Exhibit
10.1


 


EXECUTION VERSION


PRIVATE AND CONFIDENTIAL


 


CONFIDENTIAL SETTLEMENT MATERIALS —
SUBJECT TO


DELAWARE UNIFORM RULE OF
EVIDENCE 408 — NOT TO BE USED OR


DISCLOSED FOR ANY PURPOSE OTHER THAN
SETTLEMENT


 


SETTLEMENT AGREEMENT AND MUTUAL
RELEASE


 


This Settlement Agreement and Mutual Release
(this “Agreement”) is entered into
as of October 18, 2009, by and among Sprint Nextel Corporation (f/k/a
Sprint Corporation), a Kansas corporation, WirelessCo L.P., a Delaware limited
partnership, Sprint Spectrum L.P., a Delaware limited partnership, SprintCom, Inc.,
a Kansas corporation, Sprint Communications Company, L.P., a Delaware limited
partnership, Nextel Communications, Inc., a Delaware corporation,
PhillieCo L.P., a Delaware limited partnership, and APC PCS LLC, a Delaware
limited liability company (collectively, the “Sprint
Parties”), Horizon Personal Communications, Inc., an Ohio
corporation, Bright Personal Communications Services, LLC, an Ohio limited
liability company, iPCS Wireless, Inc., a Delaware corporation, and iPCS, Inc.,
a Delaware corporation  (collectively,
the “iPCS Parties” and together
with the Sprint Parties, the “Parties”).


 


Whereas, on July 15,
2005, iPCS Wireless, Inc. initiated a lawsuit against certain of the
Sprint Parties asserting, among other things, breach of contract and seeking
numerous remedies, which is currently pending in the Circuit Court of Cook
County, Chancery Division (the “Circuit Court”)
and is styled iPCS Wireless, Inc. v.  Sprint Corporation,
WirelessCo L.P., Sprint Spectrum L.P., SprintCom, Inc. and Sprint
Communications Company, L.P., Case No. 05 CH 11792
(the “Circuit Court Sprint/Nextel Merger Litigation”), and on September 22,
2008, certain of the Sprint Parties filed a petition for relief from
judgment in the Circuit Court Sprint/Nextel Merger Litigation under Section 2-1401
of the Illinois Code of Civil Procedure, which is currently pending in the Illinois
Appellate Court, Case No. 09-0424 (the “Section 2-1401
Appeal” and together with the Circuit Court Sprint/Nextel
Merger Litigation, the “Illinois Sprint/Nextel
Merger Litigation”); and on July 22, 2005, Horizon Personal
Communications, Inc. and Bright Personal Communications Services, LLC
initiated a lawsuit against the Sprint Parties asserting, among other things,
breach of contract and seeking numerous remedies, which is currently pending in
the Delaware Court of Chancery (the “Delaware Chancery Court”)
and is styled Horizon Personal Communications, Inc. and Bright
Personal Communications Services, LLC v. Sprint Corporation,
WirelessCo L.P., Sprint Spectrum L.P., SprintCom, Inc., Sprint
Communications Company, L.P., Nextel Communications, Inc., PhillieCo L.P.
and APC PCS LLC,  C.A. No. 1518-N (together with the Illinois Sprint/Nextel Merger
Litigation, the “Sprint/Nextel Merger Litigation”);


 


Whereas, on May 7,
2008, certain of the Sprint Parties initiated a lawsuit against the iPCS
Parties seeking a declaratory judgment, which was pending in the Delaware
Chancery Court, is currently stayed, and is styled Sprint Nextel Corporation,
WirelessCo L.P., Sprint Spectrum L.P., SprintCom, Inc. and Sprint
Communications Company, L.P. v. iPCS, Inc., iPCS Wireless, Inc.,
Horizon Personal Communications, Inc. and Bright Personal Communications


 

















 


Services,
LLC,  C.A. No. 3746-VCP (the “Delaware Chancery Court Sprint/Clearwire Transaction Litigation”); and on May 12,
2008, certain of the iPCS Parties initiated a lawsuit against certain of the
Sprint Parties seeking declaratory and injunctive relief, which is currently
pending in the Circuit Court and is styled iPCS Wireless, Inc., Horizon
Personal Communications, Inc. and Bright Personal Communications Services,
LLC v. Sprint Nextel Corporation, WirelessCo L.P., Sprint Spectrum L.P.,
SprintCom, Inc. and Sprint Communications Company, L.P., Case No. 08 CH 17214 (the “Circuit
Court Sprint/Clearwire Transaction Litigation” and together with the
Delaware Chancery Court Sprint/Clearwire Transaction Litigation, the “Sprint/Clearwire Transaction Litigation”);


 


Whereas, on September 10,
2009, certain of the iPCS Parties initiated a lawsuit against certain of the
Sprint Parties seeking an injunction, which is currently pending in the Circuit
Court and is styled iPCS Wireless, Inc., Horizon Personal Communications, Inc.
and Bright Personal Communications Services, LLC v. Sprint Nextel Corporation,
WirelessCo L.P., Sprint Spectrum L.P., SprintCom, Inc. and Sprint
Communications Company, L.P., Case No. 09 CH 32574 (the “Sprint/Virgin
Transaction Litigation”); and


 


Whereas, on the terms
and subject to the conditions contained herein, the Parties wish to compromise
and settle all disputes between them, including but not limited to the claims
asserted in the Sprint/Nextel Merger Litigation, the Sprint/Clearwire
Transaction Litigation and the Sprint/Virgin Transaction Litigation
(collectively, the “Litigation”).


 


Now, therefore, in
consideration of the mutual covenants and promises set forth herein, and for
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the Parties, intending to be legally bound, hereby agree
as follows:


 


1.                                      Agreement
and Plan of Merger.  The Parties
are executing and delivering this Agreement contemporaneously with the
execution and delivery by iPCS, Inc. and Sprint Nextel Corporation of an Agreement
and Plan of Merger (the “Merger Agreement”),
in the form attached as Exhibit A to this Agreement.


 


2.                                      Effectiveness
of Provisions.  This Section 2
and Sections 1, 4, 5, 6, 7, 8, 9, 10 and 11 of this Agreement shall be
effective from and after the date of this Agreement (the “Signing Date”);
provided that Sections 6(a), 6(b), 7 and 9 of this Agreement shall terminate (i) if
the Merger Agreement is terminated for any reason or (ii) upon written
notice by the Sprint Parties or the iPCS Parties to the other if the Offer (as
defined in the Merger Agreement) has not closed by the Outside Date (as defined
in the Merger Agreement) and the Party providing the notice is unable to
terminate the Merger Agreement because a judgment, order, injunction, decree,
stipulation or award precludes the termination of the Merger Agreement (each, a “Termination Event”).  Section 3
of this Agreement shall only become binding and effective at the time of the
closing of the Merger (as defined in the Merger Agreement) (the “Effectiveness Time”).


 

















 


3.                                      General
Releases.


 


(a)                                 Sprint
Release of the iPCS
Parties.  As of the
Effectiveness Time, except for any claims arising under or relating to a breach
of this Agreement, the Merger Agreement and/or the agreements and transactions
contemplated hereby and thereby, each of the Sprint Parties and their respective
officers, directors, shareholders, partners, members, affiliates, subsidiaries,
employees, agents, attorneys and representatives release  and forever discharge the iPCS Parties and their respective
officers, directors, shareholders, partners, members, affiliates, subsidiaries,
employees, agents, attorneys and representatives  (collectively, the “iPCS
Released Parties”) from all liabilities, claims, attorney’s
fees, damages, injuries, causes of action, and losses of any kind (including,
without limitation, any claims for equitable or injunctive relief) that any of
the Sprint Parties ever had, now has, has asserted, could have asserted or may
assert in the future against any of the iPCS Released Parties that exist or may
exist as of the Effectiveness Time, including but not limited to all claims
that have been or could have been asserted in the Litigation (collectively, “Sprint’s Claims”).


