UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D/A-6
Under the Securities Exchange Act of 1934
(Amendment No. 6)
SPRINT CORPORATION
(Name of Issuer)
FON Common Stock--Series 1, par value $2.00 per share
PCS Common Stock--Series 1, par value $1.00 per share
(Title of Class of Securities)
852061100 (FON Common Stock--Series 1)
852061506 (PCS Common Stock--Series 1)
(CUSIP Numbers)
Deutsche Telekom AG
Helmut Reuschenbach, Senior Executive Director,
Finance and Treasurer,
Friedrich-Ebert-Allee 140, D-53113 Bonn, Germany
Phone (49-228) 181-8000
France Telecom S.A.
Pierre Dauvillaire, Chief Financial Officer
6 place d'Alleray, 75505 Paris Cedex 15, France
Phone (33-1) 44-44-84-72
(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)
March 30, 1999
(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to report
the acquisition which is the subject of this Schedule 13D, and is filing this
schedule because of Rule 13d-1(e), 13d-1(f) or 13d-1(g), check the following box
|_|.
Note: Schedules filed in paper format shall include a signed original and five
copies of the schedule, including all exhibits. See Rule 13d-7(b) for other
parties to whom copies are to be sent.
* The remainder of this cover page shall be filled out for a reporting person's
initial filing on this form with respect to the subject class of securities, and
for any subsequent amendment containing information which would alter
disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be deemed
to be "filed" for the purpose of Section 18 of the Securities Exchange Act of
1934 ("Act") or otherwise subject to the liabilities of that section of the Act
but shall be subject to all other provisions of the Act (however, see the
Notes).
<PAGE>
SCHEDULE 13D
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Deutsche Telekom AG
IRS Identification Number: N/A
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2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) |X|
(b) |_|
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3 SEC USE ONLY
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4 SOURCE OF FUNDS*
WC
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5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) |_|
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6 CITIZENSHIP OR PLACE OF ORGANIZATION
Germany
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7 SOLE VOTING POWER
0
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8 SHARED VOTING POWER
o 86,236,036 shares of Class A Common Stock (equivalent
in voting power to 86,236,036 shares of Series 3 FON
NUMBER OF Common Stock and 43,118,018 shares of Series 3 PCS
SHARES Common Stock)
BENEFICIALLY o 400,000 shares of Series 3 FON Common Stock
OWNED BY o 12,199,418 shares of Series 3 PCS Common Stock
EACH
REPORTING -----------------------------------------------------------------
PERSON WITH 9 SOLE DISPOSITIVE POWER
o 43,118,018 shares of Class A Common Stock (equivalent
in voting power to 43,118,018 shares of Series 3 FON
Common Stock and 21,559,009 shares of Series 3 PCS
Common Stock)
o 200,000 shares of Series 3 FON Common Stock
o 6,099,709 shares of Series 3 PCS Common Stock
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10 SHARED DISPOSITIVE POWER
0
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11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
86,236,036 shares of Class A Common Stock (equivalent in voting power
to 86,236,036 shares of Series 3 FON Common Stock and 43,118,018
shares of Series 3 PCS Common Stock), 400,000 shares of Series 3 FON
Common Stock and 12,199,418 shares of Series 3 PCS Common Stock.
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12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES*
|_|
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13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
100% of Class A Common Stock, 100% of Series 3 FON Common Stock and
100% of Series 3 PCS Common Stock, estimated to represent
approximately 20.0% of the aggregate voting power of the capital stock
of the Issuer. If the Class A Common Stock, the Series 3 FON Common
Stock and the Series 3 PCS Common Stock were converted into Series 1
FON Common Stock and Series 1 PCS Common Stock, the Class A Common
Stock, the Series 3 FON Common Stock and the Series 3 PCS Common Stock
would represent approximately 20.0% of the Series 1 FON Common Stock
and approximately 12.4% of the aggregate number of outstanding shares
of all series of PCS Common Stock (or approximately 20.0% of the
aggregate voting power of all series of PCS Common Stock and PCS
Preferred Stock).
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14 TYPE OF REPORTING PERSON*
CO
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*SEE INSTRUCTIONS BEFORE FILLING OUT!
<PAGE>
This Amendment No. 6 (this "Amendment") amends and supplements the Schedule
13D filed on February 12, 1996, as amended by Amendment No. 1 to the Schedule
13D filed on May 6, 1996, Amendment No. 2 to the Schedule 13D ("Amendment No.
2") filed on May 28, 1998, Amendment No. 3 to the Schedule 13D ("Amendment No.
3") filed on December 1, 1998, Amendment No. 4 to the Schedule 13D ("Amendment
No. 4") filed on February 12, 1999 and Amendment No. 5 to the Schedule 13D
("Amendment No. 5") filed on February 24, 1999 (as amended and supplemented, the
"Schedule 13D"), of Deutsche Telekom AG ("DT") and France Telecom S.A. ("FT"),
with respect to the FON Common Stock - Series 1, par value $2.00 per share (the
"Series 1 FON Common Stock"), and the PCS Common Stock - Series 1, par value
$1.00 per share (the "Series 1 PCS Common Stock"), of Sprint Corporation, a
Kansas corporation (the "Issuer"). All capitalized terms used in this Amendment
and not otherwise defined herein have the meanings ascribed to such terms in the
Schedule 13D, as previously amended and supplemented.
Since February 22, 1999, DT and FT together acquired in open market
transactions an aggregate of 900,000 shares of Series 1 PCS Common Stock and an
aggregate of 400,000 shares of Series 1 FON Common Stock for an aggregate
consideration (including commissions) of approximately $78,899,721 in order to
maintain their aggregate percentage voting power of the capital stock of the
Issuer. According to the charter of the Issuer, upon the acquisition of shares
of Series 1 PCS Common Stock and Series 1 FON Common Stock by DT and FT, such
shares are deemed to convert into shares of Series 3 PCS Common Stock and Series
3 FON Common Stock, respectively.
ITEM 3. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION
Item 3 of the Schedule 13D is hereby amended by adding the following at the
end thereof:
Between February 22, 1999 and March 30, 1999, each of DT and FT acquired in
open market transactions 450,000 shares of Series 1 PCS Common Stock and 200,000
shares of Series 1 FON Common Stock for approximately $39,449,860 (including
commissions). All of the funds used by each of DT and FT to acquire such shares
were provided by internally generated funds.
