STOCK DELIVERY AGREEMENT
Exhibit 10.1
This agreement (“Agreement”) is made and entered into as of December 8, 2010, by and
among Clearwire Communications LLC, a Delaware limited liability company (“Clearwire
Communications”), Clearwire Finance, Inc., a Delaware corporation (“Clearwire Finance”
and together with Clearwire Communications, the “Issuers”), and Clearwire Corporation, a
Delaware corporation (“Parent”).
WHEREAS, Parent is the managing member of Clearwire Communications, and Clearwire
Communications is the sole owner of Clearwire Finance;
WHEREAS, the Issuers and Parent have entered into a purchase agreement dated as of December 3,
2010 (the “Purchase Agreement”) with X.X. Xxxxxx Securities LLC, as representative of the
initial purchasers listed on Schedule 1 thereto (the “Initial Purchasers”), providing for
the issuance and sale by the Issuers in an offering under Rule 144A promulgated under the
Securities Act of 1933, as amended (the “Act”), of up to $1.41 billion in aggregate
principal amount of the Issuers’ 8.25% Exchangeable Notes due 2040 (the “Notes”), which
Notes are exchangeable under certain circumstances into shares of Class A common stock, par value
$0.0001 per share, of Parent (the “Class A Shares”); and
NOW, THEREFORE, in consideration of the foregoing and in consideration of the mutual covenants
contained herein, the parties agree as follows:
Agreement
1. If the Issuers are required or choose to deliver Class A Shares to the holders of the
Notes in accordance with the terms of the Notes and the Indenture, dated as of December 8, 2010
(the “Indenture”), by and among the Issuers, the guarantors party thereto, and Wilmington
Trust FSB, as trustee (the “Trustee”), related to the Notes, then, to the extent necessary
to enable the Issuers to satisfy such obligation, Parent agrees to issue to the holders of the
Notes the number of Class A Shares that the Issuers are obligated to deliver, and the Issuers
hereby direct Parent to deliver, or cause to be delivered, such Class A Shares to the holders of
the Notes on behalf of the Issuers in accordance with the Indenture. Any Class A Shares delivered
by Parent to the holders of the Notes on behalf of the Issuers shall be upon issuance fully paid
and non-assessable by Parent and free from all taxes, liens and charges with respect to the issue
thereof.
2. If the Class A Shares are listed on a national securities exchange or automated quotation
system, Parent agrees to use its reasonable best efforts to cause the Class A Shares required to be
delivered by the Issuers to the holders of the Notes upon exchange of the Notes to be listed on
such national securities exchange or automated quotation system.
3. Parent hereby agrees that if Parent issues “restricted securities” (within the meaning of
Rule 144(a)(3) under the Act) to holders of the Notes pursuant to paragraph 1 hereof, Parent shall
make available and deliver to such holders such information and reports as Clearwire Communications
would be required pursuant to the Indenture to provide to such
holders of the Notes; provided that if Parent or Clearwire Communications has electronically
filed with the Securities and Exchange Commission’s Next-Generation XXXXX system (or
any successor
system) the reports described in Section 1007(a) of the Indenture (including any consolidating
information required by Section 1007(b) of the Indenture, unless otherwise provided to the Trustee
and the Holders), Parent and the Issuers shall be deemed to have satisfied the requirements of this
paragraph 3.
4. Parent hereby agrees to notify the Issuers promptly upon the occurrence of any event that
would cause an adjustment to the amount of Class A Shares required to be delivered by the Issuers
upon exchange of the Notes as set forth in the Indenture.
5. Upon any such issuance of Class A Shares, Clearwire Communications shall, in accordance
with Section 7.6 and Section 7.7 of its Amended and Restated Operating Agreement (as amended, the
“Operating Agreement”), issue to Parent on a concurrent basis a number of “Voting Units”
and a number of “Class A Common Units” (each as defined in the Operating Agreement), in each case
equal to the number of Class A Shares so issued.
6. The Issuers hereby agree to indemnify Parent and each of its directors and officers (each,
an “Indemnified Party”) against, and agree to hold, save and defend each Indemnified Party
harmless from, any loss, expense or damage (including, without limitation, reasonable attorneys’
fees and expenses and court costs actually incurred) suffered or incurred by an Indemnified Party
by reason of anything such Indemnified Party may in good faith do or refrain from doing for or on
behalf of the Issuers pursuant to this Agreement; provided, however, that the Issuers shall not be
required to indemnify an Indemnified Party for any loss, expense or damage that such Indemnified
Party may suffer or incur as a result of its willful misconduct or gross negligence.
7. Miscellaneous.
(a) THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF
THE STATE OF NEW YORK, WITHOUT GIVING EFFECT TO CONFLICT OF LAWS PRINCIPLES THEREOF.
(b) Capitalized terms used herein but not defined herein shall have the meanings
ascribed to such terms in the Indenture.
(c) In the event that any claim of inconsistency between this Agreement and the terms
of the Indenture arise, as they may from time to time be amended, the terms of the Indenture
shall control.
(d) If any provision of this Agreement shall be held illegal, invalid, or unenforceable
by any court, this Agreement shall be construed and enforced as if such provision had not
been contained herein and shall be deemed an agreement among us to the full extent permitted
by applicable law.
(e) The terms and provisions of this Agreement are intended solely for the benefit of
each party hereto and their respective successors or permitted assigns, and
it is not the intention of the parties to confer third-party beneficiary rights to any
other person, except that the holders of the Notes shall be deemed third-party
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beneficiaries
of this Agreement and shall be entitled to enforce the provisions of this Agreement as if
they were parties hereto.
(f) This Agreement may not be assigned by either party without the prior written
consent of both parties.
(g) Notwithstanding paragraph 7(e) herein, the Issuers and Parent may amend, modify or
waive any provision of this Agreement without the consent of the holders of the Notes. If
any provision of this Agreement is amended, modified or waived, Clearwire Communications
shall promptly thereafter notify the holders of the Notes and the Trustee of such amendment,
modification or waiver.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement by their duly authorized
officers as of the day and year above written.
| CLEARWIRE COMMUNICATIONS LLC |
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| By: | /s/ Hope X. Xxxxxxx | |||
| Name: | Hope X. Xxxxxxx | |||
| Title: | Senior Vice President, Finance and Treasurer |
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| CLEARWIRE FINANCE, INC. |
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| By: | /s/ Hope X. Xxxxxxx | |||
| Name: | Hope X. Xxxxxxx | |||
| Title: | Senior Vice President, Finance and Treasurer |
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| CLEARWIRE CORPORATION |
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| By: | /s/ Hope X. Xxxxxxx | |||
| Name: | Hope X. Xxxxxxx | |||
| Title: | Senior Vice President, Finance and Treasurer |
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Signature Page to Stock Delivery Requirement
