Contract
EXHIBIT
10.20
REGISTRATION
RIGHTS AGREEMENT,
dated
as of March 28, 2007 (the “Agreement”)
among
NEXTWAVE
WIRELESS INC.,
a
Delaware corporation (including any successor thereto, whether by merger,
consolidation, conversion or otherwise, the “Company”)
and
the Purchasers party hereto.
The
Purchasers have the right to acquire shares of common stock, par value $0.001
per share, of the Company (“Common
Stock”)
upon
conversion of shares of Preferred Stock (as hereinafter defined) of the Company,
purchased pursuant to the Purchase Agreement (as hereinafter defined). The
Company and the Purchasers deem it to be in their respective best interests
to
set forth their rights in connection with public offerings and sales of shares
of Common Stock and are entering into this Registration Rights Agreement as
a
condition to and in connection with the Purchasers entering into the Purchase
Agreement.
NOW,
THEREFORE,
in
consideration of the premises and mutual covenants and obligations hereinafter
set forth, the Company and the Investors hereby agree as follows:
Section
1. Certain
Definitions.
For
purposes of this Registration Rights Agreement, the following terms shall have
the following respective meanings:
“Commission”
shall
mean the United States Securities and Exchange Commission, or any other federal
agency at the time administering the Exchange Act or the Securities Act,
whichever is the relevant statute for the particular purpose.
“Effective
Time,”
means
the time and date as of which the Commission declares the Shelf Registration
Statement effective or as of which the Shelf Registration Statement otherwise
becomes effective.
“Electing
Holder”
shall
mean each Purchaser and any holder of Registrable Securities that has returned
a
completed and signed Notice and Questionnaire to the Company in accordance
with
Section 3(a)(ii) or 3(a)(iii) hereof and the instructions set forth on the
Notice and Questionnaire.
“Exchange
Act”
shall
mean the Securities Exchange Act of 1934, or any successor thereto, as the
same
shall be amended from time to time.
The
term
“holder”
shall
mean each of the Purchasers and other persons who acquire Registrable Securities
from time to time (including any successors or assigns), in each case for so
long as such person owns any Registrable Securities.
“Investment
Amount”
means,
with respect to each Purchaser, the investment amount indicated opposite such
Purchaser’s name on Schedule
1
of the
Purchase Agreement.
“Notice
and Questionnaire”
means
a
Notice of Registration Statement and Selling Securityholder Questionnaire
substantially in the form of Exhibit
A
hereto.
The
term
“person”
shall
mean a corporation, association, partnership, organization, limited liability
company, limited partnership, limited liability partnership, or other similar
entity, individual, government or political subdivision thereof or governmental
agency.
“Purchase
Agreement”
means
that certain Securities Purchase Agreement, dated as of the date hereof, among
the Company and the Purchasers, as may be amended, modified or supplemented
from
time to time.
“Purchasers”
shall
mean the Purchasers named in Schedule 1 to the Purchase Agreement, other than
Navation, Inc. and Manchester Financial Group, L.P.
“Preferred
Stock”
shall
mean the Company’s Series A Convertible Preferred Stock, par value $0.001 per
share.
“Registrable
Securities”
shall
mean the Securities; provided,
however,
that a
Security shall cease to be a Registrable Security upon the earliest to occur
of
the following: (i) a Shelf Registration Statement registering such Security
under the Securities Act has been declared or becomes effective and such
Security has been sold or otherwise transferred by the holder thereof pursuant
to and in a manner contemplated by such effective Shelf Registration Statement;
(ii) such Security is sold pursuant to Rule 144 under circumstances in which
any
legend borne by such Security relating to restrictions on transferability
thereof, under the Securities Act or otherwise, is removed by the Company;
(iii)
such Security is eligible to be sold pursuant to paragraph (k) of Rule 144;
or
(iv) such Security shall cease to be outstanding.
“Registration
Expenses”
shall
have the meaning assigned thereto in Section 4 hereof.
“Rule
144,”
“Rule
405”
and
“Rule
415”
shall
mean, in each case, such rule promulgated under the Securities Act (or any
successor provision), as the same shall be amended from time to time.
“Securities”
means
(i) the shares of Preferred Stock issued to the Purchasers pursuant to the
Purchase Agreement and (ii) the shares of Common Stock of the Company issued
or
issuable upon conversion of the shares of Preferred Stock issued to the
Purchasers pursuant to the Purchase Agreement, and any other capital stock
of
the Company into which such shares of Preferred Stock or Common Stock may be
converted or which is issued or issuable upon conversion of such shares of
Preferred Stock, in each case as a result of any stock split, stock dividend,
recapitalization, exchange or similar event.
“Securities
Act”
shall
mean the Securities Act of 1933, or any successor thereto, as the same shall
be
amended from time to time.
“Shelf
Registration”
shall
have the meaning assigned thereto in Section 2(a) hereof.
“Shelf
Registration Statement”
shall
have the meaning assigned thereto in Section 2(a) hereof.
Unless
the context otherwise requires, any reference herein to a “Section” or “clause”
refers to a Section or clause, as the case may be, of this Registration Rights
Agreement, and the words “herein,” “hereof” and “hereunder” and other words of
similar import refer to this Registration Rights Agreement as a whole and not
to
any particular Section or other subdivision. Capitalized terms used herein
but
not defined herein shall have the meaning assigned to such terms in the Purchase
Agreement.
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Section
2. Registration
Under the Securities Act.
(a) The
Company shall file under the Securities Act, as soon as practicable upon
becoming eligible to use a Form S-3 Registration Statement, but in no event
later than July 31, 2007, a “shelf” registration statement providing for the
registration of, and the sale on a continuous or delayed basis by the holders
of, all of the Registrable Securities, pursuant to Rule 415 or any similar
rule
that may be adopted by the Commission (such filing, the “Shelf
Registration”
and
such registration statement, the “Shelf
Registration Statement”).
The
Company agrees to use its reasonable best efforts (x) to cause the Shelf
Registration Statement to become or be declared effective no later than 60
days
after the applicable Shelf Registration Statement filing deadline described
above and, subject to Section 3(d), to keep such Shelf Registration Statement
continuously effective for a period ending on the earlier of the second
anniversary of the Effective Time or such time as there are no longer any
Registrable Securities outstanding, provided,
however,
that no
holder shall be entitled to be named as a selling securityholder in the Shelf
Registration Statement or to use the prospectus forming a part thereof for
resales of Registrable Securities unless such holder is an Electing Holder,
and
(y) after the Effective Time of the Shelf Registration Statement, promptly
upon
the request of any holder of Registrable Securities that is not then an Electing
Holder, to take any action reasonably necessary to enable such holder to use
the
prospectus forming a part thereof for resales of Registrable Securities,
including, without limitation, any action necessary to identify such holder
as a
selling securityholder in the Shelf Registration Statement, provided,
however,
that
nothing in this Clause (y) shall relieve any such holder of the obligation
to
return a completed and signed Notice and Questionnaire to the Company in
accordance with Section 3(a)(iii) hereof; provided
further
that
each holder shall promptly furnish additional information required to be
disclosed in order to make information previously furnished to the Company
by
such holder not misleading. The Company further agrees to supplement or make
amendments to the Shelf Registration Statement, including without limitation,
any post effective amendments, as and when required by the rules, regulations
or
instructions applicable to the registration form used by the Company for such
Shelf Registration Statement or by the Securities Act or rules and regulations
thereunder for shelf registration. To the extent the Company is required to
file
a prospectus under Rule 424(b) of the Securities Act, it shall file such
prospectus on the third business day following the Effective Time. In the event
that the Company and one or more of the Purchasers agree that it would be
advisable to delay the registration of a portion of the Securities, the Company
shall file a subsequent Shelf Registration Statement covering such portion
of
the Securities at a time which shall be mutually agreed by the Company and
such
Purchasers. Such Shelf Registration Statement shall be subject to all of the
terms and provisions of this Registration Rights Agreement, except for the
initial filing deadline described above.
