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EXHIBIT 4.2
REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT, dated as of April 1, 1999, by Nucentrix
Broadband Networks, Inc., a Delaware corporation (the "Company"), for the
benefit of the persons listed on Annex A hereto (the "Initial Holders") who have
executed and delivered to the Company a counterpart signature page hereto or a
Stockholder Representation and Request requesting inclusion in the Registration
Statement of shares of Common Stock, and their Permitted Transferees .
W I T N E S S E T H:
WHEREAS, the Company filed a Plan of Reorganization under Chapter 11 of
the United States Bankruptcy Code on January 19, 1999 (the "Plan");
WHEREAS, the Company has issued to the Initial Holders shares (the
"Common Shares") of its common stock, par value $.001 per share ("Common
Stock"), in accordance with the terms and subject to the conditions set forth in
the Plan, and
WHEREAS, in order to induce the Initial Holders to accept the
unregistered Common Shares, the Company has agreed to provide registration
rights with respect to the Common Shares.
NOW, THEREFORE, in consideration of the premises and the covenants
hereinafter contained, it is agreed as follows:
1. Definitions. Unless otherwise defined herein, the following terms shall
have the following respective meanings (such meanings being equally applicable
to both the singular and plural form of the terms defined):
"Agreement" shall mean this Registration Rights Agreement, including all
amendments, modifications and supplements, and any annexes, exhibits or
schedules to any of the foregoing, and shall refer to this Agreement as the same
may be in effect at the time such reference becomes operative.
"Business Day" shall mean any day other than a Saturday, a Sunday, or
other day on which banking institutions in the City of Dallas, Texas or New
York, New York shall be permitted or required by law or executive order to be
closed.
"Closing Date" shall mean the date on which the Common Shares shall be
issued by the Company to the Initial Holders in accordance with the Plan.
"Commission" shall mean the Securities and Exchange Commission or any
other federal agency then administering the Securities Act and other federal
securities laws.
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"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended, or any successor federal statute, and the rules and regulations of the
Commission thereunder, all as the same shall be in effect from time to time.
"Holders" shall mean the Initial Holders who have executed and delivered
to the Company a counterpart signature page hereto or a Stockholder
Representation and Request requesting inclusion in the Registration Statement of
shares of Common Stock, and each Permitted Transferee.
"NASD" shall mean the National Association of Securities Dealers, Inc.,
or any successor corporation thereto.
"Permitted Transferee" shall mean a transferee or assignee of
Registrable Securities, which were transferred or assigned pursuant to Section 7
hereof.
"Registrable Securities" shall mean the Common Shares, and any other
securities issued or issuable with respect to such Common Shares by way of
dividend or stock split or in connection with any combination of shares of
Common Stock, recapitalization, exchange, merger, consolidation or
reorganization; provided, that any Registrable Security shall cease to be a
Registrable Security when (i) a registration statement covering such Registrable
Security has been declared effective by the Commission and it has been disposed
of pursuant to such effective registration statement, (ii) it is sold under
circumstances in which all of the applicable conditions of Rule 144 (or any
similar provisions then in force) under the Securities Act are met or (iii)(x)
it has been otherwise transferred, (y) the Company has delivered a new
certificate or other evidence of ownership for it not bearing a legend
restricting further transfer and (z) it may be resold without subsequent
registration under the Securities Act.
"Securities Act" shall mean the Securities Act of 1933, as amended, or
any successor federal statute, and the rules and regulations of the Commission
thereunder, all as the same shall be in effect from time to time.
2. Registration.
(a) The Company shall, at its cost, as promptly as commercially
practicable (but in no event later than 22 days after the effective date of the
Plan) file with the Commission and thereafter shall use its commercially
reasonable best efforts to cause to be declared effective a registration
statement (the "Shelf Registration Statement" or the "Registration Statement")
on an appropriate form under the Securities Act relating to the offer and sale
of the Registrable Securities by the Holders therefor from time to time in
accordance with the methods of distribution set forth in the Shelf Registration
Statement and Rule 415 under the Securities Act (hereinafter, the "Shelf
Registration"); provided, however, that no Holder (other than an Initial Holder)
shall be entitled to have the Registrable Securities held by it covered by such
Shelf Registration Statement unless such Holder agrees in writing to be bound by
all the provisions of this Agreement applicable to such Holder as provided in a
written notice and questionnaire delivered to all Holders (including the Initial
Holders) notifying such Holders that a Shelf Registration
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Statement will be filed by the Company, requesting such information with respect
to the Holders as required to be disclosed by the Shelf Registration Statement
and setting forth a deadline for response therein (which in no event shall be
less than 30 calendar days).