ITEM 4. PURPOSE OF THE ACQUISITION
Item 4 of the Schedule 13D is hereby amended by adding the following at the
end thereof:
Since February 22, 1999, DT and FT have acquired in open market
transactions in the aggregate 900,000 shares of Series 1 PCS Common Stock and
400,000 shares of Series 1 FON Common Stock in order to maintain their aggregate
percentage voting power of 20.0% of the capital stock of the Issuer.
ITEM 5. INTEREST IN SECURITIES OF THE ISSUER
1. Deutsche Telekom AG
(a) On March 30, 1999, DT was the beneficial owner of 86,236,036 shares of
Class A Common Stock (100% of the outstanding Class A Common Stock), 400,000
shares of Series 3 FON Common Stock (100% of the outstanding Series 3 FON Common
Stock), and 12,199,418 shares of Series 3 PCS Common Stock (100% of the
outstanding Series 3 PCS Common Stock), estimated to represent approximately
20.0% of the aggregate voting power of the capital stock of the Issuer,
calculated on the basis of 86,236,036 shares of Class A Common Stock,
345,788,196 shares of Series 1 FON Common Stock, 400,000 shares of Series 3 FON
Common Stock, 197,024,520 shares of Series 1 PCS Common Stock, 195,094,340
shares of Series 2 PCS Common Stock, 12,199,418 shares of Series 3 PCS Common
Stock, 246,766 shares of PCS Preferred Stock and certain other outstanding
voting preferred stock of the Issuer as being outstanding, based on the
information made available to FT and DT by the Issuer, adjusted to give effect
to the conversion of shares acquired by FT and DT in open market transactions
into Series 3 FON Common Stock and Series 3 PCS Common Stock. If the Class A
Common Stock, Series 3 FON Common Stock and Series 3 PCS Common Stock were
converted into Series 1 FON Common Stock and Series 1 PCS Common Stock, the
Class A Common Stock, Series 3 FON Common Stock and Series 3 PCS Common Stock
beneficially owned by DT on March 30, 1999 would represent approximately 20.0%
of the Series 1 FON Common Stock and approximately 12.4% of the aggregate number
of outstanding shares of all series of PCS Common Stock (or approximately 20.0%
of the aggregate voting power of all series of PCS Common Stock and PCS
Preferred Stock).
On March 30, 1999, Ron Sommer, Chairman of the Board of Management of DT
and a director of Sprint, beneficially owned 6,000 shares of Series 1 FON Common
Stock and 3,000 shares of Series 1 PCS Common Stock, which may be acquired upon
the exercise of stock options under the Issuer's stock option plans. Each of DT
and FT disclaims beneficial ownership of any such shares.
(c) The dates, numbers of shares and prices per share for all purchases of
Series 1 PCS Common Stock and Series 1 FON Common Stock by DT from February 22,
1999 through March 30, 1999 are shown on Annex A hereto, which is incorporated
herein by reference. All such purchases of Series 1 PCS Common Stock and Series
1 FON Common Stock were made through a broker on the New York Stock Exchange.
Except as described above, neither DT, nor to the best knowledge of DT, any
of the persons listed in Schedule I of Amendment No. 3 effected any transactions
in the Series 1 PCS Common Stock or the Series 1 FON Common Stock since February
22, 1999.
(d) No one other than DT is known to have the right to receive or the power
to direct the receipt of dividends from, or the proceeds from the sale of, the
shares of Class A Common Stock, Series 3 FON Common Stock and Series 3 PCS
Common Stock owned by DT.
2. France Telecom S.A.
(a) On March 30, 1999, FT was the beneficial owner of 86,236,036 shares of
Class A Common Stock (100% of the outstanding Class A Common Stock), 400,000
shares of Series 3 FON Common Stock (100% of the outstanding Series 3 FON Common
Stock), and 12,199,418 shares of Series 3 PCS Common Stock (100% of the
outstanding Series 3 PCS Common Stock), estimated to represent approximately
20.0% of the aggregate voting power of the capital stock of the Issuer,
calculated on the basis described in Item 5.1(a) above. If the Class A Common
Stock, Series 3 FON Common Stock and Series 3 PCS Common Stock were converted
into Series 1 FON Common Stock and Series 1 PCS Common Stock, the Class A Common
Stock, Series 3 FON Common Stock and Series 3 PCS Common Stock beneficially
owned by FT on March 30, 1999 would represent approximately 20.0% of the Series
1 FON Common Stock and approximately 12.4% of the aggregate number of
outstanding shares of all series of PCS Common Stock (or approximately 20.0% of
the aggregate voting power of all series of PCS Common Stock and PCS Preferred
Stock).
On March 30, 1999, Michel Bon, Chairman and Chief Executive Officer of FT
and a director of Sprint, beneficially owned 6,000 shares of Series 1 FON Common
Stock and 3,000 shares of Series 1 PCS Common Stock, which may be acquired upon
the exercise of stock options under the Issuer's stock option plans. Each of DT
and FT disclaims beneficial ownership of any such shares.
(c) The dates, numbers of shares and prices per share for all purchases of
Series 1 PCS Common Stock and Series 1 FON Common Stock by FT from February 22,
1999 through March 30, 1999 are shown on Annex B hereto, which is incorporated
herein by reference. All such purchases of Series 1 PCS Common Stock and Series
1 FON Common Stock were made through a broker on the New York Stock Exchange.
Except as described above, neither FT, nor to the best knowledge of FT, any
of the persons listed in Schedule II of Amendment No. 3 effected any
transactions in the Series 1 PCS Common Stock or the Series 1 FON Common Stock
since February 22, 1999.
