EXHIBIT 10.6
[EXECUTION COPY]
REGISTRATION RIGHTS AGREEMENT
(Option Acquisition)
THIS REGISTRATION RIGHTS AGREEMENT (this "Agreement") is entered into
June 18, 1997 by and among Nextel Communications, Inc., a Delaware
corporation (the "Issuer"), and Option Acquisition, L.L.C., a Washington
limited liability company ("Option Acquisition"). Capitalized terms that are
used but not otherwise defined herein are defined in Section 1.1.
RECITALS
A. Pursuant to an Option Purchase Agreement dated June 16, 1997,
Option Acquisition is acquiring from Issuer two options (the "New Options")
that entitle the holder to acquire shares of Class A Common Stock, par value
$.001 per share, of the Issuer (the "New Shares").
B. The Issuer has agreed to provide certain registration rights to
Option Acquisition and to not more than two assignees of Option Acquisition
holding at least 3 million New Shares.
C. The Issuer and Option Acquisition are entering into this Agreement
to set forth the terms and conditions applicable to the grant and exercise of
such registration rights.
NOW, THEREFORE, for good and valuable consideration, the receipt of
which is hereby acknowledged by the parties hereto, the parties hereby agree as
follows:
Article 1
DEFINITIONS
As used in this Agreement, the following terms have the following
meanings:
(i) "Affiliate" means, as to any Person, another Person that directly
or indirectly through one or more intermediaries, Controls, is Controlled by or
is under common Control with, such Person. For the purposes of this
definition, "Control" when used with respect to any Person, means the
possession, directly or indirectly, of the power to direct or cause the
direction of the management and policies of such Person, whether through the
ownership of voting securities, by contract or otherwise; the terms
"Controlling" and "Controlled" have meanings correlative to the foregoing;
provided, that the Issuer and Option Acquisition shall not be deemed to be
direct or indirect Affiliates of each other.
(ii) "Cutback Registration" means any registration in which the
managing underwriter advises the Issuer that marketing
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factors require a limitation of the number of Issuer Common Shares to be
underwritten in such registration.
(iii) "Electing Holder" means any holder of Issuer Common Shares
other than holders of Registrable New Shares (in their respective
capacities as such), who has the right to request inclusion of Issuer Common
Shares held by such holder in a registration.
(iv) "Issuer Common Shares" means shares of Issuer's Class A Common
Stock, par value $.001 per share.
(v) "Person" means a corporation, association, joint venture,
partnership, limited liability company, trust, business, individual, government
or political subdivision thereof, or any governmental agency.
(vi) "Piggyback Registration" means any registration which is not a
Requested Registration (other than a registration on Form S-4 or Form S-8).
(vii) "Qualified Holder" means Option Acquisition and not more than
two assignees of Option Acquisition each of whom (1) at some point in time held
(or then holds) or, upon the exercise of all New Options held by such holder,
would hold, at least 3 million New Shares, (2) is not an Affiliate of Option
Acquisition, (3) was designated as a qualified holder by Option Acquisition,
and (4) agreed in writing to be bound by this
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Agreement; provided that a person ceases to be a Qualified Holder (and all its
rights hereunder will automatically terminate) if (i) such person has held its
New Shares so that the holding period under Rule 144 of the Securities Act
applicable to such holder has been satisfied; and (ii) the number of New Shares
held by such person is less than 1% of the outstanding Issuer Common Shares.
(viii) "Register", "registered" and "registration" refer to a
registration of Issuer Common Shares effected by preparing and filing a
registration statement in compliance with the Securities Act of 1933, as
amended ("the Securities Act") and the declaration or ordering of the
effectiveness of such registration statement.
(ix) "Registrable Securities" means New Shares held by a Qualified
Holder, but does not include (1) any other Issuer Common Shares or other
securities of the Issuer which may now or hereafter be held or acquired by any
Qualified Holder, (2) New Shares that have been registered or sold pursuant to
Rule 144 promulgated by the Securities and Exchange Commission (or any similar
rule then in force), or (3) New Shares that have been exchanged, substituted or
replaced by securities which have been registered under the Securities Act.
If the number of
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Registrable Securities held by a Qualified Holder, or the Registrable
Securities that a Qualified Holder seeks to include in a registration could be
sold by such Holder over a period of 90 days under Rule 144 (or any similar
rule then in force) such New Shares shall not be Registrable Securities.
