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Exhibit 4.4
SECOND AMENDED AND RESTATED AGREEMENT
AMONG SERIES E, SERIES F AND SERIES G PREFERRED STOCKHOLDERS
AND SENIOR REGISTRATION RIGHTS AGREEMENT
This Second Amended and Restated Agreement Among Series E, Series F and Series
G Preferred Stockholders and Senior Registration Rights Agreement (this
"Agreement") which amends and restates the Amended and Restated Agreement among
Series E and Series F Preferred Stockholders and Senior Registration Rights
Agreement, dated as of August 28, 1998, as amended as of June 11, 1999 (the
"Restated Agreement") by and among AirNet Communications Corporation, a
Delaware corporation (the "Company"), Xxxxxx Corporation, a Delaware
corporation ("Xxxxxx Corporation"), Tandem PCS Investments, L.P., a Delaware
limited partnership ("Tandem"), Xxxxx Capital Management, L.P. ("Xxxxx"), SCP
Private Equity Partners, L.P. ("SCP"), HVFM-I, L.P. ("HVFM"), APA Excelsior
III, L.P. ("APA") and such other purchasers identified therein (Tandem, Xxxxx,
SCP, HVFM, APA and such other Purchasers are collectively, "Purchasers"), the
Series E Preferred Stockholders listed on Exhibit A hereto (the "Series E
Investors"), the Series F Preferred Stockholders listed on Exhibit B hereto
(the "Series F Investors"), is made as of September 7, 1999 by and among the
Company, Xxxxxx Corporation, the Purchasers, the Series E Investors, the Series
F Investors and the Series G Preferred Stockholders listed on Exhibit C hereto
(the "Series G Investors"). Capitalized terms used but not defined herein have
the meanings ascribed to such terms in the "Stock Purchase Agreement" (as
defined below).
WITNESSETH:
WHEREAS, pursuant to those certain Confidential Stock Purchase Agreements,
dated as of the date hereof, among the Company and the Series G Investors (each
a "Stock Purchase Agreement"), the Series G Investors have purchased
230,769,231 shares of Series G Preferred Stock, in the aggregate (such shares
of Series G Preferred Stock, together with the "Common Stock" (as defined
below) into which such shares of Series G Preferred Stock are convertible, are
hereinafter referred to collectively as the "Series G Registrable Securities");
WHEREAS, it is a condition precedent to the Series G Investors making the
investments contemplated by the Stock Purchase Agreement that the Company grant
to the Series G Investors certain registration rights with respect to the
Series G Registrable Securities as provided herein; and
WHEREAS, the parties hereto desire to amend and restate the Restated Agreement
as provided herein and by executing this Agreement consent to the terms and
provisions hereof;
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NOW, THEREFORE, in consideration of the mutual agreements herein contained and
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties agree as follows:
ARTICLE I
DEFINITIONS
1.1 Definitions. Unless otherwise defined herein, capitalized terms
used in this Agreement shall have the meanings set forth in the Stock Purchase
Agreement. The following capitalized terms shall have the following meanings:
"1999 Note Purchase Agreements" shall mean, collectively, the
Convertible Note and Warrant Purchase Agreements, dated as of June 11, 1999 or
August 2, 1999, among the Company and certain of the Purchasers, individually,
pursuant to which such Purchasers purchased (i) Notes in an aggregate principal
amount equal to $6,338,187.06, which are convertible into shares of Series G
Preferred Stock and (ii) Warrants to purchase shares of Common Stock (the
"Warrants").
"Affiliate" means, as to any person, any other person that,
directly or indirectly, is in control of, is controlled by, or is under common
control with, such person. For purposes of this definition, "control" of a
person means the power, directly or indirectly, either to (i) vote 30% or more
of the securities having ordinary voting power for the election of directors of
such person or (ii) direct or cause the direction of the management and
policies of' such person, whether by contract or otherwise.
"Board" shall mean the Board of Directors of the Company.
"Commission" shall mean the Securities and Exchange Commission or
any other federal agency at the time administering the Securities Act.
"Common Stock" shall mean the Company's Common Stock, par value
$.001 per share.
"Convertible Securities" shall mean the Series E Convertible
Securities, the Series F Convertible Securities and the Series G Convertible
Securities.
"Form S-3" shall mean a Registration Statement on Form S-3, or any
substantially similar form then in effect, under the Securities Act.
"Xxxxxx" means Xxxxxx Corporation, a Delaware corporation,
together with any subsidiaries of Xxxxxx to which it assigns, in whole or in
part, its rights and/or obligations hereunder, provided that (a) Xxxxxx
Corporation and any such subsidiaries shall be treated as a single person for
purposes of this Agreement and (b) Xxxxxx Corporation shall be conclusively
presumed to be authorized to act on behalf of any such subsidiaries.
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"Xxxxxx Warrant" means the Series E Preferred Stock Purchase
Warrant, dated September 12, 1997, issued by the Company to Xxxxxx with respect
to 11,229,697.04 shares of Series E Preferred Stock, as such Warrant may be
amended from time to time.
"Holder" shall mean any holder of outstanding Restricted Securities
"Initiating Holder(s)" shall mean (i) any Holder or Holders who in
the aggregate hold (a) at least twenty-five percent (25%) of the Series E
Registrable Securities, (b) at least twenty-five percent (25%) of the Series F
Registrable Securities, or (c) at least twenty-five percent (25%) of the Series
G Registrable Securities, and (ii) each Significant Holder.
"Key Management" shall mean, at any time, any director or
executive officer of the Company at such time.
"Material Adverse Event" shall mean an occurrence having a
consequence that either (i) is materially adverse as to the business,
properties, prospects or financial condition of the Company or (ii) is
reasonably foreseeable, has a reasonable likelihood of occurring, and if it
were to occur might materially adversely effect the business, properties,
prospects or financial condition of the Company.
"Notes" shall mean those certain Convertible Promissory Notes in
an aggregate principal amount equal to $6,338,187.06, dated as of June 11, 1999
or August 2, 1999, and executed by the Company, as such Notes may be amended
from time to time.
"Prior Series Agreement" shall mean the Company's Second Amended
and Restated Shareholders' and Registration Rights Agreement dated as of April
16, 1997 exercised in connection with the Series A, Series B, Series C and
Series D Voting Convertible Preferred Stock.
"Purchaser" shall have the meaning ascribed to such term in the
first paragraph hereof.
"Purchaser Securities" shall mean the Notes, the Warrants, the
shares of Series G Preferred Stock into which the Notes are convertible and any
shares of Common Stock into which such shares of Series G Preferred Stock are
convertible.
