SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D/A
(Rule 13d-101)
INFORMATION TO BE INCLUDED IN STATEMENTS FILED PURSUANT
TO § 240.13d-1(a) AND AMENDMENTS THERETO FILED PURSUANT TO
§ 240.13d-2(a)
(Amendment No. 8)*
CLEARWIRE CORPORATION
(Name of Issuer)
Class A Common Stock
(Title of Class of Securities)
18538Q 105
(CUSIP Number)
Michael J. Egan
King & Spalding LLP
1180 Peachtree Street, N.E.
Atlanta, Georgia 30309
(404) 572-4600
(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)
cc:
David L. Caplan Davis Polk & Wardwell 450 Lexington Avenue New York, New York 10017 |
Robert B. Schumer Paul, Weiss, Rifkind, Wharton & Garrison LLP 1285 Avenue of the Americas New York, New York 10019-6064 |
Arthur J. Steinhauer, Esq. Sabin, Bermant & Gould LLP Four Times Square New York, New York 10036 |
David J. Segre Wilson Sonsini Goodrich & Rosati Professional Corporation 650 Page Mill Road Palo Alto, California 94304 |
Steven C. Davis Davis Wright Tremaine LLP 1201 Third Avenue, Suite 2200 Seattle, Washington 98101 |
November 30, 2011
(Date of Event Which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to report the acquisition that is the subject of this Schedule 13D, and is filing this schedule because of §§ 240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check the following box: ¨
NOTE: Schedules filed in paper format shall include a signed original and five copies of the schedule, including all exhibits. See § 240.13d-7 for other parties to whom copies are to be sent.
* | The remainder of this cover page shall be filled out for a reporting persons initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter disclosures provided in a prior cover page. |
The information required on the remainder of this cover page shall not be deemed to be filed for the purpose of Section 18 of the Securities Exchange Act of 1934 (the Act) or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes).
(Continued on following pages)
(Page 1 of 44 Pages)
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23 | ||
26 | ||
28 | ||
29 | ||
30 | ||
43 | ||
EX-99.17 |
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EX-99.18 |
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EX-99.19 |
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EX-99.20 |
CUSIP No. 18538Q 105 | 13D | Page 3 of 44 Pages |
(1) |
Name of reporting person:
Sprint Nextel Corporation | |||||
(2) | Check the appropriate box if a member of a group
(a) ¨ (b) þ | |||||
(3) | SEC use only
| |||||
(4) | Source of funds:
Not Applicable | |||||
(5) | Check box if disclosure of legal proceedings is required pursuant to Items 2(d) or 2(e)
¨ | |||||
(6) | Citizenship or place of organization:
Kansas | |||||
Number of shares beneficially owned by each reporting person with |
(7) | Sole voting power:
0 | ||||
(8) | Shared voting power:
627,945,914* | |||||
(9) | Sole dispositive power:
0 | |||||
(10) | Shared dispositive power:
627,945,914* | |||||
(11) |
Aggregate amount beneficially owned by each reporting person:
627,945,914* | |||||
(12) |
Check box if the aggregate amount in Row (11) excludes certain shares
þ** | |||||
(13) |
Percent of class represented by amount in Row (11):
58.1%* | |||||
(14) |
Type of reporting person:
HC |
* | See discussion in Items 4 through 6 of the Statement on Schedule 13D filed on December 5, 2008, as amended (the Schedule 13D). As more fully described in the responses to Items 4 through 6 of the Schedule 13D, the Reporting Persons and certain other beneficial owners of Class A Common Stock named herein may be deemed to be members of a group under Section 13(d) of the Act by virtue of the Equityholders Agreement described in the Schedule 13D. Neither the filing of this Amendment No. 8 to Statement on Schedule 13D (this Amendment) nor any of its contents shall be deemed to constitute an admission by any Reporting Person that, except as expressly set forth herein, it has or shares beneficial ownership of any shares of Class A Common Stock held by any other person for purposes of Section 13(d) of the Act, or for any other purpose, and such beneficial ownership thereof is expressly disclaimed. |
** | See the footnotes to the table in Item 5(a)-(b) of this Amendment. |
CUSIP No. 18538Q 105 | 13D | Page 4 of 44 Pages |
(1) |
Name of reporting person:
Sprint HoldCo, LLC | |||||
(2) | Check the appropriate box if a member of a group
(a) ¨ (b) þ | |||||
(3) | SEC use only
| |||||
(4) | Source of funds:
WC | |||||
(5) | Check box if disclosure of legal proceedings is required pursuant to Items 2(d) or 2(e)
¨ | |||||
(6) | Citizenship or place of organization:
Delaware | |||||
Number of shares beneficially owned by each reporting person with |
(7) | Sole voting power:
0 | ||||
(8) | Shared voting power:
627,945,914* | |||||
(9) | Sole dispositive power:
0 | |||||
(10) | Shared dispositive power:
627,945,914* | |||||
(11) |
Aggregate amount beneficially owned by each reporting person:
627,945,914* | |||||
(12) |
Check box if the aggregate amount in Row (11) excludes certain shares
þ** | |||||
(13) |
Percent of class represented by amount in Row (11):
58.1%* | |||||
(14) |
Type of reporting person:
OO |
* | See discussion in Items 4 through 6 of the Schedule 13D. As more fully described in the responses to Items 4 through 6 of the Schedule 13D, the Reporting Persons and certain other beneficial owners of Class A Common Stock named herein may be deemed to be members of a group under Section 13(d) of the Act by virtue of the Equityholders Agreement described in the Schedule 13D. Neither the filing of this Amendment nor any of its contents shall be deemed to constitute an admission by any Reporting Person that, except as expressly set forth herein, it has or shares beneficial ownership of any shares of Class A Common Stock held by any other person for purposes of Section 13(d) of the Act, or for any other purpose, and such beneficial ownership thereof is expressly disclaimed. |
** | See the footnotes to the table in Item 5(a)-(b) of this Amendment. |
CUSIP No. 18538Q 105 | 13D | Page 5 of 44 Pages |
(1) |
Name of reporting person:
Comcast Corporation | |||||
(2) | Check the appropriate box if a member of a group
(a) ¨ (b) þ | |||||
(3) | SEC use only
| |||||
(4) | Source of funds:
WC | |||||
(5) | Check box if disclosure of legal proceedings is required pursuant to Items 2(d) or 2(e)
¨ | |||||
(6) | Citizenship or place of organization:
Pennsylvania | |||||
Number of shares beneficially owned by each reporting person with |
(7) | Sole voting power:
0 | ||||
(8) | Shared voting power:
88,504,132* | |||||
(9) | Sole dispositive power:
0 | |||||
(10) | Shared dispositive power:
88,504,132* | |||||
(11) |
Aggregate amount beneficially owned by each reporting person:
88,504,132* | |||||
(12) |
Check box if the aggregate amount in Row (11) excludes certain shares:
þ** | |||||
(13) |
Percent of class represented by amount in Row (11):
16.4%* | |||||
(14) |
Type of reporting person:
CO |
* | See discussion in Items 4 through 6 of the Schedule 13D. As more fully described in the responses to Items 4 through 6 of the Schedule 13D, the Reporting Persons and certain other beneficial owners of Class A Common Stock named herein may be deemed to be members of a group under Section 13(d) of the Act by virtue of the Equityholders Agreement described in the Schedule 13D. Neither the filing of this Amendment nor any of its contents shall be deemed to constitute an admission by any Reporting Person that, except as expressly set forth herein, it has or shares beneficial ownership of any shares of Class A Common Stock held by any other person for purposes of Section 13(d) of the Act, or for any other purpose, and such beneficial ownership thereof is expressly disclaimed. |
** | See the footnotes to the table in Item 5(a)-(b) of this Amendment. |
CUSIP No. 18538Q 105 | 13D | Page 6 of 44 Pages |
(1) |
Name of reporting person:
Comcast Wireless Investment I, Inc. | |||||
(2) | Check the appropriate box if a member of a group
(a) ¨ (b) þ | |||||
(3) | SEC use only
| |||||
(4) | Source of funds:
AF | |||||
(5) | Check box if disclosure of legal proceedings is required pursuant to Items 2(d) or 2(e)
¨ | |||||
(6) | Citizenship or place of organization:
Delaware | |||||
Number of shares beneficially owned by each reporting person with |
(7) | Sole voting power:
0 | ||||
(8) | Shared voting power:
12,352,941* | |||||
(9) | Sole dispositive power:
0 | |||||
(10) | Shared dispositive power:
12,352,941* | |||||
(11) |
Aggregate amount beneficially owned by each reporting person:
12,352,941* | |||||
(12) |
Check box if the aggregate amount in Row (11) excludes certain shares
þ** | |||||
(13) |
Percent of class represented by amount in Row (11):
2.7%* | |||||
(14) |
Type of reporting person:
CO |
* | See discussion in Items 4 through 6 of the Schedule 13D. As more fully described in the responses to Items 4 through 6 of the Schedule 13D, the Reporting Persons and certain other beneficial owners of Class A Common Stock named herein may be deemed to be members of a group under Section 13(d) of the Act by virtue of the Equityholders Agreement described in the Schedule 13D. Neither the filing of this Amendment nor any of its contents shall be deemed to constitute an admission by any Reporting Person that, except as expressly set forth herein, it has or shares beneficial ownership of any shares of Class A Common Stock held by any other person for purposes of Section 13(d) of the Act, or for any other purpose, and such beneficial ownership thereof is expressly disclaimed. |
** | See the footnotes to the table in Item 5(a)-(b) of this Amendment. |
CUSIP No. 18538Q 105 | 13D | Page 7 of 44 Pages |
(1) |
Name of reporting person:
Comcast Wireless Investment II, Inc. | |||||
(2) | Check the appropriate box if a member of a group
(a) ¨ (b) þ | |||||
(3) | SEC use only
| |||||
(4) | Source of funds:
AF | |||||
(5) | Check box if disclosure of legal proceedings is required pursuant to Items 2(d) or 2(e)
¨ | |||||
(6) | Citizenship or place of organization:
Delaware | |||||
Number of shares beneficially owned by each reporting person with |
(7) | Sole voting power:
0 | ||||
(8) | Shared voting power:
12,352,941* | |||||
(9) | Sole dispositive power:
0 | |||||
(10) | Shared dispositive power:
12,352,941* | |||||
(11) |
Aggregate amount beneficially owned by each reporting person:
12,352,941* | |||||
(12) |
Check box if the aggregate amount in Row (11) excludes certain shares
þ** | |||||
(13) |
Percent of class represented by amount in Row (11):
2.7%* | |||||
(14) |
Type of reporting person:
CO |
* | See discussion in Items 4 through 6 of the Schedule 13D. As more fully described in the responses to Items 4 through 6 of the Schedule 13D, the Reporting Persons and certain other beneficial owners of Class A Common Stock named herein may be deemed to be members of a group under Section 13(d) of the Act by virtue of the Equityholders Agreement described in the Schedule 13D. Neither the filing of this Amendment nor any of its contents shall be deemed to constitute an admission by any Reporting Person that, except as expressly set forth herein, it has or shares beneficial ownership of any shares of Class A Common Stock held by any other person for purposes of Section 13(d) of the Act, or for any other purpose, and such beneficial ownership thereof is expressly disclaimed. |
** | See the footnotes to the table in Item 5(a)-(b) of this Amendment. |
CUSIP No. 18538Q 105 | 13D | Page 8 of 44 Pages |
(1) |
Name of reporting person:
Comcast Wireless Investment III, Inc. | |||||
(2) | Check the appropriate box if a member of a group
(a) ¨ (b) þ | |||||
(3) | SEC use only
| |||||
(4) | Source of funds:
AF | |||||
(5) | Check box if disclosure of legal proceedings is required pursuant to Items 2(d) or 2(e)
¨ | |||||
(6) | Citizenship or place of organization:
Delaware | |||||
Number of shares beneficially owned by each reporting person with |
(7) | Sole voting power:
0 | ||||
(8) | Shared voting power:
12,352,941* | |||||
(9) | Sole dispositive power:
0 | |||||
(10) | Shared dispositive power:
12,352,941* | |||||
(11) |
Aggregate amount beneficially owned by each reporting person:
12,352,941* | |||||
(12) |
Check box if the aggregate amount in Row (11) excludes certain shares
þ** | |||||
(13) |
Percent of class represented by amount in Row (11):
2.7%* | |||||
(14) |
Type of reporting person
CO |
* | See discussion in Items 4 through 6 of the Schedule 13D. As more fully described in the responses to Items 4 through 6 of the Schedule 13D, the Reporting Persons and certain other beneficial owners of Class A Common Stock named herein may be deemed to be members of a group under Section 13(d) of the Act by virtue of the Equityholders Agreement described in the Schedule 13D. Neither the filing of this Amendment nor any of its contents shall be deemed to constitute an admission by any Reporting Person that, except as expressly set forth herein, it has or shares beneficial ownership of any shares of Class A Common Stock held by any other person for purposes of Section 13(d) of the Act, or for any other purpose, and such beneficial ownership thereof is expressly disclaimed. |
** | See the footnotes to the table in Item 5(a)-(b) of this Amendment. |
CUSIP No. 18538Q 105 | 13D | Page 9 of 44 Pages |
(1) |
Name of reporting person:
Comcast Wireless Investment IV, Inc. | |||||
(2) | Check the appropriate box if a member of a group
(a) ¨ (b) þ | |||||
(3) | SEC use only
| |||||
(4) | Source of funds:
AF | |||||
(5) | Check box if disclosure of legal proceedings is required pursuant to Items 2(d) or 2(e)
¨ | |||||
(6) | Citizenship or place of organization:
Delaware | |||||
Number of shares beneficially owned by each reporting person with |
(7) | Sole voting power:
0 | ||||
(8) | Shared voting power:
12,352,941* | |||||
(9) | Sole dispositive power:
0 | |||||
(10) | Shared dispositive power:
12,352,941* | |||||
(11) |
Aggregate amount beneficially owned by each reporting person:
12,352,941* | |||||
(12) |
Check box if the aggregate amount in Row (11) excludes certain shares
þ** | |||||
(13) |
Percent of class represented by amount in Row (11):
2.7%* | |||||
(14) |
Type of reporting person
CO |
* | See discussion in Items 4 through 6 of the Schedule 13D. As more fully described in the responses to Items 4 through 6 of the Schedule 13D, the Reporting Persons and certain other beneficial owners of Class A Common Stock named herein may be deemed to be members of a group under Section 13(d) of the Act by virtue of the Equityholders Agreement described in the Schedule 13D. Neither the filing of this Amendment nor any of its contents shall be deemed to constitute an admission by any Reporting Person that, except as expressly set forth herein, it has or shares beneficial ownership of any shares of Class A Common Stock held by any other person for purposes of Section 13(d) of the Act, or for any other purpose, and such beneficial ownership thereof is expressly disclaimed. |
** | See the footnotes to the table in Item 5(a)-(b) of this Amendment. |
CUSIP No. 18538Q 105 | 13D | Page 10 of 44 Pages |
(1) |
Name of reporting person:
Comcast Wireless Investment V, Inc. | |||||
(2) | Check the appropriate box if a member of a group
(a) ¨ (b) þ | |||||
(3) | SEC use only
| |||||
(4) | Source of funds:
AF | |||||
(5) | Check box if disclosure of legal proceedings is required pursuant to Items 2(d) or 2(e)
¨ | |||||
(6) | Citizenship or place of organization:
Delaware | |||||
Number of shares beneficially owned by each reporting person with |
(7) | Sole voting power:
0 | ||||
(8) | Shared voting power:
12,352,941* | |||||
(9) | Sole dispositive power:
0 | |||||
(10) | Shared dispositive power:
12,352,941* | |||||
(11) |
Aggregate amount beneficially owned by each reporting person:
12,352,941* | |||||
(12) |
Check box if the aggregate amount in Row (11) excludes certain shares
þ** | |||||
(13) |
Percent of class represented by amount in Row (11):
2.7%* | |||||
(14) |
Type of reporting person:
CO |
* | See discussion in Items 4 through 6 of the Schedule 13D. As more fully described in the responses to Items 4 through 6 of the Schedule 13D, the Reporting Persons and certain other beneficial owners of Class A Common Stock named herein may be deemed to be members of a group under Section 13(d) of the Act by virtue of the Equityholders Agreement described in the Schedule 13D. Neither the filing of this Amendment nor any of its contents shall be deemed to constitute an admission by any Reporting Person that, except as expressly set forth herein, it has or shares beneficial ownership of any shares of Class A Common Stock held by any other person for purposes of Section 13(d) of the Act, or for any other purpose, and such beneficial ownership thereof is expressly disclaimed. |
** | See the footnotes to the table in Item 5(a)-(b) of this Amendment. |
CUSIP No.18538Q 105 | 13D | Page 11 of 44 Pages |
(1) |
Name of reporting person:
Comcast Wireless Investment VI, Inc. | |||||
(2) | Check the appropriate box if a member of a group
(a) ¨ (b) þ | |||||
(3) | SEC use only
| |||||
(4) | Source of funds:
AF | |||||
(5) | Check box if disclosure of legal proceedings is required pursuant to Items 2(d) or 2(e)
¨ | |||||
(6) | Citizenship or place of organization:
Delaware | |||||
Number of shares beneficially owned by each reporting person with |
(7) | Sole voting power:
0 | ||||
(8) | Shared voting power:
26,739,427* | |||||
(9) | Sole dispositive power:
0 | |||||
(10) | Shared dispositive power:
26,739,427* | |||||
(11) |
Aggregate amount beneficially owned by each reporting person:
26,739,427* | |||||
(12) |
Check box if the aggregate amount in Row (11) excludes certain shares
þ** | |||||
(13) |
Percent of class represented by amount in Row (11):
5.6%* | |||||
(14) |
Type of reporting person:
CO |
* | See discussion in Items 4 through 6 of the Schedule 13D. As more fully described in the responses to Items 4 through 6 of the Schedule 13D, the Reporting Persons and certain other beneficial owners of Class A Common Stock named herein may be deemed to be members of a group under Section 13(d) of the Act by virtue of the Equityholders Agreement described in the Schedule 13D. Neither the filing of this Amendment nor any of its contents shall be deemed to constitute an admission by any Reporting Person that, except as expressly set forth herein, it has or shares beneficial ownership of any shares of Class A Common Stock held by any other person for purposes of Section 13(d) of the Act, or for any other purpose, and such beneficial ownership thereof is expressly disclaimed. |
** | See the footnotes to the table in Item 5(a)-(b) of this Amendment. |
CUSIP No. 18538Q 105 | 13D | Page 12 of 44 Pages |
(1) |
Name of reporting person:
Time Warner Cable Inc. | |||||
(2) | Check the appropriate box if a member of a group
(a) ¨ (b) þ | |||||
(3) | SEC use only
| |||||
(4) | Source of funds:
WC | |||||
(5) | Check box if disclosure of legal proceedings is required pursuant to Items 2(d) or 2(e)
¨ | |||||
(6) | Citizenship or place of organization:
Delaware | |||||
Number of shares beneficially owned by each reporting person with |
(7) | Sole voting power:
0 | ||||
(8) | Shared voting power:
46,404,782* | |||||
(9) | Sole dispositive power:
0 | |||||
(10) | Shared dispositive power:
46,404,782* | |||||
(11) |
Aggregate amount beneficially owned by each reporting person:
46,404,782* | |||||
(12) |
Check box if the aggregate amount in Row (11) excludes certain shares
þ** | |||||
(13) |
Percent of class represented by amount in Row (11):
9.3%* | |||||
(14) |
Type of reporting person:
CO |
* | See discussion in Items 4 through 6 of the Schedule 13D. As more fully described in the responses to Items 4 through 6 of the Schedule 13D, the Reporting Persons and certain other beneficial owners of Class A Common Stock named herein may be deemed to be members of a group under Section 13(d) of the Act by virtue of the Equityholders Agreement described in the Schedule 13D. Neither the filing of this Amendment nor any of its contents shall be deemed to constitute an admission by any Reporting Person that, except as expressly set forth herein, it has or shares beneficial ownership of any shares of Class A Common Stock held by any other person for purposes of Section 13(d) of the Act, or for any other purpose, and such beneficial ownership thereof is expressly disclaimed. |
** | See the footnotes to the table in Item 5(a)-(b) of this Amendment. |
CUSIP No. 18538Q 105 | 13D | Page 13 of 44 Pages |
1. |
Name of reporting person:
Time Warner Cable LLC | |||||
