Certain Undertakings. (a) The Equityholders and the Company agree that the initial three-year business plan of the Company and the LLC will not contemplate the formation of an enterprise sales force. During the three-year period following the Effective Date, the Company and its Subsidiaries will promptly refer to Sprint any opportunities that they become aware of for the sale of Wireless Broadband Products and Services to the most recently published Fortune 1000 companies (the “Fortune 1000 Companies”); provided, that if a Fortune 1000 Company directly approaches the Company or the LLC to obtain services of the Wireless Broadband Network or other services sold by the Company or the LLC, then nothing in this Section 2.10(a) will preclude the Company or the LLC from making such sales directly so long as it also makes the referral to Sprint. Sprint and the Company will, from time to time, meet with respect to certain Fortune 1000 Companies and discuss in good faith opportunities where it may make sense for the Company or the LLC to service a particular account (e.g. regional headquarters). The Company and Sprint will each designate a contact point and use a mutually agreeable form and process for handling referrals. Sprint will appoint at least one representative to be responsible for handling the Sprint sales effort to the Fortune 1000 Companies. Sprint’s right to continue to be the primary enterprise sales force selling services on the Wireless Broadband Network to the Fortune 1000 Companies after the initial three-year period shall be subject to the mutual agreement of the Company and Sprint. Nothing in this Section 2.10(a) will preclude or affect the ability of any Person that is a party to a wholesale or MVNO agreement with the Company from marketing, promoting or selling the services of the Wireless Broadband Network to the Fortune 1000 Companies as long as such agreement is on customary, arms length terms and neither the Company nor any of its Subsidiaries owns any equity in such Person or is entitled to any revenue share or profit share on such sales, provided that no action taken by any Strategic Investor, Intel or any of their respective Affiliates shall be deemed to violate this Section 2.10(a). (b) The Company will include in each of its annual Forms 10-K filed under the Exchange Act a reasonably detailed description of the provisions of the Charter and the Operating Agreement relating to limitations on fiduciary duties (including the allocation of corporate opportunities between the Founding Stockholders (as such term is defined in the Charter) and Members (as such term is defined in the Operating Agreement), on the one hand, and the Company and the LLC, on the other hand), together with a separate risk factor describing the material risks posed to the Company’s stockholders relating to such limitation on fiduciary duties, in each case, for so long as such provisions are in effect. (c) Determinations by the Company to take or initiate actions to enforce this Agreement against any Equityholder, as well as determinations regarding the manner in which any such actions are taken, will be made: (i) if there are fewer than three Independent Designees on the Board at the time any such determination is made, by the approval of a majority of the Independent Directors, including the approval of at least one of the Independent Designees; or (ii) if there are at least three Independent Designees on the Board at the time a decision is made, by the approval of a majority of the Independent Designees.
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Certain Undertakings. (a) The Equityholders and the Company agree that the initial three-year business plan of the Company and the LLC will not contemplate the formation of an enterprise sales force. During the three-year period following the Effective Date, the Company and its Subsidiaries will promptly refer to Sprint any opportunities that they become aware of for the sale of Wireless Broadband Products and Services to the most recently published Fortune 1000 companies (the “Fortune 1000 Companies”); provided, that if a Fortune 1000 Company directly approaches the Company or the LLC to obtain services of the Wireless Broadband Network or other services sold by the Company or the LLC, then nothing in this Section 2.10(a) will preclude the Company or the LLC from making such sales directly so long as it also makes the referral to Sprint. Sprint and the Company will, from time to time, meet with respect to certain Fortune 1000 Companies and discuss in good faith opportunities where it may make sense for the Company or the LLC to service a particular account (e.g. regional headquarters). The Company and Sprint will each designate a contact point and use a mutually agreeable form and process for handling referrals. Sprint will appoint at least one representative to be responsible for handling the Sprint sales effort to the Fortune 1000 Companies. Sprint’s right to continue to be the primary enterprise sales force selling services on the Wireless Broadband Network to the Fortune 1000 Companies after the initial three-year period shall be subject to the mutual agreement of the Company and Sprint. Nothing in this Section 2.10(a) will preclude or affect the ability of any Person that is a party to a wholesale or MVNO agreement with the Company from marketing, promoting or selling the services of the Wireless Broadband Network to the Fortune 1000 Companies as long as such agreement is on customary, arms length terms and neither the Company nor any of its Subsidiaries owns any equity in such Person or is entitled to any revenue share or profit share on such sales, provided that no action taken by any Strategic Investor, Intel or any of their respective Affiliates shall be deemed to violate this Section 2.10(a).
(b) The Company will develop and implement procedures and safeguards, particularly with respect to access to competitively sensitive information, to ensure compliance with applicable antitrust Laws. No Equityholder will nominate a Person as its Equityholder Designee if the participation of that Person would violate any Law, including any antitrust Law.
(c) The Company will include in each of its annual Forms 10-K filed under the Exchange Act a reasonably detailed description of the provisions of the Charter and the Operating Agreement relating to limitations on fiduciary duties (including the allocation of corporate opportunities between the Founding Stockholders (as such term is defined in the Charter) and Members (as such term is defined in the Operating Agreement), on the one hand, and the Company and the LLC, on the other hand), together with a separate risk factor describing the material risks posed to the Company’s stockholders relating to such limitation on fiduciary duties, in each case, for so long as such provisions are in effect.
(cd) Determinations by the Company to take or initiate actions to enforce this Agreement against any Equityholder, as well as determinations regarding the manner in which any such actions are taken, will be made:
(i) if there are fewer than three Independent Designees on the Board at the time any such determination is made, by the approval of a majority of the Independent Directors, including the approval of at least one of the Independent Designees; or
(ii) if there are at least three Independent Designees on the Board at the time a decision is made, by the approval of a majority of the Independent Designees.
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