(b) The Company shall use its commercially reasonable best efforts to
keep the Shelf Registration Statement continuously effective in order to permit
the prospectus included therein to be lawfully delivered by the Holders of the
relevant Registrable Securities, for a period of three years (or for such longer
period if extended pursuant to Section 3(h) below) from the date of its
effectiveness or such shorter period that will terminate when all the
Registrable Securities covered by the Shelf Registration Statement (i) have been
sold pursuant thereto or (ii) are no longer restricted securities (as defined in
Rule 144 under the Securities Act, or any successor rule thereof) (the "Shelf
Registration Period"). During the Shelf Registration Period, the Company will
have the ability to suspend the availability of the Shelf Registration Statement
for up to two periods of up to 45 consecutive days, but no more than an
aggregate of 60 days during any 365-day period. The Company shall be deemed not
to have used its commercially reasonable best efforts to keep the Shelf
Registration Statement effective during the requisite period if it voluntarily
takes any action that would result in Holders of Registrable Securities covered
thereby not being able to offer and sell such Registrable Securities during that
period, unless (i) such action is required by applicable law or (ii) upon the
occurrence of any event contemplated by section 3(b)(ii) through (iv) below,
such action is taken by the Company in good faith and for valid business reasons
(not including avoidance of the Company's obligations hereunder), so long as the
Company reasonably promptly thereafter complies with the requirements of Section
3(h) hereof, if applicable, if the Company has determined in good faith that
there are no material legal or commercial impediments to so doing.
(c) Notwithstanding any other provisions of this Agreement to the
contrary, the Company shall cause the Shelf Registration Statement and the
related prospectus and any amendment or supplement thereto, as of the effective
date of the Shelf Registration Statement, amendment or supplement, (i) to comply
in all material respects with the applicable requirements of the Securities Act
and the rules and regulations of the Commission and (ii) not to contain any
untrue statement of a material fact or omit to state a material fact required to
be stated therein or necessary in order to make the statements therein, in light
of the circumstances under which they were made, not misleading (other than with
respect to information supplied in writing by the selling Holders expressly for
use in the Shelf Registration Statement pursuant to this Agreement).
3. Registration Procedures. In connection with the Shelf Registration
contemplated by Section 2 hereof, the following provisions shall apply:
(a) The Company shall (i) furnish to each Initial Holder, prior to the
filing thereof with the Commission, a copy of the Registration Statement and
each amendment thereof and each supplement, if any, to the prospectus included
therein and shall use its commercially reasonable best efforts to reflect in
each such document, when so filed with the Commission, such comments concerning
such Initial Holder as such
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Initial Holder reasonably may propose; and (ii) include the names of the
Holders, who propose to sell Registrable Securities pursuant to the Shelf
Registration Statement, as selling securityholders.
(b) The Company shall give written notice to the Holders of the
Registrable Securities:
(i) when the Registration Statement or any amendment thereto has
been filed with the Commission and when the Registration Statement or
any post-effective amendment thereto has become effective;
(ii) of the issuance by the Commission of any stop order suspending
the effectiveness of the Registration Statement or the Company's receipt
of notice of the initiation of any proceedings for that purpose;
(iii) of the receipt by the Company or its legal counsel of any
notification with respect to the suspension of the qualification of the
Registrable Securities for sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose; and
(iv) of the happening of any event that requires the Company to make
changes in the Registration Statement or the prospectus in order that
the Registration Statement or the prospectus 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
case of the prospectus, in light of the circumstances under which they
were made) not misleading (which written notice shall be accompanied by
an instruction to suspend the use of the prospectus until the requisite
changes have been made and which need not provide any detail as to the
nature of such event).
(c) The Company shall make every commercially reasonable effort to
obtain the withdrawal, at the earliest possible time, of any order suspending
the effectiveness of the Registration Statement.
(d) The Company shall furnish to each Holder of Registrable Securities
included within the coverage of the Shelf Registration, without charge, one copy
of the Shelf Registration Statement, any post-effective amendment thereto,
including financial statements and schedules, and, if the Holder so requests in
writing, all exhibits thereto (excluding those, if any, incorporated by
reference and available on-line via XXXXX).
(e) The Company shall, during the Shelf Registration Period, deliver to
each Holder of Registrable Securities included within the coverage of the Shelf
Registration, without charge, as many copies of the prospectus (including each
preliminary prospectus) included in the Shelf Registration Statement and any
amendment or supplement thereto as such person may reasonably request. The
Company hereby consents subject to the provisions of this Agreement to the use
of the prospectus or any amendment or supplement thereto by each of the Holders
of the Registrable Securities in
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connection with the offering and sale of the Registrable Securities covered by
the prospectus or any amendment or supplement thereto.
(f) Prior to any public offering of the Registrable Securities pursuant
to the Registration Statement, the Company shall register or qualify or
cooperate with the Holders of the Registrable Securities included therein and
their respective counsel in connection with the registration or qualification of
the Registrable Securities for offer and sale under the securities or "blue sky"
laws of such states of the United States as any Holder of the Registrable
Securities reasonably requests in writing and do any and all other acts or
things necessary or advisable to enable the offer and sale in such jurisdictions
of the Registrable Securities covered by such Registration Statement; provided,
however, that the Company shall not be required to (i) qualify generally to do
business in any jurisdiction where it is not then so qualified or (ii) take any
action which would subject it to general service of process or to taxation in
any jurisdiction where it is not then so subject.
(g) The Company shall reasonably cooperate with the Holders of the
Registrable Securities to facilitate the timely preparation and delivery of
certificates representing the Registrable Securities to be sold pursuant to
Registration Statement free of any restrictive legends and in such denominations
and registered in such names as the Holders may request a reasonable period of
time prior to sales of the Registrable Securities pursuant to such Registration
Statement.
