Exhibit 10.38
EXECUTION COPY
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PURCHASE AGREEMENT
between
ST. LOUE, LLC
and
CLEARWIRE CORPORATION
and
CLEARWIRE SPECTRUM HOLDINGS LLC
Dated as of September 9, 2005
[***Portions of this Exhibit have been omitted and filed separately with the
Securities and Exchange Commission as part of an application for confidential
treatment pursuant to the Securities Act of 1933, as amended]
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TABLE OF CONTENTS
Page
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ARTICLE 1 DEFINITIONS.................................................... 1
ARTICLE 2 PURCHASE AND SALE OF ASSETS.................................... 4
ARTICLE 3 REPRESENTATIONS AND WARRANTIES OF SELLER....................... 5
ARTICLE 4 REPRESENTATIONS AND WARRANTIES OF PURCHASER.................... 9
ARTICLE 5 COVENANTS AND OTHER AGREEMENTS................................. 10
ARTICLE 6 CONDITIONS TO CLOSING.......................................... 13
ARTICLE 7 TERMINATION.................................................... 15
ARTICLE 8 SURVIVAL AND REMEDIES.......................................... 15
ARTICLE 9 MISCELLANEOUS.................................................. 18
SCHEDULES AND EXHIBITS
Exhibit A License
Exhibit B Form of Instrument of Assignment for License
Exhibit C Form of Joinder to Amended and Restated Stockholders Agreement
Exhibit D Form of Stockholder Questionnaire
Exhibit E Interference Agreements
Exhibit F Form of Joinder to Registration Rights Agreement
Exhibit G Form of Side Letter Regarding Registration Rights
PURCHASE AGREEMENT
This PURCHASE AGREEMENT, dated as of September 9, 2005 (the "Effective
Date"), is among St. LouE, LLC, a Delaware limited liability company ("Seller"),
Clearwire Spectrum Holdings LLC, a Nevada limited liability company
("Purchaser"), and Clearwire Corporation, a Delaware corporation ("Clearwire"),
the parent corporation of Purchaser (for the limited purpose of issuing stock
pursuant to Section 2.3 and for the limited purpose of making the
representations in Article 4 and the applicable covenants in Article 5). Seller,
Clearwire and Purchaser may be referred to herein as "Parties" or each as a
"Party."
A. Seller holds a license ("License") granted by the FCC authorizing Seller
to construct and operate a Broadband Radio Service ("BRS"), formerly known as
Multipoint Distribution Service, using call sign [***] on channels *** (the
"Seller Channels") in the *** market, a copy of which is attached as Exhibit A.
B. Seller desires to assign the License to Purchaser, and Purchaser desires
to acquire the License on the terms and subject to the conditions set forth in
this Agreement.
NOW, THEREFORE, in consideration of the premises and the mutual
representations, warranties, covenants, conditions and agreements hereinafter
set forth, the Parties agree as follows:
ARTICLE 1 DEFINITIONS
As used in this Agreement, the following terms shall have the meanings set
forth or referenced below:
"Accredited Investor" means as this term is defined in Rule 501(a) of
Regulation D as promulgated by the U.S. Securities and Exchange Commission under
the Securities Act.
"Affiliate" means, with respect to any Person, any other Person that,
directly or indirectly, alone or through one or more intermediaries, controls,
is controlled by or is under common control with that Person. For purposes of
this definition, "control" (including the terms "controlling" and "controlled")
means the power to direct or cause the direction of the management and policies
of a Person, directly or indirectly, whether through the ownership of securities
or partnership or other ownership interests, by contract or otherwise.
"Agreement" means this Purchase Agreement and all Exhibits and Schedules
hereto, as amended, supplemented or otherwise modified from time to time in
accordance with the terms hereof.
"BRS" is defined in Recital A.
"Business Day" means any day, other than a Saturday or Sunday, on which
commercial banks are open for business in Seattle, Washington.
"Claim" is defined in Section 8.4(a).
"Clearwire" is defined in the preamble.
"Clearwire Stock" is defined in Section 2.3.
"Close" means the process and result of Closing.
"Closing" is defined in Section 2.4.
"Closing Date" is defined in Section 2.4.
"Confidential Information" means any and all information regarding the
business, finances, operations, products, services and customers of the
Purchaser or Seller and their respective Affiliates, in written or oral form or
in any other medium.
"Consent" means any consent or approval of Governmental Authorities or
other third parties necessary to authorize, approve or permit the Parties hereto
to consummate the Transactions.
"Damages" means any and all losses, claims, demands, liabilities,
obligations, actions, suits, orders, statutory or regulatory compliance
requirements, or proceedings asserted by any Person, and all damages, costs,
expenses, assessments, judgments, recoveries and deficiencies, including
interest, penalties, investigatory expenses, consultants' fees, and reasonable
attorneys' fees and costs, of every kind and description.
"Deposit" is defined in Section 2.2.
"Disclosure Memorandum" means that certain draft Disclosure Memorandum of
Clearwire dated March 14, 2005, a copy of which has been provided to Seller.
"Effective Date" is defined in the preamble.
"FCC" means the Federal Communications Commission or any successor agency
thereof.
"FCC Application" is defined in Section 5.7.
"Final Order" means an action or decision of the FCC as to which (i) no
request for a stay or similar request is pending, no stay is in effect, the
action or decision has not been vacated, reversed, set aside, annulled or
suspended and any deadline for filing such request that may be designated by
statute or regulation has passed, (ii) no petition for rehearing or
reconsideration or application for review is pending and the time for the filing
of any such petition or application has passed, (iii) the FCC does not have the
action or decision under reconsideration on its own motion and the time within
which it may effect such reconsideration that may be designated by statute or
rule has passed, and (iv) no appeal is pending including other administrative or
judicial review, or in effect and any deadline for filing any such appeal that
may be designated by statute or rule has passed.
"Governmental Authority" means a Federal, state or local court,
legislature, governmental agency (including the United States Department of
Justice), commission or regulatory or adrninistrative authority or
instrumentality.
"Interference Agreements" means the agreements listed in Exhibit E hereto
and further described in Section 3.4(e) below.
"Law" means applicable common law and any statute, ordinance, code or other
law, rule, permit, permit condition, regulation, order, decree, technical or
other standard, requirement or procedure enacted, adopted, promulgated, applied
or followed by any Governmental Authority.
"Lease/Option Agreement" means that certain Tower Site Lease Option, dated
*** by and among ***.
"License" is defined in Recital A.
"Lien" means, with respect to any asset, any mortgage, lien, pledge,
charge, security interest, right of first refusal or right of others therein, or
encumbrance of any nature whatsoever in respect of such asset, other than: (1)
for liens for taxes not yet due and payable, and (2) rights and restrictions
imposed by FCC rules or policies, or the Communications Act of 1934, as amended,
and (3) the Interference Agreements listed in Exhibit E hereto.
"Party" or "Parties" is defined in the preamble.
"Person" means any general partnership, limited partnership, limited
liability company, corporation, joint venture, trust, business trust,
Governmental Authority, cooperative, association, other entity, or individual,
and the heirs, executors, administrators, legal representatives, successors, and
assigns of such person as the context may require.
"Purchase Price" is defined in Section 2.3.
"Purchaser" is defined in the preamble.
"Purchaser Indemnified Parties" is defined in Section 8.2.
"Reasonable Efforts" means the efforts that a reasonably prudent person or
entity desirous of achieving a result would use in similar circumstances to
ensure that such result is achieved; provided, however, that an obligation to
use Reasonable Efforts under this Agreement does not require the Party subject
to that obligation to take actions or incur costs that would result in a
materially adverse change in the benefits such Party expects to realize from
this Agreement.
"Securities Act" means the Securities Act of 1933, as amended.
"Seller" is defined in the preamble.
"Seller Channels" is defined in Recital A.
"Seller Indemnified Parties" is defined in Section 8.3.
"Tax" or "Taxes" means any taxes, assessment, duties, fees, levies,
imposts, deductions, or withholdings, including income, gross receipts, ad
valorem, value added, excise, real or personal property, asset, sales, use,
license, payroll, transaction, capital, net worth and franchise taxes, estimated
taxes, withholding, employment, social security, workers compensation, utility,
severance, production, unemployment compensation, occupation, premium, windfall
profits, transfer and gains taxes, or other governmental charges of any nature
whatsoever, imposed by any Taxing Authority of any government or country or
political subdivision of any country, and any liabilities with respect thereto,
including any penalties, additions to tax, fines or interest thereon and
includes any liability for Taxes of another person by contract or as a
transferee or successor.
