EXHIBIT 4.1
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Execution Copy
STOCKHOLDERS AGREEMENT
THIS STOCKHOLDERS AGREEMENT, dated as of August 29, 2005, is entered
into among SPRINT NEXTEL CORPORATION, a corporation organized under the laws of
the State of Kansas ("SPRINT"), and the persons who are stockholders of IWO
Holdings, Inc., a Delaware corporation (the "COMPANY"), who are signatories
hereto (each, a "STOCKHOLDER," and together, the "STOCKHOLDERS").
W I T N E S S E T H:
WHEREAS, Sprint and the Company are parties to an Agreement and Plan of
Merger, dated as of the date hereof (the "MERGER AGREEMENT"), whereby a wholly
owned subsidiary of Sprint will merge with and into the Company (the "MERGER"),
with the result that the Company will become a wholly owned subsidiary of Sprint
(capitalized terms used herein but not otherwise defined shall have the meanings
set forth in the Merger Agreement);
WHEREAS, each Stockholder is, except as otherwise noted on SCHEDULE A
hereto, the sole beneficial owner (and holds sole beneficial voting power) of
the shares of common stock of the Company, par value $0.01 per share ("COMMON
STOCK"), set forth opposite such Stockholder's name on SCHEDULE B hereto (all of
the shares owned by the Stockholders as of the date hereof being hereinafter
referred to as the "EXISTING SHARES" and, together with any shares of Common
Stock or other shares of capital stock of the Company acquired by the
Stockholders after the date hereof, as the "SHARES"); and
WHEREAS, as a condition and inducement to Sprint's willingness to enter
into the Merger Agreement, each Stockholder has agreed to vote all of its Shares
pursuant to the terms and conditions of this Agreement and to certain other
matters set forth herein.
NOW, THEREFORE, in consideration of the foregoing and in consideration
of the mutual covenants and agreements contained herein and intending to be
legally bound, the parties agree as follows:
1. VOTING OF SHARES. During the Proxy Term (as defined below),
except for the Shares covered by the Xxxxxxx Proxy (as defined in SCHEDULE A),
each Stockholder hereby agrees that at any annual, special or other meeting of
the stockholders of the Company, and at any adjournment or adjournments thereof,
and in connection with any action of the stockholders of the Company taken by
written consent, such Stockholder will:
(a) appear in person or by proxy at each such meeting or
otherwise cause the Shares beneficially owned by such Stockholder to be counted
as present at such meeting for purposes of calculating a quorum; and
(b) unless Sprint votes such Stockholder's Shares
directly pursuant to the proxy granted in Section 2 hereof, (i) vote (or cause
to be voted) its Shares, in person or by proxy, approving the Merger Agreement,
the Merger and any other action of the stockholders of the Company reasonably
requested by Sprint in furtherance thereof; and (ii) vote (or cause to be
voted) its Shares, in person or by proxy, against, and not deliver any written
consent with respect to its Shares in favor of, any other Acquisition Proposal
submitted for approval to the stockholders of the Company, unless Sprint
instructs such Stockholder in writing to vote in favor of, or deliver a consent
with respect to, such other Acquisition Proposal.
2. PROXY.
(a) Except with respect to the Shares covered by the
Xxxxxxx Proxy, each Stockholder by this Agreement does hereby constitute and
appoint Sprint, or any nominee of Sprint, with full power of substitution,
during and for the Proxy Term, as such Stockholder's true and lawful attorney
and irrevocable proxy, for and in such Stockholder's name, place and stead, to
vote the Shares of such Stockholder as such Stockholder's proxy, at every
meeting of the Company's stockholders or any adjournment thereof, or, as
applicable, to instruct and direct any holder of record of such Shares to vote
such Shares or execute its proxy with respect to such Shares at every meeting of
the Company's stockholders or any adjournment thereof, approving the Merger
Agreement, the Merger and any other action of the Company's stockholders
reasonably requested by Sprint in furtherance thereof; and against any other
Acquisition Proposal submitted for approval to the Company's stockholders unless
Sprint determines to vote or consent in favor of such other Acquisition
Proposal. Each Stockholder intends this proxy to be irrevocable and coupled with
an interest during the Proxy Term and hereby revokes any proxy previously
granted by such Stockholder with respect to its Shares (other than the Xxxxxxx
Proxy). Each Stockholder acknowledges that, pursuant to the authority hereby
granted under the irrevocable proxy, Sprint may vote such Stockholder's Shares
(other than Shares covered by the Xxxxxxx Proxy) in furtherance of its own
interests, and Sprint is not acting as a fiduciary for such Stockholder.
