Exhibit 3
AMENDED AND RESTATED STANDSTILL AGREEMENT
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THIS AMENDED AND RESTATED STANDSTILL AGREEMENT (this
"Agreement") dated as of _______ __, 1998 by and among SPRINT
CORPORATION, a corporation formed 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");
R E C I T A L S
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WHEREAS, Sprint, FT and DT entered into an Investment
Agreement dated as of July 31, 1995, as amended (the "Investment
Agreement"), pursuant to which FT and DT purchased shares of
capital stock of Sprint;
WHEREAS, as a condition to Sprint's entering into the
Investment Agreement, Sprint, FT and DT entered into a Standstill
Agreement dated as of July 31, 1995, which agreement was amended
on June 24, 1997 (as so amended, the "Original Standstill
Agreement");
WHEREAS, Sprint, FT and DT entered into a Master
Restructuring and Investment Agreement dated as of May 26, 1998,
(the "FT/DT Restructuring Agreement"), which contemplates, among
other things, the purchase by FT and DT of shares of PCS Common
Stock -- Series 3, par value $ per share, of Sprint;
WHEREAS, as a condition precedent to and in consideration
of the transactions contemplated in the FT/DT Restructuring
Agreement, Sprint, FT and DT are required to enter into this
Agreement and in reliance thereon Sprint, FT and DT have entered
into the FT/DT Restructuring Agreement;
NOW, THEREFORE, in consideration of these premises and the
covenants and agreements contained herein, and for other good and
valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, each of FT, DT and Sprint (each a "Party"
and collectively the "Parties"), intending to be legally bound,
hereby agree that the Original Standstill Agreement is hereby
amended and restated in its entirety as follows:
ARTICLE 1.
DEFINITIONS AND CONSTRUCTION
Section 1.1. Certain Definitions. As used in this
Agreement, the following terms shall have the meanings specified
below:
"Acquisition Proposal" shall mean any proposal involving a
transaction of the kind described in Section 8.6 of ARTICLE SIXTH
of Sprint's Articles.
"Affiliate" shall mean, with respect to any Person, any
other Person that directly, or indirectly through one or more
intermediaries, Controls or is Controlled by, or is under common
Control with, such Person, provided that (a) no JV Entity shall
be deemed an Affiliate of any Party unless (i) FT, DT and Atlas
own a majority of the Voting Power of such JV Entity and Sprint
does not have the Tie-Breaking Vote (as defined in Section 18.1
of the Joint Venture Agreement), (ii) FT, DT or Atlas has the
Tie-Breaking Vote or (iii) FT, DT or any of their Affiliates
cause such JV Entity to acquire Beneficial Ownership of any
Sprint equity securities; (b) FT, DT and Sprint shall not be
deemed Affiliates of each other; (c) Atlas shall be deemed an
Affiliate of FT and DT; and (d) the term "Affiliate" shall not
include any Government Affiliate.
"Aggregate Foreign Ownership Limitation" shall mean the
maximum aggregate percentage of equity interests of Sprint that
may be Owned of Record or Voted by Aliens under Section 310(b)(4)
of the Communications Act, without such ownership or voting
resulting in the possible loss, or possible failure to secure the
renewal or reinstatement, of any license or franchise of any
Governmental Authority held by Sprint or any of its Affiliates to
conduct any portion of the business of Sprint or such Affiliate,
as such maximum aggregate percentage may be increased from time
to time by amendments to such section or by waivers granted to
Sprint by the FCC or by other determinations of the FCC, provided
that if Section 310(b)(4) is repealed or otherwise made
inapplicable to the ownership of Sprint capital stock by FT and
DT, there shall be no Aggregate Foreign Ownership Limitation.
"Amended and Restated Stockholders' Agreement" shall have
the meaning set forth in Article VIII of the FT/DT Restructuring
Agreement.
"Amended Other Agreements" shall mean the FT/DT
Restructuring Agreement, the Amended and Restated Stockholders'
Agreement, the Amended and Restated Registration Rights Agreement
(as defined in the Amended and Restated Stockholders' Agreement),
and the Amended and Restated Confidentiality Agreements (as
defined in the Amended and Restated Stockholders' Agreement).
"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 FT/DT Restructuring 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 or
Associate thereof),
provided that (i) Class A Common Stock, Sprint FON Stock and
Sprint 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)
Sprint FON Stock and Sprint 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 Sprint
FON Stock or Sprint 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.
"Cable Partners" means Tele-Communications, Inc., Comcast
Corporation, and ▇▇▇ Communications, Inc., and any of their
respective successors (by merger, consolidation, transfer or
otherwise) to all or substantially all of their respective
businesses or assets.
"Class A Common Stock" shall mean the Class A Common Stock,
par value U.S. $2.50 per share, of Sprint.
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"Class A Stock" shall mean the Class A Common Stock, the
Series 3 FON Stock and the Series 3 PCS Stock.
"Communications Act" shall mean the United States
Communications Act of 1934 and the rules and regulations
thereunder.
"Control" (including, with its correlative meanings,
"Controlled by" and "under common Control with") shall mean, with
respect to a Person or Group:
(a) ownership by such Person or Group of Votes
entitling it to exercise in the aggregate more than 50 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.
"CP Closing" shall have the meaning set forth in Article
VIII of the FT/DT Restructuring Agreement.
"DT" shall have the meaning set forth in the introductory
paragraph of this Agreement.
"FT" shall have the meaning set forth in the introductory
paragraph of this Agreement.
"FT/DT Restructuring Agreement" means the Master
Restructuring and Investment Agreement dated as of May 26, 1998
by and among Sprint, FT and DT.
"Government Affiliate" shall mean any Governmental
Authority of France or Germany or any other Person Controlled,
directly or indirectly (other than by virtue of a government's
inherent regulatory or statutory powers to control persons or
entities within its jurisdiction), by any such Governmental
Authority, provided that FT, DT, Atlas and any other Person
directly, or indirectly through one or more intermediaries,
Controlled by FT, DT or Atlas shall not be Government Affiliates.
"Group" shall mean any group within the meaning of Section
13(d)(3) of the Exchange Act as in effect on the date hereof.
"Initial Percentage Limitations" shall have the meaning set
forth in Section 2.1(a)(i), as adjusted pursuant to Section
2.2(a).
"Initial Standstill Period" shall have the meaning set
forth in Section 2.1(a)(i).
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"Largest Other Holder" shall mean the Other Holder, if any,
who Beneficially Owns a larger percentage of the Outstanding
Sprint Voting Securities than any other Person, provided that,
for purposes of this definition, FT, DT, their Affiliates and
Associates and Qualified Stock Purchasers shall be considered a
single Person.
"Number of Shares Issuable With Respect to the Class A
Equity Interest in the FON Group" shall have the meaning set
forth in ARTICLE SIXTH, Section 10 of the Articles of
Incorporation of Sprint, as amended from time to time.
"Number of Shares Issuable With Respect to the Class A
Equity Interest in the PCS Group" shall have the meaning set
forth in ARTICLE SIXTH, Section 10 of the Articles of
Incorporation of Sprint, as amended from time to time.
"Other Holder" shall mean any Person other than (i) FT, DT,
any of their respective Affiliates or Associates or any Qualified
Stock Purchaser, (ii) Sprint, (iii) any Subsidiary of Sprint,
(iv) any employee benefit plan of Sprint or of any Subsidiary of
Sprint, or (v) any Person organized, appointed or established by
Sprint or any Subsidiary of Sprint for or pursuant to the terms
of any such plan.
"Outstanding Sprint FON Stock" shall mean the shares of
Sprint FON Stock outstanding as of any particular date, plus (i)
all shares of Sprint FON Stock which as of such date any of FT or
DT or any of their respective Affiliates is committed to acquire
from Sprint or has the right to acquire (or to commit to acquire)
from Sprint pursuant to the FT/DT Restructuring Agreement and the
Amended and Restated Stockholders' Agreement, and (ii) the
aggregate Number of Shares Issuable With Respect to the Class A
Equity Interest in the FON Group.
"Outstanding Sprint PCS Stock" shall mean the shares of
Sprint PCS Stock outstanding as of any particular date, plus (i)
all shares of Sprint PCS Stock which as of such date any of FT or
DT or any of their respective Affiliates is committed to acquire
from Sprint or has the right to acquire (or to commit to acquire)
from Sprint pursuant to the Amended and Restated Stockholders'
Agreement, plus (ii) the aggregate Number of Shares Issuable With
Respect to the Class A Equity Interest in the PCS Group as of
such date.
"Outstanding Sprint Voting Securities" shall mean (i) the
Sprint Voting Securities outstanding as of any particular date,
plus (ii) all Sprint Voting Securities which as of such date any
of FT or DT or any of their respective Affiliates is committed to
acquire from Sprint or has the right to acquire (or to commit to
acquire) from Sprint pursuant to the Amended and Restated
Stockholders' Agreement.
"Owned of Record or Voted by" shall have the meaning
specified in Section 310(b)(4) of the Communications Act and
published interpretations thereof by the FCC and the U.S. federal
courts.
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"Percentage Limitations" shall have the meaning set forth
in Sections 2.1(a)(i) and 2.1(a)(ii), each as adjusted pursuant
to Section 2.2(a).
"Percentage Limitation Adjustment Event" shall mean the
acquisition by an Other Holder of Beneficial Ownership of
Outstanding Sprint Voting Securities in excess of the applicable
Percentage Limitations as reflected in clause (A) of Section
2.1(a)(i) or clause (A) of Section 2.1(a)(ii), as the case may
be, unless any of FT, DT or any Qualified Subsidiary shall have
breached any of the provisions of Section 3.1 or 3.2 of this
Agreement or any corresponding provision of any Qualified
Subsidiary Standstill Agreement and such breach resulted in, or
was intended to facilitate, such Other Holder's acquisition of
Beneficial Ownership of Outstanding Sprint Voting Securities in
excess of such applicable Percentage Limitations.
"Percentage Ownership Interest" shall mean, with respect to
any Person, that percentage of the Voting Power of Sprint
represented by Votes associated with the Sprint Voting Securities
owned of record by such Person or by its nominees.
"Purchase Rights Agreement" shall mean the Top Up Rights
Agreement dated as of May 26, 1998 among FT, DT, Sprint and the
Cable Partners as in effect on such date.
"Qualified Stock Purchaser Standstill Agreement" shall mean
a Standstill Agreement in form and substance satisfactory to
Sprint, FT and DT.
"Qualified Subsidiary Standstill Agreement" shall mean a
Standstill Agreement in the form of Exhibit A.
"Recapitalization" shall have the meaning set forth in
Article VIII of the FT/DT Restructuring Agreement.
"Record Date Period" shall mean a period of ten Trading
Days beginning on the ninth Trading Day (as defined in the
Amended and Restated Stockholders' Agreement) before a record
date for a meeting of Sprint's stockholders or for the payment of
dividends and ending on (and including) such record date (which
shall be a Trading Day).
"Related Company" shall mean any Person not Controlled by
FT or DT, but in which FT, DT and their respective Affiliates and
Associates, individually or in the aggregate, directly or
indirectly through one or more intermediaries, own securities
entitling them to exercise in the aggregate more than 35 percent
of the Voting Power of such Person.
"Series 1 FON Stock" shall mean the FON Common Stock --
Series 1, par value U.S. $___ per share, of Sprint to be created
in connection with the Recapitalization.
"Series 1 PCS Stock" shall mean the PCS Common Stock --
Series 1, par value U.S. $___ per share, of Sprint to be created
by the Initial Charter Amendment.
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"Series 2 FON Stock" shall mean the FON Common Stock --
Series 2, par value U.S. $___ per share, of Sprint to be created
by the Subsequent Charter Amendment.
"Series 2 PCS Stock" shall mean the PCS Common Stock --
Series 2, par value U.S. $___ per share, of Sprint to be created
by the Initial Charter Amendment.
"Series 3 FON Stock" shall mean the FON Common Stock --
Series 3, par value U.S. $___ per share, of Sprint to be created
by the Subsequent Charter Amendment.
"Series 3 PCS Stock" shall mean the PCS Common Stock --
Series 3, par value U.S. $___ per share, of Sprint to be created
by the Initial Charter Amendment.
"Sprint" shall have the meaning set forth in the
introductory paragraph of this Agreement.
"Sprint FON Common Stock" shall mean (i) prior to the
Recapitalization, the Common Stock, par value U.S. $2.50 per
share, of Sprint, and (ii) following the Recapitalization, the
Series 1 FON Stock and the Series ▇ ▇▇▇ ▇▇▇▇▇.
"▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇" shall mean the Sprint FON Common Stock
and the Series 3 FON Stock.
"Sprint PCS Common Stock" shall mean the Series 1 PCS Stock
and the Series 2 PCS Stock.
"Sprint PCS Preferred Stock" shall mean the Preferred Stock
-- Series 7, no par value, of Sprint, which is to be created
prior to the CP Closing.
"Sprint PCS Stock" shall mean the Sprint PCS Common Stock,
the Sprint PCS Preferred Stock and the Series 3 PCS Stock.
"Sprint Rights Plan" shall mean the Rights Agreement dated
as of June 9, 1997, as amended, between Sprint and UMB Bank,
n.a., as rights agent.
"Sprint Voting Securities" shall mean the Sprint FON Common
Stock, the Sprint PCS Common Stock, the Sprint PCS Preferred
Stock, the Class A Stock and any other securities of Sprint
having the right to Vote.
"Strategic Investor" shall mean any Person which owns
directly any equity interests in a Qualified Subsidiary, other
than FT, DT, any wholly owned Subsidiary of FT or DT or a Passive
Financial Institution.
"Strategic Investor Standstill Agreement" shall mean a
Standstill Agreement in the form of Exhibit B.
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"Subsequent Percentage Limitations" shall have the meaning
set forth in Section 2.1(a)(ii), as adjusted pursuant to Section
2.2(a).
"Vote" shall mean, as to any entity, the ability to cast a
vote at a stockholders' or comparable meeting of such entity with
respect to the election of directors or other members of such
entity's governing body, provided that:
(i) with respect to Sprint only, the term "Vote" shall mean
the ability to exercise general voting power (as opposed to the
exercise of special voting or disapproval rights such as those
set forth in the Class A Provisions) with respect to matters
other than the election of directors at a meeting of the
stockholders of Sprint;
(ii) with respect to Sprint only, the term "Vote" shall
include the aggregate number of Votes represented by all Sprint
Voting Securities which as of such date any of FT or DT or any of
their respective Affiliates Beneficially Owns or is committed to
acquire from Sprint or has the right to acquire (or to commit to
acquire) from Sprint pursuant to the Amended and Restated
Stockholders' Agreement;
(iii) except as set forth in clause (iv) of this definition,
with respect to Sprint only, in determining the number of Votes
outstanding at any date and/or represented by any Sprint Voting
Securities at any date, a record date for determining the
stockholders entitled to vote shall be deemed to have been set by
the Board of Directors of Sprint on each such date and
accordingly the number of Votes represented by the Sprint PCS
Stock on any given date shall be deemed to have been adjusted in
the manner provided in Section 3.2 of Article SIXTH of the
Articles as if such date were a record date for determining the
stockholders entitled to vote; and
(iv) notwithstanding clause (iii) of this definition,
during a Record Date Period, the number of Votes outstanding at
any date from and including the first day of such period and to
and including the last day of such period and/or represented by
any Sprint Voting Securities at any date during such period shall
be determined in the manner provided in Section 3.2 of Article
SIXTH with respect to the record date occurring on the last day
of such Record Date Period including, in the case of a record
date for the payment of dividends, as if such date were a record
date for determining the stockholders entitled to vote.
"Voting Power" shall mean, as to any entity as at any date,
the aggregate number of Votes outstanding as at such date in
respect of such entity, provided that, in the case of Sprint, the
term "Voting Power" shall mean the aggregate number of Votes
represented by all Outstanding Sprint Voting Securities.
In addition to the foregoing, each of the following terms
shall have the respective meanings given to such term in Article
I of the Amended and Restated Stockholders' Agreement: Alien,
Applicable Law, Articles, Associate, Atlas, Change of Control,
Class A Provisions, Exchange Act, FCC, France, Germany,
Governmental Authority, Initial Charter Amendment, Joint Venture
Agreement, Joint Venture Documents, JV Entity, Passive Financial
Institution, Person, Qualified
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Stock Purchaser, Qualified Subsidiary, SEC and Subsidiary.
Section 1.2 Interpretation and Construction of this
Agreement. The definitions in Section 1.1 shall apply equally to
both the singular and plural forms of the terms defined. Whenever
the context may require, any pronoun shall include the
corresponding masculine, feminine and neuter forms. The words
"include," "includes" and "including" shall be deemed to be
followed by the phrase "without limitation." All references
herein to Articles, Sections and Exhibits shall be deemed to be
references to Articles and Sections of, and Exhibits to, this
Agreement unless the context shall otherwise require. The
headings of the Articles and Sections are inserted for
convenience of reference only and are not intended to be a part
of or to affect the meaning or interpretation of this Agreement.
Unless the context shall otherwise require or provide, any
reference to any agreement or other instrument or statute or
regulation is to such agreement, instrument, statute or
regulation as amended and supplemented from time to time (and, in
the case of a statute or regulation, to any successor provision).
ARTICLE 2.
RESTRICTIONS ON ACQUISITION OF VOTING SECURITIES BY
FT, DT AND THEIR AFFILIATES AND ASSOCIATES
Section 2.1 Acquisition Restrictions.
