Exhibit 99(B)
MASTER RESTRUCTURING AND INVESTMENT AGREEMENT
Among
SPRINT CORPORATION,
FRANCE TELECOM S.A.
and
DEUTSCHE TELEKOM AG
Dated as of May 26, 1998
TABLE OF CONTENTS
Page
ARTICLE I CLOSINGS; PURCHASE AND
SALE OF SHARES 1
Section 1.1. The Primary Closing 1
Section 1.2. The Secondary Closing 3
Section 1.3. The Greenshoe Closing 4
Section 1.4. Purchase and Sale of
Shares at the Primary
Closing 5
Section 1.5. Purchase and Sale of
Shares at the Secondary
and Greenshoe Closings 6
Section 1.6. Antidilution 6
Section 1.7. Reduction of Purchased
Shares 7
Section 1.8. Effect of Conversion 7
Section 1.9. Relationship of Purchases
Under this Agreement
to CP Top Ups 7
Section 1.10. Effect on Stockholders'
Agreement 7
ARTICLE II CONDITIONS TO CLOSINGS 7
Section 2.1. Conditions of All Parties
to Primary Closing 8
Section 2.2. Sprint's Conditions
Precedent to the Primary
Closing 9
Section 2.3. Conditions Precedent to
the Primary Closing for
FT and DT 10
Section 2.4. Conditions Precedent to
Secondary and Greenshoe
Closings During the
Anticipated IPO Period 12
Section 2.5. Conditions Precedent to
Secondary and Greenshoe
Closings After the
Anticipated IPO Period 14
ARTICLE III REPRESENTATIONS AND WARRANTIES
OF SPRINT 16
Section 3.1. Organization, Qualification,
Etc. 16
Section 3.2. Capital Stock and Other
Matters 16
Section 3.3. Validity of Shares 16
Section 3.4. Corporate Authority; No
Violation 17
Section 3.5. No Conflict; No Default 18
Section 3.6. Sprint Reports and Financial
Statements 18
Section 3.7. Absence of Certain Changes
or Events 19
Section 3.8. Litigation 19
Section 3.9. Proxy Statement; Other
Information 20
Section 3.10. Certain Tax Matters 20
Section 3.11. Amendments to the Rights
Agreement 20
i
Section 3.12. Other Registration Rights 21
Section 3.13. Takeover Statutes 21
Section 3.14. Vote Required; Board
Recommendation 22
Section 3.15. Sprint Board Action 22
Section 3.16. King & Spalding Opinion 22
Section 3.17. PCS Restructuring
Agreement 22
ARTICLE IV REPRESENTATIONS AND WARRANTIES
OF THE BUYERS 22
Section 4.1. Representations and
Warranties of FT 22
Section 4.2. Representations and
Warranties of DT 25
ARTICLE V COVENANTS 27
Section 5.1. Cooperation 27
Section 5.2. Certain Actions by Sprint 29
Section 5.3. IPO Matters 31
Section 5.4. Tax Matters 31
Section 5.5. Brokers or Finders 31
Section 5.6. No Action Relating to
Takeover Statutes;
Applicability of Future
Statutes and Regulations 32
Section 5.7. Management and Allocation
Policies 32
Section 5.8. Sprint Action 32
Section 5.9. Standstill Agreement 32
ARTICLE VI TERMINATION; ABANDONMENT 33
Section 6.1. Events of Termination 33
Section 6.2. Effect of Termination 34
Section 6.3. Reimbursement of Expenses 34
Section 6.4. Abandonment of Purchase
and Sale of Capital
Stock at Primary Closing 34
Section 6.5. Abandonment of Secondary
Closing and Greenshoe
Closing 35
ARTICLE VII MISCELLANEOUS 36
Section 7.1. Survival of Representations
and Warranties 36
Section 7.2. Assignment 37
Section 7.3. Entire Agreement 37
Section 7.4. Expenses 38
Section 7.5. Waiver, Amendment, Etc. 38
Section 7.6. Binding Agreement; No
Third Party Beneficiaries 38
ii
Section 7.7. Notices 38
Section 7.8. Governing Law; Dispute
Resolution; Equitable
Relief 40
Section 7.9. Severability 41
Section 7.10. Translation 41
Section 7.11. Table of Contents;
Headings; Counterparts 42
Section 7.12. Waiver of Immunity 42
Section 7.13. Continuing Director
Approval 42
Section 7.15. Currency 43
ARTICLE VIII DEFINITIONS 43
Section 8.1. Certain Definitions 43
iii
MASTER RESTRUCTURING AND INVESTMENT AGREEMENT
MASTER RESTRUCTURING AND INVESTMENT AGREEMENT, dated
as of May 26, 1998 (the "Agreement"), among Sprint
Corporation, a corporation organized under the laws of
Kansas ("Sprint"); France Telecom S.A., a societe anonyme
formed under the laws of France ("FT"); and Deutsche
Telekom AG, an Aktiengesellschaft formed under the laws
of Germany ("DT" and, with FT, the "Buyers").
RECITALS
WHEREAS, Sprint, FT and DT entered into an
Investment Agreement dated as of July 31, 1995, as
amended (the "Original Investment Agreement"), pursuant
to which the Buyers purchased shares of capital stock
of Sprint;
WHEREAS, concurrently with the execution and
delivery of this Agreement, Sprint is entering into the
PCS Restructuring Agreement, which provides for, among
other things, (i) the CP Exchange, (ii) the IPO and
(iii) the Recapitalization (capitalized terms used
herein but not previously defined have the meanings set
forth in Article VIII of this Agreement); and
WHEREAS, in connection with the transactions
contemplated herein and in the PCS Restructuring
Agreement, Sprint and the Buyers desire to make
certain changes to various existing agreements among
the Buyers and Sprint, and the Buyers desire to
purchase certain shares of capital stock from Sprint,
all in accordance with the terms and conditions hereof.
NOW, THEREFORE, in consideration of the foregoing
and the mutual covenants and agreements set forth
herein, each of FT, DT and Sprint (each a "Party" and
collectively the "Parties") agrees as follows:
ARTICLE I
CLOSINGS; PURCHASE AND SALE OF SHARES
Section 1.1. The Primary Closing. The
Primary Closing shall take place at the offices of
King & ▇▇▇▇▇▇▇▇, ▇▇▇▇ Avenue of the Americas, New
York, New York, at 10:00 a.m. (local time at the
place of the Primary Closing) on the date of the
consummation of the earlier to occur of the IPO or
the Recapitalization, as the case may be, or at
such other location or on such other date or time
as the Parties hereto shall agree. On the Primary
Closing Date, (i) the CP Closing will occur, (ii)
either the IPO or the Recapitalization will be
consummated, (iii) if the conditions to Primary
Closing specified in Sections 2.1(b) and 2.3(b)
are satisfied or waived prior to the Primary Closing,
the purchase and sale of shares of capital stock
of Sprint contemplated by Section 1.4 shall be
consummated, and (iv) the Parties will take the
following actions:
(a) The Initial Charter Amendment and
(if the Recapitalization is to occur on the
Primary Closing Date) the Subsequent Charter
Amendment shall be filed with the Kansas
Governmental Authorities.
(b) Sprint shall deliver to each of
FT and DT a copy of the Bylaw Amendment and
the resolutions adopted by Sprint's Board
of Directors in connection with the
transactions contemplated by this Agreement,
certified by the Secretary or an Assistant
Secretary of Sprint.
(c) Sprint and the Buyers shall deliver
to each other a certificate to the effect that
the representations and warranties of such Party
are accurate in all material respects on the
Primary Closing Date with the same effect as if
made on the Primary Closing Date (except that
any such statements which are expressly made as
of a particular date shall have been accurate
as of such particular date and except to the
extent contemplated or permitted by this
Agreement or the PCS Restructuring Agreement).
(d) Sprint and the Buyers shall deliver
to each other a certificate that the covenants
and agreements contained herein that are required
to be performed by such Party on or prior to the
Primary Closing have been performed in all
material respects.
(e) if the conditions to the Primary
Closing specified in Sections 2.1(b) and 2.3(b)
are satisfied or waived prior to the Primary
Closing, certificates representing the shares of
Series 3 PCS Stock to be issued to FT at the
Primary Closing shall be delivered by Sprint to
FT.
(f) if the conditions to the Primary
Closing specified in Sections 2.1(b) and 2.3(b)
are satisfied or waived prior to the Primary
Closing, certificates representing the shares of
Series 3 PCS Stock to be issued to DT at the
Primary Closing shall be delivered by Sprint to DT.
(g) if the conditions to the Primary
Closing specified in Sections 2.1(b) and 2.3(b)
are satisfied or waived prior to the Primary
Closing, cash (or, if the IPO does not occur on
the Primary Closing Date, Top Up Notes or a
combination of cash and Top Up Notes) in the
amount of one-half of the purchase price for the
shares of Series 3 PCS Stock being purchased by
FT and DT on the Primary Closing Date shall be
delivered by each of FT and DT, such cash (if
applicable) to be delivered by wire transfer of
immediately available funds to an account
designated by Sprint to FT and DT at least five
Business Days prior to the Primary Closing Date.
(h) The Amended and Restated Stockholders'
Agreement, in form reasonably satisfactory to
each of the Parties shall be executed and
delivered by each Party in the English and
French languages.
(i) The Amended and Restated Registration
Rights Agreement, in form reasonably satisfactory
to each of the Parties, shall be executed and
delivered by each Party in the English and French
languages.
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(j) The Amended and Restated Standstill
Agreement, in form reasonably satisfactory to
each of the Parties, shall be executed and
delivered by each Party in the English and
French languages.
(k) The Amended and Restated DT Investor
Confidentiality Agreement, in form reasonably
satisfactory to each of the Parties, shall be
executed and delivered by DT and Sprint in the
English language.
(l) The Amended and Restated FT Investor
Confidentiality Agreement, in form reasonably
satisfactory to each of the Parties, shall be
executed and delivered by FT and Sprint in the
English and French languages.
All of the actions contemplated to occur at the
Primary Closing shall be deemed to have occurred
simultaneously, and none of such actions shall be
effective unless all of such actions have occurred
or are waived by the necessary Parties.
Notwithstanding anything to the contrary in this
Agreement, (i) the failure of any of the conditions
set forth in Sections 2.1(b) or 2.3(b) to be
satisfied or waived prior to or at the Primary
Closing shall not affect the Buyers' obligations
under Article V to vote (or cause to be voted)
the shares of capital stock of Sprint they own
(directly or indirectly) in favor of the Initial
Charter Amendment, the Subsequent Charter Amendment,
this Agreement, the Amended Other Agreements, the
PCS Restructuring Agreement and the transactions
contemplated hereby and thereby and any other
matters related thereto presented for a vote at
the Stockholders Meeting (including any class vote
of the Class A Holders required thereat or in
connection therewith), and their agreement not to
exercise any disapproval rights which they may have
under the Articles or otherwise with respect to
any such matters, (ii) the failure of any of the
conditions set forth in Sections 2.1(b) or 2.3(b)
to be satisfied or waived prior to or at the Primary
Closing shall not affect the Parties' obligations to
proceed with all of the transactions and deliveries
contemplated to be undertaken at the Primary Closing
(other than the purchase and sale by the Buyers of
the capital stock of Sprint), and such transactions
and deliveries in fact shall proceed if all of the
other conditions to the Primary Closing have been
satisfied or waived, and (iii) if the conditions
to the purchase and sale of the capital stock of
Sprint at the Primary Closing are not satisfied or
waived prior to or at the Primary Closing, unless
this Agreement is otherwise terminated in
accordance with its terms, the purchase and sale
by the Buyers of the capital stock of Sprint
contemplated to be purchased at the Primary Closing
shall occur on the fifth Business Day (unless the
Parties otherwise agree) following the satisfaction
of all such conditions to the purchase and sale of
such capital stock.
Section 1.2. The Secondary Closing. If
Sprint determines to proceed with the IPO after the
Primary Closing Date, the Secondary Closing shall
take place at the offices of King & ▇▇▇▇▇▇▇▇, ▇▇▇▇
Avenue of the Americas, New York, New York, at 10:00
a.m. (local time at the place of the Secondary
Closing) on the date determined by Sprint in
accordance with Section 5.2(d) or at such other
location or on such other date or time as Sprint
may determine. At the Secondary Closing, (i) the
IPO will be consummated, and (ii) if the
conditions to the Secondary Closing specified in
Section 2.4 or 2.5, as applicable, are satisfied
or waived prior to the Secondary Closing, the
purchase
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and sale of shares of capital stock of Sprint
contemplated by Section 1.5 to occur at the
Secondary Closing shall be consummated, and
the Parties will take the following actions:
(a) Sprint shall deliver to the
Buyers the certificate contemplated by
Section 2.4(b)(iv), and the Buyers shall
deliver to Sprint the certificates
contemplated by Section 2.4(c)(iii).
(b) Certificates representing the
shares of Series 3 PCS Stock to be issued
to FT at the Secondary Closing shall be
delivered by Sprint to FT.
(c) Certificates representing the
shares of Series 3 PCS Stock to be issued
to DT at the Secondary Closing shall be
delivered by Sprint to DT.
(d) Cash in the amount of one-half
of the purchase price for such shares of
Series 3 PCS Stock being purchased shall
be delivered by each of FT and DT, such
cash to be delivered by wire transfer of
immediately available funds to an account
designated by Sprint to FT and DT at least
five Business Days prior to the Secondary
Closing Date.
All of the actions contemplated to occur at
the Secondary Closing shall be deemed to have
occurred simultaneously, and none of such actions
shall be effective unless all of such actions
have occurred or are waived by the necessary
Parties. Notwithstanding anything to the contrary
in this Agreement, but subject to the provisions
of Section 6.5, if the conditions to the purchase
and sale of the capital stock of Sprint at the
Secondary Closing are not satisfied or waived
prior to or at the Secondary Closing the purchase
and sale by the Buyers of the capital stock of
Sprint contemplated to be purchased at the
Secondary Closing shall occur on the fifth Business
Day (unless the Parties otherwise agree) following
the satisfaction of all such conditions to the
purchase and sale of the capital stock.
Section 1.3. The Greenshoe Closing. If
the underwriters for the IPO exercise an
over-allotment option in connection with the IPO
(the "Greenshoe") after either the Primary Closing
Date or the Secondary Closing Date, the Greenshoe
Closing shall take place at the offices of King &
▇▇▇▇▇▇▇▇, ▇▇▇▇ Avenue of the Americas, New York,
New York, at 10:00 a.m. (local time at the place
of the Greenshoe Closing) on the date determined by
Sprint in accordance with the terms of any
underwriting agreement entered into by Sprint in
connection with the IPO or at such other location
or on such other date or time as Sprint may
determine. At the Greenshoe Closing, (i) the
over-allotment option granted to the underwriters
will be consummated, and (ii) if the conditions to
the Greenshoe Closing specified in Section 2.4 or
2.5, as applicable, are satisfied or waived prior
to the Greenshoe Closing, the purchase and sale of
shares of capital stock of Sprint contemplated by
Section 1.5 to occur at the Greenshoe Closing shall
be consummated, and the Parties will take the
following actions:
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(a) Sprint shall deliver to the
Buyers the certificate contemplated by Section
2.4(b)(iii), and the Buyers shall deliver to
Sprint the certificates contemplated by
Section 2.4(c)(iii).
(b) Certificates representing the
shares of Series 3 PCS Stock to be issued to
FT at the Greenshoe Closing shall be delivered
by Sprint to FT.
(c) Certificates representing the
shares of Series 3 PCS Stock to be issued to
DT at the Greenshoe Closing shall be delivered
by Sprint to DT.
(d) Cash in the amount of one-half of
the purchase price for such shares of Series 3
PCS Stock being purchased shall be delivered by
each of FT and DT, such cash to be delivered by
wire transfer of immediately available funds to
an account designated by Sprint to FT and DT at
least five Business Days prior to the Greenshoe
Closing Date.
All of the actions contemplated to occur at
the Greenshoe Closing shall be deemed to have
occurred simultaneously, and none of such actions
shall be effective unless all of such actions
have occurred or are waived by the necessary
Parties. Notwithstanding anything to the contrary
in this Agreement, but subject to the provisions
of Section 6.5, if the conditions to the purchase
and sale of the capital stock of Sprint at the
Greenshoe Closing are not satisfied or waived
prior to or at the Greenshoe Closing the purchase
and sale by the Buyers of the capital stock of
Sprint contemplated to be purchased at the
Greenshoe Closing shall occur on the fifth
Business Day (unless the Parties otherwise agree)
following the satisfaction of all such conditions
to the purchase and sale of the capital stock.
Section 1.4. Purchase and Sale of
Shares at the Primary Closing. Upon the terms and
subject to the conditions of this Agreement,
Sprint shall issue, sell and deliver to each of FT
and DT, and each of FT and DT, severally and not
jointly, shall purchase and accept, shares of
Series 3 PCS Stock at the Primary Closing as set
forth below in this Section 1.4:
(a) Subject to Sections 1.6, 1.7, 1.8
and 1.9, FT and DT shall purchase that number
of whole shares (rounded up to the nearest
whole share) of Series 3 PCS Stock sufficient
for FT and DT to have acquired Beneficial
Ownership, in the aggregate, equal to 25% of
the aggregate Voting Power attributable to the
shares of Series 1 PCS Stock, Series 2 PCS
Stock and PCS Preferred Stock issued in the CP
Exchange, the IPO (if the IPO occurs on the
Primary Closing Date), the CP/IPO Top Up
Purchase (if the IPO occurs on the Primary
Closing Date), the PCS Preferred Issuance, and
the CP/FT-DT Top Up Purchase to be effected at
the Primary Closing. Such shares shall be
purchased at the applicable price specified
below in this Section 1.4(a) and
determined at the date of the Primary Closing
as follows:
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(i) if Sprint elects to complete
the IPO on the Primary Closing Date, the
purchase price per share of such shares of
Series 3 PCS Stock shall be the IPO Price
net of any underwriting discounts in
connection with the IPO, which purchase
price shall be paid in cash in immediately
available funds.
