EX-10.55






Exhibit 10.55




 

 






AMENDED AND RESTATED




OPERATING AGREEMENT




OF




[NEWCO, LLC]




Dated as of                     , 2008




 

 





THE LIMITED LIABILITY COMPANY UNITS OF NEWCO, LLC HAVE NOT BEEN REGISTERED UNDER THE U.S.
SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), THE SECURITIES LAWS OF ANY STATE
OR ANY OTHER APPLICABLE SECURITIES LAWS AND ARE BEING ISSUED IN RELIANCE ON EXEMPTIONS FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND THOSE LAWS. THE UNITS MAY BE ACQUIRED FOR
INVESTMENT ONLY AND MAY NOT BE OFFERED FOR SALE, PLEDGED, HYPOTHECATED, SOLD, ASSIGNED OR
TRANSFERRED AT ANY TIME EXCEPT IN COMPLIANCE WITH (I) THE SECURITIES ACT, ANY APPLICABLE STATE
SECURITIES LAWS, AND ANY OTHER APPLICABLE SECURITIES LAWS; AND (II) THE TERMS AND CONDITIONS OF
THIS AMENDED AND RESTATED OPERATING AGREEMENT. THE UNITS MAY NOT BE TRANSFERRED OF RECORD EXCEPT
IN COMPLIANCE WITH THOSE LAWS AND THIS AMENDED AND RESTATED OPERATING AGREEMENT. THEREFORE,
PURCHASERS OF THE UNITS WILL BE REQUIRED TO BEAR THE RISK OF THEIR INVESTMENT FOR AN INDEFINITE
PERIOD OF TIME.





 









 








TABLE OF CONTENTS




	 	 	 	 	 	 	 
	 	 	 	 	Page	 
	 
	 	 	 	 	 	 
	ARTICLE I DEFINITIONS	 	 	3	 
	 
	 	 	 	 	 	 
	ARTICLE II FORMATION, TERM, PURPOSE AND POWERS	 	 	3	 
	 
	 	 	 	 	 	 
	ARTICLE II FORMATION, TERM, PURPOSE AND POWERS	 	 	3	 
	2.1.
	 	Formation	 	 	3	 
	2.2.
	 	Name	 	 	3	 
	2.3.
	 	Term	 	 	3	 
	2.4.
	 	Offices	 	 	3	 
	2.5.
	 	Agent for Service of Process	 	 	3	 
	2.6.
	 	Business Purpose	 	 	4	 
	2.7.
	 	Activities of the Company	 	 	4	 
	2.8.
	 	Powers of the LLC	 	 	4	 
	2.9.
	 	Members; Admission of New Members	 	 	4	 
	2.10.
	 	Withdrawal	 	 	4	 
	 
	 	 	 	 	 	 
	ARTICLE III MANAGEMENT	 	 	5	 
	 
	 	 	 	 	 	 
	ARTICLE III MANAGEMENT	 	 	5	 
	3.1.
	 	Managing Member	 	 	5	 
	3.2.
	 	Compensation	 	 	5	 
	3.3.
	 	Expenses; Reimbursement	 	 	6	 
	3.4.
	 	Officers	 	 	6	 
	3.5.
	 	Authority of Members	 	 	7	 
	3.6.
	 	Action by Written Consent	 	 	7	 
	 
	 	 	 	 	 	 
	ARTICLE IV DISTRIBUTIONS AND LOANS	 	 	7	 
	 
	 	 	 	 	 	 
	ARTICLE IV DISTRIBUTIONS AND LOANS	 	 	7	 
	4.1.
	 	Distributions	 	 	7	 
	4.2.
	 	Liquidation Distributions	 	 	7	 
	4.3.
	 	Limitations on Distributions	 	 	7	 
	4.4.
	 	Distributions for Taxes of the Company; Tax Loan to Sprint	 	 	8	 
	 
	 	 	 	 	 	 
	ARTICLE V CAPITAL CONTRIBUTIONS; CAPITAL ACCOUNTS; TAX ALLOCATIONS; TAX MATTERS	 	 	10	 
	 
	 	 	 	 	 	 
	ARTICLE V CAPITAL CONTRIBUTIONS; CAPITAL ACCOUNTS; TAX ALLOCATIONS; TAX
MATTERS	 	 	10	 
	5.1.
	 	Initial Capital Contributions	 	 	10	 
	5.2.
	 	No Additional Capital Contributions; Additional Funds	 	 	11	 
	5.3.
	 	Capital Accounts	 	 	14	 
	5.4.
	 	Allocations of Profits and Losses	 	 	14	 
	5.5.
	 	Special Allocations	 	 	15	 






i









 






	 	 	 	 	 	 	 
	 	 	 	 	Page	 
	 
	 	 	 	 	 	 
	5.6.
	 	Curative Allocations	 	 	16	 
	5.7.
	 	Other Allocation Rules	 	 	16	 
	5.8.
	 	Code Section 704(c); Tax Allocations	 	 	17	 
	5.9.
	 	Tax Withholding	 	 	18	 
	5.10.
	 	Successors in Interest	 	 	19	 
	5.11.
	 	Other Tax Matters	 	 	19	 
	5.12.
	 	Tax Classification	 	 	22	 
	5.13.
	 	Tax Elections	 	 	22	 
	 
	 	 	 	 	 	 
	ARTICLE VI BOOKS AND RECORDS; REPORTS	 	 	23	 
	 
	 	 	 	 	 	 
	ARTICLE VI BOOKS AND RECORDS; REPORTS	 	 	23	 
	 
	 	 	 	 	 	 
	ARTICLE VII COMPANY UNITS	 	 	23	 
	 
	 	 	 	 	 	 
	ARTICLE VII COMPANY UNITS	 	 	23	 
	7.1.
	 	Units	 	 	23	 
	7.2.
	 	Register	 	 	24	 
	7.3.
	 	Splits, Distributions and Reclassifications	 	 	24	 
	7.4.
	 	Cancellation or Redemption of Equity Securities and Units	 	 	24	 
	7.5.
	 	Incentive Plans	 	 	25	 
	7.6.
	 	Exercisable Rights	 	 	26	 
	7.7.
	 	Issuances of Equity Securities	 	 	27	 
	7.8.
	 	Registered Members	 	 	29	 
	7.9.
	 	Exchange of Units	 	 	29	 
	7.10.
	 	Preemptive Rights	 	 	32	 
	7.11.
	 	Permitted Designee	 	 	35	 
	 
	 	 	 	 	 	 
	ARTICLE VIII TRANSFER RESTRICTIONS	 	 	35	 
	 
	 	 	 	 	 	 
	ARTICLE VIII TRANSFER RESTRICTIONS	 	 	35	 
	8.1.
	 	Member Transfers	 	 	35	 
	8.2.
	 	Permitted Transferees	 	 	38	 
	8.3.
	 	Further Restrictions	 	 	39	 
	8.4.
	 	Rights of Assignees	 	 	40	 
	8.5.
	 	Admissions, Withdrawals and Removals	 	 	41	 
	8.6.
	 	Void Transfers	 	 	41	 
	8.7.
	 	Withdrawal of Certain Members	 	 	41	 
	8.8.
	 	Right of First Offer	 	 	41	 
	8.9.
	 	Tag-Along Rights	 	 	44	 
	8.10.
	 	Transfers to a Restricted Entity	 	 	46	 
	8.11.
	 	Limitations Prior to the Adjustment Date	 	 	47	 
	8.12.
	 	Holding Company Transfers	 	 	48	 
	8.13.
	 	Transfers, Assignments of Interest Subject to Required
    Governmental Notices and/or Consents 	 	 	49	 






ii









 






	 	 	 	 	 	 	 
	 	 	 	 	Page	 
	 
	 	 	 	 	 	 
	ARTICLE IX DISSOLUTION, LIQUIDATION AND TERMINATION	 	 	49	 
	 
	 	 	 	 	 	 
	ARTICLE IX DISSOLUTION, LIQUIDATION AND TERMINATION	 	 	49	 
	9.1.
	 	No Dissolution	 	 	49	 
	9.2.
	 	Events Causing Dissolution	 	 	49	 
	9.3.
	 	Distribution on Dissolution Events	 	 	50	 
	9.4.
	 	Time for Liquidation	 	 	51	 
	9.5.
	 	Termination	 	 	51	 
	9.6.
	 	Claims of the Members	 	 	51	 
	9.7.
	 	Survival of Certain Provisions	 	 	51	 
	 
	 	 	 	 	 	 
	ARTICLE X LIABILITY OF MEMBERS	 	 	51	 
	 
	 	 	 	 	 	 
	ARTICLE X LIABILITY AND INDEMNIFICATION	 	 	51	 
	10.1.
	 	Liability of Members	 	 	51	 
	 
	 	 	 	 	 	 
	ARTICLE XI MISCELLANEOUS	 	 	53	 
	 
	 	 	 	 	 	 
	ARTICLE XI MISCELLANEOUS	 	 	53	 
	11.1.
	 	Parent Guaranty	 	 	53	 
	11.2.
	 	Amendments and Waivers	 	 	53	 
	11.3.
	 	Groups and Thresholds	 	 	54	 
	11.4.
	 	Legend	 	 	54	 
	11.5.
	 	Notices	 	 	55	 
	11.6.
	 	Confidentiality	 	 	58	 
	11.7.
	 	Strategic Investor Representative	 	 	60	 
	11.8.
	 	No Joint and Several Liability of the Members	 	 	61	 
	11.9.
	 	Further Assurances	 	 	61	 
	11.10.
	 	Entire Agreement	 	 	61	 
	11.11.
	 	Delays or Omissions	 	 	61	 
	11.12.
	 	Governing Law; Jurisdiction; Waiver of Jury Trial	 	 	62	 
	11.13.
	 	Severability	 	 	62	 
	11.14.
	 	Enforcement	 	 	62	 
	11.15.
	 	No Recourse	 	 	62	 
	11.16.
	 	No Third Party Beneficiaries	 	 	63	 
	11.17.
	 	Counterparts; Facsimile Signatures	 	 	63	 
	11.18.
	 	Managing Member Authorization	 	 	63	 







iii











 





AMENDED AND RESTATED




OPERATING AGREEMENT




OF




[NEWCO, LLC]




          This AMENDED AND RESTATED OPERATING AGREEMENT (this “Agreement”) of NewCo, LLC, a
Delaware limited liability company (the “LLC”), is made as of the      th day of
          , 2008 (the “Effective Date”), by and among NewCo Corporation, a Delaware corporation
(the “Company”), [SPRINT], a                      (“Sprint”), [INTEL], a                     
(“Intel”), [COMCAST], a                      (“Comcast”), [TIME WARNER CABLE], a
                     (“TWC”) and [BRIGHT HOUSE], a                      (“BHN”; and, together
with Comcast and TWC, the “Strategic Investors”)1, and solely for purposes of
Sections 7.10, 7.11 and 8.8 [EAGLE RIVER], a Washington limited liability company (“Eagle
River”), and supersedes in its entirety the Operating Agreement of NewCo, LLC dated as of the
      day of           , 2008 (the “Original Operating Agreement”).




RECITALS




     A. The parties desire to (i) foster the development of a nationwide wireless broadband network
(the “Wireless Broadband Network”); (ii) expedite the commercial availability of wireless
broadband services over the Wireless Broadband Network; (iii) enable the offering of a greater
depth and breadth of wireless broadband services; and (iv) promote wireless broadband development.



     B. In order to satisfy the foregoing objectives, Sprint, Intel, the Strategic Investors,
Google Inc., a Delaware corporation (“Google”), and Clearwire Corporation, a Delaware
corporation (“Clearwire”), entered into the Transaction Agreement and Plan of Merger dated
as of May 7, 2008 (as amended from time to time, the “Transaction Agreement”), under which:




     (i) Clearwire formed the Company;




     (ii) the Company formed the LLC, which was until the Closing treated as a disregarded
entity for U.S. federal income tax purposes;




     (iii) the LLC, in turn, formed a wholly owned Delaware limited liability company
(“Clearwire Sub LLC”), that is and at all times since its formation has been treated
as a disregarded entity for U.S. federal income tax purposes;




     (iv) the outstanding shares of Class B common stock of Clearwire were converted into
Class A common stock of Clearwire in a transaction intended to qualify as





 




			
	1	 	Note: Parties to be updated (and corresponding changes
to be made, if necessary) if Sprint, Eagle River, Intel or a Strategic Investor
invests through more than one entity or is required to make its investment
directly into the Company.




1









 











a reorganization within the meaning of Code Section 368(a)(1)(E) and governed by Code
Section 1036;




     (v) Clearwire merged with and into Clearwire Sub LLC in a transaction intended to
qualify as a reorganization under Code Section 368(a)(1)(F) (the “Merger”) and, in the
Merger, the shareholders of Clearwire exchanged their Class A common stock of Clearwire for
Class A Common Stock of NewCo;




     (vi) in connection with the Merger, the Company was issued Voting Units and Class A
Common Units in accordance with the terms of the Original Operating Agreement;




     (vii) Sprint Parent caused the formation of Sprint, which in turn formed Sprint Sub
LLC, a wholly owned Delaware limited liability company (“Sprint LLC”), which is and
at all times since its formation has been treated as a disregarded entity for U.S. federal
income tax purposes;




     (viii) Sprint Parent caused one or more Transfer Entities to hold the Sprint WiMAX
Business and caused all of the Transfer Entities to be limited liability companies treated
as disregarded entities for U.S. federal income tax purposes immediately prior to and as of
the Closing (and the Transfer Entities continue to be treated as disregarded entities for
U.S. federal income tax purposes following the Closing);




     (ix) Sprint Parent and its Subsidiaries contributed all of the limited liability
company interests in each of the Transfer Entities to Sprint, which in turn contributed
those interests to Sprint LLC, and Sprint LLC assumed the Sprint Pre-Closing Financing in
accordance with the terms of the Transaction Agreement;




     (x) following the Merger and the contribution of the Transfer Entities to Sprint LLC,
Sprint contributed all of the limited liability company interests of Sprint LLC to the LLC
in exchange for Class B Common Units and purchased an equal number of shares of Class B
Common Stock from the Company for cash;




     (xi) the Company thereafter contributed the cash it received from Sprint as described
in clause (x) above to the LLC in exchange for additional Voting Units;




     (xii) following the Merger, Intel contributed $1,000,000,000 in cash to the LLC in
exchange for Voting Units and Class B Common Units;




     (xiii) Intel thereafter contributed its Voting Units to the Company in exchange for an
equal number of shares of Class B Common Stock;




     (xiv) following the Merger, Comcast, TWC and BHN contributed $1,050,000,000,
$550,000,000 and $100,000,000, respectively, in cash to the LLC in exchange for Voting Units
and Class B Common Units;




     (xv) each Strategic Investor thereafter contributed its Voting Units to the Company in
exchange for an equal number of shares of Class B Common Stock;



2









 






     (xvi) Google contributed $500,000,000 to the Company in exchange for shares of Class A
Common Stock;




     (xvii) the Company thereafter contributed the cash it received from Google to the LLC
in exchange for Voting Units and Class A Common Units; and




     (xviii) as a result of the contributions to the LLC by Sprint, Intel, and the Strategic
Investors described in clauses (x), (xii) and (xiv) above, the LLC was converted into a
partnership for U.S. federal income tax purposes, to which partnership the Company, Sprint,
Intel, and each Strategic Investor were treated as contributing assets.



     C. The parties desire to enter into this Agreement to provide for the management, operation
and governance of the LLC.



ARTICLE I




DEFINITIONS




     Capitalized terms used in this Agreement and not otherwise defined in this Agreement have the
meanings set forth on Annex A.



ARTICLE II




FORMATION, TERM, PURPOSE AND POWERS




     2.1. Formation. The LLC was formed as a limited liability company under the Act and
the Laws of the State of Delaware on the Filing Date. If requested by the Managing Member, the
Members will promptly execute all certificates and other documents consistent with the terms of
this Agreement necessary for the Managing Member to accomplish all filing, recording, publishing
and other acts that may be appropriate to comply with all requirements for the formation and
operation of a limited liability company under the Laws of the State of Delaware.



     2.2. Name. The name of the LLC will be, and the business of the LLC will be conducted
under the name of, [NewCo, LLC] or any other name that the Managing Member reasonably determines.



     2.3. Term. The term of the LLC commenced on the Filing Date, and will continue until
the LLC is dissolved under this Agreement, subject to the provisions set forth in Article IX and
the Law. The existence of the LLC as a separate legal entity will continue until cancellation of
the Certificate in the manner required by the Act.



     2.4. Offices. The LLC may have offices at locations within or without the State of
Delaware as the Managing Member from time to time may select.



     2.5. Agent for Service of Process. The LLC’s registered agent for service of process
in the State of Delaware is as set forth in the Certificate, as the Certificate may be amended by
the Managing Member from time to time.



3









 





     2.6. Business Purpose. The LLC was formed for the object and purpose of, and the
nature of the business to be conducted by the LLC is,




     (a) developing, owning and operating a Wireless Broadband Network utilizing 2.5 GHz
Spectrum, and other spectrum that is used in an ancillary manner to such 2.5 GHz Spectrum,
primarily within the United States,




     (b) developing, owning and operating comparable networks using wireless broadband
technology outside the United States as necessary to maintain the assets and operations of
the LLC outside the United States in existence as of the date hereof,




     (c) marketing, promoting and selling all types and categories of wireless
communications services and associated products (whether now existing or developed and
implemented in the future), including services and products, that are




     (i) designed as products and services to be offered as the products and
services of the Wireless Broadband Network or




     (ii) bundled with or complementary to the products and services of the Wireless
Broadband Network, and




     (d) conducting activities incidental to the activities described in clauses (a)
through (c) above (collectively, the “Wireless Broadband Business”).



     2.7. Activities of the Company. Except as otherwise expressly permitted under this
Agreement, the Company will conduct all of its operational activities for its existing and future
Wireless Broadband Business and hold all of its assets related to the Wireless Broadband Business,
whether now owned or hereafter acquired (other than the proceeds of any distributions from the LLC
permitted under this Agreement and any earnings thereon), through the LLC and the Subsidiaries of
the LLC.



     2.8. Powers of the LLC. Subject to the limitations set forth in this Agreement, the
LLC will possess and may exercise all of the powers and privileges granted to it by the Act, by any
other Law and this Agreement, together with all powers incidental thereto, to the extent those
powers are necessary or convenient to conduct, promote or attain the purpose of the LLC set forth
in Section 2.6.



     2.9. Members; Admission of New Members. The Members of the LLC as of the date hereof
are listed on Exhibit B. The rights and liabilities of the Members are as provided in the
Act, except as is otherwise expressly provided in this Agreement. A Person may be admitted from
time to time as a new Member solely in accordance with Section 8.5. Each new Member will execute
an appropriate supplement to this Agreement by which the new Member agrees to be bound by the terms and
conditions of this Agreement, as it may be amended from time to time.



     2.10. Withdrawal. No Member may withdraw as a Member of the LLC other than following
the Transfer or exchange (as part of an Exchange Transaction) of all Units owned by



4









 







such Member in accordance with Article VIII, except that a new Managing Member or substitute Managing
Member may be admitted to the LLC in accordance with Section 8.5.



ARTICLE III




MANAGEMENT




     3.1. Managing Member.




     (a) The business, property and affairs of the LLC will be managed under the sole,
absolute and exclusive direction of the Managing Member, which may from time to time
delegate authority to officers or to others to act on behalf of the LLC.




     (b) Without limiting the foregoing provisions of this Section 3.1, the Managing Member
will have the general power to manage or cause the management of the LLC, which may be
delegated to officers of the LLC, including, without limitation, the following powers:




     (i) to develop and prepare a business plan each year setting forth the
operating goals and plans for the LLC;




     (ii) to execute and deliver or to authorize the execution and delivery of
contracts, deeds, leases, licenses, instruments of transfer and other documents on
behalf of the LLC;




     (iii) to employ, retain, consult with and dismiss personnel;




     (iv) to establish and enforce limits of authority and internal controls with
respect to all personnel and functions;




     (v) to engage attorneys, consultants, accountants, investment bankers and other
professionals for the LLC;




     (vi) to develop or cause to be developed accounting procedures for the
maintenance of the LLC’s books of account; and




     (vii) to do all such other acts as may be authorized in this Agreement or by
the Members in writing from time to time.




     (c) The Managing Member will be organized under the Laws of the United States or any
political subdivision thereof.



     3.2. Compensation. In consideration for the services provided by the Company to the
LLC in its capacity as Managing Member and the other benefits afforded to the LLC and its Members
by the Company, the LLC will make payments in cash to the Company (without duplication of any
expenses of the LLC paid directly by the LLC or reimbursed to the Company pursuant to Section 3.3),
at such times and in such amounts as are necessary or appropriate to enable the Company to timely
pay all payables, fees and expenses incurred by the Company and



5









 







any of its Subsidiaries (other than
the LLC and its Subsidiaries), except to the extent that the Company reasonably determines in good
faith that such payables, fees, and expenses are attributable to Other Business Activities
(“Excluded Amounts”). For this purpose, the Members acknowledge that it is to the LLC’s
benefit, in terms of stricter internal controls, more thorough financial reporting, lower cost of
capital and other reasons, to maintain the Company as a corporation registered with the Securities
and Exchange Commission and traded on a national securities exchange. Given the foregoing and for
avoidance of doubt, and by way of illustration, payables, fees and expenses of the Company include:
(i) the Company’s overhead, legal, accounting, investment banking and other professional fees and
expenses (provided that investment banking fees incurred by Clearwire and/or Clearwire Sub LLC with
respect to the transactions contemplated by the Transaction Agreement in the amounts referenced in
Section 6.19 of the Transaction Agreement shall be paid directly by Clearwire Sub LLC and shall not
be subject to the provisions of this Section 3.2), including any judgments, settlements, penalties,
fines or other costs and expenses in respect of any claims against, or any litigation or
proceedings involving the Company, the LLC or any of the LLC’s Subsidiaries; (ii) fees and expenses
of the Company related to any securities offering, investment or acquisition (whether or not
successful) authorized by the Company Board and any costs or expenses associated with being a
public company listed on a national securities exchange; (iii) Taxes other than any Covered Tax
Liability; and (iv) fees and expenses payable by the Company in connection with the implementation
and maintenance of any Incentive Plan and the issuance of Class A Common Stock or other capital
stock under such Incentive Plan (whether by the exercise of a stock option, the grant of a
restricted share award or otherwise), in each case, to the extent such amounts are not Excluded
Amounts. For the avoidance of doubt, the LLC shall have no obligation to make any payments
pursuant to this Section 3.2 in respect of Excluded Amounts. Payments made by the LLC to the
Company under this Section 3.2 will be treated as guaranteed payments to a partner under Code
Section 707(c).



     3.3.  Expenses; Reimbursement. The LLC will to the maximum extent possible pay
directly all expenses incurred through its own acts or through acts of the Managing Member on
behalf of the LLC in its capacity as the Managing Member. To the extent the Managing Member pays
any such expenses as agent on behalf of the LLC, the LLC shall promptly reimburse the Managing
Member upon invoicing of the same. The Managing Member is authorized to incur expenses jointly on
behalf of the LLC and for its own account and to pay the LLC’s share of such expenses on the LLC’s
behalf, and shall be entitled to reimbursement of the same as provided in this Section 3.3.
Whenever such joint expenses are incurred, the Managing Member shall notify the vendor of the same,
and the Managing Member shall have no liability for the LLC’s share of the expense other than from
funds provided by the LLC for the payment of those expenses.



     3.4. Officers. Subject to the direction of the Managing Member, the day-to-day
administration of the business of the LLC may be carried out
by employees and agents of the Managing Member who may be designated as officers of the LLC or
any of its Subsidiaries by the Managing Member, with titles including “chief executive officer,”
“president,” “vice president,” “treasurer,” “assistant treasurer,” “secretary,” “assistant
secretary,” “general manager,” “senior managing director,” “managing director,” “general counsel,”
“director” and “chief financial officer,” as and to the extent authorized by the Managing Member.
The officers of the LLC will have the titles and powers and perform the duties determined from time
to time



6









 







by the Managing Member and otherwise as customarily pertain to such offices. Any number of
offices may be held by the same person. All officers will be subject to the supervision and
direction of the Managing Member and may be removed from office by the Managing Member and the
authority, duties or responsibilities of any officer of the LLC may be modified or suspended by the
Managing Member from time to time, in each case in the sole discretion of the Managing Member.



     3.5. Authority of Members. Except as expressly provided in this Agreement, the Units
do not confer any rights on the Members to participate in the conduct, control or management of the
business of the LLC described in this Agreement, which conduct, control and management is vested
exclusively in the Managing Member. Except as required by Law, or as expressly provided in (i)
this Agreement, (ii) the Equityholders’ Agreement, or (iii) another separate written agreement with
the LLC, which has been approved by a majority of the Independent Designees of the Managing Member,
and all of the Members, no Member other than the Managing Member (and acting in that capacity) will
take any part in the management or control of the operation or business of the LLC in its capacity
as a Member, nor will any Member other than the Managing Member (and acting in that capacity) have
any right, authority or power to act for or on behalf of or bind the LLC in his or its capacity as
a Member in any respect.



     3.6. Action by Written Consent. Any action required or permitted to be taken by the
Members under this Agreement will be taken if all Members holding Voting Units entitled to vote on
such action consent thereto in writing.



