EXHIBIT 4.3
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EXECUTION VERSION
REGISTRATION RIGHTS AGREEMENT,
dated as of July 17, 2006 (the "Agreement")
among NEXTWAVE WIRELESS INC., a Delaware
corporation (including any successor
thereto, whether by merger, consolidation,
conversion or otherwise, the "Company") and
the Purchasers listed on Schedule I hereto.
The Purchasers own or have the right to acquire LLC Units (as hereinafter
defined) of NextWave Wireless LLC ("NW LLC") or Warrants (as hereinafter
defined) to acquire shares of Common Stock (as hereinafter defined) of the
Company, as the case may be, pursuant to the terms of the Purchase Agreement (as
hereinafter defined). The Company and the Investors deem it to be in their
respective best interests to set forth their rights in connection with public
offerings and sales of shares of Common Stock and are entering into this
Registration Rights Agreement as a condition to and in connection with the
Investors entering into the Purchase Agreement. In the event that NW LLC shall
become obligated to issue LLC Units pursuant to Section 1.2(e) of the Purchase
Agreement, it shall assume all obligations of the Company hereunder.
NOW, THEREFORE, in consideration of the premises and mutual covenants and
obligations hereinafter set forth, the Company and the Investors hereby agree as
follows:
SECTION 1. Certain Definitions. For purposes of this Registration Rights
Agreement, the following terms shall have the following respective meanings:
"Commission" shall mean the United States Securities and Exchange
Commission, or any other federal agency at the time administering the Exchange
Act or the Securities Act, whichever is the relevant statute for the particular
purpose.
"Common Stock" has the meaning ascribed to such term in the Purchase
Agreement.
"Effective Time," means the time and date as of which the Commission
declares the Shelf Registration Statement effective or as of which the Shelf
Registration Statement otherwise becomes effective.
"Electing Holder" shall mean each Purchaser and any holder of Registrable
Securities that has returned a completed and signed Notice and Questionnaire to
the Company in accordance with Section 3(a)(ii) or 3(a)(iii) hereof and the
instructions set forth on the Notice and Questionnaire.
"Exchange Act" shall mean the Securities Exchange Act of 1934, or any
successor thereto, as the same shall be amended from time to time.
The term "holder" shall mean each of the Purchasers and other persons who
acquire Registrable Securities from time to time (including any successors or
assigns), in each case for so long as such person owns any Registrable
Securities.
"LLC Units" has the meaning ascribed to such term in the Purchase
Agreement.
"Notice and Questionnaire" means a Notice of Registration Statement and
Selling Securityholder Questionnaire substantially in the form of Exhibit A
hereto.
The term "person" shall mean a corporation, association, partnership,
organization, limited liability company, limited partnership, limited liability
partnership, or other similar entity, individual, government or political
subdivision thereof or governmental agency.
"Purchase Agreement" means that certain Purchase Agreement, dated as of
the date hereof, among NW LLC, each Guarantor (as therein defined) from time to
time party thereto, and the Purchasers, as may be amended, modified or
supplemented from time to time.
"Purchasers" shall mean the Purchasers named in Schedule II to the
Purchase Agreement.
"Registrable Securities" shall mean the Securities; provided, however,
that a Security shall cease to be a Registrable Security upon the earliest to
occur of the following: (i) a Shelf Registration Statement registering such
Security under the Securities Act has been declared or becomes effective and
such Security has been sold or otherwise transferred by the holder thereof
pursuant to and in a manner contemplated by such effective Shelf Registration
Statement; (ii) such Security is sold pursuant to Rule 144 under circumstances
in which any legend borne by such Security relating to restrictions on
transferability thereof, under the Securities Act or otherwise, is removed by
the Company; (iii) such Security is eligible to be sold pursuant to paragraph
(k) of Rule 144; or (iv) such Security shall cease to be outstanding.
"Registration Expenses" shall have the meaning assigned thereto in Section
4 hereof.
"Rule 144," "Rule 405" and "Rule 415" shall mean, in each case, such rule
promulgated under the Securities Act (or any successor provision), as the same
shall be amended from time to time.
"Securities" means collectively, the Common Stock of the Company, as the
same may be issued upon exercise of the Warrants.
"Securities Act" shall mean the Securities Act of 1933, or any successor
thereto, as the same shall be amended from time to time.
"Shelf Registration" shall have the meaning assigned thereto in Section
2(b) hereof.
"Shelf Registration Statement" shall have the meaning assigned thereto in
Section 2(b) hereof.
"Warrants" has the meaning ascribed to such term in the Purchase
Agreement.
Unless the context otherwise requires, any reference herein to a "Section"
or "clause" refers to a Section or clause, as the case may be, of this
Registration Rights Agreement, and the words "herein," "hereof" and "hereunder"
and other words of similar import refer to this Registration Rights Agreement as
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a whole and not to any particular Section or other subdivision. Capitalized
terms used herein but not defined herein shall have the meaning assigned to such
terms in the Purchase Agreement.
SECTION 2. Registration Under the Securities Act.
(a) The Company shall file under the Securities Act as soon as
practicable, but no later than 30 days after the Conversion Date, or if NW LLC
shall have assumed this Agreement, no later than 120 days following the Closing
Date, a "shelf" registration statement providing for the registration of, and
the sale on a continuous or delayed basis by the holders of, all of the
Registrable Securities, pursuant to Rule 415 or any similar rule that may be
adopted by the Commission (such filing, the "Shelf Registration" and such
registration statement, the "Shelf Registration Statement"). The Company agrees
to use all commercially reasonable efforts (x) to cause the Shelf Registration
Statement to become or be declared effective no later than 60 days after the
applicable Shelf Registration Statement filing deadline described above and,
subject to Section 3(d), to keep such Shelf Registration Statement continuously
effective for a period ending on the earlier of the second anniversary of the
Effective Time or such time as there are no longer any Registrable Securities
outstanding, provided, however, that no holder shall be entitled to be named as
a selling securityholder in the Shelf Registration Statement or to use the
prospectus forming a part thereof for resales of Registrable Securities unless
such holder is an Electing Holder, and (y) after the Effective Time of the Shelf
Registration Statement, promptly upon the request of any holder of Registrable
Securities that is not then an Electing Holder, to take any action reasonably
necessary to enable such holder to use the prospectus forming a part thereof for
resales of Registrable Securities, including, without limitation, any action
necessary to identify such holder as a selling securityholder in the Shelf
Registration Statement, provided, however, that nothing in this Clause (y) shall
relieve any such holder of the obligation to return a completed and signed
Notice and Questionnaire to the Company in accordance with Section 3(a)(iii)
hereof; provided further that each holder shall promptly furnish additional
information required to be disclosed in order to make information previously
furnished to the Company by such holder not misleading. The Company further
agrees to supplement or make amendments to the Shelf Registration Statement,
including without limitation, any post effective amendments, as and when
required by the rules, regulations or instructions applicable to the
registration form used by the Company for such Shelf Registration Statement or
by the Securities Act or rules and regulations thereunder for shelf
registration.
