Exhibit 10.37
EXECUTION COPY
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PURCHASE AGREEMENT
between
BAYPOINT ST. LOUIS, LLC
and
CLEARWIRE CORPORATION
and
CLEARWIRE SPECTRUM HOLDINGS LLC
Dated as of September 9, 2005
[*** Confidential Treatment Requested]
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TABLE OF CONTENTS
Page
ARTICLE 1 DEFINITIONS......................................................1
ARTICLE 2 PURCHASE AND SALE OF ASSETS......................................4
ARTICLE 3 REPRESENTATIONS AND WARRANTIES OF SELLER.........................5
ARTICLE 4 REPRESENTATIONS AND WARRANTIES OF PURCHASER......................9
ARTICLE 5 COVENANTS AND OTHER AGREEMENTS..................................10
ARTICLE 6 CONDITIONS TO CLOSING...........................................13
ARTICLE 7 TERMINATION.....................................................15
ARTICLE 8 SURVIVAL AND REMEDIES...........................................16
ARTICLE 9 MISCELLANEOUS...................................................18
SCHEDULES AND EXHIBITS
Exhibit A License
Exhibit B Form of Instrument of Assignment for License
Exhibit C Form of Joinder to Amended and Restated Stockholders Agreement
Exhibit D Form of Stockholder Questionnaire
Exhibit E Interference Agreements
Exhibit F Form of Joinder to Registration Rights Agreement
Exhibit G Form of Side Letter Regarding Registration Rights
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PURCHASE AGREEMENT
This PURCHASE AGREEMENT, dated as of September 9, 2005 (the "Effective
Date"), is among Baypoint St. Louis, LLC, a Virginia limited liability company
("Seller"), Clearwire Spectrum Holdings LLC, a Nevada limited liability company
("Purchaser"), and Clearwire Corporation, a Delaware corporation ("Clearwire"),
the parent corporation of Purchaser (for the limited purpose of issuing stock
pursuant to Section 2.3 and for the limited purpose of making the
representations in Article 4 and the applicable covenants in Article 5). Seller,
Clearwire and Purchaser may be referred to herein as "Parties" or each as a
"Party."
A. Seller holds a license ("License") granted by the FCC authorizing
Seller to construct and operate a Broadband Radio Service ("BRS"), formerly
known as Multipoint Distribution Service, using call sign *** on channels ***
(the "Seller Channels") in the *** market, a copy of which is attached as
Exhibit A.
B. Seller desires to assign the License to Purchaser, and Purchaser
desires to acquire the License on the terms and subject to the conditions set
forth in this Agreement.
NOW, THEREFORE, in consideration of the premises and the mutual
representations, warranties, covenants, conditions and agreements hereinafter
set forth, the Parties agree as follows:
ARTICLE 1 DEFINITIONS
As used in this Agreement, the following terms shall have the meanings set
forth or referenced below:
"Accredited Investor" means as this term is defined in Rule 501(a) of
Regulation D as promulgated by the U.S. Securities and Exchange Commission under
the Securities Act.
"Affiliate" means, with respect to any Person, any other Person that,
directly or indirectly, alone or through one or more intermediaries, controls,
is controlled by or is under common control with that Person. For purposes of
this definition, "control" (including the terms "controlling" and "controlled")
means the power to direct or cause the direction of the management and policies
of a Person, directly or indirectly, whether through the ownership of securities
or partnership or other ownership interests, by contract or otherwise.
"Agreement" means this Purchase Agreement and all Exhibits and Schedules
hereto, as amended, supplemented or otherwise modified from time to time in
accordance with the terms hereof.
"BRS" is defined in Recital A.
"Business Day" means any day, other than a Saturday or Sunday, on which
commercial banks are open for business in Seattle, Washington.
"Claim" is defined in 0Section 8.3(d).
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"Clearwire" is defined in the preamble.
"Clearwire Stock" is defined in 0Section 2.3.
"Close" means the process and result of Closing.
"Closing" is defined in 0Section 2.4.
"Closing Date" is defined in 0Section 2.4.
"Confidential Information" means any and all information regarding the
business, finances, operations, products, services and customers of the
Purchaser or Seller and their respective Affiliates, in written or oral form or
in any other medium.
"Consent" means any consent or approval of Governmental Authorities or
other third parties necessary to authorize, approve or permit the Parties hereto
to consummate the Transactions.
"Damages" means any and all losses, claims, demands, liabilities,
obligations, actions, suits, orders, statutory or regulatory compliance
requirements, or proceedings asserted by any Person, and all damages, costs,
expenses, assessments, judgments, recoveries and deficiencies, including
interest, penalties, investigatory expenses, consultants' fees, and reasonable
attorneys' fees and costs, of every kind and description.
"Deposit" is defined in 0Section 2.2.
"Disclosure Memorandum" means that certain draft Disclosure Memorandum of
Clearwire dated March 14, 2005, a copy of which has been provided to Seller.
"Effective Date" is defined in the preamble.
"FCC" means the Federal Communications Commission or any successor agency
thereof.
"FCC Application" is defined in 0Section 5.5.
"Final Order" means an action or decision of the FCC as to which (i) no
request for a stay or similar request is pending, no stay is in effect, the
action or decision has not been vacated, reversed, set aside, annulled or
suspended and any deadline for filing such request that may be designated by
statute or regulation has passed, (ii) no petition for rehearing or
reconsideration or application for review is pending and the time for the filing
of any such petition or application has passed, (iii) the FCC does not have the
action or decision under reconsideration on its own motion and the time within
which it may effect such reconsideration that may be designated by statute or
rule has passed, and (iv) no appeal is pending including other administrative or
judicial review, or in effect and any deadline for filing any such appeal that
may be designated by statute or rule has passed.
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"Governmental Authority" means a Federal, state or local court,
legislature, governmental agency (including the United States Department of
Justice), commission or regulatory or administrative authority or
instrumentality.
"Interference Agreements" means the agreements listed in Exhibit E hereto
and further described in Section 3.4(e) below.
"Law" means applicable common law and any statute, ordinance, code or
other law, rule, permit, permit condition, regulation, order, decree, technical
or other standard, requirement or procedure enacted, adopted, promulgated,
applied or followed by any Governmental Authority.
"Lease/Option Agreement" means that certain Tower Site Lease Option, dated
August 2, 2002, by and among ***.
"License" is defined in Recital A.
"Lien" means, with respect to any asset, any mortgage, lien, pledge,
charge, security interest, right of first refusal or right of others therein, or
encumbrance of any nature whatsoever in respect of such asset, other than: (1)
for liens for taxes not yet due and payable, and (2) rights and restrictions
imposed by FCC rules or policies, or the Communications Act of 1934, as amended,
and (3) the Interference Agreements listed in Exhibit E hereto.
"Party" or "Parties" is defined in the preamble.
"Person" means any general partnership, limited partnership, limited
liability company, corporation, joint venture, trust, business trust,
Governmental Authority, cooperative, association, other entity, or individual,
and the heirs, executors, administrators, legal representatives, successors, and
assigns of such person as the context may require.
"Purchase Price" is defined in Section 2.3.
