exv10w5







Exhibit 10.5




CONFIDENTIAL TREATMENT REQUESTED UNDER

17 C.F.R. SECTIONS 200.80(b)(4), 200.83 AND 230.24b-2.

[*****] INDICATES OMITTED MATERIAL THAT IS THE

SUBJECT OF A CONFIDENTIAL TREATMENT REQUEST

FILED SEPARATELY WITH THE COMMISSION.

THE OMITTED MATERIAL HAS BEEN FILED

SEPARATELY WITH THE COMMISSION.




SETTLEMENT AND RELEASE AGREEMENT




     This Settlement and Release Agreement (the “Settlement Agreement”) is made and entered into
between Sprint Spectrum L.P. (“Sprint”) and Clearwire Communications LLC (“Clearwire”). Sprint and
Clearwire may be referred to individually as a “Party” or collectively as “Parties.”



RECITALS



A. The Parties, along with other entities, entered into the 4G MVNO Agreement
dated November 28, 2008, which agreement has been amended from time to time (as
amended, the “4G MVNO Agreement”). The parties, along with other entities, entered into
the MVNO Support Agreement dated as of May 7, 2008, which agreement has been amended
from time to time (as amended, the “3G MVNO Agreement”).



B. The parties have numerous disputes about the price and pricing methodology for
usage (whether the usage has been invoiced or not and regardless of when the usage was
invoiced) and subscribers on Clearwire’s Network and Sprint’s Network from May 7, 2008,
to the Effective Date.



C. Clearwire and Sprint have commenced an arbitration proceeding that seeks, among
other things, to resolve disputes over the manner in which certain revenue related to
the use of “smartphones” on the Clearwire Network and Sprint Network is allocated (the
“Smartphone Arbitration”).



D. In order to avoid the costs and risks of litigation and further disputes, the
Parties now desire to resolve and settle all of the disputes pertaining to usage and
pricing on the Clearwire Network and the Sprint Network from May 7, 2008 through and
including December 31, 2010, for Sprint’s End Users’ usage on the Clearwire Network and
for Clearwire’s End Users’ usage on the Sprint Network, and through and including March
13, 2011, for the allocation of MSOs Dual-Mode Charges, set out in these recitals
(“Disputes”).




AGREEMENT



In consideration of the payment of the settlement amounts and the other promises in this Agreement
and in full and final settlement of the Disputes, the Parties agree as follows:



1. Settlement Amount for Sprint’s End Users’ Usage on Clearwire Network. In settlement of all
claims relating to Sprint’s End Users’ usage on the Clearwire Network from November 28, 2008
through December 31, 2010; in consideration for the modifications to the 4G MVNO Agreement; in
consideration for the modifications to the 3G MVNO Agreement; in consideration for the
modifications to the December 23, 2009 Dual Mode Settlement Letter Agreement; in consideration for
all other promises contained in the Omnibus Agreement (“Omnibus Agreement”) and all documents
attached to the Omnibus Agreement, including this Settlement Agreement; and in consideration for
all other modifications described herein, Sprint will pay Clearwire [*****] within 10 business days
after the Effective Date via wire transfer. For the sake of clarity, Sprint and Clearwire agree
that the foregoing [*****] payment is separate and apart from and in addition to the Wireless
Broadband Services Prepayment, the 2011 Take-or-Pay or the 2012 Take-or-Pay described in Schedule
7.1 of the April 2011 Clearwire / Sprint Amendment to the 4G MVNO Agreement. Clear Wireless LLC, an
affiliate of Clearwire, provided the services that are a part of the settlement amount in this
paragraph. Notwithstanding the role of Clear Wireless LLC, nothing will prevent Sprint from
enforcing any rights against Clearwire.



2. Settlement Amount for Clearwire’s Customer’s Usage on Sprint Network. In settlement of all
claims relating to Clearwire’s Customer’s usage on the Sprint Network from May 7, 2008, through
December 31, 2010, Clearwire will pay Sprint [*****] within 10 business days after the Effective
Date via wire transfer.




