UNANIMOUS CONSENT AND WAIVER
Exhibit 99.10
EXECUTION VERSION
UNANIMOUS CONSENT AND WAIVER
THIS UNANIMOUS CONSENT AND WAIVER (this “Unanimous Consent and Waiver”) to and of
certain provisions of that certain Equityholders’ Agreement dated as of November 28, 2008 (the
“Agreement”), and of that certain Amended and Restated Operating Agreement of Clearwire
Communications LLC dated as of November 28, 2008 (the “Clearwire LLC Agreement”), is
entered into as of November 9, 2009 (the “Effective Date”), by and among CLEARWIRE
CORPORATION, a Delaware corporation (the “Company”), CLEARWIRE COMMUNICATIONS LLC, a
Delaware limited liability company (“Clearwire LLC”), SPRINT HOLDCO, LLC, a Delaware
limited liability company (“Sprint”), EAGLE RIVER HOLDINGS, LLC, a Washington limited
liability company (“Eagle River”), INTEL CAPITAL WIRELESS INVESTMENT CORPORATION 2008A, a
Delaware corporation (“Intel A”), INTEL CAPITAL WIRELESS INVESTMENT CORPORATION 2008B, a
Delaware corporation (“Intel B”), INTEL CAPITAL WIRELESS INVESTMENT CORPORATION 2008C, a
Delaware corporation (“Intel C”), INTEL CAPITAL CORPORATION, a Delaware corporation
(“Intel Capital”), INTEL CAPITAL (CAYMAN) CORPORATION, a Cayman Islands corporation
(“Intel Cayman”), MIDDLEFIELD VENTURES, INC., a Delaware corporation
(“Middlefield”, and together with Intel A, Intel B, Intel C, Intel Capital and Intel
Cayman, “Intel”), COMCAST WIRELESS INVESTMENT I, INC., a Delaware corporation (“Comcast
I”), COMCAST WIRELESS INVESTMENT II, INC., a Delaware corporation (“Comcast II”),
COMCAST WIRELESS INVESTMENT III, INC., a Delaware corporation (“Comcast III”), COMCAST
WIRELESS INVESTMENT IV, INC., a Delaware corporation (“Comcast IV”), COMCAST WIRELESS
INVESTMENT V, INC., a Delaware corporation (“Comcast V” and, together with Comcast I,
Comcast II, Comcast III and Comcast IV, “Comcast”), GOOGLE INC., a Delaware corporation
(“Google”), TWC WIRELESS HOLDINGS I LLC, a Delaware limited liability company (“TWC
I”), TWC WIRELESS HOLDINGS II LLC, a Delaware limited liability company (“TWC II”), TWC
WIRELESS HOLDINGS III LLC, a Delaware limited liability company (“TWC III” and, together
with TWC I and TWC II, “TWC”), BHN SPECTRUM INVESTMENTS, LLC, a Delaware limited liability
company (“BHN”, and together with, Sprint, Eagle River, Intel, Comcast, Google and TWC, the
“Consenting Parties”) and COMCAST CORPORATION, a Pennsylvania corporation in its capacity
as the Strategic Investor Representative. Capitalized terms not otherwise defined herein shall have
the meanings ascribed to those terms in the Agreement.