"Purchaser" is defined in the preamble.
"Purchaser Indemnified Parties" is defined in 0Section 8.2.
"Reasonable Efforts" means the efforts that a reasonably prudent person or
entity desirous of achieving a result would use in similar circumstances to
ensure that such result is achieved; provided, however, that an obligation to
use Reasonable Efforts under this Agreement does not require the Party subject
to that obligation to take actions or incur costs that would result in a
materially adverse change in the benefits such Party expects to realize from
this Agreement.
"Securities Act" means the Securities Act of 1933, as amended.
"Seller" is defined in the preamble.
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"Seller Channels" is defined in Recital A.
"Seller Indemnified Parties" is defined in 0Section 8.3.
"Tax" or "Taxes" means any taxes, assessment, duties, fees, levies,
imposts, deductions, or withholdings, including income, gross receipts, ad
valorem, value added, excise, real or personal property, asset, sales, use,
license, payroll, transaction, capital, net worth and franchise taxes, estimated
taxes, withholding, employment, social security, workers compensation, utility,
severance, production, unemployment compensation, occupation, premium, windfall
profits, transfer and gains taxes, or other governmental charges of any nature
whatsoever, imposed by any Taxing Authority of any government or country or
political subdivision of any country, and any liabilities with respect thereto,
including any penalties, additions to tax, fines or interest thereon and
includes any liability for Taxes of another person by contract or as a
transferee or successor.
"Tax Return" means any report, return, statement, estimate, declaration,
notice, form or other information required to be supplied to a Taxing Authority
in connection with Taxes.
"Taxing Authority" shall mean the Internal Revenue Service and any other
Governmental Authority responsible for the administration of any Tax.
"Transactions" means the transactions contemplated by this Agreement.
ARTICLE 2 PURCHASE AND SALE OF ASSETS
Section 2.1 Purchase and Sale. On the terms and subject to the conditions
of this Agreement, at the Closing, Seller shall sell, assign, transfer, convey
and deliver to Purchaser or another wholly-owned subsidiary of Clearwire,
designated by Clearwire as provided in Section 5.7 hereafter, and Purchaser
shall purchase and assume from Seller all of Seller's right, title and interest
as of the Closing Date in and to: (i) the License, free and clear of all Liens;
and (ii) the Interference Agreements. The Lease/Option Agreement is specifically
excluded from Seller's sale, assignment, transfer, conveyance and delivery
herein to Purchaser or any other wholly-owned subsidiary of Clearwire, and
Purchaser shall not hereby purchase or assume from Seller any of Seller's right,
title and interest under the Lease/Option Agreement.
Section 2.2 Deposit. Within five (5) Business Days of the date of this
Agreement, Purchaser shall pay Seller *** as a deposit (the "Deposit"). The
Deposit shall be applied against the Purchase Price (as defined below)
dollar-for-dollar in the event that the Transactions described by this Agreement
close. Seller shall return the Deposit to Purchaser, within five (5) Business
Days of such termination, in the event that this Agreement is terminated by
Seller pursuant to Section 7.1(b) or 7.1(d) before the Transactions Close. The
Deposit shall be retained by Seller, at its election, as liquidated damages in
the event that this Agreement is terminated by Seller before the Transactions
Close pursuant to Section 7.1(c).
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Section 2.3 Payment of Purchase Price. As consideration for sale and
assignment of the License and the Interference Agreements to Purchaser,
Purchaser shall deliver or cause to be delivered to Seller the monetary funds
and stock (the "Purchase Price") in the amounts and quantities, and at the times
specified below:
(a) At the Closing, the Deposit shall be first applied against the
Purchase Price as described above;
(b) [***] shall be payable at the Closing in immediately
available funds via wire transfer to an account designated by Seller;
(c) With respect to the balance of the Purchase Price after
application of the Deposit and the wire transfer of funds, Clearwire shall
issue to Seller an aggregate total of *** Shares of Clearwire's Class A
common stock ("Clearwire Stock"); provided, however, if at the time of
Closing, Seller is not an Accredited Investor, then the portion of the
Purchase Price otherwise payable to Seller in Clearwire Stock, shall be
payable to Seller at the Closing, in immediately available funds via wire
transfer to an account designated by Seller, in substitution for delivery
of the Clearwire Stock to Seller, at the value of the Clearwire Stock as
of the date of this Agreement. The number of shares of the Clearwire Stock
shall be adjusted, if necessary to account for any stock split, cash
dividend, stock dividend, or other distribution or recapitalization in
respect of Clearwire's issued and outstanding stock between now and the
Closing.
Section 2.4 Closing. Upon the terms and subject to the conditions hereof,
the closing of the sale of the License (the "Closing") shall take place at the
offices of ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, LLP, ▇▇▇▇ ▇ ▇▇▇▇▇▇, ▇.▇., ▇▇▇▇▇▇▇▇▇▇, ▇▇
▇▇▇▇▇, within five (5) Business Days following the date on which the last
condition under Article 6 has been satisfied or waived, or at such other time
and place as the Parties may mutually agree. The date on which Closing occurs is
called the "Closing Date."
ARTICLE 3 REPRESENTATIONS AND WARRANTIES OF SELLER
Seller represents and warrants to Purchaser as follows:
Section 3.1 Authorization. Seller is lawfully existing and in good
standing under the laws of the Commonwealth of Virginia, and has all requisite
power and authority to enter into this Agreement and to perform the obligations
to be performed by it under this Agreement. The execution and delivery of this
Agreement, and the performance by Seller of its obligations hereunder, have been
duly authorized by all necessary action on the part of Seller.
Section 3.2 Enforceability. This Agreement has been duly executed and
delivered by Seller and is a legal, valid and binding obligation of Seller,
enforceable against Seller in accordance with its terms, subject to bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and similar laws of
general applicability relating to or affecting
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creditors' rights, and to general equity principles and FCC Consent. Each other
agreement, document, instrument or certificate contemplated by this Agreement to
be delivered by Seller to Purchaser, if and when so delivered, will be duly
executed and delivered by Seller and a legal, valid and binding obligation of
Seller, enforceable against Seller in accordance with its terms, subject to
bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and
similar laws of general applicability relating to or affecting creditors'
rights, and to general equity principles and FCC Consent.
Section 3.3 No Conflicts or Consents. Neither the execution, delivery and
performance by Seller of this Agreement, nor the consummation of the
Transactions by Seller, will: (i) constitute, with or without the giving of
notice or passage of time or both, a breach, violation or default by Seller or
any of its Affiliates, create a Lien, or give rise to any right of termination,
modification, cancellation, prepayment or acceleration, under (x) any Law or
license (subject to receipt of Consent of the FCC), or (y) any note, bond,
mortgage, indenture, lease, agreement or other instrument, in each case which is
applicable to or binding upon Seller or the License; (ii) require any Consent,
other than the Consent of the FCC; or (iii) violate any Law by which Seller is
bound.
Section 3.4 FCC Matters.
