SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange
Act of 1934
Date of Report (Date of earliest event reported) June 29, 1998
SPRINT CORPORATION
(Exact name of Registrant as specified in its charter)
Kansas 0-4721 48-0457967
(State of (Commission (I.R.S. Employer
Incorporation) File Number) Identification No.)
2330 Shawnee Mission Parkway, Westwood, Kansas 66205
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code (913) 624-3000
(Former name or former address, if changed since last report)
P. O. Box 11315, Kansas City, Missouri 64112
(Mailing address of principal executive offices)
Item 5. Other Events.
Adoption of Amended and Restated Shareholder Rights Plan
On June 29, 1998, the Board of Directors of Sprint
Corporation ("Sprint") approved an Amended and Restated Rights
Agreement (the "Amended and Restated Rights Agreement") between
Sprint and UMB Bank, n.a., as Rights Agent. The adoption of the
existing Rights Agreement was reported in Sprint's Current Report
on Form 8-K dated June 9, 1997. The Amended and Restated Rights
Agreement is to become effective only if the stockholders of
Sprint approve the proposal to restructure Sprint's wireless
operations (reported in Sprint's Current Report on Form 8-K dated
May 26, 1998). If the proposal is approved, the Amended and
Restated Rights Agreement would become effective at the time the
amendment to the Articles of Incorporation of Sprint creating the
Sprint PCS Stock is filed with the Kansas Secretary of State.
The Amended and Restated Rights Agreement will amend the
existing Rights that are currently attached to Sprint Common
Stock to be FON Group Rights. Following the restructuring of the
wireless operations and prior to the recapitalization of Sprint
Common Stock into one share of Sprint FON Stock and one-half of a
share of Sprint PCS Stock (the "Recapitalization"), a FON Group
Right will be issued in connection with the issuance of shares of
Sprint Common Stock and, if issued, shares of Series 2 Common
Stock. After the Recapitalization, a FON Group Right will be
issued in connection with the issuance of shares of all series of
Sprint FON Stock. The Amended and Restated Rights Agreement will
also create new PCS Group Rights which will be issued in
connection with the issuance of shares of all series of Sprint
PCS Stock. Finally, the Amended and Restated Rights Agreement
will amend the existing Rights that are attached to the Class A
Common Stock to be Old Class A Rights (attached to the Class A
Common Stock owned by France Telecom SA) and Series DT Rights
(attached to the Class A Common Stock owned by Deutsche Telekom
AG).
The FON Group Rights will be traded with the Sprint Common
Stock prior to the Recapitalization and with the Sprint FON Stock
after the Recapitalization, and the PCS Group Rights will be
traded with the Sprint PCS Stock. The Rights detach from the
Sprint FON Stock and the Sprint PCS Stock and become exercisable
only if, in a transaction not approved by the Sprint Board, a
person or entity (an "Acquiring Person") acquires voting
securities representing 15% or more of the voting power of Sprint
or announces a tender offer the consummation of which would
result in ownership by a person or group of voting securities
representing 15% or more of the voting power of Sprint.
Once the Rights detach and become exercisable, unless
subsequently redeemed, each FON Group Right then entitles its
holder to purchase one one-thousandth of a share of Preferred
Stock - Sixth Series for an exercise price of $350, if prior to
the Recapitalization, or $275, if after the Recapitalization,
subject in each case to certain adjustments. Once the Rights
detach and become exercisable, unless subsequently redeemed, each
PCS Group Right then entitles its holder to purchase one one-
thousandth of a share of Preferred Stock - Eighth Series for an
exercise price of $150, subject to certain adjustments. If the
Rights detach and become exercisable prior to the
Recapitalization, each Old Class A Right and Series DT Right
would entitle its holder to purchase one one-thousandth of a
share of Preferred Stock - Sixth Series for an exercise price of
$350. If after the Recapitalization, each Old Class A Right and
Series DT Right would entitle the holder to purchase one one-
thousandth of a share of Preferred Stock - Sixth Series for an
exercise price of $275 for each share of FON Common Stock
underlying each share of Old Class A Common Stock or Class A
Common Stock - Series DT, and one-half of one one-thousandth of a
share of Preferred Stock - Eighth Series for an exercise price of
$75 for each one-half of a share of PCS Common Stock underlying
each share of Old Class A Common Stock or Class a Common Stock -
Series DT, subject to certain adjustments.
A total of 1,500,000 shares of Preferred Stock - Sixth
Series have been authorized and reserved for issuance upon
exercise of the FON Group Rights, the Old Class A Rights and the
Series DT Rights, and a total of 1,250,000 shares of Preferred
Stock - Eighth Series have been authorized and reserved for
issuance upon exercise of the PCS Group Rights, the Old Class A
Rights and the Series DT Rights. Shares of Preferred Stock -
Sixth Series and Preferred Stock - Eighth Series that are issued
upon exercise of the Rights will not be redeemable.
Each share of Preferred Stock - Sixth Series will be
entitled to a minimum preferential quarterly dividend payment of
the greater of (a) $100.00 per share or (b) 1,000 times the
aggregate per share amount of all dividends (other than a
dividend payable in Sprint FON Stock) declared per share of
Sprint FON Stock. In the event of liquidation, the holders of
shares of Preferred Stock - Sixth Series will be entitled to the
greater of (a) a minimum preferential liquidation payment of
$1,000.00 per share, plus accrued dividends, or (b) 1,000 times
the aggregate amount to be distributed per share of Sprint FON
Stock. Each share of Preferred Stock - Sixth Series will have
1,000 votes, voting together with, and on the same matters as,
the Sprint FON Stock (excluding the special voting rights of the
Class A Common Stock). Finally, in the event of any merger,
consolidation or other transaction in which shares of Sprint FON
Stock are exchanged for or changed into other stock, securities,
cash and/or other property, each share of Preferred Stock - Sixth
Series will be entitled to receive 1,000 times the amount
received per share of Sprint FON Stock. These rights are
protected by customary anti-dilution provisions.
Each share of Preferred Stock - Eighth Series will be
entitled to a minimum preferential quarterly dividend payment of
the greater of (a) $100.00 per share or (b) 1,000 times the
aggregate per share amount of all dividends (other than a
dividend payable in Sprint PCS Stock) declared per share of
Sprint PCS Stock. In the event of liquidation, the holders of
shares of Preferred Stock - Eighth Series will be entitled to the
greater of (a) a minimum preferential liquidation payment of
$1,000.00 per share, plus accrued dividends, or (b) 1,000 times
the aggregate amount to be distributed per share of Sprint PCS
Stock. Each share of Preferred Stock - Eighth Series will have
1,000 times the highest vote per share of Sprint PCS Stock,
voting together with, and on the same matters as, the Sprint PCS
Stock (excluding the special voting rights of the Class A Common
Stock). Finally, in the event of any merger, consolidation or
other transaction in which shares of Sprint PCS Stock are
exchanged for or changed into other stock, securities, cash
and/or other property, each share of Preferred Stock - Eighth
Series will be entitled to receive 1,000 times the amount
received per share of Sprint PCS Stock. These rights are
protected by customary antidilution provisions.
Because of the nature of the dividend, liquidation and
voting rights, the value of one one-thousandth of a share of
Preferred Stock - Sixth Series should approximate the value of
one share of Sprint FON Stock and the value of one one-thousandth
of a share of Preferred Stock - Eighth Series should approximate
the value of one share of Sprint PCS Stock.
In the event that a person or group becomes the beneficial
owner of voting securities representing 15% or more of the voting
power of Sprint, except pursuant to a Qualifying Offer, each
holder of a FON Group Right and each holder of a PCS Group Right
will thereafter have the right to receive upon exercise of such
Right Sprint FON Stock and Sprint PCS Stock, respectively (or, in
certain circumstances, cash, property or other securities of
Sprint) having a value equal to two times the then current
exercise price of the Right and each holder of Old Class A Rights
or Series DT Rights will thereafter have the right to receive
upon exercise of such Right both Sprint FON Stock and Sprint PCS
Stock (or in certain circumstances, cash, property or other
securities of Sprint) each having a value equal to two times the
then current exercise prices of the Right for Preferred Stock -
Series Sixth and Preferred Stock Series Eighth, respectively. A
"Qualifying Offer" is an offer for outstanding shares of Common
Stock which a majority of the independent directors (i.e.,
directors who are not also officers of Sprint and who are not
representatives, nominees, affiliates or associates of an
Acquiring Person) determine, after receiving advice from one or
more investment banking firms, to be fair to the stockholders and
otherwise in the best interests of Sprint and its stockholders.
However, the Rights will not be exercisable following the
occurrence of the event specified in the first sentence of this
paragraph until such time as the Rights are no longer redeemable
by Sprint. Notwithstanding the foregoing, following the
occurrence of any such event, all Rights that are, or (under
certain circumstances specified in the Amended and Restated
Rights Agreement) were, beneficially owned by any Acquiring
Person (or certain related parties) will be null and void.
If Sprint is involved in a merger or other business
combination transaction after the Rights become exercisable, each
Right will entitle its holder to purchase, for the Right's
exercise price, a number of the acquiring or surviving company's
shares of common stock having a market value equal to twice the
exercise price or prices of the Rights. Sprint will be entitled
to redeem the Rights at $.01 per Right (subject to adjustment) at
any time until ten business days following a public announcement
that a person or group of persons has acquired beneficial
ownership of voting securities representing 15% or more of the
voting power of Sprint (or in excess of the shares permitted to
be acquired under the Amended and Restated Standstill Agreement,
in the case of France Telecom SA and Deutsche Telekom AG). The
terms of the Rights will expire on June 25, 2007, unless earlier
redeemed by Sprint or unless extended by amending the Amended and
Restated Rights Agreement.
The issuance of additional shares of Sprint FON Stock,
Sprint PCS Stock or Class A Common Stock prior to the time the
Rights become exercisable will result in an increase in the
number of Rights outstanding.
This summary description does not purport to be complete and
is qualified in its entirety by reference to the Amended and
Restated Rights Agreement and the exhibits thereto, filed
herewith as Exhibit 4.1, which is incorporated herein by
reference.
Item 7. Financial Statements, Pro Forma Financial Information
and Exhibits.
(c) Exhibits.
4.1 Form of Amended and Restated Rights Agreement
between Sprint Corporation and UMB Bank, n.a.,
as Rights Agent, which includes as Exhibit A-1,
the Amended and Restated Certificate of
Designation, Preferences and Rights of Preferred
Stock - Sixth Series, as Exhibit A-2, the
Certificate of Designation, Preferences and
Rights of Preferred Stock - Eighth Series, as
Exhibit B-1, the Form of FON Group Rights
Certificate, as Exhibit B-2, the Form of PCS
Group Rights Certificate, as Exhibit B-3, the
Form of Old Class A Rights Certificate, and as
Exhibit B-4, the Form of Series DT Rights
Certificate.
4.2 Form of Amended and Restated Standstill
Agreement by and among Sprint Corporation,
France Telecom SA and Deutsche Telekom AG.
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act
of 1934, the registrant has duly caused this report to be signed
on its behalf by the undersigned, hereunto duly authorized.
SPRINT CORPORATION
Date: July 9, 1998 By: /s/ Michael T. Hyde
Michael T. Hyde, Assistant
Secretary
EXHIBIT INDEX
Exhibit
Number Description Page
(c) Exhibits.
4.1 Form of Amended and Restated Rights Agreement
between Sprint Corporation and UMB Bank, n.a.,
as Rights Agent, which includes as Exhibit A-1,
the Amended and Restated Certificate of
Designation, Preferences and Rights of Preferred
Stock - Sixth Series, as Exhibit A-2, the
Certificate of Designation, Preferences and
Rights of Preferred Stock - Eighth Series, as
Exhibit B-1, the Form of FON Group Rights
Certificate, as Exhibit B-2, the Form of PCS
Group Rights Certificate, as Exhibit B-3, the
Form of Old Class A Rights Certificate, and as
Exhibit B-4, the Form of Series DT Rights
Certificate.
4.2 Form of Amended and Restated Standstill
Agreement by and among Sprint Corporation,
France Telecom SA and Deutsche Telekom AG.
Exhibit 4.1
SPRINT CORPORATION
and
UMB BANK, N.A.
Rights Agent
Amended and Restated
Rights Agreement
Dated as of __________, 1998
TABLE OF CONTENTS
Section Page
1. Certain Definitions 3
2. Appointment of Rights Agent 16
3. Issue of Rights Certificates 16
4. Form of Rights Certificates 19
5. Countersignature and Registration 20
6. Transfer, Split Up, Combination and Exchange of Rights
Certificates;
Mutilated, Destroyed, Lost or Stolen Rights Certificates 21
7. Exercise of Rights; Purchase Price; Expiration Date of
Rights 22
8. Cancellation and Destruction of Rights Certificates 25
9. Reservation and Availability of Capital Stock 25
10. Preferred Stock Record Date 27
11. Adjustment of Purchase Price, Number and Kind of
Shares or Number of Rights 27
12. Certificate of Adjusted Purchase Price or Number
of Shares 41
13. Consolidation, Merger or Sale or Transfer of Assets or
Earning Power 41
14. Fractional Rights and Fractional Shares 48
15. Rights of Action 50
16. Agreement of Rights Holders 50
17. Rights Certificate Holder Not Deemed a Stockholder 51
18. Concerning the Rights Agent 51
19. Merger or Consolidation or Change of Name of Rights
Agent 52
20. Duties of Rights Agent 52
21. Change of Rights Agent 54
22. Issuance of New Rights Certificates 55
23. Redemption and Termination 55
24. Exchange 56
25. Notice of Certain Events 58
26. Notices 58
27. Supplements and Amendments 59
28. Successors 60
29. Determinations and Actions by the Board of Directors,
etc. 60
30. Benefits of this Agreement 60
31. Severability 60
32. Governing Law 61
33. Counterparts 61
34. Descriptive Headings 61
EXHIBIT A-1 Terms of Preferred Stock - Sixth Series
EXHIBIT A-2 Terms of Preferred Stock - Eighth Series
EXHIBIT B-1 Form of FON Group Rights Certificate
EXHIBIT B-2 Form of PCS Group Rights Certificate
EXHIBIT B-3 Form of Old Class A Right Certificate
EXHIBIT B-4 Form of Series DT Right Certificate
AMENDED AND RESTATED
RIGHTS AGREEMENT
THIS AMENDED AND RESTATED RIGHTS AGREEMENT, is dated as
of _________, 1998 (the "Agreement"), between Sprint Corporation,
a Kansas corporation (the "Company" or "Sprint"), and UMB Bank,
n.a., a national banking association (the "Rights Agent"), and
shall become effective upon the filing of the Initial Charter
Amendment (as defined herein).
W I T N E S S E T H
WHEREAS, on June 9, 1997 the Board of Directors of the
Company adopted a shareholder rights plan governed by the terms
of a rights agreement between the Company and the Rights Agent,
dated as of that same date (the "Original Agreement") and
distributed one right (an "Existing Right") for each share of
Common Stock, par value $2.50 per share, outstanding at the close
of business on June 24, 1997 (the "1997 Record Date"), and
authorized the issuance of one Existing Right for each share of
Sprint Common Stock issued between the 1997 Record Date and the
filing of the Initial Charter Amendment.
WHEREAS, pursuant to the Restructuring and Merger
Agreement (as defined herein) and the Initial Charter Amendment
(as defined herein), the Company will create the PCS Group (as
defined herein) and the Sprint FON Group (as defined herein);
WHEREAS, the Initial Charter Amendment and the plan of
reclassification effected thereby will (i) reclassify the shares
of the Company's existing Class A Common Stock, par value $2.50
per share, together with Existing Rights associated therewith,
held by DT or any Qualified Subsidiary of DT into shares of Class
A Common Stock - Series DT, par value $2.50 per share, and the
Series DT Rights (as defined herein) associated therewith will
reflect the amendment of the Existing Rights effected by this
Amended and Restated Rights Agreement, and (ii) leave outstanding
the shares of the existing Class A Common Stock, par value $2.50
per share, held by FT or any Qualified Subsidiary of FT, and the
Old Class A Right (as defined herein) associated therewith will
reflect the amendment and redesignation of each Existing Right
effected by this Amended and Restated Rights Agreement;
WHEREAS, each Existing Right is amended by this Amended
and Restated Rights Agreement to be, and is redesignated as, a
FON Group Right (as defined herein);
WHEREAS, after the filing of the Initial Charter
Amendment pursuant to K.S.A. Section 17-6003(d) but prior to the filing
of the Subsequent Charter Amendment pursuant to said section,
(i) the Sprint Common Stock (as defined herein), the Series 2
Common Stock (as defined herein), the Old Class A Common Stock
(as defined herein), and the Class A Common Stock - Series DT (as
defined herein) will track the performance of the Sprint FON
Group and, (ii) to the extent of the Number Of Shares Issuable
With Respect To The Intergroup Interest (as defined herein)
inherent in such classes or series of stock, together with the
Series 1 PCS Stock (as defined herein), the Series 2 PCS Stock
(as defined herein) and the Series 3 PCS Stock (as defined
herein), will track the performance of the PCS Group;
WHEREAS, the Company plans to issue Series 2 PCS Stock
(as defined herein) pursuant to the mergers contemplated by the
Restructuring and Merger Agreement and to make an initial primary
underwritten public offering of Series 1 PCS Stock (as defined
herein) concurrently with the consummation of such mergers and
all shares of PCS Group Common Stock (as defined herein) shall
have PCS Group Rights (as defined herein) associated therewith;
WHEREAS, the Company plans to effect a Recapitalization
(as defined herein), within 120 days of the consummation of the
mergers contemplated by the Restructuring and Merger Agreement,
which, following approval of the Subsequent Charter Amendment by
the stockholders of the Company in accordance with applicable law
and the then existing Articles of Incorporation and Bylaws of the
Company, will upon filing of the Subsequent Charter Amendment
pursuant to K.S.A. Section 17-6003(d) reclassify (i) each share of
Common Stock of the Company, par value $2.50 per share, together
with a FON Group Right associated therewith, into (A) one share
of Series 1 FON Stock (as defined herein), together with a FON
Group Right associated therewith, and (B) one-half of a share of
Series 1 PCS Stock, together with one-half of a PCS Group Right
associated therewith, and (ii) each share of Series 2 Common
Stock, together with a FON Group Right associated therewith, into
one share of Series 2 FON Stock (as defined herein), together
with a FON Group Right associated therewith, and each share of
(A) Old Class A Common Stock, shall remain outstanding, together
with an Old Class A Right (as defined herein) associated
therewith, (B) Class A Common Stock - Series DT shall remain
outstanding, together with a Series DT Right associated
therewith, (C) Series 1 PCS Stock shall remain outstanding,
together with a PCS Group Right associated therewith,
(D) Series 2 PCS Stock shall remain outstanding, together with a
PCS Group Right associated therewith, and (E) Series 3 PCS Stock
shall remain outstanding, together with a PCS Group Right
associated therewith;
WHEREAS, after the filing of the Subsequent Charter
Amendment pursuant to K.S.A. Section 17-6003(d), (i) the Series 1 FON
Stock, the Series 2 FON Stock, the Old Class A Common Stock (but
only to the extent of the Number Of Shares Issuable With Respect
To The Old Class A Equity Interest In The FON Group), and the
Class A Common Stock - Series DT (but only to the extent of the
Number Of Shares Issuable With Respect To The Class A - Series DT
Equity Interest In The FON Group) shall track the performance of
the Sprint FON Group; and (ii) to the extent of the Number Of
Shares Issuable With Respect To The FON Group Intergroup Interest
inherent in such classes and series of stock, together with the
Series 1 PCS Stock, the Series 2 PCS Stock, the Series 3 PCS
Stock, the Old Class A Common Stock (but only to the extent of
the Number Of Shares Issuable With Respect To The Old Class A
Equity Interest In The PCS Group), and the Class A Common Stock -
Series DT (but only to the extent of the Number Of Shares
Issuable With Respect To The Class A - Series DT Equity Interest
In The PCS Group), shall track the performance of the PCS Group;
WHEREAS, (i) each FON Group Right will initially
represent the right to purchase one one-thousandth of a share of
Preferred Stock - Sixth Series of the Company (subject to
adjustment as hereinafter provided), (ii) each PCS Group Right
will initially represent the right to purchase one one-thousandth
of a share of Preferred Stock - Eighth Series of the Company
(subject to adjustment as hereinafter provided), (iii) each Old
Class A Right will initially represent (A) if exercised prior to
the filing of the Subsequent Charter Amendment pursuant to K.S.A.
Section 17-6003(d), the right to purchase one one-thousandth of a share
of Preferred Stock - Sixth Series of the Company (subject to
adjustment as hereinafter provided), and (B) if exercised after
the filing of the Subsequent Charter Amendment pursuant to K.S.A.
Section 17-6003(d), (x) the right to purchase one one-thousandth of a
share of Preferred Stock - Sixth Series of the Company (subject
to adjustment as hereinafter provided) for each share represented
by the quotient of the Number Of Shares Issuable With Respect To
The Old Class A Equity Interest In The FON Group divided by the
aggregate number of shares of Old Class A Common Stock issued and
outstanding at such time, and (y) the right to purchase one one-
thousandth of a share of Preferred Stock - Eighth Series of the
Company (subject to adjustment as hereinafter provided) for each
share represented by the quotient of the Number Of Shares
Issuable With Respect To The Old Class A Equity Interest In The
PCS Group divided by the aggregate number of shares of Old Class
A Common Stock issued and outstanding at such time, (iv) each
Series DT Right will initially represent (A) if exercised prior
to the filing of the Subsequent Charter Amendment pursuant to
K.S.A. Section 17-6003(d), the right to purchase one one-thousandth of
a share of Preferred Stock - Sixth Series of the Company (subject
to adjustment as hereinafter provided), and (B) if exercised
after the filing of the Subsequent Charter Amendment pursuant to
K.S.A. Section 17-6003(d), (x) the right to purchase one one-thousandth
of a share of Preferred Stock - Sixth Series of the Company
(subject to adjustment as hereinafter provided) for each share
represented by the quotient of the Number Of Shares Issuable With
Respect To The Class A - Series DT Equity Interest In The FON
Group divided by the aggregate number of shares of Class A Common
Stock - Series DT issued and outstanding at such time, and
(y) the right to purchase one one-thousandth of a share of
Preferred Stock - Eighth Series of the Company (subject to
adjustment as hereinafter provided) for each share represented by
the quotient of the Number Of Shares Issuable With Respect To The
Class A - Series DT Equity Interest In The PCS Group divided by
the aggregate number of shares of Class A Common Stock - Series
DT issued and outstanding at such time, in each case upon the
terms and subject to the conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the premises and
the mutual agreements herein set forth, the parties hereby (i)
agree that each Existing Right is hereby amended to be, and is
hereby redesignated as, a FON Group Right, and (ii) otherwise
agree as follows:
Section 1. Certain Definitions. For purposes of
this Agreement, the following terms have the meanings indicated:
(a) "Acquiring Person" shall mean any Person who or
which, together with all Affiliates and Associates of such
Person, shall be the Beneficial Owner of the Voting Securities of
the Company then outstanding representing 15% or more of the
Voting Power of the Company other than as a result of a
Qualifying Offer, but shall not include (i) the Company, (ii) any
Subsidiary of the Company, (iii) any employee benefit plan of the
Company or of any Subsidiary of the Company, or (iv) any Person
or entity organized, appointed or established by the Company for
or pursuant to the terms of any such plan. Notwithstanding the
preceding sentence:
(w) in order to effectuate Section 6.23 of the
Restructuring and Merger Agreement:
(1) a holder of Series 2 PCS Stock (or
Series 2 FON Stock) shall not be deemed to Beneficially
Own the shares of Series 1 PCS Stock (or Series 1 FON
Stock) issuable upon conversion thereof prior to the
time of such conversion (including for purposes of
calculating the Voting Power of the shares held by such
holder); and
(2) the Beneficial Ownership by a Cable
Parent or its Affiliates of the shares of Common Stock
of the Company acquired by such Cable Parent or its
Affiliates pursuant to the Restructuring and Merger
Agreement (including Article 4, Section 6.8 and
Section 7.10 of the Restructuring and Merger Agreement
and including any other shares of Common Stock of the
Company acquired upon conversion on reclassification
thereof, or upon payment of any dividend or other
distribution thereon), or acquired upon the conversion
of any such shares, shall not in and of itself
constitute Beneficial Ownership of shares sufficient so
as to result in such Cable Parent or its Affiliates
being an Acquiring Person; and
(3) in the event any transferee of shares of
Common Stock of the Company from a Cable Parent or any
of its Affiliates (whose Beneficial Ownership of Common
Stock of the Company (and the Voting Power thereof) did
not exceed 15% or more of the Voting Power of the
Company as of the time of the acquisition of such
shares (including following any conversion of shares of
Series 2 PCS Stock or Series 2 FON Stock into Series 1
PCS Stock or Series 1 FON Stock in connection
therewith) so as to make such transferee an "Acquiring
Person") subsequently exceeds 15% or more of the Voting
Power of the Company as a result of the operation of
the provisions of Section 3.2 of Article Sixth of the
Initial Charter Amendment, or the Subsequent Charter
Amendment, or any successor provision of said Section
3.2, the Company shall either (A) approve the
Beneficial Ownership of the Common Stock then held by
such transferee or (B) provide such transferee with a
period of 30 days in which to divest a sufficient
number of shares (or to make other appropriate
arrangements reasonably acceptable to the Company) to
decrease such transferee's Voting Power represented by
Beneficial Ownership of Voting Securities to less than
15% of the Voting Power of the Company prior to such
transferee's becoming an "Acquiring Person."
(x) none of (A) FT, DT or any Affiliate or
Associate thereof or (B) any Strategic Investor or Passive
Financial Institution (each as defined in the Standstill
Agreement) which is deemed to be part of a "group" (within
the meaning of the Exchange Act) with FT, DT or any of their
Affiliates or Associates with respect to the Company solely
by virtue of its investment in a Qualified Subsidiary
(collectively, "FT/DT Parties") shall be deemed to be an
Acquiring Person unless the FT/DT Parties individually or in
the aggregate become the Beneficial Owner of more than the
sum of (i) the Permitted Standstill Limit, and (ii) 0.5% of
the Voting Power of the Company represented by all Voting
Securities of the Company then outstanding (the maximum
number of Voting Securities permitted pursuant to this
clause (x) to be Beneficially Owned by the FT/DT Parties
individually or in the aggregate without any such Persons
being Acquiring Persons is referred to herein as "FT/DT
Permitted Level");
(y) no Person (other than any of the FT/DT
Parties, individually or collectively) shall become an
Acquiring Person solely as a result of a reduction in the
number of shares of Voting Securities outstanding due to the
repurchase of such securities by the Company, unless and
until such Person shall purchase or otherwise become the
Beneficial Owner of additional Voting Securities
constituting 0.5% or more of the Voting Power represented by
such securities then outstanding other than pursuant to a
Qualifying Offer; and
(z) no Person (other than any of the FT/DT
Parties, individually or collectively) shall become an
Acquiring Person solely as a result of an increase, pursuant
to the provisions of Section 3.2 of Article Sixth of the
Initial Charter Amendment, or the Subsequent Charter
Amendment, or any successor provision of said Section 3.2,
of the Beneficial Ownership of Voting Securities of the
Company then outstanding representing Voting Power of the
shares of Common Stock held by such Person to 15% or more of
the Voting Power of the Company, if within ten Business Days
after the date upon which the Company shall first become
aware of the occurrence of such an event, the Board of
Directors in its sole discretion (1) approves the Beneficial
Ownership of such Voting Securities then held by such
Person, together with all Affiliates and Associates of such
Person, or (2) provides such Person a thirty day period to
divest a sufficient number of Voting Securities so as to
decrease the Beneficial Ownership of Voting Securities of
the Company by such Person, together with all Affiliates and
Associates of such Person, to less than 15% of the Voting
Power of the Company and such Person, together with all
Affiliates and Associates of such Person, has so divested at
the end of any such thirty day period.
The phrase "then outstanding," when used with reference to a
Person's beneficial ownership of securities of the Company, shall
mean the number of such securities then issued and outstanding
together with the number of such securities not then actually
issued and outstanding which such Person would be deemed to
beneficially own hereunder. The term "Permitted Standstill
Limit" shall mean the maximum number of Voting Securities
permitted to be Beneficially Owned by FT, DT and their Affiliates
and Associates, individually or in the aggregate, under Sections
2.1(a)(i) and 2.3 of the Standstill Agreement (but not
(x) Section 2.1(a)(ii) or 2.2, or (y) Section 2.3 thereof, to the
extent based upon an applicable Percentage Limitation as
determined by Section 2.1(a)(ii) or 2.2 thereof, or (z) clause
(ii) of Section 2.3(a)); provided that if the Standstill
Agreement is terminated or the provisions of Section 2.1(a)(i)
have expired, the term "Permitted Standstill Limit" shall mean
the maximum number of Voting Securities that would have been
permitted to be Beneficially Owned by FT, DT and their Affiliates
and Associates under Sections 2.1(a)(i) and 2.3 of the Standstill
Agreement (but not (x) Sections 2.1(a)(ii) or 2.2, or (y) Section
2.3 thereof, to the extent based upon an applicable Percentage
Limitation as determined by Section 2.1(a)(ii) or 2.2 thereof, or
(z) clause (ii) of Section 2.3(a)) had the Standstill Agreement
not been so terminated or Section 2.1(a)(i) not so expired.
(b) "Act" shall mean the Securities Act of 1933, as
amended.
(c) "Adjustment Shares" shall mean FON Adjustment
Shares and/or PCS Adjustment Shares, and/or Old Class A
Adjustment Shares and/or Series DT Adjustment Shares, as the
context requires.
(d) "Affiliate" and "Associate" shall have the
respective meanings ascribed to such terms in Rule 12b-2 of the
General Rules and Regulations under the Exchange Act as such Rule
is in effect on the date of this Agreement; provided, however,
that when used to indicate a relationship with the FT/DT Parties,
the terms "Affiliate" and "Associate" shall have the respective
meanings set forth in the Standstill Agreement.
(e) A Person shall be deemed the "Beneficial Owner"
of, and shall be deemed to "beneficially own," any securities:
(i) which such Person or any of such Person's
Affiliates or Associates, directly or indirectly, has the
right to acquire (whether such right is exercisable
immediately, or only after the passage of time) pursuant to
any agreement, arrangement or understanding (whether or not
in writing) or upon the exercise of conversion rights,
exchange rights, rights, warrants or options, or otherwise;
provided, however, that a Person shall not be deemed the
"Beneficial Owner" of, or to "beneficially own,"
(A) securities tendered pursuant to a tender or exchange
offer made by such Person or any of such Person's Affiliates
or Associates until such tendered securities are accepted
for purchase or exchange, or (B) securities issuable upon
exercise of Rights at any time prior to the occurrence of a
Triggering Event, or (C) securities issuable upon exercise
of Rights from and after the occurrence of a Triggering
Event which Rights were acquired by such Person or any of
such Person's Affiliates or Associates prior to the
Distribution Date or pursuant to Section 3(a) or Section 22
hereof (the "Original Rights") or pursuant to Section 11(i)
hereof in connection with an adjustment made with respect to
any Original Rights;
(ii) which such Person or any of such Person's
Affiliates or Associates, directly or indirectly, has the
right to vote or dispose of or has "beneficial ownership" of
(as determined pursuant to Rule 13d-3 of the General Rules
and Regulations under the Exchange Act as such Rule is in
effect on the date of this Agreement), including pursuant to
any agreement, arrangement or understanding, whether or not
in writing; provided, however, that a Person shall not be
deemed the "Beneficial Owner" of, or to "beneficially own,"
any security under this subparagraph (ii) as a result of an
agreement, arrangement or understanding to vote such
security if such agreement, arrangement or understanding:
(A) arises solely from a revocable proxy given in response
to a public proxy or consent solicitation made pursuant to,
and in accordance with, the applicable provisions of the
General Rules and Regulations under the Exchange Act, and
(B) is not also then reportable by such Person on Schedule
13D under the Exchange Act (or any comparable or successor
report); or
(iii) which are beneficially owned, directly
or indirectly, by any other Person (or any Affiliate or
Associate thereof) with which such Person (or any of such
Person's Affiliates or Associates) has any agreement,
arrangement or understanding (whether or not in writing),
for the purpose of acquiring, holding, voting (except
pursuant to a revocable proxy as described in the proviso to
subparagraph (ii) of this paragraph (e)) or disposing of any
Voting Securities of the Company; provided, however, that
nothing in this paragraph (e) shall cause a person engaged
in business as an underwriter of securities to be the
"Beneficial Owner" of, or to "beneficially own," any
securities acquired through such person's participation in
good faith in a firm commitment underwriting under the Act
until the expiration of forty days after the date of such
acquisition. Notwithstanding anything in this definition of
Beneficial Owner to the contrary, a Person who, prior to the
Distribution Date, is a member of the Board of Directors or
an officer of the Company or who is an Affiliate or
Associate of a member of the Board of Directors or officer
of the Company (each, an "Excluded Person") shall not be
deemed to "beneficially own" shares of Common Stock held by
another Excluded Person solely by reason of any agreement,
arrangement or understanding, written or otherwise, entered
into in opposition to any transaction or in support of a
Qualifying Offer. Notwithstanding anything in this
definition of Beneficial Owner to the contrary, (i) Common
Stock or Preferred Stock held by one of FT or DT or its
Affiliates shall not also be deemed to be Beneficially Owned
by the other of FT or DT or its Affiliates, (ii) shares of
Common Stock held by the Cable Parents shall be deemed to be
Beneficially Owned by FT or DT as a result of rights under
the Top-Up Agreement only to the extent that FT, DT or
their Affiliates or Associates have (A) acquired shares of
Common Stock pursuant to the Top-Up Agreement, or (B) become
irrevocably committed to acquire, and the Cable Parents have
become irrevocably committed to sell, shares of Common Stock
pursuant to the Top-Up 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 an increase in Voting Power provided for by the
application of Section 7.5(d) of Article Sixth of the
Initial Charter Amendment, or the Subsequent Charter
Amendment, or any successor provision of said Section
7.5(d).
