EXHIBIT 4.4
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BLUE SKY COMMUNICATIONS, INC.
REGISTRATION RIGHTS AGREEMENT
DATED AS OF OCTOBER 2, 2000
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REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (the "Agreement"), is made and entered
into as of October 2, 2000, among BLUE SKY COMMUNICATIONS, INC., a Georgia
corporation (the "Company"), INTERWAVE COMMUNICATIONS INTERNATIONAL, LTD., a
Bermuda corporation (the "Investor"), Telecom Wireless Solutions, Inc., a
Delaware corporation ("TWS") and Stanford Financial Group Company, a Florida
Corporation ("Stanford")(collectively, TWS and Stanford shall be referred to as
the "Shareholders").
W I T N E S S E T H:
WHEREAS, the Company and the Investors have entered into a Stock Purchase
Agreement (the "Purchase Agreement"), dated as of the date hereof, pursuant to
which the Investor has agreed to purchase, and the Company has agreed to issue,
1,175,000 shares of the Company's Series A Convertible Preferred Stock, par
value $0.001 per share (the "Purchased Stock"); and
WHEREAS, in connection with the Purchase Agreement, the Company has agreed
to grant the Investor and Shareholders certain rights concerning registration of
the Company's Common Stock as more particularly set forth herein.
NOW THEREFORE, in consideration of the premises and the mutual covenants
and agreements contained herein and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
1. DEFINITIONS. For purposes of this Agreement, the following terms shall have
the following respective meanings:
(a) "COMMISSION" shall mean the Securities and Exchange Commission or any other
federal agency at the time administering the Securities Act.
(b) "COMMON STOCK" shall mean the common stock, par value $ 0.001 per share, of
the Company.
(c) "HOLDER" shall mean the Investor and Shareholders who hold Registrable
Securities or Purchased Stock and any person holding Registrable Securities or
Purchased Stock to whom the rights under this Agreement have been transferred in
accordance with Section 11 hereof.
(d) "INITIATING HOLDERS" shall mean the Investor, Shareholders or transferees of
such parties under Section 11 hereof who in the aggregate are Holders of greater
than thirty percent (30%) of the Registrable Securities.
(e) "MAJORITY HOLDER" shall mean the Investor, Shareholders or transferees of
such parties under Section 11 hereof who in the aggregate are Holders of greater
than (50%) of the Registrable Securities.
(f) "PREFERRED STOCK" shall mean the preferred stock, par value $0.001 per
share, of the Company.
(g) "QUALIFYING IPO" shall mean an underwritten public offering of shares of the
Company's Common Stock at a price per share that is not less than Eight and
40/100 Dollars ($8.40) and with aggregate offering proceeds of at least
Twenty-Five Million Dollars ($25,000,000).
(h) "REGISTER," "REGISTERED" and "REGISTRATION" refer to a registration effected
by preparing and filing with the Commission a registration statement in
compliance with the Securities Act, and the declaration or ordering of the
effectiveness of such registration statement.
(i) "REGISTRABLE SECURITIES" means (i) any Common Stock of the Company issued or
issuable in respect of the Purchased Stock (the "Conversion Stock"); and (ii)
any other securities issued or issuable pursuant to the conversion of the
Purchased Stock or the Conversion Stock upon any stock split, stock dividend,
recapitalization, or similar event, or any Common Stock otherwise issued or
issuable with respect to the Purchased Shares, any convertible notes, options or
warrants of the Company held by the Investor or Shareholders.
(j) "REGISTRATION EXPENSES" shall mean all expenses, except Selling Expenses as
defined below, incurred by the Company in complying with Sections 4 and 5
hereof, including, without limitation, all registration, qualification and
filing fees, printing expenses, escrow fees, fees and disbursements of counsel
for the Company, blue sky fees and expenses, the expense of any special audits
incident to or required by any such registration (but excluding the compensation
of regular employees of the Company which shall be paid in any event by the
Company) and the reasonable fees and disbursements of one counsel for all
Holders.