"Tax Return" means any report, return, statement, estimate, declaration,
notice, form or other information required to be supplied to a Taxing Authority
in connection with Taxes.
"Taxing Authority" shall mean the Internal Revenue Service and any other
Governmental Authority responsible for the administration of any Tax.
"Transactions" means the transactions contemplated by this Agreement.
ARTICLE 2 PURCHASE AND SALE OF ASSETS
Section 2.1 Purchase and Sale. On the terms and subject to the conditions
of this Agreement, at the Closing, Seller shall sell, assign, transfer, convey
and deliver to Purchaser or another wholly-owned subsidiary of Clearwire,
designated by Clearwire as provided in Section 5.7 hereafter, and Purchaser
shall purchase and assume from Seller all of Seller's right, title and interest
as of the Closing Date in and to: (i) the License, free and clear of all Liens;
and (ii) the Interference Agreements. The Lease/Option Agreement is specifically
excluded from Seller's sale, assignment, transfer, conveyance and delivery
herein to Purchaser or any other wholly-owned subsidiary of Clearwire, and
Purchaser shall not hereby purchase or assume from Seller any of Seller's right,
title and interest under the Lease/Option Agreement.
Section 2.2 Deposit. Within five (5) Business Days of the date of this
Agreement, Purchaser shall pay Seller *** as a deposit (the "Deposit"). The
Deposit shall be applied against the Purchase Price (as defined below)
dollar-for-dollar in the event that the Transactions described by this Agreement
close. Seller shall return the Deposit to Purchaser, within five (5) Business
Days of such termination, in the event that this Agreement is terminated by
Seller pursuant to Section 7.1(b) or 7.1(d) before the Transactions Close. The
Deposit shall be retained by Seller, at its election, as liquidated damages in
the event that this Agreement is terminated by Seller before the Transactions
Close pursuant to Section 7.1(c).
Section 2.3 Payment of Purchase Price. As consideration for sale and
assignment of the License and the Interference Agreements to Purchaser,
Purchaser shall
deliver or cause to be delivered to Seller the monetary funds and stock (the
"Purchase Price") in the amounts and quantities, and at the times specified
below:
(a) At the Closing, the Deposit shall be first applied against the
Purchase Price as described above;
(b) *** shall be payable at the Closing in immediately available funds
via wire transfer to an account designated by Seller;
(c) With respect to the balance of the Purchase Price after
application of the Deposit and the wire transfer of funds, Clearwire shall
issue to Seller an aggregate total of *** Shares of Clearwire's Class A
common stock ("Clearwire Stock"): provided, however, if at the time of
Closing, Seller is not an Accredited Investor, then the portion of the
Purchase Price otherwise payable to Seller in Clearwire Stock, shall be
payable to Seller at the Closing, in immediately available funds via wire
transfer to an account designated by Seller, in substitution for delivery
of the Clearwire Stock to Seller, at the value of the Clearwire Stock as of
the date of this Agreement. The number of shares of the Clearwire Stock
shall be adjusted, if necessary to account for any stock split, cash
dividend, stock dividend, or other distribution or recapitalization in
respect of Clearwire's issued and outstanding stock between now and the
Closing.
Section 2.4 Closing. Upon the terms and subject to the conditions hereof,
the closing of the sale of the License (the "Closing") shall take place at the
offices of ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, LLP, ▇▇▇▇ ▇ ▇▇▇▇▇▇, ▇.▇., ▇▇▇▇▇▇▇▇▇▇, ▇▇
▇▇▇▇▇, within five (5) Business Days following the date on which the last
condition under Article 6 has been satisfied or waived, or at such other time
and place as the Parties may mutually agree. The date on which Closing occurs is
called the "Closing Date."
ARTICLE 3 REPRESENTATIONS AND WARRANTIES OF SELLER
Seller represents and warrants to Purchaser as follows:
Section 3.1 Authorization. Seller is lawfully existing and in good standing
under the laws of the State of Delaware, and has all requisite power and
authority to enter into this Agreement and to perform the obligations to be
performed by it under this Agreement. The execution and delivery of this
Agreement, and the performance by Seller of its obligations hereunder, have been
duly authorized by all necessary action on the part of Seller.
Section 3.2 Enforceability. This Agreement has been duly executed and
delivered by Seller and is a legal, valid and binding obligation of Seller,
enforceable against Seller in accordance with its terms, subject to bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and similar laws of
general applicability relating to or affecting creditors' rights, and to general
equity principles and FCC Consent. Each other agreement, document, instrument or
certificate contemplated by this Agreement to be delivered by Seller to
Purchaser, if and when so delivered, will be duly executed and delivered by
Seller and a
legal, valid and binding obligation of Seller, enforceable against Seller in
accordance with its terms, subject to bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and similar laws of general applicability
relating to or affecting creditors' rights, and to general equity principles and
FCC Consent.
Section 3.3 No Conflicts or Consents. Neither the execution, delivery and
performance by Seller of this Agreement, nor the consummation of the
Transactions by Seller, will: (i) constitute, with or without the giving of
notice or passage of time or both, a breach, violation or default by Seller or
any of its Affiliates, create a Lien, or give rise to any right of termination,
modification, cancellation, prepayment or acceleration, under (x) any Law or
license (subject to receipt of Consent of the FCC), or (y) any note, bond,
mortgage, indenture, lease, agreement or other instrument, in each case which is
applicable to or binding upon Seller or the License; (ii) require any Consent,
other than the Consent of the FCC; or (iii) violate any Law by which Seller is
bound.
Section 3.4 FCC Matters.
(a) The license attached hereto as Exhibit A is a true and correct
copy of the License. There is no other condition, to the knowledge of
Seller, imposed by the FCC as part of the License that is neither set forth
on the face of the License as issued by the FCC, or contained in the FCC
rules applicable generally to the licenses of the type, nature and class or
location of the License. No other licenses or authorizations are required
from the FCC for the operations of facilities in compliance with the
License on the Seller Channels in the market area as of the Effective Date.
Except as set forth in Section 3.5 below, no Person other than Seller has
any right, title, interest or claim in or to the License. The License has
been granted to Seller by Final Order and is in full force and effect.
(b) Excluding the proceedings in WT Docket No. 03-66, there is not
pending or, to the knowledge of Seller, threatened against Seller or the
License before the FCC or any other Governmental Authority any application,
action, petition, objection or other pleading, or any proceeding with the
FCC or any other Governmental Authority, which (i) questions or contests
the validity of, or seeks the revocation, forfeiture, non-renewal or
suspension of, the License, (ii) seeks the imposition of any modification
or amendment with respect thereof, (iii) which would adversely affect the
ability of Seller to consummate the Transactions, or (iv) seeks the payment
of a fine, sanction, penalty, damages or contribution in connection with
the use of the License. To Seller's knowledge there are no facts or
circumstances existing that would give rise to any such application,
action, petition, objection or other pleading, or proceeding with the FCC
or any other Governmental Authority.
(c) Other than under the Interference Agreements listed in Exhibit E
hereto, Seller has not located, in a search of its readily available
records as of the Effective Date, any other written agreements to accept or
allow any electromagnetic interference from any other FCC licensees,
permittees or applicants with respect to the License and/or Seller
Channels, and, to Seller's knowledge, no other such
licensees, permittees or applicants have agreed to accept electromagnetic
interference from Seller with respect to their respective facilities.
(d) To Seller's knowledge, Seller is in compliance with all applicable
Laws except for any non-compliance that, individually or in the aggregate,
will not have a material adverse effect on the License or on Seller's
ability to consummate the Transactions. To Seller's knowledge, since the
grant of the Seller's most recent renewal application for the License,
Seller has complied in all material respects with FCC Laws applicable to
the License, including without limitation the Communication Act of 1934, as
amended. Since the issuance of the License, Seller has not received a
notice of non-compliance from the FCC. To Seller's knowledge all material
documents required to be filed at any time by Seller with the FCC with
respect to the License have been timely filed or the time period for such
filing has not lapsed. To Seller's knowledge, all such documents filed
since the date that the License was issued to Seller are correct in all
material respects. All amounts owed to the FCC in connection with the
License have been timely paid.
(e) As of the Effective Date, the facilities subject to the License
for which certification or notification of completion of construction has
been filed with the FCC are not operating.
Section 3.5 Title to License/Lease. Except as recited in this Section,
Seller holds the License free and clear of any Liens.
