EXHIBIT 10.48
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AMENDED AND RESTATED
LIMITED LIABILITY COMPANY AGREEMENT
of
CLEARWIRE HAWAII PARTNERS LLC
by and between
CLEARWIRE US LLC
and
SHICHININ, LLC
Dated as of July 12, 2006
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This AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT, dated as of
July 12, 2006, by and between Clearwire US LLC, a Nevada limited liability
company ("Clearwire") and Shichinin, LLC, a Delaware limited liability company
("Hawaiian Member"), and supersedes in its entirety the limited liability
company agreement of Clearwire Hawaii Partners LLC dated July 11, 2006.
WHEREAS, Hawaiian Member formed Clearwire Hawaii Partners LLC (the
"Company") on July 7, 2006 and executed a subscription agreement, dated July 11,
2006 (the "Subscription Agreement") whereby Hawaiian Member has committed to
contribute Fifteen Million Dollars ($15,000,000.00) within 60 days after the
date of formation of the Company;
WHEREAS, in order to take advantage of their combined resources and
experience with respect to the ownership and operation of wireless
communications systems, Clearwire wishes to purchase a membership interest in
the Company and to enter into an Amended and Restated Limited Liability Company
Agreement which sets forth their mutual understandings and agreements with
respect to the Company and their interests therein;
NOW, THEREFORE, in consideration of the mutual promises and covenants
herein contained, it is hereby agreed as follows:
ARTICLE 1
GENERAL
Section 1.1. Name
The name of the Company is CLEARWIRE HAWAII PARTNERS LLC.
Section 1.2. Principal Place of Business; Registered Office and Agent.
(a) The Company's principal office and place of business is located at
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇. ▇.▇., ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇. The
principal office and place of business may be changed from time to time,
and other offices and places of business may be established from time to
time, by the Manager with notice to the Members.
(b) The address of the registered office of the Company in the State
of Delaware shall be ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇, ▇▇▇, ▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ or such other address as the Manager may determine from time to
time. The registered agent for service of process on the Company shall be
Corporation Services Company or such other agent as the Manager may
determine from time to time.
Section 1.3. Term.
The term of the Company shall commence on July 12, 2006 and, unless sooner
terminated in accordance with the terms hereof, shall be perpetual.
Section 1.4. Purpose and Powers.
(a) The purposes of the Company shall be to acquire, develop, own and
operate certain assets for the provision of wireless broadband services
within the State of Hawaii (the "Business") and includes any reasonable
extensions or modifications thereof.
(b) The foregoing provisions of this Section 1.4 may be modified by
the affirmative vote or consent of the holders of a Majority in Interest of
the Members. The foregoing provisions of this Section 1.4 shall not be
construed to authorize the Company to, and the Company shall not, and the
Members agree that the Company shall not, engage in any activities other
than the foregoing (and in particular any activities expanding or changing
the scope of the Business beyond that contemplated by the definition
thereof) without the consent of the holders of a Majority in Interest,
which they may withhold in their sole discretion.
Section 1.5. Filings.
The Manager shall cause to be executed, filed and published all such
certificates, notices, statements or other instruments, and amendments thereto,
under the laws of the State of Washington, Delaware, and Hawaii and other
applicable jurisdictions as the Manager may deem necessary or advisable for the
operation of the Company.
Section 1.6. Sole Agreement.
The parties intend that their obligations to each other and the scope of
their joint enterprise be as set forth in this Agreement, and that no further
authority to bind the other or the Company or any liabilities to each other or
any third party be inferred from the relationships described in such agreements.
Section 1.7. Definitions.
Capitalized terms used in this Agreement without other definition shall,
unless expressly stated otherwise, have the respective meanings specified in
this Section 1.7.
"Act" means the Delaware Limited Liability Company Act, 6 Del. C. Section
18.101 et seq., as the same may be amended or replaced from time to time.
"Adjustment Date" means the closing date of a sale of a majority of the
stock or all or substantially all of the assets in (i) Clearwire Corporation or
(ii) a Clearwire Affiliate.
"Affiliate" means, when used with reference to a specified Person, (i) any
Person that directly or indirectly controls or is controlled by or is under
common control with the specified Person, and (ii) any Person that is an officer
or director of, a manager of, a general partner in or a trustee of, or serves in
a similar capacity with respect to, the specified Person or any Person described
in clause (i) or of which the specified Person or any Person described in clause
(i) is a director, officer, general partner, manager or
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trustee, or with respect to which the specified Person or any Person described
in clause (i) serves in a similar capacity; provided, that the Company shall be
deemed not to be an Affiliate of any of the Members or any of their respective
Affiliates. For purposes of this Section 1.7., the term "control" (including the
terms "controlling," "controlled by" and "under common control with") of a
Person means the possession, direct or indirect, of the power to (i) vote 50% or
more of the Units of such Person or (ii) direct or cause the direction of the
management and policies of such Person, whether by contract or otherwise.
"Agents" is defined in Section 6.5(a).
"Agreement" means this Limited Liability Company Agreement, as amended,
modified, supplemented or restated from time to time.
"Alternative Rights Notice" is defined in Section 7.6(a).
"Alternative Transaction" is defined in Section 7.6(a).
"Alternative Transaction Purchase Price" is defined in Section 7.6(a).
"Assignment and Assumption Agreement" is defined in Section 2.2(a).
"Bankruptcy" means with respect to any Member:
(i) the filing by such Member of a voluntary petition seeking
liquidation, dissolution, reorganization, rearrangement, readjustment
or similar relief, in any form, of its debts under the Federal
Bankruptcy Code (or corresponding provisions of future laws) or any
other bankruptcy or insolvency law, or such Member's filing an answer
consenting to, or acquiescing in any such petition, or the
adjudication of such Member as a bankrupt or insolvent;
(ii) the making by such Member of an assignment for the benefit
of its creditors or any similar action for the benefit of creditors,
or the admission by such Member in writing of its inability to pay its
debts as they mature;
(iii) the expiration of sixty (60) days after the filing of an
involuntary petition under the Federal Bankruptcy Code (or
corresponding provisions of future laws) or any other bankruptcy or
insolvency law, an application for the appointment of a receiver for
the assets of such Member, or an involuntary petition seeking
liquidation, dissolution, reorganization, rearrangement or
readjustment of its debts or similar relief under any bankruptcy or
insolvency law, provided that the same shall not have been vacated,
set aside or stayed within such sixty (60)-day period;
(iv) the giving of notice by such Member to any Governmental
Authority of insolvency or pending insolvency or suspension or pending
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suspension of operations;
(v) the appointment (or such Member's seeking or acquiescing in
such appointment) of any trustee, receiver, conservator or liquidator
of such Member of all or any substantial part of its properties or its
interest in the Company; or
(vi) the entry of an order for relief against such Member under
the Federal Bankruptcy Code (or corresponding provisions of future
laws) or any other bankruptcy or insolvency law.
The foregoing is intended to supersede and replace the events listed in Section
25.15.130 (1) (d) and (e) of the Act.
"▇▇▇▇ of Title Transfer" is defined in Section 2.2(a).
"Book Value" means (a) with respect to any property contributed to the
Company by a Member, the fair market value of such property reduced (but not
below zero) by all Depreciation with respect to such property charged to the
Members' Capital Accounts and (b) with respect to any other asset of the
Company, the adjusted basis of such property for federal income tax purposes,
all as of the time of determination, and subject to adjustment pursuant to
Section 2.1(b).
"Business" is defined in Section 1.4(a).
"Capital Account" is defined in Section 2.1(a).
"Change of Control" is defined in Section 7.9.
"Claim" is defined in Section 10.3(a).
"Clearwire Assets" is defined in Section 2.2(b).
"Clearwire Seller" is defined in Section 7.6(a).
"Code" means the Internal Revenue Code of 1986, as amended from time to
time.
"Company" is defined in the second paragraph of this Agreement.
"Confidential Information" means all documents and information concerning
the Company and/or its Subsidiaries, the Members or their Affiliates, furnished
to a Member or its Affiliate in connection with the transactions leading up to
and contemplated by this Agreement and the operation of the Company and/or its
Subsidiaries.
"Consent" means any consents and approvals of Governmental Authorities or
other third parties necessary to authorize, approve or permit the parties hereto
to consummate the Transactions and for the Company to operate its business.
"Contribution Option" is defined in Section 2.3(a).
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"Deficit Capital Account" means, with respect to any Member, the deficit
balance, if any, in such Member's Capital Account as of the end of the taxable
year, after giving effect to the following adjustments:
(i) credit to such Capital Account any amount that such Member is
obligated to restore to the Company under Regulation Section
1.704-1(b)(2)(ii)(c), as well as any addition thereto pursuant to the
next to last sentences of Regulation Sections 1.704-2(g)(1) and
(i)(5); and
(ii) debit to such Capital Account the items described in
Regulation Section 1.704-1(b)(2)(ii)(d)(4), (5) and (6).
This definition is intended to comply with the provisions of Regulation
Sections 1.704-1(b)(2)(ii)(d) and 1.704-2, and shall be interpreted consistently
with those provisions.
"Depreciation" means, for each fiscal year or other period, an amount equal
to the depreciation, amortization or other cost recovery deduction allowable
with respect to an asset for such year or other period for federal income tax
purposes; provided, that if the Book Value of an asset differs from its adjusted
basis for federal income tax purposes at the beginning of any such year or other
period, Depreciation shall be an amount that bears the same relationship to the
Book Value of such asset as the depreciation, amortization, or other cost
recovery deduction computed for federal income tax purposes with respect to such
asset for the applicable period bears to the adjusted tax basis of such asset at
the beginning of such period, or, if such asset has a zero adjusted tax basis,
Depreciation shall be an amount determined under any reasonable method selected
by the Manager.
"Distributable Cash" means, as of the end of any fiscal period, the excess
of the cash and cash equivalents held by the Company and its Subsidiaries over
the aggregate amount of any reserves established by the Manager (in accordance
with sound business practice) to fund the Company's reasonably anticipated cash
requirements.
"Drag Notice" is defined in Section 7.2.
"Drag Rights" is defined in Section 7.2.
"Equity Interests" means capital stock, partnership interests, limited
liability company interests or other ownership or beneficial interests of any
Person.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Fair Market Value" means, with respect to any asset, as of the date of
determination, the cash price at which a willing seller would sell and a willing
buyer would buy, each being apprised of all relevant facts and neither acting
under compulsion, such asset in an arm's-length negotiated transaction with an
unaffiliated third party without time constraints. Without limiting the
foregoing the Fair Market Value of any Unit shall be the Fair Market Value of
the Company, taken as a whole, divided by the
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total outstanding Units of the Company, as of the date of the determination.
Except as otherwise provided in Section 7.6, Fair Market Value shall be
determined in accordance with Section 7.9.
"FCC" means the Federal Communications Commission or any successor agency
or entity performing substantially the same functions.
"FCC Law" means the Communications Act of 1934, as amended (including as
amended by the Telecommunications Act of 1996), and the rules, regulations and
policies promulgated thereunder.
"GAAP" means generally accepted accounting principles as used by the
Financial Accounting Standards Board and/or the American Institute of Certified
Public Accountants.
"Governmental Authority" means a national, state, provincial, county, city,
local or other governmental or regulatory body or authority, whether domestic or
foreign.
"Immediate Family" means, with respect to any Person, such Person's spouse,
parents, siblings and children, and such Person's spouse's parents, siblings and
children.
"Indemnified Party" is defined in Section 10.1(b).
"Indemnifying Party" is defined in Section 10.3(a).
"Indenture" means that certain Indenture dated as of August 5, 2005, as
subsequently amended, among Clearwire, Clearwire LLC, Fixed Wireless Holdings,
LLC, NextNet Wireless, Inc., and The Bank of New York, as Trustee.
"Initiating Members" is defined in Section 6.8(e).
"Information Rights Member" means a Member holding at least 5% of the
outstanding Units in the Company.
"Interest" means the Membership Interest of a Member, and includes the
entire legal and equitable ownership interest of a Member in the Company.
"Law" means applicable common law and any statute, ordinance, code or other
law, rule, permit, permit condition, regulation, order, decree, technical or
other standard, policy, opinion, requirement or procedure enacted, adopted,
promulgated, applied or followed by any Governmental Authority.
"License" means a license, permit, certificate of authority, waiver,
approval, certificate of public convenience and necessity, registration or other
authorization, consent or clearance to construct or operate a facility
(including any emissions, discharges or releases therefrom), to transact an
activity or business, to construct a tower or to use an asset or process, in
each case issued or granted by a Governmental Authority.
