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EXHIBIT 10.25
REGISTRATION RIGHTS AGREEMENT
This REGISTRATION RIGHTS AGREEMENT dated as of November 8,
1996, is by and between NextWave Telecom Inc., a Delaware corporation (the
"Company") and The Xxxxx Group Inc., a Delaware corporation ("Partner").
THE COMPANY AND PARTNER COVENANT AND AGREE AS FOLLOWS:
1. Definitions. For purposes of this Agreement:
(a) the term "REGISTER," "REGISTERED," and "REGISTRATION"
refer to a registration effected by preparing and filing a registration
statement or similar document in compliance with the Securities Act of 1933, as
amended (the "Act"), and the declaration or ordering of effectiveness of such
registration statement or document;
(b) the term "REGISTRABLE SECURITIES" means those shares of
the Company's Series B Common Stock purchased from the Company pursuant to that
certain Subscription Agreement of even date herewith by and between the Company
and Partner (including shares received from the Company with respect to or in
replacement of such shares by reason of splits, dividends, combinations and
recapitalizations) but excluding any shares which are not "restricted
securities" pursuant to Rule 144 or other comparable provisions under the Act
("RULE 144") or which may be sold without registration pursuant to Rule 144(k);
(c) the number of shares of "REGISTRABLE SECURITIES THEN
OUTSTANDING" will be determined by the number of shares of Series B Common
Stock outstanding which are Registrable Securities;
(d) the term "HOLDER" means Partner or any assignee thereof in
accordance with Section 11;
(e) "MARKET VALUE" for any security on any given date means
(i) the average closing price for the prior twenty five (25) trading days for
such security on the principal stock exchange on which such security is traded
or (ii) if not so traded, the closing (or, if no closing price is available,
the average of the bid and asked prices for each trading day) for such period
on the NASDAQ if such security is listed on the NASDAQ or (iii) if not listed on
any exchange or quoted on the NASDAQ, such value as may be determined in good
faith by the Company's Board of Directors; and
(f) the term "PRIOR REGISTRATION RIGHTS AGREEMENTS" means,
collectively, that certain Registration Rights Agreement dated as of May 8,
1996, that certain Registration Rights Agreement dated as of April 8, 1996,
that certain Registration Rights Agreement dated as of August 22, 1996, that
certain Registration Rights Agreement dated as of October 29, 1996 and that
certain Registration Rights Agreement dated November 6, 1996.
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2. Request for S-3 Registration.
(a) If the Company receives at any time after January 1, 1998
a written request from a Holder(s) that the Company file a registration
statement under the Act covering the registration of such Holder's or Holders'
Registrable Securities then outstanding, then the Company will, within ten days
of the receipt thereof, give written notice of such request to all Holders and
will, subject to the limitations set forth below and of SUBSECTION 2(b) and
SECTION 12, effect as soon as practicable, and in any event shall use its best
efforts to effect within sixty (60) days of the receipt of requests
representing at least $2,000,000 in aggregate of anticipated offering price of
Registrable Securities, a registration statement on Form S-3 under the Act of
all Registrable Securities which the Holders request to be registered within
twenty (20) days of the notice by the Company. Notwithstanding the foregoing,
the Company's obligation to effect the requested registration shall be
conditioned upon (i) the anticipated aggregate offering price of the
Registrable Securities equaling or exceeding $2,000,000 and (ii) the Company's
meeting the then-current eligibility requirements for the use of Form S-3.
(b) If the Holders initiating the registration request
pursuant to this Agreement ("INITIATING S-3 HOLDERS") intend to distribute the
Registrable Securities covered by their request by means of an underwriting,
they will so advise the Company as a part of their request made pursuant to
this Section 2 and the Company will include such information in the written
notice referred to in subsection 2(a). The underwriter will be selected by the
Company with prior consultation with the Initiating S-3 Holders and will be
reasonably acceptable to a majority in interest of the Initiating S-3 Holders.
In such event, the right of any Holder to include such Holder's Registrable
Securities in such registration will 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 S-3 Holders and such Holder) to the
extent provided in this Agreement. All Holders proposing to distribute their
securities through such underwriting will (together with the Company as
provided in SUBSECTION 4(e)) enter into an underwriting agreement in customary
form with the underwriter or underwriters selected by the Company.
