EXECUTION VERSION
PRIVATE AND CONFIDENTIAL
CONFIDENTIAL SETTLEMENT
MATERIALS — SUBJECT TO
DELAWARE UNIFORM RULE OF EVIDENCE 408 — NOT TO BE USED
OR
DISCLOSED FOR ANY PURPOSE OTHER THAN
SETTLEMENT
SETTLEMENT AGREEMENT AND
MUTUAL RELEASE
This Settlement
Agreement and Mutual Release (this “ Agreement
”) is entered into as of October 18, 2009, by and among
Sprint Nextel Corporation (f/k/a Sprint Corporation), a Kansas
corporation, WirelessCo L.P., a Delaware limited partnership,
Sprint Spectrum L.P., a Delaware limited partnership, SprintCom,
Inc., a Kansas corporation, Sprint Communications Company, L.P., a
Delaware limited partnership, Nextel Communications, Inc., a
Delaware corporation, PhillieCo L.P., a Delaware limited
partnership, and APC PCS LLC, a Delaware limited liability company
(collectively, the “ Sprint Parties ”), Horizon
Personal Communications, Inc., an Ohio corporation, Bright Personal
Communications Services, LLC, an Ohio limited liability company,
iPCS Wireless, Inc., a Delaware corporation, and iPCS, Inc., a
Delaware corporation (collectively, the “ iPCS Parties
” and together with the Sprint Parties, the “
Parties ”).
Whereas ,
on July 15, 2005, iPCS Wireless, Inc. initiated a lawsuit
against certain of the Sprint Parties asserting, among other
things, breach of contract and seeking numerous remedies, which is
currently pending in the Circuit Court of Cook County, Chancery
Division (the “ Circuit Court ”) and is styled
iPCS Wireless, Inc. v. Sprint Corporation, WirelessCo L.P.,
Sprint Spectrum L.P., SprintCom, Inc. and Sprint Communications
Company, L.P. , Case No. 05 CH 11792 (the “
Circuit Court Sprint/Nextel Merger Litigation ”), and
on September 22, 2008, certain of the Sprint Parties filed a
petition for relief from judgment in the Circuit Court
Sprint/Nextel Merger Litigation under Section 2-1401 of the
Illinois Code of Civil Procedure, which is currently pending in the
Illinois Appellate Court, Case No. 09-0424 (the “
Section 2-1401 Appeal ” and together with the
Circuit Court Sprint/Nextel Merger Litigation, the “
Illinois Sprint/Nextel Merger Litigation ”); and on
July 22, 2005, Horizon Personal Communications, Inc. and
Bright Personal Communications Services, LLC initiated a lawsuit
against the Sprint Parties asserting, among other things, breach of
contract and seeking numerous remedies, which is currently pending
in the Delaware Court of Chancery (the “ Delaware Chancery
Court ”) and is styled Horizon Personal
Communications, Inc. and Bright Personal Communications Services,
LLC v. Sprint Corporation, WirelessCo L.P., Sprint Spectrum L.P.,
SprintCom, Inc., Sprint Communications Company, L.P., Nextel
Communications, Inc., PhillieCo L.P. and APC PCS LLC, C.A.
No. 1518-N (together with the Illinois Sprint/Nextel Merger
Litigation, the “ Sprint/Nextel Merger Litigation
”);
Whereas ,
on May 7, 2008, certain of the Sprint Parties initiated a
lawsuit against the iPCS Parties seeking a declaratory judgment,
which was pending in the Delaware Chancery Court, is currently
stayed, and is styled Sprint Nextel Corporation, WirelessCo
L.P., Sprint Spectrum L.P., SprintCom, Inc. and Sprint
Communications Company, L.P. v. iPCS, Inc., iPCS Wireless, Inc.,
Horizon Personal Communications, Inc. and Bright Personal
Communications
Services,
LLC , C.A.