(f) "Board of Directors" shall mean the Board of
Directors of the Company as constituted from time to time.
(g) "Business Day" shall mean any day other than a
Saturday, Sunday or a day on which banking institutions in the
State of New York or the State of Kansas are authorized or
obligated by law or executive order to close.
(h) "Cable Parent" shall mean any one of the Cable
Parents.
(i) "Cable Parents" shall mean Tele-Communications,
Inc., a Delaware corporation, Comcast Corporation, a Pennsylvania
corporation, and Cox Communications, Inc., a Delaware
corporation, collectively.
(j) "Class A Common Stock" shall have the meaning set
forth in the Initial Charter Amendment prior to the filing of the
Subsequent Charter Amendment, and in the Subsequent Charter
Amendment after the filing of the Subsequent Charter Amendment,
in each case pursuant to K.S.A. Section 17-6003(d).
(k) "Class A Common Stock - Series DT" shall have the
meaning set forth in the Initial Charter Amendment prior to the
filing of the Subsequent Charter Amendment, and in the Subsequent
Charter Amendment after the filing of the Subsequent Charter
Amendment, in each case pursuant to K.S.A. Section 17-6003(d).
(l) "Close of business" on any given date shall mean
5:00 P.M., New York City time, on such date; provided, however,
that if such date is not a Business Day it shall mean 5:00 P.M.,
New York City time, on the next succeeding Business Day.
(m) "Common Stock" (i) when used with reference to the
Company shall mean (A) if prior to the filing of the Subsequent
Charter Amendment pursuant to K.S.A. Section 17-6003(d): Sprint Common
Stock, and/or Series 2 Common Stock, and/or Old Class A Common
Stock, and/or Class A Common Stock - Series DT, and/or Series 1
PCS Stock, and/or Series 2 PCS Stock, and/or Series 3 PCS Stock,
in each case as the context requires, and (B) if after the filing
of the Subsequent Charter Amendment: Series 1 FON Stock, and/or
Series 2 FON Stock, and/or Series 3 FON Stock, and/or Old Class A
Common Stock, and/or Class A Common Stock - Series DT, and/or
Series 1 PCS Stock, and/or Series 2 PCS Stock, and/or Series 3
PCS Stock, in each case as the context requires; and (ii) when
used with reference to any Person other than the Company shall
mean the capital stock of such Person with the greatest voting
power, or the equity securities or other equity interest having
power to control or direct the management, of such Person.
(n) "Common Stock Equivalents" shall have the meaning
set forth in Section 11(a)(iii) hereof.
(o) "Current Market Price" shall have the meaning set
forth in Section 11(d)(i) hereof.
(p) "Current Value" shall have the meaning set forth
in Section 11(a)(iii) hereof.
(q) "Distribution Date" shall have the meaning set
forth in Section 3(a) hereof.
(r) "DT" shall mean Deutsche Telekom AG.
(s) "Effective Date" shall mean _________________,
1998.
(t) "Exchange Act" shall mean the Securities Exchange
Act of 1934, as amended and in effect on the date of this
Agreement.
(u) "Exchange Ratio" shall have the meaning set forth
in Section 24(a) hereof.
(v) "Expiration Date" shall have the meaning set forth
in Section 7(a) hereof.
(w) "Final Expiration Date" shall have the meaning set
forth in Section 7(a) hereof.
(x) "FON Adjustment Shares" shall have the meaning set
forth in Section 11(a)(ii) hereof.
(y) "FON Group Common Stock" shall mean (i) if prior
to the filing of the Subsequent Charter Amendment pursuant to
K.S.A. Section 17-6003(d), Sprint Common Stock, and/or Series 2 Common
Stock, in each case as the context requires, and (ii) if after
the filing of the Subsequent Charter Amendment pursuant to K.S.A.
Section 17-6003(d), Series 1 FON Stock, and/or Series 2 FON Stock,
and/or Series 3 FON Stock, in each case as the context requires.
(z) "FON Group Right" shall mean one right (as such
number may hereinafter be adjusted pursuant to the provisions of
Section 11(p) hereof) for (i) each share of FON Group Common
Stock outstanding at the time of filing the Initial Charter
Amendment pursuant to K.S.A. Section 17-6003(d), and (ii) each share of
FON Group Common Stock issued between the filing of the Initial
Charter Amendment (whether originally issued or delivered from
the Company's treasury) and the Distribution Date, and in certain
circumstances, after the Distribution Date, each such right
initially representing the right to purchase one one-thousandth
of a share of Preferred Stock - Sixth Series (subject to
adjustment as hereinafter provided), upon the terms and subject
to the conditions herein set forth.
(aa) "FON Group Rights Certificate" shall have the
meaning set forth in Section 3(a) hereof.
(bb) "FON Purchase Price" shall have the meaning set
forth in Section 4(a) hereof.
(cc) "FON Stock" shall mean the Series 1 FON Stock, the
Series 2 FON Stock and the Series 3 FON Stock.
(dd) "FT" shall mean France Telecom SA.
(ee) "FT/DT Parties" shall have the meaning set forth
in clause (x) of the definition of "Acquiring Person" hereof.
(ff) "Initial Charter Amendment" shall have the meaning
set forth in the Restructuring and Merger Agreement.
(gg) "NASDAQ" shall have the meaning set forth in
Section 11(d)(i) hereof.
(hh) "Number Of Shares Issuable With Respect To The
Class A - Series DT Equity Interest In The FON Group" shall have
the meaning set forth in the Subsequent Charter Amendment.
(ii) "Number Of Shares Issuable With Respect To The
Class A - Series DT Equity Interest In The PCS Group" shall have
the meaning set forth in the Subsequent Charter Amendment.
(jj) "Number Of Shares Issuable With Respect To The FON
Group Intergroup Interest" shall have the meaning set forth in
the Subsequent Charter Amendment.
(kk) "Number Of Shares Issuable With Respect To The
Intergroup Interest" shall have the meaning set forth in the
Initial Charter Amendment.
(ll) "Number Of Shares Issuable With Respect To The Old
Class A Equity Interest In The FON Group" shall have the meaning
set forth in the Subsequent Charter Amendment.
(mm) "Number Of Shares Issuable With Respect To The Old
Class A Equity Interest In The PCS Group" shall have the meaning
set forth in the Subsequent Charter Amendment.
(nn) "Old Class A Adjustment Shares" shall mean the
total of the "Old Class A FON Adjustment Shares" (as defined in
Section 11(a)(ii) hereof) and "Old Class A PCS Adjustment Shares"
(as defined in Section 11(a)(ii) hereof).
(oo) "Old Class A Common Stock" shall have the meaning
set forth in the Initial Charter Amendment prior to the filing of
the Subsequent Charter Amendment, and in the Subsequent Charter
Amendment after the filing of the Subsequent Charter Amendment,
in each case pursuant to K.S.A. Section 17-6003(d).
(pp) "Old Class A Purchase Price" shall have the
meaning set forth in Section 4(a) hereof.
(qq) "Old Class A Right" shall mean one right (as such
number may hereinafter be adjusted pursuant to the provisions of
Section 11(p) hereof) for (i) each share of Class A Common Stock
held by FT or any Qualified Subsidiary of FT and outstanding at
the time of filing the Initial Charter Amendment pursuant to
K.S.A. Section 17-6003(d), and (ii) each share of Old Class A Common
Stock issued between the filing of the Initial Charter Amendment
(whether originally issued or delivered from the Company's
treasury) and the Distribution Date, and in certain
circumstances, after the Distribution Date, each such right
initially representing (A) if exercised prior to the filing of
the Subsequent Charter Amendment pursuant to K.S.A. Section 17-6003(d),
the right to purchase one one-thousandth of a share of Preferred
Stock - Sixth Series of the Company (subject to adjustment as
hereinafter provided), and (B) if exercised after the filing of
the Subsequent Charter Amendment pursuant to K.S.A. Section 17-6003(d),
(x) the right to purchase one one-thousandth of a share of
Preferred Stock - Sixth Series, for each share represented by the
quotient of the Number Of Shares Issuable With Respect To The Old
Class A Equity Interest In The FON Group divided by the aggregate
number of shares of Old Class A Common Stock issued and
outstanding at such time, and (y) the right to purchase one one-
thousandth of a share of Preferred Stock - Eighth Series, for
each share represented by the quotient of the Number Of Shares
Issuable With Respect To The Old Class A Equity Interest In The
PCS Group divided by the aggregate number of shares of Old Class
A Common Stock issued and outstanding at such time.
(rr) "Old Class A Rights Certificate" shall have the
meaning set forth in Section 3(a) hereof.
(ss) "Old Class A Eighth Series Purchase Price" shall
have the meaning set forth in Section 4(a) and shall be equal to
the then current PCS Purchase Price.
(tt) "Old Class A Sixth Series Purchase Price" shall
have the meaning set forth in Section 4(a) hereof and shall be
equal to the then current FON Purchase Price.
(uu) "PCS Adjustment Shares" shall have the meaning set
forth in Section 11(a)(ii) hereof.
(vv) "PCS Group" shall have the meaning set forth in
the Initial Charter Amendment prior to the filing of the
Subsequent Charter Amendment, and in the Subsequent Charter
Amendment after the filing of the Subsequent Charter Amendment,
in each case pursuant to K.S.A. Section 17-6003(d).
(ww) "PCS Group Common Stock" shall mean Series 1 PCS
Stock, and/or Series 2 PCS Stock, and/or Series 3 PCS Stock, in
each case as the context requires.
(xx) "PCS Group Right" shall mean one right (as such
number may hereinafter be adjusted pursuant to the provisions of
Section 11(p) hereof) for each share of PCS Group Common Stock
issued between the filing of the Initial Charter Amendment
(whether originally issued or delivered from the Company's
treasury) and the Distribution Date, and in certain
circumstances, after the Distribution Date, each such right
initially representing the right to purchase one one-thousandth
of a share of Preferred Stock - Eighth Series (subject to
adjustment as hereinafter provided), upon the terms and subject
to the conditions herein set forth.
(yy) "PCS Group Rights Certificate" shall have the
meaning set forth in Section 3(a) hereof.
(zz) "PCS Purchase Price" shall have the meaning set
forth in Section 4(a) hereof.
(aaa) "Person" shall mean any individual, firm,
corporation, partnership or other entity, and shall include any
successor (by merger or otherwise) of such entity.
(bbb) "Preferred Stock" shall mean Preferred Stock
- - Sixth Series and/or Preferred Stock - Eighth Series as the
context requires.
(ccc) "Preferred Stock - Sixth Series" shall mean
shares of Preferred Stock - Sixth Series, Junior Participating,
without par value, of the Company, and, to the extent that there
are not a sufficient number of shares of Preferred Stock - Sixth
Series, Junior Participating, without par value, authorized to
permit the full exercise of the FON Group Rights, Old Class A
Rights and Series DT Rights, any other series of Preferred Stock,
without par value, of the Company designated for such purpose
containing terms substantially similar to the terms of the
Preferred Stock - Sixth Series, Junior Participating, without par
value, of the Company.
(ddd) "Preferred Stock - Eighth Series" shall mean
shares of Preferred Stock - Eighth Series, Junior Participating,
without par value, of the Company, and, to the extent that there
are not a sufficient number of shares of Preferred Stock - Eighth
Series, Junior Participating, without par value, authorized to
permit the full exercise of the PCS Group Rights, Old Class A
Rights and Series DT Rights, any other series of Preferred Stock,
without par value, of the Company designated for such purpose
containing terms substantially similar to the terms of the
Preferred Stock - Eighth Series, Junior Participating, without
par value, of the Company.
(eee) "Principal Party" shall have the meaning set
forth in Section 13(b) hereof.
(fff) "Purchase Price" shall mean the FON Purchase
Price, and/or Old Class A Purchase Price, and/or the PCS Purchase
Price, and/or Series DT Purchase Price, as the context requires.
(ggg) "Qualified Subsidiary" shall have the meaning
set forth in the Standstill Agreement.
(hhh) "Qualifying Offer" shall mean an acquisition
of shares of Common Stock pursuant to a tender offer or an
exchange offer for all outstanding shares of Common Stock at a
price and on terms determined by at least a majority of the
members of the Board of Directors who are not officers of the
Company and who are not representatives, nominees, Affiliates or
Associates of an Acquiring Person, after receiving advice from
one or more investment banking firms, to be (a) fair to
stockholders (taking into account all factors which such members
of the Board deem relevant including, without limitation, prices
which could reasonably be achieved if the Company or its assets
were sold on an orderly basis designed to realize maximum value)
and (b) otherwise in the best interests of the Company and its
stockholders.
(iii) "Recapitalization" shall mean the
reclassification of each outstanding share of Sprint Common Stock
into one share of Series 1 FON Stock and one-half of a share of
Series 1 PCS Stock to be effected by the filing of the Subsequent
Charter Amendment.
(jjj) "Redemption Date" shall have the meaning set
forth in Section 7 hereof.
(kkk) "Redemption Price" shall have the meaning set
forth in Section 23(a) hereof.
(lll) "Restructuring and Merger Agreement" shall
mean that certain agreement, dated as of May 26, 1998, by and
among the Company, the Cable Parents, TCI Spectrum Holdings,
Inc., a Colorado corporation, Comcast Telephony Services, a
Delaware general partnership, Cox Telephony Partnership, a
Delaware general partnership, Sprint Enterprises, L.P., a
Delaware limited partnership, TCI Philadelphia Holdings, Inc., a
Delaware corporation, Com Telephony Services, Inc., a Delaware
corporation, Comcast Telephony Services, Inc., a Delaware
corporation, Cox Telephony Partners, Inc., a Delaware
corporation, Cox Communications Wireless, Inc., a Delaware
corporation, SWV One, Inc., a Delaware corporation, SWV Two,
Inc., a Delaware corporation, SWV Three, Inc., a Delaware
corporation, SWV Four, Inc., a Delaware corporation, SWV Five,
Inc., a Delaware corporation, and SWV Six, Inc., a Colorado
corporation.
(mmm) "Rights" shall mean FON Group Rights, and/or Old
Class A Rights, and/or PCS Group Rights, and/or Series DT Rights,
as the context requires.
(nnn) "Rights Certificate" shall mean the FON Group
Rights Certificate, and/or Old Class A Rights Certificate, and/or
PCS Group Rights Certificate, and/or Series DT Rights
Certificate, as the context requires.
(ooo) "Section 11(a)(ii) Event" shall have the meaning
set forth in Section 11(a)(ii) hereof.
(ppp) "Section 11(a)(ii) Trigger Date" shall have the
meaning set forth in Section 11(a)(iii) hereof.
(qqq) "Section 13 Event" shall mean any event described
in clauses (x), (y) or (z) of Section 13(a) hereof.
(rrr) "Series 2 Common Stock" shall mean the Common
Stock - Series 2, par value $2.50 per share, of Sprint, which
will be created by the filing of the Initial Charter Amendment.
(sss) "Series 1 FON Stock" shall mean the FON Common
Stock - Series 1, par value $2.00 per share, of Sprint, which
will be created by the filing of the Subsequent Charter
Amendment.
(ttt) "Series 2 FON Stock" shall mean the FON Common
Stock - Series 2, par value $2.00 per share, of Sprint, which
will be created by the filing of the Subsequent Charter
Amendment.
(uuu) "Series 3 FON Stock" shall mean the FON Common
Stock - Series 3, par value $2.00 per share, of Sprint, which
will be created by the filing of the Subsequent Charter
Amendment.
(vvv) "Series 1 PCS Stock" shall mean the PCS Common
Stock - Series 1, par value $1.00 per share, of Sprint, which
will be created by the filing of the Initial Charter Amendment.
(www) "Series 2 PCS Stock" shall mean the PCS Common
Stock - Series 2, par value $1.00 per share, of Sprint, which
will be created by the filing of the Initial Charter Amendment.
(xxx) "Series 3 PCS Stock" shall mean the PCS Common
Stock - Series 3, par value $1.00 per share, of Sprint, which
will be created by the filing of the Initial Charter Amendment.
(yyy) "Series DT Adjustment Shares" shall have the
meaning set forth in Section 11(a)(ii) hereof.
(zzz) "Series DT Eighth Series Purchase Price" shall
have the meaning set forth in Section 4(a) hereof and shall be
equal to the then current PCS Purchase Price.
(aaaa) "Series DT Purchase Price" shall have
the meaning set forth in Section 4(a) hereof.
(bbbb) "Series DT Right" shall mean one right
(as such number may hereinafter be adjusted pursuant to the
provisions of Section 11(p) hereof) for (i) each share of Class A
Common Stock held by DT or any Qualified Subsidiaries of DT and
outstanding at the time of filing the Initial Charter Amendment
pursuant to K.S.A. Section 17-6003(d), and (ii) each share of Class A
Common Stock - Series DT issued between the filing of the Initial
Charter Amendment (whether originally issued or delivered from
the Company's treasury) and the Distribution Date, and in certain
circumstances, after the Distribution Date, each such right
initially representing (A) if exercised prior to the filing of
the Subsequent Charter Amendment pursuant to K.S.A. Section 17-6003(d),
the right to purchase one one-thousandth of a share of Preferred
Stock - Sixth Series, and (B) if exercised after the filing of
the Subsequent Charter Amendment pursuant to K.S.A. Section 17-6003(d),
(y) the right to purchase one one-thousandth of a share of
Preferred Stock - Sixth Series for each share represented by the
quotient of the Number Of Shares Issuable With Respect To The
Class A - Series DT Equity Interest In The FON Group divided by
the aggregate number of shares of Class A Common Stock - Series
DT issued and outstanding at such time, and (z) the right to
purchase one one-thousandth of a share of Preferred Stock -
Eighth Series for each share represented by the quotient of the
Number Of Shares Issuable With Respect To The Class A - Series DT
Equity Interest In The PCS Group divided by the aggregate number
of shares of Class A Common Stock - Series DT issued and
outstanding at such time.
(cccc) "Series DT Rights Certificate" shall
have the meaning set forth in Section 3(a) hereof.
(dddd) "Series DT Eighth Series Purchase Price"
shall have the meaning set forth in Section 4(a) hereof and shall
be equal to the then current PCS Purchase Price.
(eeee) "Series DT Sixth Series Purchase Price"
shall have the meaning set forth in Section 4(a) hereof and shall
be equal to the then current FON Purchase Price.
(ffff) "Spread" shall have the meaning set
forth in Section 11(a)(iii) hereof.
(gggg) "Sprint Common Stock" shall mean common
stock, par value $2.50 per share of the Company, as provided for
in the Initial Charter Amendment.
(hhhh) "Sprint FON Group" shall have the
meaning set forth in the Initial Charter Amendment prior to the
filing of the Subsequent Charter Amendment, and in the Subsequent
Charter Amendment after the filing of the Subsequent Charter
Amendment, in each case pursuant to K.S.A. Section 17-6003(d).
(iiii) "Standstill Agreement" shall mean the
Amended and Restated Standstill Agreement, by and among the
Company, FT and DT dated as of _____________, 1998.
(jjjj) "Stock Acquisition Date" shall mean the
earlier of the date of (i) the first public announcement (which,
for purposes of this definition, shall include, without
limitation, a report filed under the Exchange Act) by the Company
or an Acquiring Person that an Acquiring Person has become such
or (ii) the first public disclosure of facts by the Company or an
Acquiring Person indicating that an Acquiring Person has become
an Acquiring Person; provided, however, that a Stock Acquisition
Date shall not be deemed to have occurred if any Person
(including the FT/DT Parties, individually or in the aggregate)
shall have inadvertently become an Acquiring Person and within
ten Business Days after the date upon which the Company shall
first become aware of the occurrence of such an event, the Board
of Directors in its sole discretion (1) approves the beneficial
ownership interest then held by such Person, or (2) provides such
Person a thirty day period to divest a sufficient number of
Voting Securities so as to decrease the beneficial ownership of
such Person to less than 15% of the Voting Power of the Voting
Securities then outstanding (or in the case of the FT/DT Parties
(individually or in the aggregate), to not more than the FT/DT
Permitted Level) and such Person or the FT/DT Parties have so
divested at the end of any such thirty day period.
(kkkk) "Subsequent Charter Amendment" shall
have the meaning set forth in the Restructuring and Merger
Agreement.
(llll) "Subsidiary" shall mean, with reference
to any Person, any other Person of which an amount of voting
securities sufficient to elect at least a majority of the
directors or Persons having similar authority of such other
Person is beneficially owned, directly or indirectly, by such Per
son, or otherwise controlled by such Person.
(mmmm) "Substitution Period" shall have the meaning set
forth in Section 11(a)(iii) hereof.
(nnnn) "Top-Up Agreement" shall mean the Top-Up Right
Agreement, dated May 26, 1998, by and among FT, DT and the Cable
Parents.
(oooo) "Trading Day" shall have the meaning set forth
in Section 11(d)(i) hereof.
(pppp) "Triggering Event" shall mean any Section
11(a)(ii) Event or any Section 13 Event.
(qqqq) "Vote" shall mean, with respect to any entity,
the ability to cast a vote at a stockholders', members' or
comparable meeting of such entity with respect to the election of
directors, managers or other members of such entity's governing
body, or the ability to cast a general partnership or comparable
vote, provided, that with respect to the Company, the term "Vote"
shall mean the ability to exercise general voting power (as
opposed to exercise of special voting or disapproval rights such
as those set forth in Article SIXTH of the Initial Charter
Amendment or the Subsequent Charter Amendment, as the case may
be) with respect to matters other than the election of directors
at a meeting of the stockholders of the Company and, for all
purposes of this Agreement, in determining the number of Votes
outstanding at any date and/or represented by any share of Common
Stock 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 the Company on each such determination date;
provided, further, that for purposes of determining whether the
FT/DT Parties are Acquiring Persons and determining the FT/DT
Permitted Level, "Vote" shall have the meaning set forth in the
Standstill Agreement.
(rrrr) "Voting Power" shall mean, with respect to any
entity as at any date, the aggregate number of Votes outstanding
as at such date in respect of such entity.
(ssss) "Voting Securities" shall mean the Common
Stock and any other securities of the Company the holders of
which are ordinarily, in the absence of contingencies, entitled
to Vote, even though the right to such Vote has been suspended by
the happening of such a contingency.
Section 2. Appointment of Rights Agent. The
Company hereby appoints the Rights Agent to act as agent for the
Company and the holders of the Rights (who, in accordance with
Section 3 hereof, shall prior to the Distribution Date also be
the holders of the Common Stock) in accordance with the terms and
conditions hereof, and the Rights Agent hereby accepts such
appointment. The Company may from time to time appoint such
Co-Rights Agents as it may deem necessary or desirable.
Section 3. Issue of Rights Certificates.
(a) Until the earlier of (i) the close of business on
the tenth Business Day after the Stock Acquisition Date, and (ii)
the close of business on the tenth Business Day (or such later
date as the Board shall determine prior to such time as any
Person becomes an Acquiring Person) after the date of the
commencement by any Person (other than the Company, any
Subsidiary of the Company, any employee benefit plan of the
Company or of any Subsidiary of the Company, or any Person or
entity organized, appointed or established by the Company for or
pursuant to the terms of any such plan) of, or the first public
announcement of the intention of such Person to commence, a
tender offer or exchange offer, the consummation of which would
result in any Person becoming the Beneficial Owner of Voting
Securities then outstanding representing 15% or more of the
Voting Power of the Company (or in the case of the FT/DT Parties
(individually or in the aggregate), shares in excess of the FT/DT
Permitted Level) (the earlier of (i) and (ii) being herein re
ferred to as the "Distribution Date"), (x) FON Group Rights, PCS
Group Rights, Old Class A Rights and Series DT Rights will be
evidenced (subject, in each case, to the provisions of paragraph
(b) of this Section 3) by the certificates for the FON Group
Common Stock, PCS Group Common Stock, Old Class A Common Stock
and Class A Common Stock - Series DT, respectively (which
certificates for FON Group Common Stock, PCS Group Common Stock,
Old Class A Common Stock and Class A Common Stock - Series DT
shall also be deemed certificates for FON Group Rights, PCS Group
Rights, Old Class A Rights and Series DT Rights, respectively),
and not by separate certificates, and (y) the Rights will be
transferable only in connection with the transfer of the
underlying shares of Common Stock (including a transfer to the
Company). As soon as practicable after the Distribution Date,
the Company shall prepare and execute and the Rights Agent will
countersign and send by first-class, insured, postage prepaid
mail, to each record holder of (i) FON Group Common Stock as of
the close of business on the Distribution Date, at the address of
such holder shown on the records of the Company, one or more
rights certificates, in substantially the form attached hereto as
Exhibit B-1 (the "FON Group Rights Certificates"), evidencing one
FON Group Right for each share of Common Stock so held, subject
in each case to adjustment as provided herein, (ii) PCS Group
Common Stock as of the close of business on the Distribution
Date, at the address of such holder shown on the records of the
Company, one or more rights certificates, in substantially the
form attached hereto as Exhibit B-2 (the "PCS Group Rights
Certificates"), evidencing one PCS Group Right for each share of
Common Stock so held, subject in each case to adjustment as
provided herein, (iii) Old Class A Common Stock as of the close
of business on the Distribution Date, at the address of such
holder shown on the records of the Company, one or more rights
certificates, in substantially the form attached hereto as
Exhibit B-3 (the "Old Class A Rights Certificates"), evidencing
one Old Class A Right for each share of Class A Common Stock so
held, subject in each case to adjustment as provided herein, and
(iv) Class A Common Stock - Series DT as of the close of business
on the Distribution Date, at the address of such holder shown on
the records of the Company, one or more rights certificates, in
substantially the form attached hereto as Exhibit B-4 (the
"Series DT Rights Certificates"), evidencing one Series DT Right
for each share of Class A Common Stock - Series DT so held,
subject in each case to adjustment as provided herein. In the
event that an adjustment in the number of Rights per share of
Common Stock has been made pursuant to Section 11(p) hereof, at
the time of distribution of the Rights Certificates, the Company
shall make the necessary and appropriate rounding adjustments (in
accordance with Section 14(a) hereof) so that Rights Certificates
representing only whole numbers of Rights are distributed and
cash is paid in lieu of any fractional Rights. As of and after
the Distribution Date, the Rights will be evidenced solely by
such Rights Certificates.
(b) With respect to certificates for the Common Stock
outstanding immediately prior to the filing of the Initial
Charter Amendment pursuant to K.S.A. Section 17-6003(d), until the Dis
tribution Date, the Rights will be evidenced by such certificates
for the Common Stock and the registered holders of the Common
Stock shall also be the registered holders of the associated
Rights. Until the earlier of the Distribution Date or the
Expiration Date, the transfer of any certificates representing
shares of Common Stock in respect of which Rights have been
issued shall also constitute the transfer of the Rights
associated with such shares of Common Stock.
(c) Rights shall be issued in respect of all shares of
Common Stock which are issued (whether originally issued or
transferred from the Company's treasury to any other Person)
after the filing of the Initial Charter Amendment pursuant to
K.S.A. Section 17-6003(d) but prior to the earlier of the Distribution
Date or the Expiration Date, or, in certain circumstances
provided in Section 22 hereof, after the Distribution Date.
Certificates representing such shares of Common Stock shall also
be deemed to be certificates for Rights, and shall bear the
following legend, and all references to Rights Agreement or
Rights in such legend appearing on certificates for Common Stock
issued prior to or after the time the Initial Charter Amendment
is filed pursuant to K.S.A. Section 17-6003(d) shall be deemed to refer
to this Amended and Restated Rights Agreement and the Rights
issued pursuant to this Amended and Restated Rights Agreement:
This certificate also evidences and
entitles the holder hereof to certain Rights
as set forth in a Rights Agreement (the "Rights
Agreement"), between Sprint Corporation (the
"Company") and UMB Bank, n.a. (the "Rights
Agent"), the terms of which are hereby
incorporated herein by reference and a copy
of which is on file at the principal offices
of the Rights Agent. Under certain
circumstances, as set forth in the Rights
Agreement, such Rights will be evidenced by
separate certificates and will no longer be
evidenced by this certificate. The Rights
Agent will mail to the holder of this
certificate a copy of the Rights Agreement,
as in effect on the date of mailing, without
charge promptly after receipt of a written
request therefor. Under certain
circumstances set forth in the Rights
Agreement, Rights issued to, or held by, any
Person who is, was or becomes an Acquiring
Person or any Affiliate or Associate thereof
(as such terms are defined in the Rights
Agreement), whether currently held by or on
behalf of such Person or by any subsequent
holder, may become null and void.
With respect to such certificates containing the foregoing
legend, until the earlier of (i) the Distribution Date or (ii)
the Expiration Date, the Rights associated with the Common Stock
represented by such certificates shall be evidenced by such
certificates alone and registered holders of Common Stock shall
also be the registered holders of the associated Rights, and the
transfer of any of such certificates shall also constitute the
transfer of the Rights associated with the Common Stock
represented by such certificates. In the event that the Company
purchases or otherwise acquires any shares of Common Stock prior
to the Distribution Date, any Rights associated with such shares
of Common Stock shall be deemed canceled and retired so that the
Company shall not be entitled to exercise any Rights associated
with the shares of Common Stock which are no longer outstanding.
Notwithstanding this paragraph (c), the omission of a legend
shall not affect the enforceability of any part of this Rights
Agreement or the rights of any holder of the Rights.
Section 4. Form of Rights Certificates.
(a) The FON Group Rights Certificates, PCS Group
Rights Certificates, Old Class A Rights Certificate and the
Series DT Rights Certificate (and the respective forms of
election to purchase and of assignment to be printed on the
reverse thereof) shall each be substantially in the form set
forth in Exhibits B-1, B-2, B-3 and B-4 hereto, respectively, and
in each case may have such marks of identification or designation
and such legends, summaries or endorsements printed thereon as
the Company may deem appropriate and as are not inconsistent with
the provisions of this Agreement, or as may be required to comply
with any applicable law or with any rule or regulation made
pursuant thereto or with any rule or regulation of any stock
exchange on which such Rights may from time to time be listed, or
to conform to usage. Subject to the provisions of Section 11 and
Section 22 hereof, (i) the FON Group Rights Certificates shall
entitle the holders thereof to purchase such number of one
one-thousandths of a share of Preferred Stock - Sixth Series as
shall be set forth therein at the price set forth therein which
price shall decrease after the filing of the Subsequent Charter
Amendment pursuant to K.S.A. Section 17-6003(d) to reflect the
Recapitalization (such exercise price per one one-thousandth of a
share, the "FON Purchase Price"), and (ii) the PCS Group Rights
Certificates shall entitle the holders thereof to purchase such
number of one one-thousandths of a share of Preferred Stock -
Eighth Series as shall be set forth therein at the price set
forth therein (such exercise price per one one-thousandth of a
share, the "PCS Purchase Price"), (iii) the Old Class A Rights
Certificates shall entitle the holders thereof to purchase (A) if
exercised prior to the filing of the Subsequent Charter Amendment
pursuant to K.S.A. Section 17-6003(d), such number of one one-
thousandths of a share of Preferred Stock - Sixth Series as shall
be set forth therein at the price set forth therein (such
exercise price per one one-thousandth of a share, the "Old Class
A Purchase Price"), which, during this time period, shall be
equal to the FON Purchase Price), and (B) if exercised after the
filing of the Subsequent Charter Amendment pursuant to K.S.A. Section
17-6003(d), such number of one one-thousandths of a share of
Preferred Stock - Sixth Series and such number of one one-
thousandths of a share of Preferred Stock - Eighth Series as
shall be set forth therein at the respective prices set forth
therein (such respective exercise price per one one-thousandth of
a share of the Preferred Stock - Sixth Series, the "Old Class A
Sixth Series Purchase Price", and per one one-thousandth of a
share of the Preferred Stock - Eighth Series, the "Old Class A
Eighth Series Purchase Price", which, during this time period,
shall be equal to the FON Purchase Price and the PCS Purchase
Price, respectively, and shall be referred to collectively as the
"Old Class A Purchase Price" (iv) the Series DT Rights
Certificates shall entitle the holders thereof to purchase (A) if
exercised prior to the filing of the Subsequent Charter Amendment
pursuant to K.S.A. Section 17-6003(d), such number of one one-
thousandths of a share of Preferred Stock - Sixth Series as shall
be set forth therein at the price set forth therein (such
exercise price per one one-thousandth of a share, the Old Class A
Purchase Price, which, during this time period, shall be equal to
the FON Purchase Price), and (B) if exercised after the filing of
the Subsequent Charter Amendment pursuant to K.S.A. Section 17-6003(d),
such number of one one-thousandths of a share of Preferred Stock
- - Sixth Series and such number of one-one thousandths of a share
of Preferred Stock - Eighth Series as shall be set forth therein
at the respective prices set forth therein (such respective
exercise price per one one-thousandth of a share of the Preferred
Stock - Sixth Series, the "Series DT Sixth Series Purchase
Price," and per one one-thousandth of a share of the Preferred
Stock - Eighth Series, the "Series DT Eighth Series Purchase
Price", which, during this time period, shall be equal to the FON
Purchase Price and the PCS Purchase Price, respectively), and
shall be referred to collectively as the "Series DT Purchase
Price" but the amount and type of securities purchasable upon the
exercise of each FON Group Right, each PCS Group Right, each Old
Class A Right, and each Series DT Right, and the respective
Purchase Price thereof, shall be subject to adjustment as
provided herein.
