ARTICLE I

 

DEFINITIONS

 

Section 1.1             Certain Definitions.  The following terms are used in this Agreement with the meanings assigned below:

 

“Affiliate Group” means employees of Sprint Corporation and its Subsidiaries who are housed in and work out of (a) the Affiliate Relations Group, (b) the Affiliate/PLS-Plan & Strategy Group or (c) the Affiliate/PLS-Client Service/Technology Group, each as currently structured within Sprint Corporation.  For purposes of clarification, each of the groups currently reports to David Bottoms, Vice President-Strategic Partners.  The term “Affiliate Group” also refers to any successor group of employees to those groups referenced above that may result from any internal management restructuring within Sprint Corporation and its Subsidiaries or Related Parties.

 

“CDMA Customers” means subscribers of products and services offered by Sprint PCS and Sprint PCS Affiliates using the CDMA Network whose account is assigned to the Service Area.

 

“CDMA Network” means the national wireless network owned and operated by Sprint, UbiquiTel and the other Sprint PCS Affiliates providing services using code division multiple access technology.

 

“CDMA Products and Services” means products and services operating on the CDMA Network.

 

“Existing Litigation” means all litigation specified in the Complaint.

 

“iDEN Customers” means Nextel customers located in the Service Area who are using iDEN Products and Services.

 

“iDEN Network” means the national integrated digital enhanced network owned and operated by Nextel and its Related Parties on the date of the Sprint Nextel Merger.

 

“iDEN Products and Services” means Nextel products and services operating on the iDEN Network.

 

“Local Media” means (a) a print publication that is primarily distributed within the Service Area, (b) a radio or television station that primarily broadcasts into the Service Area or (c) a billboard or other physical advertising presence in the Service Area.

 

“Service Area” has the meaning set forth in the Management Agreement which for the avoidance of doubt shall mean the aggregate of the Service Area defined and described in the Management Agreement.

 

“Sprint PCS Affiliate” means Manager and the Other Managers.

 

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“Subsidiary” of any Person as of any relevant date means any corporation or other entity of which such Person owns or controls, directly or indirectly, a majority of the outstanding voting securities or other ownership interests, provided that Nextel Partners, Inc. will not be deemed a Subsidiary of Sprint for purposes of this Agreement until Sprint or any of its Related Parties at any time owns or controls, directly or indirectly, 50% or more of the voting securities or other ownership interests of Nextel Partners (as defined in Section 2.10(a)).

 

Section 1.2             Management Agreement.  Capitalized terms used but not defined herein have the meanings assigned to them in the Management Agreement.

 

ARTICLE II

 

COVENANTS BY SPRINT

 

Section 2.1             Preservation of Confidential Information.

 

(a)           Marketing.  Sprint will not allow any proposed marketing and advertising campaign materials, proposed service plans, or proposed credit policies provided by UbiquiTel to Sprint to be reviewed by employees of Sprint Corporation and its Subsidiaries or Related Parties other than the Affiliate Group and employees with direct responsibility for implementing such materials, plans or policies and/or reviewing such materials, plans or policies for compliance with the Trademark License Agreements, the Marketing Communication Guidelines or other applicable provisions of the Management Agreement (who will not use the information for any other purpose).

 

(b)           Billing.  Sprint will not (i) make billing systems containing data relating to CDMA Customers (e.g., Convergis/P2K) available to employees of Sprint Corporation or its Subsidiaries or Related Parties in any retail store location, sales channel, sales office (except national account managers who do not directly engage in marketing or sales efforts with national accounts headquartered in the Service Area for iDEN Products and Services in the Service Area) or administrative office that offers, supports or is involved with iDEN Products and Services in the Service Area, and agrees not to share any such data with any such employees, or (ii) provide any billing inserts or similar types of communications reflecting or otherwise referring to the Sprint Nextel Merger or any resulting brand change to CDMA Customers or iDEN Customers in the Service Area that are designed to induce or encourage, or could reasonably be expected to induce or encourage, CDMA Customers to switch to iDEN Products and Services (except for de minimus amounts that do not have a detrimental competitive impact on UbiquiTel’s business).

