Exhibit 10.1
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AMENDED AND RESTATED
REGISTRATION RIGHTS AGREEMENT
AMONG
FRANCE TELECOM S.A.,
DEUTSCHE TELEKOM AG
AND
SPRINT CORPORATION
Dated as of November 23, 1998
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AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT, dated as of November
23, 0000 (xxx "Xxxxxxxxx"), xxxxx Xxxxxx Telecom S.A., a societe anonyme
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organized under the laws of France ("FT"); Deutsche Telekom AG, an
Aktiengesellschaft organized under the laws of Germany ("DT"); and Sprint
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Corporation, a corporation organized under the laws of Kansas (the "Company").
RECITALS
WHEREAS, Sprint, FT and DT entered into an Investment Agreement dated as of
July 31, 1995, as amended (the "Investment Agreement") pursuant to which FT and
DT purchased shares of capital stock of Sprint;
WHEREAS, in connection with the transactions contemplated by the Investment
Agreement, Sprint, FT and DT entered into a Registration Rights Agreement dated
as of January 31, 1996 (the "Original Registration Rights Agreement");
WHEREAS, Sprint, FT and DT entered into a Master Restructuring and
Investment Agreement dated as of May 26, 1998 (the "FT/DT Restructuring
Agreement"), which contemplates, among other things, the purchase by FT and DT
of shares of PCS Common Stock -- Series 3, par value $1.00 per share, of Sprint;
and
WHEREAS, as a condition precedent to and in consideration of the
transactions contemplated in the FT/DT Restructuring Agreement, Sprint, FT and
DT are required to enter into this Agreement and in reliance thereon Sprint, FT
and DT have entered into the FT/DT Restructuring Agreement;
NOW, THEREFORE, in consideration of these premises and the covenants and
agreements contained herein, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, each of FT, DT and
Sprint, intending to be legally bound, hereby agree that the Original
Registration Rights Agreement is hereby amended and restated in its entirety as
follows:
Section 1. Registration under the Securities Act.
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Section 1.1 Registration on Request. (a) Request. Subject to Article
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II of the Amended and Restated Stockholders' Agreement, at any time, upon the
written request of the holders of a majority of the Eligible Securities then
outstanding requesting that the Company effect the registration under the
Securities Act of a specified number of Eligible Securities, the Company shall
promptly give written notice of such requested registration to all holders of
Eligible Securities and thereupon the Company shall use its reasonable efforts
to effect the
registration under the Securities Act of the Eligible Securities which the
Company has been so requested to register by the Selling Stockholders, for
disposition for cash in accordance with the intended method or methods of
disposition specified by the Selling Stockholders (which method of disposition
shall be in accordance with the registration requirements of the United States
securities laws), provided that (i) the Company shall not be required to effect
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any registration pursuant to this Section 1.1 if during the twelve-month period
immediately preceding such request for registration the Company has previously
effected a registration pursuant to this Section 1.1, (ii) subject to Section
1.1(g), the Company shall not be required to effect any registration pursuant to
this Section 1.1 after seven registrations requested by holders of Eligible
Securities pursuant to this Section 1.1 shall have been effected unless, as to
no more than three additional registrations, the holders of a majority of the
Eligible Securities then outstanding deliver at any time a notice to the effect
that such holders agree to pay all Registration Expenses in connection with such
additional three registrations; provided, however, that if the Company proposes
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to redeem pursuant to ARTICLE SIXTH, Section 2.2 of the Articles shares of Class
A Stock from the Class A Holders in an amount in excess of 0.25% of the Voting
Securities of the Company, and the Selling Stockholders sell such shares
pursuant to Section 2.11 or 7.4 of the Amended and Restated Stockholders'
Agreement in a registered offering pursuant to which the Selling Stockholders
have exercised a demand registration right, such registration shall not count
toward the maximum number of registrations provided in this clause (ii) to the
proviso to Section 1.1(a), (iii) the Company shall not be obligated to cause any
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special audit to be undertaken with any such registration, and (iv) the Company
