UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D/A-10
Under the Securities Exchange Act of 1934
(Amendment No. 10)
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) 44-44-01-59
(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)
January 25, 2000
(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
NUMBER OF 0
SHARES ----------------------------------------------------------------
8 SHARED VOTING POWER
BENEFICIALLY
- 86,236,036 shares of Class A Common Stock
OWNED BY (equivalent in voting power to 86,236,036 shares of
Series 3 FON Common Stock and 43,118,018 shares of
EACH Series 3 PCS Common Stock)
- 88,601,036 shares of Series 3 FON Common Stock
REPORTING - 13,568,168 shares of Series 3 PCS Common Stock
----------------------------------------------------------------
PERSON 9 SOLE DISPOSITIVE POWER
WITH 0
----------------------------------------------------------------
10 SHARED DISPOSITIVE POWER
- 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)
- 44,464,179 shares of Series 3 FON
Common Stock
- 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 as of
December 29, 1999. 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, at December 29, 1999 the Class
A Common Stock, the Series 3 FON Common Stock and the Series 3 PCS Common
Stock would have represented 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>
- --------------------- ---------------------------------------------------------
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
- --------------------- ---------------------------------------------------------
NUMBER OF 7 SOLE VOTING POWER
SHARES 0
BENEFICIALLY ----------------------------------------------------------------
8 SHARED VOTING POWER
OWNED BY
- 86,236,036 shares of Class A Common Stock
EACH (equivalent in voting power to 86,236,036 shares of
Series 3 FON Common Stock and 43,118,018 shares of
REPORTING Series 3 PCS Common Stock)
- 88,601,036 shares of Series 3 FON Common Stock
PERSON - 13,568,168 shares of Series 3 PCS Common Stock
----------------------------------------------------------------
WITH 9 SOLE DISPOSITIVE POWER
- 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)
- 44,136,857 shares of Series 3 FON Common Stock
- 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 as of
December 29, 1999. 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, at December 29, 1999 the Class
A Common Stock, the Series 3 FON Common Stock and the Series 3 PCS Common
Stock would have represented 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. 10 (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, Amendment No. 8 to the Schedule 13D filed on October 8, 1999 and Amendment
No. 9 to the Schedule 13D filed on January 10, 2000 (as amended and
supplemented, this "Schedule 13D"), of Deutsche Telekom AG ("DT") and France
Telecom ("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 4. PURPOSE OF THE ACQUISITION
Item 4 of the Schedule 13D is hereby amended and supplemented by adding the
following at the end thereof:
The Issuer and MCI WORLDCOM, Inc. ("WorldCom") have entered into an
Agreement and Plan of Merger dated as of October 4, 1999 (the "WorldCom Merger
Agreement") pursuant to which the Issuer has agreed to merge with and into
WorldCom (the "WorldCom Merger").
The Issuer, FT and DT, as partners in the Global One Joint Venture, and
certain other parties, entered into the Master Transfer Agreement dated as of
January 21, 2000 (the "Master Transfer Agreement") and related agreements, as
more fully described in Item 6 below, attached hereto as Exhibit 1 and
incorporated herein by reference, pursuant to which, subject to the terms and
conditions thereof, (i) each of FT and DT has agreed to vote or cause to be
voted all shares of Class A Stock (as defined in the Issuer's Articles of
Incorporation) or other voting equity securities of the Issuer beneficially
owned by FT and its controlled affiliated or DT and its controlled affiliates
(including NAB) in favor of the WorldCom Merger, (ii) the Issuer has agreed to
sell to FT and DT, and FT and DT have agreed to purchase from the Issuer, the
Issuer's interests in the Global One Joint Venture, and (iii) the Issuer, FT and
DT have agreed to amend certain agreements governing FT's and DT's investment in
the Issuer and the Issuer's Articles of Incorporation and Bylaws.
WorldCom Merger
---------------
Pursuant to the Master Transfer Agreement, among other things, each of FT
and DT has agreed, subject to certain terms and conditions, to vote or cause to
be voted all shares of Class A Stock or other voting equity securities of the
Issuer beneficially owned by FT and its controlled affiliates or DT and its
controlled affiliates (including NAB), among other things, (A) for approval and
adoption of the WorldCom Merger Agreement as proposed to be amended in
accordance with the terms of the Master Transfer Agreement (the "Amended
WorldCom Merger Agreement") and the WorldCom Merger, unless the Issuer's board
of directors has terminated the Amended WorldCom Merger Agreement, and (B)
against approval or adoption of any proposal made in opposition to or in
competition with the WorldCom Merger and the transactions contemplated by the
Amended WorldCom Merger Agreement that has not been approved or recommended by
the Issuer's board of directors. Each of FT and DT has granted to the Issuer a
proxy to such effect, the form of which is filed herewith as Exhibit 2. Each of
FT and DT also has agreed, subject to certain terms and conditions, not to
oppose the WorldCom Merger by or before any regulatory or governmental
authority.
In accordance with the Master Transfer Agreement and pursuant to the
Amended WorldCom Merger Agreement, at the Effective Time of the WorldCom Merger
(as defined below), each holder of Class A Stock would be entitled to receive
the same class of common stock and WorldCom Series 1 PCS Stock as the public
stockholders of the Issuer would receive.
Concurrently with entering into the Master Transfer Agreement, the Issuer,
FT and DT and certain other parties have entered into a Mutual Release and
Settlement Agreement and a Transition Plan and the Issuer and the Global One
Joint Venture entered into a Distribution Agreement.
Following the Effective Time of the FT/DT Investment Changes (as defined
below), neither FT nor DT (including NAB) currently expects to continue to make
additional purchases of Issuer securities, either in the open market or directly
from the Issuer pursuant to equity purchase rights contained in the Amended and
Restated Stockholders' Agreement, in order to maintain their aggregate voting
power in the Issuer's equity securities. Prior to the Effective Date of the
FT/DT Investment Changes, neither FT nor DT currently intends to make additional
purchases of the Issuer's common stock in order to avoid dilution in their
aggregate voting power in the Issuer's equity securities caused by dispositions
of low-voting Series 2 PCS Common Stock by certain holders thereof since January
1, 2000, but, in certain circumstances, each of FT and DT may choose to make
additional purchases from the Issuer of the Issuer's common stock pursuant to
the equity purchase rights contained in the Amended and Restated Stockholders'
Agreement.
As previously disclosed, neither FT nor DT (including NAB) currently
intends to remain a long term stockholder of the Issuer or, if the WorldCom
Merger is consummated, of WorldCom following consummation of the WorldCom
Merger. Each of FT and DT (including NAB) expects to dispose of its shares of
the Issuer, or shares of WorldCom it would receive in the WorldCom Merger, in an
orderly manner in light of market conditions and subject to applicable legal
requirements and contractual restrictions contained in the Amended and Restated
Stockholders' Agreement, as further amended by the Master Transfer Agreement.
In connection with the DT Sale (as defined below), FT, DT and NAB have
entered into Amendment No. 1 to the Coordination Agreement, attached hereto as
Exhibit 3 and incorporated herein by reference, to provide for, among other
things, (i) various amendments of the Coordination Agreement to reflect the
termination of the Class A Stock special rights effected and to be effected
pursuant to the Master Transfer Agreement, and (ii) coordination of any sales of
Issuer securities by FT (and its controlled affiliates) and DT (and its
controlled affiliates (including NAB)).
ITEM 6. CONTRACT, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH RESPECT TO
THE SECURITIES OF THE ISSUER
Item 6 of the Schedule 13D is hereby amended and supplemented by adding the
following at the end thereof:
The following summary of certain terms of the Master Transfer Agreement is
qualified in its entirety by reference to the Master Transfer Agreement which is
incorporated herein by reference.
Global One Joint Venture
------------------------
Pursuant to, and subject to the terms and conditions of the Master Transfer
Agreement (and the related Transition Plan), (i) the Issuer has agreed to sell
to FT and DT, and FT and DT have agreed to purchase from the Issuer, the
Issuer's interests in the Global One Joint Venture for $1,127 million and the
repayment by the Global One Joint Venture to the Issuer of $276 million of loans
(plus accrued interest); (ii) FT and DT have assumed sole responsibility for
funding the needs of the Global One Joint Venture; (iii) as of the date of the
Master Transfer Agreement, subject to any necessary regulatory approvals or
derogations and certain restrictions and limitations set forth in the Master
Transfer Agreement, FT and DT shall assume management control of the Global One
Joint Venture; and (iv) as of the date of the Master Transfer Agreement, the
Issuer has been released from certain exclusivity and non-compete provisions of
the JVA, but the Issuer is prohibited from offering services in competition with
certain identified customer contracts of FT and DT until one year after the
closing, and the Issuer has relinquished any right to enforce such JVA
non-compete provisions against FT or DT and their affiliates. The Transition
Plan is designed to assure continuity of service for two years for the Issuer's
Global One Joint Venture customers and prohibits FT, DT and the Global One Joint
Venture from offering services in competition with certain identified customer
contracts of the Issuer until one year after the closing.
WorldCom, pursuant to a Consent and Assumption dated as of January 21,
2000, attached hereto as Exhibit 4 and incorporated herein by reference, (i)
consented to the Issuer's entering into the Master Transfer Agreement and the
related transactions, and (ii) assumed, effective as of the Effective Date of
the WorldCom Merger, the obligations of the Issuer with respect to the Amended
and Restated Registration Rights Agreement, the Amended and Restated Standstill
Agreement, the Qualified Subsidiary Standstill Agreement and the Master Transfer
Agreement and related agreements and transactions.
On January 26, 2000, DT and FT entered into a series of agreements pursuant
to which, subject to the terms and conditions thereof, DT agreed to sell to FT,
and FT agreed to purchase from DT, (i) for $2,755 million and repayment of
approximately $188.5 million of loans (plus accrued interest) by DT to Atlas
Telecommunications S.A. ("Atlas"), a societe anonyme duly organized under the
laws of Belgium, DT's shares in Atlas evidencing DT's existing interests in the
Global One Joint Venture and (ii) for $563.5 million, not earlier than the
closing under the Master Transfer Agreement and in accordance with the
provisions thereof, the interest in the Global One Joint Venture to be acquired
by DT pursuant to the Master Transfer Agreement (collectively, the "DT Sale").
Pursuant to the DT Sale, DT has been released from certain non-compete and
exclusivity provisions of the JVA, but DT is prohibited from offering services
in competition with certain identified customer contracts of FT until one year
after the closing, and DT has relinquished any right to enforce such JVA
non-compete provisions against FT and its affiliates. A transition plan entered
into in connection therewith is designed to assure continuity of service for two
years for DT's Global One Joint Venture customers and prohibits FT and Global
One from offering services in competition with certain identified customer
contracts of DT until one year after the closing. The closing of the DT Sale is
conditioned, among other things, on the closing under the Master Transfer
Agreement having occurred.
Investment Documents
--------------------
Pursuant to the Master Transfer Agreement:
(i) FT and DT have agreed, subject to certain terms and conditions, to
cause their respective representatives on the Issuer's board of directors to
resign on the earliest of (A) December 31, 2000, (B) termination of the WorldCom
Merger Agreement, and (C) the date that a meeting of Issuer shareholders is
first convened for the purpose of voting on the WorldCom Merger (such earliest
date in clauses (A), (B) and (C), the "Effective Time of the FT/DT Investment
Changes");
(ii) at the Effective Time of the FT/DT Investment Changes, FT and DT will
be relieved of certain significant restrictions on the transfer of their equity
interests in the Issuer, with any remaining restrictions terminating at the
effective time of the WorldCom Merger (the "Effective Time of the WorldCom
Merger");
(iii) FT and DT (including NAB) will relinquish their special rights as
holders of the Issuer's Class A Stock no later than the Effective Time of the
FT/DT Investment Changes;
(iv) FT and DT (including NAB) have agreed that for the period not to
exceed 60 days prior to the expected date of the Effective Time of the WorldCom
Merger (as the Issuer determines in accordance with the Master Transfer
Agreement) through the earlier of January 31, 2001 and 45 days after the
Effective Time of the WorldCom Merger, neither FT nor DT (nor any of their
controlled affiliates) shall sell, prior to the WorldCom Merger, any FON Stock
(and certain related securities), and, after the WorldCom Merger, any WorldCom
common stock;
(v) FT and DT (including NAB) have agreed that (I) prior to the earlier of
the Effective Time of the WorldCom Merger and December 31, 2000, each of FT and
DT (including NAB) shall advise the Issuer at least one day in advance of any
proposed sales of FON Stock or PCS Stock by FT (or its controlled affiliates) or
DT (or its controlled affiliates (including NAB)), subject to certain
exceptions, and (II) after the Effective Time of the WorldCom Merger and prior
to December 31, 2001, each of FT and DT shall advise WorldCom at least one day
in advance of any proposed sales of WorldCom equity securities by FT (or its
controlled affiliates) or DT (or its controlled affiliates (including NAB)),
subject to certain exceptions;
(vi) effective at the Effective Time of the FT/DT Investment Changes, the
Amended and Restated Standstill Agreement and the Qualified Subsidiary
Standstill Agreement will be amended to provide for termination of such
agreements on July 31, 2005; and each of FT and DT (including NAB) has confirmed
that the Amended and Restated Standstill Agreement and the Qualified Subsidiary
Standstill Agreement shall continue to be applicable to them and to the WorldCom
securities they would own following the Effective Time of the WorldCom Merger;
and
(vii) effective at the Effective Time of the FT/DT Investment Changes, the
rights of FT and DT under the Amended and Restated Registration Rights Agreement
shall be amended in certain respects as provided in the Master Transfer
Agreement.
ITEM 7. MATERIAL TO BE FILED AS EXHIBITS
Item 7 of the Schedule 13D is hereby amended and supplemented by adding the
following exhibits:
Exhibit 1 Master Transfer Agreement dated as
of January 21, 2000, between FT, DT,
NAB, Atlas, the Issuer, Sprint
Global Venture Inc. and the JV
Entities named therein.
Exhibit 2 Form of Proxy of FT, DT and NAB.
Exhibit 3 Amendment No. 1 to the Coordination Agreement dated
as of January 26, 2000 between DT, FT and NAB.
Exhibit 4 Consent and Assumption by WorldCom.
<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 31, 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 31, 2000 FRANCE TELECOM
By: /s/ Jean-Louis Vineiguerra
------------------------------------
Name: Jean-Louis Vineiguerra
Title: Senior Executive Vice-President and
Chief Financial Officer
<PAGE>
EXHIBIT 1
-------------------------------------------------
MASTER TRANSFER AGREEMENT
-------------------------------------------------
Between and Among
FRANCE TELECOM,
DEUTSCHE TELEKOM AG,
NAB NORDAMERIKA BETEILIGUNGS HOLDING GMBH,
ATLAS TELECOMMUNICATIONS, S.A.,
SPRINT CORPORATION,
SPRINT GLOBAL VENTURE, INC.
and
THE JV ENTITIES SET FORTH ON SCHEDULE II HERETO
Dated as of January 21, 2000
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
ARTICLE I
DEFINITIONS
<S> <C>
SECTION 1.01. Certain Defined Terms..............................................................................2
SECTION 1.02. Other Definitions..................................................................................9
ARTICLE II
PURCHASE AND SALE OF SPRINT VENTURE INTERESTS
SECTION 2.01. Sale of the FST Venture Interests.................................................................10
SECTION 2.02. FT Purchase Price.................................................................................10
SECTION 2.03. Sale of the DT Venture Interests..................................................................10
SECTION 2.04. DT Purchase Price.................................................................................11
SECTION 2.05. Adjustments for Distributions.....................................................................11
SECTION 2.06. Closing...........................................................................................11
SECTION 2.07. Closing Deliveries by Sprint and Sprint Sub.......................................................11
SECTION 2.08. Closing Deliveries by FT..........................................................................12
SECTION 2.09. Closing Deliveries by DT..........................................................................12
SECTION 2.10. Closing Deliveries by the Joint Venture...........................................................12
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF ATLAS, FT, NAB AND DT
SECTION 3.01. Due Incorporation or Formation; Authorization of Agreement........................................13
SECTION 3.02. No Conflict.......................................................................................13
SECTION 3.03. Governmental Consents and Approvals...............................................................14
SECTION 3.04. Litigation........................................................................................14
SECTION 3.05. Brokers...........................................................................................15
SECTION 3.06. No Sovereign Immunity.............................................................................15
SECTION 3.07. Investment Intent.................................................................................15
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF SPRINT AND SPRINT SUB
SECTION 4.01. Due Incorporation or Formation; Authorization of Agreement........................................16
SECTION 4.02. No Conflict.......................................................................................16
SECTION 4.03. Governmental Consents and Approvals...............................................................17
SECTION 4.04. Ownership of Sprint Venture Interests.............................................................17
SECTION 4.05. Litigation........................................................................................17
SECTION 4.06. Brokers...........................................................................................18
SECTION 4.07. Kansas Business Combination Statute...............................................................18
SECTION 4.08. Description of Amended WorldCom Merger Agreement..................................................18
ARTICLE V
COVENANTS
SECTION 5.01. Management of the Joint Venture...................................................................18
SECTION 5.02. Access to Information.............................................................................20
SECTION 5.03. Agreement to Vote in Favor of the WorldCom Merger and Other Matters...............................21
SECTION 5.04. Initial FT/DT Investment Changes..................................................................24
SECTION 5.05. Subsequent FT/DT Investment Changes...............................................................30
SECTION 5.06. Blackout Period; Consultation Regarding Sales by FT/DT............................................31
SECTION 5.07. Initial Preparation of Registration Statement.....................................................32
SECTION 5.08. Settlement Net Payments...........................................................................32
SECTION 5.09. Modifications to Existing Agreements; Releases....................................................32
SECTION 5.10. Stockholder Loans.................................................................................33
SECTION 5.11. Further Action; Consents; Filings.................................................................34
SECTION 5.12. Regulatory Qualifications.........................................................................34
SECTION 5.13. Notice of Developments............................................................................35
SECTION 5.14. Termination of Joint Venture......................................................................35
SECTION 5.15. Amendment to Original WorldCom Merger Agreement; Other Corporate
Approvals...................................................................................35
SECTION 5.16. Covenant Regarding Registration Rights Agreements.................................................35
SECTION 5.17. Covenant Regarding Separate Standstill Agreements.................................................36
ARTICLE VI
CONDITIONS TO THE CLOSING
SECTION 6.01. Conditions to the Obligations of Each Party.......................................................37
SECTION 6.02. Conditions to the Obligations of Sprint and Sprint Sub............................................37
SECTION 6.03. Conditions to the Obligations of Atlas, FT and DT.................................................38
ARTICLE VII
TAX MATTERS
SECTION 7.01. Tax Obligations...................................................................................38
SECTION 7.02. Miscellaneous.....................................................................................39
ARTICLE VIII
INDEMNIFICATION
SECTION 8.01. Survival of Representations and Warranties........................................................41
SECTION 8.02. Indemnification...................................................................................41
ARTICLE IX
TERMINATION
SECTION 9.01. Termination.......................................................................................44
SECTION 9.02. Effect of Termination.............................................................................44
ARTICLE X
GENERAL PROVISIONS
SECTION 10.01. Waiver...........................................................................................46
SECTION 10.02. Expenses.........................................................................................46
SECTION 10.03. Notices..........................................................................................46
SECTION 10.04. Headings.........................................................................................50
SECTION 10.05. Severability.....................................................................................50
SECTION 10.06. Entire Agreement.................................................................................50
SECTION 10.07. Assignment.......................................................................................50
SECTION 10.08. No Third-Party Beneficiaries.....................................................................51
SECTION 10.09. Amendment........................................................................................51
SECTION 10.10. Governing Law and Jurisdiction...................................................................51
SECTION 10.11. Interpretation...................................................................................52
SECTION 10.12. Counterparts.....................................................................................52
SECTION 10.13. Specific Performance.............................................................................52
SECTION 10.14. No Partnership...................................................................................52
SECTION 10.15. Terms Generally..................................................................................52
SECTION 10.16. Public Announcements.............................................................................53
</TABLE>
<PAGE>
SCHEDULES AND ANNEXES
Schedule I Sprint Venture Interests
Schedule II JV Entities
Schedule III Allocation of Purchase Price
Schedule IV Interim Covenants
Annex A. Transition Plan
Annex B Modifications to the Joint Venture Agreement
Annex C Exit Arrangements
Annex D Proxy
Annex E Bill of Sale
<PAGE>
THIS MASTER TRANSFER AGREEMENT is made and entered into as of January 21, 2000,
between and among France Telecom S.A. ("FT"), a societe anonyme duly organized
under the laws of France, Deutsche Telekom AG ("DT"), an Aktiengesellschaft duly
organized under the laws of Germany, NAB Nordamerika Beteiligungs Holding GmbH
("NAB"), a limited liability company duly organized under the laws of Germany
and a wholly owned subsidiary of DT, Atlas Telecommunications S.A. ("atlas"), a
societe anonyme duly organized under the laws of Belgium, Sprint Corporation
("Sprint"), a corporation duly organized under the laws of Kansas, United States
of America, Sprint Global Venture, Inc. ("Sprint Sub"), a corporation duly
organized under the laws of Kansas, United States of America, and the JV
Entities set forth on Schedule II hereto (the "JV Entities"). FT, DT, NAB,
Atlas, Sprint, Sprint Sub and the JV Entities are collectively referred to
herein as the "Parties".
