LIMITED GUARANTEE
Exhibit (d)(2)
EXECUTION
VERSION
LIMITED GUARANTEE, dated as of December 17, 2009 (this “Limited Guarantee”), by S.A.C.
Capital Management, LLC (the “Guarantor”) in favor of Airvana, Inc. (the “Guaranteed
Party”).
1. LIMITED GUARANTEE. To induce the Guaranteed Party to enter into that certain
Agreement and Plan of Merger, dated as of December 17, 2009 (as amended, restated, supplemented or
otherwise modified from time to time pursuant to the terms thereof, the “Merger
Agreement”), by and among the Guaranteed Party, 72 Mobile Acquisition Corp. and 72 Mobile
Holdings, LLC (the “Buyer”), pursuant to which and subject to the terms and conditions of
which the Guaranteed Party will become a wholly owned subsidiary of the Buyer (the
“Merger”), the Guarantor, intending to be legally bound, hereby absolutely, irrevocably and
unconditionally guarantees to the Guaranteed Party, on the terms and conditions set forth herein
the due and punctual payment as and when due of the payment obligations of Buyer with respect to
(a) the Buyer Termination Fee, subject to the limitations of the Merger Agreement, (b) any amounts
payable by Buyer pursuant to Section 8.3(e) of the Merger Agreement in respect of the Buyer
Termination Fee, subject to the limitations of the Merger Agreement, (c) any amounts payable by
Buyer pursuant to Section 5.4(d) of the Merger Agreement; (d) any amounts payable by Buyer pursuant
to Section 6.13 of the Merger Agreement and (e) any amounts payable by Buyer pursuant to Section
6.16 of the Merger Agreement ((a) through (e) collectively, the “Obligations”), provided
that notwithstanding anything to the contrary contained in this Limited Guarantee, in no event
shall the Guarantor’s aggregate liability under this Limited Guarantee exceed $25,000,000.00, plus
any amounts payable by Buyer pursuant to Section 8.3(e) of the Merger Agreement in respect of the
Buyer Termination Fee, plus any Reimbursement Obligations, less the portion of the foregoing
amounts, if any, indefeasibly paid to the Guaranteed Party by the Buyer that is not rescinded or
otherwise returned, the Transitory Subsidiary or any other Person (the “Cap”), it being
understood that this Limited Guarantee may not be enforced without giving effect to the Cap. The
Guaranteed Party hereby agrees that in no event shall the Guarantor be required to pay any amount
to the Guaranteed Party under, in respect of, or in connection with this Limited Guarantee, the
Equity Commitment Letter, the Merger Agreement or the transactions contemplated hereby and thereby
other than as expressly set forth herein. All payments hereunder shall be made in lawful money of
the United States, in immediately available funds. Each capitalized term used but not defined
herein shall have the meaning ascribed to it in the Merger Agreement, except as otherwise provided.
If the Buyer fails to pay the Obligations when due, then all of the Guarantor’s liabilities to
the Guaranteed Party hereunder in respect of such Obligations shall, at the Guaranteed Party’s
option, become immediately due and payable and the Guaranteed Party may at any time and from time
to time, at the Guaranteed Party’s option, take any and all actions available hereunder or under
applicable law to collect the Obligations from the Guarantor. In furtherance of the foregoing, the
Guarantor acknowledges that the Guaranteed Party may, in its sole discretion, bring and prosecute a
separate action or actions against the Guarantor for the full amount of the Obligations (subject to
the Cap) regardless of whether any action is brought against the Buyer.
The Guarantor agrees to pay on demand all reasonable and documented out-of-pocket expenses
(including reasonable fees and expenses of counsel) incurred by the Guaranteed Party
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in connection
with the enforcement of its rights hereunder if the Guarantor fails or refuses to make any payment
to the Guaranteed Party hereunder when due and payable and it is judicially determined that the
Guarantor is required to make such payment hereunder. Amounts payable to the Guaranteed Party
pursuant to the previous sentence shall be referred to herein as the “Reimbursement
Obligations”.