ARTICLE IV




DISTRIBUTIONS AND LOANS




     4.1. Distributions. Except as otherwise provided in this Article IV, distributions
will be made by the LLC to the Members from time to time and in such amounts as are determined by
the Managing Member in its discretion, pro rata in accordance with the Members’ respective
Percentage Interests at the record date for the distribution.



     4.2. Liquidation Distributions. Notwithstanding Section 4.1, distributions made on
the occurrence of a Dissolution Event will be made as provided in Section 9.3.



     4.3. Limitations on Distributions. Notwithstanding any provision to the contrary
contained in this Agreement, the Managing Member will not cause the LLC to make a distribution to
any Member




     (a) unless a corresponding distribution or dividend has been paid by the Company or
declared by the Company Board, with a record date that is prior to or the same as the
record date of the distribution by the LLC to the Members, with respect to the Class A
Common Stock or other securities of the Company that are entitled to receive dividends or
other distributions in accordance with the Charter or other relevant organizational
documents; provided that the LLC shall be entitled to pay the following distributions
without any requirement that the Company declare a corresponding dividend or other
distribution with respect to any shares or equity securities:



7









 






     (i) any distribution made under Section 4.4(a), Section 7.4(b) or Section
9.3, and




     (ii) any distribution under Section 4.1 used by the Company to pay or to
establish reserves for payment of Excluded Amounts;



     or




     (b) if the distribution would violate the Act or other Law.



     4.4. Distributions for Taxes of the Company; Tax Loan to Sprint.




     (a) Three Business Days prior to




     (i) each date on which the Company is required to



                    (A) make a deposit of U.S. federal estimated Taxes,



                    (B) make a payment of U.S. federal Taxes in connection with the filing, or the
extension of the date for filing, of a U.S. federal Tax Return with respect to a Taxable
Year (other than a U.S. federal Tax Return filed in connection with the deposit of U.S.
federal estimated Taxes) or



                    (C) make a payment with respect to an assessment of U.S. federal Taxes not described in
clause (A) or clause (B) above (each of clauses (A)-(C), a “Federal Tax Payment”)
and




     (ii) each date on which the Company is required to



                    (A) make a deposit of state estimated Taxes,



                    (B) make a payment of state Taxes in connection with the filing, or the extension of
the date for filing, of a state Tax Return with respect to a
Taxable Year (other than a state Tax Return filed in connection with the deposit of
state estimated Taxes) or



                    (C) make a payment with respect to an assessment of state Taxes not described in clause
(A) or clause (B) above (each of clauses (A)-(C), a “State Tax Payment”),


the Managing Member will cause the LLC to make distributions to the Members pro rata in accordance
with the Members’ respective Percentage Interests (determined as of the date set forth in clauses
(v), (w), (x), (y) and (z) below) in amounts so that the aggregate portion distributed to the
Company and its Company Disregarded Subsidiaries in each instance will be the amount required to
provide the Company with the funds necessary to pay all Taxes then reasonably determined by the
Company to be payable (or reasonably expected, within three Business Days after such distribution,
to become payable) by the Company with respect to its distributive share of the LLC’s taxable
income (including any items of income, gain, loss or


8









 






deduction allocated to the Company under
principles of Code Section 704(c)), after taking into account all net operating loss deductions and
other Tax benefits reasonably expected to be available to the Company (“Covered Tax
Liability”). For avoidance of doubt, the Covered Tax Liability of the Company for any taxable
period shall be determined by including each Company Disregarded Subsidiary’s distributive share of
the LLC’s taxable income (including any items of income, gain, loss or deduction allocated to such
Company Disregarded Subsidiary under principles of Code Section 704(c)) for such taxable period.
For purposes of this Section 4.4(a), a Member’s Percentage Interest shall be determined:





     (v) with respect to distributions in respect of a Federal Tax Payment described in
clause (i)(A) of this Section 4.4(a), as of the date that is the last day in the immediately
preceding period for which estimated federal Tax deposits are required to be determined by
the Company;




     (w) with respect to distributions in respect of a Federal Tax Payment described in
clause (i)(B) of this Section 4.4(a), as of the date that is the last day of the Taxable
Year of the Company to which such Federal Tax Payment relates;




     (x) with respect to distributions in respect of a State Tax Payment described in clause
(ii)(A) of this Section 4.4(a), as of the date that is the last day in the immediately
preceding period for which state estimated Tax deposits are required to be determined by the
Company




     (y) with respect to distributions in respect of a State Tax Payment described in clause
(ii)(B) of this Section 4.4(a), as of the date that is the last day of the Taxable Year of
the Company to which such State Tax Payment relates; and




     (z) with respect to any distribution pursuant to this Section 4.4(a) not described in
clauses (v), (w), (x) or (y) above, as of the date on which the applicable distribution is
made.


The provisions of this Section 4.4(a) shall apply to a Person if that Person owned Units as of any
of the dates specified in clauses (v) through (z) above with respect to such distribution, even if
that Person no longer holds such Units on the date of the distribution. Notwithstanding anything
in this Section 4.4(a) to the contrary, if a Person was a Unit Holding Company Stockholder on a
date specified in clauses (v) through (z) above with respect to a distribution under this Section
4.4(a) but is not a Unit Holding Company Stockholder with respect to that Unit Holding Company on
the date of such distribution by reason of a Holding Company Exchange, the distribution with
respect to that Unit Holding Company shall be made to the Person that was the Unit Company
Stockholder with respect to that Unit Holding Company on the applicable date specified in clauses
(v) through (z). Any Person otherwise entitled to a distribution under this Section 4.4(a) may, by
written notice to the LLC at any time prior to the payment of such distribution, waive its right to
such distribution, which waiver may be (X) with respect to all of the Units owned or previously
owned by such Person (or with respect to Units owned by a Unit Holding Company that any Person owns
or previously owned) at the times specified in clauses (v) through (z) above, (Y) with respect to
only a portion of such Units, and (Z) limited to a specified amount of distributions or with
respect to specific dates specified in clauses (v) through


9









 






(z) above, and any such waiver shall be
irrevocable with respect to the distributions described therein. The provisions of this Section
4.4(a) shall apply without duplication with respect to each distribution payable hereunder and if,
under the foregoing provisions, more than one Person would be entitled to receive the same
distribution pursuant to this Section 4.4(a) (each, a “Potential Distributee”), such
distribution shall be paid to the Person identified on a certificate delivered to the Managing
Member and signed by all Potential Distributees with respect to such distribution.





     (b) If the LLC or any of its Subsidiaries enters into a transaction resulting in the
recognition of any portion of the Built-In Gain with respect to a Former Sprint Asset other
than in connection with (i) a Dissolution Event or (ii) the transfer of any Former Sprint
Asset if such transfer results from an inability of the LLC to operate its wireless
broadband network in certain territories or any court ordered requirement of divestiture of
any such assets, in each case as a result of the Indemnified Litigation (a “Sprint Gain
Transaction”), the Managing Member will cause the LLC to make available a loan to
Sprint on terms that are consistent with the terms set forth on attached Exhibit A
(a “Sprint Tax Loan”). The LLC will provide Sprint and the tax representative of
Sprint identified pursuant to Section 5.11(b) with written notice of the transaction within
five Business Days after the closing of a Sprint Gain Transaction and will provide to
Sprint all information concerning the Sprint Gain Transaction as reasonably requested by
Sprint. The LLC shall have no obligation to make a Sprint Tax Loan in respect of a Sprint
Gain Transaction if Sprint has not provided the LLC with written notice of its intent to
obtain a Sprint Tax Loan with respect to such Sprint Gain Transaction within 15 days of the
receipt of such notice by Sprint and its tax representative from the LLC. Any Sprint Tax
Loan in respect of a Sprint Gain Transaction shall be made to Sprint no later than the
later of (x) five Business Days prior to the first date for corporate estimated income Tax
deposits following the closing of the Sprint Gain Transaction and (y) the third Business
Day after Sprint shall have provided the LLC with written notice pursuant to this Section
4.4(b) of its intent to obtain a Sprint Tax Loan with respect to a Sprint Gain Transaction.



ARTICLE V




CAPITAL CONTRIBUTIONS; CAPITAL ACCOUNTS;

TAX ALLOCATIONS; TAX MATTERS




     5.1. Initial Capital Contributions. The Members have made or are deemed to have made,
on or before the Effective Date, Capital Contributions, and have acquired the number of Voting
Units and Non-Voting Units specified opposite their respective names on Exhibit B (the
“Register”). The Capital Account balance of each Member as of the Effective Date (the
“Initial Capital Account”) is set forth opposite that Member’s name on Exhibit C.
If an adjustment is made pursuant to Section 4.3(a) of the Transaction Agreement,




     (i) the number of Class B Common Units owned by Intel and the Strategic
Investors will be adjusted as provided in Section 4.3(a)(i) or (ii) of the
Transaction Agreement, as the case may be, and



10









 






     (ii) the number of Voting Units and Class A Common Units owned by the Company
will be adjusted pursuant to Section 4.3(a)(iii) or (iv) of the Transaction
Agreement, as the case may be,


and, in each case, the Register will be revised accordingly. Upon any such adjustment, the Initial
Capital Account of each of Sprint and the Company will be retroactively adjusted effective as of
the Effective Date (an “Adjusted Initial Capital Account”) as follows (and Exhibit
C shall be revised accordingly): The Adjusted Initial Capital Account will be:





     (x) in the case of Sprint, the product obtained by multiplying (i) Sprint’s
Initial Capital Account by (ii) the quotient obtained by dividing the NewCo Volume
Weighted Share Price (as defined in the Transaction Agreement) by $20.00 (i.e., if
the NewCo Volume Weighted Share Price is $17.00, the adjusted Initial Capital
Account of Sprint will be the product of the Initial Capital Account of Sprint
multiplied by the fraction 17/20; alternatively, if the NewCo Volume Weighted Share
Price is $23.00, the Adjusted Initial Capital Account of Sprint will be the product
of the Initial Capital Account of Sprint multiplied by the fraction 23/20); and




     (y) in the case of the Company,




     (A) the amount of cash contributed by the Company to the LLC pursuant
to Section 4.2 of the Transaction Agreement, plus




     (B) the product obtained by multiplying (I) the Company’s Initial
Capital Account (except to the extent such Capital Account is attributable
to the contribution of cash by the Company to the LLC
pursuant to Section 4.2 of the Transaction Agreement) by (II) the
quotient obtained by dividing the NewCo Volume Weighted Share Price (as
defined in the Transaction Agreement) by $20.00.


The Members intend that the Adjusted Initial Capital Accounts of the Members (reduced by any
Adjusted Initial Capital Account attributable to the Voting Units) shall be in proportion to their
Percentage Interests immediately following such adjustments, and this Section 5.1 shall be
interpreted consistently with that intent.




     5.2. No Additional Capital Contributions; Additional Funds. 




     (a) Except as otherwise provided in this Article V or Article VII, no
Member will be required to make additional Capital Contributions to the LLC without the
consent of that Member or permitted to make additional Capital Contributions to the LLC
without the consent of the Managing Member.




     (b) Subject to Section 5.2(e) and the obligations of the LLC under Article
VII, the Managing Member may, at any time and from time to time, determine in its sole
and absolute discretion that the LLC requires additional funds for the purposes relating to



11









 







the LLC’s business (“Additional Funds”). Additional Funds may be obtained by the
LLC, at the direction of the Managing Member, in any manner provided in, and in accordance
with, the terms of this Agreement without the approval of any other Members.




     (c) Subject to Section 5.2(e) and the obligations of the LLC under Article
VII, the Managing Member, on behalf of the LLC, may obtain any Additional Funds by
causing the LLC to incur indebtedness to any Person, in each case on the terms as the
Managing Member determines are appropriate, including making the indebtedness convertible,
redeemable or exchangeable for Units or Common Stock, except that the LLC will not incur
that indebtedness if




     (i) a breach, violation or default of the indebtedness would be deemed to occur
by virtue of the Transfer of any LLC interest, or




     (ii) the indebtedness is recourse to any Member (unless the Member otherwise
agrees).




     (d) Subject to Section 5.2(e), the Managing Member, on behalf of the LLC, may obtain
any Additional Funds by causing the LLC to incur indebtedness to the Company if the
indebtedness is, to the extent permitted by Law, on substantially the same terms and
conditions (including interest rate, repayment schedule, and conversion, redemption,
repurchase and exchange rights, but not including financial covenants) as indebtedness
incurred by the Company, the net proceeds of which are loaned to the LLC to provide the
Additional Funds.




     (e) Except for the Secured Note (as defined in the Transaction Agreement), neither the
LLC nor any of its Subsidiaries (other than a Subsidiary that is treated as a
corporation for U.S. federal income tax purposes) will borrow any funds from any
Member (including the Company) or any Member’s Affiliate, incur any indebtedness that is
guaranteed by a Member or a Member’s Affiliate, or otherwise incur a liability that is not
a “nonrecourse liability” within the meaning of Regulations Section 1.752-1(a)(2) (any such
arrangement, a “Specified Financing”), unless




     (i) the economic terms of such Specified Financing are more favorable, in the
aggregate, than those that could be obtained by the LLC in a borrowing that is
treated as a “nonrecourse liability” within the meaning of Regulations Section
1.752-1(a)(2), and




     (ii) each Member has been provided with at least 15 days’ prior written notice
of the LLC’s intention to obtain the Specified Financing (including all material
terms of the Specified Financing) and an opportunity during such 15-day period to
make a good faith proposal for an alternative structure for the Specified Financing
that:




     (A) has economic terms that are, in the aggregate, no less favorable to
the LLC than the Specified Financing in all respects (other than
insubstantial differences in economic terms),



12









 






     (B) has conditions to closing that are, in the aggregate, not more
burdensome to the LLC than those in the Specified Financing (other than de
minimis administrative burdens), and




     (C) will allow the indebtedness to be treated as a “nonrecourse
liability” within the meaning of Regulations Section 1.752-1(a)(2) (a
“Nonrecourse Alternative Financing”); provided that if the
indebtedness cannot be structured as a Nonrecourse Alternative Financing
under circumstances described in clauses (A) and (B) above, then any Member
may propose an alternative structure that satisfies the requirements
described in clauses (A) and (B) above and that will result in the
indebtedness being allocated to the proposing Member under Code Section 752
in accordance with the Member’s Percentage Interest (or in such proposing
Member’s discretion, in accordance with a percentage that is less than such
Member’s Percentage Interest) (a “Recourse Alternative Financing”).




     If the Managing Member receives from the Members competing Alternative Financing
proposals, then the Managing Member will choose one such Alternative Financing proposal;
provided, however that (x) Nonrecourse Alternative Financing proposals will be given
precedence over Recourse Alternative Financing proposals and (y) the Managing Member will be
required to implement a proposed Nonrecourse Alternative Financing if such proposal
satisfies the requirements in clauses (A) and (B) above. The Managing Member will deliver
to each Member notice and a description of the Alternative Financing proposal it has chosen.
If that Alternative Financing proposal is a Recourse Alternative Financing, then each
Member will have ten days from receipt
of draft definitive documents with respect to such Recourse Alternative Financing to
notify the Managing Member that such Member intends to participate in such Recourse
Alternative Financing and the extent of such Member’s intended participation (it being
understood that each Member will be entitled to participate in such Recourse Alternative
Financing in accordance with the Member’s Percentage Interest (or in such Member’s
discretion, in accordance with a percentage that is less than such Member’s Percentage
Interest)). If the Managing Member does not receive notice from a Member under the
preceding sentence within such ten-day period, the Member will be presumed to have elected
not to participate in that Recourse Alternative Financing. Any Member participating in a
Recourse Alternative Financing proposal will timely execute and deliver any and all
documents that the Managing Member or the applicable lender may reasonably request to
consummate that Recourse Alternative Financing.




     The Managing Member will cause the LLC to use its Reasonable Best Efforts to consummate
the Alternative Financing, and the amount and terms of the Specified Financing shall be
adjusted to take into account the Alternative Financing that is consummated. For the
avoidance of doubt, (X) the LLC may enter into a Specified Financing that satisfies clause
(i) of this Section 5.2(e), notwithstanding a Member’s proposal for Alternative Financing,
if the Managing Member determines in good faith that such Alternative Financing is not,
using Reasonable Best Efforts, feasible; (Y) no Member shall have any obligation to propose
or participate in any Alternative Financing;



13









 







and (Z) the LLC shall not enter into any
Alternative Financing if such Alternative Financing would adversely affect a Member (not
taking into account for this purpose an adverse effect to a Member resulting solely from an
Alternative Financing qualifying as a “recourse liability” or a “nonrecourse liability”
within the meaning of Regulations Section 1.752-1(a)(1) and (2), as the case may be) not
participating in such Alternative Financing.



     5.3. Capital Accounts. There has been established for each Member on the books of the
LLC, a capital account (each being a “Capital Account”). Each Member’s Capital Account
will be maintained in accordance with the provisions of Regulations Section 1.704-1(b)(2)(iv) and
the provisions of this Agreement. The Capital Account of each Member will be




     (a) credited with Capital Contributions made (or deemed to have been made) by that
Member, all Profits (and any individual items of income or gain) allocated to that Member
under Section 5.4 and any items of income or gain that are specially allocated to that
Member under Sections 5.5 and 5.6; and




     (b) debited with all Losses (and any individual items of loss or deduction) allocated
to that Member under Section 5.4, any items of loss or deduction of the LLC specially
allocated to that Member under Sections 5.5 and 5.6, and all cash and the Carrying Value of
any property (net of liabilities assumed by that Member and the liabilities to which the
property is subject) distributed by the LLC to that Member.


The Capital Account of each Member will also be adjusted appropriately to reflect any other
adjustment required under Regulations Section 1.704-1 or 1.704-2. Any references in any
section of this Agreement to the Capital Account of a Member will be deemed to refer to the Capital
Account as it may be credited or debited from time to time as set forth above. In the event of any
Transfer of any interest in the LLC in accordance with the terms of this Agreement, the Transferee
will succeed to the Capital Account of the Transferor to the extent it relates to the Transferred
interest.




     5.4. Allocations of Profits and Losses.




     (a)Except as otherwise provided in this Agreement, Profits, Losses and, to
the extent necessary, individual items of income, gain, loss or deduction will be allocated
in a manner that results in the Partially Adjusted Capital Account Balance of each Member,
immediately after making the allocation, being, as nearly as possible, equal
(proportionately) to the distributions that would be made to the Member under Article IX if
the LLC were dissolved, its affairs wound up and its assets were sold for cash equal to
their Carrying Values, all LLC liabilities were satisfied (limited with respect to each
non-recourse liability to the Carrying Value of the assets securing the liability),
including the LLC’s share of any liabilities of an entity treated as a partnership for U.S.
federal income tax purposes of which the LLC is a member, and the net assets of the LLC were
distributed in accordance with Article IX to the Members immediately after making the
allocation.




14











 






     (b) The Members agree that (i) any amount paid to the LLC by Sprint pursuant to Article
13 of the Transaction Agreement shall be treated as an additional Capital Contribution by
Sprint of such amount (without the issuance of any additional Units) and (ii) Section 5.4
shall be applied by specially allocating to Sprint, to the greatest extent possible, items
of deduction and loss of the LLC attributable to the events giving rise to such payment by
Sprint.



     5.5. Special Allocations. The following special allocations will be made in the
following order:




     (a) Minimum Gain Chargeback. If there is a net decrease in LLC Minimum Gain
during any Taxable Year, each Member will, to the extent required by Regulations Section
1.704-2(f), be specially allocated items of LLC income and gain for the Taxable Year (and,
to the extent required by Regulations Section 1.704-2(j)(2)(iii), subsequent Taxable Years)
in an amount equal to that Member’s share of the net decrease in LLC Minimum Gain.
Allocations under the previous sentence will be made in accordance with Regulations Section
1.704-2(f)(6). This Section 5.5(a) is intended to comply with the minimum gain chargeback
requirement in Regulations Section 1.704-2(f) and will be interpreted consistently with
that intent.




     (b) Member Minimum Gain Chargeback. If there is a net decrease in Member
Nonrecourse Debt Minimum Gain during any Taxable Year, each Member who has a share of that
Member Nonrecourse Debt Minimum Gain as of the beginning of the Taxable Year will, to the
extent required by Regulations Section 1.704-2(i)(4), be specially allocated items of LLC
income and gain for the Taxable Year (and, if necessary, subsequent Taxable Years) equal to
that Member’s share of the net decrease in Member Nonrecourse Debt Minimum Gain.
Allocations under the previous sentence will be made in accordance with Regulations Section
1.704-2(i)(4). This Section 5.5(b) is intended to comply with the requirement in
Regulations Section 1.704-2(i)(4) and will be interpreted consistently with that intent.




     (c) Limitations on Loss Allocations. With respect to any Member,
notwithstanding the provisions of Section 5.4, the amount of Loss for any Taxable Year or
other period that would otherwise be allocated to a Member under Section 5.4 will not cause
or increase a deficit Adjusted Capital Account Balance. Any Loss in excess of the
limitation set forth in this Section 5.5(c) will be allocated among the Members, pro rata,
to the extent each, respectively, has a positive Adjusted Capital Account Balance.




     (d) Qualified Income Offset. If any Member receives an unexpected adjustment,
allocation, or distribution described in Regulations Section l.704-l(b)(2)(ii)(d)(4-6) in
any Taxable Year or other period which would cause the Member to have a deficit Adjusted
Capital Account Balance as of the end of the Taxable Year or other period, items of Company
income and gain (consisting of a pro rata portion of each item of Company income, including
gross income and gain) will be specifically allocated to the Member in an amount and manner
sufficient to eliminate, to the extent required by the Regulations, the deficit in the
Member’s Adjusted Capital Account Balance as quickly as possible. This Section 5.5(d) is
intended to comply with the



15









 







qualified income offset provision in Regulations Section l.704-l(b)(2)(ii)(d) and will
be interpreted consistently therewith.




     (e) Gross Income Allocation. If any Member would otherwise have a deficit
Adjusted Capital Account Balance as of the last day of any Taxable Year or other period,
individual items of income and gain of the Company will be specifically allocated to the
Member (in the manner specified in Section 5.5(d)) so as to eliminate the deficit as
quickly as possible.




     (f) Nonrecourse Deductions. Nonrecourse Deductions for any Taxable Year or
other period will be specially allocated to the Members in proportion to their Percentage
Interests.




     (g) Member Nonrecourse Deductions. Member Nonrecourse Deductions for any
Taxable Year or other period will be specially allocated to the Member who bears the
economic risk of loss with respect to the “partner nonrecourse debt” (as that term is
defined in Regulations Section 1.704-2(b)(4)) to which the Member Nonrecourse Deductions
are attributable, in accordance with Regulations Section 1.704-2(i)(1).



     5.6. Curative Allocations. The allocations set forth in Section 5.5(a) — (g) (the
“Regulatory Allocations”) are intended to comply with certain requirements of the
Regulations. It is the intent of the Members that, to the extent possible, all Regulatory
Allocations that are made be offset either with other Regulatory Allocations or with special
allocations under this Section 5.6. Therefore, notwithstanding any other provision of this
Article V (other than the Regulatory Allocations), the Managing Member will make offsetting
special allocations in whatever manner it determines appropriate so that, after the offsetting
allocations are made, each Member’s Capital Account balance is, to the extent possible, equal to
the Capital Account balance the Member would have had if the Regulatory Allocations were not part
of the Agreement and all LLC items were allocated under Section 5.4. In exercising its discretion
under this Section 5.6, the Managing Member will take into account future Regulatory Allocations
under Sections 5.5(a) and 5.5(b) that, although not yet made, are likely to offset other Regulatory
Allocations previously made under Sections 5.5(f) and 5.5(g).



     5.7. Other Allocation Rules.




     (a) (i) Subject to Section 5.7(a)(ii), for purposes of determining the Profits,
Losses, or any other items allocable to any period, Profits, Losses, and other items will
be determined on a daily, monthly, or other basis, as determined by the Managing Member
using any permissible method under Code Section 706 and the Regulations thereunder;
provided that in the case of a Transfer of Units or other equity interests in the LLC, the
Managing Member shall, upon request of the Transferor or Transferee, promptly notify the
Transferor and Transferee of the method that it will use to allocate Tax items for the
Taxable Year of the Transfer between the Transferor and Transferee, and unless the next
sentence applies shall use such method to effect such allocation. If the Transferor and
Transferee desire to use a method that differs from such method, and the desired method is
permitted by the Code as determined by the Managing Member in its reasonable discretion,
the Managing Member shall use such other method, but only if



16









 







(i) the Transferor and Transferee submit a written request to the Managing Member
indicating the method they desire to use within ten days after the applicable Transfer,
(ii) the Transferor and Transferee agree in a manner reasonably satisfactory to the
Managing Member to reimburse the LLC for the reasonable incremental costs, if any, incurred
in applying such method and (iii) such other method does not adversely affect the other
Members any more than the method initially selected by the Managing Member.




     (ii) For purposes of determining Profits, Losses, or any other items allocable to
Class B Common Units exchanged pursuant to Section 7.9 (including pursuant to a Holding
Company Exchange), the Managing Member shall, in accordance with Regulations Section
1.706-1(c)(2), allocate such items using an interim closing of the LLC’s books as of the
date of such exchange.




     (b) Except as otherwise provided in this Agreement, all items of LLC income, gain,
loss, deduction, and any other allocations not otherwise provided for will be divided among
the Members in the same proportions as they share Profits or Losses, as the case may be,
for the Taxable Year.