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"Lien" means, with respect to any asset, any mortgage, lien, pledge,
charge, security interest, right of first refusal or other right of others
therein, or encumbrance of any nature whatsoever in respect of such asset.
"Liquidator" is defined in Section 9.3(b).
"Majority in Interest" means, with respect to any matter, any combination
of Members who, in the aggregate, own greater than 50% of the outstanding Units
of the Company.
"Manager" is defined in Section 6.1.
"Material Adverse Effect" means a material adverse effect on the business,
financial condition, assets, liabilities or results of operations or prospects
of the Person specified.
"Member" means Clearwire, Hawaiian Member and/or any Person who, at the
time of the reference thereto, has been admitted to the Company as a Member in
accordance with the terms of this Agreement and has not ceased to be a Member
hereunder, in such Person's capacity as a member (within the meaning of the Act)
of the Company.
"Membership Interest" means all of a Member's share in the net profits, net
losses, and other items of income or loss of the Company and distributions of
the Company's assets pursuant to this Agreement, based on the percentage of
outstanding Units owned by that Member, and all of a Member's rights to
participate in the management or affairs of the Company, including the right to
vote on, consent to or otherwise participate in any decision of the Members.
"Neutral Bank" means the internationally recognized investment banking firm
selected as follows: (a) Clearwire shall initially propose a slate of three
firms; and (b) from such slate Hawaiian Member shall select the firm.
"Non-Tax Distributions" means all distributions to a Member other than
distributions intended (as determined in good faith by the Manager) to provide
cash for the payment of such Member's federal income taxes based solely on such
Member's distributive share of the Company's income.
"Offer" is defined in Section 7.4.
"Option Amount" is defined in Section 2.3(a).
"Percentage Interest" means, with respect to a Unit Holder on a particular
date, a fraction, expressed as a percentage, the numerator of which is the
number of Units held by such Unit Holder on such date and the denominator of
which is the total number of Units then outstanding.
"Person" means any individual, corporation, partnership, firm, joint
venture,
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limited liability company, limited liability partnership, association, joint
stock company, trust, estate, incorporated or unincorporated organization,
Governmental Authority, or other entity.
"Presenting Member" is defined in Section 6.6(b).
"Remaining Members" is defined in Section 6.8(e).
"Reporting Entities" is defined in Section 5.7.
"SEC" means the Securities and Exchange Commission.
"▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act" is defined in Section 5.7.
"Selling Member" is defined in Section 7.6(a).
"Significant Event" is defined in Section 6.3(a).
"Significant Matter" is defined in Section 6.3(a).
"Subscription Agreement" is defined in the Preamble.
"Subsidiary" means, when used with respect to a specified Person, any other
Person of which at least 50% of the Equity Interests are owned, directly or
indirectly, through one or more intermediaries by the specified Person.
"Tag Notice" is defined in Section 7.3.
"Tax Matters Partner" is defined in Section 5.6(d).
"Transactions" means the transactions contemplated by this Agreement.
"Treasury Regulations" means temporary and final regulations issued by the
United States Department of the Treasury pursuant to the Code.
"Unit Holder" means a Person who is the owner of Unit(s) in the Company.
"Units" means each of the 10,000,000 units in the Company issued pursuant
to Section 2.2 for the initial capital contributions by the Members, each of
which initially represents a 0.001% Membership Interest under this Agreement and
any Units subsequently issued pursuant to Section 2.3 or 2.4, or otherwise. The
Membership Interest represented by a Unit shall be proportionately adjusted for
any issuance of additional Units pursuant to Section 2.3 or 2.4 of this
Agreement or otherwise.
"Wireless Communications System" means the equipment and other assets
required for the provision of wireless communications services.
"Wireless Opportunity" is defined in Section 6.6(b).
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ARTICLE 2
CAPITALIZATION
Section 2.1. Capital Accounts.
(a) A capital account ("Capital Account") shall be determined and
maintained for each Member in accordance with the principles of Regulation
Section 1.704-1(b) at all times throughout the full term of the Company. In
the event of a permitted sale or assignment of all or any part of a
Member's Units or Membership Interest, the Capital Account of the
transferor shall become the Capital Account of the transferee to the extent
it relates to the transferred Unit(s) or Membership Interest.
(b) The Book Value of all Company properties shall, unless otherwise
determined by the Manager, be adjusted to equal their respective gross fair
market values, as determined by the Manager, as of the following times: (1)
in connection with the acquisition of a Unit or Membership Interest by a
new or existing Member for more than a de minimis capital contribution; (2)
in connection with the grant of Units or other Membership Interest (other
than a de minimis interest) as consideration for the provision of services
to or for the benefit of the Company by an existing Member acting in a
member capacity, or by a new Member acting in a member capacity or in
anticipation of being a member; (3) in connection with the liquidation of
the Company as defined in Regulation Section 1.704-(1)(b)(2)(ii)(g); or (4)
in connection with a more than de minimis distribution to a retiring or a
continuing Member as consideration for all or a portion of his or its
Unit(s) or Membership Interest. In the event of a revaluation of any
Company assets hereunder, the Capital Accounts of the Members shall be
adjusted, including continuing adjustments for Depreciation, to the extent
provided in Regulation Section 1.704-(1)(b)(2)(iv)(f).
Section 2.2. Initial Capital Contributions.
(a) Effective July 11, 2006, pursuant to the Subscription Agreement,
Hawaiian Member made a commitment to contribute to the Company the amount
of Fifteen Million Dollars ($15,000,000) within sixty (60) days from the
date of the Company's formation. In connection with this commitment, the
Company issued to Hawaiian Member two million one hundred forty thousand
(2,140,000) Units to reflect its ownership interest in the Company.
(b) Within sixty (60) days from the date of the Company formation,
subject to the satisfaction of the applicable conditions set forth in
Section 2.2(d) below, Clearwire shall contribute those assets listed on
Schedule 2.2 (the "Clearwire Assets") pursuant to an Assignment and
Assumption Agreement in the form attached as Exhibit A (the "Assignment and
Assumption Agreement") and a ▇▇▇▇ of Title Transfer in the form attached as
Exhibit B (the "▇▇▇▇ of Title Transfer") in exchange for 7,860,000 Units.
The Clearwire Assets are being transferred subject to a continuing lien on
these assets pursuant to the Indenture. Clearwire and Hawaiian
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Member hereby agree that the initial Capital Account balance of Clearwire
is Fifty Five Million Dollars ($55,000,000).
(c) Immediately after giving effect to the contribution to the equity
of the Company by Clearwire set forth above in Section 2.2(b), Clearwire
shall own 78.6% of the outstanding Units in the Company and Hawaiian Member
shall own 21.4% of the outstanding Units in the Company.
(d) The obligations of Clearwire to consummate the contributions set
forth in this Section 2.2 shall be subject to the following:
(i) With respect to both Clearwire and Hawaiian Member, no
governmental entity of competent jurisdiction shall have enacted,
issued, promulgated, enforced, or entered into any statute, rule,
regulation, executive order, decree, injunction or other order
(whether temporary, preliminary or permanent) that has the effect of
making the transactions contemplated by this Agreement illegal or
impractical.
(ii) The representation and warranties of Hawaiian Member set
forth in Section 8.3 hereof shall be true and correct in all material
respects on the date hereof and on the date of consummation of the
transaction contemplated by this Section 2.2, and (y) Hawaiian Member
shall have satisfied its obligations under the Subscription Agreement.
(iii) Hawaiian Member's contribution of Fifteen Million Dollars
($15,000,000) pursuant to Section 2.2(a).
(e) The obligation of Hawaiian Member to contribute Fifteen Million
Dollars ($15,000,000) pursuant to Section 2.2(a) shall be subject to the
following:
(i) The representation and warranties of Clearwire set forth in
Section 8.3 hereof shall be true and correct in all material respects
on the date hereof and on the date of consummation of the transaction
contemplated by this Section 2.2
(ii) Clearwire's contribution of the Clearwire Assets pursuant to
Section 2.2(b).
Section 2.3. Hawaiian Member Contribution Option.
(a) Contribution Option. For three (3) years from the date of this
Agreement, Hawaiian Member shall have the option to contribute an
additional Fifty Million Dollars ($50,000,000) ("Option Amount") in
immediately available funds in exchange for 5,680,000 additional Units in
the Company (the "Contribution Option"), subject to adjustment for
additional capital calls, non-prorata distributions, and reorganization
events.
(b) Notice and Payment. Hawaiian Member shall give written notice of
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its intent to exercise the Contribution Option and shall, within ten (10)
days of such notice wire the Option Amount to the Company in exchange for
the additional ownership interest stated in Section 2.3(a) above.
(c) Amendment. Each of the Members agree that this Section 2.3 shall
not be modified or amended without the written consent of the Hawaiian
Member.
Section 2.4. Additional Contributions.
(a) Additional Contributions. The Manager shall determine whether it
is in the Company's interest to borrow amounts necessary to satisfy the
Company's additional capital needs or whether a capital call of the Members
should be made. In the event that the Manager determines that a capital
call is in the Company's best interests, or in the event that a Majority in
Interest decides to expand the scope of the Company's operations, whether
by adding additional services or increasing the market scope of the
Company, then the Manager shall provide written notice to each Member with
respect to the amount of required additional capital, the number of Units
to be sold and the price per Unit and requesting each Member to provide its
proportionate share of such additional capital. Within five (5) days of the
delivery of such notice, each Member will provide the Manager with written
notice as to whether it will contribute its proportionate share of the
additional capital.
(b) Disproportionate Contributions. If any Member chooses not to so
contribute, then the contributing Members shall have the option to purchase
the non-participating Member's share of the Units being sold in addition to
their own share of the Units.
(c) Insufficient Additional Contributions. If additional capital is
needed to expand the operations of the Company into new markets (including
markets in the islands of Hawaii) and the Company does not receive the full
amount of additional contributions requested pursuant to Section 2.4(a)
above, then the contributing Members may form a new entity with respect to
such expanded areas, and the non-contributing Member shall not have any
ownership interest in such new entity.
Section 2.5. No Withdrawals
Except as expressly set forth herein, no Member shall be entitled to
withdraw any portion of its capital contribution or Capital Account balance.
Section 2.6. No Interest on Capital Contribution.
Except as expressly set forth herein, no Member shall be entitled to
receive any interest on its capital contribution or Capital Account balance.
Section 2.7. No Third Party Beneficiaries
The provisions of this Article 2 are intended solely to benefit the Members
and, to the fullest extent permitted by applicable law, shall not be construed
as conferring any
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benefit upon any creditor of the Company (and no such creditor shall be a third
party beneficiary of this Agreement), and no Member shall have any duty or
obligation to any creditor of the Company to make up any capital contributions
to the Company and no Member or Manager shall have any duty or obligation to any
creditor of the Company to issue any call for capital pursuant to this Article 2
or otherwise.
Section 2.8. Preemptive Right
(a) Grant of Preemptive Rights. The Company hereby grants to each
Eligible Member the preemptive rights set forth in this Section 2.8 with
respect to each issuance of Units, or securities or instruments convertible
into or exchangeable or exercisable for any Units, of any class of security
of the Company, other than the Units that are issued and outstanding as of
the date of this Agreement and other than Units issued or issuable in the
following circumstances (collectively, subject to the following exceptions,
"New Units"):
(i) Units (and/or options, warrants or other Unit purchase
rights, and the Units issued pursuant to such options, warrants or
other rights) issuable or issued to employees, consultants, directors,
vendors, lessors or others with whom the Company conducts business,
provided that such shares, options, warrants or other rights are
issued directly in a transaction approved by the Manager or pursuant
to a stock option plan or restricted stock plan approved by the
Majority in Interest;
(ii) Units (and/or options, warrants or other Unit purchase
rights, and the Units issued pursuant to such options, warrants or
other rights) issued to financial institutions or lessors in
connection with commercial credit arrangements, equipment financing or
similar transactions;
(iii) Units (and/or options, warrants or other Unit purchase
rights, and the Units issued pursuant to such options, warrants or
other rights) issued pursuant to transactions involving technology
licensing, research or development activities, the use or acquisition
of strategic assets, properties or rights, or the distribution,
manufacture or marketing of the Company's products, provided that each
of the foregoing transactions is primarily for non-financing purposes;
(iv) Units issuable or issued in connection with bona fide
acquisitions of or by the Company whether by merger, consolidation,
sale of assets, sale or exchange of equity or otherwise, the terms of
which are approved by the Manager and the Majority in Interest;
(v) Units (and/or options, warrants or other Unit purchase
rights, and the Units issued pursuant to such options, warrants or
other rights) issued or issuable (i) to the public pursuant to the IPO
or (ii) upon exercise of warrants or rights granted to underwriters in
connection with
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such IPO;
(vi) Units (and/or options, warrants or other Unit purchase
rights, and the Units issued pursuant to such options, warrants or
other rights) issuable or issued pursuant to agreements and warrants
existing on the date hereof, including without limitation, the rights
of the Hawaiian Member to purchase Units pursuant to Section 2.3
hereof;
(vii) Units issued in connection with any equity split, equity
dividend, reserve equity split or other distribution of Units that
does not affect the economic interests or rights of holders of Units.