(d) No one other than FT is known to have the right to receive or the power
to direct the receipt of dividends from, or the proceeds from the sale of, the
shares of Class A Common Stock, Series 3 FON Common Stock and Series 3 PCS
Common Stock owned by FT.
ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH RESPECT TO
SECURITIES OF THE ISSUER
On March 9, 1999, Tele-Communications, Inc. ("TCI"), a party to the Top Up
Right Agreement, dated May 26, 1998, among FT, DT, TCI, Comcast Corporation and
Cox Communucations, Inc. (as described in Amendment No. 2 and attached thereto
as Exhibit 4), transferred all of its shares of Series 2 PCS Common Stock and
PCS Preferred Stock to the Liberty PCS Trust established by an affiliate of TCI,
and, in connection therewith, the Liberty PCS Trust assumed TCI's rights and
obligations under the Top Up Right Agreement and DT, FT and the Liberty PCS
Trust entered into a separate Top Up Right Agreement dated March 9, 1999 (the
"Trust Top Up Right Agreement"), a copy of which is attached as Exhibit 1 and
incorporated by reference herein.
ITEM 7. MATERIAL TO BE FILED AS EXHIBITS
Exhibit 1 Top Up Right Agreement, dated March 9, 1999, among France
Telecom S.A., Deutsche Telekom AG and Liberty PCS Trust.
ANNEXES
A. Description of purchases of Series 1 PCS Common Stock and Series
1 FON Common Stock by DT from February 22, 1999 through March 30,
1999.
B. Description of purchases of Series 1 PCS Common Stock and Series
1 FON Common Stock by FT from February 22, 1999 through March 30,
1999.
<PAGE>
After reasonable inquiry and to my best knowledge and belief, I certify
that the information set forth in this statement is true, complete and correct.
DATED: April 01, 1999 DEUTSCHE TELEKOM AG
By: /s/ Helmut Reuschenbach
Name: Helmut Reuschenbach
Title: Senior Executive Director
<PAGE>
ANNEX A
Set forth below are the purchases of Series 1 PCS Common Stock and Series 1
FON Common Stock by DT from February 22, 1999 through March 30, 1999. "PCS1"
means Series 1 PCS Common Stock and "FON1" means Series 1 FON Common Stock.
Where and how
Class of Number of Price Per transaction was
Date Security Shares Share* effected
---- -------- ------ ----- --------
03/22/99 PCS1 73,450 $46.4903 All transactions
03/22/99 FON1 56,000 $99.3642 through a broker
03/23/99 PCS1 165,000 $43.0568 on the New York
03/23/99 FON1 75,000 $97.7270 Stock Exchange
03/24/99 PCS1 85,000 $43.0305
03/24/99 FON1 40,000 $95.1414
03/25/99 PCS1 86,800 $45.1508
03/25/99 FON1 29,000 $98.1787
03/26/99 PCS1 39,750 $44.9770
* Price per share excludes commissions.
<PAGE>
ANNEX B
Set forth below are the purchases of Series 1 PCS Common Stock and Series 1
FON Common Stock by FT from February 22, 1999 through March 30, 1999. "PCS1"
means Series 1 PCS Common Stock and "FON1" means Series 1 FON Common Stock.
Where and how
Class of Number of Price Per transaction was
Date Security Shares Share* effected
---- -------- ------ ----- --------
03/22/99 PCS1 73,450 $46.4903 All transactions
03/22/99 FON1 56,000 $99.3642 through a broker
03/23/99 PCS1 165,000 $43.0568 on the New York
03/23/99 FON1 75,000 $97.7270 Stock Exchange
03/24/99 PCS1 85,000 $43.0305
03/24/99 FON1 40,000 $95.1414
03/25/99 PCS1 86,800 $45.1508
03/25/99 FON1 29,000 $98.1787
03/26/99 PCS1 39,750 $44.9770
* Price per share excludes commissions.
<PAGE>
Exhibit 1
TOP UP RIGHT AGREEMENT
Among
FRANCE TELECOM S.A.,
DEUTSCHE TELEKOM AG,
and
LIBERTY PCS TRUST
March 9, 1999
THIS TOP UP RIGHT AGREEMENT (the "Agreement") is entered into as of March
9, 1999, by and among FRANCE TELECOM S.A., a societe anonyme formed under the
laws of France ("FT"), DEUTSCHE TELEKOM AG, an Aktiengesellschaft formed under
the laws of Germany ("DT"), and the LIBERTY PCS TRUST (the "Trust"), a trust
established under that certain Trust Agreement (the "Trust Agreement"), entered
into as of March 9, 1999, between TCI Wireless Holdings, Inc. ("Wireless
Holdings"), a Delaware corporation and an indirect wholly owned subsidiary of
Tele-Communications, Inc., and M. LaVoy Robison, in his capacity as trustee
under the Trust Agreement (the "Trustee").
