EXHIBIT 10.29
SUBSCRIPTION AGREEMENT
This Subscription Agreement (this "Agreement") is entered into by and
between Xxxx Canada, a Canadian corporation incorporated under the Canada
Business Corporations Act ("Xxxx Canada"), and Clearwire Corporation, a Delaware
corporation ("Clearwire" or the "Company"). The Company and Xxxx Canada agree as
follows:
1. SUBSCRIPTION FOR SHARES. Xxxx Canada agrees to subscribe for and the
Company agrees to issue to Xxxx Canada 25,000,000 shares of the Class A Common
Stock of Clearwire (the "Purchased Shares") on the terms and conditions set
forth in this Agreement.
2. SUBSCRIPTION PRICE. The purchase price for the Purchased Shares shall
be $4.00 per share for an aggregate subscription price of U.S. $100,000,000.00
(the "Purchase Price").
3. PAYMENT OF PURCHASE PRICE. Xxxx Canada agrees to pay the aggregate
Purchase Price for the Purchased Shares to Clearwire upon the Closing (as
defined below). The Purchase Price shall be paid in immediately available funds
by wire transfer to the Company in accordance with the wiring instructions
provided by the Company.
4. CLOSING DATE. The closing of Xxxx Canada's purchase of the Purchased
Shares shall take place remotely via the exchange of documents and signatures,
at 10:00 a.m. (Pacific time), on the date that is two business days following
the termination of the applicable waiting period under the Xxxx-Xxxxx-Xxxxxx
Antitrust Improvements Act of 1976, as amended, and the rules and regulations
thereunder (the "HSR Act"), or at such other time and place as the Company and
Xxxx Canada mutually agree upon, orally or in writing (which time and place are
designated as the "Closing").
5. CLEARWIRE CLOSING DELIVERIES. At the Closing, Clearwire shall deliver
to Xxxx Canada the following documents:
(a) a stock certificate representing the Purchased Shares, free and
clear of all liens, registered in Xxxx Canada's name;
(b) a certificate of good standing of Clearwire issued by the
Delaware Secretary of State;
(c) a certificate, executed by the Secretary of the Company,
attaching thereto: (i) the Company's Certificate of Incorporation and Bylaws in
effect on the date of this Agreement, and (ii) resolutions of the Board of
Directors of the Company (x) authorizing the Transaction Agreements (as defined
below) and the transactions contemplated thereby and (y) appointing Xxxxxxx X.
Xxxxx to the Board Directors of the Company effective immediately after the
Closing;
(d) a certificate, executed by an officer of the Company, certifying
(i) that there has been no event or occurrence that has had a material adverse
effect on the Company's business, properties, prospects or financial condition
("Material Adverse Effect"), (ii) either (A) that no Dilutive Issuance (as
defined in the Side Agreement, which is defined below) has
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occurred since the date of this Agreement, or (B) if there has been a Dilutive
Issuance during such period, the number of additional shares to be issued to
Xxxx Canada at the Closing as a result of such Dilutive Issuance and how such
number of additional shares was determined, and (iii) that, as of the Closing,
the Purchased Shares are not subject to any preemptive rights under the
Stockholders Agreement (as defined below);
(e) the joinder agreement, attached as Exhibit A hereto (the "SA
Joinder Agreement"), to that certain Amended and Restated Stockholders
Agreement, dated as of March 16, 2004, between Clearwire and its stockholders
(the "Stockholders Agreement"), executed by Clearwire;
(f) the joinder agreement, attached as Exhibit B hereto (the "RRA
Joinder Agreement"), to that certain Registration Rights Agreement between
Clearwire and certain of its stockholders, dated March 16, 2004 (the
"Registration Rights Agreement"), executed by Clearwire;
(g) the Side Agreement, attached as Exhibit C hereto (the "Side
Agreement"), dated as of the date of Closing, by and among Xxxx Canada,
Clearwire and Eagle River Holdings, LLC, a Washington limited liability company
("ERH"), executed by Clearwire and ERH;
(h) the Master Supply Agreement, attached as Exhibit D hereto (the
"Master Agreement" and collectively with this Agreement, the Stockholders
Agreement, the SA Joinder Agreement, the Registration Rights Agreement, the RRA
Joinder Agreement and the Side Agreement, the "Transaction Agreements"), dated
as of the date of Closing, by and between Xxxx Canada, BCE Nexxia Corporation,
Clearwire and Clearwire, LLC, executed by Clearwire and Clearwire, LLC; and
(i) a legal opinion of Xxxxx Xxxxxx Xxxxxxxx LLP in the form
attached hereto as Exhibit E.
6. XXXX CANADA CLOSING DELIVERIES. At the Closing, Xxxx Canada shall
deliver to Clearwire the following documents:
(a) the Purchase Price in accordance with Section 3;
(b) the Transaction Agreements, each executed by Xxxx Canada;
(c) the Master Agreement executed by Xxxx Canada and BCE Nexxia
Corporation; and
(d) a certificate, executed by an officer of Xxxx Canada certifying
that the representations and warranties of Xxxx Canada contained in Section 7
are true and correct in all material respects as of the Closing.
7. REPRESENTATIONS AND WARRANTIES OF XXXX CANADA. Xxxx Canada represents
and warrants to the Company that the following statements are true and correct
on the date of this Agreement:
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(a) Xxxx Canada is an "accredited investor" as that term is defined
in Rule 501 of Regulation D promulgated under the Securities Act of 1933, as
amended (the "Securities Act"). Xxxx Canada is not a "U.S. person" as that term
is defined under Rule 902 of Regulation S promulgated under the Securities Act.
Xxxx Canada is not acquiring the Securities for the account or benefit of any
U.S. person.
(b) The Purchased Shares subscribed for (the "Securities'") are
being acquired by Xxxx Canada for investment purposes only, for Xxxx Canada's
own account and not with the view to any resale or distribution thereof, and
Xxxx Canada is not participating, directly or indirectly, in an underwriting of
such Securities, and will not take, or cause to be taken, any action that would
cause Xxxx Canada to be deemed an "underwriter" of such Securities as defined in
Section 2(11) of the Securities Act.