     (c) For purposes of determining the Members’ shares of “nonrecourse liabilities” (as
that term is defined in Regulations Section 1.752-1(a)(2)), any “excess nonrecourse
liabilities” (as that term is defined in Regulations Section 1.752-3(a)(3)) will be
allocated among the Members in accordance with their Percentage Interests.




     (d) For U.S. federal income tax purposes, the Clearwire Pre-Closing Indebtedness and
the Sprint Pre-Closing Financing are treated as having been assumed by the LLC pursuant to
the Transaction Agreement. The LLC’s assumption of liabilities of Clearwire and Sprint in
connection with their initial Capital Contributions described in Section 5.1 will be
treated by the LLC as the assumption of “qualified liabilities” under Regulations Section
1.707-5(a)(6)(i)(D) except as otherwise required by Law in respect of any indebtedness
issued by Clearwire prior to the Closing in accordance with Sections 10.1(b)(iv)(F) or
10.1(b)(iv)(H) of the Transaction Agreement.



     5.8. Code Section 704(c); Tax Allocations.




     (a) In accordance with Code Section 704(c) and the Regulations thereunder, income,
gain, loss, and deduction with respect to any property contributed to the capital of the
LLC will, solely for Tax purposes, be allocated among the Members so as to take account of
any variation between the adjusted basis of the property to the LLC for U.S. federal income
tax purposes and its initial Carrying Value (i) using the “remedial method” under
Regulations Section 1.704-3(d) with respect to (x) the Former Clearwire Assets and (y)
Former Sprint Assets having Built-In Gains equal to 50% of the total Built-In Gains in the
Former Sprint Assets (the assets described clause (y), “Sprint Remedial Assets”)
and (ii) using the “traditional method” under Regulations Section 1.704-3(b) with respect
to Former Sprint Assets having Built-In Gains equal to 50% of the total Built-In Gains in
the Former Sprint Assets (the “Sprint Traditional Assets”). The Sprint Remedial Assets and Sprint Traditional Assets shall be designated in a



17









 




manner such that the annual Tax deductions with respect to the Sprint Remedial Assets are,
to the greatest extent possible, equal to the annual Tax deductions that would have been
allocated with respect to the Sprint Traditional Assets had the LLC elected the remedial
method with respect to the Sprint Traditional Assets. The Managing Member shall, as
promptly as possible after the date hereof, designate the Former Sprint Assets as Sprint
Remedial Assets and Sprint Traditional Assets, as the case may be, in accordance with the
terms of this Section 5.8(a). Any disagreement concerning the designations of the Sprint
Remedial Assets and the Sprint Traditional Assets will be resolved as provided in Section
5.11(e).





     (b) If the Carrying Value of any LLC asset is adjusted under clauses (i), (ii), or
(iii) of the definition of Carrying Value, subsequent allocations of income, gain, loss,
and deduction with respect to such asset will take account of any variation between the
Carrying Value thereof immediately before such adjustment and the Carrying Value thereof
immediately after such adjustment (such difference, a “Reverse 704(c) Layer”) in
accordance with the principles of Section 704(c) and Regulations Section 1.704-3(a)(6)
using the “traditional method” under Regulations Section 1.704-3(b). For this purpose and
except to the extent required by the Regulations, none of the adjusted basis of an asset
shall be allocated to a Reverse 704(c) Layer.




     (c) Except as otherwise provided in this Section 5.8, any elections or other decisions
relating to allocations will be made by the Managing Member acting reasonably and in good
faith. Allocations under this Section 5.8 are solely for purposes of U.S. federal, state,
and local Taxes and will not affect, or in any way be taken into account in computing, any
Member’s Capital Account or share of Profits, Losses, other items, or distributions under
any provision of this Agreement.




     (d) In accordance with Regulations Section 1.704-3(a)(7), upon the Transfer of any
Units originally issued to Sprint, the Transferee shall be allocated a share of the
built-in gain or loss as of the time of the Transfer, as well as a share of the built-in
gain or loss subject to the remedial method under Regulations Section 1.704-3(d) and a
share of the built-in gain or loss subject to the traditional method under Regulations
Section 1.704-3(b) (in each case prior to any adjustment under Code Section 743(b) that may
apply as a result of such Transfer), that would otherwise be allocable to the Transferor
that is in the same proportion to the total amounts of such built-in gain or loss otherwise
allocable to the Transferor as the number of Units so Transferred is to the total number of
Units held by the Transferor immediately prior to the Transfer.




     (e) Income, gain, loss, deduction and credit of the LLC for U.S. federal income tax
purposes shall be allocated in the same manner as the corresponding items were allocated
among the Members pursuant to Sections 5.4, 5.5 or 5.6.



     5.9. Tax Withholding.




     (a) The LLC will withhold and pay over to the Internal Revenue Service or other
applicable Taxing authority all Taxes or withholdings, and all interest, penalties, additions to Tax, and similar liabilities in connection therewith or attributable
thereto



18









 







(“Withheld Taxes”) to the extent that the Tax Matters Member in good faith
determines that withholding or payment is required by the Code or any other Law. The Tax
Matters Member in good faith will determine to which Member the Withheld Taxes are
attributable. For example, Withheld Taxes measured with respect to a Member’s distributive
share of the LLC’s income, gain, or other LLC item would be attributable to that Member.
All Withheld Taxes will be withheld against the amounts otherwise distributable to the
Member to which the Withheld Taxes are attributable, and any amounts so withheld will be
treated as a distribution to that Member. If any Withheld Taxes attributable to a Member
exceed the amount otherwise distributable to the Member, the excess will be considered a
loan (a “Withholding Loan”) by the LLC to the Member.




     (b) The borrowing Member shall have the right to prepay, in whole or in part, a
Withholding Loan at any time and shall be required to repay any such Withholding Loan
within ten days after the Tax Matters Member delivers a written demand therefor, together
with interest from the date the loan was made until the date of the repayment at a rate per
annum equal to the LLC’s cost of debt capital, as reasonably determined by the Managing
Member. Absent prior demand, the maturity of the Withholding Loan will be the date of
dissolution of the LLC. If a Withholding Loan is not paid when due, distributions from the
LLC to the borrowing Member (including distributions pursuant to Section 4.4(a)) may be
withheld and applied toward repayment of the accrued and unpaid interest and principal on
such Withholding Loan, with any amounts so withheld being treated as having been
distributed to the borrowing Member for purposes of this Agreement.



     5.10. Successors in Interest. If a Member Transfers all or part of its Units in
accordance with this Agreement, references in this Article V to amounts previously
contributed by the Member or to amounts previously allocated or distributed to the Member will
refer to the Transferee to the extent they pertain to the Transferred interest.



     5.11. Other Tax Matters.




     (a) The Managing Member will be the initial “tax matters partner” of the LLC within
the meaning of Code Section 6231(a)(7) (the “Tax Matters Member”). The Tax Matters
Member will take reasonable action to cause each other Member to be treated as a “notice
partner” within the meaning of Code Section 6231(a)(8). All reasonable expenses incurred
by a Member while acting in its capacity as Tax Matters Member will be paid or reimbursed
by the LLC and the exculpation and indemnification provisions of Article X will
apply to the Managing Member acting in its capacity as the Tax Matters Member.




     (b) Each Member shall have the right to designate a tax representative (which, with
respect to the Company, will be a tax attorney or accountant appointed, from time to time,
by the chairperson of the Audit Committee (the “Company Tax Representative”)),
which person will be given at least five Business Days advance notice from the Tax Matters Member of the time and place of, and will have the right
to participate in (and the LLC and the Tax Matters Member will take any actions as may



19









 







be necessary to cause the tax matters partner of any Partnership Subsidiary to extend to each
Member and the Company Tax Representative the right to participate in):




     (i) any material aspect of any administrative or judicial proceeding relating
to the determination of partnership items at the LLC level (or at the level of any
Partnership Subsidiary); and




     (ii) any material discussions with the Internal Revenue Service or other Taxing
authority relating to allocations under Article V (or under the operating
agreement of any Partnership Subsidiary).




The Tax Matters Member will not, and the LLC will not permit the tax matters partner of any
Partnership Subsidiary to, initiate any action or proceeding in any court, extend any
statute of limitations, settle any material income or franchise Tax dispute, or take any
other action contemplated by Code Sections 6222 through 6234 that would legally bind any
other Member, the LLC or any Partnership Subsidiary without approval of the affected
Member(s) (which, in the case of the Company, will require approval of the Company Tax
Representative), which approval may not be unreasonably withheld, conditioned or delayed,
except that for this purpose, it will not be unreasonable for a Member to withhold the
approval if the action proposed to be taken could materially and adversely affect such
Member. A Member may designate a replacement tax representative by providing written notice
of such change to the Managing Member.




     (c) The Tax Matters Member will timely cause to be prepared all U.S. federal, state,
local and foreign Tax returns and reports (including amended returns) of the LLC or any
Partnership Subsidiary for each year or period that the returns or reports are required to
be filed and, subject to the remainder of this subsection, will cause the Tax returns to be
timely filed. All federal and material state income and franchise Tax returns of the LLC
or any Partnership Subsidiary will be prepared or reviewed by a national accounting firm
selected by the Company Board or a committee of the Company, and no later than 30 days
before filing of such Tax returns, the Tax Matters Member will provide copies of all such
Tax returns to the tax representative of each Member and to the Company Tax Representative
for review. The Members and the Company Tax Representative shall be entitled to provide
comments on such Tax returns to the Tax Matters Member no later than 15 days after
receiving copies of the Tax returns, and the Tax Matters Member will incorporate the
comments, where reasonable, before filing the returns. The other Members and the Company
Tax Representative will take such actions as are reasonably requested by the Tax Matters
Member in connection with the preparation of the income and franchise Tax returns of the
LLC and any Partnership Subsidiary so as to ensure that all the returns are filed on a
timely basis and no filing penalties are incurred to the extent reasonably possible.




     (d) Within 90 days after the end of each Taxable Year, or as soon as reasonably
practical thereafter, the Tax Matters Member will prepare and send, or cause to be prepared
and sent, to each Person who was a Member at any time during the Taxable Year, copies of the information required for U.S. federal, state, local and
foreign income Tax reporting purposes, including copies of Form 1065 and Schedule K-



20









 







1 or any successor form or schedule, for that Person. At any time after the information has
been provided, on at least five Business Days’ notice from a Member or the Company Tax
Representative, the Tax Matters Member will also provide each Member and the Company Tax
Representative with a reasonable opportunity during ordinary business hours to review and
make copies of all work papers related to the information or to any return prepared under
subsection (c) above. At the request of any Member, as soon as practicable following the
end of each period for which corporate estimated Tax deposits are required to be made (and
in any event not later than ten days after the end of such period), the Tax Matters Member
will also cause to be provided to each Member an estimate of each Member’s share of all
items of income, gain, loss, deduction and credit of the LLC for the estimated Tax period
just completed and for the Taxable Year to date for U.S. federal income tax purposes. The
Managing Member will provide to the Members and the Company Tax Representative any material
true-ups, corrections or changes to any information previously provided under this Section
5.11(d) as soon as reasonably practicable after becoming aware that a material true-up,
correction or change is appropriate.




     (e) At the request of any Member or the Company Tax Representative, the Tax Matters
Member will cause the LLC’s tax attorneys and accountants to confer with the other Members
and the Company Tax Representative and their attorneys and accountants on any material
matters relating to any LLC or Partnership Subsidiary Tax return, Tax election, Tax
dispute, Tax valuation (including the determination of the initial Carrying Value of any
property) or other item affecting the Taxes of the LLC, its Subsidiaries or the Members the
resolution of which is not otherwise expressly provided for in this Agreement. The Members
(including the Company Tax Representative) will use their good faith efforts to resolve any
such matters in a mutually satisfactory manner. If, after those efforts have continued for
15 Business Days, no mutually satisfactory solution has been reached, the matter will be
resolved by the unanimous vote of the Members of the CFO Committee. If the CFO Committee
cannot unanimously agree to the resolution of the matter, the matter will be resolved by
the Neutral Accountants.




     (f) With respect to any Tax information provided by the Tax Matters Member to a Member
or the Company Tax Representative under Sections 5.11(b) — (e), the same information will
be provided to the other Members and the Company Tax Representative, as applicable, at the
same time, unless a Member or the Company Tax Representative requests that it not be
provided that information.




     (g) (i) Unless the LLC has a Bona Fide Non-Tax Business Need, the LLC and its
Subsidiaries will not enter into a taxable sale or other taxable disposition of Former
Clearwire Assets or Former Sprint Assets that are intangible property and that would cause
the recognition for income Tax purposes (disregarding the possible use of the installment
reporting method under Code Section 453) of Built-In Gains arising from such sales or other
dispositions in excess of $10 million to be allocated to the Company or Sprint under Code
Section 704(c) during any period of 36 months (a “Significant BIG Disposition”); provided that a Significant BIG Disposition
will not include the disposition of any Former Clearwire Assets or Former Sprint Assets if
such



21









 







disposition results from an inability of the LLC to operate its wireless broadband network in certain territories or any court ordered requirement of divestiture of any such
assets, in each case as a result of the Indemnified Litigation.




     (ii) At least ten Business Days prior to entering into a binding contract for a
Significant BIG Disposition, the Managing Member will send a written notice to all
Members and their tax representatives that sets forth all material terms of the
Significant BIG Disposition. Within ten Business Days of receipt of such notice,
the Company Tax Representative or Sprint, as the case may be, will have the right to
request a written certification by the chief financial officer of the Managing
Member that the Significant BIG Disposition is motivated by a Bona Fide Non-Tax
Business Need (a “CFO Certificate”). If a CFO Certificate is requested with
respect to a Significant BIG Disposition, the LLC and its Subsidiaries will not
consummate the Significant BIG Disposition unless the CFO Certificate is delivered
to the Members.




     (iii) If the Managing Member approves a Significant BIG Disposition that
involves a taxable sale or other taxable disposition of Former Sprint Assets, Sprint
shall have the right, within 15 Business Days of receipt of the CFO Certificate, to
transfer Class B Common Stock and Class B Common Units to one or more Sprint Unit
Holding Companies that will be entitled to complete Holding Company Exchanges.
During such 15-Business Day period, the LLC shall not enter into a binding contract
for the Significant BIG Disposition, and the Managing Member will reasonably
cooperate with Sprint in consummating any such Holding Company Exchanges within the
15-Business Day period.



     5.12. Tax Classification. The parties will treat the LLC as a partnership for U.S.
federal and all applicable state and local income tax purposes, and no Member will take any action
inconsistent with such treatment for U.S. federal, state and local income tax purposes unless (i)
the Company causes the LLC to be treated other than as a partnership in accordance with, and
subject to the conditions of, the Equityholders’ Agreement or (ii) there has occurred a change in
law or final determination to the contrary. The Managing Member will take any reasonable action
within its power required under the Code and applicable Regulations to cause the LLC to be treated
as a partnership for U.S. federal income tax purposes. To the extent the previous sentence does
not govern the state and local classification of the LLC, the Managing Member will take any
reasonable action within its power as may be required under any state or local Law applicable to
the LLC to cause the LLC to be treated as, and in a manner consistent with, a partnership for state
or local income tax purposes. The parties will treat Clearwire Sub LLC, Sprint LLC and each of the
Transfer Entities as entities disregarded as separate from the LLC in accordance with Regulations
Section 301.7701-2(c)(2). The LLC will not take any action inconsistent with that treatment for
U.S. federal income tax purposes other than in accordance with the procedures set forth in Section
2.7(a)(vi) of the Equityholders’ Agreement.



     5.13. Tax Elections. Except as otherwise provided this Agreement, all elections
required or permitted to be made by the LLC under the Code (or Law) will be made as determined by
the Managing Member, acting reasonably and in good faith, to be in the best interest of the Members
as a group. Notwithstanding the foregoing, (i) the LLC shall make and



22









 







maintain in effect a valid election under Code Section 754 and (ii) if the LLC does not otherwise qualify as a partnership
under Code Section 6231(a)(l) which is subject to the TEFRA partnership audit rules, the Tax
Matters Member will cause the LLC to make an election under Code Section 6231(a)(1)(B)(ii) to
subject the LLC to the TEFRA partnership audit rules.



ARTICLE VI




BOOKS AND RECORDS; REPORTS




     At all times during the continuance of the LLC, the LLC will prepare and maintain separate
books of account for the LLC in accordance with GAAP. The LLC will keep at its principal office
the following:




     (a) a current list of the full name and the last known street address of each Member;




     (b) a copy of the Original Operating Agreement;




     (c) a copy of the Certificate and this Agreement and all amendments thereto;




     (d) copies of the LLC’s federal, state and local income Tax returns and reports, if
any, for the three most recent years; and




     (e) copies of any financial statements, if any, of the LLC for the six most recent
Taxable Years.



ARTICLE VII




COMPANY UNITS




     7.1. Units.




     (a) Interests in the LLC are represented by one or more classes of Units. The Units
initially will be divided into Voting Units and Non-Voting Units, and the Non-Voting Units
will be designated as Class A Common Units or Class B Common Units. The Register contains
the name, Class and number of Units owned by each Member as of the Effective Date. The
Register will be revised from time to time by the Managing Member to reflect the admission
or withdrawal of a Member or the issuance, Transfer, assignment, redemption, repurchase,
acquisition, conversion, relinquishment to the Company or other cancellation or termination
of Units in accordance with the terms of this Agreement and other modifications to or
changes in the information set forth on the Register.




     (b) Notwithstanding any other provision of this Agreement, Units issued by the LLC
after the Effective Date to Persons who are not members of an Equityholder Group will be
deemed for purposes of Section 8.1(a)(iii) to be Units proposed to be Transferred by the
Managing Member and will, accordingly, be subject to the provisions of Section 8.1(a)(iii),
mutatis mutandis, as if such issuance by the LLC were a transfer



23









 







by the Managing Member and treating holders of Units so issued as members of the Managing Member’s Equityholder Group.



     7.2. Register. The Register will be the definitive record of ownership of each Unit
and all relevant information with respect to each Member. Unless the Managing Member determines
otherwise, Units will be uncertificated and recorded in the books and records of the LLC.



     7.3. Splits, Distributions and Reclassifications. The LLC will not in any manner
subdivide (by any Unit split, Unit distribution, reclassification, recapitalization or otherwise)
or combine (by reverse Unit split, reclassification, recapitalization or otherwise) any class or
series of the outstanding Units unless an identical event is occurring with respect to




     (a) all other classes or series of the outstanding Units, and




     (b) all classes or series of Equity Securities (including Class A Common Stock and
Class B Common Stock),



in which event the Managing Member will cause the classes or series of Units to be subdivided or
combined concurrently with and in the same manner and to the same extent as the classes or series
of Equity Securities of the Company.



     7.4. Cancellation or Redemption of Equity Securities and Units. 




     (a) Any time a share of Class B Common Stock is exchanged as set forth in Section 7.9
for a share of Class A Common Stock, then one Class B Common Unit will be cancelled without
any further consideration other than that specified in Section 7.9, and one Class A Common
Unit and one Voting Unit will be issued to the Company.




     (b) Any time any shares of Class A Common Stock or other Equity Securities are
redeemed, repurchased, acquired, cancelled or terminated by the Company (other than any
shares of Class A Common Stock or Equity Securities that were issued by the Company to fund
Other Business Activities), the Managing Member will cause the same number of Class A
Common Units and the same number of Voting Units (or the same number of comparable
securities of the LLC, as applicable) in the name of the Company to be redeemed,
repurchased, acquired, cancelled or terminated by the LLC for the same consideration, if
any, as the consideration paid by the Company so that the number of Class A Common Units
held by the Company at all times equals the number of shares of Class A Common Stock
outstanding. If the Company redeems shares of Class B Common Stock (other than any shares
of Class B Common Stock that were issued by the Company to fund Other Business Activities)
for cash, the Managing Member will simultaneously cause the same number of Voting Units in the name of the
Company to be redeemed for the same cash consideration.




     (c) If a Member Transfers a share of Class B Common Stock (as otherwise permitted by
the Equityholders’ Agreement and the Charter) without Transferring a corresponding Unit in
accordance with the terms of this Agreement, the share of Class B Common Stock will be
immediately redeemed by the Company for its Par Value per share in accordance with the
terms of the Equityholders’ Agreement and the Charter.



24









 






     (d) If a Member Transfers a Class B Common Unit (as permitted by this Agreement)
without Transferring a corresponding share of Class B Common Stock, the corresponding
number of shares of Class B Common Stock held by that Member will be immediately redeemed
by the Company for its Par Value per share in accordance with the terms of the
Equityholders’ Agreement and the Charter.




     (e) If, pursuant to Section 2.13(e) or Section 2.13(f) of the Equityholders’
Agreement, Sprint is reissued shares of Class B Common Stock in exchange for a payment to
the Company of an amount in cash equal to the aggregate Par Value of the shares of Class B
Common Stock to be so reissued, then the Company will contribute to the LLC the amount of
cash so received from Sprint and the LLC will issue to the Company a number of Voting Units
equal to the number of shares of Class B Common Stock reissued to Sprint.



     7.5. Incentive Plans. At any time the Company issues a share of Class A Common Stock
under an Incentive Plan (whether by the exercise of a stock option or the grant of a restricted
share award or otherwise), the following will occur: 




     (a) the net proceeds (including without limitation the amount of the exercise price
paid by the owner or the promissory note representing any loan made by the Company to the
owner with respect to a stock purchase award, which promissory note will be deemed to have
a fair market value equal to the original principal balance of that promissory note)
received by the Company with respect to the share of Class A Common Stock, if any, will be
paid or transferred by the Company to the LLC, which amounts will be treated for U.S.
federal income tax purposes as having been paid to the LLC by the person to whom the share
of Class A Common Stock is to be issued;




     (b) the Company will be deemed to make an additional Capital Contribution to the LLC
of an amount of cash equal to




     (i) the current per share market price of a share of Class A Common Stock on
the date the share is issued (or, if earlier, the date the related option is
exercised), reduced by




     (ii) the amount paid to the LLC as described under subsection (a) above;




     (c) the LLC will be deemed to purchase from the Company a share of Class A Common
Stock for an amount of cash equal to the sum of




     (i) the additional deemed Capital Contribution made by the Company to the LLC
in subsection (b) above and




     (ii) the amount paid to the LLC as described under subsection (a) above,




and to deliver such share of Class A Common Stock to its owner under the Incentive Plan (the
parties acknowledging that the deemed purchase will not cause the LLC to own the



25









 







shares for any purpose, including, without limitation, for the purpose of determining stockholders
entitled to receive dividends or vote);




     (d) in exchange for the payment by the Company to the LLC described in subsection (a)
above and the deemed Capital Contribution by the Company to the LLC described in subsection
(b) above (which aggregate amount will be credited to the Capital Account of the Company),
the LLC will issue to the Company one Class A Common Unit and one Voting Unit registered in
the name of the Company for each share of Class A Common Stock issued by the Company under
the Incentive Plan;




     (e) the LLC will claim any compensation deductions attributable to the issuance or
vesting, as the case may be, of shares of Class A Common Stock and any other deductions
available by reason of shares issued pursuant to an Incentive Plan (including, as
applicable, as a result of an election under Code Section 83(b)), which deductions will be
allocated among the Members in accordance with the allocation rules in Article V;




     (f) if the owner of any share of Class A Common Stock issued pursuant to an Incentive
Plan has timely made an election under Code Section 83(b) with respect to that share of
Class A Common Stock and the share of Class A Common Stock is subsequently forfeited, then
each of the actual and deemed steps described in subsections (a) through (e) above with
respect to that share of Class A Common Stock will be reversed including, without
limitation, the reversion of that share of Class A Common Stock to the Company, the
cancellation of the Class A Common Unit and Voting Unit issued to the Company and the
reversal, if and to the extent required by Regulations Section 1.83-6(c) or other
applicable Tax law, of any compensation deductions previously allocated to the Members; and




     (g) if a share of Class A Common Stock issued under an Incentive Plan is subject to a
substantial risk of forfeiture and is not transferable for purposes of Code Section 83, and
if a valid election under Code Section 83(b) has not been made with respect to such share
of Class A Common Stock, the foregoing transactions shall be deemed to occur for U.S.
federal income tax purposes when such share of Class A Common Stock is either transferable
or no longer subject to a substantial risk of forfeiture for purposes of Code Section 83.
Until such time, for U.S. federal income tax purposes (including for purposes of
maintaining Capital Accounts and computing Profits, Losses and related items), such share of Class A Common Stock shall not be
deemed to have been issued and any distributions with respect to such share of Class A
Common Stock shall for such purposes be treated as compensation paid to the holder thereof
by the LLC.



     7.6. Exercisable Rights. Except as provided in Section 7.5 and Section 7.9, any time
the Company issues any shares of capital stock on the exercise of any rights, options, warrants or
any convertible or exchangeable securities having the right to convert into, exchange for,
subscribe for or purchase any shares of Class A Common Stock or other capital stock of the Company
(“Exercisable Rights”), other than shares of Class A Common Stock or other capital



26









 







stock issued on the exercise of Exercisable Rights attributable to the funding by the Company of any
Other Business Activities, the following will occur:




     (a) the net proceeds (including without limitation the amount of the exercise price
paid by the owner) received by the Company with respect to the share of Class A Common
Stock or other capital stock of the Company, if any, will be concurrently transferred and
paid by the Company to the LLC as an additional Capital Contribution; and




     (b) on the date an Exercisable Right is exercised, the LLC will issue Units as
follows:




     (i) in the case of an issuance of shares of Class A Common Stock on the
exercise of Exercisable Rights, the LLC will issue to the Company an equal number of
Class A Common Units and an equal number of Voting Units registered in the name of
the Company; and




     (ii) in the case of an issuance by the Company of any other capital stock on
the exercise of Exercisable Rights, then the LLC will issue an equal number of Units
of a class or series of Units as the corresponding class or series of Equity
Securities issued by the Company with respect to the exercise of the Exercisable
Rights.