(b) Exercise of Preemptive Rights. Each time after the date of this
Agreement and prior to the time that the Company proposes to offer any New
Units, the Company shall first make an offering of such New Units to the
Eligible Member in accordance with this Section 2.8.
(i) The Company shall deliver a notice (the "Issue Notice") to
the Eligible Member stating (x) the bona fide intention of the Company
to offer such New Units, (y) the number of such New Units to be
offered, and (z) the price and terms upon which the Company proposes
to offer such New Units.
(ii) By written notification received by the Company, within 10
business days after receipt of the Issue Notice, each Eligible Member
may elect to purchase, at the price and on the terms specified in the
Issue Notice, a portion of such New Units that equals the proportion
that the number of Units including any options, warrants or other
share purchase rights held by such Member bears to the total number of
shares of Units of the Company then outstanding, on a fully diluted
basis, but excluding (x) any options, warrants or other rights to
acquire Units where the fair market value of the Units issuable on the
exercise of such options, warrants or other rights, as determined in
good faith by the Manager, is less that the exercise price of such
options, warrants or other rights and (y) any Units and options,
warrants or other rights to acquire Units that are reserved but
unallocated pursuant to any stock plan. Such written notification
shall be a binding, irrevocable commitment to purchase such New Units.
(iii) If Eligible Members do not elect to purchase all of the New
Units that Eligible Members are entitled to purchase under subsection
(ii), the Company may offer the unsubscribed portion of such New Units
to any Persons at a price not less than, and upon terms no more
favorable to the offeree, than those specified in the Issue Notice,
provided that the Company completes the offer and sale of such
unsubscribed portion within 120 business days after the date the
applicable Issue Notice is first delivered to stockholders of the
Company.
13
(iv) No Member may assign its rights under this Section 2.8
without the consent of the Manager, which may be withheld at its sole
discretion.
(c) Eligible Member. For the purposes of this Section 2.8, an
"Eligible Member" shall mean each Member holding at least 1% of the
outstanding capital equity of the Company, on a fully diluted basis on the
day immediately prior to the issuance of the Issue Notice.
ARTICLE 3
PROFITS AND LOSSES
Section 3.1. Allocation of Net Profit and Loss - In General.
(a) Allocation of Net Profit. After giving effect to the special
allocations set forth in Sections 3.2 and 3.3, the net profit for any
fiscal year of the Company shall be allocated among the Members in the
following order of priority:
(i) first, to the Members in the reverse chronological order in
which net losses were allocated to the Members pursuant to Sections
3.1(b)(iv), 3.1(b)(iii), and 3.1(b)(ii), respectively, until each
Member has received aggregate allocations of net profit under this
Section 3.1(a)(i) in an amount equal to, but not in excess of, the
aggregate allocations of net loss to such Member pursuant to Sections
3.1(b)(ii) through 3.1(b)(iv)) for all prior fiscal years; and
(ii) thereafter, to the Members in proportion to their respective
Percentage Interests.
(b) Allocation of Net Loss. After giving effect to the special
allocations set forth in Sections 3.2 and 3.3, the net loss for any fiscal
year of the Company shall be allocated among the Members in the following
order of priority:
(i) first, in proportion to the amounts allocated to the Members
pursuant to Section 3.1(a)(ii) in an amount equal to the excess, if
any, of (i) the cumulative net profits allocated to the Members
pursuant to Section 3.1(a)(ii) for all prior fiscal years, over (ii)
the cumulative net losses allocated to the Members pursuant to this
Section 3.1(b)(i) for all prior fiscal years;
(ii) second, to the Members in proportion to their respective
Percentage Interests; provided, however, that net losses shall not be
allocated to any Member pursuant to this Section 3.1(b)(ii) to the
extent such allocation would cause such Member to have a Deficit
Capital Account at the end of any fiscal year. Such excess net loss
shall, instead, be allocated in accordance with Section 3.1(b)(iii);
(iii) third, the remaining net loss, if any, shall be allocated
14
among those Members who do not have Deficit Capital Accounts in
proportion to their respective Percentage Interests; provided,
however, that no allocation under this Section 3.1(b)(iii) shall cause
any Member to have a Deficit Capital Account; and
(iv) thereafter, any remaining net loss shall be allocated among
the Members in proportion to their respective Percentage Interests.
Section 3.2. Special Allocations
The following special allocations shall be made for any fiscal year of the
Company in the following order:
(a) Minimum Gain Chargeback. If there is a decrease in the Company's
"partnership minimum gain," as defined in and determined under Regulation
Sections 1.704-2(b)(2) and 1.704-2(d), the minimum gain chargeback
provisions of Regulation Section 1.704-2(f), which are hereby incorporated
into this Agreement by this reference, shall be applied.
(b) Member Minimum Gain Chargeback. If there is a decrease in any
Member's share of "partner nonrecourse debt minimum gain," as defined in
and determined under Regulation Section 1.704-2(i), the partner nonrecourse
debt minimum gain chargeback provisions of Regulation Section
1.704-2(i)(4), which are hereby incorporated into this Agreement by this
reference, shall be applied.
(c) Qualified Income Offset. In the event that any Member unexpectedly
receives any adjustments, allocations, or distributions described in
Regulation Sections 1.704-1(b)(2)(ii)(d)(4), (5) or (6), items of Company
income and gain shall be specially allocated to such Member in accordance
with Regulation Section 1.704-(1)(b)(2)(ii)(d).
(d) Nonrecourse Deductions. "Nonrecourse deductions," as defined in
and determined under Regulation Sections 1.704-2(b)(1) and (c), shall be
allocated among the Members in accordance with the allocation pursuant to
Section 3.1(a)(ii).
(e) Member Nonrecourse Deductions. "Partner nonrecourse deductions,"
as defined in and determined under Regulation Sections 1.704-2(i)(1) and
(2), shall be specially allocated among the Members in accordance with
Regulation Section 1.704-2(i).Curative Allocations
Section 3.3. Corrective Allocations. The allocations set forth in Section
3.2 are intended to comply with certain regulatory requirements under Code
Section 704(b). The Members intend that, to the extent possible, all allocations
made pursuant to such Sections will, over the term of the Company, be offset
either with other allocations pursuant to Section 3.2 or with special
allocations of other items of Company income, gain, loss, or deduction pursuant
to this Section 3.3. Accordingly, the Manager is hereby authorized and directed
to make offsetting allocations of Company income, gain, loss or deduction under
this Section 3.3 in whatever manner the Manager determines is
15
appropriate so that, after such offsetting special allocations are made (and
taking into account the reasonably anticipated future allocations of income and
gain pursuant to Sections 3.2(a) and 3.2(b), the Capital Accounts of the Members
are, to the extent possible, equal to the Capital Accounts each would have if
the provisions of Section 3.2 were not contained in this Agreement and all
income, gain, loss and deduction of the Company were instead allocated pursuant
to Section 3.1.
Section 3.4. Other Allocation Rules.
(a) General. Except as otherwise provided in this Agreement, all items
of Company income, gain, loss, deduction, credit, and any other allocations
not otherwise provided for shall be divided among the Members in accordance
with their Percentage Interests, or as otherwise may be required under the
Code and the Regulations thereunder.
Section 3.5. Allocation of Excess Nonrecourse Liabilities. Solely for
purposes of determining a Member's proportionate share of the "excess
nonrecourse liabilities" of the Company within the meaning of Regulation Section
1.752-3(a)(3), the Members' interests in the Company's profits shall be their
respective Percentage Interests.
Section 3.6. Allocations in Connection with Varying Interests. If, during a
Company fiscal year, there is (i) a permitted transfer of all or a part of a
Member's interest in the Company, or (ii) the admission or withdrawal of a
Member, net profit, net loss, each item thereof, and all other tax items of the
Company for such fiscal year shall be divided and allocated among the Members by
taking into account their varying interests during such fiscal year in
accordance with Code Section 706(d) and using any conventions permitted by law
and selected by the Manager.
Section 3.7. Determination of Net Profit or Loss. The net profit or net
loss of the Company, for each fiscal year or other period, shall be an amount
equal to the Company's taxable income or loss for such period, determined in
accordance with Code Section 703(a) (and, for this purpose, all items of income,
gain, loss or deduction required to be stated separately pursuant to Code
Section 703(a)(1) shall be included in taxable income or loss), subject to the
following adjustments:
(a) Any income of the Company that is exempt from federal income tax
shall be added to such taxable income or loss;
(b) Any expenditures of the Company described in Code Section
705(a)(2)(B) or treated as such pursuant to Regulation Section
1.704-1(b)(2)(iv)(i) shall be subtracted from such taxable income or loss;
(c) In lieu of the depreciation, amortization and other cost recovery
deductions taken into account in computing such taxable income or loss,
Depreciation for such fiscal year shall be taken into account;
(d) If the Book Value of any Company asset is adjusted pursuant to
Section 2.1(b), the amount of such adjustment shall be taken into account
as gain or
16
loss from the disposition of such asset for purposes of computing net
profit or loss;
(e) Gain or loss resulting from the disposition of any Company asset
with respect to which gain or loss is recognized for federal income tax
purposes shall be computed with reference to the Book Value of the asset
disposed of, notwithstanding that the adjusted tax basis of such asset
differs from the Book Value of such asset; and
(f) any items that are specially allocated pursuant to Section 3.2 or
Section 3.3 shall not be taken into account in computing the Company's net
profit or net loss.
Section 3.8. Mandatory Tax Allocations Under Code Section 704(c).
(a) In accordance with Code Section 704(c) and Regulation Section
1.704-3, income, gain, loss and deduction with respect to any property
contributed to the capital of the Company shall, solely for tax purposes,
be allocated among the Members so as to take account of any variation
between the adjusted basis of such property to the Company for federal
income tax purposes and its Book Value. Prior to the contribution of any
property to the Company that has a fair market value that differs from its
adjusted tax basis in the hands of the contributing Member on the date of
contribution, the contributing Member and the Manager shall agree upon the
allocation method to be applied with respect to that property under
Regulation Section 1.704-3, which allocation method shall be set forth on
attached Schedule 2, as amended from time to time. The same procedure shall
apply to any revaluation of Company property as permitted under Regulation
Section 1.704-1(b)(2)(iv)(f).
(b) Allocations pursuant to this Section 3.8 are solely for purposes
of federal, state, and local income and franchise taxes and shall not
affect, or in any way be taken into account in computing, any Member's
Capital Account or share of net profit, net loss, or other items as
computed for book purposes, or distributions pursuant to any provision of
this Agreement.
ARTICLE 4
DISTRIBUTIONS
Section 4.1. Distributable Cash
(a) Mandatory Distributions. Subject to Clearwire's satisfaction of
its debt obligations arising under the Indenture, to the extent
Distributable Cash is available therefor, the Company shall make a
distribution to the Members, on or before April 1st of each year pro-rata
in accordance with their Percentage Interests, if any, shall be distributed
to the Members in an amount equal to the product of (i) the maximum
combined federal and state income tax rate applicable to any Member in
effect for such year and (ii) the taxable income of the Company in the
immediately preceding year.
(b) Optional Distributions. Subject to Sections 4.2 and 6.3,
Distributable
17
Cash shall be distributed to the Members in proportion to their respective
Percentage Interests quarterly in arrears, provided that the Company shall
not be required to make any distribution to any Member if such distribution
would violate the Act or other applicable law.
Section 4.2. Liquidating Distributions.
Notwithstanding Section 4.1, distributions to the Members of cash or
property in connection with a dissolution of the Company shall be made, as
provided in Section 9.3(d)(ii).
Section 4.3. Other Distributions.
No Member shall be entitled to receive any other distribution from the
Company without the consent of the Manager or as otherwise provided in this
Article 4 and Section 9.3(d).
ARTICLE 5
ACCOUNTING AND RECORDS
Section 5.1. Fiscal Year
The fiscal year of the Company shall be the year ending December 31.
