Exhibit 1.2
Sprint Corporation
. Shares/1/
PCS Common Stock--Series 1
($1.00 par value)
International Underwriting Agreement
London, England
. , 1999
UBS AG, acting through its division Warburg Dillon Read
Salomon Brothers International Limited
▇▇▇▇▇▇▇ ▇▇▇▇▇ International
▇▇▇▇▇▇▇▇▇, Lufkin & ▇▇▇▇▇▇▇▇ International
▇▇▇▇▇▇ Brothers International (Europe)
▇.▇. ▇▇▇▇▇▇ Securities Ltd.
As International Representatives of the several
International Underwriters,
c/o UBS AG, acting through its division Warburg Dillon Read
[address]
and
Salomon Brothers International Limited
Victoria Plaza
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇
Ladies and Gentlemen:
Sprint Corporation, a corporation organized under the laws of Kansas
(the "Company"), proposes to issue and sell to the several underwriters named in
Schedule I hereto (the "International Underwriters"), for whom you (the
"International Representatives") are acting as representatives, . shares of
PCS Common Stock--Series 1, $1.00 par value ("Common Stock"), of the Company
(said shares to be issued and sold by the Company being hereinafter called the
"International Underwritten Securities"). The Company also proposes to grant to
the International Underwriters an option to purchase up to . additional
shares of Common Stock to cover over-allotments (the "International Option
Securities" and, together with the International Underwritten Securities, the
"International Securities"). It is understood that the Company is concurrently
entering into a U.S. Underwriting Agreement dated the date hereof (the "U.S.
Underwriting
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/1/ Plus an option to purchase from the Company up to . additional
International Securities to cover over-allotments.
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Agreement" and, together with this International Underwriting Agreement, the
"Underwriting Agreements") providing for the sale by the Company
to the several U.S. Underwriters of an aggregate of . shares of Common Stock
(said shares to be sold by the Company pursuant to the U.S. Underwriting
Agreement being hereinafter called the "U.S. Underwritten Securities") and
providing for the grant to the U.S. Underwriters of an option to purchase from
the Company up to . additional shares of Common Stock (the "U.S. Option
Securities"). It is further understood and agreed that the International
Underwriters and the U.S. Underwriters have entered into an Agreement Between
U.S. Underwriters and International Underwriters dated the date hereof (the
"Agreement Between U.S. Underwriters and International Underwriters"), pursuant
to which, among other things, the International Underwriters may purchase from
the U.S. Underwriters a portion of the U.S. Securities to be sold pursuant to
the U.S. Underwriting Agreement and the U.S. Underwriters may purchase from the
International Underwriters a portion of the International Securities to be sold
pursuant to this International Underwriting Agreement. To the extent there are
no additional International Underwriters listed on Schedule I other than you,
the term International Representatives as used herein shall mean you, as
International Underwriters, and the terms International Representatives and
International Underwriters shall mean either the singular or plural as the
context requires. The use of the neuter in this International Underwriting
Agreement shall include the feminine and masculine wherever appropriate. Any
reference herein to the Registration Statement, any Preliminary Prospectuses or
the Prospectuses shall be deemed to refer to and include the documents
incorporated by reference therein pursuant to Item 12 of Form S-3 which were
filed under the Exchange Act on or before the Effective Date of the Registration
Statement or the issue date of such Preliminary Prospectuses or the
Prospectuses, as the case may be; and any reference herein to the terms "amend",
"amendment" or "supplement" with respect to the Registration Statement, any
Preliminary Prospectuses or the Prospectuses shall be deemed to refer to and
include the filing of any document under the Exchange Act after the Effective
Date of the Registration Statement or the issue date of any Preliminary
Prospectuses or the Prospectuses, as the case may be, deemed to be incorporated
therein by reference. Certain terms used in this International Underwriting
Agreement are defined in Section 19.
1. Representations and Warranties.
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(i) The Company represents and warrants to, and agrees with, each
International Underwriter as set forth below in this Section 1.
(a) The Company meets the requirements for use of Form S-3 under the
Act for purposes of the Registration Statement and has prepared and filed
with the Commission a registration statement (file number 333-64241) on
Form S-3, including related preliminary prospectuses, for registration
under the Act of the offering and sale of the Securities. The Company may
have filed one or more amendments thereto, and may have used preliminary
prospectuses, each of which has previously been furnished to you. The
Company will next file with the Commission one of the following: either (1)
prior to the Effective Date of such registration statement, a further
amendment to such registration statement (including the form of final
prospectuses) or (2) after the Effective Date of such registration
statement, the Prospectuses in accordance with Rules 430A and 424(b). In
the case of clause (2), the Company has included in such registration
statement, as amended at the Effective Date, all information (other than
Rule 430A Information) required by the Act and the rules thereunder to be
included in such
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registration statement and the Prospectuses. As filed, such amendment and
form of final prospectuses, or such registration statement and
Prospectuses, shall contain or be deemed to contain information (including,
in the case of clause (2), Rule 430A Information) required by the Act and
the rules thereunder to be included in such registration statement and
Prospectuses, and, except to the extent the International Representatives
shall agree in writing to a modification, shall be in all substantive
respects in the form furnished to you prior to the Execution Time or, to
the extent not completed at the Execution Time, shall contain only such
specific additional information and other changes (beyond that contained in
the latest Preliminary Prospectuses) as the Company has advised you, prior
to the Execution Time, will be included or made therein.
It is understood that two forms of prospectuses are to be used in
connection with the offering and sale of the Securities: one form of
prospectus relating to the U.S. Securities, which are to be offered and
sold to United States and Canadian Persons, and one form of prospectus
relating to the International Securities, which are to be offered and sold
to persons other than United States and Canadian Persons. The U.S.
Prospectus and the International Prospectus are identical except for the
outside front cover page and the outside back cover page.
(b) On the Effective Date, the Registration Statement did or will,
and when the Prospectuses are first filed (if required) in accordance with
Rule 424(b) and on the Closing Date (as defined herein) and on any date on
which Option Securities are purchased, if such date is not the Closing Date
(a "settlement date"), each Prospectus (and any supplements thereto) will,
comply in all material respects with the applicable requirements of the Act
and the Exchange Act and the respective rules thereunder; on the Effective
Date and at the Execution Time, the Registration Statement did not or will
not contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary in order to make
the statements therein not misleading; and, on the Effective Date, each
Prospectus, if not filed pursuant to Rule 424(b), will not, and on the date
of any filing pursuant to Rule 424(b) and on the Closing Date and any
settlement date, each Prospectus (together with any supplement thereto)
will not, include any untrue statement of a material fact or omit to state
a material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading;
provided, however, that the Company makes no representations or warranties
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as to the information contained in or omitted from the Registration
Statement or the Prospectuses (or any supplement thereto) in reliance upon
and in conformity with information furnished in writing to the Company by
or on behalf of any Underwriter through the Representatives specifically
for inclusion in the Registration Statement or the Prospectuses (or any
supplement thereto).
(c) Each of the Company and the PCS Companies has been duly
incorporated or otherwise organized and is validly existing as a
corporation, limited liability company, or partnership, as the case may be,
in good standing under the laws of the jurisdiction in which it is
chartered or organized with full corporate, limited liability company, or
partnership power and authority to own or lease, as the case may be, and to
operate its properties and conduct its business as described in the
Prospectuses, and is duly qualified to do business as a foreign
corporation, limited liability company, or partnership and is in good
standing under the laws of each jurisdiction where the nature of its
properties or the conduct of its business requires such
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qualification, except where the failure to so qualify does not have a
Material Adverse Effect.
(d) All the outstanding shares of capital stock or ownership
interests of each Material Subsidiary of the Company and PCS Company have
been duly and validly authorized and issued and are fully paid and
nonassessable, and, except as otherwise set forth or incorporated by
reference in the Prospectuses, all outstanding shares of capital stock or
ownership interests of such subsidiaries are owned by the Company either
directly or through wholly owned subsidiaries free and clear of any
perfected security interest or any other security interests, claims, liens
or encumbrances.