(c) Xxxx Canada acknowledges that Xxxx Canada has been offered an
opportunity to ask questions of, and received answers from, Clearwire concerning
the Company and its proposed investments, and that, to Xxxx Canada's knowledge,
the Company has fully complied with any request for such information.
(d) Xxxx Canada has been furnished Clearwire's Disclosure
Memorandum, dated March 4, 2005 (the "Disclosure Memorandum"), the exhibits
thereto and any other documents which may have been made available upon request
(collectively, the "Offering Documents"). Xxxx Canada has carefully read the
Offering Documents and understands and has evaluated the risks of a purchase of
the Securities, including the risks set forth in the Offering Documents under
"Risk Factors".
(e) Xxxx Canada has such knowledge and experience in financial and
business matters as to be capable of evaluating the merits and risks of an
investment in the Securities, is able to bear such risks, and has obtained, in
Xxxx Canada's judgment, sufficient information from the Company to evaluate the
merits and risks of an investment in the Securities. Xxxx Canada has evaluated
the risks of investing in the Company and has determined that the Securities are
a suitable investment for Xxxx Canada.
(f) Xxxx Canada has full power and authority to enter into this
Agreement and to perform its obligations hereunder.
(g) Neither the Company nor any person acting on the Company's
behalf has offered, offered to sell, offered for sale or sold the Purchased
Shares to Xxxx Canada by means of any form of general solicitation or general
advertising.
(h) The execution, delivery and performance by Xxxx Canada of this
Agreement and the other Transaction Agreements are within Xxxx Canada's powers,
have been duly authorized, will not constitute or result in a breach or default
under or conflict with any order, ruling or regulation of any court or other
tribunal or of any governmental commission or agency, or any agreement or other
undertaking, to which Xxxx Canada is a party or by which Xxxx Canada is bound,
and will not violate any provisions of the incorporation papers, bylaws, or
stockholders agreement, as may be applicable, of Xxxx Canada. The signature of
Xxxx Canada on the Transaction Agreements is genuine, and the Transaction
Agreements constitute legal, valid and binding obligations of Xxxx Canada,
enforceable in accordance with their terms.
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(i) Xxxx Canada is not relying on the Company with respect to tax
and other economic considerations involved in this transaction. Xxxx Canada
acknowledges that Xxxx Canada has been advised by the Company to consult with
its tax or financial consultants prior to entering into this Agreement.
(j) This Agreement has been executed by Xxxx Canada outside the
"United States" (as defined in Rule 902(1) of Regulation S). Xxxx Canada is
acquiring the Securities in an "offshore transaction" (as defined in Rule 902(h)
of Regulation S). The Securities were not offered to Xxxx Canada in the United
States and at the time of execution of this Agreement and the time of any offer
to Xxxx Canada to purchase the Securities hereunder, Xxxx Canada was physically
outside of the United States.
8. REPRESENTATIONS AND WARRANTIES OF CLEARWIRE. Clearwire represents and
warrants to Xxxx Canada that, except as set forth on the Schedules attached to
this Agreement, each of which shall be deemed to be an exception to or exclusion
from only the particular representation and warranty against which it is listed
(unless it is readily apparent from a reading of the disclosure that such
disclosure is applicable to other representations and warranties), whether or
not the listed representation and warranty includes a reference to such
Schedule, and which exceptions (and all other disclosures) set forth in the
Schedules shall be deemed to be representations and warranties of Clearwire, the
following statements are true and correct on the date of this Agreement. Any
reference to the knowledge of any person shall mean the actual knowledge,
information and belief of such person after making reasonable inquiry of such
person's Chief Executive Officer, Chief Operating Officer and each Executive
Vice President. For each of these executives, reasonable inquiry shall mean
checking with their direct reports. In addition, for purposes of these
representations and warranties, the term "the Company" shall include any entity
in which Clearwire owns more than 50% of the outstanding equity interests and
which has assets of $10,000,000 or more as of the date hereof, including,
without limitation, the following: NextNet Wireless, Inc.; Clearwire
International LLC; Clearwire, LLC; Clearwire Technologies Inc. and Fixed
Wireless Holdings, LLC (the "Subsidiaries"). The term "Clearwire" shall mean
Clearwire Corporation (excluding its Subsidiaries).
(a) The execution, delivery and performance by Clearwire of this
Agreement and the other Transaction Agreements are within Clearwire's powers,
have been duly authorized, will not constitute or result in a breach or default
or conflict with any order, ruling or regulation of any court or other tribunal
or of any governmental commission or agency, or any agreement or other
undertaking, to which Clearwire is a party or by which Clearwire is bound, and
will not violate any provisions of the Certificate of Incorporation, Bylaws, or
Stockholders Agreement of Clearwire. The signature of Clearwire on the
Transaction Agreements is genuine, and the Transaction Agreements constitute
legal, valid and binding obligations of Clearwire, enforceable in accordance
with their terms.
(b) The Company is duly incorporated or organized, as applicable,
and validly existing under the laws of the jurisdiction of its incorporation or
formation, as applicable, and is in good standing under such laws. The Company
is duly qualified to transact business and is in good standing in each
jurisdiction in which the failure to so qualify would have a Material Adverse
Effect. The Company has full power and authority:
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(i) to own its properties and assets;
(ii) to carry on its business as presently conducted; and
(iii) to enter into the Transaction Agreements and to perform
its obligations thereunder, including the issuance, sale
and delivery of the Purchased Shares.
(c) Copies of all Board of Directors and stockholder meeting minutes
and consent actions of Clearwire have been made available to Xxxx Canada. These
copies are true and complete copies of all resolutions evidencing actions taken
by the Board of Directors and stockholders of Clearwire since its date of
incorporation.
(d) Clearwire does not own or control, directly or indirectly, any
Subsidiaries other than those listed in Schedule 8(d) attached hereto, and the
shares of the capital stock or membership interests, as applicable, of these
Subsidiaries owned by Clearwire are duly authorized, validly issued, fully paid,
and non-assessable, and free and clear of all liens, charges, claims and
encumbrances imposed by or through such Subsidiaries.