(h) Upon the occurrence of any event contemplated by paragraphs (ii)
through (iv) of Section 3(b) above during the Shelf Registration Period, the
Company shall reasonably promptly prepare and file a post-effective amendment to
the Registration Statement or a supplement to the related prospectus and any
other required document so that, as thereafter delivered to Holders of the
Registrable Securities or purchasers of Registrable Securities, the prospectus
will not contain an 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 light of the circumstances under which they were made, not
misleading. If the Company notifies the Holders of the Registrable Securities
and any known participating underwriter or broker-dealer in accordance with
paragraphs (ii) through (iv) of Section 3(b) above to suspend the use of the
prospectus until the requisite changes to the prospectus have been made, then
the Holders of the Registrable Securities and any such participating
underwriters or broker-dealers shall suspend use of such prospectus, and the
period of effectiveness of the Registration Statement provided for in Section 2
above shall be extended by the number of days from and including the date of the
giving of such notice to and including the date when the Holders of the
Registrable Securities and any known participating underwriter or broker-dealer
shall have received such amended or supplemented prospectus pursuant to this
Section 3(h).
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(i) Not later than the effective date of the Registration Statement, the
Company will provide a CUSIP number for the Common Stock, and provide printed
certificates therefor in a form eligible for deposit with The Depository Trust
Company.
(j) The Company will comply with all rules and regulations of the
Commission to the extent and so long as they are applicable to the Shelf
Registration and will make generally available to its security holders (or
otherwise provide in accordance with Section 11(a) of the Securities Act) an
earnings statement satisfying the provisions of Section 11(a) of the Securities
Act, no later than 45 days after the end of a 12-month period (or 90 days, if
such period is a fiscal year) beginning with the first month of the Company's
first fiscal quarter commencing after the effective date of the Registration
Statement, which statement shall cover such 12-month period.
(k) The Company may require each Holder of Registrable Securities to be
sold pursuant to the Shelf Registration Statement to furnish to the Company such
information regarding the Holder and the distribution of the Registrable
Securities as the Company may from time to time reasonably require for inclusion
in the Shelf Registration Statement, and the Company may exclude from the
Registration Statement the Registrable Securities of any Holder than fails to
furnish such information within a reasonable time after receiving such request.
(l) The Company shall enter into such customary agreements (including,
if requested, an underwriting agreement in customary form with managing
underwriters reasonably acceptable to the Company) and shall use commercially
reasonable best efforts to take all such other action, if any, as any Holder of
the Registrable Securities shall reasonably request in order to facilitate the
disposition of the Registrable Securities pursuant to any Shelf Registration.
(m) The Company shall (i) make reasonably available for inspection by
the Holders of the Registrable Securities, any underwriter participating in any
disposition pursuant to the Shelf Registration Statement and any attorney,
accountant or other agent retained by the Holders of the Registrable Securities
or any such underwriter all relevant financial and other records, pertinent
corporate documents and properties of the Company and (ii) cause the Company's
officers, directors, employees, accountants and auditors to supply all relevant
information reasonably requested by the Holders of the Registrable Securities or
any such underwriter, attorney, accountant or agent in connection with the Shelf
Registration Statement, in each case, as shall be reasonably necessary to enable
such persons to conduct a reasonable investigation within the meaning of Section
11 of the Securities Act; provided, however, that any information that is
designated in writing by the Company, in good faith, as confidential at the time
of delivery of such information shall be kept confidential by the Holders or any
such underwriter, attorney, accountant or agent, unless such disclosure is made
in connection with a court proceeding or required by law, or such information
becomes available to the public generally (other than because of a disclosure by
any Holder) or through a third party without an accompanying
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obligation of confidentiality and that the foregoing inspection and information
gathering (x) shall be coordinated on behalf of the Holders, by one counsel (the
"Designated Counsel") designated by the Holders of a majority of the Registrable
Securities covered by the Shelf Registration Statement and (y) shall not be
available for any such Holder that is a competitor of the Company.
(n) The Company, if requested by the Designated Counsel, shall use its
best efforts to cause (i) its counsel to deliver an opinion relating to the
Registrable Securities in customary form addressed to such Holders and the
managing underwriters, if any, thereof and, in the case of the initial opinion,
dated on or prior to the effective date of the Shelf Registration Statement (it
being agreed that the matters to be covered by such opinion shall include,
without limitation, subject to usual and customary qualifications, the due
incorporation and good standing of the Company and its significant subsidiaries;
the qualification of the Company and its subsidiaries to transact business as
foreign corporations; the due authorization, execution and delivery of the
relevant agreement of the type referred to in Section 3(l) hereof; the due
authorization, valid issuance, full payment and non-assessability of the
applicable Registrable Securities; and absence of material legal or governmental
proceedings involving the Company and its significant subsidiaries; the absence
of governmental approvals required to be obtained in connection with the Shelf
Registration Statement, the offering and sale of the applicable Registrable
Securities, or any agreement of the type referred to in Section 3(l) hereof; the
compliance in all material respects as to form of such Shelf Registration
Statement with the requirements of the Securities Act on the date it is declared
effective; and, as of the date of the opinion and as of the effective date of
the Shelf Registration Statement or the most recent post-effective amendment
thereto, as the case may be, of negative assurance with respect to the absence
from such Shelf Registration Statement and the prospectus included therein as
then amended or supplemented, of any untrue statement of a material fact or the
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading (in the case of any such
documents, in the light of the circumstances existing at the time that such
documents were filed with the Commission); (ii) its officers to execute and
deliver all customary documents and certificates and updates thereof reasonably
requested by the Designated Counsel; and (iii) its independent public
accountants to provide to the Holders of Registrable Securities and the managing
underwriter, if any, a comfort letter in customary form and covering matters of
the type customarily covered in comfort letters in connection with primary
underwritten offerings, subject to receipt of appropriate documentation as
contemplated, and only if permitted, by Statement of Auditing Standards No. 72.
