Exhibit 10.2
EXHIBIT A
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (this "Agreement") is entered
into as of ______ __, 1999 by and among Nextel Communications, Inc., a Delaware
corporation (the "Issuer"), and Microsoft Corporation, a Washington corporation
("Buyer"). Capitalized terms that are used but not otherwise defined herein are
defined in Section 1.1.
RECITALS
I. Pursuant to an Investment Agreement dated as of May 7, 1999,
by and between Issuer and Buyer (the "Investment Agreement"), Buyer is acquiring
from Issuer shares of Class A Common Stock, par value $.001 per share, of the
Issuer (the "New Shares").
A. The Issuer has agreed to provide certain registration rights to
Buyer.
A. The Issuer and Buyer are entering into this Agreement to set
forth the terms and conditions applicable to the grant and exercise of such
registration rights.
NOW, THEREFORE, for good and valuable consideration, the receipt
of which is hereby acknowledged by the parties hereto, the parties hereby agree
as follows:
Article 1
DEFINITIONS
1.1 As used in this Agreement, the following terms have the following
meanings:
(a) "Affiliate" means, as to any Person, another Person that directly
or indirectly through one or more intermediaries, Controls, is Controlled by or
is under common Control with, such Person. For the purposes of this definition,
"Control" when used with respect to any Person, means the possession, directly
or indirectly, of the power to direct or cause the direction of the management
and policies of such Person, whether through the ownership of voting securities,
by contract or otherwise; the terms "Controlling" and "Controlled" have meanings
correlative to the foregoing; provided, that the term "Controlled Affiliate" as
used herein includes any Affiliate of a Person that is, at the relevant time,
Controlled by such Person; and, provided further, that the Company and Buyer
will not be deemed to be direct or indirect Affiliates of each other, and that
officers and directors of Buyer will not be deemed to be Affiliates of Buyer to
the extent that an individual officer or director invests for his or her own
account or otherwise acts in his or her individual capacity and not in concert
with, and is not a participant in a group that includes, Buyer.
(b) "Cutback Registration" means any registration in which the
managing underwriter advises the Issuer that marketing factors require a
limitation of the number of Issuer Common Shares to be underwritten in such
registration.
(c) "Electing Holder" means any holder of Issuer Common Shares other
than holders of Registrable Securities (in their respective capacities as such),
who has the right to request inclusion of Issuer Common Shares held by such
holder in a registration.
(d) "Issuer Common Shares" means shares of Issuer's Class A Common
Stock, par value $.001 per share.
(e) "Person" means a corporation, association, joint venture,
partnership, limited liability company, trust, business, individual, government
or political subdivision thereof, or any governmental agency.
(f) "Piggyback Registration" means any registration of a sale or
resale of Issuer Common Shares which is not a Requested Registration (other than
a registration on Form S-4 or Form S-8).
(g) "Qualified Holder" means Buyer and permitted assignees hereunder;
provided that a person ceases to be a Qualified Holder (and all its rights
hereunder will automatically terminate) if (i) such person has held its New
Shares so that the holding period under Rule 144 of the Securities Act
applicable to such holder has been satisfied; and (ii) the number of New Shares
held by such person is less than 1% of the outstanding Issuer Common Shares.
(h) "Register", "registered" and "registration" refer to a
registration of Issuer Common Shares effected by preparing and filing a
registration statement in compliance with the Securities Act of 1933, as amended
("the Securities Act") and the declaration or ordering of the effectiveness of
such registration statement.
(i) "Registrable Securities" means New Shares held by a Qualified
Holder, but does not include (1) any other Issuer Common Shares or other
securities of the Issuer which may now or hereafter be held or acquired by any
Qualified Holder, (2) New Shares that have been sold pursuant to Rule 144
promulgated by the Securities and Exchange Commission (or any similar rule then
in force). If the New Shares have been exchanged, substituted or replaced by
other securities the new securities are not New Shares and are not Registrable
Securities.
(j) "Requested Registration" means a registration requested by a
Qualified Holder pursuant to Section 2.2.
