Exhibit 3
SECOND AMENDED AND RESTATED AGREEMENT
AMONG SERIES E, SERIES F AND SERIES G PREFERRED STOCKHOLDERS
AND SENIOR REGISTRATION RIGHTS AGREEMENT
This Second Amended and Restated Agreement Among Series E, Series F and Series G
Preferred Stockholders and Senior Registration Rights Agreement (this
"Agreement") which amends and restates the Amended and Restated Agreement among
Series E and Series F Preferred Stockholders and Senior Registration Rights
Agreement, dated as of August 28, 1998, as amended as of June 11, 1999 (the
"Restated Agreement") by and among AirNet Communications Corporation, a Delaware
corporation (the "Company"), Xxxxxx Corporation, a Delaware corporation ("Xxxxxx
Corporation"), Tandem PCS Investments, L.P., a Delaware limited partnership
("Tandem"), Xxxxx Capital Management, L.P. ("Xxxxx"), SCP Private Equity
Partners, L.P. ("SCP"), HVFM-I, L.P. ("HVFM"), APA Excelsior III, L.P. ("APA")
and such other purchasers identified therein (Tandem, Xxxxx, SCP, HVFM, APA and
such other Purchasers are collectively, "Purchasers"), the Series E Preferred
Stockholders listed on Exhibit A hereto (the "Series E Investors"), the Series F
Preferred Stockholders listed on Exhibit B hereto (the "Series F Investors"), is
made as of September 7, 1999 by and among the Company, Xxxxxx Corporation, the
Purchasers, the Series E Investors, the Series F Investors and the Series G
Preferred Stockholders listed on Exhibit C hereto (the "Series G Investors").
Capitalized terms used but not defined herein have the meanings ascribed to such
terms in the "Stock Purchase Agreement" (as defined below).
WITNESSETH:
WHEREAS, pursuant to those certain Confidential Stock Purchase Agreements, dated
as of the date hereof, among the Company and the Series G Investors (each a
"Stock Purchase Agreement"), the Series G Investors have purchased 230,679,231
shares of Series G Preferred Stock, in the aggregate (such shares of Series G
Preferred Stock, together with the "Common Stock" (as defined below) into which
such shares of Series G Preferred Stock are convertible, are hereinafter
referred to collectively as the "Series G Registrable Securities");
WHEREAS, it is a condition precedent to the Series G Investors making the
investments contemplated by the Stock Purchase Agreement that the Company grant
to the Series G Investors certain registration rights with respect to the Series
G Registrable Securities as provided herein; and
WHEREAS, the parties hereto desire to amend and restate the Restated Agreement
as provided herein and by executing this Agreement consent to the terms and
provisions hereof;
NOW, THEREFORE, in consideration of the mutual agreements herein contained and
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties agree as follows:
ARTICLE I
Definitions
1.1 Definitions. Unless otherwise defined herein, capitalized terms used
in this Agreement shall have the meanings set forth in the Stock Purchase
Agreement. The following capitalized terms shall have the following meanings:
"1999 Note Purchase Agreements" shall mean, collectively, the
Convertible Note and Warrant Purchase Agreements, dated as of June 11, 1999 or
August 2, 1999, among the Company and certain of the Purchasers, individually,
pursuant to which such Purchasers purchased (i) Notes in an aggregate principal
amount equal to $6,338,187.06, which are convertible into shares of Series G
Preferred Stock and (ii) Warrants to purchase shares of Common Stock (the
"Warrants").
"Affiliate" means, as to any person, any other person that,
directly or indirectly, is in control of, is controlled by, or is under common
control with, such person. For purposes of this definition, "control" of a
person means the power, directly or indirectly, either to (i) vote 30% or more
of the securities having ordinary voting power for the election of directors of
such person or (ii) direct or cause the direction of the management and policies
of' such person, whether by contract or otherwise.
"Board" shall mean the Board of Directors of the Company.
"Commission" shall mean the Securities and Exchange Commission or any
other federal agency at the time administering the Securities Act.
"Common Stock" shall mean the Company's Common Stock, par value $.001
per share.
"Convertible Securities" shall mean the Series E Convertible
Securities, the Series F Convertible Securities and the Series G Convertible
Securities.
"Form S-3" shall mean a Registration Statement on Form S-3, or any
substantially similar form then in effect, under the Securities Act.
"Xxxxxx" means Xxxxxx Corporation, a Delaware corporation, together
with any subsidiaries of Xxxxxx to which it assigns, in whole or in part, its
rights and/or obligations hereunder, provided that (a) Xxxxxx Corporation and
any such subsidiaries shall be treated as a single person for purposes of this
Agreement and (b) Xxxxxx Corporation shall be conclusively presumed to be
authorized to act on behalf of any such subsidiaries.
"Xxxxxx Warrant" means the Series E Preferred Stock Purchase Warrant,
dated September 12, 1997, issued by the Company to Xxxxxx with respect to
11,229,697.04 shares of Series E Preferred Stock, as such Warrant may be amended
from time to time.
"Holder" shall mean any holder of outstanding Restricted Securities
"Initiating Holder(s)" shall mean (i) any Holder or Holders who in the
aggregate hold (a) at least twenty-five percent (25%) of the Series E
Registrable Securities, (b) at least
twenty-five percent (25%) of the Series F Registrable Securities, or (c) at
least twenty-five percent (25%) of the Series G Registrable Securities, and (ii)
each Significant Holder.
"Key Management" shall mean, at any time, any director or executive
officer of the Company at such time.
"Material Adverse Event" shall mean an occurrence having a consequence
that either (i) is materially adverse as to the business, properties, prospects
or financial condition of the Company or (ii) is reasonably foreseeable, has a
reasonable likelihood of occurring, and if it were to occur might materially
adversely effect the business, properties, prospects or financial condition of
the Company.
"Notes" shall mean those certain Convertible Promissory Notes in an
aggregate principal amount equal to $6,338,187.06, dated as of June 11, 1999 or
August 2, 1999, and executed by the Company, as such Notes may be amended from
time to time.
"Prior Series Agreement" shall mean the Company's Second Amended and
Restated Shareholders' and Registration Rights Agreement dated as of April 16,
1997 exercised in connection with the Series A, Series B, Series C and Series D
Voting Convertible Preferred Stock.
"Purchaser" shall have the meaning ascribed to such term in the first
paragraph hereof.
"Purchaser Securities" shall mean the Notes, the Warrants, the shares
of Series G Preferred Stock into which the Notes are convertible and any shares
of Common Stock into which such shares of Series G Preferred Stock are
convertible.
"Qualified Public Offering" shall mean the consummation of a firm
commitment public offering of Common Stock, underwritten by an underwriter
reasonably acceptable to the holders of a majority of the then outstanding
voting power of the Senior Preferred Stock, voting together as a single class,
registered under the Securities Act, other than a registration relating solely
to a transaction under Rule 145 under the Securities Act (or any successor
thereto) or to an employee benefit plan of the Company, in which (i) the
aggregate sales price to the Company of which (before deduction of underwriting
discount, commissions and expenses of sale) is not less than $20,000,000, and
(ii) the product of the price per share paid by the public for the Common Stock
sold in such offering, multiplied by the number of shares of Common Stock
outstanding immediately after such offering, is not less than $220,000,000.
The terms "Register", "Registered", and "Registration" refer to a
registration effected by preparing and filing a Registration Statement, and the
declaration or ordering of the effectiveness of such Registration Statement.
"Registrable Securities" shall mean (i) all Common Stock issued or
issuable upon conversion of any of the Convertible Securities, other than Common
Stock sold pursuant to a Registration Statement, (ii) any securities of the
Company deemed to be Registrable Securities as provided in Section 2.7 of this
Agreement, and (iii) all Common Stock, other than Common
Stock sold pursuant to a Registration Statement, issued or issuable upon (a) the
exercise of any Warrant; (b) the exercise of the conversion rights set forth in,
or automatic conversion of, any Note; or (c) the exercise of conversion rights
in respect of, or automatic conversion of, any other Purchaser Securities.
"Registration Expenses" shall mean all expenses incurred by the
Company in complying with Article II of this Agreement, including, without
limitation, all federal and state registration, qualification and filing fees,
printing expenses, fees and disbursements of counsel for the Company and one
special counsel (if different from counsel for the Company) for the Holders
participating in any such Registration, blue sky fees and expenses, and the
expense of any special audits incident to or required by any such Registration.
"Restricted Securities" shall mean the Convertible Securities and the
Registrable Securities.
"Registration Statement" shall mean a registration statement in
compliance with the Securities Act.
"Securities Act" shall mean the Securities Act of 1933, as amended, or
any similar federal statute, and the rules and regulations of the Commission
thereunder, all as the same shall be in effect at the time.
"Selling Expenses" shall mean all underwriting discounts and selling
commissions applicable to the sale of Registrable Securities pursuant to this
Agreement.
"Senior Preferred Stock" shall mean, collectively, the Series E
Preferred Stock, the Series F Preferred Stock and the Series G Preferred Stock.
"Series E Convertible Securities" shall mean the Series E Preferred
Stock, the Xxxxxx Warrant and the shares of Series E Preferred Stock issuable
upon exercise of the Xxxxxx Warrant.
"Series E Preferred Stock" shall mean the 543,624,378 issued and
outstanding shares of Series E Senior Voting Convertible Preferred Stock, par
value $0.01 per share.
