EXHIBIT 4.4
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (the "Agreement") dated as of March 16,
2004, is by and between CLEARWIRE CORPORATION, a Delaware corporation (the
"Company"), and the investors identified on Exhibit A attached hereto (each, an
"Investor").
WHEREAS, each Investor has acquired and holds as of the date of this
Agreement shares of Class A common stock, $0.0001 par value, of the Company (the
"Class A Common Stock") or securities convertible into shares of Class A Common
Stock; and
WHEREAS, the Company wishes to grant certain registration rights with
respect to the shares of Class A Common Stock issued to Investor, as provided
further herein.
NOW THEREFORE, in consideration of the promises herein contained and other
good and valuable consideration, the parties hereto agree as follows:
1. Definitions. As used in this Agreement:
(i) the term "Act" means the Securities Act of 1933, as amended, and
the rules and regulations thereunder;
(ii) the term "Affiliate" means any entity, or any employee or member
of any entity, over which Investor has direct or indirect majority voting
control or which has direct or indirect majority voting control over Investor;
(iii) the term "Commission" means the Securities and Exchange
Commission or any other federal agency at the time administering the Act;
(iv) the term "Common Stock" means any and all classes of the
Company's common stock as authorized pursuant to the Company's Amended Restated
Certificate of Incorporation, as may be amended or restated from time to time;
(v) the term "Exchange Act" means the Securities Exchange Act of 1934,
as amended, and the rules and regulations thereunder;
(vi) the term "Holder" means each Investor, as long as an Investor
owns Registrable Securities, and any Permitted Transferee of an Investor to whom
the registration rights conferred by this Agreement have been transferred in
compliance with Section 12;
(vii) the terms "register," "registered" and "registration" mean a
registration effected by preparing and filing a registration statement in
compliance with the Act (and any post-effective amendments filed or required to
be filed) and the declaration or ordering of effectiveness of such registration
statement;
(viii) the term "Permitted Transferee" shall have the meaning set
forth in that certain Stockholders Agreement of even date herewith by and among
the Company, the Investors and the other stockholders identified therein, as
amended from time to time.
(ix) the term "Registrable Securities" means (A) the Class A Common
Stock, (B) any shares of Class A Common Stock issuable upon conversion of any
Class B Common Stock, par value $0.0001 per share, of the Company, and (C) any
capital stock of the Company issued as a dividend or other distribution with
respect to, or in exchange for or in replacement of, the shares of Class A
Common Stock; and
(x) the term "Registration Expenses" means all third-party expenses
incurred by the Company in compliance with Section 2 hereof, including, without
limitation, all registration and filing fees, printing expenses, fees and
disbursements of counsel for the Company, the underwriters and one special
counsel for the selling Holders, if any, blue sky fees and expenses and the
third-party expenses of any special audits incident to or required by any such
registration (but excluding underwriters' and brokers' discounts and
commissions).
2. Company Registration.
(a) Right to Register. Whenever Company proposes to register any of
its Common Stock under the Act (other than (i) a registration relating solely to
employee benefit plans, (ii) a registration relating to a corporate
reorganization or other transaction covered by Rule 145 under the 1933 Act,
(iii) a registration on any form that does not include substantially the same
information as would be required to be included in a registration statement
covering the sale of the Registrable Securities, or (iv) a registration in which
the only Common Stock being registered is Common Stock issuable upon conversion
of debt securities that are also being registered) and the registration form to
be used may be used for the registration of Registrable Securities (a "Piggyback
Registration"), Company will: (a) give prompt written notice thereof to each
Holder (which shall include a list of the jurisdictions in which Company intends
to attempt to qualify such securities under the applicable blue sky or other
state securities laws) and (b) upon the written request of a Holder given within
twenty (20) days after mailing of such notice by the Company, the Company shall,
subject to the provisions of this Section 2, use commercially reasonable efforts
to cause to be registered under the Act all of the Registrable Securities that
the Holder has requested to be registered.
(b) Right to Terminate Registration. Company shall have the right to
terminate, withdraw or delay any registration initiated by it under this Section
2 prior to the effectiveness of such registration whether or not any Holder has
elected to include securities in such registration. Company shall give written
notice of such determination to each Holder that has elected to include
securities in such registration and, in the case of a determination to terminate
or withdraw the registration statement, Company shall be relieved of its
obligation to register any Registrable Securities in connection with such
registration statement, and in the case of a determination to delay
effectiveness, Company shall be permitted to delay effectiveness for any period.
