UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D/A-9
Under the Securities Exchange Act of 1934
(Amendment No. 9)
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.
Jean-Louis Vinciguerra, Senior Executive Vice-President and
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)
December 28, 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
- --------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) |X|
(b) |_|
- --------------------------------------------------------------------------------
3 SEC USE ONLY
- --------------------------------------------------------------------------------
4 SOURCE OF FUNDS*
WC
- --------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) |_|
- --------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Germany
- --------------------------------------------------------------------------------
7 SOLE VOTING POWER
0
--------------------------------------------------------------
o 86,236,036 shares of Class A Common Stock (equivalent
NUMBER in voting power to 86,236,036 shares of Series 3 FON
OF Common Stock and 43,118,018 shares of Series 3 PCS
SHARES Common Stock)
BENEFICIALLY o 88,601,036 shares of Series 3 FON Common Stock
OWNED BY o 13,568,168 shares of Series 3 PCS Common Stock
EACH
REPORTING -------------------------------------------------------------
PERSON WITH 9 SOLE DISPOSITIVE POWER
0
-------------------------------------------------------------
10 SHARED 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 44,464,179 shares of Series 3 FON Common Stock
o 7,127,161 shares of Series 3 PCS Common Stock
- --------------------------------------------------------------------------------
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), 88,601,036 shares of Series 3 FON Common Stock
and 13,568,168 shares of Series 3 PCS Common Stock.
- --------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES*
|_|
- --------------------------------------------------------------------------------
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 11.9% 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
- --------------------------------------------------------------------------------
*SEE INSTRUCTIONS BEFORE FILLING OUT!
<PAGE>
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
France Telecom S.A.
IRS Identification Number: N/A
- --------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) |X|
(b) |_|
- --------------------------------------------------------------------------------
3 SEC USE ONLY
- --------------------------------------------------------------------------------
4 SOURCE OF FUNDS*
WC
- --------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) |_|
- --------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
France
- --------------------------------------------------------------------------------
7 SOLE VOTING POWER
0
--------------------------------------------------------------
o 86,236,036 shares of Class A Common Stock (equivalent
NUMBER in voting power to 86,236,036 shares of Series 3 FON
OF Common Stock and 43,118,018 shares of Series 3 PCS
SHARES Common Stock)
BENEFICIALLY o 88,601,036 shares of Series 3 FON Common Stock
OWNED BY o 13,568,168 shares of Series 3 PCS Common Stock
EACH
REPORTING -------------------------------------------------------------
PERSON WITHG 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 44,136,857 shares of Series 3 FON Common Stock
o 6,441,007 shares of Series 3 PCS Common Stock
-------------------------------------------------------------
10 SHARED DISPOSITIVE POWER
0
- --------------------------------------------------------------------------------
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), 88,601,036 shares of Series 3 FON Common Stock
and 13,568,168 shares of Series 3 PCS Common Stock.
- --------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES*
|_|
- --------------------------------------------------------------------------------
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 11.9% 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).
- --------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
CO
- --------------------------------------------------------------------------------
*SEE INSTRUCTIONS BEFORE FILLING OUT!
<PAGE>
This Amendment No. 9 (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 filed on May 28,
1998, Amendment No. 3 to the Schedule 13D filed on December 1, 1998, Amendment
No. 4 to the Schedule 13D filed on February 12, 1999, Amendment No. 5 to the
Schedule 13D filed on February 24, 1999, Amendment No. 6 to the Schedule 13D
filed on April 1, 1999, Amendment No. 7 to the Schedule 13D filed on July 6,
1999 and Amendment No. 8 to the Schedule 13D filed on October 8, 1999 (as
amended and supplemented, this "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.
ITEM 2. IDENTITY AND BACKGROUND
Item 2 of the Schedule 13D is hereby amended by adding the following at the
end of numbered paragraph 1 thereof:
On December 29, 1999, DT transferred its shares in the Issuer to its
wholly-owned subsidiary listed in paragraph 1A below, in accordance with Section
2.2 of the Amended Stockholders' Agreement.
1A. a. NAB Nordamerika Beteiligungs Holding GmbH, a limited
liability company formed under the laws of Germany ("NAB").
b. c/o Deutsche Telekom AG, Friedrich-Ebert-Allee 140, 53113
Bonn, Germany.
c. NAB conducts no business other than holding the shares of
the Issuer transferred to it by DT.
d. During the last five years, NAB has not been convicted in
any criminal proceeding.
e. During the last five years, NAB has not been a party to a
civil proceeding of a judicial or administrative body of
competent jurisdiction nor as a result of such proceeding is
or was subject to a judgment, decree or final order
enjoining future violations of, or prohibiting or mandating
activities subject to, federal or state securities laws or
finding any violation with respect to such laws.
The two Managing Directors of NAB, Dr. Joachim Peckert and Mr. Heinz
Klesing, whose addresses are c/o Deutsche Telekom AG, Friedrich-Ebert-Allee 140,
53113 Bonn, Germany, are each citizens of Germany. During the last five years,
to the best knowledge of DT, neither Managing Director has been (a) convicted in
a criminal proceeding (excluding traffic violations or similar misdemeanors) or
(b) a party to a civil proceeding of a judicial or administrative body of
competent jurisdiction nor as a result of such proceeding is or was subject to a
judgment, decree or final order enjoining future violations of, or prohibiting
or mandating activities subject to, federal or state securities laws or finding
any violation with respect to such laws.
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:
On December 28, 1999, DT acquired from the Issuer pursuant to the equity
purchase rights contained in the Amended Stockholders' Agreement 280,896 shares
of Series 3 PCS Common Stock and 245,459 shares of Series 3 FON Common Stock for
an aggregate purchase price of approximately $32,632,046 (or approximately
$67.47 per share of Series 3 PCS Stock as to 202,146 shares, $99.625 per share
of Series 3 PCS Stock as to 78,750 shares and $45.42 per share of Series 3 FON
Stock). On December 28, 1999, FT acquired from the Issuer pursuant to the equity
purchase rights contained in the Amended Stockholders' Agreement 197,854 shares
of Series 3 PCS Common Stock and 244,541 shares of Series 3 FON Common Stock for
an aggregate purchase price of approximately $24,455,340 (or approximately
$67.47 per share of Series 3 PCS Stock and $45.42 per share of Series 3 FON
Stock). All such purchases were made in order for DT and FT to maintain their
aggregate percentage voting power of the capital stock of the Issuer at
approximately 20%. All of the funds used to acquire such shares were provided by
DT and FT's 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:
On December 28, 1999, DT and FT acquired from the Issuer pursuant to the
equity purchase rights contained in the Amended Stockholders' Agreement an
aggregate of 478,750 shares of Series 3 PCS Common Stock and 490,000 shares of
Series 3 FON Common Stock for an aggregate purchase price of approximately
$57,087,387 in order to maintain their aggregate percentage voting power in the
capital stock of the Issuer at approximately 20.0%.
Following the announcement of the Issuer's proposed acquisition by MCI
WORLDCOM, Inc., discussions have been continuing between the Issuer, DT and FT
concerning the future of the Global One Joint Venture and the terms applicable
to DT and FT's investment in the Issuer.
ITEM 5. INTEREST IN SECURITIES OF THE ISSUER
1. Deutsche Telekom AG
(a-b) On December 29, 1999, DT (indirectly through NAB) was the beneficial
owner of 86,236,036 shares of Class A Common Stock (100% of the outstanding
Class A Common Stock), 88,601,036 shares of Series 3 FON Common Stock (100% of
the outstanding Series 3 FON Common Stock), and 13,568,168 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
outstanding capital stock of the Issuer, calculated on the basis of 86,236,036
shares of Class A Common Stock, 699,001,985 shares of Series 1 FON Common Stock,
88,601,036 shares of Series 3 FON Common Stock, 200,391,857 shares of Series 1
PCS Common Stock, 219,043,844 shares of Series 2 PCS Common Stock, 13,568,168
shares of Series 3 PCS Common Stock, 246,766 shares of PCS Preferred Stock and
certain other voting preferred stock of the Issuer as being outstanding, based
on the information made available to FT and DT by the Issuer. 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 December 29, 1999 would represent approximately
20.0% of the Series 1 FON Common Stock and approximately 11.9% 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).
By virtue of their relationship, DT and NAB may be deemed to share voting
power and dispositive power with respect to the securities of the Issuer
beneficially owned by them.
On December 27, 1999, Ron Sommer, Chairman of the Board of Management of DT
and a director of Sprint, beneficially owned 18,000 shares of Series 1 FON
Common Stock and 4,500 shares of Series 1 PCS Common Stock, which may be
acquired upon the exercise of stock options under the Issuer's stock option
plans. On that date, Mr. Sommer exercised options to acquire 1,000 shares of
Series 1 FON Common Stock at approximately $17.9215 per share and options to
acquire 500 shares of Series 1 PCS Common Stock at approximately $7.8137 per
share. Each of DT and FT disclaims beneficial ownership of any such shares.
(c) On December 28, 1999, DT acquired from the Issuer pursuant to the
equity purchase rights contained in the Amended Stockholders' Agreement 280,896
shares of Series 3 PCS Common Stock and 245,459 shares of Series 3 FON Common
Stock for the purchase prices specified in Item 3.