(e) The Company's authorized equity capitalization is as set forth in
the Prospectuses; the capital stock of the Company which is described in
the Prospectuses conforms in all material respects to the description
thereof contained in the Prospectuses; the outstanding shares of Common
Stock have been duly and validly authorized and issued and are fully paid
and nonassessable; the Securities have been duly and validly authorized
and, when issued and delivered to and paid for by the U.S. Underwriters
pursuant to the U.S. Underwriting Agreement and by the International
Underwriters pursuant to the International Underwriting Agreement, will be
fully paid and nonassessable, the Securities are duly listed, and admitted
and authorized for trading, subject to official notice of issuance and
evidence of satisfactory distribution, on the New York Stock Exchange; the
certificates for the Securities are in valid and sufficient form; the
holders of outstanding shares of capital stock of the Company are not
entitled to preemptive or other rights to subscribe for the Securities;
and, except as set forth in the Prospectuses, no options, warrants or other
rights to purchase, agreements or other obligations to issue, or rights to
convert any obligations into or exchange any securities for, shares of
capital stock of or ownership interests in the Company or the PCS Companies
are outstanding.
(f) There is no franchise, contract or other document or any legal or
governmental proceedings of a character required to be described in the
Registration Statement or the Prospectuses, or to be filed as an exhibit
thereto, which is not described or filed as required; and the statements in
the Prospectuses under the headings "Certain Federal Income Tax
Consequences", "Business of the PCS Group--Regulation" and "--Legal
Proceedings" fairly summarize the matters therein described.
(g) Each of the U.S. Underwriting Agreement and this International
Underwriting Agreement has been duly authorized, executed and delivered by
the Company and constitutes a valid and binding obligation of the Company
enforceable in accordance with its terms.
(h) The Company is not and, after giving effect to the offering and
sale of the Securities and the application of the proceeds thereof as
described in the Prospectuses, will not be an "investment company" as
defined in the Investment Company Act of 1940, as amended.
(i) No consent, approval, authorization, filing with or order of any
court or governmental agency or body is required in connection with the
transactions contemplated in the Underwriting Agreements, except such as
have been obtained under the Act and such as may be required under the blue
sky or securities laws of
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any jurisdiction in connection with the purchase and distribution of the
Securities by the Underwriters in the manner contemplated in the
Underwriting Agreements and in the Prospectuses.
(j) Neither the issue and sale of the Securities hereunder and under
the U.S. Underwriting Agreement nor the consummation of any other of the
transactions herein or therein contemplated nor the fulfillment of the
terms hereof or thereof will conflict with, result in a breach or violation
or imposition of any lien, charge or encumbrance upon any property or
assets of the Company or any of its subsidiaries pursuant to, (i) the
charter or by-laws of the Company or any of its Material Subsidiaries, (ii)
the terms of any indenture, contract, lease, mortgage, deed of trust, note
agreement, loan agreement or other agreement, obligation, condition,
covenant or instrument to which the Company or any of its subsidiaries is a
party or bound or to which its or their property is subject or (iii) any
statute, law, rule, regulation, judgment, order or decree applicable to the
Company or any of its subsidiaries of any court, regulatory body,
administrative agency, governmental body, arbitrator or other authority
having jurisdiction over the Company or any of its subsidiaries or any of
their properties except, as to (ii) and (iii), for such conflicts,
breaches, violations or impositions that could not reasonably be expected
to have a Material Adverse Effect.
(k) No holder of securities of the Company has rights to the
registration of such securities under the Registration Statement.
(l) No action, suit or proceeding by or before any court or
governmental agency, authority or body or any arbitrator involving the
Company or any of its subsidiaries or its or their property is pending or,
to the best knowledge of the Company, threatened that (i) could reasonably
be expected to have a material adverse effect on the performance of this
International Underwriting Agreement or the U.S. Underwriting Agreement or
the consummation of any of the transactions contemplated hereby or thereby
or (ii) could reasonably be expected to have a material adverse effect on
the condition (financial or otherwise), prospects, earnings, business or
properties of the Company and its subsidiaries, taken as a whole, or the
PCS Group, whether or not arising from transactions in the ordinary course
of business, except, in the case of this clause (ii), as set forth in or
contemplated in the Prospectuses (exclusive of any supplement thereto).
(m) Neither the Company nor any of its Material Subsidiaries is in
violation or default of (i) any provision of its charter or bylaws, (ii)
the terms of any indenture, contract, lease, mortgage, deed of trust, note
agreement, loan agreement or other agreement, obligation, condition,
covenant or instrument to which it is a party or bound or to which its
property is subject, or (iii) any statute, law, rule, regulation, judgment,
order or decree of any court, regulatory body, administrative agency,
governmental body, arbitrator or other authority having jurisdiction over
the Company or such subsidiary or any of its properties, as applicable,
except in the case of clauses (ii) and (iii) of this paragraph, as could
not reasonably be expected to have a Material Adverse Effect.
(n) The Company and its subsidiaries possess all material licenses,
certificates, permits and other authorizations issued by the appropriate
federal, state or foreign regulatory authorities necessary to conduct their
respective businesses, and
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neither the Company nor any such subsidiary has received any notice of
proceedings relating to the revocation or modification of any such
certificate, authorization or permit which, singly or in the aggregate, if
the subject of an unfavorable decision, ruling or finding, would have a
material adverse effect on the condition (financial or otherwise),
prospects, earnings, business or properties of the Company and its
subsidiaries, taken as a whole, or the PCS Group, whether or not arising
from transactions in the ordinary course of business, except as set forth
in or contemplated in the Prospectuses (exclusive of any supplement
thereto).
(o) The Company has not taken, directly or indirectly, any action
designed to result, or which has constituted, or which might reasonably be
expected to cause or result, under the Exchange Act or otherwise, in,
stabilization or manipulation of the price of any security of the Company
to facilitate the sale or resale of the Secu rities.
Any certificate signed by any officer of the Company and delivered to
the Representatives or counsel for the Underwriters in connection with the
offering of the Securities shall be deemed a representation and warranty by
the Company, as to matters covered thereby, to each Underwriter.
2. Purchase and Sale. (a) Subject to the terms and conditions and
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in reliance upon the representations and warranties herein set forth, the
Company agrees to sell to each International Underwriter, and each International
Underwriter agrees, severally and not jointly, to purchase from the Company, at
a purchase price of $ . per share, the amount of the International
Underwritten Securities set forth opposite such International Underwriter's name
in Schedule I hereto.
(b) Subject to the terms and conditions and in reliance upon the
representations and warranties set forth herein, the Company hereby grants an
option to the several International Underwriters to purchase, severally and not
jointly, an aggregate of up to . International Option Securities
at the same purchase price per share as the International Underwriters shall pay
for the International Underwritten Securities. Said option may be exercised only
to cover over-allotments in the sale of the Underwritten Securities by the
Underwriters. Said option may be exercised in whole or in part at any time (but
not more than once) on or before the 30th day after the date of the
International Prospectus upon written or telegraphic notice by the International
Representatives to the Company setting forth the number of shares of the
International Option Securities as to which the several International
Underwriters are exercising the option and the settlement date. The number of
shares of International Option Securities to be purchased by each International
Underwriter shall be the same percentage of the total number of shares of the
International Option Securities to be purchased by the several International
Underwriters as such International Underwriter is purchasing of the
International Underwritten Securities, subject to such adjustments as you in
your absolute discretion shall make to eliminate any fractional shares.
3. Delivery and Payment. Delivery of and payment for the
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International Underwritten Securities and the International Option Securities
(if the option provided for in Section 2(b) hereof shall have been exercised on
or before the third Business Day prior to the Closing Date) shall be made at
10:00 AM, New York City time, on . , 1999, or at such time on such
later date not more than three Business Days after the foregoing date as the
U.S. Representatives and the International Representatives shall
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designate, which date and time may be postponed by agreement among the U.S.