"Series E Registrable Securities" shall mean all Registrable
Securities issued or issuable upon conversion of any of the Series E Convertible
Securities.
"Series F Convertible Securities" shall mean the Series F Preferred
Stock.
"Series F Preferred Stock" shall mean the 283,471,155 issued and
outstanding shares of Series F Senior Voting Convertible Preferred Stock, par
value $0.01 per share.
"Series F Registrable Securities" shall mean all Registrable
Securities issued or issuable upon conversion of any of the Series F Convertible
Securities.
"Series G Convertible Securities" shall mean the Series G Preferred
Stock.
"Series G Preferred Stock" shall mean the _________ issued and
outstanding shares of Series G Senior Voting Convertible Preferred Stock, par
value $0.01 per share.
"Series G Registrable Securities" shall mean all Registrable
Securities issued or issuable upon conversion of any of the Series G Convertible
Securities.
"Significant Holder" shall mean (i) each person or group of related
persons under common ownership or management control (such persons, "Related
Persons") that purchased on or before September 12, 1997 and continues to own
shares of Series E Preferred Stock with an aggregate Stated Value of not less
than $3,000,000; (ii) the initial transferee or assignee (whether a single
person or a group of Related Persons) of Series E Preferred Stock with an
aggregate Stated Value of not less than $3,000,000 from a Significant Holder
described in clause (i); (iii) the purchaser of the Company's Senior Secured
Convertible Promissory Note and Series E Preferred Stock Purchase Warrant issued
on September 15, 1997 and September 12, 1997, respectively, both of which are
exercisable for Series E Preferred Stock (collectively, the "Series E Rights"),
including entities controlling, controlled by, and under common control with,
such purchaser (collectively, the "Series E Rights Holder"); provided that the
Series E Rights Holder (x) continues to own Series E Preferred Stock, or Series
E Rights exercisable for shares of Series E Preferred Stock, with an aggregate
Stated Value of at least $1,000,000 and (y) does not have any transferee or
assignee that qualifies as a Significant Holder under clause (iv); and (iv) one
initial transferee or assignee (whether a single person or a group of Related
Persons) of the Series E Rights Holder that owns shares of Series E Preferred
Stock, or Series E Rights exercisable for shares of Series E Preferred Stock,
with an aggregate Stated Value of at least $1,000,000.
"Significant Investor" shall have the meaning set forth in the Stock
Purchase Agreement.
"Warrants" shall have the meaning ascribed to such term in the
definition of the 1999 Note Purchase Agreements.
ARTICLE II
Registration Rights
2.1 Demand Registration.
(a) Request for Registration on Form Other than Form S-3. Subject to
the terms of this Agreement, in the event that the Company shall receive from
Initiating Holder(s) at any time after the earlier of (i) September 13, 2000, or
(ii) three (3) months after the effective date of a Qualified Public Offering
(provided that, if so required in writing by the underwriter(s) of the Qualified
Public Offering, such three-month period may be extended to a period not to
exceed the greater of (I) the length of the lock-up period imposed on members of
senior management of the Company in connection with the Qualified Public
Offering and (II) six (6) months, provided further that if such three-month
period is so extended, the Company shall use its reasonable best efforts to
arrange for the Registration provided for in this Section 2.1(a) to be
effective at or before the end of such extended period), a written request that
the Company effect a Registration with respect to all or a part of the
Registrable Securities of such Initiating Holder(s) on a form other than Form
S-3 for an offering of (x) in the case of a request delivered by Initiating
Holder(s), other than a Significant Holder of at least twenty-five percent (25%)
of the then outstanding Series E Registrable Securities, at least twenty-five
percent (25%) of the then outstanding Series F Registrable Securities or at
least twenty-five percent (25%) of the then outstanding Series G Registrable
Securities, or (y) in the case of a request from an Initiating Holder who is a
single Significant Holder, at least fifty percent (50%) of the then outstanding
Registrable Securities represented by Convertible Securities owned by such
Significant Holder, the Company shall (A) promptly give written notice of the
proposed Registration to all other Holders and (B) as soon as practicable, use
its best efforts to effect Registration of the Registrable Securities specified
in such request of the Initiating Holder(s), together with any Registrable
Securities of any Holder joining in such request as are specified in a written
request given within twenty (20) business days after written notice from the
Company. The Company shall not be obligated to take any action to effect any
such Registration pursuant to this Section 2.1(a) (i) except as provided above,
within the three (3) to six (6) months period referred to in the first sentence
of this Section 2.1(a) or (ii) after the Company has effected two (2) such
Registrations pursuant to this Section 2.1(a) in which the Company has not
Registered securities for its own account and such Registrations have been
declared effective. If the number of Registrable Securities proposed to be
Registered by the Initiating Holder(s) is reduced pursuant to Section
2.1(e)(iii), such Registration shall not count toward the limit of two (2)
Registrations referred to in the preceding sentence.
(b) Right of Deferral of Registration on Form Other than Form S-3. If
the Company shall furnish to all such Holders who joined in the request for any
Registration pursuant to Section 2.1(a) a certificate signed by the President of
the Company stating that, in the good faith judgment of the Board, it would be
detrimental to the Company for any Registration to be effected as requested
under Section 2.1(a), the Company shall have the right to defer the filing of a
Registration Statement with respect to such requested Registration for a period
of not more than one hundred twenty (120) days from delivery of the request of
the Initiating Holders; provided, however, that the Company may not utilize this
right more than once in any twelve-month period.
(c) Request for Registration on Form S-3. Subject to the terms of this
Agreement, in the event that the Company receives from one or more Initiating
Holders a written request that the Company effect any Registration on Form S-3
(or any successor form to Form S-3 regardless of its designation) at a time when
the Company is eligible to Register securities on Form S-3 (or any successor
form to Form S-3 regardless of its designation) for an offering of Registrable
Securities, the Company will promptly give written notice of the proposed
Registration to all other Holders and will as soon as practicable use its best
efforts to effect Registration of the Registrable Securities specified in such
request, together with all of such Registrable Securities of any Holder joining
in such request as are specified in a written request delivered to the Company
within twenty (20) business days after written notice from the Company of the
proposed Registration on Form S-3. There shall be no limit to the number of
occasions on which the Company shall be obligated to effect Registration under
this
Section 2.1(c), but the Company shall not be required to effect more than two
(2) such Registrations in any calendar year.
(d) Registration of Other Securities in Demand Registration. Any
Registration Statement filed pursuant to the request of the Initiating Holders
under this Article II may, subject to the provisions of Sections 2.1(e) and 2.7,
include securities of the Company other than Registrable Securities, including,
without limitation, any securities that the Company is required or permitted to
register pursuant to any other registration rights agreement.
(e) Underwriting in Demand Registration.
(i) Notice of Underwriting. If the Initiating Holders intend to
distribute the Registrable Securities covered by the request by means of an
underwriting, they shall so advise the Company, as a part of their request made
pursuant to this Article II, and the Company shall include such information in
the written notice referred to in Section 2.1(a) or (c). The right of any Holder
to Registration pursuant to this Section 2.1 shall be conditioned upon such
Holder's agreement to participate in such underwriting and the inclusion of such
Holder's Registrable Securities in the underwriting.
(ii) Selection of Underwriter in Demand Registration. The Company
shall (together with all Holders proposing to distribute their Registrable
Securities through such underwriting) enter into an underwriting agreement with
the representative ("Underwriter's Representative") of the underwriter or
underwriters selected for such underwriting by the Holders of a majority of the
Registrable Securities being Registered pursuant to the written request of the
Initiating Holders or Significant Holder, as the case may be, and agreed to by
the Company, which agreement shall not be unreasonably withheld.
(iii) Marketing Limitation in Demand Registration. In the event
the Underwriter's Representative advises the Initiating Holders or Significant
Holder, as the case may be, in writing that market factors (including, without
limitation, the aggregate number of shares of Common Stock requested to be
Registered, the general condition of the market, and the status of the persons
proposing to sell securities pursuant to the Registration) require a limitation
of the number of shares to be underwritten, then the Company will include in
such Registration, first Registrable Securities requested to be included in the
Registration by Holders, second securities proposed by any member of Key
Management to be sold for his/her own account, third securities proposed by the
Company to be sold for its own account or for the account of others at the
Company's request, and fourth securities to be included in such Registration
pursuant to the Prior Series Agreement, each pro rata based upon the number of
shares of such securities proposed to be sold and so requested to be included
such that such Registration does not exceed the Underwriter's Representative's
limit. No Registrable Securities or other securities excluded from the
underwriting by reason of this Section 2.1(e)(iii) shall be included in such
Registration Statement.
(iv) Right of Withdrawal in Demand Registration. If any Holder of
Registrable Securities, or a holder of other securities entitled (upon request)
to be included in such Registration, disapproves of the terms of the
underwriting, such person may elect to
withdraw therefrom by written notice to the Company, the underwriter and the
Initiating Holders delivered at least seven (7) days prior to the effective date
of the Registration Statement. The securities so withdrawn shall also be
withdrawn from the Registration Statement.
(f) Blue Sky in Demand Registration. In the event of any Registration
pursuant to Section 2.1, the Company will exercise its best efforts to Register
and qualify the securities covered by the Registration Statement under such Blue
Sky or other securities laws of such jurisdictions as shall be reasonably
appropriate for the distribution of such securities; provided, however, that (i)
the Company shall not be required to qualify to do business or to file a general
consent to service of process in any such states or jurisdictions, and (ii)
notwithstanding anything in this Agreement to the contrary, in the event any
jurisdiction in which the securities shall be qualified imposes a non-waivable
requirement that expenses incurred in connection with the qualification of the
securities be borne by selling stockholders, such expenses shall be payable pro
rata by selling stockholders.