The expenses of such terminated, withdrawn or delayed registration shall be
borne by the Company in accordance with Section 2(e).
(c) Priority on Registrations. Each Holder acknowledges and agrees
that (i) its rights under this Section 2 shall be subject to cutback provisions
imposed by a managing underwriter under Section (d) and (ii) that the Company
may grant rights from time to time that have priority over the rights granted by
this Agreement if the Company determines that it is in its best interests to do
so; provided, however, the Company shall not grant superior rights to an
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Investor without granting such rights to all Holders. If, as a result of the
cutback provisions of the preceding sentence, a Holder is not entitled to
include all of its requested Registrable Shares in such registration, then the
Holder may elect to withdraw its request to include any or all of its
Registrable Shares in such registration.
(d) Underwritten Offerings. In the event of an underwritten offering,
each Holder shall make such arrangements with the underwriters so that such
Holder may participate in the offering on the same terms as the Company and any
other party selling securities in such offering. The Company shall not be
required under this Section 2 to include any of a Holder's securities in such
underwriting unless such Holder accepts the terms of the underwriting as agreed
upon between the Company and the underwriters selected by it (or by other
persons entitled to select the underwriters) and enters into an underwriting
agreement in customary form with an underwriter or underwriters selected by the
Company, and then only in such quantity as the underwriters determine in their
sole discretion will not jeopardize the success of the offering by the Company.
Notwithstanding any other provision of this Agreement, if the managing
underwriter(s) determine(s) in good faith that marketing factors require a
limitation of the number of shares to be underwritten, then the managing
underwriter(s) may exclude shares (including Registrable Securities) from the
registration and the underwriting, and the number of shares that may be included
in the registration and the underwriting shall be allocated, first, to the
Company, and second, to each of the Holders requesting inclusion of their
Registrable Securities in such registration statement on a pro rata basis based
on the total number of Registrable Securities then held by each such Holder. For
any Holder which is a partnership or corporation, the partners, retired partners
and shareholders of such Holder, or the estates and family members of any such
partners and retired partners and any trusts for the benefit of any of the
foregoing persons shall be deemed to be a single "Holder," and any pro rata
reduction with respect to such "Holder" shall be based upon the aggregate amount
of shares carrying registration rights owned by all entities and individuals
included in such "Holder," as defined in this sentence.
(e) Expenses of Company Registration. Company shall pay the
Registration Expenses, as well as all transfer taxes and brokerage and
underwriters' discounts and commissions attributable to the securities being
sold by the Company. Each Holder shall pay all fees and disbursements of its
accountants, if any, as well as all transfer taxes and brokerage and
underwriters' discounts and commissions attributable to the Registrable
Securities being sold by such Holder.
(f) Delay of Registration. Holder shall not have any right to obtain
or seek an injunction restraining or otherwise delaying any such registration as
the result of any controversy that might arise with respect to the
interpretation of this Section 2.
3. Form S-3 Registration.
(a) Beginning 90 days after the Company is eligible to register
Registrable Securities on Form S-3, each Holder shall have the right to demand
the Company effect a registration with respect to all or a part of its
Registrable Securities on Form S-3 and any related qualification or compliance.