(ii) if Sprint elects to complete
the Recapitalization on the Primary Closing
Date and prior to the IPO, then the purchase
price per share of such shares of Series 3
PCS Stock shall be an amount equal to the
Volume Weighted Trading Average of the Series
1 PCS Stock for the period of 20 consecutive
Trading Days following the commencement of
regular way trading in connection with the
Recapitalization, which purchase price shall
be paid by the issuance to Sprint by FT and
DT of Top Up Notes or a combination of cash
and Top Up Notes.
(b) Each of FT and DT agrees to purchase
one-half of the shares of Series 3 PCS Stock to be
purchased pursuant to Section 1.4(a). The purchase
of shares of capital stock by FT and DT pursuant to
this Section 1.4 shall be consummated concurrently,
and no purchase of shares by FT or DT pursuant to
this Section 1.4 shall be made unless and until the
concurrent purchase by the other Party is so effected.
Section 1.5. Purchase and Sale of Shares at the
Secondary and Greenshoe Closings. Upon the terms and
subject to the conditions of this Agreement, if the
Secondary Closing or the Greenshoe Closing occurs, subject
to Sections 1.6, 1.7, 1.8 and 1.9, Sprint shall issue,
sell and deliver to each of FT and DT, and each of
FT and DT, severally and not jointly, shall purchase and
accept, at the Secondary Closing or the Greenshoe Closing,
as the case may be, that number of whole shares (rounded
up to the nearest whole share) of Series 3 PCS Stock
sufficient for FT and DT to have acquired Beneficial
Ownership, in the aggregate, equal to 25% of the aggregate
Voting Power attributable to the shares of Series 1 PCS
Stock and Series 2 PCS Stock issued (i) in the case of the
Secondary Closing, in the IPO (if the IPO occurs on the
Secondary Closing Date), the CP/IPO Top Up Purchase (if
the IPO occurs on the Secondary Closing Date), and the
CP/FT-DT Top Up Purchase to be effected at the Secondary
Closing, and (ii) in the case of the Greenshoe Closing,
in the Greenshoe, the CP/Greenshoe Top Up Purchase and
the CP/FT-DT Top Up Purchase to be effected at the
Greenshoe Closing. Such shares shall be purchased at
the IPO Price net of any underwriting discounts in
connection with the IPO. Each of FT and DT agrees to
purchase one-half of the shares of Series 3 PCS Stock to
be purchased pursuant to this Section 1.5. The purchase
of shares of capital stock by FT and DT pursuant to this
Section 1.5 shall be consummated concurrently, and no
purchase of shares by FT or DT pursuant to this Section
1.5 shall be made unless and until the concurrent
purchase by the other Party is so effected.
Section 1.6. Antidilution. The number of
shares of Series 3 PCS Stock to be purchased by the
Buyers hereunder and the purchase price therefor shall
be adjusted to reflect any stock split, subdivision,
stock dividend, or other reclassification, consolidation
or a combination of the Voting Securities of Sprint
or similar action or transaction after the date hereof,
provided that no adjustment shall be made under this
Section 1.6 in respect of the Recapitalization.
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Section 1.7. Reduction of Purchased Shares.
At any Applicable Closing, the number of shares of Series
3 PCS Stock to be purchased by FT and DT hereunder shall
be reduced by the minimum number of shares, if any,
necessary so that, following such Applicable Closing,
FT and DT and their respective Affiliates shall
Beneficially Own in the aggregate (rounded up to the
nearest whole share) 20% of the sum of (a) the aggregate
number of Votes of Sprint outstanding at that time
(giving effect to any other issuances of Voting
Securities of Sprint to take place concurrently with
such Applicable Closing) and (b) the aggregate number of
Votes represented by the Voting Securities of Sprint
which FT and DT and their respective Affiliates have
committed to purchase from Sprint (but not including
any Voting Securities of Sprint to be purchased by FT
and DT under this Agreement, other than Voting
Securities which have been purchased prior to the
Applicable Closing or which will be purchased at
such Applicable Closing). Any reduction in shares
pursuant to this Section 1.7 shall be borne one-half
by each of FT and DT.
Section 1.8. Effect of Conversion. If after
the date hereof all outstanding shares of Class A Stock
shall have been converted into Non-Class A Common Stock
pursuant to the Class A Provisions, each share of
Series 3 PCS Stock to have been issued by Sprint pursuant
to this Agreement shall instead be issued as one duly
issued, fully paid and nonassessable share of Series 1
PCS Stock.
Section 1.9. Relationship of Purchases Under
this Agreement to CP Top Ups. In connection with the
exercise by FT and DT of their rights under this Agreement
to purchase shares of capital stock of Sprint at each
Applicable Closing, Sprint shall use its reasonable
efforts to coordinate the exercise of purchase rights by
the Cable Partners and FT and DT to avoid a series of
successive exercises of purchase rights triggered by a
single issuance.
Section 1.10. Effect on Stockholders' Agreement.
To the extent FT and DT purchase shares of Sprint capital
stock pursuant to this Agreement in respect of the CP
Exchange, the IPO, the Greenshoe, the CP/FT-DT Top Up,
the CP/IPO Top Up, the CP/Greenshoe Top Up and/or the
issuance of the PCS Preferred Stock, such purchase
shall be in lieu of the Equity Purchase Rights which
FT and DT otherwise would have had under the Stockholders'
Agreement and the Amended and Restated Stockholders'
Agreement as a result of such events, and no such Equity
Purchase Rights as a result of such events may be exercised
under such documents with respect to the transactions
contemplated by this Agreement except to the extent that
FT and DT do not purchase shares of capital stock in respect
of such events because this Agreement is terminated or
the Secondary Closing or Greenshoe Closing is abandoned.
ARTICLE II
CONDITIONS TO CLOSINGS
Section 2.1. Conditions of All Parties to
Primary Closing.
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(a) The respective obligations of each
Party to consummate the transactions contemplated
by this Agreement to occur at the Primary Closing
(other than the purchase and sale of the capital
stock of Sprint to be acquired by FT and DT
hereunder) are subject to the fulfillment at or
prior to the Primary Closing Date of each of the
following conditions, any or all of which may be
waived in whole or in part by the Party being
benefitted thereby, to the extent permitted by
applicable Law:
(i) The matters presented for a
vote of the stockholders of Sprint at the
Stockholders Meeting as contemplated by Section
5.2(b) shall have been duly approved by the
requisite holders of capital stock of Sprint in
accordance with applicable Law and the Articles
and Bylaws of Sprint.
(ii) The CP Closing shall be
consummated simultaneously with the Primary
Closing.
(iii) No preliminary or permanent
injunction or other order, decree or ruling
issued by a Governmental Authority, nor any
statute, rule, regulation or executive order
promulgated or enacted by any Governmental
Authority, shall be in effect that enjoins the
actions to be effected at the Primary Closing
under clauses (a) and (b) and (h) through (m)
only of Section 1.1 of this Agreement or the
transactions contemplated by the PCS
Restructuring Agreement.
(iv) The IPO or the Recapitalization
(whichever Sprint has elected to complete
concurrently with the CP Exchange on the Primary
Closing Date) shall be consummated simultaneously
with the Primary Closing.
(v) The Initial Charter Amendment
and (if the Recapitalization is to occur
concurrently with the CP Exchange) the Subsequent
Charter Amendment shall have been filed with the
Kansas Secretary of State.
(b) The respective obligations of each
Party to consummate the purchase and sale of the
capital stock of Sprint to be purchased by FT and
DT hereunder at the Primary Closing are subject to
the fulfillment at or prior to the Primary Closing
Date of each of the conditions specified in Section
2.1(a) and each of the following additional
conditions, any or all of which may be waived in
whole or in part by the Party being benefitted thereby,
to the extent permitted by applicable Law:
(i) All consents, if any, required from
the Federal Communications Commission in order
to permit the purchase and sale of the shares of
capital stock of Sprint to be purchased by FT
and DT at the Primary Closing shall have been
granted, in each case without any material
limitation, restriction, requirement or condition
on Sprint, FT or DT.
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(ii) FT shall have received all approvals,
if any, of the French minister in charge of
economic affairs and finance (ministre charge
de l'economie et des finances) and all approvals,
if any, of the French minister in charge of posts
and telecommunications (ministre charge des postes
et des telecommunications) required in order to
permit the purchase and sale of the shares of
capital stock of Sprint to be purchased by FT and
DT at the Primary Closing.
(iii) DT shall have received all approvals,
if any, of the Bundeskartellamt required in order
to permit the purchase and sale of the shares of
capital stock of Sprint to be purchased by FT and
DT at the Primary Closing.
(iv) All other material Governmental
Approvals, if any, required in order to permit the
purchase and sale of the shares of capital stock of
Sprint to be purchased by FT and DT at the Primary
Closing shall have been received.
(v) No Change of Control shall have occurred.
Section 2.2. Sprint's Conditions Precedent to the
Primary Closing. The obligations of Sprint to effect the
transactions contemplated by this Agreement to occur at the
Primary Closing (including the purchase and sale of the capital
stock of Sprint to be acquired by FT and DT hereunder at the
Primary Closing) are subject to the satisfaction, on or prior
to the Primary Closing Date, of each of the following conditions,
compliance with which or the occurrence of which may be waived
in whole or in part by Sprint:
(a) The representations and warranties of each
of FT and DT contained in this Agreement shall be accurate
in all material respects on the Primary Closing Date with
the same effect as if made on the Primary Closing Date
(except that any such statements which are expressly made
as of a particular date shall have been accurate as of such
particular date and except to the extent contemplated or
permitted by this Agreement or the PCS Restructuring
Agreement). At the Primary Closing, Sprint shall be
provided with a certificate to such effect from each of FT
and DT, signed by a duly authorized officer thereof.
(b) All covenants and agreements of each of FT
and DT contained in this Agreement and required to be
performed on or prior to the Primary Closing Date shall
have been performed in all material respects on or prior
to the Primary Closing. At the Primary Closing, Sprint
shall be provided with a certificate to such effect from
each of FT and DT, signed by a duly authorized officer
thereof.
(c) There shall not have occurred any change in
applicable Law or any change in facts beyond Sprint's
reasonable control, in either case occurring after the
date hereof, that would prevent King & Spalding from
reaffirming to Sprint on the Primary Closing Date its
opinion described in Section 3.7. For purposes of this
Section 2.2(c), Law also includes any Revenue Ruling,
proposed regulations or official notice of intent to
propose regulations issued by the Internal Revenue
Service, or a ▇▇▇▇ introduced in the House of
Representatives
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or Senate of the United States or legislation proposed
by the United States Treasury Department.
(d) Each of the Amended Other Agreements shall
have been executed by the Buyers which are parties
thereto and delivered to Sprint.
Section 2.3. Conditions Precedent to the Primary
Closing for FT and DT.
(a) The obligations of each of FT and DT to
effect the transactions contemplated by this Agreement
to occur at the Primary Closing (other than the purchase
and sale of the capital stock of Sprint to be acquired
by FT and DT hereunder at the Primary Closing) are
subject to the satisfaction, on or prior to the Primary
Closing Date, of the following conditions, compliance
with which or the occurrence of which may be waived in
whole or in part by FT and DT:
(i) All representations and warranties of
Sprint (other than the representations and
warranties set forth in Sections 3.6, 3.7 and 3.8)
shall be accurate in all material respects on the
Primary Closing Date with the same effect as if
made on the Primary Closing Date (except that any
such statements which are expressly made as of a
particular date shall have been accurate as of
such particular date and except to the extent
contemplated or permitted by this Agreement or the
PCS Restructuring Agreement). At the Primary
Closing, FT and DT shall be provided with a
certificate to such effect from Sprint, signed by
a duly authorized officer thereof.
(ii) All covenants and agreements of Sprint
contained in this Agreement and required to be
performed on or prior to the Primary Closing Date
shall have been performed in all material respects
on or prior to the Primary Closing. At the Primary
Closing, FT and DT shall be provided with a
certificate to such effect from Sprint, signed by
a duly authorized officer thereof.
(iii) Sprint shall have amended its Articles
in accordance with the Initial Charter Amendment and
(if the Recapitalization is to occur on the Primary
Closing Date) the Subsequent Charter Amendment.
(iv) Sprint shall have duly adopted the
Bylaw Amendment and such amended terms shall be
in full force and effect.
(v) Each of the Amended Other Agreements
shall have been executed by Sprint and delivered to
the Buyers which are parties thereto.
(vi) The Board of Directors shall have taken
appropriate action so that the provisions of Kan.
Stat. ▇▇▇. Section 17-12,101 (the "Business
Combination Statute") restricting "business
combinations" with "interested stockholders"
(each as
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defined in Kan. Stat. ▇▇▇. Section 17-12,100)
will not apply to FT, DT or any Person who as of the
date hereof is an Affiliate of FT or DT with respect
to the purchase and sale of shares of capital stock
of Sprint pursuant to and permitted by this Agreement
and the Amended Other Agreements.
(vii) The Series 1 FON Stock and Series 1 PCS
Stock issuable upon conversion of the Class A Stock
to be issued pursuant to this Agreement shall have
been approved for listing on the New York Stock
Exchange, or if not so approved, shall have been
approved for listing on the American Stock Exchange
or approved for quotation on the National Association
of Securities Dealers Automated Quotations National
Market System subject to official notice of issuance.
(viii) Each of the Buyers shall have received
opinions dated as of the Primary Closing Date, from
counsel to the Company reasonably satisfactory to the
Buyers, in form reasonably satisfactory to the Parties.
(b) The obligations of each of FT and DT to effect
the purchase and sale of the capital stock of Sprint to be
acquired by FT and DT hereunder at the Primary Closing are
subject to the satisfaction, on or prior to the Primary
Closing Date, of each of the conditions specified in Section
2.3(a) and each of the following conditions, compliance with
which or the occurrence of which may be waived in whole or
in part by FT and DT:
(i) The representations and warranties of
Sprint set forth in Sections 3.6, 3.7 and 3.8 shall be
accurate in all material respects on the Primary
Closing Date with the same effect as if made on the
Primary Closing Date (except that any such statements
which are expressly made as of a particular date shall
have been accurate as of such particular date and
except to the extent contemplated or permitted by this
Agreement or the PCS Restructuring Agreement). At the
Primary Closing, FT and DT shall be provided with a
certificate to such effect from Sprint, signed by a
duly authorized officer thereof.
(ii) There shall not have occurred after the date
hereof any change in applicable Law that would cause the
Recapitalization to be deemed taxable to FT or DT under
French or German tax law.
(iii) Unless FT and DT have otherwise consented in
writing, the PCS Restructuring Agreement shall not have
been amended in a manner which fundamentally changes the
transactions contemplated by the PCS Restructuring
Agreement or which is materially adverse to FT and DT.
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Section 2.4. Conditions Precedent to Secondary and
Greenshoe Closings During the Anticipated IPO Period.
(a) If the IPO occurs within 180 days following the
CP Exchange, the respective obligations of each Party to
consummate the transactions contemplated by this Agreement
to occur at each of the Secondary Closing and the Greenshoe
Closing are subject to the fulfillment at or prior to each of
the Secondary Closing Date and Greenshoe Closing Date,
respectively, of the following conditions, which may be waived
in whole or in part by the Party being benefitted thereby, to
the extent permitted by applicable Law:
(i) No preliminary or permanent injunction or
other order, decree or ruling issued by a Governmental
Authority, nor any statute, rule, regulation or executive
order promulgated or enacted by any Governmental
Authority, shall be in effect that enjoins the
consummation of the transactions to be effected at the
Secondary Closing or the Greenshoe Closing, as the case
may be.
(ii) All material Governmental Approvals, if any,
required in order to permit the purchase and sale of the
shares of capital stock of Sprint to be purchased by FT
and DT at the Secondary Closing or the Greenshoe Closing,
as the case may be, shall have been received.
(b) If the IPO occurs within 180 days following the CP
Exchange, the obligation of each Buyer to consummate the
transactions contemplated hereby at a Secondary Closing or
Greenshoe Closing is subject to the fulfillment of each of
the following conditions on or prior to the date of such
Secondary Closing or Greenshoe Closing:
(i) The representations and warranties of
Sprint set forth in Sections 3.1, 3.2(a), 3.3, 3.4 and
3.5 shall be true and correct in all material respects
at and as of the date hereof and at and as of the date
of such Secondary Closing or Greenshoe Closing, as the
case may be, as if such representations and warranties
were made at and as of such date except (x) with respect
to representations and warranties that relate solely to
a date prior to such date, and were true and correct in
all material respects on such prior date, and (y) to
the extent contemplated or permitted by this Agreement,
the PCS Restructuring Agreement, the Amended Other
Agreements or the Articles.
(ii) The first two sentences of Section 3.6(a)
(as to SEC Documents filed prior to the Applicable
Closing) and Section 3.7 (but in the case of Section
3.7 only as to changes prior to the Applicable Closing,
but after the later of (x) the end of the quarter
covered by the last Quarterly Report on Form 10-Q of
Sprint filed prior to the Applicable Closing, and (y)
the end of the year covered by the last Annual Report
on Form 10-K of Sprint filed prior to the Applicable
Closing) shall be true and correct in all material
respects at and as of the date of the Secondary
Closing or the
-▇▇-
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, as the case may be, except
to the extent such failure to be true and correct
does not relate to, and is not reasonably likely
to relate to, a material adverse change in the
business, operations, results of operations,
financial condition, assets or liabilities of
Sprint compared to the last to be filed prior to
the Applicable Closing of the Annual Report on
Form 10-K of Sprint or the Quarterly Report on
Form 10-Q of Sprint.