(b) The Company shall use all commercially reasonable efforts to
take all actions necessary or advisable to be taken by it to ensure that the
transactions contemplated herein are effected as so contemplated in Section 2(a)
hereof, and to submit to the Commission, within two business days after the
Company learns that no review of the Shelf Registration Statement will be made
by the staff of the Commission or that the staff has no further comments on the
Shelf Registration Statement, as the case may be, a request for acceleration of
effectiveness (or post effective amendment, if applicable) of the Shelf
Registration Statement to a time and date not later than 48 hours after the
submission of such request.
(c) Any reference herein to a registration statement or prospectus
as of any time shall be deemed to include any document incorporated, or deemed
to be incorporated, therein by reference as of such time and any reference
herein to any post-effective amendment to a registration statement as of any
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time shall be deemed to include any document incorporated, or deemed to be
incorporated, therein by reference as of such time. Any reference to a
prospectus as of any time shall include any supplement thereto, preliminary
prospectus, or any free writing prospectus in respect thereof.
SECTION 3. Registration Procedures.
The following provisions shall apply to the filing of the Shelf
Registration Statement:
(a) The Company shall:
(i) prepare and file with the Commission, as soon as
practicable but in any case within the time periods specified in Section 2(a), a
Shelf Registration Statement on any form which may be utilized by the Company
and which shall register all of the Registrable Securities for resale by the
holders thereof in accordance with such method or methods of disposition as may
be specified by such of the holders as, from time to time, may be Electing
Holders and use all commercially reasonable efforts to cause such Shelf
Registration Statement to become effective as soon as practicable but in any
case within the time periods specified in Section 2(a);
(ii) not less than 30 calendar days prior to the Effective
Time of the Shelf Registration Statement, mail the Notice and Questionnaire to
the holders of Registrable Securities; no holder shall be entitled to be named
as a selling securityholder in the Shelf Registration Statement as of the
Effective Time, and no holder shall be entitled to use the prospectus forming a
part thereof for resales of Registrable Securities at any time, unless such
holder has returned a completed and signed Notice and Questionnaire to the
Company by the deadline for response set forth therein; provided, however,
holders of Registrable Securities shall have at least 20 calendar days from the
date on which the Notice and Questionnaire is first mailed to such holders to
return a completed and signed Notice and Questionnaire to the Company;
(iii) after the Effective Time of the Shelf Registration
Statement, upon the request of any holder of Registrable Securities that is not
then an Electing Holder, promptly send a Notice and Questionnaire to such
holder; provided that the Company shall not be required to take any action to
name such holder as a selling securityholder in the Shelf Registration Statement
or to enable such holder to use the prospectus forming a part thereof for
resales of Registrable Securities until such holder has returned a completed and
signed Notice and Questionnaire to the Company;
(iv) as soon as practicable prepare and file with the
Commission such amendments and supplements to such Shelf Registration Statement
(including without limitation, any required post effective amendments) and the
prospectus included therein as may be necessary to effect and maintain the
effectiveness of such Shelf Registration Statement for the period specified in
Section 2(a) hereof and as may be required by the applicable rules and
regulations of the Commission and the instructions applicable to the form of
such Shelf Registration Statement, including without limitation, to include any
Electing Holder to be named as a selling security holder therein;
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(v) comply with the provisions of the Securities Act with
respect to the disposition of all of the Registrable Securities covered by such
Shelf Registration Statement in accordance with the intended methods of
disposition by the Electing Holders provided for in such Shelf Registration
Statement;
(vi) provide (A) one representative of the Electing Holders
and (B) not more than one counsel for all the Electing Holders the opportunity
to participate in the preparation of such Shelf Registration Statement, each
prospectus included therein or filed with the Commission and each amendment or
supplement thereto, in each case subject to customary confidentiality
restrictions;
(vii) for a reasonable period prior to the filing of such
Shelf Registration Statement, and throughout the period specified in Section
2(a), make available at reasonable times at the Company's principal place of
business or such other reasonable place for inspection by the persons referred
to in Section 3(a)(vi) who shall certify to the Company that they have a current
intention to sell the Registrable Securities pursuant to the Shelf Registration
such financial and other information and books and records of the Company, and
cause the officers, employees, counsel and independent certified public
accountants of the Company to be available to respond to such inquiries, as
shall be reasonably necessary, in the judgment of the respective counsel
referred to in such Section, to conduct a reasonable investigation within the
meaning of Section 11 of the Securities Act; provided, however, that each such
party shall be required to maintain in confidence and not to disclose to any
other person any information or records reasonably designated by the Company as
being confidential, until such time as (A) such information becomes a matter of
public record (whether by virtue of its inclusion in such registration statement
or otherwise), or (B) such person shall be required so to disclose such
information pursuant to a subpoena or order of any court or other governmental
agency or body having jurisdiction over the matter (provided such person agrees
that it will give notice to the Company and allow the Company, at its expense,
to promptly undertake appropriate action and to prevent disclosure of such
information deemed confidential), or (C) such information is required to be set
forth in such Shelf Registration Statement or the prospectus included therein or
in an amendment to such Shelf Registration Statement or an amendment or
supplement to such prospectus in order that such Shelf Registration Statement,
prospectus, amendment or supplement, as the case may be, complies with
applicable requirements of the federal securities laws and the rules and
regulations of the Commission and does not contain an untrue statement of a
material fact or omit to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading in light of
the circumstances then existing;
(viii) promptly notify each of the Electing Holders, and if
requested by any such Electing Holder, confirm such advice in writing, (A) when
such Shelf Registration Statement or the prospectus included therein or any
prospectus amendment or supplement or post-effective amendment has been filed,
and, with respect to such Shelf Registration Statement or any post-effective
amendment, when the same has become effective, (B) of any comments by the
Commission and by the blue sky or securities commissioner or regulator of any
state with respect thereto or any request by the Commission for amendments or
supplements to such Shelf Registration Statement or prospectus or for additional
information, (C) of the issuance by the Commission of any stop order suspending
the effectiveness of such Shelf Registration Statement or the initiation or
threatening of any proceedings for that purpose, (D) if at any time the