Upon receipt of written request, the Company shall, as soon as practicable, (i)
give written notice of the proposed registration to all other Holders, and any
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related qualification and compliance, and (ii) effect such registration and all
such qualifications and compliances as may be so requested and as would permit
or facilitate the sale and distribution of all or such portion of such Holder's
Registrable Securities as are specified in such request and any other Holders
who notify the Company in writing within 10 business days after receipt of such
notice from the Company; provided, however, that the Company shall not be
obligated to effect any such registration, qualification or compliance pursuant
to this Section 3:
(i) if Form S-3 is not available for such offering by the Holder;
(ii) if the Holder, together with the holders of any other securities
of the Company entitled to inclusion in such registration, propose to sell
Registrable Securities and such other securities (if any) at an aggregate price
to the public of less than Five Million Dollars ($5,000,000);
(iii) if the Company shall furnish to the Holder a certificate signed
by the President or Chief Executive Officer of the Company stating that, in the
good faith judgment of the Board of Directors of the Company, it would be
seriously detrimental to the Company and its shareholders for such Form S-3
Registration to be effected at such time, in which event the Company shall have
the right to defer the filing of the Form S-3 registration statement no more
than once during any twelve (12) month period for a period of not more than one
hundred eighty (180) days following receipt of the request of the Holder under
this Section 3;
(iv) if the Company has, within the 12 month period preceding the date
of such request, already effected one (1) registration on Form S-3 per year
pursuant to this Section 3 in which the Holder's Registrable Securities were
included; provided, however, if all of Holder's Registrable Securities were not
included in the prior registration as a result of cutback provisions imposed by
a managing underwriter pursuant to Section 2(d) above, then Holder shall have
the right to demand one (1) additional registration on Form S-3;
(v) if the Company has already effected two (2) registrations on Form
S-3 pursuant to this Section 3; provided, however, if all of the Holders'
Registrable Securities that were requested to be included in a prior
registration pursuant to this Section 3 were not included in the prior
registration as a result of cutback provisions imposed by a managing underwriter
pursuant to Section 2(d) above, the Company shall be obligated to effect one (1)
additional registration on Form S-3;
(vi) in any particular jurisdiction in which the Company would be
required to qualify to do business or to execute a general consent to service of
process in effecting such registration, qualification or compliance.
(b) Expenses. Subject to the foregoing, the Company shall file a Form
S-3 registration statement covering the Registrable Securities and other
securities so requested to be registered pursuant to this Section 3 as soon as
practicable after receipt of the request of the Holder for such registration.
The Holders who wish to participate in an S-3 registration shall pay all
expenses incurred in connection with each registration requested pursuant to
this Section 3, except the first registration pursuant to this Section 3,
including without limitation all filing, registration and qualification,
printers' and accounting fees, fees and disbursements of counsel
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for the Company and the reasonable fees and disbursements of counsel for the
Holders (the "Form S-3 Registration Expenses"). For the first such registration
pursuant to this Section 3, the Company shall pay the Form S-3 Registration
Expenses (including only the reasonable fees and disbursements of one (1)
counsel for the Holders), excluding underwriters' or brokers' discounts and
commissions; provided, however, if all of the Holders' Registrable Securities
requested to be included in the first such registration were not included as a
result of cutback provisions imposed by a managing underwriter pursuant to
Section 2(d) above, the Company shall pay such expenses for one (1) additional
registration pursuant to this Section 3.
4. Registration Procedures. In the case of each registration effected by
the Company pursuant to Section 2 or Section 3, the Company will use
commercially reasonable efforts to effect such registration, including:
(a) Prepare and file with the Securities and Exchange Commission a
registration statement with respect to such Registrable Securities and use
commercially reasonable efforts to cause such registration statement to become
effective (provided that before filing a registration statement or prospectus or
any amendments or supplements thereto, the Company shall furnish to the counsel
selected by the Holders of a majority of the Registrable Securities covered by
such registration statement copies of all such documents proposed to be filed,
including each preliminary prospectus, which documents shall be subject to the
review and comment of such counsel);
(b) Prepare and file with the Commission such amendments and
supplements to such registration statement and the prospectus used in connection
therewith as may be necessary to keep such registration statement effective for
a period of not less than thirty (30) days and comply with the provisions of the
1933 Act with respect to the disposition of all securities covered by such
registration statement during such period in accordance with the intended
methods of disposition thereof by the Holders holding the securities covered by
the registration statement as set forth in such registration statement;
(c) Furnish to each Holder such number of copies of such registration
statement, each amendment and supplement thereto, the prospectus included in
such registration statement (including each preliminary prospectus) and such
other documents as such Holder may reasonably request in order to facilitate the
disposition of the Registrable Securities owned by such Holder;