 


(b)                                 iPCS Release of the Sprint Parties. 
As of the Effectiveness Time, except for any claims
arising under or relating to a breach of this Agreement, the Merger Agreement
and/or the agreements and transactions contemplated hereby and thereby, each of the iPCS Parties and their
respective officers, directors, shareholders, partners, members, affiliates,
subsidiaries, employees, agents, attorneys and representatives release  and forever discharge the Sprint Parties
and their respective officers, directors, shareholders, partners, members, affiliates,
subsidiaries, employees, agents, attorneys and representatives  (collectively, the “Sprint
Released Parties”) from all liabilities, claims, attorney’s
fees, damages, injuries, causes of action, and losses of any kind (including,
without limitation, any claims for equitable or injunctive relief) that any of
the iPCS Parties ever had, now
has, has asserted, could have asserted or may assert in the future against any
of the Sprint Released Parties that exist or may exist as of the Effectiveness
Time, including but not limited to all claims that have been or could have been
asserted in the Litigation (collectively, “iPCS’s
Claims”).


 


(c)                                  iPCS
Release of iPCS Directors and Officers.  As of the Effectiveness Time, each of the
iPCS Parties and each of their respective subsidiaries releases  and forever discharges each of the iPCS
Parties’ respective (i) officers, directors and employees (in any and all
capacities relating to the iPCS Parties, including, without limitation, as
shareholders and affiliates of the iPCS Parties) (collectively, the “iPCS Released Insiders”) from all
liabilities, claims, attorney’s fees, damages, injuries, causes of action, and
losses of any kind (including, without limitation, any claims for equitable or
injunctive relief) that any of the iPCS Parties ever had, now has, has
asserted, could have asserted or may assert in the future against any of the
iPCS Released Insiders that exist or may exist as of the Effectiveness Time,
including but not limited to all claims that have been or could have been
asserted in or relating to the Litigation (collectively, “iPCS’s Insider Claims”), other than claims
arising from acts or omissions that constitute (1) fraud, (2) breach
of fiduciary duty (other than with respect to the Litigation and any actions or
omissions taken or not taken in connection with the Litigation), (3) a
violation of law, (4) an attempt to recover amounts paid to any iPCS
Released Insider, the payment of which constitutes a breach by iPCS, Inc.
of the Merger Agreement or (5) any willful and material violation of any
written employment or other written policy of iPCS, Inc. and (ii) attorneys
and


 

















 


representatives
(collectively, the “iPCS Released Outsiders”)
from all liabilities, claims, attorney’s fees, damages, injuries, causes of
action, and losses of any kind (including, without limitation, any claims for
equitable or injunctive relief) that any of the iPCS Parties ever had, now has,
has asserted, could have asserted or may assert in the future against any of
the iPCS Released Outsiders that exist or may exist as of the Effectiveness
Time, in each case solely with respect to or involving the Litigation and any
actions or omissions taken or not taken in connection with the Litigation
(together with Sprint’s Claims, iPCS’s Claims and iPCS’s Insider Claims, the “Released Claims”).  The Parties hereby
acknowledge and agree that none of the exceptions to the releases set forth in
this Section 3(c) shall create or be deemed to create a claim or
cause of action against any iPCS Released Insider or any iPCS Released Outsider
that would not otherwise exist under applicable law.


 


(d)                                 Complete Release. 
Effective as of the Effectiveness Time, this Agreement constitutes the
complete compromise, settlement, accord and satisfaction of all of the Released
Claims.


 


(e)                                  Dismissal of Litigation. 
As soon as practicable after the Effectiveness Time, the Parties will
jointly execute, deliver and file with the Delaware Chancery Court, the Circuit
Court and the Illinois Appellate Court such documents as may be necessary or
desirable to effect the dismissal with prejudice of the Litigation.


 


(f)                                    Dissolution of Injunction. 
Upon the
Effectiveness Time, the Parties will submit jointly to the Circuit Court an
Agreed Motion to Vacate the Court’s Order entered on January 30, 2009 (the
“Injunction Order”) and will request
that the Circuit Court issue an order vacating the Injunction Order.  Additionally, upon the Effectiveness Time,
the Sprint Parties will dismiss with prejudice the Section 2-1401 Appeal.


 


4.                                      Expenses. 
The Parties will pay their own expenses and attorney’s fees incurred in
connection with the Litigation and with the negotiation and execution of this
Agreement.


 


5.                                      Stays of Litigation.


 


(a)                                 Illinois
Sprint/Nextel Merger Litigation.  On the Signing Date, or on the next business
day thereafter if the Signing Date is not a business day, the Parties shall
file with (i) the Circuit Court an Agreed Motion to Stay, in the form
attached as Exhibit B to this Agreement (the “Sprint/Nextel
Motion”), and an Agreed Order, in the form attached as Exhibit C
to this Agreement (the “Sprint/Nextel Stay”),
with respect to the Illinois Sprint/Nextel Merger Litigation and (ii) the
Illinois Appellate Court an Agreed Motion to Stay, in the form attached as Exhibit D
to this Agreement (the “2-1401 Motion”),
and an Agreed Order, in the form attached as Exhibit D to this
Agreement (the “2-1401 Stay”), with respect to the
2-1401 Appeal.  The Parties shall take
all steps necessary as soon as practicable (i) to cause the Circuit Court
to hear the Sprint/Nextel Motion and to issue the Sprint/Nextel Stay, as the
same may be modified in the Circuit Court’s discretion, and (ii) to
present the 2-1401 Motion to the Illinois Appellate Court and to cause the
Illinois Appellate Court to issue the 2-1401 Stay, as the same may be modified
in the Illinois Appellate Court’s discretion. 
The Parties hereby acknowledge and agree that the Sprint/Nextel Stay
shall not be deemed to impact any rights, duties or obligations under that


 

















 


certain
Forbearance Agreement, dated as of July 28, 2005, by and among certain
affiliates of Sprint Nextel Corporation
and the iPCS Parties (the “Nextel Forbearance
Agreement”) and that the parties thereto shall continue to be
bound by and comply fully with the terms and conditions thereof.  If the Sprint/Nextel Stay is vacated for any
reason, the Sprint Parties shall have until 120 days after the date on which
the Sprint/Nextel Stay is vacated to comply with the requirements of the Final
Order and Judgment issued by the Circuit Court on January 30, 2009 in the
Circuit Court Sprint/Nextel Merger Litigation.


 


(b)                                 Sprint/Clearwire
Transaction Litigation.  On the Signing Date, or on the next business
day thereafter if the Signing Date is not a business day, the Parties shall
file with the Circuit Court an Agreed Motion to Stay, in the form attached as Exhibit E
to this Agreement (the “Sprint/Clearwire Motion”),
and an Agreed Order, in the form attached as Exhibit F to this
Agreement (the “Sprint/Clearwire Stay”), with
respect to the Circuit Court Sprint/Clearwire Transaction Litigation.  The Parties shall take all steps necessary to
cause the Circuit Court to hear the Sprint/Clearwire Motion and to issue the
Sprint/Clearwire Stay, as the same may be modified in the Circuit Court’s
discretion, in each case as soon as practicable.  The Parties hereby acknowledge and agree that
the Sprint/Clearwire Stay shall not stay any rights, duties or obligations
under the Agreed Order and Stipulation issued by the Circuit Court on November 17,
2008 in the Circuit Court Sprint/Clearwire Transaction Litigation (the “Sprint/Clearwire Order”) and that the iPCS Parties and the
Sprint Parties that are bound thereby shall continue to be bound by and comply
fully with the terms and conditions of the Sprint/Clearwire Order.  In addition, notwithstanding anything to the
contrary contained in this Agreement, if Clearwire Corporation takes any action
that does not comply with the Sprint/Clearwire Order or if Clearwire
Corporation provides notice to the iPCS Parties of its intention to launch a network or to promote or sell products or
services in any part of the applicable iPCS Parties’ service areas, as set
forth in the applicable Sprint PCS Management
Agreements, as amended or supplemented (the “Service
Areas”), pursuant to Paragraph 3 of the Sprint/Clearwire Order, the
Sprint/Clearwire Stay shall be automatically vacated and the iPCS Parties shall
be entitled to pursue all available remedies.