W I T N E S S E T H:
WHEREAS, each of FT, DT, Atlas, Sprint and Sprint Sub is a party to the
Joint Venture Agreement, dated as of June 22, 1995, as amended on January 31,
1996 and June 30, 1997 (as amended, the "JVA"), wherein they agreed to form the
Joint Venture (as defined herein) to provide international telecommunications
services;
WHEREAS, each of FT and DT purchased equal amounts of the common stock of
Sprint pursuant to an Investment Agreement, dated as of July 31, 1995, and have
continued to purchase and subscribe for such capital stock in order for FT and
DT to maintain an aggregate approximate twenty percent ownership interest in
Sprint voting capital stock;
WHEREAS, each of FT, DT, NAB and Sprint is a party to the Amended and
Restated Stockholders' Agreement, dated as of November 23, 1998 (the
"Stockholders' Agreement") and the Amended and Restated Registration Rights
Agreement, dated as of November 23, 1998 (the "Registration Rights Agreement");
each of FT, DT and Sprint is a party to the Amended and Restated Standstill
Agreement, dated as of November 23, 1998 (the "Original Standstill Agreement");
and each of Sprint and NAB is a party to the Qualified Subsidiary Standstill
Agreement, dated as of December 29, 1999 (the "NAB Standstill Agreement", and,
together with the Original Standstill Agreement, the "Standstill Agreements");
WHEREAS, Sprint and MCI WORLDCOM, Inc. ("WorldCom") have entered into an
Agreement and Plan of Merger, dated as of October 4, 1999 (the "Original
WorldCom Merger Agreement"), pursuant to which Sprint has agreed to merge with
and into WorldCom (the "WorldCom Merger");
WHEREAS, Sprint has advised FT and DT that the disposition of Sprint's
interests in the Joint Venture was contemplated by Sprint and WorldCom at the
time the Original WorldCom Merger Agreement was executed;
WHEREAS, FT and DT have agreed to purchase and, in order to eliminate any
material noncompetition and exclusivity provisions that would be applicable to
WorldCom after the WorldCom Merger, Sprint has agreed to sell, Sprint's
interests in the Joint Venture in accordance with the terms hereof;
WHEREAS, it is expected that FT and DT will enter into an agreement through
which one of them will purchase the interest of the other in the Joint Venture
(which may include the interest of the other in Atlas) and the selling party may
also assign its right provided for herein to purchase the Sprint Venture
Interests to the other (or to Atlas) (collectively, such transactions are
hereinafter referred to as the "FT/DT Transactions"); and
WHEREAS, contemporaneously with, and as an inducement to the Parties to
proceed with, the execution of this Agreement (1) WorldCom is executing a
Consent and Assumption in favor of FT and DT (the "Consent and Assumption"), (2)
the Parties (other than NAB) are entering into a Settlement Agreement (the
"Settlement Agreement"), (3) French legal counsel for FT is delivering to Sprint
and Sprint Sub a legal opinion in form and substance, and by legal counsel,
reasonably acceptable to Sprint and Sprint Sub regarding the inapplicability of
loi n1 94-665 du 4 aout 1994 relative a l'emploi de la langue francaise to the
transactions contemplated by this Agreement and the agreements to be executed
and delivered in connection herewith (including the Proxy (as defined in Section
5.03(a)), (4) subject to obtaining necessary approvals from their respective
boards of directors, WorldCom and Sprint will be entering into the Amended and
Restated Agreement and Plan of Merger (the "Amended WorldCom Merger Agreement")
substantially in the form previously delivered to FT, DT and NAB and (5) Global
One Communications, L.L.C. and Sprint Communications Company L.P. are entering
into the Distribution Agreement that is attached to the Transition Plan (the
"Distribution Agreement").
NOW, THEREFORE, in consideration of the premises and the mutual agreements
and covenants hereinafter set forth, the Parties, intending to be legally bound,
hereby agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. Certain Defined Terms. Capitalized terms that are not
otherwise defined herein shall have the meanings assigned to them in the JVA. As
used in this Agreement, the following terms shall have the following meanings:
"Action" means any claim, action, suit, arbitration, inquiry,
proceeding or investigation by or before any Governmental Authority.
"Affiliate" means, with respect to any specified Person, any other
Person that directly, or indirectly through one or more intermediaries,
controls, is controlled by, or is under common control with, such specified
Person; provided, however, that for purposes of this Agreement, the Joint
Venture shall not be an Affiliate of Sprint, FT or DT.
"Agreement" or "this Agreement" means this Master Transfer Agreement,
between and among FT, DT, NAB, Atlas, Sprint, Sprint Sub and the JV
Entities (including the Transition Plan and the other Annexes and Schedules
hereto) and all amendments hereto made in accordance with the provisions of
Section 10.09.
"Applicable Rate" means the three-month LIBOR rate (see Telerate page
3750), plus 20 basis points per annum.
"beneficial owner" (including the terms "beneficially own" or
"beneficial ownership") shall have the meanings given to such terms in Rule
13d-3 under the Exchange Act, provided, however, that (a) neither FT nor
any of its controlled Affiliates (excluding a Qualified Subsidiary owned by
both FT and/or its controlled Affiliates and DT and/or its controlled
Affiliates) shall for purposes of this Agreement be a beneficial owner of
any Sprint securities that are owned of record by (i) DT or any of its
controlled Affiliates (excluding a Qualified Subsidiary owned by both FT
and/or its controlled Affiliates and DT and/or its controlled Affiliates)
or (ii) any directors, officers or employees of DT, FT or any of their
controlled Affiliates; and (b) neither DT nor any of its controlled
Affiliates (excluding a Qualified Subsidiary owned by both FT and/or its
controlled Affiliates and DT and/or its controlled Affiliates) shall for
purposes of this Agreement be a beneficial owner of any Sprint securities
that are owned of record by (i) FT or any of its controlled Affiliates
(excluding a Qualified Subsidiary owned by both FT and/or its controlled
Affiliates and DT and/or its controlled Affiliates) or (ii) any directors,
officers or employees of DT, FT or any of their controlled Affiliates.
"Cable Holders" has the meaning set forth in the Sprint Articles of
Incorporation.
"Class A Director" has the meaning set forth in the Sprint Articles of
Incorporation.
"Class A Stock" has the meaning set forth in the Sprint Articles of
Incorporation.
"Code" means the United States Internal Revenue Code of 1986, as
amended through the date of this Agreement.
"Company Stock Payment Notes" has the meaning set forth in the
Stockholders' Agreement.
"control" (including the terms, "controlled", "controlled by" and
"under common control with"), with respect to the relationship between or
among two or more Persons, means the possession, directly or indirectly or
as trustee or executor, of the power to direct or cause the direction of
the affairs or management of a Person, whether through the ownership of
voting securities, as trustee or executor, by contract or otherwise,
including the ownership, directly or indirectly, of securities having the
power to elect a majority of the board of directors or similar body
governing the affairs of such Person.
"Corporation Joint Venture Termination" has the meaning set forth in
the Sprint Articles of Incorporation.
"DT Purchase Price" means the product of 0.5 and the Purchase Price.
"DT Venture Interests" means all of the Sprint Venture Interests to be
purchased by DT, pursuant to this Agreement, all of which are set forth in
Schedule I hereto.
"Effective Time of the WorldCom Merger" means the date and time that
the WorldCom Merger becomes effective.
"Encumbrance" means any security interest, pledge, mortgage, lien
(including environmental and tax liens), charge, encumbrance, preferential
arrangement or restriction of any kind that relates to ownership rights,
including any restriction on the use, voting, transfer, receipt of income
or other exercise of any attributes of ownership.
"Exchange Act" means the United States Securities Exchange Act of
1934, as amended.
"FT/DT Joint Venture Termination" has the meaning set forth in the
Sprint Articles of Incorporation.
"FT/DT Stock Payment Notes" has the meaning set forth in the
Stockholders' Agreement.
"FT Purchase Price" means the product of 0.5 and the Purchase Price.
"FT Venture Interests" means all of the Sprint Venture Interests to be
purchased by FT, pursuant to this Agreement, all of which are set forth in
Schedule I hereto.
"Governmental Authority" means any French, German, United States or
foreign federal, state, provincial, local, supranational government,
governmental, regulatory or administrative authority, agency or commission
or any court, tribunal, or judicial or arbitral body, including the
European Union.
"Governmental Order" means any order, writ, judgment, injunction,
decree, stipulation, determination or award entered by or with any
Governmental Authority.
"Independent Director" has the meaning set forth in the Sprint
Articles of Incorporation.
"Joint Venture" means the Global One Joint Venture including the JV
Entities and any Subsidiaries of the JV Entities.
"Law" means any French, German, European Union, United States or
foreign federal, national, state, regional, local or other statute, law,
ordinance, regulation, rule, code, order, other requirement or rule of law.
"Liabilities" means any and all debts, liabilities and obligations,
whether accrued or fixed, absolute or contingent, matured or unmatured or
determined or determinable, including those arising under any Law, Action
or Governmental Order and those arising under any contract, agreement,
arrangement, commitment or undertaking.
"Operative Agreements" means the JVA, the Employee Matters Agreement,
the Transfer Agreements, the Intellectual Property Agreements, the Services
Agreements, the Shareholders Agreements, the Constituent Documents, the
Joint Venture Confidentiality Agreement, and the Tax Matters Agreement
(each as defined in the JVA).
"PCS Stock" has the meaning set forth in the Sprint Articles of
Incorporation.
"Permitted Encumbrances" means any Encumbrance set forth in the JVA,
the Transition Plan, the Stockholders' Agreement, the Shareholders
Agreement dated as of January 31, 1996 among Sprint Sub, Atlas and ROW
Holdco B.V., the Shareholders Agreement dated as of January 31, 1996 among
Sprint Sub, Atlas and ROW Salesco B.V., the Shareholders' Agreement dated
as of January 31, 1996 among Sprint Sub, Atlas and ROW Clearinghouse
Limited, the Shareholders Agreement dated as of January 31, 1996 among
Sprint Sub, Atlas, Rest of Europe, L.L.C. and ROE Holdco B.V., the
Shareholders Agreement dated as of January 31, 1996 among Sprint Sub, Atlas
and ROE Salesco B.V., the Shareholders Agreement dated as of January 31,
1996 among Sprint Sub, Atlas and ROE Clearinghouse Limited, the
Shareholders Agreement dated as of January 31, 1996 among Sprint Sub, Atlas
and GBN Holdco Limited, the Operating Agreement of Rest of Europe, L.L.C.
dated as of January 31, 1996 by and among Sprint Sub and Atlas, the Amended
and Restated Operating Agreement of ROW Services, L.L.C. dated as of
January 31, 1996 by and among Sprint Sub and ROW Interim Holdco, the
Articles of Association of GBN Holdco Limited, the Articles of Association
of ROE Clearinghouse Limited, the Articles of Association of ROW
Clearinghouse Limited, the Deed of Incorporation of ROW Holdco B.V., the
Deed of Incorporation of ROW Salesco B.V., the Deed of Incorporation of ROE
Holdco B.V., the Deed of Incorporation of ROE Salesco B.V., the Tax Matters
Agreement dated as of January 31, 1996 by and among Sprint, Sprint Sub, FT,
DT and Atlas, and any other governing documents or instruments relating to
the Joint Venture.
"Person" shall mean any individual, partnership, association, joint
venture, corporation, business, trust, joint stock company, limited
liability company, any unincorporated organization, any other entity, a
"group" of such persons, as that term is defined in Rule 13d-5(b) under the
Exchange Act, or a government or political subdivision thereof.
"Purchase Price" means the sum of (1) U.S. $1,127,000,000 plus (2) if
the Closing has not occurred by May 15, 2000, interest on U.S.
$1,127,000,000 that will accrue from and including May 15, 2000 until the
Closing Date at the Applicable Rate.
"Purchase Price Bank Account" means a bank account in the United
States to be designated by Sprint in a written notice to FT and DT at least
five Business Days before the Closing.
"Purchase Provisions" means all provisions of this Agreement other
than the Surviving Provisions.
"Qualified Subsidiary" shall have the meaning set forth in the
Stockholders' Agreement.
"Recent Ordinary Course Obligations" means (a) Subject Claims from
ordinary course commercial transactions arising on or after July 1, 1999;
(b) Subject Claims arising between the Signing Date and the Closing Date;
(c) unpaid invoices for Subject Claims arising from ordinary course
commercial transactions, which invoices were both: (i) issued within six
months of the date of the transactions or events giving rise to the Subject
Claims and were invoiced in accordance with any applicable rules and
procedures in effect at the time of issuance of the invoices, and (ii)
issued on or after July 1, 1999; (d) any payments due pursuant to the
bilateral settlements process; and (e) any payments due from one Party to
another Party that arise from a billing from a cable consortium or cable
owner for a submarine cable agreement regardless of when the cable
consortium or cable owner bills a Party.
"SEC" means the United States Securities and Exchange Commission.
"Securities Act" means the United States Securities Act of 1933, as
amended.
"Signing Date" means the date of this Agreement.
"Sprint Articles of Incorporation" means Sprint's Amended and Restated
Articles of Incorporation, as amended.
"Sprint Bylaws" means the bylaws of Sprint.
"Sprint JV Contracts" means the contracts between the Joint Venture
and Sprint and/or any of its controlled Affiliates in existence prior to
the Signing Date, other than the JVA and the Operative Agreements.
"Sprint Venture Interests" means all equity or other ownership
interests held by Sprint or any of its Affiliates, directly or indirectly,
in the Joint Venture, all of which are set forth in Schedule I hereto.
"Sprint's Pro Rata Portion" means the portion of the relevant
obligation for borrowed money that Sprint would have been required to
assume if such obligation were shared by the shareholders of the Joint
Venture pro rata in accordance with their respective Venture Interests
immediately prior to entering into this Agreement.
"Subject Claims" means any and all obligations, debts, actions, causes
of action, manners of action, suits, accounts, covenants, agreements,
judgments, controversies, damages and any and all claims, demands and
Liabilities whatsoever, both in law and at equity, known or unknown,
matured or unmatured, arising out of or relating to (a) the formation,
ownership or operation of the Joint Venture; (b) the JVA, the other
Operative Agreements and the Sprint JV Contracts; or (c) the provision or
receipt of goods or services between the Parties in connection with a
Party's operations.
"Subsidiaries" of any Person means any corporation, partnership, joint
venture, limited liability company, trust, estate or other Person of which
(or in which), directly or indirectly, more than 50% of (a) the issued and
outstanding capital stock having ordinary voting power to elect a majority
of the board of directors of such corporation (irrespective of whether at
the time capital stock of any other class or classes of such corporation
shall or might have voting power upon the occurrence of any contingency),
(b) the interest in the capital or profits of such partnership, joint
venture or limited liability company or other Person or (c) the beneficial
interest in such trust or estate is at the time owned by such first Person,
or by such first Person and one or more of its other Subsidiaries or by one
or more of such Person's other Subsidiaries.
"Surviving Agreements" means those contracts defined as Surviving
Agreements in the Transition Plan.
"Surviving Provisions" means Articles I, IX and X and Sections 5.01,
5.02, 5.03, 5.04, 5.05, 5.06, 5.07, 5.08, 5.09(a), 5.11, 5.12, 5.14, 5.15,
5.16 and 5.17 and the Transition Plan.
"Tax" or "Taxes" means any federal, state, county, local, foreign and
other taxes (including income, profits, premium, estimated, excise, sales,
use, value added asset, profit sharing, occupancy, gross receipts,
franchise, ad valorem, severance, capital levy, production, transfer,
withholding, employment, unemployment compensation, payroll and property
taxes, import duties and other governmental charges and assessments),
whether or not measured in whole or in part by net income, and including
deficiencies, interest, additions to tax or interest, and penalties with
respect thereto, whether disputed or not, imposed by any Governmental
Authority or other Tax authority or arising under any Tax law or agreement,
including any joint venture or partnership agreement.
"Tax Return" means any return, declaration, report, claim for refund,
form, or information return or statement relating to Taxes, including any
schedule or attachment thereto, and including any amendments thereof.
"Transfer" has the meaning set forth in the Stockholders' Agreement.
"Voting Securities" has the meaning set forth in the Stockholders'
Agreement.
SECTION 1.02. Other Definitions. The meanings of the following terms can be
found in the Sections of this Agreement indicated below:
Term Section
Amended WorldCom Merger Agreement....................Recitals
Atlas................................................Preamble
Bill of Sale.........................................2.07(f)
Closing..............................................2.06
Closing Date.........................................2.06
Consent and Assumption...............................Recitals
Distribution Agreement...............................Recitals
DT...................................................Preamble
DT/FT/JV Released Parties............................5.09(d)
Effective Time of the FT/DT
Investment Changes...............................5.04(a)
ESPP Amendments......................................5.03(a)
Existing NAB Shares .................................5.03(a)
Existing FT Shares...................................5.03(a)
Expected Date........................................5.06(a)
FT...................................................Preamble
FT/DT Amendments.....................................5.03(a)
FT/DT Transactions...................................Recitals
FT/DT Transition Plan................................5.01(g)
Indemnified Party....................................8.02(e)
Indemnifying Party...................................8.02(e)
Interim Debt Contributions...........................5.01(c)
Interim Sale Termination Date........................9.02(d)
JV Entities..........................................Preamble
JVA..................................................Recitals
Loss.................................................8.02(b)
NAB..................................................Preamble
NAB Standstill Agreement.............................Recitals
Original Standstill Agreement........................Recitals
Original WorldCom Merger Agreement...................Recitals
Parties..............................................Preamble
Permitted Assignee...................................10.07
Preliminary Joint Proxy/Prospectus...................4.08
Proxy................................................5.03(a)
Purchase Provisions Termination Date.................9.02(d)
Purchaser Loss.......................................8.02(a)
Registration Rights Agreement........................Recitals
Repayment Letter.....................................5.10
Representatives......................................5.02
Seller Loss..........................................8.02(b)
Settlement Agreement.................................Recitals
Sprint...............................................Preamble
Sprint Debt Contribution.............................5.01(c)
Sprint Released Parties..............................5.09(c)
Sprint Stockholder Loans.............................5.10
Sprint Stockholders' Meeting.........................5.03(a)
Sprint Sub...........................................Preamble
Standstill Agreements................................Recitals
Stockholders' Agreement..............................Recitals
Subject Shares.......................................5.03(a)
Third-Party Claims...................................8.02(e)
Third Party Purchase Price...........................9.02(d)
Transition Plan......................................5.01(f)
WorldCom.............................................Recitals
WorldCom Merger......................................Recitals
ARTICLE II
PURCHASE AND SALE OF SPRINT VENTURE INTERESTS
SECTION 2.01. Sale of the FT Venture Interests. Upon the terms and subject
to the conditions set forth in this Agreement, Sprint shall cause Sprint Sub to,
and Sprint Sub shall, sell to FT, and FT shall purchase, at the Closing, the FT
Venture Interests.
SECTION 2.02. FT Purchase Price. The purchase price to be paid by FT to
Sprint or its designee for the FT Venture Interests shall be the FT Purchase
Price, paid in cash. The FT Purchase Price shall be paid at the Closing by wire
transfer in immediately available funds to the Purchase Price Bank Account.
SECTION 2.03. Sale of the DT Venture Interests. Upon the terms and subject
to the conditions set forth in this Agreement, Sprint shall cause Sprint Sub to,
and Sprint Sub shall, sell to DT, and DT shall purchase, at the Closing, the DT
Venture Interests.
SECTION 2.04. DT Purchase Price. The purchase price to be paid by DT to
Sprint or its designee for the DT Venture Interests shall be the DT Purchase
Price, paid in cash. The DT Purchase Price shall be paid at the Closing by wire
transfer in immediately available funds to the Purchase Price Bank Account.
SECTION 2.05. Adjustments for Distributions. At the Closing Date, the
Sprint Venture Interests shall be adjusted for any stock split, stock or in-kind
dividend, spin-off, split-off or other distribution or similar dilutive event,
subdivision, combination or reclassification, issuance of options, warrants or
other rights.
SECTION 2.06. Closing. Sprint will deliver the stock certificates or other
evidence of ownership of the Sprint Venture Interests against payment of the FT
Purchase Price and the DT Purchase Price. The delivery of and payment for the
Sprint Venture Interests shall take place at a closing (the "Closing") to be
held at the offices of Shearman & Sterling, 599 Lexington Avenue, New York, New
York at 10:00 a.m. on the fifth Business Day following the satisfaction of the
conditions specified in Article VI or at such other time and place as shall be
agreed upon by the Parties in writing. The time and date upon which the Closing
occurs is referred to herein as the "Closing Date".
SECTION 2.07. Closing Deliveries by Sprint and Sprint Sub. At the Closing,
Sprint and Sprint Sub shall deliver or cause to be delivered:
(a) to FT, stock certificates or other evidence of ownership of the FT
Venture Interests, if any, duly endorsed in blank, or accompanied by stock
powers duly endorsed in blank, in form reasonably satisfactory to FT;
(b) to FT, a receipt for the FT Purchase Price;
(c) to DT, stock certificates or other evidence of ownership of the DT
Venture Interests, if any, duly endorsed in blank, or accompanied by stock
powers duly endorsed in blank, in form reasonably satisfactory to DT;
(d) to DT, a receipt for the DT Purchase Price;
(e) to the Joint Venture, with a copy to each of FT and DT, the
Repayment Letter;
(f) to the Joint Venture, a Bill of Sale substantially in the form
attached as Annex E hereto (the "Bill of Sale") for the dedicated assets to
be purchased by the Joint Venture pursuant to the Transition Plan; and
(g) to FT and DT, the certificates as described in Section 6.03 hereof
and such other certificates as FT and DT may reasonably request as are
necessary to consummate the transactions contemplated by this Agreement.