WHEREAS, pursuant to a Restructuring and Merger Agreement (the
"Restructuring and Merger Agreement"), dated May 26, 1998, among Sprint
Corporation, a Kansas corporation ("Sprint"), Tele-Communications, Inc., a
Delaware corporation ("TCI"), Comcast Corporation, a Pennsylvania corporation
("Comcast"), and Cox Communications, Inc., a Delaware corporation ("Cox", and
together with TCI and Comcast, the "Cable Parents"), and the other parties
listed therein, Cox and certain subsidiaries of the Cable Parents (each, a
"Cable Partner") received shares of Series 2 PCS Stock in exchange for certain
interests in Sprint PCS indirectly owned by the Cable Parents (the "CP
Exchange");
WHEREAS, such shares of Series 2 PCS Stock issued to the Cable Partners in
the CP Exchange carry 1/10th of a vote per share;
WHEREAS, pursuant to the Articles of Incorporation of Sprint, upon the
transfer of any shares of Series 2 PCS Stock by a Cable Partner to a Person that
is not a Cable Partner or an Affiliate or (in some circumstances) an Associate
thereof, such shares automatically convert into full voting shares of Sprint;
WHEREAS, FT and DT desire certain rights to purchase a portion of the
shares of Series 2 PCS Stock transferred by the Cable Partners with respect to
that amount of shares of Series 2 PCS Stock that results in the conversion of
such shares to Series 1 PCS Stock;
WHEREAS, pursuant to a form of Amended and Restated Stockholders' Agreement
entered into in connection with the CP Exchange among Sprint, FT and DT, FT and
DT have certain rights to purchase additional shares of Class A Stock (as
defined herein) so as to enable FT and DT to maintain a certain percentage of
the aggregate number of votes represented or to be represented by the voting
securities of Sprint;
WHEREAS, the Company, FT and DT entered into a Master Restructuring and
Investment Agreement dated as of May 26, 1998 (the "FT/DT Restructuring
Agreement"), which contemplated, among other things, the purchase by FT and DT
of (i) shares of Series 3 PCS Stock in connection with the CP Exchange and (ii)
shares of Series 1 PCS Stock in connection with the IPO;
WHEREAS, in accordance with the Restructuring and Merger Agreement, TCI
entered into a Top Up Right Agreement with FT, DT, Comcast and Cox, dated as of
May 26, 1998, in substantially the form hereof (the "Top Up Right Agreement");
WHEREAS, Wireless Holdings has entered into the Trust Agreement with the
Trustee, pursuant to which Wireless Holdings has transferred (or caused to be
transferred) (the "Trust Transfer") to the Trust all of Wireless Holding's
direct and indirect interest in the securities of Sprint (the "Sprint
Securities") including all securities held by TCI Spectrum Investment, Inc., a
Colorado corporation and wholly owned subsidiary of Wireless Holdings;
WHEREAS, the Top Up Right Agreement provides for certain rights and
obligations with respect to the Sprint Securities;
WHEREAS, the Trust Transfer is a "Non-Cash Transfer" under Section 3.06 of
the Top Up Right Agreement;
WHEREAS, the Trust is an "Associate" of TCI and Wireless Holdings for
purposes of Section 3.06 of the Top Up Right Agreement, and is executing this
Agreement in accordance therewith;
WHEREAS, for purposes of this Agreement, the Trust shall be deemed to be a
Cable Parent and/or its own Cable Partner, as the context requires;
WHEREAS, unless otherwise indicated, capitalized terms used in this
Agreement but not defined in this Agreement have the meanings given to such
terms in the Restructuring and Merger Agreement;
NOW, THEREFORE, in consideration of (i) FT and DT's respective undertakings
to purchase shares of Series 3 PCS Stock as set forth in the Top Up Right
Agreement and in the FT/DT Restructuring Agreement, (ii) FT and DT entering into
the Amended Registration Rights Agreement in connection with the CP Exchange
among Sprint, FT and DT (the "Registration Rights Agreement"), and (iii) FT and
DT's respective undertakings to vote in favor of the Recapitalization, and the
mutual covenants and obligations hereinafter set forth, the parties hereto,
intending to be legally bound, hereby agree as follows:
DEFINITIONS
"Associate" means, when used to indicate a relationship with any Person,
(i) a corporation or organization of which such Person is a partner or is,
directly or indirectly, the beneficial owner of ten percent or more of any class
of equity securities and (ii) any trust or other estate in which such Person has
a substantial beneficial interest or as to which such Person serves as trustee
or in a similar capacity.
"Amended and Restated Standstill Agreement" means the Amended and Restated
Standstill Agreement entered into among Sprint, FT and DT in connection with the
CP Exchange as it may be amended or supplemented from time to time.
"Business Day" means a day of the year on which banks are not required or
authorized to be closed in the State of New York or in France or Germany.
"Class A Common Stock" means the Class A Common Stock, par value $2.50 per
share, of Sprint, as provided for in the Current Sprint Charter.
"Class A Holders" means FT, DT and any Qualified Subsidiary to which shares
of Class A Stock or Non-Class A Common Stock have been transferred in accordance
with Section 2.2 of the Stockholders' Agreement, and any Qualified Stock
Purchaser that acquires shares of Class A Stock pursuant to Article VI or
Section 5.1 of the Stockholders' Agreement or pursuant to Section 2.2(b) of the
Amended and Restated Standstill Agreement.
"Class A Provisions" has the meaning set forth in the Stockholders'
Agreement.
"Class A Stock" means the Class A Common Stock, the Series 3 FON Stock and
the Series 3 PCS Stock.
"Closing Price" means, with respect to a security on any day, the last sale
price, regular way, or in case no such sale takes place on such day, the average
of the closing bid and asked price, regular way, in either case as reported in
the principal consolidated transaction reporting system with respect to
securities listed or admitted to trading on The New York Stock Exchange, Inc.
or, if such security is not listed or admitted to trading on such exchange as
reported in the principal consolidated transaction reporting system with respect
to securities listed on the principal national securities exchange on which the
security is listed or admitted to trading or, if the security is not listed or
admitted to trading on any national securities exchange, the last quoted sale
price or, if not so quoted, the average of the high bid and low asked prices in
the over-the-counter market, as reported by NASDAQ or such other system then in
use, or, if on any such date such security is not quoted by any such
organization, the average of the closing bid and asked price as furnished by a
professional market maker making a market in the security selected in good faith
by the Board of Directors. If the security is not publicly held or so listed or
publicly traded, "Closing Price" means the fair market value of such security.
"CP Registration Rights Agreement" means the Registration Rights Agreement
in the form of Exhibit H attached to the Restructuring and Merger Agreement
entered into at the Closing among Sprint, TCI, Comcast and Cox, pursuant to
which the Trustee is becoming a party thereto, and the "Designated
Representative" under Section 8(b)(i) thereof, in connection with the Trust
Transfer.
"Derivative Security" means any and all rights, warrants, options,
convertible securities, or exchangeable securities or indebtedness, or other
rights, exercisable for or convertible into or exchangeable for, directly or
indirectly, shares of Sprint PCS Stock, whether at the time of issuance or upon
the passage of time or the occurrence of some future event, but does not include
shares of Sprint PCS Stock. Subject to Section 3.05 (b) , the term "Derivative
Security" also includes any security whose value is determined by reference to
the value of Series 1 PCS Stock but is not otherwise within the definition of
the term "Derivative Security".