shall not be required to effect any registration requested by holders of
Eligible Securities pursuant to this Section 1.1 unless either (A) the aggregate
market value of all Eligible Securities so requested to be registered exceeds
$200 million on the date of delivery of the request for registration based on
the average closing price per share on the preceding ten Business Days of the
Eligible Securities to be registered (the "Relevant Average Closing Price"), or
(B) the registration relates to the sale of Post-Restructuring Series 3 PCS
Shares and both (i) the aggregate market value of the Post-Restructuring Series
3 PCS Shares so requested to be registered exceeds $100 million on the date of
delivery of the request for registration based on the Relevant Average Closing
Price with respect to the Series 1 PCS Stock, and (ii) the registration involves
at least the lesser of (x) Post-Restructuring Series 3 PCS Shares with an
aggregate market value of at least $200 million on the date of delivery of the
request for registration based on the Relevant Average Closing Price with
respect to the Series 1 PCS Stock, and (y) all of the Post-Restructuring Series
3 PCS Shares owned by the Class A Holders.
(b) Withdrawal. The Selling Stockholders shall have the right to request
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withdrawal of any registration statement filed pursuant to this Section 1.1 (and
the Company shall so withdraw such registration statement) so long as such
registration statement has not become effective, provided that, in such case,
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such Selling Stockholder shall pay all related out-of-pocket Registration
Expenses reasonably incurred by the Company unless a registration statement
shall be effected pursuant to this Section 1.1 within 270 days after such
withdrawal. 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
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statement to any date not more than 120 days after the original Planned Date
with respect to such registration statement.
(c) Effective Registration Statement. A registration requested pursuant to
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this Section 1.1 shall not be deemed to be effected (i) if a registration
statement with respect thereto shall not have become effective under the
Securities Act (including, without limitation, because of a withdrawal of such
registration statement by the Selling Stockholders prior to the effectiveness
thereof pursuant to Section 1.1(b) hereof), (ii) if, after it has become
effective, such registration is interfered with for any reason by any stop
order, injunction or other order or requirement of the Commission or any other
Governmental Authority, and the result of such interference is to prevent the
Selling Stockholders from disposing of more than one-third of the Eligible
Securities proposed to be sold in accordance with the intended methods of
disposition or the Company exercises its rights under Section 1.4 and the result
is a delay in the proposed distribution of any Eligible Securities in excess of
120 days and the Selling Stockholders determine not to sell Eligible Securities
pursuant to such registration as a result of such delay, or (iii) if the
conditions to closing specified in the purchase agreement or underwriting
agreement entered into in connection with any underwritten offering shall not be
satisfied or waived with the consent of the Selling Stockholders holding two-
thirds of the Eligible Securities that were to have been sold thereunder, other
than as a result of any breach by any Selling Stockholder or any underwriter of
its obligations thereunder or hereunder.
(d) Registration Statement Form. Registration statements filed under this
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Section 1.1 shall be on such form of the Commission as shall be selected by the
Company, and as shall permit the disposition of the subject Eligible Securities
for cash in accordance with the intended method or methods of disposition
specified by the Selling Stockholders. The Selling Stockholders may propose
that the Company include in a registration statement additional information or
material specified by any Selling Stockholder and the Company shall make a good
faith determination whether to include such information or material in such
registration statement.
(e) Expenses. Except as otherwise provided herein, the Company shall pay
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all Registration Expenses in connection with any registration requested pursuant
to this Section 1.1 and shall pay such other expenses if and to the extent
required by Section 2.5 of the Amended and Restated Stockholders' Agreement.
(f) Selection of Underwriters. If a registration pursuant to this Section
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1.1 relates to an underwritten offering, the managing or lead underwriter or
underwriters shall be an underwriter or underwriters of internationally
recognized standing selected by the Selling Stockholders holding a majority of
the Eligible Securities proposed to be registered, with the approval of the
Company, which approval shall not be unreasonably withheld.