(a) Subject to Sections 2.2, 2.3 and 2.4, each of FT
and DT agrees that it will not, and will cause each of its
respective Affiliates and Associates not to, directly or
indirectly, acquire, offer to acquire, or agree to acquire, by
purchase or otherwise, Beneficial Ownership of:
(i) any Sprint Voting Securities on or prior to July 31,
2010 (the "Initial Standstill Period"), if any of the
following would occur: (A) the Votes represented by
the Sprint Voting Securities Beneficially Owned in the
aggregate by FT, DT and their respective Affiliates
and Associates would represent in the aggregate more
than 20% of the Voting Power represented by the
Outstanding Sprint Voting Securities, (B) the Votes
represented by the shares of Class A Common Stock (to
the extent representing a Number of Shares Issuable
With Respect to the Class A Equity Interest in the FON
Group) and Sprint FON Stock Beneficially Owned in the
aggregate by FT, DT and their respective Affiliates
and Associates would represent in the aggregate more
than 33% of the Voting Power represented by the
Outstanding Sprint FON Stock, or (C) the Votes
represented by the shares of Class A Common Stock (to
the extent representing a Number of Shares Issuable
With Respect to the Class A Equity Interest in the PCS
Group) and Sprint PCS Stock Beneficially Owned in the
aggregate by FT, DT and their respective Affiliates
and Associates would
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represent in the aggregate more than 33% of the Voting
Power represented by the Outstanding Sprint PCS Stock
(clauses (A), (B) and (C) being collectively referred
to as the "Initial Percentage Limitations"); or
(ii) any Sprint Voting Securities after the Initial
Standstill Period, if any of the following would
occur: (A) the Votes represented by the Sprint Voting
Securities Beneficially Owned in the aggregate by FT,
DT and their respective Affiliates and Associates
would represent in the aggregate more than 30% of the
Voting Power represented by the Outstanding Sprint
Voting Securities, (B) the Votes represented by the
shares of Class A Common Stock (to the extent
representing a Number of Shares Issuable With Respect
to the Class A Equity Interest in the FON Group) and
Sprint FON Stock Beneficially Owned in the aggregate
by FT, DT and their respective Affiliates and
Associates would represent in the aggregate more than
33% of the Voting Power represented by the Outstanding
Sprint FON Stock, (C) the Votes represented by the
shares of Class A Common Stock (to the extent
representing a Number of Shares Issuable With Respect
to the Class A Equity Interest in the PCS Group) and
Sprint PCS Stock Beneficially Owned in the aggregate
by FT, DT and their respective Affiliates and
Associates would represent in the aggregate more than
33% of the Voting Power represented by the Outstanding
Sprint PCS Stock (clauses (A), (B) and (C) being
collectively referred to as the "Subsequent Percentage
Limitations"; the Initial Percentage Limitations and
the Subsequent Percentage Limitations, as the case may
be, also being referred to as the "Percentage
Limitations"), or (D) the Sprint Voting Securities
Beneficially Owned in the aggregate by FT and DT and
their respective Affiliates and Associates would
exceed 80% of the Aggregate Foreign Ownership
Limitation; or
(iii)any Sprint nonvoting equity securities, but not
including any "Derivative Security" (as defined in the
Purchase Rights Agreement) purchased by FT or DT from
the Cable Partners under the Purchase Rights Agreement
so long as the acquisition of the shares acquired as a
result of such derivative instruments is not otherwise
in violation of this Agreement.
(b) In addition to any other restrictions contained
herein or in the Joint Venture Documents, the Parties agree that
none of the Parties will cause any JV Entity to, directly or
indirectly, acquire, offer to acquire, or agree to acquire, by
purchase or otherwise, Beneficial Ownership of any equity
securities of Sprint.
Section 2.2. Exception to Purchase Restrictions.
(a) Subject to Section 2.4, if a Percentage Limitation
Adjustment Event shall occur, then the applicable Percentage
Limitations shall be increased to the extent necessary so that
Sections 2.1(a)(i) and 2.1(a)(ii) do not prohibit FT, DT and
their respective Affiliates from acquiring Beneficial Ownership
of additional Sprint Voting Securities so long as each of the
following
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conditions is satisfied: (i) the Votes represented by
the Sprint Voting Securities Beneficially Owned in the aggregate
by FT, DT and their respective Affiliates and Associates and any
Qualified Stock Purchasers are no greater than the Votes
represented by the Sprint Voting Securities Beneficially Owned by
the Largest Other Holder, after giving effect to any dilution to
such holder resulting from the operation of the Sprint Rights
Plan, (ii) the Votes represented by the shares of Class A Common
Stock (to the extent representing a Number of Shares Issuable
With Respect to the Class A Equity Interest in the FON Group) and
Sprint FON Stock Beneficially Owned in the aggregate by FT, DT
and their respective Affiliates and Associates do not represent
in the aggregate more than 33% of the Voting Power represented by
the Outstanding Sprint FON Stock, (iii) the Votes represented by
the shares of Class A Common Stock (to the extent representing a
Number of Shares Issuable With Respect to the Class A Equity
Interest in the PCS Group) and Sprint PCS Stock Beneficially
Owned in the aggregate by FT, DT and their respective Affiliates
and Associates do not represent in the aggregate more than 33% of
the Voting Power represented by the Outstanding Sprint PCS Stock,
and (iv) the Sprint Voting Securities Beneficially Owned in the
aggregate by FT and DT and their respective Affiliates do not at
any time exceed 80% of the Aggregate Foreign Ownership
Limitation.
(b) Subject to Section 2.4, if an acquisition by FT,
DT or any of their respective Affiliates or Associates of
Beneficial Ownership of additional Sprint Voting Securities
otherwise permitted by Section 2.1(a)(ii) or 2.2(a) is prohibited
thereunder due to clause (D) of Section 2.1(a)(ii) or due to
clause (iv) of Section 2.2(a), then FT or DT may assign to one or
more non-Alien Qualified Stock Purchasers in accordance with
Section 7.2 of the Amended and Restated Stockholders' Agreement
their rights under Section 2.1(a)(ii) or 2.2(a) to purchase in
the aggregate the number of shares of Sprint Voting Securities
which equals the number of shares of Sprint Voting Securities the
purchase of which is prohibited by clause (D) of Section
2.1(a)(ii) or clause (iv) of Section 2.2(a), as the case may be.
Section 2.3. Effect of Action by Sprint; Inadvertent Action.
(a) Subject to Section 2.3(b), neither FT nor DT shall
be deemed in violation of this Article 2 if the Beneficial
Ownership of Sprint Voting Securities by FT, DT and their
respective Affiliates and Associates exceeds the applicable
Percentage Limitations (i) solely as a result of an acquisition
of Sprint Voting Securities by Sprint (including as a result of a
redemption by Sprint of its Sprint PCS Preferred Stock) that, by
reducing the number of Outstanding Sprint Voting Securities,
increases the proportionate number of Sprint Voting Securities
Beneficially Owned by FT, DT and their respective Affiliates and
Associates, (ii) if FT, DT and their Affiliates and Associates
are in compliance with clauses (B) and (C) of Section 2.1(a)(i)
(or, after the Initial Standstill Period, clauses (B) and (C) of
Section 2.1(a)(ii)), the Beneficial Ownership of Sprint Voting
Securities by FT, DT and their respective Affiliates and
Associates does not exceed the Percentage Limitation set forth in
clause (A) of Section 2.1(a)(i) (or, after the Initial Standstill
Period, clause (A) of Section 2.1(a)(ii)) by more than 0.5% and
the acquisitions of Beneficial Ownership which resulted in FT, DT
and their respective Affiliates and Associates exceeding such
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Percentage Limitation were undertaken in good faith and such
applicable Percentage Limitation was exceeded inadvertently,
(iii) solely as a result of any readjustment in the relative
Voting Power of the Sprint FON Stock and the Sprint PCS Stock in
accordance with the terms of the Articles, (iv) solely as a
result of a redemption or conversion of any Sprint PCS Stock
pursuant to ARTICLE SIXTH, Section 7 of the Articles, or (v)
because FT, DT or their respective Affiliates or Associates
acquire Beneficial Ownership of Sprint Voting Securities in
excess of the applicable Percentage Limitations in reliance on
information regarding the number of outstanding shares of Sprint
provided directly to any of FT, DT and their respective
Affiliates and Associates by Sprint in response to a request for
such information by any of FT, DT and their respective Affiliates
and Associates immediately prior to such purchase.
(b) Notwithstanding Section 2.3(a), the applicable
Percentage Limitations shall be deemed exceeded if (i) in the
case of Section 2.3(a)(i), FT, DT or any of their respective
Affiliates or Associates acquires Beneficial Ownership of any
additional Sprint Voting Securities after it has been notified of
an acquisition of Sprint Voting Securities by Sprint (including
as a result of a redemption by Sprint of its Sprint PCS Preferred
Stock), (ii) in the case of Section 2.3(a)(ii), FT, DT or any of
their respective Affiliates or Associates acquires Beneficial
Ownership of any additional Sprint Voting Securities after it has
been notified or has knowledge that one or more of the applicable
Percentage Limitations has been exceeded, (iii) in the case of
Section 2.3(a)(iii), after a readjustment in the relative Voting
Power of the Sprint FON Stock and the Sprint PCS Stock which
results in FT, DT and their respective Affiliates and Associates
having Beneficial Ownership of Sprint Voting Securities in excess
of any of the applicable Percentage Limitations, FT, DT or any of
their respective Affiliates or Associates acquires Beneficial
Ownership of any additional Sprint Voting Securities, after being
notified of, or having knowledge of such readjustment in the
relative Voting Power, (iv) in the case of Section 2.3(a)(iv),
after the redemption or conversion of any Sprint PCS Stock
pursuant to ARTICLE SIXTH, Section 7 of the Articles which
results in FT, DT and their respective Affiliates and Associates
having Beneficial Ownership of Sprint Voting Securities in excess
of any of the applicable Percentage Limitations, FT, DT or any of
their respective Affiliates or Associates acquires Beneficial
Ownership of any additional Sprint Voting Securities after being
notified of, or having knowledge of, such redemption or
conversion, and (v) in the case of Section 2.3(a)(v), FT, DT or
any of their respective Affiliates or Associates acquires
Beneficial Ownership of additional Sprint Voting Securities after
it has been notified that the information regarding the number of
outstanding shares previously provided to it was incorrect and it
has been provided by Sprint with correct information, unless in
the case of clauses (i), (ii), (iii), (iv) and (v):
(x) upon the acquisition of Beneficial Ownership of
such additional Sprint Voting Securities, FT, DT and their
respective Affiliates and Associates do not Beneficially
Own in the aggregate more than any of the applicable
Percentage Limitations, or
(y) subject to the rights of Sprint in Section 5.7 of
the Amended and Restated Stockholders' Agreement, such
acquisition is effected pursuant to (A) the exercise of
equity purchase rights by FT or DT pursuant to the Amended
and Restated Stockholders' Agreement, or (B) market
purchases which are made solely in lieu of the exercise of
equity
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purchase rights by FT or DT pursuant to the Amended and
Restated Stockholders' Agreement following the issuance of
securities by Sprint, so long as (1) either (I) FT or DT,
as the case may be, has irrevocably waived its rights to
exercise the equity purchase rights in respect of which
such market purchases are made in lieu thereof, or (II) the
time period for the exercise of such equity purchase rights
has expired without the exercise of such rights, and (2)
following such market purchases, the Percentage Ownership
Interest of FT, DT and their respective Affiliates and
Associates does not exceed the Percentage Ownership
Interest of FT, DT and their respective Affiliates and
Associates which would have been in effect had FT, DT and
their respective Affiliates exercised such equity purchase
rights.
Section 2.4. Sprint Rights Plan.
(a) Notwithstanding the provisions of Sections 2.1 and
2.2, each of FT and DT agrees that it will not, and will cause
each of its respective Affiliates not to, directly or indirectly,
acquire, offer to acquire, or agree to acquire, by purchase or
otherwise, Beneficial Ownership of any Sprint Voting Securities
if such acquisition would result in FT or DT or any of their
respective Affiliates being deemed an Acquiring Person (as such
term is defined in the Sprint Rights Plan) 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 Sprint Rights Plan).
(b) If the Sprint Board of Directors amends or waives
the provisions of the Sprint Rights Plan in such a manner to
permit an Other Holder to acquire Beneficial Ownership of Sprint
Voting Securities having Votes in excess of the applicable
Percentage Limitations without such acquisition resulting in the
Other Holder being deemed an Acquiring Person or resulting in the
occurrence of a Stock Acquisition Date, Distribution Date,
Section 11(a)(ii) Event or Section 13 Event or makes any other
changes to the Sprint Rights Plan which would permit any Other
Holder to own Sprint Voting Securities having Votes in excess of
the applicable Percentage Limitations without triggering adverse
consequences under the Sprint Rights Plan to such Other Holder,
then Sprint will amend or waive the provisions of the Sprint
Rights Plan so that the Sprint Rights Plan does not impose any
prohibition (including any prohibition on the ownership of Voting
Securities), on FT, DT and their respective Affiliates and
Associates which is more restrictive than the restrictions
imposed on any Other Holder.
ARTICLE 3.
OTHER STANDSTILL PROVISIONS; QUORUM
Section 3.1. Standstill Covenants. Each of FT and DT agrees
that it will not, and it will cause each of its respective
Affiliates and Associates not to, directly or indirectly, alone
or in concert with others (including with any Government
Affiliate, Related Company or Qualified Stock
-13-
Purchaser), unless specifically requested in writing by the
Chairman of Sprint or by a resolution of a majority of the
directors of Sprint, take any of the actions set forth below,
except to the extent expressly permitted or provided for by the
Amended Other Agreements and the Joint Venture Documents:
(a) effect, seek, offer, propose (whether publicly or
otherwise) or cause or participate in, or assist any other Person
to effect, seek, offer or propose (whether publicly or otherwise)
or participate in:
(i) any acquisition of Beneficial Ownership of Sprint
Voting Securities or other equity interests in Sprint
which would result in a breach of Article 2 of this
Agreement;
(ii) any tender or exchange offer, merger, consolidation,
share exchange or business combination involving
Sprint or any material portion of its business or any
purchase of all or any substantial part of the assets
of Sprint or any material portion of its business,
provided that nothing in this clause (ii) shall
prohibit discussions by the Parties in connection with
the conduct of the business of the JV Entities in the
manner contemplated by the Joint Venture Documents or
in connection with offers by FT or DT to purchase
equity interests owned by Sprint in the JV Entities;
(iii)any recapitalization, restructuring, liquidation,
dissolution or other extraordinary transaction with
respect to Sprint or any material portion of its
business, provided that nothing in this clause (iii)
shall prohibit discussions by the Parties in
connection with the conduct of the business of the JV
Entities or in connection with offers by FT or DT to
purchase equity interests owned by Sprint in the JV
Entities; or
(iv) any "solicitation" of "proxies" (as such terms are
used in the proxy rules of the SEC but without regard
to the exclusion set forth in Section 14a-1(l)(2)(iv)
from the definition of "solicitation") with respect to
Sprint or any of its Affiliates or any action
resulting in such Person becoming a "participant" in
any "election contest" (as such terms are used in the
proxy rules of the SEC) with respect to Sprint or any
of its Affiliates;
(b) propose any matter for submission to a vote of
stockholders of Sprint or any of its Affiliates; provided that
nothing in this Section 3.1(b) shall restrict the manner in which
the members of the Board of Directors of Sprint elected by the
holders of Class A Stock may (i) vote on any matter submitted to
such Board, or (ii) participate in deliberations or discussions
of such Board (including making suggestions and raising issues to
the Board, so long as such actions do not otherwise violate any
other provision of this Section 3.1 or Section 3.2) in their
capacity as members of such Board and in no other capacity,
including any capacity such persons serving as directors
otherwise may have as a director, officer, employee, agent or
representative of any other Person, including any holder of Class
A Stock;
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(c) form, join or participate in a Group with respect
to any Sprint Voting Securities (other than any Group whose
members consist solely of FT, DT, any of their respective
Affiliates and Associates and any Qualified Subsidiaries);
(d) grant any proxy with respect to any Sprint Voting
Securities to any Person not designated by Sprint, except for
proxies granted to FT or DT or Qualified Subsidiaries or to
individuals who are officers, employees or regular agents or
advisors of FT or DT or Qualified Subsidiaries who have received
specific instructions from FT, DT or Qualified Subsidiaries, as
the case may be, as to the voting of such Sprint Voting
Securities with respect to the matter or matters for which the
proxy is granted;
(e) deposit any Sprint Voting Securities in a voting
trust or subject any Sprint Voting Securities to any arrangement
or agreement with respect to the voting of such Sprint Voting
Securities or other agreement having similar effect, except for
agreements solely among FT, DT and any Qualified Subsidiary;
(f) execute any written stockholder consent with
respect to Sprint, except for written consents executed by such
Persons as holders of the Class A Stock in connection with (i)
the election of Class A Directors (as defined in the Articles),
(ii) the approval or disapproval of a Subject Event, Major
Issuance or Major Competitor Transaction (each as defined in the
Articles) during the period in which the holders of the Class A
Stock are entitled to exercise disapproval rights with respect to
such matter, (iii) any vote by the holders of Class A Common
Stock, Series 3 FON Stock, or Series 3 PCS Stock with respect to
which holders of each such class or series of stock is entitled
to vote separately as a class, or (iv) any vote by the holders of
the Class A Stock with respect to which such holders are entitled
to vote together as a single class;
(g) take any other action to seek to affect the
control of the management or Board of Directors of Sprint or any
of its Affiliates; provided that nothing in this Section 3.1(g)
shall restrict the manner in which the members of the Board of
Directors of Sprint elected by the holders of Class A Stock may
(i) vote on any matter submitted to such Board, or (ii)
participate in deliberations or discussions of such Board
(including making suggestions and raising issues to the Board, so
long as such actions do not otherwise violate any other provision
of this Section 3.1 or Section 3.2) in their capacity as members
of such Board and in no other capacity, including any capacity
such persons serving as directors otherwise may have as a
director, officer, employee, agent or representative of any other
Person, including any holder of Class A Stock;
(h) enter into any discussions, negotiations,
arrangements or understandings with any Person (including any
Government Affiliate, Related Company or Qualified Stock
Purchaser) other than FT, DT, their Affiliates, Associates and
their respective directors, officers, employees, agents or
advisors with respect to any of the foregoing, or advise, assist,
encourage or seek to persuade others to take any action with
respect to any of the foregoing;
-15-
(i) disclose to any Person (including any Government
Affiliate, Related Company or Qualified Stock Purchaser) other
than FT, DT, their Affiliates, Associates and their respective
directors, officers, employees, agents or advisors any intention,
plan or arrangement inconsistent with the foregoing or with the
restrictions on transfer set forth in Article II of the
Stockholders' Agreement or form any such intention which would
result in FT, DT or any of their respective Affiliates or
Associates being required to make any such disclosure in any
filing with a Governmental Authority or being required by
Applicable Law to make a public announcement with respect
thereto; or
(j) request Sprint or any of its Affiliates,
directors, officers, employees, representatives, advisors or
agents, directly or indirectly, to amend or waive in any material
respect this Agreement (including this Section 3.1(j)) or the
articles of incorporation or the bylaws of Sprint or any of its
Affiliates.
Section 3.2. Press Releases, Etc. by FT and DT.
(a) Subject to Section 3.2(b), each of FT and DT may
issue such press releases and make such other public
communications to the financial community and to its stockholders
and such other public statements made in the ordinary course
relating to its investment in Sprint, in each case as it
reasonably deems appropriate and customary. Prior to making any
such press release or other communication, FT and DT will use
reasonable efforts to consult with Sprint in good faith regarding
the form and content of any such communication, and FT and DT
will use reasonable efforts to coordinate any such communication
with any decisions reached by Sprint with respect to disclosures
relating to such matters.