Representatives, the International Representatives and the Company or as
provided in Section 9 hereof (such date and time of delivery and payment for the
International Securities being herein called the "Closing Date"). Delivery of
the International Securities shall be made to the International Representatives
for the respective accounts of the several International Underwriters against
payment by the several International Underwriters through the International
Representatives of the purchase price thereof to or upon the order of the
Company by wire transfer payable in same-day funds to an account specified by
the Company. Delivery of the International Underwritten Securities and the
International Option Securities shall be made through the facilities of The
Depository Trust Company unless the International Representatives shall
otherwise instruct.
If the option provided for in Section 2(b) hereof is exercised after
the third Business Day prior to the Closing Date, the Company will deliver the
International Option Securities (at the expense of the Company) to the
International Representatives, at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ on the
date specified by the International Representatives (which shall be at least
three Business Days after exercise of said option) for the respective accounts
of the several International Underwriters, against payment by the several
International Underwriters through the International Representatives of the
purchase price thereof to or upon the order of the Company by wire transfer
payable in same-day funds to an account specified by the Company. If settlement
for the International Option Securities occurs after the Closing Date, the
Company will deliver to the International Representatives on the settlement date
for the International Option Securities, and the obligation of the International
Underwriters to purchase the International Option Securities shall be
conditioned upon receipt of, supplemental opinions, certificates and letters
confirming as of such date the opinions, certificates and letters delivered on
the Closing Date pursuant to Section 6 hereof.
It is understood and agreed that the Closing Date shall occur
simultaneously with the "Closing Date" under the U.S. Underwriting Agreement,
and that the settlement date, if any, shall occur simultaneously with the
"settlement date" under the U.S. Underwriting Agreement.
4. Offering by Underwriters. It is understood that the several
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International Underwriters propose to offer the International Securities for
sale to the public as set forth in the International Prospectus.
5. Agreements.
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(i) The Company agrees with the several International Underwriters
that:
(a) The Company will use its best efforts to cause the Registration
Statement, if not effective at the Execution Time, and any amendment
thereof, to become effective. Prior to the termination of the offering of
the Securities, the Company will not file (other than, subject to Section
5(i)(f) hereof, the filing of any prospectus or preliminary prospectus
relating to an offering of Securities covered by this Agreement or the
filing of any document required to be filed under the Exchange Act that
upon filing is deemed to be incorporated by reference in the Registration
Statement or the Prospectuses) any amendment of the Registration Statement
or supplement to the Prospectuses or any Rule 462(b) Registration Statement
unless the Company has furnished you a copy for your review prior to
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filing and will not file any such proposed amendment or supplement to which
you reasonably object. During such time the Company will not file any
document required to be filed under the Exchange Act that upon filing is
deemed to be incorporated by reference in the Registration Statement or the
Prospectuses unless the Company has furnished to your counsel a copy for
their review and comment a reasonable amount of time prior to filing, which
comments the Company shall review in good faith. Subject to the foregoing
sentence, if the Registration Statement has become or becomes effective
pursuant to Rule 430A, or filing of the Prospectuses is otherwise required
under Rule 424(b), the Company will cause the Prospectuses, properly
completed, and any supplement thereto to be filed with the Commission
pursuant to the applicable paragraph of Rule 424(b) within the time period
prescribed and will provide evidence satisfactory to the International
Representatives of such timely filing. The Company will promptly advise the
International Representatives (1) when the Registration Statement, if not
effective at the Execution Time, shall have become effective, (2) when the
Prospectuses, and any supplement thereto, shall have been filed (if
required) with the Commission pursuant to Rule 424(b) or when any Rule
462(b) Registration Statement shall have been filed with the Commission,
(3) when, prior to termination of the offering of the Securities, any
amendment to the Registration Statement shall have been filed or become
effective, (4) of any request by the Commission or its staff for any
amendment of the Registration Statement, or any Rule 462(b) Registration
Statement, or for any supplement to the Prospectuses or for any additional
information, (5) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or the
institution or threatening of any proceeding for that purpose and (6) of
the receipt by the Company of any notification with respect to the
suspension of the qualification of the Securities for sale in any
jurisdiction or the institution or threatening of any proceeding for such
purpose. The Company will use its best efforts to prevent the issuance of
any such stop order or the suspension of any such qualification and, if
issued, to obtain as soon as possible the withdrawal thereof.
(b) If, at any time when a prospectus relating to the Securities is
required to be delivered under the Act, any event occurs as a result of
which either of the Prospectuses as then supplemented would include any
untrue statement of a material fact or omit to state any material fact
necessary to make the statements therein in the light of the circumstances
under which they were made not misleading, or if it shall be necessary to
amend the Registration Statement or supplement either of the Prospectuses
to comply with the applicable provisions of the Act or the Exchange Act or
the respective rules thereunder, the Company promptly will (1) notify the
International Representatives of any such event; (2) prepare and file with
the Commission, subject to the second and third sentences of paragraph
(i)(a) of this Section 5, an amendment or supplement which will correct
such statement or omission or effect such compliance; and (3) supply any
supplemented Prospectuses to you in such quantities as you may reasonably
request.
(c) As soon as practicable, the Company will make generally available
to its security holders and to the International Representatives an
earnings statement which will satisfy the provisions of Section 11(a) of
the Act and Rule 158 under the Act.
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(d) The Company will furnish to the International Representatives and
counsel for the International Underwriters copies of the signed
Registration Statement (including exhibits thereto) and to each other
International Underwriter a copy of the Registration Statement (without
exhibits thereto) and, so long as delivery of a prospectus by an
International Underwriter or dealer may be required by the Act, as many
copies of each International Preliminary Prospectus and the International
Prospectus and any supplement thereto as the International Representatives
may reasonably request.
(e) The Company will cooperate with you and with counsel for the
Underwriters in connection with the qualification of the Securities for
sale under the laws of such jurisdictions as the International
Representatives may designate and will take such actions as are necessary
to maintain such qualifications in effect so long as required for the
distribution of the International Securities; provided that in no event
shall the Company be obligated to qualify to do business in any
jurisdiction where it is not now so qualified or to take any action that
would subject it to service of process in suits, other than those arising
out of the offering or sale of the Securities, in any jurisdiction where it
is not now so subject.
(f) The Company will not, without the prior written consent of
Salomon Brothers International Limited or UBS AG, acting through its
division Warburg Dillon Read, for a period of 90 days following the
Execution Time, offer, sell, contract to sell, pledge or otherwise dispose
of (or enter into any transaction which is designed to result in the
disposition (whether by actual disposition or effective economic
disposition due to cash settlement or otherwise) by the Company or any
affiliate of the Company or any person in privity with the Company or any
affiliate of the Company) directly or indirectly, or register, cause to be
registered or announce the registration, offering or intended registration
or offering of, any other shares of PCS Stock or any securities convertible
into or exercisable or exchangeable for shares of PCS Stock, or grant any
options or warrants to purchase shares of PCS Stock, except (i) grants of
options to purchase PCS Stock and issuances of PCS Stock pursuant to any
employee or director benefit plan, including stock option and stock
purchase plans and registrations in connection with such grants or
issuances, (ii) issuances of PCS Stock pursuant to any dividend
reinvestment plan, (iii) issuances of PCS Stock upon conversion of
securities or exercise of warrants outstanding on the Closing Date which
are or become convertible into or exercisable for shares of PCS Stock, (iv)
issuances of PCS Stock in acquisitions or mergers, (v) registrations of
PCS Stock for, or issuances of PCS Stock to the Cable Parents, FT and DT in
connection with the Offerings or upon any exercise of their respective
Equity Purchase Rights or registration rights, (vi) issuances of PCS Stock
pursuant to Sprint's Rights Plan, and (vii) issuances, or registrations, of
shares of PCS Stock which are issuable to FT, DT or third parties in
respect of the shares of the Company's Class A Common Stock held by FT and
DT at the Execution Time.