(g) Priority in Requested Registrations. If a registration pursuant to
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this Section 1.1 involves an underwritten offering, and the managing or lead
underwriter or underwriters shall
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advise the Selling Stockholders in writing (a copy of which shall be provided to
the Company by the Selling Stockholders) that, in its or their opinion, the
number of securities requested to be included in such registration by the
Selling Stockholders, the Company and any other Person exceeds the number which
can be sold in such offering within a price range acceptable to the Selling
Stockholders, the Company shall include in such registration the number of
securities that the Selling Stockholders are so advised can be sold in such
offering, as follows: (i) (A) if the registration is effected during the CP
Preference Period and involves the sale of Sprint PCS Stock, unless the Company
exercises its option described in clause (ii) below, (w) first, the Eligible
Securities proposed to be included by the Selling Stockholders, (x) second, so
long as the Cable Partner Registration Rights Agreement is in effect, any
securities requested to be included in such registration by the Cable Partners,
(y) third, the securities requested to be included in such registration by the
Company, unless otherwise provided in an agreement between the Company and
another Person or Persons, and (z) fourth, the securities of any other Person or
Persons proposed to be included in such registration, in accordance, as to the
priorities among such other Persons, with the rights contained in the respective
agreements into which such Persons and the Company have entered, or (B) if the
registration is not effected during the CP Preference Period or does not involve
the sale of Sprint PCS Stock, unless the Company exercises its option described
in clause (ii) below, (x) first, the Eligible Securities proposed to be included
by the Selling Stockholders, (y) second, the securities requested to be included
in such registration by the Company and, so long as the Cable Partner
Registration Rights Agreement is in effect and the offering involves the
issuance of Sprint PCS Stock, the Cable Partners, unless otherwise provided in
an agreement between the Company and another Person or Persons, and (z) third,
the securities of any other Person or Persons proposed to be included in such
registration, in accordance, as to the priorities among such other Persons, with
the rights contained in the respective agreements into which such Persons and
the Company have entered (provided, however, in the case of this clause (B) if
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the registration is during the CP Secondary Preference Period and the Cable
Partner Registration Rights Agreement is in effect, unless the Cable Partners
otherwise consent, any shares of PCS Stock proposed to be included in such
registration by the Company, the proceeds with respect to which will not be
allocated to the PCS Group, shall be third in priority, and the securities of
such other persons shall be fourth in priority), or (ii) at the option of the
Company, (x) first, the Eligible Securities proposed to be included by the
Selling Stockholders and the securities requested to be included in such
registration by the Company and, so long as the Cable Partner Registration
Rights Agreement is in effect and the offering involves the sale of Sprint PCS
Stock, the Cable Partners, each pro rata in accordance with the number of
Eligible Securities proposed to be included by the Selling Stockholders and the
number of securities so proposed to be included by the Company and, if
applicable, the Cable Partners, respectively, and (y) second, the securities of
any other Person or Persons proposed to be included in such registration, in
accordance, as to the priorities among such other Persons, with the rights
contained in the respective agreements into which such Persons and the Company
have entered, provided, if the Company selects the option set forth in clause
(ii), such registration shall not count toward the maximum number of
registrations provided in Section 1.1(a)(ii) if due to the Company's (and, if
applicable, the Cable Partners') participation on a pro rata basis with the
Selling Stockholders, the managing or lead underwriter
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or underwriters determines in its good faith judgment that the number of
securities requested to be included in such registration by the Selling
Stockholders, the Company and, if applicable, the Cable Partners exceeds the
number which can be sold in such offering within a price range acceptable to the
Selling Stockholders.
(h) Inconsistent Rights. The Company shall not grant to any holder of its
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securities any registration rights inconsistent with the provisions of this
Section 1.1.
Section 1.2. Incidental Registration. (a) Right to Include Eligible
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Securities. If the Company at any time proposes to register any shares of its
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Common Stock, Series 1 FON Stock (including Series 2 FON Stock that, upon such
distribution would convert into Series 1 FON Stock), Series 1 PCS Stock
(including Series 2 PCS Stock that, upon such distribution would convert into
Series 1 PCS Stock) or other common equity securities under the Securities Act
(other than by a registration on Form S-4 or S-8 or any successor or similar
forms or filed in connection with an exchange offer or any offering of
securities solely to the Company's existing stockholders or otherwise pursuant
to a dividend reinvestment plan or a dividend reinvestment and stock purchase
plan, and other than pursuant to Section 1.1) for sale pursuant to an
underwritten public offering or other similarly organized selling effort,
whether or not for sale for its own account, the Company shall give prompt
written notice to each holder of Eligible Securities of its intention to do so
and of the rights of such holders under this Section 1.2. Upon the written
request of any holder of Eligible Securities made within 30 days after the
delivery of any such notice (which request shall specify the Eligible Securities
intended to be disposed of by any holder thereof), the Company shall use its
reasonable efforts to effect the registration under the Securities Act of all
Eligible Securities which the Company has been so requested to register by the
Selling Stockholders, to the extent required to permit the disposition for cash
(in accordance with the intended methods thereof specified by the Selling
Stockholders, which method of disposition shall be in accordance with United
States securities laws) of the Eligible Securities so to be registered. If, at
any time after giving written notice of its intention to register any such
securities and prior to the effective date of the registration statement filed
in connection with such registration, the Company shall determine for any reason
not to register or to delay registration of such securities, the Company may, at
its election, give written notice of such determination to each Selling
Stockholder and, thereupon, (i) in the case of a determination not to register,
the Company need not register any Eligible Securities in connection with such
registration (but shall, in such case, pay the reasonable fees and expenses of
counsel to the Selling Stockholders (excluding the portion of any fees
determined pursuant to the German Fee Regulations) unless the Company effects a
similar registration to which Sections 1.1 or 1.2 applies within 270 days of the
Company's election not to register), without prejudice, however, to the rights
of the holders of Eligible Securities (including the Selling Stockholders) to
request that such registration be effected as a registration under Section 1.1,
and (ii) in the case of a determination to delay registering, the Company may
delay registering any Eligible Securities for the same period as the delay in
registering such other securities. No registration effected under this Section
1.2 shall relieve the Company of its obligation to effect any registration upon
request under Section 1.1.