2. NATURE OF GUARANTEE. The Guarantor’s liability hereunder is absolute,
unconditional, irrevocable and continuing irrespective of any modification, amendment or waiver of
or any consent to departure from the Merger Agreement that may be agreed to by the Buyer or the
Transitory Subsidiary. In the event that any payment to the Guaranteed Party in respect of the
Obligations is rescinded or must otherwise be returned for any reason whatsoever, the Guarantor
shall remain liable hereunder with respect to the Obligations (subject to the Cap) as if such
payment had not been made. This Limited Guarantee is an unconditional and continuing guarantee of
payment and not of collection, and the Guaranteed Party shall not be required to proceed against
the Buyer or the Transitory Subsidiary before proceeding against the Guarantor hereunder.
3. CHANGES IN OBLIGATION, CERTAIN WAIVERS. The Guarantor agrees that the Guaranteed
Party may, in its sole discretion, at any time and from time to time, without notice to or further
consent of the Guarantor, extend the time of payment of the Obligations, and may also make any
agreement with the Buyer or the Transitory Subsidiary for the extension or renewal thereof, in
whole or in part, without in any way impairing or affecting the Guarantor’s obligations under this
Limited Guarantee or affecting the validity or enforceability of this Limited Guarantee. The
Guarantor agrees that the obligations of the Guarantor hereunder shall not be released or
discharged, in whole or in part, or otherwise affected by (a) the failure or delay on the part of
the Guaranteed Party to assert any claim or demand or to enforce any right or remedy against the
Buyer or the Transitory Subsidiary; (b) any change in the time, place or manner of payment of any
of the Obligations, or any rescission, waiver, compromise, consolidation, or other amendment or
modification of any of the terms or provisions of the Merger Agreement made in accordance with the
terms thereof; (c) the addition or substitution of any entity or other Person now or hereafter
liable with respect to the Obligations or otherwise interested in the transactions contemplated by
the Merger Agreement; (d) any change in the corporate existence, structure or ownership of the
Buyer, the Transitory Subsidiary or any Person now or hereafter liable with respect to the
Obligations or otherwise interested in the transactions contemplated by the Merger Agreement; (e)
the existence of any claim, set-off or other right which the Guarantor may have at any time against
the Buyer, the Transitory Subsidiary or the Guaranteed Party or any of their respective Affiliates,
whether in connection with the Obligations or otherwise except as provided herein; (f) the adequacy
of any other means the Guaranteed Party may have of obtaining payment related to the Obligations;
(g) any insolvency, bankruptcy, reorganization or other similar proceeding affecting the Buyer, the
Transitory Subsidiary or any other Person now or hereafter liable with respect to the Obligations
or otherwise interested in the transactions contemplated by the Merger Agreement; and (h) any
discharge of the Guarantor as a matter of applicable law (other than as a result of, and to the
extent of, payment of the Obligations in accordance with the terms of the Merger Agreement). To
the fullest extent permitted by applicable law, the Guarantor hereby expressly waives any and
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all rights or defenses arising by reason of any applicable law which would otherwise require any
election of remedies by the Guaranteed Party. The Guarantor waives promptness, diligence, notice
of the acceptance of this Limited Guarantee and of the Obligations, presentment, demand for
payment, notice of non-performance, default, dishonor and protest, notice of the Obligations
incurred and all other notices of any kind, all defenses which may be available by virtue of any
valuation, stay, moratorium or other similar applicable law now or hereafter in effect, and all
suretyship defenses generally (other than fraud by the Guaranteed Party or any of its Affiliates or
defenses to the payment of the Obligations that are available to Buyer under the Merger Agreement
or breach by the Guaranteed Party of this Limited Guarantee). The Guarantor acknowledges that it
will receive substantial direct and indirect benefits from the transactions contemplated by the
Merger Agreement and that the waivers, agreements, covenants, obligations and other terms in this
Limited Guarantee are knowingly made and agreed to in contemplation of such benefits. The
Guaranteed Party hereby covenants and agrees that it shall not institute, directly or indirectly,
and shall cause its Affiliates not to institute, directly or indirectly, any proceeding or bring
any other claim arising under, in respect of or in connection with the Equity Commitment Letter,
the Merger Agreement or the transactions contemplated thereby, against the Guarantor or any
Non-Recourse Party (as defined in Section 9 herein), except for claims against the Guarantor under
this Limited Guarantee (subject to the limitations described herein) and claims under the
Confidentiality Agreement. The Guarantor hereby covenants and agrees that it shall not assert,
directly or indirectly, in any proceeding that this Limited Guarantee is illegal, invalid or
unenforceable in accordance with its terms.