"Encumbrance" means any security interest, pledge, mortgage, lien
(including, without limitation, environmental and tax liens), charge,
encumbrance, adverse claim, preferential arrangement or restriction of any kind,
including, without limitation, any restriction on the use, voting, transfer,
receipt of income or other exercise of any attributes of ownership.
"Exchange Act" means the Securities Exchange Act of 1933, as amended.
"FT/DT Restructuring Agreement" has the meaning set forth in the preamble.
"Non-Class A Common Stock" means the Sprint FON Common Stock and the Sprint
PCS Common Stock.
"Person" means any individual, corporation, partnership, limited liability
company, trust, unincorporated association or other entity.
"Qualified Stock Purchaser" shall have the meaning set forth in the
Stockholders' Agreement.
"Qualified Subsidiary" shall have the meaning set forth in the
Stockholders, Agreement.
"Registration Rights Agreement" has the meaning set forth in the preamble.
"Sprint PCS Stock" means the Series 1 PCS Stock, the Series 2 PCS Stock and
the Series 3 PCS Stock.
"Third Party" means any Person other than a Cable Partner, FT, DT or any
Affiliate thereof.
"Top Up Amount" means as to any Class A Holder with respect to any
Transfer, the lesser of (A) an amount of Series 2 PCS Stock such that such Class
A Holder would maintain immediately after such Transfer the percentage voting
power in Sprint equal to the percentage voting power in Sprint that such Class A
Holder held as of the immediately preceding record date for the payment of
dividends by Sprint immediately preceding such Transfer and (B) such Class A
Holder's pro rata share (allocated on the basis of the amounts determined under
clause (A) for all Class A Holders with respect to such Transfer) of 18% of the
amount of Series 2 PCS Stock proposed to be Transferred.
"Trading Day" means, with respect to any security, a day on which the
principal national securities exchange on which such security is listed or
admitted to trading, or NASDAQ, if such security is listed or admitted to
trading thereon, is open for the transaction of business (unless such trading
shall have been suspended for the entire day) or, if such security is not listed
or admitted to trading on any national securities exchange or NASDAQ, any day
other than a Saturday, Sunday, or a day on which banking institutions in the
State of New York are authorized or obligated by law or executive order to
close.
REPRESENTATIONS AND WARRANTIES
Representations and Warranties. Each party to this Agreement represents and
warrants to the other parties that, as of the date hereof:
such party has full power and authority to execute and deliver this Agreement
and the execution and delivery by such party of this Agreement has been duly
authorized by all necessary action; and
this Agreement has been duly and validly executed and delivered by such party
and constitutes the binding obligation of such party, enforceable against such
party in accordance with its terms.
Representation and Warranties of FT. FT represents and warrants to the
other parties that compliance with the loi no. 94-665 du 4 aout 1994 relative a
l'emploi de la langue francaise (or any other statute or regulation having a
similar effect) is not required in connection with the execution, delivery or
performance of this Agreement or in order for this Agreement to be a valid and
binding obligation of FT.
TOP UP RIGHT
Top Up Right. In the event of any pending or completed transfer by any
Cable Partner (the "Selling Cable Partner") of shares of Series 2 PCS Stock
which would trigger the conversion of such shares to shares of Series 1 PCS
Stock pursuant to the Articles of Incorporation of Sprint which conversion would
in turn trigger an Equity Purchase Right pursuant to the form of Amended and
Restated Stockholders' Agreement entered into among FT, DT and Sprint in
connection with the CP Exchange (each, a "Transfer"), the Selling Cable Partner
shall provide FT and DT, with a copy to Sprint, written notice of such pending
or, if prior notice is not required by the express terms of this Agreement,
completed Transfer (a "Notice of Pending or Completed Disposition") of such
shares (or of any pending or completed disposition of any Derivative Securities)
at the time and in the manner set forth herein. Subject to the terms and
conditions set forth below, any Notice of Pending or Completed Disposition
required hereby shall be provided as promptly as practicable in connection with
any such Transfer, taking into account the applicable method of and
circumstances surrounding the Transfer. With respect to certain such Transfers,
to the extent and subject to the terms and conditions set forth below, each
Class A Holder shall have the right (the "Top Up Right") to purchase from the
Selling Cable Partner all or a portion of the amount of shares of Series 2 PCS
Stock equal to the applicable Top Up Amount for such Class A Holder (the
"Offered Shares"); provided, however, that such right shall be exercisable with
respect to any Transfer only to the extent FT and DT have not otherwise
exercised their Equity Purchase Rights or made open market purchases with
respect to any such Transfer. In the event that the Class A Holders are entitled
to a Top Up Right pursuant to the terms of this Article III, the Notice of
Pending or Completed Disposition shall, to the extent practicable in light of
the proposed or completed method of disposition as described below, set forth
the number of Offered Shares being offered, the price (to the extent determined)
at which the Selling Cable Partner proposes to or has previously effected
Transfer of the shares of Series 2 PCS Stock which triggered the Top Up Right,
the method(s) of Transfer, and any other material terms of the pending or
completed Transfer.
To the extent a particular method of Transfer of shares of Series 2 PCS
Stock by a Selling Cable Partner does not fit within a method of Transfer
described in Sections 3.02 through 3.06, the parties will in good faith apply
the provisions set forth herein (the "Comparable Provisions") which would apply
to the particular method of Transfer which most closely approximates the method
of Transfer proposed by the Selling Cable Partner in order to provide the Class
A Holders with a corresponding Top Up Right in connection with such Transfer
(but only to the extent the Comparable Provisions provide for a Top Up Right).
Any Top Up Right set forth in this Article III shall be exercisable by
written notice (a "Notice of Exercise") to each Selling Cable Partner given in
the manner set forth below. Such Notice of Exercise shall state the number of
Offered Shares or portion of the applicable Top Up Amount that the Class A
Holder elects to purchase.
