Exhibit 2.2
SUPPORT AGREEMENT
December 19, 2001
US Unwired Inc.
000 Xxxxxxxxx Xxxxx
Xxxx Xxxxxxx, Xxxxxxxxx 00000
Ladies and Gentlemen:
For the purpose of inducing US Unwired Inc., a Louisiana corporation
("USU"), to enter into an Agreement and Plan of Merger (the "Merger Agreement")
by and among USU, Northeast Unwired Inc., a Delaware corporation and
wholly-owned subsidiary of USU ("Merger Sub"), and IWO Holdings, Inc., a
Delaware corporation ("IWO"), pursuant to which Merger Sub will merge with and
into IWO (the "Merger") and IWO's stockholders, subject to the terms of the
Merger Agreement, will receive shares of USU capital stock in exchange for
their shares of IWO capital stock, the undersigned stockholder of IWO (the
"Stockholder") confirms its agreement with you as follows:
1. The Stockholder represents, warrants and agrees that Schedule 1 annexed
hereto sets forth the shares of capital stock of IWO of which the
Stockholder or its affiliates (as defined under the Securities Exchange
Act of 1934, as amended (the "Exchange Act")) is the record or
beneficial owner (as defined in Rule 13d-3 under the Exchange Act) (such
shares herein referred to as the "Shares") and the Stockholder and its
affiliates are the lawful owners of the Shares, with sole and full power
to vote or direct the voting of the Shares for and on behalf of all
beneficial owners of the Shares with no limitations, qualifications or
restrictions on such power, other than those limitations, qualifications
or restrictions created by or arising pursuant to this Agreement or as
set forth in the Amended and Restated Stockholders Agreement dated as of
December 4, 2000 (the "Stockholders Agreement") by and among IWO and
certain of its stockholders; and except as set forth in Schedule 1 or
pursuant to the Stockholders Agreement neither the Stockholder nor any
of its affiliates owns or holds any rights to acquire any additional
shares of capital stock of IWO (other than pursuant to employee stock
options or warrants outstanding as of the date hereof) or any interest
therein or any voting rights with respect to any additional shares of
capital stock of IWO.
2. Except as set forth in the Stockholders Agreement, the Shares are owned
free and clear of any rights of first refusal, co-sale rights, liens,
rights to purchase or acquire, charges or other encumbrances and any
voting agreements or restrictions with respect to voting, other than any
of the foregoing created by or arising out of this Agreement.
3. The Stockholder has the legal capacity and full power and authority to
enter into and carry out the terms of this letter agreement and to
perform its obligations hereunder. This letter agreement has been duly
and validly authorized, executed and delivered by the Stockholder and
constitutes a valid and binding agreement of the Stockholder,
enforceable against the Stockholder in accordance with its terms.
4. The execution and delivery of this letter agreement by the Stockholder
do not, and the performance of this letter agreement by the Stockholder
will not, (i) conflict with or violate any governing instrument of the
Stockholder if it is not a natural person, (ii) conflict with or violate
any law applicable to the Stockholder or by which the Stockholder or any
of its properties or assets is bound or affected, or (iii) require any
consent, approval or notice under any law applicable to the Stockholder
or by which any of its properties or assets is bound or affected.
5. The Stockholder agrees that it will not, and will not permit any of its
affiliates to, directly or indirectly (including, without limitation,
through the disposition or transfer of any equity interest in another
person) (a) transfer, assign, sell, grant any option with respect to,
exchange, pledge or otherwise
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dispose of or encumber (collectively, "Transfer"), or enter into any
agreement, arrangement or understanding with respect to a Transfer, any
Shares or any interest therein or securities convertible thereinto or
any voting rights with respect thereto other than (i) pursuant to the
Merger, (ii) to its affiliates who execute a letter agreement
substantially in the form of this letter agreement or (iii) with USU's
prior written consent, (b) grant any proxies, other than to USU or
pursuant to this letter agreement, or enter into any voting trust or
other agreement, arrangement or understanding with respect to the voting
of any Shares.
