Common use of Service and Other Credit Clause in Contracts

Service and Other Credit. (a) NewCo LLC will grant each Clearwire Employee and Transferred Employee full service credit for his or her service with, as applicable, Clearwire or a Clearwire Affiliate or Sprint or a Sprint Affiliate for all purposes under all of NewCo LLC’s employee benefit plans, programs and policies (other than for purposes of accrual under any defined benefit plan or, except as provided for in Section 2.7(a), vesting under any equity-based compensation plan), including vacation, holiday and severance pay plans, programs and policies (individually a “NewCo LLC Plan” and collectively the “NewCo LLC Plans”); provided, however, that such service shall not be recognized to the extent that it would result in duplication of benefits. Except as expressly set forth in this Section 11.3, NewCo LLC will not make any distinctions after the Closing with respect to compensation or benefits between NewCo LLC’s employees based on whether an employee is, or was, a Clearwire Employee or a Transferred Employee. (b) Each Clearwire Employee and Transferred Employee will be eligible to participate in each NewCo LLC Plan at the Closing if he or she was eligible to participate immediately before the Closing in a plan, program or policy of, as applicable, Clearwire or a Clearwire Affiliate or Sprint or a Sprint Affiliate which provided comparable benefits to the benefits provided in the NewCo LLC Plan. (c) The NewCo LLC Plan which is described in Section 401(a) of the Code will accept a direct rollover from a Sprint plan or the plan of a Sprint Affiliate which also is described in Section 401(a) of the Code. (d) Each Clearwire Employee and Transferred Employee will receive full credit for the calendar year which includes the Closing under each NewCo LLC Plan which conditions the payment of benefits on the satisfaction of any co-payment or deductible requirements for all co-payments made and deductibles paid for the calendar year under a corresponding Sprint plan or a corresponding plan of a Sprint Affiliate, and no Clearwire Employee or dependent of a Clearwire Employee or Transferred Employee or dependent of a Transferred Employee will be subject to any pre-existing condition limitation under a NewCo LLC Plan except to the extent he or she was subject to the limitation under a corresponding Clearwire or Sprint plan or a corresponding plan of a Clearwire Affiliate or Sprint Affiliate immediately before the Closing. In addition, each Clearwire Employee and Transferred Employee will receive credit or debits under a NewCo LLC Plan that is a cafeteria plan under Section 125 of the Code equal to the sum of all contributions to the applicable Clearwire or Sprint plan made with respect to the calendar year that includes the Closing by or on behalf of the Clearwire Employee or Transferred Employee for the calendar year reduced by the sum of all claims incurred in the calendar year in which the Closing occurs and paid by the Clearwire or Sprint plan. (e) Each Clearwire Employee and Transferred Employee will be eligible to receive no less annual paid vacation and other annual paid time off under NewCo LLC’s Plans that provide paid vacation and other paid time off as he or she was eligible to receive immediately before the Closing under the corresponding Sprint and Clearwire plans or the corresponding plans of a Sprint Affiliate or Clearwire Affiliate. (f) Sprint will be responsible for any liability for severance pay and any amounts related to acceleration of Sprint stock options or other equity awards as a result of the transactions contemplated by this Agreement either under a Sprint plan, program or policy or a plan, program or policy of a Sprint Affiliate or under applicable Law, except that if NewCo LLC fails to offer employment to any of the individuals listed in a writing dated as of the Execution Date expressly referencing this Section 11.3(f) in accordance with the basic terms and conditions agreed upon in accordance with Section 11.1(b) and Sprint terminates the employment of such individuals within the 90 days following the Closing, then NewCo LLC will on demand from Sprint reimburse Sprint for the severance payment obligations of Sprint for such individual as set forth in such writing opposite each individual’s name to the extent paid by Sprint. (g) The only Persons that have any rights under this Article 11 are the Parties. No other Person or Persons have any rights whatsoever (whether as a third party beneficiary or otherwise) under this Article 11. The provisions of this Article 11 are not intended to constitute an amendment to any benefit plan. (h) NewCo LLC will reimburse Sprint for all salary and employee benefits incurred after the Closing with respect to any individual who is employed by Sprint or any of its Subsidiaries in the Sprint WiMAX Business on the Closing Date and who does not become a Transferred Employee on the Closing Date, but whom NewCo LLC has requested in writing continue to provide services to the WiMAX Business on a transitional basis after the Closing Date. NewCo LLC’s obligation to reimburse Sprint with respect to any individual will end upon the earliest to occur of the date that (i) such individual becomes a Transferred Employee, (ii) ten (10) Business Days following the date that NewCo LLC notifies Sprint that such individual is no longer needed to perform services for NewCo LLC, (iii) is no longer employed by Sprint or any of its Subsidiaries and (iv) is assigned by Sprint or any of its Subsidiaries to perform other duties. Nothing in this Section 11.3(h) is intended to require Sprint to retain any employee who does not become a Transferred Employee after the Closing, to cause NewCo LLC to be liable for severance pay (except as provided in Section 11.3(f)) or any amounts related to acceleration of stock options or other equity awards, or to impose on NewCo LLC any obligation to request the services of any employee who does not become a Transferred Employee.