(b) Notwithstanding the provisions of Section 3.2(a),
unless required by Applicable Law, neither FT nor DT, nor any of
their respective Affiliates or Associates, may make any press
release, public announcement or other communication with respect
to any of the matters described in Sections 3.1(a), 3.1(b),
3.1(c), 3.1(g), 3.1(h) or 3.1(j) without the prior written
consent of the Chairman of Sprint or by a resolution of a
majority of the directors of Sprint. Nothing in this Section 3.2
shall permit FT or DT to take any action which would otherwise
violate any provision contained in Section 3.1.
Section 3.3. Voting of Sprint Voting Securities. Except as
set forth in Sections 3.1(d), 3.1(e) and 3.1(f), nothing in
Section 3.1 shall restrict the manner in which FT, DT and their
respective Affiliates may vote their Sprint Voting Securities.
Section 3.4. Quorum. Each of FT and DT shall use reasonable
efforts to ensure that they shall be present, and shall use
reasonable efforts to cause their respective Affiliates and
Associates owning Sprint Voting Securities to be present, in each
case, in person or by proxy, at all meetings of stockholders of
Sprint so that all Sprint Voting Securities Beneficially Owned by
FT and DT and their respective Affiliates and Associates shall be
counted for purposes of determining the presence of a quorum at
such meeting.
-16-
Section 3.5. Notice of Proposals Regarding Acquisition
Transactions. Each of FT and DT agrees that it will notify Sprint
promptly if any inquiries or proposals which FT or DT reasonably
believes are of substance are received by, any information is
exchanged with respect to, or any negotiations or substantive
discussions are initiated or continued with, FT or DT or any of
their respective Affiliates regarding any Acquisition Proposal
involving Sprint or any purchase of any of the shares of capital
stock of Sprint Beneficially Owned by FT, DT or any of their
respective Affiliates pursuant to a tender offer or exchange
offer.
ARTICLE 4.
OBLIGATIONS OF OTHER ENTITIES
Section 4.1. Qualified Subsidiaries. FT and DT shall cause
each Person which, as a result of the acquisition of Beneficial
Ownership of any Sprint Voting Securities, would become a
Qualified Subsidiary to execute a Qualified Subsidiary Standstill
Agreement prior to and as a condition to the effectiveness of
such acquisition.
Section 4.2. Strategic Investors. FT and DT shall cause
each Person which, as a result of an acquisition of Beneficial
Ownership of any equity interest in a Qualified Subsidiary, would
become a Strategic Investor (and any Person who Beneficially Owns
more than 35% of the Voting Power, or otherwise Controls, such
acquiring Person) to execute a Strategic Investor Standstill
Agreement prior to and as a condition to the effectiveness of
such acquisition.
ARTICLE 5.
MISCELLANEOUS
Section 5.1. Termination. The provisions of this Agreement
shall terminate if the Company proceeds with a transaction
involving a Change of Control following the process described in
Section 4.1 of the Amended and Restated Stockholders' Agreement.
Any termination of this Agreement as provided herein shall be
without prejudice to the rights of any Party arising out of the
breach by any other Party of any provision of this Agreement.
Section 5.2. 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:
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FT: ▇ ▇▇▇▇▇ ▇'▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇ Cedex 15
France
Attention: Group Executive Vice President
Resources
Tel: (▇▇-▇) ▇▇-▇▇-▇▇-▇▇
Fax: (▇▇-▇) ▇▇-▇▇-▇▇-▇▇
with a copy to:
▇ ▇▇▇▇▇ ▇'▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇ Cedex 15
France
Attention: General Counsel
Tel: (▇▇-▇) ▇▇-▇▇-▇▇-▇▇
Fax: (▇▇-▇) ▇▇-▇▇-▇▇-▇▇
and with a copy to:
Shearman & Sterling
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇.▇.▇.
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇, ▇▇., Esq.
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
DT: ▇▇▇▇▇▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇ ▇▇▇
▇-▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇
Attention: Chief Executive Officer
Tel: ▇▇-▇▇▇-▇▇▇-▇▇▇▇
Fax: ▇▇-▇▇▇-▇▇▇-▇▇▇▇
with a copy to:
Cleary, Gottlieb, ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇.▇.▇.
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Sprint: ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇
-18-
U.S.A.
Attention: General Counsel
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
King & Spalding
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇.▇.▇.
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Esq.
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
The Parties shall promptly notify each other in the manner
provided in this Section 5.2 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.
Section 5.3. 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 5.4. Entire Agreement. This Agreement, including
the Exhibits attached hereto, embodies the entire agreement and
understanding of the Parties in respect of the subject matter
contained herein, provided that this provision shall not abrogate
any other written agreement between the Parties executed
simultaneously with this Agreement. This Agreement supersedes all
prior agreements and understandings between the Parties with
respect to such subject matter.
Section 5.5. 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 5.6. 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.
-19-
Section 5.7. 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 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 CLAIMS FOR INTERIM RELIEF, COUNTERCLAIMS, 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 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 5.2. 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 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
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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 PARTIES 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 BREACH HAS OCCURRED,
AND AGREES TO WAIVE ANY REQUIREMENT FOR THE SECURING OR POSTING
OF ANY BOND IN CONNECTION WITH SUCH REMEDY.
Section 5.8. 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 Applicable 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 5.9. Translation. The parties hereto 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
loi n(degree) 94-665 du 4 aout 1994 relative a l'emploi de la
langue francaise, the parties hereto have prepared a French
version of this Agreement, which French version was executed and
delivered simultaneously with the execution and delivery of the
English version hereof. The parties deem the French and English
versions of this Agreement to be equally authoritative.
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Section 5.10. Counterparts. 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 5.11. 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 setoff or counterclaim relating to this
Agreement from the jurisdiction of any competent court, 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. ss. 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 5.12. Remedies. In addition to any other remedies
which may be available to Sprint (including any remedies which
Sprint may have at law or in equity):
(a) Each of FT and DT agrees that Sprint shall have no
obligation to honor transfers of Sprint Voting Securities or
other equity interests in Sprint to FT, DT or any of their
respective Affiliates or Associates which would cause any of FT,
DT and their respective Affiliates or Associates to Beneficially
Own Sprint Voting Securities or other equity interests in Sprint
in violation of this Agreement, any such transfers shall be void
and of no effect, and Sprint shall be entitled to instruct any
transfer agent or agents for the equity interests in Sprint to
refuse to honor such transfers; and
(b) FT and DT acknowledge the provisions set forth in
ARTICLE SIXTH, Section 2.5 of the Articles, ARTICLE SIXTH,
Section 8.5(b) of the Articles, and Section 3.5 and Article VIII
of the Amended and Restated Stockholders' Agreement relating to
the consequences of a breach of certain provisions of this
Agreement or any Qualified Subsidiary Standstill Agreement or to
the consequences of certain actions taken by a Government
Affiliate, Qualified Stock Purchaser, Strategic Investor or
Related Company.
-22-
IN WITNESS WHEREOF, Sprint, FT and DT have caused their
respective duly authorized officers to execute this Agreement as
of the day and year first above written.
SPRINT CORPORATION
By:____________________________
Name:
Title:
FRANCE TELECOM S.A.
By:____________________________
Name:
Title:
DEUTSCHE TELEKOM AG
By:____________________________
Name:
Title
-23-
EXHIBIT A
STANDSTILL AGREEMENT
THIS STANDSTILL AGREEMENT (this "Agreement") dated as of
_______ __, 1998 by and among SPRINT CORPORATION, a corporation
formed under the laws of Kansas ("Sprint") and [QUALIFIED
SUBSIDIARY], a [company] [partnership] formed under the laws of
______________ ("Transferee").
R E C I T A L S
WHEREAS, Sprint, France Telecom S.A. and Deutsche Telekom
AG entered into an Investment Agreement dated as of July 31,
1995, as amended (the "Investment Agreement"), pursuant to which
FT and DT purchased shares of capital stock of Sprint;
WHEREAS, as a condition to Sprint's entering into the
Investment Agreement, Sprint, FT and DT entered into a Standstill
Agreement dated as of July 31, 1995, which agreement was amended
on June 24, 1997 (as so amended, the "Original Standstill
Agreement");
WHEREAS, Sprint, FT and DT entered into a Master
Restructuring and Investment Agreement dated as of May 26, 1998,
(the "FT/DT Restructuring Agreement"), which contemplates, among
other things, the purchase by FT and DT of shares of PCS Common
Stock -- Series 3, par value $ per share, of Sprint;
WHEREAS, as a condition to its entering into the FT/DT
Restructuring Agreement, Sprint required FT and DT to enter into
that certain Amended and Restated Standstill Agreement dated as
of _____________, 1998 (the "Standstill Agreement"), which
contains certain restrictions on purchases of Sprint capital
stock by FT and DT and their respective Affiliates and Associates
and certain other limitations on FT and DT and their respective
Affiliates and Associates;
WHEREAS, Section 4.1 of the Standstill Agreement provides
that FT and DT shall cause each Qualified Subsidiary which
acquires any shares of Sprint Voting Securities to execute a
Qualified Subsidiary Standstill Agreement prior to and as a
condition to the effectiveness of such acquisition;
WHEREAS, Transferee is a Qualified Subsidiary to which [FT
and DT] has indicated that it intends to transfer Sprint Voting
Securities; and
WHEREAS, this Agreement is the Qualified Subsidiary
Standstill Agreement which Transferee is executing in compliance
with Section 4.1 of the Standstill Agreement.
NOW, THEREFORE, in consideration of these premises and the
covenants and agreements contained herein, and for other good and
valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, Transferee and Sprint (each a "Party"
and collectively the "Parties"), intending to be legally bound,
hereby agree as follows:
ARTICLE 1.
DEFINITIONS AND CONSTRUCTION
Section 1.1. Certain Definitions. As used in this
Agreement, the following terms shall have the meanings specified
below:
"Acquisition Proposal" shall mean any proposal involving a
transaction of the kind described in Section 8.6 of ARTICLE SIXTH
of Sprint's Articles.
"Affiliate" shall mean, with respect to any Person, any
other Person that directly, or indirectly through one or more
intermediaries, Controls or is Controlled by, or is under common
Control with, such Person, provided that (a) no JV Entity shall
be deemed an Affiliate of any Party unless (i) FT, DT and Atlas
own a majority of the Voting Power of such JV Entity and Sprint
does not have the Tie-Breaking Vote (as defined in Section 18.1
of the Joint Venture Agreement), (ii) FT, DT or Atlas has the
Tie-Breaking Vote or (iii) FT, DT or any of their Affiliates
cause such JV Entity to acquire Beneficial Ownership of any
Sprint equity securities; (b) FT, DT and Sprint shall not be
deemed Affiliates of each other; (c) Atlas shall be deemed an
Affiliate of FT and DT; and (d) the term "Affiliate" shall not
include any Government Affiliate.
"Aggregate Foreign Ownership Limitation" shall mean the
maximum aggregate percentage of equity interests of Sprint that
may be Owned of Record or Voted by Aliens under Section 310(b)(4)
of the Communications Act, without such ownership or voting
resulting in the possible loss, or possible failure to secure the
renewal or reinstatement, of any license or franchise of any
Governmental Authority held by Sprint or any of its Affiliates to
conduct any portion of the business of Sprint or such Affiliate,
as such maximum aggregate percentage may be increased from time
to time by amendments to such section or by waivers granted to
Sprint by the FCC or by other determinations of the FCC, provided
that if Section 310(b)(4) is repealed or otherwise made
inapplicable to the ownership of Sprint capital stock by FT and
DT, there shall be no Aggregate Foreign Ownership Limitation.
"Amended and Restated Stockholders' Agreement" shall have
the meaning set forth in Article VIII of the FT/DT Restructuring
Agreement.
"Amended Other Agreements" shall mean the FT/DT
Restructuring Agreement, the Amended and Restated Stockholders'
Agreement, the Amended and Restated Registration Rights Agreement
(as defined in the Amended and Restated Stockholders' Agreement),
and the Amended and Restated Confidentiality Agreements (as
defined in the Amended and Restated Stockholders' Agreement).
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"Beneficial Owner" (including, with its correlative
meanings, "Beneficially Own" and "Beneficial Ownership"), with
respect to any securities, shall mean any Person which:
(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 FT/DT Restructuring 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 or
Associate thereof),
provided that (i) Class A Common Stock, Sprint FON Stock and
Sprint 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)
Sprint FON Stock and Sprint 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 Sprint
FON Stock or Sprint 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.
"Cable Partners" means Tele-Communications, Inc., Comcast
Corporation, and ▇▇▇ Communications, Inc., and any of their
respective successors (by merger, consolidation, transfer or
otherwise) to all or substantially all of their respective
businesses or assets.
"Class A Common Stock" shall mean the Class A Common Stock,
par value U.S. $2.50 per share, of Sprint.
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"Class A Stock" shall mean the Class A Common Stock, the
Series 3 FON Stock and the Series 3 PCS Stock.
"Communications Act" shall mean the United States
Communications Act of 1934 and the rules and regulations
thereunder.
"Control" (including, with its correlative meanings,
"Controlled by" and "under common Control with") shall mean, with
respect to a Person or Group:
(a) ownership by such Person or Group of Votes
entitling it to exercise in the aggregate more than 50 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.
"Controlled Affiliates," with respect to the Transferee,
shall mean any Affiliates of the Transferee which are, directly
or indirectly, controlled by the Transferee.
"CP Closing" shall have the meaning set forth in Article
VIII of the FT/DT Restructuring Agreement.
"DT" shall have the meaning set forth in the introductory
paragraph of this Agreement.
"FT" shall have the meaning set forth in the introductory
paragraph of this Agreement.
"FT/DT Restructuring Agreement" means the Master
Restructuring and Investment Agreement dated as of May 26, 1998
by and among Sprint, FT and DT.
"Government Affiliate" shall mean any Governmental
Authority of France or Germany or any other Person Controlled,
directly or indirectly (other than by virtue of a government's
inherent regulatory or statutory powers to control persons or
entities within its jurisdiction), by any such Governmental
Authority, provided that FT, DT, Atlas and any other Person
directly, or indirectly through one or more intermediaries,
Controlled by FT, DT or Atlas shall not be Government Affiliates.
"Group" shall mean any group within the meaning of Section
13(d)(3) of the Exchange Act as in effect on the date hereof.
"Initial Percentage Limitations" shall have the meaning set
forth in Section 2.1(a)(i), as adjusted pursuant to Section
2.2(a).
-4-
"Initial Standstill Period" shall have the meaning set
forth in Section 2.1(a)(i).
"Largest Other Holder" shall mean the Other Holder, if any,
who Beneficially Owns a larger percentage of the Outstanding
Sprint Voting Securities than any other Person, provided that,
for purposes of this definition, FT, DT, their Affiliates and
Associates and Qualified Stock Purchasers shall be considered a
single Person.
"Number of Shares Issuable With Respect to the Class A
Equity Interest in the FON Group" shall have the meaning set
forth in ARTICLE SIXTH, Section 10 of the Articles of
Incorporation of Sprint, as amended from time to time.
"Number of Shares Issuable With Respect to the Class A
Equity Interest in the PCS Group" shall have the meaning set
forth in ARTICLE SIXTH, Section 10 of the Articles of
Incorporation of Sprint, as amended from time to time.
"Other Holder" shall mean any Person other than (i) FT, DT,
any of their respective Affiliates or Associates or any Qualified
Stock Purchaser, (ii) Sprint, (iii) any Subsidiary of Sprint,
(iv) any employee benefit plan of Sprint or of any Subsidiary of
Sprint, or (v) any Person organized, appointed or established by
Sprint or any Subsidiary of Sprint for or pursuant to the terms
of any such plan.
"Outstanding Sprint FON Stock" shall mean the shares of
Sprint FON Stock outstanding as of any particular date, plus (i)
all shares of Sprint FON Stock which as of such date any of FT or
DT or any of their respective Affiliates is committed to acquire
from Sprint or has the right to acquire (or to commit to acquire)
from Sprint pursuant to the FT/DT Restructuring Agreement and the
Amended and Restated Stockholders' Agreement, and (ii) the
aggregate Number of Shares Issuable With Respect to the Class A
Equity Interest in the FON Group.
"Outstanding Sprint PCS Stock" shall mean the shares of
Sprint PCS Stock outstanding as of any particular date, plus (i)
all shares of Sprint PCS Stock which as of such date any of FT or
DT or any of their respective Affiliates is committed to acquire
from Sprint or has the right to acquire (or to commit to acquire)
from Sprint pursuant to the Amended and Restated Stockholders'
Agreement, plus (ii) the aggregate Number of Shares Issuable With
Respect to the Class A Equity Interest in the PCS Group as of
such date.
"Outstanding Sprint Voting Securities" shall mean (i) the
Sprint Voting Securities outstanding as of any particular date,
plus (ii) all Sprint Voting Securities which as of such date any
of FT or DT or any of their respective Affiliates is committed to
acquire from Sprint or has the right to acquire (or to commit to
acquire) from Sprint pursuant to the Amended and Restated
Stockholders' Agreement.
"Owned of Record or Voted by" shall have the meaning
specified in Section 310(b)(4) of the Communications Act and
published interpretations thereof by the FCC and the U.S. federal
courts.
-5-
"Percentage Limitations" shall have the meaning set forth
in Sections 2.1(a)(i) and 2.1(a)(ii), each as adjusted pursuant
to Section 2.2(a).
"Percentage Limitation Adjustment Event" shall mean the
acquisition by an Other Holder of Beneficial Ownership of
Outstanding Sprint Voting Securities in excess of the applicable
Percentage Limitations as reflected in clause (A) of Section
2.1(a)(i) or clause (A) of Section 2.1(a)(ii), as the case may
be, unless any of FT, DT or any Qualified Subsidiary shall have
breached any of the provisions of Section 3.1 or 3.2 of this
Agreement or any corresponding provision of any Qualified
Subsidiary Standstill Agreement and such breach resulted in, or
was intended to facilitate, such Other Holder's acquisition of
Beneficial Ownership of Outstanding Sprint Voting Securities in
excess of such applicable Percentage Limitations.
"Percentage Ownership Interest" shall mean, with respect to
any Person, that percentage of the Voting Power of Sprint
represented by Votes associated with the Sprint Voting Securities
owned of record by such Person or by its nominees.
"Purchase Rights Agreement" shall mean the Top Up Rights
Agreement dated as of May 26, 1998 among FT, DT, Sprint and the
Cable Partners as in effect on such date.
"Qualified Stock Purchaser Standstill Agreement" shall mean
a Standstill Agreement in form and substance satisfactory to
Sprint, FT and DT.
"Qualified Subsidiary Standstill Agreement" shall mean a
Standstill Agreement in the form of Exhibit A to the Standstill
Agreement.
"Recapitalization" shall have the meaning set forth in
Article VIII of the FT/DT Restructuring Agreement.