(d) Use reasonable efforts to register or qualify the Registrable
Securities covered by the registration statement under such other securities or
blue sky laws of such United States jurisdictions as the Holder thereof may
reasonably request and do any and all other acts and things that may be
reasonable necessary or advisable to enable such Holder to consummate the
disposition in such jurisdictions of the Registrable Securities owned by such
Holder, provided that Company will not be required to (a) qualify generally to
do business in any jurisdiction where it would not otherwise be required to
qualify for this subparagraph, (b) subject itself to taxation in any such
jurisdiction or (c) consent to general service of process in any such
jurisdiction;
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(e) Notify each Holder, at any time when a registration statement
under the Act that registers any of such Holder's Registrable Securities is
effective, of the happening of any event as a result of which the prospectus
included in such registration statement contains an untrue statement of a
material fact or omits any fact necessary to make the statements therein not
misleading, and, at the request of such Holder, Company will prepare a
supplement or amendment to such prospectus so that, as thereafter delivered to
the purchasers of such Registrable Securities, such prospectus shall not contain
an untrue statement of a material fact or omit to state a fact necessary to make
the statements therein not misleading;
(f) Cause all such Registrable Securities to be listed on such
securities exchange or market on which the Company's Common Stock is then
listed; and
(g) Furnish, at a Holder's request, on the date that the Holder's
Registrable Securities are delivered to the underwriters for sale in connection
with a registration pursuant to this Agreement, if such securities are being
sold through underwriters, or, if such securities are not being sold through
underwriters, on the date that the registration statement with respect to such
securities becomes effective, (A) an opinion, dated such date, of the counsel
representing the Company for the purposes of such registration, in form and
substance as is customarily given to underwriters in an underwritten public
offering, addressed to the underwriters, if any, and to Holder, if Holder
requests registration and (B) a letter dated such date, from the independent
certified public accountants of the Company, in form and substance as is
customarily given by independent certified public accountants to underwriters in
an underwritten public offering, addressed to the underwriters, if any.
5. Requirement to Discontinue Disposition. Each Holder agrees that, upon
receipt of any notice from Company of the happening of any event of the kind
described in Section 4(e), such Holder will discontinue disposition of its
Registrable Securities pursuant to such registration statement until such
Holder's receipt of the copies of the supplemented or amended prospectus
contemplated by Section 4(e), or until such Holder is advised in writing by
Company that the use of the prospectus may be resumed, and has received copies
of any additional or supplemental filings that are incorporated by reference in
the prospectus, and, if so directed by Company, such Holder will deliver to
Company (at Company's expense) all copies, other than permanent file copies then
in such Holder's possession, of the prospectus covering such Registrable
Securities which are current at the time of the receipt of such notice.
6. Information from Holder. It shall be a condition precedent to the
obligations of the Company to take any action pursuant to Section 2 or Section 3
with respect to a Holder's Registrable Securities that such Holder furnish to
the Company such information regarding itself, the Registrable Securities held
by it, and the intended method of disposition of such securities as shall be
required to effect the registration of Holder's Registrable Securities.
7. Indemnification.
(a) Company agrees to indemnify and hold harmless, to the extent
permitted by law, each Holder, its directors and officers and each person who
controls Company (within the meaning of the Act) and any of such person's agents
or representatives, its legal counsel and accountants, any underwriter and any
controlling person of such underwriter, and its legal
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counsel against all losses, liabilities, claims, damages and expenses ("Losses")
caused by (A) any untrue or alleged untrue statement of material fact contained
in any registration statement in which such Holder is participating, prospectus
or preliminary prospectus or any amendment thereof or supplement thereto or any
omission or alleged omission of material fact required to be stated therein or
necessary to make the statements therein not misleading, except insofar as the
same are caused by or contained in any information furnished in writing to
Company or any underwriter by such Holder expressly for use therein or results
from such Holder's failure to deliver a copy of the registration statement or
prospectus or any amendments or supplements thereto after Company has furnished
such Holder with the number of copies of the same requested by such Holder or
(B) any violation or alleged violation by the Company of the Act, the Exchange
Act, any state securities laws or any rule or regulation promulgated under the
Act, the 1934 Act or any state securities laws in connection with the sale of
securities by such Holder pursuant to any registration statement in which such
Holder is participating, and the Company will reimburse each such Holder,
officer, director, controlling person or other aforementioned person for any
legal or other expenses reasonably incurred by them in connection with
investigating or defending any such losses, liabilities, claims, damages or
expenses or action as such expenses are incurred; provided however, that the
indemnity agreement contained in this Section 7 shall not apply to amounts paid
in settlement of any such Losses if such settlement is effected without the
consent of the Company (which consent shall not be unreasonably withheld).