Section 3.6 Taxes. All Tax Returns required to be filed by Seller have been
timely filed, and Seller is not the beneficiary of any extension of time within
which to file any Tax Return. All such Tax Returns are true, complete and
correct in all material respects. To Seller's knowledge all Taxes owed by Seller
(whether or not shown on any Tax Return) have been paid, including, without
limitation with respect to any BRS transmission facilities. Seller has withheld
and paid to the appropriate Taxing Authority all Taxes required to have been
withheld and paid in connection with amounts paid or owing to any employee,
independent contractor, creditor, member or other third party. Seller has not
waived any statute of limitations in respect to Taxes or agreed to any extension
of time with respect to an assessment or deficiency of Taxes. No adjustment
relating to any Tax Returns filed by Seller has been proposed by any Taxing
Authority and remains unresolved. There are no Tax Liens on the License, other
than Liens for Taxes that are not yet due and payable. Seller is not a "foreign
person" within the meaning of Section 1445 of the Code. The License does not
secure any indebtedness, the interest on which is tax-exempt under Section
103(a) of the Code. The License is not "tax-exempt use property" within the
meaning of Section 168(h) of the Code.
Section 3.7 Litigation. Other than proceedings of general applicability
(such as WT Docket No. 03-66), there is no legal proceeding now in progress or
pending or, to the knowledge of the Seller, threatened against Seller or the
License or the business of Seller, nor to the knowledge of Seller does there
exist any basis therefor. Seller is not subject to any order, writ, injunction
or decree of any court or any federal, state, municipal or other domestic or
foreign Governmental Authority.
Section 3.8 Brokers. Seller has engaged ▇▇▇▇ ▇▇▇▇▇ ("▇▇. ▇▇▇▇▇") and Cheval
Capital, Inc. ("Cheval") as brokers regarding the Transactions, and Seller shall
be solely responsible for payment of any brokerage commissions to ▇▇. ▇▇▇▇▇ and
Cheval. Other than ▇▇. ▇▇▇▇▇ and Cheval, neither Seller nor any of its
Affiliates has employed any other broker or finder or incurred any liability for
any other brokerage or finding fees or commissions in connection with the
Transactions.
Section 3.9 Securities Representations.
(a) Seller is an Accredited Investor. Seller is acquiring the
Clearwire Stock for its own account, for investment purposes only and not
with a view to the distribution (as such term is used in Section 2(11) of
the Securities Act) thereof. Seller understands that the Clearwire Stock
has not been registered under the Securities Act and cannot be sold or
otherwise transferred unless subsequently registered under the Securities
Act or an exemption from such registration is available.
(b) Seller is knowledgeable and experienced in the telecommunications
industry and is capable of evaluating the risks and merits of the
transactions contemplated by this Agreement, including the acquisition of
shares of Clearwire Stock, and making an informed decision with respect
thereto. Seller has received the Disclosure Memorandum from Purchaser in
sufficient time to review and analyze its contents prior to the execution
of this Agreement. Seller and its representatives have had sufficient
opportunity to ask questions of and receive answers from Purchaser and
Clearwire concerning the business of Clearwire, its operations, assets and
liabilities. Seller and its representatives have had an opportunity to
review all documents and records concerning Clearwire and its business that
Seller has requested. Seller has conducted its own independent assessment,
analysis and investigation with respect to Clearwire and its business at
the time of entering into this Agreement and has agreed to enter into this
Agreement and accept Clearwire Stock as partial payment of the Purchase
Price based solely on this assessment, analysis and investigation, and the
representations and warranties of Purchaser and Clearwire set forth in this
Agreement and the information contained in the Disclosure Memorandum.
(c) Seller is aware that Clearwire is a speculative enterprise, that
certain of the information disclosed to it contain forward looking
statements which involve risks and uncertainties, and that Clearwire's
actual results may differ significantly from the results discussed in these
forward looking statements. Seller further acknowledges that the value of
Clearwire's respective assets is inherently uncertain and is dependent upon
market, technological, and regulatory developments concerning feasible and
allowable uses. Seller represents and warrants to Purchaser and Clearwire
that it has assessed these factors independently and has agreed to enter
into this Agreement without reliance upon or expectation of any disclosures
of any kind from Purchaser or Clearwire, except as set form in this
Agreement and the Disclosure Memorandum.
(d) For purposes of application of state securities law, Seller is a
resident of the jurisdiction of the State of Florida.
ARTICLE 4 REPRESENTATIONS AND WARRANTIES OF PURCHASER
Each of Clearwire and Purchaser hereby represents and warrants to Seller as
follows:
Section 4.1 Existence; Authorization. Each of Clearwire and Purchaser is
lawfully existing and in good standing under the laws of the State of Delaware,
has all requisite power and authority to enter into this Agreement and to
perform the obligations to be performed by it under this Agreement. Except for
obtaining board approval from Clearwire, the execution and delivery of this
Agreement, and the performance by Purchaser and Clearwire of its respective
obligations hereunder, have been duly authorized by all necessary action on the
part of Purchaser and Clearwire, respectively.
Section 4.2 Enforceability. This Agreement has been duly executed and
delivered by each of Clearwire and Purchaser and is a legal, valid and binding
obligation of each of Clearwire and Purchaser, enforceable against Clearwire and
Purchaser in accordance with its terms, subject to bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors' rights and to general equity
principles, and FCC Consent. Each other agreement, document, instrument or
certificate contemplated by this Agreement to be delivered by Purchaser or
Clearwire to Seller, if and when so delivered, will be duly executed and
delivered by each of Clearwire and Purchaser and a legal, valid and binding
obligation of each of Clearwire and Purchaser, enforceable against Clearwire and
Purchaser in accordance with its terms, subject to bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors' rights and to general equity
principles, and FCC Consent.
Section 4.3 No Conflicts or Consents. Neither the execution, delivery and
performance by Clearwire or Purchaser of this Agreement, nor the consummation of
the Transactions by Clearwire or Purchaser, will (i) constitute, with or without
the giving of notice or passage of time or both, a breach, violation or default
by Clearwire or Purchaser or any of their Affiliates, or give rise to any right
of termination, modification, cancellation, prepayment or acceleration, under
(x) any Law or license (subject to receipt of Consent of the FCC), or (y) any
note, bond, mortgage, indenture, lease, agreement or other instrument, in each
case which is applicable to or binding upon Clearwire or Purchaser; (ii) require
any Consent, other than the Consent of the FCC and board approval from
Clearwire; or (iii) violate any Law by which Clearwire or Purchaser is bound.
Section 4.4 Brokers. Neither Clearwire, Purchaser, nor any affiliate of
either has employed any broker or finder or incurred any liability for any
brokerage or finder's fees or commissions in connection with the Transactions.
Section 4.5 Securities to be Issued to Seller. Purchaser and Clearwire
hereby jointly and severally represent and warrant to Seller that upon the
issuance and delivery by Clearwire to Seller pursuant to this Agreement, the
Clearwire Stock will be duly issued, fully paid and non-assessable, and will be
free of restrictions on transfer other than restrictions on transfer under this
Agreement and the Amended and Restated Stockholders Agreement dated March
16,2004, by and among Clearwire and Clearwire's stockholders to which Seller
will be a party to by joinder, the Registration Rights Agreement dated March
16,2004 to which Seller will be a party to by joinder and applicable securities
laws. Prior to the Closing, Clearwire shall deliver to Seller any updates to the
Disclosure Memorandum or other updated disclosures it has delivered to third
party investors prior to the Effective Date. Each of Purchaser and Clearwire
represents and warrants that Clearwire's Board of Directors has approved the
issuance of the Clearwire Stock pursuant to this Agreement and Clearwire's
execution, delivery and performance of this Agreement. Subject in part to the
truth and accuracy of the Seller's representations in Section 3.9, the offer,
sale and issuance of the Clearwire Stock as contemplated by this Agreement are
exempt from the registration requirements of the Securities Act and applicable
state securities laws, and Clearwire will take no action hereafter that would
cause the loss of such exemptions.
Section 4.6 FCC Qualification. Purchaser is legally, technically,
financially, and otherwise qualified to acquire and hold the License from Seller
under the rules and policies of the FCC and the Communications Act of 1934, as
amended.
Section 4.7 Proceedings. There is no action, proceeding or investigation
pending or, to the knowledge of Purchaser, threatened against Purchaser, or
Purchaser's property or assets, that would be reasonably expected to have an
adverse effect on Purchaser's ability to consummate the Transactions, or which
seeks to prevent or challenge the Transactions.