Except as described herein, neither DT, NAB, nor, to the best knowledge of
DT, any of the persons listed in Schedule I of Amendment No. 3 to this Schedule
13D, nor either Managing Director of NAB, effected any transactions in the PCS
Common Stock or the FON Common Stock of the Issuer since October 1, 1999.
(d) No one other than NAB 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 beneficially owned by DT.
2. France Telecom S.A.
(a) On December 29, 1999, FT was the beneficial owner of 86,236,036 shares
of Class A Common Stock (100% of the outstanding Class A Common Stock),
88,601,036 shares of Series 3 FON Common Stock (100% of the outstanding Series 3
FON Common Stock), and 13,568,168 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 outstanding capital stock of the
Issuer, calculated on the same basis as specified in paragraph 1(a) of this Item
5. 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 December 29, 1999 would represent
approximately 20.0% of the Series 1 FON Common Stock and approximately 11.9% 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 December 29, 1999, Michel Bon, Chairman and Chief Executive Officer of
FT and a director of Sprint, beneficially owned 18,000 shares of Series 1 FON
Common Stock and 4,500 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) On December 28, 1999, FT acquired from the Issuer pursuant to the
equity purchase rights contained in the Amended Stockholders' Agreement 197,854
shares of Series 3 PCS Common Stock and 244,541 shares of Series 3 FON Common
Stock for the purchase prices specified in Item 3.
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 to this Schedule 13D
effected any transactions in the PCS Common Stock or the FON Common Stock of the
Issuer since October 1, 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 beneficially owned by FT.
ITEM 7. MATERIAL TO BE FILED AS EXHIBITS
Item 7 of the Schedule 13D is hereby amended by adding the following
exhibits:
Exhibit 1 Qualified Subsidiary Assumption Agreement dated as of December
29, 1999, by NAB
Exhibit 2 Qualified Subsidiary Standstill Agreement dated as of December
29, 1999 between the Issuer and NAB
Exhibit 3 Qualified Subsidiary Confidentiality Agreement dated as of
December 29, 1999 between the Issuer and NAB
Exhibit 4 Assumption Agreement of NAB Nordamerika Beteiligungs Holding GmbH
dated as of December 29, 1999
Exhibit 5 Transfer Agreement dated December 29, 1999 between DT and NAB
<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: January 6, 2000 DEUTSCHE TELEKOM AG
By: /s/ Kevin Copp
-------------------------------------
Name: Kevin Copp
Title: Head of International Legal Affairs
<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: January 10, 2000 FRANCE TELECOM S.A.
By: /s/ Thierry Girard
-----------------------
Name: Thierry Girard
Title: Senior Vice-President
EXHIBIT 1
---------
EXECUTION COPY
QUALIFIED SUBSIDIARY ASSUMPTION AGREEMENT
-----------------------------------------
Reference is hereby made to the Amended and Restated Stockholders'
Agreement, dated as of November 23, 1998 (as amended or modified from time to
time, the "Stockholders' Agreement"), among Sprint Corporation, a Kansas
corporation (the "Company"); France Telecom, a SOCIETE ANONYME organized under
the laws of France ("FT"); and Deutsche Telekom AG, an AKTIENGESELLSCHAFT
organized under the laws of Germany ("DT"). Capitalized terms used but not
defined herein shall have the meanings assigned to such terms in the
Stockholders Agreement.
1. The undersigned, NAB Nordamerika Beteiligungs Holding GmbH, a limited
liability company organized under the laws of Germany and wholly-owned
subsidiary of DT, is acquiring Shares from a Class A Holder on the date hereof.
Pursuant to the Stockholders' Agreement, for good and valuable consideration and
as a condition to the effectiveness of such acquisition of Shares by the
undersigned, the undersigned hereby expressly confirms and agrees for the
benefit of the Company and each Class A Holder:
(1) to be bound by the terms and conditions of the Stockholders' Agreement
and to perform, observe and assume each and every one of the
covenants, rights, promises, agreements, terms, conditions,
obligations and duties of a Class A Holder under the Stockholders'
Agreement upon the consummation of its acquisition of Shares;
(2) to be bound by the terms and conditions of the Amended and Restated
Registration Rights Agreement and to perform, observe and assume each
and every one of the covenants, rights, promises, agreements, terms,
conditions, obligations and duties of a holder of Eligible Securities
(as defined in the Amended and Restated Registration Rights Agreement)
under the Amended and Restated Registration Rights Agreement; and
(3) to execute and deliver concurrently herewith a Qualified Subsidiary
Standstill Agreement and a Qualified Subsidiary Confidentiality
Agreement.
2. From and after the date hereof, (a) all references to a "Class A Holder"
or the "Class A Holders" in the Stockholders' Agreement shall be deemed to be
references to the undersigned (along with the other Class A Holders), and (b)
all references to a "holder of Eligible Securities" or "holders of Eligible
Securities" in the Registration Rights Agreement shall be deemed to be
references to the undersigned (along with the other holders of Eligible
Securities).
3. Nothing in this Assumption Agreement shall relieve any Class A Holder of
any of its obligations under the Stockholders' Agreement or any of the Other
Investment Documents, and the Class A Holder effecting the Transfer of Shares to
the undersigned shall remain liable for the performance by the undersigned as a
party.
4. The undersigned represents and warrants to the Company (a) that it is a
Qualified Subsidiary within the meaning of Article I of the Stockholders'
Agreement; and (b) that DT owns and holds directly 100% of the undersigned's
equity interests.
5. The undersigned 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, the Stockholders' Agreement or the
Amended and Restated Registration Rights Agreement from the jurisdiction of any
competent court described in Section 11.5 of the Stockholders' Agreement or
Section 3.6 of the Amended and Restated Registration Rights Agreement, 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, the Stockholders' Agreement or the Amended and
Restated Registration Rights Agreement or the subject matter hereof or thereof
(including any obligation for the payment of money). The undersigned 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. P. 1602 eT Seq. The foregoing waiver shall constitute
a present waiver of immunity at any time any action is initiated against the
undersigned with respect to this Agreement, the Stockholders' Agreement or the
Amended and Restated Registration Rights Agreement.
<PAGE>
IN WITNESS WHEREOF, the undersigned has duly executed this Qualified
Subsidiary Assumption Agreement as of this 29th day of December, 1999.
NAB Nordamerika Beteiligungs Holding GmbH
By: ______________________________________
Name: Dr. Joachim Peckert
Title: Managing Director
By: ______________________________________
Name: Mr. Heinz Klesing
Title: Managing Director
EXHIBIT 2
---------
EXECUTION COPY
QUALIFIED SUBSIDIARY STANDSTILL AGREEMENT
THIS STANDSTILL AGREEMENT (this "Agreement") dated as of December 29th,
1999 by and among SPRINT CORPORATION, a corporation formed under the laws of
Kansas ("Sprint") and NAB NORDAMERIKA BETEILIGUNGS HOLDING GMBH, a limited
liability company formed under the laws of Germany ("Transferee").
R E C I T A L S
WHEREAS, Sprint, France Telecom, a societe anonyme organized under the laws
of France ("FT"), and Deutsche Telekom AG, an Aktiengesellschaft organized under
the laws of Germany ("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 to its entering into the FT/DT Restructuring
Agreement, Sprint required FT and DT to enter into that certain Amended and
Restated Standstill Agreement dated as of November 23, 1998 (as it may be
amended or modified from time to time, the "Standstill Agreement"), which
contains certain restrictions on purchases of Sprint capital stock by FT and DT
and their respective Affiliates and Associates and certain other limitations on
FT and DT and their respective Affiliates and Associates;
WHEREAS, Section 4.1 of the Standstill Agreement provides that FT and DT
shall cause each Qualified Subsidiary which acquires any shares of Sprint Voting
Securities to execute a Qualified Subsidiary Standstill Agreement prior to and
as a condition to the effectiveness of such acquisition;
WHEREAS, Transferee is a Qualified Subsidiary to which DT has indicated
that it intends to transfer Sprint Voting Securities; and
WHEREAS, this Agreement is the Qualified Subsidiary Standstill Agreement
which Transferee is executing in compliance with Section 4.1 of the Standstill
Agreement.
NOW, THEREFORE, in consideration of these premises and the covenants and
agreements contained herein, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, Transferee and Sprint
(each a "Party" and collectively the "Parties"), intending to be legally bound,
hereby agree as follows:
ARTICLE 1.
DEFINITIONS AND CONSTRUCTION
Section 1.1. Certain Definitions. As used in this Agreement, the following
terms shall have the meanings specified below:
"Acquisition Proposal" shall mean any proposal involving a transaction of
the kind described in Section 8.6 of ARTICLE SIXTH of Sprint's Articles.
"Affiliate" shall mean, with respect to any Person, any other Person that
directly, or indirectly through one or more intermediaries, Controls or is
Controlled by, or is under common Control with, such Person, provided that (a)
no JV Entity shall be deemed an Affiliate of any Party unless (i) FT, DT and
Atlas own a majority of the Voting Power of such JV Entity and Sprint does not
have the Tie-Breaking Vote (as defined in Section 18.1 of the Joint Venture
Agreement), (ii) FT, DT or Atlas has the Tie-Breaking Vote or (iii) FT, DT or
any of their Affiliates cause such JV Entity to acquire Beneficial Ownership of
any Sprint equity securities; (b) FT, DT and Sprint shall not be deemed
Affiliates of each other; (c) Atlas shall be deemed an Affiliate of FT and DT;
and (d) the term "Affiliate" shall not include any Government Affiliate.
