Document/Exhibit Description Pages Size
1: S-1 Registration Statement (General Form) HTML 1.79M
2: EX-3.1 Ex-3.1: Third Amended and Restated Certificate of 23 97K
Incorporation
3: EX-3.2 Ex-3.2: Amended and Restated Bylaws 14 61K
11: EX-4.10 Ex-4.10: Form of Warrant 29 120K
4: EX-4.2 Ex-4.2: Amended and Restated Stockholders 50 169K
Agreement
5: EX-4.3 Ex-4.3: Registration Rights Agreement 12 64K
6: EX-4.4 Ex-4.4: Registration Rights Agreement 22 89K
7: EX-4.5 Ex-4.5: Registration Rights Agreement 64 188K
8: EX-4.7 Ex-4.7: Securities Purchase Agreement 83 314K
9: EX-4.8 Ex-4.8: Indenture 107 506K
10: EX-4.9 Ex-4.9: Form of Senior Secured Note 20 65K
12: EX-10.1 Ex-10.1: Advisory Services Agreement 25 87K
21: EX-10.13 Ex-10.13: Master Spectrum Acquisition Agreement 39 166K
22: EX-10.14 Ex-10.14: First Addendum and Amendment to Master 13 66K
Spectrum Acquisition Agreement
23: EX-10.15 Ex-10.15: Itfs Capacity Use and Royalty Agreement 67 221K
24: EX-10.16 Ex-10.16: Spectrum Access and Loan Facility 103 418K
Agreement
25: EX-10.17 Ex-10.17: Warrant Agreement 9 42K
26: EX-10.18 Ex-10.18: Letter Agreement 2 19K
27: EX-10.19 Ex-10.19: Spectrum Acquisition Consulting 24 93K
Agreement
13: EX-10.2 Ex-10.2: Indemnification Agreement 12 67K
28: EX-10.20 Ex-10.20: Letter Agreement 3 20K
29: EX-10.21 Ex-10.21: Amendment and Consent 3 19K
30: EX-10.22 Ex-10.22: Second Amendment and Consent 4 22K
31: EX-10.23 Ex-10.23: Spectrum Option Agreement 103 377K
32: EX-10.24 Ex-10.24: Ebs Capacity Use and Royalty Agreement 65 217K
33: EX-10.27 Ex-10.27: Stock Purchase Agreement 43 189K
34: EX-10.28 Ex-10.28: Stock Purchase Agreement 34 145K
14: EX-10.3 Ex-10.3: Form of Indemnification Agreement 12 66K
35: EX-10.32 Ex-10.32: Credit Agreement 34 111K
36: EX-10.33 Ex-10.33: Security Agreement 16 61K
37: EX-10.34 Ex-10.34: Movable Hypothec Agreement 15 61K
38: EX-10.35 Ex-10.35: Purchase Agreement 44 169K
39: EX-10.36 Ex-10.36: Equipment Lease Agreement 18 77K
40: EX-10.37 Ex-10.37: Purchase Agreement 33 100K
41: EX-10.38 Ex-10.38: Purchase Agreement 40 124K
15: EX-10.4 Ex-10.4: Letter Agreement 2 20K
42: EX-10.43 Ex-10.43: Stock Purchase Agreement 45 193K
43: EX-10.44 Ex-10.44: Purchase Agreement 28 96K
44: EX-10.49 Ex-10.49: Loan Agreement 74 358K
16: EX-10.5 Ex-10.5: Letter Agreement 2± 18K
45: EX-10.50 Ex-10.50: Guarantee and Collateral Agreement 34 166K
17: EX-10.6 Ex-10.6: Letter Agreement 2± 18K
46: EX-10.64 Ex-10.64: Office Lease Agreement 47 260K
47: EX-10.65 Ex-10.65: Securities Purchase Agreement 55 208K
48: EX-10.66 Ex-10.66: Investment Agreement 12 62K
49: EX-10.67 Ex-10.67: Indemnification Agreement 15 66K
50: EX-10.68 Ex-10.68: Stock Purchase Agreement 64 226K
51: EX-10.69 Ex-10.69: Stock Purchase Agreement 113 358K
18: EX-10.7 Ex-10.7: Employment Agreement 11 56K
19: EX-10.8 Ex-10.8: Letter Agreement 2± 18K
20: EX-10.9 Ex-10.9: Stock Option Plan 15 74K
52: EX-21.1 Ex-21.1: List of Subsidiaries 2± 17K
53: EX-23.1 Ex-23.1: Consent of Deloitte and Touche LLP HTML 15K
EXHIBIT 10.66
EXECUTION COPY
BANDA ANCHA S.A.