(e) The authorized capital stock of Clearwire and the shares of
capital stock of Clearwire issued and outstanding are as set forth on Schedule
8(e) attached hereto. All of the outstanding shares of the capital stock of
Clearwire are duly authorized, validly issued, fully paid, and non-assessable,
and free and clear of all liens, charges, claims and encumbrances imposed by or
through Clearwire. The Purchased Shares, when issued, sold and delivered in
accordance with the terms and for the consideration set forth in this Agreement,
will be duly authorized, validly issued, fully paid, and non-assessable, and
free and clear of all liens, charges, claims and encumbrances imposed by or
through Clearwire. Additionally, the Purchased Shares are free of restrictions
on transfer other than restrictions on transfer under this Agreement, the
Stockholders Agreement and the Side Agreement and under applicable state and
federal securities laws. The outstanding securities of Clearwire are owned by
the stockholders, optionholders and securityholders and in the numbers specified
in Schedule 8(e) attached hereto.
(f) Other than as disclosed in Schedule 8(f) attached hereto, the
Company does not have, is not bound by, and has no obligation to grant or enter
into, any outstanding subscriptions, options, warrants, rights (including
without limitation conversion or preemptive rights), calls, commitments, or
agreements of any character calling for it to issue, deliver, or sell, or cause
to be issued, delivered, or sold, any shares or any other equity securities or
equity securities convertible into, exchangeable for, or representing the right
to subscribe for, purchase, or otherwise acquire any shares or any other equity
securities in the capital of the Company. Other than the Stockholders Agreement
and the Side Agreement and as disclosed in Schedule 8(f), the Company is not a
party or subject to any agreement or understanding, and, to the Company's
knowledge, there is no agreement or understanding between any persons and/or
entities, which affects or relates to the voting or giving of written consents
with respect to any security or by a director of the Company.
(g) Other than as disclosed in Schedule 8(g) attached hereto, the
Company:
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(i) has no outstanding obligations, contractual or
otherwise, to repurchase, redeem, or otherwise acquire
any shares or other equity securities in the capital of
the Company; and
(ii) is not a party to or bound by any agreement or
instrument under which any person has the right to
require it to effect, or to include any securities held
by such person in, any registration under any securities
legislation or to distribute any such securities to the
public.
(h) All of the outstanding shares of capital stock of Clearwire were
offered, issued, and sold in compliance in all material respects with all
applicable federal and state securities laws. Assuming the accuracy of the
representations of Xxxx Canada in Section 7, upon the closing of the
transactions contemplated hereby, the Purchased Shares will have been offered,
issued and sold in compliance with all applicable federal, state and provincial
securities laws.
(i) Except(i) as disclosed in Schedule 8(i) attached hereto, and
(ii) for filings required under the HSR Act, no consent, approval,
authorization, declaration, filing, or registration with any governmental
authority, regulatory authority or other party is required to be made or
obtained by Clearwire in connection with:
(i) the execution and delivery of any of the Transaction
Agreements; or
(ii) the performance by the Company of its obligations under
the Transaction Agreements.
(j) The Company owns its property and assets, including without
limitation the property and assets reflected in the unaudited balance sheet of
Clearwire dated September 30, 2004, free and clear of all mortgages, liens,
licenses, security interests and other encumbrances, except such encumbrances
and liens that arise in the ordinary course of business and do not materially
impair the Company's ownership or use of such property or assets. With respect
to the property and assets it leases (including without limitation BRS and EBS
spectrum), the Company is in compliance with such leases and, to its knowledge,
holds a valid leasehold interest free of any liens, claims or encumbrances other
than those of the lessors of such property or assets, except with respect to
leases which the termination of or loss of rights under would, in the aggregate,
not have a Material Adverse Effect.
(k) To the Company's knowledge, the Company has timely filed all
returns, declarations, reports, and information statements ("Returns") required
to be filed in respect of any and all material Taxes (as defined below). Such
Returns are true, correct, and complete in all material respects. The Company
has paid all material Taxes due and payable on a timely basis, whether or not
shown on such Returns, except those material Taxes contested by the Company in
good faith that are listed in Schedule 8(k) attached hereto. The provision for
Taxes of the Company as shown in the Financial Statements (as defined below) is
adequate for material Taxes due or accrued as of the date of the Financial
Statements. The Company has not elected
Page 6 - SUBSCRIPTION AGREEMENT
pursuant to section 1362(a) of the Internal Revenue Code of 1986, as amended
(the "Code"), to be treated as an S corporation, and the Company has not made
any other elections pursuant to the Code (other than elections that relate
solely to methods of accounting, depreciation, or amortization) that would have
a material effect on the Company, its financial condition, its business as
presently conducted or as proposed to be conducted, or any of its properties or
material assets. None of the Company's Returns has ever been audited by any
applicable governmental authority, and there is no current audit, action, suit,
proceeding, or deficiency proposed or assessed against the Company with respect
to material Taxes. The Company has not executed any waiver of any statute of
limitations on the assessment or collection of any material Taxes. Since the
date of the Financial Statements, the Company has not incurred any material
Taxes other than in the ordinary course of business, and the Company has made
adequate provisions on its books of account for all material Taxes with respect
to its business, properties and operations for such period. There are no liens
for material Taxes upon any of the assets of the Company, except liens for
material Taxes not yet due and payable. The Company has withheld and collected
all material Taxes required to be withheld or collected under the Code or other
applicable law, and has paid such material Taxes to the proper governmental
authority, all on a timely basis. Pursuant to section 1.897-2(h)(1)(i) of the
Treasury Regulations, the Company represents under penalty of perjury that the
Purchased Shares are not a "United States real property interest," as defined in
section 897(c) of the Code, and the Company has filed or will timely file with
the Internal Revenue Service all statements that are required to be filed under
section 1.897-2(h) of the Treasury Regulations. For purposes of this Agreement,
the term "Taxes" means all charges, fees, levies, or other assessments,
including, without limitation, all net income, gross income, gross receipts,
sales, use, ad valorem, transfer, franchise, profits, license, withholding,
payroll, employment, social security, unemployment, excise, estimated,
severance, stamp, occupation, property, or other taxes, together with all
interest and penalties on such taxes.