Section 5.2. Method of Accounting
Unless otherwise provided herein, the Company books of account shall be
maintained in accordance with GAAP; provided that for purposes of making
allocations and distributions hereunder (including distributions upon
dissolution of the Company in accordance with Capital Account balances as
required by Section 9.3(d)(ii)), the relevant items shall be determined in
accordance with federal income tax accounting principles utilizing the accrual
method of accounting, with adjustments required by Treasury Regulation Section
1.704-1(b) to properly maintain Capital Accounts. Each Member acknowledges that
the Capital Account balances of the Members for the purposes described in the
preceding sentence are not computed in accordance with GAAP and accordingly that
any GAAP financial statements for the Company may not reflect their true Capital
Account balances.
Section 5.3. Books and Records; Inspection
(a) Books of Account and Records. Proper and complete records and
books of accounts of the Company business for tax and financial purposes,
including all such transactions and other matters as are usually entered
into records and books of account maintained by Persons engaged in
businesses of like character or as are required by law, shall be kept by
the Company at the Company's principal office and place of business. The
Manager may delegate to a third party or any Member the duty to maintain
and oversee the preparation and maintenance of such records and books of
account. Books and records maintained for financial purposes shall be
18
maintained in accordance with GAAP, and books and records maintained for
tax purposes shall be maintained in accordance with the Code and applicable
Treasury Regulations.
(b) Inspection. All records and documents described in Section 5.3(a)
shall be open to inspection at the Company's primary offices and copying by
any of the Members at any reasonable time during business hours. Any Member
wishing to inspect such records shall provide at least five (5) business
days advance written notice prior to inspection, and any and all copying
and expenses related to the inspection shall be borne by the inspecting
Member.
Section 5.4. Financial Statements
Within ninety (90) days after the end of each fiscal year, and forty-five
(45) days after the end of each calendar quarter, the Manager shall cause to be
furnished to each Information Rights Member financial statements with respect to
such fiscal year or quarter of the Company, consisting of (i) a balance sheet
showing the Company's financial position as of the end of such fiscal year or
quarter, (ii) supporting profit and loss statements, (iii) a statement of cash
flows for such year or quarter, and (iv) Members' Capital Accounts.
Section 5.5. Operations Reporting.
Within thirty (30) days following the end of each month, the Manager shall
cause to be furnished to each Information Rights Member the operational
information described on Schedule 5.5 with respect of the Company's operations
during the previous month.
Section 5.6. Taxation
(a) Status of the Company. The Members acknowledge that this Agreement
creates a partnership for federal income tax purposes. Furthermore, the
Members hereby agree not to elect to be excluded from the application of
Subchapter K of Chapter 1 of Subtitle A of the Code or any similar state
statute.
(b) Tax Elections and Reporting.
(i) Generally. The Company shall make the following elections and
take the following positions under United States income tax laws and
Treasury Regulations and any similar state laws and regulations: (A)
adopt the year ending December 31 as the annual accounting period
(unless otherwise required by the Code and Treasury Regulations); (B)
adopt the accrual method of accounting; (C) insofar as permissible,
report the Company's tax attributes and results using principles
consistent with those assumed in connection with entering into this
Agreement; and (D) have the Company treated as a partnership for
federal income tax purposes in a manner consistent with Treasury
Regulations Section 301.7701-1, et seq.
19
(ii) Code Section 754 Election. The Manager shall, upon the
written request of any Member, cause the Company to file an election
under Code section 754 and the Treasury Regulations thereunder to
adjust the basis of the Company's assets under Code section 734(b) or
743(b) and a corresponding election under the applicable sections of
state and local law.
(c) Company Tax Returns. The Tax Matters Partner will prepare or cause
to be prepared the domestic and foreign tax returns and information returns
for the Company at no charge to the Company, except for all reasonable
out-of-pocket expenses (including accounting fees, if any). Any Member may,
at its own expense, engage a third party to review the tax returns and
information returns prepared by the Tax Matters Partner pursuant to the
preceding sentence. Any and all other tax returns shall be prepared in a
manner directed by the Tax Matters Partner consistent with the terms of
this Agreement. Each Member shall provide such information, if any, as may
be reasonably requested by the Company for purposes of preparing such tax
and information returns including, without limitation, the adjusted tax
basis for Federal income tax purposes of the assets contributed by any
Members pursuant to Section 2.2(a). The Tax Matters Partner shall use its
best efforts to (i) cause draft copies of all tax returns to be submitted
to each Member not fewer than thirty (30) days before the filing thereof
and within one hundred twenty (120) days after the end of each tax year of
the Company, (ii) cause copies of all final tax returns to be delivered to
each Member within one hundred eighty (180) days after the end of each tax
year of the Company, and (iii) deliver to each Member within ninety (90)
days after the end of each tax year any additional information in the
possession of the Company that the Members may require for the preparation
of their own income tax returns.
(d) Tax Audits. Clearwire shall be the "tax matters partner," as that
term is defined in Code section 6231(a)(7) (the "Tax Matters Partner") with
all of the rights, duties and powers provided for in sections 6221 through
6234, inclusive, of the Code, provided that the Tax Matters Partner shall
not pay or agree to pay any audit assessment, or any amount in settlement
or compromise of any litigation, in respect of income tax liability of the
Members attributable to the Interests in the Company, in excess of $200,000
in any one instance or series of related instances, unless approved by the
Manager. The Tax Matters Partner, as an authorized representative of the
Company, shall direct the defense of any tax claims made by the Internal
Revenue Service or any other taxing jurisdiction to the extent that such
claims relate to adjustment of Company items at the Company level and, in
connection therewith, shall retain and cause the Company to pay the fees
and expenses of counsel and other advisors chosen by the Tax Matters
Partner. The Tax Matters Partner shall also be responsible for timely
filing for all elections made by the Company. The Tax Matters Partner shall
deliver to each Member and the Manager a semi-annual report on the status
of all tax audits and open tax years relating to the Company, and shall
consult with and keep all Members and the Manager advised of all
significant developments in such matters coming to the attention of the Tax
Matters Partner. All reasonable expenses of the Tax Matters
20
Partner and its Affiliates (including reasonable internal time charges and
reasonable disbursements) and other reasonable fees and expenses in
connection with such defense shall be borne by the Company. The provisions
of Section 10.1 and 10.2 shall apply to any acts or omissions of the Tax
Matters Partner (other than failure to comply with the express terms of
this Agreement) while acting in that capacity. Except as provided in
Article 10, neither the Tax Matters Partner nor the Company shall be liable
for any additional tax, interest or penalties payable by a Member or any
costs of separate counsel chosen by such Member to represent the Member
with respect to any aspect of such challenge. The Company shall indemnify
and reimburse the tax matters partner for all reasonable expenses,
including legal and accounting fees, claims, liabilities, losses and
damages, incurred in connection with any administrative or judicial
proceeding with respect to the tax liability of the Members attributable to
the Company. The payment of all such expenses shall be made before any
Distributions are made to Members (and such expenses shall be taken into
consideration for purposes of determining Distributable Cash) or any
discretionary Reserves are set aside by the Manager. Neither the tax
matters partner nor any Member shall have any obligation to provide funds
for such purpose. The provisions for exculpation and indemnification of the
various Persons set forth in Sections and shall be fully applicable to any
Member acting as tax matters partner for the Company. With respect to State
of Hawaii income taxes, the Tax Matters Partner will work with the Hawaiian
Member to establish a structure so as to ensure that the economic benefits
therefrom to such Parties are realized in a manner that is as tax- and
accounting-efficient to such Parties as possible; provided, however that
such structure does not negatively affect the federal or other states
income taxes to be paid by any Member.
Section 5.7. Internal Control Over Financial Reporting
In consideration of the financial support provided to the Company by the
Members, the Company agrees to promptly establish and thereafter maintain
policies and procedures regarding internal control over financial reporting that
will enable the Members or their Affiliates to comply with the requirements of
Section 404 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 (the "▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act") and the
rules promulgated from time to time thereunder by the SEC to the extent that
such members or Affiliates are required to consolidate the Company pursuant to
FASB Interpretation No. 46 or are otherwise obligated to evaluate and report on
the effectiveness of the Company's internal control over financial reporting.
Those Members and their Affiliates that are subject to said Section 404 are
referred to collectively as the "Reporting Entities." The Company will (i)
furnish the Reporting Entities with copies of all written policies and
procedures established and maintained by the Company pursuant to this paragraph,
(ii) provide the Reporting Entities (and their independent auditors) with access
to the Company's financial books and records, and to the Company's management
and independent auditors, to the extent necessary to enable the Reporting
Entities to evaluate the adequacy of, and to monitor the Company's compliance
with, such policies and procedures, and otherwise cooperate with them to the
extent reasonably requested, and (iii) promptly adopt any new policies and
procedures regarding internal control over financial reporting, and promptly
implement any remedial measures with respect to any such existing policies
21
and procedures, as the Reporting Entities may reasonably request to enable them
to comply with the requirements of Section 404 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act and the
rules promulgated from time to time thereunder by the SEC and thereby to
conclude and assert that the internal control over financial reporting of the
Company is effective.
ARTICLE 6
MANAGEMENT
Section 6.1. Manager
Clearwire (in such capacity, the "Manager") shall have full power and
authority to direct and control the property, business and affairs of the
Company, except with respect to those matters specifically made subject to the
approval requirements of Sections 6.3 and 6.4, and subject to the right of the
Manager to delegate such power and authority to Persons responsible for
day-to-day operation of the Company (it being understood that authority to
undertake Significant Events or Significant Matters prior to approval as
provided in Section 6.3(b) shall not be so delegated). Subject to the foregoing,
in addition to the powers and authorities by this Agreement expressly conferred
upon it, the Manager may exercise all such powers of the Company and do all such
lawful acts and things as are not by statute or by this Agreement directed or
required to be exercised or done by the Members. Except as otherwise provided in
this Agreement, no Member shall have any right or authority to take any action
on behalf of the Company with respect to third parties or to bind the Company.
The Company shall reimburse Clearwire for its direct costs and expenses, and for
an allocable share of its indirect costs and expenses, incurred in its capacity
as Manager, including but not limited to the compensation paid to its employees
to the extent allocable to time spent by them on the business and affairs of the
Company.
Section 6.2. Meeting Requirements
(a) Regular Meetings. The Manager shall hold a meeting of the Members
at such place agreed to by a Majority in Interest on such dates and at such
times as are established by the consent of a Majority in Interest.
(b) Special Meetings. A special meeting of the Members shall be held
at the request of the Manager. The location of such meeting shall be at
such place reasonably agreed to by a Majority in Interest.
(c) Telephonic Meetings. Any meeting of the Members may be held by
conference telephone call or through similar communications equipment by
means of which all persons participating in the meeting can hear and be
heard by each other. Participation in a telephonic meeting held pursuant to
this Section 6.2(c) shall constitute presence in person at such meeting.
(d) Notices. Notices of regular meetings and special meetings may be
given by the Manager, as the case may be, and shall state the date, hour
and purpose of the meeting. All such notices shall be accompanied by an
agenda for the meetings, as well as (to the extent practicable) the texts
of all resolutions proposed to be adopted at such
22
meetings. No item may be discussed if not on the agenda unless a quorum is
present and the Members present waive notice of the additional item(s).
Notice of a regular or special meeting shall be given by facsimile,
confirmed by certified mail, return receipt requested not less than 14 days
(in the case of a regular meeting) or 72 hours (in the case of a special
meeting) before the date of the meeting to each Member at the facsimile
number and address provided by the Member to the Company from time to time.
Any Member may waive, as to such Member only, in writing, the requirements
for notice before or after a meeting or by attending such meeting and not
protesting any lack of notice. Notwithstanding any other term hereof, no
regular or special meeting may occur without notice therefor being
delivered or waived in accordance with this Section 6.2(d).
(e) Quorum. At each meeting of the Members, the presence in person or
by telephone of Members holding a Majority in Interest shall be necessary
to constitute a quorum for the transaction of business.
(f) Written Consents. Subject at all times to Section 6.3 (including
without limitation the provisions relating to Significant Matters contained
therein), any action required or permitted to be taken at a meeting of the
Members may be taken without a meeting, but upon the requisite notice as
provided in paragraph (d) above, if the requisite Members consent thereto
in writing, and if a complete and correct copy of such consent is delivered
to all the Members following the execution of any such consent.
Section 6.3. Actions Requiring Majority Approval.
