VOTING AGREEMENT
Exhibit 10.1
EXECUTION COPY
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.
2
(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
3
(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 seek to advise or influence any Person with respect to the voting of,
any shares of Clearwire Capital Stock intended to facilitate any Acquisition Proposal or to cause
stockholders of the Company not to vote to approve and adopt the Transaction Agreement.
Stockholder agrees it will not, and will direct any investment banker, attorney, agent or other
adviser or representative of the Stockholder not to, directly or indirectly, through any officer,
director, agent or otherwise, enter into, solicit, initiate, conduct or continue any discussions or
negotiations with, or knowingly encourage or respond to any inquiries or proposals by, or provide
any information to, any Person, other than the parties to the Transaction Agreement, relating to
any Acquisition Proposal. Notwithstanding the foregoing, nothing contained in this Agreement shall
prevent Stockholder from (A) complying with its disclosure obligations under applicable U.S.
securities laws or (B) in the event the Company furnishes information to or enters into discussions
or negotiations with a Person, as and to the extent permitted pursuant to Section 10.4(b) of the
Transaction Agreement. Stockholder shall be permitted to furnish information and engage in
discussions and negotiations with such Person as and to the same extent that the Company is
permitted to take such actions. Stockholder hereby represents that, as of the date hereof, it is
not engaged in discussions or negotiations with any party other than the parties to the Transaction
Agreement with respect to any Acquisition Proposal.
4
(f) So long as the Transaction Agreement has not been terminated, Stockholder hereby
irrevocably elects, upon the satisfaction of the conditions set forth in Section 2.1 of the
Transaction Agreement, to convert each share of its Class B Common Stock into one share of Class A
Common Stock in accordance with Article IV, Section 1(d)(i) of the Fourth Amended and Restated
Certificate of Incorporation of the Company, and Stockholder agrees to execute any documentation
required to effect such conversion. If the Transaction Agreement is terminated, the election in
this Section 2(f) shall be null and void.
(g) So long as the Transaction Agreement has not been terminated, Stockholder shall take all
action necessary to terminate, effective at the Closing, (i) the Voting Agreement dated as of
August 29, 2006 among the Company, Intel Pacific, Inc., Intel Capital Corporation and Stockholder
and (ii) the Side Letter dated as of June 28, 2006 by and among the Company, Intel Pacific, Inc.
and Stockholder.
3. Stockholder Capacity. No Person who owns, directly or indirectly, any Capital Stock of
Stockholder or any director or officer of Stockholder, in each case, who is or becomes during the
term of this Agreement a director or officer of the Company will be deemed to make any agreement or
understanding in this Agreement in that Person’s capacity as a director or officer of the Company.
Stockholder is entering into this Agreement solely in its capacity as the record holder or
beneficial owner of its Subject Shares, and nothing in this Agreement will limit or affect any
actions taken by any Person who owns, directly or indirectly, any Capital Stock of Stockholder or
any director or officer of Stockholder in his or her capacity as a director or officer of the
Company to the extent specifically permitted by the Transaction Agreement or following the
termination of the Transaction Agreement. Without limiting the generality of the foregoing, Sprint
and the Investors acknowledge that each of Xxxxx X. XxXxx, Xxxxxxxx X. Xxxxx, R. Xxxxxx Xxxxxxx and
Xxxxxxxx Xxxxxx is a member of the Board of Directors of Company and is also affiliated with
Stockholder, and that each of the foregoing persons in his capacity as a member of the Board of
Directors of Company may, in the exercise of his fiduciary duties, take actions that would violate
this Agreement if such actions were taken by Stockholder. Sprint and the Investors agree that no
such action taken in such individual’s capacity as a member of the Board of Directors of Company
will be deemed a violation of this Agreement.