(l) Except as disclosed in Schedule 8(1) attached hereto, no
litigation, arbitration, action, suit, proceeding, or investigation (whether
conducted by or before any judicial or regulatory body, arbitrator, or other
person) is pending or, to the knowledge of the Company, currently threatened or
contemplated, against the Company, nor is there any basis therefore known to the
Company that would reasonably be expected to have individually or in the
aggregate a Material Adverse Effect. The Company is not a party or subject to
the provisions of any order, writ, injunction, judgment or decree of any court
or government agency or instrumentality. There is no action, suit, proceeding or
investigation by the Company currently pending or that the Company currently
intends to initiate.
(m) Except as set forth on Schedule 8(m) attached hereto, there are
no agreements, understandings or proposed actions between the Company and any of
its officers, directors, stockholders, affiliates, or any affiliate thereof.
Except as set forth on Schedule 8(m) attached hereto, there are no binding
agreements, instruments or contracts to which the Company is a party or by which
it is bound that may involve (i) obligations (contingent or otherwise) of, or
payments to the Company in excess of, $1,000,000, (ii) the acquisition, lease,
sublease, license, transfer or assignment of BRS or EBS spectrum, (iii) the
license of any patent, copyright, trade secret or other proprietary right to or
from the Company, other than standard end-user object code license agreements,
or (iv) provisions that in the aggregate materially restrict or affect the
development, manufacture or distribution of the Company's products or services.
Except as set
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forth on Schedule 8(m) attached hereto, the Company has not (W) declared or paid
any dividends or authorized or made any distribution upon or with respect to any
class or series of its capital stock, (X) incurred any indebtedness for money
borrowed or any other liabilities individually in excess of $1,000,000 or, in
the case of indebtedness and/or liabilities individually less than $1,000,000,
in excess of $2,000,000 in the aggregate, (Y) made any loans or advances to any
person, other than ordinary advances for travel or other out-of-pocket expenses,
or (Z) sold, exchanged or otherwise disposed of any of its material assets or
rights, other than the sale of its inventory in the ordinary course of business.
For the purposes of this Section 8(m), all indebtedness, liabilities, binding
agreements, instruments and contracts involving the same person or entity
(including persons or entities the Company has reason to believe are affiliated
therewith) shall be aggregated for the purpose of meeting the individual minimum
dollar amounts of this Section 8(m). Each agreement, instrument, contract,
judgment, order, writ and decree set forth on Schedule 8(m) attached hereto to
which Clearwire is a party is a valid, binding and enforceable obligation of the
Company, and to the knowledge of the Company, of the other party or parties
thereto, and is in full force and effect. To the knowledge of the Company, each
agreement, instrument, contract, judgment, order, writ and decree set forth on
Schedule 8(m) attached hereto to which each of the Subsidiaries is a party is a
valid, binding and enforceable obligation of such Subsidiary and of the other
party or parties thereto, and is in full force and effect. Neither the Company,
nor to the knowledge of the Company, any other party thereto, is, or is
considered by any other party thereto to be, in breach of or non-compliance with
any term of any agreement, instrument, contract, judgment, order, writ and
decree set forth on Schedule 8(m) attached hereto (nor, to the knowledge of the
Company, is there any basis for any of the foregoing) that could result in the
termination of such agreement, instrument or contract or in a Material Adverse
Effect.
(n) Except as disclosed in Schedule 8(n) attached hereto, no
employee, officer, director or stockholder of the Company or member of his or
her immediate family is indebted to the Company, nor is the Company indebted (or
committed to make loans or extend or guarantee credit) to any of them, other
than in connection with expenses or advances of expenses incurred in the
ordinary course of business or employee relocation expenses.
(o) None of this Agreement (including and as qualified by all
exhibits and schedules hereto), the Disclosure Memorandum (including all
exhibits and schedules thereto), the Transaction Agreements or any other written
statements or certificates made directly by the Company in connection herewith
contains any untrue statement of a material fact or omits to state a material
fact necessary to make the statements herein or therein not misleading in light
of the circumstances under which they were made.
(p) To the knowledge of the Company, the Company has sufficient
title and ownership of all patents, patent applications, trademarks, service
marks, trade names, copyrights, trade secrets, information, proprietary rights
and processes necessary for its business as now conducted, without any conflict
with or infringement of the rights of others. To the knowledge of the Company,
the Company is not in violation of, or by conducting its business as presently
or proposed to be conducted, would violate, any technology licenses to which the
Company is a party to, including without limitation, any software licenses or
open source licenses. Schedule 8(p) attached hereto contains a complete list of
all patents, pending patent applications, trademarks and pending trademark
applications of the Company. Except as set forth on
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Schedule 8(p) attached hereto, the Company owns all of such patents, pending
patent applications, trademarks and pending trademark applications free and
clear of all mortgages, liens, licenses, security interests and other
encumbrances. To the knowledge of the Company, the Company is not in violation
of or, by conducting its business as presently or proposed to be conducted,
would violate any of the patents, trademarks, service marks, trade names,
copyrights or trade secrets or other proprietary rights of any other person or
entity.
(q) To the knowledge of the Company, the wireless broadband services
offered by the Company have not experienced (i) any failures related to the
continuous provision of service, (ii) any breaches of security or (iii) any
instances of hacking, in each instance that have had a Material Adverse Effect.
Further, the Company has no knowledge of (a) any likely failures related to the
continuous provision of service, (ii) any likely source of security breach, or
(iii) any likely source of vulnerability for hacking, in each instance that
could have a Material Adverse Effect.