"Record Date Period" shall mean a period of ten Trading
Days beginning on the ninth Trading Day (as defined in the
Amended and Restated Stockholders' Agreement) before a record
date for a meeting of Sprint's stockholders or for the payment of
dividends and ending on (and including) such record date (which
shall be a Trading Day).
"Related Company" shall mean any Person not Controlled by
FT or DT, but in which FT, DT and their respective Affiliates and
Associates, individually or in the aggregate, directly or
indirectly through one or more intermediaries, own securities
entitling them to exercise in the aggregate more than 35 percent
of the Voting Power of such Person.
"Series 1 FON Stock" shall mean the FON Common Stock --
Series 1, par value U.S. $___ per share, of Sprint to be created
in connection with the Recapitalization.
"Series 1 PCS Stock" shall mean the PCS Common Stock --
Series 1, par value U.S. $___ per share, of Sprint to be created
by the Initial Charter Amendment.
-6-
"Series 2 FON Stock" shall mean the FON Common Stock --
Series 2, par value U.S. $___ per share, of Sprint to be created
by the Subsequent Charter Amendment.
"Series 2 PCS Stock" shall mean the PCS Common Stock --
Series 2, par value U.S. $___ per share, of Sprint to be created
by the Initial Charter Amendment.
"Series 3 FON Stock" shall mean the FON Common Stock --
Series 3, par value U.S. $___ per share, of Sprint to be created
by the Subsequent Charter Amendment.
"Series 3 PCS Stock" shall mean the PCS Common Stock --
Series 3, par value U.S. $___ per share, of Sprint to be created
by the Initial Charter Amendment.
"Sprint" shall have the meaning set forth in the
introductory paragraph of this Agreement.
"Sprint FON Common Stock" shall mean (i) prior to the
Recapitalization, the Common Stock, par value U.S. $2.50 per
share, of Sprint, and (ii) following the Recapitalization, the
Series 1 FON Stock and the Series ▇ ▇▇▇ ▇▇▇▇▇.
"▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇" shall mean the Sprint FON Common Stock
and the Series 3 FON Stock.
"Sprint PCS Common Stock" shall mean the Series 1 PCS Stock
and the Series 2 PCS Stock.
"Sprint PCS Preferred Stock" shall mean the Preferred Stock
-- Series 7, no par value, of Sprint, which is to be created
prior to the CP Closing.
"Sprint PCS Stock" shall mean the Sprint PCS Common Stock,
the Sprint PCS Preferred Stock and the Series 3 PCS Stock.
"Sprint Rights Plan" shall mean the Rights Agreement dated
as of June 9, 1997, as amended, between Sprint and UMB Bank,
n.a., as rights agent.
"Sprint Voting Securities" shall mean the Sprint FON Common
Stock, the Sprint PCS Common Stock, the Sprint PCS Preferred
Stock, the Class A Stock and any other securities of Sprint
having the right to Vote.
"Strategic Investor" shall mean any Person which owns
directly any equity interests in a Qualified Subsidiary, other
than FT, DT, any wholly owned Subsidiary of FT or DT or a Passive
Financial Institution.
"Strategic Investor Standstill Agreement" shall mean a
Standstill Agreement in the form of Exhibit B to the Standstill
Agreement.
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"Subsequent Percentage Limitations" shall have the meaning
set forth in Section 2.1(a)(ii), as adjusted pursuant to Section
2.2(a).
"Vote" shall mean, as to any entity, the ability to cast a
vote at a stockholders' or comparable meeting of such entity with
respect to the election of directors or other members of such
entity's governing body, provided that:
(i) with respect to Sprint only, the term "Vote" shall mean
the ability to exercise general voting power (as opposed to the
exercise of special voting or disapproval rights such as those
set forth in the Class A Provisions) with respect to matters
other than the election of directors at a meeting of the
stockholders of Sprint;
(ii) with respect to Sprint only, the term "Vote" shall
include the aggregate number of Votes represented by all Sprint
Voting Securities which as of such date any of FT or DT or any of
their respective Affiliates Beneficially Owns or is committed to
acquire from Sprint or has the right to acquire (or to commit to
acquire) from Sprint pursuant to the Amended and Restated
Stockholders' Agreement;
(iii) except as set forth in clause (iv) of this
definition, with respect to Sprint only, in determining the
number of Votes outstanding at any date and/or represented by any
Sprint Voting Securities at any date, a record date for
determining the stockholders entitled to vote shall be deemed to
have been set by the Board of Directors of Sprint on each such
date and accordingly the number of Votes represented by the
Sprint PCS Stock on any given date shall be deemed to have been
adjusted in the manner provided in Section 3.2 of Article SIXTH
of the Articles as if such date were a record date for
determining the stockholders entitled to vote; and
(iv) notwithstanding clause (iii) of this definition,
during a Record Date Period, the number of Votes outstanding at
any date from and including the first day of such period and to
and including the last day of such period and/or represented by
any Sprint Voting Securities at any date during such period shall
be determined in the manner provided in Section 3.2 of Article
SIXTH with respect to the record date occurring on the last day
of such Record Date Period including, in the case of a record
date for the payment of dividends, as if such date were a record
date for determining the stockholders entitled to vote.
"Voting Power" shall mean, as to any entity as at any date,
the aggregate number of Votes outstanding as at such date in
respect of such entity, provided that, in the case of Sprint, the
term "Voting Power" shall mean the aggregate number of Votes
represented by all Outstanding Sprint Voting Securities.
In addition to the foregoing, each of the following terms
shall have the respective meanings given to such term in Article
I of the Amended and Restated Stockholders' Agreement: Alien,
Applicable Law, Articles, Associate, Atlas, Change of Control,
Class A Provisions, Exchange Act, FCC, France, Germany,
Governmental Authority, Initial Charter Amendment, Joint Venture
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Agreement, Joint Venture Documents, JV Entity, Passive Financial
Institution, Person, Qualified Stock Purchaser, Qualified
Subsidiary, SEC and Subsidiary.
Section 1.2. Interpretation and Construction of this
Agreement. The definitions in Section 1.1 shall apply equally to
both the singular and plural forms of the terms defined. Whenever
the context may require, any pronoun shall include the
corresponding masculine, feminine and neuter forms. The words
"include," "includes" and "including" shall be deemed to be
followed by the phrase "without limitation." All references
herein to Articles, Sections and Exhibits shall be deemed to be
references to Articles and Sections of, and Exhibits to, this
Agreement unless the context shall otherwise require. The
headings of the Articles and Sections are inserted for
convenience of reference only and are not intended to be a part
of or to affect the meaning or interpretation of this Agreement.
Unless the context shall otherwise require or provide, any
reference to any agreement or other instrument or statute or
regulation is to such agreement, instrument, statute or
regulation as amended and supplemented from time to time (and, in
the case of a statute or regulation, to any successor provision).
ARTICLE 2.
RESTRICTIONS ON ACQUISITION OF VOTING SECURITIES BY
TRANSFEREE AND ITS AFFILIATES AND ASSOCIATES
Section 2.1. Acquisition Restrictions.
(a) Subject to Sections 2.2, 2.3 and 2.4, Transferee
agrees that it will not, and will cause each of its respective
Affiliates and Associates not to, directly or indirectly,
acquire, offer to acquire, or agree to acquire, by purchase or
otherwise, Beneficial Ownership of:
(i) any Sprint Voting Securities on or prior to July 31,
2010 (the "Initial Standstill Period"), if any of the
following would occur: (A) the Votes represented by
the Sprint Voting Securities Beneficially Owned in the
aggregate by FT, DT and their respective Affiliates
and Associates would represent in the aggregate more
than 20% of the Voting Power represented by the
Outstanding Sprint Voting Securities, (B) the Votes
represented by the shares of Class A Common Stock (to
the extent representing a Number of Shares Issuable
With Respect to the Class A Equity Interest in the FON
Group) and Sprint FON Stock Beneficially Owned in the
aggregate by FT, DT and their respective Affiliates
and Associates would represent in the aggregate more
than 33% of the Voting Power represented by the
Outstanding Sprint FON Stock, or (C) the Votes
represented by the shares of Class A Common Stock (to
the extent representing a Number of Shares Issuable
With Respect to the Class A Equity Interest in the PCS
Group) and Sprint PCS Stock Beneficially Owned in the
aggregate by FT, DT and their respective Affiliates
and Associates would represent in the aggregate more
than 33% of the Voting Power represented by the
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Outstanding Sprint PCS Stock (clauses (A), (B) and (C)
being collectively referred to as the "Initial
Percentage Limitations"); or
(ii) any Sprint Voting Securities after the Initial
Standstill Period, if any of the following would
occur: (A) the Votes represented by the Sprint Voting
Securities Beneficially Owned in the aggregate by FT,
DT and their respective Affiliates and Associates
would represent in the aggregate more than 30% of the
Voting Power represented by the Outstanding Sprint
Voting Securities, (B) the Votes represented by the
shares of Class A Common Stock (to the extent
representing a Number of Shares Issuable With Respect
to the Class A Equity Interest in the FON Group) and
Sprint FON Stock Beneficially Owned in the aggregate
by FT, DT and their respective Affiliates and
Associates would represent in the aggregate more than
33% of the Voting Power represented by the Outstanding
Sprint FON Stock, (C) the Votes represented by the
shares of Class A Common Stock (to the extent
representing a Number of Shares Issuable With Respect
to the Class A Equity Interest in the PCS Group) and
Sprint PCS Stock Beneficially Owned in the aggregate
by FT, DT and their respective Affiliates and
Associates would represent in the aggregate more than
33% of the Voting Power represented by the Outstanding
Sprint PCS Stock (clauses (A), (B) and (C) being
collectively referred to as the "Subsequent Percentage
Limitations"; the Initial Percentage Limitations and
the Subsequent Percentage Limitations, as the case may
be, also being referred to as the "Percentage
Limitations"), or (D) the Sprint Voting Securities
Beneficially Owned in the aggregate by FT and DT and
their respective Affiliates and Associates would
exceed 80% of the Aggregate Foreign Ownership
Limitation; or
(iii) any Sprint nonvoting equity securities, but not
including any "Derivative Security" (as defined in the
Purchase Rights Agreement) purchased by FT or DT from
the Cable Partners under the Purchase Rights Agreement
so long as the acquisition of the shares acquired as a
result of such derivative instruments is not otherwise
in violation of this Agreement.
(b) In addition to any other restrictions contained
herein or in the Joint Venture Documents, the Parties agree that
none of the Parties will cause any JV Entity to, directly or
indirectly, acquire, offer to acquire, or agree to acquire, by
purchase or otherwise, Beneficial Ownership of any equity
securities of Sprint.
Section 2.2. Exception to Purchase Restrictions.
(a) Subject to Section 2.4, if a Percentage Limitation
Adjustment Event shall occur, then the applicable Percentage
Limitations shall be increased to the extent necessary so that
Sections 2.1(a)(i) and 2.1(a)(ii) do not prohibit Transferee from
acquiring Beneficial Ownership of additional Sprint Voting
Securities so long as each of the following conditions is
satisfied: (i) the Votes represented by the Sprint Voting
Securities Beneficially Owned in the aggregate by FT, DT and
their
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respective Affiliates and Associates and any Qualified Stock
Purchasers are no greater than the Votes represented by the
Sprint Voting Securities Beneficially Owned by the Largest Other
Holder, after giving effect to any dilution to such holder
resulting from the operation of the Sprint Rights Plan, (ii) the
Votes represented by the shares of Class A Common Stock (to the
extent representing a Number of Shares Issuable With Respect to
the Class A Equity Interest in the FON Group) and Sprint FON
Stock Beneficially Owned in the aggregate by FT, DT and their
respective Affiliates and Associates do not represent in the
aggregate more than 33% of the Voting Power represented by the
Outstanding Sprint FON Stock, (iii) the Votes represented by the
shares of Class A Common Stock (to the extent representing a
Number of Shares Issuable With Respect to the Class A Equity
Interest in the PCS Group) and Sprint PCS Stock Beneficially
Owned in the aggregate by FT, DT and their respective Affiliates
and Associates do not represent in the aggregate more than 33% of
the Voting Power represented by the Outstanding Sprint PCS Stock,
and (iv) the Sprint Voting Securities Beneficially Owned in the
aggregate by FT and DT and their respective Affiliates do not at
any time exceed 80% of the Aggregate Foreign Ownership
Limitation.
(b) Subject to Section 2.4, if an acquisition by
Transferee of Beneficial Ownership of additional Sprint Voting
Securities otherwise permitted by Section 2.1(a)(ii) or 2.2(a) is
prohibited thereunder due to clause (D) of Section 2.1(a)(ii) or
due to clause (iv) of Section 2.2(a), then Transferee may assign
to one or more non-Alien Qualified Stock Purchasers in accordance
with Section 7.2 of the Amended and Restated Stockholders'
Agreement its rights under Section 2.1(a)(ii) or 2.2(a) to
purchase in the aggregate the number of shares of Sprint Voting
Securities which equals the number of shares of Sprint Voting
Securities the purchase of which is prohibited by clause (D) of
Section 2.1(a)(ii) or clause (iv) of Section 2.2(a), as the case
may be.
Section 2.3. Effect of Action by Sprint; Inadvertent
Action.
(a) Subject to Section 2.3(b), Transferee shall not be
deemed in violation of this Article 2 if the Beneficial Ownership
of Sprint Voting Securities by FT, DT and their respective
Affiliates and Associates exceeds the applicable Percentage
Limitations (i) solely as a result of an acquisition of Sprint
Voting Securities by Sprint (including as a result of a
redemption by Sprint of its Sprint PCS Preferred Stock) that, by
reducing the number of Outstanding Sprint Voting Securities,
increases the proportionate number of Sprint Voting Securities
Beneficially Owned by FT, DT and their respective Affiliates and
Associates, (ii) if FT, DT and their Affiliates and Associates
are in compliance with clauses (B) and (C) of Section 2.1(a)(i),
the Beneficial Ownership of Sprint Voting Securities by FT, DT
and their respective Affiliates and Associates does not exceed
the Percentage Limitation set forth in clause (A) of Section
2.1(a)(i) (or, after the Initial Standstill Period, clause (A) of
Section 2.1(a)(ii)) by more than 0.5% and the acquisitions of
Beneficial Ownership which resulted in FT, DT and their
respective Affiliates and Associates exceeding such Percentage
Limitation were undertaken in good faith and such applicable
Percentage Limitation was exceeded inadvertently, (iii) solely as
a result of any readjustment in the relative Voting Power of the
Sprint FON Stock and the Sprint PCS Stock in accordance with the
terms of the Articles, (iv) solely as a result of a redemption or
conversion of any Sprint PCS Stock pursuant to ARTICLE SIXTH,
Section 7 of the Articles, or (v) because FT, DT or their
respective Affiliates or Associates
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acquire Beneficial Ownership of Sprint Voting Securities in
excess of the applicable Percentage Limitations in reliance on
information regarding the number of outstanding shares of Sprint
provided directly to any of FT, DT and their respective
Affiliates and Associates by Sprint in response to a request for
such information by any of FT, DT and their respective Affiliates
and Associates immediately prior to such purchase.
(b) Notwithstanding Section 2.3(a), the applicable
Percentage Limitations shall be deemed exceeded if (i) in the
case of Section 2.3(a)(i), FT, DT or any of their respective
Affiliates or Associates acquires Beneficial Ownership of any
additional Sprint Voting Securities after it has been notified of
an acquisition of Sprint Voting Securities by Sprint (including
as a result of a redemption by Sprint of its Sprint PCS Preferred
Stock), (ii) in the case of Section 2.3(a)(ii), FT, DT or any of
their respective Affiliates or Associates acquires Beneficial
Ownership of any additional Sprint Voting Securities after it has
been notified or has knowledge that one or more of the applicable
Percentage Limitations has been exceeded, (iii) in the case of
Section 2.3(a)(iii), after a readjustment in the relative Voting
Power of the Sprint FON Stock and the Sprint PCS Stock which
results in FT, DT and their respective Affiliates and Associates
having Beneficial Ownership of Sprint Voting Securities in excess
of any of the applicable Percentage Limitations, FT, DT or any of
their respective Affiliates or Associates acquires Beneficial
Ownership of any additional Sprint Voting Securities, after being
notified of, or having knowledge of such readjustment in the
relative Voting Power, (iv) in the case of Section 2.3(a)(iv),
after the redemption or conversion of any Sprint PCS Stock
pursuant to ARTICLE SIXTH, Section 7 of the Articles which
results in FT, DT and their respective Affiliates and Associates
having Beneficial Ownership of Sprint Voting Securities in excess
of any of the applicable Percentage Limitations, FT, DT or any of
their respective Affiliates or Associates acquires Beneficial
Ownership of any additional Sprint Voting Securities after being
notified of, or having knowledge of, such redemption or
conversion, and (v) in the case of Section 2.3(a)(v), FT, DT or
any of their respective Affiliates or Associates acquires
Beneficial Ownership of additional Sprint Voting Securities after
it has been notified that the information regarding the number of
outstanding shares previously provided to it was incorrect and it
has been provided by Sprint with correct information, unless in
the case of clauses (i), (ii), (iii), (iv) and (v):
(x) upon the acquisition of Beneficial Ownership of
such additional Sprint Voting Securities, FT, DT and their
respective Affiliates and Associates do not Beneficially
Own in the aggregate more than any of the applicable
Percentage Limitations, or
(y) subject to the rights of Sprint in Section 5.7 of
the Amended and Restated Stockholders' Agreement, such
acquisition is effected pursuant to (A) the exercise of
equity purchase rights by Transferee, FT or DT pursuant to
the Amended and Restated Stockholders' Agreement, or (B)
market purchases which are made solely in lieu of the
exercise of equity purchase rights by Transferee, FT or DT
pursuant to the Amended and Restated Stockholders'
Agreement following the issuance of securities by Sprint,
so long as (1) either (I) Transferee, FT or DT, as the case
may be, has irrevocably waived its rights to exercise the
equity purchase rights in respect of which such market
purchases are made in lieu thereof, or (II) the time period
for the exercise of such equity purchase rights has expired
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without the exercise of such rights, and (2) following such
market purchases, the Percentage Ownership Interest of FT,
DT and their respective Affiliates and Associates does not
exceed the Percentage Ownership Interest of FT, DT and
their respective Affiliates and Associates which would have
been in effect had FT, DT and their respective Affiliates
exercised such equity purchase rights.
Section 2.4. Sprint Rights Plan.
(a) Notwithstanding the provisions of Sections 2.1 and
2.2, Transferee agrees that it will not, and will cause each of
its Controlled Affiliates not to, directly or indirectly,
acquire, offer to acquire, or agree to acquire, by purchase or
otherwise, Beneficial Ownership of any Sprint Voting Securities
if such acquisition would result in Transferee, any of the
Controlled Affiliates of Transferee or FT or DT or any of their
respective Affiliates being deemed an Acquiring Person (as such
term is defined in the Sprint Rights Plan) 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 Sprint Rights Plan).