(b) Any Rights Certificate issued pursuant to Section
3(a) or Section 22 hereof that represents Rights beneficially
owned by: (i) an Acquiring Person or any Associate or Affiliate
of an Acquiring Person, (ii) a transferee of an Acquiring Person
(or of any such Associate or Affiliate) who becomes a transferee
after the Acquiring Person becomes such, or (iii) a transferee of
an Acquiring Person (or of any such Associate or Affiliate) who
becomes a transferee prior to or concurrently with the Acquiring
Person becoming such and receives such Rights pursuant to either
(A) a transfer (whether or not for consideration) from the
Acquiring Person to holders of equity interests in such Acquiring
Person or to any Person with whom such Acquiring Person has any
continuing agreement, arrangement or understanding regarding the
transferred Rights or (B) a transfer which the Board of Directors
of the Company has determined is part of a plan, arrangement or
understanding which has as a primary purpose or effect avoidance
of Section 7(e) hereof, and any Rights Certificate issued
pursuant to Section 6 or Section 11 hereof upon transfer,
exchange, replacement or adjustment of any other Rights
Certificate referred to in this sentence, shall contain (to the
extent feasible) the following legend:
The Rights represented by this Rights Certifi
cate are or were beneficially owned by a
Person who was or became an Acquiring Person
or an Affiliate or Associate of an Acquiring
Person (as such terms are defined in the
Rights Agreement). Accordingly, this Rights
Certificate and the Rights represented hereby
may become, or may already have become, null
and void in the circumstances specified in
Section 7(e) of such Agreement.
Section 5. Countersignature and Registration.
(a) The Rights Certificates shall be executed on
behalf of the Company by its Chairman of the Board, any Vice
Chairman, its President or any Vice President, either manually or
by facsimile signature, and shall have affixed thereto the
Company's seal or a facsimile thereof which shall be attested by
the Secretary or an Assistant Secretary of the Company, either
manually or by facsimile signature. The Rights Certificates
shall be countersigned by the Rights Agent, either manually or by
facsimile signature, and shall not be valid for any purpose
unless so countersigned. In case any officer of the Company who
shall have signed any of the Rights Certificates shall cease to
be such officer of the Company before countersignature by the
Rights Agent and issuance and delivery by the Company, such
Rights Certificates, nevertheless, may be countersigned by the
Rights Agent and issued and delivered by the Company with the
same force and effect as though the person who signed such Rights
Certificates had not ceased to be such officer of the Company;
and any Rights Certificates may be signed on behalf of the
Company by any person who, at the actual date of the execution of
such Rights Certificate, shall be a proper officer of the Company
to sign such Rights Certificate, although at the date of the
execution of this Rights Agreement any such person was not such
an officer.
(b) Following the Distribution Date, the Rights Agent
will keep or cause to be kept, at its principal office or offices
designated as the appropriate place for surrender of Rights
Certificates upon exercise or transfer, books for registration
and transfer of the Rights Certificates issued hereunder. Such
books shall show the names and addresses of the respective
holders of the Rights Certificates, the number of Rights
evidenced on its face by each of the Rights Certificates and the
date of each of the Rights Certificates.
Section 6. Transfer, Split Up, Combination and
Exchange of Rights Certificates;
Mutilated, Destroyed, Lost or Stolen
Rights Certificates.
(a) Subject to the provisions of Section 4(b), Section
7(e) and Section 14 hereof, at any time after the close of
business on the Distribution Date, and at or prior to the close
of business on the Expiration Date, (i) any FON Group Rights
Certificate or Certificates may be transferred, split up,
combined or exchanged for another FON Group Rights Certificate or
Certificates, entitling the registered holder to purchase a like
number of one one-thousandths of a share of Preferred Stock -
Sixth Series (or, following a Triggering Event, Common Stock of
the applicable class or series, other securities, cash or other
assets, as the case may be) as the FON Group Rights Certificate
or Certificates surrendered then entitled such holder (or former
holder in the case of a transfer) to purchase, (ii) any PCS Group
Rights Certificate or Certificates may be transferred, split up,
combined or exchanged for another PCS Group Rights Certificate or
Certificates, entitling the registered holder to purchase a like
number of one one-thousandths of a share of Preferred Stock -
Eighth Series (or, following a Triggering Event, Common Stock of
the applicable class or series, other securities, cash or other
assets, as the case may be) as the PCS Group Rights Certificate
or Certificates surrendered then entitled such holder (or former
holder in the case of a transfer) to purchase, (iii) any Old
Class A Rights Certificate or Certificates may be transferred,
split up, combined or exchanged for another Old Class A Rights
Certificate or Certificates, entitling the registered holder to
purchase a like number of one one-thousandths of a share of
Preferred Stock - Sixth Series and/or Preferred Stock - Eighth
Series, as the case may be (or, following a Triggering Event,
Common Stock of the applicable class or series, other securities,
cash or other assets, as the case may be) as the Old Class A
Rights Certificate or Certificates surrendered then entitled such
holder (or former holder in the case of a transfer) to purchase,
(iv) any Series DT Certificate or Certificates may be
transferred, split up, combined or exchanged for another Series
DT Rights Certificate or Certificates, entitling the registered
holder to purchase a like number of one one-thousandths of a
share of Preferred Stock - Sixth Series and/or Preferred Stock -
Eighth Series, as the case may be (or, following a Triggering
Event, Common Stock of the applicable class or series, other
securities, cash or other assets, as the case may be) as the
Series DT Rights Certificate or Certificates surrendered then
entitled such holder (or former holder in the case of a transfer)
to purchase. Any registered holder desiring to transfer, split
up, combine or exchange any Rights Certificate or Certificates
shall make such request in writing delivered to the Rights Agent,
and shall surrender the Rights Certificate or Certificates to be
transferred, split up, combined or exchanged at the principal
office or offices of the Rights Agent designated for such pur
pose. Neither the Rights Agent nor the Company shall be
obligated to take any action whatsoever with respect to the
transfer of any such surrendered Rights Certificate until the
registered holder shall have completed and signed the certificate
contained in the form of assignment on the reverse side of such
Rights Certificate and shall have provided such additional
evidence of the identity of the Beneficial Owner (or former
Beneficial Owner) or Affiliates or Associates thereof as the
Company shall reasonably request. Thereupon the Rights Agent
shall, subject to Section 4(b), Section 7(e) and Section 14
hereof, countersign and deliver to the Person entitled thereto a
Rights Certificate or Rights Certificates, as the case may be, as
so requested. The Company may require payment of a sum
sufficient to cover any tax or governmental charge that may be
imposed in connection with any transfer, split up, combination or
exchange of Rights Certificates.
(b) Subject to the provision of Section 4(b), Section
7(e) and Section 14 hereof, upon receipt by the Company and the
Rights Agent of evidence reasonably satisfactory to them of the
loss, theft, destruction or mutilation of a Rights Certificate,
and, in case of loss, theft or destruction, of indemnity or
security reasonably satisfactory to them, and reimbursement to
the Company and the Rights Agent of all reasonable expenses
incidental thereto, and upon surrender to the Rights Agent and
cancellation of the Rights Certificate if mutilated, the Company
will execute and deliver a new Rights Certificate of like tenor
to the Rights Agent for countersignature and delivery to the
registered owner in lieu of the Rights Certificate so lost,
stolen, destroyed or mutilated.
Section 7. Exercise of Rights; Purchase Price;
Expiration Date of Rights.
(a) Subject to Section 7(e) hereof, the registered
holder of any Rights Certificate may exercise the Rights
evidenced thereby (except as otherwise provided herein including,
without limitation, the restrictions on exercisability set forth
in Section 9(c), Section 11(a)(iii), Section 23(a) and Section
24(b) hereof) in whole or in part at any time after the
Distribution Date upon surrender of the applicable Rights
Certificate, with the form of election to purchase and the
certificate on the reverse side thereof duly executed, to the
Rights Agent at the principal office or offices of the Rights
Agent designated for such purpose, together with (i) in the case
of FON Group Rights, payment of the aggregate FON Purchase Price
with respect to the total number of one one-thousandths of a
share of Preferred Stock - Sixth Series (or other securities,
cash or other assets, as the case may be) as to which such
surrendered Rights are then exercisable, (ii) in the case of PCS
Group Rights, payment of the aggregate PCS Purchase Price with
respect to the total number of one one-thousandths of a share of
Preferred Stock - Eighth Series (or other securities, cash or
other assets, as the case may be) as to which such surrendered
Rights are then exercisable, (iii) in the case of Old Class A
Rights, payment of the aggregate Old Class A Purchase Price with
respect to the total number of one one-thousandths of a share of
Preferred Stock - Sixth Series, and/or Preferred Stock - Eighth
Series (or other securities, cash or other assets, as the case
may be) as to which such surrendered Rights are then exercisable,
or (iv) in the case of Series DT Rights, payment of the aggregate
Series DT Purchase Price with respect to the total number of one
one-thousandths of a share of Preferred Stock - Sixth Series
and/or Preferred Stock - Eighth Series (or other securities, cash
or other assets, as the case may be) as to which such surrendered
Rights are then exercisable, in the case of each of (i), (ii),
(iii) or (iv), at or prior to the earlier of (w) the close of
business on June 25, 2007 (the "Final Expiration Date"); (x) the
time at which the Rights are redeemed as provided in Section 23
hereof (the "Redemption Date"); (y) the time at which such Rights
are exchanged as provided in Section 24 hereof; or (z) the
consummation of a transaction contemplated by Section 13(d)
hereof (the earliest of (w), (x), (y) and (z) being herein
referred to as the "Expiration Date").
(b) The FON Purchase Price for each one one-thousandth
of a share of Preferred Stock - Sixth Series pursuant to the
exercise of a FON Group Right shall initially be $350.00
(provided that upon the filing of the Subsequent Charter
Amendment pursuant to K.S.A. Section 17-6003(d), the FON Purchase Price
shall decrease by an amount equal to one-half of the then current
PCS Purchase Price), and shall be subject to adjustment from time
to time as provided in Sections 11 and 13(a) hereof and shall be
payable in lawful money of the United States of America in
accordance with paragraph (c) below. The PCS Purchase Price for
each one one-thousandth of a share of Preferred Stock - Eighth
Series pursuant to the exercise of a PCS Group Right shall
initially be $150.00, and shall be subject to adjustment from
time to time as provided in Sections 11 and 13(a) hereof and
shall be payable in lawful money of the United States of America
in accordance with paragraph (c) below. The Old Class A Purchase
Price and the Series DT Purchase Price shall each correspond to
the applicable FON Purchase Price and the applicable PCS Purchase
Price as provided in Section 4(a) hereof, and shall be subject to
adjustment from time to time as provided in Sections 11 and 13(a)
hereof and shall be payable in lawful money of the United States
of America in accordance with paragraph (c) below.
(c) Upon receipt of a Rights Certificate representing
exercisable Rights, with the form of election to purchase and the
certificate duly executed, accompanied by payment, with respect
to each Right so exercised, of the Purchase Price per one
one-thousandth of a share of Preferred Stock (or other shares,
securities, cash or other assets, as the case may be) to be
purchased as set forth below and an amount equal to any
applicable transfer tax required to be paid by the holder of such
Rights Certificate in accordance with Section 9 hereof, the
Rights Agent shall, subject to Section 20(k) hereof, thereupon
promptly (i) (A) requisition from any transfer agent of the
shares of Preferred Stock (or make available, if the Rights Agent
is the transfer agent for such shares) certificates for the total
number of one one-thousandths of a share of Preferred Stock to be
purchased and the Company hereby irrevocably authorizes its
transfer agent to comply with all such requests, or (B) if the
Company shall have elected to deposit the total number of shares
of Preferred Stock issuable upon exercise of the Rights hereunder
with a depositary agent, requisition from the depositary agent
depositary receipts representing such number of one
one-thousandths of a share of Preferred Stock as are to be
purchased (in which case certificates for the shares of Preferred
Stock represented by such receipts shall be deposited by the
transfer agent with the depositary agent) and the Company will
direct the depositary agent to comply with such request, (ii)
requisition from the Company the amount of cash, if any, to be
paid in lieu of fractional shares in accordance with Section 14
hereof, (iii) promptly after receipt of such certificates or
depositary receipts, cause the same to be delivered to or upon
the order of the registered holder of such Rights Certificate,
registered in such name or names as may be designated by such
holder, and (iv) after receipt thereof, promptly deliver such
cash, if any, to or upon the order of the registered holder of
such Rights Certificate. The payment of the Purchase Price (as
such amount may be reduced pursuant to Section 11(a)(iii) hereof)
shall be made in cash or by certified bank check or bank draft
payable to the order of the Company. In the event that the
Company is obligated to issue other securities (including Common
Stock) of the Company, pay cash and/or distribute other property
pursuant to Section 11(a) hereof, the Company will make all
arrangements necessary so that such other securities, cash and/or
other property are available for distribution by the Rights
Agent, if and when appropriate. The Company reserves the right
to require, prior to the occurrence of a Triggering Event, that
upon any exercise of Rights, a number of Rights be exercised so
that only whole shares of Preferred Stock would be issued.
(d) In case the registered holder of any FON Group
Rights Certificate, PCS Group Rights Certificate, Old Class A
Rights Certificate, or Series DT Rights Certificate shall
exercise less than all the FON Group Rights, PCS Group Rights,
Old Class A Rights or Series DT Rights evidenced thereby,
respectively, a new FON Group Rights Certificate, PCS Group
Rights Certificate, Old Class A Rights Certificate, or Series DT
Rights Certificate evidencing FON Group Rights, PCS Group Rights,
Old Class A Rights or Series DT Rights equivalent to the
respective Rights remaining unexercised shall be issued by the
Rights Agent and delivered to, or upon the order of, the
registered holder of the FON Group Rights Certificate, PCS Group
Rights Certificate, Old Class A Rights Certificate, or Series DT
Rights Certificate, respectively, registered in such name or
names as may be designated by such holder, subject to the
provisions of Section 14 hereof.
(e) Notwithstanding anything in this Agreement to the
contrary, from and after the first occurrence of a Section
11(a)(ii) Event, any Rights beneficially owned by (i) an
Acquiring Person or an Associate or Affiliate of an Acquiring
Person, (ii) a transferee of an Acquiring Person (or of any such
Associate or Affiliate) who becomes a transferee after the
Acquiring Person becomes such, or (iii) a transferee of an
Acquiring Person (or of any such Associate or Affiliate) who
becomes a transferee prior to or concurrently with the Acquiring
Person becoming such and receives such Rights pursuant to either
(A) a transfer (whether or not for consideration) from the
Acquiring Person to holders of equity interests in such Acquiring
Person or to any Person with whom the Acquiring Person has any
continuing agreement, arrangement or understanding regarding the
transferred Rights or (B) a transfer which the Board of Directors
of the Company has determined is part of a plan, arrangement or
understanding which has as a primary purpose or effect the
avoidance of this Section 7(e), shall become null and void
without any further action and no holder of such Rights shall
have any rights whatsoever with respect to such Rights, whether
under any provision of this Agreement or otherwise. The Company
shall use all reasonable efforts to ensure that the provisions of
this Section 7(e) and Section 4(b) hereof are complied with, but
neither the Company nor the Rights Agent shall have any liability
to any holder of Rights Certificates or other Person as a result
of the Company's failure to make any determinations with respect
to an Acquiring Person or its Affiliates, Associates or
transferees hereunder. The Company may require (or cause the
Rights Agent or any transfer agent of the Company to require) any
Person who submits a Rights Certificate (or a certificate
representing shares of Common Stock that evidences, or but for
the provisions of this Section 7(e) would evidence, Rights) for
transfer on the registry books or to exercise the Rights
represented thereby to establish to the satisfaction of the
Company in its sole discretion that such Rights have not become
null and void pursuant to the provisions of this Section 7(e).
(f) Notwithstanding anything in this Agreement to the
contrary, neither the Rights Agent nor the Company shall be
obligated to undertake any action with respect to a registered
holder upon the occurrence of any purported exercise as set forth
in this Section 7 unless such registered holder shall have (i)
completed and signed the certificate contained in the form of
election to purchase set forth on the reverse side of the FON
Group Rights Certificate, PCS Group Rights Certificate, Old Class
A Rights Certificate, or Series DT Rights Certificate, as the
case may be, surrendered for such exercise, and (ii) provided
such additional evidence of the identity of the Beneficial Owner
(or former Beneficial Owner) or Affiliates or Associates thereof
as the Company shall reasonably request.
Section 8. Cancellation and Destruction of Rights
Certificates. All Rights Certificates surrendered for the
purpose of exercise, transfer, split up, combination or exchange
shall, if surrendered to the Company or any of its agents, be
delivered to the Rights Agent for cancellation or in canceled
form, or, if surrendered to the Rights Agent, shall be canceled
by it, and no Rights Certificates shall be issued in lieu thereof
except as expressly permitted by any of the provisions of this
Agreement. The Company shall deliver to the Rights Agent for
cancellation and retirement, and the Rights Agent shall so cancel
and retire, any other Rights Certificate purchased or acquired by
the Company otherwise than upon the exercise thereof. The Rights
Agent shall deliver all canceled Rights Certificates to the
Company, or shall, at the written request of the Company, destroy
such canceled Rights Certificates, and in such case shall deliver
a certificate of destruction thereof to the Company.
Section 9. Reservation and Availability of Capital
Stock.
(a) The Company covenants and agrees that it will
cause to be reserved and kept available out of its authorized and
unissued shares of Preferred Stock (and, following the occurrence
of a Triggering Event, out of its authorized and unissued shares
of Common Stock and/or other securities or out of its authorized
and issued shares held in its treasury), the number of shares of
the applicable series of Preferred Stock (and, following the
occurrence of a Triggering Event, the applicable class or series
of Common Stock and/or other securities) that, as provided in
this Agreement, including Section 11(a)(iii) hereof, will be
sufficient to permit the exercise in full of all outstanding
Rights.
(b) So long as the shares of Preferred Stock (and,
following the occurrence of a Triggering Event, Common Stock
and/or other securities) issuable and deliverable upon the
exercise of the Rights may be listed on any national securities
exchange, the Company shall use its best efforts to cause, from
and after such time as the Rights become exercisable (but only to
the extent that it is reasonably likely that the Rights will be
exercised), all shares reserved for such issuance to be listed on
such exchange upon official notice of issuance upon such
exercise.
(c) The Company shall use its best efforts to (i)
file, as soon as practicable following the earliest date after
the first occurrence of a Section 11(a)(ii) Event on which the
consideration to be delivered by the Company upon exercise of the
Rights has been determined in accordance with Section 11(a)(iii)
hereof, a registration statement under the Act, with respect to
the securities purchasable upon exercise of the Rights on an
appropriate form, (ii) cause such registration statement to
become effective as soon as practicable after such filing, and
(iii) cause such registration statement to remain effective (with
a prospectus at all times meeting the requirements of the Act)
until the earlier of (A) the date as of which the Rights are no
longer exercisable for such securities, and (B) the Expiration
Date. The Company will also take such action as may be
appropriate under, or to ensure compliance with, the securities
or "blue sky" laws of the various states in connection with the
exercisability of the Rights. The Company may temporarily
suspend, for a period of time not to exceed ninety (90) days
after the date set forth in clause (i) of the first sentence of
this Section 9(c), the exercisability of the Rights in order to
prepare and file such registration statement and permit it to
become effective. Upon any such suspension, the Company shall
make a public announcement stating that the exercisability of the
Rights has been temporarily suspended, as well as a public
announcement at such time as the suspension is no longer in
effect. In addition, if the Company shall determine that a
registration statement is required following the Distribution
Date, the Company may temporarily suspend the exercisability of
the Rights until such time as a registration statement has been
declared effective. Notwithstanding any provision of this Agree
ment to the contrary, the Rights shall not be exercisable in any
jurisdiction if the requisite qualification in such jurisdiction
shall not have been obtained, the exercise thereof shall not be
permitted under applicable law or a registration statement (if
required) shall not have been declared effective.
(d) The Company covenants and agrees that it will take
all such action as may be necessary to ensure that all Preferred
Stock (and, following the occurrence of a Triggering Event,
Common Stock and/or other securities) delivered upon exercise or
exchange of the Rights shall, at the time of delivery of the
certificates for such shares (subject to payment of the Purchase
Price), be duly and validly authorized and issued and fully paid
and nonassessable, including, without limitation, effecting such
changes to the accounts of the Company as may be necessary to
accomplish the foregoing purposes.
(e) The Company further covenants and agrees that it
will pay when due and payable any and all federal and state
transfer taxes and charges which may be payable in respect of the
issuance or delivery of the Rights Certificates and of any
certificates for Preferred Stock (or Common Stock and/or other
securities, as the case may be) upon the exercise of Rights. The
Company shall not, however, be required to pay any transfer tax
which may be payable in respect of any transfer or delivery of
Rights Certificates to a Person other than, or the issuance or
delivery of certificates or depositary receipts for a number of
one one-thousandths of a share of Preferred Stock (or Common
Stock and/or other securities, as the case may be) in respect of
a name other than that of, the registered holder of the Rights
Certificates evidencing Rights surrendered for exercise or to
issue or deliver any certificates or depositary receipts for a
number of one one-thousandths of a share of Preferred Stock (or
Common Stock and/or other securities, as the case may be) in a
name other than that of the registered holder upon the exercise
of any Rights until such tax shall have been paid (any such tax
being payable by the holder of such Rights Certificate at the
time of surrender) or until it has been established to the
Company's satisfaction that no such tax is due.
Section 10. Preferred Stock Record Date. Each
person in whose name any certificate for a number of one
one-thousandths of a share of Preferred Stock (or Common Stock
and/or other securities, as the case may be) is issued upon the
exercise of Rights shall for all purposes be deemed to have
become the holder of record of such fractional shares of
Preferred Stock (or Common Stock and/or other securities, as the
case may be) represented thereby on, and such certificate shall
be dated, the date upon which the Rights Certificate evidencing
such Rights was duly surrendered and payment of the Purchase
Price (and all applicable transfer taxes) was made; provided,
however, that if the date of such surrender and payment is a date
upon which the Preferred Stock (or Common Stock and/or other
securities, as the case may be) transfer books of the Company are
closed, such Person shall be deemed to have become the record
holder of such shares (fractional or otherwise) on, and such
certificate shall be dated, the next succeeding Business Day on
which the Preferred Stock (or Common Stock and/or other
securities, as the case may be) transfer books of the Company are
open. Prior to the exercise of the Rights evidenced thereby, the
holder of a Rights Certificate shall not be entitled to any
rights of a stockholder of the Company with respect to shares for
which the Rights shall be exercisable, including, without
limitation, the right to vote, to receive dividends or other
distributions or to exercise any preemptive rights, and shall not
be entitled to receive any notice of any proceedings of the
Company, except as provided herein.
Section 11. Adjustment of Purchase Price, Number and
Kind of Shares or Number of Rights. The Purchase Price, the
number and kind of shares covered by each Right and the number of
Rights outstanding are subject to adjustment from time to time as
provided in this Section 11.
(a) (i) In the event the Company shall at any
time after the filing of the Initial Charter Amendment (A)
declare a dividend on the applicable series of Preferred
Stock payable in shares of such series of Preferred Stock,
(B) subdivide the outstanding applicable series of Preferred
Stock, (C) combine the outstanding applicable series of
Preferred Stock into a smaller number of shares, or (D)
issue any shares of its capital stock in a reclassification
of the applicable series of Preferred Stock (including any
such reclassification in connection with a consolidation or
merger in which the Company is the continuing or surviving
corporation), except as otherwise provided in this Section
11(a) and Section 7(e) hereof, the applicable Purchase Price
in effect at the time of the record date for such dividend
or of the effective date of such subdivision, combination or
reclassification, and the number and kind of shares of the
applicable series of Preferred Stock or capital stock, as
the case may be, issuable on such date, shall be
proportionately adjusted so that the holder of any Right
exercised after such time shall be entitled to receive, upon
payment of the applicable Purchase Price then in effect, the
aggregate number and kind of shares of the applicable series
of Preferred Stock or capital stock, as the case may be,
which, if such Right had been exercised immediately prior to
such date and at a time when such series of Preferred Stock
transfer books of the Company were open, he would have owned
upon such exercise and been entitled to receive by virtue of
such dividend, subdivision, combination or reclassification.
If an event occurs which would require an adjustment under
both this Section 11(a)(i) and Section 11(a)(ii) hereof, the
adjustment provided for in this Section 11(a)(i) shall be in
addition to, and shall be made prior to, any adjustment
required pursuant to Section 11(a)(ii) hereof.
(ii) Subject to Section 24 hereof, in the event
any Person (other than the Company, any Subsidiary of the
Company, any employee benefit plan of the Company or of any
Subsidiary of the Company, or any Person or entity
organized, appointed or established by the Company for or
pursuant to the terms of any such plan), alone or together
with its Affiliates and Associates, shall, at any time after
the filing of the Initial Charter Amendment pursuant to
K.S.A. Section 17-6003(d), become an Acquiring Person, unless such
person becomes an Acquiring Person pursuant to a transaction
set forth in Section 13(a) hereof (such an event being
referred to herein as "a Section 11(a)(ii) Event") then,
promptly following the occurrence of such Section 11(a)(ii)
Event, proper provision shall be made so that (except as
provided below and in Section 7(e) hereof),
(w) each holder of a FON Group Right shall
thereafter have the right to receive, upon exercise
thereof at the then current FON Purchase Price in
accordance with the terms of this Agreement, in lieu of
a number of one one-thousandths of a share of Preferred
Stock - Sixth Series, such number of shares of the
applicable class or series of FON Group Common Stock as
shall equal the result obtained by (A) multiplying the
then current FON Purchase Price by the then number of
one one-thousandths of a share of Preferred Stock -
Sixth Series for which a FON Group Right was
exercisable (or, if the Distribution Date shall not
have occurred prior to the date of such Section
11(a)(ii) Event, the number of one one-thousandths of a
share of Preferred Stock - Sixth Series for which a FON
Group Right would have been exercisable if the
Distribution Date had occurred on the Business Day
immediately preceding the date of such Section
11(a)(ii) Event) immediately prior to the first
occurrence of a Section 11(a)(ii) Event, and
(B) dividing that product (which, following such first
occurrence, shall thereafter be referred to as the "FON
Purchase Price" for each FON Group Right and for all
purposes of this Agreement) by 50% of the Current
Market Price (determined pursuant to Section 11(d)
hereof) per share of the applicable class or series of
FON Group Common Stock on the date of such first
occurrence (such number of shares, the "FON Adjustment
Shares"); which shares shall be distributed in the same
class or series of FON Group Common Stock as the holder
of the FON Group Right was the record holder on the
date of the first occurrence of a Section 11(a)(ii)
Event,
(x) each holder of a PCS Group Right shall
thereafter have the right to receive, upon exercise
thereof at the then current PCS Purchase Price in
accordance with the terms of this Agreement, in lieu of
a number of shares of one one-thousandth of a share of
Preferred Stock - Eighth Series, such number of shares
of the applicable class or series of PCS Group Common
Stock as shall equal the result obtained by (C)
multiplying the then current PCS Purchase Price by the
number of one one-thousandths of a share of Preferred
Stock - Eighth Series for which a PCS Group Right was
exercisable (or, if the Distribution Date shall not
have occurred prior to the date of such Section
11(a)(ii) Event, the number of one one-thousandths of a
share of Preferred Stock - Eighth Series for which a
PCS Group Right would have been exercisable if the
Distribution Date had occurred on the Business Day
immediately preceding the date of such Section
11(a)(ii) Event) immediately prior to the first
occurrence of a Section 11(a)(ii) Event, and (D)
dividing that product (which, following such first
occurrence, shall thereafter be referred to as the "PCS
Purchase Price" for each PCS Group Right and for all
purposes of this Agreement) by 50% of the Current
Market Price (determined pursuant to Section 11(d)
hereof) per share of the applicable class or series of
PCS Group Common Stock on the date of such first
occurrence (such number of shares, the "PCS Adjustment
Shares"); which shares shall be distributed in the same
class or series as the holder of the PCS Group Right
was the record holder on the date of the first
occurrence of a Section 11(a)(ii) Event,
(y) each holder of a Old Class A Right shall
thereafter have the right to receive, upon exercise
thereof,
(1) to the extent theretofore
exercisable for Preferred Stock - Sixth Series (or
would have been exercisable if the Distribution
Date had occurred on the Business Day immediately
preceding the date of such Section 11(a)(ii)
Event) at the then current Old Class A Sixth
Series Purchase Price in accordance with the terms
of this Agreement, in lieu of a number of one one-
thousandths of a share of Preferred Stock - Sixth
Series, such number of shares of Old Class A
Common Stock (if prior to the filing of the
Subsequent Charter Amendment pursuant to K.S.A.
Section 17-6003(d)) or Series 3 FON Stock (if after
the filing of the Subsequent Charter Amendment
pursuant to K.S.A. Section 17-6003(d)) as shall equal
the result obtained by (E) multiplying the then
current Old Class A Sixth Series Purchase Price by
the then number of one one-thousandths of a share
of Preferred Stock - Sixth Series for which an Old
Class A Right was exercisable (or, if the
Distribution Date shall not have occurred prior to
the date of such Section 11(a)(ii) Event, the
number of one one-thousandths of a share of
Preferred Stock - Sixth Series for which an Old
Class A Right would have been exercisable if the
Distribution Date had occurred on the Business Day
immediately preceding the date of such Section
11(a)(ii) Event) immediately prior to the first
occurrence of a Section 11(a)(ii) Event, and
(F) dividing that product (which, following such
first occurrence, shall thereafter be referred to
as the "Old Class A Sixth Series Purchase Price"
for each Old Class A Right and for all purposes of
this Agreement) by 50% of the Current Market Price
(determined pursuant to Section 11(d) hereof) per
share of the Old Class A Common Stock (if prior to
the filing of the Subsequent Charter Amendment
pursuant to K.S.A. Section 17-6003(d)) or Series 3 FON
Stock (if after the filing of the Subsequent
Charter Amendment pursuant to K.S.A. Section 17-6003(d))
on the date of such first occurrence (such number
of shares, the "Old Class A Right FON Adjustment
Shares");
(2) to the extent theretofore
exercisable for Preferred Stock - Eighth Series
(or would have been exercisable if the
Distribution Date had occurred on the Business Day
immediately preceding the date of such Section
11(a)(ii) Event) at the then current Old Class A
Eighth Series Purchase Price in accordance with
the terms of this Agreement, in lieu of a number
of shares of one one-thousandth of a share of
Preferred Stock - Eighth Series, such number of
shares Old Class A Common Stock (if prior to the
filing of the Subsequent Charter Amendment
pursuant to K.S.A. Section 17-6003(d)) or Series 3 PCS
Stock (if after the filing of the Subsequent
Charter Amendment pursuant to K.S.A. Section 17-6003(d))
as shall equal the result obtained by
(G) multiplying the then current Old Class A
Eighth Series Purchase Price by the number of one
one-thousandths of a share of Preferred Stock -
Eighth Series for which an Old Class A Right was
exercisable (or, if the Distribution Date shall
not have occurred prior to the date of such
Section 11(a)(ii) Event, the number of one one-
thousandths of a share of Preferred Stock - Eighth
Series for which an Old Class A Right would have
been exercisable if the Distribution Date had
occurred on the Business Day immediately preceding
the date of such Section 11(a)(ii) Event)
immediately prior to the first occurrence of a
Section 11(a)(ii) Event, and (H) dividing that
product (which, following such first occurrence,
shall thereafter be referred to as the "Old Class
A Eighth Series Purchase Price" for each Old Class
A Right and for all purposes of this Agreement) by
50% of the Current Market Price (determined
pursuant to Section 11(d) hereof) per share of the
Series 3 PCS Stock on the date of such first
occurrence (such number of shares, the "Old Class
A PCS Adjustment Shares");
(z) each holder of a Series DT Right shall
thereafter have the right to receive, upon exercise
thereof,
(1) to the extent theretofore
exercisable for Preferred Stock - Sixth Series (or
would have been exercisable if the Distribution
Date had occurred on the Business Day immediately
preceding the date of such Section 11(a)(ii)
Event) at the then current Series DT Sixth Series
Purchase Price in accordance with the terms of
this Agreement, in lieu of a number of one one-
thousandths of a share of Preferred Stock - Sixth
Series, such number of shares of Class A Common
Stock - Series DT (if prior to the filing of the
Subsequent Charter Amendment pursuant to K.S.A.
