EXHIBIT 10.69
MTH STOCK PURCHASE AGREEMENT
THIS MTH STOCK PURCHASE AGREEMENT (the "Agreement") is made as of the 2nd
of August, 2006, by and among Clearwire Europe S.a x.x., a Luxembourg limited
liability company ("Purchaser"), and Xxxx Xxxxxx ("Axel"), Xxxxxxx xx Xxxxxx
("Xxxxxxx"), Xxxxxxx du Chastel ("Nicolas") and Xxxxxxx Xxxxxxxx ("Xxxxxxx" and,
as to each a "Seller" together with Xxxx, Xxxxxxx and Nicolas, the "Sellers" and
as to each a "Seller").
RECITALS:
A. Sellers own Twenty-Five Thousand Three Hundred Thirty (25,330) fully
paid registered shares (the "Shares") of MAC Telecom Holdings SA, a "societe
anonyme" organized under the laws of Belgium ("MTH") as set forth on Exhibit X.
Xxxxxxx are the sole shareholders of MTH.
B. MTH holds Seven Thousand Four Hundred Forty-One (7,441) fully paid
registered shares (the "MTH Shares") of MAC Telecom SA, a "societe anonyme"
organized under the laws of Belgium ("MAC Telecom"). The other shareholders of
MAC Telecom, other than Purchaser and MTH, are set forth on Exhibit A hereto
(the "Other Shareholders"), who hold, collectively, Two Thousand Five Hundred
Eighty-Four (2,584) fully paid registered shares (the "Minority Shares") of MAC
Telecom.
C. Purchaser is the owner of Seven Thousand Two Hundred Eighteen (7,218)
registered shares of MAC Telecom, which together with the MTH Shares and the
Minority Shares constitutes all of the outstanding stock of MAC Telecom.
D. Purchaser and the Other Shareholders will enter into a Stock Purchase
Agreement (as the same may be amended, the "MAC Telecom Stock Purchase
Agreement") of even date herewith pursuant to which Purchaser will purchase from
the Other Shareholders, and the Other Shareholders will sell to Purchaser, all
of their right, title and interest in and to the Minority Shares. The entry into
the MAC Telecom Stock Purchase Agreement is a material inducement of Purchaser
to enter into this Agreement.
E. Purchaser desires to purchase the Shares from Sellers, on the terms and
subject to the conditions set forth in this Agreement. Sellers desire to sell
the Shares to the Purchaser on such terms and conditions.
AGREEMENT:
NOW, THEREFORE, the parties hereto agree as follows:
Section 1. Definitions. In addition to the terms defined elsewhere in this
Agreement, including the recitals, the following terms, when used herein, shall
have the following meanings:
"Affiliate" shall have the meaning given by article 11 of the Belgian
Company Code.
"Clearwire Belgium" means Clearwire Belgium Sprl, a corporation organized
under the laws of Belgium.
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"Clearwire Shareholder Agreement" means the shareholder agreement in the
form of Exhibit C hereto.
"Closing Accounts" means MTH's unaudited accounts as of the Closing Date,
as referred to in Section 3.4, prepared in accordance with generally accepted
accounting principles and using the same methodology used in preparing the
Financial Statements.
"Governmental Authority" means any nation or government, foreign or
domestic, any state or other political subdivision thereof, and any agency or
other entity exercising executive, legislative, judicial, regulatory or
administrative functions of government, including, without limitation, all
taxing authorities.
"Investment Agreement" means that certain Investment Agreement dated as of
December 7, 2004, between, among others, MTH, Purchaser, the Sellers and MAC
Telecom.
"Law" or "Laws" means any statute, rule, common law, ordinance, regulation,
order, writ, judgment, injunction, decree, determination, or award enacted or
promulgated by a Governmental Authority.
"License" means the license for the 3.450 - .0475 / 3.550 - 3.575 MHz
frequencies held by MAC Telecom under license number INFRAPL2001\MODI-5\2006-01.
"Lien" means any interest, consensual or otherwise, in property securing a
monetary obligation owed to, or a claim by, a Person other than the owner of the
property, whether such interest is based on the statute or contract, and
including, but not limited to, any security interest, lien or other beneficial
interest arising from a mortgage, recordation of abstract of judgment, deed of
trust, deed to secure debt, encumbrance, pledge, conditional sale, option, trust
(constructive or otherwise) or trust receipt or a lease, consignment or bailment
for security purposes.
"Net Working Capital" means the difference of (i) total current assets of
MTH, excluding the Seller Loans and (ii) total current liabilities, each as
computed in accordance with generally accepted accounting principles and using
the same methodology used in preparing the Financial Statements, and as set out
in the Closing Accounts.
"Person" means an individual, corporation, partnership, limited liability
company, unincorporated association, trust, joint venture or other organization
or entity, including a Governmental Authority.
"Management Agreement" means that certain Management Agreement dated as of
December 7, 2004 between MTH and MAC Telecom.
"MAC Shareholders Agreement" means that certain Shareholders Agreement
dated as of December 7, 2004, between, among others, MTH, MAC Telecom, Purchaser
and Sellers.
"MTH Shareholders Agreement" means that certain Shareholders Agreement
dated as of March 14, 2003, between Sellers and which relates to MTH and the
Shares.
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"Restrictive Covenant Agreements" mean the four Restrictive Covenant
Agreements dated as of December 7, 2004 executed by each Seller, MTH, MAC
Telecom and Clearwire Belgium.
Section 2. Interpretation.
2.1 No provision of this Agreement shall be interpreted adversely
against a party solely because that party was responsible for drafting that
particular provision.
2.2 English language words used in this Agreement and, where
applicable, the French translation thereof, intend to describe Belgian legal
concepts only and the consequences of the use of those words in US law or any
other foreign law shall be disregarded.
2.3 This Agreement has been drawn up in the English language; in the
event of any discrepancy between the English text of this Agreement (or any
agreement resulting therefrom or relating thereto) and any translation thereof,
the English language version shall prevail; subject to Section 2.2 above, the
English language version shall also prevail for interpretation purposes.
2.4 References to any Belgian legal concept shall, in respect of any
jurisdiction other than Belgium, be deemed to include the concept which in that
jurisdiction most closely approximates the Belgian legal concept.
2.5 When using the expressions "shall use its best efforts" or "shall
use its best endeavors" (or any similar expression or any derivation thereof) in
this Agreement, the parties intend to refer to the Belgian law concept of
"obligation de moyen".
2.6 When using the words "shall cause" or "shall procure that" (or any
similar expression or any derivation thereof), the parties intend to refer to
the Belgian law concept of "porte-fort".
2.7 All terms defined in this Agreement shall have the same meaning
regardless of whether they are used in the singular or plural number.
2.8 The words "include", "included" or "including" are used to
indicate that the matters listed are not a complete enumeration of all matters
covered.
Section 3. Terms of Purchase.
3.1 Purchase and Sale of Shares. On the terms and subject to the
conditions set forth in this Agreement, Sellers hereby agree to sell, assign,
transfer and convey to Purchaser, and Purchaser hereby agrees to acquire and
take assignment of, the Shares. The Shares shall be sold and transferred to the
Purchaser with all rights and obligations attached, including the right to
receive distribution of profits or liquidation proceeds for the current fiscal
year and the prior fiscal years to the extent not yet distributed on the date of
the signing hereof.
3.2 Purchase Price. In consideration for the sale to Purchaser by
Sellers of the Shares, Purchaser will pay Sellers the following: (i) One Million
Nine Hundred Forty-Seven Thousand Five Hundred Sixty-Four Dollars (US$1,947,564)
which includes an amount
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corresponding to the balance of the Seller Loans (as defined below); (ii) Eight
Hundred Forty-Eight Thousand Seven Hundred Sixty-Four (848,764) shares of
Restricted Class A Common Stock (the "Clearwire Stock") of Clearwire
Corporation, a Delaware corporation registered with the Delaware State Register
under registration number 3720220 ("Clearwire"); and (iii) the Additional
Payment, if any, under Section 3.3 below. The cash portion of the purchase price
referred to in (i) above shall be paid: (a) One Million Six Hundred Ninety-Seven
Thousand Five Hundred Sixty-Four Dollars (US$1,697,564) in cash paid on the
Closing Date in immediately available funds by wire transfer, provided that
Sellers shall use these received funds to immediately repay to MTH the balance
of the Seller Loans by wire transfer in immediately available funds to the bank
account of MTH with number 000-0000000-00; and (b) the balance of Two Hundred
Fifty Thousand Dollars (US$250,000) (the "Holdback") twelve (12) months from the
Closing, which amount shall be divided equally among the Sellers. The cash
referred to in (i) above, the Clearwire Stock and the Additional Payment, if
any, shall be allocated among the Sellers in accordance with Exhibit B hereto.
On the date twelve (12) months after the Closing, Purchase shall pay to Sellers
the Holdback, less any set-offs or payments owing to Purchaser under this
Agreement, provided that the balance of the Seller Loans has been fully repaid
by all Sellers on the Closing Date. Purchaser shall have the right to make any
payment of cash (including the Additional Payment) to a single bank account
designated in writing by Sellers in full discharge of any obligation to make
such cash payment and it shall be the Sellers' obligation to make the actual
allocations of these funds among themselves in accordance with Exhibit B hereto.
3.3 Additional Payment. If and only if: (a) within two (2) years after
the Closing, Purchaser, its Affiliates or MAC Telecom shall close the sale (the
"License Sale") of all or substantially all of the stock or assets of MAC
Telecom (including the License) to any Person who is not an Affiliate of
Purchaser; and (b) the License Value (as defined below) on the date of the
License Sale exceeds the U.S. dollar equivalent of Ten Million Dollars
($10,000,000), then Purchaser shall pay to Sellers within thirty days of the
closing of the License Sale (or, within thirty days of the final determination
in accordance with this Section 3.3 of the License Value insofar that Sellers
have objected thereto) an amount in cash equal to twenty-nine point thirty-one
percent (29.31%) of the amount, if any, by which the License Value exceeds Ten
Million Dollars ($10,000,000). If Sellers object to such valuation within thirty
(30) days of receipt thereof by Sellers, the value shall be determined in
accordance with Section 13.5(b) hereof. For example, if the License Value was
Thirty Million Dollars ($30,000,000), then Purchaser would pay to Sellers
(allocated among the Sellers in accordance with Exhibit B hereto) five million
eight hundred sixty-two thousand Dollars ($5,862,000). No Additional Payment
shall be due if the License Sale shall not close within two years after Closing
or if the amount allocated to the License in the License Sale does not exceed
Ten Million Dollars ($10,000,000). In addition, no Additional Payment shall be
due for the sale of any other asset, including without limitation any other
license, owned by MAC Telecom. As used herein, "License Value" means the value
of the License; being either (a) if the License Sale is a sale by MAC Telecom,
or Purchaser or any of its Affiliates of the License alone, the U.S. dollar
equivalent of the purchase price allocated to the License in the License Sale,
(b) if the License Sale is a sale by MAC Telecom, or Purchaser or any of its
Affiliates of all or substantially all of its assets including the License, the
U.S. dollar equivalent of the portion of the purchase price solely allocated to
the License as determined in good faith by the parties to the License Sale and,
failing such determination by the parties to the License Sale, as determined by
Purchaser in good faith, provided that if Sellers shall object to such valuation
within thirty (30) days of receipt thereof by Sellers, then the value shall be
determined in accordance with Section 13.5(b)
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hereof, and (c) if the License Sale is a sale by Purchaser or one or more of its
Affiliates of all or substantially all of the stock in MAC Telecom, the U.S.
dollar equivalent of the portion of the purchase price solely allocated to the
License as determined in good faith by the parties to the License Sale and,
failing such determination by the parties to the License Sale, as determined by
Purchaser in good faith, provided that if Sellers shall object to such valuation
within thirty (30) days of receipt thereof by Sellers, then the value shall be
determined in accordance with Section 13.5(b) hereof.
3.4 Net Working Capital. Sellers shall ensure that the Net Working
Capital is zero upon Closing.
3.4.1 If the Net Working Capital is negative upon Closing, Sellers
shall pay to Purchaser an amount equal to the difference of (i) actual Net
Working Capital and (ii) zero (the "Working Capital Difference"). It is
expressly agreed that if the Net Working Capital is positive upon Closing, this
will not trigger any payments to be made by Purchaser to the Sellers. The
Working Capital Difference shall be determined by the Parties in accordance with
the procedure set out in this Section 3.4 or, as the case may be, the arbitrator
in accordance with the procedure set out in Section 13.5(b).
3.4.2 The Closing Accounts shall be prepared by the Sellers and they
shall be delivered to the Purchaser, jointly with copies of the working papers
used to draw up the Closing Accounts, within five days after the Closing Date.
3.4.3 The Purchaser shall within five days after the delivery to the
Purchaser of the Closing Accounts and the related working papers (the
"Verification Period"), cause such verification as the Purchaser shall deem
useful to be performed with respect to the Closing Accounts, at the Purchaser's
sole expense. On the basis of that review, the Purchaser may during a ten-day
period following the Verification Period propose to the Sellers in writing (the
"Notice of Objection") such adjustments, if any, as shall in the Purchaser's
judgment be required to determine the Working Capital Difference as of the
Closing Date. The Notice of Objection shall contain a statement of the basis of
the Purchaser's objection.
3.4.4 If within ten days following the Verification Period the
Purchaser has not given the Sellers a Notice of Objection, then the Purchaser
shall be deemed to agree with the amount of the Working Capital Difference as
shown in the Closing Accounts and that amount shall constitute the Working
Capital Difference for the purposes of Section 3.4.1.
3.4.5 If the Purchaser has given the Sellers a Notice of Objection in
accordance with Section 3.4.3, the Parties shall attempt to resolve the disputed
issues and to agree on the amount of the Working Capital Difference, in which
case that amount shall constitute the Working Capital Difference for the
purposes of Section 3.4.1.
3.4.6 If the Parties are not able to reach agreement within fifteen
days from the notification of the Notice of Objection, then the Working Capital
Difference shall be determined in accordance with Section 13.5(b) hereof. In
determining the amount of the Working Capital Difference, the arbitrator shall
limit its inquiry to the disputed issues, i.e. to those items in the Closing
Accounts to which the Purchaser has objected in the Notice of Objection.
3.4.7 The Sellers shall reimburse the Working Capital Difference to
the Purchaser within 10 days after the final determination of the Working
Capital Difference in accordance with this Section 3.4, by wire transfer of
immediately available funds to the account designated by the Purchaser.
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3.5 Taxes; Fees. To the extent that the transfer of the Shares to the
Purchaser gives rise to sales tax liability or other transfer, purchase,
recordation or documentary tax or other fees (collectively, "Sales Taxes"),
Sellers shall pay such Sales Taxes to the appropriate tax authorities at the
Closing.
3.6 Closing. The (i) transfer of ownership of the Shares and (ii)
completion of the Sellers' and Purchaser's closing obligations contemplated by
this Agreement (the "Closing") will take place at the offices of Linklaters Xx
Xxxxx, 00 xxx Xxxxxxxxx, 0000 Xxxxxxxx on the date set by Purchaser and Sellers
within five (5) business days following the date on which the last condition in
Section 8 has been satisfied or waived, or at such other time or place as
Sellers and Purchaser may agree on, either in writing or orally (the "Closing
Date").
3.7 Share register. The Sellers hereby irrevocably appoint Xxxxxxx xx
Xxxxxx, acting individually, with power to substitute, as their attorney-in-fact
to record this share transfer in MTH's share register and to take any other
action and sign any other document as may be necessary or desirable in order for
such share transfer to be enforceable against MTH and third parties. The
Purchaser hereby irrevocably appoints each of Pia Lavrysen and Xxxxxxx Xxxxxxxx,
attorneys-at-law, 00 xxx Xxxxxxxxx, 0000 Xxxxxxxx, Xxxxxxx, acting jointly or
individually, with power to substitute, as their attorney-in-fact to record this
share transfer in MTH's share register and to take any other action and sign any
other document as may be necessary or desirable in order for such share transfer
to be enforceable against MTH and third parties. The Purchaser shall receive
share certificates certifying such recording in the share register.
3.8 Share transfer restrictions. The Sellers waive any rights and
obligations they have in relation to the transfer of the Shares pursuant to the
MTH Shareholders Agreement and to the articles of association of MTH.
Section 4. Representations and Warranties of Sellers. The Sellers, jointly
and severally, hereby represent and warrant to Purchaser that the following
statements are true and correct as of the date hereof and shall be true as of
the Closing Date:
4.1 Organization, Qualification and Corporate Power. MTH is a 'societe
anonyme', duly organized and validly existing under the laws of Belgium. MTH is
duly qualified to conduct business and is in corporate and tax good standing
under the laws of each jurisdiction in which the nature of its businesses or the
ownership or leasing of its properties requires such qualification. MTH has all
requisite power and authority to carry on the businesses in which it is engaged
and to own and use the properties owned and used by it. MTH has furnished to
Purchaser true and complete copies of its organizing documents, including true
and accurate English translations thereof, each as amended and as in effect on
the date hereof.
4.2 Capitalization of MTH. The authorized capital stock of MTH
consists solely of 25,330 registered shares, of which the Shares are the sole
shares issued and outstanding. Schedule 4.2 sets forth a complete and accurate
list of all MTH's shareholders, indicating the number of shares of MTH held by
each shareholder. Other than the Shares, there are no outstanding or authorized
stock, options, warrants, rights, agreements or commitments to which MTH is a
party or which are binding upon MTH providing for the issuance or redemption of
any shares or other securities of MTH. There are no outstanding or authorized
stock appreciation,
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phantom stock or similar rights with respect to MTH. The Shares have been duly
authorized and validly issued and are fully paid and non-assessable. None of the
Shares was issued in violation of any applicable Law. The Sellers have good and
marketable title to the Shares, free and clear of all Liens, charges, demands or
adverse claims or other restrictions on the exercise of any of the attributes of
ownership. The Sellers have full voting power over the Shares, subject to no
proxy, shareholders' agreement, voting trust or other agreement relating to the
voting of any of the Shares other than the MTH Shareholders Agreement or the
articles of association of MTH. As of the Closing Date no Person will have any
preemptive right to purchase the Shares other than as set forth in the articles
of association of MTH or the MTH Shareholders Agreement.
4.3 Subsidiaries. MTH has no subsidiaries or interests in any Person
other than its holdings in MAC Telecom.
4.4 Absence of Certain Conflicts. Neither the execution and delivery
of this Agreement nor the consummation of the transactions contemplated hereby
will (a) conflict with or result in a breach of any provision of the organizing
documents of MTH or MAC Telecom; (b) require the payment or the incurring of any
obligation on the part of MTH or MAC Telecom, or result in a loss of rights or
default (or give rise to any right of termination, cancellation or
acceleration), with or without notice or lapse of time, under any of the
provisions of any contract, agreement or instrument to which MTH or MAC Telecom
is a party, (c) breach or otherwise constitute a default under any agreement or
undertaking binding on or relating to MTH, MAC Telecom, Sellers, the Shares or
the MTH Shares or (d) violate any judgment, decree, order, injunction, or any
statute, law, regulation or rule of any court or any Governmental Authority
applicable to Sellers, MTH, MAC Telecom, the Shares or the MTH Shares or any of
its or their operations or property.
4.5 Financial Statements; Seller Loans.
(a) Attached hereto as Schedule 4.5(a), are (i) the unaudited
balance sheet of MTH for the financial year ended December 31, 2005 drawn up in
accordance with Belgian GAAP, and the related notes and statements of
operations, shareholders' equity and cash flows, and (ii) the unaudited balance
sheet of MTH as of May 31, 2006 drawn up in accordance with Belgian GAAP and the
related unaudited notes and statements of operations, shareholders' equity and
cash flows for the five months ended May 31, 2006 (collectively, the "Financial
Statements"). The Financial Statements (a) are in accord with the books and
records of MTH, (b) reflect that suitable accounting policies have been
consistently applied, that reasonable and prudent judgments have been used in
the preparation of the Financial Statements, and (c) give a true and fair view
of the state of affairs of MTH. The books and records of MTH are in all material
respects correct and complete, are maintained in accordance with good business
practice and all applicable Laws, and accurately present and reflect in all
material respects all of the transactions that are or should be therein
described.
(b) The Sellers are indebted to MTH for certain loans (the
"Seller Loans") as set forth in Schedule 4.5(b), which Schedule sets forth the
amount owed by each Seller as of May 31,2006 and the applicable per diem amount.
Also attached to Schedule 4.5(b) are true and correct copies of all instruments,
notes and agreements evidencing the Seller Loans.
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(c) MTH does not owe any amounts to any of its shareholders (and
in particular any Seller), directors, or executive officers, other than for
compensation for services actually rendered to MTH. Other than the Seller Loans,
there are no amounts owed to MTH by any Seller (by virtue of a loan, a current
account or otherwise).
4.6 Absence of Certain Changes. Since May 31, 2006, there has not been
any material adverse event affecting MTH, nor has there occurred any event or
development which could reasonably be foreseen to result in such a material
adverse event.
4.7 No Undisclosed Liabilities. MTH does not have any Liability of any
kind except as properly and fully reflected (i) in the Financial Statements to
the extent this is required by and in accordance with Belgian GAAP, or (ii) in
Schedule 4.7. As used herein, "Liability" means any liability (whether known or
unknown, whether asserted or unasserted, whether absolute or contingent, whether
accrued or unaccrued, whether liquidated or unliquidated, and whether due or to
become due).
4.8 Tax Matters.
(a) MTH has properly filed on a timely basis all Tax Returns that it was
required to file, and all such Tax Returns were correct and complete in all
respects. MTH has properly paid on a timely basis all Taxes, whether or not
shown on any of its Tax Returns that were due and payable. All Taxes that MTH is
or was required by Law to withhold or collect have been withheld or collected
and, to the extent required, have been properly paid on a timely basis to the
appropriate Governmental Authority. As used herein, "Taxes" shall mean (i) all
taxes, and any and all other charges, fees, levies, duties, deficiencies,
customs or other similar assessments or liabilities in the nature of a tax,
including without limitation any income, gross receipts, ad valorem, premium,
value-added, excise, severance, stamp, occupation, windfall profits, real
property, personal property, sales, use, transfer, transfer gains, withholding,
employment, unemployment, insurance, social security, business license, business
organization, environmental, workers compensation, payroll, profits, license,
lease, service, service use, and franchise taxes imposed by any federal, state,
local, or foreign government, or any agency or political subdivision thereof,
(ii) any interest, fines, penalties, assessments, or additions resulting from,
attributable to, or incurred in connection with any items described in this
paragraph or any contest or dispute thereof, and (iii) any items described in
this paragraph that are attributable to another Person but that MTH or any
subsidiary is liable to pay by law, by contract, or otherwise. Also as used
herein, "Tax Returns" shall mean all reports, returns, declarations, statements,
forms, or other information required to be supplied to a taxing authority or to
any individual or entity in connection with Taxes and any associated schedules
or work papers provided in connection with such items. MTH does not have in
effect currently any waiver of any statute of limitations with respect to Taxes
or agreed to an extension of time with respect to an assessment of or deficiency
in Taxes or the filing of a Tax Return that is currently in effect. To the best
of Sellers' knowledge, at no time has MTH been subject to an audit or review by
any Governmental Authority relating to Taxes. To the best of Sellers' knowledge,
no examination of any return of MTH is currently in progress. MTH has not
received notice of any proposed audit or examination. No deficiency in the
payment of Taxes by MTH for any period has been asserted in writing by any
taxing authority and remains unsettled at the date of this Agreement. MTH has
not made any agreement, waiver or other arrangement providing for an extension
of time with respect to the assessment or collection of any Taxes against it.
Other than the corporate income Tax
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Return relating to the financial year 2005 which is to be filed in September
2006, no Tax Returns shall be required to be filed within the six (6) month
period following the date of this Agreement.
(b) True and correct copies of all Tax Returns of MTH for the prior three
year period have been furnished by Sellers to Purchaser.
(c) There shall be no unpaid Taxes attributable to the period prior to the
Closing Date. No Taxes shall be due arising from the termination of the
Management Agreement in accordance with Section 8.3(d) or the termination of any
other agreement to which MTH is a party, in accordance with Section 8.2(h).
4.9 Employees. MTH has never had any employees.
4.10 Litigation. There is no actual or threatened litigation against
MTH, nor is MTH subject to any order, writ, injunction or decree of any court or
any federal, state, municipal or other domestic or foreign Governmental
Authority, other than disclosed in Schedule 4.10 to this Agreement. There is no
actual or threatened litigation against the Sellers which could adversely affect
the validity and enforceability of the transfer of the Shares to Purchaser, and
none of the Sellers is subject to any order, writ, injunction or decree of any
court or any federal, state, municipal or other domestic or foreign Governmental
Authority.
4.11 Assets. The sole and exclusive assets of MTH are the MTH Shares,
MTH's rights under the Management Agreement and the Seller Loans. MTH is not a
party to or otherwise bound by any agreements or undertakings except as set
forth in Schedule 4.11, all of which agreements are in full force and effect,
and have not been breached by MTH or any party thereto.
4.12 MAC Telecom Stock. The authorized capital stock of MAC Telecom
consists solely of 17,243 registered shares, all of which are issued and
outstanding. MAC Telecom has also issued 8,143 beneficiary shares which are
outstanding. Schedule 4.12 sets forth a complete and accurate list of all MAC
Telecom's shareholders, indicating the number of shares of MAC Telecom held by
each shareholder. Other than the shares and the beneficiary shares held by
Purchaser, the Minority Shares reflected in Schedule 4.12 and the MTH Shares,
there are no outstanding or authorized stock, securities, options, warrants,
rights, agreements or commitments to which MAC Telecom is a party or which are
binding upon MAC Telecom providing for the issuance or redemption of any shares
or other securities of MAC Telecom. There are no outstanding or authorized stock
appreciation, phantom stock or similar rights with respect to MAC Telecom. The
MTH Shares have been duly authorized and validly issued and are fully paid and
non-assessable. None of the MTH Shares was issued in violation of any applicable
Law. MTH has good and marketable title to the MTH Shares, free and clear of all
Liens, charges, demands or adverse claims or other restrictions on the exercise
of any of the attributes of ownership. MTH has full voting power over the MTH
Shares, subject to no proxy, shareholders' agreement, voting trust or other
agreement relating to the voting of any of the MTH Shares other than the MAC
Shareholders Agreement and the articles of association of MAC Telecom. As of the
Closing Date no Person will have any preemptive right to purchase the MTH Shares
other than as set forth in the MAC Shareholders Agreement and the articles of
association of MAC Telecom.
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4.13 Legal Compliance. MTH, and the conduct and operations of its
businesses, are and have been at all times in compliance with all Laws.