(b) For purposes of this Agreement, "PROXY TERM" means
the period from the execution of this Agreement until the date that is 60 days
after the earlier of (i) termination of the Merger Agreement and (ii) the date
on which the Company Stockholders vote either in favor or against adoption of
the Merger Agreement and approval of the Merger and the other transactions
contemplated thereby.
(c) Each Stockholder agrees that the irrevocable proxy
set forth in this Section 2 hereof shall not be terminated by any act of such
Stockholder or by operation of law, other than upon expiration of the Proxy
Term.
3. GRANT OF OPTION.
(a) OPTION. Upon the terms and subject to the conditions
of this Agreement, each Stockholder hereby grants to Sprint or Sprint's
designated subsidiary an irrevocable option (the "OPTION") to purchase such
Stockholder's Shares at any time from and after the date hereof and on or before
the expiration of the Proxy Term. Upon exercise of the Option and purchase of
such Shares, Sprint shall not assume any liabilities or obligations (if any) of
Stockholder related to or in connection with such Shares and arising prior to
the Option Closing Date (as defined below).
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(b) OPTION PRICE. The purchase price payable by Sprint or
its designee at the Option Closing (as defined below) for the Shares shall be an
amount equal to $42.50 per Share, as adjusted for any combination,
recapitalization, consolidation, stock split or stock distribution (the "OPTION
PRICE").
(c) EXERCISE.
(i) Sprint or its designee shall be entitled to
exercise the Option by giving written notice to each
Stockholder. Such notice shall specify (A) a date not earlier
than one business day from the date such notice is delivered
to such Stockholder, and in no event earlier than three
business days after the date upon which (1) the waiting period
under the HSR Act, if applicable, with respect to the purchase
and sale of the Shares has expired or been terminated without
any action being taken or threatened to enjoin or prohibit
such purchase and sale and (2) any and all other approvals
required to consummate the exercise of the Option and (B) a
place for closing of the exercise of the Option (the "OPTION
CLOSING"). Upon delivery of notice exercising the Option, the
Option shall be deemed to have been exercised by Sprint or its
designee irrespective of the actual date of the Option Closing
(the actual date of the Option Closing is referred to as the
"OPTION CLOSING DATE"). At the Option Closing, Sprint or its
designee will deliver to Stockholder the Option Price with
respect to the Shares, by wire transfer of immediately
available funds to an account designated in writing by such
Stockholder prior to the Option Closing Date.
(ii) Upon payment of the Option Price as provided
in Section 3(c)(i) hereof, each Stockholder shall deliver to
Sprint or its designee at the Option Closing, (A) the
certificates representing such Stockholder's Shares free and
clear of all Liens (as defined below) duly endorsed in blank
for transfer, or accompanied by duly executed stock powers in
blank, in each case with signatures guaranteed by a national
bank or trust company or a member firm of the New York Stock
Exchange, Inc. and (B) all such other agreements,
endorsements, assignments and other instruments as are
necessary or desirable, to vest in Sprint or its designee good
and marketable title to such Shares or to evidence of record
the sale and assignment of such Shares to Sprint or its
designee.
(d) HSR FILING. Promptly following the exercise of the
Option by Sprint (or such earlier date as Sprint may specify), Sprint and the
Stockholders will make all filings with, and give all notices to, any
Governmental Entities required of Sprint pursuant to the HSR Act in connection
with consummating the transactions contemplated by this Section 3. Sprint and
the Stockholders will use all commercially reasonable efforts to obtain early
termination of all applicable waiting periods under the HSR Act.
4. STOP TRANSFER INSTRUCTION; LEGEND.
(a) Promptly following the date hereof, the Stockholders
shall deliver written instructions to the Company and to the Company's transfer
agent stating that the Shares may not
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be Transferred (as defined below) in any manner during the term of this
Agreement without the prior written consent of Sprint or except as provided in
this Agreement.