"Aggregate Foreign Ownership Limitation" shall mean the maximum aggregate
percentage of equity interests of Sprint that may be Owned of Record or Voted by
Aliens under Section 310(b)(4) of the Communications Act, without such ownership
or voting resulting in the possible loss, or possible failure to secure the
renewal or reinstatement, of any license or franchise of any Governmental
Authority held by Sprint or any of its Affiliates to conduct any portion of the
business of Sprint or such Affiliate, as such maximum aggregate percentage may
be increased from time to time by amendments to such section or by waivers
granted to Sprint by the FCC or by other determinations of the FCC, provided
that if Section 310(b)(4) is repealed or otherwise made inapplicable to the
ownership of Sprint capital stock by FT and DT, there shall be no Aggregate
Foreign Ownership Limitation.
"Amended and Restated Stockholders' Agreement" shall have the meaning set
forth in Article VIII of the FT/DT Restructuring Agreement.
"Amended Other Agreements" shall mean the FT/DT Restructuring Agreement,
the Amended and Restated Stockholders' Agreement, the Amended and Restated
Registration Rights Agreement (as defined in the Amended and Restated
Stockholders' Agreement), and the Amended and Restated Confidentiality
Agreements (as defined in the Amended and Restated Stockholders' Agreement).
"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 have the meaning set forth in ARTICLE SIXTH,
Section 10 of the Articles of Incorporation of Sprint, as amended from time to
time.
"Class A Stock" shall mean the Class A Common Stock, the Series 3 FON Stock
and the Series 3 PCS Stock.
"Communications Act" shall mean the United States Communications Act of
1934 and the rules and regulations thereunder.
"Control" (including, with its correlative meanings, "Controlled by" and
"under common Control with") shall mean, with respect to a Person or Group:
(a) ownership by such Person or Group of Votes entitling it to exercise in
the aggregate more than 50 percent of the Voting Power of the entity in
question; or
(b) possession by such Person or Group of the power, directly or
indirectly, (i) to elect a majority of the board of directors (or equivalent
governing body) of the entity in question; or (ii) to direct or cause the
direction of the management and policies of or with respect to the entity in
question, whether through ownership of securities, by contract or otherwise.
"Controlled Affiliates," with respect to the Transferee, shall mean any
Affiliates of the Transferee which are, directly or indirectly, controlled by
the Transferee.
"CP Closing" shall have the meaning set forth in Article VIII of the FT/DT
Restructuring Agreement.
"DT" shall have the meaning set forth in the first Whereas clause of this
Agreement.
"FT" shall have the meaning set forth in the first Whereas clause 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.
"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 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 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 the Standstill Agreement, this Agreement or
any corresponding provision of any other Qualified Subsidiary Standstill
Agreement and such breach resulted in, or was intended to facilitate, such Other
Holder's acquisition of Beneficial Ownership of Outstanding Sprint Voting
Securities in excess of such applicable Percentage Limitations.
"Percentage Ownership Interest" shall mean, with respect to any Person,
that percentage of the Voting Power of Sprint represented by Votes associated
with the Sprint Voting Securities owned of record by such Person or by its
nominees.
"Purchase Rights Agreement" shall mean the Top Up Rights Agreement dated as
of May 26, 1998 among FT, DT, Sprint and the Cable Partners as in effect on such
date.
"Qualified Stock Purchaser Standstill Agreement" shall mean a Standstill
Agreement in form and substance satisfactory to Sprint, FT and DT.
"Qualified Subsidiary Standstill Agreement" shall mean a Standstill
Agreement in the form of Exhibit A to the Standstill Agreement.
"Recapitalization" shall have the meaning set forth in Article VIII of the
FT/DT Restructuring Agreement.
"Record Date Period" shall mean a period of ten Trading Days beginning on
the ninth Trading Day (as defined in the Amended and Restated Stockholders'
Agreement) before a record date for a meeting of Sprint's stockholders or for
the payment of dividends and ending on (and including) such record date (which
shall be a Trading Day).
"Related Company" shall mean any Person not Controlled by FT or DT, but in
which FT, DT and their respective Affiliates and Associates, individually or in
the aggregate, directly or indirectly through one or more intermediaries, own
securities entitling them to exercise in the aggregate more than 35 percent of
the Voting Power of such Person.
"Series 1 FON Stock" shall mean the FON Common Stock -- Series 1, par value
U.S. $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.
"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.
"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.
"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 -- Seventh
Series, Convertible, 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 Amended and Restated Rights Agreement
dated as of the date hereof, as amended from time to time, between Sprint and
UMB Bank, n.a., as rights agent.
"Sprint Voting Securities" shall mean the Sprint FON Common Stock, the
Sprint PCS Common Stock, the Sprint PCS Preferred Stock, the Class A Stock and
any other securities of Sprint having the right to Vote.
"Strategic Investor" shall mean any Person which owns directly any equity
interests in a Qualified Subsidiary, other than FT, DT, any wholly owned
Subsidiary of FT or DT or a Passive Financial Institution.
"Strategic Investor Standstill Agreement" shall mean a Standstill Agreement
in the form of Exhibit B to the Standstill Agreement.
"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 of the
Articles 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
TRANSFEREE AND ITS AFFILIATES AND ASSOCIATES
Section 2.1. Acquisition Restrictions.
(a) Subject to Sections 2.2, 2.3 and 2.4, Transferee agrees that it will
not, and will cause each of its respective Affiliates and Associates not to,
directly or indirectly, acquire, offer to acquire, or agree to acquire, by
purchase or otherwise, Beneficial Ownership of:
(i) any Sprint Voting Securities on or prior to July 31, 2010 (the
"Initial Standstill Period"), if any of the following would occur:
(A) the Votes represented by the Sprint Voting Securities
Beneficially Owned in the aggregate by FT, DT and their respective
Affiliates and Associates would represent in the aggregate more than
20% of the Voting Power represented by the Outstanding Sprint Voting
Securities, (B) the Votes represented by the shares of Class A
Common Stock (to the extent representing 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 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
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 Shares Issuable With Respect To The Class A Equity
Interest In The PCS Group) and Sprint PCS Stock Beneficially Owned
in the aggregate by FT, DT and their respective Affiliates and
Associates would represent in the aggregate more than 33% of the
Voting Power represented by the Outstanding Sprint PCS Stock
(clauses (A), (B) and (C) being collectively referred to as the
"Subsequent Percentage Limitations"; the Initial Percentage
Limitations and the Subsequent Percentage Limitations, as the case
may be, also being referred to as the "Percentage Limitations"), or
(D) the Sprint Voting Securities Beneficially Owned in the aggregate
by FT and DT and their respective Affiliates and Associates would
exceed 80% of the Aggregate Foreign Ownership Limitation; or
(iii) any Sprint nonvoting equity securities, but not including any
"Derivative Security" (as defined in the Purchase Rights Agreement)
purchased by FT or DT from the Cable Partners under the Purchase
Rights Agreement so long as the acquisition of the shares acquired
as a result of such derivative instruments is not otherwise in
violation of this Agreement.
(b) In addition to any other restrictions contained herein or in the Joint
Venture Documents, the Parties agree that none of the Parties will cause any JV
Entity to, directly or indirectly, acquire, offer to acquire, or agree to
acquire, by purchase or otherwise, Beneficial Ownership of any equity securities
of Sprint.
Section 2.2. Exception to Purchase Restrictions.
(a) Subject to Section 2.4, if a Percentage Limitation Adjustment Event
shall occur, then the applicable Percentage Limitations shall be increased to
the extent necessary so that Sections 2.1(a)(i) and 2.1(a)(ii) do not prohibit
Transferee from acquiring Beneficial Ownership of additional Sprint Voting
Securities so long as each of the following conditions is satisfied: (i) the
Votes represented by the Sprint Voting Securities Beneficially Owned in the
aggregate by FT, DT and their respective Affiliates and Associates and any
Qualified Stock Purchasers are no greater than the Votes represented by the
Sprint Voting Securities Beneficially Owned by the Largest Other Holder, after
giving effect to any dilution to such holder resulting from the operation of the
Sprint Rights Plan, (ii) the Votes represented by the shares of Class A Common
Stock (to the extent representing a Number of Shares Issuable With Respect to
the Class A Equity Interest in the FON Group) and Sprint FON Stock Beneficially
Owned in the aggregate by FT, DT and their respective Affiliates and Associates
do not represent in the aggregate more than 33% of the Voting Power represented
by the Outstanding Sprint FON Stock, (iii) the Votes represented by the shares
of Class A Common Stock (to the extent representing a Number of Shares Issuable
With Respect to the Class A Equity Interest in the PCS Group) and Sprint PCS
Stock Beneficially Owned in the aggregate by FT, DT and their respective
Affiliates and Associates do not represent in the aggregate more than 33% of the
Voting Power represented by the Outstanding Sprint PCS Stock, and (iv) the
Sprint Voting Securities Beneficially Owned in the aggregate by FT and DT and
their respective Affiliates do not at any time exceed 80% of the Aggregate
Foreign Ownership Limitation.