(b) The
Company shall use all reasonable best efforts to take all actions necessary
or
advisable to be taken by it to ensure that the transactions contemplated herein
are effected as so contemplated in Section 2(a) hereof, and to submit to the
Commission, within two business days after the Company learns that no review
of
the Shelf Registration Statement will be made by the staff of the Commission
or
that the staff has no further comments on the Shelf Registration Statement,
as
the case may be, a request for acceleration of effectiveness (or post effective
amendment, if applicable) of the Shelf Registration Statement to a time and
date
not later than 48 hours after the submission of such request.
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(c) Any
reference herein to a registration statement or prospectus as of any time shall
be deemed to include any document incorporated, or deemed to be incorporated,
therein by reference as of such time and any reference herein to any
post-effective amendment to a registration statement as of any time shall be
deemed to include any document incorporated, or deemed to be incorporated,
therein by reference as of such time. Any reference to a prospectus as of any
time shall include any supplement thereto, preliminary prospectus, or any free
writing prospectus in respect thereof.
Section
3. Registration
Procedures.
The
following provisions shall apply to the filing of the Shelf Registration
Statement:
(a) The
Company shall:
(i) prepare
and file with the Commission, as soon as practicable but in any case within
the
time periods specified in Section 2(a), a Shelf Registration Statement on any
form which may then be utilized by the Company and which shall register all
of
the Registrable Securities for resale by the holders thereof in accordance
with
such method or methods of disposition as may be specified by such of the holders
as, from time to time, may be Electing Holders and use all reasonable best
efforts to cause such Shelf Registration Statement to become effective as soon
as practicable but in any case within the time periods specified in Section
2(a);
(ii) not
less
than 30 calendar days prior to the Effective Time of the Shelf Registration
Statement, or, if the Shelf Registration Statement is not reviewed by the staff
of the Commission, as promptly as practicable after the Company learns that
no
such review is pending, mail the Notice and Questionnaire to the holders of
Registrable Securities; no holder shall be entitled to be named as a selling
securityholder in the Shelf Registration Statement as of the Effective Time,
and
no holder shall be entitled to use the prospectus forming a part thereof for
resales of Registrable Securities at any time, unless such holder has returned
a
completed and signed Notice and Questionnaire to the Company by the deadline
for
response set forth therein; provided,
however,
holders
of Registrable Securities shall have at least 20 calendar days from the date
on
which the Notice and Questionnaire is first mailed to such holders to return
a
completed and signed Notice and Questionnaire to the Company;
(iii) after
the
Effective Time of the Shelf Registration Statement, upon the request of any
holder of Registrable Securities that is not then an Electing Holder, promptly
send a Notice and Questionnaire to such holder; provided
that the
Company shall not be required to take any action to name such holder as a
selling securityholder in the Shelf Registration Statement or to enable such
holder to use the prospectus forming a part thereof for resales of Registrable
Securities until such holder has returned a completed and signed Notice and
Questionnaire to the Company;
(iv) as
soon
as practicable prepare and file with the Commission such amendments and
supplements to such Shelf Registration Statement (including without limitation,
any required post effective amendments) and the prospectus included therein
as
may be necessary to effect and maintain the effectiveness of such Shelf
Registration Statement for the period specified in Section 2(a) hereof and
as
may be required by the applicable rules and regulations of the Commission and
the instructions applicable to the form of such Shelf Registration Statement,
including without limitation, to include any Electing Holder to be named as
a
selling security holder therein;
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(v) comply
with the provisions of the Securities Act with respect to the disposition of
all
of the Registrable Securities covered by such Shelf Registration Statement
in
accordance with the intended methods of disposition by the Electing Holders
provided for in such Shelf Registration Statement;
(vi) provide
(A) one representative of the Electing Holders and (B) not more than one counsel
for all the Electing Holders the opportunity to participate in the preparation
of such Shelf Registration Statement, each prospectus included therein or filed
with the Commission and each amendment or supplement thereto, in each case
subject to customary confidentiality restrictions;
(vii) for
a
reasonable period prior to the filing of such Shelf Registration Statement,
and
throughout the period specified in Section 2(a), make available at reasonable
times at the Company’s principal place of business or such other reasonable
place for inspection by the persons referred to in Section 3(a)(vi) who shall
certify to the Company that they have a current intention to sell the
Registrable Securities pursuant to the Shelf Registration such financial and
other information and books and records of the Company, and cause the officers,
employees, counsel and independent certified public accountants of the Company
to be available to respond to such inquiries, as shall be reasonably necessary,
in the judgment of the respective counsel referred to in such Section, to
conduct a reasonable investigation within the meaning of Section 11 of the
Securities Act, and in connection therewith, the Company shall use its
reasonable best efforts to cooperate with such persons in obtaining from the
Company’s independent auditors, and counsel to the Company, such comfort letters
and opinions and statements as shall be appropriate to be delivered to and
for
the benefit of any such person in the relevant circumstances, and the Company
shall pay any fees and expenses of its independent certified public accountants
and counsel in connection therewith; provided,
however,
that
each such party shall be required to maintain in confidence and not to disclose
to any other person any information or records reasonably designated by the
Company as being confidential, until such time as (A) such information becomes
a
matter of public record (whether by virtue of its inclusion in such registration
statement or otherwise), or (B) such person shall be required so to disclose
such information pursuant to a subpoena or order of any court or other
governmental agency or body having jurisdiction over the matter (provided such
person agrees that it will give notice to the Company and allow the Company,
at
its expense, to promptly undertake appropriate action and to prevent disclosure
of such information deemed confidential), or (C) such information is required
to
be set forth in such Shelf Registration Statement or the prospectus included
therein or in an amendment to such Shelf Registration Statement or an amendment
or supplement to such prospectus in order that such Shelf Registration
Statement, prospectus, amendment or supplement, as the case may be, complies
with applicable requirements of the federal securities laws and the rules and
regulations of the Commission and does not contain an untrue statement of a
material fact or omit to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading in light
of
the circumstances then existing;
5
(viii) promptly
notify each of the Electing Holders, and if requested by any such Electing
Holder, confirm such advice in writing, (A) when such Shelf Registration
Statement or the prospectus included therein or any prospectus amendment or
supplement or post-effective amendment has been filed, and, with respect to
such
Shelf Registration Statement or any post-effective amendment, when the same
has
become effective, (B) of any comments by the Commission and by the blue sky
or
securities commissioner or regulator of any state with respect thereto or any
request by the Commission for amendments or supplements to such Shelf
Registration Statement or prospectus or for additional information, (C) of
the
issuance by the Commission of any stop order suspending the effectiveness of
such Shelf Registration Statement or the initiation or threatening of any
proceedings for that purpose, (D) if at any time the representations and
warranties of the Company contemplated by Section 5 cease to be true and correct
in all material respects, (E) of the receipt by the Company 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, or (F) that such Shelf Registration Statement,