4.14 Authorization by Sellers; Enforceability. All action on the part
of Sellers necessary for the authorization, execution and delivery of this
Agreement and the performance of all obligations of Sellers hereunder has been
taken. This Agreement has been duly and validly executed and delivered by
Sellers. Assuming the due authorization, execution and delivery by Purchaser,
this Agreement constitutes a valid and binding obligation of Sellers enforceable
against Sellers in accordance with its terms, except to the extent that
enforceability may be limited by bankruptcy, reorganization, insolvency or other
laws affecting the enforcement of creditors' rights generally or the
availability of equitable remedies subject to the discretion of the court.
4.15 Restrictive Covenant Agreements. Each Seller is in full
compliance under his respective Restrictive Covenant Agreement, and no Seller
has breached any of his obligations under such Restrictive Covenant Agreement.
4.16 Broker's Fees. Neither Sellers nor MTH has any Liability or
obligation to pay any fees or commissions to any broker, finder or agent with
respect to the transactions contemplated by this Agreement.
4.17 Disclosure. No representation or warranty by the Sellers
contained in this Agreement, or any other document, certificate or other
instrument delivered to or to be delivered by or on behalf of the Sellers
pursuant to this Agreement, contains or shall contain any untrue statement of a
material fact or omits or shall omit to state any material fact necessary, in
light of the circumstances under which it was or shall be made, in order to make
the statements herein or therein not misleading. The Sellers have disclosed to
the Purchaser all material information relating to MTH, its assets and
liabilities or otherwise relevant for or the transactions contemplated by this
Agreement.
4.18 Marital Status. Other than Nicolas du Chastel and Xxxxxxx
Xxxxxxxx, none of the Sellers is married under any civil law regime.
Section 5. Declarations Relating to Clearwire Stock. Each Seller, as to
himself (but not as to any other Seller), hereby represents and warrants to
Purchaser that the following statements are true and correct as of the date
hereof and shall be true as of the Closing Date:
5.1 The Clearwire Stock to be received by each Seller is being
acquired for investment for such Seller's own account, not as a nominee or
agent, and not with a view to the distribution of any part thereof, and no such
Seller has any present intention of selling, granting any participation in, or
otherwise distributing or transferring the same. No such Seller has any
contract, undertaking, agreement or arrangement with any Person to sell,
transfer or grant participations to such person or to any third Person, with
respect to any of the Clearwire Stock.
5.2 Each Seller understands that no United States agency or any other
Governmental Authority has passed on or made any recommendation or endorsement
of the Clearwire Stock or the fairness or suitability of the investment in the
Clearwire Stock nor have such authorities passed upon or endorsed the merits of
the offering of the Clearwire Stock.
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5.3 Each Seller is an "accredited investor" as that term is defined in
Rule 501 of Regulation D promulgated under the Securities Act of 1933, as
amended (the "Securities Act"). No Seller is a "U.S. person" as that term is
defined under Rule 902 of Regulation S promulgated under the Securities Act.
This Agreement has been executed by Sellers outside the "United States" (as
defined in Rule 902(l) of Regulation S). Sellers are acquiring the Shares in an
"offshore transaction" (as defined in Rule 902(h) of Regulation S). The Shares
were not offered to Sellers in the United States and at the time of execution of
this Agreement and the time of any offer to Sellers to purchase the Shares
hereunder, Sellers were physically outside of the United States.
5.4 Each Seller has received private placement memoranda from
Clearwire and each Seller believes he has received all the information he
considers necessary or appropriate for deciding whether to acquire the Clearwire
Stock pursuant to this Agreement. Each Seller further represents that he has had
an opportunity to ask questions and receive answers from Clearwire regarding the
terms and conditions of the acquisition of the Clearwire Stock pursuant to this
Agreement and the business, properties, prospects and financial condition of the
Company. Each Seller confirms that the private placement memoranda and other non
public information that have been furnished to such Seller are subject to the
confidentiality provision of Section 7.1 of the MAC Shareholders Agreement dated
as of December 7, 2004, and the applicable confidentiality provision of the
Restrictive Covenant Agreements signed by such Seller.
5.5 Each Seller has independently evaluated the merits of his decision
to acquire the Clearwire Stock pursuant to this Agreement, and each Seller
confirms that he has not relied on the advice of any other Person, or any
placement agent, consultant or legal counsel in making such decision.
5.6 Each Seller has the financial and other ability to bear the
economic risk of his investment, and has such knowledge and experience in
financial and business matters that he is capable of evaluating the merits and
risks of the investment in the Clearwire Stock.
5.7 Each Seller understands that: (i) the Clearwire Stock has not been
registered under the Securities Act or any state securities laws; (ii) each
Seller agrees that if he decides to offer, sell or otherwise transfer any of the
Clearwire Stock, such Clearwire Stock may be offered, sold or otherwise
transferred only: (A) pursuant to an effective registration statement under the
Securities Act; (B) to Clearwire; (C) outside the United States in accordance
with Rule 904 of Regulation S under the Securities Act and in compliance with
local laws; or (D) within the United States (1) in accordance with the exemption
from registration under the Securities Act provided by Rule 144 thereunder, if
available, and in compliance with any applicable state securities laws, and the
seller shall be required to furnish to Clearwire an opinion to such effect from
counsel of recognized standing reasonably satisfactory to Clearwire prior to
such offer, sale or transfer, or (2) in a transaction that does not require
registration under the Securities Act or applicable state securities laws, and
the Seller shall be required to furnish to Clearwire an opinion to such effect
from counsel of recognized standing reasonably satisfactory Clearwire prior to
such offer, sale or transfer.
5.8 Each Seller understands that the certificates evidencing the
Clearwire Stock may bear legends substantially similar to the following,
together with such other legends as may be required in the reasonable opinion of
counsel to Clearwire:
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"THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE UNITED STATES
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND
ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT AS SET FORTH IN THE
FOLLOWING SENTENCE. BY ITS ACQUISITION HEREOF, THE HOLDER (1)
REPRESENTS THAT (A) IT IS NOT A U.S. PERSON AND IS ACQUIRING THIS
SECURITY IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH REGULATION S
ADOPTED UNDER THE SECURITIES ACT; (2) AGREES THAT IT WILL NOT RESELL
OR OTHERWISE TRANSFER THE SECURITY EVIDENCED HEREBY, EXCEPT (A) TO THE
ISSUER OR A SUBSIDIARY THEREOF; (B) TO A QUALIFIED INSTITUTIONAL BUYER
IN COMPLIANCE WITH RULE 144A ADOPTED UNDER THE SECURITIES ACT (IF
AVAILABLE); (C) TO PERSONS OTHER THAN U.S. PERSONS OUTSIDE THE UNITED
STATES IN COMPLIANCE WITH REGULATION S UNDER THE SECURITIES ACT; (D)
PURSUANT TO THE EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144
ADOPTED UNDER THE SECURITIES ACT OR ANOTHER AVAILABLE EXEMPTION UNDER
THE SECURITIES ACT (IF AVAILABLE); OR (E) PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE SECURITIES ACT, AND (3) AGREES THAT
IT WILL, PRIOR TO ANY TRANSFER OF THIS SECURITY, FURNISH TO THE ISSUER
OR ISSUER'S COUNSEL SUCH CERTIFICATIONS, LEGAL OPINIONS OR OTHER
INFORMATION AS MAY BE REQUIRED BY THE ISSUER TO CONFIRM THAT SUCH
TRANSFER IS BEING MADE PURSUANT TO AN EXEMPTION FROM, OR IN A
TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT. AS USED HEREIN, THE TERMS "OFFSHORE TRANSACTION,"
"UNITED STATES" AND "U.S. PERSON" HAVE THE MEANING GIVEN TO THEM BY
REGULATION S UNDER THE SECURITIES ACT. IN ANY CASE, THE HOLDER HEREOF
WILL NOT, DIRECTLY OR INDIRECTLY, ENGAGE IN ANY HEDGING TRANSACTION
WITH REGARD TO THIS SECURITY, EXCEPT AS PERMITTED BY THE SECURITIES
ACT."
5.9 Each Seller has reviewed and approved the Clearwire Shareholder
Agreement and acknowledges that execution and delivery by such Seller of the
Clearwire Shareholder Agreement is a condition precedent to the issuance of any
Clearwire Stock to such Seller.
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5.10 Sellers acknowledge that this Section 5 is for the benefit of
Purchaser and Clearwire.
Section 6. Representations and Warranties of Purchaser. Purchaser
represents and warrants to Sellers that the following statements are true and
correct as of the date hereof and shall be true as of the Closing Date:
6.1 Organization and Standing; Power and Authority. Purchaser is a
limited liability company duly organized, validly existing and in good standing
under the laws of Luxembourg. Purchaser has all requisite power and authority to
enter into, execute, deliver and perform this Agreement and to carry out the
transactions contemplated hereby.
6.2 Authorization; Enforceability. Purchaser has taken or caused to be
taken all actions necessary for the authorization, execution, delivery and
performance of this Agreement by Purchaser and the consummation of the
transactions contemplated hereby. This Agreement has been duly executed and
delivered by Purchaser. Assuming the due authorization, execution and delivery
by Sellers, this Agreement constitutes a valid and binding obligation of
Purchaser, enforceable against Purchaser in accordance with its terms, except to
the extent that enforceability may be limited by bankruptcy, reorganization,
insolvency or other laws affecting the enforcement of creditors' rights
generally or the availability of equitable remedies subject to the discretion of
the court.
6.3 Broker's Fees. Purchaser has no liability or obligation to pay any
fees or commissions to any broker, finder or agent with respect to the
transactions contemplated by this Agreement.
Section 7. Covenants.
7.1 Seller Affirmative Covenants. Between the date of this Agreement
and the Closing Date, except as otherwise consented to in writing by Purchaser
or as otherwise contemplated by this Agreement, Sellers will:
(a) preserve the Shares and cause MTH to preserve the MTH Shares;
(b) permit MTH to operate in the ordinary course of business;
(c) obtain all third party approvals, if any, necessary to
consummate the transactions contemplated hereby;
(d) maintain the books, accounts and records of MTH in the usual
and regular manner;
(e) cause MTH to satisfy all Liabilities of MTH, if any, in a
timely manner as they become due; and
(f) comply with all Laws applicable to the conduct of MTH or
MTH's business.
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7.2 Seller Negative Covenants. Between the date of this Agreement and
the Closing Date, except as consented to in writing by Purchaser or as otherwise
contemplated by this Agreement, Sellers will not, and will cause MTH not to:
(a) take any action or omit to take any action that could
reasonably be expected to render inaccurate any representation or warranty of
Sellers contained in this Agreement (as if such representation or warranty was
made on each date from the date of this Agreement to the Closing Date);
(b) hire any employees for MTH or create any employee benefit
plans;
(c) amend any of MTH's articles of association or organizing
documents;
(d) sell, lease, pledge, hypothecate, mortgage, encumber,
transfer, or otherwise dispose of or agree to sell, lease, pledge, hypothecate,
mortgage, encumber, transfer, license, or otherwise dispose of, or create any
Lien on the Shares or any assets of MTH, including the MTH Shares;
(e) enter into any contract, commitment, purchase order or
obligation (or group of related contracts, commitments, purchase orders or
obligations) binding on MTH, except in the ordinary course of business;
(f) commence any proceeding to merge, consolidate or liquidate or
dissolve, or obligate itself to do so;
(g) issue any shares, options, warrants, or other securities or
any other right to any Person for the acquisition of MTH's securities;
(h) make any dividend or distributions to any shareholders;
(i) enter into any contract, agreement, commitment, option, or
obligation which involves the Shares, or the sale, transfer, assignment thereof
or any rights therein, including without limitation the right to vote the
Shares; or
(j) enter into any contract, agreement, arrangement or
understanding to, or otherwise offer or commit to, in any manner, (i) sell,
transfer, assign or dispose of the Shares or the MTH Shares or any interest
therein or portion thereof, or negotiate therefor, or (ii) create, incur or
suffer to exist any Lien on the Shares or the MTH Shares or any interest
therein.
7.3 "Market Stand-off" Agreement. If requested by Clearwire or an
underwriter of capital stock or other securities of Clearwire in connection with
Clearwire's initial public offering, each Seller agrees not to sell or otherwise
transfer or dispose of any Clearwire Stock or other securities of Clearwire held
by such Seller during the 180 day period, or such longer period as requested by
the underwriters, following any registration statement filed under the
Securities Act to register capital stock or other securities of Clearwire.
Sellers shall execute such agreements as shall be required by the underwriters.
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7.4 Covenant to Satisfy Conditions. Purchaser and Sellers will use
their respective commercially reasonable efforts to cause the conditions set
forth in Section 8 to be satisfied.
7.5 MAC Shareholders Agreement. Pursuant to Section 3.3.2 of the MAC
Shareholders Agreement, if Clearwire intends to offer shares of its common stock
for sale to the public in a Qualified IPO (as defined in the MAC Shareholders
Agreement), MTH has the option to exchange its shares in MAC Telecom for shares
of Clearwire common stock and Clearwire has the option to compel such exchange.
Purchaser, MTH and Sellers agree that this Agreement is intended to fully
satisfy each party's obligations under Section 3.3.2 of the MAC Shareholders
Agreement, and upon the Closing, neither Purchaser nor MTH nor the Sellers shall
have any rights or obligations under Section 3.3.2 of the MAC Shareholders
Agreement.
7.6 Allocation Schedule. Sellers direct that the purchase price be
allocated among the Sellers in the manner set forth in Exhibit B hereto. The
allocation may or may not be in proportion to each Seller's percentage ownership
interest in MTH, and the Sellers may or may not seek pro rata interests in the
cash and Clearwire Stock provided under this Agreement. The allocations shall be
matters solely determined by Sellers, and Sellers shall waive any claim they may
have against Purchaser in this respect and shall indemnify Purchaser from all
claims relating thereto.
7.7 Further Assurances. From time to time on or after the Closing
Date, Sellers and Purchaser will execute and deliver to each other all such
further assignments, endorsements and other documents as are reasonably
requested in order to complete the sale of the Shares to Purchaser, to enable
Purchaser to exercise full rights as the sole owner of the Shares and to
otherwise carry out the transactions contemplated by this Agreement. Without
limitation, to the extent Sellers (or any one of them) shall have ownership
interests or rights in MTH other than the Shares (or shall have ownership
interests or rights in MAC Telecom other than the MTH Shares), such additional
interests shall be conveyed to Purchaser at Closing without additional
consideration from Purchaser.
Section 8. Conditions.
8.1 Conditions to Obligations of Sellers. The obligation of Sellers to
sell the Shares shall be subject to the satisfaction or waiver in writing, on or
before the Closing Date, of the following condition:
(a) On the Closing Date, the representations and warranties of
Purchaser set forth in Section 6 shall be accurate in all material respects with
the same effect as if made on the Closing Date, and Purchaser shall have
performed all obligations and complied in all material respects with all
covenants required to be performed or to be complied with by it on or prior to
the Closing Date under this Agreement.
8.2 Conditions to Obligations of Purchaser. The obligation of
Purchaser to purchase the Shares, pay the cash portion of the purchase price as
set forth in Section 3.2(i) less the Holdback, and deliver the Clearwire Stock
as set forth in Section 3.2(ii), is subject to the satisfaction or waiver in
writing, on or before the Closing Date, of the following conditions:
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(a) On the Closing Date, the representations and warranties of
Sellers set forth in Section 4 and Section 5 hereof shall be accurate in all
material respects with the same effect as if made on the Closing Date, and
Sellers shall have performed all obligations and complied in all material
respects with all covenants required to be performed or to be complied with by
him prior to the Closing Date under this Agreement. Without limitation,
Purchaser shall have no obligation to close the purchase of the Shares unless
Purchaser shall acquire the whole of the Shares.
(b) On the Closing Date, there shall not have been any Material
Adverse Change. "Material Adverse Change" shall mean any event, change,
circumstance or effect that has a material adverse effect on the operations,
Financial condition, prospects, assets, or operations, of MTH or MAC Telecom
taken as a whole, including the continuing validity and effectiveness of the
License.
(c) Sellers shall have obtained and delivered to Purchaser the
Consents (as defined hereafter) as well as the declarations submitted by each of
Nicolas du Chastel and Xxxxxxx Xxxxxxxx, containing the unconditional and
irrevocable written consent of their respective spouses to the transfer of the
Shares owned respectively by each such Seller.
(d) Each Seller shall, in form satisfactory to Purchaser, have
become bound to the Clearwire Shareholder Agreement.
(e) Purchaser and the Other Shareholders shall have entered into
the MAC Telecom Stock Purchase Agreement and all conditions to closing
thereunder shall have been met or waived.
(f) Each Seller shall have executed and delivered his pledge of
the Clearwire Stock in the form attached hereto as Exhibit I.
(g) Each Seller shall, or shall procure that its management
company, have resigned, effective as of the Closing, as an officer, director,
agent or representative of MTH and/or MAC Telecom, and shall have delivered to
that effect resignation letters in the form as attached hereto as Exhibit E.
Each Seller shall be removed as a xxxxxx of any bank account on behalf of MTH
and/or MAC Telecom.
(h) Each Seller shall, or shall procure that its management
company, effective as of the Closing, terminate without liability to MTH of any
kind all agreements between such Seller or such Seller's management company and
MTH by executing a termination of agreement in the form attached hereto as
Exhibit J, for such agreement, including, but not limited to each agreement
listed on Schedule 8.2(h) hereto.
(i) The board of directors of Clearwire shall have approved the
transactions contemplated by this Agreement and by the MAC Telecom Stock
Purchase Agreement.
8.3 Conditions to the Obligations of Purchaser and Sellers. The
obligations of each of Sellers to sell the Shares and the Purchaser to purchase
the Shares, pay the cash portion of the purchase price as set forth in Section
3.2(i) less the Holdback, and deliver the Clearwire Stock
16
as set forth in Section 3.2(ii), shall be subject to the satisfaction or waiver
in writing, on or before the Closing Date, of the following conditions:
(a) If required for the consummation of the transactions
contemplated herein, all notices, filings and consents required to be made or
obtained prior to the Closing by either party or any of their respective
Affiliates with any Governmental Authority or any third party in connection with
the execution and delivery of this Agreement and the consummation of the
transactions contemplated by this Agreement (collectively, the "Consents") shall
have been made or obtained.
(b) Neither Sellers nor Purchaser shall be subject to any order,
decree, or injunction of a court of competent jurisdiction or governmental
agency and no statute, rule or regulation shall be enacted or issued which
prevents or significantly delays any of the transactions contemplated by this
Agreement, or would impose any limitation on the ability of Sellers to sell the
Shares or the ability of the Purchaser to effectively exercise full rights of
ownership in the Shares.
(c) The parties to the MTH Shareholders Agreement shall have
executed and delivered the Termination of MTH Shareholders Agreement in the form
of Exhibit G hereto.
(d) Sellers shall have caused MTH to have executed the
Termination of Management Agreement in the form of Exhibit H hereto, and Sellers
shall have delivered such Termination of Management Agreement. Such termination
shall not be deemed to amend or modify the Option Agreement (as defined below)
and shall not affect the continued vesting of the Options as defined in that
certain Stock Option Agreement, dated January 19, 2005 (the "Option Agreement")
received by the Sellers pursuant to the Option Agreement, provided that such
Seller (or his management company) has entered into a professional services
agreement as set forth in Section 8.3(f) or Section 8.3(g), as the case may be,
which professional services agreement shall control the vesting of said Options
for said Seller (or his management company).
(e) The parties to the Restrictive Covenant Agreements shall have
executed and delivered the Termination of Restrictive Covenant Agreement in the
form of Exhibit D hereto.
(f) MAC Telecom shall have entered into an individual
professional services agreement with Xxxx Xxxxxx and Xxxxxxx du Chastel (or
their respective management companies) in substantially the form attached hereto
as Exhibit F.
(g) Clearwire Belgium shall have entered into an individual
professional services agreement with Xxxxxxx Xxxxxxxx and Xxxxxxx xx Xxxxxx (or
their respective management companies) in substantially the form attached hereto
as Exhibit F.
8.4 Waiver of Conditions. Either party may waive any condition set
forth in this Section 8 to such party's obligations under this Agreement. Except
as otherwise provided herein, the result of any such waiver shall be (a) the
elimination of the waived condition as a valid basis for the waiving party to
refuse to close the transactions contemplated by this Agreement, and (b) the
release of the other party from any claim by the waiving party for resulting
injuries and damages
17
with respect to that waived condition. Any waivers made under this Section shall
not be effective unless in writing.
8.5 Actions on Closing. (i) Sellers shall deliver or cause to be
delivered to Purchaser the certificates certifying the Shares' recording in the
share register of MTH; and such other instruments and documents as Purchaser may
reasonably require to vest in Purchaser all right, title and interest of Sellers
in and to the Shares; (ii) the share register of MTH shall be amended pursuant
to Section 3.7 hereof; (iii) Purchaser shall pay the cash portion of the
purchase price as set forth in Section 3.2(i) less the Holdback, and deliver the
Clearwire Stock as set forth in Section 3.2(ii); (iv) Sellers shall repay to MTH
the balance of the Seller Loans in cash by wire transfer in immediately
available funds to the bank account of MTH with number 000-0000000-00; and (v) a
special shareholders' meeting of MTH shall be held in order to acknowledge the
resignation of Sellers as directors, officers or representatives of MTH and to
appoint new directors and an auditor.
8.6 Purchaser shall cause MAC Telecom to amend, within 6 months after
the Closing Date, the employment contract of the individuals listed in Schedule
8.6, so that their notice period will become at least 6 months.
8.7 Subject to article 554 of the Belgian Company Code and generally
to all matters which may give rise to any finding of liability of the directors
of MTH or MAC Telecom, as the case may be, and which have not been disclosed to
Purchaser prior to the Closing Date, Purchaser undertakes to (i) grant, at the
first annual shareholders' meeting of MTH following the Closing Date, to all
directors of MTH who resigned pursuant to Section 8.2(g) release from liability
arising from the performance of their duties prior to the Closing Date and (ii)
grant, at the first annual shareholders' meeting of MAC Telecom following the
Closing Date, to all directors of MAC Telecom who resigned pursuant to Section
8.2(g) release from liability arising from the performance of their duties prior
to the Closing Date, provided in each case that such release from liability
shall not impair any right of Purchaser under this Agreement, including pursuant
to Section 11.2 hereof.
Section 9. Termination.
This Agreement may be terminated at any time prior to the Closing:
9.1 by the written agreement of all of the Sellers and Purchaser;
9.2 by either party if all of the conditions to such party's
obligation to close the transactions contemplated herein have not occurred on or
before the Closing Date; provided that if the conditions to closing have not
been satisfied or waived through the fault of a party, the party at fault shall
not have the right to terminate this Agreement pursuant to this Section 9.2;
9.3 by either Purchaser or Sellers if the Closing has not occurred on
or before the date that is ninety (90) days from the date of the execution of
this Agreement; provided that if the Closing has not occurred through the fault
of a party, the party at fault shall not have the right to terminate this
Agreement pursuant to this Section 9.3;
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9.4 by either Purchaser or Sellers if the consummation of the
transactions contemplated hereby shall violate any non-appealable final order,
decree or judgment of any Governmental Authority having competent jurisdiction;
or
9.5 by Purchaser, if any material adverse restriction or condition is
placed on the License or the assignment of the Shares.
Section 10. Notice of Termination.
In the event of termination of this Agreement and abandonment of the
transactions contemplated hereby, written notice thereof shall forthwith be
given by the terminating party to the other parties and this Agreement shall
terminate without further action by any of the parties hereto.
Section 11. Survival; Indemnification.
11.1 Survival of Representations and Warranties. The parties hereto
hereby agree that the representations, warranties and indemnification
obligations contained in this Agreement or in any certificate, document or
instrument delivered in connection herewith, shall survive the execution and
delivery of this Agreement, and the Closing hereunder for a period of two (2)
years; provided, that the representations and warranties contained in Sections
4.1, 4.2, 4.8,4.12,4.14 and Section 5 shall survive until the end of the sixty
day period following the expiration of the applicable statute of limitations.
11.2 Seller Indemnification. Subject to the provisions of this Section
11. Sellers, jointly and severally (except with regard to Section 5), hereby
agree to indemnify and hold the Purchaser and its Affiliates and their
respective directors, officers, employees, shareholders, members, managers,
agents, successors and assigns (collectively, the "Purchaser Indemnified
Parties") harmless from and against:
(a) any and all losses, liabilities, assessments, penalties,
obligations, damages, costs and expenses, whatsoever, including, without
limitation, reasonable attorneys' fees and other professionals' fees and
disbursements ("Losses) based upon, attributable to or resulting from the breach
of any representation or warranty of Sellers set forth in Section 4 or Section 5
hereof, or of any representation or warranty contained in any certificate
delivered by or on behalf of Sellers or a Seller pursuant to this Agreement;
(b) any and all Losses based upon, attributable to or resulting
from the breach of any covenant or other agreement on the part of any Seller
under this Agreement; and
(c) any Losses relating to Taxes, Liabilities or other
obligations of any kind of MTH arising from or relating to the period up to and
prior to Closing.
11.3 Purchaser Indemnification. Subject to the provisions of this
Section 11, Purchaser hereby agrees to indemnify and hold Sellers (the "Seller
Indemnified Parties") harmless from and against:
(a) any and all Losses based upon, attributable to or resulting
from the breach of any representation or warranty of Purchaser set forth in
Section 6 hereof, or of any
19
representation or warranty contained in any certificate delivered by or on
behalf of Purchaser pursuant to this Agreement; and
(b) any and all Losses based upon, attributable to or resulting
from the breach of any covenant or other agreement on the part of Purchaser
under this Agreement.
11.4 Indemnification Procedures.
(a) In the event that any liabilities, obligations, claims,
actions, suits, proceedings, investigations or judgments ("Claims") shall be
asserted by any Person in respect of which payment may be sought under Section
11 hereof, the indemnified party shall reasonably and promptly cause written
notice of the assertion of any Claim of which it has knowledge which is covered
by this indemnity to be forwarded to the indemnifying party. The indemnifying
party shall have the right, at its sole option and expense, to be represented by
counsel of its choice, which must be reasonably satisfactory to the indemnified
party, and to defend against, negotiate, settle or otherwise deal with any Claim
which relates to any Losses indemnified against hereunder. If the indemnifying
party elects to defend against, negotiate, settle or otherwise deal with any
Claim which relates to any Losses indemnified against hereunder, it shall within
ten (10) days (or sooner, if the nature of the Claim so requires) notify the
indemnified party of its intent to do so. If the indemnifying party elects not
to defend against, negotiate, settle or otherwise deal with any Claim which
relates to any Losses indemnified against hereunder, fails to notify the
indemnified party of its election as herein provided or contests its obligation
to indemnify the indemnified party for such Losses under this Agreement, the
indemnified party may defend against, negotiate, settle or otherwise deal with
such Claim. If the indemnified party defends any Claim, then the indemnifying
party shall reimburse the indemnified party for the reasonable expenses of
defending such Claim. If the indemnifying party shall assume the defense of any
Claim, the indemnified party may participate, at his or its own expense, in the
defense of such Claim; provided, however, that such indemnified party shall be
entitled to participate in any such defense with separate counsel at the expense
of the indemnifying party if, (i) so requested by the indemnifying party to
participate or (ii) in the reasonable opinion of outside counsel to the
indemnified party, a conflict or potential conflict exists between the
indemnified party and the indemnifying party that would make such separate
representation advisable; and provided, further, that the indemnifying party
shall not be required to pay for more than one such counsel for all indemnified
parties in connection with any Claim and only for reasonable legal fees. The
parties hereto agree to cooperate fully with each other in connection with the
defense, negotiation or settlement of any such Claim.