(iii) Sprint shall have performed and complied
in all material respects with its obligations under
Section 5.6 of this Agreement; Article FIFTH of the
Articles (to the extent such Article relates to the
rights of the holders of Class A Stock); the Class A
Provisions; and Articles III, IV, V and VI, and
Sections 7.1, 7.4, 7.8, 7.10 and 7.11 of the
Stockholders' Agreement and the Amended and
Restated Stockholders' Agreement.
(iv) Sprint shall have delivered to the
Buyers a certificate, dated the date of such
Secondary Closing or Greenshoe Closing, as the case
may be, signed by a duly authorized senior officer
of Sprint, certifying that the conditions specified
in Sections 2.4(b)(i) and (ii) have been fulfilled.
(v) No Change of Control shall have occurred.
(vi) There shall not have occurred after the
date hereof any change in applicable Law that would
cause the Recapitalization to be deemed taxable to
FT or DT under French and German tax law.
(c) The obligation of Sprint to consummate the
transactions contemplated hereby at a Secondary Closing
or Greenshoe Closing is subject to the fulfillment of
each of the following conditions on or prior to the date
of such Secondary Closing or Greenshoe Closing:
(i) The representations and warranties of
the Buyers set forth in Sections 4.1(a), 4.1(b),
4.1(d), 4.1(g), 4.2(a), 4.2(b), 4.2(d) and 4.2(g)
shall be true and correct in all material respects
at and as of the date hereof and at and as of the
date of such Secondary Closing or Greenshoe
Closing, as the case may be, as if such
representations and warranties were made at and
as of such date except (x) with respect to
representations and warranties that relate solely
to a date prior to such date, and were true and
correct in all material respects on such prior
date, and (y) to the extent contemplated or
permitted by this Agreement, the PCS Restructuring
Agreement, the Amended Other Agreements or the
Articles.
(ii) Each of the Buyers shall have
performed and complied in all material respects
with its obligations under Article I of this
Agreement, Article II and Section 7.5 of the
Stockholders' Agreement and the Amended and
Restated Stockholders' Agreement, Sections 2.1,
3.1 and 3.2(b) of the Standstill Agreement and
the
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Amended and Restated Standstill Agreement,
the Investor Confidentiality Agreements and the
Amended and Restated Investor Confidentiality
Agreements.
(iii) Each of the Buyers shall have
delivered to Sprint a certificate, dated the
date of such Secondary Closing or Greenshoe
Closing, as the case may be, signed by a duly
authorized senior officer of such Buyer,
certifying that the conditions specified in
Sections 2.4(c)(i) and (ii) have been fulfilled.
(d) Except as set forth in this Section 2.4,
no breach of the representations, warranties, covenants
or agreements contained in this Agreement shall affect
the obligations of the Parties to consummate the purchase
and sale of capital stock of Sprint at any Secondary
Closing or Greenshoe Closing, provided that this
sentence shall not affect any other rights, liabilities,
duties or obligations of the Parties arising under this
Agreement as a result of such breach.
Section 2.5. Conditions Precedent to Secondary and
Greenshoe Closings After the Anticipated IPO Period.
(a) If the IPO occurs after 180 days following
the CP Exchange, the respective obligations of each
Party to consummate the transactions contemplated by
this Agreement to occur at each of the Secondary
Closing and the Greenshoe Closing are subject to the
fulfillment at or prior to each of the Secondary
Closing Date and Greenshoe Closing Date, respectively,
of the following conditions which may be waived in whole
or in part by the Party being benefitted thereby, to
the extent permitted by applicable Law:
(i) No preliminary or permanent injunction
or other order, decree or ruling issued by a
Governmental Authority, nor any statute, rule,
regulation or executive order promulgated or
enacted by any Governmental Authority, shall be in
effect that enjoins the consummation of the
transactions to be effected at the Secondary
Closing or the Greenshoe Closing, as the case
may be.
(ii) All other material Governmental
Approvals, if any, required in order to permit the
purchase and sale of the shares of capital stock
of Sprint to be purchased by FT and DT at the
Secondary Closing or the Greenshoe Closing, as the
case may be, shall have been received.
(b) If the IPO occurs after 180 days following
the CP Exchange, in addition to the conditions set forth
in Section 2.4(b), the obligations of the Buyers to
consummate the transactions contemplated by this
Agreement to occur at each of the Secondary Closing and
the Greenshoe Closing are subject to the fulfillment
at or prior to each of the Secondary Closing Date and
Greenshoe Closing Date, respectively, of the following
conditions, which may be waived in whole or in part by
the Buyers, to the extent permitted by applicable Law:
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(i) The representations and warranties of
Sprint contained in this Agreement shall be
accurate in all material respects on the date
of the Applicable Closing with the same effect
as if made on the date of the Applicable Closing
(except that any such statements which are
expressly made as of a particular date shall have
been accurate as of such particular date and
except to the extent contemplated or permitted by
this Agreement or the PCS Restructuring Agreement).
At the Applicable Closing, the Buyers shall be
provided with a certificate to such effect from
Sprint, signed by a duly authorized officer
thereof.
(ii) There shall not have occurred after
the date hereof any change in applicable Law that
would cause the Recapitalization to be deemed
taxable to FT or DT under French and German tax
law.
(c) If the IPO occurs after 180 days following
the CP Exchange, in addition to the conditions set forth
in Section 2.4(c), the obligations of Sprint to consummate
the transactions contemplated by this Agreement to occur
at each of the Secondary Closing and the Greenshoe
Closing are subject to the fulfillment at or prior to
each of the Secondary Closing Date and Greenshoe Closing
Date, respectively, of the following condition, which
may be waived in whole or in part by Sprint, to the
extent permitted by applicable Law:
The representations and warranties of each of FT and
DT contained in this Agreement shall be accurate in all
material respects on the date of the Applicable Closing with
the same effect as if made on the date of the Applicable
Closing (except that any such statements which are expressly
made as of a particular date shall have been accurate as of
such particular date and except to the extent contemplated
or permitted by this Agreement or the PCS Restructuring
Agreement). At the Applicable Closing, Sprint shall be
provided with a certificate to such effect from each of FT
and DT, signed by a duly authorized officer thereof.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF SPRINT
Sprint represents and warrants to each of FT and DT
as follows:
Section 3.1. Organization, Qualification, Etc.
Sprint is a corporation duly organized, validly existing and
in good standing under the laws of the State of Kansas.
Sprint has all requisite corporate power and authority to:
(a) enter into this Agreement, the Amended Other Agreements
and the letter agreement dated as of the date hereof among
the Parties hereto identifying certain documents as being
in form reasonably satisfactory to the Parties (the
"Letter Agreement"), (b) subject to approval by the
stockholders of Sprint and to the filing of the Proposed
Charter Amendments, issue and sell shares of Series 3 PCS
Stock to the Buyers pursuant to this Agreement and comply
with its obligations under this Agreement, each
Amended Other Agreement and the
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Letter Agreement, and (c) own, lease and operate its
properties and assets and to carry on in all material
respects its business as now being conducted and proposed
to be conducted as shall be described in the Proxy
Statement.
Section 3.2. Capital Stock and Other Matters.
(a) Schedule 3.2 sets forth the authorized
capital stock of Sprint and the number of each class
of shares issued and outstanding as of March 31, 1998.
No bonds, debentures, notes or other indebtedness of
Sprint or any of its Subsidiaries having the right to
vote (or convertible into securities having the right
to vote) on any matters on which holders of shares of
capital stock of Sprint may vote are issued and
outstanding on the date hereof. All of the issued
and outstanding shares of Sprint's capital stock are
validly issued, fully paid and nonassessable. No
holder of the outstanding shares of Sprint's capital
stock is entitled to preemptive rights with respect to
any issuance of shares of Class A Stock.
(b) Except as set forth in Schedule 3.2, no
class of capital stock of Sprint is entitled to
preemptive rights. Except as set forth in Schedule
3.2, there are no stockholder agreements, voting
trusts or other Contracts to which Sprint is a party
or by which it is bound relating to the voting or
transfer of any shares or units of any Voting
Securities of Sprint.
Section 3.3. Validity of Shares.
(a) Subject to obtaining the approval of the
stockholders of Sprint specified in Section 5.2(b)
hereof and to the filing of the Proposed Charter
Amendments with the appropriate Kansas Governmental
Authorities, (i) when the shares of Series 3 PCS
Stock are issued and delivered, in each case against
payment therefor at each Applicable Closing as
provided hereby (including cash in an amount at least
equal to the aggregate par value of the shares), each
such share shall be validly issued, free of any Lien
(other than any Lien arising due to the action or
inaction of any of the Buyers), fully paid and a
nonassessable share of capital stock of Sprint and
(ii) upon the filing of the Proposed Charter Amendments,
each share of Class A Common Stock into which the Class
A Common Stock held by FT is automatically reclassified
and changed, and each share of Class A Common
Stock--Series DT into which the Class A Common Stock
held by DT is automatically reclassified and changed,
will be validly issued, free of any Lien (other than
any Lien arising due to the action or inaction of any
of the Buyers), fully paid and a nonassessable share
of capital stock of Sprint.
(b) Subject to obtaining the approval of the
stockholders of Sprint specified in Section 5.2(b)
hereof and to the filing of the Proposed Charter
Amendments with the appropriate Kansas Governmental
Authorities, upon the filing of the Proposed Charter
Amendments:
(i) When shares of Series 3 FON Stock,
Series 3 PCS Stock, Series 1 FON Stock or Series
1 PCS Stock, as applicable, are delivered upon
sale or exchange
-16-
of interests in the Class A Common Stock or
Class A Common Stock--Series DT, each such
share will be validly issued, free of any
Lien (other than any Lien arising due to the
action or inaction of any of the Buyers),
fully paid and a nonassessable share of capital
stock of Sprint;
(ii) The holders of Class A Common
Stock shall, at any time, be entitled to all
of the rights and privileges pertaining to the
ownership of Series 1 FON Stock and Series 1
PCS Stock to the extent such Class A Common
Stock represents, at such time, Shares Issuable
With Respect To The Class A Equity Interest
In the FON Group and Shares Issuable With Respect
To The Class A Equity Interest In The PCS Group
(as each such term is defined in the Proposed
Charter Amendments); and
(iii) Each share of Sprint capital stock
into which any share of Class A Stock is
reclassified upon a recapitalization in accordance
with ARTICLE SIXTH, Section 1.2(e) of the
Subsequent Charter Amendment will be validly
issued, free of any Lien (other than any Lien
arising due to the action or inaction of any
of the Buyers), fully paid and a nonassessable
share of capital stock of Sprint.
Section 3.4. Corporate Authority; No Violation.
The execution, delivery and performance of this Agreement,
each Amended Other Agreement and the Letter Agreement, and
the consummation of the transactions contemplated hereby
and thereby (including, without limitation, the issuance
and sale of Sprint's capital stock) have been duly
authorized by all requisite corporate action on the part
of Sprint, subject to obtaining the approval of the
stockholders of Sprint specified in Section 5.2 hereof
and to the filing of the Proposed Charter Amendments with
the appropriate Kansas Governmental Authorities and assuming
that, with respect solely to those provisions of the
Stockholders' Agreement, the Amended and Restated
Stockholders' Agreement, the Articles and the Proposed
Charter Amendments that require explicitly the receipt
of Continuing Director approval for the performance of
obligations or consummation of transactions on the part
of Sprint thereunder, Continuing Director approval is
obtained in the manner provided therein. Upon the
execution and delivery by Sprint of this Agreement,
each Amended Other Agreement and the Letter Agreement,
each such agreement will constitute a legal, valid and
binding agreement of Sprint, enforceable against Sprint
in accordance with its terms.
Section 3.5. No Conflict; No Default. Neither
the execution, delivery and performance by Sprint of this
Agreement, each Amended Other Agreement and the Letter
Agreement, the adoption of the Bylaws Amendment and the
adoption and filing of the Proposed Charter Amendments nor
the consummation by Sprint of the transactions contemplated
hereby or thereby will: (i) subject to the approval of the
stockholders of Sprint contemplated by Section 5.2 hereof
and the filing of the Proposed Charter Amendments with the
appropriate Kansas Governmental Authorities, violate or
conflict with any provision of the Articles or Bylaws,
assuming that, with respect solely to those provisions of
the Stockholders' Agreement, the Amended and Restated
Stockholders' Agreement and the Proposed Charter
Amendments that require explicitly the receipt of
Continuing Director approval for the performance of
obligations or consummation of transactions on the
part of Sprint hereunder or thereunder, Continuing
Director approval is obtained in the
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manner provided herein or therein; (ii) require any
Governmental Approvals or Third Party Approvals, except
(x) as set forth in Schedule 3.5 or (y) where the failure
to so obtain, make or file such Governmental Approvals
or Third Party Approvals, individually or in the aggregate,
is not reasonably likely to have a Material Adverse Effect
on Sprint and its Subsidiaries taken as a whole or
adversely affect in any material respect Sprint's
ability to perform its obligations hereunder or under
the Amended Other Agreements or the Letter Agreement;
(iii) except as set forth in Schedule 3.5, result in a
default (or an event that, with notice or lapse of time
or both, would become a default) or give rise to any
right of termination by any third party, cancellation,
amendment or acceleration of any obligation or the loss
of any benefit under, or result in the creation of any
Lien on any of the assets or properties of Sprint or
any of its Subsidiaries pursuant to, any Contract to
which Sprint or any of its Subsidiaries is a party
or by which Sprint or any of its Subsidiaries or any
of their respective assets or properties is bound,
except for any such defaults, terminations,
cancellations, amendments, accelerations, losses, or
Liens that, individually or in the aggregate, are
not reasonably likely to have a Material Adverse Effect
on Sprint and its Subsidiaries taken as a whole or
adversely affect in any material respect Sprint's
ability to perform its obligations hereunder or under
the Amended Other Agreements or the Letter Agreement;
or (iv) except as set forth in Schedule 3.5, violate
or conflict with any Law applicable to Sprint or any
of its Subsidiaries, or any of the properties,
businesses, or assets of any of Sprint or any of its
Subsidiaries, except violations and conflicts that,
individually or in the aggregate, are not reasonably
likely to have a Material Adverse Effect on Sprint
and its Subsidiaries taken as a whole or adversely
affect in any material respect Sprint's ability to
performs its obligations hereunder or under the
Amended Other Agreements or the Letter Agreement.
Section 3.6. Sprint Reports and Financial
Statements.
(a) Sprint has previously made available
to FT and DT complete and correct copies of each:
(i) annual report on Form 10-K for Sprint; (ii)
quarterly report on Form 10-Q for Sprint; (iii)
definitive proxy statement for Sprint; (iv) current
report on Form 8-K for Sprint; and (v) other form,
report, schedule and statement, in the case of each
of clauses (i), (ii), (iii), (iv) and (v) filed by
Sprint with the SEC under the Exchange Act since
January 1, 1997 (collectively, the "SEC
Documents"). As of their respective dates, each
of the SEC Documents complied (or will comply) in
all material respects with the requirements of the
Exchange Act to the extent applicable to such SEC
Document, and none of such SEC Documents (as of
their respective dates) contained (or will contain)
an untrue statement of a material fact or omitted
(or will omit) to state a material fact required
to be stated therein or necessary to make the
statements therein, in the light of the
circumstances under which they were made, not
misleading, except as the same was corrected or
superseded in a subsequent document duly filed with
the SEC, that has been delivered to the Buyers.
Since January 1, 1997, Sprint has timely filed all
reports and registration statements and made all
filings required to be filed under the Exchange
Act with the SEC under the rules and regulations of
the SEC.
(b) The audited consolidated financial
statements and unaudited consolidated interim
financial statements included in the SEC Documents
(including any related notes)
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fairly present the financial position of Sprint
and its consolidated Subsidiaries as of the
dates thereof and the results of operations and
changes in cash flows for the periods specified,
subject, where appropriate, to normal year-end
audit adjustments, in each case in accordance
with past practice and GAAP applied on a
consistent basis during the periods involved
(except as otherwise stated therein). Since
March 31, 1998, Sprint and its Subsidiaries
have incurred no liability or obligation of any
nature (whether accrued, absolute, contingent
or otherwise) other than liabilities and
obligations that, individually and in the
aggregate, are not reasonably likely to have
a Material Adverse Effect on Sprint and its
Subsidiaries taken as a whole or materially
and adversely affect Sprint's ability to
perform its obligations hereunder or under
the Amended Other Agreements or the Letter
Agreement.
Section 3.7. Absence of Certain Changes
or Events. Since March 31, 1998 there has not been,
occurred or arisen any change in the business,
financial condition or results of operations of
Sprint and its Subsidiaries taken as a whole, other
than as a result of changes in general business
conditions or legal or regulatory changes affecting
the U.S. telecommunications industry generally
(including the effect on competition resulting
therefrom) or actions by competitors, having a
Material Adverse Effect on Sprint and its
Subsidiaries taken as a whole or any change that
adversely affects in any material respect Sprint's
ability to perform its obligations hereunder or
under the Amended Other Agreements or the Letter
Agreement.
Section 3.8. Litigation. There is no
Proceeding pending or, to the best of Sprint's
Knowledge, threatened against or relating to Sprint
or any of its Subsidiaries at law or in equity that,
individually or in the aggregate, is reasonably
likely to have a Material Adverse Effect on Sprint
and its Subsidiaries taken as a whole or affect
adversely in any material respect Sprint's ability
to perform its obligations hereunder or under the
Amended Other Agreements or the Letter Agreement.
There is no judgment, decree, injunction, rule or
order of any Governmental Authority outstanding
against Sprint or any of its Subsidiaries that,
individually or in the aggregate, is reasonably
likely to have a Material Adverse Effect on Sprint
and its Subsidiaries taken as a whole or adversely
affect in any material respect Sprint's ability to
perform its obligations hereunder or under the
Amended Other Agreements or the Letter Agreement.
Section 3.9. Proxy Statement; Other
Information.