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(b) Priority in Incidental Registrations. If a registration pursuant to
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this Section 1.2 involves an underwritten offering, and the managing or lead
underwriter or underwriters shall advise the Company in writing (a copy of which
shall be provided by the Company to each Person requesting registration of
Eligible Securities or other securities of the Company), that, in its or their
opinion, the number of securities requested and otherwise proposed to be
included in such registration exceeds the number that can be sold in such
offering within a price range acceptable to the Company, the Company shall
include in such registration, up to the number of securities that the Company is
so advised can be sold in such offering:
(i) if the registration is a primary registration on behalf of the
Company which is effected during the CP Preference Period and involves the sale
of Sprint PCS Stock, (w) first, the securities proposed to be included by the
Cable Partners pursuant to the Cable Partner Registration Rights Agreement (if
then in effect), (x) second, the securities proposed to be included by the
Company, (y) third, the Eligible Securities requested to be included in such
registration by the Selling Stockholders and (z) fourth, the securities of other
Persons requested to be included in such registration;
(ii) if the registration is a primary registration on behalf of the
Company which is effected after the CP Preference Period or does not involve the
sale of Sprint PCS Stock, (x) first, the securities proposed to be included by
the Company, (y) second, the Eligible Securities proposed to be included in
such registration by the Selling Stockholders and, if the registration involves
the sale of Sprint PCS Stock, the securities requested to be included by the
Cable Partners pursuant to the Cable Partner Registration Rights Agreement each
pro rata in accordance with the number of Eligible Securities so proposed to be
included (if then in effect), and (z) third, the securities of other Persons
requested to be included in such registration in accordance with the rights
contained in the respective agreements into which such Persons and the Company
have entered (provided, however, that if the registration is during the CP
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Secondary Preference Period and the Cable Partner Registration Rights Agreement
is in effect, unless the Cable Partners otherwise consent, any shares of PCS
Stock proposed to be included in such registration by the Company, the proceeds
with respect to which will not be allocated to the PCS Group, shall be third in
priority, and the securities of such other persons shall be fourth in priority);
and
(iii) if the registration is a secondary registration on behalf of
a Person or Persons other than the Company or a holder of Eligible Securities
which is effected during the CP Preference Period and involves the sale of
Sprint PCS Stock, (w) first, the securities proposed to be included by such
other Person or Persons, (x) second, the securities proposed to be included by
the Cable Partners pursuant to the Cable Partner Registration Rights Agreement
(other than the Cable Partner or Cable Partners, if any, which initiated such
secondary registration), (y) third, the securities of the Company and the
Eligible Securities requested to be included in such registration by the Selling
Stockholders, each pro rata in accordance with the number of securities proposed
to be registered by the Company and the number of Eligible Securities so
requested to be included, respectively, and (z) fourth, the securities of any
other Persons
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requested to be included in such registration in accordance with the rights
contained in the respective agreements into which such Persons and the Company
have entered; and
(iv) if the registration is a secondary registration on behalf of a
Person or Persons other than the Company or a holder of Eligible Securities
which is effected after the CP Preference Period or does not involve the sale of
Sprint PCS Stock, (w) first, the securities proposed to be included by such
other Person or Persons, (x) second, if such party exercising demand
registration rights is a Cable Partner, then any other Cable Partners exercising
incidental registration rights pursuant to the Cable Partner Registration Rights
Agreement, (y) third, the securities of the Company, the Eligible Securities
requested to be included in such registration by the Selling Stockholders and,
if the registration involves the sale of Sprint PCS Stock but the party
exercising demand registration rights is not a Cable Partner, the securities
requested to be included by the Cable Partners pursuant to the Cable Partner
Registration Rights Agreement, each pro rata in accordance with the number of
securities proposed to be registered by the Company and the number of Eligible
Securities and other securities so requested to be included, respectively, and
(z) fourth, the securities of any other Persons requested to be included in such
registration in accordance with the rights contained in the respective
agreements into which such Persons and the Company have entered (provided,
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however, that if the registration is during the CP Secondary Preference Period
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and the Cable Partner Registration Rights Agreement is in effect, unless the
Cable Partners otherwise consent, any shares of PCS Stock proposed to be
included in such registration by the Company, the proceeds with respect to which
will not be allocated to the PCS Group, shall be third in priority, and the
securities of such other persons shall be fourth in priority).