(o) The Company shall use its commercially reasonably best efforts to
take all other steps necessary to effect the registration of the Registrable
Securities covered by a Registration Statement contemplated hereby.
4. Registration Expenses. The Company shall bear all fees and expenses
incurred in connection with the performance of their obligations under Section 2
and 3 hereof (including the reasonable fees and expenses, if any, of Xxxxxxx &
Xxxxx L.L.P.,
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counsel for the Initial Holders), whether or not the Shelf Registration
Statement is filed or becomes effective, and shall bear or reimburse the other
Holders of the Registable Securities covered thereby for the reasonable fees and
disbursements of Designated Counsel, if any.
5. Indemnification and Contribution.
(a) Indemnification by Company. The Company shall indemnify and hold
harmless the Holder of such Registrable Securities, its officers, directors,
partners, legal counsel, each other person (including each underwriter) who
participated in the offering of such Registrable Securities and each other
person, if any, who controls such Holder or such participating person within the
meaning of the Securities Act, against any expenses, losses, claims, damages or
liabilities, joint or several, to which such Holder, officer, director, partner,
legal counsel, or any such participating person or controlling person may become
subject under the Securities Act or any other statute or at common law, insofar
as such expenses, losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon (i) any alleged untrue statement of any
material fact contained, on the effective date thereof, in the Shelf
Registration Statement, any preliminary prospectus or final prospectus contained
therein, or any amendment or supplement thereto, (ii) any 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 the Company of
the Securities Act or any rule or regulation thereunder applicable to the
Company and relating to action or inaction required of the Company in connection
with any such registration, and shall reimburse such Holder, officer, director,
partner, legal counsel or such participating person or controlling person for
any legal or any other expenses reasonably incurred by such Holder, officer,
director, partner, legal counsel or such participating person or controlling
person in connection with investigating and defending or settling any such
expense, loss, claim, damage, liability or action; provided, however, that the
Company shall not be liable in any such case to the extent that any such loss,
claim, damage or liability arises out of or is based upon any untrue statement
or alleged untrue statement or omission or alleged omission made in the Shelf
Registration Statement, preliminary prospectus, prospectus or amendment or
supplement in reliance upon and in conformity with information furnished to the
Company by such Holder; and, provided further that the Company shall not be
liable in any such case insofar as it relates to any untrue statement or alleged
untrue statement or omission or alleged omission made in any preliminary
prospectus but eliminated or remedied in the final prospectus.
(b) Indemnification by Holders. Each Holder, by acceptance of the
Registrable Securities, agrees to indemnify and hold harmless the Company, its
directors and officers and each other person, if any, who controls the Company
within the meaning of the Securities Act against any losses, claims, damages or
liabilities, joint or several, to which the Company or any such director or
officer or any such other person may become subject under the Securities Act or
any other statute or at common law, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon
information provided in writing to the Company by such Holder and contained in
(or omitted from, as the case may be), on the effective date of, the Shelf
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Registration Statement, any preliminary prospectus or final prospectus contained
therein, or any amendment or supplement thereto.
(c) Contribution. If the indemnification provided for in this Section 5
from the indemnifying party is unavailable to an indemnified party hereunder in
respect of any losses, claims, damages, liabilities or expenses referred to
therein, then the indemnifying party, in lieu of indemnifying such indemnified
party, shall contribute to the amount paid or payable by such indemnified party
as a result of such losses, claims, damages, liabilities or expenses in such
proportion as is appropriate to reflect the relative fault of the indemnifying
party and indemnified parties in connection with the actions which resulted in
such losses, claims, damages, liabilities or expenses, as well as any other
relevant equitable considerations. The relative fault of such indemnifying party
and indemnified parties shall be determined by reference to, among other things,
whether any action in question, including any untrue or alleged untrue statement
of a material fact or omission or alleged omission to state a material fact, has
been made by, or relates to information supplied by, such indemnifying party or
indemnified parties, and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such action.
The parties hereto agree that it would not be just and equitable if
contribution pursuant to this Section 5(c) were determined by pro rata
allocation or by any other method of allocation which does not take account of
the equitable considerations referred to in the immediately preceding paragraph.
No person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Securities Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation.
