Pre-Effective Amendment to Registration Statement (General Form) — Form S-1
Filing Table of Contents
Document/Exhibit Description Pages Size
1: S-1/A Amendment to Form S-1 HTML 115K
2: EX-4.6 Investor Rights Agreement 14 77K
3: EX-9.1 Voting Agreement 10 44K
4: EX-10.10 Agreement 9 47K
5: EX-10.11 Amendment to Agreement 31 128K
6: EX-10.12 Agreement and Undertaking 2 14K
7: EX-10.25 Form of Subscription Agreement 45 169K
8: EX-10.26 Market Operation, Spectrum Lease and Sublicense 190 679K
Agreement
9: EX-10.29 Subscription Agreement 21 97K
10: EX-10.30 Master Supply Agreement 105 316K
11: EX-10.31 Side Agreement 17 77K
12: EX-10.39 Vendor Agreement 12± 50K
13: EX-10.40 Subscription Service Addendum to Vendor Agreement 39 100K
14: EX-10.41 Co-Marketing Agreement 22 86K
15: EX-10.42 Purchase and Sale Agreement 48 166K
16: EX-10.45 Bundled Wireless Broadband Services Agreement 32 83K
17: EX-10.46 Subscription Agreement 29 113K
18: EX-10.47 Side Agreement 3 21K
19: EX-10.48 Amended and Restated Limited Liability Company 58 207K
Agreement
20: EX-10.51 Common Stock Purchase Agreement 51 217K
21: EX-10.52 Mobile Wimax Network Collaboration Agreement 36 112K
22: EX-10.53 Stock Purchase Agreement 81 340K
23: EX-10.55 Wireless Broadband System Services Agreement 20 48K
24: EX-10.56 Wireless Broadband System Infrastructure Agreement 146 358K
25: EX-10.57 Wireless Broadband Cpe Supply Agreement 40 94K
26: EX-10.58 Side Letter Agreement 9 51K
27: EX-10.59 Master Royalty and Use Agreement 196 648K
28: EX-10.60 Master Royalty and Use Agreement 103 325K
29: EX-10.61 Membership Interest Purchase Agreement 51 181K
30: EX-10.62 Purchase Agreement 64 201K
31: EX-10.63 Educational Broadband Service Long Term De Facto 84 276K
Transfer Lease Agreement
32: EX-21.1 List of Subsidiaries 2± 13K
EXHIBIT 10.46
EXECUTION COPY
SUBSCRIPTION AGREEMENT
This Subscription Agreement (this "Agreement") is entered into as of the
30th day of June, 2006, by and between Motorola, Inc., a Delaware corporation
("Investor"), and Clearwire Corporation, a Delaware corporation ("Clearwire" or
the "Company"). The Company and Investor agree as follows:
1. SUBSCRIPTION FOR SHARES. Investor agrees to subscribe for and the
Company agrees to issue to Investor 50,000,000 shares of the Class A Common
Stock, par value $.0001 per share, of Clearwire (the "Purchased Shares"), on the
terms and conditions set forth in this Agreement.
2. SUBSCRIPTION PRICE. The purchase price for the Purchased Shares shall be
$6.00 per share for an aggregate subscription price of U.S. $300,000,000.00 (the
"Purchase Price").
3. PAYMENT OF PURCHASE PRICE. (a) Subject to the provisions of Section 3(b)
below, Investor agrees to pay the aggregate Purchase Price for the Purchased
Shares to Clearwire. The Purchase Price shall be paid in immediately available
funds by wire transfer to the Company in accordance with the wiring instructions
provided by the Company.
(b) At the Closing, Investor shall pay an amount equal to the lesser of (i)
the Purchase Price or (ii) that amount that is 30% of Cash on Hand (as defined
below) immediately following the Closing, but in no event less than $150,000,000
(such amount, the "Closing Date Payment"), and shall receive that number of
Purchased Shares at the Closing that is the same proportionate percentage as the
Closing Date Payment is to the Purchase Price. In the event that the Closing
Date Payment is less than the Purchase Price, and at any time thereafter the
Company receives additional cash from whatever source derived (a "Cash
Infusion"), then, upon not less than three (3) business days' prior written
notice from the Company, Investor shall pay to the Company an amount equal to
the lesser of (a) the sum of the Purchase Price less the Closing Date Payment
and any payments previously made in a Subsequent Closing or (b) the amount equal
to the amount of the Cash Infusion divided by 70% and then multiplied by 30%,
and shall receive in exchange therefor a number of the Purchased Shares equal to
the amount of such payment divided by $6.00 (each such payment, a "Subsequent
Closing"); provided, however, that Investor shall not be obligated to consummate
any Subsequent Closing if such Subsequent Closing would involve an amount less
than the smaller of (X) $50,000,000 and (Y) the total remaining balance of the
Purchase Price to be paid hereunder. Investor's obligation to pay any portion of
the Purchase Price at a Subsequent Closing shall be subject to satisfaction of
the applicable conditions set forth in Section 5 hereof. Notwithstanding
anything contained herein to the contrary, in no event shall Investor be
obligated to pay any amount in excess of the Purchase Price for the Purchased
Shares.
"Cash on Hand" shall mean, as of any date of determination, the aggregate
amount of cash and cash equivalents, short and long term investments, including
any amounts actually
1
NT
received by the Company from the Investor and the Concurrent Investor (as
defined herein), and excluding any and all restricted cash and investments, each
as set forth on the Company's most recent balance sheet prepared in accordance
with GAAP.
4. CLOSING DATE. Subject to the satisfaction or waiver of the conditions
set forth in Section 5 and Section 6 herein, the closing of Investor's purchase
of the Purchased Shares shall take place remotely via the exchange of documents
and signatures, at 10:00 a.m. (Pacific time), as soon as practicable, but in any
event within two (2) business days after the last of the conditions set forth in
Section 5 and Section 6 herein shall have been satisfied or waived, other than
those conditions that by their nature are to be satisfied at the Closing (but
subject to the fulfillment or waiver of those conditions at the Closing), or at
such other time and place as the Company and Investor mutually agree upon,
orally or in writing (which time and place are designated as the "Closing").
