EXHIBIT 4.6
EXECUTION VERSION
INTEL/CLEARWIRE CONFIDENTIAL
INVESTOR RIGHTS AGREEMENT
THIS INVESTOR RIGHTS AGREEMENT (the "AGREEMENT") dated as of August 29,
2006, is by and among Clearwire Corporation, a Delaware corporation (the
"COMPANY"), Intel Pacific, Inc., a Delaware corporation ("INTEL"), and Motorola,
Inc., a Delaware corporation ("MOTOROLA") (Intel and Motorola individually, an
"INVESTOR," and collectively, the "INVESTORS").
WHEREAS, the Investors have acquired and hold as of the date of this
Agreement shares of Class A common stock, $0.0001 par value (the "CLASS A COMMON
STOCK"), and Class B common stock, $0.0001 par value (the "CLASS B COMMON
STOCK"), of the Company, including those shares purchased by Intel under that
certain Common Stock Purchase Agreement dated as of June 28, 2006 (the "STOCK
PURCHASE AGREEMENT"), and by Motorola under that certain Subscription Agreement
dated as of June 30, 2006, or other securities convertible into shares of Class
A Common Stock; and
WHEREAS, the Company wishes to grant certain registration rights with
respect to the shares of stock of the Company issued to the Investors, as
provided further herein.
NOW THEREFORE, in consideration of the promises herein contained and other
good and valuable consideration, the parties hereto agree as follows:
1. Definitions. As used in this Agreement:
(i) the term "ACT" means the Securities Act of 1933, as amended, and
the rules and regulations thereunder;
(ii) the term "AFFILIATE" of any specified Person means any other
Person directly or indirectly controlling or controlled by or under direct or
indirect common control with such specified Person. For the purposes of this
definition, "CONTROL" (including, with correlative meanings, the terms
"CONTROLLING," "CONTROLLED BY" and "UNDER COMMON CONTROL WITH"), as used with
respect to any Person shall mean the possession, directly or indirectly, of the
power to direct or cause the direction of the management or policies of such
Person whether through the ownership of voting securities or by agreement or
otherwise.
(iii) the term "COMMISSION" means the Securities and Exchange
Commission or any other federal agency at the time administering the Act;
(iv) the term "COMMON STOCK" means any and all classes of the
Company's common stock as authorized pursuant to the Company's Amended Restated
Certificate of Incorporation, as may be amended or restated from time to time;
(v) the term "EXCHANGE ACT" means the Securities Exchange Act of 1934,
as amended, and the rules and regulations thereunder;
(vi) the term "HOLDER" means an Investor, as long as such Investor
owns Registrable Securities, any Affiliate of an Investor, and any Permitted
Transferee of an Investor to whom the registration rights conferred by this
Agreement have been transferred in compliance with Section 14;
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(vii) the terms "REGISTER," "REGISTERED" and "REGISTRATION" mean a
registration effected by preparing and filing a registration statement in
compliance with the Act (and any post-effective amendments filed or required to
be filed) and the declaration or ordering of effectiveness of such registration
statement;
(viii) the term "PERMITTED TRANSFEREE" shall mean (i) any Affiliate of
an Investor or other Holder, (ii) any Person who acquires at least 5,000,000
shares of Registrable Securities from an Investor or other Holder;
(ix) the term "PERSON" means an individual, corporation, limited
liability company, trust, partnership, general partnership, or other entity;
(x) the term "REGISTRABLE SECURITIES" means (A) any Class A Common
Stock, (B) any shares of Class A Common Stock issuable upon conversion of any
Class B Common Stock of the Company, and (C) any Common Stock of the Company
issued as a dividend or other distribution with respect to, or in exchange for
or in replacement of, the shares of Class A Common Stock or Class B Common
Stock, in each case, held by any stockholder of the Company from time to time,
including the Holders;
(xi) the term "REGISTRATION EXPENSES" means all third-party expenses
incurred by the Company in compliance with Section 2 and Section 3 hereof,
including, without limitation, all registration and filing fees, printing
expenses, accounting fees and expenses, fees and disbursements of counsel for
the Company, the underwriters and one special counsel for the selling Holders,
if any, blue sky fees and expenses and the third-party expenses of any special
audits incident to or required by any such registration (but excluding
underwriters' and brokers' discounts and commissions);
(xii) the term "WARRANT HOLDERS REGISTRATION RIGHTS AGREEMENT" means
that certain Registration Rights Agreement, dated as of August 5, 2005, by and
among the Company and the holders of warrants to acquire shares of the Company's
common stock who are parties thereto, as it exists on the date hereof; and
(xii) the term "WARRANT HOLDERS SHELF REGISTRATION" means a
registration of the Company's securities effected pursuant to Section 2.1 of the
Warrant Holders Registration Rights Agreement.