(b) Each Holder, severally and not jointly, will indemnify Company,
its directors and officers and each person who controls Company (within the
meaning of the Act) and any of such person's agents or representatives, its
legal counsel and accountants, any underwriter and any controlling person of
such underwriter, against any Losses resulting from (A) any untrue or alleged
untrue statement of material fact contained in the registration statement,
prospectus or preliminary prospectus or any amendment thereof or supplement
thereto or any omission or alleged omission of a material fact required to be
stated therein or necessary to make the statements therein not misleading, but
only to the extent that such untrue statement or omission is contained in any
information or affidavit so furnished in writing by such Holder expressly for
use in such registration statement, or (B) such Holder's failure to deliver a
copy of the registration statement or prospectus or any amendments or
supplements thereto after Company has furnished such Holder with the number of
copies of the same requested by such Holder; and each such Holder will reimburse
any person intended to be indemnified pursuant to this Section 7(b) for any
legal or other expenses reasonably incurred by such person in connection with
investigating or defending any such losses, liabilities, claims, damages or
expenses or action as such expenses are incurred provided, however, that (i) the
indemnity agreement contained in this Section 7(b) shall not apply to amounts
paid in settlement of any Losses if such settlement is made without the consent
of the Holder, which consent shall not be unreasonably withheld, and (ii) the
obligations of such Holders hereunder shall be limited to an amount equal to the
net proceeds to each such Holder from the sale of Registrable Securities in the
transaction giving rise to the Losses.
(c) The indemnification provided for under this Agreement will remain
in full force and effect regardless of any investigation made by or on behalf of
the Indemnified Party (as defined herein) or any officer, director, or
controlling person of such Indemnified Party and will survive the transfer of
Registrable Securities. The Indemnifying Party also agrees to make such
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provisions, as are reasonably requested by an Indemnified Party, for
contributions (in such proportion as is appropriate to reflect the relative
fault of the Indemnifying Party on the one hand and of the Indemnified Party on
the other in connection with the actions that gave rise to any Losses) to such
party in the event such Indemnifying Party's indemnification is unavailable for
any reason; provided, however, that in no event shall any contribution by a
Holder under this Section 7(c) exceed the net proceeds to such Holder from the
sale of Registrable Securities in the transaction giving rise to the Losses.
(d) Each party entitled to indemnification under this Section 7 (the
"Indemnified Party") shall give notice to the party required to provide
indemnification (the "Indemnifying Party") promptly after such Indemnified Party
has actual knowledge of any claim as to which indemnity may be sought, and shall
permit the Indemnifying Party to assume the defense of any such claim or any
litigation resulting therefrom; provided that counsel for the Indemnifying
Party, who shall conduct the defense of such claim or any litigation resulting
therefrom, shall be approved by the Indemnified Party (whose approval shall not
unreasonably be withheld) and the Indemnified Party may participate in such
defense at the Indemnified Party's expense (unless the Indemnified Party shall
have reasonably concluded that there may be a conflict of interest between the
Indemnifying Party and the Indemnified Party in such action, in which case the
fees and expenses of counsel shall be at the expense of the Indemnifying Party),
and provided further that the failure of any Indemnified Party to give notice as
provided herein shall not relieve the Indemnifying Party of its obligations
under this Section 7 unless the Indemnifying Party is materially prejudiced
thereby. No Indemnifying Party, in the defense of any such claim or litigation,
shall, except with the consent of the Indemnified Party, consent to entry of any
judgment or enter into any settlement which does not include as an unconditional
term thereof the giving by the claimant or plaintiff to such Indemnified Party
of a release from all liability in respect to such claim or litigation. The
Indemnified Party shall furnish such information regarding itself or the claim
in question as an Indemnifying Party may reasonably request in writing and as
shall be reasonably required in connection with the defense of such claim and
litigation resulting therefrom.
(e) If the indemnification provided for in this Section 7 is held by a
court of competent jurisdiction to be unavailable to an Indemnified Party with
respect to any Losses, then the Indemnifying Party, in lieu of indemnifying such
Indemnified Party hereunder, shall contribute to the amount paid or payable by
such Indemnified Party as a result of such loss, liability, claim, damage or
expense, in such proportion as is appropriate to reflect the relative fault of
the Indemnifying Party on the one hand and of the Indemnified Party on the
other, in connection with the statements or omissions which resulted in Losses,
as well as any other relevant equitable considerations; provided, however, that
in no event shall any contribution by a Holder under this Section 7(e) exceed
the net proceeds to such Holder from the sale of Registrable Securities in the
transaction giving rise to the Losses. The relative fault of the Indemnifying
Party and of the Indemnified Party shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a material fact
or the omission to state a material fact relates to information supplied by the
Indemnifying Party or by the Indemnified Party and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission.