5. INVESTOR CLOSING CONDITIONS. The obligation of Investor to purchase the
Purchased Shares at the Closing, and, with respect to subsections (a), (j), (k),
(n) and (o) only, each Subsequent Closing, if any, is subject to the
fulfillment, to Investor's satisfaction, of each of the following conditions:
(a) the Company shall have delivered to Investor a stock certificate
representing the Purchased Shares, free and clear of all liens, registered in
Investor's name;
(b) the Company shall have delivered to Investor certificates of good
standing of Clearwire, in each case dated as of a date not more than five (5)
days prior to the Closing, issued by the Delaware Secretary of State;
(c) the Company shall have delivered to Investor a certificate,
executed by the Secretary of the Company, attaching thereto: (i) the Company's
Certificate of Incorporation and Bylaws in effect on the Closing, and (ii)
resolutions of the Board of Directors of the Company, in form and substance
reasonably satisfactory to Investor, authorizing the Transaction Agreements (as
defined below) and the transactions contemplated thereby. The Secretary's
Certificate shall also contain provisions relating to the incumbency of the
officers of the Company, including the certification of a specimen of their
respective signatures;
(d) the Company shall have delivered to Investor the joinder
agreement, attached as Exhibit A hereto (the "SA Joinder Agreement"), to that
certain Amended and Restated Stockholders Agreement, dated as of March 16, 2004,
between Clearwire and its stockholders (the "Stockholders Agreement"), executed
by Clearwire;
(e) the Company shall have delivered to Investor the Investor Rights
Agreement, attached as Exhibit B hereto (the "Investor Rights Agreement" and
together with this Agreement, the Stockholders Agreement, the SA Joinder
Agreement and the Investor Letter (as defined below), the "Equity Agreements"),
executed by Clearwire;
(f) the Company shall have delivered to Investor the Wireless
Broadband System Services Agreement between the Investor and the Company, the
Wireless Broadband System Infrastructure Agreement between the Investor and
Clearwire US LLC, and the Wireless Broadband CPE Supply Agreement between the
Investor and the Company, attached as Exhibit
2
C hereto (collectively, the "Commercial Agreements" and together with the Equity
Agreements, the "Transaction Agreements"):
(g) the Company shall have delivered to Investor a legal opinion of
Davis Wright Tremaine LLP in the form attached hereto as Exhibit D;
(h) the representations and warranties made by the Company in Section
8 of this Agreement shall be true and correct in all material respects at and as
of the Closing as if made at and as of such time (except that the accuracy of
representations and warranties that by their terms speak as of the date of this
Agreement or some other date shall be determined as of such date). For purposes
of determining whether the condition in this Section 5(h) has been satisfied
only, all such representations and warranties (x) shall be read without regard
to any materiality or material adverse effect qualifiers contained therein and
(y) after taking clause (x) into account, shall be deemed to be true, correct
and complete unless breaches or inaccuracies thereof, individually or in the
aggregate, result or would reasonably be expected to result in a material
adverse effect on the business, condition, affairs, operations, properties, or
assets of the Company. All covenants, agreements and conditions contained in
this Agreement to be performed or complied with by the Company prior to the
Closing shall have been performed or complied with, and the Company shall have
obtained any approvals, consents and qualifications necessary to perform its
obligations hereunder;
(i) the Company shall have delivered to Investor at the Closing a
certificate signed on its behalf by an executive officer of the Company
certifying that the conditions specified in Section 5(h) herein have been
fulfilled;
(j) at the Closing, the purchase of the Purchased Shares by Investor
shall be legally permitted by all laws and regulations to which Investor and the
Company are subject;
(k) as of the Closing, all authorizations, approvals or permits of, or
filings with any governmental authority, including state securities or "Blue
Sky" offices, that are required by law in connection with the lawful sale and
issuance of the Purchased Shares to be made prior to the closing shall have been
duly obtained by the Company, and shall be effective as of the Closing;
(l) the Company shall have delivered to Investor a letter in the form
attached hereto as Exhibit E, executed by the Company (the "Investor Letter");
(m) the Acquisition Agreement between Investor and the Company
attached hereto as Exhibit F for the purchase of all of the outstanding shares
of NextNet Wireless, Inc. (the "Acquisition Agreement") shall have been executed
and delivered by each party thereto and the transactions contemplated by the
Acquisition Agreement shall have been consummated;
(n) the applicable waiting period under the Hart-Scott-Rodino
Antitrust Improvements Act of 1976, as amended, and the rules and regulations
thereunder (the "HSR Act"), shall have terminated; and
(o) for each Subsequent Closing only, the Closing shall have occurred.
3
6. CLEARWIRE CLOSING CONDITIONS. The obligation of Clearwire to deliver the
Purchased Shares to Investor at the Closing, and the Subsequent Closing, if any,
is subject to the fulfillment, to the Company's satisfaction, of each of the
following conditions:
(a) Investor shall have delivered to Clearwire the Purchase Price in
accordance with Section 3 herein;
(b) Investor shall have delivered to Clearwire the Transaction
Agreements to which Investor is a party, each executed by Investor;
(c) the representations and warranties made by Investor in Section 7
of this Agreement shall be true and correct in all material respects at and as
of the Closing as if made at and as of such time (except that the accuracy of
representations and warranties that by their terms speak as of the date of this
Agreement or some other date shall be determined as of such date). For purposes
of determining whether the condition in this Section 6(c) has been satisfied
only, all such representations and warranties (x) shall be read without regard
to any materiality or material adverse effect qualifiers contained therein and
(y) after taking clause (x) into account, shall be deemed to be true, correct
and complete unless breaches or inaccuracies thereof, individually or in the
aggregate, result or would reasonably be expected to result in a material
adverse effect on the ability of the Investor to consummate the transactions
hereunder. All covenants, agreements and conditions contained in this Agreement
to be performed or complied with by Investor prior to the Closing shall have
been performed or complied with, and Investor shall have obtained any approvals,
consents and qualifications necessary to perform its obligations hereunder;
(d) Investor shall have delivered to the Company at the Closing a
certificate signed on its behalf by an executive officer of Investor certifying
that the conditions specified in Section 6(c) herein have been fulfilled;
(e) the Acquisition Agreement shall have been executed and delivered
by each party thereto and the transactions contemplated by such Acquisition
Agreement shall have been consummated;
(f) no litigation, arbitration, action, suit, proceeding, or
investigation (whether conducted by or before any judicial or regulatory body,
arbitrator, or other person) (collectively, "Litigation") questions the validity
of this Agreement or the other Transaction Agreements or the right of Clearwire
to enter into this Agreement or the other Transaction Agreements or to
consummate the transactions contemplated hereby or thereby; and
(g) the applicable waiting period under the HSR Act shall have
terminated.
7. REPRESENTATIONS AND WARRANTIES OF INVESTOR. Investor represents and
warrants to the Company that the following statements are true and correct on
the date of this Agreement:
(a) Investor is an "accredited investor" as that term is defined in
Rule 501 of Regulation D promulgated under the Securities Act of 1933, as
amended (the "Securities Act")
4
(b) The Purchased Shares subscribed for (the "Securities") are being
acquired by Investor for investment purposes only, for Investor's own account
and not with the view to any resale or distribution thereof, and Investor is not
participating, directly or indirectly, in an underwriting of such Securities,
and will not take, or cause to be taken, any action that would cause Investor to
be deemed an "underwriter" of such Securities as defined in Section 2(11) of the
Securities Act.
(c) Investor acknowledges that Investor has been offered an
opportunity to ask questions of, and receive answers from, Clearwire concerning
the Company and Investor's proposed purchase of the Securities, and that, to
Investor's knowledge, the Company has fully complied with any request for such
information.
(d) Investor has such knowledge and experience in financial and
business matters as to be capable of evaluating the merits and risks of an
investment in the Securities, is able to bear such risks, and has obtained, in
Investor's judgment, sufficient information from the Company to evaluate the
merits and risks of an investment in the Securities. Investor has evaluated the
risks of investing in the Company and has determined that the Securities are a
suitable investment for Investor.
(e) Investor has full power and authority to enter into this Agreement
and to perform its obligations hereunder.
(f) To Investor's knowledge, neither the Company nor any person acting
on the Company's behalf has offered, offered to sell, offered for sale or sold
the Purchased Shares to Investor by means of any form of general solicitation or
general advertising.
(g) The execution, delivery and performance by Investor of this
Agreement and the other Transaction Agreements are within Investor's powers,
have been duly authorized, will not constitute or result in a breach or default
under or conflict with any law, judgment, order, ruling or regulation of any
court or other tribunal or of any governmental commission or agency, or any
agreement or other undertaking, to which Investor is a party or by which
Investor is bound, and will not violate any provisions of the incorporation
papers, bylaws, or stockholders agreement, as may be applicable, of Investor.
