0001193125-13-266987.txt : 20130621 0001193125-13-266987.hdr.sgml : 20130621 20130621122436 ACCESSION NUMBER: 0001193125-13-266987 CONFORMED SUBMISSION TYPE: SC 13D/A PUBLIC DOCUMENT COUNT: 6 FILED AS OF DATE: 20130621 DATE AS OF CHANGE: 20130621 GROUP MEMBERS: SN UHC1, INC. GROUP MEMBERS: SPRINT HOLDCO, LLC SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: Clearwire Corp /DE CENTRAL INDEX KEY: 0001442505 STANDARD INDUSTRIAL CLASSIFICATION: COMMUNICATION SERVICES, NEC [4899] IRS NUMBER: 000000000 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D/A SEC ACT: 1934 Act SEC FILE NUMBER: 005-84306 FILM NUMBER: 13926394 BUSINESS ADDRESS: STREET 1: 1475 120TH AVE NE CITY: BELLEVUE STATE: WA ZIP: 98005 BUSINESS PHONE: 425-216-7600 MAIL ADDRESS: STREET 1: 1475 120TH AVE NE CITY: BELLEVUE STATE: WA ZIP: 98005 FORMER COMPANY: FORMER CONFORMED NAME: New Clearwire CORP DATE OF NAME CHANGE: 20080811 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: SPRINT NEXTEL CORP CENTRAL INDEX KEY: 0000101830 STANDARD INDUSTRIAL CLASSIFICATION: TELEPHONE COMMUNICATIONS (NO RADIO TELEPHONE) [4813] IRS NUMBER: 480457967 STATE OF INCORPORATION: KS FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D/A BUSINESS ADDRESS: STREET 1: 6200 SPRINT PARKWAY CITY: OVERLAND PARK STATE: KS ZIP: 66251 BUSINESS PHONE: 800-829-0965 MAIL ADDRESS: STREET 1: 6200 SPRINT PARKWAY CITY: OVERLAND PARK STATE: KS ZIP: 66251 FORMER COMPANY: FORMER CONFORMED NAME: SPRINT CORP DATE OF NAME CHANGE: 19921222 FORMER COMPANY: FORMER CONFORMED NAME: UNITED TELECOMMUNICATIONS INC DATE OF NAME CHANGE: 19920316 FORMER COMPANY: FORMER CONFORMED NAME: UNITED UTILITIES INC DATE OF NAME CHANGE: 19731011 SC 13D/A 1 d558039dsc13da.htm FORM SC 13D/A Form SC 13D/A

 

 

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

 

SCHEDULE 13D/A

(Rule 13d-101)

INFORMATION TO BE INCLUDED IN STATEMENTS FILED PURSUANT

TO § 240.13d-1(a) AND AMENDMENTS THERETO FILED PURSUANT TO

§ 240.13d-1(a)

(Amendment No. 3)*

 

 

CLEARWIRE CORPORATION

(Name of Issuer)

Class A Common Stock

(Title of Class of Securities)

18538Q 105

(CUSIP Number)

Michael J. Egan

King & Spalding LLP

1180 Peachtree Street, N.E.

Atlanta, Georgia 30309

(404) 572-4600

(Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications)

June 20, 2013

(Date of Event Which Requires Filing of This Statement)

 

 

If the filing person has previously filed a statement on Schedule 13G to report the acquisition that is the subject of this Schedule 13D, and is filing this schedule because of §§ 240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check the following box:   ¨

 

 

Note: Schedules filed in paper format shall include a signed original and five copies of the schedule, including all exhibits. See § 240.13d-7 for other parties to whom copies are to be sent.

 

 

 

* The remainder of this cover page shall be filled out for a reporting person’s initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter disclosures provided in a prior cover page.

The information required on the remainder of this cover page shall not be deemed to be “filed” for the purpose of Section 18 of the Securities Exchange Act of 1934 (the “Act”) or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes).

 

 

 

(Continued on following pages)


  (1)   

Name of reporting person:

 

Sprint Nextel Corporation

  (2)  

Check the appropriate box if a member of a group

(a)  ¨        (b)  x

 

  (3)  

SEC use only

 

  (4)  

Source of funds:

 

    Not Applicable

  (5)  

Check box if disclosure of legal proceedings is required pursuant to Items 2(d) or 2(e)    ¨

 

  (6)  

Citizenship or place of organization:

 

    Kansas

Number of

shares

beneficially

owned by

each

reporting

person

with

 

     (7)    

Sole voting power:

 

    0

     (8)   

Shared voting power:

 

    739,010,818*

     (9)   

Sole dispositive power:

 

    0

   (10)   

Shared dispositive power:

 

    739,010,818*

(11)  

Aggregate amount beneficially owned by each reporting person:

 

    739,010,818*

(12)  

Check box if the aggregate amount in Row (11) excludes certain shares    x**

 

(13)  

Percent of class represented by amount in Row (11):

 

    52.5%*

(14)  

Type of reporting person:

 

    HC

 

* See discussion in Items 4 through 6 of this Amendment No. 3 to Schedule 13D (the “Amendment”). As more fully described in the responses to Items 4 through 6 of the Schedule 13D, the Reporting Persons and certain other beneficial owners of Class A Common Stock named herein may be deemed to be members of a “group” under Section 13(d) of the Act by virtue of certain agreements described in the Schedule 13D. Neither the filing of this Amendment nor any of its contents shall be deemed to constitute an admission by any Reporting Person that, except as expressly set forth herein, it has or shares beneficial ownership of any shares of Class A Common Stock held by any other person for purposes of Section 13(d) of the Act, or for any other purpose, and such beneficial ownership thereof is expressly disclaimed.
** See the footnotes to the table in Item 5(a)-(b) of this Amendment.


  (1)   

Name of reporting person:

 

Sprint HoldCo, LLC

  (2)  

Check the appropriate box if a member of a group

(a)  ¨        (b)  x

 

  (3)  

SEC use only

 

  (4)  

Source of funds:

 

    WC

  (5)  

Check box if disclosure of legal proceedings is required pursuant to Items 2(d) or 2(e)    ¨

 

  (6)  

Citizenship or place of organization:

 

    Delaware

Number of

shares

beneficially

owned by

each

reporting

person

with

 

     (7)    

Sole voting power:

 

    0

     (8)   

Shared voting power:

 

    705,359,348*

     (9)   

Sole dispositive power:

 

    0

   (10)   

Shared dispositive power:

 

    705,359,348*

(11)  

Aggregate amount beneficially owned by each reporting person:

 

    705,359,348*

(12)  

Check box if the aggregate amount in Row (11) excludes certain shares    x**

 

(13)  

Percent of class represented by amount in Row (11):

 

    50.2%*

(14)  

Type of reporting person:

 

    OO

 

* See discussion in Items 4 through 6 of this Amendment. As more fully described in the responses to Items 4 through 6 of the Schedule 13D, the Reporting Persons and certain other beneficial owners of Class A Common Stock named herein may be deemed to be members of a “group” under Section 13(d) of the Act by virtue of certain agreements described in the Schedule 13D. Neither the filing of this Amendment nor any of its contents shall be deemed to constitute an admission by any Reporting Person that, except as expressly set forth herein, it has or shares beneficial ownership of any shares of Class A Common Stock held by any other person for purposes of Section 13(d) of the Act, or for any other purpose, and such beneficial ownership thereof is expressly disclaimed.
** See the footnotes to the table in Item 5(a)-(b) of this Amendment.


  (1)   

Name of reporting person:

 

SN UHC 1, Inc.

  (2)  

Check the appropriate box if a member of a group

(a)  ¨        (b)  x

 

  (3)  

SEC use only

 

  (4)  

Source of funds:

 

    WC

  (5)  

Check box if disclosure of legal proceedings is required pursuant to Items 2(d) or 2(e)    ¨

 

  (6)  

Citizenship or place of organization:

 

    Delaware

Number of

shares

beneficially

owned by

each

reporting

person

with

 

     (7)    

Sole voting power:

 

    0

     (8)   

Shared voting power:

 

    33,651,470*

     (9)   

Sole dispositive power:

 

    0

   (10)   

Shared dispositive power:

 

    33,651,470*

(11)  

Aggregate amount beneficially owned by each reporting person:

 

    33,651,470*

(12)  

Check box if the aggregate amount in Row (11) excludes certain shares    x**

 

(13)  

Percent of class represented by amount in Row (11):

 

    4.8%*

(14)  

Type of reporting person:

 

    OO

 

* See discussion in Items 4 through 6 of this Amendment. As more fully described in the responses to Items 4 through 6 of the Schedule 13D, the Reporting Persons and certain other beneficial owners of Class A Common Stock named herein may be deemed to be members of a “group” under Section 13(d) of the Act by virtue of certain agreements described in the Schedule 13D. Neither the filing of this Amendment nor any of its contents shall be deemed to constitute an admission by any Reporting Person that, except as expressly set forth herein, it has or shares beneficial ownership of any shares of Class A Common Stock held by any other person for purposes of Section 13(d) of the Act, or for any other purpose, and such beneficial ownership thereof is expressly disclaimed.
** See the footnotes to the table in Item 5(a)-(b) of this Amendment.


This Amendment No. 3 to Statement on Schedule 13D (this “Amendment”) is filed by Sprint Nextel Corporation, a Kansas corporation (“Sprint”), Sprint HoldCo, LLC, a Delaware limited liability company (“Sprint HoldCo”), and SN UHC 1, Inc., a Delaware corporation (“SN UHC 1”), and, together with Sprint and Sprint HoldCo, the “Sprint Entities” or the “Reporting Persons”), with respect to the Class A common stock, par value $0.0001 per share (the “Class A Common Stock”), of Clearwire Corporation, a Delaware corporation (“Clearwire” or the “Issuer”).

EXPLANATORY NOTE REGARDING PRIOR JOINT SCHEDULE 13D

This Amendment relates to the Statement on Schedule 13D filed on December 5, 2008 (the “Initial Joint 13D Filing”), as amended by Amendment No. 1 thereto filed on February 27, 2009, Amendment No. 2 thereto filed on November 12, 2009, Amendment No. 3 thereto filed on December 22, 2009, Amendment No. 4 thereto filed on December 7, 2010, Amendment No. 5 thereto filed on December 14, 2010, Amendment No. 6 thereto filed on May 13, 2011, Amendment No. 7 thereto filed on June 8, 2011, Amendment No. 8 thereto filed on December 16, 2011, Amendment No. 9 thereto filed on February 24, 2012, Amendment No. 10 thereto filed on March 14, 2012, Amendment No. 11 thereto filed on June 15, 2012, Amendment No. 12 thereto filed on September 14, 2012, Amendment No. 13 thereto filed on October 3, 2012 and the Amendment No. 14 thereto filed on October 18, 2012 (such Amendment, “Amendment No. 14” and the Initial Joint 13D Filing, as so amended through Amendment No. 14, the “Prior Joint Schedule 13D”). The Prior Joint Schedule 13D was jointly filed on behalf of (i) the Reporting Persons, (ii) Comcast Corporation, a Pennsylvania corporation (“Comcast”), Comcast Wireless Investment, LLC, a Delaware limited liability company (“Comcast LLC” and, collectively with Comcast, the “Comcast Entities”), (iii) Bright House Networks, LLC, a Delaware limited liability company (“BHN”), BHN Spectrum Investments, LLC, a Delaware limited liability company (“BHN Spectrum”), Newhouse Broadcasting Corporation, a New York corporation (“NBCo”, and collectively with BHN and BHN Spectrum, the “BHN Entities”), (iv) Eagle River Holdings, LLC, a Washington limited liability company (“ERH”), and Craig O. McCaw, an individual (“Mr. McCaw” and, together with ERH, the “ERH Entities”), and (v) certain other beneficial owners of Class A Common Stock that were previously party to the Equityholders’ Agreement described in this Schedule 13D, except that Amendment No. 14 was filed jointly on behalf of Sprint, Sprint HoldCo and the ERH Entities only.

On October 17, 2012, the Reporting Persons elected to report their beneficial ownership of Class A Common Stock apart from the Comcast Entities, the BHN Entities and the ERH Entities, except that Sprint, Sprint HoldCo and the ERH Entities filed Amendment No. 14 pursuant to a joint filing agreement among such parties solely with respect to that filing. On December 13, 2012, a Schedule 13D was filed solely by the Reporting Persons (the “New Joint Schedule 13D”), as amended by Amendment No. 1 thereto filed on December 19, 2012 and Amendment No. 2 thereto filed on May 22, 2013 (together with the New Joint Schedule 13D, as so amended through this Amendment, the “Schedule 13D”), and this Amendment is filed solely by the Reporting Persons. However, the Schedule 13D is a continuation of the Reporting Persons’ beneficial ownership reporting of Class A Common Stock set forth in the Prior Joint Schedule 13D and, as such, information from the Prior Joint Schedule 13D has been incorporated herein by reference as if set forth in full herein. The Initial Joint 13D Filing and all amendments thereto through Amendment No. 14 are filed as Exhibits 99.1 through Exhibit 99.15 to the New Joint Schedule 13D, respectively.

All capitalized terms used in this Amendment and not defined herein have the meanings ascribed to such terms in the Prior Joint Schedule 13D or New Joint Schedule 13D, as applicable.

Item 1. Security and Issuer.

No material change.

Item 2. Identity and Background.

No material change.

Item 3. Source and Amount of Funds or Other Consideration.

Item 3 of the Schedule 13D is amended and supplemented by adding the following information under a new heading “Third Amendment to Merger Agreement and Related Agreements”:


Sprint estimates that, at the price per share/unit set forth in the Third Amendment with respect to the Merger (as described in Item 4 below), the amount in cash required to acquire the remaining shares of Common Stock and Clearwire Communications Class B Common Interests not already owned by the Sprint Entities would increase to approximately $3.9 billion. In addition, based on Clearwire’s decision not to draw on the first two Draw Dates, election to draw on the subsequent three Draw Dates and election not to draw on the most recent Draw Date, up to $320 million in cash will be required to acquire the maximum remaining amount of available Interim Notes (as described in Item 4 below). Sprint anticipates that it will obtain such funds from working capital.

Item 4. Purpose of Transaction.

Item 4 of the Schedule 13D is amended and supplemented by adding the following information under a new heading “Third Amendment to Merger Agreement and Related Agreements”:

On June 20, 2013, Sprint, Merger Sub and Clearwire executed a Third Amendment to the Merger Agreement (the “Third Amendment”) providing for an increase to the Merger Consideration from $3.40 to $5.00. In addition, Sprint and Clearwire agreed to amend certain other provisions in the Merger Agreement to, among other things:

 

   

provide that Clearwire’s special meeting of stockholders scheduled for June 24, 2013 will be convened and then immediately adjourned until July 8, 2013;

 

   

require Clearwire and its representatives immediately to cease and terminate any and all discussions and negotiations with DISH Network Corporation (“DISH”) and its affiliates with respect to the previously announced tender offer by a wholly owned subsidiary of DISH for the outstanding shares of Class A Common Stock (the “DISH Tender Offer”);

 

   

prohibit Clearwire from granting certain governance rights to DISH until termination of the Merger Agreement in certain circumstances;

 

   

amend the conditions under which Sprint may terminate the Merger Agreement;

 

   

provide for the right of Sprint to cause Clearwire to hold an annual meeting after termination of the Merger Agreement at which Sprint may replace its 7 designees to the Clearwire board of directors;

 

   

require Clearwire to pay to Sprint a termination fee of $115,000,000 under certain specified circumstances; and

 

   

provide that, upon termination of the Merger Agreement in certain circumstances, Clearwire waives with respect to Sprint the application of the standstill provisions of the Equityholders’ Agreement.

In connection with the Third Amendment, Sprint and Starburst II, Inc. entered into a voting and sale agreement with each of Mount Kellett Master Fund II-A, L.P. (such stockholder, “Mount Kellett” and such voting and sale agreement, the “Mount Kellett Agreement”), Highside Capital Management, L.P. (such stockholder, “Highside Capital” and such voting and sale agreement, the “Highside Capital Agreement”), C P Management, L.L.C. (such stockholder, “C P Management” and such voting and sale agreement, the “C P Management Agreement”) and Glenview Capital Management, LLC (such stockholder, “Glenview” and such voting and sale agreement, the “Glenview Agreement”). Mount Kellett, Highside Capital, C P Management and Glenview are collectively referred to herein as the “Mount Kellett Stockholders” and the Mount Kellett Agreement, Highside Capital Agreement, C P Management Agreement and Glenview Agreement are collectively referred to herein as the “Voting and Sale Agreements.” Pursuant to each Voting and Sale Agreement, each Mount Kellett Stockholder has agreed, at any annual, special or other meeting of the stockholders of Clearwire called for the purpose of voting on the adoption of the Merger Agreement, to vote its shares of Common Stock in favor of, among other things: (i) approving and adopting the Merger Agreement; (ii) the matters to be voted upon by Clearwire’s stockholders pursuant to the Note Purchase Agreement; and (iii) any proposal to adjourn or postpone the stockholders’ meeting held to approve and adopt the Merger Agreement. Each Mount Kellett Stockholder also agreed to vote such shares against any other acquisition proposals at any such meeting.

In addition, unless the Effective Time has previously occurred, upon the earlier of October 15, 2013 (subject to extension in certain circumstances) and the termination of the Merger Agreement pursuant to its terms, Sprint will promptly deliver a notice thereof to each Mount Kellett Stockholder (the “Termination Notice”). Upon the earlier of October 15, 2013 (subject to extension in certain circumstances) and the receipt of the Termination Notice, Sprint and each Mount Kellett Stockholder shall consummate the purchase (the “Sale”) by Sprint of all of Common Stock owned by each Mount Kellett Stockholder as of the date of Voting and Sale


Agreements and, in Sprint’s sole discretion, all or any portion of any additional shares of Common Stock then beneficially owned by each Mount Kellett Stockholder, at a cash sale price per share equal to the greatest of (i) the Merger Consideration, (ii) the highest price per share of Common Stock paid or to be paid in the Merger and (iii) $5.00, without interest.

Each Voting and Sale Agreement will terminate upon the earliest to occur of the following: (i) the Effective Time, (ii) the consummation of all of the sales of Common Stock contemplated by each Voting and Sale Agreement and (iii) the written agreement of Sprint and each Mount Kellett Stockholder. Each Mount Kellett Stockholder has agreed that it will not transfer the shares of Common Stock owned by it until the termination of the respective Voting and Sale Agreement to which it is a party, subject to certain exceptions.

Pursuant to the terms of each Voting and Sale Agreement, if the Sale occurs and at any time prior to the one-year anniversary of the consummation of the Sale, Sprint or any of its affiliates acquires all, but not less than all, of the outstanding shares of Common Stock not held by Sprint or any of its Affiliates, whether by merger, tender offer, purchase or other similar transaction (a “Subsequent Transaction”) at a price per share of Common Stock in excess of the price paid in the Sale, then Sprint shall pay or cause to be paid to the Mount Kellett Stockholder, for each shares of Common Stock purchased in the Sale, the difference between the price per share of Common Stock paid in the Sale and the price per share of Common Stock paid in the Subsequent Transaction.

The Mount Kellett Stockholders own in the aggregate 127,347,499 shares (or approximately 18.21%) of the Class A Common Stock.

Pursuant to the terms of the SoftBank Merger Agreement, SoftBank provided its consent for Sprint to enter into the Third Amendment and the Voting and Sale Agreements (the “SoftBank Consent”).

The foregoing descriptions of the Third Amendment, Mount Kellett Agreement, Highside Capital Agreement, C P Management Agreement, Glenview Agreement and SoftBank Consent are only a summary, do not purport to be complete and are qualified in their entirety by reference to the full text of the Third Amendment, Mount Kellett Agreement, Highside Capital Agreement, C P Management Agreement, Glenview Agreement and SoftBank Consent, which are filed as Exhibit 99.65, Exhibit 99.66, Exhibit 99.67, Exhibit 99.68, Exhibit 99.69 and Exhibit 99.70, respectively, and are incorporated herein by reference.

Item 5. Interest in Securities of the Issuer.

(a)-(b) As of June 20, 2013, each Reporting Person may be deemed to have beneficial ownership (within the meaning of Rule 13d-3 under the Act) and shared power to vote or direct the vote of up to the amounts listed in the table below and may be deemed to constitute a “group” under Section 13(d) of the Act.

 

Reporting Person

   Class A
Common
Stock
     % of
Class A (1)
    Class B
Common
Stock
     % of
Class B (1)
    % Voting  

Sprint (2)

     739,010,818         52.5     708,087,860         91.5     50.2

Sprint HoldCo (3)

     705,359,348         50.2     705,359,348         91.2     47.9

SN UHC 1 (4)

     33,651,470         4.8     2,728,512         0.4     2.3

 

(1) Shares of Class A Common Stock beneficially owned and the respective percentages of beneficial ownership of Class A Common Stock assumes the conversion of all shares of Class B Common Stock beneficially owned by such person or entity into Class A Common Stock, and the exercise of all options, warrants and other securities convertible into common stock beneficially owned by such person or entity currently exercisable or exercisable within 60 days of June 20, 2013. Shares issuable pursuant to the conversion of Class B Common Stock or the exercise of stock options and warrants exercisable within 60 days are deemed outstanding and held by the holder of such shares of Class B Common Stock, options or warrants for computing the percentage of outstanding common stock beneficially owned by such person, but are not deemed outstanding for computing the percentage of outstanding common stock beneficially owned by any other person. The respective percentages of beneficial ownership of Class A Common Stock and Class B Common Stock are based on 699,173,175 shares of Class A Common Stock and 773,732,672 shares of Class B Common Stock outstanding as of April 23, 2013, as reported in the Issuer’s Quarterly Report on Form 10-Q filed with the SEC on April 26, 2013.


(2) Consists of 705,359,348 shares of Class B Common Stock beneficially owned by Sprint HoldCo, 30,922,958 shares of Class A Common Stock beneficially owned by SN UHC 1 and 2,728,512 shares of Class B Common Stock beneficially owned by SN UHC 1. By virtue of the fact that Sprint HoldCo and SN UHC 1 are wholly-owned subsidiaries of Sprint, Sprint may be deemed to have shared voting and dispositive power with respect to the shares of Class A Common Stock owned by Sprint HoldCo and SN UHC 1.
(3) Consists of 705,359,348 shares of Class B Common Stock beneficially owned by Sprint HoldCo.
(4) Consists of 30,922,958 shares of Class A Common Stock beneficially owned by SN UHC 1 and 2,728,512 shares of Class B Common Stock beneficially owned by SN UHC 1.

Except as set forth or incorporated herein or in the Appendices to the Schedule 13D, none of (i) the Reporting Persons and (ii) to the Sprint Entities’ knowledge, the persons set forth on Appendix A-1 through A-3 of the Schedule 13D, beneficially owns any shares of Class A Common Stock as of June 20, 2013.

In addition to the beneficial ownership of the Reporting Persons described herein, by virtue of the Equityholders’ Agreement and Voting Agreement, each of the Reporting Persons, together with the Comcast Entities, the BHN Entities, Intel Capital Wireless Investment Corporation 2008A, a Delaware corporation (the “Intel A”), Intel Capital Corporation, a Delaware corporation (“Intel Capital”), and Intel Capital (Cayman) Corporation, a Cayman Islands corporation (“Intel Cayman” and, together with Intel A and Intel Capital, the “Intel Entities”), may be deemed to be a member of a “group” under Section 13(d) of the Act, which may be deemed to beneficially own, have shared power to vote or direct the vote over and have shared dispositive power over the following shares of Class A Common Stock beneficially owned by the Comcast Entities, the BHN Entities and the Intel Entities:

 

 

Amendment No.1 to Statement on Schedule 13D filed on December 19, 2013 by the Comcast Entities reports beneficial ownership of 88,504,132 shares of Class A Common Stock representing 12.7% of the Class A Common Stock;

 

 

Statement on Schedule 13D filed on October 26, 2012 by the BHN Entities reports beneficial ownership of 8,474,440 shares of Class A Common Stock representing 1.2% of the Class A Common Stock; and

 

 

Amendment No. 17 to the Statement on Schedule 13D filed by Intel Corporation on December 20, 2013 reports beneficial ownership of 94,076,878 shares of Class A Common Stock (which consists of 25,098,733 shares of Class A Common Stock held by Intel Capital, 3,333,333 shares of Class A Common Stock held by Intel Cayman and 65,644,812 shares of Class B Common Stock held by the Intel A) representing 12.3% of the Class A Common Stock.

As described in Items 4 and 6 of this Schedule 13D, the Equityholders’ Agreement includes a voting agreement under which such Equityholders and their respective affiliates share the ability to elect a majority of the Issuer’s directors and the Voting Agreement includes a voting agreement under which the Equityholders and their respective affiliates agree to vote their shares of Common Stock to support the Merger. The Reporting Persons disclaim beneficial ownership of the shares of capital stock beneficially owned by such other Equityholders.

Further, as described in Items 4 and 6 of this Schedule 13D, Sprint is a party to Voting and Sale Agreements with the Mount Kellett Stockholders. The Mount Kellett Stockholders hold shares of Class A Common Stock representing 18.21% of the Class A Common Stock as follows: 53,188,166 shares of Class A Common Stock held by Mount Kellett; 13,199,348 shares of Class A Common Stock held by Highside Capital; 32,052,360 shares of Class A Common Stock held by Glenview; and 28,907,625 shares of Class A Common Stock held by C P Management. The Reporting Persons disclaim beneficial ownership of the shares of capital stock beneficially owned by the Mount Kellett Stockholders.

(c) Except as set forth or incorporated herein or in the Appendices to the Schedule 13D, none of (i) the Reporting Persons and (ii) to the Sprint Entities’ knowledge, the persons set forth on Appendices A-1 through A-3 of the Schedule 13D, has effected any transaction in Class A Common Stock during the 60 days prior to June 20, 2013.

(d) Not applicable.

(e) Not applicable.


Item 6. Contracts, Arrangements, Understandings or Relationships with Respect to Securities of the Issuer.

Item 6 of the Schedule 13D is amended and supplemented with the information contained in Item 4 of this Amendment, which is hereby incorporated by reference.

Item 7. Material to be Filed as Exhibits.

Item 7 of the Schedule 13D is hereby amended and supplemented by adding the following at the end thereof:

 

Exhibit
No.

  

Description

99.65    Third Amendment, dated as of June 20, 2013, to Agreement and Plan of Merger, dated as of December 17, 2012, by and among Sprint Nextel Corporation, Collie Acquisition Corp. and Clearwire Corporation (incorporated by reference to Exhibit 2.1 of Sprint Nextel Corporation’s Current Report on Form 8-K filed on June 21, 2013)
99.66    Voting and Sale Agreement, dated as of June 20, 2013, by and among Sprint Nextel Corporation, Starburst II, Inc., and Mount Kellett Master Fund II-A, L.P.
99.67    Voting and Sale Agreement, dated as of June 20, 2013, by and among Sprint Nextel Corporation, Starburst II, Inc., and Highside Capital Management, L.P.
99.68    Voting and Sale Agreement, dated as of June 20, 2013, by and among Sprint Nextel Corporation, Starburst II, Inc., and Glenview Capital Management, LLC
99.69    Voting and Sale Agreement, dated as of June 20, 2013, by and among Sprint Nextel Corporation, Starburst II, Inc., and C P Management, L.L.C.
99.70    Consent and Agreement, dated as of June 20, 2013, by and among SOFTBANK CORP., Starburst II, Inc. and Sprint Nextel Corporation


SIGNATURE

After reasonable inquiry and to the best of our knowledge and belief, the undersigned certify that the information set forth in this statement is true, complete and correct.

Dated: June 21, 2013

 

Sprint Nextel Corporation
By  

/s/ Timothy P. O’Grady

  Name:   Timothy P. O’Grady
  Title:   Vice President
Sprint HoldCo, LLC
By  

/s/ Timothy P. O’Grady

  Name:   Timothy P. O’Grady
  Title:   Vice President
SN UHC 1, Inc.
By  

/s/ Timothy P. O’Grady

  Name:   Timothy P. O’Grady
  Title:   Vice President


Appendix A-1

EXECUTIVE OFFICERS AND DIRECTORS

OF

SPRINT

Set forth below is a list of each executive officer and director of Sprint setting forth the business address and present principal occupation or employment (and the name and address of any corporation or organization in which such employment is conducted) of each person. Unless otherwise indicated, each occupation set forth opposite an individual’s name refers to such individual’s employment with Sprint and each individual is a United States citizen.

 

Name and Business Address

 

Present Principal Occupation

(principal business of employer)

 

Name and Address of Corporation or

Other Organization (if different from

address provided in Column 1)

Daniel R. Hesse*

Sprint Nextel Corporation

6200 Sprint Parkway,

Overland Park, Kansas 66251

  President and Chief Executive Officer of Sprint Nextel Corporation  

Joseph J. Euteneuer

Sprint Nextel Corporation

6200 Sprint Parkway,

Overland Park, Kansas 66251

  Chief Financial Officer of Sprint Nextel Corporation  

Paget L. Alves

Sprint Nextel Corporation

6200 Sprint Parkway,

Overland Park, Kansas 66251

  Chief Sales Officer of Sprint Nextel Corporation  

Robert L. Johnson

Sprint Nextel Corporation

6200 Sprint Parkway

Overland Park, KS 66251

  Chief Service and Information Technology Officer  

Matthew Carter

Sprint Nextel Corporation

6591 Irvine Center Dr., #100

Irvine, CA 92618

  President – Global Wholesale and Emerging Solutions  

Steven L. Elfman

Sprint Nextel Corporation

6200 Sprint Parkway,

Overland Park, Kansas 66251

  President – Network Operations and Wholesale of Sprint Nextel Corporation  

Michael C. Schwartz

Sprint Nextel Corporation

6200 Sprint Parkway,

Overland Park, Kansas 66251

  Senior Vice President—Corporate and Business Development of Sprint Nextel Corporation  

Charles R. Wunsch

6200 Sprint Parkway,

Overland Park, Kansas 66251

  Senior Vice President, General Counsel and Corporate Secretary of Sprint Nextel Corporation  
Ryan H. Siurek   Vice President, Controller and  


Sprint Nextel Corporation

6480 Sprint Parkway,

Overland Park, Kansas 66251

  Principal Accounting Officer of Sprint Nextel Corporation  

William M. Malloy

Sprint Nextel Corporation

6200 Sprint Parkway,

Overland Park, Kansas 66251

  Chief Marketing Officer  

Robert R. Bennett*

Sprint Nextel Corporation

6200 Sprint Parkway,

Overland Park, Kansas 66251

  Principal of Hilltop Investments, LLC, a private investment company.  

 

Hilltop Investments, LLC

10900 Hilltop Road

Parker, CO 80134

Gordon M. Bethune*

Sprint Nextel Corporation

6200 Sprint Parkway,

Overland Park, Kansas 66251

  Retired  

Larry C. Glasscock*

Sprint Nextel Corporation

6200 Sprint Parkway,

Overland Park, Kansas 66251

  Retired  

James H. Hance, Jr.*

Sprint Nextel Corporation

6200 Sprint Parkway,

Overland Park, Kansas 66251

  Chairman of the Board of Sprint Nextel Corporation and Senior Advisor of the Carlyle Group  

Bank of America Corporation

NCI-007-52-17

100 North Tryon Street

Charlotte, NC 28255

V. Janet Hill*

Sprint Nextel Corporation

6200 Sprint Parkway,

Overland Park, Kansas 66251

 

 

Principal, Hill Family Advisors.

 

 

Hill Family Advisors

4000 Legato Road, Suite 1100

Fairfax, VA 22033

Frank Ianna*

Sprint Nextel Corporation

6200 Sprint Parkway,

Overland Park, Kansas 66251

  Chief Executive Officer and Director, Attila Technologies LLC, a Technogenesis company  

425 Devonshire Drive

Franklin Lakes, NJ 07417

Sven-Christer Nilsson, a citizen of Sweden*

Sprint Nextel Corporation

6200 Sprint Parkway,

Overland Park, Kansas 66251

  Founder/Owner of Ripasso AB, a private business advisory company  

Ripasso AB

Utsiktsvägen 2

SE-260 83 Vejbystrand/Sweden

William R. Nuti*

Sprint Nextel Corporation

6200 Sprint Parkway,

Overland Park, Kansas 66251

  Chairman of the Board, Chief Executive Officer and President of NCR Corporation, a global technology company  

NCR Corporation

 

250 Greenwich Street, 35th Floor

New York, NY 10007

Rodney O’Neal*

Sprint Nextel Corporation

6200 Sprint Parkway,

Overland Park, Kansas 66251

  Chief Executive Officer and President of Delphi Automotive PLC, a global supplier of mobile electronics and transportation  

Delphi Automotive PLC

M/C 483-400-650

5725 Delphi Drive

Troy, Michigan 48098-2815


  systems  

 

* Director


Appendix A-2

EXECUTIVE OFFICERS AND DIRECTORS

OF

SPRINT HOLDCO

Set forth below is a list of each executive officer and director of Sprint HoldCo setting forth the business address and present principal occupation or employment (and the name and address of any corporation or organization in which such employment is conducted) of each person. Unless otherwise indicated, each occupation set forth opposite an individual’s name refers to such individual’s employment with Sprint HoldCo and each individual is a United States citizen.

 

Name and Business Address

 

Present Principal Occupation

(principal business of employer)

 

Name and Address of Corporation or

Other Organization (if different from

address provided in Column 1)

Directors    

None – managed by:

SN UHC 4, Inc.; and

c/o Sprint Nextel Corporation

6200 Sprint Parkway,

Overland Park, Kansas 66251

   
Executive Officers    

Charles R. Wunsch

Sprint Nextel Corporation

6200 Sprint Parkway,

Overland Park, Kansas 66251

  President of Sprint HoldCo, LLC  

Gregory D. Block

Sprint Nextel Corporation

6200 Sprint Parkway,

Overland Park, Kansas 66251

  Vice President and Treasurer of Sprint HoldCo, LLC  

Timothy P. O’Grady

Sprint Nextel Corporation

6200 Sprint Parkway,

Overland Park, Kansas 66251

  Vice President and Secretary of Sprint HoldCo, LLC  

Ryan H. Siurek

Sprint Nextel Corporation

6480 Sprint Parkway,

Overland Park, Kansas 66251

  Vice President and Controller of Sprint HoldCo, LLC  

Paget L. Alves

Sprint Nextel Corporation

6200 Sprint Parkway,

Overland Park, Kansas 66251

  Vice President of Sprint HoldCo, LLC  

Mark V. Beshears

Sprint Nextel Corporation

6200 Sprint Parkway,

Overland Park, Kansas 66251

  Vice President of Sprint HoldCo, LLC  

Gary E. Charde

Sprint Nextel Corporation

  Vice President of Sprint HoldCo, LLC  


6200 Sprint Parkway,

Overland Park, Kansas 66251

   

Douglas B. Lynn

Sprint Nextel Corporation

6200 Sprint Parkway,

Overland Park, Kansas 66251

  Vice President of Sprint HoldCo, LLC  

John J. Mutrie, Jr.

Sprint Nextel Corporation

6200 Sprint Parkway,

Overland Park, Kansas 66251

  Vice President of Sprint HoldCo, LLC  

Todd A. Rowley

Sprint Nextel Corporation

6200 Sprint Parkway,

Overland Park, Kansas 66251

  Vice President of Sprint HoldCo, LLC  


Appendix A-3

EXECUTIVE OFFICERS AND DIRECTORS

OF

SN UHC 1

Set forth below is a list of each executive officer and director of SN UHC 1 setting forth the business address and present principal occupation or employment (and the name and address of any corporation or organization in which such employment is conducted) of each person. Unless otherwise indicated, each occupation set forth opposite an individual’s name refers to such individual’s employment with SN UHC 1 and each individual is a United States citizen.

 

Name and Business Address

 

Present Principal Occupation

(principal business of employer)

 

Name and Address of Corporation or

Other Organization (if different from

address provided in Column 1)

Charles R. Wunsch*

Sprint Nextel Corporation

6200 Sprint Parkway,

Overland Park, Kansas 66251

  President of SN UHC 1, Inc.  

Ryan H. Siurek

Sprint Nextel Corporation

6480 Sprint Parkway,

Overland Park, Kansas 66251

  Vice President and Controller of SN UHC 1, Inc.  

Gregory D. Block

Sprint Nextel Corporation

6200 Sprint Parkway,

Overland Park, Kansas 66251

  Vice President and Treasurer of SN UHC 1, Inc.  

Timothy P. O’Grady*

Sprint Nextel Corporation

6200 Sprint Parkway,

Overland Park, Kansas 66251

  Vice President and Secretary of SN UHC 1, Inc.  

John W. Chapman

Sprint Nextel Corporation

6200 Sprint Parkway,

Overland Park, Kansas 66251

  Vice President and Asst. Secretary of SN UHC 1, Inc.  

Paget L. Alves

Sprint Nextel Corporation

6200 Sprint Parkway,

Overland Park, Kansas 66251

  Vice President of SN UHC 1, Inc.  

Mark V. Beshears

Sprint Nextel Corporation

6200 Sprint Parkway,

Overland Park, Kansas 66251

  Vice President of SN UHC 1, Inc.  

Gary E. Charde

Sprint Nextel Corporation

6200 Sprint Parkway,

  Vice President of SN UHC 1, Inc.  


Overland Park, Kansas 66251    

Lawrence R. Krevor

Sprint Nextel Corporation

6200 Sprint Parkway,

Overland Park, Kansas 66251

  Vice President of SN UHC 1, Inc.  

Todd A. Rowley

Sprint Nextel Corporation

6200 Sprint Parkway,

Overland Park, Kansas 66251

  Vice President of SN UHC 1, Inc.  

Patricia C. Tikkala

Sprint Nextel Corporation

6200 Sprint Parkway,

Overland Park, Kansas 66251

  Vice President of SN UHC 1, Inc.  

John J. Mutrie, Jr.

Sprint Nextel Corporation

6200 Sprint Parkway,

Overland Park, Kansas 66251

  Assistant Controller of SN UHC 1, Inc.  

Ceyhun (Jay) Cetin

Sprint Nextel Corporation

6480 Sprint Parkway,

Overland Park, Kansas 66251

  Assistant Treasurer of SN UHC 1, Inc.  

Jennifer Dale

Sprint Nextel Corporation

6200 Sprint Parkway,

Overland Park, Kansas 66251

  Assistant Treasurer of SN UHC 1, Inc.  

Stefan K. Schnopp*

Sprint Nextel Corporation

6200 Sprint Parkway,

Overland Park, Kansas 66251

  Assistant Secretary of SN UHC 1, Inc.  

 

* Director


EXHIBIT INDEX

 

Exhibit
No.

  

Description

99.1    Statement on Schedule 13D (the “Initial Joint 13D Filing”) filed on December 5, 2008 by Sprint Nextel Corporation, Sprint HoldCo, LLC, Comcast Corporation, Comcast Wireless Investment I, Inc., Comcast Wireless Investment II, Inc., Comcast Wireless Investment III, Inc., Comcast Wireless Investment IV, Inc., Comcast Wireless Investment V, Inc., Time Warner Cable Inc., Time Warner Cable LLC, TWC Wireless Holdings I LLC, TWC Wireless Holdings II LLC, TWC Wireless Holdings III LLC, Bright House Networks, LLC, BHN Spectrum Investments, LLC, Newhouse Broadcasting Corporation, Google Inc., Eagle River Holdings, LLC, Craig O. McCaw and CWCI, LLC
99.2    Amendment No. 1 to the Statement on Schedule 13D filed on February 27, 2009 by Sprint Nextel Corporation, Sprint HoldCo, LLC, Comcast Corporation, Comcast Wireless Investment I, Inc., Comcast Wireless Investment II, Inc., Comcast Wireless Investment III, Inc., Comcast Wireless Investment IV, Inc., Comcast Wireless Investment V, Inc., Time Warner Cable Inc., Time Warner Cable LLC, TWC Wireless Holdings I LLC, TWC Wireless Holdings II LLC, TWC Wireless Holdings III LLC, Bright House Networks, LLC, BHN Spectrum Investments, LLC, Newhouse Broadcasting Corporation, Google Inc. Eagle River Holdings, LLC, Craig O. McCaw and CWCI, LLC
99.3    Amendment No. 2 to the Statement on Schedule 13D (“Amendment No. 2”) filed on November 12, 2009 by Sprint Nextel Corporation, Sprint HoldCo, LLC, Comcast Corporation, Comcast Wireless Investment I, Inc., Comcast Wireless Investment II, Inc., Comcast Wireless Investment III, Inc., Comcast Wireless Investment IV, Inc., Comcast Wireless Investment V, Inc., Time Warner Cable Inc., Time Warner Cable LLC, TWC Wireless Holdings I LLC, TWC Wireless Holdings II LLC, TWC Wireless Holdings III LLC, Bright House Networks, LLC, BHN Spectrum Investments, LLC, Newhouse Broadcasting Corporation, Google Inc., Eagle River Holdings, LLC, Craig O. McCaw and CWCI, LLC
99.4    Amendment No. 3 to the Statement on Schedule 13D filed on December 22, 2009 by Sprint Nextel Corporation, Sprint HoldCo, LLC, Comcast Corporation, Comcast Wireless Investment I, Inc., Comcast Wireless Investment II, Inc., Comcast Wireless Investment III, Inc., Comcast Wireless Investment IV, Inc., Comcast Wireless Investment V, Inc., Comcast Wireless Investment VI, Inc., Time Warner Cable Inc., Time Warner Cable LLC, TWC Wireless Holdings I LLC, TWC Wireless Holdings II LLC, TWC Wireless Holdings III LLC, Bright House Networks, LLC, BHN Spectrum Investments, LLC, Newhouse Broadcasting Corporation, Google Inc., Eagle River Holdings, LLC, Craig O. McCaw and CWCI, LLC
99.5    Amendment No. 4 to the Statement on Schedule 13D (“Amendment No. 4”) filed on December 7, 2010 by Sprint Nextel Corporation, Sprint HoldCo, LLC, Comcast Corporation, Comcast Wireless Investment I, Inc., Comcast Wireless Investment II, Inc., Comcast Wireless Investment III, Inc., Comcast Wireless Investment IV, Inc., Comcast Wireless Investment V, Inc., Comcast Wireless Investment VI, Inc., Time Warner Cable Inc., Time Warner Cable LLC, TWC Wireless Holdings I LLC, TWC Wireless Holdings II LLC, TWC Wireless Holdings III LLC, Bright House Networks, LLC, BHN Spectrum Investments, LLC, Newhouse Broadcasting Corporation, Google Inc., Eagle River Holdings, LLC and Craig O. McCaw
99.6    Amendment No. 5 to the Statement on Schedule 13D filed on December 14, 2010 by Sprint Nextel Corporation, Sprint HoldCo, LLC, Comcast Corporation, Comcast Wireless Investment I, Inc., Comcast Wireless Investment II, Inc., Comcast Wireless Investment III, Inc., Comcast Wireless Investment IV, Inc., Comcast Wireless Investment V, Inc., Comcast Wireless Investment VI, Inc., Time Warner Cable Inc., Time Warner Cable LLC, TWC Wireless Holdings I LLC, TWC Wireless Holdings II LLC, TWC Wireless Holdings III LLC, Bright House Networks, LLC, BHN Spectrum Investments, LLC, Newhouse Broadcasting Corporation, Google Inc., Eagle River Holdings, LLC and Craig O. McCaw
99.7    Amendment No. 6 to the Statement on Schedule 13D filed on May 13, 2011 by Sprint Nextel Corporation, Sprint HoldCo, LLC, Comcast Corporation, Comcast Wireless Investment I, Inc., Comcast Wireless Investment II, Inc., Comcast Wireless Investment III, Inc., Comcast Wireless Investment IV, Inc., Comcast Wireless Investment V, Inc., Comcast Wireless Investment VI, Inc., Time Warner Cable Inc., Time Warner Cable LLC, TWC Wireless Holdings I


   LLC, TWC Wireless Holdings II LLC, TWC Wireless Holdings III LLC, Bright House Networks, LLC, BHN Spectrum Investments, LLC, Newhouse Broadcasting Corporation, Google Inc., Eagle River Holdings, LLC and Craig O. McCaw
99.8    Amendment No. 7 to the Statement on Schedule 13D (“Amendment No. 7”) filed on June 8, 2011 by Sprint Nextel Corporation, Sprint HoldCo, LLC, Comcast Corporation, Comcast Wireless Investment I, Inc., Comcast Wireless Investment II, Inc., Comcast Wireless Investment III, Inc., Comcast Wireless Investment IV, Inc., Comcast Wireless Investment V, Inc., Comcast Wireless Investment VI, Inc., Time Warner Cable Inc., Time Warner Cable LLC, TWC Wireless Holdings I LLC, TWC Wireless Holdings II LLC, TWC Wireless Holdings III LLC, Bright House Networks, LLC, BHN Spectrum Investments, LLC, Newhouse Broadcasting Corporation, Google Inc., Eagle River Holdings, LLC and Craig O. McCaw
99.9    Amendment No. 8 to the Statement on Schedule 13D (“Amendment No. 8”) filed on December 16, 2011 by Sprint Nextel Corporation, Sprint HoldCo, LLC, Comcast Corporation, Comcast Wireless Investment I, Inc., Comcast Wireless Investment II, Inc., Comcast Wireless Investment III, Inc., Comcast Wireless Investment IV, Inc., Comcast Wireless Investment V, Inc., Comcast Wireless Investment VI, Inc., Time Warner Cable Inc., Time Warner Cable LLC, TWC Wireless Holdings I LLC, TWC Wireless Holdings II LLC, TWC Wireless Holdings III LLC, Bright House Networks, LLC, BHN Spectrum Investments, LLC, Newhouse Broadcasting Corporation, Google Inc., Eagle River Holdings, LLC and Craig O. McCaw
99.10    Amendment No. 9 to the Statement on Schedule 13D (“Amendment No. 9”) filed on February 24, 2012 by Sprint Nextel Corporation, Sprint HoldCo, LLC, Comcast Corporation, Comcast Wireless Investment I, Inc., Comcast Wireless Investment II, Inc., Comcast Wireless Investment III, Inc., Comcast Wireless Investment IV, Inc., Comcast Wireless Investment V, Inc., Comcast Wireless Investment VI, Inc., Time Warner Cable Inc., Time Warner Cable LLC, TWC Wireless Holdings I LLC, TWC Wireless Holdings II LLC, TWC Wireless Holdings III LLC, Bright House Networks, LLC, BHN Spectrum Investments, LLC, Newhouse Broadcasting Corporation, Google Inc., Eagle River Holdings, LLC and Craig O. McCaw
99.11    Amendment No. 10 to the Statement on Schedule 13D filed on March 14, 2012 by Sprint Nextel Corporation, Sprint HoldCo, LLC, Comcast Corporation, Comcast Wireless Investment I, Inc., Comcast Wireless Investment II, Inc., Comcast Wireless Investment III, Inc., Comcast Wireless Investment IV, Inc., Comcast Wireless Investment V, Inc., Comcast Wireless Investment VI, Inc., Time Warner Cable Inc., Time Warner Cable LLC, TWC Wireless Holdings I LLC, TWC Wireless Holdings II LLC, TWC Wireless Holdings III LLC, Bright House Networks, LLC, BHN Spectrum Investments, LLC, Newhouse Broadcasting Corporation, Google Inc., Eagle River Holdings, LLC and Craig O. McCaw
99.12    Amendment No. 11 to the Statement on Schedule 13D (“Amendment No. 11”) filed on June 15, 2012 by Sprint Nextel Corporation, Sprint HoldCo, LLC, Comcast Corporation, Comcast Wireless Investment I, Inc., Comcast Wireless Investment II, Inc., Comcast Wireless Investment III, Inc., Comcast Wireless Investment IV, Inc., Comcast Wireless Investment V, Inc., Comcast Wireless Investment VI, Inc., Time Warner Cable Inc., Time Warner Cable LLC, TWC Wireless Holdings I LLC, TWC Wireless Holdings II LLC, TWC Wireless Holdings III LLC, Bright House Networks, LLC, BHN Spectrum Investments, LLC, Newhouse Broadcasting Corporation, Eagle River Holdings, LLC and Craig O. McCaw
99.13    Amendment No. 12 to the Statement on Schedule 13D (“Amendment No. 12”) filed on September 14, 2012 by Sprint Nextel Corporation, Sprint HoldCo, LLC, Comcast Corporation, Comcast Wireless Investment, LLC, Time Warner Cable Inc., Time Warner Cable LLC, TWC Wireless Holdings I LLC, TWC Wireless Holdings II LLC, TWC Wireless Holdings III LLC, Bright House Networks, LLC, BHN Spectrum Investments, LLC, Newhouse Broadcasting Corporation, Eagle River Holdings, LLC and Craig O. McCaw
99.14    Amendment No. 13 to the Statement on Schedule 13D (“Amendment No. 13”) filed on October 3, 2012 by Sprint Nextel Corporation, Sprint HoldCo, LLC, Comcast Corporation, Comcast Wireless Investment, LLC, Time Warner Cable Inc., Time Warner Cable LLC, TWC Wireless Holdings I LLC, TWC Wireless Holdings II LLC, TWC Wireless Holdings III LLC, Bright House Networks, LLC, BHN Spectrum Investments, LLC, Newhouse Broadcasting Corporation, Eagle River Holdings, LLC and Craig O. McCaw


99.15    Amendment No. 14 to the Statement on Schedule 13D (“Amendment No. 14”) filed on October 18, 2012 by Sprint Nextel Corporation, Sprint HoldCo, LLC, Eagle River Holdings, LLC and Craig O. McCaw
99.16    Transaction Agreement and Plan of Merger, dated as of May 7, 2008, by and among Sprint Nextel Corporation, Clearwire Corporation, Comcast Corporation, Time Warner Cable Inc., Bright House Networks, LLC, Google Inc., and Intel Corporation (incorporated herein by reference to Exhibit 2.1 of Clearwire Corporation’s Current Report on Form 8-K filed May 7, 2008)
99.17    Amendment No. 1 to the Transaction Agreement and Plan of Merger, dated as of November 21, 2008, by and among Sprint Nextel Corporation, Clearwire Corporation, Comcast Corporation, Time Warner Cable Inc., Bright House Networks, LLC, Google Inc., and Intel Corporation (incorporated herein by reference to Exhibit 2.1 of Clearwire Corporation’s Current Report on Form 8-K filed December 1, 2008)
99.18    Equityholders’ Agreement, dated as of November 28, 2008, by and among Clearwire Corporation, Sprint HoldCo, LLC, Eagle River Holdings, LLC, Intel Capital Wireless Investment Corporation 2008A, Intel Capital Wireless Investment Corporation 2008B, Intel Capital Wireless Investment Corporation 2008C, Intel Capital Corporation, Intel Capital (Cayman) Corporation, Middlefield Ventures, Inc., Comcast Wireless Investment I, Inc., Comcast Wireless Investment II, Inc., Comcast Wireless Investment III, Inc., Comcast Wireless Investment IV, Inc., Comcast Wireless Investment V, Inc., Google Inc., TWC Wireless Holdings I LLC, TWC Wireless Holdings II LLC, TWC Wireless Holdings III LLC, BHN Spectrum Investments, LLC and, for the limited purpose of Sections 2.13, 2.14, 2.15 and Article 4, Sprint Nextel Corporation (incorporated herein by reference to Exhibit 4.1 of Clearwire Corporation’s Current Report on Form 8-K filed December 1, 2008)
99.19    Strategic Investor Agreement, dated as of November 28, 2008, by and among Comcast Wireless Investment I, Inc., Comcast Wireless Investment II, Inc., Comcast Wireless Investment III, Inc., Comcast Wireless Investment IV, Inc., Comcast Wireless Investment V, Inc., TWC Wireless Holdings I LLC, TWC Wireless Holdings II LLC, TWC Wireless Holdings III LLC, BHN Spectrum Investments, LLC, Google Inc., Comcast Corporation, Time Warner Cable Inc. and Bright House Networks, LLC (incorporated herein by reference to Exhibit 99.7 to the Initial Joint 13D Filing)
99.20    Registration Rights Agreement, dated as of November 28, 2008, among Clearwire Corporation, Sprint Nextel Corporation, Eagle River Holdings, LLC, Intel Corporation, Comcast Corporation, Google Inc., Time Warner Cable Inc. and BHN Spectrum Investments LLC (incorporated herein by reference to Exhibit 4.2 of Clearwire Corporation’s Current Report on Form 8-K filed December 1, 2008)
99.21    Amended and Restated Operating Agreement of Clearwire Communications LLC, dated as of November 28, 2008 (incorporated herein by reference to Exhibit 10.1 of Clearwire Corporation’s Current Report on Form 8-K filed December 1, 2008)
99.22    Joint Filing Agreement, dated as of November 28, 2008, among the reporting persons to the Initial Joint 13D Filing and, solely for purposes of Sections 7, 8, 9 and 10, the Intel Entities, Intel Capital, Intel Cayman and Middlefield Ventures, Inc. (incorporated herein by reference to Exhibit 99.7 to the Initial Joint 13D Filing)
99.23    Investment Agreement, dated as of November 9, 2009, by and among Sprint Nextel Corporation, Clearwire Corporation, Clearwire Communications LLC, Comcast Corporation, Time Warner Cable Inc., Bright House Networks, LLC, Eagle River Holdings, LLC and Intel Corporation (incorporated herein by reference to Exhibit 99.1 of Sprint Nextel Corporation’s Current Report on Form 8-K filed November 10, 2009)
99.24    Non-Unanimous Written Consent to Action in Lieu of Special Meeting of the Stockholders of Clearwire Corporation, dated as of November 9, 2009, executed by Sprint HoldCo, LLC, Eagle River Holdings, LLC, Intel Capital Wireless Investment Corporation 2008A, Intel Capital Wireless Investment Corporation 2008B, Intel Capital Wireless Investment Corporation 2008C, Intel Capital Corporation, Intel Capital (Cayman) Corporation, Middlefield Ventures, Inc., Comcast Wireless Investment I, Inc., Comcast Wireless Investment II, Inc., Comcast Wireless Investment III, Inc., Comcast Wireless Investment IV, Inc., Comcast Wireless Investment V, Inc., Google Inc., TWC Wireless


   Holdings I LLC, TWC Wireless Holdings II LLC, TWC Wireless Holdings III LLC and BHN Spectrum Investments, LLC (incorporated herein by reference to Exhibit 99.9 to Amendment No. 2)
99.25    Unanimous Consent and Waiver, dated as of November 9, 2009, by and among Clearwire Corporation, Clearwire Communications LLC, Sprint HoldCo, LLC, Eagle River Holdings, LLC, Intel Capital Wireless Investment Corporation 2008A, Intel Capital Wireless Investment Corporation 2008B, Intel Capital Wireless Investment Corporation 2008C, Intel Capital Corporation, Intel Capital (Cayman) Corporation, Middlefield Ventures, Inc., Comcast Wireless Investment I, Inc., Comcast Wireless Investment II, Inc., Comcast Wireless Investment III, Inc., Comcast Wireless Investment IV, Inc., Comcast Wireless Investment V, Inc., Comcast Corporation, Google Inc., TWC Wireless Holdings I LLC, TWC Wireless Holdings II LLC, TWC Wireless Holdings III LLC, BHN Spectrum Investments, LLC and Comcast Corporation, as Strategic Investor Representative (incorporated herein by reference to Exhibit 99.10 to Amendment No. 2
99.26    Form of Lock-up Agreement (incorporated herein by reference to Exhibit 99.11 to Amendment No. 4)
99.27    Form of Preemptive Rights Waiver (incorporated herein by reference to Exhibit 99.12 to Amendment No. 4)
99.28    Amendment to Equityholders’ Agreement, dated as of December 8, 2010, by and among Clearwire Corporation, Sprint HoldCo, LLC, Eagle River Holdings, LLC, Intel Capital Wireless Investment Corporation 2008A, Intel Capital Wireless Investment Corporation 2008B, Intel Capital Wireless Investment Corporation 2008C, Intel Capital Corporation, Intel Capital (Cayman) Corporation, Middlefield Ventures, Inc. and Comcast Corporation, as Strategic Investor Representative (incorporated herein by reference to Exhibit 4.11 of Clearwire Corporation’s Current Report on Form 8-K filed December 13, 2010)
99.29    Letter to Clearwire Corporation from Sprint Nextel Corporation, dated as of June 1, 2011, pursuant to Section 2.13(j) of the Equityholders’ Agreement (incorporated herein by reference to Exhibit 99.14 to Amendment No. 7)
99.30    Commitment Agreement, dated as of November 30, 2011, by and among Clearwire Corporation, Clearwire Communications LLC, Sprint HoldCo, LLC and Sprint Nextel Corporation (including the form of Note attached as Exhibit B thereto) (incorporated herein by reference to Exhibit 10.1 of Clearwire Corporation’s Current Report on Form 8-K filed December 5, 2011)
99.31    Letter Agreement, dated as of November 30, 2011, by and among Clearwire Corporation, Clearwire Communications, LLC, Sprint HoldCo, LLC and Sprint Nextel Corporation (incorporated herein by reference to Exhibit 10.2 of Clearwire Corporation’s Current Report on Form 8-K filed December 5, 2011)
99.32    Letter to Clearwire Corporation from Sprint Nextel Corporation, dated as of December 12, 2011, regarding Notice of Exercise of Preemptive Rights (incorporated herein by reference to Exhibit 99.17 to Amendment No. 8)
99.33    Investment Agreement, dated as of December 13, 2011, by and among Clearwire Corporation, Clearwire Communications LLC and Sprint HoldCo, LLC (incorporated herein by reference to Exhibit 99.18 to Amendment No. 8)
99.34    Form of 2011 Lock-Up Agreement (incorporated herein by reference to Exhibit 99.19 to Amendment No. 8)
99.35    Non-Unanimous Written Consent to Action in Lieu of Special Meeting of the Stockholders of Clearwire Corporation, dated as of December 7, 2011, executed by Sprint HoldCo, LLC, Comcast Corporation, as Strategic Investor Representative, Intel Capital Wireless Investment Corporation 2008A, Intel Capital Wireless Investment Corporation 2008B, Intel Capital Wireless Investment Corporation 2008C, Intel Capital Corporation, Intel Capital (Cayman) Corporation and Middlefield Ventures, Inc. (incorporated herein by reference to Exhibit 99.20 to Amendment No. 8)
99.36    Letter to the Comcast Corporation, Time Warner Cable Inc., Bright House Networks, LLC, Advance/Newhouse Partnership and Intel Corporation from Google Inc., dated as of February 7, 2012, pursuant to Section 5(a) of the Strategic Investor Agreement, dated as of November 28, 2008, by and among Comcast Wireless Investment I, Inc., Comcast Wireless Investment II, Inc., Comcast Wireless Investment III, Inc., Comcast Wireless Investment IV, Inc.,


   Comcast Wireless Investment V, Inc., TWC Wireless Holdings I LLC, TWC Wireless Holdings II LLC, TWC Wireless Holdings III LLC, BHN Spectrum Investments, LLC, Google Inc., Comcast Corporation, Time Warner Cable Inc. and Bright House Networks, LLC (incorporated herein by reference to Exhibit 99.21 to Amendment No. 9)
99.37    Letter to Sprint Nextel Corporation, Eagle River Holdings, LLC, Comcast Corporation, Time Warner Cable Inc., Bright House Networks, LLC, Advance/Newhouse Partnership and Intel Corporation from Google Inc., dated as of February 16, 2012, pursuant to Section 3.3 of the Equityholders’ Agreement (incorporated herein by reference to Exhibit 99.22 to Amendment No. 9)
99.38    Letter to Clearwire Corporation from Sprint Nextel Corporation, dated as of June 8, 2012, pursuant to Section 2.13(j) of the Equityholders’ Agreement (incorporated herein by reference to Exhibit 99.23 to Amendment No. 11)
99.39    Letter to Comcast Corporation and Bright House Networks, LLC from TWC Wireless Holdings I LLC, TWC Wireless Holdings II LLC and TWC Wireless Holdings III LLC, dated as of August 29 , 2012, pursuant to Section 5(a) of the Strategic Investor Agreement (incorporated herein by reference to Exhibit 99.24 to Amendment No. 12)
99.40    Request Notice to Clearwire from TWC Wireless Holdings I LLC, TWC Wireless Holdings II LLC and TWC Wireless Holdings III LLC, dated as of August 29 , 2012, pursuant to Section 3(c)(ii) and (d) of the Registration Rights Agreement (incorporated herein by reference to Exhibit 99.25 to Amendment No. 12)
99.41    Exchange Notice to Clearwire Communications LLC and Clearwire Corporation, dated as of September 4, 2012, pursuant to Section 7.9(c) of the Operating Agreement (incorporated herein by reference to Exhibit 99.26 to Amendment No. 12)
99.42    Letter to Sprint Nextel Corporation, Eagle River Holdings, LLC, Comcast Corporation, Bright House Networks, LLC and Intel Corporation from TWC Wireless Holdings I LLC, TWC Wireless Holdings II LLC and TWC Wireless Holdings III LLC, dated as of September 7, 2012, pursuant to Section 3.3 of the Equityholders’ Agreement (incorporated herein by reference to Exhibit 99.27 to Amendment No. 12)
99.43    Exchange Notice to Clearwire Communications LLC and Clearwire Corporation from Comcast Wireless Investment, LLC, dated as of September 18, 2012, pursuant to Section 7.9(c) of the Operating Agreement (incorporated herein by reference to Exhibit 99.28 to Amendment No. 13)
99.44    Interest Notice pursuant to Section 3.3 of the Equityholders’ Agreement from Eagle River Holdings, LLC dated as of October 17, 2012 (incorporated herein by reference to Exhibit 99.29 of Amendment No. 14 to Schedule 13D filed on October 18, 2012 by the Sprint Entities and the ERH Entities)
99.45    Response Letter pursuant to Section 3.3 of the Equityholders’ Agreement from Sprint HoldCo, LLC to Eagle River Holdings, LLC dated as of October 17, 2012 (incorporated herein by reference to Exhibit 99.30 of Amendment No. 14 to Schedule 13D filed on October 18, 2012 by the Sprint Entities and the ERH Entities)
99.46    Joint Filing Agreement, dated as of October 17, 2012, by and among Eagle River Holdings, LLC, Craig O. McCaw, Sprint HoldCo, LLC and Sprint Nextel Corporation (incorporated herein by reference to Exhibit 99.31 of Amendment No. 14 to Schedule 13D filed on October 18, 2012 by the Sprint Entities and the ERH Entities)
99.47    Letter to Clearwire Corporation from Sprint HoldCo, LLC pursuant to Section 3.9 of the Equityholders’ Agreement and Section 7.11 of the Operating Agreement, dated December 10, 2012*
99.48    Assignment and Assumption Agreement by SN UHC 1, Inc., dated December 11, 2012*
99.49    Assignment and Assumption Agreement by SN UHC 1, Inc., dated December 11, 2012*
99.50    Joint Filing Agreement, dated as of December 13, 2012, by and among Sprint HoldCo, LLC, SN UHC 1, Inc. and Sprint Nextel Corporation*


99.51    Agreement and Plan of Merger, dated as of December 17, 2012, by and among Sprint Nextel Corporation, Collie Acquisition Corp. and Clearwire Corporation (incorporated by reference to Exhibit 2.1 of Sprint Nextel Corporation’s Current Report on Form 8-K filed on December 18, 2012)
99.52    Irrevocable Exchange Agreement, dated as of December 17, 2012, by and among Clearwire Corporation, Sprint Nextel Corporation and Intel Capital Wireless Investment Corporation 2008A*
99.53    Consent and Agreement, dated as of December 17, 2012, by and among SOFTBANK CORP., Starburst II, Inc. and Sprint Nextel Corporation*
99.54    Voting and Support Agreement, dated as of December 17, 2012, among Clearwire Corporation and the persons named therein as stockholders of Clearwire Corporation and equityholders of Clearwire Communications, LLC, as applicable*
99.55    Agreement Regarding Right of First Offer, dated as of December 17, 2012, among Sprint Holdco, LLC, Sprint Nextel Corporation, and the persons named therein as stockholders of Clearwire Corporation and equityholders of Clearwire Communications, LLC, as applicable*
99.56    Note Purchase Agreement, dated as of December 17, 2012, by and among Clearwire Corporation, Clearwire Communications, LLC and Collie Finance, Inc., as issuers, and Sprint Nextel Corporation, as purchaser (incorporated by reference to Exhibit 10.1 of Sprint Nextel Corporation’s Current Report on Form 8-K filed on December 18, 2012)
99.57    Form of Registration Rights Agreement, among Clearwire Corporation, as parent, Clearwire Communications LLC and Clearwire Finance, Inc., as issuers, the guarantors party thereto and Sprint Nextel Corporation (included in Exhibit 99.56)
99.58    Form of Indenture, by and among the Clearwire Communications, LLC and Clearwire Finance, Inc., as issuers, the guarantors party thereto and [Wilmington Trust, National Association], as trustee (included in Exhibit 99.56)
99.59    Form of Stock Delivery Agreement, among Clearwire Communications, LLC and Clearwire Finance, Inc., as issuers, and Clearwire Corporation (included in Exhibit 99.56)
99.60    Second Amendment to Equityholders’ Agreement, dated as of December 17, 2012, by and among, Clearwire Corporation, Sprint HoldCo, LLC, SN UHC 1, Inc., Eagle River Holdings, LLC, Intel Capital Wireless Investment Corporation 2008A, Intel Capital Corporation, Intel Capital (Cayman) Corporation, Middlefield Ventures, Inc. and Comcast Corporation, as Strategic Investor Representative*
99.61    Third Amendment to Equityholders’ Agreement, dated as of December 17, 2012, by and among, Clearwire Corporation, Sprint HoldCo, LLC, SN UHC 1, Inc., Intel Capital Wireless Investment Corporation 2008A, Intel Capital Corporation, Intel Capital (Cayman) Corporation, Middlefield Ventures, Inc. and Comcast Corporation, as Strategic Investor Representative*
99.62    Letter to Clearwire Corporation from Sprint Nextel Corporation, dated as of May 20, 2013*
99.63    Second Amendment, dated as of May 21, 2013, to Agreement and Plan of Merger, dated as of December 17, 2012, by and among Sprint Nextel Corporation, Collie Acquisition Corp. and Clearwire Corporation*
99.64    Consent and Agreement, dated as of May 20, 2013, by and among SOFTBANK CORP., Starburst II, Inc. and Sprint Nextel Corporation. *
99.65    Third Amendment, dated as of June 20, 2013, to Agreement and Plan of Merger, dated as of December 17, 2012, by and among Sprint Nextel Corporation, Collie Acquisition Corp. and Clearwire Corporation (incorporated by reference to Exhibit 2.1 of Sprint Nextel Corporation’s Current Report on Form 8-K filed on June 21, 2013)
99.66    Voting and Sale Agreement, dated as of June 20, 2013, by and among Sprint Nextel Corporation, Starburst II, Inc.,


   and Mount Kellett Master Fund II-A, L.P.
99.67    Voting and Sale Agreement, dated as of June 20, 2013, by and among Sprint Nextel Corporation, Starburst II, Inc., and Highside Capital Management, L.P.
99.68    Voting and Sale Agreement, dated as of June 20, 2013, by and among Sprint Nextel Corporation, Starburst II, Inc., and Glenview Capital Management, LLC
99.69    Voting and Sale Agreement, dated as of June 20, 2013, by and among Sprint Nextel Corporation, Starburst II, Inc., and C P Management, L.L.C.
99.70    Consent and Agreement, dated as of June 20, 2013, by and among SOFTBANK CORP., Starburst II, Inc. and Sprint Nextel Corporation

 

* Previously filed
EX-99.66 2 d558039dex9966.htm EX-99.66 EX-99.66

Exhibit 99.66

Execution Copy

VOTING AND SALE AGREEMENT

THIS VOTING AND SALE AGREEMENT (this “Agreement”), dated as of June 20, 2013, is entered into among Sprint Nextel Corporation, a Kansas corporation (“Sprint”), the Person named on Schedule A hereto (the “Stockholder”), solely in its individual capacity as a stockholder of Clearwire Corporation, a Delaware corporation (“Clearwire”), and, solely for purposes of Section 9, Section 11(m) and Section 11(n) of this Agreement, Starburst II, Inc., a Delaware corporation (“Starburst”).

W I T N E S S E T H:

WHEREAS, Clearwire, Sprint and Collie Acquisition Corp., a Delaware corporation and a wholly owned subsidiary of Sprint (“Acquisition Corp.”), are parties to an Agreement and Plan of Merger, dated as of December 17, 2012 (as amended by the First Amendment to Agreement and Plan of Merger dated as of April 18, 2013 and the Second Amendment to Agreement and Plan of Merger dated as of May 21, 2013, the “Existing Merger Agreement”), whereby Acquisition Corp. will be merged with and into Clearwire (the “Merger”) with Clearwire surviving the Merger, upon the terms and subject to the conditions set forth in the Merger Agreement;

WHEREAS, Sprint has proposed to Clearwire entering into a Third Amendment to Agreement and Plan of Merger amending the Existing Merger Agreement (the “Third Amendment” and the Existing Merger Agreement as it will be so amended upon execution and delivery of the Third Amendment by all parties thereto, the “Merger Agreement”) providing for an increase in the Merger Consideration to $5.00 per share in cash, without interest, less applicable withholding taxes, and modifications to certain other terms and conditions;

WHEREAS, the Stockholder, together with funds controlled by the Stockholder, is, was as of April 2, 2013 (the “Record Date”) and at all times since the Record Date has been the sole beneficial owner and holds, held as of the Record Date and at all times since the Record Date has held sole voting power with respect to the shares of Class A common stock, par value $0.0001 per share, of Clearwire (the “Class A Common Stock” and, together with the Class B common stock, par value $0.0001 per share, of Clearwire, the “Clearwire Common Stock”), set forth opposite the Stockholder’s name on Schedule A attached hereto (all of such shares of Clearwire Common Stock being hereinafter referred to as the “Existing Clearwire Shares” and, together with any shares of Clearwire Common Stock or other voting capital stock of Clearwire and any securities convertible into or exercisable or exchangeable for shares of Clearwire Common Stock or other voting capital stock of Clearwire, in each case that the Stockholder has or acquires ownership of on or after the date hereof, as the “Clearwire Shares”); and

WHEREAS, as an inducement to the willingness of Sprint to enter into the Third Amendment, the Stockholder has agreed to vote all of its Clearwire Shares pursuant to, and in accordance with, the terms and conditions of this Agreement and to certain other matters set forth herein.


NOW, THEREFORE, in consideration of the foregoing and in consideration of the mutual covenants, promises, agreements, and releases contained herein, and for other valuable consideration, receipt of which is hereby acknowledged, and intending to be legally bound, the parties agree as follows:

1. Capitalized Terms. Capitalized terms used herein and not defined herein shall have the respective meanings ascribed to such terms in the Existing Merger Agreement or the Merger Agreement if the Third Amendment has been executed and delivered by the parties thereto.

2. Voting of Shares. (a) During the Term (as hereinafter defined), the Stockholder hereby irrevocably and unconditionally agrees that, at any annual, special or other meeting of the stockholders of Clearwire (“Clearwire Stockholders”) called for the purpose of voting upon the adoption of the Existing Merger Agreement or the Merger Agreement and the approval of the transactions contemplated by the Existing Merger Agreement or the Merger Agreement, the approval of matters subject to a vote of the Clearwire Stockholders pursuant to the Note Purchase Agreement, or the approval of any Acquisition Proposal (a “CIC Stockholders Meeting”), and at any adjournment or postponement thereof, the Stockholder will:

(i) appear in person or by proxy at each CIC Stockholders Meeting or otherwise cause all of the Clearwire Shares beneficially owned by the Stockholder at such time to be counted as present at such meeting for purposes of calculating a quorum (to the extent the Stockholder beneficially owned such shares on the record date for the CIC Stockholders Meeting);

(ii) vote (or cause to be voted) all of the Clearwire Shares beneficially owned by the Stockholder (to the extent the Stockholder beneficially owned such shares on the record date for the CIC Stockholders Meeting), in person or by proxy, (A) if the Third Amendment has been executed and delivered by the parties thereto, in favor of approving and adopting the Merger Agreement, (B) in favor of the matters to be voted upon by Clearwire Stockholders at the Parent Stockholders Meeting (as defined in the Note Purchase Agreement) pursuant to Section 7.01(c) of the Note Purchase Agreement (the “Note Issuance Required Vote”) and (C) if the Third Amendment has been executed and delivered by the parties thereto, in favor of any proposal to adjourn or postpone any CIC Stockholders Meeting to a later date (but prior to the expiration of the Term) if there are not sufficient votes for approval of such matters on the date on which such CIC Stockholders Meeting is held to vote on any of the foregoing matters (the “Covered Matters”); and

(iii) vote (or cause to be voted) all of the Clearwire Shares beneficially owned by the Stockholder at such time (to the extent the Stockholder beneficially owned such shares on the record date for the CIC Stockholders Meeting), in person or by proxy, against (A) any Acquisition Proposal (other than the Merger), (B) any action, proposal, transaction or agreement that could reasonably be expected to result in a breach of any covenant, representation or warranty or any other obligation or agreement of the Stockholder under this Agreement or, to the knowledge of the Stockholder, of Clearwire under the Merger Agreement or the Note Purchase Agreement and (C) any action, proposal, transaction or agreement that could reasonably be expected to impede, interfere with, delay, postpone,

 

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prevent, discourage, adversely affect or inhibit the timely consummation of the Merger, the issuance of the Notes (or Clearwire Common Stock or units of Clearwire Communications, LLC, a Delaware limited liability company (“Clearwire LLC”) for which such Notes will be exchangeable) pursuant to the Note Purchase Agreement or, to the knowledge of the Stockholder, the fulfillment of Sprint’s, Clearwire’s, Clearwire LLC’s or Acquisition Corp.’s conditions under the Merger Agreement or the Note Purchase Agreement or the Stockholder’s obligations under this Agreement or change in any manner the present capitalization of Clearwire or Clearwire LLC or the voting rights of any class of shares of Clearwire (including any amendments to Clearwire’s Certificate of Incorporation or Bylaws).

(b) The obligations of the Stockholder specified in Sections 2(a)(i), (ii) and (iii) shall apply whether or not the Merger or any action described above is recommended by the Board of Directors of Clearwire (or any committee thereof).

(c) Except as expressly set forth in this Agreement, the Stockholder may vote the Clearwire Shares beneficially owned by it in its discretion on all matters submitted for the vote of stockholders of Clearwire.

3. Stop Transfer Instruction; Legend. The Stockholder hereby directs Clearwire to, promptly following the date hereof, deliver written instructions to Clearwire’s transfer agent stating that the Clearwire Shares owned by the Stockholder may not be Transferred (as hereinafter defined) during the Term without the prior written consent of Sprint or except as provided in this Agreement and requesting that a legend be placed on the certificates (to the extent the Clearwire Shares are certificated) representing the Existing Clearwire Shares owned by the Stockholder as set forth below:

“The Securities represented by this certificate are subject to restrictions on transfer and may not be sold, transferred, pledged, encumbered, assigned, distributed, hypothecated, tendered or otherwise disposed of, including by way of merger, consolidation, share exchange or similar transaction, whether voluntarily or by operation of law, except in accordance with and subject to the terms and conditions of the Voting and Sale Agreement dated as of June 20, 2013, between the registered holder hereof and Sprint Nextel Corporation.”

4. No Inconsistent Agreements. The Stockholder hereby covenants and agrees that the Stockholder, except as expressly provided in this Agreement, (a) has not entered, and shall not enter at any time during the Term, into any voting agreement, voting trust or option agreement with respect to the Clearwire Shares owned by the Stockholder, (b) has not granted, and shall not grant at any time during the Term, a proxy, a consent or power of attorney with respect to a CIC Stockholders Meeting and with respect to the Clearwire Shares owned by the Stockholder, and (c) has not taken and shall not take any action with the express intention of making any representation or warranty of the Stockholder contained herein untrue or incorrect or preventing or disabling the Stockholder from performing any of its obligations under this Agreement.

 

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5. Representations and Warranties of the Stockholder. The Stockholder hereby represents and warrants to Sprint as follows:

(a) Authorization; Validity of Agreement; Necessary Action. The Stockholder (i) is duly organized, validly existing and in good standing under the Laws of the jurisdiction of its organization and (ii) has the requisite corporate or other entity power and authority to execute and deliver this Agreement, and to perform the Stockholder’s obligations hereunder and to consummate the transactions contemplated hereby. No other corporate or other entity actions or proceedings on the part of the Stockholder are necessary to authorize the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby. This Agreement has been duly executed and delivered by the Stockholder and, assuming this Agreement constitutes a valid and binding obligation of and is enforceable against Sprint, constitutes a valid and binding obligation of the Stockholder, enforceable against the Stockholder in accordance with its terms, subject to (A) bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting or relating to the enforcement of creditors’ rights generally, and (B) general equitable principles.

(b) Ownership. As of the date hereof, (i) Schedule A attached hereto sets forth the Existing Clearwire Shares beneficially owned by the Stockholder and (ii) such Existing Clearwire Shares constitute all of the shares of Clearwire Common Stock beneficially owned by the Stockholder. The Stockholder has owned all of such Existing Clearwire Shares as of and at all times since the Record Date. There are no existing agreements or arrangements between the Stockholder or any of its affiliates, on the one hand, and any other Person, on the other hand, relating to the Existing Clearwire Shares beneficially owned by the Stockholder or any of its affiliates that would, either individually or in the aggregate, prevent, delay or impair the ability of the Stockholder to perform its obligations hereunder and to consummate the transactions contemplated hereby on a timely basis. The Stockholder has and will have at all times, directly or indirectly, through the Term, sole voting power, sole power of disposition, sole power to issue instructions with respect to the matters set forth in this Agreement, and sole power to agree to all of the matters set forth in this Agreement, in each case with respect to all of the Clearwire Shares beneficially owned by the Stockholder at any closing date of the Merger or any Sale, with no limitations, qualifications or restrictions on such rights, subject to applicable federal securities laws and the terms of this Agreement. Subject to Sections 7(a) and 11(a), the Stockholder has and, until consummation of the Merger or the Sale (as defined below) by the Stockholder of the Clearwire Shares of the Stockholder, will have, good and marketable title to the Clearwire Shares owned by the Stockholder, free and clear of any security interests, liens, claims, pledges, options, rights of first refusal, agreements, limitations on voting rights, charges and encumbrances of any nature whatsoever (“Liens”), except for Liens expressly provided in this Agreement.

(c) No Violation. The execution and delivery of this Agreement by the Stockholder do not, and the performance by the Stockholder of its obligations under this Agreement will not, (i) conflict with or violate any Law applicable to the Stockholder or by which any of its assets or properties is bound, (ii) conflict with any certificate of incorporation, bylaws or other organizational documents of the Stockholder or (iii) conflict with, result in any breach of or constitute a default (or an event that with notice or lapse of time or both would

 

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become a default) under, or give to others any rights of termination, amendment, acceleration or cancellation of, or require payment under, or require redemption or repurchase of or otherwise require the purchase or sale of, or result in the creation of any Lien on, the Existing Clearwire Shares owned by the Stockholder pursuant to, any note, bond, mortgage, indenture, contract, agreement, lease, license, permit, franchise or other instrument or obligation to which the Stockholder is a party or by which the Stockholder or any of the Existing Clearwire Shares owned by the Stockholder is bound, except for any of the foregoing as would not, either individually or in the aggregate, prevent or delay or impair the ability of the Stockholder to perform its obligations hereunder or to consummate the transactions contemplated hereby on a timely basis.

(d) Consents and Approvals. The execution and delivery of this Agreement by the Stockholder do not, and the performance by the Stockholder of its obligations under this Agreement will not, require the Stockholder to obtain any consent, approval, authorization or permit of, or to make any filing (other than filings under the Securities Exchange Act of 1934, as amended (the “Exchange Act”)) with or notification to, any Governmental Entity based on any applicable Law, except for any of the foregoing as would not, either individually or in the aggregate, prevent or delay or impair the ability of the Stockholder to perform its obligations hereunder or to consummate the transactions contemplated hereby on a timely basis.

(e) Absence of Litigation. As of the date hereof, there is no suit, action, investigation or proceeding pending or, to the knowledge of the Stockholder, threatened against the Stockholder before or by any Governmental Entity that would impair the ability of the Stockholder to perform its obligations hereunder or to consummate the transactions contemplated hereby on a timely basis.

(f) Reliance by Sprint. The Stockholder understands, acknowledges and agrees that Sprint is proposing and, if executed and delivered by Clearwire, entering into the Third Amendment in reliance upon the Stockholder’s execution and delivery of this Agreement. The Stockholder understands and acknowledges that the Existing Merger Agreement governs the terms of the Merger and the other matters specified therein and if the Third Amendment is executed and delivered by the parties thereto, the Merger Agreement will govern the terms of the Merger and the other matters specified therein.

6. Representations and Warranties of Sprint. Sprint hereby represents and warrants to the Stockholder as follows:

(a) Authorization; Validity of Agreement; Necessary Action. It (i) is duly organized, validly existing and in good standing under the Laws of the jurisdiction of its organization and (ii) has the corporate power and authority to execute and deliver this Agreement, and to perform its obligations hereunder and to consummate the transactions contemplated hereby. No other actions or proceedings on its part are necessary to authorize the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby. This Agreement has been duly executed and delivered by it and, assuming this Agreement constitutes a valid and binding obligation of and is enforceable against the Stockholder, this

 

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Agreement constitutes its valid and binding obligation, enforceable against it in accordance with the terms hereof, subject to (A) bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting or relating to the enforcement of creditors’ rights generally, and (B) general equitable principles.

(b) No Violation. Its execution and delivery of this Agreement does not, and its performance of its obligations under this Agreement will not, (i) conflict with or violate any Law applicable to it or by which any of its assets or properties is bound, (ii) conflict with its certificate of incorporation or bylaws or (iii) conflict with, result in any breach of or constitute a default (or an event that with notice or lapse of time or both would become a default) under, or give to others any rights of termination, amendment, acceleration or cancellation of, or require payment under, any note, bond, mortgage, indenture, contract, agreement, lease, license, permit, franchise or other instrument or obligation to which it is a party or by which it is bound, except for any of the foregoing as would not, either individually or in the aggregate, prevent or delay or impair its ability to perform its obligations hereunder or to consummate the transactions contemplated hereby on a timely basis.

(c) Consents and Approvals. Its execution and delivery of this Agreement does not, and, except for the receipt of the FCC Consent, its performance of its obligations under this Agreement will not, require it to obtain any consent, approval, authorization or permit of, or to make any filing with or notification to, any Governmental Entity based on any applicable Law, except for any of the foregoing as would not, either individually or in the aggregate, prevent or delay or impair its ability to perform its obligations hereunder or to consummate the transactions contemplated hereby on a timely basis.

7. Covenants of the Stockholder. The Stockholder hereby covenants and agrees that:

(a) Transfers. Except as expressly contemplated hereby or by the Existing Merger Agreement or the Merger Agreement or as required by a court of competent jurisdiction or by any applicable Law, during the time period from the date hereof through the expiration of the Term, the Stockholder shall not (directly or indirectly), sell, transfer, pledge, encumber, assign, distribute, hypothecate, tender or otherwise dispose of, including by way of merger, consolidation, share exchange or similar transaction, whether voluntarily or by operation of law (collectively, a “Transfer”), or enforce the provisions of any redemption, share purchase or sale, recapitalization or other agreement with Clearwire or any other person, or enter into any contract, option or other arrangement or understanding with respect to the voting of or any Transfer (whether by actual disposition or effective economic disposition due to hedging, cash settlement or otherwise) of, any of the Existing Clearwire Shares beneficially owned by the Stockholder, any Clearwire Shares acquired by the Stockholder after the date hereof, any securities exercisable or exchangeable for or convertible into shares of Clearwire Common Stock, any other capital stock of Clearwire or any interest in any of the foregoing. Notwithstanding the foregoing, upon prior written notice to Sprint containing the name of the transferee and the number of Clearwire Shares Transferred, the Stockholder shall be permitted to Transfer Clearwire Shares beneficially owned by the Stockholder to (i) any member of the group disclosed in the Stockholder’s

 

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Statement on Schedule 13D to be filed with the SEC disclosing this Agreement, or to any controlled Affiliate of any such member, provided that such member is a party to a voting agreement with Sprint of even date herewith substantially identical to this Agreement (and such member certifies to Sprint’s reasonable satisfaction that such transfer is to a controlled Affiliate of such member) or (ii) to any Affiliate of the Stockholder, provided such Affiliate agrees in writing with Sprint to be bound by the terms of this Agreement pursuant to a joinder or other documentation reasonably satisfactory to Sprint. No such Transfer to any such Affiliate or member or controlled Affiliate of such member shall relieve the Stockholder of any of its obligations pursuant to this Agreement.

(b) Stock Dividends and Distributions. In case of a stock dividend or distribution, or any change in Clearwire Common Stock by reason of any stock dividend or other distribution of stock, split-up, recapitalization, reverse stock split, reclassification, reincorporation, combination, exchange of shares or the like, the term “Clearwire Shares” shall be deemed to refer to and include the Clearwire Shares as well as all such stock dividends and stock distributions and any securities into which or for which any or all of the Clearwire Shares may be changed or exchanged or that are received in any such transaction.

(c) Additional Shares. Until the expiration of the Term, the Stockholder shall notify Sprint promptly (and in any event within two Business Days) in writing of the number of any additional Clearwire Shares acquired by the Stockholder, if any, after the date hereof.

(d) Prohibited Actions. The Stockholder agrees that, until the expiration of the Term, the Stockholder shall not, and shall not knowingly permit any of the Stockholder’s representatives or agents to, (i) engage in any conduct described in Section 4.3(b)(i), Section 4.3(b)(ii) or Section 4.3(b)(iii) of the Existing Merger Agreement (or such sections of the Merger Agreement if the Third Amendment is executed and delivered by the parties thereto) as it relates to an Acquisition Proposal (other than the Merger) or (ii) exercise, assert or perfect, or attempt to exercise, assert or perfect, any rights under Section 262 of the DGCL with respect to the Merger.

8. Sale of Clearwire Shares upon Termination of Merger Agreement.

(a) Unless the Effective Time has previously occurred, upon the earlier of (i) October 15, 2013 (the “End Date”) and (ii) the termination of the Merger Agreement in accordance with its terms, Sprint shall promptly deliver notice thereof to the Stockholder (the “Termination Notice”), provided that, if, after using all reasonable efforts to obtain all necessary governmental approvals and third party consents to permit the Sale (as defined below), Sprint has not obtained such approvals by the End Date, Sprint shall be permitted to extend the End Date to the earlier of (A) two Business Days after the date Sprint obtains such governmental approvals or third party consents and (B) November 28, 2013. Upon the earlier of (i) the End Date and (ii) receipt of such Termination Notice and in accordance with this Section 8, Sprint and the Stockholder shall consummate the purchase by Sprint of all of the Existing Clearwire Shares set forth opposite the Stockholder’s name on Schedule A attached hereto and, in Sprint’s sole discretion, all or any portion of any additional Clearwire Shares then beneficially owned by the Stockholder, at a cash sale price per

 

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Clearwire Share equal to the greatest of (A) the Merger Consideration, (B) the highest price per share of Clearwire Common Stock paid or to be paid in the Merger (or in any similar merger, consolidation or similar transaction involving Sprint or one or more of its Affiliates and Clearwire consummated or entered into prior to the End Date or the date of delivery of the Termination Notice) or (C) $5.00, without interest (the “Sale”). Each of Sprint and the Stockholder agrees that it will (a) consummate the applicable Sale in accordance with this Section 8 and (b) provide any consents, approvals or other documents reasonably necessary to consummate such Sale.

(b) The closing of the Sale with respect to the Stockholder will take place at a location designated by Sprint and, if not on the End Date as provided in Section 8(a), on a date designated by Sprint that is no later than three Business Days after delivery of the Termination Notice to the Stockholder provided that (i) if Sprint determines in its reasonable discretion that any governmental approvals are required to consummate the Sale, then the closing of the Sale will take place on the earlier of (A) three Business Days following the receipt of such governmental approvals and (B) November 28, 2013, and (ii) the Stockholder shall be permitted to delay the consummation of the Sale, but not beyond December 21, 2013, to the extent necessary to not incur liability under the short-swing profit rules under Section 16(b) of the Exchange Act and the rules and regulations promulgated thereunder. At the closing of any Sale, the Stockholder will deliver to Sprint (a) if the Clearwire Shares to be sold are certificated, a certificate or certificates for the Clearwire Shares to be sold, in each case accompanied by stock powers with signatures guaranteed and all necessary stock transfer taxes paid and stamps affixed, if necessary, or (b) if the Clearwire Shares to be sold are not certificated, proper transfer instructions from the Stockholder or the Stockholder’s lawfully constituted attorney-in-fact, accompanied by evidence that all necessary stock transfer taxes have been paid and evidence of compliance with appropriate procedures for transferring shares in uncertificated form, in either case against receipt of the purchase price therefore by certified or official bank check or by wire transfer of immediately available funds.

(c) Sprint’s right to acquire Clearwire Shares pursuant to this Section 8 may be exercised, at Sprint’s option, by any direct or indirect wholly-owned subsidiary of Sprint, provided no such delegation to any such Person shall relieve Sprint of its obligations hereunder. If Sprint desires for a direct or indirect wholly-owned subsidiary of Sprint to acquire Clearwire Shares pursuant to this Section 8, Sprint will notify the Stockholder of such in the Termination Notice.

(d) If the Sale occurs and at any time prior to the one-year anniversary of the consummation of the Sale, Sprint or any of its Affiliates acquires all, but not less than all, of the outstanding shares of Clearwire Common Stock not held by Sprint or any of its Affiliates, whether by merger, tender offer, purchase or other similar transaction (a “Subsequent Transaction”) at a price per share of Clearwire Common Stock in excess of the price paid in the Sale, then within five Business Days of the consummation of any Subsequent Transaction, Sprint shall pay or cause to be paid to the Stockholder, for each Clearwire Share purchased in the Sale, the difference between the price per share of Clearwire Common Stock paid in the Sale and the price per share of Clearwire Common

 

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Stock paid in the Subsequent Transaction. In the event that the consideration paid by Sprint or any such Affiliate consists in whole or in part of Sprint common stock or other securities of Sprint (“Reference Securities”), the value of such Reference Securities that are publicly-traded shall be determined by the average of the closing price of such Reference Securities for the five trading days immediately preceding the closing of the Subsequent Transaction. If such Reference Securities are not publicly-traded, the value shall be determined in good faith by the board of directors of Sprint or any committee thereof. For the avoidance of doubt, any award in excess of the price paid in the Sale in an appraisal proceeding in the State of Delaware shall not entitle the Stockholder to any payment pursuant to this Section 8(d).

9. Releases.

(a) The Stockholder, for the benefit of Sprint and Starburst and each of Sprint’s and Starburst’s controlling persons, officers, directors, stockholders, agents, affiliates, subsidiaries, employees, attorneys, advisors and assigns, past, present and future, in their capacity as such (Sprint and Starburst and each such person being a “Company Released Person”), hereby forever fully, unconditionally and irrevocably releases, waives and forever discharges, and covenants not to sue, any of the Company Released Persons for any and all claims, causes of action, actions, judgments, liens, debts, contracts, indebtedness, damages, losses, liabilities, rights, interests and demands of whatsoever kind or character (collectively, “Claims”) based on any event, fact, act, omission, or failure to act by the Company Released Persons, or any of them, whether known or unknown, occurring or existing prior to the execution of this Agreement, and arising out of or related to the Merger or the Merger Agreement and the Note Purchase Agreement and the transactions contemplated thereby; provided, however, that this waiver and release and covenant not to sue shall not include any Claims arising out of or related to any obligations under, or breach of, this Agreement.

(b) Each of Sprint and Starburst, for the benefit of the Stockholder and its controlling persons, officers, directors, stockholders, agents, affiliates, subsidiaries, employees, attorneys, advisors and assigns, past, present and future, in their capacity as such (each such person being a “Stockholder Released Person”), hereby forever fully, unconditionally and irrevocably releases, waives and forever discharges, and covenants not to sue, any of the Stockholder Released Persons, for any Claim based on any event, fact, act, omission or failure to act by such Stockholder Released Person, whether known or unknown, occurring or existing prior to the execution of this Agreement, and arising out of or related to the Merger or the Merger Agreement and the Note Purchase Agreement and the transactions contemplated thereby; provided, however, that this waiver and release and covenant not to sue shall not include any Claims arising out of or related to any obligations under, or breach of, this Agreement.

(c) It is the intention of the parties that the releases set forth above in subsections (a) and (b) of this Section 9 shall be effective as a bar to any and all matters released herein. In furtherance and not in limitation of such intention, the release described herein shall be, and shall remain in effect as, a full and complete release,

 

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notwithstanding the discovery or existence of any additional or different facts or claims. It is expressly understood and agreed that this Agreement is intended to cover and does cover not only all known facts and/or claims but also any further facts and/or claims not now known, suspected or anticipated, but which may later develop or should be discovered, including all the effects and consequences thereof.

(d) The foregoing releases shall bind the heirs, personal representatives, successors and assigns of each party, and inure to the benefit of each party and each party’s predecessors, successors, assigns, shareholders, directors, officers, partners, employees, agents subsidiaries and affiliates.

(e) The Stockholder (with respect to Section 9(a)) and Sprint and Starburst (with respect to Section 9(b)) (collectively, the “Releasors”) (i) represents, warrants and acknowledges that such Releasor has been fully advised by his, her or its attorney of the contents of Section 1542 of the Civil Code of the State of California, and (ii) hereby expressly waives the benefits thereof and any rights such Releasor may have thereunder. Section 1542 of the Civil Code of the State of California provides as follows:

“A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor.”

9.A. Indemnification.

(a) Sprint agrees to indemnify, defend and hold harmless the Stockholder and its Affiliates and its and its Affiliates’ respective officers, directors, employees, members, partners, equityholders, agents and each other Person, if any, controlling it or any of its Affiliates (each an “Indemnified Person”) from and against any and all losses, claims, suits, damages, liabilities and expenses, joint or several, to which any such Indemnified Person may become subject under applicable Law or otherwise relating to, arising out of or in connection with this Agreement or its performance hereunder, or any Proceeding relating to the foregoing regardless of whether any of such Indemnified Persons is a party thereto, and to reimburse each Indemnified Person for any documented reasonable legal or other expenses as they are incurred in connection with investigating, preparing, pursuing, responding to or defending any of the foregoing.

(b) Promptly after receipt by an Indemnified Person of notice of the commencement of any Proceedings, such Indemnified Person shall, if a claim is to be made hereunder against Sprint in respect thereof, notify Sprint in writing of the commencement thereof; provided that (i) the omission to so notify Sprint shall not relieve Sprint from any liability or obligation which it may have hereunder except to the extent Sprint has been actually and materially prejudiced by such failure and (ii) the omission to so notify Sprint shall not relieve it from any liability which it may have to an Indemnified Person otherwise than on account of these indemnity provisions. In case any such Proceedings are brought against any Indemnified Person and it notifies Sprint of the commencement thereof, Sprint shall be entitled to participate therein and, to the extent that it may elect by written notice delivered to the Indemnified Person, to assume the

 

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defense thereof with counsel reasonably satisfactory to the Stockholder; provided that if the defendants in any such Proceedings include both the Indemnified Person and Sprint and the Indemnified Person with the advice of counsel shall have reasonably concluded that there may be legal defenses available to it which are different from or additional to those available to Sprint and that representation of both Sprint and the Indemnified Person would be inappropriate or inadvisable due to actual or potential differing interests between Sprint and such Indemnified Person, the Indemnified Person shall have the right to select separate counsel not reasonably disapproved by Sprint to assert such legal defenses and to otherwise participate in the defense of such Proceedings on behalf of such Indemnified Person and Sprint shall not have the right to assume the defense thereof. Upon receipt of notice from Sprint to such Indemnified Person of its election to so assume the defense of such Proceedings and approval by the Indemnified Person of counsel, Sprint shall not be liable to such Indemnified Person for expenses incurred by the Indemnified Person in connection with the defense thereof (other than reasonable costs of investigation and of monitoring such Proceeding) unless (i) the Indemnified Person shall have employed separate counsel in connection with the assertion of legal defenses in accordance with the proviso to the immediately preceding sentence (it being understood, however, that Sprint shall not be liable for the expenses of more than one separate counsel (in addition to any local counsel), representing the Indemnified Persons who are parties to such Proceedings), (ii) Sprint shall not have employed counsel reasonably satisfactory to Stockholder to represent the Indemnified Person within a reasonable time after notice of commencement of the Proceedings or (iii) Sprint has authorized in writing the employment of counsel for the Indemnified Person.

(c) Sprint shall not be liable for any settlement of any Proceedings effected without its written consent (which consent shall not be unreasonably withheld), but if settled with its written consent or if there be a final judgment for the plaintiff in any such Proceedings, Sprint agrees to indemnify and hold harmless each Indemnified Person from and against any and all losses, claims, damages, liabilities and expenses by reason of such settlement or judgment. Notwithstanding the immediately preceding sentence, if at any time an Indemnified Person shall have requested Sprint to reimburse such Indemnified Person for legal or other expenses in connection with investigating, responding to or defending any Proceedings, Sprint shall be liable for any settlement of any Proceedings effected without its written consent if (i) such settlement is entered into more than 60 days after receipt by Sprint of such request for reimbursement and (ii) Sprint shall not have reimbursed such Indemnified Person in accordance with such request prior to the date of such settlement. Sprint shall not, without the prior written consent of Stockholder, effect any settlement of any pending or threatened Proceedings in respect of which indemnity could have been sought hereunder by an Indemnified Person unless such settlement (a) includes an unconditional release of such Indemnified Person in form and substance satisfactory to such Indemnified Person from all liability on claims that are the subject matter of such Proceedings, (b) does not include a statement as to an admission of fault, culpability or a failure to act by or on behalf of any such Indemnified Person, and (c) does not impose any restriction whatsoever on any Indemnified Person.

 

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(d) Notwithstanding any other provision of this Agreement, Sprint shall not be obligated pursuant to the terms of this Agreement:

(i) to indemnify with respect to claims initiated or brought voluntarily by an Indemnified Person and not by way of defense, except with respect to Proceedings brought to establish or enforce a right to indemnification under this Agreement; or

(ii) to indemnify an Indemnified Person for the payment of profits arising from the purchase and sale of securities in violation of Section 16(b) of the Securities Exchange Act of 1934, as amended, or any similar successor statute.

(e) In the event of payment under these indemnity provisions, Sprint shall be subrogated to the extent of such payment to all of the rights of recovery of an Indemnified Person, who shall execute all documents required and shall do all acts that may be necessary to secure such rights and to enable Sprint effectively to bring suit to enforce such rights.

10. [Intentionally omitted]

11. Miscellaneous.

(a) Termination. This Agreement shall terminate upon the earliest to occur of: (i) the Effective Time; (ii) the consummation of all of the Sales pursuant to this Agreement; and (iii) the written agreement of the Stockholder and Sprint; provided, however, that the Stockholder shall have the right to terminate this Agreement as to itself by written notice to Sprint if the Third Amendment is executed and delivered by the parties thereto and thereafter the terms of the Merger Agreement are amended or modified to reduce the amount of the Merger Consideration or change the form of the Merger Consideration. With respect to the Stockholder, the period from the date of this Agreement up to and through the termination of this Agreement in accordance with the foregoing is referred to herein as the “Term” (it being understood, for the avoidance of doubt, that the term “Term” shall be determined on a Stockholder-by-Stockholder basis). Notwithstanding the foregoing, however, (i) Sections 8(d), 9, 9A and 11(c) through 11(q) shall not terminate and shall remain in full force and effect after termination of this Agreement and no termination of this Agreement shall relieve any of the parties hereto from the consequences of any breach of this Agreement by such party prior to the termination of this Agreement, and (ii) if by 5:00 p.m. EDT on June 20, 2013, Clearwire shall not have executed and delivered the Third Amendment, this Agreement shall automatically terminate without further action by the parties hereto.

(b) Further Assurances. From time to time, (i) at Sprint’s request and without further consideration, the Stockholder shall execute and deliver such additional documents and take all such further action as may be reasonably necessary (without adverse consequences to the Stockholder) to consummate the transactions contemplated by this Agreement and (ii) at the Stockholder’s request and without further consideration, Sprint shall execute and deliver such additional documents and take all such further action as may be reasonably necessary

 

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(without adverse consequences to it) to consummate the transactions contemplated by this Agreement.

(c) No Ownership Interest. Without limiting any rights of Sprint hereunder, and except in the case of the consummation of the Sales, all rights, ownership and economic benefits of and relating to the Clearwire Shares shall remain vested in and belong to the Stockholder, and Sprint shall have no authority to exercise any power or authority to direct the Stockholder in the voting of any of the Clearwire Shares, except in each case as otherwise provided herein.

(d) Expenses. All costs and expenses (including legal fees) incurred by Sprint in connection with the preparation and negotiation of this Agreement shall be paid by Sprint. Sprint shall promptly following the request from time to time by the Stockholder reimburse the Stockholder for its documented (consisting of only invoices and not supporting detail) expenses (including fees and expenses of counsel) incurred since December 17, 2012 in connection with or arising out of the transactions contemplated by the Merger Agreement or other publicly-announced offers to acquire Clearwire, and the negotiation, execution and delivery and performance of this Agreement, and filings with the SEC, provided that Sprint’s reimbursement obligation pursuant to this Section 11(d) and Section 11(d) of each other voting agreement executed as of the date hereof by members of the Stockholder’s 13D (the “13D”) filing group shall not exceed $1,000,000 in the aggregate.

(e) Notices; Designated Representative. All notices or other communications hereunder shall be in writing and shall be deemed given if delivered personally, sent by nationally recognized overnight courier (providing proof of delivery) or mailed by prepaid registered or certified mail (return receipt requested) or sent by facsimile transmission (providing confirmation of such facsimile transmission) addressed as follows:

if to Sprint to:

Sprint Nextel Corporation

6200 Sprint Parkway

Overland Park, Kansas 66251

Attention:         General Counsel

Fax:     (913) 794-1432

with required copies to (which shall not constitute notice):

King & Spalding LLP

1180 Peachtree Street, N.E.

Atlanta, Georgia 30309

Attention:         Michael J. Egan

Fax: (404) 572-5100

Skadden, Arps, Slate, Meagher & Flom LLP

Four Times Square

New York, NY 10036

 

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Attention:           Thomas H. Kennedy   
  Jeremy D. London   
Fax: (212) 735-2000   

if to the Stockholder, to the address set forth on the Stockholder’s signature page hereto, with a copy to (which shall not constitute notice) to such other person as noted on such signature page;

or as to any addressee to such other address as shall be furnished in writing by such addressee, and any such notice or communication shall be deemed to have been given as of the date received by the addressee as provided above; provided that any notice received by facsimile transmission or otherwise at the addressee’s location on any Business Day after 5:00 p.m. (addressee’s local time) shall be deemed to have been received by such addressee at 9:00 a.m. (addressee’s local time) on the next Business Day.

(f) Interpretation. The words “hereof,” “herein” and “hereunder” and words of similar import when used in this Agreement shall refer to this Agreement as a whole and not to any particular provision of this Agreement, and Section references are to this Agreement unless otherwise specified. Whenever the words “include,” “includes” or “including” are used in this Agreement, they shall be deemed to be followed by the words “without limitation”. Definitions used herein are applicable to the singular as well as the plural forms of such terms and pronouns shall include the corresponding masculine, feminine or neuter forms.

(g) Counterparts. This Agreement may be executed in two or more counterparts, all of which shall be considered one and the same agreement and shall become effective when counterparts have been signed by each of the parties and delivered to the other parties, it being understood that all parties need not sign the same counterpart. This Agreement may be executed and delivered by means of facsimile transmission or e-mailed signature pages, and the parties adopt any signatures so received as original signatures of the parties.

(h) Entire Agreement. This Agreement, together with the Merger Agreement as applicable, constitutes the entire agreement and supersedes all prior agreements and understandings, both written and oral, among the parties with respect to the subject matter hereof.

(i) Governing Law. This Agreement shall be governed by and construed in accordance with the Laws of the State of Delaware, without regard to principles of conflicts of law thereof.

(j) Venue. The parties (i) agree that any suit, action or proceeding arising out of or relating to this Agreement or the transactions contemplated hereby will be brought solely in the state or federal courts of the State of Delaware, (ii) consent to the exclusive jurisdiction of each such court in any suit, action or proceeding relating to arising out of this Agreement or the transactions contemplated hereby and (iii) waive any objection that it may have to the laying of venue in any such suit, action or proceeding in any such court.

 

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(k) Service of Process. Each party irrevocably consents to service of process in the manner provided for the giving of notices pursuant to this Agreement. Nothing in this Agreement will affect the right of a party to serve process in another manner permitted by Law.

(l) Waiver of Jury Trial. EACH PARTY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY ACTION, SUIT OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT, AND WHETHER MADE BY CLAIM, COUNTERCLAIM, THIRD PARTY CLAIM OR OTHERWISE.

(m) Amendment; Waiver. This Agreement may not be amended except by an instrument in writing signed on behalf of (i) the Stockholder and (ii) Sprint; provided that none of Section 9 of this Agreement, this Section 11(m) or Section 11(n) of this Agreement may be amended without an instrument in writing signed on behalf of Starburst. Each party may only waive any right of such party hereunder by an instrument in writing signed by such party and delivered to the other party or parties that are the intended beneficiary or beneficiaries of such waiver. If Sprint shall offer to amend or modify any voting agreement executed as of the date hereof with any member of the Stockholders’ 13D filing group, Sprint shall offer to make the same amendments or modifications to this Agreement.

(n) Specific Performance. Sprint acknowledges and agrees that the Stockholder would be damaged irreparably in the event any of the provisions of this Agreement are not performed in accordance with their specific terms or otherwise are breached. Accordingly, Sprint agrees that the Stockholder shall be entitled, without the necessity of posting any bond or security, any requirement for which is hereby waived by all parties hereto, to seek an injunction or injunctions to prevent breaches of the provisions of this Agreement and to enforce specifically this Agreement and the terms and provisions hereof, this being in addition to any other remedy to which the Stockholder shall be entitled at law or in equity. The Stockholder acknowledges and agrees that Sprint (and Starburst, with respect to the provisions hereof applicable to it) would be damaged irreparably in the event any of the provisions of this Agreement are not performed in accordance with their specific terms or otherwise are breached. Accordingly, the Stockholder agrees that Sprint (and Starburst, with respect to the provisions hereof applicable to it) shall be entitled, without the necessity of posting any bond or security, any requirement for which is hereby waived by all parties hereto, to seek an injunction or injunctions to prevent breaches of the provisions of this Agreement and to enforce specifically this Agreement and the terms and provisions hereof, this being in addition to any other remedy to which Sprint shall be entitled at law or in equity.

(o) Public Announcement; Disclosure. No Stockholder shall issue any press releases or otherwise make any public statements with respect to the transactions contemplated herein without the prior written consent of Sprint, except that (i) a Stockholder may, without the prior consent of Sprint, issue or cause the publication of any press release or other public announcement (including an amendment to the 13D) to the extent that so doing is required by Law and (ii) the Stockholder will, upon the request of Sprint, confirm

 

15


publicly that it has voted its Clearwire Shares in favor of the adoption of the Merger Agreement. The Stockholder hereby authorizes Sprint and Starburst to publish and disclose in any announcement or disclosure the execution of this Agreement and the transactions contemplated by this Agreement (including the nature of its commitments, arrangements and understandings under this Agreement). Each party will reasonably consult with the other parties hereto with respect to any proposed public announcement, including any 13D regarding the transactions contemplated by this Agreement.

(p) Severability. Any term or provision of this Agreement that is invalid or unenforceable in any situation in any jurisdiction shall not affect the validity or enforceability of the remaining terms and provisions hereof or the validity or enforceability of the offending term or provision in any other situation or in any other jurisdiction. If the final judgment of a court of competent jurisdiction declares that any term or provision hereof is invalid or unenforceable, the parties agree that the court making the determination of invalidity or unenforceability shall have the power to delete specific words or phrases, or to replace any invalid or unenforceable term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable term or provision, and this Agreement shall be enforceable as so modified after the expiration of the time within which the judgment may be appealed.

(q) Assignment; Third Party Beneficiaries. Neither this Agreement nor any of the rights, interests or obligations of any party hereunder shall be assigned by such party (whether by operation of law or otherwise) without the prior written consent of the other party; provided, however, that Sprint shall be permitted to transfer its rights hereunder to any affiliate of Sprint, so long as Sprint continues to be liable for its obligations under this Agreement. Subject to the preceding sentence, this Agreement will be binding upon, inure to the benefit of and be enforceable by the parties and their respective heirs, successors and permitted assigns. This Agreement is not intended to confer any rights or remedies hereunder upon any person or entity other than (i) the parties hereto and (ii) with respect to Section 9 of this Agreement, the Company Released Persons and the Stockholder Released Persons.

(r) Ownership of Shares. Any obligation, covenant, undertaking or agreement of the Stockholder under this Agreement shall include an obligation, covenant, undertaking and agreement of the Stockholder to cause each of its controlled Affiliates to the extent such controlled Affiliates own or beneficially own Clearwire Shares to fully comply with such obligation, covenant, undertaking and agreement of such controlled Affiliate as if it were a party hereto. In the event that any controlled Affiliate of the Stockholder, rather than the Stockholder, owns Clearwire Shares, then so long as the Stockholder causes such controlled Affiliate to fully comply with all the Stockholder’s obligations, covenants, undertakings and agreements set forth in this Agreement with respect to such Clearwire Shares, and such controlled Affiliate does so fully comply with all of the obligations, covenants, undertakings and agreements set forth in this Agreement, all the representations, warranties, covenants and agreements of the Stockholder set forth in this Agreement with respect to such Clearwire Shares shall be deemed to be accurate or to have been duly complied with by the Stockholder, as the case may be. If any controlled Affiliate of the Stockholder does

 

16


not fully comply with the Stockholder’s obligations, covenants, undertakings and agreements set forth in this Agreement, the Stockholder shall be liable for any such non-compliance.

[Remainder of Page Intentionally Left Blank]

 

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IN WITNESS WHEREOF, each of the parties have signed or have caused this Agreement to be signed by their respective officers or other authorized persons thereunto duly authorized as of the date first above written.

 

SPRINT NEXTEL CORPORATION
By:  

/s/ Charles Wunsch

  Name:   Charles Wunsch
  Title:   General Counsel, Senior Vice President, Corporate Secretary
STARBURST II, INC. (solely for the purposes of Section 9, Section 11(m) and Section 11(n))
By:  

/s/ Ronald D. Fisher

  Name:   Ronald D. Fisher
  Title:   President


STOCKHOLDER:
MOUNT KELLETT MASTER FUND II-A, L.P.
By:  

Mount Kellett Capital Partners GP II, LLC

Its General Partner

By:  

JDFR

  Authorized Signatory

with required copies to (which shall not constitute notice):

Sidley Austin LLP

787 Seventh Avenue

New York, NY 10019

Fax: 212-839-5599

Attn: Scott M. Freeman


Schedule A

Existing Clearwire Shares

 

Name of Stockholder

  

Number of Existing Clearwire Shares Beneficially Owned

Mount Kellett Master Fund II-A, L.P.    53,188,166 shares of Class A Common Stock
EX-99.67 3 d558039dex9967.htm EX-99.67 EX-99.67

Exhibit 99.67

Execution Copy

VOTING AND SALE AGREEMENT

THIS VOTING AND SALE AGREEMENT (this “Agreement”), dated as of June 20, 2013, is entered into among Sprint Nextel Corporation, a Kansas corporation (“Sprint”), the Person named on Schedule A hereto (the “Stockholder”), solely in its individual capacity as a stockholder of Clearwire Corporation, a Delaware corporation (“Clearwire”), and, solely for purposes of Section 9, Section 11(m) and Section 11(n) of this Agreement, Starburst II, Inc., a Delaware corporation (“Starburst”).

W I T N E S S E T H:

WHEREAS, Clearwire, Sprint and Collie Acquisition Corp., a Delaware corporation and a wholly owned subsidiary of Sprint (“Acquisition Corp.”), are parties to an Agreement and Plan of Merger, dated as of December 17, 2012 (as amended by the First Amendment to Agreement and Plan of Merger dated as of April 18, 2013 and the Second Amendment to Agreement and Plan of Merger dated as of May 21, 2013, the “Existing Merger Agreement”), whereby Acquisition Corp. will be merged with and into Clearwire (the “Merger”) with Clearwire surviving the Merger, upon the terms and subject to the conditions set forth in the Merger Agreement;

WHEREAS, Sprint has proposed to Clearwire entering into a Third Amendment to Agreement and Plan of Merger amending the Existing Merger Agreement (the “Third Amendment” and the Existing Merger Agreement as it will be so amended upon execution and delivery of the Third Amendment by all parties thereto, the “Merger Agreement”) providing for an increase in the Merger Consideration to $5.00 per share in cash, without interest, less applicable withholding taxes, and modifications to certain other terms and conditions;

WHEREAS, the Stockholder, together with funds controlled by the Stockholder, is, was as of April 2, 2013 (the “Record Date”) and at all times since the Record Date has been the sole beneficial owner and holds, held as of the Record Date and at all times since the Record Date has held sole voting power with respect to the shares of Class A common stock, par value $0.0001 per share, of Clearwire (the “Class A Common Stock” and, together with the Class B common stock, par value $0.0001 per share, of Clearwire, the “Clearwire Common Stock”), set forth opposite the Stockholder’s name on Schedule A attached hereto (all of such shares of Clearwire Common Stock being hereinafter referred to as the “Existing Clearwire Shares” and, together with any shares of Clearwire Common Stock or other voting capital stock of Clearwire and any securities convertible into or exercisable or exchangeable for shares of Clearwire Common Stock or other voting capital stock of Clearwire, in each case that the Stockholder has or acquires ownership of on or after the date hereof, as the “Clearwire Shares”); and

WHEREAS, as an inducement to the willingness of Sprint to enter into the Third Amendment, the Stockholder has agreed to vote all of its Clearwire Shares pursuant to, and in accordance with, the terms and conditions of this Agreement and to certain other matters set forth herein.


NOW, THEREFORE, in consideration of the foregoing and in consideration of the mutual covenants, promises, agreements, and releases contained herein, and for other valuable consideration, receipt of which is hereby acknowledged, and intending to be legally bound, the parties agree as follows:

1. Capitalized Terms. Capitalized terms used herein and not defined herein shall have the respective meanings ascribed to such terms in the Existing Merger Agreement or the Merger Agreement if the Third Amendment has been executed and delivered by the parties thereto.

2. Voting of Shares. (a) During the Term (as hereinafter defined), the Stockholder hereby irrevocably and unconditionally agrees that, at any annual, special or other meeting of the stockholders of Clearwire (“Clearwire Stockholders”) called for the purpose of voting upon the adoption of the Existing Merger Agreement or the Merger Agreement and the approval of the transactions contemplated by the Existing Merger Agreement or the Merger Agreement, the approval of matters subject to a vote of the Clearwire Stockholders pursuant to the Note Purchase Agreement, or the approval of any Acquisition Proposal (a “CIC Stockholders Meeting”), and at any adjournment or postponement thereof, the Stockholder will:

(i) appear in person or by proxy at each CIC Stockholders Meeting or otherwise cause all of the Clearwire Shares beneficially owned by the Stockholder at such time to be counted as present at such meeting for purposes of calculating a quorum (to the extent the Stockholder beneficially owned such shares on the record date for the CIC Stockholders Meeting);

(ii) vote (or cause to be voted) all of the Clearwire Shares beneficially owned by the Stockholder (to the extent the Stockholder beneficially owned such shares on the record date for the CIC Stockholders Meeting), in person or by proxy, (A) if the Third Amendment has been executed and delivered by the parties thereto, in favor of approving and adopting the Merger Agreement, (B) in favor of the matters to be voted upon by Clearwire Stockholders at the Parent Stockholders Meeting (as defined in the Note Purchase Agreement) pursuant to Section 7.01(c) of the Note Purchase Agreement (the “Note Issuance Required Vote”) and (C) if the Third Amendment has been executed and delivered by the parties thereto, in favor of any proposal to adjourn or postpone any CIC Stockholders Meeting to a later date (but prior to the expiration of the Term) if there are not sufficient votes for approval of such matters on the date on which such CIC Stockholders Meeting is held to vote on any of the foregoing matters (the “Covered Matters”); and

(iii) vote (or cause to be voted) all of the Clearwire Shares beneficially owned by the Stockholder at such time (to the extent the Stockholder beneficially owned such shares on the record date for the CIC Stockholders Meeting), in person or by proxy, against (A) any Acquisition Proposal (other than the Merger), (B) any action, proposal, transaction or agreement that could reasonably be expected to result in a breach of any covenant, representation or warranty or any other obligation or agreement of the Stockholder under this Agreement or, to the knowledge of the Stockholder, of Clearwire under the Merger Agreement or the Note Purchase Agreement and (C) any action, proposal, transaction or agreement that could reasonably be expected to impede, interfere with, delay, postpone,

 

2


prevent, discourage, adversely affect or inhibit the timely consummation of the Merger, the issuance of the Notes (or Clearwire Common Stock or units of Clearwire Communications, LLC, a Delaware limited liability company (“Clearwire LLC”) for which such Notes will be exchangeable) pursuant to the Note Purchase Agreement or, to the knowledge of the Stockholder, the fulfillment of Sprint’s, Clearwire’s, Clearwire LLC’s or Acquisition Corp.’s conditions under the Merger Agreement or the Note Purchase Agreement or the Stockholder’s obligations under this Agreement or change in any manner the present capitalization of Clearwire or Clearwire LLC or the voting rights of any class of shares of Clearwire (including any amendments to Clearwire’s Certificate of Incorporation or Bylaws).

(b) The obligations of the Stockholder specified in Sections 2(a)(i), (ii) and (iii) shall apply whether or not the Merger or any action described above is recommended by the Board of Directors of Clearwire (or any committee thereof).

(c) Except as expressly set forth in this Agreement, the Stockholder may vote the Clearwire Shares beneficially owned by it in its discretion on all matters submitted for the vote of stockholders of Clearwire.

3. [Intentionally Omitted]

4. No Inconsistent Agreements. The Stockholder hereby covenants and agrees that the Stockholder, except as expressly provided in this Agreement, (a) has not entered, and shall not enter at any time during the Term, into any voting agreement, voting trust or option agreement with respect to the Clearwire Shares owned by the Stockholder, (b) has not granted, and shall not grant at any time during the Term, a proxy, a consent or power of attorney with respect to a CIC Stockholders Meeting and with respect to the Clearwire Shares owned by the Stockholder, and (c) has not taken and shall not take any action with the express intention of making any representation or warranty of the Stockholder contained herein untrue or incorrect or preventing or disabling the Stockholder from performing any of its obligations under this Agreement.

5. Representations and Warranties of the Stockholder. The Stockholder hereby represents and warrants to Sprint as follows:

(a) Authorization; Validity of Agreement; Necessary Action. The Stockholder (i) is duly organized, validly existing and in good standing under the Laws of the jurisdiction of its organization and (ii) has the requisite corporate or other entity power and authority to execute and deliver this Agreement, and to perform the Stockholder’s obligations hereunder and to consummate the transactions contemplated hereby. No other corporate or other entity actions or proceedings on the part of the Stockholder are necessary to authorize the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby. This Agreement has been duly executed and delivered by the Stockholder and, assuming this Agreement constitutes a valid and binding obligation of and is enforceable against Sprint, constitutes a valid and binding obligation of the Stockholder, enforceable against the Stockholder in accordance with its terms, subject to (A) bankruptcy,

 

3


insolvency, reorganization, moratorium or other similar laws affecting or relating to the enforcement of creditors’ rights generally, and (B) general equitable principles.

(b) Ownership. As of the date hereof, (i) Schedule A attached hereto sets forth the Existing Clearwire Shares beneficially owned by the Stockholder and (ii) such Existing Clearwire Shares constitute all of the shares of Clearwire Common Stock beneficially owned by the Stockholder. The Stockholder has owned all of such Existing Clearwire Shares as of and at all times since the Record Date. There are no existing agreements or arrangements between the Stockholder or any of its affiliates, on the one hand, and any other Person, on the other hand, relating to the Existing Clearwire Shares beneficially owned by the Stockholder or any of its affiliates that would, either individually or in the aggregate, prevent, delay or impair the ability of the Stockholder to perform its obligations hereunder and to consummate the transactions contemplated hereby on a timely basis. The Stockholder has and will have at all times, directly or indirectly, through the Term, sole voting power, sole power of disposition, sole power to issue instructions with respect to the matters set forth in this Agreement, and sole power to agree to all of the matters set forth in this Agreement, in each case with respect to all of the Clearwire Shares beneficially owned by the Stockholder at any closing date of the Merger or any Sale, with no limitations, qualifications or restrictions on such rights, subject to applicable federal securities laws and the terms of this Agreement. Subject to Sections 7(a) and 11(a), the Stockholder has and, until consummation of the Merger or the Sale (as defined below) by the Stockholder of the Clearwire Shares of the Stockholder, will have, good and marketable title to the Clearwire Shares owned by the Stockholder, free and clear of any security interests, liens, claims, pledges, options, rights of first refusal, agreements, limitations on voting rights, charges and encumbrances of any nature whatsoever (“Liens”), except for Liens expressly provided in this Agreement.

(c) No Violation. The execution and delivery of this Agreement by the Stockholder do not, and the performance by the Stockholder of its obligations under this Agreement will not, (i) conflict with or violate any Law applicable to the Stockholder or by which any of its assets or properties is bound, (ii) conflict with any certificate of incorporation, bylaws or other organizational documents of the Stockholder or (iii) conflict with, result in any breach of or constitute a default (or an event that with notice or lapse of time or both would become a default) under, or give to others any rights of termination, amendment, acceleration or cancellation of, or require payment under, or require redemption or repurchase of or otherwise require the purchase or sale of, or result in the creation of any Lien on, the Existing Clearwire Shares owned by the Stockholder pursuant to, any note, bond, mortgage, indenture, contract, agreement, lease, license, permit, franchise or other instrument or obligation to which the Stockholder is a party or by which the Stockholder or any of the Existing Clearwire Shares owned by the Stockholder is bound, except for any of the foregoing as would not, either individually or in the aggregate, prevent or delay or impair the ability of the Stockholder to perform its obligations hereunder or to consummate the transactions contemplated hereby on a timely basis.

(d) Consents and Approvals. The execution and delivery of this Agreement by the Stockholder do not, and the performance by the Stockholder of its obligations under this Agreement will not, require the Stockholder to obtain any consent, approval, authorization

 

4


or permit of, or to make any filing (other than filings under the Securities Exchange Act of 1934, as amended (the “Exchange Act”)) with or notification to, any Governmental Entity based on any applicable Law, except for any of the foregoing as would not, either individually or in the aggregate, prevent or delay or impair the ability of the Stockholder to perform its obligations hereunder or to consummate the transactions contemplated hereby on a timely basis.

(e) Absence of Litigation. As of the date hereof, there is no suit, action, investigation or proceeding pending or, to the knowledge of the Stockholder, threatened against the Stockholder before or by any Governmental Entity that would impair the ability of the Stockholder to perform its obligations hereunder or to consummate the transactions contemplated hereby on a timely basis.

(f) Reliance by Sprint. The Stockholder understands, acknowledges and agrees that Sprint is proposing and, if executed and delivered by Clearwire, entering into the Third Amendment in reliance upon the Stockholder’s execution and delivery of this Agreement. The Stockholder understands and acknowledges that the Existing Merger Agreement governs the terms of the Merger and the other matters specified therein and if the Third Amendment is executed and delivered by the parties thereto, the Merger Agreement will govern the terms of the Merger and the other matters specified therein.

6. Representations and Warranties of Sprint. Sprint hereby represents and warrants to the Stockholder as follows:

(a) Authorization; Validity of Agreement; Necessary Action. It (i) is duly organized, validly existing and in good standing under the Laws of the jurisdiction of its organization and (ii) has the corporate power and authority to execute and deliver this Agreement, and to perform its obligations hereunder and to consummate the transactions contemplated hereby. No other actions or proceedings on its part are necessary to authorize the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby. This Agreement has been duly executed and delivered by it and, assuming this Agreement constitutes a valid and binding obligation of and is enforceable against the Stockholder, this Agreement constitutes its valid and binding obligation, enforceable against it in accordance with the terms hereof, subject to (A) bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting or relating to the enforcement of creditors’ rights generally, and (B) general equitable principles.

(b) No Violation. Its execution and delivery of this Agreement does not, and its performance of its obligations under this Agreement will not, (i) conflict with or violate any Law applicable to it or by which any of its assets or properties is bound, (ii) conflict with its certificate of incorporation or bylaws or (iii) conflict with, result in any breach of or constitute a default (or an event that with notice or lapse of time or both would become a default) under, or give to others any rights of termination, amendment, acceleration or cancellation of, or require payment under, any note, bond, mortgage, indenture, contract, agreement, lease, license, permit, franchise or other instrument or obligation to which it is a party or by which it is bound, except for any of the foregoing as would not, either

 

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individually or in the aggregate, prevent or delay or impair its ability to perform its obligations hereunder or to consummate the transactions contemplated hereby on a timely basis.

(c) Consents and Approvals. Its execution and delivery of this Agreement does not, and, except for the receipt of the FCC Consent, its performance of its obligations under this Agreement will not, require it to obtain any consent, approval, authorization or permit of, or to make any filing with or notification to, any Governmental Entity based on any applicable Law, except for any of the foregoing as would not, either individually or in the aggregate, prevent or delay or impair its ability to perform its obligations hereunder or to consummate the transactions contemplated hereby on a timely basis.

7. Covenants of the Stockholder. The Stockholder hereby covenants and agrees that:

(a) Transfers. Except as expressly contemplated hereby or by the Existing Merger Agreement or the Merger Agreement or as required by a court of competent jurisdiction or by any applicable Law, during the time period from the date hereof through the expiration of the Term, the Stockholder shall not (directly or indirectly), sell, transfer, pledge, encumber, assign, distribute, hypothecate, tender or otherwise dispose of, including by way of merger, consolidation, share exchange or similar transaction, whether voluntarily or by operation of law (collectively, a “Transfer”), or enforce the provisions of any redemption, share purchase or sale, recapitalization or other agreement with Clearwire or any other person, or enter into any contract, option or other arrangement or understanding with respect to the voting of or any Transfer (whether by actual disposition or effective economic disposition due to hedging, cash settlement or otherwise) of, any of the Existing Clearwire Shares beneficially owned by the Stockholder, any Clearwire Shares acquired by the Stockholder after the date hereof, any securities exercisable or exchangeable for or convertible into shares of Clearwire Common Stock, any other capital stock of Clearwire or any interest in any of the foregoing. Notwithstanding the foregoing, upon prior written notice to Sprint containing the name of the transferee and the number of Clearwire Shares Transferred, the Stockholder shall be permitted to Transfer Clearwire Shares beneficially owned by the Stockholder to (i) any member of the group disclosed in the Stockholder’s Statement on Schedule 13D to be filed with the SEC disclosing this Agreement, or to any controlled Affiliate of any such member, provided that such member is a party to a voting agreement with Sprint of even date herewith substantially identical to this Agreement (and such member certifies to Sprint’s reasonable satisfaction that such transfer is to a controlled Affiliate of such member), (ii) to any Affiliate of the Stockholder, provided such Affiliate agrees in writing with Sprint to be bound by the terms of this Agreement pursuant to a joinder or other documentation reasonably satisfactory to Sprint or (iii) in open market or other transactions (to any person other than DISH Network Corporation or an affiliate thereof), provided, in the case of clause (iii), (A) that such sale shall not be accompanied by a proxy or in any way be in derogation of the Stockholder’s obligations under Section 2 hereof and (B) the Stockholder shall have no obligation under Section 8 with respect to such Clearwire Shares transferred pursuant to this clause (iii). No such Transfer to any such Affiliate or member or controlled Affiliate of such member shall relieve the Stockholder of any of its obligations pursuant to this Agreement.

 

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(b) Stock Dividends and Distributions. In case of a stock dividend or distribution, or any change in Clearwire Common Stock by reason of any stock dividend or other distribution of stock, split-up, recapitalization, reverse stock split, reclassification, reincorporation, combination, exchange of shares or the like, the term “Clearwire Shares” shall be deemed to refer to and include the Clearwire Shares as well as all such stock dividends and stock distributions and any securities into which or for which any or all of the Clearwire Shares may be changed or exchanged or that are received in any such transaction.

(c) Additional Shares. Until the expiration of the Term, the Stockholder shall notify Sprint promptly (and in any event within two Business Days) in writing of the number of any additional Clearwire Shares acquired by the Stockholder, if any, after the date hereof.

(d) Prohibited Actions. The Stockholder agrees that, until the expiration of the Term, the Stockholder shall not, and shall not knowingly permit any of the Stockholder’s representatives or agents to, (i) engage in any conduct described in Section 4.3(b)(i), Section 4.3(b)(ii) or Section 4.3(b)(iii) of the Existing Merger Agreement (or such sections of the Merger Agreement if the Third Amendment is executed and delivered by the parties thereto) as it relates to an Acquisition Proposal (other than the Merger) or (ii) exercise, assert or perfect, or attempt to exercise, assert or perfect, any rights under Section 262 of the DGCL with respect to the Merger.

8. Sale of Clearwire Shares upon Termination of Merger Agreement.

(a) Unless the Effective Time has previously occurred, upon the earlier of (i) October 15, 2013 (the “End Date”) and (ii) the termination of the Merger Agreement in accordance with its terms, Sprint shall promptly deliver notice thereof to the Stockholder (the “Termination Notice”), provided that, if, after using all reasonable efforts to obtain all necessary governmental approvals and third party consents to permit the Sale (as defined below), Sprint has not obtained such approvals by the End Date, Sprint shall be permitted to extend the End Date to the earlier of (A) two Business Days after the date Sprint obtains such governmental approvals or third party consents and (B) November 28, 2013. Upon the earlier of (i) the End Date and (ii) receipt of such Termination Notice and in accordance with this Section 8, Sprint and the Stockholder shall consummate the purchase by Sprint of all of the Existing Clearwire Shares set forth opposite the Stockholder’s name on Schedule A attached hereto and, in Sprint’s sole discretion, all or any portion of any additional Clearwire Shares then beneficially owned by the Stockholder, at a cash sale price per Clearwire Share equal to the greatest of (A) the Merger Consideration, (B) the highest price per share of Clearwire Common Stock paid or to be paid in the Merger (or in any similar merger, consolidation or similar transaction involving Sprint or one or more of its Affiliates and Clearwire consummated or entered into prior to the End Date or the date of delivery of the Termination Notice) or (C) $5.00, without interest (the “Sale”). Each of Sprint and the Stockholder agrees that it will (a) consummate the applicable Sale in accordance with this Section 8 and (b) provide any consents, approvals or other documents reasonably necessary to consummate such Sale.

 

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(b) The closing of the Sale with respect to the Stockholder will take place at a location designated by Sprint and, if not on the End Date as provided in Section 8(a), on a date designated by Sprint that is no later than three Business Days after delivery of the Termination Notice to the Stockholder provided that (i) if Sprint determines in its reasonable discretion that any governmental approvals are required to consummate the Sale, then the closing of the Sale will take place on the earlier of (A) three Business Days following the receipt of such governmental approvals and (B) November 28, 2013, and (ii) the Stockholder shall be permitted to delay the consummation of the Sale, but not beyond December 21, 2013, to the extent necessary to not incur liability under the short-swing profit rules under Section 16(b) of the Exchange Act and the rules and regulations promulgated thereunder. At the closing of any Sale, the Stockholder will deliver to Sprint (a) if the Clearwire Shares to be sold are certificated, a certificate or certificates for the Clearwire Shares to be sold, in each case accompanied by stock powers with signatures guaranteed and all necessary stock transfer taxes paid and stamps affixed, if necessary, or (b) if the Clearwire Shares to be sold are not certificated, proper transfer instructions from the Stockholder or the Stockholder’s lawfully constituted attorney-in-fact, accompanied by evidence that all necessary stock transfer taxes have been paid and evidence of compliance with appropriate procedures for transferring shares in uncertificated form, in either case against receipt of the purchase price therefore by certified or official bank check or by wire transfer of immediately available funds.

(c) Sprint’s right to acquire Clearwire Shares pursuant to this Section 8 may be exercised, at Sprint’s option, by any direct or indirect wholly-owned subsidiary of Sprint, provided no such delegation to any such Person shall relieve Sprint of its obligations hereunder. If Sprint desires for a direct or indirect wholly-owned subsidiary of Sprint to acquire Clearwire Shares pursuant to this Section 8, Sprint will notify the Stockholder of such in the Termination Notice.

(d) If the Sale occurs and at any time prior to the one-year anniversary of the consummation of the Sale, Sprint or any of its Affiliates acquires all, but not less than all, of the outstanding shares of Clearwire Common Stock not held by Sprint or any of its Affiliates, whether by merger, tender offer, purchase or other similar transaction (a “Subsequent Transaction”) at a price per share of Clearwire Common Stock in excess of the price paid in the Sale, then within five Business Days of the consummation of any Subsequent Transaction, Sprint shall pay or cause to be paid to the Stockholder, for each Clearwire Share purchased in the Sale, the difference between the price per share of Clearwire Common Stock paid in the Sale and the price per share of Clearwire Common Stock paid in the Subsequent Transaction. In the event that the consideration paid by Sprint or any such Affiliate consists in whole or in part of Sprint common stock or other securities of Sprint (“Reference Securities”), the value of such Reference Securities that are publicly-traded shall be determined by the average of the closing price of such Reference Securities for the five trading days immediately preceding the closing of the Subsequent Transaction. If such Reference Securities are not publicly-traded, the value shall be determined in good faith by the board of directors of Sprint or any committee thereof. For the avoidance of doubt, any award in excess of the price paid in the Sale in an

 

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appraisal proceeding in the State of Delaware shall not entitle the Stockholder to any payment pursuant to this Section 8(d).

9. Releases.

(a) The Stockholder, for the benefit of Sprint and Starburst and each of Sprint’s and Starburst’s controlling persons, officers, directors, stockholders, agents, affiliates, subsidiaries, employees, attorneys, advisors and assigns, past, present and future, in their capacity as such (Sprint and Starburst and each such person being a “Company Released Person”), hereby forever fully, unconditionally and irrevocably releases, waives and forever discharges, and covenants not to sue, any of the Company Released Persons for any and all claims, causes of action, actions, judgments, liens, debts, contracts, indebtedness, damages, losses, liabilities, rights, interests and demands of whatsoever kind or character (collectively, “Claims”) based on any event, fact, act, omission, or failure to act by the Company Released Persons, or any of them, whether known or unknown, occurring or existing prior to the execution of this Agreement, and arising out of or related to the Merger or the Merger Agreement and the Note Purchase Agreement and the transactions contemplated thereby; provided, however, that this waiver and release and covenant not to sue shall not include any Claims arising out of or related to any obligations under, or breach of, this Agreement.

(b) Each of Sprint and Starburst, for the benefit of the Stockholder and its controlling persons, officers, directors, stockholders, agents, affiliates, subsidiaries, employees, attorneys, advisors and assigns, past, present and future, in their capacity as such (each such person being a “Stockholder Released Person”), hereby forever fully, unconditionally and irrevocably releases, waives and forever discharges, and covenants not to sue, any of the Stockholder Released Persons, for any Claim based on any event, fact, act, omission or failure to act by such Stockholder Released Person, whether known or unknown, occurring or existing prior to the execution of this Agreement, and arising out of or related to the Merger or the Merger Agreement and the Note Purchase Agreement and the transactions contemplated thereby; provided, however, that this waiver and release and covenant not to sue shall not include any Claims arising out of or related to any obligations under, or breach of, this Agreement.

(c) It is the intention of the parties that the releases set forth above in subsections (a) and (b) of this Section 9 shall be effective as a bar to any and all matters released herein. In furtherance and not in limitation of such intention, the release described herein shall be, and shall remain in effect as, a full and complete release, notwithstanding the discovery or existence of any additional or different facts or claims. It is expressly understood and agreed that this Agreement is intended to cover and does cover not only all known facts and/or claims but also any further facts and/or claims not now known, suspected or anticipated, but which may later develop or should be discovered, including all the effects and consequences thereof.

(d) The foregoing releases shall bind the heirs, personal representatives, successors and assigns of each party, and inure to the benefit of each party and each

 

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party’s predecessors, successors, assigns, shareholders, directors, officers, partners, employees, agents subsidiaries and affiliates.

(e) The Stockholder (with respect to Section 9(a)) and Sprint and Starburst (with respect to Section 9(b)) (collectively, the “Releasors”) (i) represents, warrants and acknowledges that such Releasor has been fully advised by his, her or its attorney of the contents of Section 1542 of the Civil Code of the State of California, and (ii) hereby expressly waives the benefits thereof and any rights such Releasor may have thereunder. Section 1542 of the Civil Code of the State of California provides as follows:

“A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor.”

9.A. Indemnification.

(a) Sprint agrees to indemnify, defend and hold harmless the Stockholder and its Affiliates and its and its Affiliates’ respective officers, directors, employees, members, partners, equityholders, agents and each other Person, if any, controlling it or any of its Affiliates (each an “Indemnified Person”) from and against any and all losses, claims, suits, damages, liabilities and expenses, joint or several, to which any such Indemnified Person may become subject under applicable Law or otherwise relating to, arising out of or in connection with this Agreement or its performance hereunder, or any Proceeding relating to the foregoing regardless of whether any of such Indemnified Persons is a party thereto, and to reimburse each Indemnified Person for any documented reasonable legal or other expenses as they are incurred in connection with investigating, preparing, pursuing, responding to or defending any of the foregoing.

(b) Promptly after receipt by an Indemnified Person of notice of the commencement of any Proceedings, such Indemnified Person shall, if a claim is to be made hereunder against Sprint in respect thereof, notify Sprint in writing of the commencement thereof; provided that (i) the omission to so notify Sprint shall not relieve Sprint from any liability or obligation which it may have hereunder except to the extent Sprint has been actually and materially prejudiced by such failure and (ii) the omission to so notify Sprint shall not relieve it from any liability which it may have to an Indemnified Person otherwise than on account of these indemnity provisions. In case any such Proceedings are brought against any Indemnified Person and it notifies Sprint of the commencement thereof, Sprint shall be entitled to participate therein and, to the extent that it may elect by written notice delivered to the Indemnified Person, to assume the defense thereof with counsel reasonably satisfactory to the Stockholder; provided that if the defendants in any such Proceedings include both the Indemnified Person and Sprint and the Indemnified Person with the advice of counsel shall have reasonably concluded that there may be legal defenses available to it which are different from or additional to those available to Sprint and that representation of both Sprint and the Indemnified Person would be inappropriate or inadvisable due to actual or potential differing interests between Sprint and such Indemnified Person, the Indemnified Person shall have the right to select separate counsel not reasonably disapproved by Sprint to assert such legal

 

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defenses and to otherwise participate in the defense of such Proceedings on behalf of such Indemnified Person and Sprint shall not have the right to assume the defense thereof. Upon receipt of notice from Sprint to such Indemnified Person of its election to so assume the defense of such Proceedings and approval by the Indemnified Person of counsel, Sprint shall not be liable to such Indemnified Person for expenses incurred by the Indemnified Person in connection with the defense thereof (other than reasonable costs of investigation and of monitoring such Proceeding) unless (i) the Indemnified Person shall have employed separate counsel in connection with the assertion of legal defenses in accordance with the proviso to the immediately preceding sentence (it being understood, however, that Sprint shall not be liable for the expenses of more than one separate counsel (in addition to any local counsel), representing the Indemnified Persons who are parties to such Proceedings), (ii) Sprint shall not have employed counsel reasonably satisfactory to Stockholder to represent the Indemnified Person within a reasonable time after notice of commencement of the Proceedings or (iii) Sprint has authorized in writing the employment of counsel for the Indemnified Person.

(c) Sprint shall not be liable for any settlement of any Proceedings effected without its written consent (which consent shall not be unreasonably withheld), but if settled with its written consent or if there be a final judgment for the plaintiff in any such Proceedings, Sprint agrees to indemnify and hold harmless each Indemnified Person from and against any and all losses, claims, damages, liabilities and expenses by reason of such settlement or judgment. Notwithstanding the immediately preceding sentence, if at any time an Indemnified Person shall have requested Sprint to reimburse such Indemnified Person for legal or other expenses in connection with investigating, responding to or defending any Proceedings, Sprint shall be liable for any settlement of any Proceedings effected without its written consent if (i) such settlement is entered into more than 60 days after receipt by Sprint of such request for reimbursement and (ii) Sprint shall not have reimbursed such Indemnified Person in accordance with such request prior to the date of such settlement. Sprint shall not, without the prior written consent of Stockholder, effect any settlement of any pending or threatened Proceedings in respect of which indemnity could have been sought hereunder by an Indemnified Person unless such settlement (a) includes an unconditional release of such Indemnified Person in form and substance satisfactory to such Indemnified Person from all liability on claims that are the subject matter of such Proceedings, (b) does not include a statement as to an admission of fault, culpability or a failure to act by or on behalf of any such Indemnified Person, and (c) does not impose any restriction whatsoever on any Indemnified Person.

(d) Notwithstanding any other provision of this Agreement, Sprint shall not be obligated pursuant to the terms of this Agreement:

(i) to indemnify with respect to claims initiated or brought voluntarily by an Indemnified Person and not by way of defense, except with respect to Proceedings brought to establish or enforce a right to indemnification under this Agreement; or

 

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(ii) to indemnify an Indemnified Person for the payment of profits arising from the purchase and sale of securities in violation of Section 16(b) of the Securities Exchange Act of 1934, as amended, or any similar successor statute.

(e) In the event of payment under these indemnity provisions, Sprint shall be subrogated to the extent of such payment to all of the rights of recovery of an Indemnified Person, who shall execute all documents required and shall do all acts that may be necessary to secure such rights and to enable Sprint effectively to bring suit to enforce such rights.

10. [Intentionally omitted]

11. Miscellaneous.

(a) Termination. This Agreement shall terminate upon the earliest to occur of: (i) the Effective Time; (ii) the consummation of all of the Sales pursuant to this Agreement; and (iii) the written agreement of the Stockholder and Sprint; provided, however, that the Stockholder shall have the right to terminate this Agreement as to itself by written notice to Sprint if the Third Amendment is executed and delivered by the parties thereto and thereafter the terms of the Merger Agreement are amended or modified to reduce the amount of the Merger Consideration or change the form of the Merger Consideration. With respect to the Stockholder, the period from the date of this Agreement up to and through the termination of this Agreement in accordance with the foregoing is referred to herein as the “Term” (it being understood, for the avoidance of doubt, that the term “Term” shall be determined on a Stockholder-by-Stockholder basis). Notwithstanding the foregoing, however, (i) Sections 8(d), 9, 9A and 11(c) through 11(q) shall not terminate and shall remain in full force and effect after termination of this Agreement and no termination of this Agreement shall relieve any of the parties hereto from the consequences of any breach of this Agreement by such party prior to the termination of this Agreement, and (ii) if by 5:00 p.m. EDT on June 20, 2013, Clearwire shall not have executed and delivered the Third Amendment, this Agreement shall automatically terminate without further action by the parties hereto.

(b) Further Assurances. From time to time, (i) at Sprint’s request and without further consideration, the Stockholder shall execute and deliver such additional documents and take all such further action as may be reasonably necessary (without adverse consequences to the Stockholder) to consummate the transactions contemplated by this Agreement and (ii) at the Stockholder’s request and without further consideration, Sprint shall execute and deliver such additional documents and take all such further action as may be reasonably necessary (without adverse consequences to it) to consummate the transactions contemplated by this Agreement.

(c) No Ownership Interest. Without limiting any rights of Sprint hereunder, and except in the case of the consummation of the Sales, all rights, ownership and economic benefits of and relating to the Clearwire Shares shall remain vested in and belong to the Stockholder, and Sprint shall have no authority to exercise any power or authority to direct

 

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the Stockholder in the voting of any of the Clearwire Shares, except in each case as otherwise provided herein.

(d) Expenses. All costs and expenses (including legal fees) incurred by Sprint in connection with the preparation and negotiation of this Agreement shall be paid by Sprint. Sprint shall promptly following the request from time to time by the Stockholder reimburse the Stockholder for its documented (consisting of only invoices and not supporting detail) expenses (including fees and expenses of counsel) incurred since December 17, 2012 in connection with or arising out of the transactions contemplated by the Merger Agreement or other publicly-announced offers to acquire Clearwire, and the negotiation, execution and delivery and performance of this Agreement, and filings with the SEC, provided that Sprint’s reimbursement obligation pursuant to this Section 11(d) and Section 11(d) of each other voting agreement executed as of the date hereof by members of the Stockholder’s 13D (the “13D”) filing group shall not exceed $1,000,000 in the aggregate.

(e) Notices; Designated Representative. All notices or other communications hereunder shall be in writing and shall be deemed given if delivered personally, sent by nationally recognized overnight courier (providing proof of delivery) or mailed by prepaid registered or certified mail (return receipt requested) or sent by facsimile transmission (providing confirmation of such facsimile transmission) addressed as follows:

if to Sprint to:

Sprint Nextel Corporation

6200 Sprint Parkway

Overland Park, Kansas 66251

Attention:           General Counsel
Fax:       (913) 794-1432

with required copies to (which shall not constitute notice):

King & Spalding LLP

1180 Peachtree Street, N.E.

Atlanta, Georgia 30309

Attention:           Michael J. Egan
Fax:    (404) 572-5100

Skadden, Arps, Slate, Meagher & Flom LLP

Four Times Square

New York, NY 10036

Attention:  

        Thomas H. Kennedy

        Jeremy D. London

Fax:    (212) 735-2000

if to the Stockholder, to the address set forth on the Stockholder’s signature page hereto, with a copy to (which shall not constitute notice) to such other person as noted on such signature page;

 

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or as to any addressee to such other address as shall be furnished in writing by such addressee, and any such notice or communication shall be deemed to have been given as of the date received by the addressee as provided above; provided that any notice received by facsimile transmission or otherwise at the addressee’s location on any Business Day after 5:00 p.m. (addressee’s local time) shall be deemed to have been received by such addressee at 9:00 a.m. (addressee’s local time) on the next Business Day.

(f) Interpretation. The words “hereof,” “herein” and “hereunder” and words of similar import when used in this Agreement shall refer to this Agreement as a whole and not to any particular provision of this Agreement, and Section references are to this Agreement unless otherwise specified. Whenever the words “include,” “includes” or “including” are used in this Agreement, they shall be deemed to be followed by the words “without limitation”. Definitions used herein are applicable to the singular as well as the plural forms of such terms and pronouns shall include the corresponding masculine, feminine or neuter forms.

(g) Counterparts. This Agreement may be executed in two or more counterparts, all of which shall be considered one and the same agreement and shall become effective when counterparts have been signed by each of the parties and delivered to the other parties, it being understood that all parties need not sign the same counterpart. This Agreement may be executed and delivered by means of facsimile transmission or e-mailed signature pages, and the parties adopt any signatures so received as original signatures of the parties.

(h) Entire Agreement. This Agreement, together with the Merger Agreement as applicable, constitutes the entire agreement and supersedes all prior agreements and understandings, both written and oral, among the parties with respect to the subject matter hereof.

(i) Governing Law. This Agreement shall be governed by and construed in accordance with the Laws of the State of Delaware, without regard to principles of conflicts of law thereof.

(j) Venue. The parties (i) agree that any suit, action or proceeding arising out of or relating to this Agreement or the transactions contemplated hereby will be brought solely in the state or federal courts of the State of Delaware, (ii) consent to the exclusive jurisdiction of each such court in any suit, action or proceeding relating to arising out of this Agreement or the transactions contemplated hereby and (iii) waive any objection that it may have to the laying of venue in any such suit, action or proceeding in any such court.

(k) Service of Process. Each party irrevocably consents to service of process in the manner provided for the giving of notices pursuant to this Agreement. Nothing in this Agreement will affect the right of a party to serve process in another manner permitted by Law.

(l) Waiver of Jury Trial. EACH PARTY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY

 

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JURY IN RESPECT OF ANY ACTION, SUIT OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT, AND WHETHER MADE BY CLAIM, COUNTERCLAIM, THIRD PARTY CLAIM OR OTHERWISE.

(m) Amendment; Waiver. This Agreement may not be amended except by an instrument in writing signed on behalf of (i) the Stockholder and (ii) Sprint; provided that none of Section 9 of this Agreement, this Section 11(m) or Section 11(n) of this Agreement may be amended without an instrument in writing signed on behalf of Starburst. Each party may only waive any right of such party hereunder by an instrument in writing signed by such party and delivered to the other party or parties that are the intended beneficiary or beneficiaries of such waiver. If Sprint shall offer to amend or modify any voting agreement executed as of the date hereof with any member of the Stockholders’ 13D filing group, Sprint shall offer to make the same amendments or modifications to this Agreement.

(n) Specific Performance. Sprint acknowledges and agrees that the Stockholder would be damaged irreparably in the event any of the provisions of this Agreement are not performed in accordance with their specific terms or otherwise are breached. Accordingly, Sprint agrees that the Stockholder shall be entitled, without the necessity of posting any bond or security, any requirement for which is hereby waived by all parties hereto, to seek an injunction or injunctions to prevent breaches of the provisions of this Agreement and to enforce specifically this Agreement and the terms and provisions hereof, this being in addition to any other remedy to which the Stockholder shall be entitled at law or in equity. The Stockholder acknowledges and agrees that Sprint (and Starburst, with respect to the provisions hereof applicable to it) would be damaged irreparably in the event any of the provisions of this Agreement are not performed in accordance with their specific terms or otherwise are breached. Accordingly, the Stockholder agrees that Sprint (and Starburst, with respect to the provisions hereof applicable to it) shall be entitled, without the necessity of posting any bond or security, any requirement for which is hereby waived by all parties hereto, to seek an injunction or injunctions to prevent breaches of the provisions of this Agreement and to enforce specifically this Agreement and the terms and provisions hereof, this being in addition to any other remedy to which Sprint shall be entitled at law or in equity.

(o) Public Announcement; Disclosure. No Stockholder shall issue any press releases or otherwise make any public statements with respect to the transactions contemplated herein without the prior written consent of Sprint, except that (i) a Stockholder may, without the prior consent of Sprint, issue or cause the publication of any press release or other public announcement (including an amendment to the 13D) to the extent that so doing is required by Law and (ii) the Stockholder will, upon the request of Sprint, confirm publicly that it has voted its Clearwire Shares in favor of the adoption of the Merger Agreement. The Stockholder hereby authorizes Sprint and Starburst to publish and disclose in any announcement or disclosure the execution of this Agreement and the transactions contemplated by this Agreement (including the nature of its commitments, arrangements and understandings under this Agreement). Each party will reasonably consult with the other parties hereto with respect to any proposed public announcement, including any 13D regarding the transactions contemplated by this Agreement.

 

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(p) Severability. Any term or provision of this Agreement that is invalid or unenforceable in any situation in any jurisdiction shall not affect the validity or enforceability of the remaining terms and provisions hereof or the validity or enforceability of the offending term or provision in any other situation or in any other jurisdiction. If the final judgment of a court of competent jurisdiction declares that any term or provision hereof is invalid or unenforceable, the parties agree that the court making the determination of invalidity or unenforceability shall have the power to delete specific words or phrases, or to replace any invalid or unenforceable term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable term or provision, and this Agreement shall be enforceable as so modified after the expiration of the time within which the judgment may be appealed.

(q) Assignment; Third Party Beneficiaries. Neither this Agreement nor any of the rights, interests or obligations of any party hereunder shall be assigned by such party (whether by operation of law or otherwise) without the prior written consent of the other party; provided, however, that Sprint shall be permitted to transfer its rights hereunder to any affiliate of Sprint, so long as Sprint continues to be liable for its obligations under this Agreement. Subject to the preceding sentence, this Agreement will be binding upon, inure to the benefit of and be enforceable by the parties and their respective heirs, successors and permitted assigns. This Agreement is not intended to confer any rights or remedies hereunder upon any person or entity other than (i) the parties hereto and (ii) with respect to Section 9 of this Agreement, the Company Released Persons and the Stockholder Released Persons.

(r) Ownership of Shares. Any obligation, covenant, undertaking or agreement of the Stockholder under this Agreement shall include an obligation, covenant, undertaking and agreement of the Stockholder to cause each of its controlled Affiliates to the extent such controlled Affiliates own or beneficially own Clearwire Shares to fully comply with such obligation, covenant, undertaking and agreement of such controlled Affiliate as if it were a party hereto. In the event that any controlled Affiliate of the Stockholder, rather than the Stockholder, owns Clearwire Shares, then so long as the Stockholder causes such controlled Affiliate to fully comply with all the Stockholder’s obligations, covenants, undertakings and agreements set forth in this Agreement with respect to such Clearwire Shares, and such controlled Affiliate does so fully comply with all of the obligations, covenants, undertakings and agreements set forth in this Agreement, all the representations, warranties, covenants and agreements of the Stockholder set forth in this Agreement with respect to such Clearwire Shares shall be deemed to be accurate or to have been duly complied with by the Stockholder, as the case may be. If any controlled Affiliate of the Stockholder does not fully comply with the Stockholder’s obligations, covenants, undertakings and agreements set forth in this Agreement, the Stockholder shall be liable for any such non-compliance.

[Remainder of Page Intentionally Left Blank]

 

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IN WITNESS WHEREOF, each of the parties have signed or have caused this Agreement to be signed by their respective officers or other authorized persons thereunto duly authorized as of the date first above written.

 

SPRINT NEXTEL CORPORATION
By:  

/s/ Charles Wunsch

  Name:   Charles Wunsch
  Title:   General Counsel, Senior Vice President, Corporate Secretary
STARBURST II, INC. (solely for the purposes of Section 9, Section 11(m) and Section 11(n))
By:  

/s/ Ronald D. Fisher

  Name:   Ronald D. Fisher
  Title:   President


STOCKHOLDER:
HIGHSIDE CAPITAL MANAGEMENT, L.P.
By:   Highside Management, LLC, its general partner
By:  

/s/ H. Lee S. Hobson

Name:   H. Lee S. Hobson
Title:   Managing Member

with required copies to (which shall not constitute notice):

Sidley Austin LLP

787 Seventh Avenue

New York, NY 10019

Fax: 212-839-5599

Attn: Scott M. Freeman


Schedule A

Existing Clearwire Shares

 

Name of Stockholder

  

Number of Existing Clearwire Shares Beneficially Owned

Highside Capital Management, L.P.    13,199,348 shares of Class A Common Stock
EX-99.68 4 d558039dex9968.htm EX-99.68 EX-99.68

Exhibit 99.68

Execution Copy

VOTING AND SALE AGREEMENT

THIS VOTING AND SALE AGREEMENT (this “Agreement”), dated as of June 20, 2013, is entered into among Sprint Nextel Corporation, a Kansas corporation (“Sprint”), the Person named on Schedule A hereto (the “Stockholder”), solely in its individual capacity as a stockholder of Clearwire Corporation, a Delaware corporation (“Clearwire”), and, solely for purposes of Section 9, Section 11(m) and Section 11(n) of this Agreement, Starburst II, Inc., a Delaware corporation (“Starburst”).

W I T N E S S E T H:

WHEREAS, Clearwire, Sprint and Collie Acquisition Corp., a Delaware corporation and a wholly owned subsidiary of Sprint (“Acquisition Corp.”), are parties to an Agreement and Plan of Merger, dated as of December 17, 2012 (as amended by the First Amendment to Agreement and Plan of Merger dated as of April 18, 2013 and the Second Amendment to Agreement and Plan of Merger dated as of May 21, 2013, the “Existing Merger Agreement”), whereby Acquisition Corp. will be merged with and into Clearwire (the “Merger”) with Clearwire surviving the Merger, upon the terms and subject to the conditions set forth in the Merger Agreement;

WHEREAS, Sprint has proposed to Clearwire entering into a Third Amendment to Agreement and Plan of Merger amending the Existing Merger Agreement (the “Third Amendment” and the Existing Merger Agreement as it will be so amended upon execution and delivery of the Third Amendment by all parties thereto, the “Merger Agreement”) providing for an increase in the Merger Consideration to $5.00 per share in cash, without interest, less applicable withholding taxes, and modifications to certain other terms and conditions;

WHEREAS, the Stockholder, together with funds controlled by the Stockholder, is, was as of April 2, 2013 (the “Record Date”) and at all times since the Record Date has been the sole beneficial owner and holds, held as of the Record Date and at all times since the Record Date has held sole voting power with respect to the shares of Class A common stock, par value $0.0001 per share, of Clearwire (the “Class A Common Stock” and, together with the Class B common stock, par value $0.0001 per share, of Clearwire, the “Clearwire Common Stock”), set forth opposite the Stockholder’s name on Schedule A attached hereto (all of such shares of Clearwire Common Stock being hereinafter referred to as the “Existing Clearwire Shares” and, together with any shares of Clearwire Common Stock or other voting capital stock of Clearwire and any securities convertible into or exercisable or exchangeable for shares of Clearwire Common Stock or other voting capital stock of Clearwire, in each case that the Stockholder has or acquires ownership of on or after the date hereof, as the “Clearwire Shares”); and

WHEREAS, as an inducement to the willingness of Sprint to enter into the Third Amendment, the Stockholder has agreed to vote all of its Clearwire Shares pursuant to, and in accordance with, the terms and conditions of this Agreement and to certain other matters set forth herein.


NOW, THEREFORE, in consideration of the foregoing and in consideration of the mutual covenants, promises, agreements, and releases contained herein, and for other valuable consideration, receipt of which is hereby acknowledged, and intending to be legally bound, the parties agree as follows:

1. Capitalized Terms. Capitalized terms used herein and not defined herein shall have the respective meanings ascribed to such terms in the Existing Merger Agreement or the Merger Agreement if the Third Amendment has been executed and delivered by the parties thereto.

2. Voting of Shares. (a) During the Term (as hereinafter defined), the Stockholder hereby irrevocably and unconditionally agrees that, at any annual, special or other meeting of the stockholders of Clearwire (“Clearwire Stockholders”) called for the purpose of voting upon the adoption of the Existing Merger Agreement or the Merger Agreement and the approval of the transactions contemplated by the Existing Merger Agreement or the Merger Agreement, the approval of matters subject to a vote of the Clearwire Stockholders pursuant to the Note Purchase Agreement, or the approval of any Acquisition Proposal (a “CIC Stockholders Meeting”), and at any adjournment or postponement thereof, the Stockholder will:

(i) appear in person or by proxy at each CIC Stockholders Meeting or otherwise cause all of the Clearwire Shares beneficially owned by the Stockholder at such time to be counted as present at such meeting for purposes of calculating a quorum (to the extent the Stockholder beneficially owned such shares on the record date for the CIC Stockholders Meeting);

(ii) vote (or cause to be voted) all of the Clearwire Shares beneficially owned by the Stockholder (to the extent the Stockholder beneficially owned such shares on the record date for the CIC Stockholders Meeting), in person or by proxy, (A) if the Third Amendment has been executed and delivered by the parties thereto, in favor of approving and adopting the Merger Agreement, (B) in favor of the matters to be voted upon by Clearwire Stockholders at the Parent Stockholders Meeting (as defined in the Note Purchase Agreement) pursuant to Section 7.01(c) of the Note Purchase Agreement (the “Note Issuance Required Vote”) and (C) if the Third Amendment has been executed and delivered by the parties thereto, in favor of any proposal to adjourn or postpone any CIC Stockholders Meeting to a later date (but prior to the expiration of the Term) if there are not sufficient votes for approval of such matters on the date on which such CIC Stockholders Meeting is held to vote on any of the foregoing matters (the “Covered Matters”); and

(iii) vote (or cause to be voted) all of the Clearwire Shares beneficially owned by the Stockholder at such time (to the extent the Stockholder beneficially owned such shares on the record date for the CIC Stockholders Meeting), in person or by proxy, against (A) any Acquisition Proposal (other than the Merger), (B) any action, proposal, transaction or agreement that could reasonably be expected to result in a breach of any covenant, representation or warranty or any other obligation or agreement of the Stockholder under this Agreement or, to the knowledge of the Stockholder, of Clearwire under the Merger Agreement or the Note Purchase Agreement and (C) any action, proposal, transaction or agreement that could reasonably be expected to impede, interfere with, delay, postpone,

 

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prevent, discourage, adversely affect or inhibit the timely consummation of the Merger, the issuance of the Notes (or Clearwire Common Stock or units of Clearwire Communications, LLC, a Delaware limited liability company (“Clearwire LLC”) for which such Notes will be exchangeable) pursuant to the Note Purchase Agreement or, to the knowledge of the Stockholder, the fulfillment of Sprint’s, Clearwire’s, Clearwire LLC’s or Acquisition Corp.’s conditions under the Merger Agreement or the Note Purchase Agreement or the Stockholder’s obligations under this Agreement or change in any manner the present capitalization of Clearwire or Clearwire LLC or the voting rights of any class of shares of Clearwire (including any amendments to Clearwire’s Certificate of Incorporation or Bylaws).

(b) The obligations of the Stockholder specified in Sections 2(a)(i), (ii) and (iii) shall apply whether or not the Merger or any action described above is recommended by the Board of Directors of Clearwire (or any committee thereof).

(c) Except as expressly set forth in this Agreement, the Stockholder may vote the Clearwire Shares beneficially owned by it in its discretion on all matters submitted for the vote of stockholders of Clearwire.

3. Stop Transfer Instruction; Legend. The Stockholder hereby directs Clearwire to, promptly following the date hereof, deliver written instructions to Clearwire’s transfer agent stating that the Clearwire Shares owned by the Stockholder may not be Transferred (as hereinafter defined) during the Term without the prior written consent of Sprint or except as provided in this Agreement and requesting that a legend be placed on the certificates (to the extent the Clearwire Shares are certificated) representing the Existing Clearwire Shares owned by the Stockholder as set forth below:

“The Securities represented by this certificate are subject to restrictions on transfer and may not be sold, transferred, pledged, encumbered, assigned, distributed, hypothecated, tendered or otherwise disposed of, including by way of merger, consolidation, share exchange or similar transaction, whether voluntarily or by operation of law, except in accordance with and subject to the terms and conditions of the Voting and Sale Agreement dated as of June 20, 2013, between the registered holder hereof and Sprint Nextel Corporation.”

4. No Inconsistent Agreements. The Stockholder hereby covenants and agrees that the Stockholder, except as expressly provided in this Agreement, (a) has not entered, and shall not enter at any time during the Term, into any voting agreement, voting trust or option agreement with respect to the Clearwire Shares owned by the Stockholder, (b) has not granted, and shall not grant at any time during the Term, a proxy, a consent or power of attorney with respect to a CIC Stockholders Meeting and with respect to the Clearwire Shares owned by the Stockholder, and (c) has not taken and shall not take any action with the express intention of making any representation or warranty of the Stockholder contained herein untrue or incorrect or preventing or disabling the Stockholder from performing any of its obligations under this Agreement.

 

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5. Representations and Warranties of the Stockholder. The Stockholder hereby represents and warrants to Sprint as follows:

(a) Authorization; Validity of Agreement; Necessary Action. The Stockholder (i) is duly organized, validly existing and in good standing under the Laws of the jurisdiction of its organization and (ii) has the requisite corporate or other entity power and authority to execute and deliver this Agreement, and to perform the Stockholder’s obligations hereunder and to consummate the transactions contemplated hereby. No other corporate or other entity actions or proceedings on the part of the Stockholder are necessary to authorize the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby. This Agreement has been duly executed and delivered by the Stockholder and, assuming this Agreement constitutes a valid and binding obligation of and is enforceable against Sprint, constitutes a valid and binding obligation of the Stockholder, enforceable against the Stockholder in accordance with its terms, subject to (A) bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting or relating to the enforcement of creditors’ rights generally, and (B) general equitable principles.

(b) Ownership. As of the date hereof, (i) Schedule A attached hereto sets forth the Existing Clearwire Shares beneficially owned by the Stockholder and (ii) such Existing Clearwire Shares constitute all of the shares of Clearwire Common Stock beneficially owned by the Stockholder. The Stockholder has owned all of such Existing Clearwire Shares as of and at all times since the Record Date. There are no existing agreements or arrangements between the Stockholder or any of its affiliates, on the one hand, and any other Person, on the other hand, relating to the Existing Clearwire Shares beneficially owned by the Stockholder or any of its affiliates that would, either individually or in the aggregate, prevent, delay or impair the ability of the Stockholder to perform its obligations hereunder and to consummate the transactions contemplated hereby on a timely basis. The Stockholder has and will have at all times, directly or indirectly, through the Term, sole voting power, sole power of disposition, sole power to issue instructions with respect to the matters set forth in this Agreement, and sole power to agree to all of the matters set forth in this Agreement, in each case with respect to all of the Clearwire Shares beneficially owned by the Stockholder at any closing date of the Merger or any Sale, with no limitations, qualifications or restrictions on such rights, subject to applicable federal securities laws and the terms of this Agreement. Subject to Sections 7(a) and 11(a), the Stockholder has and, until consummation of the Merger or the Sale (as defined below) by the Stockholder of the Clearwire Shares of the Stockholder, will have, good and marketable title to the Clearwire Shares owned by the Stockholder, free and clear of any security interests, liens, claims, pledges, options, rights of first refusal, agreements, limitations on voting rights, charges and encumbrances of any nature whatsoever (“Liens”), except for Liens expressly provided in this Agreement.

(c) No Violation. The execution and delivery of this Agreement by the Stockholder do not, and the performance by the Stockholder of its obligations under this Agreement will not, (i) conflict with or violate any Law applicable to the Stockholder or by which any of its assets or properties is bound, (ii) conflict with any certificate of incorporation, bylaws or other organizational documents of the Stockholder or (iii) conflict with, result in any breach of or constitute a default (or an event that with notice or lapse of time or both would

 

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become a default) under, or give to others any rights of termination, amendment, acceleration or cancellation of, or require payment under, or require redemption or repurchase of or otherwise require the purchase or sale of, or result in the creation of any Lien on, the Existing Clearwire Shares owned by the Stockholder pursuant to, any note, bond, mortgage, indenture, contract, agreement, lease, license, permit, franchise or other instrument or obligation to which the Stockholder is a party or by which the Stockholder or any of the Existing Clearwire Shares owned by the Stockholder is bound, except for any of the foregoing as would not, either individually or in the aggregate, prevent or delay or impair the ability of the Stockholder to perform its obligations hereunder or to consummate the transactions contemplated hereby on a timely basis.

(d) Consents and Approvals. The execution and delivery of this Agreement by the Stockholder do not, and the performance by the Stockholder of its obligations under this Agreement will not, require the Stockholder to obtain any consent, approval, authorization or permit of, or to make any filing (other than filings under the Securities Exchange Act of 1934, as amended (the “Exchange Act”)) with or notification to, any Governmental Entity based on any applicable Law, except for any of the foregoing as would not, either individually or in the aggregate, prevent or delay or impair the ability of the Stockholder to perform its obligations hereunder or to consummate the transactions contemplated hereby on a timely basis.

(e) Absence of Litigation. As of the date hereof, there is no suit, action, investigation or proceeding pending or, to the knowledge of the Stockholder, threatened against the Stockholder before or by any Governmental Entity that would impair the ability of the Stockholder to perform its obligations hereunder or to consummate the transactions contemplated hereby on a timely basis.

(f) Reliance by Sprint. The Stockholder understands, acknowledges and agrees that Sprint is proposing and, if executed and delivered by Clearwire, entering into the Third Amendment in reliance upon the Stockholder’s execution and delivery of this Agreement. The Stockholder understands and acknowledges that the Existing Merger Agreement governs the terms of the Merger and the other matters specified therein and if the Third Amendment is executed and delivered by the parties thereto, the Merger Agreement will govern the terms of the Merger and the other matters specified therein.

6. Representations and Warranties of Sprint. Sprint hereby represents and warrants to the Stockholder as follows:

(a) Authorization; Validity of Agreement; Necessary Action. It (i) is duly organized, validly existing and in good standing under the Laws of the jurisdiction of its organization and (ii) has the corporate power and authority to execute and deliver this Agreement, and to perform its obligations hereunder and to consummate the transactions contemplated hereby. No other actions or proceedings on its part are necessary to authorize the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby. This Agreement has been duly executed and delivered by it and, assuming this Agreement constitutes a valid and binding obligation of and is enforceable against the Stockholder, this

 

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Agreement constitutes its valid and binding obligation, enforceable against it in accordance with the terms hereof, subject to (A) bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting or relating to the enforcement of creditors’ rights generally, and (B) general equitable principles.

(b) No Violation. Its execution and delivery of this Agreement does not, and its performance of its obligations under this Agreement will not, (i) conflict with or violate any Law applicable to it or by which any of its assets or properties is bound, (ii) conflict with its certificate of incorporation or bylaws or (iii) conflict with, result in any breach of or constitute a default (or an event that with notice or lapse of time or both would become a default) under, or give to others any rights of termination, amendment, acceleration or cancellation of, or require payment under, any note, bond, mortgage, indenture, contract, agreement, lease, license, permit, franchise or other instrument or obligation to which it is a party or by which it is bound, except for any of the foregoing as would not, either individually or in the aggregate, prevent or delay or impair its ability to perform its obligations hereunder or to consummate the transactions contemplated hereby on a timely basis.

(c) Consents and Approvals. Its execution and delivery of this Agreement does not, and, except for the receipt of the FCC Consent, its performance of its obligations under this Agreement will not, require it to obtain any consent, approval, authorization or permit of, or to make any filing with or notification to, any Governmental Entity based on any applicable Law, except for any of the foregoing as would not, either individually or in the aggregate, prevent or delay or impair its ability to perform its obligations hereunder or to consummate the transactions contemplated hereby on a timely basis.

7. Covenants of the Stockholder. The Stockholder hereby covenants and agrees that:

(a) Transfers. Except as expressly contemplated hereby or by the Existing Merger Agreement or the Merger Agreement or as required by a court of competent jurisdiction or by any applicable Law, during the time period from the date hereof through the expiration of the Term, the Stockholder shall not (directly or indirectly), sell, transfer, pledge, encumber, assign, distribute, hypothecate, tender or otherwise dispose of, including by way of merger, consolidation, share exchange or similar transaction, whether voluntarily or by operation of law (collectively, a “Transfer”), or enforce the provisions of any redemption, share purchase or sale, recapitalization or other agreement with Clearwire or any other person, or enter into any contract, option or other arrangement or understanding with respect to the voting of or any Transfer (whether by actual disposition or effective economic disposition due to hedging, cash settlement or otherwise) of, any of the Existing Clearwire Shares beneficially owned by the Stockholder, any Clearwire Shares acquired by the Stockholder after the date hereof, any securities exercisable or exchangeable for or convertible into shares of Clearwire Common Stock, any other capital stock of Clearwire or any interest in any of the foregoing. Notwithstanding the foregoing, upon prior written notice to Sprint containing the name of the transferee and the number of Clearwire Shares Transferred, the Stockholder shall be permitted to Transfer Clearwire Shares beneficially owned by the Stockholder to (i) any member of the group disclosed in the Stockholder’s

 

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Statement on Schedule 13D to be filed with the SEC disclosing this Agreement, or to any controlled Affiliate of any such member, provided that such member is a party to a voting agreement with Sprint of even date herewith substantially identical to this Agreement (and such member certifies to Sprint’s reasonable satisfaction that such transfer is to a controlled Affiliate of such member) or (ii) to any Affiliate of the Stockholder, provided such Affiliate agrees in writing with Sprint to be bound by the terms of this Agreement pursuant to a joinder or other documentation reasonably satisfactory to Sprint. No such Transfer to any such Affiliate or member or controlled Affiliate of such member shall relieve the Stockholder of any of its obligations pursuant to this Agreement.

(b) Stock Dividends and Distributions. In case of a stock dividend or distribution, or any change in Clearwire Common Stock by reason of any stock dividend or other distribution of stock, split-up, recapitalization, reverse stock split, reclassification, reincorporation, combination, exchange of shares or the like, the term “Clearwire Shares” shall be deemed to refer to and include the Clearwire Shares as well as all such stock dividends and stock distributions and any securities into which or for which any or all of the Clearwire Shares may be changed or exchanged or that are received in any such transaction.

(c) Additional Shares. Until the expiration of the Term, the Stockholder shall notify Sprint promptly (and in any event within two Business Days) in writing of the number of any additional Clearwire Shares acquired by the Stockholder, if any, after the date hereof.

(d) Prohibited Actions. The Stockholder agrees that, until the expiration of the Term, the Stockholder shall not, and shall not knowingly permit any of the Stockholder’s representatives or agents to, (i) engage in any conduct described in Section 4.3(b)(i), Section 4.3(b)(ii) or Section 4.3(b)(iii) of the Existing Merger Agreement (or such sections of the Merger Agreement if the Third Amendment is executed and delivered by the parties thereto) as it relates to an Acquisition Proposal (other than the Merger) or (ii) exercise, assert or perfect, or attempt to exercise, assert or perfect, any rights under Section 262 of the DGCL with respect to the Merger.

8. Sale of Clearwire Shares upon Termination of Merger Agreement.

(a) Unless the Effective Time has previously occurred, upon the earlier of (i) October 15, 2013 (the “End Date”) and (ii) the termination of the Merger Agreement in accordance with its terms, Sprint shall promptly deliver notice thereof to the Stockholder (the “Termination Notice”), provided that, if, after using all reasonable efforts to obtain all necessary governmental approvals and third party consents to permit the Sale (as defined below), Sprint has not obtained such approvals by the End Date, Sprint shall be permitted to extend the End Date to the earlier of (A) two Business Days after the date Sprint obtains such governmental approvals or third party consents and (B) November 28, 2013. Upon the earlier of (i) the End Date and (ii) receipt of such Termination Notice and in accordance with this Section 8, Sprint and the Stockholder shall consummate the purchase by Sprint of all of the Existing Clearwire Shares set forth opposite the Stockholder’s name on Schedule A attached hereto and, in Sprint’s sole discretion, all or any portion of any additional Clearwire Shares then beneficially owned by the Stockholder, at a cash sale price per

 

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Clearwire Share equal to the greatest of (A) the Merger Consideration, (B) the highest price per share of Clearwire Common Stock paid or to be paid in the Merger (or in any similar merger, consolidation or similar transaction involving Sprint or one or more of its Affiliates and Clearwire consummated or entered into prior to the End Date or the date of delivery of the Termination Notice) or (C) $5.00, without interest (the “Sale”). Each of Sprint and the Stockholder agrees that it will (a) consummate the applicable Sale in accordance with this Section 8 and (b) provide any consents, approvals or other documents reasonably necessary to consummate such Sale.

(b) The closing of the Sale with respect to the Stockholder will take place at a location designated by Sprint and, if not on the End Date as provided in Section 8(a), on a date designated by Sprint that is no later than three Business Days after delivery of the Termination Notice to the Stockholder provided that (i) if Sprint determines in its reasonable discretion that any governmental approvals are required to consummate the Sale, then the closing of the Sale will take place on the earlier of (A) three Business Days following the receipt of such governmental approvals and (B) November 28, 2013, and (ii) the Stockholder shall be permitted to delay the consummation of the Sale, but not beyond December 21, 2013, to the extent necessary to not incur liability under the short-swing profit rules under Section 16(b) of the Exchange Act and the rules and regulations promulgated thereunder. At the closing of any Sale, the Stockholder will deliver to Sprint (a) if the Clearwire Shares to be sold are certificated, a certificate or certificates for the Clearwire Shares to be sold, in each case accompanied by stock powers with signatures guaranteed and all necessary stock transfer taxes paid and stamps affixed, if necessary, or (b) if the Clearwire Shares to be sold are not certificated, proper transfer instructions from the Stockholder or the Stockholder’s lawfully constituted attorney-in-fact, accompanied by evidence that all necessary stock transfer taxes have been paid and evidence of compliance with appropriate procedures for transferring shares in uncertificated form, in either case against receipt of the purchase price therefore by certified or official bank check or by wire transfer of immediately available funds.

(c) Sprint’s right to acquire Clearwire Shares pursuant to this Section 8 may be exercised, at Sprint’s option, by any direct or indirect wholly-owned subsidiary of Sprint, provided no such delegation to any such Person shall relieve Sprint of its obligations hereunder. If Sprint desires for a direct or indirect wholly-owned subsidiary of Sprint to acquire Clearwire Shares pursuant to this Section 8, Sprint will notify the Stockholder of such in the Termination Notice.

(d) If the Sale occurs and at any time prior to the one-year anniversary of the consummation of the Sale, Sprint or any of its Affiliates acquires all, but not less than all, of the outstanding shares of Clearwire Common Stock not held by Sprint or any of its Affiliates, whether by merger, tender offer, purchase or other similar transaction (a “Subsequent Transaction”) at a price per share of Clearwire Common Stock in excess of the price paid in the Sale, then within five Business Days of the consummation of any Subsequent Transaction, Sprint shall pay or cause to be paid to the Stockholder, for each Clearwire Share purchased in the Sale, the difference between the price per share of Clearwire Common Stock paid in the Sale and the price per share of Clearwire Common

 

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Stock paid in the Subsequent Transaction. In the event that the consideration paid by Sprint or any such Affiliate consists in whole or in part of Sprint common stock or other securities of Sprint (“Reference Securities”), the value of such Reference Securities that are publicly-traded shall be determined by the average of the closing price of such Reference Securities for the five trading days immediately preceding the closing of the Subsequent Transaction. If such Reference Securities are not publicly-traded, the value shall be determined in good faith by the board of directors of Sprint or any committee thereof. For the avoidance of doubt, any award in excess of the price paid in the Sale in an appraisal proceeding in the State of Delaware shall not entitle the Stockholder to any payment pursuant to this Section 8(d).

9. Releases.

(a) The Stockholder, for the benefit of Sprint and Starburst and each of Sprint’s and Starburst’s controlling persons, officers, directors, stockholders, agents, affiliates, subsidiaries, employees, attorneys, advisors and assigns, past, present and future, in their capacity as such (Sprint and Starburst and each such person being a “Company Released Person”), hereby forever fully, unconditionally and irrevocably releases, waives and forever discharges, and covenants not to sue, any of the Company Released Persons for any and all claims, causes of action, actions, judgments, liens, debts, contracts, indebtedness, damages, losses, liabilities, rights, interests and demands of whatsoever kind or character (collectively, “Claims”) based on any event, fact, act, omission, or failure to act by the Company Released Persons, or any of them, whether known or unknown, occurring or existing prior to the execution of this Agreement, and arising out of or related to the Merger or the Merger Agreement and the Note Purchase Agreement and the transactions contemplated thereby; provided, however, that this waiver and release and covenant not to sue shall not include any Claims arising out of or related to any obligations under, or breach of, this Agreement.

(b) Each of Sprint and Starburst, for the benefit of the Stockholder and its controlling persons, officers, directors, stockholders, agents, affiliates, subsidiaries, employees, attorneys, advisors and assigns, past, present and future, in their capacity as such (each such person being a “Stockholder Released Person”), hereby forever fully, unconditionally and irrevocably releases, waives and forever discharges, and covenants not to sue, any of the Stockholder Released Persons, for any Claim based on any event, fact, act, omission or failure to act by such Stockholder Released Person, whether known or unknown, occurring or existing prior to the execution of this Agreement, and arising out of or related to the Merger or the Merger Agreement and the Note Purchase Agreement and the transactions contemplated thereby; provided, however, that this waiver and release and covenant not to sue shall not include any Claims arising out of or related to any obligations under, or breach of, this Agreement.

(c) It is the intention of the parties that the releases set forth above in subsections (a) and (b) of this Section 9 shall be effective as a bar to any and all matters released herein. In furtherance and not in limitation of such intention, the release described herein shall be, and shall remain in effect as, a full and complete release,

 

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notwithstanding the discovery or existence of any additional or different facts or claims. It is expressly understood and agreed that this Agreement is intended to cover and does cover not only all known facts and/or claims but also any further facts and/or claims not now known, suspected or anticipated, but which may later develop or should be discovered, including all the effects and consequences thereof.

(d) The foregoing releases shall bind the heirs, personal representatives, successors and assigns of each party, and inure to the benefit of each party and each party’s predecessors, successors, assigns, shareholders, directors, officers, partners, employees, agents subsidiaries and affiliates.

(e) The Stockholder (with respect to Section 9(a)) and Sprint and Starburst (with respect to Section 9(b)) (collectively, the “Releasors”) (i) represents, warrants and acknowledges that such Releasor has been fully advised by his, her or its attorney of the contents of Section 1542 of the Civil Code of the State of California, and (ii) hereby expressly waives the benefits thereof and any rights such Releasor may have thereunder. Section 1542 of the Civil Code of the State of California provides as follows:

“A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor.”

9.A. Indemnification.

(a) Sprint agrees to indemnify, defend and hold harmless the Stockholder and its Affiliates and its and its Affiliates’ respective officers, directors, employees, members, partners, equityholders, agents and each other Person, if any, controlling it or any of its Affiliates (each an “Indemnified Person”) from and against any and all losses, claims, suits, damages, liabilities and expenses, joint or several, to which any such Indemnified Person may become subject under applicable Law or otherwise relating to, arising out of or in connection with this Agreement or its performance hereunder, or any Proceeding relating to the foregoing regardless of whether any of such Indemnified Persons is a party thereto, and to reimburse each Indemnified Person for any documented reasonable legal or other expenses as they are incurred in connection with investigating, preparing, pursuing, responding to or defending any of the foregoing.

(b) Promptly after receipt by an Indemnified Person of notice of the commencement of any Proceedings, such Indemnified Person shall, if a claim is to be made hereunder against Sprint in respect thereof, notify Sprint in writing of the commencement thereof; provided that (i) the omission to so notify Sprint shall not relieve Sprint from any liability or obligation which it may have hereunder except to the extent Sprint has been actually and materially prejudiced by such failure and (ii) the omission to so notify Sprint shall not relieve it from any liability which it may have to an Indemnified Person otherwise than on account of these indemnity provisions. In case any such Proceedings are brought against any Indemnified Person and it notifies Sprint of the commencement thereof, Sprint shall be entitled to participate therein and, to the extent that it may elect by written notice delivered to the Indemnified Person, to assume the

 

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defense thereof with counsel reasonably satisfactory to the Stockholder; provided that if the defendants in any such Proceedings include both the Indemnified Person and Sprint and the Indemnified Person with the advice of counsel shall have reasonably concluded that there may be legal defenses available to it which are different from or additional to those available to Sprint and that representation of both Sprint and the Indemnified Person would be inappropriate or inadvisable due to actual or potential differing interests between Sprint and such Indemnified Person, the Indemnified Person shall have the right to select separate counsel not reasonably disapproved by Sprint to assert such legal defenses and to otherwise participate in the defense of such Proceedings on behalf of such Indemnified Person and Sprint shall not have the right to assume the defense thereof. Upon receipt of notice from Sprint to such Indemnified Person of its election to so assume the defense of such Proceedings and approval by the Indemnified Person of counsel, Sprint shall not be liable to such Indemnified Person for expenses incurred by the Indemnified Person in connection with the defense thereof (other than reasonable costs of investigation and of monitoring such Proceeding) unless (i) the Indemnified Person shall have employed separate counsel in connection with the assertion of legal defenses in accordance with the proviso to the immediately preceding sentence (it being understood, however, that Sprint shall not be liable for the expenses of more than one separate counsel (in addition to any local counsel), representing the Indemnified Persons who are parties to such Proceedings), (ii) Sprint shall not have employed counsel reasonably satisfactory to Stockholder to represent the Indemnified Person within a reasonable time after notice of commencement of the Proceedings or (iii) Sprint has authorized in writing the employment of counsel for the Indemnified Person.

(c) Sprint shall not be liable for any settlement of any Proceedings effected without its written consent (which consent shall not be unreasonably withheld), but if settled with its written consent or if there be a final judgment for the plaintiff in any such Proceedings, Sprint agrees to indemnify and hold harmless each Indemnified Person from and against any and all losses, claims, damages, liabilities and expenses by reason of such settlement or judgment. Notwithstanding the immediately preceding sentence, if at any time an Indemnified Person shall have requested Sprint to reimburse such Indemnified Person for legal or other expenses in connection with investigating, responding to or defending any Proceedings, Sprint shall be liable for any settlement of any Proceedings effected without its written consent if (i) such settlement is entered into more than 60 days after receipt by Sprint of such request for reimbursement and (ii) Sprint shall not have reimbursed such Indemnified Person in accordance with such request prior to the date of such settlement. Sprint shall not, without the prior written consent of Stockholder, effect any settlement of any pending or threatened Proceedings in respect of which indemnity could have been sought hereunder by an Indemnified Person unless such settlement (a) includes an unconditional release of such Indemnified Person in form and substance satisfactory to such Indemnified Person from all liability on claims that are the subject matter of such Proceedings, (b) does not include a statement as to an admission of fault, culpability or a failure to act by or on behalf of any such Indemnified Person, and (c) does not impose any restriction whatsoever on any Indemnified Person.

 

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(d) Notwithstanding any other provision of this Agreement, Sprint shall not be obligated pursuant to the terms of this Agreement:

(i) to indemnify with respect to claims initiated or brought voluntarily by an Indemnified Person and not by way of defense, except with respect to Proceedings brought to establish or enforce a right to indemnification under this Agreement; or

(ii) to indemnify an Indemnified Person for the payment of profits arising from the purchase and sale of securities in violation of Section 16(b) of the Securities Exchange Act of 1934, as amended, or any similar successor statute.

(e) In the event of payment under these indemnity provisions, Sprint shall be subrogated to the extent of such payment to all of the rights of recovery of an Indemnified Person, who shall execute all documents required and shall do all acts that may be necessary to secure such rights and to enable Sprint effectively to bring suit to enforce such rights.

10. [Intentionally omitted]

11. Miscellaneous.

(a) Termination. This Agreement shall terminate upon the earliest to occur of: (i) the Effective Time; (ii) the consummation of all of the Sales pursuant to this Agreement; and (iii) the written agreement of the Stockholder and Sprint; provided, however, that the Stockholder shall have the right to terminate this Agreement as to itself by written notice to Sprint if the Third Amendment is executed and delivered by the parties thereto and thereafter the terms of the Merger Agreement are amended or modified to reduce the amount of the Merger Consideration or change the form of the Merger Consideration. With respect to the Stockholder, the period from the date of this Agreement up to and through the termination of this Agreement in accordance with the foregoing is referred to herein as the “Term” (it being understood, for the avoidance of doubt, that the term “Term” shall be determined on a Stockholder-by-Stockholder basis). Notwithstanding the foregoing, however, (i) Sections 8(d), 9, 9A and 11(c) through 11(q) shall not terminate and shall remain in full force and effect after termination of this Agreement and no termination of this Agreement shall relieve any of the parties hereto from the consequences of any breach of this Agreement by such party prior to the termination of this Agreement, and (ii) if by 5:00 p.m. EDT on June 20, 2013, Clearwire shall not have executed and delivered the Third Amendment, this Agreement shall automatically terminate without further action by the parties hereto.

(b) Further Assurances. From time to time, (i) at Sprint’s request and without further consideration, the Stockholder shall execute and deliver such additional documents and take all such further action as may be reasonably necessary (without adverse consequences to the Stockholder) to consummate the transactions contemplated by this Agreement and (ii) at the Stockholder’s request and without further consideration, Sprint shall execute and deliver such additional documents and take all such further action as may be reasonably necessary

 

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(without adverse consequences to it) to consummate the transactions contemplated by this Agreement.

(c) No Ownership Interest. Without limiting any rights of Sprint hereunder, and except in the case of the consummation of the Sales, all rights, ownership and economic benefits of and relating to the Clearwire Shares shall remain vested in and belong to the Stockholder, and Sprint shall have no authority to exercise any power or authority to direct the Stockholder in the voting of any of the Clearwire Shares, except in each case as otherwise provided herein.

(d) Expenses. All costs and expenses (including legal fees) incurred by Sprint in connection with the preparation and negotiation of this Agreement shall be paid by Sprint. Sprint shall promptly following the request from time to time by the Stockholder reimburse the Stockholder for its documented (consisting of only invoices and not supporting detail) expenses (including fees and expenses of counsel) incurred since December 17, 2012 in connection with or arising out of the transactions contemplated by the Merger Agreement or other publicly-announced offers to acquire Clearwire, and the negotiation, execution and delivery and performance of this Agreement, and filings with the SEC, provided that Sprint’s reimbursement obligation pursuant to this Section 11(d) and Section 11(d) of each other voting agreement executed as of the date hereof by members of the Stockholder’s 13D (the “13D”) filing group shall not exceed $1,000,000 in the aggregate.

(e) Notices; Designated Representative. All notices or other communications hereunder shall be in writing and shall be deemed given if delivered personally, sent by nationally recognized overnight courier (providing proof of delivery) or mailed by prepaid registered or certified mail (return receipt requested) or sent by facsimile transmission (providing confirmation of such facsimile transmission) addressed as follows:

if to Sprint to:

Sprint Nextel Corporation

6200 Sprint Parkway

Overland Park, Kansas 66251

Attention:        General Counsel

Fax:    (913) 794-1432

with required copies to (which shall not constitute notice):

King & Spalding LLP

1180 Peachtree Street, N.E.

Atlanta, Georgia 30309

Attention:        Michael J. Egan

Fax:  (404) 572-5100

Skadden, Arps, Slate, Meagher & Flom LLP

Four Times Square

New York, NY 10036

 

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Attention:        Thomas H. Kennedy

                          Jeremy D. London

Fax: (212) 735-2000

if to the Stockholder, to the address set forth on the Stockholder’s signature page hereto, with a copy to (which shall not constitute notice) to such other person as noted on such signature page;

or as to any addressee to such other address as shall be furnished in writing by such addressee, and any such notice or communication shall be deemed to have been given as of the date received by the addressee as provided above; provided that any notice received by facsimile transmission or otherwise at the addressee’s location on any Business Day after 5:00 p.m. (addressee’s local time) shall be deemed to have been received by such addressee at 9:00 a.m. (addressee’s local time) on the next Business Day.

(f) Interpretation. The words “hereof,” “herein” and “hereunder” and words of similar import when used in this Agreement shall refer to this Agreement as a whole and not to any particular provision of this Agreement, and Section references are to this Agreement unless otherwise specified. Whenever the words “include,” “includes” or “including” are used in this Agreement, they shall be deemed to be followed by the words “without limitation”. Definitions used herein are applicable to the singular as well as the plural forms of such terms and pronouns shall include the corresponding masculine, feminine or neuter forms.

(g) Counterparts. This Agreement may be executed in two or more counterparts, all of which shall be considered one and the same agreement and shall become effective when counterparts have been signed by each of the parties and delivered to the other parties, it being understood that all parties need not sign the same counterpart. This Agreement may be executed and delivered by means of facsimile transmission or e-mailed signature pages, and the parties adopt any signatures so received as original signatures of the parties.

(h) Entire Agreement. This Agreement, together with the Merger Agreement as applicable, constitutes the entire agreement and supersedes all prior agreements and understandings, both written and oral, among the parties with respect to the subject matter hereof.

(i) Governing Law. This Agreement shall be governed by and construed in accordance with the Laws of the State of Delaware, without regard to principles of conflicts of law thereof.

(j) Venue. The parties (i) agree that any suit, action or proceeding arising out of or relating to this Agreement or the transactions contemplated hereby will be brought solely in the state or federal courts of the State of Delaware, (ii) consent to the exclusive jurisdiction of each such court in any suit, action or proceeding relating to arising out of this Agreement or the transactions contemplated hereby and (iii) waive any objection that it may have to the laying of venue in any such suit, action or proceeding in any such court.

 

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(k) Service of Process. Each party irrevocably consents to service of process in the manner provided for the giving of notices pursuant to this Agreement. Nothing in this Agreement will affect the right of a party to serve process in another manner permitted by Law.

(l) Waiver of Jury Trial. EACH PARTY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY ACTION, SUIT OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT, AND WHETHER MADE BY CLAIM, COUNTERCLAIM, THIRD PARTY CLAIM OR OTHERWISE.

(m) Amendment; Waiver. This Agreement may not be amended except by an instrument in writing signed on behalf of (i) the Stockholder and (ii) Sprint; provided that none of Section 9 of this Agreement, this Section 11(m) or Section 11(n) of this Agreement may be amended without an instrument in writing signed on behalf of Starburst. Each party may only waive any right of such party hereunder by an instrument in writing signed by such party and delivered to the other party or parties that are the intended beneficiary or beneficiaries of such waiver. If Sprint shall offer to amend or modify any voting agreement executed as of the date hereof with any member of the Stockholders’ 13D filing group, Sprint shall offer to make the same amendments or modifications to this Agreement.

(n) Specific Performance. Sprint acknowledges and agrees that the Stockholder would be damaged irreparably in the event any of the provisions of this Agreement are not performed in accordance with their specific terms or otherwise are breached. Accordingly, Sprint agrees that the Stockholder shall be entitled, without the necessity of posting any bond or security, any requirement for which is hereby waived by all parties hereto, to seek an injunction or injunctions to prevent breaches of the provisions of this Agreement and to enforce specifically this Agreement and the terms and provisions hereof, this being in addition to any other remedy to which the Stockholder shall be entitled at law or in equity. The Stockholder acknowledges and agrees that Sprint (and Starburst, with respect to the provisions hereof applicable to it) would be damaged irreparably in the event any of the provisions of this Agreement are not performed in accordance with their specific terms or otherwise are breached. Accordingly, the Stockholder agrees that Sprint (and Starburst, with respect to the provisions hereof applicable to it) shall be entitled, without the necessity of posting any bond or security, any requirement for which is hereby waived by all parties hereto, to seek an injunction or injunctions to prevent breaches of the provisions of this Agreement and to enforce specifically this Agreement and the terms and provisions hereof, this being in addition to any other remedy to which Sprint shall be entitled at law or in equity.

(o) Public Announcement; Disclosure. No Stockholder shall issue any press releases or otherwise make any public statements with respect to the transactions contemplated herein without the prior written consent of Sprint, except that (i) a Stockholder may, without the prior consent of Sprint, issue or cause the publication of any press release or other public announcement (including an amendment to the 13D) to the extent that so doing is required by Law and (ii) the Stockholder will, upon the request of Sprint, confirm

 

15


publicly that it has voted its Clearwire Shares in favor of the adoption of the Merger Agreement. The Stockholder hereby authorizes Sprint and Starburst to publish and disclose in any announcement or disclosure the execution of this Agreement and the transactions contemplated by this Agreement (including the nature of its commitments, arrangements and understandings under this Agreement). Each party will reasonably consult with the other parties hereto with respect to any proposed public announcement, including any 13D regarding the transactions contemplated by this Agreement.

(p) Severability. Any term or provision of this Agreement that is invalid or unenforceable in any situation in any jurisdiction shall not affect the validity or enforceability of the remaining terms and provisions hereof or the validity or enforceability of the offending term or provision in any other situation or in any other jurisdiction. If the final judgment of a court of competent jurisdiction declares that any term or provision hereof is invalid or unenforceable, the parties agree that the court making the determination of invalidity or unenforceability shall have the power to delete specific words or phrases, or to replace any invalid or unenforceable term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable term or provision, and this Agreement shall be enforceable as so modified after the expiration of the time within which the judgment may be appealed.

(q) Assignment; Third Party Beneficiaries. Neither this Agreement nor any of the rights, interests or obligations of any party hereunder shall be assigned by such party (whether by operation of law or otherwise) without the prior written consent of the other party; provided, however, that Sprint shall be permitted to transfer its rights hereunder to any affiliate of Sprint, so long as Sprint continues to be liable for its obligations under this Agreement. Subject to the preceding sentence, this Agreement will be binding upon, inure to the benefit of and be enforceable by the parties and their respective heirs, successors and permitted assigns. This Agreement is not intended to confer any rights or remedies hereunder upon any person or entity other than (i) the parties hereto and (ii) with respect to Section 9 of this Agreement, the Company Released Persons and the Stockholder Released Persons.

(r) Ownership of Shares. Any obligation, covenant, undertaking or agreement of the Stockholder under this Agreement shall include an obligation, covenant, undertaking and agreement of the Stockholder to cause each of its controlled Affiliates to the extent such controlled Affiliates own or beneficially own Clearwire Shares to fully comply with such obligation, covenant, undertaking and agreement of such controlled Affiliate as if it were a party hereto. In the event that any controlled Affiliate of the Stockholder, rather than the Stockholder, owns Clearwire Shares, then so long as the Stockholder causes such controlled Affiliate to fully comply with all the Stockholder’s obligations, covenants, undertakings and agreements set forth in this Agreement with respect to such Clearwire Shares, and such controlled Affiliate does so fully comply with all of the obligations, covenants, undertakings and agreements set forth in this Agreement, all the representations, warranties, covenants and agreements of the Stockholder set forth in this Agreement with respect to such Clearwire Shares shall be deemed to be accurate or to have been duly complied with by the Stockholder, as the case may be. If any controlled Affiliate of the Stockholder does

 

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not fully comply with the Stockholder’s obligations, covenants, undertakings and agreements set forth in this Agreement, the Stockholder shall be liable for any such non-compliance.

[Remainder of Page Intentionally Left Blank]

 

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IN WITNESS WHEREOF, each of the parties have signed or have caused this Agreement to be signed by their respective officers or other authorized persons thereunto duly authorized as of the date first above written.

 

SPRINT NEXTEL CORPORATION
By:  

/s/ Charles Wunsch

  Name:   Charles Wunsch
  Title:   General Counsel, Senior Vice President, Corporate Secretary
STARBURST II, INC. (solely for the purposes of Section 9, Section 11(m) and Section 11(n))
By:  

/s/ Ronald D. Fisher

  Name:   Ronald D. Fisher
  Title:   President


STOCKHOLDER:
GLENVIEW CAPITAL MANAGEMENT, LLC
By:  

/s/ Mark Horowitz

Name:   Mark Horowitz
Title:   Chief Operating Officer and General Counsel

with required copies to (which shall not constitute notice):

Sidley Austin LLP

787 Seventh Avenue

New York, NY 10019

Fax: 212-839-5599

Attn: Scott M. Freeman


Schedule A

Existing Clearwire Shares

 

Name of Stockholder

  

Number of Existing Clearwire Shares Beneficially Owned

Glenview Capital Management, LLC

   32,052,360 shares of Class A Common Stock
EX-99.69 5 d558039dex9969.htm EX-99.69 EX-99.69

Exhibit 99.69

Execution Copy

VOTING AND SALE AGREEMENT

THIS VOTING AND SALE AGREEMENT (this “Agreement”), dated as of June 20, 2013, is entered into among Sprint Nextel Corporation, a Kansas corporation (“Sprint”), the Person named on Schedule A hereto (the “Stockholder”), solely in its individual capacity as a stockholder of Clearwire Corporation, a Delaware corporation (“Clearwire”), and, solely for purposes of Section 9, Section 11(m) and Section 11(n) of this Agreement, Starburst II, Inc., a Delaware corporation (“Starburst”).

W I T N E S S E T H:

WHEREAS, Clearwire, Sprint and Collie Acquisition Corp., a Delaware corporation and a wholly owned subsidiary of Sprint (“Acquisition Corp.”), are parties to an Agreement and Plan of Merger, dated as of December 17, 2012 (as amended by the First Amendment to Agreement and Plan of Merger dated as of April 18, 2013 and the Second Amendment to Agreement and Plan of Merger dated as of May 21, 2013, the “Existing Merger Agreement”), whereby Acquisition Corp. will be merged with and into Clearwire (the “Merger”) with Clearwire surviving the Merger, upon the terms and subject to the conditions set forth in the Merger Agreement;

WHEREAS, Sprint has proposed to Clearwire entering into a Third Amendment to Agreement and Plan of Merger amending the Existing Merger Agreement (the “Third Amendment” and the Existing Merger Agreement as it will be so amended upon execution and delivery of the Third Amendment by all parties thereto, the “Merger Agreement”) providing for an increase in the Merger Consideration to $5.00 per share in cash, without interest, less applicable withholding taxes, and modifications to certain other terms and conditions;

WHEREAS, the Stockholder, together with funds controlled by the Stockholder, is, was as of April 2, 2013 (the “Record Date”) and at all times since the Record Date has been the sole beneficial owner and holds, held as of the Record Date and at all times since the Record Date has held sole voting power with respect to the shares of Class A common stock, par value $0.0001 per share, of Clearwire (the “Class A Common Stock” and, together with the Class B common stock, par value $0.0001 per share, of Clearwire, the “Clearwire Common Stock”), set forth opposite the Stockholder’s name on Schedule A attached hereto (all of such shares of Clearwire Common Stock being hereinafter referred to as the “Existing Clearwire Shares” and, together with any shares of Clearwire Common Stock or other voting capital stock of Clearwire and any securities convertible into or exercisable or exchangeable for shares of Clearwire Common Stock or other voting capital stock of Clearwire, in each case that the Stockholder has or acquires ownership of on or after the date hereof, as the “Clearwire Shares”); and

WHEREAS, as an inducement to the willingness of Sprint to enter into the Third Amendment, the Stockholder has agreed to vote all of its Clearwire Shares pursuant to, and in accordance with, the terms and conditions of this Agreement and to certain other matters set forth herein.


NOW, THEREFORE, in consideration of the foregoing and in consideration of the mutual covenants, promises, agreements, and releases contained herein, and for other valuable consideration, receipt of which is hereby acknowledged, and intending to be legally bound, the parties agree as follows:

1. Capitalized Terms. Capitalized terms used herein and not defined herein shall have the respective meanings ascribed to such terms in the Existing Merger Agreement or the Merger Agreement if the Third Amendment has been executed and delivered by the parties thereto.

2. Voting of Shares. (a) During the Term (as hereinafter defined), the Stockholder hereby irrevocably and unconditionally agrees that, at any annual, special or other meeting of the stockholders of Clearwire (“Clearwire Stockholders”) called for the purpose of voting upon the adoption of the Existing Merger Agreement or the Merger Agreement and the approval of the transactions contemplated by the Existing Merger Agreement or the Merger Agreement, the approval of matters subject to a vote of the Clearwire Stockholders pursuant to the Note Purchase Agreement, or the approval of any Acquisition Proposal (a “CIC Stockholders Meeting”), and at any adjournment or postponement thereof, the Stockholder will:

(i) appear in person or by proxy at each CIC Stockholders Meeting or otherwise cause all of the Clearwire Shares beneficially owned by the Stockholder at such time to be counted as present at such meeting for purposes of calculating a quorum (to the extent the Stockholder beneficially owned such shares on the record date for the CIC Stockholders Meeting);

(ii) vote (or cause to be voted) all of the Clearwire Shares beneficially owned by the Stockholder (to the extent the Stockholder beneficially owned such shares on the record date for the CIC Stockholders Meeting), in person or by proxy, (A) if the Third Amendment has been executed and delivered by the parties thereto, in favor of approving and adopting the Merger Agreement, (B) in favor of the matters to be voted upon by Clearwire Stockholders at the Parent Stockholders Meeting (as defined in the Note Purchase Agreement) pursuant to Section 7.01(c) of the Note Purchase Agreement (the “Note Issuance Required Vote”) and (C) if the Third Amendment has been executed and delivered by the parties thereto, in favor of any proposal to adjourn or postpone any CIC Stockholders Meeting to a later date (but prior to the expiration of the Term) if there are not sufficient votes for approval of such matters on the date on which such CIC Stockholders Meeting is held to vote on any of the foregoing matters (the “Covered Matters”); and

(iii) vote (or cause to be voted) all of the Clearwire Shares beneficially owned by the Stockholder at such time (to the extent the Stockholder beneficially owned such shares on the record date for the CIC Stockholders Meeting), in person or by proxy, against (A) any Acquisition Proposal (other than the Merger), (B) any action, proposal, transaction or agreement that could reasonably be expected to result in a breach of any covenant, representation or warranty or any other obligation or agreement of the Stockholder under this Agreement or, to the knowledge of the Stockholder, of Clearwire under the Merger Agreement or the Note Purchase Agreement and (C) any action, proposal, transaction or agreement that could reasonably be expected to impede, interfere with, delay, postpone,

 

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prevent, discourage, adversely affect or inhibit the timely consummation of the Merger, the issuance of the Notes (or Clearwire Common Stock or units of Clearwire Communications, LLC, a Delaware limited liability company (“Clearwire LLC”) for which such Notes will be exchangeable) pursuant to the Note Purchase Agreement or, to the knowledge of the Stockholder, the fulfillment of Sprint’s, Clearwire’s, Clearwire LLC’s or Acquisition Corp.’s conditions under the Merger Agreement or the Note Purchase Agreement or the Stockholder’s obligations under this Agreement or change in any manner the present capitalization of Clearwire or Clearwire LLC or the voting rights of any class of shares of Clearwire (including any amendments to Clearwire’s Certificate of Incorporation or Bylaws).

(b) The obligations of the Stockholder specified in Sections 2(a)(i), (ii) and (iii) shall apply whether or not the Merger or any action described above is recommended by the Board of Directors of Clearwire (or any committee thereof).

(c) Except as expressly set forth in this Agreement, the Stockholder may vote the Clearwire Shares beneficially owned by it in its discretion on all matters submitted for the vote of stockholders of Clearwire.

3. Stop Transfer Instruction; Legend. The Stockholder hereby directs Clearwire to, promptly following the date hereof, deliver written instructions to Clearwire’s transfer agent stating that the Clearwire Shares owned by the Stockholder may not be Transferred (as hereinafter defined) during the Term without the prior written consent of Sprint or except as provided in this Agreement and requesting that a legend be placed on the certificates (to the extent the Clearwire Shares are certificated) representing the Existing Clearwire Shares owned by the Stockholder as set forth below:

“The Securities represented by this certificate are subject to restrictions on transfer and may not be sold, transferred, pledged, encumbered, assigned, distributed, hypothecated, tendered or otherwise disposed of, including by way of merger, consolidation, share exchange or similar transaction, whether voluntarily or by operation of law, except in accordance with and subject to the terms and conditions of the Voting and Sale Agreement dated as of June 20, 2013, between the registered holder hereof and Sprint Nextel Corporation.”

4. No Inconsistent Agreements. The Stockholder hereby covenants and agrees that the Stockholder, except as expressly provided in this Agreement, (a) has not entered, and shall not enter at any time during the Term, into any voting agreement, voting trust or option agreement with respect to the Clearwire Shares owned by the Stockholder, (b) has not granted, and shall not grant at any time during the Term, a proxy, a consent or power of attorney with respect to a CIC Stockholders Meeting and with respect to the Clearwire Shares owned by the Stockholder, and (c) has not taken and shall not take any action with the express intention of making any representation or warranty of the Stockholder contained herein untrue or incorrect or preventing or disabling the Stockholder from performing any of its obligations under this Agreement.

 

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5. Representations and Warranties of the Stockholder. The Stockholder hereby represents and warrants to Sprint as follows:

(a) Authorization; Validity of Agreement; Necessary Action. The Stockholder (i) is duly organized, validly existing and in good standing under the Laws of the jurisdiction of its organization and (ii) has the requisite corporate or other entity power and authority to execute and deliver this Agreement, and to perform the Stockholder’s obligations hereunder and to consummate the transactions contemplated hereby. No other corporate or other entity actions or proceedings on the part of the Stockholder are necessary to authorize the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby. This Agreement has been duly executed and delivered by the Stockholder and, assuming this Agreement constitutes a valid and binding obligation of and is enforceable against Sprint, constitutes a valid and binding obligation of the Stockholder, enforceable against the Stockholder in accordance with its terms, subject to (A) bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting or relating to the enforcement of creditors’ rights generally, and (B) general equitable principles.

(b) Ownership. As of the date hereof, (i) Schedule A attached hereto sets forth the Existing Clearwire Shares beneficially owned by the Stockholder and (ii) such Existing Clearwire Shares constitute all of the shares of Clearwire Common Stock beneficially owned by the Stockholder. The Stockholder has owned all of such Existing Clearwire Shares as of and at all times since the Record Date. There are no existing agreements or arrangements between the Stockholder or any of its affiliates, on the one hand, and any other Person, on the other hand, relating to the Existing Clearwire Shares beneficially owned by the Stockholder or any of its affiliates that would, either individually or in the aggregate, prevent, delay or impair the ability of the Stockholder to perform its obligations hereunder and to consummate the transactions contemplated hereby on a timely basis. The Stockholder has and will have at all times, directly or indirectly, through the Term, sole voting power, sole power of disposition, sole power to issue instructions with respect to the matters set forth in this Agreement, and sole power to agree to all of the matters set forth in this Agreement, in each case with respect to all of the Clearwire Shares beneficially owned by the Stockholder at any closing date of the Merger or any Sale, with no limitations, qualifications or restrictions on such rights, subject to applicable federal securities laws and the terms of this Agreement. Subject to Sections 7(a) and 11(a), the Stockholder has and, until consummation of the Merger or the Sale (as defined below) by the Stockholder of the Clearwire Shares of the Stockholder, will have, good and marketable title to the Clearwire Shares owned by the Stockholder, free and clear of any security interests, liens, claims, pledges, options, rights of first refusal, agreements, limitations on voting rights, charges and encumbrances of any nature whatsoever (“Liens”), except for Liens expressly provided in this Agreement.

(c) No Violation. The execution and delivery of this Agreement by the Stockholder do not, and the performance by the Stockholder of its obligations under this Agreement will not, (i) conflict with or violate any Law applicable to the Stockholder or by which any of its assets or properties is bound, (ii) conflict with any certificate of incorporation, bylaws or other organizational documents of the Stockholder or (iii) conflict with, result in any breach of or constitute a default (or an event that with notice or lapse of time or both would

 

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become a default) under, or give to others any rights of termination, amendment, acceleration or cancellation of, or require payment under, or require redemption or repurchase of or otherwise require the purchase or sale of, or result in the creation of any Lien on, the Existing Clearwire Shares owned by the Stockholder pursuant to, any note, bond, mortgage, indenture, contract, agreement, lease, license, permit, franchise or other instrument or obligation to which the Stockholder is a party or by which the Stockholder or any of the Existing Clearwire Shares owned by the Stockholder is bound, except for any of the foregoing as would not, either individually or in the aggregate, prevent or delay or impair the ability of the Stockholder to perform its obligations hereunder or to consummate the transactions contemplated hereby on a timely basis.

(d) Consents and Approvals. The execution and delivery of this Agreement by the Stockholder do not, and the performance by the Stockholder of its obligations under this Agreement will not, require the Stockholder to obtain any consent, approval, authorization or permit of, or to make any filing (other than filings under the Securities Exchange Act of 1934, as amended (the “Exchange Act”)) with or notification to, any Governmental Entity based on any applicable Law, except for any of the foregoing as would not, either individually or in the aggregate, prevent or delay or impair the ability of the Stockholder to perform its obligations hereunder or to consummate the transactions contemplated hereby on a timely basis.

(e) Absence of Litigation. As of the date hereof, there is no suit, action, investigation or proceeding pending or, to the knowledge of the Stockholder, threatened against the Stockholder before or by any Governmental Entity that would impair the ability of the Stockholder to perform its obligations hereunder or to consummate the transactions contemplated hereby on a timely basis.

(f) Reliance by Sprint. The Stockholder understands, acknowledges and agrees that Sprint is proposing and, if executed and delivered by Clearwire, entering into the Third Amendment in reliance upon the Stockholder’s execution and delivery of this Agreement. The Stockholder understands and acknowledges that the Existing Merger Agreement governs the terms of the Merger and the other matters specified therein and if the Third Amendment is executed and delivered by the parties thereto, the Merger Agreement will govern the terms of the Merger and the other matters specified therein.

6. Representations and Warranties of Sprint. Sprint hereby represents and warrants to the Stockholder as follows:

(a) Authorization; Validity of Agreement; Necessary Action. It (i) is duly organized, validly existing and in good standing under the Laws of the jurisdiction of its organization and (ii) has the corporate power and authority to execute and deliver this Agreement, and to perform its obligations hereunder and to consummate the transactions contemplated hereby. No other actions or proceedings on its part are necessary to authorize the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby. This Agreement has been duly executed and delivered by it and, assuming this Agreement constitutes a valid and binding obligation of and is enforceable against the Stockholder, this

 

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Agreement constitutes its valid and binding obligation, enforceable against it in accordance with the terms hereof, subject to (A) bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting or relating to the enforcement of creditors’ rights generally, and (B) general equitable principles.

(b) No Violation. Its execution and delivery of this Agreement does not, and its performance of its obligations under this Agreement will not, (i) conflict with or violate any Law applicable to it or by which any of its assets or properties is bound, (ii) conflict with its certificate of incorporation or bylaws or (iii) conflict with, result in any breach of or constitute a default (or an event that with notice or lapse of time or both would become a default) under, or give to others any rights of termination, amendment, acceleration or cancellation of, or require payment under, any note, bond, mortgage, indenture, contract, agreement, lease, license, permit, franchise or other instrument or obligation to which it is a party or by which it is bound, except for any of the foregoing as would not, either individually or in the aggregate, prevent or delay or impair its ability to perform its obligations hereunder or to consummate the transactions contemplated hereby on a timely basis.

(c) Consents and Approvals. Its execution and delivery of this Agreement does not, and, except for the receipt of the FCC Consent, its performance of its obligations under this Agreement will not, require it to obtain any consent, approval, authorization or permit of, or to make any filing with or notification to, any Governmental Entity based on any applicable Law, except for any of the foregoing as would not, either individually or in the aggregate, prevent or delay or impair its ability to perform its obligations hereunder or to consummate the transactions contemplated hereby on a timely basis.

7. Covenants of the Stockholder. The Stockholder hereby covenants and agrees that:

(a) Transfers. Except as expressly contemplated hereby or by the Existing Merger Agreement or the Merger Agreement or as required by a court of competent jurisdiction or by any applicable Law, during the time period from the date hereof through the expiration of the Term, the Stockholder shall not (directly or indirectly), sell, transfer, pledge, encumber, assign, distribute, hypothecate, tender or otherwise dispose of, including by way of merger, consolidation, share exchange or similar transaction, whether voluntarily or by operation of law (collectively, a “Transfer”), or enforce the provisions of any redemption, share purchase or sale, recapitalization or other agreement with Clearwire or any other person, or enter into any contract, option or other arrangement or understanding with respect to the voting of or any Transfer (whether by actual disposition or effective economic disposition due to hedging, cash settlement or otherwise) of, any of the Existing Clearwire Shares beneficially owned by the Stockholder, any Clearwire Shares acquired by the Stockholder after the date hereof, any securities exercisable or exchangeable for or convertible into shares of Clearwire Common Stock, any other capital stock of Clearwire or any interest in any of the foregoing. Notwithstanding the foregoing, upon prior written notice to Sprint containing the name of the transferee and the number of Clearwire Shares Transferred, the Stockholder shall be permitted to Transfer Clearwire Shares beneficially owned by the Stockholder to (i) any member of the group disclosed in the Stockholder’s

 

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Statement on Schedule 13D to be filed with the SEC disclosing this Agreement, or to any controlled Affiliate of any such member, provided that such member is a party to a voting agreement with Sprint of even date herewith substantially identical to this Agreement (and such member certifies to Sprint’s reasonable satisfaction that such transfer is to a controlled Affiliate of such member) or (ii) to any Affiliate of the Stockholder, provided such Affiliate agrees in writing with Sprint to be bound by the terms of this Agreement pursuant to a joinder or other documentation reasonably satisfactory to Sprint. No such Transfer to any such Affiliate or member or controlled Affiliate of such member shall relieve the Stockholder of any of its obligations pursuant to this Agreement.

(b) Stock Dividends and Distributions. In case of a stock dividend or distribution, or any change in Clearwire Common Stock by reason of any stock dividend or other distribution of stock, split-up, recapitalization, reverse stock split, reclassification, reincorporation, combination, exchange of shares or the like, the term “Clearwire Shares” shall be deemed to refer to and include the Clearwire Shares as well as all such stock dividends and stock distributions and any securities into which or for which any or all of the Clearwire Shares may be changed or exchanged or that are received in any such transaction.

(c) Additional Shares. Until the expiration of the Term, the Stockholder shall notify Sprint promptly (and in any event within two Business Days) in writing of the number of any additional Clearwire Shares acquired by the Stockholder, if any, after the date hereof.

(d) Prohibited Actions. The Stockholder agrees that, until the expiration of the Term, the Stockholder shall not, and shall not knowingly permit any of the Stockholder’s representatives or agents to, (i) engage in any conduct described in Section 4.3(b)(i), Section 4.3(b)(ii) or Section 4.3(b)(iii) of the Existing Merger Agreement (or such sections of the Merger Agreement if the Third Amendment is executed and delivered by the parties thereto) as it relates to an Acquisition Proposal (other than the Merger) or (ii) exercise, assert or perfect, or attempt to exercise, assert or perfect, any rights under Section 262 of the DGCL with respect to the Merger.

8. Sale of Clearwire Shares upon Termination of Merger Agreement.

(a) Unless the Effective Time has previously occurred, upon the earlier of (i) October 15, 2013 (the “End Date”) and (ii) the termination of the Merger Agreement in accordance with its terms, Sprint shall promptly deliver notice thereof to the Stockholder (the “Termination Notice”), provided that, if, after using all reasonable efforts to obtain all necessary governmental approvals and third party consents to permit the Sale (as defined below), Sprint has not obtained such approvals by the End Date, Sprint shall be permitted to extend the End Date to the earlier of (A) two Business Days after the date Sprint obtains such governmental approvals or third party consents and (B) November 28, 2013. Upon the earlier of (i) the End Date and (ii) receipt of such Termination Notice and in accordance with this Section 8, Sprint and the Stockholder shall consummate the purchase by Sprint of all of the Existing Clearwire Shares set forth opposite the Stockholder’s name on Schedule A attached hereto and, in Sprint’s sole discretion, all or any portion of any additional Clearwire Shares then beneficially owned by the Stockholder, at a cash sale price per

 

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Clearwire Share equal to the greatest of (A) the Merger Consideration, (B) the highest price per share of Clearwire Common Stock paid or to be paid in the Merger (or in any similar merger, consolidation or similar transaction involving Sprint or one or more of its Affiliates and Clearwire consummated or entered into prior to the End Date or the date of delivery of the Termination Notice) or (C) $5.00, without interest (the “Sale”). Each of Sprint and the Stockholder agrees that it will (a) consummate the applicable Sale in accordance with this Section 8 and (b) provide any consents, approvals or other documents reasonably necessary to consummate such Sale.

(b) The closing of the Sale with respect to the Stockholder will take place at a location designated by Sprint and, if not on the End Date as provided in Section 8(a), on a date designated by Sprint that is no later than three Business Days after delivery of the Termination Notice to the Stockholder provided that (i) if Sprint determines in its reasonable discretion that any governmental approvals are required to consummate the Sale, then the closing of the Sale will take place on the earlier of (A) three Business Days following the receipt of such governmental approvals and (B) November 28, 2013, and (ii) the Stockholder shall be permitted to delay the consummation of the Sale, but not beyond December 21, 2013, to the extent necessary to not incur liability under the short-swing profit rules under Section 16(b) of the Exchange Act and the rules and regulations promulgated thereunder. At the closing of any Sale, the Stockholder will deliver to Sprint (a) if the Clearwire Shares to be sold are certificated, a certificate or certificates for the Clearwire Shares to be sold, in each case accompanied by stock powers with signatures guaranteed and all necessary stock transfer taxes paid and stamps affixed, if necessary, or (b) if the Clearwire Shares to be sold are not certificated, proper transfer instructions from the Stockholder or the Stockholder’s lawfully constituted attorney-in-fact, accompanied by evidence that all necessary stock transfer taxes have been paid and evidence of compliance with appropriate procedures for transferring shares in uncertificated form, in either case against receipt of the purchase price therefore by certified or official bank check or by wire transfer of immediately available funds.

(c) Sprint’s right to acquire Clearwire Shares pursuant to this Section 8 may be exercised, at Sprint’s option, by any direct or indirect wholly-owned subsidiary of Sprint, provided no such delegation to any such Person shall relieve Sprint of its obligations hereunder. If Sprint desires for a direct or indirect wholly-owned subsidiary of Sprint to acquire Clearwire Shares pursuant to this Section 8, Sprint will notify the Stockholder of such in the Termination Notice.

(d) If the Sale occurs and at any time prior to the one-year anniversary of the consummation of the Sale, Sprint or any of its Affiliates acquires all, but not less than all, of the outstanding shares of Clearwire Common Stock not held by Sprint or any of its Affiliates, whether by merger, tender offer, purchase or other similar transaction (a “Subsequent Transaction”) at a price per share of Clearwire Common Stock in excess of the price paid in the Sale, then within five Business Days of the consummation of any Subsequent Transaction, Sprint shall pay or cause to be paid to the Stockholder, for each Clearwire Share purchased in the Sale, the difference between the price per share of Clearwire Common Stock paid in the Sale and the price per share of Clearwire Common

 

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Stock paid in the Subsequent Transaction. In the event that the consideration paid by Sprint or any such Affiliate consists in whole or in part of Sprint common stock or other securities of Sprint (“Reference Securities”), the value of such Reference Securities that are publicly-traded shall be determined by the average of the closing price of such Reference Securities for the five trading days immediately preceding the closing of the Subsequent Transaction. If such Reference Securities are not publicly-traded, the value shall be determined in good faith by the board of directors of Sprint or any committee thereof. For the avoidance of doubt, any award in excess of the price paid in the Sale in an appraisal proceeding in the State of Delaware shall not entitle the Stockholder to any payment pursuant to this Section 8(d).

9. Releases.

(a) The Stockholder, for the benefit of Sprint and Starburst and each of Sprint’s and Starburst’s controlling persons, officers, directors, stockholders, agents, affiliates, subsidiaries, employees, attorneys, advisors and assigns, past, present and future, in their capacity as such (Sprint and Starburst and each such person being a “Company Released Person”), hereby forever fully, unconditionally and irrevocably releases, waives and forever discharges, and covenants not to sue, any of the Company Released Persons for any and all claims, causes of action, actions, judgments, liens, debts, contracts, indebtedness, damages, losses, liabilities, rights, interests and demands of whatsoever kind or character (collectively, “Claims”) based on any event, fact, act, omission, or failure to act by the Company Released Persons, or any of them, whether known or unknown, occurring or existing prior to the execution of this Agreement, and arising out of or related to the Merger or the Merger Agreement and the Note Purchase Agreement and the transactions contemplated thereby; provided, however, that this waiver and release and covenant not to sue shall not include any Claims arising out of or related to any obligations under, or breach of, this Agreement.

(b) Each of Sprint and Starburst, for the benefit of the Stockholder and its controlling persons, officers, directors, stockholders, agents, affiliates, subsidiaries, employees, attorneys, advisors and assigns, past, present and future, in their capacity as such (each such person being a “Stockholder Released Person”), hereby forever fully, unconditionally and irrevocably releases, waives and forever discharges, and covenants not to sue, any of the Stockholder Released Persons, for any Claim based on any event, fact, act, omission or failure to act by such Stockholder Released Person, whether known or unknown, occurring or existing prior to the execution of this Agreement, and arising out of or related to the Merger or the Merger Agreement and the Note Purchase Agreement and the transactions contemplated thereby; provided, however, that this waiver and release and covenant not to sue shall not include any Claims arising out of or related to any obligations under, or breach of, this Agreement.

(c) It is the intention of the parties that the releases set forth above in subsections (a) and (b) of this Section 9 shall be effective as a bar to any and all matters released herein. In furtherance and not in limitation of such intention, the release described herein shall be, and shall remain in effect as, a full and complete release,

 

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notwithstanding the discovery or existence of any additional or different facts or claims. It is expressly understood and agreed that this Agreement is intended to cover and does cover not only all known facts and/or claims but also any further facts and/or claims not now known, suspected or anticipated, but which may later develop or should be discovered, including all the effects and consequences thereof.

(d) The foregoing releases shall bind the heirs, personal representatives, successors and assigns of each party, and inure to the benefit of each party and each party’s predecessors, successors, assigns, shareholders, directors, officers, partners, employees, agents subsidiaries and affiliates.

(e) The Stockholder (with respect to Section 9(a)) and Sprint and Starburst (with respect to Section 9(b)) (collectively, the “Releasors”) (i) represents, warrants and acknowledges that such Releasor has been fully advised by his, her or its attorney of the contents of Section 1542 of the Civil Code of the State of California, and (ii) hereby expressly waives the benefits thereof and any rights such Releasor may have thereunder. Section 1542 of the Civil Code of the State of California provides as follows:

“A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor.”

9.A. Indemnification.

(a) Sprint agrees to indemnify, defend and hold harmless the Stockholder and its Affiliates and its and its Affiliates’ respective officers, directors, employees, members, partners, equityholders, agents and each other Person, if any, controlling it or any of its Affiliates (each an “Indemnified Person”) from and against any and all losses, claims, suits, damages, liabilities and expenses, joint or several, to which any such Indemnified Person may become subject under applicable Law or otherwise relating to, arising out of or in connection with this Agreement or its performance hereunder, or any Proceeding relating to the foregoing regardless of whether any of such Indemnified Persons is a party thereto, and to reimburse each Indemnified Person for any documented reasonable legal or other expenses as they are incurred in connection with investigating, preparing, pursuing, responding to or defending any of the foregoing.

(b) Promptly after receipt by an Indemnified Person of notice of the commencement of any Proceedings, such Indemnified Person shall, if a claim is to be made hereunder against Sprint in respect thereof, notify Sprint in writing of the commencement thereof; provided that (i) the omission to so notify Sprint shall not relieve Sprint from any liability or obligation which it may have hereunder except to the extent Sprint has been actually and materially prejudiced by such failure and (ii) the omission to so notify Sprint shall not relieve it from any liability which it may have to an Indemnified Person otherwise than on account of these indemnity provisions. In case any such Proceedings are brought against any Indemnified Person and it notifies Sprint of the commencement thereof, Sprint shall be entitled to participate therein and, to the extent that it may elect by written notice delivered to the Indemnified Person, to assume the

 

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defense thereof with counsel reasonably satisfactory to the Stockholder; provided that if the defendants in any such Proceedings include both the Indemnified Person and Sprint and the Indemnified Person with the advice of counsel shall have reasonably concluded that there may be legal defenses available to it which are different from or additional to those available to Sprint and that representation of both Sprint and the Indemnified Person would be inappropriate or inadvisable due to actual or potential differing interests between Sprint and such Indemnified Person, the Indemnified Person shall have the right to select separate counsel not reasonably disapproved by Sprint to assert such legal defenses and to otherwise participate in the defense of such Proceedings on behalf of such Indemnified Person and Sprint shall not have the right to assume the defense thereof. Upon receipt of notice from Sprint to such Indemnified Person of its election to so assume the defense of such Proceedings and approval by the Indemnified Person of counsel, Sprint shall not be liable to such Indemnified Person for expenses incurred by the Indemnified Person in connection with the defense thereof (other than reasonable costs of investigation and of monitoring such Proceeding) unless (i) the Indemnified Person shall have employed separate counsel in connection with the assertion of legal defenses in accordance with the proviso to the immediately preceding sentence (it being understood, however, that Sprint shall not be liable for the expenses of more than one separate counsel (in addition to any local counsel), representing the Indemnified Persons who are parties to such Proceedings), (ii) Sprint shall not have employed counsel reasonably satisfactory to Stockholder to represent the Indemnified Person within a reasonable time after notice of commencement of the Proceedings or (iii) Sprint has authorized in writing the employment of counsel for the Indemnified Person.

(c) Sprint shall not be liable for any settlement of any Proceedings effected without its written consent (which consent shall not be unreasonably withheld), but if settled with its written consent or if there be a final judgment for the plaintiff in any such Proceedings, Sprint agrees to indemnify and hold harmless each Indemnified Person from and against any and all losses, claims, damages, liabilities and expenses by reason of such settlement or judgment. Notwithstanding the immediately preceding sentence, if at any time an Indemnified Person shall have requested Sprint to reimburse such Indemnified Person for legal or other expenses in connection with investigating, responding to or defending any Proceedings, Sprint shall be liable for any settlement of any Proceedings effected without its written consent if (i) such settlement is entered into more than 60 days after receipt by Sprint of such request for reimbursement and (ii) Sprint shall not have reimbursed such Indemnified Person in accordance with such request prior to the date of such settlement. Sprint shall not, without the prior written consent of Stockholder, effect any settlement of any pending or threatened Proceedings in respect of which indemnity could have been sought hereunder by an Indemnified Person unless such settlement (a) includes an unconditional release of such Indemnified Person in form and substance satisfactory to such Indemnified Person from all liability on claims that are the subject matter of such Proceedings, (b) does not include a statement as to an admission of fault, culpability or a failure to act by or on behalf of any such Indemnified Person, and (c) does not impose any restriction whatsoever on any Indemnified Person.

 

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(d) Notwithstanding any other provision of this Agreement, Sprint shall not be obligated pursuant to the terms of this Agreement:

(i) to indemnify with respect to claims initiated or brought voluntarily by an Indemnified Person and not by way of defense, except with respect to Proceedings brought to establish or enforce a right to indemnification under this Agreement; or

(ii) to indemnify an Indemnified Person for the payment of profits arising from the purchase and sale of securities in violation of Section 16(b) of the Securities Exchange Act of 1934, as amended, or any similar successor statute.

(e) In the event of payment under these indemnity provisions, Sprint shall be subrogated to the extent of such payment to all of the rights of recovery of an Indemnified Person, who shall execute all documents required and shall do all acts that may be necessary to secure such rights and to enable Sprint effectively to bring suit to enforce such rights.

10. [Intentionally omitted]

11. Miscellaneous.

(a) Termination. This Agreement shall terminate upon the earliest to occur of: (i) the Effective Time; (ii) the consummation of all of the Sales pursuant to this Agreement; and (iii) the written agreement of the Stockholder and Sprint; provided, however, that the Stockholder shall have the right to terminate this Agreement as to itself by written notice to Sprint if the Third Amendment is executed and delivered by the parties thereto and thereafter the terms of the Merger Agreement are amended or modified to reduce the amount of the Merger Consideration or change the form of the Merger Consideration. With respect to the Stockholder, the period from the date of this Agreement up to and through the termination of this Agreement in accordance with the foregoing is referred to herein as the “Term” (it being understood, for the avoidance of doubt, that the term “Term” shall be determined on a Stockholder-by-Stockholder basis). Notwithstanding the foregoing, however, (i) Sections 8(d), 9, 9A and 11(c) through 11(q) shall not terminate and shall remain in full force and effect after termination of this Agreement and no termination of this Agreement shall relieve any of the parties hereto from the consequences of any breach of this Agreement by such party prior to the termination of this Agreement, and (ii) if by 5:00 p.m. EDT on June 20, 2013, Clearwire shall not have executed and delivered the Third Amendment, this Agreement shall automatically terminate without further action by the parties hereto.

(b) Further Assurances. From time to time, (i) at Sprint’s request and without further consideration, the Stockholder shall execute and deliver such additional documents and take all such further action as may be reasonably necessary (without adverse consequences to the Stockholder) to consummate the transactions contemplated by this Agreement and (ii) at the Stockholder’s request and without further consideration, Sprint shall execute and deliver such additional documents and take all such further action as may be reasonably necessary

 

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(without adverse consequences to it) to consummate the transactions contemplated by this Agreement.

(c) No Ownership Interest. Without limiting any rights of Sprint hereunder, and except in the case of the consummation of the Sales, all rights, ownership and economic benefits of and relating to the Clearwire Shares shall remain vested in and belong to the Stockholder, and Sprint shall have no authority to exercise any power or authority to direct the Stockholder in the voting of any of the Clearwire Shares, except in each case as otherwise provided herein.

(d) Expenses. All costs and expenses (including legal fees) incurred by Sprint in connection with the preparation and negotiation of this Agreement shall be paid by Sprint. Sprint shall promptly following the request from time to time by the Stockholder reimburse the Stockholder for its documented (consisting of only invoices and not supporting detail) expenses (including fees and expenses of counsel) incurred since December 17, 2012 in connection with or arising out of the transactions contemplated by the Merger Agreement or other publicly-announced offers to acquire Clearwire, and the negotiation, execution and delivery and performance of this Agreement, and filings with the SEC, provided that Sprint’s reimbursement obligation pursuant to this Section 11(d) and Section 11(d) of each other voting agreement executed as of the date hereof by members of the Stockholder’s 13D (the “13D”) filing group shall not exceed $1,000,000 in the aggregate.

(e) Notices; Designated Representative. All notices or other communications hereunder shall be in writing and shall be deemed given if delivered personally, sent by nationally recognized overnight courier (providing proof of delivery) or mailed by prepaid registered or certified mail (return receipt requested) or sent by facsimile transmission (providing confirmation of such facsimile transmission) addressed as follows:

if to Sprint to:

Sprint Nextel Corporation

6200 Sprint Parkway

Overland Park, Kansas 66251

Attention:        General Counsel

Fax:    (913) 794-1432

with required copies to (which shall not constitute notice):

King & Spalding LLP

1180 Peachtree Street, N.E.

Atlanta, Georgia 30309

Attention:        Michael J. Egan

Fax:    (404) 572-5100

Skadden, Arps, Slate, Meagher & Flom LLP

Four Times Square

New York, NY 10036

 

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Attention:        Thomas H. Kennedy

                Jeremy D. London

Fax: (212) 735-2000

if to the Stockholder, to the address set forth on the Stockholder’s signature page hereto, with a copy to (which shall not constitute notice) to such other person as noted on such signature page;

or as to any addressee to such other address as shall be furnished in writing by such addressee, and any such notice or communication shall be deemed to have been given as of the date received by the addressee as provided above; provided that any notice received by facsimile transmission or otherwise at the addressee’s location on any Business Day after 5:00 p.m. (addressee’s local time) shall be deemed to have been received by such addressee at 9:00 a.m. (addressee’s local time) on the next Business Day.

(f) Interpretation. The words “hereof,” “herein” and “hereunder” and words of similar import when used in this Agreement shall refer to this Agreement as a whole and not to any particular provision of this Agreement, and Section references are to this Agreement unless otherwise specified. Whenever the words “include,” “includes” or “including” are used in this Agreement, they shall be deemed to be followed by the words “without limitation”. Definitions used herein are applicable to the singular as well as the plural forms of such terms and pronouns shall include the corresponding masculine, feminine or neuter forms.

(g) Counterparts. This Agreement may be executed in two or more counterparts, all of which shall be considered one and the same agreement and shall become effective when counterparts have been signed by each of the parties and delivered to the other parties, it being understood that all parties need not sign the same counterpart. This Agreement may be executed and delivered by means of facsimile transmission or e-mailed signature pages, and the parties adopt any signatures so received as original signatures of the parties.

(h) Entire Agreement. This Agreement, together with the Merger Agreement as applicable, constitutes the entire agreement and supersedes all prior agreements and understandings, both written and oral, among the parties with respect to the subject matter hereof.

(i) Governing Law. This Agreement shall be governed by and construed in accordance with the Laws of the State of Delaware, without regard to principles of conflicts of law thereof.

(j) Venue. The parties (i) agree that any suit, action or proceeding arising out of or relating to this Agreement or the transactions contemplated hereby will be brought solely in the state or federal courts of the State of Delaware, (ii) consent to the exclusive jurisdiction of each such court in any suit, action or proceeding relating to arising out of this Agreement or the transactions contemplated hereby and (iii) waive any objection that it may have to the laying of venue in any such suit, action or proceeding in any such court.

 

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(k) Service of Process. Each party irrevocably consents to service of process in the manner provided for the giving of notices pursuant to this Agreement. Nothing in this Agreement will affect the right of a party to serve process in another manner permitted by Law.

(l) Waiver of Jury Trial. EACH PARTY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY ACTION, SUIT OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT, AND WHETHER MADE BY CLAIM, COUNTERCLAIM, THIRD PARTY CLAIM OR OTHERWISE.

(m) Amendment; Waiver. This Agreement may not be amended except by an instrument in writing signed on behalf of (i) the Stockholder and (ii) Sprint; provided that none of Section 9 of this Agreement, this Section 11(m) or Section 11(n) of this Agreement may be amended without an instrument in writing signed on behalf of Starburst. Each party may only waive any right of such party hereunder by an instrument in writing signed by such party and delivered to the other party or parties that are the intended beneficiary or beneficiaries of such waiver. If Sprint shall offer to amend or modify any voting agreement executed as of the date hereof with any member of the Stockholders’ 13D filing group, Sprint shall offer to make the same amendments or modifications to this Agreement.

(n) Specific Performance. Sprint acknowledges and agrees that the Stockholder would be damaged irreparably in the event any of the provisions of this Agreement are not performed in accordance with their specific terms or otherwise are breached. Accordingly, Sprint agrees that the Stockholder shall be entitled, without the necessity of posting any bond or security, any requirement for which is hereby waived by all parties hereto, to seek an injunction or injunctions to prevent breaches of the provisions of this Agreement and to enforce specifically this Agreement and the terms and provisions hereof, this being in addition to any other remedy to which the Stockholder shall be entitled at law or in equity. The Stockholder acknowledges and agrees that Sprint (and Starburst, with respect to the provisions hereof applicable to it) would be damaged irreparably in the event any of the provisions of this Agreement are not performed in accordance with their specific terms or otherwise are breached. Accordingly, the Stockholder agrees that Sprint (and Starburst, with respect to the provisions hereof applicable to it) shall be entitled, without the necessity of posting any bond or security, any requirement for which is hereby waived by all parties hereto, to seek an injunction or injunctions to prevent breaches of the provisions of this Agreement and to enforce specifically this Agreement and the terms and provisions hereof, this being in addition to any other remedy to which Sprint shall be entitled at law or in equity.

(o) Public Announcement; Disclosure. No Stockholder shall issue any press releases or otherwise make any public statements with respect to the transactions contemplated herein without the prior written consent of Sprint, except that (i) a Stockholder may, without the prior consent of Sprint, issue or cause the publication of any press release or other public announcement (including an amendment to the 13D) to the extent that so doing is required by Law and (ii) the Stockholder will, upon the request of Sprint, confirm

 

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publicly that it has voted its Clearwire Shares in favor of the adoption of the Merger Agreement. The Stockholder hereby authorizes Sprint and Starburst to publish and disclose in any announcement or disclosure the execution of this Agreement and the transactions contemplated by this Agreement (including the nature of its commitments, arrangements and understandings under this Agreement). Each party will reasonably consult with the other parties hereto with respect to any proposed public announcement, including any 13D regarding the transactions contemplated by this Agreement.

(p) Severability. Any term or provision of this Agreement that is invalid or unenforceable in any situation in any jurisdiction shall not affect the validity or enforceability of the remaining terms and provisions hereof or the validity or enforceability of the offending term or provision in any other situation or in any other jurisdiction. If the final judgment of a court of competent jurisdiction declares that any term or provision hereof is invalid or unenforceable, the parties agree that the court making the determination of invalidity or unenforceability shall have the power to delete specific words or phrases, or to replace any invalid or unenforceable term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable term or provision, and this Agreement shall be enforceable as so modified after the expiration of the time within which the judgment may be appealed.

(q) Assignment; Third Party Beneficiaries. Neither this Agreement nor any of the rights, interests or obligations of any party hereunder shall be assigned by such party (whether by operation of law or otherwise) without the prior written consent of the other party; provided, however, that Sprint shall be permitted to transfer its rights hereunder to any affiliate of Sprint, so long as Sprint continues to be liable for its obligations under this Agreement. Subject to the preceding sentence, this Agreement will be binding upon, inure to the benefit of and be enforceable by the parties and their respective heirs, successors and permitted assigns. This Agreement is not intended to confer any rights or remedies hereunder upon any person or entity other than (i) the parties hereto and (ii) with respect to Section 9 of this Agreement, the Company Released Persons and the Stockholder Released Persons.

(r) Ownership of Shares. Any obligation, covenant, undertaking or agreement of the Stockholder under this Agreement shall include an obligation, covenant, undertaking and agreement of the Stockholder to cause each of its controlled Affiliates to the extent such controlled Affiliates own or beneficially own Clearwire Shares to fully comply with such obligation, covenant, undertaking and agreement of such controlled Affiliate as if it were a party hereto. In the event that any controlled Affiliate of the Stockholder, rather than the Stockholder, owns Clearwire Shares, then so long as the Stockholder causes such controlled Affiliate to fully comply with all the Stockholder’s obligations, covenants, undertakings and agreements set forth in this Agreement with respect to such Clearwire Shares, and such controlled Affiliate does so fully comply with all of the obligations, covenants, undertakings and agreements set forth in this Agreement, all the representations, warranties, covenants and agreements of the Stockholder set forth in this Agreement with respect to such Clearwire Shares shall be deemed to be accurate or to have been duly complied with by the Stockholder, as the case may be. If any controlled Affiliate of the Stockholder does

 

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not fully comply with the Stockholder’s obligations, covenants, undertakings and agreements set forth in this Agreement, the Stockholder shall be liable for any such non-compliance.

[Remainder of Page Intentionally Left Blank]

 

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IN WITNESS WHEREOF, each of the parties have signed or have caused this Agreement to be signed by their respective officers or other authorized persons thereunto duly authorized as of the date first above written.

 

SPRINT NEXTEL CORPORATION
By:  

/s/ Charles Wunsch

  Name:   Charles Wunsch
  Title:   General Counsel, Senior Vice President, Corporate Secretary
STARBURST II, INC. (solely for the purposes of Section 9, Section 11(m) and Section 11(n))
By:  

/s/ Ronald D. Fisher

  Name:   Ronald D. Fisher
  Title:   President


STOCKHOLDER:
C P MANAGEMENT, L.L.C.
By:  

Chesapeake Partners Management Co., Inc.,

its sole member and owner

By:  

/s/ Mark D. Lerner

Name:   Mark D. Lerner
Title:   Vice President

with required copies to (which shall not constitute notice):

Sidley Austin LLP

787 Seventh Avenue

New York, NY 10019

Fax: 212-839-5599

Attn: Scott M. Freeman


Schedule A

Existing Clearwire Shares

 

Name of Stockholder

 

Number of Existing Clearwire Shares Beneficially Owned

C P Management, L.L.C.   28,907,625 shares of Class A Common Stock
EX-99.70 6 d558039dex9970.htm EX-99.70 EX-99.70

Exhibit 99.70

CONSENT

THIS CONSENT (this “Consent”) is made as of the 20th day of June, 2013, by Starburst II, Inc., a Delaware corporation (“Parent”).

WHEREAS, SoftBank Corp., a Japanese kabushiki kaisha (“SoftBank”), Parent and Sprint Nextel Corporation, a Kansas corporation (the “Company”), entered into an Agreement and Plan of Merger, dated as of October 15, 2012, as amended by the First Amendment to Agreement and Plan of Merger, dated as of November 29, 2012, the Second Amendment to Agreement and Plan of Merger, dated as of April 12, 2013 and the Third Amendment to Agreement and Plan of Merger, dated as of June 10, 2013 (such agreement as so amended, the “SoftBank/Company Merger Agreement”), to which Starburst I, Inc., a Delaware corporation and a wholly owned subsidiary of SoftBank, and Starburst III, Inc., a Kansas corporation and a wholly owned subsidiary of Parent (“SoftBank Merger Sub”), are also parties, pursuant to which SoftBank Merger Sub will merge with and into the Company, with the Company surviving the merger as a wholly owned subsidiary of Parent;

WHEREAS, pursuant to Section 5.2 of the SoftBank/Company Merger Agreement, the Company is prohibited from taking certain actions without the consent of Parent;

WHEREAS, the Company, Collie Acquisition Corp., a Delaware corporation and a wholly owned subsidiary of the Company (“Acquisition Corp.”), and Clearwire Corporation, a Delaware corporation (“Clearwire”), entered into an Agreement and Plan of Merger, dated as of December 17, 2012, as amended by the First Amendment to Agreement and Plan of Merger, dated as of April 18, 2013, and the Second Amendment to Agreement and Plan of Merger, dated as of May 21, 2013 (such agreement as so amended, the “Company/Clearwire Merger Agreement”), pursuant to which Acquisition Corp. will merge with and into Clearwire, with Clearwire surviving the merger as a wholly owned subsidiary of the Company;

WHEREAS, SoftBank, Parent and the Company entered into a Consent and Agreement, dated as of December 17, 2012, pursuant to which SoftBank and Parent consented to the Company’s entry into the Company/Clearwire Merger Agreement;

WHEREAS, pursuant to Section 2(f)(i) of the Consent and Agreement, the Company is prohibited from amending, modifying or entering into any supplement to, or waiving any material rights under (or extending the time for the performance by Clearwire or any other party under), the Company/Clearwire Merger Agreement without the consent of Parent;

WHEREAS, it is proposed that the Company, Acquisition Corp. and Clearwire enter into an amendment, substantially in the form attached hereto as Exhibit A (the “Amendment”), to the Company/Clearwire Merger Agreement to amend the definition of “Merger Consideration” in Paragraph B of the Recitals thereof by deleting “$3.40” in such definition and substituting therefor “$5.00” and to provide for various other matters as set forth in the Amendment;

WHEREAS, in connection with the Amendment, it is proposed that the Company enter into certain Voting and Sale Agreements, each substantially in the form attached hereto as Exhibit B (the “Voting and Sale Agreement”), with the stockholders of Clearwire identified therein (each, a “New Voting Party”) pursuant to which, among other things, (i) each New Voting Party will agree to vote the shares of Class A Common Stock of Clearwire owned by each New Voting Party in favor of the adoption of the Company/Clearwire Merger Agreement at the Company Stockholders’ Meeting (as defined in the Company/Clearwire Merger Agreement) or any adjournment thereof at which the Company/Clearwire Merger Agreement is to be voted upon, and (ii) upon termination of the Company/Clearwire Merger Agreement pursuant to Section 6.1 thereof, each New Voting Party has agreed to sell to the Company, and the Company has agreed to purchase, the shares of Class A Common Stock of Clearwire owned by each New Voting Party at a price per share of Class A Common Stock equal to the


Merger Consideration (as defined in the Company/Clearwire Merger Agreement, as amended by the Amendment), in each case, as set forth in the Voting and Sale Agreement; and

WHEREAS, pursuant to Section 5.2 of the SoftBank/Company Merger Agreement and Section 2(f)(i) of the Consent and Agreement, the Company has requested that Parent, and Parent has agreed to, provide its written consent to the execution and delivery by the Company and, as applicable, Acquisition Corp. of the Amendment and the Voting and Sale Agreements.

NOW, THEREFORE, Parent hereby consents for purposes of Section 5.2 of the SoftBank/Company Merger Agreement and Section 2(f)(i) of the Consent and Agreement to the execution and delivery by the Company and, as applicable, Acquisition Corp. of the Amendment, substantially in the form attached hereto as Exhibit A, and the Voting and Sale Agreements, substantially in the form attached hereto as Exhibit B.

[Signature Page Follows]


IN WITNESS WHEREOF, Parent has executed this Consent as of the date first set forth above.

 

STARBURST II, INC.
By:  

/s/ Ronald D. Fisher

  Name:   Ronald D. Fisher
  Title:   President

[Signature Page to Starburst II, Inc. Consent]


EXHIBIT A

[Attached]


EXHIBIT B

[Attached]