prospectus, prospectus amendment or supplement or post-effective amendment
does
not conform in all material respects to the applicable requirements of the
Securities Act and the rules and regulations of the Commission thereunder or
contains an untrue statement of a material fact or omits to state any material
fact required to be stated therein or necessary to make the statements therein
not misleading in light of the circumstances then existing;
(ix) use
all
reasonable best efforts to obtain the withdrawal of any order suspending the
effectiveness of such registration statement or any post-effective amendment
thereto at the earliest practicable date;
(x) if
requested by any Electing Holder, promptly incorporate in a prospectus
supplement or post-effective amendment such information as is required by the
applicable rules and regulations of the Commission and as such Electing Holder
specifies should be included therein relating to the terms of the sale of such
Registrable Securities, including information with respect to the amount of
Registrable Securities being sold by such Electing Holder , the name and
description of such Electing Holder the offering price of such Registrable
Securities and any compensation payable in respect thereof, and make all
required filings of such prospectus supplement or post-effective amendment
promptly after notification of the matters to be incorporated in such prospectus
supplement or post-effective amendment;
(xi) furnish
to each Electing Holder and the respective counsel referred to in Section
3(a)(vi) a conformed copy of such Shelf Registration Statement, each such
amendment and supplement thereto (in each case including all exhibits thereto
(in the case of an Electing Holder of Registrable Securities, upon request)
and
documents incorporated by reference therein) and such number of copies of such
Shelf Registration Statement (excluding exhibits thereto and documents
incorporated by reference therein unless specifically so requested by such
Electing Holder) and of the prospectus included in such Shelf Registration
Statement, in conformity in all material respects with the applicable
requirements of the Securities Act and the rules and regulations of the
Commission thereunder, and such other documents, as such Electing Holder may
reasonably request in order to facilitate the offering and disposition of the
Registrable Securities owned by such Electing Holder and to permit such Electing
Holder to satisfy the prospectus delivery requirements of the Securities Act;
and subject to Section 3(b) below, the Company hereby consents to the use of
such prospectus and any amendment or supplement thereto by each such Electing
Holder , in each case in the form most recently provided to such person by
the
Company, in connection with the offering and sale of the Registrable Securities
covered by the prospectus or any supplement or amendment thereto;
6
(xii) use
all
reasonable best efforts to (A) register or qualify the Registrable Securities
to
be included in such Shelf Registration Statement under such securities laws
or
blue sky laws of such jurisdictions as any Electing Holder thereof shall
reasonably request, (B) keep such registrations or qualifications in effect
and
comply with such laws so as to permit the continuance of offers, sales and
dealings therein in such jurisdictions during the period the Shelf Registration
is required to remain effective under Section 2(b) above and for so long as
may
be necessary to enable any such Electing Holder to complete its distribution
of
Securities pursuant to such Shelf Registration Statement and (C) take any and
all other actions as may be reasonably necessary to enable each such Electing
Holder to consummate the disposition in such jurisdictions of such Registrable
Securities; provided,
however,
that the
Company shall not be required for any such purpose to (1) qualify as a foreign
corporation in any jurisdiction wherein it would not otherwise be required
to
qualify but for the requirements of this Section 3(a)(xii), (2) consent to
general service of process in any such jurisdiction or become subject to
taxation in any such jurisdiction or (3) make any changes to its certificate
of
incorporation or by-laws or other governing documents or any agreement between
it and its stockholders;
(xiii) use
all
reasonable best efforts to obtain the consent or approval of each governmental
agency or authority, whether federal, state or local, which may be required
to
effect the Shelf Registration or the offering or sale in connection therewith
or
to enable the selling holder or holders to offer, or to consummate the
disposition of, their Registrable Securities;
(xiv) unless
any Registrable Securities shall be in book-entry only form, cooperate with
the
Electing Holders to facilitate the timely preparation and delivery of
certificates representing Registrable Securities to be sold, which certificates,
if so required by any securities exchange upon which any Registrable Securities
are listed, shall be penned, lithographed or engraved, or produced by any
combination of such methods, on steel engraved borders, and which certificates
shall not bear any restrictive legends;
(xv) notify
in
writing each holder of Registrable Securities of any proposal by the Company
to
amend or waive any provision of this Registration Rights Agreement pursuant
to
Section 8(i) hereof and of any amendment or waiver effected pursuant thereto,
each of which notices shall contain the text of the amendment or waiver proposed
or effected, as the case may be; and
(xvi) comply
with all applicable rules and regulations of the Commission, and make generally
available to its securityholders as soon as practicable but in any event not
later than eighteen months after the effective date of such Shelf Registration
Statement, an earning statement of the Company and its subsidiaries complying
with Section 11(a) of the Securities Act (including, at the option of the
Company, Rule 158 thereunder).
7
(b) In
the
event that the Company would be required, pursuant to Section 3(a)(viii)(F)
above, to notify the Electing Holders the Company shall promptly prepare and
furnish to each of the Electing Holders a reasonable number of copies of a
prospectus supplemented or amended so that, as thereafter delivered to
purchasers of Registrable Securities, such prospectus shall conform in all
material respects to the applicable requirements of the Securities Act and
the
rules and regulations of the Commission thereunder and shall not contain an
untrue statement of a material fact or omit to state a material fact required
to
be stated therein or necessary to make the statements therein not misleading
in
light of the circumstances then existing. Each Electing Holder agrees that
upon
receipt of any notice from the Company pursuant to Section 3(a)(viii)(F) hereof,
such Electing Holder shall forthwith discontinue the disposition of Registrable
Securities pursuant to the Shelf Registration Statement applicable to such
Registrable Securities until such Electing Holder shall have received copies
of
such amended or supplemented prospectus, and if so directed by the Company,
such
Electing Holder shall deliver to the Company (at the Company’s expense) all
copies, other than permanent file copies, then in such Electing Holder’s
possession of the prospectus covering such Registrable Securities at the time
of
receipt of such notice.
(c) In
the
event of a Shelf Registration, in addition to the information required to be
provided by each Electing Holder in its Notice and Questionnaire, the Company
may require such Electing Holder to furnish to the Company such additional
information regarding such Electing Holder and such Electing Holder’s intended
method of distribution of Registrable Securities as may be required in order
to
comply with the Securities Act. Each such Electing Holder agrees to notify
the
Company as promptly as practicable of any inaccuracy or change in information
previously furnished by such Electing Holder to the Company or of the occurrence
of any event in either case as a result of which any prospectus relating to
such
Shelf Registration contains or would contain an untrue statement of a material
fact regarding such Electing Holder or such Electing Holder’s intended method of
disposition of such Registrable Securities or omits to state any material fact
regarding such Electing Holder or such Electing Holder’s intended method of
disposition of such Registrable Securities required to be stated therein or
necessary to make the statements therein not misleading in light of the
circumstances then existing, and promptly to furnish to the Company any
additional information required to correct and update any previously furnished
information or required so that such prospectus shall not contain, with respect
to such Electing Holder or the disposition of such Registrable Securities,
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 not misleading
in
light of the circumstances then existing.