Notwithstanding any other provision of this SECTION 2, if the underwriter
advises the Company in writing that marketing factors require a limitation of
the number of shares to be underwritten, then the Company will so advise all
Holders of Registrable Securities which would otherwise be underwritten
pursuant to this Agreement, and the number of shares of Registrable Securities
that may be included in the underwriting will be allocated among all Holders
thereof, including the Initiating S-3 Holders, in proportion (as nearly as
practicable) to the amount of Registrable Securities of the Company owned by
each Holder; provided, however, that the number of shares of Registrable
Securities to be included in such underwriting will not be reduced unless all
other securities are first entirely excluded from the underwriting.
(c) Notwithstanding the foregoing, the Company is obligated to
effect only one such registration pursuant to this SECTION 2 during each twelve
month period after the first registration statement filed hereunder; provided,
however, that the Company shall be deemed to fulfill such obligation only when
such registration has become effective and, provided further, that the Company
will
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pay all registration expenses in connection with any registration initiated at
the request of a Holder to the extent provided below in SECTION 6.
(d) Notwithstanding the foregoing, if the Company furnishes to Holders
requesting a registration statement pursuant to this SECTION 2, a certificate
signed by the President 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 registration statement to be filed
and it is therefore essential to defer the filing of such registration
statement, the Company will have the right to defer taking action with respect
to such filing for a period of not more than one hundred twenty (120) days
after receipt of the request of the Initiating S-3 Holders.
(e) The Company shall have no obligation to any Holder under this
Section 2 with respect to whom the Company has obtained an opinion of counsel,
in a form reasonably satisfactory to such Holder, to the effect that the
Registrable Securities involved may be immediately sold to the public without
registration thereof, whether pursuant to Rule 144 or otherwise.
3. Company Registration. If (but without any obligation to do so) the
Company proposes to register (including for this purpose a registration
effected by the Company for shareholders other than the Holders) any of its
stock or other securities under the Act in connection with the public offering
of such securities solely for cash (other than a registration relating solely
to the sale of securities to participants in a Company stock plan, or a
registration on any form which 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), the Company will, at such
time, promptly give each Holder written notice of such registration no less
than forty-five (45) days prior to the proposed effective date of such
registration. Upon the written request of each Holder given within twenty (20)
days after notice by the Company, the Company will, subject to the provisions
of Section 7 and Section 12, cause to be registered under the Act all of the
Registrable Securities that each such Holder has requested to be registered.
The registration expenses of the holders of the Registrable Securities incurred
pursuant to this Section 3 shall be paid by the Company to the extent provided
in Section 6 below.
4. Obligations of the Company. Whenever required under this Agreement to
effect the Registration of any Registrable Securities, the Company will, as
expeditiously as reasonably possible;
(a) Prepare and file with the SEC a registration statement with respect
to such Registrable Securities and use its best efforts to cause such
registration statement to become effective, and, subject to applicable law,
keep such registration statement effective until such time as the Company has
filed and had declared effective an S-3 registration statement, and in the case
of an S-3 registration statement filed pursuant to Section 2, to keep such
registration statement effective to the extent permitted by and subject to
applicable law.
(b) Prepare and file with the SEC such amendments and supplements to
such registration statement and the prospectus used in connection
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with such registration statement as may be necessary to comply with the
provisions of the Act with respect to the disposition of all securities covered
by such registration statement.
(c) Furnish to the Holders such numbers of copies of the registration
statement, each amendment and supplement thereto, the prospectus included in
such registration statement, including a preliminary prospectus, in conformity
with the requirements of the Act, and such other documents as they may
reasonably request in order to facilitate the disposition of Registrable
Securities owned by them.
(d) Use its best efforts to register and qualify the securities covered by
such registration statement under such other securities or Blue Sky laws of such
jurisdictions as will be reasonably requested by the Holders, provided that the
Company will not be required in connection therewith or as a condition thereto
to qualify to do business or to file a general consent to service of process in
any such states or jurisdictions.
(e) In the event of any underwritten public offering, enter into and
perform its obligations under an underwriting agreement, in usual and customary
form, with the managing underwriter of such offering. Each Holder participating
in such underwriting will also enter into and perform its obligations under such
an agreement.
(f) Notify each Holder of Registrable Securities covered by such
registration statement at any time when a prospectus relating thereto is
required to be delivered under the Act of the happening of any event as a result
of which the prospectus included in such registration statement, as then in
effect, includes an untrue statement of a material fact or omits to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading in the light of the circumstances then existing.