2. Company Registration.
(a) Right to Register. Whenever the Company proposes to register any
of its Common Stock under the Act, whether for its own account or for the
account of others (other than (i) a registration relating solely to employee
benefit plans, (ii) a registration relating to a corporate reorganization or
other transaction covered by Rule 145 under the Act, (iii) a registration on any
form that does not include substantially the same information as would be
required to be included in a registration statement covering the sale of the
Registrable Securities, or (iv) a registration in which the only Common Stock
being registered is Common Stock issuable upon conversion of debt securities
that are also being registered) and the registration form to be used may be used
for the registration of Registrable Securities (a "PIGGYBACK REGISTRATION"), the
Company will: (a) give prompt written notice thereof to each Holder (which shall
include a list of the jurisdictions in
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which the Company intends to attempt to qualify such securities under the
applicable blue sky or other state securities laws) and (b) upon the written
request of a Holder given within twenty (20) days after mailing of such notice
by the Company, the Company shall, subject to the provisions of this Section 2,
use commercially reasonable efforts to cause to be registered under the Act all
of the Registrable Securities that the Holder has requested to be registered.
(b) Right to Terminate Registration. The Company shall have the right
to terminate, withdraw or delay any registration initiated by it under this
Section 2 prior to the effectiveness of such registration whether or not any
Holder has elected to include securities in such registration. The Company shall
give written notice of such determination to each Holder that has elected to
include securities in such registration and, in the case of a determination to
terminate or withdraw the registration statement, the Company shall be relieved
of its obligation to register any Registrable Securities in connection with such
registration statement, and in the case of a determination to delay
effectiveness, the Company shall be permitted to delay effectiveness for any
period. The expenses of such terminated, withdrawn or delayed registration shall
be borne by the Company in accordance with Section 3(a)(iv).
(c) Priority on Registrations. Each Holder acknowledges and agrees
that its rights under this Section 2 shall be subject to cutback provisions
imposed by a managing underwriter under Section 2(d). If, as a result of the
cutback provisions of the preceding sentence, a Holder is not entitled to
include all of its requested Registrable Shares in such registration, then the
Holder may elect to withdraw its request to include any or all of its
Registrable Shares in such registration.
(d) Underwritten Offerings. In the event of an underwritten offering,
the Company and each Holder shall make such arrangements with the underwriters
so that such Holder may participate in the offering on the same terms as the
Company and any other party selling securities in such offering. The Company
shall not be required under this Section 2 to include any of a Holder's
securities in such underwriting unless such Holder accepts the terms of the
underwriting as agreed upon between the Company and the underwriters selected by
it (or by other persons entitled to select the underwriters) and enters into an
underwriting agreement in customary form with an underwriter or underwriters
selected by the Company, and then only in such quantity as the underwriters
determine in their sole discretion will not jeopardize the success of the
offering by the Company. Notwithstanding any other provision of this Agreement,
if the managing underwriter(s) determine(s) in good faith that marketing factors
require a limitation of the number of shares to be underwritten, then the
managing underwriter(s) may exclude shares (including Registrable Securities)
from the registration and the underwriting, and the number of shares that may be
included in the registration and the underwriting shall be allocated, (i) first,
to the Company for securities that the Company proposes to register for its own
account; (ii) second, to any stockholders of the Company who exercised a
contractual right to demand that such registration statement be filed, on a pari
passu basis based upon the Registrable Securities held by such stockholders;
(iii) third, to each of the Holders requesting inclusion of their Registrable
Securities in such registration statement and to any other holders of incidental
or "piggyback" registration rights requesting inclusion of their Registrable
Securities in such registration statement, on a pari passu basis based upon the
Registrable Securities held by such holders; and (v) fourth, to other securities
of the Company to be registered on behalf of any other holder. Any Registrable
Securities excluded and withdrawn from such underwriting shall be withdrawn from
the
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registration. Notwithstanding the foregoing, each Holder acknowledges and agrees
that the allocation provisions set forth in this Section 2(d) are subject to
adjustment in certain circumstances to allow the Company to comply with its
obligations to the holders of Transfer Restricted Securities under the Warrant
Holders Registration Rights Agreement; provided, however, that to the extent
that the cutback provisions set forth in Section 2.2b of the Warrant Holders
Registration Rights Agreement have the effect of limiting the number of the
Holders' Registrable Securities included in any underwritten Piggyback
Registration in a manner that is disproportionate to the other holders of
incidental or "piggyback" registration rights (each, a "LIMITED PIGGYBACK
REGISTRATION"), any Registrable Securities that may be included in any future
underwritten Piggyback Registration by holders of incidental or "piggyback"
registration rights shall be allocated first to the Holders until such time as
such Registrable Securities of the Holders requested to be included in the
Limited Piggyback Registration but not included as a result of the foregoing
have been included in such Piggyback Registration and, only thereafter, will the
remaining Registrable Securities available to be included in such Piggyback
Registration be allocated to the Holders and any other holders of incidental or
"piggyback" registration rights on a pari passu basis based upon the Registrable
Securities held by such holders. For any Holder which is a partnership or
corporation, the partners, retired partners and shareholders of such Holder, or
the estates and family members of any such partners and retired partners and any
trusts for the benefit of any of the foregoing persons shall be deemed to be a
single "Holder," and any pro rata reduction with respect to such "Holder" shall
be based upon the aggregate amount of shares carrying registration rights owned
by all Persons included in such "Holder," as defined in this sentence.