2.2 Piggyback Registration.
(a) Notice of Piggyback Registration and Inclusion of Registrable
Securities. Subject to the terms of this Agreement, in the event the Company
decides to Register any of its securities (either for its own account or the
account of a security holder other than pursuant to a demand Registration) on a
form that would be suitable for a Registration involving Registrable Securities,
the Company will (i) promptly give each Holder written notice thereof (which
shall include a list of the jurisdictions in which the Company intends to
attempt to qualify such securities under the applicable Blue Sky or other state
securities laws) and (ii) include in such Registration (and any related
qualification under Blue Sky laws or other compliance), and in any underwriting
involved therein, all the Registrable Securities specified in a written request
delivered to the Company by any Holder within fifteen (15) days after delivery
of such written notice from the Company.
(b) Underwriting in Piggyback Registration.
(i) Notice of Underwriting in Piggyback Registration. If the
Registration of which the Company gives notice is for a Registered public
offering involving an underwriting, the Company shall so advise the Holders as a
part of the written notice given pursuant to Section 2.2(a). In such event, the
right of any Holder to Registration shall be conditioned upon such underwriting
and the inclusion of such Holder's Registrable Securities in such underwriting
to the extent provided in this Section 2.2. All Holders proposing to distribute
their securities through such underwriting shall (together with the Company and
the other holders distributing their securities through such underwriting) enter
into an underwriting agreement with the Underwriter's Representative for such
offering. The Holders shall have no right to participate in the selection of the
underwriters for an offering pursuant to this Section 2.2.
(ii) Marketing Limitation in Piggyback Registration. In the event
the Underwriter's Representative advises the Holders seeking Registration of
Registrable Securities pursuant to Section 2.2 in writing that market factors
(including, without limitation, the aggregate number of shares of Common Stock
requested to be Registered, the general condition of the
market, and the status of the persons proposing to sell securities pursuant to
the Registration) require a limitation of the number of shares to be
underwritten, the Underwriter's Representative (subject to the allocation set
forth in Section 2.2(b)(iii)) may exclude some or all Registrable Securities
from such Registration and underwriting.
(iii) Allocation of Shares in Piggyback Registration. In the event
that the Underwriter's Representative limits the number of shares to be included
in a Registration pursuant to Section 2.2(b)(ii), or shall otherwise require a
limitation of the number of shares to be included in the Registration, then the
Company will include in such Registration first securities proposed by the
Company to be sold for its own account; second securities included in such
Registration pursuant to the Prior Series Agreement, third Registrable
Securities requested to be included in the Registration by the Holders, and
fourth securities proposed by any member of Key Management to be sold for
his/her own account, each pro rata based upon the number of shares of such
securities proposed to be sold and so requested to be included such that such
Registration does not exceed the Underwriter's Representative's limit. No
Registrable Securities or other securities excluded from the underwriting by
reason of this Section 2.2(b)(iii) shall be included in the Registration
Statement.
(iv) Right of Withdrawal in Piggyback Registration. If any Holder
disapproves of the terms of any such underwriting, such person may elect to
withdraw therefrom by written notice to the Company and the underwriter
delivered at least seven (7) days prior to the effective date of the
Registration Statement. Any Registrable Securities or other securities excluded
or withdrawn from such underwriting shall be withdrawn from such Registration.
(c) Blue Sky in Piggyback Registration. In the event of any
Registration of Registrable Securities pursuant this to Section 2.2, the Company
will exercise its best efforts to Register and qualify the securities covered by
the Registration Statement under such other securities or Blue Sky laws of such
jurisdictions as shall be reasonably appropriate for the distribution of such
securities; provided, however, that (i) the Company shall not be required to
qualify to do business or to file a general consent to service of process in any
such states or jurisdictions, and (ii) notwithstanding anything in this
Agreement to the contrary, in the event any jurisdiction in which the securities
shall be qualified imposes a non-waivable requirement that expenses incurred in
connection with the qualification of the securities be borne by selling
stockholders, such expenses shall be payable pro rata by selling stockholders.
2.3 Expenses of Registration. All Registration Expenses incurred in
connection with two (2) Registrations pursuant to Section 2.1(a), three (3)
Registrations pursuant to Section 2.1(e) (Form S-3), and all Registrations
pursuant to Section 2.2 shall be borne by the Company. Notwithstanding the
above, the Company shall not be required to pay for any expenses of any
Registration proceeding begun pursuant to Section 2.1 if the Registration
request is subsequently withdrawn at the request of the Holder(s) of a majority
of the Registrable Securities to be Registered (which Holders shall bear such
expenses), provided, however, that if at the time of such withdrawal, the
Holder(s) have learned of a Material Adverse Event not known to the Holders at
the time of their request, then the Holders shall not be required to pay any
such expenses. All Selling Expenses shall be borne by the holders of the
securities Registered pro rata on the basis of the number of shares Registered.
2.4 Registration Procedures. The Company will keep each Holder whose
Registrable Securities are included in any Registration pursuant to this
Agreement advised as to the initiation and completion of such Registration. At
its expense, the Company will (a) use its best efforts to keep such Registration
effective for a period of one hundred eighty (180) days (or if such Registration
is a shelf Registration, the first date upon which all Registrable Securities
covered by such shelf Registration Statement shall have been sold) or until the
Holder or Holders have completed the distribution described in the Registration
Statement relating thereto, whichever first occurs; and (b) furnish such number
of prospectuses (including preliminary prospectuses) and other documents as a
Holder from time to time may reasonably request. In connection with any
Registration pursuant to this Agreement, the Holder(s) participating therein
shall have the right to obtain copies of, and letters permitting them to rely
upon, any of the following delivered to the underwriter(s) or the Company: (a)
any comfort letter(s) delivered by the Company's independent public accountants,
(b) any opinion(s) delivered by the Company's counsel and (c) any officers'
certificate(s) delivered by the Company.
2.5 Information Furnished by Holder. It shall be a condition precedent of
the Company's obligations under this Agreement that each Holder of Registrable
Securities included in any Registration furnish to the Company such information
regarding such Holder and the distribution proposed by such Holder or Holders as
the Company may reasonably request.
2.6 Indemnification.
(a) Company's Indemnification of Holders. To the extent permitted by
law, the Company will indemnify each Holder, each of its officers, directors,
managers and constituent partners and members, legal counsel for the Holders,
and each person controlling such Holder, with respect to which Registration,
qualification or compliance of Registrable Securities has been effected pursuant
to this Agreement, and each underwriter, if any, and each person who controls
each such underwriter (collectively, "Holder Indemnitees"), against all claims,
losses, damages or liabilities (or actions in respect thereof) to the extent
such claims, losses, damages or liabilities arise out of or are based upon any
untrue statement (or alleged untrue statement) of a material fact contained in
any prospectus or other document (including any related Registration Statement)
incident to any such Registration, qualification or compliance, or are based on
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
any violation by the Company of any title or regulation promulgated under the
Securities Act applicable to the Company and relating to action or inaction
required of the Company in connection with any such Registration, qualification
or compliance, and the Company will reimburse each such Holder Indemnitee, for
any legal and any other expenses reasonably incurred in connection with
investigating or defending any such claim, loss, damage, liability or action;
provided, however, that the indemnity contained in this Section 2.6(a) shall not
apply to amounts paid in settlement of any such claim, loss, damage, liability
or action if settlement is effected without the consent of the Company (which
consent shall not unreasonably be withheld); and provided, further, that the
Company will not be liable in any such case to the extent that any such claim,
loss, damage, liability or expense arises out of or is based upon any untrue
statement or omission based upon written information furnished to the Company by
such Holder Indemnitee about such Holder Indemnitee for use in connection with
the offering of securities of the Company.
(b) Holders' Indemnification of Company. To the extent permitted by
law, each Holder will, if Registrable Securities held by such Holder are
included in the securities as to which such Registration, qualification or
compliance is being effected pursuant to this Agreement, indemnify the Company,
each of its directors and officers, each legal counsel and independent
accountant of the Company, each underwriter, if any, of the Company's securities
covered by such a Registration Statement, each person who controls the Company
or such underwriter within the meaning of the Securities Act, and each other
such Holder, each of its officers, directors, managers and constituent partners
and members and each person controlling such other Holder (collectively,
"Company Indemnitees"), against all claims, losses, damages and liabilities (or
actions in respect thereof) arising out of or based upon any untrue statement
(or alleged untrue statement) of a material fact obtained from such Holder and
contained in any such Registration Statement, prospectus, offering circular or
other document, or 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 any violation by such Holder of any rule or
regulation promulgated under the Securities Act applicable to such Holder and
relating to action or inaction required of such Holder in connection with any
such Registration, qualification or compliance; and will reimburse the Company
Indemnitees for any legal and any other expenses reasonably incurred in
connection with investigating or defending any such claim, loss, damage,
liability or action, in each case to the extent, but only to the extent, that
such untrue statement (or alleged untrue statement) or omission (or alleged
omission) is made in such registration statement, prospectus, offering circular
or other document in reliance upon and in conformity with written information
furnished to the Company by such Holder about such Holder and stated to be
specifically for use in connection with the offering of securities of the
Company, provided, however, that each Holder's liability under this Section
2.6(b) shall not exceed such Holder's proceeds from the offering of securities
made in connection with such Registration net of any reasonably determined
selling expenses for the account of such Holder.
