMMON
NAME STOCK STOCK WARRANTS OPTIONS
---- ------- ------- -------- -------
[ST0CKHOLDERS]
EXHIBIT A
To the Amended and Restated Stockholders Agreement of
Clearwire Corporation
JOINDER
In consideration of the permitted issuance, sale, pledge, or other transfer
to the undersigned of Stock in the Company, the undersigned hereby consents and
agrees to become a party to and be bound by the Amended and Restated
Stockholders Agreement dated as of the __ day of March, 2004, as amended,
receipt of a copy of which is hereby acknowledged, as fully as if the
undersigned were one of its original parties, and all Stock owned by the
undersigned shall be held in accordance with and restricted by the terms of such
Amended and Restated Stockholders Agreement.
Dated:
-------------------------
Name of Stockholder:
-------------------
Sign Name:
-----------------------------
Print Name:
----------------------------
Address:
-------------------------------
-------------------------------
-------------------------------
SSN/EIN:
-------------------------------
Approved by the Company:
COMPANY: CLEARWIRE CORPORATION
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Dated:
---------------------------------
EXHIBIT D
TERMINATION OF SHAREHOLDERS AGREEMENT RELATING TO MAC TELECOM SA
The undersigned hereby terminate and waive all rights (other than in
respect of Clause 7.1 Confidentiality) under the Shareholders Agreement dated
December 7, 2004 relating to MAC Telecom SA, a 'societe anonyme' organized under
the laws of Belgium, effective this __th day of __________, 2006.
MAC TELECOM SA
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
MAC TELECOM HOLDINGS SA
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
CLEARWIRE EUROPE S.A X.X.
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
----------------------------------------
Xxxx XXXXXX
6
----------------------------------------
Xxxxxxx xx XXXXXX
----------------------------------------
Nicolas du CHASTEL
----------------------------------------
Xxxxxxx XXXXXXXX
----------------------------------------
Xxxxxxxx XXXXXXXX
----------------------------------------
Xxxxxx XXXXXXXXX-XXXXXXXX
----------------------------------------
Xxxxxxx Xxxx XXXXXXXXX-XXXXXXXX
BALTISCHES HAUS LIMITED
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
----------------------------------------
Xxxxxxx xx XXXXXXX
0
XXXXXXXX & CIE.
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
----------------------------------------
Xxxxxxxx Xxxxxx XXXXXXXX-XXXXX
ABERDEEN CAPITAL LIMITED
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
----------------------------------------
Herve Xxxxxx Xxxxxxx
XXXXXXXXX
8
EXHIBIT E
TERMINATION OF INVESTMENT AGREEMENT
This TERMINATION OF INVESTMENT AGREEMENT (this "Agreement"), dated as of
__________, 2006 is made by and between Clearwire Europe S.a x.x., a Luxembourg
limited liability company (the "Company"), MAC Telecom SA, a 'societe anonyme'
organized under the laws of Belgium ("MAC Telecom"), MAC Telecom Holdings SA, a
'societe anonyme' organized under the laws of Belgium ("MTH"), Xxxxxxx Xxxxxxxx,
Nicolas du Chastel, Xxxxxxx xx Xxxxxx and Xxxx Xxxxxx (Xxxxxxx Xxxxxxxx, Xxxxxxx
du Chastel, Xxxxxxx xx Xxxxxx and Xxxx Xxxxxx together the "MTH Sellers") and
the other individuals and entities listed on the signature pages hereto (as to
each a "Seller" and together the "Sellers"). The Company, MAC Telecom, MTH, the
MTH Sellers and Sellers may each be referred to herein as a "Party" and together
as the "Parties."