(a) The license attached hereto as Exhibit A is a true and correct
copy of the License. There is no other condition, to the knowledge of
Seller, imposed by the FCC as part of the License that is neither set
forth on the face of the License as issued by the FCC, or contained in the
FCC rules applicable generally to the licenses of the type, nature and
class or location of the License. No other licenses or authorizations are
required from the FCC for the operations of facilities in compliance with
the License on the Seller Channels in the market area as of the Effective
Date. Except as set forth in Section 3.5 below, no Person other than
Seller has any right, title, interest or claim in or to the License. The
License has been granted to Seller by Final Order and is in full force and
effect.
(b) Excluding the proceedings in WT Docket No. 03-66, there is not
pending or, to the knowledge of Seller, threatened against Seller or the
License before the FCC or any other Governmental Authority any
application, action, petition, objection or other pleading, or any
proceeding with the FCC or any other Governmental Authority, which (i)
questions or contests the validity of, or seeks the revocation,
forfeiture, non-renewal or suspension of, the License, (ii) seeks the
imposition of any modification or amendment with respect thereof, (iii)
which would adversely affect the ability of Seller to consummate the
Transactions, or (iv) seeks the payment of a fine, sanction, penalty,
damages or contribution in connection with the use of the License. To
Seller's knowledge there are no facts or circumstances existing that would
give rise to any such application, action, petition, objection or other
pleading, or proceeding with the FCC or any other Governmental Authority.
(c) Other than under the Interference Agreements listed in Exhibit E
hereto, Seller has not located, in a search of its readily available
records as of the Effective Date, any other written agreements to accept
or allow any electromagnetic
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interference from any other FCC licensees, permittees or applicants with
respect to the License and/or Seller Channels, and, to Seller's knowledge,
no other such licensees, permittees or applicants have agreed to accept
electromagnetic interference from Seller with respect to their respective
facilities.
(d) To Seller's knowledge, Seller is in compliance with all
applicable Laws except for any non-compliance that, individually or in the
aggregate, will not have a material adverse effect on the License or on
Seller's ability to consummate the Transactions. To Seller's knowledge,
since the grant of the Seller's most recent renewal application for the
License, Seller has complied in all material respects with FCC Laws
applicable to the License, including without limitation the Communication
Act of 1934, as amended. Since the issuance of the License, Seller has not
received a notice of non-compliance from the FCC. To Seller's knowledge
all material documents required to be filed at any time by Seller with the
FCC with respect to the License have been timely filed or the time period
for such filing has not lapsed. To Seller's knowledge, all such documents
filed since the date that the License was issued to Seller are correct in
all material respects. All amounts owed to the FCC in connection with the
License have been timely paid.
(e) As of the Effective Date, the facilities subject to the License
for which certification or notification of completion of construction has
been filed with the FCC are not operating.
Section 3.5 Title to License/Lease. Except as recited in this Section,
Seller holds the License free and clear of any Liens.
Section 3.6 Taxes. All Tax Returns required to be filed by Seller have
been timely filed, and Seller is not the beneficiary of any extension of time
within which to file any Tax Return. All such Tax Returns are true, complete and
correct in all material respects. To Seller's knowledge all Taxes owed by Seller
(whether or not shown on any Tax Return) have been paid, including, without
limitation with respect to any BRS transmission facilities. Seller has withheld
and paid to the appropriate Taxing Authority all Taxes required to have been
withheld and paid in connection with amounts paid or owing to any employee,
independent contractor, creditor, member or other third party. Seller has not
waived any statute of limitations in respect to Taxes or agreed to any extension
of time with respect to an assessment or deficiency of Taxes. No adjustment
relating to any Tax Returns filed by Seller has been proposed by any Taxing
Authority and remains unresolved. There are no Tax Liens on the License, other
than Liens for Taxes that are not yet due and payable. Seller is not a "foreign
person" within the meaning of Section 1445 of the Code. The License does not
secure any indebtedness, the interest on which is tax-exempt under Section
103(a) of the Code. The License is not "tax-exempt use property" within the
meaning of Section 168(h) of the Code.
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Section 3.7 Litigation. Other than proceedings of general applicability
(such as WT Docket No. 03-66), there is no legal proceeding now in progress or
pending or, to the knowledge of the Seller, threatened against Seller or the
License or the business of Seller, nor to the knowledge of Seller does there
exist any basis therefor. Seller is not subject to any order, writ, injunction
or decree of any court or any federal, state, municipal or other domestic or
foreign Governmental Authority.
Section 3.8 Brokers. Seller has engaged ▇▇▇▇ ▇▇▇▇▇ ("▇▇. ▇▇▇▇▇") and
Cheval Capital, Inc. ("Cheval") as brokers regarding the Transactions, and
Seller shall be solely responsible for payment of any brokerage commissions to
▇▇. ▇▇▇▇▇ and Cheval. Other than ▇▇. ▇▇▇▇▇ and Cheval, neither Seller nor any of
its Affiliates has employed any other broker or finder or incurred any liability
for any other brokerage or finding fees or commissions in connection with the
Transactions.
Section 3.9 Securities Representations.
(a) Seller is an Accredited Investor. Seller is acquiring the
Clearwire Stock for its own account, for investment purposes only and not
with a view to the distribution (as such term is used in Section 2(11) of
the Securities Act) thereof. Seller understands that the Clearwire Stock
has not been registered under the Securities Act and cannot be sold or
otherwise transferred unless subsequently registered under the Securities
Act or an exemption from such registration is available.
(b) Seller is knowledgeable and experienced in the
telecommunications industry and is capable of evaluating the risks and
merits of the transactions contemplated by this Agreement, including the
acquisition of shares of Clearwire Stock, and making an informed decision
with respect thereto. Seller has received the Disclosure Memorandum from
Purchaser in sufficient time to review and analyze its contents prior to
the execution of this Agreement. Seller and its representatives have had
sufficient opportunity to ask questions of and receive answers from
Purchaser and Clearwire concerning the business of Clearwire, its
operations, assets and liabilities. Seller and its representatives have
had an opportunity to review all documents and records concerning
Clearwire and its business that Seller has requested. Seller has conducted
its own independent assessment, analysis and investigation with respect to
Clearwire and its business at the time of entering into this Agreement and
has agreed to enter into this Agreement and accept Clearwire Stock as
partial payment of the Purchase Price based solely on this assessment,
analysis and investigation, and the representations and warranties of
Purchaser and Clearwire set forth in this Agreement and the information
contained in the Disclosure Memorandum.
(c) Seller is aware that Clearwire is a speculative enterprise, that
certain of the information disclosed to it contain forward looking
statements which involve risks and uncertainties, and that Clearwire's
actual results may differ significantly from the results discussed in
these forward looking statements. Seller further acknowledges that the
value of Clearwire's respective assets is inherently uncertain and is
dependent upon market, technological, and regulatory developments
concerning feasible and
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allowable uses. Seller represents and warrants to Purchaser and Clearwire
that it has assessed these factors independently and has agreed to enter
into this Agreement without reliance upon or expectation of any
disclosures of any kind from Purchaser or Clearwire, except as set forth
in this Agreement and the Disclosure Memorandum.
(d) For purposes of application of state securities law, Seller is a
resident of the jurisdiction of the District of Columbia.