(x) "Requested Registration" means a registration requested by
Qualified Holders pursuant ction 2.2.
Article 2
REGISTRATION PROVISIONS
2.1 Piggyback Registration. If at any time, and from time to time,
the Issuer proposes to effect a Piggyback Registration for its account or for
the account of a security holder or holders, the Issuer shall:
(a) promptly give to each Qualified Holder written notice thereof;
and
(b) include in such registration, and in any underwriting involved
therein, all the Registrable Securities specified in a written request,
made within 15 days after receipt of such written notice from the Issuer, by any
Qualified Holder; provided that if such registration is a Cutback Registration,
then (i) if such registration is a primary registration on behalf of the Issuer,
the Issuer shall register in such registration
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(A) first, the Issuer Common Shares the Issuer proposes to sell in such
registration, and (B) second, the Registrable Securities held by each
Qualified Holder and the Issuer Common Shares held by the Electing Holders,
(1) if such Registrable Securities and/or Issuer Common Shares
are sought to be included in such registration pursuant to
contractual registration rights in existence on July 28, 1995,
in accordance with the respective contractual rights of the
holders of such Registrable Securities and/or Issuer Common
Shares, and
(2) in all other cases, on a pro rata basis, based upon the
number of Issuer Common Shares the Qualified Holder and any
Electing Holders originally sought to include in such
registration, and
(ii) if such registration is a Piggyback Registration which is solely a
secondary registration on behalf of holders of Issuer Common Shares, the Issuer
shall register in such registration (A) first, the Issuer Common Shares
proposed to be sold by the holders of Issuer Common Shares requesting such
registration (the "Demanding Holders"), and (B) second, the Registrable
Securities
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held by each Qualified Holder and the Issuer Common Shares held by the Electing
Holders, other than the Demanding Holders,
(1) if such Registrable Securities and/or Issuer Common Shares
are sought to be included in such registration pursuant to
contractual registration rights in existence on July 28, 1995,
in accordance with the respective contractual rights of the
holders of such Registrable Securities and/or Issuer Common
Shares, and
(2) in all other cases, on a pro rata basis, based upon the
number of Issuer Common Shares each Qualified Holder and such
Electing Holders originally sought to include in such
registration.
2.2 Requested Registration.
(a) Request for Registration. If after January 1, 1999, the Issuer
shall receive a written request from any Qualified Holder(s) that the
Issuer effect any registration with respect to all or a part of the Registrable
Securities owned by such holder(s), the Issuer shall promptly give notice of
such request to each other Qualified Holder. Subject to Section 2.9, the Issuer
shall thereupon promptly use its best efforts diligently to effect such
Requested Registration and related
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qualifications and compliances (including, without limitation, the
execution of an undertaking to file post-effective amendments) as may be
requested by the Qualified Holder who made the original request and by the
Qualified Holders who make written request to the Issuer within 20 days after
the giving of the aforesaid notice by the Issuer ("Requesting Holders") and as
would permit or facilitate the sale and distribution of the Registrable
Securities as are specified in any such request; provided that the Issuer is not
obligated to take any action to effect a Requested Registration or any related
qualification or compliance pursuant to this Section 2.2:
(i) if, within 60 days after receipt of the initial request
pursuant to this Section 2.2, the Issuer elects to include in
such registration Issuer Common Shares for its own account,
whereupon the Issuer shall notify each Requesting Holder that it
has elected to effect a Piggyback Registration and shall
thereafter diligently proceed to do so, including therein the
Registrable Securities as to which notice was given by the
Requesting Holders pursuant to this Section 2.2 but subject to
the limitations set forth in Section 2.1;
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(ii) if the Requesting Holders do not request to include in such
registration, in the aggregate, at least 3 million Registrable
Securities; or
(iii) if the Issuer has effected two Requested Registrations on
behalf of Qualified Holder(s), which Requested Registrations
have been declared or ordered effective and which effectiveness
has not been suspended or stopped by any governmental or
judicial authority.