(g) The Company will not take, directly or indirectly, any action
designed to result in or which has constituted, or which might reasonably
be expected to cause or result, under the Exchange Act or otherwise, in,
stabilization or manipulation of the price of any security of the Company
to facilitate the sale or resale of the Securities.
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(h) The Company agrees to pay the costs and expenses relating to the
following matters: (i) the preparation, printing or reproduction and
filing with the Commission of the Registration Statement (including
financial statements and exhibits thereto), each Preliminary Prospectus,
each Prospectus, and each amendment or supplement to any of them; (ii) the
printing (or reproduction) and delivery (including postage, air freight
charges and charges for counting and packaging) of such copies of the
Registration Statement, each Preliminary Prospectus, each Prospectus, and
all amendments or supplements to any of them, as may, in each case, be
reasonably requested for use in connection with the offering and sale of
the Securities; (iii) the preparation, printing, authentication, issuance
and delivery of certificates for the Securities, including any stamp or
transfer taxes in connection with the original issuance and sale of the
Securities; (iv) the printing (or reproduction) and delivery of the U.S.
Underwriting Agreement and this International Underwriting Agreement, any
blue sky memorandum and all other agreements or documents printed (or
reproduced) and delivered in connection with the offering of the
Securities; (v) the registration of the Securities under the Exchange Act
and the listing of the Securities on the New York Stock Exchange; (vi) any
registration or qualification of the Securities for offer and sale under
the securities or blue sky laws of the several states (including filing
fees and the reasonable fees and expenses of counsel for the Underwriters
relating to such registration and qualification); (vii) any filings
required to be made with the National Association of Securities Dealers,
Inc. (including filing fees and the reasonable fees and expenses of counsel
for the Underwriters relating to such filings); (viii) the transportation
and other expenses incurred by or on behalf of Company representatives but
not including representatives of the Underwriters in connection with
presentations to prospective purchasers of the Securities; (ix) the fees
and expenses of the Company's accountants and the fees and expenses of
counsel (including local and special counsel) for the Company; and (x) all
other costs and expenses incident to the performance by the Company of its
obligations under the Underwriting Agreements.
(i) The Company will use its best efforts to cause the Securities to
be listed on the New York Stock Exchange.
(ii) Each International Underwriter agrees that (a) it is not
purchasing any of the International Securities for the account of any United
States or Canadian Person, (b) it has not offered or sold, and will not offer or
sell, directly or indirectly, any of the International Securities or distribute
any International Prospectus to any person in the United States or Canada, or to
any United States or Canadian Person, and (c) any dealer to whom it may sell any
of the International Securities will represent that it is not purchasing for the
account of any United States or Canadian Person and agree that it will not offer
or resell, directly or indirectly, any of the International Securities in the
United States or Canada, or to any United States or Canadian Person or to any
other dealer who does not so represent and agree; provided, however, that the
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foregoing shall not restrict (1) purchases and sales between the International
Underwriters on the one hand and the U.S. Underwriters on the other hand
pursuant to the Agreement Between U.S. Underwriters and International
Underwriters, (2) stabilization transactions contemplated under the Agreement
Between U.S. Underwriters and International Underwriters, conducted through
Salomon Brothers International Limited and UBS AG, acting through its division
Warburg Dillon Read (or through the U.S. Representatives and International
11
Representatives) as part of the distribution of the Securities, and (3) sales to
or through (or distributions of International Prospectuses or International
Preliminary Prospectuses to) persons not United States or Canadian Persons who
are investment advisors, or who otherwise exercise investment discretion, and
who are [not] purchasing for the account of any United States or Canadian
Person.
(iii) The agreements of the International Underwriters set forth in
paragraph (ii) of this Section 5 shall terminate upon the earlier of the
following events:
(a) a mutual agreement of the U.S. Representatives and the
International Representatives to terminate the selling restrictions set
forth in paragraph (ii) of this Section 5 and in Section 5(ii) of the U.S.
Underwriting Agreement; or
(b) the expiration of a period of 30 days after the Closing Date,
unless (A) the International Representatives shall have given notice to the
Company and the U.S. Representatives that the distribution of the
International Securities by the International Underwriters has not yet been
completed, or (B) the U.S. Representatives shall have given notice to the
Company and the International Representatives that the distribution of the
U.S. Securities by the U.S. Underwriters has not yet been completed. If
such notice by the U.S. Representatives or the International
Representatives is given, the agreements set forth in such paragraph (ii)
shall survive until the earlier of (1) the event referred to in clause (a)
of this subsection (iii) or (2) the expiration of an additional period of
30 days from the date of any such notice.
(iv) Each International Underwriter severally represents and agrees
that:
(a) it has not offered or sold and, prior to the expiry of six months
from the Closing Date, will not offer or sell any International Securities
to persons in the United Kingdom except to persons whose ordinary
activities involve them in acquiring, holding, managing or disposing of
investments, (whether as principal or agent) for the purpose of their
businesses or otherwise in circumstances which have not resulted and will
not result in an offer to the public in the United Kingdom within the
meaning of the Public Offers of Securities Regulations 1995;
(b) it has complied and will comply with all applicable provisions of
the Financial Services ▇▇▇ ▇▇▇▇ with respect to anything done by it in
relation to the International Securities, in, from or otherwise involving
the United Kingdom; and
(c) it has only issued or passed on, and will only issue or pass on,
in the United Kingdom any document received by it in connection with the
issue of the International Securities to a person who is of a kind
described in Article 11(3) of the Financial Services ▇▇▇ ▇▇▇▇ (Investment
Advertisements) (Exemptions) Order 1996 (as amended), or a person to whom
the document may otherwise lawfully be issued or passed on.
6. Conditions to the Obligations of the International Underwriters.
----------------------------------------------------------------
The obligations of the International Underwriters to purchase the International
Underwritten Securities and the International Option Securities, as the case may
be, shall be subject to the accuracy of the representations and warranties on
the part of the Company contained herein as of the Execution Time and the
Closing Date, to the accuracy of the statements
12
of the Company made in any certificates pursuant to the provisions hereof, to
the performance by the Company of its obligations hereunder and to the following
additional conditions:
(a) If the Registration Statement has not become effective prior to
the Execution Time, unless the U.S. Representatives and the International
Representatives agree in writing to a later time, the Registration Statement
will become effective not later than (i) 6:00 PM New York City time on the date
of determination of the public offering price, if such determination occurred at
or prior to 3:00 PM New York City time on such date or (ii) 9:30 AM on the
Business Day following the day on which the public offering price was
determined, if such determination occurred after 3:00 PM New York City time on
such date; if filing of either of the Prospectuses, or any supplement thereto,
is required pursuant to Rule 424(b), the Prospectuses, and any such supplement,
will be filed in the manner and within the time period required by Rule 424(b);
and no stop order suspending the effectiveness of the Registration Statement
shall have been issued and no proceedings for that purpose shall have been
instituted or threatened.
(b) The Company shall have requested King & Spalding, counsel for the
Company, to have furnished to the Representatives its opinion, dated the Closing
Date and addressed to the Representatives, to the effect set forth in Section
6(b) of the U.S. Underwriting Agreement.
(c) The Company shall have requested ▇▇▇ ▇▇▇▇▇▇, Esq., in-house
counsel for the Company, to have furnished to the Representatives such counsel's
opinion, dated the Closing Date and addressed to the Representatives, to the
effect set forth in Section 6(c) of the U.S. Underwriting Agreement.
(d) The Representatives shall have received from Cravath, Swaine &
▇▇▇▇▇, counsel for the Underwriters, such opinion or opinions, dated the Closing
Date and addressed to the Representatives, with respect to the issuance and sale
of the Securities, the Registration Statement, the Prospectuses (together with
any supplement thereto) and other related matters as the Representatives may
reasonably require, and the Company shall have furnished to such counsel such
documents as they reasonably request for the purpose of enabling them to pass
upon such matters.