SECTION 2.08. Closing Deliveries by FT. At the Closing, FT shall deliver to
Sprint and Sprint Sub the items specified below:
(a) the FT Purchase Price to the Purchase Price Bank Account;
(b) a receipt acknowledging delivery by Sprint and Sprint Sub of the
stock certificates or other evidence of ownership of the FT Venture
Interests specified in Section 2.07(a); and
(c) the certificates as described in Section 6.02 hereof and such
other certificates as Sprint and Sprint Sub may reasonably request as are
necessary to consummate the transactions contemplated by this Agreement.
SECTION 2.09. Closing Deliveries by DT. At the Closing, DT shall deliver to
Sprint and Sprint Sub the items specified below:
(a) the DT Purchase Price to the Purchase Price Bank Account;
(b) a receipt acknowledging delivery by Sprint and Sprint Sub of the
stock certificates or other evidence of ownership of the DT Venture
Interests specified in Section 2.07(c); and
(c) the certificates as described in Section 6.02 hereof and such
other certificates as Sprint and Sprint Sub may reasonably request as are
necessary to consummate the transactions contemplated by this Agreement.
SECTION 2.10. Closing Deliveries by the Joint Venture. At the Closing, the
Joint Venture shall deliver to Sprint and Sprint Sub the items specified below:
(a) the amount outstanding under the Sprint Stockholder Loans by wire
transfer of immediately available funds to the Purchase Price Bank Account;
and
(b) payment for the dedicated assets to be purchased by the Joint
Venture from Sprint pursuant to the Transition Plan.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF ATLAS, FT, NAB AND DT
As an inducement to the Parties to enter into this Agreement, each of
Atlas, FT, NAB and DT (but with respect to Section 3.07, FT and DT only), in
each case, severally and not jointly (except that the representations and
warranties made by DT and NAB are made jointly by DT and NAB), represents and
warrants to Sprint and Sprint Sub as follows:
SECTION 3.01. Due Incorporation or Formation; Authorization of Agreement.
Such Party is an entity duly organized and validly existing under the laws of
the jurisdiction of its organization or formation, and has the power and
authority to own its property and carry on its business as owned and carried on
as of the date hereof. Such Party has the power and authority to execute and
deliver this Agreement and the other agreements to be executed and delivered in
connection herewith to which it is a party, to carry out its obligations
hereunder and thereunder and to consummate the transactions contemplated hereby
and thereby, and the execution, delivery and performance of this Agreement and
the other agreements to be executed and delivered in connection herewith to
which it is a party, and the consummation of the transactions contemplated
hereby and thereby, have been duly authorized by all necessary corporate action.
Assuming the due execution and delivery by the other Parties hereto, each of
this Agreement and the other agreements to be executed and delivered in
connection herewith to which it is a party constitutes the legal, valid and
binding obligation of such Party enforceable against such Party in accordance
with its terms.
SECTION 3.02. No Conflict. Assuming the making and obtaining of all
filings, notifications, consents, approvals, authorizations, and other actions
referred to in Section 3.03, and after giving effect to the provisions of this
Agreement, neither the execution, delivery and performance by such Party of this
Agreement and the other agreements to be executed and delivered in connection
herewith to which it is a party, nor the consummation by such Party of the
transactions contemplated hereby and thereby will (i) conflict with, violate or
result in a breach of any of the terms or conditions of any Law or Governmental
Order applicable to such Party, (ii) conflict with, violate, result in a breach
of or require any consent under any of the terms, conditions or provisions of
the governing instruments of such Party or of any material agreement or
instrument to which such Party is a party or by which such Party is or may be
bound or to which any of its material properties or assets is subject, or (iii)
result in the creation or imposition of any Encumbrance upon any of the material
properties or assets of such Party except for Encumbrances that would not result
in a material adverse effect on the assets, liabilities, results of operations,
financial condition or business of such Party or prevent or materially impair
the performance by such Party of its obligations under this Agreement and the
other agreements to be executed and delivered in connection herewith to which it
is a party.
SECTION 3.03. Governmental Consents and Approvals. (a) The execution,
delivery and performance of this Agreement and the other agreements to be
executed and delivered in connection herewith to which it is a party, and the
consummation of the transactions contemplated hereby and thereby by such Party
do not and will not require any consent, approval, authorization or other order
of, any Governmental Authority, except (i) to the extent required, that the
Commission of the European Union, pursuant to Article 81 of the Treaty of Rome,
as amended, and Council Regulation (EEC) no. 4064/89, as amended, shall have
approved this Agreement and the other agreements to be executed and delivered in
connection herewith and the transactions contemplated hereby and thereby; and
(ii) for such other consents, waivers, approvals, authorizations and orders
which if not obtained or made would not be, individually or in the aggregate,
reasonably likely to materially impair the ability of the Parties to effect the
transactions contemplated by this Agreement and the other agreements to be
executed and delivered in connection herewith.
(b) The execution, delivery and performance of the Proxy and the
consummation of the transactions contemplated thereby by each such Party that is
a party thereto do not and will not require any consent, approval, authorization
or other order of any Governmental Authority in France or Germany, or of the
Commission of the European Union.
SECTION 3.04. Litigation. There are no Actions pending or, to the knowledge
of such Party, threatened against or affecting such Party or any of its
properties, assets or businesses which would, if adversely determined (or, in
the case of an investigation could lead to any action, suit or proceeding, which
if adversely determined would), reasonably be expected to materially impair such
Party's ability to perform its obligations under this Agreement or the other
agreements to be executed and delivered in connection herewith to which it is a
party; and such Party has not received any currently effective notice of any
default, and such Party is not in default, under any Governmental Order, which
default would reasonably be expected to materially impair such Party's ability
to perform its obligations under this Agreement or the other agreements to be
executed and delivered in connection herewith to which it is a party.
SECTION 3.05. Brokers. No broker, finder or investment banker is entitled
to any brokerage, finder's or other fee or commission in connection with the
transactions contemplated by this Agreement based upon arrangements made by or
on behalf of such Party.
SECTION 3.06. No Sovereign Immunity. Neither FT nor DT nor any controlled
Affiliate of either of them that is a party to this Agreement or any agreement
executed pursuant to this Agreement (including any Qualified Subsidiary of both
FT (and/or its controlled Affiliates) and DT (and/or its controlled Affiliates))
is entitled to any immunity on the grounds of sovereignty or otherwise
(including pursuant to the Foreign Sovereign Immunities Act, 28 U.S.C. S1602 et
seq.), based upon its status as an agency or instrumentality of government, from
any legal action, suit or proceeding or from setoff or counterclaim, from the
jurisdiction of any competent court described in Section 10.10 or Section 10.13
of this Agreement or Section 13 of the Transition Plan, 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, in each case relating to this Agreement
or any agreement or document executed pursuant to this Agreement.
SECTION 3.07. Investment Intent. Each of FT and DT is purchasing the Sprint
Venture Interests pursuant to this Agreement for its own account for investment
purposes only, and not with a view to the public distribution of such Sprint
Venture Interests or any part thereof, and neither FT nor DT is a party to any
contract, agreement, arrangement or understanding with any Person for resale of
such Sprint Venture Interests in connection with such a public distribution and
each of FT and DT acknowledges that the sale of the Sprint Venture Interests
pursuant to this Agreement will not be registered under the Securities Act or
under any state securities or blue sky law or the securities laws of any other
country, and each of FT and DT understands that the Sprint Venture Interests
purchased pursuant to this Agreement may not be sold or transferred by them
except in compliance with or pursuant to an exemption from, the provisions of
the Securities Act and/or applicable state securities or blue sky laws or any
applicable securities law of any country.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF SPRINT AND SPRINT SUB
As an inducement to Atlas, FT, NAB and DT to enter into this Agreement,
Sprint and Sprint Sub each hereby jointly and severally represent and warrant to
Atlas, FT, NAB and DT as follows and as set forth in the second paragraph of
Section 3(f) of the Transition Plan:
SECTION 4.01. Due Incorporation or Formation; Authorization of Agreement.
Such Party is an entity duly organized and validly existing under the laws of
Kansas, and has the power and authority to own its property and carry on its
business as owned and carried on as of the date hereof. Such Party has the power
and authority to execute and deliver this Agreement and the other agreements to
be executed and delivered in connection herewith to which it is a party, to
carry out its obligations hereunder and thereunder and to consummate the
transactions contemplated hereby and thereby, and the execution, delivery and
performance of this Agreement and the other agreements to be executed and
delivered in connection herewith to which it is a party, and the consummation of
the transactions contemplated hereby and thereby, have been duly authorized by
all necessary corporate action except as contemplated by Section 5.15. Assuming
the due execution and delivery by the other Parties hereto, each of this
Agreement and the other agreements to be executed and delivered in connection
herewith to which it is a party constitutes the legal, valid and binding
obligation of such Party enforceable against such Party in accordance with its
terms, provided that this representation and warranty shall not apply to the
Amended WorldCom Merger Agreement if the Amended WorldCom Merger Agreement is
terminated.
SECTION 4.02. No Conflict. Except for amendments to the Sprint Articles of
Incorporation, and to the Original WorldCom Merger Agreement that are required
and contemplated by this Agreement, assuming the making and obtaining of all
filings, notifications, consents, approvals, authorizations and other actions
referred to in Section 4.03, and after giving effect to the provisions of this
Agreement, neither the execution, delivery and performance of this Agreement and
the other agreements to be executed and delivered in connection herewith to
which it is a party by such Party, nor the consummation by such Party of the
transactions contemplated hereby and thereby will (i) conflict with, violate or
result in a breach of any of the terms or conditions of any Law or Governmental
Order applicable to such Party, (ii) conflict with, violate, result in a breach
of or require any consent under any of the terms, conditions or provisions of
the governing instruments of such Party or of any material agreement or
instrument to which such Party is a party or by which such Party is or may be
bound or to which any of its material properties or assets is subject, or (iii)
result in the creation or imposition of any Encumbrance upon any of the material
properties or assets of such Party except for Encumbrances that would not result
in material adverse effect on the assets, liabilities, results of operations,
financial condition or business of such Party or prevent or materially impair
the performance by such Party of its obligations under this Agreement and the
other agreements to be executed and delivered in connection herewith to which it
is a party.
SECTION 4.03. Governmental Consents and Approvals. The execution, delivery
and performance of this Agreement and the other agreements to be executed and
delivered in connection herewith to which it is a party, and the consummation of
the transactions contemplated hereby and thereby, by such Party do not and will
not require any consent, approval, authorization or other order of any
Governmental Authority, except (other than in the case of the Proxy) (i) to the
extent required, that the Commission of the European Union, pursuant to Article
81 of the Treaty of Rome, as amended, and Council Regulation (EEC) no. 4064/89,
as amended, shall have approved this Agreement and the other agreements to be
executed and delivered in connection herewith (other than the Proxy) and the
transactions contemplated hereby and thereby; (ii) for such other consents,
waivers, approvals, authorizations and orders which if not obtained or made
would not be, individually or in the aggregate, reasonably likely to materially
impair the ability of the Parties to effect the transactions contemplated by
this Agreement and the other agreements to be executed and delivered in
connection herewith; and (iii) in the case of the Amended WorldCom Merger
Agreement and the WorldCom Merger, such consents, waivers, approvals,
authorizations and orders described in the Amended WorldCom Merger Agreement.
SECTION 4.04. Ownership of Sprint Venture Interests. Except for Permitted
Encumbrances, none of which impair the ability of Sprint or Sprint Sub to
transfer the Sprint Venture Interests pursuant to this Agreement, Sprint or
Sprint Sub, directly or indirectly, owns all of the Sprint Venture Interests
free and clear of all Encumbrances. Other than the Sprint Venture Interests and
the Sprint Stockholder Loans, Sprint has no equity or other ownership interest,
direct or indirect, in the Joint Venture. Upon consummation of the transactions
contemplated by this Agreement, FT and DT (or a Permitted Assignee) will own,
free and clear of any Encumbrance, other than Permitted Encumbrances and
Encumbrances in respect of taxes (if any) that are the liability of DT and FT
pursuant to Section 7.01(b) hereof, the FT Venture Interests and the DT Venture
Interests, respectively, and in aggregate, the Sprint Venture Interests.
SECTION 4.05. Litigation. There are no Actions pending or, to the knowledge
of such Party, threatened against or affecting such Party or any of its
properties, assets or businesses which would, if adversely determined (or, in
the case of an investigation could lead to any action, suit or proceeding, which
if adversely determined would), reasonably be expected to materially impair such
Party's ability to perform its obligations under this Agreement; and such Party
has not received any currently effective notice of any default, and such Party
is not in default, under any Governmental Order, which default would reasonably
be expected to materially impair such Party's ability to perform its obligations
under this Agreement.
SECTION 4.06. Brokers. No broker, finder or investment banker is entitled
to any brokerage, finder's or other fee or commission in connection with the
transactions contemplated by this Agreement based upon arrangements made by or
on behalf of such Party.
SECTION 4.07. Kansas Business Combination Statute. Other than those actions
that have been taken prior to the date hereof, no action by Sprint or Sprint Sub
(including any approval or determination of the Sprint board of directors or any
committee thereof) is required to be taken with respect to Section 17-12,100 et
seq. of the Kansas General Corporation Code in order for this Agreement and the
other agreements to be executed and delivered in connection herewith and the
transactions contemplated hereby and thereby to be validly executed and
consummated, and enforceable against Sprint and Sprint Sub.
SECTION 4.08. Description of Amended WorldCom Merger Agreement. The
information included or incorporated by reference in the joint proxy/prospectus,
filed with the SEC on Form S-4 by Sprint and WorldCom on November 5, 1999
(Registration No. 333-90421), as amended by Amendment No. 1, filed with the SEC
on December 16, 1999, and Amendment No. 2, in the form previously delivered to
FT, DT and NAB (as so amended, the "Preliminary Joint Proxy/Prospectus"), as of
the date hereof, do not contain any untrue statement of a material fact or omit
to state any material fact necessary in order to make the statements therein, in
light of the circumstances under which they were made, not misleading, except
for information and statements to the extent necessary to reflect the
transactions contemplated by this Agreement and the Amended WorldCom Merger
Agreement.
ARTICLE V
COVENANTS
SECTION 5.01. Management of the Joint Venture. (a) From the Signing Date
until the Closing Date or the Interim Sale Termination Date, to the fullest
extent permitted by applicable Law, subject to obtaining any required derogation
from the Commission of the European Union and subject to Section 5.01(d) hereof,
Atlas, FT and DT, or any one of FT or DT, will manage the operations of the
Joint Venture without the participation of Sprint or any of its Affiliates.
Sprint will take all action necessary or appropriate, directly or indirectly,
through any JV Entity, including amending the organizational documents of any JV
Entity, or otherwise, to give effect to the foregoing.
(b) To the fullest extent permitted by applicable Law, subject to obtaining
any required derogation from the Commission of the European Union: (i) Sprint
will cause all Sprint representatives to resign, effective as of the Signing
Date, from all of the Governing Boards, including the Global Venture Board and
the Global Venture Committee and (ii) Sprint and its Affiliates shall have no
further obligations under the Operative Agreements with respect to the Governing
Boards, including the obligations set forth in Section 3.9 of the JVA. If
requested by DT and FT, Sprint will designate those individuals requested by DT
and FT to become members of the Governing Boards and take such other action as
is required to cause such individuals to become members of the Governing Boards.
(c) On and after January 1, 2000, except as otherwise provided in this
Section 5.01(c), Sprint shall have no obligation to make any equity capital or
debt contribution to the Joint Venture. In addition, the Parties agree that on
and after January 1, 2000 until the earlier of the Closing Date or the Interim
Sale Termination Date, neither FT nor DT shall make or permit to be made any
direct or indirect equity capital contributions, but may make or permit to be
made debt contributions to, or permit third party borrowings by, the Joint
Venture. If the Purchase Provisions are terminated in accordance with Section
9.01 hereof, and notwithstanding the first sentence of this Section 5.01(c): (i)
promptly after the Interim Sale Termination Date, Sprint shall make a debt
contribution (the "Sprint Debt Contribution") to the Joint Venture in the amount
of Sprint's Pro Rata Portion of the aggregate principal amount of all debt
contributions made by FT and DT (or any Permitted Assignee) to the Joint Venture
from January 1, 2000 through the Interim Sale Termination Date (the "Interim
Debt Contributions") and (ii) the Joint Venture shall simultaneously distribute
the amount of such funds to DT and FT (or any Permitted Assignee) which will,
subject to the following proviso, result in an allocation of the Interim Debt
Contributions plus the Sprint Debt Contribution that is pro rata among Sprint,
FT and DT in accordance with their respective Venture Interests immediately
prior to entering into this Agreement; provided, however, in no event will
Sprint be obligated to contribute to the Joint Venture pursuant to this Section
5.01(c), in the aggregate, more than (x) $30,000,000 multiplied by (y) the
number of months (or any part thereof) during the period between January 1, 2000
and the Interim Sale Termination Date. After the Interim Sale Termination Date,
and notwithstanding the first sentence of this Section 5.01(c), Sprint shall
contribute Sprint's Pro Rata Portion of all future capital requirements of the
Joint Venture.
(d) In connection with managing the business and affairs of the Joint
Venture as of and from the Signing Date until the Closing Date or the Interim
Sale Termination Date, none of Atlas, FT, DT, the Joint Venture or any of their
respective controlled Affiliates will take any of the actions set forth on
Schedule IV hereto without the prior written consent of Sprint, which consent,
in the case of the items listed in paragraphs 4, 5, 7, 12, 15 and 17 of Schedule
IV, shall not be unreasonably withheld.
(e) The Joint Venture will continue to provide Sprint with access to the
books and records of, or other information concerning, the Joint Venture which
Sprint may reasonably request in order to determine and comply with regulatory,
accounting, tax and other legal requirements, including any requirements
relating to the transactions contemplated by this Agreement or, subject to the
second paragraph of Section 3(f) of the Transition Plan, the WorldCom Merger.
Sprint will continue to provide the Joint Venture with access to its books and
records, or other information which the Joint Venture may reasonably request in
order to determine and comply with regulatory, accounting, tax and other legal
requirements, including any requirements relating to the transactions
contemplated by this Agreement.
(f) The Parties agree that the Transition Plan attached as Annex A hereto
(the "Transition Plan") shall be effective as of the Signing Date and is hereby
incorporated by reference into this Agreement in its entirety and shall have the
same force and effect as if included in the body of this Agreement and shall
apply to the transactions contemplated hereby.
(g) (i) Sprint and Sprint Sub hereby consent to the execution and delivery
by FT and DT of any agreements providing for the FT/DT Transactions involving
the purchase by one of them of the interests of the other in the Joint Venture
and providing for a transition plan (the "FT/DT Transition Plan") applicable to
the "withdrawing party" identified in the FT/DT Transactions that is
substantially similar to, and compatible with, the Transition Plan; provided
that such consent shall not be deemed to have been given if FT and DT have not
complied with Section 5.01(g)(ii) hereof.
(ii) FT and DT agree that (A) the provisions of the FT/DT Transactions will
not conflict with their respective obligations under this Agreement or the
obligations of the Joint Venture under this Agreement, and (B) the provisions of
the FT/DT Transition Plan will not treat the "withdrawing party" thereunder in a
manner that is more favorable to such withdrawing party in any material respect
than Sprint is treated under the Transition Plan (other than (x) as appropriate
to reflect the fact that the date on which the DT/FT Transition Plan is entered
into is different than the date of the Transition Plan and that the closing date
of the FT/DT Transactions may be different from the Closing Date under this
Agreement or (y) any more favorable treatment under the FT/DT Transition Plan
that results from actions necessary to obtain required regulatory approvals or
governmental clearances) unless the benefit of such more favorable treatment is
extended to Sprint pursuant to the Transition Plan.
SECTION 5.02. Access to Information. Each of the Joint Venture, Sprint,
Sprint Sub, FT and DT shall use its reasonable best efforts, and shall cause its
officers, directors, employees, accountants, consultants, legal counsel, agents
and other representatives, including those employees who have been seconded or
assigned to the Joint Venture (collectively, "Representatives"), to use their
respective reasonable best efforts, (i) to provide the Representatives of FT and
DT reasonable access at reasonable times upon prior notice to the offices,
properties, other facilities, books and records of the Joint Venture (including
the offices, properties, other facilities, books and records used by the Joint
Venture) and to those Representatives who have knowledge relating to the
business of the Joint Venture; and (ii) furnish promptly such information in
their possession concerning the business, operations, financial condition,
properties, contracts, assets, tax status, including true and complete copies of
all Tax Returns, liabilities, personnel and goodwill of the Joint Venture as FT
and DT or their Representatives may reasonably request.