(r) The Company has delivered to Xxxx Canada its audited financial
statements (balance sheet and income statement, statement of shareholders'
equity and statement of cash flows) as of December 31, 2003 and for the fiscal
year then ended and unaudited financial statements (balance sheet and income
statement) as of September 30, 2004 and for the nine months then ended (the
"Financial Statements"). The Financial Statements (i) are in accordance with the
books and records of the Company (which are true and complete in all material
respects), and (ii) have been prepared in accordance with generally accepted
accounting principles applied on a consistent basis throughout the periods
indicated, except that the unaudited Financial Statements do not contain all
footnotes and other disclosures required by generally accepted accounting
principles. The Financial Statements fairly present in all material respects the
financial condition and operating results of the Company as of the dates, and
for the periods, indicated therein, subject to normal audit adjustments with
respect to the September 30, 2004 Financial Statements. Except as set forth in
the Financial Statements or on Schedules 8(s) or 8(u), the Company has no
material liabilities, contingent or otherwise, other than (i) liabilities
incurred in the ordinary course of business subsequent to September 30, 2004,
and (ii) obligations under contracts and commitments incurred in the ordinary
course of business and not required under generally accepted accounting
principles to be reflected in the Financial Statements, which, in both cases,
individually or in the aggregate, are not material to the financial condition or
operating results of the Company.
(s) Schedule 8(s) attached hereto identifies all material
outstanding loans, debts, notes, mortgages, indentures, security agreements,
commitments and other obligations of the Company individually in excess of
$1,000,000 or, in the case of such obligations individually less than
$1,000,000, in excess of in the aggregate $2,000,000 (collectively, the
"Obligations"). To the Company's knowledge, except as disclosed in Schedule 8(s)
attached hereto, the Company is not in default under (and has not received any
notice that it has breached or committed any material default under) any of the
Obligations, and no event or condition has occurred which, with the lapse of
time or the giving of notice, or both, would constitute such a default.
(t) To the knowledge of the Company, the Company has all franchises,
permits, licenses, and any similar authority necessary for the conduct of its
business as now
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being conducted by it, and the Company believes it can obtain, without undue
burden or expense, any similar authority for the conduct of its business as
planned to be conducted. To the knowledge of the Company, the Company is not in
default in any respect under any of such franchises, permits, licenses or other
similar authority.
(u) Except as set forth on Schedule 8(u) attached hereto, since
September 30, 2004 there has not been:
(i) any material change in the assets, liabilities,
financial condition or operating results of the Company
from that reflected in the Financial Statements that has
had a Material Adverse Effect;
(ii) any damage, destruction or loss, whether or not covered
by insurance, that has had or is expected to have a
Material Adverse Effect;
(iii) any waiver, compromise or default by the Company of a
valuable right or of a material debt or obligation owed
to it;
(iv) any satisfaction or discharge of any lien, claim or
encumbrance or payment of any obligation by the Company,
except in the ordinary course of business and that is
not material to the assets, properties, financial
condition, operating results or business of the Company;
(v) any transfer of or granting of any security interest in
any material asset of the Company; or
(vi) any material agreement or commitment by the Company to
do any of the things described in this Section 8(u).
(v) To the Company's knowledge, the Company is not in violation of
any applicable statute, law or regulation relating to the environment or
occupational health and safety, and no material expenditures are or will be
required in order to comply with any such existing statute, law or regulation.
During the period that the Company has owned, licensed or leased its properties
and facilities, (a) there have been no disposals, releases or threatened
releases of Hazardous Materials (as defined below) from such properties or
facilities, (b) neither the Company nor, to the Company's knowledge, any third
party, has used, generated, manufactured or stored on, under or about such
properties or facilities or transported to or from such properties or facilities
any Hazardous Materials. The Company has no knowledge of any presence, disposals
on, or releases or threatened releases of Hazardous Materials from, or under any
of such properties or facilities, which may have occurred prior to the Company
having taken possession of any of such properties or facilities. For the
purposes of this Section 8(s), the terms "disposal," "release," and "threatened
release" shall have the definitions assigned thereto by the Comprehensive
Environmental Response, Compensation and Liability Act of 1980. 42 U.S.C.
Section 9601 et seq., as amended ("CERCLA"). For the purposes of this Section
8(s), "Hazardous Materials" shall mean any hazardous or toxic substance,
material or waste which is regulated under, or defined as a "hazardous
substance," "pollutant," "contaminant," "toxic chemical," "hazardous material,"
"toxic substance," or "hazardous chemical" under
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(i) CERCLA; (ii) the Emergency Planning and Community Right-to-Know Act, 42
U.S.C. Section 11001 et seq.; (iii) the Hazardous Materials Transportation Act,
49 U.S.C. Section 5101, et seq.; (iv) the Toxic Substances Control Act, 15
U.S.C. Section 2601 et seq.; (v) the Occupational Safety and Health Act of 1970,
29 U.S.C. Section 651 et seq.; (vi) regulations promulgated under any of the
above statutes; or (vii) any applicable state or local statute, ordinance, rule,
or regulation that has a scope or purpose similar to those statutes identified
above.
(w) Except as disclosed in Schedule 8(w) attached hereto and for
rights granted under the Registration Rights Agreement, the Company has not
granted or agreed to grant any registration rights, including without limitation
any piggyback or demand rights, to any person or entity.
(x) Except as set forth in Schedule 8(x) attached hereto, the
Company is not bound by or subject to (and none of its assets or properties is
bound by or subject to) any written or oral, express or implied, contract,
commitment or arrangement with any labor union, and no labor union has requested
or, to the Company's knowledge, has sought to represent any of the employees,
representatives or agents of the Company. There is no strike or other labor
dispute involving the Company pending, or to the Company's knowledge,
threatened, nor is the Company aware of any labor organization activity
involving its employees. To the Company's knowledge, the Company has complied in
all material respects with all applicable state and federal equal employment
opportunity and other laws related to employment.
(y) Except as disclosed in Schedule 8(y) attached hereto, the
Company is not party to or bound by any currently effective employment or
consultancy contracts involving payments by the Company in excess of $350,000
per annum, excluding discretionary bonuses, deferred compensation agreements,
bonus plans, incentive plans, profit sharing plans, retirement agreements or
plans, pension plans or other employee compensation arrangements. Except as
disclosed in Schedule 8(y) attached hereto, and subject to general principles
related to wrongful termination of employees, the employment of each officer and
employee of the Company is terminable at the will of the Company.
