This excerpt taken from the S 8-K filed May 7, 2008.
SECTION 13.1 Indemnification by Sprint. From and after the Closing Date, Sprint will indemnify and defend NewCo, NewCo LLC and their Subsidiaries and their respective successors and assigns (the NewCo Indemnified Persons), on a net after-Tax basis, from and against any and all Damages incurred or suffered by any NewCo Indemnified Person arising out of, in connection with or relating to:
(a) any breach or inaccuracy of any representation or warranty of Sprint in Section 7.1(d) (Sprint Assets), Section 7.7(h) (Tax Treatment of Sprint Entities), Section 7.7(i) (Sprint Qualified Liabilities) or Section 7.14 (No Obligations);
(b) (i) all Taxes imposed on or measured by the income of Sprint Sub LLC, the Transfer Entities and their respective predecessors for taxable periods or portions thereof ending on or before the Closing Date; and all such Taxes of any member of an affiliated, consolidated, combined or unitary group of which Sprint or any of its Subsidiaries (including Sprint Sub LLC and any Transfer Entity or its predecessor) is or was a member on or prior to the Closing Date, including any liability imposed under Treasury Regulation Section 1.1502-6 or any similar state, local or foreign law or regulation, (ii) the sales tax liability described in items (b) and (c) on Section 7.7 of the Sprint Disclosure Schedule and (iii) any Sprint Restructuring Transfer Taxes;
(c) all Liabilities of either Sprint, any Subsidiary of Sprint (including Sprint Sub LLC and any Transfer Entity) or any ERISA Affiliate of any of the foregoing which arise under or relate to any employee benefit plan (as defined in Section 3(3) of ERISA), incentive plan or other benefit arrangement of Sprint, any Subsidiary of Sprint (including any Transfer Entity, Sprint Sub LLC or any ERISA Affiliate of any of the foregoing that is subject to Title IV of ERISA, Section 302 of ERISA, Section 412 of the Code, COBRA or any other statute or regulation that imposes liability on a so-called controlled group basis with or without reference to any provision of Section 414 of the Code or Section 4001 of ERISA, including by reason of the Sprints affiliation with any of its ERISA Affiliates or NewCo being deemed a successor to any ERISA Affiliate of Sprint or any Subsidiary of Sprint (including any Transfer Entity and Sprint Sub LLC);
(d) all Liabilities of Sprint Sub LLC or any Transfer Entity that do not relate primarily to the Sprint WiMAX Business and do not relate to or arise out of actions or omissions taken by NewCo or any of its Subsidiaries after the Closing Date; or
(e) all Liabilities of Sprint Sub LLC or any Transfer Entity that relate to any pending or future litigation brought by any party to a Sprint Affiliate Management Agreement against Sprint or any of its Affiliates or NewCo or any of its Affiliates regarding the plaintiffs contractual arrangements with Sprint and/or its Affiliates (collectively, the Indemnified Litigation).
SECTION 13.2 Indemnification Procedures.
(a) In the case of any Proceeding with respect to which Sprint (the Indemnifying Party) is obligated under Article 13 to indemnify any NewCo Indemnified Person (as the case may be, the Indemnified Party), the Indemnified Party will give prompt written notice thereof to the Indemnifying Party. In the event of any Proceeding asserted by any third party (a Third Party Claim), the Indemnifying Party may assume the defense of such Third Party Claim by employment of counsel reasonably satisfactory to the Indemnified Party no later than 30 days after the date of the notice. The Indemnified Partys delay or failure to notify timely the Indemnifying Party will not relieve the Indemnifying Party of its obligations under this Article 13, except to the extent the delay has an adverse impact on the Indemnifying Partys ability to defend against the Damages. If the Indemnifying Party does assume the defense, the Indemnified Party may, if it so desires, employ counsel at its own expense. In addition, where the named parties to a Proceeding include both the Indemnifying Party and an Indemnified Party, the Indemnified Party shall be entitled to retain its own counsel, at the Indemnifying Partys expense, where the Indemnified Party has been advised by counsel that there are conflicts of interest between the Indemnifying Party and the Indemnified Party which make representation by the same counsel not appropriate.