Confidential — Subject to Nondisclosure Obligations







 









 







3. Allocation of MSOs Dual-Mode Charges. In settlement of all claims relating to allocating
retail minus Dual-Mode Charges between Sprint and Clearwire under section 4(c)(iii) of S chedule
7.2 of the 4G MVNO Agreement for the MSO Parties from May 7, 2008 through and including March 13,
2011, Sprint will pay Clearwire [*****] within 10 business days after the Effective Date via wire
transfer. Clearwire reserves the right to offer the SIG Parties an amendment to the current
retail-minus based unlimited dual mode rate plans to include [*****].



4. Dismissal of Arbitration. Within ten days of the Effective Date, the Parties will jointly
deliver instructions to the American Arbitration Association withdrawing the demand for arbitration
and terminating the Smartphone Arbitration. Each Party shall pay all of its own costs and expenses
associated with or arising out of the Smartphone Arbitration.



5. Contingent Nature of Settlement Agreement. This Settlement Agreement is contingent upon the
Parties executing all of the following documents: (1) April 2011 Clearwire / Sprint Amendment to
the 4G MVNO Agreement; (2) Sprint / Clearwire First Amendment to the MVNO Support Agreement (3G);
(3) First Amendment to the December 23, 2009 Dual Mode Settlement Letter Agreement; (4) Amended and
Restated Enhanced In-Building Coverage Deployment Agreement; and (5) Omnibus Agreement.




6. Provision of Information




     6.1 As soon as practicable following any request therefor from Sprint [*****] Clearwire shall
provide to Sprint the best available financial information relating to Clearwire and its
subsidiaries requested by Sprint to enable Sprint to close its books or accounting records and to
issue a press release with respect to its financial results for any quarterly period or fiscal
year. The financial information is limited to Clearwire’s statement of operations for the
reporting period, including after tax net income/(loss) and net income/(loss) attributable to
Clearwire, a shareholders’ equity reconciliation including Sprints ownership interest in Clearwire
as of the end of the reporting period and any information required for related party reporting and,
if deemed necessary and separately requested by Sprint, Clearwire Corporation’s income/(loss)
before income taxes for the reporting period. Clearwire, using its reasonable best efforts, shall
provide Sprint additional information or explanation associated with the financial information
delivered in accordance with this Section 6.1 necessary for Sprint to close its books for the
reporting period. Sprint acknowledges that the financial information provided by Clearwire will be
Clearwire’s best estimate as of the date provided and that subsequent material adjustments may be
made to the financial information by Clearwire. Clearwire will use its reasonable best efforts to
inform Sprint of any material adjustments to the financial information previously provided on a
timely basis, including an update of any material known and unresolved issue that could potentially
affect amounts previously disclosed by Clearwire to Sprint. The Parties acknowledge that failure
by Clearwire to provide materially accurate financial information will not result in a breach of
this Settlement Agreement, the 4G MVNO Agreement (as amended), the Omnibus Agreement, the December
23, 2009 Dual Mode Settlement Letter Agreement (as amended), the Sprint/Clearwire First Amendment
to the MVNO Support Agreement (3G), the Amended and Restated Enhanced In-Building Coverage
Deployment Agreement, or of the Investment Agreement dated as of November 9, 2009.



     6.2 As soon as practicable following the date of receipt of any request therefor from Sprint
[*****] Clearwire, using its reasonable best efforts, shall provide to Sprint such information as
may be requested by Sprint from time to time to facilitate an offering and sale of debt or equity
securities by Sprint or its subsidiaries pursuant to the Securities Act of 1933 (an “Offering”),
including providing to Clearwire’s independent registered public accounting firm information, such
management representation letters and other documents, as may be required for the delivery by such
registered public accounting firm of any consent required for the inclusion of Clearwire’s audited
consolidated financial statements in or their incorporation by reference into a registration
statement or other offering document used in connection with an Offering. As soon as practicable
following the date of receipt of any request therefor from Clearwire, [*****] Sprint, using its
reasonable best efforts, shall provide to Clearwire such information as
may be requested by Clearwire from time to time to facilitate an Offering by Clearwire or its
subsidiaries, including providing to Sprint’s independent registered public accounting firm
information, such management representation letters and other documents, as may be required for the
delivery by such registered public accounting firm of any consent required for the inclusion of
Sprint’s audited consolidated financial statements in or their incorporation by reference into a
registration statement or other offering document used in connection with an Offering.