4. NO WAIVER; CUMULATIVE RIGHTS. For so long as this Limited Guarantee shall remain
in effect in accordance with Section 8 hereof, no failure to exercise, and no delay in exercising,
any right, remedy or power hereunder shall operate as a waiver thereof; nor shall any single or
partial exercise of any right, remedy or power hereunder preclude any other or future exercise of
any right, remedy or power hereunder. Each and every right, remedy and power hereby granted to the
Guaranteed Party shall be cumulative and not exclusive of any other, and may be exercised by the
Guaranteed Party at any time or from time to time. The Guaranteed Party shall not have any
obligation to proceed at any time or in any manner against, or exhaust any or all of the Guaranteed
Party’s rights against, the Buyer, the Transitory Subsidiary or any other Person now or hereafter
liable for any Obligation or interested in the transactions contemplated by the Merger Agreement
prior to proceeding against the Guarantor.
5. REPRESENTATIONS AND WARRANTIES. The Guarantor hereby represents and warrants that:
(a) It has all requisite limited liability company power and authority to execute,
deliver and perform this Limited Guarantee; the execution, delivery and performance of this
Limited Guarantee have been duly and validly authorized by all necessary action, and do not
contravene any provision of the Guarantor’s charter, partnership agreement, operating
agreement or similar organizational documents, or any applicable law or contractual
restriction binding on the Guarantor or its assets; and the Person executing and delivering
this Limited Guarantee on behalf of the Guarantor is duly authorized to do so;
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(b) all consents, approvals, authorizations, permits of, filings with
and notifications to, any governmental entity necessary for the due execution, delivery and
performance of this Limited Guarantee by the Guarantor have been obtained or made and all
conditions thereof have been duly complied with, and no other action by, and no notice to or
filing with, any governmental entity is required in connection with the execution, delivery
or performance of this Limited Guarantee;
(c) this Limited Guarantee constitutes a legal, valid and binding obligation of the
Guarantor enforceable against the Guarantor in accordance with its terms, subject to (i) the
effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or
other similar applicable laws affecting creditors’ rights generally, and (ii) general
equitable principles (whether considered in a proceeding in equity or at law); and
(d) the Guarantor has the financial capacity to pay and perform its obligations under
this Limited Guarantee, and all funds necessary for the Guarantor to fulfill its obligations
under this Limited Guarantee shall be available to the Guarantor (or its permitted assignee
pursuant to Section 6 hereof) for so long as this Limited Guarantee shall remain in effect
in accordance with Section 8 hereof.
6. NO ASSIGNMENT. Neither this Limited Guarantee nor any right or obligation
hereunder may be assigned by any party (by operation of law or otherwise) without the prior written
consent of the other party, except that, without the prior written consent of the Guaranteed Party,
this Limited Guarantee may be assigned, in whole or in part, by the Guarantor to one or more of its
Affiliates or to one or more investment funds sponsored or managed by the Guarantor or one or more
of its Affiliates; provided, that any such assignment will not release the Guarantor from
its obligations hereunder. Any attempted assignment in violation of this section shall be null and
void.
7. NOTICES. All notices, requests, claims, demands and other communications hereunder
shall be given by the means specified in the Merger Agreement (and shall be deemed given as
specified therein), as follows:
if to the Guarantor:
c/o S.A.C. Capital Advisors, L.P.