(k) "SECURITIES ACT" shall mean the Securities Act of 1933, as amended.
(l) "SELLING EXPENSES" shall mean all underwriting discounts, selling
commissions, stock transfer taxes applicable to the securities registered by the
Holders and, except as set forth in the definition of Registration Expenses, all
fees and disbursements of special counsel for any Holder.
2. RESTRICTIONS ON TRANSFERABILITY. The Purchased Stock, the Conversion Stock or
any other Common Stock shall not be sold, assigned, pledged or in any way
transferred except upon satisfaction of the conditions specified in the
Shareholders' Rights Agreement of even date herewith among the parties hereto
and other shareholders described therein (as amended from time to time, the
"Shareholders Agreement"), which conditions are intended to ensure compliance
with the provisions of the Securities Act. The Investor and Shareholders will
cause any proposed purchaser, assignee, pledgee or transferee of the Purchased
Stock, Conversion Stock or any other Common Stock held by such parties to agree
to take and hold such securities subject to the provisions and conditions of
such Shareholders Agreement for so long as such Shareholders Agreement is in
effect.
3. RESTRICTIONS ON REGISTRATION. The registration rights referred to in this
Agreement apply only to shares of Common Stock, and shall not apply to any
Preferred Stock of the Company. Notwithstanding the foregoing, in the event of a
notice of proposed registration pursuant to Section 5(a)(i) hereof, the Holder
of the Preferred Stock may exercise its rights of conversion and
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elect to register the Common Stock received pursuant to such conversion and the
Company shall take all steps reasonably appropriate herewith in order to insure
that the Holder's rights to convert and register are protected.
4. REQUESTED REGISTRATION.
(A) REQUEST FOR REGISTRATION. Not later than the earlier of the third (3rd)
anniversary of the closing of the Purchase Agreement or six (6) months after a
Qualifying IPO, the Initiating Holders shall be entitled to three demand
registrations of their Registrable Securities, provided that each Holder is only
entitled to one such request by providing a written request that the Company
effect a registration under the Securities Act with respect to not less than
thirty percent (30%) of the Registrable Securities; provided, however, that the
registration must be declared or ordered effective to count as the one (1) time
demand registration right. Upon such a request, the Company shall:
(i) promptly give written notice of the proposed registration, qualification or
compliance to all other Holders; and
(ii) as soon as practicable, use its commercially reasonable best efforts to
effect such registration (including, without limitation, appropriate
qualification under applicable blue sky or other state securities laws and
appropriate compliance with applicable regulations issued under the Securities
Act and any other governmental requirements or regulations) as may be so
requested and as would permit or facilitate the sale and distribution of all or
such portion of such Registrable Securities as are specified in such request,
together with all or such portion of the Registrable Securities of any Holder or
Holders joining in such request as are specified in a written request received
by the Company within sixty (60) days after receipt of such written notice from
the Company;
provided, however, that the Company shall not be obligated to take any action to
effect any such registration, qualification or compliance pursuant to this
Section 4:
(A) Prior to the date that is six (6) months after the
effective date of the Company's first registered
public offering of its stock;
(B) If the Company, within twenty (20) days of the
receipt of the request from the Initiating
Holders, gives notice of its bona fide intention
to effect the filing of a registration statement
with the Commission within one hundred twenty
(120) days of the receipt of such request (other
than with respect to a registration statement
relating to a Rule 145 transaction, an offering
solely to employees or any other registration
which is not appropriate for the registration of
Registrable Securities);
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(C) With respect to a Qualifying IPO, during the
period starting with the date sixty (60) days
prior to the Company's estimated date of filing
and ending on the date six (6) months immediately
following the effective date of the Company's
Qualifying IPO. With respect to any other public
offering, during the period starting with the date
sixty (60) days prior to the Company's estimated
date of filing and ending on the date three (3)
months immediately following the effective date of
any registration statement pertaining to
securities of the Company (other than a
registration of securities in a Rule 145
transaction or with respect to an employee benefit
plan); provided that the Company is actively
employing in good faith all commercially
reasonable efforts to cause such registration
statement to become effective;
(D) If the anticipated aggregate offering price of the
Registrable Securities, net of underwriting
discounts and commissions, does not exceed Three
Million Dollars ($3,000,000); or
(E) If the Company shall furnish to such Holders a
certificate signed by the President of the Company
stating that in the good faith judgment of the
Board of Directors of the Company it would be
seriously detrimental to the Company or its
shareholders for a registration statement to be
filed in the near future, in which case the
Company's obligation to use its commercially
reasonable best efforts to register, qualify or
comply under this Section 4 shall be deferred for
a period not to exceed one hundred twenty (120)
days from the date of receipt of the written
request from the Initiating Holders, provided that
the right to delay such request shall be exercised
by the Company not more than once in any twelve
(12) month period.