(b) If the Sprint Board of Directors amends or waives
the provisions of the Sprint Rights Plan in such a manner to
permit an Other Holder to acquire Beneficial Ownership of Sprint
Voting Securities having Votes in excess of the applicable
Percentage Limitations without such acquisition resulting in the
Other Holder being deemed an Acquiring Person or resulting in the
occurrence of a Stock Acquisition Date, Distribution Date,
Section 11(a)(ii) Event or Section 13 Event or makes any other
changes to the Sprint Rights Plan which would permit any Other
Holder to own Sprint Voting Securities having Votes in excess of
the applicable Percentage Limitations without triggering adverse
consequences under the Sprint Rights Plan to such Other Holder,
then Sprint will amend or waive the provisions of the Sprint
Rights Plan so that the Sprint Rights Plan does not impose any
prohibition (including any prohibition on the ownership of Voting
Securities), on FT, DT and their respective Affiliates and
Associates which is more restrictive than the restrictions
imposed on any Other Holder.
ARTICLE 3.
OTHER STANDSTILL PROVISIONS; QUORUM
Section 3.1. Standstill Covenants. Transferee agrees that
it will not, and it will cause each of its Controlled Affiliates
not to, directly or indirectly, alone or in concert with others
(including with any Government Affiliate, Related Company or
Qualified Stock Purchaser), unless specifically requested in
writing by the Chairman of Sprint or by a resolution of a
majority of the directors of Sprint, take any of the actions set
forth below, except to the extent expressly permitted or provided
for by the Amended Other Agreements and the Joint Venture
Documents:
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(a) effect, seek, offer, propose (whether publicly or
otherwise) or cause or participate in, or assist any other Person
to effect, seek, offer or propose (whether publicly or otherwise)
or participate in:
(i) any acquisition of Beneficial Ownership of Sprint
Voting Securities or other equity interests in Sprint
which would result in a breach of Article 2 of this
Agreement;
(ii) any tender or exchange offer, merger, consolidation,
share exchange or business combination involving
Sprint or any material portion of its business or any
purchase of all or any substantial part of the assets
of Sprint or any material portion of its business,
provided that nothing in this clause (ii) shall
prohibit discussions by the Parties in connection with
the conduct of the business of the JV Entities in the
manner contemplated by the Joint Venture Documents or
in connection with offers by FT or DT to purchase
equity interests owned by Sprint in the JV Entities;
(iii) any recapitalization, restructuring, liquidation,
dissolution or other extraordinary transaction with
respect to Sprint or any material portion of its
business, provided that nothing in this clause (iii)
shall prohibit discussions by the Parties in
connection with the conduct of the business of the JV
Entities or in connection with offers by FT or DT to
purchase equity interests owned by Sprint in the JV
Entities; or
(iv) any "solicitation" of "proxies" (as such terms are
used in the proxy rules of the SEC but without regard
to the exclusion set forth in Section 14a-1(l)(2)(iv)
from the definition of "solicitation") with respect to
Sprint or any of its Affiliates or any action
resulting in such Person becoming a "participant" in
any "election contest" (as such terms are used in the
proxy rules of the SEC) with respect to Sprint or any
of its Affiliates;
(b) propose any matter for submission to a vote of
stockholders of Sprint or any of its Affiliates; provided that
nothing in this Section 3.1(b) shall restrict the manner in which
the members of the Board of Directors of Sprint elected by the
holders of Class A Stock may (i) vote on any matter submitted to
such Board, or (ii) participate in deliberations or discussions
of such Board (including making suggestions and raising issues to
the Board, so long as such actions do not otherwise violate any
other provision of this Section 3.1 or Section 3.2) in their
capacity as members of such Board and in no other capacity,
including any capacity such persons serving as directors
otherwise may have as a director, officer, employee, agent or
representative of any other Person, including any holder of Class
A Stock;
(c) form, join or participate in a Group with respect
to any Sprint Voting Securities (other than any Group whose
members consist solely of FT, DT, Transferee, any of their
respective Affiliates and Associates and any Qualified
Subsidiaries);
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(d) grant any proxy with respect to any Sprint Voting
Securities to any Person not designated by Sprint, except for
proxies granted to FT or DT or Qualified Subsidiaries or to
individuals who are officers, employees or regular agents or
advisors of Transferee, FT or DT or Qualified Subsidiaries who
have received specific instructions from FT, DT or Qualified
Subsidiaries, as the case may be, as to the voting of such Sprint
Voting Securities with respect to the matter or matters for which
the proxy is granted;
(e) deposit any Sprint Voting Securities in a voting
trust or subject any Sprint Voting Securities to any arrangement
or agreement with respect to the voting of such Sprint Voting
Securities or other agreement having similar effect, except for
agreements solely among FT, DT, Transferee and any other
Qualified Subsidiary;
(f) execute any written stockholder consent with
respect to Sprint, except for written consents executed by such
Persons as holders of the Class A Stock in connection with (i)
the election of Class A Directors (as defined in the Articles),
(ii) the approval or disapproval of a Subject Event, Major
Issuance or Major Competitor Transaction (each as defined in the
Articles) during the period in which the holders of the Class A
Stock are entitled to exercise disapproval rights with respect to
such matter, (iii) any vote by the holders of Class A Common
Stock, Series 3 FON Stock, or Series 3 PCS Stock with respect to
which holders of each such class or series of stock is entitled
to vote separately as a class, or (iv) any vote by the holders of
the Class A Stock with respect to which such holders are entitled
to vote together as a single class;
(g) take any other action to seek to affect the
control of the management or Board of Directors of Sprint or any
of its Affiliates; provided that nothing in this Section 3.1(g)
shall restrict the manner in which the members of the Board of
Directors of Sprint elected by the holders of Class A Stock may
(i) vote on any matter submitted to such Board, or (ii)
participate in deliberations or discussions of such Board
(including making suggestions and raising issues to the Board, so
long as such actions do not otherwise violate any other provision
of this Section 3.1 or Section 3.2) in their capacity as members
of such Board and in no other capacity, including any capacity
such persons serving as directors otherwise may have as a
director, officer, employee, agent or representative of any other
Person, including any holder of Class A Stock;
(h) enter into any discussions, negotiations,
arrangements or understandings with any Person (including any
Government Affiliate, Related Company or Qualified Stock
Purchaser) other than FT, DT, their Affiliates, Associates and
their respective directors, officers, employees, agents or
advisors with respect to any of the foregoing, or advise, assist,
encourage or seek to persuade others to take any action with
respect to any of the foregoing;
(i) disclose to any Person (including any Government
Affiliate, Related Company or Qualified Stock Purchaser) other
than FT, DT, their Affiliates, Associates and their respective
directors, officers, employees, agents or advisors any intention,
plan or arrangement inconsistent with the foregoing or with the
restrictions on transfer set forth in Article II of the
Stockholders' Agreement or form any such intention which would
result in FT, DT or any of their respective
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Affiliates or Associates being required to make any such
disclosure in any filing with a Governmental Authority or being
required by Applicable Law to make a public announcement with
respect thereto; or
(j) request Sprint or any of its Affiliates,
directors, officers, employees, representatives, advisors or
agents, directly or indirectly, to amend or waive in any material
respect this Agreement (including this Section 3.1(j)) or the
articles of incorporation or the bylaws of Sprint or any of its
Affiliates.
Section 3.2. Press Releases, Etc. by Transferee.
(a) Subject to Section 3.2(b), Transferee may issue
such press releases and make such other public communications to
the financial community and to its stockholders and such other
public statements made in the ordinary course relating to its
investment in Sprint, in each case as it reasonably deems
appropriate and customary. Prior to making any such press release
or other communication, Transferee will use reasonable efforts to
consult with Sprint in good faith regarding the form and content
of any such communication, and Transferee will use reasonable
efforts to coordinate any such communication with any decisions
reached by Sprint with respect to disclosures relating to such
matters.
(b) Notwithstanding the provisions of Section 3.2(a),
unless required by Applicable Law, neither Transferee, nor any of
its Controlled Affiliates, may make any press release, public
announcement or other communication with respect to any of the
matters described in Sections 3.1(a), 3.1(b), 3.1(c), 3.1(g),
3.1(h) or 3.1(j) without the prior written consent of the
Chairman of Sprint or by a resolution of a majority of the
directors of Sprint. Nothing in this Section 3.2 shall permit
Transferee or its Controlled Affiliates to take any action which
would otherwise violate any provision contained in Section 3.1.
Section 3.3. Voting of Sprint Voting Securities. Except as
set forth in Sections 3.1(d), 3.1(e) and 3.1(f), nothing in
Section 3.1 shall restrict the manner in which Transferee may
vote its Sprint Voting Securities.
Section 3.4. Quorum. Transferee shall use reasonable
efforts to ensure that it and its Controlled Affiliates shall be
present, in person or by proxy, at all meetings of stockholders
of Sprint so that all Sprint Voting Securities Beneficially Owned
by Transferee and its Controlled Affiliates shall be counted for
purposes of determining the presence of a quorum at such meeting.
Section 3.5. Notice of Proposals Regarding Acquisition
Transactions. Transferee agrees that it will notify Sprint
promptly if any inquiries or proposals which Transferee
reasonably believes are of substance are received by, any
information is exchanged with respect to, or any negotiations or
substantive discussions are initiated or continued with,
Transferee or any of its Controlled Affiliates regarding any
Acquisition Proposal involving Sprint or any purchase of any of
the shares of capital
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stock of Sprint Beneficially Owned by Transferee or any of its
Controlled Affiliates pursuant to a tender offer or exchange
offer.
ARTICLE 4.
MISCELLANEOUS
Section 4.1. Termination. The provisions of this Agreement
shall terminate if Sprint proceeds with a transaction involving a
Change of Control following the process described in Section 4.1
of the Amended and Restated Stockholders' Agreement. Any
termination of this Agreement as provided herein shall be without
prejudice to the rights of any Party arising out of the breach by
any other Party of any provision of this Agreement.
Section 4.2. 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:
Transferee:
[specify notice address]
Sprint: 2330 Shawnee Mission Parkway
East Wing
Westwood, Kansas 66205
U.S.A.
Attention: General Counsel
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
King & Spalding
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇.▇.▇.
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Esq.
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
The Parties shall promptly notify each other in the manner
provided in this Section 4.2 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 4.3. 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 4.4. Entire Agreement. This Agreement, including
the Exhibits attached hereto, embodies the entire agreement and
understanding of the Parties in respect of the subject matter
contained herein, provided that this provision shall not abrogate
any other written agreement between the Parties executed
simultaneously with this Agreement. This Agreement supersedes all
prior agreements and understandings between the Parties with
respect to such subject matter.
Section 4.5. 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 4.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 4.6. 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 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 CLAIMS FOR INTERIM RELIEF, COUNTERCLAIMS, ACTIONS WITH
MULTIPLE DEFENDANTS AND ACTIONS IN WHICH SUCH PARTY IS IMPLED).
EACH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY
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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) TRANSFEREE 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 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 TRANSFEREE IN THE MANNER PROVIDED IN
SECTION 4.2. TRANSFEREE 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 TRANSFEREE 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 AGENT WITH THE SAME EFFECT AS IF NAMED
HEREIN IN PLACE OF CT CORPORATION SYSTEM. TRANSFEREE 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. TRANSFEREE 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 PARTIES 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 BREACH HAS OCCURRED,
AND AGREES TO WAIVE ANY
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REQUIREMENT FOR THE SECURING OR POSTING OF ANY BOND IN CONNECTION
WITH SUCH REMEDY.
Section 4.8. 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 Applicable 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 4.9. Translation. [Include the following if
Transferee is a Qualified Subsidiary of FT: The parties hereto
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
loi n(degree) 94-665 du 4 aout 1994 relative a l'emploi de la
langue francaise, the parties hereto have prepared a French
version of this Agreement, which French version was executed and
delivered simultaneously with the execution and delivery of the
English version hereof. The parties deem the French and English
versions of this Agreement to be equally authoritative.] [Include
the following if transferee is not a Qualified Subsidiary of FT:
This Agreement has been concluded in the English language and the
original English version will govern in the event of any
inconsistency between such version and any translation thereof.]
Section 4.10. Counterparts. 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 4.11. Waiver of Immunity. Transferee 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 setoff or counterclaim relating to this
Agreement from the jurisdiction of any competent court, 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).
Transferee 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. ss. 1602, et seq. The foregoing waiver shall
constitute a present waiver of immunity at any time any action is
initiated against Transferee with respect to this Agreement.
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Section 4.12. Remedies. In addition to any other remedies
which may be available to Sprint (including any remedies which
Sprint may have at law or in equity):
(a) Transferee agrees that Sprint shall have no
obligation to honor transfers of Sprint Voting Securities or
other equity interests in Sprint to FT, DT or any of their
respective Affiliates or Associates which would cause any of FT,
DT and their respective Affiliates or Associates to Beneficially
Own Sprint Voting Securities or other equity interests in Sprint
in violation of this Agreement, any such transfers shall be void
and of no effect, and Sprint shall be entitled to instruct any
transfer agent or agents for the equity interests in Sprint to
refuse to honor such transfers; and
(b) Transferee acknowledges the provisions set forth
in ARTICLE SIXTH, Section 2.5 of the Articles, ARTICLE SIXTH,
Section 8.5(b) of the Articles, and Section 3.5 and Article VIII
of the Amended and Restated Stockholders' Agreement relating to
the consequences of a breach of certain provisions of this
Agreement or any Qualified Subsidiary Standstill Agreement or to
the consequences of certain actions taken by a Government
Affiliate, Qualified Stock Purchaser, Strategic Investor or
Related Company.
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IN WITNESS WHEREOF, Sprint and Transferee have caused their
respective duly authorized officers to execute this Agreement as
of the day and year first above written.
SPRINT CORPORATION
By:______________________
Name:
Title:
[QUALIFIED SUBSIDIARY]
By:______________________
Name:
Title:
-22-
EXHIBIT B
STANDSTILL AGREEMENT
THIS STANDSTILL AGREEMENT (this "Agreement") dated as of
_______ __, 1998 by and among SPRINT CORPORATION, a corporation
formed under the laws of Kansas ("Sprint"), [STRATEGIC INVESTOR],
a [company] [partnership] formed under the laws of ___________
("Investor"), and [PARENT] ("Parent" shall include any entity
that Controls (as such term is defined in the Stockholders'
Agreement) the Investor);
R E C I T A L S
WHEREAS, Sprint, France Telecom S.A. ("FT") and Deutsche
Telekom AG ("DT") entered into an Investment Agreement dated as
of July 31, 1995, as amended (the "Investment Agreement"),
pursuant to which FT and DT purchased shares of capital stock of
Sprint;
WHEREAS, as a condition to Sprint's entering into the
Investment Agreement, Sprint, FT and DT entered into a Standstill
Agreement dated as of July 31, 1995, which agreement was amended
on June 24, 1997 (as so amended, the "Original Standstill
Agreement");
WHEREAS, Sprint, FT and DT entered into a Master
Restructuring and Investment Agreement dated as of May 26, 1998,
(the "FT/DT Restructuring Agreement"), which contemplates, among
other things, the purchase by FT and DT of shares of PCS Common
Stock -- Series 3, par value $ per share, of Sprint;
WHEREAS, as a condition to its entering into the FT/DT
Restructuring Agreement, Sprint has required that FT and DT enter
into that certain Standstill Agreement dated as of __________,
1998 (the "Standstill Agreement"), which contains certain
restrictions on purchases of Sprint capital stock by FT and DT
and their respective Affiliates and Associates and certain other
limitations on FT and DT and their respective Affiliates and
Associates;
WHEREAS, Section 2.2 of the Stockholders' Agreement
provides that FT and DT may, under certain circumstances and in
accordance with the terms of Section 2.2 of the Stockholders'
Agreement, transfer shares of Class A Stock to one or more
Qualified Subsidiaries, each of which Qualified Subsidiaries
shall execute a Qualified Subsidiary Standstill Agreement prior
to and as a condition to the effectiveness of such transfer;
WHEREAS, under the terms of the Investment Agreement and
the Stockholders' Agreement, Strategic Investors collectively are
permitted to own up to 20% of the equity interests in a Qualified
Subsidiary, provided that any such Strategic Investor has
executed a Strategic Investor Standstill Agreement;
WHEREAS, Investor has indicated an intention to become a
holder of equity interests in [specify Qualified Subsidiary in
which Investor is seeking to invest]; and
WHEREAS, this Agreement is a Strategic Investor Standstill
Agreement which Investor is executing in accordance with Section
2.2 of the Stockholders' Agreement and Section 4.2 of the
Standstill Agreement.
NOW, THEREFORE, in consideration of these premises and the
covenants and agreements contained herein, and for other good and
valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, each of Investor, Parent and Sprint (each a
"Party" and collectively the "Parties"), intending to be legally
bound, hereby agree as follows:
ARTICLE 1.
DEFINITIONS AND CONSTRUCTION
Section 1.1. Certain Definitions. As used in this
Agreement, the following terms shall have the meanings specified
below:
"Acquisition Proposal" shall mean any proposal involving a
transaction of the kind described in Section 8.6 of ARTICLE SIXTH
of Sprint's Articles.
"Affiliate" shall mean, with respect to any Person, any
other Person that directly, or indirectly through one or more
intermediaries, Controls or is Controlled by, or is under common
Control with, such Person, provided that Investor and Parent
shall not be deemed Affiliates of Sprint, and provided further,
that the term "Affiliate" with respect to FT and DT, shall have
the meaning set forth in the Standstill Agreement.
"Amended and Restated Stockholders' Agreement" shall have
the meaning set forth in Article VIII of the FT/DT Restructuring
Agreement.
"Amended Other Agreements" shall mean the FT/DT
Restructuring Agreement, the Amended and Restated Stockholders'
Agreement, the Amended and Restated Registration Rights Agreement
(as defined in the Amended and Restated Stockholders' Agreement),
and the Amended and Restated Confidentiality Agreements (as
defined in the Amended and Restated Stockholders' Agreement).
"Beneficial Owner" (including, with its correlative
meanings, "Beneficially Own" and "Beneficial Ownership"), with
respect to any securities, shall mean any Person which:
(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
-2-
securities pursuant to any agreement, arrangement or
understanding (whether or not in writing), including pursuant to
the FT/DT Restructuring 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 or
Associate thereof).
"Class A Common Stock" shall mean the Class A Common Stock,
par value U.S. $2.50 per share, of Sprint.