No. 3746-VCP (the “ Delaware Chancery Court
Sprint/Clearwire Transaction Litigation ”); and on
May 12, 2008, certain of the iPCS Parties initiated a lawsuit
against certain of the Sprint Parties seeking declaratory and
injunctive relief, which is currently pending in the Circuit Court
and is styled iPCS Wireless, Inc., Horizon Personal
Communications, Inc. and Bright Personal Communications Services,
LLC v. Sprint Nextel Corporation, WirelessCo L.P., Sprint Spectrum
L.P., SprintCom, Inc. and Sprint Communications Company, L.P. ,
Case No. 08 CH 17214 (the “ Circuit Court
Sprint/Clearwire Transaction Litigation ” and together
with the Delaware Chancery Court Sprint/Clearwire Transaction
Litigation, the “ Sprint/Clearwire Transaction
Litigation ”);
Whereas ,
on September 10, 2009, certain of the iPCS Parties initiated a
lawsuit against certain of the Sprint Parties seeking an
injunction, which is currently pending in the Circuit Court and is
styled iPCS Wireless, Inc., Horizon Personal Communications,
Inc. and Bright Personal Communications Services, LLC v. Sprint
Nextel Corporation, WirelessCo L.P., Sprint Spectrum L.P.,
SprintCom, Inc. and Sprint Communications Company, L.P. , Case
No. 09 CH 32574 (the “ Sprint/Virgin Transaction
Litigation ”); and
Whereas ,
on the terms and subject to the conditions contained herein, the
Parties wish to compromise and settle all disputes between them,
including but not limited to the claims asserted in the
Sprint/Nextel Merger Litigation, the Sprint/Clearwire Transaction
Litigation and the Sprint/Virgin Transaction Litigation
(collectively, the “ Litigation ”).
Now,
therefore , in consideration of the mutual covenants and
promises set forth herein, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, the Parties, intending to be legally bound, hereby
agree as follows:
1. Agreement
and Plan of Merger. The
Parties are executing and delivering this Agreement
contemporaneously with the execution and delivery by iPCS, Inc. and
Sprint Nextel Corporation of an Agreement and Plan of Merger (the
“ Merger Agreement ”), in the form attached as
Exhibit A to this Agreement.
2.
Effectiveness of Provisions. This Section 2 and Sections 1, 4, 5,
6, 7, 8, 9, 10 and 11 of this Agreement shall be effective from and
after the date of this Agreement (the “ Signing Date
”); provided that Sections 6(a), 6(b), 7 and 9 of this
Agreement shall terminate (i) if the Merger Agreement is
terminated for any reason or (ii) upon written notice by the
Sprint Parties or the iPCS Parties to the other if the Offer (as
defined in the Merger Agreement) has not closed by the Outside Date
(as defined in the Merger Agreement) and the Party providing the
notice is unable to terminate the Merger Agreement because a
judgment, order, injunction, decree, stipulation or award precludes
the termination of the Merger Agreement (each, a “
Termination Event ”). Section 3 of this Agreement
shall only become binding and effective at the time of the closing
of the Merger (as defined in the Merger Agreement) (the “
Effectiveness Time ”).
(a) Sprint Release of the iPCS Parties. As of
the Effectiveness Time, except for any claims arising under or
relating to a breach of this Agreement, the Merger Agreement and/or
the agreements and transactions contemplated hereby and thereby,
each of the Sprint Parties and their respective officers,
directors, shareholders, partners, members, affiliates,
subsidiaries, employees, agents, attorneys and representatives
release and forever discharge the iPCS Parties and their respective
officers, directors, shareholders, partners, members, affiliates,
subsidiaries, employees, agents, attorneys and representatives
(collectively, the “ iPCS Released Parties ”)
from all liabilities, claims, attorney’s fees, damages,
injuries, causes of action, and losses of any kind (including,
without limitation, any claims for equitable or injunctive relief)
that any of the Sprint Parties ever had, now has, has asserted,
could have asserted or may assert in the future against any of the
iPCS Released Parties that exist or may exist as of the
Effectiveness Time, including but not limited to all claims that
have been or could have been asserted in the Litigation
(collectively, “ Sprint’s Claims
”).
(b) iPCS Release of the Sprint Parties. As of
the Effectiveness Time, except for any claims arising under or
relating to a breach of this Agreement, the Merger Agreement and/or
the agreements and transactions contemplated hereby and thereby,
each of the iPCS Parties and their respective officers, directors,
shareholders, partners, members, affiliates, subsidiaries,
employees, agents, attorneys and representatives release and
forever discharge the Sprint Parties and their respective officers,
directors, shareholders, partners, members, affiliates,
subsidiaries, employees, agents, attorneys and representatives
(collectively, the “ Sprint Released Parties ”)
from all liabilities, claims, attorney’s fees, damages,
injuries, causes of action, and losses of any kind (including,
without limitation, any claims for equitable or injunctive relief)
that any of the iPCS Parties ever had, now has, has asserted, could
have asserted or may assert in the future against any of the Sprint
Released Parties that exist or may exist as of the Effectiveness
Time, including but not limited to all claims that have been or
could have been asserted in the Litigation (collectively, “
iPCS’s Claims ”).
