EXHIBIT 10.2
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (the "Agreement") is made and entered
into as of _____________ _____, 1999 between NEXTLINK Communications, Inc., a
Delaware corporation (the "Company"), and Nextel Spectrum Acquisition Corp., a
Delaware corporation ("NSAC").
This Agreement is made in connection with the NEXTBAND Interests Purchase
Agreement, dated March __,1999 (the "Purchase Agreement") between the Company
and NSAC, pursuant to which NSAC may acquire Class A Common Stock of the
Company. The execution and delivery of this Agreement is a condition precedent
to the issuance of the Company's Class A Common Stock pursuant to the Purchase
Agreement.
Capitalized terms used herein without definition are used as defined in the
Purchase Agreement.
The parties hereby agree as follows:
1. CERTAIN DEFINITIONS.
As used in this Agreement, the following terms shall have the following
respective meanings:
(a) "AFFILIATE OF THE COMPANY" means any officer, director, or holder of
10% or more of any class of security issued by the Company, other than
a Holder.
(b) "BUSINESS DAY" means any day, other than a Saturday, Sunday or legal
holiday, on which banks in the State of New York are open for
business.
(c) "COMMISSION" means the Securities and Exchange Commission.
(d) "COMMON STOCK" means the Class A Common Stock, par value $.02 per
share, of the Company, as constituted on the date hereof, any shares
into which such Common Stock shall have been changed, or any shares
resulting from any reclassification of such Common Stock.
(e) "EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended,
or any successor statute thereto, and the rules and regulations of the
Commission promulgated thereunder, all as the same shall be in effect
at the time.
(f) "HOLDERS" means NSAC and any other person holding Registrable
Securities to whom these registration rights have been assigned
pursuant to Section 8(f) of this Agreement.
(g) "MERGER AGREEMENT" means the Merger Agreement, dated January 14, 1999,
between the Company and WNP Communications, Inc.
(h) "PERSON" shall mean an individual, partnership, corporation, limited
liability company, association, trust, joint venture, unincorporated
organization and any government, governmental department or agency or
political subdivision thereof.
(i) "REGISTRABLE SECURITIES" means (i) the Common Stock held by any
Holder; (ii) any Common Stock or other securities issued or issuable
pursuant to the conversion of, or with respect to, the Common Stock
held by any Holder upon any stock split, stock dividend,
recapitalization, or similar event; and (iii) securities issued in
replacement or exchange of any of the securities issued in clauses (i)
or (ii) above. A security shall cease to be a Registrable Security
when (A) such security has been disposed of by a Holder pursuant to
and in the manner described in an effective registration statement
under the Securities Act or (B) such security has been sold or
distributed by a Holder pursuant to Rule 144 under the Securities Act.
(j) "REGISTRATION EXPENSES" means all expenses incident to the Company's
performance of or compliance with this Agreement, including, without
limitation, all registration, filing, listing and National Association
of Securities Dealers, Inc. ("NASD") fees, all fees and expenses of
complying with securities or blue sky laws, all word processing,
duplicating and printing expenses, all messenger and delivery
expenses, any transfer taxes, the fees and expenses of the Company's
legal counsel and independent public accountants, including the
expenses of any special audits or "cold comfort" letters required by
or incident to such performance and compliance, fees and disbursements
of one counsel for all or a majority of the Holders, and any fees and
disbursements of underwriters customarily paid by issuers or sellers
of securities; provided, however, that Registration Expenses shall not
include underwriting discounts and commissions.
(k) "REQUISITE HOLDERS" means Holders holding Registrable Securities
having an aggregate Reference Value of no less than $20,000,000.
"Reference Value" means the value assigned to a share of Common Stock
for purposes of determining the number of shares delivered at the
Closing in accordance with Section 1.2 of the Purchase Agreement.
(l) "SECURITIES ACT" means the Securities Act of 1933, as amended, or any
successor statute thereto, and the rules and regulations of the
Commission promulgated thereunder, all as the same shall be in effect
at the time.