(d) Notice and Defense of Claims. Whenever a claim shall arise for
indemnification under this Section 5, the indemnified party shall promptly
notify the indemnifying party of such claim and, when known, the facts
constituting the basis for such claim. In the event of any such claim for
indemnification resulting from or in connection with a claim or legal proceeding
by a third party, the indemnifying party may, at its sole expense, assume the
defense thereof. If an indemnifying party assumes the defense of any such claim
or legal proceeding, the indemnifying party shall be entitled to select counsel
reasonably acceptable to the indemnified party and take all steps necessary in
the defense thereof; provided, however, that no settlement shall be made without
the prior written consent of the indemnified party, which shall not be
unreasonably withheld (it being understood that the indemnified party may not
withhold consent to any settlement involving only a monetary payment where the
indemnifying party is ready, willing and able to pay such amount); and, provided
further, that the indemnified party may, at its own expense, participate in any
such proceeding with the counsel of its choice. If the indemnifying party does
not assume the defense of any such claim or litigation in accordance with the
terms hereof, the indemnified party may defend against such claim or litigation
in such manner as it may deem appropriate, including, but not limited to,
settling such claim or litigation (after giving notice of the same to the
indemnifying party) on such terms as the indemnified party may reasonably deem
appropriate, and the
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indemnifying party will promptly indemnify the indemnified party in accordance
with the provisions of this Section 5.
6. Public Information. The Company covenants and agrees that for so long as
the Common Stock shall be registered under Section 12(b) or 12(g) of the
Exchange Act or the Company shall be subject to the reporting requirements of
Section 15(d) of the Exchange Act, unless the Shelf Registration Statement shall
be effective, in order to facilitate sales of any Registrable Securities in
reliance on Rule 144 under the Securities Act either (a) there will be available
adequate current public information with respect to the Company as required by
Rule 144, or (b) if such information is not available the Company will use its
commercially reasonable efforts to make such information available without
delay. Without limiting the foregoing, the Company covenants and agrees that for
so long as the Common Stock shall be registered under Section 12(b) or 12(g) of
the Exchange Act or the Company shall be subject to the reporting requirements
of Section 15(d) of the Exchange Act, it will timely file with the Commission
all reports required to be filed under Sections 13 and 15(d) of the Exchange Act
and will promptly furnish to any Holder so requesting a written statement that
the Company has complied with all such reporting requirements.
7. Transfer or Assignment of Registration Rights. If any person shall
acquire Registrable Securities from any Holder, in any manner, whether by
operation of law or otherwise, such person shall be entitled to receive the
rights granted to a Holder under this Agreement, including the rights to require
the Company to register the Registrable Securities; provided that, (a) the
Company is given written notice at the time of or within ten Business Days after
said transfer or assignment, stating the name and address of the transferee or
assignee and identifying the securities with respect to which such rights are
being transferred or assigned and (b) the transferee or assignee of such rights
assumes the obligations of a Holder under this Agreement.
8. Miscellaneous.
(a) Termination. Notwithstanding any other provision of this Agreement,
this Agreement shall terminate and be of no further force or effect on and after
the earlier to occur of the third anniversary of the effective date of the Shelf
Registration Statement and the fourth anniversary of the Closing Date; provided,
however, the indemnification and contribution obligations set forth in Section 5
shall survive until all applicable statutes of limitations related to the Shelf
Registration Statement shall have expired.
(b) Amendments and Waivers. Except as otherwise provided herein, the
provisions of this Agreement may not be amended, modified or supplemented, and
waivers or consents to departure from the provisions hereof may not be given
unless the Company has obtained the written consent of Holders of at least a
majority of the Registrable Securities.
(c) Notice Generally. Any notice, demand, request, consent, approval,
declaration, delivery or other communication hereunder to be made pursuant to
the
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provisions of this Agreement will be in writing and (i) delivered personally,
(ii) sent by telefacsimile, (iii) delivered by a nationally recognized overnight
courier service, or (iv) sent by registered or certified mail, postage prepaid,
as follows:
(1) If to any Holder, at its last known address appearing on the
books of the Company maintained for such purpose.
(2) If to the Company, at
Nucentrix Broadband Networks, Inc.
000 Xxxxxxxx Xxxxx, Xxxxx 000
Xxxxx, Xxxxx 00000
Attention: J. Xxxxxx Xxxxxxxxx
Telecopy Number: (000) 000-0000
With a copy to
Xxxxxx & Xxxxxx L.L.P.
3700 Xxxxxxxx Xxxx Center
0000 Xxxx Xxxxxx
Xxxxxx, Xxxxx 00000-0000
Attention: Xxxxxx X. Xxxxx
Telecopy Number: (000) 000-0000
Every notice, demand, request, consent, approval, declaration, delivery or other
communication required or permitted under this Agreement that is addressed as
provided in this Section 8(c) will (x) if delivered personally or by overnight
courier service, be deemed given upon delivery; (y) if delivered by
telefacsimile or similar facsimile transmission, be deemed given when
electronically confirmed; and (z) if sent by registered or certified mail, be
deemed given when received. Any party from time to time may change its address
for the purpose of notices to that party by giving a similar notice specifying a
new address, but no such notice will be deemed to have been given until it is
actually received by the party sought to be charged with the contents thereof.
(d) Successors and Assigns. This Agreement shall inure to the benefit of
and be binding upon the parties hereto, and their respective successors and
assigns including any person to whom any Registrable Securities are transferred
in accordance with their terms and the terms of any agreement relating thereto.