Section 17-6003(d)) or Series 3 FON Stock (if after
the filing of the Subsequent Charter Amendment
pursuant to K.S.A. Section 17-6003(d)) as shall equal
the result obtained by (I) multiplying the then
current Series DT Sixth Series Purchase Price by
the then number of one one-thousandths of a share
of Preferred Stock - Sixth Series for which a
Series DT Right was exercisable (or, if the
Distribution Date shall not have occurred prior to
the date of such Section 11(a)(ii) Event, the
number of one one-thousandths of a share of
Preferred Stock - Sixth Series for which a Series
DT Right would have been exercisable if the
Distribution Date had occurred on the Business Day
immediately preceding the date of such Section
11(a)(ii) Event) immediately prior to the first
occurrence of a Section 11(a)(ii) Event, and
(J) dividing that product (which, following such
first occurrence, shall thereafter be referred to
as the "Series DT Sixth Series Purchase Price" for
each Series DT Right and for all purposes of this
Agreement) by 50% of the Current Market Price
(determined pursuant to Section 11(d) hereof) per
share of the Class A Common Stock - Series DT (if
prior to the filing of the Subsequent Charter
Amendment pursuant to K.S.A. Section 17-6003(d)) or
Series 3 FON Stock (if after the filing of the
Subsequent Charter Amendment pursuant to K.S.A. Section
17-6003(d)) on the date of such first occurrence
(such number of shares, the "Series DT Right FON
Adjustment Shares");
(2) to the extent theretofore
exercisable for Preferred Stock - Eighth Series
(or would have been exercisable if the
Distribution Date had occurred on the Business Day
immediately preceding the date of such Section
11(a)(ii) Event) at the then current Series DT
Eighth Series Purchase Price in accordance with
the terms of this Agreement, in lieu of a number
of shares of one one-thousandth of a share of
Preferred Stock - Eighth Series, such number of
shares Class A Common Stock - Series DT (if prior
to the filing of the Subsequent Charter Amendment
pursuant to K.S.A. Section 17-6003(d)) or Series 3 PCS
Stock (if after the filing of the Subsequent
Charter Amendment pursuant to K.S.A. Section 17-6003(d))
as shall equal the result obtained by
(K) multiplying the then current Series DT Eighth
Series Purchase Price by the number of one one-
thousandths of a share of Preferred Stock -
Eighth Series for which a Series DT Right was
exercisable (or, if the Distribution Date shall
not have occurred prior to the date of such
Section 11(a)(ii) Event, the number of one one-
thousandths of a share of Preferred Stock - Eighth
Series for which a Series DT Right would have been
exercisable if the Distribution Date had occurred
on the Business Day immediately preceding the date
of such Section 11(a)(ii) Event) immediately prior
to the first occurrence of a Section 11(a)(ii)
Event, and (L) dividing that product (which,
following such first occurrence, shall thereafter
be referred to as the "Series DT Eighth Series
Purchase Price" for each Series DT Right and for
all purposes of this Agreement) by 50% of the
Current Market Price (determined pursuant to
Section 11(d) hereof) per share of the Series 3
PCS Stock on the date of such first occurrence
(such number of shares, the "Series DT PCS
Adjustment Shares");
(iii) Subject to such limitations existing as
of the date hereof as are necessary to prevent a default
under any agreement to which the Company is a party, in the
event that the number of shares of FON Group Common Stock,
PCS Group Common Stock or Class A Common Stock which are
authorized but not outstanding or reserved for issuance for
purposes other than upon exercise of the FON Group Rights,
PCS Group Rights, Old Class A Rights, or Series DT Rights,
as the case may be, is less than the aggregate number of FON
Adjustment Shares, PCS Adjustment Shares, Old Class A
Adjustment Shares or Series DT Adjustment Shares issuable
upon the exercise in full of the FON Group Rights, PCS Group
Rights, Old Class A Rights, or Series DT Rights, as the case
may be, in accordance with the foregoing subparagraph (ii)
of this Section 11(a), the Company shall (A) determine the
excess of (1) the value of the applicable Adjustment Shares
issuable upon the exercise of a Right determined as set
forth below (the "Current Value") over (2) the applicable
Purchase Price (such excess, the "Spread"), and (B) with re
spect to each Right (subject to Section 7(e) hereof), make
adequate provision to substitute for the applicable
Adjustment Shares, upon the exercise of a Right and payment
of the applicable Purchase Price, (1) cash, (2) a reduction
in the applicable Purchase Price, (3) Common Stock or other
equity securities of the Company (including, without
limitation, shares, or units of shares, of preferred stock,
such as the Preferred Stock, which the Board has deemed to
have essentially the same value or economic rights as a
share of the applicable class or series of FON Group Common
Stock, PCS Group Common Stock, or Class A Common Stock, as
applicable (such shares of preferred stock being referred to
as "Common Stock Equivalents")), (4) debt securities of the
Company, (5) other assets, or (6) any combination of the
foregoing, having an aggregate value equal to the Current
Value (less the amount of any reduction in the applicable
Purchase Price), where such aggregate value has been
determined by the Board based upon the advice of a
nationally recognized investment banking firm selected by
the Board; provided, however, that if the Company shall not
have made adequate provision to deliver value pursuant to
clause (B) above within thirty days following the date on
which the Company's right of redemption pursuant to Section
23(a) expires (such date being referred to herein as the
"Section 11(a)(ii) Trigger Date"), then the Company shall be
obligated to deliver, (w) upon the surrender for exercise of
a FON Group Right and without requiring payment of the FON
Purchase Price (other than an amount equal to the par value
of the shares of FON Group Common Stock to be issued),
shares of the applicable class or series of FON Group Common
Stock (to the extent available) and then, if necessary,
cash, which shares and/or cash have an aggregate value equal
to the Spread, (x) upon the surrender for exercise of a PCS
Group Right and without requiring payment of the PCS
Purchase Price (other than an amount equal to the par value
of the shares of PCS Group Common Stock to be issued),
shares of the applicable class or series of PCS Group Common
Stock (to the extent available) and then, if necessary,
cash, which shares and/or cash have an aggregate value equal
to the Spread, (y) upon the surrender for exercise of an
Old Class A Right and without requiring payment of the
applicable Old Class A Purchase Price (other than an amount
equal to the par value of the shares to be issued), shares
of Old Class A Common Stock, Series 3 FON Stock or Series 3
PCS Stock, as the case may be (to the extent available) and
then, if necessary, cash, which shares and/or cash have an
aggregate value equal to the Spread, and (z) upon the
surrender for exercise of a Series DT Right and without
requiring payment of the applicable Series DT Purchase Price
(other than an amount equal to the par value of the shares
to be issued) shares of Class A Common Stock - Series DT,
Series 3 FON Stock or Series 3 PCS Stock, as the case may be
(to the extent available), and then, if necessary, cash,
which shares and/or cash have an aggregate value equal to
the Spread. If the Board determines in good faith that it
is likely that sufficient additional shares of Common Stock
could be authorized for issuance upon exercise in full of
the Rights, the thirty day period set forth above may be
extended to the extent necessary, but not more than ninety
days after the Section 11(a)(ii) Trigger Date, in order that
the Company may seek shareholder approval for the
authorization of such additional shares (such thirty day
period, as it may be extended, is herein called the "Sub
stitution Period"). To the extent that action is to be
taken pursuant to the first and/or second sentences of this
Section 11(a) (iii), the Company (1) shall provide, subject
to Section 7(e) hereof, that such action shall apply
uniformly to all outstanding Rights, and (2) may suspend the
exercisability of the Rights until the expiration of the
Substitution Period in order to seek such shareholder
approval for such authorization of additional shares and/or
to decide the appropriate form of distribution to be made
pursuant to such first sentence and to determine the value
thereof. In the event of any such suspension, the Company
shall make a public announcement stating that the exerci
sability of the Rights has been temporarily suspended, as
well as a public announcement at such time as the suspension
is no longer in effect. For purposes of this Section 11(a)
(iii), the Current Value of each Adjustment Share of the
applicable class or series shall be the Current Market Price
per share of the Common Stock of such class or series on the
Section 11(a)(ii) Trigger Date and the per share or per unit
value of any Common Stock Equivalent to such Common Stock
shall be deemed to equal the Current Market Price per share
of such Common Stock on such date.
(iv) Notwithstanding anything in Section 11(a)(ii)
to the contrary, there shall not be deemed to have occurred
a Section 11(a)(ii) Event if a Person shall have
inadvertently become the Beneficial Owner of Voting
Securities of the Company then outstanding representing 15%
or more of the Voting Power of the Company (or in the case
of the FT/DT Parties (individually or in the aggregate),
shares in excess of the FT/DT Permitted Level) and within
ten Business Days after the date upon which the Company
shall first become aware of the occurrence of such an event,
the Board of Directors in its sole discretion (1) approves
the beneficial ownership interest then held by such Person
or the FT/DT Parties (individually and in the aggregate), or
(2) provides such Person or the FT/DT Parties a thirty day
period to divest a sufficient number of Voting Securities so
as to decrease the beneficial ownership of such Person to
less than 15% of the Voting Power of the Company (or in the
case of the FT/DT Parties (individually or in the
aggregate), to not more than the FT/DT Permitted Level) and
such Person or the FT/DT Parties have so divested at the end
of any such thirty day period.
(b) In case the Company shall fix a record date
for the issuance of rights, options or warrants to all
holders of the applicable Preferred Stock entitling them to
subscribe for or purchase (for a period expiring within
forty-five (45) calendar days after such record date) such
Preferred Stock (or shares having the same rights, privi
leges and preferences as the shares of such Preferred Stock
("equivalent preferred stock")) or securities convertible
into such Preferred Stock or equivalent preferred stock at a
price per share of such Preferred Stock or per share of
equivalent preferred stock (or having a conversion price per
share, if a security convertible into Preferred Stock or
equivalent preferred stock) less than the Current Market
Price (as determined pursuant to Section 11(d) hereof) per
share of such Preferred Stock on such record date, the
Purchase Price to be in effect after such record date shall
be determined by multiplying the Purchase Price in effect
immediately prior to such record date by a fraction, the
numerator of which shall be the number of shares of such
Preferred Stock and equivalent preferred stock outstanding
on such record date, plus the number of shares of such
Preferred Stock and equivalent preferred stock which the
aggregate offering price of the total number of shares of
such Preferred Stock and/or equivalent preferred stock so to
be offered (and/or the aggregate initial conversion price of
the convertible securities so to be offered) would purchase
at such Current Market Price, and the denominator of which
shall be the number of shares of such Preferred Stock and
equivalent preferred stock outstanding on such record date,
plus the number of additional shares of such Preferred Stock
and/or equivalent preferred stock to be offered for
subscription or purchase (or into which the convertible
securities so to be offered are initially convertible). In
case such subscription price may be paid by delivery of
consideration part or all of which may be in a form other
than cash, the value of such consideration shall be as deter
mined in good faith by the Board of Directors of the
Company, whose determination shall be described in a
statement filed with the Rights Agent and shall be binding
on the Rights Agent and the holders of the Rights. Shares
of Preferred Stock and preferred stock equivalents owned by
or held for the account of the Company shall not be deemed
outstanding for the purpose of any such computation. Such
adjustment shall be made successively whenever such a record
date is fixed, and in the event that such rights, options or
warrants are not so issued, the Purchase Price shall be
adjusted to be the Purchase Price which would then be in
effect if such record date had not been fixed.
(c) (i) In case the Company shall fix a record
date for a distribution to all holders of Preferred Stock -
Sixth Series (including any such distribution made in
connection with a consolidation or merger in which the
Company is the continuing corporation) of evidences of
indebtedness, cash (other than a regular quarterly cash
dividend out of the earnings or retained earnings of the
Company), assets (other than a dividend payable in Preferred
Stock - Sixth Series, but including any dividend payable in
stock other than Preferred Stock - Sixth Series) or
subscription rights or warrants (excluding those referred to
in Section 11(b) hereof), (A) the FON Purchase Price to be
in effect after such record date shall be determined by
multiplying the FON Purchase Price in effect immediately
prior to such record date by a fraction, the numerator of
which shall be the Current Market Price (as determined
pursuant to Section 11(d) hereof) per share of Preferred
Stock - Sixth Series on such record date, less the fair
market value (as determined in good faith by the Board of
Directors of the Company, whose determination shall be de
scribed in a statement filed with the Rights Agent) of the
portion of the cash, assets or evidences of indebtedness so
to be distributed or of such subscription rights or warrants
applicable to a share of Preferred Stock - Sixth Series and
the denominator of which shall be such Current Market Price
(as determined pursuant to Section 11(d) hereof) per share
of Preferred Stock - Sixth Series and, (B) the Old Class A
Sixth Series Purchase Price and the Series DT Sixth Series
Purchase Price shall each be determined in the same manner
as the FON Purchase Price as set forth in clause (A) above.
Such adjustments shall be made successively whenever such a
record date is fixed, and in the event that such
distribution is not so made, the FON Purchase Price (and the
Old Class A Sixth Series Purchase Price and the Series DT
Sixth Series Purchase Price) shall be adjusted to be the FON
Purchase Price (and the Old Class A Sixth Series Purchase
Price and the Series DT Sixth Series Purchase Price,
respectively) which would have been in effect if such record
date had not been fixed.
(ii) In case the Company shall fix a record
date for a distribution to all holders of Preferred Stock -
Eighth Series (including any such distribution made in
connection with a consolidation or merger in which the
Company is the continuing corporation) of evidences of
indebtedness, cash (other than a regular quarterly cash
dividend out of the earnings or retained earnings of the
Company), assets (other than a dividend payable in Preferred
Stock - Eighth Series, but including any dividend payable in
stock other than Preferred Stock - Eighth Series) or
subscription rights or warrants (excluding those referred to
in Section 11(b) hereof), (A) the PCS Purchase Price to be
in effect after such record date shall be determined by
multiplying the PCS Purchase Price in effect immediately
prior to such record date by a fraction, the numerator of
which shall be the Current Market Price (as determined
pursuant to Section 11(d) hereof) per share of Preferred
Stock - Eighth Series on such record date, less the fair
market value (as determined in good faith by the Board of
Directors of the Company, whose determination shall be de
scribed in a statement filed with the Rights Agent) of the
portion of the cash, assets or evidences of indebtedness so
to be distributed or of such subscription rights or warrants
applicable to a share of Preferred Stock - Eighth Series and
the denominator of which shall be such Current Market Price
(as determined pursuant to Section 11(d) hereof) per share
of Preferred Stock - Eighth Series, and (B) the Old Class A
Eighth Series Purchase Price and the Series DT Eighth Series
shall each be determined in the same manner as the PCS
Purchase Price as set forth in clause (A) above. Such
adjustments shall be made successively whenever such a
record date is fixed, and in the event that such
distribution is not so made, the PCS Purchase Price (and the
Old Class A Eighth Series Purchase Price, and the Series DT
Eighth Series Purchase Price) shall be adjusted to be the
PCS Purchase Price (and the Old Class A Eighth Series
Purchase Price, and the Series DT Eighth Series Purchase
Price, respectively) which would have been in effect if such
record date had not been fixed.
((d) (i) For the purpose of any computation
hereunder, other than computations made pursuant to Section
11(a)(iii) hereof, the Current Market Price per share of the
applicable class or series of Common Stock on any date shall
be deemed to be the average of the daily closing prices per
share of such class or series of Common Stock for the thirty
consecutive Trading Days immediately prior to such date, and
for purposes of computations made pursuant to Section
11(a)(iii) hereof, the Current Market Price per share of the
applicable class or series of Common Stock on any date shall
be deemed to be the average of the daily closing prices per
share of such class or series of Common Stock for the ten
consecutive Trading Days immediately following such date;
provided, however, that in the event that the Current Market
Price per share of the applicable class or series of Common
Stock is determined during a period following the
announcement by the issuer of such class or series of Common
Stock of (A) a dividend or distribution on such class or
series of Common Stock payable in shares of such class or
series of Common Stock or securities convertible into shares
of such class or series of Common Stock (other than the
Rights), or (B) any subdivision, combination or
reclassification of such class or series of Common Stock,
and the ex-dividend or ex-distribution date for such
dividend or distribution, or the record date for such
subdivision, combination or reclassification shall not have
occurred prior to the commencement of the requisite thirty
Trading Day or ten Trading Day period, as set forth above,
then, and in each such case, the Current Market Price shall
be properly adjusted to reflect the current market price per
share equivalent of such class or series of Common Stock;
provided, further, however, that (x) prior to the filing of
the Subsequent Amendment pursuant to K.S.A. Section 17-6003(d),
the Current Market Price shall be deemed to be equal (1) in
the case of a share of Class A Common Stock or Series 2
Common Stock, the Current Market Price of a share of Sprint
Common Stock, and (2) in the case of a share of Series 3 PCS
Stock or Series 2 PCS Stock, as the case may be, the Current
Market Price of a share of Series 1 PCS Stock, and (y) after
the filing of the Subsequent Amendment pursuant to K.S.A.
Section 17-6003(d), the Current Market Price shall be deemed to be
equal, (3) in the case of Series 3 FON Stock or Series 2 FON
Stock, as the case may be, the Current Market Price of a
share of Series 1 FON Stock, (4) in the case of Old Class A
Common Stock and Class A Common Stock - Series DT, the sum
of the Current Market Price of the number of shares (or
fraction of a share, as the case may be) of Series 1 FON
Stock and of the number of shares (or fraction of a share,
as the case may be) of Series 1 PCS Stock, which would then
be received upon conversion of Old Class A Common Stock and
Class A Common Stock - Series DT, assuming each such class
and series was then converted into Series 3 FON Stock and
Series 3 PCS Stock and then, in turn, converted into Series
1 FON Stock and Series 1 PCS Stock, and (5) in the case of
Series 3 PCS Stock or Series 2 PCS Stock, as the case may
be, the Current Market Price of a share of Series 1 PCS
Stock. The closing price for each day shall be the last
sale price, regular way, or, in case no such sale takes
place on such day, the average of the closing bid and asked
prices, regular way, in either case as reported in the
principal consolidated transaction reporting system with
respect to securities listed or admitted to trading on the
New York Stock Exchange or, subject to the second proviso in
the first sentence of this Section 11(d)(i), if the shares
of the applicable class or series of Common Stock are not
listed or admitted to trading on the New York Stock
Exchange, as reported in the principal consolidated
transaction reporting system with respect to securities
listed on the principal national securities exchange on
which the shares of such class or series of Common Stock are
listed or admitted to trading or, if the shares of such
class or series of Common Stock are not listed or admitted
to trading on any national securities exchange, the last
quoted price or, if not so quoted, the average of the high
bid and low asked prices in the over-the-counter market, as
reported by the National Association of Securities Dealers,
Inc. Automated Quotation System ("NASDAQ") or such other
system then in use, or, if on any such date the shares of
such class or series of Common Stock are not quoted by any
such organization, the average of the closing bid and asked
prices as furnished by a professional market maker making a
market in such class or series of Common Stock selected by
the Board. Subject to the second proviso in the first
sentence of this Section 11(d)(i), if on any such date no
market maker is making a market in the applicable class or
series of Common Stock, the fair value of such shares on
such date as determined in good faith by the Board shall be
used. Subject to the second proviso in the first sentence
of this Section 11(d)(i), the term "Trading Day" shall mean
a day on which the principal national securities exchange on
which the shares of the applicable class or series of Common
Stock are listed or admitted to trading is open for the
transaction of business or, if the shares of such class or
series of Common Stock are not listed or admitted to trading
on any national securities exchange, a Business Day.
Subject to the second proviso in the first sentence of this
Section 11(d)(i), if the applicable class or series of
Common Stock is not publicly held or not so listed or trad
ed, Current Market Price per share shall mean the fair value
per share as determined in good faith by the Board, whose
determination shall be described in a statement filed with
the Rights Agent and shall be conclusive for all purposes.
(ii) For the purpose of any computation hereunder,
the Current Market Price per share of the applicable series
of Preferred Stock shall be determined in the same manner as
set forth above for the applicable class or series of Common
Stock in clause (i) of this Section 11(d) (other than the
last sentence thereof). If the Current Market Price per
share of the applicable series of Preferred Stock cannot be
determined in the manner provided above or if such series of
Preferred Stock is not publicly held or listed or traded in
a manner described in clause (i) of this Section 11(d), the
Current Market Price per share of such series of Preferred
Stock shall be conclusively deemed to be an amount equal to
1,000 (as such number may be appropriately adjusted for such
events as stock splits, stock dividends and
recapitalizations with respect to the applicable class or
series of Common Stock occurring after the date of this
Agreement) multiplied by the Current Market Price per share
of such class or series of Common Stock determined in
accordance with the second proviso to the first sentence of
Section 11(d)(i). Subject to the second proviso in the
first sentence of this Section 11(d)(i), if neither the
applicable class or series of Common Stock nor the
applicable series of Preferred Stock is publicly held or so
listed or traded, Current Market Price per share of such
series of Preferred Stock shall mean the fair value per
share as determined in good faith by the Board, whose
determination shall be described in a statement filed with
the Rights Agent and shall be conclusive for all purposes.
For all purposes of this Agreement, the Current Market Price
of one one-thousandth of a share of the applicable series of
Preferred Stock shall be equal to the Current Market Price
of one share of such series of Preferred Stock divided by
1,000.
(e) Anything herein to the contrary notwithstanding,
no adjustment in the FON Purchase Price, the PCS Purchase Price,
Old Class A Purchase Price or Series DT Purchase Price shall be
required unless such adjustment would require an increase or
decrease of at least one percent (1%) in the FON Purchase Price,
the PCS Purchase Price, Old Class A Purchase Price or Series
DT Purchase Price, respectively; provided, however, that any
adjustments which by reason of this Section 11(e) are not
required to be made shall be carried forward and taken into
account in any subsequent adjustment. All calculations under
this Section 11 shall be made to the nearest cent or to the
nearest ten-thousandth of a share of the applicable class or
series of Common Stock or other share or one-millionth of a share
of applicable series of Preferred Stock, as the case may be.
Notwithstanding the first sentence of this Section 11(e), any
adjustment required by this Section 11 shall be made no later
than the earlier of (i) three (3) years from the date of the
transaction which mandates such adjustment, or (ii) the Expira
tion Date.
(f) If as a result of an adjustment made pursuant to
Section 11(a)(ii) or Section 13(a) hereof, the holder of any
Right thereafter exercised shall become entitled to receive any
shares of capital stock other than the applicable series of
Preferred Stock, thereafter the number of such other shares so
receivable upon exercise of any Right and the applicable Purchase
Price thereof shall be subject to adjustment from time to time in
a manner and on terms as nearly equivalent as practicable to the
provisions with respect to the applicable series of Preferred
Stock contained in Sections 11(a), (b), (c), (e), (g), (h), (i),
(j), (k) and (m), and the provisions of Sections 7, 9, 10, 13 and
14 hereof with respect to the applicable series of Preferred
Stock shall apply on like terms to any such other shares.
(g) All FON Group Rights, PCS Group Rights, Old Class
A Rights and Series DT Rights originally issued by the Company
subsequent to any adjustment made to the applicable Purchase
Price hereunder shall evidence the right to purchase, at the
adjusted FON Purchase Price, the adjusted PCS Purchase Price, the
adjusted Class A Purchase Price and the adjusted Series DT
Purchase Price, respectively, the number of one one-thousandths
of a share of the applicable series of Preferred Stock
purchasable from time to time hereunder upon exercise of the
applicable Rights, all subject to further adjustment as provided
herein.
(h) Unless the Company shall have exercised its
election as provided in Section 11(i), upon each adjustment of
the applicable Purchase Price as a result of the calculations
made in Sections 11(b) and (c), each applicable Right outstanding
immediately prior to the making of such adjustment shall
thereafter evidence the right to purchase, at the adjusted
applicable Purchase Price, that number of one one-thousandths of
a share of the applicable series of Preferred Stock (calculated
to the nearest one-millionth) obtained by (i) multiplying (x) the
number of one one-thousandths of a share covered by a Right
immediately prior to this adjustment, by (y) the applicable
Purchase Price in effect immediately prior to such adjustment of
the applicable Purchase Price, and (ii) dividing the product so
obtained by the applicable Purchase Price in effect immediately
after such adjustment of the applicable Purchase Price.
(i) The Company may elect on or after the date of any
adjustment of the applicable Purchase Price to adjust the number
of applicable Rights, in lieu of any adjustment in the number of
one one-thousandths of a share of the applicable series of
Preferred Stock purchasable upon the exercise of a Right. Each
of the Rights outstanding after the adjustment in the number of
Rights shall be exercisable for the number of one one-thousandths
of a share of the applicable series of Preferred Stock for which
a Right was exercisable immediately prior to such adjustment.
Each Right held of record prior to such adjustment of the number
of Rights shall become that number of Rights (calculated to the
nearest one-millionth) obtained by dividing the applicable
Purchase Price in effect immediately prior to adjustment of the
applicable Purchase Price by the applicable Purchase Price in
effect immediately after adjustment of the applicable Purchase
Price. The Company shall make a public announcement of its
election to adjust the number of Rights, indicating the record
date for the adjustment, and, if known at the time, the amount of
the adjustment to be made. This record date may be the date on
which the applicable Purchase Price is adjusted or any day
thereafter, but, if the Rights Certificates have been issued,
shall be at least ten days later than the date of the public
announcement. If Rights Certificates have been issued, upon each
adjustment of the number of Rights pursuant to this Section
11(i), the Company shall, as promptly as practicable, cause to be
distributed to holders of record of Rights Certificates on such
record date Rights Certificates evidencing, subject to Section 14
hereof, the additional Rights to which such holders shall be
entitled as a result of such adjustment, or, at the option of the
Company, shall cause to be distributed to such holders of record
in substitution and replacement for the Rights Certificates held
by such holders prior to the date of adjustment, and upon
surrender thereof, if required by the Company, new Rights
Certificates evidencing all the Rights to which such holders
shall be entitled after such adjustment. Rights Certificates so
to be distributed shall be issued, executed and countersigned in
the manner provided for herein (and may bear, at the option of
the Company, the adjusted Purchase Price) and shall be registered
in the names of the holders of record of Rights Certificates on
the record date specified in the public announcement.
(j) Irrespective of any adjustment or change in the
applicable Purchase Price or the number of one one-thousandths of
a share of the applicable series of Preferred Stock issuable upon
the exercise of the Rights, the Rights Certificates theretofore
and thereafter issued may continue to express the applicable
Purchase Price per one one-thousandths of a share of the
applicable series of Preferred Stock and the number of one
one-thousandths of a share of the applicable series of Preferred
Stock which were expressed in the initial Rights Certificates
issued hereunder.
(k) Before taking any action that would cause an
adjustment reducing the applicable Purchase Price below the then
stated value, if any, of the number of one one-thousandths of a
share of the applicable series of Preferred Stock or the par
value, if any, of any shares of any other capital stock, issuable
upon exercise of the Rights, the Company shall take any corporate
action which may, in the opinion of its counsel, be necessary in
order that the Company may validly and legally issue fully paid
and nonassessable such number of one one-thousandths of a share
of the applicable series of Preferred Stock (or such other
shares) at such adjusted applicable Purchase Price. If, upon any
exercise of the Rights, a holder is to receive a combination of
the applicable class or series of Common Stock and the applicable
class or series of Common Stock Equivalents, a portion of the
consideration paid upon such exercise, equal to at least the then
par value of a share of such class or series of Common Stock,
shall be allocated as the payment for each share of such class or
series of Common Stock so received.
(l) In any case in which this Section 11 shall require
that an adjustment in the applicable Purchase Price be made
effective as of a record date for a specified event, the Company
may elect to defer until the occurrence of such event the
issuance to the holder of any Right exercised after such record
date the number of one one-thousandths of a share of the
applicable class or series of Preferred Stock and other capital
stock or securities of the Company, if any, issuable upon such
exercise over and above the number of one one-thousandths of a
share of the applicable series of Preferred Stock and other capi
tal stock or securities of the Company, if any, issuable upon
such exercise on the basis of the applicable Purchase Price in
effect prior to such adjustment; provided, however, that the
Company shall deliver to such holder a due bill or other
appropriate instrument evidencing such holder's right to receive
such additional shares (fractional or otherwise) or securities
upon the occurrence of the event requiring such adjustment.
(m) Anything in this Section 11 to the contrary
notwithstanding, the Company shall be entitled to make such
reductions in the applicable Purchase Price, in addition to those
adjustments expressly required by this Section 11, as and to the
extent that in its good faith judgment the Board of Directors of
the Company shall determine to be advisable in order that any
(i) consolidation or subdivision of the applicable series of
Preferred Stock, (ii) issuance wholly for cash of any shares of
the applicable series of Preferred Stock at less than the Current
Market Price, (iii) issuance wholly for cash of shares of the
applicable series of Preferred Stock or securities which by their
terms are convertible into or exchangeable for shares of the
applicable series of Preferred Stock, (iv) stock dividends or (v)
issuance of rights, options or warrants referred to in this
Section 11, hereafter made by the Company to holders of the
applicable series of Preferred Stock shall not be taxable to such
stockholders.
(n) The Company covenants and agrees that it shall
not, at any time after the Distribution Date and so long as all
of the Rights have not been redeemed pursuant to Section 23
hereof or exchanged pursuant to Section 24 hereof, (i)
consolidate with any other Person (other than a Subsidiary of the
Company in a transaction which complies with Section 11(o)
hereof), (ii) merge with or into any other Person (other than a
Subsidiary of the Company in a transaction which complies with
Section 11(o) hereof), or (iii) sell or transfer (or permit any
Subsidiary to sell or transfer), in one transaction, or a series
of related transactions, assets or earning power aggregating more
than 50% of the assets or earning power of the Company and its
Subsidiaries (taken as a whole) to any other Person or Persons
(other than the Company and/or any of its Subsidiaries in one or
more transactions each of which complies with Section 11(o)
hereof), if (x) at the time of or immediately after such
consolidation, merger or sale there are any rights, warrants or
other instruments or securities outstanding or agreements in
effect which would substantially diminish or otherwise eliminate
the benefits intended to be afforded by the Rights or (y) prior
to, simultaneously with or immediately after such consolidation,
merger or sale, the shareholders of the Person who constitutes,
or would constitute, the "Principal Party" for purposes of
Section 13(a) hereof shall have received a distribution of Rights
previously owned by such Person or any of its Affiliates and
Associates.
(o) The Company covenants and agrees that, after the
Distribution Date, it will not, except as permitted by Section
23, Section 24 or Section 27 hereof, take (or permit any
Subsidiary to take) any action if at the time such action is
taken it is reasonably foreseeable that such action will diminish
substantially or otherwise eliminate the benefits intended to be
afforded by the Rights.
(p) Anything in this Agreement to the contrary
notwithstanding, in the event that the Company shall at any time
after the filing of the Initial Charter Amendment pursuant to
K.S.A. Section 17-6003(d) and prior to the Distribution Date (i)
declare a dividend on the outstanding shares of any class or
series of Common Stock payable in shares of such class or series
of Common Stock, (ii) subdivide the outstanding shares of any
class or series of Common Stock, or (iii) combine the outstanding
shares of any class or series of Common Stock into a smaller
number of shares, the number of Rights associated with each share
of such class or series of Common Stock then outstanding, or
issued or delivered thereafter but prior to the Distribution
Date, shall be proportionately adjusted so that the number of
Rights thereafter associated with each share of such class or
series of Common Stock following any such event shall equal the
result obtained by multiplying the number of Rights associated
with each share of such class or series of Common Stock
immediately prior to such event by a fraction the numerator of
which shall be the total number of shares of such class or series
of Common Stock outstanding immediately prior to the occurrence
of the event and the denominator of which shall be the total
number of shares of such class or series of Common Stock
outstanding immediately following the occurrence of such event.
Section 12. Certificate of Adjusted Purchase Price
or Number of Shares. Whenever an adjustment is made as provided
in Section 11 and Section 13 hereof, the Company shall (a)
promptly prepare a certificate setting forth such adjustment and
a brief statement of the facts accounting for such adjustment,
(b) promptly file with the Rights Agent, and with each transfer
agent for the applicable series of Preferred Stock and the
applicable class or series of Common Stock, a copy of such
certificate, and (c) mail a brief summary thereof to each holder
of a Rights Certificate evidencing the applicable Rights (or, if
prior to the Distribution Date, to each holder of a certificate
representing shares of such applicable class or series of Common
Stock) in accordance with Section 26 hereof. The Rights Agent
shall be fully protected in relying on any such certificate and
on any adjustment therein contained.
Section 13. Consolidation, Merger or Sale or
Transfer of Assets or Earning Power.