ARTICLE 4 REPRESENTATIONS AND WARRANTIES OF PURCHASER
Each of Clearwire and Purchaser hereby represents and warrants to Seller
as follows:
Section 4.1 Existence; Authorization. Each of Clearwire and Purchaser is
lawfully existing and in good standing under the laws of the State of Delaware,
has all requisite power and authority to enter into this Agreement and to
perform the obligations to be performed by it under this Agreement. Except for
obtaining board approval from Clearwire, the execution and delivery of this
Agreement, and the performance by Purchaser and Clearwire of its respective
obligations hereunder, have been duly authorized by all necessary action on the
part of Purchaser and Clearwire, respectively.
Section 4.2 Enforceability. This Agreement has been duly executed and
delivered by each of Clearwire and Purchaser and is a legal, valid and binding
obligation of each of Clearwire and Purchaser, enforceable against Clearwire and
Purchaser in accordance with its terms, subject to bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors' rights and to general equity
principles, and FCC Consent. Each other agreement, document, instrument or
certificate contemplated by this Agreement to be delivered by Purchaser or
Clearwire to Seller, if and when so delivered, will be duly executed and
delivered by each of Clearwire and Purchaser and a legal, valid and binding
obligation of each of Clearwire and Purchaser, enforceable against Clearwire and
Purchaser in accordance with its terms, subject to bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors' rights and to general equity
principles, and FCC Consent.
Section 4.3 No Conflicts or Consents. Neither the execution, delivery and
performance by Clearwire or Purchaser of this Agreement, nor the consummation of
the Transactions by Clearwire or Purchaser, will (i) constitute, with or without
the giving of notice or passage of time or both, a breach, violation or default
by Clearwire or Purchaser or any of their Affiliates, or give rise to any right
of termination, modification, cancellation, prepayment or acceleration, under
(x) any Law or license (subject to receipt of Consent of the FCC), or (y) any
note, bond, mortgage, indenture, lease, agreement or other instrument, in each
case which is applicable to or binding upon Clearwire or Purchaser; (ii) require
any Consent, other than the Consent of the FCC and board approval from
Clearwire; or (iii) violate any Law by which Clearwire or Purchaser is bound.
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Section 4.4 Brokers. Neither Clearwire, Purchaser, nor any affiliate of
either has employed any broker or finder or incurred any liability for any
brokerage or finder's fees or commissions in connection with the Transactions.
Section 4.5 Securities to be Issued to Seller. Purchaser and Clearwire
hereby jointly and severally represent and warrant to Seller that upon the
issuance and delivery by Clearwire to Seller pursuant to this Agreement, the
Clearwire Stock will be duly issued, fully paid and non-assessable, and will be
free of restrictions on transfer other than restrictions on transfer under this
Agreement and the Amended and Restated Stockholders Agreement dated March 16,
2004, by and among Clearwire and Clearwire's stockholders to which Seller will
be a party to by joinder, the Registration Rights Agreement dated March 16, 2004
to which Seller will be a party to by joinder and applicable securities laws.
Prior to the Closing, Clearwire shall deliver to Seller any updates to the
Disclosure Memorandum or other updated disclosures it has delivered to third
party investors prior to the Effective Date. Each of Purchaser and Clearwire
represents and warrants that Clearwire's Board of Directors has approved the
issuance of the Clearwire Stock pursuant to this Agreement and Clearwire's
execution, delivery and performance of this Agreement. Subject in part to the
truth and accuracy of the Seller's representations in Section 3.9, the offer,
sale and issuance of the Clearwire Stock as contemplated by this Agreement are
exempt from the registration requirements of the Securities Act and applicable
state securities laws, and Clearwire will take no action hereafter that would
cause the loss of such exemptions.
Section 4.6 FCC Qualification. Purchaser is legally, technically,
financially, and otherwise qualified to acquire and hold the License from Seller
under the rules and policies of the FCC and the Communications Act of 1934, as
amended.
Section 4.7 Proceedings. There is no action, proceeding or investigation
pending or, to the knowledge of Purchaser, threatened against Purchaser, or
Purchaser's property or assets, that would be reasonably expected to have an
adverse effect on Purchaser's ability to consummate the Transactions, or which
seeks to prevent or challenge the Transactions.
ARTICLE 5 COVENANTS AND OTHER AGREEMENTS
Section 5.1 Consummation of Transactions/Clearwire Board Approval. From
and after the date of this Agreement, each Party shall use Reasonable Efforts to
take, or cause to be taken, all actions, and to do, or cause to be done, all
things necessary, proper or advisable and consistent with applicable Law to
perform its obligations under this Agreement and to consummate the Transactions
as soon as reasonably practicable. Clearwire covenants that it will seek
approval of the transactions contemplated by this Agreement at the next
regularly scheduled meeting of the board of directors of Clearwire after the
execution of this Agreement, if not before.
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Section 5.2 Compliance with Law. Prior to Closing, Seller shall comply in
all material respects with Laws applicable to the License.
Section 5.3 Certain Notices. Prior to the Closing, each Party shall
promptly notify the other Parties in reasonable detail:
(a) upon the commencement of, or the impending or threatened
commencement of, or upon obtaining knowledge of any facts that would give
rise to, any claim, action or proceeding brought to enjoin the
consummation of the Transactions, or against or relating to (i) the
notifying Party or its properties or assets, which could materially
adversely affect the Transactions or its ability to perform its
obligations hereunder, or (ii) the License or its use;
(b) upon the occurrence of, or the impending or threatened
occurrence of, or upon obtaining knowledge of any facts that would give
rise to, any event which could cause or constitute a material breach of
any of its representations, warranties, covenants or agreements contained
in this Agreement, and until the Closing shall use Reasonable Efforts to
prevent or promptly remedy such breach; and
(c) upon the occurrence or existence of any event, condition,
circumstance or state of facts known to the notifying Party, which has had
or could have a material adverse effect on the Transactions or its ability
to perform its obligations hereunder, or could materially adversely affect
the License or its use.
Section 5.4 Confidentiality. Pursuant to this Agreement and the
performance thereof, each Party may receive certain Confidential Information.
The use of such Confidential Information shall be governed by that certain
letter agreement addressed to Seller from Clearwire, dated September 16, 2004
(the "Confidentiality Agreement"); provided, however, nothing in this Agreement
or the Confidentiality Agreement shall prevent a Party from disclosing
information that is required to be disclosed pursuant to federal securities
laws, but in such event, only to the extent such disclosure is required. In
addition, Seller acknowledges and agrees that the financial terms of this
Agreement may be required to be separately stated in the consolidated financial
statements of Purchaser and/or its Affiliates and that the disclosure by
Purchaser or its Affiliates of such financial statements shall not be a breach
of this Agreement or the Confidentiality Agreement. Purchaser agrees to
undertake to comply with the Confidentiality Agreement with regard to
Confidential Information as if it were Clearwire.
Section 5.5 Further Assurances. Prior to, at and following the Closing,
each Party shall forthwith upon request execute and deliver such documents and
take such actions as may reasonably be requested by the other Party in order to
effectuate the purposes of this Agreement.