(a) None of the information included,
or incorporated by reference, in the Proxy
Statement or any amendment or supplement
thereto, will at the time of the mailing of
the definitive Proxy Statement, and at the
time of the Stockholders Meeting, contain
any untrue statement of a material fact or
omit to state any material fact required to
be stated therein or necessary in order to
make the statements therein, in the light
of the circumstances under which they are
made, not misleading, provided that the
foregoing shall not apply to any investment
bank's fairness opinion included therein
and that no representation is made by Sprint
with respect to (i) information provided by
FT, DT or any of their Affiliates in
writing specifically for inclusion, or
incorporation by reference, in the Proxy
Statement, or (ii) any representations or
warranties made by FT or DT in any agreement
that is included as a schedule or exhibit
to the Proxy Statement. The Proxy Statement,
at the time of the mailing
-19-
and at the time of the Stockholders Meeting,
will comply in all material respects with
the provisions of the Exchange Act.
(b) All documents that Sprint is
responsible for filing with any Governmental
Authority in connection with the transactions
contemplated hereby other than those described
in Section 3.9(a) have complied and will comply
in all material respects with applicable Law.
All information supplied or to be supplied by
Sprint in any document filed with any
Governmental Authority in connection with the
transactions contemplated hereby or by the
Amended Other Agreements will be, at the time
of filing, true and correct in all material
respects, except where the failure to be true
and correct, individually or in the aggregate,
would not be reasonably likely to have a
Material Adverse Effect on Sprint and its
Subsidiaries taken as a whole and would not
adversely affect in any material respect the
consummation of the transactions contemplated
by this Agreement or any Amended Other
Agreement or the Letter Agreement.
Section 3.10. Certain Tax Matters. To the
best of Sprint's Knowledge and belief, it is
reasonable to assert that Sprint is not a United
States Real Property Holding Corporation, as that
term is defined under Section 897 of the Code and the
regulations promulgated thereunder.
Section 3.11. Amendments to the Rights
Agreement. The Board of Directors has taken, or
prior to the Primary Closing will take, all necessary
action to amend the Rights Agreement to provide that
the ownership by FT, DT and their respective Affiliates
and Associates of all of the Voting Securities
permitted to be owned by them under Sections 2.1(a)(i)
and 2.3 of the Amended and Restated Standstill
Agreement (but not Sections 2.1(a)(ii) or 2.2
thereof or Section 2.3 thereof to the extent based
upon an applicable Percentage Limitation (as defined
in the Amended and Restated Standstill Agreement) as
determined by Section 2.1(a)(ii) or 2.2 thereof)
will not result in FT, DT or any of their respective
Affiliates or Associates (as such terms are defined
in the Rights Agreement) being deemed an Acquiring
Person (as such term is defined in the Rights
Agreement) or result in the occurrence of a Stock
Acquisition Date, Distribution Date, Section
11(a)(ii) Event or Section 13 Event (as such terms
are defined in the Rights Agreement).
Section 3.12. Other Registration Rights.
Sprint has not granted, and has not agreed to grant,
any demand or incidental registration rights to any
Person other than (a) rights granted pursuant to
the Registration Rights Agreement and to be granted
pursuant to the Amended and Restated Registration
Rights Agreement, (b) rights to be granted to the
Cable Partners pursuant to the Cable Partners
Registration Rights Agreement, and (c) rights
issued after the date hereof that will not
adversely affect the registration rights to be
granted to the Buyers in the Amended and Restated
Registration Rights Agreement.
Section 3.13. Takeover Statutes. The
Board of Directors has taken appropriate action
so that the provisions of the Business Combination
Statute will not, prior to the termination of this
Agreement, apply to FT, DT or any Person who as of
the date hereof is an Affiliate of FT or DT. The
ownership by FT and DT and any subsidiary of FT
and/or DT identified in the Acquiring Person
Statement of shares of Sprint's capital stock
representing in the aggregate less than one-third
of the
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voting power of Sprint (assuming for purposes
of the Kansas Control Share Acquisitions Statute
that none of FT, DT, any subsidiary of FT and/or
DT identified in the Acquiring Person Statement,
or their respective affiliates and associates (as
each such term is defined in the Kansas Control
Share Acquisitions Statute), acquires any Voting
Securities other than as contemplated or permitted
by the Original Investment Agreement, any Initial
Other Agreement, this Agreement, any Amended Other
Agreement or the Articles, or owned, directly or
indirectly, or had or exercised the power to vote
or direct the vote of, in each case alone or as
part of a group, any Voting Securities as of the
date of this Agreement or at the time of the vote
contemplated by Section 5.2 other than as set
forth in Sections 4.1(f) and 4.2(f)) will not
result in a loss of voting rights with respect
to such shares due to the Kansas Control Share
Acquisitions Statute. No other "fair price,"
"moratorium," "control share acquisition,"
"business combination," "shareholder protection"
or similar anti-takeover statute or regulation
enacted under the applicable Laws of any state of
the United States of America will apply to this
Agreement or any Amended Other Agreement, or the
transactions contemplated hereby or thereby
(assuming that none of FT, DT and their respective
Affiliates Beneficially Own any Voting Securities
as of the date hereof other than as set forth in
Sections 4.1(f) and 4.2(f) and that none of such
Persons acquires any Voting Securities other than
as contemplated or permitted by this Agreement,
any Initial Other Agreement, any Amended Other
Agreement or the Articles) except for statutes or
regulations the failure of Sprint with which to
comply would not have a material adverse effect on
(a) the transactions contemplated in this Agreement
or any Amended Other Agreement, (b) the ability of
the Buyers to exercise fully their rights under
this Agreement or any Amended Other Agreement or
the Articles, or (c) the intrinsic value of an
investment in Sprint's equity securities (provided
that a change in the market price of Sprint's
equity securities shall not, in and of itself,
be deemed to have a material adverse effect on
the intrinsic value of an investment in Sprint's
equity securities).
Section 3.14. Vote Required; Board
Recommendation. The only votes of the stockholders
of Sprint required under Kansas law and the Articles
and Bylaws to approve (a) the Proposed Charter
Amendments and (b) such other matters, if any,
related thereto or to this Agreement as Sprint may
determine to submit to the stockholders of Sprint,
are (i) the affirmative vote of the holders of a
majority of the outstanding shares of the Common
Stock, the Class A Common Stock, the Preferred
Stock-First Series, the Preferred Stock-Second
Series and the Preferred Stock-Fifth Series of
Sprint, voting together as a single class, (ii)
the affirmative vote of the holders of a
majority of the outstanding shares of the Common
Stock and Class A Common Stock, voting as a single
class, and (iii) the approval (or the failure to
disapprove) of the Class A Common Stock, voting
or taking action as a class. The Board of
Directors has determined that the proposals
contemplated by Section 5.2(b) are advisable
and in the best interests of the stockholders
of Sprint.
Section 3.15. Sprint Board Action.
Prior to the date hereof, the Board of Directors
of Sprint has approved (i) the Bylaw Amendment
and (ii) the Management and Allocation Policies,
each to be effective at the Primary Closing.
Section 3.16. King & Spalding Opinion.
On the date hereof, Sprint has received from
King & Spalding its opinion to the effect that
(i) the Recapitalization will constitute a
recapitalization within the meaning of Section
368(a)(1)(E) of the Code, (ii) any outstanding
stock
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which is designated as common stock of
Sprint in Sprint's Articles of Incorporation
will constitute voting stock of Sprint for
federal income tax purposes, and (iii) except
with respect to cash paid in lieu of fractional
shares, if any, the holders of such stock of
Sprint will not recognize income, gain or loss
in and as a result of the Recapitalization.
In rendering such opinion, King & Spalding
may receive and rely upon representations
contained in certificates of Sprint in form
and substance reasonably acceptable to
King & Spalding.
Section 3.17. PCS Restructuring
Agreement. A complete and correct copy of the
PCS Restructuring Agreement has been provided
to the Buyers.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF THE BUYERS
Section 4.1. Representations and
Warranties of FT. FT represents and warrants
to Sprint as follows:
(a) FT is a societe anonyme validly
existing under the laws of the Republic of
France, and has all requisite power and
authority to: (i) enter into this Agreement,
each of the Amended Other Agreements and the
Letter Agreement, (ii) purchase the shares
of Sprint's capital stock as provided herein,
and in the Amended and Restated Stockholders'
Agreement and the Articles as amended by the
Proposed Charter Amendments, and (iii) comply
with its obligations under this Agreement,
each Amended Other Agreement and the Letter
Agreement.
(b) (i) The execution, delivery and
performance of this Agreement, each Amended
Other Agreement and the Letter Agreement, and
the consummation of the transactions
contemplated hereby and thereby, have been
duly authorized by all requisite action on
the part of FT. Upon the execution and
delivery by FT of this Agreement, each
Amended Other Agreement and the Letter
Agreement, each such agreement will
constitute a legal, valid and binding
agreement of FT, enforceable against FT
in accordance with its terms.
(ii) Neither the execution, delivery
and performance by FT of this Agreement,
each Amended Other Agreement or the Letter
Agreement, nor the consummation by FT of
the transactions contemplated hereby or
thereby, will: (w) violate or conflict
with any provision of the FT Law and
Decrees; (x) require any Governmental
Approvals or Third Party Approvals,
except where the failure to so obtain,
make or file such Governmental Approvals
or Third Party Approvals is not reasonably
likely to affect adversely in any material
respect FT's ability to perform its
obligations hereunder or under the Amended
Other Agreements or the Letter Agreement;
(y) result in a default (or an event that,
with notice or lapse of time or both,
would become a default) under any Contract
to which FT or any of its Subsidiaries is a
party, or by which FT or any of its
Subsidiaries or any of their
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respective assets or properties is bound,
except for any such defaults that,
individually or in the aggregate, are not
reasonably likely to affect adversely in
any material respect FT's ability to
perform its obligations hereunder or
under the Amended Other Agreements or the
Letter Agreement; or (z) violate or conflict
with Law applicable to FT or any of its
Subsidiaries, or any of the properties,
businesses, or assets of FT or any of its
Subsidiaries, except violations and conflicts
that, individually or in the aggregate, are
not reasonably likely to affect adversely in
any material respect FT's ability to perform
its obligations hereunder or under the
Amended Other Agreements or the Letter
Agreement.
(c) There is no Proceeding pending
or, to the best of FT's Knowledge, threatened
against or relating to FT or any of its
Subsidiaries at law or in equity that,
individually or in the aggregate, is
reasonably likely to affect adversely in any
material respect FT's ability to perform its
obligations hereunder or under the Amended
Other Agreements or the Letter Agreement.
There is no judgment, decree, injunction,
rule or order of any Governmental Authority
outstanding against FT or any of its
Subsidiaries that, individually or in the
aggregate, is reasonably likely to adversely
affect in any material respect FT's ability to
perform its obligations hereunder or under the
Amended Other Agreements or the Letter
Agreement.
(d) FT is purchasing the shares of
Sprint's capital stock to be purchased by it
pursuant to this Agreement and the Amended and
Restated Stockholders' Agreement for its own
account for investment, and not with a view
to the distribution of such shares or any part
thereof. FT is a party to no Contract with any
Person for resale of such shares in connection
with such a distribution. FT acknowledges that
the offering of the shares pursuant to this
Agreement and the Amended and Restated
Stockholders' Agreement will not be registered
under the Securities Act or under any state
securities or blue sky law or the securities
laws of any other country, on the grounds
(with respect to the Securities Act and such
state securities or blue sky laws) that the
offering and sale of shares of capital stock
contemplated by this Agreement and the Amended
and Restated Stockholders' Agreement are exempt
from registration pursuant to exceptions
available under such laws, and that Sprint's
reliance upon such exemptions is predicated upon
FT's representations set forth in this Agreement
and the Amended and Restated Stockholders'
Agreement. FT understands that the shares of
Sprint's capital stock purchased by it pursuant
to this Agreement and the Amended and Restated
Stockholders' Agreement may not be sold or
transferred unless such shares are subsequently
registered under the Securities Act and/or
applicable state securities or blue sky laws or
any applicable securities law of any other country
or an exemption from such registration is available.
(e) All documents that FT is responsible
for filing with any Governmental Authority in
connection with the transactions contemplated hereby
or by the Amended Other Agreements have complied
and will comply in all material respects with
applicable Law. All information supplied or to
be supplied by FT in any document filed with any
Governmental Authority in connection with the
transactions contemplated hereby or by the
Amended Other Agreements will be, at the time of
filing, true and correct in all material
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respects, except where the failure to be true
and correct, individually or in the aggregate,
would not adversely affect in any material respect
the consummation of the transactions contemplated
by this Agreement or any Amended Other Agreement
or the Letter Agreement.
(f) FT is in compliance in all material
respects with Article 2 of the Standstill Agreement.
(g) Neither FT nor any Subsidiary of FT
is entitled to any immunity on the grounds of
sovereignty or otherwise (including, without
limitation, pursuant to the Foreign Sovereign
Immunities Act, 28 U.S.C. Section 1602 et seq.),
based upon its status as an agency or
instrumentality of government, from any legal
action, suit or proceeding or from set off or
counterclaim, from the jurisdiction of any
competent court described in Section 7.8 hereof,
from service of process, from attachment prior
to judgment, from attachment in aid of execution
of a judgment, from execution pursuant to a
judgment or arbitral award, or from any other
legal process in any jurisdiction, in each case
relating to this Agreement or any Amended Other
Agreement or the Letter Agreement.
Section 4.2. Representations and Warranties
of DT. DT represents and warrants to Sprint as follows:
(a) DT is an Aktiengesellschaft duly
formed and validly existing under the laws of
Germany, and has all requisite corporate power
and authority to: (i) enter into this Agreement,
each of the Amended Other Agreements and the
Letter Agreement, (ii) purchase the shares of
Sprint's capital stock as provided herein, and
in the Amended and Restated Stockholders'
Agreement and the Articles as amended by the
Proposed Charter Amendments and (iii) comply with
its obligations under this Agreement, each Amended
Other Agreement and the Letter Agreement.
(b) (i) The execution, delivery and
performance of this Agreement, each Amended Other
Agreement and the Letter Agreement, and the
consummation of the transactions contemplated
hereby and thereby, have been duly authorized by
all requisite corporate action on the part of DT.
Upon the execution and delivery by DT of this
Agreement, each Amended Other Agreement and the
Letter Agreement, each such agreement will
constitute a legal, valid and binding agreement
of DT, enforceable against DT in accordance with
its terms.
(ii) Neither the execution, delivery
and performance by DT of this Agreement, each
of the Amended Other Agreements or the Letter
Agreement, nor the consummation by DT of the
transactions contemplated hereby or thereby,
will (w) violate or conflict with any
provision of the Satzung or other governing
documents of DT or any of its Subsidiaries;
(x) require any Governmental Approvals or
Third Party Approvals, except where the
failure to so obtain, make or file such
Governmental Approvals or Third Party
Approvals, individually or in the aggregate,
is not reasonably likely to affect adversely
in any material respect DT's ability to
perform its obligations hereunder or under
the Amended Other Agreements or the
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Letter Agreement; (y) result in a default
(or an event that, with notice or lapse of
time or both, would become a default) under
any Contract to which DT or any of its
Subsidiaries is a party, or by which DT or
any of its Subsidiaries or any of their
respective assets or properties is bound,
except for any such defaults that,
individually or in the aggregate, are not
reasonably likely to affect adversely in
any material respect DT's ability to perform
its obligations hereunder or under the
Amended Other Agreements or the Letter
Agreement.
(c) There is no Proceeding pending or, to
the best of DT's Knowledge, threatened against or
relating to DT or any of its Subsidiaries at law
or in equity that, individually or in the aggregate,
is reasonably likely to affect adversely in any
material respect DT's ability to perform its
obligations hereunder or under the Amended Other
Agreements or the Letter Agreement. There is no
judgment, decree, injunction, rule or order of
any Governmental Authority outstanding against DT
or any of its Subsidiaries that, individually or
in the aggregate, is reasonably likely to adversely
affect in any material respect DT's ability to
performs its obligations hereunder or under the
Amended Other Agreements or the Letter Agreement.
(d) DT is purchasing the shares of Sprint's
capital stock to be purchased by it pursuant to
this Agreement and the Amended and Restated
Stockholders' Agreement for its own account for
investment, and not with a view to the distribution
of such shares or any part thereof. DT is a
party to no Contract with any person for resale of
such shares in connection with such a distribution.
DT acknowledges that the offering of the shares
pursuant to this Agreement and the Amended and
Restated Stockholders' Agreement will not be
registered under the Securities Act or under any
state securities or blue sky law or the securities
laws of any other country, on the grounds (with
respect to the Securities Act and such state
securities or blue sky laws) that the offering and
sale of shares of capital stock contemplated by
this Agreement and the Amended and Restated
Stockholders' Agreement are exempt from
registration pursuant to exceptions available under
such laws, and that Sprint's reliance upon such
exemptions is predicated upon DT's representations
set forth in this Agreement and the Amended and
Restated Stockholders' Agreement. DT understands
that the shares of Sprint's capital stock purchased
by it pursuant to this Agreement and the Amended
and Restated Stockholders' Agreement may not be
sold or transferred unless such shares are
subsequently registered under the Securities Act
and/or applicable state securities or blue sky
laws or any applicable securities laws of any other
country or an exemption from such registration is
available.
(e) All documents that DT is responsible
for filing with any Governmental Authority in
connection with the transactions contemplated
hereby or by each Amended Other Agreement have
complied and will comply in all material respects
with applicable Law. All information supplied or
to be supplied by DT in any document filed with
any Governmental Authority in connection with the
transactions contemplated hereby or by the Amended
Other Agreements will be, at the time of filing,
true and correct in all material respects, except
where the failure to be true and correct,
individually or in the aggregate,
-26-
would not adversely affect in any material respect
the consummation of the transactions contemplated
by this Agreement or any Amended Other Agreement
or the Letter Agreement.
(f) DT is in compliance in all material
respects with Article 2 of the Standstill Agreement.