3. Demand and Form S-3 Registrations.
(a) Demand Registration.
(i) Request by Holders. If the Company shall receive at any time
after six (6) months after the effective date of the Company's initial public
offering of its securities pursuant to a registration filed under the Act, a
written request from the Holders of a majority of the Registrable Securities
then outstanding that the Company file a registration statement under the Act
covering the registration of Registrable Securities pursuant to this Section
3(a), then the Company shall, within twenty (20) days after the receipt of such
written request, give written notice of such request (the "REQUEST NOTICE") to
all Holders, and effect, as soon as practicable, the registration and all such
qualifications and compliances as may be so requested and as would permit or
facilitate the sale and distribution of all or such portion of the Registrable
Securities as are specified in such request and any additional requests by other
Holders received by the Company within twenty (20) days after receipt of the
Request Notice, subject only to the limitations of this Section 3(a); provided
that the Registrable Securities requested to be registered pursuant to such
request must have an anticipated aggregate price to the public (before any
underwriting discounts and commissions) of not less than Twenty-Five Million
Dollars ($25,000,000).
(ii) Maximum Number of Demand Registrations. Notwithstanding the
limitations set forth in Section 3(a)(i), and in addition to the rights set
forth therein, the Company is obligated pursuant to this Section 3(a) to effect
one (1) demand registration for Intel and its Permitted Transferees and one (1)
demand registration for Motorola and its Permitted Transferees; provided,
however, if all of the Holders' Registrable Securities that were requested to be
included in a registration pursuant to this Section 3(a) were not included in
such registration
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as a result of cutback provisions imposed by a managing underwriter pursuant to
Section 3(c) or otherwise, then such registration shall not count against Holder
as a demand registration under this Section 3(a)(ii) and the Company shall be
obligated to effect one (1) additional registration pursuant to this Section
3(a).
(iii) Deferral. Notwithstanding the foregoing, if the Company
shall furnish to Holders requesting the filing of a registration statement
pursuant to this Section 3(a), a certificate signed by the President or Chief
Executive Officer of the Company stating that, in the good faith judgment of the
Board of Directors of the Company, it would be seriously detrimental to the
Company and its stockholders for such registration statement to be filed at such
time and it is therefore essential to defer the filing of such registration
statement, then the Company shall have the right to defer such filing for a
period of not more than ninety (90) days after receipt of the request of the
Initiating Holders; provided, however, that the Company may not utilize this
right more than once in any twelve (12) month period.
(iv) Expenses for Withdrawn Registrations. Notwithstanding the
provisions of Section 5(a), the Company shall not be required to pay for any
expenses of any registration proceeding begun pursuant to this Section 3(a) if
the registration request is subsequently withdrawn at the request of the Holders
of a majority of the Registrable Securities to be registered, unless the Holders
of a majority of the Registrable Securities then outstanding agree to forfeit
their right to the demand registration pursuant to this Section 3(a) (in which
case such right shall be forfeited by all Holders of Registrable Securities);
provided, further, however, that if at the time of such withdrawal, the Holders
have learned of a material adverse change in the condition, business, or
prospects of the Company not actually known to the Holders at the time of their
request for such registration and have withdrawn their request for registration
with reasonable promptness after learning of such material adverse change, then
the Holders shall not be required to pay any of such expenses and shall retain
their demand registration right pursuant to this Section 3(a) notwithstanding
such withdrawal.
(b) Form S-3 Registration.