Section 5.6 FCC Qualifications. Seller and Purchaser each hereby covenants
and agrees that, prior to the Closing, it shall use Reasonable Efforts not to
take action that will remove any of those qualifications required by FCC rules
or policies, or the Communications Act of 1934, as amended, for it to hold the
License.
11
Section 5.7 FCC Consent. Seller and Purchaser will use Reasonable Efforts
to prepare all application forms and related exhibits, certifications and other
documents necessary to secure the Consent of the FCC to the Transactions
(collectively, the "FCC Application") and to file the FCC Application within ten
(10) Business Days following the Effective Date. If Purchaser desires to
designate another wholly-owned subsidiary of Clearwire to receive the License at
the Closing, it may do so at any time prior to the filing of the FCC Application
without restriction, or at any time after the filing of the FCC Application only
if such designation would not result in a delay in the FCC's consideration of
the FCC Application. Seller and Purchaser each will promptly and diligently
prepare, file and prosecute all necessary amendments, briefs, pleadings,
petitions for reconsideration, applications for review, waiver requests,
documents and supporting data, and take all such actions and give all such
notices as may be required or requested by the FCC or as may be appropriate to
expedite the grant of the FCC Application without conditions materially adverse
to Seller or Purchaser. If any person or entity petitions the FCC to deny the
FCC Application, or if the FCC grants such application and any person or entity
petitions for reconsideration or review of such grant before the FCC or appeals
or applies for review in any judicial proceeding, then Seller and Purchaser will
use their Reasonable Efforts to oppose such petition before the FCC or defend
such grant by the FCC. If the FCC denies the FCC Application or grants such
application with conditions materially adverse to Seller or Purchaser, then if
requested to do so by the other Party, Seller and Purchaser will use their
Reasonable Efforts to secure reconsideration or review of such action. If the
Closing has not occurred within 180 days following the date of the grant of the
FCC Application, Seller and Purchaser shall use Reasonable Efforts to obtain
such extensions of the effectiveness of such grant as is reasonably necessary to
permit the scheduling of Closing pursuant to Section 2.4. Purchaser will be
responsible for the payment of all FCC application filing fees incurred in
connection with this Section 5.7.
Section 5.8 Seller Affirmative Covenants. From the Effective Date until
the Closing Seller shall use Reasonable Efforts to (a) preserve the License; and
(b) comply with all Laws applicable to the License.
Section 5.9 Seller Negative Covenants. Subject to the requirements of WT
Docket No. 03-66, Seller shall not, and shall not enter into, any agreement,
arrangement or understanding to, or otherwise offer or commit to (a) sell,
transfer, assign, lease or dispose of the License or of the spectrum to be
covered by the License or any interests therein or portion thereof, or negotiate
therefore, or (b) create, incur or suffer to exist any Lien or other liability
on the License or the spectrum to be covered by the License or any interest
therein.
Section 5.10 Access. Subject to the provisions of Section 5.4 above
regarding confidentiality, between the date of this Agreement and the Closing
Date, Seller shall, during normal business hours and following reasonable
advance written notice from Purchaser (a) give Purchaser and its representatives
and advisors access to all books and records of Seller relating to the License;
(b) permit Purchaser and its representatives and advisors to make such
inspections thereof as Purchaser may reasonably request; and (c) cause the
officers and advisors of Seller to furnish Purchaser with such information with
respect to the License as Purchaser may from time to time reasonably request.
12
Section 5.11 Publicity. Neither Seller nor Purchaser shall issue any press
release or public announcement concerning this Agreement or the transactions
contemplated hereby without obtaining the prior written approval of the other
party hereto, which approval will not be unreasonably withheld or delayed,
unless disclosure is otherwise required by applicable Law, provided that, to the
extent required by applicable Law, the party intending to make such release
shall use its Reasonable Efforts consistent with such applicable Law to consult
with the other party with respect to the text thereof.
ARTICLE 6 CONDITIONS TO CLOSING
Section 6.1 Conditions to the Obligations of Both Parties. Each Party's
obligation to consummate the Transactions contemplated by this Agreement are
subject to the satisfaction or waiver, on or prior to the Closing Date, of each
of the following conditions, as applicable to the Party specified:
(a) The FCC shall have granted the FCC Application, such grant shall
have become Final Order, and such Final Order shall be in full force and
effect; and all other notices, filings and Consents required to be made or
obtained prior to the Closing by either Party or any of its respective
Affiliates with any Governmental Authority in connection with the
execution and delivery of this Agreement and the consummation of the
Transactions shall have been made or obtained.
(b) No preliminary or permanent injunction or other order, decree or
ruling issued by a Governmental Authority, nor any Law promulgated or
enacted by any Governmental Authority, shall be in effect that would
impose material limitations on the ability of either Party to consummate
the Transactions.
Section 6.2 Conditions to the Obligations of Seller. Seller's obligation
to consummate the Transactions contemplated by this Agreement are subject to the
satisfaction or waiver on or prior to the Closing Date of the following
conditions:
(a) The representations and warranties of Purchaser and Clearwire
contained herein shall be true and correct in all material respects
(except for representations and warranties that are qualified as to
materiality, which shall be true and correct) as of the Closing as if made
on and as of the Closing Date (except that representations and warranties
that are made as of a specific date need be so true and correct only as of
such date), and Seller shall have received certificates to such effect
dated the Closing Date and executed by a duly authorized officer of
Purchaser and Clearwire, respectively.
(b) The covenants and agreements of Purchaser and Clearwire to be
performed under this Agreement on or prior to the Closing shall have been
duly performed in all material respects, and Seller shall have received
certificates to such effect dated the Closing Date and executed by a duly
authorized officer of Clearwire and Purchaser, respectively.
13
(c) Purchaser and Clearwire having delivered to Seller the Purchase
Price pursuant to Section 2.3.
(d) If Seller is an Accredited Investor on the Closing Date and is
to receive Clearwire Stock pursuant to Section 2.3, Purchaser shall have
executed and delivered to Seller: (i) a joinder, attached hereto as
Exhibit C, to the Amended and Restated Stockholders Agreement, dated March
16, 2004, by and among Clearwire and Clearwire's stockholders; (ii) a
joinder to the Registration Rights Agreement, dated as of March 16, 2005,
between Clearwire Corporation and certain holders of Clearwire's Class A
Common Stock attached hereto as Exhibit F; and (iii) a side letter,
attached hereto as Exhibit G, with respect to the Registration Rights
Agreement.
(e) Purchaser shall have executed and delivered to Seller an
Instrument of Assignment with respect to the License and the Interference
Agreements in the form of Exhibit B.
Section 6.3 Conditions to the Obligations of Purchaser. Purchaser's
obligation to consummate the Transactions contemplated by this Agreement are
subject to the satisfaction or waiver on or prior to the Closing Date of each of
the following conditions:
(a) The representations and warranties of Seller contained herein
shall be true and correct in all material respects (except for
representations and warranties that are qualified as to materiality, which
shall be true and correct) as of the Closing as if made on and as of the
Closing Date (except that representations and warranties that are made as
of a specific date need be so true and correct only as of such date), and
Purchaser shall have received certificates to such effect dated the
Closing Date and executed by a duly authorized officer of Seller.