					
	 	 	 	 	 
	 
	 	Confidential — Subject to Nondisclosure Obligations
	 	2






 









 






     6.3 The obligations of Clearwire set forth in this section 6 supersede the obligations of
Clearwire set forth in section 6.5(a)(iii) of the Investment Agreement dated as of November 9, 2009
among Clearwire, Clearwire Communications LLC, Sprint, Comcast Corporation, Time Warner Cable Inc.,
Bright House Networks, LLC, Eagle River Holdings, LLC, and Intel Corporation.


7. Bundling Letters. The parties agree that as between Sprint and Clearwire only the following
letters are null and void: (a) Sprint’s December 7, 2010 letter and Sprint’s December 20, 2010
letter regarding the conditional waiver of limitation on non-bundled sales in the 3G MVNO
Agreement; and (b) Clearwire’s November 18, 2010 letter regarding the conditional waiver of
limitation on non-bundled sales in the 4G MVNO Agreement.



8. Effective Date. The Settlement Agreement is effective and enforceable as of the later of (a) the
date when both Parties have signed the Settlement Agreement or (b) the date when both Parties have
signed all of the documents upon which the Settlement Agreement is contingent, which are set out in
Section 5, (“Effective Date”).



9. Sprint Release. On behalf of itself and its parents, direct and indirect subsidiaries,
affiliates, affiliated entities, partners, joint venturers, predecessors, successors, assigns,
employees, agents, insurers, attorneys, accountants and every person or entity acting or purporting
to act for or on behalf of Sprint (the “Sprint Releasing Parties”), the Sprint Releasing Parties
hereby release, discharge, and acquit Clearwire and all of Clearwire’s parents, direct and indirect
subsidiaries, affiliates, affiliated entities, partners, joint venturers, predecessors, successors,
assigns, officers, directors, employees, agents, insurers, attorneys, accountants, and every person
or entity acting or purporting to act for or on behalf of Clearwire (the “Clearwire Released
Parties”), from any and all claims, liabilities, rights, demands, suits, matters, liens,
obligations, damages, losses or costs, actions or causes of action of every nature and description,
in law or in equity, under statute, contract, the common law, or otherwise, that the Sprint
Releasing Parties have, had, or may have (whether known or unknown) against the Clearwire Released
Parties, including but not limited to any direct claim, third-party claim, or assigned claims,
whether known or unknown, accrued or which may accrue, asserted or unasserted, latent or patent,
that are, have been, could reasonably have been, or in the future might reasonably be, asserted,
arising from, related to, or in connection with the Disputes. The Parties agree that Sprint is not
releasing any known or unknown claims related to (a) Sprint’s End Users’ usage on the Clearwire
Network that occurred on or after January 1, 2011m to the Effective Date and (b) Clearwire’s End
Users’ usage on the Sprint Network that occurred on or after January 1, 2011, to the Effective
Date, and that for such usage Sprint has the right to dispute invoices, payments, and any other
matter as set forth in the appropriate agreement.



10. Clearwire Release. On behalf of itself and its parents, direct and indirect subsidiaries,
affiliates, affiliated entities, partners, joint venturers, predecessors, successors, assigns,
employees, agents, insurers, attorneys, accountants, and every person or entity acting or
purporting to act for or on behalf of Clearwire (the “Clearwire Releasing Parties”), the Clearwire
Releasing Parties hereby release, discharge, and acquit Sprint and all of Sprint’s parents, direct
and indirect subsidiaries, affiliates, affiliated entities, partners, joint venturers,
predecessors, successors, assigns, officers, directors, employees, agents, insurers, attorneys,
accountants, and every person or entity acting or purporting to act for or on behalf of Sprint (the
“Sprint Released Parties”), from any and all claims, liabilities, rights, demands, suits, matters,
liens, obligations, damages, losses or costs, actions or causes of action of every nature and
description, in law or in equity, under statute, contract, the common law, or otherwise, that the
Clearwire Releasing Parties have, had, or may have (whether known or unknown) against the Sprint
Released Parties, including but not limited to any direct claim, third-party claim, or assigned
claims, whether known or unknown, accrued or which may accrue, asserted or unasserted, latent or
patent, that are, have been, could reasonably have been, or in the future might reasonably be,
asserted, arising from, related to, or in connection with the Disputes. The Parties agree that
Clearwire is not releasing any known
or unknown claims related to (a) Sprint’s End Users’ usage on the Clearwire Network that occurred
on or after January 1, 2011 to the Effective Date and (b) Clearwire’s End Users’ usage on the
Sprint Network that occurred on or after January 1, 2011, to the Effective Date and that for such
usage Clearwire has the right to dispute invoices, payments, and any other matter as set forth in
the appropriate agreement.