2. | Check the appropriate box if a member of a group
(a) ¨ (b) þ | |||||
3. | SEC use only
| |||||
4. | Source of funds:
WC | |||||
5. | Check box if disclosure of legal proceedings is required pursuant to Items 2(d) or 2(e)
¨ | |||||
6. | Citizenship or place of organization:
Delaware | |||||
Number of shares beneficially owned by each reporting person with |
7. | Sole voting power:
0 | ||||
8. | Shared voting power:
46,404,782* | |||||
9. | Sole dispositive power:
0 | |||||
10. | Shared dispositive power:
46,404,782* | |||||
11. |
Aggregate amount beneficially owned by each reporting person:
46,404,782* | |||||
12. |
Check Box if the aggregate amount in Row (11) excludes certain shares
þ** | |||||
13. |
Percent of class represented by amount in Row (11):
9.3%* | |||||
14. |
Type of reporting person:
OO |
* | See discussion in Items 4 through 6 of the Schedule 13D. As more fully described in the responses to Items 4 through 6 of the Schedule 13D, the Reporting Persons and certain other beneficial owners of Class A Common Stock named herein may be deemed to be members of a group under Section 13(d) of the Act by virtue of the Equityholders Agreement described in the Schedule 13D. Neither the filing of this Amendment nor any of its contents shall be deemed to constitute an admission by any Reporting Person that, except as expressly set forth herein, it has or shares beneficial ownership of any shares of Class A Common Stock held by any other person for purposes of Section 13(d) of the Act, or for any other purpose, and such beneficial ownership thereof is expressly disclaimed. |
** | See the footnotes to the table in Item 5(a)-(b) of this Amendment. |
CUSIP No. 18538Q 105 | 13D | Page 14 of 44 Pages |
1. |
Name of reporting person:
TWC Wireless Holdings I LLC | |||||
2. | Check the appropriate box if a member of a group
(a) ¨ (b) þ | |||||
3. | SEC use only
| |||||
4. | Source of funds:
WC | |||||
5. | Check box if disclosure of legal proceedings is required pursuant to Items 2(d) or 2(e)
¨ | |||||
6. | Citizenship or place of organization:
Delaware | |||||
Number of shares beneficially owned by each reporting person with |
7. | Sole voting power:
0 | ||||
8. | Shared voting power:
15,468,261* | |||||
9. | Sole dispositive power:
0 | |||||
10. | Shared dispositive power:
15,468,261* | |||||
11. |
Aggregate amount beneficially owned by each reporting person:
15,468,261* | |||||
12. |
Check Box if the aggregate amount in Row (11) excludes certain shares
þ** | |||||
13. |
Percent of class represented by amount in Row (11):
3.3%* | |||||
14. |
Type of reporting person:
OO |
* | See discussion in Items 4 through 6 of the Schedule 13D. As more fully described in the responses to Items 4 through 6 of the Schedule 13D, the Reporting Persons and certain other beneficial owners of Class A Common Stock named herein may be deemed to be members of a “group” under Section 13(d) of the Act by virtue of the Equityholders Agreement described in the Schedule 13D. Neither the filing of this Amendment nor any of its contents shall be deemed to constitute an admission by any Reporting Person that, except as expressly set forth herein, it has or shares beneficial ownership of any shares of Class A Common Stock held by any other person for purposes of Section 13(d) of the Act, or for any other purpose, and such beneficial ownership thereof is expressly disclaimed. |
** | See the footnotes to the table in Item 5(a)-(b) of this Amendment. |
CUSIP No. 18538Q 105 | 13D | Page 15 of 44 Pages |
1. |
Name of reporting person:
TWC Wireless Holdings II LLC | |||||
2. | Check the appropriate box if a member of a group
(a) ¨ (b) þ | |||||
3. | SEC use only
| |||||
4. | Source of funds:
WC | |||||
5. | Check box if disclosure of legal proceedings is required pursuant to Items 2(d) or 2(e)
¨ | |||||
6. | Citizenship or place of organization:
Delaware | |||||
Number of shares beneficially owned by each reporting person with |
7. | Sole voting power:
0 | ||||
8. | Shared voting power:
15,468,261* | |||||
9. | Sole dispositive power:
0 | |||||
10. | Shared dispositive power:
15,468,261* | |||||
11. |
Aggregate amount beneficially owned by each reporting person:
15,468,261* | |||||
12. |
Check Box if the aggregate amount in Row (11) excludes certain shares
þ** | |||||
13. |
Percent of class represented by amount in Row (11):
3.3%* | |||||
14. |
Type of reporting person:
OO |
* | See discussion in Items 4 through 6 of the Schedule 13D. As more fully described in the responses to Items 4 through 6 of the Schedule 13D, the Reporting Persons and certain other beneficial owners of Class A Common Stock named herein may be deemed to be members of a group under Section 13(d) of the Act by virtue of the Equityholders Agreement described in the Schedule 13D. Neither the filing of this Amendment nor any of its contents shall be deemed to constitute an admission by any Reporting Person that, except as expressly set forth herein, it has or shares beneficial ownership of any shares of Class A Common Stock held by any other person for purposes of Section 13(d) of the Act, or for any other purpose, and such beneficial ownership thereof is expressly disclaimed. |
** | See the footnotes to the table in Item 5(a)-(b) of this Amendment. |
CUSIP No. 18538Q 105 | 13D | Page 16 of 44 Pages |
(1) |
Name of reporting person:
TWC Wireless Holdings III LLC | |||||
(2) | Check the appropriate box if a member of a group
(a) ¨ (b) þ | |||||
(3) | SEC use only
| |||||
(4) | Source of funds:
WC | |||||
(5) | Check box if disclosure of legal proceedings is required pursuant to Items 2(d) or 2(e)
¨ | |||||
(6) | Citizenship or place of organization:
Delaware | |||||
Number of shares beneficially owned by each reporting person with |
(7) | Sole voting power:
0 | ||||
(8) | Shared voting power:
15,468,260* | |||||
(9) | Sole dispositive power:
0 | |||||
(10) | Shared dispositive power:
15,468,260* | |||||
(11) |
Aggregate amount beneficially owned by each reporting person:
15,468,260* | |||||
(12) |
Check box if the aggregate amount in Row (11) excludes certain shares
þ** | |||||
(13) |
Percent of class represented by amount in Row (11):
3.3%* | |||||
(14) |
Type of reporting person:
OO |
* | See discussion in Items 4 through 6 of the Schedule 13D. As more fully described in the responses to Items 4 through 6 of the Schedule 13D, the Reporting Persons and certain other beneficial owners of Class A Common Stock named herein may be deemed to be members of a group under Section 13(d) of the Act by virtue of the Equityholders Agreement described in the Schedule 13D. Neither the filing of this Amendment nor any of its contents shall be deemed to constitute an admission by any Reporting Person that, except as expressly set forth herein, it has or shares beneficial ownership of any shares of Class A Common Stock held by any other person for purposes of Section 13(d) of the Act, or for any other purpose, and such beneficial ownership thereof is expressly disclaimed. |
** | See the footnotes to the table in Item 5(a)-(b) of this Amendment. |
CUSIP No. 18538Q 105 | 13D | Page 17 of 44 Pages |
(1) |
Name of reporting person:
Bright House Networks, LLC | |||||
(2) | Check the appropriate box if a member of a group
(a) ¨ (b) þ | |||||
(3) | SEC use only
| |||||
(4) | Source of funds:
WC | |||||
(5) | Check box if disclosure of legal proceedings is required pursuant to Items 2(d) or 2(e)
¨ | |||||
(6) | Citizenship or place of organization:
Delaware | |||||
Number of shares beneficially owned by each reporting person with |
(7) | Sole voting power:
0 | ||||
(8) | Shared voting power:
8,474,440* | |||||
(9) | Sole dispositive power:
0 | |||||
(10) | Shared dispositive power:
8,474,440* | |||||
(11) |
Aggregate amount beneficially owned by each reporting person:
8,474,440* | |||||
(12) |
Check box if the aggregate amount in Row (11) excludes certain shares
þ** | |||||
(13) |
Percent of class represented by amount in Row (11):
1.8%* | |||||
(14) |
Type of reporting person:
OO |
* | See discussion in Items 4 through 6 of the Schedule 13D. As more fully described in the responses to Items 4 through 6 of the Schedule 13D, the Reporting Persons and certain other beneficial owners of Class A Common Stock named herein may be deemed to be members of a group under Section 13(d) of the Act by virtue of the Equityholders Agreement described in the Schedule 13D. Neither the filing of this Amendment nor any of its contents shall be deemed to constitute an admission by any Reporting Person that, except as expressly set forth herein, it has or shares beneficial ownership of any shares of Class A Common Stock held by any other person for purposes of Section 13(d) of the Act, or for any other purpose, and such beneficial ownership thereof is expressly disclaimed. |
** | See the footnotes to the table in Item 5(a)-(b) of this Amendment. |
CUSIP No. 18538Q 105 | 13D | Page 18 of 44 Pages |
(1) |
Name of reporting person:
BHN Spectrum Investments, LLC | |||||
(2) | Check the appropriate box if a member of a group
(a) ¨ (b) þ | |||||
(3) | SEC use only
| |||||
(4) | Source of funds:
WC | |||||
(5) | Check box if disclosure of legal proceedings is required pursuant to Items 2(d) or 2(e)
¨ | |||||
(6) | Citizenship or place of organization:
Delaware | |||||
Number of shares beneficially owned by each reporting person with |
(7) | Sole voting power:
0 | ||||
(8) | Shared voting power:
8,474,440* | |||||
(9) | Sole dispositive power:
0 | |||||
(10) | Shared dispositive power:
8,474,440* | |||||
(11) |
Aggregate amount beneficially owned by each reporting person:
8,474,440* | |||||
(12) |
Check box if the aggregate amount in Row (11) excludes certain shares
þ** | |||||
(13) |
Percent of class represented by amount in Row (11):
1.8%* | |||||
(14) |
Type of reporting person:
OO |
* | See discussion in Items 4 through 6 of the Schedule 13D. As more fully described in the responses to Items 4 through 6 of the Schedule 13D, the Reporting Persons and certain other beneficial owners of Class A Common Stock named herein may be deemed to be members of a group under Section 13(d) of the Act by virtue of the Equityholders Agreement described in the Schedule 13D. Neither the filing of this Amendment nor any of its contents shall be deemed to constitute an admission by any Reporting Person that, except as expressly set forth herein, it has or shares beneficial ownership of any shares of Class A Common Stock held by any other person for purposes of Section 13(d) of the Act, or for any other purpose, and such beneficial ownership thereof is expressly disclaimed. |
** | See the footnotes to the table in Item 5(a)-(b) of this Amendment. |
CUSIP No. 18538Q 105 | 13D | Page 19 of 44 Pages |
(1) |
Name of reporting person:
Newhouse Broadcasting Corporation | |||||
(2) | Check the appropriate box if a member of a group
(a) ¨ (b) þ | |||||
(3) | SEC use only
| |||||
(4) | Source of funds:
WC | |||||
(5) | Check box if disclosure of legal proceedings is required pursuant to Items 2(d) or 2(e)
¨ | |||||
(6) | Citizenship or place of organization:
New York | |||||
Number of shares beneficially owned by each reporting person with |
(7) | Sole voting power:
0 | ||||
(8) | Shared voting power:
8,474,440* | |||||
(9) | Sole dispositive power:
0 | |||||
(10) | Shared dispositive power:
8,474,440* | |||||
(11) |
Aggregate amount beneficially owned by each reporting person:
8,474,440* | |||||
(12) |
Check box if the aggregate amount in Row (11) excludes certain shares
þ** | |||||
(13) |
Percent of class represented by amount in Row (11):
1.8%* | |||||
(14) |
Type of reporting person:
CO |
* | See discussion in Items 4 through 6 of the Schedule 13D. As more fully described in the responses to Items 4 through 6 of the Schedule 13D, the Reporting Persons and certain other beneficial owners of Class A Common Stock named herein may be deemed to be members of a group under Section 13(d) of the Act by virtue of the Equityholders Agreement described in the Schedule 13D. Neither the filing of this Amendment nor any of its contents shall be deemed to constitute an admission by any Reporting Person that, except as expressly set forth herein, it has or shares beneficial ownership of any shares of Class A Common Stock held by any other person for purposes of Section 13(d) of the Act, or for any other purpose, and such beneficial ownership thereof is expressly disclaimed. |
** | See the footnotes to the table in Item 5(a)-(b) of this Amendment. |
CUSIP No. 18538Q 105 | 13D | Page 20 of 44 Pages |
(1) |
Name of reporting person:
Google Inc. | |||||
(2) | Check the appropriate box if a member of a group
(a) ¨ (b) þ | |||||
(3) | SEC use only
| |||||
(4) | Source of funds:
WC | |||||
(5) | Check box if disclosure of legal proceedings is required pursuant to Items 2(d) or 2(e)
þ | |||||
(6) | Citizenship or place of organization:
Delaware | |||||
Number of shares beneficially owned by each reporting person with |
(7) | Sole voting power:
29,411,765 | ||||
(8) | Shared voting power:
* | |||||
(9) | Sole dispositive power:
29,411,765 | |||||
(10) | Shared dispositive power:
0 | |||||
(11) |
Aggregate amount beneficially owned by each reporting person:
29,411,765* | |||||
(12) |
Check box if the aggregate amount in Row (11) excludes certain shares
þ** | |||||
(13) |
Percent of class represented by amount in Row (11):
6.5%* | |||||
(14) |
Type of reporting person:
CO |
* | See discussion in Items 4 through 6 of the Schedule 13D. As more fully described in the responses to Items 4 through 6 of the Schedule 13D, the Reporting Persons and certain other beneficial owners of Class A Common Stock named herein may be deemed to be members of a group under Section 13(d) of the Act by virtue of the Equityholders Agreement described in the Schedule 13D. Neither the filing of this Amendment nor any of its contents shall be deemed to constitute an admission by any Reporting Person that, except as expressly set forth herein, it has or shares beneficial ownership of any shares of Class A Common Stock held by any other person for purposes of Section 13(d) of the Act, or for any other purpose, and such beneficial ownership thereof is expressly disclaimed. |
** | See the footnotes to the table in Item 5(a)-(b) of this Amendment. |
CUSIP No. 18538Q 105 | 13D | Page 21 of 44 Pages |
(1) |
Name of reporting person:
Eagle River Holdings, LLC | |||||
(2) | Check the appropriate box if a member of a group
(a) ¨ (b) þ | |||||
(3) | SEC use only
| |||||
(4) | Source of funds:
WC | |||||
(5) | Check box if disclosure of legal proceedings is required pursuant to Items 2(d) or 2(e)
¨ | |||||
(6) | Citizenship or place of organization:
Washington | |||||
Number of shares beneficially owned by each reporting person with |
(7) | Sole voting power:
34,026,470 | ||||
(8) | Shared voting power:
* | |||||
(9) | Sole dispositive power:
34,026,470 | |||||
(10) | Shared dispositive power:
* | |||||
(11) |
Aggregate amount beneficially owned by each reporting person:
34,026,470* | |||||
(12) |
Check box if the aggregate amount in Row (11) excludes certain shares
þ** | |||||
(13) |
Percent of class represented by amount in Row (11):
7.5%* | |||||
(14) |
Type of reporting person:
OO |
* | See discussion in Items 4 through 6 of the Schedule 13D. As more fully described in the responses to Items 4 through 6 of the Schedule 13D, the Reporting Persons and certain other beneficial owners of Class A Common Stock named herein may be deemed to be members of a group under Section 13(d) of the Act by virtue of the Equityholders Agreement described in the Schedule 13D. Neither the filing of this Amendment nor any of its contents shall be deemed to constitute an admission by any Reporting Person that, except as expressly set forth herein, it has or shares beneficial ownership of any shares of Class A Common Stock held by any other person for purposes of Section 13(d) of the Act, or for any other purpose, and such beneficial ownership thereof is expressly disclaimed. |
** | See the footnotes to the table in Item 5(a)-(b) of this Amendment. |
CUSIP No. 18538Q 105 | 13D | Page 22 of 44 Pages |
(1) |
Name of reporting person:
Craig O. McCaw | |||||
(2) | Check the appropriate box if a member of a group
(a) ¨ (b) þ | |||||
(3) | SEC use only
| |||||
(4) | Source of funds:
OO | |||||
(5) | Check box if disclosure of legal proceedings is required pursuant to Items 2(d) or 2(e)
¨ | |||||
(6) | Citizenship or place of organization:
United States | |||||
Number of shares beneficially owned by each reporting person with: |
(7) | Sole voting power:
34,042,970 | ||||
(8) | Shared voting power:
* | |||||
(9) | Sole dispositive power:
34,042,970 | |||||
(10) | Shared dispositive power:
0 | |||||
(11) |
Aggregate amount beneficially owned by each reporting person:
34,042,970* | |||||
(12) |
Check box if the aggregate amount in Row (11) excludes certain shares
þ** | |||||
(13) |
Percent of class represented by amount in Row (11):
7.5%* | |||||
(14) |
Type of reporting person:
IN |
* | See discussion in Items 4 through 6 of the Schedule 13D. As more fully described in the responses to Items 4 through 6 of the Schedule 13D, the Reporting Persons and certain other beneficial owners of Class A Common Stock named herein may be deemed to be members of a group under Section 13(d) of the Act by virtue of the Equityholders Agreement described in the Schedule 13D. Neither the filing of this Amendment nor any of its contents shall be deemed to constitute an admission by any Reporting Person that, except as expressly set forth herein, it has or shares beneficial ownership of any shares of Class A Common Stock held by any other person for purposes of Section 13(d) of the Act, or for any other purpose, and such beneficial ownership thereof is expressly disclaimed. |
** | See the footnotes to the table in Item 5(a)-(b) of this Amendment. |
CUSIP No. 18538Q 105 | 13D | Page 23 of 44 Pages |
This Amendment No. 8 (this Amendment) amends and supplements the Statement on Schedule 13D which was jointly filed on December 5, 2008, as amended by Amendment No. 1 to the Statement on Schedule 13D which was jointly filed on February 27, 2009, as amended by Amendment No. 2 to the Statement on Schedule 13D which was jointly filed on November 12, 2009, as amended by Amendment No. 3 to the Statement on Schedule 13D which was jointly filed on December 22, 2009, as amended by Amendment No. 4 to the Statement on Schedule 13D which was jointly filed on December 7, 2010, as amended by Amendment No. 5 to the Statement on Schedule 13D which was jointly filed on December 14, 2010, as amended by Amendment No. 6 to the Statement on Schedule 13D which was jointly filed on May 13, 2011 and as amended by Amendment No. 7 to the Statement on Schedule 13D which was jointly filed on June 8, 2011 (collectively, the Schedule 13D) on behalf of Sprint Nextel Corporation, a Kansas corporation (Sprint), Sprint HoldCo, LLC, a Delaware limited liability company (Sprint HoldCo and together with Sprint, the Sprint Entities), Comcast Corporation, a Pennsylvania corporation (Comcast), 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), Comcast Wireless Investment VI, Inc., a Delaware corporation (Comcast VI and, collectively with Comcast, Comcast I, Comcast II, Comcast III and Comcast IV, the Comcast Entities), Time Warner Cable Inc., a Delaware corporation (TWC), Time Warner Cable LLC, a Delaware limited liability company (TWC LLC), 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, collectively with TWC, TWC LLC, TWC I and TWC II, the TWC Entities), Bright House Networks, LLC, a Delaware limited liability company (BHN), BHN Spectrum Investments, LLC, a Delaware limited liability company (BHN Spectrum), Newhouse Broadcasting Corporation, a New York corporation (NBCo, and collectively with BHN and BHN Spectrum, the BHN Entities), Google Inc., a Delaware corporation (Google), Eagle River Holdings, LLC, a Washington limited liability company (ERH) and Craig O. McCaw, an individual (Mr. McCaw and, together with ERH, the ERH Entities), with respect to the Class A common stock, par value $0.0001 per share (the Class A Common Stock), of Clearwire Corporation, a Delaware corporation (Clearwire or the Issuer). We refer to the Sprint Entities, the Comcast Entities, the TWC Entities, the BHN Entities, Google and the ERH Entities collectively as the Reporting Persons and to each as a Reporting Person. All capitalized terms used in this Amendment and not defined herein have the meanings ascribed to such terms in the Schedule 13D.
Item 3. Source and Amount of Funds or Other Consideration.