(i) After the Company is eligible to register Registrable
Securities on Form S-3, each Holder shall have the right to demand the Company
effect a registration with respect to all or a part of its Registrable
Securities on Form S-3 and any related qualification or compliance. Any such
demand shall not be considered a demand registration request pursuant to Section
3(a). Upon receipt of written request, the Company shall, as soon as
practicable, (i) give written notice of the proposed registration to all other
Holders, and any related qualification and compliance, and (ii) effect such
registration and all such qualifications and compliances as may be so requested
and as would permit or facilitate the sale and distribution of all or such
portion of such Holder's Registrable Securities as are specified in such request
together with the Registrable Securities requested to be included by any other
Holders who notify the Company in writing within 10 business days after receipt
of such notice from the Company; provided, however, that the Company shall not
be obligated to effect any such registration, qualification or compliance
pursuant to this Section 3(b):
(A) if Form S-3 is not available for such offering by the
Holder;
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(B) if the Holder, together with the holders of any other
securities of the Company entitled to inclusion in such registration, propose to
sell Registrable Securities and such other securities (if any) at an aggregate
price to the public of less than Five Million Dollars ($5,000,000);
(C) if the Company shall furnish to the Holder a certificate
signed by the President or Chief Executive Officer of the Company stating that,
in the good faith judgment of the Board of Directors of the Company, it would be
seriously detrimental to the Company and its shareholders for such Form S-3
Registration to be effected at such time, in which event the Company shall have
the right to defer the filing of the Form S-3 registration statement no more
than once during any twelve (12) month period for a period of not more than one
hundred eighty (180) days following receipt of the request of the Holder under
this Section 3(b);
(D) if the Company has, within the 12 month period preceding
the date of such request, already effected one (1) registration on Form S-3
pursuant to this Section 3(b); provided, however, if all of the Holders'
Registrable Securities requested to be included in the prior registration were
not included in the prior registration as a result of cutback provisions imposed
by a managing underwriter pursuant to Section 3(c) below, then the Holders shall
have the right to demand one (1) additional registration on Form S-3 during such
12-month period; or
(E) in any particular jurisdiction in which the Company
would be required to qualify to do business or to execute a general consent to
service of process in effecting such registration, qualification or compliance.
(c) Underwriting. If the Holders initiating the registration request
under this Section 3 (the "INITIATING HOLDERS") intend to distribute the
Registrable Securities covered by their request by means of an underwriting,
then they shall so advise the Company as a part of its request made pursuant to
this Section 3 and the Company shall include such information in the notices
referred to in Section 3(a)(i) or Section 3(b)(i), as applicable. In such event,
the right of any Holder to include his, her or its Registrable Securities in
such registration shall be conditioned upon such Holder's participation in such
underwriting and the inclusion of such Holder's Registrable Securities in the
underwriting (unless otherwise mutually agreed by a majority in interest of the
Initiating Holders and such Holder) to the extent provided herein. All Holders
proposing to distribute their securities through such underwriting shall enter
into an underwriting agreement in customary form with the managing underwriter
or underwriters selected for such underwriting by the Company and approved by a
majority in interest of the Initiating Holders. Notwithstanding any other
provision of Section 3, if the underwriter(s) advise(s) the Company in writing
that marketing factors require a limitation of the number of securities to be
underwritten then the Company shall so advise all Holders of Registrable
Securities that would otherwise be registered and underwritten pursuant hereto,
and the number of Registrable Securities that may be included in the
underwriting shall be reduced as required by the underwriter(s) and allocated
(i) first, to each of the Holders who exercised a contractual right, pursuant to
Section 3 to demand that such registration statement be filed, on a pari passu
basis based upon the Registrable Securities held by such Holders; (ii) second,
to any other holders of incidental or "piggyback" registration rights requesting
inclusion of their Registrable Securities in such registration statement, on a
pari passu basis based upon the Registrable Securities held by such holders; and
(iii) third, other securities of the Company to be registered on behalf of any
other holder. If, as a result of the
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cutback provisions of the preceding sentence, a Holder is not entitled to
include all of its requested Registrable Shares in such registration, then the
Holder may elect to withdraw its request to include any or all of its
Registrable Shares in such registration. Any Registrable Securities excluded and
withdrawn from such underwriting shall be withdrawn from the registration.
Notwithstanding the foregoing, each Holder acknowledges and agrees that (a) the
allocation provisions set forth in this Section 3(c) are subject to adjustment
in certain circumstances to allow the Company to comply with its obligations to
the holders of Transfer Restricted Securities under the Warrant Holders
Registration Rights Agreement, and (b) the obligation of the Company to effect a
registration pursuant to Section 3 is subject to the Company's covenant under
Section 2.1 of the Warrant Holders Registration Rights Agreement not to register
any securities for certain holders in advance of registering the Transfer
Restricted Securities pursuant to such agreement.