INVESTMENT AGREEMENT
This Investment Agreement (this "Agreement") is made as of the 7th day of
December, 2005.
BY AND BETWEEN
Banda Ancha S.A., a company incorporated under the laws of Spain (the
"Company");
BASA Holding Iberia, S.L.U., a company incorporated under the laws of Spain
("BHI");
Clearwire Europe S.a.r.l., a limited liability company organized under the
laws of Luxembourg (the "Clearwire").
The Company, BHI, and Clearwire shall be jointly referred to as the
"Parties" and each of them, individually, as a "Party".
RECITALS
WHEREAS, as of the date of this Agreement, the Company has a share capital
of 4,563,862 Euros, divided in 4,563,862 shares, with a par value of E1.00 each,
all of the same class and series, totally subscribed and paid up and free from
any lien, pledge, usufruct, charge, security interest, right of first refusal,
option or right of others therein, or encumbrance of any nature whatsoever
("Liens") except as provided for in the corporate By-laws.
WHEREAS, as of the date hereof, BHI is the legal owner of 100% of the
outstanding shares of BASA.
WHEREAS, the Company requires additional capital contributions to enable it
to continue its development from the date of this Agreement onwards.
WHEREAS, concurrently with the execution of this Agreement, BHI, Clearwire
Corporation and Clearwire are entering into a Securities Purchase Agreement (the
"Securities Purchase Agreement"), pursuant to which Clearwire will purchase all
of BHI's shares of the Company upon fulfillment of certain conditions.
WHEREAS, Clearwire is willing to supply such financial support through the
subscription of shares of the Company, in exchange of 51% of the voting interest
in the Company.
WHEREAS, concurrently with the subscription of the shares, Clearwire is
willing to make a credit facility available to BHI secured by a pledge of a
portion of BHI's shares in the Company.
NOW, THEREFORE, in consideration of the premises and the mutual
representations, warranties, covenants, conditions and agreements hereinafter
set forth, the Parties agree to enter into this Agreement pursuant to the
following:
ARTICLE 1. INVESTMENT
SECTION 1.1 INVESTMENT. Subject to the terms and conditions of this
Agreement, Clearwire agrees to contribute, and BHI and the Company agree to
accept the contribution by Clearwire of E4,750,143 to the Company in exchange
for 4,750,143 shares of the common stock of the Company, par value E1.00 per
share, representing 51% of the share capital of the common stock of the Company
("Purchased Shares"), at a price per share of E1.00 (the "Investment"). The
Investment shall be made in the manner set forth in this Article 1.
SECTION 1.2 CLOSING. The closing of the Investment shall take place at the
offices of Gomez Acebo & Pombo, Madrid, at 10:00a.m. (Spanish time)
concurrently with the execution of this Agreement, or at such other time and
place as the Parties shall agree, either orally or in writing (which time and
place are designated as the "Closing").
SECTION 1.3 ACTIONS TO BE CARRIED OUT AT THE CLOSING.
(a) At the Closing, a Universal General Shareholders Meeting of the
Company will be held with the attendance of BHI, as owner of 100% of the issued
share capital, whereby BHI, as sole shareholder of the Company, will approve a
capital increase for the amount of the Investment by way of the issuance of
4,750,143 Purchased Shares, for an amount of E1.00 per share, pursuant to
resolutions reasonably acceptable to Purchaser's counsel.