(b) Subject to Section 2.4, if an acquisition by Transferee of Beneficial
Ownership of additional Sprint Voting Securities otherwise permitted by Section
2.1(a)(ii) or 2.2(a) is prohibited thereunder due to clause (D) of Section
2.1(a)(ii) or due to clause (iv) of Section 2.2(a), then Transferee may assign
to one or more non-Alien Qualified Stock Purchasers in accordance with Section
7.2 of the Amended and Restated Stockholders' Agreement its rights under Section
2.1(a)(ii) or 2.2(a) to purchase in the aggregate the number of shares of Sprint
Voting Securities which equals the number of shares of Sprint Voting Securities
the purchase of which is prohibited by clause (D) of Section 2.1(a)(ii) or
clause (iv) of Section 2.2(a), as the case may be.
Section 2.3. Effect of Action by Sprint; Inadvertent Action.
(a) Subject to Section 2.3(b), Transferee shall not be deemed in violation
of this Article 2 if the Beneficial Ownership of Sprint Voting Securities by FT,
DT and their respective Affiliates and Associates exceeds the applicable
Percentage Limitations (i) solely as a result of an acquisition of Sprint Voting
Securities by Sprint (including as a result of a redemption by Sprint of its
Sprint PCS Preferred Stock) that, by reducing the number of Outstanding Sprint
Voting Securities, increases the proportionate number of Sprint Voting
Securities Beneficially Owned by FT, DT and their respective Affiliates and
Associates, (ii) if FT, DT and their Affiliates and Associates are in compliance
with clauses (B) and (C) of Section 2.1(a)(i) (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 Transferee, FT or DT pursuant
to the Amended and Restated Stockholders' Agreement, or (B) market
purchases which are made solely in lieu of the exercise of equity purchase
rights by Transferee, FT or DT pursuant to the Amended and Restated
Stockholders' Agreement following the issuance of securities by Sprint, so
long as (1) either (I) Transferee, FT or DT, as the case may be, has
irrevocably waived its rights to exercise the equity purchase rights in
respect of which such market purchases are made in lieu thereof, or (II)
the time period for the exercise of such equity purchase rights has expired
without the exercise of such rights, and (2) following such market
purchases, the Percentage Ownership Interest of FT, DT and their respective
Affiliates and Associates does not exceed the Percentage Ownership Interest
of FT, DT and their respective Affiliates and Associates which would have
been in effect had FT, DT and their respective Affiliates exercised such
equity purchase rights.
Section 2.4. Sprint Rights Plan.
(a) Notwithstanding the provisions of Sections 2.1 and 2.2, Transferee
agrees that it will not, and will cause each of its Controlled Affiliates not
to, directly or indirectly, acquire, offer to acquire, or agree to acquire, by
purchase or otherwise, Beneficial Ownership of any Sprint Voting Securities if
such acquisition would result in Transferee, any of the Controlled Affiliates of
Transferee or FT or DT or any of their respective Affiliates being deemed an
Acquiring Person (as such term is defined in the Sprint Rights Plan) or result
in the occurrence of a Stock Acquisition Date, Distribution Date, Section
11(a)(ii) Event or Section 13 Event (as such terms are defined in the Sprint
Rights Plan).
(b) If the Sprint Board of Directors amends or waives the provisions of the
Sprint Rights Plan in such a manner to permit an Other Holder to acquire
Beneficial Ownership of Sprint Voting Securities having Votes in excess of the
applicable Percentage Limitations without such acquisition resulting in the
Other Holder being deemed an Acquiring Person or resulting in the occurrence of
a Stock Acquisition Date, Distribution Date, Section 11(a)(ii) Event or Section
13 Event or makes any other changes to the Sprint Rights Plan which would permit
any Other Holder to own Sprint Voting Securities having Votes in excess of the
applicable Percentage Limitations without triggering adverse consequences under
the Sprint Rights Plan to such Other Holder, then Sprint will amend or waive the
provisions of the Sprint Rights Plan so that the Sprint Rights Plan does not
impose any prohibition (including any prohibition on the ownership of Voting
Securities) on FT, DT and their respective Affiliates and Associates which is
more restrictive than the restrictions imposed on any Other Holder.
ARTICLE 3.
OTHER STANDSTILL PROVISIONS; QUORUM
Section 3.1. Standstill Covenants. Transferee agrees that it will not, and
it will cause each of its Controlled Affiliates not to, directly or indirectly,
alone or in concert with others (including with any Government Affiliate,
Related Company or Qualified Stock Purchaser), unless specifically requested in
writing by the Chairman of Sprint or by a resolution of a majority of the
directors of Sprint, take any of the actions set forth below, except to the
extent expressly permitted or provided for by the Amended Other Agreements and
the Joint Venture Documents:
(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, DT or Transferee 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, DT or Transferee to purchase equity interests
owned by Sprint in the JV Entities; or
(iv) any "solicitation" of "proxies" (as such terms are used in the proxy
rules of the SEC but without regard to the exclusion set forth in
Section 14a-1(l)(2)(iv) from the definition of "solicitation") with
respect to Sprint or any of its Affiliates or any action resulting in
such Person becoming a "participant" in any "election contest" (as
such terms are used in the proxy rules of the SEC) with respect to
Sprint or any of its Affiliates;
(b) propose any matter for submission to a vote of stockholders of Sprint
or any of its Affiliates; provided that nothing in this Section 3.1(b) shall
restrict the manner in which the members of the Board of Directors of Sprint
elected by the holders of Class A Stock may (i) vote on any matter submitted to
such Board, or (ii) participate in deliberations or discussions of such Board
(including making suggestions and raising issues to the Board, so long as such
actions do not otherwise violate any other provision of this Section 3.1 or
Section 3.2) in their capacity as members of such Board and in no other
capacity, including any capacity such persons serving as directors otherwise may
have as a director, officer, employee, agent or representative of any other
Person, including any holder of Class A Stock;
(c) form, join or participate in a Group with respect to any Sprint Voting
Securities (other than any Group whose members consist solely of FT, DT,
Transferee, any of their respective Affiliates and Associates and any Qualified
Subsidiaries);
(d) grant any proxy with respect to any Sprint Voting Securities to any
Person not designated by Sprint, except for proxies granted to FT or DT or
Qualified Subsidiaries or to individuals who are officers, employees or regular
agents or advisors of Transferee, FT or DT or Qualified Subsidiaries who have
received specific instructions from FT, DT or Qualified Subsidiaries, as the
case may be, as to the voting of such Sprint Voting Securities with respect to
the matter or matters for which the proxy is granted;
(e) deposit any Sprint Voting Securities in a voting trust or subject any
Sprint Voting Securities to any arrangement or agreement with respect to the
voting of such Sprint Voting Securities or other agreement having similar
effect, except for agreements solely among FT, DT, Transferee and any other
Qualified Subsidiary;
(f) execute any written stockholder consent with respect to Sprint, except
for written consents executed by such Persons as holders of the Class A Stock in
connection with (i) the election of Class A Directors (as defined in the
Articles), (ii) the approval or disapproval of a Subject Event, Major Issuance
or Major Competitor Transaction (each as defined in the Articles) during the
period in which the holders of the Class A Stock are entitled to exercise
disapproval rights with respect to such matter, (iii) any vote by the holders of
Class A Common Stock, Series 3 FON Stock, or Series 3 PCS Stock with respect to
which holders of each such class or series of stock is entitled to vote
separately as a class, or (iv) any vote by the holders of the Class A Stock with
respect to which such holders are entitled to vote together as a single class;
(g) take any other action to seek to affect the control of the management
or Board of Directors of Sprint or any of its Affiliates; provided that nothing
in this Section 3.1(g) shall restrict the manner in which the members of the
Board of Directors of Sprint elected by the holders of Class A Stock may (i)
vote on any matter submitted to such Board, or (ii) participate in deliberations
or discussions of such Board (including making suggestions and raising issues to
the Board, so long as such actions do not otherwise violate any other provision
of this Section 3.1 or Section 3.2) in their capacity as members of such Board
and in no other capacity, including any capacity such persons serving as
directors otherwise may have as a director, officer, employee, agent or
representative of any other Person, including any holder of Class A Stock;
(h) enter into any discussions, negotiations, arrangements or
understandings with any Person (including any Government Affiliate, Related
Company or Qualified Stock Purchaser) other than FT, DT, their Affiliates,
Associates and their respective directors, officers, employees, agents or
advisors with respect to any of the foregoing, or advise, assist, encourage or
seek to persuade others to take any action with respect to any of the foregoing;
(i) disclose to any Person (including any Government Affiliate, Related
Company or Qualified Stock Purchaser) other than FT, DT, their Affiliates,
Associates and their respective directors, officers, employees, agents or
advisors any intention, plan or arrangement inconsistent with the foregoing or
with the restrictions on transfer set forth in Article II of the Stockholders'
Agreement or form any such intention which would result in FT, DT or any of
their respective Affiliates or Associates being required to make any such
disclosure in any filing with a Governmental Authority or being required by
Applicable Law to make a public announcement with respect thereto; or
(j) request Sprint or any of its Affiliates, directors, officers,
employees, representatives, advisors or agents, directly or indirectly, to amend
or waive in any material respect this Agreement (including this Section 3.1(j))
or the articles of incorporation or the bylaws of Sprint or any of its
Affiliates.
Section 3.2. Press Releases, Etc. by Transferee.