(b) The covenants and agreements of Seller to be performed under
this Agreement on or prior to the Closing shall have been duly performed
in all material respects, and Purchaser shall have received a certificate
to such effect dated the Closing Date and executed by a duly authorized
officer of Seller.
(c) Seller shall have executed and delivered to Purchaser an
Instrument of Assignment with respect to the License and the Interference
Agreements in the form of Exhibit B.
(d) If Seller is an Accredited Investor on the Closing Date and is
to receive Clearwire Stock pursuant to Section 2.3, Seller shall have
executed and delivered to Clearwire: (i) a joinder, attached hereto as
Exhibit C, to the Amended and Restated Stockholders Agreement, dated March
16, 2004, by and among Clearwire and Clearwire's stockholders; (ii) a
joinder to the Registration Rights Agreement, dated as of March 16, 2005,
between Clearwire Corporation and certain holders of Clearwire's Class A
Common Stock attached hereto as Exhibit F; and (iii) a side letter,
attached hereto as Exhibit G, with respect to the Registration Rights
14
Agreement; and (iv) a completed Stockholder Questionnaire in the form
attached hereto as Exhibit D.
(e) Seller shall have delivered to Purchaser a completed IRS Form
W-9.
(f) Clearwire's board of directors shall have approved the
transactions contemplated by this Agreement.
ARTICLE 7 TERMINATION
Section 7.1 Termination. This Agreement may be terminated at any time:
(a) by mutual written consent of Purchaser and Seller;
(b) (i) by Seller if the board of directors of Clearwire has not
approved the transactions contemplated by this Agreement on or before
September 30, 2005, (ii) by Purchaser if the board of directors of
Clearwire does not approve the transactions contemplated by this Agreement
at its next regularly scheduled board meeting after the date of this
Agreement, or (iii) by either Purchaser or Seller if (A) there shall be
any law or regulation that makes consummation of the Transactions illegal
or otherwise prohibited, or (B) any judgment, injunction, order or decree
of any court or other Governmental Entity having competent jurisdiction
enjoining Purchaser and Seller from consummating the Transaction is
entered and such judgment, injunction or order shall have become final and
non-appealable;
(c) by any Party upon the material breach of any representation,
warranty or covenant in this Agreement by another Party if such breach is
not cured within ten (10) days following written notice by the
non-breaching Party which notice shall describe the breach; or
(d) by either Purchaser or Seller if the Closing has not occurred on
or before the first anniversary of the Effective Date, provided that the
failure to close on or before such date is not the fault of the
terminating Party.
Section 7.2 Effect of Termination. In the event of a termination of this
Agreement, neither Party shall have any liability or further obligation to the
other, except that
(a) Seller's obligation to return the Deposit as set forth in
Section 2.2;
(b) nothing herein will relieve a Party from liability for any
breach by such Party of this Agreement; and
(c) the provisions of this Article 7, Article 8 and Article 9 shall
survive the termination of this Agreement. Whether or not Closing occurs,
all costs and expenses incurred in connection with this Agreement and the
Transactions shall be paid by the Party incurring such expenses.
15
ARTICLE 8 SURVIVAL AND REMEDIES
Section 8.1 Survival. The representations and warranties contained in this
Agreement, the Instrument of Assignment for License and any certificates given
by one or more Parties to any other Party as an incident to Closing the
Transactions of this Agreement shall survive the Closing until one (1) year
after the Closing Date and shall expire at such time. The covenants and other
agreements contained in this Agreement which do not expire by their terms on or
before the Closing shall survive the Closing until the expiration of the
applicable statute of limitations (including any waivers or extensions thereof)
with respect to such matters.
Section 8.2 Seller Indemnification. Seller shall indemnify Purchaser, its
representative members, managers, officers, employees, agents, successors and
assigns (the "Purchaser Indemnified Parties") and hold the Purchaser Indemnified
Parties harmless from and against any and all Damages based upon, attributable
to or resulting from:
(a) the failure of any representation or warranty of Seller set
forth in this Agreement, or any representation or warranty contained in
any certificate delivered by Seller pursuant to this Agreement, to be
materially true and correct as of the dates made;
(b) the material breach of any covenant or other agreement on the
part of Seller under this Agreement; and
(c) the ownership of the License and the Interference Agreements
prior to the Closing.
Section 8.3 Purchaser Indemnification. Purchaser shall indemnify Seller,
and Seller's representative members, managers, officers, employees, agents,
successors and assigns (collectively, the "Seller Indemnified Parties") and hold
the Seller Indemnified Parties harmless from and against any and all Damages
based upon, attributable to or resulting from:
(a) the failure of any representation or warranty of Purchaser set
forth in this Agreement, or any representation or warranty contained in
any certificate delivered by Purchaser or Clearwire pursuant to this
Agreement, to be materially true and correct as of the dates made;
(b) the breach of any covenant or other agreement on the part of
Purchaser under this Agreement; and
(c) the ownership of the License and the Interference Agreements
following the Closing.
Section 8.4 Indemnification Procedures.
(a) In the event that any claim shall be asserted by any Person in
respect of which payment may be sought under 0Section 8.2 or 0Section 8.3
hereof (each, a
16
"Claim"), the indemnified party shall reasonably and promptly cause
written notice of the assertion of any Claim of which it has knowledge
which is covered by this indemnity to be forwarded to the indemnifying
party. The indemnifying party shall have the right, at its sole option and
expense, to be represented by counsel of its choice, which must be
reasonably satisfactory to the indemnified party, and to defend against,
negotiate, settle or otherwise deal with any Claim which relates to any
Damages indemnified against hereunder. If the indemnifying party elects to
defend against, negotiate, settle or otherwise deal with any Claim which
relates to any Damages indemnified against hereunder, it shall within five
(5) days (or sooner, if the nature of the Claim so requires) notify the
indemnified party of its intent to do so. If the indemnifying party elects
not to defend against, negotiate, settle or otherwise deal with any Claim
which relates to any Damages indemnified against hereunder, fails to
notify the indemnified party of its election as herein provided or
contests its obligation to indemnify the indemnified party for such
Damages under this Agreement, the indemnified party may defend against,
negotiate, settle or otherwise deal with such Claim. If the indemnified
party defends any Claim, then the indemnifying party shall reimburse the
indemnified party for the expenses of defending such Claim upon submission
of periodic bills. If the indemnifying party shall assume the defense of
any Claim, the indemnified party may participate, at his or its own
expense, in the defense of such Claim; provided, however, that such
indemnified party shall be entitled to participate in any such defense
with separate counsel at the expense of the indemnifying party if (i) so
requested by the indemnifying party to participate or (ii) in the
reasonable opinion of counsel to the indemnified party, a conflict or
potential conflict exists between the indemnified party and the
indemnifying party that would make such separate representation advisable;
and provided, further, that the indemnifying party shall not be required
to pay for more than one such counsel for all indemnified parties in
connection with any Claim. The Parties hereto agree to cooperate fully
with each other in connection with the defense, negotiation, or settlement
of any such Claim. The indemnifying party shall not, without the express
written consent of the indemnified party, settle or compromise any Claim,
or consent to the entry of any judgment against the indemnified party that
does include an unconditional term thereof giving the indemnified party a
full and complete release from all liability with respect to such Claim.