Article 2
REGISTRATION PROVISIONS
2.1 Piggyback Registration. If at any time, and from time to time, the
Issuer proposes to effect a Piggyback Registration for its account or for the
account of a security holder or holders, the Issuer shall:
(a) promptly give to each Qualified Holder written notice thereof; and
(b) include in such registration, and in any underwriting involved
therein, all the Registrable Securities specified in a written request, made
within 15 days after receipt of such written notice from the Issuer, by any
Qualified Holder; provided that if such registration is a Cutback Registration,
then (i) if such registration is a primary registration on behalf of the Issuer,
the Issuer shall register in such registration (A) first, the Issuer Common
Shares and all other securities of the Issuer that the Issuer proposes to sell
in such registration, and (B) second, the Registrable Securities held by each
Qualified Holder and the Issuer Common Shares held by the Electing Holders in
accordance with the respective contractual rights of the holders of such
Registrable Securities and/or Issuer Common Shares, and (ii) if such
registration is a Piggyback Registration which is solely a secondary
registration on behalf of holders of Issuer Common Shares, the Issuer shall
register in such registration (A) first, the Issuer Common Shares proposed to be
sold by the holders of Issuer Common Shares requesting such registration (the
"Demanding Holders"), and (B) second, the Registrable Securities held by each
Qualified Holder and the Issuer Common Shares held by the Electing Holders,
other than the Demanding Holders if such Registrable Securities and/or Issuer
Common Shares are sought to be included in such registration pursuant to
contractual registration rights, in accordance with the respective contractual
rights of the holders of such Registrable Securities and/or Issuer Common
Shares.
2.2 Requested Registration.
(a) Request for Registration. If the restrictions on transfer of
Article 6 of the Investment Agreement no longer apply and the Issuer shall
receive a written request from any Qualified Holder(s) that the Issuer effect
any registration with respect to all or a part of the Registrable Securities
owned by such holder(s), the Issuer shall promptly give notice of such request
to each other Qualified Holder. Subject to Section 2.8, the Issuer shall
thereupon promptly use its best efforts diligently to effect such Requested
Registration and related qualifications and compliances (including, without
limitation, the execution of an undertaking to file post-effective amendments)
as may be requested by the Qualified Holder who made the original request and by
the Qualified Holders who make written request to the Issuer within 20 days
after the giving of the aforesaid notice by the Issuer ("Requesting Holders")
and as would permit or facilitate the sale and distribution of the Registrable
Securities as are specified in any such request; provided that the Issuer is not
obligated to take any action to effect a Requested Registration or any related
qualification or compliance pursuant to this Section 2.2:
(i) if, within 20 days after receipt of the initial request pursuant to this
Section 2.2, the Issuer elects to include in such registration Issuer
Common Shares for its own account, whereupon the Issuer shall notify each
Requesting Holder that it has elected to effect a Piggyback Registration
and shall thereafter diligently proceed to do so, including therein the
Registrable Securities as to which notice was given
by the Requesting Holders pursuant to this Section 2.2 but subject to the
limitations set forth in Section 2.1;
(ii) if the Requesting Holders do not request to include in such registration,
in the aggregate, at least $50 million Registrable Securities; or
(iii) if the Issuer has already effected five Requested Registrations on behalf
of Qualified Holder(s) (not more than one of which is to be on a Form S-1
or similar form), which Requested Registration has been declared or ordered
effective and which effectiveness has not been suspended or stopped by any
governmental or judicial authority.
If the Requested Registration is a Cutback Registration, the Issuer
shall register in such registration (1) first, the Registrable Securities which
any Requesting Holder seeks to include in such registration, on a pro rata basis
based upon the number of such Issuer Common Shares each Requesting Holder seeks
to include in such registration and (2) second, the Issuer Common Shares held by
each Electing Holder pursuant to contractual obligations of the Issuer in
accordance with the respective contractual rights of the holder of such Issuer
Common Shares.