(a) The following actions require approval by a Majority in Interest:
(i) any Significant Event or Significant Matter; and
(ii) any other matter that a Majority in Interest or the Manager
determines shall require majority approval.
"Significant Event" means any of the following:
(1) Any Significant Matter;
(2) The adoption or amendment of any operating or capital budget,
subsequent business plan, marketing plan, financial plan, operational
plan, technical plan, communication plan, strategic plan or any other
material plan, policy, or strategy of the Company;
(3) The hiring or firing of the manager(s) of the operations of
the Company and the setting of compensation of such Person(s);
(4) The hiring or firing of the key personnel of the Company;
(5) The approval or amendment of material contracts;
(6) The commencement or prosecution of any material claim in a
23
judicial proceeding or arbitration forum, or the settlement of any
such claim against the Company;
(7) Any transaction or series of transactions or other activities
which, if carried out, could reasonably be expected to include in the
range of possible results the financial performance of the Company
materially diverging from the then current budget or business or other
plan of the Company;
(8) Any material change in the manner in which the Business is
conducted; and
(9) Any agreement, arrangement or understanding, written or oral,
between the Company, on the one hand, and any Affiliates thereof, on
the other hand.
"Significant Matter" means any of the following:
(1) The sale, transfer, assignment, pledge or other disposition
by the Company of any FCC License or otherwise any material portion of
the assets of the Company;
(2) The merger, combination or consolidation of the Company with
or into any other entity (regardless of whether the Company is the
surviving entity in any such merger, combination or consolidation),
the acquisition of any business by the Company, the formation of any
partnership or joint venture involving the Company, or the
liquidation, dissolution or winding up of the Company;
(3) Any offering or issuance of additional Units, or any other
securities or ownership interests in, the Company, including, without
limitation, warrants, options or other rights convertible into or
exchangeable for Units, or other securities or ownership interests in,
the Company;
(4) The repurchase by the Company of any Units other than as
provided herein;
(5) The payment by the Company of any distribution, direct or
indirect, on or on account of any Units, now or hereafter outstanding,
unless such distribution is being paid as expressly provided by any
Section of this Agreement other than Section 4.2.
(6) Except as otherwise provided in Section 11.2, the
authorization or adoption of any amendment to the certificate of
formation, limited liability company agreement, or any other
constituent document of the Company;
(7) The incurrence by the Company, whether directly or
indirectly, of any indebtedness for borrowed money or capital leases
not in the ordinary course of business, other than indebtedness
existing on the date hereof;
24
(8) The making of, or commitment to make, by the Company of any
material capital expenditure not in the ordinary course of business,
except as provided in the then current budget or business or other
plan of the Company;
(10) The acceptance of additional capital contributions or
approval of calls therefor;
(11) The hiring or firing of the independent certified public
accountants (if other than one of the Big Four accounting firms) or
other tax advisor for the Company, or the making of any tax election
on behalf of the Company; and
(12) The entering into any contract, agreement or understanding
to do any of the foregoing.
(b) Approval Requirements. The Company shall provide each Member with
adequate notice (in light of the time frame in which approval is sought) of
the substance of any matter requiring majority approval in order to afford
such Members sufficient time to review such matter and the Company's
analysis thereof.
(c) Certain Rights. Notwithstanding any other provision of this
Agreement to the contrary, the Manager shall have unfettered use of all
facilities and equipment of the Company and shall: (i) control the daily
operations of the Company; (ii) determine and carry out the policy
decisions of the Company, including preparing and filing applications with
the FCC; (iii) employ, supervise, and dismiss employees of the Company; and
(iv) be responsible for overseeing the financial operations of the Company,
including payment of financing obligations of the Company arising out of
operations and receiving on behalf of the Company moneys and profits from
the operation of the Company's facilities.
Section 6.4. Actions by Members
Notwithstanding any other provision in this Agreement to the contrary, the
following actions require the prior written approval by a Majority in Interest:
(i) change in permitted activities of the Company in accordance with Section
1.4, (ii) dissolution of the Company in accordance with Section 9.2(a)(ii), and
(iii) amendment of this Agreement in accordance with Section 11.2.
Section 6.5. Confidentiality
(a) Each Member shall, and shall cause each of its Affiliates, and
each of its and their respective partners, members, managers, shareholders,
directors, officers, employees and agents (collectively, "Agents") to, keep
secret and retain in strictest confidence, and not use for any purpose
except as contemplated by this Agreement, any and all Confidential
Information relating to the Company or any Member and shall not disclose
such information, and shall cause its Agents not to disclose such
information, to anyone except (i) such Member's Affiliates or Agents who
have a need to know such information in connection with the matters
contemplated by this Agreement, and (ii) other Persons (such as lenders to
a
25
Member) who have a bona fide business reason for obtaining such information
in connection with their dealings with such Member and who agree in writing
to keep in confidence all Confidential Information in accordance with the
terms of this Section 6.5. The obligations under this Section 6.5 shall
survive the termination of this Agreement for a period of three years (or,
if earlier, as to any Person, three years following the date such Person
ceases to be a Member). The foregoing provisions of this Section 6.5 were
negotiated in good faith by the parties hereto and the parties hereto agree
that such provisions are reasonable and are not more restrictive than is
necessary to protect the legitimate interests of the Members and the
Company.
(b) The obligations set forth in Section 6.5(a) shall not apply with
respect to Confidential Information that (i) is or becomes generally
available to the public other than as a result of disclosure by the
receiving party or its Agents, (ii) was in or comes into the possession of
the receiving party from a source not known by the receiving party after
reasonable inquiry to be bound by a confidentiality agreement with respect
to the information in question, (iii) is required to be disclosed by the
receiving party pursuant to Law or (iv) is required to be disclosed in the
receiving party's financial statements prepared in accordance with GAAP.
(c) To the fullest extent permitted by law, if a Member or any of its
Affiliates or Agents breaches or threatens to commit a breach of this
Section 6.5, the other Members and the Company shall have the right to have
this Section 6.5 specifically enforced by any court having jurisdiction, it
being acknowledged and agreed that money damages will not provide an
adequate remedy to such other Members or the Company. Nothing in this
Section 6.5 shall be construed to limit the right of any Member or the
Company to collect money damages in the event of a breach of this Section
6.5, nor to limit the right of any Member to report the financial condition
and results of operations of the Company to its shareholders, bondholders
or to regulatory authorities to the extent required by law, regulation or
the terms of existing instruments.
(d) Anything else in this Agreement notwithstanding, each Member shall
have the right to disclose any information, including Confidential
Information of any other Member or such other Member's Affiliate(s), in any
filing with any regulatory agency, court or other Governmental Authority to
the extent that the disclosing Member determines in good faith that it is
required by Law, provided that any such disclosure shall be as limited in
scope as possible and shall only be made after giving the other Member as
much notice as practicable of such required disclosure and an opportunity
to contest such disclosure if possible.
(e) Clearwire may disclose this Agreement to its Affiliates, strategic
partners, actual or potential investors, lenders, acquirers, merger
partners, and others whom Clearwire deems in good faith to have a need to
know such information for purposes of pursuing a transaction or business
relationship with Clearwire. Hawaiian Member may disclose this Agreement
and any Confidential Information to any actual or potential bona fide
purchaser of any of the Hawaiian Member's Membership Interests provided
that prior to any such disclosure, (i) it has notified
26
the Manager at least five (5) Business Days, and (ii) prior to it receives
from such person an executed confidentiality agreement in form and
substance reasonably satisfactory to the Manager.
Section 6.6. Non-Competition.
(a) The Members and their Affiliates may engage in or possess an
interest in other business ventures in which the Company is not a party,
and may engage in any other activities, independently or with others in
which the Company is not a party. Notwithstanding the foregoing, the
Members and their Affiliates shall not acquire any interests in, act on
behalf of, either as an officer, director, employee or consultant, any
Person involved in the provision, sale, operation or development of
wireless communications or broadband services or the ownership, leasing or
rights to use wireless spectrum for the delivery of wireless broadband
services in the State of Hawaii, including without limitation, the
ownership and leasing of wireless spectrum in the 2.5 to 2.69 GHz range;
provided, however that foregoing restrictions shall not prohibit the
Members from owning a minority interest of not more than 5% of a company
headquartered in the State of Hawaii whose equities are publicly traded on
a nationally recognized stock exchange or on the NASDAQ National Market
System.. Recognizing Clearwire's expertise in acquiring wireless spectrum
and the Hawaiian Member's business relationships in Hawaii, Clearwire and
the Hawaiian Member will work together to support the Company's acquisition
of additional spectrum in Hawaii. The Hawaiian Member will use its
commercially reasonable efforts to support the Company's initiatives in
this regards by undertaking such actions as the Manager may reasonably
request provided that such actions (i) do not involve material expense or
dedication of material resources by Hawaiian Member unless reimbursed by
the Company, and (ii) do not impose any additional material restrictions
beyond those set forth in this Agreement on Hawaiian Member's or its
Affiliate's respective activities. To that end, the Company and the Members
will determine in good faith what, specifically, the Hawaiian Member can do
to support the Company's efforts to acquire additional spectrum to benefit
the Company.
(b) In the event that a Member is presented with an opportunity to
engage in a business venture in the communications and broad band industry
(the "Wireless Opportunity"), such Member (the "Presenting Member") shall,
whether or not it desires to accept the Wireless Opportunity, present it in
writing to the Manager and the other Members as an opportunity for the
Company. If a Majority in Interest decides not to pursue the Wireless
Opportunity, then, so long as pursuing the Wireless Opportunity would not
breach the provisions of Section 6.6(a), the Presenting Member shall be
free to pursue the Wireless Opportunity on the same terms and conditions
that were presented to the Company and neither the Company nor any of the
other Members shall have any rights or interest in the Wireless
Opportunity. If a Majority in Interest decides to pursue the Wireless
Opportunity, then the Presenting Member shall take all efforts necessary to
transfer such opportunity to the Company.
Section 6.7. Duties. To the extent that, at law or in equity, any Member or
any
27
Affiliate of a Member, or any member, manager, partner, director, officer,
stockholder, employee, agent or representative of a Member or such Affiliate,
would have duties (including fiduciary duties) and liabilities to the Company or
the Members different from or in addition to those provided in this Agreement,
all rights of the other Members and the Company arising out of such other duties
and liabilities are hereby waived and no such Person shall be liable to the
Company or to any Member for its good faith reliance on the provisions of this
Agreement.
Section 6.8. Dispute Resolution
(a) If a dispute arises out of this Agreement or the Transactions, the
parties shall make a good faith effort to resolve such dispute promptly. If
the parties are unable to resolve the dispute within thirty (30) days of
notice by one Member to the other Members and Manager of the dispute, then
any Member (the "Initiating Member") may initiate arbitration proceedings
against the other Member (the "Remaining Members"). The dispute shall then
be settled by arbitration in accordance with the CPR Institute for Dispute
Resolution Rules for Non-Administered Arbitration in effect on the date
hereof, by a panel of three arbitrators. The Initiating Member shall select
one of three arbitrators, the Remaining Members shall select a second
arbitrator, and these two arbitrators shall select the third arbitrator.
The arbitrators shall be governed by the United States Arbitration Act, 9
U.S.C. Sections 1-16, and judgment upon the award rendered by the
arbitrators may be entered by any court having jurisdiction thereof. The
place of arbitration shall be chosen by the three arbitrators. The parties
agree that all communications and negotiations between the parties during
the dispute resolution process, and any settlements agreed upon are
confidential. The reasonable out-of-pocket costs (including reasonable
attorneys' fees and expenses) of the prevailing party in any arbitration
proceeding shall be paid by the other party. The arbitrators shall
determine which party is the prevailing party for purposes of this
paragraph, and shall include such determination in their award. If the
arbitrators determine that neither party is the prevailing party for
purposes of this paragraph, then each party shall bear its own costs and
expenses, including attorneys' fees and expenses, and shall share equally
the fees of the arbitrators.
ARTICLE 7
TRANSFER OR ENCUMBRANCE OF INTERESTS
Section 7.1. General Restriction on Transfer or Encumbrance.
No Interest may be directly or indirectly assigned, sold, transferred or
otherwise disposed of, or pledged, hypothecated or otherwise encumbered, whether
voluntarily or involuntarily, in whole or in part (any such transaction being
referred to in this Article 7 as a "transfer"), except in accordance with the
terms of this Article 7, Article 11 hereof or as otherwise specifically provided
in this Agreement. Notwithstanding the foregoing, Clearwire may, at any time in
connection with other debt financing, pledge its Units, including any pledges
currently required under the Indenture. Further, this Article 7 shall not apply
to any transfers by Clearwire to any of its Affiliates, to any indirect
transfers
28
resulting from any change of control of Clearwire, or to any transfers by
Clearwire arising by operation of law.