(b) Promptly following the date hereof, each Stockholder
shall cause a legend to be placed on the certificates (to the extent the Shares
are certificated) representing its Existing Shares as set forth below:
"The Securities represented by this certificate are subject to
restrictions on transfer and may not be sold, transferred, pledged,
encumbered, assigned, distributed, hypothecated, tendered or otherwise
disposed of, including by way of merger, consolidation, share exchange
or similar transaction, whether voluntarily or by operation of law,
except in accordance with and subject to the terms and conditions of
the Stockholders Agreement, dated as of August 29, 2005, between the
registered holder hereof and Sprint Nextel Corporation."
(c) The parties hereto agree that the legend set forth
above shall be removed only upon delivery to the Company's transfer agent of
written notice signed by Sprint (which notice shall not be unreasonably withheld
or delayed) after expiration of the Proxy Term that the restrictions set forth
in the legend above are of no further force and effect.
5. ACKNOWLEDGMENT OF RELIANCE. Each Stockholder understands and
acknowledges that Sprint is pursuing the Merger (and incurring costs and
expenses and foregoing other opportunities) in reliance upon such Stockholder's
execution and delivery of this Agreement.
6. NO INCONSISTENT AGREEMENTS. Each Stockholder hereby covenants
and agrees that, except for this Agreement and the Xxxxxxx Proxy, such
Stockholder (a) has not entered, and such Stockholder shall not enter at any
time while this Agreement remains in effect, into any voting agreement, voting
trust or option agreement with respect to the Shares beneficially owned by such
Stockholder and (b) has not granted, and such Stockholder shall not grant at any
time while this Agreement remains in effect, a proxy, a consent or power of
attorney with respect to the Shares beneficially owned by such Stockholder,
other than the proxy granted pursuant to Section 2 hereof and the Xxxxxxx Proxy.
7. REPRESENTATIONS AND WARRANTIES OF EACH STOCKHOLDER. Each
Stockholder hereby represents and warrants, severally as to such Stockholder and
not jointly, to Sprint as follows:
(a) AUTHORIZATION; VALIDITY OF AGREEMENT; NECESSARY
ACTION. Such Stockholder (i) is duly organized, validly existing and in good
standing under the Laws of the jurisdiction of its organization and (ii) has the
requisite power and authority to execute and deliver this Agreement, and to
perform such Stockholder's obligations hereunder and to consummate the
transactions contemplated hereby. No other actions or proceedings on the part of
such Stockholder are necessary to authorize the execution and delivery of this
Agreement and the consummation of the transactions contemplated hereby. This
Agreement has been duly executed and delivered by such Stockholder and, assuming
this Agreement constitutes a valid and binding obligation of Sprint and the
other Stockholders, constitutes a valid and binding obligation of such
Stockholder, enforceable against such Stockholder in accordance with its terms.
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(b) OWNERSHIP. As of the date hereof, (1) such
Stockholder beneficially owns the Existing Shares listed opposite such
Stockholder's name on SCHEDULE B hereto, (ii) the number of such Existing Shares
that are subject to the Xxxxxxx Proxy are listed opposite such Stockholder's
name on SCHEDULE B hereto and (iii) the Existing Shares (as set forth opposite
such Stockholder's name on SCHEDULE B) constitute all of the shares of Common
Stock owned by such Stockholder. Except as otherwise noted on SCHEDULE A hereto,
there are no existing agreements or arrangements between such Stockholder or any
of its affiliates (other than the Company), on one hand, or the Company or any
of the Subsidiaries, on the other hand, relating to the Shares beneficially
owned by such Stockholder or any of its affiliates (other than the Company).
Such Stockholder, except as otherwise noted on SCHEDULE A hereto, has and will
have at all times through the term of this Agreement sole voting power, sole
power of disposition, sole power to issue instructions with respect to the
matters set forth in this Agreement, and sole power to agree to all of the
matters set forth in this Agreement, in each case with respect to all of the
Existing Shares of such Stockholder on or prior to the Effective Time, with no
limitations, qualifications or restrictions on such rights, subject to
applicable federal securities laws and the terms of this Agreement. Except for
the Xxxxxxx Proxy, such Stockholder has and, until consummation of the Merger,
will have, good and marketable title to the Existing Shares of such Stockholder,
free and clear of any security interests, liens, claims, pledges, options,
rights of first refusal, agreements, limitations on voting rights, charges and
encumbrances of any nature whatsoever ("LIENS").