(a) Subject to Section 3.2(b), Transferee may issue such press releases and
make such other public communications to the financial community and to its
stockholders and such other public statements made in the ordinary course
relating to its investment in Sprint, in each case as it reasonably deems
appropriate and customary. Prior to making any such press release or other
communication, Transferee will use reasonable efforts to consult with Sprint in
good faith regarding the form and content of any such communication, and
Transferee will use reasonable efforts to coordinate any such communication with
any decisions reached by Sprint with respect to disclosures relating to such
matters.
(b) Notwithstanding the provisions of Section 3.2(a), unless required by
Applicable Law, neither Transferee, nor any of its Controlled Affiliates, may
make any press release, public announcement or other communication with respect
to any of the matters described in Sections 3.1(a), 3.1(b), 3.1(c), 3.1(g),
3.1(h) or 3.1(j) without the prior written consent of the Chairman of Sprint or
by a resolution of a majority of the directors of Sprint. Nothing in this
Section 3.2 shall permit Transferee or its Controlled Affiliates to take any
action which would otherwise violate any provision contained in Section 3.1.
Section 3.3. Voting of Sprint Voting Securities. Except as set forth in
Sections 3.1(d), 3.1(e) and 3.1(f), nothing in Section 3.1 shall restrict the
manner in which Transferee may vote its Sprint Voting Securities.
Section 3.4. Quorum. Transferee shall use reasonable efforts to ensure that
it shall be present and shall use reasonable efforts to cause its Controlled
Affiliates owning Sprint Voting Securities to be present, in person or by proxy,
at all meetings of stockholders of Sprint so that all Sprint Voting Securities
Beneficially Owned by Transferee and its Controlled Affiliates shall be counted
for purposes of determining the presence of a quorum at such meeting.
Section 3.5. Notice of Proposals Regarding Acquisition Transactions.
Transferee agrees that it will notify Sprint promptly if any inquiries or
proposals which Transferee reasonably believes are of substance are received by,
any information is exchanged with respect to, or any negotiations or substantive
discussions are initiated or continued with, Transferee or any of its Controlled
Affiliates regarding any Acquisition Proposal involving Sprint or any purchase
of any of the shares of capital stock of Sprint Beneficially Owned by Transferee
or any of its Controlled Affiliates pursuant to a tender offer or exchange
offer.
ARTICLE 4.
MISCELLANEOUS
Section 4.1. Termination. The provisions of this Agreement shall terminate
if Sprint proceeds with a transaction involving a Change of Control following
the process described in Section 4.1 of the Amended and Restated Stockholders'
Agreement. Any termination of this Agreement as provided herein shall be without
prejudice to the rights of any Party arising out of the breach by any other
Party of any provision of this Agreement.
Section 4.2. Notices. All notices and other communications required or
permitted by this Agreement shall be made in writing in the English language and
any such notice or communication shall be deemed delivered when delivered in
person, transmitted by telex or telecopier, or seven days after it has been sent
by air mail, as follows:
Transferee: NAB Nordamerika Beteiligungs Holding GmbH
c/o Deutsche Telekom AG
Friedrich-Ebert-Allee 140
53113 Bonn
Germany
Attn: Mr. Heinz Klesing, Managing Director
Tel: 49-228-181-38120
Fax: 49-228-181-8750
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: (404) 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 4.2 of any change in their respective addresses. A notice of change of
address shall not be deemed to have been given until received by the addressee.
Communications by telex or telecopier also shall be sent concurrently by mail,
but shall in any event be effective as stated above.
Section 4.3. Assignment. No Party will assign this Agreement or any rights,
interests or obligations hereunder, or delegate performance of any of its
obligations hereunder, without the prior written consent of each other Party.
Section 4.4. Entire Agreement. This Agreement embodies the entire agreement
and understanding of the Parties in respect of the subject matter contained
herein, provided that this provision shall not abrogate any other written
agreement between the Parties executed simultaneously with this Agreement. This
Agreement supersedes all prior agreements and understandings between the Parties
with respect to such subject matter.
Section 4.5. Waiver, Amendment, etc. This Agreement may not be amended or
supplemented, and no waivers of or consents to departures from the provisions
hereof shall be effective, unless set forth in a writing signed by, and
delivered to, all the Parties. No failure or delay of any Party in exercising
any power or right under this Agreement will operate as a waiver thereof, nor
will any single or partial exercise of any right or power, or any abandonment or
discontinuance of steps to enforce such right or power, preclude any other or
further exercise thereof or the exercise of any other right or power.
Section 4.6. Binding Agreement; No Third Party Beneficiaries. This
Agreement will be binding upon and inure to the benefit of the Parties and their
successors and permitted assigns. Nothing expressed or implied herein is
intended or will be construed to confer upon or to give to any third party any
rights or remedies by virtue hereof.
Section 4.7. Governing Law; Dispute Resolution; Equitable Relief.
(a) THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK (REGARDLESS OF THE LAWS THAT MIGHT OTHERWISE
GOVERN UNDER APPLICABLE PRINCIPLES OF CONFLICTS OF LAW).
(b) EACH PARTY IRREVOCABLY CONSENTS AND AGREES THAT ANY LEGAL ACTION, SUIT
OR PROCEEDING AGAINST IT WITH RESPECT TO ITS 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) TRANSFEREE HEREBY IRREVOCABLY DESIGNATES CT CORPORATION SYSTEM (IN SUCH
CAPACITY, THE "PROCESS AGENT"), WITH AN OFFICE AT 111 EIGHTH AVENUE, NEW YORK,
NEW YORK 10011, AS ITS DESIGNEE, APPOINTEE AND AGENT TO RECEIVE, FOR AND ON ITS
BEHALF SERVICE OF PROCESS IN SUCH JURISDICTION IN ANY LEGAL ACTION OR
PROCEEDINGS WITH RESPECT TO THIS AGREEMENT, AND SUCH SERVICE SHALL BE DEEMED
COMPLETE UPON DELIVERY THEREOF TO THE PROCESS AGENT, PROVIDED THAT IN THE CASE
OF ANY SUCH SERVICE UPON THE PROCESS AGENT, THE PARTY EFFECTING SUCH SERVICE
SHALL ALSO DELIVER A COPY THEREOF TO TRANSFEREE IN THE MANNER PROVIDED IN
SECTION 4.2. TRANSFEREE SHALL TAKE ALL SUCH ACTION AS MAY BE NECESSARY TO
CONTINUE SAID APPOINTMENT IN FULL FORCE AND EFFECT OR TO APPOINT ANOTHER AGENT
SO THAT TRANSFEREE WILL AT ALL TIMES HAVE AN AGENT FOR SERVICE OF PROCESS FOR
THE ABOVE PURPOSES IN NEW YORK, NEW YORK. IN THE EVENT OF THE TRANSFER OF ALL OR
SUBSTANTIALLY ALL OF THE ASSETS AND BUSINESS OF THE PROCESS AGENT TO ANY OTHER
CORPORATION BY CONSOLIDATION, MERGER, SALE OF ASSETS OR OTHERWISE, SUCH OTHER
CORPORATION SHALL BE SUBSTITUTED HEREUNDER FOR THE PROCESS AGENT WITH THE SAME
EFFECT AS IF NAMED HEREIN IN PLACE OF CT CORPORATION SYSTEM. TRANSFEREE FURTHER
IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS OUT OF ANY OF THE AFOREMENTIONED
COURTS IN ANY SUCH ACTION OR PROCEEDING BY THE MAILING OF COPIES THEREOF BY
REGISTERED AIRMAIL, POSTAGE PREPAID, TO SUCH PARTY AT ITS ADDRESS SET FORTH IN
THIS AGREEMENT, SUCH SERVICE OF PROCESS TO BE EFFECTIVE UPON ACKNOWLEDGMENT OF
RECEIPT OF SUCH REGISTERED MAIL. NOTHING HEREIN SHALL AFFECT THE RIGHT OF ANY
PARTY TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY APPLICABLE LAW.
TRANSFEREE EXPRESSLY ACKNOWLEDGES THAT THE FOREGOING WAIVER IS INTENDED TO BE
IRREVOCABLE UNDER THE LAWS OF THE STATE OF NEW YORK AND OF THE UNITED STATES OF
AMERICA.
(d) EACH PARTY AGREES THAT MONEY DAMAGES WOULD NOT BE A SUFFICIENT REMEDY
FOR THE OTHER PARTIES FOR ANY BREACH OF THIS AGREEMENT BY IT, AND THAT IN
ADDITION TO ALL OTHER REMEDIES THE OTHER PARTIES MAY HAVE, THEY SHALL BE
ENTITLED TO SPECIFIC PERFORMANCE AND TO INJUNCTIVE OR OTHER EQUITABLE RELIEF AS
A REMEDY FOR ANY SUCH BREACH TO THE EXTENT PERMITTED BY APPLICABLE LAW. EACH
PARTY AGREES NOT TO OPPOSE THE GRANTING OF SUCH RELIEF IN THE EVENT A COURT
DETERMINES THAT SUCH BREACH HAS OCCURRED, AND AGREES TO WAIVE ANY REQUIREMENT
FOR THE SECURING OR POSTING OF ANY BOND IN CONNECTION WITH SUCH REMEDY.