00 Xxxxxxxx Xxxxx Xxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Attention: General Counsel
Facsimile: (000) 000-0000
00 Xxxxxxxx Xxxxx Xxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Attention: General Counsel
Facsimile: (000) 000-0000
with a copy to (which alone shall not constitute notice):
Xxxxxxx Xxxxxxx & Xxxxxxxx LLP
1999 Avenue of the Stars — 00xx Xxxxx
Xxx Xxxxxxx, XX 00000
Attention: Xxxxxx Xxxxxxx
Facsimile: (000) 000-0000
1999 Avenue of the Stars — 00xx Xxxxx
Xxx Xxxxxxx, XX 00000
Attention: Xxxxxx Xxxxxxx
Facsimile: (000) 000-0000
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If to the Guaranteed Party, as provided in the Merger Agreement.
8. CONTINUING GUARANTEE. This Limited Guarantee may not be revoked or terminated and
shall remain in full force and effect and shall be binding on the Guarantor, its successors and
permitted assigns until the Obligations have been paid in full. Notwithstanding the foregoing,
this Limited Guarantee shall terminate and the Guarantor shall have no further obligations under
this Limited Guarantee as of the earliest of (i) the Closing in accordance with the terms of the
Merger Agreement, including payment of the Merger Consideration, (ii) the valid termination of the
Merger Agreement in accordance with its terms under circumstances set forth in the Merger Agreement
in which Buyer would not be obligated to pay the Buyer Termination Fee and (iii) the payment to the
Guaranteed Party by any combination of Buyer and/or the Guarantor of the full amount of the
Obligations. Notwithstanding any other term or provision of this Limited Guarantee, in the event
that the Guaranteed Party or any of its Affiliates asserts in any litigation or other proceeding
that the provisions of Section 1 hereof limiting the Guarantor’s liability to the Cap or any other
provisions of this Limited Guarantee are illegal, invalid or unenforceable in whole or in part, or
asserting any theory of liability against the Guarantor or any Non-Recourse Party with respect to
the transactions contemplated by the Merger Agreement other than liability of the Guarantor under
this Limited Guarantee (as limited by the provisions of Section 1) or under the Confidentiality
Agreement, then (x) the obligations of the Guarantor under this Limited Guarantee shall terminate
ab initio and shall thereupon be null and void, (y) if the Guarantor has previously made any
payments under this Limited Guarantee, it shall be entitled to recover such payments from the
Guaranteed Party, and (z) neither the Guarantor, nor any Non-Recourse Parties shall have any
liability to the Guaranteed Party or any of its Affiliates with respect to the Equity Commitment
Letter, the Merger Agreement or the transactions contemplated by the Merger Agreement or under this
Limited Guarantee.
9. NO RECOURSE. Notwithstanding anything that may be expressed or implied in this
Limited Guarantee or any document or instrument delivered in connection herewith, by its acceptance
of the benefits of this Limited Guarantee, the Guaranteed Party covenants, agrees and acknowledges
that no Person other than the Guarantor has any obligation hereunder and that, notwithstanding that
the Guarantor and/or certain investment managers, managers or general partners of it or its
Affiliates may be partnerships or limited liability companies, the Guaranteed Party has no right of
recovery under this Limited Guarantee, or any claim based on such obligations against, and no
personal liability shall attach to, the former, current or future equity holders, controlling
persons, directors, officers, employees, agents, Affiliates (other than the Guarantor or any
assignee under Section 6) including, for the avoidance of doubt, S.A.C. Private Capital Group, LLC,
members, managers or general or limited partners of the Guarantor or Buyer, or any former, current
or future equity holder, controlling person, director, officer, employee, general or limited
partner, member, manager, Affiliate (other than the Guarantor or any assignee under Section 6) or
agent of any of the foregoing (collectively, each of the foregoing but not including the Buyer, the
Transitory Subsidiary or their respective assignees themselves, a “Non-Recourse Party”),
through Buyer or otherwise, whether by or through
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attempted piercing of the corporate veil, by or
through a claim by or on behalf of Buyer against any Non-Recourse Party (including a claim to
enforce the Equity Commitment Letter), by the enforcement of any assessment or by any legal or
equitable proceeding, by virtue of any statute, regulation or applicable law, or otherwise, and the