Item 3 of the Schedule 13D is amended and supplemented by adding the following to the end of the disclosure:
The source of funds or other consideration in the amount of $331,399,761 for the acquisition of the Issuers securities pursuant to the Commitment Agreement and the 2011 Investment Agreement, as described in Item 4, was from Sprints working capital. The source of funds or other consideration for the Note, as described in Item 4, is expected to be from Sprints working capital. The amount of funds for the Note, if executed and delivered, would be $150,000,000. Amounts set forth in the foregoing sentences are in addition to the amounts previously disclosed in Item 3 of the Schedule 13D. Capitalized terms used in this Item 3, but not otherwise defined herein, shall have the meanings ascribed to them in Item 4.
Item 4. Purpose of Transaction.
Item 4 of the Schedule 13D is amended and supplemented by adding the following to the end of the disclosure under a new subheading:
Commitment Agreement and Related Agreements
On November 30, 2011, the Sprint Entities, Clearwire and Clearwire Communications (together with Clearwire, the Clearwire Parties) entered into a Commitment Agreement (the Commitment Agreement). Among other things, the Commitment Agreement provides that, in connection with an offering by the Clearwire Parties of New Securities (as defined in the Equityholders Agreement) with gross proceeds of at least $400,000,000 (inclusive of the amounts invested by Sprint HoldCo as described below) (the Equity Offering) by the Clearwire Parties:
| with respect to up to $700,000,000 of the gross proceeds of such Equity Offering (inclusive of the amounts invested by Sprint HoldCo), Sprint HoldCo would fully exercise its preemptive rights under Section 3.5 of the Equityholders Agreement; and |
| with respect to any amount of gross proceeds of such Equity Offering in excess of $700,000,000 (inclusive of the amounts invested by Sprint HoldCo), Sprint HoldCo may (but would not be obligated to) exercise all or any part of its preemptive rights under Section 3.5 of the Equityholders Agreement. |
CUSIP No. 18538Q 105 | 13D | Page 24 of 44 Pages |
The terms of the Commitment Agreement provide that Sprint HoldCo would receive at least the same rights received by any other participant in the Equity Offering (but it would only be entitled to a commitment fee if the Clearwire Parties pay a commitment fee to all other participants in such Equity Offering). In connection with the Equity Offering, the Sprint Entities agreed to:
| execute a written consent to an amendment to Clearwires charter increasing the number of authorized shares of Class A Common Stock and Class B Common Stock (the Charter Amendment); |
| vote, at any meeting of stockholders and to the extent required by the rules of the Nasdaq Global Market, in favor of any payments by Clearwire of any customary fees required to be paid to an unaffiliated third party in respect of a backstop commitment by such third party to purchase securities in such Equity Offering; and |
| if requested by any managing underwriter or backstop purchaser of such Equity Offering, execute a customary lock-up agreement on the date of consummation of the Equity Offering with respect to the transfer by the Sprint Entities of Class A Common Stock or Class B Common Stock, which lock-up agreement would provide for a lock-up period not to exceed ninety days. |
In addition, pursuant to the Commitment Agreement, Clearwire has agreed to use commercially reasonable best efforts to do the following:
| to consummate at the earliest practicable time after the Equity Offering an offering of first lien senior secured debt for an aggregate principal amount equal to the maximum amount of first lien senior secured indebtedness that Clearwire Communications is permitted to incur or issue in compliance with its outstanding debt agreements; |
| subject to certain exceptions relating to the fiduciary duties of the members of the board of directors of Clearwire, effect sales of spectrum, other assets and/or equity of the Clearwire Parties, or take such other actions, as may be necessary from time to time to permit the Clearwire Parties to meet their obligations as they become due and to maintain a reasonable level of liquidity in light of their accrued and committed obligations; and |
| to obtain and deliver, or cause to be delivered, to the Sprint Entities settlement and release agreements in the form attached to the Commitment Agreement from each of the Equityholders (other than Sprint HoldCo). |
Pursuant to a letter agreement, dated November 30, 2011, entered into with the Clearwire Parties (the Letter Agreement), the Sprint Entities also agreed that upon the exercise of preemptive rights by Sprint HoldCo under Section 3.5 of the Equityholders Agreement, as contemplated by the Commitment Agreement, Sprint HoldCo would purchase only shares of Class B Common Stock and a corresponding number of Clearwire Communications Class B Common Interests and will not take any action, or exercise any right, to cause such shares to be converted into shares of Class A Common Stock, unless and until the Charter Amendment becomes effective. The Clearwire Parties have agreed to use their commercially reasonable best efforts to cause the Charter Amendment to become effective as soon as reasonably practicable.
Concurrently with the Commitment Agreement, Sprint Spectrum L.P., a wholly owned subsidiary of Sprint (Sprint Spectrum), and Clearwire Communications entered into an amendment (the MVNO Agreement Amendment) to the 4G MVNO Agreement, dated November 28, 2008, by and among Clearwire Communications, Comcast MVNO II, LLC, TWC Wireless, LLC, BHN Spectrum Investments, LLC and Sprint Spectrum L.P. d/b/a Sprint, as amended, and related agreements (the MVNO Agreement). The Commitment Agreement and the MVNO Agreement Amendment provide that, on January 3, 2012, Sprint Spectrum will loan $150,000,000 of unsecured indebtedness to Clearwire Communications pursuant to a promissory note in the form attached to the Commitment Agreement (the Note). The principal amount of the Note will accrue interest at a rate of 11.50% per annum and will mature as follows: (i) $75 million of the principal amount will be due and payable on January 2, 2013; and (ii) the remaining $75 million of the principal amount will be due and payable on January 2, 2014. If and to the extent any portion of the loan or any interest thereon or other amounts payable under the Note remain due and owing by Clearwire Communications on either January 2, 2013 or January 2, 2014, and any payments are then required to be paid by Sprint Spectrum to Clearwire Communications pursuant to the MVNO Agreement (any such payments, the Sprint Payments), then Sprint Spectrum, at its sole option, may retain, offset and recoup any such Sprint Payments against such payments then due from Clearwire Communications under the Note. The Note has customary events of default and acceleration provisions as well as events of default and acceleration relating to a material breach under, or termination of, the MVNO Agreement.
CUSIP No. 18538Q 105 | 13D | Page 25 of 44 Pages |
Public Offering and the 2011 Investment Agreement
On December 7, 2011, Clearwire announced that it (i) was offering $350.0 million of its Class A Common Stock in a registered public offering (the Public Offering) at a price of $2.00 per share to the public and (ii) in connection with the Public Offering, it granted the underwriters of the Public Offering a 30-day option to purchase up to an additional $45.0 million of its Class A Common Stock (the Overallotment Option). Clearwire subsequently announced that the underwriters of the Public Offering exercised the Overallotment Option in full. The Public Offering constituted an Equity Offering within the meaning of the Commitment Agreement. Consequently, pursuant to a letter dated December 12, 2011 (the Sprint Preemptive Rights Exercise Letter) and in accordance with the Commitment Agreement, Sprint HoldCo exercised its preemptive rights under Section 3.5 of the Equityholders Agreement to purchase its preemptive rights pro rata share (approximately 49.6%) of the Class A Common Stock issued in the Public Offering representing gross proceeds of $700 million (inclusive of the amount to be invested by Sprint HoldCo). On December 13, 2011, Sprint HoldCo purchased (the Purchase) 173,635,000 shares of Class B Common Stock and a corresponding number of Clearwire Communications Class B Common Interests, for an aggregate purchase price of $331,399,761. In accordance with the Commitment Agreement, the Purchase was made pursuant to an investment agreement, dated December 13, 2011, by and among Sprint HoldCo, Clearwire and Clearwire Communications (the 2011 Investment Agreement). The 2011 Investment Agreement contains representations and warranties of Clearwire and Clearwire Communications that are substantially similar to those provided to the underwriters of the Public Offering in an underwriting agreement. As a result of the Purchase, Sprint HoldCo has fully satisfied its commitment to purchase securities in the Equity Offering under the Commitment Agreement.
In addition, Item 4 of the Schedule 13D is amended and supplemented by replacing the second section of Item 4 in its entirety with the following:
The foregoing summaries of certain provisions of the Transaction Agreement, Investment Agreement, Stockholders Consent, Commitment Agreement, Letter Agreement, Note, Sprint Preemptive Rights Exercise Letter and 2011 Investment Agreement are not intended to be complete and are qualified in their entirety by reference to the full text of such documents. The Transaction Agreement is filed as Exhibit 99.1 hereto and is incorporated herein by reference, the Investment Agreement is filed as Exhibit 99.8 hereto and is incorporated herein by reference, the Stockholders Consent is filed as Exhibit 99.9 hereto and is incorporated herein by reference, the Commitment Agreement (including the form of Note attached as Exhibit B thereto) is filed as Exhibit 99.15 hereto and is incorporated herein by reference, the Letter Agreement is filed as Exhibit 99.16 hereto and is incorporated herein by reference, the Sprint Preemptive Rights Exercise Letter is filed as Exhibit 99.17 hereto and is incorporated herein by reference, and the 2011 Investment Agreement is filed as Exhibit 99.18 hereto and is incorporated herein by reference.
Each Reporting Persons beneficial ownership of the Class A Common Stock reported herein was acquired for investment purposes.
Executive officers of Sprint and nominees of Sprint, Comcast, TWC, Google, Intel and ERH may serve or be nominated to serve as members of the board of directors of the Issuer. As a result of such Reporting Persons ongoing review and evaluation of the business of the Issuer, these Reporting Persons may, through such executive officers and such Reporting Persons nominees representation on the board of directors of the Issuer and otherwise, continue to communicate with the board of directors, members of management and/or other stockholders of the Issuer from time to time with respect to operational, strategic, financial or governance matters or otherwise work with management and the board of directors to create stockholder value.
Except as set forth in this Item 4, the Transaction Agreement, the Equityholders Agreement (see Item 6), the Commitment Agreement (see Item 6), the Letter Agreement (see Item 6), or the Sprint Preemptive-Rights Exercise Letter (see Item 6), none of (i) the Reporting Persons, (ii) to the Sprint Entities knowledge, the persons set forth on Appendix A-1 and A-2 hereto, (iii) to the Comcast Entities knowledge, the persons set forth on Appendices B-1 through B-7 hereto, (iv) to the TWC Entities knowledge, the persons set forth on Appendices C-1 through C-5 hereto, (v) to the BHN Entities knowledge, the persons set forth on Appendices D-1 through D-3 hereto, and (vi) to Googles knowledge, the persons set forth on Appendix E hereto, has any plans or proposals that relate to or would result in any of the actions specified in clauses (a) through (j) of Item 4 of Schedule 13D (although each Reporting Person reserves the right to develop such plans).
CUSIP No. 18538Q 105 | 13D | Page 26 of 44 Pages |
Item 5. Interest in Securities of the Issuer.
Item 5(a), (b) and (c) of the Schedule 13D are hereby replaced in their entirety with the following:
(a)-(b) As of December 16, 2011 and after giving effect to the transactions identified in Item 5(c), each Reporting Person may be deemed to have beneficial ownership (within the meaning of Rule 13d-3 under the Act) and shared power to vote or direct the vote of up to the amounts listed in the table below and may be deemed to constitute a group under Section 13(d) of the Act.
Reporting Person (1): | Class A Common Stock (2) |
% of Class A (2) |
Class B Common Stock |
% of Class B |
% Voting |
|||||||||||||||
Sprint Entities (3) |
627,945,914 | 58.1 | % | 627,945,914 | 74.8 | % | 48.6 | % | ||||||||||||
Comcast (4) |
88,504,132 | 16.4 | % | 88,504,132 | 10.5 | % | 6.9 | % | ||||||||||||
Comcast I (5) |
12,352,941 | 2.7 | % | 12,352,941 | 1.5 | % | 1.0 | % | ||||||||||||
Comcast II (5) |
12,352,941 | 2.7 | % | 12,352,941 | 1.5 | % | 1.0 | % | ||||||||||||
Comcast III (5) |
12,352,941 | 2.7 | % | 12,352,941 | 1.5 | % | 1.0 | % | ||||||||||||
Comcast IV (5) |
12,352,941 | 2.7 | % | 12,352,941 | 1.5 | % | 1.0 | % | ||||||||||||
Comcast V (5) |
12,352,941 | 2.7 | % | 12,352,941 | 1.5 | % | 1.0 | % | ||||||||||||
Comcast VI (6) |
26,739,427 | 5.6 | % | 26,739,427 | 3.2 | % | 2.1 | % | ||||||||||||
ERH (7) |
34,026,470 | 7.5 | % | 2,728,512 | * | 2.6 | % | |||||||||||||
Google (8) |
29,411,765 | 6.5 | % | | | 2.3 | % | |||||||||||||
TWC (9) |
46,404,782 | 9.3 | % | 46,404,782 | 5.5 | % | 3.6 | % | ||||||||||||
TWC LLC (9) |
46,404,782 | 9.3 | % | 46,404,782 | 5.5 | % | 3.6 | % | ||||||||||||
TWC I (10) |
15,468,261 | 3.3 | % | 15,468,261 | 1.8 | % | 1.2 | % | ||||||||||||
TWC II (10) |
15,468,261 | 3.3 | % | 15,468,261 | 1.8 | % | 1.2 | % | ||||||||||||
TWC III (10) |
15,468,260 | 3.3 | % | 15,468,260 | 1.8 | % | 1.2 | % | ||||||||||||
Craig O. McCaw (11) |
34,042,970 | 7.5 | % | 2,728,512 | * | 2.6 | % | |||||||||||||
BHN Entities (12) |
8,474,440 | 1.8 | % | 8,474,440 | 1.0 | % | * |
* | Less than 1% |
(1) By virtue of the Equityholders Agreement, each of the Reporting Persons, together with the Intel Entities, Intel Capital, Intel Cayman, and Middlefield, may be deemed to be a member of a group under Section 13(d) of the Act, which may be deemed to beneficially own, have shared power to vote or direct the vote over and have shared dispositive power over 627,945,914 shares of Class A Common Stock beneficially owned by the Sprint Entities, 95,355,178 shares of Class A Common Stock beneficially owned by Intel (which includes 26,377,033 shares of Class A Common Stock held by Intel Capital, 3,333,333 shares of Class A Common Stock held by Intel Cayman, and 65,644,812 shares of Class B Common Stock held by the Intel Entities), 88,504,132 shares of Class A Common Stock beneficially owned by the Comcast Entities, 34,026,470 shares of Class A Common Stock beneficially owned by ERH (which includes 375,000 shares of Class A Common Stock issuable on exercise of warrants issued to ERH), 29,411,765 shares of Class A Common Stock beneficially owned by Google, 46,404,782 shares of Class A Common Stock beneficially owned by the TWC Entities and 8,474,440 shares of Class A Common Stock beneficially owned by the BHN Entities. As described in Item 6 of the Schedule 13D, the Equityholders Agreement includes a voting agreement under which such Equityholders and their respective affiliates share the ability to elect a majority of the Issuers directors. The persons listed in the table disclaim beneficial ownership of the shares of capital stock beneficially owned by such other Equityholders (other than the shares of capital stock beneficially owned by their affiliates).
(2) Shares of Class A Common Stock beneficially owned and the respective percentages of beneficial ownership of Class A Common Stock assumes the conversion of all shares of Class B Common Stock beneficially owned by such person or entity into Class A Common Stock, and the exercise of all options, warrants and other securities convertible into common stock beneficially owned by such person or entity currently exercisable or exercisable within 60 days of December 16, 2011. Shares issuable pursuant to the conversion of Class B Common Stock or the exercise of stock options and warrants exercisable within 60 days are deemed outstanding and held by the holder of such shares of Class B Common Stock, options or warrants for computing the percentage of outstanding common stock beneficially owned by such person, but are not deemed outstanding for computing the percentage of outstanding common stock beneficially owned by any other person. The respective percentages of beneficial ownership of Class A Common Stock are based on 452,214,513 shares of Class A Common Stock, comprised of 250,964,513 shares of Class A Common Stock outstanding on December 12, 2011 plus 201,250,000 shares of Class A Common Stock issued in the Public Offering.
CUSIP No. 18538Q 105 | 13D | Page 27 of 44 Pages |
(3) Consists of 627,945,914 shares of Class B Common Stock beneficially owned by Sprint HoldCo. As described in Item 5(c), in connection with the Public Offering and its obligations under the Commitment Agreement, Sprint HoldCo purchased 173,635,000 shares of Class B Common Stock and a corresponding number of Clearwire Communications Class B Common Interests on December 13, 2011.
(4) Consists of 88,504,132 shares of Class B Common Stock beneficially owned by the Comcast Entities. By virtue of the fact that each of Comcast I, Comcast II, Comcast III, Comcast IV, Comcast V and Comcast VI is a wholly-owned subsidiary of Comcast, Comcast may be deemed to have shared voting and dispositive power with respect to the shares of Class B Common Stock owned by each of Comcast I, Comcast II, Comcast III, Comcast IV, Comcast V and Comcast VI.
(5) Consists of 12,352,941 shares of Class B Common Stock beneficially owned by each of Comcast I, Comcast II, Comcast III, Comcast IV and Comcast V.
(6) Consists of 26,739,427 shares of Class B Common Stock beneficially owned by Comcast VI.
(7) Consists of 30,922,958 shares of Class A Common Stock beneficially owned by ERH, 375,000 shares of Class A Common Stock issuable on exercise of warrants, and 2,728,512 shares of Class B Common beneficially owned by ERH. ERH is controlled by Mr. McCaw. The manager of ERH is Eagle River Inc., an entity controlled by and wholly-owned by Mr. McCaw.
(8) Consists of 29,411,765 shares of Class A Common Stock beneficially owned by Google.
(9) Consists of 46,404,782 shares of Class B Common Stock beneficially owned by the TWC Entities. By virtue of the fact that each of TWC I, TWC II and TWC III is a wholly-owned subsidiary of TWC and TWC LLC, TWC and TWC LLC may be deemed to have shared voting and dispositive power with respect to the shares of Class B Common Stock owned by each of TWC I, TWC II and TWC III.
(10) Consists of 15,468,261, 15,468,261, and 15,468,260 shares of Class B Common Stock beneficially owned by TWC I, TWC II, and TWC III, respectively.
(11) Consists of 16,500 shares of Class A Common Stock beneficially owned by Mr. McCaw, 30,922,958 shares of Class A Common Stock beneficially owned by ERH, 375,000 shares of Class A Common Stock issuable on exercise of warrants issued to ERH, and 2,728,512 shares of Class B Common.
(12) | Consists of 8,474,440 shares of Class B Common Stock beneficially owned by the BHN Entities. |
Except as set forth or incorporated herein or in the Appendices to the Schedule 13D, none of (i) the Reporting Persons, (ii) to the Sprint Entities knowledge, the persons set forth on Appendix A-1 and A-2 of the Schedule 13D, (iii) to the Comcast Entities knowledge, the persons set forth on Appendices B-1 through B-7 of the Schedule 13D, (iv) to the TWC Entities knowledge, the persons set forth on Appendices C-1 through C-5 of the Schedule 13D, (v) to the BHN Entities knowledge, the persons set forth on Appendices D-1 through D-3 of the Schedule 13D, and (vi) to Googles knowledge, the persons set forth on Appendix E of the Schedule 13D, beneficially owns any shares of Class A Common Stock as of December 16, 2011.
In addition to the beneficial ownership of the Reporting Persons described herein, the Intel Entities, Intel Capital, Intel Cayman and Middlefield may be deemed to be members of a group under Section 13(d) of the Act with the Reporting Persons by virtue of the Equityholders Agreement and have reported their beneficial ownership of securities of the Issuer separately, including the disclosure contained in Amendment No. 9 to Statement on Schedule 13D filed on December 16, 2011 (the Intel 13D/A). The Intel 13D/A reports beneficial ownership of 94,076,878 shares of Class A Common Stock (which consists of 25,098,733 shares of Class A Common Stock held by Intel Capital, 3,333,333 shares of Class A Common Stock held by Intel Cayman and 65,644,812 shares of Class B Common Stock held by the Intel Entities), representing 18.2% of the Class A Common Stock.
(c) In connection with the Public Offering and pursuant to the Sprint Entities obligations under the Commitment Agreement, on December 13, 2011 Sprint HoldCo purchased 173,635,000 shares of Class B Common Stock and a corresponding number of Clearwire Communications Class B Common Interests. These transactions are reflected in the beneficial ownership of the Sprint Entities reported in this Amendment. The information set forth under the heading Commitment Agreement and Related Agreements and Public Offering and the 2011 Investment Agreement in Item 4 of this Schedule 13D is hereby incorporated by reference.
Further, Eagle River previously held a warrant to purchase 613,333 shares of Class A Common Stock, which warrant expired by its terms on May 17, 2011. In addition, Mr. McCaw previously held an option to purchase 1,666,666 shares of Class A Common Stock, which option expired by its terms on March 31, 2011. The expiration of the warrant held by Eagle River and the stock option held by Mr. McCaw are reflected in the beneficial ownership of Eagle River and Mr. McCaw reported in this Amendment.