Section 7.2. Drag-Along Rights.
In the event that Clearwire (together with its Affiliates) commits to
transfer 25% or more of its Units or Interests in the Company, in a bona fide
arm's-length transaction, or a series of related bona fide arm's length
transactions, to a person or entity that is not an Affiliate of Clearwire, then
Clearwire will provide notice (the "Drag Notice") to the other Members
identifying the Units or Interest to be sold and the price to be paid therefor.
Within ten (10) days of the Drag Notice, Clearwire shall have the ability to
require all other Members to transfer their pro rata shares of their Units or
Interests to the potential buyer at the same price and upon the same terms and
conditions as Clearwire is transferring its Units or Interest (the "Drag
Rights").
Section 7.3. Tag-Along Rights.
If Clearwire does not invoke its Drag Rights, within fifteen (15) days of
the Drag Notice, then any Member may, if it so chooses, participate with
Clearwire with respect to such transfer by providing written notice of its
intention to do so (the "Tag Notice"). Such Tag Notice shall constitute the
Member's irrevocable election to cause the transferee to purchase, at the same
price and upon the same terms and conditions as those received by the Clearwire,
a pro rata portion of the Member's Units or Interest in the Company and the
Units or Interest to be purchased from Clearwire shall be reduced accordingly.
Section 7.4. Rights of First Refusal.
If any Member other than Clearwire has received a bona fide, written,
binding offer and commitment (the "Offer") for the acquisition of any or all of
the Member's Units or Interest in the Company (the "Subject Company Interest"),
and the selling Member wishes to accept the Offer, then upon acceptance of the
Offer, the selling Member shall first provide Clearwire notice of the Offer,
which notice will identify the offeree and provide all of the material terms of
the offer, including the number of Units constituting the Subject Company
Interest, the purchase price of such Subject Company Interest and manner in
which the purchase price is to be paid. The notice shall constitute the selling
Member's binding offer to sell such Subject Company Interest to Clearwire on the
same terms. Clearwire shall have twenty (20) business days after delivery of
such notice to exercise its right to purchase all, but not less than all of, the
Subject Company Interest in the Company on the same terms and conditions as set
forth in the notice. If Clearwire does not elect to purchase the Subject
Interest within such twenty (20) day period, then the selling Member shall have
a period of ninety (90) days in which to close the sale of the Subject Company
Interest in accordance with the terms of the Offer. If such sale is not closed
within such 90 day period, then any proposed transfer by such Member of any
Units or Interest in the Company shall again be subject to this Section 7.4.
Section 7.5. Substituted Members.
Any transfer pursuant to Section 7.4 other than to Clearwire must be
approved in
29
writing by a Majority in Interest prior to any such transfer, such approval not
to be unreasonably withheld or delayed, and no such transferee shall become a
Member without such approval. Upon the admission of any such transferee as a
Member, the transferring Member shall be relieved of any obligation arising
under this Agreement subsequent to such transfer with respect to the Interest
being transferred, and if the transferring Member no longer holds any Interest,
the transferring Member shall be relieved of all obligations arising under this
Agreement except for its obligations under Section 6.5 or with respect to any
breach of this Agreement arising prior to such transfer.
Section 7.6. Alternative Sale Rights.
(a) In the event that Clearwire or any Clearwire Affiliate that
directly or indirectly owns or controls Clearwire (each, a "Clearwire
Seller") commits to sell all of its stock or membership interests or all or
substantially all of its assets, in a bona fide arm's-length transaction or
a series of related bona fide arm's length transactions (an "Alternative
Transaction") to a Person that is not an Affiliate of the Clearwire Seller,
then the Clearwire Seller will have the option, by providing written notice
(the "Alternative Rights Notice") to the other Members, to require all
other Members (each, a "Selling Member") to sell their Interest to the
Clearwire Seller in exchange for a purchase price equal to the Fair Market
Value of the Selling Member's Interest in the Company (the "Alternative
Transaction Purchase Price"). For purposes of this Section 7.6, "Fair
Market Value" shall be determined as of the Adjustment Date by the Neutral
Bank, which determination shall be conclusive and binding on all parties.
(b) If the consideration being received by the Clearwire Seller in the
Alternative Transaction consists of securities and/or other noncash assets,
(i) such securities and/or other noncash assets shall be deemed to have a
Fair Market Value for the purposes of this Section 7.6 equal to the value
established for such securities and/or other noncash assets in the
Alternative Transaction, and (ii) to satisfy the Alternative Transaction
Purchase Price, in lieu of paying cash, the Clearwire Seller shall have the
option to deliver to each Selling Member a portion of such securities
and/or other noncash assets received in the Alternative Transaction with a
Fair Market Value equal to the Alternative Transaction Purchase Price
payable to such Selling Member. Upon any election by the Clearwire Seller
under this subsection (b), each Selling Member shall be required to enter
into any agreements contemplated in the Alternative Transaction to be
entered into by the recipients of securities and/or other noncash assets in
such Alternative Transactions.
Section 7.7. Invalid Transfers Void. Any purported transfer of an Interest
or any part thereof not in compliance with the foregoing provisions of this
Article 7 shall be void and of no force or effect and the transferring Member
shall be liable to the other Members and the Company for all liabilities,
obligations, damages, losses, costs and expenses (including but not limited to
reasonable attorneys' fees and court costs) arising out of such noncomplying
transfer.
Section 7.8. No Change of Control. Neither the Hawaiian Member nor any of
30
its interest holders shall take any action or fail to take any action that could
result in a change of control of the Hawaiian Member, without the prior written
consent of Clearwire, which may be given or withheld in its discretion. A
"Change of Control" for the purposes of this Agreement shall mean (i) a sale of
all or substantially all of the assets of the Hawaiian Member or its interest
holders, as applicable; (ii) the transfer by the Hawaiian Member or its interest
holders, as applicable, by means of a merger, consolidation, reorganization,
recapitalization or otherwise, of more than 50% of the voting power of the
Hawaiian Member or its interest holders, as applicable; or (iii) the transfer by
the Hawaiian Member or its interest holders, whether contractually or otherwise,
of the right to appoint the manager or a majority of the board of directors of
the Hawaiian Member or its interest holders, as applicable, or the power to
director or cause the direction of the management and policies of the Hawaiian
Member or its interest holders.
Section 7.9. Certain Determinations
Except as provided in Section 7.6, Fair Market Value shall be determined in
the following manner:
Within fifteen days after the delivery of the notice requiring such
determination, the Members shall attempt in good faith to agree on the
Fair Market Value, and if the parties fail within fifteen days
thereafter to agree thereon, the Company and the Member shall attempt
to reach agreement upon a qualified independent appraiser experienced
in the valuation of closely held businesses and properties of the kind
held by the Company. If the parties are unable to agree upon a single
appraiser within thirty (30) days of the occurrence of the event
requiring computation of a Fair Market Value, then either party shall
be entitled to notify the other of such party's institution of a
three-appraiser procedure. Within ten (10) days of such notice, each
party shall appoint a qualified independent appraiser experienced in
the valuation of closely held businesses and properties of the kind
held by the Company. The two appraisers shall appoint a third
similarly qualified appraiser; and each appraiser shall complete an
appraisal within sixty (60) days of appointment of the first
appraiser. The Fair Market Value shall be determined by the median
appraisal. Each party shall bear the costs associated with the
appraisers it selected, and the costs associated with the third
appraiser (and any court costs), shall be split evenly between the
Company and the Member, if applicable. If either party shall fail to
appoint an appraiser within the allotted time period, or if either
such appraiser shall fail to complete the appraisal within the
allotted time period, the appraisal of the appraiser appointed by the
other party shall be final and binding, and shall control the
determination of the Fair Market Value.
ARTICLE 8
CERTAIN AGREEMENTS; REPRESENTATIONS AND WARRANTIES
31
Section 8.1. Prohibited Actions. During the term of this Agreement, the
Company shall not take any action or omit to take an action if such action or
omission, as the case may be, would (i) cause the Company to be in violation of
FCC Law or any rule, regulation, practice, policy or opinion promulgated,
applied or followed by the FCC, or cause the Company or any Member or any
Affiliate thereof to be required to divest an Interest in the Company or asset
in order to comply with any such Law, or (ii) cause the Company or any Member or
any Affiliate thereof to be ineligible to participate in any auction, tender,
business combination or similar transaction.
Section 8.2. Additional Covenants of the Members
(a) The Company shall at all times (i) observe all corporate or
limited liability company formalities, as the case may be, including the
maintenance of current minute books, (ii) maintain, separate from any other
Person, its own separate and distinct books of account, bank accounts and
corporate or limited liability company records, (iii) maintain separate
financial statements and cause its financial statements to be prepared and
maintained in accordance with GAAP in a manner that indicates its assets
and liabilities, (iv) pay all its liabilities out of its own funds
(including the salaries of its employees), and (v) maintain an arm's-length
relationship with its Affiliates.
(b) No Member other than Clearwire shall (i) pledge its assets for the
benefit of any other Person, (ii) commingle its assets with those of any
other Person, (iii) assume or guarantee the liabilities or obligations of
any other Person or otherwise hold out its credit as being available or
able to satisfy the indebtedness, liabilities or obligations of any other
Person, (iv) acquire obligations or securities of, or make loans or
advances to, any of its Affiliates, (v) permit there to be a complete
identity of its managers and officers with the managers and officers of any
of its Affiliates, (vi) incur any indebtedness, liabilities or obligations
relating to the operation of its business, or (vii) engage in any business
activities other than holding and managing its Interests.
Section 8.3. Representations and Warranties of the Members
Each of Clearwire and Hawaiian Member represents and warrants to the other
that:
(a) it is a corporation or limited liability company duly organized
and subsisting in the jurisdiction of its organization;
(b) it has all requisite power and authority and has taken all action
necessary in order to execute and deliver this Agreement;
(c) this Agreement has been duly executed and delivered by it and is a
valid and binding agreement of it enforceable against it 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;
32
(d) no notices, reports or other filings are required to be made by it
with, nor are any consents, registrations, approvals, permits or
authorizations required to be obtained by it from, any Governmental Entity,
in connection with its execution and delivery of this Agreement, except
those that have been made or obtained or that the failure to make or obtain
are not, individually or in the aggregate, reasonably likely to (x) result
in a material adverse effect on the Company or (y) prevent, materially
delay or materially impair its ability to perform its obligations under
this Agreement;
(e) the execution, delivery and performance of this Agreement by it
does not, and the consummation by it of the transactions contemplated
hereby will not, constitute or result in (i) a breach or violation of, or a
default under, its articles of organization, limited liability company
agreement and other constitutive documents, (ii) a breach of or violation
of or a default under, or the acceleration of any obligations of or the
creation of a lien or encumbrance on its assets (with or without notice,
lapse of time or both) pursuant to, any contracts binding upon it or any
applicable law or governmental or non-governmental permit or license to
which it is subject or (iii) any change in the rights or obligations of any
party under any of such contracts to which it is a party, except, in the
case of clause (ii) or (iii) above, for any breach, violation, default,
acceleration, creation or change that, individually or in the aggregate, is
not reasonably likely to (x) result in a material adverse effect on the
Company or (y) prevent, materially delay or materially impair its ability
to perform its obligations under this Agreement;
(f) there is no (i) legal action, claim, proceeding, investigation or
controversy pending or, to its knowledge, threatened against it, or (ii)
judgment, order, award or consent decree outstanding against or affecting
it, which in either event is reasonably likely to (x) result in a material
adverse effect on the Company or (y) materially delay or materially impair
its ability to perform its obligations under this Agreement; and
(g) with respect to Clearwire, it has access to funds sufficient to
perform its obligations under Section 2.2, and with respect to the Hawaiian
Member, it has funds sufficient to perform its obligations under the
Subscription Agreement.
Section 8.4. Additional Representations and Warranties of Clearwire.
Clearwire has good and marketable title to the Clearwire Assets, free and clear
of all material liens and encumbrances, other than those liens and encumbrances
described in the Security Agreement and Pledge Agreement, each dated August 5,
2005, as amended, securing the obligations of Clearwire Corporation to the
holders of the Notes of the Company dated August 5, 2005 and February 16, 2006
as described in that certain Indenture dated August 5, 2005, as amended, between
Clearwire and the Bank of New York as the Trustee, as amended, ordinary course
business liabilities and liabilities relating directly to such Clearwire Assets
(e.g. lease payments), and such other liabilities that in the aggregate are not
material to the operation of the Clearwire Assets as currently operated. The
Company will assume all of the liabilities directly associated with the
Clearwire Assets.