(b) Underwriting. The distribution of Registrable Securities can be
effected once, but not more than once, by means of an underwriting. If the
Requesting Holders intend to distribute the Registrable Securities covered by
such request by means of an underwriting, such Requesting Holders shall so
advise the Issuer as a part of the request made pursuant to this Section 2.2
and, in such event, the Requesting Holders shall select an underwriter of their
choice, which choice shall be subject to the approval of the Board of Directors
of the Issuer, and which approval shall not be unreasonably withheld. The Issuer
and such Requesting Holders shall negotiate in good faith and enter into an
underwriting agreement in customary form with the underwriter or underwriters
selected for such underwriting. If a Requesting Holder disapproves of the terms
of the underwriting, such Requesting Holder may elect to withdraw therefrom by
written notice to the Issuer and the managing underwriter, and each of the
remaining Requesting Holders shall be entitled to increase the number of shares
being registered, to the extent permitted by the managing underwriter, in the
proportion which the number of shares of Registrable Securities being registered
by such Requesting Holder bears to the total number of shares being registered
by all such remaining Requesting Holders.
(c) Sales without an Underwriter. If the Requesting Holders intend to
distribute the Registrable Securities without an underwriter, sales of the New
Shares registered will, unless the Issuer otherwise agrees, be effected in
brokers transactions and the daily sales volume of all Registrable Securities
will not exceed the greater of (1) 30% of the average daily trading volume of
Issuer Common Shares on the NASDAQ/NMS during the 20 trading days immediately
preceding the effectiveness of the registration pursuant to which the
Registrable Securities are being sold, or (2) an aggregate sales price of
$36 million.
2.3 Expenses of Registration. Except as otherwise provided herein, all
expenses incurred by the Issuer in connection with any registration,
qualification, or compliance pursuant
to this Agreement, including, without limitation, all registration, filing and
qualification fees, printing expenses, fees and disbursements of counsel for the
Issuer, and the expenses of any audits required by such registration
(collectively, "Registration Expenses"), shall be borne by the Issuer. The
Issuer shall not be required to pay underwriters' fees, discounts or commissions
relating to Registrable Securities or to pay any fees and disbursements of
legal counsel to the Requesting Holders. After the Issuer
has borne the Registration Expenses for three Requested Registrations, all
Registration Expenses shall be borne by the Requesting Holders.
2.4 Registration Procedures. (a) In the case of each registration
effected by the Issuer pursuant to this Article 2, the Issuer shall keep each
holder of Registrable Securities included in such registration advised in
writing as to the initiation, progress, and effective date of each registration,
qualification and compliance, and, at its expense to the extent provided in
Section 2.3, the Issuer will:
(i) subject to Section 2.4(b) below, keep each registration effective for a
period of 180 days (plus any number of days that the Qualified Holders are
unable to use a prospectus pursuant to Section 2.4(b) below) or until each
such holder shall have completed the distribution described in the
registration statement relating thereto, whichever first occurs (the
"Registration Period"); and
(ii) furnish such number of prospectuses (including preliminary prospectuses)
and other documents filed with the Securities and Exchange Commission (the
"Commission") as part of the registration statement as such holders from
time to time may request.
(b) If, within the Registration Period, there occurs any development
or any event which makes any statement in the registration statement or any
post-effective amendment thereto, or any document incorporated therein by
reference, untrue in any material respect or which requires the making of any
changes in the registration statement or post-effective amendment thereto or
prospectus or amendment or supplement thereto, so that they will not contain any
untrue statement of a material fact or omit to state any material fact required
to be stated therein or necessary to make the statements therein (in the case of
any prospectus, in the light of the circumstances under which they were made)
not misleading, the Issuer shall immediately notify each Qualified Holder
included in such registration of the occurrence thereof and, as soon as
reasonably practicable, prepare and furnish to each such holder, a reasonable
number of copies of a prospectus supplemented or amended so that, as thereafter
delivered to purchasers of Registrable Securities, such prospectus shall not
contain an untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein, in
the light of the circumstances under which they were made, not misleading. Each
Qualified Holder agrees that, upon receipt of any notice from the Issuer
pursuant to this Section 2.4(b), such holder shall forthwith discontinue
disposition of Registrable Securities until it shall have received copies of
such amended or supplemented prospectus, and, if so directed by the Issuer,
shall deliver to the Issuer all copies, other than permanent file copies, then
in its possession of the prospectus covering Registrable Securities at the time
of receipt of such notice.