CUSIP No. 18538Q 105 | 13D | Page 28 of 44 Pages |
Except as set forth or incorporated herein or in the Appendices to the Schedule 13D, none of (i) the Reporting Persons, (ii) to the Sprint Entities knowledge, the persons set forth on Appendices A-1 and A-2 of the Schedule 13D, (iii) to the Comcast Entities knowledge, the persons set forth on Appendices B-1 through B-7 of the Schedule 13D, (iv) to the TWC Entities knowledge, the persons set forth on Appendices C-1 through C-5 of the Schedule 13D, (v) to the BHN Entities knowledge, the persons set forth on Appendices D-1 through D-3 of the Schedule 13D, and (vi) to Googles knowledge, the persons set forth on Appendix E of the Schedule 13D, has effected any transaction in Class A Common Stock during the 60 days prior to December 16, 2011.
Item 6. Contracts, Arrangements, Understandings or Relationships With Respect to Securities of the Issuer.
Item 6 of the Schedule 13D is amended and supplemented by adding the following to the end of the disclosure under the subheading Amendment to the Equityholders Agreement under a new subheading Commitment Agreement and Related Agreements:
The information set forth under the heading Commitment Agreement and Related Agreements in Item 4 of this Schedule 13D is hereby incorporated by reference.
Item 6 of the Schedule 13D is amended and supplemented by adding the following to the end of the disclosure under the subheading Commitment Agreement and Related Agreements under a new subheading Public Offering and the 2011 Investment Agreement:
The information set forth under the heading and Public Offering and the 2011 Investment Agreement in Item 4 of this Schedule 13D is hereby incorporated by reference.
Item 6 of the Schedule 13D is amended and supplemented by adding the following to the end of the disclosure under the subheading Public Offering and the 2011 Investment Agreement under a new subheading Offering of $350,000,000 of Class A Common Stock:
On December 5, 2011, in connection with the Public Offering, each of the Equityholders entered into a lock-up agreement with respect to the Class A Common Stock (individually, a 2011 Lock-up Agreement and, collectively, the 2011 Lock-Up Agreements). Each 2011 Lock-up Agreement has substantially the same terms as each other 2011 Lock-up Agreement and a form of these 2011 Lock-up Agreements is filed as Exhibit 99.19 to this Amendment. The 2011 Lock-up Agreements provide that each of the Equityholders, during the period beginning on December 7, 2011 and ending on February 5, 2012, will not, subject to certain exceptions, (1) lend, offer, pledge, sell, contract to sell, sell any option or contract to purchase, purchase any option or contract to sell, grant any option, right or warrant to purchase, or otherwise transfer or dispose of, directly or indirectly, any shares of Class A Common Stock or any securities convertible into or exercisable or exchangeable for Class A Common Stock held by such Equityholder on the date of the 2011 Lock-up Agreement, or publicly disclose the intention to make any offer, sale, pledge or disposition, (2) enter into any swap or other agreement that transfers, in whole or in part, any of the economic consequences of ownership of the Class A Common Stock or such other securities, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Class A Common Stock or such other securities, in cash or otherwise or (3) make any demand for or exercise any right with respect to the registration of any shares of Class A Common Stock or any security convertible into or exercisable or exchangeable for Class A Common Stock.
On December 7, 2011, certain of the Equityholders took action by written consent (the Written Consent) to approve the Charter Amendment to increase the number of authorized shares of Class A Common Stock from 1,500,000,000 to 2,000,000,000 and the number of authorized shares of Class B Common Stock from 1,000,000,000 to 1,400,000,000.
In addition, Item 6 of the Schedule 13D is amended and supplemented by replacing the last paragraph with the following:
The foregoing summaries of certain provisions of the Equityholders Agreement, the Strategic Investor Agreement, the Registration Rights Agreement, the Operating Agreement, the Waiver, the Lock-up Agreements, the Preemptive Rights Waivers, the Commitment Agreement (including the form of Note attached as Exhibit B thereto), the Letter Agreement, the Sprint Preemptive Rights Exercise Letter, the 2011 Investment Agreement, the 2011 Lock-Up Agreements and the Written Consent are not intended to be complete and are qualified in their entirety by reference to the full text of such documents, which are filed as Exhibit 99.3, 99.4, 99.5, 99.6, 99.10, 99.11, 99.12, 99.15, 99.16, 99.17, 99.18, 99.19 and 99.20, respectively, hereto and each is incorporated herein by reference.
CUSIP No. 18538Q 105 | 13D | Page 29 of 44 Pages |
Item 7. Material to be filed as Exhibits.
Item 7 of the Schedule 13D is hereby amended and supplemented by adding the following at the end thereof:
99.15 | Commitment Agreement, dated November 30, 2011, by and among Clearwire Corporation, Clearwire Communications LLC, Sprint HoldCo, LLC and Sprint Nextel Corporation (including the form of Note attached as Exhibit B thereto) (incorporated herein by reference to Exhibit 10.1 of Clearwire Corporations Current Report on Form 8-K filed December 5, 2011) | |
99.16 | Letter Agreement, dated November 30, 2011, by and among Clearwire Corporation, Clearwire Communications, LLC, Sprint HoldCo, LLC and Sprint Nextel Corporation (incorporated herein by reference to Exhibit 10.2 of Clearwire Corporations Current Report on Form 8-K filed December 5, 2011) | |
99.17 | Letter to Clearwire Corporation from Sprint Nextel Corporation, dated December 12, 2011, regarding Notice of Exercise of Preemptive Rights | |
99.18 | Investment Agreement, dated December 13, 2011, by and among Clearwire Corporation, Clearwire Communications LLC and Sprint HoldCo, LLC | |
99.19 | Form of 2011 Lock-Up Agreement | |
99.20 | Non-Unanimous Written Consent to Action in Lieu of Special Meeting of the Stockholders of Clearwire Corporation, dated December 7, 2011, executed by Sprint HoldCo, LLC, Comcast Corporation, as Strategic Investor Representative, Intel Capital Wireless Investment Corporation 2008A, Intel Capital Wireless Investment Corporation 2008B, Intel Capital Wireless Investment Corporation 2008C, Intel Capital Corporation, Intel Capital (Cayman) Corporation and Middlefield Ventures, Inc. |
CUSIP No. 18538Q 105 | 13D | Page 30 of 44 Pages |
After reasonable inquiry and to the best of our knowledge and belief, the undersigned certify that the information set forth in this statement is true, complete and correct.
Dated: December 16, 2011
Sprint Nextel Corporation | ||
By | /s/ Timothy P. OGrady | |
Name: Timothy P. OGrady | ||
Title: Vice President, Legal & Assistant Secretary | ||
Sprint HoldCo, LLC | ||
By | /s/ Timothy P. OGrady | |
Name: Timothy P. OGrady | ||
Title: Vice President & Secretary | ||
Comcast Corporation | ||
By | /s/ Arthur R. Block | |
Name: Arthur R. Block | ||
Title: Senior Vice President | ||
Comcast Wireless Investment I, Inc. | ||
By | /s/ Arthur R. Block | |
Name: Arthur R. Block | ||
Title: Senior Vice President | ||
Comcast Wireless Investment II, Inc. | ||
By | /s/ Arthur R. Block | |
Name: Arthur R. Block | ||
Title: Senior Vice President | ||
Comcast Wireless Investment III, Inc. | ||
By | /s/ Arthur R. Block | |
Name: Arthur R. Block | ||
Title: Senior Vice President |
CUSIP No. 18538Q 105 | 13D | Page 31 of 44 Pages |
Comcast Wireless Investment IV, Inc. | ||
By | /s/ Arthur R. Block | |
Name: Arthur R. Block Title: Senior Vice President |
Comcast Wireless Investment V, Inc. | ||
By | /s/ Arthur R. Block | |
Name: Arthur R. Block Title: Senior Vice President |
Comcast Wireless Investment VI, Inc. | ||
By | /s/ Arthur R. Block | |
Name: Arthur R. Block Title: Senior Vice President |
Time Warner Cable Inc. | ||
By | /s/ Marc Lawrence-Apfelbaum | |
Name: Marc Lawrence-Apfelbaum Title: Executive Vice President |
Time Warner Cable LLC | ||
By | /s/ Marc Lawrence-Apfelbaum | |
Name: Marc Lawrence-Apfelbaum Title: Executive Vice President |
TWC Wireless Holdings I LLC | ||
By | /s/ Marc Lawrence-Apfelbaum | |
Name: Marc Lawrence-Apfelbaum Title: Executive Vice President |
TWC Wireless Holdings II LLC | ||
By | /s/ Marc Lawrence-Apfelbaum | |
Name: Marc Lawrence-Apfelbaum Title: Executive Vice President |
TWC Wireless Holdings III LLC | ||
By | /s/ Marc Lawrence-Apfelbaum | |
Name: Marc Lawrence-Apfelbaum Title: Executive Vice President |
Bright House Networks, LLC | ||
By | /s/ Donald E. Newhouse | |
Name: Donald E. Newhouse Title: Vice President |
CUSIP No. 18538Q 105 | 13D | Page 32 of 44 Pages |
BHN Spectrum Investments, LLC | ||
By | /s/ Donald E. Newhouse | |
Name: Donald E. Newhouse Title: Vice President |
Newhouse Broadcasting Corporation | ||
By | /s/ Donald E. Newhouse | |
Name: Donald E. Newhouse Title: President |
Google Inc. | ||
By | /s/ Donald Harrison | |
Name: Donald Harrison Title: Vice President, Deputy General Counsel and Assistant Secretary |
Eagle River Holdings, LLC | ||
By | /s/ Amit Mehta | |
Name: Amit Mehta Title: Vice President |
Craig O. McCaw | ||
By | /s/ Craig O. McCaw | |
Name: Craig O. McCaw |
CUSIP No. 18538Q 105 | 13D | Page 33 of 44 Pages |
Appendix B-1
EXECUTIVE OFFICERS AND DIRECTORS
OF
COMCAST
Appendix B-1 of the Schedule 13D is hereby amended and restated in its entirety as follows:
Set forth below is a list of each executive officer and director of Comcast setting forth the business address and present principal occupation or employment (and the name and address of any corporation or organization in which such employment is conducted) of each person. Unless otherwise indicated, each occupation set forth opposite an individuals name refers to such individuals employment with Comcast and each individual is a United States citizen.
Name and Business Address |
Present Principal Occupation (principal business of employer) |
Name and Address of Corporation or Other Organization (if different from address provided in Column 1) | ||
Michael J. Angelakis Comcast Corporation One Comcast Center Philadelphia, PA 19103-2838 |
Vice Chairman and Chief Financial Officer | |||
Kenneth J. Bacon* Comcast Corporation One Comcast Center Philadelphia, PA 19103-2838 |
Executive Vice President of Housing and Community Development of Fannie Mae | Fannie Mae 3900 Wisconsin Ave., NW Washington, DC 20016 | ||
Sheldon M. Bonovitz* Comcast Corporation One Comcast Center Philadelphia, PA 19103-2838 |
Chairman Emeritus of Duane Morris LLP | Duane Morris LLP 30 South 17th Street Philadelphia, PA 19103 | ||
Arthur R. Block, Esq. Comcast Corporation One Comcast Center Philadelphia, PA 19103-2838 |
Senior Vice President, General Counsel and Secretary | |||
Stephen B. Burke Comcast Corporation One Comcast Center Philadelphia, PA 19103-2838 |
Executive Vice President; President and Chief Executive Officer, NBCUniversal | |||
David L. Cohen Comcast Corporation One Comcast Center Philadelphia, PA 19103-2838 |
Executive Vice President |
Joseph J. Collins* Comcast Corporation One Comcast Center Philadelphia, PA 19103-2838 |
Chairman of Aegis, LLC; Retired Chairman and Chief Executive Officer of Time Warner Cable | 155 Long Neck Point Road Darien, CT 06820 |
CUSIP No. 18538Q 105 | 13D | Page 34 of 44 Pages |
J. Michael Cook* Comcast Corporation One Comcast Center Philadelphia, PA 19103-2838 |
Retired Chairman and Chief Executive Officer of Deloitte & Touche LLP | 980 Lake Avenue Greenwich, CT 06831 | ||
Gerald L. Hassell* Comcast Corporation One Comcast Center Philadelphia, PA 19103-2838 |
President of The Bank of New York Mellon Corporation | The Bank of New York Mellon Corporation One Wall Street New York, New York 10286 | ||
Jeffrey A. Honickman* Comcast Corporation One Comcast Center Philadelphia, PA 19103-2838 |
Chief Executive Officer of Pepsi-Cola and National Brand Beverages, Ltd. | Pepsi-Cola and National Brand Beverages, Ltd. 8275 N Route 130 Pennsauken, NJ 08110-1435 | ||
Eduardo G. Mestre* Comcast Corporation One Comcast Center Philadelphia, PA 19103-2838 |
Vice Chairman of Evercore Partners Inc. | Evercore Partners 55 East 52nd Street New York, NY 10055 | ||
Brian L. Roberts* Comcast Corporation One Comcast Center Philadelphia, PA 19103-2838 |
Chairman, Chief Executive Officer and President | |||
Ralph J. Roberts* Comcast Corporation One Comcast Center Philadelphia, PA 19103-2838 |
Founder and Chairman Emeritus of the Board of Directors | |||
Johnathan A. Rodgers Comcast Corporation One Comcast Center Philadelphia, PA 19103-2838 |
Retired President and Chief Executive Officer of TVOne | 3120 Newark Street, NW Washington, DC 20008 | ||
Dr. Judith Rodin* Comcast Corporation One Comcast Center Philadelphia, PA 19103-2838 |
President of the Rockefeller Foundation | The Rockefeller Foundation 420 Fifth Ave New York, NY 10018 | ||
Lawrence J. Salva Comcast Corporation One Comcast Center Philadelphia, PA 19103-2838 |
Senior Vice President, Chief Accounting Officer and Controller |
CUSIP No. 18538Q 105 | 13D | Page 35 of 44 Pages |
Neil Smit Comcast Corporation One Comcast Center Philadelphia, PA 19103-2838 |
Executive Vice President; President and Chief Executive Officer, Comcast Cable Communications |
* | Director |
CUSIP No. 18538Q 105 | 13D | Page 36 of 44 Pages |
Appendix C-1
EXECUTIVE OFFICERS AND DIRECTORS
OF
TWC
Appendix C-1 of the Schedule 13D is hereby amended and restated in its entirety as follows:
Name and Business Address |
Present Principal Occupation (principal business of employer) |
Name and Address of Corporation or Other Organization (if different from address provided in Column 1) | ||
Directors |
||||
Carole Black c/o Time Warner Cable Inc. 60 Columbus Circle New York, NY 10023 |
Retired | |||
Glenn A. Britt c/o Time Warner Cable Inc. 60 Columbus Circle New York, NY 10023 |
Chairman and Chief Executive Officer of TWC | |||
Thomas H. Castro c/o Time Warner Cable Inc. 60 Columbus Circle New York, NY 10023 |
President and Chief Executive Officer, El Dorado Capital, LLC (private investments) | El Dorado Capital, LLC 6212 Olympia Drive Houston, TX 77057 | ||
David C. Chang c/o Time Warner Cable Inc. 60 Columbus Circle New York, NY 10023 |
Chancellor, Polytechnic University (higher education) | Polytechnic University 6 Metrotech Center Brooklyn, NY 11201 | ||
James E. Copeland, Jr. c/o Time Warner Cable Inc. 60 Columbus Circle New York, NY 10023 |
Retired | |||
Peter R. Haje c/o Time Warner Cable Inc. 60 Columbus Circle New York, NY 10023 |
Legal and Business Consultant and Private Investor | |||
Donna A. James c/o Time Warner Cable Inc. 60 Columbus Circle New York, NY 10023 |
Managing Director, Lardon & Associates LLC (business and executive advisory services) | Lardon & Associates LLC 500 S. Front Street Suite 1200 Columbus, OH 43215 |
CUSIP No. 18538Q 105 | 13D | Page 37 of 44 Pages |
Don Logan c/o Time Warner Cable Inc. 60 Columbus Circle New York, NY 10023 |
Retired | |||
N.J. Nicholas, Jr. c/o Time Warner Cable Inc. 60 Columbus Circle New York, NY 10023 |
Private Investor | |||
Wayne H. Pace1 c/o Time Warner Cable Inc. 60 Columbus Circle New York, NY 10023 |
Retired | |||
Edward D. Shirley c/o Time Warner Cable Inc. 60 Columbus Circle New York, NY 10023 |
Vice Chairman on Special Assignment, The Procter & Gamble Company (consumer products) | The Procter & Gamble Company One P&G Plaza C-3, Box 28 Cincinnati, OH 45202 | ||
John E. Sununu c/o Time Warner Cable Inc. 60 Columbus Circle New York, NY 10023 |
Former U.S. Senator | |||
Executive Officers |
||||
Ellen East c/o Time Warner Cable Inc. 60 Columbus Circle New York, NY 10023 |
Executive Vice President and Chief Communications Officer of TWC | |||
Irene Esteves c/o Time Warner Cable Inc. 60 Columbus Circle New York, NY 10023 |
Executive Vice President and Chief Financial Officer of TWC | |||
Michael LaJoie c/o Time Warner Cable Inc. 60 Columbus Circle New York, NY 10023 |
Executive Vice President and Chief Technology Officer of TWC | |||
Marc Lawrence-Apfelbaum c/o Time Warner Cable Inc. 60 Columbus Circle New York, NY 10023 |
Executive Vice President, General Counsel and Secretary of TWC |
CUSIP No. 18538Q 105 | 13D | Page 38 of 44 Pages |
Robert D. Marcus c/o Time Warner Cable Inc. 60 Columbus Circle New York, NY 10023 |
President and Chief Operating Officer | |||
Gail G. MacKinnon c/o Time Warner Cable Inc. 901 E St. NW Washington, DC 20004 |
Executive Vice President and Chief Government Relations Officer of TWC | |||
Tomas Matthews c/o Time Warner Cable Inc. 7910 Crescent Executive Drive Charlotte, NC 28217 |
Executive Vice President, Human Resources of TWC | |||
Carl U.J. Rossetti c/o Time Warner Cable Inc. 60 Columbus Circle New York, NY 10023 |
Executive Vice President of TWC and President of Time Warner Cable Ventures | |||
Peter C. Stern c/o Time Warner Cable Inc. 60 Columbus Circle New York, NY 10023 |
Executive Vice President and Chief Strategy Officer of TWC | |||
Melinda Witmer c/o Time Warner Cable Inc. 60 Columbus Circle New York, NY 10023 |
Executive Vice President and Chief Programming Officer of TWC |
1 | In connection with an administrative order dated March 21, 2005, Mr. Pace reached a settlement with the Securities and Exchange Commission (the SEC) pursuant to which he agreed, without admitting or denying the SECs allegations, to the entry of an administrative order that he cease and desist from causing violations or future violations of certain reporting provisions of the securities laws; however, he is not subject to any suspension, bar or penalty. |
CUSIP No. 18538Q 105 | 13D | Page 39 of 44 Pages |
Appendix C-2
EXECUTIVE OFFICERS AND DIRECTORS
OF
TWC LLC
Appendix C-2 of the Schedule 13D is hereby amended by adding the row for Irene Esteves set forth below immediately below the row for Ellen East:
Irene Esteves c/o Time Warner Cable Inc. 60 Columbus Circle New York, NY 10023 |
Executive Vice President and Chief Financial Officer |
CUSIP No. 18538Q 105 | 13D | Page 40 of 44 Pages |
Appendix C-3
EXECUTIVE OFFICERS AND DIRECTORS
OF
TWC I
Appendix C-3 of the Schedule 13D is hereby amended by adding the row for Irene Esteves set forth below immediately below the row for Robert D. Marcus:
Irene Esteves c/o Time Warner Cable Inc. 60 Columbus Circle New York, NY 10023 |
Executive Vice President and Chief Financial Officer |
CUSIP No. 18538Q 105 | 13D | Page 41 of 44 Pages |
Appendix C-4
EXECUTIVE OFFICERS AND DIRECTORS
OF
TWC II
Appendix C-4 of the Schedule 13D is hereby amended by adding the row for Irene Esteves set forth below immediately below the row for Robert D. Marcus:
Irene Esteves c/o Time Warner Cable Inc. 60 Columbus Circle New York, NY 10023 |
Executive Vice President and Chief Financial Officer |
CUSIP No. 18538Q 105 | 13D | Page 42 of 44 Pages |
Appendix C-5
EXECUTIVE OFFICERS AND DIRECTORS
OF
TWC III
Appendix C-5 of the Schedule 13D is hereby amended by adding the row for Irene Esteves set forth below immediately below the row for Robert D. Marcus:
Irene Esteves c/o Time Warner Cable Inc. 60 Columbus Circle New York, NY 10023 |
Executive Vice President and Chief Financial Officer |
CUSIP No. 18538Q 105 | 13D | Page 43 of 44 Pages |
Exhibit |
Description | |
99.1 | Transaction Agreement and Plan of Merger, dated as of May 7, 2008, by and among Sprint Nextel Corporation, Clearwire Corporation, Comcast Corporation, Time Warner Cable Inc., Bright House Networks, LLC, Google Inc., and Intel Corporation (incorporated herein by reference to Exhibit 2.1 of Clearwire Corporations Current Report on Form 8-K filed May 7, 2008) | |
99.2 | Amendment No. 1 to the Transaction Agreement and Plan of Merger, dated as of November 21, 2008, by and among Sprint Nextel Corporation, Clearwire Corporation, Comcast Corporation, Time Warner Cable Inc., Bright House Networks, LLC, Google Inc., and Intel Corporation (incorporated herein by reference to Exhibit 2.1 of Clearwire Corporations Current Report on Form 8-K filed December 1, 2008) | |