The signature of Investor on the Transaction Agreements to which Investor is, or
will be, at the time of execution, be, genuine, and the Transaction Agreements
to which Investor is, or will be a party, will when executed by Investor,
constitute legal, valid and binding obligations of Investor, enforceable in
accordance with their respective terms.
(h) Investor is not relying on the Company with respect to tax and
other investment advice in connection with its decision to purchase the
Purchased Shares. Investor acknowledges that Investor has been advised by the
Company to consult with its tax or financial consultants prior to entering into
this Agreement.
None of the representations and warranties contained in this Section
7, nor any other due diligence investigation conducted by Investor or on its
behalf shall in any way affect the right of Investor to rely fully on the
representations and warranties of the Company in this Agreement.
5
8. REPRESENTATIONS AND WARRANTIES OF CLEARWIRE. Clearwire represents and
warrants to Investor that, except as set forth on the Schedules attached to this
Agreement, each of which shall be deemed to be an exception to or exclusion from
only the particular representation and warranty against which it is listed
(unless it is readily apparent from a reading of the disclosure that such
disclosure is applicable to other representations and warranties), whether or
not the listed representation and warranty includes a reference to such
Schedule, and which exceptions (and all other disclosures) set forth in the
Schedules shall be deemed to be representations and warranties of Clearwire, the
following statements are true and correct on the date of this Agreement. Any
reference to the knowledge of any person shall mean the actual knowledge,
information and belief of such person after making reasonable inquiry of such
person's co-Chief Executive Officers, co-Presidents, Chief Operating Officer,
Chief Financial Officer. For each of these executives, reasonable inquiry shall
mean checking with their respective direct reports and other persons whom, by
the nature of the normal duties of their position, would reasonably be expected
to know. In addition, for purposes of these representations and warranties, the
term "the Company" shall include any entity in which Clearwire owns, directly or
indirectly, more than 50% of the outstanding equity interests and which has
assets of $10,000,000 or more, including, without limitation, the following:
Clearwire International LLC, Clearwire US, LLC, Fixed Wireless Holdings, LLC,
and Clearwire Spectrum Holdings LLC (the "Subsidiaries"), but shall specifically
exclude in all instances NextNet Wireless, Inc. The term "Clearwire" shall mean
Clearwire Corporation (excluding its Subsidiaries).
(a) The execution, delivery and performance by Clearwire of this
Agreement, the other Transaction Agreements to which it is a party, are within
Clearwire's powers, have been duly authorized, will not, as applicable, give
rise to any right of termination, cancellation or acceleration, or require any
consent or approval under, or constitute or result in a breach or default of, or
conflict with any law, judgment, order, ruling or regulation of any court or
other tribunal or any governmental commission or agency, or any agreement or
other undertaking to which Clearwire is a party or by which Clearwire is bound,
will not violate or result in a breach of any provision of, constitute a default
under, accelerate or terminate any performance required by, or require a consent
or waiver under, any provisions of the Certificate of Incorporation, Bylaws, or
Stockholders Agreement of Clearwire, and will not result in the creation of any
lien, charge, claim or encumbrance on the Company's assets or property. The
signature of Clearwire and Clearwire US LLC, as applicable, on the Transaction
Agreements is, or will, at the time of execution be, genuine, and the
Transaction Agreements constitute legal, valid and binding obligations of
Clearwire and Clearwire US LLC, as applicable, enforceable in accordance with
their respective terms. The Company is not in violation of any term of its (i)
Certificate of Incorporation or Bylaws or other organizational document or (ii)
of any law, statute, regulation, rule, ordinance, consent decree, settlement
agreement or governmental requirement, except, in the case of clause (ii), to
the extent that any such violation or non-compliance would not, individually or
in the aggregate, have a material adverse effect on Clearwire.
(b) The Company is duly incorporated or organized, as applicable, and
validly existing under the laws of the jurisdiction of its incorporation or
formation, as applicable, and is in good standing under such laws. The Company
is duly qualified to transact business and is in good standing in each
jurisdiction in which the failure to so qualify would have a material adverse
effect on the Company. The Company has full power and authority:
6
(i) to own its properties and assets;
(ii) to carry on its business as presently conducted; and
(iii) to enter into the Transaction Agreements and to perform its
obligations thereunder, including the issuance, sale and
delivery of the Purchased Shares
(c) Copies of all Board of Directors and stockholder meeting minutes
and consent actions of Clearwire have been made available to Investor. These
copies are true and complete copies of all resolutions evidencing actions taken
by the Board of Directors and stockholders of Clearwire since its date of
incorporation. The stock ledger of Clearwire is true and complete and reflects
all issuances, transfers, repurchases and cancellations of shares of Clearwire's
capital stock. Clearwire has furnished to Investor true and complete copies of
its Certificate of Incorporation and Bylaws, each as amended as of the date
hereof.
(d) Clearwire does not own or control, directly or indirectly, any
Subsidiaries other than those listed in Schedule 8(d) attached hereto, and the
shares of the capital stock or membership interests, as applicable, of the
Subsidiaries owned by Clearwire (which are reflected on Schedule 8(d)) are duly
authorized, validly issued, fully paid, and non-assessable, and free and clear
of all liens, charges, claims and encumbrances imposed by or through such
Subsidiaries, except as otherwise provided in Schedule 8(d). All of the
outstanding shares of the capital stock or membership interests, as applicable,
of the Subsidiaries, were offered, issued and sold in compliance in all material
respects with all applicable federal and state securities laws.
(e) The authorized capital stock of Clearwire and the shares of
capital stock of Clearwire issued and outstanding as of the date of this
Agreement are as set forth on Schedule 8(e) attached hereto. Upon the filing of
the Company's Third Amended and Restated Certificate of Incorporation, the form
of which is attached hereto as Exhibit G (the "Restated Charter"), the
authorized capital stock of Clearwire will be as set forth in the Restated
Charter. All of the outstanding shares of the capital stock of Clearwire are
duly authorized, validly issued, fully paid, and non-assessable, and free and
clear of all liens, charges, claims and encumbrances imposed by or through
Clearwire. The Purchased Shares, when issued, sold and delivered in accordance
with the terms and for the consideration set forth in this Agreement, will be
duly authorized, validly issued, fully paid, and non-assessable, and free and
clear of all liens, charges, claims and encumbrances imposed by or through
Clearwire. Additionally, the Purchased Shares are free of restrictions on
transfer other than restrictions on transfer under this Agreement and the other
Equity Agreements and under applicable state and federal securities laws. The
outstanding securities of Clearwire are owned by the stockholders, optionholders
and securityholders specified in Schedule 8(e) attached hereto in the numbers
specified in Schedule 8(e) attached hereto.
(f) Other than as disclosed in Schedule 8(f) attached hereto, the
Company does not have, is not bound by, and has no obligation to grant or enter
into, any outstanding subscriptions, options, warrants, rights (including
without limitation conversion or pre-emptive rights), calls, commitments, or
agreements of any character calling for it to issue, deliver, or sell, or cause
to be issued, delivered, or sold, any shares or any other equity securities or
equity
7
securities convertible into, exchangeable for, or representing the right to
subscribe for, purchase, or otherwise acquire any shares or any other equity
securities in the capital of the Company. Other than as set forth in Schedule
8(f) attached hereto, the issuance and sale of the Purchased Shares will not
result in the issuance of any additional shares of capital stock of Clearwire or
the triggering of any other anti-dilution or similar rights contained in any
options, warrants, debentures or other securities agreements or commitments of
Clearwire. Other than the Stockholders Agreement and as disclosed in Schedule
8(f) attached hereto, the Company is not a party or subject to any agreement or
understanding, and, to the Company's knowledge, there is no agreement or
understanding between any persons and/or entities, which affects or relates to
the voting or giving of written consents with respect to any security or by a
director of the Company.