ARTICLE 5 COVENANTS AND OTHER AGREEMENTS
Section 5.1 Consummation of Transactions/Clearwire Board Approval. From and
after the date of this Agreement, each Party shall use Reasonable Efforts to
take, or cause to be taken, all actions, and to do, or cause to be done, all
things necessary, proper or advisable and consistent with applicable Law to
perform its obligations under this Agreement and to consummate the Transactions
as soon as reasonably practicable. Clearwire covenants that it will seek
approval of the transactions contemplated by this Agreement at the next
regularly scheduled meeting of the board of directors of Clearwire after the
execution of this Agreement, if not before.
Section 5.2 Compliance with Law. Prior to Closing, Seller shall comply in
all material respects with Laws applicable to the License.
Section 5.3 Certain Notices. Prior to the Closing, each Party shall
promptly notify the other Parties in reasonable detail:
(a) upon the commencement of, or the impending or threatened
commencement of, or upon obtaining knowledge of any facts that would give
rise to, any claim, action or proceeding brought to enjoin the consummation
of the Transactions, or against or relating to (i) the notifying Party or
its properties or assets, which could materially adversely affect the
Transactions or its ability to perform its obligations hereunder, or (ii)
the License or its use;
(b) upon the occurrence of, or the impending or threatened occurrence
of, or upon obtaining knowledge of any facts that would give rise to, any
event which could cause or constitute a material breach of any of its
representations, warranties, covenants or agreements contained in this
Agreement, and until the Closing shall use Reasonable Efforts to prevent or
promptly remedy such breach; and
(c) upon the occurrence or existence of any event, condition,
circumstance or state of facts known to the notifying Party, which has had
or could have a material adverse effect on the Transactions or its ability
to perform its obligations hereunder, or could materially adversely affect
the License or its use.
Section 5.4 Confidentiality. Pursuant to this Agreement and the performance
thereof, each Party may receive certain Confidential Information. The use of
such Confidential Information shall be governed by that certain letter agreement
addressed to Seller from Clearwire, dated September 16,2004 (the
"Confidentiality Agreement"): provided, however, nothing in this Agreement or
the Confidentiality Agreement shall prevent a Party from disclosing information
that is required to be disclosed pursuant to federal securities laws, but in
such event, only to the extent such disclosure is required. In addition, Seller
acknowledges and agrees that the financial terms of this Agreement may be
required to be separately stated in the consolidated financial statements of
Purchaser and/or its Affiliates and that the disclosure by Purchaser or its
Affiliates of such financial statements shall not be a breach of this Agreement
or the Confidentiality Agreement. Purchaser agrees to undertake to comply with
the Confidentiality Agreement with regard to Confidential Information as if it
were Clearwire.
Section 5.5 Further Assurances. Prior to, at and following the Closing,
each Party shall forthwith upon request execute and deliver such documents and
take such actions as may reasonably be requested by the other Party in order to
effectuate the purposes of this Agreement.
Section 5.6 FCC Qualifications. Seller and Purchaser each hereby covenants
and agrees that, prior to the Closing, it shall use Reasonable Efforts not to
take action that will remove any of those qualifications required by FCC rules
or policies, or the Communications Act of 1934, as amended, for it to hold the
License.
Section 5.7 FCC Consent. Seller and Purchaser will use Reasonable Efforts
to prepare all application forms and related exhibits, certifications and other
documents necessary to secure the Consent of the FCC to the Transactions
(collectively, the "FCC Application") and to file the FCC Application within ten
(10) Business Days following the Effective Date. If Purchaser desires to
designate another wholly-owned subsidiary of Clearwire to receive the License at
the Closing, it may do so at any time prior to the filing of the FCC Application
without restriction, or at any time after the filing of the FCC Application only
if such designation would not result in a delay in the FCC's consideration of
the FCC Application. Seller and Purchaser each will promptly and diligently
prepare, file and prosecute all necessary amendments, briefs, pleadings,
petitions for reconsideration, applications for review, waiver requests,
documents and supporting data, and take all such actions and give all such
notices as may be required or requested by the FCC or as may be appropriate to
expedite the grant of the FCC Application without conditions materially adverse
to Seller or Purchaser. If any person or entity petitions the FCC to deny the
FCC Application, or if the FCC grants such application and any person or entity
petitions for reconsideration or review of such grant before the FCC or appeals
or applies for review in any judicial proceeding, then Seller and Purchaser will
use their Reasonable Efforts to oppose such petition before the FCC or defend
such grant by the FCC. If the FCC denies the FCC Application or grants such
application with conditions materially adverse to Seller or Purchaser, then if
requested to do so by the other Party, Seller and Purchaser will use their
Reasonable Efforts to secure reconsideration or review of such action. If the
Closing has not occurred within 180 days following the date of the grant of the
FCC Application, Seller and Purchaser shall use Reasonable Efforts to obtain
such extensions of the effectiveness of such grant as is reasonably necessary to
permit the scheduling of Closing pursuant to Section 2.4. Purchaser will be
responsible for the payment of all FCC application filing fees incurred in
connection with this Section 5.7.
Section 5.8 Seller Affirmative Covenants. From the Effective Date until the
Closing Seller shall use Reasonable Efforts to (a) preserve the License; and (b)
comply with all Laws applicable to the License.
Section 5.9 Seller Negative Covenants. Subject to the requirements of WT
Docket No. 03-66, Seller shall not, and shall not enter into, any agreement,
arrangement or understanding to, or otherwise offer or commit to (a) sell,
transfer, assign, lease or dispose of the License or of the spectrum to be
covered by the License or any interests therein or portion thereof, or negotiate
therefore, or (b) create, incur or suffer to exist any Lien or other liability
on the License or the spectrum to be covered by the License or any interest
therein.
Section 5.10 Access. Subject to the provisions of Section 5.4 above
regarding confidentiality, between the date of this Agreement and the Closing
Date, Seller shall, during normal business hours and following reasonable
advance written notice from Purchaser (a) give Purchaser and its representatives
and advisors access to all books and records of Seller relating to the License;
(b) permit Purchaser and its representatives and advisors to make such
inspections thereof as Purchaser may reasonably request; and (c) cause the
officers and advisors of Seller to furnish Purchaser with such information with
respect to the License as Purchaser may from time to time reasonably request.
Section 5.11 Publicity. Neither Seller nor Purchaser shall issue any press
release or public announcement concerning this Agreement or the transactions
contemplated hereby without obtaining the prior written approval of the other
party hereto, which approval will not be unreasonably withheld or delayed,
unless disclosure is otherwise required by applicable Law, provided that, to the
extent required by applicable Law, the party intending to make such release
shall use its Reasonable Efforts consistent with such applicable Law to consult
with the other party with respect to the text thereof.
ARTICLE 6 CONDITIONS TO CLOSING
Section 6.1 Conditions to the Obligations of Both Parties. Each Party's
obligation to consummate the Transactions contemplated by this Agreement are
subject to the satisfaction or waiver, on or prior to the Closing Date, of each
of the following conditions, as applicable to the Party specified:
(a) The FCC shall have granted the FCC Application, such grant shall
have become Final Order, and such Final Order shall be in full force and
effect; and all other notices, filings and Consents required to be made or
obtained prior to the Closing by either Party or any of its respective
Affiliates with any Governmental Authority in connection with the execution
and delivery of this Agreement and the consummation of the Transactions
shall have been made or obtained.
(b) No preliminary or permanent injunction or other order, decree or
ruling issued by a Governmental Authority, nor any Law promulgated or
enacted by any Governmental Authority, shall be in effect that would impose
material limitations on the ability of either Party to consummate the
Transactions.
Section 6.2 Conditions to the Obligations of Seller. Seller's obligation to
consummate the Transactions contemplated by this Agreement are subject to the
satisfaction or waiver on or prior to the Closing Date of the following
conditions:
(a) The representations and warranties of Purchaser and Clearwire
contained herein shall be true and correct in all material respects (except
for representations and warranties that are qualified as to materiality,
which shall be true and correct) as of the Closing as if made on and as of
the Closing Date (except that representations and warranties that are made
as of a specific date need be so true and correct only as of such date),
and Seller shall have received certificates to such effect dated the
Closing Date and executed by a duly authorized officer of Purchaser and
Clearwire, respectively.
(b) The covenants and agreements of Purchaser and Clearwire to be
performed under this Agreement on or prior to the Closing shall have been
duly performed in all material respects, and Seller shall have received
certificates to such effect dated the Closing Date and executed by a duly
authorized officer of Clearwire and Purchaser, respectively.
(c) Purchaser and Clearwire having delivered to Seller the Purchase
Price pursuant to Section 2.3.