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representations and warranties of the Company contemplated by Section 3(a)(xv)
or Section 5 cease to be true and correct in all material respects, (E) of the
receipt by the Company of any notification with respect to the suspension of the
qualification of the Registrable Securities for sale in any jurisdiction or the
initiation or threatening of any proceeding for such purpose, or (F) if at any
time when a prospectus is required to be delivered under the Securities Act,
that such Shelf Registration Statement, prospectus, prospectus amendment or
supplement or post-effective amendment does not conform in all material respects
to the applicable requirements of the Securities Act and the rules and
regulations of the Commission thereunder or contains an untrue statement of a
material fact or omits to state any material fact required to be stated therein
or necessary to make the statements therein not misleading in light of the
circumstances then existing;
(ix) use all commercially reasonable efforts to obtain the
withdrawal of any order suspending the effectiveness of such registration
statement or any post-effective amendment thereto at the earliest practicable
date;
(x) if requested by any Electing Holder, promptly
incorporate in a prospectus supplement or post-effective amendment such
information as is required by the applicable rules and regulations of the
Commission and as such Electing Holder specifies should be included therein
relating to the terms of the sale of such Registrable Securities, including
information with respect to the amount of Registrable Securities being sold by
such Electing Holder , the name and description of such Electing Holder the
offering price of such Registrable Securities and any compensation payable in
respect thereof, and make all required filings of such prospectus supplement or
post-effective amendment promptly after notification of the matters to be
incorporated in such prospectus supplement or post-effective amendment;
(xi) furnish to each Electing Holder and the respective
counsel referred to in Section 3(a)(vi) a conformed copy of such Shelf
Registration Statement, each such amendment and supplement thereto (in each case
including all exhibits thereto (in the case of an Electing Holder of Registrable
Securities, upon request) and documents incorporated by reference therein) and
such number of copies of such Shelf Registration Statement (excluding exhibits
thereto and documents incorporated by reference therein unless specifically so
requested by such Electing Holder) and of the prospectus included in such Shelf
Registration Statement, in conformity in all material respects with the
applicable requirements of the Securities Act and the rules and regulations of
the Commission thereunder, and such other documents, as such Electing Holder may
reasonably request in order to facilitate the offering and disposition of the
Registrable Securities owned by such Electing Holder and to permit such Electing
Holder to satisfy the prospectus delivery requirements of the Securities Act;
and subject to Section 3(b) below, the Company hereby consents to the use of
such prospectus and any amendment or supplement thereto by each such Electing
Holder , in each case in the form most recently provided to such person by the
Company, in connection with the offering and sale of the Registrable Securities
covered by the prospectus or any supplement or amendment thereto;
(xii) use all commercially reasonable efforts to (A) register
or qualify the Registrable Securities to be included in such Shelf Registration
Statement under such securities laws or blue sky laws of such jurisdictions as
any Electing Holder thereof shall reasonably request, (B) keep such
registrations or qualifications in effect and comply with such laws so as to
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permit the continuance of offers, sales and dealings therein in such
jurisdictions during the period the Shelf Registration is required to remain
effective under Section 2(b) above and for so long as may be necessary to enable
any such Electing Holder to complete its distribution of Securities pursuant to
such Shelf Registration Statement and (C) take any and all other actions as may
be reasonably necessary to enable each such Electing Holder to consummate the
disposition in such jurisdictions of such Registrable Securities; provided,
however, that the Company shall not be required for any such purpose to (1)
qualify as a foreign corporation in any jurisdiction wherein it would not
otherwise be required to qualify but for the requirements of this Section
3(a)(xii), (2) consent to general service of process in any such jurisdiction or
become subject to taxation in any such jurisdiction or (3) make any changes to
its articles of incorporation or by-laws or other governing documents or any
agreement between it and its stockholders;
(xiii) use all commercially reasonable efforts to obtain the
consent or approval of each governmental agency or authority, whether federal,
state or local, which may be required to effect the Shelf Registration or the
offering or sale in connection therewith or to enable the selling holder or
holders to offer, or to consummate the disposition of, their Registrable
Securities;
(xiv) unless any Registrable Securities shall be in book-entry
only form, cooperate with the Electing Holders to facilitate the timely
preparation and delivery of certificates representing Registrable Securities to
be sold, which certificates, if so required by any securities exchange upon
which any Registrable Securities are listed, shall be penned, lithographed or
engraved, or produced by any combination of such methods, on steel engraved
borders, and which certificates shall not bear any restrictive legends;
(xv) notify in writing each holder of Registrable Securities
of any proposal by the Company to amend or waive any provision of this
Registration Rights Agreement pursuant to Section 8(h) hereof and of any
amendment or waiver effected pursuant thereto, each of which notices shall
contain the text of the amendment or waiver proposed or effected, as the case
may be; and
(xvi) comply with all applicable rules and regulations of the
Commission, and make generally available to its securityholders as soon as
practicable but in any event not later than eighteen months after the effective
date of such Shelf Registration Statement, an earning statement of the Company
and its subsidiaries complying with Section 11(a) of the Securities Act
(including, at the option of the Company, Rule 158 thereunder).
(b) In the event that the Company would be required, pursuant to
Section 3(a)(vii)(F) above, to notify the Electing Holders the Company shall
promptly prepare and furnish to each of the Electing Holders a reasonable number
of copies of a prospectus supplemented or amended so that, as thereafter
delivered to purchasers of Registrable Securities, such prospectus shall conform
in all material respects to the applicable requirements of the Securities Act
and the rules and regulations of the Commission thereunder and shall not contain
an untrue statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein not misleading
in light of the circumstances then existing. Each Electing Holder agrees that
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upon receipt of any notice from the Company pursuant to Section 3(a)(vii)(F)
hereof, such Electing Holder shall forthwith discontinue the disposition of
Registrable Securities pursuant to the Shelf Registration Statement applicable
to such Registrable Securities until such Electing Holder shall have received
copies of such amended or supplemented prospectus, and if so directed by the
Company, such Electing Holder shall deliver to the Company (at the Company's
expense) all copies, other than permanent file copies, then in such Electing
Holder's possession of the prospectus covering such Registrable Securities at
the time of receipt of such notice.