RECITALS
WHEREAS, concurrently with the execution of this Unanimous Consent and Waiver, the Consenting
Parties have executed a written consent to action in lieu of a special stockholder meeting of the
Company (the “Consent”) consenting to the following (collectively, the “Consented
Actions”):
(i) the Company entering into, and causing Clearwire LLC to enter into, the Investment
Agreement among the Company, Clearwire LLC and certain of the Company’s
existing stockholders attached as Exhibit A to the Consent (the “Investment
Agreement”) and consummating the transactions pursuant to which Clearwire LLC will issue Class
B Common Units and Voting Units to such existing stockholders and the Company will issue shares of
Class B Common Stock to such existing stockholders in exchange for the Voting Units on the terms
and conditions in the Investment Agreement (the “Investment Transactions”);
(ii) the Company conducting a pro rata rights offering to all holders of the Company’s Class A
Common Stock on terms substantially consistent with the terms described in Section 6.2 of the
Investment Agreement (the “Rights Offering”); and
(iii) the Company amending its Restated Certificate of Incorporation, as amended, to increase
the number of authorized shares of Class A Common Stock to 1,500,000,000 and the number of
authorized shares of Class B Common Stock to 1,000,000,000, by adopting the amendment set forth on
Exhibit B to the Consent (the “Charter Amendment”);
WHEREAS, pursuant to the Agreement and the Clearwire LLC Agreement, the Consenting Parties
have certain approval rights with respect to the Investment Transactions, the Rights Offering and
the Charter Amendment and desire to approve and consent to the Investment Transactions as provided
herein;
WHEREAS, Section 3.5 of the Agreement and Section 7.10 of the Clearwire LLC Agreement require
the Company and Clearwire LLC, respectively, to offer preemptive rights (the “Preemptive
Rights”) to the Consenting Parties with respect to any issuance of New Securities or New Units
(as defined in the Clearwire LLC Agreement);
WHEREAS, the issuance of shares of Class B Common Stock, Class B Common Units and Voting Units
in connection with the Investment Transactions and the issuance of shares of Class A Common Stock
in connection with the Rights Offering will constitute an offering of New Securities and New Units;
WHEREAS, each of the Consenting Parties desires to waive its Preemptive Rights and their
respective rights to receive notice pursuant to the Agreement and the Clearwire LLC Agreement with
respect to the Company’s issuance of the New Securities and New Units pursuant to the Investment
Transactions and the Rights Offering as provided herein;
WHEREAS, each of the Consenting Parties desire to waive their respective rights to participate
in the Rights Offering pursuant to the terms provided herein;
WHEREAS, Section 3.7 of the Agreement (the “Standstill Provisions”) prohibits certain
Consenting Parties from engaging directly or indirectly in certain negotiations, activities and
transactions relating to the acquisition of any Common Stock of the Company and certain other
transactions; and
WHEREAS, the Company and the Consenting Parties previously executed a waiver related to the
negotiations of certain transactions and the Consenting Parties desire to waive the Standstill
Provisions to permit the negotiation, execution and consummation of the transactions
in connection with the Investment Transactions and the Rights Offering consistent with the
terms of the Investment Agreement, the Consent and this Unanimous Consent and Waiver.
NOW THEREFORE, the parties hereto agree as follows:
AGREEMENT
1. Limited Waivers and Consents.
(a) The Consenting Parties agree that the execution of this Unanimous Consent and Waiver by
each of the Consenting Parties constitutes each such Consenting Party’s approval of, and consent
to, the Company and Clearwire LLC entering into and consummating the Investment Transactions, the
Rights Offering and the Charter Amendment, including the approvals required in Section 2.7(a) of
the Agreement, the Company’s Restated Certificate of Incorporation and Bylaws, the Clearwire LLC
Agreement and applicable Law.
(b) The Consenting Parties hereby waive, and will cause their respective Permitted Designees
to waive, their respective Preemptive Rights and their respective rights to receive notice pursuant
to the Agreement and the Clearwire LLC Agreement with respect to the issuance of the New Securities
and New Units pursuant to the Investment Transactions and the Rights Offering.
(c) The Consenting Parties hereby agree that, with respect to any rights issued as part of the
Rights Offering (the “Rights”) in respect of shares of Class A Common Stock held by such
Party or any of its Permitted Designees on the Registration Effective Date (as defined in the
Investment Agreement), each such Party will not, and will cause its Permitted Designees not to,
exercise any such Rights or Transfer any such Rights.
(d) Each of the Consenting Parties, the Company and Clearwire LLC hereby acknowledge and agree
that: (i) nothing in this Unanimous Consent and Waiver shall prohibit any Consenting Party from
Transferring shares of Class A Common Stock, shares of Class B Common Stock or Units now held by,
or hereinafter acquired by or Transferred to such Consenting Party if such Transfer or acquisition
is otherwise permitted under the Agreement and the Clearwire LLC Agreement, (ii) the restriction in
subsection (c) above does not apply to a transferee of a Consenting Party’s Equity Securities if
such Transfer occurs prior to the Registration Effective Date and such restriction shall not
prohibit such transferee (other than an affiliate of such Consenting Party) from (x) exercising any
Rights or (y) Transferring such transferee’s Rights or right to receive the Rights, and (iii) the
restriction in subsection (c) above does not apply to a Consenting Party solely with respect to
Rights issued in respect of shares of Class A Common Stock acquired by such Consenting Party prior
to the Registration Effective Date in a Transfer pursuant to Section 3.3 of the Agreement.