If the Requested Registration is a Cutback Registration, the Issuer
shall register in such registration (1) first, the Registrable Securities
which any Requesting Holder seeks to include in such registration, on a pro rata
basis based upon the number of such Issuer Common Shares each Requesting Holder
seeks to include in such registration and (2) second, the Issuer Common Shares
held by each Electing Holder, (i) if such Issuer Common Shares are sought to be
included in such registration pursuant to contractual obligations of the Issuer
in existence on July 28, 1995, in accordance with the respective contractual
rights of the holder of such Issuer Common Shares, and (ii) in all other cases,
on a pro rata basis based upon the number of shares each Electing Holder seeks
to include in such registration.
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(b) Underwriting. If the Requesting Holders intend to distribute the
Registrable Securities covered by such request by means of an underwriting,
such Requesting Holders shall so advise the Issuer as a part of the request made
pursuant to this Section 2.2 and, in such event, the Requesting Holders shall
select an underwriter of their choice, which choice shall be subject to the
approval of the Board of Directors of the Issuer, and which approval shall not
be unreasonably withheld. The Issuer and such Requesting Holders shall negotiate
in good faith and enter into an underwriting agreement in customary form with
the underwriter or underwriters selected for such underwriting. If a Requesting
Holder disapproves of the terms of the underwriting, such Requesting Holder may
elect to withdraw therefrom by written notice to the Issuer and the managing
underwriter, and each of the remaining Requesting Holders shall be entitled to
increase the number of shares being registered, to the extent permitted by the
managing underwriter, in the proportion which the number of shares of
Registrable Securities being registered by such Requesting Holder bears to the
total number of shares being registered by all such remaining Requesting
Holders.
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2.3 Expenses of Registration. Except as otherwise provided herein,
all expenses incurred by the Issuer in connection with any registration ,
qualification, or compliance pursuant to this Agreement, including, without
limitation, all registration, filing and qualification fees, printing expenses,
fees and disbursements of counsel for the Issuer and the holders of Registrable
Securities, and the expenses of any audits required by such registration, shall
be borne by the Issuer. However, (a) the Issuer shall not be required to pay
underwriters' fees, discounts or commissions relating to Registrable Securities
and (b) the Issuer shall not be obligated to pay the fees and disbursements of
more than one legal counsel to the Requesting Holders.
2.4 Registration Procedures. (a) In the case of each registration
effected by the Issuer pursuant to this Article 2, the Issuer shall keep
each holder of Registrable Securities included in such registration advised in
writing as to the initiation, progress, and effective date of each registration,
qualification and compliance, and, at its expense to the extent provided in
Section 2.3, the Issuer will:
(i) subject to Section 2.4(b) below, keep each registration effective
for a period of 90 days (plus any number of
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days that the Qualified Holders are unable to use a prospectus pursuant to
Section 2.4(b) below) or until each such holder shall have completed the
distribution described in the registration statement relating thereto,
whichever first occurs (the "Registration Period"); and
(ii) furnish such number of prospectuses (including preliminary
prospectuses) and other documents filed with the Securities and Exchange
Commission (the "Commission") as part of the registration statement as
such holders from time to time may request.
(b) If, within the Registration Period, there occurs any development
or any event which makes any statement in the registration statement or any
post-effective amendment thereto, or any document incorporated therein by
reference, untrue in any material respect or which requires the making of any
changes in the registration statement or post-effective amendment thereto or
prospectus or amendment or supplement thereto, so that they will not contain any
untrue statement of a material fact or omit to state any material fact required
to be stated therein or necessary to make the statements therein (in the case of
any prospectus, in the light of the circumstances under which they
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were made) not misleading, the Issuer shall immediately notify each
Qualified Holder included in such registration of the occurrence thereof and, as
soon as reasonably practicable, prepare and furnish to each such holder, a
reasonable number of copies of a prospectus supplemented or amended so that, as
thereafter delivered to purchasers of Registrable Securities, such prospectus
shall not contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading. Each Qualified Holder agrees that, upon receipt of any notice from
the Issuer pursuant to this Section 2.4(b), such holder shall forthwith
discontinue disposition of Registrable Securities until it shall have received
copies of such amended or supplemented prospectus, and, if so directed by the
Issuer, shall deliver to the Issuer all copies, other than permanent file
copies, then in its possession of the prospectus covering Registrable Securities
at the time of receipt of such notice.
(c) Each Qualified Holder participating in any Cutback Registration
shall, as among all holders of Registrable Securities, be entitled to exercise
its rights hereunder pro rata
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according to the number of shares of Registrable Securities held by such
Qualified Holder and any Electing Holders.