"Qualified Public Offering" shall mean the consummation of a firm
commitment public offering of Common Stock, underwritten by an underwriter
reasonably acceptable to the holders of a majority of the then outstanding
voting power of the Senior Preferred Stock, voting together as a single class,
registered under the Securities Act, other than a registration relating solely
to a transaction under Rule 145 under the Securities Act (or any successor
thereto) or to an employee benefit plan of the Company, in which (i) the
aggregate sales price to the Company of which (before deduction of underwriting
discount, commissions and expenses of sale) is not less than $20,000,000, and
(ii) the product of the price per share paid by the public for the Common Stock
sold in such offering, multiplied by the number of shares of Common Stock
outstanding immediately after such offering, is not less than $220,000,000.
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The terms "Register", "Registered", and "Registration" refer to a
registration effected by preparing and filing a Registration Statement, and the
declaration or ordering of the effectiveness of such Registration Statement.
"Registrable Securities" shall mean (i) all Common Stock issued or
issuable upon conversion of any of the Convertible Securities, other than
Common Stock sold pursuant to a Registration Statement, (ii) any securities of
the Company deemed to be Registrable Securities as provided in Section 2.7 of
this Agreement, and (iii) all Common Stock, other than Common Stock sold
pursuant to a Registration Statement, issued or issuable upon (a) the exercise
of any Warrant; (b) the exercise of the conversion rights set forth in, or
automatic conversion of, any Note; or (c) the exercise of conversion rights in
respect of, or automatic conversion of, any other Purchaser Securities.
"Registration Expenses" shall mean all expenses incurred by the
Company in complying with Article II of this Agreement, including, without
limitation, all federal and state registration, qualification and filing fees,
printing expenses, fees and disbursements of counsel for the Company and one
special counsel (if different from counsel for the Company) for the Holders
participating in any such Registration, blue sky fees and expenses, and the
expense of any special audits incident to or required by any such Registration.
"Restricted Securities" shall mean the Convertible Securities and
the Registrable Securities.
"Registration Statement" shall mean a registration statement in
compliance with the Securities Act.
"Securities Act" shall mean the Securities Act of 1933, as
amended, or any similar federal statute, and the rules and regulations of the
Commission thereunder, all as the same shall be in effect at the time.
"Selling Expenses" shall mean all underwriting discounts and
selling commissions applicable to the sale of Registrable Securities pursuant
to this Agreement.
"Senior Preferred Stock" shall mean, collectively, the Series E
Preferred Stock, the Series F Preferred Stock and the Series G Preferred Stock.
"Series E Convertible Securities" shall mean the Series E
Preferred Stock, the Xxxxxx Warrant and the shares of Series E Preferred Stock
issuable upon exercise of the Xxxxxx Warrant.
"Series E Preferred Stock" shall mean the 543,624,378 issued and
outstanding shares of Series E Senior Voting Convertible Preferred Stock, par
value $0.01 per share.
"Series E Registrable Securities" shall mean all Registrable
Securities issued or issuable upon conversion of any of the Series E
Convertible Securities.
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"Series F Convertible Securities" shall mean the Series F
Preferred Stock.
"Series F Preferred Stock" shall mean the 283,471,155 issued and
outstanding shares of Series F Senior Voting Convertible Preferred Stock, par
value $0.01 per share.
"Series F Registrable Securities" shall mean all Registrable
Securities issued or issuable upon conversion of any of the Series F
Convertible Securities.
"Series G Convertible Securities" shall mean the Series G
Preferred Stock.
"Series G Preferred Stock" shall mean the _________ issued and
outstanding shares of Series G Senior Voting Convertible Preferred Stock, par
value $0.01 per share.
"Series G Registrable Securities" shall mean all Registrable
Securities issued or issuable upon conversion of any of the Series G
Convertible Securities.
"Significant Holder" shall mean (i) each person or group of
related persons under common ownership or management control (such persons,
"Related Persons") that purchased on or before September 12, 1997 and continues
to own shares of Series E Preferred Stock with an aggregate Stated Value of not
less than $3,000,000; (ii) the initial transferee or assignee (whether a single
person or a group of Related Persons) of Series E Preferred Stock with an
aggregate Stated Value of not less than $3,000,000 from a Significant Holder
described in clause (i); (iii) the purchaser of the Company's Senior Secured
Convertible Promissory Note and Series E Preferred Stock Purchase Warrant
issued on September 15, 1997 and September 12, 1997, respectively, both of
which are exercisable for Series E Preferred Stock (collectively, the "Series E
Rights"), including entities controlling, controlled by, and under common
control with, such purchaser (collectively, the "Series E Rights Holder");
provided that the Series E Rights Holder (x) continues to own Series E
Preferred Stock, or Series E Rights exercisable for shares of Series E
Preferred Stock, with an aggregate Stated Value of at least $1,000,000 and (y)
does not have any transferee or assignee that qualifies as a Significant Holder
under clause (iv); and (iv) one initial transferee or assignee (whether a
single person or a group of Related Persons) of the Series E Rights Holder that
owns shares of Series E Preferred Stock, or Series E Rights exercisable for
shares of Series E Preferred Stock, with an aggregate Stated Value of at least
$1,000,000.
"Significant Investor" shall have the meaning set forth in the
Stock Purchase Agreement.
"Warrants" shall have the meaning ascribed to such term in the
definition of the 1999 Note Purchase Agreements.
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ARTICLE II
REGISTRATION RIGHTS
2.1 Demand Registration.
(a) Request for Registration on Form Other than Form S-3.
Subject to the terms of this Agreement, in the event that the Company shall
receive from Initiating Holder(s) at any time after the earlier of (i)
September 13, 2000, or (ii) three (3) months after the effective date of a
Qualified Public Offering (provided that, if so required in writing by the
underwriter(s) of the Qualified Public Offering, such three-month period may be
extended to a period not to exceed the greater of (I) the length of the lock-up
period imposed on members of senior management of the Company in connection
with the Qualified Public Offering and (II) six (6) months, provided further
that if such three-month period is so extended, the Company shall use its
reasonable best efforts to arrange for the Registration provided for in this
Section 2.1(a) to be effective at or before the end of such extended period), a
written request that the Company effect a Registration with respect to all or a
part of the Registrable Securities of such Initiating Holder(s) on a form other
than Form S-3 for an offering of (x) in the case of a request delivered by
Initiating Holder(s), other than a Significant Holder of at least twenty-five
percent (25%) of the then outstanding Series E Registrable Securities, at least
twenty-five percent (25%) of the then outstanding Series F Registrable
Securities or at least twenty-five percent (25%) of the then outstanding Series
G Registrable Securities, or (y) in the case of a request from an Initiating
Holder who is a single Significant Holder, at least fifty percent (50%) of the
then outstanding Registrable Securities represented by Convertible Securities
owned by such Significant Holder, the Company shall (A) promptly give written
notice of the proposed Registration to all other Holders and (B) as soon as
practicable, use its best efforts to effect Registration of the Registrable
Securities specified in such request of the Initiating Holder(s), together with
any Registrable Securities of any Holder joining in such request as are
specified in a written request given within twenty (20) business days after
written notice from the Company. The Company shall not be obligated to take any
action to effect any such Registration pursuant to this Section 2.1(a) (i)
except as provided above, within the three (3) to six (6) months period
referred to in the first sentence of this Section 2.1(a) or (ii) after the
Company has effected two (2) such Registrations pursuant to this Section 2.1(a)
in which the Company has not Registered securities for its own account and such
Registrations have been declared effective. If the number of Registrable
Securities proposed to be Registered by the Initiating Holder(s) is reduced
pursuant to Section 2.1(e)(iii), such Registration shall not count toward the
limit of two (2) Registrations referred to in the preceding sentence.