2. REGISTRATION.
(a) DEMAND REGISTRATION. At any time and from time totime (i) if the
Closing has occurred under the Merger Agreement on or prior to the
date hereof, after 180 days following the Closing Date under the
Merger Agreement and (ii) if the Closing under the Merger Agreement
has not occurred on or prior to the date hereof, after the date
hereof, upon written request by the Requisite Holders that the Company
effect the registration under the Securities Act of all or part of the
Registrable Securities (a "Demand Request"), the Company will use
reasonable best efforts to register the Registrable Securities which
the Company has been so requested to register by the Holders under the
Securities Act for resale by the Holders in an underwritten offering
(a "Demand Offering") pursuant to a registration statement (the
"Demand Registration Statement") that has been declared
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effective by the Commission, which registration statement shall be
kept effective by the Company until the earlier of such time as the
Demand Offering is completed or the expiration of 60 days following
the effectiveness of the Demand Registration Statement; provided that
the Company shall not be obligated to effect a Demand Offering that is
underwritten for Requisite Holders hereunder, but instead may effect a
Demand Offering by registering resale transactions involving a
non-underwritten distribution of Registrable Securities, if the
Registrable Securities sought to be included in such Demand Offering
by such Requisite Holders have an aggregate Reference Value of less
than $30,000,000. The Company will use reasonable best efforts to have
each Demand Registration Statement declared effective by the
Commission within ninety (90) days after receipt of such request or
within sixty (60) days after receipt of such request if the Company is
qualified to file a registration statement on Commission Form S-3, S-2
or any successor or similar short-form registration statement
(collectively, "Commission Form S-3"). Subject to subdivision (g), the
Company may include in such Demand Registration Statement and Demand
Offering other securities of the Company for sale, for the Company's
account or for the account of any other person. Upon receipt of a
Demand Request, the Company shall promptly give written notice of such
request to all Holders, and all Holders shall be afforded the
opportunity to participate in such request as follows: subject to
subdivision (f), the Company will include in each Demand Registration
Statement and Demand Offering such number of Registrable Securities of
any Holder joining in such request as are specified in a written
request by the Holder received by the Company within 20 days after
receipt of such written notice from the Company.
(b) INCIDENTAL REGISTRATION. For so long as Registrable Securities are
outstanding, if the Company for itself or any of its security holders
shall at any time or times after the date hereof determine to register
under the Securities Act any shares of its capital stock or other
securities (other than: (i) the registration of an offer, sale or
other disposition of securities solely to employees of, or other
persons providing services to, the Company, or any subsidiary pursuant
to an employee or similar benefit plan; or (ii) the issuance of
securities in a merger, acquisition or other transaction of the type
described in Rule 145 under the Securities Act or a comparable or
successor rule, registered on Form S-4 or similar or successor forms),
on each such occasion the Company will notify each Holder of
Registrable Securities of such determination at least thirty (30) days
prior to the filing of such registration statement, and upon the
request of any Holder given in writing within twenty (20) days after
the receipt of such notice, the Company will cause any of the
Registrable Securities specified by any such Holder to be included in
such registration statement to the extent such registration is
permissible under the Securities Act and subject to the conditions of
the Securities Act and subdivision (g) (an "Incidental Registration").
(c) REGISTRATION STATEMENT FORM. The Company shall, if permitted by law,
effect any registration requested under Section 2 by the filing of a
registration statement on Commission Form S-3.
(d) EXPENSES. The Company shall pay all Registration Expenses incurred in
connection with any Demand Registration Statement and any Incidental
Registration Statement. Those Holders of Registrable Securities
participating in any Demand
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Offering and any Incidental Registration shall bear their respective
pro rata share of any applicable underwriting discounts and
commissions; such participating Holders agree that the proceeds
received by them upon consummation of any such offering shall be net
of any and all such discounts and commissions.
(e) EFFECTIVE REGISTRATION STATEMENT. Neither a Demand Registration
Statement, nor an Incidental Registration requested pursuant to this
Section 2 shall be deemed to have been effected until it has become
effective with the Commission. Notwithstanding the foregoing, a
registration statement will not be deemed to have been effected if:
(i) after it has become effective with the Commission, such
registration is interfered with by any stop order, injunction, or
other order or requirement of the Commission or other governmental
agency or any court proceeding for any reason other than a
misrepresentation or omission by any Holder; or (ii) the conditions to
consummation of any Demand Offering contained in the underwriting
agreement entered into in connection with such registration are not
satisfied, other than solely by reason of some act or omission by any
Holder.