(b) In the General Shareholders Meeting to be held at the Closing, BHI
will waive its pre-emptive rights and the Purchased Shares will totally be
subscribed by Clearwire, who will fully pay them in by paying the Purchase
Price.
(c) BHI and Clearwire will enter in a credit facility agreement (the
"Credit Agreement") recorded in a public deed granted before a Notary Public.
Pursuant to the Credit Agreement, BHI and Clearwire will enter into an
agreement, recorded in a public deed granted before a Notary Public pursuant to
which BHI will grant a pledge over 1,200,000 shares of the Company, in favor of
Clearwire (the "Pledge Agreement").
(d) BHI, the Company and Clearwire will enter into a shareholders
agreement (the "Shareholders Agreement").
(e) BHI, Clearwire and Clearwire Corporation will enter into an
indemnification agreement (the "Indemnification Agreement") before the Notary
and which will be granted in a Public Deed.
(f) Once all the former actions have been carried, a General
Shareholders Meeting of the Company will be held with the attendance of BHI and
Clearwire, as owners of
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100% of the issued share capital, whereby BHI and Clearwire will unanimously
resolve to (i) amend and restate the Company's By-laws; and (ii) accept the
resignation or either dismiss all of the current members of the Board of
Directors of the Company (the "Board") and appoint new members, pursuant to the
Shareholders Agreement.
(g) The new members of the Board of Directors will hold a meeting of
the Board of Directors whereby the positions within said Board will be
distributed pursuant to the Shareholders Agreement. The Board will appoint the
Managing Director, revoke any current powers of attorney and grant new powers of
attorney, all in its discretion.
(h) The new secretary of the Board of Directors will certify all the
above resolutions with the approval of the new President and the signature of
the former Secretary of the Board of Directors and a public deed will be granted
before a Spanish Notary Public pursuant to which said amendments of the
corporate By-laws, the execution of the share capital increase, totally
subscribed and paid in, and the appointment of the new members of the Board of
Directors and the distributions of posts amongst them, are publicly recorded.
(i) The Company will deliver to BHI Certificates representing the
shares of common stock of the Company held by BHI. All such certificates shall
bear the legends set forth in the Shareholders Agreement.
(j) From the proceeds of the Purchase Price, the Company shall pay all
intercompany obligations owed by the Company, on one hand, to BHI, RSL or any of
their respective Affiliates, on the other hand, arising after June 1, 2005 and
any costs and expenses incurred as a consequence of the Madrid launching,
whether incurred before or after June 1, 2005, all such in an aggregate amount
not to exceed E2,251,299.03, but specifically excluding the Permitted
Intercompany Debt (as defined in the Securities Purchase Agreement) (the
"Repayable Intercompany Debt").
(k) BHI will deliver to Clearwire the public deeds and statutory books
(libros sociales) and other corporate documents of the Company, including,
without limitation, the Deed of incorporation, the By-laws, all the Deeds
modifying the By-laws, any other public deed granted during the corporate life,
the Books of Minutes of the General Shareholders Meetings and of the Board of
Directors, Registry Book of Shareholders, each legalized and up to date.
ARTICLE 2. REPRESENTATIONS AND WARRANTIES.
SECTION 2.1 REPRESENTATIONS AND WARRANTIES OF BHI AND THE COMPANY. BHI and
the Company specifically declare to Clearwire that the representations and
warranties in this Section 2.1 are true, complete and accurate. Each of such
representations and warranties is separate and independent and, except as
expressly provided to the contrary in the Securities Purchase Agreement or this
Agreement, is not limited by reference to any other paragraph of this Section
2.1 or by anything in the Securities Purchase Agreement or this Agreement. BHI
and the Company acknowledge that such representations and warranties are
essential elements for Clearwire to enter into this Agreement and for Clearwire
to bind itself to make the Investment.