(c) Each Qualified Holder participating in any Cutback Registration
shall, as among all holders of Registrable Securities, be entitled to exercise
its rights hereunder pro rata according to the number of shares of Registrable
Securities held by such Qualified Holder and any Electing Holders.
(d) If requested by the underwriters for any underwritten offering of
Registrable Securities pursuant to a registration requested under this
Agreement, the Issuer will enter into an underwriting agreement with such
underwriters for such offering, such agreement to contain such representations
and warranties by the Issuer and such other terms and provisions as are
customarily contained in underwriting agreements with respect to secondary
distributions, including, without limitation, indemnities and contribution to
the effect and to the extent provided in Section 2.5 hereof and an opinion of
counsel for the Issuer dated the date of the closing under the underwriting
agreement, and providing that the Issuer shall use its best efforts to furnish a
"cold comfort" letter signed by the independent public accountants who have
audited the Issuer's financial statements included in such registration
statement, in each such case covering substantially the same matters with
respect to such registration statement (and the prospectus included therein) as
are customarily covered in opinions of Issuer's counsel and in accountants'
letters delivered to underwriters in underwritten public offerings of securities
and such other matters as the underwriters reasonably request and, in the case
of such accountants' letter, with respect to events subsequent to the date of
such financial statements. The holders of Registrable Securities on whose behalf
the Registrable Securities are to be distributed by such underwriters shall be
parties to any such underwriting agreement.
(e) In connection with the preparation and filing of each registration
statement registering Registrable Securities under the Securities Act, the
Issuer will give the underwriters, if any, and their counsel and accountants,
such reasonable and customary access to its books and records and such
opportunities to discuss the business of the Issuer with its officers and the
independent public accountants who have certified the Issuer's financial
statements as shall be necessary, in the opinion of such underwriters or their
respective counsel, to conduct a reasonable investigation within the meaning of
the Securities Act.
2.5 Indemnification. (a) With respect to any registration which has
been effected pursuant to this Article 2, the Issuer shall indemnify each
Qualified Holder whose securities are included therein, each such holder's
directors and officers, each underwriter (as defined in the Securities Act) of
the securities sold by such a holder, each other Person who participates in the
offering of such holder's securities, and each Person who controls (within the
meaning of the Securities Act) any such holder, underwriter, or participating
Person from and against all claims, losses, damages and liabilities (or actions
in respect thereof) arising out of or based on:
(i) any untrue statement (or alleged untrue statement) of a material fact
contained in any prospectus, offering circular or other document (including
any related registration statement) incident to any such registration
effected pursuant to this Article 2 furnished by such holder pursuant to
Section 2.6,
(ii) any omission (or alleged omission) to state therein a material fact
relating to such holder required to be stated therein or necessary to make
the statements therein not misleading, or
(iii) any violation by the Issuer of the Securities Act or any rule or
regulation promulgated thereunder applicable to the Issuer, or any blue sky
or state securities laws or any rule or regulation promulgated thereunder
applicable to the Issuer,
in each case relating to action or inaction required of the Issuer in connection
with any such registration, and will reimburse each such Person entitled to
indemnity hereunder for any legal and other expenses reasonably incurred in
connection with investigating or defending any such claim, loss, damage,
liability or action; provided that, the foregoing indemnity and reimbursement
obligation is not applicable to the extent that any such claim, loss, damage or
liability arises out of or is based on any untrue statement (or alleged untrue
statement) or omission (or alleged omission) made in reliance upon and in
conformity with written information furnished to the Issuer by or on behalf of
such a holder or by or on behalf of such an underwriter specifically for use in
such prospectus, offering circular or other document; and further provided that,
with respect to any untrue statement or omission or alleged untrue statement or
omission made in any preliminary prospectus, the indemnity agreement contained
in this Section 2.5(a) will not inure to the benefit of any underwriter to the
extent that any such losses, claims, damages or liabilities of such underwriter
result from the fact that there was not sent or given to any person who
purchased Registrable Securities in connection with such registration, at or
prior to the written confirmation of the sale of Registrable Securities to such
person, a copy of the prospectus relating to such registration, as then amended
or supplemented (exclusive of material incorporated by reference), if the Issuer
had previously furnished copies thereof to such underwriter.