Section 4.8. Severability. The invalidity or unenforceability of any
provision hereof in any jurisdiction will not affect the validity or
enforceability of the remainder hereof in that jurisdiction or the validity or
enforceability of this Agreement, including that provision, in any other
jurisdiction. To the extent permitted by Applicable Law, each Party waives any
provision of Applicable Law that renders any provision hereof prohibited or
unenforceable in any respect. If any provision of this Agreement is held to be
unenforceable for any reason, to the extent permitted by Applicable Law it shall
be adjusted rather than voided, if possible, in order to achieve the intent of
the Parties to the extent possible.
Section 4.9. Counterparts. This Agreement may be executed in one or more
counterparts each of which when so executed and delivered will be deemed an
original but all of which will constitute one and the same Agreement.
Section 4.10. Waiver of Immunity. Transferee agrees that, to the extent
that it or any of its property is or becomes entitled at any time to any
immunity on the grounds of sovereignty or otherwise based upon its status as an
agency or instrumentality of government from any legal action, suit or
proceeding or from setoff or counterclaim relating to this Agreement from the
jurisdiction of any competent court, from service of process, from attachment
prior to judgment, from attachment in aid of execution of a judgment, from
execution pursuant to a judgment or arbitral award or from any other legal
process in any jurisdiction, it, for itself and its property expressly,
irrevocably and unconditionally waives, and agrees not to plead or claim, any
such immunity with respect to such matters arising with respect to this
Agreement or the subject matter hereof (including any obligation for the payment
of money). Transferee agrees that the waiver in this provision is irrevocable
and is not subject to withdrawal in any jurisdiction or under any statute,
including the Foreign Sovereign Immunities Act, 28 U.S.C. ss. 1602, et seq. The
foregoing waiver shall constitute a present waiver of immunity at any time any
action is initiated against Transferee with respect to this Agreement.
Section 4.11. Remedies. In addition to any other remedies which may be
available to Sprint (including any remedies which Sprint may have at law or in
equity):
(a) Transferee agrees that Sprint shall have no obligation to honor
transfers of Sprint Voting Securities or other equity interests in Sprint to FT,
DT or any of their respective Affiliates or Associates which would cause any of
FT, DT and their respective Affiliates or Associates to Beneficially Own Sprint
Voting Securities or other equity interests in Sprint in violation of this
Agreement, any such transfers shall be void and of no effect, and Sprint shall
be entitled to instruct any transfer agent or agents for the equity interests in
Sprint to refuse to honor such transfers; and
(b) Transferee acknowledges the provisions set forth in ARTICLE SIXTH,
Section 2.5 of the Articles, ARTICLE SIXTH, Section 8.5(b) of the Articles, and
Section 3.5 and Article VIII of the Amended and Restated Stockholders' Agreement
relating to the consequences of a breach of certain provisions of this Agreement
or any Qualified Subsidiary Standstill Agreement or to the consequences of
certain actions taken by a Government Affiliate, Qualified Stock Purchaser,
Strategic Investor or Related Company.
<PAGE>
IN WITNESS WHEREOF, Sprint and Transferee have caused their respective duly
authorized officers to execute this Qualified Subsidiary Standstill Agreement as
of the day and year first above written.
SPRINT CORPORATION
By:_____________________________
Name:
Title:
NAB NORDAMERIKA BETEILIGUNGS HOLDING GMBH
By:_____________________________
Name: Dr. Joachim Peckert
Title: Managing Director
By:_____________________________
Name: Mr. Heinz Klesing
Title: Managing Director
EXHIBIT 3
---------
EXECUTION COPY
QUALIFIED SUBSIDIARY CONFIDENTIALITY AGREEMENT
THIS AGREEMENT (this "Agreement") is made and entered into effective
December 29th, 1999, between Sprint Corporation, a Kansas corporation
("Sprint"), and NAB Nordamerika Beteiligungs Holding GmbH, a limited liability
company organized under the laws of Germany ("Qualified Subsidiary") (each a
"Party").
R E C I T A L S
WHEREAS, Sprint, France Telecom, a societe anonyme organized under the laws
of France ("FT"), and Deutsche Telekom AG, an Aktiengesellschaft organized under
the laws of Germany ("DT"), have entered into an Investment Agreement dated as
of July 31, 1995 (as it may be amended or modified from time to time, the
"Investment Agreement");
WHEREAS, in connection with the transactions contemplated by the Investment
Agreement, Sprint and DT entered into an Investor Confidentiality Agreement
dated as of January 31, 1996 (the "DT Original Investor Confidentiality
Agreement");
WHEREAS, Sprint, FT and DT entered into a Master Restructuring and
Investment Agreement dated as of May 26, 1998 (as it may be amended or modified
from time to time, 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 and DT
entered into an Amended and Restated Investor Confidentiality Agreement (the "DT
Amended and Restated Investor Confidentiality Agreement");
WHEREAS, Section 2.2 of the Amended and Restated Stockholders' Agreement
(as defined in the FT/DT Restructuring Agreement), provides that DT may, under
certain circumstances and in accordance with the terms of Section 2.2 of the
Amended and Restated Stockholders' Agreement, transfer shares of Class A Stock
to one or more Qualified Subsidiaries;
WHEREAS, Qualified Subsidiary is a Qualified Subsidiary to which DT has
indicated that it intends to transfer Sprint Voting Securities;
WHEREAS, DT is required under Section 3.1 of the DT Amended and Restated
Investor Confidentiality Agreement to cause each Person which, as a result of
the acquisition of Beneficial Ownership of any voting securities of Sprint,
would become a Qualified Subsidiary of DT to execute a Qualified Subsidiary
Confidentiality Agreement; and
WHEREAS, this Agreement is the Qualified Subsidiary Confidentiality
Agreement which Qualified Subsidiary is executing in compliance with Section 3.1
of the DT Amended and Restated Investor Confidentiality Agreement.
NOW, THEREFORE, for good and valuable consideration, the Parties agree as
follows:
ARTICLE 1.
DEFINITIONS
-----------
Capitalized terms used in this Agreement and not defined herein shall have
the respective meanings specified in the Amended and Restated Stockholders'
Agreement. In addition, the following capitalized terms shall have the following
meanings:
"Class A Stock" means the Class A Common Stock and the Series 3 PCS Stock
(each term as defined in the Articles), and after the Recapitalization (as
defined in the FT/DT Restructuring Agreement), the Series 3 FON Stock (as
defined in the FT/DT Restructuring Agreement).
"Class A Holders" has the meaning set forth in the Articles.
"Disclosing Party" means Sprint or any Affiliate of Sprint which discloses
Proprietary Information.
"Non-Class A Common Stock" has the meaning set forth in the Articles.
"Proprietary Information" means, subject to Section 2.1(g) herein:
(i) all confidential or proprietary information of Sprint or any of
its Affiliates, including business plans and strategies; and
(ii) any portion of any notes, analyses, compilations, studies,
interpretations or other documents prepared by any Receiving
Party, to the extent the same contain, reflect, are derived from,
or are based upon, any of the information described in clause (i)
(such portions of such notes, analyses, etc. are referred to
herein as "Derivative Information").
The Disclosing Party will use its reasonable efforts to follow its customary
practices regarding the marking of tangible Proprietary Information as
"confidential," "proprietary," or other similar designation, but the failure to
mark or otherwise designate any information in the foregoing clause (i) as
confidential or proprietary shall not affect its status as Proprietary
Information. The Parties agree that the designation in writing by the Disclosing
Party that information is confidential or proprietary shall create a presumption
that such information is confidential or proprietary to the extent such
designation is reasonable.
"Receiving Party" means Qualified Subsidiary or any of its Subsidiaries or
Representatives (as defined in Section 2.1(b)) which receives Proprietary
Information.
"Subsidiary" means, with respect to any Person (the "Parent"), any other
Person in which the Parent, one or more direct or indirect Subsidiaries of the
Parent, or the Parent and one or more of its direct or indirect Subsidiaries (i)
have the ability, through ownership of securities individually or as a group,
ordinarily, in the absence of contingencies, to elect a majority of the
directors (or such individuals performing similar functions) of such other
Person, and (ii) own more than 50% of the equity interests.
ARTICLE 2.
PROPRIETARY INFORMATION
-----------------------
Section 2.1. Disclosure and Use
(a) Except as provided in Section 2.1(b), (d) or (f), Qualified Subsidiary
agrees that until five years after the later of (x) the first to occur of the
date of conversion of all of the Class A Stock into Non-Class A Common Stock and
the date on which neither Qualified Subsidiary nor any of its Affiliates
Beneficially Owns any voting securities of Sprint, and (y) the date on which the
Class A Holders no longer have a representative on the Sprint Board of
Directors:
(i)all Proprietary Information communicated on or after the date
of this Agreement to it or to any other Receiving Party in
connection with, or as a result of, the Investment Agreement,
the FT/DT Restructuring Agreement, any of the Amended Other
Agreements (as defined in the FT/DT Restructuring Agreement),
the Articles or the Bylaws or the transactions contemplated
thereby (including the investment) or otherwise received by
Qualified Subsidiary in its capacity as an investor in Sprint
or by any Representative in his or her capacity as a member of
the Sprint Board of Directors, shall be held in strict
confidence;
(ii)it will not, and it will not permit any other Receiving Party
to, disclose such Proprietary Information to any third party;
(iii)it will, and will cause each Receiving Party to, use such
Proprietary Information only to implement the provisions of,
and exercise its rights under, the Investment Agreement, the
FT/DT Restructuring Agreement, the Amended Other Agreements,
the Articles and the Bylaws (including the internal monitoring
by Qualified Subsidiary of its investment in Sprint) and for
no other purpose; and
(iv) it will cause each Representative to use such Proprietary
Information only to perform his or her functions as a member
of the Sprint Board of Directors or to otherwise implement the
provisions of, and exercise its rights under, the Investment
Agreement, the FT/DT Restructuring Agreement, the Amended
Other Agreements, the Articles and the Bylaws (including the
internal monitoring by Qualified Subsidiary of its investment
in Sprint) and for no other purpose.