"Class A Stock" shall mean the Class A Common Stock, the
Series 3 FON Stock and the Series 3 PCS Stock.
"Control" (including, with its correlative meanings,
"Controlled by" and "under common Control with") shall mean, with
respect to a Person or Group:
(a) ownership by such Person or Group of Votes
entitling it to exercise in the aggregate more than 50 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.
"CP Closing" shall have the meaning set forth in Article
VIII of the FT/DT Restructuring Agreement.
"DT" shall have the meaning set forth in the Recitals to
this Agreement.
"FT" shall have the meaning set forth in the Recitals to
this Agreement.
-3-
"FT/DT Restructuring Agreement" means the Master
Restructuring and Investment Agreement dated as of May 26, 1998
by and among Sprint, FT and DT.
"Government Affiliate" shall mean any Governmental
Authority of France or Germany or any other Person Controlled,
directly or indirectly (other than by virtue of a government's
inherent regulatory or statutory powers to control persons or
entities within its jurisdiction), by any such Governmental
Authority, provided that FT, DT, Atlas and any other Person
directly, or indirectly through one or more intermediaries,
Controlled by FT, DT or Atlas shall not be Government Affiliates.
"Group" shall mean any group within the meaning of Section
13(d)(3) of the Exchange Act as in effect on the date hereof.
"Number of Shares Issuable With Respect to the Class A
Equity Interest in the FON Group" shall have the meaning set
forth in ARTICLE SIXTH, Section 10 of the Articles of
Incorporation of Sprint, as amended from time to time.
"Number of Shares Issuable With Respect to the Class A
Equity Interest in the PCS Group" shall have the meaning set
forth in ARTICLE SIXTH, Section 10 of the Articles of
Incorporation of Sprint, as amended from time to time.
"Outstanding Sprint FON Stock" shall mean the shares of
Sprint FON Stock outstanding as of any particular date, plus (i)
all shares of Sprint FON Stock which as of such date any of FT or
DT or any of their respective Affiliates is committed to acquire
from Sprint or has the right to acquire (or to commit to acquire)
from Sprint pursuant to the FT/DT Restructuring Agreement and the
Amended and Restated Stockholders' Agreement, and (ii) the
aggregate Number of Shares Issuable With Respect to the Class A
Equity Interest in the FON Group.
"Outstanding Sprint PCS Stock" shall mean the shares of
Sprint PCS Stock outstanding as of any particular date, plus (i)
all shares of Sprint PCS Stock which as of such date any of FT or
DT or any of their respective Affiliates is committed to acquire
from Sprint or has the right to acquire (or to commit to acquire)
from Sprint pursuant to the Amended and Restated Stockholders'
Agreement, plus (ii) the aggregate Number of Shares Issuable With
Respect to the Class A Equity Interest in the PCS Group as of
such date.
"Outstanding Sprint Voting Securities" shall mean (i) the
Sprint Voting Securities outstanding as of any particular date,
plus (ii) all Sprint Voting Securities which as of such date any
of FT or DT or any of their respective Affiliates is committed to
acquire from Sprint or has the right to acquire (or to commit to
acquire) from Sprint pursuant to the Amended and Restated
Stockholders' Agreement.
"Qualified Stock Purchaser Standstill Agreement" shall mean
a Standstill Agreement in form and substance satisfactory to
Sprint, FT and DT.
-4-
"Qualified Subsidiary Standstill Agreement" shall mean a
Standstill Agreement in the form of Exhibit A.
"Recapitalization" shall have the meaning set forth in
Article VIII of the FT/DT Restructuring Agreement.
"Record Date Period" shall mean a period of ten Trading
Days beginning on the ninth Trading Day (as defined in the
Amended and Restated Stockholders' Agreement) before a record
date for a meeting of Sprint's stockholders or for the payment of
dividends and ending on (and including) such record date (which
shall be a Trading Day).
"Related Company" shall mean any Person not Controlled by
FT or DT, but in which FT, DT and their respective Affiliates and
Associates, individually or in the aggregate, directly or
indirectly through one or more intermediaries, own securities
entitling them to exercise in the aggregate more than 35 percent
of the Voting Power of such Person.
"Series 1 FON Stock" shall mean the FON Common Stock --
Series 1, par value U.S. $___ per share, of Sprint to be created
in connection with the Recapitalization.
"Series 1 PCS Stock" shall mean the PCS Common Stock --
Series 1, par value U.S. $___ per share, of Sprint to be created
by the Initial Charter Amendment.
"Series 2 FON Stock" shall mean the FON Common Stock --
Series 2, par value U.S. $___ per share, of Sprint to be created
by the Subsequent Charter Amendment.
"Series 2 PCS Stock" shall mean the PCS Common Stock --
Series 2, par value U.S. $___ per share, of Sprint to be created
by the Initial Charter Amendment.
"Series 3 FON Stock" shall mean the FON Common Stock --
Series 3, par value U.S. $___ per share, of Sprint to be created
by the Subsequent Charter Amendment.
"Series 3 PCS Stock" shall mean the PCS Common Stock --
Series 3, par value U.S. $___ per share, of Sprint to be created
by the Initial Charter Amendment.
"Sprint" shall have the meaning set forth in the
introductory paragraph of this Agreement.
"Sprint FON Common Stock" shall mean (i) prior to the
Recapitalization, the Common Stock, par value U.S. $2.50 per
share, of Sprint, and (ii) following the Recapitalization, the
Series 1 FON Stock and the Series ▇ ▇▇▇ ▇▇▇▇▇.
"▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇" shall mean the Sprint FON Common Stock
and the Series 3 FON Stock.
"Sprint PCS Common Stock" shall mean the Series 1 PCS Stock
and the Series 2 PCS Stock.
-5-
"Sprint PCS Preferred Stock" shall mean the Preferred Stock
-- Series 7, no par value, of Sprint, which is to be created
prior to the CP Closing.
"Sprint PCS Stock" shall mean the Sprint PCS Common Stock,
the Sprint PCS Preferred Stock and the Series 3 PCS Stock.
"Sprint Rights Plan" shall mean the Rights Agreement dated
as of June 9, 1997, as amended, between Sprint and UMB Bank,
n.a., as rights agent.
"Sprint Voting Securities" shall mean the Sprint FON Common
Stock, the Sprint PCS Common Stock, the Sprint PCS Preferred
Stock, the Class A Stock and any other securities of Sprint
having the right to vote.
"Standstill Agreement" shall have the meaning set forth in
the Recitals to this Agreement.
"Strategic Investor" shall mean any Person which owns
directly any equity interests in a Qualified Subsidiary, other
than FT, DT, any wholly owned Subsidiary of FT or DT or a Passive
Financial Institution.
"Strategic Investor Standstill Agreement" shall mean a
Standstill Agreement in the form of Exhibit B attached to the
Standstill Agreement.
"Vote" shall mean, as to any entity, the ability to cast a
vote at a stockholders' or comparable meeting of such entity with
respect to the election of directors or other members of such
entity's governing body, provided that:
(i) with respect to Sprint only, the term "Vote" shall mean
the ability to exercise general voting power (as opposed to the
exercise of special voting or disapproval rights such as those
set forth in the Class A Provisions) with respect to matters
other than the election of directors at a meeting of the
stockholders of Sprint;
(ii) with respect to Sprint only, the term "Vote" shall
include the aggregate number of Votes represented by all Sprint
Voting Securities which as of such date any of FT or DT or any of
their respective Affiliates Beneficially Owns or is committed to
acquire from Sprint or has the right to acquire (or to commit to
acquire) from Sprint pursuant to the Amended and Restated
Stockholders' Agreement;
(iii) except as set forth in clause (iv) of this
definition, with respect to Sprint only, in determining the
number of Votes outstanding at any date and/or represented by any
Sprint Voting Securities at any date, a record date for
determining the stockholders entitled to vote shall be deemed to
have been set by the Board of Directors of Sprint on each such
date and accordingly the number of Votes represented by the
Sprint PCS Stock on any given date shall be deemed to have been
-6-
adjusted in the manner provided in Section 3.2 of Article SIXTH
of the Articles as if such date were a record date for
determining the stockholders entitled to vote; and
(iv) notwithstanding clause (iii) of this definition,
during a Record Date Period, the number of Votes outstanding at
any date from and including the first day of such period and to
and including the last day of such period and/or represented by
any Sprint Voting Securities at any date during such period shall
be determined in the manner provided in Section 3.2 of Article
SIXTH with respect to the record date occurring on the last day
of such Record Date Period including, in the case of a record
date for the payment of dividends, as if such date were a record
date for determining the stockholders entitled to vote.
"Voting Power" shall mean, as to any entity as at any date,
the aggregate number of Votes outstanding as at such date in
respect of such entity, provided that, in the case of Sprint, the
term "Voting Power" shall mean the aggregate number of Votes
represented by all Outstanding Sprint Voting Securities.
In addition to the foregoing, each of the following terms
shall have the respective meanings given to such term in Article
I of the Amended and Restated Stockholders' Agreement: Alien,
Applicable Law, Articles, Associate, Atlas, Change of Control,
Class A Provisions, Exchange Act, FCC, France, Germany,
Governmental Authority, Initial Charter Amendment, Joint Venture
Agreement, Joint Venture Documents, JV Entity, Major Competitor,
Person, Qualified Stock Purchaser, Qualified Subsidiary, SEC and
Subsidiary.
Section 1.2. Interpretation and Construction of this
Agreement. The definitions in Section 1.1 shall apply equally to
both the singular and plural forms of the terms defined. Whenever
the context may require, any pronoun shall include the
corresponding masculine, feminine and neuter forms. The words
"include," "includes" and "including" shall be deemed to be
followed by the phrase "without limitation." All references
herein to Articles, Sections and Exhibits shall be deemed to be
references to Articles and Sections of, and Exhibits to, this
Agreement unless the context shall otherwise require. The
headings of the Articles and Sections are inserted for
convenience of reference only and are not intended to be a part
of or to affect the meaning or interpretation of this Agreement.
Unless the context shall otherwise require or provide, any
reference to any agreement or other instrument or statute or
regulation is to such agreement, instrument, statute or
regulation as amended and supplemented from time to time (and, in
the case of a statute or regulation, to any successor provision).
ARTICLE 2.
RESTRICTIONS ON ACQUISITION OF VOTING SECURITIES BY
INVESTOR, PARENT AND THEIR AFFILIATES AND ASSOCIATES
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Section 2.1. Acquisition Restrictions. Subject to Section
2.2, each of Investor and Parent agrees that it will not, and
will cause each of its Affiliates and Associates not to, directly
or indirectly, acquire, offer to acquire, or agree to acquire, by
purchase or otherwise, Beneficial Ownership of Sprint Voting
Securities other than through its ownership of equity interests
in [specify Qualified Subsidiary in which Investor is seeking to
invest].
Section 2.2. Sprint Rights Plan. Each of Investor and
Parent agrees that it will not, and will cause each of its
respective Affiliates not to, directly or indirectly, acquire,
offer to acquire, or agree to acquire, by purchase or otherwise,
Beneficial Ownership of any Sprint Voting Securities if such
acquisition would result in Investor or Parent or any of their
respective Affiliates being deemed an Acquiring Person (as such
term is defined in the Sprint Rights Plan) 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 Sprint Rights Plan).
ARTICLE 3.
OTHER STANDSTILL PROVISIONS; QUORUM
Section 3.1. Standstill Covenants. Each of Investor and
Parent agrees that it will not, and it will cause each of its
respective Affiliates and Associates not to, directly or
indirectly, alone or in concert with others (including with any
of FT, DT, any Qualified Subsidiary, any Qualified Stock
Purchaser, any other Strategic Investor or any Related Company or
any of their respective Affiliates), unless specifically
requested in writing by the Chairman of Sprint or by a resolution
of a majority of the directors of Sprint, take any of the actions
set forth below, except to the extent expressly permitted or
provided for by the Amended Other Agreements:
(a) effect, seek, offer, propose (whether publicly or
otherwise) or cause or participate in, or assist any other Person
to effect, seek, offer or propose (whether publicly or otherwise)
or participate in:
(i) any acquisition of Beneficial Ownership of Sprint
Voting Securities or other equity interests in Sprint
which would result in a breach of Article 2 of this
Agreement;
(ii) any tender or exchange offer, merger, consolidation,
share exchange or business combination involving
Sprint or any material portion of its business or any
purchase of all or any substantial part of the assets
of Sprint or any material portion of its business;
(iii) any recapitalization, restructuring, liquidation,
dissolution or other extraordinary transaction with
respect to Sprint or any material portion of its
business; or
-8-
(iv) any "solicitation" of "proxies" (as such terms are
used in the proxy rules of the SEC but without regard
to the exclusion set forth in Section 14a-1(l)(2)(iv)
from the definition of "solicitation") with respect to
Sprint or any of its Affiliates or any action
resulting in such Person becoming a "participant" in
any "election contest" (as such terms are used in the
proxy rules of the SEC) with respect to Sprint or any
of its Affiliates;
(b) propose any matter for submission to a vote of
stockholders of Sprint or any of its Affiliates; provided that
nothing in this Section 3.1(b) shall restrict the manner in which
the members of the Board of Directors of Sprint elected by the
holders of Class A Stock may (i) vote on any matter submitted to
such Board, or (ii) participate in deliberations or discussions
of such Board (including making suggestions and raising issues to
the Board, so long as such actions do not otherwise violate any
other provision of this Section 3.1 or Section 3.2) in their
capacity as members of such Board and in no other capacity,
including any capacity such persons serving as directors
otherwise may have as a director, officer, employee, agent or
representative of any other Person, including any holder of Class
A Stock;
(c) form, join or participate in a Group with respect
to any Sprint Voting Securities (other than any Group whose
members consist solely of Investor, Parent and any of their
Affiliates or Associates);
(d) grant any proxy with respect to any Sprint Voting
Securities to any Person not designated by Sprint, except for
proxies granted to individuals who are officers, employees or
regular agents or advisors of Investor who have received specific
instructions from Investor, as to the voting of such Sprint
Voting Securities with respect to the matter or matters for which
the proxy is granted;
(e) deposit any Sprint Voting Securities in a voting
trust or subject any Sprint Voting Securities to any arrangement
or agreement with respect to the voting of such Sprint Voting
Securities or other agreement having similar effect, except for
agreements solely among Investor and Parent;
(f) execute any written stockholder consent with
respect to Sprint, except for written consents executed by such
Persons as holders of the Class A Stock in connection with (i)
the election of Class A Directors (as defined in the Articles),
(ii) the approval or disapproval of a Subject Event, Major
Issuance or Major Competitor Transaction (each as defined in the
Articles) during the period in which the holders of the Class A
Stock are entitled to exercise disapproval rights with respect to
such matter, (iii) any vote by the holders of Class A Common
Stock, Series 3 FON Stock, or Series 3 PCS Stock with respect to
which holders of each such class or series of stock is entitled
to vote separately as a class, or (iv) any vote by the holders of
the Class A Stock with respect to which such holders are entitled
to vote together as a single class;
-9-
(g) take any other action to seek to affect the
control of the management or Board of Directors of Sprint or any
of its Affiliates; provided that nothing in this Section 3.1(g)
shall restrict the manner in which the members of the Board of
Directors of Sprint elected by the holders of Class A Stock may
(i) vote on any matter submitted to such Board, or (ii)
participate in deliberations or discussions of such Board
(including making suggestions and raising issues to the Board, so
long as such actions do not otherwise violate any other provision
of this Section 3.1 or Section 3.2) in their capacity as members
of such Board and in no other capacity, including any capacity
such persons serving as directors otherwise may have as a
director, officer, employee, agent or representative of any other
Person, including any holder of Class A Stock;
(h) enter into any discussions, negotiations,
arrangements or understandings with any Person (including any of
FT, DT, any Qualified Subsidiary, any Qualified Stock Purchaser,
any other Strategic Investor, or any Related Company or any of
their respective Affiliates) other than the directors, officers,
employees, agents or advisors of Investor or Parent with respect
to any of the foregoing, or advise, assist, encourage or seek to
persuade others to take any action with respect to any of the
foregoing;
(i) disclose to any Person (including any of FT, DT,
any Qualified Subsidiary, any Qualified Stock Purchaser, any
other Strategic Investor, or any Related Company or any of their
respective Affiliates) other than the directors, officers,
employees, agents or advisors of Investor or Parent any
intention, plan or arrangement inconsistent with the foregoing or
with the restrictions on transfer set forth in Article II of the
Amended and Restated Stockholders' Agreement or form any such
intention which would result in Investor or Parent or any of
their respective Affiliates or Associates being required to make
any such disclosure in any filing with a Governmental Authority
or being required by Applicable Law to make a public announcement
with respect thereto; or
(j) request Sprint or any of its Affiliates,
directors, officers, employees, representatives, advisors or
agents, directly or indirectly, to amend or waive in any material
respect this Agreement (including this Section 3.1(j)) or the
articles of incorporation or the bylaws of Sprint or any of its
Affiliates.
Section 3.2. Press Releases, Etc. by Investor and Parent.
(a) Subject to Section 3.2(b), each of Investor and
Parent may issue such press releases and make such other public
communications to the financial community and to its stockholders
and such other public statements made in the ordinary course
relating to its investment in Sprint, in each case as it
reasonably deems appropriate and customary. Prior to making any
such press release or other communication, Investor and Parent
will use reasonable efforts to consult with Sprint in good faith
regarding the form and content of any such communication, and
Investor and Parent will use reasonable efforts to coordinate any
such communication with any decisions reached by Sprint with
respect to disclosures relating to such matters.
-10-
(b) Notwithstanding the provisions of Section 3.2(a),
unless required by Applicable Law, neither Investor nor Parent
nor any of their respective Affiliates or Associates, may make
any press release, public announcement or other communication
with respect to any of the matters described in Sections 3.1(a),
3.1(b), 3.1(c), 3.1(g), 3.1(h) or 3.1(j) without the prior
written consent of the Chairman of Sprint or by a resolution of a
majority of the directors of Sprint. Nothing in this Section 3.2
shall permit Investor or Parent to take any action which would
otherwise violate any provision contained in Section 3.1.
Section 3.3. Notice of Proposals Regarding Acquisition
Transactions. Each of Investor and Parent agrees that it will
notify Sprint promptly if any inquiries or proposals which
Investor or Parent reasonably believes are of substance are
received by, any information is exchanged with respect to, or any
negotiations or substantive discussions are initiated or
continued with, Investor or Parent or any of their respective
Affiliates regarding any Acquisition Proposal involving Sprint or
any purchase of any of the shares of capital stock of Sprint
Beneficially Owned by Investor, Parent or any of their respective
Affiliates pursuant to a tender offer or exchange offer.
ARTICLE 4.