4. Termination. This Agreement will terminate
(i) on the earliest of:
(A) the approval and adoption of the Transaction Agreement at the Clearwire Stockholder
Meeting,
(B) termination of the Transaction Agreement, unless the termination is effected under Section
12.1(b)(iii), Section 12.1(c)(i) or Section 12.1(d)(i) of the Transaction Agreement as a result of
a Superior Proposal,
(C) six months after termination of the Transaction Agreement under Section 12.1(b)(iii),
Section 12.1(c)(i) or Section 12.1(d)(i) as a result of a Superior Proposal, or
(ii) at any time on written agreement of each of Sprint, the Company and four of the five
Investors.
5
5. Breach; Survival
No party hereto will be relieved from any liability for intentional breach of this Agreement by
reason of any termination of this Agreement. Regardless of the foregoing, Sections 6 through 19 of
this Agreement will survive the termination of this Agreement.
6. Appraisal Rights. To the extent permitted by applicable law, Stockholder waives any rights of
appraisal or rights to dissent with respect to the Merger or any of the transactions contemplated
by the Transaction Agreement that Stockholder may have under applicable law.
7. Publication. Stockholder authorizes the Company to publish and disclose in the Proxy Statement
or the Registration Statement (including any and all documents and schedules filed with the SEC
relating to the Proxy Statement or the Registration Statement) its identity and ownership of shares
of Clearwire Capital Stock and the nature of its commitments, arrangements and understandings made
pursuant to this Agreement.
8. Controlling Law; Amendment. This Agreement will be governed by and construed and enforced in
accordance with the internal Laws of the State of Delaware without reference to its choice of law
rules. This Agreement may not be amended, modified or supplemented except by written agreement of
each of the parties.
9. Jurisdiction. Any Proceeding seeking to enforce any provision of, or based on any matter
arising out of or in connection with, this Agreement may only be brought in the courts of the State
of Delaware or the federal courts located in the State of Delaware, and each of the parties
consents to the jurisdiction of the courts (and of the appropriate appellate courts therefrom) in
any Proceeding and irrevocably waives, to the fullest extent permitted by Law, any objection that
it may now or hereafter have to the laying of the venue of any Proceeding in any court or that any
Proceeding that is brought in any court has been brought in an inconvenient forum. Process in any
Proceeding may be served on any party anywhere in the world, whether within or without the
jurisdiction of the court.
10. Specific Performance and other Remedies. Stockholder acknowledges that the rights of the other
parties under this Agreement (including third party beneficiaries hereof) are special, unique and
of extraordinary character and that, if Stockholder violates or fails or refuses to perform any
covenant or agreement made by it in this Agreement, the other parties (including third party
beneficiaries hereof) may be without an adequate remedy at law. If Stockholder violates or fails
or refuses to perform any covenant or agreement made by it in this Agreement, any other party may,
subject to the terms of this Agreement and in addition to any remedy at law for damages or other
relief, institute and prosecute an Action in any court of competent jurisdiction to enforce
specific performance of the covenant or agreement or seek any other equitable relief.
11. Waiver. Any agreement on the part of a party to any extension or waiver of any provision of
this Agreement will be valid only if set forth in an instrument in writing signed on behalf of the
party (and, if the Company is the relevant party, also signed by four of the five Investors). A
waiver by a party of the performance of any covenant, agreement, obligation, condition,
representation or warranty will not be construed as a waiver of any other covenant,
6
agreement, obligation, condition, representation or warranty. A waiver by any party of the
performance of any act will not constitute a waiver of the performance of any other act or an
identical act required to be performed at a later time.
12. Assignment; Successors in Interest. No assignment or transfer by any party of that party’s
rights and obligations under this Agreement will be made except with the prior written consent of
the other parties. This Agreement will be binding on and will inure to the benefit of the parties
and their successors and permitted assigns, and any reference to a party will also be a reference
to the successors or permitted assigns of that party.
13. Enforcement of Certain Rights. Nothing expressed or implied in this Agreement is intended, or
will be construed, to confer on or give any Person other than the parties, and their successors or
permitted assigns, any right, remedy, obligation or liability under or by reason of this Agreement,
or result in the Person’s being deemed a third party beneficiary of this Agreement.