(f) PRIORITY IN UNDERWRITTEN REGISTRATIONS. If a registration is an
underwritten registration and the managing underwriters give written
advice to the Company and the Persons requesting such registration
that, in their opinion, market conditions dictate that no more than a
specified maximum number of securities could successfully be included
in such registration, then the maximum number of securities included
in such registration statement shall be limited to such specified
number, and the rights of the Holders to participate in such
registration will the subject to the following cutback provisions:
(i) In the case of the initial Demand Offering, the securities sought
to be included in such offering by the Holders shall be excluded
on a pro rata basis with the securities sought to be included in
the Demand Offering by the Company and all other Persons seeking
inclusion of securities in such offering (including pursuant to
so-called piggyback registration rights), based upon the
Holder's, the Company's and the other Persons' relative number
of securities sought to be so included until the aggregate market
value of the securities sought to be included in such offering by
the Holders has been reduced to a number of shares constituting
Registrable Securities equal to (A) 70% of the amount of the
Registrable Securities initially subject to this Agreement less,
if any portion of the Remaining Purchase Price under the Purchase
Agreement was paid in cash ("Cash Payment"), (B) a number of
shares constituting Registrable Securities given by the following
formula: X/Y, where X is the amount of the Cash Payment and Y is
the Reference Value (as adjusted for stock splits, stock
dividends, recapitalizations or similar events), after which any
additional securities required to be excluded from such offering
in order to comply with the advice of the managing underwriter
shall be securities that were to have been offered for the
Company's account until the offering includes no such securities,
after which the securities sought to be included in such offering
by the Holders shall be excluded on a pro rata basis with the
securities sought to be included in the Demand Offering by all
other Persons seeking inclusion of securities in such offering
(including pursuant to so-called piggyback registration rights),
based upon the
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Holder's and the other Persons' relative number of securities
sought to be so included; and
(ii) If the registration is an Incidental Registration, (a) the
securities sought to be registered by the Company for its own
account shall have priority for inclusion, (b) the securities
sought to be registered for the account of other Persons
exercising demand registration rights shall have priority for
inclusion to the extent such rights require such priority and
(c) Registrable Securities held by the Holders may be excluded
on a pro rata basis with all other Persons seeking inclusion
of securities in such registration pursuant to the exercise
of so-called piggyback registration rights, based upon such
Holder's and other Persons' relative number of securities sought
to be so included.
(g) BLACKOUT AND POSTPONEMENT. Notwithstanding anything in paragraphs (a)
and (b) of this Section 2, the Company shall have the right (i) to
delay any registration of Registrable Securities requested pursuant to
paragraph (a) or (b) of this Section 2 or (ii) upon written notice to
the Holders, to prohibit the Holders from selling Registrable
Securities under any Demand Registration Statement or any Incidental
Registration, in any case for up to 120 days if such registration or
sale, as applicable, would, in the judgment of the Company as
reflected in an officer's certificate delivered to the Holders,
require disclosures that would not be in the Company's best interest
to make at such time, as applicable; provided, however, that
registrations shall not be delayed and/or sale prohibitions relating
to offerings shall not be in effect pursuant to the provisions of this
paragraph (g) for more than 270 days during any period of 365 days.
The time period during which any sale prohibition relating to a Demand
Registration Statement is in effect under this Section 2(g) shall be
added to the time period for which a Demand Registration Statement is
otherwise required to remain effective under this Agreement.
3. REGISTRATION PROCEDURES.
(a) If and whenever the Company is required to effect the registration of
any Registrable Securities under the Securities Act as provided in
Section 2, the Company, as expeditiously as possible and subject to
the terms and conditions of Section 2, will:
(i) prepare and file with the Commission the requisite
registration statement to effect such registration and use its
best efforts to cause such registration to become and remain
effective;
(ii) permit any Holder which, in the reasonable judgment of the
Holder, might be deemed to be an underwriter or a controlling
person of the Company, to participate in the preparation of
such registration statement and to require the insertion therein
of material, furnished to the Company in writing, which in the
reasonable judgment of such Holder and its counsel should be
included and which is not reasonably objected to by the Company
and its counsel;
(iii)prepare and file with the Commission such amendments and
supplements to such registration statement and the prospectus
used in connection therewith as may be necessary to keep such
registration statement effective and to comply with
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the provisions of the Securities Act with respect to the
disposition of all securities covered by such registration
statement until the earlier of such time as all of such
securities have been disposed of in accordance with the intended
methods of disposition by the seller or sellers thereof set
forth in such registration statement or the expiration of 60
days after such registration statement becomes effective (in
the case of a Demand Registration Statement);
(iv) furnish to the Holders such number of conformed copies of
such registration statement and of each such amendment and
supplement thereto (in each case including all exhibits), such
number of copies of the prospectus contained in such registration
statement (including each preliminary prospectus and any summary
prospectus) and any other prospectus filed under Rule 424
under the Securities Act, in conformity with the requirements
of the Securities Act, and such other documents, as the purchaser
or any Holder of Registrable Securities to be sold under such
registration statement may reasonably request in order to
facilitate the distribution of such Registrable Securities;
(v) use its best efforts to register or qualify all Registrable
Securities covered by such registration statement under such
other United States state securities or blue sky laws of such
jurisdictions as any Holder of Registrable Securities to be
sold under registration statement shall reasonably request, to
keep such registration or qualification in effect for so long as
such registration remains in effect, and take any other action
which may be customary in similar offerings to enable the Holder
of Registrable Securities to be sold under such registration
statement to consummate the disposition in such jurisdictions of
the securities owned by such Holder, except that the Company
shall not for any such purpose be required to (a) qualify
generally to do business as a foreign corporation in any
jurisdiction wherein it would not but for the requirements of
this subdivision (v) be obligated to be so qualified, or (b)
subject itself to taxation in any such jurisdiction.