(d) If requested by the underwriters for any underwritten offering
of Registrable Securities pursuant to a registration requested under this
Agreement, the Issuer will enter into an underwriting agreement with such
underwriters for such offering, such agreement to contain such representations
and warranties by the Issuer and such other terms and provisions as are
customarily contained in underwriting agreements with respect to secondary
distributions, including, without limitation, indemnities and contribution to
the effect and to the extent provided in Section 2.5 hereof and an opinion of
counsel for the Issuer dated the date of the closing under the underwriting
agreement, and providing that the Issuer shall use its best efforts to furnish a
"cold comfort" letter signed by the independent public accountants who have
audited the Issuer's financial statements included in such registration
statement, in each such case covering substantially the same matters with
respect to such registration statement (and the prospectus included therein) as
are customarily covered in opinions of Issuer's counsel and in accountants'
letters delivered to underwriters in underwritten public offerings of securities
and
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such other matters as the underwriters reasonably request and, in the case
of such accountants' letter, with respect to events subsequent to the date of
such financial statements. The holders of Registrable Securities on whose behalf
the Registrable Securities are to be distributed by such underwriters shall be
parties to any such underwriting agreement.
(e) In connection with the preparation and filing of each
registration statement registering Registrable Securities under the
Securities Act, the Issuer will give the underwriters, if any, and their counsel
and accountants, such reasonable and customary access to its books and records
and such opportunities to discuss the business of the Issuer with its officers
and the independent public accountants who have certified the Issuer's financial
statements as shall be necessary, in the opinion of such underwriters or their
respective counsel, to conduct a reasonable investigation within the meaning of
the Securities Act.
2.5 Indemnification. (a) With respect to any registration which has
been effected pursuant to this Article 2, the Issuer shall indemnify each
Qualified Holder whose securities are included therein, each such holder's
directors and officers, each underwriter (as defined in the Securities Act) of
the securities
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sold by such a holder, each other Person who participates in the offering
of such holder's securities, and each Person who controls (within the meaning of
the Securities Act) any such holder, underwriter, or participating Person from
and against all claims, losses, damages and liabilities (or actions in respect
thereof) arising out of or based on:
(i) any untrue statement (or alleged untrue statement) of a
material fact contained in any prospectus, offering circular or
other document (including any related registration statement)
incident to any such registration effected pursuant to this
Article 2,
(ii) any omission (or alleged omission) to state therein a
material fact required to be stated therein or necessary to make
the statements therein not misleading, or
(iii) any violation by the Issuer of the Securities Act or any
rule or regulation promulgated thereunder applicable to the
Issuer, or any blue sky or state securities laws or any rule or
regulation promulgated thereunder applicable to the Issuer,
in each case relating to action or inaction required of the Issuer in
connection with any such registration, and will
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reimburse each such Person entitled to indemnity hereunder for any legal
and other expenses reasonably incurred in connection with investigating or
defending any such claim, loss, damage, liability or action; provided that, the
foregoing indemnity and reimbursement obligation is not applicable to the extent
that any such claim, loss, damage or liability arises out of or is based on any
untrue statement (or alleged untrue statement) or omission (or alleged omission)
made in reliance upon and in conformity with written information furnished to
the Issuer by or on behalf of such a holder or by or on behalf of such an
underwriter specifically for use in such prospectus, offering circular or other
document; and further provided that, with respect to any untrue statement or
omission or alleged untrue statement or omission made in any preliminary
prospectus, the indemnity agreement contained in this Section 2.5(a) will not
inure to the benefit of any underwriter to the extent that any such losses,
claims, damages or liabilities of such underwriter result from the fact that
there was not sent or given to any person who purchased Registrable Securities
in connection with such registration, at or prior to the written confirmation of
the sale of Registrable Securities to such person, a copy of the prospectus
relating to such registration, as then amended or
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supplemented (exclusive of material incorporated by reference), if the
Issuer had previously furnished copies thereof to such underwriter.