(c) Indemnification Procedure. Promptly after receipt by an
indemnified party under this Section 2.6 of notice of the commencement of any
action, such indemnified party will, if a claim in respect thereof is to be made
against an indemnifying party under this Section 2.6, notify the indemnifying
party in writing of the commencement thereof and generally summarize such
action. The indemnifying party shall have the right to participate in and to
assume the defense of such claim; provided, however, that the indemnifying party
shall be entitled to select counsel for the defense of such claim with the
approval of any parties entitled to indemnification, which approval shall not be
unreasonably withheld; provided further, however, that if either party
reasonably determines that there may be a conflict between the position of the
indemnifying party and the indemnified party in conducting the defense of such
action, suit or proceeding by reason of recognized claims for indemnity under
this Section 2.6, then counsel for such party shall be entitled to conduct the
defense to the extent reasonably determined by such counsel to be necessary to
protect the interest of such party. The failure to notify an indemnifying party
promptly of the commencement of any such action, if prejudicial to the ability
of the indemnifying party to defend such action, shall relieve such indemnifying
party, to the extent so prejudiced, of any liability to the indemnified party
under this Section 2.6, but the omission so to notify the indemnifying party
will not relieve such party of any liability that such party may have to any
indemnified party otherwise other than under this Section 2.6.
2.7 Limitations on Registration Rights Granted to Other Securities. From
and after the date of this Agreement, without the consent of the Holders of at
least (i) a majority of the Series E Registrable Securities, voting as a
separate single class on the basis of one vote for each share of Series E
Preferred Stock then outstanding, (ii) the Holders of at least 66 2/3% of the
Series F Registrable Securities, voting as a separate single class on the basis
of one vote for each share of Series F Preferred Stock then outstanding, and
(iii) the Holders of at least 60% of the Series G Registrable Securities, voting
as a separate single class on the basis of one vote for each share of Series G
Preferred Stock then outstanding, the Company shall not enter into any agreement
with any holder or prospective holder of any securities of the Company providing
for the granting to such holder of any Registration rights except Registration
rights that are either subordinate or equivalent in all respects to those
granted under this Agreement. In the case of such equivalent rights, such
additional holders shall be added as parties to this Agreement with regard to
any or all securities of the Company held by them as to which Registration
rights are granted. Any such additional parties shall execute a counterpart of
this Agreement, and upon execution by such additional parties and by the
Company, shall be considered a Holder for all purposes of this Agreement. The
additional parties and the additional securities that shall be deemed to be
Registrable Securities hereunder shall be identified in such amendment.
2.8 Transfer of Rights. The right to cause the Company to Register
securities granted by the Company to the Holders under Sections 2.1 and 2.2 may
be assigned by any Holder to a transferee or assignee of any Restricted
Securities or Registrable Securities not previously sold to the public;
provided, however, that (a) the Company must receive written notice at the time
of said transfer, stating the name and address of said transferee or assignee
and identifying the securities with respect to which such rights are being
assigned, and (b) the transferee or assignee of such rights must not be a person
deemed by the Board, in its best judgment, to be a competitor of the Company.
2.9 Market Stand-off. The Holders hereby agree that, if so requested by
the Company and the Underwriter's Representative (if any), no Holder shall sell
or otherwise transfer any Registrable Securities or other securities of the
Company during the ninety (90) day period following the effective date of a
Registration Statement of the Company filed under the Securities Act (provided
that if so required in writing by the underwriter(s) of the offering to which
such Registration Statement relates, such 90-day period may be extended to a
period not to exceed the greater of (a) the length of the lock-up period imposed
on members of senior management of the Company in connection with such offering
or (b) one hundred eighty (180) days) provided that such restriction shall only
apply to the first two (2) Registration Statements of the Company to become
effective which include securities to be sold on behalf of the Company to the
public in an underwritten offering.
2.10 No Action Letter in Lieu of Registration; Conversion of Preferred
Stock. Notwithstanding anything else in this Agreement to the contrary, if the
Company shall have obtained from the Commission a "no-action" letter addressed
to the Company in which the Commission has indicated that it will take no action
if, without Registration under the Securities Act, any Holder disposes of
Registrable Securities covered by any request for Registration made under this
Agreement in the specific manner in which such Holder proposes to dispose of the
Registrable Securities included in such request (such as including, without
limitation, the
inclusion of such Registrable Securities in an underwriting initiated by either
the Company or the Holders), the shares included in such request shall not be
eligible for Registration under this Agreement; provided, however, that any
Registrable Securities not so disposed of shall be eligible for Registration in
accordance with the terms of this Agreement with respect to other proposed
dispositions to which this Section 2.10 does not apply. The Registration rights
of the Holders of the Convertible Securities set forth in this Agreement are
conditioned upon the conversion of the shares of Convertible Securities with
respect to which Registration is sought into Common Stock on or before the
effective date of the Registration Statement. The Registration rights of the
Holders of the Xxxxxx Warrant set forth in this Agreement are conditioned upon
the exercise of the Xxxxxx Warrant in accordance with their terms and the
conversion of the shares of Series E Preferred Stock received by such Holders
upon such exercise with respect to which Registration is sought into Common
Stock on or before the effective date of the Registration Statement.
2.11 Sale of Convertible Securities to Underwriter. Notwithstanding any
provision in this Agreement to the contrary, in lieu of converting any
Convertible Securities prior to the effective date of any Registration Statement
filed pursuant to this Agreement, the holder of such Convertible Securities may
sell such Convertible Securities to the underwriters of the offering being
Registered upon the undertaking of such underwriters to convert the Convertible
Securities on or prior to the closing date of the offering. The Company agrees
to cause the Common Stock issuable on the conversion of the Convertible
Securities to be issued within such time period as will permit the underwriters
to make and complete the distribution contemplated by the underwriting.
2.12 Rule 144 Requirements. Immediately after the date on which a
Registration Statement filed by the Company under the Securities Act becomes
effective, the Company shall undertake to make publicly available, and available
to the Holders of Registrable Securities, such information as is necessary to
enable the holders of Registrable Securities to make sales of Registrable
Securities pursuant to Rule 144 of the Commission under the Securities Act. The
Company shall furnish to any holder of Registrable Securities, upon request, a
written statement executed by the Company as to the steps it has taken to comply
with the current public information requirements of Rule 144.
2.13 Termination of Company Agreements. The Registration rights set forth
in Sections 2.1 and 2.2 shall terminate seven (7) years after the effective date
of the Company's Registration Statement filed in connection with the Company's
first Qualified Public Offering or, as to any Holder that is not an "affiliate"
of the Company (as such term is defined in Rule 144), at any time following the
effective date of the Company's first Qualified Public Offering when such Holder
is entitled to sell all of such Holder's Registrable Securities (without any
limitation on the volume of sales) pursuant to Rule 144(k) of the Commission
under the Securities Act.
ARTICLE III
Voting Agreements and Certain Rights of
Holders of Series E, Series F and Series G Preferred Stock
3.1 Election of Members of Board of Directors. Pursuant to the Company's
Certificate of Incorporation, Holders of Series E Preferred Stock and Series F
Preferred Stock, voting together as a separate single class, on the basis of one
vote for each share of Series E Preferred Stock and Series F Preferred Stock
then outstanding, have the right to elect six (6) directors out of nine (9) of
the Board, provided, however, if the Company has not consummated a Qualified
Public Offering on or before September 7, 2000, then (x) the number of members
of the Board shall be eleven (11); and (y) the Holders of (i) Series E Preferred
Stock and Series F Preferred Stock, voting together as a separate single class,
on the basis of one vote for each share of Series E Preferred Stock and Series F
Preferred Stock then outstanding, shall have the right to elect six of the
eleven directors, and (ii) Series G Preferred Stock, voting as a separate single
class, on the basis of one vote for each share of Series G Preferred Stock then
outstanding, shall have the right to elect one of the eleven directors. Each
Holder of Series E Preferred Stock and Series F Preferred Stock voting together
as a single class, agrees that, until such time as a Qualified Public Offering,
it shall vote to elect, as one of the directors that Holders of Series E
Preferred Stock and Series F Preferred Stock voting together as a single class
are entitled to elect, (a) the individual that serves as Chief Executive Officer
of the Company from time to time, (b) any individual nominated for election to
the Board of Directors of the Company by a Significant Holder, (c) any
individual nominated for election to the Board of Directors of the Company by
SCP (but only for so long as SCP and CIP Capital L.P. and their affiliates
continue to own Series E Preferred Stock with an aggregate Stated Value of at
least $3,000,000); (d) any individual nominated for election to the Board of
Directors of the Company by Xxxxx (but only for so long as Fostin Capital
Associates II and Xxxxx and their affiliates continue to own Series E Preferred
Stock with an aggregate Stated Value of at least $3,000,000); and (e) any
individual nominated for election to the Board of Directors of the Company by
Tandem PCS Investments, L.P. ("Tandem Designee") (but only for so long as Tandem
and its affiliates continue to own Series F Preferred Stock with an aggregate
Stated Value of at least $3,000,000). This Section 3.1 shall terminate upon the
consummation of a Qualified Public Offering.