(vi) use its best efforts to cause all Registrable Securities covered
by such registration statement to be registered with or
approved by such other United States state governmental agencies
or authorities as may be necessary to enable the Holder of
Registrable Securities to be sold under such registration
statement to consummate the intended disposition of such
Registrable Securities;
(vii) in the event of the issuance of any stop order suspending the
effectiveness of the registration statement, or of any order
suspending or preventing the use of any related prospectus
or suspending the qualification of any Registrable Securities
included in such registration statement for sale in any
jurisdiction, the Company shall use its best efforts promptly to
obtain the withdrawal of such order;
(viii) furnish to the Holders of Registrable Securities to be sold under
such registration statement an opinion, dated the effective
date of the registration statement, of the independent counsel
representing the Company for the purposes
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of such registration, addressed to the underwriters, if any,
and to the Holders making such request, stating that such
registration statement has become effective under the
Securities Act and that (i) to the best knowledge of such
counsel, no stop order suspending the effectiveness thereof
has been issued and no proceedings for that purpose have been
instituted or are pending or contemplated under the Securities
Act; (ii) the registration statement, the related prospectus,
and each amendment or supplement thereto, comply as to form in
all material respects with the requirements of the Securities
Act and the applicable rules and regulations of the Commission
thereunder (except that such counsel need express no opinion as
to financial statements and related schedules and other projected
financial or statistical data contained therein); (iii) the
descriptions in the registration statement or the prospectus,
or any amendment or supplement thereto, of all legal and
governmental matters and contracts and other legal documents
or instruments are accurate and fairly present the information
required to be shown; and (v) such counsel does not know of any
legal or governmental proceedings, pending or contemplated,
required to be described in the registration statement or
prospectus, or any amendment or supplement thereto, which are
not described as required nor of any contracts or documents
or instruments of a character required to be described in
the registration statement or prospectus, or any amendment
or supplement thereto or to be filed as exhibits to the
registration statement which are not described and filed as
required. Such counsel shall also opine that, in the course of
assisting the Company in preparing the Registration
Statement, nothing has come to their attention that would
cause them to believe that the Registration Statement
(excluding the financial and statistical information
contained therein) contains any untrue statement of a material
fact or omits a material fact necessary to make the statements
therein, in light of the circumstances under which they were
made not misleading.
(ix) furnish to the Holders of Registrable Securities to be sold
under the Registration Statement a letter, dated the effective
date of the registration statement, from the independent
certified public accountants of the Company, addressed to the
underwriters, if any, and to the Holders making such request,
stating that they are independent certified public accountants
within the meaning of the Securities Act and that in the
opinion of such accountants, the financial statements and
other financial data of the Company included in the registration
statement or the prospectus, or any amendment or supplement
thereto, comply as to form in all material respects with the
applicable accounting requirements of the Securities Act.
Such letter from the independent certified public accountants
shall additionally cover such other financial matters
(including information as to the period ending not more than
five business days prior to the date of such letter) with
respect to the registration in respect of which such letter is
being given as the Holders may reasonably request.