(c) NO VIOLATION. The execution and delivery of this
Agreement by such Stockholder does not, and the performance by such Stockholder
of its obligations under this Agreement will not, (i) conflict with or violate
any law, ordinance or regulation of any Governmental Entity applicable to such
Stockholder or by which any of its assets or properties is bound or (ii)
conflict with, result in any breach of or constitute a default (or an event that
with notice or lapse of time or both would become a default) under, or give to
others any rights of termination, amendment, acceleration or cancellation of, or
require payment under, or require redemption or repurchase of or otherwise
require the purchase or sale of, or result in the creation of any Lien on, the
Existing Shares of such Stockholder pursuant to, any note, bond, mortgage,
indenture, contract, agreement, lease, license, permit, franchise or other
instrument or obligation to which such Stockholder is a party or by which such
Stockholder or any of its Existing Shares is bound, except for any of the
foregoing as would not, either individually or in the aggregate, prevent or
materially delay or impair the ability of such Stockholder to perform its
obligations hereunder or to consummate the transactions contemplated hereby on a
timely basis.
(d) CONSENTS AND APPROVALS. The execution and delivery of
this Agreement by such Stockholder does not, and the performance by such
Stockholder of its obligations under this Agreement will not, require such
Stockholder to obtain any consent, approval, authorization or permit of, or to
make any filing (other than Exchange Act filings) with or notification to, any
Governmental Entity based on the Law of any applicable Governmental Entity,
except for any of the foregoing as would not, either individually or in the
aggregate, prevent or materially delay or impair the ability of such Stockholder
to perform its obligations hereunder or to consummate the transactions
contemplated hereby on a timely basis.
(e) ABSENCE OF LITIGATION. As of the date hereof, there
is no suit, action, investigation or proceeding pending or, to the knowledge of
such Stockholder, threatened against such Stockholder before or by any
Governmental Entity that would impair the ability of such
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Stockholder to perform its obligations hereunder or to consummate the
transactions contemplated hereby on a timely basis.
(f) STOCKHOLDER HAS ADEQUATE INFORMATION. Such
Stockholder is a sophisticated seller with respect to its Shares and has
adequate information concerning the business and financial condition of the
Company to make an informed decision regarding the sale of its Shares and has
independently and without reliance upon either Buyer or Sprint and based on such
information as such Stockholder has deemed appropriate, made its own analysis
and decision to enter into this Agreement. Such Stockholder acknowledges that
neither Buyer nor Sprint has made and neither makes any representation or
warranty, whether express or implied, of any kind or character except as
expressly set forth in this Agreement. Such Stockholder acknowledges that the
agreements contained herein with respect to its Shares are irrevocable, and that
such Stockholder shall have no recourse to its Shares, Sprint or Buyer, except
with respect to breaches of representations, warranties, covenants and
agreements expressly set forth in this Agreement.
(g) NO LIABILITY. Such Stockholder has no liability or
obligation related to or in connection with the Shares that would be imposed on
Sprint or Buyer as a result of this Agreement, other than the obligations to
Sprint as set forth in this Agreement.
8. REPRESENTATIONS AND WARRANTIES OF SPRINT.
(a) AUTHORIZATION; VALIDITY OF AGREEMENT; NECESSARY
ACTION. Sprint (i) is duly organized, validly existing and in good standing
under the Laws of the jurisdiction of its organization and (ii) has the
corporate power and authority to execute and deliver this Agreement and the
Merger Agreement, and to perform its obligations hereunder and thereunder and to
consummate the transactions contemplated hereby and thereby. No other actions or
proceedings on the part of Sprint are necessary to authorize the execution and
delivery of this Agreement or the Merger Agreement and the consummation of the
transactions contemplated hereby and thereby. This Agreement and the Merger
Agreement have been duly executed and delivered by Sprint and, assuming this
Agreement constitutes a valid and binding obligation of the Stockholders and the
Merger Agreement constitutes a valid and binding obligation of the Company, each
such agreement constitutes a valid and binding obligation of Sprint, enforceable
against Sprint in accordance with its terms.