(b) Right of Deferral of Registration on Form Other than Form
S-3. If the Company shall furnish to all such Holders who joined in the request
for any Registration pursuant to Section 2.1(a) a certificate signed by the
President of the Company stating that, in the good faith judgment of the Board,
it would be detrimental to the Company for any Registration to be effected as
requested under Section 2.1(a), the Company shall have the right to defer the
filing of a Registration Statement with respect to such requested Registration
for a period of not more than one hundred twenty (120) days from delivery of
the request of the Initiating Holders;
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provided, however, that the Company may not utilize this right more than once
in any twelve-month period.
(c) Request for Registration on Form S-3. Subject to the
terms of this Agreement, in the event that the Company receives from one or
more Initiating Holders a written request that the Company effect any
Registration on Form S-3 (or any successor form to Form S-3 regardless of its
designation) at a time when the Company is eligible to Register securities on
Form S-3 (or any successor form to Form S-3 regardless of its designation) for
an offering of Registrable Securities, the Company will promptly give written
notice of the proposed Registration to all other Holders and will as soon as
practicable use its best efforts to effect Registration of the Registrable
Securities specified in such request, together with all of such Registrable
Securities of any Holder joining in such request as are specified in a written
request delivered to the Company within twenty (20) business days after written
notice from the Company of the proposed Registration on Form S-3. There shall
be no limit to the number of occasions on which the Company shall be obligated
to effect Registration under this Section 2.1(c), but the Company shall not be
required to effect more than two (2) such Registrations in any calendar year.
(d) Registration of Other Securities in Demand Registration.
Any Registration Statement filed pursuant to the request of the Initiating
Holders under this Article II may, subject to the provisions of Sections 2.1(e)
and 2.7, include securities of the Company other than Registrable Securities,
including, without limitation, any securities that the Company is required or
permitted to register pursuant to any other registration rights agreement.
(e) Underwriting in Demand Registration.
(i) Notice of Underwriting. If the Initiating
Holders intend to distribute the Registrable Securities covered by the request
by means of an underwriting, they shall so advise the Company, as a part of
their request made pursuant to this Article II, and the Company shall include
such information in the written notice referred to in Section 2.1(a) or (c).
The right of any Holder to Registration pursuant to this Section 2.1 shall be
conditioned upon such Holder's agreement to participate in such underwriting
and the inclusion of such Holder's Registrable Securities in the underwriting.
(ii) Selection of Underwriter in Demand
Registration. The Company shall (together with all Holders proposing to
distribute their Registrable Securities through such underwriting) enter into
an underwriting agreement with the representative ("Underwriter's
Representative") of the underwriter or underwriters selected for such
underwriting by the Holders of a majority of the Registrable Securities being
Registered pursuant to the written request of the Initiating Holders or
Significant Holder, as the case may be, and agreed to by the Company, which
agreement shall not be unreasonably withheld.
(iii) Marketing Limitation in Demand
Registration. In the event the Underwriter's Representative advises the
Initiating Holders or Significant Holder, as the case may be, in writing that
market factors (including, without limitation, the aggregate number of shares
of Common Stock requested to be Registered, the general condition of the
market, and the
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status of the persons proposing to sell securities pursuant to the
Registration) require a limitation of the number of shares to be underwritten,
then the Company will include in such Registration, first Registrable
Securities requested to be included in the Registration by Holders, second
securities proposed by any member of Key Management to be sold for his/her own
account, third securities proposed by the Company to be sold for its own
account or for the account of others at the Company's request, and fourth
securities to be included in such Registration pursuant to the Prior Series
Agreement, each pro rata based upon the number of shares of such securities
proposed to be sold and so requested to be included such that such Registration
does not exceed the Underwriter's Representative's limit. No Registrable
Securities or other securities excluded from the underwriting by reason of this
Section 2.1(e)(iii) shall be included in such Registration Statement.
(iv) Right of Withdrawal in Demand Registration. If
any Holder of Registrable Securities, or a holder of other securities entitled
(upon request) to be included in such Registration, disapproves of the terms of
the underwriting, such person may elect to withdraw therefrom by written notice
to the Company, the underwriter and the Initiating Holders delivered at least
seven (7) days prior to the effective date of the Registration Statement. The
securities so withdrawn shall also be withdrawn from the Registration
Statement.
(f) Blue Sky in Demand Registration. In the event of any
Registration pursuant to Section 2.1, the Company will exercise its best
efforts to Register and qualify the securities covered by the Registration
Statement under such Blue Sky or other securities laws of such jurisdictions as
shall be reasonably appropriate for the distribution of such securities;
provided, however, that (i) the Company shall not be required to qualify to do
business or to file a general consent to service of process in any such states
or jurisdictions, and (ii) notwithstanding anything in this Agreement to the
contrary, in the event any jurisdiction in which the securities shall be
qualified imposes a non-waivable requirement that expenses incurred in
connection with the qualification of the securities be borne by selling
stockholders, such expenses shall be payable pro rata by selling stockholders.
2.2 Piggyback Registration.
(a) Notice of Piggyback Registration and Inclusion of
Registrable Securities. Subject to the terms of this Agreement, in the event
the Company decides to Register any of its securities (either for its own
account or the account of a security holder other than pursuant to a demand
Registration) on a form that would be suitable for a Registration involving
Registrable Securities, the Company will (i) promptly give each Holder written
notice thereof (which shall include a list of the jurisdictions in which the
Company intends to attempt to qualify such securities under the applicable Blue
Sky or other state securities laws) and (ii) include in such Registration (and
any related qualification under Blue Sky laws or other compliance), and in any
underwriting involved therein, all the Registrable Securities specified in a
written request delivered to the Company by any Holder within fifteen (15) days
after delivery of such written notice from the Company.
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(b) Underwriting in Piggyback Registration.