(x) immediately notify the Holders of Registrable Securities included
in such registration statement at any time when a prospectus
relating thereto is required to be delivered under the
Securities Act, of the happening of any event as a result of
which the prospectus included in such registration statement,
as then in effect,
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includes an untrue statement of material fact or omits to state
any material fact required to be stated therein or
necessary to make the statements therein not misleading in the
light of the circumstances under which they were made, and at
the request of the Holders promptly prepare and furnish to
the Holders a reasonable number of copies of a supplement to
or an amendment of such prospectus as may be necessary so
that, as thereafter delivered to the purchasers of such
securities, such prospectus shall not include an untrue statement
of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein
not misleading in the light of the circumstances under which
they were made;
(xi) otherwise use all reasonable best efforts to comply with all
applicable rules and regulations of the Commission, and make
available to its security holders, as soon as reasonably
practicable, an earnings statement covering the period of at
least twelve months, but not more than eighteen months,
beginning with the first full calendar month after the
effective date of such registration statement, which
earnings statement shall satisfy the provisions of Section
11(a) of the Securities Act and Rule 158 thereunder, and not
file any amendment or supplement to such registration statement
or prospectus to which any Holder shall have reasonably objected
in writing on the grounds that such amendment or supplement does
not comply in all material respects with the requirements of
the Securities Act or of the rules or regulations thereunder,
having been furnished with a copy thereof at least two business
days prior to the filing thereof to the extent reasonably
possible;
(xii) provide a transfer agent for all Registrable Securities covered
by such registration statement not later than the effective date
of such registration statement;
(xiii) use all reasonable best efforts to cause to be quoted or
listed all Registrable Securities covered by such
registration statement on NASDAQ and any securities exchange
on which any of the Registrable Securities are then quoted or
listed;
(xiv) confer with NSAC as to mutually beneficial and appropriate time
to schedule the first Demand Offering and make available the
Company's management to participate in roadshow presentations
and conference calls with respect to such offerings; and
(xv) confer with NSAC as to mutually beneficial and appropriate time
to schedule any other underwritten offerings of Company Common
Stock that will include Registrable Securities and use all
reasonable best efforts to work with NSAC to schedule such
offerings so that the Company's management will be able to
participate in roadshow presentations and conference calls with
respect to any additional Demand Offerings in excess of $100
million, the availability of its senior management, however,
being subject to conflicting business necessities.
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(b) As a condition to the Company's obligation under this Section with
respect to any Holder, the Company may require such Holder of
Registrable Securities to be sold under such registration statement,
at the Company's expense, to furnish the Company with such information
and undertakings as it may reasonably request regarding such Holder
and the distribution of such securities as the Company may from time
to time reasonably request in writing.
(c) Each Holder, by execution of this Agreement, agrees (A) that upon
receipt of any notice of the Company of the happening of any event of
the kind described in subdivision (a)(x) of this Section 3, such
Holder will forthwith discontinue its disposition of Registrable
Securities pursuant to the registration statement relating to such
Registrable Securities until the receipt by such Holder of the copies
of the supplemented or amended prospectus contemplated by subdivision
(a)(x) of this Section 3 and, if so directed by the Company, will
deliver to the Company all copies (other than permanent file copies),
then in possession of the Holders of the prospectus relating to such
Registrable Securities current at the time of receipt of such notice
and (B) that it will immediately notify the Company, at any time when
a prospectus relating to the registration of such Registrable
Securities is required to be delivered under the Securities Act, of
the happening of any event as a result of which information previously
furnished in writing by such Holder to the Company for inclusion in
such prospectus contains an untrue statement of a material fact or
omits to state any material fact required to be stated therein or
necessary to make the statements therein not misleading in the light
of the circumstances under which they were made. In the event the
Company or any such Holder shall give any such notice, the period
referred to in subdivision (a)(iii) of this Section 3 shall be
extended by a number of days equal to the number of days during the
period from and including the giving of notice pursuant to subdivision
(a)(x) of this Section 3 to and including the date when such Holder
shall have received the copies of the supplemented or amended
prospectus contemplated by subdivision (a)(x) of this Section 3.
4. UNDERWRITTEN OFFERINGS.
(a) UNDERWRITTEN OFFERING. In connection with any underwritten offering
pursuant to a registration under Section 2, the Company will enter
into an underwriting agreement with the underwriters for such
offering, such agreement to be in form and substance reasonably
satisfactory to all Holders requesting such registration and such
underwriters in their reasonable judgment and to contain such
representations and warranties by the Company and such other terms as
are customarily contained in agreements of that type, including,
without limitation, indemnities to the effect and to the extent
provided in Section 5. Each such Holder shall be a party to such
underwriting agreement and may, at its option, require that any or all
of the representations and warranties by, and the other agreements on
the part of, the Company to and for the benefit of such underwriters
shall also be made to and for the benefit of each such Holder and that
any or all of the conditions precedent to the obligations of such
underwriters under such underwriting agreement be conditions precedent
to the obligations of each such Holder. No Holder shall be required to
make any representations or warranties to or agreements with the
Company or the underwriters other than representations, warranties or
agreements
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regarding such Holder and its intended method of distribution and any
other representation required by law.
(b) SELECTION OF UNDERWRITERS. The Company shall select its customary
underwriter or, alternatively, an underwriting firm of national
reputation, with expertise in comparable offerings by companies
engaged in businesses similar to that of the Company that is
reasonably satisfactory to NSAC, for any Demand Offering and any
underwritten offering pursuant to an Incidental Registration.