Subject to the foregoing clauses (A) through (E), the Company shall use
its commercially reasonable best efforts to file a registration statement
covering the Registrable Securities so requested to be registered as soon as
practicable after receipt of the request or requests of the Initiating Holders.
(B) UNDERWRITING. In the event that a registration pursuant to this Section 4 is
for a registered public offering involving an underwriting, the Company shall so
advise the Holders as part of the notice given pursuant to Section 4(a)(i). In
such event, the right of any Holder to registration pursuant to this Section 4
shall be conditioned upon such Holder's participation in the underwriting
arrangements required by this Section 4, and the inclusion of such Holder's
Registrable Securities in the underwriting to the extent requested shall be
limited as provided herein.
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The Company shall (together with all Holders proposing to distribute their
securities through such underwriting) enter into an underwriting agreement in
customary form with the managing underwriter(s) selected for such underwriting
by a majority in interest of the Initiating Holders, but subject to the
Company's reasonable approval. Notwithstanding any other provision of this
Section 4, if the managing underwriter(s) advise(s) the Initiating Holders or
the Company in writing that marketing factors require a limitation of the number
of shares to be underwritten, then the Company shall so advise all Holders
participating and the number of shares of Registrable Securities that may be
included in the registration and underwriting shall be allocated among all
Holders thereof in proportion, as nearly as practicable, to the respective
amounts of Registrable Securities held by such Holders at the time of filing the
registration statement. No Registrable Securities excluded from the underwriting
by reason of the underwriters' marketing limitation shall be included in such
registration. To facilitate the allocation of shares in accordance with the
above provisions, the Company or the underwriters may round the number of shares
allocated to any Holder to the nearest one-hundred (100) shares. Upon the
request of the managing underwriter(s), the Holders shall not effect any sale or
distribution of any equity securities of the Company during the six (6) months
after such registration has become effective.
If any Holder disapproves of the terms of the underwriting, such person
may elect to withdraw therefrom by written notice to the Company, the managing
underwriter and the Initiating Holders. The Registrable Securities so withdrawn
shall also be withdrawn from registration, and such Registrable Securities shall
not be transferred in a public distribution prior to ninety (90) days after the
effective date of such registration, or such other shorter period of time as the
underwriters may require. The Company may include shares of Common Stock held by
shareholders other than Holders in a registration statement pursuant to Section
4 or 5 if, and to the extent that, the amount of Registrable Securities
otherwise includible in such registration statement would not thereby be
diminished.
5. COMPANY REGISTRATION.
(A) NOTICE OF REGISTRATION. If at any time or from time to time the Company
shall determine to register any of its securities, either for its own account or
for the account of a security holder or holders, other than (1) a registration
relating solely to employee benefit plans; (2) a registration relating solely to
a Commission Rule 145 transaction; or (3) any other registration which is not
appropriate for the registration for the Registrable Securities for sale to the
public, then the Company will:
(i) promptly give to each Holder written notice thereof; and
(ii) include in such registration (and any related qualification under blue sky
laws or other compliance), and in any underwriting involved therein, all the
Registrable Securities specified in written request or requests, made within
twenty (20) days after receipt of such written notice from the Company, by any
Holder.