(b) After any final judgment or award shall have been rendered by
a court, arbitration board or administrative agency of competent jurisdiction
and the expiration of the time in which to appeal therefrom, or a settlement
shall have been consummated, or the indemnified party and the indemnifying party
shall have arrived at a mutually binding agreement with respect to a Claim
hereunder, the indemnified party shall forward to the indemnifying party notice
of any sums due and owing by the indemnifying party pursuant to this Agreement
with respect to such matter and indemnifying party shall pay the sum due within
15 calendar days following such notice.
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(c) The failure of the indemnified party to give reasonably
prompt notice of any Claim shall not release, waive or otherwise affect the
indemnifying party's obligations with respect thereto except to the extent that
the indemnifying party can demonstrate actual loss and prejudice as a result of
such failure.
11.5 Non-Exclusive Remedy. The remedies hereunder are nonexclusive and
the parties shall have all rights at law and equity including rights of setoff.
11.6 Nature of Payments to the Purchaser. Any amount paid by Sellers
to the Purchaser under this Section 11 shall constitute a reduction in the
purchase price.
Section 12. Release.
12.1 Release. Effective at Closing, and without further action by any
party hereto, except as otherwise provided in Section 11 above, each Seller (as
to each a "Releasing Party") hereby fully and forever releases and discharges
Purchaser, Clearwire Belgium, Clearwire, MAC Telecom and each of its or their
respective agents, principals, shareholders, members, subsidiaries, parents,
successors, and assigns from any damages, suits, claims, debts, demands,
assessments, obligations, liabilities, attorneys' fees, costs, expenses, rights
of action and causes of action, of any nature, whatsoever, known or unknown,
suspected or unsuspected, fixed or contingent, accrued or unaccrued, which such
Releasing Party now has or may hereafter have, by reason of any matter, cause or
thing whatsoever from the beginning of time to the Closing Date against
Purchaser, except this release shall not apply to the obligations of Purchaser
under this Agreement.
12.2 Other Terms. Each of the Releasing Parties: (a) further agrees
never to commence, aid or participate in (except to the extent required by order
or legal process issued by a court or governmental agency of competent
jurisdiction) any legal action or other proceeding based in whole or in part
upon Section 12.1 above; (b) agrees that this waiver and release is an essential
and material term of this Agreement and that the agreements in this paragraph
are intended to be in full satisfaction of any alleged injuries or damages in
connection with the released matters; (c) represents and warrants that it has
not purported to convey, transfer or assign any right, title or interest in any
released matter to any other person or entity and that the foregoing constitutes
a full and complete release of the released matters; (d) understands that this
release shall apply to all unknown or unanticipated results of the transactions
and occurrences described above, as well as those known and anticipated; and (e)
has consulted with legal counsel prior to signing this release, or had an
opportunity to obtain such counsel and knowingly chose not to do so, and
executes such release voluntarily, with the intention of fully and finally
extinguishing all released matters.
Section 13. Miscellaneous.
13.1 Notices. All notices required or permitted to be given under this
Agreement shall be in writing. Notices may be served by certified or registered
mail, postage paid with return receipt requested; by private courier, prepaid;
or personally. Mailed notices shall be deemed delivered five (5) days after
mailing, properly addressed. Couriered notices shall be deemed delivered on the
date that the courier warrants that delivery will occur. Personal delivery shall
be effective when accomplished. Unless a party changes its address by giving
notice to the other party
21
as provided herein, notices shall be delivered to the parties at the addresses
set forth on the signature page of this Agreement.
13.2 Sellers' liability. All undertakings and obligations of the
Sellers under this Agreement shall be joint and several ("solidaire et
indivisible").
13.3 Section Headings. The section headings in this Agreement are for
convenience only; they do not give full notice of the terms of any portion of
this Agreement and are not relevant to the interpretation of any provision of
this Agreement.
13.4 Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of Belgium.
13.5 Arbitration.
(a) All disputes arising out of or in connection with this
Agreement shall be submitted to binding arbitration under the Rules of
Conciliation and Arbitration of the International Chamber of Commerce (the "ICC
Rules"). Any such arbitration shall be conducted in Brussels, Belgium by a panel
of three arbitrators, comprised of one arbitrator appointed by each party to the
dispute and one neutral arbitrator appointed in accordance with ICC Rules;
provided, however, that for any dispute that arises in connection with the
determination of the License Value or the Working Capital Difference, the
baseball decision rules ("Baseball Arbitration") set forth in Section 13.5(b)
shall apply.
(b) In the event of a dispute in connection with the License
Value or the Working Capital Difference, either party may request by written
notice to the other party that it wishes to submit the disputed matter for
resolution by Baseball Arbitration in accordance with ICC Rules. The parties
agree to submit to arbitration before a single neutral arbitrator either agreed
to by the parties or appointed in accordance with ICC Rules. Within fifteen (15)
days (the "Submission Period") after the appointment of the arbitrator each
party shall submit to the arbitrator its own proposal for the resolution of the
contested issue provided that Sellers may only submit a single joint proposal.
Such submissions shall remain secret until after the arbitrator has received
each party's proposal, at which time the arbitrator shall inform each party of
the other's proposal. No such proposal may be amended after it is submitted to
the arbitrator. The arbitrator shall compare the proposals. The arbitrator shall
determine which proposal he or she believes to be the resolution most closely in
accordance with the relevant provisions of this Agreement and shall order the
adoption of such proposal as the relief granted. If any party fails to submit
its proposal by the end of the Submission Period, the arbitrator shall order the
adoption of the other party's proposal. The arbitrator may rely upon such
evidence as the arbitrator may choose in his or her discretion in making such
determination. Any such arbitration shall be conducted in Brussels, Belgium.
13.6 Severability. Any provision of this Agreement that is deemed
invalid or unenforceable shall be ineffective to the extent of such invalidity
or unenforceability, without rendering invalid or unenforceable the remaining
provisions of this Agreement.
13.7 Integration; Amendment. This Agreement constitutes the entire
agreement of the parties relating to the subject matter of this Agreement. There
are no promises, terms,
22
conditions, obligations, or warranties other than those contained in this
Agreement. This Agreement supersedes all prior communications, representations,
or agreements, verbal or written, among the parties relating to the subject
matter of this Agreement. This Agreement may not be amended except in writing
executed by the parties.
13.8 Waiver. No provision of this Agreement shall be waived unless the
waiver is in writing signed by the waiving party. No failure by any party to
insist upon the strict performance of any provision of this Agreement, or to
exercise any right or remedy consequent upon a breach thereof, shall constitute
a waiver of any such breach, of such provision or of any other provision. No
waiver of any provision of this Agreement shall be deemed a waiver of any other
provision of this Agreement or a waiver of such provision with respect to any
subsequent breach, unless expressly provided in writing.
13.9 Attorneys' Fees. Each party shall bear its own costs, fees and
expenses, including consultant, accounting and attorneys' fees, incurred in
connection with this Agreement and the transactions contemplated hereby, If any
suit or action arising out of or related to this Agreement is brought by any
party, the prevailing party or parties shall be entitled to recover, to the
extent permitted by applicable law, the costs and fees including without
limitation reasonable attorneys' fees, the fees and costs of experts and
consultants, copying, courier and telecommunication costs incurred by such party
or parties in such suit or action, including without limitation any post-trial
or appellate proceeding, or in the collection or enforcement of any judgment or
award entered or made in such suit or action.
13.10 Continuing Agreement; Binding Effect. This Agreement shall bind
and inure to the benefit of, and be enforceable by, the parties and their
respective successors, heirs, and permitted assigns.
13.11 Assignment. Neither party may assign this Agreement, in whole or
in part, without the express, written consent of the other parties.
13.12 No Third-Party Beneficiary Rights. No Person not a party to this
Agreement is an intended beneficiary of this Agreement, and no Person not a
party to this Agreement shall have any right to enforce any term of this
Agreement.
13.13 Counterparts. This Agreement may be executed in any number of
counterparts, all of which when taken together shall constitute one agreement
binding on all parties, notwithstanding that all parties are not signatories to
the same counterpart.
13.14 Further Assurances. Each party agrees, at the request of the
other party, at any time and from time to time after the date of this Agreement,
promptly to execute and deliver all such further documents, and promptly to take
and forbear from all such action, as may be reasonably necessary or appropriate
in order to more effectively confirm or carry out the provisions of this
Agreement.
13.15 Facsimile Signatures. This Agreement may be executed by
facsimile signatures, each of which shall be deemed an original and shall be
binding upon each of the undersigned as if signed in the original.
23
[SIGNATURE PAGES FOLLOW]
24
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first set forth above.
SELLERS:
/s/ Xxxx Xxxxxx
----------------------------------------
Xxxx Xxxxxx
/s/ Xxxxxxx xx Xxxxxx
----------------------------------------
Xxxxxxx xx Xxxxxx
/s/ Nicolas du Chastel
----------------------------------------
Nicolas du Chastel, represented for the
purposes of this agreement by Xxxxxxx xx
Xxxxxx, attorney-in-fact
/s/ Xxxxxxx Xxxxxxxx
----------------------------------------
Xxxxxxx Xxxxxxxx, represented for the
purposes of this agreement by Xxxxxxx
xx Xxxxxx, attorney-in-fact
25
MTH:
Which intervenes for the sole purpose of
approving Sections 3.2 and 7.5
MAC Telecom Holdings SA
Represented for the purposes of this
agreement by two directors:
/s/ Xxxx Xxxxxx
----------------------------------------
Name: Xxxxxxx Cat SPRL, represented
by Xxxx Xxxxxx
Title: Director
/s/ Xxxxxxx xx Xxxxxx
----------------------------------------
Name: Xxxxxxx xx Xxxxxx
Title: Director
PURCHASER:
Clearwire Europe S.a x.x.
/s/ Xxxx Xxxxx
----------------------------------------
Name: Xxxx Xxxxx
Title: Attorney-in-fact
Address:
Clearwire Europe S.a x.x.
0000 Xxxx Xxxxxxxxxx Xxxx. Xxxxx 000
Xxxxxxxx, XX 00000
Attention: Vice President, Legal
Affairs
Facsimile: (000) 000-0000
26
LIST OF SCHEDULES AND EXHIBITS:
Exhibits:
Exhibit A: List of shareholders of MAC Telecom, other than Purchaser and MTH
Exhibit B: Allocation
Exhibit C: Clearwire Shareholder Agreement
Exhibit D: Termination of Restrictive Covenant Agreement
Exhibit E: Resignation letters
Exhibit F: Individual professional services agreement
Exhibit G: Termination of MTH Shareholders Agreement
Exhibit H: Termination of Management Agreement
Exhibit I: Pledge Agreement
Exhibit J: Form of Termination of Agreement
Schedules:
Schedule 4.2: List of all MTH shareholders
Schedule 4.5(a): Unaudited balance sheets of MTH for the financial year ended
December 31, 2005, and for the five months ended May 31, 2006
Schedule 4.5(b): Seller Loans
Schedule 4.7: Liabilities of MTH
Schedule 4.10: Litigation
Schedule 4.11: List of agreements or undertakings to which MTH is a party or
otherwise bound
Schedule 4.12: List of MAC Telecom shareholders
Schedule 8.2(h): List of agreements which each Seller shall terminate
Schedule 8.6: List of key employees
27
Schedule 4.2: List of all MTH shareholders
Xxxxxxx xx Xxxxxx: 9,548 shares
Nicolas du Chastel: 7,295 shares
Xxxxxxx Xxxxxxxx: 5,192 shares
Xxxx Xxxxxx: 3,295 shares
Total: 25,330 shares
28
Schedule 4.5(a): Unaudited balance sheets of MTH for the financial year ended
December 31, 2005, and for the five months ended May 31, 2006
29
DBM-Tax & Accounting
Mac Telecom Holding XX XXXXX Date: 14/06/2006 15:46
0000 Xxxxxxxxx 2005: De01/01/2005 a 31/12/2005 Page: 1
ACTIF
31/12/2005
------------
ACTIFS IMMOBILISES 2.657.848,11
I. FRAIS D'ETABLISSEMENT
Frais de xxxxx.xx d'xxxx.xxxx. 200000 18.666,59
Amort. xxxxx xx xxxxxxxxxxxx 000000 -18.666,59
II. IMMOBILISATIONS INCORPORELLES 220,55
------------
Immobilisations incorporelles 210000 500,00
Amort. immobilisations incorp. 210009 -279,45
IV. IMMOBILISATIONS FINANCIERES 2.657.627,56
------------
A. ENTREPRISES LIEES 2.657.627,56
1. PARTICIPATIONS 2.657.627,56
------------
Participaties - Mac Telecom SA 280000 2.657.627,56
ACTIFS CIRCULANTS 233.830,46
VII. CREANCES A UN AN OU PLUS 157.779,54
------------
B. AUTRES CREANCES 157.779,54
TVA a recuperer 411000 15.417,40
Impots a recuperer 412000 30,30
C/C Administrateur Xxxxxxx xx Xxxxxx 416620 52.648,78
Interets sur X/X Xxxxxxx xx Xxxxxx 000000 4.894,87
C/C Adminsitrateur Nicolas du Chastel 416630 27.489,74
Interets sur X/X Xxxxxxx xx Xxxxxxx 000000 2.574,29
C/C Adminstrateur Xxxx Xxxxxx 416640 28.025,90
Interets sur C/C Xxxx Xxxxxx 416641 3.710,47
C/C administrateur Xxxxxxx Xxxxxxxx 416650 21.137,03
Interets sur C/C Xxxxxxx Xxxxxxxx 416651 1.850,76
IX. VALEURS DISPONIBLES 75.984,48
------------
ING comptes a vue 000-0000000-00 550100 75.984,48
X. COMPTES DE REGULARISATION 66,44
------------
Produits acquis 491000 66,44
------------
TOTAL ACTIF 2.891.678,57
============
DBM-Tax & Accounting
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0000 Xxxxxxxxx 2005: De01/01/2005 a 31/12/2005 Page: 2
PASSIF
31/12/2005
------------
CAPITAUX PROPRES 2.785.494,26
I. CAPITAL 2.533.000,00
------------
A. CAPITAL SOUSCRIT 2.533.000,00
Capital souscrit 100000 2.533.000,00
IV. RESERVES 252.494,26
------------
A. RESERVE LEGALE 126.650,00
Reserve legale 130000 126.650,00
D. RESERVES DISPONIBLES 125.844,26
Reserves disponibles 133000 125.844,26
DETTES 106.184,31
------------
IX. DETTES A UN AN AU PLUS 106.184,31
------------
C. DETTES COMMERCIALES 47.093,58
1. FOURNISSEURS 47.093,58
------------
Fournisseurs 440000 -14.629,82
Factures a recevoir 444000 61.723,40
E. DETTES FISCALES, SALARIALES ET SOCIALES 52.787,50
1. IMPOTS 52.787,50
------------
TVA a payer a regulariser 451500 787,50
Precompte professionnel retenu 453000 52.000,00
F. AUTRES DETTES 6.303,23
C/C Mac Telecom SA 483100 6.303,23
------------
TOTAL PASSIF 2.891.678,57
============
DBM-Tax & Accounting
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0000 Xxxxxxxxx 2005: De01/01/2005 a 31/12/2005 Page: 3
CHARGES
31/12/2005
------------
II. COUT DES VENTES ET DES PRESTATIONS 433.844,56
----------
B. SERVICES ET BIENS DIVERS 430.740,64
Honoraires experts-comptables 613200 2.290,00
honoraires consultants 613211 316.312,51
Publications legales 615300 138,13
Remunerations administr., gerants 618000 112.000,00
X. XXXXX. ET REDUCT. DE VAL. S/FRAIS ETC. 100,00
Amort. immobilisations incorp 630210 100,00
G. AUTRES CHARGES D'EXPLOITATION 3.003,92
Cotisation sociale societe 640300 695,00
Taxes regionales et communales 640500 208,92
Amendes 640800 2.100,00
V. CHARGES FINANCIERES 1.082,15
----------
A. CHARGES DES DETTES 961,20
Interets de retard TVA 650210 961,20
C. AUTRES CHARGES FINANCIERES 120,95
Frais bancaires 657000 120,94
Differences de paiement 658000 0,01
A. IMPOTS
Precompte mobilier 670500 25,56
Excedent de VA et precomptes 670900 -25,56
----------
TOTAL CHARGES 434.926,71
==========
DBM-Tax & Accounting
Mac Telecom Holding SA COMPTES DES RESULTATS Date: 14/06/2006 15:46
0000 Xxxxxxxxx 2005: De 01/01/2005 a 31/12/2005 Page: 4
PRODUITS
31/12/2005
------------
1. VENTES ET PRESTATIONS 440,000,04
------------
A. CHIFFRE D'AFFAIRES 440,000,04
C/A prestations de services 701000 440,000,04
IV. PRODUITS FINANCIERS 10,658,57
------------
A. PRODUITS DES IMMOBILISATIONS FINACIERES 10,658,16
Interets bancaires 750000 170,38
Interets sr compte courant 750200 10,487,78
C. AUTRES PRODUITS FINANCIERS 0,41
Difference de paiement 758000 0,41
XI. RESULTAT DE L'EXERCICE -15,731,90
------------
AFFECTATIONS ET PRELEVEMENTS -15,731,90
Dotation aux autres reserves 692100 -15,731,90
------------
TOTAL PRODUITS 434,926,71
============
DBM-Tax & Accounting
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0000 Xxxxxxxxx 2006: De 01/01/2006 a 31/05/2006 Page: 1
ACTIF
31/12/2005
------------
ACTIFS IMMOBILISES 2,657,806,44
------------
I. FRAIS D'ETABLISSEMENT
Frais de xxxxx.xx d'augm.capi. 200000 18,666,59
Amort, xxxxx xx xxxxxxxxxxxx 000000 -18,666,59
II. IMMOBILISATIONS INCORPORELLES 178,88
------------
Immobilisations incorporelles 210000 500,00
Amort, immobilisations incorp. 210009 -321,12
IV. IMMOBILISATIONS FINANCIERES 2,657,627,56
------------
A. ENTREPRISES LIEES 2,657,627,56
1. PARTICIPATIONS 2,657,627,56
------------
Participaties - Mac Telecom SA 280000 2,657,627,56
------------
ACTIFS CIRCULANTS 291,232,11
------------
VII. CREAMCES A UN AN OU PLUS 236,653,39
------------
A. CREANCES COMMERCIALES 88,733,34
Clients 400000 88,733,34
B. AUTRES CREANCES 147,920,05
TVA a recuperer 411000 1,219,54
Impots a recuperer 412000 30,30
C/C Administrateur Xxxxxxx xx Xxxxxx 416620 52 648,78
Interets sur C/C Xxxxxxx xx Xxxxxx 416621 6661,53
C/C Adminsitrateur Nicolas du Chastel 416630 27,489,74
Interets sur C/C Nicolas du Chastel 416631 3,496,32
C/C Adminstrateur Xxxx Xxxxxx 416640 28,025,9
Interets sur C/C Xxxx Xxxxxx 416641 4,650,89
C/C administrateur Xxxxxxx Xxxxxxxx 416650 21,137,03
Interets sur C/C Xxxxxxx Xxxxxxxx 416651 2,560,02
VALEURS DISPONIBLES 54,578,72
------------
ING comptes a vue 000-0000000-00 550100 54,578,72
------------
TOTAL ACTIF 2,949,038,55
============
DBM-Tax & Accounting
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0000 Xxxxxxxxx 2006: De 01/01/2006 a 31/05/2006 Page: 2
PASSIF
31/05/2006
------------
CAPITAUX PROPRES 2,785,494,26
------------
I. CAPITAL 2,533,000,00
------------
A. CAPITAL SOUSCRIT 2,533,000,00
Capital souscrit 100000 2,533,000,00
IV. RESERVES 252,494,26
------------
A. RESERVE LEGALE 126,650,00
Reserve legale 130000 126,650,00
D. RESERVES DISPONIBLES 125,844,26
Reserves disponibles 133000 125,844,26
------------
DETTES 99,051,43
------------
IX. DETTES A UN AN AU PLUS 80,384,77
------------
C. DETTES COMMERCIALES 60,454,54
1. FOURNISSEURS 60,454,54
------------
Fournisseurs 440000 60,454,54
E. DETTES FISCALES, SALARIALES ET SOCIALES 13,627,00
1. IMPOTS 13,777,00
------------
TVA a Payer a regulariser 451500 777,00
Precompte professinnel retenu 453000 13,000,00
2. REMUNERATIONS ET CHARGES SOCIALES -150,00
------------
Remunerations a payer 455000 -150,00
F. AUTRES DETTES 6,303,23
C/C Mac Telecom SA 483100 6,303,23
X. COMPTES DE REGULARISATION 18,666,66
------------
Charges a imputer 492000 18,666,66
------------
TOTAL PASSIF 2,884,545,69
============
BENEFICE: 64,492,86
DBM-Tax & Accounting
Mac Telecom Holding SA COMPTES DES RESULTATS Date: 29/05/2006 17:36
0000 Xxxxxxxxx 2006: De 01/01/2006 a 31/05/2006 Page: 3
CHARGES
31/05/2006
------------
II. COUT DES VENTES ET DES PRESTATIONS 123.089,61
-----------
B. SERVICES ET BIENS DIVERS 122.195,44
Honoraires experts-comptables 613200 2.160,00
Honoraires notaire/avocaf 613210 5.446,00
honoraires consultants 613211 65.531,90
Honoraires experts 613230 1.760,50
Frais deplac etrang.(avion,train,hotel) 615000 000,00
Xxxxx xx xxxxxxxxxx Xxxxxxxx 000000 224,15
Remunerations administr., gerants 618000 46.666,66
X. XXXXX. ET REDUCT. DE VAL. S/FRAIS ETC. 41,67
Amort. immobilisations incorp 630210 41,67
G. AUTRES CHARGES D'EXPLOITATION 852,50
Cotisatlon sociale societe 640300 852,50
V. CHARGES FINANCIERES 89,26
-----------
C. AUTRES CHARGES FINANCIERES 89,26
Frais bancaires 657000 89,26
-----------
TOTAL CHARGES 123.178,87
===========
DBM-Tax & Accounting
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0000 Xxxxxxxxx 2006. De 01/01/2006 a 31/05/2006 Page: 4
PRODUITS
31/05/2006
------------
I. VENTES ET PRESTATIONS 183.333,35
----------
A. CHIFFRE D'AFFAIRES 183.333,35
C/A prestations de services 701000 183.333,35
IV. PRODUITS FINANCIERS 4.338,38
----------
A. PRODUITS DES IMMOBILISATIONS FINACIERES 4.338,37
Interets sr compte courant 750200 4.338,37
C. AUTRES PRODUITS FINANCIERS 0,01
Difference de paiement 758000 0,01
----------
TOTAL PRODUITS 187.671,73
==========
BENEFICE 64.492,86
Schedule 4.5(b): Seller Loans
M I H DEBT AS OF 31ST MAY 2006
ACCUMULATED TOTAL AMOUNT
PERSON DEBT INTEREST OWED
------ ----------- ----------- ------------
Xxxx Xxxxxx E 28,025.90 E 4,650.90 E 32,676.80
Xxxxxxx xx Xxxxxx E 52,648.78 E 6,661.33 E 59,310.11
Xxxxxxx Xxxxxxxx E 21,137.03 E 2,560.03 E 23,697.06
Nicolas du Chastel E 27,489.74 E 3,496.73 E 30,986.47
----------- ---------- -----------
TOTAL E129,301.45 E17,368.99 E146,670.44
=========== ========== ===========
30
Schedule 4.7: Liabilities of MTH
None
31
Schedule 4.10: Litigation
None
32
Schedule 4.11: List of agreements or undertakings to which MTH is a party or
otherwise bound
Three management agreements with
1. X. Xxxxxxxx sprl - private company of Xxxxxxx Xxxxxxxx
2. WorldStar Service Ltd - private company of Xxxxxxx xx Xxxxxxx
0. Xxxxxxx Cat sprl - private company of Xxxx Xxxxxx
33
Schedule 4.12: List of MAC Telecom shareholders
MAC TELECOM SA: CAPITAL CHART
NO. OF
ORDINARY
ORDINARY SHARES SHARES
--------------- --------
MAC Telecom Holdings SA 7,441
Clearwire Europe S.a x.x. 7,218
Baltisches Haus Ltd 1,237
Aberdeen Capital Ltd 355
Xxxxxxxx Xxxxxx Xxxxxxxx-Xxxxx 000
Xxxxxxx xx Xxxxxxx 000
Xxxxxxxx & Cie 145
Xxxxxxx Xxxx Xxxxxxxxx-Xxxxxxxx 102
Xxxxxxxx Xxxxxxxx 102
Xxxxxx Xxxxxxxxx-Xxxxxxxx 87
Xxxxx Xxxxxxxxx 6
------
TOTAL 17,243
======
NO. OF
BENEFICIARY
BENEFICIARY SHARES SHARES
------------------ -----------
Clearwire Europe S.a x.x. 8,143
-----
TOTAL 8,143
=====
34
Schedule 8.2(h): List of agreements which each Seller shall terminate
Three management agreements with
1. X. Xxxxxxxx sprl - private company of Xxxxxxx Xxxxxxxx
2. WorldStar Service Ltd - private company of Xxxxxxx xx Xxxxxxx
0. Xxxxxxx Cat sprl - private company of Xxxx Xxxxxx
35
Schedule 8.6: List of key employees
Xxxxxxxx Xxxxxxx
Philippe Xxxxxxx
Xxxxxxx Caprasse
Gwena Demeulemeester
Xxxxxxx Xxxxxxxx
Xxxx Xxxxxxxxx
Xxxxxxx Xxxxxx
Xxxxx Xxxx
Xxxxxx Xxxxx
36
EXHIBIT A
LIST OF OTHER MAC SHAREHOLDERS
NAME # MAC SHARES
---- ------------
Baltisches Haus Ltd 1,237
Aberdeen Capital Ltd 355
Xxxxxxxx Xxxxxx Xxxxxxxx-Xxxxx 000
Xxxxxxx xx Xxxxxxx 000
Xxxxxxxx & Cie 145
Xxxxxxx Xxxx Xxxxxxxxx-Xxxxxxxx 102
Xxxxxxxx Xxxxxxxx 102
Xxxxxx Xxxxxxxxx-Xxxxxxxx 87
Xxxxx Xxxxxxxxx 6
-----
TOTAL 2,584
=====
1
EXHIBIT B
MTH SHAREHOLDING AND PRICE ALLOCATION
NUMBER OF %OF
NUMBER OF AS % of SHARES PURCHASE CLEARWIRE ADDITIONAL
MAC TELECOM HOLDINGS SA SHAREHOLDINGS MTH SHARES IN MTH PRICE ($) STOCK PAYMENT
------------------------------------- ---------- -------------- --------- --------- ----------
Xxxxxxx xx Xxxxxx 9,548 37.694% 844,043 304,228 35.83
Nicolas du Chastel 7,295 28.800% 348,780 274,147 32.31
Xxxxxxx Xxxxxxxx 5,192 20.497% 448,184 165,400 19.49
Xxxx Xxxxxx 3,295 13.008% 306,557 104,989 12.37
------ ------- --------- -------
GROSS TOTAL: 25,330 100.000% 1,947,564 848,764
====== ======= ========= =======
Holdback(1) -250,000 --
--------- -------
NET TOTAL (TO BE PAID AT CLOSING): 1,697,564 848,764
========= =======
----------
(1) i.e. 62,500 $ for each Seller
1
EXHIBIT C (I)
JOINDER IN STOCKHOLDERS AGREEMENT
This Joinder in Stockholders Agreement ("Joinder") is made and entered into
this ____ day of __________, 2006, by and between Clearwire Corporation, a
Delaware corporation (the "Company"), and the party whose signature appears
below (the "Joining Party").