The Members agree to treat the issuance of Units pursuant to this Section 7.6 as having been issued
upon the exercise of rights issued under Section 7.7(a) and in accordance with Proposed Treasury
Regulations Sections 1.704-1(b)(2)(iv)(s) and 1.704-1(b)(4)(ix) (and any successor provisions
thereto).




     7.7. Issuances of Equity Securities.




     (a) Except as provided in Sections 7.5 or 7.6 or Sections 7.7(b) and (c) below, and
except for any Equity Securities issued by the Company to fund Other Business Activities,
which will not be taken into consideration for purposes of applying this Section 7.7, any
time the Company issues any Equity Securities (other than compensatory options issued
pursuant to an Incentive Plan), the following will occur:




     (i) the Company will contribute to the capital of the LLC an amount of cash
equal to the issue price of the Class A Common Stock or other Equity Securities (or,
in the case of the issuance of Equity Securities in exchange for property, then the
property received in exchange for the issuance of those Equity Securities) and the
Capital Account of the Company will be increased by the amount of cash and the fair
market value of the property contributed;




     (ii) the LLC will issue Units or other securities as follows:




     (A) in the case of an issuance of shares of Class A Common Stock, the
LLC will issue an equal number of Class A Common Units to



27









 







the Company and an equal number of Voting Units registered in the name of the Company; and




     (B) in the case of an issuance of any securities not covered under
clause (A), the LLC will issue an equal number of Units or other securities
(including Voting Units, if applicable) with designations, preferences and
other rights, terms and conditions (other than financial covenants
applicable to the Company, its Subsidiaries or direct or indirect parent
entities) that are substantially the same as the designations, preferences
and other rights, terms and conditions of the other Equity Securities,
registered in the name of the Company.




     (b) If a holder of Class B Common Units exercises its preemptive rights under Section
3.5(c) of the Equityholders’ Agreement to purchase Alternative New Securities (as described
in such Section 3.5(c)) in lieu of New Securities (as defined in the Equityholders’
Agreement), the holder of Class B Common Units will be entitled to purchase a number of
Alternative Units as provided under Section 3.5(c) of the Equityholders’ Agreement in
connection with that exercise of preemptive rights. The Alternative Units purchased in
accordance with the preceding sentence will have economic and other rights (other than
voting rights) that are the same as the economic and other rights (other than voting
rights) of the applicable New Securities. The price paid for the Alternative Units will be
that portion of the price for the New Securities set forth in the Notice of Issuance
delivered pursuant to Section 3.5(b) of the Equityholders’ Agreement allocated between the
Company and the LLC based on the relative value of the Alternative Voting Securities and
the Alternative Units. The portion of the purchase price attributable to Alternative
Voting Securities will be payable to the Company and the Company will contribute such
amount to the LLC in exchange for an equal number of Voting Units registered in the name of
the Company. The portion of the purchase price attributable to the Alternative Units will
be payable directly to the LLC as provided in Section 3.5(g) of the Equityholders’
Agreement and the Capital Account of the holder of Class B Common Units shall be adjusted
accordingly.




     (c) The intent of this Section 7.7 and Sections 7.3, 7.4, 7.5 and 7.6 is to ensure
that




     (i) the number of Voting Units held by the Company and any of its Subsidiaries
will at all times equal the sum of




     (A) the number of shares of Class A Common Stock outstanding, and




     (B) the number of shares of Class B Common Stock outstanding, and




     (C) without duplication, the number of Voting Securities (as defined in
the Equityholders’ Agreement) outstanding, and



28









 






     (ii) the number of Class A Common Units held by the Company will at all times
equal the number of shares of Class A Common Stock outstanding; and




     (iii) the number of Class B Common Units outstanding will at all times equal
the number of shares of Class B Common Stock outstanding;




except that, (x) with respect to subsection (iii) above, if a redemption of shares of Class
B Common Stock has occurred under Sections 7.4(c), 7.4(d), 7.11(b), 8.2(b) or 8.2(c) or
Section 2.13(d) of the Equityholders’ Agreement, then the number of shares of Class B Common
Stock that are outstanding will equal the number of outstanding Class B Common Units less
the number of shares of Class B Common Stock so redeemed, and the provisions of this Section
7.7 and Sections 7.3, 7.4, 7.5 and 7.6 will be interpreted consistently with that intent and
(y) any Equity Securities issued by the Company to fund Other Business Activities, will not
be taken into consideration for purposes of applying this Section 7.7.



     7.8. Registered Members. The LLC will be entitled to recognize the exclusive right of
a Person registered on its records as the owner of Units for all purposes and will not be bound to
recognize any equitable or other claim to or interest in Units on the part of any other Person,
whether or not it will have express or other notice thereof, except as otherwise provided by the
Act.



     7.9. Exchange of Units.




     (a) Subject to adjustment as provided in this Section 7.9, and on or after the date
that is 91 days after the Adjustment Date in the case of all holders of Class B Common
Units (the “Lock-up Period”), each holder of a Unit (other than the Company and its
Subsidiaries) will be entitled to exchange, from time to time, any or all of the holder’s
Units, as follows:




     (i) in the case of Class B Common Units, one Class B Common Unit together with
one share of Class B Common Stock will be exchangeable for one share of Class A
Common Stock (the “Common Unit Exchange Rate”), as provided in Section 5.1
of the Charter, and




     (ii) in the case of Units other than Class B Common Units, the Units will be
exchangeable for the Equity Securities or Units as are provided in the terms of the
exchangeable Units, including the designated exchange rate (the “Unit Exchange
Rate” and, together with the Common Unit Exchange Rate, the “Exchange
Rate”).




If any such exchange is being made to enable the holder to participate in a tender offer
made pursuant to Section 8.1(e), the exchange may, at the option of such holder, be
conditioned upon the closing of such tender offer, in which case such holder shall not be
deemed to have effected such exchange until immediately prior to the expiration of the
relevant tender offer period (any such exchange, a “Conditional Exchange”).



29









 






     (b) Notwithstanding the Lock-Up Period, each Member holding Class B Common Units may
at any time following the Adjustment Date exchange pursuant to Section 7.9(a) a number of
shares of Class B Common Stock together with a corresponding number of Class B Common
Units, not in excess of ten percent (10%) of the total number of shares of Class B Common
Stock and a corresponding number of Class B Common Units, issued to such Member at the
Closing for an equal number of shares of Class A Common Stock.




     (c) Any exchange right under Section 7.9(a) will be exercised by a written notice to
the Company and the LLC from the holder of the Units (the “Exchange Notice”)




     (i) stating that the holder desires to exchange a stated number of Units and
capital stock of the Company under Section 5.1 of the Charter and Section 7.9(a),
and




     (ii) specifying (x) a date that is not less than seven Business Days nor more
than 20 Business Days after delivery of the Exchange Notice on which the exchange is
to be completed or (y) that the exchange is a Conditional Exchange (the
“Exchange Date”).




The Exchange Notice must be accompanied by instruments of transfer to the Company, in form
satisfactory to the Company and to the Company’s transfer agent (the “Transfer
Agent”), duly executed by the holder or the holder’s duly authorized attorney, and
transfer Tax stamps or funds therefor, if required under Section 7.9(g), in respect of the
Units to be exchanged, in each case delivered during normal business hours at the offices of
the Company or at the office of the Transfer Agent. Once an Exchange Notice has been
validly delivered to the Company and the LLC, such Exchange Notice shall be binding on the
applicable holder of Units delivering such Exchange Notice, and may not be rescinded or
withdrawn or otherwise amended by such holder of Units. Notwithstanding the foregoing, no
holder of a Unit will be entitled to exchange the Unit if the exchange would be prohibited
under Law.




     (d) On the Exchange Date, following the surrender for exchange of Units in the manner
provided in this Section 7.9 and the payment in cash to the Company of any amount required by Section 7.9(g), the Company will deliver or cause to be delivered,
as the case may be, at the offices of the Company or at the office of the Transfer Agent,
the number of shares of Class A Common Stock or other Equity Securities issuable on the
exchange, issued in the name or names as the holder may direct. On the Exchange Date, all
rights of the holder of the exchanged Units as a Member of the LLC with respect to the
Units will cease, and the person or persons in whose name or names the shares of Class A
Common Stock or other Equity Securities are to be issued will be treated for all purposes
as having become the record holder or holders of the shares of Class A Common Stock or
other Equity Securities.



     (e) The Exchange Rate will be adjusted accordingly if there is:



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     (i) any Recapitalization Event with respect to any class or series of Units
that is not accompanied by an identical Recapitalization Event with respect to the
corresponding class or series of Equity Securities; or




     (ii) any Recapitalization Event with respect to any class or series of Equity
Securities that is not accompanied by an identical Recapitalization Event with
respect to the corresponding class or series of Units. In the event of a
Recapitalization Event as a result of which one class or series of Equity Securities
is converted into another class or series of Equity Securities, then a holder of the
corresponding class or series of Units will be entitled to receive on exchange the
amount of the security that the holder would have received if the exchange of Units
had occurred immediately before the effective date of the Recapitalization Event.
Except as may be required in the immediately preceding sentence, no adjustments in
respect of dividends will be made on the exchange of any Unit, except that if the
Exchange Date with respect to a Unit occurs after the record date for the payment of
a dividend or other distribution on Units but before the date of the payment, then
the registered holder of the Unit at the close of business on the record date will
be entitled to receive the dividend or other distribution payable on the Unit on the
payment date (without duplication of any distribution to which such holder may be
entitled under Section 4.4(a)) notwithstanding the exchange of the Unit or the
default in payment of the dividend or distribution due on the Exchange Date.




     (f) The Company will at all times reserve and keep available out of its authorized but
unissued Equity Securities, solely for the purpose of issuance on exchange of Units
(together with any corresponding Equity Securities), the number of Equity Securities
issuable on the exchange of all the outstanding Units, except that nothing in this
Agreement will be construed to preclude the Company from satisfying its obligations in
respect of the exchange of the Units by delivery of purchased Equity Securities that are
held in the treasury of the Company. The Company covenants that all Equity Securities that
are issued on exchange of Units will, on issue, be validly issued, fully paid and
non-assessable.




     (g) The issuance of Equity Securities on exchange of Units will be made without charge
to the holders of the Units for any stamp or other similar Tax in respect of the issuance, except that if the shares are to be issued in a name other than that
of the holder of the Units exchanged, then the person or persons requesting the issuance
will pay to the Company the amount of any Tax payable in respect of any transfer involved
in the issuance or will establish to the satisfaction of the Company that the Tax has been
paid or is not payable.




     (h) In addition to the exchange right set forth in Section 7.9(a), at the option of a
Unit Holding Company to be exercised by delivery of a written notice in a manner similar to
an Exchange Notice under Section 7.9(c), any holder of 100% of the equity securities of a
Unit Holding Company (a “Unit Holding Company Stockholder”) may cause a Unit
Holding Company to merge with and into a Company Disregarded Subsidiary in a merger in
which the Company Disregarded Subsidiary is the surviving




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entity, in exchange for a number of shares of Class A Common Stock equal to the number
of Class B Common Units (and a corresponding number of shares of Class B Common Stock) held
by such Unit Holding Company (a “Holding Company Exchange”). The Company and its
Affiliates will use Reasonable Best Efforts (x) to effect each Holding Company Exchange in
a manner that is tax-free to the Unit Holding Company and the owner of such Unit Holding
Company for U.S. federal income tax purposes and (y) not to take any action that would
reasonably be expected to cause a Holding Company Exchange not to be treated as a tax-free
transaction for U.S. federal income tax purposes. If a Holding Company Exchange is
effected pursuant to this Section 7.9(h), the Unit Holding Company Stockholder and its
Affiliates will be responsible for, and will indemnify and hold the Company and each of its
Affiliates harmless against, (X) Tax of a Unit Holding Company incurred in such Holding
Company Exchange and (Y) all liabilities of the Unit Holding Company and its Affiliates
(including liabilities for Taxes not described in clause (X)) to the extent such
liabilities are attributable to periods through and including the effective date of the
Holding Company Exchange, except to the extent attributable to the period after the closing
of the Holding Company Exchange, including any liability of the Unit Holding Company
arising by reason of being a member of an affiliated, combined, consolidated or other Tax
group on or prior to the Holding Company Exchange, in each case, in a manner that is
reasonably satisfactory to the Company.



     7.10. Preemptive Rights.




     (a) Each Member (other than the Company, but including Eagle River for purposes of
this Section 7.10) will have the right to purchase its Preemptive Right Pro Rata Share (as
defined below) of New Units (as defined in Section 7.10(d)) that the LLC may from time to
time propose to issue. A Member’s (other than Eagle River’s) “Preemptive Right Pro
Rata Share” will be, at any given time, that proportion, calculated before any proposed
issuance of New Units, that the number of Common Units owned by a Member at that time bears
to the total number of Common Units issued and outstanding at that time. For purposes of
this Section 7.10, Eagle River’s Preemptive Right Pro Rata Share will equal a number of
Units that corresponds to the number of shares of New Securities that Eagle River would
have been entitled to purchase as its Preemptive Right Pro Rata Share under Section 3.5 of
the Equityholders’ Agreement had the New Units been New Securities issued by the Company.




     (b) If the LLC proposes to issue New Units, it will give the Members a written notice
(the “Notice of Issuance”) of its intention to sell New Units, setting forth the
price, the identity of the proposed purchaser(s) (if known) and the principal terms on
which the LLC proposes to issue the New Units. Each Member (other than the Company) will
have 30 days from the date of receipt of any Notice of Issuance (“New Units Notice
Period”) to elect to purchase a number of New Units up to its Preemptive Right Pro Rata
Share of New Units (in each case calculated before the issuance and rounded to the nearest
whole Unit), for the price and on the terms specified in the Notice of Issuance, by giving
written notice to the LLC stating the number of New Units to be purchased.



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     (c) The LLC will have 180 days after the date of the Notice of Issuance to consummate
the sale of any New Units with respect to which the Members’ preemptive rights were not
exercised, at or above the price and on terms not more favorable, in the aggregate, to the
purchasers of the New Units than the terms specified in the initial Notice of Issuance
given in connection with that sale.




     (d) For purposes of this Agreement, “New Units” means any Units of the LLC
issued (or to be issued) after the Effective Date, whether now or hereafter authorized, and
any rights, options, warrants or other rights to purchase or acquire Units, and securities
of any type whatsoever that are, or may become, exchangeable or exercisable for or
convertible into Units. The term “New Units” does not include, and the preemptive
rights described in this Section 7.10 will not be exercisable with respect to, any of the
following:




     (i) Units issued under Sections 7.4(a), 7.5 and 7.6;




     (ii) Units or other securities issued to officers, employees or directors of
the LLC in connection with a person’s employment or director arrangements with the
LLC under any employee benefit plan of the LLC adopted by the Managing Member
including but not limited to any Incentive Plan;




     (iii) Units or other securities issued in connection with any Recapitalization
Event of the LLC approved by the Managing Member;




     (iv) Units or other securities issued in connection with the acquisition of
another business entity or business segment of another entity by the Company or any
Subsidiary of the Company, or in connection with the acquisition of 2.5 GHz Spectrum
by the Company or any Subsidiary of the Company;




     (v) Units issued in connection with the exercise of any right, option or
warrant to acquire Units, or the conversion of any securities into Units, in any
case that (x) were outstanding prior to the Effective Date or (y) were issued after
the Effective Date and were treated as New Units in respect of which preemptive
rights were offered pursuant to this Section 7.10;




     (vi) Units issued under Section 4.3 of the Transaction Agreement;




     (vii) Units or other securities issuable or issued to consultants, vendors,
lessors or others with whom the LLC conducts business (other than the Members and
their respective Affiliates), as long as




     (A) the Units or other securities are issued directly in a transaction
approved by the Company Board, and




     (B) the issuance of Units or other securities is not for financing
purposes;



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     (viii) Units or other securities issued to financial institutions or lessors in
connection with commercial credit arrangements, equipment financing or similar
transactions, as long as the Units or other securities are issued directly in a
transaction approved by the Company Board;




     (ix) Units or other securities issued (other than to any Member or any of its
Affiliates) in transactions involving technology licensing, research or development
activities, the use or acquisition of strategic assets, properties or rights, or the
distribution, manufacture or marketing of the LLC’s products, as long as




     (A) the Unit or other securities are issued directly in a
transaction approved by the Company Board and




     (B) the issuance of Units or other securities is not for
financing purposes,




and




     (x) Units issued under Section 7.7(b) of this Agreement and Section 3.5(c) of
the Equityholders’ Agreement in connection with the exercise of preemptive rights by
certain Equityholders.




     (e) The closing of the purchases of a Member’s Preemptive Right Pro Rata Share of New
Units under this Section 7.10 will take place at the offices of the Company on a date
specified by the exercising Members, which will be within 30 days after the exercise of the
Member’s rights under this Section 7.10, or (if later) within 10 days after the receipt of
all required regulatory approvals. At the closing, the LLC and the Company will deliver,
or cause to be delivered, to the purchasing Member, certificates (if applicable)
representing the New Units to be purchased by the purchasing Member, in the name of the
purchasing Member, against payment of the purchase price therefor, as provided below; and
the purchasing Member will deliver to the LLC and to the Company an amount in cash by wire
transfer in immediately available funds equal to the product of the applicable price per
share determined in the Notice of Issuance multiplied by the number of New Units to be
acquired by the purchasing Member.




     (f) After giving a Notice of Issuance, the LLC may close (prior to the expiration of
the New Units Notice Period) the sale of any portion of the New Units that is not subject
to preemptive rights under this Section 7.10 or as to which any Member has affirmatively
waived its rights under this Section 7.10.




     (g) The rights under this Section 7.10 will terminate with respect to a Member if and
when such Member and its Permitted Transferees and Permitted Designees cease to own, in the
aggregate, a number of Non-Voting Units equal to at least 50% of the Original Units of such
Member. The rights under this Section 7.10 with respect to Eagle River will terminate when
Eagle River ceases to have the right to exercise its preemptive rights under Section 3.5 of
the Equityholders’ Agreement.



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     (h) The Strategic Investors, acting through the Strategic Investor Representative,
will exercise their rights pursuant to this Section 7.10 as a group, and the Strategic
Investor Group will be deemed to be a single “Member” for purposes of calculating its
Preemptive Right Pro Rata Share under Section 7.10(a). Unless the Strategic Investors
otherwise agree (as notified by the Strategic Investor Representative to the Managing
Member and the remaining Members) New Units acquired by the Strategic Investor Group will
be allocated among the Strategic Investors based on their relative Percentage Interests
within the Strategic Investor Group.



     7.11. Permitted Designee.




     (a) Any right of a Member under this Agreement to acquire additional Units may be
exercised, at the option of the Member, by a Permitted Designee of such Member, subject to
the remainder of this Section 7.11 and the limit on the applicable Equityholder Group’s
Maximum Number of Holders under Section 8.1(a). If a Member desires for a Permitted
Designee to acquire Units in lieu of the Member, the Member will notify the Managing Member
in writing. As a condition to such acquisition, the Member will cause the Permitted
Designee to execute and deliver to the Managing Member and each other Member an Assignment
and Assumption Agreement in the form attached as Exhibit D, and upon consummation
of the acquisition of Units, the Permitted Designee will be a Member and will be subject to
all rights and obligations of a Member owning the acquired Units under this Agreement.




     (b) Except as provided in Section 8.12, before any Permitted Designee ceases to
qualify as a Permitted Designee of the relevant Member, it will Transfer full legal and
beneficial ownership of its Units to the relevant Member or, subject to this Section 7.11,
another Permitted Designee of the relevant Member. If such Transfer is not made in
accordance with the immediately preceding sentence, then in addition to all other remedies
available at law or in equity, any shares of Class B Common Stock held by such
non-qualifying Permitted Designee will be immediately redeemed by the Company for their Par
Value per share in accordance with the terms of the Equityholders’ Agreement and the
Charter.



ARTICLE VIII




TRANSFER RESTRICTIONS




     8.1. Member Transfers.




     (a) A Member (including the Managing Member) may Transfer all or any portion of its
Units (either with or without the corresponding shares of Common Stock), and may permit its
Transferees to Transfer all or any portion of the Units Transferred to them (either with or
without the corresponding shares of Common Stock), as long as (and in addition to any other
requirements of the Member under this Agreement with respect to such Transfer):



35









 






     (i) at least ten days prior to consummating a Transfer (whether by the Member
or by its Transferee), the Member (or the applicable Transferee) notifies the
Managing Member in writing,




     (ii) as a condition to consummating the Transfer, any Transferee (other than
(x) a Transferee in an Exchange Transaction, (y) a Permitted Transferee or a
Permitted Designee and (z) as provided in Section 8.8(h), Eagle River) (any such
Transferee, an “Assignee”) executes and delivers to the LLC and the Members
an Assignee Agreement in the form attached as Exhibit E, and




     (iii) the Transfer (whether by the Member or by its Transferee) would not cause
the Initial Units of the applicable Member’s Equityholder Group (as defined in
subsection (b) below) to be held of record by more than that Equityholder Group’s
Maximum Number of Holders (as set forth on Exhibit F) and would not cause
the Initial Units of the applicable Member’s Equityholder Group to be considered to
be held, for purposes of Regulations Section 1.7704-1(h)(1), taking into account the
rules of Regulations Section 1.7704-1(h)(3), by a number of partners for purposes of
Code Section 7704 that is greater than the Maximum Number of Holders of the
applicable Equityholder Group. For purposes of determining the number of holders of
record of an Equityholder Group’s Initial Units, except as provided in the remainder
of this subsection (iii), each Person will be treated as a separate holder,
regardless of whether the Person is an Affiliate of another holder, a Permitted
Transferee of another holder, or otherwise. Notwithstanding the foregoing, another
Person will not be treated as a separate holder of record (solely for determining
the number of holders of record as a result of the Transfer to that Person) as long
as that Person already held Units immediately prior to the applicable Transfer
(“Preexisting Holder”). Any subsequent Transfers by a Preexisting Holder of
the Units Transferred to it in accordance with the immediately preceding sentence
will be treated as subsequent Transfers by the Equityholder Group whose Initial
Units were Transferred to the Preexisting Holder, and any holders that result from
that subsequent Transfer (other than holders that are also Preexisting Holders) will
be treated as additional holders of the Initial Units of that Equityholder Group.
Accordingly, the Preexisting Holder will comply with any Transfer limitations
imposed on the applicable Equityholder Group by this Section 8.1. For purposes of
this subsection (iii), if a Preexisting Holder holds the Initial Units of more than
one Equityholder Group, Units that were received first by the Preexisting Holder
will be deemed to be Transferred first.




     (b) For purposes of this Section 8.1, an “Equityholder Group” means,




     (i) in the case of Sprint,                     ;




     (ii) in the case of Eagle River, Eagle River;




     (iii) in the case of Intel,                     ;



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     (iv) in the case of Comcast,                     ;




     (v) in the case of TWC,                     ;




     (vi) in the case of BHN,                     ; and




     (vii) in the case of the Managing Member, the Managing Member.




     (c) If any of its Units are Transferred in a Transfer that is not permitted under
Section 8.1(a) above, such Transfer will be void ab initio.




     (d) For the avoidance of doubt, nothing in this Section 8.1 will limit




     (i) the right of any holder of Class B Common Units (and corresponding shares
of Class B Common Stock) to exchange all or any portion of its Class B Common Units
(together with the corresponding shares of Class B Common Stock) for shares of Class
A Common Stock pursuant to Section 7.9 and Article 5 of the Charter, or




     (ii) any subsequent Transfer of those shares of Class A Common Stock.




     (e) None of Sprint, the Strategic Investors, Intel or any of their respective
Affiliates will Transfer (other than to a Permitted Transferee pursuant to Section 8.2),
whether directly or indirectly, all or any portion of its Units (or the Equity Securities
that correspond to the Units) to a single person or group (as those terms are defined
below) in a transaction or a series of related transactions that would result in the
Transferee person or group (other than any of Sprint, the Strategic Investors or Intel or
their respective Permitted Transferees or Permitted Designees), together with its or their
Permitted Transferees or Permitted Designees, having an aggregate Percentage Interest
immediately after the proposed Transfer equal to or greater than the Specified Percentage,
unless the following occurs:




     (i) The provisions of Sections 3.3 and 3.6 of the Equityholders’ Agreement have
been complied with in full.




     (ii) As a condition to consummating the Transfer,




     (A) the Transferee makes (or causes another Person to make) a tender
offer to the holders of Class A Common Stock to purchase all shares of Class
A Common Stock at a price per share equal to or greater than the price per
Unit that the Transferee proposes to pay for the Units (including the
corresponding Equity Securities) proposed to be Transferred, and



37









 






     (B) all shares of Class A Common Stock that are properly tendered and
not withdrawn are purchased by the Transferee.




     (iii) If the consideration proposed to be paid for the Units (including the
corresponding Equity Securities) is other than cash, then the same form of
consideration is offered to the holders of Class A Common Stock.




     (iv) The tender offer described in subsection (ii) above is conducted in
compliance with Law, including the rules and regulations under the Exchange Act, and
is not subject to any conditions other than those contained in the agreement
governing the proposed Transfer.