(B) UNDERWRITING. If the registration of which the Company gives notice is for a
registered public offering involving an underwriting, the Company shall so
advise the Holders as a part of the written notice given pursuant to Section
5(a)(i). In such event the right of any Holder to
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registration pursuant to this Section 5 shall be conditioned upon such Holder's
participation in such underwriting and the inclusion of such Holder's
Registrable Securities in the underwriting to the extent provided herein. All
Holders proposing to distribute their securities through such underwriting shall
(together with the Company and any other shareholders distributing their
securities through such underwriting) enter into an underwriting agreement in
customary form with the managing underwriter selected for such underwriting by
the Company. Notwithstanding any other provision of this Section 5, if the
managing underwriter determines that marketing factors require a limitation of
the number of shares to be underwritten, the managing underwriter may limit the
Registrable Securities that may be included in the registration and the number
of shares of Registrable Securities that may be included in the registration
shall be allocated among all Holders in proportion, as nearly as practicable, to
the respective amounts of Registrable Securities held by such Holders at the
time of filing the registration statement. To facilitate the allocation of
shares in accordance with the above provisions, the Company may round the number
of shares allocated to any Holder or other shareholder to the nearest one
hundred (100) shares. If any Holder or other shareholder disapproves of the
terms of any such underwriting, such Holder or other shareholder may elect to
withdraw therefrom by written notice to the Company and the managing
underwriter. Any securities excluded or withdrawn from such underwriting shall
be withdrawn from such registration, and shall not be transferred in a public
distribution prior to ninety (90) days after the effective date of the
registration statement relating thereto, or such other shorter period of time as
the underwriters may require. The Company may include shares of Common Stock
held by shareholders other than Holders in a registration statement pursuant to
Section 4 or 5 if, and to the extent that, the amount of Registrable Securities
otherwise includible in such registration statement would not thereby be
diminished.
(C) RIGHT TO TERMINATE REGISTRATION. The Company shall have the right to
terminate or withdraw any registration initiated by it under this Section 5
prior to the effectiveness of such registration whether or not any Holder has
elected to include securities in such registration.
6. LIMITATIONS ON SUBSEQUENT REGISTRATION RIGHTS. The Company shall not enter
into any agreement granting any holder or prospective holder of any securities
of the Company registration rights with respect to such securities unless (a)
such rights are subordinate to or on parity with the rights of the Investors and
Shareholders contained in this Agreement, or (b) are approved by the Majority
Holders, which approval shall not be unreasonably withheld or delayed.
7. EXPENSES OF REGISTRATION. All Registration Expenses incurred in connection
with a registration pursuant to Section 4 or Section 5, including the fees for
one special counsel attorney for the selling shareholders, shall be borne by the
Company. Unless otherwise stated, all Selling Expenses relating to securities
registered on behalf of the Holders and any other shareholders of the Company
shall be borne by the Holders of such securities and such other shareholders pro
rata on the basis of the number of shares so registered.
8. REGISTRATION PROCEDURES. In the case of each registration, qualification or
compliance effected by the Company pursuant to this Agreement, the Company will
keep each Holder advised in writing as to the initiation of each registration,
qualification and compliance and as to the completion thereof. At its expense
the Company shall:
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(a) Keep such registration, qualification or compliance pursuant to this
Agreement effective for a period of six (6) months or until the Holder or
Holders have completed the distribution described in the Registration Statement
relating thereto, whichever occurs first; and
(b) Furnish such number of Prospectuses and such other documents incident
thereto as the Holder from time to time may reasonably request.
9. INFORMATION BY HOLDER. The Holder or Holders of Registrable Securities
included in any registration shall promptly furnish the Company such information
regarding such Holder or Holders, the Registrable Securities held by them and
the distribution proposed by such Holder or Holders as the Company may request
in writing and as shall be required in connection with any registration,
qualification or compliance referred to in this Agreement.