(b) Each holder of Registrable Securities which are included in such
registration, qualification or compliance shall indemnify the Issuer, its
directors and officers, each underwriter (as defined in the Securities Act) of
the securities of such holder, each other person who participates in the
offering of such holder's securities and each Person who controls (within the
meaning of the Securities Act) the Issuer or any such underwriter or
participating Person from and against all claims, losses, damages and
liabilities (or actions in respect thereof) arising out of or based on:
(i) any untrue statement (or alleged untrue statement) of a
material fact contained in any prospectus, offering circular or
other document (including any related registration statement)
incident to any such registration effected pursuant to this
Article 2,
(ii) any omission (or alleged omission) to state therein a
material fact required to be stated therein or necessary to make
the statements therein not misleading, or
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(iii)any violation by such holder of the Securities Act or any
rule or regulation promulgated thereunder applicable to such
holder, or of any blue sky or other state securities law or any
rule or regulation promulgated thereunder applicable to such
holder,
in each case, relating to action or inaction required of such holder in
connection with any registration, qualification or compliance, and will
reimburse each such Person entitled to indemnity hereunder for any legal and
other expenses reasonably incurred in connection with investigating or defending
any such claim, loss, damage, expense, liability or action, but in each case
only to the extent that such untrue statement (or alleged untrue statement) or
omission (or alleged omission) is made in such prospectus, offering circular or
other document in reliance upon and in conformity with written information
furnished to the Issuer by or on behalf of such holder specifically for use
therein; and further provided that, with respect to any untrue statement or
omission or alleged untrue statement or omission made in any preliminary
prospectus, the indemnity agreement contained in this Section 2.5(b) will not
inure to the benefit of any underwriter to the extent that any such losses,
claims, damages or liabilities of such underwriter result from the fact
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that there was not sent or given to any person who purchased Registrable
Securities in connection with such registration, at or prior to the written
confirmation of the sale of Registrable Securities to such person, a copy of the
prospectus relating to such registration, as then amended or supplemented
(exclusive of material incorporated by reference), if the Issuer had previously
furnished copies thereof to such underwriter.
(c) Each party entitled to indemnification under this Section 2.5 (an
"Indemnified Party") shall give notice to the party required to provide
indemnification (the "Indemnifying Party") promptly after the Indemnified Party
has actual knowledge of any claim as to which indemnity may be sought, and shall
permit the Indemnifying Party to assume the defense of any such claim or any
litigation resulting therefrom; provided that
(i) counsel for the Indemnifying Party who shall conduct the
defense of any such claim or any litigation shall be approved by the
Indemnified Party,
(ii) the Indemnified Party may participate in such defense at
the Indemnified Party's expense (provided that the Indemnified Party or
Indemnified Parties have the right to employ one counsel to represent it
or them if, in the reasonable judgment of the Indemnified Party or
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or Indemnified Parties, it is advisable for it or them to be represented
by separate counsel by reason of having legal defenses which are different
from or in addition to those available to the Indemnifying Party, and in
that event the fees and expenses of such one counsel will be paid by
the Indemnifying Party), and
(iii) failure of any Indemnified Party to give notice as
provided herein will not relieve the Indemnifying Party of its obligations
under this Section 2.5.
No Indemnifying Party, in the defense of any such claim or litigation,
will, except with the consent of each Indemnified Party, consent to entry of any
judgment or enter into any settlement (which judgment or settlement would be
adverse to and binding upon such Indemnified Party) of any claim for which such
Indemnified Party may seek indemnification hereunder; provided that, as to each
Indemnified Party withholding such consent, the maximum amount of the losses,
damages or liabilities in respect of which such Indemnified Party may seek
indemnification hereunder with respect to such claim is limited to the amount
which the Indemnifying Party would have paid to or on behalf of such Indemnified
Party had such Indemnified Party consented to such judgment or settlement.
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(d) If the indemnification provided for in this Section 2.5 is for
any reason unavailable to an Indemnified Party in respect to any loss,
claim, damage or liability, or any action in respect thereof, referred to
herein, then each Indemnifying Party will, in lieu of indemnifying such
Indemnified Party, contribute to the amount paid or payable by such Indemnified
Party as a result of such loss, claim, damage or liability, or action in respect
thereof, in such proportion as shall be appropriate to reflect the relative
fault of the Indemnifying Party on the one hand and the Indemnified Party on the
other with respect to the statements or omissions which resulted in such loss,
claim, damage or liability, or action in respect thereof, as well as any other
relevant equitable considerations. The relative fault will be determined by
reference to whether the untrue or alleged untrue statement of a material fact
or omission or alleged omission to state a material fact relates to information
supplied by the Indemnifying Party on the one hand or the Indemnified Party on
the other, the intent of the parties and their relative knowledge, access to
information and opportunity to correct or prevent such statement or omission,
but not by reference to any Indemnified Party's stock ownership in the Issuer.