3.2 Board Visitation Rights of Significant Holders. Until such time as a
Significant Holder chooses to nominate a member of the Board of Directors of the
Company as provided in Section 3.1, each Significant Holder shall have the
right, at its option exercised by written notice to the Company, to (a) require
the Company to give it reasonable advance written notice of all meetings of the
Board, (b) obtain on a confidential basis copies of all materials distributed to
members of the Board, and (c) have a representative of the Significant Holder
observe, but not participate in, meetings of the Company's Board.
3.3 Board Visitation Rights of Significant Investor. So long as the
Holders who are Affiliates of the Significant Investor hold at least 50%, in the
aggregate, of the Series G Preferred Stock issued by the Company to such Holders
on the date hereof, the Significant Investor shall have the right, at its option
exercised by written notice to the Company, to (a) require the Company to give
it reasonable advance written notice of all meetings of the Board, (b) obtain on
a confidential basis copies of all materials distributed to members of the
Board, and (c) have a representative appointed by it observe, but not
participate in, meetings of the Company's Board.
3.4 Other Voting Agreements. So long as there exists a Significant
Holder, Holders of Series E Preferred Stock shall not waive any right that may
be waived by, or vote in favor of any matter that requires the affirmative vote
of (i) sixty percent (60%) of the voting power of the then outstanding Series E
Preferred Stock, or (ii) sixty percent (60%) of the voting power of the then
outstanding Series E Preferred Stock, Series F Preferred Stock and Series G
Preferred Stock, voting together as a single class, unless such waiver or
affirmative vote is consented to in writing by each Significant Holder.
3.5 Agreement Binding on Transferees. In the event of any transfer of
shares of any Senior Preferred Stock or Registrable Securities, the transferee
shall become party to this Agreement, shall agree to perform all of the
obligations of the transferring party and shall execute, acknowledge and deliver
to the Company and each Significant Holder, if any, such instruments of
transfer, assignment and assumption of such other certificates, representations,
and documents and shall perform all other acts that the Company may deem
necessary or desirable, to confirm that the transferee has accepted, assumed,
and agreed to be subject to, all of the terms, obligations and conditions of
this Agreement. The Company shall refuse to record on its stock transfer records
any transfer of any Senior Preferred Stock or Registrable Securities that does
not comply with this Section 3.5.
3.6 Pre-Emptive Rights. Article IV.C.9 of the Company's Certificate of
Incorporation provides that the holder of the Xxxxxx Warrant shall have the same
pre-emptive rights as holders of Series E Preferred Stock. Each Holder of Series
E Preferred Stock acknowledges and agrees to the existence of such pre-emptive
rights, which have the effect of reducing the pre-emptive rights such Holders
would otherwise have prior to exercise of the Xxxxxx Warrant for Series E
Preferred Stock.
3.7 Further Assurances. The Company and each party to this Agreement
shall take such steps as may be necessary, in the judgment of the Company or any
Significant Holder, to ensure that the rights intended to be conferred by this
Article III shall be enforceable and implemented as provided herein.
3.8 Legends. So long as this Agreement shall remain in effect, all
certificates representing outstanding shares of Series E Preferred Stock and
Series F Preferred Stock shall be endorsed with substantially the following
legend (such legend has previously been or is simultaneously with the execution
hereof being endorsed on the certificates representing the shares of Series E
and Series F Preferred Stock to be issued on the date hereof):
The shares represented by this certificate, and all rights
represented by such shares, are subject to, and restricted by,
the terms of an Agreement Among Series E and Series F Preferred
Stockholders and Senior Registration Rights Agreement (the
"Agreement") between the Company and certain of its stockholders,
as the same may be amended from time to time, a copy of which
Agreement is
on file at the principal office of the Company and will be
provided to stockholders upon request and without charge. The
Agreement includes, among other things, certain voting
agreements among holders of the Series E and Series F
Preferred Stock. Any person that wishes to become the owner of
this certificate or the shares which it represents, or to
obtain any interest in such certificate or shares, shall agree
to become bound by the provisions by the Agreement.
So long as this Agreement shall remain in effect, all certificates
representing outstanding shares of Series G Preferred Stock shall be endorsed
with substantially the following legend (such legend has previously been or is
simultaneously with the execution hereof being endorsed on the certificates
representing the shares of Series G Preferred Stock to be issued on the date
hereof):
The shares represented by this certificate, and all rights
represented by such shares, are subject to, and restricted by,
the terms of a Second Amended and Restated Agreement Among
Series E, Series F and Series G Preferred Stockholders and
Senior Registration Rights Agreement (the "Agreement") between
the Company and certain of its stockholders, as the same may
be amended from time to time, a copy of which Agreement is on
file at the principal office of the Company and will be
provided to stockholders upon request and without charge. The
Agreement includes, among other things, certain voting
agreements among holders of the Company's Series E Preferred
Stock, the Series F Preferred Stock and the Series G Preferred
Stock. Any person that wishes to become the owner of this
certificate or the shares which it represents, or to obtain
any interest in such certificate or shares, shall agree to
become bound by the provisions by the Agreement.
3.9 Purchase of Employee Shares. So long as the Holders who are
Affiliates of the Significant Investor hold at least 50%, in the aggregate, of
the Series G Preferred Stock issued by the Company to such Holders on the date
hereof, except for repurchases by the Company of the Company's equity securities
held by employees of the Company (collectively, "Employee Shares") pursuant to
(a) the Company's exercise of its rights of first refusal, or (b) the
termination for cause of an employee of the Company, the Company shall not
repurchase any Employee Shares for an aggregate purchase price in excess of
$100,000 in any calendar year without the prior written consent of the holders
of at least sixty percent (60%) of the Series G Preferred Stock outstanding
immediately prior to such repurchase.
ARTICLE IV
Agreement Conventions
4.1 Independent Contractor. Each party hereto is an independent contractor,
and nothing contained in this Agreement shall be construed to be inconsistent
with this relationship or status. Nothing in this Agreement shall be in any way
construed to constitute any party as the agent, employee, or representative of
the other. As an independent contractor, each party has relied on its own
expertise or the expertise of its legal, financial, technical of other advisors.
4.2 No Partnership or Joint Venture Intended. The parties expressly do not
intend hereby to form a partnership under any state partnership or limited
partnership act or a joint venture. The parties do not intend to be partners or
joint venturers with one another, or partners or joint venturers as to any third
party. No party owes a fiduciary duty to the others.
4.3 No Other Duties. The only duties and obligations of the parties are as
specifically set forth in this Agreement, and no other duties or obligations
shall be implied in fact, law or equity, or under any principle of fiduciary
obligation.
4.4 Reliance on Counsel and Other Advisors. Each party has consulted such
legal, financial, technical or other expert as it deems necessary or desirable
before entering into this Agreement. Each party represents and warrants that it
has read, knows, understands and agrees with the terms and conditions of this
Agreement.
4.5 Notices. All notices, requests, consents and other communications
required or permitted under this Agreement shall be in writing (including telex,
telecopy and telegraphic communication) and shall be (as elected by the person
giving such notice) hand delivered by messenger or courier service,
telecommunicated, or mailed (airmail if international) by registered or
certified mail (postage prepaid), return receipt requested, addressed to the
parties as specified below:
If to the Company: AirNet Communications Corporation
000 Xxxxxx Xxxxx, Xxxxx 000
Xxxxxxxxx, XX 00000
Attention: President and CEO
Facsimile: (000) 000-0000
With a copy to: Xxxxxxx & Xxxxxx, LLP
000 Xxxxx Xxxx Xxx, Xxxxx 000
Xxxx Xxxxx, XX 00000
Attention: Xxxx X. Xxxx
Facsimile: (000) 000-0000
If to Xxxxxx: Xxxxxx Corporation
0000 X. XXXX Xxxxxxxxx
Xxxxxxxxx, XX 00000
Attention: Corporate Secretary
Facsimile: (000) 000-0000
If to the Holders: To their address in the stock
records of the Company.
The Company will provide such addresses to any Holder upon written request if
the request is for the purpose of sending notices to the Holders under this
Agreement, or to such other address as any party may designate by notice
complying with the terms of this Section 4.5. Each such notice shall be deemed
delivered: (a) on the date delivered if by personal delivery; (b) on the date of
transmission with confirmed answer back if by telex, telecopy or other
telegraphic communication; and (c) on the date upon which the return receipt is
signed or delivery is refused or the notice is designated by the postal
authorities as not deliverable, as the case may be, if mailed.
4.6 Governing Law. This Agreement shall in all respects be governed by, and
construed in accordance with, the laws (excluding conflict of laws rules and
principles) of the State of Delaware applicable to agreements made and to be
performed entirely within such State, including all matters of construction,
validity and performance.
4.7 Entire Agreement. This Agreement constitutes the entire agreement of
the parties relating to the subject matter hereof and supersedes all prior
contracts or agreements, whether oral or written. There are no representations,
agreements, arrangements or understandings, oral or written, between or among
the parties relating to the subject matter of this Agreement which are not fully
expressed in this Agreement.
4.8 Severability. Should any provision of this Agreement or the application
thereof to any person or circumstance be held invalid or unenforceable to any
extent: (a) such provision shall be ineffective to the extent, and only to the
extent, of such unenforceability or prohibition and shall be enforced to the
greatest extent permitted by law; (b) such unenforceability or prohibition in
any jurisdiction shall not invalidate or render unenforceable such provision as
applied (i) to other persons or circumstances or (ii) in any other jurisdiction;
and (c) such unenforceability or prohibition shall not affect or invalidate any
other provision of this Agreement.
