EXHIBIT 10.31
SIDE AGREEMENT
This Side Agreement ("Agreement") is made as of the 16th day of March,
2005 by and among Clearwire Corporation, a Delaware corporation (the "Company"),
Eagle River Holdings, LLC, a Washington limited liability company ("ERH"), and
Xxxx Canada, a Canadian corporation incorporated under the Canada Business
Corporations Act ("Xxxx"). The Company, ERH and Bell are hereinafter
collectively referred to as the "Parties".
In consideration for the purchase by Bell of shares of Class A Common
Stock ("Class A Common") of the Company pursuant to a Subscription Agreement
dated as of March 8, 2005 (the "Subscription Agreement"), the Parties agree to
the terms and obligations of this Agreement.
The Company is entering into this Agreement on its own behalf and not on
behalf of its Affiliates (the "Company Affiliates"), but any breach by any of
the Company Affiliates of any of its obligations under this Agreement will be
deemed a breach by the Company under this Agreement. Bell is entering into this
Agreement on its own behalf and not on behalf of its Affiliates (the "Bell
Affiliates"), but any breach by any of the Bell Affiliates of any of its
obligations under this Agreement will be deemed a breach by Bell under this
Agreement. ERH is entering into this Agreement on its own behalf and not on
behalf of the other XxXxx Entities, but any breach by any of the XxXxx Entities
of any of its obligations under this Agreement will be deemed a breach by ERH
under this Agreement. The Company Affiliates, the Bell Affiliates and the XxXxx
Entities are collectively referred to herein as the "Parties Affiliates".
Capitalized terms used herein that are not otherwise defined herein shall have
the meanings assigned to them in the Stockholders Agreement (as defined below).
1. Confidentiality.
1.1 Disclosure of Terms. The Parties acknowledge that the terms and
conditions (collectively, the Transaction Terms") of this Agreement, the
Amended and Restated Stockholders Agreement dated as of March 16, 2004 (the
"Stockholders Agreement"), the Joinder to the Stockholders Agreement dated as
of the date of this Agreement, the Registration Rights Agreement dated as of
March 16, 2004 (the "Registration Rights Agreement"), the Joinder to the
Registration Rights Agreement dated as of the date of this Agreement, the
Subscription Agreement and the Master Supply Agreement, dated as of the date
of this Agreement, by and between the Company, Bell and BCE Nexxia
Corporation (the "Master Supply Agreement") and all exhibits, restatements
and amendments thereto (collectively, the "Transaction Agreements"),
including their existence, shall be considered Confidential Information (as
that term is defined below) and shall not be disclosed by the Parties or the
Parties Affiliates to any third party except in accordance with the
provisions set forth below.
1.2 Definition of Confidential Information. For the purposes of this
Agreement, "Confidential Information" means (i) any proprietary or
confidential information, including without limitation the Transaction Terms,
whether in written, oral, electronic or other tangible or intangible form,
which prior to the date hereof has been, or after the date hereof may be,
furnished by or on behalf of a Party or a Parties Affiliate (as applicable,
the "Disclosing Party") to another Party or a Parties Affiliate (as
applicable, the "Receiving Party") or its Representatives (as defined below),
relating to the business of the Disclosing Party, the investment in the
Company by Bell or the commercial relationship established under the Master
Supply Agreement, together with notes, work papers or other documents
prepared by the Receiving Party or its Representatives which contain, reflect
or are based upon such information, and (ii) the fact that such information
has been made available to the Receiving Party. Notwithstanding the
foregoing, the following will not constitute "Confidential Information" for
purposes of this Agreement:
(a) information that the Receiving Party can show by documented and
cogent evidence was known to the Receiving Party prior to the
disclosure thereof under this Agreement or the Confidentiality
Agreement (as defined below);
(b) information that is or becomes generally available to the public
other than as a result of a disclosure by the Receiving Party in
breach of this Agreement or the Confidentiality Agreement;
(c) information that is or becomes available to the Receiving Party on a
non-confidential basis from a source other than the Disclosing
Party, provided that such source is not known by the Receiving
Party, after reasonable inquiry, to be prohibited from transmitting
the Confidential Information by a contractual, legal or fiduciary
obligation to the Disclosing Party or any other person; and
(d) information that is independently acquired or developed by the
Receiving Party without reference to the Confidential Information.
1.3 Confidentiality and Restricted Use. Subject to Sections 1.4, 1.5
and 1.6, a Receiving Party agrees that:
(a) it shall not, directly or indirectly, use the Confidential
Information furnished to it by or on behalf of the Disclosing Party,
for any purpose other than in connection with the investment by Bell
in the Company or the commercial relationship established under the
Master Supply Agreement;
(b) the Confidential Information shall be kept confidential;
(c) it shall not, in any manner whatsoever, disclose or disseminate the
Confidential Information (in whole or in part) furnished to it
hereunder to any person, provided that, subject to the terms and
conditions of this Agreement, any disclosure of the Confidential
Information may be made to:
(i) any Affiliate, officer, director, employee, accountant,
auditor or attorney of the Receiving Party (collectively,
"Representatives") who needs to know such Confidential
Information in connection with the investment by Bell in the
Company, the commercial relationship established under the
Master Supply Agreement, the performance of services for the
Receiving Party or the business operations of the Receiving
Party and who has agreed or is otherwise obligated to abide by
the terms of this Section 1; and
(ii) any other person upon the prior written consent of the
Disclosing Party.