(a) In the event that, following the Stock Acquisition
Date (which for purposes of this Section 13(a) only shall also
include the date of the first public announcement (including,
without limitation, a report filed pursuant to Section 13(d)
under the Exchange Act) that any Person (other than the Company,
any Subsidiary of the Company, any employee benefit plan of the
Company or of any Subsidiary of the Company, or any Person or
entity organized, appointed or established by the Company for or
pursuant to the terms of any such plan), together with any of
such Person's Affiliates and Associates, has become the
Beneficial Owner of Voting Securities of the Company then
outstanding representing 15% or more of the Voting Power of the
Company (or in the case of the FT/DT Parties (individually or in
the aggregate), shares in excess of the FT/DT Permitted Level)
pursuant to a Qualifying Offer), directly or indirectly, (x) the
Company shall consolidate with, or merge with and into, any other
Person (other than a Subsidiary of the Company in a transaction
which complies with Section 11(o) hereof), and the Company shall
not be the continuing or surviving corporation of such
consolidation or merger, (y) any Person (other than a Subsidiary
of the Company in a transaction which complies with Section 11(o)
hereof) shall consolidate with, or merge with or into, the Compa
ny, and the Company shall be the continuing or surviving
corporation of such consolidation or merger and, in connection
with such consolidation or merger, all or part of the outstanding
shares of Common Stock shall be changed into or exchanged for
stock or other securities of any other Person or cash or any
other property, or (z) the Company shall sell or otherwise
transfer (or one or more of its Subsidiaries shall sell or
otherwise transfer), in one transaction or a series of related
transactions, assets or earning power aggregating more than 50%
of the assets or earning power of the Company and its Subsidiar
ies (taken as a whole) to any Person or Persons (other than the
Company or any Subsidiary of the Company in one or more
transactions each of which complies with Section 11(o) hereof),
then, upon the first occurrence of such event (except as may be
contemplated by Section 13(d) hereof), proper provision shall be
made so that except as provided in Section 7(e) hereof,
(A) each holder of a FON Group Right shall there
after have the right to receive, upon the exercise thereof
at the then current FON Purchase Price, in accordance with
the terms of this Agreement, such number of validly au
thorized and issued, fully paid, non-assessable and freely
tradeable shares of Common Stock of the Principal Party (as
such term is hereinafter defined), not subject to any liens,
encumbrances, rights of first refusal or other adverse
claims, as shall be equal to the result obtained by (1)
multiplying the then current FON Purchase Price by the
number of one one-thousandths of a share of Preferred Stock
- Sixth Series for which a FON Group Right is exercisable
immediately prior to the first occurrence of a Section 13
Event (or, if a Section 11(a)(ii) Event has occurred prior
to the first occurrence of a Section 13 Event, multiplying
the number of such one one-thousandths of a share of
Preferred Stock - Sixth Series for which a FON Group Right
was exercisable immediately prior to the first occurrence of
a Section 11(a)(ii) Event by the FON Purchase Price in
effect immediately prior to such first occurrence), and
dividing that product (which, following the first occurrence
of a Section 13 Event, shall be referred to as the "FON
Purchase Price" for each FON Group Right and for all
purposes of this Agreement) by (2) 50% of the Current Market
Price (determined pursuant to Section 11(d)(i) hereof) per
share of the Common Stock of such Principal Party on the
date of consummation of such Section 13 Event, provided that
the FON Purchase Price and the number of shares of Common
Stock of such Principal Party issuable upon exercise of each
FON Group Right shall be further adjusted as provided in
Section 11(f) of this Agreement to reflect any events
occurring in respect of such Principal Party after the date
of such Section 13 Event,
(B) each holder of a PCS Group Right shall there
after have the right to receive, upon the exercise thereof
at the then current PCS Purchase Price, in accordance with
the terms of this Agreement, such number of validly au
thorized and issued, fully paid, non-assessable and freely
tradeable shares of Common Stock of the Principal Party (as
such term is hereinafter defined), not subject to any liens,
encumbrances, rights of first refusal or other adverse
claims, as shall be equal to the result obtained by (1)
multiplying the then current PCS Purchase Price by the
number of one one-thousandths of a share of Preferred Stock
- Eighth Series for which a PCS Group Right is exercisable
immediately prior to the first occurrence of a Section 13
Event (or, if a Section 11(a)(ii) Event has occurred prior
to the first occurrence of a Section 13 Event, multiplying
the number of such one one-thousandths of a share of
Preferred Stock - Eighth Series for which a PCS Group Right
was exercisable immediately prior to the first occurrence of
a Section 11(a)(ii) Event by the PCS Purchase Price in
effect immediately prior to such first occurrence), and
dividing that product (which, following the first occurrence
of a Section 13 Event, shall be referred to as the "PCS
Purchase Price" for each PCS Group Right and for all
purposes of this Agreement) by (2) 50% of the Current Market
Price (determined pursuant to Section 11(d)(i) hereof) per
share of the Common Stock of such Principal Party on the
date of consummation of such Section 13 Event, provided that
the PCS Purchase Price and the number of shares of Common
Stock of such Principal Party issuable upon exercise of each
PCS Group Right shall be further adjusted as provided in
Section 11(f) of this Agreement to reflect any events
occurring in respect of such Principal Party after the date
of such Section 13 Event;
(C) each holder of an Old Class A Right shall
thereafter have the right to receive upon exercise thereof,
(1) to the extent theretofore exercisable
for Preferred Stock - Sixth Series (or would have been
exercisable if the Distribution Date had occurred on
the Business Day immediately preceding the date of such
Section 13 Event) at the then current Old Class A Sixth
Series Purchase Price, in accordance with the terms of
this Agreement, such number of validly authorized and
issued, fully paid, non-assessable and freely tradeable
shares of Common Stock of the Principal Party (as such
term is hereinafter defined), not subject to any liens,
encumbrances, rights of first refusal or other adverse
claims, as shall be equal to the result obtained by
(I) multiplying the then current Old Class A Sixth
Series Purchase Price by the then number of one one-
thousandths of a share of Preferred Stock - Sixth
Series for which an Old Class A Right was exercisable
immediately prior to the first occurrence of a Section
13 Event, (or if a Section 11(a)(ii) Event has occurred
prior to the first occurrence of a Section 13 Event,
multiplying the number of such one one-thousandths of a
share of Preferred Stock - Sixth Series for which an
Old Class A Right was exercisable immediately prior to
the first occurrence of a Section 11(a)(ii) Event by
the Old Class A Sixth Series Purchase Price in effect
immediately prior to such first occurrence), and
dividing that product (which, following the first
occurrence of a Section 13 Event, shall be referred to
as the "Old Class A Sixth Series Purchase Price" for
each Old Class A Right and for all purposes of this
Agreement) by (II) 50% of the Current Market Price
(determined pursuant to Section 11(d)(i) hereof) per
share of the Common Stock of such Principal Party on
the date of consummation of such Section 13 Event,
provided that the Old Class A Sixth Series Purchase
Price and the number of shares of Common Stock of such
Principal Party issuable upon exercise of each Old
Class A Right shall be further adjusted as provided in
Section 11(f) of this Agreement to reflect any events
occurring in respect of such Principal Party after the
date of such Section 13 Event,
(2) to the extent theretofore exercisable
for Preferred Stock - Eighth Series (or would have been
exercisable if the Distribution Date had occurred on
the Business Day immediately preceding the date of such
Section 13 Event) at the then current Old Class A
Eighth Series Purchase Price, in accordance with the
terms of this Agreement, such number of validly
authorized and issued, fully paid, non-assessable and
freely tradeable shares of Common Stock of the
Principal Party (as such term is hereinafter defined),
not subject to any liens, encumbrances, rights of first
refusal or other adverse claims, as shall be equal to
the result obtained by (I) multiplying the then current
Old Class A Eighth Series Purchase Price by the then
number of one one-thousandths of a share of Preferred
Stock - Eighth Series for which an Old Class A Right
was exercisable immediately prior to the first
occurrence of a Section 13 Event, (or if a Section
11(a)(ii) Event has occurred prior to the first
occurrence of a Section 13 Event, multiplying the
number of such one one-thousandths of a share of
Preferred Stock - Eighth Series for which an Old Class
A Right was exercisable immediately prior to the first
occurrence of a Section 11(a)(ii) Event by the Old
Class A Eighth Series Purchase Price in effect
immediately prior to such first occurrence), and
dividing that product (which, following the first
occurrence of a Section 13 Event, shall be referred to
as the "Old Class A Eighth Series Purchase Price" for
each Old Class A Right and for all purposes of this
Agreement) by (II) 50% of the Current Market Price
(determined pursuant to Section 11(d)(i) hereof) per
share of the Common Stock of such Principal Party on
the date of consummation of such Section 13 Event,
provided that the Old Class A Eighth Series Purchase
Price and the number of shares of Common Stock of such
Principal Party issuable upon exercise of each Old
Class A Right shall be further adjusted as provided in
Section 11(f) of this Agreement to reflect any events
occurring in respect of such Principal Party after the
date of such Section 13 Event,
(D) each holder of a Series DT Right shall
thereafter have the right to receive upon exercise thereof,
(1) to the extent theretofore exercisable
for Preferred Stock - Sixth Series (or would have been
exercisable if the Distribution Date had occurred on
the Business Day immediately preceding the date of such
Section 13 Event) at the then current Series DT Sixth
Series Purchase Price, in accordance with the terms of
this Agreement, such number of validly authorized and
issued, fully paid, non-assessable and freely tradeable
shares of Common Stock of the Principal Party (as such
term is hereinafter defined), not subject to any liens,
encumbrances, rights of first refusal or other adverse
claims, as shall be equal to the result obtained by
(I) multiplying the then current Series DT Sixth Series
Purchase Price by the then number of one one-
thousandths of a share of Preferred Stock - Sixth
Series for which a Series DT Right was exercisable
immediately prior to the first occurrence of a Section
13 Event, (or if a Section 11(a)(ii) Event has occurred
prior to the first occurrence of a Section 13 Event,
multiplying the number of such one one-thousandths of a
share of Preferred Stock - Sixth Series for which a
Series DT Right was exercisable immediately prior to
the first occurrence of a Section 11(a)(ii) Event by
the Series DT Sixth Series Purchase Price in effect
immediately prior to such first occurrence), and
dividing that product (which, following the first
occurrence of a Section 13 Event, shall be referred to
as the "Series DT Sixth Series Purchase Price" for each
Series DT Right and for all purposes of this Agreement)
by (II) 50% of the Current Market Price (determined
pursuant to Section 11(d)(i) hereof) per share of the
Common Stock of such Principal Party on the date of
consummation of such Section 13 Event, provided that
the Series DT Sixth Series Purchase Price and the
number of shares of Common Stock of such Principal
Party issuable upon exercise of each Series DT Right
shall be further adjusted as provided in Section 11(f)
of this Agreement to reflect any events occurring in
respect of such Principal Party after the date of such
Section 13 Event,
(2) to the extent theretofore exercisable
for Preferred Stock - Eighth Series (or would have been
exercisable if the Distribution Date had occurred on
the Business Day immediately preceding the date of such
Section 13 Event) at the then current Series DT Eighth
Series Purchase Price, in accordance with the terms of
this Agreement, such number of validly authorized and
issued, fully paid, non-assessable and freely tradeable
shares of Common Stock of the Principal Party (as such
term is hereinafter defined), not subject to any liens,
encumbrances, rights of first refusal or other adverse
claims, as shall be equal to the result obtained by
(I) multiplying the then current Series DT Eighth
Series Purchase Price by the then number of one one-
thousandths of a share of Preferred Stock - Eighth
Series for which a Series DT Right was exercisable
immediately prior to the first occurrence of a Section
13 Event, (or if a Section 11(a)(ii) Event has occurred
prior to the first occurrence of a Section 13 Event,
multiplying the number of such one one-thousandths of a
share of Preferred Stock - Eighth Series for which a
Series DT Right was exercisable immediately prior to
the first occurrence of a Section 11(a)(ii) Event by
the Series DT Eighth Series Purchase Price in effect
immediately prior to such first occurrence), and
dividing that product (which, following the first
occurrence of a Section 13 Event, shall be referred to
as the "Series DT Eighth Series Purchase Price" for
each Series DT Right and for all purposes of this
Agreement) by (II) 50% of the Current Market Price
(determined pursuant to Section 11(d)(i) hereof) per
share of the Common Stock of such Principal Party on
the date of consummation of such Section 13 Event,
provided that the Series DT Eighth Series Purchase
Price and the number of shares of Common Stock of such
Principal Party issuable upon exercise of each Series
DT Right shall be further adjusted as provided in
Section 11(f) of this Agreement to reflect any events
occurring in respect of such Principal Party after the
date of such Section 13 Event,
(i) such Principal Party shall thereafter be
liable for, and shall assume, by virtue of such Section 13
Event, all the obligations and duties of the Company
pursuant to this Agreement;
(ii) the term "Company" shall thereafter be
deemed to refer to such Principal Party, it being
specifically intended that the provisions of Section 11
hereof shall apply only to such Principal Party following
the first occurrence of a Section 13 Event;
(iii) such Principal Party shall take such
steps (including, but not limited to, the reservation of a
sufficient number of shares of its Common Stock) in con
nection with the consummation of any such transaction as may
be necessary to assure that the provisions hereof shall
thereafter be applicable, as nearly as reasonably may be, in
relation to its shares of Common Stock thereafter
deliverable upon the exercise of the Rights; and
(iv) the provisions of Section 11(a)(ii)
hereof shall be of no effect following the first occurrence
of any Section 13 Event.
(b) "Principal Party" shall mean
(i) in the case of any transaction described in
clause (x) or (y) of the first sentence of Section 13(a):
(A) the Person that is the issuer of any securities into
which shares of Common Stock of the Company are converted in
such merger or consolidation, or if there is more than one
such issuer, the issuer of the shares of Common Stock which
has the greatest aggregate market value of shares
outstanding, or (B) if no securities are so issued, (1) the
Person that is the other party to the merger, if such Person
survives said merger, or, if there is more than one such
Person, the Person the shares of Common Stock of which has
the greatest aggregate market value of shares outstanding or
(2) if the Person that is the other party to the merger does
not survive the merger, the Person that does survive the
merger (including the Company if it survives) or (3) the
Person resulting from the consolidation; and
(ii) in the case of any transaction described in
clause (z) of the first sentence of Section 13(a), the
Person that is the party receiving the greatest portion of
the assets or earning power transferred pursuant to such
transaction or transactions or, if each Person that is a
party to such transaction or transactions receives the same
portion of the assets or earning power so transferred or if
the Person receiving the greatest portion of the assets or
earning power cannot be determined, whichever of such
Persons as is the issuer of the shares of Common Stock
having the greatest aggregate market value of shares
outstanding;
provided, however, that in any such case, (1) if the Common Stock
of such Person is not at such time and has not been continuously
over the preceding twelve (12) month period registered under
Section 12 of the Exchange Act, and such Person is a direct or
indirect Subsidiary of another Person the Common Stock of which
is and has been so registered, "Principal Party" shall refer to
such other Person; (2) in case such Person is a Subsidiary,
directly or indirectly, of more than one Person, the Common
Stocks of two or more of which are and have been so registered,
"Principal Party" shall refer to whichever of such Persons is the
issuer of the Common Stock having the greatest aggregate market
value of shares outstanding; and (3) in case such Person is
owned, directly or indirectly, by a joint venture formed by two
or more Persons that are not owned, directly or indirectly, by
the same Person, the rules set forth in (1) and (2) above shall
apply to each of the chains of ownership having an interest in
such joint venture as if such party were a "Subsidiary" of both
or all of such joint venturers and the Principal Parties in each
such chain shall bear the obligations set forth in this Section
13 in the same ratio as their direct or indirect interests in
such Person bear to the total of such interests.
(c) The Company shall not consummate any such
consolidation, merger, sale or transfer unless the Principal
Party covenants and agrees that it will cause to be reserved and
kept available out of its authorized and unissued shares of
Common Stock or out of its authorized and issued shares held in
its treasury, the number of shares of its Common Stock that will
be sufficient to permit the exercise in full of all outstanding
Rights under this Section 13 and unless prior thereto the Company
and such Principal Party shall have executed and delivered to the
Rights Agent a supplemental agreement confirming that the
requirements set forth in paragraphs (a) and (b) of this Section
13 shall be promptly performed in accordance with their terms and
further providing that, as soon as practicable after executing
such agreement pursuant to this Section 13, the Principal Party
will
(i) prepare and file a registration statement
under the Act, with respect to the Rights and the securities
purchasable upon exercise of the Rights on an appropriate
form, and will use its best efforts to cause such
registration statement to (A) become effective as soon as
practicable after such filing and (B) remain effective (with
a prospectus at all times meeting the requirements of the
Act) until the Expiration Date and similarly comply with
applicable state securities laws;
(ii) use its best efforts, if the shares of Common
Stock of the Principal Party shall be listed or admitted to
trading on a national securities exchange or NASDAQ to list
or admit to trading (or continue the listing of) the Rights
and the securities purchasable upon exercise of the Rights
on such securities exchange or NASDAQ and, if the shares of
Common Stock of the Principal Party shall not be listed or
admitted to trading on a national securities exchange or
NASDAQ, to cause the Rights and the securities purchasable
upon exercise of the Rights to be reported by such other
system then in use;
(iii) will deliver to holders of the Rights
historical financial statements for the Principal Party and
each of its Affiliates which comply in all respects with the
requirements for registration on Form 10 under the Exchange
Act; and
(iv) obtain waivers of any rights of first refusal
or preemptive rights in respect of the shares of Common
Stock of the Principal Party subject to purchase upon
exercise of outstanding Rights.
The provisions of this Section 13 shall similarly apply to
successive mergers or consolidations or sales or other transfers.
In the event that a Section 13 Event shall occur at any time
after the occurrence of a Section 11(a)(ii) Event, the Rights
which have not theretofore been exercised shall thereafter become
exercisable in the manner described in Section 13(a). If, for
any reason, the Rights cannot be exercised for Common Stock of
the Company or such Principal Party, then a holder of Rights will
have the right to exchange his Rights for cash from the Company
or such Principal Party in an amount equal to the number of
shares of such Common Stock he would otherwise be entitled to
purchase times 50% of the then Current Market Price, as
determined pursuant to Section 11(d)(i) hereof, of such stock of
such Principal Party or the Company. If, for any reason,
including, without limitation, if such Principal Party is an
individual, private partnership or private company, the foregoing
formulation cannot be applied to determine the cash amount into
which the Rights are exchangeable, then the Board of Directors of
the Company, based upon the advice from one or more investment
banking firms, shall determine such amount reasonably and with
good faith to the holders of Rights. Any such determination
shall be binding and final.
(d) Notwithstanding anything in this Agreement to the
contrary, Section 13 shall not be applicable to a transaction
described in subparagraphs (x) and (y) of Section 13(a) if (i)
such transaction is consummated with a Person or Persons who
acquired shares of Common Stock pursuant to a Qualifying Offer
(or a wholly owned Subsidiary of any such Person or Persons),
(ii) the price per share of the applicable class or series of
Common Stock offered in such transaction is not less than the
price per share of such class or series of Common Stock paid to
all holders of shares of such class or series of Common Stock
whose shares were purchased pursuant to such Qualifying Offer and
(iii) the form of consideration being offered to the remaining
holders of shares of Common Stock pursuant to such transaction is
the same as the form of consideration paid pursuant to such
Qualifying Offer. Upon consummation of any such transaction
contemplated by this Section 13(d), all Rights hereunder shall
expire.
Section 14. Fractional Rights and Fractional Shares.
(a) The Company shall not be required to issue
fractions of Rights, except prior to the Distribution Date as
provided in Section 11(p) hereof, or to distribute Rights
Certificates which evidence fractional Rights. In lieu of such
fractional Rights, there shall be paid to the registered holders
of the Rights Certificates with regard to which such fractional
Rights would otherwise be issuable, an amount in cash equal to
the same fraction of the current market value of a whole Right.
For purposes of this Section 14(a), the current market value of a
whole Right shall be the closing price of the Rights for the
Trading Day immediately prior to the date on which such
fractional Rights would have been otherwise issuable. The
closing price of the Rights for any day shall be the last sale
price, regular way, or, in case no such sale takes place on such
day, the average of the closing bid and asked prices, regular
way, in either case as reported in the principal consolidated
transaction reporting system with respect to securities listed or
admitted to trading on the New York Stock Exchange or, if the
Rights are not listed or admitted to trading on the New York
Stock Exchange, as reported in the principal consolidated
transaction reporting system with respect to securities listed on
the principal national securities exchange on which the Rights
are listed or admitted to trading, or if the Rights are not
listed or admitted to trading on any national securities
exchange, the last quoted price or, if not so quoted, the average
of the high bid and low asked prices in the over-the-counter
market, as reported by NASDAQ or such other system then in use
or, if on any such date the Rights are not quoted by any such
organization, the average of the closing bid and asked prices as
furnished by a professional market maker making a market in the
Rights selected by the Board of Directors of the Company. If on
any such date no such market maker is making a market in the
Rights the fair value of the Rights on such date as determined in
good faith by the Board of Directors of the Company shall be
used.
(b) The Company shall not be required to issue
fractions of shares of Preferred Stock (other than, except as
provided in Section 7(c), fractions which are integral multiples
of one one-thousandth of a share of Preferred Stock) upon
exercise of the Rights or to distribute certificates which
evidence fractional shares of Preferred Stock (other than
fractions which are integral multiples of one one-thousandth of a
share of Preferred Stock). Fractions of shares of Preferred
Stock in integral multiples of one one-thousandth of a share of
Preferred Stock may, at the election of the Company, be evidenced
by depositary receipts, pursuant to an appropriate agreement
between the Company and a depositary selected by it, provided
that such agreement shall provide that the holders of such
depositary receipts shall have all the rights, privileges and
preferences to which they are entitled as beneficial owners of
the shares of Preferred Stock represented by such depositary
receipts. In lieu of fractional shares of Preferred Stock that
are not integral multiples of one one-thousandth of a share of
Preferred Stock, the Company may pay to the registered holders of
Rights Certificates at the time such Rights are exercised as
herein provided an amount in cash equal to the same fraction of
the current market value of one one-thousandth of a share of
Preferred Stock. For purposes of this Section 14(b), the current
market value of one one-thousandth of a share of Preferred Stock
shall be one one-thousandth of the closing price of a share of
Preferred Stock (as determined pursuant to Section 11(d)(ii)
hereof) for the Trading Day immediately prior to the date of such
exercise.
(c) Following the occurrence of a Triggering Event,
the Company shall not be required to issue fractions of shares of
Common Stock upon exercise of the Rights or to distribute
certificates which evidence fractional shares of Common Stock.
In lieu of fractional shares of Common Stock, the Company may pay
to the registered holders of Rights Certificates at the time such
Rights are exercised as herein provided an amount in cash equal
to the same fraction of the current market value of one (1) share
of the applicable class or series of Common Stock which such
holder would otherwise have been entitled to receive. For
purposes of this Section 14(c), the current market value of one
share of the applicable class or series of Common Stock shall be
the closing price of one share of such class or series of Common
Stock (as determined pursuant to Section 11(d)(i) hereof) for the
Trading Day immediately prior to the date of such exercise.
(d) The holder of a Right by the acceptance of the
Rights expressly waives his right to receive any fractional
Rights or any fractional shares upon exercise of a Right, except
as permitted by this Section 14.
Section 15. Rights of Action. All rights of action
in respect of this Agreement are vested in the respective
registered holders of the Rights Certificates (and, prior to the
Distribution Date, the registered holders of the Common Stock);
and any registered holder of any Rights Certificate (or, prior to
the Distribution Date, of the Common Stock), without the consent
of the Rights Agent or of the holder of any other Rights Certif
icate (or, prior to the Distribution Date, of the Common Stock),
may, in his own behalf and for his own benefit, enforce, and may
institute and maintain any suit, action or proceeding against the
Company to enforce, or otherwise act in respect of, his right to
exercise the Rights evidenced by such Rights Certificate in the
manner provided in such Rights Certificate and in this Agreement.
Without limiting the foregoing or any remedies available to the
holders of Rights, it is specifically acknowledged that the
holders of Rights would not have an adequate remedy at law for
any breach of this Agreement and shall be entitled to specific
performance of the obligations hereunder and injunctive relief
against actual or threatened violations of the obligations
hereunder of any Person subject to this Agreement.
Section 16. Agreement of Rights Holders. Every
holder of a Right, by accepting the same, consents and agrees
with the Company and the Rights Agent and with every other holder
of a Right that:
(a) prior to the Distribution Date, the Rights will be
transferable only in connection with the transfer of Common
Stock;
(b) after the Distribution Date, the Rights
Certificates are transferable only on the registry books of the
Rights Agent if surrendered at the principal office or offices of
the Rights Agent designated for such purposes, duly endorsed or
accompanied by a proper instrument of transfer and with the
appropriate forms and certificates fully executed;
(c) subject to Section 6(a) and Section 7(f) hereof,
the Company and the Rights Agent may deem and treat the person in
whose name a Rights Certificate (or, prior to the Distribution
Date, the associated Common Stock certificate) is registered as
the absolute owner thereof and of the Rights evidenced thereby
(notwithstanding any notations of ownership or writing on the
Rights Certificates or the associated Common Stock certificate
made by anyone other than the Company or the Rights Agent) for
all purposes whatsoever, and neither the Company nor the Rights
Agent, subject to the penultimate sentence of Section 7(e)
hereof, shall be required to be affected by any notice to the
contrary; and
(d) notwithstanding anything in this Agreement to the
contrary, neither the Company nor the Rights Agent shall have any
liability to any holder of a Right or other Person as a result of
its inability to perform any of its obligations under this
Agreement by reason of any preliminary or permanent injunction or
other order, decree or ruling issued by a court of competent
jurisdiction or by a governmental, regulatory or administrative
agency or commission, or any statute, rule, regulation or
executive order promulgated or enacted by any governmental
authority, prohibiting or otherwise restraining performance of
such obligation; provided, however, the Company must use all
reasonable efforts to have any such order, decree or ruling
lifted or otherwise overturned as soon as possible.
Section 17. Rights Certificate Holder Not Deemed a
Stockholder. No holder, as such, of any Rights Certificate shall
be entitled to vote, receive dividends or be deemed for any
purpose the holder of the number of one one-thousandths of a
share of Preferred Stock or any other securities of the Company
which may at any time be issuable on the exercise of the Rights
represented thereby, nor shall anything contained herein or in
any Rights Certificate be construed to confer upon the holder of
any Rights Certificate, as such, any of the rights of a
stockholder of the Company or any right to vote for the election
of directors or upon any matter submitted to stockholders at any
meeting thereof, or to give or withhold consent to any corporate
action, or to receive notice of meetings or other actions
affecting stockholders (except as provided in Section 25 hereof),
or to receive dividends or subscription rights, or otherwise,
until the Right or Rights evidenced by such Rights Certificate
shall have been exercised in accordance with the provisions
hereof.
Section 18. Concerning the Rights Agent.
(a) The Company agrees to pay to the Rights Agent
reasonable compensation for all services rendered by it hereunder
and, from time to time, on demand of the Rights Agent, its
reasonable expenses and counsel fees and disbursements and other
disbursements incurred in the administration and execution of
this Agreement and the exercise and performance of its duties
hereunder. The Company also agrees to indemnify the Rights Agent
for, and to hold it harmless against, any loss, liability, or
expense, incurred without negligence, bad faith or willful
misconduct on the part of the Rights Agent, for anything done or
omitted by the Rights Agent in connection with the acceptance and
administration of this Agreement, including the costs and
expenses of defending against any claim of liability in the
premises (including reasonable counsel fees and expenses).
(b) The Rights Agent shall be protected and shall
incur no liability for or in respect of any action taken,
suffered or omitted by it in connection with its administration
of this Agreement in reliance upon any Rights Certificate or
certificate for Common Stock or for other securities of the
Company, instrument of assignment or transfer, power of attorney,
endorsement, affidavit, letter, notice, direction, consent,
certificate, statement, or other paper or document believed by it
to be genuine and to be signed, executed and, where necessary,
verified or acknowledged, by the proper Person or Persons.
Section 19. Merger or Consolidation or Change of
Name of Rights Agent.
(a) Any corporation into which the Rights Agent or any
successor Rights Agent may be merged or with which it may be
consolidated, or any corporation resulting from any merger or
consolidation to which the Rights Agent or any successor Rights
Agent shall be a party, or any corporation succeeding to the
corporate trust business of the Rights Agent or any successor
Rights Agent, shall be the successor to the Rights Agent under
this Agreement without the execution or filing of any paper or
any further act on the part of any of the parties hereto;
provided, however, that such corporation would be eligible for
appointment as a successor Rights Agent under the provisions of
Section 21 hereof. In case at the time such successor Rights
Agent shall succeed to the agency created by this Agreement, any
of the Rights Certificates shall have been countersigned but not
delivered, any such successor Rights Agent may adopt the
countersignature of a predecessor Rights Agent and deliver such
Rights Certificates so countersigned; and in case at that time
any of the Rights Certificates shall not have been countersigned,
any successor Rights Agent may countersign such Rights
Certificates either in the name of the predecessor or in the name
of the successor Rights Agent; and in all such cases such Rights
Certificates shall have the full force provided in the Rights
Certificates and in this Agreement.
(b) In case at any time the name of the Rights Agent
shall be changed and at such time any of the Rights Certificates
shall have been countersigned but not delivered, the Rights Agent
may adopt the countersignature under its prior name and deliver
Rights Certificates so countersigned; and in case at that time
any of the Rights Certificates shall not have been countersigned,
the Rights Agent may countersign such Rights Certificates either
in its prior name or in its changed name; and in all such cases
such Rights Certificates shall have the full force provided in
the Rights Certificates and in this Agreement.
Section 20. Duties of Rights Agent. The Rights
Agent undertakes the duties and obligations imposed by this
Agreement upon the following terms and conditions, by all of
which the Company and the holders of Rights Certificates, by
their acceptance thereof, shall be bound:
(a) The Rights Agent may consult with legal counsel
(who may be legal counsel for the Company), and the opinion of
such counsel shall be full and complete authorization and
protection to the Rights Agent as to any action taken or omitted
by it in good faith and in accordance with such opinion.
(b) Whenever in the performance of its duties under
this Agreement the Rights Agent shall deem it necessary or
desirable that any fact or matter (including, without limitation,
the identity of any Acquiring Person and the determination of
"Current Market Price") be proved or established by the Company
prior to taking or omitting any action hereunder, such fact or
matter (unless other evidence in respect thereof be herein
specifically prescribed) may be deemed to be conclusively proved
and established by a certificate signed by the Chairman of the
Board, any Vice Chairman, the President, any Vice President, the
Treasurer, any Assistant Treasurer, the Secretary or any
Assistant Secretary of the Company and delivered to the Rights
Agent; and such certificate shall be full authorization to the
Rights Agent for any action taken or omitted in good faith by it
under the provisions of this Agreement in reliance upon such
certificate.
(c) The Rights Agent shall be liable hereunder only
for its own negligence, bad faith or willful misconduct.
(d) The Rights Agent shall not be liable for or by
reason of any of the statements of fact or recitals contained in
this Agreement or in the Rights Certificates or be required to
verify the same (except as to its countersignature on such Rights
Certificates), but all such statements and recitals are and shall
be deemed to have been made by the Company only.
(e) The Rights Agent shall not be under any
responsibility in respect of the validity of this Agreement or
the execution and delivery hereof (except the due execution
hereof by the Rights Agent) or in respect of the validity or
execution of any Rights Certificate (except its countersignature
thereof); nor shall it be responsible for any breach by the
Company of any covenant or condition contained in this Agreement
or in any Rights Certificate; nor shall it be responsible for any
adjustment required under the provisions of Section 11 or Section
13 hereof or responsible for the manner, method or amount of any
such adjustment or the ascertaining of the existence of facts
that would require any such adjustment (except with respect to
the exercise of Rights evidenced by Rights Certificates after
actual notice of any such adjustment); nor shall it by any act
hereunder be deemed to make any representation or warranty as to
the authorization or reservation of any shares of Common Stock or
Preferred Stock to be issued pursuant to this Agreement or any
Rights Certificate or as to whether any shares of Common Stock or
Preferred Stock will, when so issued, be validly authorized and
issued, fully paid and nonassessable.
(f) The Company agrees that it will perform, execute,
acknowledge and deliver or cause to be performed, executed,
acknowledged and delivered all such further and other acts,
instruments and assurances as may reasonably be required by the
Rights Agent for the carrying out or performing by the Rights
Agent of the provisions of this Agreement.
(g) The Rights Agent is hereby authorized and directed
to accept instructions with respect to the performance of its
duties hereunder from the Chairman of the Board, any Vice
Chairman, the President, any Vice President, the Secretary, any
Assistant Secretary, the Treasurer or any Assistant Treasurer of
the Company, and to apply to such officers for advice or
instructions in connection with its duties, and it shall not be
liable for any action taken or omitted to be taken by it in good
faith in accordance with instructions of any such officer.
(h) The Rights Agent and any stockholder, director,
officer or employee of the Rights Agent may buy, sell or deal in
any of the Rights or other securities of the Company or become
pecuniarily interested in any transaction in which the Company
may be interested, or contract with or lend money to the Company
or otherwise act as fully and freely as though it were not Rights
Agent under this Agreement. Nothing herein shall preclude the
Rights Agent from acting in any other capacity for the Company or
for any other legal entity.
(i) The Rights Agent may execute and exercise any of
the rights or powers hereby vested in it or perform any duty
hereunder either itself or by or through its attorneys or agents,
and the Rights Agent shall not be answerable or accountable for
any act, default, neglect or misconduct of any such attorneys or
agents or for any loss to the Company resulting from any such
act, default, neglect or misconduct; provided, however,
reasonable care was exercised in the selection and continued
employment thereof.
(j) No provision of this Agreement shall require the
Rights Agent to expend or risk its own funds or otherwise incur
any financial liability in the performance of any of its duties
hereunder or in the exercise of its rights if there shall be
reasonable grounds for believing that repayment of such funds or
adequate indemnification against such risk or liability is not
reasonably assured to it.
(k) If, with respect to any Right Certificate
surrendered to the Rights Agent for exercise or transfer, the
certificate attached to the form of assignment or form of
election to purchase, as the case may be, has either not been
completed or indicates an affirmative response to clause 1 and/or
2 thereof, the Rights Agent shall not take any further action
with respect to such requested exercise or transfer without first
consulting with the Company.
Section 21. Change of Rights Agent. The Rights Agent
or any successor Rights Agent may resign and be discharged from
its duties under this Agreement upon thirty days' notice in
writing mailed to the Company, and shall provide notice thereof
to each transfer agent of the Common Stock and Preferred Stock,
by registered or certified mail, and to the holders of the Rights
Certificates in accordance with Section 26 hereof, or, if prior
to the Distribution Date, to the holders of Rights through any
filing made by the Company pursuant to the Exchange Act. The
Company may remove the Rights Agent or any successor Rights Agent
upon thirty days' notice in writing mailed to the Rights Agent or
successor Rights Agent, as the case may be, and shall provide
notice thereof to each transfer agent of the Common Stock and
Preferred Stock, by registered or certified mail, and to the
holders of the Rights Certificates in accordance with Section 26
hereof, or, if prior to the Distribution Date, to the holders of
Rights through any filing made by the Company pursuant to the
Exchange Act. If the Rights Agent shall resign or be removed or
shall otherwise become incapable of acting, the Company shall
appoint a successor to the Rights Agent. If the Company shall
fail to make such appointment within a period of thirty days
after giving notice of such removal or after it has been notified
in writing of such resignation or incapacity by the resigning or
incapacitated Rights Agent or by the holder of a Rights
Certificate (who shall, with such notice, submit his Rights
Certificate for inspection by the Company), then any registered
holder of any Rights Certificate or the resigning or removed
Rights Agent may apply to any court of competent jurisdiction for
the appointment of a new Rights Agent. Any successor Rights
Agent, whether appointed by the Company or by such a court, shall
be a corporation organized and doing business under the laws of
the United States or of the State of Kansas, the State of
Missouri or the State of New York (or of any other state of the
United States so long as such corporation is authorized to do
business as a banking institution in the State of Kansas, the
State of Missouri or the State of New York), in good standing,
having a principal office in the State of Kansas, the State of
Missouri or the State of New York, which is authorized under such
laws to exercise corporate trust powers and is subject to
supervision or examination by federal or state authority and
which has at the time of its appointment as Rights Agent a
combined capital and surplus of at least $100,000,000. After
appointment, the successor Rights Agent shall be vested with the
same powers, rights, duties and responsibilities as if it had
been originally named as Rights Agent without further act or
deed; but the predecessor Rights Agent shall deliver and transfer
to the successor Rights Agent any property at the time held by it
hereunder, and execute and deliver any further assurance,
conveyance, act or deed necessary for the purpose. Not later
than the effective date of any such appointment, the Company
shall file notice thereof in writing with the predecessor Rights
Agent and each transfer agent of the Common Stock and the
Preferred Stock, and mail a notice thereof in writing to the
registered holders of the Rights Certificates in accordance with
Section 26 hereof, or, if prior to the Distribution Date, give
notice to the holders of Rights through any filing made by the
Company pursuant to the Exchange Act. Failure to give any notice
provided for in this Section 21, however, or any defect therein,
shall not affect the legality or validity of the resignation or
removal of the Rights Agent or the appointment of the successor
Rights Agent, as the case may be.
Section 22. Issuance of New Rights Certificates.