(c) iPCS Release of iPCS Directors and Officers
. As of the Effectiveness Time, each of the iPCS Parties and
each of their respective subsidiaries releases and forever
discharges each of the iPCS Parties’ respective
(i) officers, directors and employees (in any and all
capacities relating to the iPCS Parties, including, without
limitation, as shareholders and affiliates of the iPCS Parties)
(collectively, the “ iPCS Released Insiders ”)
from all liabilities, claims, attorney’s fees, damages,
injuries, causes of action, and losses of any kind (including,
without limitation, any claims for equitable or injunctive relief)
that any of the iPCS Parties ever had, now has, has asserted, could
have asserted or may assert in the future against any of the iPCS
Released Insiders that exist or may exist as of the Effectiveness
Time, including but not limited to all claims that have been or
could have been asserted in or relating to the Litigation
(collectively, “ iPCS’s Insider Claims ”),
other than claims arising from acts or omissions that constitute
(1) fraud, (2) breach of fiduciary duty (other than with
respect to the Litigation and any actions or omissions taken or not
taken in connection with the Litigation), (3) a violation of
law, (4) an attempt to recover amounts paid to any iPCS
Released Insider, the payment of which constitutes a breach by
iPCS, Inc. of the Merger Agreement or (5) any willful and
material violation of any written employment or other written
policy of iPCS, Inc. and (ii) attorneys and
representatives
(collectively, the “ iPCS Released Outsiders ”)
from all liabilities, claims, attorney’s fees, damages,
injuries, causes of action, and losses of any kind (including,
without limitation, any claims for equitable or injunctive relief)
that any of the iPCS Parties ever had, now has, has asserted, could
have asserted or may assert in the future against any of the iPCS
Released Outsiders that exist or may exist as of the Effectiveness
Time, in each case solely with respect to or involving the
Litigation and any actions or omissions taken or not taken in
connection with the Litigation (together with Sprint’s
Claims, iPCS’s Claims and iPCS’s Insider Claims, the
“ Released Claims ”). The Parties hereby
acknowledge and agree that none of the exceptions to the releases
set forth in this Section 3(c) shall create or be deemed to create
a claim or cause of action against any iPCS Released Insider or any
iPCS Released Outsider that would not otherwise exist under
applicable law.
(d) Complete Release. Effective as of the
Effectiveness Time, this Agreement constitutes the complete
compromise, settlement, accord and satisfaction of all of the
Released Claims.
(e) Dismissal of Litigation. As soon as
practicable after the Effectiveness Time, the Parties will jointly
execute, deliver and file with the Delaware Chancery Court, the
Circuit Court and the Illinois Appellate Court such documents as
may be necessary or desirable to effect the dismissal with
prejudice of the Litigation.
(f) Dissolution of Injunction. Upon the
Effectiveness Time, the Parties will submit jointly to the Circuit
Court an Agreed Motion to Vacate the Court’s Order entered on
January 30, 2009 (the “ Injunction Order ”)
and will request that the Circuit Court issue an order vacating the
Injunction Order. Additionally, upon the Effectiveness Time, the
Sprint Parties will dismiss with prejudice the Section 2-1401
Appeal.
4.
Expenses. The Parties
will pay their own expenses and attorney’s fees incurred in
connection with the Litigation and with the negotiation and
execution of this Agreement.
(a) Illinois Sprint/Nextel Merger Litigation .
On the Signing Date, or on the next business day thereafter if the
Signing Date is not a business day, the Parties shall file with
(i) the Circuit Court an Agreed Motion to Stay, in the form
attached as Exhibit B to this Agreement (the “
Sprint/Nextel Motion ”), and an Agreed Order, in the
form attached as Exhibit C to this Agreement (the
“ Sprint/Nextel Stay ”), with respect to the
Illinois Sprint/Nextel Merger Litigation and (ii) the Illinois
Appellate Court an Agreed Motion to Stay, in the form attached as
Exhibit D to this Agreement (the “ 2-1401
Motion ”), and an Agreed Order, in the form attached as
Exhibit D to this Agreement (the “ 2-1401
Stay ”), with respect to the 2-1401 Appeal. The Parties
shall take all steps necessary as soon as practicable (i) to
cause the Circuit Court to hear the Sprint/Nextel Motion and to
issue the Sprint/Nextel Stay, as the same may be modified in the
Circuit Court’s discretion, and (ii) to present the
2-1401 Motion to the Illinois Appellate Court and to cause the
Illinois Appellate Court to issue the 2-1401 Stay, as the same may
be modified in the Illinois Appellate Court’s discretion. The
Parties hereby acknowledge and agree that the Sprint/Nextel Stay
shall not be deemed to impact any rights, duties or obligations
under that
certain
Forbearance Agreement, dated as of July 28, 2005, by and among
certain affiliates of Sprint Nextel Corporation and the iPCS
Parties (the “ Nextel Forbearance Agreement ”)
and that the parties thereto shall continue to be bound by and
comply fully with the terms and conditions thereof. If the
Sprint/Nextel Stay is vacated for any reason, the Sprint Parties
shall have until 120 days after the date on which the
Sprint/Nextel Stay is vacated to comply with the requirements of
the Final Order and Judgment issued by the Circuit Court on
January 30, 2009 in the Circuit Court Sprint/Nextel Merger
Litigation.