1.4 Press Releases. The Company and Bell agree that they may,
individually or collectively, and from time to time, wish to issue press
releases or make other forms of public disclosure regarding the investment by
Bell in the Company or the commercial relationship established under the
Master Supply Agreement. Subject to the following, the Company and Bell agree
that the content of any such press release or public disclosure will require
the consent of both the Company and Bell prior to any issuance or disclosure,
provided, however, that such consent will not be required if such issuance or
disclosure: (i) is required under applicable U.S. or Canadian securities laws
and stock exchange or stock market rules and regulations (provided that the
Company or Bell, as applicable, will be afforded a reasonable opportunity to
comment), (ii) is substantially the same as disclosure already approved by
each of the Company and Bell under this Section 1.4, or (iii) only discloses
(a) the fact that Bell has invested the subscribed amount in the Company, (b)
Xxxx'x percentage ownership in the Company, and/or (c) the fact that Bell is
the Company's exclusive strategic partner in its Voice over Internet Protocol
("VoIP") service offering in the United States and its preferred VoIP
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partner internationally, and that Bell and the Company will jointly explore
other areas of collaboration particularly in the area of value added
services, both in the U.S. and internationally. No other announcement
regarding the Parties or the Parties Affiliates in a press release,
conference, advertisement, announcement, professional or trade publication,
mass marketing materials or otherwise to the general public may be made
without each of the Company's and Xxxx'x prior written consent.
1.5 Permitted Disclosures. Notwithstanding any of the foregoing, (a)
the Company may disclose any of the Transaction Terms to (i) its current or
bona fide prospective investors, (ii) bona fide prospective acquirers of the
Company or any of its assets, (iii) prospective recipients of the Company's
securities in current or future acquisitions by the Company, (iv) bona fide
prospective lenders, and (v) any of its employees, investment bankers,
lenders, accountants, auditors, attorneys and other advisors in connection
with any such transactions or any of the transactions described in the
Transaction Agreements, in each case only where such persons or entities are
under reasonable nondisclosure obligations; (b) Xxxx may disclose any of the
Transaction Terms to bona fide prospective acquirers of all or a part of
Xxxx'x Shares who at the time of such disclosure would be permitted to
acquire such Shares in a Transfer made in accordance with the Stockholders
Agreement or this Agreement, with any required consent of the Company
obtained prior to such disclosure, and any of its employees, investment
bankers, lenders, accountants, auditors, attorneys and other advisors in
connection with any such transaction or any of the transactions described in
the Transaction Agreements, in each case only where such persons or entities
are under reasonable nondisclosure obligations; (c) the Company and Xxxx may
disclose (other than in a press releases or other public announcements
described in Section 1.4 above) only (i) the fact that Bell has invested the
subscribed amount in the Company, (ii) Xxxx'x percentage ownership in the
Company, and/or (iii) the fact that Bell is the Company's exclusive strategic
partner in its VoIP service offering in the United States and its preferred
VoIP partner internationally, and that Bell and the Company will jointly
explore other areas of collaboration particularly in the area of value added
services, both in the U.S. and internationally; and (d) the Company and Bell
shall have the right to disclose to third parties any information regarding
the Transaction Terms disclosed in a press release or other public
announcement made in compliance with Section 1.4. Notwithstanding anything
else in this Agreement, including the immediately preceding sentence, none of
the terms and conditions of the Master Supply Agreement, the commercial
relationship established thereunder and any Confidential Information relating
thereto can be disclosed without Xxxx'x prior written consent; provided,
that, the redacted version of the Master Supply Agreement attached hereto as
Schedule 1.5 (the "Redacted MSA") may be disclosed by the Company to any of
the persons or entities set forth in clause (a) of the preceding sentence, in
each case only where such persons or entities are under reasonable
nondisclosure obligations; provided further, that if the Redacted MSA fails
to contain terms of the Master Supply Agreement that the Company, in the
reasonable opinion of the Company's legal counsel, is required to disclose to
such persons or entities under applicable law, the Company may disclose such
terms with the prior written consent of Bell, acting reasonably, to such
persons or entities that are under reasonable nondisclosure obligations after
having provided Bell with reasonable advance notice (and reasonable
opportunity to comment) setting forth in sufficient detail the nature of the
requirement under applicable law and a copy of the document containing such
terms; provided further, that the Company may incorporate, to the extent
reasonable and necessary, the economic terms of the Master Supply Agreement
into financial models prepared by the Company for such persons or entities
and deliver such financial models to such persons or entities that are under
reasonable nondisclosure obligations.