(c) HOLDBACK AGREEMENTS. Each Holder agrees, if required by the managing
underwriter in any offering, not to effect any public sale or
distribution of Registrable Securities, any sale or distribution
thereof pursuant to Rule 144 or 145 under the Securities Act, or any
short sale thereof or any transaction or series of transactions having
a substantially similar economic effect during the period beginning
(i) if the Closing under the Merger Agreement has occurred on or prior
to the date hereof, on the date hereof and ending on the date 180 days
after the Initial Registration Statement (as defined in that certain
Registration Rights Agreement between Purchaser and certain
stockholders of WNP Communications, Inc., dated January 14, 1999)
shall have been declared effective or (ii) in the case of any Demand
Registration or Incidental Registration, beginning seven days prior to
the effective date of such registration statement, and ending on the
date 180 days after any such registration statement shall have been
declared effective.
(d) PREPARATION, REASONABLE INVESTIGATION.
In connection with the preparation and filing of each
registration statement under the Securities Act, the Company will
give Nextel, the underwriters, if any, and their respective counsel
and accountants, drafts and final copies of such registration
statement, each prospectus included therein or filed with the
Commission and each amendment thereof or supplement thereto, at
least 5 business days prior to the filing thereof with the
Commission, and will give each of them such access to its books and
records and such opportunities to discuss the business of the
Company with its officers and the independent public
accountants who have certified its financial statements as shall
be necessary, in the opinion of such Holders' and such underwriters'
respective counsel, to conduct a reasonable investigation within
the meaning of the Securities Act.
5. INDEMNIFICATION AND CONTRIBUTION.
(a) INDEMNIFICATION BY THE COMPANY. In the event of any registration under
the Securities Act pursuant to Section 2 of any Registrable Securities
covered by such registration, the Company will, and hereby does,
indemnify and hold harmless each Holder of Registrable Securities to
be sold under such registration statement, each such Holder's legal
counsel, each other person who participates as an underwriter in the
offering or sale of such securities (if so required by such
underwriter as a condition to including the Registrable Securities of
the Holders in such registration) and each other person, if any, who
controls any such Holder or any such underwriter within the meaning
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of the Securities Act (collectively, the "Indemnified Parties"),
against any losses, claims, damages or liabilities, joint or several,
to which the Holders or underwriter or controlling person may
become subject under the Securities Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions or proceedings,
whether commenced or threatened, in respect thereof) arise out of or
are based upon any untrue statement or alleged untrue statement of any
material fact contained in any registration statement under which
such securities were registered under the Securities Act, any
preliminary prospectus, final prospectus or summary prospectus
contained therein or any document incorporated therein by
reference, or any amendment or supplement thereto, or any
omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements
therein not misleading, or arise out of any violation by the
Company of any rule or regulation promulgated under the
Securities Act or state securities law applicable to the Company
and relating to action or inaction required of the Company in
connection with any such registration, and the Company will
reimburse the Indemnified Parties for any legal or any other
expenses reasonably incurred by them in connection with
investigating or defending any such loss, claim, liability,
action or proceeding; provided, however, that the Company shall
not be liable to any Indemnified Party in any such case to the
extent that any such loss, claim, damage, liability (or action or
proceeding in respect thereof) or expense arises out of or is
based upon any untrue statement or alleged untrue statement or
omission or alleged omission made in such registration statement,
any such preliminary prospectus, final prospectus, summary
prospectus, amendment or supplement in reliance upon and in
conformity with written information furnished to the Company by
such Indemnified Party specifically for use therein.
(b) INDEMNIFICATION BY THE HOLDERS. The Company may require, as a
condition to including any Registrable Securities of any Holder in any
registration statement filed pursuant to Section 2, that the Company
shall have received an undertaking reasonably satisfactory to it from
such Holder to indemnify and hold harmless (in the same manner and to
the same extent as set forth in subdivision (a) of this Section 5) the
Company, each director of the Company, each officer of the Company and
each other person, if any, who controls the Company within the meaning
of the Securities Act, with respect to any statement or alleged
statement in or omission or alleged omission from such registration
statement, any preliminary prospectus, final prospectus or summary
prospectus contained therein, or any amendment or supplement thereto,
if, and only if, and only to the extent that, such statement or
alleged statement or omission or alleged omission was made in reliance
upon and in conformity with information furnished in writing to the
Company directly by such Holder specifically for use therein;
provided, however, that the obligation of any Holder hereunder shall
be limited to an amount equal to the net proceeds received by such
Holder upon the sale ofRegistrable Securities sold in the offering
covered by such registration.