Upon the consummation of any purchase and sale pursuant to this Article
III, and against delivery of the purchase price for such Offered Shares payable
in immediately available funds by wire transfer or check, the applicable Selling
Cable Partner shall deliver or cause to be delivered, and shall transfer the
ownership of the Offered Shares to be sold, free and clear of any Encumbrance
created by the Selling Cable Partner.
Modified Dribble Out. In the event of any Transfer of Series 2 PCS Stock by
a Selling Cable Partner identified in any Notice of Pending or Completed
Disposition as a "dribble out" Transfer, such Selling Cable Partner may, but is
not required to, offer to the Class A Holders a Top Up Right on the terms and
subject to the conditions set forth in Section 3.03(i) below, mutatis mutandis;
provided, however, that the aggregate amount of shares so identified as "dribble
out" amounts by each Selling Cable Partner in any three-month period shall not
exceed the lesser of (i) the then applicable average weekly trading volume of
the Sprint PCS Stock (as determined pursuant to Rule 144) and (ii) 1% of the
outstanding shares of Sprint PCS Stock (the "Dribble Out Amount"). A Selling
Cable Partner making a "dribble out" Transfer shall deliver a Notice of Pending
or Completed Disposition promptly after each such Transfer (which notice shall
identify such Transfer as a "dribble out" Transfer). If the Selling Cable
Partner so elects to offer to the Class A Holders a Top Up Right, the price at
which each Class A Holder shall have the right to purchase the Offered Shares
(the "First Offer Price") shall be equal to the price paid or to be paid by the
transferee(s) in respect of the "dribble out" Transfer(s) (or the blended
average price in the case of a series of such Transfers).
Cash Sales (Other than Underwritten Public Offerings and Derivative
Securities). In the event of any Transfer by a Selling Cable Partner of shares
of Series 2 PCS Stock for cash in excess of the Dribble Out Amount, the Selling
Cable Partner will, except as set forth in Sections 3.04 and 3.05 below, at the
applicable Selling Cable Partner's election, either (i) permit the Class A
Holders to exercise a Top Up Right by Notice of Exercise given within 30 days
following delivery of a Notice of Pending or Completed Disposition at a First
Offer Price equal to the greater of (A) the blended average price paid by the
applicable Third Party purchasers and (B) the most recent Closing Price at the
time of exercise of the applicable Top Up Right or (ii) provide the Class A
Holders reasonable advance notice of such Transfer (which, in the case of block
or at the market trades occurring within 10 Trading Days of such notice shall be
one Business Day and in the case of all other Transfers (other than underwritten
private placements) shall be 5 Business Days), in which event, each Class A
Holder shall be entitled to elect by Notice of Exercise given prior to the
earlier to occur of (I) the close of business on the applicable transaction date
and (II) the fifth Business Day following the date of such notice, to exercise
the applicable Top Up Right in connection with such Transfer at a per share
price equal to the applicable transaction price (or the blended average price in
the case of a series of at-the-market Transfers). To assure participation in
transactions described in clause (i) or clause (ii) of the previous sentence (as
well as "dribble out" Transfers as to which the applicable Selling Cable Partner
offers a Top Up Right), a Class A Holder may provide binding standby purchase
commitments to the Selling Cable Partners which will specify price ranges,
aggregate limits and term. Any such binding standby commitment is revocable by
the applicable Class A Holder on 5 Business Days' notice (but not following the
delivery of the applicable Notice of Pending or Completed Disposition under
clause (i) or (ii) above or such a notice as to a "dribble out" Transfer as to
which the Selling Cable Partner offers a Top Up Right). No Transfers described
in this Section 3.03 shall be made during the five Trading Day period (each, a
"Blackout Period") which (x) either precedes the record date for stockholder
meetings of Sprint or (y) terminates on the dividend payment date for Sprint
capital stock.
Underwritten Public Offerings or Private Placements. In the event of any
Transfer of Series 2 PCS Stock by a Selling Cable Partner in an underwritten
public offering or underwritten private placement, the Top Up Right described in
this Section 3.04 will apply. The Selling Cable Partner will provide the Class A
Holders with a Notice of Pending or Completed Disposition in respect of any such
Transfer (i) at the same time the applicable notice is provided to Sprint under
the CP Registration Rights Agreement (but in any event not less than 10 Business
Days prior to any Transfers made pursuant to any underwritten public offering)
or (ii) 20 days prior to any dispositions made pursuant to any underwritten
private placement. In order to exercise its Top Up Right hereunder, a Class A
Holder must deliver a Notice of Exercise to the Selling Cable Partner no later
than the commencement of any "road show" (or other corresponding marketing
efforts) in connection with any public offering or within 10 Business Days of
receipt of a Notice of Pending or Completed Disposition in connection with an
underwritten private placement. The Notice of Exercise may provide that the
portion of the Top Up Amount to be purchased by the applicable Class A Holder is
subject to change according to the final offering price of the shares purchased
by the applicable Third Party purchasers. The First Offer Price will be equal to
such offering price, less one half of the per share underwriting discount.
The Notice of Exercise of any Class A Holder to purchase shares of Series 2
PCS Stock pursuant to this Section 3.04 shall represent a binding commitment of
such Class A Holder (subject to the consummation of the applicable public
offering or private placement).
Sprint will provide all Class A Holders with one copy of the registration
statement, and all amendments thereto, promptly upon filing thereof with the
SEC, in connection with any underwritten public offering by a Selling Cable
Partner hereunder.