MISCELLANEOUS
Section 4.1. Termination. The provisions of this Agreement
shall terminate if Sprint proceeds with a transaction involving a
Change of Control following the process described in Section 4.1
of the Amended and Restated Stockholders' Agreement. Any
termination of this Agreement as provided herein shall be without
prejudice to the rights of any Party arising out of the breach by
any other Party of any provision of this Agreement.
Section 4.2. 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:
Investor: [Specify notice address]
Parent: [Specify notice address]
Sprint: 2330 Shawnee Mission Parkway
East Wing
Westwood, Kansas 66205
U.S.A.
Attention: General Counsel
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
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with a copy to:
King & Spalding
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇.▇.▇.
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Esq.
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
The Parties shall promptly notify each other in the manner
provided in this Section 4.2 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.
Section 4.3. 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 4.4. Entire Agreement. This Agreement, including
the Exhibits attached hereto, embodies the entire agreement and
understanding of the Parties in respect of the subject matter
contained herein, provided that this provision shall not abrogate
any other written agreement between the Parties executed
simultaneously with this Agreement. This Agreement supersedes all
prior agreements and understandings between the Parties with
respect to such subject matter.
Section 4.5. 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 4.6. 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 4.7. 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).
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(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 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 CLAIMS FOR INTERIM RELIEF, COUNTERCLAIMS, 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 INVESTOR AND PARENT 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
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 INVESTOR AND PARENT IN THE MANNER
PROVIDED IN SECTION 4.2. INVESTOR AND PARENT 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 INVESTOR AND
PARENT 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 AGENT WITH THE SAME
EFFECT AS IF NAMED HEREIN IN PLACE OF CT CORPORATION SYSTEM. EACH
OF INVESTOR AND PARENT 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
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OF INVESTOR AND PARENT 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 PARTIES 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 BREACH HAS OCCURRED,
AND AGREES TO WAIVE ANY REQUIREMENT FOR THE SECURING OR POSTING
OF ANY BOND IN CONNECTION WITH SUCH REMEDY.
Section 4.8. 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 Applicable 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 4.9. Language. [Include the following if Investor
or Parent is a Governmental Authority of France: The parties
hereto 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 loi nombre 94-665 du 4 aout 1994 relative a l'emploi de la
langue francaise, the parties hereto have prepared a French
version of this Agreement, which French version was executed and
delivered simultaneously with the execution and delivery of the
English version hereof. The parties deem the French and English
versions of this Agreement to be equally authoritative.] [Include
the following if Investor and Parent are not Governmental
Authorities of France: This Agreement has been concluded in the
English language and the original English version will govern in
the event of any inconsistency between such version and any
translation thereof.]
Section 4.10. Counterparts. 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 4.11. Remedies. In addition to any other remedies
which may be available to Sprint (including any remedies which
Sprint may have at law or in equity):
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(a) Each of Investor and Parent agrees that Sprint
shall have no obligation to honor transfers of Sprint Voting
Securities or other equity interests in Sprint to Investor,
Parent or any of their respective Affiliates or Associates which
would cause any of Investor, Parent and their respective
Affiliates or Associates to Beneficially Own Sprint Voting
Securities or other equity interests in Sprint in violation of
this Agreement, any such transfers shall be void and of no
effect, and Sprint shall be entitled to instruct any transfer
agent or agents for the equity interests in Sprint to refuse to
honor such transfers; and
(b) Investor and Parent acknowledge the provisions set
forth in ARTICLE SIXTH, Section 2.5 of the Articles, ARTICLE
SIXTH, Section 8.5(b) of the Articles, and Section 3.5 and
Article VIII of the Amended and Restated Stockholders' Agreement
relating to the consequences of a breach of certain provisions of
this Agreement or any Qualified Subsidiary Standstill Agreement
or to the consequences of certain actions taken by a Government
Affiliate, Qualified Stock Purchaser, Strategic Investor or
Related Company.
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IN WITNESS WHEREOF, Sprint, Investor and Parent have caused
their respective duly authorized officers to execute this
Agreement as of the day and year first above written.
SPRINT CORPORATION
By:_____________________
Name:
Title:
[STRATEGIC INVESTOR]
By:_____________________
Name:
Title:
[PARENT]
By:_____________________
Name:
Title
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EXHIBIT C
STANDSTILL AGREEMENT
THIS STANDSTILL AGREEMENT (this "Agreement") dated as of
_______ __, 1998 by and among SPRINT CORPORATION, a corporation
formed under the laws of Kansas ("Sprint"), [QUALIFIED STOCK
PURCHASER], a [company] [partnership] formed under the laws of
___________ ("Buyer"), and [PARENT] ("Parent" shall include any
entity that Controls (as such term is defined in the
Stockholders' Agreement) the Buyer);
R E C I T A L S
WHEREAS, Sprint, France Telecom S.A. ("FT") and Deutsche
Telekom AG ("DT") entered into an Investment Agreement dated as
of July 31, 1995, as amended (the "Investment Agreement"),
pursuant to which FT and DT purchased shares of capital stock of
Sprint;
WHEREAS, as a condition to Sprint's entering into the
Investment Agreement, Sprint, FT and DT entered into a Standstill
Agreement dated as of July 31, 1995, which agreement was amended
on June 24, 1997 (as so amended, the "Original Standstill
Agreement");
WHEREAS, Sprint, FT and DT entered into a Master
Restructuring and Investment Agreement dated as of May 26, 1998,
(the "FT/DT Restructuring Agreement"), which contemplates, among
other things, the purchase by FT and DT of shares of PCS Common
Stock -- Series 3, par value $ per share, of Sprint;
WHEREAS, as a condition to its entering into the FT/DT
Restructuring Agreement, Sprint required FT and DT to enter into
that certain Amended and Restated Standstill Agreement dated as
of _____________, 1998 (the "Standstill Agreement"), which
contains certain restrictions on purchases of Sprint capital
stock by FT and DT and their respective Affiliates and Associates
and certain other limitations on FT and DT and their respective
Affiliates and Associates;
WHEREAS, Section 2.2(b) of the Standstill Agreement
provides that FT and DT may, under certain circumstances and in
accordance with the terms of Section 7.2 of the Amended and
Restated Stockholders' Agreement or Section 2.2(b) of the
Standstill Agreement, assign their right to purchase shares of
Class A Stock to a Qualified Stock Purchaser, which Qualified
Stock Purchaser shall execute a Qualified Stock Purchaser
Standstill Agreement prior to and as a condition to the
effectiveness of such assignment;
WHEREAS, Article VI of the Stockholders' Agreement provides
that Class A Holders may, under certain circumstances and in
accordance with the terms of Section 7.2 of the Stockholders'
Agreement, assign their right to purchase from Sprint shares of
Class A Stock to a Qualified Stock Purchaser, which Qualified
Stock Purchaser shall execute a Qualified Stock Purchaser
Standstill Agreement prior to and as a condition to the
effectiveness of such assignment;
WHEREAS, Buyer is a Qualified Stock Purchaser to which
[name of Class A Holder making assignment] has indicated an
intention to transfer its right to purchase certain shares of
Class A Stock representing ___% of the Voting Power of Sprint;
and
NOW, THEREFORE, in consideration of these premises and the
covenants and agreements contained herein, and for other good and
valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, each of Sprint, Buyer and Parent (each a
"Party" and collectively the "Parties"), intending to be legally
bound, hereby agree as follows:
ARTICLE 1.
DEFINITIONS AND CONSTRUCTION
Section 1.1. Certain Definitions. As used in this
Agreement, the following terms shall have the meanings specified
below:
"Acquisition Proposal" shall mean any proposal involving a
transaction of the kind described in Section 8.6 of ARTICLE SIXTH
of Sprint's Articles.
"Affiliate" shall mean, with respect to any Person, any
other Person that directly, or indirectly through one or more
intermediaries, Controls or is Controlled by, or is under common
Control with, such Person, provided that Buyer and Parent shall
not be deemed Affiliates of Sprint, and provided further that the
term "Affiliate" with respect to FT and DT shall have the meaning
set forth in the Standstill Agreement.
"Amended and Restated Stockholders' Agreement" shall have
the meaning set forth in Article VIII of the FT/DT Restructuring
Agreement.
"Amended Other Agreements" shall mean the FT/DT
Restructuring Agreement, the Amended and Restated Stockholders'
Agreement, the Amended and Restated Registration Rights Agreement
(as defined in the Amended and Restated Stockholders' Agreement),
and the Amended and Restated Confidentiality Agreements (as
defined in the Amended and Restated Stockholders' Agreement).
"Beneficial Owner" (including, with its correlative
meanings, "Beneficially Own" and "Beneficial Ownership"), with
respect to any securities, shall mean any Person which:
(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 FT/DT Restructuring Agreement and the Amended and
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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 or
Associate thereof).
"Class A Common Stock" shall mean the Class A Common Stock,
par value U.S. $2.50 per share, of Sprint.
"Class A Stock" shall mean the Class A Common Stock, the
Series 3 FON Stock and the Series 3 PCS Stock.
"Control" (including, with its correlative meanings,
"Controlled by" and "under common Control with") shall mean, with
respect to a Person or Group:
(a) ownership by such Person or Group of Votes
entitling it to exercise in the aggregate more than 50 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.
"DT" shall have the meaning set forth in the Recitals to
this Agreement.
"FT" shall have the meaning set forth in the Recitals to
this Agreement.
"FT/DT Restructuring Agreement" means the Master
Restructuring and Investment Agreement dated as of May 26, 1998
by and among Sprint, FT and DT.
"Group" shall mean any group within the meaning of Section
13(d)(3) of the Exchange Act as in effect on the date hereof.
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"Number of Shares Issuable With Respect to the Class A
Equity Interest in the FON Group" shall have the meaning set
forth in ARTICLE SIXTH, Section 10 of the Articles of
Incorporation of Sprint, as amended from time to time.
"Number of Shares Issuable With Respect to the Class A
Equity Interest in the PCS Group" shall have the meaning set
forth in ARTICLE SIXTH, Section 10 of the Articles of
Incorporation of Sprint, as amended from time to time.
"Outstanding Sprint FON Stock" shall mean the shares of
Sprint FON Stock outstanding as of any particular date, plus (i)
all shares of Sprint FON Stock which as of such date any of FT or
DT or any of their respective Affiliates is committed to acquire
from Sprint or has the right to acquire (or to commit to acquire)
from Sprint pursuant to the FT/DT Restructuring Agreement and the
Amended and Restated Stockholders' Agreement, and (ii) the
aggregate Number of Shares Issuable With Respect to the Class A
Equity Interest in the FON Group.
"Outstanding Sprint PCS Stock" shall mean the shares of
Sprint PCS Stock outstanding as of any particular date, plus (i)
all shares of Sprint PCS Stock which as of such date any of FT or
DT or any of their respective Affiliates is committed to acquire
from Sprint or has the right to acquire (or to commit to acquire)
from Sprint pursuant to the Amended and Restated Stockholders'
Agreement, plus (ii) the aggregate Number of Shares Issuable With
Respect to the Class A Equity Interest in the PCS Group as of
such date.
"Outstanding Sprint Voting Securities" shall mean (i) the
Sprint Voting Securities outstanding as of any particular date,
plus (ii) all Sprint Voting Securities which as of such date any
of FT or DT or any of their respective Affiliates is committed to
acquire from Sprint or has the right to acquire (or to commit to
acquire) from Sprint pursuant to the Amended and Restated
Stockholders' Agreement.
"Percentage Limitation" shall have the meaning set forth in
Section 2.1.
"Percentage Ownership Interest" shall mean, with respect to
any Person, that percentage of the Voting Power of Sprint
represented by Votes associated with the Sprint Voting Securities
owned of record by such Person or by its nominees.
"Qualified Stock Purchaser Standstill Agreement" shall mean
a Standstill Agreement in form and substance satisfactory to
Sprint, FT and DT.
"Qualified Subsidiary Standstill Agreement" shall mean a
Standstill Agreement in the form of Exhibit A to the Standstill
Agreement.
"Recapitalization" shall have the meaning set forth in
Article VIII of the FT/DT Restructuring Agreement.
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"Record Date Period" shall mean a period of ten Trading
Days beginning on the ninth Trading Day (as defined in the
Amended and Restated Stockholders' Agreement) before a record
date for a meeting of Sprint's stockholders or for the payment of
dividends and ending on (and including) such record date (which
shall be a Trading Day).
"Related Company" shall mean any Person not Controlled by
Buyer or Parent, but in which Buyer, Parent and their respective
Affiliates and Associates, individually or in the aggregate,
directly or indirectly through one or more intermediaries, own
securities entitling them to exercise in the aggregate more than
35 percent of the Voting Power of such Person.
"Series 1 FON Stock" shall mean the FON Common Stock --
Series 1, par value U.S. $___ per share, of Sprint to be created
in connection with the Recapitalization.
"Series 1 PCS Stock" shall mean the PCS Common Stock --
Series 1, par value U.S. $___ per share, of Sprint to be created
by the Initial Charter Amendment.
"Series 2 FON Stock" shall mean the FON Common Stock --
Series 2, par value U.S. $___ per share, of Sprint to be created
by the Subsequent Charter Amendment.
"Series 2 PCS Stock" shall mean the PCS Common Stock --
Series 2, par value U.S. $___ per share, of Sprint to be created
by the Initial Charter Amendment.
"Series 3 FON Stock" shall mean the FON Common Stock --
Series 3, par value U.S. $___ per share, of Sprint to be created
by the Subsequent Charter Amendment.
"Series 3 PCS Stock" shall mean the PCS Common Stock --
Series 3, par value U.S. $___ per share, of Sprint to be created
by the Initial Charter Amendment.
"Sprint" shall have the meaning set forth in the
introductory paragraph of this Agreement.
"Sprint FON Common Stock" shall mean (i) prior to the
Recapitalization, the Common Stock, par value U.S. $2.50 per
share, of Sprint, and (ii) following the Recapitalization, the
Series 1 FON Stock and the Series ▇ ▇▇▇ ▇▇▇▇▇.
"▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇" shall mean the Sprint FON Common Stock
and the Series 3 FON Stock.
"Sprint PCS Common Stock" shall mean the Series 1 PCS Stock
and the Series 2 PCS Stock.
"Sprint PCS Preferred Stock" shall mean the Preferred Stock
-- Series 7, no par value, of Sprint, which is to be created
prior to the CP Closing.
-5-
"Sprint PCS Stock" shall mean the Sprint PCS Common Stock,
the Sprint PCS Preferred Stock and the Series 3 PCS Stock.
"Sprint Rights Plan" shall mean the Rights Agreement dated
as of June 9, 1997, as amended, between Sprint and UMB Bank,
n.a., as rights agent.
"Sprint Voting Securities" shall mean the Sprint FON Common
Stock, the Sprint PCS Common Stock, the Sprint PCS Preferred
Stock, the Class A Stock and any other securities of Sprint
having the right to Vote.
"Strategic Investor" shall mean any Person which owns
directly any equity interests in a Qualified Subsidiary, other
than FT, DT, any wholly owned Subsidiary of FT or DT or a Passive
Financial Institution.
"Strategic Investor Standstill Agreement" shall mean a
Standstill Agreement in the form of Exhibit B to Standstill
Agreement.
"Vote" shall mean, as to any entity, the ability to cast a
vote at a stockholders' or comparable meeting of such entity with
respect to the election of directors or other members of such
entity's governing body, provided that:
(i) with respect to Sprint only, the term "Vote" shall mean
the ability to exercise general voting power (as opposed to the
exercise of special voting or disapproval rights such as those
set forth in the Class A Provisions) with respect to matters
other than the election of directors at a meeting of the
stockholders of Sprint;
(ii) with respect to Sprint only, the term "Vote" shall
include the aggregate number of Votes represented by all Sprint
Voting Securities which as of such date any of FT or DT or any of
their respective Affiliates Beneficially Owns or is committed to
acquire from Sprint or has the right to acquire (or to commit to
acquire) from Sprint pursuant to the Amended and Restated
Stockholders' Agreement;
(iii) except as set forth in clause (iv) of this
definition, with respect to Sprint only, in determining the
number of Votes outstanding at any date and/or represented by any
Sprint Voting Securities at any date, a record date for
determining the stockholders entitled to vote shall be deemed to
have been set by the Board of Directors of Sprint on each such
date and accordingly the number of Votes represented by the
Sprint PCS Stock on any given date shall be deemed to have been
adjusted in the manner provided in Section 3.2 of Article SIXTH
of the Articles as if such date were a record date for
determining the stockholders entitled to vote; and
(iv) notwithstanding clause (iii) of this definition,
during a Record Date Period, the number of Votes outstanding at
any date from and including the first day of such period and to
and including the last day of such period and/or represented by
any Sprint Voting Securities at
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any date during such period shall be determined in the manner
provided in Section 3.2 of Article SIXTH with respect to the
record date occurring on the last day of such Record Date Period
including, in the case of a record date for the payment of
dividends, as if such date were a record date for determining the
stockholders entitled to vote.
"Voting Power" shall mean, as to any entity as at any date,
the aggregate number of Votes outstanding as at such date in
respect of such entity, provided that, in the case of Sprint, the
term "Voting Power" shall mean the aggregate number of Votes
represented by all Outstanding Sprint Voting Securities.
In addition to the foregoing, each of the following terms
shall have the respective meanings given to such term in Article
I of the Amended and Restated Stockholders' Agreement: Alien,
Applicable Law, Articles, Associate, Atlas, Change of Control,
Class A Provisions, Exchange Act, FCC, France, Germany,
Governmental Authority, Initial Charter Amendment, Joint Venture
Agreement, Joint Venture Documents, JV Entity, Passive Financial
Institution, Person, Qualified Stock Purchaser, Qualified
Subsidiary, SEC and Subsidiary.
Section 1.2. Interpretation and Construction of this
Agreement. The definitions in Section 1.1 shall apply equally to
both the singular and plural forms of the terms defined. Whenever
the context may require, any pronoun shall include the
corresponding masculine, feminine and neuter forms. The words
"include," "includes" and "including" shall be deemed to be
followed by the phrase "without limitation." All references
herein to Articles, Sections and Exhibits shall be deemed to be
references to Articles and Sections of, and Exhibits to, this
Agreement unless the context shall otherwise require. The
headings of the Articles and Sections are inserted for
convenience of reference only and are not intended to be a part
of or to affect the meaning or interpretation of this Agreement.
Unless the context shall otherwise require or provide, any
reference to any agreement or other instrument or statute or
regulation is to such agreement, instrument, statute or
regulation as amended and supplemented from time to time (and, in
the case of a statute or regulation, to any successor provision).
ARTICLE 2.