(c) In the event of a Shelf Registration, in addition to the
information required to be provided by each Electing Holder in its Notice and
Questionnaire, the Company may require such Electing Holder to furnish to the
Company such additional information regarding such Electing Holder and such
Electing Holder's intended method of distribution of Registrable Securities as
may be required in order to comply with the Securities Act. Each such Electing
Holder agrees to notify the Company as promptly as practicable of any inaccuracy
or change in information previously furnished by such Electing Holder to the
Company or of the occurrence of any event in either case as a result of which
any prospectus relating to such Shelf Registration contains or would contain an
untrue statement of a material fact regarding such Electing Holder or such
Electing Holder's intended method of disposition of such Registrable Securities
or omits to state any material fact regarding such Electing Holder or such
Electing Holder's intended method of disposition of such Registrable Securities
required to be stated therein or necessary to make the statements therein not
misleading in light of the circumstances then existing, and promptly to furnish
to the Company any additional information required to correct and update any
previously furnished information or required so that such prospectus shall not
contain, with respect to such Electing Holder or the disposition of such
Registrable Securities, an untrue statement of a material fact or omit to state
a material fact required to be stated therein or necessary to make the
statements therein not misleading in light of the circumstances then existing.
(d) Notwithstanding any other provision of this Agreement, the
Company may for valid business reasons (other than avoidance of its obligations
hereunder), including without limitation, a potential material acquisition,
divestiture of assets or other material corporate transaction, notify holders of
Registrable Securities in writing that the Shelf Registration Statement is no
longer effective or the prospectus included therein is no longer usable for
offers and sales of Securities for a period not to exceed: (i) 30 consecutive
days at any one time, (ii) 45 days in any three month period or (iii) 90 days in
the aggregate during any twelve-month period; provided, that the Company
promptly thereafter complies with the requirements of Section 2(b) hereof, if
applicable, and provided further that, if a post effective amendment is required
by applicable law to be filed with the Commission to cause a Holder to be named
as a selling security holder in the Shelf Registration Statement, the period of
time between the filing and the effectiveness of any such post effective
amendment shall be not deemed to be a Suspension Period hereunder. The first day
of any Suspension Period must be at least two trading days after the last day of
any prior Suspension Period. Each holder agrees that upon receipt of any notice
from the Company pursuant to this Section 3(d), it will discontinue use of the
prospectus contained in the Shelf Registration Statement until receipt of copies
of the supplemented or amended prospectus relating thereto or until advised in
writing by the Company that the use of the prospectus contained in the Shelf
Registration Statement may be resumed (any such period, a "Suspension Period"),
provided, however, that the provisions of this Section 3(d) shall not prevent
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the occurrence of an Event of Default pursuant to Section 6.1 (n) of the
Purchase Agreement.
SECTION 4. Registration Expenses.
The Company agrees to bear and to pay or cause to be paid promptly all
expenses incident to the Company's performance of or compliance with this
Registration Rights Agreement, including (a) all Commission and any NASD
registration, filing and review fees and expenses (b) all fees and expenses in
connection with the qualification of the Securities for offering and sale under
the State securities and blue sky laws referred to in Section 3(a)(xii) hereof
and determination of their eligibility for investment under the laws of such
jurisdictions as or the Electing Holders may designate, including reasonable
fees and disbursements of not more than one counsel for the Electing Holders in
connection with such qualification and determination, (c) all expenses relating
to the preparation, printing, production, distribution and reproduction of each
registration statement required to be filed hereunder, each prospectus included
therein or prepared for distribution pursuant hereto, each amendment or
supplement to the foregoing, the expenses of preparing the Securities for
delivery and the expenses of printing or producing blue sky memoranda and all
other documents in connection with the offering, sale or delivery of Securities
to be disposed of (including certificates representing the Securities), (d)
messenger, telephone and delivery expenses relating to the offering, sale or
delivery of Securities and the preparation of documents referred in clause (c)
above, (e) internal expenses (including all salaries and expenses of the
Company's officers and employees performing legal or accounting duties), (f)
fees, disbursements and expenses of counsel and independent certified public
accountants of the Company (including the expenses of any opinions or "cold
comfort" letters required by or incident to such performance and compliance),
(g) reasonable fees, disbursements and expenses of one counsel for the Electing
Holders retained in connection with a Shelf Registration, as selected by the
Electing Holders of at least a majority in aggregate principal amount of the
Registrable Securities held by Electing Holders (which counsel shall be
reasonably satisfactory to the Company), and (h) fees, expenses and
disbursements of any other persons, including special experts, retained by the
Company in connection with such registration (collectively, the "Registration
Expenses"). To the extent that any Registration Expenses are incurred, assumed
or paid by any holder of Registrable Securities or any placement or sales agent
therefor or underwriter thereof, the Company shall reimburse such person for the
full amount of the Registration Expenses so incurred, assumed or paid promptly
after receipt of a request therefor. Notwithstanding the foregoing, the holders
of the Registrable Securities being registered shall pay all agency fees and
commissions and underwriting discounts and commissions attributable to the sale
of such Registrable Securities and the fees and disbursements of any counsel or
other advisors or experts retained by such holders (severally or jointly), other
than the counsel and experts specifically referred to above.
SECTION 5. Representations and Warranties.
The Company represents and warrants to, and agrees with, each Purchaser
and each of the holders from time to time of Registrable Securities that:
(a) Each registration statement covering Registrable Securities
and each prospectus (including any preliminary or summary prospectus) contained
therein or furnished pursuant to Section 3(d) or Section 3(c) hereof and any
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further amendments or supplements to any such registration statement or
prospectus, when it becomes effective or is filed with the Commission, as the
case may be, will conform in all material respects to the requirements of the
Securities Act and the rules and regulations of the Commission thereunder and
will not contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading; and at all times subsequent to the Effective Time when a
prospectus would be required to be delivered under the Securities Act, other
than from (i) such time as a notice has been given to holders of Registrable
Securities pursuant to Section 3(a)(viii)(F) hereof until (ii) such time as the
Company furnishes an amended or supplemented prospectus pursuant to Section 3(b)
hereof, each such registration statement, and each prospectus contained therein
or furnished pursuant to Section 3(a) hereof, as then amended or supplemented,
will conform in all material respects to the requirements of the Securities Act
and the rules and regulations of the Commission thereunder and will not contain
an untrue statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein not misleading
in the light of the circumstances then existing; provided, however, that this
representation and warranty shall not apply to any statements or omissions made
in reliance upon and in conformity with information furnished in writing to the
Company by a holder of Registrable Securities expressly for use therein.