(i) Notice of Underwriting in Piggyback
Registration. If the Registration of which the Company gives notice is for a
Registered public offering involving an underwriting, the Company shall so
advise the Holders as a part of the written notice given pursuant to Section
2.2(a). In such event, the right of any Holder to Registration shall be
conditioned upon such underwriting and the inclusion of such Holder's
Registrable Securities in such underwriting to the extent provided in this
Section 2.2. All Holders proposing to distribute their securities through such
underwriting shall (together with the Company and the other holders
distributing their securities through such underwriting) enter into an
underwriting agreement with the Underwriter's Representative for such offering.
The Holders shall have no right to participate in the selection of the
underwriters for an offering pursuant to this Section 2.2.
(ii) Marketing Limitation in Piggyback
Registration. In the event the Underwriter's Representative advises the Holders
seeking Registration of Registrable Securities pursuant to Section 2.2 in
writing that market factors (including, without limitation, the aggregate
number of shares of Common Stock requested to be Registered, the general
condition of the market, and the status of the persons proposing to sell
securities pursuant to the Registration) require a limitation of the number of
shares to be underwritten, the Underwriter's Representative (subject to the
allocation set forth in Section 2.2(b)(iii)) may exclude some or all
Registrable Securities from such Registration and underwriting.
(iii) Allocation of Shares in Piggyback
Registration. In the event that the Underwriter's Representative limits the
number of shares to be included in a Registration pursuant to Section
2.2(b)(ii), or shall otherwise require a limitation of the number of shares to
be included in the Registration, then the Company will include in such
Registration first securities proposed by the Company to be sold for its own
account; second securities included in such Registration pursuant to the Prior
Series Agreement, third Registrable Securities requested to be included in the
Registration by the Holders, and fourth securities proposed by any member of
Key Management to be sold for his/her own account, each pro rata based upon the
number of shares of such securities proposed to be sold and so requested to be
included such that such Registration does not exceed the Underwriter's
Representative's limit. No Registrable Securities or other securities excluded
from the underwriting by reason of this Section 2.2(b)(iii) shall be included
in the Registration Statement.
(iv) Right of Withdrawal in Piggyback
Registration. If any Holder disapproves of the terms of any such underwriting,
such person may elect to withdraw therefrom by written notice to the Company
and the underwriter delivered at least seven (7) days prior to the effective
date of the Registration Statement. Any Registrable Securities or other
securities excluded or withdrawn from such underwriting shall be withdrawn from
such Registration.
(c) Blue Sky in Piggyback Registration. In the event of
any Registration of Registrable Securities pursuant this to Section 2.2, the
Company will exercise its best efforts to Register and qualify the securities
covered by the Registration Statement under such other securities or Blue Sky
laws of such jurisdictions as shall be reasonably appropriate for the
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distribution of such securities; provided, however, that (i) the Company shall
not be required to qualify to do business or to file a general consent to
service of process in any such states or jurisdictions, and (ii)
notwithstanding anything in this Agreement to the contrary, in the event any
jurisdiction in which the securities shall be qualified imposes a non-waivable
requirement that expenses incurred in connection with the qualification of the
securities be borne by selling stockholders, such expenses shall be payable pro
rata by selling stockholders.
2.3 Expenses of Registration. All Registration Expenses incurred in
connection with two (2) Registrations pursuant to Section 2.1(a), three (3)
Registrations pursuant to Section 2.1(e) (Form S-3), and all Registrations
pursuant to Section 2.2 shall be borne by the Company. Notwithstanding the
above, the Company shall not be required to pay for any expenses of any
Registration proceeding begun pursuant to Section 2.1 if the Registration
request is subsequently withdrawn at the request of the Holder(s) of a majority
of the Registrable Securities to be Registered (which Holders shall bear such
expenses), provided, however, that if at the time of such withdrawal, the
Holder(s) have learned of a Material Adverse Event not known to the Holders at
the time of their request, then the Holders shall not be required to pay any
such expenses. All Selling Expenses shall be borne by the holders of the
securities Registered pro rata on the basis of the number of shares Registered.
2.4 Registration Procedures. The Company will keep each Holder whose
Registrable Securities are included in any Registration pursuant to this
Agreement advised as to the initiation and completion of such Registration. At
its expense, the Company will (a) use its best efforts to keep such
Registration effective for a period of one hundred eighty (180) days (or if
such Registration is a shelf Registration, the first date upon which all
Registrable Securities covered by such shelf Registration Statement shall have
been sold) or until the Holder or Holders have completed the distribution
described in the Registration Statement relating thereto, whichever first
occurs; and (b) furnish such number of prospectuses (including preliminary
prospectuses) and other documents as a Holder from time to time may reasonably
request. In connection with any Registration pursuant to this Agreement, the
Holder(s) participating therein shall have the right to obtain copies of, and
letters permitting them to rely upon, any of the following delivered to the
underwriter(s) or the Company: (a) any comfort letter(s) delivered by the
Company's independent public accountants, (b) any opinion(s) delivered by the
Company's counsel and (c) any officers' certificate(s) delivered by the
Company.
2.5 Information Furnished by Holder. It shall be a condition precedent
of the Company's obligations under this Agreement that each Holder of
Registrable Securities included in any Registration furnish to the Company such
information regarding such Holder and the distribution proposed by such Holder
or Holders as the Company may reasonably request.
2.6 Indemnification.
(a) Company's Indemnification of Holders. To the extent
permitted by law, the Company will indemnify each Holder, each of its officers,
directors, managers and constituent partners and members, legal counsel for the
Holders, and each person controlling such Holder, with respect to which
Registration, qualification or compliance of Registrable
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Securities has been effected pursuant to this Agreement, and each underwriter,
if any, and each person who controls each such underwriter (collectively,
"Holder Indemnitees"), against all claims, losses, damages or liabilities (or
actions in respect thereof) to the extent such claims, losses, damages or
liabilities arise out of or are based upon any untrue statement (or alleged
untrue statement) of a material fact contained in any prospectus or other
document (including any related Registration Statement) incident to any such
Registration, qualification or compliance, or are based on any omission (or
alleged omission) to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, or any
violation by the Company of any title or regulation promulgated under the
Securities Act applicable to the Company and relating to action or inaction
required of the Company in connection with any such Registration, qualification
or compliance, and the Company will reimburse each such Holder Indemnitee, for
any legal and any other expenses reasonably incurred in connection with
investigating or defending any such claim, loss, damage, liability or action;
provided, however, that the indemnity contained in this Section 2.6(a) shall
not apply to amounts paid in settlement of any such claim, loss, damage,
liability or action if settlement is effected without the consent of the
Company (which consent shall not unreasonably be withheld); and provided,
further, that the Company will not be liable in any such case to the extent
that any such claim, loss, damage, liability or expense arises out of or is
based upon any untrue statement or omission based upon written information
furnished to the Company by such Holder Indemnitee about such Holder Indemnitee
for use in connection with the offering of securities of the Company.