(b) Each holder of Registrable Securities which are included in such
registration, qualification or compliance shall indemnify the Issuer, its
directors and officers, each underwriter (as defined in the Securities Act) of
the securities of such holder, each other person who participates in the
offering of such holder's securities and each Person who controls (within the
meaning of the Securities Act) the Issuer or any such underwriter or
participating Person from and against all claims, losses, damages and
liabilities (or actions in respect thereof) arising out of or based on:
(i) any untrue statement (or alleged untrue statement) of a material fact
contained in any prospectus, offering circular or other document (including
any related registration statement) incident to any such registration
effected pursuant to this Article 2,
(ii) any omission (or alleged omission) to state therein a material fact
required to be stated therein or necessary to make the statements therein
not misleading, or
(iii) any violation by such holder of the Securities Act or any rule or
regulation promulgated thereunder applicable to such holder, or of any blue
sky or other state
securities law or any rule or regulation promulgated thereunder applicable
to such holder,
in each case, relating to action or inaction required of such holder in
connection with any registration, qualification or compliance, and will
reimburse each such Person entitled to indemnity hereunder for any legal and
other expenses reasonably incurred in connection with investigating or defending
any such claim, loss, damage, expense, liability or action, but in each case
only to the extent that such untrue statement (or alleged untrue statement) or
omission (or alleged omission) is made in such prospectus, offering circular or
other document in reliance upon and in conformity with written information
furnished to the Issuer by or on behalf of such holder specifically for use
therein; and further provided that, with respect to any untrue statement or
omission or alleged untrue statement or omission made in any preliminary
prospectus, the indemnity agreement contained in this Section 2.5(b) will not
inure to the benefit of any underwriter to the extent that any such losses,
claims, damages or liabilities of such underwriter result from the fact that
there was not sent or given to any person who purchased Registrable Securities
in connection with such registration, at or prior to the written confirmation of
the sale of Registrable Securities to such person, a copy of the prospectus
relating to such registration, as then amended or supplemented (exclusive of
material incorporated by reference), if the Issuer had previously furnished
copies thereof to such underwriter.
(c) Each party entitled to indemnification under this Section 2.5 (an
"Indemnified Party") shall give notice to the party required to provide
indemnification (the "Indemnifying Party") promptly after the Indemnified Party
has actual knowledge of any claim as to which indemnity may be sought, and shall
permit the Indemnifying Party to assume the defense of any such claim or any
litigation resulting therefrom; provided that:
(i) counsel for the Indemnifying Party who shall conduct the defense of any
such claim or any litigation shall be approved by the Indemnified Party,
(ii) the Indemnified Party may participate in such defense at the Indemnified
Party's expense (provided that the Indemnified Party or Indemnified Parties
have the right to employ one counsel to represent it or them if, in the
reasonable judgment of the Indemnified Party or Indemnified Parties, it is
advisable for it or them to be represented by separate counsel by reason of
having legal defenses which are different from or in addition to those
available to the Indemnifying Party, and in that event the fees and
expenses of such one counsel will be paid by the Indemnifying Party), and
(iii) failure of any Indemnified Party to give notice as provided herein will
not relieve the Indemnifying Party of its obligations under this Section
2.5.
No Indemnifying Party, in the defense of any such claim or litigation, will,
except with the consent of each Indemnified Party, consent to entry of any
judgment or enter into any settlement (which judgment or settlement would be
adverse to and binding upon such Indemnified Party) of any claim for which such
Indemnified Party may seek indemnification hereunder; provided that,
as to each Indemnified Party withholding such consent, the maximum amount of the
losses, damages or liabilities in respect of which such Indemnified Party may
seek indemnification hereunder with respect to such claim is limited to the
amount which the Indemnifying Party would have paid to or on behalf of such
Indemnified Party had such Indemnified Party consented to such judgment or
settlement.