99.3 | Equityholders Agreement, dated as of November 28, 2008, by and among Clearwire Corporation, Sprint HoldCo, LLC, Eagle River Holdings, LLC, Intel Capital Wireless Investment Corporation 2008A, Intel Capital Wireless Investment Corporation 2008B, Intel Capital Wireless Investment Corporation 2008C, Intel Capital Corporation, Intel Capital (Cayman) Corporation, Middlefield Ventures, Inc., Comcast Wireless Investment I, Inc., Comcast Wireless Investment II, Inc., Comcast Wireless Investment III, Inc., Comcast Wireless Investment IV, Inc., Comcast Wireless Investment V, Inc., Google Inc., TWC Wireless Holdings I LLC, TWC Wireless Holdings II LLC, TWC Wireless Holdings III LLC, BHN Spectrum Investments, LLC and, for the limited purpose of Sections 2.13, 2.14, 2.15 and Article 4, Sprint Nextel Corporation (incorporated herein by reference to Exhibit 4.1 of Clearwire Corporations Current Report on Form 8-K filed December 1, 2008) | |
99.4 | Strategic Investor Agreement, dated as of November 28, 2008, by and among Comcast Wireless Investment I, Inc., Comcast Wireless Investment II, Inc., Comcast Wireless Investment III, Inc., Comcast Wireless Investment IV, Inc., Comcast Wireless Investment V, Inc., TWC Wireless Holdings I LLC, TWC Wireless Holdings II LLC, TWC Wireless Holdings III LLC, BHN Spectrum Investments, LLC, Google Inc., Comcast Corporation, Time Warner Cable Inc. and Bright House Networks, LLC* | |
99.5 | Registration Rights Agreement, dated as of November 28, 2008, among Clearwire Corporation, Sprint Nextel Corporation, Eagle River Holdings, LLC, Intel Corporation, Comcast Corporation, Google Inc., Time Warner Cable Inc. and BHN Spectrum Investments LLC (incorporated herein by reference to Exhibit 4.2 of Clearwire Corporations Current Report on Form 8-K filed December 1, 2008) | |
99.6 | Amended and Restated Operating Agreement of Clearwire Communications LLC, dated as of November 28, 2008 (incorporated herein by reference to Exhibit 10.1 of Clearwire Corporations Current Report on Form 8-K filed December 1, 2008) | |
99.7 | Joint Filing Agreement, dated as of November 28, 2008, among the Reporting Persons and, solely for purposes of Sections 7, 8, 9 and 10, the Intel Entities, Intel Capital, Intel Cayman and Middlefield* | |
99.8 | Investment Agreement, dated as of November 9, 2009, by and among Sprint Nextel Corporation, Clearwire Corporation, Clearwire Communications LLC, Comcast Corporation, Time Warner Cable Inc., Bright House Networks, LLC, Eagle River Holdings, LLC and Intel Corporation (incorporated herein by reference to Exhibit 10.1 of Sprint Nextel Corporations Current Report on Form 8-K filed November 10, 2009) | |
99.9 | Non-Unanimous Written Consent to Action in Lieu of Special Meeting of the Stockholders of Clearwire Communication, dated as of November 9, 2009, executed by Sprint HoldCo, LLC, Eagle River Holdings, LLC, Intel Capital Wireless Investment Corporation 2008A, Intel Capital Wireless Investment Corporation 2008B, Intel Capital Wireless Investment Corporation 2008C, Intel Capital Corporation, Intel Capital (Cayman) Corporation, Middlefield Ventures, Inc., Comcast Wireless Investment I, Inc., Comcast Wireless Investment II, Inc., Comcast Wireless Investment III, Inc., Comcast Wireless Investment IV, Inc., Comcast Wireless Investment V, Inc., Google Inc., TWC Wireless Holdings I LLC, TWC Wireless Holdings II LLC, TWC Wireless Holdings III LLC and BHN Spectrum Investments, LLC* | |
99.10 | Unanimous Consent and Waiver, dated as of November 9, 2009, by and among Clearwire Corporation, Sprint HoldCo, LLC, Eagle River Holdings, LLC, Intel Capital Wireless Investment Corporation 2008A, Intel Capital Wireless Investment Corporation 2008B, Intel Capital Wireless Investment Corporation 2008C, Intel Capital Corporation, Intel Capital (Cayman) Corporation, Middlefield Ventures, Inc., Comcast Wireless Investment I, Inc., Comcast Wireless Investment II, Inc., Comcast Wireless Investment III, Inc., Comcast Wireless Investment IV, Inc., Comcast Wireless Investment V, Inc., Google Inc., TWC Wireless Holdings I LLC, TWC Wireless Holdings II LLC, TWC Wireless Holdings III LLC, BHN Spectrum Investments, LLC and, for the limited purpose of Sections 2.13, 2.14, 2.15 and Article 4, Sprint Nextel Corporation* | |
99.11 | Form of Lock-up Agreement, dated as of December 1, 2010* |
CUSIP No. 18538Q 105 | 13D | Page 44 of 44 Pages |
Exhibit |
Description | |
99.12 | Form of Preemptive Rights Waiver, dated as of December 1, 2010* | |
99.13 | Amendment to Equityholders Agreement, dated as of December 8, 2010, by and among Clearwire Corporation, Sprint HoldCo, LLC, Eagle River Holdings, LLC, Intel Capital Wireless Investment Corporation 2008A, Intel Capital Wireless Investment Corporation 2008B, Intel Capital Wireless Investment Corporation 2008C, Intel Capital Corporation, Intel Capital (Cayman) Corporation, Middlefield Ventures, Inc. and Comcast Corporation, as Strategic Investor Representative (incorporated herein by reference to Exhibit 4.11 of Clearwire Corporations Current Report on Form 8-K filed December 13, 2010) | |
99.14 | Letter to Clearwire Corporation from Sprint Nextel Corporation, dated June 1, 2011, pursuant to Section 2.13(j) of the Equityholders Agreement* | |
99.15 | Commitment Agreement, dated November 30, 2011, by and among Clearwire Corporation, Clearwire Communications LLC, Sprint HoldCo, LLC and Sprint Nextel Corporation (including the Note attached as Exhibit B) (incorporated herein by reference to Exhibit 10.1 of Clearwire Corporations Current Report on Form 8-K filed December 5, 2011) | |
99.16 | Letter Agreement, dated November 30, 2011, by and among Clearwire Corporation, Clearwire Communications, LLC, Sprint HoldCo, LLC and Sprint Nextel Corporation (incorporated herein by reference to Exhibit 10.2 of Clearwire Corporations Current Report on Form 8-K filed December 5, 2011) | |
99.17 | Letter to Clearwire Corporation from Sprint Nextel Corporation, dated December 12, 2011, regarding Notice of Exercise of Preemptive Rights | |
99.18 | Investment Agreement, dated December 13, 2011, by and among Clearwire Corporation, Clearwire Communications LLC and Sprint HoldCo, LLC | |
99.19 | Form of 2011 Lock-Up Agreement | |
99.20 | Non-Unanimous Written Consent to Action in Lieu of Special Meeting of the Stockholders of Clearwire Corporation, dated December 7, 2011, executed by Sprint HoldCo, LLC, Comcast Corporation, as Strategic Investor Representative, Intel Capital Wireless Investment Corporation 2008A, Intel Capital Wireless Investment Corporation 2008B, Intel Capital Wireless Investment Corporation 2008C, Intel Capital Corporation, Intel Capital (Cayman) Corporation and Middlefield Ventures, Inc. |
* | Previously filed. |
Exhibit 99.17
SPRINT HOLDCO, LLC
6200 Sprint Parkway
Overland Park, Kansas 66251
December 12, 2011
To: | Clearwire Corporation (the Company) and Clearwire Communications LLC (Clearwire LLC) | |
Re: | Notice of Exercise of Preemptive Rights in Connection with the Issuance of Common Stock in a Public Offering by the Company |
Ladies and Gentleman:
Reference is made to: (i) that certain Equityholders Agreement, dated as of November 28, 2008, by and among the Company, Sprint HoldCo, LLC, a Delaware limited liability company (Sprint HoldCo) and the other equityholders party thereto, as amended by Amendment to Equityholders Agreement, dated as of December 8, 2010 (the Equityholders Agreement); (ii) that certain Amended and Restated Operating Agreement of Clearwire LLC, dated as of November 28, 2008 (the Operating Agreement), by and among the Company, Sprint HoldCo and the other equityholders party thereto; (iii) that certain Commitment Agreement, dated as of November 30, 2011, by and among the Company, Clearwire LLC, Sprint Nextel Corporation, a Kansas corporation (Sprint Nextel), and Sprint HoldCo (the Commitment Agreement); (iv) that certain Letter Agreement, dated as of November 30, 2011, by and among the Company, Clearwire LLC, Sprint HoldCo and Sprint Nextel (the Letter Agreement); (v) that certain notice delivered by the Company by facsimile to the parties listed on Addendum A thereto on November 30, 2011 (the Offering Notice) regarding the Companys intention to register and offer shares of the Companys common stock in a public offering (the Public Offering); and (vi) that certain notice delivered by the Company by facsimile to the parties listed on Addendum A thereto on December 12, 2011 (together with the Offering Notice, the Company Notices) regarding the exercise by the underwriters of the Public Offering of their option to purchase an additional 26,250,000 shares of the Companys common stock. Capitalized terms not defined herein have the meanings set forth in the Equityholders Agreement.
Pursuant to the Company Notices, Section 3.5 of the Equityholders Agreement, Section 2(b)(i) of the Commitment Agreement and the Letter Agreement, and subject to the terms and conditions set forth in the Equityholders Agreement, the Operating Agreement, the Commitment Agreement and the Letter Agreement, Sprint HoldCo hereby provides notice of its election to purchase Alternative New Securities, representing Sprint HoldCos Preemptive Right Pro Rata Share of the New Securities issued in the Public Offering representing Gross Proceeds (as defined in the Commitment Agreement) of $700,000,000, as follows: (i) 173,635,000 Voting Units (as defined in the Operating Agreement), which Sprint HoldCo shall transfer to the Company in consideration for the Companys issuance to Sprint HoldCo of an equal number of shares of Class B Common Stock; and (ii) 173,635,000 Class B Common Units (as defined in the Operating Agreement). The aggregate purchase price for such Alternative New Securities (calculated in accordance with Section 3.5(d)(iii) of the Equityholders Agreement) will be $331,399,761.
For the avoidance of doubt, Sprint HoldCo and Sprint Nextel reserve all of their other rights under the Equityholders Agreement.
* * * * * * *
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Very truly yours,
SPRINT HOLDCO, LLC | ||
By: | /s/ Charles R. Wunsch | |
Name: Charles R. Wunsch | ||
Title: President |
Exhibit 99.18
INVESTMENT AGREEMENT
among
CLEARWIRE CORPORATION,
CLEARWIRE COMMUNICATIONS LLC,
and
SPRINT HOLDCO, LLC
Dated as of December 13, 2011
THIS INVESTMENT AGREEMENT (this Agreement) is made and entered into as of December 13, 2011 (the Execution Date) by and among Clearwire Corporation, a Delaware corporation (Clearwire), Clearwire Communications LLC, a Delaware limited liability company (Clearwire LLC, and together with Clearwire, the Clearwire Parties) and Sprint HoldCo, LLC, a Delaware limited liability company (Sprint); Sprint and the Clearwire Parties are referred to herein as the Parties).
RECITALS
A. Sprint HoldCo is a current stockholder in Clearwire, and Sprint HoldCo is an equityholder in Clearwire LLC.
B. Pursuant to that certain Commitment Agreement (the Commitment Agreement), dated November 30, 2011, by and between Sprint HoldCo, Sprint Nextel Corporation, a Kansas corporation (Sprint), Clearwire and Clearwire LLC, Sprint HoldCo has agreed that should the Clearwire Parties consummate an equity offering which generates gross proceeds of at least $400.0 million (inclusive of amounts invested by Sprint HoldCo), Sprint HoldCo will exercise its preemptive rights under that certain Equityholders Agreement by and among certain stockholders of Clearwire, dated as of November 28, 2008, as may be amended from time to time (the Equityholders Agreement), and purchase securities representing its preemptive-rights pro rata share of the securities representing gross proceeds of up to $700.0 million issued in such an offering.
C. Clearwire has prepared and filed with the SEC under the Securities Act of 1933, as amended (the Securities Act), an automatic shelf registration statement (File No. 333-178329), including a prospectus, relating to the offering (the Class A Offering) of $350.0 million of its Class A Common Stock, par value $0.0001 (its Class A Common Stock), which automatic shelf registration statement became effective under Rule 462(e) of the rules and regulations of the SEC thereunder. Such registration statement, as amended at the time it became effective, including the information, if any, deemed pursuant to 430B under the Securities Act to be part of the registration statement at the time of its effectiveness (Rule 430 Information), is referred to herein as the Registration Statement; and as used herein, the term Preliminary Prospectus means each prospectus included in such registration statement (and any amendments thereto) before effectiveness, any prospectus filed with the Commission pursuant to Rule 424(a) under the Securities Act and the prospectus included in the Registration Statement at the time of its effectiveness that omits Rule 430 Information, and the term Prospectus means the final prospectus in the form filed with the Commission and dated the date hereof. Any reference in this Agreement to the Registration Statement, any Preliminary Prospectus or the Prospectus shall be deemed to refer to and include the documents incorporated by reference therein pursuant to Item 12 of Form S-3 under the Securities Act, as of the effective date of the Registration Statement or the date of such Preliminary Prospectus or the Prospectus, as the case may be, and any reference to amend, amendment or supplement with respect to the Registration Statement, any Preliminary Prospectus or the Prospectus shall be deemed to refer to and include any documents filed after such date under the Securities Exchange Act of 1934, as amended (the Exchange Act), that are deemed to be incorporated by reference therein.
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Clearwire has prepared and filed with the SEC the following information (the Pricing Disclosure Package): a Preliminary Prospectus dated December 5, 2011 and a Prospectus dated December 7, 2011.
D. On December 9, 2011, the underwriters of the Class A Offering (the Underwriters) exercised in full their option to purchase up to an additional 15% of the amount of shares offered in the Class A Offering.
E. Sprint HoldCo and certain other stockholders of Clearwire and/or equityholders of Clearwire LLC (if applicable) have executed and delievered an irrevocable written consent consenting to an amendment (the Charter Amendment) to Clearwires Restated Certificate of Incorporation, to implement an increase in Clearwires authorized share capital (the Written Consent), as necessary for the consummation of the transactions contemplated by this Agreement (the Transactions).
F. Clearwire has filed with the SEC an information statement on Schedule 14C under the Exchange Act with respect to the Charter Amendment and, upon expiration of a 10-day waiting period or resolution of the staff of the SECs comments, as applicable, expects to file a definitive information statement on Schedule 14C under the Exchange Act relating to the Charter Amendment (the Information Statement).
NOW, THEREFORE, in consideration of the foregoing recitals and of the mutual promises set forth in this Agreement, the Parties to this Agreement and by this Agreement agree as follows:
ARTICLE 1
INVESTMENTS
SECTION 1.1 Closing; Contributions of Sprint HoldCo
(a) At the Investment Closing, Sprint HoldCo will contribute Three Hundred and Thirty-One Million, Three Hundred and Ninety-Nine Thousand, Seven Hundred and Sixty-One Dollars and Zero Cents ($331,399,761.00) to Clearwire LLC.
(b) In consideration for the contribution described in Section 1.1(a), Clearwire LLC will issue in accordance with the terms of that certain Amended and Restated Operating Agreement of Clearwire LLC, dated as of November 28, 2008, as may be amended from time to time (the Clearwire LLC Agreement), 173,635,000 Class B Common Units (as defined in the Clearwire LLC Agreement) and 173,635,000 Voting Units (as defined in the Clearwire LLC Agreement) to Sprint HoldCo.
(c) Immediately following the issuance of the Voting Units, Sprint HoldCo will transfer all of its respective Voting Units described in Section 1.1(b) to Clearwire in consideration for Clearwires issuance to Sprint HoldCo of an equal number of shares of Class B Common Stock, par value $0.0001, of Clearwire (its Class B Common Stock).
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(d) All payments required under this Section 1.1 will be made in cash by wire transfer of immediately available funds to a bank account(s) of Clearwire LLC designated in writing by Clearwire LLC promptly prior to the Investment Closing.
SECTION 1.2 Closing. Unless this Agreement has been earlier terminated in accordance with Section 5.1, and on the terms and the conditions set forth in Section 4.1, the closing of the transactions contemplated by Section 1.1 (the Investment Closing) will take place on the next Business Day after satisfaction or waiver of the closing conditions in Article 4 occurs with respect to the Investment Closing (excluding conditions that by their nature cannot be satisfied until the Investment Closing but subject to the satisfaction of such conditions at the Investment Closing), or another time and date that the Parties agree to in writing. As used herein, Business Day means a day that is not a Saturday or Sunday or other day that banks are authorized by Law to be closed in New York, New York.
SECTION 1.3 Clearwire Closing Deliverables. Clearwire will deliver, or cause to be delivered by Clearwire LLC, to Sprint HoldCo at the Investment Closing the following:
(i) an instrument (which may be evidence of book-entry) evidencing the Voting Units to be issued at the Investment Closing duly executed by Clearwire LLC;
(ii) an instrument (which may be evidence of book-entry) evidencing the Class B Common Units to be issued at the Investment Closing duly executed by Clearwire LLC;
(iii) a stock certificate or evidence of book-entry for the respective shares of Class B Common Stock to be issued at the Investment Closing duly executed by Clearwire;
(iv) a certificate executed by an executive officer of Clearwire certifying compliance by Clearwire with the conditions set forth in Sections 4.2(a) and 4.2(b);
(v) a certificate executed by the Secretary or any Assistant Secretary of Clearwire, dated as of the date of the Investment Closing, certifying the good standing of Clearwire in Delaware;
(vi) a certificate executed by the Secretary or any Assistant Secretary of Clearwire LLC, dated as of the date of the Investment Closing, certifying the good standing of Clearwire LLC in Delaware; and
(vii) all other documents required to be entered into by the Clearwire Parties under this Agreement.
SECTION 1.4 Sprint HoldCo Closing Deliverables. At the Investment Closing, Sprint HoldCo will deliver, or cause to be delivered, to the Clearwire Parties the following:
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(a) an instrument evidencing the wire transfer of Sprint HoldCos contribution contemplated by Section 1.1, to be made at the Investment Closing in immediately available funds to a bank account designated in writing by Clearwire or Clearwire LLC, as the case may be;
(b) an instrument evidencing the transfer of the Voting Units to be transferred at the Investment Closing, duly executed by Sprint HoldCo; and
(c) all other documents required to be entered into by Sprint HoldCo and/or one or more appropriate subsidiaries of Sprint under this Agreement.
ARTICLE 2
REPRESENTATIONS AND WARRANTIES OF THE CLEARWIRE PARTIES
Each of the Clearwire Parties, jointly and severally, represents and warrants to Sprint HoldCo as of the date hereof that:
(a) Registration Statement and Prospectus. As of the date hereof and as of the Investment Closing, the Registration Statement and any post-effective amendment complied and will comply in all material respects with the Securities Act, and did not and will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, not misleading; and as of the date of the Prospectus and any amendment or supplement thereto and as of the Execution Date, as the case may be, the Prospectus will not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that Clearwire makes no representation and warranty with respect to any statements or omissions made in reliance upon and in conformity with information relating to any Underwriter furnished to Clearwire in writing by such Underwriter expressly for use in the Registration Statement and the Prospectus and any amendment or supplement thereto.
