Marketing Funds. Sprint has the right (subject to the satisfaction of the conditions set forth in the relevant agreements) to have expended on its behalf approximately $250 million of market development and device incentive funds (“Marketing Funds”) by one or more vendors under supply agreements relating to the Sprint WiMAX Business. Subject to the terms of, and performance by Sprint of its obligations under the relevant agreements (x) to be performed prior to the Closing and (y) which relate to or impact the availability of any of the Marketing Funds, Sprint will have the right to retain up to $100 million of the Marketing Funds for its own benefit and not to assign those rights to the Transfer Entities. If the vendor or vendors providing the Marketing Funds to be allocated to Sprint are unwilling to allow Sprint to retain such Marketing Funds or allocate the full $100 million of Marketing Funds for Sprint’s own benefit prior to the end of 2009, NewCo will direct such additional spending of the Marketing Funds as directed by Sprint for the benefit of Sprint prior to December 31, 2009, so that Sprint receives the full $100 million benefit prior to that date. Such direction will be made by NewCo as and when the vendors have committed to expend any Marketing Funds after the Closing pursuant to supply agreements entered into by Sprint and its Subsidiaries prior to the Closing. Sprint and NewCo will discuss and cooperate with respect to the use of such Marketing Funds for Sprint’s benefit. If prior to the Closing, Sprint takes any actions to amend the Marketing Funds provisions of the relevant agreements or otherwise takes or fails to take any actions that adversely affect NewCo’s rights to the Marketing Funds (other than the $100 million of the Marketing Funds to be retained by Sprint pursuant to this Section 3.5), NewCo shall be entitled to seek monetary damages against Sprint to compensate NewCo for the loss of such Marketing Funds. NewCo will not take any actions to amend the Marketing Funds provisions of the relevant agreements or otherwise adversely affect such Marketing Funds to be allocated to Sprint until its obligations to Sprint under this Section 3.5 have been satisfied in full.
Appears in 4 contracts
Samples: Transaction Agreement and Plan of Merger, Transaction Agreement and Plan of Merger (Clearwire Corp), Transaction Agreement and Plan of Merger (Sprint Nextel Corp)