Guaranteed Party further covenants, agrees and acknowledges that the only rights of recovery that
the Guaranteed Party has in respect of the Equity Commitment Letter, the Merger Agreement or the
transactions contemplated thereby against any Non-Recourse Party are its rights (i) to recover from
the Guarantor (but not any Non-Recourse Party) under and to the extent expressly provided in this
Limited Guarantee and subject to the Cap and the other limitations described herein and (ii) under
the Confidentiality Agreement. The Guaranteed Party acknowledges and agrees that Buyer has no
assets other than certain contract rights and cash in a de minimis amount and that no additional
funds are expected to be contributed to Buyer unless and until the Closing occurs. Other than with
respect to a claim brought under the Confidentiality Agreement, recourse against the Guarantor
under and pursuant to the terms of this Limited Guarantee shall be the sole and exclusive remedy of
the Guaranteed Party and all of its Affiliates against the Guarantor and the Non-Recourse Parties
in respect of any liabilities or obligations arising under, or in connection with, the Equity
Commitment Letter, the Merger Agreement or the transactions contemplated thereby, including by
piercing of the corporate veil or a claim by or on behalf of Buyer. The Guaranteed Party hereby
covenants and agrees that it shall not institute, and it shall cause its Affiliates not to
institute, any proceeding or bring any other claim arising under, or in connection with, the Equity
Commitment Letter, the Merger Agreement or the transactions contemplated thereby against the
Guarantor or any Non-Recourse Party except for claims against the Guarantor under this Limited
Guarantee and claims under the Confidentiality Agreement. Nothing set forth in this Limited
Guarantee shall confer or give or shall be construed to confer or give to any Person other than the
Guaranteed Party (including any Person acting in a representative capacity) any rights or remedies
against any Person including the Guarantor, except as expressly set forth herein.
10. GOVERNING LAW; JURISDICTION. This Limited Guarantee shall be governed by and
construed in accordance with the internal laws of the State of Delaware without giving effect to
any choice or conflict of law provision or rule (whether of the State of Delaware or any other
jurisdiction) that would cause the application of laws of any jurisdictions other than those of the
State of Delaware. Each of the parties to this Limited Guarantee (a) consents to submit itself to
the personal jurisdiction of the Court of Chancery of the State of Delaware in any action or
proceeding arising out of or relating to this Limited Guarantee, (b) agrees that all claims in
respect of such action or proceeding may be heard and determined only in such court, (c) agrees
that it shall not attempt to deny or defeat such personal jurisdiction by motion or other request
for leave from such court, (d) agrees not to bring any action or proceeding arising out of or
relating to this Limited Guarantee in any other court, and (e) agrees that service of process upon
such party in any action or proceeding shall be effective under any manner permitted under the laws
of the State of Delaware. Each of the parties hereto waives any defense of inconvenient forum to
the maintenance of any such action or proceeding so brought and waives any bond, surety or other
security that might be required of any other party with respect thereto.
11. WAIVER OF JURY TRIAL. EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY
WHICH MAY ARISE UNDER THIS LIMITED
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GUARANTEE IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES,
AND THEREFORE EACH SUCH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT SUCH PARTY
MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF OR
RELATING TO THIS LIMITED GUARANTEE. EACH PARTY CERTIFIES AND ACKNOWLEDGES THAT (I) NO
REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT
SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER, (II)
EACH PARTY UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF THIS WAIVER, (III) EACH PARTY MAKES
THIS WAIVER VOLUNTARILY, AND (IV) EACH PARTY HAS BEEN INDUCED TO ENTER INTO THIS LIMITED GUARANTEE
BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS EXPRESSED ABOVE.
12. COUNTERPARTS. This Limited Guarantee may be executed in any number of
counterparts (including by facsimile and via email by .pdf delivery), each such counterpart when
executed being deemed to be an original instrument, and all such counterparts shall together
constitute one and the same agreement.