33
Section 8.5. Additional Representations and Warranties of Hawaiian Member.
Prior to the date of consummation of the transactions contemplated by Section
2.2, the Company has engaged in no business or operations and has no assets or
liabilities of any kind. There are no rights, agreements or arrangements
relating to the issuance of equity of the Company other than as contemplated by
the Subscription Agreement and this Agreement.
Section 8.6. Representations and Warranties of the Company. Prior to the
date of consummation of the transactions contemplated by Section 2.2, the
Company has engaged in no business or operations.
ARTICLE 9
DISSOLUTION AND TERMINATION
Section 9.1. No Termination
Except as expressly provided in this Agreement or as otherwise provided by
law, no Member shall have the right, and each Member hereby agrees not, to
dissolve, terminate or liquidate the Company, or to resign or withdraw as a
Member.
Section 9.2. Events of Dissolution
The Company shall be dissolved upon the first to occur of the following:
(i) the agreement in writing of all of the Members to dissolve
the Company, but only on the effective date of dissolution specified
by the Members in such agreement; or
(ii) the election by a Majority in Interest within ninety (90)
days after the sale, exchange, condemnation or involuntary transfer of
all or substantially all of the assets of the Company.
Section 9.3. Procedures Upon Dissolution
(a) General. In the event the Company dissolves it shall commence
winding up pursuant to the appropriate provisions of the Act and the
procedures set forth in this Section 9.3. Notwithstanding the dissolution
of the Company, until the winding up of the Company's affairs is completed,
the business of the Company and the affairs of the Members, as such, shall
continue to be governed by this Agreement.
(b) Control of Winding Up. The winding up of the Company shall be
conducted under the direction of the Manager or such other Person as may be
designated by a court of competent jurisdiction (herein sometimes referred
to as the "Liquidator"); provided that any Member whose breach of this
Agreement shall have caused the dissolution of the Company shall not
participate in the control of the winding up of the Company; and provided
further, that if the dissolution is caused by entry of a decree of judicial
dissolution, the winding up shall be carried out in accordance with such
decree.
34
(c) Manner of Winding Up. The Company shall engage in no further
business following dissolution other than necessary for the orderly winding
up of business and distribution of assets. The Company's maintenance of
offices shall not be deemed a continuation of business for purposes of this
Section 9.3. Upon dissolution of the Company, the Liquidator shall, subject
to Section 9.3(a), first attempt to distribute assets in kind if it can
obtain the consent of a Majority in Interest and, to the extent necessary,
the creditors of the Company. If such consent is not obtained, the
Liquidator shall sell all of the Company's property in such manner and on
such terms as it deems fit, consistent with its fiduciary responsibility
and having due regard to the activity and condition of the relevant market
and general financial and economic conditions. Except as otherwise provided
in Section 9.3(d)(ii) each Member shall share net profits, net losses and
other items after the dissolution of the Company and during the period of
winding up in the same manner as described in Article 3.
(d) Application of Assets. Upon dissolution of the Company, the
Company's assets (which shall, after the sale or sales referenced in
Section 9.3(c), consist of the proceeds thereof) shall be applied as
follows:
(i) Creditors. To creditors, including Members who are creditors,
to the extent otherwise permitted by law, in satisfaction of
liabilities of the Company (whether by payment or the reasonable
provision for the payment thereof). Any reserves set up by the
Liquidator may be paid over by the Liquidator to an escrow agent or
trustee, to be held in escrow or trust for the purpose of paying any
such contingent or unforeseen liabilities or obligations, and, at the
expiration of such period as the Liquidator may deem advisable, such
reserves shall be distributed to the Members or their assigns in the
manner set forth in Section 9.3(d)(ii).
(ii) Members. By the end of the tax year in which the liquidation
occurs (or, if later, within ninety (90) days after the date of such
liquidation), to the Members in proportion to the positive balances of
their respective Capital Accounts, as determined after taking into
account all Capital Account adjustments for the taxable year during
which the liquidation occurs (other than those made pursuant to this
Section 9.3(d)(ii)).
Section 9.4. Termination
Upon completion of the winding up of the Company and the distribution of
all Company assets, the Company's affairs shall terminate and the Members shall
cause to be executed and filed any and all documents required by the Act to
effect the termination of the Company.
ARTICLE 10
SURVIVAL, LIABILITY AND INDEMNIFICATION
35
Section 10.1. No Personal Liability
(a) Except as otherwise provided by the Act, the debts, obligations
and liabilities of the Company, whether arising in contract, tort or
otherwise, shall be solely the debts, obligations and liabilities of the
Company, and no Member or other Indemnified Party (as defined in paragraph
(b) below) shall be obligated personally for any such debt, obligation or
liability of the Company solely by reason of being a Indemnified Party.
(b) No Member or Member's Affiliate, or any of their respective
shareholders, directors, officers, employees, agents, members, managers, or
partners (each, an "Indemnified Party") shall be liable, responsible or
accountable in damages or otherwise to the Company or to any other
Indemnified Party for any act or omission performed or made by a
Indemnified Party in connection with the transactions contemplated hereby,
whether for mistake of judgment or negligence or other action or inaction,
unless such action or omission constitutes a breach of this Agreement,
willful misconduct, gross negligence, bad faith or conduct violating
Section 18-607 of the Act. Each Indemnified Party may consult with counsel,
accountants and other experts in respect of the affairs of the Company and
such Indemnified Party shall be fully protected and justified in any action
or inaction which is taken in good faith in accordance with the advice or
opinion of such counsel, accountants or other experts, provided that they
shall have been selected with reasonable care.
(c) The Company shall protect, indemnify and defend each Indemnified
Party against, and hold each harmless from, (i) all claims, liabilities and
expenses of whatever nature arising out of the conduct of the business of,
or any other activities undertaken in connection with or by, the Company or
the ownership and use of their respective properties and assets and (ii)
any acts or omissions performed or made by a Member pursuant to this
Agreement unless the Member's action or omission constituted a breach of
this Agreement, constituted willful misconduct, gross negligence, bad faith
or conduct violating Section 18-609 of the Act, or as a result of which
action or omission such Member gained in fact a financial profit or other
advantage to which such Member was not legally entitled. The
indemnification authorized under this Section 10.1(c) shall include payment
on demand (with appropriate evidence of the amounts claimed) of reasonable
attorneys' fees and other expenses incurred in connection with, or in
settlement of, any legal proceedings between the Indemnified Party and a
third party and the removal of any Liens affecting any property of the
Indemnified Party. Such indemnification rights shall be in addition to any
and all rights, remedies and recourse to which any Indemnified Party shall
be entitled, whether or not pursuant to the provisions of this Agreement,
at law or in equity. The indemnities provided for in this Section 10.1(c)
shall be recoverable only from the assets of the Company, and there shall
be no recourse to any Member or other Person for the payment of such
indemnities.
Section 10.2. Survival; Exclusivity
36
The representations and warranties made in this Agreement shall survive
until twelve (12) months and shall thereupon expire together with any right to
indemnification in respect thereof (except to the extent a written notice
asserting a claim for breach of any such representation or warranty and
describing such claim in reasonable detail shall have been given on or prior to
such date to the party which made such representation or warranty). Except with
respect to claims referred to in the immediately preceding sentence, the sole
and exclusive remedy of the parties for any breach or inaccuracy of any
representation or warranty contained in this Agreement, or any other claim
(whether or not alleging a breach of this Agreement) that arises out of the
facts and circumstances constituting such breach or inaccuracy, shall be the
indemnities provided in this Article 10. Subject to the provisions of Section
6.8, the sole and exclusive remedy in respect of a breach of this Agreement
(other than such a breach arising out of the gross negligence or willful
misconduct of the breaching party) shall be the indemnity provided in this
Article 10.
Section 10.3. Procedures
(a) The terms of this Section 10.3 shall apply to any claim (a
"Claim") for indemnification under the terms of Sections 10.1. The
Indemnified Party shall give prompt written notice of such Claim to the
indemnifying party (the "Indemnifying Party") under the applicable Section,
which party may assume the defense thereof, provided that any delay or
failure to so notify the Indemnifying Party shall relieve the Indemnifying
Party of its obligations hereunder only to the extent, if at all, that it
is materially prejudiced by reason of such delay or failure. Any such
notice shall (i) describe in reasonable detail the facts and circumstances
with respect to the Claim being asserted and (ii) refer to this Article 10.
The Indemnified Party shall have the right to approve any counsel selected
by the Indemnifying Party and to approve the terms of any proposed
settlement, such approval not to be unreasonably delayed or withheld
(unless such settlement provides only, as to the Indemnified Party, the
payment of money damages actually paid by the Indemnifying Party and a
complete release of the Indemnified Party in respect of the Claim in
question). Notwithstanding any of the foregoing to the contrary, the
provisions of this Article 10 shall not be construed so as to provide for
the indemnification of any Indemnified Party for any liability to the
extent (but only to the extent) that such indemnification would be in
violation of applicable law or that such liability may not be waived,
modified or limited under applicable law, but shall be construed so as to
effectuate the provisions of this Article 10 to the fullest extent
permitted by law.
(b) In the event that the Indemnifying Party undertakes the defense of
any Claim, the Indemnifying Party will keep the Indemnified Party advised
as to all material developments in connection with such Claim, including,
but not limited to, promptly furnishing the Indemnified Party with copies
of all material documents filed or served in connection therewith. The
Indemnified Party shall provide reasonable assistance to the Indemnifying
Party in the defense of the Claim.
(c) In the event that the Indemnifying Party fails to assume the
defense of
37
any Claim within ten (10) business days after receiving written notice
thereof, the Indemnified Party shall have the right, subject to the
Indemnifying Party's right to assume the defense pursuant to the provisions
of this Article 10, to undertake the defense, compromise or settlement of
such Claim for the account of the Indemnifying Party. Unless and until the
Indemnifying Party assumes the defense of any Claim, the Indemnifying Party
shall advance to the Indemnified Party any of its reasonable attorneys'
fees and other costs and expenses incurred in connection with the defense
of any such Claim. Each Indemnified Party shall agree in writing prior to
any such advance that, in the event he or it receives any such advance,
such Indemnified Party shall reimburse the Indemnifying Party for such
fees, costs and expenses to the extent that it shall be determined that he
or it was not entitled to indemnification under this Article 10.
(d) Notwithstanding any of the foregoing to the contrary, the
provisions of this Article 10 shall not be construed so as to provide for
the indemnification of any Indemnified Party for any liability to the
extent (but only to the extent) that such indemnification would be in
violation of applicable law or such liability may not be waived, modified,
or limited under applicable law, but shall be construed so as to effectuate
the provisions of this Article 10 to the fullest extent permitted by law;
provided, that if and to the extent that the Indemnifying Party's
indemnification obligation under this Article 10 is unenforceable for any
reason, the Indemnifying Party hereby agrees to make the maximum
contribution permissible under applicable law to the payment and
satisfaction of the losses of the Indemnified Party, except to the extent
such losses are found in a final, nonappealable judgment by a court of
competent jurisdiction to have resulted from the Indemnified Party's gross
negligence or willful misconduct.
Section 10.4. Directors' and Officers' Insurance
The Company may provide appropriate directors' and officers' insurance to
the extent such insurance is available to the Company on commercially reasonable
terms.
ARTICLE 11
MISCELLANEOUS
Section 11.1. Entire Agreement
This Agreement in effect on the date hereof, together with any schedules
and exhibits hereto and thereto, contain the entire agreement and understanding
of the Members and the Company relating to the subject matter hereof and
supersede all prior negotiations, proposals, offers, agreements and
understandings (written or oral) relating to such subject matter.