(c) NOTICES OF CLAIMS, ETC. Promptly after receipt by an
Indemnified Party of notice of the commencement of any action
or proceeding involving a claim referred to in the preceding
subdivisions of this Section 5, such Indemnified Party will, if a
claim in respect thereof is to be made against a party required
to provide indemnification (an "Indemnifying Party"), give
written notice to the latter of the commencement of such
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action, provided, however, that the failure of any Indemnified
Party to give notice as provided herein shall not relieve the
Indemnifying Party of its obligation under the preceding subdivisions
of this Section 5, except to the extent that the Indemnifying Party is
actually prejudiced by such failure to give notice. In case any such
action is brought against an Indemnified Party, unless in such
Indemnified Party's reasonable judgment a conflict of interest between
such Indemnified and indemnifying parties may exist in respect of such
claim, the Indemnifying Party shall be entitled to participate in and
to assume the defense thereof, jointly with any other Indemnifying
Party similarly notified to the extent that it may wish, with counsel
reasonably satisfactory to such Indemnified Party, and after notice
from the Indemnifying Party to such Indemnified Party of its election
so to assume the defense thereof, the Indemnifying Party shall not be
liable to such Indemnified Party for any legal or other expenses
subsequently incurred by the latter in connection with the defense
thereof other than reasonable costs of investigation. No Indemnifying
Party shall consent to entry of any judgment or enter into any
settlement without the consent of the Indemnified Party which does not
include as an unconditional term thereof the giving by the claimant or
plaintiff to such Indemnified Party of a release from all liability in
respect to such claim or litigation.
(d) OTHER INDEMNIFICATION. Indemnification substantially equivalent to
that specified in the preceding subdivisions of this Section 5
(with appropriate modifications) shall be given by the Company and
each Holder of Registrable Securities included in any registration
statement with respect to any required registration or other
qualification of securities under any Federal or state law or
regulation of any governmental authority, other than the Securities
Act.
(e) INDEMNIFICATION PAYMENT. The indemnification required by this Section
5 shall be made by periodic payments of the amount thereof
during the course of the investigation or defense, as and when bills
are received or expense, loss, damage or liability is incurred.
(f) SURVIVAL OF OBLIGATIONS. The obligations of the Company and of the
Holders under this Section 5 shall survive the completion of any
offering of Registrable Securities under this Agreement.
(g) CONTRIBUTION. If the indemnification provided for in this
Section 5 is unavailable or insufficient to hold harmless an
Indemnified Party, then each Indemnifying Party shall contribute to
the amount paid or payable to such Indemnified Party as a result of
the losses, claims, damages or liabilities referred to in this Section
5 an amount or additional amount, as the case may be, in such
proportion as is appropriate to reflect the relative fault of the
Indemnifying Party or parties on the one hand and the Indemnified
Party on the other in connection with the statements or omissions
which resulted in such losses, claims, demands or liabilities as well
as any other relevant equitable considerations. The relative fault
shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission
or alleged omission to state a material fact relates to information
supplied by the Indemnifying Party or parties on the one hand or the
Indemnified Party on the other and the parties' relative, intent,
knowledge, access to information and opportunity to correct or prevent
such untrue statement or omission. The amount paid to an Indemnified
Party as a result of the losses,
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claims, damages or liabilities referred to in the first sentence of
this Section 5(g) shall be deemed to include any legal or other
expenses reasonably incurred by such Indemnified Party in connection
with investigating or defending any action or claim which is the
subject of this Section 5. No person guilty of fraudulent
misrepresentation within the meaning of Section 11(f) of the
Securities Act shall be entitled to contribution from any Person who
was not guilty of such fraudulent misrepresentation.
6. COVENANTS RELATING TO RULE 144.
With a view to making available the benefits of certain rules and
regulations of the Commission which may at any time permit the sale of
securities of the Company to the public without registration after
such time as a public market exists for the Common Stock of the
Company, the Company agrees:
(a) to make and keep public information available, as those terms
are understood and defined in Rule 144 under the Securities Act, at
all times after the date of the Closing;
(b) to use all reasonable best efforts to then file with the
Commission in a timely manner all reports and other documents required
of the Company under the Securities Act and the Exchange Act, as
amended; and
(c) so long as a Holder owns any Registrable Securities, to
furnish to the Holder forthwith upon request a written statement by
the Company as to its compliance with the reporting requirements of
said Rule 144 and of the Securities Act and the Exchange Act, a copy
of the most recent annual or quarterly report of the Company, and such
other reports and documents of the Company as a Holder may reasonably
request in availing itself of any rule or regulation of the Commission
allowing a Holder to sell any such securities without registration.
7. OTHER REGISTRATION RIGHTS.
The Company represents and warrants that it has not granted any
registration rights to any Person other than as described pursuant to
the Purchase Agreement. The Company shall not grant to any Person any
registration rights inconsistent with any of those contained herein,
so long as any of the registration rights under this Agreement remain
in effect.