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(f) Notwithstanding the foregoing, to the extent that the provisions
on indemnification and contribution contained in the underwriting agreement
entered into in connection with any underwritten public offering contemplated by
this Agreement are in conflict with the foregoing provisions, the provisions in
such underwriting agreement shall be controlling.
(g) The obligations of the Company and Holders under this Section 7
shall survive the completion of any offering of Registrable Securities in a
registration statement under Section 2 or 3 and otherwise.
8. Rule 144 Reporting. With a view to making available the benefits of
certain rules and regulations of the Commission which may permit the sale of
restricted securities to the public without registration the Company agrees to:
(a) keep public information available as those terms are understood
and defined in Rule 144, at all times from and after ninety (90) days following
the effective date of the first registration under the Act filed by the Company
for an offering of its Common Stock to the general public;
(b) file with the Commission all reports and other documents required
of the Company under the Act and the Exchange Act at any time after it has
become subject to such reporting requirements; and
(c) so long as any Holder owns any Registrable Securities, furnish to
such Holder upon request, a written statement by the Company as to its
compliance with the reporting requirements of Rule 144 (at any time from and
after ninety (90) days following the effective date of the first registration
statement filed by the Company for an offering of its securities to the general
public), and of the Act and the Exchange Act (at any time after it has become
subject to such reporting requirements), a copy of the most recent annual or
quarterly report of the Company, and such other reports and documents so filed
as such Holder may reasonably request in availing itself of any rule or
regulation of the Commission allowing such Holder to sell any such securities
without registration.
9. "Market Stand-off" Agreement. If requested by the Company or an
underwriter of capital stock or other securities of the Company in connection
with the Company's initial public offering, each Holder agrees not to sell or
otherwise transfer or dispose of any capital stock or other securities of the
Company held by such Holder during the 180 day period following such initial
public offering. If requested by a managing underwriter in connection with the
Company's initial public offering, such Holder shall execute a separate
agreement to the foregoing effect. The Company may impose stop-transfer
instructions with respect to the shares (or securities) subject to the foregoing
restriction until the end of such period.
10. Termination. The registration rights set forth in this Agreement shall
terminate and not be available to each Holder on the earlier of (i) the date
that the Registrable Securities then owned by such Holder can be sold in any
90-day period pursuant to Rule 144 under the Act and (ii) the date that is three
years following the consummation of the Company's initial public offering of its
Common Stock. In addition, the registration rights set forth in this Agreement
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shall terminate upon the transfer or assignment of the Registrable Securities to
any party that is not an Affiliate of Investor. Upon termination pursuant to
this Section 5, the Company shall no longer be obligated to provide notice of a
proposed registration to such Holder.
11. Notices. All communications provided for hereunder shall be sent by
first-class mail or facsimile and (a) if addressed to a Holder, addressed to the
Holder at the address or fax number set forth below such Holder's signature, or
at such other address or fax number as such Holder shall have furnished to the
Company in writing or (b) if addressed to the Company, to the address or fax
number set forth below the Company's signature or at such other address or fax
number, or to the attention of such other officer, as the Company shall have
furnished to Holder in writing. Notices sent by first-class mail shall be deemed
received three days after the date of deposit of such notice in the United
States mail. Notices sent by facsimile shall be deemed received upon receipt by
the notified party's facsimile machine.
12. No Assignment. This Agreement is personal to Investor and shall not be
assignable, by operation of law or otherwise to any third party. Notwithstanding
the foregoing, Investor may transfer or assign the registration rights granted
hereunder to a Permitted Transferee, and provided that the Company is given
written notice at the time of said transfer or assignment identifying the name
and address of the transferee and that the transferee or assignee of such rights
assumes in writing the obligations of Investor under this Agreement.
13. Descriptive Headings. The descriptive headings of the several sections
and paragraphs of this Agreement are inserted for reference only and shall not
limit or otherwise affect the meaning hereof.
14. Governing Law. This Agreement shall be construed and enforced in
accordance with, and the rights of the parties shall be governed by, the laws of
the State of Delaware.