(d) Notwithstanding
any other provision of this Agreement, the Company may for valid business
reasons (other than avoidance of its obligations hereunder), including without
limitation, a potential material acquisition, divestiture of assets or other
material corporate transaction, notify holders of Registrable Securities in
writing that the Shelf Registration Statement is no longer effective or the
prospectus included therein is no longer usable for offers and sales of
Securities for a period not to exceed: (i) 30 consecutive days at any one time,
(ii) 45 days in any three month period or (iii) 90 days in the aggregate during
any twelve-month period; provided, that the Company promptly thereafter complies
with the requirements of Section 2(b) hereof, if applicable, and provided
further that, if a post effective amendment is required by applicable law to
be
filed with the Commission to cause a Holder to be named as a selling security
holder in the Shelf Registration Statement, the period of time between the
filing and the effectiveness of any such post effective amendment shall be
not
deemed to be a Suspension Period hereunder. The first day of any Suspension
Period must be at least two trading days after the last day of any prior
Suspension Period. Each holder agrees that upon receipt of any notice from
the
Company pursuant to this Section 3(d), it will discontinue use of the prospectus
contained in the Shelf Registration Statement until receipt of copies of the
supplemented or amended prospectus relating thereto or until advised in writing
by the Company that the use of the prospectus contained in the Shelf
Registration Statement may be resumed (any such period, a “Suspension
Period”).
8
(e) The
Company shall provide to each affected Electing Holder any comments or
notifications of the Commission or any other applicable regulatory authority
that bears on the status of or disclosure with respect to any such Electing
Holder, or if applicable, the Electing Holders as a class, and in the event
requested by any Electing Holder, withdraw information relating to such Electing
Holder as a selling shareholder from such Shelf Registration Statement and
any
other related offering materials. In the event such Electing Holder withdraws
from such Shelf Registration Statement, such Electing Holder shall be eligible
to participate in any subsequent Shelf Registration Statement filed by the
Company as contemplated by Section 2(a), and the Company shall have no liability
relating to the decision of such Electing Holder to withdraw from such Shelf
Registration Statement and shall not be deemed to have defaulted in its
obligations under this Registration Rights Agreement in any
respect.
(f) The
Company shall use its reasonable best efforts to secure designation and
quotation of all of the Registrable Securities covered by a Registration
Statement on The NASDAQ Global Market.
Section
4. Registration
Expenses.
The
Company agrees to bear and to pay or cause to be paid promptly all expenses
incident to the Company’s performance of or compliance with this Registration
Rights Agreement, including (a) all Commission and any NASD registration, filing
and review fees and expenses (b) all fees and expenses in connection with the
qualification of the Securities for offering and sale under the State securities
and blue sky laws referred to in Section 3(a)(xii) hereof and determination
of
their eligibility for investment under the laws of such jurisdictions as or
the
Electing Holders may designate, including reasonable fees and disbursements
of
not more than one counsel for the Electing Holders in connection with such
qualification and determination, (c) all expenses relating to the preparation,
printing, production, distribution and reproduction of each registration
statement required to be filed hereunder, each prospectus included therein
or
prepared for distribution pursuant hereto, each amendment or supplement to
the
foregoing, the expenses of preparing the Securities for delivery and the
expenses of printing or producing blue sky memoranda and all other documents
in
connection with the offering, sale or delivery of Securities to be disposed
of
(including certificates representing the Securities), (d) messenger, telephone
and delivery expenses relating to the offering, sale or delivery of Securities
and the preparation of documents referred in clause (c) above, (e) internal
expenses (including all salaries and expenses of the Company’s officers and
employees performing legal or accounting duties), (f) fees, disbursements and
expenses of counsel and independent certified public accountants of the Company
(including the expenses of any opinions or “cold comfort” letters required by or
incident to such performance and compliance), (g) reasonable fees, disbursements
and expenses of one counsel for the Electing Holders retained in connection
with
a Shelf Registration, as selected by the Electing Holders of at least a majority
in aggregate principal amount of the Registrable Securities held by Electing
Holders (which counsel shall be reasonably satisfactory to the Company), and
(h)
fees, expenses and disbursements of any other persons, including special
experts, retained by the Company in connection with such registration
(collectively, the “Registration
Expenses”).
To
the extent that any Registration Expenses are incurred, assumed or paid by
any
holder of Registrable Securities or any placement or sales agent therefor or
underwriter thereof, the Company shall reimburse such person for the full amount
of the Registration Expenses so incurred, assumed or paid promptly after receipt
of a request therefor. Notwithstanding the foregoing, the holders of the
Registrable Securities being registered shall pay all agency fees and
commissions and underwriting discounts and commissions attributable to the
sale
of such Registrable Securities and the fees and disbursements of any counsel
or
other advisors or experts retained by such holders (severally or jointly),
other
than the counsel and experts specifically referred to above.
9
Section
5. Representations
and Warranties.
The
Company represents and warrants to, and agrees with, each Purchaser and each
of
the holders from time to time of Registrable Securities that:
(a) Each
registration statement covering Registrable Securities and each prospectus
(including any preliminary or summary prospectus) contained therein or furnished
pursuant to Section 3(c) or Section 3(d) hereof and any further amendments
or
supplements to any such registration statement or prospectus, when it becomes
effective or is filed with the Commission, as the case may be, will conform
in
all material respects to the requirements of the Securities Act and the rules
and regulations of the Commission thereunder and will 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 not misleading;
and
at all times subsequent to the Effective Time when a prospectus would be
required to be delivered under the Securities Act, other than from (i) such
time
as a notice has been given to holders of Registrable Securities pursuant to
Section 3(a)(viii)(F) hereof until (ii) such time as the Company furnishes
an
amended or supplemented prospectus pursuant to Section 3(b) hereof, each such
registration statement, and each prospectus contained therein or furnished
pursuant to Section 3(a) hereof, as then amended or supplemented, will conform
in all material respects to the requirements of the Securities Act and the
rules
and regulations of the Commission thereunder and will 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 not misleading in
the
light of the circumstances then existing; provided,
however,
that
this representation and warranty shall not apply to any statements or omissions
made in reliance upon and in conformity with information furnished in writing
to
the Company by a holder of Registrable Securities expressly for use therein.
(b) Any
documents incorporated by reference in any prospectus referred to in Section
5(a) hereof, when they become or became effective or are or were filed with
the
Commission, as the case may be, will conform or conformed in all material
respects to the requirements of the Securities Act or the Exchange Act, as
applicable, and none of such documents will contain or contained an untrue
statement of a material fact or will omit or omitted to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading; provided,
however,
that
this representation and warranty shall not apply to any statements or omissions
made in reliance upon and in conformity with information furnished in writing
to
the Company by a holder of Registrable Securities expressly for use therein.