(b) NO VIOLATION. Assuming the accuracy of the
representations and warranties contained in Section 3.23 of the Merger Agreement
and except as set forth in the Company Disclosure Letter or in the exceptions to
the representation and warranty contained in Section 4.4 of the Merger
Agreement, the execution and delivery of this Agreement by Sprint does not, and
the performance by Sprint of its obligations under this Agreement will not, (i)
conflict with or violate any law, ordinance or regulation of any Governmental
Entity applicable to Sprint or by which any of its assets or properties is bound
or (ii) conflict with, result in any breach of or constitute a default (or an
event that with notice or lapse of time or both would become a default) under,
or give to others any rights of termination, amendment, acceleration or
cancellation of, or require payment under, any note, bond, mortgage, indenture,
contract, agreement, lease, license, permit, franchise or other instrument or
obligation to which Sprint is a party or by which Sprint is bound, except for
any of the foregoing as would not, either
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individually or in the aggregate, prevent or materially delay or impair the
ability of Sprint to perform its obligations hereunder or to consummate the
transactions contemplated hereby on a timely basis.
(c) CONSENTS AND APPROVALS. Assuming the accuracy of the
representations and warranties contained in Section 3.23 of the Merger Agreement
and except as set forth in the Company Disclosure Letter or in the exceptions to
the representation and warranty contained in Section 4.4 of the Merger
Agreement, the execution and delivery of this Agreement by Sprint does not, and
the performance by Sprint of its obligations under this Agreement will not,
require Sprint to obtain any consent, approval, authorization or permit of, or
to make any filing with or notification to, any Governmental Entity based on the
Law of any applicable Governmental Entity, except for any of the foregoing as
would not, either individually or in the aggregate, prevent or materially delay
or impair the ability of Sprint to perform its obligations hereunder or to
consummate the transactions contemplated hereby on a timely basis.
9. COVENANTS OF THE STOCKHOLDERS. Each Stockholder hereby
covenants and agrees that:
(a) Except as expressly contemplated hereby, such
Stockholder shall not sell, transfer, pledge, encumber, assign, distribute,
hypothecate, tender or otherwise dispose of, including by way of merger,
consolidation, share exchange or similar transaction, whether voluntarily or by
operation of law (collectively, a "TRANSFER"), or enforce or permit the
execution of the provisions of any redemption, share purchase or sale,
recapitalization or other agreement with the Company or any other person or
enter into any contract, option or other arrangement or understanding with
respect to any Transfer (whether by actual disposition or effective economic
disposition due to hedging, cash settlement or otherwise) of, any of the
Existing Shares beneficially owned by such Stockholder, any Shares acquired by
such Stockholder after the date hereof, any securities exercisable or
exchangeable for or convertible into shares of Common Stock, any other capital
stock of the Company or any interest in any of the foregoing with any person;
PROVIDED, HOWEVER, after expiration of the Proxy Term, such Stockholder may
Transfer any of its Shares to any person so long as the transferee agrees, in
form and substance satisfactory to Sprint, to be bound by and subject to the
terms and conditions of this Agreement with respect to such Shares owned by such
transferee, including the terms and conditions of Section 10 hereto.
(b) In case of a stock dividend or distribution, or any
change in Common Stock by reason of any stock dividend or distribution,
split-up, recapitalization, combination, exchange of shares or the like, the
term "Shares" shall be deemed to refer to and include the Shares as well as all
such stock dividends and distributions and any securities into which or for
which any or all of the Shares may be changed or exchanged or that are received
in such transaction.
(c) Until the expiration of the Proxy Term, such
Stockholder shall notify Sprint promptly (and in any event within one business
day) in writing of the number of any additional Shares acquired by such
Stockholder, if any, after the date hereof.
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(d) Such Stockholder will not take any action or permit
any action to be taken that would have the effect of preventing, disabling or
delaying such Stockholder from performing its obligations under this Agreement.
Without limiting the foregoing, such Stockholder agrees that, until the
expiration of the Proxy Term, (i) subject to the provisions of Section 11(r),
(A) neither such Stockholder nor any of such Stockholder's representatives or
agents will, indirectly or directly, solicit, encourage or initiate the
submission of proposals or offers from, or provide any confidential information
to, or participate in discussions or negotiations or enter into any agreement or
understanding with, any person (other than Sprint and its representatives)
concerning the sale of any assets of the Company (other than the sale of
inventory in the ordinary course of business) or the sale of any shares of
capital stock of, or any merger, combination or similar transaction involving,
the Company or any of the Subsidiaries and (B) such Stockholder shall, and shall
cause such Stockholder's representatives to, immediately cease any discussions
or communications with any other person (other than Sprint and its
representatives) conducted prior hereto with respect to any of the foregoing and
(ii) such Stockholder shall not exercise or attempt to exercise any rights under
Section 262 of the DGCL with respect to the Merger.