     (v) The agreement governing the proposed Transfer sets forth the obligation
described in this Section 8.1(e) and states that the holders of Class A Common Stock
are intended third party beneficiaries of the provision setting forth such
obligation.




For purposes of this Section 8.1(e), “person” and “group” have the meanings given to
them for purposes of Sections 13(d) and 14(d) of the Exchange Act or any successor
provisions, and the term “group” includes any group acting for the purpose of
acquiring, holding or disposing of securities within the meaning of Rule 13d-5(b)(1)
under the Exchange Act, or any successor provision.




     (f) Notwithstanding any other provision of this Agreement, without the prior written
consent of Members (other than the Managing Member) collectively holding a Percentage
Interest relative to the Percentage Interests of all such Members equal to at least 75%,
the Managing Member may not transfer all or any portion of its Units other than a Transfer
of Units that is part of a merger, consolidation, share or unit exchange, recapitalization,
business combination or other similar transaction involving the LLC, in each case, that
constitutes a Change of Control of the Company and the LLC and that has been approved by
the Company Board and the stockholders of the Company as required by the Equityholders’
Agreement and Law.



     8.2. Permitted Transferees.




     (a) Subject to Section 8.1, a Member may Transfer all or any portion of its Units to a
Permitted Transferee; provided that such Member gives written notice to the LLC of its
intention to make a Transfer to such Transferee, stating the name and address of the
Permitted Transferee, the Member’s relationship to the Permitted Transferee and the type
and amount of Units to be Transferred. The LLC will give prompt notice of the Transfer to
each other Member. As a condition to such Transfer, the Transferor Member will cause the
Permitted Transferee to execute and deliver to the Managing Member and each other Member an
Assignment and Assumption Agreement in the form of Exhibit D, and upon consummation
of the Transfer, such Permitted Transferee will be a Member and will be subject to all
rights and obligations of the Transferor Member under this Agreement.



38









 






     (b) Except as provided in Section 7.9(h) or Section 8.12, before any Permitted
Transferee ceases to qualify as a Permitted Transferee of the relevant Member, such
Permitted Transferee will Transfer full legal and beneficial ownership of the Units to the
relevant Member or, subject to this Article VIII, another Permitted Transferee of the
relevant Member. If such a Transfer is not made in accordance with the immediately
preceding sentence, then in addition to all other remedies available at law or in equity,
any Class B Common Stock held by such non-qualifying Permitted Transferee will be
immediately redeemed by the Company for its Par Value per share in accordance with the
terms of the Equityholders’ Agreement and the Charter.




     (c) Except as provided in Section 8.12, before any Member (if not a Parent), or any
Subsidiary of a Parent that Controls such Member, ceases to be a direct or indirect wholly
owned Subsidiary of its Parent, or, in the case of BHN, less than 100% of the economic and
voting interests in BHN cease to be Controlled by BHN’s Parent, such Member will Transfer
full legal and beneficial ownership of its Units to its Parent or, subject to this Article
VIII, another Permitted Transferee of its Parent. In the event of a breach of the
immediately preceding sentence, then, in addition to all other remedies available at law or
in equity, each share of Class B Common Stock held by such Member will be immediately
redeemed by the Company for its Par Value per share in accordance with the terms of the
Equityholders’ Agreement and the Charter.



     8.3. Further Restrictions.




     (a) Notwithstanding any other provision of this Agreement, in no event may any
Transfer of a Unit be made by any Member, Assignee, Permitted Transferee or Permitted
Designee if:




     (i) the Transfer is made to any Person who lacks the legal right, power or
capacity to own the Unit;




     (ii) the Transfer would require the registration of the Transferred Unit or of
any class or series of Unit under any applicable United States federal or state
securities Laws (including, without limitation, the Securities Act or the Exchange
Act) or other foreign securities Laws or would constitute a non-exempt distribution
under applicable state securities Laws;




     (iii) the Transfer would cause any portion of the assets of the LLC to
constitute assets of any employee benefit plan under the regulations issued by the
U.S. Department of Labor at Section 2510.3-101 of Part 2510 of Chapter XXV, Title 29
of the Code of Federal Regulations, or any successor regulations;




     (iv) the Transfer would cause any portion of the assets of the LLC to become
“plan assets” of any benefit plan investor within the meaning of regulations issued
by the U.S. Department of Labor at Section 2510.3-101 of Part 2510 of Chapter XXV,
Title 29 of the Code of Federal Regulations, or any successor regulations, or to be
regulated under the Employee Retirement Income Security Act of 1974, as amended from
time to time; or



39









 






     (v) to the extent reasonably requested by the Managing Member, the LLC does not
receive the legal and tax opinions and written instruments (including, without
limitation, copies of any instruments of Transfer and the Assignee’s consent to be
bound by this Agreement as an Assignee) that are in a form reasonably satisfactory
to the Managing Member.




     (b) Notwithstanding any other provision of this Agreement, no Member (including the
Managing Member), Assignee, Permitted Transferee or Permitted Designee will Transfer any or
all of its Units, or take (or permit any Affiliate to take) any other action, if the
Transfer or action would cause the LLC to have more than 100 partners for purposes of
Regulations Section 1.7704-1(h)(1), taking into account the rules of Regulations Section
1.7704-1(h)(3), or otherwise could (by itself or in conjunction with other actions)
reasonably be expected to result in the LLC being treated as a “publicly traded
partnership” within the meaning of Code Section 7704 and the Regulations promulgated
thereunder. For purposes of the preceding sentence, each Member (including the Managing
Member), Assignee, Permitted Transferee or Permitted Designee shall both be permitted and
required, as the case may be, to assume that the Initial Units of each other Equityholder
Group are held, for purposes of Regulations Section 1.7704-1(h)(1), taking into account the
rules of Regulations Section 1.7704-1(h)(3), by a number of partners equal to the Maximum
Number of Holders of the applicable Equityholder Group, and shall be required to take into
account any additional information as to the number of partners for purposes of Code
Section 7704 (for example, as to Units issued after the Effective Date) provided to such
Member in writing by the Managing Member. Notwithstanding any other provision of this
Agreement, no such Member, Assignee, Permitted Transferee or Permitted Designee will
Transfer its Units, or take (or permit any Affiliate to take) any other action, to the
extent that such Transfer or action would cause the Initial Units of the applicable
Equityholder Group to be held, for purposes of Regulations Section 1.7704-1(h)(1), taking
into account the rules of Regulations Section 1.7704-1(h)(3), by a number of partners that
is greater than the Maximum Number of Holders of such Equityholder Group. For this
purpose, except to the extent that Code Section 7704 requires otherwise, Section
8.1(a)(iii) (other than the first and last sentences thereof) shall apply, mutatis
mutandis, in determining the number of partners for purposes of Code Section 7704 that hold
Initial Units of an Equityholder Group. To the fullest extent permitted by Law, any
Transfer or action in violation of this Section 8.3(b) will be null and void, ab initio.



     8.4. Rights of Assignees. The Transferee of any permitted Transfer under this
Article VIII (other than (x) a Transfer in an Exchange Transaction, (y) a Transfer to a
Permitted Transferee or a Permitted Designee and (z) as otherwise provided in Section 8.8(h) with
respect to Eagle River) will be an Assignee, and only will receive, to the extent Transferred, the
distributions and allocations of income, gain, loss, deduction, credit or similar item to which the
Member that Transferred its Units would otherwise be entitled, and, unless otherwise required by
Law, the Assignee will not be entitled or enabled to exercise any other rights or powers of a
Member including any information rights that may be available to a Member under this Agreement, the
Equityholders’ Agreement or under the Act.



40









 





     8.5. Admissions, Withdrawals and Removals. Except for Permitted Transferees and
Permitted Designees and as otherwise provided in Section 8.8(h) with respect to Eagle River, no
Person may be admitted to the LLC as an additional Member or substitute Member. No Member will be
removed or entitled to withdraw from being a Member of the LLC except in accordance with Section
7.9 or Section 8.7. The Company may be removed as Managing Member only upon the affirmative vote
of 75% of the outstanding Voting Units. The Managing Member may not Transfer all of its Units or
withdraw from being the Managing Member of the LLC unless a new or substitute Managing Member has
been admitted under this Agreement (and has not previously withdrawn), which new or substitute
Managing Member may be deemed admitted effective simultaneously with the Transfer, and is hereby
authorized to, and will, continue the LLC without dissolution. Except as otherwise provided in
Article IX, no admission, substitution, withdrawal or removal of a Member will cause the
dissolution of the LLC. To the fullest extent permitted by Law, any purported admission,
withdrawal or removal that is not in accordance with this Agreement will be null and void.



     8.6. Void Transfers. Any Transfer or attempted Transfer of Units in violation of any
provision of this Agreement will be void, ab initio.



     8.7. Withdrawal of Certain Members. If a Member ceases to hold any Units, then the
Member will cease to be a Member and to have the power to exercise any rights or powers of a Member
under this Agreement.



     8.8. Right of First Offer.




     (a) Subject to Section 8.1, 8.11 and the remaining provisions of this Section 8.8, if
a Member (for purposes of this Section 8.8, a “Selling Member”) desires to Transfer
(other than as part of an Excluded Transfer) all or any portion of its Units (the Units
proposed to be Transferred by the Selling Member, the “Subject Units”), the Selling
Member will notify each of the remaining Members that then owns (together with the
particular Member’s Permitted Transferees and Permitted Designees) a number of Units equal
to at least 50% of its Original Units (for purposes of this Section 8.8, such remaining
Members and their respective Permitted Transferees and Permitted Designees, the
“Non-Selling Members”) in writing prior to entering into any agreement with respect
to the proposed Transfer of the Subject Units. That notice (the “Interest Notice”)
will set forth the number of Subject Units that the Selling Member desires to Transfer, and
the material terms of a transaction in which the Selling Member is willing to engage,
including a proposed Transfer price, payable in cash.




     (b) Within 30 days of its receipt of the Interest Notice, each of the Non-Selling
Members may notify the Selling Member in writing as to whether it intends to purchase all
or any portion of the Subject Units on the terms and conditions set forth in the Interest
Notice (the “Response Notice”). Any Response Notice from a Non-Selling Member who
wishes to exercise its right to purchase more than the number of Subject Units set forth in
subsection (i) below assuming all Non-Selling Members do not exercise their rights in full
under this Section 8.8 will state the maximum number of
Subject Units that it wishes to purchase. A Response Notice will constitute a binding



41









 







and irrevocable election by the Non-Selling Member delivering such Response Notice to
purchase the portion of the Subject Units specified therein.




     (i) If the Response Notices of the Non-Selling Members present an offer,
collectively, for all but not less than all of the Subject Units, the parties will
consummate the sale of the Subject Units at the time and in the manner set forth in
Sections 8.8(b) and 8.8(c). Unless otherwise agreed by the Non-Selling Members, the
right to purchase the Subject Units will be allocated among the Non-Selling Members
pro rata based on their relative Percentage Interests as of the date of the Interest
Notice (or, if fewer than all of the Non-Selling Members elect to purchase, based on
the relative Percentage Interests (as of the date of the Interest Notice) of the
Non-Selling Members that elect to purchase the Subject Units in accordance with this
Section 8.8). If there are two or more Non-Selling Members that exercise their
option to purchase more than their pro rata share of Subject Units for a total
number of excess Subject Units in excess of the number of available Subject Units,
such excess Subject Units shall be allocated among such Non-Selling Members on a pro
rata basis based on their respective Percentage Interests as of the date of the
Interest Notice. All calculations under this subsection (i) will be made on an
as-converted to Class A Common Stock basis (i.e., each share of Class B Common
Stock, plus one Class B Common Unit, will equal one share of Class A Common Stock in
such calculations).




     (ii) If none of the Non-Selling Members delivers a Response Notice or if the
Response Notices of the Non-Selling Members, collectively, present an offer for less
than all of the Subject Units, the Non-Selling Members will be deemed to have
declined to exercise their rights under this Section 8.8 and, subject to Section
8.1, Section 8.3, Sections 8.8(c) and 8.8(d), and Section 8.9 (if the Selling
Member is the Principal Member), the Selling Member may proceed with the proposed
Transfer of such Subject Units to the proposed Transferee based on the terms and
conditions set forth in the Interest Notice.




     (c) A Selling Member may Transfer Subject Units pursuant to Section 8.8(b)(ii) to a
proposed Transferee (other than a Non-Selling Member) only if:




     (i) the proposed Transferee is not an Affiliate of the Selling Member,




     (ii) the Transfer is consummated on arm’s-length terms at a price not lower,
and on other terms and conditions no more favorable, in the aggregate, to the
Transferee than those last offered by the Non-Selling Members, and




     (iii) the Selling Member enters into a definitive agreement to Transfer all of
the Subject Units within 90 days of obtaining the right to do so in accordance with
Section 8.8(b)(i) or (ii), as applicable, and consummates the Transfer within 180
days after entering into the definitive agreement (which 180-day period will be
extended if the Transfer is subject to regulatory approval until
the expiration of five Business Days after all such approvals have been
received, but in no event later than 270 days after entering into the definitive
agreement).



42









 






If the proposed Transfer does not comply with clauses (i) or (ii) above, or if the
Selling Member fails to enter into a definitive agreement within the 90-day period,
or fails to consummate the Transfer within the 180-day period (as may be extended
pursuant to clause (iii) above), the Selling Member’s right to Transfer the Subject
Units under those clauses will terminate, and the Selling Member will be required to
initiate the process set forth in this Section 8.8 before Transferring all or any
portion of its Units (other than in an Excluded Transfer).




     (d) If a Selling Member Transfers Subject Units to a proposed Transferee (other than a
Non-Selling Member) in accordance with this Section 8.8, the Transfer by the Selling Member
will be subject to the other terms and restrictions of this Agreement.




     (e) The closing of the purchase of any Subject Units by the Non-Selling Members will
take place at the offices of the Company, or at another location mutually agreed by the
parties to the sale, on a date mutually agreed by the parties to the sale that is no later
than the latest of




     (i) the date specified in the Interest Notice as the intended date of the
proposed Transfer, and




     (ii) 45 days after delivery of the applicable Response Notice or if approvals
of any Governmental Authority are required, then five Business Days following the
expiration of whatever period is required to obtain any necessary regulatory
approvals in connection with the sale, but in no event more than 180 days after
delivery of the applicable Response Notice.




     (f) At the closing of the purchase of any Subject Units by the Non-Selling Members,
the Selling Member will deliver




     (i) if the Subject Units are certificated, a certificate or certificates for
the Subject Units to be sold, in each case accompanied by stock powers with
signatures guaranteed and all necessary stock transfer Taxes paid and stamps
affixed, if necessary, or




     (ii) if the Subject Units are uncertificated, proper transfer instructions from
the Selling Member or the Selling Member’s lawfully constituted attorney-in-fact,
accompanied by evidence that all necessary stock transfer Taxes have been paid and
evidence of compliance with appropriate procedures for transferring Units in
uncertificated form, in either case against receipt of the purchase price therefor
by certified or official bank check or by wire transfer of immediately available
funds.




     (g) Notwithstanding the foregoing, the provisions of this Section 8.8 will not apply
to (an “Excluded Transfer”):




     (i) any Transfer of Units that is part of a merger, consolidation, share or
unit exchange, recapitalization, business combination or other similar transaction
involving the LLC, in each case, that constitutes a Change of Control



43









 







of the Company
and the LLC and that has been approved by the Company Board and the stockholders of
the Company as required by the Equityholders’ Agreement and Law,




     (ii) a Spin-Off Transaction; provided, however, that following a Spin-Off
Transaction, the Spin-Off Entity will be subject to each of the obligations and
enjoy each of the rights of the Spinning Entity for all purposes under this
Agreement,




     (iii) a Transfer to a Permitted Transferee,




     (iv) any Exchange Transaction, or




     (v) any Transfer by a Tag-Along Member pursuant to Section 8.9.




     (h) For purposes of this Section 8.8, if the Company does not exercise its right to
acquire any Subject Units pursuant to this Section 8.8, then




     (i) Eagle River will be considered a “Non-Selling Member” as long as Eagle
River owns (together with Eagle River’s Permitted Transferees), at the time of
delivery of a particular Interest Notice, at least 50% of the Eagle River Original
Shares (as that term is defined in the Equityholders’ Agreement), and




     (ii) Eagle River’s Percentage Interest will be deemed to be its Percentage
Interest in the Company (as that term is used in the Equityholders’ Agreement).




If Eagle River exercises its rights under this Section 8.8 and acquires Units in the LLC,
then at that time, if not previously admitted as a Member, Eagle River will be admitted as a
Member of the LLC by the Managing Member in accordance with Section 8.5.




     (i) The Strategic Investors, acting through the Strategic Investor Representative,
will exercise their rights pursuant to this Section 8.8 as a group, and the Strategic
Investor Group will be deemed to be a single “Non-Selling Member” for purposes of
calculating the number of Subject Units which the Strategic Investor Group is entitled to
purchase under Section 8.8(b)(i). Unless the Strategic Investors otherwise agree (as
notified by the Strategic Investor Representative to the Selling Member and the other
Members), Subject Units to be Transferred by or to the Strategic Investor Group (whether as
a Selling Member or a Non-Selling Member) will be allocated among the Strategic Investors
based on their relative Percentage Interests within the Strategic Investor Group.



     8.9. Tag-Along Rights.




     (a) Subject to Sections 8.1, 8.8 and 8.11 and the remaining provisions of this Section
8.9, if the Principal Member proposes to Transfer (other than as part of an Excluded
Transfer described in clauses (ii), (iii), (iv) or (v) of Section 8.8(g)), in one
transaction or a series of related transactions, directly or indirectly, all or any portion
of



44









 







its Units, and such transaction or series of related transactions would result in the
proposed Transferee and its Affiliates (collectively referred to as the “Proposed
Transferee”) having a Percentage Interest (assuming the Transferee would be admitted as
a Member) immediately after the proposed Transfer equal to or greater than the Specified
Percentage, then the Principal Member will promptly notify the other Members (other than
the Company, but including Eagle River, if Eagle River has become a Member in accordance
with this Agreement) (for purposes of this Section 8.9, the “Tag-Along Members”),
in writing at least 30 days before the closing of the proposed Transfer (a “Tag-Along
Notice”) setting forth the number of Units proposed to be Transferred (for purposes of
this Section 8.9, the “Sale Units”), the nature of the proposed Transfer, the
aggregate consideration to be paid for the Sale Units (including the type of consideration
to be paid), the name and address of each Proposed Transferee, the proposed closing date of
the Transfer and any other material information regarding the terms of the proposed
Transfer and the Proposed Transferee.




     (b) With respect to Sale Units, each of the Tag-Along Members will have the right,
exercisable on delivery of written notice to the Principal Member within 30 days after
receipt of the Tag-Along Notice, to irrevocably elect to sell a portion of its Units, on
the same terms and conditions as set forth in the Tag-Along Notice, in lieu of Sale Units.
The number of Units to be substituted by each electing Tag-Along Member will equal the
product of the number of Sale Units, multiplied by a fraction, the numerator of which is
the number of Units owned by such Tag-Along Member and the denominator of which is the
total number of Units owned by the Members at the time the Tag-Along Notice is delivered.




     (c) If none of the Tag-Along Members makes a timely election to exercise its tag-along
rights under Section 8.9(b), the Principal Member may sell all, but not less than all, of
the Sale Units to the Proposed Transferee provided that such Transfer is consummated on
arm’s-length terms at a price not higher, and on other terms and conditions no more
favorable, in the aggregate, to the Principal Member than the terms and conditions set
forth in the Tag-Along Notice. In addition,




     (i) any material change in the terms and conditions contained in the Tag-Along
Notice (that is more favorable to the Principal Member) will constitute a new
proposal to Transfer for purposes of this Section 8.9, and




     (ii) definitive documents for the sale by the Principal Member must be executed
on or prior to the 90th day following the expiration of the Tag-Along Members’
tag-along rights under this Section 8.9 and consummated within 180 days following
the expiration of such tag-along rights (which 180-day period will be extended if
the Transfer is subject to regulatory approval until the expiration of five Business
Days after all such approvals have been received, but in no event later than 270
days following the expiration of such tag-along rights), and if the
sale is not executed within the 90-day period and consummated within the
180-day period (as may be extended for the receipt of applicable regulatory
approvals), the Sale Units will again become subject to the rights of the Tag-Along
Members under this Section 8.9.



45









 






     (d) If any of the Tag-Along Members elects to exercise its tag-along rights under
Section 8.9(b), the number of Sale Units to be Transferred by the Principal Member to the
Proposed Transferee will be reduced by the applicable number of Units to be included in the
Transfer by the applicable Tag-Along Members, and the Transfer to the Proposed Transferee
will otherwise proceed in accordance with the terms of this Section 8.9 and the Tag-Along
Notice.




     (e) The closing of the sale of any Units elected to be sold by the Tag-Along Members
pursuant to this Section 8.9, will take place at the offices of the Company, or at another
location mutually agreed by the parties to the sale, and on a date mutually agreed by the
parties to the sale that is no later than the latest of




     (i) the date specified in the Tag-Along Notice as the intended date of the
proposed Transfer to the Proposed Transferee,




     (ii) 90 days after delivery of the applicable Tag-Along Notice, and




     (iii) five Business Days following the expiration of whatever period is
required to obtain any necessary regulatory approvals in connection with the sale.




     (f) The following will apply to any Transfer of Sale Units (whether by the Principal
Member or by the Tag-Along Members):




     (i) the Transfer by the Principal Member (and any Tag-Along Members, if
applicable) will be subject to the other terms and restrictions of this Agreement,
and




     (ii) any future proposed Transfer of Units other than the Sale Units by the
Principal Member (and any Tag-Along Members, if applicable) will remain subject to
the terms and conditions of this Agreement, including this Article VIII.




     (g) The Strategic Investors, acting through the Strategic Investor Representative,
will exercise their rights pursuant to this Section 8.9 as a group, and the Strategic
Investor Group will be deemed to be a single “Tag-Along Member” for purposes of calculating
the number of Units which the Strategic Investor Group is entitled to sell as a Tag-Along
Member. Unless the Strategic Investors otherwise agree (as notified by the Strategic
Investor Representative to the Principal Member and the other Members), Sale Units to be
Transferred by the Strategic Investor Group (whether as a Principal Member or as a
Tag-Along Member) will be allocated among the Strategic Investors based on their relative
Percentage Interests within the Strategic Investor Group.



     8.10. Transfers to a Restricted Entity. For purposes of this Section 8.10,
“Consenting Member” means, at any time, each of Sprint, Intel and the Strategic Investor
Group if, at the applicable time, such Member together with its Permitted Transferees or Permitted
Designees (or the Strategic Investor Group, as the case may be):



46









 






     (x) owns a number of Units equal, in the aggregate, to at least 50% of its Original
Units, and




     (y) holds an aggregate Percentage Interest of at least 5%.


The Principal Member and its Permitted Transferees and Permitted Designees will not Transfer any of
their Units to:





     (a) any Strategic Investor Restricted Entity without the prior written consent of the
Strategic Investor Representative (acting on behalf of the Strategic Investors), if the
Strategic Investor Group is then a Consenting Member,




     (b) any Intel Restricted Entity without Intel’s prior written consent, if Intel is
then a Consenting Member, or




     (c) any Sprint Restricted Entity without Sprint’ prior written consent, if Sprint is
then a Consenting Member,




in each case, if:




     (x) such Transfer would constitute a Change of Control of the Company or any of
its Subsidiaries, or




     (y) after giving effect to such Transfer, the applicable Restricted Entity
would have a Percentage Interest (assuming the applicable Restricted Entity would be
admitted as a Member) in excess of the Specified Percentage, or would have the
contractual right to acquire Units that would give the Restricted Entity, in the
aggregate, a Percentage Interest (assuming the applicable Restricted Entity would be
admitted as a Member) in excess of the Specified Percentage immediately after the
acquisition of those Units, as applicable.



     8.11. Limitations Prior to the Adjustment Date. Notwithstanding anything in this
Article VIII to the contrary, prior to the Adjustment Date:




     (a) the Members and their Permitted Transferees and Permitted Designees will not, and
will cause their Controlled Affiliates not to, in any manner, directly or indirectly
(through an agent, representative or otherwise), Transfer (other than to a Permitted
Transferee) any Units or exchange any Class B Common Units (together with shares of Class B
Common Stock) for shares of Class A Common Stock;




     (b) none of the Members will, or will permit any of its Affiliates to, in any manner,
directly or indirectly (whether through an agent, representative or otherwise), acquire,
offer to acquire, publicly announce an intention to acquire, or agree to acquire, by
purchase, gift or otherwise, any Units or any direct or indirect interest in any Units
(including any arrangement to provide the economic performance of all or any portion of
such Units (including by means of any option, swap, forward or other contract or
arrangement the value of which is linked in whole or in part to the value of such Units));



47









 






     (c) the LLC shall not take, authorize, commit or agree to take, any of the following
actions (or publicly announce any intention to do so):




     (i) issue, deliver, grant or sell, or authorize or propose the issuance,
delivery, grant or sale of, any Units other than any issuance of securities
described in clause (ii), (iii) or (v) of Section 7.10(d);




     (ii) repurchase, redeem or otherwise acquire any Units, except for any
repurchase or redemption deemed to occur upon any “cashless exercise” in connection
with the issuance of any securities described in clause (ii) or (v) of Section
7.10(d); or




     (iii) declare, set aside for payment or pay any dividends on or make other
distributions (whether in cash, stock or property) in respect of any Units.