(g) Neither DT nor any Subsidiary of DT
is entitled to any immunity on the grounds of
sovereignty or otherwise (including, without
limitation, pursuant to the Foreign Sovereign
Immunities Act, 28 U.S.C. Section 1602 et seq.),
based upon its status as an agency or
instrumentality of government, from any legal
action, suit or proceeding or from set off or
counterclaim, from the jurisdiction of any
competent court described in Section 7.8 hereof,
from service of process, from attachment prior
to judgment, from attachment in aid of execution
of a judgment, from execution pursuant to a judgment
or arbitral award, or from any other legal process
in any jurisdiction, in each case relating to this
Agreement or any Amended Other Agreement or the
Letter Agreement.
ARTICLE V
COVENANTS
Section 5.1. Cooperation.
(a) Between the date hereof and the
earlier of (i) the last Applicable Closing to
occur or (ii) the termination of this Agreement,
subject to the terms and conditions of this
Agreement, the Parties shall cooperate with each
other and use all commercially reasonable efforts
to obtain all necessary consents and approvals
for the consummation of the transactions
contemplated hereby and otherwise to satisfy the
conditions to closing set forth in Article II
hereof. Without limiting the generality of the
foregoing, (A) each of FT and DT agrees to vote
(or cause to be voted) the shares of capital
stock of Sprint it owns (directly or indirectly)
in favor of the Initial Charter Amendment, the
Subsequent Charter Amendment, this Agreement,
the Amended Other Agreements, the PCS
Restructuring Agreement and the transactions
contemplated hereby and thereby and the other
matters related thereto presented for a vote at
the Stockholders Meeting (including any class
vote of the Class A Holders required thereat or
in connection therewith), and agrees not to
exercise any disapproval rights which it may have
under the Articles or otherwise with respect to
any such matters, and (B) each Party shall use its
commercially reasonable efforts to obtain all
consents and authorizations of third parties and
Governmental Authorities and to make all filings
with and give all notices to third parties and
Governmental Authorities which may be necessary
or required in order to effect the transactions
contemplated hereby.
(b) Each of the Parties shall use its
reasonable efforts to resolve such objections,
if any, as any Governmental Authority may assert
with respect to this Agreement and the Amended
Other Agreements and the transactions contemplated
hereby and thereby under
-26-
applicable Laws, including requesting
reconsideration (which may be initiated by the
party affected thereby or requested by any
other Party) of any adverse ruling of any
Governmental Authority and taking administrative
appeals, if available and reasonably likely to
result in a reversal of such adverse ruling.
If any Proceeding is instituted by any Person
challenging this Agreement, the Amended Other
Agreements or the transactions contemplated
hereby or thereby, the Parties shall promptly
consult with each other to determine the
most appropriate response to such Proceeding
and shall cooperate in all reasonable respects
with any Party subject to any such Proceeding,
provided that the decision whether to initiate,
and the control of, any Proceeding involving
any Party shall remain within the sole
discretion of such Party.
(c) Notwithstanding the foregoing, in
connection with any filing or submission
required or action to be taken by Sprint,
FT or DT to consummate the transactions
contemplated hereby, (i) neither Sprint nor
any Affiliates of Sprint shall be required
to become subject to any requirement or
condition that it divest or "hold separate"
any assets or businesses or any similar
transaction or restriction, and (ii)
neither Sprint nor any Affiliates of Sprint
shall be required to divest or hold separate
or otherwise take (or refrain from taking)
or commit to take (or refrain from taking)
any action that limits its freedom of action
with respect to, or its ability to retain,
any of the businesses, product lines or assets
of Sprint or any of its Subsidiaries.
(d) Each Party shall (i) execute and
deliver such additional instruments and other
documents as may be reasonably requested by
the other Parties hereto in connection with
the consummation of the transactions
contemplated hereby, and (ii) use its
reasonable efforts to take, or cause to be
taken, all actions and to do, or cause to be
done, all things necessary under applicable
Law to consummate the transactions contemplated
hereby and by the Amended Other Agreements and
to satisfy the applicable conditions to
closing hereunder.
(e) FT shall comply, to the extent
permitted by applicable Law of France, with
final and nonappealable discovery orders
rendered by a court of competent jurisdiction
as provided in Section 7.8 hereof or in any
corresponding section of any Amended Other
Agreement, and shall take such reasonable
action as appropriate in order to permit FT
to so comply with such orders.
(f) DT shall comply, to the extent
permitted by applicable Law of Germany, with
final and nonappealable discovery orders
rendered by a court of competent jurisdiction
as provided in Section 7.8 hereof or in any
corresponding section of any Amended Other
Agreement, and shall take such reasonable
action as appropriate in order to permit DT
to so comply with such orders.
(g) Sprint shall, at the request of
FT and DT, use its commercially reasonable
efforts to obtain, as soon as is practicable,
any United States regulatory approvals or
other regulatory relief as FT and DT
reasonably deem appropriate in order for FT
and DT to exercise and benefit from their
rights under this Agreement, the Amended
Other Agreements and the Articles.
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(h) In addition to any obligations
under the Standstill Agreement or the Amended
and Restated Standstill Agreement, the Parties
shall use reasonable efforts to consult in
good faith with each other with a view to
agreeing upon any press release or public
announcement relating to the transactions
contemplated hereby or by the Amended Other
Agreements prior to the consummation thereof.
Section 5. Certain Actions by Sprint.
(a) As soon as is reasonably practicable
after the execution of this Agreement, Sprint
shall prepare and file with the SEC (i) the
Proxy Statement to be mailed to Sprint
stockholders in connection with the Stockholders
Meeting to be held for the purpose of approving
the Initial Charter Amendment, the Subsequent
Charter Amendment and amendments to certain of
Sprint's equity-based incentive plans in
connection with the creation of the PCS Stock,
among other things, and (ii) the Registration
Statement containing the IPO Prospectus covering
the shares of Series 1 PCS Stock to be sold in
the IPO. Sprint shall use its commercially
reasonable efforts to cause the Proxy Statement
to be approved for mailing and the Registration
Statement to become effective under the
Securities Act, each as promptly as practicable
after such filing, and shall take all commercially
reasonable actions required to be taken under any
applicable state blue sky or securities laws in
connection with the IPO and the Recapitalization.
(b) Sprint shall cause the Stockholders
Meeting to be held as soon as practicable after
the date hereof. Sprint's Board of Directors
shall recommend that its stockholders approve
the Initial Charter Amendment, the Subsequent
Charter Amendment and the other matters related
thereto presented for a vote in the Proxy Statement
(including matters, if any, referred to in clause
(b) of Section 3.14), and Sprint shall use
commercially reasonable efforts to obtain such
stockholder approval. Sprint shall not be deemed
to have breached any obligation under this Agreement
by reason of the disclosure of information in the
Proxy Statement or any public announcement or other
communication with Sprint's stockholders if such
disclosure is required by Law, so long as the
Board of Directors of Sprint shall not have
withdrawn, limited, qualified or conditioned the
recommendation referred to above. Sprint's
conclusion that any such disclosure is required
by Law will be final and binding on all the
parties hereto if Sprint has received a written
opinion of counsel that such disclosure or
communication is required by Law. "Commercially
reasonable" efforts shall not be deemed to
require any action that would prevent Sprint's
compliance with Section 3(a)(9) of the
Securities Act in connection with the
Recapitalization. Each of FT and DT shall
provide such information regarding itself and
its Affiliates as may reasonably be requested by
Sprint for inclusion in the Proxy Statement. The
information provided by FT and DT in writing for
inclusion in the Proxy Statement will not contain
any material misstatement of fact or omit to
state any material fact necessary to make the
statements, in the light of the circumstances
under which they are made, not misleading. All
statements included in the Proxy Statement
relating to FT or DT shall be subject to the
approval of FT and DT, such approval not to be
unreasonably withheld. If, at any time after
the mailing of the definitive Proxy Statement
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and prior to the Stockholders Meeting, any event
should occur that results in the information
supplied by FT, DT or their respective Affiliates
in writing for inclusion in the Proxy Statement
containing an untrue statement of a material fact
or omitting to state any material fact required
to be stated therein or necessary to make the
statements therein, in the light of the
circumstances under which they are made, not
misleading, FT and DT shall promptly notify
Sprint of the occurrence of such event.
(c) Sprint currently intends to close
the IPO as soon as practicable following the
Trigger Date, assuming that the other conditions
to the closing (other than conditions relating
solely to the obligations of FT and DT to purchase
capital stock hereunder) have been satisfied or
are capable of being satisfied on or prior to the
Primary Closing Date; provided that the
determination to proceed with the IPO at any time
shall remain in Sprint's sole discretion. If the
IPO occurs prior to the Recapitalization, the
Primary Closing shall occur simultaneously with
the closing of the IPO. If Sprint causes the
IPO to be completed simultaneously with the
Primary Closing, Sprint shall complete the
Recapitalization by filing the Subsequent
Charter Amendment with the Kansas Secretary of
State within 120 days following the Primary
Closing and, unless the Transfer Restrictions
(as defined in the Amended and Restated
Stockholders Agreement) have been terminated
pursuant to Section 2.6(a) of the Amended and
Restated Stockholders Agreement, each of FT
and DT will, and will cause its controlled
Affiliates to, for a period of one hundred
eighty (180) days following the Primary
Closing Date, refrain from engaging in any
public sale or distribution of any PCS Stock
or securities convertible into, or
exchangeable or exercisable for, or the value
of which relates to or is based upon, PCS
Stock.
(d) Subject to Section 5.2(e), if the
IPO is not completed on or prior to the 30th
day following the Trigger Date, then Sprint
shall on the earlier of (i) the date which is
10 days following such date subsequent to the
Trigger Date that Sprint reasonably determines
that the IPO is not capable of being completed
on or prior to the 30th day following the
Trigger Date or (ii) the 40th day following
the Trigger Date, effect the Recapitalization
by filing the Initial Charter Amendment and
the Subsequent Charter Amendment with the
Kansas Secretary of State, assuming that the
other conditions to closing have been satisfied
or are capable of being satisfied at the
Primary Closing. If Sprint causes the
Recapitalization to be completed as provided
in this Section 5.2(d), the Primary Closing
hereunder shall occur simultaneously with the
completion of the Recapitalization. In such
event, Sprint currently intends to complete
the IPO within 120 days after the Primary
Closing Date. If Sprint completes the
Recapitalization simultaneously with the
Primary Closing and the IPO is completed within
such 120-day period, unless the Transfer
Restrictions (as defined in the Amended and
Restated Stockholders Agreement) have been
terminated pursuant to Section 2.6(a) of the
Amended and Restated Stockholders Agreement,
each of FT and DT will, and will cause its
controlled Affiliates to, for a period
commencing at the time of the Primary Closing
and ending 90 days following the closing of
the IPO, refrain from engaging in any public
sale or distribution of any PCS Stock or
securities convertible into, or exchangeable
or exercisable for, or the value of which
relates to or is based upon, PCS Stock.
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(e) If the Trigger Date occurs after
August 1, 1998, and before September 1, 1998,
the Trigger Date will be deemed to occur on
the earlier of (i) September 1, 1998 or (ii)
such date after August 1, 1998, that Sprint
reasonably determines that the IPO is not
capable of being completed on or prior to
October 1, 1998.
Section 5.3. IPO Matters. The IPO will be
conducted substantially in accordance with the terms
of the PCS Restructuring Agreement.
Section 5.4. Tax Matters. Each Party shall
use all reasonable efforts to cause the
Recapitalization to constitute a tax-free
"reorganization" under Section 368(a) of the
Code. Each Party agrees that it will not take
any action, and will not permit any of its
Subsidiaries or Affiliates to take any action,
that such party knows would cause the
Recapitalization to fail to qualify as a
tax-free reorganization under Section 368(a) of
the Code. Each Party agrees to report the
Recapitalization on all tax returns and other
filings as a reorganization under Section 368(a)
of the Code. Absent a change in applicable Law,
or a change in facts beyond Sprint's reasonable
control, Sprint agrees that (i) it will not
treat the closing of the transactions contemplated
by this Agreement and the Amended Other
Agreements, including with respect to the
equity purchase rights of FT and DT described
herein and therein, as giving rise to any
withholding tax obligation (except in respect of
any cash payments) and (ii) it will not change
the withholding rate otherwise applicable to
distributions as the result of the class votes
provided to the holders of the PCS Stock. For
purposes of the preceding sentence, change
in applicable Law also includes any Revenue
Ruling, and (as of the proposed effective date
thereof) any proposed regulations or official
notice of intent to propose regulations issued
by the Internal Revenue Service.
Section 5.5. Brokers or Finders.
(a) Other than ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
and SBC Warburg Dillon Read, no Person is or
will be entitled to any broker's or finder's
fee or any other commission or similar fee
as a result of any action by Sprint or any
of its Affiliates in connection with the
transactions contemplated by this Agreement
and the Amended Other Agreements. Sprint
agrees to indemnify and hold harmless each
of FT and DT from and against any and all
claims, liabilities and obligations
(including attorneys' fees (but not
including the portion of any such fees
determined pursuant to the German Fee
Regulations) and disbursements of counsel)
with respect to any such fees asserted by
any Person as a result of any action by
Sprint or any of its Affiliates in
connection with the transactions contemplated
by this Agreement and the Amended Other
Agreements.
(b) Other than Credit Suisse First
Boston, no Person is or will be entitled to
any broker's or finder's fee or any other
commission or similar fee as a result of any
action by FT or any of its Affiliates in
connection with the transactions contemplated
by this Agreement and the Amended Other
Agreements. FT agrees to indemnify and hold
Sprint harmless from and against any and all
claims, liabilities and obligations
(including attorneys' fees and disbursements
of counsel) with respect to any such fees
asserted by any Person as a result
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of any actions by FT or its Affiliates in
connection with the transactions contemplated
by this Agreement and the Amended Other
Agreements.
(c) Other than Credit Suisse First
Boston, no Person is or will be entitled to
any broker's or finder's fee or any other
commission or similar fee as a result of
any action by DT or any of its Affiliates
in connection with the transactions
contemplated by this Agreement and the
Amended Other Agreements. DT agrees to
indemnify and hold Sprint harmless from
and against any and all claims, liabilities
and obligations (including attorneys' fees
and disbursements of counsel) with respect
to any such fees asserted by any Person as
a result of any actions by DT or its
Affiliates in connection with the
transactions contemplated by this
Agreement and the Amended Other Agreements.
Section 5.6. No Action Relating to Takeover
Statutes; Applicability of Future Statutes and
Regulations. Sprint shall (a) take no action,
by resolution of its Board of Directors or
otherwise, to cause the Business Combination
Statute or the provisions of the Kansas Control
Share Acquisitions Statute to apply to FT, DT
or their respective Affiliates by virtue of the
transactions contemplated by this Agreement,
any Amended Other Agreement or the Articles,
and (b) use reasonable efforts to avoid (to the
extent possible) the application of any
"fair price," "moratorium," "control
share acquisition," "business combination,"
"shareholder protection" or similar
anti-takeover statute or regulation
promulgated under Kansas law after the date
hereof to FT, DT or their respective
Affiliates by virtue of the transactions
contemplated by this Agreement, any
Amended Other Agreement or the Articles.
Section 5.7. Management and Allocation
Policies. Sprint will not make any change
in or amendment to the Management and
Allocation Policies or the Bylaw Amendment
(or waive or otherwise disregard any
provision thereof) prior to the
Recapitalization without the consent of
each of FT and DT.
Section 5.8. Sprint Action. Except
to the extent that each of the Buyers
otherwise consents in writing, or as
otherwise contemplated by the PCS
Restructuring Agreement, this Agreement
or the Amended Other Agreements, until
the Primary Closing, Sprint shall not
amend or propose to amend the Articles
or Bylaws in any manner that would
adversely affect the consummation of
the transactions contemplated by, or
otherwise adversely affect the rights
of the Buyers under, this Agreement, each
Amended Other Agreement, the Articles as
proposed to be amended by the Proposed
Charter Amendments, and the Bylaws as
proposed to be amended by the Bylaws
Amendment.
Section 5.9. Standstill Agreement.
The discussions solely among FT, DT and
Sprint (and their respective legal counsel
and investment bankers) in connection with
the negotiation, execution and delivery of
this Agreement and the Amended Other
Agreements and the discussions solely
among FT, DT and Sprint (and their respective
legal counsel and investment bankers) in
connection with the consummation of the
transactions contemplated thereby shall
not constitute a violation of the Standstill
Agreement or the Amended and Restated
Standstill Agreement. In addition, the
discussions solely among FT, DT, Sprint
and the Cable Partners (and their respective
legal counsel
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and investment bankers) prior to the date
hereof in connection with the negotiation,
execution and delivery of the Purchase
Rights Agreement shall not constitute a
violation of the Standstill Agreement or
the Amended and Restated Standstill Agreement.
ARTICLE VI
TERMINATION; ABANDONMENT
Section 6.1. Events of Termination.
This Agreement may be terminated and the
transactions contemplated hereby abandoned
at any time prior to the Primary Closing:
(a) by mutual written consent
of the Parties;
(b) by any Party, by notice to
the other Parties, if the actions to be
taken by the Parties at the Primary
Closing under clauses (a), (b) and (h)
through (m) only of Section 1.1 hereof
shall be prohibited by any final,
nonappealable order, decree or
injunction of a Governmental Authority;
(c) by any Party that is not in
material breach of any material covenant
contained in this Agreement, by notice
to the other Parties if the Primary Closing
has not occurred on or before December 31,
1998;
(d) by any Party that is not in
material breach of any material covenant
contained in this Agreement, by notice to
the other Parties following the time that
any condition to the Primary Closing set
forth in Article II (other than any
conditions set forth in Sections 2.1(b)
and 2.3(b)) has become incapable of being
satisfied on or prior to December 31, 1998;
(e) by any Party that is not in
material breach of any material covenant
contained in this Agreement, by notice to
the other Parties following a material
breach of any material covenant contained
in this Agreement by any other Party if
such breach remains uncured in any
material respect for 30 days following the
giving of notice of the breach of such
material covenant from the Party seeking
to terminate this Agreement to each other
Party; provided, that the Party seeking to
terminate this Agreement gives written
notice of such termination to each other
Party within 30 days following the end of
such 30-day cure period; or
(f) by FT or DT, if the Board of
Directors shall have withdrawn its
recommendation of the proposals
contemplated by Section 5.2(b) hereof or
shall have qualified its recommendation
in a manner materially adverse to FT and DT,
provided that for purposes of this clause
(f) if the Board of Directors continues its
recommendation and approval of such
proposals, but reflects in its recommendation
additional information, the inclusion of
such additional information, in and of
itself, shall not be deemed to be a
qualification that is materially adverse
to FT and DT or otherwise provide FT and
DT with a termination right under this
clause (f).