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(a) INCORPORATED REPRESENTATIONS AND WARRANTIES. The representations
and warranties contained in the Securities Purchase Agreement, including but not
limited to Schedule A attached thereto, and the Disclosure Schedule, are
incorporated herein by reference and are true, complete and accurate.
(b) AMENDMENT OF INTERCOMPANY DEBT. BHI declares to Clearwire that,
except for the Repayable Intercompany Debt and the Permitted Intercompany Debt,
all existing intercompany obligations between the Company, on one hand, and BHI,
RSL or any of their respective Affiliates, on the other hand, have been
transferred to BHI. BHI hereby agrees that all such intercompany obligations
shall not be subject to repayment and instead shall be converted into shares of
the Company's common stock immediately prior to the closing of the transactions
contemplated by the Securities Purchase Agreement. BHI further agrees that, if
the Securities Purchase Agreement is terminated by its terms or if the
transactions contemplated thereby have not been consummated within one (1) year
from the date hereof, all such intercompany obligations shall remain outstanding
until there is a capital increase of common stock by the Company which triggers
preemptive rights in favor of BHI, at which time such intercompany obligations
shall be used by BHI to exercise such rights, and any remaining amount of such
intercompany obligations shall be used in the same manner in successive sales of
common stock by the Company until such time as all of such intercompany
obligations shall have been converted into common stock of the Company.
(c) EXISTING INTERCOMPANY AGREEMENTS. Except for the Continuing
Intercompany Agreements (as amended in accordance with Section 3.3) and except
as otherwise provided with respect to Third Party Services Contracts in Section
3.4, all existing agreements or arrangements, whether written or oral, between
the Company on one hand, and BHI, RSL or any of their respective Affiliates, on
the other hand, have been terminated and are no longer in effect. The Company
has no further obligations or liabilities with respect to such agreement.
(d) AUTHORIZATION. All corporate action on the part of BHI and the
Company, their respective officers, directors and stockholders necessary for the
authorization, execution and delivery of this Agreement and the agreements
contemplated to be delivered at Closing as set forth in Section 1.3, the
performance of all obligations of BHI and the Company hereunder and thereunder
at the Closing and the authorization, issuance and delivery of the Purchased
Shares as set forth in this Agreement when executed and delivered, will
constitute valid and legally binding obligations of BHI and the Company,
enforceable in accordance with their respective terms except (i) as limited by
applicable bankruptcy, insolvency, reorganization, moratorium, and other laws of
general application affecting enforcement of creditors' rights generally
vis-a-vis the Company and not BHI, RSL or any of its Affiliates, and (ii) as
limited by laws relating to the availability of specific performance, injunctive
relief, or other equitable remedies.
(e) VALID ISSUANCE OF SHARES. The Purchased Shares that are being
subscribed by Clearwire hereunder, when issued, and delivered in accordance with
the terms of this Agreement for the consideration expressed herein, will be duly
and validly issued, fully paid, and nonassessable, and will be free of Liens,
mortgages and restrictions on transfer other than restrictions on transfer under
this Agreement and the Shareholders Agreement and under applicable securities
laws.
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SECTION 2.2 REPRESENTATIONS AND WARRANTIES OF CLEARWIRE. Clearwire declares
to the Company and BHI that the representations and warranties by Clearwire
contained in the Securities Purchase Agreement are incorporated herein by
reference and are true, accurate and complete. Each of such representations and
warranties is separate and independent and, except as expressly provided to the
contrary in the Securities Purchase Agreement, is not limited by reference to
anything in the Securities Purchase Agreement or this Agreement. Clearwire
acknowledges that these representations and warranties are essential elements
for the Company and BHI to enter into this Agreement.