(b) Financial Statements. The historical financial statements of Clearwire and its consolidated subsidiaries and the related notes thereto included or incorporated by reference in the Registration Statement, the Pricing Disclosure Package and the Prospectus comply in all material respects with the applicable requirements of the Securities Act and the Exchange Act, as applicable, and present fairly the financial position of Clearwire and its consolidated subsidiaries as of the dates indicated and the results of their operations and the changes in their cash flows for the periods specified; such financial statements have been prepared in conformity with generally accepted accounting principles in the United States applied on a consistent basis throughout the periods covered thereby, and any supporting schedules included or incorporated by reference in the Registration Statement present fairly the information required to be stated therein; and the other financial information included or incorporated by reference in the
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Registration Statement, the Pricing Disclosure Package and the Prospectus has been derived from the accounting records of Clearwire and its consolidated subsidiaries and presents fairly the information shown thereby. The interactive data in eXtensible Business Reporting Language incorporated by reference into the Registration Statement, Pricing Disclosure Package and the Prospectus has been prepared in accordance with the SECs rules and guidelines applicable thereto (the XBRL Data).
(c) No Material Adverse Change. Since the date of the most recent financial statements of Clearwire included or incorporated by reference in the Registration Statement, the Pricing Disclosure Package and the Prospectus, (i) there has not been any change in the capital stock (other than the issuance of shares of Class A Common Stock upon exercise of stock options and warrants described as outstanding in, and the grant of options and awards under existing equity incentive plans described in, the Registration Statement, the Pricing Disclosure Package and the Prospectus), long-term debt of Clearwire or any of its subsidiaries, or any dividend or distribution of any kind declared, set aside for payment, paid or made by Clearwire on any class of capital stock, or any material adverse change, or any development involving a prospective material adverse change, in or affecting the business, properties, management, financial position, stockholders equity, results of operations of Clearwire and its subsidiaries taken as a whole; (ii) neither Clearwire nor any of its subsidiaries has entered into any transaction or agreement that is material to Clearwire and its subsidiaries taken as a whole or incurred any liability or obligation, direct or contingent, that is material to Clearwire and its subsidiaries taken as a whole; and (iii) neither Clearwire nor any of its subsidiaries has sustained any material loss or interference with its business either from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor disturbance or dispute or any action, order or decree of any court or arbitrator or governmental or regulatory authority, except in each case as otherwise disclosed in the Registration Statement, the Pricing Disclosure Package and the Prospectus.
(d) Organization and Good Standing. Clearwire and each of its subsidiaries have been duly organized and are validly existing and in good standing under the laws of their respective jurisdictions of organization, are duly qualified to do business and are in good standing in each jurisdiction in which their respective ownership or lease of property or the conduct of their respective businesses requires such qualification, and have all power and authority necessary to own or hold their respective properties and to conduct the businesses in which they are engaged, except where the failure to be so qualified or in good standing or have such power or authority would not, individually or in the aggregate, be reasonably expected to have a material adverse effect on the business, properties, management, financial position, stockholders equity, results of operations of Clearwire and its subsidiaries taken as a whole or on the performance by Clearwire of its obligations under this Agreement (a Material Adverse Effect). The subsidiaries listed in Schedule 1 to this Agreement are the only significant subsidiaries of Clearwire.
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(e) Capitalization. Clearwire has an authorized capitalization as set forth in the Registration Statement, the Pricing Disclosure Package and the Prospectus under the heading Capitalization in the Actual column; all the outstanding shares of capital stock of Clearwire have been duly authorized and validly issued and are fully paid and non-assessable and except as described in or contemplated by the Registration Statement, Pricing Disclosure Package and the Prospectus, are not subject to any pre-emptive or similar rights; except as described in or expressly contemplated by the Registration Statement, Pricing Disclosure Package and the Prospectus, there are no outstanding rights (including, without limitation, pre-emptive rights), warrants or options to acquire, or instruments convertible into or exchangeable for, any shares of capital stock or other equity interest in Clearwire or any of its subsidiaries, or any contract, commitment, agreement, understanding or arrangement of any kind relating to the issuance of any capital stock of Clearwire or any such subsidiary, any such convertible or exchangeable securities or any such rights, warrants or options; the capital stock of Clearwire conforms in all material respects to the description thereof contained in the Registration Statement, the Pricing Disclosure Package and the Prospectus; and all the outstanding shares of capital stock or other equity interests of each subsidiary owned, directly or indirectly, by Clearwire have been duly authorized and validly issued, are fully paid and non-assessable and are owned directly or indirectly by Clearwire, free and clear of any lien, charge, encumbrance, security interest, restriction on voting or transfer (other than transfer restrictions under applicable securities laws) or any other claim of any third party except as described in the Registration Statement, Pricing Disclosure Package and the Prospectus.
(f) Stock Options. With respect to the stock options (the Stock Options) granted pursuant to the stock-based compensation plans of Clearwire and its subsidiaries (the Company Stock Plans), (i) each Stock Option intended to qualify as an incentive stock option under Section 422 of the Code so qualifies, (ii) each grant of a Stock Option was duly authorized no later than the date on which the grant of such Stock Option was by its terms to be effective (the Grant Date) by all necessary corporate action, including, as applicable, approval by the board of directors of Clearwire (or a duly constituted and authorized committee thereof) and any required stockholder approval by the necessary number of votes or written consents, and the award agreement governing such grant (if any) was duly executed and delivered by each party thereto, (iii) each such grant was made in accordance with the terms of Clearwire Stock Plans, the Exchange Act and all other applicable laws and regulatory rules or requirements, including the rules of Nasdaq Global Select Market (Nasdaq) and any other exchange on which Company securities are traded, and (iv) each such grant was properly accounted for in accordance with GAAP in the financial statements (including the related notes) of Clearwire and disclosed in Clearwires filings with the SEC in accordance with the Exchange Act and all other applicable laws. Clearwire has not knowingly granted, and there is no and has been no policy or practice of Clearwire of granting, Stock Options prior to, or otherwise coordinating the grant of Stock Options with, the release or other public announcement of material information regarding Clearwire or its subsidiaries or their results of operations or prospects.
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(g) Due Authorization. Each of the Clearwire Parties has full right, power and authority to execute and deliver this Agreement and to perform its obligations hereunder; and all action required to be taken for the due and proper authorization, execution and delivery by each of them of this Agreement and the consummation by the Clearwire Parties of the transactions contemplated hereby has been duly and validly taken.
(h) Investment Agreement. This Agreement has been duly authorized, executed and delivered by the Clearwire Parties.
(i) The Class B Common Units and Class B Common Stock. Each of the Class B Common Units, the Voting Units and the Class B Common Stock to be issued and sold by the Clearwire Parties hereunder has been duly authorized and, when issued and delivered and paid for as provided herein, will be validly issued, will be fully paid and nonassessable.
(j) No Violation or Default. Neither Clearwire nor any of its subsidiaries is (i) in violation of its charter or by-laws or similar organizational documents; (ii) in default, and no event has occurred that, with notice or lapse of time or both, would constitute such a default, in the due performance or observance of any term, covenant or condition contained in any indenture, mortgage, lease, deed of trust, loan agreement or other agreement or instrument to which Clearwire or any of its subsidiaries is a party or by which Clearwire or any of its subsidiaries is bound or to which any of the property or assets of Clearwire or any of its subsidiaries is subject; or (iii) in violation of any law or statute or any judgment, order, rule or regulation of any court or arbitrator, administrative agency or governmental or regulatory authority, except, in the case of clauses (ii) and (iii) above, for any such default or violation that would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
(k) No Conflicts. The execution, delivery and performance by the Clearwire Parties of this Agreement, the issuance and sale of the Class B Common Units, the Voting Units and the Class B Common Stock and the consummation of the transactions contemplated by this Agreement will not (i) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of Clearwire or any of its subsidiaries pursuant to, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which Clearwire or any of its subsidiaries is a party or by which Clearwire or any of its subsidiaries is bound or to which any of the property or assets of Clearwire or any of its subsidiaries is subject, (ii) result in any violation of the provisions of the charter or by-laws or similar organizational documents of Clearwire or any of its subsidiaries or (iii) result in the violation of any law or statute or any judgment, order, rule or regulation of any court or arbitrator, administrative agency, or governmental or regulatory authority, except, in the case of clauses (i) and (iii) above, for any such conflict, breach, violation, lien, charge, encumbrance or default that would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
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(l) No Consents Required. No consent, approval, authorization, order, registration or qualification of or with any court or arbitrator or governmental or regulatory authority is required for the execution, delivery and performance by the Clearwire Parties of this Agreement, the issuance and sale of the Class B Common Units, the Voting Units and the Class B Common Stock by Clearwire to Sprint HoldCo and the consummation of the transactions contemplated by this Agreement, except for the registration of the Class B Common Units, the Voting Units and the Class B Common Stock under the Securities Act and such consents, approvals, authorizations, orders, registrations and qualifications as may be required under applicable state securities laws in connection with the purchase of the Class B Common Units, the Voting Units and the Class B Common Stock by Sprint HoldCo or that have been obtained on or prior to the date of this Agreement.
(m) Legal Proceedings. Except as described in the Registration Statement, the Pricing Disclosure Package and the Prospectus, there are no legal, governmental or regulatory investigations, actions, suits or proceedings pending to which Clearwire or any of its subsidiaries is a party or to which any property of Clearwire or any of its subsidiaries is the subject that, individually or in the aggregate, if determined adversely to Clearwire or any of its subsidiaries, would reasonably be expected to have a Material Adverse Effect; to the Clearwire Parties knowledge no such investigations, actions, suits or proceedings are threatened or contemplated by any governmental or regulatory authority or threatened by others; and there are no statutes, regulations or contracts or other documents that are required under the Securities Act to be filed as exhibits to the Registration Statement or described in the Registration Statement, the Pricing Disclosure Package or the Prospectus that are not so filed as exhibits to the Registration Statement or described in the Registration Statement, the Pricing Disclosure Package and the Prospectus.
(n) Independent Accountants. Deloitte & Touche LLP, who has audited certain financial statements of Clearwire and its subsidiaries and KPMG LLP, who has certified certain financial statements of Clearwires predecessors, are each independent registered public accounting firms with respect to Clearwire and its subsidiaries within the applicable rules and regulations adopted by the SEC and the Public Company Accounting Oversight Board (United States) and as required by the Securities Act.
(o) Title to Real and Personal Property. Except as disclosed in the Registration Statement, the Pricing Disclosure Package and the Prospectus, Clearwire and its subsidiaries have good and marketable title in fee simple to, or have valid interest and rights to use, all items of real and personal property that are material to the respective businesses of Clearwire and its subsidiaries, in each case free and clear of all liens, encumbrances, claims and defects and imperfections of title except those that would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect. The assets and properties owned, leased or otherwise used by Clearwire are in good repair, working order and condition (reasonable wear and tear excepted), except in such cases as their use does not so require or would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.
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(p) Title to Intellectual Property. To the knowledge of each of Clearwire and Clearwire LLC and except as disclosed in each of the Registration Statement, the Pricing Disclosure Package and the Prospectus, (i) the conduct of its business does not infringe, misappropriate, dilute or otherwise conflict with any intellectual property rights of others except for those infringements, misappropriations, dilutions or conflicts that would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, (ii) in the four years prior to the date of this Agreement, Clearwire and its subsidiaries have not received any written notice of any claim of infringement, misappropriation, dilution of, or conflict with, any such rights of others that if determined in a manner adverse to the Clearwire Parties, would, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, and (iii) there is no infringement, misappropriation, dilution or other conflict with Company Intellectual Property by any third party, except as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. As used in this Section 2(p), Company Intellectual Property means the rights of Clearwire and its subsidiaries to all material patents, patent applications, patent rights, trademarks, service marks, trade names, trademark registrations, service mark registrations, copyrights, licenses, inventions and know-how (including trade secrets and other unpatented and/or unpatentable proprietary or confidential information, systems or procedures) or other intellectual property to the extent necessary for the conduct of their respective businesses.
(q) No Undisclosed Relationships. No relationship, direct or indirect, exists between or among Clearwire or any of its subsidiaries, on the one hand, and the directors, officers, stockholders or other affiliates of Clearwire or any of its subsidiaries, on the other, that would be required by the Securities Act to be described in the Registration Statement and the Prospectus and that is not so described in such documents and in the Pricing Disclosure Package.
(r) Investment Company Act. Neither Clearwire nor any of its subsidiaries, is and, after giving effect to the sale of the Class B Common Units, the Voting Units and the Class B Common Stock and the application of the proceeds thereof will be required to register as an investment company or an entity controlled by an investment company within the meaning of the Investment Company Act of 1940, as amended, and the rules and regulations of the SEC thereunder (collectively, the Investment Company Act).
(s) Taxes. Clearwire and its subsidiaries have paid all federal, state, local and foreign taxes and filed all tax returns required to be paid or filed through the date hereof; and except as otherwise disclosed in the Registration Statement, the Pricing Disclosure Package and the Prospectus, there is no tax deficiency that has been, or could reasonably be expected to be, asserted against Clearwire or any of its subsidiaries or any of their respective properties or assets (except for such taxes that are not delinquent or that are being contested in good faith and by proper proceedings, and against which adequate reserves are being maintained in accordance with generally accepted accounting principles).
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(t) Licenses and Permits. Except with respect to the FCC Licenses, the State Licenses and the Underlying Licenses (each as defined below), Clearwire and its subsidiaries possess all licenses, certificates, permits and other authorizations issued by, and have made all declarations and filings with, the appropriate federal, state, local or foreign governmental, administrative or regulatory authorities that are necessary for the ownership, lease and operation of their respective properties or the conduct of their respective businesses as described in the Registration Statement, the Pricing Disclosure Package and the Prospectus, except where the failure to possess or make the same would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect; and except as described in the Registration Statement, the Pricing Disclosure Package and the Prospectus, neither Clearwire nor any of its subsidiaries has received notice of any revocation or modification of any such license, certificate, permit or authorization or has any reason to believe that any such license, certificate, permit or authorization will not be renewed in the ordinary course.
(u) No Labor Disputes. No labor disturbance by or dispute with employees of Clearwire or any of its subsidiaries exists or, to the best knowledge of the Clearwire Parties, is contemplated or threatened, and each of the Clearwire Parties is not aware of any existing or imminent labor disturbance by, or dispute with, the employees of any of its or its subsidiaries principal suppliers, contractors or customers, except as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
(v) Compliance with and Liability under Environmental Laws. Except as otherwise disclosed in each of the Registration Statement, the Pricing Disclosure Package and the Prospectus, (i) Clearwire and its subsidiaries (x) are, and at all prior times were, in compliance with any and all applicable federal, state, local and foreign laws, rules, regulations, requirements, decisions and orders relating to the protection of worker or public health or safety, the environment, natural resources, hazardous or toxic substances or wastes, or to pollutants or contaminants, including without limitation petroleum and other products (collectively, Environmental Laws), (y) have received and are in compliance with all permits, licenses, certificates or other authorizations or approvals required of them under applicable Environmental Laws to conduct their respective businesses, and (z) have not received written notice of any actual or potential liability under or relating to any Environmental Laws, including for the investigation or remediation of any disposal or release of hazardous or toxic substances or wastes, or to pollutants or contaminants, including without limitation petroleum and other products, that would with respect to clause (x), (y) or (z), individually or in the aggregate, be reasonably expected to have a Material Adverse Effect, and have no knowledge of any event or condition that would reasonably be expected to result in any such notice, and (ii) there are no costs or liabilities associated with Environmental Laws of or relating to
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Clearwire or its subsidiaries, except in the case of each of (i) and (ii) above, for any such failure to comply, or failure to receive required permits, licenses or approvals, or cost or liability, as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect; and (iii) except as described in each of the Registration Statement, the Pricing Disclosure Package and the Prospectus, (x) there are no proceedings that are pending, or that are known to be contemplated, against Clearwire or any of its subsidiaries under any Environmental Laws in which a governmental entity is also a party, other than such proceedings regarding which would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, (y) Clearwire and its subsidiaries are not aware of any issues regarding compliance with Environmental Laws, or liabilities or other obligations under Environmental Laws or concerning hazardous or toxic substances or wastes or, pollutants or contaminants, including without limitation petroleum and other products, that would, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, and (z) none of Clearwire and its subsidiaries anticipates material capital expenditures relating to any Environmental Laws that would, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
(w) Compliance with ERISA. (i) Each employee benefit plan, within the meaning of Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended (ERISA), that is or, in the past six years, has been maintained, administered or contributed to by Clearwire or any member of its Controlled Group (defined as any organization which is a member of a controlled group of corporations within the meaning of Section 414 of the Internal Revenue Code of 1986, as amended (the Code)) for employees or former employees of Clearwire or any member of its Controlled Group (each, a Plan) has been maintained in compliance with its terms and the requirements of any applicable statutes, orders, rules and regulations, including but not limited to ERISA and the Code except where any noncompliance would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect; (ii) no prohibited transaction, within the meaning of Section 406 of ERISA or Section 4975 of the Code, has occurred with respect to any Plan excluding transactions effected pursuant to a statutory or administrative exemption except where any such transaction would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect; (iii) for each Plan that is subject to the funding rules of Section 412 of the Code or Section 302 of ERISA, no failure to meet the minimum funding standard under Section 412 of the Code or Section 302 of ERISA, whether or not waived, has occurred or is reasonably expected to occur and, with respect to any such Plan, all minimum required contributions determined under Section 430 of the Code have been timely made; (iv) the fair market value of the assets of each Plan, which is subject to Section 412 of the Code or Section 302 of Title IV of ERISA, exceeds the present value of all benefits accrued under such Plan (determined based on those assumptions used to fund such Plan) except where any funding deficiency or the amount by which benefits accrued exceed the fair market value of assets would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect; (v) no reportable event (within the meaning of Section 4043(c) of ERISA) has occurred or is reasonably expected to occur
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(other than an event for which the 30-day notice period is waived by regulation); and (vi) neither Clearwire nor any member of its Controlled Group has incurred, nor reasonably expects to incur, any liability under Title IV of ERISA (other than administrative expenses, contributions to the Plan or premiums to the PBGC, each in the ordinary course and without default) in respect of a Plan (including a multiemployer plan, within the meaning of Section 4001(a)(3) of ERISA) in an amount that would, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
(x) Disclosure Controls. Clearwire and its subsidiaries maintain an effective system of disclosure controls and procedures (as defined in Rule 13a-15(e) of the Exchange Act) that is designed to ensure that information required to be disclosed by Clearwire in reports that it files or submits under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in the SECs rules and forms, including controls and procedures designed to ensure that such information is accumulated and communicated to Clearwires management as appropriate to allow timely decisions regarding required disclosure. Clearwire and its subsidiaries have carried out evaluations of the effectiveness of their disclosure controls and procedures as required by Rule 13a-15 of the Exchange Act.
(y) Accounting Controls. Clearwire and its subsidiaries maintain systems of internal control over financial reporting (as defined in Rule 13a-15(f) of the Exchange Act) that comply with the requirements of the Exchange Act and have been designed by, or under the supervision of, their respective principal executive and principal financial officers, or persons performing similar functions, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles. Clearwire and its subsidiaries maintain internal accounting controls sufficient to provide reasonable assurance that (i) transactions are executed in accordance with managements general or specific authorizations; (ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with generally accepted accounting principles and to maintain asset accountability; (iii) access to assets is permitted only in accordance with managements general or specific authorization; (iv) the recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences and (v) the XBRL Data is prepared in accordance with the SECs rules and guidelines applicable thereto. Except as disclosed in the Registration Statement, the Pricing Disclosure Package and the Prospectus, there are no material weaknesses or significant deficiencies in Clearwires internal controls.