 


(c)                                  Sprint/Virgin Transaction
Litigation.  On the Signing Date, or on the next business
day thereafter if the Signing Date is not a business day, the Parties shall
file with the Circuit Court an Agreed Motion to Stay, in the form attached as Exhibit G
to this Agreement (the “Sprint/Virgin Motion”),
and an Agreed Order, in the form attached as Exhibit H to this
Agreement (the “Sprint/Virgin Stay” and together
with the Sprint/Nextel Stay, the 2-1401 Stay and the Sprint/Clearwire Stay, the
“Stays of Litigation”), with respect to
the Sprint/Virgin Transaction Litigation. 
The Parties shall take all steps necessary to cause the Circuit Court to
hear the Sprint/Virgin Motion and to issue the Sprint/Virgin Stay, as the same
may be modified in the Circuit Court’s discretion, in each case as soon as
practicable.  The Sprint Parties hereby
unconditionally and irrevocably covenant and agree that neither the Sprint
Parties nor any affiliate of the Sprint Parties shall (i) from and after
the Signing Date and through the earlier of (1) the occurrence of a
Termination Event and (2) the Effectiveness Time, reduce, directly or
indirectly, or shall permit to be reduced, the reseller rates under the Virgin
Mobile resale arrangement applicable to the iPCS Parties and their affiliates
under the applicable Sprint PCS Management Agreements, as amended or
supplemented as of the Signing Date (the “Reseller Rates”),
or (ii) claim or assert in any litigation proceeding or other action
between the Sprint


 

















 


Parties and the
iPCS Parties or any of their respective affiliates that the iPCS Parties or any
of their affiliates has waived the right to challenge the permissibility of any
prior direct or indirect reductions of the Reseller Rates.


 


(d)                                 Continuance of Stays.  Except as set
forth in Section 5(b) or as provided in the Stays of Litigation, from
and after the Signing Date and through the Effectiveness Time, none of the
Parties shall (i) seek to modify or vacate the Stays of Litigation or the
Delaware Sprint/Clearwire Stay (as defined below) or (ii) take any other
action inconsistent with the continuation of the Stays of Litigation or the
Delaware Sprint/Clearwire Stay. 
Notwithstanding the foregoing sentence, upon the occurrence of a
Termination Event, the Stays of Litigation shall be automatically vacated and
the Parties shall be entitled to seek to modify or vacate the Delaware
Sprint/Clearwire Stay.  For purposes of
this Agreement, “Delaware Sprint/Clearwire Stay”
shall mean the Order issued by the Delaware Chancery Court on October 8,
2008 with respect to the Delaware Chancery Court Sprint/Clearwire Transaction
Litigation.


 


(e)                                  Compliance With
Stays.  The Parties hereby acknowledge and agree
that the obligations imposed by each of the Stays of Litigation are valid and
enforceable obligations of this Agreement, and that a breach of any such
obligation shall constitute a breach of this Agreement.


 


6.                                      Covenant Not To Sue or To Assist
Third Parties.


 


(a)                                 Covenant by iPCS Parties.  From and after
the Signing Date, so long as this Section 6(a) remains in effect in
accordance with the terms of this Agreement, except (i) for any
claims arising under or relating to a breach of this Agreement, the Merger
Agreement and/or the agreements and transactions contemplated hereby and
thereby, and (ii) as set forth in Section 5(b), no iPCS Party will (1) commence or in any manner seek relief
against any of the Sprint Parties through any suit or proceeding, (2) become
a party (unless such claims are asserted against one or more of the iPCS
Parties) to any suit or proceeding arising from or in connection with an
attempt by or on behalf of any third party to enforce or collect an amount
based on any Released Claim (including, without limitation, any claim that will
become a Released Claim as of the Effectiveness Time), or (3) assist in
any manner any other third party in connection with any threatened or existing
litigation such party may have against any Sprint Party; provided, however,
that an iPCS Party may comply
with a subpoena if one is issued by a court of competent jurisdiction.  In addition, no iPCS Party will assist the efforts of any third party attempting
to enforce or collect an amount based on a Released Claim (including, without
limitation, any claim that will become a Released Claim as of the Effectiveness
Time), unless required to do so by a court of competent jurisdiction.


 


(b)                                 Covenant by Sprint Parties.  From and after
the Signing Date, so long as this Section 6(b) remains in effect in
accordance with the terms of this Agreement, except for any claims
arising under or relating to a breach of this Agreement, the Merger Agreement
and/or the agreements and transactions contemplated hereby and thereby, no Sprint Party will (i) commence or
in any manner seek relief against any of the iPCS Parties through any suit or
proceeding, (ii) become a party (unless such claims are asserted against
one or more of the Sprint Parties) to any suit or proceeding arising from or in
connection with an attempt by or on behalf of any third 


 

















 


party to enforce
or collect an amount based on any Released Claim (including, without
limitation, any claim that will become a Released Claim as of the Effectiveness
Time), or (iii) assist in any manner any other third party in connection
with any threatened or existing litigation such party may have against any iPCS
Party; provided, however, that a Sprint Party may comply with a subpoena if one
is issued by a court of competent jurisdiction. 
In addition, no Sprint Party will assist the efforts of any third party
attempting to enforce or collect an amount based on a Released Claim (including,
without limitation, any claim that will become a Released Claim as of the
Effectiveness Time), unless required to do so by a court of competent
jurisdiction.


 


(c)                                  Preservation of Claims. 
Notwithstanding anything to the contrary contained in this Agreement, (i) from
and after the Signing Date and through the earlier of (1) the occurrence
of a Termination Event and (2) the Effectiveness Time, the Parties hereby
acknowledge and agree that any and all rights of the Parties and their
respective affiliates with respect to any and all unasserted claims or causes
of action that the Parties and their respective affiliates ever had, now have,
could have asserted or may have or may assert in the future against any of the
other Parties and their respective affiliates (“Unasserted
Claims”) shall be preserved, maintained and protected to the fullest
extent permitted by law, (ii) from and after the Signing Date and through
the earlier of (1) the occurrence of a Termination Event and (2) the
Effectiveness Time, the Parties hereby acknowledge and agree that all
applicable statutes of limitation with respect to Unasserted Claims shall be,
and shall be deemed to be, tolled for all purposes, (iii) the Parties
hereby acknowledge and agree that the Parties and their respective affiliates
shall not be deemed to have waived the right to pursue any Unasserted Claims as
a result of any delay in asserting such Unasserted Claims due to the
restrictions imposed by this Section 6 and (iv) none of the Parties
nor any of their affiliates shall claim or assert in any litigation proceeding
or other action between the Sprint Parties and the iPCS Parties or any of their
respective affiliates that the statute of limitation with respect to any
Unasserted Claims has expired (except to the extent such statute of limitation
had expired prior to the Signing Date) as a result of any delay in asserting
such Unasserted Claims due to the restrictions imposed by this Section 6
or that any of the Parties or any of their respective affiliates has waived the
right to pursue any Unasserted Claims as a result of any delay in asserting
such Unasserted Claims due to the restrictions imposed by this Section 6.


 


7.                                      Control Covenant. 
From and after the time, if any, that Buyer Designees (as defined in the
Merger Agreement) constitute a majority of the Board of Directors of iPCS, Inc.
and prior to the Effectiveness Time, any amendment or modification of this
Agreement, any termination of this Agreement by the iPCS Parties, any extension
of time for performance of any of the obligations of the Sprint Parties, any
waiver of any of the iPCS Parties’ rights hereunder and any other action of the
iPCS Parties which adversely affects the interests of the iPCS Parties in the
Litigation may be effected only if (in addition to the approval of the Board of
Directors of iPCS, Inc. as a whole) there are in office one or more
Continuing Directors (as defined in the Merger Agreement) and such action is
approved by a majority of the Continuing Directors then in office.