     8.12. Holding Company Transfers.




     (a) Notwithstanding anything to the contrary in this Agreement:




     (i) Any Transfer that is permitted under this Article VIII (other than a
Holding Company Exchange under Section 7.9(h)) may, at the option of a Member that
is a Unit Holding Company, be effected as a transfer by the Unit Holding Company
Stockholder of all of its securities in such Unit Holding Company (a “Holding
Company Transfer”).




     (ii) For the avoidance of doubt, (i) prior to effecting any Holding Company
Transfer, the transferor must comply, mutatis mutandis, with the provisions of (x)
Section 8.8 by offering to the Non-Selling Members the opportunity to purchase
directly the Units held by the Unit Holding Company that is the subject of the
proposed Holding Company Transfer (as opposed to the equity securities of the Unit
Holding Company) and (y) Section 8.9, and (ii) any Tag-Along Member may propose that
a Transfer of its Units pursuant to Section 8.9 be effected as a Holding Company
Transfer of the Unit Holding Company holding such Tag-Along Member’s Units, but such
proposal will not be binding upon the transferee, in which case such Tag-Along
Member may Transfer its Units in the Tag-Along Sale. Notwithstanding Section
8.8(c)(ii), the price paid for securities of the Unit Holding Company in a transfer
to a transferee (other than a Non-Selling Member) will be not lower than the product
of (x) the transfer price
proposed to the Non-Selling Members in the Interest Notice (assuming that 100%
of the Unit Holding Company is being transferred) and (y) the number of Subject
Units held by the Unit Holding Company. The purchase price to be received by any
Tag-Along Member pursuant to Section 8.9 in a Holding Company Transfer will equal
the quotient of (x) the aggregate consideration received for the equity securities
of the Unit Holding Company being transferred (assuming that 100% of the Unit
Holding Company is being Transferred) divided by (y) the number of Units held by the
Unit Holding Company.




48












 






     (iii) If a Holding Company Transfer is effected pursuant to this Section 8.12
in connection with a Transfer described in Section 8.8(b)(i) or Section 8.9, the
Unit Holding Company Stockholder and its Affiliates will be responsible for, and
will indemnify and hold the Transferee and each of its Affiliates harmless against,
(x) Tax of a Unit Holding Company incurred in such Holding Company Transfer and (y)
all liabilities of the Unit Holding Company and its Affiliates (including
liabilities for Taxes not described in clause (x)) to the extent such liabilities
are attributable to periods through and including the date of the Holding Company
Transfer (except to the extent attributable to the period after the closing of the
Holding Company Transfer), including any liability of the Unit Holding Company
arising by reason of being a member of an affiliated, combined, consolidated or
other Tax group on or prior to the Holding Company Transfer.



     8.13. Transfers, Assignments of Interest Subject to Required Governmental Notices and/or
Consents. Notwithstanding anything to the contrary herein, any transfer, assignment or other
disposition of interests in the LLC shall be subject to the prior receipt of any required consents
from, or the submission of any required notices to, any Governmental Authorities.



ARTICLE IX




DISSOLUTION, LIQUIDATION AND TERMINATION




     9.1. No Dissolution. The LLC will not be dissolved by the admission of additional
Members in accordance with the terms of this Agreement. The LLC may be dissolved, liquidated and
terminated only under the provisions of this Article IX, and the Members irrevocably waive to the
fullest extent permitted by Law any and all other rights they may have to cause a dissolution of
the LLC or a sale or partition of any or all of the LLC assets.



     9.2. Events Causing Dissolution. Subject to Sections 2.6 and 2.7 of the
Equityholders’ Agreement, the LLC will be dissolved and its affairs will be wound up on the
occurrence of any of the following events (each, a “Dissolution Event”):




     (a) any voluntary or involuntary liquidation, dissolution or winding up of the
Company, other than any dissolution, liquidation or winding up in connection with any
reincorporation of the Company in another jurisdiction;




     (b) the entry of a decree of judicial dissolution under Section 17-802 of the Act;




     (c) at any time there are no Members of the LLC, unless the LLC is continued in
accordance with the Act;




     (d) the Incapacity of the Managing Member or the occurrence of a Disabling Event with
respect to the Managing Member, except that the LLC will not be dissolved or required to be
wound up and no Dissolution Event will occur in connection with any of the events specified
in this Section 9.2(d) if:



49









 






     (i) when the event occurs there is at least one other Managing Member of the
LLC who is authorized to, and elects to, carry on the business of the LLC;




     (ii) all remaining Members consent to or ratify the continuation of the
business of the LLC and the appointment of another Managing Member of the LLC within
90 days following the effective date of the Incapacity (to be effective as of the
date of Incapacity), which consent will be deemed (and if requested each Member will
provide a written consent for ratification) to have been given for all Members if
the holders of more than two-thirds of the Units then outstanding held by Members
other than the Managing Member agree in writing to continue the business of the LLC;
or




     (e) the sale or other disposition of all or substantially all of the assets owned
directly or indirectly by the LLC.



     9.3. Distribution on Dissolution Events. If a Dissolution Event occurs, the LLC will
not be terminated and will continue until the winding up of the affairs of the LLC is complete. On
the winding up of the LLC, the Managing Member, or any other Person designated by the Managing
Member (the “Liquidation Agent”), will take full account of the assets and liabilities of
the LLC and will, unless the Managing Member determines otherwise, liquidate the assets of the LLC
as promptly as is consistent with obtaining the fair value of the assets. The proceeds of any
Dissolution Event will be applied and distributed in the following order:




     (a) first, to satisfy debts and liabilities of the LLC (including any amounts payable
or reimbursable to the Company pursuant to Sections 3.2 and 3.3 and all other indebtedness
to Members and their Affiliates to the extent otherwise permitted by Law) including the
expenses of liquidation (whether by payment or making reasonable provision for payment);




     (b) second, to the Company in redemption and complete liquidation of its Voting Units
that were issued in connection with the issuance of its outstanding shares of Class A
Common Stock and Class B Common Stock, an amount equal to the aggregate Par Value of all
outstanding shares of Class A Common Stock and Class B Common Stock (excluding for this
purpose any shares of Class A Common Stock issued by the Company to fund Other Business
Activities); and




     (c) the balance, if any, to the holders of Common Units in redemption and complete
liquidation of their Common Units, to be distributed among those holders pro rata in
proportion to their respective Common Units.


To the extent feasible, any indebtedness owed to the LLC by a Member will be distributed to that
Member and will be deemed to have a fair market value equal to its principal amount plus accrued
but unpaid interest. It is intended that the allocation provisions of Article V will
produce final Capital Account balances of the Members that would permit liquidating distributions,
if those distributions were made in accordance with final Capital Account balances (instead of
being made in the order of priorities set forth in this Section 9.3) to be made in a manner


50









 






identical to the order of priorities set forth in this Section 9.3. To the extent that the
allocation provisions of Article V would fail to produce the intended final Capital Account
balances, Profits and Losses (including items of gross income or deductions if required to fulfill
the intent of this Section 9.3) will be reallocated among the Members for the Taxable Year of the
liquidation (and, if necessary and to the extent that the reallocation of corresponding Tax items
is permissible under the Code, prior and subsequent Taxable Years) so as to cause the balances in
the Capital Accounts to be in the intended amounts.




     9.4. Time for Liquidation. A reasonable amount of time will be allowed for the
orderly liquidation of the assets of the LLC and the discharge of liabilities to creditors so as to
enable the Liquidation Agent to minimize the losses attendant on the liquidation.



     9.5. Termination. The LLC will terminate when all of the assets of the LLC, after
payment of or due provision for all debts, liabilities and obligations of the LLC, have been
distributed to the holders of Units in the manner provided for in this Article IX, and the
Certificate has been cancelled in the manner required by the Act.



     9.6. Claims of the Members. The Members will look solely to the LLC’s assets for the
return of their Capital Contributions, and if the assets of the LLC remaining after payment of or
due provision for all debts, liabilities and obligations of the LLC are insufficient to return the
Capital Contributions, the Members will have no recourse against the LLC or any other Member
(including the Managing Member) or any other Person. No Member with a negative balance in the
Member’s Capital Account will have any obligation to the LLC or to the other Members or to any
creditor or other Person to restore the negative balance during the existence of the LLC, on
dissolution or termination of the LLC, or otherwise.



     9.7. Survival of Certain Provisions. Notwithstanding anything to the contrary in this
Agreement, the provisions of Sections 8.6, 11.4, 11.6, 11.7, 11.8, 11.12, 11.14, 11.15, 11.16 and
11.17 will survive the termination of the LLC.



ARTICLE X




LIABILITY OF MEMBERS




     10.1. Liability of Members.




     (a) Except as otherwise specifically provided by the Act, no Member will be liable for
any debt obligation or liability of the LLC or of any other Member or have any obligation
to restore any deficit balance in its Capital Account solely by reason of being a Member of
the LLC.




     (b) Notwithstanding any other provision of this Agreement or any duty otherwise
existing at Law or in equity, each Member (including the Managing Member), will, to the
maximum extent permitted by Law, including Section 18-1101(d) of the Act, owe no fiduciary
duties to the LLC, the other Members or any other Person bound by this Agreement as long as
the Members (including the Managing Member) act in accordance with the implied contractual
covenant of good faith and fair dealing. Except as expressly provided in this Agreement,
whenever in this Agreement a Member is



51









 







permitted or required to take any action or to make
a decision, the Member may take the action or make the decision in its sole discretion, and
the Member may consider, and make its determination based on, the interests and factors as
it desires. No Member will have any liability to the LLC or the other Members except as
provided in this Agreement.




     (c) The Members (including without limitation, the Managing Member) acting under this
Agreement will not be liable to the LLC or to any other Member for breach of fiduciary duty
for their good faith reliance on the provisions of this Agreement. The provisions of this
Agreement, to the extent that they expand or restrict or eliminate the duties and
liabilities of any Member (including without limitation, the Managing Member) otherwise
existing at Law or in equity, are agreed by the Members to modify to that extent the other
duties and liabilities of the Members (including without limitation, the Managing Member).




     (d) The Managing Member may consult with legal counsel, accountants and financial or
other advisors and any act or omission suffered or taken by the Managing Member on behalf
of the LLC or in furtherance of the interests of the LLC in good faith in reliance on and
in accordance with the advice of the counsel, accountants or financial or other advisors
will be full justification for that act or omission, and the Managing Member will be fully
protected in acting or omitting to act so long as the counsel or accountants or financial
or other advisors were selected with reasonable care.




     (e) Except as specifically and expressly set forth in




     (i) this Agreement,




     (ii) any other written agreement with the LLC, the Company or any of its
Subsidiaries to which a Member or its Affiliate is a party, or




     (iii) the organizational documents of the Company (including the Charter),


(x) the Members and their respective Affiliates may engage in the same or similar business
activities or lines of business as the LLC, compete against the LLC, do business with any
potential or actual competitor, customer or supplier of the LLC and employ or otherwise engage any officer or employee of the Company, in each case only to the extent
that a Founding Stockholder of the Company is permitted to do so under Section 11.1 of the
Charter and (y) if a Member acquires knowledge of a potential transaction or matter that may
be a corporate opportunity or otherwise of interest to the Member and the LLC, the Member
will have a duty to communicate or present the corporate opportunity to the LLC, only to the
extent that a Founding Stockholder of the Company would have an obligation to present the
corporate opportunity to the Company in accordance with Section 11.1 of the Charter.




52









 








ARTICLE XI




MISCELLANEOUS




     11.1. Parent Guaranty. On the Effective Date, the parties hereto acknowledge that
pursuant to the Equityholders’ Agreement, each Parent has executed and delivered a Guaranty to the
LLC and the other Members.



     11.2. Amendments and Waivers.




     (a) This Agreement (including the Exhibits) may be amended, supplemented, waived or
modified by the written consent of the Managing Member, the Independent Designees on the
Company Board and certain Equityholders in accordance with Sections 2.6 and 2.7 of the
Equityholders’ Agreement, and Members (other than the Managing Member) collectively holding
a Percentage Interest equal to at least 66 2/3%, except that no amendment, supplement,
waiver or modification will materially and adversely affect a Member’s Units without the
written consent of the affected Member. The Managing Member may, without the written
consent of any Member or any other Person, amend, supplement, waive or modify any provision
of this Agreement and execute, swear to, acknowledge, deliver, file and record whatever
documents may be required in connection with the amendment, supplement or waiver, to
reflect:




     (i) any amendment, supplement, waiver or modification that the Managing Member
determines to be required to create, authorize or issue any class or series of
equity interest in the LLC as permitted by, and in accordance with the terms of,
this Agreement and the Equityholders’ Agreement, except that no amendment,
supplement, waiver or modification will alter or change the powers, preferences or
special rights of Units so as to affect them adversely without the written consent
of the affected Member;




     (ii) the admission, substitution or withdrawal of Members in accordance with
this Agreement;




     (iii) a change in the name of the LLC, the location of the principal place of
business of the LLC, the registered agent of the LLC or the registered office of the
LLC;




     (iv) any amendment, supplement, waiver or modification that the Managing Member
determines to be required to comply with Law; or




     (v) a change in the Taxable Year of the LLC.




     (b) Notwithstanding the provisions of subsection (a), the Register will be revised
from time to time by the Managing Member to reflect the admission of a new Member, the
withdrawal or resignation of a Member, and the adjustment of the Units resulting from any
Transfer or other disposition of a Unit, in each case that is made in accordance with the
provisions hereof.



53









 






     (c) No failure or delay by any party in exercising any right, power or privilege
hereunder (other than a failure or delay beyond a period of time specified in this
Agreement) will operate as a waiver of that right, power or privilege, nor will any single
or partial exercise of any right, power or privilege preclude any other or further exercise
of the right, power or privilege, or the exercise of any other right, power or privilege.
The rights and remedies provided in this Agreement will be cumulative and not exclusive of
any rights or remedies provided by Law.




     (d) Except as may be otherwise required by Law in connection with the winding-up,
liquidation, or dissolution of the LLC, each Member irrevocably waives any and all rights
that it may have to maintain an action for judicial accounting or for partition of any of
the LLC’s property.



     11.3. Groups and Thresholds. Whether or not so stated in the relevant provisions of
this Agreement, (i) references to Sprint, Eagle River, Intel or any Strategic Investor shall be
deemed to include their respective Permitted Transferees and Permitted Designees and (ii) all
amounts, thresholds or similar metrics applicable to Sprint, Eagle River, Intel, any Strategic
Investor or the Strategic Investor Group shall be determined or measured (x) without duplication,
by reference to the relevant Person and its Permitted Transferees (excluding, in the case of a
Strategic Investor, any Permitted Transferees of the kind described in clause (ii) of the
definition thereof) and Permitted Designees as a group and (y) taking into account the effect of
any Recapitalization Events.



     11.4. Legend.




     (a) All certificates (if any) representing the Units held by each Member will bear a
legend substantially in the following form:




The securities represented by this certificate are subject to (i) the Amended and
Restated Operating Agreement of the LLC, dated [                    ], 200[   ], and (ii) an
Equityholders’ Agreement dated as of [                    ], 200[   ] (a copy of which is on
file with the Secretary of the LLC). No transfer, sale, assignment, pledge,
hypothecation or other disposition of the securities represented by this certificate
may be made except in accordance with the provisions of the Amended and Restated
Operating Agreement and the Equityholders’ Agreement and (a) under a registration
statement effective under the Securities Act of 1933, as amended, or (b) under an
exemption from registration thereunder. The holder of the securities represented by
this certificate, by acceptance of the securities, agrees to be bound by all of the
provisions of the Amended and Restated Operating Agreement and the Equityholders’
Agreement.



54









 






     (b) (i) On the sale of any Units to a person other than a Permitted Transferee under
an effective registration statement under the Securities Act or under Rule 144 under the
Securities Act or (ii) on and after the termination of this Agreement, the certificates or
book entries representing those Units will be replaced, at the expense of the LLC, with
certificates or book entries not bearing the applicable legends required by this Section
11.4, except that the LLC may condition the replacement of certificates or book entries
under clause (i) on the receipt of an opinion of securities counsel reasonably satisfactory
to the LLC.



     11.5. Notices.




     (a) All notices and other communications required or permitted under this Agreement
will be in writing and will be deemed effectively given:




     (i) when personally delivered to the party to be notified;




     (ii) when sent by confirmed facsimile if sent during normal business hours of
the recipient or, if not, then on the next Business Day, as long as a copy of the
notice is also sent via nationally recognized overnight courier, specifying next day
delivery, with written verification of receipt;




     (iii) five days after having been sent by registered or certified mail, return
receipt requested, postage prepaid; or




     (iv) one Business Day after deposit with a nationally recognized overnight
courier, specifying next day delivery, with written verification of receipt.




     (b) Any notice or other communication that is to be sent by or delivered to the
Strategic Investor Group under this Agreement will be sent by or delivered to the Strategic
Investor Representative. In addition, in order to facilitate the administration of this
Agreement, if any of Eagle River, Sprint or Intel Transfers any of its Units to a Permitted
Transferee, or causes any Units to be issued to a Permitted Designee, such Member will, by
notice to the Company and the other Members, designate a single entity (which must be one
of its Controlled Affiliates) to send and receive all notices and other communications
under this Agreement that are to be sent to or delivered by such Member, and to exercise
all of such Member’s rights hereunder.




     (c) All communications will be sent to the party’s address as set forth below or at
another address that the party has furnished to each other party in writing in accordance
with this provision:




     If to the LLC or the Managing Member, to:


NEWCO CORPORATION

4400 Carillon Point

Kirkland, Washington 98033

Attention: Vice President Corporate Development




55









 







Facsimile No.: (425) 216-7776





     with copies (which will not constitute notice) to:


NEWCO CORPORATION

4400 Carillon Point

Kirkland, Washington 98033

Attention: General Counsel

Facsimile No.: (425) 216-7776



Kirkland & Ellis LLP

Citigroup Center

153 East 53rd Street

New York, New York 10022

Attention: Joshua N. Korff

Fascimile No.: (212) 446-6460



Davis Wright Tremaine LLP

1201 Third Avenue, Suite 2200

Seattle, Washington 98101

Attention: Sarah English Tune

Facsimile No.: (206) 757-7161



Davis Wright Tremaine LLP

1201 Third Avenue, Suite 2200

Seattle, Washington 98101

Attention: James Wreggelsworth

Facsimile No.: (206) 757-7174





     If to Eagle River, to:


Eagle River

2300 Carillon Point

Kirkland, Washington 98033

Attention: Chief Executive Officer

Facsimile No.: (425) 828-8061





     If to Sprint, to:


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 (which will not constitute notice) to:



56









 




Sprint Nextel Corporation

6200 Sprint Parkway

Overland Park, Kansas 66251

Attention: Vice President — Law, 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





     If to the Strategic Investors, to:


Comcast Corporation

One Comcast Center

1701 John F. Kennedy Boulevard

Philadelphia, Pennsylvania 19103

Attention: Chief Financial Officer

Facsimile No.: (215) 286-1240





     with copies (which will not constitute notice) to:


Comcast Corporation

One Comcast Center

1701 John F. Kennedy Boulevard

Philadelphia, Pennsylvania 19103

Attention: General Counsel

Facsimile No.: (215) 286-7794



Davis Polk & Wardwell

450 Lexington Avenue

New York, New York 10017

Attention: David L. Caplan

Facsimile No.: (212) 450-3800





     If to Intel, to:


Intel Corporation

2200 Mission College Blvd., MS RN6-65

Santa Clara, California 95054-1549

Attention: President, Intel Capital

Facsimile No.: (408) 765-8871



Intel Corporation

2200 Mission College Blvd., MS RN6-59




57









 







Santa Clara, California 95054-1549

Attention: Intel Capital Portfolio Manager

Facsimile No.: (408) 765-6038



Intel Corporation

2200 Mission College Blvd., MS RN4-151

Santa Clara, California 95054-1549

Attention: Intel Capital Group General Counsel

Facsimile No.: (408) 653-9098



Intel Corporation

2200 Mission College Blvd., MS RN5-125

Santa Clara, California 95054-1549

Attention: Director, U.S. Tax and Trade

Facsimile No.: (408) 765-1733





     with copies (which will not constitute notice) to:


Gibson, Dunn & Crutcher LLP

1881 Page Mill Road

Palo Alto, California 94304

Attention: Gregory T. Davidson

Facsimile No.: (650) 849-5050



Gibson, Dunn & Crutcher LLP

333 South Grand Avenue

Los Angeles, California 90071-3197

Attention: Paul S. Issler

Facsimile No.: (213) 229-6763




     11.6. Confidentiality.




     (a) Each Member agrees that Confidential Information has been and may in the future be
made available in connection with such Member’s investment in the LLC. Each Member
acknowledges and agrees that it shall not disclose any Confidential Information to any
Person or use any Confidential Information, except that Confidential Information (x) may be
used solely in connection with the Member’s investment in the Company and the LLC and not in connection with any of its other business operations
and (y) may be disclosed:




     (i) to such Member’s Representatives in the normal course of the performance of
their duties,




     (ii) to the extent required by Law, rule or regulation (including complying
with any oral or written questions, interrogatories, requests for information or
documents, subpoena, civil investigative demand or similar process to which a Member
is subject, provided that such Member agrees to give



58









 







the LLC prompt notice of such request(s), to the extent practicable, so that the LLC may seek an appropriate
protective order or similar relief (and the Member shall cooperate with such efforts
by the LLC, and shall in any event make only the minimum disclosure required by such
Law, rule or regulation)),




     (iii) to any Person with whom such Member is contemplating a financing
transaction or to whom such Member is contemplating a Transfer of its Units,
provided that such Transfer would not be in violation of the provisions of this
Agreement and such potential transferee is advised of the confidential nature of
such information and agrees to be bound by a confidentiality agreement consistent
with the provisions hereof,




     (iv) to any regulatory authority or rating agency to which such Member or any
of its Affiliates is subject or with which it has regular dealings, as long as such
authority or agency is advised of the confidential nature of such information,




     (v) to the extent related to the tax treatment and tax structure of the
transactions contemplated by this Agreement (including all materials of any kind,
such as opinions or other tax analyses that the LLC, its Affiliates or its
Representatives have provided to such Member relating to such tax treatment and tax
structure), provided that the foregoing does not constitute an authorization to
disclose the identity of any existing or future party to the transactions
contemplated by this Agreement or their Affiliates or Representatives, or, except to
the extent relating to such tax structure or tax treatment, any specific pricing
terms or commercial or financial information,




     (vi) in the case of the Strategic Investor Representative or any member of the
Strategic Investor Group, to any other member of the Strategic Investor Group, or




     (vii) if the prior written consent of the Company Board shall have been
obtained.




Nothing contained herein shall prevent the use (subject, to the extent possible, to a
protective order) of Confidential Information in connection with the assertion or defense of
any claim by or against the Company, the LLC or any of their respective Subsidiaries or any
Member.




     (b) “Confidential Information” means any information concerning the LLC or any
Persons that are or become its Subsidiaries or the financial condition, business,
operations or prospects of the LLC or any such Persons in the possession of or furnished to
any Member under this Agreement, provided that the term “Confidential Information” does not
include information that (i) is or becomes generally available to the public other than as
a result of a disclosure by a Member or its affiliates, directors, officers, employees,
stockholders, members, partners, agents, counsel, auditors, investment advisers or other
representatives (all such persons being collectively referred to as
“Representatives”) in violation of this Agreement, (ii) was available to such



59









 







Member on a non-confidential basis prior to its disclosure to such Member or its
Representatives by the LLC, (iii) becomes available to such Member on a non-confidential
basis from a source other than the LLC after the disclosure of such information to such
Member or its Representatives by the LLC, which source is (at the time of receipt of the
relevant information) not, to the best of such Member’s knowledge, bound by a
confidentiality agreement with (or other confidentiality obligation to) the LLC or another
Person, (iv) is independently developed by such Member without violating any
confidentiality agreement with, or other obligation of secrecy to, the LLC or (v) is
received by a Member under or in connection with other commercial contracts, agreements or
arrangements with the Company (which information shall be governed by the terms of those
contracts, agreements or arrangements).



     11.7. Strategic Investor Representative.




     (a) Each Strategic Investor hereby acknowledges that the Strategic Investor
Representative is authorized to take all actions that are designated herein to be performed
by the Strategic Investor Group, as a group, and to do or refrain from doing all further
acts and things, and to execute all documents, as the Strategic Investor Representative
deems necessary or appropriate in furtherance of any of the foregoing, including:




     (i) to receive and deliver all notices, communications and deliveries on behalf
of the Strategic Investor Group under this Agreement;




     (ii) to provide consent on behalf of the Strategic Investor Group for any
matter that requires the consent of the Strategic Investor Group under this
Agreement; and




     (iii) to exercise any right or election on behalf of the Strategic Investor
Group under this Agreement.




     (b) The Company, the LLC and each Member (other than the Strategic Investors) may
conclusively and absolutely rely, without inquiry, on any actions of the Strategic Investor
Representative authorized under this Agreement as the acts of the Strategic Investor Group
in all matters referred to in this Agreement.




     (c) Each of the Strategic Investors hereby expressly acknowledges and agrees that the
Strategic Investor Representative is authorized to act on behalf of the Strategic Investor
Group notwithstanding any dispute or disagreement among the Strategic Investors, and that
the Company, the LLC and any Member (other than the Strategic Investors) is entitled to
rely on any and all action by the Strategic Investor Representative specifically authorized
under this Agreement without liability to, or obligation to inquire of, any of the
Strategic Investors. The Strategic Investor Representative may, at any time upon notice to
the Managing Member and the other Members (upon which notice the Managing Member and the
other Members will be entitled to rely), appoint a substitute or replacement Strategic
Investor Representative.