(e) The Company and the Consenting Parties hereby waive the Standstill Provisions insofar as
they restrict or prohibit the execution and consummation of the transactions in connection with the
Investment Transactions and the Rights Offering consistent with the terms of the Investment
Agreement, the Consent and this Unanimous Consent and Waiver. Notwithstanding the foregoing, the
parties hereto acknowledge and agree that (i) the foregoing
waiver shall not be applicable with respect to any direct or indirect acquisition by any
Standstill Equityholder of any of the rights issued in the Rights Offering or any option or other
right to acquire or interest in any of the rights issued in the Rights Offering and (ii) the
Standstill Provision shall remain applicable to any such acquisition.
(f) Clearwire, Clearwire LLC and the Consenting Parties hereby acknowledge and agree that this
Section 1 constitutes all of the consents, approvals and waivers required under the Agreement and
the Clearwire LLC Agreement for the Company and Clearwire LLC to enter into and consummate the
Investment Transactions, the Rights Offering and the Charter Amendment.
(g) The Consenting Parties hereby consent to the formation of the Network Oversight Committee
of the Board of Directors of the Company pursuant to the resolutions of the Board of Directors of
the Company attached hereto as Exhibit C; provided, that, any modification of the scope of
such committee’s authority or power shall be subject to further consent of the Consenting Parties.
(h) The Consenting Parties hereby consent to Eagle River becoming a Member of Clearwire LLC
and becoming a party to the Clearwire LLC Agreement in the capacity of a Member.
2. Other Provisions. This Unanimous Consent and Waiver shall be limited as written and
nothing herein shall be deemed to constitute a waiver of any other term, provision or condition of
the Agreement or the Clearwire LLC Agreement or prejudice any right or remedy that any Consenting
Party may have or may in the future have under the Agreement, the Clearwire LLC Agreement and all
provisions of the Agreement and the Clearwire LLC Agreement shall remain in full force and effect.
3. Counterparts. This Unanimous Consent and Waiver may be executed in one or more
counterparts, each of which shall be deemed an original and all of which shall constitute one and
the same Unanimous Consent and Waiver.
4. Amendment/Assignment. This Unanimous Consent and Waiver may only be amended by an
instrument in writing signed on behalf of each of the parties hereto. No party may assign its
rights or delegate its duties and obligations to be performed under this Unanimous Consent and
Waiver without the prior written consent of each of the other parties. Neither the Company nor
Clearwire LLC shall be entitled to agree to amend or waive any provision herein that could be
adverse to such entity in any material respect without the approval of the disinterested members of
the Audit Committee.
5. Agreement. This Unanimous Consent and Waiver sets forth the entire understanding of the
parties with respect to the subject matter contemplated hereby. This Unanimous Consent and Waiver
is binding on and will inure to the benefit of all parties hereto and their respective successors
and permitted assigns.
6. Notices. All notices and other communications required or permitted under this
Unanimous Consent and Waiver shall be made pursuant to Section 4.6 of the Agreement.
IN WITNESS WHEREOF, the parties to this Agreement have executed this Unanimous Consent and
Waiver as of the date set forth in the first paragraph hereof.