 


8.                                      Contract. 
The Parties understand that the terms in this Agreement are binding
contractual commitments and not mere recitals, and that the Parties are not
relying upon any statement or representation made by any Party released, any
such Party’s agents or attorneys, or any other person, concerning the nature,
extent or duration of any injuries or damages, or 


 

















 


concerning any
other thing or matter, but are relying solely and exclusively upon their own
knowledge, belief and judgment.


 


9.                                      Additional Facts. 
The Parties are aware that they may after the Signing Date discover
claims or facts in addition to or different from those they now know or believe
to be true with respect to Released Claims. 
Nevertheless, it is the intention of the Parties as of the Effectiveness
Time to fully, finally and forever settle and release all Released Claims,
including, without limitation, existing claims for damages and losses that are
presently unknown or unanticipated.  In
furtherance of this intention, upon the Effectiveness Time, the releases given
in this Agreement are and will remain in effect as full and complete mutual
releases of Released Claims, notwithstanding the discovery or existence of any
additional or different facts relative to them. 
Each Party assumes the risk of any mistake in executing this Agreement
and furnishing the releases set forth in this Agreement.  Without limiting the generality of the
preceding sentences in this Section 9, each Party waives and relinquishes,
to the extent permitted by law, any right or benefit that such Party has or
might have under any provision of statutory or non-statutory law that might
provide that a release does not extend to claims that a person does not know or
suspect to exist at the time of execution of the release that, if known, would
or might have materially affected the decision to give the release.


 


10.                               Waivers.  No waiver by a Party of any breach of or default under
this Agreement will be deemed to be a waiver of any other breach or default of
any kind or nature of this Agreement.  No
acceptance of payment or performance by a Party after any such breach or
default will be deemed to be a waiver of any breach or default of this
Agreement, whether or not such Party knows of such breach or default at the
time it accepts such payment or performance. 
No failure or delay on the part of a Party to exercise any right it
might have will prevent the exercise of that right by that Party at any time
the other Party continues to be in default, and no such failure or delay will
operate as a waiver of any default.


 


11.                               Other Provisions.


 


(a)                                 Governing Law. 
All issues and questions concerning the construction, validity,
enforcement and interpretation of this Agreement will be governed by and
construed under Delaware law, without giving effect to any choice of law or
conflict of law rules or provisions (whether of Delaware or any other
jurisdiction) that would cause the application of the laws of any jurisdiction
other than Delaware.


 


(b)                                 Jurisdiction. 
Each Party
irrevocably and unconditionally submits to the exclusive jurisdiction of the
Circuit Court of Cook County, Illinois, Chancery Division and any appellate
court from such court, in any suit, action or proceeding with respect to the
enforcement or interpretation of this Agreement or any right, duty or
obligation arising under this Agreement. 
Each Party further agrees that any suit, action or proceeding with
respect to the enforcement or interpretation of this Agreement or any right,
duty or obligation arising under this Agreement would be a case that is related
to the Circuit Court Sprint/Nextel Merger Litigation, the Circuit Court
Sprint/Clearwire Transaction Litigation, and the Sprint/Virgin Transaction
Litigation, and as such should be assigned (under General Order 22 of the General
Orders of the Circuit Court or any superseding order) to the same judge
presiding over those cases.


 

















 


(c)                                  Entire Agreement; Binding
Effect.  This Agreement constitutes the entire
agreement between the Parties with respect to the subject matter it covers and
supersedes all prior agreements, negotiations, representations and discussions
between the Parties with respect to the subject matter it covers.  This Agreement will be binding on and inure
to the benefit of the Parties and their respective successors and assigns.


 


(d)                                 Construction. 
The Parties participated in the negotiation and drafting of this
Agreement.  If any ambiguity or question
of intent or interpretation arises, the Parties intend that (i) this
Agreement be construed as if they had drafted it together, and (ii) no
presumption or burden of proof arises favoring or disfavoring any Party by
virtue of its role in drafting any provision of this Agreement.  All pronouns and any variations of pronouns
used in this Agreement refer to the masculine, feminine or neuter, singular or
plural as the identity of the person or persons require.


 


(e)                                  Severability. 
If any
term or provision of this Agreement is illegal, invalid or unenforceable for
any reason whatsoever, that term or provision will be enforced to the maximum
extent permissible so as to effect the intent of the Parties, and such
illegality, invalidity or unenforceability will not affect the validity,
legality or enforceability of the remainder of this Agreement.


 


(f)                                    Amendment. 
Any amendment to this Agreement must be in a written document signed by
the Parties and must state the intent of the Parties to amend this Agreement.


 


(g)                                 No Admission of Liability. 
It is expressly understood and agreed that this Agreement is a
compromise of disputed claims and that execution of, making of payments under,
and performing of obligations under this Agreement are not to be construed as
an admission of liability on the part of any Party.


 


(h)                                 Counterparts. 
This Agreement may be signed in counterpart or duplicate copy and by
facsimile signature, and any signed counterpart, duplicate or facsimile copy is
the equivalent to a signed original for all purposes.


 


(i)                                    For Settlement Purposes. 
If the Effectiveness Time does not occur, the Parties agree that
Delaware Uniform Rule of Evidence 408 will apply to this Agreement.


 


(j)                                    Waiver of Jury Trial.  EACH PARTY WAIVES, TO THE FULLEST EXTENT PERMITTED BY
APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY
ACTION, SUIT OR PROCEEDING ARISING OUT OF THIS AGREEMENT, AND WHETHER MADE BY
CLAIM, COUNTER CLAIM, THIRD PARTY CLAIM OR OTHERWISE.


 


(k)                                 Confidentiality.  The Parties agree that neither of them will disclose
the contents of this Agreement, the details or terms of this settlement, or the
fact of this settlement or any matters pertaining to this settlement unless
such disclosure is (i) lawfully required by any governmental agency or the
rules of any stock exchange on which the securities of a Party are


 

















 


traded; (ii) otherwise
required to be disclosed by law; or (iii) necessary in any legal
proceeding in order to enforce any provisions of this Agreement.  The Parties agree that they will notify each
other in writing within five (5) calendar days of the receipt of any
subpoena, court order, or administrative order requiring disclosure of
information subject to this non-disclosure provision.


 


(l)                                    Due
Authorization; Enforceability.  Each Party
hereby represents and warrants that this Agreement has been duly authorized,
executed and delivered by such Party and, assuming the due authorization,
execution and delivery by the other Parties, constitutes a valid and binding
obligation of such Party, enforceable against such Party in accordance with its
terms.


 


(m)                              Assignment,
Predecessors, Successors, and Assigns.  This Agreement
shall be binding upon and shall inure to the benefit of the Parties and their
legal representatives, predecessors, successors, and assigns.


 


(n)                                 Assignment. 
The Parties hereby warrant and represent that they have not assigned or
in any way transferred or conveyed all or any portion of the claims covered by
this Agreement, and to their knowledge, no other person or entity has a right
to any claim that purports to be settled by this Agreement.  The Parties acknowledge and agree that this warranty
and representation is an essential and material term of this Agreement, without
which they would not have entered into it. 
The Parties each agree to defend and to hold each other harmless against
the claims of any other person or entity asserting a claim or right that
purports to be settled by this Agreement.


 


(o)                                 Notices. 
Any notices, requests, claims, demands and other communications
hereunder shall be given in accordance with Section 8.12 of the Merger
Agreement, with communications to the Sprint Parties being addressed to “Parent
or Buyer” and communications to the iPCS Parties being addressed to “the
Company.”