(d) If Seller is an Accredited Investor on the Closing Date and is to
receive Clearwire Stock pursuant to Section 2.3, Purchaser shall have
executed and delivered to Seller: (i) a joinder, attached hereto as Exhibit
C, to the Amended and Restated Stockholders Agreement, dated March 16,
2004, by and among Clearwire and Clearwire's stockholders; (ii) a joinder
to the Registration Rights Agreement, dated as of March 16, 2005, between
Clearwire Corporation and certain holders of Clearwire's Class A Common
Stock attached hereto as Exhibit F; and (iii) a side letter, attached
hereto as Exhibit G, with respect to the Registration Rights Agreement.
(e) Purchaser shall have executed and delivered to Seller an
Instrument of Assignment with respect to the License and the Interference
Agreements in the form of Exhibit B.
Section 6.3 Conditions to the Obligations of Purchaser. Purchaser's
obligation to consummate the Transactions contemplated by this Agreement are
subject to the satisfaction or waiver on or prior to the Closing Date of each of
the following conditions:
(a) The representations and warranties of Seller contained herein
shall be true and correct in all material respects (except for
representations and warranties that are qualified as to materiality, which
shall be true and correct) as of the Closing as if made on and as of the
Closing Date (except that representations and warranties that are made as
of a specific date need be so true and correct only as of such date), and
Purchaser shall have received certificates to such effect dated the Closing
Date and executed by a duly authorized officer of Seller.
(b) The covenants and agreements of Seller to be performed under this
Agreement on or prior to the Closing shall have been duly performed in all
material respects, and Purchaser shall have received a certificate to such
effect dated the Closing Date and executed by a duly authorized officer of
Seller.
(c) Seller shall have executed and delivered to Purchaser an
Instrument of Assignment with respect to the License and the Interference
Agreements in the form of Exhibit B.
(d) If Seller is an Accredited Investor on the Closing Date and is to
receive Clearwire Stock pursuant to Section 2.3, Seller shall have executed
and delivered to Clearwire: (i) a joinder, attached hereto as Exhibit C. to
the Amended and Restated Stockholders Agreement, dated March 16, 2004, by
and among Clearwire and Clearwire's stockholders; (ii) a joinder to the
Registration Rights Agreement, dated as of March 16, 2005, between
Clearwire Corporation and certain holders of Clearwire's Class A Common
Stock attached hereto as Exhibit F; and (iii) a side letter, attached
hereto as Exhibit G, with respect to the Registration Rights Agreement; and
(iv) a completed Stockholder Questionnaire in the form attached hereto as
Exhibit D.
(e) Seller shall have delivered to Purchaser a completed IRS Form W-9.
(f) Clearwire's board of directors shall have approved the
transactions contemplated by this Agreement.
ARTICLE 7 TERMINATION
Section 7.1 Termination. This Agreement may be terminated at any time:
(a) by mutual written consent of Purchaser and Seller;
(b) (i) by Seller if the board of directors of Clearwire has not
approved the transactions contemplated by this Agreement on or before
September 30,2005, (ii) by Purchaser if the board of directors of Clearwire
does not approve the transactions contemplated by this Agreement at its
next regularly scheduled board meeting after the date of this Agreement, or
(iii) by either Purchaser or Seller if (A) there shall be any law or
regulation that makes consummation of the Transactions illegal or otherwise
prohibited, or (B) any judgment, injunction, order or decree of any court
or other Governmental Entity having competent jurisdiction enjoining
Purchaser and Seller from consummating the Transaction is entered and such
judgment, injunction or order shall have become final and non-appealable;
(c) by any Party upon the material breach of any representation,
warranty or covenant in this Agreement by another Party if such breach is
not cured within ten (10) days following written notice by the
non-breaching Party which notice shall describe the breach; or
(d) by either Purchaser or Seller if the Closing has not occurred on
or before the first anniversary of the Effective Date, provided that the
failure to close on or before such date is not the fault of the terminating
Party.
Section 7.2 Effect of Termination. In the event of a termination of this
Agreement, neither Party shall have any liability or further obligation to the
other, except that
(a) Seller's obligation to return the Deposit as set forth in Section
2.2;
(b) nothing herein will relieve a Party from liability for any breach
by such Party of this Agreement; and
(c) the provisions of this Article 7, Article 8 and Article 9 shall
survive the termination of this Agreement. Whether or not Closing occurs,
all costs and expenses incurred in connection with this Agreement and the
Transactions shall be paid by the Party incurring such expenses.
ARTICLE 8 SURVIVAL AND REMEDIES
Section 8.1 Survival. The representations and warranties contained in this
Agreement, the Instrument of Assignment for License and any certificates given
by one or more Parties to any other Party as an incident to Closing the
Transactions of this Agreement shall survive the Closing until one (1) year
after the Closing Date and shall expire at such
time. The covenants and other agreements contained in this Agreement which do
not expire by their terms on or before the Closing shall survive the Closing
until the expiration of the applicable statute of limitations (including any
waivers or extensions thereof) with respect to such matters.
Section 8.2 Seller Indemnification. Seller shall indemnify Purchaser, its
representative members, managers, officers, employees, agents, successors and
assigns (the "Purchaser Indemnified Parties") and hold the Purchaser Indemnified
Parties harmless from and against any and all Damages based upon, attributable
to or resulting from:
(a) the failure of any representation or warranty of Seller set forth
in this Agreement, or any representation or warranty contained in any
certificate delivered by Seller pursuant to this Agreement, to be
materially true and correct as of the dates made;
(b) the material breach of any covenant or other agreement on the part
of Seller under this Agreement; and
(c) the ownership of the License and the Interference Agreements prior
to the Closing.
Section 8.3 Purchaser Indemnification. Purchaser shall indemnify Seller,
and Seller's representative members, managers, officers, employees, agents,
successors and assigns (collectively, the "Seller Indemnified Parties") and hold
the Seller Indemnified Parties harmless from and against any and all Damages
based upon, attributable to or resulting from:
(a) the failure of any representation or warranty of Purchaser set
forth in this Agreement, or any representation or warranty contained in any
certificate delivered by Purchaser or Clearwire pursuant to this Agreement,
to be materially true and correct as of the dates made;
(b) the breach of any covenant or other agreement on the part of
Purchaser under this Agreement; and
(c) the ownership of the License and the Interference Agreements
following the Closing.
Section 8.4 Indemnification Procedures.
(a) In the event that any claim shall be asserted by any Person in
respect of which payment may be sought under Section 8.2 or Section 8.3
hereof (each, a "Claim"), the indemnified party shall reasonably and
promptly cause written notice of the assertion of any Claim of which it has
knowledge which is covered by this indemnity to be forwarded to the
indemnifying party. The indemnifying party shall have the right, at its
sole option and expense, to be represented by counsel of its choice, which
must be reasonably satisfactory to the indemnified party, and to defend
against, negotiate, settle or otherwise deal with any Claim which relates
to any
Damages indemnified against hereunder. If the indemnifying party elects to
defend against, negotiate, settle or otherwise deal with any Claim which
relates to any Damages indemnified against hereunder, it shall within five
(5) days (or sooner, if the nature of the Claim so requires) notify the
indemnified party of its intent to do so. If the indemnifying party elects
not to defend against, negotiate, settle or otherwise deal with any Claim
which relates to any Damages indemnified against hereunder, fails to notify
the indemnified party of its election as herein provided or contests its
obligation to indemnify the indemnified party for such Damages under this
Agreement, the indemnified party may defend against, negotiate, settle or
otherwise deal with such Claim. If the indemnified party defends any Claim,
then the indemnifying party shall reimburse the indemnified party for the
expenses of defending such Claim upon submission of periodic bills. If the
indemnifying party shall assume the defense of any Claim, the indemnified
party may participate, at his or its own expense, in the defense of such
Claim; provided, however, that such indemnified party shall be entitled to
participate in any such defense with separate counsel at the expense of the
indemnifying party if (i) so requested by the indemnifying party to
participate or (ii) in the reasonable opinion of counsel to the indemnified
party, a conflict or potential conflict exists between the indemnified
party and the indemnifying party that would make such separate
representation advisable; and provided, further, that the indemnifying
party shall not be required to pay for more than one such counsel for all
indemnified parties in connection with any Claim. The Parties hereto agree
to cooperate fully with each other in connection with the defense,
negotiation, or settlement of any such Claim. The indemnifying party shall
not, without the express written consent of the indemnified party, settle
or compromise any Claim, or consent to the entry of any judgment against
the indemnified party that does include an unconditional term thereof
giving the indemnified party a full and complete release from all liability
with respect to such Claim.