(b) Holders' Indemnification of Company. To the extent
permitted by law, each Holder will, if Registrable Securities held by such
Holder are included in the securities as to which such Registration,
qualification or compliance is being effected pursuant to this Agreement,
indemnify the Company, each of its directors and officers, each legal counsel
and independent accountant of the Company, each underwriter, if any, of the
Company's securities covered by such a Registration Statement, each person who
controls the Company or such underwriter within the meaning of the Securities
Act, and each other such Holder, each of its officers, directors, managers and
constituent partners and members and each person controlling such other Holder
(collectively, "Company Indemnitees"), against all claims, losses, damages and
liabilities (or actions in respect thereof) arising out of or based upon any
untrue statement (or alleged untrue statement) of a material fact obtained from
such Holder and contained in any such Registration Statement, prospectus,
offering circular or other document, or any omission (or alleged omission) to
state therein a material fact required to be stated therein or necessary to
make the statements therein not misleading, or any violation by such Holder of
any rule or regulation promulgated under the Securities Act applicable to such
Holder and relating to action or inaction required of such Holder in connection
with any such Registration, qualification or compliance; and will reimburse the
Company Indemnitees for any legal and any other expenses reasonably incurred in
connection with investigating or defending any such claim, loss, damage,
liability or action, in each case to the extent, but only to the extent, that
such untrue statement (or alleged untrue statement) or omission (or alleged
omission) is made in such registration statement, prospectus, offering circular
or other document in reliance upon and in conformity with written information
furnished to the Company by such Holder about such Holder and stated to be
specifically for use in connection with the offering of securities of the
Company, provided, however, that each Holder's liability under this Section
2.6(b) shall not exceed such Holder's
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proceeds from the offering of securities made in connection with such
Registration net of any reasonably determined selling expenses for the account
of such Holder.
(c) Indemnification Procedure. Promptly after receipt by an
indemnified party under this Section 2.6 of notice of the commencement of any
action, such indemnified party will, if a claim in respect thereof is to be
made against an indemnifying party under this Section 2.6, notify the
indemnifying party in writing of the commencement thereof and generally
summarize such action. The indemnifying party shall have the right to
participate in and to assume the defense of such claim; provided, however, that
the indemnifying party shall be entitled to select counsel for the defense of
such claim with the approval of any parties entitled to indemnification, which
approval shall not be unreasonably withheld; provided further, however, that if
either party reasonably determines that there may be a conflict between the
position of the indemnifying party and the indemnified party in conducting the
defense of such action, suit or proceeding by reason of recognized claims for
indemnity under this Section 2.6, then counsel for such party shall be entitled
to conduct the defense to the extent reasonably determined by such counsel to
be necessary to protect the interest of such party. The failure to notify an
indemnifying party promptly of the commencement of any such action, if
prejudicial to the ability of the indemnifying party to defend such action,
shall relieve such indemnifying party, to the extent so prejudiced, of any
liability to the indemnified party under this Section 2.6, but the omission so
to notify the indemnifying party will not relieve such party of any liability
that such party may have to any indemnified party otherwise other than under
this Section 2.6.
2.7 Limitations on Registration Rights Granted to Other
Securities. From and after the date of this Agreement, without the consent of
the Holders of at least (i) a majority of the Series E Registrable Securities,
voting as a separate single class on the basis of one vote for each share of
Series E Preferred Stock then outstanding, (ii) the Holders of at least 66 2/3%
of the Series F Registrable Securities, voting as a separate single class on
the basis of one vote for each share of Series F Preferred Stock then
outstanding, and (iii) the Holders of at least 60% of the Series G Registrable
Securities, voting as a separate single class on the basis of one vote for each
share of Series G Preferred Stock then outstanding, the Company shall not enter
into any agreement with any holder or prospective holder of any securities of
the Company providing for the granting to such holder of any Registration
rights except Registration rights that are either subordinate or equivalent in
all respects to those granted under this Agreement. In the case of such
equivalent rights, such additional holders shall be added as parties to this
Agreement with regard to any or all securities of the Company held by them as
to which Registration rights are granted. Any such additional parties shall
execute a counterpart of this Agreement, and upon execution by such additional
parties and by the Company, shall be considered a Holder for all purposes of
this Agreement. The additional parties and the additional securities that shall
be deemed to be Registrable Securities hereunder shall be identified in such
amendment.
2.8 Transfer of Rights. The right to cause the Company to Register
securities granted by the Company to the Holders under Sections 2.1 and 2.2 may
be assigned by any Holder to a transferee or assignee of any Restricted
Securities or Registrable Securities not previously sold to the public;
provided, however, that (a) the Company must receive written notice at the time
of said transfer, stating the name and address of said transferee or assignee
and identifying the
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13
securities with respect to which such rights are being assigned, and (b) the
transferee or assignee of such rights must not be a person deemed by the Board,
in its best judgment, to be a competitor of the Company.
2.9 Market Stand-off. The Holders hereby agree that, if so requested
by the Company and the Underwriter's Representative (if any), no Holder shall
sell or otherwise transfer any Registrable Securities or other securities of
the Company during the ninety (90) day period following the effective date of a
Registration Statement of the Company filed under the Securities Act (provided
that if so required in writing by the underwriter(s) of the offering to which
such Registration Statement relates, such 90-day period may be extended to a
period not to exceed the greater of (a) the length of the lock-up period
imposed on members of senior management of the Company in connection with such
offering or (b) one hundred eighty (180) days) provided that such restriction
shall only apply to the first two (2) Registration Statements of the Company to
become effective which include securities to be sold on behalf of the Company
to the public in an underwritten offering.
2.10 No Action Letter in Lieu of Registration; Conversion of Preferred
Stock. Notwithstanding anything else in this Agreement to the contrary, if the
Company shall have obtained from the Commission a "no-action" letter addressed
to the Company in which the Commission has indicated that it will take no
action if, without Registration under the Securities Act, any Holder disposes
of Registrable Securities covered by any request for Registration made under
this Agreement in the specific manner in which such Holder proposes to dispose
of the Registrable Securities included in such request (such as including,
without limitation, the inclusion of such Registrable Securities in an
underwriting initiated by either the Company or the Holders), the shares
included in such request shall not be eligible for Registration under this
Agreement; provided, however, that any Registrable Securities not so disposed
of shall be eligible for Registration in accordance with the terms of this
Agreement with respect to other proposed dispositions to which this Section
2.10 does not apply. The Registration rights of the Holders of the Convertible
Securities set forth in this Agreement are conditioned upon the conversion of
the shares of Convertible Securities with respect to which Registration is
sought into Common Stock on or before the effective date of the Registration
Statement. The Registration rights of the Holders of the Xxxxxx Warrant set
forth in this Agreement are conditioned upon the exercise of the Xxxxxx Warrant
in accordance with their terms and the conversion of the shares of Series E
Preferred Stock received by such Holders upon such exercise with respect to
which Registration is sought into Common Stock on or before the effective date
of the Registration Statement.