(d) If the indemnification provided for in this Section 2.5 is for any
reason unavailable to an Indemnified Party in respect to any loss, claim, damage
or liability, or any action in respect thereof, referred to herein, then each
Indemnifying Party will, in lieu of indemnifying such Indemnified Party,
contribute to the amount paid or payable by such Indemnified Party as a result
of such loss, claim, damage or liability, or action in respect thereof, in such
proportion as shall be appropriate to reflect the relative fault of the
Indemnifying Party on the one hand and the Indemnified Party on the other with
respect to the statements or omissions which resulted in such loss, claim,
damage or liability, or action in respect thereof, as well as any other relevant
equitable considerations. The relative fault will be determined by reference to
whether the untrue or alleged untrue statement of a material fact or omission or
alleged omission to state a material fact relates to information supplied by the
Indemnifying Party on the one hand or the Indemnified Party on the other, the
intent of the parties and their relative knowledge, access to information and
opportunity to correct or prevent such statement or omission, but not by
reference to any Indemnified Party's stock ownership in the Issuer. In no event,
however, will a holder of Registrable Securities be required to contribute in
excess of the amount of the net proceeds received by such holder in connection
with the sale of Registrable Securities in the offering which is the subject of
such loss, claim, damage or liability. The amount paid or payable by an
Indemnified Party as a result of the loss, claim, damage or liability, or action
in respect thereof, referred to above in this paragraph includes, for purposes
of this paragraph, any legal or other expenses reasonably incurred by such
Indemnified Party in connection with investigating or defending any such action
or claim. No Person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Securities Act)) is entitled to contribution from any
Person who was not guilty of such fraudulent misrepresentation.
2.6 Information by Holders. If Registrable Securities owned by a
Qualified Holder are included in any registration, such holder will furnish to
the Issuer in writing such information regarding itself and the distribution
proposed by such holder as the Issuer may reasonably request and as is required
in connection with any registration, qualification or compliance referred to in
this Article 2.
2.7 Rule 144. (a) With a view to making available to each Qualified
Holder the benefits of certain rules and regulations of the Commission which may
permit the sale of the Registrable Securities to the public without
registration, the Issuer agrees that so long as a holder owns any Registrable
Securities, the Issuer shall, (a) make and keep available public information, as
those terms are contemplated by Rule 144 under the Securities Act; (b) timely
file with the Commission all reports and other documents required to be filed
under the Securities Act and the Securities Exchange Act of 0000 (xxx "Xxxxxxxx
Xxx"); and (c) furnish to each holder forthwith upon request a written statement
by the Issuer as to its compliance with the reporting requirements of the
Securities Act and the Exchange Act, a copy of the most recent annual or
quarterly report of the Issuer, and such other information as such holder may
reasonably request in order to avail itself of any rule or regulation of the
Commission allowing such holder to sell any Registrable Securities without
registration.
(b) When Qualified Holders are selling New Shares under Rule 144,
unless the Issuer otherwise agrees, the aggregate daily sales volume of all
Registrable Securities will not exceed the greater of (1) 30% of the average
daily trading volume of Issuer Common Shares on the NASDAQ/NMS during the 20
trading days preceding the date of sale (but excluding from such average daily
trading volume any Registrable Securities that were sold in such period), or (2)
an aggregate sales price of $36 million.
2.8 Permitted Interruption. Notwithstanding any provision of this
Article 2, the Issuer shall not be required to prepare or file a registration
statement, amendment or post-effective amendment thereto or prospectus
supplement or to supplement or amend any registration statement or otherwise
facilitate the resale of Registrable Securities, and the Issuer shall be free to
take or omit to take any other action that would result in the impracticality of
any such filing, supplement or amendment, if such filing, supplement or
amendment (and any required disclosure therein), in the good faith and
reasonable judgment of the Issuer, would jeopardize the completion of a material
investment in the Issuer, or any acquisition, divestiture or other similar
transaction that the Issuer is at such time in negotiations therefor, so long as
the Issuer shall, as promptly as practicable after the conclusion of such
negotiations, make such filing, supplement or amendment and so long as the
Issuer shall, as promptly as practicable thereafter, comply with the
requirements of this Article 2, if applicable (any period described in this
Section 2.8 during which the Company is not required to make such filing,
amendment or supplement being herein a "Permitted Interruption"). If a Qualified
Holder has requested registration of New Shares in a Requested Registration,
Piggyback Registration or Cutback Registration and a Permitted Interruption
affects that registration, the Issuer agrees to notify each of the Holders so
affected by a Permitted Interruption upon each of the commencement and
termination of each Permitted Interruption. The Issuer shall not be required in
the notice of a Permitted Interruption to disclose the cause for such Permitted
Interruption. The Permitted Interruption terminates upon the termination of such
negotiations or the public disclosure thereof. The Issuer is not entitled to
give notice of a Permitted Interruption more than two times in any twelve-month
period and the period over which a Permitted Interruption extends can be no
longer than 120 days.