8. MISCELLANEOUS.
(a) SPECIFIC PERFORMANCE. The parties hereto acknowledge that
there may be no adequate remedy at law if any party fails to perform
any of its obligations hereunder and that each party may be
irreparably harmed by any such failure, and accordingly agree that
each party, in addition to any other remedy to which it may be
entitled at law or in equity, shall be entitled to compel specific
performance of the obligations of any other party under this Agreement
in accordance with the terms and conditions of this Agreement.
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(b) NOTICES. All demands, requests, notices and other
communications required or permitted to be given under this Agreement
shall be in writing and shall be deemed to have been duly given if
delivered personally or sent by United States first class mail,
postage prepaid, and to the parties hereto at the following address or
at such other address as any party hereto shall hereafter specify by
notice to the other party hereto:
(i) if to the Company, addressed to:
NEXTLINK Communications, Inc.
500 108th Avenue, NE, Suite 2200
Bellevue, WA 98004
Attention: General Counsel
Facsimile No.: 425-519-8997
and
NEXTLINK Communications, Inc.
1730 Rhode Island Avenue, N.W.
Washington, D.C. 20036
Attention: Corporate Counsel
Facsimile No.: 202-721-0995
with a copy to:
Willkie Farr & Gallagher
787 Seventh Avenue
New York, New York 10019-6099
Attention: Bruce R. Kraus, Esq.
Facsimile No.: 212-728-8111
(ii) if to NSAC, addressed to:
Nextel Spectrum Acquisition Corp.
c/o Nextel Communications, Inc.
1505 Farm Credit Drive
McLean, Virginia 22102
Attention: General Counsel
Facsimile No.: 703-394-3896
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with a copy to:
Jones, Day, Reavis & Pogue
41 S. High Street, Suite 1900
Columbus, Ohio 43215
Attention: Gregory A. Gorospe, Esq.
Facsimile No.: 614-461-4198
Except as otherwise provided herein, all such demands, requests, notices and
other communications shall be deemed to have been received on the date of
personal delivery thereof or on the third business day after the mailing
thereof.
(c) GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the internal laws of the State of New
York, without regard to conflicts of law principles thereof.
(d) HEADINGS. The descriptive headings of the several sections
and paragraphs of this Agreement are inserted for convenience only,
and do not constitute a part of this Agreement and shall not affect in
any way the meaning or interpretation of this Agreement.
(e) ENTIRE AGREEMENT; AMENDMENTS. This Agreement and the other
writings referred to herein or delivered pursuant hereto which form a
part hereof contain the entire understanding of the parties with
respect to its subject matter. This Agreement supersedes all prior
agreements and understandings between the parties with respect to its
subject matter. This Agreement may be amended and the observance of
any term of this Agreement may be waived (either generally or in a
particular instance and either retroactively or prospectively) only by
a written instrument duly executed by the Company and Nextel on behalf
of the Holders. Each Holder of any Registrable Securities at the time
or thereafter outstanding shall be bound by an amendment or waiver
authorized by this Section 8(e), whether or not any such Registrable
Securities shall have been marked to indicate such consent.
(f) ASSIGNABILITY. This Agreement and all of the provisions
hereof will be assigned, without the consent of the Company, by any
Holder to, and shall inure to the benefit of, any purchaser,
transferee or assignee of any Registrable Security to the extent of
the securities so transferred or assigned, provided that the seller,
transferor or assignor does not affirmatively restrict in -461-
writing the transfer or assignment of rights hereunder with respect to
such securities. However, the Company shall not be required to
recognize any such purchaser, transferee or assignee as a Holder under
this Agreement unless and until either (i) such person becomes the
holder of record of Series A Common Stock or (ii) the Company receives
written notice of such purchase, transfer or assignment and a written
agreement by the purchaser, assignee or transferee to be bound by the
provisions of this Agreement.
(g) COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
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(h) STOCK SPLITS, ETC. If the Company at any time subdivides (by
any stock split, stock dividend, recapitalization or otherwise) its
outstanding shares of Common Stock into a greater number of shares or
if the outstanding shares of Common Stock shall be combined (by
reverse stock split or otherwise) into a smaller number of shares, all
numbers, percentages, computations and the like in this Agreement
shall be deemed modified as necessary to give appropriate effect to
such subdivision or combination.
IN WITNESS WHEREOF, the parties have executed this Registration Rights
Agreement as of the date first above written.
NEXTLINK COMMUNICATIONS, INC.
By:
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Name:
Title:
NEXTEL SPECTRUM ACQUISITION CORP.
By:
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Name:
Title: