TRANSACTION AGREEMENT AND PLAN
OF MERGER
AMENDMENT NO. 1
(this “ Amendment ”) dated as of
November 21, 2008 to the TRANSACTION AGREEMENT AND PLAN OF
MERGER dated as of May 7, 2008 (the “ Transaction
Agreement ”), by and among Clearwire Corporation, a
Delaware corporation (“ Clearwire ”), Sprint
Nextel Corporation, a Kansas corporation (“ Sprint
”), Comcast Corporation, a Pennsylvania corporation (“
Comcast ”), Time Warner Cable Inc., a Delaware
corporation (“ TWC ”), Bright House Networks,
LLC, a Delaware limited liability company (“ BHN
”), Google Inc., a Delaware corporation (“
Google ”), and Intel Corporation, a Delaware
corporation (“ Intel ”), and together with
Comcast, TWC, BHN, Google, Sprint and Clearwire, the “
Parties ”). Capitalized terms that are used but not
otherwise defined herein have the meanings ascribed to such terms
in the Transaction Agreement and all Section references in this
Amendment are to Sections of the Transaction Agreement unless
otherwise specified.
ACCORDINGLY, for
good and valuable consideration (the receipt and sufficiency of
which is hereby acknowledged), the Parties agree as
follows:
Section 1.
Amendment to Exhibit I . Exhibit I to the
Transaction Agreement is hereby amended and restated in its
entirety to read as set forth in Exhibit I attached
hereto.
Section 2.
Amendments to Section 2.5 . The Parties desire to
clarify Section 2.5 of the Transaction Agreement to eliminate
any potential ambiguities. Accordingly, Section 2.5 of the
Transaction Agreement is hereby amended as follows:
(i) Subsection
(a) is hereby amended and restated in its entirety to read as
follows:
“(a) Each
share of Clearwire Class A Common Stock will be canceled and
retired and cease to exist and will be converted into the right to
receive one share of Class A Common Stock (the “
Merger Consideration ”); except that to the extent
that any shares of Class A Common Stock are issued in exchange
for unvested shares of restricted Clearwire Class A Common
Stock that were granted to Clearwire employees under Clearwire
Stock Option Plans or otherwise, those shares of Class A
Common Stock will continue to have substantially the same terms and
conditions as applied to the corresponding restricted shares
immediately before the Effective Time;”
(ii) The
following shall be inserted as new subsection (b) and the
remaining paragraphs in Section 2.5 shall be renumbered
accordingly:
“(b) Each
Clearwire restricted stock unit will be canceled and retired and
cease to exist and will be converted into the right to receive one
NewCo restricted stock unit and those NewCo restricted stock units
will continue to have substantially the same terms and
condi