14. Notices. All notices, communications and deliveries under this Agreement will be made in
writing signed by or on behalf of the party making the notice, communication or delivery, will
specify the Section under this Agreement under which it is given or being made, and will be
delivered by established overnight courier (with evidence of delivery and postage and other fees
prepaid) as follows:
To Sprint:
|
Sprint Nextel Corporation | |
| 0000 Xxxxxx Xxxxxx Xxxxx | ||
| Xxxxxx, Xxxxxxxx 00000 | ||
| Attention: President of Strategic Planning and Corporate Initiatives | ||
| Facsimile No.: (000) 000-0000 | ||
| with copies to: | ||
| Sprint Nextel Corporation | ||
| 0000 Xxxxxx Xxxxxxx | ||
| Xxxxxxxx Xxxx, Xxxxxx 00000 | ||
| Attention: Vice President — Law, Corporate Transactions and Business Law | ||
| Facsimile No.: (000) 000-0000 | ||
| King & Spalding | ||
| 0000 Xxxxxxxxx Xxxxxx, X.X. | ||
| Xxxxxxx, Xxxxxxx 00000 | ||
| Attention: Xxxxxxx X. Xxxx | ||
| Facsimile No.: (000) 000-0000 | ||
To Company:
|
Clearwire Corporation | |
| 0000 Xxxxxxxx Xxxxx | ||
| Xxxxxxxx, Xxxxxxxxxx 00000 | ||
| Attention: Chief Executive Officer |
7
| Facsimile No.: (000) 000-0000 | ||
| with copies to: | ||
| Clearwire Corporation | ||
| 0000 Xxxxxxxx Xxxxx | ||
| Xxxxxxxx, Xxxxxxxxxx 00000 | ||
| Attention: Legal Department | ||
| Facsimile No.: (000) 000-0000 | ||
| Xxxxx Xxxxxx Xxxxxxxx LLP | ||
| 0000 Xxxxx Xxxxxx, Xxxxx 0000 | ||
| Xxxxxxx, Xxxxxxxxxx 00000 | ||
| Attention: Xxxxx Xxxxxxx Tune | ||
| Facsimile No.: (000) 000-0000 | ||
| Xxxxxxxx & Xxxxx LLP | ||
| Citigroup Center | ||
| 000 Xxxx 00xx Xxxxxx | ||
| Xxx Xxxx, Xxx Xxxx 00000 | ||
| Attention: Xxxxxx X. Xxxxx | ||
| Facsimile No.: (000) 000-0000 | ||
To Intel Corporation:
|
Intel Corporation | |
| 0000 Xxxxxxx Xxxxxxx Xxxx., XX XX0-00 | ||
| Xxxxx Xxxxx, Xxxxxxxxxx 00000-0000 | ||
| Attention: President, Intel Capital | ||
| Facsimile No.: (000) 000-0000 | ||
| Intel Corporation | ||
| 0000 Xxxxxxx Xxxxxxx Xxxx., XX XX0-00 | ||
| Xxxxx Xxxxx, Xxxxxxxxxx 00000-0000 | ||
| Attention: Intel Capital Portfolio Manager | ||
| Facsimile No.: (000) 000-0000 | ||
| Intel Corporation | ||
| 0000 Xxxxxxx Xxxxxxx Xxxx., XX XX0-000 | ||
| Xxxxx Xxxxx, Xxxxxxxxxx 00000-0000 | ||
| Attention: Intel Capital Group General Counsel | ||
| Facsimile No.: (000) 000-0000 | ||
| Intel Corporation | ||
| 0000 Xxxxxxx Xxxxxxx Xxxx., XX XX0-000 | ||
| Xxxxx Xxxxx, Xxxxxxxxxx 00000-0000 | ||
| Attention: Director, U.S. Tax and Trade | ||
| Facsimile No.: (000) 000-0000 |
8
| with copies to: | ||
| Xxxxxx, Xxxx & Xxxxxxxx LLP | ||
| 0000 Xxxx Xxxx Xxxx | ||
| Xxxx Xxxx, Xxxxxxxxxx 00000 | ||
| Attention: Xxxxxxx X. Xxxxxxxx | ||
| Facsimile No.: (000) 000-0000 | ||