Notwithstanding the aforesaid, if at any time the Company proposes to
effect a registration under this Section 1.2 the Selling Stockholders are
entitled to effect a disposition of Eligible Securities pursuant to Rule 144(k)
(or any successor provision) under the Securities Act, the aforesaid priorities
shall be changed so that the Eligible Securities proposed to be included by the
Selling Stockholders shall have the lowest priority of all securities proposed
to be registered in such registration.
(c) Inconsistent Rights. The Company shall not grant to any holder of its
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securities any registration rights inconsistent with the provisions of this
Section 1.2.
(d) Expenses. Except as otherwise provided in this Agreement, the Company
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shall pay all Registration Expenses in connection with any registration
requested pursuant to this Section 1.2.
(e) Selection of Underwriters. If an incidental registration pursuant to
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this Section 1.2 involves an underwritten offering, the managing or lead
underwriter or underwriters shall be selected by the Company, unless otherwise
provided in an agreement between the Company and another Person or Persons.
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Section 1.3. Registration Procedures. If and whenever the Company is
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required to use its reasonable efforts to effect the registration of any
Eligible Securities under the Securities Act as provided in Sections 1.1 and
1.2, the Company shall as expeditiously as possible:
(a) prepare and as soon thereafter as possible file with the Commission the
requisite registration statement to effect such registration and thereafter use
its reasonable efforts to cause such registration statement to become effective,
provided that before filing such registration statement or any amendments
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thereto, the Company shall furnish to the counsel to the Selling Stockholders
copies of all such documents proposed to be filed, which documents will be
subject to the review of such counsel;
(b) prepare and file with the Commission such amendments and supplements to
such registration statement and the prospectus used in connection therewith as
may be necessary to keep such registration statement continuously effective for
a period of either (i) not less than 120 days (subject to extension pursuant to
the last paragraph of this Section 1.3) or, if such registration statement
relates to an underwritten offering, such longer period as in the opinion of
counsel for the underwriters a prospectus is required by law to be delivered in
connection with sales of securities by an underwriter or dealer; or (ii) such
shorter period as is required for the disposition of all of the securities
covered by such registration statement in accordance with the intended methods
of disposition by the seller or sellers thereof set forth in such registration
statement (but in any event not before the expiration of any longer period of
effectiveness required under the Securities Act), and to comply with the
provisions of the Securities Act with respect to the disposition of all
securities covered by such registration statement until such time as all of such
securities have been disposed of in accordance with the intended methods of
disposition by the seller or sellers thereof set forth in such registration
statement;
(c) furnish to each seller of securities covered by such registration
statement such number of conformed copies of such registration statement and of
each such amendment and supplement thereto (in each case including all
exhibits), such number of copies of the prospectus contained in such
registration statement (including each preliminary prospectus and any summary
prospectus) and any other prospectus filed under Rule 424 under the Securities
Act, in conformity with the requirements of the Securities Act, and such other
documents in order to facilitate the disposition of such securities owned by
such seller in accordance with such seller's intended method of disposition, as
such seller may reasonably request, but only during such time as the Company
shall be required under the provisions hereof to cause such registration
statement to remain current;
(d) use its reasonable efforts to register or qualify securities covered by
such registration statement under such other securities or blue sky laws of such
jurisdictions in the United States as each seller thereof shall reasonably
request, to keep such registration or qualification in effect for so long as
such registration statement remains in effect, and to take any other action
which may be reasonably necessary to enable such seller to consummate the
disposition in such jurisdictions in the United States of the securities owned
by such seller,
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provided that the Company shall not for any such purpose be required to (i)
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qualify generally to do business as a foreign corporation in any jurisdiction
where it would not otherwise be required to qualify but for the requirements of
this subsection (d), (ii) consent to general service of process in any such
jurisdiction, (iii) subject itself to taxation in any such jurisdiction or (iv)
conform its capitalization or the composition of its assets at the time to the
securities or blue sky laws of such jurisdiction;