(g) Use its best efforts to furnish, at the request of any Holder
requesting registration of Registrable Securities pursuant to this Agreement, on
the date that such 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, (i) 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 the Holders
requesting registration of Registrable Securities and (ii) 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, and to the Holders requesting registration of Registrable
Securities.
(h) Cause all such Registrable Securities to be listed on each securities
exchange on which similar securities issued by the Company are then listed.
(i) Provide a transfer agent and registrar for all such Registrable
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Securities not later than the effective date of such registration statement.
(j) Make available for inspection by any Holder
participating in such registration, any underwriter participating in any
disposition pursuant to such registration statement and one counsel and
accountant selected by the selling stockholders as a group, all financial and
other records, pertinent corporate documents and properties of the Company
reasonably requested, and cause the Company's officers, directors, employees
and independent accountants to supply information reasonably requested by any
Holder or any such underwriter, attorney or accountant in connection with such
registration statement, provided that the Company shall be under no obligation
to disclose proprietary or privileged information.
(k) Advise the Holders participating in such registration
after it shall receive notice or obtain knowledge thereof, of the issuance of
any stop order by the SEC suspending the effectiveness of such registration
statement or the initiation or threatening of any proceeding for such purpose
and promptly use all reasonable efforts to prevent the issuance of any stop
order or to obtain its withdrawal if such stop order should be issued.
(l) Within a reasonable period prior to the filing of any
registration statement or prospectus, or any amendment or supplement to such
registration statement or prospectus, furnish a copy thereof to the Holders
participating in such registration and, except with respect to any registration
pursuant to SECTION 3, refrain from filing any such registration statement,
prospectus, amendment or supplement to which one counsel, selected by the
selling stockholders as a group, shall have reasonably objected to on the
grounds that such document does not comply in all material respects with the
requirements of the Act or the rules and regulations thereunder, unless, in the
case of an amendment or supplement, in the opinion of counsel for the Company
the filing of such amendment or supplement is reasonably necessary to protect
the Company from any liabilities under applicable federal or state law and such
filing will not violate applicable laws.
(m) Otherwise use its reasonable best efforts to comply
with all applicable rules and regulations of the SEC, and make available to its
security holders, as soon as reasonably practicable, an earnings statement
covering the period of at least twelve months beginning with the first day of
the Company's first full fiscal quarter after the effective date of the
registration statement, which earnings statement shall satisfy the provisions
of Section 11(a) of the Act and Rule 158 thereunder.
5. Furnishing of Information.
(a) It will be a condition precedent to the obligations of
the Company to take any action pursuant to this Agreement with respect to the
Registrable Securities of any selling Holder that such Holder will furnish to
the Company such information regarding itself, the Registrable Securities held
by it, and the intended method of disposition of such securities as will be
required to effect the registration of such Holder's Registrable Securities.
(b) The Company will have no obligation with respect to any
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registration requested pursuant to SECTION 2 if, due to the operation of
SUBSECTION 5(a), the number of shares or the anticipated aggregate offering
price of the Registrable Securities to be included in the registration does not
equal or exceed the number of shares or the anticipated aggregated offering
price required to originally trigger the Company's obligation to initiate such
registration as specified in SUBSECTION 2(a).
6. Expenses of Registration. The Company shall bear all expenses
other than Selling Holder Expenses (defined below) incurred in any
Registration, including, without limitation, all registration and filing fees
(including all expenses incident to filing with the National Association of
Securities Dealers, Inc.), messenger and delivery expenses, fees and expenses
of complying with federal and state securities and blue sky laws, printing
expenses and fees and disbursements of the independent certified public
accountants (including for any special audits), fees for the Company's counsel
and fees for one counsel for the selling stockholders, as a group. Each Selling
Holder shall bear his or her equitable share of any Selling Holder Expenses.
"SELLER HOLDER EXPENSES" shall consist of (i) Selling Holder's legal costs
(except for the one counsel provided to the selling stockholders as a group by
Company) and (ii) any proportionate share of brokerage or underwriting fees,
expenses or commissions.