1.6 Compelled Disclosure. In the event that (i) any action, suit,
proceeding or claim is brought or asserted against the Receiving Party or any
of its Representatives seeking to compel the disclosure of any of the
Confidential Information, or (ii) the Receiving Party otherwise becomes
legally compelled (including, without limitation, pursuant to U.S. federal
and state and Canadian securities laws and/or other applicable regulatory
laws) or compelled
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pursuant to the rules of any stock exchange or market on which the Company's
or Xxxx'x securities are listed, in the reasonable opinion of the Receiving
Party's legal counsel, to disclose any of the Confidential Information, the
Receiving Party shall provide, to the extent legally permitted to do so, the
Disclosing Party with prompt written notice of such action, suit, proceeding,
claim or other event of legal compulsion so that the Disclosing Party may
seek a protective order or seek confidential treatment of such Confidential
Information. In the event that such protective order or confidential
treatment is not obtained by the Disclosing Party for any reason, the
Receiving Party agrees to furnish only that portion of the Confidential
Information which, in the reasonable opinion of the Receiving Party's legal
counsel, is required. To the extent legally permitted to do so, the Receiving
Party will permit the Disclosing Party a reasonable opportunity to review and
comment on the form and content of any Confidential Information that will be
disclosed pursuant to this Section; provided, that, the Receiving Party shall
not be required to make any changes to the form and content of any
Confidential Information that will be disclosed pursuant to this Section
requested by the Disclosing Party based on such review or comments. In any
event, the Receiving Party will not oppose action by the Disclosing Party to
obtain an appropriate protective order or other reliable assurance that
confidential treatment will be accorded to the Confidential Information.
Notwithstanding the foregoing, to the extent required to be disclosed by the
Company under 47 CFR 1.2112(a), the number of shares held by Bell and the
percentage interest of Bell in the Company may be disclosed by the Company
without the requirement for the consent of Bell or procedures set forth in
this Section 1.6.
1.7 Other Confidentiality Agreements. With respect to any
information exchanged between the Parties and/or the Parties Affiliates that
is Confidential Information under this Section 1, this Section 1 shall
supersede and replace that certain Confidentiality Agreement, dated November
29, 2004 (the "Confidentiality Agreement") executed among the Company, NR
Communications, LLC and Bell. Additionally, the Company and ERH agree that
neither of them shall enforce, and hereby expressly waive, the
confidentiality terms set forth in Section 13.15 of the Stockholders
Agreement nor any similar confidentiality obligation or restriction contained
in any of the Transaction Agreements (except for this Agreement), against
Bell. Notwithstanding the foregoing, the confidentiality provisions set forth
in the Master Supply Agreement shall be in addition to, and shall not be
limited or modified in any way by, the terms of this Agreement; provided,
that, nothing in the Master Supply Agreement shall have the effect of
preventing or otherwise limiting the disclosures of Confidential Information
permitted under Sections 1.4, 1.5 and 1.6 of this Agreement.
2. Right to Board Seat
2.1 Nomination of Bell Director. In connection with each election of
directors of the Company, unless Bell otherwise instructs the Company in
writing, the Company shall nominate the then Chief Executive Officer ("CEO")
of BCE Inc. ("Bell Director") to serve as a director of the Company,
provided, however, that if the directors of the Company reasonably determine
that (a) compliance with the terms of this Section 2.1 is prohibited in the
exercise of their fiduciary duties, or (b) the Company reasonably determines
that compliance with the terms of this Section 2.1 is prohibited under (i)
applicable securities laws, (ii) stock exchange or stock market rules and
regulations or (iii) Delaware law, then the Company will so notify Bell and,
if so requested by Bell, following a determination under (b) above only, will
provide an opinion from the Company's legal counsel confirming that they or
it are so prohibited and the Company will, for and only for the duration of
such prohibition, be excused from complying with the terms of this Section
2.1.
2.2 Election of Director. In any election of directors of the
Company, each XxXxx Entity (including without limitation ERH) shall vote all
of its Shares in favor of the election of the Bell Director, it being
understood that the initial Bell Director, to be elected immediately
following the execution and delivery of this Agreement, shall be Xxxxxxx X.
Xxxxx, provided, however, that if the Company reasonably determines that
compliance with the terms of this
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Section 2.2 is prohibited under (i) applicable securities laws or (ii) stock
exchange or stock market rules and regulations, then the Company will so
notify Bell and, if so requested by Bell, will provide an opinion from the
Company's legal counsel confirming that they or it are so prohibited and the
XxXxx Entities will, for and only for the duration of such prohibition, be
excused from complying with the terms of this Section 2.2.
2.3 Removal and Replacement of Bell Director. Each XxXxx Entity
(including without limitation ERH) agrees not to vote to remove the Bell
Director unless he or she ceases to be the CEO of BCE Inc. In the event that
the Bell Director ceases to serve as a member of the Board of Directors of
the Company ("Board") during his or her term in office as a result of he or
she ceasing to be the CEO of BCE Inc., and for so long as Bell has the right
to nominate the Bell Director pursuant to Sections 2.1 or 2.2, the resulting
vacancy on the Board shall be filled by the new CEO of BCE Inc. as the Bell
Director, upon notice of Bell to the Company to that effect. Each XxXxx
Entity (including without limitation ERH) agrees to use commercially
reasonable efforts and take all action within its power, including, but not
limited to, the voting of Voting Shares, to cause the removal of the Bell
Director as provided above, and to cause the election of the new CEO of BCE
Inc. as the Bell Director as soon as possible after receipt of notice of Bell
to the Company to that effect. If there is a vacancy in the Bell Director
seat for any reason and Bell does not notify the Company as provided above
that such vacancy is to be filled by the CEO of BCE Inc. on or before the
date which is 90 days after the date such seat first becomes vacant, the
rights and obligations of the Company, Bell and the XxXxx Entities (including
without limitation ERH) under this Section 2 shall terminate and be of no
further force or effect.