In no event, however, will a holder of Registrable
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Securities be required to contribute in excess of the amount of the net
proceeds received by such holder in connection with the sale of Registrable
Securities in the offering which is the subject of such loss, claim, damage or
liability. The amount paid or payable by an Indemnified Party as a result of the
loss, claim, damage or liability, or action in respect thereof, referred to
above in this paragraph includes, for purposes of this paragraph, any legal or
other expenses reasonably incurred by such Indemnified Party in connection with
investigating or defending any such action or claim. No Person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act)) is entitled to contribution from any Person who was not guilty
of such fraudulent misrepresentation.
2.6 Information by Holders. If Registrable Securities owned by a
Qualified Holder are included in any registration, such holder will furnish to
the Issuer such information regarding itself and the distribution proposed by
such holder as the Issuer may reasonably request and as is required in
connection with any registration, qualification or compliance referred to in
this Article 2.
2.7 Rule 144 Reporting. With a view to making available to each
Qualified Holder the benefits of certain rules
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and regulations of the Commission which may permit the sale of the
Registrable Securities to the public without registration, the Issuer agrees
that so long as a holder owns any Registrable Securities, the Issuer shall, (a)
make and keep available public information, as those terms are contemplated by
Rule 144 under the Securities Act; (b) timely file with the Commission all
reports and other documents required to be filed under the Securities Act and
the Securities Exchange Act of 0000 (xxx "Xxxxxxxx Xxx"); and (c) furnish to
each holder forthwith upon request a written statement by the Issuer as to its
compliance with the reporting requirements of the Securities Act and the
Exchange Act, a copy of the most recent annual or quarterly report of the
Issuer, and such other information as such holder may reasonably request in
order to avail itself of any rule or regulation of the Commission allowing such
holder to sell any Registrable Securities without registration.
2.8 Future Registration Rights. (a) The Issuer will not hereafter
agree with the holders of any securities issued or to be issued by the Issuer
to register such securities under the Securities Act unless such agreement
specifically provides that (i) such holder of securities may not participate in
any Piggyback Registration except as provided in Section 2.1, (ii)
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the holder of such securities may not participate in any Requested
Registration except as provided in Section 2.2, (iii) unless in the opinion of
the managing underwriter or underwriters, if any, of any Piggyback Registration
or Requested Registration the public offering or sale of such other securities
would not interfere with the successful public offering and sale of Registrable
Securities requested to be included in such Piggyback Registration or Requested
Registration, such other securities will not be included in a registration
statement in which such shares of Registrable Securities are so included, and
(iv) such securities may not be publicly offered or sold for a period of at
least ninety (90) days after the date upon which such registration statement
becomes effective. This Section 2.8 is not violated by the future grants of
registration rights provided such rights are subject to the foregoing
restrictions and are exercisable on a pro rata basis with all other holders of
such rights, and the Issuer is not be required to obtain the consent of any
party hereto with respect to such future grants.
(b) From and after the date hereof, the Issuer shall not enter into
any agreement with any holder or prospective holder of any securities of the
Issuer providing for the granting to such holder of registration rights
(including demand
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registration rights which, by their terms, do not permit the inclusion of
shares of parties other than the holders of such demand registration rights)
that entitle such holder to priority over a Qualified Holder with respect to
registration of the securities of the Issuer.