(g) Other than as disclosed in Schedule 8(g) attached hereto, the
Company:
(i) has no outstanding obligations, contractual or otherwise, to
repurchase, redeem, or otherwise acquire any shares or other
equity securities in the capital of the Company; and
(ii) is not a party to or bound by any agreement or instrument
under which any person has the right to require it to
effect, or to include any securities held by such person in,
any registration under any securities legislation or to
distribute any such securities to the public.
(h) All of the outstanding shares of capital stock of Clearwire were
offered, issued, and sold in compliance in all material respects with all
applicable federal and state securities laws. Assuming the accuracy of the
representations of Investor in Section 7 herein, upon the closing of the
transactions contemplated hereby, the Purchased Shares will have been offered,
issued and sold in compliance with all applicable federal, state and provincial
securities laws. Neither Clearwire nor any person or entity acting on its behalf
has taken or will take any action that would subject the offering, sale or
issuance of the Purchased Shares to the registration requirements of the
Securities Act.
(i) Except (i) as disclosed in Schedule 8(i) attached hereto, and (ii)
for filings required under the HSR Act, no consent, approval, authorization,
declaration, filing, or registration with any governmental authority, regulatory
authority or other party is required to be made or obtained by Clearwire in
connection with:
(i) the execution and delivery of any of the Transaction
Agreements; or
(ii) the performance by the Company of its obligations under the
Transaction Agreements.
(j) Except as otherwise set forth on Schedule 8(j) attached hereto,
the Company owns its property and assets, including, without limitation, the
property and assets reflected in the audited balance sheet of Clearwire dated
December 31, 2005, free and clear of all mortgages, liens, licenses, security
interests, charges, claims and other encumbrances, except
8
such encumbrances and liens that arise in the ordinary course of business and do
not materially impair the Company's ownership or use of such property or assets.
With respect to the property and assets it leases (including without limitation
BRS and EBS spectrum), the Company is in compliance with such leases and, to its
knowledge, holds a valid leasehold interest free of any liens, charges, claims
or encumbrances other than those of the lessors of such property or assets,
except with respect to leases which the termination of or loss of rights under
would not be material to the Company.
(k) To the Company's knowledge, the Company has timely filed all
returns, declarations, reports, and information statements ("Returns") required
to be filed in respect of any and all material Taxes (as defined below). Such
Returns are true, correct, and complete in all material respects. The Company
has paid all material Taxes due and payable on a timely basis, whether or not
shown on such Returns, except those material Taxes contested by the Company in
good faith that are listed in Schedule 8(k) attached hereto. The provision for
Taxes of the Company as shown in the Financial Statements (as defined below) is
adequate for material Taxes due or accrued as of the date of the Financial
Statements. The Company has not elected pursuant to section 1362(a) of the
Internal Revenue Code of 1986, as amended (the "Code"), to be treated as an S
corporation, and the Company has not made any other elections pursuant to the
Code (other than elections that relate solely to methods of accounting,
depreciation, or amortization) that would have a material effect on the Company,
its financial condition, its business as presently conducted or as proposed to
be conducted, or any of its properties or material assets. None of the Company's
Returns has ever been audited by any applicable governmental authority, and
there is no current audit, action, suit, proceeding, or deficiency proposed or
assessed or, to the Company's knowledge, currently threatened or contemplated
against the Company with respect to material Taxes. The Company has not executed
any waiver of any statute of limitations on the assessment or collection of any
material Taxes. Since the date of the Financial Statements, the Company has not
incurred any material Taxes other than in the ordinary course of business, and
the Company has made adequate provisions on its books of account for all
material Taxes with respect to its business, properties and operations for such
period. There are no liens for material Taxes upon any of the assets of the
Company, except liens for material Taxes not yet due and payable. The Company
has withheld and collected all material Taxes required to be withheld or
collected under the Code or other applicable law, and has paid such material
Taxes to the proper governmental authority, all on a timely basis. For purposes
of this Agreement, the term "Taxes" means all charges, fees, levies, or other
assessments, including, without limitation, all net income, gross income, gross
receipts, sales, use, ad valorem, transfer, franchise, profits, license,
withholding, payroll, employment, social security, unemployment, excise,
estimated, severance, stamp, occupation, property, or other taxes, together with
all interest and penalties on such taxes.
(l) Except as disclosed in Schedule 8(l) attached hereto, no
Litigation is pending or, to the knowledge of the Company, currently threatened
or contemplated, against the Company. None of such Litigation would, if
determined adversely, reasonably be expected to have a material adverse effect
on the business, condition, affairs, operations, properties, or assets of the
Company. The Company is not a party or subject to the provisions of any order,
writ, injunction, judgment or decree of any court or government agency or
instrumentality and no such order, writ, injunction, judgment or decree
questions the validity of this Agreement or the other Transaction Agreements or
the right of Clearwire to enter into this Agreement or the other
9
Transaction Agreements or to consummate the transactions contemplated hereby or
thereby. There is no action, suit, proceeding or investigation by the Company
currently pending or that the Company currently intends to initiate.
(m) Except as set forth on Schedule 8(m) attached hereto, there are no
agreements, understandings or proposed actions between the Company and any of
its officers, directors, stockholders, affiliates, or any affiliate thereof.
Except as set forth on Schedule 8(m) attached hereto, there are no binding
agreements, instruments or contracts to which the Company is a party or by which
it is bound that may involve (i) obligations (contingent or otherwise) of, or
payments to the Company in excess of, $1,000,000, (ii) the acquisition, lease,
sublease, license, transfer or assignment of BRS or EBS spectrum, (iii) the
license of any patent, copyright, trade secret or other proprietary right to or
from the Company, other than standard end-user object code license agreements,
or (iv) provisions that in the aggregate materially restrict or affect the
development, manufacture or distribution of the Company's products or services.
Except as set forth on Schedule 8(m) attached hereto, the Company has not (W)
declared or paid any dividends, or authorized or made any distribution upon or
with respect to, or redeemed or repurchased, any class or series of its capital
stock, (X) incurred any indebtedness for money borrowed or any other liabilities
individually in excess of $1,000,000 or, in the case of indebtedness and/or
liabilities individually less than $1,000,000, in excess of $3,000,000 in the
aggregate, (Y) made any loans or advances to any person, other than ordinary
advances for travel or other out-of-pocket expenses, or (Z) sold, exchanged or
otherwise disposed of any of its material assets or rights, other than the sale
of its inventory in the ordinary course of business. For the purposes of this
Section 8(m), all indebtedness, liabilities, binding agreements, instruments and
contracts involving the same person or entity (including persons or entities the
Company has reason to believe are affiliated therewith) shall be aggregated for
the purpose of meeting the individual minimum dollar amounts of this Section
8(m). Each agreement, instrument, contract, judgment, order, writ and decree set
forth on Schedule 8(m) attached hereto to which the Company is a party is a
valid, binding and enforceable obligation of the Company, and to the knowledge
of the Company, of the other party or parties thereto, and is in full force and
effect. To the knowledge of the Company, each agreement, instrument, contract,
judgment, order, writ and decree set forth on Schedule 8(m) attached hereto to
which each of the Subsidiaries is a party is a valid, binding and enforceable
obligation of such Subsidiary and of the other party or parties thereto, and is
in full force and effect. Neither the Company, nor to the knowledge of the
Company, any other party thereto, is, or is considered by any other party
thereto to be, in breach of or non-compliance with any term of any agreement,
instrument, contract, judgment, order, writ or decree set forth on Schedule 8(m)
attached hereto (nor, to the knowledge of the Company, is there any basis for
any of the foregoing) that could result in the termination of such agreement,
instrument or contract. The Company has not received any notice of cancellation
or non-renewal of any agreement, instrument or contract set forth on Schedule
8(m) attached hereto.