2.11 Sale of Convertible Securities to Underwriter. Notwithstanding
any provision in this Agreement to the contrary, in lieu of converting any
Convertible Securities prior to the effective date of any Registration
Statement filed pursuant to this Agreement, the holder of such Convertible
Securities may sell such Convertible Securities to the underwriters of the
offering being Registered upon the undertaking of such underwriters to convert
the Convertible Securities on or prior to the closing date of the offering. The
Company agrees to cause the Common Stock issuable on the conversion of the
Convertible Securities to be issued within such time period as
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14
will permit the underwriters to make and complete the distribution contemplated
by the underwriting.
2.12 Rule 144 Requirements. Immediately after the date on which a
Registration Statement filed by the Company under the Securities Act becomes
effective, the Company shall undertake to make publicly available, and
available to the Holders of Registrable Securities, such information as is
necessary to enable the holders of Registrable Securities to make sales of
Registrable Securities pursuant to Rule 144 of the Commission under the
Securities Act. The Company shall furnish to any holder of Registrable
Securities, upon request, a written statement executed by the Company as to the
steps it has taken to comply with the current public information requirements
of Rule 144.
2.13 Termination of Company Agreements. The Registration rights set
forth in Sections 2.1 and 2.2 shall terminate seven (7) years after the
effective date of the Company's Registration Statement filed in connection with
the Company's first Qualified Public Offering or, as to any Holder that is not
an "affiliate" of the Company (as such term is defined in Rule 144), at any
time following the effective date of the Company's first Qualified Public
Offering when such Holder is entitled to sell all of such Holder's Registrable
Securities (without any limitation on the volume of sales) pursuant to Rule
144(k) of the Commission under the Securities Act.
ARTICLE III
VOTING AGREEMENTS AND CERTAIN RIGHTS OF
HOLDERS OF SERIES E, SERIES F AND SERIES G PREFERRED STOCK
3.1 Election of Members of Board of Directors. Pursuant to the
Company's Certificate of Incorporation, Holders of Series E Preferred Stock and
Series F Preferred Stock, voting together as a separate single class, on the
basis of one vote for each share of Series E Preferred Stock and Series F
Preferred Stock then outstanding, have the right to elect six (6) directors out
of nine (9) of the Board, provided, however, if the Company has not consummated
a Qualified Public Offering on or before September 7, 2000, then (x) the number
of members of the Board shall be eleven (11); and (y) the Holders of (i) Series
E Preferred Stock and Series F Preferred Stock, voting together as a separate
single class, on the basis of one vote for each share of Series E Preferred
Stock and Series F Preferred Stock then outstanding, shall have the right to
elect six of the eleven directors, and (ii) Series G Preferred Stock, voting as
a separate single class, on the basis of one vote for each share of Series G
Preferred Stock then outstanding, shall have the right to elect one of the
eleven directors. Each Holder of Series E Preferred Stock and Series F
Preferred Stock voting together as a single class, agrees that, until such time
as a Qualified Public Offering, it shall vote to elect, as one of the directors
that Holders of Series E Preferred Stock and Series F Preferred Stock voting
together as a single class are entitled to elect, (a) the individual that
serves as Chief Executive Officer of the Company from time to time, (b) any
individual nominated for election to the Board of Directors of the Company by a
Significant Holder, (c) any individual nominated for election to the Board of
Directors of the Company by SCP (but only for so long as SCP and CIP Capital
L.P. and their affiliates continue to own Series E Preferred Stock with an
aggregate Stated Value of at least $3,000,000); (d) any individual nominated
for election to the
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15
Board of Directors of the Company by Xxxxx (but only for so long as Fostin
Capital Associates II and Xxxxx and their affiliates continue to own Series E
Preferred Stock with an aggregate Stated Value of at least $3,000,000); and (e)
any individual nominated for election to the Board of Directors of the Company
by Tandem PCS Investments, L.P. ("Tandem Designee") (but only for so long as
Tandem and its affiliates continue to own Series F Preferred Stock with an
aggregate Stated Value of at least $3,000,000). This Section 3.1 shall
terminate upon the consummation of a Qualified Public Offering.
3.2 Board Visitation Rights of Significant Holders. Until such time as
a Significant Holder chooses to nominate a member of the Board of Directors of
the Company as provided in Section 3.1, each Significant Holder shall have the
right, at its option exercised by written notice to the Company, to (a) require
the Company to give it reasonable advance written notice of all meetings of the
Board, (b) obtain on a confidential basis copies of all materials distributed
to members of the Board, and (c) have a representative of the Significant
Holder observe, but not participate in, meetings of the Company's Board.
3.3 Board Visitation Rights of Significant Investor. So long as the
Holders who are Affiliates of the Significant Investor hold at least 50%, in
the aggregate, of the Series G Preferred Stock issued by the Company to such
Holders on the date hereof, the Significant Investor shall have the right, at
its option exercised by written notice to the Company, to (a) require the
Company to give it reasonable advance written notice of all meetings of the
Board, (b) obtain on a confidential basis copies of all materials distributed
to members of the Board, and (c) have a representative appointed by it observe,
but not participate in, meetings of the Company's Board.
3.4 Other Voting Agreements. So long as there exists a Significant
Holder, Holders of Series E Preferred Stock shall not waive any right that may
be waived by, or vote in favor of any matter that requires the affirmative vote
of (i) sixty percent (60%) of the voting power of the then outstanding Series E
Preferred Stock, or (ii) sixty percent (60%) of the voting power of the then
outstanding Series E Preferred Stock, Series F Preferred Stock and Series G
Preferred Stock, voting together as a single class, unless such waiver or
affirmative vote is consented to in writing by each Significant Holder.
3.5 Agreement Binding on Transferees. In the event of any transfer of
shares of any Senior Preferred Stock or Registrable Securities, the transferee
shall become party to this Agreement, shall agree to perform all of the
obligations of the transferring party and shall execute, acknowledge and
deliver to the Company and each Significant Holder, if any, such instruments of
transfer, assignment and assumption of such other certificates,
representations, and documents and shall perform all other acts that the
Company may deem necessary or desirable, to confirm that the transferee has
accepted, assumed, and agreed to be subject to, all of the terms, obligations
and conditions of this Agreement. The Company shall refuse to record on its
stock transfer records any transfer of any Senior Preferred Stock or
Registrable Securities that does not comply with this Section 3.5.