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Section 6.2. Effect of Termination.
(a) If this Agreement is terminated
in accordance with Section 6.1, then this
Agreement shall become null and void and have
no further effect, without any liability of
any Party to any other Party, except that the
obligations of the Parties pursuant to
Section 6.3 and Article VII and under any
provision of this Agreement that expressly
provides for certain actions to occur
simultaneously with or following the
termination of this Agreement shall survive
the termination of this Agreement
indefinitely; provided, that no such
termination shall release or relieve any
Party hereto from liability for any willful
material breach of any material provision
of this Agreement occurring prior to such
termination.
(b) If this Agreement is terminated
in accordance with Section 6.1, then the
Initial Other Agreements shall continue
in full force and effect until terminated
in accordance with their respective terms,
without any amendment to the rights and
obligations of the parties thereto.
Section 6.3. Reimbursement of Expenses. If
this Agreement is terminated pursuant to Section
6.1(f), in addition to any other remedies the Buyers
may have hereunder, at law, in equity or otherwise,
Sprint shall promptly reimburse each of FT and DT
for their actual reasonable out-of-pocket expenses
(including attorneys' fees, but notwithstanding the
foregoing, not including the portion of any fees
determined pursuant to the German Fee Regulations)
incurred by it relating to the transactions
contemplated by this Agreement and the Amended Other
Agreements (as set forth on a certificate or
certificates executed by an officer of each of FT
and DT describing such expenses in reasonable
detail) up to a maximum aggregate amount of $5
million for FT and DT collectively, to be
allocated between FT and DT as FT and DT shall
so determine.
Section 6.4. Abandonment of Purchase
and Sale of Capital Stock at Primary Closing.
The obligations of the parties to consummate
the purchase by FT and DT of the capital stock
of Sprint contemplated hereby to occur at the
Primary Closing may be abandoned at any time
prior to the Primary Closing:
(a) by any Party, by notice to the
other Parties, if the purchase and sale of
the capital stock of Sprint contemplated to
occur at the Primary Closing shall be
prohibited by any final, nonappealable
order, decree or injunction of a Governmental
Authority; or
(b) if a Change of Control shall
have occurred.
Notwithstanding any abandonment pursuant to this
Section 6.4 of the purchase and sale of the
capital stock of Sprint to be effected at the
Primary Closing, this Agreement shall not be
terminated and such abandonment shall have no
effect whatsoever on (i) the Buyers' obligations
under Article V to vote (or cause to be voted)
the shares of capital stock of Sprint they own
(directly or indirectly) in favor of the Initial
Charter Amendment, the Subsequent Charter
Amendment, this Agreement, the Amended Other
Agreements, the PCS Restructuring Agreement
and the transactions contemplated
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hereby and thereby and any other matters
related thereto presented for a vote at the
Stockholders Meeting (including any class vote
of the Class A Holders required thereat or in
connection therewith), and their agreement not
to exercise any disapproval rights which they
may have under the Articles or otherwise with
respect to any such matters, or (ii) any other
actions to be taken by the Parties at the
Primary Closing, including the Parties'
obligations to proceed with all of the
transactions and deliveries contemplated
to be undertaken at the Primary Closing
(other than the purchase and sale by the
Buyers of the capital stock of Sprint), and
such transactions and deliveries in fact
shall proceed if all of the other
conditions to the Primary Closing have been
satisfied or waived.
Section 6.5. Abandonment of Secondary
Closing and Greenshoe Closing. The
obligations of the parties to consummate
the purchase by FT and DT of the capital
stock of Sprint contemplated hereby to
occur at the Secondary Closing and/or the
Greenshoe Closing may be abandoned at any
time after the Primary Closing and prior
to such Secondary Closing or Greenshoe
Closing, as the case may be:
(a) by mutual written consent
of the Parties;
(b) by any Party, by notice to
the other Parties, if the Secondary
Closing or Greenshoe Closing, as the case
may be, shall be prohibited by any final,
nonappealable order, decree or injunction
of a Governmental Authority;
(c) by any Party that is not in
material breach of any material covenant
contained in this Agreement, by notice to
the other Parties if the Secondary
Closing has not occurred on or before
June 30, 1999;
(d) by any Party that is not in
material breach of any material covenant
contained in this Agreement, by notice to
the other Parties following the time that
any condition to closing set forth in
Article II and applicable to the purchase
by FT and DT of capital stock pursuant to
this Agreement at the Secondary Closing
or the Greenshoe Closing has become
incapable of being satisfied on or prior
to June 30, 1999;
(e) by any Party that is not in
material breach of any material covenant
contained in this Agreement, by notice to
the other Parties following a material
breach of any material covenant contained
in this Agreement by any other Party if
such breach remains uncured in any material
respect for 30 days following the giving
of notice of the breach of such material
covenant from the Party seeking to
terminate this Agreement to each other
Party; provided, that the Party seeking to
abandon the Secondary Closing or the
Greenshoe Closing gives written notice of
such termination to each other Party
within 30 days following the end of such
30-day cure period; or
(f) if a Change of Control shall
have occurred.
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Notwithstanding any abandonment of the Secondary
Closing or the Greenshoe Closing pursuant to this
Section 6.5, this Agreement shall not be
terminated and such abandonment shall have no
effect whatsoever on the actions taken or to be
taken by the Parties at the Primary Closing,
including the execution and delivery by the
Parties of the Amended Other Agreements.
ARTICLE VII
MISCELLANEOUS
Section 7.1. Survival of Representations
and Warranties.
(a) The representations and warranties
made by (i) Sprint in Sections 3.1 through 3.5,
the first two sentences of Section 3.6(a) and
Section 3.7 (but, in the case of Section 3.7,
only to the extent that a change described in
such Section relates to a Material Adverse
Effect on Sprint and its Subsidiaries taken as
a whole that existed on the Primary Closing
Date, but arose after the later of (x) the date
of the end of the quarter covered by the last
Quarterly Report on Form 10-Q of Sprint filed
prior to the Primary Closing Date and (y) the
date of the end of the year covered by the
last Annual Report on Form 10-K of Sprint filed
prior to the Primary Closing Date) of this
Agreement, and (ii) the Buyers in Sections 4.1
and 4.2 of this Agreement (the "Surviving
Representations") will survive, solely with
respect to any damages relating to each
particular investment to be made at an
Applicable Closing, until the earlier to occur
of (x) 15 months after the date of the
Applicable Closing and (y) 90 days after the
publication of the results of the first
full audit of the consolidated financial
statements of Sprint and its Subsidiaries by
Sprint's independent auditors following the
Applicable Closing, such financial statements
to include a balance sheet and statements of
income and cash flows as of a date following
the Applicable Closing and to be prepared in
accordance with GAAP applied on a consistent
basis with the financial statements included
in the SEC Documents. Sprint shall have the
right to cause its independent auditors to
conduct such an audit at any time after the
Applicable Closing. No action may be brought
with respect to a breach of any Surviving
Representation after such time unless, prior
to such time, the Party seeking to bring such
an action has notified the other Parties of
such claim, specifying in reasonable detail
the nature of the loss suffered. The
representations and warranties provided in
Sections 3.10, 4.1(g) and 4.2(g) shall survive
without limitation as to time. None of the
other representations and warranties made by
any party in this Agreement or any Amended
Other Agreement or in any certificate or
document delivered pursuant hereto or
thereto prior to or on the Applicable Closing
shall survive the Applicable Closing. None
of the representations and warranties made
by any Party in this Agreement or any Amended
Other Agreement or in any certificate or
document delivered pursuant hereto or thereto
at the Secondary Closing or Greenshoe Closing
shall survive such Secondary Closing or
Greenshoe Closing, as the case may be, provided
that if any certificate or document delivered
pursuant hereto, or any portion thereof,
pertains to a Surviving Representation, such
certificate or document, or such portion
thereof, shall survive until the Surviving
Representation to which it pertains shall no
longer survive as provided herein.
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(b) The Buyers shall be entitled to
recovery with respect to breaches of the
Surviving Representations and to the
representation and warranty provided in Section
3.10 made by Sprint pursuant to this Agreement
(and in any certificate pertaining to any such
representation) only if the aggregate amount of
loss, liability or damage (including
reasonable attorneys' fees (but not including
the portion of any fees determined pursuant to
the German Fee Regulations) and other costs
and expenses) (collectively, "Damages")
incurred or sustained by the Buyers arising
from or relating to such breaches, in the
aggregate, exceeds $30 million. Sprint shall
be entitled to recovery with respect to breach
of the Surviving Representations made by the
Buyers pursuant to this Agreement (and in any
certificate pertaining to any such
representation) only if the aggregate amount
of Damages sustained by Sprint arising from
or relating to such breaches exceeds $30
million. Sprint shall not incur any liability
under the representation and warranty provided
in Section 3.10 or under any certificate
pertaining to such representation (even if
Sprint turns out in fact to be a U.S. real
property holding corporation), provided that
such representation and warranty is made to
the best of Sprint's Knowledge and belief.
(c) Notwithstanding anything in this
Section 7.1 to the contrary, except solely with
respect to the representations and warranties
in Section 3.3 relating to the effect of the
filing of the Proposed Charter Amendments with
respect to the Class A Common Stock, the
Buyers shall be entitled to Damages under this
Section 7.1 only to the extent such Damages
directly relate to the investment in Sprint
being made by the Buyers pursuant to this
Agreement, and without limiting the
generality of the foregoing, the Buyers shall
have no claim for Damages under this Agreement
with respect to any actual or alleged
diminution in value of, or other loss,
liability or damage associated with, the
Buyers' existing investment in Sprint or any
additional purchases of capital stock of
Sprint made by the Buyers other than pursuant
to this Agreement.
Section 7.2. Assignment. No Party will assign
this Agreement or any rights, interests or
obligations hereunder, or delegate performance of
any of its obligations hereunder, without the prior
written consent of each other Party.
Section 7.3. Entire Agreement. This Agreement,
including the Disclosure Schedules, the Exhibits
attached hereto, and the Amended Other Agreements
embody the entire agreement and understanding of
the Parties in respect of the subject matter
contained herein, provided that this provision
shall not abrogate (a) any other written agreement
between the Parties executed simultaneously with
this Agreement, (b) the Original Investment
Agreement, or (c) the understanding set forth in
Item 1 of Schedule 2 to that certain memorandum
dated June 22, 1995 among Sprint, FT and DT. This
Agreement supersedes all prior agreements and
understandings between the Parties with respect
to such subject matter, except as so provided in
the preceding sentence.
Section 7.4. Expenses. Except as set forth
in the next sentence, each Party and each of its
Affiliates will bear its own expenses (including
the fees and expenses of any attorneys,
accountants,
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investment bankers, brokers, or other Persons
engaged by it) incurred in connection with the
preparation, negotiation, authorization,
execution and delivery hereof and each of the
Amended Other Agreements to which it or any of
its Affiliates is a party, and the transactions
contemplated hereby and thereby. Each of the
Parties agrees that a Party making a request for
this Agreement, the Letter Agreement, an
Amended Other Agreement or any other document
related to this Agreement and the Amended Other
Agreements to be translated in the French language
shall be responsible for the expenses associated
with the preparation of such translations and
that the non-requesting Parties shall be
responsible for the expenses associated with the
review of such translations by the non-requesting
Parties and their advisors.
Section 7.5. Waiver, Amendment, Etc. This
Agreement may not be amended or supplemented, and
no waivers of or consents to departures from the
provisions hereof shall be effective, unless set
forth in a writing signed by, and delivered to,
all the Parties. No failure or delay of any
Party in exercising any power or right under
this Agreement will operate as a waiver thereof,
nor will any single or partial exercise of any
right or power, or any abandonment or
discontinuance of steps to enforce such right
or power, preclude any other or further exercise
thereof or the exercise of any other right or
power.
Section 7.6. Binding Agreement; No Third
Party Beneficiaries. This Agreement will be
binding upon and inure to the benefit of the
Parties and their successors and permitted
assigns. Nothing expressed or implied herein
is intended or will be construed to confer
upon or to give to any third party any rights
or remedies by virtue hereof.
Section 7.7. Notices. All notices and
other communications required or permitted by
this Agreement shall be made in writing in
the English language and any such notice or
communication shall be deemed delivered when
delivered in person, transmitted by telex or
telecopier, or seven days after it has been
sent by air mail, as follows:
FT: ▇ ▇▇▇▇▇ ▇'▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇ Cedex 15
France
Attn: Group Executive
Vice President
Tel: (▇▇-▇) ▇▇-▇▇-▇▇-▇▇
Fax: (▇▇-▇) ▇▇-▇▇-▇▇-▇▇
with a copy to: ▇ ▇▇▇▇▇ ▇'▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇ Cedex 15
France
Attn: General Counsel
Tel: (▇▇-▇) ▇▇-▇▇-▇▇-▇▇
Fax: (▇▇-▇) ▇▇-▇▇-▇▇-▇▇
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with a copy to: Shearman & Sterling
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇.▇.▇.
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇, ▇▇., Esq.
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
DT: ▇▇▇▇▇▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇ ▇▇▇
▇-▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇
Tel: ▇▇-▇▇▇-▇▇▇-▇▇▇▇
Fax: ▇▇-▇▇▇-▇▇▇-▇▇▇▇
Attn: Chief Executive Officer
with a copy to: Cleary, Gottlieb, ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇.▇.▇.
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Sprint: ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇ Wing
Westwood, Kansas 66205
U.S.A.
Attn: General Counsel
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to: King & Spalding
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇.▇.▇.
Attn: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Esq.
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
The Parties shall promptly notify each other
in the manner provided in this Section 7.7 of
any change in their respective addresses. A
notice of change of address shall not be deemed
to have been given until received by the addressee.
Communications by telex or telecopier also shall
be sent concurrently by mail, but shall in any
event be effective as stated above.
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Section 7.8. Governing Law; Dispute
Resolution; Equitable Relief.
(a) THIS AGREEMENT SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEW YORK (REGARDLESS OF THE LAWS THAT
MIGHT OTHERWISE GOVERN UNDER APPLICABLE
PRINCIPLES OF CONFLICTS OF LAW).
(b) EACH PARTY IRREVOCABLY CONSENTS AND
AGREES THAT ANY LEGAL ACTION, SUIT OR PROCEEDING
AGAINST IT WITH RESPECT TO ITS OBLIGATIONS OR
LIABILITIES UNDER OR ARISING OUT OF OR IN
CONNECTION WITH THIS AGREEMENT SHALL BE BROUGHT
BY SUCH PARTY ONLY IN THE UNITED STATES DISTRICT
COURT FOR THE SOUTHERN DISTRICT OF NEW YORK OR,
IN THE EVENT (BUT ONLY IN THE EVENT) SUCH COURT
DOES NOT HAVE SUBJECT MATTER JURISDICTION OVER
SUCH ACTION, SUIT OR PROCEEDING, IN ▇▇▇ ▇▇▇▇▇▇
▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇ SITTING IN THE CITY OF
NEW YORK, AND EACH PARTY HEREBY IRREVOCABLY
ACCEPTS AND SUBMITS TO THE JURISDICTION OF EACH
OF THE AFORESAID COURTS IN PERSONAM, WITH RESPECT
TO ANY SUCH ACTION, SUIT OR PROCEEDING
(INCLUDING, WITHOUT LIMITATION, CLAIMS FOR
INTERIM RELIEF, COUNTER-CLAIMS, ACTIONS WITH
MULTIPLE DEFENDANTS AND ACTIONS IN WHICH SUCH
PARTY IS IMPLED). EACH PARTY IRREVOCABLY AND
UNCONDITIONALLY WAIVES ANY RIGHT THAT IT MAY HAVE
TO A JURY TRIAL IN ANY LEGAL ACTION, SUIT OR
PROCEEDING WITH RESPECT TO, OR ARISING OUT OF OR
IN CONNECTION WITH THIS AGREEMENT.
(c) EACH OF FT AND DT HEREBY IRREVOCABLY
DESIGNATES CT CORPORATION SYSTEM (IN SUCH CAPACITY,
THE "PROCESS AGENT"), WITH ▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇▇▇ AS ITS DESIGNEE,
APPOINTEE AND AGENT TO RECEIVE, FOR AND ON ITS
BEHALF SERVICE OF PROCESS IN SUCH JURISDICTION
IN ANY LEGAL ACTION OR PROCEEDINGS WITH RESPECT TO
THIS AGREEMENT AND THE AMENDED OTHER AGREEMENTS,
AND SUCH SERVICE SHALL BE DEEMED COMPLETE UPON
DELIVERY THEREOF TO THE PROCESS AGENT, PROVIDED
THAT IN THE CASE OF ANY SUCH SERVICE UPON THE
PROCESS AGENT, THE PARTY EFFECTING SUCH
SERVICE SHALL ALSO DELIVER A COPY THEREOF TO FT
AND DT IN THE MANNER PROVIDED IN SECTION 7.7.