(b) After any final judgment or award shall have been rendered by a
court, arbitration board or administrative agency of competent
jurisdiction and the expiration of the time in which to appeal therefrom,
or a settlement shall have been consummated, or the indemnified party and
the indemnifying party shall have arrived at a mutually binding agreement
with respect to a Claim hereunder, the indemnified party shall forward to
the indemnifying party notice of any sums due and owing by the
indemnifying party pursuant to this Agreement with respect to such matter.
(c) The failure of the indemnified party to give reasonably prompt
notice of any Claim shall not release, waive or otherwise affect the
indemnifying party's
17
obligations with respect thereto except to the extent that the
indemnifying party can demonstrate actual loss and prejudice as a result
of such failure.
(d) Notwithstanding anything to the contrary in this Article 8 or
elsewhere in this Agreement, no Party shall be required to indemnify or
hold any other Party harmless under this Agreement or any certificates,
documents, agreements and instruments delivered pursuant to the terms of
this Agreement unless such right to indemnification or to be held harmless
is asserted by written notice from indemnified Party or Parties to the
indemnifying Party or Parties received within twelve (12) months of the
Closing Date describing with specificity the facts giving rise to the
asserted right. In no event shall Damages collected by any one or more of
Purchaser and Clearwire against Seller exceed the amount of the Purchase
Price. In no event shall Damages collected by Seller against Purchaser
and/or Clearwire exceed the amount of the Purchase Price.
Section 8.5 Remedies. IN NO EVENT SHALL ANY PARTY BE LIABLE FOR INDIRECT,
SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES ARISING OUT OF A BREACH OF THIS
AGREEMENT, EVEN IF ADVISED AT THE TIME OF BREACH OF THE POSSIBILITY OF SUCH
DAMAGES, PROVIDED, HOWEVER, THAT THIS LIMITATION SHALL NOT APPLY TO THE RIGHT OF
INDEMNIFICATION BY A PARTY UNDER SECTIONS 8.2 AND 8.3 HEREOF FOR SUCH TYPES OF
DAMAGES UNDER A CLAIM MADE BY A THIRD-PARTY.
ARTICLE 9 MISCELLANEOUS
Section 9.1 Entire Agreement. This Agreement constitutes the entire
agreement between the Parties pertaining to the subject matter hereof and
thereof and supersedes all prior and contemporaneous agreements, understandings,
negotiations and discussions, whether oral or written, of the Parties with
respect to the subject matter hereof and thereof, except with regard to the
Letter Agreement, dated September 16, 2004, referenced in Section 5.4 above.
Section 9.2 Amendments and Waivers. Any provision of this Agreement may be
amended or waived if, and only if, such amendment or waiver is in writing and
signed (in the case of an amendment) by Seller and Purchaser or (in the case of
a waiver) by the Party against whom the waiver is to be effective. No failure or
delay by any Party in exercising any right, power or privilege hereunder shall
operate as a waiver thereof nor shall any single or partial exercise thereof
preclude any other or further exercise thereof or the exercise of any other
right, power or privilege.
Section 9.3 Remedies Cumulative. Except as otherwise provided herein, all
rights, powers and remedies provided under this Agreement or otherwise available
in respect hereof at law or in equity shall be cumulative and not alternative,
and the exercise or beginning of the exercise of any thereof by a Party shall
not preclude the simultaneous or later exercise of any other such right, power
or remedy by such Party.
18
Section 9.4 Assignment. This Agreement shall be binding upon and shall
inure to the benefit of the Parties and their respective successors and
permitted assigns. This Agreement may not be assigned by any Party without the
prior written consent of the other Party; provided, however, that Purchaser may,
at any time prior to the Closing, assign this Agreement or Purchaser's right to
receive assignment of the License without the consent of Seller, but subject, in
all circumstances, to the limitations set forth in Section 5.7 above, and
further provided that Purchaser and Clearwire shall not be released from any
obligations hereunder as a result of such assignment.
Section 9.5 Notices. All notices or other communications hereunder shall
be in writing and shall be deemed to have been duly given or made (i) upon
delivery if delivered personally (by courier, overnight delivery service or
otherwise), as evidenced by written receipt or other written proof of delivery
(which may be a printout of the tracking information of a courier or overnight
delivery service that made such delivery) or (ii) upon delivery if sent by
United States Postal Service certified mail, return receipt requested, as
evidenced by the written receipt of delivery to the applicable addresses set
forth below (or such other address which any Party may from time to time
specify):
If to Seller:
Baypoint St. Louis, LLC
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy (which shall not constitute notice) to:
▇▇▇▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ PLC
▇▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇, Esq.
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
If to Purchaser:
Clearwire Spectrum Holdings LLC
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇. ▇.▇.
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
19
With a copy to:
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
If to Clearwire:
Clearwire Corporation
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇. ▇.▇.
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to:
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Section 9.6 Governing Law; Waiver of Jury Trial.
(a) This Agreement shall be governed by, and construed in accordance
with, the internal laws of the State of Washington, without reference to
the choice of law principles thereof.
(b) THE PARTIES HEREBY IRREVOCABLY WAIVE ANY AND ALL RIGHT TO TRIAL
BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATED TO THIS
AGREEMENT OR THE TRANSACTIONS.
Section 9.7 Expenses. Except as otherwise expressly provided in this
Agreement, whether or not the Transactions are consummated, the Parties shall
bear their respective expenses (including, but not limited to, all compensation
and expenses of counsel, financial advisors, consultants, actuaries and
independent accountants) incurred in connection with this Agreement and the
Transactions. All filing fees required to be paid to any Governmental Authority
in connection with satisfying the conditions set forth in Section 5.7 will be
borne by Purchaser.
20
Section 9.8 Invalidity. In the event that any of the provisions contained
in this Agreement or in any other instrument referred to herein, shall for any
reason be held to be invalid, illegal or unenforceable in any respect, such
invalidity, illegality or unenforceability shall not affect any other provision
of this Agreement or such other instrument and such provision will be
ineffective only to the extent of such invalidity, illegality or
unenforceability, unless the consummation of the Transactions is impaired
thereby.
Section 9.9 Counterparts. This Agreement may be executed and delivered
(including by facsimile transmission) in one or more counterparts, each of which
shall be deemed an original, but all of which together shall constitute one and
the same instrument.
Section 9.10 Headings. The headings of the Articles and Sections herein
are inserted for convenience of reference only and are not intended to be a part
of or to affect the meaning or interpretation of this Agreement.
[SIGNATURE PAGE FOLLOWS]
21
IN WITNESS WHEREOF, the Parties have duly executed this Agreement as
of the date first above written.