(z) Insurance. Clearwire and its subsidiaries have insurance covering their respective properties, operations, personnel and businesses, including business interruption insurance, which insurance is in amounts and insures against such losses and risks as Clearwires management reasonably believes are adequate to protect Clearwire and its subsidiaries and their respective businesses; and neither Clearwire nor any of its subsidiaries has (i) received notice from any insurer or agent of such insurer that capital
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improvements or other expenditures are required or necessary to be made in order to continue such insurance or (ii) any reason to believe that it will not be able to renew its existing insurance coverage as and when such coverage expires or to obtain similar coverage at reasonable cost from similar insurers, except as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
(aa) No Unlawful Payments. Neither Clearwire nor any of its subsidiaries nor, to the best knowledge of the Clearwire Parties, any director, officer, agent, employee or other person associated with or acting on behalf of Clearwire or any of its subsidiaries has (i) used any corporate funds for any unlawful contribution, gift, entertainment or other unlawful expense relating to political activity; (ii) made any direct or indirect unlawful payment to any foreign or domestic government official or employee from corporate funds; (iii) violated or is in violation of any provision of the Foreign Corrupt Practices Act of 1977; or (iv) made any bribe, rebate, payoff, influence payment, kickback or other unlawful payment.
(bb) Compliance with Money Laundering Laws. The operations of Clearwire and its subsidiaries are and have been conducted at all times in compliance with applicable financial recordkeeping and reporting requirements of the Currency and Foreign Transactions Reporting Act of 1970, as amended, the money laundering statutes of all jurisdictions, the rules and regulations thereunder and any related or similar rules, regulations or guidelines, issued, administered or enforced by any governmental agency (collectively, the Money Laundering Laws) and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving Clearwire or any of its subsidiaries with respect to the Money Laundering Laws is pending or, to the best knowledge of Clearwire, threatened.
(cc) Compliance with OFAC. None of Clearwire, any of its subsidiaries or, to the knowledge of the Clearwire Parties, any director, officer, agent, employee or affiliate of Clearwire or any of its subsidiaries is currently subject to any U.S. sanctions administered by the Office of Foreign Assets Control of the U.S. Department of the Treasury (OFAC); and the Clearwire Parties will not directly or indirectly use the proceeds of the sale of the Class B Common Units, the Voting Units and the Class B Common Stock hereunder, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other person or entity, for the purpose of financing the activities of any person currently subject to any U.S. sanctions administered by OFAC.
(dd) No Restrictions on Subsidiaries. No subsidiary of Clearwire is currently prohibited, directly or indirectly, under any agreement or other instrument to which it is a party or is subject, from paying any dividends or from making any other distribution on such subsidiarys capital stock or membership interests, from repaying to Clearwire any loans or advances to such subsidiary from Clearwire or from transferring any of such subsidiarys properties or assets to Clearwire or any other subsidiary of Clearwire.
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(ee) No Brokers Fees. Neither Clearwire nor any of its subsidiaries is a party to any contract, agreement or understanding with any person (other than this Agreement) that would give rise to a valid claim against Clearwire or any of its subsidiaries or Sprint HoldCo for a brokerage commission, finders fee or like payment in connection with the sale of the Class B Common Units, the Voting Units and the Class B Common Stock.
(ff) No Registration Rights. Except as disclosed in the Registration Statement, Pricing Disclosure Package or the Prospectus, no person has the right to require Clearwire or any of its subsidiaries to register any securities for sale under the Securities Act by reason of the filing of the Registration Statement with the SEC or the issuance and sale of the Class B Common Units, the Voting Units and the Class B Common Stock.
(gg) Statistical and Market Data. Nothing has come to the attention of Clearwire that has caused Clearwire to believe that the statistical and market-related data included in the Registration Statement, the Pricing Disclosure Package and the Prospectus is not based on or derived from sources that are reliable and accurate in all material respects.
(hh) Sarbanes-Oxley Act. There is and has been no failure on the part of Clearwire or any of Clearwires directors or officers, in their capacities as such, to comply with any provision of the Sarbanes-Oxley Act of 2002 and the rules and regulations promulgated in connection therewith (the Sarbanes-Oxley Act).
(jj) FCC Licenses and Underlying Licenses and Spectrum Leases. (i) The business of Clearwire and its subsidiaries, as described in the Registration Statement, the Pricing Disclosure Package and the Prospectus, is being conducted in compliance with applicable requirements under the federal Communications Act of 1934, as amended, and the regulations issued thereunder, all relevant rules, regulations and published policies of the FCC (collectively, the Telecommunications Laws), except as would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect. All licenses and authorizations issued by the FCC required for the operations of Clearwire and its subsidiaries, including the Spectrum Entities (as defined in the Registration Statement, the Pricing Disclosure Package and the Prospectus) as currently conducted in the markets in which Clearwire currently operates as described in the Registration Statement, the Pricing Disclosure Package and the Prospectus are in full force and effect. Except for certain license renewal filings made by Clearwire in the ordinary course, there are no pending modifications or amendments to any licenses issued by the FCC to Clearwire or any of its subsidiaries, including the Spectrum Entities (the FCC Licenses and State Licenses), or, to the best of Clearwires knowledge, or to any license granted by the FCC to the lessor to the Spectrum Entities under a Spectrum Lease (as defined in the Pricing Disclosure Package and the Prospectus) (the Underlying Licenses), or any revocation proceedings pending with respect to any of such FCC Licenses or State Licenses, or, to the best of Clearwires knowledge, to any of such Underlying Licenses, in each case, which, if implemented or adversely decided, would, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. No event has
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occurred with respect to such FCC Licenses or State Licenses, or to the best of Clearwires knowledge, or the Underlying Licenses, which, with the giving of notice or the lapse of time or both, would constitute grounds for revocation of any of the FCC Licenses or State Licenses, or the Underlying Licenses, respectively, other than the expiration of such FCC Licenses or State Licenses, or such Underlying Licenses, respectively, in accordance with their terms. Except as disclosed in the Registration Statement, the Pricing Disclosure Package and the Prospectus, there is no condition, event or occurrence existing, nor, to the best of Clearwires knowledge, is there any proceeding being conducted or threatened by any governmental authority, which would reasonably be expected to cause the termination, suspension, cancellation, or nonrenewal of any of the FCC Licenses or State Licenses, or, to the best of Clearwires knowledge, the Underlying Licenses, or the imposition of any penalty or fine by any regulatory body with respect to any of the FCC Licenses or State Licenses, or, to the best of Clearwires knowledge, the Underlying Licenses, or Clearwire or its subsidiaries, in each case which would, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect;
(ii) No consent, approval, authorization, order or waiver of, or filing with, the FCC is required under the Telecommunications Laws to be obtained or made by Clearwire or any of its subsidiaries for the issuance and sale of the Securities or the execution, delivery and performance of this Agreement;
(iii) The execution, delivery and performance of this Agreement by Clearwire in accordance with its terms do not and will not violate any of the terms or provisions of, or constitute a default under, any of the Telecommunications Laws;
(iv) Clearwire and its subsidiaries each have filed with the FCC all necessary reports, documents, instruments, information and applications required to be filed pursuant to the Telecommunications Laws, except as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect;
(v) The issuance and sale of the Class B Common Units, the Voting Units and the Class B Common Stock and the compliance by Clearwire with this Agreement and the consummation of the transactions herein contemplated will not result in a transfer of control of Clearwire within the meaning of the Telecommunications Laws and the rules and policies of the FCC;
(vi) Clearwire and each of its subsidiaries, including the Spectrum Entities, are legally qualified to hold the FCC Licenses or State Licenses held by such entities;
(vii) Except as disclosed in the Registration Statement, the Pricing Disclosure Package and the Prospectus, there is no (a) outstanding decree, decision, judgment, or order that has been issued by the FCC against Clearwire or any of its subsidiaries, or with respect to the FCC Licenses or State Licenses, or (b) notice of violation, order to show cause, complaint, investigation or other administrative or judicial proceeding pending or,
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to the best of Clearwires knowledge, threatened by or before the FCC against Clearwire, any of its subsidiaries, the FCC Licenses or State Licenses or, to the best of Clearwires knowledge, any Underlying Licenses, that, assuming an unfavorable decision, ruling or finding, in the case of each of (a) or (b) above, would, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect;
(viii) All fees required by the FCC in connection with the FCC Licenses or State Licenses and the Underlying Licenses, including any and all down payments or installment payments required by FCC rules to be paid as of the date hereof have been timely and fully paid;
(ix) with respect to Spectrum Rights (as defined in the indentures among Clearwire LLC and Clearwire Finance, Inc., as issuers, the guarantors party thereto, and Wilmington Trust FSB, as trustee; dated November 24, 2009, December 9, 2009 and December 8, 2010) in the form of an FCC License, that a Spectrum Entity holds the FCC License and that the FCC License is currently effective in accordance with its terms and authorizes the present use of the entire portion of the radiofrequency specified in such FCC License for use by the Spectrum Entities throughout the entirety of the Geographic Service Area (as defined in the Pricing Disclosure Package and Prospectus) specified in such FCC License without any further authorization from the FCC, except to the extent that a change in FCC rules or policies affects the ability of a Spectrum Entity to use the entire portion of the radiofrequency specified in such FCC License; and (b) to the knowledge of Clearwire with respect to Spectrum Rights in the form of a Spectrum Lease (as defined in Pricing Disclosure Package and Prospectus): (1) the lessor under the spectrum lease (or, in the case of a sublease, the sublessors lessor) is the authorized holder of an FCC License that is currently effective in accordance with its terms and authorizes the present use of the entire portion of the radiofrequency specified in such FCC License throughout the entirety of the Geographic Service Area specified in such FCC License without any further authorization from the FCC, except to the extent that a change in FCC rules or policies affects the ability of a Spectrum Entity to use the entire portion of the radiofrequency specified in such spectrum lease; (2) the Geographic Service Area and the portion of the radiofrequency spectrum authorized for use by the lessor in the FCC License held by the lessor includes the entirety of both the Geographic Service Area and the portion of the radiofrequency spectrum specified in the Spectrum Lease; and the FCC License permits the lessor to lease and the Spectrum Lease validly leases to the Spectrum Entity that is a party thereto the entire portion of the radiofrequency spectrum specified in the Spectrum Lease throughout the entire Geographic Service Area specified in such Spectrum Lease for use by such Spectrum Entity in its business; except to the extent that a change in FCC rules or policies affects the ability of a Spectrum Entity to use the entire portion of the radiofrequency specified in such Spectrum Lease; and (3) either (x) the spectrum lease is of a type and category that requires FCC approval to be valid and has currently effective FCC approval, or (y) the spectrum lease is not of a type and category that requires FCC approval; and
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(x) Clearwire and each of its subsidiaries possess such valid and current licenses and authorizations issued by the FCC necessary to conduct their respective businesses as currently conducted, and neither Clearwire nor any of its subsidiaries has received any notice of proceedings relating to the revocation or modification of, or non-compliance with, any such license or authorization which, individually or in the aggregate, if the subject of an unfavorable decision, ruling or finding, would reasonably be expected to have a Material Adverse Effect.
ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF SPRINT HOLDCO
Sprint HoldCo represents and warrants to each of the Clearwire Parties as of the Execution Date and the Investment Closing as follows:
SECTION 3.1 Organization; Authorization.
(a) It is duly organized, validly existing and in good standing under the laws of its jurisdiction of formation and has all limited liability company or similar powers required to carry on its business as now conducted. Sprint HoldCo has all requisite power and authority to enter into this Agreement and to perform the obligations to be performed by it under this Agreement.
(b) The execution and delivery of this Agreement and the performance by Sprint HoldCo of its obligations under this Agreement have been duly authorized by all necessary actions on the part of Sprint HoldCo. This Agreement has been duly executed and delivered by Sprint HoldCo and constitutes, and will constitute, a legal, valid and binding obligation of Sprint HoldCo, enforceable against it and such subsidiary in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium, liquidation, fraudulent conveyance and other similar laws and principles of equity affecting creditors rights and remedies generally.
SECTION 3.2 Non-Contravention. The execution, delivery and performance of this Agreement, the consummation of the Transactions and the fulfillment of and compliance with the terms and conditions of this Agreement do not or will not (as the case may be), with the passing of time or the giving of notice or both, violate or conflict with, constitute a breach of or default under, result in the loss of any benefit under, permit the acceleration of any obligation under or create in any party the right to terminate, modify or cancel,
(a) any term or provision of the charter documents or equivalent organizational documents of Sprint HoldCo,
(b) any contractual obligation of Sprint HoldCo or its subsidiaries,
(c) any judgment, decree or order of any governmental authority to which Sprint HoldCo is a party or by which Sprint HoldCo or any of its properties are bound, or
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(d) any law, rule or regulation applicable to Sprint HoldCo and in existence on the Execution Date,
in the case of each of clauses (b) through (d), except as would not prevent or materially delay the performance by Sprint HoldCo of any of its obligations under this Agreement or the performance by Sprint HoldCo of the Transactions contemplated by this Agreement.
SECTION 3.3 Securities Act; Investigation. The Class B Common Units, the Voting Units, the shares of Class B Common Stock received by Sprint HoldCo under this Agreement are being acquired for investment only and not with a view to any public distribution thereof in violation of any of the registration requirements of the Securities Act or the securities laws, rules or regulations of any other jurisdiction applicable to the Transactions contemplated by this Agreement. Sprint HoldCo has the knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of the consideration received. Sprint HoldCo acknowledges that before the date of this Agreement, Sprint HoldCo has had access to information and documents of the Clearwire Parties and has had the opportunity to meet with members of senior management of the Clearwire Parties regarding the business and operations of the Clearwire Parties; provided, however, that this Section 3.3 does not limit or modify the representations and warranties of the Clearwire Parties set forth in this Agreement or the right of Sprint HoldCo to rely thereon. Sprint HoldCo hereby acknowledges that the Class B Common Units, the Voting Units, the shares of Class B Common Stock received pursuant to the Transactions will be subject to the terms of the Equityholders Agreement.
SECTION 3.4 Availability of Funds. On the date of the Investment Closing, Sprint HoldCo will have cash available or existing borrowing facilities that together are sufficient to enable it to consummate the Transactions contemplated by this Agreement.
SECTION 3.5 Required Filings and Consents. The execution and delivery of this Agreement by Sprint HoldCo and the consummation by Sprint HoldCo of the Transactions contemplated by this Agreement do not, and the performance of this Agreement by Sprint HoldCo will not, require any consent, approval, authorization or permit of, or filing with or notification to, any governmental authority, or where the failure to obtain those consents, approvals, authorizations or permits, or to make those filings or notifications, would not, individually or in the aggregate, prevent or materially delay the performance by Sprint HoldCo of any of its obligations under this Agreement or the performance by Sprint HoldCo of the Transactions contemplated by this Agreement.
SECTION 3.6 Brokers. Sprint HoldCo shall be solely responsible for any obligation or liability, contingent or otherwise, incurred by it for brokerage or finders fees or agents commissions or other similar payment in connection with this Agreement.
SECTION 3.7 Disclaimer. Except for the representations and warranties contained in this Article 3, neither Sprint HoldCo nor any other person makes any other express or implied representation or warranty on behalf of Sprint HoldCo.
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ARTICLE 4
CONDITIONS TO CLOSING
SECTION 4.1 Conditions to Each Partys Obligations to the Investment Closing. The respective obligations of each Party at the Investment Closing to effect the Transactions contemplated in Article 1 will be subject to the following conditions (each of which shall be determined and may be relied upon on an independent basis):
(a) no applicable law, rule or regulation will prohibit or prevent the consummation of the Transactions;
(b) no effective injunction, writ or preliminary restraining order or any order of any nature will have been issued by a governmental authority of competent jurisdiction prohibiting the consummation of the Transactions as provided in this Agreement; and
(c) the Class A Common Stock issued upon conversion of the Class B Common Stock and the Class B Common Units issued in the Transactions will have been listed on Nasdaq, subject only to official notice of issuance; and
(d) the Class A Offering shall have been consummated.
SECTION 4.2 Condition to Sprint HoldCos Obligations to the Investment Closing. The obligations of Sprint HoldCo at the Investment Closing to effect the Transactions contemplated in Article 1 will be subject to the fulfillment (or written waiver by Sprint HoldCo) at or before the Investment Closing of each of the following conditions:
(a) the representations and warranties of the Clearwire Parties set forth in Article 2 shall have been true and correct in all material respects as of the Execution Date and will be true and correct in all material respects as of the Investment Closing as though made on and as of the date of the Investment Closing (except representations or warranties that by their terms speak only as of an earlier date, which shall be true and correct in all material respects as of such earlier date);
(b) Clearwire and Clearwire LLC will have performed in all material respects all of their respective covenants and agreements required to be performed by each of them under this Agreement at or before the Investment Closing; and
(c) the MVNO Agreement (as defined in the Commitment Agreement), including the MVNO Agreement Amendment (as defined in the Commitment Agreement), is in full force and effect.
SECTION 4.3 Conditions to the Clearwire Parties Obligations to the Investment Closing. The obligations of the Clearwire Parties at the Investment Closing to effect the Transactions contemplated in Article 1 will be subject to the fulfillment (or written waiver by the Clearwire Parties) at or before the Investment Closing of each of the following conditions:
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(a) the representations and warranties of Sprint HoldCo set forth in Article 3 shall have been true and correct in all material respects as of the Execution Date and will be true and correct in all material respects as of the Investment Closing as though made on and as of the date of the Investment Closing (except representations or warranties that by their terms speak only as of an earlier date, which shall be true and correct in all material respects as of such earlier date); and
(b) Sprint HoldCo will have performed in all material respects all of their respective covenants and agreements required to be performed by each of them under this Agreement at or before the Investment Closing.
ARTICLE 5
MISCELLANEOUS PROVISIONS
SECTION 5.1 Termination. This Agreement shall terminate: (a) upon the mutual written agreement of the Parties; (b) with respect to Sprint HoldCo, upon notice by Sprint HoldCo if the conditions to the Investment Closing are incapable of being satisfied and have not been waived by Sprint HoldCo and (c) with respect to the Clearwire Parties, if the conditions to the Investment Closing are incapable of being satisfied and have not been waived by the Clearwire Parties; provided, however, no Party may rely on the failure of any condition to be satisfied if such failure was caused by the failure of such Party to use its reasonable best efforts to consummate the Transactions. No such termination shall relieve any party for liability for any intentional and willful breach of this Agreement or any fraud in connection with this agreement. If this Agreement terminates under this Section 5.1, this Agreement will immediately terminate, and there will be no liability on the part of any Party or its partners, officers, directors or stockholders, except for obligations under this Article 5. For the avoidance of doubt, in the event this Agreement is terminated under this Section 5.1, the Commitment Agreement shall continue to be in full force and effect.
SECTION 5.2 Notices. All notices, communications and deliveries under this Agreement will be made in writing signed by or on behalf of the Party making the notice, communication or delivery, will specify the Section under this Agreement under which it is given or being made, and will be delivered by first class mail (certified or registered mail, postage prepaid, return receipt requested), by hand or established overnight courier (with evidence of delivery and postage and other fees prepaid) or facsimile transmission (with facsimile acknowledgment) as follows:
To Clearwire or Clearwire LLC: |
Clearwire Corporation 1475 120th Avenue Northeast Bellevue, Washington 98005 Attention: Chief Executive Officer Facsimile No.: (425) 216-7776
with copies to: |
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Clearwire Corporation 1475 120th Avenue Northeast Bellevue, Washington 98005 Attention: Legal Department Facsimile No.: (425) 216-7776 | ||
Davis Wright Tremaine LLP 1201 Third Avenue, Suite 2200 Seattle, Washington 98101 Attention: Sarah English Tune Facsimile No.: (206) 757-7161 | ||
Kirkland & Ellis LLP 601 Lexington Avenue New York, New York 10022 Attention: Joshua N. Korff Facsimile No.: (212) 446-6460 | ||
To Sprint HoldCo: |
Sprint Nextel Corporation 2001 Edmund Halley Drive Reston, Virginia 20191 Attention: President of Strategic Planning and Corporate Initiatives Facsimile No.: (703) 433-4034
with copies to: | |
Sprint Nextel Corporation 6200 Sprint Parkway Overland Park, Kansas 66251 Attention: Vice PresidentLaw, Corporate Transactions and Business Law Facsimile No.: (913) 523-9803 | ||
King & Spalding LLP 1180 Peachtree Street, N.E. Atlanta, Georgia 30309 Attention: Michael J. Egan Facsimile No.: (404) 572-5100 |
or to the other representative or at the other address of a party as the party may furnish to the other parties in writing. Any notice, communication or delivery will be deemed received on the date of receipt by the recipient thereof if received prior to 5:00 p.m. on a Business Day in the place of receipt. Otherwise, any such notice, communication or delivery shall be deemed to have been received on the next succeeding Business Day in the place of receipt.
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SECTION 5.3 Assignment; Successors in Interest. No assignment or transfer by any Party of the Partys rights and obligations under this Agreement will be made except with the prior written consent of the other Parties. This Agreement will be binding on and will inure to the benefit of the Parties and their successors and permitted assigns, and any reference to a Party will also be a reference to the successors (whether by merger, operation of law or otherwise) or permitted assigns of that Party.