(e) Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(f) Governing Law. This Agreement shall be governed by the laws of the
State of Delaware, without regard to the provisions thereof relating to conflict
of laws.
(g) Severability. Wherever possible, each provision of this Agreement
shall be interpreted in such manner as to be effective and valid under
applicable law, but
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if any provision of this Agreement shall be prohibited by or invalid under
applicable law, such provision shall be ineffective to the extent of such
prohibition or invalidity, without invalidating the remainder of such provision
or the remaining provisions of this Agreement.
(h) Entire Agreement. This Agreement represents the complete agreement
and understanding of the parties hereto in respect of the subject matter
contained herein. This Agreement supersedes all prior agreements and
understandings between the parties with respect to the subject matter hereof.
(i) No Inconsistent Agreement. The Company shall not on or after the
date of this Agreement enter into any agreement with respect to its securities
which is inconsistent with the rights granted to the Holders of Registrable
Securities pursuant to this Agreement.
[Remainder of page left blank intentionally]
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
THE COMPANY: NUCENTRIX BROADBAND
NETWORKS, INC.
BY: /s/ XXXXXXX X. XXXXXXX
-------------------------------------
NAME: XXXXXXX X. XXXXXXX
TITLE: CHIEF EXECUTIVE OFFICER
ACCEPTED AND AGREED:
INITIAL HOLDERS: ASPEN PARTNERS, L.P.
BY: /s/ XXXXX XXXXX
-------------------------------------
NAME: XXXXX XXXXX
TITLE: MANAGING DIRECTOR
CONDOR PARTNERS IV, L.L.C.
BY: /s/ XXXX XXXXX
-------------------------------------
NAME: XXXX XXXXX
TITLE: PRESIDENT
QUAD-C, PARTNERS II, L.P.
BY: QUAD-C, INC., ITS SOLE GENERAL
PARTNER
BY: /s/ R. XXX XXXXXXXX
---------------------------------
NAME: R. XXX XXXXXXXX
TITLE: VICE PRESIDENT
13
14
QUAD-C PARTNERS III, L.P.
BY: QUAD-C, INC., ITS SOLE GENERAL
PARTNER
BY: /s/ R. XXX XXXXXXXX
---------------------------------
NAME: R. XXX XXXXXXXX
TITLE: VICE PRESIDENT
QUAD-C PARTNERS IV, L.P.
BY: QUAD-C, INC., ITS SOLE GENERAL
PARTNER
BY: /s/ R. XXX XXXXXXXX
---------------------------------
NAME: R. XXX XXXXXXXX
TITLE: VICE PRESIDENT
QUAKER CAPITAL PARTNERS L.P.
BY: QUAKER PREMIERE, L.P.,
ITS SOLE GENERAL PARTNER
BY: QUAKER CAPITAL
MANAGEMENT
CORPORATION, ITS
SOLE GENERAL PARTNER
BY: /s/ XXXX XXXXXXXXXX
-----------------------------
NAME: XXXX XXXXXXXXXX
TITLE: PRESIDENT
/s/ R. XXX XXXXXXXX
-----------------------------------------
R. XXX XXXXXXXX
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TRUST OF XXXXX X. XXXXXXXXXX
FBO XXXX X. XXXXXXXXXX
BY: /s/ XXXX X. XXXXXXXXXX
-------------------------------------
XXXX X. XXXXXXXXXX, TRUSTEE
RIDGEVIEW PARTNERS
BY: /s/ XXXX X. XXXXXXXXXX
-------------------------------------
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ANNEX A
LIST OF INITIAL HOLDERS
Name of Initial Holder Securities Received under Plan
---------------------- ------------------------------
Quad-C Partners IV, L.P. 817,450