60









 






     (d) Without in any way limiting the rights of the Company, the LLC and the Members
(other than the Strategic Investors), under this Section 11.7 or otherwise, to rely on any
and all action by the Strategic Investor Representative pursuant to this Agreement, each
Strategic Investor expressly acknowledges and agrees that the appointment of the Strategic
Investor Representative pursuant to Section 11.7(a) above, and all of the rights,
obligations, power and authority of the Strategic Investor under this Agreement, are
subject in all respects to the Strategic Investor Agreement.



     11.8. No Joint and Several Liability of the Members. The LLC, the Company and each
other Member acknowledge and agree that under no circumstances will any Member be held jointly or
severally liable for the breach of any provision of this Agreement by any other Member or the
Strategic Investor Representative (it being understood that this Section 11.8 will not otherwise
limit the liability of any Member for its own breaches of this Agreement); provided that, in the
event of any breach of this Agreement by the Strategic Investor Representative (acting in its
capacity as such), each Strategic Investor shall be severally liable for a portion of any
liability, loss, cost, damage or expense (including attorneys’ fees) arising from or in connection
with such breach that is equal to such Strategic Investor’s Percentage Interest divided by the
aggregate Percentage Interest of the Strategic Investor Group.



     11.9. Further Assurances. At any time or from time to time after the Effective Date,
the parties will cooperate with each other as may be reasonably requested, and at the request of
any other party, will execute and deliver any further instruments or documents and, to the fullest
extent permitted by Law, will take all further action as the other party may reasonably request in
order to evidence or effectuate the consummation of the transactions contemplated by this Agreement
and to otherwise carry out the agreements and the intent of the parties under this Agreement.



     11.10. Entire Agreement. Except as otherwise expressly set forth in this Agreement,
this Agreement, together with the other Transaction Documents (and, as among the Strategic
Investors only, the Strategic Investor Agreement), embodies the complete agreement and
understanding among the parties to this Agreement with respect to the subject matter of this
Agreement and supersedes and preempts any prior understandings, agreements or representations by or among the parties, written or oral,
that may have related to the subject matter of this Agreement in any way.



     11.11. Delays or Omissions. No delay or omission to exercise any right, power or
remedy accruing to any party, upon any breach, default or noncompliance by another party under this
Agreement, will impair any right, power or remedy of any non-breaching and non-defaulting party,
nor will it be construed to be a waiver of any breach, default or noncompliance, or any
acquiescence in it, or of or in any similar breach, default or noncompliance later occurring. Any
waiver, permit, consent or approval of any kind or character on the part of any party to this
Agreement of any breach, default or noncompliance under this Agreement or any waiver on that
party’s part of any provisions or conditions of this Agreement, must be in writing and will be
effective only to the extent specifically set forth in that writing and to the extent permitted
under



61









 







this Agreement. No waiver of any default with respect to any provision, condition or
requirement of this Agreement will be deemed to be a continuing waiver in the future or a waiver of
any other provision, condition or requirement hereof. All remedies, either under this Agreement,
by Law, or otherwise afforded to any party, will be cumulative and not alternative.



     11.12. Governing Law; Jurisdiction; Waiver of Jury Trial. This Agreement will be
governed in all respects by the laws of the State of Delaware. No suit, action or proceeding with
respect to this Agreement may be brought in any court or before any similar authority other than in
a court of competent jurisdiction in the State of Delaware, and the parties to this Agreement
submit to the exclusive jurisdiction of those courts for the purpose of a suit, proceeding or
judgment. Each party to this Agreement irrevocably waives any right it may have had to bring an
action in any other court, domestic or foreign, or before any similar domestic or foreign
authority. Each of the parties to this Agreement irrevocably and unconditionally waives trial by
jury in any legal action or proceeding (including any counterclaim) in relation to this Agreement.



     11.13. Severability. When possible, each provision of this Agreement will be
interpreted so as to be effective and valid under Law, but if any provision of this Agreement is
held to be invalid, illegal or unenforceable in any respect under any Law in any jurisdiction, that
invalidity, illegality or unenforceability will not affect any other provision or any other
jurisdiction, but this Agreement will be reformed, construed and enforced in that jurisdiction as
if the invalid, illegal or unenforceable provision had never been contained in this Agreement and
the parties to this Agreement will use their Reasonable Best Efforts to find and employ an
alternative means to achieve the same or substantially the same result as that contemplated by that
provision.



     11.14. Enforcement. Each party to this Agreement acknowledges that money damages
would not be an adequate remedy if any of the covenants or agreements in this Agreement are not
performed in accordance with its terms. If a party seeks an injunction, temporary restraining
order or other equitable relief in any court of competent jurisdiction to enjoin an alleged breach
and enforce specifically the terms and provisions of this Agreement, the other parties will not raise the defense of an adequate
remedy at law.



     11.15. No Recourse. Except as provided in any Guaranty, neither the LLC nor any
Member will, whether by the enforcement of any assessment or by any legal or equitable proceeding,
or by virtue of any Law, seek to hold liable under this Agreement or any documents or instruments
delivered in connection with this Agreement, any current or future stockholder, director, officer,
employee, general or limited partner or member of any Member or of any Affiliate or assignee
thereof. No current or future officer, agent or employee of any Member or any current or future
member of any Member or any current or future stockholder, director, officer, employee, partner or
member of any Member or of any Affiliate or assignee thereof, will have any personal liability
whatsoever for any obligation of any Member under this Agreement or any documents or instruments
delivered in connection with this Agreement for any claim based on, in respect of or by reason of
those obligations or their creation.



62









 





     11.16. No Third Party Beneficiaries. This Agreement is entered into solely for the
benefit of the LLC and the Members, their respective Permitted Transferees, Permitted Designees and
successors and permitted assigns, and no other Person may exercise any right or enforce any
obligation under this Agreement. Without limiting the foregoing, any obligation of the Members to
make Capital Contributions to the LLC under this Agreement is an agreement only among the Members
and no other person or entity, including the LLC, will have any rights to enforce those
obligations.



     11.17. Counterparts; Facsimile Signatures. This Agreement may be executed in any
number of counterparts, each of which will be an original, but all of which together will
constitute one instrument. This Agreement may be executed by facsimile or pdf signature(s).



     11.18. Managing Member Authorization. Each Member, by its execution of this
Agreement, authorizes the Managing Member to make, execute, sign, acknowledge, swear to, record and
file, in each case, on behalf of the LLC:




     (a) the Certificate and all amendments thereto required or permitted by Law or the
provisions of this Agreement;




     (b) all certificates and other instruments deemed advisable by the Managing Member to
carry out the provisions of this Agreement and Law or to permit the LLC to continue as a
limited liability company or other entity where the Members have limited liability in each
jurisdiction where the LLC may be doing business;




     (c) all instruments that the Managing Member deems appropriate to reflect a change or
modification of this Agreement or the LLC in accordance with this Agreement, including,
without limitation, the admission of additional Members or substituted Members under the
provisions of this Agreement;




     (d) all conveyances and other instruments or papers deemed advisable by the Managing
Member to effect the liquidation and termination of the LLC in accordance with this
Agreement; and




     (e) all fictitious or assumed name certificates required or permitted (in light of the
LLC’s activities) to be filed on behalf of the LLC.



[Rest of page intentionally left blank]





63









 








     IN WITNESS WHEREOF, the parties hereto have entered into this Agreement or have caused this
Agreement to be duly executed by their respective authorized officers, in each case as of the date
first above stated.



	 	 	 	 	 
	 	Managing Member:





NEWCO CORPORATION

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	Members:





[SPRINT]

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	[INTEL]

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	[COMCAST]

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 



64









 






	 	 	 	 	 



	 	 	 	 	 
	 	[TIME WARNER CABLE]

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	[BRIGHT HOUSE]

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	[EAGLE RIVER], solely with respect to Sections 

7.10, 7.11 and 8.8

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	Strategic Investor Representative:



[                              ],

as the Strategic Investor Representative

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 




65












 





ANNEX A




Definitions




     Any capitalized terms used in this Agreement and not otherwise defined in this Annex A
will have the meanings assigned to those terms in the Equityholders’ Agreement.




“2.5 GHz Spectrum” means any spectrum in the 2495-2690 MHz band authorized
by the FCC under licenses for BRS or EBS.




     “Act” means the Delaware Limited Liability Company Act, as amended from time to
time (and any corresponding provisions of succeeding Law).




     “Additional Funds” is defined in Section 5.2(b).




     “Adjusted Capital Account Balance” means, with respect to any Member, the
balance in the Member’s Capital Account after giving effect to the following adjustments:
(a) debits to the Capital Account of the items described in Regulations Section
l.704-1(b)(2)(ii)(d)(4-6), and (b) credits to the Capital Account of the Member’s share of
LLC Minimum Gain or Member Nonrecourse Debt Minimum Gain or of any amount which the Member
would be required to restore under this Agreement or otherwise. The foregoing definition of
Adjusted Capital Account Balance is intended to comply with the provisions of Regulations
Section l.704-1(b)(2)(ii)(d) and will be interpreted consistently therewith.




     “Adjusted Initial Capital Account” is defined in Section 5.1.




     “Adjustment Date” has the meaning set forth in the Transaction Agreement.




     “Affiliate” means, with respect to any Person, any other Person directly or
indirectly Controlling or Controlled by or under direct or indirect common Control with that
Person; provided that neither the Company nor any of its Subsidiaries shall be deemed to be
an Affiliate of any Member other than the Company.




     “Alternative Financing” means a Nonrecourse Alternative Financing or a Recourse
Alternative Financing.




     “Agreement” is defined in the preamble.




     “Ancillary Agreements” has the meaning set forth in the Transaction Agreement.




     “Assignee” is defined in Section 8.1(a).




     “Audit Committee” means the Audit Committee of the Company.




     “beneficial owner” or “beneficially own” has the meaning given in Rule
13d-3 under the Exchange Act and a Person’s beneficial ownership of securities of any Person
will be calculated in accordance with the provisions of that Rule, except that for purposes



 









 







of determining beneficial ownership, no Person will be deemed to beneficially own any
security solely as a result of that Person’s execution of this Agreement or the
Equityholders’ Agreement.




     “BHN” is defined in the preamble.




     “Bona Fide Non-Tax Business Need” means, with respect to a Significant BIG
Disposition, that (i) the taxable sale or other taxable disposition of Former Clearwire
Assets or Former Sprint Assets involved with the Significant BIG Disposition will serve a
bona fide business need of the LLC’s Wireless Broadband Business and (ii) neither the
taxable sale or other taxable disposition nor the reinvestment or other use of the proceeds
is significantly motivated by the desire to obtain increased income Tax benefits for the
Members or to impose income Tax costs on Sprint or the Company.




     “BRS” means Broadband Radio Service, a radio service licensed by the FCC under
Part 27 of Title 47 of the Code of Federal Regulations, as amended and interpreted by the
FCC, which can be used to provide fixed and mobile wireless services.




     “Built-In Gain” means, with respect to a Former Clearwire Asset or a Former
Sprint Asset, the excess of the Carrying Value of the property over its adjusted basis to
the LLC for U.S. federal income tax purposes immediately after the actual or deemed
contribution for U.S. federal income tax purposes of such property to the LLC (disregarding
any entities that held such property at the time of such contribution if such entities were
then treated as disregarded entities for U.S. federal income tax purposes).




     “Business Day” means any day that is not a Saturday, a Sunday or other day that
banks are required or authorized by Law to be closed in New York City.




     “Capital Account” means the separate capital account maintained for each Member
in accordance with Section 5.3.




     “Capital Contribution” means, with respect to any Member, the aggregate amount
of cash and cash equivalents and the Carrying Value of any property (other than cash and
cash equivalents) contributed to the LLC under Article V, net of any liabilities
assumed by the LLC in connection with the contribution or to which the contributed property
is subject.




     “Carrying Value” means, with respect to any asset of the LLC, the asset’s
adjusted basis for U.S. federal income tax purposes, except as provided below.




     (a) The Carrying Value of any asset contributed (or deemed contributed under
Regulations Section 1.704-1(b)(1)(iv)) by a Member to the LLC will be the fair market value
of the asset at the date of its contribution as determined in good faith by the Managing
Member, subject to the review procedures set forth in Section 5.11(e). Notwithstanding the
foregoing, the aggregate initial Carrying Value of the Former Sprint Assets and the Former
Clearwire Assets shall equal the Initial Capital Account of Sprint and the Company,
respectively (or, if their Adjusted Initial Capital Accounts differs from their Initial
Capital Accounts, then such Carrying Value shall be adjusted in a manner



A-2









 







consistent with their Adjusted Initial Capital Accounts), increased by liabilities
deemed to have been assumed by the LLC or taken subject to by the LLC (as determined for
federal income tax purposes) in connection with such contributions and deemed contributions.




     (b) The Carrying Values of all assets of the LLC will be adjusted to equal their
respective fair market values as reasonably determined by the Managing Member, in accordance
with the rules set forth in Regulations Section 1.704-1(b)(2)(iv)(f), except as otherwise
provided in this Agreement, as of:




     (i) the date of the acquisition of any additional Units by any new or existing
Member in exchange for more than a de minimis Capital Contribution;




     (ii) the date of the distribution of more than a de minimis amount of assets of
the LLC to a Member in redemption of Units; and




     (iii) any other date (A) permitted or (B) required by Regulations;




except that adjustments under clauses (i), (ii), and (iii)(A) above will be made only if the
Managing Member reasonably determines that the adjustments are necessary or appropriate to
reflect the relative economic interests of the Members. The Carrying Value of any asset of
the LLC distributed to any Member will be adjusted immediately before distribution to equal
its fair market value. If there is an adjustment to the Carrying Value of any asset,




     (A) the amount of the adjustment will be included as gain or loss in computing
book income or loss for purposes of maintaining Capital Accounts under this
Agreement, and




     (B) Carrying Value will thereafter be adjusted by the depreciation,
amortization or cost recovery subsequently taken into account with respect to the
asset for purposes of computing Profits and Losses.




     “Certificate” means the certificate of formation of the LLC.




     “CFO Certificate” is defined in Section 5.11(g).




     “CFO Committee” means a committee composed of the chief financial officers of
the Company and of the Parent of Sprint, and a senior financial officer of a member of the
Strategic Investor Group who is designated by the Strategic Investor Representative.



          “Change of Control” means, with respect to any Person, any of the following events:




     (i) the sale of more than a majority (or in the case of the Company or the LLC, the
Specified Percentage) of the consolidated assets of that Person and its Subsidiaries;



A-3









 






     (ii) any merger, consolidation, share exchange, recapitalization, sale, issuance,
disposition, transfer of capital stock or other transaction, in each case in which any
Person or group (within the meaning of Section 13(d)(3) or 14(d)(2) of the Exchange Act)
(other than, in the case of the Company or the LLC, Sprint, Intel, the Strategic Investors
and their respective Permitted Transferees and Permitted Designees, singly or in a group)
acquires beneficial ownership of more than a majority (or, in the case of the Company or the
LLC, the Specified Percentage) of either




     (A) the then-outstanding shares of that Person’s common stock or equivalent
securities (determined on an as-converted basis), or




     (B) the combined voting power of the then-outstanding voting securities of that
Person entitled to vote generally in the election of directors; or




     (iii) during any period of 24 consecutive months, a majority of the members of the
board of directors or other equivalent governing body of such Person cease to be composed of
individuals (A) who were members of that board or equivalent governing body on the first day
of such period, (B) whose election or nomination to that board or equivalent governing body
was approved by individuals referred to in clause (A) above constituting at the time of such
election or nomination at least a majority of that board or equivalent governing body or (C)
whose election or nomination to that board or other equivalent governing body was approved
by individuals referred to in clauses (A) and (B) above constituting at the time of such
election or nomination at least a majority of that board or equivalent governing body;
provided, however, that, in the case of the Company, a member of the Company Board who
differs from the individual who was a member of the Company Board on the first day of the
applicable period will be deemed to have been a member on the first day of the applicable
period if such member was nominated or otherwise designated by the same Equityholder as
appointed the original member in accordance with Section 2.1 of the Equityholders’
Agreement.




     “Charter” means the Restated Certificate of Incorporation of the Company, as in
effect on the Effective Date and as it may be amended, supplemented or otherwise modified
from time to time in accordance with its terms and the terms of the Equityholders’
Agreement.




     “Class A Common Stock” means Class A common stock, par value $0.0001 per share,
of the Company, which is entitled to voting and other rights described in the Charter.




     “Class A Common Unit” means a Non-Voting Unit issued under Section 5.1, 7.1,
7.3, 7.4, 7.5, 7.6 or 7.7, designated a Class A Common Unit, with the rights, powers and
duties set forth in this Agreement.




     “Class B Common Stock” means Class B common stock, par value $0.0001 per share,
of the Company, which is entitled to voting and other rights described in the Charter.



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     “Class B Common Unit” means a Non-Voting Unit issued under Section 5.1, 7.1,
7.3, 7.6, or 7.7, designated a Class B Common Unit, with the rights, powers and duties set
forth in this Agreement.




     “Clearwire” is defined in the recitals.




     “Clearwire Sub LLC” is defined in the recitals.




     “Clearwire Pre-Closing Indebtedness” means the indebtedness owed by Clearwire
immediately prior to the Merger.




     “Closing” has the meaning set forth in the Transaction Agreement.




     “Code” means the Internal Revenue Code of 1986, as amended from time to time.




     “Comcast” is defined in the preamble.




     “Common Stock” means any and all classes of the Company’s common stock as
authorized pursuant to the Charter, including the Class A Common Stock and the Class B
Common Stock.




     “Common Unit” means a Class A Common Unit or a Class B Common Unit.




     “Common Unit Exchange Rate” is defined in Section 7.9(a).




     “Company” is defined in the preamble.




     “Company Board” means the board of directors of the Company.




     “Company Disregarded Subsidiary” means a Subsidiary of the Company that is
disregarded as separate and apart from the Company for U.S. federal income tax purposes.




     “Company Tax Representative” is defined in Section 5.11(b).




     “Conditional Exchange” is defined in Section 7.9(a).




     “Confidential Information” is defined in Section 11.6(b).




     “Consenting Member” is defined in Section 8.10.




     “Control” (including the correlative terms “Controlling”,
“Controlled by” and “under common Control with”) means the possession,
directly or indirectly, of the power to direct or cause the direction of the management and
policies of a Person, whether through the ownership of voting securities, by contract or
otherwise.




     “Controlled Affiliate” of a Member means



A-5









 






     (i) each direct or indirect Subsidiary of that Member and of that Member’s Parent,




     (ii) any Affiliate of the Member that the Member (or its Parent) can directly or
indirectly unilaterally cause to take or refrain from taking any of the actions required,
prohibited or otherwise restricted by this Agreement; and




     (iii) such Member’s Parent.




          provided that neither the Company nor any of it Subsidiaries will be deemed to be a
Controlled Affiliate of any Member.




     “Covered Tax Liability” is defined in Section 4.4(a).




     “Disabling Event” means the Managing Member ceasing to be the Managing Member
of the LLC under Section 18-402 of the Act.




     “Dissolution Event” is defined in Section 9.2.




     “Eagle River” is defined in the preamble.




     “EBS” means Educational Broadband Service, a fixed or mobile service, the
licensees of which are educational institutions or non-profit educational organizations, and
intended primarily for video, data, or voice transmissions of instructional, cultural, and
other types of educational material licensed by the FCC under Part 27 of Title 47 of the
Code of Federal Regulations, as amended and interpreted by the FCC.




     “Effective Date” is defined in the preamble.




     “Equity Securities” means any and all shares of common stock of the Company and
any securities issued in respect thereof, including




     (i) Common Stock,




     (ii) securities of the Company convertible into, or exchangeable for, shares of
Common Stock, and options, warrants or other rights to acquire shares of Common
Stock; and




     (iii) any securities issued in substitution for the securities described in
clauses (i) and (ii) above in connection with any Recapitalization Event.




     “Equityholder” is defined in the recitals to the Equityholders’ Agreement.




     “Equityholder Group” is defined in Section 8.1(b).




     “Equityholders’ Agreement” means the Equityholders’ Agreement entered into by
and among the Company, Sprint, Eagle River, Intel and the Strategic Investors, dated as of
                    , as amended from time to time.



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     “Exchange Act” means the Securities Exchange Act of 1934, as amended, and the
rules and regulations promulgated thereunder.




     “Exchange Date” is defined in Section 7.9(c).




     “Exchange Notice” is defined in Section 7.9(c).




     “Exchange Rate” is defined in Section 7.9(a).




     “Exchange Transaction” means a transaction described in Section 7.9(a) or
Section 7.9(h).




     “Excluded Amounts” is defined in Section 3.2.




     “Excluded Transfer” is defined in Section 8.8(g).




     “Exercisable Rights” is defined in Section 7.6.




     “FCC” means the Federal Communications Commission.




     “Federal Tax Payment” is defined in Section 4.4(a).




     “Filing Date” means the date on which the Certificate was filed with the
Delaware Secretary of State.




     “Former Clearwire Asset” means any asset acquired by Clearwire Sub LLC in the
Merger that, on execution of this Agreement, was deemed contributed to the LLC by the
Company under the Transaction Agreement, and will also include any substituted basis
property acquired in exchange for such asset in a nonrecognition transaction covered by
Regulations Section 1.704-3(a)(8)(i).




     “Former Sprint Asset” means any asset acquired by the LLC from Sprint (through
the Contribution by Sprint to the Company of all of the membership interests in Sprint LLC)
under the Transaction Agreement, and will also include any substituted basis property
acquired in exchange for such asset in a nonrecognition transaction covered by Regulations
Section 1.704-3(a)(8)(i).




     “GAAP” means generally accepted accounting principles, as in effect in the
United States of America from time to time.




     “Google” is defined in the recitals.




     “Governmental Authority” means any (i) nation, state, county, city, town,
village, district or other jurisdiction of any nature; (ii) federal, state, local,
municipal, or other government; (iii) governmental or quasi-governmental authority of any
nature; or (iv) body exercising, or entitled to exercise, any administrative, executive,
judicial, legislative, police, regulatory or Taxing power or authority of any nature.



A-7









 






     “Guaranty” means the Parent Agreement attached to the Equityholders’ Agreement
as Exhibit E.




     “Hedging Transactions” means engaging in short sales, zero cost collars, equity
swaps, prepaid variable forward contracts, or the purchase and sale of puts and calls or
other derivative securities, so long as (i) the applicable Equityholder retains beneficial
ownership of the Equity Securities underlying such Hedging Transactions within the meaning
of Rule 13d-3 of the Exchange Act and (ii) such Hedging Transactions are not permitted to be
settled in securities, and are settled solely in cash.




     “Holding Company Exchange” is defined in Section 7.9(h).




     “Holding Company Transfer” is defined in Section 8.12(a).




     “Incapacity” means, with respect to a Managing Member, the dissolution and
liquidation of that Person.




     “Incentive Plan” means any equity incentive or similar plan or agreement under
which the Company may issue shares of Class A Common Stock or other Equity Securities to
existing and former directors, officers, employees and other Persons providing services to
the Company and its Subsidiaries from time to time, except to the extent any such
arrangement is attributable to Other Business Activities.




     “Indemnified Litigation” is defined in Section 13.1(e) of the Transaction
Agreement.




     “Independent Designee” is defined in Section 2.1(a) of the Equityholders’
Agreement.




     “Initial Capital Account” is defined in Section 5.1.




     “Initial Units” means, with respect to an Equityholder Group, the Units
acquired by that Equityholder Group on the Effective Date in connection with the
transactions contemplated by the Transaction Agreement, subject to adjustment (i) as set
forth in Section 4.3 of the Transaction Agreement and (ii) for Recapitalization Events.




     “Interest Notice” is defined in Section 8.8(a).




     “Investor Unit Holding Company” means any entity (other than the Company or any
of its Subsidiaries) that (i) is taxable as a corporation for U.S. federal income tax
purposes, (ii) holds no material assets other than an equal number of Class B Common Units
and shares of Class B Common Stock, (iii) at all times since its existence has held no
material assets other than assets transferred to or from the LLC (and earnings thereon) and
an equal number of (A) Class B Common Units and (B) either (1) shares of Class B Common
Stock or (2) Voting Units, and (iv) has conducted no business or other activities other than
those related to its ownership of such Class B Common Units and Class B Common Stock.



A-8









 






     “Intel” is defined in the preamble.




     “Intel Original Units” means the number of Units acquired by Intel on the
Effective Date in connection with the transactions contemplated by the Transaction
Agreement, subject to adjustment (i) as set forth in Section 4.3 of the Transaction
Agreement and (ii) for Recapitalization Events.




     “Intel Restricted Entity” means any of the following (including any Controlled
Affiliate of the following and any successor to any of the following or any of their
respective Controlled Affiliates): Vodafone Group, NTT DoCoMo, Inc., AT&T Inc., Verizon
Communications Inc. and Verizon Wireless.




     “Law” means any applicable foreign or domestic, federal, state or local,
statute, ordinance, rule, regulation, code, license, permit, authorization, approval,
consent, order, judgment, decree, injunction or requirement of any Governmental Authority or
any arbitration tribunal.




     “Liquidation Agent” is defined in Section 9.3.




     “LLC” is defined in the preamble.