(z) Except as disclosed in Schedule 8(z) attached hereto, each
current officer, employee and consultant of the Company and, to the Company's
knowledge, each former officer, employee and consultant that contributed to the
intellectual property currently being used by the Company has executed in the
Company's favor a standard agreement regarding confidentiality and proprietary
information used by the Company and assignment of intellectual property rights
in favour of the Company. To the Company's knowledge, none of its current or
former employees, officers and consultants is in violation thereof. No such
person has excluded works or intellectual property rights made prior to his or
her employment or other contractual relationship with the Company from his or
her assignment of inventions pursuant to such agreement. Subject to any
limitations on such vesting imposed by applicable law, full title and ownership
of all inventions and proprietary rights, processes or methods developed or
invented by any and all employees and consultants during the period of their
employment and/or consultancy and resulting directly or indirectly from their
work for the Company vest in the Company pursuant to each such agreement. The
Company does not believe it is or will be
Page 11 - SUBSCRIPTION AGREEMENT
necessary to utilize any inventions of any of its employees (or people it
currently intends to hire) made prior to or outside the scope of their
employment by the Company.
(aa) The Company holds the Federal Communications Commission ("FCC")
licenses, permits and authorizations set forth on Schedule 8(aa) attached hereto
(the "FCC Authorizations").
(bb) To the Company's knowledge, except as set forth on Schedule
8(bb), the FCC Authorizations are in full force and effect and have not been
revoked, suspended, cancelled, rescinded or terminated and have not expired,
except where renewal applications are currently pending. To the Company's
knowledge, there is not pending or threatened any action by or before the FCC to
revoke, suspend, cancel, rescind or modify any of the FCC Authorizations (other
than proceedings to amend FCC rules of general applicability), and there is not
now issued or outstanding or pending or threatened, by or before the FCC, any
order to show cause, notice of violation, notice of apparent liability, or
notice of forfeiture or complaint against the Company or any of its subsidiaries
or any System. Neither the Company nor any of its subsidiaries is aware of any
facts and has received no notice or communication, formal or informal,
indicating that the FCC is considering revoking, suspending, cancelling,
rescinding or terminating any FCC Authorization.
(cc) To the Company's knowledge, all material reports and filings
required to be filed by the Company with the FCC have been timely filed, and all
such reports and filings are accurate and complete. To the Company's knowledge,
all regulatory fees required to be paid by the Company to the FCC have been
timely filed and paid.
(dd) The Systems include wireless systems operating in whole or in
part on BRS, EBS, or other spectrum licensed by the FCC to third parties (each a
"Lessor") and used or leased by the Company under certain spectrum leases,
capacity use agreements or other similar arrangements between the Company (or
subsidiaries of the Company) and the Lessors (each a "Spectrum Lease"). Except
for Spectrum Leases grandfathered under the Commission's rules, Clearwire
believes each Spectrum Lease complies with the FCC's rules, including but not
limited to Sections 1.9020 and 1.9030, and otherwise complies with the
Communications Laws. Except for Spectrum Leases grandfathered under the
Commission's rules, Clearwire believes each Spectrum Lease constitutes either a
"manager" lease (each a "Manager Lease") or a "de facto transfer" Lease (each a
"Transfer Lease") as described in the FCC's rules.
(ee) To the extent required under the FCC's rules and except for
Spectrum Leases grandfathered under the FCC's rules, the Company (or its
applicable subsidiary) has timely filed each Manager Lease with the FCC. To the
extent required under the FCC's rules and except for Spectrum Leases
grandfathered under the FCC's rules, the Company (or its applicable subsidiary)
has filed for and is awaiting (and the FCC Authorizations will include) FCC
consent to each Transfer Lease. To the knowledge of the Company, (i) each Lessor
holds all FCC licenses, permits and authorizations (the "Lessor Licenses")
necessary to operate the License that is subject to the Spectrum Lease to which
it is a party, (ii) the representations and warranties set forth in Section
8(bb) are true and correct with respect to the Lessor Licenses, and the
representations and warranties set form in Section 8(cc) are true and correct
with respect to the Lessors, and (iii) the representations and warranties made
by the Lessors under the Spectrum
Page 12 - SUBSCRIPTION AGREEMENT
Leases are true and correct. Each Spectrum Lease is set forth on Schedule 8(ee)
and identified as a grandfathered Lease, a Manager Lease or a Transfer Lease.
9. RESTRICTED SECURITIES. Xxxx Canada understands that the Securities have
not been, and will not be, registered under the Securities Act, by reason of a
specific exemption from the registration provisions of the Securities Act which
depends upon, among other things, the bona fide nature of the investment intent
and the accuracy of Xxxx Canada's representations as expressed herein. Xxxx
Canada understands that the Securities are "restricted securities" under
applicable U.S. federal and state securities laws, and Xxxx Canada agrees not to
transfer the Securities unless the transfer of the Securities is made (i) in
accordance with the provisions of Regulation S under the Securities Act, (ii)
pursuant to an effective registration under the Securities Act and qualification
under any applicable state securities laws, or (iii) pursuant to an available
exemption from such registration and qualification requirements. Xxxx Canada
further agrees not to engage in hedging transactions with regard to the
Securities unless in compliance with the Securities Act. Xxxx Canada
acknowledges that the Company has no obligation to register or qualify the
Securities for resale except as set forth in the Registration Rights Agreement
and that the Company is required to refuse to register any transfer not made in
accordance with the provisions of this Section 9. Xxxx Canada further
acknowledges that if an exemption from registration or qualification is
available, it may be conditioned on various requirements including, but not
limited to, the time and manner of sale, the holding period for the Securities,
and on requirements relating to the Company which are outside of Xxxx Canada's
control, and which the Company is under no obligation and may not be able to
satisfy. Xxxx Canada also acknowledges that the certificates representing the
Securities shall bear the restrictive legends required under applicable federal
and state securities laws and the Stockholders Agreement. The provisions of this
Section 9 shall survive the Closing.