10. RECAPTURE OF EXCESS SALE PROCEEDS.
(a) If the Merger Agreement is terminated pursuant to
Section 7.1(c), (d), (e) or (f)(ii) thereof, and the Company or any of the
Company Stockholders shall either (i) consummate an Alternative Transaction
within 12 months after such termination or (ii) consummate an Alternative
Transaction in connection with an Acquisition Agreement (other than a
non-binding letter of intent) entered into within 12 months after such
termination with any person, other than Sprint, Buyer or any subsidiary thereof,
then in each such case each Stockholder shall pay to Sprint, 75% of the Excess
Sale Proceeds received by such Stockholder (the "EXCESS SALE PROCEEDS PAYMENT").
For purposes of this Section 10(a), (i) references to 20% in the definition of
"Acquisition Proposal" will be deemed to be references to 35% and (ii) "EXCESS
SALE PROCEEDS" for such Stockholder shall mean (A) the aggregate consideration
received by such Stockholder from (1) the Transfer of any of its Shares pursuant
to such Alternative Transaction and (2) the Transfer of any of its Shares
(including any distribution of such Shares to such Stockholder's equity holders
but excluding any Transfer permitted in the PROVISO of Section 9(a) hereto)
through the date that is 18 months after termination of the Merger Agreement,
LESS (B) an amount equal to (x) the Merger Consideration MULTIPLIED BY (y) the
number of such Stockholder's Shares Transferred.
(b) If such aggregate consideration (the "ALTERNATIVE
TRANSACTION CONSIDERATION") includes property other than cash, the amount of
such aggregate consideration shall be deemed to be the sum of (i) the fixed cash
amount, if any, included in the Alternative Transaction Consideration and (ii)
the fair market value per Share of such other property. If such other property
includes securities listed on a national securities exchange or traded in the
over-the-counter market, the fair market value per Share of such securities
shall be deemed to be equal to the average of the closing prices (or the average
of the closing bid and asked prices if closing prices are unavailable) for such
securities on their principal trading market on the 10 trading days ending two
days prior to the closing date of such Alternative Transaction, as the case may
be. If such Alternative Transaction Consideration includes property other than
cash or securities listed on a national securities exchange or traded in the
over-the-counter market and agreement on the
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value per Share of such other property cannot be reached between Sprint and the
Stockholders, the Alternative Transaction Consideration shall be deemed to be
the amount per Share of any cash included in the Alternative Transaction
Consideration, PLUS the fair market value per Share of such other property as
determined by a nationally recognized investment banking firm agreed to by the
parties or, in the absence of such agreement, a nationally recognized investment
banking firm agreed to by an investment banking firm selected by Sprint and an
investment banking firm selected by the Stockholders. The Stockholders and
Sprint shall use their reasonable best efforts to cause any determination of the
fair market value per Share of such other property to be made within two
business days after the closing date of such Alternative Transaction.
(c) Each Stockholder shall pay the Excess Sale Proceeds
Payment to Sprint in cash within three business days after the closing date of
such Alternative Transaction. Payment shall be made by wire transfer of
immediately available funds to a bank account designated by Sprint in writing
within one business day after such closing date.
11. MISCELLANEOUS.
(a) TERMINATION. This Agreement shall terminate upon the
earlier of: (i) consummation of the Merger and (ii) the date that is 12 months
after the termination of the Merger Agreement in accordance with its terms.
Notwithstanding the foregoing, however, (A) this Section 11 shall not terminate
and shall remain in full force and effect after termination of this Agreement,
(B) if this Agreement shall terminate pursuant to clause (i) above, Sections
7(b), (f) and (g) shall not terminate and shall remain in full force and effect
after termination of this Agreement and (C) if this Agreement shall terminate
pursuant to clause (ii) above, Section 10 shall not terminate and shall remain
in full force and effect after termination of this Agreement in accordance with
its terms.
(b) FURTHER ASSURANCES. From time to time, at any party's
request and without further consideration, each party shall execute and deliver
such additional documents and take all such further action as may be reasonably
necessary or desirable to consummate the transactions contemplated by this
Agreement.
(c) NO OWNERSHIP INTEREST. Nothing contained in this
Agreement shall be deemed to vest in Sprint any direct or indirect ownership or
incidence of ownership of or with respect to the Shares. All rights, ownership
and economic benefits of and relating to the Shares shall remain vested in and
belong to the Stockholders, and Sprint shall have no authority to manage,
direct, superintend, restrict, regulate, govern or administer any of the
policies or operations of the Company or exercise any power or authority to
direct the Stockholders in the voting of any of the Shares, except as otherwise
provided herein.