2.4 Termination of Right to Board Seat. The effectiveness of this
Section 2 shall be terminated upon the earliest to occur of (i) the date that
Bell and the Bell Affiliates cease to own, either directly or indirectly, in
the aggregate, Shares representing at least 5% of the Voting Shares of the
Company, (ii) the date that Bell and the Bell Affiliates cease to own, either
directly or indirectly, in the aggregate, Shares representing at least 50% of
the Shares of the Company purchased under the Subscription Agreement (as
adjusted for any Recapitalization Event (as defined below)), or (iii) the
date upon which any competitor of the Company or the Company Affiliates
acquires control of Bell or BCE Inc. For greater certainty, the effectiveness
of this Section 2 shall not terminate upon the closing of the Company's IPO.
3. Observation Rights.
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4. Disclaimer of Corporate Opportunity Doctrine. The Company acknowledges
that Bell and the Bell Affiliates will likely have, from time to time,
information that may be of interest to the Company ("Business Information")
regarding a wide variety of matters. The Company, as a material part of the
consideration for this Agreement agrees that Bell, the Bell Affiliates and the
Observers shall have no duty to disclose any Business Information to the Company
or permit the Company to participate in any projects, business or investments
based on any Business Information, or to otherwise take advantage of any
opportunity that may be of interest to the Company if it were aware of such
Business Information, and hereby waives, to the extent permitted by law, any
claim based on the corporate opportunity doctrine or otherwise that could limit
Xxxx'x or Bell Affiliates' ability to pursue opportunities based on such
Business Information or that would require Bell, the Bell Affiliates or the
Observers to disclose any such Business Information to the Company or offer any
opportunity relating thereto to the Company. The Company agrees that the Bell
Director shall have no obligations to the Company, including obligations or
duties to disclose any Business Information, other than the obligations and
duties imposed on the Bell Director as a director of the Company under Delaware
law.
5. Restrictions on Exercise of Drag Along Right Against Bell.
5.1 Notwithstanding Section 6 of the Stockholders Agreement, the
Company and the XxXxx Entities (including without limitation ERH) agree and
acknowledge that Bell shall have no obligation to take any action specified
under Section 6 of the Stockholders Agreement in connection with the exercise
of the Drag Along Right or any event giving rise to a Drag Along Right unless
each of the following conditions is satisfied:
(i) The Selling XxXxx Entity shall be required to commit to a Transfer
in a bona fide arm's length transaction with a Person that is not an
Affiliate of the XxXxx Entities (including without limitation ERH).
(ii) The only representations, warranties or covenants that Bell shall be
required to make in connection with a Transfer giving rise to a Drag
Along Right (such Transfer, a "Company Sale") are representations
and warranties with respect to its own ownership of the Company's
securities to be sold by it and its ability to convey title thereto
free and clear of liens, encumbrances or adverse claims and
reasonable covenants regarding confidentiality, publicity and
similar matters.
(iii) The liability of Bell with respect to any representation and
warranty or covenant made by the Company in connection with a
Company Sale shall be several and not joint with any other person.
Such liability shall be limited to Xxxx'x pro rata share of the
aggregate consideration payable to all stockholders of the Company
in the Company Sale, which may be held in escrow for a period not to
exceed 12 months from the closing date of the Company Sale.
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(iv) Bell shall not be required to amend, extend or terminate any
contractual or other relationship with the Company, the acquirer or
their respective Affiliates.
(v) Bell shall not be required to agree to any covenant not to compete
or covenant not to solicit customers, employees or suppliers of any
party to the Company Sale; provided, that, for the avoidance of
doubt, any such obligations under the Master Supply Agreement shall
survive the Company Sale, unless the Master Supply Agreement is
terminated according to its terms.
5.2 Bell will not be bound by the Drag Along Right following any
assignment of the Drag Along Right (by operation of law or otherwise) by any
XxXxx Entity (including without limitation ERH) unless the Person to whom
such right is assigned shall have executed a written agreement, substantially
in the form of this Agreement, pursuant to which such Person becomes a party
to this Agreement and agrees to be bound by all the provisions hereof.
5.3 Bell will not be bound by the Drag Along Right if any XxXxx
Entity (including without limitation ERH) takes or consents to any action
that results in the ability of any Person not a party to this Agreement to
exercise the Drag Along Right against Bell, unless such Person shall have
executed a written agreement, substantially in the form of this Agreement,
pursuant to which such Person becomes a party to this Agreement and agrees to
be bound by all the provisions hereof.
6. Representations, Warranties and Covenants.
6.1 Representations and Warranties of the Company and ERH. Each of
the Company and ERH represent and warrant, severally but not jointly, as
follows:
(a) Such entity is duly organized and existing under the laws of the
jurisdiction under which such entity is organized and is in good
standing under such laws. Such entity has requisite power and
authority to own and operate its properties and assets, and to carry
on its business as presently conducted and as proposed to be
conducted.
(b) Such entity has all requisite power and authority to execute and
deliver this Agreement and to carry out and perform its obligations
under the terms of this Agreement.