ARTICLE 3. COVENANTS
SECTION 3.1 CONFIDENTIALITY. Pursuant to this Agreement and the performance
thereof, each Party may receive Confidential Information. No Party shall use for
itself, except in performance of the Agreement, or disclose to any Person this
Agreement or any Confidential Information, except (a) information that was
gained independent of such Party's relationship with the other Party and became
publicly available through no breach of any obligation of confidentiality by
such Party; (b) information that is communicated to a third party with the prior
written consent of such Party; or (c) information that is required to be
disclosed pursuant to the lawful order of a government agency or disclosure that
is required by operation of law, but in such event, only to the extent such
disclosure is required and, to the extent reasonably practicable, prior written
notice must be given to allow the disclosing Party to seek a protective order or
other appropriate remedy. In the event of a beach or threatened breach of the
terms of this section, the disclosing Party shall be entitled to seek an
injunction prohibiting any such breach. Any such injunctive relief shall be in
addition to, and not in lieu of, any appropriate relief in the way of money
damages or any other remedies available at law or in equity. BHI acknowledges
and agrees that the terms of this Agreement may be required to be separately
stated in the consolidated financial statements of Clearwire and/or its
Affiliates and that the disclosure by Clearwire or its Affiliates of such
financial statements shall not be a breach of this Agreement. Notwithstanding
the foregoing, either party may disclose this Agreement to its affiliates,
strategic partners, actual or potential investors, lenders, acquirers, merger
partners; and others whom such party deems in good faith to have a need to know
such information for purposes of pursuing a transaction or business relationship
with such party; provided that such party has an enforceable non-disclosure or
confidentiality agreement in place with such Person that will provide at least
the same amount of protection as this Section 3.1.
SECTION 3.2 NONCOMPETITION; NONSOLICITATION.
(a) From the Closing Date and until the earlier of (i) the entry into
force of the non-competition and non-solicitation provisions of Section 4.8 of
the Securities Purchase Agreement, or (ii) for so long as BHI has a
representative on the Board of the Company or holds at least 15% of the share
capital of the Company, BHI, on behalf of itself and its Affiliates, covenants
that neither BHI nor any of its Affiliates shall engage in, or retain,
participate in or have any interest, directly or indirectly, in any Person
(whether as an investor, agent, employee, creditor or in any other capacity
which calls for the rendering of services, advice, acts of management, operation
or control) that engages in any broadband wireless access activities in Spain,
excluding (i) the resale of the Company's products and services pursuant to
agreements between BHI, or its Affiliates, and the Company approved by Clearwire
in its sole discretion, or
5
(ii) the continuation by BHI, RSL and ALO of their respective non-wireless/fixed
telecommunication services business activities existing as of the date of this
Agreement.
(b) From the Closing Date and until the earlier of (i) the entry into
force of the non-competition and non-solicitation provisions of Section 4.8 of
the Securities Purchase Agreement, or (ii) for so long as BHI has a
representative on the Board of the Company or holds at least 15% of the share
capital of the Company, BHI, on behalf of itself and its Affiliates, covenants
that neither BHI nor any of its Affdiates shall, directly or indirectly, (i)
employ or engage, recruit or solicit for employment any person who is or becomes
employed by the Company, or otherwise seek to influence or alter any such
person's relationship with the Company, or (ii) solicit or encourage any present
or future subscriber or customer of the Company to terminate or otherwise alter
his, her or its relationship with the Company (other than general solicitation
by BHI, RSL and ALO of its activities permitted pursuant to Section 3.2(a)(ii)).
(c) The Parties agree that the covenants contained in this Section
3.2, both as to time and area covered, are necessary to protect the Company and
Clearwire's investment in the Company and are deemed by the parties to be an
integral and important part of this Agreement. The Parties acknowledge and agree
that in the event of a breach of such covenants, Clearwire would not have an
adequate remedy at law, and Clearwire shall be entitled to injunctive relief in
addition to any other remedies which may be available to it under this
Agreement, at law or in equity. If any court of competent jurisdiction shall at
any time deem any of the covenants in this Section 3.2 too lengthy or the area
covered too extensive, the other provisions of this Section 3.2 shall
nevertheless stand, the term shall be deemed to be the longest period
permissible by law under the circumstances and the area covered shall be deemed
to comprise the largest territory permissible by law under the circumstances.