(n) Except as disclosed in Schedule 8(n) attached hereto, no employee,
officer, director or stockholder of the Company or member of his or her
immediate family or, in each such case, any affiliate thereof, is indebted to
the Company, nor is the Company indebted (or committed to make loans or extend
or guarantee credit) to any of them, other than in connection with expenses or
advances of expenses incurred in the ordinary course of business or employee
relocation expenses.
10
(o) None of this Agreement (including and as qualified by all exhibits
and schedules hereto), the other Equity Agreements, or any other written
statements or certificates made directly by, or, to the Company's knowledge, on
behalf of, the Company in connection herewith or therewith contains any untrue
statement of a material fact or omits to state a material fact necessary to make
the statements herein or therein not misleading in light of the circumstances
under which they were made.
(p) To the knowledge of the Company, the Company has sufficient title
and ownership of all patents, patent applications, trademarks, trademark
applications, service marks, service mark applications, trade names, trade name
applications, copyrights, copyright applications, trade secrets, information,
proprietary rights and processes necessary for its business as now conducted,
without any conflict with or infringement of the rights of others. To the
knowledge of the Company, the Company is not in violation of, or by conducting
its business as presently or proposed to be conducted, would violate, any
technology licenses to which the Company is a party to, including without
limitation, any software licenses or open source licenses. Schedule 8(p)
attached hereto contains a complete list of all patents, pending patent
applications, trademarks and pending trademark applications of the Company.
Except as set forth on Schedule 8(p) attached hereto, the Company owns all of
such patents, pending patent applications, trademarks and pending trademark
applications free and clear of all mortgages, liens, licenses, charges, claims,
security interests and other encumbrances. To the knowledge of the Company, the
Company is not in violation of or, by conducting its business as presently or
proposed to be conducted, would violate any of the patents, trademarks, service
marks, trade names, copyrights or trade secrets or other proprietary rights of
any other person or entity. Except as set forth in Schedule 8(p), to the
knowledge of the Company, no person or entity is violating any of the patents,
trademarks, service marks, trade names, copyrights, trade secrets or other
proprietary rights of the Company except to the extent that such violation would
not have a material adverse effect on the Company. The Company has taken all
steps that it has determined to be reasonable and necessary to protect its
patents, trademarks, service marks, trade names, copyrights (and, in each case,
all applications related thereto), trade secrets and other proprietary rights.
(q) To the knowledge of the Company, the wireless broadband services
offered by the Company have not experienced any material (i) failures related to
the continuous provision of service, (ii) breaches of security or (iii)
instances of hacking. Further, the Company has no knowledge of any (a) likely
failures related to the continuous provision of service, (b) likely source of
security breach, or (c) likely source of vulnerability for hacking.
(r) The Company has delivered to Investor its audited financial
statements (balance sheet and income statement, statement of shareholders'
equity and statement of cash flows) as of December 31, 2003, December 31, 2004
and December 31, 2005 for the fiscal years then ended and unaudited financial
statements (balance sheet and income statement) as of March 31, 2006 for the
three months then ended (the "Financial Statements"). The Financial Statements
(i) are in accordance with the books and records of the Company (which are true
and complete in all material respects), and (ii) have been prepared in
accordance with generally accepted accounting principles applied on a consistent
basis throughout the periods indicated, except that the unaudited Financial
Statements do not contain all footnotes and other disclosures required by
generally accepted accounting principles. The Financial Statements fairly
present in all material
11
respects the financial condition and operating results of the Company as of the
dates, and for the periods, indicated therein, subject to normal audit
adjustments with respect to the March 31 2006 Financial Statements. Except as
set forth in the Financial Statements or on Schedules 8(s) or 8(u), the Company
has no material liabilities, contingent or otherwise, other than (i) liabilities
incurred in the ordinary course of business subsequent to December 31, 2005, and
(ii) obligations under contracts and commitments incurred in the ordinary course
of business and not required under generally accepted accounting principles to
be reflected in the Financial Statements, which, in both cases, individually or
in the aggregate, are not material to the financial condition or operating
results of the Company.
(s) Schedule 8(s) attached hereto identifies all material outstanding
loans, debts, notes, mortgages, indentures, security agreements, commitments and
other obligations of the Company individually in excess of $1,000,000 or, in the
case of such obligations individually less than $1,000,000, in excess of in the
aggregate $2,000,000 (collectively, the "Obligations"). To the Company's
knowledge, except as disclosed in Schedule 8(s) attached hereto, the Company is
not in default under (and has not received any notice that it has breached or
committed any material default under) any of the Obligations, and no event or
condition has occurred which, with the lapse of time or the giving of notice, or
both, would constitute such a default.
(t) To the knowledge of the Company, the Company has all franchises,
permits, licenses, and any similar authority necessary for the conduct of its
business as now being conducted by it, all of such franchises, permits, licenses
and any similar authority is valid and in full force and effect, and the Company
believes it can obtain, without undue burden or expense, any similar authority
for the conduct of its business as planned to be conducted. To the knowledge of
the Company, the Company is not in default in any respect under any of such
franchises, permits, licenses or other similar authority.
(u) Except as set forth on Schedule 8(u) attached hereto, since
December 31, 2005, there has not been:
(i) any material change in the assets, liabilities, financial
condition or operating results of the Company from that
reflected in the Financial Statements;
(ii) any material damage, destruction or loss, whether or not
covered by insurance;
(iii) any waiver, compromise or default by the Company of a
valuable right or of a material debt or obligation owed to
it;
(iv) any satisfaction or discharge of any lien, charge, claim or
encumbrance or payment of any obligation by the Company,
except in the ordinary course of business and that is not
material to the assets, properties, financial condition,
operating results or business of the Company;
12
(v) any transfer of or granting of any security interest in or
any exclusive license with respect to any material asset of
the Company; or
(vi) any material agreement or commitment by the Company to do
any of the things described in this Section 8(u).
(v) To the Company's knowledge, the Company is not in violation of any
applicable statute, law or regulation relating to the environment or
occupational health and safety, and no material expenditures are or will be
required in order to comply with any such existing statute, law or regulation.
During the period that the Company has owned, licensed or leased its properties
and facilities, (a) there have been no disposals, releases or threatened
releases of Hazardous Materials (as defined below) from such properties or
facilities, (b) neither the Company nor, to the Company's knowledge, any third
party, has used, generated, manufactured or stored on, under or about such
properties or facilities or transported to or from such properties or facilities
any Hazardous Materials. The Company has no knowledge of any presence, disposals
on, or releases or threatened releases of Hazardous Materials from, or under any
of such properties or facilities, which may have occurred prior to the Company
having taken possession of any of such properties or facilities. For the
purposes of this Section 8(v), the terms "disposal," "release," and "threatened
release" shall have the definitions assigned thereto by the Comprehensive
Environmental Response, Compensation and Liability Act of 1980. 42 U.S.C.