3.6 Pre-Emptive Rights. Article IV.C.9 of the Company's Certificate of
Incorporation provides that the holder of the Xxxxxx Warrant shall have the
same pre-emptive rights as holders
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16
of Series E Preferred Stock. Each Holder of Series E Preferred Stock
acknowledges and agrees to the existence of such pre-emptive rights, which have
the effect of reducing the pre-emptive rights such Holders would otherwise have
prior to exercise of the Xxxxxx Warrant for Series E Preferred Stock.
3.7 Further Assurances. The Company and each party to this Agreement
shall take such steps as may be necessary, in the judgment of the Company or
any Significant Holder, to ensure that the rights intended to be conferred by
this Article III shall be enforceable and implemented as provided herein.
3.8 Legends. So long as this Agreement shall remain in effect, all
certificates representing outstanding shares of Series E Preferred Stock and
Series F Preferred Stock shall be endorsed with substantially the following
legend (such legend has previously been or is simultaneously with the execution
hereof being endorsed on the certificates representing the shares of Series E
and Series F Preferred Stock to be issued on the date hereof):
The shares represented by this certificate, and all rights
represented by such shares, are subject to, and restricted by, the
terms of an Agreement Among Series E and Series F Preferred
Stockholders and Senior Registration Rights Agreement (the
"Agreement") between the Company and certain of its stockholders,
as the same may be amended from time to time, a copy of which
Agreement is on file at the principal office of the Company and
will be provided to stockholders upon request and without charge.
The Agreement includes, among other things, certain voting
agreements among holders of the Series E and Series F Preferred
Stock. Any person that wishes to become the owner of this
certificate or the shares which it represents, or to obtain any
interest in such certificate or shares, shall agree to become
bound by the provisions by the Agreement.
So long as this Agreement shall remain in effect, all certificates
representing outstanding shares of Series G Preferred Stock shall be endorsed
with substantially the following legend (such legend has previously been or is
simultaneously with the execution hereof being endorsed on the certificates
representing the shares of Series G Preferred Stock to be issued on the date
hereof):
The shares represented by this certificate, and all rights
represented by such shares, are subject to, and restricted by, the
terms of a Second Amended and Restated Agreement Among Series E,
Series F and Series G Preferred Stockholders and Senior
Registration Rights Agreement (the "Agreement") between the
Company and certain of its stockholders, as the same may be
amended from time to time, a copy of which Agreement is on file at
the principal office of the Company and will be provided to
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17
stockholders upon request and without charge. The Agreement
includes, among other things, certain voting agreements among
holders of the Company's Series E Preferred Stock, the Series F
Preferred Stock and the Series G Preferred Stock. Any person that
wishes to become the owner of this certificate or the shares which
it represents, or to obtain any interest in such certificate or
shares, shall agree to become bound by the provisions by the
Agreement.
3.9 Purchase of Employee Shares. So long as the Holders who are
Affiliates of the Significant Investor hold at least 50%, in the aggregate, of
the Series G Preferred Stock issued by the Company to such Holders on the date
hereof, except for repurchases by the Company of the Company's equity
securities held by employees of the Company (collectively, "Employee Shares")
pursuant to (a) the Company's exercise of its rights of first refusal, or (b)
the termination for cause of an employee of the Company, the Company shall not
repurchase any Employee Shares for an aggregate purchase price in excess of
$100,000 in any calendar year without the prior written consent of the holders
of at least sixty percent (60%) of the Series G Preferred Stock outstanding
immediately prior to such repurchase.
ARTICLE IV
AGREEMENT CONVENTIONS
4.1 Independent Contractor. Each party hereto is an independent
contractor, and nothing contained in this Agreement shall be construed to be
inconsistent with this relationship or status. Nothing in this Agreement shall
be in any way construed to constitute any party as the agent, employee, or
representative of the other. As an independent contractor, each party has
relied on its own expertise or the expertise of its legal, financial, technical
of other advisors.
4.2 No Partnership or Joint Venture Intended. The parties expressly do
not intend hereby to form a partnership under any state partnership or limited
partnership act or a joint venture. The parties do not intend to be partners or
joint venturers with one another, or partners or joint venturers as to any
third party. No party owes a fiduciary duty to the others.
4.3 No Other Duties. The only duties and obligations of the parties are
as specifically set forth in this Agreement, and no other duties or obligations
shall be implied in fact, law or equity, or under any principle of fiduciary
obligation.
4.4 Reliance on Counsel and Other Advisors. Each party has consulted
such legal, financial, technical or other expert as it deems necessary or
desirable before entering into this Agreement. Each party represents and
warrants that it has read, knows, understands and agrees with the terms and
conditions of this Agreement.
4.5 Notices. All notices, requests, consents and other communications
required or permitted under this Agreement shall be in writing (including
telex, telecopy and telegraphic communication) and shall be (as elected by the
person giving such notice) hand delivered by messenger or courier service,
telecommunicated, or mailed (airmail if international) by registered
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or certified mail (postage prepaid), return receipt requested, addressed to the
parties as specified below:
If to the Company: AirNet Communications Corporation
000 Xxxxxx Xxxxx, Xxxxx 000
Xxxxxxxxx, XX 00000
Attention: President and CEO
Facsimile: (000) 000-0000
With a copy to: Xxxxxxx & Xxxxxx, LLP
000 Xxxxx Xxxx Xxx, Xxxxx 000
Xxxx Xxxxx, XX 00000
Attention: Xxxx X. Xxxx
Facsimile: (000) 000-0000
If to Xxxxxx: Xxxxxx Corporation
0000 X. XXXX Xxxxxxxxx
Xxxxxxxxx, XX 00000
Attention: Corporate Secretary
Facsimile: (000) 000-0000
If to the Holders: To their address in the stock
records of the Company.
The Company will provide such addresses to any Holder upon written request if
the request is for the purpose of sending notices to the Holders under this
Agreement, or to such other address as any party may designate by notice
complying with the terms of this Section 4.5. Each such notice shall be deemed
delivered: (a) on the date delivered if by personal delivery; (b) on the date
of transmission with confirmed answer back if by telex, telecopy or other
telegraphic communication; and (c) on the date upon which the return receipt is
signed or delivery is refused or the notice is designated by the postal
authorities as not deliverable, as the case may be, if mailed.
4.6 Governing Law. This Agreement shall in all respects be governed
by, and construed in accordance with, the laws (excluding conflict of laws
rules and principles) of the State of Delaware applicable to agreements made
and to be performed entirely within such State, including all matters of
construction, validity and performance.
