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
”).
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:
(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.
(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 require redemption
or repurchase of or otherwise require the purchase or sale of, or
result in the creation of any Lien on, the Existing Shares of such
Stockholder pursuant to, any note, bond, mortgage, indenture,
co
|