7. Underwriting Requirements. In connection with any offering
involving an underwriting of shares of the Company's capital stock, the Company
will not be required under SECTION 3 to include any of the Holders' securities
in such underwriting unless they accept 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 then only in such quantity as
the underwriters determine in their sole discretion will not jeopardize the
success of the offering by the Company. If the total amount of securities,
including Registrable Securities, requested by shareholders to be included in
such offering exceeds the amount of securities sold other than by the Company
that the underwriters determine in their sole discretion is compatible with the
success of the offering, then the Company will be required to include in the
offering only that number of such securities, including Registrable Securities,
which the underwriters determine in their sole discretion will not jeopardize
the success of the offering (the securities so included to be apportioned pro
rata among the selling shareholders according to the total amount of securities
entitled to be included therein owned by each selling shareholder or in such
other proportions as will mutually be agreed to by such selling shareholders)
but, subject to the rights of the holders of registration rights granted under
the Prior Registration Rights Agreements, in no event will (i) the amount of
securities of the selling shareholders included in the offering be reduced
below 10% of the total amount of the securities included in such offering,
unless such offering is the initial public offering of the Company's securities
in which case the selling shareholders may be excluded if the underwriters make
the determination described above and no other shareholder's securities are
included or (ii) notwithstanding (i) above, any shares being sold by a
shareholder exercising a demand registration right similar to that granted in
SECTION 2 be excluded from such offering. For purposes of the preceding
parenthetical concerning apportionment, for any selling shareholder which is a
Holder of Registrable Securities and 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
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and any trusts for the benefit of any of the foregoing persons will be deemed
to be a single "selling shareholder," and any pro-rata reduction with respect
to such "selling shareholder" will be based upon the aggregate amount of shares
carrying registration rights owned by all entities and individuals included in
such "selling shareholder," as defined in this sentence.
8. Delay of Registration. No Holder will have any right to obtain or
seek an injunction restraining or otherwise delaying any registration pursuant
to Section 3 as the result of any controversy that might arise with respect to
the interpretation or implementation of this Agreement.
9. Indemnification. If any Registrable Securities are included in a
registration statement under this Agreement:
(a) To the extent permitted by law, the Company will indemnify and
hold harmless each Holder, their respective partners, officers, employees,
directors and agents, any underwriter (as defined in the Act) for such Holder
and each person, if any, who controls such Holder or underwriter within the
meaning of the Act or the Securities Exchange Act of 1934, as amended (the
"1934 Act"), against any losses, claims, damages, or liabilities (joint or
several) to which they may become subject under the Act, or the 1934 Act,
insofar as such losses, claims, damages, or liabilities (or actions in respect
thereof) arise out of or are based upon any of the following statements,
omissions or violations (collectively a "Violation"): (i) any untrue statement
or alleged untrue statement of a material fact contained in such registration
statement, including any preliminary prospectus or final prospectus contained
therein or any amendments or supplements thereto, (ii) the 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
or alleged violation of the Act, the 1934 Act, state securities laws or any
rule or regulation promulgated under the Act, or the 1934 Act or state
securities laws; and the Company will pay to each such Holder, underwriter or
controlling person, any legal or other expenses reasonably incurred by them (as
incurred) in connection with investigating or defending any such loss, claim,
damage, liability, or action; provided, however, that the indemnity agreement
contained in this subsection 9(a) will not apply to amounts paid in settlement
of any such loss, claim, damage, liability, or action if such settlement is
effected without the consent of the Company (which consent will not be
unreasonably withheld or delayed), nor will the Company be liable in any such
case for any such loss, claim, damage, liability, or action to the extent that
it arises out of or is based upon a Violation (other than alleged violations)
as ultimately determined by a final judgment of a court of competent
jurisdiction which occurs in reliance upon and in conformity with written
information furnished expressly for use in connection with such registration by
such Holder.
(b) To the extent permitted by law, each selling Holder will indemnify
and hold harmless the Company, each of its directors, each of its officers and
agents who has signed the registration statement, each person, if any, who
controls the Company within the meaning of the Act, any underwriter, any other
Holder selling securities in such registration statement and any controlling
person of any such underwriter or other Holder, against any losses, claims,
damages, or liabilities (joint or several) to which any of the foregoing
persons may become
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subject, under the Act, or the 1934 Act insofar as such losses, claims, damages
or liabilities (or actions in respect thereto) arise out of or are based upon
any Violation (other than alleged violations), in each case to the extent (and
only to the extent) that such Violation occurs in reliance upon and in
conformity with written information furnished by such Holder expressly for use
in connection with such registration as ultimately determined by a final
judgment of a court of competent jurisdiction; and each such Holder will pay
any legal or other expenses reasonably incurred by any person intended to be
indemnified pursuant to this subsection 9(b) (as incurred), in connection with
investigating or defending any such loss, claim, damage, liability, or action;
provided, however, that the indemnity agreement contained in this subsection
9(b) will not apply to amounts paid in settlement of any such loss, claim,
damage, liability or action if such settlement is effected without the consent
of the Holder, which consent will not be unreasonably withheld or delayed;
provided that in no event will any indemnity under this subsection 9(b) exceed
the gross proceeds from the offering received by such Holder.