(b) After any final judgment or award shall have been rendered by a
court, arbitration board or administrative agency of competent jurisdiction
and the expiration of the time in which to appeal therefrom, or a
settlement shall have been consummated, or the indemnified party and the
indemnifying party shall have arrived at a mutually binding agreement with
respect to a Claim hereunder, the indemnified party shall forward to the
indemnifying party notice of any sums due and owing by the indemnifying
party pursuant to this Agreement with respect to such matter.
(c) The failure of the indemnified party to give reasonably prompt
notice of any Claim shall not release, waive or otherwise affect the
indemnifying party's obligations with respect thereto except to the extent
that the indemnifying party can demonstrate actual loss and prejudice as a
result of such failure.
(d) Notwithstanding anything to the contrary in this Article 8 or
elsewhere in this Agreement, no Party shall be required to indemnify or
hold any other Party harmless under this Agreement or any certificates,
documents, agreements and instruments delivered pursuant to the terms of
this Agreement unless such right to indemnification or to be held harmless
is asserted by written notice from indemnified
Party or Parties to the indemnifying Party or Parties received within
twelve (12) months of the Closing Date describing with specificity the
facts giving rise to the asserted right. In no event shall Damages
collected by any one or more of Purchaser and Clearwire against Seller
exceed the amount of the Purchase Price. In no event shall Damages
collected by Seller against Purchaser and/or Clearwire exceed the amount of
the Purchase Price.
Section 8.5 Remedies. IN NO EVENT SHALL ANY PARTY BE LIABLE FOR INDIRECT,
SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES ARISING OUT OF A BREACH OF THIS
AGREEMENT, EVEN IF ADVISED AT THE TIME OF BREACH OF THE POSSIBILITY OF SUCH
DAMAGES, PROVIDED, HOWEVER, THAT THIS LIMITATION SHALL NOT APPLY TO THE RIGHT OF
INDEMNIFICATION BY A PARTY UNDER SECTIONS 8.2 AND 8.3 HEREOF FOR SUCH TYPES OF
DAMAGES UNDER A CLAIM MADE BY A THIRD-PARTY.
ARTICLE 9 MISCELLANEOUS
Section 9.1 Entire Agreement. This Agreement constitutes the entire
agreement between the Parties pertaining to the subject matter hereof and
thereof and supersedes all prior and contemporaneous agreements, understandings,
negotiations and discussions, whether oral or written, of the Parties with
respect to the subject matter hereof and thereof, except with regard to the
Letter Agreement, dated September 16,2004, referenced in Section 5.4 above.
Section 9.2 Amendments and Waivers. Any provision of this Agreement may be
amended or waived if, and only if, such amendment or waiver is in writing and
signed (in the case of an amendment) by Seller and Purchaser or (in the case of
a waiver) by the Party against whom the waiver is to be effective. No failure or
delay by any Party in exercising any right, power or privilege hereunder shall
operate as a waiver thereof nor shall any single or partial exercise thereof
preclude any other or further exercise thereof or the exercise of any other
right, power or privilege.
Section 9.3 Remedies Cumulative. Except as otherwise provided herein, all
rights, powers and remedies provided under this Agreement or otherwise available
in respect hereof at law or in equity shall be cumulative and not alternative,
and the exercise or beginning of the exercise of any thereof by a Party shall
not preclude the simultaneous or later exercise of any other such right, power
or remedy by such Party.
Section 9.4 Assignment. This Agreement shall be binding upon and shall
inure to the benefit of the Parties and their respective successors and
permitted assigns. This Agreement may not be assigned by any Party without the
prior written consent of the other Party; provided, however, that Purchaser may,
at any time prior to the Closing, assign this Agreement or Purchaser's right to
receive assignment of the License without the consent of Seller, but subject, in
all circumstances, to the limitations set forth in Section 5.7 above, and
further provided that Purchaser and Clearwire shall not be released from any
obligations hereunder as a result of such assignment.
Section 9.5 Notices. All notices or other communications hereunder shall be
in writing and shall be deemed to have been duly given or made (i) upon dehvery
if delivered personally (by courier, overnight delivery service or otherwise),
as evidenced by written receipt or other written proof of delivery (which may be
a printout of the tracking information of a courier or overnight dehvery service
that made such delivery) or (ii) upon delivery if sent by United States Postal
Service certified mail, return receipt requested, as evidenced by the written
receipt of delivery to the applicable addresses set forth below (or such other
address which any Party may from time to time specify):
If to Seller:
St. LouE, LLC
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: L. ▇▇▇▇▇▇ du Treil, Sr.
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy (which shall not constitute notice) to:
▇▇▇▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ PLC
▇▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇, Esq.
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
If to Purchaser:
Clearwire Spectrum Holdings LLC
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇. ▇.▇.
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇,▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to:
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
If to Clearwire:
Clearwire Corporation
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇. ▇.▇.
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to:
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Section 9.6 Governing Law; Waiver of Jury Trial.
(a) This Agreement shall be governed by, and construed in accordance
with, the internal laws of the State of Washington, without reference to
the choice of law principles thereof.
(b) THE PARTIES HEREBY IRREVOCABLY WAIVE ANY AND ALL RIGHT TO TRIAL BY
JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATED TO THIS AGREEMENT OR
THE TRANSACTIONS.
Section 9.7 Expenses. Except as otherwise expressly provided in this
Agreement, whether or not the Transactions are consummated, the Parties shall
bear their respective expenses (including, but not limited to, all compensation
and expenses of counsel, financial advisors, consultants, actuaries and
independent accountants) incurred in connection with this Agreement and the
Transactions. All filing fees required to be paid to any Governmental Authority
in connection with satisfying the conditions set forth in Section 5.7 will be
borne by Purchaser.
Section 9.8 Invalidity. In the event that any of the provisions contained
in this Agreement or in any other instrument referred to herein, shall for any
reason be held to be invalid, illegal or unenforceable in any respect, such
invalidity, illegality or unenforceability shall not affect any other provision
of this Agreement or such other instrument and such provision will be
ineffective only to the extent of such invalidity, illegality or
unenforceability, unless the consummation of the Transactions is impaired
thereby.
Section 9.9 Counterparts. This Agreement may be executed and delivered
(including by facsimile transmission) in one or more counterparts, each of which
shall be deemed an original, but all of which together shall constitute one and
the same instrument.
Section 9.10 Headings. The headings of the Articles and Sections herein are
inserted for convenience of reference only and are not intended to be a part of
or to affect the meaning or interpretation of this Agreement.
[SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, the Parties have duly executed this Agreement as of the
date first above written.
ST. LOUE, LLC
By: /s/ L. ▇▇▇▇▇▇ du Treil Sr.
------------------------------------
Name: L. ▇▇▇▇▇▇ du Treil, Sr.
Title: Sole Member
CLEARWIRE CORPORATION
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Executive Vice-President
CLEARWIRE LLC SPECTRUM HOLDINGS LLC
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Executive Vice-President
EXHIBIT A
LICENSE
[INSERT COPY OF LICENSE HERE]
Exhibit A
EXHIBIT B
INSTRUMENT OF ASSIGNMENT
INSTRUMENT OF ASSIGNMENT (the "Instrument of Assignment"), dated as of
______________________, 2005, by and between St. LouE, LLC, a Delaware limited
liability company ("Assignor"), and Clearwire Spectrum Holdings LLC, a Nevada
limited liability company ("Assignee"). Capitalized terms used herein without
definition shall have the respective meanings assigned to them in the Purchase
Agreement (as defined below).
WHEREAS, Assignor and Assignee have entered into a Purchase Agreement (the
"Purchase Agreement"), dated as of September 9, 2005, pursuant to which,
Assignor agreed to convey to Assignee, and Assignee agreed to acquire, the
License ***
WHEREAS, Assignor and Assignee have filed an application with the FCC
requesting the assignment of the certain license to Assignee; and
WHEREAS, the FCC has granted an application for the assignment of the
License to Assignee;
NOW, THEREFORE, in consideration of the promises and the mutual
representations, warranties, covenants, conditions, and agreements hereinafter
set forth, the Parties agree as follows:
1. Assignment. Pursuant to Section 2 of the Purchase Agreement, for
valuable consideration, receipt of which is hereby acknowledged, Assignor,
intending to be legally bound, does hereby sell, assign, transfer, convey,
and deliver to Assignee, its successors and assigns forever, all right and
interest of Assignor in and to the License and the Interference Agreements,
free and clear of all Liens.