RECITALS:
WHEREAS, the Joining Party has acquired or intends to acquire shares of capital
stock of the Company; and
WHEREAS, pursuant to Section 13.09 of that certain Amended and Restated
Stockholders Agreement, between the Company and its stockholders, dated as of
March 16, 2004 (the "Stockholders Agreement"), the Joining Party may become a
party to the Stockholders Agreement by execution of an instrument such as this
Joinder.
NOW, THEREFORE, the Joining Party agrees as follows:
1. JOINDER
By execution of this Joinder by the Joining Party and acceptance hereof by
the Company, the Joining Party is and agrees to become a party to, subject to
all the conditions, restrictions, obligations and duties of a Stockholder of the
Company under the Stockholders Agreement, including the restrictions on transfer
of the shares acquired from the Company and the requirement that the Joining
Party vote its shares in accordance with the terms thereof.
2. AGREEMENT TO BE BOUND BY AGREEMENT
This Joinder shall in all respects, including all matters of construction,
validity and performance, be governed by, and construed and enforced in
accordance with, the laws of the State of Delaware, without reference to any
rules governing conflicts of laws.
3. COUNTERPARTS
This Joinder may be executed in any number of counterparts, each of which
shall be an original, but all of which together shall constitute one instrument.
COMPANY: JOINING PARTY:
By: By:
--------------------------------- ------------------------------------
Name: Name:
------------------------------- ----------------------------------
Title: Title:
------------------------------ ---------------------------------
Date: Date:
------------------------------- ----------------------------------
1
EXHIBIT C (II)
CLEARWTRE STOCKHOLDERS AGREEMENT
2
CLEARWIRE CORPORATION
AMENDED AND RESTATED STOCKHOLDERS AGREEMENT
This Amended and Restated Stockholders Agreement ("Agreement") is made as
of the 16th day of March, 2004 by and among Clearwire Corporation, a Delaware
corporation (the "Company"), and each stockholder of the Company listed on
Schedule A hereto executing this Agreement (a "Stockholder").
RECITALS
A. Flux Fixed Wireless, LLC ("FFW") has formed the Company to engage
in strategic acquisitions to assemble spectrum rights and other assets to
develop a competitive wireless broadband services company.
B. The parties deem it in their respective best interests to provide
for an agreed composition of the Board of Directors, for certain restrictions on
the transfer of any interest in the current or future classes of the capital
stock of the Company (the "Shares"), and for the purchase of Shares upon the
occurrence of certain events, and the parties believe that such restrictions
will minimize the business disruption that could result from transfers and
decisions not made in accordance with this Agreement.
C. The Company and certain Stockholders entered into that certain
Stockholders Agreement dated as of November 13, 2003 (the "Original Agreement").
D. Prior to the date hereof, NextNet Wireless, Inc. ("NextNet") has
agreed to have a subsidiary of the Company merge with and into NextNet, and
pursuant to such merger, certain stockholders of NextNet will receive shares of
the Company's Class A Common Stock and warrants to purchase shares of the
Company's Class A Common Stock.
E. The Stockholders own 100% of the issued and outstanding Shares
(such issued and outstanding Shares, together with any securities of the Company
that Stockholders may later acquire, are referred to collectively as the
"Stock").
F. The parties desire to amend the Original Agreement as set forth
herein.
G. Certain capitalized terms used in this Agreement have the
definitions provided in Section 12 hereof.
THEREFORE, for good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the parties, intending legally to be bound,
agree as follows:
AGREEMENT
1. PREEMPTIVE RIGHTS
1.01 GRANT OF PREEMPTIVE RIGHTS
The Company hereby grants to each Eligible Stockholder and each Eligible
NextNet Stockholder the preemptive rights set forth in this Section 1 with
respect to each issuance of Shares, or securities or instruments convertible
into or exchangeable or exercisable for any Shares, of any class of capital
stock of the Company, other than the Stock that is issued and outstanding as of
the date of this Agreement and other than Shares issued or issuable in the
following circumstances (collectively, subject to the following exceptions, "New
Shares"):
(a) Shares issued pursuant to Section IV, Section 2.(d) of the Certificate;
(b) Shares (and/or options, warrants or other Share purchase rights, and
the Shares issued pursuant to such options, warrants or other rights) issuable
or issued to employees, consultants, directors, vendors, lessors or others with
whom the Company conducts business, provided that such shares, options, warrants
or other rights are issued directly in a transaction approved by the Board of
Directors of the Company or pursuant to a stock option plan or restricted stock
plan approved by the Board of Directors of the Company and provided further that
each of the foregoing transactions is primarily for non-financing purposes;
(c) Shares (and/or options, warrants or other Share purchase rights, and
the Shares issued pursuant to such options, warrants or other rights) issued to
financial institutions or lessors in connection with commercial credit
arrangements, equipment financing or similar transactions;
(d) Shares (and/or options, warrants or other Share purchase rights, and
the Shares issued pursuant to such options, warrants or other rights) issued
pursuant to transactions involving technology licensing, research or development
activities, the use or acquisition of strategic assets, properties or rights, or
the distribution, manufacture or marketing of the Company's products, provided
that each of the foregoing transactions is primarily for non-financing purposes;
(e) Shares issuable or issued in connection with bona fide acquisitions of
or by the Company whether by merger, consolidation, sale of assets, sale or
exchange of stock or otherwise, the terms of which are approved by the Board of
Directors of the Company;
(f) Shares (and/or options, warrants or other Share purchase rights, and
the Shares issued pursuant to such options, warrants or other rights) issued or
issuable (i) to the public pursuant to the IPO or (ii) upon exercise of warrants
or rights granted to underwriters in connection with such IPO;
(g) Shares (and/or options, warrants or other Share purchase rights, and
the Shares issued pursuant to such options, warrants or other rights) issuable
or issued pursuant to agreements and warrants existing on the date hereof that
are listed on Schedule 1.01 to this Agreement;
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(h) Shares issued upon conversion of convertible securities or instruments
outstanding on the date hereof that are issued in compliance with the preemptive
rights set forth in this Section 1; and/or
(i) Shares issued in connection with any stock split, stock dividend,
reserve stock split or other distribution of shares that does not affect the
economic interests or rights of holders of Shares.
1.02 EXERCISE OF PREEMPTIVE RIGHTS
Each time after the date of this Agreement and prior to the time that the
Company proposes to offer any New Shares, the Company shall first make an
offering of such New Shares to the Eligible Stockholders and the Eligible
NextNet Stockholders in accordance with this Section 1.02.
(a) The Company shall deliver a notice (the "Issue Notice") to the Eligible
Stockholders and the Eligible NextNet Stockholders stating (i) the bona fide
intention of the Company to offer such New Shares, (ii) the number of such New
Shares to be offered, and (iii) the price and terms upon which the Company
proposes to offer such New Shares.
(b) By written notification received by the Company, within 10 business
days after receipt of the Issue Notice, each Eligible Stockholder and each
Eligible NextNet Stockholder may elect to purchase, at the price and on the
terms specified in the Issue Notice, a portion of such New Shares that equals
the proportion that the number of shares of Stock including any options,
warrants or other share purchase rights held by such Stockholder bears to the
total number of shares of Stock of the Company then outstanding, on a fully
diluted basis, but excluding (i) any options, warrants or other rights to
acquire Shares where the fair market value of the Shares issuable on the
exercise of such options, warrants or other rights, as determined in good faith
by the Board of Directors of the Company, is less that the exercise price of
such options, warrants or other rights and (ii) any Shares and options, warrants
or other rights to acquire Shares that are reserved but unallocated pursuant to
any stock plan. Such written notification shall be a binding, irrevocable
commitment to purchase such New Shares.
(c) If Eligible Stockholders and the Eligible NextNet Stockholders do not
elect to purchase all of the New Shares that Eligible Stockholders and the
Eligible NextNet Stockholders are entitled to purchase under subsection (b), the
Company may offer the unsubscribed portion of such New Shares to any Persons at
a price not less than, and upon terms no more favorable to the offeree, than
those specified in the Issue Notice, provided that the Company completes the
offer and sale of such unsubscribed portion within 120 business days after the
date the applicable Issue Notice is first delivered to stockholders of the
Company.
(d) Each of HITN and Clearwire may assign its rights under this Section 1
to a Designee; provided, that the Company shall only be obligated to deliver
Issue Notices to HITN and Clearwire. No other Stockholder may assign its rights
under this Section 1 without the consent of the Company which may be withheld at
its sole discretion.
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1.03 RECAPITALIZATIONS, REORGANIZATIONS, BANKRUPTCY
The Company grants to each Eligible Stockholder and each Eligible NextNet
Stockholder a preemptive right to participate on a pro rata basis (calculated
pursuant to Section 1.02(b) above) with any XxXxx Entity in any
recapitalization, reorganization, bankruptcy or similar transaction of the
Company effected in such a manner that the preemptive rights granted pursuant to
Section 1.01 do not apply (a "Restructuring"). The Company shall deliver a
notice (the "Restructuring Notice") to the Eligible Stockholders and the
Eligible NextNet Stockholders stating (i) the bona fide intention of the Company
to engage in a Restructuring, (ii) a description of the Restructuring, and (iii)
the price and terms upon which the Eligible Stockholders and Eligible NextNet
Stockholders will be entitled to participate. By written notification received
by the Company, within 10 business days after receipt of the Restructuring
Notice, each Eligible Stockholder and each Eligible NextNet Stockholder may
elect to participate in the Restructuring at the price and on the terms
specified in the Restructuring Notice, which indicates price and terms shall be
identical to those offered to the XxXxx Entities. Such written notification
shall be a binding, irrevocable commitment to participate in the Restructuring
on the same terms and conditions as the XxXxx Entities.
1.04 TERMINATION OF PREEMPTIVE RIGHTS
If an Eligible NextNet Stockholder fails to fully exercise its preemptive
rights pursuant to Section 1.01 or Section 1.03 at any time, then such Eligible
NextNet Stockholder shall no longer be entitled to any preemptive rights
pursuant Section 1.01 and Section 1.03 and such rights shall be terminated in
their entirety with respect to such NextNet Stockholder; provided, however, that
such rights shall not terminate in connection with the first opportunity to
exercise the rights granted under Sections 1.01 and 1.03 so long as the Eligible
NextNet Shareholder has purchased at least 50% of the Shares that the Eligible
NextNet Shareholder was entitled to purchase.
2. ANTI-DILUTION RIGHTS
2.01 GRANT OF ANTI-DILUTION RIGHTS
The Company shall not issue and sell or agree to issue and sell New Shares
to a XxXxx Entity for consideration per share that is less than the Trigger
Price in effect immediately prior to such issue (each, a "Dilutive Issuance"),
unless the Company concurrently issues to each of HITN, ISA, Clearwire and each
NextNet Stockholder (or their respective Permitted Transferees) for no
consideration a number of New Shares equal to (i) such Stockholder's Adjusted
Shares less (ii) such Stockholder's Original Shares. No fractional Shares shall
be issued pursuant to this Section 2.01. The number of Shares issued shall be
rounded up to the nearest integral number of whole Shares.
For the purposes of this Section 2.01, for each Dilutive Issuance, the
following terms shall have the following meanings:
(a) "Adjusted Shares" means, for each of HITN, ISA, Clearwire and each
NextNet Stockholder (or their respective Permitted Transferees), the number
obtained by dividing (x) such Stockholder's Original Shares by (y) the product
of (1) the Trigger Price in effect immediately prior to such issue multiplied by
(2) the Adjustment Ratio.
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(b) "Adjustment Ratio" means the fraction in which (i) the numerator is the
sum of (A) the total number of all shares of capital stock of the Company issued
and outstanding immediately prior to Dilutive Issuance, and (B) the number of
shares that the aggregate consideration received by the Company from the XxXxx
Entities in the Dilutive Issuance would purchase at the Trigger Price in effect
immediately prior to such Dilutive Issuance, and (ii) the denominator is the sum
of (C) the total number of all shares of capital stock of the Company issued and
outstanding immediately prior to the Dilutive Issuance and (D) the total number
of all New Shares that the Company issues to the XxXxx Entities in the Dilutive
Issuance. For the purposes of this Section 2.01, the total number of all shares
of capital stock of the Company issued and outstanding immediately prior to the
Dilutive Issuance shall be determined on a fully-diluted and as-converted to
Class A Common Stock basis (but excluding any shares and options, warrants or
other rights to acquire shares that are reserved but unallocated pursuant to any
stock plan);
(c) "Original Shares" means, for each of HITN, ISA, Clearwire and each
NextNet Stockholder (or their respective Permitted Transferees), the total
number of Shares held by HITN, ISA, Clearwire or NextNet Stockholders, as
applicable, on March ___, 2004 or hereafter acquired by HITN, ISA or Clearwire,
as applicable, pursuant to an agreement with the Company existing on the date
hereof (other than pursuant to this Agreement), excluding any Shares acquired at
an effective price less than the Trigger Price in effect immediately prior to
the issuance that results in an anti-dilutive adjustment pursuant to this
Section 2.01, and that are held by such Stockholder immediately prior to a
Dilutive Issuance (as adjusted for any stock split, stock dividend, reverse
stock split or other distribution of shares); and
(d) "Trigger Price" shall initially mean the Original Issue Price. The
Trigger Price shall be proportionately adjusted from time to time for any stock
splits (subdivisions or combinations), stock dividends, recapitalizations or
reorganizations pursuant to which securities of the Company are issued with
respect to a Stockholder's Original Shares.
2.02 AUTOMATIC WAIVER OF ANTI-DILUTION RIGHTS
If a Stockholder exercises its preemptive rights pursuant to Section 1
hereof with respect to any new financing that would otherwise trigger the rights
under this Section 2, such Stockholder's exercise of its preemptive rights shall
be deemed an automatic waiver of such Stockholder's rights to receive additional
Shares pursuant to Section 2.01.
2.03 TERMINATION OF ANTI-DILUTION RIGHTS
The rights granted under this Section 2 shall terminate immediately after
the closing of one or more equity financing transactions in which the Company
raises an aggregate of $75,000,000 at a pre-money valuation of at least
$250,000,000 and a value per Share of Common Stock of at least $3.00, as
established in good faith by the Company's Board of Directors.
3. ADDITIONAL XXXXX ENTITY INVESTMENTS
The parties acknowledge and agree that the XxXxx Entities shall have the
unfettered right to invest additional funds and property in the Company at any
time and from time to time in
5
exchange for additional Shares of Class B Common Stock at the higher of (i) the
higher of the Original Issue Price or the Current Price, or (ii) the price
otherwise established for such purpose by agreement between the Company and one
or more of the XxXxx Entities or by decision of the Board of Directors from time
to time, subject only to the rights of the other Stockholders under Section 1
hereof. If the price for the additional Shares of Class B Common Stock is less
than the higher of the Original Issue Price or the Current Price, the
transaction shall be fair to the Company and require the approval of the
Disinterested Directors; provided further, that the approval of the
Disinterested Directors shall not be required in the event the purchase of
Shares by a XxXxx Entity is pursuant to the exercise of its preemptive rights
pursuant to Section 1 hereof.
4. RESTRICTIONS ON TRANSFERS
4.01 DEFINITION OF A TRANSFER
For purposes of this Agreement the term "Transfer" shall be interpreted
broadly to include, by way of example and without limitation whatsoever, any
direct or indirect sale, assignment, award, confirmation, distribution, bequest,
donation, trust, pledge, encumbrance, hypothecation, or other transfer or
disposition, for consideration or otherwise, whether voluntarily, involuntarily,
by operation of law, or otherwise. In addition, with respect to a Stockholder
that is an entity, the term "Transfer" includes (i) the direct or indirect
transfer of a controlling ownership or voting interest in such Stockholder or in
the ultimate direct or indirect controlling Person (or group of Persons acting
in concert) of such Stockholder, (ii) any transaction such as new issuances of
equity, a merger or other business combination, spin-off or distribution that
would result in a Change in Control of such Stockholder or of the ultimate
direct or indirect controlling Person (or group of Persons) of such Stockholder,
and (iii) any dividend, distribution, or other transfer of Stock from the
Stockholder to any of its owners, in dissolution, liquidation, or otherwise.
4.02 GENERAL RESTRICTIONS
No Share or any interest therein, whether legal, beneficial or otherwise,
shall be validly Transferred, and no purported transferee shall be recognized as
a Stockholder of the Company for any purpose whatsoever, except in accordance
with the terms of this Agreement. A Transfer or attempt to Transfer subject to
the terms of this Agreement shall be deemed to occur whenever an interest in a
Share is transferred or is attempted to be transferred, whether voluntarily,
involuntarily, by operation of law, or otherwise, whether or not any change in
the record of the ownership of the Shares occurs.
4.03 PERMITTED TRANSFERS
Except for the purposes of Section 4.04, the definition of the term
"Transfer" shall not include, and the restrictions on Transfers in this
Agreement shall not apply to, any of the following transactions (each, a
"Permitted Transfer"):
(a) Any issuance of equity securities by the Company or purchase of Shares
by the Company.
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(b) Any transfer by a Stockholder of all, but not less than all, of such
Stockholder's Shares to the spouse or any lineal descendant of such Stockholder,
including adopted children, or to a trust for the exclusive benefit of such
Stockholder or such Stockholder's spouse or lineal descendants (provided, in the
case of a trust, that the existing trustees of such trust have the power to act
with respect to the trust's assets without court approval).
(c) Any transfer to the estate or personal representative of the estate of
a deceased Stockholder.
(d) Any transfer by Clearwire to any Qualified Clearwire Stockholder or any
Qualified Transferee, provided, that immediately after giving effect to such
transfer the total number of Clearwire Stockholders (including Clearwire itself)
will not exceed thirty-three (33).
(e) Any transfer after the fourth anniversary of the date of this
Agreement, by a venture capital fund that is winding down and liquidating to (i)
the partners, members or other equity holders of such fund, (ii) the partners,
members or other equity holders or employees of the managing or controlling
partners, members or other equity holders of such fund and (iii) a trust for the
benefit of any of the foregoing.
(f) Any transfer of Stock to a XxXxx Entity (other than the Company and its
subsidiaries).
(g) Any transfer by a XxXxx Entity to strategic partners, Associates, or
Affiliates of a XxXxx Entity.
(h) Any conversion, exchange, or exercise of convertible, exchangeable, or
exercisable securities, stock options, or warrants if in all cases the holder of
the issued Stock after such conversion or exercise is the same as the holder of
the converted or exercised securities.
(i) Any pledge of Shares pursuant to a bona fide loan transaction which
creates a mere security interest (with no rights to vote the Shares), provided
that foreclosure of such pledge is not a Permitted Transfer unless it otherwise
complies with this Section 4.03.
(j) Any transfer in connection with a share exchange, merger,
consolidation, or reorganization of the Company that is approved by the Company
or its stockholders in accordance with the Governing Documents, the DGCL, and
this Agreement.
(k) Any transfer by a Stockholder to a Qualified Transferee who is
acquiring all, but not less than all, of such Stockholder's Shares with the
prior written consent of the Company, which shall not be unreasonably
conditioned, withheld or delayed.
(l) Any transfer by a Stockholder with the prior written consent of the
Company, which it may withhold in its sole discretion.
(m) Any transfer after a Termination Event.
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4.04 CONDITIONS PRECEDENT TO ALL TRANSFERS AND PERMITTED TRANSFERS
No Stockholder shall Transfer any Stock except in compliance with
applicable federal and state securities laws. The Company may, as a condition to
any proposed Transfer pursuant to an exemption from the registration
requirements under applicable federal and state securities laws, require that
the Stockholder proposing to Transfer Stock provide the Company with an opinion
of counsel reasonably satisfactory to the Company stating that the Transfer is
so exempt. No Transfer shall be effective unless such Transfer is made in
accordance with applicable federal and state securities laws and the transferee
has executed and delivered a Joinder in the form attached as Exhibit A, in favor
of the Company and each Stockholder, stating that by acquiring such Stock, the
transferee has agreed to all terms and conditions of this Agreement as if such
transferee were an original party hereto.
5. XXXXX ENTITY PURCHASE RIGHTS
5.01 RIGHT OF FIRST REFUSAL
With respect to any Transfer, or agreement to engage in a Transfer, prior
to the earlier of (i) January 1, 2009 or (ii) a Termination Event, the XxXxx
Entities shall have, and each other Stockholder hereby irrevocably grants to the
XxXxx Entities, the rights (the "Right of First Refusal") described in this
Section 5.01.
(a) A Stockholder (other than a XxXxx Entity) (the "Selling Stockholder")
that desires to Transfer its Stock in compliance with this Section 5.01 must
first receive a bona fide, written, binding offer and commitment ("Offer") for
the acquisition of any or all of the Transferor's Shares from a Qualified
Transferee (other than an Affiliate or an Associate of the Selling Stockholder),
that is capable of consummating the proposed acquisition on the terms of the
Offer, conditioned only on the exercise of Stockholder rights under this
Agreement and satisfaction of customary closing conditions. Upon receipt and
acceptance of an Offer, the Selling Stockholder shall give written notice (the
"ROFR Notice") to FFW stating that the Selling Stockholder intends to Transfer
Stock. The ROFR Notice shall identify the Qualified Transferee, specify the type
and number of shares of Stock to be Transferred to the Qualified Transferee (the
"ROFR Shares"), specify the per share price (in cash or other consideration)
(the "Sale Price") that the Qualified Transferee has agreed to pay for the ROFR
Shares, and enclose an accurate summary of all terms and conditions of the
proposed transfer.
(b) The ROFR Notice shall constitute the Selling Stockholder's binding
offer to sell the ROFR Shares to the XxXxx Entities on the terms set forth in
the ROFR Notice and this Agreement. The XxXxx Entities, or any of them, shall
have 10 business days after delivery of the ROFR Notice (subject to any required
regulatory approvals, provided that the appropriate XxXxx Entity is using
commercially reasonable efforts to satisfy such regulatory condition as soon as
reasonably practicable) (the "ROFR Exercise Period") to exercise its right to
purchase all, but not less than all of, the ROFR Shares at the Sale Price and
upon the other terms and conditions set forth in the ROFR Notice by written
notice to the Selling Stockholder within the ROFR Exercise Period.
8
(c) Failure to deliver such a notice within the ROFR Exercise Period shall
constitute waiver of the Right of First Refusal with respect to the ROFR Shares,
and the Selling Stockholder shall have ninety (90) business days thereafter to
complete the transfer of the ROFR Shares to the Qualified Transferee pursuant to
the Offer; otherwise, the ROFR Shares shall thereupon be again subject to the
right of first refusal described in this Section 5.01 before any transfer can be
made.
(d) Delivery of a notice exercising the Right of First Refusal shall create
a binding contract between the applicable XxXxx Entities and the Selling
Stockholder for the purchase and sale of the ROFR Shares at the Sale Price and
on the terms and conditions in the Offer and this Section 5.01. In that event,
the XxXxx Entities exercising the right of first refusal shall deliver the Sale
Price for the ROFR Shares, in immediately available funds, to the Selling
Stockholder to effectuate the Transfer of the ROFR Shares within five business
days after the end of the ROFR Exercise Period or the satisfaction of the
conditions to closing contained in the ROFR Notice provided that the appropriate
XxXxx Entity is using commercially reasonable efforts to cause such condition to
be satisfied as soon as reasonably practicable. The Selling Stockholder shall
effectuate the Transfer of the ROFR Shares by promptly delivering to the
applicable XxXxx Entities one or more certificates, properly endorsed for
transfer, that represent the ROFR Shares, together with stock powers and such
other closing documentation at the applicable XxXxx Entities may reasonably
request.
(e) A Transfer to one of the XxXxx Entities or a Qualified Transferee in
accordance with this Section 5.01 is not subject to Section 4.02 or Section 7.
5.02 RIGHT OF FIRST OFFER
At any time prior to the earlier of (i) January 1, 2009 or (ii) a
Termination Event, when the XxXxx Entities do not have the Right of First
Refusal (other than with respect to a Permitted Transfer), the XxXxx Entities
shall have, and each Stockholder hereby irrevocably grants to the XxXxx
Entities, the rights (the "Right of First Offer") described in this Section
5.02:
(a) A Selling Stockholder that desires to Transfer its Stock in compliance
with this Section 5.02 must first give written notice (the "ROFO Notice") to FFW
stating that the Selling Stockholder intends to Transfer Stock. The ROFO Notice
shall identify the Qualified Transferee, if known, and specify the type and
number of shares of Stock to be Transferred (the "ROFO Shares") and specify the
proposed Sale Price.