(c) All action on the part of such entity (and its officers, directors,
stockholders, managers or members, as applicable) necessary for the
authorization, execution, delivery and performance by such entity,
respectively, of this Agreement have been taken on or prior to the
date hereof. This Agreement, when executed and delivered by such
entity shall constitute the valid and binding obligations of such
entity, enforceable in accordance with its terms, subject to laws of
general application relating to bankruptcy, insolvency and the
relief of debtors and rules of law governing specific performance,
injunctive relief or other equitable remedies.
6.2 Additional Representation and Warranty of ERH. ERH represents
and warrants that, as of the date hereof, ERH owns the number of shares of
the Company listed on Schedule 6.2 attached hereto, free and clear of liens
or encumbrances, and has not, prior to or on the date of this Agreement,
executed or delivered any proxy or entered into any other voting agreement or
similar arrangement other than the Stockholders Agreement and this Agreement.
As of the date hereof, no other XxXxx Entity owns any voting or economic
interest in the Company.
6.3 Transaction Documents. For so long as the Stockholders Agreement
remains in effect, in addition to, and not in substitution for, any
information or related rights granted in the Transaction Documents or
otherwise, the Company agrees to provide Bell with copies of
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current versions of the Transaction Documents (fully executed) and the
Company's Certificate of Incorporation (file-stamped), in each case,
reflecting all amendments and restatements thereto through such date of
request, promptly following a request by Bell, if any of such Transaction
Documents or Certificate of Incorporation have been amended since the Company
last provided copies thereof.
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8. Prohibitions and Restrictions on Certain Sales of Company Securities.
8.1 Prohibition on Certain Sales of Company Securities to XxXxx
Entities. Notwithstanding anything to the contrary in the Stockholders
Agreement the Company shall not issue or sell any Shares of any class of
capital stock of the Company or any other equity securities of the Company,
or any securities or instruments convertible into or exchangeable or
exercisable for, directly or indirectly, any Shares or any other equity
securities of the Company (collectively, "Company Securities"), to any XxXxx
Entity (including without limitation ERH) for a price per share (calculated
on an as-if converted into or exercised or exchanged for Class A Shares of
the Company basis) less than the Original Issue Price (as proportionately
adjusted for any Recapitalization Event), except pursuant to (i) exercises by
the XxXxx Entities of their preemptive rights pursuant to Section 1 of the
Stockholders Agreement in circumstances where Bell is also entitled to
exercise those rights, and exercises by ERH or any other XxXxx Entities of
its preemptive rights pursuant to Section 11 of this Agreement in
circumstances where Bell is also entitled to exercise those rights, and (ii)
any exercises or conversion by any XxXxx Entities of any Options or
Convertible Securities held by the XxXxx Entities as of the date hereof.
8.2 Prohibition on Certain Sales of Company Securities to
Competitors of Bell. Notwithstanding anything to the contrary in the
Stockholders Agreement, the Company shall not issue, sell, assign, dispose
of, pledge or otherwise Transfer any Company Securities or any debt of the
Company to any Canadian competitor of Bell set forth on Schedule 8.2 attached
hereto or any Affiliate, assignee or successor of any Canadian competitor of
Bell set forth on Schedule 8.2 (each a "Bell Competitor*), as such Schedule
may be updated from time to time upon mutual agreement of the Parties.
Additionally, the Company shall not borrow any capital from any Bell
Competitor. Notwithstanding the foregoing, the Company may sell any of its
securities to a Bell Competitor in a public offering registered under the
Act, provided that the Company cannot solicit any Bell Competitor. The
effectiveness of this Section 8.2 shall be terminated upon the date that Bell
and the Bell Affiliates cease to own, either directly or indirectly, in the
aggregate, Shares representing at least 50% of the Shares of the Company
purchased under the Subscription Agreement (as adjusted for any
Recapitalization Event (as defined below)).
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8.3 Right of First Refusal with Respect to Sales of Company
Securities by any XxXxx Entity to Bell Competitors. Notwithstanding anything
to the contrary in the Stockholders Agreement, with respect to any Transfer
by any XxXxx Entity (including without limitation ERH) of any of its Company
Securities, or securities of ERH (or any other XxXxx Entities that owns,
directly or indirectly, more than five percent (5%) of the outstanding
Company Securities or, if less than five percent (5%), represents its primary
asset) ("XxXxx Securities"), to a Xxxx Competitor, Xxxx shall have, and the
XxXxx Entities hereby irrevocably grant to Xxxx, the rights (the "Competitor
Right of First Refusal") described in this Section 8.3.
(a) Any XxXxx Entity (the "Selling XxXxx Entity") that desires to
Transfer any of its Company Securities or XxXxx Securities in
compliance with this Section 8.3 must first receive a bona fide,
written offer ("Competitor Offer") from the applicable Xxxx
Competitor for the acquisition of any or all of the Selling XxXxx
Entity's Company Securities or XxXxx Securities. Upon receipt and
acceptance of a Competitor Offer that the XxXxx Entity intends to
accept, the Selling XxXxx Entity shall give written notice (the
"Competitor ROFR Notice") to Xxxx stating that the Selling XxXxx
Entity intends to Transfer Company Securities or XxXxx Securities to
a Xxxx Competitor. The Competitor ROFR Notice shall identify the
Xxxx Competitor, specify the type and number of Company Securities
or XxXxx Securities to be Transferred to the Xxxx Competitor (the
"Competitor ROFR Securities"), specify the aggregate and per share
price (in cash or other consideration) (the "Competitor Sale Price")
that the Xxxx Competitor has agreed to pay for the Competitor ROFR
Securities, and enclose an accurate summary of all other material
terms and conditions of the proposed Transfer.