Notwithstanding any of the provisions of this Agreement or of the
Rights to the contrary, the Company may, at its option, issue new
Rights Certificates evidencing Rights in such form as may be
approved by its Board of Directors to reflect any adjustment or
change in the Purchase Price and the number or kind or class of
shares or other securities or property purchasable under the
Rights Certificates made in accordance with the provisions of
this Agreement. In addition, in connection with the issuance or
sale of shares of Common Stock following the Distribution Date
and prior to the redemption or expiration of the Rights, the
Company (a) shall, with respect to shares of Common Stock so
issued or sold pursuant to the exercise of stock options or under
any employee plan or arrangement, granted or awarded as of the
Distribution Date, or upon the exercise, conversion or exchange
of securities hereinafter issued by the Company, and (b) may, in
any other case, if deemed necessary or appropriate by the Board
of Directors of the Company, issue Rights Certificates
representing the appropriate number of Rights in connection with
such issuance or sale; provided, however, that (i) no such Rights
Certificate shall be issued and this sentence shall be null and
void ab initio if, and to the extent that, the Company shall be
advised by counsel that such issuance would create a significant
risk of material adverse tax consequences to the Company or the
Person to whom such Rights Certificate would be issued, and (ii)
no such Rights Certificate shall be issued if, and to the extent
that, appropriate adjustment shall otherwise have been made in
lieu of the issuance thereof.
Section 23. Redemption and Termination.
(a) The Board of Directors of the Company may, at its
option, at any time prior to the earlier of (i) the close of
business on the tenth Business Day following the Stock
Acquisition Date (or, if the Stock Acquisition Date shall have
occurred prior to the time the Initial Charter Amendment has been
filed pursuant to K.S.A. Section 17-6003(d)), the close of business on
the tenth Business Day following the date of such filing), or
(ii) the time at which the Rights expire pursuant to this
Agreement, redeem all but not less than all the then outstanding
Rights at a redemption price of $.01 per Right, as such amount
may be appropriately adjusted to reflect any stock split, stock
dividend or similar transaction occurring after the date hereof
(such redemption price being hereinafter referred to as the
"Redemption Price"). Notwithstanding anything contained in this
Agreement to the contrary, the Rights shall not be exercisable
after the first occurrence of a Section 11(a)(ii) Event until
such time as the Company's right of redemption hereunder has
expired. The Company may, at its option, pay the Redemption
Price in cash, shares of any class or series of Common Stock
(based on the Current Market Price of the applicable class or
series of Common Stock at the time of redemption) or any other
form of consideration deemed appropriate by the Board of
Directors. The redemption of the Rights may be made effective at
such time, on such basis and with such conditions as the Board of
Directors in its sole discretion may establish.
(b) Immediately upon the action of the Board of
Directors of the Company ordering the redemption of the Rights
pursuant to Section 23(a) (or at such later time as the Board of
Directors may establish for the effectiveness of such
redemption), notice of which shall have been provided to the
Rights Agent, and without any further action and without any
notice, the right to exercise the Rights will terminate and the
only right thereafter of the holders of Rights shall be to
receive the Redemption Price for each Right so held. Promptly
after the action of the Board of Directors ordering the redemp
tion of the Rights becoming effective, the Company shall mail a
notice of such redemption to the Rights Agent and the holders of
the then outstanding Rights in accordance with Section 26 hereof
(provided that the failure to give, or any defect in, such notice
shall not affect the validity of such redemption). Any notice
which is mailed in the manner provided in Section 26 hereof shall
be deemed given, whether or not the holder receives the notice.
Each such notice of redemption will state the method by which the
payment of the Redemption Price will be made.
Section 24. Exchange.
(a) The Board of Directors of the Company may, at its
option, at any time after any Person becomes an Acquiring Person,
exchange all or part of the then outstanding and exercisable
Rights (which shall not include Rights that have become void
pursuant to the provisions of Section 7(e) hereof) for shares of
Common Stock at an exchange ratio of one share of Common Stock
per Right, appropriately adjusted to reflect any stock split,
stock dividend or similar transaction occurring after the date
hereof (such exchange ratio being hereinafter referred to as the
"Exchange Ratio"), provided that the shares of Common Stock so
exchanged shall be of the same class or series which the holders
of such Rights would have been entitled to receive upon the
exercise thereof. Notwithstanding the foregoing, the Board of
Directors shall not be empowered to effect such exchange at any
time after any Person (other than (i) the Company, (ii) any
Subsidiary of the Company, (iii) any employee benefit plan of the
Company or any Subsidiary of the Company, or any person or entity
organized, appointed or established by the Company for or
pursuant to the terms of any such plan), together with all
Affiliates and Associates of such Person, becomes the Beneficial
Owner of Voting Securities of the Company then outstanding
representing 50% or more of the Voting Power of the Company.
(b) Immediately upon the action of the Board of
Directors of the Company ordering the exchange of any Rights
pursuant to Section 24(a) and without any further action and
without any notice, the right to exercise such Rights shall
terminate and the only right thereafter of a holder of such
Rights shall be to receive that number of shares of Common Stock
equal to the number of such Rights held by such holder multiplied
by the Exchange Ratio, provided that the shares of Common Stock
so exchanged shall be of the same class or series which the
holder of such Rights would have been entitled to receive upon
the exercise thereof. The Company shall promptly make a public
announcement of any such exchange; provided, however, that the
failure to make, or any defect in, such public announcement shall
not affect the validity of such exchange. Promptly after the
action of the Board of Directors ordering the exchange of the
Rights becoming effective, the Company shall mail a notice of
such exchange to the Rights Agent and all of the holders of the
then outstanding Rights in accordance with Section 26 hereof
(provided that the failure to give, or any defect in, such notice
shall not affect the validity of such exchange). Any notice
which is mailed in the manner provided in Section 26 hereof shall
be deemed given, whether or not the holder receives the notice.
Each such notice of exchange will state the method by which the
exchange of the shares of Common Stock for Rights will be
effected and, in the event of any partial exchange, the number of
Rights which will be exchanged. Any partial exchange shall be
effected based on the number of Rights (other than Rights which
have become void pursuant to the provisions of Section 7(e)
hereof) held by each holder of Rights.
(c) In the event that there shall not be authorized
and unissued shares of the applicable class or series of Common
Stock and/or authorized and issued shares of the applicable class
or series of Common Stock held in its treasury sufficient to
permit any exchange of Rights as contemplated in accordance with
this Section 24, the Company shall take all such action as may be
necessary to authorize additional shares of the applicable class
or series of Common Stock for issuance upon exchange of the
Rights. In the event the Company shall, after good faith effort,
be unable to take all such action as may be necessary to
authorize such additional shares of the applicable class or
series of Common Stock, the Company shall substitute, for each
share of such class or series of Common Stock that would
otherwise be issuable upon exchange of a Right, a number of
shares of the applicable series of Preferred Stock or fraction
thereof (subject to Section 14(b) hereof) such that the Current
Market Price per share of the applicable series of Preferred
Stock multiplied by such number or fraction is equal to the
Current Market Price per share of such class or series of Common
Stock as of the date of issuance of such shares of such series of
Preferred Stock or fraction thereof.
(d) The Company shall not be required to issue
fractions of shares of Common Stock or to distribute certificates
which evidence fractional shares of Common Stock. In lieu of
such fractional shares of Common Stock, the Company shall pay to
the registered holders of the Right Certificates with regard to
which such fractional shares of Common Stock would otherwise be
issuable an amount in cash equal to the same fraction of the
Current Market Price per share of the applicable class or series
of Common Stock as of the Trading Day immediately prior to the
record date of exchange pursuant to this Section 24.
Section 25. Notice of Certain Events.
(a) In case the Company shall propose, at any time
after the Distribution Date, (i) to pay any dividend payable in
stock of any class to the holders of Preferred Stock or to make
any other distribution to the holders of Preferred Stock (other
than a regular quarterly cash dividend out of earnings or
retained earnings of the Company), or (ii) to offer to the
holders of Preferred Stock rights or warrants to subscribe for or
to purchase any additional shares of Preferred Stock or shares of
stock of any class or any other securities, rights or options, or
(iii) to effect any reclassification of its Preferred Stock
(other than a reclassification involving only the subdivision of
outstanding shares of Preferred Stock), or (iv) to effect any
consolidation or merger into or with any other Person (other than
a Subsidiary of the Company in a transaction which complies with
Section 11(o) hereof), or to effect any sale or other transfer
(or to permit one or more of its Subsidiaries to effect any sale
or other transfer), in one transaction or a series of related
transactions, of more than 50% of the assets or earning power of
the Company and its Subsidiaries (taken as a whole) to any other
Person or Persons (other than the Company and/or any of its
Subsidiaries in one or more transactions each of which complies
with Section 11(o) hereof), or (v) to effect the liquidation,
dissolution or winding up of the Company, then, in each such
case, the Company shall give to each holder of a Rights
Certificate, to the extent feasible and in accordance with
Section 26 hereof, a notice of such proposed action, which shall
specify the record date for the purposes of such stock dividend,
distribution of rights or warrants, or the date on which such
reclassification, consolidation, merger, sale, transfer,
liquidation, dissolution, or winding up is to take place and the
date of participation therein by the holders of the shares of
Preferred Stock, if any such date is to be fixed, and such notice
shall be so given in the case of any action covered by clause (i)
or (ii) above at least twenty days prior to the record date for
determining holders of the shares of Preferred Stock for purposes
of such action, and in the case of any such other action, at
least twenty days prior to the date of the taking of such
proposed action or the date of participation therein by the
holders of the shares of Preferred Stock, whichever shall be the
earlier.
(b) In case a Section 11(a)(ii) Event shall occur,
then, in any such case, (i) the Company shall as soon as
practicable thereafter give to each holder of a Rights
Certificate, to the extent feasible and in accordance with
Section 26 hereof, a notice of the occurrence of such event,
which shall specify the event and the consequences of the event
to holders of Rights under Section 11(a)(ii) hereof, and (ii) all
references in the preceding paragraph to Preferred Stock shall be
deemed thereafter to refer to Common Stock and/or, if
appropriate, other securities.
Section 26. Notices. Notices or demands authorized
by this Agreement to be given or made by the Rights Agent or by
the holder of any Rights Certificate to or on the Company shall
be sufficiently given or made if sent by first-class mail,
postage prepaid, addressed (until another address is filed in
writing with the Rights Agent) as follows:
Sprint Corporation
2330 Shawnee Mission Parkway
Westwood, Kansas 66205
Attention: General Counsel
Subject to the provisions of Section 21, any notice or demand
authorized by this Agreement to be given or made by the Company
or by the holder of any Rights Certificate to or on the Rights
Agent shall be sufficiently given or made if sent by first-class
mail, postage prepaid, addressed (until another address is filed
in writing with the Company) as follows:
UMB Bank, n.a.
Post Office Box 410064
Kansas City, Missouri 64141-0064
Attention: Corporate Trust Department
Notices or demands authorized by this Agreement to be given or
made by the Company or the Rights Agent to the holder of any
Rights Certificate (or, if prior to the Distribution Date, to the
holder of certificates representing shares of Common Stock) shall
be sufficiently given or made if sent by first-class mail,
postage prepaid, addressed to such holder at the address of such
holder as shown on the registry books of the Rights Agent (or, if
prior to the Distribution Date, on the registry books of the
Transfer Agent for the Common Stock of the Company).
Section 27. Supplements and Amendments. Except as
provided in the penultimate sentence of this Section 27, for so
long as the Rights are then redeemable, the Company may in its
sole and absolute discretion, and the Rights Agent shall if the
Company so directs, supplement or amend any provision of this
Agreement without the approval of any holders of the Rights. At
any time when the Rights are no longer redeemable, except as
provided in the penultimate sentence of this Section 27, the
Company may, and the Rights Agent shall if the Company so
directs, supplement or amend this Agreement without the approval
of any holders of Rights Certificates in order to (i) cure any
ambiguity, (ii) correct or supplement any provision contained
herein which may be defective or inconsistent with any other
provisions herein, (iii) shorten or lengthen any time period
hereunder, or (iv) change or supplement the provisions hereunder
in any manner which the Company may deem necessary or desirable;
provided that no such supplement or amendment adversely affects
the interests of the holders of Rights as such (other than an
Acquiring Person or an Affiliate or Associate of an Acquiring Per
son) and no such amendment may cause the Rights again to become
redeemable or cause the Agreement again to become amendable other
than in accordance with this sentence. Notwithstanding anything
contained in this Agreement to the contrary, no supplement or
amendment shall be made which changes the Redemption Price. Upon
the delivery of a certificate from an appropriate officer of the
Company which states that the proposed supplement or amendment is
in compliance with the terms of this Section 27, the Rights Agent
shall execute such supplement or amendment; provided, however,
that the Rights Agent may, but shall not be obligated to, enter
into any such supplement or amendment which adversely affects the
Rights Agent's own rights, duties or immunities under this
Agreement.
Section 28. Successors. All the covenants and
provisions of this Agreement by or for the benefit of the Company
or the Rights Agent shall bind and inure to the benefit of their
respective successors and assigns hereunder.
Section 29. Determinations and Actions by the Board
of Directors, etc. For all purposes of this Agreement, any
calculation of the number or amount of Voting Securities
outstanding at any particular time, including for purposes of
determining the particular percentage of the Voting Power
represented by such Voting Securities of which any Person is the
Beneficial Owner, shall be made in accordance with the last
sentence of Rule 13d-3(d)(1)(i) of the General Rules and
Regulations under the Exchange Act as such Rule is in effect on
the date of this Agreement. The Board of Directors of the
Company, except as otherwise specifically provided for herein,
shall have the exclusive power and authority to administer this
Agreement and to exercise all rights and powers specifically
granted to the Board or to the Company, or as may be necessary or
advisable in the administration of this Agreement, including,
without limitation the right and power to (i) interpret the
provisions of this Agreement, and (ii) make all determinations
deemed necessary or advisable for the administration of this
Agreement (including a determination to redeem or not redeem the
Rights or to amend the Agreement). All such actions,
calculations, interpretations and determinations (including, for
purposes of clause (y) below, all omissions with respect to the
foregoing) which are done or made by the Board in good faith,
shall (x) be final, conclusive and binding on the Company, the
Rights Agent, the holders of the Rights Certificates (and, prior
to the Distribution Date, registered holders of the Common Stock)
and all other parties, and (y) not subject the Board to any
liability to the holders of the Rights.
Section 30. Benefits of this Agreement. Nothing in
this Agreement shall be construed to give to any Person other
than the Company, the Rights Agent and the registered holders of
the Rights Certificates (and, prior to the Distribution Date,
registered holders of the Common Stock) any legal or equitable
right, remedy or claim under this Agreement; but this Agreement
shall be for the sole and exclusive benefit of the Company, the
Rights Agent and the registered holders of the Rights Certifi
cates (and, prior to the Distribution Date, registered holders of
the Common Stock).
Section 31. Severability. If any term, provision,
covenant or restriction of this Agreement is held by a court of
competent jurisdiction or other authority to be invalid, void or
unenforceable, the remainder of the terms, provisions, covenants
and restrictions of this Agreement shall remain in full force and
effect and shall in no way be affected, impaired or invalidated;
provided, however, that notwithstanding anything in this
Agreement to the contrary, if any such term, provision, covenant
or restriction is held by such court or authority to be invalid,
void or unenforceable and the Board of Directors of the Company
determines in its good faith judgment that severing the invalid
language from this Agreement would adversely affect the purpose
or effect of this Agreement, the right of redemption set forth in
Section 23 hereof shall be reinstated and shall not expire until
the close of business on the tenth Business Day following the
date of such determination by the Board of Directors. Without
limiting the foregoing, if any provision requiring that a
determination be made by less than the entire Board (or at a time
or with the concurrence of a group of directors consisting of
less than the entire Board) is held by a court of competent
jurisdiction or other authority to be invalid, void or
unenforceable, such determination shall then be made by the Board
in accordance with applicable law and the Company's Articles of
Incorporation and Bylaws.
Section 32. Governing Law. This Agreement, each
Right and each Rights Certificate issued hereunder shall be
deemed to be a contract made under the laws of the State of
Kansas and for all purposes shall be governed by and construed in
accordance with the laws of such State applicable to contracts
made and to be performed entirely within such State.
Section 33. Counterparts. This Agreement may be
executed in any number of counterparts and each of such
counterparts shall for all purposes be deemed to be an original,
and all such counterparts shall together constitute but one and
the same instrument.
Section 34. Descriptive Headings. Descriptive
headings of the several Sections of this Agreement are inserted
for convenience only and shall not control or affect the meaning
or construction of any of the provisions hereof.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed and their respective corporate
seals to be hereunto affixed and attested, all as of the day and
year first above written.
SPRINT CORPORATION
By
Attest:
Name:
Title:
By
Name:
Title:
UMB BANK, N.A.
By
Attest:
Name:
Title:
By
Name:
Title:
<PAGE>
EXHIBIT A-1
AMENDED AND RESTATED
CERTIFICATE OF DESIGNATION, PREFERENCES AND RIGHTS
OF PREFERRED STOCK-SIXTH SERIES
OF
SPRINT CORPORATION
STATE OF KANSAS )
) ss.
COUNTY OF JOHNSON )
We, Don A. Jensen, Vice President, and Michael T. Hyde,
Assistant Secretary, of Sprint Corporation, a corporation
organized and existing under the laws of the State of Kansas and
whose registered office is 2330 Shawnee Mission Parkway,
Westwood, Johnson County, Kansas, do hereby certify that pursuant
to authority expressly vested in the Board of Directors of the
Corporation by the provisions of the Articles of Incorporation,
as amended, and in accordance with the provisions of K.S.A. Section
17-6401, as amended, the Board of Directors of said Corporation, at
the regular meeting of the Board of Directors held on the 29th
day of June, 1998, adopted the following resolution amending and
restating the series of Serial Preferred Stock designated as
Preferred Stock-Sixth Series, Junior Participating:
RESOLVED, that pursuant to the authority vested in
the Board of Directors of this Corporation by the
provisions of its Articles of Incorporation, as amended
(the "Articles of Incorporation"), the Certificate of
Designation, Preferences and Rights of Preferred Stock-
Sixth Series, adopted by the Board of Directors on June
9, 1997, is hereby amended and restated to read in its
entirety as follows:
PREFERRED STOCK-SIXTH SERIES
(1) Designation and Amount. The shares of such
Series shall be designated as "Preferred Stock-Sixth
Series, Junior Participating" (hereafter "Sixth
Series") and the number of shares constituting such
series shall be one million five hundred thousand
(1,500,000).
(2) Dividends.
(A) Subject to the prior and superior rights
of the holders of any shares of any other series
of Preferred Stock of the Corporation ("Preferred
Stock"), or any similar stock ranking prior and
superior to the shares of the Sixth Series with
respect to dividends, the holders of shares of the
Sixth Series, in preference to the holders of
Common Stock and any shares of stock ranking
junior (either as to dividends or upon
liquidation, dissolution or winding up) to the
shares of the Sixth Series (collectively with such
Common Stock, "Junior Stock"), shall be entitled
to receive, when, as and if declared by the Board
of Directors out of funds legally available for
the purpose, quarterly dividends payable in cash,
on January 1, April 1, July 1 and October 1 in
each year (each such date being referred to herein
as a "Quarterly Dividend Payment Date") in an
amount (rounded to the nearest cent) equal to the
greater of (a) $100.00 or (b) the product of the
FON Group Multiple (as defined below) times the
aggregate per share amount of all cash dividends,
plus the product of the FON Group Multiple times
the aggregate per share amount (payable in cash,
based upon the fair market value at the time the
non-cash dividend or other distribution is
declared as determined in good faith by the Board
of Directors) of all non-cash dividends or other
distributions other than a dividend payable in
shares of FON Group Common Stock, or a subdivision
of the outstanding shares of FON Group Common
Stock (by reclassification or otherwise), declared
(but not withdrawn) on the FON Group Common Stock
since the immediately preceding Quarterly Dividend
Payment Date, or, with respect to the first
Quarterly Dividend Payment Date, since the first
issuance of any share or fraction of a share of
the Sixth Series.
(B) As used herein, the FON Group Multiple
shall initially be 1,000. In the event the
Corporation shall (i) declare any dividend on FON
Group Common Stock payable in shares of such
stock, (ii) subdivide the outstanding FON Group
Common Stock, or (iii) combine the outstanding
FON Group Common Stock into a smaller number of
shares, then in each such case the FON Group
Multiple shall be adjusted by multiplying such
amount by a fraction the numerator of which is the
number of shares of FON Group Common Stock
outstanding immediately after such event and the
denominator of which is the number of shares of
FON Group Common Stock that were outstanding
immediately prior to such event.
(C) The Corporation shall declare a dividend
or distribution on the Sixth Series as provided
above in paragraph (A) of this Section (2)
immediately after it declares a dividend or
distribution on the FON Group Common Stock (other
than a dividend payable in shares of FON Group
Common Stock); provided, however, that in the
event no dividend or distribution shall have been
declared on the FON Group Common Stock during the
period between any Quarterly Dividend Payment Date
and the next subsequent Quarterly Dividend Payment
Date, the minimum quarterly dividend of $100.00 on
the Sixth Series shall nevertheless be payable on
such subsequent Quarterly Dividend Payment Date.
(D) Dividends shall begin to accrue and be
cumulative on outstanding shares of Sixth Series
from the Quarterly Dividend Payment Date next
preceding the date of issue of such shares of
Sixth Series, unless the date of issue of such
shares of Sixth Series is prior to the record date
for the first Quarterly Dividend Payment Date, in
which case dividends on such shares shall begin to
accrue from the date of issue of such shares, or
unless the date of issue is a Quarterly Dividend
Payment Date or is a date after the record date
for the determination of holders of shares of
Sixth Series entitled to receive a quarterly
dividend and before such Quarterly Dividend
Payment Date, in either of which cases such
dividends shall begin to accrue and be cumulative
from such Quarterly Dividend Payment Date.
Accrued but unpaid dividends shall cumulate but
shall not bear interest. Dividends paid on the
shares of Sixth Series in an amount less than the
total amount of such dividends at the time accrued
and payable on such shares shall be allocated pro
rata on a share-by-share basis among all such
shares at the time outstanding.
(3) Voting Rights. Except as prescribed by law
and in addition to the rights provided for in ARTICLE
SIXTH of the Articles of Incorporation of the
Corporation, as amended, the holders of the shares of
the Sixth Series shall be entitled to vote at any
annual or special meeting of the stockholders of the
Corporation, for each share of Sixth Series, a number
of votes equal to the product of the FON Group Multiple
then in effect times the highest number of votes that
any share of FON Group Common Stock entitles its holder
to vote at such meeting of stockholders of the
Corporation. The holders of the shares of the Sixth
Series shall be entitled to exercise such voting rights
with the holders of Sprint Common Stock prior to the
Recapitalization and Series 1 FON Stock after the
Recapitalization, without distinction as to class, at
any annual or special meeting of stockholders for the
election of directors and on any other matter submitted
to a vote of the stockholders of the Corporation at
such meeting. Except as otherwise provided herein, in
the Articles of Incorporation of the Corporation, in
any other Certificate of Designation establishing a
series of Preferred Stock or any similar stock or
otherwise required by law, the holders of the shares of
the Sixth Series and the holders of Common Stock shall
vote together as one class on all matters submitted to
a vote of stockholders of the Corporation.
(4) Certain Restrictions.
(A) Whenever quarterly dividends or other
dividends or distributions payable on the shares
of the Sixth Series as provided in Section (2) are
in arrears, thereafter and until all accrued and
unpaid dividends and distributions, whether or not
declared, on shares of the Sixth Series
outstanding shall have been paid in full, the
Corporation shall not:
(i) declare or pay dividends (except a
dividend payable in FON Group Common Stock
and/or any other Junior Stock) on, make any
other distributions on, or redeem or purchase
or otherwise acquire for consideration any
shares of Junior Stock;
(ii) declare or pay dividends on or make
any other distribution on any shares of stock
ranking on a parity (either as to dividends
or upon liquidation, dissolution or winding
up) with the shares of the Sixth Series,
except dividends paid ratably on the shares
of the Sixth Series and all such parity stock
on which dividends are payable or in arrears
in proportion to the total amounts to which
the holders of all such shares are then
entitled;
(iii) redeem or purchase or otherwise
acquire for consideration any shares ranking
on a parity (either as to dividends or upon
dissolution, liquidation or winding up) with
the shares of the Sixth Series, provided that
the Corporation may at any time redeem,
purchase or otherwise acquire shares of such
parity stock in exchange for shares of Junior
Stock; or
(iv) purchase or otherwise acquire for
consideration any shares of the Sixth Series,
or any shares of stock ranking on a parity
with the shares of the Sixth Series, except
in accordance with a purchase offer made in
writing or by publication (as determined by
the Board of Directors) to all holders of
such shares upon such terms as the Board of
Directors, after consideration of the
respective annual dividend rates and other
relative rights and preferences of the
respective series and classes, shall
determine in good faith will result in fair
and equitable treatment among the respective
series or classes.
(B) The Corporation shall not permit any
subsidiary of the Corporation to purchase or
otherwise acquire for consideration any shares of
stock of the Corporation unless the Corporation
could, under paragraph (A) of this Section (4),
purchase or otherwise acquire such shares at such
time and in such manner.
(5) Reacquired Shares. Any shares of the Sixth
Series purchased or otherwise acquired by the
Corporation in any manner whatsoever shall be retired
and canceled promptly after the acquisition thereof.
All such shares shall upon their cancellation become
authorized but unissued shares of Preferred Stock and
may be reissued as part of a new series of Preferred
Stock to be created by resolution or resolutions of the
Board of Directors, subject to the conditions and
restrictions on issuance set forth herein, in the
Articles of Incorporation, in any other Certificate of
Designation establishing a series of Preferred Stock or
any similar stock or as otherwise required by law.
(6) Liquidation, Dissolution or Winding Up.
(A) In the event of any voluntary or
involuntary liquidation, dissolution or winding up
of the Corporation, the holders of the shares of
the Sixth Series shall be entitled to receive, in
preference to the holders of Junior Stock, the
greater of (a) $1,000.00 per share, plus accrued
and unpaid dividends to the date of distribution,
whether or not earned or declared, or (b) an
amount per share equal to the product of the FON
Group Multiple then in effect times the aggregate
amount to be distributed per share to holders of
FON Group Common Stock.
(B) In the event of any voluntary or
involuntary liquidation, dissolution or winding up
of the Corporation, the holders of stock ranking
on a parity (either as to dividends or upon
liquidation, dissolution or winding up) with the
Sixth Series shall not receive any distributions
except for distributions made ratably on the Sixth
Series and all other such parity stock in
proportion to the total amounts to which the
holders of all such shares are entitled upon such
liquidation, dissolution or winding up.
(7) Consolidation, Merger, etc. In case the
Corporation shall enter into any consolidation, merger,
combination or other transaction in which the shares of
Common Stock are exchanged for or changed into other
stock or securities, cash and/or any other property,
then in any such case the shares of the Sixth Series
shall at the same time be similarly exchanged or
changed in an amount per share equal to the product of
the FON Group Multiple then in effect times the
aggregate amount of stock, securities, cash and/or any
other property (payable in kind), as the case may be,
into which or for which each share of FON Group Common
Stock is changed or exchanged.
(8) Ranking. The shares of the Sixth Series
shall rank junior to all other series of the
Corporation's Preferred Stock as to the payment of
dividends and the distribution of assets, unless the
terms of any such series shall provide otherwise. The
shares of the Sixth Series shall rank on a parity with
the Corporation's Preferred Stock-Series Eighth, Junior
Participating, as to the payment of dividends and the
distribution of assets. Nothing herein shall preclude
the Board of Directors of the Corporation from creating
any additional series of Preferred Stock or any similar
stock ranking on a parity with or prior to the shares
of the Sixth Series as to the payment of dividends or
distribution of assets.
(9) Fractional Shares. Shares of the Sixth
Series may be issued in fractions of a share which
shall entitle the holder, in proportion to such
holder's fractional shares, to exercise voting rights,
receive dividends, participate in distributions and to
have the benefit of all other rights of holders of
shares of the Sixth Series.
(10) Definitions. For purposes of this Amended
and Restated Certificate of Designation, Preferences
and Rights of Sixth Series, unless the context
otherwise requires:
(A) "Class A Common Stock-Series DT" (i)
prior to the filing of the Subsequent Charter
Amendment pursuant to K.S.A. Section 17-6003(d),
shall have the meaning set forth in the Initial
Charter Amendment, and (ii) after the filing of the
Subsequent Charter Amendment pursuant to K.S.A.
Section 17-6003(d), shall have the meaning set forth
in the Subsequent Charter Amendment.
(B) "Common Stock" shall mean (A) if prior
to the filing of the Subsequent Charter Amendment
pursuant to K.S.A. Section 17-6003(d): Sprint Common
Stock, and/or Series 2 Common Stock, and/or Old
Class A Common Stock, and/or Class A Common Stock-
Series DT, and/or Series 1 PCS Stock, and/or
Series 2 PCS Stock, and/or Series 3 PCS Stock, in
each case as the context requires, and (B) if
after the filing of the Subsequent Charter
Amendment: Series 1 FON Stock, and/or Series 2
FON Stock, and/or Series 3 FON Stock, and/or Old
Class A Common Stock, and/or Class A Common Stock-
Series DT, and/or Series 1 PCS Stock, and/or
Series 2 PCS Stock, and/or Series 3 PCS Stock, in
each case as the context requires.
(C) "FON Group Common Stock" shall mean
(i) if prior to the filing of the Subsequent
Charter Amendment pursuant to K.S.A. Section
17-6003(d), Sprint Common Stock and/or Series 2
Common Stock, in each case as the context requires,
and (ii) if after the filing of the Subsequent Charter
Amendment pursuant to K.S.A. Section 17-6003(d),
Series 1 FON Stock, and/or Series 2 FON Stock,
and/or Series 3 FON Stock, in each case as the
context requires.
(D) "FON Group Multiple" shall have the
meaning set forth in Section 2(B).
(E) "Initial Charter Amendment" shall have
the meaning set forth in the Restructuring and
Merger Agreement.
(F) "Old Class A Common Stock" (i) prior to
the filing of the Subsequent Charter Amendment
pursuant to K.S.A. Section 17-6003(d), shall have the
meaning set forth in the Initial Charter
Amendment, and (ii) after the filing of the
Subsequent Charter Amendment pursuant to K.S.A.
Section 17-6003(d), shall have the meaning set forth
in the Subsequent Charter Amendment.
(G) "Recapitalization" shall mean the re-
classification of each outstanding share of Sprint
Common Stock into one share of Series 1 FON Stock
and one-half of a share of Series 1 PCS Stock to
be effected by filing of the Subsequent Charter
Amendment.
(H) "Restructuring and Merger Agreement"
shall mean that certain agreement, dated as of May
26, 1998, by and among the Corporation, Tele-
Communications, Inc., a Delaware corporation,
Comcast Corporation, a Pennsylvania corporation,
Cox Communications, Inc., a Delaware corporation,
TCI Spectrum Holdings, Inc., a Colorado
corporation, Comcast Telephony Services, a
Delaware general partnership, Cox Telephony
Partnership, a Delaware general partnership,
Sprint Enterprises, L.P., a Delaware limited
partnership, TCI Philadelphia Holdings, Inc., a
Delaware corporation, Com Telephony Services,
Inc., a Delaware corporation, Comcast Telephony
Services, Inc., a Delaware corporation, Cox
Telephony Partners, Inc., a Delaware corporation,
Cox Communications Wireless, Inc., a Delaware
corporation, SWV One, Inc., a Delaware corpora-
tion, SWV Two, Inc., a Delaware corporation, SWV
Three, Inc., a Delaware corporation, SWV Four,
Inc., a Delaware corporation, SWV Five, Inc., a
Delaware corporation, and SWV Six, Inc., a
Colorado corporation.
(I) "Series 2 Common Stock" shall mean the
Common Stock - Series 2, par value $2.50 per
share, of the Corporation, which will be created
by the filing of the Initial Charter Amendment.
(J) "Series 1 FON Stock" shall mean the FON
Common Stock - Series 1, par value $2.00 per
share, of the Corporation, which will be created
by the filing of the Subsequent Charter Amendment.
(K) "Series 2 FON Stock" shall mean the FON
Common Stock - Series 2, par value $2.00 per
share, of the Corporation, which will be created
by the filing of the Subsequent Charter Amendment.
(L) "Series 3 FON Stock" shall mean the FON
Common Stock - Series 3, par value $2.00 per
share, of the Corporation, which will be created
by the filing of the Subsequent Charter Amendment.
(M) "Series 1 PCS Stock" shall mean the PCS
Common Stock - Series 1, par value $1.00 per
share, of the Corporation, which will be created
by the filing of the Initial Charter Amendment.
(N) "Series 2 PCS Stock" shall mean the PCS
Common Stock - Series 2, par value $1.00 per
share, of the Corporation, which will be created
by the filing of the Initial Charter Amendment.
(O) "Series 3 PCS Stock" shall mean the PCS
Common Stock - Series 3, par value $1.00 per
share, of the Corporation, which will be created
by the filing of the Initial Charter Amendment.
(P) "Sprint Common Stock" shall mean Common
Stock, par value $2.50 per share, of the
Corporation, as provided for in the Initial
Charter Amendment.
(Q) "Subsequent Charter Amendment" shall
have the meaning set forth in the Restructuring
and Merger Agreement.
IN WITNESS WHEREOF, we have hereunto set our hands and
affixed the seal of said Corporation this ___ day of ___________,
1998.
Don A. Jensen, Vice President
(CORPORATE SEAL)
Michael T. Hyde, Assistant
Secretary
STATE OF KANSAS )
) ss.