(c) Promptly after receipt by an indemnified party under this Section
9 of notice of the commencement of any action (including any governmental
action), such indemnified party will, if a claim in respect thereof is to be
made against any indemnifying party under this Section 9, deliver to the
indemnifying party a written notice of the commencement thereof and the
indemnifying party will have the right to participate in, and, to the extent
the indemnifying party so desires, jointly with any other indemnifying party
similarly noticed, to assume the defense thereof with counsel mutually
satisfactory to the parties; provided, however, that an indemnified party
(together with all other indemnified parties which may be represented without
conflict by one counsel) will have the right to retain one separate counsel,
with the reasonable fees and expenses to be paid by the indemnifying party, if
representation of such indemnified party by the counsel retained by the
indemnifying party is inappropriate due to actual or potential differing
interests between such indemnified party and any other party represented by
such counsel in such proceeding. The failure to deliver written notice to the
indemnifying party within a reasonable time of the commencement of any such
action, if prejudicial to its ability to defend such action, will relieve such
indemnifying party of any liability to the indemnified party under this Section
9, but the omission so to deliver written notice to the indemnifying party will
not relieve it of any liability that it may have to any indemnified party
otherwise than under this Section 9. The payments required by this Section 9
will be made periodically throughout the course of investigation or defense, as
and when bills are received or expenses incurred, provided that the indemnified
party seeking reimbursement of expenses hereunder undertakes in a writing
reasonably satisfactory to the indemnifying party, to repay all amounts
previously paid over to the indemnified party if it is ultimately determined
(by a final judgment of a court of competent jurisdiction) that such party is
not entitled to indemnification hereunder.
(d) If the indemnification provided for in this Section 9 is held by a
court of competent jurisdiction to be unavailable to an indemnified party with
respect to any loss, liability, claim, damage, or expense referred to therein,
then the indemnifying party, in lieu of indemnifying such indemnified party to
this Agreement, will 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
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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 that resulted in such loss, liability, claim, damage,
or expense as well as any other relevant equitable considerations. The relative
fault of the indemnifying party and of the indemnified party will 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 parties' relative intent, knowledge, access to information, and opportunity
to correct or prevent such statement or omission.
(e) Notwithstanding the foregoing, to the extent that the provisions on
indemnification and contribution contained in the underwriting agreement
entered into in connection with the underwritten public offering are in
conflict with the foregoing provisions, the provisions in the underwriting
agreement will control.
(f) The obligations of the Company and Holders under this Section 9
will survive the completion of any offering of Registrable Securities in a
registration statement under this Agreement, and otherwise.
10. Reports Under Securities Act of 1934. With a view to making available
to the Holders the benefits of Rule 144 promulgated under the Act and any other
rule or regulation of the SEC that may at any time permit a Holder to sell
securities of the Company to the public without registration or pursuant to a
registration on Form S-3, the Company agrees to:
(a) make and keep public information available, as those terms are
understood and defined in SEC Rule 144, at all times after ninety (90) days
after the effective date of the first registration statement filed by the
Company for the offering of its securities to the general public;
(b) file with the SEC in a timely manner all reports and other
documents required of the Company under the Act and the 1934 Act; and
(c) furnish to any Holder, so long as the Holder owns any Registrable
Securities, forthwith upon reasonable request (i) a written statement by the
Company that it has complied with the reporting requirements of SEC Rule 144
(at any time after ninety (90) days after the effective date of the first
registration statement filed by the Company), the Act and the 1934 Act (at any
time after it has become subject to such reporting requirements), or that it
qualifies as a registrant whose securities may be resold pursuant to Form S-3
(at any time after it so qualifies), (ii) a copy of the most recent annual or
quarterly report of the Company and such other reports and documents so filed
by the Company with the SEC, and (iii) such other information as may be
reasonably requested in availing any Holder of any rule or regulation of the
SEC which permits the selling of any such securities without registration or
pursuant to such form.