     “LLC Minimum Gain” has the meaning given to the term “partnership minimum gain”
in Regulations Sections 1.704-2(b)(2) and 1.704-2(d).




     “Lock-up Period” is defined in Section 7.9(a).




     “Managing Member” means the Company or any successor Managing Member admitted
to the LLC in accordance with the terms of this Agreement, in its capacity as Managing
Member of the LLC.




     “Member” means, at any time, each person listed as a Member (including the
Managing Member) on the books and records of the LLC, in each case for so long as he, she or
it remains a Member as provided under this Agreement; provided that each Assignee shall be
deemed to be a “Member” for all purposes of the Designated Provisions (defined below),
including to the extent that the defined term “Member” is used in another defined term
(e.g., “Percentage Interest”) that appears in any of the Designated Provisions. As used in
this definition, “Designated Provisions” means the following provisions of this
Agreement: Article IV; Article V (other than Section 5.2(e)(ii), the last two paragraphs of
Section 5.2(e) and except to the extent required by Law, Section 5.11); Section 7.5(e);
Section 7.5(f) and Section 9.3.




     “Member Nonrecourse Debt Minimum Gain” means “partner nonrecourse debt minimum
gain” as defined in Regulations Section 1.704-2(i)(2).




     “Member Nonrecourse Deductions” has the meaning ascribed to the term “partner
nonrecourse deductions” in Regulations Section 1.704-2(i)(2).




     “Merger” is defined in the recitals.



A-9









 






     “NASDAQ” means The NASDAQ Stock Market, LLC or other stock exchange or
securities market on which the Common Stock is at any time listed or quoted.




     “Neutral Accountants” means the accounting firm designated by unanimous
agreement of the Company, Sprint and the Strategic Investor Representative.




     “New Units” is defined in Section 7.10(d).




     “New Units Notice Period” is defined in Section 7.10(b).




     “Nonrecourse Alternative Financing” is defined in Section 5.2(e).




     “Nonrecourse Deductions” is defined in Regulations Section 1.704-2(b). The
amount of Nonrecourse Deductions of the LLC for a Taxable Year equals the net increase, if
any, in the amount of LLC Minimum Gain of the LLC during that Taxable Year, determined
according to the provisions of Regulations Section 1.704-2(c).




     “Non-Selling Member” is defined in Section 8.8(a).




     “Non-Voting Units” are Units that have no right to vote on any matter reserved
for the Members’ approval, consent or consideration.




     “Notice of Issuance” is defined in Section 7.10(b).




     “Original Operating Agreement” is defined in the preamble.




     “Original Units” means, as applicable, any or all of the Sprint Original Units,
the Strategic Investor Original Units or the Intel Original Units.




     “Other Business Activities” means business activities of the Company that are
(a) approved by the Company Board in accordance with Section 2.6(b)(iii) of the
Equityholders’ Agreement and (b) not conducted by or through the LLC or its Subsidiaries.




     “Par Value” means, with respect to shares of Class A Common Stock and Class B
Common Stock, $0.0001 per share, as adjusted for Recapitalization Events.




     “Parent” means, with respect to Sprint, [                    ]; with respect to Intel,
[                    ]; with respect to Strategic Investor, [                    ]; with respect to TWC, [                    ];
and with respect to BHN, Advance/Newhouse Partnership and, except for purposes of Section
11.1, Bright House Networks, LLC; and, in each case, any successor thereto; provided that if
any Equityholder effects a Spin-Off Transaction, following such Spin-Off Transaction the
Parent of the Person owning the Equity Securities and Units that have been spun off will be
deemed to be the Spin-Off Entity.




     “Partially Adjusted Capital Account Balance” means, with respect to any Member,
the balance in the Member’s Capital Account after crediting the Capital Account of such
Member with its share of LLC Minimum Gain, Member Nonrecourse



A-10









 







Debt Minimum Gain and any amount which the Member would be required to restore under
this Agreement or otherwise.




     “Partnership Subsidiary” means any entity taxable as a partnership for U.S.
federal income tax purposes




     (i) in which the LLC holds an ownership interest and




     (ii) that is considered an Affiliate of the LLC.




     “Percentage Interest” means, with respect to any Member at a specified time,
the quotient obtained by dividing the number of Non-Voting Units owned by that Member at
such time by the number of Non-Voting Units owned by all Members at such time.




     “Permitted Designee” means, with respect to any Member a direct or indirect
wholly owned Subsidiary of the Parent of such Member.




     “Permitted Transferee” means, (i) with respect to any Member, the Parent of
such Member or a direct or indirect wholly owned Subsidiary of the Parent of such Member,
(ii) in the case of any Member that is a member of the Strategic Investor Group, another
member of the Strategic Investor Group and (iii) in the case of Eagle River, any of the
members of Eagle River. Notwithstanding the foregoing, a Permitted Transferee of the
Spinning Entity or any of its direct or indirect wholly owned Subsidiaries will not cease to
qualify as a Permitted Transferee as a result of a Spin-Off Transaction for so long as it
remains a direct or indirect wholly-owned Subsidiary of the Spin-Off Entity.




     “Person” means any individual, corporation, limited liability company, limited
or general partnership, joint venture, association, joint-stock company, trust, estate,
unincorporated organization, government or any agency or political subdivisions thereof.




     “Potential Distributee” is defined in Section 4.4(a).




     “Preemptive Right Pro Rata Share” is defined in Section 7.10(a).




     “Preexisting Holder” is defined in Section 8.1(a).




     “Principal Member” means, at any given time, whichever of Sprint, the Strategic
Investor Group or Intel holds, together with its Permitted Transferees and Permitted
Designees, the largest Percentage Interest; provided that in no event shall any Member be
deemed the Principal Member if it (together with its Permitted Transferees and Permitted
Designees) holds a Percentage Interest of less than 26%.




     “Profits” and “Losses” means, for each Taxable Year or other period, an
amount equal to the LLC’s taxable income or loss for that year or period, determined in
accordance with Code Section 703(a) and for this purpose, all items of income, gain, loss or
deduction required to be stated separately under Code Section 703(a)(1) will be included in
taxable income or loss, with the following adjustments:



A-11









 






     (iv) any income of the LLC that is exempt from U.S. federal income taxation and
not otherwise taken into account in computing Profits and Losses under this
definition will be added;




     (v) any items of expenditure of the LLC described in Code Section 705(a)(2)(B)
or items of expenditure treated as Code Section 705(a)(2)(B) expenditures under
Regulations Section 1.704-1(b)(2)(iv)(i), and not otherwise taken into account in
computing Profits or Losses under this definition, will be subtracted;




     (vi) if the Carrying Value of any property is adjusted under clause (b)(i),
(b)(ii), or (b)(iii) of that definition, the amount of the adjustment will be taken
into account as gain or loss from the disposition of the property for purposes of
computing Profits or Losses;




     (vii) gain or loss resulting from any disposition of property with respect to
which gain or loss is recognized for U.S. federal income tax purposes will be
computed by reference to the Carrying Value of the property disposed of,
notwithstanding that the adjusted Tax basis of the property differs from its
Carrying Value;




     (viii) to the extent an adjustment to the adjusted Tax basis of any LLC asset
under Code Section 734(b) or Code Section 743(b) is required under Regulations
Section 1.704-1(b)(2)(iv)(m)(4) to be taken into account in determining Capital
Accounts as a result of a distribution other than in liquidation of a Member’s
interest in the LLC, the amount of the adjustment will be treated as an item of gain
(if the adjustment increases the basis of the asset) or loss (if the adjustment
decreases the basis of the asset) from the disposition of the asset and will be
taken into account for purposes of computing Profits or Losses; and




     (ix) if the Carrying Value of any asset differs from its adjusted Tax basis for
U.S. federal income tax purposes, the amount of depreciation, amortization or cost
recovery deductions with respect to that asset for purposes of determining Profits
and Losses will be an amount that bears the same ratio to the Carrying Value as the
U.S. federal income Tax depreciation, amortization or other cost recovery deductions
bears to the adjusted Tax basis (except that if the U.S. federal income Tax
depreciation, amortization or other cost recovery deduction is zero, the Managing
Member may use any reasonable method for purposes of determining depreciation,
amortization or other cost recovery deductions in calculating Profits and Losses).




     Notwithstanding any other provision of this definition, any items that are specially
allocated under Sections 5.4(b), 5.5 and 5.6 will not be taken into account in computing
Profits or Losses.




     “Proposed Transferee” is defined in Section 8.9(a).



A-12









 






     “Reasonable Best Efforts” means the efforts that a prudent Person desirous of
achieving a result would use in similar circumstances to achieve that result as
expeditiously and as reasonably as possible.




     “Recapitalization Event” means a split, reverse split, combination,
reclassification, recapitalization, dividend, in each case of stock or Units, or similar
transaction.




     “Recourse Alternative Financing” is defined in Section 5.2(e).




     “Register” is defined in Section 5.1.




     “Regulations” means the Income Tax Regulations, including Temporary
Regulations, promulgated under the Code, as the Regulations may be amended (including
corresponding provisions of succeeding regulations).




     “Regulatory Allocations” is defined in Section 5.6.




     “Representatives” is defined in Section 11.6(b).




     “Response Notice” is defined in Section 8.8(b).




     “Restricted Entity” means, collectively, the Intel Restricted Entities, the
Strategic Investor Restricted Entities and the Sprint Restricted Entities.




     “Reverse 704(c) Layer” is defined in Section 5.8(b).




     “Sale Units” is defined in Section 8.9(a).




     “Securities Act” means the Securities Act of 1933, as amended, and the rules
and regulations promulgated thereunder.




     “Selling Member” is defined in Section 8.8(a).




     “Significant BIG Disposition” is defined in Section 5.11(g).




     “Specified Financing” is defined in Section 5.2(e).




     “Specified Percentage” means a percentage equal to 50% of the Percentage
Interest of Sprint as of the Adjustment Date.




     “Spinning Entity” is defined in the definition of “Spin-Off Transaction.”




     “Spin-Off Entity” is defined in the definition of “Spin-Off Transaction.”




     “Spin-Off Transaction” means any pro rata transfer by a Parent (such Parent, a
“Spinning Entity”) to its stockholders in a spin-off or similar transaction of all
of the capital stock of a Permitted Transferee of such Spinning Entity owning directly or
indirectly all of the Equity Securities and Units beneficially owned by such Spinning



A-13









 







Entity and its Affiliates (the “Spin-Off Entity”) that qualifies as a tax-free
spin-off under Section 355(c) of the Code; provided that in order to be treated as a
Spin-Off Transaction the Spin-Off Entity must,




     (a) if the Parent of Sprint is the Spinning Entity, also own directly or indirectly all
or substantially all of the wireless, voice and data services business conducted by Sprint
and its Controlled Affiliates using CDMA technology over 1.9 GHz PCS spectrum (or successor
or operational or functional equivalent),




     (b) if the Parent of Comcast, TWC or BHN is the Spinning Entity, also own directly or
indirectly all or substantially all of its and its Controlled Affiliates’ cable division or
business (or successor or operational or functional equivalent), or




     (c) if the Parent of Intel is the Spinning Entity, also own directly or indirectly all
or substantially all of the business comprising the mobility group of Intel and its
Controlled Affiliates as of the date of the Transaction Agreement (or successor or
operational or functional equivalent).




     “Sprint” is defined in the preamble.




     “Sprint Gain Transaction” is defined in Section 4.4(b).




     “Sprint LLC” is defined in the recitals.




     “Sprint Original Units” means the number of Units acquired by Sprint on the
Effective Date in connection with the transactions contemplated by the Transaction
Agreement, subject to adjustment for Recapitalization Events.




     “Sprint Pre-Closing Financing” is defined in Section 1.2 of the Transaction
Agreement.




     “Sprint Remedial Assets” is defined in Section 5.8(a).




     “Sprint Restricted Entity” means any of the following (including any Controlled
Affiliate of the following and any successor to any of the following or any of their
Controlled Affiliates): AT&T Inc., Verizon Communications Inc., and Verizon Wireless.




     “Sprint Tax Loan” is defined in Section 4.4(b).




     “Sprint Traditional Assets” is defined in Section 5.8(a).




     “Sprint Unit Holding Company” means any entity (other than the Company or any
of its Subsidiaries) that (i) is taxable as a corporation for U.S. federal income tax
purposes, (ii) holds no material assets other than an equal number of Class B Common Units
and shares of Class B Common Stock, (iii) at all times since its existence has held no
material assets other than interests in Sprint, assets transferred to or from the LLC (and
earnings thereon), and an equal number of Class B Common Units and shares of Class B Common
Stock and (iv) has conducted no business or other activities other than



A-14









 







those related to its ownership of such Class B Common Units and shares of Class B
Common Stock and interests in Sprint.




     “State Tax Payment” is defined in Section 4.4(a).




     “Strategic Investor Agreement” means that certain Strategic Investor Agreement
entered into among the Strategic Investors as of the date hereof, as amended from time to
time.




     “Strategic Investor Group” means, collectively, (i) each Strategic Investor and
(ii) each Permitted Transferee and Permitted Designee of a Strategic Investor.




     “Strategic Investor Original Units” means the number of Units acquired by the
Strategic Investor Group on the Effective Date in connection with the transactions
contemplated by the Transaction Agreement, subject to adjustment (i) as set forth in Section
4.3 of the Transaction Agreement and (ii) for Recapitalization Events.




     “Strategic Investor Representative” means                                         , who was appointed by
the Strategic Investor Group pursuant to the Strategic Investor Agreement to take all
actions designated herein to be performed by the Strategic Investor Group, as a group, in
accordance with the terms set forth in the Strategic Investor Agreement.




     “Strategic Investor Restricted Entity” means any of the following (including
any Controlled Affiliate of the following and any successor to any of the following or any
of their Controlled Affiliates): AT&T Inc., Verizon Communications Inc., Verizon Wireless,
DirectTV, Inc., Echostar Communications Corporation and Microsoft Corporation.




     “Strategic Investors” is defined in the preamble.




     “Subsidiary” means, with respect to any entity,




     (i) any corporation of which a majority of the securities entitled to vote generally in
the election of directors thereof, at the time as of which any determination is being made,
are owned by such entity, either directly or indirectly, and




     (ii) any joint venture, general or limited partnership, limited liability company or
other legal entity in which such entity is the record or beneficial owner, directly or
indirectly, of a majority of the voting interests or the general partner or managing member.




     “Subject Units” is defined in Section 8.8(a).




     “Tag-Along Members” is defined in Section 8.9(a).




     “Tag-Along Notice” is defined in Section 8.9(a).




     “Tax Matters Member” is defined in Section 5.11(a).



A-15









 






     “Tax” or “Taxes” means any federal, state, local, or foreign taxes,
assessment, duties, fees, levies, imposts, deductions, or withholdings, including income,
gross receipts, ad valorem, value added, excise, real or personal property, asset, sales,
use, license, payroll, transaction, capital, net worth, franchise taxes, estimated,
withholding, employment, social security, workers compensation, environmental, utility,
severance, production, unemployment compensation, occupation, premium, windfall profits,
transfer, gains, or other tax or governmental charge of any nature whatsoever, imposed by
any taxing authority of any country, and any liabilities with respect thereto, including any
penalties, additions to tax, fines or interest thereon and includes any liability for Taxes
of another person by contract, as a transferee or successor, under Regulations Section
1.1502-6 or analogous state, local or foreign Law provision or otherwise.




     “Taxable Year” means the calendar year, or such other year as may be required
under Code Section 706(d).




     “Transaction Agreement” is defined in the recitals.




     “Transaction Documents” means this Agreement, the Transaction Agreement, the
Equityholders’ Agreement, the Registration Rights Agreement, the Guaranty and the Ancillary
Agreements.




     “Transfer” (including the terms “Transferring” and
“Transferred”) means, directly or indirectly, in one transaction or a series of
related transactions, to sell, transfer, assign, or similarly dispose of, either voluntarily
or involuntarily, or to enter into any contract, option or other arrangement or
understanding with respect to the sale, transfer, assignment, or similar disposition of, any
Units beneficially owned by a Person or any interest in any Units beneficially owned by a
Person (including any arrangement to provide another Person the economic performance of all
or any portion of such Units (including by means of any option, swap, forward or other
contract or arrangement the value of which is linked in whole or in part to the value of
such Units)); provided that a Transfer will not include (i) any Hedging Transaction or (ii)
any pledge, encumbrance or hypothecation of any Units incurred or effected in connection
with a financing transaction unless and until such Units are Transferred as a result of a
foreclosure or similar action, so long as the following conditions are satisfied: (x) in
connection with any such pledge, encumbrance or hypothecation, the applicable Member will
cause the pledgee or other lienor with respect to such Units to hold such Units subject to
this Agreement (including, without limitation, Section 8.8 and 8.9) and (y) without limiting
the generality of the foregoing, in the event of a foreclosure or similar action the pledgee
or other lienor will be required to comply, and will comply, in all respects with this
Agreement (including, without limitation, by giving the notices and taking the other actions
required of a “Selling Member” under Section 8.8 and 8.9 prior to any Transfer of such
Units. For the avoidance of doubt, each party hereto agrees that a Change of Control of a
Parent, or sale or transfer of other securities of a Parent, will not be deemed a Transfer
of Units hereunder.




     “Transfer Agent” is defined in Section 7.9(c).



A-16









 






     “Transferee” means any Person to whom any Units are Transferred.




     “Transfer Entities” is defined in Exhibit A to the Transaction Agreement.




     “Transferor” means any Person that Transfers Units.




     “TWC” is defined in the preamble.




     “Unit Holding Company” means any Investor Unit Holding Company or a Sprint Unit
Holding Company.




     “Unit Holding Company Stockholder” is defined in Section 7.9(h).




     “Units” means units authorized in accordance with this Agreement, which
constitute interests in the LLC as provided in this Agreement and under the Act, entitling
the holders thereof to the relative rights, title and interests in the profits, losses,
deductions and credits of the LLC at any particular time as set forth in this Agreement, and
any and all other benefits to which a holder thereof may be entitled as a Member under this
Agreement, together with the obligations of the Member to comply with all terms and
provisions of this Agreement.




     “Unit Exchange Rate” is defined in Section 7.9(a).




     “Voting Units” means the Units that entitle the holder to cast one vote for
each Unit on all matters reserved for the Members’ approval, consent or consideration under
this Agreement or the Act.




     “WiMAX” means the IEEE 802.16e-2005 Wave 2 conforming technology standard,
including future evolution thereof (as defined by the WiMAX Forum).




     “WiMAX Forum” means the industry-led, non-profit corporation formed to promote
and certify compatibility and interoperability of broadband wireless products using industry
standard IEEE 802.16e.




     “Wireless Broadband Business” is defined in Section 2.6(d).




     “Wireless Broadband Network” is defined in the recitals.




     “Withheld Taxes” is defined in Section 5.9(a).




     “Withholding Loan” is defined in Section 5.9(a).



A-17









 





EXHIBIT A




TERMS FOR SPRINT TAX LOANS



Principal Amount: Previously unrecognized Built-In Gain recognized and allocated to Sprint under
Code Section 704(c) with respect to a sale or other disposition of Former Sprint Assets by the LLC
and its Subsidiaries during the Taxable Year, reduced by any Losses allocable to Sprint for such
Taxable Year, multiplied by the then-highest marginal federal and state income Tax rate applicable
to a corporate resident of the state in which Sprint’s principal corporate offices are located
(taking into account the deductibility of state Taxes for U.S. federal income tax purposes).



Interest Rate: A floating rate equal to the higher of (x) the interest rate for the LLC’s
unsecured floating rate indebtedness and (y) the interest rate for Sprint Parent’s unsecured
floating rate indebtedness plus 200 basis points.



Interest Payments: Accrued interest shall be payable by Sprint semiannually.



Principal Payments: Principal shall be payable in equal annual installments from the loan date to
the later of (a) the 15th anniversary of the Effective Date or (b) the first anniversary
of the loan date.



Prepayments; Offset: Sprint may prepay principal and accrued interest at any time. Upon Sprint’s
sale or other disposition of Class B Common Units (other than to a Permitted Transferee), a
percentage of the outstanding principal and accrued and unpaid interest equal to the number of
Class B Common Units sold or otherwise disposed of by Sprint divided by the total number of Class
B Common Units held by Sprint on the date of such sale or other disposition, will be mandatorily
prepayable. All distributions to Sprint or any Sprint Permitted Transferee from the LLC shall be
applied to reduce the outstanding interest due with respect to, and then-principal amount of, such
Sprint Tax Loan.



Condition to LLC’s Obligation to Make Sprint Tax Loan: No Bankruptcy (as defined in the
Transaction Agreement) of Sprint or Sprint Parent shall exist as of the loan date, unless the loan
is approved by the applicable bankruptcy court under Section 364(c) and Section 364(d) of the
Bankruptcy Code on a super-priority, administrative claim, and first priority primary lien, basis.



Security: Sprint Parent will be required to provide a guarantee of such Sprint Tax Loan in form
and substance reasonably satisfactory to the LLC.




 









 








EXHIBIT B




MEMBERS; UNITS; PERCENTAGE INTERESTS




	 	 	 	 	 	 	 
		 	 	 	Initial
	 	 	 	 	Number of
	 	 	 	 	Non-Voting
	 	 	Initial	 	Units	 	Initial
	 	 	Number of	 	(Identified by	 	Percentage
	Member	 	Voting Units	 	Class of Unit)	 	Interest
	 
	 	 	 	 	 	 
	Managing Member(s)
	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	The Company
	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	Member(s)
	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	[SPRINT]
	 	 	 	 	 	 
	[STRATEGIC INVESTOR]
	 	 	 	 	 	 







A-19









 








EXHIBIT C




INITIAL CAPITAL ACCOUNT BALANCES




	 	 	 
	Member(s)
	 	Capital Account Balance






 









 






EXHIBIT D




Assignment and Assumption Agreement

(Permitted Transferees and Permitted Designees)




     This Assignment and Assumption Agreement (this “Assignment and Assumption Agreement”) is made
as of the date written below by the undersigned (the “[Transferee/Designee]”) in accordance with
the Amended and Restated Operating Agreement of NewCo LLC dated as of                     , 2008 (as
amended from time to time, the “Operating Agreement”) among                     . Capitalized terms used
but not defined herein shall have the meaning ascribed to such terms in the Operating Agreement.



     The [Transferee/Designee] hereby acknowledges, agrees and confirms that, by its execution of
this Assignment and Assumption Agreement, and upon consummation of the acquisition or Transfer, as
applicable, of Units, the [Transferee/Designee] will be a Member and will be subject to all rights
and obligations of a Member owning the acquired Units or the Transferor Member, as applicable,
under the Operating Agreement. The [Transferee/Designee] hereby ratifies, as of the date hereof,
and agrees to be bound by, all of the terms, provisions and conditions contained in the Operating
Agreement.



     IN WITNESS WHEREOF, the undersigned has executed this Assignment and Assumption Agreement as
of the date written below.



Date:                           ,           




	 	 	 	 	 
	 	[TRANSFEREE/DESIGNEE]

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



Address for Notices:




 









 








EXHIBIT E




Form of Assignee Agreement





     Under the Amended and Restated Operating Agreement of NewCo LLC, dated as of                     , 2008
(the “Operating Agreement”), by and between                                         , the undersigned agrees that,
having acquired Units from                      (the “Transferor”) as permitted by the terms of
the Operating Agreement, the undersigned will comply with, and assumes the obligations of the
Transferor under, Sections 7.4(c), 7.4(d), 8.1 and 8.3 of the Operating Agreement with respect to
the Transferred Units. The undersigned represents that at least one of the following statements is
true and will continue to be true throughout the period during which the undersigned holds Units:



     (a) The undersigned is not a partnership, grantor trust or S corporation (as determined for
U.S. federal income tax purposes) (any such entity being referred to herein as a “Flow-Through
Entity”);



     (b) The undersigned is a Flow-Through Entity and, with regard to each Beneficial Owner (as
defined below) of the undersigned, a principal purpose for the establishment of the undersigned or
use of the undersigned to own the Units does not include avoidance of the 100-partner limitation
set forth in Treasury Regulation Section 1.7704-1(h)(1)(ii). For purposes of this Agreement, the
term “Beneficial Owner” shall mean, with respect to the undersigned, any person that holds
an equity interest in the undersigned, either directly or indirectly through a nominee, agent
and/or through one or more entities that are Flow-Through Entities; or



     (c) The undersigned is a Flow-Through Entity and, with regard to each Beneficial Owner, not
more than 50 percent of the value of such Beneficial Owner’s interest in any Flow-Through Entity is
attributable to such Flow-Through Entity’s direct or indirect interest in the LLC.



     Capitalized terms used but not defined in this Agreement have the meanings assigned to them in
the Operating Agreement.



Listed below is information regarding the Units:




Number and Class of Units




 









 





          IN WITNESS WHEREOF, the undersigned has executed this Assignee Agreement as of                           ,
20     .



	 	 	 	 	 
	 	 	[NAME OF ASSIGNEE]

 	 
	 	  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 




     Acknowledged by:



 









 





EXHIBIT F




Equityholder Groups’ Maximum Number of Holders




	 	 	 	 	 
	 	 	Equityholder Group’s Maximum
	Equityholder Group	 	Number of Holders
	[Sprint]

	 	 	36	 
	[Intel]

	 	 	15	 
	[Comcast]

	 	 	15	 
	[TWC]

	 	 	10	 
	[BHN]

	 	 	2	 
	[Eagle River]

	 	 	3	 
	[Managing Member]

	 	 	9