The court in each case shall reduce the time period and/or area covered to
permissible duration or size.
SECTION 3.3 TRANSITION SERVICES. The Continuing Intercompany Agreements
shall be amended as follows:
(a) For purposes of this Agreement, "Continuing Intercompany
Agreements" shall mean the following agreements: (i) Administrative Services
Agreement between the Company and RSL dated December 18, 2002; (ii) Agreement
for the Provision of Circuits between the Company and RSL dated December 31,
2002; and (iii) Agreement for the Provision of Data Services dated December 18,
2002 between the Company and ALO.
(b) Any services delivered pursuant to the Continuing Intercompany
Agreements shall be invoiced to the Company at the RSL Group's actual cost, or
to the RSL Group at the Company's actual cost, as applicable, including salary
or wages of individuals providing such services, and shall be paid within
fifteen (15) days as of the date of the invoice.
(c) Except as provided in Section 3.4 with respect to third party
services, the RSL Group shall continue providing the services to the Company,
and the Company shall continue providing services to the RSL Group, as
applicable, pursuant to each Continuing Intercompany Agreement until the earlier
of (i) such time as the applicable parties enter into new agreements with
Clearwire's prior written approval; (ii) such time as the parties thereto
mutually
6
agree to terminate such Continuing Intercompany Agreement; (iii) Clearwire or
the Company providing fifteen (15) days written notice of termination of such
Continuing Intercompany Agreement to the applicable member of the RSL Group; or
(iv) the applicable member of the RSL Group providing fifteen (15) days written
notice of termination of such Continuing Intercompany Agreement to the Company;
provided, however, that such notice to the Company cannot be given before a term
of two (2) months after the Closing has elapsed.
SECTION 3.4 THIRD PARTY CONTRACTS.
(a) The Parties shall make reasonable efforts to have the following
third party services contracted by the RSL Group and provided to the Company
assigned by the RSL Group to the Company following the Closing only if such
contracts are currently being used by the Company and are not in default by any
party thereto (the "Third Party Service Contracts"):
(i) Sites leased by RSL:
- Agreement with Josel, S.A. for site in Paseo Zona Franca 131-139,
Barcelona;
- Agreement with Comunidad Propietarios Plaza Castilla for site in
Plaza Castilla 3, Madrid (will be assigned notwithstanding the
payment default, which shall be covered under the Indemnification
Agreement);
- Agreement with Inmobiliaria Mola for site in Principe Vergara,
112, Madrid.
(ii) Circuits contracted by RSL:
- Ufinet 1 * E1
- Euskaltel 1 * E1
- Uni2 7*E1 + 3*E3
- Retevision 16 * El
- Telefonica 2 * E1 + 4 Ads1
- Cogent 5 * E1
- T-System IP connectivity 25 Mb/s
(iii) Company Office Space contracted by RSL:
- Modules A and B of the fifth floor of Doctor Zamenhof 22, Madrid,
as well as 33 parking spaces in the same building pursuant to a
lease agreement entered into between RSL and 22 Zamenhof, S.L."
dated February 2, 2000;
- Technical space at ground floor at Principe de Vergara 112,
Madrid pursuant to a lease agreement between RSL and Inmobiliaria
Mola; and
- Technical space at second floor at Principe de Vergara 112,
Madrid pursuant to a lease agreement between RSL and Inmobiliaria
Mola, which agreement will expire on December 31, 2005 and will
not be renewed.
7
If the Company determines not to accept assignment of any of the Third
Party Service Contracts that are not in default by any party thereto, then the
Company shall provide notice of such decision to the relevant RSL Group company
in sufficient time to allow such relevant RSL Group company to terminate the
applicable Third Party Service Contract without any early termination costs or
penalties. In the event that the Company does not provide sufficient notice, it
shall compensate and hold the relevant RSL Group company harmless from the
lesser of (i) any costs, expenses and penalties imposed on the relevant RSL
Group company by the third party as a result of the early termination of such
Third Party Service Contract, or (ii) any payments due or to become due for the
period until termination.
