Exhibit 10.1
EXECUTION COPY
VOTING AGREEMENT
VOTING AGREEMENT, dated as of
May 7, 2008 (this “ Agreement ”), by and
among Sprint Nextel Corporation, a Kansas corporation (“
Sprint ”), Clearwire Corporation, a Delaware
corporation (the “ Company ”), Comcast
Corporation, a Pennsylvania corporation, Time Warner Cable Inc., a
Delaware corporation, Bright House Networks, LLC , a Delaware
limited liability company, Google Inc., a Delaware corporation, and
Intel Corporation, a Delaware corporation (each of Comcast
Corporation, Time Warner Cable Inc., Bright House Networks, LLC,
Google Inc. and Intel Corporation an “ Investor
” and collectively the “ Investors ”) and
Eagle River Holdings, LLC, a Washington limited liability company
(“ Stockholder ”).
RECITALS
A. Stockholder
“beneficially owns” (as such term is defined in
Rule 13d-3 promulgated under the Exchange Act) and is entitled
to dispose of and to vote the number of shares of Class A
common stock, par value $.0001 per share (“ Class A
Common Stock ”), and Class B common stock, par value
$.0001 per share (“ Class B Common Stock
”), of the Company set forth opposite the Stockholder’s
name on Schedule A to this Agreement (the “ Subject
Shares ”).
B. Concurrently with the
execution and delivery of this Agreement, the Company, Sprint, and
the Investors are entering into a Transaction Agreement and Plan of
Merger (as amended from time to time, the “ Transaction
Agreement ”) pursuant to which the parties to the
Transaction Agreement will perform their obligations thereunder in
accordance with the terms set forth therein.
C. As a condition to entering
into the Transaction Agreement, Sprint and the Investors have
required that Stockholder enter into this Agreement and Stockholder
desires to enter into this Agreement to induce Sprint and the
Investors to enter into the Transaction Agreement.
D. Capitalized terms not defined
in this Agreement have the meaning ascribed to them in the
Transaction Agreement.
NOW, THEREFORE, in consideration of
the foregoing and the mutual premises, representations, warranties,
covenants and agreements contained in this Agreement, the parties
to this Agreement, intending to be legally bound, agree as
follows:
1.
Stockholder Representations and Warranties .
Stockholder represents and warrants
to the other parties as follows:
(a) Authority .
Stockholder is duly organized, validly existing and in good
standing under the laws of the state of its organization.
Stockholder has all requisite legal power and authority to execute
and deliver this Agreement and to consummate the transactions
contemplated by this Agreement. This Agreement has been duly
authorized, executed and
delivered by Stockholder and constitutes a valid and binding
obligation of Stockholder enforceable in accordance with its terms
subject to the Bankruptcy Exception.
(b) No Conflicts .
(i) Except
for compliance with the HSR Act and appropriate filings by
Stockholder under the Exchange Act no filing by Stockholder with
any governmental body or authority, and no authorization, consent
or approval of any other Person is necessary for the execution of
this Agreement by Stockholder or the performance by Stockholder of
the transactions contemplated by this Agreement,
(ii) none
of the execution and delivery of this Agreement by Stockholder, the
performance by Stockholder of its obligations under this Agreement
or compliance by Stockholder with any of the provisions of this
Agreement will
(A) conflict
with or result in any breach of the organizational documents of
Stockholder,
(B) result
in, or give rise to, a violation or breach of or a default under
(with or without notice or lapse of time, or both) any of the terms
of any contract, trust agreement, loan or credit agreement, note,
bond, mortgage, indenture, lease, permit, understanding, agreement
or other instrument or obligation to which Stockholder is a party
or by which Stockholder or any of its Subject Shares or assets may
be bound or
(C) violate
any applicable order, writ, injunction, decree, judgment, statute,
rule or regulation, and
(iii) no
consent, approval, order, authorization or permit of, or
registration, declaration or filing with or notification to, any
Governmental Authority or any other Person is required by or with
respect to Stockholder in connection with the execution and
delivery of this Agreement by Stockholder or the performance by
Stockholder of Stockholder’s obligations hereunder, except
for (A) the filing with the SEC of any Schedules 13D or 13G or
amendments to Schedules 13D or 13G and filings under
Section 16 of the Exchange Act as may be required in
connection with this Agreement and the transactions contemplated
hereby and (B) such consents, approvals, orders,
authorizations, permits or filings the failure of which to be
obtained or made would not have a material adverse effect on
Stockholder’s ability to perform its obligations
hereunder.
(c) Subject Shares .
Schedule A sets forth, opposite Stockholder’s name, the
number of Subject Shares over which Stockholder has record or
beneficial ownership as of the date of this Agreement. As of the
date of this Agreement, Stockholder is the record or beneficial
owner of the Subject Shares denoted as being owned by Stockholder
on Schedule A and has the sole power to vote and dispose of
those Subject Shares. Other than such Subject Shares, Stockholder
does not own beneficially or of record any Clearwire Capital Stock
or any interest therein. Stockholder has good and valid title to
the Subject Shares denoted as being owned by Stockholder on
Schedule A, free and clear of any and all pledges, mortgages,
liens, charges, proxies, voting agreements, encumbrances, adverse
claims, options, security interests and demands of any nature or
kind whatsoever, other than those created by this Agreement.