(b) Qualified Subsidiary may disclose Proprietary Information to its
Subsidiaries or its or its Subsidiaries' directors, officers, employees, agents
and advisors (collectively, "Representatives") who need to know such information
to perform their functions as members of the Sprint Board of Directors or to
implement the provisions of, or exercise its rights under, the Investment
Agreement, the FT/DT Restructuring Agreement, the Amended Other Agreements, the
Articles and the Bylaws (including the internal monitoring by Qualified
Subsidiary of its investment in Sprint), provided that before disclosing any
Proprietary Information to any Representative, the Receiving Party shall notify
such Representative of his or her obligation to comply with this Agreement.
Qualified Subsidiary shall be responsible for any breach of this Agreement by
any Subsidiary or Representative and Qualified Subsidiary agrees, at its sole
expense, to use its reasonable efforts (including court proceedings) to restrain
its Subsidiaries and Representatives from any prohibited or unauthorized
disclosure or use of the Proprietary Information. Qualified Subsidiary shall
notify Sprint as soon as possible if it has knowledge of a breach of this
Agreement in any material respect.
(c) Proprietary Information shall not be reproduced by Qualified Subsidiary
or any other Receiving Party in any form except to the extent reasonably
necessary to permit Qualified Subsidiary to implement the provisions of, and
exercise its rights under, the Investment Agreement, the FT/DT Restructuring
Agreement, the Amended Other Agreements, the Articles and the Bylaws (including
the internal monitoring by Qualified Subsidiary of its investment in Sprint) or
to permit any other Representatives to perform their functions as members of the
Sprint Board of Directors.
(d) This Section 2.1 shall not apply to any Proprietary Information which
the Receiving Party can establish to have:
(i) been disclosed by the Receiving Party with Sprint's prior written
consent;
(ii) been in the possession of the Receiving Party from a source other
than the Disclosing Party or FT, DT or any of their Subsidiaries
or representatives prior to the date of this Agreement;
(iii) become generally available to the public other than as a result
of disclosure by the Receiving Party or any Subsidiary or
Representative of Qualified Subsidiary, or DT or any of its
Subsidiaries or Representatives;
(iv) been independently developed by the Receiving Party outside the
scope of the Investment Agreement, the FT/DT Restructuring
Agreement and the Amended Other Agreements through Persons
(including any Representatives) who have not had knowledge of
such Proprietary Information;
(v) been rightfully obtained by the Receiving Party from a third
party (other than FT, DT or any of their Subsidiaries or
Representatives) without knowledge that such third party is
obligated to protect its confidentiality, provided that such
Receiving Party has used all commercially reasonable efforts to
determine whether such third party has any such obligation; or
(vi) been obligated to be produced or disclosed by Applicable Law or
any Governmental Authority, provided that such production or
disclosure shall have been made in accordance with Section 2.2.
(e) Subject to the right of a Receiving Party to reproduce Proprietary
Information in strict compliance with Section 2.1(c), no license or right to any
Receiving Party under any trademark, patent, copyright, invention, mask work
protection right or any other intellectual property right is either granted or
implied by this Agreement or by disclosure of Proprietary Information to such
Receiving Party.
(f) Qualified Subsidiary may disclose Proprietary Information to FT, DT and
representatives of FT and DT as may be reasonably necessary for Qualified
Subsidiary, FT, and DT to implement the provisions of, and exercise their rights
under, the Investment Agreement, the FT/DT Restructuring Agreement, the Amended
Other Agreements, the Articles and the Bylaws, provided that such disclosures
may only be made under this Section 2.1(f) at such time as FT and DT are subject
to a duty of confidentiality to Sprint substantially the same as the duty
imposed on Qualified Subsidiary by this Agreement, and provided, further, that
Qualified Subsidiary notifies FT and DT and such representatives that the
information being disclosed is Proprietary Information.
(g) Notwithstanding anything in this Article 2 to the contrary, any
"Proprietary Information" (as such term is defined in the Amended and Restated
Investor Confidentiality Agreements dated as of November 23, 1998 between Sprint
and DT and between Sprint and FT, respectively) received by a Receiving Party
from FT or DT or any Subsidiary or representative of FT or DT shall be deemed
Proprietary Information for all purposes of this Agreement and shall be subject
to the provisions of this Agreement as if, and to the same extent as, such
Proprietary Information were communicated to a Receiving Party directly by
Sprint.
Section 2.2. Legally Required Disclosure.
(a) If the Receiving Party is requested by any Governmental Authority or
required by Applicable Law to disclose any Proprietary Information, Qualified
Subsidiary will provide Sprint with written notice of such request or
requirement as soon as possible and prior to such disclosure. Sprint may then
either seek appropriate protective relief from all or part of such request or
requirement or waive the Receiving Party's compliance with this Agreement with
respect to all or part of such request or requirement.
(b) Qualified Subsidiary agrees that it will use all commercially
reasonable efforts to cooperate with Sprint in attempting to obtain any
protective relief which Sprint chooses to seek pursuant to this Section 2.2. In
the absence of such relief, if, in the written opinion of counsel for Qualified
Subsidiary, the Receiving Party is legally compelled to disclose any Proprietary
Information, then the Receiving Party may disclose only that portion of the
Proprietary Information which counsel to Qualified Subsidiary advises in writing
that such Receiving Party is compelled to disclose; provided that Qualified
Subsidiary shall exercise all commercially reasonable efforts to preserve the
confidentiality of the Proprietary Information, including cooperating with
Sprint to obtain an appropriate protective order or other reliable assurance
that confidential treatment will be accorded the Proprietary Information.
Section 2.3. Ownership.
(a) Unless otherwise specified in writing, all Proprietary Information,
other than Derivative Information, shall remain the property of Sprint, and all
documents or other tangible media delivered to the Receiving Party that embody
such Proprietary Information shall be, at the option of Sprint, either promptly
returned to Sprint or destroyed, except as otherwise may be required from time
to time by Applicable Law (in which case the use and disclosure of such
Proprietary Information shall continue to be subject to this Agreement) upon the
date on which the Receiving Party's need for it has expired or, if earlier, the
later of (i) the first to occur of the date of conversion of all of the Class A
Stock into Non-Class A Common Stock and the date on which neither Qualified
Subsidiary nor any of its Affiliates Beneficially Owns any voting securities of
Sprint, and (ii) the date on which the Class A Holders no longer have a
representative on the Sprint Board of Directors.
(b) Any Derivative Information shall be, at the option of Qualified
Subsidiary, either promptly returned to Sprint or destroyed, except as otherwise
may be required from time to time by Applicable Law (in which case the use and
disclosure of such Proprietary Information shall continue to be subject to this
Agreement) upon the date on which the Receiving Party's need for it has expired
or, if earlier, the later of (i) the first to occur of the date of conversion of
all of the Class A Stock into Non-Class A Common Stock and the date on which
neither Qualified Subsidiary nor any of its Affiliates Beneficially Owns any
voting securities of Sprint, and (ii) the date on which the Class A Holders no
longer have a representative on the Sprint Board of Directors.
(c) If destroyed, all copies shall be destroyed and upon the written
request of Sprint, the Receiving Party shall provide to Sprint written
certification of such destruction. The destruction or return of Proprietary
Information shall not relieve any Receiving Party of its obligation to treat
such Proprietary Information in the manner required by this Agreement.
Section 2.4. No Representation or Warranty. Qualified Subsidiary
acknowledges that, except as expressly provided in the Investment Agreement, the
FT/DT Restructuring Agreement or any Amended Other Agreement, no warranties,
indemnities, guarantees or representations, express or implied, are made with
respect to the use, usefulness, validity, noninfringement, accuracy or
completeness of any Proprietary Information. No Disclosing Party or any
representative of a Disclosing Party shall have any liability to any Receiving
Party relating to or resulting from the use of the Proprietary Information or
any errors therein or omissions therefrom.
ARTICLE 3.
MISCELLANEOUS
-------------
Section 3.1. Notices. All notices and other communications required or
permitted by this Agreement shall be made in accordance with Section 7.7 of the
FT/DT Restructuring Agreement and, in the case of notices and communications to
the Qualified Subsidiary, to the address specified below.
Qualified Subsidiary: NAB Nordamerika Beteiligungs Holding GmbH
c/o Deutsche Telekom AG
Friedrich-Ebert-Allee 140
53113 Bonn
Germany
Attn: Mr. Heinz Klesing, Managing Director
Tel: 49-228-181-38120
Fax: 49-228-181-8750
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: (404) 225-3999
Section 3.2. Headings. The headings of the Sections and Articles of this
Agreement 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.