13. NO THIRD PARTY BENEFICIARIES. Except as provided in Section 9, the parties hereby
agree that their respective representations, warranties and covenants set forth herein are solely
for the benefit of the other party hereto and its successors and permitted assigns, in accordance
with and subject to the terms of this Limited Guarantee, and this Limited Guarantee is not intended
to, and does not, confer upon any Person other than the parties hereto and their respective
successors and permitted assigns any rights or remedies hereunder, including the right to rely upon
the representations and warranties set forth herein.
14. CONFIDENTIALITY. This Limited Guarantee shall be treated as confidential and is
being provided to the Guaranteed Party solely in connection with the Merger. This Limited
Guarantee may not be used, circulated, quoted or otherwise referred to in any document by the
Guaranteed Party or its Affiliates except with the prior written consent of the Guarantor in each
instance; provided that no such written consent is required for any disclosure of the
existence of this Limited Guarantee to the legal, financial and accounting advisors to the
Guaranteed Party, or to the extent required by applicable law, by the applicable rules of any
national securities exchange, in connection with any SEC filing relating to the Merger or in
connection with any litigation relating to the Merger, the Merger Agreement and the transactions
contemplated thereby and hereby.
15. MISCELLANEOUS.
(a) This Limited Guarantee contains the entire agreement between the parties relative
to the subject matter hereof and supersedes all prior agreements and undertakings between
the parties with respect to the subject matter hereof. No amendment, modification or waiver
of any provision hereof shall be enforceable unless approved by the Guaranteed Party and the
Guarantor in writing.
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(b) Any term or provision hereof that is prohibited or unenforceable in any situation
in the agreed-upon jurisdiction shall be ineffective solely to the extent of such
prohibition or unenforceability without invalidating the remaining provisions hereof;
provided, however, that this Limited Guarantee may not be enforced without
giving effect to the limitation of the amount payable hereunder to the Cap provided in
Section 1 hereof and the provisions of Sections 8 and 9 and this Section 15(b).
(c) When a reference is made in this Limited Guarantee to a Section, such reference
shall be to a Section of this Limited Guarantee unless otherwise indicated. The headings
contained in this Limited Guarantee are for reference purposes only and shall not affect in
any way the meaning or interpretation of this Limited Guarantee. Whenever the words
“include,” “includes” or “including” are used in this Limited Guarantee, they shall be
deemed to be followed by the words “without limitation”. The words “hereof,” “herein” and
“hereunder” and words of similar import when used in this Limited Guarantee shall refer to
this Limited Guarantee as a whole and not to any particular provision of this Limited
Guarantee. The definitions contained in this Limited Guarantee are applicable to the
singular as well as the plural forms of such terms and to the masculine as well as to the
feminine and neuter genders of such term. References to a “person” will be interpreted
broadly to include, without limitation, any individual, corporation, company, group,
partnership, limited liability company, other entity or any governmental representative or
authority, as well as such person’s permitted successors and assigns.
(d) All parties acknowledge that each party and its counsel have reviewed this Limited
Guarantee and that any rule of construction to the effect that any ambiguities are to be
resolved against the drafting party shall not be employed in the interpretation of this
Limited Guarantee.
[Remainder of page intentionally left blank]
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IN WITNESS WHEREOF, the Guarantor has caused this Limited Guarantee to be duly executed
and delivered as of the date first written above.
| GUARANTOR: S.A.C. CAPITAL MANAGEMENT, LLC |
||||
| By: | /s/ Xxxxx Xxxxxxxx | |||
| Name: | Xxxxx Xxxxxxxx | |||
| Title: | Authorized Signatory | |||
[Signature Page to Limited Guarantee]
IN WITNESS WHEREOF, the Guaranteed Party has caused this Limited Guarantee to be duly
executed and delivered as of the date first written above.
GUARANTEED PARTY: AIRVANA, INC. |
||||
| By: | /s/ Xxxxxxx X. Xxxxxx | |||
| Name: | Xxxxxxx X. Xxxxxx | |||
| Title: | President and CEO | |||
[Signature Page to Limited Guarantee]