SECTION 5.03. Agreement to Vote in Favor of the WorldCom Merger and Other
Matters. (a) As to all shares of Class A Stock or other voting equity securities
of Sprint beneficially owned by FT or any of its controlled Affiliates and/or by
DT or any of its controlled Affiliates (including, in each case, any controlled
Affiliates that are Qualified Subsidiaries owned by both FT and/or its
controlled Affiliates and DT and/or its controlled Affiliates), whether such
shares are owned on the date hereof or hereinafter acquired (collectively, the
"Subject Shares"), each of FT and DT hereby severally and not jointly agrees to
(and agrees to cause such controlled Affiliates to) cause the Subject Shares to
be represented at the meeting or meetings of Sprint stockholders held for the
purpose of considering the Amended WorldCom Merger Agreement and the WorldCom
Merger or any other matters described in this Section 5.03(a) (each such meeting
is hereinafter referred to as a "Sprint Stockholders' Meeting"), in person or by
proxy, and to be voted at each Sprint Stockholders' Meeting (including pursuant
to any class vote required in connection therewith): (i) for approval and
adoption of the Amended WorldCom Merger Agreement (as it may be amended by any
amendment thereto that does not have any of the effects enumerated in clauses
(A) through (D) of Section 5.03(d)(ii)) and the WorldCom Merger, unless the
Sprint board of directors has terminated the Amended WorldCom Merger Agreement,
(ii) for approval and adoption of the Amended and Restated Sprint Articles of
Incorporation and the Amended and Restated Sprint Bylaws substantially in the
forms previously delivered to DT, FT and NAB (collectively, the "FT/DT
Amendments"), (iii) for approval of any other matter that has been recommended
by the Sprint board of directors (other than the disposition of assets or
businesses) and that is necessary to implement the matters set forth in the
immediately preceding clauses (i) and (ii), (iv) for approval and adoption of
the amendments to Sprint's Employees Stock Purchase Plan described in the
Preliminary Joint Proxy/Prospectus (the "ESPP Amendments"), and (v) against
approval or adoption of any proposal made in opposition to or competition with
the WorldCom Merger and the transactions contemplated by the Amended WorldCom
Merger Agreement that has not been approved or recommended by the Sprint board
of directors. Such agreement to vote shall also apply to any adjournment or
adjournments of a Sprint Stockholders' Meeting. Without limitation of the
foregoing, each of FT and DT agrees not to (and to cause its controlled
Affiliates (including any Qualified Subsidiary that is owned by both FT and/or
its controlled Affiliates and DT and/or its controlled Affiliates) not to)
exercise any disapproval rights which it may have under the Sprint Articles of
Incorporation with respect to any of the matters described in clause (i), (ii)
or (iii) in the first sentence of this Section 5.03(a). Concurrently with the
execution and delivery of this Agreement, each of FT, DT, NAB, Sprint and
certain of its officers is executing and delivering a proxy in the form of Annex
D (the "Proxy"). The Subject Shares include 43,118,018 shares of Sprint Old
Class A Common Stock, 6,441,007 shares of Sprint Series 3 PCS Stock, and
44,136,857 shares of Sprint Series 3 FON Stock, in each case, owned of record by
FT, together with any shares of PCS Stock issued in respect of such shares as a
result of the two-for-one PCS stock split approved by the Sprint board of
directors on December 14, 1999 (the "Existing FT Shares"), and 43,118,018 shares
of Sprint Class A Common Stock - Series DT, 7,127,161 shares of Sprint Series 3
PCS Stock, and 44,464,179 shares of Sprint Series 3 FON stock, in each case,
owned of record by NAB, together with any shares of PCS Stock issued in respect
of such shares as a result of the two-for-one PCS stock split approved by the
Sprint board of directors on December 14, 1999 (the "Existing NAB Shares").
Capitalized terms used in the preceding sentence that are not defined in this
Agreement have the meanings assigned to them in the Sprint Articles of
Incorporation. Notwithstanding the foregoing, unless earlier terminated in
accordance with the provisions hereof, the obligations of FT and DT (and their
Affiliates) with respect to any Subject Shares (including the Existing FT Shares
and the Existing NAB Shares) contained in clauses (i), (iii) (to the extent
relating to (i)) and (v) of this Section 5.03(a) and in the corresponding
provisions of the Proxy shall terminate on the earlier of (I) the termination of
the Amended WorldCom Merger Agreement and (II) the later of (X) December 31,
2000 and (Y) the earlier of (A) December 31, 2001 and (B) the time that the
Sprint stockholders have voted on the Amended WorldCom Merger Agreement at a
Sprint Stockholders Meeting (whether or not the WorldCom Merger is in fact
approved at that time). The obligations of FT and DT (and their Affiliates) with
respect to any Subject Shares (including the Existing FT Shares and the Existing
NAB Shares) contained in clause (iv) of this Section 5.03(a) and in the
corresponding provisions of the Proxy shall terminate immediately after the
Sprint stockholders have voted upon the ESPP Amendments (whether or not the ESPP
Amendments are in fact approved at that time).
(b) Subject to the last sentence of Section 5.03(a), Section 5.03(d) and
Section 5.03(e), FT agrees as to any Subject Shares (including the Existing FT
Shares) beneficially owned by it and/or its controlled Affiliates (including any
Qualified Subsidiary that is owned by both FT and/or its controlled Affiliates
and DT and/or its controlled Affiliates), and DT and NAB jointly and severally
agree as to any Subject Shares (including the Existing NAB Shares) beneficially
owned by them and/or their controlled Affiliates (including any Qualified
Subsidiary that is owned by both FT and/or its controlled Affiliates and DT
and/or its controlled Affiliates), not to take any action that would impair the
ability of such Subject Shares to be voted in the manner described in Section
5.03(a). Nothing contained in this Section 5.03(b) shall be deemed to impair the
ability of FT, DT, NAB or any of their controlled Affiliates to make any
Transfer of Subject Shares (i) after the Effective Time of the FT/DT Investment
Changes that is permitted under the terms of this Agreement and the
Stockholders' Agreement (when and as amended by this Agreement), or (ii)
pursuant to Section 2.2 and in accordance with Section 7.5(a) and Section 7.5(b)
of the Stockholders' Agreement.
(c) Having regard for the fact that Sprint has informed FT and DT that the
implementation of this Agreement is an integral part of the arrangements
necessary to achieve the WorldCom Merger, and that FT and DT have determined
that they have no intention to oppose the WorldCom Merger before any regulatory
or governmental authority, and having regard for the agreement to vote in favor
of the WorldCom Merger as set forth in Section 5.03(a), each of Atlas, FT and
DT, severally and not jointly, hereby agrees not to oppose, and agrees to cause
each of its controlled Affiliates (including any Qualified Subsidiaries of both
FT and/or its controlled Affiliates and DT and/or its controlled Affiliates) not
to oppose, the WorldCom Merger by or before any regulatory or governmental
authority; provided, however, that nothing in this Section 5.03(c) shall prevent
(i) Atlas, FT or DT or any of their Affiliates from responding fully, accurately
and in good faith to any inquiries from any regulatory or governmental authority
in connection with the WorldCom Merger or (ii) FT from taking actions in Brazil
that (A) it reasonably believes in good faith are necessary to protect its
investments in Brazil and (B) are not undertaken for the purpose of impeding the
ability of WorldCom to operate its business in Brazil.
(d) The obligations of FT, DT and their Affiliates contained in clauses
(i), (iii) (to the extent relating to clause (i)) and (v) of Section 5.03(a) are
subject to the conditions that (i) the Amended WorldCom Merger Agreement shall
have been duly authorized by the boards of directors of WorldCom and Sprint and
shall have been duly executed and delivered by the parties thereto, (ii) the
Original WorldCom Merger Agreement shall be in full force and effect as executed
on October 4, 1999, as amended by the Amended WorldCom Merger Agreement (when so
executed and delivered), and without any further amendment or modification
thereto that (A) reduces the amount or changes the nature of the consideration
to be received by FT, DT or their Affiliates in the WorldCom Merger; (B)
conflicts with the rights of FT, DT or their Affiliates under this Agreement;
(C) otherwise materially and adversely affects FT, DT or their Affiliates; or
(D) treats FT or DT or their Affiliates in a manner different from other Sprint
stockholders which is adverse to FT, DT or their Affiliates, and (iii) the
Consent and Assumption shall be in full force and effect in all material
respects. The Proxy shall be consistent with the provisions of this Section
5.03(d).
(e) In the event of the transfer of any Subject Shares (including the
Existing FT Shares and the Existing NAB Shares) after the Effective Time of the
FT/DT Investment Changes to a Person that is not FT, DT or a controlled
Affiliate of FT or DT, the obligations of FT and DT (and their Affiliates) with
respect to such transferred Subject Shares contained in clauses (i) through (v)
of Section 5.03(a) and in the corresponding provisions of the Proxy shall
terminate at the time of such transfer. The provisions of Section 5.03(a) shall
continue to be applicable to all other Subject Shares that have not been so
transferred.
(f) Having determined that it has no intention to oppose the FT/DT
Transactions before any regulatory or governmental authority, Sprint hereby
agrees not to oppose, and agrees to cause each of its controlled Affiliates not
to oppose, the FT/DT Transactions by or before any regulatory or governmental
authority whose approval is required as a condition to close the FT/DT
Transactions; provided, however, that nothing in this Section 5.03(f) shall
prevent Sprint or any of its Affiliates from responding fully, accurately and in
good faith to any inquires from any regulatory or governmental authority in
connection with the FT/DT Transactions.
SECTION 5.04. Initial FT/DT Investment Changes. (a) (i) Upon the earliest
of (A) December 31, 2000, (B) termination of the Amended WorldCom Merger
Agreement and (C) the date that a meeting of Sprint stockholders is first
convened for the purpose of voting on the WorldCom Merger, whether or not the
WorldCom Merger is in fact approved at such meeting (such earliest date in
clauses (A), (B) and (C) is hereinafter referred to as the "Effective Time of
the FT/DT Investment Changes"), FT hereby agrees to cause its and its controlled
Affiliates' (including any Qualified Subsidiaries that are owned by both FT
and/or its controlled Affiliates and DT and/or its controlled Affiliates)
designees on the Sprint board of directors to resign and DT hereby agrees to
cause its and its controlled Affiliates' (including any Qualified Subsidiaries
that are owned by both FT and/or its controlled Affiliates and DT and/or its
controlled Affiliates) designees on the Sprint board of directors to resign,
such resignations to be effective no later than the Effective Time of the FT/DT
Investment Changes.
(ii) If the resignations referred to in Section 5.04(a)(i) are effective at
any time before Sprint stockholders have approved the FT/DT Amendments, (x) if
the Amended WorldCom Merger Agreement has been terminated prior to the time that
a meeting of Sprint stockholders is first convened for the purpose of voting on
the WorldCom Merger, then FT, DT and their Affiliates shall reacquire all the
rights that they have at the Signing Date to elect directors pursuant to
Sections 2(a) and 4(b) of Article FIFTH of the Sprint Articles of Incorporation
as in effect on the date hereof (and any provisions of the Sprint Bylaws as in
effect on the date hereof relating to the election of directors by Class A
Holders) if the Sprint stockholders do not approve the FT/DT Amendments at the
next meeting of Sprint stockholders, which rights shall be reacquired
immediately following such next meeting if the FT/DT Amendments are not approved
and shall remain in place until such time as the FT/DT Amendments are approved
by Sprint stockholders; provided, however, that any such directors shall be
individuals who, if elected, would be Independent Directors; (y) if the Amended
WorldCom Merger Agreement has not been terminated prior to the time that a
meeting of Sprint stockholders is first convened for the purpose of voting on
the WorldCom Merger, then FT, DT and their Affiliates shall, immediately upon
the effectiveness of the resignations referred to in Section 5.04(a)(i),
reacquire all the rights that they have at the Signing Date to elect directors
pursuant to Sections 2(a) and 4(b) of Article FIFTH of the Sprint Articles of
Incorporation as in effect on the date hereof (and any provisions of the Sprint
Bylaws as in effect on the date hereof relating to the election of directors by
Class A Holders), which rights shall remain in place until such time as the
FT/DT Amendments are approved by Sprint stockholders; provided, however, that
any such directors appointed by the Class A Holders shall be individuals who, if
elected, would be Independent Directors; and (z) Sprint shall take all necessary
corporate action to submit the FT/DT Amendments for approval at the next meeting
of Sprint stockholders to be convened for the election of directors and shall
use its reasonable best efforts to solicit from stockholders approval of the
FT/DT Amendments.
(b) As promptly as practicable after the Signing Date, Sprint shall cause
the FT/DT Amendments to be submitted to the Sprint board of directors (to the
extent deemed necessary or appropriate) and the Sprint stockholders for adoption
and approval, and upon adoption and approval by the stockholders of Sprint,
Sprint shall cause such amendments to the Sprint Articles of Incorporation to be
promptly filed with the Kansas Secretary of State. Effective as of the Effective
Time of the FT/DT Investment Changes, except as otherwise provided in Section
5.04(a)(ii), each of FT and DT (and NAB) (on its own behalf and on behalf of
each of its controlled Affiliates (including any Qualified Subsidiaries owned by
both FT and/or its controlled Affiliates and DT and/or its controlled
Affiliates)) hereby irrevocably and unconditionally waives, remises, releases
and forever discharges (and agrees not to exercise) any rights proposed to be
deleted or eliminated by virtue of the FT/DT Amendments (whether before or after
the submission of such amendments to the stockholders of Sprint and whether or
not such amendments are approved or adopted by the stockholders of Sprint).
(c) Effective as of the Effective Time of the FT/DT Investment Changes, and
without any further action by any Party, the Registration Rights Agreement shall
be amended as follows:
(i) in Section 1.1(a) thereof, the words "for cash" immediately
following the words "for disposition" shall be deleted;
(ii) in Section 1.1(a)(i) thereof, the following language shall be
deleted: "The Company shall not be required to effect any registration
pursuant to this Section 1.1 if during the twelve-month period immediately
preceding such request" and shall be replaced with the following language:
"the Company shall not be required to effect any registration pursuant to
this Section 1.1 if during the six-month period immediately preceding such
request";
(iii) in Section 1.1(b) thereof, the following language shall be
deleted: "The Selling Stockholders, in accordance with Section 2.5 of the
Amended and Restated Stockholders' Agreement, at any time and from time to
time, may change the Planned Date of any registration statement to any date
not more than 120 days after the original Planned Date with respect to such
registration statement";
(iv) in Section 1.1(d) thereof, the words "for cash" in the first
sentence shall be deleted;
(v) in Section 1.1(e) thereof, the words "and shall pay such other
expenses if and to the extent required by Section 2.5 of the Amended and
Restated Stockholders' Agreement" shall be deleted;
(vi) in Section 1.2(a) thereof, the words "for cash" in the second
sentence shall be deleted;
(vii) in Section 1.3 thereof, following subsection (k), after the
paragraph beginning "The Company may require each . . .", the following
separate paragraph shall be inserted: "In the case of the Eligible
Securities referred to in clause (d) of the definition of such term in
Section 2, any obligation of the Company to effect any registration shall
apply only to the Eligible Securities underlying the Derivative Securities
to be issued by FT and DT (or any of their Affiliates, or any finance
company formed by an underwriter to effect such a distribution) and FT or
DT, as applicable, shall be responsible for all expenses and other aspects
of the separate registration of the securities to be issued by such party
or any Affiliate of such party.";
(viii) in Section 1.5(c)(ii) thereof, after the words ". . . 90 days
after any underwritten registration pursuant to Section 1.1 or 1.2 has
become effective", the following parenthetical shall be inserted:
"(including with respect to any offering of Derivative Securities, but only
if the lead book running managing underwriter for such offering advises the
Company in writing that a public sale or distribution during such 10-day
and 90-day periods of such securities by the Company other than pursuant to
the underwritten public offering contemplated by such registration
statement would materially adversely impact such underwritten public
offering)";
(ix) in Section 1.7, the following shall be added after Section
1.7(b), and subsections 1.7(c) and 1.7(d) and any cross-references shall be
renumbered accordingly:
"(c) Derivative Securities. In connection with the offering of
any Derivative Securities:
(i) in addition to any obligations that it may have under
(a) and (b) above, the Company agrees to indemnify and hold
harmless each Selling Stockholder, its directors, officers,
employees, agents and advisors, and each other Person, if any,
who controls such Selling Stockholder within the meaning of the
Securities Act, against any losses, claims, damages or
liabilities, joint or several, to which each such Person may
become subject under the Securities Act or otherwise, insofar as
such losses, claims, damages or liabilities (or actions or
proceedings, whether commenced or threatened, in respect thereof)
arise out of or are based upon any untrue statement or alleged
untrue statement of a material fact contained in the applicable
registration statement, prospectus, preliminary prospectus or
summary prospectus, or any amendment or supplement thereto, for
registering and offering such Derivative Securities, or any
related application, or any omission or alleged omission to state
therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, but only
to the extent such losses, claims, damages or liabilities result
from an untrue statement, omission or allegation thereof which
were made in reliance upon and in conformity with written
information provided by or on behalf of the Company specifically
for use or inclusion therein; and
(ii) the Company may require, as a condition to including
any Eligible Securities held by a Selling Stockholder in any
registration statement filed pursuant to Section 1.1 or 1.2, that
the Company shall have received an undertaking satisfactory to it
from such Selling Stockholder (x) to indemnify and hold harmless
(in the same manner and to the same extent as set forth in
subsection (c)(i) of this Section 1.7) the Company, each
director, officer, employee, agent and advisor of the Company and
each other Person, if any, who controls the Company within the
meaning of the Securities Act, with respect to any untrue
statement or alleged untrue statement in or omission or alleged
omission from the applicable registration statement, prospectus,
preliminary prospectus or summary prospectus, or any amendment or
supplement thereto, for registering and offering such Derivative
Securities, or any related application, or any omission or
alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not
misleading and (y) that such Selling Stockholder will reimburse
each such Company party for any reasonable fees and expenses of
outside legal counsel for such Company parties, or other expenses
reasonably incurred by them, as incurred, in connection with
investigating or defending any such claims; provided, that such
Selling Stockholder will not so indemnify or hold harmless any
Company party to the extent such losses, claims, damages or
liabilities result from a untrue statement, omission or
allegation thereof which were made in reliance upon and in
conformity with written information provided by or on behalf of
any such Company party specifically for use or inclusion in the
applicable document. Such indemnity shall remain in full force
and effect, regardless of any investigation made by or on behalf
of the Company or any such Company party, and shall survive the
transfer of such securities by such Selling Stockholder."; and
(x) in Section 2 thereof, the definition of Eligible
Securities shall be amended by deleting the word "and" before "(c)" and
adding the following language at the end of clause (c) after the word
"otherwise": "; and (d) in connection with the issuance of securities
of FT or DT (or any of their Affiliates, or any finance company formed
by an underwriter to effect such a distribution) ("Derivative
Securities") that are convertible into or exchangeable either
optionally or mandatorily for any of the securities described in
clauses (a) through (c) above, such underlying securities shall be
Eligible Securities, but only to the extent that registration of such
underlying securities with the Commission under the Securities Act is
required in addition to registration of such Derivative Securities by
the applicable issuer thereof."
(d) Effective as of the Effective Time of the FT/DT Investment Changes, and
without any further action by any Party, Section 5.1 of the Original Standstill
Agreement and Section 4.1 of the NAB Standstill Agreement (and Section 4.1 of
all other Qualified Stock Purchaser Standstill Agreements, Qualified Subsidiary
Standstill Agreements and Strategic Investor Standstill Agreements (as such
terms are defined in the Original Standstill Agreement), if any) shall be
amended to add the following sentence at the end thereof: "Unless earlier
terminated, the provisions of this Agreement shall terminate on July 31, 2005."
Each Party further confirms that the Standstill Agreement to which it or any of
its Qualified Subsidiaries is a party (and all other standstill agreements
referred to in the preceding sentence, if any) will continue to be applicable to
FT, DT and NAB and to the WorldCom securities they will own following
consummation of the WorldCom Merger.
(e) Effective as of the Effective Time of the FT/DT Investment Changes, and
without any further action by any Party, the Stockholders' Agreement shall be
amended by:
(i) deleting the following Articles, Sections and Clauses thereof in
their entirety: (A) Sections 2.3, 2.5, 2.6 and 2.7, (B) Article III, (C)
Article IV, (D) Article VI, and (E) Sections 7.3, 7.5, 7.8, 7.9, 7.10,
7.11, 7.13, 7.14, 7.15, 7.16 and 7.17;
(ii) deleting the following language in Section 2.4: "If Section 2.3
hereof does not apply or is terminated pursuant to Section 2.6, but subject
to the Company's rights under Section 2.5, each Class A Holder may Transfer
Shares (each such Class A Holder being a "Transferring Stockholder")
without restriction, provided that, with respect to any such Transfer
(including any Transfer of Post-Restructuring Series 3 PCS Shares)" and
replacing it with the following language: "Each Class A Holder may Transfer
Shares (each such Class A Holder being a "Transferring Stockholder")
without restriction, provided that, with respect to any such Transfer of
Shares (including any Transfer of Post-Restructuring Series 3 PCS Shares)";
(iii) replacing clause (c) of Section 2.4 in its entirety with the
following: "The restrictions contained in Section 2.4(a) shall not apply to
any Transfer by a Transferring Stockholder (x) pursuant to unsolicited
brokers' transactions or (y) pursuant to transactions, including block
trades, with a bona fide market-maker or dealer, provided that the
Transferring Stockholder shall not be disposing in any single such
transaction of Voting Securities with a number of Votes representing
greater than 5% of the Voting Power of the Company, and provided further
that the Transferring Stockholder shall have instructed the market-maker or
dealer to take all steps reasonably practicable to avoid transferring
shares to any Person or Group that has filed a Schedule 13D that is in
effect at the time with respect to the Company pursuant to Section 13(d) of
the Exchange Act. Nothing contained herein shall prohibit the Transferring
Stockholder from entering into any transaction required to be effected
through a specialist on the floor of a national securities exchange if
required by the rules of such exchange in connection with any transaction
permitted by this Section 2.4(c).";
(iv) deleting the following language at the end of Section 5.1(f):
"The applicable FT/DT Weighted Purchase Price" and replacing it with the
following language: "(i) in the case of the Series 3 FON Stock, the Market
Price of a share of Series 1 FON Stock on the date of the issuance which
gave rise to such Equity Purchase Right and (ii) in the case of the Series
3 PCS Stock, the Market Price of a share of Series 1 PCS Stock on the date
of the issuance which gave rise to such Equity Purchase Right";
(v) Adding the following language after the last paragraph of Section
2.8(a): "Notwithstanding any of the foregoing, except in the case of a
Transfer pursuant to Section 2.2, no certificate issued upon Transfer or
exchange shall bear the legend set forth in the final two paragraphs above,
so long as such Transfer complied with the provisions of this Article II.";
and
(vi) replacing Section 2.8(g) in its entirety with the following:
"Prior to the consummation of a pledge of Shares (other than
Post-Restructuring Series 3 PCS Shares) by a Class A Holder, such Class A
Holder shall deliver, or shall cause such prospective pledgee to deliver,
an acknowledgment that such pledgee has examined the legend set forth in
Section 2.8(a) and understands and agrees that any rights it has with
respect to such Shares are subject to those of the Company set forth in
this Agreement, including agreeing that (i) no foreclosure on such Shares
shall be effected except as permitted by, and in accordance with, the terms
of this Agreement, and (ii) under no circumstances shall such pledgee be
entitled to exercise voting rights, consent rights or disapproval rights
with respect to such Shares, except for the right to vote as a holder of
shares of Series 1 FON Stock or Series 1 PCS Stock, as the case may be, if
such pledgee owns such Shares after a foreclosure conducted in accordance
with the terms hereof."
