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EXHIBIT 4.5
FIRST AMENDMENT
TO
SECOND AMENDED AND RESTATED AGREEMENT
AMONG SERIES E, SERIES F AND SERIES G PREFERRED STOCKHOLDERS
AND SENIOR REGISTRATION RIGHTS AGREEMENT
This FIRST AMENDMENT TO SECOND AMENDED AND RESTATED AGREEMENT AMONG SERIES E,
SERIES F AND SERIES G PREFERRED STOCKHOLDERS AND SENIOR REGISTRATION RIGHTS
AGREEMENT (this "First Amendment"), which amends the SECOND AMENDED AND RESTATED
AGREEMENT AMONG SERIES E, SERIES F and SERIES G PREFERRED STOCKHOLDERS AND
SENIOR REGISTRATION RIGHTS AGREEMENT (the "Second Amended and Restated
Agreement") dated as of September 7, 1999 by and among AirNet Communications
Corporation, a Delaware corporation (the "Company"), Xxxxxx Corporation, a
Delaware corporation ("Xxxxxx"), the Series E Preferred Stockholders listed on
Exhibit A thereto ("Series E Investors"), the Series F Preferred Stockholders
listed on Exhibit B thereto, the Series G Preferred Stockholders listed on
Exhibit C thereto, Tandem PCS Investments, L.P., a Delaware limited partnership
("Tandem"), Xxxxx Capital Management, L.P. ("Xxxxx"), SCP Private Equity
Partners, L.P. ("SCP"), HVFM-I, L.P. ("HVFM"), APA Excelsior III, L.P. ("APA")
and such other purchasers identified therein is made as of September 20, 1999 by
and among the Company, Tandem, Xxxxx, SCP, HVFM, APA and the other shareholders
identified on the signature pages hereto (Tandem, Xxxxx, SCP, HVFM, APA and such
other shareholders are collectively, "Shareholders").
WITNESSETH:
WHEREAS, the Company is contemplating an initial public offering of shares of
its authorized but unissued common stock, in accordance with the terms of a
registration statement to be filed with the Securities and Exchange Commission;
and
WHEREAS, the Company and the Shareholders desire to amend the Second Amended and
Restated Agreement in accordance with Section 4.9 thereof to clarify certain
provisions relating to piggyback registration rights.
NOW, THEREFORE, intending to be legally bound, the parties hereto agree that the
Second Amended and Restated Agreement is hereby amended as follows:
1. Section 2.2(a) of the Second Amended and Restated Agreement is
hereby amended and restated in its entirety as follows:
"2.2 Piggyback Registration
(a) Notice of Piggyback Registration and Inclusion of
Registrable
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Securities. Subject to the terms of this Agreement, in the event the Company
decides to Register any of its securities (either for its own account or the
account of a security holder other than pursuant to a demand Registration) on a
form that would be suitable for a Registration involving Registrable Securities
and such Registration does not relate to an initial public offering of the
Company's securities (which Registration pursuant to an initial public offering
shall not trigger piggyback rights hereunder), the Company will (i) promptly
give each Holder written notice thereof (which shall include a list of the
jurisdictions in which the Company intends to attempt to qualify such securities
under the applicable Blue Sky or other state securities laws) and (ii) include
in such Registration (and any related qualification under Blue Sky laws or other
compliance), and in any underwriting involved therein, all the Registrable
Securities specified in a written request delivered to the Company by any Holder
within fifteen (15) days after delivery of such written notice from the
Company."
2. Section 2.2(b)(iii) of the Second Amended and Restated Agreement is
hereby amended and restated in its entirety as follows:
"(iii) Allocation of Shares in Piggyback
Registration. In the event that the Underwriter's Representative limits the
number of shares to be included in a Registration pursuant to Section
2.2(b)(ii), or shall otherwise require a limitation of the number of shares to
be included in the Registration, then the Company will include in such
Registration first securities proposed by the Company to be sold for its own
account, the registration of which will not be limited or otherwise restricted
as a result of the Underwriter's Representative's limit. If after including in
the Registration the securities proposed by the Company to be sold for its own
account, the number of shares proposed for Registration by Holders pursuant to
Section 2.2 must be limited in order to avoid exceeding the Underwriter's
Representative's limit, the securities proposed by any member of Key Management
to be sold for his/her own account shall be reduced (including the elimination
of all such securities from the Registration, if necessary) such that such
Registration does not exceed the Underwriter's Representative's limit. If after
reducing the number of securities proposed by any member of Key Management to be
sold for his/her own account to zero, it is necessary to limit the shares
proposed for Registration by other Holders, the limitation on the number of
shares proposed for Registration by such other Holders shall be applied on a pro
rata basis based upon the number of shares of such securities proposed to be
sold and so requested to be included by such other Holders so that such
Registration does not exceed the Underwriter's Representative's limit."
3 Section 2.1(e)(iii) of the Second Amended and Restated Agreement is
hereby amended and restated in its entirety as follows:
"(iii) Marketing Limitation in Demand Registration. In the
event the Underwriter's Representative advises the Initiating Holders or
Significant Holder, as the case may be, in writing that market factors
(including, without limitation, the aggregate number of shares of Common Stock
requested to be Registered, the general condition of the market, and the status
of the persons proposing to sell securities pursuant to the Registration)
require a limitation of the number of shares to be underwritten, the securities
proposed by any member of Key Management to be sold for his/her own account
shall be reduced (including the elimination of all
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such securities from the Registration, if necessary) such that such Registration
does not exceed the Underwriter's Representative's limit. If after reducing the
number of securities proposed by any member of Key Management to be sold for
his/her own account to zero, it is necessary to further limit the number of
shares to be underwritten, the limitation on the remaining securities proposed
for Registration (including securities proposed by the Company to be sold for
its own account or for the accounts of others at the Company's request) shall be
applied on a pro rata basis based upon the number of shares of such securities
proposed to be sold and so requested to be included in the Registration so that
such Registration does not exceed the Underwriter's Representative's limit. No
Registrable Securities or other securities excluded from the underwriting by
reason of this Section 2.1(e)(iii) shall be included in such Registration
Statement."
4 This First Amendment may be executed in any number of counterparts
with the same effect as if all signatory parties had signed the same document.
All counterparts shall be construed together and shall constitute one and the
same instrument.
5 Except as amended by this First Amendment, the Second Amended and
Restated Agreement remains in full force and effect.
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IN WITNESS WHEREOF, the undersigned have executed this First Amendment as of the
day and year written above.
COMPANY:
AIRNET COMMUNICATIONS CORPORATION
By: /s/ R. Xxx Xxxxxxxx, Xx.
Name: R. Xxx Xxxxxxxx, Xx.
Title: President and Chief Executive Officer
[Shareholder Signature(s) on Next Page]
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Signature Page
First Amendment to Second Amended and Restated Agreement
among Series E, Series F and Series G Preferred Stockholders
and Senior Registration Rights Agreement
SHAREHOLDER:
IF ENTITY:
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(Name of Entity)
By:
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(Signature)
Name:
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Title:
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IF INDIVIDUAL(s):
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(Signature)
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(Print Name)
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(Signature)
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(Print Name)