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(d) Reliance .
Stockholder acknowledges and agrees that Sprint, the Company and
the Investors are entering into the Transaction Agreement in
reliance upon Stockholder’s execution, delivery and
performance of this Agreement.
(e) Litigation . As of
the date of this Agreement, there is no action, proceeding or
investigation pending or, to the knowledge of Stockholder,
threatened against Stockholder that questions the validity of this
Agreement or any action taken or to be taken by Stockholder in
connection with this Agreement.
2.
Stockholder Covenants .
(a) Until the termination of
this Agreement in accordance with Section 4, Stockholder, in
its capacity as a stockholder of the Company, agrees that, at the
Clearwire Stockholder Meeting or at any adjournment, postponement
or continuation of the Clearwire Stockholder Meeting or in any
other circumstances occurring before the Clearwire Stockholder
Meeting upon which a vote, consent or other approval (including by
written consent) with respect to the Merger and the Transaction
Agreement or any Acquisition Proposal is sought, Stockholder will
vote in favor of the approval of the Merger and the approval and
adoption of the Transaction Agreement and, except with the written
consent (which may be withheld by each in its sole discretion) of
Sprint, the Company and four of the five Investors, against any
Acquisition Proposal a number of Subject Shares representing not
less than 40% of the total voting power of all Clearwire Capital
Stock outstanding as of the date of this Agreement (on a non-fully
diluted basis) that is entitled to vote on that matter (the “
Voting Share Amount ”); provided, however, that
the Voting Share Amount shall be automatically reduced from 40% to
25% of such total voting power if the Transaction Agreement is
terminated but this Agreement remains in effect pursuant to
Section 4(i)(C) below.
(b) Any vote subject to this
Agreement will be cast, and any consent subject to this Agreement
will be given, in accordance with the procedures relating to that
vote or consent so as to ensure that it is duly counted for
purposes of determining that a quorum is present and for purposes
of recording the results of that vote or consent. Notwithstanding
the foregoing, Stockholder shall not have an obligation to execute
any written consent in lieu of a meeting with respect thereto for
the purpose of the approval and adoption of the Transaction
Agreement and the terms thereof unless the Company shall have
requested that such approval and adoption be effected through the
execution of any such written consent. Stockholder agrees not to
enter into any agreement or commitment with any Person the effect
of which would be inconsistent with or violative of any provisions
or agreements in this Section 2. Except as expressly set forth
in this Agreement, Stockholder may vote the Subject Shares in its
discretion on all matters submitted for the vote of stockholders of
the Company.
(c) Stockholder agrees not to,
directly or indirectly,
(i) sell, transfer, tender, pledge,
encumber, assign or otherwise dispose of (collectively, a “
Transfer ”) or enter into any agreement, option or
other arrangement with respect to, or consent to a Transfer of, or
convert or agree to convert, any or all of the Subject Shares to
any Person, or
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(ii) grant any proxies (other than
the Company proxy card in connection with the Clearwire Stockholder
Meeting if and to the extent such proxy is consistent with
Stockholder’s obligations under this Section 2 of this
Agreement), deposit any Subject Shares into any voting trust or
enter into any voting arrangement, whether by proxy, voting
agreement or otherwise, with respect to any of the Subject Shares,
other than pursuant to this Agreement.
Notwithstanding the foregoing,
nothing herein shall prevent Stockholder from distributing any of
its Subject Shares to a member of Stockholder provided that such
member agrees in writing (in a form reasonably acceptable to the
other parties to this Agreement) to be bound by and to comply with
all of the terms of this Agreement as a “Stockholder”
as if such member were an original signatory hereto (each such
member a “Subject Member”). In addition, Stockholder
and any Subject Member may Transfer Subject Shares without
restriction so long as the Subject Shares retained collectively by
Stockholder and all Subject Members after the Transfer constitute
at least the applicable Voting Share Amount then in effect. If a
proposed Transfer of Subject Shares would drop the collective
holdings of Stockholder and all of its Subject Members below the
then applicable Voting Share Amount, such Transfer will only be
permitted if the Transfer is made by a Subject Member for estate
planning purposes and the Subject Member retains direct or indirect
sole voting control over such Subject Shares through the date of
the Stockholder Vote.
(d) Stockholder further agrees
not to commit or agree to take any of the foregoing actions or take
any action that would have the effect of preventing, impeding,
interfering with or adversely affecting its ability to perform its
obligations under this Agreement.
(e) Stockholder agrees it will
not, nor will Stockholder permit any Affiliate controlled by
Stockholder to, nor will Stockholder act in concert with or permit
any such Affiliate to act in concert with any Person to make, or in
any manner participate in, directly or indirectly, a
“solicitation” (as such term is used in the rules of
the SEC) of proxies or powers of attorney or similar rights to
vote, or se
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