(b) Any documents incorporated by reference in any prospectus
referred to in Section 5(a) hereof, when they become or became effective or are
or were filed with the Commission, as the case may be, will conform or conformed
in all material respects to the requirements of the Securities Act or the
Exchange Act, as applicable, and none of such documents will contain or
contained an untrue statement of a material fact or will omit or omitted to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading; provided, however, that this representation
and warranty shall not apply to any statements or omissions made in reliance
upon and in conformity with information furnished in writing to the Company by a
holder of Registrable Securities expressly for use therein.
(c) The compliance by the Company with all of the provisions of
this Registration Rights Agreement and the consummation of the transactions
herein contemplated will not (i) conflict with or result in a breach or
violation of any of the terms or provisions of, or constitute a default under,
any indenture, mortgage, deed of trust, loan agreement or other agreement or
instrument to which the Company or any of its subsidiaries is a party or by
which the Company or any of its subsidiaries is bound or to which any of the
property or assets of the Company or any of its subsidiaries is subject, (ii)
result in any violation of the provisions of the articles of incorporation or
organization or the by-laws or other governing documents, as applicable, of the
Company or (iii) result in any violation of any statute or any order, rule or
regulation of any court or governmental agency or body having jurisdiction over
the Company or any of its subsidiaries or any of their properties except, in the
case of clauses (i) and (iii), for such conflicts, breaches, violations or
defaults as would not individually, or in the aggregate, have a material adverse
effect on the current or future consolidated financial position, stockholders'
equity or results of operations of the Company and its subsidiaries, taken as a
whole; and no consent, approval, authorization, order, registration or
qualification of or with any such court or governmental agency or body is
required for the consummation by the Company of the transactions contemplated by
this Registration Rights Agreement, except (i) the registration under the
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Securities Act of the Securities, (ii) such consents, approvals, authorizations,
registrations or qualifications as may be required under state securities or
blue sky laws in connection with the offering and distribution of the Securities
and (iii) such consents, approvals, authorizations, registrations or
qualifications that have been obtained and are in full force and effect as of
the date hereof.
(d) This Registration Rights Agreement has been duly authorized,
executed and delivered by the Company.
SECTION 6. Indemnification.
(a) Indemnification by the Company. The Company will indemnify and
hold harmless each of the Electing Holders of Registrable Securities included in
a Shelf Registration Statement against any losses, claims, damages or
liabilities, joint or several, to which such holder may become subject under the
Securities Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon an
untrue statement or alleged untrue statement of a material fact contained in any
Shelf Registration Statement under which such Registrable Securities were
registered under the Securities Act, or any preliminary, final or free writing
prospectus contained therein or furnished by the Company to any such Electing
Holder or any amendment or supplement thereto, or arise out of or are based upon
the omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading, and
will reimburse such holder, such Electing Holder for any legal or other expenses
reasonably incurred by them in connection with investigating or defending any
such action or claim as such expenses are incurred; provided, however, that the
Company shall not be liable to any such person in any such case to the extent
that any such loss, claim, damage or liability (x) arises out of or is based
upon an untrue statement or alleged untrue statement or omission or alleged
omission made in such registration statement, or preliminary, final or free
writing prospectus, or amendment or supplement thereto, in reliance upon and in
conformity with written information furnished to the Company by any such person
for use therein or (y) arises from such person's use of the Shelf Registration
Statement or prospectus or any amendments or supplements thereto during a
Suspension Period.
(b) Indemnification by the Holders. Each Electing Holder agrees,
severally and not jointly, to (i) indemnify and hold harmless the Company and
all other holders of Registrable Securities, against any losses, claims, damages
or liabilities to which the Company or such other holders of Registrable
Securities may become subject, under the Securities Act or otherwise, insofar as
such losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon an untrue statement or alleged untrue statement
of a material fact contained in such registration statement, or any preliminary,
final or free writing prospectus contained therein or furnished by the Company
to any such Electing Holder, or any amendment or supplement thereto, or arise
out of or are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, in each case to the extent, but only to the extent, that
such untrue statement or alleged untrue statement or omission or alleged
omission was made in reliance upon and in conformity with written information
furnished to the Company by such Electing Holder expressly for use therein, and
(ii) reimburse the Company for any legal or other expenses reasonably incurred
by the Company in connection with investigating or defending any such action or
11
claim as such expenses are incurred; provided, however, that no such Electing
Holder shall be required to undertake liability to any person under this Section
6(b) for any amounts in excess of the dollar amount of the proceeds to be
received by such Electing Holder from the sale of such Electing Holder's
Registrable Securities pursuant to such registration.
(c) Notices of Claims, Etc. Promptly after receipt by an
indemnified party under subsection (a) or (b) above of written notice of the
commencement of any action, such indemnified party shall, if a claim in respect
thereof is to be made against an indemnifying party pursuant to the
indemnification provisions of or contemplated by this Section 6, notify such
indemnifying party in writing of the commencement of such action; but the
omission so to notify the indemnifying party shall not relieve it from any
liability which it may have to any indemnified party otherwise than under the
indemnification provisions of or contemplated by Section 6(a) or 6(b) hereof to
the extent the indemnifying party is not materially prejudiced by such omission.
In case any such action shall be brought against any indemnified party and it
shall notify an indemnifying party of the commencement thereof, such
indemnifying party shall be entitled to participate therein and, to the extent
that it shall wish, jointly with any other indemnifying party similarly
notified, to assume the defense thereof, with counsel reasonably satisfactory to
such indemnified party (who shall not, except with the consent of the
indemnified party, be counsel to the indemnifying party), and, after notice from
the indemnifying party to such indemnified party of its election so to assume
the defense thereof, such indemnifying party shall not be liable to such
indemnified party for any legal expenses of other counsel or any other expenses,
in each case subsequently incurred by such indemnified party, in connection with
the defense thereof other than reasonable costs of investigation. No
indemnifying party shall, without the written consent of the indemnified party,
effect the settlement or compromise of, or consent to the entry of any judgment
with respect to, any pending or threatened action or claim in respect of which
indemnification or contribution may be sought hereunder (whether or not the
indemnified party is an actual or potential party to such action or claim)
unless such settlement, compromise or judgment (i) includes an unconditional
release of the indemnified party from all liability arising out of such action
or claim and (ii) does not include a statement as to or an admission of fault,
culpability or a failure to act by or on behalf of any indemnified party.