Section 9601 et seq., as amended ("CERCLA"). For the purposes of this Section
8(v), "Hazardous Materials" shall mean any hazardous or toxic substance,
material or waste which is regulated under, or defined as a "hazardous
substance," "pollutant," "contaminant," "toxic chemical," "hazardous material,"
"toxic substance," or "hazardous chemical" under (i) CERCLA; (ii) the Emergency
Planning and Community Right-to-Know Act, 42 U.S.C. Section 11001 et seq.: (iii)
the Hazardous Materials Transportation Act, 49 U.S.C. Section 5101, et seq.;
(iv)the Toxic Substances Control Act, 15 U.S.C. Section 2601 et seq.; (v) the
Occupational Safety and Health Act of 1970, 29 U.S.C. Section 651 et seq.; (vi)
regulations promulgated under any of the above statutes; or (vii) any applicable
state or local statute, ordinance, rule, or regulation that has a scope or
purpose similar to those statutes identified above.
(w) Except as disclosed in Schedule 8(w) attached hereto and for
rights granted under the Investor Rights Agreement, the Company has not granted
or agreed to grant any registration rights, including without limitation any
piggyback or demand rights, to any person or entity.
(x) Except as set forth in Schedule 8(x) attached hereto, the Company
is not bound by or subject to (and none of its assets or properties is bound by
or subject to) any written or oral, express or implied, contract, commitment or
arrangement with any labor union, and no labor union has requested or, to the
Company's knowledge, has sought to represent any of the employees,
representatives or agents of the Company. There is no strike or other labor
dispute involving the Company pending, or to the Company's knowledge,
threatened, nor is the Company aware of any labor organization activity
involving its employees. To the Company's knowledge, the Company has complied in
all material respects with all applicable state and federal equal employment
opportunity and other laws related to employment.
13
(y) Except as disclosed in Schedule 8(y) attached hereto, the Company
is not party to or bound by any currently effective employment or consultancy
contracts involving payments by the Company in excess of $350,000 per annum,
excluding discretionary bonuses, deferred compensation agreements, bonus plans,
incentive plans, profit sharing plans, retirement agreements or plans, pension
plans or other employee compensation arrangements. Except as disclosed in
Schedule 8(y) attached hereto, and subject to general principles related to
wrongful termination of employees, the employment of each officer and employee
of the Company is terminable at the will of the Company. None of the officers or
key employee of the Company listed on Schedule 8(y) has given oral or written
notice of his or her termination of employment with the Company.
(z) Except as disclosed in Schedule 8(z) attached hereto, each current
officer, employee and consultant of the Company and, to the Company's knowledge,
each former officer, employee and consultant that contributed to the
intellectual property currently being used by the Company has executed in the
Company's favor a standard agreement regarding confidentiality and proprietary
information used by the Company and assignment of intellectual property rights
in favour of the Company. To the Company's knowledge, none of its current or
former employees, officers and consultants is in violation thereof. No such
person has excluded works or intellectual property rights made prior to his or
her employment or other contractual relationship with the Company from his or
her assignment of inventions pursuant to such agreement. Subject to any
limitations on such vesting imposed by applicable law, full title and ownership
of all inventions and proprietary rights, processes or methods developed or
invented by any and all employees and consultants during the period of their
employment and/or consultancy and resulting directly or indirectly from their
work for the Company vest in the Company pursuant to each such agreement. The
Company does not believe it is or will be necessary to utilize any inventions of
any of its employees (or people it currently intends to hire) made prior to or
outside the scope of their employment by the Company.
(aa) The Company holds the Federal Communications Commission ("FCC")
licenses, permits and authorizations set forth on Schedule 8(aa) attached hereto
(the "FCC Authorizations").
(bb) To the Company's knowledge, except as set forth on Schedule
8(bb), the FCC Authorizations are in full force and effect and have not been
revoked, suspended, cancelled, rescinded or terminated and have not expired,
except where renewal applications are currently pending. To the Company's
knowledge, there is not pending or threatened any action by or before the FCC to
revoke, suspend, cancel, rescind or modify any of the FCC Authorizations (other
than proceedings to amend FCC rules of general applicability), and there is not
now issued or outstanding or pending or threatened, by or before the FCC, any
order to show cause, notice of violation, notice of apparent liability, or
notice of forfeiture or complaint against the Company or any of its subsidiaries
or any wireless broadband system operated by Clearwire. Neither the Company nor
any of its subsidiaries is aware of any facts and has received no notice or
communication, formal or informal, indicating that the FCC is considering
revoking, suspending, cancelling, rescinding or terminating any FCC
Authorization.
(cc) To the Company's knowledge, all material reports and filings
required to be filed by the Company with the FCC have been timely filed, and all
such reports and filings are
14
accurate and complete. To the Company's knowledge, all regulatory fees required
to be paid by the Company to the FCC have been timely filed and paid.
(dd) The Company's systems include wireless systems operating in the
US in whole or in part on BRS, EBS, or other spectrum licensed by the FCC to
third parties (each a "Lessor") and used or leased by the Company under certain
spectrum leases, capacity use agreements or other similar arrangements between
the Company (or subsidiaries of the Company) and the Lessors (each a "Spectrum
Lease"). Except for Spectrum Leases grandfathered under the FCC's rules,
Clearwire believes each Spectrum Lease complies with the FCC's rules, including
but not limited to Sections 1.9020 and 1.9030. Except for Spectrum Leases
grandfathered under the FCC's rules, Clearwire believes each Spectrum Lease
constitutes either a "manager" lease (each a "Manager Lease") or a "de facto
transfer" Lease (each a "Transfer Lease") as described in the FCC's rules.
(ee) To the extent required under the FCC's rules and except for
Spectrum Leases grandfathered under the FCC's rules, the Company (or its
applicable subsidiary) has timely filed each Manager Lease with the FCC. To the
extent required under the FCC's rules and except for Spectrum Leases
grandfathered under the FCC's rules, the Company (or its applicable subsidiary)
has filed for and is awaiting (and the FCC Authorizations will include) FCC
consent to each Transfer Lease. To the knowledge of the Company, (i) each Lessor
holds all FCC licenses, permits and authorizations (the "Lessor Licenses")
necessary to operate the License that is subject to the Spectrum Lease to which
it is a party, (ii) the representations and warranties set forth in Section
8(bb) are true and correct with respect to the Lessor Licenses, and the
representations and warranties set forth in Section 8(cc) are true and correct
with respect to the Lessors, and (iii) the representations and warranties made
by the Lessors under the Spectrum Leases are true and correct. Each Spectrum
Lease is set forth on Schedule 8(ee) and identified as a grandfathered Lease, a
Manager Lease or a Transfer Lease.
(ff) Employee Benefits.
(i) Set forth in Schedule 8(ff) is a complete and correct list
of all "employee benefit plans" as defined by section 3(3)
of the Employee Retirement Income Security Act of 1974, as
amended ("ERISA"), all specified fringe benefit plans as
defined in Section 6039D of the Code, and all bonus,
incentive-compensation, profit-sharing, stock-based
compensation, severance, change-in-control, or other
employee compensation or benefit programs, policies or
practices (whether written or unwritten) that are maintained
or contributed to by the Company or any Subsidiary, with all
such plans, programs and arrangements referred to as the
"Employee Plans".
