Exhibit 10.2
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, and Google Inc., a Delaware corporation
(each of Comcast Corporation, Time Warner Cable Inc., Bright House
Networks, LLC and Google Inc. a “ Strategic Investor
” and collectively the “ Strategic Investors
”) and Intel Corporation, a Delaware corporation (“
Intel Parent ”), Intel Capital Corporation, a Delaware
corporation (“ Intel ”) and Intel Capital
(Cayman) Corporation, a Cayman Islands company (“Intel
Cayman”, and each of Intel and Intel Cayman, a “
Stockholder ” and collectively, “
Stockholder ”).
RECITALS
A. Intel is the record owner,
and, together with Intel Parent, the beneficial owner (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 and Intel Cayman is the record
owner and, together with Intel Parent, the beneficial owner and is
entitled to dispose of and to vote the number of shares of
Class A Common Stock of the Company, each as set forth
opposite such 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,
Intel Parent and the Strategic 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 Strategic Investors
have required that Stockholders enter into this Agreement, and
Stockholders desire to enter into this Agreement to induce Sprint
and the Strategic Investors to enter into the Transaction
Agreement.
D. Capitalized terms used but
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 .
Each 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 power and authority to execute and
deliver this Agreement and to perform the obligations to be
performed by Stockholder under this Agreement. This Agreement has
been duly executed and delivered by Stockholder and constitutes a
valid and binding obligation of Stockholder enforceable against
Stockholder 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) constitute
a breach of the organizational documents of Stockholder,
(B) result
in a violation or breach of or a default under (with or without
notice or lapse of time, or both) any contract, trust agreement,
loan or credit agreement, note, bond, mortgage, indenture, lease,
permit, agreement or other instrument 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 order, writ, injunction, decree, judgment, statute, rule or
regulation applicable to Stockholder and in existence as of the
date hereof, 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 (including shared beneficial ownership) as of
the date of this Agreement. Except as may be noted on
Schedule A,
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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 shares the power to vote and dispose of
those Subject Shares with Intel Parent. Other than such Subject
Shares or as contemplated by the Transaction Agreement, 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, the
Transaction Agreement and the Voting Agreement by and among the
Company, Eagle River Holdings, LLC, Intel and Intel Cayman entered
into August 29, 2006.
(d) Reliance .
Stockholder acknowledges and agrees that Sprint, the Company and
the Strategic Investors are entering into the Transaction Agreement
in part 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 the performance by Stockholder of its obligations
under this Agreement.
2.
Stockholder Covenants .
(a) Until the termination of
this Agreement in accordance with Section 4, each 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 connection with any written consent or other vote of the
Company’s stockholders with respect to the Transactions is
sought, each Stockholder will vote in favor of the approval of the
Transactions a number of its Subject Shares owned as of the record
date with respect to such Clearwire Stockholder Meeting (or the
date that any written consent is executed by Stockholder) (the
“ Record Date ”) representing the Allocated
Percentage (as defined below) of the total voting power as of the
Record Date of all of its Subject Shares owned as of the Record
Date; provided that each Stockholder shall be obligated
under this Agreement to vote its Subject Shares owned as of the
Record Date in favor of or otherwise consent to or approve the
Transactions only if in connection with such Clearwire Stockholder
Meeting or written consent, an Independent Majority (as defined
below) has voted in favor of or consented to or approved the
Transactions; and provided , further , that each
Stockholder shall be obligated under this Agreement to vote its
Subject Shares against or otherwise refrain from consenting to or
approving of the Transactions only if in connection with such
Clearwire Stockholder Meeting or written consent, an Independent
Majority (as defined below) has voted against or has not consented
to or has not approved the Transactions.
(b) The “ Allocated
Percentage ” means the percentage determined by dividing
(i) the number of votes cast in favor of the approval of the
Merger and the approval and adoption of the Transaction Agreement
by (ii) the total number of votes cast in those matters
(excluding for the purposes of this calculation all abstentions,
votes cast by Stockholder and any of its affiliates, votes cast by
Eagle River Holdings, LLC and any of its affiliates and votes cast
by any director
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or
executive officer of the Company (as specified in Item 401 of
Regulation S-K of the Securities Act)). “ Independent
Majority ” shall mean a majority of the votes cast at the
applicable Clearwire Stockholder Meeting or shares voted pursuant
to a written consent (excluding for the purposes of this
calculation all abstentions, votes cast by a Stockholder and any of
it affiliates, votes cast by Eagle River Holdings, LLC and any of
its affiliates and votes cast by any director or executive officer
of the Company (as specified in Item 401 of
Regulation S-K of the Securities Act)).
(c) Any vote subject to this
Agreement will be cast or consent will be given in accordance with
the procedures relating to that vote 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, no Stockholder shall 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 such written consent. Stockholder agrees
not to enter into any agreement or commitment with any Person the
effect of which would be prevent Stockholder from performing its
obligations under this Agreement. Except as expressly set forth in
this Agreement, each Stockholder may vote the Subject Shares in its
discretion on all matters submitted for the vote of stockholders of
the Company or in connection with any written consent of the
Company’s stockholders.
(d) Each Stockholder may
transfer any Subject Shares without restriction.
(e) Each 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.
(f) Each Stockholder agrees it
will not, nor will such 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
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