(e) The Company shall have furnished to the Representatives a
certificate of the Company, signed by an executive officer (meaning those
officers who file reports pursuant to Section 16(b) of the Exchange Act) and the
principal financial or accounting officer of the Company, dated the Closing
Date, to the effect set forth in Section 6(e) of the U.S. Underwriting
Agreement.
(f) The Company shall have requested Ernst & Young LLP to have
furnished to the Representatives letters, dated respectively as of the Execution
Time and as of the Closing Date, in form and substance satisfactory to the
Representatives, to the effect set forth in Section 6(f) of the U.S.
Underwriting Agreement.
(g) The Company shall have requested Deloitte & Touche LLP to have
furnished to the Representatives letters, dated respectively as of the Execution
Time and as of the Closing Date, in form and substance satisfactory to the
Representatives, to the effect of Section 6(g) of the U.S. Underwriting
Agreement.
13
(h) Subsequent to the Execution Time or, if earlier, the dates as of
which information is given in the Registration Statement (exclusive of any
amendment thereof) and the Prospectuses (exclusive of any supplement thereto),
there shall not have been (i) any change, increase or decrease specified in the
letter or letters referred to in paragraph (f) or (g) of this Section 6 or (ii)
any change, or any development involving a prospective change, in or affecting
the condition (financial or otherwise), earnings, business or properties of the
Company and its subsidiaries, taken as a whole, or the PCS Group, whether or not
arising from transactions in the ordinary course of business, except as set
forth in or contemplated in the Prospectuses (exclusive of any supplement
thereto) the effect of which, in any case referred to in clause (i) or (ii)
above, is, in the sole judgment of the International Representatives, so
material and adverse as to make it impractical or inadvisable to proceed with
the offering or delivery of the International Securities as contemplated by the
Registration Statement (exclusive of any amendment thereof) and the
International Prospectus (exclusive of any supplement thereto).
(i) Subsequent to the Execution Time, there shall not have been any
decrease in the rating of any of the Company's or Sprint Spectrum's debt
securities by any "nationally recognized statistical rating organization" (as
defined for purposes of Rule 436(g) under the Act) or any notice given of any
intended or potential decrease in any such rating or of a possible change in any
such rating that does not indicate the direction of the possible change.
(j) The Securities shall have been listed and admitted and authorized
for trading on the New York Stock Exchange, and satisfactory evidence of such
actions shall have been provided to the Representatives.
(k) At the Execution Time, the Company shall have furnished to the
Representatives a lock-up letter in form and substance satisfactory to the
International Representatives from each officer for purposes of Section 16 under
the Exchange Act and director of the Company and from each member of the
management of the PCS Group listed under the caption "Management of the PCS
Group" in the Prospectus addressed to the Representatives.
(l) The closing of the purchase of the International Underwritten
Securities pursuant to the International Underwriting Agreement shall occur
concurrently with the closing of the U.S. Underwritten Securities pursuant to
the U.S. Underwriting Agreement.
(m) Prior to the Closing Date, the Company shall have furnished to
the Representatives such further information, certificates and documents as the
Representatives may reasonably request.
If any of the conditions specified in this Section 6 shall not have
been fulfilled in all material respects when and as provided in this
International Underwriting Agreement, or if any of the opinions and certificates
mentioned above or elsewhere in this International Underwriting Agreement shall
not be in all material respects reasonably satisfactory in form and substance to
the International Representatives and counsel for the Underwriters, this
International Underwriting Agreement and all obligations of the International
Underwriters under this International Underwriting Agreement may be canceled at,
or at any time prior to, the Closing Date by the International Representatives.
Notice of such cancelation shall be given to the Company in writing or by
telephone or facsimile confirmed in writing.
14
The documents required to be delivered by this Section 6 shall be
delivered at the office of Cravath, Swaine & ▇▇▇▇▇, counsel for the
Underwriters, at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇,
on the Closing Date.
7. Reimbursement of International Underwriters' Expenses. If the
------------------------------------------------------
sale of the International Securities provided for in this International
Underwriting Agreement is not consummated because any condition to the
obligations of the International Underwriters set forth in Section 6 hereof is
not satisfied (unless Section 6(l) is not satisfied due to a default by a U.S.
Underwriter under Section 9 of the U.S. Underwriting Agreement), because of any
termination pursuant to Section 10 hereof or because of any refusal, inability
or failure on the part of the Company to perform any agreement in this
International Underwriting Agreement or comply with any provision hereof other
than by reason of a default by any of the International Underwriters or the
International Underwriters, the Company will reimburse the International
Underwriters severally through Salomon Brothers International Limited or UBS AG,
acting through its division Warburg Dillon Read, on demand for all out-of-pocket
expenses (including reasonable fees and disbursements of counsel) that shall
have been incurred by them in connection with the proposed purchase and sale of
the Securities.
8. Indemnification and Contribution. (a) The Company agrees to
---------------------------------
indemnify and hold harmless each International Underwriter, the directors,
officers, employees and agents of each International Underwriter and each person
who controls any International Underwriter within the meaning of either the Act
or the Exchange Act against any and all losses, claims, damages or liabilities,
joint or several, to which they or any of them may become subject under the Act,
the Exchange Act or other Federal or state statutory law or regulation, at
common law or otherwise, insofar as such losses, claims, damages or liabilities
(or actions in respect thereof) arise out of or are based upon any untrue
statement or alleged untrue statement of a material fact contained in the
Registration Statement as originally filed or in any amendment thereof, or in
any U.S. or International Preliminary Prospectus or in either of the
Prospectuses, or in any amendment thereof or supplement thereto, or arise out of
or are based upon the omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements therein
not misleading, and agrees to reimburse each such indemnified party, as
incurred, for any legal or other expenses reasonably incurred by them in
connection with investigating or defending any such loss, claim, damage,
liability or action; provided, however, that the Company will not be liable in
-------- -------
any such case to the extent that any such loss, claim, damage or liability
arises out of or is based upon any such untrue statement or alleged untrue
statement or omission or alleged omission made therein in reliance upon and in
conformity with written information furnished to the Company by or on behalf of
any Underwriter through the Representatives specifically for inclusion therein.
This indemnity agreement will be in addition to any liability which the Company
may otherwise have.
(b) Each International Underwriter severally and not jointly agrees
to indemnify and hold harmless the Company, each of its directors and officers,
and each person who controls the Company within the meaning of either the Act or
the Exchange Act, to the same extent as the foregoing indemnity from the Company
to each International Underwriter, but only with reference to written
information furnished to the Company by or on behalf of such International
Underwriter through the International Representatives specifically for inclusion
in the documents referred to in the foregoing indemnity. This indemnity
agreement will be in addition to any liability which any International
15
Underwriter may otherwise have. The Company acknowledges that the statements
set forth in the last paragraph of the cover page regarding delivery of the
International Securities, the legend in block capital letters on page 2 related
to stabilization, syndicate covering transactions and penalty bids and, under
the heading "Underwriting", (i) the list of International Underwriters and their
respective participations in the sale of the Securities, (ii) the description of
the Agreement between U.S. Underwriters and International Underwriters, (iii)
the paragraph related to offerings outside the United States by underwriters,
(iv) the sentence regarding sales in Canada, (v) the sentences related to
concessions and reallowances and (vi) the paragraph related to stabilization,
syndicate covering transactions and penalty bids in any U.S. or International
Preliminary Prospectus and the Prospectuses constitute the only information
furnished in writing by or on behalf of the several International Underwriters
for inclusion in any U.S. or International Preliminary Prospectus or the
Prospectuses.