10
(c) The
compliance by the Company with all of the provisions of this Registration Rights
Agreement and the consummation of the transactions herein contemplated will
not
(i) conflict with or result in a breach or violation of any of the terms or
provisions of, or constitute a default under, any indenture, mortgage, deed
of
trust, loan agreement or other agreement or instrument to which the Company
or
any Significant Subsidiary (as defined in Rule 1-02 of Regulation S-X) is a
party or by which the Company or any Significant Subsidiary is bound or to
which
any of the property or assets of the Company or any Subsidiary is subject,
(ii)
result in any violation of the provisions of the certificate of incorporation
or
organization or the by-laws or other governing documents, as applicable, of
the
Company or (iii) result in any violation of any statute or any order, rule
or
regulation of any court or governmental agency or body having jurisdiction
over
the Company or any Significant Subsidiary or any of their properties except,
in
the case of clauses (i) and (iii), for such conflicts, breaches, violations
or
defaults as would not individually, or in the aggregate, have a material adverse
effect on the consolidated financial position, stockholders’ equity or results
of operations of the Company and its subsidiaries, taken as a whole; and no
consent, approval, authorization, order, registration or qualification of or
with any such court or governmental agency or body is required for the
consummation by the Company of the transactions contemplated by this
Registration Rights Agreement, except (i) the registration under the Securities
Act of the Securities, (ii) such consents, approvals, authorizations,
registrations or qualifications as may be required under state securities or
blue sky laws in connection with the offering and distribution of the
Securities, (iii) the filing of a notification form with the Nasdaq Stock Market
within five days after the Closing Date (as defined in the Purchase Agreement),
(iv) such additional post-Closing filings as may be required to comply with
applicable state and federal securities laws and the listing requirements of
the
Nasdaq National Market and (v) such consents, approvals, authorizations,
registrations or qualifications that have been obtained and are in full force
and effect as of the date hereof.
(d) This
Registration Rights Agreement has been duly authorized, executed and delivered
by the Company.
Section
6. Indemnification.
(a) Indemnification
by the Company.
The
Company will indemnify and hold harmless each of the Electing Holders of
Registrable Securities included in a Shelf Registration Statement and the
directors, officers, members, partners, employees, agents, representatives
of,
and each Person against any losses, claims, damages or liabilities, joint or
several, incurred in investigating, preparing or defending any action, claim,
suit, inquiry, proceeding, investigation or appeal taken from the foregoing
by
or before any court or governmental, administrative or other regulatory agency,
body or the Commission, whether pending or threatened, whether or not an
indemnified party is or may be a party thereto, to which such holder may become
subject under the Securities Act, the Exchange Act or any other law, including
without limitation, any state securities law, or any rule or regulation
thereunder relating to the offer or sale of the Registrable Securities pursuant
to a Shelf Registration Statement, insofar as such losses, claims, damages
or
liabilities (or actions in respect thereof) arise out of or are based upon
an
untrue statement or alleged untrue statement of a material fact contained in
any
Shelf Registration Statement under which such Registrable Securities were
registered under the Securities Act, or any preliminary, final or free writing
prospectus contained therein or furnished by the Company to any such Electing
Holder or any amendment or supplement thereto, or arise out of or are based
upon
the omission or alleged omission to state therein a material fact required
to be
stated therein or necessary to make the statements therein not misleading,
and
will reimburse such holder, such Electing Holder for any legal or other expenses
reasonably incurred by them in connection with investigating or defending any
such action or claim as such expenses are incurred;
provided, however,
that
the Company shall not be liable to any such person in any such case to the
extent that any such loss, claim, damage or liability (x) arises out of or
is
based upon an untrue statement or alleged untrue statement or omission or
alleged omission made in such registration statement, or preliminary, final
or
free writing prospectus, or amendment or supplement thereto, in reliance upon
and in conformity with written information furnished to the Company by any
such
person expressly for use therein, (y) arises from such person’s use of the Shelf
Registration Statement or prospectus or any amendments or supplements thereto
during a Suspension Period.
11
(b) Indemnification
by the Holders.
Each
Electing Holder agrees, severally and not jointly, to (i) indemnify and hold
harmless the Company and all other holders of Registrable Securities, against
any losses, claims, damages or liabilities to which the Company or such other
holders of Registrable Securities may become subject, under the Securities
Act
or otherwise, insofar as such losses, claims, damages or liabilities (or actions
in respect thereof) arise out of or are based upon an untrue statement or
alleged untrue statement of a material fact contained in such registration
statement, or any preliminary, final or free writing prospectus contained
therein or furnished by the Company to any such Electing Holder, or any
amendment or supplement thereto, or arise out of or are based upon the omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, in each
case
to the extent, but only to the extent, that such untrue statement or alleged
untrue statement or omission or alleged omission was made in reliance upon
and
in conformity with written information furnished to the Company by such Electing
Holder expressly for use therein, and (ii) reimburse the Company for any legal
or other expenses reasonably incurred by the Company in connection with
investigating or defending any such action or claim as such expenses are
incurred; provided,
however,
that no
such Electing Holder shall be required to undertake liability to any person
under this Section 6(b) for any amounts in excess of the dollar amount of the
net proceeds to be received by such Electing Holder from the sale of such
Electing Holder’s Registrable Securities pursuant to such registration.
(c) Notices
of Claims, Etc.
Promptly
after receipt by an indemnified party under subsection (a) or (b) above of
written notice of the commencement of any action, such indemnified party shall,
if a claim in respect thereof is to be made against an indemnifying party
pursuant to the indemnification provisions of or contemplated by this Section
6,
notify such indemnifying party in writing of the commencement of such action;
but the omission so to notify the indemnifying party shall not relieve it from
any liability which it may have to any indemnified party otherwise than under
the indemnification provisions of or contemplated by Section 6(a) or 6(b) hereof
to the extent the indemnifying party is not materially prejudiced by such
omission. In case any such action shall be brought against any indemnified
party
and it shall notify an indemnifying party of the commencement thereof, such
indemnifying party shall be entitled to participate therein and, to the extent
that it shall wish, jointly with any other indemnifying party similarly
notified, to assume the defense thereof, with counsel reasonably satisfactory
to
such indemnified party (who shall not, except with the consent of the
indemnified party, be counsel to the indemnifying party), and, after notice
from
the indemnifying party to such indemnified party of its election so to assume
the defense thereof, such indemnifying party shall not be liable to such
indemnified party for any legal expenses of other counsel or any other expenses,
in each case subsequently incurred by such indemnified party, in connection
with
the defense thereof other than reasonable costs of investigation; provided,
however,
that
such indemnified party shall have the right to retain its own counsel with
the
fees and expenses of not more than one counsel for such indemnified party to
be
paid by the Company, if, in the reasonable opinion of such indemnified party
the
representation by such counsel of such indemnified party and the Company would
be inappropriate due to actual or potential differing interests between such
indemnified party and any other party represented by such counsel in such
proceeding, and provided,
further,
that
the indemnifying party shall not be required to pay for more than one such
separate counsel for all similarly situated indemnified parties in connection
with any indemnification claim. No indemnifying party shall, without the written
consent of the indemnified party, effect the settlement or compromise of, or
consent to the entry of any judgment with respect to, any pending or threatened
action or claim in respect of which indemnification or contribution may be
sought hereunder (whether or not the indemnified party is an actual or potential
party to such action or claim) unless such settlement, compromise or judgment
(i) includes an unconditional release of the indemnified party from all
liability arising out of such action or claim and (ii) does not include a
statement as to or an admission of fault, culpability or a failure to act by
or
on behalf of any indemnified party.