(b) The ROFO Notice shall constitute the Selling Stockholder's binding
offer to sell the ROFO Shares to the XxXxx Entities on the terms set forth in
the ROFO Notice and this Agreement. The XxXxx Entities, or any of them, shall
have 10 business days after delivery of the ROFO Notice (subject to any required
regulatory approvals, provided that the appropriate XxXxx Entity is using
commercially reasonable efforts to satisfy such regulatory condition as soon as
reasonably practicable) (the "ROFO Exercise Period") to exercise its right to
purchase all, but not less than all of, the ROFO Shares at the Sale Price and
upon the other terms and conditions set forth in the ROFO Notice by written
notice to the Selling Stockholder within the ROFO Exercise Period.
9
(c) Failure to deliver such a notice within the ROFO Exercise Period shall
constitute waiver of the Right of First Offer with respect to the ROFO Shares,
and the Selling Stockholder shall have ninety (90) calendar days thereafter to
complete the transfer of the ROFO Shares to a Qualified Transferee at a price no
lower than the Sale Price and the other terms set forth in the ROFO Notice, or
other terms that taken as a whole are no less favorable to the Selling
Stockholder, otherwise, the ROFO Shares shall thereupon be again subject to the
Right of First Offer described in this Section 5.02 before any transfer can be
made.
(d) Delivery of a notice exercising the Right of First Offer shall create a
binding contract between the applicable XxXxx Entities and the Selling
Stockholder for the purchase and sale of the ROFO Shares at the Sale Price and
on the terms and conditions in the ROFO Notice and this Section 5.02. In that
event, the XxXxx Entities exercising the Right of First Offer shall deliver the
Sale Price for the ROFO Shares, in immediately available funds, to the Selling
Stockholder to effectuate the Transfer of the ROFO Shares within five business
days after the end of the ROFO Exercise Period or the satisfaction of the
conditions to closing contained in the ROFO Notice provided that the appropriate
XxXxx Entity is using commercially reasonable efforts to cause such condition to
be satisfied as soon as reasonably practicable. The Selling Stockholder shall
effectuate the Transfer of the ROFO Shares by promptly delivering to the
applicable XxXxx Entities one or more certificates, properly endorsed for
transfer, that represent the ROFO Shares, together with stock powers and such
other closing documentation at the applicable XxXxx Entities may reasonably
request.
(e) A Transfer in accordance with this Section 5.02 is not subject to
Section 4.02 or Section 7.
6. PARTICIPATION IN TRANSFERS BY XXXXX ENTITIES
6.01 DRAG/TAG NOTICE
In the event ("Participation Trigger") any one or more XxXxx Entities (the
"Selling XxXxx Entities") commits to a Transfer of 25% or more of all Stock then
held by all XxXxx Entities in a bona fide arm's-length transaction, or a series
of related bona fide arm's length transactions, with a Person that is not an
Affiliate of the XxXxx Entities, then before consummating the sale, the Selling
XxXxx Entities shall give written notice (the "Drag/Tag Notice") to all other
Stockholders informing them of the material terms of the Transfer, including the
identity of the potential purchaser, the type and number of shares of Stock to
be transferred to the potential purchaser (the "Drag/Tag Shares"), the weighted
average price per share to be paid by the potential purchaser to any selling
XxXxx Entities (the "Drag/Tag Price"), and the transfer date.
6.02 EXERCISE OF DRAG ALONG RIGHT
(a) The Selling XxXxx Entities shall have the right (subject to the
regulatory approvals), exercisable upon written notice to the other Stockholders
within 10 business days after the delivery of the Drag/Tag Notice, to require
all other Stockholders to Transfer their Drag Along Pro Rata Share (as defined
herein) concurrently with the Transfer by the Selling XxXxx Entities at the
Drag/Tag Price and on the same terms and conditions as those received by the
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Selling XxXxx Entities (the "Drag Along Right"). The Selling XxXxx Entities
shall specify in the Drag/Tag Notice the number of shares to be sold by each
Stockholder, which shall equal the product of the Stockholder's Percentage times
the number of Drag/Tag Shares (the "Drag Along Pro Rata Share").
(b) Notwithstanding Section 6.01 and subparagraph (a) of this Section 6.02,
with respect to any Shares held by HITN, the Selling XxXxx Entities may only
exercise the Drag Along Right if such Selling XxXxx Entity commits to a Transfer
of 51% or more of all Stock then held by all XxXxx Entities in a bona fide
arm's-length transaction with a Person that is not an Affiliate of the XxXxx
Entities unless the Drag/Tag Price equals 2 times the Original Issue Price.
6.03 EXERCISE OF TAG-ALONG RIGHT
If, upon the occurrence of a Participation Trigger, none of the Selling
XxXxx Entities invoke their Drag Along Rights pursuant to Section 6.02, then
before consummating the sale, each Stockholder shall have the right (subject to
the regulatory approvals) ("Tag Along Right"), exercisable upon written notice
to the Selling XxXxx Entities within 10 business days after the delivery of the
Drag/Tag Notice, to participate in the Selling XxXxx Entities' Transfer of
Drag/Tag Shares. Such written notice shall constitute the Stockholder's election
to cause the transferee to purchase, at the Drag/Tag Price and on the terms and
conditions as those received by the Selling XxXxx Entities, a portion of the
Stockholder's Stock equal the product of the Stockholder's Percentage times the
number of Drag/Tag Shares.
6.04 DELIVERY OF SHARES; CLOSING
At least three days prior to the transfer date (provided that the other
Stockholders shall have received at least 10 business days' advance notice of
the transfer date), all selling Stockholders shall deliver to the Company the
certificates evidencing their respective Stock to be sold under this Section
5.02, duly endorsed for transfer to the potential purchaser. On the transfer
date and provided that the XxXxx Entities consummate the Transfer of their pro
rata share of the Drag/Tag Shares to the potential purchaser at the Drag/Tag
Price and on the same terms and conditions, then the Company shall deliver the
certificates evidencing all Drag/Tag Shares held by the Stockholders to the
purchaser against payment of the Drag/Tag Price for such Stock, and the Company
shall promptly remit such payment to the Stockholders in the respective amounts
due them without reduction or adjustment of any kind except as may be required
by law.
6.05 INAPPLICABILITY OF TRANSFER RESTRICTIONS
A Transfer in accordance with this Section 6 is not subject to Section 4.02
or 7.
6.06 REMEDIES
Each Stockholder hereby consents to every sale pursuant to this Section 6,
and hereby agrees to sell its Stock on the terms and conditions approved by the
XxXxx Entities. All Stockholders shall take all necessary actions approved by
the XxXxx Entities in connection with the consummation of the sale, so long as
all such actions are equally applicable to the XxXxx
11
Entities, including the execution of such agreements and such instruments and
other actions reasonably necessary (a) to the extent required by the potential
purchaser, to make, severally but not jointly, the same customary
representations, warranties, indemnities, covenants, conditions, escrow
agreements, and other agreements relating to such sale and (b) to effectuate the
allocation and distribution of the aggregate consideration upon the sale as set
forth in this Section 5.02.
In the event a Stockholder fails to comply with the requirements of this
Section 5.02, the XxXxx Entities and the Company shall have, in addition to
whatever other rights they may have in law or in equity, such call rights
against such Stockholder as shall be necessary and appropriate to effect the
intent of this Section 6, and the Stockholders agree to be bound by such call
rights.
7. OTHER EVENTS CONSTITUTING AN OFFER TO PURCHASE SHARES
7.01 REPURCHASE EVENTS
Except for Permitted Transfers and Transfers pursuant to Section 5 or 6 (as
to Right of First Refusal, Drag-Along Rights, and Tag-Along Rights), any one or
more of the following events or conditions with respect to a Stockholder shall
be deemed to constitute a "Repurchase Event" with respect to such Stockholder's
Shares:
(a) The filing of a petition in bankruptcy by or against a Stockholder or
any general assignment by a Stockholder for the benefit of such Stockholder's
creditors;
(b) The dissolution or commencement of liquidation of a Stockholder that is
an entity, except for a Transfer in accordance with Section 4.03(d) or 4.03(k);
(c) The Change of Control of a Stockholder that is an entity without the
prior written consent of the Company, which such consent shall not be
unreasonably withheld or delayed; or
(d) Any Transfer, or any other event which, were it not for the provisions
of this Agreement, would cause any such Shares or any interest therein to be
transferred, in violation of Section 4 of this Agreement.
7.02 OFFER NOTICE
Within 30 days after the occurrence of a Repurchase Event, the Stockholder
or the Stockholder's trustee in bankruptcy, personal representative, guardian,
executor, or administrator, as appropriate (for purposes of this Section 7, the
"Transferor") shall give notice (for purposes of this Section 7, the "Offer
Notice") to FFW of such Repurchase Event, specifying the date of the Repurchase
Event and describing in reasonable detail the nature of the Repurchase Event and
the number of Shares affected (the "Offered Shares"). The Offer Notice shall
state that the price per share is the lower of the Original Issue Price or the
Current Price. If FFW has not received this notice upon the expiration of the
30-day period, any Stockholder, director, or officer of the Company who has
knowledge of the Repurchase Event may give such notice (with a copy of the same
to the Transferor) at any time after the end of such period, and such notice
shall be deemed to be the Offer Notice.
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7.03 PURCHASE OF SHARES
Upon the occurrence of any Repurchase Event, the Company shall have the
right to purchase the Offered Shares for the price and on the terms described in
this Section 7. Each purchase of Shares pursuant to this Section 7 shall be made
in accordance with the following terms and conditions:
(a) Within 15 business days after receipt of the Offer Notice (the "Offer
Period"), the Company shall have the right to purchase all or part of the
Offered Shares shall deliver to the Secretary notice of its acceptance of the
offer (the "Acceptance Notice") specifying the number of Offered Shares that the
Company agrees to purchase. Delivery of an Acceptance Notice to the Secretary
shall create a binding contract between the Company and the Transferor for the
purchase and sale of the Offered Shares.
(b) If the Company does not exercise their right to purchase all of the
Offered Shares as provided above, the XxXxx Entities shall have the right to
purchase any remaining Offered Shares (the "Remaining Offered Shares") by giving
an Acceptance Notice to the Secretary during the Offer Period stating the number
of Remaining Offered Shares that each such XxXxx Entity agrees to purchase.
Delivery of an Acceptance Notice to the Secretary shall create a binding
contract between each such XxXxx Entity and the Transferor for the purchase and
sale of the Offered Shares. Notwithstanding the foregoing, the XxXxx Entities
may not exercise the purchase right granted under this Section 7.03(b) unless a
majority of the Disinterested Directors have approved the Company's
determination not to exercise its right to purchase all of the Offered Shares.
7.04 PAYMENT FOR THE SHARES
Each purchaser of Offered Shares shall pay the price for its respective
Offered Shares by making a payment of 25% thereof at closing and by paying the
balance in three equal annual installments, together with interest on the unpaid
balance from at a per annum rate equal to the prime rate last reported by Bank
of America National Association prior to closing, plus 1%. The first installment
of principal and interest shall be paid on the 15th day of the month following
closing. Interest shall accrue on the unpaid balance commencing on the closing
date. The unpaid balance may be prepaid in whole or in part at any time without
penalty, and may be accelerated in the event of failure to pay any installment
when due, in which case reasonable attorney's fees and costs may also be
recovered if any legal action for collection is commenced. The other terms and
conditions and procedures for transferring Offered Shares shall be determined in
accordance with Section 5.01(d).
8. BOARD PARTICIPATION RIGHTS
8.01 SIZE OF THE BOARD OF DIRECTORS
The authorized number of directors on the Company's Board of Directors
shall be not less than five and not more than eleven; provided, however, that
such number may be increased or decreased by vote of the Board.
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8.02 SELECTION OF DIRECTORS
(a) In any election of directors of the Company, each Stockholder shall
vote such number of shares of Stock as may be necessary to elect as a director
one individual nominated by the HITN (the "HITN Director"), but only if the HITN
owns, in the aggregate, Stock representing at least 5% of the Voting Shares of
the Company, it being understood that the initial HITN Director shall be Xxxx
Xxxx Xxxxxxxxx.
(b) In any election of directors of the Company, each Stockholder shall
vote such number of shares of Stock as may be necessary to elect as a director
one individual nominated by the Clearwire Stockholders (the "Clearwire
Director"), but only if the Clearwire Stockholders own, in the aggregate, Stock
representing at least 10% of the Voting Shares of the Company, it being
understood that the initial Clearwire Director shall be a person to be
determined by Clearwire in the future.
(c) Any director of the Company may be removed from the Board of the
Directors in the manner allowed by law and the Company's Bylaws, but with
respect to a director designated pursuant to this Section 8.02, only upon the
vote or written consent of the Stockholders entitled to designate such director.
Any vacancies on the Board of Directors shall be filled in accordance with this
Section 8.02.
8.03 IMPLEMENTATION
(a) Each Stockholder will vote its Shares (at any meeting of stockholders
or in any consent in lieu of a meeting), and shall take all other actions
necessary, to give effect to the provisions of this Section 8 and to cause the
Governing Documents not to conflict with the provisions of this Agreement.
(b) If any Stockholder fails to vote the Stockholder's Shares in accordance
with the voting agreement contained in this Section 8, any votes contrary to the
terms of this Section 8 shall be null and void. Each Stockholder hereby makes
and constitutes the Secretary of the Company as his true and lawful agent and
attorney-in-fact, with full power of substitution, in his name, place, and xxxxx
to vote as his proxy, each Share owned by such Stockholder for such nominees as
the other Stockholders select consistent with the terms of the voting agreement
contained in this Section 8. The foregoing power of attorney is coupled with an
interest and shall be irrevocable, shall survive the death or incapacity of each
Stockholder, and shall be binding on his estate, heirs, beneficiaries,
successors, and assigns.
(c) In addition to any other rights and remedies, each Stockholder (or its
personal representative, assignee, or successor) is entitled to enforce the
terms of this Section 8 by suit to enjoin a Stockholder from voting its Shares
in contravention of the terms of this Section 8.
8.04 OBSERVER RIGHTS
(a) If HITN owns Stock representing less than 5% of the Voting Shares of
the Company and no longer has a right to nominate the HITN Director pursuant to
Section 8.02(a) above, the Company shall permit one representative of HITN to
attend the meetings of the Company's Board of Directors in a non-voting observer
capacity, and such observer shall receive
14
such package of documents as are provided to all of the directors, including,
but not limited to the financial information described in Section 9.01 hereof.
(b) If the Clearwire Stockholders own, in the aggregate, Stock representing
less than 10% of the Voting Shares of the Company and no longer have a right to
nominate the Clearwire Director pursuant to Section 8.02(b) above, the Company
shall permit one representative of the Clearwire Stockholders to attend the
meetings of the Company's Board of Directors in a non-voting observer capacity,
and such observer shall receive such package of documents as are provided to all
of the directors, including, but not limited to the financial information
described in Section 9.01 hereof.
(c) If the Globespan Entities do not have a representative on the Company's
Board of Directors, and as long as the Globespan Entities hold, in the
aggregate, at least 66 2/3% of the aggregate Shares (i) acquired by them
pursuant to the NextNet Merger (excluding any transfers pursuant to Section 6.02
hereof) and (ii) resulting from the exercise by them of warrants issued to them
in connection with the NextNet Merger (in each case, as adjusted for stock
dividends, stock splits, reverse stock splits or other distributions of shares
made upon or in exchange for the Shares), the Company shall permit one
representative of the Globespan Entities to attend the meetings of the Company's
Board of Directors in a non-voting observer capacity, and such observer shall
receive such package of documents as are provided to all of the directors,
including, but not limited to the financial information described in Section
9.01 hereof. The initial representative of the Globespan Entities shall be Xxxxx
Xxxxxxxxx. Any successor representative shall be approved by FFW, which approval
shall not be unreasonably withheld.
(d) Each of HITN, the Clearwire Stockholders and the Globespan Entities
agree, that with respect to their respective rights in this Section 8.04, if, in
the Board of Directors' good faith judgment, such Stockholder has a competitive
conflict of interest with respect to the issue to be discussed, such exclusion
is reasonably necessary to protect highly confidential proprietary information
of the Company, the presence of Stockholder's representative would jeopardize
the Company's attorney-client privilege or for other similar reasons, (i) its
representative may be excluded from certain confidential "closed sessions" of
the Board of Directors or any portions of a Board of Directors' meeting, and/or
(ii) the Company shall not be obligated to provide the representatives with
documents related to such matters. For purposes of this subparagraph (d), the
fact that a Stockholder is a reseller of the Company's services or a lessor of
spectrum to the Company shall not deem, by itself, such Stockholder to have a
competitive interest. Each representative shall agree to hold in confidence and
trust and to act in a fiduciary manner with respect to all information provided
or acquired by such representative pursuant to this Section 8.04.
9. INFORMATION RIGHTS; ADDITIONAL COVENANTS
9.01 DELIVERY OF FINANCIAL STATEMENTS
At any time that the Company is not subject to the reporting requirements
of the 1934 Act, the Company shall deliver to each Stockholder (other than the
NextNet Stockholders) and each Eligible NextNet Stockholder that owns at least
0.25% of the Voting Shares of the Company:
15
(a) as soon as practicable, but in any event within 120 days after the end
of the fiscal year of the Company, subject to delivery to the Company by its
accountants, a consolidated balance sheet and statement of stockholders' equity
as of the end of such year and a consolidated statement of operations and
statement of cash flows for such year, such year-end financial statements to be
in reasonable detail, prepared in accordance with generally accepted accounting
principles, and audited and certified by independent public accountants selected
by the Company; and
(b) as soon as practicable, but in any event within 90 days after the end
of each of the first three quarters of each fiscal year of the Company, a
consolidated balance sheet and statement of stockholders' equity as of the end
of such fiscal quarter and a consolidated statement of operations and statement
of cash flows for such fiscal quarter, in reasonable detail.
9.02 INSPECTION
Until the Company is subject to the reporting requirements of the 1934 Act,
the Company shall permit each Stockholder (other than the NextNet Stockholders)
and each Eligible NextNet Stockholder that owns at least 0.25% of the Voting
Shares of the Company, at such Stockholder's expense, to visit and inspect the
properties of the Company, to examine its books of account and records and to
discuss its affairs, finances and accounts with its officers, all at such
reasonable times as may be requested by the Stockholder, provided, however, that
(i) the Company shall not be obligated pursuant to this Section 9.02 to provide
access to any information it reasonably considers to be a trade secret or
similar confidential information; (ii) prior to any disclosure under this
Section 9.02, the Company may require that the Stockholder agree in writing to
such confidentiality provisions as any of such entities may reasonably request
and (iii) disclosure of or access to information pursuant to this Section 9.02
shall not violate any applicable law. Nothing in this Section 9.02 shall limit
the statutory rights of a director or stockholder to inspection of the entity's
properties, books, and records.
9.03 FFW COVENANTS
(a) Until the termination of this Agreement pursuant to Section 11 hereof,
FFW hereby covenants and agrees, for itself and the XxXxx Entities, that the
Company and its subsidiaries shall be FFW's and the XxXxx Entities' sole entity
through which Xxxxx X. XxXxx or any XxXxx Entity acquires the right to own or
lease MDS, MMDS or ITFS spectrum in the United States for the purpose of
providing wireless point-to-multipoint fixed communications services; provided,
however, that for purposes of this Section 9.03(a), "XxXxx Entities" shall only
refer to Xxxxx X. XxXxx and those entities in which Xxxxx X. XxXxx owns,
directly or indirectly, securities constituting 51% or more of the voting power
of such entity.
(b) Until the termination of this Agreement pursuant to Section 11 hereof,
FFW hereby covenants and agrees, for itself and the XxXxx Entities, neither FFW
nor any XxXxx Entity shall vote to amend or modify the definition of
"Disinterested Director Approval" in the Certificate without (i) HITN's consent
so long as HITN is a Stockholder of the Company; and (ii) the approval of
Eligible NextNet Stockholders holding a majority of the aggregate Shares (as
adjusted for stock dividends, stock splits, reverse stock splits, or other
distributions of shares made upon or in exchange for the Shares) acquired by
them pursuant to the NextNet Merger,
16
provided that the Eligible NextNet Stockholders continue to hold at the time of
such approval at least 66 2/3% of such Shares.
10. LEGEND ON STOCK CERTIFICATES
Each certificate representing Shares shall be endorsed with substantially
the following legend:
THIS CERTIFICATE AND THE SHARES REPRESENTED HEREBY MAY NOT BE SOLD,
ASSIGNED, TRANSFERRED, ENCUMBERED, OR IN ANY MANNER DISPOSED OF EXCEPT IN
CONFORMITY WITH THE TERMS OF A WRITTEN STOCKHOLDERS AGREEMENT AMONG
CLEARWIRE CORPORATION AND THE REGISTERED HOLDER OF THE SHARES (OR THE
PREDECESSOR IN INTEREST TO THE SHARES). SUCH AGREEMENT CONTAINS CERTAIN
RIGHTS AND OBLIGATIONS REGARDING CORPORATE GOVERNANCE AND REGARDING THE
VOTING, SALE, ASSIGNMENT, TRANSFER, ENCUMBRANCE OR OTHER DISPOSITION OF
SUCH CORPORATIONS' SHARES. THE CORPORATION WILL UPON WRITTEN REQUEST
FURNISH A COPY OF SUCH AGREEMENT TO THE HOLDER HEREOF WITHOUT CHARGE.
The legend provided by this Section 10 may be removed upon termination of
this Agreement in accordance with the provisions of Section 11. Notwithstanding
any termination of this Agreement, each Stockholder acknowledges that Shares may
not be transferred absent compliance with applicable federal, state, and foreign
securities laws.
11. TERMINATION OF AGREEMENT
The restrictions, rights, and obligations in Sections 1 through 10 hereof
shall terminate upon the earlier of (a) the closing of an IPO or a transaction
in which all of the shares of the Company's Class A Common Stock are exchanged
for unrestricted securities that are listed on a recognized securities exchange
or NASDAQ National Market, (b) a Change of Control of the Company and (c) the
winding up of the Company's business. This Agreement may be terminated in its
entirety upon the written consent of all Stockholders, unless sooner terminated
in accordance with the preceding sentence.
12. DEFINITIONS AND INTERPRETATION
12.01 DEFINITIONS
Whenever used in the Agreement and the Exhibits and Schedules hereto, the
following terms shall have the respective meanings set forth in this Section
12.01. Capitalized terms used but not defined herein have the meanings given in
the Certificate.
'1934 Act" means the Securities and Exchange Act of 1934, as amended.
"Act" means the Securities Act of 1933, as amended.
17
"Affiliate" means a Person that directly, or indirectly through one or more
intermediaries, controls, is controlled by, or is under common control with the
Person specified. For purposes of this definition, an entity shall be deemed to
be controlled by a stockholder if (and only for so long as) (i) such stockholder
has the right to vote by ownership, proxy or otherwise securities constituting
5% or more of the voting power of such entity if such entity has equity
securities registered and files reports under the 1934 Act or otherwise (if not
reporting) securities constituting 10% or more of the voting power or economic
interests of such entity; (ii) such stockholder possesses, directly or
indirectly, the power to direct or cause the direction of the management and
policies of such entity, whether through the ownership of voting securities,
membership on the board or other governing entity, by contract or otherwise; or
(iii) with respect to a charitable trust, foundation or nonprofit corporation,
such stockholder is the sole trustee or director or has the power to appoint 20%
of the trustees or directors thereof, or otherwise has a strong and continuing
relationship as founder or substantial donor.
"Associate" means (i) any corporation or organization of which such Person
is an officer or partner or is, directly or indirectly, the beneficial owner of
10% or more of any class of equity securities, (ii) any trust or other estate in
which such Person has a substantial beneficial interest or as to which such
Person serves as trustee or in a similar fiduciary capacity and (iii) any
relative or spouse of such Person or any relative of such spouse, who has the
same home as such Person.
"Certificate" means the certificate of incorporation of the Company, as
amended from time to time.
"Change of Control" with respect to any entity means (i) a transfer of all
or substantially the assets of that entity or (ii) the transfer by the
stockholders, partners or members that own the entity, by means of a merger,
consolidation, reorganization, recapitalization or otherwise, of more than 50%
of the voting power of or economic interests in that entity.
"Clearwire" means Clearwire Holdings, Inc., a Delaware corporation.
"Clearwire Stockholders" means Clearwire, its Permitted Transferees
(including but not limited to any Qualified Clearwire Stockholders and Qualified
Transferees of Clearwire), and its Designee.
"Current Price" means (a) the price per Share applicable in the most recent
or contemporaneous third-party transaction in which the Company issued Shares
for cash consideration, or (b) if such third-party transaction was consummated
more than 120 days prior to the date of determination, then the price per Share
shall be the fair market value established in good faith by a majority of the
Disinterested Directors, provided, however, if a XxXxx Entity disagrees or
disputes with the determination of "Current Price" pursuant to clause (b) above,
then the XxXxx Entity may retain an independent firm reasonably acceptable to a
majority of the Disinterested Directors that has substantial experience in
valuing communications industry businesses and that has not provided any
financial advisory services to any XxXxx Entity within the last 24 months to
determine the Current Price which determination shall be binding on the Company
and the XxXxx Entity.
18
"DGCL" means the General Corporation Law of the State of Delaware, as
amended.
"Designee" means one Person that meets all of the following criteria: (a)
the Person is an "accredited investor" as defined under Regulation D of the Act,
(b) the Person is not a competitor of the Company, as reasonably determined by
the Board of Directors of the Company, (c) prior to the issuance of any Stock,
the Person executes and delivers a Joinder in the form of attached as Exhibit A,
in favor of the Company and each Stockholder, stating that by acquiring such
Stock, the Designee has agreed to all terms and conditions of this Agreement,
(d) the Board of Directors of the Company has not reasonably and in good faith
concluded that providing such Person any information to which a Stockholder is
entitled is likely to threaten the proprietary nature of such information or the
Company's business objectives or competitive positioning, and (e) with respect
to the Designee of Clearwire only, immediately after giving effect to the
purchase of shares by the Designee the total number of Clearwire Stockholders
(including Clearwire and the Designee) will not exceed thirty-three (33). For
purposes of this definition, the fact that a Stockholder is a reseller of the
Company's services or a lessor of spectrum to the Company shall not deem, by
itself, the provision of information to such Stockholder a likely threat to the
competitive positioning of the Company.
"Disinterested Directors" has the meaning as set forth in the Certificate.
"Eligible NextNet Stockholder" means each NextNet Stockholder and each
Stockholder who acquires Shares from a NextNet Stockholder pursuant to Section
4.03 hereof who is (a) an "accredited investor" as defined under Regulation D of
the Act, (b) holds, at the time of determination, at least 66 2/3% of the
aggregate Shares (as adjusted for stock dividends, stock splits, reverse stock
splits, or other distributions of shares made upon or in exchange for the
Shares) such NextNet Stockholder acquired pursuant to the NextNet Merger
(excluding any transfers pursuant to Section 6.02 hereof) and (c) holds, at the
time of determination, at least 66 2/3% of the Shares resulting from the
exercise of warrants issued to such NextNet Stockholder in connection with the
NextNet Merger.