(b) Sprint/Clearwire Transaction Litigation . On
the Signing Date, or on the next business day thereafter if the
Signing Date is not a business day, the Parties shall file with the
Circuit Court an Agreed Motion to Stay, in the form attached as
Exhibit E to this Agreement (the “
Sprint/Clearwire Motion ”), and an Agreed Order, in
the form attached as Exhibit F to this Agreement (the
“ Sprint/Clearwire Stay ”), with respect to the
Circuit Court Sprint/Clearwire Transaction Litigation. The Parties
shall take all steps necessary to cause the Circuit Court to hear
the Sprint/Clearwire Motion and to issue the Sprint/Clearwire Stay,
as the same may be modified in the Circuit Court’s
discretion, in each case as soon as practicable. The Parties hereby
acknowledge and agree that the Sprint/Clearwire Stay shall not stay
any rights, duties or obligations under the Agreed Order and
Stipulation issued by the Circuit Court on November 17, 2008
in the Circuit Court Sprint/Clearwire Transaction Litigation (the
“ Sprint/Clearwire Order ”) and that the iPCS
Parties and the Sprint Parties that are bound thereby shall
continue to be bound by and comply fully with the terms and
conditions of the Sprint/Clearwire Order. In addition,
notwithstanding anything to the contrary contained in this
Agreement, if Clearwire Corporation takes any action that does not
comply with the Sprint/Clearwire Order or if Clearwire Corporation
provides notice to the iPCS Parties of its intention to launch a
network or to promote or sell products or services in any part of
the applicable iPCS Parties’ service areas, as set forth in
the applicable Sprint PCS Management Agreements, as amended or
supplemented (the “ Service Areas ”), pursuant
to Paragraph 3 of the Sprint/Clearwire Order, the
Sprint/Clearwire Stay shall be automatically vacated and the iPCS
Parties shall be entitled to pursue all available
remedies.
(c) Sprint/Virgin Transaction Litigation . On
the Signing Date, or on the next business day thereafter if the
Signing Date is not a business day, the Parties shall file with the
Circuit Court an Agreed Motion to Stay, in the form attached as
Exhibit G to this Agreement (the “
Sprint/Virgin Motion ”), and an Agreed Order, in the
form attached as Exhibit H to this Agreement (the
“ Sprint/Virgin Stay ” and together with the
Sprint/Nextel Stay, the 2-1401 Stay and the Sprint/Clearwire Stay,
the “ Stays of Litigation ”), with respect to
the Sprint/Virgin Transaction Litigation. The Parties shall take
all steps necessary to cause the Circuit Court to hear the
Sprint/Virgin Motion and to issue the Sprint/Virgin Stay, as the
same may be modified in the Circuit Court’s discretion, in
each case as soon as practicable. The Sprint Parties hereby
unconditionally and irrevocably covenant and agree that neither the
Sprint Parties nor any affiliate of the Sprint Parties shall
(i) from and after the Signing Date and through the earlier of
(1) the occurrence of a Termination Event and (2) the
Effectiveness Time, reduce, directly or indirectly, or shall permit
to be reduced, the reseller rates under the Virgin Mobile resale
arrangement applicable to the iPCS Parties and their affiliates
under the applicable Sprint PCS Management Agreements, as amended
or supplemented as of the Signing Date (the “ Reseller
Rates ”), or (ii) claim or assert in any litigation
proceeding or other action between the Sprint
Parties and the
iPCS Parties or any of their respective affiliates that the iPCS
Parties or any of their affiliates has waived the right to
challenge the permissibility of any prior direct or indirect
reductions of the Reseller Rates.