(b) The Competitor ROFR Notice shall constitute the Selling XxXxx
Entity's binding offer to sell the Competitor ROFR Securities to
Xxxx on the terms set forth in the Competitor ROFR Notice and this
Agreement. Xxxx shall have 10 business days after delivery of the
Competitor ROFR Notice (the "Competitor ROFR Exercise Period") to
exercise its right to purchase all, but not less than all of, the
Competitor ROFR Securities at the Competitor Sale Price and upon the
other terms and conditions set forth in the Competitor ROFR Notice
by written notice to the Selling XxXxx Entity within the Competitor
ROFR Exercise Period, provided that such written notice may provide
that the exercise of the Competitor Right of First Refusal by Xxxx
is subject to obtaining the required regulatory approvals, for which
Xxxx is using commercially reasonable efforts to satisfy the
requirements as soon as reasonably practicable.
(c) Failure to deliver such notice within the Competitor ROFR Exercise
Period shall constitute a waiver of the Competitor Right of First
Refusal with respect to the Competitor ROFR Securities, and the
Selling XxXxx Entity shall have ninety (90) business days thereafter
to complete the Transfer of the Competitor ROFR Securities to the
Xxxx Competitor on substantially the same terms set forth in the
Competitor Offer; otherwise, the Competitor ROFR Securities
thereupon be again subject to the right of first refusal described
in this Section 8.3 before any Transfer can be made.
(d) Delivery of a notice exercising the Competitor Right of First
Refusal shall create a binding contract between the Selling XxXxx
Entity and Xxxx for the purchase and sale of the Competitor ROFR
Securities at the Competitor Sale Price and on the terms and
conditions in the Competitor Offer, as described in the summary
provided in the Competitor ROFR Notice, and this Section 8.3. In
that event, Xxxx shall deliver the Competitor Sale Price for the
Competitor ROFR Securities, in immediately available funds, to the
Selling XxXxx Entity to effectuate the Transfer of the Competitor
ROFR Securities within five business days after the end of the
Competitor ROFR Exercise Period or the satisfaction of the
conditions to closing contained in the Competitor ROFR Notice;
provided that Xxxx is using commercially
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reasonable efforts to cause such condition to be satisfied as soon
as reasonably practicable. The Selling XxXxx Entity shall effectuate
the Transfer of the Competitor ROFR Securities by promptly
delivering to Xxxx (and/or the applicable Affiliate of Xxxx) one or
more certificates, properly endorsed for transfer, that represent
the Competitor ROFR Securities, together with stock powers and such
other closing documentation that Xxxx (and/or the applicable
Affiliate of Xxxx) may reasonably request. The Company and the XxXxx
Entities (including without limitation ERH) agree to consent as
required under the Stockholders Agreement to any Transfer by a XxXxx
Entity to Xxxx or its Affiliates under this Section 8.3.
9. Change of Control Not a Repurchase Event. The Company and the XxXxx
Entities (including without limitation ERH) agree to consent under Section 7 of
the Stockholders Agreement to a Change of Control of BCE Inc. or Bell so that it
does not constitute a Repurchase Event with respect to any Stock held by Bell or
the Xxxx Affiliates.
10. Permitted Transfers. The Company and the XxXxx Entities (including without
limitation ERH) agree to consent to any Transfers of any or all of Xxxx'x and
the Xxxx Affiliates' Company Securities between or among Xxxx and/or the Xxxx
Affiliates who qualify as Qualified Transferees and who agree in writing to be
bound by the terms of the Stockholders Agreement and this Agreement, so that
such Transfers qualify as Permitted Transfers; provided, that the maximum number
of transferees permitted under this Section 10 shall not exceed five (5).
11. ***
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***
***
13. Definition of Transfer. Notwithstanding anything to the contrary in this
Agreement or the Stockholders Agreement, the definition of Transfer for all
purposes of this Agreement shall be the definition of Transfer set forth in
Section 4.01 of the Stockholders Agreement without regard to Section 4.03 of the
Stockholders Agreement.
14. Termination of Restrictions on Transfer in Stockholders Agreement.
14.1 Company Default under Master Supply Agreement. Notwithstanding
anything to the contrary in the Stockholders Agreement, if the Company
terminates the Master Supply Agreement for any reason (other than due to a
breach of or default under the Master Supply Agreement by Xxxx) or breaches
or is in default under the Master Supply Agreement and such breach or default
(i) is not curable or, if curable, is not cured in compliance with and within
the time period applicable under the Master Supply Agreement and (ii) would
give Xxxx a basis for terminating the Master Supply Agreement (a "Company
Breach"), none of the Company, the Company Affiliates and the XxXxx Entities
(including without limitation ERH) will enforce the provisions of Sections 4
and 5 of the Stockholders Agreement with respect to any Transfer of Company
Securities by Xxxx and the Xxxx Affiliates, and hereby expressly consent
thereto, except as otherwise provided in Section 14.3 below; provided, that
(a) the transferee agree to become bound by the terms of the Stockholders
Agreement prior to such Transfer and (b) for any Transfer to which this
Section 14.1 applies as the result of a Company Breach, Xxxx or the Xxxx
Affiliate making such Transfer, provides (x) prior written notice to the
Company of the existence of a Company Breach, including the grounds upon
which such claim of a Company Breach is based, (y) if curable under the
Master Supply Agreement, an opportunity to cure such Company Breach as
provided in the Master Supply Agreement, and (z) prior written notice of the
intent to Transfer Shares if such Company Breach is not cure during the cure
period, if any.