10. STOCKHOLDERS AGREEMENT; SIDE AGREEMENT. Xxxx Canada and Clearwire
acknowledge and agree that the Purchased Shares shall be subject to all of the
terms of the Stockholders Agreement and the Side Agreement, including, among
other provisions, the restrictions on transfer and confidentiality obligations
set forth therein. Xxxx Canada and Clearwire also agree that, in the event of a
conflict, the terms set forth in this Agreement and in the Side Agreement will
prevail over the provisions set forth in the Stockholders Agreement. In the
event there is a conflict between this Agreement and the Side Agreement, the
Side Agreement will prevail. Xxxx Canada further agrees, on the date hereof, to
sign the SA Joinder Agreement and to become bound by the terms and conditions of
the Stockholders Agreement. The provisions of this Section 10 shall survive the
Closing.
11. REGISTRATION RIGHTS AGREEMENT. At the Closing, Xxxx Canada shall
become a party to the Registration Rights Agreement, by executing the RRA
Joinder Agreement.
12. SIDE AGREEMENT AND MASTER AGREEMENT. At the Closing, Xxxx Canada and
Clearwire shall enter into the Side Agreement and the Master Agreement.
13. SURVIVAL OF WARRANTIES. Except as otherwise provided herein, the
warranties, representations and covenants of the Company and Xxxx Canada
contained in or made pursuant to this Agreement shall survive the execution and
delivery of this Agreement and the Closing for a period of one (1) year
following the Closing. Notwithstanding the foregoing, nothing in this
PAGE 13 - SUBSCRIPTION AGREEMENT
Section 13 shall be construed to extend the representations, warranties and
covenants contained herein beyond the period set forth in the applicable statute
of limitations.
14. INDEMNITY. Xxxx Canada and Clearwire will indemnify and hold each
other, as well as their respective officers, directors, stockholders, agents,
attorneys and affiliates (the "Indemnified Parties") harmless from and against,
and will reimburse the Indemnified Parties for, any and all losses, damages,
debts, liabilities, obligations, judgments, orders, awards, writs, injunctions,
decrees, fines, penalties, taxes, costs or expenses (including but not limited
to any legal and accounting fees and expenses) ("Losses") arising out of or
based upon any false representation or warranty or breach or failure by Xxxx
Canada or Clearwire, as the case may be, to comply with any covenant or
agreement made by Xxxx Canada or Clearwire, as the case may be, in this
Agreement or in any other document furnished by Xxxx Canada or Clearwire, as the
case may be, to the other in connection with this Agreement (excluding the other
Transaction Agreements).
15. REQUIRED FILINGS; COOPERATION. As promptly as practicable but in no
event more than five (5) days after the date of this Agreement, each of
Clearwire and Xxxx Canada will make all filings required to be made by them in
order to complete the transactions contemplated under this Agreement (including
all filings under the HSR Act). Between the date of this Agreement and the
Closing, each party will (a) cooperate with the other party with respect to all
filings that such other party elects to make or is required by applicable laws
to make in connection with the transactions contemplated under this Agreement,
and (b) cooperate with the other party, including taking all actions reasonably
requested by such other party, to cause early termination of any applicable
waiting period under the HSR Act.
16. REVOCABILITY. Xxxx Canada and Clearwire understand and agree that
neither party may cancel, terminate, or revoke this Agreement.
17. NOTICE. Any notices or other communications in connection herewith
shall be sufficiently given if sent by registered or certified mail, postage
prepaid, or by facsimile transmission, and:
(i) if to the Company, at
Clearwire Corporation
0000 Xxxx Xxxxxxxxxx Xxxx. XX, Xxxxx 000
Xxxxxxxx,XX 00000
Facsimile No: 000-000-0000
Attn: Vice President, Legal Affairs
With a copy to:
0000 Xxxxxxxx Xxxxx
Xxxxxxxx, XX 00000
Facsimile No: 000-000-0000
Attn: Xxxxxxxx X. Xxxxx, Executive Vice President, Global Corporate
Development
Page 14 - SUBSCRIPTION AGREEMENT
(ii) if to Xxxx Canada, at
Xxxx Canada
0000, Xx Xx Xxxxxxxxxxx Xxxx,
Xxxxx 0000
Xxxxxxxx, Xxxxxx
X0X0X0
Facsimile No: 000-000-0000
Attn: Chief Legal Officer, Xxxx Canada
with copy by email to:
Xxxxx Xxxxxxx, Vice-President - Mergers & Acquisitions at:
xxxxx.xxxxxxx@xxxx.xx; and
- and to -
Xxxxxx Xxxxxxx, Vice-President-General Counsel at:
xxxxxx.xxxxxxx@xxxx.xx
or at such other address as either Xxxx Canada or the Company shall
designate to the other by notice in writing.
18. ASSIGNABILITY; SUCCESSORS AND ASSIGNS. Neither party may assign or
transfer any of its rights or obligations under this Agreement without the prior
written consent of the other party. The terms and conditions of this Agreement
shall inure to the benefit of and be binding upon the respective successors and
assigns of the parties. Nothing in this Agreement, express or implied, is
intended to confer upon any party, other than the parties hereto or their
respective successors and assigns, any rights, remedies, obligations or
liabilities under or by reason of this Agreement, except as expressly provided
in this Agreement.
19. MODIFICATION. Neither this Agreement nor any provision hereof shall be
modified, discharged or terminated except by an instrument in writing signed by
the party against whom any waiver, change, discharge or termination is sought.
20. ENTIRE AGREEMENT. This Agreement, the Transaction Agreements and the
documents referred to herein and therein constitute the entire agreement among
the parties with respect to the subject matter hereof and thereof and no party
shall be liable or bound to any other party in any manner by any warranties,
representations, covenants or agreements except as specifically set forth herein
or therein.
21. APPLICABLE LAW. This Agreement shall be governed by and construed in
accordance with the laws of the state of Delaware and, to the extent it involves
any United States statute, in accordance with the laws of the United States.