(f) (i) Sprint shall, and shall cause its successors and assigns (whether
by way of merger, consolidation, asset or stock purchase or otherwise) to (A)
indemnify and exculpate the current and former Class A Directors in a manner and
to an extent that is no less favorable to such directors than the manner in
which and extent to which such Class A Directors are presently indemnified or
are permitted to be exculpated and (B) insure the current and former Class A
Directors at any time in a manner and to an extent that is no less favorable to
such directors than other current or former directors of Sprint are insured at
such time; provided that if the WorldCom Merger is effected, then such current
or former Class A Directors shall be indemnified and insured in the manner
described in Section 5.9 of the Amended WorldCom Merger Agreement.
(ii) In the event that Sprint or any of its successors or assigns (whether
by way of merger, consolidation, asset or stock purchase or otherwise) (A)
consolidates with or merges into any other Person and is not the continuing or
surviving corporation or entity of such consolidation or merger or (B) transfers
or conveys all or substantially all of its properties and assets to any Person,
then, and in each such case, proper provision will be made so that the
successors and assigns of Sprint assume the obligations set forth in this
Section 5.04(f).
(g) Effective as of the Effective Time of the FT/DT Investment Changes and
assuming that there are no borrowings thereunder, and without any further action
by any Party, each Company Stock Payment Note and FT/DT Stock Payment Note to
the extent issued and delivered shall be deemed to be canceled and of no force
and effect and the holders thereof shall use reasonable efforts to cause each
such note to be returned to the obligor thereof.
SECTION 5.05. Subsequent FT/DT Investment Changes. Immediately upon the
Effective Time of the WorldCom Merger, and without any further action by any
Party, (a) the Stockholders' Agreement shall be further amended by deleting the
following Articles and Sections thereof in their entirety: (x) Articles II, V,
VII (other than Section 7.6), VIII and IX (provided, however, that each of the
Parties shall retain all rights under such Article IX with respect to any claims
that they may have thereunder with respect to matters that arose prior to the
time that such Article IX is deleted from the Stockholders' Agreement in
accordance herewith), and (y) Sections 11.12 and 11.13; and (b) the agreement,
dated November 23, 1998, relating to the payment of dividends and the
withholding of taxes, shall be terminated (provided, however, that each of the
parties thereto shall retain all rights thereunder with respect to any claims
that they may have thereunder with respect to matters that arose prior to the
time that such agreement is terminated).
SECTION 5.06. Blackout Period; Consultation Regarding Sales by FT/DT. (a)
After a determination by Sprint, acting in good faith and after consultation
with WorldCom, of the date the Effective Time of the WorldCom Merger is
reasonably expected to occur, Sprint may, in its discretion, provide written
notice to that effect, setting forth such expected date of the Effective Time of
the WorldCom Merger (the "Expected Date"), to FT and DT. If Sprint gives such
notice, then, from the date that is the later of (A) five days after the date
that such notice is given and (B) sixty (60) days prior to the Expected Date
through the date that is the earlier of (x) January 31, 2001 and (y) forty-five
(45) days after the Effective Time of the WorldCom Merger, each of FT and DT
hereby severally and not jointly agrees, and agrees to cause its respective
controlled Affiliates (including any Qualified Subsidiaries that are owned by
both FT and/or its controlled Affiliates and DT and/or its controlled
Affiliates), not to sell or otherwise dispose of (i) prior to the Effective Time
of the WorldCom Merger, any FON Stock (as such term is defined in the Sprint
Articles of Incorporation) or any other security convertible into or
exchangeable for FON Stock or the value of which is derived from the value of
FON Stock or (ii) after the Effective Time of the WorldCom Merger, any MCI
WorldCom Common Stock (as defined in the Amended WorldCom Merger Agreement) into
which shares of Sprint capital stock beneficially owned by FT, DT and/or their
controlled Affiliates are convertible under the terms of the Amended WorldCom
Merger Agreement, or any other security convertible into or exchangeable for MCI
WorldCom Common Stock or the value of which is derived from the value of MCI
WorldCom Common Stock. The Parties agree that if Sprint gives such notice, then
each of FT and DT may make such notice public if (i) it determines in good
faith, in connection with the disposition of any securities, that such
disclosure would be required by law or the rules of a national securities
exchange, and (ii) to the extent practicable, it provides at least 24 hours'
prior notice to Sprint that it intends to make such disclosure.
(b) Prior to the earlier of (x) the Effective Time of the WorldCom Merger
and (y) December 31, 2000, each of FT and DT agrees to advise Sprint, at least
one day in advance, of proposed sales of FON Stock or PCS Stock (each as defined
in the Sprint Articles of Incorporation) by it or its controlled Affiliates
(including any Qualified Subsidiaries owned by both FT and/or its controlled
Affiliates and DT and/or its controlled Affiliates), which, taken together with
all prior sales by it and its controlled Affiliates (including any Qualified
Subsidiaries owned by both FT and/or its controlled Affiliates and DT and/or its
controlled Affiliates) over the prior four-week period, have an aggregate value
of more than $25 million. After the Effective Time of the WorldCom Merger, and
prior to December 31, 2001, each of FT and DT agrees to advise WorldCom, at
least one day in advance, of proposed sales of WorldCom equity securities by it
or its controlled Affiliates which, taken together with sales by it and its
controlled Affiliates (including the Qualified Subsidiaries described above)
over the prior four-week period, have an aggregate value of more than $50
million.
SECTION 5.07. Initial Preparation of Registration Statement. Sprint agrees
to begin preparation of a registration statement prior to the Effective Time of
the FT/DT Investment Changes so that it may reasonably expect to cause such
statement to be filed with the SEC in accordance with the Securities Act
promptly after the Effective Time of the FT/DT Investment Changes in respect of
any demand that may be made by DT or FT pursuant to the Registration Rights
Agreement; provided that such demand shall not relate to more securities than DT
or FT, as applicable, has a present intention to sell at the time such demand is
made.
SECTION 5.08. Settlement Net Payments. Each of FT, DT, Sprint, the Joint
Venture and their respective Affiliates shall fulfill (and FT and DT shall cause
eunetcom S.A., a societe anonyme organized under the laws of France and
eunetcom, Inc., a Delaware corporation, to fulfill) all of its obligations as
set forth in the Settlement Agreement.
SECTION 5.09. Modifications to Existing Agreements; Releases. (a) Without
any further action of the Parties, (i) the JVA is hereby amended to reflect the
modifications set forth on Annex B hereto and (ii) the Operative Agreements and
the Sprint JV Contracts are hereby amended to delete any non-compete,
exclusivity or similar provision insofar as they purport to be applicable to
Sprint or any of its controlled Affiliates (and Sprint and Sprint Sub hereby
agree that the FT/DT Transactions may include a similar provision with respect
to the withdrawing party identified therein and its controlled Affiliates). The
provisions of Section 22.2 of the JVA that relate to development of a transition
plan shall be deemed fulfilled by the Transition Plan and, subject to Section
5.01(g), the FT/DT Transition Plan, notwithstanding any other provision in the
JVA that contemplates the development of such a plan only upon termination of
the JVA.
(b) As of the Closing Date, Sprint and Sprint Sub shall cease to be parties
to the JVA, the other Operative Agreements and the Sprint JV Contracts, other
than the Surviving Agreements.
(c) At and from the Closing Date, each of the Parties (other than Sprint
and Sprint Sub), for itself and its controlled Affiliates, does fully,
irrevocably and unconditionally remise, release and forever discharge Sprint and
Sprint Sub and their respective officers, directors, employees, agents,
controlled Affiliates, successors and assigns (the "Sprint Released Parties") of
and from any and all Subject Claims arising prior to the Closing that such Party
or its controlled Affiliates may have against one or more of the Sprint Released
Parties except for the following obligations, which shall continue after the
Closing Date:
(i) obligations arising under this Agreement, including those
contemplated by the Transition Plan;
(ii) obligations arising under the Distribution Agreement;
(iii) obligations arising under the Surviving Agreements on or after
July 1, 1999;
(iv) obligations arising under the Settlement Agreement; and
(v) Recent Ordinary Course Obligations.
(d) At and from the Closing Date, each of Sprint and Sprint Sub, for itself
and its controlled Affiliates, does fully, irrevocably and unconditionally
remise, release and forever discharge each Party (other than Sprint and Sprint
Sub) and their respective officers, directors, employees, agents, controlled
Affiliates, successors and assigns (the "DT/FT/JV Released Parties") of and from
any and all Subject Claims arising prior to the Closing that Sprint or Sprint
Sub or any of their respective controlled Affiliates may have against one or
more of the DT/FT/JV Released Parties, except for the following obligations,
which shall continue after the Closing Date:
(i) obligations arising under this Agreement, including those
contemplated by the Transition Plan;
(ii) obligations arising under the Distribution Agreement;
(iii) obligations arising under the Surviving Agreements on or after
July 1, 1999;
(iv) obligations arising under the Settlement Agreement; and
(v) Recent Ordinary Course Obligations.
SECTION 5.10. Stockholder Loans. As of the Signing Date, Sprint and its
Affiliates have made loans to the Joint Venture in the aggregate principal
amount outstanding of $276,000,000. On the Closing Date, the Joint Venture shall
pay Sprint or its designee (i) the amount of $276,000,000, which represents
payment in full of all principal on loans (and other evidence of borrowed money)
made by Sprint and its Affiliates to the Joint Venture, together with (ii) any
accrued and unpaid interest due thereon at the Applicable Rate (collectively,
the "Sprint Stockholder Loans"). Upon such payment, Sprint shall deliver to the
Joint Venture, with a copy to FT and DT, a repayment letter, pursuant to which
Sprint acknowledges repayment in full of all indebtedness for money borrowed by
the Joint Venture from Sprint and its Affiliates (the "Repayment Letter").
SECTION 5.11. Further Action; Consents; Filings. Upon the terms and subject
to the conditions hereof, each of the Parties shall use its reasonable best
efforts as promptly as practicable in connection with the transactions
contemplated by this Agreement to (i) take, or cause to be taken, all
appropriate action and do, or cause to be done, all things necessary, proper or
advisable under applicable Law to consummate the transactions contemplated by
this Agreement, (ii) obtain from Governmental Authorities and any third parties,
as may be necessary, any consents, licenses, permits, waivers, approvals,
authorizations, registrations, orders or estoppel certificates required to be
obtained or made by them or any of their Subsidiaries in connection with the
authorization, execution and delivery of this Agreement and the consummation of
the transactions contemplated hereby, and (iii) make all necessary filings, and
thereafter make any other required submissions, with respect to this Agreement
and the transactions contemplated hereby, that are required under any applicable
Law. The Parties shall cooperate with one another in connection with the making
of all such filings, including by providing copies of all such documents to the
nonfiling Party and its advisors prior to filing and, if requested, by accepting
all reasonable additions, deletions or changes suggested in connection
therewith; provided, however, that, subject to Section 5.03(f) hereof, Sprint
shall not have any affirmative obligation under this Section 5.11 to FT or DT
with respect to those matters related to the FT/DT Transactions. Each Party
agrees to procure the cooperation of the Joint Venture in effecting the
provisions of this Agreement and the transactions contemplated hereby. The Joint
Venture will cooperate in connection with the making of all such filings,
including by providing copies of all documents to be filed by the Joint Venture
to the other Parties and their advisors prior to filing and, if requested, by
accepting all reasonable additions, deletions or changes suggested in connection
therewith. To the extent that the transactions contemplated hereby require
amendments or modifications to the JVA or the Operative Agreements which are not
specifically provided for herein, the Parties shall use their reasonable best
efforts to cause such amendments or modifications to be entered into as soon as
practicable.
SECTION 5.12. Regulatory Qualifications. The Parties shall cooperate and
use their respective reasonable best efforts as promptly as practicable to
prepare all documentation, to effect all filings (including, to the extent
necessary, filings pursuant to Article 81 of the Treaty of Rome, as amended, and
Council Regulation (EEC) no. 4064/89, as amended, to obtain approval of the
Commission of the European Union) and to obtain all permits, consents, waivers,
approvals and authorizations of all third parties and Governmental Authorities
necessary to consummate the transactions contemplated by this Agreement.
SECTION 5.13. Notice of Developments. Prior to the Closing, each Party
shall promptly notify the other in writing of (i) all events, circumstances,
facts and occurrences arising subsequent to the date of this Agreement that
could result in any material breach of their respective representations,
warranties or covenants in this Agreement or that could have the effect of
making any of their respective representations, warranties in this Agreement
untrue or incorrect in any material respect and (ii) all other material
developments affecting the ability of such Party to perform its obligations
under this Agreement.
SECTION 5.14. Termination of Joint Venture. The Parties hereby agree that
neither this Agreement nor the transactions contemplated hereby shall be a
Corporation Joint Venture Termination, a FT/DT Joint Venture Termination or a
Termination Condition for any purpose. The Parties agree that from and after the
Signing Date until after the Closing, no Party may declare an Impasse or Deliver
a Termination Notice, and that the provisions of Section 9.02 shall apply in the
event of a termination of the Purchase Provisions pursuant to Section 9.01.
SECTION 5.15. Amendment to Original WorldCom Merger Agreement; Other
Corporate Approvals. (a) Promptly after the Signing Date, Sprint shall submit
the Amended WorldCom Merger Agreement to its board of directors for approval (to
the extent deemed necessary or appropriate), and Sprint, promptly after
obtaining such approval from the Sprint board of directors (if applicable),
shall execute and deliver the Amended WorldCom Merger Agreement.
(b) This Agreement, the Settlement Agreement, the Distribution Agreement,
and the other agreements to be executed and delivered in connection herewith
have been negotiated by and through FT, DT and Sprint on behalf of the JV
Entities and FT, DT and Sprint approve, authorize and instruct the execution of
such agreements by the appropriate authorized officers of the JV Entities. To
the extent necessary, FT, DT and Sprint shall each use their reasonable best
efforts to procure, in connection with the execution and delivery of this
Agreement, the Settlement Agreement, the Distribution Agreement and all other
agreements to be executed and delivered by any JV Entity in connection with this
Agreement, that all necessary corporate or other action has been taken by the JV
Entities, whether by ratification or otherwise, to duly authorize, execute and
deliver such agreements.
SECTION 5.16. Covenant Regarding Registration Rights Agreements. If
requested in writing by FT and DT at any time after the Effective Time of the
FT/DT Investment Changes, Sprint agrees to enter into two separate registration
rights agreements, one with Sprint and FT and one with Sprint, DT and NAB, in
replacement of the Registration Rights Agreement; provided, however, that the
obligations of Sprint under the new registration rights agreements taken
together shall be no more extensive than its obligations under the Registration
Rights Agreement. Notwithstanding the foregoing, such separate registration
rights agreements shall not include the grant by Sprint of any registration
rights that are inconsistent with Sprint's obligations under its registration
rights agreements with Cable Holders.
SECTION 5.17. Covenant Regarding Separate Standstill Agreements. If
requested in writing by FT, DT, NAB or Sprint at any time after the Effective
Time of the FT/DT Investment Changes, then each of FT, DT, NAB and Sprint agrees
to enter into separate standstill agreements, one with Sprint and FT (and its
Subsidiaries), one with Sprint and DT (and its Subsidiaries), and one with
Sprint and NAB, in replacement of the Standstill Agreements; provided, however,
such replacement standstill agreements shall be identical to the Standstill
Agreement that such agreement replaces, except that: (i) one replacement
standstill agreement will be with FT (and its Subsidiaries), one replacement
standstill agreement will be with DT (and its Subsidiaries), and one replacement
standstill agreement will be with NAB, (ii) all covenants, restrictions and
other agreements contained in the replacement standstill agreements shall only
be determined with reference to one of FT (and its Subsidiaries) or DT (and its
Subsidiaries), and, to the extent the Standstill Agreement applies to Affiliates
or other related parties, related parties of one of them, and (iii) the
numerical percentages set forth in Sections 2.1 and 2.2 of the Standstill
Agreement shall each be divided in half; provided, however, that the references
in the Standstill Agreement to "20%" shall in the replacement standstill
agreements be proportional to reflect instead the relative Voting Power (as
defined in the Standstill Agreement) in relation to such "20%" of FT and its
Qualified Subsidiaries, on the one hand, and DT and its Qualified Subsidiaries
(including NAB), on the other hand, as of the date of this Agreement as
reflected in the fifth sentence of Section 5.03(a), as modified to reflect only
any changes in relative Voting Power after the date of this Agreement due to (x)
the change in the relative votes granted under the Sprint Articles of
Incorporation to the Sprint FON Stock and the Sprint PCS Stock, and (y) the
exercise to a different extent by FT (or any of its Qualified Subsidiaries) or
DT (or any of its Qualified Subsidiaries) of its Equity Purchase Rights (as
defined in the Stockholders' Agreement); and provided further that (i) the sum
of such comparable references to such 20% figure in (A) the replacement
standstill agreement(s) of FT and its Subsidiaries, and (B) the replacement
standstill agreement(s) of DT and its Subsidiaries (including NAB) shall not
exceed 20% and (ii) no such comparable reference in any replacement standstill
agreement individually shall exceed 12%.
ARTICLE VI
CONDITIONS TO THE CLOSING
SECTION 6.01. Conditions to the Obligations of Each Party. The obligations
of each Party to consummate the Closing are subject to the satisfaction or
written waiver of the following conditions:
(a) No Order. No Governmental Authority shall have enacted,
threatened, issued, promulgated, enforced or entered any Governmental Order
that is then in effect, pending or threatened, and has, or is reasonably
likely to have, the effect of prohibiting consummation of the Closing;
(b) No Proceeding or Litigation. No Action shall have been commenced
or threatened by or before any Governmental Authority against any Party
hereto, seeking to restrain or materially and adversely alter the
transactions contemplated hereby which is likely to render it impossible or
unlawful to consummate the transactions contemplated by this Agreement;
provided, however, that a Party waives the provisions of this Section
6.01(b) if it has solicited or encouraged any such Action;
(c) Closing Deliveries. Each Party shall have received the closing
deliveries due it as indicated in Sections 2.07, 2.08, 2.09 and 2.10, as
applicable; and
(d) Consents and Approvals. Any waiting period (and any extension
thereof) applicable to the consummation of the transactions contemplated by
this Agreement under applicable Law shall have expired or been terminated;
and, to the extent required, the Parties shall have received approval of
the Commission of the European Union, pursuant to Article 81 of the Treaty
of Rome, as amended, and Council Regulation (EEC) no. 4064/89, as amended.
SECTION 6.02. Conditions to the Obligations of Sprint and Sprint Sub. The
obligations of Sprint and Sprint Sub to consummate the Closing are subject to
the satisfaction or written waiver of the following condition:
Representations, Warranties and Covenants. The representations and
warranties of Atlas, FT and DT contained in this Agreement shall have been
true and correct in all material respects when made and true and correct in
all material respects as of the Closing Date, with the same force and
effect as if made as of the Closing Date (except for representations and
warranties made as of a specific date, which will be true and correct in
all material respects as of such date), and the covenants and agreements
contained in this Agreement to be complied with by Atlas, FT and DT on or
before the Closing Date shall have been complied with in all material
respects, and Sprint and Sprint Sub shall have received a certificate from
Atlas, FT and DT to such effect signed by a duly authorized officer.
SECTION 6.03. Conditions to the Obligations of Atlas, FT and DT. The
obligations of Atlas, FT and DT to consummate the Closing are subject to the
satisfaction or written waiver of the following condition:
Representations, Warranties and Covenants. The representations and
warranties of Sprint and Sprint Sub contained in this Agreement (including
in the Transition Plan) shall have been true and correct in all material
respects when made and true and correct in all material respects as of the
Closing Date, with the same force and effect as if made as of the Closing
Date (except for representations and warranties made as of a specific date,
which will be true and correct in all material respects as of such date),
and the covenants and agreements contained in this Agreement (including in
the Transition Plan) to be complied with by Sprint and Sprint Sub on or
before the Closing Date shall have been complied with in all material
respects, and FT and DT shall have received certificates of Sprint and
Sprint Sub to such effect signed by duly authorized officers thereof.