CLEARWIRE CORPORATION |
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By: | /s/ Xxxxxxx X. Xxxxxx | |||
Name: | Xxxxxxx X. Xxxxxx | |||
Title: | Chief Executive Officer | |||
CLEARWIRE COMMUNICATIONS LLC |
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By: | /s/ Xxxxxxx X. Xxxxxx | |||
Name: | Xxxxxxx X. Xxxxxx | |||
Title: | Chief Executive Officer | |||
[Signature Page to the Unanimous Consent and Waiver of the Equityholders’ Agreement and
Amended and Restated Operating Agreement]
Amended and Restated Operating Agreement]
SPRINT HOLDCO, LLC |
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By: | /s/ Xxxxx X. Xxxxx | |||
Name: | Xxxxx X. Xxxxx | |||
Title: | Vice President | |||
[Signature Page to the Unanimous Consent and Waiver of the Equityholders’ Agreement and
Amended and Restated Operating Agreement]
Amended and Restated Operating Agreement]
EAGLE RIVER HOLDINGS, LLC | ||||||
By: Eagle River Inc., its Manager | ||||||
By: | /s/ Xxxx Xxxxx
|
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Title: VP |
[Signature Page to the Unanimous Consent and Waiver of the Equityholders’ Agreement and
Amended and Restated Operating Agreement]
Amended and Restated Operating Agreement]
INTEL CAPITAL WIRELESS
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INTEL CAPITAL CORPORATION | |
INVESTMENT CORPORATION 2008A |
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/s/ Xxxxxx Xxxxxxx
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/s/ Xxxxxx Xxxxxxx
|
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Title: President
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Title: President | |
INTEL CAPITAL WIRELESS
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INTEL CAPITAL (CAYMAN) | |
INVESTMENT CORPORATION 2008B
|
CORPORATION | |
/s/ Xxxxxx Xxxxxxx
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/s/ Xxxxxx Xxxxxxx
|
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Title: President
|
Title: President | |
INTEL CAPITAL WIRELESS
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MIDDLEFIELD VENTURES, INC. | |
INVESTMENT CORPORATION 2008C |
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/s/ Xxxxxx Xxxxxxx
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/s/ Xxxxxx Xxxxxxx
|
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Title: President
|
Title: President | |
CLEARWIRE CORPORATION |
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/s/ Xxxxxxx X. Xxxxxx |
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Title: Chief Executive Officer |
[Signature Page to the Unanimous Consent and Waiver of the Equityholders’ Agreement and
Amended and Restated Operating Agreement]
Amended and Restated Operating Agreement]
COMCAST WIRELESS INVESTMENT I, INC. | COMCAST WIRELESS INVESTMENT II, INC. | |||||
By:
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/s/ Xxxxxx X. Pick | By: | /s/ Xxxxxx X. Pick | |||
Name: Xxxxxx X. Pick | Name: Xxxxxx X. Pick | |||||
Title: Senior Vice President | Title: Senior Vice President | |||||
COMCAST WIRELESS INVESTMENT III, INC. | COMCAST WIRELESS INVESTMENT IV, INC. | |||||
By:
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/s/ Xxxxxx X. Pick | By: | /s/ Xxxxxx X. Pick | |||
Name: Xxxxxx X. Pick | Name: Xxxxxx X. Pick | |||||
Title: Senior Vice President | Title: Senior Vice President | |||||
COMCAST WIRELESS INVESTMENT V, INC. | COMCAST CORPORATION, | |||||
as the Strategic Investor Representative | ||||||
By:
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/s/ Xxxxxx X. Pick | By: | /s/ Xxxxxx X. Pick | |||
Name: Xxxxxx X. Pick | Name: Xxxxxx X. Pick | |||||
Title: Senior Vice President | Title: Senior Vice President |
[Signature Page to the Unanimous Consent and Waiver of the Equityholders’ Agreement and
Amended and Restated Operating Agreement]
Amended and Restated Operating Agreement]
GOOGLE INC. |
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By: | /s/ Xxxx Xxxxxx | |||
Name: | Xxxx Xxxxxx | |||
Title: | Vice President and General Counsel | |||
[Signature Page to the Unanimous Consent and Waiver of the Equityholders’ Agreement and
Amended and Restated Operating Agreement]
Amended and Restated Operating Agreement]
TWC WIRELESS HOLDINGS I LLC |
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By: | /s/ Satish Adige | |||
Name: | Satish Adige | |||
Title: | Senior Vice President, Investments |
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TWC WIRELESS HOLDINGS II LLC |
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By: | /s/ Satish Adige | |||
Name: | Satish Adige | |||
Title: | Senior Vice President, Investments |
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TWC WIRELESS HOLDINGS III LLC |
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By: | /s/ Satish Adige | |||
Name: | Satish Adige | |||
Title: | Senior Vice President, Investments |
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[Signature Page to the Unanimous Consent and Waiver of the Equityholders’ Agreement and
Amended and Restated Operating Agreement]
Amended and Restated Operating Agreement]
BHN SPECTRUM INVESTMENTS, LLC |
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By: | /s/ Xxx Xxxxxxxx | |||
Name: | Xxx Xxxxxxxx | |||
Title: | Senior Vice President |
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[Signature Page to the Unanimous Consent and Waiver of the Equityholders’ Agreement and
Amended and Restated Operating Agreement]
Amended and Restated Operating Agreement]