(ii) Neither the Company nor any other entity, which together
with the Company is treated as a single employer under
Section 414 of the Code (an "ERISA Affiliate") maintains,
sponsors or is obligated to contribute to (or has ever
maintained, sponsored or been obligated to contribute to) an
Employee Plan that is subject to Section 302 of
15
ERISA, Section 412 of the Code, or Title IV of ERISA, or a
"multiemployer plan", as defined in Section 3(37) of ERISA.
(iii) Each Employee Plan has been maintained in all material
respects in accordance with its terms and with all
provisions of ERISA, the Code and other applicable laws, and
the Company and each of its Subsidiaries have not incurred,
and no facts exist which could result in, any obligation,
penalty, tax or other liability with respect to any Employee
Plan that could be imposed on Investor.
(gg) All insurance policies maintained by the Company are with
reputable insurance carriers, are in such amounts and provide coverage against
such customary risks incident to the business of the Company and its properties
and assets, are in character and amount and have deductibles consistent with
coverage carried by reasonably prudent persons of similar size engaged in
similar businesses and subject to the same or similar perils or hazards. The
Company has not received notice of any cancellation or termination or disclaimer
of liability under any such policy or notice or any indication of any intent to
do so or not to renew or to increase the premium with respect to any such
policy.
9. RESTRICTED SECURITIES. Investor understands that the Securities have not
been, and will not be, registered under the Securities Act, by reason of a
specific exemption from the registration provisions of the Securities Act which
depends upon, among other things, the bona fide nature of the investment intent
and the accuracy of Investor's representations as expressed herein. Investor
understands that the Securities are "restricted securities" under the Securities
Act, inasmuch as they are being acquired from the Company in a transaction not
involving a public offering and that under such laws and applicable regulations
such Securities may be resold without registration under the Securities Act,
only in certain limited circumstances and Investor agrees not to transfer the
Securities unless the transfer of the Securities is made: (i) pursuant to an
effective registration statement under the Securities Act; (ii) to the Company;
(iii) outside the United States in accordance with Rule 904 of Regulation S
under the Securities Act and in compliance with local laws; or (iv) within the
United States (A) in accordance with the exemption from registration under the
Securities Act provided by Rule 144 thereunder, if available, and in compliance
with any applicable state securities laws, and Investor shall be required to
furnish to the Company an opinion to such effect from counsel of recognized
standing reasonably satisfactory to the Company prior to such offer, sale or
transfer or (B) in a transaction that does not require registration under the
Securities Act or applicable state securities laws, and Investor shall be
required to furnish to the Company an opinion to such effect from counsel of
recognized standing reasonably satisfactory to the Company prior to such offer,
sale or transfer. Investor acknowledges that the Company has no obligation to
register or qualify the Securities for resale except as set forth in the
Investor Rights Agreement and that the Company is required to refuse to register
any transfer not made in accordance with the provisions of this Section 9.
Investor further acknowledges that if an exemption from registration or
qualification is available, it may be conditioned on various requirements
including, but not limited to, the time and manner of sale, the holding period
for the Securities, and on requirements relating to the Company which are
outside of Investor's control, and which the Company is under no obligation and
may not be able to satisfy. Investor also acknowledges that the certificates
representing the Securities shall bear the restrictive legends required under
16
applicable federal and state securities laws and the Stockholders Agreement. The
provisions of this Section 9 shall survive the Closing.
10. STOCKHOLDERS AGREEMENT. Investor and Clearwire acknowledge and agree
that the Purchased Shares shall be subject to all of the terms of the Equity
Agreements, including, among other provisions, the restrictions on transfer and
confidentiality obligations set forth therein. Investor further agrees, at the
Closing, to sign the SA Joinder Agreement and to become bound by the terms and
conditions of the Equity Agreements.
11. INVESTOR RIGHTS AGREEMENT. At the Closing, Investor shall become a
party to the Investor Rights Agreement, by executing and delivering the Investor
Rights Agreement.
12. COMMERCIAL AGREEMENT. At the Closing, Investor and Clearwire US, LLC
shall enter into the Commercial Agreements.
13. COVENANTS.
(a) Except for the transactions contemplated under the Concurrent
Subscription Agreement and the agreements delivered by the Company pursuant
thereto and the Commercial Agreements and Acquisition Agreement, from the date
hereof until the Closing, the Company shall carry on, and ensure that its
subsidiaries carry on, their respective businesses in the ordinary course of
business and substantially in the same manner as previously conducted and
neither the Company nor any of its subsidiaries shall consummate any
extraordinary transaction which results in a fundamental change in the course of
the Company's business.
(b) Each of Investor and the Company shall use commercially reasonable
efforts to cause the conditions set forth in Section 5 and Section 6 herein to
be satisfied and to consummate the transactions contemplated herein.
14. SURVIVAL OF WARRANTIES. Except as otherwise provided herein, the
representations and warranties of the Company and Investor contained in or made
pursuant to this Agreement shall survive the execution and delivery of this
Agreement and the Closing for a period of one (1) year following the Closing.
Notwithstanding the foregoing, nothing in this Section 14 shall be construed to
extend the representations, warranties and covenants contained herein beyond the
period set forth in the applicable statute of limitations.
15. INDEMNITY. Investor and Clearwire will indemnify and hold each other,
as well as their respective officers, directors, stockholders, agents, attorneys
and affiliates (the "Indemnified Parties") harmless from and against, and will
reimburse the Indemnified Parties for, any and all losses, damages, debts,
liabilities, obligations, judgments, orders, awards, writs, injunctions,
decrees, fines, penalties, taxes, costs or expenses (including but not limited
to any legal and accounting fees and expenses) ("Losses") arising out of or
based upon any false representation or warranty or breach or failure by Investor
or Clearwire, as the case may be, to comply with any covenant or agreement made
by Investor or Clearwire, as the case may be, in this Agreement or in any other
document furnished by Investor or Clearwire, as the case may be, to the other in
connection with this Agreement (other than the other Transaction Agreements,
which shall be subject to any indemnification or other remedy provisions
contained therein).
17
16. REQUIRED FILINGS; COOPERATION. As promptly as practicable but in no
event more than five (5) days after the date of this Agreement, each of
Clearwire and Investor will make all filings required to be made by them in
order to complete the transactions contemplated under this Agreement (including
all filings under the HSR Act). Between the date of this Agreement and the
Closing, each party will (a) cooperate with the other party with respect to all
filings that such other party elects to make or is required by applicable laws
to make in connection with the transactions contemplated under this Agreement,
and (b) cooperate with the other party, including taking all actions reasonably
requested by such other party, to cause early termination of any applicable
waiting period under the HSR Act.
17. REVOCABILITY. Investor and Clearwire understand and agree that this
Agreement may be canceled, terminated, or revoked only by the mutual written
consent of Investor and Clearwire. Notwithstanding the foregoing, however, this
Agreement may be terminated by either Investor or Clearwire if the Closing shall
not have occurred on or before December 31, 2006, provided that the failure to
close on or before such date is not the fault of the terminating party.