(b) In the event that the assignment of any Third Party Service
Contract by the RSL Group is not possible and the Company is interested in the
continuance of such services, the Company and the relevant RSL Group company
shall negotiate in good faith a term in which the RSL Group will continue
providing such services, which term shall be a reasonable term to allow the
Company to find an alternative supplier of such services.
(c) With respect to the agreement for the repayment of debt entered
into between the Company and 22 Zamenhof, S.L. dated June 9, 2003 as amended on
July 7, 2004, where repayment of the Company's debt is made through the
provision of services by the RSL Group, the Company will either (i) negotiate
with 22 Zamenhof, S.L. the repayment of the debt in a way other than the
provision of services by the RSL Group or (ii) reimburse the relevant RSL Group
companies for the provision of the services rendered under the mentioned
agreement at cost.
SECTION 3.5 BHI'S LIABILITY AND INDEMNIFICATION OBLIGATIONS. The liability
and indemnification obligations of BHI pursuant to this Agreement are as set
forth in the Indemnification Agreement.
ARTICLE 4. MISCELLANEOUS
SECTION 4.1 CERTAIN DEFINITIONS.
"Affiliate" means for any Person, a Person controlling, controlled by or
under common control with, such Person.
"Confidential Information" means any and all information regarding the
business, finances, operations, products, services and customers of the
disclosing Party and its Affiliates, in written or oral form or in any other
medium.
"Person" means an individual, a partnership, a corporation, a limited
liability company, an association, a joint shares company, a trust, a joint
venture, an unincorporated organization, or a government agency or authority.
SECTION 4.2 ENTIRE AGREEMENT. This Agreement and the documents and other
agreements referred to herein constitute the entire agreement among the parties
and no party shall be liable or bound to any other party in any manner by any
warranties, representations, or covenants except as specifically set forth
herein or therein.
8
SECTION 4.3 SURVIVAL. The warranties, representations, and covenants of the
Parties contained in or made pursuant to this Agreement shall survive the
execution and delivery of this Agreement and the closing of the transactions
contemplated hereby.
SECTION 4.4 SUCCESSORS AND ASSIGNS. Except as otherwise provided herein,
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.
SECTION 4.5 GOVERNING LAW. This Agreement shall be governed by, and
construed in accordance with, the internal laws of the Kingdom of Spain, without
reference to the choice of law principles thereof.
SECTION 4.6 ARBITRATION. All disputes arising out of or in connection with
the present contract shall be submitted to binding arbitration pursuant to the
provisions of this Section and under the Rules of Conciliation and Arbitration
of the International Chamber of Commerce (the "ICC"). The arbitration shall be
conducted in London, England or another mutually agreeable neutral location. The
arbitration shall be conducted in English. The arbitration shall be conducted
before a panel of three arbitrators, comprised of one arbitrator appointed by
each party to the dispute and one neutral arbitrator appointed in accordance
with the Rules of Conciliation and Arbitration of the ICC.
SECTION 4.7 EXPENSES. Except as otherwise expressly provided in this
Agreement, whether or not the transactions are consummated, the parties shall
bear their respective expenses (including, but not limited to, all compensation
and expenses of counsel, financial advisors, consultants, actuaries and
independent accountants) incurred in connection with this Agreement and the
Transactions. All filing fees required to be paid to any governmental authority
in connection with satisfying the conditions set forth in this Agreement will be
borne by the Company.
SECTION 4.8 TITLES AND SUBTITLES. The titles and subtitles used in this
Agreement are used for convenience only and are not to be considered in
construing or interpreting this Agreement.