13
14.2 Sale to VoIP Service Provider. Notwithstanding anything to the
contrary in the Stockholders Agreement, if any Person that as a material part
of its activities in the United States markets, provides or supports Voice
over Internet Protocol services, and/or any Affiliate(s) of such a Person,
acquires or holds a majority of the outstanding voting power of the Company
or ERH, none of the Company, the Company Affiliates and the XxXxx Entities
(including without limitation ERH) will enforce the provisions of Sections 4
and 5 of the Stockholders Agreement with respect to any Transfer of Company
Securities by Xxxx and the Xxxx Affiliates, and hereby expressly consent
thereto, except as otherwise provided in Section 14.3 below; provided, that
the transferee agree to become bound by the terms of the Stockholders
Agreement prior to such Transfer.
14.3 Sales by Xxxx to Company Competitors. Notwithstanding Sections
14.1 or 14.2 of this Agreement, if Xxxx and/or the Xxxx Affiliates desire to
Transfer all or any part of their Company Securities to any person or entity
a significant portion of its business consists (or is expected to consist) of
the provision of fixed wireless broadband services or equipment of the type
delivered by the Company in the United States, then Section 5.01 of the
Stockholders Agreement shall apply to such Transfer.
15. Notice of Certain Potential Transactions. So long as Xxxx and the Xxxx
Affiliates own, in the aggregate, directly or indirectly, Company Securities
representing at least 5% of the Voting Shares of the Company, (A) the XxXxx
Entities shall provide prompt written notice to Xxxx each time any of the
following occurs: (i) any of the XxXxx Entities receives an offer from, or
enters into material or substantive discussions with, any entity regarding a
possible transaction that, if consummated, would permit such XxXxx Entity to
exercise its Drag Along Right on Xxxx'x Shares, but with respect to offers, only
if and at such time as such XxXxx Entity enters into material or substantive
discussions with the entity, (ii) the CEO or President of any one of the XxXxx
Entities authorizes or intends to seek authority from the board of directors of
any XxXxx Entity to authorize any of the XxXxx Entities to enter into a sale
process for the purposes of completing a transaction that, if consummated, would
permit any such XxXxx Entity to exercise its Drag Along Right on Xxxx'x Shares,
and (B) the Company shall provide prompt written notice to Xxxx each time any of
the following occurs: (i) the Company receives an offer from, or enters into
material or substantive discussions with, any entity regarding a possible
transaction that, if consummated, would either result in a Change of Control of
the Company or permit any one of the XxXxx Entities to exercise its Drag Along
Right on Xxxx'x Shares, but with respect to offers, only if and at such time as
the Company enters into material or substantive discussions with the entity,
(ii) the CEO or President of the Company authorizes or intends to seek authority
from the Board to authorize the Company to enter into a sale process for the
purposes of completing a transaction that, if consummated, would either result
in a Change of Control of the Company or permit any of the XxXxx Entities to
exercise its Drag Along Right on Xxxx'x Shares. Following any of notifications
as provided above, subject to the limitations under any confidentiality
agreements entered into with third parties, the Company and/or the XxXxx
Entities, as applicable, will provide Xxxx with a reasonable opportunity to
engage in the process, at Xxxx'x option; provided, that, the foregoing shall not
require the Company and/or the XxXxx Entities to delay the acceptance of any
offer beyond any deadline associated with such offer or to otherwise take any
action that would materially prejudice the ability of the Company and/or the
XxXxx Entities to enter into the transaction that is the subject of a
notification under this Section 15..
16. Limitations with Respect to XxXxx Entities. Commencing on the date of this
Agreement and continuing thereafter for so long as the XxXxx Entities hold a
majority of the voting power of the Company, no XxXxx Entity (including without
limitation ERH and Xxxxx X. XxXxx, but excluding ICO Global Communications and
the Company) will acquire more than a ten percent (10%) passive equity interest
in any company (excluding ICO Global Communications and the Company) for whom a
significant portion of its business consists (or is expected to consist) of the
provision of fixed wireless broadband services or equipment of the type
delivered by the Company in the United States, unless the applicable XxXxx
Entity has first made the opportunity
14
available to the Company and the Company's independent directors have decided to
direct the Company not to pursue the opportunity.
17. Miscellaneous.
17.1 Term and Termination. The term of this Agreement shall begin on
the date of this Agreement and shall terminate on the latest to occur of the
following: (i) the Master Supply Agreement terminates, or (ii) Xxxx and the
Xxxx Affiliates own no Shares of the Company.