10. INDEMNIFICATION.
(a) The Company will indemnify each Holder, each of its officers, directors and
partners, and each person controlling such Holder within the meaning of Section
15 of the Securities Act, with respect to which registration, qualification or
compliance has been effected pursuant to this Agreement, and each underwriter,
if any, and each person who controls any underwriter within the meaning of
Section 15 of the Securities Act, against all expenses, claims, losses, damages
or liabilities (or actions in respect thereof), including any of the foregoing
incurred in settlement of any litigation, commenced or threatened, arising out
of or based on any untrue statement (or alleged untrue statement) made by the
Company of a material fact contained in any registration statement, prospectus,
offering circular or other document, or any amendment or supplement thereto,
incident to any such registration, qualification or compliance, or based on any
omission (or alleged omission) made by the Company to state therein a material
fact required to be stated therein or necessary to make the statements therein,
in light of the circumstances in which they were made, not misleading, or any
violation by the Company of the Securities Act or any rule or regulation
promulgated under the Securities Act applicable to the Company in connection
with any such registration, qualification or compliance, and the Company will
reimburse each such Holder, each of its officers and directors, and each person
controlling such Holder, each such underwriter and each person who controls any
such underwriter, for any legal and any other expenses reasonably incurred in
connection with investigating, preparing or defending any such claim, loss,
damage, liability or action; provided that the Company will not be liable in any
such case to the extent that any such claim, loss, damage, liability or expense
arises out of or is based on any untrue statement or omission or alleged untrue
statement or omission, made in reliance upon and in conformity with written
information furnished to the Company by an instrument duly executed by such
Holder, controlling person or underwriter and stated to be specifically for use
therein.
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(b) Each Holder will, if Registrable Securities held by such Holder are included
in the securities as to which such registration, qualification or compliance is
being effected, indemnify the Company, each of its directors and officers, each
underwriter, if any, of the Company's securities covered by such a registration
statement, each person who controls the Company or such underwriter within the
meaning of Section 15 of the Securities Act, and each other such Holder, each of
its officers and directors and each person controlling such Holder within the
meaning of Section 15 of the Securities Act, against all claims, losses, damages
and liabilities (or action in respect thereof) arising out of or based on (i)
any untrue statement (or alleged untrue statement) of a material fact contained
in any such registration statement, prospectus, offering circular or other
document, or any omission (or alleged omission) to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, and will reimburse the Company, such Holders, such directors,
officers, persons, underwriters or control persons for any legal or any other
expenses reasonably incurred in connection with investigating or defending any
such claim, loss, damage, liability or action, in each case to the extent, but
only to the extent, that such untrue statement (or alleged untrue statement) or
omission (or alleged omission) is made in such registration statement,
prospectus, offering circular or other document in reliance upon and in
conformity with written information furnished to the Company by an instrument
duly executed by such Holder and stated to be specifically for use therein; or
(ii) any violation by such Holder of the Securities Act or any rule or
regulation promulgated under the Securities Act applicable to Holder in
connection with any such registration, qualification or compliance.
Notwithstanding the foregoing, the liability of each Holder under this
subsection (b) shall be limited to an amount equal to the initial public
offering price of the shares sold by such Holder, unless such liability arises
out of or is based on willful conduct by such Holder.
(c) Each party entitled to indemnification under this Section 10 (the
"Indemnified Party") shall give notice to the party required to provide
indemnification (the "Indemnifying Party") promptly after such Indemnified Party
has actual knowledge of any claim as to which indemnity may be sought, and shall
permit the Indemnifying Party to assume the defense or settlement of any such
claim or any litigation resulting therefrom; provided that counsel for the
Indemnifying Party, who shall conduct the defense of such claim or litigation,
shall be approved by the Indemnified Party (whose approval shall not
unreasonably be withheld or delayed), and the Indemnified Party may participate
in such defense at such party's expense, and provided further that the failure
of any Indemnified Party to give notice as provided herein shall not relieve the
Indemnifying Party of its obligations under this Agreement unless the failure to
give such notice is materially prejudicial to an Indemnifying Party's ability to
defend or settle such action and provided further, that the Indemnifying Party
shall not assume the defense for matters as to which there is a conflict of
interest or separate and different defenses. No Indemnifying Party, in the
defense of any such claim or litigation, shall, except with the consent of each
Indemnified Party, consent to entry of any judgment or enter into any settlement
which does not include as an unconditional term thereof the giving by the
claimant or plaintiff to such Indemnified Party of a release from all liability
in respect to such claim or litigation.