RESTRICTIONS ON ACQUISITION OF VOTING SECURITIES BY
BUYER, PARENT AND THEIR AFFILIATES AND ASSOCIATES
Section 2.Acquisition Restrictions. Subject to Section 2.2
and 2.3, each of Buyer and Parent agrees that it will not, and
will cause each of its Affiliates and Associates not to, directly
or indirectly, acquire, offer to acquire, or agree to acquire, by
purchase or otherwise, Beneficial Ownership of Sprint Voting
Securities if as a result of such acquisition, the Votes
represented by the Sprint Voting Securities Beneficially Owned in
the aggregate by Buyer and Parent and their respective Affiliates
and Associates would be in excess of __% [the definitive
agreement will specify the percentage assigned by Buyer in
accordance with Section 2.2(b)
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of the Standstill Agreement or Section 7.2 of the Amended and
Restated Stockholders' Agreement] of the Voting Power of Sprint
(the "Percentage Limitation").
Section 2.2. Effect of Action by Sprint; Inadvertent
Action.
(a) Subject to Section 2.3(b), neither Buyer nor
Parent shall be deemed in violation of this Article 2 if the
Beneficial Ownership of Sprint Voting Securities by Buyer, Parent
and their respective Affiliates and Associates exceeds the
Percentage Limitation (i) solely as a result of an acquisition of
Sprint Voting Securities by Sprint (including as a result of a
redemption by Sprint of its Sprint PCS Preferred Stock) that, by
reducing the number of Outstanding Sprint Voting Securities,
increases the proportionate number of Sprint Voting Securities
Beneficially Owned by Buyer, Parent and their respective
Affiliates and Associates, (ii) if the Beneficial Ownership of
Sprint Voting Securities by Buyer, Parent and their respective
Affiliates and Associates does not exceed the Percentage
Limitation by more than 0.5% and the acquisitions of Beneficial
Ownership which resulted in Buyer, Parent and their respective
Affiliates and Associates exceeding such Percentage Limitation
were undertaken in good faith and such Percentage Limitation was
exceeded inadvertently, (iii) solely as a result of any
readjustment in the relative Voting Power of the Sprint FON Stock
and the Sprint PCS Stock in accordance with the terms of the
Articles, (iv) solely as a result of a redemption or conversion
of any Sprint PCS Stock pursuant to ARTICLE SIXTH, Section 7 of
the Articles, or (v) because Buyer, Parent or their respective
Affiliates or Associates acquire Beneficial Ownership of Sprint
Voting Securities in excess of the Percentage Limitation in
reliance on information regarding the number of outstanding
shares of Sprint provided directly to any of Buyer, Parent and
their respective Affiliates and Associates by Sprint in response
to a request for such information by any of Buyer, Parent and
their respective Affiliates and Associates immediately prior to
such purchase.
(b) Notwithstanding Section 2.3(a), the Percentage
Limitation shall be deemed exceeded if (i) in the case of Section
2.3(a)(i), Buyer, Parent or any of their respective Affiliates or
Associates acquires Beneficial Ownership of any additional Sprint
Voting Securities after it has been notified of an acquisition of
Sprint Voting Securities by Sprint (including as a result of a
redemption by Sprint of its Sprint PCS Preferred Stock), (ii) in
the case of Section 2.3(a)(ii), Buyer, Parent or any of their
respective Affiliates or Associates acquires Beneficial Ownership
of any additional Sprint Voting Securities after it has been
notified or has knowledge that the Percentage Limitation has been
exceeded, (iii) in the case of Section 2.3(a)(iii), after a
readjustment in the relative Voting Power of the Sprint FON Stock
and the Sprint PCS Stock which results in Buyer, Parent and their
respective Affiliates and Associates having Beneficial Ownership
of Sprint Voting Securities in excess of any of the Percentage
Limitation, Buyer, Parent or any of their respective Affiliates
or Associates acquires Beneficial Ownership of any additional
Sprint Voting Securities, after being notified of, or having
knowledge of such readjustment in the relative Voting Power, (iv)
in the case of Section 2.3(a)(iv), after the redemption or
conversion of any Sprint PCS Stock pursuant to ARTICLE SIXTH,
Section 7 of the Articles which results in Buyer, Parent and
their respective Affiliates and Associates having
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Beneficial Ownership of Sprint Voting Securities in excess of the
Percentage Limitation, Buyer, Parent or any of their respective
Affiliates or Associates acquires Beneficial Ownership of any
additional Sprint Voting Securities after being notified of, or
having knowledge of, such redemption or conversion, and (v) in
the case of Section 2.3(a)(v), Buyer, Parent or any of their
respective Affiliates or Associates acquires Beneficial Ownership
of additional Sprint Voting Securities after it has been notified
that the information regarding the number of outstanding shares
previously provided to it was incorrect and it has been provided
by Sprint with correct information, unless in the case of clauses
(i), (ii), (iii), (iv) and (v):
(x) upon the acquisition of Beneficial Ownership of
such additional Sprint Voting Securities, Buyer, Parent and
their respective Affiliates and Associates do not
Beneficially Own in the aggregate more than the Percentage
Limitation, or
(y) subject to the rights of Sprint in Section 5.7 of
the Amended and Restated Stockholders' Agreement, such
acquisition is effected pursuant to (A) the exercise of
equity purchase rights by Buyer or Parent pursuant to the
Amended and Restated Stockholders' Agreement, or (B) market
purchases which are made solely in lieu of the exercise of
equity purchase rights by Buyer or Parent pursuant to the
Amended and Restated Stockholders' Agreement following the
issuance of securities by Sprint, so long as (1) either (I)
Buyer or Parent, as the case may be, has irrevocably waived
its rights to exercise the equity purchase rights in
respect of which such market purchases are made in lieu
thereof, or (II) the time period for the exercise of such
equity purchase rights has expired without the exercise of
such rights, and (2) following such market purchases, the
Percentage Ownership Interest of Buyer, Parent and their
respective Affiliates and Associates does not exceed the
Percentage Ownership Interest of Buyer, Parent and their
respective Affiliates and Associates which would have been
in effect had Buyer, Parent and their respective Affiliates
exercised such equity purchase rights.
Section 2.3. Sprint Rights Plan. Notwithstanding the
provisions of Sections 2.1 and 2.2, each of Buyer and Parent
agrees that it will not, and will cause each of its respective
Affiliates not to, directly or indirectly, acquire, offer to
acquire, or agree to acquire, by purchase or otherwise,
Beneficial Ownership of any Sprint Voting Securities if such
acquisition would result in Buyer or Parent or any of their
respective Affiliates being deemed an Acquiring Person (as such
term is defined in the Sprint Rights Plan) 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 Sprint Rights Plan).
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ARTICLE 3.
OTHER STANDSTILL PROVISIONS; QUORUM
Section 3.1. Standstill Covenants. Each of Buyer and Parent
agrees that it will not, and it will cause each of its respective
Affiliates and Associates not to, directly or indirectly, alone
or in concert with others (including with any of FT, DT, any
Qualified Subsidiary, any other Qualified Stock Purchaser or any
Related Company or any of their respective Affiliates), unless
specifically requested in writing by the Chairman of Sprint or by
a resolution of a majority of the directors of Sprint, take any
of the actions set forth below, except to the extent expressly
permitted or provided for by the Amended Other Agreements:
(a) effect, seek, offer, propose (whether publicly or
otherwise) or cause or participate in, or assist any other Person
to effect, seek, offer or propose (whether publicly or otherwise)
or participate in:
(i) any acquisition of Beneficial Ownership of Sprint
Voting Securities or other equity interests in Sprint
which would result in a breach of Article 2 of this
Agreement;
(ii) any tender or exchange offer, merger, consolidation,
share exchange or business combination involving
Sprint or any material portion of its business or any
purchase of all or any substantial part of the assets
of Sprint or any material portion of its business;
(iii) any recapitalization, restructuring, liquidation,
dissolution or other extraordinary transaction with
respect to Sprint or any material portion of its
business; or
(iv) any "solicitation" of "proxies" (as such terms are
used in the proxy rules of the SEC but without regard
to the exclusion set forth in Section 14a-1(l)(2)(iv)
from the definition of "solicitation") with respect to
Sprint or any of its Affiliates or any action
resulting in such Person becoming a "participant" in
any "election contest" (as such terms are used in the
proxy rules of the SEC) with respect to Sprint or any
of its Affiliates;
(b) propose any matter for submission to a vote of
stockholders of Sprint or any of its Affiliates; provided that
nothing in this Section 3.1(b) shall restrict the manner in which
the members of the Board of Directors of Sprint elected by the
holders of Class A Stock may (i) vote on any matter submitted to
such Board, or (ii) participate in deliberations or discussions
of such Board (including making suggestions and raising issues to
the Board, so long as such actions do not otherwise violate any
other provision of this Section 3.1 or Section 3.2) in their
capacity as members of such Board and in no other capacity,
including any capacity such persons serving as
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directors otherwise may have as a director, officer, employee,
agent or representative of any other Person, including any holder
of Class A Stock;
(c) form, join or participate in a Group with respect
to any Sprint Voting Securities (other than any Group whose
members consist solely of Buyer, Parent, any of their respective
Affiliates and Associates and any Qualified Subsidiaries);
(d) grant any proxy with respect to any Sprint Voting
Securities to any Person not designated by Sprint, except for
proxies granted to individuals who are officers, employees or
regular agents or advisors of Buyer who have received specific
instructions from Buyer as to the voting of such Sprint Voting
Securities with respect to the matter or matters for which the
proxy is granted;
(e) deposit any Sprint Voting Securities in a voting
trust or subject any Sprint Voting Securities to any arrangement
or agreement with respect to the voting of such Sprint Voting
Securities or other agreement having similar effect;
(f) execute any written stockholder consent with
respect to Sprint, except for written consents executed by such
Persons as holders of the Class A Stock in connection with (i)
the election of Class A Directors (as defined in the Articles),
(ii) the approval or disapproval of a Subject Event, Major
Issuance or Major Competitor Transaction (each as defined in the
Articles) during the period in which the holders of the Class A
Stock are entitled to exercise disapproval rights with respect to
such matter, (iii) any vote by the holders of Class A Common
Stock, Series 3 FON Stock, or Series 3 PCS Stock with respect to
which holders of each such class or series of stock is entitled
to vote separately as a class, or (iv) any vote by the holders of
the Class A Stock with respect to which such holders are entitled
to vote together as a single class;
(g) take any other action to seek to affect the
control of the management or Board of Directors of Sprint or any
of its Affiliates; provided that nothing in this Section 3.1(g)
shall restrict the manner in which the members of the Board of
Directors of Sprint elected by the holders of Class A Stock may
(i) vote on any matter submitted to such Board, or (ii)
participate in deliberations or discussions of such Board
(including making suggestions and raising issues to the Board, so
long as such actions do not otherwise violate any other provision
of this Section 3.1 or Section 3.2) in their capacity as members
of such Board and in no other capacity, including any capacity
such persons serving as directors otherwise may have as a
director, officer, employee, agent or representative of any other
Person, including any holder of Class A Stock;
(h) enter into any discussions, negotiations,
arrangements or understandings with any Person (including any of
FT, DT, any Qualified Subsidiary, any other Qualified Stock
Purchaser or any Related Company or any of their respective
Affiliates) other than Buyer, Parent, their Affiliates,
Associates and their respective directors, officers, employees,
agents or advisors with respect to any of the foregoing, or
advise, assist, encourage or seek to persuade others to take any
action with respect to any of the foregoing;
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(i) disclose to any Person (including any of FT, DT,
any Qualified Subsidiary, any other Qualified Stock Purchaser or
any Related Company or any of their respective Affiliates) other
than Buyer, Parent, their Affiliates, Associates and their
respective directors, officers, employees, agents or advisors any
intention, plan or arrangement inconsistent with the foregoing or
with the restrictions on transfer set forth in Article II of the
Stockholders' Agreement or form any such intention which would
result in Buyer, Parent or any of their respective Affiliates or
Associates being required to make any such disclosure in any
filing with a Governmental Authority or being required by
Applicable Law to make a public announcement with respect
thereto; or
(j) request Sprint or any of its Affiliates,
directors, officers, employees, representatives, advisors or
agents, directly or indirectly, to amend or waive in any material
respect this Agreement (including this Section 3.1(j)) or the
articles of incorporation or the bylaws of Sprint or any of its
Affiliates.
Section 3.2. Press Releases, Etc. by Buyer and Parent.
(a) Subject to Section 3.2(b), each of Buyer and
Parent may issue such press releases and make such other public
communications to the financial community and to its stockholders
and such other public statements made in the ordinary course
relating to its investment in Sprint, in each case as it
reasonably deems appropriate and customary. Prior to making any
such press release or other communication, Buyer and Parent will
use reasonable efforts to consult with Sprint in good faith
regarding the form and content of any such communication, and
Buyer and Parent will use reasonable efforts to coordinate any
such communication with any decisions reached by Sprint with
respect to disclosures relating to such matters.
(b) Notwithstanding the provisions of Section 3.2(a),
unless required by Applicable Law, neither Buyer nor Parent, nor
any of their respective Affiliates or Associates, may make any
press release, public announcement or other communication with
respect to any of the matters described in Sections 3.1(a),
3.1(b), 3.1(c), 3.1(g), 3.1(h) or 3.1(j) without the prior
written consent of the Chairman of Sprint or by a resolution of a
majority of the directors of Sprint. Nothing in this Section 3.2
shall permit Buyer or Parent to take any action which would
otherwise violate any provision contained in Section 3.1.
Section 3.3. Voting of Sprint Voting Securities. Except as
set forth in Sections 3.1(d), 3.1(e) and 3.1(f), nothing in
Section 3.1 shall restrict the manner in which Buyer, Parent and
their respective Affiliates may vote their Sprint Voting
Securities.
Section 3.4. Quorum. Each of Buyer and Parent shall use
reasonable efforts to ensure that they shall be present, and
shall use reasonable efforts to cause their respective Affiliates
and Associates owning Sprint Voting Securities to be present, in
each case, in person or by proxy, at all meetings of stockholders
of Sprint so that all Sprint Voting Securities Beneficially Owned
by
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Buyer and Parent and their respective Affiliates and Associates
shall be counted for purposes of determining the presence of a
quorum at such meeting.
Section 3.5. Notice of Proposals Regarding Acquisition
Transactions. Each of Buyer and Parent agrees that it will notify
Sprint promptly if any inquiries or proposals which Buyer or
Parent reasonably believes are of substance are received by, any
information is exchanged with respect to, or any negotiations or
substantive discussions are initiated or continued with, Buyer or
Parent or any of their respective Affiliates regarding any
Acquisition Proposal involving Sprint or any purchase of any of
the shares of capital stock of Sprint Beneficially Owned by
Buyer, Parent or any of their respective Affiliates pursuant to a
tender offer or exchange offer.
ARTICLE 4.
MISCELLANEOUS
Section 4.1. Termination. The provisions of this Agreement
shall terminate if Sprint proceeds with a transaction involving a
Change of Control following the process described in Section 4.1
of the Amended and Restated Stockholders' Agreement. Any
termination of this Agreement as provided herein shall be without
prejudice to the rights of any Party arising out of the breach by
any other Party of any provision of this Agreement.
Section 4.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:
Buyer: [Specify notice address]
Parent: [Specify notice address]
Sprint: 2330 Shawnee Mission Parkway
East Wing
Westwood, Kansas 66205
U.S.A.
Attention: General Counsel
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
King & Spalding
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
-▇▇-
▇.▇.▇.
▇▇▇▇▇▇▇▇▇: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, ▇▇▇.
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
The Parties shall promptly notify each other in the manner
provided in this Section 4.2 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.
Section 4.3. 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 4.4. Entire Agreement. This Agreement, including
the Exhibits attached hereto, embodies the entire agreement and
understanding of the Parties in respect of the subject matter
contained herein, provided that this provision shall not abrogate
any other written agreement between the Parties executed
simultaneously with this Agreement. This Agreement supersedes all
prior agreements and understandings between the Parties with
respect to such subject matter.
Section 4.5. 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 4.6. 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 4.7. 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
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OBLIGATIONS OR LIABILITIES UNDER OR ARISING OUT OF OR IN
CONNECTION WITH THIS AGREEMENT SHALL BE BROUGHT 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 CLAIMS FOR INTERIM RELIEF, COUNTERCLAIMS, 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 BUYER AND PARENT 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
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 BUYER AND PARENT IN THE MANNER
PROVIDED IN SECTION 5.2. BUYER AND PARENT 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 BUYER AND
PARENT 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 AGENT WITH THE SAME
EFFECT AS IF NAMED HEREIN IN PLACE OF CT CORPORATION SYSTEM. EACH
OF BUYER AND PARENT 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
BUYER AND PARENT EXPRESSLY ACKNOWLEDGES THAT THE FOREGOING WAIVER
IS
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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 PARTIES 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 BREACH HAS OCCURRED,
AND AGREES TO WAIVE ANY REQUIREMENT FOR THE SECURING OR POSTING
OF ANY BOND IN CONNECTION WITH SUCH REMEDY.
Section 4.8. Severability. The invalidity or unenforce-
ability 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 Applicable 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 4.9. Language. This Agreement has been concluded in
the English language and the original English version will govern
in the event of any inconsistency between such version and any
translation thereof.
Section 4.10. Counterparts. 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 4.11. Remedies. In addition to any other remedies
which may be available to Sprint (including any remedies which
Sprint may have at law or in equity):
(a) Each of Buyer and Parent agrees that Sprint shall
have no obligation to honor transfers of Sprint Voting Securities
or other equity interests in Sprint to Buyer, Parent or any of
their respective Affiliates or Associates which would cause any
of Buyer, Parent and their respective Affiliates or Associates to
Beneficially Own Sprint Voting Securities or other equity
interests in Sprint in violation of this Agreement, any such
transfers shall be void and of no effect, and Sprint shall be
entitled to instruct any transfer agent or agents for the equity
interests in Sprint to refuse to honor such transfers; and
-16-
(b) Buyer and Parent acknowledge the provisions set
forth in ARTICLE SIXTH, Section 2.5 of the Articles, ARTICLE
SIXTH, Section 8.5(b) of the Articles, and Section 3.5 and
Article VIII of the Amended and Restated Stockholders' Agreement
relating to the consequences of a breach of certain provisions of
this Agreement or any Qualified Subsidiary Standstill Agreement
or to the consequences of certain actions taken by a Government
Affiliate, Qualified Stock Purchaser, Strategic Investor or
Related Company.
-17-
IN WITNESS WHEREOF, Sprint, Buyer and Parent have caused
their respective duly authorized officers to execute this
Agreement as of the day and year first above written.
SPRINT CORPORATION
By:_________________________
Name:
Title:
[QUALIFIED STOCK PURCHASER]
By:_________________________
Name:
Title:
[PARENT]
By:_________________________
Name:
Title:
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