Quad-C Partners III, L.P. 410,078
Quad-C Partners II, L.P. 287,057
Quaker Capital Partners I, L.P. 897,637
Georgica Advisors LLC 651,832
R. Xxx Xxxxxxxx 161,878
Condor Partners IV, L.L.C. 78,799
Trust of Xxxxx X. Xxxxxxxxxx FBO Xxxx X. Xxxxxxxxxx 41,523
Ridgeview Partners 41,523
Xxxxxxx Xxxxxxxx Trust UAD 12/22/90 Xxxxxxx Xxxxxxxx Trustee 2,906
Xx. Xxxxx X. Xxxxx SEP-XXX 3,151
Xxxxxxxx Xxxxxx Austin & Xxxxx X. Xxxxxx 590
Dr. and Mrs. Murat Bankaci 1,575
Murat Bankaci XXX 7/29/93 984
Dr. Murat Bankaci Children's Trust 984
Stonecipher, Cunningham, Xxxxx & Xxxxxxx Pension Plan 7,058
Stonecipher, Cunningham, Xxxxx & Xxxxxxx PSP 7,058
Mrs. Xxxxx Xxxxxx Xxxxxx 9,850
Xxxxx X. Xxxxxxx 1,181
Behrenberg Glass Company Profit Sharing Plan 788
Xxxxxxx X. and Xxxx X. Xxxxxx 196
Xxx. Xxxxxxx Xxxxxxxx 393
Xxx. Xxxxxxxx Xxxxx 393
Xxxxx Xxxxx 590
X. Xxxxxx Xxxxxxxxx 2,166
Xxxxxxx X. Xxxxxx XXX 3,114
Cardio Thoracic Surgical Assoc. Profit Sharing Trust 14,117
Xxx X. Xxxxxxx 2,363
Xxx X. & Xxxxxxxxx X. Xxxxxxx 1993 Desc. Trustee X. Xxxxx 4,334
Xxxxxxx X. Xxxxxxxx 1,772
Clinic of Orthopedic Surgery Pension Plan 2,757
Xxxxxxxx X. Xxxx 1,181
Xxxxx X. Xxxxx 5,190
Diagnostic Imaging Amended & Restated Pension dtd 10/1/99 4,030
X.X. Xxxx Inc. Conservative Cash 1,379
17
Dick Foundation 196
Dr. and Mrs. Nick DiGlovine 196
Xxxxxx Engineering Inc. Profit Sharing Plan 1,181
Xxx Xxxxxx Special Loan Acct. 1,245
Xxxxxxx X. and Xxxx Xxx Xxxx 3,114
Xxxx Marketing Pension Plan DTD 12/22/72 Trustee Xxxx Xxx Xxxx 2,906
Xxxx Marketing Associates PSP Trustees Xxxxxxx & Xxxx Xxx Xxxx 3,529
Xxxxxx and Xxx Xxxx 1,772
Xx. Xxxxxxxx Xxxxxx Xxxxxxx 4,531
Xxxxxxxx X. Xxxxxxx Charitable Remainder Unit Trust 985
Xxxxx Xxxxx Pooled Pension Plan 4,982
Xxxxx Xxxxx Pooled Profit Sharing Plan 4,359
Xxxxxxx Brokerage Inc. Profit Sharing Plan 6,500
Drs. Xxxxx X. and Xxxxx X. Xxxxxxxx 1,868
First Evangelical Lutheran Church of Greensburg 7,880
Xxxxxxxxxxx X. Xxxxxxx XXX 393
Xxxxx Xxxxx Xxxxxxx 985
Xx. Xxxxxxxx Xxxxx, MD 6,851
Xx. Xxxx Xxxxxx 2,491
Xx. Xxxxx Xxxxxxx XXX 787
Xx. Xxxx Xxxxx 787
Xx. Xxxxxxx Xxxxx 787
Dr. R. Xxxxxx Xxxxx Cust for Xxxxxx Xxxxx 590
Dr. R. Xxxxxx Xxxxx Cust for Xxxxxxx Xxxxx 590
Xxxxxx Technologies Inc. Profit Sharing Retirement Plan 4,530
Xxxxxxx X. & Xxxxx X. Xxxxxx 1,378
T&V Partners, L.P., a Pennsylvania Limited Partnership 3,545
Xxxx X. Xxxxxxxxxx 1,660
The Xxxx X. Xxxxxxxxxx Irrev. Trust 622
Xx. Xxxxxx X. Xxxxx D.D.S., XXX 4,359
Xxxxxx X. and Xxxx X. Xxxxxxxx 1,245
Xxxx X. Xxxxxxxxx XXX 393
Heifer International Foundation Endowment 11,211
Xxxxxx X. Xxxxxx REV TR 8/21/96 Xxxxxx & Xxxxx Xxxxxx, Trustees 1,453
Xxxxx and Xxxxxxx Xxxxxxx 394
Xx. Xxxx X. Xxxxx XXX 196
Xx. Xxxxxx Xxxxxxxxx 3,944
Xxxxxxx X. Xxxxxxxxx Trust 1,868
Xx. Xxxxx Xxxxxxx 5,397
Xx. Xxxxxx X. Xxxxxxxxxxx XXX 787
Xxxxxx X. Xxxx 2,757
Xxxxxx Xxxx XXX 787
Iron City Sash & Door Profit Sharing Plan 3,743
18
Xx. Xxxx X. Xxxxxxxx Xx. XXX 196
Mrs. Xxxx X. Xxxxxxxx 393
Xxxxx X. Xxxxx 1,575
Xxxxxxxx X. Xxxxxxxx 1,868
Xxxxx X. Xxxxx 1,969
Xxxxxxx X. Xxxxxxx XXX 5,910
Keystone Honing Profit Sharing 11,819
Xxxxxxx X. and Xxxxxx X. Xxxxxx 590