12
(d) Contribution.
If for
any reason the indemnification provisions contemplated by Section 6(a) or
Section 6(b) are unavailable to or insufficient to hold harmless an indemnified
party in respect of any losses, claims, damages or liabilities (or actions
in
respect thereof) referred to therein, then each indemnifying party shall
contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages or liabilities (or actions in respect thereof)
in such proportion as is appropriate to reflect the relative fault of the
indemnifying party and the indemnified party in connection with the statements
or omissions which resulted in such losses, claims, damages or liabilities
(or
actions in respect thereof), as well as any other relevant equitable
considerations. The relative fault of such indemnifying party and indemnified
party shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or omission or alleged
omission to state a material fact relates to information supplied by such
indemnifying party or by such indemnified party, and the parties’ relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission. The parties hereto agree that it would not be just
and equitable if contributions pursuant to this Section 6(d) were determined
by
pro rata allocation (even if the holders were treated as one entity for such
purpose) or by any other method of allocation which does not take account of
the
equitable considerations referred to in this Section 6(d). The amount paid
or
payable by an indemnified party as a result of the losses, claims, damages,
or
liabilities (or actions in respect thereof) referred to above shall be deemed
to
include any legal or other fees or expenses reasonably incurred by such
indemnified party in connection with investigating or defending any such action
or claim. Notwithstanding the provisions of this Section 6(d), no holder shall
be required to contribute any amount in excess of the amount by which the dollar
amount of the proceeds received by such holder from the sale of any Registrable
Securities (after deducting any fees, discounts and commissions applicable
thereto) exceeds the amount of any damages which such holder has otherwise
been
required to pay by reason of such untrue or alleged untrue statement or omission
or alleged omission. 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. The holders’ obligations in this Section 6(d) to contribute
shall be several in proportion to the principal amount of Registrable Securities
registered by them and not joint.
13
(e) The
obligations of the Company under this Section 6 shall be in addition to any
liability which the Company may otherwise have and shall extend, upon the same
terms and conditions, to each officer, director and partner of each holder
and
each person, if any, who controls any holder within the meaning of the
Securities Act; and the obligations of the holders contemplated by this Section
6 shall be in addition to any liability which the respective holder may
otherwise have and shall extend, upon the same terms and conditions, to each
officer and director of the Company (including any person who, with his consent,
is named in any registration statement as about to become a director of the
Company) and to each person, if any, who controls the Company within the meaning
of the Securities Act.
Section
7. Rule
144.
The
Company covenants to the holders of Registrable Securities that to the extent
it
shall be required to do so under the Exchange Act, the Company shall timely
file
the reports required to be filed by it under the Exchange Act or the Securities
Act (including the reports under Section 13 and 15(d) of the Exchange Act
referred to in subparagraph (c)(1) of Rule 144) and the rules and regulations
adopted by the Commission thereunder, and shall take such further action as
any
holder of Registrable Securities may reasonably request, all to the extent
required from time to time to enable such holder to sell Registrable Securities
without registration under the Securities Act within the limitations of the
exemption provided by Rule 144, as such Rule may be amended from time to time,
or any similar or successor rule or regulation hereafter adopted by the
Commission. Upon the request of any holder of Registrable Securities in
connection with that holder’s sale pursuant to Rule 144, the Company shall
deliver to such holder a written statement as to whether it has complied with
such requirements.
Section
8. Miscellaneous.
(a) No
Inconsistent Agreements.
The
Company represents, warrants, covenants and agrees that it has not granted,
and
shall not grant, registration rights with respect to Registrable Securities
or
any other securities which would be inconsistent with the terms contained in
this Registration Rights Agreement.
(b) Specific
Performance.
The
parties hereto acknowledge that there would be no adequate remedy at law if
the
Company fails to perform any of its obligations hereunder and that the
Purchasers and the holders from time to time of the Registrable Securities
may
be irreparably harmed by any such failure, and accordingly agree that the
Purchasers and such holders, in addition to any other remedy to which they
may
be entitled at law or in equity, shall be entitled to compel specific
performance of the obligations of the Company under this Registration Rights
Agreement in accordance with the terms and conditions of this Registration
Rights Agreement, in any court of the United States or any State thereof having
jurisdiction.
14
(c) Notices.
All
notices, requests, claims, demands, waivers and other communications hereunder
shall be in writing and shall be deemed to have been duly given when delivered
by hand, if delivered personally, by facsimile or by courier, or three days
after being deposited in the mail (registered or certified mail, postage
prepaid, return receipt requested) as follows: If to the Company, to it at
Nextwave Wireless, Inc., 00000 Xxxx Xxxxx Xxxxx, Xxx Xxxxx, Xxxxxxxxxx 00000,
Attention: Xxxxx Xxxxxx, Esq. with a copy to Weil, Gotshal & Xxxxxx LLP, 000
Xxxxx Xxxxxx, Xxx Xxxx , Xxx Xxxx 00000, Attention: Xxxxxx X. Xxxxxxx, Esq.,
and
if to a holder, to the address of such holder set forth in the security register
or other records of the Company, or to such other address as the Company or
any
such holder may have furnished to the other in writing in accordance herewith,
except that notices of change of address shall be effective only upon receipt.
(d) Parties
in Interest.
All the
terms and provisions of this Registration Rights Agreement shall be binding
upon, shall inure to the benefit of and shall be enforceable by the parties
hereto and the holders from time to time of the Registrable Securities and
the
respective successors and assigns of the parties hereto and such holders. In
the
event that any transferee of any holder of Registrable Securities shall acquire
Registrable Securities, in any manner, whether by gift, bequest, purchase,
operation of law or otherwise, such transferee shall, without any further
writing or action of any kind, be deemed a beneficiary hereof for all purposes
and such Registrable Securiteis shall be held subject to all of the terms of
this Registration Rights Agreement, and by taking and holding such Registrable
Securities such transferee shall be entitled to receive the benefits of, and
be
conclusively deemed to have agreed to be bound by all of the applicable terms
and provisions of, this Registration Rights Agreement. If the Company shall
so
request, any such successor, assign or transferee shall agree in writing to
acquire and hold the Registrable Securities subject to all of the applicable
terms hereof.
(e)
Survival.
The
respective indemnities, agreements, representations, warranties and each other
provision set forth in this Registration Rights Agreement or made pursuant
hereto shall remain in full force and effect regardless of any investigation
(or
statement as to the results thereof) made by or on behalf of any holder of
Registrable Securities, any director, officer or partner of such holder or
any
director, officer or partner thereof, or any controlling person of any of the
foregoing, and shall survive delivery of and payment for the Registrable
Securities pursuant to the Purchase Agreement and the transfer and registration
of Registrable Securities by such holder and the consummation of the
transactions contemplated herein.