 

(c)           Customer Care and Telemarketing.                (i) Sprint will maintain a process of identifying and directing to designated customer service representatives CDMA Customers and iDEN Customers who call Sprint for customer care services.  Any CDMA Customer mistakenly directed to a customer care representative designated to service iDEN Customers will be transferred to a customer care representative designated to service CDMA Customers.  Any iDEN Customer mistakenly directed to a customer care representative designated to service CDMA Customers will be transferred to a customer care representative designated to service iDEN Customers.  Sprint agrees to make the details of such process available to UbiquiTel upon

 

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request.  Notwithstanding the foregoing, Sprint will have certain customer care representatives who are permitted to access information regarding both CDMA Customers and iDEN Customers for the sole purpose of serving customers who use both CDMA Products and Services and iDEN Products and Services so long as such customer care representatives are not engaged in marketing or selling iDEN Products and Services to CDMA Customers.  Customer care representatives shall be permitted to make arrangements to provide either iDEN or CDMA handsets, upon request, to existing CDMA Customers and existing iDEN Customers requesting them.

 

(ii)           Any customer care representative advised that a CDMA Customer desires to terminate its use of CDMA Products and Services will first seek to convince such CDMA Customer to continue its use of CDMA Products and Services.  If such efforts are unsuccessful, the representative may seek to sell iDEN Products and Services to such customers.  The converse process will apply for any iDEN Customer seeking to terminate its use of iDEN Products and Services.  Sprint agrees to provide to UbiquiTel, at least as frequently as current practice (or, if there is no such current practice, at least every two weeks), a detailed report setting forth the CDMA Customers who have terminated the use of CDMA Products and Services and have purchased iDEN Products and Services.

 

(iii)          Sprint and its Subsidiaries will not waive or reduce termination fees as compared to current levels in order to facilitate any CDMA Customer transferring from CDMA Products and Services to iDEN Products and Services.

 

(d)           Subscriber and Financial Data.  UbiquiTel-specific information in Sprint’s EMIS System (or any successor system) will only be able to be accessed by the Affiliate Group.  Other subscriber and financial information provided by UbiquiTel to Sprint (or otherwise generated by Sprint or any other party and relating to UbiquiTel) will only be available to the Affiliate Group and other employees and consultants of Sprint Corporation and its Related Parties in the ordinary course of business consistent with past practice, unless such information is aggregated with subscriber and financial information of the other Sprint PCS Affiliates on a basis that does not permit identification of the UbiquiTel-specific information; provided that in no event will any such information be used by any such employee or consultant in a manner that adversely affects the competitive position of the CDMA Products and Services in relation to the iDEN Products and Services in the Service Area.  Sprint will not make any external or public disclosure of UbiquiTel’s subscriber and financial information, unless such information is aggregated with subscriber and financial information of the other Sprint PCS Affiliates on a basis that does not permit identification of the UbiquiTel-specific information.

 

(e)           Network Performance.  Sprint will not allow network performance data and Format C reports provided by UbiquiTel to Sprint (or otherwise generated by Sprint or any other party and relating to UbiquiTel) to be reviewed by employees of, or consultants to, Sprint Corporation and its Subsidiaries or Related Parties other than the Affiliate Group and employees whose function relates primarily to CDMA Network performance (who will not use the information for any other purpose), unless such information is aggregated with information from the other Sprint PCS Affiliates on a basis that does not permit identification of the UbiquiTel-specific information.  However, Sprint will be permitted to use Format C reports provided by

 

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UbiquiTel (or otherwise generated by Sprint and relating to UbiquiTel) to update coverage maps and to disclose such coverage maps consistent with past practice.

 

(f)            Handset Logistics.  Sprint will not allow handset logistical data and related forecasts provided by UbiquiTel to Sprint (or otherwise generated by Sprint or any other party and relating to UbiquiTel) to be reviewed and used by employees of, or consultants to, Sprint Corporation and its Subsidiaries or Related Parties other than the Affiliate Group and employees whose function relates primarily or is necessary to the procurement of handsets (who will not use the information for any other purpose), unless such information is aggregated with handset logistical data and related forecasts of the other Sprint PCS Affiliates on a basis that does not permit identification of the UbiquiTel-specific information.

 

(g)           Business Forecasts.  Sprint will not allow business forecast data provided by UbiquiTel to Sprint (or otherwise generated by Sprint or any other party and relating to UbiquiTel) to be reviewed by employees of, or consultants to, Sprint Corporation and its Subsidiaries or Related Parties other than the Affiliate Group and employees who need to have such information for operational reasons (e.g., determining capacity needs for shared network elements), who will not use the information for any other purpose.  However, such data may be reviewed by other employees after it has been aggregated with data of the other Sprint PCS Affiliates on a basis that does not permit identification of the UbiquiTel-specific information.

 

(h)           Business Accounts Data.  Sprint will not share any information regarding CDMA Customers’ business accounts with any consultants or with any employees other than the Affiliate Group and employees who need to have such information for operational reasons (and who will not use the information for any other purpose).  All CDMA Customers’ business accounts (other than national accounts) shall only be serviced by UbiquiTel and the CDMA service of national accounts headquartered in the Service Area shall continue to be serviced by Sprint and UbiquiTel consistent with past practice.