6. The Stockholder agrees, and will cause its affiliates, to cooperate
fully with USU in connection with the Merger Agreement and the
transactions contemplated thereby. The Stockholder agrees that, during
the term of this letter agreement, it will not, and will not permit any
of its affiliates to, directly or indirectly (including through its
directors, officers, employees or other representatives) solicit,
initiate, encourage or facilitate, or furnish or disclose non-public
information in furtherance of, any inquiries or the making of any
proposal with respect to any recapitalization, merger, consolidation or
other business combination involving IWO, or acquisition of any capital
stock (other than upon exercise of IWO Options or IWO Warrants (each as
defined in the Merger Agreement) which are outstanding as of the date
hereof) or any material portion of the assets (except for acquisition of
assets in the ordinary course of business consistent with past practice)
of IWO, or any combination of the foregoing other than as permitted by
the Merger Agreement (a "Competing Transaction"), or negotiate, explore
or otherwise engage in discussions with any person (other than USU,
Merger Sub or their respective directors, officers, employees, agents
and representatives) with respect to any Competing Transaction or enter
into any agreement, arrangement or understanding with respect to any
Competing Transaction or agree to otherwise assist in the effectuation
of any Competing Transaction; provided, however, that nothing herein
shall prevent the Stockholder from taking any action, after having
notified USU thereof, or omitting to take any action solely as a member
of the Board of Directors of IWO required so as not to violate such
Stockholder's fiduciary obligations as a director of IWO after
consultation with outside counsel.
7. The Stockholder agrees that at any meeting of the stockholders of IWO
called to consider and vote to approve the Merger Agreement and/or the
transactions contemplated thereby or any Competing Transaction, and at
every adjournment or postponement thereof, or in connection with any
written consent of stockholders of IWO in lieu of such a meeting, all of
the capital stock of IWO, including the Shares (to the extent of its
voting rights), beneficially owned by the Stockholder or its affiliates,
or over which the Stockholder or any of its affiliates has voting power
or control, directly or indirectly, will be voted (a) in favor of the
adoption of the Merger Agreement and the approval of the Merger and each
of the other transactions contemplated by the Merger Agreement
(regardless of whether IWO recommends to its stockholders the approval
and adoption of the Merger Agreement and the Merger), (b) against any
Competing Transaction, and (c) against any action that is intended, or
could reasonably be expected to, impede, frustrate, interfere with,
impair, delay, adversely affect or prevent consummation of the Merger or
any of the other transactions contemplated by the Merger Agreement.
8. The Stockholder agrees that, at or prior to the Effective Time, the
Stockholder will execute and deliver to U SU an agreement in form and
substance reasonably satisfactory to USU either (i) terminating at the
Effective Time the Stockholders Agreement or (ii) approving an amendment
to the Stockholders Agreement, effective as of the Effective Time, that
removes certain of the rights of the stockholders of IWO that are
parties to the Stockholders Agreement and certain of the obligations of
IWO under the Stockholders Agreement.
9. The Stockholder hereby appoints Xxxxxx X. Xxxxxxx and Xxxxxx X. Xxxxx,
and each of them, as the proxy of the Stockholder, each with full power
of substitution, to vote all of the capital stock of IWO, including the
Shares, over which the Stockholder has voting power or control at any
meeting of stockholders of IWO called to consider and vote to approve
the Merger Agreement and/or the transactions contemplated thereby or any
Competing Transaction, and at any adjournment or
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postponement thereof, and to execute any written consent of stockholders
of IWO in lieu of such meeting, with the same force and effect as such
vote would have if the undersigned were personally present at such
meeting or signed such consent, in favor of approval of the Merger
Agreement and/or any transactions contemplated thereby and against any
Competing Transaction. This proxy, being coupled with an interest, is
irrevocable.
10. The Stockholder agrees that any shares of capital stock of IWO that the
Stockholder or any of its affiliates purchases or with respect to which
the Stockholder or any of its affiliates otherwise acquires beneficial
ownership after the date of this letter agreement, including, without
limitation, shares issued upon the conversion, exercise or exchange, as
the case may be, of securities held by the Stockholder or any of its
affiliates which are convertible into, or exercisable or exchangeable
for, shares of capital stock of IWO, shall be subject to the terms and
conditions of this Agreement to the same extent as if they constituted
the Shares.
11. The Stockholder hereby gives any consents, waivers or approvals that are
required for the consummation of the Merger or the transactions
contemplated by the Merger Agreement under the terms of any agreement to
which the Stockholder is a party.