18. NOTICE. Any notices or other communications in connection herewith
shall be sufficiently given if sent by registered or certified mail, postage
prepaid, or by facsimile transmission, and:
(i) if to the Company, at
Clearwire Corporation
5808 Lake Washington Blvd. NE, Suite 300
Kirkland, WA 98033
Facsimile No: 425-216-7900
Attn: Broady Hodder, General Counsel
With a copy to:
Davis Wright Tremaine LLP
2600 Century Square
1501 Fourth Avenue
Seattle, WA 98121
Facsimile No: 206-628-7699
Attn: Julie A. Weston, Esq.
(ii) if to Investor, at
Motorola, Inc.
1475 W. Shure Drive
Arlington Heights, IL 60004
Facsimile No: 847-632-3020
Attn: Kevin Gilbert
With a copy to:
18
Motorola, Inc.
1303 East Algonquin Road
Schaumburg, Illinois 60196
Facsimile No: (847) 576-3750
Attn: General Counsel
and
Winston & Strawn LLP
35 West Wacker Drive
Chicago, Illinois 60601
Attention: Oscar A. David, Esq.
Fax: (312)558-5700
or at such other address as either Investor or the Company shall
designate to the other by notice in writing.
19. ASSIGNABILITY; SUCCESSORS AND ASSIGNS. Neither party may assign or
transfer any of its rights or obligations under this Agreement without the prior
written consent of the other party. The terms and conditions of this Agreement
shall inure to the benefit of and be binding upon the respective successors and
assigns of the parties. Nothing in this Agreement, express or implied, is
intended to confer upon any party, other than the parties hereto or their
respective successors and assigns, any rights, remedies, obligations or
liabilities under or by reason of this Agreement, except as expressly provided
in this Agreement.
20. MODIFICATION. Neither this Agreement nor any provision hereof shall be
modified, discharged or terminated except by an instrument in writing signed by
the party against whom any waiver, change, discharge or termination is sought.
21. ENTIRE AGREEMENT. This Agreement, the other Equity Agreements and the
documents referred to herein and therein constitute the entire agreement among
the parties with respect to the subject matter hereof and thereof and no party
shall be liable or bound to any other party in any manner by any warranties,
representations, covenants or agreements except as specifically set forth herein
or therein.
22. APPLICABLE LAW. This Agreement shall be governed by and construed in
accordance with the laws of the state of Delaware and, to the extent it involves
any United States statute, in accordance with the laws of the United States.
23. FINDERS' FEES. Except as provided otherwise in Schedule 23 attached
hereto, each party represents that it neither is nor will be obligated for any
finders' fees or commissions in connection with this Agreement or the
transactions contemplated hereby. Investor agrees to indemnify and to hold
harmless the Company from any liability for any commission or compensation in
the nature of finders' fees (and the costs and expenses (including legal, travel
and out-of-pocket expenses) of defending against such liability or asserted
liability) for which Investor or any of its officers, directors, employees, or
representatives is responsible. The Company agrees to indemnify and hold
harmless Investor from any liability for any commission
19
or compensation in the nature of a finders' fee (and the costs and expenses
(including legal, travel and out-of-pocket expenses) of defending against such
liability or asserted liability) for which the Company or any of its officers,
employees or representatives is responsible.
24. SEVERABILITY. If one or more provisions of this Agreement are held to
be unenforceable under applicable law, such provision shall be excluded from
this Agreement and the balance of the Agreement shall be interpreted as if such
provision were so excluded and shall be enforceable in accordance with its
terms.
25. FEES AND EXPENSES. Except as otherwise expressly provided for in this
Agreement, the Company, on the one hand, and Investor, on the other hand, shall
each pay all of its own expenses incurred in connection with the transactions
contemplated by this Agreement, including any and all legal, accounting,
investment banking and consulting fees and expenses incurred in negotiating,
executing and delivering this Agreement and the other agreements, exhibits,
schedules, documents and instruments contemplated by this Agreement.
Notwithstanding the foregoing, each of the Company and Investor shall pay
one-half of the filing fees under the HSR Act related to the transactions
contemplated by this Agreement.
26. CURRENCY. All dollar amounts referred to in this Agreement, including
the symbol "$", refer to lawful money of the United States of America.
27. COUNTERPARTS. This Agreement may be executed in two (2) or more
original or facsimile counterparts all of which together shall constitute one
and the same instrument.
28. DESCRIPTIVE HEADINGS. The descriptive headings of this Agreement are
inserted for convenience of reference only and do not constitute a part of and
shall not be utilized in interpreting this Agreement.
29. DELAYS OR OMISSIONS. No failure to exercise or delay in the exercise of
any right, power or remedy accruing to Investor upon any breach or default of
the Company under this Agreement shall impair any such right, power or remedy of
Investor nor shall it be construed to be a waiver of any such breach or default,
or an acquiescence therein, or of or in any similar breach or default thereafter
occurring; nor shall any waiver of any single breach or default be deemed a
waiver of any other breach or default theretofore or thereafter occurring.
30. EFFECTIVE DATE. This Agreement shall not be effective, and Investor
shall have no obligations hereunder, until such time as that certain
Subscription Agreement as disclosed in final form to Investor prior to the date
hereof (the "Concurrent Subscription Agreement"), has been executed by the
Company and the investor identified therein (the "Concurrent Investor").
[Remainder of this page is intentionally left blank.]
20
The undersigned have duly executed this Agreement as of this 30th day of June,
2006.
MOTOROLA, INC.
By: /s/ GREGORY BROWN
---------------------------------
Name: GREGORY BROWN
Title: EXECUTIVE VICE PRESIDENT
CLEARWIRE CORPORATION
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
The undersigned have duly executed this Agreement as of this 30 day of June,
2006.
MOTOROLA, INC.
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
CLEARWIRE CORPORATION
By: /s/ Benjamin G. Wolff
---------------------------------
Name: Benjamin G. Wolff
Title: Co-Chief Executive Officer
EXHIBIT A TO SUBSCRIPTION AGREEMENT
JOINDER TO STOCKHOLDERS AGREEMENT
(attached)
EXHIBIT B TO SUBSCRIPTION AGREEMENT
INVESTOR RIGHTS AGREEMENT
(attached)
EXHIBIT C TO SUBSCRIPTION AGREEMENT
COMMERCIAL AGREEMENTS
(attached)
EXHIBIT D TO SUBSCRIPTION AGREEMENT
LEGAL OPINION
(attached)
EXHIBIT E TO SUBSCRIPTION AGREEMENT
INVESTOR LETTER
(attached)
EXHIBIT F TO SUBSCRIPTION AGREEMENT
ACQUISITION AGREEMENT
(attached)
EXHIBIT G TO SUBSCRIPTION AGREEMENT
THIRD AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
(attached)
Dates Referenced Herein
| Referenced-On Page |
|---|
| This ‘S-1/A’ Filing | | Date | | First | | Last | | | Other Filings |
|---|
| |  |
| Filed on: | | 1/8/07 | | | | | | | None on these Dates |
| | 12/31/06 | | 18 |
| | 3/31/06 | | 11 |
| | 12/31/05 | | 8 | | 12 |
| | 12/31/04 | | 11 |
| | 3/16/04 | | 2 |
| | 12/31/03 | | 11 |
| List all Filings |
↑Top
Filing Submission 0000891020-07-000003 – Alternative Formats (Word / Rich Text, HTML, Plain Text, et al.)
Copyright © 2024 Fran Finnegan & Company LLC – All Rights Reserved.
About — Privacy — Redactions — Help —
Fri., Apr. 19, 7:36:53.1am ET 