(d) Contribution. If for any reason the indemnification provisions
contemplated by Section 6(a) or Section 6(b) are unavailable to or insufficient
to hold harmless an indemnified party in respect of any losses, claims, damages
or liabilities (or actions in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities (or
actions in respect thereof) in such proportion as is appropriate to reflect the
relative fault of the indemnifying party and the indemnified party in connection
with the statements or omissions which resulted in such losses, claims, damages
or liabilities (or actions in respect thereof), as well as any other relevant
equitable considerations. The relative fault of such indemnifying party and
indemnified party shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or omission or
alleged omission to state a material fact relates to information supplied by
such indemnifying party or by such indemnified party, and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission. The parties hereto agree that it would not be just
and equitable if contributions pursuant to this Section 6(d) were determined by
pro rata allocation (even if the holders were treated as one entity for such
purpose) or by any other method of allocation which does not take account of the
12
equitable considerations referred to in this Section 6(d). The amount paid or
payable by an indemnified party as a result of the losses, claims, damages, or
liabilities (or actions in respect thereof) referred to above shall be deemed to
include any legal or other fees or expenses reasonably incurred by such
indemnified party in connection with investigating or defending any such action
or claim. Notwithstanding the provisions of this Section 6(d), no holder shall
be required to contribute any amount in excess of the amount by which the dollar
amount of the proceeds received by such holder from the sale of any Registrable
Securities (after deducting any fees, discounts and commissions applicable
thereto) exceeds the amount of any damages which such holder has otherwise been
required to pay by reason of such untrue or alleged untrue statement or omission
or alleged omission. No person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. The holders' obligations in this Section 6(d) to contribute
shall be several in proportion to the principal amount of Registrable Securities
registered by them and not joint.
(e) The obligations of the Company under this Section 6 shall be
in addition to any liability which the Company may otherwise have and shall
extend, upon the same terms and conditions, to each officer, director and
partner of each holder and each person, if any, who controls any holder within
the meaning of the Securities Act; and the obligations of the holders
contemplated by this Section 6 shall be in addition to any liability which the
respective holder may otherwise have and shall extend, upon the same terms and
conditions, to each officer and director of the Company (including any person
who, with his consent, is named in any registration statement as about to become
a director of the Company) and to each person, if any, who controls the Company
within the meaning of the Securities Act.
(f)
SECTION 7. Rule 144.
The Company covenants to the holders of Registrable Securities that to the
extent it shall be required to do so under the Exchange Act, the Company shall
timely file the reports required to be filed by it under the Exchange Act or the
Securities Act (including the reports under Section 13 and 15(d) of the Exchange
Act referred to in subparagraph (c)(1) of Rule 144) and the rules and
regulations adopted by the Commission thereunder, and shall take such further
action as any holder of Registrable Securities may reasonably request, all to
the extent required from time to time to enable such holder to sell Registrable
Securities without registration under the Securities Act within the limitations
of the exemption provided by Rule 144, as such Rule may be amended from time to
time, or any similar or successor rule or regulation hereafter adopted by the
Commission. Upon the request of any holder of Registrable Securities in
connection with that holder's sale pursuant to Rule 144, the Company shall
deliver to such holder a written statement as to whether it has complied with
such requirements.
SECTION 8. Miscellaneous.
(a) No Inconsistent Agreements. The Company represents, warrants,
covenants and agrees that it has not granted, and shall not grant, registration
13
rights with respect to Registrable Securities or any other securities which
would be inconsistent with the terms contained in this Registration Rights
Agreement.
(b) Specific Performance. The parties hereto acknowledge that
there would be no adequate remedy at law if the Company fails to perform any of
its obligations hereunder and that the Purchasers and the holders from time to
time of the Registrable Securities may be irreparably harmed by any such
failure, and accordingly agree that the Purchasers and such holders, in addition
to any other remedy to which they may be entitled at law or in equity, shall be
entitled to compel specific performance of the obligations of the Company under
this Registration Rights Agreement in accordance with the terms and conditions
of this Registration Rights Agreement, in any court of the United States or any
State thereof having jurisdiction.
(c) Notices. All notices, requests, claims, demands, waivers and
other communications hereunder shall be in writing and shall be deemed to have
been duly given when delivered by hand, if delivered personally, by facsimile or
by courier, or three days after being deposited in the mail (registered or
certified mail, postage prepaid, return receipt requested) as follows: If to the
Company, to it at Nextwave Wireless, Inc., ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇ ▇▇▇▇▇▇, Esq. with a copy to Weil, Gotshal &
▇▇▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ , ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇, Esq., and if to a holder, to the address of such holder set forth in
the security register or other records of the Company, or to such other address
as the Company or any such holder may have furnished to the other in writing in
accordance herewith, except that notices of change of address shall be effective
only upon receipt.
(d) Parties in Interest. All the terms and provisions of this
Registration Rights Agreement shall be binding upon, shall inure to the benefit
of and shall be enforceable by the parties hereto and the holders from time to
time of the Registrable Securities and the respective successors and assigns of
the parties hereto and such holders. In the event that any transferee of any
holder of Registrable Securities shall acquire Registrable Securities, in any
manner, whether by gift, bequest, purchase, operation of law or otherwise, such
transferee shall, without any further writing or action of any kind, be deemed a
beneficiary hereof for all purposes and such Registrable Securities shall be
held subject to all of the terms of this Registration Rights Agreement, and by
taking and holding such Registrable Securities such transferee shall be entitled
to receive the benefits of, and be conclusively deemed to have agreed to be
bound by all of the applicable terms and provisions of this Registration Rights
Agreement. If the Company shall so request, any such successor, assign or
transferee shall agree in writing to acquire and hold the Registrable Securities
subject to all of the applicable terms hereof.
(e) Survival. The respective indemnities, agreements,
representations, warranties and each other provision set forth in this
Registration Rights Agreement or made pursuant hereto shall remain in full force
and effect regardless of any investigation (or statement as to the results
thereof) made by or on behalf of any holder of Registrable Securities, any
director, officer or partner of such holder or any director, officer or partner
thereof, or any controlling person of any of the foregoing, and shall survive
delivery of and payment for the Registrable Securities pursuant to the Purchase
Agreement and the transfer and registration of Registrable Securities by such
holder and the consummation of the transactions contemplated herein.
14
(f) Governing Law. This Registration Rights Agreement shall be
governed by and construed in accordance with the laws of the State of New York.