Article 3
MISCELLANEOUS
3.1 Notices. Except as otherwise specifically provided in this
Agreement, all communications hereunder shall be sent in the manner and to the
addresses set forth in Section 10.1 of the Investment Agreement and, as to any
Qualified Holder, to an address provided to Issuer by such holder for purposes
of notices hereunder.
3.2 Non-Waiver of Remedies and Actions By Holders. No course of
dealing between the Issuer and any Qualified Holder or any delay on the part of
such holder in exercising any rights available to such holder operates as a
waiver of any right of such holder, except to the extent expressly waived in
writing by such holder.
3.3 Headings. The headings in this Agreement are for purposes of
reference only and are not to be considered in construing this Agreement.
3.4 Counterparts. This Agreement may be executed in any number of
counterparts, each of which when so executed and delivered constitutes an
original and all together shall constitute one Agreement.
3.5 Successors and Assigns. This Agreement binds and inures to the
benefit of the successors of any Qualified Holders and the Issuer. No Qualified
Holder may assign any of the rights created by this Agreement; provided, that, a
Qualified Holder may assign its rights hereunder, in whole or in part, to a
Controlled Affiliate of such Qualified Holder, which assignment shall be valid
only so long as such Affiliate remains a Controlled Affiliate. The Qualified
Holder shall promptly notify the Issuer in writing of any assignment pursuant to
this Section 3.5.
3.6 Consent of Holders; Waiver. (a) Whenever, by the terms hereof,
anything is required to be done to the satisfaction of the Qualified Holders, or
such Holders are to appoint a representative, if such satisfaction, or
appointment is necessary in connection with a specific registration being
effected hereunder, it will be effective when done by the Qualified Holders
holding a majority of the Registrable Securities held by Qualified Holders that
are being included in such registration.
(b) Except as provided in Section 3.6(a), whenever, by the terms
hereof, the consent of the Qualified Holders is required, anything is required
to be done to the satisfaction of such holders, or if such holders are to
appoint a representative, such consent, satisfaction, or appointment is
effective when done by Qualified Holders holding a majority of the Registrable
Securities held by Qualified Holders.
(c) All rights and remedies hereunder for the benefit of the Qualified
Holders are intended to be for the benefit of each holder of Registrable
Securities and, unless otherwise specified to the contrary, may be exercised by
the Qualified Holders together or by each such holder separately.
3.7 Enforceability. If any term or provision of this Agreement, or the
application thereof to any Person or circumstance, is, to any extent, invalid or
unenforceable, the remaining terms and provisions of this Agreement or
application to other Persons and circumstances are not invalidated thereby, and
each term and provision hereof is to be construed with all other remaining terms
and provisions hereof to effect the intent of the parties hereto to the fullest
extent permitted by law.
3.8 Law Governing. This Agreement is to be construed and enforced in
accordance with and shall be governed by the laws of the State of Delaware
applicable to contracts executed in and to be fully performed in that state.
3.9 Effectiveness. The effectiveness of this Agreement is conditioned
upon, and the obligations and rights of the parties hereunder will come into
force and effect at, the Closing as contemplated in the Investment Agreement.
* * * * *
IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be duly executed and delivered as of the day and year first above written.
NEXTEL COMMUNICATIONS, INC.
__________________________
Name:
Title:
MICROSOFT CORPORATION
___________________________
Name:
Title:
