Exhibit 2.2
EXECUTION VERSION
STOCKHOLDERS
AGREEMENT
THIS STOCKHOLDERS AGREEMENT (this
“ Agreement ”), dated as of October 18,
2009, is entered into among SPRINT NEXTEL CORPORATION, a
corporation organized under the laws of the State of Kansas
(“ Sprint ”), and Apollo Investment Fund IV,
L.P., Apollo Overseas Partners IV, L.P., Timothy M. Yager, Stebbins
B. Chandor, Jr., Timothy G. Biltz and Mikal J. Thomsen (each
is referred to as a “ Stockholder ” and
collectively as the “ Stockholders ”), solely in
their respective individual capacities as Stockholders of
iPCS, Inc., a Delaware corporation (the “ Company
”).
W I T N E S S E T
H:
WHEREAS , Sprint and the Company are parties to an
Agreement and Plan of Merger (the “ Merger Agreement
”), dated as of the date hereof, whereby a wholly owned
subsidiary of Sprint (“ Buyer ”) has agreed to
make a cash tender offer described therein and thereafter merge
with and into the Company (the “ Merger ”), with
the result that the Company becomes a wholly owned subsidiary of
Sprint (capitalized terms used herein but not otherwise defined
shall have the meanings set forth in the Merger
Agreement);
WHEREAS , each Stockholder is, except as otherwise noted
on Schedule A hereto (the shares of Common Stock
referred to on Schedule A are referred to herein as the
“ Schedule A Shares ”), the sole beneficial
owner (and holds sole beneficial voting power) of the shares of
common stock of the Company, par value $0.01 per share (“
Common Stock ”), set forth opposite such
Stockholder’s name on Schedule B hereto (all of the
shares owned by the Stockholders (including the Schedule A Shares)
as of the date hereof being hereinafter referred to as the “
Existing Shares ” and, together with any shares of
Common Stock or other shares of capital stock of the Company
acquired by the Stockholders after the date hereof, as the “
Shares ”); and
WHEREAS , as a condition and inducement to
Sprint’s willingness to enter into the Merger Agreement, each
Stockholder has agreed to tender and vote all of its 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 and agreements
contained herein and intending to be legally bound, the parties
agree as follows:
1. Tender Agreement
.
(a) Each Stockholder shall
validly tender for sale to Buyer, pursuant to the terms of the
Offer, no later than the tenth business day after commencement of
the Offer or, if later, the fifth business day following receipt of
the applicable Offer Documents, the Shares (other than the Schedule
A Shares) then owned of record or beneficially by such Stockholder,
provided that at such time as the restrictions lapse with respect
to any Schedule A Shares owned by such Stockholder, if there is a
subsequent offering period such Stockholder will promptly tender
such Schedule A Shares in such subsequent offering period.
Each
1
Stockholder hereby acknowledges and
agrees that Sprint’s and Buyer’s obligation to accept
for payment and pay for the Shares in the Offer, including all
Shares beneficially owned by such Stockholder, is subject to the
terms and conditions of the Offer and the Merger
Agreement.
(b) Each Stockholder shall not,
subject to applicable Law, withdraw the tender of its Shares
effected in accordance with the foregoing paragraph (a);
provided , however , each Stockholder may decline to
tender, or may withdraw, any and all of such Shares, if
(i) without the prior written consent of such Stockholder,
Sprint and/or Buyer shall amend the Offer to (A) reduce the
price per share to be paid to less than $24.00 per share, subject
to any required withholding taxes, (B) reduce the number of
Shares subject to the Offer, (C) change the form of
consideration payable in the Offer, or (D) amend or modify any
term or condition of the Offer in a manner adverse to the
Stockholders; or (ii) any Governmental Entity shall have
issued a final, nonappealable order, decree or ruling or taken any
other action permanently restraining, enjoining, or otherwise
prohibiting, such Stockholder from tendering its Shares.
2. Voting of Shares . Until
the termination of this Agreement in accordance with the terms of
Section 10(a) hereof, each Stockholder hereby agrees
that, at any annual, special or other meeting of the stockholders
of the Company, and at any adjournment or adjournments thereof, and
in connection with any action of the stockholders of the Company
taken by written consent, such Stockholder will (if and to the
extent such Stockholder has not sold its shares in the Offer in
accordance with this Agreement):
(a) appear in person or by
proxy at each such meeting or otherwise cause the Shares
beneficially owned by such Stockholder (other than the Schedule A
Shares) to be counted as present at such meeting for purposes of
calculating a quorum; and
(b) (i) unless Sprint
votes the Shares directly pursuant to the proxy granted in
Section 3 hereof, vote (or cause to be voted) the Shares
(other than the Schedule A Shares), in person or by proxy, in favor
of adopting the Merger Agreement, approving, and deliver any
written consent with respect to the Shares in favor of, the Merger
and any other action of the Stockholders of the Company reasonably
requested by Sprint in furtherance thereof; and (ii) unless
Sprint votes the Shares directly pursuant to the proxy granted in
Section 3 hereof, vote (or cause to be voted) the Shares
(other than the Schedule A Shares), in person or by proxy, against,
and not deliver any written consent with respect to the Shares in
favor of, any other Acquisition Proposal submitted for approval to
the Stockholders of the Company, unless Sprint consents in writing
to such Stockholder voting in favor of, or delivering a consent
with respect to, such other Acquisition Proposal.
3. Proxy .
(a) Each Stockholder by this
Agreement does hereby constitute and appoint Sprint, or any nominee
of Sprint, with full power of substitution, during and for the
Proxy Term (as hereinafter defined), as such Stockholder’s
true and lawful attorney and irrevocable proxy, for and in such
Stockholder’s name, place and stead, to vote the Shares of
such Stockholder
2
(other than the Schedule A Shares)
as such Stockholder’s proxy, at every meeting of the
Company’s Stockholders or any adjournment thereof, or, as
applicable, to instruct and direct any holder of record of the
Shares to vote the Shares or execute its proxy with respect to the
Shares at every meeting of the Company’s Stockholders or any
adjournment thereof, in favor of approving the Merger Agreement,
the Merger and any other action of the Company’s stockholders
reasonably requested by Sprint in furtherance thereof; and against
any other Acquisition Proposal submitted for approval to the
Company’s Stockholders unless Sprint and such Stockholder
determine to vote or consent in favor of such other Acquisition
Proposal. Each Stockholder intends this proxy to be irrevocable and
coupled with an interest during the Proxy Term and hereby revokes
any proxy previously granted by such Stockholder with respect to
the Shares (except as may be otherwise noted on Schedule A
). Each Stockholder acknowledges that, pursuant to the authority
hereby granted under the irrevocable proxy, Sprint may vote the
Shares in furtherance of its own interests, and Sprint is not
acting as a fiduciary for any Stockholder.
(b) For purposes of this
Agreement, “ Proxy Term ” means the period from
the execution of this Agreement until the termination of this
Agreement in accordance with the terms of
Section 10(a) hereof.
(c) Each Stockholder agrees
that the irrevocable proxy set forth in this Section 3 shall
not be terminated by any act of the Stockholder or by operation of
law, other than upon expiration of the Proxy Term.
4. Stop Transfer Instruction;
Legend .
(a) Promptly following the date
hereof, the Stockholders shall deliver written instructions to the
Company and to the Company’s transfer agent stating that the
Shares (other than the Schedule A Shares) may not be Transferred
(as defined below) in any manner during the term of this Agreement
without the prior written consent of Sprint or except as provided
in this Agreement.
(b) Promptly following the date
hereof, each Stockholder shall cause a legend to be placed on the
certificates (to the extent the Shares are certificated)
representing the Existing Shares (other than the Schedule A Shares)
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 Stockholders Agreement dated October 18, 2009, between
the registered holder hereof and SPRINT NEXTEL
CORPORATION.”
Each Stockholder shall make the
applicable certificates (if any) available and otherwise cooperate
in connection with placing such legend on such
certificates.
3
(c) The parties hereto agree
that the legend set forth above shall be removed only upon delivery
to the Company’s transfer agent of written notice signed by
Sprint (which notice shall not be unreasonably withheld or delayed)
after expiration of the Proxy Term that the restrictions set forth
in the legend above are of no further force and effect.
5. Acknowledgment of Reliance
. Each Stockholder understands and acknowledges that Sprint is
pursuing the Merger (and incurring costs and expenses and foregoing
other opportunities) in reliance upon such Stockholder’s
execution and delivery of this Agreement.
6. No Inconsistent Agreements
. Each Stockholder hereby covenants and agrees that, except as
otherwise noted in Schedule A hereto, such Stockholder
(a) has not entered, and such Stockholder shall not enter at
any time during the Proxy Term, into any voting agreement, voting
trust or option agreement with respect to the Shares beneficially
owned by such Stockholder and (b) has not granted, and such
Stockholder shall not grant at any time during the Proxy Term, a
proxy, a consent or power of attorney with respect to the Shares
beneficially owned by such Stockholder, other than the proxy
granted pursuant to Section 2 hereof.
7. Representations and Warranties
of the Stockholders . Each Stockholder hereby represents and
warrants, severally as to such Stockholder and not jointly, to
Sprint as follows:
(a) Authorization; Validity
of Agreement; Necessary Action . If such Stockholder is not an
individual, such 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 power and
authority to execute and deliver this Agreement, and to perform
such Stockholder’s obligations hereunder and to consummate
the transactions contemplated hereby. If such Stockholder is an
individual, such Stockholder has full power and authority to
execute and deliver this Agreement, to perform such
Stockholder’s obligations hereunder and to consummate the
transactions contemplated hereby. No other actions or proceedings
on the part of such 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 such Stockholder and, assuming this
Agreement constitutes a valid and binding obligation of Sprint and
the other Stockholders, constitutes a valid and binding obligation
of such Stockholder, enforceable against such Stockholder in
accordance with its terms.
(b) Ownership . As of
the date hereof, (i) such Stockholder beneficially owns the
Existing Shares listed opposite such Stockholder’s name on
Schedule B hereto, and (ii) the Existing Shares
(as set forth opposite such Stockholder’s name on Schedule
B ) constitute all of the shares of Common Stock owned by such
Stockholder. Except as otherwise noted on
Schedule A hereto, there are no existing agreements or
arrangements between such Stockholder or any of its affiliates
(other than the Company), on one hand, or the Company or any of the
Subsidiaries, on the other hand, relating to the Shares
beneficially owned by such Stockholder or any of its affiliates
(other than the Company). Such Stockholder, except as
otherwise noted on Schedule A hereto, has and will have
at all times through the term of this Agreement 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
4
to all of the matters set forth in
this Agreement, in each case with respect to all of the Existing
Shares at any closing date of the Offer or the Merger, with no
limitations, qualifications or restrictions on such rights, subject
to applicable federal securities laws and the terms of this
Agreement. Except as otherwise noted on Schedule A
hereto, such Stockholder has and, until consummation of the Offer
or the Merger, will have, good and marketable title to the Existing
Shares of such 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
”).
(c) No Violation . The
execution and delivery of this Agreement by such Stockholder does
not, and the performance by such Stockholder of its obligations
under this Agreement will not, (i) conflict with or violate
any law, ordinance or regulation of any Governmental Entity
applicable to such Stockholder or by which any of its assets or
properties is bound or (ii) 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 requi