4.7 Entire Agreement. This Agreement constitutes the entire agreement
of the parties relating to the subject matter hereof and supersedes all prior
contracts or agreements, whether oral or written. There are no representations,
agreements, arrangements or understandings, oral or written, between or among
the parties relating to the subject matter of this Agreement which are not
fully expressed in this Agreement.
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4.8 Severability. Should any provision of this Agreement or the
application thereof to any person or circumstance be held invalid or
unenforceable to any extent: (a) such provision shall be ineffective to the
extent, and only to the extent, of such unenforceability or prohibition and
shall be enforced to the greatest extent permitted by law; (b) such
unenforceability or prohibition in any jurisdiction shall not invalidate or
render unenforceable such provision as applied (i) to other persons or
circumstances or (ii) in any other jurisdiction; and (c) such unenforceability
or prohibition shall not affect or invalidate any other provision of this
Agreement.
4.9 Amendment. Neither this Agreement nor any of the terms hereof may
be terminated, amended, supplemented or modified orally, but only by an
instrument in writing. Except as otherwise expressly provided herein, this
Agreement may be amended, modified and its provisions may be waived only in a
writing by Holders who are then a party to this Agreement holding at least 75%
of the aggregate number of shares of Common Stock issued or issuable upon
conversion of any of the Convertible Securities (including any securities of
the Company deemed to be Registrable Securities as provided in Section 2.7 of
this Agreement), other than Common Stock sold pursuant to a Registration
Statement, provided that a copy of any such amendment shall be mailed to each
Holder who is then a party to this Agreement; provided further no amendment,
modification or waiver which materially adversely affects the rights of less
than all of the Holders shall be valid unless approved in writing by all
Holders who are then a party to this Agreement; provided further that no
amendment, modification or waiver which adversely affects the rights of
Significant Holders shall be valid unless approved in writing by all
Significant Holders who are then a party to this Agreement; provided further
that no amendment, modification or waiver which adversely affects the rights of
holders of Series F Preferred Stock or Series F Registrable Securities shall be
valid unless approved in writing by holders of sixty-six and two-thirds percent
(66-2/3%) of the Series F Registrable Securities voting as a separate single
class on the basis of one vote for each share of Series F Registrable
Securities then outstanding.
4.10 Effect of Waiver or Consent. No waiver or consent, express or
implied, by any person to or of any breach or default by any party in the
performance by such party of its obligations hereunder shall be deemed or
construed to be a consent or waiver to or of any other breach or default in the
performance by such party of the same or any other obligations of such party
hereunder. No single or partial exercise of any right or power, or any
abandonment or discontinuance of steps to enforce any right or power, shall
preclude any other or further exercise thereof or the exercise of any other
right or power. Failure on the part of a party to complain of any act of any
party or to declare any party in default, irrespective of how long such failure
continues, shall not constitute a waiver by such person of its rights hereunder
until the applicable statute of limitation period has run.
4.11 Rights and Remedies Cumulative. The rights and remedies provided
by this Agreement are cumulative, and the use of any one right or remedy by any
party shall not preclude or waive the right to use any or all other remedies.
Such rights and remedies are given in addition to any other rights the parties
may have under applicable Law or otherwise.
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4.12 Successors and Assigns. Each and all of the covenants, terms,
provisions, and agreements contained in this Agreement shall be binding upon,
and inure to the benefit of the parties hereto and their successors and
assigns.
4.13 Limitation on Rights of Others. Nothing in this Agreement,
whether expressed or implied, shall be construed to give any Person (other than
the parties hereto and their respective permitted successors and assigns and as
expressly provided herein) any legal or equitable right, remedy or claim under
or in respect of this Agreement or any covenants, conditions or provisions
contained herein, as a third party beneficiary or otherwise.
4.14 Facsimiles. For purposes of this Agreement, any copy, facsimile
telecommunication or other reliable reproduction of a writing, transmission or
signature may be substituted or used in lieu of the original writing,
transmission or signature for any and all purposes for which the original
writing, transmission or signature could be used, provided that such copy,
facsimile telecommunication or other reproduction shall be a complete
reproduction of the entire original writing, transmission or signature, as the
case may be.
4.15 Counterparts. This Agreement may be executed in any number of
counterparts with the same effect as if all signatory parties had signed the
same document. All counterparts shall be construed together and shall
constitute one and the same instrument. In the event that any stockholder who
acquires any shares of Senior Preferred Stock or Registrable Securities after
the date hereof shall be required and permitted to become a party to this
Agreement, such stockholder may do so by executing a counterpart signature page
to this Agreement and, with the acknowledgment of the Company on such
counterpart signature page, such stockholder shall be deemed a Holder under the
Agreement. The Company shall deliver written notice of the purchase of any
shares of Senior Preferred Stock or Registrable Securities after the date
hereof by a new Holder to the other Holders within thirty (30) days of the
execution of this Agreement by such new Holder by delivering a copy of the
executed and acknowledged counterpart and signature page to this Agreement,
reflecting ownership by each Holder who is then a party to this Agreement.
4.16 Effective Date. This Agreement will become effective only upon
the closing of the sale by the Company of shares of Series G Preferred Stock.
4.17 Headings, Etc. The words "hereof", "herein" and "hereunder" and
words of similar import when used in this Agreement shall refer to this
Agreement as a whole and not to any particular provision of this Agreement. All
references as to "Sections", "Articles", "Schedules" and "Exhibits" shall be to
Section, Articles, Schedules and Exhibits, respectively, of this Agreement
unless otherwise specifically provided.
4.18 Consents. By executing this Agreement each party hereto that is a
party to the Second Restated Agreement acknowledges and agrees that such
execution shall constitute such party's consent, and waiver of any objections,
to the terms and provisions of this Agreement as required by the Second
Restated Agreement, including, without limitation, Section 4.9 thereof.
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21
4.19 Restated Agreement. This Agreement amends and restates the
Restated Agreement in its entirety and effective as of the date hereof the
Restated Agreement shall be of no further force or effect.
[Remainder of page intentionally left blank.]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
and delivered by their duly authorized officers or agents as of the date first
above written.
AIRNET COMMUNICATIONS CORPORATION
By: /s/ R. XXX XXXXXXXX
-------------------
R. Xxx Xxxxxxxx
President and CEO
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SIGNATURE PAGE TO
SECOND AMENDED AND RESTATED AGREEMENT
AMONG SERIES E, SERIES F AND SERIES G PREFERRED STOCKHOLDERS AND
SENIOR REGISTRATION RIGHTS AGREEMENT
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
and delivered by their duly authorized officers or agents as of the date first
above written.
INVESTOR:
____________________________________
Print Name of Investor
By:_________________________________
Signature of Person Signing
Name:_______________________________
Print Name of Person Signing
Title:______________________________
Date:_______________________________
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