22. FINDERS' FEES. Except as provided otherwise in Schedule 22 attached
hereto, each party represents that it neither is nor will be obligated for any
finders' fees or commissions in connection with this Agreement or the
transactions contemplated hereby. Xxxx Canada agrees
Page 15 - SUBSCRIPTION AGREEMENT
to indemnify and to hold harmless the Company from any liability for any
commission or compensation in the nature of finders' fees (and the costs and
expenses (including legal, travel and out-of-pocket expenses) of defending
against such liability or asserted liability) for which Xxxx Canada or any of
its officers, directors, employees, or representatives is responsible. The
Company agrees to indemnify and hold harmless Xxxx Canada from any liability for
any commission or compensation in the nature of a finders' fee (and the costs
and expenses (including legal, travel and out-of-pocket expenses) of defending
against such liability or asserted liability) for which the Company or any of
its officers, employees or representatives is responsible.
23. SEVERABILITY. If one or more provisions of this Agreement are held to
be unenforceable under applicable law, such provision shall be excluded from
this Agreement and the balance of the Agreement shall be interpreted as if such
provision were so excluded and shall be enforceable in accordance with its
terms.
24. FEES AND EXPENSES. Except as otherwise expressly provided for in this
Agreement, the Company, on the one hand, and Xxxx Canada, on the other hand,
shall each pay all of its own expenses incurred in connection with the
transactions contemplated by this Agreement, including any and all legal,
accounting, investment banking and consulting fees and expenses incurred in
negotiating, executing and delivering this Agreement and the other agreements,
exhibits, schedules, documents and instruments contemplated by this Agreement.
Notwithstanding the foregoing, each of the Company and Xxxx Canada shall pay
one-half of the filing fees under the HSR Act related to the transactions
contemplated by this Agreement.
25. CURRENCY. All dollar amounts referred to in this Agreement, including
the symbol "$", refer to lawful money of the United States of America.
26. COUNTERPARTS. This Agreement may be executed in two (2) or more
original or facsimile counterparts all of which together shall constitute one
and the same instrument.
[Remainder of this page is intentionally left blank.]
Page 16 - SUBSCRIPTION AGREEMENT
The undersigned have duly executed this Agreement as of this 8th day of March,
2005.
SUBSCRIBER:
XXXX CANADA
By: /s/ Xxxxxxx Xxxxxxxx
------------------------------------
Title: Chief Legal Officer
CLEARWIRE CORPORATION
By: /s/ Xxx Xxxxx
------------------------------------
Title: Executive, Vice President
Page 17 - SUBSCRIPTION AGREEMENT
JOINDER IN STOCKHOLDERS AGREEMENT
This Joinder in Stockholders Agreement ("Joinder") is made and entered
into this 16 day of March, 2004, by and between Clearwire Corporation, a
Delaware corporation (the "Company"), and the party whose signature appears
below (the "Joining Party").
R E C I T A L S:
WHEREAS, the Joining Party has acquired or intends to acquire shares of capital
stock of the Company; and
WHEREAS, pursuant to Section 13.09 of that certain Amended and Restated
Stockholders Agreement, between the Company and its stockholders, dated as of
March 16, 2004 (the "Stockholders Agreement"), the Joining Party may become a
party to the Stockholders Agreement by execution of an instrument such as this
Joinder.
NOW, THEREFORE, the Joining Party agrees as follows:
1. JOINDER
By execution of this Joinder by the Joining Party and acceptance hereof by
the Company, the Joining Party is and agrees to become a party to, subject to
all the conditions, restrictions, obligations and duties of a Stockholder of the
Company under the Stockholders Agreement, including the restrictions on transfer
of the shares acquired from the Company and the requirement that the Joining
Party vote its shares in accordance with the terms thereof.
2. AGREEMENT TO BE BOUND BY AGREEMENT
This Joinder shall in all respects, including all matters of construction,
validity and performance, be governed by, and construed and enforced in
accordance with, the laws of the State of Delaware, without reference to any
rules governing conflicts of laws.
3. COUNTERPARTS
This Joinder may be executed in any number of counterparts, each of which
shall be an original, but all of which together shall constitute one instrument.
COMPANY:
By: /s/ Xxx Xxxxx
--------------------------------
Name: Xxx Xxxxx
--------------------------------
Title: Executive Vice President
--------------------------------
Date: March 16, 2005
--------------------------------
JOINING PARTY:
By: /s/ J. Xxxxxx Xxxxxxxx
--------------------------------
Name: J. Xxxxxx Xxxxxxxx
--------------------------------
Title: SVP Technology
--------------------------------
Date: March 15th, 2006
--------------------------------
1
JOINDER
In consideration of the permitted issuance, sale, pledge, or other
transfer to the undersigned of Registerable Securities in the Company, the
undersigned hereby consents and agrees to become a party to and be bound by the
Registration Rights Agreement dated as of the 16th day of March, 2004, as
amended, receipt of a copy of which is hereby acknowledged, as fully as if the
undersigned were one of its original parties, and all of the Registrable
Securities owned by the undersigned will be held in accordance with and
restricted by the terms of such Registration Rights Agreement.
Dated: March 15th 2005
Name of Stockholder: /s/ ILLEGIBLE
------------------------------------
Sign Name: /s/ J. Xxxxxx Xxxxxxxx
------------------------------------
Print Name: J. Xxxxxx Xxxxxxxx
------------------------------------
Address: Floor 6 10th
------------------------------------
000 Xxx Xxxxxx
------------------------------------
Xxxxxxx, Xxxxxxx XXX 0X0
------------------------------------
SSN/EIN:
------------------------------------
Approved by the Company:
COMPANY: CLEARWIRE CORPORATION
By: /s/ Xxx Xxxxx
-----------------------------
Name: Xxx Xxxxx
-----------------------------
Title: Executive Vice President
-----------------------------
Dated: March 16, 2005
-----------------------------
1
EXHIBIT C
(TO EX. 10.38)
FILED AS EXHIBIT 10.40
EXHIBIT D
(TO EX. 10.38)
FILED AS EXHIBIT 10.39