4.9 Amendment. Neither this Agreement nor any of the terms hereof may be
terminated, amended, supplemented or modified orally, but only by an instrument
in writing. Except as otherwise expressly provided herein, this Agreement may be
amended, modified and its provisions may be waived only in a writing by Holders
who are then a party to this Agreement holding at least 75% of the aggregate
number of shares of Common Stock issued or issuable upon conversion of any of
the Convertible Securities (including any securities of the Company deemed to be
Registrable Securities as provided in Section 2.7 of this Agreement), other than
Common Stock sold pursuant to a Registration Statement, provided that a copy of
any such
amendment shall be mailed to each Holder who is then a party to this Agreement;
provided further no amendment, modification or waiver which materially adversely
affects the rights of less than all of the Holders shall be valid unless
approved in writing by all Holders who are then a party to this Agreement;
provided further that no amendment, modification or waiver which adversely
affects the rights of Significant Holders shall be valid unless approved in
writing by all Significant Holders who are then a party to this Agreement;
provided further that no amendment, modification or waiver which adversely
affects the rights of holders of Series F Preferred Stock or Series F
Registrable Securities shall be valid unless approved in writing by holders of
sixty-six and two-thirds percent (66-2/3%) of the Series F Registrable
Securities voting as a separate single class on the basis of one vote for each
share of Series F Registrable Securities then outstanding.
4.10 Effect of Waiver or Consent. No waiver or consent, express or implied,
by any person to or of any breach or default by any party in the performance by
such party of its obligations hereunder shall be deemed or construed to be a
consent or waiver to or of any other breach or default in the performance by
such party of the same or any other obligations of such party hereunder. No
single or partial exercise of any right or power, or any abandonment or
discontinuance of steps to enforce any right or power, shall preclude any other
or further exercise thereof or the exercise of any other right or power. Failure
on the part of a party to complain of any act of any party or to declare any
party in default, irrespective of how long such failure continues, shall not
constitute a waiver by such person of its rights hereunder until the applicable
statute of limitation period has run.
4.11 Rights and Remedies Cumulative. The rights and remedies provided by
this Agreement are cumulative, and the use of any one right or remedy by any
party shall not preclude or waive the right to use any or all other remedies.
Such rights and remedies are given in addition to any other rights the parties
may have under applicable Law or otherwise.
4.12 Successors and Assigns. Each and all of the covenants, terms,
provisions, and agreements contained in this Agreement shall be binding upon,
and inure to the benefit of the parties hereto and their successors and assigns.
4.13 Limitation on Rights of Others. Nothing in this Agreement, whether
expressed or implied, shall be construed to give any Person (other than the
parties hereto and their respective permitted successors and assigns and as
expressly provided herein) any legal or equitable right, remedy or claim under
or in respect of this Agreement or any covenants, conditions or provisions
contained herein, as a third party beneficiary or otherwise.
4.14 Facsimiles. For purposes of this Agreement, any copy, facsimile
telecommunication or other reliable reproduction of a writing, transmission or
signature may be substituted or used in lieu of the original writing,
transmission or signature for any and all purposes for which the original
writing, transmission or signature could be used, provided that such copy,
facsimile telecommunication or other reproduction shall be a complete
reproduction of the entire original writing, transmission or signature, as the
case may be.
4.15 Counterparts. This Agreement may be executed in any number of
counterparts with the same effect as if all signatory parties had signed the
same document. All counterparts shall be construed together and shall constitute
one and the same instrument. In the event that any stockholder who acquires any
shares of Senior Preferred Stock or Registrable Securities after the date hereof
shall be required and permitted to become a party to this Agreement, such
stockholder may do so by executing a counterpart signature page to this
Agreement and, with the acknowledgment of the Company on such counterpart
signature page, such stockholder shall be deemed a Holder under the Agreement.
The Company shall deliver written notice of the purchase of any shares of Senior
Preferred Stock or Registrable Securities after the date hereof by a new Holder
to the other Holders within thirty (30) days of the execution of this Agreement
by such new Holder by delivering a copy of the executed and acknowledged
counterpart and signature page to this Agreement, reflecting ownership by each
Holder who is then a party to this Agreement.
4.16 Effective Date. This Agreement will become effective only upon the
closing of the sale by the Company of shares of Series G Preferred Stock.
4.17 Headings, Etc. The words "hereof", "herein" and "hereunder" and words
of similar import when used in this Agreement shall refer to this Agreement as a
whole and not to any particular provision of this Agreement. All references as
to "Sections", "Articles", "Schedules" and "Exhibits" shall be to Section,
Articles, Schedules and Exhibits, respectively, of this Agreement unless
otherwise specifically provided.
4.18 Consents. By executing this Agreement each party hereto that is a
party to the Second Restated Agreement acknowledges and agrees that such
execution shall constitute such party's consent, and waiver of any objections,
to the terms and provisions of this Agreement as required by the Second Restated
Agreement, including, without limitation, Section 4.9 thereof.
4.19 Restated Agreement. This Agreement amends and restates the Restated
Agreement in its entirety and effective as of the date hereof the Restated
Agreement shall be of no further force or effect.
[Remainder of page intentionally left blank.]
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
and delivered by their duly authorized officers or agents as of the date first
above written.
AIRNET COMMUNICATIONS CORPORATION
By:________________________________________
R. Xxx Xxxxxxxx, Xx.
President and Chief Executive Officer
SIGNATURE PAGE TO
SECOND AMENDED AND RESTATED AGREEMENT
AMONG SERIES E, SERIES F AND SERIES G PREFERRED STOCKHOLDERS
AND SENIOR REGISTRATION RIGHTS AGREEMENT
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
and delivered by their duly authorized officers or agents as of the date first
above written.
INVESTOR:
SCP Private Equity Partners II, L.P.
____________________________________________
Print Name of Investor
By: SCP Private Equity Partner II General
Partner, L.P., its General Partner
By: SCP Private Equity II, LLC, its Manager
By:_________________________________________
Signature of Person Signing
Name:_______________________________________
Print Name of Person Signing
Title: A Manager
--------------------------------------
Date: May , 2001
--------------------------------------
* Pursuant to Section 2.7 of this Agreement, the Investor is hereby added as a
party to this Agreement with respect to the Common Stock issuable upon (i) the
conversion of the Company's Series B Convertible Preferred Stock, par value $.01
per share, purchased by the Investor pursuant to that certain Securities
Purchase Agreement of even date herewith among the Company, the Investor and
certain other parties (the "Purchase Agreement") and (ii) the exercise of the
Common Stock Purchase Warrant issued to the Investor pursuant to the Purchase
Agreement (such issuable Common Stock is hereinafter collectively referred to as
the "Investor's Series B Securities"), as to which registration rights
equivalent to the rights granted hereunder were granted to the Investor under
the Purchase Agreement. Accordingly, pursuant to Section 2.7 of this Agreement,
the Investor's Series B Securities are deemed to be Registrable Securities under
this Agreement.
SIGNATURE PAGE TO
SECOND AMENDED AND RESTATED AGREEMENT
AMONG SERIES E, SERIES F AND SERIES G PREFERRED STOCKHOLDERS
AND SENIOR REGISTRATION RIGHTS AGREEMENT
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
and delivered by their duly authorized officers or agents as of the date first
above written.
INVESTOR:
Tandem PCS Investments, L.P.
--------------------------------------------
Print Name of Investor
By: Live Cycles Holding Co., its General
Partner
By:_________________________________________
Signature of Person Signing
Name: Xxxxxx Xxxxxxxx, Vice President
---------------------------------------
Print Name & Title of Person Signing
By:_________________________________________
Signature of Person Signing
Name: Xxxx XxXxxxxx, Director
---------------------------------------
Print Name & Title of Person Signing
Date: May , 2001
---------------------------------------
* Pursuant to Section 2.7 of this Agreement, the Investor is hereby added as a
party to this Agreement with respect to the Common Stock issuable upon (i) the
conversion of the Company's Series B Convertible Preferred Stock, par value $.01
per share, purchased by the Investor pursuant to that certain Securities
Purchase Agreement of even date herewith among the Company, the Investor and
certain other parties (the "Purchase Agreement") and (ii) the exercise of the
Common Stock Purchase Warrant issued to the Investor pursuant to the Purchase
Agreement (such issuable Common Stock is hereinafter collectively referred to as
the "Investor's Series B Securities"), as to which registration rights
equivalent to the rights granted hereunder were granted to the Investor under
the Purchase Agreement. Accordingly, pursuant to Section 2.7 of this Agreement,
the Investor's Series B Securities are deemed to be Registrable Securities under
this Agreement.
SIGNATURE PAGE TO
SECOND AMENDED AND RESTATED AGREEMENT
AMONG SERIES E, SERIES F AND SERIES G PREFERRED STOCKHOLDERS
AND SENIOR REGISTRATION RIGHTS AGREEMENT
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
and delivered by their duly authorized officers or agents as of the date first
above written.
INVESTOR:
Mellon Ventures, L.P.