"Eligible Stockholder" means each Stockholder holding at least 1% of the
outstanding capital stock of the Company, on a fully diluted basis.
"FFW" has the meaning in Recital A and includes any of its successors or
assigns.
"Globespan" means Globespan Capital Management.
"Globespan Entities" means the following NextNet Stockholders who are
controlled or managed by or Affiliated with Globespan: JAFCO America Technology
Fund III, LP, JAFCO America Technology Cayman Fund III, LP, JAFCO USIT Fund III,
LP, and JAFCO America Technology Affiliates Fund III, LP.
"Governing Documents" means the certificate of incorporation and by-laws of
this Company.
"HITN" means Hispanic Information and Telecommunications Network, Inc.
"ISA" means ITFS Spectrum Advisors, LLC.
19
"IPO" means the consummation of an underwritten public offering registered
under the Act, or an equivalent law under the laws of any other nation or
commonwealth, of at least $35 million in equity securities of the Company.
"XxXxx Entity" means FFW, Xxxxx X. XxXxx, or any of their respective
Affiliates.
"NextNet Merger" means that certain merger of NextNet with and into a
subsidiary of the Company effective as of March, __, 2004.
"NextNet Stockholder" means a Stockholder who acquired Shares pursuant to
the NextNet Merger or pursuant to the exercise of warrants issued in connection
with the NextNet Merger.
"Original Issue Price" means $1.00 per share of common stock (of any
class), subject to adjustment for any stock dividend, stock split, reverse stock
split, or other distribution of shares.
"Percentage" of a Stockholder means the fraction in which the numerator
equals the total number of Shares held beneficially by such Stockholder and the
denominator equals the total number of issued and outstanding Shares, all
determined on a fully diluted basis (but excluding any shares and options,
warrants or other rights to acquire shares that are reserved but unallocated
pursuant to any stock plan).
"Permitted Transferee" means a Person who becomes a Stockholder as a result
of a Permitted Transfer in accordance with Section 4.03 hereof.
"Person" means any individual, corporation, partnership, company, trust or
other entity.
"Qualified Clearwire Stockholder" means a Person that meets all of the
following requirements: (a) the Person is a stockholder of Clearwire, (b) the
Person is an "accredited investor" as defined under Regulation D of the Act, (c)
the Person is not a competitor of the Company, as reasonably determined by FFW,
(d) FFW has not reasonably and in good faith concluded that providing such
Person any information to which a Stockholder is entitled is likely to threaten
the proprietary nature of such information or the Company's business objectives
or competitive positioning, and (e) immediately after giving effect to the
Transfer of shares to such Person the total number of Clearwire Stockholders
will not exceed thirty-three (33). Notwithstanding the foregoing, in the event
that a stockholder of Clearwire fails to qualify as a Qualified Clearwire
Stockholder as a result of subsection (c) or (d) above, then a Qualified
Clearwire Stockholder may include a Person substituted for such disqualified
stockholder of Clearwire who would qualify as a Qualified Clearwire Stockholder
if not for the requirement set forth in (a) above.
"Exchange Act" means the Securities Exchange Act of 1934, as amended, or
any successor law.
"Qualified Transferee" means a Person that meets all of the following
requirements: (a) the Person is an "accredited investor" as defined under
Regulation D of the Act, (b) the Person is not a competitor of the Company, as
reasonably determined by the Board of Directors of the Company, (c) the Board of
Directors of the Company has not reasonably and in good faith
20
concluded that providing such Person any information to which a Stockholder is
entitled is likely to threaten the proprietary nature of such information or the
Company's business objectives or competitive positioning, and (d) with respect
to any Person who is a proposed transferee of Clearwire only, immediately after
giving effect to the Transfer of shares to such Person (i) the total number of
Qualified Transferees to which Clearwire has transferred Shares under Section
4.03(d) of this Agreement will not exceed ten (10) and (ii) the total number of
Clearwire Stockholders will not exceed thirty-three (33). For purposes of this
definition, the fact that a Stockholder is a reseller of the Company's services
or a lessor of spectrum to the Company shall not deem, by itself, the provision
of information to such Stockholder a likely threat to the competitive
positioning of the Company.
"Termination Event" shall mean the earlier of the date on which (i) the
Company consummates an underwritten public offering registered under the Act, or
an equivalent law under the laws of any other nation or commonwealth, or (ii)
the Company is required to register under Section 12 of the Exchange Act, or a
substantially similar law under the laws of any other nation or commonwealth.
"Voting Shares" means all of the issued and outstanding Shares of any class
or series entitled to vote, calculated on an as-converted to Class A Common
Stock basis; provided, that the calculation of the number of Voting Shares for
purposes of this Agreement shall be without regard to the number of votes to
which each Share is entitled.
12.02 INTERPRETATION
The word "including" or any variation thereof means "including, without
limitation" and shall not be construed to limit any general statement that it
follows to the specific or similar items or matters immediately following it
When calculating the period of time before which, within which or following
which any act is to be done or step taken pursuant to this Agreement, the date
that is the reference date in calculating such period shall be excluded. If the
last day of such period is a non-business day, the period in question shall end
on the next succeeding business day.
Any reference in this Agreement to $ shall mean U.S. dollars.
Any reference in this Agreement to gender shall include all genders, and
words imparting the singular number only shall include the plural and vice
versa.
The provision of a Table of Contents, the division of this Agreement into
Sections and other subdivisions and the insertion of headings are for
convenience of reference only and shall not affect or be utilized in construing
or interpreting this Agreement. All references in this Agreement to any
"Section" are to the corresponding Section of this Agreement unless otherwise
specified.
The words such as "herein," "hereinafter," "hereof," and "hereunder" refer
to this Agreement as a whole and not merely to a subdivision in which such words
appear unless the context otherwise requires
21
The parties hereto have participated jointly in the negotiation and
drafting of this Agreement and, in the event an ambiguity or question of intent
or interpretation arises, this Agreement shall be construed as jointly drafted
by the parties hereto and no presumption or burden of proof shall arise favoring
or disfavoring any party by virtue of the authorship of any provision of this
Agreement.
13. GENERAL PROVISIONS
13.01 APPLICATION OF THIS AGREEMENT
This Agreement shall apply to (a) any share of capital stock in the Company
after issuance to any Stockholder for any reason, whether upon exercise of any
warrant or option or otherwise, and (b) any share of capital stock in the
Company received by any party as a result of any stock dividend, stock split,
reverse stock split, or other distribution of shares made upon or in exchange
for the Shares.
13.02 EFFECT OF NON-COMPLYING TRANSFERS
If any transfer in violation of this Agreement shall be attempted, or if
any involuntary or other purported transfer by law of any shares occurs or is
attempted, it shall be void, and upon presentation for transfer the Company
shall not give effect to such purported transfer.
13.03 ESCROW
At the request of any Stockholder participating in a Transfer governed by
this Agreement, an escrow shall be set up to effect the transfer of any
certificates or funds. Costs of such escrow shall be borne by such Stockholder.
13.04 SUCCESSORS AND ASSIGNS; THIRD PARTY BENEFICIARIES
Except as otherwise provided herein, each party agrees that it will not
assign, sell, transfer, delegate, or otherwise dispose of any right or
obligation under this Agreement, whether voluntarily, involuntarily, by
operation of law, or otherwise, except in accordance with the terms hereof. Any
purported assignment, transfer, or delegation in violation of this section shall
be null and void. Except as otherwise provided in this Agreement, the terms and
conditions of this Agreement shall inure to the benefit of and be binding on the
respective successors and assigns of the parties (including Permitted
Transferees). Nothing in this Agreement, express or implied, is intended to
confer on any party other than the parties to this Agreement or their respective
successors and assigns any rights, remedies, obligations or liabilities under or
by reason of this Agreement, except as expressly provided in this Agreement.
13.05 GOVERNING LAW
This Agreement shall in all respects, including all matters of
construction, validity, and performance, be governed by, and construed and
enforced in accordance with, the laws of the state of Delaware, without
reference to any rules governing conflicts of laws. However, in light of the
XxXxx Entities' presence in the State of Washington, and in light of the
location of the Company's headquarters in the State of Washington, any dispute
arising out of this Agreement
22
shall be resolved in a court of appropriate jurisdiction located in King County,
Washington. Each party specifically and expressly consents to the personal
jurisdiction of the state and federal courts located in King County, Washington.
13.06 COUNTERPARTS
This Agreement may be executed in two or more counterparts, each of which
shall be deemed an original, but all of which together shall constitute one and
the same instrument.
13.07 NOTICES
All notices, demands, requests or other communications that may be or are
required to be given, served, transmitted or delivered by any party to any other
party pursuant to this Agreement shall be in writing and shall be hand
delivered, or transmitted by verified facsimile or internationally recognized
air courier, addressed to the party to be notified at the address indicated for
such party on the signature page hereof, or at such other address as such party
may designate by 10 days' advance written notice to the other party given in the
foregoing manner. Each notice, demand, request or other communication that shall
be hand delivered, telecopied or delivered in the manner described above shall
be deemed sufficiently given, served, transmitted or delivered for all purposes
at such time as it is delivered to the addressee (with the delivery receipt or,
with respect to a telecopy, the answer back being deemed conclusive, but not
exclusive, evidence of such delivery) or at such time as delivery is refused by
the addressee upon presentation.
13.08 EXPENSES
If any action at law or in equity is necessary to enforce or interpret the
terms of this Agreement, the prevailing party shall be entitled to reasonable
attorneys' fees, costs, and necessary disbursements in addition to any other
relief to which such party may be entitled.
13.09 AMENDMENTS AND WAIVERS
Any term of this Agreement may be amended and the observance of any term
may be waived (either generally or in a particular instance and either
retroactively or prospectively) only with the written consent of Stockholders
who own securities representing a majority of the voting power of the Company's
then outstanding securities; provided that no Stockholder shall be subject to
additional obligations or diminished rights that adversely affect such
Stockholder or be treated in a manner different than other Stockholders unless
such Stockholder approved the amendment or waiver. Notwithstanding the
foregoing, Schedule A to this Agreement may be amended from time to time by (x)
the Company to reflect the actual holdings of the Stockholders of shares of
Stock without formally amending this Agreement or (y) a Joinder executed by a
new stockholder and the Company and delivered to all other Stockholders. Each
Stockholder agrees to execute any amendment or waiver effected in accordance
with this Section. Any amendment or waiver effected in accordance with this
Section shall be binding on each Stockholder then a party to this Agreement,
each future Stockholder and the Company.
The failure of any party to insist on or to enforce strict performance by
the other parties of any of the provisions of this Agreement or to exercise any
right or remedy under this
23
Agreement shall not be construed as a waiver or relinquishment to any extent of
that party's right to assert or rely on any provisions, rights or remedies in
that or any other instance; rather, the provisions, rights and remedies shall
remain in full force and effect. The exercise or non-exercise of the rights of a
Stockholder under this Agreement to participate in one or more Transfers of
Stock made by a Selling Stockholder or a XxXxx Entity shall not adversely affect
such Stockholder's rights to participate in subsequent Transfers by a Selling
Stockholder or a Selling XxXxx Entity.
13.10 SEVERABILITY
If one or more provisions of this Agreement are held to be unenforceable
under applicable law, such provision shall be excluded from this Agreement and
the balance of the Agreement shall be interpreted as if such provision were so
excluded and shall be enforceable in accordance with its terms.
13.11 NO PARTNERSHIP OR JOINT VENTURE
Neither execution nor performance of this Agreement shall be construed or
deemed to have established any joint venture or partnership or to have created
the relationship of agent and principal among the Company or its Affiliates and
the Stockholders or among any of the Stockholders. Except as otherwise set forth
in this Agreement or agreed in writing, at no time shall the Company or its
Affiliates make any commitments or incur any charges or expenses in the name of
any Stockholders, and vice versa, nor shall any Stockholders make any
commitments or incur any charges or expenses for, or in the name of, any other
Stockholders.
13.12 FURTHER ASSURANCES
Each party agrees from time to time to do and perform such other and future
acts (including the taking of board and stockholder action) and execute and
deliver any and all such other instruments as may be required by law or
reasonably requested by the other parties to establish, maintain or protect the
rights and remedies of the requesting party or to carry out and effect the
intent and purpose of this Agreement.
13.13 DAMAGES AND INJUNCTIVE RELIEF
No party shall be liable for any unforeseeable, special, consequential, or
indirect damages arising from any breach or nonobservance of any term or
condition of this Agreement. It is acknowledged that it will be impossible to
measure in money the damages that would be suffered if the parties fail to
comply with any of the obligations herein imposed on them and that in the event
of any such failure, an aggrieved person will be irreparably damaged and will
not have an adequate remedy at law. Any such person shall, therefore, be
entitled to injunctive relief, including specific performance, to enforce such
obligations, and if any action shall be brought in equity to enforce any of the
provisions of this Agreement, none of the parties hereto shall raise the defense
that there is an adequate remedy at law and in any case no bond or other
security shall be required.
24
13.14 Entire Agreement
This Agreement (including the schedules and exhibits hereto, which are
incorporated herein by this reference) supersedes all prior or contemporaneous
agreements, and all related understandings, written or oral, among the parties
with regard to the subject matter of this Agreement (but not other contracts to
which the Company may be subject) and constitutes the full and entire
understanding and agreement between the parties with regard to the subject
matter of this Agreement. The parties further intend that this Agreement shall
constitute the complete and exclusive statement of its terms and that no
extrinsic evidence whatsoever may be introduced in any judicial, administrative,
arbitration, or other legal proceeding involving this Agreement.
13.15 Confidentiality
Each Stockholder hereby covenants and agrees that, during the effectiveness
of this Agreement, neither it, nor any of its employees, agent, officers or
directors, will at any time make use of, divulge or disclose to any third party
(other than good faith advisors or consultants to a party who agree to respect
the confidentiality of this Agreement or as required by law) without the prior
written consent of the Company except as permitted by this Section 13.15, any
confidential or proprietary information of the Company, including the business,
financial condition or operations of the Company, the terms of the NextNet
Merger and any information disclosed to the Stockholders in connection with the
NextNet Merger, the terms of this Agreement and any information disclosed to
Stockholders pursuant to this Agreement (the "Company Confidential
Information").
Notwithstanding the foregoing, the Company shall be entitled to disclose
the terms of this Agreement and such confidential proprietary information of the
Company to (a) other good-faith potential investors, lenders, business partners
and service providers and (b) in connection with any registration of Stock under
the Act. Each Stockholder shall be entitled to disclose Company Confidential
Information (i) to good-faith potential Transferees whose purchases do not or
will not violate the terms of this Agreement and to good-faith potential lenders
to such Stockholder or (ii) or as otherwise required under applicable law in the
good faith judgment of such Stockholder. Any disclosures (other than pursuant to
clause (b) of the second sentence of this Section 13.15) shall only be made to
Persons who have agreed in writing to keep the terms of this Agreement
confidential.
Notwithstanding anything herein to the contrary, any party to this
Agreement may disclose to any and all persons, without limitation of any kind,
the tax treatment and tax structure of the transactions contemplated by this
Agreement and the NextNet Merger and all materials of any kind (including
opinions or other tax analyses) that are provided to it relating to such tax
treatment and tax structure, except that this provision shall not permit
disclosure to the extent that nondisclosure is necessary in order to comply with
applicable securities law.
All of the foregoing obligations and restrictions of this Section 13.15 do
not apply to that part of the Company Confidential Information that: (i) such
Stockholder can demonstrate was in such Stockholder's possession prior to the
disclosure; (ii) was rightfully acquired by such Stockholder from a third party
not bound by the terms of this Agreement or not otherwise prohibited from
transmitting the Company Confidential Information to such Stockholder by a
25
contractual, legal, fiduciary or other obligation; (iii) is in or part of the
public domain or generally known to the public through no act or fault of such
Stockholder; or (iv) for which any such obligation as to confidentiality is
waived in writing by the Company.
13.16 COUNTERPARTS
This Agreement may be executed simultaneously in any number of
counterparts, each of which shall be deemed an original, but all such
counterparts shall together constitute one and the same instrument.
13.17 AMENDMENT AND RESTATEMENT
Effective as of the date of this Agreement, the Original Agreement shall be
amended and restated in its entirety by this Agreement.
[REMINDER OF PAGE IS INTENTIONALLY BLANK; SIGNATURE LINES ARE ON THE NEXT
PAGE.]
26
IN WITNESS WHEREOF, the parties have duly executed this Agreement as of the
date first written above.
COMPANY: CLEARWIRE CORPORATION
By:
------------------------------------
R. Xxxxxx Xxxxxxx, its President
Address: Clearwire Corporation
0000 Xxxxxxxx Xxxxx
Xxxxxxxx, Xxxxxxxxxx 00000
Attention:
Facsimile:(000) 000-0000
With a copy (which shall not constitute notice) to:
Address: Xxxxx Xxxxxx Xxxxxxxx LLP
0000 Xxxxxxx Xxxxxx
0000 Xxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxxxx X. Xxxxx
Facsimile: (000) 000-0000
STOCKHOLDERS: [STOCKHOLDER SIGNATURES]
By:
------------------------------------
Its:
-----------------------------------
Address:
----------------------------------------
SCHEDULE A
To the Stockholders Agreement of
Clearwire Corporation
LIST OF STOCKHOLDERS
CLASS A CLASS B
COMMON COMMON
NAME STOCK STOCK WARRANTS OPTIONS
-------------- ------- ------- -------- -------
[STOCKHOLDERS]
EXHIBIT A
To the Amended and Restated Stockholders Agreement of
Clearwire Corporation
JOINDER
In consideration of the permitted issuance, sale, pledge, or other transfer
to the undersigned of Stock in the Company, the undersigned hereby consents and
agrees to become a party to and be bound by the Amended and Restated
Stockholders Agreement dated as of the ____________ day of March, 2004, as
amended, receipt of a copy of which is hereby acknowledged, as fully as if the
undersigned were one of its original parties, and all Stock owned by the
undersigned shall be held in accordance with and restricted by the terms of such
Amended and Restated Stockholders Agreement.
Dated:
-------------------------
Name of Stockholder:
----------------------------------------
Sign Name:
----------------------------------------
Print Name:
----------------------------------------
Address:
----------------------------------------
----------------------------------------
----------------------------------------
SSN/EIN:
----------------------------------------
Approved by the Company:
COMPANY: CLEARWIRE CORPORATION
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Dated:
---------------------------------
EXHIBIT D
TERMINATION OF RESTRICTIVE COVENANT AGREEMENT
This TERMINATION OF RESTRICTIVE COVENANT AGREEMENT (this "Agreement"),
dated as of __________________, 2006, is made by and between Clearwire Belgium
SPRL, a 'societe privee a responsabilite limitee' organized under the laws of
Belgium ("Clearwire Belgium"), MAC Telecom SA, a 'societe anonyme' organized
under the laws of Belgium ("MAC Telecom"), MAC Telecom Holdings SA, a 'societe
anonyme' organized under the laws of Belgium ("MTH") and [Xxxxxxx xx Xxxxxx]
("[Xxxxxxx]"). Clearwire Belgium, MAC Telecom, MTH and [Xxxxxxx] may each be
referred to herein as a "Party" and together as the "Parties."
WHEREAS, Clearwire Belgium, MAC Telecom, MTH and [Xxxxxxx] are parties to
that certain Restrictive Covenant Agreement, dated as of December 7, 2004 (the
"Restrictive Covenant Agreement") pursuant to which [Xxxxxxx] agreed, among
other things, to certain restrictions on competition;
WHEREAS, among others, Clearwire Europe S.a x.x., a Luxembourg limited
liability company ("Clearwire Europe") and [Xxxxxxx] have entered into the MTH
Stock Purchase Agreement dated __________________, 2006 (the "Stock Purchase
Agreement"), pursuant to which [Xxxxxxx] has agreed, among other things, to sell
all of his right title and interest in and to his shares of MTH to Clearwire
Europe;
WHEREAS, pursuant to the Stock Purchase Agreement, [Xxxxxxx] has also
agreed to enter into a certain professional services agreement referred to in
Section 7.3[(g)] of the Stock Purchase Agreement;
WHEREAS, pursuant to Section 7.3(e) of the Stock Purchase Agreement,
[Xxxxxxx] has agreed to enter into this Agreement; and
WHEREAS, entry into this Agreement is a material inducement to Clearwire
Europe to enter into the Stock Purchase Agreement.
NOW, THEREFORE, in consideration of the promises and the mutual covenants,
conditions, and agreements hereinafter set forth, the Parties agree as follows:
1. Consent to Termination of the Restrictive Covenant Agreement. Effective as
of the closing of the Stock Purchase Agreement (the "Closing"), and subject
thereto, the Parties hereby consent to the termination of the Restrictive
Covenant Agreement. From and after the Closing the Restrictive Covenant
Agreement shall be null and void and have no further force or effect except
in relation to confidentiality (Article 2), and, as of the Closing, none of
the Parties shall have any further obligations thereunder other than in
relation to confidentiality.
2. Entire Agreement. This Agreement constitutes the entire agreement of the
Parties relating to the subject matter of this Agreement. There are no
promises, terms, conditions, obligations, or warranties other than those
contained in this Agreement. This Agreement supersedes all prior
communications, representations, or agreements, verbal or written, among
the Parties relating to the subject matter of this Agreement. This
Agreement may not be amended except in writing executed by the Parties and
3
approved by Clearwire Europe. Clearwire Europe is an intended beneficiary of
this Agreement.
Miscellaneous. This Agreement (a) shall be governed by and in accordance with
the internal laws of Belgium, without regard to the principles of conflicts of
law thereof; (b) shall be binding upon and inure to the benefit of the Parties
hereto and their respective successors and permitted assigns; and (c) may be
executed and delivered (including by facsimile transaction) in one or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
4
MAC Telecom Holdings SA
By:
--------------------------------
--------------------------------
Print Name
Its:
--------------------------------
MAC Telecom SA
By:
--------------------------------
--------------------------------
Print Name
Its:
--------------------------------
Clearwire Belgium SPRL
By:
--------------------------------
--------------------------------
Print Name
Its:
--------------------------------
-------------------------------------
[Xxxxxxx xx Xxxxxx]
5
EXHIBIT E
RESIGNATION LETTERS
6
MAC Telecom SA
Xxxxxx Xxxxxx 000
0000 Xxxxxxxx
Xxxxxxx
Date: _________________
Dear Sirs,
Re: Resignation as director and managing director - Waiver of claims
I hereby tender my resignation as director and managing director of MAC Telecom
SA, this resignation being effective as from today.
I confirm that I do not have any claim against MAC Telecom SA and/or its
respective organs and employees, from any nature whatsoever resulting from my
activities as (managing) director. If such claim exists or would exist, I hereby
irrevocably waive these claims and discharge MAC Telecom SA from any
responsibility of any nature in respect thereof.
-------------------------------------
Worldstar Services Limited
Represented by Nicolas du Chastel
7
MAC Telecom SA
Xxxxxx Xxxxxx 000
0000 Xxxxxxxx
Xxxxxxx
Date: _________________
Dear Sirs,
Re: Resignation as director and managing director - Waiver of claims
I hereby tender my resignation as director and managing director of MAC Telecom
SA, this resignation being effective as from today.
I confirm that I do not have any claim against MAC Telecom SA and/or its
respective organs and employees, from any nature whatsoever resulting from my
activities as (managing) director. If such claim exists or would exist, I hereby
irrevocably waive these claims and discharge MAC Telecom SA from any
responsibility of any nature in respect thereof.
-------------------------------------
Xxxxxxx Cat SPRL
Represented by Xxxx Xxxxxx
8
MAC Telecom Holdings SA
Xxxxxx Xxxxxx 000
0000 Xxxxxxxx
Xxxxxxx
Date: _________________
Dear Sirs,
Re: Resignation as director - Waiver of claims
I hereby tender my resignation as director of MAC Telecom Holdings SA, this
resignation being effective as from today.
I confirm that I do not have any claim against MAC Telecom Holdings SA and/or
its respective organs, from any nature whatsoever resulting from my activities
as director. If such claim exists or would exist, I hereby irrevocably waive
these claims and discharge MAC Telecom Holdings SA from any responsibility of
any nature in respect thereof.
-------------------------------------
Worldstar Services Limited
Represented by Nicolas du Chastel
9
MAC Telecom Holdings SA
Xxxxxx Xxxxxx 000
0000 Xxxxxxxx
Xxxxxxx
Date: ______________
Dear Sirs,
Re: Resignation as director - Waiver of claims
I hereby tender my resignation as director of MAC Telecom Holdings SA, this
resignation being effective as from today.
I confirm that I do not have any claim against MAC Telecom Holdings SA and/or
its respective organs, from any nature whatsoever resulting from my activities
as director. If such claim exists or would exist, I hereby irrevocably waive
these claims and discharge MAC Telecom Holdings SA from any responsibility of
any nature in respect thereof.
-------------------------------------
Xxxxxxx Cat SPRL
Represented by Xxxx Xxxxxx
10
MAC Telecom Holdings SA
Xxxxxx Xxxxxx 000
0000 Xxxxxxxx
Xxxxxxx
Date: ______________
Dear Sirs,
Re: Resignation as director - Waiver of claims
I hereby tender my resignation as director of MAC Telecom Holdings SA, this
resignation being effective as from today.
I confirm that I do not have any claim against MAC Telecom Holdings SA and/or
its respective organs, from any nature whatsoever resulting from my activities
as director. If such claim exists or would exist, I hereby irrevocably waive
these claims and discharge MAC Telecom Holdings SA from any responsibility of
any nature in respect thereof.
-------------------------------------
Xxxxxxx xx Xxxxxx
11
MAC Telecom Holdings SA
Xxxxxx Xxxxxx 000
0000 Xxxxxxxx
Xxxxxxx
Date: ______________
Dear Sirs,
Re: Resignation as director - Waiver of claims
I hereby tender my resignation as director of MAC Telecom Holdings SA, this
resignation being effective as from today.
I confirm that I do not have any claim against MAC Telecom Holdings SA and/or
its respective organs, from any nature whatsoever resulting from my activities
as director. If such claim exists or would exist, I hereby irrevocably waive
these claims and discharge MAC Telecom Holdings SA from any responsibility of
any nature in respect thereof.