 

Section 2.2             CDMA Products and Services.  Sprint and its Subsidiaries will not use the iDEN Network in the Service Area or any spectrum in the Service Area owned by Nextel or its Subsidiaries to provide CDMA Products and Services.  For purposes of clarification, the parties intend the above provision to apply (without limitation) to the G block 1.9 GHz spectrum to be obtained by Nextel, in addition to Nextel’s other spectrum.

 

Section 2.3             Dual Mode Handsets.  Sprint and its Subsidiaries will not offer or sell, directly or indirectly, any dual mode CDMA/iDEN handsets in the Service Area, nor will Sprint or its Subsidiaries offer or sell, directly or indirectly, any dual mode CDMA/iDEN handsets in any areas nationwide other than the Service Area unless such handsets are programmed to use the UbiquiTel CDMA Network in the Service Area on the first priority basis prior to using the iDEN Network in the Service Area (i.e., all such handsets shall “prefer” the UbiquiTel CDMA Network).

 

Section 2.4             Distribution.  Sprint will not, and will not permit any of its Subsidiaries to, sell CDMA Products and Services in the Service Area in any retail store locations owned or operated by Sprint, Nextel or any of their Subsidiaries, agent retail stores controlled by Sprint, Nextel or any of their Subsidiaries or through business sales representatives (other than with

 

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respect to national accounts, who are subject to Section 2.8) employed by Sprint, Nextel or any of their Subsidiaries (collectively, “Nextel Distribution Points”). Sprint will not, and will not permit any of its Subsidiaries to, sell CDMA Products and Services through national retailers in the Service Area other than through its National Distribution Program provided for in Section 4.1 of the Management Agreement. Sprint will implement mechanisms whereby users accessing any website operated by Sprint will first encounter an opening page that will give the user the option to select CDMA Products and Services or iDEN Products and Services (provided that the prompt to select iDEN Products and Services will be of equal or lesser prominence than the prompt to select CDMA Products and Services), and will direct all users selecting the prompt for CDMA Products and Services to an internet-based marketing site handling only CDMA Products and Services.

 

Section 2.5             Use of Brands in Service Area.  Sprint will not, and will not permit any of its Subsidiaries to, change the branding on the outside or inside of any Nextel Distribution Point in the Service Area, including without limitation signage (inside or outside), uniforms, business cards, point-of-sale materials, collateral and displays; provided, that with respect to collateral only, UbiquiTel acknowledges the possibility that there may occur limited, de minimis violations of this sentence, in which case upon written or telephonic notice from UbiquiTel, Sprint shall use its commercially reasonable efforts to promptly remove the offending collateral or otherwise remedy the situation.  However, Sprint-branded collateral will appear in connection with iDEN Products and Services in national retailers but Sprint will immediately commence its commercially reasonable efforts to cause the use and presence of such collateral to comply with the prior sentence as soon as practicable, but in any event by October 1, 2005.  In addition, iDEN handsets (including packaging) offered for sale or sold directly or indirectly (including by or through national retailers) in the Service Area will not be labeled with the word “Sprint” or any logo associated therewith (including the red diamond or the new yellow “pin drop” logo, or any new logo or branding) (the “Sprint Brands”). All other materials or items used in the marketing or sale of iDEN Products and Services by or through national retailers in the Service Area shall not utilize or include the Sprint Brands.

 

Section 2.6             Affiliate Group.  The Affiliate Group will not be involved with any planning, marketing or operations relating to iDEN Products and Services, other than with respect to other Sprint PCS Affiliates that elect to sell iDEN Products and Services.

 

Section 2.7             Advertising and Marketing.

 

(a)           Sprint will not, and will not permit any of its Subsidiaries to, purchase advertising from any Local Media to promote specific iDEN Products and Services or the iDEN Network using the Sprint Brands, and will not permit any other party to advertise or otherwise promote in Local Media specific iDEN Products and Services or the iDEN Network using the Sprint Brands in the Service Area.

 

(b)           Any print advertising not prohibited by Section 2.7(a) that uses the Sprint Brands to promote specific iDEN Products and Services or the iDEN Network and that is reasonably likely to be seen by consumers in the Service Area will contain a disclaimer to the effect that such iDEN Products and Services are available only at participating retail locations.