| Xxxxxx, Xxxx & Xxxxxxxx LLP | ||
| 000 Xxxxx Xxxxx Xxxxxx | ||
| Xxx Xxxxxxx, Xxxxxxxxxx 00000-0000 | ||
| Attention: Xxxx X. Xxxxxx | ||
| Facsimile No.: (000) 000-0000 | ||
To Comcast Corporation: |
Comcast Corporation | |
| One Comcast Center | ||
| 0000 Xxxx X. Xxxxxxx Xxxxxxxxx | ||
| Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000 | ||
| Attention: Chief Financial Officer | ||
| Facsimile No.: (000) 000-0000 | ||
| with copies to: | ||
| Comcast Corporation | ||
| One Comcast Center | ||
| 0000 Xxxx X. Xxxxxxx Xxxxxxxxx | ||
| Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000 | ||
| Attention: General Counsel | ||
| Facsimile No.: (000) 000-0000 | ||
| Xxxxx Xxxx & Xxxxxxxx | ||
| 000 Xxxxxxxxx Xxxxxx | ||
| Xxx Xxxx, Xxx Xxxx 00000 | ||
| Attention: Xxxxx X. Xxxxxx | ||
| Facsimile No.: (000) 000-0000 | ||
To Time Warner
Cable Inc.: |
Time Warner Cable Inc. | |
| One Time Xxxxxx Xxxxxx | ||
| Xxxxx Xxxxx | ||
| Xxx Xxxx, Xxx Xxxx 00000 | ||
| Attention: General Counsel | ||
| Facsimile No.: (000) 000-0000 | ||
| with a copy to: |
9
| Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx LLP | ||
| 0000 Xxxxxx xx xxx Xxxxxxxx | ||
| Xxx Xxxx, Xxx Xxxx 00000-0000 | ||
| Attention: Xxxxxxx X. Xxxxxx | ||
| Xxxxxx X. Xxxxxxx | ||
| Facsimile No.: (000) 000-0000 | ||
To Bright House |
||
Networks, LLC:
|
c/o Advance/Xxxxxxxx Partnership | |
| 0000 Xxxxxxxxxx Xxxxx | ||
| Xxxx Xxxxxxxx, XX 00000 | ||
| Attention: Xx. Xxx Xxxxxxxx | ||
| Facsimile: (000) 000-0000 | ||
| with a copy to: | ||
| Xxxxx, Bermant & Xxxxx LLP | ||
| Xxxx Xxxxx Xxxxxx | ||
| Xxx Xxxx, XX 00000 | ||
| Attention: Xxxxxx X. Xxxxxxxxxx, Esq. | ||
| Facsimile: (000) 000-0000 | ||
To Google Inc.:
|
Google Inc. | |
| 0000 Xxxxxxxxxxxx Xxxxxxx | ||
| Xxxxxxxx Xxxx, Xxxxxxxxxx 00000 | ||
| Attn: General Counsel | ||
| Facsimile No.: (000) 000-0000 | ||
| with a copy to: | ||
| Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx, P.C. | ||
| 000 Xxxx Xxxx Xxxx | ||
| Xxxx Xxxx, Xxxxxxxxxx 00000 | ||
| Attn: Xxxxx Xxxxx, Esq. | ||
| Facsimile No.: (000) 000-0000 | ||
To Stockholder:
|
Eagle River Holdings, LLC | |
| 0000 Xxxxxxxx Xxxxx | ||
| Xxxxxxxx, XX 00000 | ||
| Attention: Chief Executive Officer |
15. Severability. Any provision of this Agreement that is prohibited or unenforceable in any
jurisdiction will, as to the jurisdiction, be ineffective to the extent of the prohibition or
unenforceability without invalidating the remaining provisions of this Agreement, and any
prohibition or unenforceability in one jurisdiction will not invalidate or render unenforceable the
10
provision in any other jurisdiction. If permitted by Law, each party waives any provision of Law
that renders any provision prohibited or unenforceable in any respect.