(c) Promptly after receipt by an indemnified party under this Section
8 of notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under this
Section 8, notify the indemnifying party in writing of the commencement thereof;
but the failure so to notify the indemnifying party (i) will not relieve it from
liability under paragraph (a) or (b) above unless and to the extent it did not
otherwise learn of such action and such failure results in the forfeiture by the
indemnifying party of substantial rights and defenses and (ii) will not, in any
event, relieve the indemnifying party from any obligations to any indemnified
party other than the indemnification obligation provided in paragraph (a) or
(b) above. The indemnifying party shall be entitled to appoint counsel of the
indemnifying party's choice at the indemnifying party's expense to represent the
indemnified party in any action for which indemnification is sought (in which
case the indemnifying party shall not thereafter be responsible for the fees and
expenses of any separate counsel retained by the indemnified party or parties
except as set forth below); provided, however, that such counsel shall be
-------- -------
reasonably satisfactory to the indemnified party. Notwithstanding the
indemnifying party's election to appoint counsel to represent the indemnified
party in an action, the indemnified party shall have the right to employ one
separate counsel (plus local counsel), and the indemnifying party shall bear the
reasonable fees, costs and expenses of such separate counsel, if (i) the use of
counsel chosen by the indemnifying party to represent the indemnified party
would present such counsel with a conflict of interest, (ii) the actual or
potential defendants in, or targets of, any such action include both the
indemnified party and the indemnifying party and the indemnified party shall
have reasonably concluded that there may be legal defenses available to it which
are different from or additional to those available to the indemnifying party,
(iii) the indemnifying party shall not have employed counsel satisfactory to the
indemnified party to represent the indemnified party within a reasonable time
after notice of the institution of such action or (iv) the indemnifying party
shall authorize the indemnified party to employ separate counsel at the expense
of the indemnifying party. An indemnifying party will not, without the prior
written consent of the indemnified parties, settle or compromise or consent to
the entry of any judgment with respect to any pending or threatened claim,
action, suit or proceeding in respect of which indemnification or contribution
may be sought under this International Underwriting Agreement (whether or not
the indemnified parties are actual or potential parties to such claim or action)
unless such settlement, compromise or consent includes an unconditional release
of each indemnified party from all liability arising out of such claim, action,
suit or proceeding.
16
(d) In the event that the indemnity provided in paragraph (a) or (b)
of this Section 8 is unavailable to or insufficient to hold harmless an
indemnified party for any reason, the Company, and the International
Underwriters severally, agree to contribute to the aggregate losses, claims,
damages and liabilities (including legal or other expenses reasonably incurred
in connection with investigating or defending same) (collectively "Losses") to
which the Company and one or more of the International Underwriters may be
subject in such proportion as is appropriate to reflect the relative benefits
received by the Company on the one hand and by the International Underwriters on
the other from the offering of the International Securities. If the allocation
provided by the immediately preceding sentence is unavailable for any reason,
the Company and the International Underwriters severally shall contribute in
such proportion as is appropriate to reflect not only such relative benefits but
also the relative fault of the Company on the one hand and of the International
Underwriters on the other in connection with the statements or omissions which
resulted in such Losses as well as any other relevant equitable considerations.
Benefits received by the Company shall be deemed to be equal to the total net
proceeds from the offering (before deducting expenses) received by it, and
benefits received by the International Underwriters shall be deemed to be equal
to the total underwriting discounts and commissions, in each case as set forth
on the cover page of the International Prospectus. Relative fault shall be
determined by reference to, among other things, whether any untrue or any
alleged untrue statement of a material fact or the omission or alleged omission
to state a material fact relates to information provided by the Company on the
one hand or the International Underwriters on the other, the intent of the
parties and their relative knowledge, access to information and opportunity to
correct or prevent such untrue statement or omission. The Company and the
International Underwriters agree that it would not be just and equitable if
contribution were determined by pro rata allocation or any other method of
allocation which does not take account of the equitable considerations referred
to above. Notwithstanding the provisions of this paragraph (d), no person
guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of
the Act) shall be entitled to contribution from any person who was not guilty of
such fraudulent misrepresentation. For purposes of this Section 8, each person
who controls a International Underwriter within the meaning of either the Act or
the Exchange Act and each director, officer, employee and agent of a
International Underwriter shall have the same rights to contribution as such
International Underwriter, and each person who controls the Company within the
meaning of either the Act or the Exchange Act, each officer of the Company and
each director of the Company shall have the same rights to contribution as the
Company, subject in each case to the applicable terms and conditions of this
paragraph (d).
9. Default by a International Underwriter. If any one or more
---------------------------------------
International Underwriters shall fail to purchase and pay for any of the
International Securities agreed to be purchased by such International
Underwriter or International Underwriters under this International Underwriting
Agreement and such failure to purchase shall constitute a default in the
performance of its or their obligations under this International Underwriting
Agreement, the remaining International Underwriters shall be obligated severally
to take up and pay for (in the respective proportions which the amount of
International Securities set forth opposite their names in Schedule I hereto
bears to the aggregate amount of International Securities set forth opposite the
names of all the remaining International Underwriters) the International
Securities which the defaulting International Underwriter or International
Underwriters agreed but failed to purchase; provided, however, that in the event
-------- -------
that the aggregate amount of International Securities which the defaulting
International Underwriter or International Underwriters agreed but failed to
purchase shall
17
exceed 10% of the aggregate amount of International Securities
set forth in Schedule I hereto, the remaining International Underwriters shall
have the right to purchase all, but shall not be under any obligation to
purchase any, of the International Securities, and if such nondefaulting
International Underwriters do not purchase all the International Securi ties,
this International Underwriting Agreement will terminate without liability to
any nondefaulting International Underwriter or the Company. In the event of a
default by any International Underwriter as set forth in this Section 9, the
Closing Date shall be postponed for such period, not exceeding five Business
Days, as the International Representatives shall determine in order that the
required changes in the Registration Statement and the Prospectuses or in any
other documents or arrangements may be effected. Nothing contained in this
International Underwriting Agreement shall relieve any defaulting International
Underwriter of its liability, if any, to the Company and any nondefaulting
International Underwriter for damages occasioned by its default under this
International Underwriting Agreement.
10. Termination. This International Underwriting Agreement shall be
------------
subject to termination in the absolute discretion of the International
Representatives, by notice given to the Company prior to delivery of and payment
for the International Securities, if at any time prior to such time (i) trading
in any class of the Company's capital stock shall have been suspended by the
Commission or the New York Stock Exchange or trading in securities generally on
the New York Stock Exchange shall have been suspended or limited or minimum
prices shall have been established on the New York Stock Exchange, (ii) a
banking moratorium shall have been declared either by Federal or New York State
authorities or (iii) there shall have occurred any outbreak or escalation of
hostilities, declaration by the United States of a national emergency or war, or
other calamity or crisis the effect of which on financial markets is such as to
make it, in the sole judgment of the International Representatives, impractical
or inadvisable to proceed with the offering or delivery of the International
Securities as contemplated by the International Prospectus (exclusive of any
supplement thereto).
11. Representations and Indemnities to Survive. The respective
-------------------------------------------
agreements, representations, warranties, indemnities and other statements of the
Company or its officers and of the International Underwriters set forth in or
made pursuant to this International Underwriting Agreement will remain in full
force and effect, regardless of any investigation made by or on behalf of any
International Underwriter or the Company or any of the officers, directors or
controlling persons referred to in Section 8 hereof, and will survive delivery
of and payment for the International Securities. The provisions of Sections 7
and 8 hereof shall survive the termination or cancelation of this International
Underwriting Agreement.
12. Notices. All communications under this International
--------
Underwriting Agreement will be in writing and effective only on receipt, and, if
sent to the International Representatives, will be mailed, delivered or
telefaxed to the Salomon Brothers International Limited General Counsel (fax no.