-------------------------------------
X. Xxxxxxxx SPRL
Represented by Xxxxxxx Xxxxxxxx
12
EXHIBIT F
FORM OF PROFESSIONAL SERVICES AGREEMENT
13
(CLEARWIRE LOGO)
PROFESSIONAL SERVICES AGREEMENT
THIS PROFESSIONAL SERVICES AGREEMENT ("Agreement") is entered into this day
of ______, 2006, between [MAC TELECOM SA, a limited liability company organized
under the laws of the Kingdom of Belgium with registered office at Avenue Xxxxxx
326,1050 Bruxelles (Belgium) and registered with the register of legal entities
under number 0476 628 207 / CLEARWIRE BELGIUM SPRL, a limited liability company
organized under the laws of the Kingdom of Belgium with registered office at
Avenue Xxxxxx 331-333,1050 Bruxelles (Belgium) and registered with the register
of legal entities under number 0864 754 901] (the "Company") and [M Ridgwell
SPRL, a limited liability company organized under the laws of the Kingdom of
Belgium with registered office at Avenue Brillat-Savarin 68/M, 0000 Xxxxxxxx and
registered with the register of legal entities under number 0870 913 708 //
Xxxxxxx Xx Xxxxxx, [_] // Xxxxxxxx du Chastel, [_] // Xxxx Xxxxxx, [_]]
("Contractor") (collectively "Parties"). The Parties agree and acknowledge that
Contractor and/or Expert (as defined below) are also parties to certain
agreements relating to the sale and purchase of the shares of Mac Telecom and
Mac Telecom Holdings SA (collectively, the "Share Purchase Agreements") and that
this Agreement is executed in connection with and is an integral part of the
closing and performance of the Share Purchase Agreements.
[WE HAVE ASSUMED THAT THE MANAGERS WILL WORK UNDER THEIR MANAGEMENT COMPANIES.
IF NOT, ALL REFERENCES TO 'EXPERT' SHOULD BE REMOVED.]
The Company and Contractor agree as follows:
1. SERVICES AND FEES. Contractor agrees to provide, to the Company's
satisfaction, the services ("Services") set forth on Schedule A. The Company
agrees to pay Contractor for the Services the fees ("Fees") in accordance with
the provisions on Schedule A. Other than further vesting of the Options (as
defined in the Option Agreement) in favor of the [Contractor/Expert] as set
forth in Section 4(c), the Fees payable until the date set out in Schedule A
shall be the exclusive compensation paid by the Company for the Services
rendered during the entire duration of the Agreement (including for the
avoidance of doubt, for Services rendered after the date set out in Schedule A),
unless Contractor obtains prior written approval to incur expenses to be
reimbursed by the Company. No Fees will be due for the period during which the
Contractor would be unable, for reasons of force majeure, to perform the
Services and/or during which the Expert (as defined hereinafter) would be
unable, for reasons of force majeure or serious health issues, to represent the
Contractor in the performance of the Services, insofar as and to the extent that
such period would exceed one (1) month.
2. TERM AND TERMINATION. This Agreement, and Contractor's engagement hereunder,
shall commence as of the date this Agreement is signed by all Parties and shall
continue until December 7,2008, unless terminated earlier by either Party as
provided below:
(a) the Company will be entitled to terminate the Agreement at any time,
without notice or the payment of any indemnity, in the event (i) that either of
the licenses for the 3.450 - 3.475 / 3.550 - 3.575 MHz frequencies held by MAC
Telecom under license number INFRAPL2001\MODI-5\2006-01 or by Clearwire Belgium
SPRL under license number INFR/PL/2004/0001 is lost for any reason other than as
a direct result of the gross negligence or willful misconduct of the Company or
its Affiliates, or (ii) of serious misconduct or a serious fault of the
Contractor. For the purpose of the Agreement and without prejudice to other
causes of termination, the following events will be considered as serious
misconduct or a serious fault justifying the immediate termination of the
Agreement without notice or indemnity (this enumeration not being limitative):
(i) a criminal offence committed by Contractor, including the Expert (as
defined below), which is directly or indirectly related to the Services or has
an impact on the performance of the Services;
(ii) fraud or embezzlement committed by the Contractor, including the
Expert (as defined below);
1
(CLEARWIRE LOGO)
(iii) failure by the Contractor, and/or the Expert as the case may be, to
comply with the terms and conditions of the Agreement or the Share Purchase
Agreements within ten (10) business days after written notification of such
non-compliance;
(iv) the willful or gross neglect of the Services and/or the willful or
gross misconduct in the performance of the Services not cured within ten (10)
business days of written notice;
(v) legal or factual change of control at the level of the Contractor or
the unilateral replacement of the Expert by another without the Company's prior
written consent.
(b) In addition, the Company may terminate this Agreement, at will, for any
reason or no reason, with no less than thirty (30) days prior notice. In lieu of
such notice, the Company may at its option terminate this Agreement immediately
by paying Contractor an amount equal to one (1) month's Fees to be determined on
the basis of the average monthly compensation received by the Contractor during
the three (3) months preceding the notice of termination. Upon such termination,
the Company shall have no further obligations to Contractor other than payment
of unpaid and undisputed invoiced Fees in an amount equal to the percentage of
Services completed as of the date of termination.
(c) The Contractor may terminate this Agreement at will, for any reason or
no reason, by giving thirty (30) days prior written notice to the Company.
3. This Agreement shall in no way be construed as a guarantee of a business
relationship between Contractor and the Expert on the one hand and the Company
or any of its Affiliates (as defined below) on the other hand for any specified
period of time.
4. INDEPENDENT CONTRACTOR STATUS AND RESPONSIBILITIES.
(A) INDEPENDENT CONTRACTOR. Contractor is an independent contractor. For
the performance of the Services, the Contractor will be exclusively represented
by an expert designated by it, such as a director, manager, employee of the
Contractor (hereinafter referred to as the "Expert") provided that the Expert
executes any and all documents required by the Company as may be required by the
Company for the acceptance of such Expert. The Expert designated by the
Contractor in first instance is [Xx Xxxxxxx Xxxxxxxx / Xx Xxxxxxx xx Xxxxxx / Xx
Xxxxxxx du Chastel / Xx Xxxx Xxxxxx]. Given the level of qualifications required
for the proper performance of the Services, the Contractor shall not designate
any other expert without the Company's prior written consent. This Agreement
shall not create the relationship of employer and employee, a partnership or a
joint venture with the Contractor or the Expert. The Company shall not control
the details and means by which Contractor performs the Services.
(B) RESPONSIBILITY FOR TAXES, WAGES, LICENSES AND BENEFITS. Contractor
agrees that it is solely responsible for, and will pay all costs of, conducting
Contractor's independent business, including but not limited to: general
business liability insurance; licenses, permits, assessments and taxes
(including VAT taxes and business and occupation taxes); self-employment taxes;
income taxes; social security taxes; workers compensation taxes, and
unemployment taxes. Contractor shall be solely liable for the wages, fringe
benefits, payroll taxes, work schedules and work conditions of the Expert. The
Company will not be responsible for any of the foregoing payments, obligations,
taxes or benefits and Contractor agrees to indemnify, defend and hold the
Company harmless from any loss or damage (including attorneys fees, court costs
and regulatory penalties) that may be sustained as a result of, or in connection
with, Contractor's failure to satisfy the requirements set forth in this
Section.
(C) NO ACCESS TO BENEFIT PLANS. Except as otherwise specifically provided
below or otherwise agreed in writing. Contractor and the Expert shall not be
eligible for, and shall not participate in, any employee health, pension, stock
option or other fringe benefit plan, sponsored by the Company or any person or
entity that controls, is controlled by or is under common control with the
Company (hereinafter, an "Affiliate"). Contractor (or Expert, as the case may
be), is a party to that certain Stock Option Agreement, dated January 19,2005
(the "Option Agreement"), pursuant to which he was granted nonqualified stock
options under the Clearwire Corporation 2003 Stock Option Plan. As consideration
for the Services, the Parties hereby agree and acknowledge that so long
2
(CLEARWIRE LOGO)
as this Agreement has not been terminated pursuant to Section 2(a) or Section
2(c), the Options (as defined in the Option Agreement) will continue to vest in
favor of the [Contractor/Expert] and shall otherwise be subject to all terms and
conditions of the Plan (as defined in the Option Agreement). Termination of this
Agreement pursuant to Section 2(a), or voluntary termination of the Agreement by
Contractor pursuant to Section 2(c), shall be considered termination of
employment or other service relationship with the Company for purposes of the
Plan and the Options shall no longer vest in favor of the [Contractor/Expert]
and shall otherwise be subject to all terms and conditions of the Plan (as
defined in the Option Agreement). For the avoidance of doubt, termination
pursuant to Section 2(b) shall not be considered termination of employment or
other service relationship with the Company for purposes of the Plan.
(D) NO AUTHORITY TO BIND. Contractor acknowledges that it has no authority
to enter into contracts on behalf of the Company or to otherwise obligate the
Company in any respect, unless and to the extent that Contractor is appointed as
director (administrateur), manager (gerant), general manager (directeur general)
or managing director (administrateur delegue) of the Company or that specific
powers are delegated to it in writing.
(E) ANTI-BRIBERY LAWS. Contractor, including Expert, shall comply with all
anti-bribery laws of any country with which Contractor does business on behalf
of the Company. Finally, the Company will have the right to audit Contractor's
expenses and invoices when a reasonable question has been raised as to whether
there has been a violation of any applicable anti-bribery laws.
(F) CONFLICT OF INTEREST. During the term of this Agreement, Contractor
represents and warrants that it and the Expert will not perform services for
others in a manner that creates a conflict of interest with respect to the
Services to be performed for the Company pursuant to this Agreement or that
would present a significant opportunity for the disclosure of confidential
information. More specifically Contractor represents and warrants that
Contractor's entry into this Agreement and performance of the Services do not
and will not create a conflict of interest with any public or government
position ("Public Position") that Contractor or the Expert or any of the
Expert's immediate family members hold or may hold during the term of this
Agreement, nor violate any applicable laws or requirements with respect to any
such Public Position. Contractor further agrees that Contractor, Expert and the
Expert's immediate family members will not vote, preside over or exert influence
on any government, regulatory or other public matter that would assist the
Company in obtaining or retaining business or any improper advantage. Immediate
family means (i) a person's spouse, parents, brothers, sisters and children; and
(ii) the parents, brothers, sisters, and children of such person's spouse. If at
any time, any potential conflict of interest arises Contractor shall
immediately notify the Company Contact of the potential conflict in writing.
5. EMPLOYEES/SUBCONTRACTING. The Company is engaging Contractor because of
Contractor's unique skills and abilities. Contractor shall not allow any
employee(s) or subcontractor(s) of Contractor other than the Expert to provide
services to the Company under this Agreement.
6. CONTRACTOR WARRANTIES AND UNDERTAKINGS. Contractor represents, warrants and
undertakes that:
(A) Contractor has disclosed all facts, if any, pertaining to any
restrictions on the ability to enter into this Agreement and that Contractor is
not bound by any Agreements with third parties that would prevent the lawful
performance of Services.
(B) Contractor and the Expert will perform the Services utilizing
reasonable care and skill in accordance and consistent with customary industry
standards.
(C) Contractor and the Expert will not directly or indirectly communicate
any opinion or information that could in any way be adverse to the interests of
the Company or any of its Affiliates, any of its personnel, customers,
investors, products or services. This includes any statement that could impair
the goodwill or business reputation of the Company, its officers, directors, or
employees or that could benefit a competitor.
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(D) The obligations and undertakings of the Contractor under this Agreement
shall be binding under the same terms and conditions on the Expert and on any
other person (if any) who performs the Services with express prior consent of
the Company, and the Contractor shall procure compliance by the Expert.
Contractor shall hold the Company harmless from and indemnify it for any
claims or damages which would in any way whatsoever originate from or relate to
the conclusion, performance and/or termination of the Agreement and which would
be caused by Contractor's own fault or by a fault of any of its directors,
employees and representatives, including but not limited to the Expert, in the
performance of the Services. This obligation of indemnification shall apply in
particular in case of non-compliance with any of the obligations relating to
taxes and social security.
7. CONFIDENTIALITY. Contractor recognizes that in providing the Services under
this Agreement, Contractor will have access to certain information not generally
known to the public relating to the Company or its Affiliates. The Contractor
agrees that this information is "Confidential Information" and belongs to the
Company or its Affiliates, respectively.
"CONFIDENTIAL INFORMATION" includes, without limitation, any information,
in any form, that the Company or any of its Affiliates identifies as or
considers to be confidential or proprietary, and that is not publicly or
generally available relating to the Company, or each of its Affiliate's trade
secrets; know-how; concepts; methods; research and development; products,
technology development plans; marketing plans or strategies, databases;
inventions; research data and mechanisms; software (including functional
specifications, source code and object code); procedures; engineering; marketing
strategies; sales; customers and customer contacts and needs; joint venture
partners; suppliers; financial status and strategies; contracts or investors,
obtained by the Contractor or the Expert during the Term of this Agreement as
well as prior to this Agreement as regards the latter to the extent covered by
the Restrictive Covenant Agreement dated December 7, 2004 between among others
the Company and the [Contractor/Expert]. Confidential Information includes (i)
information developed by the Contractor, alone or with others, or entrusted to
the Contractor by the Company or by its customers or others.
Throughout the term of the Agreement and thereafter indefinitely, the
Contractor undertakes to the Company to hold the Confidential Information of the
Company and its Affiliates in strict confidence, and not disclose or use it at
any time except as authorized by the Company. If anyone tries to compel the
Contractor to disclose any of such Confidential Information, by subpoena or
otherwise, the Contractor will immediately notify the Company so that the
Company may take any actions it deems necessary to protect its interests.
The Contractor understands it is the policy of the Company not to
improperly obtain or use confidential, proprietary or trade secret information
that belongs to third parties, including others who have employed or engaged the
Contractor or who have entrusted confidential information to the Contractor.
Accordingly, the Contractor undertakes to the Company not to use for the benefit
of or disclose to the Company confidential, proprietary or trade secret
information that belongs to others, unless the Contractor advises the Company
that the information belongs to a third party and both the Company (on the one
hand) and the owners of the information (on the other hand) consent to the
disclosure and use. Notwithstanding anything to the contrary in this Agreement,
Contractor, including the Expert, shall at all times remain subject to any
applicable confidentiality obligations arising prior to the date of this
Agreement.
8. NON-EXCLUSIVE - NON-COMPETITION. This Agreement shall limit Contractor's
right to provide services for others, except to the extent Contractor shall
comply with the terms of this Agreement, including for the avoidance of doubt
the paragraphs below in this Section 8. This Agreement does not grant to
Contractor an exclusive right or privilege to provide the Services (or any
future services). The Company may obtain the Services from any other provider of
its choice at any time or undertake for itself any or all of the Services. Any
business opportunities related to the Company's business that Contractor learns
of or obtains while engaged by the Company belong to the Company, and Contractor
will pursue them only for the Company's benefit.
During the course of the Agreement and for a period of twelve (12) months
after the date of the termination of the Agreement or the Services for any
reason, Contractor will not directly or indirectly, provide services to, be
employed by, own, manage, operate, join, be connected to, or benefit in any way
from any business that designs, develops, manufactures, produces, offers for
sale or sells a product or service that can be used as a substitute for,
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performs substantially the same function as, is a practical alternative for or
is generally intended to satisfy the customer or client needs for any product or
service designed, developed, manufactured, produced, offered for sale or sold by
the Company or any of its Affiliates' businesses. For purposes of the foregoing,
Contractor will be deemed to be connected with such business if the business is
carried on by: (a) a partnership in which the Contractor is a general or limited
partner, (b) a corporation of which Contractor is a shareholder (other than a
shareholder owning less than 5% of the total outstanding shares of the
corporation), officer or director; or as an employee, consultant, agent, member
or other representative.
This prohibition shall apply to competitive business activities in Belgium and
any other country in which the Company or it Affiliates provide wireless
broadband services or have acquired wireless spectrum and have indicated an
intent to provide wireless broadband services by themselves or in joint effort
with any other person or entity.
In the event Contractor and/or Expert wish to carry out professional activities
which may be subject to this non-compete clause, they may obtain prior written
consent from the Company.
9. INTELLECTUAL PROPERTY. The Contractor completely, definitively, and
exclusively transfers and assigns to the Company, who hereby accepts, all
existing and future intellectual property, industrial property and all other
rights, including without limitation patent rights, trademark rights,
copyrights, neighboring rights, software rights, rights to domain names, rights
to semiconductor typographies, database rights and design rights whether
registered or unregistered (hereinafter the "Rights"), on the works,
preparations, drafts, pieces of work, studies, research results, experiments,
trials, databases, inventions, discoveries, data, know-how, software,
semi-conductors, chips, semi-conductor topographies and any other creations or
works or following the directions of the Company and related to services
rendered to Clearwire Corporation and/or its Affiliates (hereinafter the
"Works"), provided the Rights came into existence prior to or during the term of
this Agreement, and regardless of the place at which and circumstances under
which such Rights come into existence, in the most extensive way possible, with
regard to all forms and means of exploitation, for the duration of the period of
validity of the Rights in all countries.
This assignment shall not trigger any additional compensation in excess of
the Contractor's Fees. Nonpayment of the Contractor's Fees in case of breach of
this Agreement will not affect the transfer and assignment of the Rights already
existing.
The rights for the Works assigned under this Section include, but are not
limited to, reproduction rights (including adaptation and translation rights),
rental and distribution rights, rights to communicate the Works to the public in
any form and in any manner, in whole or in part, in a manner, method or way
known or unknown at the moment of signature of this Agreement, including the
right to give the public access to the Works through a network, as well as the
right to re-utilise or extract the entire contents of a database or a
substantial part thereof or systematically and repeatedly use insubstantial
parts of said database.
The Contractor undertakes to fully and immediately inform the Company if
and when it has created, designed, developed or produced certain Works. The
Contractor undertakes to fully communicate and deliver all documents, data,
information and updates on these documents, data and information in relation to
the Works to the Company, and this immediately upon the creation, design,
development or production of the Works. The Contractor undertakes to assist the
Company in all proceedings for obtaining or preserving the rights transferred or
assigned under this Section. The Contractor undertakes to execute all documents
in order to permit, facilitate or accelerate a patent application or the
preservation of a patent or any other application for any other registered
right, during the course of the Agreement as well as afterwards. The Contractor
shall refrain from taking any steps, in its own name or in name of a third
party, in order to obtain or maintain any Right in the Works or in any results
deriving from the Contractor's activities for the Company.
The Contractor agrees that the Company will exclusively represent it in the
exercise of its moral rights. The Contractor renounces to exercise its right to
oppose against any modifications of its Works by the Company and/or its
Affiliates as far as the Company and/or such Affiliate consider it desirable for
their use and further exploitation. The Contractor renounces to exercise its
right to require to mention its name when the Company and/or its Affiliates use
and further exploit the Works, as well as register them. The Contractor also
renounces to exercise
5
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these rights when third persons are authorised to use and further exploit the
Works of the Contractor by the Company and/or its Affiliates and are also
authorised by the Company and/or its Affiliates to modify the Works and to omit
the mention of the Contractor's name.
10. NON SOLICITATION. During the course of the Agreement and for a period of one
(1) year from the date of termination of Agreement for any reason, the
Contractor shall not directly or indirectly solicit, recruit or entice any of
the following to cease, terminate or reduce any relationship with the Company or
its Affiliates or to divert any business from the Company or its Affiliates: (a)
any person who is or was an employee of the Company or any of its Affiliates
during the Agreement or, if after the termination of the Agreement, during a
one-year period immediately preceding the termination of the Agreement; (b) any
contractor or supplier of the Company or any of its Affiliates; (c) any customer
or client of the Company or any of its Affiliates; or (d) any prospective
customer or client of the Company or any of its Affiliates from whom the
Contractor actively solicited business during the Agreement, or if after the
termination of the Agreement, within the last six (6) months prior to the
termination of the Agreement.
11. NON DISPARAGEMENT. Contractor will not disparage the Company or any of its
Affiliates, its officers or employees or their business and will not interfere
with their relationships with their customers, advertisers, joint venture
partners, investors, employees, vendors, bankers or others. This applies during
the course of the Agreement and indefinitely thereafter.
12. REMEDIES. The Parties agree that damages may be inadequate to compensate for
the unique losses to be suffered in the event of a breach of this Agreement, and
that the damaged party will be entitled, in addition to any other remedy it may
have under this Agreement or at law, to seek and obtain injunctive and other
equitable relief, including specific performance of the terms of this Agreement
without the necessity of posting bond.
13. NOTICES. All notices under this Agreement shall be in writing and shall be
considered effective if delivered or sent by personal delivery, courier,
facsimile, overnight mail or both certified and regular mail to the following
addresses, or such other address as a party may specify by the giving of notice
to the other:
MAC Telecom / Clearwire To: MAC TELECOM SA / CLEARWIRE BELGIUM SPRL
Belgium: Xxxxxx Xxxxxx 000
0000 Xxxxxxxx (Xxxxxxx)
Attn: Managing Country Director
And Attn: Legal Department
Fax#: [__________]
CONTRACTOR To: ________________________________
________________________________
________________________________
14. MISCELLANEOUS.
(A) NON-WAIVER. Any delay or failure of either Party to insist upon or
enforce strict performance of any provision in this Agreement shall not be
construed as a waiver of its right to insist upon or enforce such provision in
the future or any other provision in this Agreement.
(B) CONTROLLING LAW/VENUE. This Agreement shall in all respects, including
matters of construction, validity and performance, be governed by and construed
according to the internal laws of the Kingdom of Belgium, without giving effect
to "choice of law" principles. Any legal proceeding in connection with this
Agreement shall be brought exclusively in the courts in Brussels which the
parties agree is a convenient forum.
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(C) SEVERABILITY. If any provision of this Agreement is held to be
unenforceable, the remaining provisions will nevertheless continue to be valid
and enforceable to the maximum extent permitted by law. The Agreement shall not
be construed against the Company by reason of the drafting or preparation
hereof.
(D) ENTIRE AGREEMENT. Unless specified otherwise herein, this Agreement is
the final and complete expression of the Parties' agreement on these subjects,
replaces and supersedes all prior oral or written agreements on these subjects,
and may be amended only in writing signed by both Parties.
(E) COUNTERPARTS. This Agreement may be executed in any number of
counterparts, all of which when taken together shall constitute one agreement
binding on each Party, notwithstanding that each Party is not a signatory to the
same counterpart.
(F) NO ASSIGNMENT. This Agreement shall not be assigned or transferred by
Contractor without the prior written consent of the Company.
The Parties have signed this Agreement as of the date first set forth above
in two originals, each Party acknowledging having received one duly signed
original.
[MAC Telecom / Clearwire Belgium]: CONTRACTOR:
----------------------------------------
By: By:
--------------------------------- ------------------------------------
Name: Name:
------------------------------- ----------------------------------
Title: Title:
------------------------------ ---------------------------------
EXPERT
for acknowledgment and approval of the
obligations under this Agreement, in
particular Section 6(d):
----------------------------------------
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
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SCHEDULE A
1. Scope of Services:
2. Fees:
8
EXHIBIT G
TERMINATION OF SHAREHOLDERS AGREEMENT RELATING TO
MAC TELECOM HOLDINGS SA
The undersigned hereby terminate and waive all rights under the
Shareholders Agreement dated March 14, 2003 relating to MAC Telecom Holdings SA,
a 'societe anonyme' organized under the laws of Belgium, effective this ___th
day of ____________, 2006.
----------------------------------------
Xxxx XXXXXX
----------------------------------------
Xxxxxxx xx XXXXXX
----------------------------------------
Nicolas du CHASTEL
----------------------------------------
Xxxxxxx XXXXXXXX
14
EXHIBIT H
TERMINATION OF MANAGEMENT AGREEMENT
This TERMINATION OF MANAGEMENT AGREEMENT (this "Agreement"), dated as of
__________, 2006, is made by and between MAC Telecom SA, a 'societe anonyme'
organized under the laws of Belgium ("MAC Telecom"), and MAC Telecom Holdings
SA, a 'societe anonyme' organized under the laws of Belgium ("MTH"). MAC Telecom
and MTH may each be referred to herein as a "Party" and together as the
"Parties."
WHEREAS, MAC Telecom and MTH are parties to that certain Management
Agreement, dated as of December 7,2004 (the "Management Agreement");
WHEREAS, the Parties, among others, have entered into the MTH Stock
Purchase Agreement dated _________, 2006 (the "Stock Purchase Agreement"),
pursuant to which Clearwire Europe S.a x.x., a Luxembourg limited liability
company ("Clearwire Europe"), has agreed to purchase all of the outstanding
stock of MTH;
WHEREAS, pursuant to Section 7.3(d) of the Stock Purchase Agreement, the
Parties have agreed to enter into this Agreement; and
WHEREAS, entry into this Agreement is a material inducement to Clearwire
Europe to enter into the Stock Purchase Agreement.
NOW, THEREFORE, in consideration of the promises and the mutual covenants,
conditions, and agreements hereinafter set forth, the Parties agree as follows:
1. Mutual Release of Claims. Effective as of the date of the closing of the
Stock Purchase Agreement (the "Closing"), and subject thereto, each of MTH
and MAC Telecom, for themselves and each of their respective subsidiaries,
and their respective predecessors, parents, subsidiaries, divisions,
related or affiliated companies, officers, directors, shareholders,
members, partners, employees, heirs, successors, assigns, representatives,
agents and counsel, hereby releases, dismisses and forever discharges the
other Party and each of its respective subsidiaries, and their respective
predecessors, parents, subsidiaries, divisions, related or affiliated
companies, officers, directors, shareholders, members, partners, employees,
heirs, successors, assigns, representatives, agents and counsel from any
and all claims (including claims for attorneys' fees), demands, damages,
suits, proceedings, actions, arbitrations and/or causes of action of any
kind and every description, whether known or unknown, arising from or
relating to any fact or matter on or prior to the Closing relating to the
Management Agreement.
2. Consent to Termination of the Management Agreement. Effective as of the
Closing, and subject thereto, the Parties hereby consent to the termination
of the Management Agreement. From and after the Closing the Management
Agreement shall be null and void and have no further force or effect.
3. No Further Payments. MTH hereby acknowledges that it no longer has any
claims for outstanding payments from MAC Telecom under the Management
Agreement.
4. Entire Agreement. This Agreement constitutes the entire agreement of the
Parties relating to the subject matter of this Agreement. There are no
promises, terms,
15
conditions, obligations, or warranties other than those contained in this
Agreement. This Agreement supersedes all prior communications,
representations, or agreements, verbal or written, among the Parties
relating to the subject matter of this Agreement. This Agreement may not be
amended except in writing executed by the Parties and approved by Clearwire
Europe. Clearwire Europe is an intended beneficiary of this Agreement.