(d) EXPENSES. All costs and expenses (including legal
fees) (i) incurred in connection with the preparation and negotiation of this
Agreement shall be paid by the party incurring such expenses and (ii) incurred
due to or in connection with any action to enforce the terms of this Agreement
shall be paid by the non-prevailing party in such action.
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(e) NOTICES. All notices, requests, claims, demands and
other communications hereunder shall be in writing and shall be given (and shall
be deemed to have been duly given upon receipt) by delivery in person, by
telecopy or by registered or certified mail (postage prepaid, return receipt
requested) to the respective parties at the following addresses, or at such
other address for a party as shall be specified in a notice given in accordance
with this Section 11(e):
(i) if to Sprint Nextel Corporation to:
Sprint Nextel Corporation
0000 Xxxxxx Xxxxx
Xxxxxx, XX 00000
Telecopier: (000) 000-0000
Attention: General Counsel
with a copy to:
King & Spalding LLP
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000
Telecopier: (000) 000-0000
Attention: Xxxxxxx X. Xxxx
C. Xxxxxxx Xxxxxx
(ii) if to any Stockholder to:
c/o AIG Global Investment Corp.
000 Xxxxxxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopier: (000) 000 0000
Attention: Xxxx Xxxxxxx
with a copy to:
AIG Global Investment Group
0000 Xxxxx Xxxxxxx
Xxxxx X00-00
Xxxxxxx, Xxxxx 00000
Telecopier: (000) 000-0000
Attention: Xxxxxxx Xxxxxxxx
(f) INTERPRETATION. The words "hereof," "herein" and
"hereunder" and words of similar import when used in this Agreement shall refer
to this Agreement as a whole and not to any particular provision of this
Agreement, and Section references are to this Agreement unless otherwise
specified. Whenever the words "include," "includes" or "including" are used in
this Agreement, they shall be deemed to be followed by the words "without
limitation."
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(g) COUNTERPARTS. This Agreement may be executed in two
or more counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument.
(h) ENTIRE AGREEMENT. This Agreement constitutes the
entire agreement and supersedes all prior agreements and understandings, both
written and oral, among the parties with respect to the subject matter hereof.
(i) GOVERNING LAW. This Agreement shall be governed by
and construed in accordance with the Laws of the State of Delaware, without
regard to principles of conflicts of law thereof.
(j) VENUE. The parties (i) agree that any suit, action or
proceeding arising out of or relating to this Agreement will be brought solely
in the state or federal courts of the State of Delaware, (ii) consent to the
exclusive jurisdiction of each such court in any suit, action or proceeding
relating to arising out of this Agreement and (iii) waive any objection that it
may have to the laying of venue in any such suit, action or proceeding in any
such court.
(k) SERVICE OF PROCESS. Each party irrevocably consents
to service of process in the manner provided for the giving of notices pursuant
to this Agreement. Nothing in this Agreement will affect the right of a party to
serve process in another manner permitted by Law.
(l) WAIVER OF JURY TRIAL. EACH PARTY WAIVES, TO THE
FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY
JURY IN RESPECT OF ANY ACTION, SUIT OR PROCEEDING ARISING OUT OF OR RELATING TO
THIS AGREEMENT, AND WHETHER MADE BY CLAIM, COUNTERCLAIM, THIRD PARTY CLAIM OR
OTHERWISE.
(m) AMENDMENT. This Agreement may not be amended except
by an instrument in writing signed on behalf of each of the parties hereto.
(n) SPECIFIC PERFORMANCE. Each of the parties
acknowledges and agrees that the other party would be damaged irreparably in the
event any of the provisions of this Agreement are not performed in accordance
with their specific terms or otherwise are breached. Accordingly, each of the
parties agrees that the other party shall be entitled to seek an injunction or
injunctions to prevent breaches of the provisions of this Agreement and to
enforce specifically this Agreement and the terms and provisions hereof.