ARTICLE VII
TAX MATTERS
SECTION 7.01. Tax Obligations. (a) The Parties agree that, subject to the
express provisions of Section 7.01(b) hereof relating to the payment of transfer
and similar Taxes, Sprint will pay (i) the Taxes for which Sprint or any of its
Affiliates has Liability under applicable Law arising out of the transfer of the
Sprint Venture Interests to DT and FT contemplated herein (including any Taxes
imposed upon Sprint or any of its Affiliates in connection with the
establishment of the Joint Venture) and (ii) the Taxes arising out of any direct
or indirect transfer of ownership of any of the Sprint Venture Interests to any
Sprint Affiliate on or prior to the Closing Date pursuant to Section 10.07
hereof.
(b) The Parties agree that all sales, transfer, filing, recordation and
similar taxes and fees (including all real estate transfer taxes and conveyance
and recording fees, if any), and all stamp taxes, registration taxes, duties or
other charges arising from or associated with the sale and transfer of the
Sprint Venture Interests to DT and FT as contemplated hereunder shall be borne
by the Party on whom the applicable statute, law or regulation imposes the
primary liability for the payment of such taxes, duties, fees or other charges,
and the Party that has primary liability for any such tax, duty, fee or other
charge shall indemnify and hold harmless each other Party from and against any
liability with respect to such tax, duty, fee or other charge that is borne by
such other Party.
(c) Sprint and Sprint Sub, jointly and severally, agree to indemnify and
hold harmless DT, FT, any Permitted Assignee, the Joint Venture, their
Affiliates, successors, assigns, officers, directors, employees and agents
against any Tax Liability that is the obligation of Sprint under Section 7.01(a)
hereof.
(d) DT and FT agree to indemnify and hold harmless Sprint, Sprint Sub, any
Permitted Assignee, the Joint Venture, their Affiliates, successors, assigns,
officers, directors, employees and agents against any Tax Liability that results
from (i) the transfer by DT or FT prior to or concurrent with the Closing of any
of their Venture Interests or any of their rights or obligations under this
Agreement pursuant to Section 10.07 hereof or (ii) the formation of any JV
Entity pursuant to the exception for the formation of a Wholly Owned Subsidiary
of another JV Entity set forth in paragraph 12 of Schedule IV.
(e) Each indemnifying Party also agrees to indemnify and hold harmless each
indemnified Party against any loss, damage, liability or expense, including
reasonable fees for attorneys and other outside consultants, incurred in
contesting or otherwise in connection with any Taxes for which such indemnifying
Party has an obligation under this Section 7.01.
(f) Payment by an indemnifying Party of any amounts due under this Article
VII in respect of Taxes shall be made at least three Business Days before an
amount indemnified against under this Article VII is due to a taxing authority.
If liability under this Article VII is in respect of costs or expenses other
than Taxes, payment by the indemnifying Party of any amounts due under this
Article VII shall be made within five Business Days after the date when such
indemnifying Party has been notified that it or an Affiliate has a liability for
a determinable amount under this Article VII and is provided with calculations
or other materials supporting such liability.
(g) All obligations contained in this Article VII shall expressly survive
the Closing Date notwithstanding any provision herein to the contrary.
SECTION 7.02. Miscellaneous. (a) The Parties agree to treat all payments
made by any of them to or for the benefit of the other Parties under this
Article VII, under other indemnity provisions of this Agreement and for any
misrepresentations or breaches of warranties or covenants, as adjustments to the
Purchase Price.
(b) All obligations and liabilities of the Parties under the Tax Matters
Agreement, dated January 31, 1996, shall remain in effect for all taxable
periods through the Closing Date. Notwithstanding any provision of Article V
hereof to the contrary, Sprint and Sprint Sub shall continue to have the same
rights and obligations under the Tax Matters Agreement concerning decisions by
or relating to the Joint Venture and any JV Entity through the Closing Date as
Sprint and Sprint Sub had immediately prior to the Signing Date. Except as
otherwise provided above, the Tax Matters Agreement shall be terminated
effective as of the Closing Date.
(c) From and after the Signing Date, Sprint and Sprint Sub shall not
without the prior written consent of DT and FT (which consent will not be
unreasonably withheld) make, or cause or permit to be made, any Tax election
that would affect the Joint Venture or any of its Subsidiaries. For purposes of
this Section 7.02(c), if DT or FT withhold consent, they will be deemed to have
reasonably withheld such consent if the tax election would, in the opinion of
outside counsel to DT or FT, have a substantial risk of imposing a tax cost on
DT, FT, Atlas or the Joint Venture; provided, however, that if Sprint and Sprint
Sub shall indemnify DT, FT, Atlas and the Joint Venture from and against any
potential tax cost arising in connection with such election, then DT and FT
shall consent to the making of such Tax election.
(d) For purposes of this Article VII, "DT", "FT", "Sprint" and "Sprint
Sub", respectively, shall include each member of the affiliated group of
corporations of which it is or becomes a member (other than the Joint Venture
and Subsidiaries of the Joint Venture, except to the extent expressly
referenced).
(e) Each JV Entity that is treated as a partnership for U.S. income tax
purposes shall close its books with respect to the transfer of the interest of
Sprint and Sprint Sub on the Closing Date as required by Section 706(c)(2)(A) of
the Internal Revenue Code of 1986, as amended. Each such JV Entity shall
prepare, consistent in all material respects with past practice in such regard
(except to the extent that such JV Entity is advised by an independent tax
professional of recognized standing that a deviation from past practice with
respect to a given issue is required), and submit to Sprint, within 120 days
after the Closing Date, drafts of the proposed U.S. federal income tax return
and applicable U.S. state income tax returns of such JV Entity for review and
comment by Sprint. The Parties shall resolve any differences with respect to
such returns and each JV Entity shall file such U.S. federal income tax return
and each applicable U.S. state income tax return not later than the due date
thereof (including extensions). Following the Signing Date, Sprint and Sprint
Sub shall, at their own expense, be entitled to participate fully in the
preparation of any audit or other proceedings with respect to any U.S. federal
and state income tax returns that were filed by JV Entities that are treated as
partnerships for U.S. income tax purposes which relate to taxable periods ending
on or before the Closing Date.
(f) The Parties agree that the Purchase Price shall be allocated among the
Sprint Venture Interests for all U.S. federal income tax purposes in the manner
set forth in Schedule III.
(g) Between the Signing Date and the Closing Date and following the Closing
Date, the Parties shall cooperate fully with each other in providing access to
and copies of all books and records and other information of the JV Entities as
may reasonably be requested in connection with all applicable tax filings,
compliance burdens, audits and litigation. Such cooperation shall include the
retention and production of all books, records and other information that may
reasonably be deemed relevant to any tax audit, litigation or other proceeding
and making employees available on a mutually convenient basis to provide
additional information and explanation of any material provided hereunder.
ARTICLE VIII
INDEMNIFICATION
SECTION 8.01. Survival of Representations and Warranties. The
representations and warranties of the Parties contained in this Agreement shall
survive until the third anniversary of the Closing Date, except that all
representations and warranties contained in Section 4.04 shall survive
indefinitely. If written notice of a claim has been given prior to the
expiration of the applicable representations and warranties by any Party, then
the relevant representations and warranties of the other Parties shall survive
as to such claim, until such claim has been finally resolved.
SECTION 8.02. Indemnification. (a) Atlas, FT, DT, NAB, a Permitted Assignee
of either of them, the Joint Venture, their respective Affiliates and their
respective successors and assigns, officers, directors, employees, agents and
Affiliates shall be indemnified and held harmless by Sprint and Sprint Sub,
jointly and severally, for any and all Liabilities, losses, damages, claims,
costs and expenses, interest, awards, judgments and penalties (including
attorneys' fees and expenses) actually suffered or incurred by them (including
any Action brought or otherwise initiated by any of them) (hereinafter, a
"Purchaser Loss") arising out of or resulting from:
(i) the breach of any representation or warranty made by Sprint or
Sprint Sub contained in this Agreement; or
(ii) the breach of any covenant or agreement by Sprint or Sprint Sub
contained in this Agreement.
(b) Sprint, Sprint Sub, their respective Affiliates, successors and assigns
and the officers, directors, employees and agents of Sprint, Sprint Sub, their
Affiliates and their successors and assigns shall be indemnified and held
harmless by FT for any and all Liabilities, losses, damages, claims, costs and
expenses, interest, awards, judgments and penalties (including attorneys' fees
and expenses) actually suffered or incurred by them (including any Action
brought or otherwise initiated by any of them) (hereinafter, a "Seller Loss",
and each of a Seller Loss and a Purchaser Loss is hereinafter referred to as a
"Loss" with respect to such Party) arising out of or resulting from:
(i) the breach of any representation or warranty made by FT contained
in this Agreement; or
(ii) the breach of any covenant or agreement by FT contained in this
Agreement.
(c) Sprint, Sprint Sub, their respective Affiliates, successors and assigns
and the officers, directors, employees and agents of Sprint, Sprint Sub, their
Affiliates and their successors and assigns shall be indemnified and held
harmless by DT for Seller Losses arising out of or resulting from:
(i) the breach of any representation or warranty made by DT or NAB
contained in this Agreement; or
(ii) the breach of any covenant or agreement by DT or NAB contained in
this Agreement.
(d) Sprint, Sprint Sub, their respective Affiliates, successors and assigns
and the officers, directors, employees and agents of Sprint, Sprint Sub, their
Affiliates and their successors and assigns shall be indemnified and held
harmless by FT and DT, severally, to the extent of 50% each, and not jointly,
for Seller Losses arising out of or resulting from:
(i) the breach of any representation or warranty made by Atlas
contained in this Agreement; or
(ii) the breach of any covenant or agreement of Atlas contained in
this Agreement.
(e) Whenever a claim shall arise for indemnification under this Article
VIII, the Party entitled to indemnification (the "Indemnified Party") shall give
notice to the other Party (the "Indemnifying Party") of any matter that the
Indemnified Party has determined has given or could give rise to a right of
indemnification under this Agreement promptly, but in no event later than 60
days after the Indemnified Party first learns of such claim, stating the amount
of the Loss, if known, and method of computation thereof, and containing a
reference to the provisions of this Agreement in respect of which such right of
indemnification is claimed or arises. The obligations and Liabilities of the
Indemnifying Party under this Article VIII with respect to Losses arising from
claims of any third-party which are subject to the indemnification provided for
in this Article VIII ("Third-Party Claims") shall be governed by and contingent
upon the following additional terms and conditions: if an Indemnified Party
shall receive notice of any Third-Party Claim, the Indemnified Party shall give
the Indemnifying Party notice of such Third-Party Claim following receipt by the
Indemnified Party of such notice in the time frame provided above; provided,
however, that the failure to provide, or any delay in providing, such notice
shall not release the Indemnifying Party from any of its obligations under this
Article VIII, except to the extent that it is materially prejudiced by such
failure or delay, and shall not relieve the Indemnifying Party from any other
obligation or Liability that it may have to any Indemnified Party otherwise than
under this Article VIII. The Indemnifying Party shall be entitled to assume and
control the defense of such Third-Party Claim at its expense and through counsel
of its choice if it gives notice of its intention to do so to the Indemnified
Party within five days of the receipt of such notice from the Indemnified Party;
provided, however, that if there exists or is reasonably likely to exist a
conflict of interest that would make it inappropriate in the judgment of the
Indemnified Party, in its sole and absolute discretion, for the same counsel to
represent both the Indemnified Party and the Indemnifying Party, then the
Indemnified Party shall be entitled to retain its own counsel, in each
jurisdiction for which the Indemnified Party determines that counsel is
required, at the expense of the Indemnifying Party. In the event the
Indemnifying Party exercises the right to undertake any such defense against any
such Third-Party Claim as provided above, the Indemnified Party shall cooperate
with the Indemnifying Party in such defense and make available to the
Indemnifying Party, at the Indemnifying Party's expense, all witnesses,
pertinent records, materials and information in the Indemnified Party's
possession or under the Indemnified Party's control relating thereto as is
reasonably required by the Indemnifying Party. Similarly, in the event the
Indemnified Party is, directly or indirectly, conducting the defense against any
such Third-Party Claim, the Indemnifying Party shall cooperate with the
Indemnified Party in such defense and make available to the Indemnified Party,
at the Indemnifying Party's expense, all such witnesses, records, materials and
information in the Indemnifying Party's possession or under the Indemnifying
Party's control relating thereto as is reasonably required by the Indemnified
Party. No such Third-Party Claim may be settled by the Indemnifying Party or the
Indemnified Party without the prior written consent of the other.
Notwithstanding the foregoing, any claim for indemnity in respect of matters
covered by Article VII shall be subject to the provisions of Article VII and not
this Section 8.02(e).
ARTICLE IX
TERMINATION
SECTION 9.01. Termination. The Purchase Provisions may be terminated and
the other transactions contemplated by the Purchase Provisions may be abandoned
at any time prior to the Closing Date as follows:
(a) by mutual written consent of the Parties;
(b) by any Party if the Closing shall not have occurred by December
31, 2000; or
(c) by any Party in the event that any Governmental Authority shall
have issued an order, decree or ruling or taken any other action
restraining, enjoining or otherwise prohibiting the consummation of the
transactions contemplated by this Agreement and such order, decree, ruling
or other action shall have become final and nonappealable.
SECTION 9.02. Effect of Termination. In the event of termination of the
Purchase Provisions pursuant to Section 9.01:
(a) Except as otherwise provided in the last sentence of this Section
9.02, the Purchase Provisions shall forthwith become void, there shall be
no liability relating to such provisions or the transactions contemplated
by such provisions on the part of the Parties or any of their respective
officers or directors, and all rights and obligations of each Party
contained in the Purchase Provisions shall cease except as set forth in
Section 10.02;
(b) the Surviving Provisions shall survive and remain in full force
and effect;
(c) (i) Article 10 of the JVA shall continue to not apply to Sprint or
any of its Affiliates, (ii) Sprint and its Affiliates will continue not to
have any obligation under Article 10 of the JVA, (iii) Sprint will have no
right to enforce the provisions contained in Article 10 of the JVA, and
(iv) no Person will have any right to enforce Article 10 against Sprint or
any of its Affiliates;
(d) at any time between the date of termination of the Purchase
Provisions (the "Purchase Provisions Termination Date") and the earliest of
(i) 90 days after the Purchase Provisions Termination Date, (ii) December
31, 2000 and (iii) the date that FT and DT notify Sprint that they elect
not to pursue a sale of the Sprint Venture Interests to a third party
pursuant to this Section 9.02(d) (such earliest date being the "Interim
Sale Termination Date"), Sprint agrees to sell the Sprint Venture Interests
to any third party only at the request of FT or DT, so long as:
(A) such third party pays Sprint the Purchase Price or an amount
in excess thereof (the "Third Party Purchase Price");
(B) such third party causes the Joint Venture to pay Sprint any
amounts due Sprint under the Sprint Stockholder Loans and any other
debt obligations of the Joint Venture to Sprint;
(C) the terms and conditions of such sale and purchase include
the requirement set forth in Section 9.02(d)(BB) hereof;
(D) a closing of the sale of such Sprint Venture Interests on a
date prior to December 31, 2000 is reasonably likely and the related
purchase agreement with such third party provides that such a closing
must occur by December 31, 2000; and
(E) Sprint is otherwise treated in a manner that is consistent
with the terms and conditions of this Agreement, including the tax
provisions under this Agreement.
If Sprint sells the Sprint Venture Interests to a third party pursuant to
this Section 9.02(d), then the following provisions shall apply:
(AA) if the Third Party Purchase Price is greater than the
Purchase Price, Sprint shall pay to each of FT and DT an amount equal
to five percent (5%) of the difference between (1) the Third Party
Purchase Price and (2) the Purchase Price; and
(BB) the purchase agreement with such third party shall provide
that if the third party sells the Sprint Venture Interests within one
year after purchasing the Sprint Venture Interests from Sprint and the
amount received by the third party from the sale of the Sprint Venture
Interests is greater than the Third Party Purchase Price, the third
party shall pay to Sprint an amount equal to ninety percent (90%) of
the difference between (1) the amount received by such third party
from the sale of the Sprint Venture Interests and (2) the Third Party
Purchase Price;
(e) if Sprint does not sell the Sprint Venture Interests to a third
party prior to the Interim Sale Termination Date pursuant to Section
9.02(d) hereof, at any time on or after December 31, 2000, any of Sprint,
FT or DT may trigger the Exit Arrangements set forth in Annex C hereto and
none of the Parties will have any right or basis for objection to the
implementation of such Exit Arrangements; and
(f) at the Interim Sale Termination Date, all Sprint representatives
who resigned from the Governing Boards pursuant to Section 5.01(b) shall be
reappointed to such Governing Boards and, if requested by Sprint, FT and DT
shall designate those individuals requested by Sprint to become members of
the Governing Boards and take such other action as is required to cause
such individuals to become members of the Governing Boards so that the
governance rights of FT, DT and Sprint in the Joint Venture are equivalent
to the rights of such Parties immediately prior to entering into this
Agreement.
Nothing in this Section 9.02 shall relieve any Party from liability for the
breach of any of its representations, warranties, covenants or agreements set
forth in this Agreement.
ARTICLE X
GENERAL PROVISIONS
SECTION 10.01. Waiver. Any Party to this Agreement may (i) extend the time
for the performance of any of the obligations or other acts of the other
Parties, (ii) waive any inaccuracies in the representations and warranties of
the other Parties contained herein or in any document delivered by the other
Parties pursuant hereto or (iii) waive compliance with any of the agreements or
conditions of the other Parties contained herein. Any such extension or waiver
shall be valid only if set forth in writing signed by the Party to be bound
thereby. Any waiver of any term or condition shall not be construed as a waiver
of any subsequent breach or a subsequent waiver of the same term or condition,
or a waiver of any other term or condition, of this Agreement. The failure of
any Party to assert any of its rights hereunder shall not constitute a waiver of
any of such rights.
SECTION 10.02. Expenses. Except as otherwise specified in this Agreement,
all costs and expenses, including fees and disbursements of counsel, financial
advisors and accountants, incurred in connection with this Agreement and the
transactions contemplated hereby shall be paid by the Party incurring such costs
and expenses, whether or not the Closing shall have occurred.
SECTION 10.03. Notices. All notices, requests, claims, demands and other
communications hereunder shall be in writing, in English, and shall be given or
made by delivery in person, by courier service, by telecopy, by e-mail or by
registered or certified mail (postage prepaid, return receipt requested) to the
respective Parties at the following addresses (or at such other address for a
Party as shall be specified in a notice given in accordance with this Section
10.03):
a) If to FT:
6 place d'Alleray
75505 Paris Cedex 15
France
Telephone: 33-1-44-44-01-59
Telecopy: 33-1-44-44-01-75
Attention: Senior Executive Vice President and
Chief Financial Officer
(e-mail: [email protected])
with copies (which shall not constitute notice to FT) to:
6 place d'Alleray
75505 Paris Cedex 15
France
Telephone: 33-1-44-44-87-46
Telecopy: 33-1-44-12-02-13
Attention: Chief Legal and Tax Officer
(e-mail: [email protected])
and
Shearman & Sterling
599 Lexington Avenue
New York, New York 10022
U.S.A.
Telephone: 1 (212) 848-7058
Telecopy: 1 (212) 848-4051
Attention: Alfred J. Ross, Esq.
(e-mail: [email protected])
b) If to DT:
Friedrich-Ebert-Allee 140
D-53113 Bonn
Germany
Telephone: 49-228-181-4000
Telecopy: 49-228-181-8602
Attention: Jeffrey Hedberg
(e-mail: [email protected])
with a copy (which shall not constitute notice to DT) to:
Cleary, Gottlieb, Steen & Hamilton
One Liberty Plaza
New York, New York 10006
U.S.A.
Telephone: 1 (212) 225-2670
Telecopy: 1 (212) 225-3999
Attention: Robert P. Davis, Esq.
(e-mail: [email protected])
(c) If to NAB:
NAB Nordamerika Beteiligungs Holding GmbH
c/o Deutsche Telekom AG
Friedrich-Ebert-Allee 140
53113 Bonn
Germany
Telephone: 49-228-181-38120
Telecopy: 49-228-181-8750
Attention: Mr. Heinz Klesing, Managing Director
(e-Mail: [email protected])
with a copy (which shall not constitute notice to NAB) to:
Cleary, Gottlieb, Steen & Hamilton
One Liberty Plaza
New York, New York 10006
U.S.A.
Telephone: 1 (212) 225-2000
Telecopy: 1 (212) 225-3999
Attention: Robert P. Davis, Esq.
(e-mail: [email protected])
(d) If to Sprint or Sprint Sub:
2330 Shawnee Mission
Parkway, East Wing
Westwood, Kansas 66205
U.S.A.
Telephone: 1 (913) 624-8440
Telecopy: 1 (913) 624-8426
Attention: General Counsel
(e-mail: [email protected])
with a copy (which shall not constitute notice to Sprint or
Sprint Sub) to:
King & Spalding
191 Peachtree Street
Atlanta, Georgia 30303
U.S.A.
Telephone: 1 (404) 572-4903
Telecopy: 1 (404) 572-5146
Attention: Bruce N. Hawthorne, Esq.