Sales of Derivative Securities. Subject to comparable notice provisions to
those set forth in Section 3.04 hereof, the Class A Holders will have the right
to exercise a Top Up Right by acquiring an appropriate portion of any Derivative
Security proposed to be sold by any Selling Cable Partner in a public offering
or a private placement transaction by providing a Notice of Exercise in the
manner described in Section 3.04 above, mutatis mutandis; provided, however,
that except as set forth in the proviso in (b) below, the Class A Holders have
no Top Up Right with respect to a Derivative Security that does not provide for
settlement by delivery of shares of PCS Stock (e.g., settlement in cash and/or
other currency only) . To the extent that the issuance of any such Derivative
Security transfers voting rights with respect to the underlying shares to the
holder of such Derivative Security, a Class A Holder shall acquire equivalent
rights with respect to the applicable portion of such underlying shares to the
extent it exercises its Top Up Right with respect to such Derivative Security.
Class A Holders shall not have any Top Up Right upon delivery of shares of
Series 2 PCS Stock to the holders of such Derivative Securities upon settlement,
exchange or conversion of the Derivative Security; provided, however, that in
the event the applicable Selling Cable Partner sells shares of Series 2 PCS
Stock in order to obtain cash to pay a cash settlement price with respect to
Derivative Security, the applicable Top Up Right set forth in this Article III
apply.
Non-Cash Sales. In the case of a proposed Transfer for consideration other
than cash (a "Non-Cash Transfer"), the applicable Selling Cable Partner will, at
its election, either (i) if the transferee would be an "Associate" of the
Selling Cable Partner following such Non-Cash Transfer, require the applicable
transferee to assume the obligations of the applicable Selling Cable Partner
under this Agreement with respect to the applicable shares of Series 2 PCS Stock
and require the transferee to execute and deliver an equivalent Top Up Right
Agreement with FT and DT, in which case such transferee would enter into a
standstill agreement with Sprint and the applicable shares of Series 2 PCS Stock
would not, pursuant to the terms of the Articles of Incorporation of Sprint,
convert into Series 1 PCS Stock in connection with such Non-Cash Transfer or
(ii) whether or not such transferee is or would be an "Associate," provide a
Notice of Pending or Completed Disposition in respect of such proposed Non-Cash
Transfer 20 Business Days prior to the proposed Transfer (or, if later, the date
of the applicable agreement regarding the proposed Transfer). In the case of a
Non-Cash Transfer to which a Selling Cable Partner elects to have clause (ii)
hereof apply, the Class A Holders will have a Top Up Right at the time of such
Transfer (exercisable by delivery of a Notice of Exercise given prior to such
Transfer) at a First Offer Price equal to a cash price per share equivalent to
the value per share of the non-cash consideration paid in connection with such
Transfer as determined by independent investment banks selected by the
applicable Class A Holder and the Selling Cable Partner (i.e., a customary 2+1
appraisal process, with a third appraiser appointed only if the first two
appraisals differ by more than 10%). In the case of non-cash consideration that
is received by the Selling Cable Partner on a tax-free basis, the value of such
non-cash consideration for purposes of determining the First Offer Price shall
be "grossed-up" by an amount equal to (x) the gain recognized by the Selling
Cable Partner on a per share basis divided by (y) one minus the highest
statutory federal and state income tax rate applicable to income of the Selling
Cable Partner. Each Cable Parent shall cause its applicable Cable Partner to not
consummate Non-Cash Transfers pursuant to clause (ii) of this Section 3.06
during the Blackout Periods.
Inapplicable Events. Notwithstanding anything else set forth in this
Agreement, Class A Holders shall not have a Top Up Right and the Cable Partners
shall not be required to deliver a Notice of Pending or Completed Disposition in
connection with (i) any transfer to Sprint, (ii) an automatic conversion of
shares of Series 2 PCS Stock into shares of Series 1 PCS Stock pursuant to the
Articles of Incorporation of Sprint and (iii) Transfers by a Cable Partner of
Series 2 PCS Stock to an Affiliate of a Cable Partner; provided, however, that
any such Affiliate transferee agrees in writing to be bound by the terms of this
Agreement and shall thereafter be deemed a "Cable Partner" of the applicable
Cable Parent hereunder.
TERMINATION
Termination. The obligations of the Cable Parents and the Cable Partners
hereunder shall terminate (i) at such time as the "equity purchase rights" of
the Class A Holders contained in Article V of the form of Amended and Restated
Stockholders' Agreement entered into in connection with the CP Exchange would
terminate, (ii) as to DT or FT, respectively, upon any material breach of this
Agreement by DT or FT, as the case may be, including any determination that the
representation and warranty of FT in Section 2.02 is untrue in any material
respect, or (iii), as to any Cable Parent, at such time as such Cable Parent and
its subsidiaries no longer hold any shares of Series 2 PCS Stock.
MISCELLANEOUS
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: France Telecom S.A.
6 place d'Alleray
75505 Paris Cedex 15
France
Attn: Group Executive Vice President
Resources
Tel: (33 1) 44 44 84 72
Fax: (33 1) 44 44 01 51
with a copy to: France Telecom S.A.
6 place d'Alleray
75505 Paris Cedex 15
France
Attn: General Counsel
Tel: (33 1) 44 44 84 76
Fax: (33 1) 44 44 02 13
with a copy to: Shearman & Sterling
599 Lexington Avenue
New York, New York 10022
U.S.A.
Attn: Alfred J. Ross, Jr., Esq.
Tel: (212) 848-4000
Fax: (212) 848-8434
DT: Deutsche Telekom S.A.
Friedrich-Ebeert-Allee 140
D-53113 Bonn
Germany
Tel: 49-228-181-9000
Fax: 49-228-181-8970
Attn: Chief Executive Officer
with a copy to: Cleary, Gottlieb, Steen & Hamilton
One Liberty Plaza
New York, New York 10006
U.S.A.
Attn: Robert P. Davis, Esq.
Tel: (212) 225-2000
Fax: (212) 225-3999
Notice to FT or DT shall be deemed to be notice to its Qualified
Subsidiaries and Qualified Stock Purchasers.
Trust: Liberty PCS Trust
c/o M. LaVoy Robison, Trustee
1001 Green Oaks Drive
Littleton, Colorado 80121
Tel: (303) 794-1199
Fax: (303) 794-1199
with copies to: Liberty Media Corporation
8101 East Prentice, Suite 500
Englewood, Colorado 80111
Tel: (303) 721-5440
Fax: (303) 721-5443
Attention: Charles Y. Tanabe
Baker & Botts, L.L.P.