BAYPOINT ST. LOUIS, LLC
By: BAYPOINT TV, INC., its sole member
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------------------------------------
Title: President
-------------------------------------------------------
CLEARWIRE CORPORATION
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
----------------------------------------------------------
Name ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title Executive Vice-President
CLEARWIRE SPECTRUM HOLDINGS LLC
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
----------------------------------------------------------
Name ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Executive Vice-President
22
Exhibit A
LICENSE
[INSERT COPY OF LICENSE HERE]
Exhibit A
EXHIBIT B
INSTRUMENT OF ASSIGNMENT
INSTRUMENT OF ASSIGNMENT (the "Instrument of Assignment"), dated as of
, 2005, by and between Baypoint St. Louis, LLC, a Virginia limited
liability company ("Assignor"), and Clearwire Spectrum Holdings LLC, a Nevada
limited liability company ("Assignee"). Capitalized terms used herein without
definition shall have the respective meanings assigned to them in the Purchase
Agreement (as defined below).
WHEREAS, Assignor and Assignee have entered into a Purchase Agreement (the
"Purchase Agreement"), dated as of September 9, 2005, pursuant to which,
Assignor agreed to convey to Assignee, and Assignee agreed to acquire, the
License (WLK422);
WHEREAS, Assignor and Assignee have filed an application with the FCC
requesting the assignment of the certain license to Assignee; and
WHEREAS, the FCC has granted an application for the assignment of the
License to Assignee;
NOW, THEREFORE, in consideration of the promises and the mutual
representations, warranties, covenants, conditions, and agreements hereinafter
set forth, the Parties agree as follows:
Assignment. Pursuant to Section 2 of the Purchase Agreement, for valuable
consideration, receipt of which is hereby acknowledged, Assignor, intending to
be legally bound, does hereby sell, assign, transfer, convey, and deliver to
Assignee, its successors and assigns forever, all right and interest of Assignor
in and to the License and the Interference Agreements, free and clear of all
Liens.
Terms of Purchase Agreement Control. Nothing contained in this Instrument
of Assignment shall in any way supersede, modify, replace, amend, change,
rescind, waive, exceed, expand, enlarge, or in any way affect the provisions of
the Purchase Agreement, including the warranties, covenants, agreements,
conditions and representations contained in the Purchase Agreement and, in
general, any of the rights and remedies, and any of the obligations and
indemnifications, of Assignor or Assignee set forth in the Purchase Agreement.
Without limiting the generality of the foregoing, this instrument is subject to
the limitations of liability in Article 8 and, particularly, Section 8.4(d).
Miscellaneous. This Instrument of Assignment (a) is executed pursuant to
the Purchase Agreement and may be executed in counterparts, each of which as so
executed shall be deemed to be an original, but all of which together shall
constitute one instrument, (b) shall be governed by and in accordance with the
internal laws of the State of Washington, without regard to the principles of
conflicts of law thereof and (c) shall be binding upon and inure to the benefit
of the Parties hereto and their respective successors and permitted assigns.
Exhibit B
IN WITNESS WHEREOF, Assignor and Assignee have each caused this Instrument
of Assignment to be duly executed and delivered as of the date first above
written.
BAYPOINT ST. LOUIS, LLC
By: BAYPOINT TV, INC., its sole member
By:
----------------------------------------------------------
Name:
--------------------------------------------------------
Title:
-------------------------------------------------------
CLEARWIRE SPECTRUM HOLDINGS LLC
By:
----------------------------------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Executive Vice-President
Exhibit B
Exhibit C
JOINDER TO Amended and Restated Stockholders Agreement
Exhibit C
Exhibit D
Stockholder Questionnaire
Exhibit D
Exhibit E
Interference agreements
1. Interference Avoidance Agreement, executed in 1995, by and among Silex
▇-▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ County ▇-▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇-▇▇▇▇▇▇▇▇▇▇
R-1 School District, ▇▇▇▇▇▇ County R-3 School District, Van-Far R-1 School
District, RuralVision Central, Inc., Heartland Wireless Communications, Inc.,
St. Louis Regional Educational & Public Television Commission, HITEC, Inc., St.
Louis Community College, Instructional Opportunities, Inc., ▇▇▇▇▇ ▇. du Treil,
Baypoint TV, Inc., Missouri Baptist College, ITFS, Inc., Cooperating School
Districts of St. Louis Suburban Area, St. Louis Police Department, ▇▇▇▇
Multichannels, Ltd., Westinghouse Broadcasting Co., Inc. and People's Choice TV
Corp.
2. Interference Avoidance Agreement, executed in 1995, by and among St.
Louis Regional Educational & Public Television Commission, HITEC, Inc., St.
Louis Community College, Instructional Opportunities, Inc., ▇▇▇▇▇ ▇. du Treil,
Baypoint TV, Inc., Missouri Baptist College, ITFS, Inc., Cooperating School
Districts of St. Louis Suburban Area, St. Louis Police Department, ▇▇▇▇
Multichannels, Ltd., Westinghouse Broadcasting Co., Inc., People's Choice TV
Corp., Christian Fellowship School, De ▇▇▇▇ Consolidated School District,
Nashville Community School District #9, Waltonville Community ▇▇▇▇ #▇,
▇▇▇▇▇▇-▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ #▇▇▇ and Heartland Wireless Communications, Inc.
3. Interference Avoidance Agreement, executed in 1995, by and among
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ #▇▇▇, Patoka Community Unit School
District #100, Altamont Community Unit School District #10, Mulberry Grove
Community Unit School District, Salem Community High School, Heartland Wireless
Communications, Inc., St. Louis Regional Educational & Public Television
Commission, HITEC, Inc., St. Louis Community College, Instructional
Opportunities, Inc., ▇▇▇▇▇ ▇. du Treil, Baypoint TV, Inc., Missouri Baptist
College, ITFS, Inc., Cooperating School Districts of St. Louis Suburban Area,
St. Louis Police Department, ▇▇▇▇ Multichannels, Ltd., Westinghouse Broadcasting
Co. Inc., and People's Choice TV Corp.
4. Interference Avoidance Agreement, executed in 1995, by and among Odin
High School, KasKaskia Cikkege District, ▇▇▇▇▇▇ Township High School District
#204, Mt. ▇▇▇▇▇▇ Township High School District #▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ #▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Unit School District #200, Southern
Illinois Wireless Cable Company, Salem Mobile & Modular Home Sales, ▇▇▇▇▇▇
City-Omaha-Enfield County Unit School District #3, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Heartland
Wireless Communications, Inc., St. Louis Regional Educational & Public
Television Commission, HITEC, Inc., St. Louis Community College, Instructional
Opportunities, Inc., ▇▇▇▇▇ ▇. du Treil, Baypoint TV, Inc., Missouri Baptist
College, ITFS, Inc. Cooperating School Districts of St. Louis Suburban Area, St.
Louis Police Department, ▇▇▇▇ Multichannels, Ltd., Westinghouse Broadcasting
Co., Inc. and People's Choice TV Corp.
5. Letter Agreement, dated January 5, 1989, by and among People's Choice
TV Partners, Baypoint TV, Inc. and Missouri Baptist College.
Exhibit E
6. Interference Agreement, dated , by and between Baypoint St.
Louis, LLC, and St. LouE, LLC.
Exhibit E
Exhibit F
JOINDER TO Registration Rights Agreement
Exhibit F
Exhibit G
Side Letter Regarding Registration Rights
Exhibit G