FT AND DT SHALL TAKE ALL SUCH ACTION AS MAY BE
NECESSARY TO CONTINUE SAID APPOINTMENT IN FULL
FORCE AND EFFECT OR TO APPOINT ANOTHER AGENT SO
THAT FT AND DT WILL AT ALL TIMES HAVE AN AGENT
FOR SERVICE OF PROCESS FOR THE ABOVE PURPOSES
IN NEW YORK, NEW YORK. IN THE EVENT OF THE
TRANSFER OF ALL OR SUBSTANTIALLY ALL OF THE
ASSETS AND BUSINESS OF THE PROCESS AGENT TO ANY
OTHER CORPORATION BY CONSOLIDATION, MERGER, SALE
OF ASSETS OR OTHERWISE, SUCH OTHER CORPORATION
SHALL BE SUBSTITUTED HEREUNDER FOR THE PROCESS
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AGENT WITH THE SAME EFFECT AS IF NAMED HEREIN
IN PLACE OF CT CORPORATION SYSTEM. EACH OF FT
AND DT FURTHER IRREVOCABLY CONSENTS TO THE
SERVICE OF PROCESS OUT OF ANY OF THE
AFOREMENTIONED COURTS IN ANY SUCH ACTION OR
PROCEEDING BY THE MAILING OF COPIES THEREOF
BY REGISTERED AIRMAIL, POSTAGE PREPAID, TO SUCH
PARTY AT ITS ADDRESS SET FORTH IN THIS
AGREEMENT. SUCH SERVICE OF PROCESS TO BE
EFFECTIVE UPON ACKNOWLEDGMENT OF RECEIPT OF
SUCH REGISTERED MAIL. NOTHING HEREIN SHALL
AFFECT THE RIGHT OF ANY PARTY TO SERVE PROCESS
IN ANY OTHER MANNER PERMITTED BY APPLICABLE
LAW. EACH OF FT AND DT EXPRESSLY ACKNOWLEDGES
THAT THE FOREGOING WAIVER IS INTENDED TO BE
IRREVOCABLE UNDER THE LAWS OF THE STATE OF NEW
YORK AND OF THE UNITED STATES OF AMERICA.
(d) EACH PARTY AGREES THAT MONEY DAMAGES
WOULD NOT BE A SUFFICIENT REMEDY FOR THE OTHER
PARTIES FOR ANY BREACH OF THIS AGREEMENT BY IT,
AND THAT IN ADDITION TO ALL OTHER REMEDIES THE
OTHER PARTES MAY HAVE, THEY SHALL BE ENTITLED
TO SPECIFIC PERFORMANCE AND TO INJUNCTIVE OR
OTHER EQUITABLE RELIEF AS A REMEDY FOR ANY SUCH
BREACH TO THE EXTENT PERMITTED BY APPLICABLE
LAW. EACH PARTY AGREES NOT TO OPPOSE THE
GRANTING OF SUCH RELIEF IN THE EVENT A COURT
DETERMINES THAT SUCH A BREACH HAS OCCURRED,
AND TO WAIVE ANY REQUIREMENT FOR THE SECURING
OR POSTING OF ANY BOND IN CONNECTION WITH SUCH
REMEDY.
Section 7.9. Severability. The invalidity or
unenforceability of any provision hereof in any
jurisdiction will not affect the validity or
enforceability of the remainder hereof in that
jurisdiction or the validity or enforceability of
this Agreement, including that provision, in any
other jurisdiction. To the extent permitted by
applicable Law, each Party waives any provision of
law that renders any provision hereof prohibited
or unenforceable in any respect. If any provision
of this Agreement is held to be unenforceable for
any reason, to the extent permitted by applicable
Law it shall be adjusted rather than voided, if
possible, in order to achieve the intent of the
Parties to the extent possible.
Section 7.10. Translation.
(a) The Parties have negotiated this
Agreement in the English language and have
prepared successive drafts and the definitive
text of this Agreement in the English
language. For purposes of complying with
the French Translation Law, Sprint has
prepared and the other Parties have reviewed
a French version of this Agreement, which
French version was executed and delivered
simultaneously with the execution and delivery
of the English version hereof, such English
version having likewise been executed and
delivered. The Parties deem the French and
English versions of this Agreement to be
equally authoritative.
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(b) The Parties acknowledge that
the PCS Restructuring Agreement, Initial
Charter Amendment, the Subsequent Charter
Amendment, the Qualified Stock Purchaser
Standstill Agreement (as such term is defined
in the Amended and Restated Stockholders'
Agreement), Sprint Stock Payment Notes (as
such term is defined in the Amended and
Restated Stockholders' Agreement) and Sprint
Eligible Notes (as such term is defined in
the Amended and Restated Stockholders'
Agreement), and any draft forms thereof,
are not required to be translated into the
French language to comply with the French
Translation Law and that the Exhibits to the
Letter Agreement are either not required to be
translated into the French language prior to
the Primary Closing to comply with the French
Translation Law or are not required to be
translated into the French language either
before or after the Primary Closing to comply
with the French Translation Law.
Section 7.11. Table of Contents; Headings;
Counterparts. The table of contents and the headings
in this Agreement are for convenience of reference
only and will not affect the construction of any
provisions hereof. This Agreement may be executed in
one or more counterparts, each of which when so
executed and delivered will be deemed an original but
all of which will constitute one and the same
Agreement.
Section 7.12. Waiver of Immunity. Each of FT
and DT agrees that, to the extent that it or any of
its property is or becomes entitled at any time to
any immunity on the grounds of sovereignty or
otherwise based upon its status as an agency or
instrumentality of government from any legal
action, suit or proceeding or from set off or
counterclaim relating to this Agreement from the
jurisdiction of any competent court described in
Section 7.8, from service of process, from
attachment prior to judgment, from attachment
in aid of execution of a judgment, from execution
pursuant to a judgment or arbitral award, or from
any other legal process in any jurisdiction, it,
for itself and its property expressly, irrevocably
and unconditionally waives, and agrees not to
plead or claim, any such immunity with respect to
such matters arising with respect to this Agreement
or the subject matter hereof (including any
obligation for the payment of money). Each of FT
and DT agrees that the waiver in this provision is
irrevocable and is not subject to withdrawal in any
jurisdiction or under any statute, including the
Foreign Sovereign Immunities Act, 28 U.S.C. 1602
et seq. The foregoing waiver shall constitute a
present waiver of immunity at any time any action
is initiated against FT or DT with respect to this
Agreement.
Section 7.13. Continuing Director Approval.
Where Continuing Director approval is otherwise
explicitly required under this Agreement with
respect to a transaction or determination on the
part of Sprint, such approval shall not be
required if (a) the Fair Price Provisions have
been deleted in their entirety, (b) the Fair Price
Provisions have been modified so as explicitly not
to apply to any holder of Class A Common Stock, or
they have been modified in a manner reasonably
satisfactory to FT and DT so as explicitly not to
apply to any transactions with any holder of Class
A Common Stock contemplated by the Amended Other
Agreements or the Articles as amended by the
Proposed Charter Amendments, (c) the transaction
in question is not a "Business Combination"
within the meaning of the Fair Price Provisions,
or (d) the holder of Class A Common Stock that
is a party to the transaction, along with its
Affiliates (as such term is defined in Rule
12b-2 under the Exchange Act, as in effect on
October 1, 1982) and Associates (as such term
is defined in Rule 12b-2
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under the Exchange Act, as in effect on October
1, 1982), is not an "Interested Stockholder"
or an "Affiliate" of an "Interested
Stockholder" within the meaning of the Fair
Price Provisions. Where this Agreement
provides that Continuing Director approval
is explicitly required to undertake a
transaction or make a determination on the
part of Sprint, Sprint shall not undertake
such transaction or make such determination
unless it first delivers a certificate,
signed by a duly authorized officer of Sprint,
to each of FT and DT certifying that such
approval either has been obtained or is not
required as set forth in the preceding sentence,
and FT and DT shall be entitled to rely on such
certificate.
Section 7.14. Changes in Law. The
inclusion by the Parties in the Amended Other
Agreements and by Sprint in the Proposed
Charter Amendments of provisions contained in
the Initial Other Agreements and in the
existing Articles which provided for the
termination, modification or vesting of
certain rights and obligations of the parties
upon a change in the Law relating to the
United States Communications Act of 1934 is
not intended to create an inference that the
Parties believe that no such changes in the
Law have occurred since the date of the Initial
Other Agreements and such provisions shall be
interpreted with reference to the respective
dates of the Initial Other Agreements and the
date of filing of the Articles in connection
with the closing of the transactions
contemplated by the Original Investment Agreement.
Section 7.15. Currency. All amounts
payable under this Agreement and the Amended
Other Agreements shall be payable in U.S. dollars.
ARTICLE VIII
DEFINITIONS
Section 8.1. Certain Definitions. As used
in this Agreement, the following terms shall
have the meanings specified below:
"Acquiring Person Statement" means the
acquiring person statement dated November 17,
1995, delivered by FT, DT and certain of their
Affiliates pursuant to Section 17-1291 of the
Kansas Control Share Acquisitions Statute.
"Affiliates" means, with respect to any
Person, any other Person that directly or
indirectly through one or more intermediaries
controls, is controlled by, or is under common
control with such Person. For purposes of
this definition, the term "controls" (including
its correlative meanings "controlled by" and
"under common control with") shall mean the
possession, direct or indirect, of the power
to direct or cause the direction of the
management and policies of a Person, whether
through the ownership of voting securities,
by contract or otherwise.
"Agreement" means this Master
Restructuring and Investment Agreement,
including the Schedules attached hereto.
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"Amended and Restated Confidentiality
Agreements" means the Amended and Restated
DT Investor Confidentiality Agreement and
the Amended and Restated FT Investor
Confidentiality Agreement.
"Amended and Restated DT Investor
Confidentiality Agreement" means the
confidentiality agreement between Sprint
and DT, in form reasonably satisfactory to
each of the Parties.
"Amended and Restated FT Investor
Confidentiality Agreement" means the
confidentiality agreement between Sprint
and FT, in form reasonably satisfactory to
each of the Parties.
"Amended and Restated Registration
Rights Agreement" means the Amended and
Restated Registration Rights Agreement
among the Parties, in form reasonably
satisfactory to each of the Parties.
"Amended and Restated Standstill
Agreement" means the Amended and Restated
Standstill Agreement among the Parties, in
form reasonably satisfactory to each of the
Parties.
"Amended and Restated Stockholders'
Agreement" means the Amended and Restated
Stockholders' Agreement among the Parties,
in form reasonably satisfactory to each of
the Parties.
"Amended Other Agreements" means the
Amended and Restated Registration Rights
Agreement, the Amended and Restated Standstill
Agreement, the Amended and Restated
Stockholders' Agreement, the Amended and
Restated DT Investor Confidentiality Agreement
and the Amended and Restated FT Investor
Confidentiality Agreement.
"Applicable Closing" means the Primary
Closing, the Secondary Closing or the Greenshoe
Closing, as provided by the context of the
sentence.
"Articles" means the Articles of
Incorporation of Sprint, as amended from time
to time, including pursuant to the Proposed
Charter Amendments.
"Associate" has the meaning ascribed
to such term in Rule 12b-2 under the Exchange
Act, provided that when used to indicate a
relationship with FT or DT or their respective
Subsidiaries or Affiliates, the term
"Associate" shall mean (a) in the case of
FT, any Person occupying any of the positions
listed on Schedule 8.1(a) hereto, and (b) in
the case of DT, any Person occupying any of
the positions listed on Schedule 8.1(b)
hereto, provided, further, that, in each
case, no Person occupying any such position
described in clause (a) or clause (b) hereof
shall be deemed an "Associate" of FT or DT,
as the case may be, unless the Persons
occupying all such positions described in
clauses (a) and (b) hereof Beneficially Own,
in the aggregate, more than 0.2% of the
Voting Power of Sprint.
"Beneficial Owner" (including, with its
correlative meanings, "Beneficially Own" and
"Beneficial Ownership"), with respect to any
securities, shall mean any Person which:
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(a) has, or any of whose
Affiliates or Associates has, directly or
indirectly, the right to acquire (whether
such right is exercisable immediately or
only after the passage of time) such
securities pursuant to any agreement,
arrangement or understanding (whether or
not in writing), including pursuant to
the Original Investment Agreement, this
Agreement and the Amended and Restated
Stockholders' Agreement, or upon the
exercise of conversion rights, exchange
rights, warrants or options, or otherwise;
(b) has, or any of whose Affiliates
or Associates has, directly or indirectly,
the right to vote or dispose of (whether
such right is exercisable immediately or
only after the passage of time) or
"beneficial ownership" of (as determined
pursuant to Rule 13d-3 under the Exchange
Act as in effect on the date hereof but
including all such securities which a Person
has the right to acquire beneficial ownership
of, whether or not such right is exercisable
within the 60-day period specified therein)
such securities, including pursuant to any
agreement, arrangement or understanding
(whether or not in writing); or
(c) has, or any of whose Affiliates
or Associates has, any agreement, arrangement
or understanding (whether or not in writing)
for the purpose of acquiring, holding, voting
or disposing of any securities which are
Beneficially Owned, directly or indirectly,
by any other Person (or any Affiliate thereof),
provided that (i) Class A Common Stock, FON Stock
and PCS Stock held by one of FT or DT or its
Affiliates or Associates shall not also be deemed
to be Beneficially Owned by the other of FT or DT
or its Affiliates or Associates; (ii) FON Stock
and PCS Stock shall not be deemed to be
Beneficially Owned by FT, DT or their Affiliates
or Associates by virtue of the top up rights and
standby commitments granted under the Purchase
Rights Agreement except to the extent that FT,
DT or their Affiliates or Associates have (A)
acquired shares of FON Stock or PCS Stock
pursuant to the Purchase Rights Agreement, or
(B) become irrevocably committed to acquire,
and the Cable Partners have become irrevocably
committed to sell, shares of Sprint FON Stock
or Sprint PCS Stock pursuant to the Purchase
Rights Agreement (with such Beneficial Ownership
to be determined on a full-voting basis),
subject only to customary closing conditions,
if any; and (iii) FT, DT and their Affiliates
and Associates shall not be deemed to Beneficially
Own any incremental Voting Power resulting solely
from the increase in Voting Power provided for by
the application of Section 7.5(d) of the Articles.
"Board of Directors" means the board of
directors of Sprint.
"Business Day" means any day other than a
day on which commercial banks in the City of
New York, Paris, France or Frankfurt am Main,
Germany, are required or authorized by law to
be closed.
"Buyers" means DT and FT.
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"Bylaw Amendment" means the amendment to
the Bylaws in form reasonably satisfactory to
each Party to be effected by the Board of Directors
of Sprint in connection with this Agreement and
the PCS Restructuring Agreement.
"Cable Partner Registration Rights Agreement"
means the registration rights agreement among
Sprint and the Cable Partners to be entered into
pursuant to the PCS Restructuring Agreement.
"Cable Partners" means TCI, Comcast and Cox.
"Change of Control" means a:
(a) decision by the Board of Directors
to sell Control of Sprint or not to oppose a
third party tender offer for Voting Securities
of Sprint representing more than 35% of the
Voting Power of Sprint; or
(b) change in the identity of a
majority of the Directors due to (i) a proxy
contest (or the threat to engage in a proxy
contest) or the election of Directors by the
holders of any series of Preferred Stock of
Sprint; or (ii) any unsolicited tender,
exchange or other purchase offer which has
not be approved by a majority of the
Independent Directors,
provided that a Strategic Merger shall not be
deemed to be a Change of Control and, provided,
further, that any transaction between Sprint
and FT and DT or otherwise involving FT and DT
and any of their direct or indirect Subsidiaries
which are party to a contract therefor shall not
be deemed to be a Change of Control.
"Class A Common Stock" means the Class A
Common Stock of Sprint, as provided for in the
Articles, including the Old Class A Common Stock
and the Class A Common Stock -- Series DT (each
as referred to in the Proposed Charter Amendments).
"Class A Holders" means the holders of the
Class A Stock.
"Class A Provisions" has the meaning set
forth in the Articles, as amended from time to
time, including by the Proposed Charter Amendments.
"Class A Stock" means (i) prior to the
Primary Closing, the Class A Common Stock, (ii)
following the Primary Closing, but prior to the
Recapitalization, the Class A Common Stock and
the Series 3 PCS Stock, and (iii) following the
Recapitalization, the Class A Common Stock, the
Series 3 FON Stock and the Series 3 PCS Stock.
"Closing Price" means, with respect to a
security on any day, the last sale price, regular
way, or in case no such sale takes place on such
day, the average of the closing bid and asked
prices, regular way, in either case as reported
in the principal consolidated transaction
reporting system with respect to securities
listed or admitted to trading on The New York
Stock Exchange, Inc. or, if such
-45-
security is not listed or admitted to trading on
such exchange, as reported in the principal
consolidated transaction reporting system with
respect to securities listed on the principal
national securities exchange on which the
security is listed or admitted to trading or,
if the security is not listed or admitted to
trading on any national securities exchange,
the last quoted sale price or, if not so quoted,
the average of the high bid and low asked
prices in the over-the-counter market, as
reported by NASDAQ or such other system then
in use, or, if on any such date such security
is not quoted by any such organization, the
average of the closing bid and asked prices
as furnished by a professional market maker
making a market in the security selected in
good faith by the Board of Directors. If
the security is not publicly held or so listed
or publicly traded, "Closing Price" means the
Fair Market Value of such security.
"Code" means the Internal Revenue Code
of 1986, as amended, and the rules and
regulations promulgated thereunder.
"Comcast" means Comcast Corporation, a
Pennsylvania corporation.
"Common Stock" means the Common Stock,
par value U.S. $2.50 per share, of Sprint.
"Continuing Director" means any Director
who is unaffiliated with the Buyers and their
"affiliates" and "associates" (as each such
term is defined in Rule 12b-2 under the
Securities Exchange Act of 1934, as in effect
on October 1, 1982) and was a Director prior
to the time that any Buyer or such affiliate
or associate became an Interested Stockholder
(as such term is defined in the Fair Price
Provisions), and any successor of a Continuing
Director if such successor is not affiliated
with any such Interested Stockholder and is
recommended or elected to succeed a
Continuing Director by a majority of
Continuing Directors, provided that such
recommendation or election shall only be
effective if made at a meeting of Directors
at which at least seven Continuing Directors
are present.