WHEREAS, among others, the Company, MTH, MAC Telecom, the MTH Sellers and
Sellers are parties to that certain Investment Agreement, dated as of December
7, 2004 (the "Investment Agreement") pursuant to which the Company agreed to
make certain investments in MAC Telecom;
WHEREAS, the Sellers and the Company have entered into the MAC Telecom Stock
Purchase Agreement dated __________, 2006 (the "Stock Purchase Agreement"),
pursuant to which Sellers have agreed, among other things, to sell all of their
right title and interest in and to the shares of MAC Telecom to the Company;
WHEREAS, the Company desires to purchase all of the shares of MAC Telecom held
by Sellers from Sellers;
WHEREAS, pursuant to Section 8.3(d) of the Stock Purchase Agreement, Sellers
have agreed to enter into this Agreement; and
WHEREAS, entry into this Agreement is a material inducement to the Company to
enter into the Stock Purchase Agreement.
NOW, THEREFORE, in consideration of the promises and the mutual covenants,
conditions, and agreements hereinafter set forth, the Parties agree as follows:
1. Mutual Release of Claims. Effective as of the date of the closing of the
Stock Purchase Agreement (the "Closing"), and subject thereto, each of the
Company, MTH, MAC Telecom, the MTH Sellers and Sellers, for themselves and
each of their respective subsidiaries, and their respective predecessors,
parents, subsidiaries, divisions, related or affiliated companies,
officers, directors, shareholders, members, partners, employees, heirs,
successors, assigns, representatives, agents and counsel, hereby releases,
dismisses and forever discharges the other Party and each of its respective
subsidiaries, and their respective predecessors, parents, subsidiaries,
divisions, related or affiliated companies, officers, directors,
shareholders, members, partners, employees, heirs, successors, assigns,
representatives, agents and counsel from any and all claims (including
claims for attorneys' fees), demands, damages, suits, proceedings, actions,
arbitrations and/or causes of action of any kind and every description,
whether known or unknown, arising from or relating to any fact or matter on
or prior to the Closing relating to the Investment
9
Agreement.
2. Consent to Termination of the Investment Agreement. Effective as of the
Closing, and subject thereto, the Parties hereby consent to the termination
of the Investment Agreement. From and after the Closing the Investment
Agreement shall be null and void and have no further force or effect and,
as of the Closing, none of the Parties shall have any further obligations
thereunder.
3. Entire Agreement. This Agreement constitutes the entire agreement of the
Parties relating to the subject matter of this Agreement. There are no
promises, terms, conditions, obligations, or warranties other than those
contained in this Agreement. This Agreement supersedes all prior
communications, representations, or agreements, verbal or written, among
the Parties relating to the subject matter of this Agreement. This
Agreement may not be amended except in writing executed by the Parties.
4. Miscellaneous. This Agreement (a) shall be governed by and in accordance
with the internal laws of Belgium, without regard to the principles of
conflicts of law thereof; (b) shall be binding upon and inure to the
benefit of the Parties hereto and their respective successors and permitted
assigns; and (c) may be executed and delivered (including by facsimile
transaction) in one or more counterparts, each of which shall be deemed an
original, but all of which together shall constitute one and the same
instrument.
[The remainder of this page is intentionally left blank. The signature page
follows.]
10
IN WITNESS WHEREOF, the undersigned have caused this Agreement to be duly
executed and delivered as of the date first above written.
CLEARWIRE EUROPE SARL
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
MAC TELECOM SA
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
MAC TELECOM HOLDINGS SA
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
----------------------------------------
Xxxxxxx XXXXXXXX
----------------------------------------
Nicolas DU CHASTEL
----------------------------------------
Xxxxxxx XX XXXXXX
----------------------------------------
Xxxx XXXXXX
----------------------------------------
Xxxxxxxx XXXXXXXX
11
----------------------------------------
Xxxxxx XXXXXXXXX-XXXXXXXX
----------------------------------------
Xxxxxxx Xxxx XXXXXXXXX-XXXXXXXX
BALTISCHES HAUS LIMITED
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
----------------------------------------
Jacques du CHASTEL
MONCHEUR & CIE.
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
----------------------------------------
Xxxxxxxx Xxxxxx XXXXXXXX-XXXXX
ABERDEEN CAPITAL LIMITED
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
----------------------------------------
Herve Xxxxxx Xxxxxxx XXXXXXXXX
12