11. TRANSFER OF REGISTRATION RIGHTS. The rights to cause the Company to register
securities granted under this Agreement may be assigned or transferred at any
time without the prior written consent of the Company but with prior notice to
Company to a transferee or assignee in connection with any transfer or
assignment of Registrable Securities by the Investor or
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Shareholders; provided that such transferee or assignee (a) is a partner or
retired partner of the Investor or Shareholders that is a partnership; (b) is an
immediate family member or trust for the benefit of the Investor or
Shareholders; or (c) any subsidiary of the Investor or Shareholders which is a
corporation. In addition to the foregoing, such rights may be assigned to any
other transferee or assignee with the written consent of the Company, which
consent shall not be unreasonably delayed or withheld, in connection with any
permitted transfer or assignment of Registrable Securities by an Investor or the
Shareholders; provided that such transfer may otherwise be effected in
accordance with applicable securities laws.
12. TERMINATION OF REGISTRATION RIGHTS. All rights conferred in this Agreement
to the Investor, TWS and Stanford shall terminate for such party at such time as
the party owns securities constituting less than 5% of the outstanding voting
stock of the Company and when all shares held by the party (or its assignee) may
be sold under Rule 144 promulgated under the Securities Act within a ninety (90)
day period.
13. AMENDMENTS AND WAIVERS. This Agreement may be amended, or any provision
herein waived, only with the prior written consent of all parties to this
Agreement who may be adversely affected by such amendment or waiver, and their
permitted successors and assigns. Any such permitted successors and assigns,
upon execution of appropriate documentation as determined by the Company, shall
be deemed to be an "Investor" hereunder and shall have the same (but not
superior) rights and the same obligations under this Agreement as each other
Investor and the capital stock held by such other Investor shall be deemed to be
Registrable Securities.
14. NOTICES. All notices, demands or other communications hereunder shall be in
writing and shall be deemed given when delivered personally, mailed by certified
mail (return receipt requested), sent by overnight courier service or telecopied
(transmission confirmed), or otherwise actually delivered:
If to the Company Blue Sky Communications, Inc.
or TWS: ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Chief Executive
Officer
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
With copies to: Blue Sky Communications, Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, General Counsel
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
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If to the Investor: interWAVE Communications International, Ltd.
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇
▇▇▇▇▇▇▇▇, Bermuda
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Executive Vice
President and Chief
Financial Officer
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
With copies to: Interwave Communications, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇, Vice President and
General Counsel
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
If to Stanford: Stanford Financial Group Company
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇, Chief Financial
Officer
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
With copies to: Stanford Financial Group Company
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Chief of Staff
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
and: ▇▇▇▇▇▇▇▇▇ Traurig
▇▇▇▇▇▇▇ ▇▇▇▇▇, Esq.
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
or at such other address and numbers as may have been furnished by such person
in writing to the Company, Investor or Shareholders.
15. ASSIGNMENT. This Agreement shall be binding upon and inure to the benefit of
and be enforceable by the parties hereto and their respective successors and
assigns.
16. DESCRIPTIVE HEADINGS. The descriptive headings of the several sections and
paragraphs of this Agreement are inserted for reference only and shall not limit
or otherwise affect the meaning hereof.
17. COUNTERPARTS. This Agreement may be executed simultaneously in any number of
counterparts, each of which shall be deemed an original, but all such
counterparts together shall constitute one and the same instrument.