11. Cooperation. The Parties will cooperate with each other and will take further actions and sign
further documents as may be necessary to ensure this Settlement Agreement is effective and
enforceable.




					
	 	 	 	 	 
	 
	 	Confidential — Subject to Nondisclosure Obligations
	 	3







 









 







12. Confidentiality. The Parties will maintain the terms of this Settlement Agreement in strict
confidence. A Party may disclose the terms of this Settlement Agreement to satisfy all securities
laws, rules and regulations, order of a court of competent jurisdiction, a properly issued
subpoena, an inquiry by a duly constituted government agency, or an obligation to report
information to a government agency, provided that such Party takes all reasonable steps to obtain a
protective order to protect the confidentiality of the terms of this Settlement Agreement. In such
event, the disclosing Party will provide as much notice as possible to the other Party of the
intended disclosure. The Parties are not precluded from disclosing the terms of this Settlement
Agreement to their auditors, accountants, attorneys, officers, or directors, provided that each
such person is bound by confidentiality obligations consistent with this Settlement Agreement to
that Party.



13. Power to Sign and Non-Assignment. Clearwire and Sprint represent and warrant that each has the
power and authority to execute, deliver, and perform this Settlement Agreement and that neither has
previously assigned or in any way transferred or conveyed all or any of the claims released by this
Settlement Agreement.



14. No Admission. No agreements made herein or other consideration given will be construed as an
admission of liability, all liability being expressly denied by the Parties, or that either Party
has committed or engaged in any deceptive or unlawful act, violation or breach of contract or duty
imposed by law.



15. Governing Law. This Settlement Agreement is and will be governed by and construed in accordance
with the laws of the State of New York.



16. Counterparts and Facsimiles. This Settlement Agreement may be executed in one or more
counterparts, each counterpart will be considered an original document. The facsimile signature of
any Party will be deemed to have the same effect as its original signature.



17. Modifications. This Settlement Agreement may not be revised, amended or altered except by a
written document signed by both Parties.



18. Covered Parties. This Settlement Agreement shall be binding upon and inure to the benefit of
Clearwire, Sprint, the Clearwire Released and Releasing Parties, and the Sprint Released and
Releasing Parties.



19. Entire Agreement. This Settlement Agreement is intended to be the final expression of the
Parties with respect to the subjects covered. It supersedes all prior negotiations, agreements or
understandings, written or oral, concerning those subject matters. Each Party declares that no
promise, inducement or agreement not herein expressed has been made to or with any Party and that
this Settlement Agreement contains the entire agreement between the Parties with respect to the
Dispute.



20. Acknowledgment of Understanding. Each Party executing this Settlement Agreement represents that
it has read carefully and understands all the provisions of the Settlement Agreement and has had
sufficient opportunity to evaluate the merits of entering into this Settlement Agreement.



21. Definitions. Unless otherwise defined in this Settlement Agreement, capitalized terms will have
the same meaning and effect as they have in the 4G MVNO Agreement.



IN WITNESS WHEREOF, the Parties sign this Settlement Agreement on the dates stated below:








	 	 	 	 	 	 	 	 	 	 	 

	Clearwire Communications LLC	 	Sprint Spectrum L.P.
	 
	 	 	 	 	 	 	 	 	 	 
	By:

	 	/s/ John Stanton		By: 		/s/ Steven Elfman
	 
	 	 	 	 	 	 	 	 	 	 
	 

	 	Name:
	 	John Stanton	 	Name: 	Steven Elfman
	 

	 	Title:
	 	Chairman  & CEO	 	 	 	Title:	President
	 

	 	Date:		April 18, 2011
		 	Date:	April
14, 2011






					
	 	 	 	 	 
	 
	 	Confidential — Subject to Nondisclosure Obligations
	 	 4