Xxxxx X. Xxxxxxxx 1,575
Xxxxx Xxxxxxxx XXX Rollover 393
Xx. Xxxxxx X. Xxxxxxx 1,181
Xxxxxx X. and Xxxxx X. Xxxxxxxx 1,773
Laurel Medical Imaging Associates Profit Sharing Plan 4,136
Laurel Medical Imaging Money Purchase Plan dtd 5/1/94 984
Xx. X. Xxxxxxx Xxxxxx Xx. XXX 787
Oakland Ortho. Assoc. Pension Plan FBO M. Xxxxxxx Xxxxxx 2,757
Oakland Ortho. Assoc. PSP FBO M. Xxxxxxx Xxxxxx 393
Xxxx X. Xxxxx XXX 196
Xx. Xxxxxx & Xxx. Xxxxxxxx Xxxxxxxx 11,626
Mrs. Xxxxxxxxx Xxxx Margiapana 196
Xx. Xxxxx X. Xxxxxxxx XXX Rollover 2,076
Xxxxx X. Xxxxxxxx Trust 6,228
R. Xxxxx Xxxxxxxx Trust 2,491
Xx. Xxxxx X. Xxxxxxx XXX 787
Xxxxxx X. Xxxxxxx, Cust. Diego X. Xxxxxxx 393
Xxxxxx X. Xxxxxxx, Cust. Xxxxxxx X. Xxxxxxx 393
Xx. Xxxx X. Xxxxxxx XXX 1,378
Xxxxxxx Company, L.P. 5,319
Xx. Xxxx X. Xxxxxxx 196
Associates in Orthodontics Profit Sharing Plan 6,303
Xx. Xxxx Xxxxxxxx 393
Xx. Xxxxxx X. XxXxxxxx 787
Mr. Xxxx XxXxxxxx and Ms. Xxxxxxxxx Xxxxx 2,363
Xxxxxx XxXxxxxxx III DMD Ltd. PSP u/a dtd 10/8/81 1,772
Xxxxxx XxXxxxxxx III DMD Pension Plan dtd 10/08/81 787
Xxxxx Xxxxxxxxxx 196
Xxxxxxx Xxxxx & Xxxxx Xxxxxxxxxx Trustee U/W Xxxxxx Xxxxxxxxxx 787
Midland Mortgage Investment Corp. Emp. Savings Plan & Trust 4,136
Dr. Xxxxxxx Xxxxxx and Dr. Xxxxxxx Xxxxxxxxx 1,181
Xxxx X. Xxxxx XXX 4,152
Xxxx X. Xxxxx & Xxxxx X. Xxxxx 3,529
Xx. Xxxxxx X. Xxxxxx XXX 3,737
19
Xxxxxx X. & Xxxxxx X. Xxxx Fund 4,775
Greater Pittsburgh Orthopaedic Associates Pension Trust 9,849
Greater Pittsburgh Orthopaedic Assoc. Profit Sharing Plan 3,151
Oakland Neurosurgical Assoc. 401(K) PSP and Trust 12/4/72 10,795
Xxxxx Xxxxx Investments Ltd. 13,789
Orthopaedic Surgical Associates Pension Plan 6,698
Orthopaedic Surgical Associates Profit Sharing Plan 4,728
Xx. Xxxxxxx Xxxxxxx, Xx. 000
Xxxxxxx Xxxxx. Inc. Pft. Shr. Plan Trustee Xxxxxxx Xxxxxxx 196
RELC Associates L.P. 3,743
Mr. & Mrs. Xxxxx Xxxx 393
Xxxxxxx X. and XxXxx X. Xxxxxxx 2,076
XxXxx X. Xxxxxxx 3,944
M. Xxxx Xxxx Irrevocable Trust dtd 9/26/91 1,181
Xx. X. Xxxx Xxxx XXX Rollover 1,091
Xxxxxx X. Xxxxxxx 3,529
Xx. Xxxxxx X. Xxxxxxx 787
Xx. Xxxxxx Xxxxxxxxx 3,546
Xxxxx X. Xxxxxxxxx Trust 2,560
Xxxxxxxx Xxxx Xxxxxxxxx Trust 2,560
St. Andrew's Church 6,643
Xxxx-Xxxxxx Xxxxx 393
Xx. Xxxxxxx X. Xxxxxxx XXX Rollover 1,575
Xxxx X. Xxxxx & Xxxxxxx X. Xxxxx 590
Xx. Xxxxxxxx X. Xxxxxxx 5,813
The Xxxxxxxx Family Trust Trustees Mr. & Xxx. Xxxxxxxx 984
Xx. Xxxxx Xxxxxxxx XXX Rollover 1,181
Xxxxxx Xxxxxxx XXX 7,092
Xxxxx X. Xxxxxxx MD XXX 10,047
Xxxxxx X. and Xxxxx X. Xxxxxxx 2,561
Xx. Xxxx X. and Xxxxx X. Xxxxx 985
Xx. Xxxxxx Xxxxxxxxx 393
Trumbull Corp. Conservative Cash 394
Trumbull Profit Sharing Savings Plan 19,699
Xxx. Xxxx X. Xxxx 196
Xx. Xxxxx Xxxxxxx 1,869
Xxxxxxx X. and Xxxxxx X. Xxxxxxxx 1,575
Xx. Xxxxxxx X. Xxxxxxxxxx Esq. XXX 705
Xxxxxxx X. Xxxxxxxxxx Family Trust dtd 10/31/91 2,076
Xxxxxxx X. Xxxxxxxxxx Revocable Trust dtd 3/7/88 1,370
Xxxxx X. Xxxxxxxx Living Trust Trustee Xxxxxx X. Xxxxxxxx 1,575
Mr. Xxxxxxx Xxxxx 393
West. PA Anesthesia Employee Pension 5,515
Xxxxxxx X. Xxxxxxx 8,927
Xxxxxxx Family Foundation 2,906
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3,842,593