11. Assignment of Registration Rights. The rights to cause the Company to
register Registrable Securities pursuant to this Agreement may be assigned (but
only with all related obligations) by a Holder to (i) transferee(s) or
assignee(s) of such securities who, after such assignment or transfer, holds
Registrable Securities (subject to appropriate adjustment for stock splits,
stock dividends, combinations
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and other recapitalizations) with an aggregate Market Value of at least
$500,000 or (ii) transferee(s) or assignee(s) of such securities who, after
such assignment or transfer, holds all of the Registrable Securities of the
transferring Holder, provided the Company is, within a reasonable time after
such transfer, furnished with written notice of the name and address of such
transferee(s) or assignee(s) and the securities with respect to which such
registration rights are being assigned.
12. Prior Registration Rights Agreements. Notwithstanding any other
provision of this Agreement to the contrary, the Company's obligation to
register Registrable Securities hereunder shall be suspended to the extent that
such registration (i) in the case of a request pursuant to Section 3 hereof,
would reduce the amount of registrable securities requested and entitled to be
included in such registration statement by any holder granted registration
rights pursuant to a Prior Registration Rights Agreement or (ii) in the case of
a request pursuant to Section 2 or 3 hereof, could result in such registration
being declared effective within 120 days of the effective date of any
registration effected pursuant to Section 2 of any of the Prior Registration
Rights Agreements. If less than all of the Registrable Securities requested by
the Holders may be included in any registration statement as a result of the
foregoing sentence, the Registrable Securities so included shall be apportioned
pro rata among such Holders. The rights of the Holders arising pursuant to this
Agreement shall be subject in all respects to the rights of holders of
registration rights granted pursuant to any of the Prior Registration Rights
Agreements.
13. "Market Stand-Off" Agreement. Each Holder hereby agrees that if
an offering is made by means of a proposed underwriting, during the period of
duration specified by the Company and an underwriter of Series B Common Stock
or other securities of the Company, following the effective date of a
registration statement of the Company filed under the Act, it will not, to the
extent requested by the Company and such underwriter, directly or indirectly
sell, offer to sell, contract to sell (including, without limitation, any short
sale), grant any option to purchase or otherwise transfer or dispose of (other
than to donees who agree to be similarly bound) any securities of the Company
held by it at any time during such period except Series B Common Stock included
in such registration, not to exceed 180 days in the case of the Company's IPO
and not to exceed 90 days in the case of all subsequent registration statements
for underwritten offerings; provided, however, that all officers and directors
of the Company and all other persons with registration rights (whether or not
pursuant to this Agreement) enter into similar agreements.
In order to enforce the foregoing covenant, the Company may
impose stop-transfer instructions with respect to the Registrable Securities of
each Holder (and the shares or securities of every other person subject to the
foregoing restriction) until the end of such period.
14. Termination of Registration Rights. No Holder will be entitled to
exercise any right provided for in this Agreement after the later of (i)
December 31, 2000 or (ii) two years after the date of a Qualified Public
Offering, as defined in the Company's Restated Certificate of Incorporation.
15. Adjustments Affecting Registrable Shares. The Company will not
take any action, or permit any change to occur, with respect to its securities
which
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would adversely affect the ability of the Holders to include Registrable Shares
in a registration undertaken pursuant hereto. However, nothing in this
Agreement shall limit the Company's ability to register, offer and sell
securities.
16. Amendments. The approval by Holders of at least 60% in interest
of the Registrable Securities then outstanding hereunder shall be required to
amend, modify or waive the provisions of this Agreement.
(REMAINDER OF PAGE INTENTIONALLY LEFT BLANK)
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IN WITNESS WHEREOF, the Company and Partner have executed this
Agreement on this 8th day of November, 1996.
THE XXXXX GROUP INC.
By: /s/ Xxxxx XxXxxx
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Its: Vice President
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Address:
00000 Xxxxxxx Xxxxxxxxx
Xxxxxxxxx, XX 00000
Attn: Treasurer
NEXTWAVE TELECOM INC.
By: /s/ Xxxxx Xxxxxxx
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Its: CEO & President
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