(b) The Indemnifying Party may, without the Indemnified Partys consent, settle or compromise any Third Party Claim or consent to the entry of any judgment if the
settlement, compromise or judgment involves only the payment of money by the Indemnifying Party (which payment is made or adequately provided for at the time of the settlement, compromise or judgment), or provides for unconditional release by the claimant or plaintiff of the Indemnified Party (and all of its Affiliates) from all liability with respect to the Third Party Claim and does not impose injunctive relief, admissions against interest or operating restrictions against any of the Indemnified Party or any of its Affiliates. Subject to the provisions of Section 13.2(c), the Indemnified Party will not settle or compromise any Third Party Claim without the prior written consent of the Indemnifying Party.
(c) The Indemnified Party will provide reasonable assistance to the Indemnifying Party in the defense of the Third Party Claim. If the Indemnifying Party does not so assume the defense, the Indemnified Party may do so, with all reasonable costs and expenses thereof being borne by the Indemnifying Party, except that, the Indemnified Party will not, without the prior written consent of the Indemnifying Party, which consent will not to be unreasonably withheld, settle or compromise any Third Party Claim or consent to the entry of any judgment if such settlement, compromise or judgment involves injunctive or other non-monetary relief that adversely affects the Indemnifying Party.
(d) Any refunds of Taxes indemnified or subject to indemnification by Sprint under Section 13.1(b) that are received by NewCo, NewCo LLC or their Subsidiaries will be paid over to Sprint, net of any costs (including Tax costs) incurred or reasonably expected to be incurred by NewCo LLC or any member or subsidiary thereof in recovering or by reason of receipt of such refunds, promptly upon receipt.
SECTION 13.3 Limitation of Liability.
(a) Notwithstanding anything to the contrary set forth in this Agreement, no Indemnifying Party will be liable for any breach or inaccuracy of any representation or warranty of Sprint in Section 7.14 (No Obligations) unless the aggregate amount of Damages incurred by the Indemnified Parties with respect to breaches or inaccuracies of the representations or warranties of Sprint in Section 7.14 (No Obligations) exceeds $25 million (the Deductible Amount) and then only to the extent of such excess.
(b) No Party will be liable to any other Party for special, indirect, incidental, exemplary, consequential or punitive damages, or loss of profits, arising from the relationship of the Parties or the conduct of business under, or breach of, this Agreement, except where the damages or loss of profits (i) are claimed by or awarded to a third party in a claim or (ii) arise from a Partys willful misconduct or intentional misrepresentation.
SECTION 13.4 Claims Period. No Indemnified Party may make a claim against an Indemnifying Party (a) under Section 13.1(a) (other than to the extent relating to the breach of a representation set forth in Section 7.7(h) or Section 7.7(i)) after the third anniversary of the Closing Date or (b) under Section 13.1(a) (to the extent relating to a claim for the breach of a representation set forth in Section 7.7(h) or Section 7.7(i)), after the expiration of any applicable statutes of limitation (the applicable period, the Claims Period); provided that
claims under Sections 13.1(b)-(e) and Section 13.5 may be made and shall survive indefinitely. Notwithstanding the foregoing, if, before the close of business on the last day of the applicable Claims Period, an Indemnifying Party has been properly notified of a claim for indemnity under this Agreement and the claim has not been finally resolved or disposed of at that date, the claim will continue to survive and will remain a basis for indemnity under this Agreement until the claim is finally resolved or disposed of in accordance with the terms of this Agreement.
SECTION 13.5 Additional Indemnification by Sprint. From and after the date hereof, Sprint will indemnify and defend each of the other Parties hereto and their Subsidiaries and their respective successors and assigns (the Additional Indemnified Persons), on a net after-Tax basis, from and against any and all Damages incurred or suffered by any Additional Indemnified Person arising out of, in connection with or relating to the Indemnified Litigation. Sections 13.2 and 13.3(b) shall apply fully, mutatis mutandis, to the indemnification provided provided under this Section 13.5 (with Section 13.2 applying as if, for purposes of that Section, the Additional Indemnified Persons were NewCo Indemnified Persons). None of the Investors or their Subsidiaries or their respective successors and assigns will be entitled to make any claim under this Section 13.5 for any actual or alleged diminution in value of their NewCo Capital Stock or membership interests in NewCo LLC.
SECTION 13.6 Exclusion of Other Remedies. From and after the Closing Date, the indemnification obligations set forth in this Article 13 will constitute the sole and exclusive remedies of the Parties for any Damages based on, arising out of or otherwise in respect of any matter addressed in Section 13, except for remedies involving specific performance or other equitable relief.