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18. SEVERABILITY. In the event that any one or more of the provisions contained
herein, or the application thereof in any circumstances, is held invalid,
illegal or unenforceable in any respect for any reason, the validity, legality
and enforceability of any such provision in every other respect and of the
remaining provisions contained herein shall not be in any way impaired thereby,
it being intended that all of the rights and privileges of the holders of
Registrable Securities shall be enforceable to the fullest extent permitted by
law.
19. GOVERNING LAW; ARBITRATION; VENUE; EQUITABLE RELIEF.
(a) GOVERNING LAW. This Agreement will be governed by and construed and enforced
in accordance with the laws of the State of Georgia, without regard to
principles of conflicts of laws. All disputes, claims, and controversies
concerning the interpretation or enforcement of this Agreement, or any other
matter arising out of or relating to this Agreement, will be arbitrated pursuant
to the provisions of this Section 20.
(b) INITIATION OF ARBITRATION PROCEEDING. Any party may initiate an arbitration
proceeding by making a written demand for arbitration and serving a notice of
said demand upon the adverse party in the manner provided in this Agreement, and
upon the San Francisco regional office of J A M S ("JAMS"). A written response
to the demand must be served upon the initiating party and JAMS within ten (10)
days of the adverse party's receipt of the demand.
(c) SELECTION OF ARBITRATOR. The arbitration will be conducted by a single
arbitrator who is a retired judge associated with the San Francisco regional
office of JAMS. The arbitrator will be selected in accordance with the JAMS
Rules of Practice & Procedure for Arbitration then in effect (the "JAMS Rules")
within fourteen (14) days of the service of the written demand for arbitration.
If the parties cannot so agree upon the selection of the arbitrator within the
fourteen (14) day period, then the arbitration will be conducted by a single
arbitrator who will be a retired judge associated with the San Francisco
regional office of JAMS, and who will be selected by JAMS within five (5) days
of the service of a written request that JAMS select the arbitrator.
(d) VENUE. Any arbitration proceeding instituted under the provisions of this
Agreement will be conducted in San Francisco through the San Francisco regional
office of JAMS.
(e) ARBITRATION HEARING AND AWARD. The arbitration hearing will be conducted
within thirty (30) days of the appointment of the arbitrator. The arbitration
will be conducted in accordance with the JAMS Rules. The arbitrator's award will
be conclusive and binding on all parties. The arbitrator's award will provide,
among other things, that the prevailing party in the arbitration is entitled to
recover from the adverse party its costs and expenses incurred in connection
therewith including, without limitation, attorneys' fees as determined by the
arbitrator, the costs of the arbitration, and actual out-of-pocket expenses
including, without limitation, expert witness and consultants' fees. Judgment
upon the arbitrator's award may be entered in any court of competent
jurisdiction.
(f) EQUITABLE RELIEF. The Arbitrator has the authority to grant equitable relief
on such terms and conditions as it deems reasonably necessary or appropriate.
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20. NO IMPAIRMENT. Nothing in this Agreement shall impair or otherwise adversely
affect the rights accorded TWS and Stanford in that Shareholders Rights
Agreement dated as of March 15, 2000 between the Company, Stanford and TWS.
[SIGNATURES ON FOLLOWING PAGES]
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IN WITNESS WHEREOF, the parties hereto have duly executed this
Registration Rights Agreement as of the date first above written.
"COMPANY"
BLUE SKY COMMUNICATIONS, INC.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
-----------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇
Chief Executive Officer
"INVESTOR"
INTERWAVE COMMUNICATIONS
INTERNATIONAL, LTD.
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇▇
-----------------------------------
▇▇▇▇▇▇▇▇▇ ▇▇
Chief Executive Officer
"TWS"
TELECOM WIRELESS SOLUTIONS, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Chief Executive Officer
"STANFORD"
STANFORD FINANCIAL GROUP COMPANY
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Chief Financial Officer
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