 

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(c)           Sprint will not, and will not permit its Subsidiaries to, undertake any new local pricing plans with respect to iDEN Products and Services in the Service Area that are unique to the Service Area and inconsistent with Sprint’s nationwide pricing plans for iDEN Products and Services.

 

(d)           Sprint will not, and will not permit any of its Subsidiaries to, make any promotional offers to CDMA Customers in the Service Area that are intended, or could reasonably be expected, to induce or otherwise encourage such CDMA Customers to reduce or cease the use of CDMA Products and Services in favor of iDEN Products and Services (for example, but without limitation, awarding free iDEN handsets to CDMA Customers who turn in their CDMA handsets).

 

(e)           Sprint will avoid, and will cause its Subsidiaries to avoid, sending any direct mail or engaging in outbound telemarketing targeted for or into the Service Area that uses the Sprint Brands to promote iDEN Products and Services; provided that UbiquiTel recognizes that Sprint’s systems will not permit total elimination of such marketing and that an immaterial de minimus amount of such marketing might occur in the Service Area. Upon written or telephonic notice from UbiquiTel that such immaterial de minimus marketing is occurring in the Service Area, Sprint will promptly use its commercially reasonable efforts to reduce such marketing to negligible levels.

 

(f)            Nothing in this Agreement will prohibit Sprint from sending to customers an announcement of the Sprint Nextel Merger that does not promote any specific product or service.

 

Section 2.8             National Accounts.  The parties acknowledge that Nextel and Sprint (together with the Sprint PCS Affiliates) currently maintain separate and distinct “national accounts” programs.  Sprint shall (following the Sprint Nextel Merger), and shall cause its Subsidiaries to, maintain separate national accounts teams for CDMA Products and Services and iDEN Products and Services with respect to national accounts headquartered in the Service Area, and no manager or member of Sprint’s national accounts team for CDMA Products and Services shall market any iDEN Products and Services to national accounts headquartered in the Service Area.

 

Section 2.9             Customer Transfers.

 

(a)           Sprint will not utilize any review and/or approval rights under the Trademark License Agreements, the Marketing Communication Guidelines or other applicable provisions of the Management Agreement to interfere with UbiquiTel’s efforts to market CDMA Products and Services to iDEN Customers in the Service Area.

 

(b)           Sprint will not waive or reduce below current levels any termination fees or other amounts payable by a customer in the Service Area in order to facilitate any CDMA Customer’s transfer from CDMA Products and Services to iDEN Products and Services.

 

(c)           Neither Sprint nor Nextel will increase or add any fees payable by a customer in the Service Area who desires to switch to a CDMA Product and Service from an iDEN Product and Service in the Service Area unless such increased or added fee would also

 

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apply to a customer switching from a CDMA Product and Service to an iDEN Product and Service in the Service Area.

 

Section 2.10           Nextel Partners.

 

(a)           Sprint agrees that if Sprint and its Related Parties at any time own, directly or indirectly, 50% or more of the voting stock of Nextel Partners, Inc. or any successor to its business (“Nextel Partners”), Sprint shall cause Nextel Partners to be bound hereby by executing an addendum to this Agreement.  Upon the execution of such addendum, Nextel Partners shall be bound hereby, and shall have the same rights and obligations hereunder as Sprint.  Within five (5) Business Days of the date Sprint becomes the direct or indirect owner of 50% or more of the voting stock of Nextel Partners, Sprint shall deliver to UbiquiTel a fully executed addendum hereto as described above, whereupon UbiquiTel shall countersign such addendum.  If Sprint fails to deliver such addendum, UbiquiTel may elect to terminate this Agreement, which shall constitute its sole remedy under this Agreement for such failure or for any failure of Nextel Partners and its Subsidiaries to comply with this Agreement prior to such time as Sprint Corporation directly or indirectly owns 100% of the voting stock of Nextel Partners (it being understood that nothing in this Agreement shall be construed as restricting UbiquiTel’s ability to claim a breach of the Management Agreement by reason of Sprint Corporation’s acquisition of greater than 50% of the voting stock of Nextel Partners or the activities of Nextel Partners following such acquisition).

 

(b)           Until such time as Sprint and its Related Parties acquires 100% of the voting stock of Nextel Partners, Nextel Partners will not have access to any Confidential Information.

 

(c)           The Affiliate Group will not be involved with any planning, marketing, operations or any other aspects of Sprint’s relationship with Nextel Partners regarding iDEN Products and Services, either prior to or following any acquisition by Sprint of any additional ownership interest in Nextel Partners.

 

(d)           Sprint will not permit the use of the Sprint Brands by Nextel Partners, unless ordered to do so by the final order of a court of competent jurisdiction.  In the eve