(o) PUBLIC ANNOUNCEMENT; DISCLOSURE. Each Stockholder
shall consult with Sprint before issuing any press releases or otherwise making
any public statements with respect to the transactions contemplated herein and,
except as required by Law or regulatory authority after notice to and
consultation with the Company, shall not issue any such press release or make
any such public statement without the approval of Sprint (which approval shall
not be unreasonably withheld or delayed). Each Stockholder hereby authorizes
Sprint and Buyer to publish and disclose in any announcement or disclosure
required by the SEC or the New York Stock Exchange and, if necessary, the Proxy
Statement, its identity and ownership of its Shares and the nature of its
commitments, arrangements and understandings under this Agreement.
-11-
(p) SEVERABILITY. Any term or provision of this Agreement
that is invalid or unenforceable in any situation in any jurisdiction shall not
affect the validity or enforceability of the remaining terms and provisions
hereof or the validity or enforceability of the offending term or provision in
any other situation or in any other jurisdiction. If the final judgment of a
court of competent jurisdiction declares that any term or provision hereof is
invalid or unenforceable, the parties agree that the court making the
determination of invalidity or unenforceability shall have the power to reduce
the scope, duration, or area of the term or provision, to delete specific words
or phrases, or to replace any invalid or unenforceable term or provision with a
term or provision that is valid and enforceable and that comes closest to
expressing the intention of the invalid or unenforceable term or provision, and
this Agreement shall be enforceable as so modified after the expiration of the
time within which the judgment may be appealed.
(q) ASSIGNMENT; THIRD PARTY BENEFICIARIES. Neither this
Agreement nor any of the rights, interests or obligations of any party hereunder
shall be assigned by any of the parties hereto (whether by operation of law or
otherwise) without the prior written consent of the other parties; PROVIDED,
HOWEVER, that Sprint shall be permitted to transfer its rights hereunder to any
affiliate of Sprint, so long as Sprint continues to be liable for its
obligations under this Agreement. Subject to the preceding sentence, this
Agreement will be binding upon, inure to the benefit of and be enforceable by
the parties and their respective successors and permitted assigns. This
Agreement is not intended to confer upon any person other than the parties
hereto any rights or remedies hereunder.
(r) FIDUCIARY DUTIES. Notwithstanding anything to the
contrary in this Agreement, in the case of any officer, director or employee of
any Stockholder who is a director of the Company, the agreements of such
Stockholder contained in this Agreement shall not govern, limit or restrict the
ability of such officer, director or employee of such Stockholder to exercise
his or her fiduciary duties as a director to the stockholders of the Company
under applicable Law in his or her capacity as a director of the Company,
subject in all cases to the provisions of Sections 5.5 and 5.9 of the Merger
Agreement.
[Remainder of Page Intentionally Left Blank]
-12-
IN WITNESS WHEREOF, the parties have signed or have caused this
Agreement to be signed by their respective officers or other authorized persons
thereunto duly authorized as of the date first above written.
SPRINT NEXTEL CORPORATION
By /s/ Xxxxxxx X. Xxxxxx
---------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
[Signatures of Stockholders On Following Page]
IN WITNESS WHEREOF, the parties have signed or have caused this
Agreement to be signed by their respective officers or other authorized persons
thereunto duly authorized as of the date first above written.
AIG ANNUITY INSURANCE COMPANY
SUNAMERICA LIFE INSURANCE COMPANY
THE VARIABLE ANNUITY LIFE INSURANCE COMPANY
By AIG Global Investment Corp.,
investment adviser
By /s/ Xxxx Xxxxxxx
---------------------------------------
Name: Xxxx Xxxxxxx
Title: Managing Director
SCHEDULE A
EXCEPTIONS
1. Registration Rights Agreement, dated February 10, 2005, among the
Company and certain affiliates of AIG Global Investment Corp.
2. AIG Annuity Insurance Company, SunAmerica Life Insurance Company and
The Variable Annuity Life Insurance Company have irrevocably appointed
Xxxxxxx X. Xxxxxxx as their proxy to represent and vote 52,858 shares
of Common Stock beneficially owned by them (the "XXXXXXX PROXY").
SCHEDULE B
EXISTING SHARES
NUMBER OF EXISTING
NUMBER OF EXISTING SHARES SUBJECT TO
NAME OF STOCKHOLDER SHARES XXXXXXX PROXY
--------------------------------------- ------------------ ------------------
AIG Annuity Insurance Company 415,625 13,217
SunAmerica Life Insurance Company 831,718 26,449
The Variable Annuity Life Insurance
Company 414,844 13,192