COUNTY OF JOHNSON )
BE IT REMEMBERED, that before me, a notary public in
and for the aforesaid county and state, personally appeared Don
A. Jensen, Vice President, and Michael T. Hyde, Assistant
Secretary, of Sprint Corporation, a corporation, who are known to
me to be the same persons who executed the foregoing instrument,
and duly acknowledged the execution of the same this ___ day of
__________, 1998.
Notary Public
My commission expires:
<PAGE>
EXHIBIT A-2
CERTIFICATE OF DESIGNATION, PREFERENCES AND RIGHTS
OF PREFERRED STOCK-EIGHTH SERIES
OF
SPRINT CORPORATION
STATE OF KANSAS )
) ss.
COUNTY OF JOHNSON )
We, Don A. Jensen, Vice President, and Michael T. Hyde,
Assistant Secretary, of Sprint Corporation, a corporation
organized and existing under the laws of the State of Kansas and
whose registered office is 2330 Shawnee Mission Parkway,
Westwood, Johnson County, Kansas, do hereby certify that pursuant
to authority expressly vested in the Board of Directors of the
Corporation by the provisions of the Articles of Incorporation,
as amended, and in accordance with the provisions of K.S.A. Section
17-6401, as amended, the Board of Directors of said Corporation, at
the regular meeting of the Board of Directors held on the 29th
day of June, 1998, adopted the following resolution establishing
the series of Serial Preferred Stock designated as Preferred
Stock-Eighth Series, Junior Participating:
RESOLVED, that pursuant to the authority vested in
the Board of Directors of this Corporation by the
provisions of its Articles of Incorporation, as amended
(the "Articles of Incorporation"), a series of
Preferred Stock, without par value, of the Corporation
be and it hereby is created, and that the designation
and amount thereof and the voting powers, preferences
and relative, participating, optional and other special
rights of the shares of such series, and the
qualifications, limitations and restrictions thereof
are as follows:
PREFERRED STOCK-EIGHTH SERIES
(1) Designation and Amount. The shares of such
Series shall be designated as "Preferred Stock-Eighth
Series, Junior Participating" (hereafter "Eighth
Series") and the number of shares constituting such
series shall be one million two hundred fifty thousand
(1,250,000).
(2) Dividends.
(A) Subject to the prior and superior rights
of the holders of any shares of any other series
of Preferred Stock of the Corporation ("Preferred
Stock"), or any similar stock ranking prior and
superior to the shares of the Eighth Series with
respect to dividends, the holders of shares of the
Eighth Series, in preference to the holders of
Common Stock and any shares of stock ranking
junior (either as to dividends or upon
liquidation, dissolution or winding up) to the
shares of the Eighth Series (collectively with
such Common Stock, "Junior Stock"), shall be
entitled to receive, when, as and if declared by
the Board of Directors out of funds legally
available for the purpose, quarterly dividends
payable in cash, on January 1, April 1, July 1 and
October 1 in each year (each such date being
referred to herein as a "Quarterly Dividend
Payment Date") in an amount (rounded to the
nearest cent) equal to the greater of (a) $100.00
or (b) the product of the PCS Group Multiple (as
defined below) times the aggregate per share
amount of all cash dividends, plus the product of
the PCS Group Multiple times the aggregate per
share amount (payable in cash, based upon the fair
market value at the time the non-cash dividend or
other distribution is declared as determined in
good faith by the Board of Directors) of all non-
cash dividends or other distributions other than a
dividend payable in shares of PCS Group Common
Stock, or a subdivision of the outstanding shares
of PCS Group Common Stock (by reclassification or
otherwise), declared (but not withdrawn) on the
PCS Group Common Stock since the immediately
preceding Quarterly Dividend Payment Date, or,
with respect to the first Quarterly Dividend
Payment Date, since the first issuance of any
share or fraction of a share of the Eighth Series.
(B) As used herein, the PCS Group Multiple
shall initially be 1,000. In the event the
Corporation shall (i) declare any dividend on PCS
Group Common Stock payable in shares of PCS Group
Common Stock, (ii) subdivide the outstanding PCS
Group Common Stock, or (iii) combine the
outstanding PCS Group Common Stock into a smaller
number of shares, then in each such case the PCS
Group Multiple shall be adjusted by multiplying
such amount by a fraction the numerator of which
is the number of shares of PCS Group Common Stock
outstanding immediately after such event and the
denominator of which is the number of shares of
PCS Group Common Stock that were outstanding
immediately prior to such event.
(C) The Corporation shall declare a dividend
or distribution on the Eighth Series as provided
above in paragraph (A) of this Section (2)
immediately after it declares a dividend or
distribution on the PCS Group Common Stock (other
than a dividend payable in shares of PCS Group
Common Stock); provided, however, that in the
event no dividend or distribution shall have been
declared on the PCS Group Common Stock during the
period between any Quarterly Dividend Payment Date
and the next subsequent Quarterly Dividend Payment
Date, the minimum quarterly dividend of $100.00 on
the Eighth Series shall nevertheless be payable on
such subsequent Quarterly Dividend Payment Date.
(D) Dividends shall begin to accrue and be
cumulative on outstanding shares of Eighth Series
from the Quarterly Dividend Payment Date next
preceding the date of issue of such shares of
Eighth Series, unless the date of issue of such
shares of Eighth Series is prior to the record
date for the first Quarterly Dividend Payment
Date, in which case dividends on such shares shall
begin to accrue from the date of issue of such
shares, or unless the date of issue is a Quarterly
Dividend Payment Date or is a date after the
record date for the determination of holders of
shares of Eighth Series entitled to receive a
quarterly dividend and before such Quarterly
Dividend Payment Date, in either of which cases
such dividends shall begin to accrue and be
cumulative from such Quarterly Dividend Payment
Date. Accrued but unpaid dividends shall cumulate
but shall not bear interest. Dividends paid on
the shares of Eighth Series in an amount less than
the total amount of such dividends at the time
accrued and payable on such shares shall be
allocated pro rata on a share-by-share basis among
all such shares at the time outstanding.
(3) Voting Rights. Except as prescribed by law
and in addition to the rights provided for in ARTICLE
SIXTH of the Articles of Incorporation of the
Corporation, as amended, the holders of the shares of
the Eighth Series shall be entitled to vote at any
annual or special meeting of the stockholders of the
Corporation, for each share of Eighth Series, a number
of votes equal to the product of the PCS Group Multiple
then in effect times the highest number of votes that
each share of PCS Group Common Stock entitles its
holder to vote at such meeting of stockholders of the
Corporation. The holders of the shares of the Eighth
Series shall be entitled to exercise such voting rights
with the holders of Series 1 PCS Stock, without
distinction as to class, at any annual or special
meeting of stockholders for the election of directors
and on any other matter submitted to a vote of the
stockholders of the Corporation at such meeting. Except
as otherwise provided herein, in the Articles of
Incorporation of the Corporation, in any other
Certificate of Designation establishing a series of
Preferred Stock or any similar stock or otherwise
required by law, the holders of the shares of the
Eighth Series and the holders of Common Stock shall
vote together as one class on all matters submitted to
a vote of stockholders of the Corporation.
(4) Certain Restrictions.
(A) Whenever quarterly dividends or other
dividends or distributions payable on the shares
of the Eighth Series as provided in Section (2)
are in arrears, thereafter and until all accrued
and unpaid dividends and distributions, whether or
not declared, on shares of the Eighth Series
outstanding shall have been paid in full, the
Corporation shall not:
(i) declare or pay dividends (except a
dividend payable in PCS Group Common Stock
and/or any other Junior Stock) on, make any
other distributions on, or redeem or purchase
or otherwise acquire for consideration any
shares of Junior Stock;
(ii) declare or pay dividends on or
make any other distribution on any shares of
stock ranking on a parity (either as to
dividends or upon liquidation, dissolution or
winding up) with the shares of the Eighth
Series, except dividends paid ratably on the
shares of the Eighth Series and all such
parity stock on which dividends are payable
or in arrears in proportion to the total
amounts to which the holders of all such
shares are then entitled;
(iii) redeem or purchase or otherwise
acquire for consideration any shares of stock
ranking on a parity (either as to dividends
or upon liquidation, dissolution or winding
up) with the shares of the Eighth Series,
provided that the Corporation may at any time
redeem, purchase or otherwise acquire shares
of such parity stock in exchange for shares
of Junior Stock; or
(iv) purchase or otherwise acquire for
consideration any shares of the Eighth
Series, or any shares of stock ranking on a
parity with the shares of the Eighth Series,
except in accordance with a purchase offer
made in writing or by publication (as
determined by the Board of Directors) to all
holders of such shares upon such terms as the
Board of Directors, after consideration of
the respective annual dividend rates and
other relative rights and preferences of the
respective series and classes, shall
determine in good faith will result in fair
and equitable treatment among the respective
series or classes.
(B) The Corporation shall not permit any
subsidiary of the Corporation to purchase or
otherwise acquire for consideration any shares of
stock of the Corporation unless the Corporation
could, under paragraph (A) of this Section (4),
purchase or otherwise acquire such shares at such
time and in such manner.
(5) Reacquired Shares. Any shares of the Eighth
Series purchased or otherwise acquired by the
Corporation in any manner whatsoever shall be retired
and canceled promptly after the acquisition thereof.
All such shares shall upon their cancellation become
authorized but unissued shares of Preferred Stock and
may be reissued as part of a new series of Preferred
Stock to be created by resolution or resolutions of the
Board of Directors, subject to the conditions and
restrictions on issuance set forth herein, in the
Articles of Incorporation, in any other Certificate of
Designation establishing a series of Preferred Stock or
any similar stock or as otherwise required by law.
(6) Liquidation, Dissolution or Winding Up.
(A) In the event of any voluntary or
involuntary liquidation, dissolution or winding up
of the Corporation, the holders of the shares of
the Eighth Series shall be entitled to receive, in
preference to the holders of Junior Stock, the
greater of (a) $1,000.00 per share, plus accrued
dividends to the date of distribution, whether or
not earned or declared, or (b) an amount per share
equal to the product of the PCS Group Multiple
then in effect times the aggregate amount to be
distributed per share to holders of PCS Group
Common Stock.
(B) In the event of any voluntary or
involuntary liquidation, dissolution or winding up
of the Corporation, the holders of stock ranking
on a parity (either as to dividends or upon
liquidation, dissolution or winding up) with the
Eighth Series shall not receive any distributions
except for distributions made ratably on the
Eighth Series and all other such parity stock in
proportion to the total amounts to which the
holders of all such shares are entitled upon such
liquidation, dissolution or winding up.
(7) Consolidation, Merger, etc. In case the
Corporation shall enter into any consolidation, merger,
combination or other transaction in which the shares of
PCS Group Common Stock are exchanged for or changed
into other stock or securities, cash and/or any other
property, then in any such case the shares of the
Eighth Series shall at the same time be similarly
exchanged or changed in an amount per share equal to
the product of the PCS Group Multiple then in effect
times the aggregate amount of stock, securities, cash
and/or any other property (payable in kind), as the
case may be, into which or for which each share of PCS
Group Common Stock is changed or exchanged.
(8) Ranking. The shares of the Eighth Series
shall rank junior to all other series of the
Corporation's Preferred Stock as to the payment of
dividends and the distribution of assets, unless the
terms of any such series shall provide otherwise. The
shares of the Eighth Series shall rank on a parity with
the Corporation's Preferred Stock-Series Sixth, Junior
Participating, as to the payment of dividends and the
distribution of assets. Nothing herein shall preclude
the Board of Directors of the Corporation from creating
any additional series of Preferred Stock or any similar
stock ranking on a parity with or prior to the shares
of the Eighth Series as to the payment of dividends or
distribution of assets.
(9) Fractional Shares. Shares of the Eighth
Series may be issued in fractions of a share which
shall entitle the holder, in proportion to such
holder's fractional shares, to exercise voting rights,
receive dividends, participate in distributions and to
have the benefit of all other rights of holders of
shares of the Eighth Series.
(10) Definitions. For purposes of this
Certificate of Designation, Preferences and Rights of
Eighth Series, unless the context otherwise requires:
(A) "Class A Common Stock-Series DT" (i)
prior to the filing of the Subsequent Charter
Amendment pursuant to K.S.A. Section 17-6003(d),
shall have the meaning set forth in the Initial
Charter Amendment, and (ii) after the filing of the
Subsequent Charter Amendment pursuant to K.S.A.
Section 17-6003(d), shall have the meaning set forth
in the Subsequent Charter Amendment.
(B) "Common Stock" shall mean (A) if prior
to the filing of the Subsequent Charter Amendment
pursuant to K.S.A. Section 17-6003(d): Sprint Common
Stock, and/or Series 2 Common Stock, and/or Old
Class A Common Stock, and/or Class A Common Stock-
Series DT, and/or Series 1 PCS Stock, and/or
Series 2 PCS Stock, and/or Series 3 PCS Stock, in
each case as the context requires, and (B) if
after the filing of the Subsequent Charter
Amendment: Series 1 FON Stock, and/or Series 2 FON
Stock, and/or Series 3 FON Stock, and/or Old
Class A Common Stock, and/or Class A Common Stock-
Series DT, and/or Series 1 PCS Stock, and/or
Series 2 PCS Stock, and/or Series 3 PCS Stock, in
each case as the context requires.
(C) "Initial Charter Amendment" shall have
the meaning set forth in the Restructuring and
Merger Agreement.
(D) "Old Class A Common Stock" (i) prior to
the filing of the Subsequent Charter Amendment
pursuant to K.S.A. Section 17-6003(d), shall have the
meaning set forth in the Initial Charter
Amendment, and (ii) after the filing of the
Subsequent Charter Amendment pursuant to K.S.A. Section
17-6003(d), shall have the meaning set forth in
the Subsequent Charter Amendment.
(E) "PCS Group Common Stock" shall mean
Series 1 PCS Stock, and/or Series 2 PCS Stock,
and/or Series 3 PCS Stock, in each case as the
context requires.
(F) "PCS Group Multiple" shall have the
meaning set forth in Section 2(B).
(G) "Recapitalization" shall mean the
reclassification of each outstanding share of
Sprint Common Stock into one share of Series 1 FON
Stock and one-half of a share of Series 1 PCS
Stock to be effected by filing of the Subsequent
Charter Amendment.
(H) "Restructuring and Merger Agreement"
shall mean that certain agreement, dated as of May
26, 1998, by and among the Corporation, Tele-
Communications, Inc., a Delaware corporation,
Comcast Corporation, a Pennsylvania corporation,
Cox Communications, Inc., a Delaware corporation,
TCI Spectrum Holdings, Inc., a Colorado
corporation, Comcast Telephony Services, a
Delaware general partnership, Cox Telephony
Partnership, a Delaware general partnership,
Sprint Enterprises, L.P., a Delaware limited
partnership, TCI Philadelphia Holdings, Inc., a
Delaware corporation, Com Telephony Services,
Inc., a Delaware corporation, Comcast Telephony
Services, Inc., a Delaware corporation, Cox
Telephony Partners, Inc., a Delaware corporation,
Cox Communications Wireless, Inc., a Delaware
corporation, SWV One, Inc., a Delaware
corporation, SWV Two, Inc., a Delaware
corporation, SWV Three, Inc., a Delaware
corporation, SWV Four, Inc., a Delaware
corporation, SWV Five, Inc., a Delaware
corporation, and SWV Six, Inc., a Colorado
corporation.
(I) "Series 2 Common Stock" shall mean the
Common Stock - Series 2, par value $2.50 per
share, of the Corporation, which will be created
by the filing of the Initial Charter Amendment.
(J) "Series 1 FON Stock" shall mean the FON
Common Stock - Series 1, par value $2.00 per
share, of the Corporation, which will be created
by the filing of the Subsequent Charter Amendment.
(K) "Series 2 FON Stock" shall mean the FON
Common Stock - Series 2, par value $2.00 per
share, of the Corporation, which will be created
by the filing of the Subsequent Charter Amendment.
(L) "Series 3 FON Stock" shall mean the FON
Common Stock - Series 3, par value $2.00 per
share, of the Corporation, which will be created
by the filing of the Subsequent Charter Amendment.
(M) "Series 1 PCS Stock" shall mean the PCS
Common Stock - Series 1, par value $1.00 per
share, of the Corporation, which will be created
by the filing of the Initial Charter Amendment.
(N) "Series 2 PCS Stock" shall mean the PCS
Common Stock - Series 2, par value $1.00 per
share, of the Corporation, which will be created
by the filing of the Initial Charter Amendment.
(O) "Series 3 PCS Stock" shall mean the PCS
Common Stock - Series 3, par value $1.00 per
share, of the Corporation, which will be created
by the filing of the Initial Charter Amendment.
(P) "Sprint Common Stock" shall mean Common
Stock, par value $2.50 per share, of the
Corporation, as provided for in the Initial
Charter Amendment.
(Q) "Subsequent Charter Amendment" shall
have the meaning set forth in the Restructuring
and Merger Agreement.
IN WITNESS WHEREOF, we have hereunto set our hands and
affixed the seal of said Corporation this ___ day of ___________,
1998.
Don A. Jensen, Vice President
(CORPORATE SEAL)
Michael T. Hyde, Assistant
Secretary
STATE OF KANSAS )
) ss.
COUNTY OF JOHNSON )
BE IT REMEMBERED, that before me, a notary public in
and for the aforesaid county and state, personally appeared Don
A. Jensen, Vice President, and Michael T. Hyde, Assistant
Secretary, of Sprint Corporation, a corporation, who are known to
me to be the same persons who executed the foregoing instrument,
and duly acknowledged the execution of the same this ___ day of
__________, 1998.
Notary Public
My commission expires:
<PAGE>
EXHIBIT B-1
[Form of Rights Certificate for FON Group Rights]
Certificate No. FONR- ________ Rights
NOT EXERCISABLE AFTER JUNE 25, 2007 OR EARLIER IF REDEEMED BY THE
COMPANY. THE RIGHTS ARE SUBJECT TO REDEMPTION, AT THE OPTION OF
THE COMPANY, AT $.01 PER RIGHT ON THE TERMS SET FORTH IN THE
RIGHTS AGREEMENT. UNDER CERTAIN CIRCUMSTANCES, RIGHTS
BENEFICIALLY OWNED BY AN ACQUIRING PERSON (AS SUCH TERM IS
DEFINED IN THE RIGHTS AGREEMENT) AND ANY SUBSEQUENT HOLDER OF
SUCH RIGHTS MAY BECOME NULL AND VOID. [THE RIGHTS REPRESENTED BY
THIS RIGHTS CERTIFICATE ARE OR WERE BENEFICIALLY OWNED BY A
PERSON WHO WAS OR BECAME AN ACQUIRING PERSON OR AN AFFILIATE OR
ASSOCIATE OF AN ACQUIRING PERSON (AS SUCH TERMS ARE DEFINED IN
THE RIGHTS AGREEMENT). ACCORDINGLY, THIS RIGHTS CERTIFICATE AND
THE RIGHTS REPRESENTED HEREBY MAY BECOME, OR MAY ALREADY HAVE
BECOME, NULL AND VOID IN THE CIRCUMSTANCES SPECIFIED IN SECTION
7(e) OF SUCH AGREEMENT.]<FN1>
[FN]
<F1> The portion of the legend in brackets shall be inserted
only if applicable and shall replace the preceding sentence.
</FN>
FON Group Rights Certificate
SPRINT CORPORATION
This certifies that
, or registered assigns, is the registered owner of the number of
FON Group Rights set forth above, each of which entitles the
owner thereof, subject to the terms, provisions and conditions of
the Amended and Restated Rights Agreement, dated as of
___________, 1998 (the "Rights Agreement"), between Sprint
Corporation, a Kansas corporation (the "Company"), and UMB Bank,
n.a., a banking corporation (the "Rights Agent"), to purchase
from the Company at any time prior to 5:00 P.M. (New York City
time) on June 25, 2007 (the "Final Expiration Date") at the
office or offices of the Rights Agent designated for such
purpose, or its successors as Rights Agent, one one-thousandth of
a fully paid, non-assessable share of Preferred Stock - Sixth
Series, Junior Participating, without par value (the "Preferred
Stock") of the Company, at a purchase price of $______ per one
one-thousandth of a share (the "Purchase Price"), upon
presentation and surrender of this Rights Certificate with the
Form of Election to Purchase and related Certificate duly
executed. The Purchase Price may be paid in cash or by certified
bank check or bank draft payable to the order of the Company.
The number of Rights evidenced by this Rights Certificate (and
the number of shares which may be purchased upon exercise
thereof) set forth above, and the Purchase Price per share set
forth above, are the number and Purchase Price as of
_____________, based on the Preferred Stock as constituted at
such date. The Company reserves the right to require prior to
the occurrence of a Triggering Event (as such term is defined in
the Rights Agreement) that a number of Rights be exercised so
that only whole shares of Preferred Stock will be issued.
Upon the occurrence of a Section 11(a)(ii) Event (as
such term is defined in the Rights Agreement), if the Rights
evidenced by this Rights Certificate are beneficially owned by
(i) an Acquiring Person or an Affiliate or Associate of an
Acquiring Person (as such terms are defined in the Rights
Agreement), (ii) a transferee of an Acquiring Person or of any
such Associate or Affiliate, or (iii) under certain circumstances
specified in the Rights Agreement, a transferee of a person who,
after such transfer, became an Acquiring Person or an Affiliate
or Associate of an Acquiring Person, such Rights shall become
null and void and no holder hereof shall have any right with
respect to such Rights from and after the occurrence of such
Section 11(a)(ii) Event.
As provided in the Rights Agreement, the Purchase Price
and the number and kind of shares of Preferred Stock or other
securities which may be purchased upon the exercise of the Rights
evidenced by this Rights Certificate are subject to modification
and adjustment upon the happening of certain events, including
Triggering Events (as such term is defined in the Rights Agree
ment).
This Rights Certificate is subject to all of the terms,
provisions and conditions of the Rights Agreement, which terms,
provisions and conditions are hereby incorporated herein by
reference and made a part hereof and to which Rights Agreement
reference is hereby made for a full description of the rights,
limitations of rights, obligations, duties and immunities
hereunder of the Rights Agent, the Company and the holders of the
Rights Certificates, which limitations of rights include the
temporary suspension of the exercisability of such Rights under
the specific circumstances set forth in the Rights Agreement.
Copies of the Rights Agreement are on file at the above-mentioned
office of the Rights Agent and are also available upon written
request to the Rights Agent.
This Rights Certificate, with or without other Rights
Certificates, upon presentation and surrender at the principal
office or offices of the Rights Agent designated for such
purpose, may be exchanged for another Rights Certificate or
Rights Certificates of like tenor and date evidencing Rights
entitling the holder to purchase a like aggregate number of one
one-thousandths of a share of Preferred Stock as the Rights
evidenced by the Rights Certificate or Rights Certificates
surrendered shall have entitled such holder to purchase. If this
Rights Certificate shall be exercised in part, the holder shall
be entitled to receive upon presentation and surrender hereof
another Rights Certificate or Rights Certificates for the number
of whole Rights not exercised.
Subject to the provisions of the Rights Agreement, the
Rights evidenced by this Certificate may be redeemed by the
Company at its option at a redemption price of $.01 per Right at
any time prior to the earlier of the close of business on (i) the
tenth business day following the Stock Acquisition Date, and (ii)
the Final Expiration Date. In addition, subject to the
provisions of the Rights Agreement, each Right evidenced by this
Certificate may be exchanged by the Company at its option for one
share of the applicable class or series (which the holder would
have been entitled to receive upon the exercise thereof) of
Common Stock (as such term is defined in the Rights Agreement) of
the Company (subject to adjustment for any stock split, stock
dividend or similar transaction) following the Stock Acquisition
Date and prior to the time an Acquiring Person owns 50% or more
of the Voting Power (as such term is defined in the Rights
Agreement) of the Company.
No fractional shares of Preferred Stock will be issued
upon the exercise of any Right or Rights evidenced hereby (other
than fractions which are integral multiples of one one-thousandth
of a share of Preferred Stock, which may, at the election of the
Company, be evidenced by depositary receipts), but in lieu
thereof a cash payment will be made, as provided in the Rights
Agreement.
No holder of this Rights Certificate, as such, shall be
entitled to vote or receive dividends or be deemed for any
purpose the holder of shares of Preferred Stock or of any other
securities of the Company which may at any time be issuable on
the exercise hereof, nor shall anything contained in the Rights
Agreement or herein be construed to confer upon the holder
hereof, as such, any of the rights of a stockholder of the
Company or any right to vote for the election of directors or
upon any matter submitted to stockholders at any meeting thereof,
or to give or withhold consent to any corporate action, or to
receive notice of meetings or other actions affecting
stockholders (except as provided in the Rights Agreement), or to
receive dividends or subscription rights, or otherwise, until the
Right or Rights evidenced by this Rights Certificate shall have
been exercised as provided in the Rights Agreement.
This Rights Certificate shall not be valid or
obligatory for any purpose until it shall have been countersigned
by the Rights Agent.
WITNESS the facsimile signature of the proper officers
of the Company and its corporate seal.
Dated as of ______________, ____
ATTEST: SPRINT CORPORATION
By:
Secretary Name:
Title:
Countersigned:
UMB BANK, N.A.
By:
Authorized Signature
[Form of Reverse Side of Rights Certificate]
FORM OF ASSIGNMENT
(To be executed by the registered holder if such
holder desires to transfer any or all of the
Rights represented by this Rights Certificate.)
FOR VALUE RECEIVED, the undersigned hereby sells, assigns
and transfers unto
(Please print name, address and social security or other identif
ying number of transferee)
( ) of the Rights represented by this Rights
Certificate, together with all right, title and interest in and
to said Rights, and does hereby irrevocably constitute and
appoint _____________________________ Attorney, to transfer the
Rights on the books of Sprint Corporation, with full power of
substitution.
Dated: _____________, ____
Signature
Signature Guaranteed:
Certificate
The undersigned hereby certifies by checking the
appropriate boxes that:
(1) this Rights Certificate [ ] is [ ] is not
being sold, assigned and transferred by or on behalf of a Person
who is or was an Acquiring Person or an Affiliate or Associate of
an Acquiring Person (as such terms are defined pursuant to the
Rights Agreement);
(2) after due inquiry and to the best knowledge of the
undersigned, it [ ] did [ ] did not acquire the Rights
evidenced by this Rights Certificate from any Person who is, was
or subsequently became an Acquiring Person or an Affiliate or
Associate of an Acquiring Person.
Dated: ____________, ____
Signature
Signature Guaranteed:
NOTICE
The signature to the foregoing Assignment and
Certificate must correspond to the name as written upon the face
of this Rights Certificate in every particular, without
alteration or enlargement or any change whatsoever, and must be
guaranteed by a member firm of a registered securities exchange,
a member of the National Association of Securities Dealers, Inc.,
or a commercial bank or trust company having an officer or
correspondent in the United States.
FORM OF ELECTION TO PURCHASE
(To be executed by the registered holder if such holder desires
to
exercise any or all of the Rights represented by this Rights Cer
tificate.)
To: SPRINT CORPORATION:
The undersigned hereby irrevocably elects to exercise
( )Rights represented by this Rights Certificate to purchase
the shares of Preferred Stock issuable upon the exercise of the
Rights (or such other securities of the Company or of any other
person which may be issuable upon the exercise of the Rights) and
requests that certificates for such shares be issued in the name
of and delivered to:
Please insert social security
or taxpayer identification number
(Please print name and address)
If such number of Rights shall not be all the Rights
evidenced by this Rights Certificate, a new Rights Certificate
for the balance of such Rights shall be registered in the name of
and delivered to:
Please insert social security
or taxpayer identification number
(Please print name and address)
Dated: __________, ____
Signature
Signature Guaranteed:
Certificate
The undersigned hereby certifies by checking the
appropriate boxes that:
(1) the Rights evidenced by this Rights Certificate
[ ] are [ ] are not being exercised by or on behalf of a
Person who is or was an Acquiring Person or an Affiliate or
Associate of an Acquiring Person (as such terms are defined
pursuant to the Rights Agreement);
(2) after due inquiry and to the best knowledge of the
undersigned, it [ ] did [ ] did not acquire the Rights
evidenced by this Rights Certificate from any Person who is, was
or became an Acquiring Person or an Affiliate or Associate of an
Acquiring Person.
Dated: _____________, ____
Signature
Signature Guaranteed:
NOTICE
The signature to the foregoing Election to Purchase and
Certificate must correspond to the name as written upon the face
of this Rights Certificate in every particular, without
alteration or enlargement or any change whatsoever, and must be
guaranteed by a member firm of a registered securities exchange,
a member of the National Association of Securities Dealers, Inc.,
or a commercial bank or trust company having an officer or
correspondent in the United States.
<PAGE>
EXHIBIT B-2
[Form of Rights Certificate for PCS Group Rights]
Certificate No. PCSR- ________ Rights
NOT EXERCISABLE AFTER JUNE 25, 2007 OR EARLIER IF REDEEMED BY THE
COMPANY. THE RIGHTS ARE SUBJECT TO REDEMPTION, AT THE OPTION OF
THE COMPANY, AT $.01 PER RIGHT ON THE TERMS SET FORTH IN THE
RIGHTS AGREEMENT. UNDER CERTAIN CIRCUMSTANCES, RIGHTS
BENEFICIALLY OWNED BY AN ACQUIRING PERSON (AS SUCH TERM IS
DEFINED IN THE RIGHTS AGREEMENT) AND ANY SUBSEQUENT HOLDER OF
SUCH RIGHTS MAY BECOME NULL AND VOID. [THE RIGHTS REPRESENTED BY
THIS RIGHTS CERTIFICATE ARE OR WERE BENEFICIALLY OWNED BY A
PERSON WHO WAS OR BECAME AN ACQUIRING PERSON OR AN AFFILIATE OR
ASSOCIATE OF AN ACQUIRING PERSON (AS SUCH TERMS ARE DEFINED IN
THE RIGHTS AGREEMENT). ACCORDINGLY, THIS RIGHTS CERTIFICATE AND
THE RIGHTS REPRESENTED HEREBY MAY BECOME, OR MAY ALREADY HAVE
BECOME, NULL AND VOID IN THE CIRCUMSTANCES SPECIFIED IN SECTION
7(e) OF SUCH AGREEMENT.]<FN1>
[FN]
<F1> The portion of the legend in brackets shall be inserted
only if applicable and shall replace the preceding sentence.
</FN>
PCS Group Rights Certificate
SPRINT CORPORATION
This certifies that
, or registered assigns, is the registered owner of the number of
PCS Group Rights set forth above, each of which entitles the
owner thereof, subject to the terms, provisions and conditions of
the Amended and Restated Rights Agreement, dated as of _______,
1998 (the "Rights Agreement"), between Sprint Corporation, a
Kansas corporation (the "Company"), and UMB Bank, n.a., a banking
corporation (the "Rights Agent"), to purchase from the Company at
any time prior to 5:00 P.M. (New York City time) on June 25, 2007
(the "Final Expiration Date") at the office or offices of the
Rights Agent designated for such purpose, or its successors as
Rights Agent, one one-thousandth of a fully paid, non-assessable
share of Preferred Stock - Eighth Series, Junior Participating,
without par value (the "Preferred Stock") of the Company, at a
purchase price of $______ per one one-thousandth of a share (the
"Purchase Price"), upon presentation and surrender of this Rights
Certificate with the Form of Election to Purchase and related
Certificate duly executed. The Purchase Price may be paid in
cash or by certified bank check or bank draft payable to the
order of the Company. The number of Rights evidenced by this
Rights Certificate (and the number of shares which may be pur
chased upon exercise thereof) set forth above, and the Purchase
Price per share set forth above, are the number and Purchase
Price as of ______________, based on the Preferred Stock as
constituted at such date. The Company reserves the right to
require prior to the occurrence of a Triggering Event (as such
term is defined in the Rights Agreement) that a number of Rights
be exercised so that only whole shares of Preferred
Stock will be issued.
Upon the occurrence of a Section 11(a)(ii) Event (as
such term is defined in the Rights Agreement), if the Rights
evidenced by this Rights Certificate are beneficially owned by
(i) an Acquiring Person or an Affiliate or Associate of an
Acquiring Person (as such terms are defined in the Rights
Agreement), (ii) a transferee of an Acquiring Person or of any
such Associate or Affiliate, or (iii) under certain circumstances
specified in the Rights Agreement, a transferee of a person who,
after such transfer, became an Acquiring Person or an Affiliate
or Associate of an Acquiring Person, such Rights shall become
null and void and no holder hereof shall have any right with
respect to such Rights from and after the occurrence of such
Section 11(a)(ii) Event.
As provided in the Rights Agreement, the Purchase Price
and the number and kind of shares of Preferred Stock or other
securities which may be purchased upon the exercise of the Rights
evidenced by this Rights Certificate are subject to modification
and adjustment upon the happening of certain events, including
Triggering Events (as such term is defined in the Rights Agree
ment).
This Rights Certificate is subject to all of the terms,
provisions and conditions of the Rights Agreement, which terms,
provisions and conditions are hereby incorporated herein by
reference and made a part hereof and to which Rights Agreement
reference is hereby made for a full description of the rights,
limitations of rights, obligations, duties and immunities
hereunder of the Rights Agent, the Company and the holders of the
Rights Certificates, which limitations of rights include the
temporary suspension of the exercisability of such Rights under
the specific circumstances set forth in the Rights Agreement.
Copies of the Rights Agreement are on file at the above-mentioned
office of the Rights Agent and are also available upon written
request to the Rights Agent.
This Rights Certificate, with or without other Rights
Certificates, upon presentation and surrender at the principal
office or offices of the Rights Agent designated for such
purpose, may be exchanged for another Rights Certificate or
Rights Certificates of like tenor and date evidencing Rights
entitling the holder to purchase a like aggregate number of one
one-thousandths of a share of Preferred Stock as the Rights
evidenced by the Rights Certificate or Rights Certificates
surrendered shall have entitled such holder to purchase. If this
Rights Certificate shall be exercised in part, the holder shall
be entitled to receive upon presentation and surrender hereof
another Rights Certificate or Rights Certificates for the number
of whole Rights not exercised.