--------------------------------------------
Print Name of Investor
By: MVMA, L.P., its General Partner
By: MVMA, Inc., its General Partner
By:_________________________________________
Signature of Person Signing
Name: Xxxxxx X. Xxxxx
---------------------------------------
Print Name of Person Signing
Title: Associate
--------------------------------------
Date: May , 2001
--------------------------------------
* Pursuant to Section 2.7 of this Agreement, the Investor is hereby added as a
party to this Agreement with respect to the Common Stock issuable upon (i) the
conversion of the Company's Series B Convertible Preferred Stock, par value $.01
per share, purchased by the Investor pursuant to that certain Securities
Purchase Agreement of even date herewith among the Company, the Investor and
certain other parties (the "Purchase Agreement") and (ii) the exercise of the
Common Stock Purchase Warrant issued to the Investor pursuant to the Purchase
Agreement (such issuable Common Stock is hereinafter collectively referred to as
the "Investor's Series B Securities"), as to which registration rights
equivalent to the rights granted hereunder were granted to the Investor under
the Purchase Agreement. Accordingly, pursuant to Section 2.7 of this Agreement,
the Investor's Series B Securities are deemed to be Registrable Securities under
this Agreement.
SIGNATURE PAGE TO
SECOND AMENDED AND RESTATED AGREEMENT
AMONG SERIES E, SERIES F AND SERIES G PREFERRED STOCKHOLDERS
AND SENIOR REGISTRATION RIGHTS AGREEMENT
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
and delivered by their duly authorized officers or agents as of the date first
above written.
INVESTOR*
TECORE, Inc.
--------------------------------------------
Print Name of Investor
By: Xxx X. Xxxxxxx
-----------------------------------------
Signature of Person Signing
Name: Xxx X. Xxxxxxx
---------------------------------------
Print Name of Person Signing
Its: President
---------------------------------------
Date: August 13, 2003
---------------------------------------
* Pursuant to Section 2.7 of this Agreement, the Investor is hereby added as a
party to this Agreement with respect to the Common Stock issued to it (a) as a
result of the conversion of its shares of the Company's Series B Convertible
Preferred Stock, par value $0.01 per share on the date hereof; and (b) upon the
conversion of all or any portion of a Senior Secured Convertible Note issued by
the Company to the Investor pursuant to that certain Securities Purchase
Agreement of even date herewith among the Company, the Investor and SCP Private
Equity Partners II, L.P. (all such issued and issuable Common Stock is
hereinafter collectively referred to as the "Investor's Securities"). Pursuant
to Section 2.7 of this Agreement, the Investor's Securities are deemed to be
Registrable Securities under this Agreement.
[SIGNATURE PAGE TO REGISTRATION RIGHTS AGREEMENT]
EXHIBIT A
TO SECOND AMENDED AND RESTATED AGREEMENT
AMONG SERIES E, SERIES F AND SERIES G PREFERRED STOCKHOLDERS AND
SENIOR REGISTRATION RIGHTS AGREEMENT
Series E Preferred Stockholders
Total number of shares outstanding on a fully diluted basis: 554,854,075
-------------------------------------------------------------------------------------------------------
Name Number of Shares Held
-------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------
Xxxxxx Corporation 123,526,667/1/
-------------------------------------------------------------------------------------------------------
HVFM-I, L.P. 70,185,606
By: Venture First Associates of Melbourne, Inc., its General Partner
-------------------------------------------------------------------------------------------------------
FOSTIN CAPITAL ASSOCIATES II 14,037,121
By: Fostin Capital Partner, II, its General Partner
-------------------------------------------------------------------------------------------------------
THE P/A FUND, L.P. 28,074,243
By: APA Pennsylvania Partners, II, its General Partner
-------------------------------------------------------------------------------------------------------
CIN VENTURES NOMINEES LTD. 2,021,345
By: Patricof & Co., Investment Manager
-------------------------------------------------------------------------------------------------------
APA EXCELSIOR III, L.P. 39,191,643
By: APA Excelsior III, its General Partner
-------------------------------------------------------------------------------------------------------
XXXXXX & CO. (JERSEY) LTD. C/F APA EXCELSIOR III/OFFSHORE, L.P. 14,935,497
By: APA Excelsior III Partners, L.P., its General Partner
-------------------------------------------------------------------------------------------------------
XXXXX CAPITAL MANAGEMENT, L.P. 70,185,606
By: ACM Capital Partners II, L.P., its General Partner
-------------------------------------------------------------------------------------------------------
SCP PRIVATE EQUITY PARTNERS, L.P. 140,371,213
By: SCP Private Equity Management, L.P., its General Partner
-------------------------------------------------------------------------------------------------------
CIP CAPITAL L.P. 7,018,561
By: CIP Management Inc., its General Partner
-------------------------------------------------------------------------------------------------------
Xxxxxx Asset Management 693,891
-------------------------------------------------------------------------------------------------------
Xxxxxx X. Xxxxx Living Trust utd 9/5/86 as amended 5/30/97 1,942,895
-------------------------------------------------------------------------------------------------------
Xxxx Xxxx 460,939
-------------------------------------------------------------------------------------------------------
Xxxx Xxxx Delaware Charter and Guarantee XXX Rollover 94,841
-------------------------------------------------------------------------------------------------------
Xxxxxxx X. Xxxxx 1,436,929
-------------------------------------------------------------------------------------------------------
Xxxx Partners 1,906,382
-------------------------------------------------------------------------------------------------------
_____________________
/1/ 11,229,697 of these shares are subject to the exercise of warrants therefor.
-------------------------------------------------------------------------------------------------------
Xxxxxxx X. Xxxxxxx 578,093
-------------------------------------------------------------------------------------------------------
Xxxxx X. Xxxxxxx 346,945
-------------------------------------------------------------------------------------------------------
Xxxxxx X. Xxxxxxx, TTEE, UAD 2/22/88 for the Xxxxxx X. Xxxxxxx Trust 1,612,018
-------------------------------------------------------------------------------------------------------
Xxxx X. Xxxxxxxx 1,156,187
-------------------------------------------------------------------------------------------------------
Xxxx X. Xxx 1,541,258
-------------------------------------------------------------------------------------------------------
Xxxxxx Investors IV 1,500,000
-------------------------------------------------------------------------------------------------------
Xxxxxx X. Xxxxxx 561,485
-------------------------------------------------------------------------------------------------------
Xxxxxxx Xxxxxxx 826,473
-------------------------------------------------------------------------------------------------------
St. Claire Investments, L.P. 1,574,987
-------------------------------------------------------------------------------------------------------
Xxxxxxx X. Xxxxxxxxxx 1,156,187
-------------------------------------------------------------------------------------------------------
Tampsco II Partnership 245,611
-------------------------------------------------------------------------------------------------------
Xxxxxx University 448,544
-------------------------------------------------------------------------------------------------------
Matrix Technology Group NV 428,896
-------------------------------------------------------------------------------------------------------
Rochester Institute of Technology 1,319,931
-------------------------------------------------------------------------------------------------------
Yale University 2,969,938
-------------------------------------------------------------------------------------------------------
Yale University Retirement Plan for Staff Employees 294,138
-------------------------------------------------------------------------------------------------------
Foundation Partners 446,647
-------------------------------------------------------------------------------------------------------
Sci-Tech Investment Partners LP 696,894
-------------------------------------------------------------------------------------------------------
SG Partners LP 1,724,858
-------------------------------------------------------------------------------------------------------
Executive Technology LP 506,319
-------------------------------------------------------------------------------------------------------
The Core Technology Fund Inc. 1,470,031
-------------------------------------------------------------------------------------------------------
The Xxxx-XX Corporation 2,003,634
-------------------------------------------------------------------------------------------------------
Prism Partners I 1,685,144
-------------------------------------------------------------------------------------------------------
Communications & Technology Partners 5,614,849
-------------------------------------------------------------------------------------------------------
Xxxxxxxx Xxxxxx 1,122,970
-------------------------------------------------------------------------------------------------------
Xxxxxx X. Xxxxxx 677,437
-------------------------------------------------------------------------------------------------------
Xxxxx X. Xxxxxxxxx 1,001,817
-------------------------------------------------------------------------------------------------------
Xxx X. Xxxx, Trustee, BKP Capital Management 401(k) Profit Sharing 420,296
Plan & Money Purchase Plan dated 1/1/92 f/b/o Xxx X. Xxxx
-------------------------------------------------------------------------------------------------------
Xxxxxxx X. Xxxxx 812,836
-------------------------------------------------------------------------------------------------------
Xxxxxxxx Xxxxx 1,001,817
-------------------------------------------------------------------------------------------------------
Xxxxxxx X. Xxxxxx 1,812,082
-------------------------------------------------------------------------------------------------------
Xxxxxx X. Xxxxx, Trustee of the Xxxxxx X. Xxxxx Living Trust dated 2/8/91 693,891
-------------------------------------------------------------------------------------------------------
Xxxxxx X. Xxxxx 307,926
-------------------------------------------------------------------------------------------------------
Xxxxx X. Xxxxxxxxxxx & Associates, P.C. Pension Plan and Trust 210,557
-------------------------------------------------------------------------------------------------------
EXHIBIT B
TO SECOND AMENDED AND RESTATED AGREEMENT
AMONG SERIES E, SERIES F AND SERIES G PREFERRED STOCKHOLDERS AND
SENIOR REGISTRATION RIGHTS AGREEMENT
Series F Preferred Stockholders
Total number of shares outstanding on a fully diluted basis: 283,471,155
--------------------------------------------------------------------------------------------------------
Name Number of Shares Held
--------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------
Tandem PCS Investments, L.P. 126,661,900
--------------------------------------------------------------------------------------------------------
HVFM-I, L.P. 9,047,279
By: Venture First Associates of Melbourne, Inc., its General Partner