[ ]), and the UBS AG, acting through its division Warburg Dillon Read,
General Counsel (fax no. [ ] and confirmed to such General Counsel at
Salomon Brothers International Limited, Victoria Plaza, 111 Buckingham Palace
Road, London SW1W OSB England, Attention: General Counsel and at UBS AG, acting
through its division Warburg Dillon Read, [ ], Attention: General
Counsel]; or, if sent to the Company, will be mailed, delivered or tele faxed
to Sprint Corporation (fax no. (▇▇▇) ▇▇▇-▇▇▇▇) and confirmed to it at ▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇, ▇▇▇▇▇, attention of the Legal Department.
18
13. Successors. This International Underwriting Agreement will inure
-----------
to the benefit of and be binding upon the parties hereto and their respective
successors and the officers and directors and controlling persons referred to in
Section 8 hereof, and no other person will have any right or obligation under
this International Underwriting Agreement.
14. Applicable Law. This International Underwriting Agreement will
---------------
be governed by and construed in accordance with the laws of the State of New
York applicable to contracts made and to be performed within the State of New
York, without regard to the choice of law principles of any jurisdiction.
15. Counterparts. This International Underwriting Agreement may be
------------
signed in one or more counterparts, each of which shall constitute an original
and all of which together shall constitute one and the same agreement.
16. Headings. The section headings used in this International
---------
Underwriting Agreement are for convenience only and shall not affect the
construction hereof.
17. Third-Party Lock-Up Agreements. (a) The Company agrees to (i)
------------------------------
(A) take promptly any actions requested by the Representatives necessary to
enforce its rights under the Lock-Up Agreements and (B) not waive any right
granted to it under or amend or otherwise modify any provision of the Lock-Up
Agreements (unless the Representatives consent in writing to such waiver,
amendment or modification) and (ii) promptly notify the Representatives by
telephone (followed by written notice) if the Company becomes aware that a Cable
Parent, FT or DT has taken or proposes to take any action which violates or may
violate its Lock-Up Agreement.
(b) (i) Subject to the provisions of paragraph (b)(ii), the
International Underwriters, severally and not jointly, shall indemnify and hold
harmless the Company and its directors, officers, employees and agents from and
against any loss, claim, damage, liability or expense, joint or several, or any
action in respect thereof to which the they or any of them may become subject
insofar as such loss, claim, damage, liability, expense or action arises out of
or is based on the Company taking or refraining from taking any action required
by paragraph (a) of this section. The International Underwriters shall be
entitled to appoint counsel of their choice at their expense to represent the
indemnified party in any action for which indemnification is sought (in which
case the International Underwriters shall not thereafter be responsible for the
fees and expenses of any separate counsel retained by the indemnified party or
parties). No indemnified party will, without the prior consent of the
International Underwriters (which consent will not be unreasonably withheld),
settle or compromise or consent to the entry of any judgment with respect to any
pending or threatened claim, action, suit or proceeding in respect of which
indemnification may be sought under this section (whether or not the indemnified
parties are actual or potential parties to such claim, action, suit or
proceeding).
(ii) If and to the extent it is finally determined that any loss,
claim, damage, liability, expense or action that is otherwise the subject of
paragraph (b)(i) would not have arisen or been incurred had the Underwriters
been party to a Lock-Up Agreement (in lieu of the Company) and exercising solely
their own rights thereunder, the Underwriters shall have no obligation under
paragraph (i) and the Company shall instead indemnify and hold harmless each
Underwriter, the directors, officers, employees and agents of each Underwriter
and each person who controls any Underwriter within the meaning of either
19
the Act or the Exchange Act from and against such loss, claim, damage, liability
or expense, joint or several, or action in respect thereof to which they may
become subject on the terms set forth in paragraph (i).
(iii) The determination contemplated by paragraph (ii) shall be made
by binding arbitration, upon demand by the Representatives or the Company.
Arbitration shall be conducted under and governed by the Commercial Financial
Disputes Arbitration Rules (the "Arbitration Rules") of the American Arbitration
Association and Title 9 of the U.S. Code. All arbitration hearings shall be
conducted in New York, New York. Notwithstanding anything foregoing to the
contrary, any arbitration proceeding demanded hereunder shall begin within 60
days after such demand thereof and shall be concluded within 90 days after such
demand. These time limitations may not be extended unless a party hereto shows
cause for extension and then such extension shall not exceed a total of 30 days.
The panel from which all arbitrators are selected shall be comprised of licensed
attorneys. The parties hereto do not waive any applicable Federal or state
substantive law except as provided herein.
(iv) In the event the parties cannot agree on the extent to which a
loss, claim, damage, liability, expense or action would not have arisen or
incurred had the Representatives been party to a Lock-Up Agreement (in lieu of
the Company) and exercising solely their own rights thereunder, then pending the
determination of such issue by arbitration pursuant to paragraph (iii), the
Underwriters will continue to indemnify and hold harmless the Company and other
indemnified parties pursuant to paragraph (i). If it shall subsequently be
determined that the Company was not entitled to indemnification by reason of
paragraph (ii), it shall refund all amounts previously received by it or any
other indemnified party and promptly perform its obligations under paragraph
(ii).
18. Miscellaneous. [Warburg Dillon Read, an indirect, wholly owned
subsidiary of UBS AG, is not a bank and is separate from any affiliated bank,
including any branch or agency of UBS AG. Because Warburg Dillon Read is a
separately incorporated entity, it is solely responsible for its own contractual
obligations and commitments, including obligations with respect to sales and
purchases of securities. Securities sold, offered or recommended by Warburg
Dillon Read are not deposits, are not guaranteed by a branch or agency, and are
not otherwise an obligation or responsibility of a branch or agency.]
[A lending affiliate of Warburg Dillon Read may have lending
relationships with issuers of securities underwritten or privately placed by
Warburg Dillon Read. To the extent required under the securities laws,
prospectus and other disclosure documents for securities underwritten or
privately placed by Warburg Dillon Read will disclose the existence of any such
lending relationships and whether the proceeds of the issue will be used to
repay debts owed to affiliates of Warburg Dillon Read.]
[Without the Company's prior written approval, the branches and
agencies of UBS AG will not share with Warburg Dillon Read any non-public
information concerning the Company, and Warburg Dillon Read will not share any
non-public information received from the Company with any of such branches and
agencies of UBS AG.]
19. Definitions. The terms which follow, when used in this
------------
International Underwriting Agreement, shall have the meanings indicated.
20
"Act" shall mean the Securities Act of 1933, as amended, and the rules
and regulations of the Commission promulgated thereunder.
"Business Day" shall mean any day other than a Saturday, a Sunday or a
legal holiday or a day on which banking institutions or trust companies are
authorized or obligated by law to close in New York City.
"Cable Parents" shall mean, collectively, Tele-Communications, Inc.,
Comcast Corporation and ▇▇▇ Communications, Inc.
"Closing Date" shall mean the date referred to in Section 3 hereof.
"Commission" shall mean the Securities and Exchange Commission.
"DT" shall mean Deutsche Telekom AG.
"Effective Date" shall mean each date and time that the Registration
State ment, any post-effective amendment or amendments thereto and any
Rule 462(b) Registration Statement became or become effective.
"Equity Purchase Rights" shall have the meaning assigned thereto in
the Proxy Statement.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the Commission promulgated
thereunder.
"Execution Time" shall mean the date and time that this International
Underwriting Agreement is executed and delivered by the parties hereto.
"FT" shall mean France Telecom S.A.
"International Preliminary Prospectus" shall have the meaning set
forth under "U.S. Preliminary Prospectus".
"International Prospectus" shall mean such form of prospectus relating
to the International Securities as first filed pursuant to Rule 424(b)
after the Execution Time or, if no filing pursuant to Rule 424(b) is made,
such form of prospectus included in the Registration Statement at the
Effective Date.
"International Representative" shall mean the addressees of this
International Underwriting Agreement.
"International Securities" shall mean the International Underwritten
Securities and the International Option Securities.