(g) EACH PARTY HERETO IRREVOCABLY AND UNCONDITIONALLY CONSENTS TO
SUBMIT TO THE EXCLUSIVE JURISDICTION OF COURTS OF UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF NEW YORK, OR THE STATE OF NEW YORK, AND ANY
APPELLATE COURT THEREFROM, FOR THE RESOLUTION OF ANY AND ALL DISPUTES,
CONTROVERSIES, CONFLICTS, LITIGATION OR ACTIONS ARISING OUT OF OR RELATING TO
THIS AGREEMENT AND THE SUBJECT MATTER HEREOF AND AGREES NOT TO COMMENCE ANY
LITIGATION OR ACTIONS ARISING OUT OF OR RELATING TO THIS AGREEMENT AND THE
SUBJECT MATTER HEREOF IN ANY OTHER COURT.
(h) Headings. The descriptive headings of the several Sections and
paragraphs of this Registration Rights Agreement are inserted for convenience
only, do not constitute a part of this Registration Rights Agreement and shall
not affect in any way the meaning or interpretation of this Registration Rights
Agreement.
(i) Entire Agreement; Amendments. This Registration Rights
Agreement and the other writings referred to herein or delivered pursuant hereto
which form a part hereof contain the entire understanding of the parties with
respect to its subject matter. This Registration Rights Agreement supersedes all
prior agreements and understandings between the parties with respect to its
subject matter. This Registration Rights Agreement may be amended and the
observance of any term of this Registration Rights Agreement may be waived
(either generally or in a particular instance and either retroactively or
prospectively) only by a written instrument duly executed by the Company and the
holders of at least a majority of the Registrable Securities at the time
outstanding. Each holder of any Registrable Securities at the time or thereafter
outstanding shall be bound by any amendment or waiver effected pursuant to this
Section 8(h), whether or not any notice, writing or marking indicating such
amendment or waiver appears on such Registrable Securities or is delivered to
such holder.
(j) Inspection. For so long as this Registration Rights Agreement
shall be in effect, this Registration Rights Agreement and a complete list of
the names and addresses of all the holders of Registrable Securities shall be
made available for inspection and copying on any business day by any holder of
Registrable Securities for proper purposes only (which shall include any purpose
related to the rights of the holders of Registrable Securities under the
Securities and this Agreement) at the offices of the Company at the address
thereof set forth in Section 8(c) above.
(k) Counterparts. This Registration Rights Agreement may be
executed by the parties in counterparts, each of which shall be deemed to be an
original, but all such respective counterparts shall together constitute one and
the same instrument. If the foregoing is in accordance with your understanding,
please sign and return to us counterparts hereof, and upon the acceptance hereof
by you, on behalf of each of the Purchasers, this letter and such acceptance
hereof shall constitute a binding agreement among the Purchasers and the
Company.
15
Very truly yours,
NEXTWAVE WIRELESS INC.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Executive Vice
President
S-1
Accepted as of the date hereof:
AVENUE INVESTMENTS, L.P.
By: Avenue Partners, LLC, its General Partner
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
---------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Member
S-2
AVENUE SPECIAL SITUATIONS FUND IV, L.P.
By: Avenue Capital Partners IV, LLC, its General Partner
By: GL Partners IV, LLC, its Managing Member
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
---------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Member
S-3
DK ACQUISITION PARTNERS, L.P.
By: ▇.▇. ▇▇▇▇▇▇▇▇ & Co., its General Partner
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
---------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: General Partner
S-4
HIGHBRIDGE INTERNATIONAL LLC
By: Highbridge Capital Management, LLC
By: /s/ ▇▇▇▇ ▇. Chill
---------------------------
Name: ▇▇▇▇ ▇. Chill
Title: Managing Director
S-5
INVESTCORP INTERLACHEN MULTI-STRATEGY MASTER FUND LIMITED
By: Interlachen Capital Group LP,
an Authorized Signatory
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Authorized Signatory
S-6
POLYGON DEBT HOLDINGS LIMITED
By: Polygon Investment Partners LLP,
its investment manager
By: /s/ ▇. ▇▇▇▇▇▇▇
---------------------------
Name: ▇. ▇▇▇▇▇▇▇
Title: PM
S-7
SILVER OAK CAPITAL, L.L.C.,
as agent for and on behalf of the entities attached hereto
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
---------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
Title: Manager
S-8
EXHIBIT A
NEXTWAVE WIRELESS INC.
INSTRUCTION TO DTC PARTICIPANTS
-------------------------------
(Date of Mailing)
URGENT - IMMEDIATE ATTENTION REQUESTED
DEADLINE FOR RESPONSE: [DATE] *
-------------------------------
The Company is in the process of registering the Securities under the Securities
Act of 1933 for resale by the beneficial owners thereof. In order to have their
Securities included in the registration statement, beneficial owners must
complete and return the enclosed Notice of Registration Statement and Selling
Securityholder Questionnaire.
* Not less than 20 calendar days from date of mailing.
A-1
NEXTWAVE WIRELESS INC.
Notice of Registration Statement
and
Selling Securityholder Questionnaire
------------------------------------
(Date)
Reference is hereby made to the Registration Rights Agreement (the "Registration
Rights Agreement") among NEXTWAVE WIRELESS INC. (the "Company"), and the
Purchasers named therein. Pursuant to the Registration Rights Agreement, the
Company has filed with the United States Securities and Exchange Commission (the
"Commission") a registration statement on Form (the "Shelf Registration
Statement") for the registration and resale under Rule 415 of the Securities Act
of 1933, as amended (the "Securities Act"), of the Company's Common Stock (the
"Securities"). A copy of the Registration Rights Agreement is attached hereto.
All capitalized terms not otherwise defined herein shall have the meanings
ascribed thereto in the Registration Rights Agreement.
Each beneficial owner of Registrable Securities (as defined below) is entitled
to have the Registrable Securities beneficially owned by it included in the
Shelf Registration Statement. In order to have Registrable Securities included
in the Shelf Registration Statement, this Notice of Registration Statement and
Selling Securityholder Questionnaire ("Notice and Questionnaire") must be
completed, executed and delivered to the Company's counsel at the address set
forth herein for receipt ON OR BEFORE [DEADLINE FOR RESPONSE]. Beneficial owners
of Registrable Securities who do not complete, execute and return this Notice
and Questionnaire by such date (i) will not be named as selling securityholders
in the Shelf Registration Statement and (ii) may not use the Prospectus forming
a part thereof for resales of Registrable Securities.