 


[Remainder of page intentionally left blank.]


 
















 


EACH PARTY HAS COMPLETELY READ THE TERMS OF
THIS AGREEMENT, FULLY UNDERSTANDS THEM AND VOLUNTARILY ACCEPTS THEM FOR THE
PURPOSE OF MAKING FULL AND FINAL COMPROMISE, ADJUSTMENT AND SETTLEMENT OF ALL
CLAIMS, DISPUTED OR OTHERWISE, IN ACCORDANCE WITH THE TERMS OF THIS AGREEMENT.


 


	
   

  	
  SPRINT NEXTEL
  CORPORATION

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Keith O. Cowan

  
	
   

  	
   

  	
  Name:

  	
  Keith O. Cowan

  
	
   

  	
   

  	
  Title:

  	
  President, Strategies
  and Corporate Initiatives

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  WIRELESSCO L.P.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ John W. Chapman

  
	
   

  	
   

  	
  Name: John W. Chapman

  
	
   

  	
   

  	
  Title:  Vice President and Assistant Secretary

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  SPRINT SPECTRUM L.P.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ John W. Chapman

  
	
   

  	
   

  	
  Name: John W. Chapman

  
	
   

  	
   

  	
  Title:  Vice President and Assistant Secretary

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  SPRINTCOM, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ John W. Chapman

  
	
   

  	
   

  	
  Name: John W. Chapman

  
	
   

  	
   

  	
  Title:  Vice President and Assistant Secretary

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  SPRINT COMMUNICATIONS
  COMPANY, L.P.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ John W. Chapman

  
	
   

  	
   

  	
  Name: John W. Chapman

  
	
   

  	
   

  	
  Title: Vice President
  and Assistant Secretary

  



 


[signatures continue on the following page]


 


 


[Signature page to
Settlement Agreement]


 

















 


	
   

  	
  NEXTEL COMMUNICATIONS, INC.

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ John W. Chapman

  
	
   

  	
   

  	
  Name: John W. Chapman

  
	
   

  	
   

  	
  Title:  Vice President and Assistant Secretary

  
	
   

  	
   

  	
   

  
	
   

  	
  PHILLIECO L.P.

  
	
   

  	
   

  
	
   

  	
  By: 

  	
  /s/ John W. Chapman

  
	
   

  	
   

  	
  Name: John W. Chapman

  
	
   

  	
   

  	
  Title:  Vice President and Assistant Secretary

  
	
   

  	
   

  	
   

  
	
   

  	
  APC PCS LLC

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ John W. Chapman

  
	
   

  	
   

  	
  Name: John W. Chapman

  
	
   

  	
   

  	
  Title:  Vice President and Assistant Secretary

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  [signatures
  continue on the following page]

  



 


 


[Signature page to
Settlement Agreement]


 

















 


	
   

  	
  IPCS, INC.

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Timothy M. Yager

  
	
   

  	
   

  	
  Name: Timothy M. Yager

  
	
   

  	
   

  	
  Title:  President and Chief Executive Officer

  
	
   

  	
   

  	
   

  
	
   

  	
  IPCS WIRELESS, INC.

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Timothy M. Yager

  
	
   

  	
   

  	
  Name: Timothy M. Yager

  
	
   

  	
   

  	
  Title:  Authorized Signatory

  
	
   

  	
   

  	
   

  
	
   

  	
  BRIGHT PERSONAL COMMUNICATIONS SERVICES, LLC

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Timothy M. Yager

  
	
   

  	
   

  	
  Name: Timothy M. Yager

  
	
   

  	
   

  	
  Title: Authorized
  Signatory

  
	
   

  	
   

  	
   

  
	
   

  	
  HORIZON PERSONAL COMMUNICATIONS, INC.

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Timothy M. Yager

  
	
   

  	
   

  	
  Name: Timothy M. Yager

  
	
   

  	
   

  	
  Title: Authorized
  Signatory

  



 


 


[Signature page to
Settlement Agreement]


 

















 


EXHIBIT A


 


Merger Agreement


 


[Agreement and Plan of Merger, dated as of October 18, 2009, among
Sprint Nextel Corporation, Ireland Acquisition Corporation and iPCS, Inc.
(Incorporated by reference to Exhibit 2.1 to the Current Report on Form 8-K
filed by iPCS, Inc. on October 19, 2009)]


 
















 


EXHIBIT B


 


Sprint/Nextel Motion


 


DRAFT [NEXTEL]


 


FIRM
I.D. 43948


 


IN THE CIRCUIT COURT OF COOK
COUNTY, ILLINOIS

COUNTY DEPARTMENT, CHANCERY DIVISION


 


	
  iPCS Wireless, Inc., a Delaware corporation,

   

  Plaintiff,

  v.

   

  Sprint Corporation, a Kansas corporation, 

  WirelessCo L.P., a Delaware limited 

  partnership, Sprint Spectrum L.P., a Delaware

  limited partnership, SprintCom, Inc., a Kansas

  corporation, and Sprint Communications 

  Company, L.P., a Delaware limited partnership,

   

  Defendants.

  	
  )

  )

  )

  )

  )

  )

  )

  )

  )

  )

  )

  	
   

   

   

   

   

  Case No. 05 CH 11792

   

  Judge Kathleen M. Pantle

   

  



 


AGREED
MOTION TO STAY


 


Plaintiffs iPCS Wireless, Inc.,
Bright Personal Communications Services, LLC, and Horizon Personal
Communications, Inc. (“Affiliates”) together with Sprint Nextel
Corporation (f/k/a Sprint Corporation), WirelessCo L.P., Sprint Spectrum L.P.,
SprintCom, Inc., and Sprint Communications Company, L.P., (“Defendants”,
and collectively with Plaintiffs, the “Parties”), move for the entry of an
Agreed Order, a copy of which is attached, staying the above captioned
matter.  In support of this Motion, the Parties state as follows:


 


1.                                       The Parties have entered into a series of
agreements pursuant to which, upon closing: 
(1) Sprint Nextel Corporation will acquire by merger the Affiliates’
parent company, iPCS, Inc.; and (2) this litigation will be
dismissed.


 


2.                                       The Agreement and Plan of Merger dated October     ,
2009 (“the Merger Agreement”) is expected to close in the fourth quarter of
2009 or the first quarter of 2010.  It is
possible, but not likely or expected, that Sprint or iPCS, Inc. would
terminate the Merger Agreement and that the closing would not occur.


 


1

















 


3.                                       As part of the transaction, the Parties
have also entered into a Settlement Agreement dated October     ,
2009 (“the Settlement Agreement”).  The
Settlement Agreement is intended, inter alia, to
stay this case and preserve the Parties’ rights pending the closing of the
transaction, and to dismiss this case upon the closing of the transaction.


 


4.                                       To this end, the Parties jointly move
that the Court enter the attached Agreed Order staying this litigation upon the
terms set forth in the Agreed Order.


 


	
  Dated:
  October     , 2009

  	
  Respectfully Submitted,

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  iPCS
  Wireless, Inc., Horizon Personal Communications, Inc., and Bright Personal
  Communications Services, LLC

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  One of their
  attorneys

  



 


John M. Touhy


Michael K. Forde


James E. Barz


Ellen M. Carey


Ethan A. Hastert


Diana Andsager


MAYER BROWN LLP


71 South Wacker Drive


Chicago, IL 60606-3441


(312) 782-0600


Firm I.D. No. 43948


 


Attorneys for Plaintiffs iPCS
Wireless, Inc.,


Horizon Personal Communications
Services, Inc., and


Bright Personal Communications
Services, LLC


 


2

















 


EXHIBIT C


 


Sprint/Nextel Stay


 


DRAFT [NEXTEL]


 


FIRM
I.D. 43948


 


IN THE CIRCUIT COURT OF COOK
COUNTY, ILLINOIS

COUNTY DEPARTMENT, CHANCERY DIVISION


 


	
  iPCS Wireless, Inc., a Delaware corporation,

   

  Plaintiff,

  v.