Subject to the provisions of the Rights Agreement, the
Rights evidenced by this Certificate may be redeemed by the
Company at its option at a redemption price of $.01 per Right at
any time prior to the earlier of the close of business on (i) the
tenth business day following the Stock Acquisition Date, and (ii)
the Final Expiration Date. In addition, subject to the
provisions of the Rights Agreement, each Right evidenced by this
Certificate may be exchanged by the Company at its option for one
share of the applicable class or series (which the holder would
have been entitled to receive upon the exercise thereof) of
Common Stock (as such term is defined in the Rights Agreement) of
the Company (subject to adjustment for any stock split, stock
dividend or similar transaction) following the Stock Acquisition
Date and prior to the time an Acquiring Person owns 50% or more
of the Voting Power (as such term is defined in the Rights
Agreement) of the Company.
No fractional shares of Preferred Stock will be issued
upon the exercise of any Right or Rights evidenced hereby (other
than fractions which are integral multiples of one one-thousandth
of a share of Preferred Stock, which may, at the election of the
Company, be evidenced by depositary receipts), but in lieu
thereof a cash payment will be made, as provided in the Rights
Agreement.
No holder of this Rights Certificate, as such, shall be
entitled to vote or receive dividends or be deemed for any
purpose the holder of shares of Preferred Stock or of any other
securities of the Company which may at any time be issuable on
the exercise hereof, nor shall anything contained in the Rights
Agreement or herein be construed to confer upon the holder
hereof, as such, any of the rights of a stockholder of the
Company or any right to vote for the election of directors or
upon any matter submitted to stockholders at any meeting thereof,
or to give or withhold consent to any corporate action, or to
receive notice of meetings or other actions affecting
stockholders (except as provided in the Rights Agreement), or to
receive dividends or subscription rights, or otherwise, until the
Right or Rights evidenced by this Rights Certificate shall have
been exercised as provided in the Rights Agreement.
This Rights Certificate shall not be valid or
obligatory for any purpose until it shall have been countersigned
by the Rights Agent.
WITNESS the facsimile signature of the proper officers
of the Company and its corporate seal.
Dated as of ______________, ____
ATTEST: SPRINT CORPORATION
By:
Secretary Name:
Title:
Countersigned:
UMB BANK, N.A.
By:
Authorized Signature
[Form of Reverse Side of Rights Certificate]
FORM OF ASSIGNMENT
(To be executed by the registered holder if such
holder desires to transfer any or all of the
Rights represented by this Rights Certificate.)
FOR VALUE RECEIVED, the undersigned hereby sells, assigns
and transfers unto
(Please print name, address and social security or other identif
ying number of transferee)
( ) of the Rights represented by this Rights
Certificate, together with all right, title and interest in and
to said Rights, and does hereby irrevocably constitute and
appoint _____________________________ Attorney, to transfer the
Rights on the books of Sprint Corporation, with full power of
substitution.
Dated: _____________, ____
Signature
Signature Guaranteed:
Certificate
The undersigned hereby certifies by checking the
appropriate boxes that:
(1) this Rights Certificate [ ] is [ ] is not
being sold, assigned and transferred by or on behalf of a Person
who is or was an Acquiring Person or an Affiliate or Associate of
an Acquiring Person (as such terms are defined pursuant to the
Rights Agreement);
(2) after due inquiry and to the best knowledge of the
undersigned, it [ ] did [ ] did not acquire the Rights
evidenced by this Rights Certificate from any Person who is, was
or subsequently became an Acquiring Person or an Affiliate or
Associate of an Acquiring Person.
Dated: ____________, ____
Signature
Signature Guaranteed:
NOTICE
The signature to the foregoing Assignment and
Certificate must correspond to the name as written upon the face
of this Rights Certificate in every particular, without
alteration or enlargement or any change whatsoever, and must be
guaranteed by a member firm of a registered securities exchange,
a member of the National Association of Securities Dealers, Inc.,
or a commercial bank or trust company having an officer or
correspondent in the United States.
FORM OF ELECTION TO PURCHASE
(To be executed by the registered holder if such holder desires
to
exercise any or all of the Rights represented by this Rights Cer
tificate.)
To: SPRINT CORPORATION:
The undersigned hereby irrevocably elects to exercise
( )Rights represented by this Rights Certificate to purchase
the shares of Preferred Stock issuable upon the exercise of the
Rights (or such other securities of the Company or of any other
person which may be issuable upon the exercise of the Rights) and
requests that certificates for such shares be issued in the name
of and delivered to:
Please insert social security
or taxpayer identification number
(Please print name and address)
If such number of Rights shall not be all the Rights
evidenced by this Rights Certificate, a new Rights Certificate
for the balance of such Rights shall be registered in the name of
and delivered to:
Please insert social security
or taxpayer identification number
(Please print name and address)
Dated: __________, ____
Signature
Signature Guaranteed:
Certificate
The undersigned hereby certifies by checking the
appropriate boxes that:
(1) the Rights evidenced by this Rights Certificate
[ ] are [ ] are not being exercised by or on behalf of a
Person who is or was an Acquiring Person or an Affiliate or
Associate of an Acquiring Person (as such terms are defined
pursuant to the Rights Agreement);
(2) after due inquiry and to the best knowledge of the
undersigned, it [ ] did [ ] did not acquire the Rights
evidenced by this Rights Certificate from any Person who is, was
or became an Acquiring Person or an Affiliate or Associate of an
Acquiring Person.
Dated: _____________, ____
Signature
Signature Guaranteed:
NOTICE
The signature to the foregoing Election to Purchase and
Certificate must correspond to the name as written upon the face
of this Rights Certificate in every particular, without
alteration or enlargement or any change whatsoever, and must be
guaranteed by a member firm of a registered securities exchange,
a member of the National Association of Securities Dealers, Inc.,
or a commercial bank or trust company having an officer or
correspondent in the United States.
<PAGE>
EXHIBIT B-3
[Form of Rights Certificate for Old Class A Rights]
Certificate No. AR- ________ Rights
NOT EXERCISABLE AFTER JUNE 25, 2007 OR EARLIER IF REDEEMED BY THE
COMPANY. THE RIGHTS ARE SUBJECT TO REDEMPTION, AT THE OPTION OF
THE COMPANY, AT $.01 PER RIGHT ON THE TERMS SET FORTH IN THE
RIGHTS AGREEMENT. UNDER CERTAIN CIRCUMSTANCES, RIGHTS
BENEFICIALLY OWNED BY AN ACQUIRING PERSON (AS SUCH TERM IS
DEFINED IN THE RIGHTS AGREEMENT) AND ANY SUBSEQUENT HOLDER OF
SUCH RIGHTS MAY BECOME NULL AND VOID. [THE RIGHTS REPRESENTED BY
THIS RIGHTS CERTIFICATE ARE OR WERE BENEFICIALLY OWNED BY A
PERSON WHO WAS OR BECAME AN ACQUIRING PERSON OR AN AFFILIATE OR
ASSOCIATE OF AN ACQUIRING PERSON (AS SUCH TERMS ARE DEFINED IN
THE RIGHTS AGREEMENT). ACCORDINGLY, THIS RIGHTS CERTIFICATE AND
THE RIGHTS REPRESENTED HEREBY MAY BECOME, OR MAY ALREADY HAVE
BECOME, NULL AND VOID IN THE CIRCUMSTANCES SPECIFIED IN SECTION
7(e) OF SUCH AGREEMENT.]<FN1>
[FN]
<F1> The portion of the legend in brackets shall be inserted
only if applicable and shall replace the preceding sentence.
</FN>
Old Class A Rights Certificate
SPRINT CORPORATION
This certifies that
, or registered assigns, is the registered owner of the number of
Old Class A Rights set forth above, each of which entitles the
owner thereof, subject to the terms, provisions and conditions of
the Amended and Restated Rights Agreement, dated as of
__________, 1998 (the "Rights Agreement"), between Sprint
Corporation, a Kansas corporation (the "Company"), and UMB Bank,
n.a., a banking corporation (the "Rights Agent"), to purchase
from the Company at any time prior to 5:00 P.M. (New York City
time) on June 25, 2007 (the "Final Expiration Date") at the
office or offices of the Rights Agent designated for such
purpose, or its successors as Rights Agent, (A) if exercised
prior to the filing of the Subsequent Charter Amendment (as such
term is defined in the Rights Agreement) pursuant to K.S.A. Section
17-6003(d), one one-thousandth of a fully paid, non-assessable share
of Preferred Stock - Sixth Series, Junior Participating, without
par value (the "Preferred Stock -- Sixth Series") of the Company,
at a purchase price of $______ per one one-thousandth of a share
of Preferred Stock -- Sixth Series (during this time period, the
"Purchase Price"), and (B) if exercised after the filing of the
Subsequent Charter Amendment pursuant to K.S.A. Section 17-6003(d),
(i) one one-thousandth of a fully paid, non-assessable share of
Preferred Stock -- Series Sixth for each share represented by the
quotient of the Number of Shares Issuable With Respect To The Old
Class A Equity Interest In The FON Group (as such term is defined
in the Rights Agreement) divided by the aggregate number of
shares of Old Class A Common Stock (as such term is defined in
the Rights Agreement) issued and outstanding at such
time, at a purchase price equal to $__________ per one
one-thousandth of a share of Preferred Stock -- Sixth Series (such
Purchase Price per one one-thousandth of a share of Preferred Stock
- -- Sixth Series is referred to as the "Old Class A Sixth Series
Purchase Price"), and (ii) one one-thousandth of a fully paid,
non-assessable share of Preferred Stock - Eighth Series, Junior
Participating, without par value (the "Preferred Stock -- Eighth
Series") of the Company for each share represented by the quotient
of the Number Of Shares Issuable With Respect To The Old Class
Equity Interest In The PCS Group (as such term is defined in the
Rights Agreement) divided by the aggregate number of shares of Old
Class A Common Stock issued and outstanding at such time, at a
purchase price equal $_______ per one one-thousandth of a share of
Preferred Stock -- Eighth Series (such purchase per one
one-thousandth of a share of Preferred Stock -- Eighth Series is
referred to as the "Old Class A Eighth Series Purchase Price"; the
Old Class A Sixth Series Purchase Price and the Old Class A Eighth
Series Purchase Price are referred to collectively, during this time
period, as the "Purchase Price"), upon presentation and surrender of
this Rights Certificate with the Form of Election to Purchase and
related Certificate duly executed. The Purchase Price may be
paid in cash or by certified bank check or bank draft payable to
the order of the Company. The number of Rights evidenced by this
Rights Certificate (and the number of shares which may be pur
chased upon exercise thereof) set forth above, and the Purchase
Price per share set forth above, are the number and Purchase
Price as of _______________, based on the Preferred Stock as
constituted at such date. The Company reserves the right to
require prior to the occurrence of a Triggering Event (as such
term is defined in the Rights Agreement) that a number of Rights
be exercised so that only whole shares of Preferred Stock will be
issued.
Upon the occurrence of a Section 11(a)(ii) Event (as
such term is defined in the Rights Agreement), if the Rights
evidenced by this Rights Certificate are beneficially owned by
(i) an Acquiring Person or an Affiliate or Associate of an
Acquiring Person (as such terms are defined in the Rights
Agreement), (ii) a transferee of an Acquiring Person or of any
such Associate or Affiliate, or (iii) under certain circumstances
specified in the Rights Agreement, a transferee of a person who,
after such transfer, became an Acquiring Person or an Affiliate
or Associate of an Acquiring Person, such Rights shall become
null and void and no holder hereof shall have any right with
respect to such Rights from and after the occurrence of such
Section 11(a)(ii) Event.
As provided in the Rights Agreement, the Purchase Price
and the number and kind of shares of Preferred Stock or other
securities which may be purchased upon the exercise of the Rights
evidenced by this Rights Certificate are subject to modification
and adjustment upon the happening of certain events, including
Triggering Events (as such term is defined in the Rights Agree
ment).
This Rights Certificate is subject to all of the terms,
provisions and conditions of the Rights Agreement, which terms,
provisions and conditions are hereby incorporated herein by
reference and made a part hereof and to which Rights Agreement
reference is hereby made for a full description of the rights,
limitations of rights, obligations, duties and immunities
hereunder of the Rights Agent, the Company and the holders of the
Rights Certificates, which limitations of rights include the
temporary suspension of the exercisability of such Rights under
the specific circumstances set forth in the Rights Agreement.
Copies of the Rights Agreement are on file at the above-mentioned
office of the Rights Agent and are also available upon written
request to the Rights Agent.
This Rights Certificate, with or without other Rights
Certificates, upon presentation and surrender at the principal
office or offices of the Rights Agent designated for such
purpose, may be exchanged for another Rights Certificate or
Rights Certificates of like tenor and date evidencing Rights
entitling the holder to purchase a like aggregate number of one
one-thousandth of a share of each of the Preferred Stock--Series
Sixth and Preferred Stock--Series Eighth as the Rights evidenced
by the Rights Certificate or Rights Certificates surrendered
shall have entitled such holder to purchase. If this Rights
Certificate shall be exercised in part, the holder shall be
entitled to receive upon presentation and surrender hereof
another Rights Certificate or Rights Certificates for the number
of whole Rights not exercised.
Subject to the provisions of the Rights Agreement, the
Rights evidenced by this Certificate may be redeemed by the
Company at its option at a redemption price of $.01 per Right at
any time prior to the earlier of the close of business on (i) the
tenth business day following the Stock Acquisition Date, and (ii)
the Final Expiration Date. In addition, subject to the
provisions of the Rights Agreement, each Right evidenced by this
Certificate may be exchanged by the Company at its option for one
share of the applicable class or series (which the holder would
have been entitled to receive upon the exercise thereof) of
Common Stock (as such term is defined in the Rights Agreement) of
the Company (subject to adjustment for any stock split, stock
dividend or similar transaction) following the Stock Acquisition
Date and prior to the time an Acquiring Person owns 50% or more
of the Voting Power (as such term is defined in the Rights
Agreement) of the Company.
No fractional shares of Preferred Stock--Series Sixth
and Preferred Stock--Series Eighth will be issued upon the
exercise of any Right or Rights evidenced hereby (other than
fractions which are integral multiples of one one-thousandth of a
share of Preferred Stock, which may, at the election of the
Company, be evidenced by depositary receipts), but in lieu
thereof a cash payment will be made, as provided in the Rights
Agreement.
No holder of this Rights Certificate, as such, shall be
entitled to vote or receive dividends or be deemed for any
purpose the holder of shares of Preferred Stock--Series Sixth and
Preferred Stock--Series Eighth or of any other securities of the
Company which may at any time be issuable on the exercise hereof,
nor shall anything contained in the Rights Agreement or herein be
construed to confer upon the holder hereof, as such, any of the
rights of a stockholder of the Company or any right to vote for
the election of directors or upon any matter submitted to
stockholders at any meeting thereof, or to give or withhold
consent to any corporate action, or to receive notice of meetings
or other actions affecting stockholders (except as provided in
the Rights Agreement), or to receive dividends or subscription
rights, or otherwise, until the Right or Rights evidenced by this
Rights Certificate shall have been exercised as provided in the
Rights Agreement.
This Rights Certificate shall not be valid or
obligatory for any purpose until it shall have been countersigned
by the Rights Agent.
WITNESS the facsimile signature of the proper officers
of the Company and its corporate seal.
Dated as of ______________, ____
ATTEST: SPRINT CORPORATION
By:
Secretary Name:
Title:
Countersigned:
UMB BANK, N.A.
By:
Authorized Signature
[Form of Reverse Side of Rights Certificate]
FORM OF ASSIGNMENT
(To be executed by the registered holder if such
holder desires to transfer any or all of the
Rights represented by this Rights Certificate.)
FOR VALUE RECEIVED, the undersigned hereby sells, assigns
and transfers unto
(Please print name, address and social security or other identif
ying number of transferee)
( ) of the Rights represented by this Rights
Certificate, together with all right, title and interest in and
to said Rights, and does hereby irrevocably constitute and
appoint _____________________________ Attorney, to transfer the
Rights on the books of Sprint Corporation, with full power of
substitution.
Dated: _____________, ____
Signature
Signature Guaranteed:
Certificate
The undersigned hereby certifies by checking the
appropriate boxes that:
(1) this Rights Certificate [ ] is [ ] is not
being sold, assigned and transferred by or on behalf of a Person
who is or was an Acquiring Person or an Affiliate or Associate of
an Acquiring Person (as such terms are defined pursuant to the
Rights Agreement);
(2) after due inquiry and to the best knowledge of the
undersigned, it [ ] did [ ] did not acquire the Rights
evidenced by this Rights Certificate from any Person who is, was
or subsequently became an Acquiring Person or an Affiliate or
Associate of an Acquiring Person.
Dated: ____________, ____
Signature
Signature Guaranteed:
NOTICE
The signature to the foregoing Assignment and
Certificate must correspond to the name as written upon the face
of this Rights Certificate in every particular, without
alteration or enlargement or any change whatsoever, and must be
guaranteed by a member firm of a registered securities exchange,
a member of the National Association of Securities Dealers, Inc.,
or a commercial bank or trust company having an officer or
correspondent in the United States.
FORM OF ELECTION TO PURCHASE
(To be executed by the registered holder if such holder desires
to exercise any or all of the Rights represented by this Rights Cer
tificate.)
To: SPRINT CORPORATION:
The undersigned hereby irrevocably elects to exercise
( )Rights represented by this Rights Certificate to purchase
the shares of Preferred Stock issuable upon the exercise of the
Rights (or such other securities of the Company or of any other
person which may be issuable upon the exercise of the Rights) and
requests that certificates for such shares be issued in the name
of and delivered to:
Please insert social security
or taxpayer identification number
(Please print name and address)
If such number of Rights shall not be all the Rights
evidenced by this Rights Certificate, a new Rights Certificate
for the balance of such Rights shall be registered in the name of
and delivered to:
Please insert social security
or taxpayer identification number
(Please print name and address)
Dated: __________, ____
Signature
Signature Guaranteed:
Certificate
The undersigned hereby certifies by checking the
appropriate boxes that:
(1) the Rights evidenced by this Rights Certificate
[ ] are [ ] are not being exercised by or on behalf of a
Person who is or was an Acquiring Person or an Affiliate or
Associate of an Acquiring Person (as such terms are defined
pursuant to the Rights Agreement);
(2) after due inquiry and to the best knowledge of the
undersigned, it [ ] did [ ] did not acquire the Rights
evidenced by this Rights Certificate from any Person who is, was
or became an Acquiring Person or an Affiliate or Associate of an
Acquiring Person.
Dated: _____________, ____
Signature
Signature Guaranteed:
NOTICE
The signature to the foregoing Election to Purchase and
Certificate must correspond to the name as written upon the face
of this Rights Certificate in every particular, without
alteration or enlargement or any change whatsoever, and must be
guaranteed by a member firm of a registered securities exchange,
a member of the National Association of Securities Dealers, Inc.,
or a commercial bank or trust company having an officer or
correspondent in the United States.
<PAGE>
EXHIBIT B-4
[Form of Rights Certificate for Series DT Rights]
Certificate No. DTR- ________ Rights
NOT EXERCISABLE AFTER JUNE 25, 2007 OR EARLIER IF REDEEMED BY THE
COMPANY. THE RIGHTS ARE SUBJECT TO REDEMPTION, AT THE OPTION OF
THE COMPANY, AT $.01 PER RIGHT ON THE TERMS SET FORTH IN THE
RIGHTS AGREEMENT. UNDER CERTAIN CIRCUMSTANCES, RIGHTS
BENEFICIALLY OWNED BY AN ACQUIRING PERSON (AS SUCH TERM IS
DEFINED IN THE RIGHTS AGREEMENT) AND ANY SUBSEQUENT HOLDER OF
SUCH RIGHTS MAY BECOME NULL AND VOID. [THE RIGHTS REPRESENTED BY
THIS RIGHTS CERTIFICATE ARE OR WERE BENEFICIALLY OWNED BY A
PERSON WHO WAS OR BECAME AN ACQUIRING PERSON OR AN AFFILIATE OR
ASSOCIATE OF AN ACQUIRING PERSON (AS SUCH TERMS ARE DEFINED IN
THE RIGHTS AGREEMENT). ACCORDINGLY, THIS RIGHTS CERTIFICATE AND
THE RIGHTS REPRESENTED HEREBY MAY BECOME, OR MAY ALREADY HAVE
BECOME, NULL AND VOID IN THE CIRCUMSTANCES SPECIFIED IN SECTION
7(e) OF SUCH AGREEMENT.]<FN1>
[FN]
<F1> The portion of the legend in brackets shall be inserted
only if applicable and shall replace the preceding sentence.
</FN>
Series DT Rights Certificate
SPRINT CORPORATION
This certifies that
, or registered assigns, is the registered owner of the number of
Series DT Rights set forth above, each of which entitles the
owner thereof, subject to the terms, provisions and conditions of
the Amended and Restated Rights Agreement, dated as of
__________, 1998 (the "Rights Agreement"), between Sprint
Corporation, a Kansas corporation (the "Company"), and UMB Bank,
n.a., a banking corporation (the "Rights Agent"), to purchase
from the Company at any time prior to 5:00 P.M. (New York City
time) on June 25, 2007 (the "Final Expiration Date") at the
office or offices of the Rights Agent designated for such
purpose, or its successors as Rights Agent, (A) if exercised
prior to the filing of the Subsequent Charter Amendment (as such
term is defined in the Rights Agreement) pursuant to K.S.A. Section
17-6003(d), one one-thousandth of a fully paid, non-assessable share
of Preferred Stock - Sixth Series, Junior Participating, without
par value (the "Preferred Stock -- Sixth Series") of the Company,
at a purchase price of $______ per one one-thousandth of a share
of Preferred Stock -- Sixth Series (during this time, the
"Purchase Price"), and (B) if exercised after the filing of the
Subsequent Charter Amendment pursuant to K.S.A. Section 17-6003(d),
(i) one one-thousandth of a fully paid, non-assessable share of
Preferred Stock -- Series Sixth for each share represented by the
quotient of the Number Of Shares Issuable With Respect To The
Series DT Equity Interest In The FON Group (as such term is
defined in the Rights Agreement) divided by the aggregate number
of shares of Class A Common Stock - Series DT (as such term is
defined in the Rights Agreement) issued and outstanding at such
time, at a purchase price equal to $__________ per one one-
thousandth of a share of Preferred Stock -- Sixth Series (such
purchase price per one one-thousandth of a share of Preferred
Stock -- Sixth Series is referred to as the "Series DT Sixth
Series Purchase Price"), and (ii) one one-thousandth of a fully
paid, non-assessable share of Preferred Stock - Eighth Series,
Junior Participating, without par value (the "Preferred Stock --
Eighth Series") of the Company for each share represented by the
quotient of the Number Of Shares Issuable With Respect To The
Series DT Equity Interest In The PCS Group (as such term is
defined in the Rights Agreement) divided by the aggregate number
of shares of Class A Common Stock - Series DT issued and
outstanding at such time, at a purchase price equal $_______ per
one one-thousandth of a share of Preferred Stock -- Eighth Series
(such purchase per one one-thousandth of a share of Preferred
Stock -- Eighth Series is referred to as the "Series DT Eighth
Series Purchase Price"; the Series DT Sixth Series Purchase Price
and the Series DT Eighth Series Purchase Price are referred to
collectively, during this time period, as the "Purchase Price"),
upon presentation and surrender of this Rights Certificate with
the Form of Election to Purchase and related Certificate duly
executed. The Purchase Price may be paid in cash or by certified
bank check or bank draft payable to the order of the Company.
The number of Rights evidenced by this Rights Certificate (and
the number of shares which may be purchased upon exercise
thereof) set forth above, and the Purchase Price per share set
forth above, are the number and Purchase Price as of
______________, based on the Preferred Stock as constituted at
such date. The Company reserves the right to require prior to
the occurrence of a Triggering Event (as such term is defined in
the Rights Agreement) that a number of Rights be exercised so
that only whole shares of Preferred Stock will be issued.
Upon the occurrence of a Section 11(a)(ii) Event (as
such term is defined in the Rights Agreement), if the Rights
evidenced by this Rights Certificate are beneficially owned by
(i) an Acquiring Person or an Affiliate or Associate of an
Acquiring Person (as such terms are defined in the Rights
Agreement), (ii) a transferee of an Acquiring Person or of any
such Associate or Affiliate, or (iii) under certain circumstances
specified in the Rights Agreement, a transferee of a person who,
after such transfer, became an Acquiring Person or an Affiliate
or Associate of an Acquiring Person, such Rights shall become
null and void and no holder hereof shall have any right with
respect to such Rights from and after the occurrence of such
Section 11(a)(ii) Event.
As provided in the Rights Agreement, the Purchase Price
and the number and kind of shares of Preferred Stock or other
securities which may be purchased upon the exercise of the Rights
evidenced by this Rights Certificate are subject to modification
and adjustment upon the happening of certain events, including
Triggering Events (as such term is defined in the Rights Agree
ment).
This Rights Certificate is subject to all of the terms,
provisions and conditions of the Rights Agreement, which terms,
provisions and conditions are hereby incorporated herein by
reference and made a part hereof and to which Rights Agreement
reference is hereby made for a full description of the rights,
limitations of rights, obligations, duties and immunities
hereunder of the Rights Agent, the Company and the holders of the
Rights Certificates, which limitations of rights include the
temporary suspension of the exercisability of such Rights under
the specific circumstances set forth in the Rights
Agreement. Copies of the Rights Agreement are on file at the
above-mentioned office of the Rights Agent and are also available
upon written request to the Rights Agent.
This Rights Certificate, with or without other Rights
Certificates, upon presentation and surrender at the principal
office or offices of the Rights Agent designated for such
purpose, may be exchanged for another Rights Certificate or
Rights Certificates of like tenor and date evidencing Rights
entitling the holder to purchase a like aggregate number of one
one-thousandth of a share of each of the Preferred Stock--Series
Sixth and Preferred Stock--Series Eighth as the Rights evidenced
by the Rights Certificate or Rights Certificates surrendered
shall have entitled such holder to purchase. If this Rights
Certificate shall be exercised in part, the holder shall be
entitled to receive upon presentation and surrender hereof
another Rights Certificate or Rights Certificates for the number
of whole Rights not exercised.
Subject to the provisions of the Rights Agreement, the
Rights evidenced by this Certificate may be redeemed by the
Company at its option at a redemption price of $.01 per Right at
any time prior to the earlier of the close of business on (i) the
tenth business day following the Stock Acquisition Date, and (ii)
the Final Expiration Date. In addition, subject to the
provisions of the Rights Agreement, each Right evidenced by this
Certificate may be exchanged by the Company at its option for one
share of the applicable class or series (which the holder would
be entitled to receive upon exercise thereof) of Common Stock (as
such term is defined in the Rights Agreement) of the Company
(subject to adjustment for any stock split, stock dividend or
similar transaction) following the Stock Acquisition Date and
prior to the time an Acquiring Person owns 50% or more of the
Voting Power (as such term is defined in the Rights Agreement) of
the Company.
No fractional shares of Preferred Stock--Series Sixth
and Preferred Stock--Series Eighth will be issued upon the
exercise of any Right or Rights evidenced hereby (other than
fractions which are integral multiples of one one-thousandth of a
share of Preferred Stock, which may, at the election of the
Company, be evidenced by depositary receipts), but in lieu
thereof a cash payment will be made, as provided in the Rights
Agreement.
No holder of this Rights Certificate, as such, shall be
entitled to vote or receive dividends or be deemed for any
purpose the holder of shares of Preferred Stock--Series Sixth and
Preferred Stock--Series Eighth or of any other securities of the
Company which may at any time be issuable on the exercise hereof,
nor shall anything contained in the Rights Agreement or herein be
construed to confer upon the holder hereof, as such, any of the
rights of a stockholder of the Company or any right to vote for
the election of directors or upon any matter submitted to
stockholders at any meeting thereof, or to give or withhold
consent to any corporate action, or to receive notice of meetings
or other actions affecting stockholders (except as provided in
the Rights Agreement), or to receive dividends or subscription
rights, or otherwise, until the Right or Rights evidenced by this
Rights Certificate shall have been exercised as provided in the
Rights Agreement.
This Rights Certificate shall not be valid or
obligatory for any purpose until it shall have been countersigned
by the Rights Agent.
WITNESS the facsimile signature of the proper officers
of the Company and its corporate seal.
Dated as of _____________, ____
ATTEST: SPRINT CORPORATION
By:
Secretary Name:
Title:
Countersigned:
UMB BANK, N.A.
By:
Authorized Signature
[Form of Reverse Side of Rights Certificate]
FORM OF ASSIGNMENT
(To be executed by the registered holder if such
holder desires to transfer any or all of the
Rights represented by this Rights Certificate.)
FOR VALUE RECEIVED, the undersigned hereby sells, assigns
and transfers unto
(Please print name, address and social security or other identif
ying number of transferee)
( ) of the Rights represented by this Rights
Certificate, together with all right, title and interest in and
to said Rights, and does hereby irrevocably constitute and
appoint _____________________________ Attorney, to transfer the
Rights on the books of Sprint Corporation, with full power of
substitution.
Dated: _____________, ____
Signature
Signature Guaranteed:
Certificate
The undersigned hereby certifies by checking the
appropriate boxes that:
(1) this Rights Certificate [ ] is [ ] is not
being sold, assigned and transferred by or on behalf of a Person
who is or was an Acquiring Person or an Affiliate or Associate of
an Acquiring Person (as such terms are defined pursuant to the
Rights Agreement);
(2) after due inquiry and to the best knowledge of the
undersigned, it [ ] did [ ] did not acquire the Rights
evidenced by this Rights Certificate from any Person who is, was
or subsequently became an Acquiring Person or an Affiliate or
Associate of an Acquiring Person.
Dated: ____________, ____
Signature
Signature Guaranteed:
NOTICE
The signature to the foregoing Assignment and
Certificate must correspond to the name as written upon the face
of this Rights Certificate in every particular, without
alteration or enlargement or any change whatsoever, and must be
guaranteed by a member firm of a registered securities exchange,
a member of the National Association of Securities Dealers, Inc.,
or a commercial bank or trust company having an officer or
correspondent in the United States.
FORM OF ELECTION TO PURCHASE
(To be executed by the registered holder if such holder desires
to
exercise any or all of the Rights represented by this Rights Cer
tificate.)
To: SPRINT CORPORATION:
The undersigned hereby irrevocably elects to exercise
( )Rights represented by this Rights Certificate to purchase
the shares of Preferred Stock issuable upon the exercise of the
Rights (or such other securities of the Company or of any other
person which may be issuable upon the exercise of the Rights) and
requests that certificates for such shares be issued in the name
of and delivered to:
Please insert social security
or taxpayer identification number
(Please print name and address)
If such number of Rights shall not be all the Rights
evidenced by this Rights Certificate, a new Rights Certificate
for the balance of such Rights shall be registered in the name of
and delivered to:
Please insert social security
or taxpayer identification number
(Please print name and address)
Dated: __________, ____
Signature
Signature Guaranteed:
Certificate
The undersigned hereby certifies by checking the
appropriate boxes that:
(1) the Rights evidenced by this Rights Certificate
[ ] are [ ] are not being exercised by or on behalf of a
Person who is or was an Acquiring Person or an Affiliate or
Associate of an Acquiring Person (as such terms are defined
pursuant to the Rights Agreement);
(2) after due inquiry and to the best knowledge of the
undersigned, it [ ] did [ ] did not acquire the Rights
evidenced by this Rights Certificate from any Person who is, was
or became an Acquiring Person or an Affiliate or Associate of an
Acquiring Person.
Dated: _____________, ____
Signature
Signature Guaranteed:
NOTICE
The signature to the foregoing Election to Purchase and
Certificate must correspond to the name as written upon the face
of this Rights Certificate in every particular, without
alteration or enlargement or any change whatsoever, and must be
guaranteed by a member firm of a registered securities exchange,
a member of the National Association of Securities Dealers, Inc.,
or a commercial bank or trust company having an officer or
correspondent in the United States.
Exhibit 4.2
AMENDED AND RESTATED STANDSTILL AGREEMENT
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
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 $1.00
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:
(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 Cox 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.
"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).
"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.
"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. $2.00 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. $1.00 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. $2.00 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. $1.00 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. $2.00 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. $1.00 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 2 FON Stock.
"Sprint FON Stock" 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.
"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 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 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 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 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 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
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;
(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;
(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.
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:
FT: 6 place d'Alleray
75505 Paris Cedex 15
France
Attention: Group Executive Vice President
Resources
Tel: (33-1) 44-44-84-72
Fax: (33-1) 44-44-01-51
with a copy to:
6 place d'Alleray
75505 Paris Cedex 15
France
Attention: General Counsel
Tel: (33-1) 44-44-84-76
Fax: (33-1) 44-12-40-35
and with a copy to:
Shearman & Sterling
599 Lexington Avenue
New York, New York 10022
U.S.A.
Attention: Alfred J. Ross, Jr., Esq.
Tel: (212) 848-4000
Fax: (212) 848-8434
DT: Friedrich-Ebert-Allee 140
D-53113 Bonn
Germany
Attention: Chief Executive Officer
Tel: 49-228-181-9000
Fax: 49-228-181-8970
with a copy to:
Cleary, Gottlieb, Steen & Hamilton
One Liberty Plaza
New York, New York 10006
U.S.A.
Attention: Robert P. Davis, Esq.
Tel: (212) 225-2000
Fax: (212) 225-3999
Sprint: 2330 Shawnee Mission Parkway
East Wing
Westwood, Kansas 66205
U.S.A.
Attention: General Counsel
Tel: (913) 624-8440
Fax: (913) 624-8426
with a copy to:
King & Spalding
191 Peachtree Street
Atlanta, Georgia 30303
U.S.A.
Attention: Bruce N. Hawthorne, Esq.
Tel: (404) 572-4903
Fax: (404) 572-5146
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.
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 THE COURTS OF THE
STATE OF NEW YORK 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 AN OFFICE AT 1633 BROADWAY, NEW YORK,
NEW YORK 10019, 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 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 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.
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. Section 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.
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:
Exhibits to Amended and Restated Standstill Agreement
Exhibit A Qualified Subsidiary Standstill Agreement
Exhibit B Strategic Investor Standstill Agreement