"International Underwriters" shall mean the several underwriters named
in Schedule I to the International Underwriting Agreement.
21
"International Underwriting Agreement" shall mean this agreement
relating to the sale of the International Securities by the Company to the
International Underwriters.
"Lock-Up Agreements" means the agreements by the Cable Parents and FT
and DT to refrain from selling or distributing PCS Stock and certain other
securities, as more fully set forth in Section 6.2(c) of the Restructuring
Agreement and Section 5.2(d) of the Master Agreement, respectively.
"Material Adverse Effect" shall mean a material adverse effect on (i)
the condition (financial or otherwise), prospects, earnings, business or
properties of the Company and its subsidiaries, taken as a whole or (ii)
the Company's ability to perform the transactions contemplated by this
Agreement.
"Material Subsidiary" shall mean any subsidiary of the Company that
would be a "significant subsidiary" of the Company within the meaning of
Rule 1-02 under Regulation S-X promulgated by the Commission, substituting
five percent for 10 percent in the conditions specified therein and
substituting "proportionate share of the total net revenue (after
intercompany eliminations)" for "equity in the income from continuing
operations before income taxes, extraordinary items and cumulative effect
of a change in accounting principle" and "such revenue" for "such income"
in clause (3) of such definition.
"Option Securities" shall mean the U.S. Option Securities and the
International Option Securities.
"PCS Companies" shall mean, collectively, Sprint Spectrum Holding
Company L.P., American PCS, L.P., MinorCo L.P., PhillieCo Partners I, L.P.,
PhillieCo Partners II, L.P., ▇▇▇ Communications PCS, L.P., SprintCom Inc.
and SprintCom Equipment Company L.P.
"PCS Group" shall have the meaning assigned thereto in the Proxy
Statement.
"PCS Restructuring" shall have the meaning assigned thereto in the
Proxy Statement.
"PCS Stock" shall mean, collectively, PCS Common Stock -- Series 1,
PCS Common Stock -- Series 2, PCS Common Stock -- Series 3 and any other
class or series of common stock that may be issued by the Company which is
intended to reflect separately the performance of the PCS Companies.
"Preliminary Prospectus" shall have the meaning set forth under "U.S.
Preliminary Prospectus" and "International Preliminary Prospectus".
"Prospectuses" and "each Prospectus" shall mean the U.S. Prospectus
and the International Prospectus.
"Proxy Statement" shall mean the Company's Proxy Statement/Prospectus
dated October 5, 1998 that forms a part of Registration Statement No. 333-
65173 on Form S-4.
22
"Recapitalization" shall have the meaning assigned thereto in the
Proxy Statement.
"Registration Statement" shall mean the registration statement
referred to in Section 1(i)(a) above, including exhibits and financial
statements, as amended at the Execution Time (or, if not effective at the
Execution Time, in the form in which it shall become effective) and, in the
event any post-effective amendment thereto or any Rule 462(b) Registration
Statement becomes effective prior to the Closing Date, shall also mean such
registration statement as so amended or such Rule 462(b) Registration
Statement, as the case may be. Such term shall include any Rule 430A
Information deemed to be included therein at the Effective Date as provided
by Rule 430A.
"Representatives" shall mean the U.S. Representatives and the
International Representatives.
"Restructuring Agreement" shall mean the Merger and Restructuring
Agreement dated as of May 26, 1998, among the Company, the Cable Parents
and various of their subsidiaries.
"Rule 424", "Rule 430A" and "Rule 462" refer to such rules under the
Act.
"Rule 430A Information" shall mean information with respect to the
Securities and the offering thereof permitted to be omitted from the
Registration Statement when it becomes effective pursuant to Rule 430A.
"Rule 462(b) Registration Statement" shall mean a registration
statement and any amendments thereto filed pursuant to Rule 462(b) relating
to the offering covered by the registration statement referred to in
Section 1(a)(i) above.
"Securities" shall mean the U.S. Securities and the International
Securities.
"Sprint Spectrum" shall mean, collectively, Sprint Spectrum Holding
Company, L.P., MinorCo L.P., PhillieCo Partners I, L.P. and PhillieCo
Partners II, L.P. and their respective subsidiaries.
"Underwriter" and "Underwriters" shall mean the U.S. Underwriters and
the International Underwriters.
"Underwriting Agreements" shall mean the U.S. Underwriting Agreement
and the International Underwriting Agreement.
"Underwritten Securities" shall mean the International Underwritten
Securities and the U.S. Underwritten Securities.
"U.S. Preliminary Prospectus" and the "International Preliminary
Prospectus", respectively, shall mean any preliminary prospectus with
respect to the offering of the U.S. Securities and the International
Securities, as the case may be, referred to in Section 1(i)(a) above and
any preliminary prospectus with respect to the offering of the U.S.
Securities and the International Securities, as the case may be, included
in the Registration Statement at the Effective Date that omits
23
Rule 430A Information; and the U.S. Preliminary Prospectus and the
International Preliminary Prospectus are herein collectively called the
"Preliminary Prospectuses".
"U.S. Prospectus" shall mean the prospectus relating to the U.S.
Securities that is first filed pursuant to Rule 424(b) after the Execution
Time or, if no filing pursuant to Rule 424(b) is required, shall mean the
form of final prospectus relating to the U.S. Securities included in the
Registration Statement at the Effective Date.
"U.S. Representatives" shall mean the addressees of the U.S.
Underwriting Agreement.
"U.S. Securities" shall mean the U.S. Underwritten Securities and the
U.S. Option Securities.
"U.S. Underwriters" shall mean the several underwriters named in
Schedule I to the U.S. Underwriting Agreement.
"U.S. Underwriting Agreement" shall mean the U.S. Underwriting
Agreement dated the date hereof relating to the sale of the U.S. Securities
by the Company to the U.S. Underwriters./2/
"United States or Canadian Person" shall mean any person who is a
national or resident of the United States or Canada, any corporation,
partnership, or other entity created or organized in or under the laws of
the United States or Canada or of any political subdivision thereof, or any
estate or trust the income of which is subject to United States or Canadian
Federal income taxation, regardless of its source (other than any non-
United States or non-Canadian branch of any United States or Canadian
Person), and shall include any United States or Canadian branch of a person
other than a United States or Canadian Person. "U.S." or "United States"
shall mean the United States of America (including the states thereof and
the District of Columbia), its territories, its possessions and other areas
subject to its jurisdiction.
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof, whereupon
this International Underwriting Agreement and your acceptance shall represent a
binding agreement between the Company and the several International
Underwriters.
Very truly yours,
Sprint Corporation
By:
------------------------------
Name:
Title:
------------------------
/2/
24
The foregoing Agreement is hereby
confirmed and accepted as of the
date first above written.
UBS AG, acting through its division Warburg Dillon Read
Salomon Brothers International Limited
▇▇▇▇▇▇▇ ▇▇▇▇▇ International
▇▇▇▇▇▇▇▇▇, Lufkin & ▇▇▇▇▇▇▇▇ International
▇▇▇▇▇▇ Brothers International (Europe)
▇.▇. ▇▇▇▇▇▇ Securities Ltd.
By: UBS AG, acting through its division Warburg Dillon Read
By: ............................
Name:
Title:
By: Salomon Brothers International Limited
By: ............................
Name:
Title:
For themselves and the other
several International Underwriters
named in Schedule I to the foregoing
Agreement.
SCHEDULE I
----------
Number of
Underwritten
Securities to be
Underwriters Purchased
------------ ---------
UBS AG, acting through its division Warburg Dillon
Read
Salomon Brothers International Limited
▇▇▇▇▇▇▇ ▇▇▇▇▇ International
▇▇▇▇▇▇▇▇▇, Lufkin & ▇▇▇▇▇▇▇▇ International
▇▇▇▇▇▇ Brothers International (Europe)
▇▇ ▇▇▇▇▇▇ Securities Ltd.
________
Total.....................................
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