   

  Sprint Corporation, a Kansas corporation, 

  WirelessCo L.P., a Delaware limited 

  partnership, Sprint Spectrum L.P., a Delaware 

  limited partnership, SprintCom, Inc., a Kansas 

  corporation, and Sprint Communications 

  Company, L.P., a Delaware limited partnership,

   

  Defendants.

  	
  )

  )

  )

  )

  )

  )

  )

  )

  )

  )

  )

  )

  	
   

   

   

   

   

  Case No. 05 CH 11792

   

  Judge Kathleen M. Pantle

   

  



 


AGREED ORDER


 


This
cause coming to be heard on the parties’ Agreed Motion to Stay, the Court being
fully advised in the premises, IT IS HEREBY ORDERED THAT:


 


(1)                                The above
captioned litigation is stayed, including but not limited to, compliance by
Sprint with the Final Order and Judgment entered by this Court on January 30,
2009, and such stay shall remain in effect until further order of the Court;


 


(2)                                During the
period the stay in this matter is effective, Sprint shall continue to comply
with all terms and conditions of the July 28, 2005 Sprint/iPCS Forbearance
Agreement, attached as Exhibit 1 to the Final Order and Judgment entered
on January 30, 2009;


 


(3)                                This stay shall
be automatically vacated if the Agreement and Plan of Merger dated October     ,
2009 among Sprint Nextel Corporation, iPCS Acquisition Corporation, and iPCS, Inc.
(“the Merger Agreement”) is terminated for any reason or as otherwise provided
in the Settlement Agreement dated October     , 2009 among
the parties (“the Settlement Agreement”); and


 


(4)                                If the Merger
Agreement between the parties is terminated for any reason, Sprint must comply
with the Final Order and Judgment entered on January 30, 2009 by 120 days
after the date on which the stay in this matter is vacated.


 

















 


	
  Atty
  No.: 43948

  	
   

  	
  ENTERED:

  
	
  Name:
  Mayer Brown LLP/John M. Touhy

  	
   

  	
   

  
	
  Atty.
  for: Plaintiffs

  	
   

  	
   

  
	
  Address:
  71 S. Wacker Drive

  	
   

  	
  Dated:

  	
   

  
	
  City/State/Zip:
  Chicago, Illinois 60606

  	
   

  	
   

  
	
  Telephone:
  312-782-0600

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Judge

  	
  Judge’s No.

  
					



 


2
















 


EXHIBIT D


 


2-1401 Motion and Stay


 


No. 09-0424


 


IN THE ILLINOIS APPELLATE COURT

FOR THE FIRST DISTRICT


 


	
  iPCS
  Wireless, Inc., a Delaware Corporation,

  	
  )

  	
   

  
	
   

  	
  )

  	
   

  
	
  Plaintiff-Appellee,

  	
  )

  	
   

  
	
   

  	
  )

  	
  On Appeal from the
  Circuit

  
	
  v.

  	
  )

  	
  Court of Cook County,

  
	
   

  	
  )

  	
  County Department,

  
	
  Sprint Corporation, a
  Kansas corporation,

  	
  )

  	
  Law Division

  
	
  WirelessCo L.P., a
  Delaware limited

  	
  )

  	
   

  
	
  partnership, Sprint
  Spectrum L.P., a Delaware

  	
  )

  	
   

  
	
  limited partnership,
  SprintCom, Inc., a Kansas

  	
  )

  	
  Case No. 05 CH
  11792

  
	
  corporation, and Sprint
  Communications

  	
  )

  	
   

  
	
  Company L.P., a
  Delaware limited partnership,

  	
  )

  	
  Honorable Thomas P.
  Quinn,

  
	
   

  	
  )

  	
  Judge Presiding

  
	
  Defendants-Appellants.

  	
  )

  	
   

  



 


[PROPOSED] AGREED ORDER


 


(1)                                  The Parties’
Agreed Motion to Stay is allowed/denied;


 


(2)                                  The above
captioned appeal is stayed and such stay shall remain in effect until further
order of the Court, except as further set forth below; and


 


(3)                                  This stay shall
be automatically vacated if the Agreement and Plan of Merger dated October     ,
2009 among Sprint Nextel Corporation, iPCS Acquisition Corporation, and iPCS, Inc.
(“the Merger Agreement”) is terminated for any reason or as otherwise provided
in the Settlement Agreement dated October     , 2009
among the parties (“the Settlement Agreement”).


 


	
   

  	
   

  
	
   

  	
  Justice

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Justice

  



 

















 


	
   

  	
   

  
	
   

  	
  Justice

  



 


Prepared by:


Demetrios G. Metropoulos


Mayer, Brown LLP


71 South Wacker Drive


Chicago, IL  60606


(312) 782-0600


 


2

















 


No. 09-0424


 


IN THE ILLINOIS APPELLATE COURT

FOR THE FIRST DISTRICT


 


	
  iPCS
  Wireless, Inc., a Delaware Corporation,

  	
  )

  	
   

  
	
   

  	
  )

  	
   

  
	
  Plaintiff-Appellee,

  	
  )

  	
   

  
	
   

  	
  )

  	
  On Appeal from the
  Circuit

  
	
  v.

  	
  )

  	
  Court of Cook County,

  
	
   

  	
  )

  	
  County Department,

  
	
  Sprint Corporation, a
  Kansas corporation,

  	
  )

  	
  Law Division

  
	
  WirelessCo L.P., a
  Delaware limited

  	
  )

  	
   

  
	
  partnership, Sprint
  Spectrum L.P., a Delaware

  	
  )

  	
   

  
	
  limited partnership,
  SprintCom, Inc., a Kansas

  	
  )

  	
  Case No. 05 CH
  11792

  
	
  Corporation, and Sprint
  Communications

  	
  )

  	
   

  
	
  Company L.P., a
  Delaware limited partnership,

  	
  )

  	
  Honorable Thomas P.
  Quinn,

  
	
   

  	
  )

  	
  Judge Presiding

  
	
  Defendants-Appellants.

  	
  )

  	
   

  



 


AGREED MOTION TO STAY


 


Plaintiff-Appellee iPCS
Wireless, Inc. (“iPCS”) together with Sprint Nextel Corporation (f/k/a/
Sprint Corporation), WirelessCo L.P., Sprint Spectrum L.P., SprintCom, Inc.,
and Sprint Communications Company, L.P., (“Defendant-Appellants”, and
collectively with Plaintiff, the “Parties”), move for the entry of an Agreed
Order, a copy of which is attached, staying the above captioned appeal. 
In support of this Motion, the Parties state as follows:


 


1.                                       In this appeal, the Defendant-Appellants
appeal from an order denying their Section 2-1401 petition to vacate a
judgment that was entered by the Circuit Court and affirmed by this Court on
direct appeal.


 

















 


2.                                       The Parties have entered into a series of
agreements pursuant to which, upon closing: 
(1) Sprint Nextel Corporation will acquire by merger iPCS’s parent
company, iPCS, Inc.; and (2) this litigation will be dismissed.


 


3.                                       The Agreement and Plan of Merger dated October     ,
2009 (“Merger Agreement”) is expected to close in the fourth quarter of 2009 or
the first quarter of 2010.  It is
possible, but not likely or expected, that Sprint or iPCS, Inc. would
terminate the Merger Agreement and that the closing would not occur.


 


4.                                       As part of the transaction, the Parties
have also entered into a Settlement Agreement dated October     ,
2009 (“the Settlement Agreement”).  The
Settlement Agreement is intended, inter alia, to
stay this appeal and preserve the Parties’ rights pending the closing of the
transaction, and to dismiss this appeal upon the closing of the transaction.


 


5.                                       To this end, the Parties jointly move
that the Court enter the attached Agreed Order staying this appeal upon the
terms set forth in the Agreed Order.