15. No Inconsistent Agreements. The Company will not on or after the date
of this Agreement enter into any agreement with respect to its securities that
conflicts with or would limit the rights granted to the Holders in this
Agreement or otherwise conflicts with the provisions hereof.
16. Amendments and Waivers. Any term of this Agreement may be amended and
the observance of any term may be waived (either generally or in a particular
instance and either retroactively or prospectively) only upon the written
consent of the Company and the Investors holding 50% of the securities held by
all of the Investors party to the Agreement, provided that no Investor shall be
subject to additional obligations or diminished rights that adversely affect
such Investor or be treated in a manner different that other Investors unless
such Investor approved the amendment or waiver. Notwithstanding the foregoing,
Exhibit A to this Agreement may be amended from time to time by the Company to
add new investors without formally amending this Agreement provided that such
new investor executes and delivers to the Company a Joinder in the form of
Exhibit B attached hereto. Each Investor agrees to execute any amendment or
waiver effected in accordance with this Section. Any amendment or waiver
effected in accordance with this Section shall be binding on each Investor then
a party to this Agreement, each future Investor and the Company. The failure of
any party to insist on or to enforce strict performance by the other parties of
any of the provisions of this Agreement or to
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exercise any right or remedy under this Agreement shall not be construed as a
waiver or relinquishment to any extent of that party's right to assert or rely
on any provisions, rights or remedies in that or any other instance; rather, the
provisions, rights and remedies shall remain in full force and effect.
17. Counterparts. This Agreement may be executed simultaneously in any
number of counterparts, each of which shall be deemed an original, but all such
counterparts shall together constitute one and the same instrument.
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IN WITNESS WHEREOF, the parties have caused this agreement to be executed
and delivered as of the date first above written.
COMPANY:
CLEARWIRE CORPORATION:
By: /s/ R. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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R. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, its President
Address:
Clearwire Corporation
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention:
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Fax No.:
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INVESTORS:
DOLL TECHNOLOGY INVESTMENT FUND,
a California Limited Partnership
DOLL TECHNOLOGY AFFILIATES FUND, L.P.
DOLL TECHNOLOGY SIDE FUND, L.P.
By: Doll Technology Investment
Management, LLC, its General Partner
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
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▇▇▇▇▇ R. Doll, its Managing Member
Address:
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Attention:
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Fax No.:
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[Signature Page to Registration Rights Agreement]
BIRCHWOOD PARTNERS
By: /s/ D R Doll
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, its G P
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Address:
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Attention:
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Fax No.:
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JAFCO AMERICA TECHNOLOGY FUND III, LP
JAFCO AMERICA TECHNOLOGY CAYMAN FUND
III, LP
JAFCO USIT FUND III, LP
JAFCO AMERICA TECHNOLOGY AFFILIATES FUND
III, LP
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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Managing Member, JAV Management
Associates III, L.L.C.
Its General Partner
Address:
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Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
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[Signature Page to Registration Rights Agreement]
GREEN VENTURE CAPITAL II, L.P., A
CALIFORNIA LIMITED PARTNERSHIP
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
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▇▇▇▇▇▇ ▇▇▇▇▇, Trustee of the Green
Living Trust, General Partner Green
Venture Capital II, L.P.
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇▇▇▇▇, Trustee of the Green
Living Trust, General Partner Green
Venture Capital II, L.P.
Address:
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Attention:
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Fax No.:
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▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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Address:
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Attention:
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Fax No.:
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[Signature Page to Registration Rights Agreement]
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ TRADING PARTNERS, L.P.
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
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, its Partner
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Address:
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Attention:
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Fax No.: ▇▇▇-▇▇▇-▇▇▇▇
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COM HOLDINGS, LLC
BY EAGLE RIVER, INC., ITS MANAGER
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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▇▇▇▇▇ ▇▇▇▇▇▇▇▇ , its VICE PRESIDENT
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Address:
2300 Carrillon Pt.
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Attention:
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Fax No.: ▇▇▇-▇▇▇-▇▇▇▇
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ TRUST
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ , its Trustee
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Address:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇. ▇▇▇
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▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇-▇▇▇▇
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Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Fax No.: ▇▇▇-▇▇▇-▇▇▇▇
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[Signature Page to Registration Rights Agreement]
ENTERASYS NETWORKS, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇, its CFO
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Address:
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▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
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Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇, ▇▇.
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Fax No.:
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IMAGINE CAPITAL PARTNERS, L.P. XXVI
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇
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▇▇▇▇ ▇. ▇▇▇▇, its Administrative
Partner
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/s/ ▇▇▇▇▇▇ ▇▇▇▇▇
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▇▇▇▇▇▇ ▇▇▇▇▇
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇
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/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Address:
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Attention:
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Fax No.:
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[Signature Page to Registration Rights Agreement]
▇▇▇▇▇▇ STREET PARTNERS, LLC
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇
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, its President
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Address:
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Attention:
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Fax No.:
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THE ▇▇▇▇ GROUP, LLC
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇
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, its Partner in Charge
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Address:
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The ▇▇▇▇ Group
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▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇.
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▇▇▇▇▇ #▇▇▇▇
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▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
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Attention: ▇▇▇▇ ▇. ▇▇▇▇
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Fax No.: ▇▇▇-▇▇▇-▇▇▇▇
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WESTLAKE DEVELOPMENT COMPANY, INC.
By: /s/ M. ▇▇▇▇ ▇▇▇▇
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M. ▇▇▇▇ ▇▇▇▇, its Chief Operating
Officer
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Address:
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Attention:
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Fax No.:
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[Signature Page to Registration Rights Agreement]
ALMARC TRADING LLC
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
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, its Manager
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Address: Alamanc Trading L.P.
▇▇▇▇-▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇. ▇▇▇▇▇ ▇▇
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▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
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Attention:
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Fax No.: ▇▇▇-▇▇▇-▇▇▇▇
ALT ▇▇▇-▇▇▇-▇▇▇▇
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/s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Address:
▇▇▇▇ ▇. ▇▇▇▇▇ ▇▇ ▇▇▇▇▇
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▇▇▇▇▇▇▇▇▇▇ ▇▇
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85255
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Attention:
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Fax No.:
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▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
/s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
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▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Address:
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Attention:
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Fax No.:
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[Signature Page to Registration Rights Agreement]
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
/s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
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▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Address:
▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇.
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▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
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Attention: ▇▇▇▇
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Fax No.: ▇▇▇-▇▇▇-▇▇▇▇
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[Signature Page to Registration Rights Agreement]
EXHIBIT A
INVESTORS
1. Doll Technology Investment Fund, a California Limited Partnership
2. Doll Technology Affiliates Fund, L.P.
3. Doll Technology Side Fund, L.P.
4. Birchwood Partners
5. JAFCO America Technology Fund III, LP
6. JAFCO America Technology Cayman Fund III, LP
7. JAFCO USIT Fund III, LP
8. JAFCO America Technology Affiliates Fund III, LP
9. Green Venture Capital II, L.P., a California Limited Partnership.
10. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
11. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Trading Partners, L.P.
12. COM Holdings, LLC
13. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Trust
14. Enterasys Networks, Inc.
15. Imagine Capital Partners, L.P. XXVI
16. ▇▇▇▇▇▇ Street Partners, LLC
17. The ▇▇▇▇ Group, LLC
18. Westlake Development Company, Inc.
19. Almarc Trading LLC
20. ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
21. ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
22. ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
23. ▇▇▇▇▇▇ ▇▇▇▇▇
24. ▇▇▇▇▇ ▇▇▇▇▇▇▇
25. ▇▇▇▇▇▇ ▇▇▇▇▇
EXHIBIT B
JOINDER
In consideration of the permitted issuance, sale, pledge, or other transfer
to the undersigned of Registrable Securities in the Company, the undersigned
hereby consents and agrees to become a party to and be bound by the Registration
Rights Agreement dated as of the _____ day of March, 2004, as amended, receipt
of a copy of which is hereby acknowledged, as fully as if the undersigned were
one of its original parties, and all of the Registrable Securities owned by the
undersigned will be held in accordance with and restricted by the terms of such
Registration Rights Agreement.
Dated:
---------------------------------
Name of Stockholder:
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Sign Name:
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Print Name:
----------------------------
Address:
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SSN/EIN:
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Approved by the Company:
COMPANY: CLEARWIRE CORPORATION
By:
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Name:
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Title:
---------------------------------
Dated:
---------------------------------