SECTION 4.9 NOTICES. All notices or other communications hereunder shall be
in writing and shall be deemed to have been duly given or made (i) upon delivery
if delivered personally (by courier service or otherwise), as evidenced by
written receipt or other written proof of delivery (which may be a printout of
the tracking information of a courier service that made such delivery), or (ii)
upon confirmation of dispatch if sent by facsimile transmission (which
confirmation shall be sufficient if shown by evidence produced by the facsimile
machine used for such transmission), in each case to the applicable addresses
set forth below (or such other address which either Party may from time to time
specify):
9
If to BHI:
Basa Holding Iberica, S.L.U
Doctor Zamenhof, 22
28027 Madrid
Attention: Managing Director
Facsimile: 91 230 14 07
With a copy to:
Baker & McKenzie
Paseo de la Castellana 92
28046 Madrid
Attention: Maite Diez
Facsimile: 91 391 51 49
If to the Company:
Banda Ancha, S.A.
Doctor Zamenhof, 22
28027 Madrid
Attention: Managing Director
Facsimile: 91 230 14 00
If to Clearwire:
Clearwire Europe S.a.r.l.
5808 Lake Washington Blvd. Suite 300
Kirkland, WA 98033
Attention: Vice President, Legal Affairs
Facsimile: (425) 216-7900
With a copy to:
Davis Wright Tremaine LLP
2600 Century Square
1501 Fourth Avenue
Seattle, WA 98101
Attention: Julie Weston
Facsimile: 206-628-7699
SECTION 4.10 FINDER'S FEES. Each party represents that it neither is nor
will be obligated for any finder's fee or commission in connection with this
transaction and agrees that it shall indemnify and hold harmless the other party
from any liability for any commission or compensation in the nature of a
finder's fee (and the cost and expenses of defending against such
10
liability or asserted liability) for which such party or any of its officers,
partners, employees, or representatives is responsible.
SECTION 4.11 ATTORNEYS' FEES. If any action at law or in equity is
necessary to enforce or interpret the terms of this Agreement or the Articles of
the Company, the prevailing party shall be entitled to reasonable attorneys'
fees, costs, and disbursements in addition to any other relief to which such
party may be entitled.
SECTION 4.12 AMENDMENTS AND WAIVERS. Any term of this Agreement may be
amended and the observance of any term of this Agreement may be waived (either
generally or in a particular instance and either retroactively or
prospectively), only with the written consent of the Parties.
SECTION 4.13 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 was so excluded and shall be enforceable in accordance with its
terms.
SECTION 4.14 COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
BHI: COMPANY:
BASA HOLDINGS IBERIA, S.L.U. BANDA ANCHA, S.A.
/s/ Alejandro Rivas-Micoud /s/ Alejandro Rivas-Micoud
------------------------------------- ----------------------------------------
By: Alejandro Rivas-Micoud By: Alejandro Rivas-Micoud
Title: Managing Director and Special Title: Managing Director and Special
PoA PoA
CLEARWIRE:
CLEARWIRE EUROPE S.A.R.L.
By: /s/ Nicolas Kauser
------------------------------------
Title: Nicolas Kauser, Manager
11
ALO COMUNICACIONES ESPANA, S.L. gives its consent for the purposes of that
covered by Article 3 in as far as they regard rights and obligations of such
company and agrees to be bound thereby. Likewise, ALO COMUNICACIONES ESPANA
S.L. appoints BHI as their representative for all notification purposes with the
details quoted in Section 4.9
ALO COMUNICACIONES ESPANA, S.L.
By: /s/ Alejandro Rivas-Micoud
---------------------------------
Name: Alejandro Rivas-Micoud
Title: Managing Director and Special
PoA
12
Dates Referenced Herein and Documents Incorporated by Reference
| Referenced-On Page |
|---|
| This ‘S-1’ Filing | | Date | | First | | Last | | | Other Filings |
|---|
| |  |
| Filed on: | | 12/19/06 | | | | | | | None on these Dates |
| | 12/31/05 | | 7 |
| | 6/1/05 | | 3 |
| | 7/7/04 | | 8 |
| | 6/9/03 | | 8 |
| | 12/31/02 | | 6 |
| | 12/18/02 | | 6 |
| | 2/2/00 | | 7 |
| List all Filings |
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