 


WHEREFORE, Plaintiff-Appellee and Defendant-Appellants
respectfully request that the Court grant the Parties’ Agreed Motion to Stay
and enter the attached Agreed Order staying this appeal upon the terms set
forth in the Agreed Order.


 


2

















 


	
  Gino L. DiVito 

  TABET DIVITO &
  ROTHSTEIN LLC 

  209 South LaSalle
  Street, 7th Floor 

  Chicago, IL  60604 

  (312) 762-9460

  	
  John E. Muench 

  Demetrios G.
  Metropoulos 

  MAYER BROWN LLP 

  71 South Wacker Drive 

  Chicago, IL  60606-3441 

  (312) 782-0600

  
	
   

  	
   

  
	
   

  	
  Attorneys for
  Plaintiff-Appellee

  



 


3

















 


CERTIFICATE
OF SERVICE


 


I, Demetrios G. Metropoulos, an attorney, hereby certify that I caused
the Agreed Motion to Stay to be filed on October     ,
2009 with:


 


Steven M. Ravid


Clerk of the Appellate
Court


First District


160 N. LaSalle Street


Chicago, IL 60601


 


I also caused copies of the Agreed Motion to Stay to
be deposited in the mail, postage prepaid, at 71 South Wacker Drive, Chicago,
Illinois, 60606, before 5:00 p.m. on October 2, 2009, addressed to
each person listed on the attached service list.


 


	
   

  	
   

  
	
   

  	
  Demetrios G. Metropoulos

  



 

















 


SERVICE
LIST – No. 06-2801


 


Barry Levenstam


Jenner & Block
LLP


330 North Wabash Avenue


Chicago, Illinois  60611


 


Richard M. Waris


James J. Sipchen


Scott L. Howie


Pretzel &
Stouffer Chartered


One South Wacker Drive


Chicago, Illinois  60606


 


Daniel J. King


 


King & Spalding
LLP


1180 Peachtree Street,
N.E.


Atlanta, Georgia  30309


 

















 


EXHIBIT E


 


Sprint/Clearwire Motion


 


FIRM I.D. 43948


 


IN THE
CIRCUIT COURT OF COOK COUNTY, ILLINOIS

COUNTY DEPARTMENT, CHANCERY DIVISION


 


	
  iPCS Wireless, Inc., a
  Delaware corporation,

  	
  )

  	
   

  
	
  Horizon Personal
  Communications, Inc., an 

  	
  )

  	
   

  
	
  Ohio corporation, and
  Bright Personal 

  	
  )

  	
   

  
	
  Communications
  Services, LLC, an Ohio 

  	
  )

  	
   

  
	
  limited liability
  company,

  	
  )

  	
   

  
	
   

  	
  )

  	
   

  
	
  Plaintiffs,

  	
  )

  	
   

  
	
   

  	
  )

  	
   

  
	
  v.

  	
  )

  	
  Case No. 08 CH 17214

  
	
   

  	
  )

  	
   

  
	
  Sprint
  Nextel Corporation, a Kansas 

  	
  )

  	
  Judge Kathleen M.
  Pantle

  
	
  corporation,
  WirelessCo L.P., a Delaware 

  	
  )

  	
   

  
	
  limited
  partnership, Sprint Spectrum L.P., a 

  	
  )

  	
   

  
	
  Delaware
  limited partnership, SprintCom, Inc., 

  	
  )

  	
   

  
	
  a
  Kansas corporation, and Sprint 

  	
  )

  	
   

  
	
  Communications
  Company, L.P., a Delaware 

  	
  )

  	
   

  
	
  limited
  partnership,

  	
  )

  	
   

  
	
   

  	
  )

  	
   

  
	
  Defendants.

  	
   

  	
   

  



 


AGREED MOTION TO STAY


 


Plaintiffs iPCS Wireless, Inc.,
Bright Personal Communications Services, LLC, and Horizon Personal
Communications, Inc. (“Affiliates”) together with Sprint Nextel
Corporation, WirelessCo L.P., Sprint Spectrum L.P., SprintCom, Inc., and
Sprint Communications Company, L.P., (“Defendants”, and collectively with
Plaintiffs, the “Parties”), move for the entry of an Agreed Order, a copy of
which is attached, staying the above captioned matter.  In support of this
Motion, the Parties state as follows:


 


1.                                       The Parties have entered into a series of
agreements pursuant to which, upon closing: 
(1) Sprint Nextel Corporation will acquire by merger the Affiliates’
parent company, iPCS, Inc.; and (2) this litigation will be
dismissed.


 


2.                                       The Agreement and Plan of Merger dated October     ,
2009 (“the Merger Agreement”) is expected to close in the fourth quarter of
2009 or the first quarter of 2010.  It is



 


1

















 


possible, but not likely
or expected, that Sprint or iPCS, Inc. would terminate the Merger
Agreement and that the closing would not occur.


 


3.                                       As part of the transaction, the Parties
have also entered into a Settlement Agreement dated October     ,
2009 (“the Settlement Agreement”).  The
Settlement Agreement is intended, inter alia, to
stay this case and preserve the Parties’ rights pending the closing of the
transaction, and to dismiss this case upon the closing of the transaction.


 


4.                                       To this end, the Parties jointly move
that the Court enter the attached Agreed Order staying this litigation upon the
terms set forth in the Agreed Order.


 


	
  Dated:
  October     , 2009

  	
   

  	
  Respectfully Submitted,

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  iPCS
  Wireless, Inc., Horizon Personal Communications, Inc., and Bright
  Personal Communications Services, LLC 

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  	
  One of their
  attorneys

  



 


John M. Touhy


Michael K. Forde


James E. Barz


Ellen M. Carey


Ethan A. Hastert


Diana Andsager


MAYER BROWN LLP


71 South Wacker Drive


Chicago, IL 60606-3441


(312) 782-0600


Firm I.D. No. 43948


 


Attorneys for Plaintiffs iPCS
Wireless, Inc.,


Horizon Personal Communications
Services, Inc., and


Bright Personal Communications
Services, LLC


 


2
















 


EXHIBIT F


 


Sprint/Clearwire Stay


 


FIRM
I.D. 43948


 


IN THE CIRCUIT COURT OF COOK
COUNTY, ILLINOIS

COUNTY DEPARTMENT, CHANCERY DIVISION


 


	
  iPCS Wireless, Inc., a Delaware corporation,

  Horizon Personal Communications, Inc., an

  Ohio corporation, and Bright Personal

  Communications Services, LLC, an Ohio

  limited liability company,

   

  Plaintiffs,

   

  v.

   

  Sprint Nextel Corporation, a Kansas

  corporation, WirelessCo L.P., a Delaware

  limited partnership, Sprint Spectrum L.P., a

  Delaware limited partnership, SprintCom, Inc.,

  a Kansas corporation, and Sprint

  Communications Company, L.P., a Delaware

  limited partnership,

   

  Defendants.