2. Terms of Purchase Agreement Control. Nothing contained in this
Instrument of Assignment shall in any way supersede, modify, replace,
amend, change, rescind, waive, exceed, expand, enlarge, or in any way
affect the provisions of the Purchase Agreement, including the warranties,
covenants, agreements, conditions and representations contained in the
Purchase Agreement and, in general, any of the rights and remedies, and any
of the obligations and indemnifications, of Assignor or Assignee set forth
in the Purchase Agreement. Without limiting the generality of the
foregoing, this instrument is subject to the limitations of liability in
Article 8 and, particularly, Section 8.4(d).
3. Miscellaneous. This Instrument of Assignment (a) is executed
pursuant to the Purchase Agreement and may be executed in counterparts,
each of which as so executed shall be deemed to be an original, but all of
which together shall constitute one instrument, (b) shall be governed by
and in accordance with the internal laws of the State of Washington,
without regard to the principles of conflicts of law thereof and (c) shall
be binding upon and inure to the benefit of the Parties hereto and their
respective successors and permitted assigns.
Exhibit B - 1
IN WITNESS WHEREOF, Assignor and Assignee have each caused this Instrument
of Assignment to be duly executed and delivered as of the date first above
written.
ST. LOUE, LLC
By:
------------------------------------
Name: L. ▇▇▇▇▇▇ du Treil, Sr.
Title: Sole Member
CLEARWIRE SPECTRUM HOLDINGS
LLC
By:
-----------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Executive Vice-President
Exhibit B - 2
EXHIBIT C
JOINDER TO AMENDED AND RESTATED STOCKHOLDERS AGREEMENT
Exhibit C
JOINDER IN STOCKHOLDERS AGREEMENT
This Joinder in Stockholders Agreement ("Joinder") is made and entered into
this ____________________ day of ______________, 2005, by and between Clearwire
Corporation, a Delaware corporation (the "Company"), and the party whose
signature appears below (the "Joining Party").
RECITALS:
WHEREAS, the Joining Party has acquired or intends to acquire shares of capital
stock of the Company; and
WHEREAS, pursuant to Section 13.09 of that certain Amended and Restated
Stockholders Agreement, between the Company and its stockholders, dated as of
March 16, 2004 (the "Stockholders Agreement"), the Joining Party may become a
party to the Stockholders Agreement by execution of an instrument such as this
Joinder.
NOW, THEREFORE, the Joining Party agrees as follows:
1. JOINDER
By execution of this Joinder by the Joining Party and acceptance hereof by
the Company, the Joining Party is and agrees to become a party to, subject to
all the conditions, restrictions, obligations and duties of a Stockholder of the
Company under the Stockholders Agreement, including the restrictions on transfer
of the shares acquired from the Company and the requirement that the Joining
Party vote its shares in accordance with the terms thereof.
2. AGREEMENT TO BE BOUND BY AGREEMENT
This Joinder shall in all respects, including all matters of construction,
validity and performance, be governed by, and construed and enforced in
accordance with, the laws of the State of Delaware, without reference to any
rules governing conflicts of laws.
3. COUNTERPARTS
This Joinder may be executed in any number of counterparts, each of which
shall be an original, but all of which together shall constitute one instrument.
COMPANY: JOINING PARTY:
By: By:
--------------------------------- ------------------------------------
Name: Name:
-------------------------------- ----------------------------------
Title: Title:
------------------------------ ---------------------------------
Date: Date:
------------------------------- ----------------------------------
1
EXHIBIT D
STOCKHOLDER QUESTIONNAIRE
Exhibit D
(CLEARWIRE LOGO)
INVESTOR QUALIFICATION QUESTIONNAIRE
Name of Investor:__________
The purpose of this Investor Qualification Questionnaire ("Questionnaire")
is to assist Clearwire Corporation, a Delaware corporation (the "Company"), in
determining that the offer and sale of the Company's securities (the
"Securities") to the undersigned prospective investor (the "Investor") is exempt
from registration under applicable federal and state securities laws. This
Questionnaire is not a subscription agreement and satisfaction of the criteria
provided herein (i) does not obligate the Company to accept any subscription by
the Investor in the Securities; and (ii) does not mean that the Securities are
an appropriate investment for the Investor.
ALL INFORMATION CONTAINED IN THIS QUESTIONNAIRE IS TO BE TREATED
CONFIDENTIALLY. All information that the undersigned furnishes hereunder is for
the sole use of the Company and counsel or other professional advisors to the
Company and will be held in confidence, except that this Questionnaire may be
furnished to such parties as the Company and its counsel may deem desirable to
establish compliance with federal or any applicable state securities laws.
INSTRUCTIONS
1. All prospective investors of the Company must complete Part I of this
questionnaire.
2. To participate in the offering of the Securities, prospective investors
must qualify as "accredited investors" as such term is defined in Rule
501(a) of Regulation D of the Securities Act of 1933, as amended (the
"Act"). Part II sets forth several ways for a purchaser to qualify as an
accredited investor. Each prospective investor must carefully read and
initial the applicable line on Part II, if any.
3. All prospective investors must carefully read and sign Part III where
indicated.
Any questions about this questionnaire should be raised with ▇▇▇ ▇▇▇▇▇, the
Company's Executive Vice President of Corporate Affairs, at (▇▇▇) ▇▇▇-▇▇▇▇.
Page 1 - INVESTOR QUALIFICATION QUESTIONNAIRE
PART I - BACKGROUND INFORMATION
Full Name (No Initials) ________________________________________________________
State of Residence:____________________ U.S. citizen? [ ] Yes [ ] ▇▇
▇▇▇ ▇▇▇ # / ▇▇▇▇▇▇▇▇ ▇▇ #: ____________ Home Tel:_______________________________
________________________________________________________________________________
Home Address (P.O. Box NOT acceptable) City State Zip
Email address:____________________________________
POTENTIAL INVESTORS WHO ARE ENTITY INVESTORS SHOULD COMPLETE THE FOLLOWING:
Type of Entity (check one): [ ] Corporation [ ] Partnership
[ ] Trust [ ] Limited Liability Company
[ ] Other _________________________
________________________________________________________________________________
Entity Name
________________________________________________________________________________
Business Purpose
_____________________________________ ________________________________________
Year Formed Place of Organization
________________________________________________________________________________
Name of individual making investment decisions
FOR ALL ENTITIES: Please attach (1) a copy of the Articles of Incorporation,
Bylaws, Company Agreement, or Trust Instrument; and (2) a document showing that
the individual signing the subscription agreement is authorized to take such
action on behalf of the entity.
Page 2 - INVESTOR QUALIFICATION QUESTIONNAIRE
THE FOLLOWING SHOULD BE COMPLETED BY POTENTIAL INVESTORS WHO ARE INDIVIDUALS.
Employment Information:
________________________________________________________________________________
Employer/Company Name Occupation Business Tel
Length of employment in current position _________________
________________________________________________________________________________
Business Address (P.O. Box unacceptable) City State Zip
________________________________________________________________________________
Nature of employer's business
If you have had more than one job in the last five years, give the following
information with respect to each job:
Employer Nature of Business Position
-------- ------------------ --------
________ __________________ ________
________ __________________ ________
________ __________________ ________
________ __________________ ________
________ __________________ ________
Describe any other business connections reflecting knowledge and experience of
financial matters (service on boards of directors, professional licenses, etc.):
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
Indicate educational background:
Schools Attended Degree(s) Year(s)
---------------- --------- -------
________________ _________ _______
________________ _________ _______
________________ _________ _______
________________ _________ _______
Page 3 - INVESTOR QUALIFICATION QUESTIONNAIRE
PART II - ACCREDITED INVESTOR INFORMATION
ITEM A: Accredited individual investors must initial one or more of the
following statements:
_____ The undersigned hereby certifies that he or she has individual income in
excess of $200,000 U.S. dollars or joint income with a spouse in excess
of $300,000 in each of the two most recent years, and the undersigned
has a reasonable expectation of reaching the same income level in the
current year.
_____ The undersigned hereby certifies that he or she has an individual net
worth, or joint net worth with his or her spouse, in excess of
$1,000,000.
ITEM B: Accredited entity investors must initial one or more of the following
statements:
_____ The undersigned entity hereby certifies that it is an accredited
investor because it has total assets in excess of $5,000,000 and was not
formed for the specific purpose of investing in the Company.