4. Registration Procedures. In the case of each registration effected by
the Company pursuant to Section 2 or Section 3, the Company will use
commercially reasonable efforts to effect such registration, including:
(a) Prepare and file with the Commission a registration statement with
respect to such Registrable Securities and use commercially reasonable efforts
to cause such registration statement to become effective (provided that before
filing a registration statement or prospectus or any amendments or supplements
thereto, the Company shall furnish to the counsel selected by the Holders of a
majority of the Registrable Securities covered by such registration statement
copies of all such documents proposed to be filed, including each preliminary
prospectus, which documents shall be subject to the review and comment of such
counsel);
(b) Prepare and file with the Commission such amendments and
supplements to such registration statement and the prospectus used in connection
therewith as may be necessary to keep such registration statement effective for
a period of not less than thirty (30) days and comply with the provisions of the
Act with respect to the disposition of all securities covered by such
registration statement during such period in accordance with the intended
methods of disposition thereof by the Holders holding the securities covered by
the registration statement as set forth in such registration statement;
(c) Furnish to each Holder promptly, and in no event more than five
business days after the same is prepared and filed with the Commission, such
number of copies of such registration statement, each amendment and supplement
thereto, the prospectus included in such registration statement (including each
preliminary prospectus) and such other documents as such Holder may reasonably
request in order to facilitate the disposition of the Registrable Securities
owned by such Holder;
(d) Use reasonable efforts to register or qualify the Registrable
Securities covered by the registration statement under such other securities or
blue sky laws of such United States jurisdictions as the Holder thereof may
reasonably request and do any and all other acts and things that may be
reasonable necessary or advisable to enable such Holder to consummate the
disposition in such jurisdictions of the Registrable Securities owned by such
Holder, provided that the Company will not be required to (a) qualify generally
to do business in any jurisdiction where it would not otherwise be required to
qualify for this subparagraph, (b) subject itself to taxation in any such
jurisdiction or (c) consent to general service of process in any such
jurisdiction;
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(e) Notify each Holder promptly, but in no event more than two
business days after the occurrence of the event, at any time when a registration
statement under the Act that registers any of such Holder's Registrable
Securities is effective, of the happening of any event as a result of which the
prospectus included in such registration statement contains an untrue statement
of a material fact or omits any fact necessary to make the statements therein
not misleading, and, at the request of such Holder, the Company will prepare a
supplement or amendment to such prospectus so that, as thereafter delivered to
the purchasers of such Registrable Securities, such prospectus shall not contain
an untrue statement of a material fact or omit to state a fact necessary to make
the statements therein not misleading;
(f) Cause all such Registrable Securities to be listed on such
securities exchange or market on which the Company's Common Stock is then
listed; and
(g) Furnish, at a Holder's request, on the date that the Holder's
Registrable Securities are delivered to the underwriters for sale in connection
with a registration pursuant to this Agreement, if such securities are being
sold through underwriters, or, if such securities are not being sold through
underwriters, on the date that the registration statement with respect to such
securities becomes effective, (A) an opinion, dated such date, of the counsel
representing the Company for the purposes of such registration, in form and
substance as is customarily given to underwriters in an underwritten public
offering, addressed to the underwriters, if any, and to a Holder, if Holder
requests registration and (B) a letter dated such date, from the independent
certified public accountants of the Company, in form and substance as is
customarily given by independent certified public accountants to underwriters in
an underwritten public offering, addressed to the underwriters, if any.
5. Registration Expenses; Delay.
(a) Expenses of Company Registration. The Company shall pay (i) all of
the Registration Expenses and (ii) all transfer taxes and brokerage and
underwriters' discounts and commissions attributable to the securities being
sold by the Company. Each Holder shall pay all transfer taxes and brokerage and
underwriters' discounts and commissions attributable to the Registrable
Securities being sold by such Holder.
(b) Delay of Registration. No Holder shall have any right to obtain or
seek an injunction restraining or otherwise delaying any such registration as
the result of any controversy that might arise with respect to the
interpretation of this Agreement.
6. Requirement to Discontinue Disposition. Each Holder agrees that, upon
receipt of any notice from Company of the happening of any event of the kind
described in Section 4(e), such Holder will discontinue disposition of its
Registrable Securities pursuant to such registration statement until such
Holder's receipt of the copies of the supplemented or amended prospectus
contemplated by Section 4(e), or until such Holder is advised in writing by
Company that the use of the prospectus may be resumed, and has received copies
of any additional or supplemental filings that are incorporated by reference in
the prospectus, and, if so directed by the Company, such Holder will deliver to
the Company (at the Company's expense) all copies, other than permanent file
copies then in such Holder's possession, of the prospectus covering such
Registrable Securities which are current at the time of the receipt of such
notice.
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7. Information from Holder. It shall be a condition precedent to the
obligations of the Company to take any action pursuant to Section 2 or Section 3
with respect to a Holder's Registrable Securities that such Holder furnish to
the Company for inclusion in the specific registration statement (and any
prospectus included therein) such information regarding itself, the Registrable
Securities held by it, and the intended method of disposition of such securities
as shall be required to effect the registration of Holder's Registrable
Securities; provided that the use of such information shall be limited to the
specific registration statement (or any prospectus included therein) for which
it was provided and shall not be used in any summary or free writing prospectus.