5. Miscellaneous. This Agreement (a) shall be governed by and in accordance
with the internal laws of Belgium, without regard to the principles of
conflicts of law thereof; (b) shall be binding upon and inure to the
benefit of the Parties hereto and their respective successors and permitted
assigns; and (c) may be executed and delivered (including by facsimile
transaction) in one or more counterparts, each of which shall be deemed an
original, but all of which together shall constitute one and the same
instrument.
[The remainder of this page is intentionally left blank. The signature page
follows.]
16
MAC TELECOM HOLDINGS SA
BY:
---------------------------------
---------------------------------
Print Name
ITS:
--------------------------------
MAC TELECOM SA
BY:
---------------------------------
---------------------------------
Print Name
ITS:
--------------------------------
17
EXHIBIT I
STOCK PLEDGE AGREEMENT
THIS STOCK PLEDGE AGREEMENT (this "Agreement") is made as of this _________
day of ________, 2006, by ___________ (the "Pledgor"), in favor of Clearwire
Europe S.a.r.l., a Luxembourg limited liability company (the "Pledgee").
RECITALS
A. Among others, Pledgor and Pledgee are parties to that certain MTH Stock
Purchase Agreement dated as of _____________, 2006 (as the same may be amended,
the "MTH Agreement"), pursuant to which Pledgor received Class A Common Stock of
Clearwire Corporation, a Delaware corporation (the "Corporation"), as partial
consideration for the sale of all of Pledgor's right, title and interest in and
to his registered shares of MAC Telecom Holdings SA., a 'societe anonyme'
organized under the laws of Belgium.
B. It is a material condition precedent to Pledgee's obligations under the
MTH Agreement that Pledgor enter into this Agreement to secure the obligations
of Pledgor as described below.
NOW, THEREFORE, in consideration of the foregoing Pledgor agrees as
follows:
AGREEMENT
1. DEFINED TERMS. As used in this Agreement, the following terms have the
following meanings:
"Event of Default" has the meaning given in Section 7 hereof.
"Governmental Authority" means the government of the United States or
any State or any foreign country or any political subdivision of any thereof or
any branch, department, agency, instrumentality, court, tribunal or regulatory
authority which constitutes a part or exercises any sovereign power of any of
the foregoing.
"Lien" means, for any person, any security interest, pledge, mortgage,
charge, assignment, hypothecation, encumbrance, attachment, garnishment,
execution or other voluntary or involuntary lien upon or affecting the revenues
of such person or any real or personal property in which such person has or
hereafter acquires any interest.
"Pledged Stock" means the shares of common stock of the Corporation
which are pledged hereunder as provided in Section 2 hereof.
"MTH Agreement" has the meaning given in the Recitals hereof.
"Professional Services Agreement" means any professional services
agreement entered into pursuant to the MTH Agreement by Pledgee, MAC Telecom SA,
and/or Clearwire Belgium SPRL, on the one hand, and Pledgor or a company
controlled by Pledgor, on the other.
18
2. GRANT OF SECURITY INTEREST. Pledgor hereby pledges, assigns and grants
to Pledgee, subject to Section 15 hereafter, a security interest in all of his
right, title and interest in and to the following personal property, whether now
owned or hereafter acquired (the "Collateral"):
(a) INITIAL SHARES OF STOCK. ____________ (_____) shares of the
outstanding Common Stock of the Corporation, which are registered in the name of
Pledgor and shall be evidenced by share certificate _______, a copy of which is
attached hereto as Schedule 1.
(b) RELATED RIGHTS. All securities and stock powers delivered by
Pledgor in substitution for or in addition to any of the foregoing, all
certificates and instruments representing or evidencing such securities, and all
cash and stock and other non-cash dividends, including liquidating dividends,
stock rights, warrants and other rights to subscribe at any time and from time
to time received, receivable or otherwise distributed in respect of or in
exchange for any or all thereof (including without limitation any additional or
substitute shares received by Pledgor pursuant to Section 3.3 of the MTH
Agreement); and in the event Pledgor receives any such property, Pledgor will
immediately deliver it to Pledgee to be held hereunder; and
(c) PROCEEDS AND PRODUCTS. All cash and non-cash proceeds and products
of all of the foregoing property.
3. TRANSFER OF INSTRUMENTS, ETC. Pledgor agrees to deliver to Pledgee all
instruments and stock certificates pertaining to the Collateral now owned and to
deliver to Pledgee promptly upon receipt thereof all instruments and stock
certificates pertaining to the Collateral hereafter acquired. Without limiting
the foregoing, if Pledgor shall become entitled to receive or shall receive, in
connection with any of the Collateral, any: (i) stock certificate, including
without limitation any certificate representing a stock dividend or in
connection with any increase or reduction of capital, reclassification, merger,
consolidation, sale of assets, combination of shares, stock split, spin-off,
split-off or split-up, or liquidation; (ii) option, warrant, or right, whether
as an addition to or in substitution or in exchange for any of its securities,
or otherwise; or (iii) dividend (provided that Pledgor shall be entitled to
retain any cash dividend declared and paid at a time when no Event of Default
has occurred and is continuing) or distribution payable in property, including
securities issued by someone other than the issuer of any of its securities;
then Pledgor shall accept the same as Pledgee's agent, in trust for Pledgee, and
shall deliver them forthwith to Pledgee in the exact form received, with, as
applicable, Pledgor's endorsement when necessary, or appropriate stock powers
duly executed in blank, to be held by Pledgee, subject to the terms hereof, as
part of the Collateral.
19
4. OBLIGATIONS SECURED. The pledge, assignment and grant of security
interest made pursuant to this Agreement is given to secure the full and timely
performance of all obligations of Pledgor owing to Pledgee now existing or
hereafter incurred which arise pursuant to or in connection with the MTH
Agreement, the Professional Services Agreement, this Agreement, and any other
agreement entered into by or on behalf of Pledgor with Pledgee pursuant to the
MTH Agreement or Professional Services Agreement (collectively, the
"Obligations").
5. CERTAIN AGREEMENTS REGARDING THE COLLATERAL. Pledgor represents and
warrants to, and agrees with Pledgee that:
(A) Pledgor is the legal and beneficial owner of all of the Collateral
and is not prohibited by contract or otherwise from subjecting me same to the
pledge and security interest created hereby;
(B) The Collateral is free and clear of all Liens;
(C) Pledgor will neither create nor suffer to exist any Lien on the
Collateral, nor sell, transfer, lease or otherwise dispose of any item of
Collateral; and
(D) Pledgor will fully and punctually perform any duty required of it
in connection with the Collateral and will not take any action which will
impair, damage or destroy Pledgee's rights with respect to the Collateral or
hereunder or the value thereof.
6. PLEDGOR'S VOTING RIGHTS. So long as no Event of Default has occurred and
is continuing, Pledgor shall be entitled to exercise, or permit others to
exercise, voting rights incident to the Collateral but may not vote for the sale
of any corporate asset at less than fair market value nor vote in a way
adversely affecting the value of the Collateral. Upon the occurrence and
continuation of an Event of Default, at the option of Pledgee and upon notice to
Pledgor, Pledgor's right to exercise, or permit others to exercise, such voting
rights shall immediately cease and terminate and all voting rights with respect
to the Collateral shall thereupon rest solely and exclusively in Pledgee. The
foregoing sentence shall constitute and grant to Pledgee an irrevocable proxy
coupled with an interest to vote the Collateral upon the occurrence and
continuation of such an Event of Default, and any officer of any corporation
whose voting stock constitutes Collateral, including without limitation any
inspectors of elections or tellers, may rely hereon and on any written notice
from Pledgee as to the existence of an Event of Default and Pledgee's right to
vote such Collateral.
7. EVENTS OF DEFAULT. The occurrence of any of the following events
shall constitute an "Event of Default":
(A) Pledgor has failed to comply with any covenant or agreement
contained in the MTH Agreement, the Professional Services Agreement, this
Agreement, or any other agreement executed in connection with the MTH Agreement
or the Professional Services Agreement; or
(B) Any representation or warranty made or deemed made by Pledgor
under or in connection with the MTH Agreement, the Professional Services
Agreement, this Agreement or any other agreement executed in connection witih
the MTH Agreement or the Professional Services Agreement shall prove to have
been incorrect or incomplete in any material respect when made or deemed made.
20
In order to declare an Event of Default, Pledgee shall send written
notice to Pledgor setting out the declaration including the basis for the
claimed Event of Default (the "Default Notice").
8. DISPUTE CONCERNING AN EVENT OF DEFAULT.
(A) If Pledgor shall dispute whether an Event of Default as set forth
in the Default Notice has in fact occurred, Pledgor shall send written objection
to Pledgee within ten (10) days after receipt by Pledgor of the Default Notice.
Pledgee shall not exercise any remedy for an Event of Default until the later of
expiration of the ten (10) day period or, if an objection has been timely made
by Pledgor, resolution whether an Event of Default has occurred in accordance
with Section 21(a) and 21(b).
(B) If Pledgor has timely submitted its written objection, then either
Pledgor or Pledgee may seek a determination from the arbitrators in accordance
with Section 21(a) and 21(b) below whether or not Pledgee's assertion that an
Event of Default occurred is manifestly without merit ("kennelijk ongegrond"/
"manifestement non-fonde"). Each party shall be permitted to submit such
materials supporting their position as they may reasonably determine and
arbitrators shall permit. Each party shall use its reasonable commercial efforts
to expedite the determination from the arbitrators. Without prejudice to Section
8(c), the determination of the arbitrators as to whether Pledgee's assertion
that an Event of Default occurred is manifestly without merit shall not be
binding on the parties in the ultimate resolution of said dispute.
(C) Unless the arbitrators find pursuant to Section 8(b) that
Pledgee's assertion that an Event of Default occurred is manifestly without
merit, Pledgee shall hold the Collateral until such dispute has been finally
resolved in accordance with this Agreement. Notwithstanding the above, upon
request of Pledgor after an objection has been timely filed, the Collateral
shall be transferred to an escrow agent mutually satisfactory to the parties
(provided the same shall not affect the perfection or priority of the security
interest granted hereunder); provided that in no event shall Pledgee be required
to release any of the Collateral prior to expiration of the term under Section
15.
(D) In no event shall Pledgee, escrow agent or any other person or
entity be liable or responsible for any loss in value of the Collateral pending
resolution of any dispute.
9. TAXES. Pledgor will pay before delinquency any taxes which are or may
become through assessment or distraint or otherwise a Lien on the Collateral and
will pay any tax which may be levied on any Obligation secured hereby.
10. RELEASE OF COLLATERAL, ETC. The obligations of Pledgor hereunder shall
not be affected by the release or substitution of any Collateral or by the
release of or any renewal or extensions of time to any party to any instrument,
obligation or liability secured hereby. Pledgee shall not be bound to resort to
or exhaust its recourse or to take any action against other parties or other
collateral. Beyond the exercise of reasonable care to assure the safe custody of
the Collateral while held hereunder, Pledgee shall have no duty or liability to
preserve rights pertaining thereto and shall be relieved of all responsibility
for the Collateral upon surrendering it or tendering surrender of it to Pledgor.
11. FURTHER ASSURANCES. Pledgor, at his sole reasonable cost and expense,
will at, any time and from time to time hereafter, to the extent it has been
demonstrated by Pledgee
21
that they are necessary to preserve Pledgee's rights under this Agreement: (a)
execute such instruments and perform such other acts as Pledgee may reasonably
request to establish and maintain the security interests herein granted by
Pledgor to Pledgee and the priority and continued perfection thereof; (b) obtain
and promptly furnish to Pledgee evidence of all such government approvals as may
be required to enable Pledgee to comply with its obligations hereunder; and (c)
execute and deliver all such other instruments and perform all such other acts
as Pledgee may reasonably request to carry out the transactions contemplated
hereunder and under the MTH Agreement. Pledgor also authorizes Pledgee to file
any and all financing statements and renewals thereof deemed necessary by
Pledgee.
12. FEES AND EXPENSES. Pledgee shall pay any tax, assessment, insurance
premium, recording or filing fee, or other expense for the protection or
perfection of Pledgee's interests in the Collateral. Provided that an Event of
Default has occurred, Pledgor agrees to pay Pledgee on demand all fees and
expenses, including, without limitation, reasonable attorneys' fees and
disbursements incurred by Pledgee (a) in all efforts made to enforce payment of
any of the Obligations, or (b) in connection with the modification, amendment,
administration and enforcement of the Obligations.
13. REMEDIES UPON DEFAULT. If an Event of Default shall occur, Pledgee
shall have all of the remedies provided by law or equity and, without limiting
the generality of the foregoing, or the remedies provided in any other section
hereof, shall have the following remedies:
(A) The remedies under any agreement between Pledgor and Pledgee;
(B) The remedies of a secured party under the Uniform Commercial Code;
(C) The right to exercise all voting rights incident to the Collateral
as provided in Section 6 above;
(D) The right to receive all dividends and all other distributions of
any kind on all or any of the Collateral;
(E) The right to exercise any and all rights of collection, conversion
or exchange, and any and all other rights, privileges, options or powers of
Pledgor pertaining or relating to the Collateral (Pledgor hereby irrevocably
constituting and appointing Pledgee his proxy and attorney-in-fact with full
power of substitution so to do), although Pledgee shall not have any duty to
exercise any such rights, privileges, options or powers or to sell or to
otherwise realize upon any of the Collateral, as hereinafter authorized, or to
preserve the same, and Pledgee shall not be responsible for any failure to do so
or delay in so doing; and/or
(F) The right to sell, assign and deliver the whole or, from time to
time, any part of the Collateral at any broker's board or at any private sale or
at public auction, with or without demand or advertisement of the time or place
of sale or adjournment thereof or otherwise, for cash, for credit or for other
property, for immediate or future delivery, and for such price or prices and on
such terms as Pledgee in its discretion may determine, and Pledgee may bid for
and purchase the whole or any part of the Collateral so sold free from any such
right or equity of redemption. Pledgee may, without notice or publication,
adjourn any public or private sale or cause the same to be adjourned from time
to time by announcement at the time and place fixed for the sale, and such sale
may be made at any time or place to which the same may be so adjourned. For the
purposes hereof, (i) a private sale, shall, in the case of the
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Collateral, mean a sale after solicitation of a number of persons reasonably
approximating the maximum number which, in the sole opinion of Pledgee, shall
not require registration of the Collateral so being offered for sale pursuant to
the Securities Act of 1933, as amended (the "1933 Act"), or compliance with any
applicable state securities law commonly known as a "Blue Sky Law," and (ii) an
agreement to sell all or any part of the Collateral shall be treated as a sale
thereof, and Pledgee shall be free to carry out such sale pursuant to such
agreement and Pledgor shall not be entitled to the return of any Collateral
subject thereto, notwithstanding the fact that after Pledgee shall have entered
into such an agreement all Events of Default may have been remedied or the
obligations may have been paid in full.
In view of the possible position of Pledgor as an "affiliate" or
"control person" of the issuer of all or a portion of securities constituting
the Collateral under the 1933 Act, Pledgor understands that compliance with the
1933 Act may very strictly limit the course of conduct of Pledgee if Pledgee
were to attempt to dispose of all or any part of the Collateral and may also
limit the extent to which or the manner in which any subsequent transferee of
the Collateral may dispose of the same. Pledgor also understands that there may
be other legal restrictions or limitations affecting Pledgee in any attempts to
dispose of all or any part of the Collateral under applicable Blue Sky or other
state securities laws. Pledgor agrees that any private sale conducted in a
manner which complies with the 1933 Act and Blue Sky or state securities laws
shall be commercially reasonable (within the meaning of Section 9A-610(b) of the
Uniform Commercial Code), and Pledgor hereby waives any claims against Pledgee
arising by reason of the fact that the price at which the Collateral may have
been sold at such a private sale was less than the price which might have been
obtained at a public sale or was less than the aggregate amount of the
Obligations, even if Pledgee accepts the first offer received and does not offer
the Collateral to more than one possible purchaser. Without limiting the
generality of the foregoing, the foregoing provisions would apply if, for
example, Pledgee were to place all or any part of the Collateral for private
placement by an investment banking firm, or if such investment banking firm
purchased all or any part of the Collateral for its own account, or if Pledgee
placed all or any part of the Collateral privately with a purchaser or
purchasers.
14. NOTICE OF SALE. Pledgor agrees that a period of seven (7) days from the
date notice is sent shall be a reasonable period of notification, if required,
of sale or other disposition of Collateral by Pledgee as secured party, and that
any notice or other communication from Pledgee to Pledgor pursuant to this
Agreement or required by any statute may be given to Pledgor at the address
specified at the end of this Agreement or at such other address as Pledgor may
provide to Pledgee in writing from time to time.
15. RELEASE OF PLEDGE. Unless an Event of Default has been previously
claimed, and in the event of a dispute, unless the arbitrators, pursuant to
Section 8, have determined that Pledgee's assertion that an Event of Default has
occurred is not manifestly without merit, Pledgee shall definitively and
irrevocably release the Pledge on the earlier of: (a) 12 months from the date of
Closing and (b) the end of the applicable "market stand-off" period as set forth
in any agreement entered into by Pledgor pursuant to 6.3 of the MTH Agreement.
Release of the Collateral to Pledgor pursuant to this Agreement shall not
release Pledgor of any other obligations Pledgor may have including pursuant to
any applicable "market standoff" agreement to which such Pledgor is a party. If
an Event of Default shall have been claimed and if the arbitrators shall find
such claim to be manifestly without merit, then the Event of Default asserted by
Pledgee shall not be a basis to hold the Collateral provided that in no event
shall Pledgee be required to release any of the Collateral prior to expiration
of the term under Section 15.
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16. NOTICES. All notices required or permitted under this Agreement shall
be effective upon receipt if they are delivered in writing in person, by
facsimile or sent by first class mail to the Pledgee at 0000 Xxxx Xxxxxxxxxx
Xxxxxxxxx XX, Xxxxx 000 Xxxxxxxx, Xxxxxxxxxx 00000, Attention: Xx. Xxxxxxx
Xxxxxxx, and to the Pledgor at the address specified at the end of this
Agreement, or at such alternative address as the recipient may provide to
Pledgee in writing from time to time.
17. HOLD HARMLESS. Without prejudice to and with the same limitations as
provided by the other provisions of this Agreement, Pledgor will indemnify and
hold Pledgee and the escrow agent (if any) and each of their agents, successors,
heirs and assigns (each an "Indemnified Party") harmless from all liability,
loss, damage or expense, including reasonable attorneys' fees and costs, that
the Indemnified Party may incur resulting from, arising out of or relating to
Indemnified Party's good faith efforts to comply with or enforce the terms of
this Agreement, provided, however, said indemnification shall not apply to the
extent that any such liability, loss, damage or expense arises out of or is
based solely upon the Indemnified Party's wilful misconduct or gross negligence.
The covenants set forth in this Section 17 shall survive the termination of this
Agreement.
18. NO WAIVER; REMEDIES CUMULATIVE. This Agreement shall not be qualified
or supplemented by course of dealing. No amendment, modification, termination or
waiver of any provision of this Agreement, and no consent to any departure by
Pledgor therefrom, shall in any event be effective unless the same shall be in
writing and signed by Pledgee and, in the case of any such amendment or
modification, by Pledgor. No waiver or indulgence by Pledgee as to any required
performance by Pledgor shall constitute a waiver as to any required performance
or other obligations of Pledgor hereunder. The exercise of any right, power, or
remedy shall in no event constitute a cure or waiver of any Event of Default nor
prejudice the right of Pledgee in the exercise of any right hereunder or
thereunder. The rights and remedies provided herein are cumulative and not
exclusive of any right or remedy provided by law.
19. SEVERABILITY. In case any one or more of the provisions contained in
this Agreement is invalid, illegal or unenforceable in any respect in any
jurisdiction, the validity, legality and enforceability of such provision or
provisions will not in any way be affected or impaired thereby in any other
jurisdiction; and the validity, legality and enforceability of the remaining
provisions contained herein will not in any way be affected or impaired thereby.
20. GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York, other than its conflict of
law rules, provided that the determination whether an Event of Default has in
fact occurred shall be governed by the laws of Belgium.
21. DISPUTE RESOLUTION.
(a) Unless otherwise agreed by the parties, any dispute whether Event
of Default has occurred shall be submitted to binding arbitration under the
Rules of Conciliation and Arbitration of the International Chamber of Commerce
(the "ICC Rules"). Any such arbitration shall be conducted in Brussels, Belgium
by a panel of three arbitrators, comprised of one arbitrator appointed by each
party to the dispute and one neutral arbitrator appointed in accordance with ICC
Rules. Both parties undertake to use their reasonable commercial efforts to have
such arbitration carried out expeditiously.
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(b) Any dispute concerning the rights and remedies under this
Agreement (other than the determination whether an Event of Default has
occurred) shall be subject to the non-exclusive jurisdiction of any state or
federal court sitting in Seattle, King County, Washington. The parties
irrevocably waive to the fullest extent permitted by law any objection which it
may now or hereafter have to the laying of venue in any such action or
proceeding in any such forum, and hereby further irrevocably waive any claim
that any such forum is an inconvenient forum. Pledgor agrees that a final
judgment in any such action or proceeding shall be conclusive and may be
enforced in any other jurisdiction by suit on the judgment or in any other
manner provided by law. Nothing herein shall impair the right of Pledgee to
bring any action or proceeding against Pledgor or its property in the courts of
any other jurisdiction. EACH OF THE PARTIES FURTHER IRREVOCABLY WAIVES ALL RIGHT
TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON
CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY
OTHER AGREEMENT ENTERED INTO IN CONNECTION THEREWITH, ANY OF THE TRANSACTIONS
CONTEMPLATED THEREBY OR ANY OF THE ACTIONS OF ANY PARTY IN THE NEGOTIATION,
ADMINISTRATION, PERFORMANCE OR ENFORCEMENT THEREOF.
22. SUCCESSORS. This Agreement inures to the benefit of Pledgee and any of
his respective successors and assigns, and shall bind the successors and assigns
of Pledgor. Pledgor may not assign his rights and obligations hereunder without
the prior written consent of Pledgee.
23. ENTIRE AGREEMENT; AMENDMENT. This Agreement comprises the entire
agreement between Pledgor and Pledgee with respect to the pledge and may not be
amended or modified except in writing. No provision of this Agreement may be
waived except in writing and then only in the specific instance and for the
specific purpose for which given.
24. HEADINGS. The headings of the various provisions of this Agreement are
for convenience or reference only, do not constitute a part hereof, and shall
not affect the meaning or construction of any provision hereof.
[SIGNATURE PAGE FOLLOWS.]
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IN WITNESS WHEREOF, Pledgor has executed this Agreement as of the date and
year first above written.
PLEDGOR: [Click Here and Type]
----------------------------------------
Name:
Address:
----------------------------
----------------------------
Attn:
----------------------------
Telefax:
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SCHEDULES:
Schedule 1 Stock Certificate Representing Initial Shares of Pledged Stock
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EXHIBIT J
TERMINATION OF AGREEMENT
This TERMINATION OF [____________] AGREEMENT (this "Agreement"), dated as
of ____________, 2006, is made by and between [INSERT PARTY TO AGREEMENT]
("____________") and MAC Telecom Holdings SA, a 'societe anonyme' organized
under the laws of Belgium ("MTH"). [INSERT PARTY TO AGREEMENT] and MTH may each
be referred to herein as a "Party" and together as the "Parties."
WHEREAS, [INSERT PARTY TO AGREEMENT] and MTH are parties to that certain
[____________] Agreement, dated as of [INSERT DATE] (the "[____________]
Agreement");
WHEREAS, the sole shareholder of [INSERT PARTY TO AGREEMENT], among others,
has entered into the MTH Stock Purchase Agreement dated___________, 2006 (the
"Stock Purchase Agreement"), pursuant to which Clearwire Europe S.a x.x, a
Luxembourg limited liability company ("Clearwire Europe"), has agreed to
purchase all of the outstanding stock of MTH;
WHEREAS, pursuant to Section 7.2(h) of the Stock Purchase Agreement, the
Parties have agreed to enter into this Agreement; and
WHEREAS, entry into this Agreement is a material inducement to Clearwire
Europe to enter into the Stock Purchase Agreement.
NOW, THEREFORE, in consideration of the promises and the mutual covenants,
conditions, and agreements hereinafter set forth, the Parties agree as follows:
6. Mutual Release of Claims. Effective as of the date of the closing of the
Stock Purchase Agreement (the "Closing"), and subject thereto, each of MTH
and [INSERT PARTY TO AGREEMENT], for themselves and each of their
respective subsidiaries, and their respective predecessors, parents,
subsidiaries, divisions, related or affiliated companies, officers,
directors, shareholders, members, partners, employees, heirs, successors,
assigns, representatives, agents and counsel, hereby releases, dismisses
and forever discharges the other Party and each of its respective
subsidiaries, and their respective predecessors, parents, subsidiaries,
divisions, related or affiliated companies, officers, directors,
shareholders, members, partners, employees, heirs, successors, assigns,
representatives, agents and counsel from any and all claims (including
claims for attorneys' fees), demands, damages, suits, proceedings, actions,
arbitrations and/or causes of action of any kind and every description,
whether known or unknown, arising from or relating to any fact or matter on
or prior to the Closing relating to the [____________] Agreement.
7. Consent to Termination of the [____________] Agreement. Effective as of the
Closing, and subject thereto, the Parties hereby consent to the termination
of the [____________] Agreement. From and after the Closing the
[____________] Agreement shall be null and void and have no further force
or effect.
8. No Further Payments. [INSERT PARTY TO AGREEMENT] hereby acknowledges that
it no longer has any claims for outstanding payments from MTH under the
[____________]Agreement.
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9. Entire Agreement. This Agreement constitutes the entire agreement of the
Parties relating to the subject matter of this Agreement. There are no
promises, terms, conditions, obligations, or warranties other than those
contained in this Agreement. This Agreement supersedes all prior
communications, representations, or agreements, verbal or written, among
the Parties relating to the subject matter of this Agreement. This
Agreement may not be amended except in writing executed by the Parties and
approved by Clearwire Europe. Clearwire Europe is an intended beneficiary
of this Agreement.
10. Miscellaneous. This Agreement (a) shall be governed by and in accordance
with the internal laws of Belgium, without regard to the principles of
conflicts of law thereof; (b) shall be binding upon and inure to the
benefit of the Parties hereto and their respective successors and permitted
assigns; and (c) may be executed and delivered (including by facsimile
transaction) in one or more counterparts, each of which shall be deemed an
original, but all of which together shall constitute one and the same
instrument.
[The remainder of this page is intentionally left blank.
The signature page follows.]
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[PARTY TO AGREEMENT]
BY:
---------------------------------
---------------------------------
Print Name
ITS:
--------------------------------
MAC TELECOM HOLDINGS SA
BY:
---------------------------------
---------------------------------
Print Name
ITS:
--------------------------------
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