17.2 Successors and Assignees. Except as otherwise provided in this
Agreement, the terms and conditions of this Agreement shall inure to the
benefit of and be binding upon the respective successors and assigns of the
Parties (including any Permitted Transferees of all or substantially all of
Xxxx'x or ERH's Shares). As a closing condition to any Transfer of Shares by
any Party to this Agreement (including, without limitation, any XxXxx
Entity), the transferee of such Shares shall agree in writing to be bound by
this Agreement and the Stockholders Agreement. In addition, the Company and
ERH agree that as a condition precedent of any XxXxx Entity becoming the
holder of any Share, it will obtain that such XxXxx Entity agrees to be bound
by this Agreement and the Stockholders Agreement, and Xxxx agrees that as a
condition precedent of any Xxxx Affiliate becoming the holder of any Share,
it will obtain that such Xxxx Affiliate agrees to be bound by this Agreement
and the Stockholders Agreement.
17.3 Notices. All notices, requests, demands, instructions, documents
and other communications to be given under this Agreement to any party shall
be in writing and sent to the address/fax number set forth on the signature
page below (provided that any party may at any time change its address for
notice or other such information by giving written notice thereof in writing
to the other parties hereto).
17.4 Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of Delaware.
17.5 Amendment and Waiver. This Agreement may not be amended or
modified without the written consent of the Parties. No waiver of any
provision of this Agreement shall be binding unless and until set forth
expressly in writing and signed by the waiving party. The waiver by any party
hereto of a breach of any provision of this Agreement shall not operate or be
construed as a waiver of any preceding or succeeding breach of the same or
any other term or provision, or a waiver of any contemporaneous breach of any
other term or provision, or a continuing waiver of the same or any other term
or provision. Notwithstanding anything to the contrary in this Agreement or
the Stockholders Agreement, the Stockholders Agreement shall not be amended
or modified without the prior written consent of Xxxx and no waiver of any
term or provision of the Stockholders Agreement shall be effective against
Xxxx without the prior written consent of Xxxx.
17.6 Specific Performance. The Parties acknowledge that it will be
impossible to measure in money the damage to them caused by any failure to
comply with the covenants set forth in this Agreement, that each such
covenant is material, and that in the event of any such failure, the injured
party will not have an adequate remedy at law or in damages. Therefore, the
Parties consent to the issuance of an injunction or the enforcement of other
equitable remedies against them at the suit of the other, without bond or
other security, to compel performance of all of the terms of this Agreement,
and waive the defense of the availability of relief in damages.
17.7 Severability. If any provision of this Agreement shall be declared
void or unenforceable by any judicial or administrative authority, the
validity of any other provision and of the entire Agreement shall not be
affected thereby.
15
17.8 Enforceability; Conflicts. In all events, the terms and provisions
of this Agreement shall be enforceable notwithstanding any conflicting term
or provision set forth in any of the other Transaction Agreements. In the
event of any conflict between any term or provision of this Agreement and any
term or provision set forth in any of the other Transaction Agreements, such
term or provision of this Agreement shall prevail over such term or provision
set forth in any of the other Transaction Agreements.
17.9 No Impairment. Each of the Parties hereto agree not to, by
amendment of the Company's Certificate of Incorporation or Bylaws or through
any reorganization, recapitalization, transfer of assets, consolidation,
merger, dissolution, issue, sale or transfer of securities or any other
voluntary action, avoid or seek to avoid the observance or performance of any
of the terms of this Agreement, but will at all times in good faith assist in
the carrying out of all such terms and in the taking of all such action as
may be necessary or appropriate in order to protect the rights granted herein
against impairment.
17.10 Further Assurances. Each of the Parties hereto shall execute and
deliver all additional documents and instruments and shall do any and all
acts and things reasonably requested in connection with the performance of
the obligations undertaken in the Agreement or otherwise to effectuate in
good faith the intent of the Parties.
17.11 Counterparts. This Agreement may be executed in counterparts,
each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
17.12 Entire Agreement. This Agreement, the Transaction Agreements and
the documents referred to herein and therein constitute the entire agreement
among the Parties with respect to the subject matter hereof and thereof and
no Party shall be liable or bound to any other Party in any manner by any
warranties, representations, covenants or agreements except as specifically
set forth herein or therein.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK.]
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IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement
as of the day and year first above written.
CLEARWIRE CORPORATION Address:
By: /s/ Xxx Xxxxx 0000 Xxxx Xxxxxxxxxx Xxxxxxxxx XX, Xxxxx
----------------------------- 300
Name: Xxx Xxxxx Xxxxxxxx, XX 00000
Title: Executive Vice President Attention: Vice President of Legal Affairs
EAGLE RIVER HOLDINGS, LLC Address:
(f/k/a COM Holdings, LLC)
By: Eagle River, Inc., a Washington
Corporation, its Manager
By: /s/ Xxx Xxxxx
----------------------------
Name: Xxx Xxxxx
Title: President
Agreed and Accepted:
XXXX CANADA Address:
0000, Xx Xx Xxxxxxxxxxx Xxxxxx West,
By: /s/ J. Xxxxxx Xxxxxxxx Suite 3700
----------------------------- Montreal, Quebec
Name: J. Xxxxxx Xxxxxxxx X0X0X0
Title: SVP Technology Attention: Chief Legal Officer, Xxxx Canada
With copy by e-mail to:
xxxxx.xxxxxxx@xxxx.xx and
xxxxxx.xxxxxxx@xxxx.xx
SIGNATURE PAGE TO
SIDE AGREEMENT BETWEEN
XXXX CANADA, CLEARWIRE CORPORATION,
AND EAGLE RIVER HOLDINGS, LLC