--------------------------------------------------------------------------------------------------------
FOSTIN CAPITAL ASSOCIATES II 2,515,143
By: Fostin Capital Partner, II, its General Partner
--------------------------------------------------------------------------------------------------------
THE P/A FUND, L.P. 18,094,538
By: APA Pennsylvania Partners, II, its General Partner
--------------------------------------------------------------------------------------------------------
CIN VENTURES NOMINEES LTD. 1,152,442
By: Patricof & Co., Investment Manager
--------------------------------------------------------------------------------------------------------
APA EXCELSIOR III, L.P. 21,392,110
By: APA Excelsior III, its General Partner
--------------------------------------------------------------------------------------------------------
XXXXXX & CO. (JERSEY) LTD. C/F APA EXCELSIOR III/OFFSHORE, L.P. 8,152,322
By: APA Excelsior III Partners, L.P., its General Partner
--------------------------------------------------------------------------------------------------------
XXXXX CAPITAL MANAGEMENT, L.P. 27,159,931
By: ACM Capital Partners II, L.P., its General Partner
--------------------------------------------------------------------------------------------------------
SCP PRIVATE EQUITY PARTNERS, L.P. 54,283,672
By: SCP Private Equity Management, L.P., its General Partner
--------------------------------------------------------------------------------------------------------
CIP CAPITAL L.P. 2,714,183
By: CIP Management Inc., its General Partner
--------------------------------------------------------------------------------------------------------
Xxxxxx X. Xxxxx Living Trust utd 9/5/86 as amended 5/30/97 1,284,017
--------------------------------------------------------------------------------------------------------
Xxxx Xxxx, Delaware Charter and Guarantee XXX Rollover 48,155
--------------------------------------------------------------------------------------------------------
Xxxxxxx X. Xxxxx 723,782
--------------------------------------------------------------------------------------------------------
Xxxxxxx X. Xxxxxxx 187,837
--------------------------------------------------------------------------------------------------------
Xxxxx X. Xxxxxxx 114,644
--------------------------------------------------------------------------------------------------------
Xxxxxx X. Xxxxxxx, TTEE, UAD 2/22/88 for the Xxxxxx X. Xxxxxxx Trust 744,092
--------------------------------------------------------------------------------------------------------
Xxxxxx Xxxxxxx 127,384
--------------------------------------------------------------------------------------------------------
Xxxx X. Xxx 1,004,248
--------------------------------------------------------------------------------------------------------
Xxxxxx Investors IV 750,000
--------------------------------------------------------------------------------------------------------
Xxxxxx X. Xxxxxx 693,873
--------------------------------------------------------------------------------------------------------
Bayview Investors Ltd. 1,880
--------------------------------------------------------------------------------------------------------
Xxxxxxx X. Xxxxxxxxxx 574,713
--------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------
Communications & Technology Partners 3,026,100
-------------------------------------------------------------------------------------------------------
Xxxxxx X. Xxxxxx 223,852
-------------------------------------------------------------------------------------------------------
Hofung Holdings Limited 31,520
By: Lions International Management Limited, Sole Director
-------------------------------------------------------------------------------------------------------
Maritime Capital Partners 81,952
-------------------------------------------------------------------------------------------------------
Xxxxxxx X. Xxxxxxx, Trustee of the B.R. Xxxxxxx Trust dated 9/9/91 904,728
-------------------------------------------------------------------------------------------------------
Xxxxxxx X. Xxxxxx 1,437,103
-------------------------------------------------------------------------------------------------------
Xxxxxx X. Xxxxxxx 47,282
-------------------------------------------------------------------------------------------------------
Xxxxx S Lion 90,473
-------------------------------------------------------------------------------------------------------
Xxxxx X. Xxxxxxxxxxx & Associates, P.C. Pension Plan and Trust 200,000
-------------------------------------------------------------------------------------------------------
EXHIBIT C
TO SECOND AMENDED AND RESTATED AGREEMENT
AMONG SERIES E, SERIES F AND SERIES G PREFERRED STOCKHOLDERS AND
SENIOR REGISTRATION RIGHTS AGREEMENT
Series G Preferred Stockholders
Total number of shares outstanding on a fully diluted basis: 230,769,231
-------------------------------------------------------------------------------------------------------
Name Number of Shares Held
-------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------
Xxxxxx Xxxxxxx 180,996
-------------------------------------------------------------------------------------------------------
Xxxxxx Xxxxxxxxx 69,529
-------------------------------------------------------------------------------------------------------
Xxxxxx Corporation 32,710,097
-------------------------------------------------------------------------------------------------------
Xxxxx X. Xxxx 23,957
-------------------------------------------------------------------------------------------------------
Maritime Capital Partners, LP 56,961
-------------------------------------------------------------------------------------------------------
HVFM-I, L.P. 23,402,370
-------------------------------------------------------------------------------------------------------
Communications & Technology Partners 2,379,493
-------------------------------------------------------------------------------------------------------
Bear Xxxxxxx & Co., Custodian for Xxxxxxxx Xxxxxx, XXX 31,346
-------------------------------------------------------------------------------------------------------
Xxxxxxxx Xxxxxx, Individually 297,365
-------------------------------------------------------------------------------------------------------
Xxxxxxx X. Xxxxxxx, Trustee of the B.R. Xxxxxxx 316,355
Trust dated September 9, 1991
-------------------------------------------------------------------------------------------------------
Xxxx X. Xxx 658,610
-------------------------------------------------------------------------------------------------------
Xxxxx Capital Management, L.P. 8,384,964
-------------------------------------------------------------------------------------------------------
SCP Private Equity Partners, L.P. 33,538,725
-------------------------------------------------------------------------------------------------------
APA Excelsior III, L.P. 1,099,641
-------------------------------------------------------------------------------------------------------
Xxxxxx & Co (Jersey), Ltd. Custodian for APA Excelsior III Offshore L.P. 419,058
-------------------------------------------------------------------------------------------------------
The P/A Fund, L.P. 787,695
-------------------------------------------------------------------------------------------------------
CIN Ventures Nominee Ltd. 56,715
-------------------------------------------------------------------------------------------------------
Tandem PCS Investments, L.P. 15,754,057
-------------------------------------------------------------------------------------------------------
Xxxxxx X. Xxxxxx 231,508
-------------------------------------------------------------------------------------------------------
Xxxxxx X. Xxxxxxx 5,412
-------------------------------------------------------------------------------------------------------
Xxxxxx X. Xxxxxxx, Trustee, UAD 2/22/98 for the Xxxxxx X. Xxxxxxx Trust 549,059
-------------------------------------------------------------------------------------------------------
Xxxxx X. Xxxxxxx 71,997
-------------------------------------------------------------------------------------------------------
Xxxxxxx X. Xxxxxxx 131,868
-------------------------------------------------------------------------------------------------------
Xxxxxxx X. Xxxxxxxxxx 594,117
-------------------------------------------------------------------------------------------------------
Xxxxxx Investors IV 161,984
-------------------------------------------------------------------------------------------------------
Xxxxxxx X. Xxxxx 307,022
-------------------------------------------------------------------------------------------------------
Xxxxxx X. Xxxxxx 520,564
-------------------------------------------------------------------------------------------------------
Xxxxxxx Xxxxxx 462,346
-------------------------------------------------------------------------------------------------------
Xxxxxx X. Xxxxx Living Trust u/t/d 9/5/86 as amended 5/31/97, 231,988
Xxxxxx X. Xxxxx, Trustee
-------------------------------------------------------------------------------------------------------
Xxxx X. Xxxxxxxx 84,031
-------------------------------------------------------------------------------------------------------
Delaware Charter and Guarantee Custodian Xxxx Xxxx XXX Rollover 34,546
-------------------------------------------------------------------------------------------------------
Xxxx Partners 332,980
-------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------
Peak Telecommunications Investments, LLC 30,670,437
-------------------------------------------------------------------------------------------------------
Peak Telecommunications Investments II, LLC 16,922,361
-------------------------------------------------------------------------------------------------------
Xxxxxx X. Xxx and Xxx X. Xxx, JTWROS 1,020,000
-------------------------------------------------------------------------------------------------------
CIP Capital L.P. 1,538,462
-------------------------------------------------------------------------------------------------------
Mellon Ventures, L.P. 38,461,538
-------------------------------------------------------------------------------------------------------
Damac Investors Inc. 7,692,308
-------------------------------------------------------------------------------------------------------
Damac Investors (III) Inc. 7,692,308
-------------------------------------------------------------------------------------------------------
Omni Group Holdings Inc. 1,153,692
-------------------------------------------------------------------------------------------------------
GLS Partners 50,000
-------------------------------------------------------------------------------------------------------
Xxxxx Xxxxx 150,000
-------------------------------------------------------------------------------------------------------
Xxxx X. Xxxxx 150,000
-------------------------------------------------------------------------------------------------------
Xxxxxxx X. Xxxxx 150,000
-------------------------------------------------------------------------------------------------------
Xxxxx X. Xxxxxxxxxxx, III and Xxxxxx X. Xxxxxxxxxxx, JTWROS 153,846
-------------------------------------------------------------------------------------------------------
Xxxxxx X. Xxxxx Living Trust u/t/d 9/5/86 as amended 5/31/97 1,000,000
-------------------------------------------------------------------------------------------------------
Xxxxxx Xxxxxxx 76,923
-------------------------------------------------------------------------------------------------------
TOTAL: 230,769,231
-------------------------------------------------------------------------------------------------------
2