(d) Continuance of Stays . Except as set forth
in Section 5(b) or as provided in the Stays of Litigation, from and
after the Signing Date and through the Effectiveness Time, none of
the Parties shall (i) seek to modify or vacate the Stays of
Litigation or the Delaware Sprint/Clearwire Stay (as defined below)
or (ii) take any other action inconsistent with the
continuation of the Stays of Litigation or the Delaware
Sprint/Clearwire Stay. Notwithstanding the foregoing sentence, upon
the occurrence of a Termination Event, the Stays of Litigation
shall be automatically vacated and the Parties shall be entitled to
seek to modify or vacate the Delaware Sprint/Clearwire Stay. For
purposes of this Agreement, “ Delaware Sprint/Clearwire
Stay ” shall mean the Order issued by the Delaware
Chancery Court on October 8, 2008 with respect to the Delaware
Chancery Court Sprint/Clearwire Transaction Litigation.
(e) Compliance With Stays. The Parties hereby
acknowledge and agree that the obligations imposed by each of the
Stays of Litigation are valid and enforceable obligations of this
Agreement, and that a breach of any such obligation shall
constitute a breach of this Agreement.
6. Covenant
Not To Sue or To Assist Third Parties.
(a) Covenant by iPCS Parties . From and after
the Signing Date, so long as this Section 6(a) remains in effect in
accordance with the terms of this Agreement, except (i) for
any claims arising under or relating to a breach of this Agreement,
the Merger Agreement and/or the agreements and transactions
contemplated hereby and thereby, and (ii) as set forth in
Section 5(b), no iPCS Party will (1) commence or in any
manner seek relief against any of the Sprint Parties through any
suit or proceeding, (2) become a party (unless such claims are
asserted against one or more of the iPCS Parties) to any suit or
proceeding arising from or in connection with an attempt by or on
behalf of any third party to enforce or collect an amount based on
any Released Claim (including, without limitation, any claim that
will become a Released Claim as of the Effectiveness Time), or (3)
assist in any manner any other third party in connection with any
threatened or existing litigation such party may have against any
Sprint Party; provided, however, that an iPCS Party may comply with
a subpoena if one is issued by a court of competent jurisdiction.
In addition, no iPCS Party will assist the efforts of any third
party attempting to enforce or collect an amount based on a
Released Claim (including, without limitation, any claim that will
become a Released Claim as of the Effectiveness Time), unless
required to do so by a court of competent jurisdiction.
(b) Covenant by Sprint Parties . From and after
the Signing Date, so long as this Section 6(b) remains in effect in
accordance with the terms of this Agreement, except for any claims
arising under or relating to a breach of this Agreement, the Merger
Agreement and/or the agreements and transactions contemplated
hereby and thereby, no Sprint Party will (i) commence or in
any manner seek relief against any of the iPCS Parties through any
suit or proceeding, (ii) become a party (unless such claims
are asserted against one or more of the Sprint Parties) to any suit
or proceeding arising from or in connection with an attempt by or
on behalf of any third
party to
enforce or collect an amount based on any Released Claim
(including, without limitation, any claim that will become a
Released Claim as of the Effectiveness Time), or (iii) assist in
any manner any other third party in connection with any threatened
or existing litigation such party may have against any iPCS Party;
provided, however, that a Sprint Party may comply with a subpoena
if one is issued by a court of competent jurisdiction. In addition,
no Sprint Party will assist the efforts of any third party
attempting to enforce or collect an amount based on a Released
Claim (including, without limitation, any claim that will become a
Released Claim as of the Effectiveness Time), unless required to do
so by a court of competent jurisdiction.
(c) Preservation of Claims . Notwithstanding
anything to the contrary contained in this Agreement, (i) from
and after the Signing Date and through the earlier of (1) the
occurrence of a Termination Event and (2) the Effectiveness
Time, the Parties hereby acknowledge and agree that any and all
rights of the Parties and their respective affiliates with respect
to any and all unasserted claims or causes of action that the
Parties and their respective affiliates ever had, now have, could
have asserted or may have or may assert in the future against any
of the other Parties and their respective affiliates (“
Unasserted Claims ”) shall be preserved, maintained
and protected to the fullest extent permitted by law,
(ii) from and after the Signing Date and through the earlier
of (1) the occurrence of a Termination Event and (2) the
Effectiveness Time, the Parties hereby acknowledge and agree that
all applicable statutes of limitation with respect to Unasserted
Claims shall be, and shall be deemed to be, tolled for all
purposes, (iii) the Parties hereby acknowledge and agree that
the Parties and their respective affiliates shall not be deemed to
have waived the right to pur
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