SECTION 5.4 Controlling Law; Amendment. This Agreement will be governed by and construed and enforced in accordance with the internal laws of the State of Delaware without reference to its choice of law rules. This Agreement may not be amended, modified or supplemented except by written agreement of the Parties.
SECTION 5.5 Jurisdiction. Any proceeding seeking to enforce any provision of, or based on any matter arising out of or in connection with, this Agreement or the Transactions may only be brought in the courts of the State of Delaware or the federal courts located in the State of Delaware, and each of the Parties consents to the jurisdiction of the courts (and of the appropriate appellate courts therefrom) in any proceeding and irrevocably waives, to the fullest extent permitted by law, any objection that it may now or hereafter have to the laying of the venue of any proceeding in any court or that any proceeding that is brought in any court has been brought in an inconvenient forum. Process in any proceeding may be served on any party anywhere in the world, whether within or without the jurisdiction of the court. Without limiting the foregoing, each Party agrees that service of process on the Party as provided in Section 5.2 will be deemed effective service of process on the Party.
SECTION 5.6 Specific Performance and Other Remedies. Each Party acknowledges that the rights of each Party to consummate the Transactions are special, unique and of extraordinary character and that, if any Party violates or fails or refuses to perform any covenant or agreement made by it in this Agreement, the non-breaching Party or Parties may be without an adequate remedy at law. Notwithstanding the provisions of Section 5.5, if any Party violates or fails or refuses to perform any covenant or agreement made by the Party in this Agreement, the non-breaching Party or Parties may, subject to the terms of this Agreement and in addition to any remedy at law for damages or other relief, institute and prosecute a proceeding in any court of competent jurisdiction to enforce specific performance of the covenant or agreement or seek any other equitable relief.
SECTION 5.7 Severability. Any provision of this Agreement that is prohibited or unenforceable in any jurisdiction will, as to that jurisdiction, be ineffective to the extent of the prohibition or unenforceability without invalidating the remaining provisions of this Agreement, and any prohibition or unenforceability in one jurisdiction will not invalidate or render unenforceable the provision in any other jurisdiction. If permitted by law, each Party waives any provision of law, rule or regulation that renders any provision prohibited or unenforceable in any respect.
SECTION 5.8 Counterparts. This Agreement may be executed in two or more counterparts, each of which will be deemed an original, and it will not be necessary in making proof of this Agreement or the terms of this Agreement to produce or account for more than one counterpart.
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SECTION 5.9 Enforcement of Certain Rights. Nothing expressed or implied in this Agreement is intended, or will be construed, to confer on or give any person other than the Parties, and their successors or permitted assigns, any right, remedy, obligation or liability under or by reason of this Agreement, or result in the persons being deemed a third party beneficiary of this Agreement.
SECTION 5.10 Waiver. Any provision of this Agreement may be waived if, but only if, such waiver is in writing and is signed by the Party against whom the waiver is to be effective. A waiver by a Party of the performance of any covenant, agreement, obligation, condition, representation or warranty will not be construed as a waiver of any other covenant, agreement, obligation, condition, representation or warranty. A waiver by any Party of the performance of any act will not constitute a waiver of the performance of any other act or an identical act required to be performed at a later time.
SECTION 5.11 Non-Survival of Representations and Warranties; Survival of Agreements. The representations and warranties in this Agreement will terminate at the earlier to occur of (i) the termination of this Agreement and (ii) the Investment Closing. Any covenant or other agreement of any Party herein, shall survive the Investment Closing hereunder indefinitely or for such lesser period of time as may be specified herein; provided that with respect to any covenant or other agreement that would otherwise terminate at a specified time, breaches of such covenant or other agreement will survive the Investment Closing indefinitely. No Party to this Agreement will have or make any claim against any other Party to this Agreement with respect to or arising out of the Transactions except with respect to those agreements that survive the Investment Closing or the termination of this Agreement, and, in any event, solely under the explicit provisions of this Agreement.
SECTION 5.12 Integration. This Agreement supersedes all negotiations, agreements and understandings among the Parties with respect to the subject matter of this Agreement and constitutes the entire agreement among the Parties with respect to the Transactions, with the exception of the Commitment Agreement and the Transaction Agreements (as defined in the Commitment Agreement), which are not superseded, modified or amended by this Agreement.
SECTION 5.13 Cooperation Following the Investment Closing. Following the Investment Closing, each Party will deliver to the other Party the further information and documents and will execute and deliver to the other Party the further instruments and agreements as any other Party may reasonably request to consummate or confirm the Transactions, to accomplish the purpose of this Agreement or to assure to the other Party the benefits of this Agreement.
SECTION 5.14 Fees. Each Party will pay its own fees, costs and expenses incurred in connection with this Agreement and the Transactions, including the fees, costs and expenses of its accountants, investment banks, consultants and counsel.
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SECTION 5.15 Waiver of Jury Trial. Each of the Parties irrevocably waives any and all right to trial by jury in any legal proceeding arising out of or related to this Agreement or the Transactions.
SECTION 5.16 Interpretation. Unless the context of this Agreement otherwise clearly requires,
(a) references to the plural include the singular, and references to the singular include the plural,
(b) the words include, includes and including do not limit the preceding terms or words and will be deemed to be followed by the words without limitation,
(c) references to any person include the successors and permitted assigns of that person,
(d) the terms day and days mean and refer to calendar day(s),
(e) the terms year and years mean and refer to calendar year(s), and
(f) the words in full force and effect, when used with respect to any contract, agreement or other arrangement that is binding or purports to be binding, mean, without limitation, that, if applicable, such contract, agreement or arrangement has been assumed by the relevant party pursuant to Section 365 of the Bankruptcy Code.
Unless otherwise set forth in this Agreement, references in this Agreement to
(i) any document, instrument or agreement (including this Agreement)
(A) includes all documents, instruments or agreements issued or executed in replacement of those documents, instruments or agreements, and
(B) means the document, instrument or agreement, or replacement or predecessor thereto, as amended, modified or supplemented from time to time in accordance with its terms and in effect at any given time, and
(ii) all Article and Section references in this Agreement are to Articles and Sections of this Agreement, unless otherwise specified. This Agreement will not be construed as if prepared by one of the Parties, but rather according to its fair meaning as a whole, as if all Parties had prepared it.
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IN WITNESS WHEREOF, the parties to this Agreement have executed this Investment Agreement as of the date set forth in the first paragraph of this Agreement.
CLEARWIRE CORPORATION | ||
By: | /s/ Hope Cochran | |
Name: Hope Cochran | ||
Title: Chief Financial Officer |
CLEARWIRE COMMUNICATIONS LLC | ||
By: | /s/ Hope Cochran | |
Name: Hope Cochran | ||
Title: Chief Financial Officer |
SPRINT HOLDCO, LLC | ||
By: | /s/ Charles Wunsch | |
Name: Charles Wunsch | ||
Title: President |
Schedule 1
Significant Subsidiaries
Clearwire Communications LLC
Clearwire Legacy LLC
Clear Wireless LLC
Clearwire XOHM LLC
NSAC LLC
Exhibit 99.19
LOCK-UP AGREEMENT
December 5, 2011
J.P. MORGAN SECURITIES LLC
MERRILL LYNCH, PIERCE, FENNER
& SMITH INCORPORATED
As Representatives of
the several Underwriters listed in
Schedule 1 to the Underwriting
Agreement referred to below
383 Madison Avenue
New York, NY 10179
Re: Clearwire Corporation Public Offering
Ladies and Gentlemen:
The undersigned understands that you, as Representatives of the several Underwriters (as defined below), propose to enter into an Underwriting Agreement (the Underwriting Agreement) with Clearwire Corporation, a Delaware corporation (the Company), providing for the public offering (the Public Offering) by the several Underwriters named in Schedule 1 to the Underwriting Agreement (the Underwriters), of Class A Common Stock, of the Company (the Securities). Capitalized terms used herein and not otherwise defined shall have the meanings set forth in the Underwriting Agreement.
In consideration of the Underwriters agreement to purchase and make the Public Offering of the Securities, and for other good and valuable consideration receipt of which is hereby acknowledged, the undersigned hereby agrees that, without the prior written consent of J.P. Morgan Securities LLC and Merrill Lynch, Pierce, Fenner & Smith Incorporated, on behalf of the Underwriters, the undersigned will not, during the period beginning on the date of the prospectus relating to the Public Offering (the Prospectus) and ending 60 days after the date of the Prospectus, (1) lend, offer, pledge, sell, contract to sell, sell any option or contract to purchase, purchase any option or contract to sell, grant any option, right or warrant to purchase, or otherwise transfer or dispose of, directly or indirectly, any shares of Class A Common Stock, $0.0001 per share par value, of the Company (the Common Stock) or any securities convertible into or exercisable or exchangeable for Common Stock held by the undersigned on the date hereof (including, without limitation, Common Stock or such other securities which may be deemed to be beneficially owned by the undersigned in accordance with the rules and regulations of the Securities and Exchange Commission and securities which may be issued upon exercise of a stock option or warrant), or publicly disclose the intention to make any offer, sale, pledge or disposition, (2) enter into any swap or other agreement that transfers, in whole or in part, any of the economic consequences of ownership of the Common Stock or such other securities, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Common Stock or such other securities, in cash or otherwise or (3) make any demand for or exercise any
right with respect to the registration of any shares of Common Stock or any security convertible into or exercisable or exchangeable for Common Stock. The foregoing restrictions shall not apply to (i) the Securities to be sold by the undersigned pursuant to the Underwriting Agreement, (ii) sales of Common Stock (or any securities convertible into or exercisable or exchangeable for Common Stock) by all officers, directors or major stockholders signatory to a lock-up agreement not to exceed 1,500,000 shares in aggregate, (iii) sales pursuant to any sales plan in effect on the date hereof that complies with Rule 10b5-1 under the Securities Exchange Act of 1934, as amended (the Exchange Act), (iv) any person entering into a sales plan that complies with Rule 10b5-1 under the Exchange Act after the date hereof, provided that (x) such plan provides that no sales may be made thereunder until the end of the 60-day restricted period and (y) no filing or other public announcement is required or voluntarily made by such person or the Company in connection with the execution of any such sales plan, (v) any such sales, purchases, grants, transfers, dispositions or arrangements to settle or otherwise close any hedging instruments that were outstanding prior to the date hereof, (vi) (x) any disposition by 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) and Middlefield Ventures, Inc., a Delaware corporation (Middlefield, and together with Intel A, Intel B, Intel C, Intel Capital and Intel Cayman, Intel) of the shares of Common Stock that Intel received as Merger Consideration as defined in and pursuant to Section 2.5 of the Transaction Agreement and Plan of Merger, dated as of May 7, 2008, as amended, by and among the Company, Sprint Nextel Corporation, a Kansas corporation, Comcast Corporation, a Pennsylvania corporation, Time Warner Cable Inc., a Delaware corporation, Bright House Networks, LLC, a Delaware limited liability company, Google Inc., a Delaware corporation and Intel Corporation, a Delaware corporation (the Transaction Agreement) or (y) any contract, option or other arrangement or understanding entered into by Intel with respect to the hedging of such shares, (vii) transfers of shares of Common Stock or any security convertible, exchangeable for or exercisable into Common Stock as a bona fide gift or gifts or as a result of the operation of law or testate or intestate succession, (viii) transfers to a trust, partnership, limited liability company or other entity, the beneficial interests of which are held by the transferor; provided, in the case of clauses (vii) and (viii), (A) such transferee agrees to be bound by the same terms as the transferor under this agreement, (B) no filing by any party (donor, donee, transferor or transferee) under the Exchange Act shall be required or shall be voluntarily made in connection with such transfer or distribution (other than a filing on a Form 5, Schedule 13D or Schedule 13G (or 13D/A or 13G/A) made after the expiration of the 60-day restricted period referred to above) and (C) each party (donor, donee, transferor or transferee) shall not be required by law (including without limitation the disclosure requirements of the Securities Act of 1933, as amended and the Exchange Act) to make, and shall agree to not voluntarily make, any public announcement of the transfer or disposition, (ix) sales or other dispositions in connection with any merger, share exchange, consolidation, tender offer or other similar corporate transaction or (x) any such sale, transfer or disposition by the undersigned pursuant to Section 2.13 of the Equityholders Agreement dated as of November 28, 2008 (the Equityholders Agreement), among the undersigned, the Company and the other parties thereto, as the same may be amended from time to time [Applicable to Sprint HoldCo:] [or Section 5.11(g) of the Amended and Restated Operating Agreement of Clearwire Communications LLC, dated as of November 28, 2008, among the undersigned, the Company and the other parties thereto, as the same may be amended from time to time.].
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In furtherance of the foregoing, the Company and any duly appointed transfer agent for the registration or transfer of the securities described herein, are hereby authorized to decline to make any transfer of securities if such transfer would constitute a violation or breach of this Letter Agreement.
The undersigned hereby represents and warrants that the undersigned has full power and authority to enter into this Letter Agreement. All authority herein conferred or agreed to be conferred and any obligations of the undersigned shall be binding upon the successors, assigns, heirs or personal representatives of the undersigned.
J.P. Morgan Securities LLC and Merrill Lynch, Pierce, Fenner & Smith Incorporated, as Representatives of the several Underwriters, agree that (i) the undersigned will be released from any obligations under this Letter Agreement if, and, to the extent that, any other entity or person (including any officer or director of the Company) shall be released from any obligation under any similar agreement, arrangement or understanding entered into in connection with the Public Offering of the Securities and (ii) they shall notify the undersigned of any such release within three (3) business days after such release.
The undersigned understands that (i) if the Underwriting Agreement does not become effective, or if the Underwriting Agreement (other than the provisions thereof which survive termination) shall terminate or be terminated prior to payment for and delivery of the Common Stock to be sold thereunder, the undersigned shall be released from all obligations under this Letter Agreement and (ii) if any executive officer or director of the Company or any stockholder that is party to the Equityholders Agreement signs a lock-up agreement with terms more favorable to such person than this Letter Agreement, the undersigned shall also be entitled to such more favorable terms of such lock-up agreement. The undersigned understands that the Underwriters are entering into the Underwriting Agreement and proceeding with the Public Offering in reliance upon this Letter Agreement.
This Letter Agreement and any claim, controversy or dispute arising under or related to this Letter Agreement shall be governed by and construed in accordance with the laws of the State of New York, without regard to the conflict of laws principles thereof.
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Very truly yours,
[NAME OF STOCKHOLDER] | ||
By: | ||
Name: | ||
Title: |
Exhibit 99.20
NON-UNANIMOUS WRITTEN CONSENT TO ACTION
IN LIEU OF SPECIAL MEETING OF THE STOCKHOLDERS
OF
CLEARWIRE CORPORATION
Effective December 7, 2011
The undersigned stockholders of Clearwire Corporation, a Delaware corporation (the Company), collectively hold of record, or are otherwise entitled to vote in the aggregate, the minimum number of votes that would be necessary to authorize or take the action set forth in the following resolutions at a meeting at which all shares entitled to vote on this action were present and voted, and therefore, in accordance with Section 228 of the Delaware General Corporation Law and in accordance with the Companys Restated Certificate of Incorporation (as amended, the Charter) and Bylaws, without the necessity of a formal meeting, the undersigned stockholders hereby adopt the following resolutions and hereby consent to the taking of the actions herein set forth (the Consent):
APPROVAL OF AMENDMENT TO THE COMPANYS CERTIFICATE OF INCORPORATION
WHEREAS, the Board, by resolution dated November 30, 2011, deemed it to be in the best interest of the Company and the stockholders that the Company amend its Charter to increase the number of authorized shares of Class A Common Stock to 2,000,000,000 and the number of authorized shares of Class B Common Stock to 1,400,000,000, by adopting the amendment set forth on Exhibit A hereto (the Charter Amendment);
WHEREAS, the Board has approved the Charter Amendment and has recommended that the stockholders of the Company approve and adopt the Charter Amendment; now, therefore
IT IS HEREBY RESOLVED, that the stockholders approve and adopt the Charter Amendment in the form adopted and approved by the Board as set forth on Exhibit A hereto.
The resolutions adopted by the undersigned stockholders on the date hereof are effective immediately but no action pursuant to those resolutions may be taken until 20 calendar days after a written information statement containing the information specified in Schedule 14C under the Securities Exchange Act of 1934, as amended, is transmitted to the stockholders of the Company. The execution of this Consent shall constitute a written waiver of any notice required by the Delaware General Corporation Law and the Companys Charter and Bylaws. This Consent may be executed in counterparts, each of which shall be an original, but all of which together shall constitute the same document. Delivery of an originally executed signature page or pages hereto, a counterpart signature page, or a photocopy thereof transmitted by telephone facsimile transmission, shall be as effective as delivery of a manually signed counterpart of this Consent.
SPRINT HOLDCO, LLC | ||||||
Date: December 7, 2011 | By: | /s/ Charles R. Wunsch | ||||
Name: | Charles R. Wunsch | |||||
Title: | President |
[Signature Page to Stockholder Written Consent]
COMCAST CORPORATION, as Strategic Investor Representative | ||||||
Date: December 6, 2011 | By: | /s/ Arthur R. Block | ||||
Name: | Arthur R. Block | |||||
Title: | Senior Vice President |
[Signature Page to Stockholder Written Consent]
INTEL CAPITAL CORPORATION | ||||||||
Date: November 30, 2011 | By: | /s/ Arvind Sodhani | ||||||
Name: | Arvind Sodhani | |||||||
Title: | President |
INTEL CAPITAL (CAYMAN) CORPORATION | ||||||||
Date: November 30, 2011 | By: | /s/ Arvind Sodhani | ||||||
Name: | Arvind Sodhani | |||||||
Title: | President |
MIDDLEFIELD VENTURES, INC. | ||||||||
Date: November 30, 2011 | By: | /s/ Arvind Sodhani | ||||||
Name: | Arvind Sodhani | |||||||
Title: | President |
INTEL CAPITAL WIRELESS INVESTMENT CORPORATION 2008A | ||||||||
Date: November 30, 2011 | By: | /s/ Arvind Sodhani | ||||||
Name: | Arvind Sodhani | |||||||
Title: | President |
INTEL CAPITAL WIRELESS INVESTMENT CORPORATION 2008B | ||||||||
Date: November 30, 2011 | By: | /s/ Arvind Sodhani | ||||||
Name: | Arvind Sodhani | |||||||
Title: | President |
INTEL CAPITAL WIRELESS INVESTMENT CORPORATION 2008C | ||||||||
Date: November 30, 2011 | By: | /s/ Arvind Sodhani | ||||||
Name: | Arvind Sodhani | |||||||
Title: | President |
[Signature Page to Stockholder Written Consent
Approving Amendment to the Certificate of Incorporation]
Exhibit A
CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
OF
CLEARWIRE CORPORATION
Clearwire Corporation, a corporation organized and existing under the laws of the State of Delaware, hereby certifies as follows:
1. | The name of the corporation (hereinafter called the Corporation) is Clearwire Corporation. |
2. | The date of filing the original certificate of incorporation of the Corporation with the Secretary of State of the State of Delaware was May 14, 2008. |
3. | An Amended and Restated Certificate of Incorporation was filed with the Secretary of State of the State of Delaware with an effective time of 1:00 a.m. Eastern Standard Time on November 28, 2008 (the Restated Charter). |
4. | The Restated Charter was amended by the filing of Certificates of Amendment with the Secretary of State of the State of Delaware on November 26, 2008 and December 21, 2009. |
6. | The Restated Charter of the Corporation is hereby amended by striking out the first sentence of Section 4.1 thereof and by substituting in lieu of said sentence the following new first sentence in Section 4.1: |
Section 4.1 Capitalization. The total number of shares of all classes of stock that the Corporation is authorized to issue is 3,415,000,000 shares, consisting of 15,000,000 shares of Preferred Stock, par value $.0001 per share (Preferred Stock), 2,000,000,000 shares of Class A Common Stock, par value $.0001 per share (Class A Common Stock), and 1,400,000,000 shares of Class B Common Stock, par value $.0001 per share (Class B Common Stock) together with the Class A Common Stock, the Common Stock).
7. | The foregoing amendment was duly adopted in accordance with Sections 242 and 228 of the General Corporation Law of the State of Delaware. |
IN WITNESS WHEREOF, the undersigned has executed this Certificate of Amendment of Certificate of Incorporation of Clearwire Corporation as of the day of , 2011.
CLEARWIRE CORPORATION | ||
By: | ||
Name: | ||
Title: |