The Formation Transactions Sample Clauses

The Formation Transactions. Before the Closing Date, the following will have occurred: (a) Incorporation of NewCo. Clearwire will incorporate NewCo, and Clearwire will take, and will cause NewCo to take, all actions necessary so that, as of the Closing Date, NewCo’s certificate of incorporation and bylaws will be in the form attached as Exhibits B and C, respectively; and (b) Formation of NewCo LLC. Clearwire will cause NewCo to form NewCo LLC. For all periods following the formation and until the consummation of the transactions described in Sections 3.3 and 4.1, NewCo LLC will be governed by the terms of the limited liability company operating agreement of NewCo LLC in the form attached as Exhibit D (the “Initial NewCo LLC Agreement”). Clearwire will take, and will cause NewCo and NewCo LLC to take, all actions necessary so that (i) NewCo LLC is an entity disregarded as separate from NewCo for U.S. federal income tax purposes until the consummation of the transactions described in Sections 3.3 and 4.1 and (ii) as of the Closing Date and following the Merger, NewCo LLC’s limited liability company operating agreement is amended and restated in the form attached as Exhibit E (the “NewCo LLC Agreement”). (c) Formation of Clearwire Sub LLC. Clearwire will cause NewCo LLC to form Clearwire Sub LLC, and Clearwire will take, and will cause NewCo, NewCo LLC and Clearwire Sub LLC to take, all actions necessary so that (i) Clearwire Sub LLC at all times since its formation will have been, and as of the Closing will be, an entity disregarded as separate from NewCo and NewCo LLC for U.S. federal income tax purposes and (ii) as of the Closing Date and following the Merger, Clearwire Sub LLC’s limited liability company operating agreement will be in the form attached as Exhibit F.