599 Lexington Avenue
New York, New York 10022-6030
Tel: (212) 705-5030
Fax: (212) 705-5125
Attention: John L. Graham
The parties to this Agreement shall promptly notify each other in the
manner provided in this Section 6.01 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 telecopies also
shall be sent concurrently by mail, but shall in any event be effective as
stated above.
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 hereto. No failure or delay or 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.
Binding Agreement; Assignment; No Third Party Beneficiaries. This Agreement
will be binding upon and inure to the benefit of the parties hereto and their
successors and permitted assigns. Except as set forth herein and by operation of
law, no party to this Agreement may assign or delegate all or any portion of its
rights, obligations or liabilities under this Agreement without the prior
written consent of each other party to this Agreement. 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.
GOVERNING LAW; DISPUTE RESOLUTION; EQUITABLE RELIEF. 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).
EACH PARTY IRREVOCABLY CONSENTS AND AGREES THAT ANY LEGAL ACTION, SUIT OR
PROCEEDING BY IT AGAINST ANY OF THE OTHER PARTIES WITH RESPECT TO ITS RIGHTS,
OBLIGATIONS OR LIABILITIES UNDER OR ARISING OUT OF OR IN CONNECTION WITH THIS
AGREEMENT SHALL BE BROUGHT BY SUCH PARTY ONLY IN THE UNITED STATES DISTRICT
COURT FOR THE SOUTHERN DISTRICT OF NEW YORK OR, IN THE EVENT (BUT ONLY IN THE
EVENT) SUCH COURT DOES NOT HAVE SUBJECT MATTER JURISDICTION OVER SUCH ACTION,
SUIT OR PROCEEDING, IN THE COURTS OF THE STATE OF NEW YORK SITTING IN NEW YORK
CITY, AND EACH PARTY HEREBY IRREVOCABLY ACCEPTS AND SUBMITS TO THE JURISDICTION
OF EACH OF THE AFORESAID COURTS IN PERSONAM, WITH RESPECT TO ANY SUCH ACTION,
SUIT OR PROCEEDING (INCLUDING, WITHOUT LIMITATION, CLAIMS FOR INTERIM RELIEF,
COUNTERCLAIMS, ACTIONS WITH MULTIPLE DEFENDANTS AND ACTIONS IN WHICH SUCH PARTY
IS IMPLIED). EACH PARTY HERETO 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.
EACH PARTY HERETO 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 SUCH PARTY IN THE MANNER PROVIDED IN
SECTION 6.01. EACH PARTY 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 SUCH PARTY WILL AT ALL TIMES HAVE AN AGENT FOR SERVICE OR 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 OR 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 PARTY
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.
EACH PARTY HERETO AGREES THAT MONEY DAMAGES WOULD NOT BE A SUFFICIENT
REMEDY FOR THE OTHER PARTIES HERETO FOR ANY BREACH OF THIS AGREEMENT BY IT, AND
THAT IN ADDITION TO ALL OTHER REMEDIES THE OTHER PARTIES HERETO MAY HAVE, THEY
SHALL BE ENTITLED TO SPECIFIC PERFORMANCE AND TO INJUNCTIVE OR OTHER EQUITABLE
RELIEF AS A REMEDY FOR ANY SUCH BREACH. EACH PARTY HERETO AGREES NOT TO OPPOSE
THE GRANTING OF SUCH RELIEF IN THE EVENT A COURT DETERMINES THAT SUCH A BREACH
HAS OCCURRED, AND TO WAIVE ANY REQUIREMENT FOR THE SECURING OR POSTING OF ANY
BOND IN CONNECTION WITH SUCH REMEDY.
Severability. The invalidity or unenforceability of any provision hereof in
any jurisdiction will not effect 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
Law, each party hereto waives any provision of Law that renders any provision
hereof prohibited or unenforceable in any respect. If any provision of this
Agreement is held to be unenforceable for any reason, it shall be adjusted
rather than voided, if possible, in order to achieve the intent of the parties
to this Agreement to the extent possible.
Headings; Counterparts. Headings in this Agreement are for convenience of
reference only and will not affect the construction of any provisions hereof.
This Agreement may be executed in one or more counterparts, each of which when
so executed and delivered will be deemed an original but all of which will
constitute one and the same Agreement.
Entire Agreement. This Agreement embodies the entire agreement and
understanding of the parties hereto in respect of the subject matter contained
herein, provided that this provision shall not abrogate any other written
agreement between the parties hereto, executed simultaneously with this
Agreement. This Agreement supersedes all prior agreements and understandings
between the parties with respect to such subject matter, expect as so provided
in the preceding sentence.
Waiver of Immunity. Each of FT and DT agrees that, to the extent that it or
any of its property is or becomes entitled at any time to any immunity on the
grounds of sovereignty or otherwise based upon its status as an agency or
instrumentality of government from any legal action, suit or proceeding or from
set off or counterclaim relating to this Agreement from the jurisdiction of any
competent court described in Section 6.04, 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 an arbitral award or from any other
legal process in any jurisdiction, if, 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 or thereof (including any obligation for
the payment of money). Each of FT and DT agrees that the waiver in this
provision is irrevocable and is not subject to withdrawal in any jurisdiction or
under any statute, including the Foreign Sovereign Immunities Act, 28 U.S.C. ss.
1602 et seq. The foregoing waiver shall constitute a present waiver of immunity
at any time any action is initiated against FT or DT with respect to this
Agreement.
IN WITNESS WHEREOF, the parties hereto have duly executed this TOP UP RIGHT
Agreement as of the day and year first above written.
FRANCE TELECOM S.A.
By: Thierry Girard
Title: Senior Vice President
DEUTSCHE TELEKOM AG
By: Helmut Reuschenbach
Title: Senior Executive Director
LIBERTY PCS TRUST
By: M. LaVoy Robison, in his capacity as
Trustee of the Liberty PCS Trust