(f) Governing
Law.
This
Registration Rights Agreement shall be governed by and construed in accordance
with the laws of the State of New York.
15
(g) EACH
PARTY HERETO IRREVOCABLY AND UNCONDITIONALLY CONSENTS TO SUBMIT TO THE EXCLUSIVE
JURISDICTION OF COURTS OF UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT
OF NEW YORK, OR THE STATE OF NEW YORK, AND ANY APPELLATE COURT THEREFROM, FOR
THE RESOLUTION OF ANY AND ALL DISPUTES, CONTROVERSIES, CONFLICTS, LITIGATION
OR
ACTIONS ARISING OUT OF OR RELATING TO THIS AGREEMENT AND THE SUBJECT MATTER
HEREOF AND AGREES NOT TO COMMENCE ANY LITIGATION OR ACTIONS ARISING OUT OF
OR
RELATING TO THIS AGREEMENT AND THE SUBJECT MATTER HEREOF IN ANY OTHER
COURT.
(h) Headings.
The
descriptive headings of the several Sections and paragraphs of this Registration
Rights Agreement are inserted for convenience only, do not constitute a part
of
this Registration Rights Agreement and shall not affect in any way the meaning
or interpretation of this Registration Rights Agreement.
(i) Entire
Agreement; Amendments.
This
Registration Rights Agreement and the other writings referred to herein or
delivered pursuant hereto which form a part hereof contain the entire
understanding of the parties with respect to its subject matter. This
Registration Rights Agreement supersedes all prior agreements and understandings
between the parties with respect to its subject matter. This Registration Rights
Agreement may be amended and the observance of any term of this Registration
Rights Agreement may be waived (either generally or in a particular instance
and
either retroactively or prospectively) only by a written instrument duly
executed by the Company and the holders of at least a majority of the
Registrable Securities at the time outstanding. Each holder of any Registrable
Securities at the time or thereafter outstanding shall be bound by any amendment
or waiver effected pursuant to this Section 8(i), whether or not any notice,
writing or marking indicating such amendment or waiver appears on such
Registrable Securities or is delivered to such holder.
(j) Inspection.
For so
long as this Registration Rights Agreement shall be in effect, this Registration
Rights Agreement and a complete list of the names and addresses of all the
holders of Registrable Securities shall be made available for inspection and
copying on any business day by any holder of Registrable Securities for proper
purposes only (which shall include any purpose related to the rights of the
holders of Registrable Securities under the Securities and this Agreement)
at
the offices of the Company at the address thereof set forth in Section 8(c)
above.
(k) Counterparts.
This
Registration Rights Agreement may be executed by the parties in counterparts,
each of which shall be deemed to be an original, but all such respective
counterparts shall together constitute one and the same instrument. If the
foregoing is in accordance with your understanding, please sign and return
to us
counterparts hereof, and upon the acceptance hereof by you, on behalf of each
of
the Purchasers, this letter and such acceptance hereof shall constitute a
binding agreement among the Purchasers and the Company.
16
Very
truly yours,
| NEXTWAVE WIRELESS INC. | ||
| |
|
|
| By: | /s/ | |
|
Name: Xxxxx Xxxxxx |
||
| Title: Executive Vice President | ||
S-1
Accepted
as of the date hereof:
KINGS
ROAD INVESTMENTS LTD.
/s/
Name:
Title:
YORK
CAPITAL MANAGEMENT, L.P.
| By: | /s/ |
| Name: | |
| Title: |
YORK
INVESTMENT LIMITED
| By: | /s/ |
| Name: | |
| Title: |
YORK
CREDIT OPPORTUNITIES FUND, L.P.
| By: | /s/ |
| Name: | |
| Title: |
YORK
SELECT, L.P.
| By: | /s/ |
| Name: | |
| Title: |
YORK
SELECT UNIT TRUST
| By: | /s/ |
| Name: | |
| Title: |
YORK
GLOBAL VALUE PARTNERS, L.P.
| By: | /s/ |
| Name: | |
| Title: |
YORK
ENHANCED STRATEGIES FUND, LLC
| By: | /s/ |
| Name: | |
| Title: |
D.E.
SHAW
LAMINAR PORTFOLIOS, L.L.C.
| By: | /s/ |
| Name: | |
| Title: |
D.E.
SHAW
VALENCE PORTFOLIOS, L.L.C.
| By: | /s/ |
| Name: | |
| Title: |
XXXXXXXXX
OFFSHORE LEVERAGED ASSETS, LTD.
| By: | /s/ |
| Name: | |
| Title: |
HIGHBRIDGE
INTERNATIONAL LLC
By:
HIGHBRIDGE CAPITAL MANAGEMENT LLC
| By: | /s/ |
| Name: | |
| Title: |
INVESTCORP
INTERLACHEN MULTI-STRATEGY MASTER FUND LIMITED
| By: | /s/ |
| Name: | |
| Title: |
AVENUE
ENTITIES SIGNATURES TO BE PROVIDED BY OMM
| By: | /s/ |
| Name: | |
| Title: |
Exhibit
A
INSTRUCTION
TO DTC PARTICIPANTS
(Date
of Mailing)
URGENT
- IMMEDIATE ATTENTION REQUESTED
DEADLINE
FOR RESPONSE: [DATE] *
The
Company is in the process of registering the Securities under the Securities
Act
of 1933 for resale by the beneficial owners thereof. In order to have their
Securities included in the registration statement, beneficial owners must
complete and return the enclosed Notice of Registration Statement and Selling
Securityholder Questionnaire.
|
*
|
Not
less than 20 calendar days from date of mailing.
|
Notice
of
Registration Statement
and
Selling
Securityholder Questionnaire
(Date)
Reference
is hereby made to the Registration Rights Agreement (the “Registration
Rights Agreement”)
among
NEXTWAVE WIRELESS INC. (the “Company”),
and
the Purchasers named therein. Pursuant to the Registration Rights Agreement,
the
Company has filed with the United States Securities and Exchange Commission
(the
“Commission”)
a
registration statement on Form
(the
“Shelf
Registration Statement”)
for
the registration and resale under Rule 415 of the Securities Act of 1933, as
amended (the “Securities
Act”),
of
the Company’s Common Stock (the
“Securities”).
A
copy of the Registration Rights Agreement is attached hereto. All capitalized
terms not otherwise defined herein shall have the meanings ascribed thereto
in
the Registration Rights Agreement.
Each
beneficial owner of Registrable Securities (as defined below) is entitled to
have the Registrable Securities beneficially owned by it included in the Shelf
Registration Statement. In order to have Registrable Securities included in
the
Shelf Registration Statement, this Notice of Registration Statement and Selling
Securityholder Questionnaire (“Notice
and Questionnaire”)
must
be completed, executed and delivered to the Company’s counsel at the address set
forth herein for receipt ON OR BEFORE [Deadline
For Response].
Beneficial owners of Registrable Securities who do not complete, execute and
return this Notice and Questionnaire by such date (i) will not be named as
selling securityholders in the Shelf Registration Statement and (ii) may not
use
the Prospectus forming a part thereof for resales of Registrable Securities.