(e-mail: [email protected])
(e) If to Atlas, then to each of DT and FT as provided above, in care
of Atlas.
(f) If to any of the JV Entities set forth on Schedule II hereto:
Global One
12490 Sunrise Valley Drive
Reston, VA U.S.A. 20196-0001
Telephone: (703) 689-7035
Telecopy: (703) 787-6635
Attention: Detlef Spang
(e-mail: [email protected])
with a copy (which shall not constitute notice to a JV Entity) to
each of DT and FT, as provided above, and to:
Global One
12490 Sunrise Valley Drive
Reston, VA U.S.A. 20196-0001
Telephone: (703) 689-5662
Telecopy: (703) 787-5321
Attention: General Counsel
(e-mail: [email protected])
All such notices shall be deemed to have been duly given or made upon receipt;
provided, however, that a notice sent via telecopy or e-mail shall only be
deemed to have been duly given or made on the date that the sender thereof
confirms it via courier service or by registered or certified mail (return
receipt requested).
SECTION 10.04. Headings. The descriptive headings contained in this
Agreement are for convenience of reference only and shall not affect in any way
the meaning or interpretation of this Agreement.
SECTION 10.05. Severability. If any term or other provision of this
Agreement is invalid, illegal or incapable of being enforced by any Law or
public policy, all other terms and provisions of this Agreement shall
nevertheless remain in full force and effect so long as the economic or legal
substance of the transactions contemplated hereby is not affected in any manner
materially adverse to any Party. Upon such determination that any term or other
provision is invalid, illegal or incapable of being enforced, the Parties shall
negotiate in good faith to modify this Agreement so as to effect the original
intent of the Parties as closely as possible in an acceptable manner in order
that the transactions contemplated hereby are consummated as originally
contemplated to the greatest extent possible.
SECTION 10.06. Entire Agreement. This Agreement, together with the
agreements referred to herein (including the Settlement Agreement), constitutes
the entire agreement of the Parties with respect to the subject matter hereof
and thereof and supersedes all prior agreements and undertakings, both written
and oral, among the Parties with respect to the subject matter hereof and
thereof.
SECTION 10.07. Assignment. This Agreement may not be assigned by any Party
without the express written consent of all other Parties. Notwithstanding any of
the foregoing nor any provision set forth in the JVA, (a) each of FT and DT may
assign its rights to purchase the Sprint Venture Interests pursuant to Article
II of this Agreement to one or more of its Wholly Owned Subsidiaries, (b) each
of FT and DT may assign its rights to purchase the Sprint Venture Interests
under Article II of this Agreement to Atlas or to the other of FT and DT or to a
Wholly Owned Subsidiary of such other Party (an assignee pursuant to (a) or (b)
herein being referred to as a "Permitted Assignee"), and (c) each of Sprint and
Sprint Sub may transfer any of the Sprint Venture Interests to a Wholly Owned
Subsidiary of Sprint or Sprint Sub; provided, however, that in the case of an
assignment described in (a), the following conditions shall be satisfied: (i)
the assigning Party shall give notice of such assignment to the other Parties,
(ii) such assignment shall, by its terms, not relieve the assigning Party of its
obligations contained in this Agreement and (iii) the closing of such assignment
shall not take place earlier than the Closing; provided further that in the case
of an assignment described in (b), the following additional conditions shall be
satisfied: (i) FT or DT shall have provided the other with a prior written
consent to such assignment and (ii) one of FT or DT shall at all times remain
liable for satisfaction of the Purchase Price and (iii) the closing of such
assignment shall not take place earlier than the Closing; provided further that
in the case of a transfer described in (c), the following conditions shall be
satisfied: (i) the transferring Party shall give notice of such transfer to the
other Parties and (ii) such transfer shall, by its terms, not relieve the
transferring Party of its obligations contained in this Agreement. This
Agreement shall be binding upon, inure to the benefit of, and be enforceable by,
the Parties and their respective successors and permitted assigns.
SECTION 10.08. No Third-Party Beneficiaries. Except for the provisions of
Article VII and Article VIII relating to indemnified parties, this Agreement
shall be binding upon and inure solely to the benefit of the Parties 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.
SECTION 10.09. Amendment. This Agreement may not be amended or modified
except (a) by an instrument in writing signed by the Parties or (b) by a waiver
in accordance with Section 10.01.
SECTION 10.10. Governing Law and Jurisdiction. (a) This Agreement shall be
governed by and construed in accordance with the internal laws of the State of
New York. Except in accordance with the last sentence of this Section 10.10(a),
all disputes, actions or proceedings arising out of or relating to this
Agreement, or any of the transactions contemplated hereby, 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) that such court does not have subject matter
jurisdiction over such dispute, action or proceeding, in the courts of the State
of New York located in the Borough of Manhattan. Each Party (i) consents to
submit itself to the personal jurisdiction of each of the aforesaid courts and
(ii) agrees that it will not bring any action, suit or proceeding arising out of
or relating to this Agreement, or any of the transactions contemplated hereby,
in any court other than as set forth above. All disputes, actions or proceedings
arising out of or relating to the Transition Plan or the Distribution Agreement
shall be resolved as provided therein.
(b) Each of Atlas, FT and DT agrees that, to the extent that it or any of
its property is or becomes entitled at any time to any immunity on the grounds
of sovereignty or otherwise based upon its status as an agency or
instrumentality of government from any legal action, suit or proceeding or from
setoff or counterclaim relating to this Agreement from the jurisdiction of any
competent court, from service of process, from attachment prior to judgment,
from attachment in aid of execution of a judgment, from execution pursuant to a
judgment or arbitral award, or from any other legal process in any jurisdiction,
it, for itself and its property expressly, irrevocably and unconditionally
waives, and agrees not to plead or claim, any such immunity with respect to such
matters arising with respect to this Agreement or the subject matter hereof
(including any obligation for the payment of money). Each of Atlas, FT and DT
agrees that the waiver in this provision is irrevocable and is not subject to
withdrawal in any jurisdiction or under any statute, including the Foreign
Sovereign Immunities Act, 28 U.S.C. S1602 et seq. The foregoing waiver shall
constitute a present waiver of immunity at any time any action is initiated
against Atlas, FT or DT with respect to this Agreement.
SECTION 10.11. Interpretation. In the event of any conflict between or
among the provisions of this Agreement and the JVA, the terms of this Agreement
shall govern.
SECTION 10.12. Counterparts. This Agreement may be executed and delivered
(including by facsimile transmission) in one or more counterparts, and by the
different Parties hereto in separate counterparts, each of which when executed
shall be deemed to be an original but all of which taken together shall
constitute one and the same agreement.
SECTION 10.13. Specific Performance. The Parties agree that irreparable
damage would occur in the event that Article II or Article V of this Agreement
is not performed in accordance with the terms hereof and that the Parties shall,
to the extent permitted by applicable Law, be entitled to seek from the United
States District Court for the Southern District of New York or, in the event
(but only in the event) that such court does not have subject matter
jurisdiction over such dispute, action or proceeding, in the courts of the State
of New York located in the Borough of Manhattan specific performance of the
terms hereof relating to Article II or Article V, in addition to any other
remedy at law or equity.
SECTION 10.14. No Partnership. Nothing in this Agreement shall authorize
any Party to act as an agent or representative of any of the others (or any of
them) or to authorize any such Party to assume or create an obligation on behalf
of the other (or others), except as expressly provided in this Agreement.
SECTION 10.15. Terms Generally. References in this Agreement to articles,
sections, paragraphs, clauses, schedules, annexes and exhibits are to articles,
sections, paragraphs, clauses, schedules, annexes and exhibits in or to this
Agreement unless otherwise indicated. Whenever the context may require, any
pronoun includes the corresponding masculine, feminine and neuter forms. Any
term defined by reference to any agreement, instrument or document has the
meaning assigned to it whether or not such agreement, instrument or document is
in effect. The words "include", "includes" and "including" are deemed to be
followed by the phrase "without limitation". Unless the context otherwise
requires, any agreement, instrument or other document defined or referred to
herein refers to such agreement, instrument or other document as from time to
time amended, supplemented or otherwise modified from time to time. Unless the
context otherwise requires, references herein to any Person include its
successors and assigns.
SECTION 10.16. Public Announcements. Any Party shall have the right to
issue a press release or other public communication relating to this Agreement,
without consultation with any other Party; provided, however, that any initial
press release issued by a Party in connection with this Agreement shall not be
inconsistent with the draft press release with respect to the provisions of this
Agreement previously delivered by Sprint to FT, DT and NAB.
<PAGE>
IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed
as of the date first written above by their respective officers thereunto duly
authorized.
FRANCE TELECOM S.A.
By: /s/ Jacques Champeaux
----------------------
Name: Jacques Champeaux
Title: Group Executive President,
Large Business Division
DEUTSCHE TELEKOM AG
By: /s/ Jeffrey A. Hedberg
----------------------
Name: Jeffrey A. Hedberg
Title: Board of Management, International
NAB NORDAMERIKA BETEILIGUNGS
HOLDING GMBH
By: /s/ Heinz Klesing
------------------
Name: Heinz Klesing
Title: Managing Director
By: /s/ Dr. Joachim Peckert
-----------------------
Name: Dr. Joachim Peckert
Title: Managing Director
ATLAS TELECOMMUNICATIONS, S.A.
By: /s/ Thomas Zimmer
-----------------
Name: Thomas Zimmer
Title: Co-CEO
By: /s/ Bruno Brochier
-----------------
Name: Bruno Brochier
Title: Co-Chairman
SPRINT CORPORATION
By: /s/ Ronald T. LeMay
-------------------
Name: Ronald T. LeMay
Title: President and Chief
Operating Officer
SPRINT GLOBAL VENTURE, INC.
By: /s/ Ronald T. LeMay
-------------------
Name: Ronald T. LeMay
Title: President and Chief
Operating Officer
GLOBAL ONE COMMUNICATIONS, L.L.C.
By: /s/ Michel Huet
---------------
Name: Michel Huet
Title: Acting CEO
GLOBAL ONE COMMUNICATIONS GBN HOLDING, LIMITED
By: /s/ Michel Huet
---------------
Name: Michel Huet
Title: Acting CEO
GLOBAL ONE COMMUNICATIONS WORLD OPERATIONS, LIMITED
By: /s/ Michel Huet
---------------
Name: Michel Huet
Title: Acting CEO
GLOBAL ONE COMMUNICATIONS WORLD HOLDING, B.V.
By: /s/ Michel Huet
---------------
Name: Michel Huet
Title: Acting CEO
GLOBAL ONE COMMUNICATIONS WORLD SERVICE, B.V.
By: /s/ Michel Huet
---------------
Name: Michel Huet
Title: Acting CEO
GLOBAL ONE COMMUNICATIONS EUROPE, L.L.C.
By: /s/ Michel Huet
---------------
Name: Michel Huet
Title: Acting CEO
GLOBAL ONE COMMUNICATIONS HOLDING, B.V.
By: /s/ Michel Huet
---------------
Name: Michel Huet
Title: Acting CEO
GLOBAL ONE COMMUNICATIONS SERVICE, B.V.
By: /s/ Michel Huet
---------------
Name: Michel Huet
Title: Acting CEO
GLOBAL ONE COMMUNICATIONS OPERATIONS, LIMITED
By: /s/ Michel Huet
---------------
Name: Michel Huet
Title: Acting CEO
<PAGE>
ANNEX B
MODIFICATIONS TO THE JOINT VENTURE AGREEMENT
1. This Agreement will not be deemed to be an Operative Agreement under the
JVA or this Agreement.
2. Section 15.14(a)(i) is hereby deleted in its entirety; provided, however,
that upon such time that the Purchase Provisions are terminated pursuant to
Article IX hereof, such Section shall be reinstated.
3. New Section 10.8 and Section 10.9 shall be added as follows:
"Section 10.8. Inapplicable to Sprint. Notwithstanding anything else in
this Agreement, from and after January 21, 2000, (a) this Article 10 shall
not apply to Sprint or any of its Affiliates, (b) neither Sprint nor any of
its Affiliates shall have any obligation under this Article 10, (c) neither
Sprint nor any of its Affiliates will have any right to enforce the
provisions in this Article 10, and (d) no Person will have any right to
enforce this Article 10 against Sprint or any of its Affiliates."
"Section 10.9. Inapplicable to a withdrawing party. Notwithstanding
anything else in this Agreement, (a) this Article 10 shall not apply to the
withdrawing party identified as such in the FT/DT Transactions (as defined
in the Master Transfer Agreement, dated January 21, 2000 (the "MTA")) or
any of its Affiliates from and after the date, specified in the FT/DT
Transition Plan (as defined in the MTA), (b) after such date neither such
withdrawing party nor its Affiliates shall have any obligation under this
Article 10, and (c) after such date, neither such withdrawing party nor its
Affiliates will have any right to enforce the provisions in this Article 10
against FT, DT, Atlas or any of their Affiliates."
4. The Parties hereby acknowledge and agree that the consummation of the
WorldCom Merger will not be considered a breach of the JVA.
<PAGE>
EXHIBIT 2
FORM OF PROXY
THIS PROXY (this "Proxy") dated as of January 21, 2000, is entered into by
France Telecom, a societe anonyme duly organized under the laws of France
("FT"), Deutsche Telekom AG, an Aktiengesellschaft duly organized under the laws
of Germany ("DT"), NAB Nordamerika Beteiligungs Holding GmbH ("NAB"), a limited
liability company duly organized under the laws of Germany and a wholly owned
subsidiary of DT, Sprint Corporation ("Sprint"), a Kansas corporation, William
T. Esrey, the Chairman and Chief Executive Officer of Sprint, Ronald T. LeMay,
the President and Chief Operating Officer of Sprint, Arthur B. Krause, the
Executive Vice President and Chief Financial Officer of Sprint, and J. Richard
Devlin, the Executive Vice President and General Counsel of Sprint (Mr. Esrey,
Mr. LeMay, Mr. Krause and Mr. Devlin, together with any successor grantee
appointed under Section 1.3, are referred to herein collectively as the
"Grantees"). FT, DT, NAB, Sprint and the Grantees are collectively referred to
herein as the "Parties."
W I T N E S S E T H:
--------------------
WHEREAS, FT, DT, NAB and Sprint propose to execute on the date hereof a
Master Transfer Agreement (the "Master Transfer Agreement") among FT, DT, NAB,
Sprint, Sprint Global Venture, Inc., Atlas Telecommunications S.A., and the JV
Entities set forth on Schedule II to the Master Transfer Agreement;
WHEREAS, FT, DT, NAB and Sprint have agreed to enter into this Proxy
pursuant to Section 5.03(a) of the Master Transfer Agreement as a condition to
Sprint's willingness to enter into the Master Transfer Agreement; and
WHEREAS, capitalized terms used in this Proxy and not otherwise defined in
this Proxy have the respective meanings given to such terms in the Master
Transfer Agreement.
NOW, THEREFORE, in contemplation of the foregoing and in consideration of
the mutual agreements contained herein, and intending to be legally bound
hereby, the Parties agree as follows:
1. Proxy.
1.1 Grant. As to all Subject Shares, each of FT, DT and NAB hereby
severally and not jointly appoints each of the Grantees, or any one of them
acting alone, with full power of substitution, during the term of this Proxy, as
proxy for FT, DT and NAB, to vote the Subject Shares or cause the Subject Shares
to be voted, in the name, place and stead of FT, DT and NAB (or any controlled
Affiliate of FT or DT or any Qualified Subsidiary that is owned by both FT
and/or its controlled Affiliates and DT and/or its controlled Affiliates to
which any Subject Shares may be transferred), at any Sprint Stockholders'
Meeting (including pursuant to any class vote required in connection therewith)
or at any adjournment or adjournments thereof:
(a) for approval and adoption of the Amended WorldCom Merger
Agreement (as it may be amended by any amendment thereto that does not
have any of the effects enumerated in clauses (A) through (D) of
Section 1.4(a) of this Proxy) and the WorldCom Merger, unless the
Sprint Board of Directors has terminated the Amended WorldCom Merger
Agreement;
(b) for approval and adoption of the FT/DT Amendments;
(c) for approval of any other matter that has been recommended by
the Sprint board of directors (other than the disposition of assets or
businesses) and that is necessary to implement the matters set forth
in the immediately preceding clauses (a) and (b);
(d) for approval and adoption of the ESPP Amendments;
(e) against approval or adoption of any proposal made in
opposition to or competition with the WorldCom Merger and the
transactions contemplated by the Amended WorldCom Merger Agreement
that has not been approved or recommended by the Sprint board of
directors; and
(f) in the discretion of the Grantees, with respect to any
proposed adjournment or adjournments of a Sprint Stockholders'
Meeting.
1.2 Nature of Proxy. THE PROXY GRANTED BY THIS AGREEMENT IS
IRREVOCABLE (EXCEPT TO THE EXTENT PROVIDED FOR IN SECTION 1.4 OR SECTION 2) AND
COUPLED WITH AN INTEREST FOR ALL PURPOSES OF SECTION 17-6502 OF THE KANSAS
GENERAL CORPORATION CODE.
1.3 Power of Substitution. A Grantee's appointment hereunder shall
terminate at such time as such Grantee ceases to be an officer of Sprint, at
which time the appointment pursuant to this Proxy in favor of such Grantee shall
automatically be granted, without any further act by FT, DT, NAB or their
controlled Affiliates (including any Qualified Subsidiary that is owned by both
FT and/or its controlled Affiliates and DT and/or its controlled Affiliates), to
such Grantee's successor officer of Sprint and thereafter to each subsequent
successor (each of which persons shall be deemed to be a Grantee hereunder).
Subject to Section 1.4 and Section 2, at the request of Sprint or the Grantees
from time to time, each of FT, DT and NAB shall confirm, and shall cause each of
its controlled Affiliates (including any Qualified Subsidiary that is owned by
both FT and/or its controlled Affiliates and DT and/or its controlled
Affiliates) holding any Subject Shares, to confirm, the appointment of each
successor officer of Sprint as a Grantee for all purposes under this Proxy.
1.4 Termination; Condition Precedent. This Proxy shall terminate and
be of no further force and effect on April 30, 2001. It is a condition precedent
to the effectiveness of this Proxy as it relates to the matters set forth in
Section 1.1(a), Section 1.1(c) (to the extent relating to Section 1.1(a)) and
Section 1.1(e) that the Amended WorldCom Merger Agreement shall have been duly
authorized by the boards of directors of WorldCom and Sprint and shall have been
duly executed and delivered by the parties thereto. In addition, this Proxy
shall terminate and be of no further force and effect with respect to the
matters set forth in Section 1.1(a), Section 1.1(c) (to the extent relating to
Section 1.1(a)), Section 1.1(e) and Section 1.1(f) (to the extent relating to
Section 1.1(a), Section 1.1(c) (to the extent relating to Section 1.1(a)) and
Section 1.1(e)) immediately upon the occurrence of either of the following
events:
(a) if at any time the Original WorldCom Merger Agreement shall
not be in full force and effect as executed on October 4, 1999, as
amended by the Amended WorldCom Merger Agreement (when so executed and
delivered), and without any further amendment or modification to the
Amended WorldCom Merger Agreement that (A) reduces the amount or
changes the nature of the consideration to be received by FT, DT or
their Affiliates in the WorldCom Merger; (B) conflicts with the rights
of FT, DT or their Affiliates under the Master Transfer Agreement; (C)
otherwise materially and adversely affects FT, DT or their Affiliates;
or (D) treats FT or DT or their Affiliates in a manner different from
other Sprint stockholders which is adverse to FT, DT or their
Affiliates; or
(b) if at any time the Consent and Assumption is not in full
force and effect in all material respects.
In the event of the transfer of any Subject Shares (including the
Existing FT Shares and the Existing NAB Shares) after the Effective Time of the
FT/DT Investment Changes to a Person that is not FT, DT or a controlled
Affiliate of FT or DT, the provisions of this Proxy, with respect to such
transferred Subject Shares, shall terminate at the time of such transfer, but
this Proxy shall continue to be applicable to all other Subject Shares that have
not been so transferred.
Notwithstanding the foregoing, unless earlier terminated in accordance
with the provisions hereof, this Proxy shall terminate and be of no further
force or effect with respect to the matters set forth in Section 1.1(a), Section
1.1(c) (to the extent relating to Section 1.1(a)) and Section 1.1(e) on the
earlier of (I) the termination of the Amended WorldCom Merger Agreement and (II)
the later of (X) December 31, 2000 and (Y) the earlier of (A) December 31, 2001
and (B) the time that the Sprint stockholders have voted on the Amended WorldCom
Merger Agreement at a Sprint Stockholders' Meeting (whether or not the WorldCom
Merger is in fact approved at that time). The provisions of this Proxy shall
terminate and be of no further force and effect with respect to Section 1.1(d)
immediately after the Sprint stockholders have voted upon the ESPP Amendments
(whether or not the ESPP Amendments are in fact approved at that time).
