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Title: |
Registration Rights Agreement |
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Entities: |
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Date: |
2001 |
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Size: |
Preview shows 8KB of 46KB total |
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Price: |
$44 |
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ID: |
#1367043 |
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OMNISKY CORPORATION
REGISTRATION RIGHTS AGREEMENT
JUNE 4, 2001
<PAGE>
<TABLE>
<S> <C>
REGISTRATION RIGHTS AGREEMENT............................... 1
1. Certain Definitions.................................... 1
-------------------
2. Restrictions on Transferability........................ 2
-------------------------------
3. Restrictive Legend..................................... 2
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4. Notice of Proposed Transfers........................... 3
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5. Requested Registration................................. 4
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6. Company Registration................................... 6
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7. Expenses of Registration............................... 7
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8. Registration Procedures................................ 7
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9. Registration on Form S-2 or S-3........................ 8
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10. Termination of Registration Rights..................... 8
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11. Indemnification........................................ 8
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12. Information by Holder.................................. 10
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13. Rule 144 Reporting..................................... 10
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14. Transfer of Registration Rights........................ 10
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15. Subsequent Grant of Registration Rights................ 11
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16. Governing Law.......................................... 11
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17. Entire Agreement....................................... 11
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18. Notices, etc........................................... 11
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19. Counterparts........................................... 12
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20. Amendment.............................................. 12
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</TABLE>
-i-
<PAGE>
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (this "Agreement") is made as of June 4,
2001 by and between OmniSky Corporation, a Delaware corporation (the "Company"),
and Omni Holdings, Inc., a Delaware corporation (the "Shareholder").
RECITALS
--------
A. The Company and the Shareholder are parties to an Exchange Agreement,
dated as of the date hereof (the "Exchange Agreement").
B. Pursuant to the Exchange Agreement, the Shareholder has agreed to
exchange its 50% membership interest in OmniSky International, LLC, in exchange
for (i) the number of shares of the Company's Common Stock, par value $.001 per
share (the "Common Stock"), determined in accordance with the terms of the
Exchange Agreement, and (ii) a warrant to purchase shares of the Company's
Common Stock (the "Warrant").
C. The obligation of the Shareholder to acquire the Common Stock is
conditioned upon, among other things, the execution and delivery by the Company
of this Agreement.
AGREEMENT
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1. Certain Definitions. As used in this Agreement, the following terms
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shall have the following respective meanings:
"AOL Registrable Securities" shall mean the shares of the Common Stock
purchased by America Online, Inc. ("AOL") pursuant to the Common Stock Purchase
Agreement, dated as of August 31, 2001, by and between the Company and AOL.
"Commission" shall mean the Securities and Exchange Commission or any
successor agency.
"Existing Registrable Securities" shall mean the shares of the Company
referred to as Registrable Securities in the Amended and Restated Investors'
Rights Agreement, dated April 24, 2000, by and between the Company and the
persons listed on the Schedule of Holders attached thereto.
"Holder" shall mean the Shareholder or any assignee or transferee of
Registrable Securities in accordance with Section 14 hereof.
<PAGE>
"Pari Passu Registrable Securities" shall mean the shares of the Company,
other than the Existing Registrable Securities, which have registration rights.
"Restricted Securities" shall mean the securities of the Company required
to bear the legend set forth in Section 3 hereof (or any similar legend).
"Registrable Securities" shall mean (i) shares of the Company's Common
Stock issued pursuant to the Exchange Agreement; (ii) shares of the Company's
Common Stock issuable or issued upon exercise of the Warrant; and (iii) shares
of the Company's Common Stock or other securities issued or issuable in respect
of the shares described in clauses (i) and (ii) upon any stock split, stock
dividend, recapitalization, or similar event; provided, however, that any shares
-------- -------
described in clauses (i) and (ii) above which have been resold to the public and
are no longer Restricted Securities shall cease to be Registrable Securities
upon such resale.
The terms "Register," "Registered" and "Registration" refer to a
registration effected by preparing and filing a registration statement in
compliance with the Securities Act, and the declaration or ordering of the
effectiveness of such registration statement.
"Registration Expenses" shall mean all expenses incurred by the Company in
complying with Sections 5, 6, 8 and 9 hereof, including, without limitation, all
registration, qualification and filing fees, printing expenses, escrow fees,
fees and disbursements of counsel for the Company, blue sky fees and expenses
and the expense of any special audits incident to or required by any such
registration and the legal expenses of one counsel to the selling Holders.
"Securities Act" shall mean the Securities Act of 1933, as amended.
"Selling Expenses" shall mean all underwriting discounts, selling
commissions and stock transfer taxes applicable to the securities registered by
the Holders.
2. Restrictions on Transferability. The Restricted Securities shall not
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be transferable except upon the conditions specified in this Agreement, which
conditions are intended to ensure compliance with the provisions of the
Securities Act. The Holder of Restricted Securities will cause any proposed
transferee of the Restricted Securities held by such Holder, other than a
transferee acquiring such securities in connection with a registered offering
covering such disposition, to agree to take and hold such Restricted Securities
subject to the provisions and upon the conditions specified in this Agreement.
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