8. Indemnification.
(a) The Company agrees to indemnify and hold harmless, to the extent
permitted by law, each Holder, its directors and officers and each person who
controls the Company (within the meaning of the Act) and any of such person's
agents or representatives, its legal counsel and accountants, any underwriter
and any controlling person of such underwriter, and its legal counsel against
all losses, liabilities, claims, damages and expenses ("LOSSES") caused by (A)
any untrue or alleged untrue statement of material fact contained in any
registration statement in which such Holder is participating, or any prospectus,
preliminary prospectus, summary or free writing prospectus, or any amendment
thereof or supplement to any of the foregoing or any omission or alleged
omission of material fact required to be stated therein or necessary to make the
statements therein not misleading, except insofar as the same are caused by or
contained in any information furnished in writing to the Company or any
underwriter by such Holder expressly for use therein or results from such
Holder's failure to deliver a copy of the registration statement or prospectus
or any amendments or supplements thereto after the Company has furnished such
Holder with the number of copies of the same requested by such Holder or (B) any
violation or alleged violation by the Company of the Act, the Exchange Act, any
state securities laws or any rule or regulation promulgated under the Act, the
Exchange Act or any state securities laws in connection with the sale of
securities by such Holder pursuant to any registration statement in which such
Holder is participating, and the Company, in each case, will reimburse each such
Holder, officer, director, controlling person or other aforementioned person for
any legal or other expenses reasonably incurred by them in connection with
investigating or defending any such losses, liabilities, claims, damages or
expenses or action as such expenses are incurred; provided, however, that the
indemnity agreement contained in this Section 8 shall not apply to amounts paid
in settlement of any such Losses if such settlement is effected without the
consent of the Company (which consent shall not be unreasonably withheld).
(b) Each Holder, severally and not jointly, will indemnify, to the
extent permitted by law, the Company, its directors and officers and each person
who controls Company (within the meaning of the Act) and any of such person's
agents or representatives, its legal counsel and accountants, any underwriter
and any controlling person of such underwriter, against any Losses resulting
from (A) any untrue or alleged untrue statement of material fact contained in
the registration statement, prospectus or preliminary prospectus or any
amendment thereof or supplement thereto or any omission or alleged omission of a
material fact required to be stated therein or necessary to make the statements
therein not misleading, but only to the extent that such untrue statement or
omission is contained in any information or affidavit so furnished in writing by
such Holder expressly for use in such registration statement, or (B) such
Holder's failure to deliver a
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copy of the registration statement or prospectus or any amendments or
supplements thereto after the Company has furnished such Holder with the number
of copies of the same requested by such Holder; and each such Holder will
reimburse any person intended to be indemnified pursuant to this Section 8(b)
for any legal or other expenses reasonably incurred by such person in connection
with investigating or defending any such losses, liabilities, claims, damages or
expenses or action as such expenses are incurred provided, however, that (i) the
indemnity agreement contained in this Section 8(b) shall not apply to amounts
paid in settlement of any Losses if such settlement is made without the consent
of the Holder, which consent shall not be unreasonably withheld, and (ii) the
obligations of such Holders hereunder shall be limited to an amount equal to the
net proceeds to each such Holder from the sale of Registrable Securities in the
transaction giving rise to the Losses.
(c) The indemnification provided for under this Agreement will remain
in full force and effect regardless of any investigation made by or on behalf of
the Indemnified Party (as defined herein) or any officer, director, or
controlling person of such Indemnified Party and will survive the transfer of
Registrable Securities. The Indemnifying Party also agrees to make such
provisions, as are reasonably requested by an Indemnified Party, for
contributions (in such proportion as is appropriate to reflect the relative
fault of the Indemnifying Party on the one hand and of the Indemnified Party on
the other in connection with the actions that gave rise to any Losses) to such
party in the event such Indemnifying Party's indemnification is unavailable for
any reason; provided, however, that in no event shall any contribution by a
Holder under this Section 8(c) exceed the net proceeds to such Holder from the
sale of Registrable Securities in the transaction giving rise to the Losses.
(d) Each party entitled to indemnification under this Section 8 (the
"INDEMNIFIED PARTY") shall give notice to the party required to provide
indemnification (the "INDEMNIFYING PARTY") promptly after such Indemnified Party
has actual knowledge of any claim as to which indemnity may be sought, and shall
permit the Indemnifying Party to assume the defense of any such claim or any
litigation resulting therefrom; provided that counsel for the Indemnifying
Party, who shall conduct the defense of such claim or any litigation resulting
therefrom, shall be approved by the Indemnified Party (whose approval shall not
unreasonably be withheld) and the Indemnified Party may participate in such
defense at the Indemnified Party's expense (unless the Indemnified Party shall
have reasonably concluded that there may be a conflict of interest between the
Indemnifying Party and the Indemnified Party in such action, in which case the
fees and expenses of counsel shall be at the expense of the Indemnifying Party),
and provided further that the failure of any Indemnified Party to give notice as
provided herein shall not relieve the Indemnifying Party of its obligations
under this Section 8 unless the Indemnifying Party is materially prejudiced
thereby. No Indemnifying Party, in the defense of any such claim or litigation,
shall, except with the consent of the Indemnified Party, consent to entry of any
judgment or enter into any settlement which does not include as an unconditional
term thereof the giving by the claimant or plaintiff to such Indemnified Party
of a release from all liability in respect to such claim or litigation. The
Indemnified Party shall furnish such information regarding itself or the claim
in question as an Indemnifying Party may reasonably request in writing and as
shall be reasonably required in connection with the defense of such claim and
litigation resulting therefrom.
(e) If the indemnification provided for in this Section 8 is held by a
court of competent jurisdiction to be unavailable to an Indemnified Party with
respect to any Losses, then
10
the Indemnifying Party, in lieu of indemnifying such Indemnified Party
hereunder, shall contribute to the amount paid or payable by such Indemnified
Party as a result of such loss, liability, claim, damage or expense, in such
proportion as is appropriate to reflect the relative fault of the Indemnifying
Party on the one hand and of the Indemnified Party on the other, in connection
with the statements or omissions which resulted in Losses, as well as any other
relevant equitable considerations; provided, however, that in no event shall any
contribution by a Holder under this Section 8(e) exceed the net proceeds to such
Holder from the sale of Registrable Securities in the transaction giving rise to
the Losses. The relative fault of the Indemnifying Party and of the Indemnified
Party shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission to state a
material fact relates to information supplied by the Indemnifying Party or by
the Indemnified Party and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
(f) Notwithstanding the foregoing, to the extent that the provisions
on indemnification and contribution contained in the underwriting agreement
entered into in connection with any underwritten public offering contemplated by
this Agreement are in conflict with the foregoing provisions, the provisions in
such underwriting agreement shall be controlling.
(g) The obligations of the Company and Holders under this Section 8
shall survive the completion of any offering of Registrable Securities in a
registration statement under Section 2 or Section 3 and otherwise.
9. Rule 144 Reporting. With a view to making available the benefits of
certain rules and regulations of the Commission which may permit the sale of
restricted securities to the public without registration the Company agrees to:
(a) keep public information available as those terms are understood
and defined in Rule 144, at all times from and after ninety (90) days following
the effective date of the first registration under the Act filed by the Company
for an offering of its Common Stock to the general public;
(b) file with the Commission all reports and other documents required
of the Company under the Act and the Exchange Act at any time after it has
become subject to such reporting requirements; and
(c) so long as any Holder owns any Registrable Securities, furnish to
such Holder upon request, a written statement by the Company as to its
compliance with the reporting requirements of Rule 144 (at any time from and
after ninety (90) days following the effective date of the first registration
statement filed by the Company for an offering of its securities to the general
public), and of the Act and the Exchange Act (at any time after it has become
subject to such reporting requirements), a copy of the most recent annual or
quarterly report of the Company, and such other reports and documents so filed
as such Holder may reasonably request in availing itself of any rule or
regulation of the Commission allowing such Holder to sell any such securities
without registration.
10. "Market Stand-off" Agreement. If requested by the Company or an
underwriter of capital stock or other securities of the Company in connection
with the Company's initial public
11
offering, each Holder agrees not to sell or otherwise transfer or dispose of any
capital stock or other securities of the Company, excluding capital stock
acquired in the Company's initial public offering, held by such Holder during
the 180 day period following such initial public offering, provided that all
directors and officers of the Company and stockholders owning at least 2% of the
Company's capital stock agree to the same transfer restrictions. Any provisions
allowing for discretionary waivers or termination of the transfer restrictions
in similar agreements by and among the Company and any of the Company's
directors, officers, shareholders or representatives of the underwriters shall
also be offered to the Holders. If requested by a managing underwriter in
connection with the Company's initial public offering, such Holder shall execute
a separate agreement to the foregoing effect. The Company may impose
stop-transfer instructions with respect to the shares (or securities) subject to
the foregoing restriction until the end of such period.
11. Rights Granted to Other Investors.
(a) Following the date hereof, if any Person, whether an
Affiliate of the Company or otherwise, receives, in connection with such
Person's equity investment in the Company which is (a) made substantially
concurrent with the closing under the Stock Purchase Agreement or (b) as of the
date of such investment, of a size substantially similar to or less than the
purchase by Intel under its Stock Purchase Agreement, rights or privileges more
favorable, or obligations that are less burdensome, than those received by, or
imposed upon, Intel under its Stock Purchase Agreement, this Agreement, the
Stockholders Agreement dated March 16, 2004 (as amended from time to time), the
Joinder in and Amendment to Stockholders Agreement dated as of the date hereof,
the Side Letter Agreement dated June 28, 2006 entered into by the Company and
Intel and the Voting Agreement dated as of the date hereof (collectively, the
"FINANCING DOCUMENTS"), Intel will have the option to either retain the set of
rights, privileges and obligations that it receives pursuant to the Financing
Documents, or to elect to forego the rights, privileges and obligations provided
in the Financing Documents in exchange for the rights, privileges and
obligations provided in the Financing Documents in exchange for the rights,
privileges and obligations provided to such other Person in connection with such
Person's equity investment. In no event will the provisions of this Section
11(a), (i) entitle Intel to receive any adjustment to the purchase price being
paid by it under its Stock Purchase Agreement or the type of securities subject
to the other investment, (ii) affect Intel's right to elect members to the
Company's board of directors, (iii) affect Intel's right to appoint additional
observers, or (iv) entitle Intel to any antidilution adjustments other than as
set forth in the Financing Documents. For purposes hereof, "SUBSTANTIALLY
SIMILAR" shall mean an equity investment which is either (y) on a post-money
fully diluted basis, is within five percentage points of the full diluted
ownership percentage of the Company represented by the Class A Common Stock and
Class B Common Stock held by Intel or (z) is of an amount not greater than $630
million.