Section 3.3. Assignment. Neither 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 the other Party.
Section 3.4. Entire Agreement. This Agreement embodies the entire agreement
and understanding of the Parties in respect of the subject matter contained
herein, but this provision shall not abrogate or derogate 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 3.5. Amendment, Waiver, 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, each of 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 3.6. 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 3.7. 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) QUALIFIED SUBSIDIARY HEREBY IRREVOCABLY DESIGNATES CT CORPORATION
SYSTEM (IN SUCH CAPACITY, THE "PROCESS AGENT"), WITH AN OFFICE AT 111 EIGHTH
AVENUE, NEW YORK, NEW YORK 10011, 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 QUALIFIED SUBSIDIARY IN THE
MANNER PROVIDED IN SECTION 3.1. QUALIFIED SUBSIDIARY 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 QUALIFIED SUBSIDIARY 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. QUALIFIED SUBSIDIARY 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. QUALIFIED SUBSIDIARY 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 PARTY FOR ANY BREACH OF THIS AGREEMENT BY IT, AND THAT IN ADDITION
TO ALL OTHER REMEDIES THE OTHER PARTY MAY HAVE, IT 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 3.8. 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, it shall be adjusted to the extent permitted by
Applicable Law rather than voided, if possible, in order to achieve the intent
of the Parties to the extent possible.
Section 3.9. 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 3.10. Waiver of Immunity. Qualified Subsidiary 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, 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). Qualified Subsidiary 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 Qualified Subsidiary with respect to this
Agreement.
<PAGE>
INTENDING TO BE LEGALLY BOUND, the Parties have signed this Qualified
Subsidiary Confidentiality Agreement as of the date first above written.
SPRINT CORPORATION
By:________________________________
Name:
Title:
NAB NORDAMERIKA BETEILIGUNGS HOLDING GMBH
By:________________________________
Name: Dr. Joachim Peckert
Title: Managing Director
By:________________________________
Name: Mr. Heinz Klesing
Title: Managing Director
EXHIBIT 4
---------
EXECUTION COPY
ASSUMPTION AGREEMENT OF
NAB NORDAMERIKA BETEILIGUNGS HOLDING GMBH
Reference is hereby made to the Coordination Agreement, dated as of July
31, 1995 (as it may be amended from time to time, the "Coordination Agreement"),
between France Telecom, a societe anonyme organized under the laws of France
("FT"), and Deutsche Telekom AG, an Aktiengesellschaft organized under the laws
of Germany ("DT"). Capitalized terms used but not defined herein shall have the
meanings assigned to such terms in the Coordination Agreement.
1. The undersigned, NAB Nordamerika Beteiligungs Holding GmbH, a limited
liability company organized under the laws of Germany and a wholly-owned
subsidiary of DT, is acquiring Class A Stock from DT on the date hereof.
Pursuant to Section 9.7 of the Coordination Agreement, for good and valuable
consideration, the undersigned hereby expressly confirms and agrees for the
benefit of FT to be bound by the terms and conditions of the Coordination
Agreement, the Amended and Restated Stockholders' Agreement, dated as of
November 23, 1998 (as amended from time to time, the "Stockholders' Agreement"),
between and among FT, DT and Sprint Corporation, a Kansas corporation
("Sprint"), the Agreement, dated as of November 23, 1998 relating to the payment
of dividends and withholding of taxes (as amended from time to time, the "Tax
Matters Agreement"), between and among FT, DT and Sprint, the Qualified
Subsidiary Standstill Agreement (as amended from time to time, the "Qualified
Subsidiary Standstill Agreement"), to be entered into by the undersigned and
Sprint on the date hereof, and the Amended and Restated Registration Rights
Agreement, dated as of November 23, 1998 (as amended from time to time, the
"Registration Rights Agreement"), between and among FT, DT and Sprint, and upon
the consummation of the undersigned's acquisition of Class A Stock, to perform,
observe and assume each and every one of the covenants, rights, promises,
agreements, terms, conditions, obligations and duties of DT under the
Coordination Agreement, the Stockholders' Agreement, the Tax Matters Agreement,
and the Registration Rights Agreement, and to perform and observe each and every
one of its covenants, rights, promises agreements, terms, conditions,
obligations and duties under the Qualified Subsidiary Standstill Agreement.
2. Nothing in this Assumption Agreement shall relieve DT of any of its
obligations under the Coordination Agreement, the Stockholders' Agreement, the
Tax Matters Agreement, the Registration Rights Agreement, and the Amended and
Restated Standstill Agreement, dated as of November 23, 1998 (as amended from
time to time), between and among FT, DT and Sprint, and DT shall remain liable
for the performance by the undersigned as a party to the Coordination Agreement,
the Stockholders' Agreement, the Registration Rights Agreement, the Tax Matters
Agreement and the Qualified Subsidiary Standstill Agreement.
<PAGE>
3. The undersigned represents and warrants to FT (a) that it has entered
into a Qualified Subsidiary Assumption Agreement, Qualified Subsidiary Tax
Matters Assumption Agreement, Qualified Subsidiary Confidentiality Agreement,
and a Qualified Subsidiary Standstill Agreement; (b) that DT owns and holds
directly 100% of the undersigned's equity interests; and (c) that it is a
Qualified Subsidiary.
<PAGE>
IN WITNESS WHEREOF, the undersigned has duly executed this Assumption
Agreement of NAB Nordamerika Beleiligungs Holding GmbH as of this 29th day of
December, 1999.
NAB NORDAMERIKA BETEILIGUNGS HOLDING GMBH
By:_____________________________
Name: Dr. Joachim Peckert
Title: Managing Director
By:_______________________________
Name: Mr. Heinz Klesing
Title: Managing Director
EXHIBIT 5
---------
EXECUTION COPY
TRANSFER AGREEMENT
TRANSFER AGREEMENT (the "Agreement"), dated December 29, 1999, by and
between Deutsche Telekom AG, an Akteingesellschaft, organized under the laws of
Germany ("DT"), NAB Nordamerika Beteiligungs Holding GmbH, a limited liability
company organized under the laws of Germany ("NAB"). Capitalized terms used but
not defined herein shall have the meanings assigned to such terms in the
Stockholders' Agreement (as defined below).
W I T N E S S E T H:
WHEREAS, pursuant to an Amended and Restated Stockholders' Agreement among
Sprint Corporation, a Kansas corporation ("Sprint"), France Telecom, a societe
anonyme organized under the laws of France ("FT"), and DT, dated as of November
23, 1998 (the "Stockholders' Agreement"), DT may in certain circumstances and in
accordance with Section 2.2 of the Stockholders' Agreement, Transfer Shares to
one or more Qualified Subsidiaries;
WHEREAS, NAB is a wholly-owned subsidiary of DT and a Qualified Subsidiary;
and
WHEREAS, NAB has entered into a Qualified Subsidiary Assumption Agreement,
Qualified Subsidiary Tax Matters Assumption Agreement, Qualified Subsidiary
Confidentiality Agreement, Qualified Subsidiary Standstill Agreement and an
Assumption Agreement of NAB Nordamerika Beteiligungs Holding GmbH, each in
accordance with the provisions of the Stockholders' Agreement and certain other
agreements.
NOW, THEREFORE, in consideration of the rights and obligations contained
herein, and for other good and valuable consideration, the adequacy of which is
hereby acknowledged, the parties hereto agree as follows:
Section 1. Acquisition. At the opening of business in Bonn, Germany on
December 29, 1999 (the "Transfer Time"), DT hereby transfers to NAB, and NAB
hereby acquires, all shares of Class A Stock owned by DT as of the close of
business, Kansas City, Kansas time, on December 28, 1999 or acquired on December
29, 1999, and NAB accepts all rights and obligations with respect to such shares
as of such time in consideration for NAB hereby granting to DT the right to
exercise the voting rights applicable to NAB's share capital. As soon as
practicable on or after the date hereof, DT will advise NAB of the precise
number of shares of Class A Stock so transferred to NAB pursuant hereto.
Section 2. Further Action. The parties agree upon request to execute any
further documents or instruments and to take any other action necessary or
desirable to carry out the purposes or intent of this Agreement. In particular,
between the Transfer Time and the time on which the transfer of record ownership
of the Shares to NAB shall have been reflected on the stock transfer books of
Sprint, DT will hold record ownership of the Shares, and act in all respects, as
the agent of NAB as the beneficial owner of the Shares.
<PAGE>
Section 3. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed to constitute an original, but all
of which together shall constitute one and the same document.
Section 4. Governing Law. This Agreement shall be governed by, and
interpreted 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).
Section 5. No Third-Party Beneficiaries. This Agreement is for the sole
benefit of the parties hereto and their respective successors and permitted
assigns and nothing herein, express or implied, is intended to or shall confer
upon any other person any legal or equitable right, benefit or remedy of any
nature whatsoever under or by reason of this Agreement.
IN WITNESS WHEREOF, this Transfer Agreement executed on behalf of the
parties hereto by their respective duly authorized officers, all as of the date
first above written.
DEUTSCHE TELEKOM AG
By:_______________________________
Name:
Title:
NAB NORDAMERIKA BETEILIGUNGS HOLDING GMBH
By:_______________________________
Name: Dr. Joachim Peckert
Title: Managing Director
By:_______________________________
Name: Mr. Heinz Klesing
Title: Managing Director