Section 11.2. Amendment; Waiver
The Manager may make the following amendments to this Agreement on behalf
of all of the Members: (i) any amendment reasonably necessary, in the opinion of
counsel for the Company, to satisfy the requirements of the Code with respect to
the tax laws
38
applicable to the Company or of any federal or state securities laws or
regulations, provided such amendment does not adversely affect the interest of
any Member; (ii) any amendment to change the name of the Company or the location
of its principal place of business, and any amendment to Schedule 3.6 made in
accordance with Section 3.6(a); and (iii) any amendment to correct a scrivener's
error in this Agreement and any certificates filed in connection therewith;
provided that any other amendment or modification of this Agreement or any
provision hereof may be made only upon the consent or approval of a Majority in
Interest. No failure or delay of any Member in exercising any power or right
hereunder shall operate as a waiver thereof, nor shall any single or partial
exercise of any such right or power, or any abandonment or discontinuance of
steps to enforce any such right or power, preclude any other further exercise
thereof or the exercise of any other right or power. No waiver by any Member of
any departure by any other Member from any provision of this Agreement shall be
effective unless the same shall be in a writing signed by the Member against
which enforcement of such waiver or consent is sought, and then such waiver or
consent shall be effective only in the specific instance and for the specific
purpose for which it was given. No notice or similar communication by any Member
to another shall entitle such other Member to any other or further notice or
similar communication in similar or other circumstances, except as specifically
provided herein.
Section 11.3. Specific Performance
The Members acknowledge that money damages may not be an adequate remedy
for violations of this Agreement and that any Member may, in its sole
discretion, in an arbitration or a court of competent jurisdiction to the extent
permitted hereunder, apply for specific performance or injunctive or other
relief as such arbitration or court may deem just and proper in order to enforce
this Agreement or to prevent violation hereof and, to the extent permitted by
applicable law, each Member waives any objection to the imposition of such
relief.
Section 11.4. Remedies Cumulative
All rights, powers and remedies provided under this Agreement or otherwise
available in respect hereof at law or in equity shall, unless otherwise
specifically provided herein, be cumulative and not alternative, and the
exercise or beginning of the exercise of any thereof by a Member shall not
preclude the simultaneous or later exercise of any other such right, power or
remedy by such Member.
Section 11.5. Successors and Assigns
This Agreement shall be binding upon and shall inure to the benefit of the
Members and their respective successors and permitted assigns. No Member may
assign its rights or delegate its duties under this Agreement without the
written consent of the other Members except to the extent expressly provided in
this Agreement.
Section 11.6. No Third Party Beneficiaries
This Agreement is entered into solely for the benefit of the Members and no
39
Person other than the Members, their respective successors and permitted
assigns, and (to the extent provided in Article 10) the Persons entitled to
indemnification pursuant to Article 10, may exercise any right or enforce any
obligation hereunder.
Section 11.7. Further Assurances
Each Member will execute and deliver such further documents and take such
further actions as any other Member may reasonably request consistent with the
provisions hereof in order to effect the intent and purposes of this Agreement.
Section 11.8. Notices
All notices or other communications hereunder shall be in writing and shall
be deemed to have been duly given or made (i) upon delivery if delivered
personally (by courier service or otherwise) or (ii) upon confirmation of
dispatch if sent by facsimile transmission (which confirmation shall be
sufficient if shown by evidence produced by the facsimile machine used for such
transmission), in each case to the applicable addresses set forth below (or such
other address as the recipient may specify in accordance with this Section):
If to Hawaiian Member:
Shichinin, LLC
c/o U.S. Pacific Capital Co., Ltd.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇
Fax (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to:
▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇▇, Esq.
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
If to Clearwire:
Clearwire US LLC
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇. ▇.▇.
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇, General Counsel
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to:
40
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇, Esq.
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Section 11.9. Governing Law
This Agreement shall be governed by and construed in accordance with the
internal laws of the State of Delaware, without regard to principles of
conflicts of law.
Section 11.10. Severability
If any term of this Agreement or the application thereof to any Member or
any circumstance shall be held invalid or unenforceable to any extent, the
remainder of this Agreement and the application of such term to the other
Members or circumstances shall not be affected thereby and shall be enforced to
the greatest extent permitted by applicable law, so long as the economic and
legal substance of this Agreement and the actions contemplated hereby is not
affected in any manner adverse to any Member.
Section 11.11. Independent Contractors
The Members are independent contractors, and this Agreement does not create
a partnership or agency relationship among the Members, or any other
relationship between the Members except as expressly set forth herein. No Member
shall have any right or authority to assume, create or incur any liability or
obligation, express or implied, in the name or on behalf of any other Member.
Section 11.12. Disposition of Interests
Upon the sale or other disposition by a Person of all its Interests in the
Company, following which such Person and Affiliate thereof is no longer a Member
of the Company, this Agreement shall terminate as to such Member and its
Affiliates except as provided in Section 11.13 below.
Section 11.13. Survival of Rights and Duties
Termination of this Agreement for any reason shall not relieve any Member
of any liability which at the time of termination has already accrued to such
Member or which thereafter may accrue in respect of any act or omission prior to
such termination, nor shall any such termination affect in any way the survival
of any right, duty or obligation of any Member which is expressly stated
elsewhere in this Agreement to survive termination hereof. Section 6.5 and
Articles 10 and 11 shall survive any termination of this Agreement.
Section 11.14. Counterparts
41
This Agreement may be executed in any number of counterparts, each of which
shall be deemed to be an original, but all of which together shall constitute
one instrument.
Section 11.15. Construction
The captions used herein are for convenience of reference only and shall
not affect the interpretation or construction hereof. All pronouns and any
variations thereof shall be deemed to refer to the masculine, feminine, neuter,
singular or plural as the context may require. Unless otherwise specified, (a)
the terms "hereof," "herein" and similar terms refer to this Agreement as a
whole, (b) references herein to Articles or Sections refer to articles or
sections of this Agreement and (c) the word "including" connotes the words
"including without limitation" unless the context requires otherwise.
Section 11.16. No Right to Partition
No Member shall have the right to bring an action for partition against the
Company. Each of the Members hereby irrevocably waives any and all rights which
it may have to maintain an action to partition Company property or to compel any
sale or transfer thereof.
Section 11.17. Securities
The Interests shall constitute "securities" within the meaning of (i)
Article 8 of the Uniform Commercial Code (including Section 8-102(a)(15)
thereof) as in effect from time to time in the State of Delaware and (ii) the
Uniform Commercial Code of any other applicable jurisdiction that now or
hereafter substantially includes the 1994 revisions to Article 8 thereof as
adopted by the American Law Institute and the National Conference of
Commissioners on Uniform State Laws and approved by the American Bar Association
on February 14, 1995.
[Signature page follows]
42
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first above written.
CLEARWIRE US LLC
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------------
Title: Vice President
---------------------------------
SHICHININ, LLC
By Its Managing Member
U.S. Pacific Capital Co., Ltd.
By /s/ ▇▇▇▇ ▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇
Title: President/CEO
TABLE OF CONTENTS
Page
----
ARTICLE 1 GENERAL........................................................ 1
Section 1.1. Name................................................... 1
Section 1.2. Principal Place of Business; Registered Office
and Agent.............................................. 1
Section 1.3. Term................................................... 1
Section 1.4. Purpose and Powers..................................... 2
Section 1.5. Filings................................................ 2
Section 1.6. Sole Agreement......................................... 2
Section 1.7. Definitions............................................ 2
ARTICLE 2 CAPITALIZATION................................................. 9
Section 2.1. Capital Accounts....................................... 9
Section 2.2. Initial Capital Contributions.......................... 9
Section 2.3. Hawaiian Member Contribution Option.................... 10
Section 2.4. Additional Contributions............................... 11
Section 2.5. No Withdrawals......................................... 11
Section 2.6. No Interest on Capital Contribution.................... 11
Section 2.7. No Third Party Beneficiaries........................... 11
Section 2.8. Preemptive Right....................................... 12
ARTICLE 3 PROFITS AND LOSSES............................................. 14
Section 3.1. Allocation of Net Profit and Loss - In General......... 14
Section 3.2. Special Allocations.................................... 15
Section 3.3. Corrective Allocations................................. 15
Section 3.4. Other Allocation Rules................................. 16
Section 3.5. Allocation of Excess Nonrecourse Liabilities........... 16
Section 3.6. Allocations in Connection with Varying Interests....... 16
Section 3.7. Determination of Net Profit or Loss.................... 16
Section 3.8. Mandatory Tax Allocations Under Code Section 704(c).... 17
ARTICLE 4 DISTRIBUTIONS.................................................. 17
Section 4.1. Distributable Cash..................................... 17
Section 4.2. Liquidating Distributions.............................. 18
Section 4.3. Other Distributions.................................... 18
ARTICLE 5 ACCOUNTING AND RECORDS......................................... 18
Section 5.1. Fiscal Year............................................ 18
Section 5.2. Method of Accounting................................... 18
Section 5.3. Books and Records; Inspection.......................... 18
Section 5.4. Financial Statements................................... 19
Section 5.5. Operations Reporting................................... 19
Section 5.6. Taxation............................................... 19
Section 5.7. Internal Control Over Financial Reporting.............. 21
Page
----
ARTICLE 6 MANAGEMENT..................................................... 22
Section 6.1. Manager................................................ 22
Section 6.2. Meeting Requirements................................... 22
Section 6.3. Actions Requiring Majority Approval.................... 23
Section 6.4. Actions by Members..................................... 25
Section 6.5. Confidentiality........................................ 25
Section 6.6. Non-Competition........................................ 27
Section 6.7. Duties................................................. 27
Section 6.8. Dispute Resolution..................................... 28
ARTICLE 7 TRANSFER OR ENCUMBRANCE OF INTERESTS........................... 28
Section 7.1. General Restriction on Transfer or Encumbrance......... 28
Section 7.2. Drag-Along Rights...................................... 29
Section 7.3. Tag-Along Rights....................................... 29
Section 7.4. Rights of First Refusal................................ 29
Section 7.5. Substituted Members.................................... 29
Section 7.6. Alternative Sale Rights................................ 30
Section 7.7. Invalid Transfers Void................................. 30
Section 7.8. No Change of Control................................... 30
Section 7.9. Certain Determinations................................. 31
ARTICLE 8 CERTAIN AGREEMENTS; REPRESENTATIONS AND WARRANTIES............. 31
Section 8.1. Prohibited Actions..................................... 32
Section 8.2. Additional Covenants of the Members.................... 32
Section 8.3. Representations and Warranties of the Members.......... 32
Section 8.4. Additional Representation and Warranties of Clearwire.. 33
ARTICLE 9 DISSOLUTION AND TERMINATION.................................... 34
Section 9.1. No Termination......................................... 34
Section 9.2. Events of Dissolution.................................. 34
Section 9.3. Procedures Upon Dissolution............................ 34
Section 9.4. Termination............................................ 35
ARTICLE 10 SURVIVAL, LIABILITY AND INDEMNIFICATION....................... 35
Section 10.1. No Personal Liability.................................. 36
Section 10.2. Survival; Exclusivity.................................. 36
Section 10.3. Procedures............................................. 37
Section 10.4. Directors' and Officers' Insurance..................... 38
ARTICLE 11 MISCELLANEOUS................................................. 38
Section 11.1. Entire Agreement....................................... 38
Section 11.2. Amendment; Waiver...................................... 38
Section 11.3. Specific Performance................................... 39
Section 11.4. Remedies Cumulative.................................... 39
Section 11.5. Successors and Assigns................................. 39
Section 11.6. No Third Party Beneficiaries........................... 39
Section 11.7. Further Assurances..................................... 40
ii
Page
----
Section 11.8. Notices................................................ 40
Section 11.9. Governing Law.......................................... 41
Section 11.10. Severability........................................... 41
Section 11.11. Independent Contractors................................ 41
Section 11.12. Disposition of Interests............................... 41
Section 11.13. Survival of Rights and Duties.......................... 41
Section 11.14. Counterparts........................................... 41
Section 11.15. Construction........................................... 42
Section 11.16. No Right to Partition.................................. 42
Section 11.17. Securities............................................. 42
Schedule 2.2 - Clearwire Assets
Schedule 3.6 - Tax Allocations
Schedule 5.5 - Operational Information
Exhibit A - Assignment and Assumption Agreement
Exhibit B - ▇▇▇▇ of Title Transfer
Exhibit C - Trademark Licensing Agreement
iii
SCHEDULE 2.2
CLEARWIRE ASSETS
[***]
[*** Confidential Treatment Requested]
[***]
[*** Confidential Treatment Requested]
ii
[***]
[*** Confidential Treatment Requested]
iii
[***]
[*** Confidential Treatment Requested]
iv
[***]
[*** Confidential Treatment Requested]
v
[***]
[*** Confidential Treatment Requested]
vi
[***]
[*** Confidential Treatment Requested]
[***]
[*** Confidential Treatment Requested]
EXHIBIT A
ASSIGNMENT AND ASSUMPTION AGREEMENT
EXHIBIT B
▇▇▇▇ OF TITLE TRANSFER
EXHIBIT C
TRADEMARK LICENSING AGREEMENT