(a) This Section 11(a) will terminate upon the closing of a firmly
underwritten public offering of any of the Common Stock.
(b) The Company shall not grant any registration rights relating to
its securities after the date hereof without the written consent of the
Investors holding a majority of the Registrable Securities held by the Investors
unless such rights are subordinate to or pari passu with the rights of the
Investors under this Agreement.
12. Termination. The registration rights set forth in this Agreement shall
terminate and not be available to each Holder on the earlier of (i) the date
that the Registrable Securities then owned by such Holder can be sold without
restriction in any 90-day period pursuant to Rule 144 under the Act and (ii) the
date that is five (5) years following the consummation of the Company's initial
public offering of its Common Stock. In addition, the registration rights set
forth in this Agreement shall terminate upon the transfer or assignment of all
of the Registrable Securities held by all Holders to parties who are not
Permitted Transferees. Upon termination pursuant to this Section 12 the Company
shall no longer be obligated to provide notice of a proposed registration to
such Holder.
13. Notices. All communications provided for hereunder shall be sent by
first-class mail or facsimile and (a) if addressed to a Holder, addressed to the
Holder at the address or fax number set forth below such Holder's signature, or
at such other address or fax number as such Holder shall have furnished to the
Company in writing or (b) if addressed to the Company, to the address or fax
number set forth below the Company's signature or at such other address or fax
number, or to the attention of such other officer, as the Company shall have
furnished to Holder in writing. Notices sent by first-class mail shall be deemed
received three days after the date of deposit of such notice in the United
States mail. Notices sent by facsimile shall be deemed received upon receipt by
the notified party's facsimile machine.
14. No Assignment. This Agreement is personal to each Investor and shall
not be assignable, by operation of law or otherwise to any third party, except
as set forth herein. Notwithstanding the foregoing, any Permitted Transferee of
an Investor shall be entitled to the rights granted hereunder, provided that the
Company is given written notice at the time of said
12
transfer or assignment identifying the name and address of the Permitted
Transferee and that the Permitted Transferee assumes in writing the obligations
of the Investor under this Agreement.
15. Descriptive Headings. The descriptive headings of the several sections
and paragraphs of this Agreement are inserted for reference only and shall not
limit or otherwise affect the meaning hereof.
16. Governing Law. This Agreement shall be construed and enforced in
accordance with, and the rights of the parties shall be governed by, the laws of
the State of Delaware.
17. No Inconsistent Agreements. The Company will not on or after the date
of this Agreement enter into any agreement with respect to its securities that
conflicts with or would limit the rights granted to the Holders in this
Agreement or otherwise conflicts with the provisions hereof.
18. 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 upon the written
consent of the Company and each Investor. 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 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.
19. 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
IN WITNESS WHEREOF, the parties have caused this agreement to be executed
and delivered as of the date first above written.
COMPANY:
CLEARWIRE CORPORATION Address:
0000 Xxxx Xxxxxxxxxx Xxxx. XX, Xxxxx 000
Xxxxxxxx, XX 00000
By: /s/ Xxxxxxxx X. Xxxxx Facsimile No: (000) 000-0000
--------------------------------- Attn: Xxxxxx Xxxxxx, General Counsel
Name: Xxxxxxxx X. Xxxxx
Title: Co-President & Co-CEO
INVESTORS:
INTEL PACIFIC, INC. Address:
c/o Intel Corporation
0000 Xxxxxxx Xxxxxxx Xxxx., XX0-00
By: /s/ Arvind Sodhari Xxxxx Xxxxx, XX 00000-0000
--------------------------------- Attn: Intel Capital Portfolio Manager
Name: Arvind Sodhari Fax Number: (000) 000-0000
Title: President
MOTOROLA, INC. Address:
0000 X. Xxxxx Xxxxx
Xxxxxxxxx Xxxxxxx, XX 00000
By: /s/ Xxx XxXxxxxx Facsimile No: 000-000-0000
--------------------------------- Attn: Xxxxx Xxxxxxx
Name: Xxx XxXxxxxx
Title: Corporate VP With a copy to:
0000 Xxxx Xxxxxxxxx Xxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Facsimile No: (000) 000-0000
Attn: General Counsel
and
Winston & Xxxxxx LLP
00 Xxxx Xxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxx X. Xxxxx, Esq.
Fax: (000) 000-0000
[SIGNATURE PAGE TO CLEARWIRE INVESTOR RIGHTS AGREEMENT]