16. Integration. This Agreement (together with the Transaction Agreement to the extent referenced
in this Agreement) supersedes all negotiations, agreements and understandings among the parties
with respect to the subject matter of this Agreement and constitutes the entire agreement among the
parties.
17. Counterparts. This Agreement may be executed in two or more counterparts, each of which will
be deemed an original, and it will not be necessary in making proof of this Agreement or the terms
of this Agreement to produce or account for more than one counterparts.
18. Waiver of Jury Trial. Each of the parties irrevocably waives any and all right to trial by
jury in any legal proceeding arising out of or related to this Agreement or the Transactions.
19. Interpretation. Unless the context of this Agreement otherwise clearly requires,
(a) references to the plural include the singular, and references to the singular include the
plural, and
(b) the words “include,” “includes” and “including” do not limit the preceding terms or words
and will be deemed to be followed by the words “without limitation”.
Unless otherwise set forth in this Agreement, references in this Agreement to
(a) any document, instrument or agreement (including this Agreement)
(A) includes and incorporates all Schedules,
(B) includes all documents, instruments or agreements issued or executed in replacement
of those documents, instruments or agreements, and
(C) means the document, instrument or agreement, or replacement or predecessor thereto,
as amended, modified or supplemented from time to time in accordance with its terms and in
effect at any given time, and
All Section and Schedule references in this Agreement are to Sections and Schedules of this
Agreement, unless otherwise specified. This Agreement will not be construed as if prepared by one
of the parties, but rather according to its fair meaning as a whole, as if all parties had prepared
it.
[SIGNATURE PAGE FOLLOWS]
11
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and date
first above written.
| EAGLE RIVER HOLDINGS, LLC |
||||
| By: | /s/ Xxxx Xxxxx | |||
| Name: | Xxxx Xxxxx | |||
| Title: | Vice President, Corporate Development | |||
[Signature Page to the Eagle River Voting Agreement]
| SPRINT NEXTEL CORPORATION |
||||
| By: | /s/ Xxxxx X. Xxxxx | |||
| Name: | Xxxxx X. Xxxxx | |||
| Title: | President of Strategic Planning and Corporate Initiatives | |||
[Signature Page to the Eagle River Voting Agreement]
| CLEARWIRE CORPORATION |
||||
| By: | /s/ Xxxxxxxx Xxxxx | |||
| Name: | Xxxxxxxx X. Xxxxx | |||
| Title: | Chief Executive Officer | |||
[Signature Page to the Eagle River Voting Agreement]
| INTEL CORPORATION |
||||
| By: | /s/ Xxxxxx Xxxxxxx | |||
| Name: | Xxxxxx Xxxxxxx | |||
| Title: | Executive Vice President President, Intel Capital |
|||
[Signature Page to the Eagle River Voting Agreement]
| COMCAST CORPORATION |
||||
| By: | /s/ Xxxxxx X. Pick | |||
| Name: | Xxxxxx X. Pick | |||
| Title: | Senior Vice President | |||
[Signature Page to the Eagle River Voting Agreement]
| TIME WARNER CABLE INC. |
||||
| By: | /s/ Xxxxxx Xxxxxx | |||
| Name: | Xxxxxx X. Xxxxxx | |||
| Title: | Senior Executive Vice President and Chief Financial Officer | |||
[Signature Page to the Eagle River Voting Agreement]
| BRIGHT HOUSE NETWORKS, LLC |
||||
| By: | /s/ Xxx Xxxxxxxx | |||
| Name: | Xxx Xxxxxxxx | |||
| Title: | Vice President, Strategy & Partnership | |||
[Signature Page to the Eagle River Voting Agreement]
| GOOGLE INC. |
||||
| By: | /s/ J. Xxxx Xxxxxx | |||
| Name: | J. Xxxx Xxxxxx | |||
| Title: | Vice President and General Counsel | |||
[Signature Page to the Eagle River Voting Agreement]
Schedule A
| Number of shares of | Number of shares of | |||||||
| Class A Common | Class B Common | |||||||
| Stockholder | Stock | Stock | ||||||
Eagle River Holdings, LLC |
17,232,005 | 18,690,953 | ||||||