2. Notice of Termination Event. The Grantees covenant and agree not to
vote, and Sprint covenants and agrees not to permit the Grantees to vote, any of
the Subject Shares except in compliance with the provisions of the Proxy,
including, without limitation, Section 1.4. Sprint covenants and agrees to take
all action necessary to cause the Grantees to comply with the provisions of this
Proxy and to prevent the Grantees from taking any action that is not in
compliance with the provisions of this Proxy. Sprint covenants and agrees that
it shall promptly notify FT, DT, NAB and the Grantees if at any time Sprint
reasonably believes any of the circumstances specified in Section 1.4 has
occurred and in such instance shall not permit the Grantees to vote the Subject
Shares. In addition, if at any time any of FT, DT or NAB believes, in such
Party's reasonable good faith judgment, that any of the circumstances specified
in Section 1.4 has occurred, such Party shall be entitled to so notify Sprint
and the other Parties in writing and, following such notification to Sprint, the
Parties shall seek to reach an agreement as to the application of the provisions
of Section 1.4; provided, however, that if, at the time of a Sprint
Stockholders' Meeting, the Parties have not reached such an agreement to permit
the Grantees to vote such Subject Shares but Sprint and the Grantees reasonably
believe in good faith that such Subject Shares may be voted pursuant to this
Proxy at such Sprint Stockholders' Meeting, the Grantees may proceed to vote
such Subject Shares at such Sprint Stockholders' Meeting (without prejudice to
the provisions of the next sentence of this Section 2), unless a judicial
determination has been made by the United States District Court for the Southern
District of New York or, in the event (but only in the event) that such court
does not have subject matter jurisdiction, a court of the State of New York
located in the Borough of Manhattan, that has not been reversed on appeal, that
prohibits the Grantees from doing so. Notwithstanding any of the foregoing,
absent a final judicial determination on the merits concerning the right of the
Grantees to vote Subject Shares at such Sprint Stockholders' Meeting pursuant to
this Proxy, the operation of the provisions of this Section 2 (including the
proviso to the preceding sentence) shall not prejudice the right of a Party to
claim that a breach of the provisions of this Proxy has occurred. The Parties
agree that notice by FT, DT or NAB to Sprint pursuant to this Section shall
constitute notice to each of the Grantees, and the Grantees agree not to vote
any of the Subject Shares pursuant to this Proxy once Sprint has instructed them
not to do so pursuant to this Section 2.
3. Specific Performance. The Parties agree that irreparable damage would
occur in the event that any part of this Proxy is not performed strictly in
accordance with the terms hereof and that the Parties shall, to the extent
permitted by applicable Law, be entitled to seek from the United States District
Court for the Southern District of New York or, in the event (but only in the
event) that such court does not have subject matter jurisdiction, in the courts
of the State of New York located in the Borough of Manhattan, specific
performance of the terms hereof, in addition to any other remedy at Law or
equity.
4. Miscellaneous.
4.1 Any Party to this Proxy may (i) extend the time for the
performance of any of the obligations or other acts of the other Parties or (ii)
waive compliance with any of the agreements or conditions of the other Parties
contained herein. Any such extension or waiver shall be valid only if set forth
in writing signed by the Party to be bound thereby. Any waiver of any term or
condition shall not be construed as a waiver of any subsequent breach or a
subsequent waiver of the same term or condition, or a waiver of any other term
or condition, of this Proxy. The failure of any Party to assert any of its
rights hereunder shall not constitute a waiver of any of such rights.
4.2 All notices, requests, claims, demands and other communications
hereunder shall be in writing, in English, and shall be given or made by
delivery in person, by courier service, by telecopy, by e-mail or by registered
or certified mail (postage prepaid, return receipt requested) to the respective
Parties at the addresses specified in, and in accordance with, Section 10.03 of
the Master Transfer Agreement. Notice to Sprint shall constitute notice to all
of the Grantees. All such notices shall be deemed to have been duly given or
made upon receipt; provided, however, that a notice sent via telecopy or e-mail
shall only be deemed to have been duly given or made on the date that the sender
thereof confirms it via courier service or by registered or certified mail
(return receipt requested).
4.3 The descriptive headings contained in this Proxy are for
convenience of reference only and shall not affect in any way the meaning or
interpretation of this Proxy.
4.4 If any term or other provision of this Proxy is invalid, illegal
or incapable of being enforced by any Law or public policy, all other terms and
provisions of this Proxy shall nevertheless remain in full force and effect so
long as the economic or legal substance of the transactions contemplated hereby
is not affected in any manner materially adverse to any Party (but in no event
shall any Grantee be permitted to vote any Subject Shares in violation of
Section 1.4 or Section 2). Upon such determination that any term or other
provision is invalid, illegal or incapable of being enforced, the Parties shall
negotiate in good faith to modify this Proxy so as to effect the original intent
of the Parties as closely as possible in an acceptable manner in order that the
transactions contemplated hereby are consummated as originally contemplated.
4.5 Except as set forth in Sections 1.1 and 1.3 (in each case, as to
power of substitution), this Proxy may not be assigned by any Party without the
prior written consent of all other Parties.
4.6 This Proxy may not be amended or modified except by an instrument
in writing signed by the Parties or by a waiver in accordance with Section 4.1.
4.7 This Proxy shall be governed by and construed in accordance with
the internal laws of the State of New York (except that the Laws of the State of
Kansas shall govern any such matters contained in or relating to this Proxy
which are required to be governed by Kansas corporate law). All disputes,
actions or proceedings arising out of or relating to this Proxy, or any of the
transactions contemplated hereby, 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) that such court does not have subject matter jurisdiction over
such dispute, action or proceeding, in the courts of the State of New York
located in the Borough of Manhattan. Each Party (i) consents to submit itself to
the personal jurisdiction of each of the aforesaid courts and (ii) agrees that
it will not bring any action, suit or proceeding arising out of or relating to
this Proxy in any court other than as set forth above.
4.8 Each of FT, DT and NAB 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 Proxy 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 Proxy or the subject matter hereof
(including any obligation for the payment of money). Each of FT, DT and NAB
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. S1602 et seq. The foregoing waiver shall
constitute a present waiver of immunity at any time any action is initiated
against FT, DT or NAB with respect to this Agreement.
4.9 This Proxy, the Master Transfer Agreement and the agreements
referred to in the Master Transfer Agreement constitute the entire agreement of
the Parties with respect to the subject matter hereof and supersede all prior
agreements and undertakings, both written and oral, among the Parties with
respect to the subject matter hereof.
4.10 This Proxy shall be binding upon and inure solely to the benefit
of the Parties 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 Proxy.
4.11 This Proxy may be executed and delivered (including by facsimile
transmission) in one or more counterparts, and by the different Parties hereto
in separate counterparts, each of which when executed shall be deemed to be an
original but all of which taken together shall constitute one and the same
agreement.
4.12 Each of FT, DT and NAB will, from time to time, execute and
deliver, or cause to be executed and delivered, such additional or further
documents and take such further action as any of the Grantees or Sprint may
reasonably request and are necessary for the purpose of carrying out the purpose
of this Proxy.
<PAGE>
IN WITNESS WHEREOF, the Parties have caused this Proxy to be duly executed
as of the day and year first above written.
FRANCE TELECOM S.A.
By:_______________________________________
Name:
Title:
DEUTSCHE TELEKOM AG
By:_______________________________________
Name:
Title:
NAB NORDAMERIKA BETEILIGUNGS
HOLDING GMBH
By:_______________________________________
Name:
Title:
SPRINT CORPORATION
By:_______________________________________
Name:
Title:
<PAGE>
GRANTEES:
------------------------------------------
Name: William T. Esrey
------------------------------------------
Name: Ronald T. LeMay
------------------------------------------
Name: Arthur B. Krause
------------------------------------------
Name: J. Richard Devlin
<PAGE>
EXHIBIT 3
EXECUTION COPY
This AMENDMENT NO. 1 TO THE COORDINATION AGREEMENT (this "Amendment"),
dated as of January 26, 2000, by and between Deutsche Telekom AG, an
Aktiengesellschaft, organized under the laws of Germany ("DT"), NAB Nordamerika
Beteiligungs Holding GmbH, a limited liability company organized under the laws
of Germany ("NAB"), and France Telecom, a societe anonyme organized under the
laws of France ("FT", and together with DT and NAB, the "Parties"). Capitalized
terms used but not defined herein shall have the meanings assigned to such terms
in the Coordination Agreement (as defined below), or, if not defined therein, in
the Master Transfer Agreement (as defined below).
W I T N E S S E T H:
WHEREAS, FT and DT entered into a Coordination Agreement dated as of July
31, 1995 (the "Coordination Agreement") to coordinate their activities, and to
specify their respective rights and obligations with regard to their investment
in Sprint Corporation, a Kansas corporation ("Sprint");
WHEREAS, on December 29, 1999, NAB entered into an Assumption Agreement of
NAB Nordamerika Beteiligungs Holding GmbH, pursuant to which NAB became bound by
the terms and conditions of the Coordination Agreement;
WHEREAS, Sprint has agreed to sell, and FT and DT have agreed to purchase,
Sprint's interests in the Joint Venture pursuant to the terms and conditions of
a Master Transfer Agreement, dated as of January 21, 2000 (the "Master Transfer
Agreement"), between and among FT, DT, Atlas Telecommunications S.A., a societe
anonyme duly organized under the laws of Belgium ("Atlas"), Sprint, Sprint
Global Venture, Inc., a corporation duly organized under the laws of Kansas, and
the JV Entities named therein;
WHEREAS, FT and DT on the date hereof have concurrently entered into a
Transfer Agreement dated as of January 26, 2000 (the "FT/DT Transfer
Agreement"), pursuant to which one of FT or DT will purchase the interest of the
other in the Joint Venture (directly and/or indirectly through Atlas); and
WHEREAS, pursuant to and in accordance with Section 9.3 of the Coordination
Agreement, the Parties wish to amend, modify and supplement the Coordination
Agreement as set forth in this Amendment.
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. Amendments Effective Immediately. As of the date hereof, the
following Articles and Sections of the Coordination Agreement shall be amended,
modified and supplemented as follows:
(a) The following shall be deleted in their entirety: Section 1.4 (No
Impairment of Rights); Section 2.2 (Pricing Elections); Section 2.3
(Conversion Elections); Section 2.4 (Redemption Election); Section 4.6
(Stockholder Matters); Section 6.1 (Right of First Offer); Section 7.1
(Joint Action) and Section 7.2 (Competing Proposals).
(b) The first sentence of Section 1.3 (Holdings of Associates) shall
be deleted, and the second sentence of Section 1.3 shall be amended by
inserting the following in place of the words "In addition,": "Until such
time as the parties have entered into separate standstill agreements with
the Company pursuant to Section 5.17 of the Master Transfer Agreement,".
(c) The following provision shall be added in substitution for
"Section 1.4 No Impairment of Rights":
"Section 1.4 Effect of WorldCom Merger. This Agreement shall
remain in full force and effect immediately following the
WorldCom Merger, and all provisions herein shall apply, mutatis
mutandi, with respect to the WorldCom securities exchanged for
the Company's capital stock subject to this Agreement."
(d) Section 9.1 (Termination), sub-provisions "(a)", "(b)", "(b)(i)"
and "(b)(ii)" shall each be deleted in its entirety, and replaced with the
following:
"Section 9.1 Termination (a) This Agreement shall terminate upon
the earliest to occur of (i) the date FT, DT and NAB agree to
terminate this Agreement, (ii) the date each of FT and DT has
notified the other that each of FT and DT (directly or
indirectly) has transferred to a person that is not a controlled
Affiliate of it Beneficial Ownership (including, without
limitation, through any Qualified Subsidiary) of more than fifty
percent (50%) of the Company's Voting Securities beneficially
owned (directly or indirectly) by FT and DT on January 26, 2000
(as adjusted, after the effective date of the WorldCom Merger, to
reflect the equivalent amount of WorldCom's Voting Securities
received by it in exchange for such securities of the Company),
and (iii) if the FT/DT Amendments have become effective, the
earlier of (A) the date the Amended and Restated Standstill
Agreement and the Registration Rights Agreement are each replaced
by separate agreements in accordance with Sections 5.16 and 5.17
of the Master Transfer Agreement and (B) the date the Amended and
Restated Standstill Agreement has terminated in accordance with
its terms."
(e) Section 9.1 (Termination), sub-provision "(b)(iii)" shall be
renumbered "(b)", and the first letter of the first word of such clause
shall be capitalized.
(f) The first sentence of Section 9.2 (Notices) shall be amended by
deleting the word "follows" and substituting in its place "provided in
Section 9.03 of the FT/DT Transfer Agreement." The addresses for each of FT
and DT in Section 9.2 (Notices) shall be deleted in their entirety.
Section 2. Amendments Effective as of the Effective Time of the FT/DT
Investment Changes. As of the date of the Effective Time of the FT/DT Investment
Changes the following Articles and Sections of the Coordination Agreement shall
be amended, modified and supplemented as follows:
(a) The following shall be deleted in their entirety: Section 1.1 (Joint or
Coordinated Action); Section 1.2 (Relative Shareholdings); Section 4.1 (Voting
of Securities); Article V (Long Distance Assets); and Section 6.2 (Sales of
Shares to the Company).
(b) Section 6.3 (Coordination of Market Sales) shall be deleted and
replaced by the following: "In order to minimize any adverse impact on the
market of sales or other dispositions of Voting Securities of the Company or
securities of WorldCom received by the parties pursuant to the WorldCom Merger
(as such terms are defined in the Master Transfer Agreement), in each case by
the parties or their controlled Affiliates, and to enable each of the parties to
comply with any applicable regulatory or contractual requirements, for the
period of two years following the Effective Time of the FT/DT Investment
Changes, each party will use its reasonable best efforts to inform the other
from time to time of its strategy, both long term and short term, with respect
to sales and other dispositions, and will coordinate and cooperate with the
other with respect to sales and other dispositions, whether by public offerings
or private sales, through brokerage transactions or block trades or through the
use of derivative securities."
(c) The provisions of Section 6.4 shall apply to any separate registration
rights agreements entered into pursuant to Section 5.16 of the Master Transfer
Agreement. For the period of two years following the Effective Time of the FT/DT
Investment Changes, neither party (nor any of its controlled Affiliates) shall
make any demand under any registration rights agreement with the Company (or
WorldCom after the WorldCom Merger), without the prior written consent of the
other party, if any registration of securities effected pursuant thereto would
adversely affect any planned disposition by the other party of its securities in
the Company (or securities of WorldCom after the WorldCom Merger).
(d) Section 9.6 (No Assignment of Certain Purchase Rights) shall be amended
by deleting "or any right held by it to purchase Specified Long Distance
Assets."
Section 3. Amendment of Board Related Rights. At the time the provision of
Section 5.04(a)(i) of the Master Transfer Agreement become applicable, and the
provisions of Section 5.04(a)(ii) are not and can no longer become applicable,
the following Sections of the Coordination Agreement shall be deleted in their
entirety: Section 4.2 (Mutual Support of Board Nominees); Section 4.3 (Number of
Directors); Section 4.4 (Committee Representation); and Section 4.5 (Replacement
of Directors).
Section 4. Amendments Effective as of the Effective Time of the WorldCom
Merger. As of the Effective Time of the WorldCom Merger the following Articles
and Sections of the Coordination Agreement shall be deleted in their entirety:
Section 2.1 (Optional Purchase Rights); Section 2.5 (Qualified Stock
Purchasers); Article III (Purchases of Common Stock) and Section 9.6 (No
Assignment of Certain Purchase Rights).
Section 5. Restatement. After the date hereof, the parties shall enter into
an Amended and Restated Coordination Agreement to reflect the amendments
provided for herein.
Section 6. Counterparts. This Amendment 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 7. Governing Law. This Amendment 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).
Section 8. No Third-Party Beneficiaries. This Amendment is for the sole
benefit of the Parties 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 Amendment.
<PAGE>
IN WITNESS WHEREOF, this Amendment No. 1 executed on behalf of the Parties
by their respective duly authorized officers, all as of the date first above
written.
DEUTSCHE TELEKOM AG
By: /s/ Jeffrey A. Hedberg
---------------------------
Name: Jeffrey A. Hedberg
Title: Member of the Board
of Management,
International
NAB NORDAMERIKA BETEILIGUNGS
HOLDING GMBH
By: /s/ Dr. Joachim Peckert
---------------------------
Name: Dr. Joachim Peckert
Title: Managing Director
By: /s/ Mr. Heinz Klesing
---------------------------
Name: Mr. Heinz Klesing
Title: Managing Director
FRANCE TELECOM
By: /s/ Jacques Champeaux
---------------------------
Name: Jacques Champeaux
Title: Group Executive
President
Large Business
Division
<PAGE>
EXHIBIT 4
Execution Copy
CONSENT AND ASSUMPTION
This Consent and Assumption dated as of January 21, 2000, is undertaken by
MCI WORLDCOM, Inc., a corporation organized under the laws of Georgia
("WorldCom"), in favor of FRANCE TELECOM, a societe anonyme formed under the
laws of France ("FT"), DEUTSCHE TELEKOM AG, an Aktiengesellschaft formed under
the laws of Germany ("DT"), and NAB Nordamerika Beteiligungs Holding GmbH, a
wholly owned subsidiary of DT ("NAB").
WHEREAS, Sprint Corporation, a corporation formed under the laws of Kansas
("Sprint") and WorldCom have entered into an Agreement and Plan of Merger dated
as of October 4, 1999, to be amended and restated in the Amended and Restated
Agreement and Plan of Merger, substantially in the form previously delivered to
FT, DT and NAB, which will be entered into by Sprint and WorldCom following
receipt of necessary approvals from their respective boards of directors (the
"Amended WorldCom Merger Agreement") pursuant to which Sprint has agreed to
merge with and into WorldCom (the "Merger"); and
WHEREAS, FT, DT, Sprint, Atlas Telecommunications S.A., Sprint Global
Venture, Inc. ("Sprint Sub"), NAB and the JV Entities which are parties thereto
have entered into a Master Transfer Agreement, dated as of even date herewith
(the "Master Transfer Agreement")
NOW, THEREFORE, in consideration of the premises and the mutual agreements
and covenants hereinafter set forth, and other good and valuable consideration,
intending to be legally bound, WorldCom hereby agrees as follows:
SECTION 1. Assumption of Sprint Obligations. (a) WorldCom hereby assumes,
effective as of the effective date of the Merger, and without any further
action, the rights and obligations of Sprint in (i) the Amended and Restated
Registration Rights Agreement, as amended, among FT, DT, NAB and Sprint dated as
of November 23, 1998 (as amended by the Master Transfer Agreement), (ii) the
Amended and Restated Standstill Agreement among FT, DT and Sprint dated as of
November 23, 1998 (as amended by the Master Transfer Agreement), (iii) the
Qualified Subsidiary Standstill Agreement, dated December 29, 1999, among Sprint
and NAB (as amended by the Master Transfer Agreement), and (iv) in the Master
Transfer Agreement and the agreements to be executed and delivered pursuant to
the Master Transfer Agreement (together with the Master Transfer Agreement, the
"MTA Transaction Documents"). WorldCom also agrees, effective as of the
effective date of the Merger, to cause Sprint Sub to fulfill its obligations
under the MTA Transaction Documents. Each Party further confirms that the
standstill agreements referred to above (and all other standstill agreements
referred to in Section 5.04(d) of the Master Transfer Agreement, if any) will
continue to be applicable to FT, DT and NAB and to the WorldCom securities they
will own following consummation of the WorldCom Merger.
(b) In addition, having determined that it has no intention to
oppose the FT/DT Transactions (as defined in the Master Transfer Agreement)
before any regulatory or governmental authority, WorldCom hereby agrees not to
oppose, and agrees to cause each of its controlled Affiliates not to oppose, the
FT/DT Transactions by or before any regulatory or governmental authority;
provided, however, that nothing in this Section 1(b) shall prevent WorldCom or
any of its Affiliates from responding fully, accurately and in good faith to any
inquires from any regulatory or governmental authority in connection with the
FT/DT Transactions.
SECTION 2. WorldCom Consent. WorldCom hereby consents to Sprint and Sprint
Sub entering into the MTA Transaction Documents and consummating the
transactions contemplated thereby.
SECTION 3. Representations and Warranties of WorldCom. WorldCom represents
and warrants to each of FT and DT that this Consent and Assumption has been
approved by the board of directors of WorldCom, has been duly executed and
delivered by a duly authorized officer of WorldCom and constitutes a valid and
binding agreement of WorldCom, enforceable against WorldCom in accordance with
its terms.
SECTION 4. Amendment to Original WorldCom Merger Agreement. Promptly after
the date hereof, WorldCom shall submit the Amended WorldCom Merger Agreement to
its board of directors for approval, and promptly after obtaining such approval
from the WorldCom board of directors, shall execute and deliver the Amended
WorldCom Merger Agreement.
SECTION 5. Governing Law. This Consent and Assumption shall be governed by
and construed in accordance with the internal laws of the State of New York.
SECTION 6. Public Announcements. No party hereto shall issue
any press release or other public announcement relating to this Consent and
Assumption without consultation with the other parties hereto.
<PAGE>
IN WITNESS WHEREOF, WorldCom has caused its duly authorized officer to
execute this consent and assumption as of the day and year first above written.
MCI WORLDCOM, INC.
By: /s/ Bernard J. Ebbers
---------------------
Name: Bernard J. Ebbers
Title: CEO
Accepted by:
FRANCE TELECOM
By: /s/ Jacques Champeaux
----------------------------
Name: Jacques Champeaux
Title: Group Executive President,
Large Business Division
DEUTSCHE TELEKOM AG
By: /s/ Jeffrey A. Hedberg
----------------------------
Name: Jeffrey A. Hedberg
Title: Board of Management,
International
NAB NORDAMERIKA BETEILIGUNGS
HOLDING GMBH
By: /s/ Heinz Klesing
----------------------------
Name: Heinz Klesing
Title: Managing Director