2.9 Permitted Interruption. Notwithstanding any provision of this
Article 2, the Issuer shall not be required to prepare or file a
registration statement, amendment or post-effective amendment thereto or
prospectus supplement or to supplement or amend any registration statement or
otherwise facilitate the resale of Registrable Securities, and the Issuer shall
be free to take or omit to take any other action that would result in the
impracticality of any such filing, supplement or amendment, if such filing,
supplement or amendment (and any required disclosure therein), in the good faith
and reasonable judgment of the Issuer, would jeopardize the completion of a
material investment in the Issuer, or any acquisition, divestiture or other
similar transaction that the Issuer is at such time in negotiations therefor, so
long as the Issuer shall, as promptly as practicable after the conclusion of
such negotiations, make such filing, supplement or amendment and so long as the
Issuer shall, as promptly as practicable thereafter, comply with the
requirements
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of this Article 2, if applicable (any period described in this
Section 2.9 during which the Company is not required to make such filing,
amendment or supplement being herein a "Permitted Interruption"). If a Qualified
Holder has requested registration of New Shares in a Requested Registration,
Piggyback Registration or Cutback Registration and a Permitted Interruption
affects that registration, the Issuer agrees to notify each of the Holders so
affected by a Permitted Interruption upon each of the commencement and
termination of each Permitted Interruption. The Issuer shall not be required in
the notice of a Permitted Interruption to disclose the cause for such Permitted
Interruption. The Permitted Interruption terminates upon the termination of such
negotiations or the public disclosure thereof.
Article 3
MISCELLANEOUS
3.1 Notices. Except as otherwise specifically provided in this
Agreement, all communications hereunder shall be sent in the manner and to the
addresses set forth in Section 11.1 of the Option Purchase Agreement and, as to
any Qualified Holder, to an address provided to Issuer by such Holder for
purposes of notices hereunder.
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3.2 Non-Waiver of Remedies and Actions By Holders. No course of
dealing between the Issuer and any Qualified Holder or any delay on the part of
such holder in exercising any rights available to such holder operates as a
waiver of any right of such holder, except to the extent expressly waived in
writing by such holder.
3.3 Headings. The headings in this Agreement are for purposes of
reference only and are not to be considered in construing this Agreement.
3.4 Counterparts. This Agreement may be executed in any number of
counterparts, each of which when so executed and delivered constitutes an
original and all together shall constitute one Agreement.
3.5 Successors and Assigns. This Agreement binds and inures to the
benefit of the successors of any Qualified Holders and the Issuer. Except for
Option Acquisition's right to designate up to two other Qualified Holders as
expressly provided herein, no Qualified Holder may assign any of the rights
created by this Agreement.
3.6 Consent of Holders; Waiver. (a) Whenever, by the terms hereof,
anything is required to be done to the satisfaction of the Qualified Holders,
or such Holders are to appoint a
CLCORP01 Doc: 230115_4 28
representative, if such satisfaction, or appointment is necessary in connection
with a specific registration being effected hereunder, it will be effective
when done by the Qualified Holders holding a majority of the Registrable
Securities held by Qualified Holders that are being included in such
registration.
(b) Except as provided in Section 3.6(a), whenever, by the terms
hereof, the consent of the Qualified Holders is required, anything is
required to be done to the satisfaction of such holders, or if such holders are
to appoint a representative, such consent, satisfaction, or appointment is
effective when done by Qualified Holders holding a majority of the Registrable
Securities held by Qualified Holders.
(c) All rights and remedies hereunder for the benefit of the
Qualified Holders are intended to be for the benefit of each holder of
Registrable Securities and, unless otherwise specified to the contrary, may be
exercised by the Qualified Holders together or by each such holder separately.
3.7 Enforceability. If any term or provision of this Agreement, or
the application thereof to any Person or circumstance, is, to any extent,
invalid or unenforceable, the remaining terms and provisions of this
Agreement or application to other Persons and circumstances are not invalidated
thereby,
CLCORP01 Doc: 230115_4 29
and each term and provision hereof is to be construed with all other remaining
terms and provisions hereof to effect the intent of the parties hereto to the
fullest extent permitted by law.
3.8 Law Governing. This Agreement is to be construed and enforced in
accordance with and shall be governed by the laws of the State of Delaware
applicable to contracts executed in and to be fully performed in that state.
3.9 Effectiveness. The effectiveness of this Agreement is
conditioned upon, and the obligations and rights of the parties hereunder will
come into force and effect at, the Closing as contemplated in the Option
Purchase Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed and delivered as of the day and year first above written.
NEXTEL COMMUNICATIONS, INC.
/s/Xxxxxx X. Xxxxxxxx
Name: Xxxxxx X. Xxxxxxxx
Title: Vice President
OPTION ACQUISITION, L.L.C.
/s/C. Xxxxx Xxxxxx
Name: C. Xxxxx Xxxxxx
Title: Vice President,
COM Management, Inc., It's Manager
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