_____ The undersigned entity hereby certifies that it is an accredited
investor because each of its equity owners are accredited investors as a
result of either (i) his or her net worth equals or exceeds $1,000,000,
or (ii) his or her annual net income equals or exceeds $200,000
individually, or $300,000 jointly with his or her spouse. If the
undersigned initialed this statement and did not initial the preceding
statement, please list below the names of all equity owners and the
manner in which they qualify as accredited investors (initial
appropriate categories). Each equity owner must also complete Parts I,
II and III of this questionnaire and sign a signature page hereof
Income exceeds
Name of Net Worth $200,000 (individually)
All Equity Owners Exceeds $1,000,000 or $300,000 (jointly)
----------------- ------------------ -----------------------
____________________________________________ [__] [__]
____________________________________________ [__] [__]
____________________________________________ [__] [__]
____________________________________________ [__] [__]
(Attach additional sheet(s) if necessary)
Page 4 - INVESTOR QUALIFICATION QUESTIONNAIRE
PART III - CERTIFICATION
By signing this Questionnaire, the undersigned hereby certifies and warrants as
follows:
1. The undersigned understands that the representations contained on this page
are made for the purpose of qualifying the undersigned as an investor in
this offering under applicable rules and regulations of the Securities and
Exchange Commission for the purpose of inducing a sale of securities to the
undersigned. The undersigned hereby represents that the statement or
statements initialed or otherwise made above are true, correct and complete
in all respects. The undersigned understands that a false representation
may constitute a violation of law, and that any person who suffers damage
as a result of a false representation may have a claim against the
undersigned for damages; and
2. The undersigned is not now, and does not contemplate that he, she, or it
will be, required to dispose of the Securities to satisfy any existing or
expected undertaking of indebtedness.
3. The undersigned is able to bear the economic risk of an investment in the
Securities as well as the restriction on his, her or its ability to sell or
transfer the Securities for an indefinite period of time because they will
not be registered under the Act or applicable state securities laws, and
therefore cannot be sold, transferred, pledged or otherwise disposed of or
encumbered unless subsequently registered pursuant to the Act or an
exemption from such registration is available.
4. The undersigned understands that this Questionnaire is not an offer to sell
or a sale of any Securities. This questionnaire is required to ensure that
the offering of the Company's securities comply with the United States
securities laws and regulations on private placements and investment
advisory services; and
5. The undersigned realizes that the Company is relying on the representations
made above in offering and selling the Securities to the undersigned, and
hereby certifies and affirms the truth and complete accuracy of these
representations.
Dated:
------------------------------
(Signature for Individual Investor)
------------------------------------ ----------------------------------------
Print or Type Name of Investor Signature of Investor
(Signature for Corporate,
Partnership, Trust or other Entity
Investor)
------------------------------------- By
(Print Name of Entity) -------------------------------------
Print Name:
----------------------------
Title:
---------------------------------
Page 5 - INVESTOR QUALIFICATION QUESTIONNAIRE
EXHIBIT E
INTERFERENCE AGREEMENTS
1. Interference Avoidance Agreement, executed in 1995, by and among Silex ▇-▇
School District, Gasconade County ▇-▇ School District, Wellsville-Middletown ▇-▇
School District, ▇▇▇▇▇▇ County R-3 School District, Van-Far ▇-▇ School District,
RuralVision Central, Inc., Heartland Wireless Communications, Inc., St. Louis
Regional Educational & Public Television Commission, HITEC, Inc., St. Louis
Community College, Instructional Opportunities, Inc., ▇▇▇▇▇ ▇. du Treil,
Baypoint TV, Inc., Missouri Baptist College, ITFS, Inc., Cooperating School
Districts of St. Louis Suburban Area, St. Louis Police Department, ▇▇▇▇
Multichannels, Ltd., Westinghouse Broadcasting Co., Inc. and People's Choice TV
Corp.
2. Interference Avoidance Agreement, executed in 1995, by and among St. Louis
Regional Educational & Public Television Commission, HITEC, Inc., St. Louis
Community College, Instructional Opportunities, Inc., ▇▇▇▇▇ ▇. du Treil,
Baypoint TV, Inc., Missouri Baptist College, ITFS, Inc., Cooperating School
Districts of St. Louis Suburban Area, St. Louis Police Department, ▇▇▇▇
Multichannels, Ltd., Westinghouse Broadcasting Co., Inc., People's Choice TV
Corp., Christian Fellowship School, De ▇▇▇▇ Consolidated School District,
Nashville Community School District #9, Waltonville Community ▇▇▇▇ #▇,
▇▇▇▇▇▇-▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ #▇▇▇ and Heartland Wireless Communications, Inc.
3. Interference Avoidance Agreement, executed in 1995, by and among ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ #▇▇▇, Patoka Community Unit School District #100,
Altamont Community Unit School District #10, Mulberry Grove Community Unit
School District, Salem Community High School, Heartland Wireless Communications,
Inc., St. Louis Regional Educational & Public Television Commission, HITEC,
Inc., St. Louis Community College, Instructional Opportunities, Inc., ▇▇▇▇▇ ▇.
du Treil, Baypoint TV, Inc., Missouri Baptist College, ITFS, Inc., Cooperating
School Districts of St. Louis Suburban Area, St. Louis Police Department, ▇▇▇▇
Multichannels, Ltd., Westinghouse Broadcasting Co. Inc., and People's Choice TV
Corp.
4. Interference Avoidance Agreement, executed in 1995, by and among Odin High
School, KasKaskia Cikkege District, ▇▇▇▇▇▇ Township High School District #204,
Mt. ▇▇▇▇▇▇ Township High School District #▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ #▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Unit School District #200, Southern Illinois
Wireless Cable Company, Salem Mobile & Modular Home Sales, ▇▇▇▇▇▇
City-Omaha-Enfield County Unit School District #3, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Heartland
Wireless Communications, Inc., St. Louis Regional Educational & Public
Television Commission, HITEC, Inc., St. Louis Community College, Instructional
Opportunities, Inc., ▇▇▇▇▇ ▇. du Treil, Baypoint TV, Inc., Missouri Baptist
College, ITFS, Inc. Cooperating School Districts of St. Louis Suburban Area, St.
Louis Police Department, ▇▇▇▇ Multichannels, Ltd., Westinghouse Broadcasting
Co., Inc. and People's Choice TV Corp.
5. Interference Agreement, dated ______________________, by and between Baypoint
St. Louis, LLC, and St. LouE, LLC.
Exhibit E
EXHIBIT F
JOINDER TO REGISTRATION RIGHTS AGREEMENT
Exhibit
JOINDER
In consideration of the permitted issuance, sale, pledge, or other transfer
to the undersigned of Registrable Securities in the Company, the undersigned
hereby consents and agrees to become a party to and be bound by the Registration
Rights Agreement dated as of the 16th day of March, 2004, as amended, receipt of
a copy of which is hereby acknowledged, as fully as if the undersigned were one
of its original parties, and all of the Registrable Securities owned by the
undersigned will be held in accordance with and restricted by the terms of such
Registration Rights Agreement.
Dated:
-------------------------
Name of Stockholder:
----------------------------------------
Sign Name:
----------------------------------------
Print Name:
----------------------------------------
Address:
----------------------------------------
----------------------------------------
----------------------------------------
SSN/EIN:
----------------------------------------
Approved by the Company:
COMPANY: CLEAR WIRE CORPORATION
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Dated:
---------------------------------
1
EXHIBIT G
SIDE LETTER REGARDING REGISTRATION RIGHTS
[Clearwire Letterhead]
MMDS Ft. ▇▇▇▇▇, Inc.
[Name]
[Address]
Re: Market Standoff Agreement
Dear [Name]: ___________________
Reference is made to that certain Purchase Agreement (the "Purchase Agreement"),
dated September __, 2005, between [_________________________] ("Seller") and
Clearwire Spectrum Holdings LLC. The Purchase Agreement provides that, at the
Closing (as defined in the Purchase Agreement), Seller will become a party to
that Registration Rights Agreement, dated as of March 16, 2004, between
Clearwire Corporation ("Clearwire") and certain holders of Clearwire's Class A
Common Stock (the "Registration Rights Agreement"). As a condition to entering
into the Registration Rights Agreement, Clearwire has agreed to deliver this
side letter to Seller.
Clearwire agrees that it will not impose any selling and/or other transfer
restrictions under Section 9 of the Registration Rights Agreement on Seller
unless, and to the extent that, Clearwire is requested to impose such
restrictions on its stockholders by an underwriter of capital stock or other
securities of Clearwire in connection with Clearwire's initial public offering.
The foregoing shall not modify Seller's obligation under Section 9 of the
Registration Rights Agreement to execute a separate agreement agreeing to be
bound by such restrictions if requested to do so by such underwriter(s) or
Clearwire's ability to impose stop-transfer instructions with respect to any
shares subject to such restrictions.
Sincerely,
Clearwire Corporation
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Executive Vice President
Accepted and agreed:
[______________________]
By:
--------------------------------
Name:
------------------------------
Title:
-----------------------------
Date:
------------------------------