Certain legal consequences arise from being named as a selling securityholder in
the Shelf Registration Statement and related Prospectus. Accordingly, holders
and beneficial owners of Registrable Securities are advised to consult their own
securities law counsel regarding the consequences of being named or not being
named as a selling securityholder in the Shelf Registration Statement and
related Prospectus.
The term "Registrable Securities" is defined in the Registration Rights
Agreement.
A-2
ELECTION
The undersigned holder (the "Selling Securityholder") of Registrable Securities
hereby elects to include in the Shelf Registration Statement the Registrable
Securities beneficially owned by it and listed below in Item (3). The
undersigned, by signing and returning this Notice and Questionnaire, agrees to
be bound with respect to such Registrable Securities by the terms and conditions
of this Notice and Questionnaire and the Registration Rights Agreement,
including, without limitation, Section 6 of the Registration Rights Agreement,
as if the undersigned Selling Securityholder were an original party thereto.
The Selling Securityholder hereby provides the following information to the
Company and represents and warrants that such information is accurate and
complete:
A-3
QUESTIONNAIRE
(1) (a) Full Legal Name of Selling Securityholder:
(b) Full Legal Name of Registered Holder (if not the same as in (a)
above) of Registrable Securities Listed in Item (3) below:
(c) Full Legal Name of DTC Participant (if applicable and if not the
same ( as (b) above) Through Which Registrable Securities Listed in
Item (3) below are Held:
(2) Address for Notices to Selling Securityholder:
---------------------------------------
---------------------------------------
---------------------------------------
Telephone:
------------------------------
Fax:
------------------------------
Contact Perso
------------------------------
(3) Beneficial Ownership of Securities:
Except as set forth below in this Item (3), the undersigned does not
beneficially own any Securities.
(a) Number of shares of Registrable Securities beneficially
owned:_______________________
(b) Number of shares of Securities other than Registrable Securities
beneficially owned:________________________________________
(c) Number of shares of Registrable Securities which the undersigned
wishes to be included in the Shelf Registration
Statement:______________________________
(4) Beneficial Ownership of Other Securities of the Company:
A-4
Except as set forth below in this Item (4), the undersigned Selling
Securityholder is not the beneficial or registered owner of any other
securities of the Company, other than the Securities listed above in Item
(3).
State any exceptions here:
(5) Relationships with the Company:
Except as set forth below, neither the Selling Securityholder nor any of
its affiliates, officers, directors or principal equity holders (5% or
more) has held any position or office or has had any other material
relationship with the Company (or its predecessors or affiliates) during
the past three years.
State any exceptions here:
(6) Plan of Distribution:
Except as set forth below, the undersigned Selling Securityholder intends
to distribute the Registrable Securities listed above in Item (3) only as
follows (if at all): Such Registrable Securities may be sold from time to
time directly by the undersigned Selling Securityholder or, alternatively,
through broker-dealers or agents. Such Registrable Securities may be sold
in one or more transactions at fixed prices, at prevailing market prices
at the time of sale, at varying prices determined at the time of sale, or
at negotiated prices. Such sales may be effected in transactions (which
may involve crosses or block transactions) (i) on any national securities
exchange or quotation service on which the Registered Securities may be
listed or quoted at the time of sale, (ii) in the over-the-counter market,
(iii) in transactions otherwise than on such exchanges or services or in
the over-the-counter market, or (iv) through the writing of options. In
connection with sales of the Registrable Securities or otherwise, the
Selling Securityholder may enter into hedging transactions with
broker-dealers, which may in turn engage in short sales of the Registrable
Securities in the course of hedging the positions they assume. The Selling
Securityholder may also sell Registrable Securities short and deliver
Registrable Securities to close out such short positions, or loan or
pledge Registrable Securities to broker-dealers that in turn may sell such
securities.
State any exceptions here:
By signing below, the Selling Securityholder acknowledges that it understands
its obligation to comply, and agrees that it will comply, with the provisions of
the Exchange Act and the rules and regulations thereunder, particularly
Regulation M.
A-5
In the event that the Selling Securityholder transfers all or any portion of the
Registrable Securities listed in Item (3) above after the date on which such
information is provided to the Company, the Selling Securityholder agrees to
notify the transferee(s) at the time of the transfer of its rights and
obligations under this Notice and Questionnaire and the Registration Rights
Agreement.
By signing below, the Selling Securityholder consents to the disclosure of the
information contained herein in its answers to Items (1) through (6) above and
the inclusion of such information in the Shelf Registration Statement and
related Prospectus. The Selling Securityholder understands that such information
will be relied upon by the Company in connection with the preparation of the
Shelf Registration Statement and related Prospectus.
In accordance with the Selling Securityholder's obligation under Section 3(d) of
the Registration Rights Agreement to provide such information as may be required
by law for inclusion in the Shelf Registration Statement, the Selling
Securityholder agrees to promptly notify the Company of any inaccuracies or
changes in the information provided herein which may occur subsequent to the
date hereof at any time while the Shelf Registration Statement remains in
effect. All notices hereunder and pursuant to the Registration Rights Agreement
shall be made in writing, by hand-delivery, first-class mail, or air courier
guaranteeing overnight delivery as follows:
(i) To the Company:
NEXTWAVE WIRELESS INC.
Attention: General Counsel
(ii) With a copy to:
Once this Notice and Questionnaire is executed by the Selling Securityholder and
received by the Company's counsel, the terms of this Notice and Questionnaire,
and the representations and warranties contained herein, shall be binding on,
shall inure to the benefit of and shall be enforceable by the respective
successors, heirs, personal representatives, and assigns of the Company and the
Selling Securityholder (with respect to the Registrable Securities beneficially
owned by such Selling Securityholder and listed in Item (3) above. This
Agreement shall be governed in all respects by the laws of the State of New
York.
A-6
IN WITNESS WHEREOF, the undersigned, by authority duly given, has caused this
Notice and Questionnaire to be executed and delivered either in person or by its
duly authorized agent.
Dated: ____________
_____________________________
Selling Securityholder
(Print/type full legal name of beneficial owner of Registrable Securities)
By:
---------------------------
Name:
Title:
PLEASE RETURN THE COMPLETED AND EXECUTED NOTICE AND QUESTIONNAIRE FOR RECEIPT ON
OR BEFORE [DEADLINE FOR RESPONSE] TO THE COMPANY'S COUNSEL AT:
A-7