Certain
legal consequences arise from being named as a selling securityholder in the
Shelf Registration Statement and related Prospectus. Accordingly, holders and
beneficial owners of Registrable Securities are advised to consult their own
securities law counsel regarding the consequences of being named or not being
named as a selling securityholder in the Shelf Registration Statement and
related Prospectus.
The
term
“Registrable
Securities”
is
defined in the Registration Rights Agreement.
A-2
ELECTION
The
undersigned holder (the “Selling
Securityholder”)
of
Registrable Securities hereby elects to include in the Shelf Registration
Statement the Registrable Securities beneficially owned by it and listed below
in Item (3). The undersigned, by signing and returning this Notice and
Questionnaire, agrees to be bound with respect to such Registrable Securities
by
the terms and conditions of this Notice and Questionnaire and the Registration
Rights Agreement, including, without limitation, Section 6 of the Registration
Rights Agreement, as if the undersigned Selling Securityholder were an original
party thereto.
The
Selling Securityholder hereby provides the following information to the Company
and represents and warrants that such information is accurate and complete:
A-3
QUESTIONNAIRE
|
(1)
|
(a)
Full Legal Name of Selling Securityholder:
|
|
|
(b)
|
Full
Legal Name of Registered Holder (if not the same as in (a) above)
of
Registrable Securities Listed in Item (3) below:
|
|
|
(c)
|
Full
Legal Name of DTC Participant (if applicable and if not the same
as (b)
above) Through Which Registrable Securities Listed in Item (3) below
are
Held:
|
|
(2)
|
Address
for Notices to Selling Securityholder:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Telephone:
|
|
|
|
|
|
Fax:
|
|
|
|
|
|
Contact Person:
|
|
|
|
|
|
(3)
|
Beneficial
Ownership of Securities:
|
Except
as set forth below in this Item (3), the undersigned does not beneficially
own
any Securities.
|
|
(a)
|
Number
of shares of Registrable Securities beneficially owned:
|
|
|
(b)
|
Number
of shares of Securities other than Registrable Securities beneficially
owned:
|
|
|
(c)
|
Number
of shares of Registrable Securities which the undersigned wishes
to be
included in the Shelf Registration Statement:
|
|
(4)
|
Beneficial
Ownership of Other Securities of the Company:
|
A-4
Except
as set forth below in this Item (4), the undersigned Selling Securityholder
is
not the beneficial or registered owner of any other securities of the Company,
other than the Securities listed above in Item (3).
State
any
exceptions here:
|
(5)
|
Relationships
with the Company:
|
Except
as set forth below, neither the Selling Securityholder nor any of its
affiliates, officers, directors or principal equity holders (5% or more) has
held any position or office or has had any other material relationship with
the
Company (or its predecessors or affiliates) during the past three
years.
State
any
exceptions here:
|
(6)
|
Plan
of Distribution:
|
Except
as set forth below, the undersigned Selling Securityholder intends to distribute
the Registrable Securities listed above in Item (3) only as follows (if at
all):
Such Registrable Securities may be sold from time to time directly by the
undersigned Selling Securityholder or, alternatively, through broker-dealers
or
agents. Such Registrable Securities may be sold in one or more transactions
at
fixed prices, at prevailing market prices at the time of sale, at varying prices
determined at the time of sale, or at negotiated prices. Such sales may be
effected in transactions (which may involve crosses or block transactions)
(i)
on any national securities exchange or quotation service on which the Registered
Securities may be listed or quoted at the time of sale, (ii) in the
over-the-counter market, (iii) in transactions otherwise than on such exchanges
or services or in the over-the-counter market, or (iv) through the writing
of
options. In connection with sales of the Registrable Securities or otherwise,
the Selling Securityholder may enter into hedging transactions with
broker-dealers, which may in turn engage in short sales of the Registrable
Securities in the course of hedging the positions they assume. The Selling
Securityholder may also sell Registrable Securities short and deliver
Registrable Securities to close out such short positions, or loan or pledge
Registrable Securities to broker-dealers that in turn may sell such securities.
State
any
exceptions here:
By
signing below, the Selling Securityholder acknowledges that it understands
its
obligation to comply, and agrees that it will comply, with the provisions of
the
Exchange Act and the rules and regulations thereunder, particularly Regulation
M.
A-5
In
the
event that the Selling Securityholder transfers all or any portion of the
Registrable Securities listed in Item (3) above after the date on which such
information is provided to the Company, the Selling Securityholder agrees to
notify the transferee(s) at the time of the transfer of its rights and
obligations under this Notice and Questionnaire and the Registration Rights
Agreement.
By
signing below, the Selling Securityholder consents to the disclosure of the
information contained herein in its answers to Items (1) through (6) above
and
the inclusion of such information in the Shelf Registration Statement and
related Prospectus. The Selling Securityholder understands that such information
will be relied upon by the Company in connection with the preparation of the
Shelf Registration Statement and related Prospectus.
In
accordance with the Selling Securityholder’s obligation under Section 3(d) of
the Registration Rights Agreement to provide such information as may be required
by law for inclusion in the Shelf Registration Statement, the Selling
Securityholder agrees to promptly notify the Company of any inaccuracies or
changes in the information provided herein which may occur subsequent to the
date hereof at any time while the Shelf Registration Statement remains in
effect. All notices hereunder and pursuant to the Registration Rights Agreement
shall be made in writing, by hand-delivery, first-class mail, or air courier
guaranteeing overnight delivery as follows:
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(i) To
the Company:
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00000
Xxxx Xxxxx Xxxxx
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Xxx
Xxxxx, XX 00000
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Attention:
General Counsel
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(ii) With
a copy to:
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Weil,
Gotshal & Xxxxxx LLP
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000
Xxxxx Xxxxxx
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Xxx
Xxxx, XX 00000
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Attention:
Xxxxxx X. Xxxxxxx
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A-6
Once
this
Notice and Questionnaire is executed by the Selling Securityholder and received
by the Company’s counsel, the terms of this Notice and Questionnaire, and the
representations and warranties contained herein, shall be binding on, shall
inure to the benefit of and shall be enforceable by the respective successors,
heirs, personal representatives, and assigns of the Company and the Selling
Securityholder (with respect to the Registrable Securities beneficially owned
by
such Selling Securityholder and listed in Item (3) above). This Agreement shall
be governed in all respects by the laws of the State of New York.
A-7
IN
WITNESS WHEREOF, the undersigned, by authority duly given, has caused this
Notice and Questionnaire to be executed and delivered either in person or by
its
duly authorized agent.
Dated:
____________
Selling
Securityholder
(Print/type
full legal name of beneficial owner of Registrable Securities)
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By:
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Name:
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Title:
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PLEASE
RETURN THE COMPLETED AND EXECUTED NOTICE AND QUESTIONNAIRE FOR RECEIPT ON OR
BEFORE [DEADLINE
FOR RESPONSE]
TO THE
COMPANY’S COUNSEL AT:
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Weil,
Gotshal & Xxxxxx LLP
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000
Xxxxx Xxxxxx
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Xxx
Xxxx, XX 00000
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Attention:
Xxxxxx X. Xxxxxxx
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A-8