  	
   

  	
  )

  )

  )

  )

  )

  )

  )

  )

  )

  )

  )

  )

  )

  )

  )

  )

  )

  )

  )

  	
   

  	
   

   

   

   

   

   

  Case No. 08 CH 17214

   

  Judge Kathleen M. Pantle

   

  



 


AGREED ORDER


 


This
cause coming to be heard on the parties’ Agreed Motion to Stay, the Court being
fully advised in the premises, IT IS HEREBY ORDERED THAT:


 


(1)           The above captioned
litigation is stayed, including but not limited to, discovery and all pending
motions, and such stay shall remain in effect until further order of the Court;


 


(2)           The stay in paragraph (1) shall
not apply to the Agreed Order and Stipulation entered by this Court on November 17,
2008 and Sprint and Clearwire shall continue to comply with all terms and
conditions of that Order;


 


(3)           The stay shall be
automatically vacated if any of the following occurs:


 


(a)           the  Agreement and Plan of Merger dated October     ,
2009 among Sprint Nextel Corporation, iPCS Acquisition Corporation, and iPCS, Inc.
(“the Merger Agreement”) is terminated for any reason;


 


(b)           the Parties to the November 17,
2008 Agreed Order and Stipulation fail to comply with its terms;


 


(c)           Clearwire gives Plaintiffs
written notice that it intends to launch its network or sell or promote its
products and services in any part of Plaintiffs’ service areas as required by
the November 17, 2008 Agreed Order and 


 

















 


Stipulation, or it otherwise
appears that, within 60 days, Clearwire intends to launch its network or sell
or promote its products and services in any part of Plaintiffs’ Service Areas;
or


 


(d)           as otherwise provided in the
Settlement Agreement between the parties dated October     ,
2009 (“the Settlement Agreement”); and


 


(4)           If the stay is vacated, the
parties shall have the right to pursue all available remedies, including but
not limited to, any remedy proposed or contained in the Settlement Agreement.


 


 


	
  Atty No.: 43948

  	
  ENTERED:

  
	
  Name: Mayer Brown
  LLP/John M. Touhy

  	
   

  
	
  Atty. for: Plaintiffs

  	
   

  
	
  Address: 71 S. Wacker
  Drive

  	
  Dated:

  	
   

  
	
  City/State/Zip:
  Chicago, Illinois 60606

  	
   

  
	
  Telephone: 312-782-0600

  	
   

  
	
   

  	
   

  
	
   

  	
  Judge

  	
  Judge’s No.

  
				



 

















 


EXHIBIT G


 


Sprint/Virgin Motion


 


DRAFT
[VIRGIN MOBILE]


 


FIRM I.D.
43948


 


IN THE CIRCUIT COURT OF COOK
COUNTY, ILLINOIS

COUNTY DEPARTMENT, CHANCERY DIVISION


 


	
  iPCS Wireless, Inc.,
  a Delaware corporation,

  Horizon Personal
  Communications, Inc., an

  Ohio corporation, and
  Bright Personal

  Communications
  Services, LLC, an Ohio

  limited liability
  company,

   

  Plaintiffs,

  v.

   

  Sprint Nextel
  Corporation, a Kansas

  corporation, WirelessCo
  L.P., a Delaware

  limited partnership,
  Sprint Spectrum L.P., a

  Delaware limited
  partnership, SprintCom, Inc.,

  a Kansas corporation,
  and Sprint

  Communications Company,
  L.P., a Delaware

  limited partnership,

   

  Defendants.

  	
   

  	
  )

  )

  )

  )

  )

  )

  )

  )

  )

  )

  )

  )

  )

  )

  )

  )

  )

  )

  	
   

  	
   

   

   

   

   

   

   

   

  Case No. 09 CH
  32574

  The Honorable Kathleen
  M. Pantle

  



 


AGREED MOTION TO STAY


 


Plaintiffs iPCS Wireless, Inc.,
Bright Personal Communications Services, LLC, and Horizon Personal
Communications, Inc. (“Affiliates”) together with Sprint Nextel
Corporation, WirelessCo L.P., Sprint Spectrum L.P., SprintCom, Inc., and
Sprint Communications Company, L.P., (“Defendants”, and collectively with
Plaintiffs, the “Parties”), move for the entry of an Agreed Order, a copy of
which is attached, staying the above captioned matter.  In support of this
Motion, the Parties state as follows:


 


1.             The Parties have entered into a series of agreements
pursuant to which, upon closing:  (1) Sprint
Nextel Corporation will acquire by merger the Affiliates’ parent company, iPCS, Inc.;
and (2) this litigation will be dismissed.


 


2.             The Agreement and Plan of Merger dated October     ,
2009 (“the Merger Agreement”) is expected to close in the fourth quarter of
2009 or the first quarter of 2010.  It is


 


1

















 


possible, but not likely
or expected, that Sprint or iPCS, Inc. would terminate the Merger
Agreement and that the closing would not occur.


 


3.             As part of the transaction, the Parties have also
entered into a Settlement Agreement dated October     ,
2009 (“the Settlement Agreement”).  The
Settlement Agreement is intended, inter alia, to
stay this case and preserve the Parties’ rights pending the closing of the
transaction, and to dismiss this case upon the closing of the transaction.


 


4.             To this end, the Parties jointly move that the Court
enter the attached Agreed Order staying this litigation upon the terms set
forth in the Agreed Order.


 


	
  Dated:
  October     , 2009

  	
   

  	
  Respectfully Submitted,

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  iPCS
  Wireless, Inc., Horizon Personal

  
	
   

  	
   

  	
  Communications, Inc.,
  and Bright

  
	
   

  	
   

  	
  Personal Communications
  Services, LLC

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  	
        One
  of their attorneys

  



 


John M. Touhy


Michael K. Forde


James E. Barz


Ellen M. Carey


Ethan A. Hastert


Diana Andsager


MAYER BROWN LLP


71 South Wacker Drive


Chicago, IL 60606-3441


(312) 782-0600


Firm I.D. No. 43948


 


Attorneys for Plaintiffs iPCS
Wireless, Inc.,


Horizon Personal Communications
Services, Inc., and


Bright Personal Communications
Services, LLC


 


2

















 


EXHIBIT H


 


Sprint/Virgin Stay


 


DRAFT [VIRGIN MOBILE]


 


FIRM
I.D. 43948


 


IN THE CIRCUIT COURT OF COOK
COUNTY, ILLINOIS


COUNTY DEPARTMENT, CHANCERY
DIVISION


 


	
  iPCS Wireless, Inc., a Delaware corporation,

  Horizon Personal Communications, Inc., an

  Ohio corporation, and Bright Personal

  Communications Services, LLC, an Ohio

  limited liability company,

   

  Plaintiffs,

   

  v.

   

  Sprint Nextel Corporation, a Kansas

  corporation, WirelessCo L.P., a Delaware

  limited partnership, Sprint Spectrum L.P., a

  Delaware limited partnership, SprintCom, Inc.,

  a Kansas corporation, and Sprint

  Communications Company, L.P., a Delaware

  limited partnership,

   

  Defendants.

  	
   

  	
  )

  )

  )

  )

  )

  )

  )

  )

  )

  )

  )

  )

  )

  )

  )

  )

  )

  )

  )

  	
   

  	
   

   

   

   

   

   

   

   

  Case No. 09 CH 32574

   

  The Honorable Kathleen
  M. Pantle

  



 


AGREED
ORDER


 


This
cause coming to be heard on the parties’ Agreed Motion to Stay, the Court being
fully advised in the premises, IT IS HEREBY ORDERED THAT:


 


(1)           The above captioned
litigation is stayed, including but not limited to, discovery, pending motions,
and the hearing on Plaintiffs’ Motion for Preliminary Injunction scheduled for November 2,
2009, and such stay will remain in effect until further order of Court;


 


(2)           The stay shall be
automatically vacated if the Agreement and Plan of Merger dated October     ,
2009 among Sprint Nextel Corporation, iPCS Acquisition Corporation, and iPCS, Inc.
(“the Merger Agreement”) is terminated for any reason or as otherwise provided
in the Settlement Agreement dated October     , 2009
among the parties (“the Settlement Agreement”); and


 


(3)           If the stay is vacated, the
parties shall have the right to pursue all available remedies.


 

















 


	
  Atty No.: 43948

  	
  ENTERED:

  
	
  Name: Mayer Brown
  LLP/John M. Touhy

  	
   

  
	
  Atty. for: Plaintiffs

  	
   

  
	
  Address: 71 S. Wacker
  Drive

  	
  Dated:

  	
   

  
	
  City/State/Zip:
  Chicago, Illinois 60606

  	
   

  
	
  Telephone: 312-782-0600

  	
   

  
	
   

  	
   

  
	
   

  	
  Judge

  	
  Judge’s No.

  
				



 


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