"Contract" means any loan or credit
agreement, note, bond, indenture, mortgage,
deed of trust, lease, franchise, contract,
or other agreement, obligation, instrument or
binding commitment of any nature.
"Control" means, with respect to a Person
or Group, any of the following:
(a) ownership by such Person or
Group of Votes entitling it to exercise
in the aggregate more than 35 percent of
the Voting Power of the entity in question;
or
(b) possession by such Person or
Group of the power, directly or indirectly,
(i) to elect a majority of the board of
directors (or equivalent governing body)
of the entity in question; or (ii) to
direct or cause the direction of the
management and policies of or with respect
to the entity in question, whether through
ownership of securities, by contract or
otherwise.
"Cox" means ▇▇▇ Communications, Inc.,
a Delaware corporation.
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"CP Closing" means the consummation of
the Mergers (as defined in the PCS Restructuring
Agreement) and the other transactions
contemplated by the PCS Restructuring Agreement.
"CP Exchange" means the issuance of
shares of Series 2 PCS Stock by Sprint at the
CP Closing in exchange for certain interests
owned by the Cable Partners pursuant to the
PCS Restructuring Agreement.
"CP/FT-DT Top Up Purchase" means the
purchase by the Cable Partners under the PCS
Restructuring Agreement of shares of Series 2
PCS Stock in connection with the purchase by
FT and DT of shares of Sprint capital stock
pursuant to this Agreement.
"CP/Greenshoe Top Up Purchase" means
the purchase by the Cable Partners under the
PCS Restructuring Agreement of shares of
Series 2 PCS Stock in connection with the
Greenshoe.
"CP/IPO Top Up Purchase" means the
purchase by the Cable Partners under the
PCS Restructuring Agreement of shares of
Series 2 PCS Stock in connection with the
IPO.
"Director" means a member of the
Board of Directors.
"DT" has the meaning set forth in
the preamble.
"Exchange Act" means the Securities
Exchange Act of 1934, as amended, and the
rules and regulations thereunder.
"Fair Market Value" means, with
respect to any asset, shares or other
property, the cash price at which a
willing seller would sell and a willing
buyer would buy such asset, shares or
other property in an arm's-length
negotiated transaction without undue time
restraints, as determined in good faith by
a majority of the Independent Directors as
certified in a resolution delivered to all
of the holders of Class A Stock.
"Fair Price Provisions" means
ARTICLE SEVENTH of the Articles, and any
successor provision thereto.
"FON Stock" means the Series 1 FON
Stock, the Series 2 FON Stock and the
Series 3 FON Stock.
"French Translation Law" means the
loi n(degree) 94-665 du 4 aout 1994 relative
a l'emploi de la langue francaise.
"FT" has the meaning set forth in the
preamble.
"FT Law and Decrees" means (a) Act
N(degree) 83-675 of July 23, 1983
concerning the democratization of the public
sector, (b) Act. N(degree) 90-568 of July 2,
1990 concerning the organization of the
Post Office and Telecommunications public
service as amended by Act N(degree) 96-660
of July 26,
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1996 concerning the national undertaking
France Telecom and (c) Decree N(degree)
96-1174 of December 27, 1996 approving
the constitution of France Telecom,
including miscellaneous provisions
concerning the operation of France Telecom.
"GAAP" means United States generally
accepted accounting principles as in effect
from time to time.
"German Fee Regulations" means
Bundesgebuhrenordnung fur Rechtsanwalte
vom 26. Juli 1957 (BGBI) I S. 907 (as it
or any successor provision is from time to
time in effect).
"Governmental Approval" means any
consent, waiver, grant, concession or
License of, registration or filing with,
or declaration, report or notice to, any
Governmental Authority.
"Governmental Authority" means any
federation, nation, state, sovereign, or
government, any federal, supranational,
regional, state, local or political
subdivision, any governmental or
administrative body, instrumentality,
department or agency or any court,
administrative hearing body, arbitration
tribunal, commission or other similar dispute
resolving panel or body, and any other
entity exercising executive, legislative,
judicial, regulatory or administrative
functions of a government, provided that
the term "Governmental Authority" shall
not include FT, DT, Atlas S.A. or any of
their respective Subsidiaries.
"Greenshoe" has the meaning set
forth in Section 1.3 of this Agreement.
"Greenshoe Closing" means the
consummation of the purchase by FT and DT
of shares of Sprint capital stock pursuant
to Section 1.3 of this Agreement.
"Greenshoe Closing Date" means the
date of the Greenshoe Closing.
"Greenshoe Top Up Purchase" means
the purchase by FT and DT of a number of
shares of Series 3 PCS Stock sufficient for
FT and DT, in the aggregate, to Beneficially
Own 25% of the aggregate Voting Power
attributable to the shares of Series 1 PCS
Stock and Series 2 PCS Stock issued in the
Greenshoe and the CP/Greenshoe Top Up Purchase,
respectively.
"Group" means any group within the
meaning of Section 13(d)(3) of the Exchange
Act.
"Independent Director" has the meaning
set forth in the Articles.
"Initial Charter Amendment" means the
Amended and Restated Articles of Incorporation
of Sprint in form reasonably satisfactory to
each Party effecting the creation of the PCS
Stock and the creation of the PCS Group and
the Sprint FON Group, which Sprint shall file
with the Kansas Governmental Authorities on
or before the Primary Closing Date.
"Initial Other Agreements" means the
Registration Rights Agreement, the Standstill
Agreement, the Stockholders' Agreement, and
the Investor Confidentiality Agreements.
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"Investor Confidentiality Agreements"
means the Confidentiality Agreement between
Sprint and DT dated January 31, 1996 and the
Confidentiality Agreement between Sprint and
FT dated January 31, 1996.
"IPO" means the initial primary
underwritten public offering of Series 1 PCS
Stock pursuant to an effective registration
statement under the Securities Act, proposed
to be conducted by Sprint in accordance with
Sections 5.2 and 5.3, that Sprint currently
expects to generate net proceeds of between
$500 million and $1.1 billion.
"IPO Price" means the initial price per
share at which shares of Series 1 PCS
Stock are purchased by the public in the IPO.
"IPO Prospectus" means a prospectus
located within the Registration Statement
covering the shares of Series 1 PCS Stock
to be sold in the IPO.
"Kansas Control Share Acquisitions
Statute" means Kan. Stat. ▇▇▇. Section 17-
1286 et seq. (1988).
"Knowledge", or any phrase or term
of similar meaning, when used with respect
to any of the Parties, means the actual
knowledge of the executive officers of such
Party, without having made any special
investigation or inquiry regarding the
applicable subject matter.
"Law" means any foreign or domestic
law, statute, code, ordinance, rule or
regulation promulgated, or any order,
judgment, writ, stipulation, award,
injunction or decree entered, by a
Governmental Authority.
"License" means any license,
ordinance, authorization, permit, certificate,
variance, exemption, order, franchise or
approval, domestic or foreign.
"Lien" means any lien, pledge, claim,
encumbrance, mortgage or security interest
in real or personal property.
"Management and Allocation Policies"
means the policies to be adopted by the Board
of Directors, effective as of the Primary Closing
Date, governing the relationship between the PCS
Group (on the one hand) and the Sprint FON Group
(on the other hand).
"Material Adverse Effect" on any party
hereto means, with respect to any Party, the
effect of any event, occurrence, fact, condition
or change that is materially adverse to the
business, operations, results of operations,
financial condition, assets or liabilities of
such Person.
"Original Investment Agreement" has the
meaning set forth in the Recitals to this
Agreement.
"Party" and "Parties" have the meaning set
forth in the Recitals to this Agreement.
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"PCS Group" has the meaning set forth
in the Initial Charter Amendment.
"PCS Preferred Issuance" means the issuance
of the PCS Preferred Stock pursuant to the PCS
Restructuring Agreement.
"PCS Preferred Stock" means the Preferred
Stock -- Series 7 of Sprint, no par value per
share, which shall be created and issued pursuant
to the terms of the PCS Restructuring Agreement.
"PCS Restructuring Agreement" means the
Restructuring and Merger Agreement, dated as of
the date hereof, between Sprint and the other
parties listed therein.
"PCS Stock" means the Series 1 PCS Stock,
the Series 2 PCS Stock, the Series 3 PCS Stock
and the PCS Preferred Stock.
"Person" means any individual, corporation,
partnership, limited liability company, trust,
unincorporated association or other entity.
"Primary Closing" means the closing of the
actions contemplated by this Agreement to take
place concurrently with the CP Exchange (which
may include the CP Exchange Top Up Purchase if
the conditions to the CP Exchange Top Up Purchase
have been satisfied or waived by the appropriate
parties), as contemplated by this Agreement,
held on the date and at the place fixed in
accordance with Article I.
"Primary Closing Date" means the date of
the Primary Closing.
"Proceeding" means any action, litigation,
suit, proceeding or formal investigation or
review of any nature, civil, criminal, regulatory
or otherwise, before any Governmental Authority.
"Proposed Charter Amendments" means the
Initial Charter Amendment and the Subsequent
Charter Amendment.
"Proxy Statement" means a proxy statement
to be mailed to Sprint stockholders in connection
with the Stockholders Meeting.
"Purchase Rights Agreement" means the Top
Up Right Agreement dated May 26, 1998 among FT,
DT and the Cable Partners as in effect on the
date hereof.
"Recapitalization" means the
reclassification of Sprint Common Stock into
Series 1 FON Stock and Series 1 PCS Stock to
be effected by the filing of the Subsequent
Charter Amendment.
"Registration Rights Agreement" means
the Registration Rights Agreement dated as of
January 31, 1996, between Sprint, FT and DT.
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"Registration Statement" means a
registration statement on Form S-3 containing
the IPO Prospectus covering the shares of Series
1 PCS Stock to be sold in the IPO.
"SEC" means the Securities and Exchange
Commission.
"Secondary Closing" means the
consummation of the purchase by FT and DT
of shares of Sprint capital stock pursuant to
Section 1.2 of this Agreement.
"Secondary Closing Date" means the date
of the Secondary Closing.
"Securities Act" means the Securities
Act of 1933, as amended.
"Series 1 FON Stock" means the FON Common
Stock -- Series 1, par value to be determined,
of Sprint, which will be created by the filing
of the Subsequent Charter Amendment.
"Series 1 PCS Stock" means the PCS Common
Stock -- Series 1, par value to be determined,
of Sprint, which will be created on or about
the Primary Closing Date by the filing of the
Initial Charter Amendment.
"Series 2 FON Stock" means the FON Common
Stock -- Series 2, par value to be determined,
of Sprint, which will be created by the filing
of the Subsequent Charter Amendment.
"Series 2 PCS Stock" means the PCS Common
Stock -- Series 2, par value to be determined,
of Sprint, which will be created on or about the
Primary Closing Date by the filing of the
Initial Charter Amendment.
"Series 3 FON Stock" means the FON Common
Stock -- Series 3, par value to be determined,
of Sprint, which will be created by the filing
of the Subsequent Charter Amendment.
"Series 3 PCS Stock" means the PCS Common
Stock -- Series 3, par value to be determined,
of Sprint, which will be created on or about
the Primary Closing Date by the filing of the
Initial Charter Amendment.
"Sprint" means Sprint Corporation, a
Kansas corporation.
"Sprint FON Group" has the meaning set
forth in the Initial Charter Amendment.
"Sprint PCS" means Sprint Spectrum L.P.,
a Delaware limited partnership.
"SprintSub" means Sprint Global Venture,
Inc., a wholly-owned subsidiary of Sprint.
"Standstill Agreement" means the
Standstill Agreement, dated as of July 31, 1995,
among Sprint, FT and DT, as amended on June 24,
1997.
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"Stockholders' Agreement" means the
Stockholders' Agreement, dated as of January
31, 1996, among Sprint, FT and DT, as amended
on June 24, 1997.
"Stockholders Meeting" means a special
meeting to be held for the purpose of approving
the Initial Charter Amendment, the Subsequent
Charter Amendment and amendments to certain of
Sprint's equity-based incentive plans in
connection with the creation of the PCS Stock,
among other things.
"Strategic Merger" means a merger or
other business combination involving Sprint
(a) in which the Class A Holders are entitled
to retain or receive, as the case may be, voting
equity securities of the surviving parent entity
in exchange for or in respect of (by conversion or
otherwise) such Class A Stock, with an aggregate
Fair Market Value equal to at least 75% of the sum
of (i) the Fair Market Value of all consideration
which such Class A Holders have a right to receive
with respect to such merger or other business
combination, and (ii) if Sprint is the surviving
parent entity, the Fair Market Value of the equity
securities of the surviving parent entity which
the Class A Holders are entitled to retain, (b)
immediately after which the surviving parent
entity is an entity whose voting equity securities
are registered pursuant to Section 12(b) or
Section 12(g) of the Exchange Act or which
otherwise has any class or series of its voting
equity securities held by at least 500 holders
and (c) immediately after which no Person or
Group (other than the Class A Holders) owns
Voting Securities of such surviving parent
entity with Votes equal to more than 35 percent
of the Voting Power of such surviving parent
entity.
"Subsequent Charter Amendment" means the
Amendment to the Restated Articles of
Incorporation of Sprint in form reasonably
satisfactory to each Party effecting the
Recapitalization, which Sprint shall file
with the Kansas Governmental Authorities either
(i) on or before the Primary Closing Date or
(ii) within 120 days following the Primary
Closing.
"Subsidiary" of any Person as of any
relevant date means a corporation, company or
other entity (i) more than 50% of whose
outstanding shares or equity securities are, as
of such date, owned or controlled, directly or
indirectly through one or more Subsidiaries,
by such Person, and the shares or securities so
owned entitle such Person and/or its Subsidiaries
to elect at least a majority of the members of
the board of directors or other managing
authority of such corporation, company or other
entity notwithstanding the vote of the holders of
the remaining shares or equity securities so
entitled to vote or (ii) which does not have
outstanding shares or securities, as may be the
case in a partnership, joint venture or
unincorporated association, but more than 50%
of whose ownership interest is, as of such
date, owned or controlled, directly or
indirectly through one or more Subsidiaries,
by such Person, and in which the ownership
interest so owned entitles such Person
and/or Subsidiaries to make the decisions for
such corporation, company or other entity.
"TCI" means Tele-Communications, Inc.,
a Delaware corporation.
"Third Party Approval" means any
consent, waiver, grant, concession, license,
authorization, permit, franchise or approval
of, or notice to, any Person other than a
Governmental Authority.
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"Top Up Note" means notes of FT or DT,
as applicable, in form reasonably satisfactory
to each of the Parties, made payable to Sprint.
"Trading Days" means with respect to any
security, any day on which the principal national
securities exchange on which such security is
listed or admitted to trading or NASDAQ, if such
security is listed or admitted to trading
thereon, is open for the transaction of business
(unless such trading shall have been suspended
for the entire day) or, if such security is not
listed or admitted to trading on any national
securities exchange or NASDAQ, any day other than
a Saturday, Sunday, or a day on which banking
institutions in the State of New York are
authorized or obligated by law or executive
order to close.
"Transfer" means any act pursuant to
which, directly or indirectly, the ownership
of assets or securities in question is sold,
exchanged, assigned, transferred, conveyed,
delivered or otherwise disposed of.
"Trigger Date" means the date that the
conditions to closing set forth in Sections
8.1(a), 8.1(b) and 8.1(d) of the PCS
Restructuring Agreement have been satisfied
or waived.
"Volume Weighted Trading Average" means,
with respect to any share of capital stock as
of a specific date, the volume-weighted average
Closing Price for the 20 consecutive Trading
Days ending on the last Trading Day prior to
such date.
"Vote" means, with respect to any entity,
the ability to cast a vote at a stockholders',
members' or comparable meeting of such entity
with respect to the election of directors,
managers or other members of such entity's
governing body, or the ability to cast a
general partnership or comparable vote,
provided that with respect to Sprint only,
the term "Vote" means the ability to exercise
general voting power (as opposed to the exercise
of special voting or disapproval rights such as
those set forth in ARTICLE SIXTH of the Articles)
with respect to matters other than the election
of directors at a meeting of the stockholders of
Sprint.
"Voting Power" means, with respect to any
entity as at any date, the aggregate number of
Votes outstanding as at such date in respect of
such entity.
"Voting Securities" means, with respect
to an entity, any capital stock or debt securities
of such entity if the holders thereof are
ordinarily, in the absence of contingencies,
entitled to a Vote, even though the right to such
Vote has been suspended by the happening of such
a contingency, and in the case of Sprint, shall
include, without limitation, the Common Stock and
the Class A Stock, but shall not include any
shares issued pursuant to the Rights Agreement to
the extent such issuance is caused by action
of a holder of the Class A Stock.
"Wholly-Owned Subsidiary" means, as to any
Person, a Subsidiary of such Person in which 100%
of the equity and voting interest is owned,
directly or indirectly, by such Person.
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IN WITNESS WHEREOF, the Parties have caused
this Agreement to be duly executed as of the date
first above written.
SPRINT CORPORATION
By: /s/ ▇. ▇. ▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Chairman and Chief
Executive Officer
FRANCE TELECOM S.A.
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Senior Vice President
DEUTSCHE TELEKOM AG
By: /s/ ▇. ▇▇▇▇▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇
Title: Senior Executive
Director
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Schedules to Master Restructuring and
Investment Agreement
Schedule 3.2 Authorized Capital Stock;
Shares Issued and Outstanding;
Agreements relating to voting
or transfer of Voting
Securities.
Schedule 3.5 Governmental and Third Party
Approvals.
Schedule 8.1 (a) Associates of FT.
(b) Associates of DT.