12. The Stockholder is an "accredited investor" as defined in Rule 501 of
Regulation D promulgated pursuant to the Securities Act of 1933, as
amended. The Stockholder has had the opportunity to review each of the
USU SEC Reports (as defined in the Merger Agreement) and is familiar
with the business and financial condition, properties, operations and
prospects of USU. The Stockholder is familiar with the terms and
conditions of the Merger and the other transactions contemplated by the
Merger Agreement and has had an opportunity to review the Merger
Agreement.
13. This Agreement shall terminate and shall have no further force or effect
as of the earlier of (i) the date on which the Merger Agreement is
validly terminated and (ii) the Effective Time (as defined in the Merger
Agreement).
14. If any term or other provision of this letter agreement is invalid,
illegal or incapable of being enforced by any rule of law or public
policy, all other conditions and provisions of this letter agreement
shall nevertheless remain in full force and effect.
15. This letter agreement constitutes the entire agreement of the parties,
and supersedes all prior agreements and undertakings, both written and
oral, among the parties or between any of them, with respect to the
subject matter hereof.
16. This letter agreement shall not be assigned by any party hereto by
operation of law or otherwise. This letter agreement shall be binding
upon and inure solely to the benefit of each party hereto and their
respective successors and permitted assigns, and nothing in this letter
agreement, express or implied is intended to or shall confer upon any
other person any right, benefit or remedy of any nature whatsoever under
or by reason of this letter agreement.
17. The Stockholder hereby acknowledges and agrees that its failure to
perform its agreements and covenants hereunder will cause irreparable
injury to USU for which damages, even if available, will not be an
adequate remedy. Accordingly, the Stockholder hereby consents to the
issuance of injunctive relief (including a temporary restraining order)
to compel performance of its obligations and to the granting by any
court of the remedy of specific performance of its obligations hereunder.
18. This letter agreement shall be governed by, and construed in accordance
with, the laws of the State of Delaware, regardless of the laws that
might otherwise govern under applicable principles of conflicts of law.
Each of the parties hereto irrevocably submits to the exclusive
jurisdiction of the state courts of Delaware and to the jurisdiction of
the United States District Court for the District of Delaware, for the
purpose of any action or proceeding arising out of or relating to this
letter agreement and each of the
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parties hereto irrevocably agrees that all claims in respect to such
action or proceeding may be heard and determined exclusively in any
Delaware state or federal court sitting in the City of Wilmington,
Delaware. Each of the parties hereto agrees that a final judgment in any
action or proceeding shall be conclusive and may be enforced in other
jurisdictions by suit on the judgment or in any other manner provided by
law. Each of the parties hereto irrevocably consents to the service of
any summons and complaint and any other process in any other action or
proceeding relating to this Agreement, on behalf of itself or its
property, by the personal delivery of copies of such process to such
party. Nothing in this paragraph 18 shall affect the right of any party
hereto to service of legal process in any other manner permitted by law.
19. EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY ARISE
UNDER THIS LETTER AGREEMENT 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 LETTER AGREEMENT.
IN WITNESS WHEREOF, the undersigned has executed this Agreement as of the
19th day of December, 2001.
[NAME OF ENTITY]
By: _________________________________
Name: _______________________________
Its: ________________________________
Confirmed on the date first written above:
US UNWIRED INC.
By: ___________________________________________________________________________
Name: _________________________________________________________________________
Title: ________________________________________________________________________
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SCHEDULE 1
SHARES OWNED OF RECORD:
______ shares of IWO Class A Common Stock
______ shares of IWO Class B Common Stock
______ shares of IWO Class C Common Stock
______ shares of IWO Class D Common Stock
______ shares of IWO Class E Common Stock
______ shares of IWO Ordinary Common Stock
SHARES OWNED BENEFICIALLY:
______ shares of IWO Class A Common Stock
______ shares of IWO Class B Common Stock
______ shares of IWO Class C Common Stock
______ shares of IWO Class D Common Stock
______ shares of IWO Class E Common Stock
______ shares of IWO Ordinary Common Stock
Options to purchase ______ shares of IWO Class B Common Stock
Warrants to purchase ______ shares of IWO Class B Common Stock
Warrants to purchase ______ shares of IWO Class C Common Stock
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