(e) use its reasonable efforts to cause all securities covered by such
registration statement to be registered with or approved by such other United
States Governmental Authorities as may be necessary by virtue of the business
and operations of the Company to enable the sellers to consummate the
disposition thereof;
(f) use its reasonable efforts to furnish to each Selling Stockholder a
signed counterpart, addressed to such Selling Stockholder (and the underwriters,
if any), of
(i) an opinion of counsel for the Company, dated the effective date of
such registration statement (and, if such registration includes an underwritten
public offering, dated the date of the closing under the underwriting
agreement), reasonably satisfactory in form and substance to such Selling
Stockholder, and
(ii) a "comfort" letter, dated the effective date of such registration
statement (and, if such registration includes an underwritten public offering,
dated the date of the closing under the underwriting agreement), reasonably
satisfactory in form and substance to such Selling Stockholder, signed by the
independent public accountants who have certified the Company's financial
statements included in such registration statement, covering substantially the
same matters with respect to such registration statement (and the prospectus
included therein) and, in the case of the accountants' letter, with respect to
events subsequent to the date of such financial statements, as are customarily
covered in opinions of issuer's counsel and in accountants' letters delivered to
the underwriters in underwritten public offerings of securities;
(g) furnish to each such Selling Stockholder at least five Business Days
prior to the filing thereof a copy of any amendment or supplement to such
registration statement or prospectus (other than any amendment or supplement in
the form of a filing which the Company is required to make pursuant to the
Exchange Act) and not file any such amendment or supplement to which any such
Selling Stockholder shall have reasonably objected on the grounds that, in the
opinion of counsel to such Selling Stockholder, such amendment or supplement
does not comply in all material respects with the requirements of the Securities
Act;
(h) notify each Selling Stockholder, at any time when a prospectus relating
thereto is required to be delivered under the Securities Act, upon discovery
that, or upon the discovery of the happening of any event as a result of which,
the prospectus included in such registration
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statement, as then in effect, includes an untrue statement of a material fact or
omits to state any material fact required to be stated therein or necessary to
make the statements therein not misleading in the light of the circumstances
under which they were made, and at the request of any such Selling Stockholder
promptly prepare and furnish to such Selling Stockholder a reasonable number of
copies of a supplement to or an amendment of such prospectus as may be necessary
so that, as thereafter delivered to the purchasers of such securities, such
prospectus shall not include an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading in the light of the circumstances under which
they were made;
(i) otherwise use its reasonable efforts to comply with all applicable
rules and regulations of the Commission, and make available to its security
holders, as soon as reasonably practicable, an earnings statement covering a
period of at least twelve months beginning after the effective date of such
registration statement, which earnings statement shall satisfy the provisions of
Section 11(a) of the Securities Act;
(j) use its reasonable efforts to provide customary assistance to the
underwriters in their selling efforts and presentations to prospective
investors; and
(k) use its reasonable efforts to cause all such Eligible Securities
covered by such registration statement to be listed on a national securities
exchange or on the National Association of Securities Dealers, Inc. National
Market System (if such Eligible Securities are not already so listed), and on
each other securities exchange on which similar securities issued by the Company
are then listed, if the listing of such Eligible Securities is then permitted
under the rules of such exchange.
The Company may require each Selling Stockholder to furnish the Company in
writing for inclusion in the registration statement such information regarding
such Selling Stockholder and the distribution of such Eligible Securities being
sold as the Company may from time to time reasonably request.
Each Selling Stockholder agrees by becoming a holder of Eligible Securities
that upon receipt of any notice from the Company of the happening of any event
of the kind described in subsection (h) of this Section 1.3, such Selling
Stockholder shall forthwith discontinue such Selling Stockholder's disposition
of Eligible Securities pursuant to the registration statement relating to such
Eligible Securities until such Selling Stockholder's receipt of the copies of
the supplemented or amended prospectus contemplated by subsection (h) of this
Section 1.3 and, if so directed by the Company, such Selling Stockholder shall
use its reasonable efforts to deliver to the Company (at the Company's expense)
all copies, other than permanent file copies then in such Selling Stockholder's
possession, of the prospectus relating to such Eligible Securities current at
the time of receipt of such notice. If the Company shall give any such notice,
the applicable time period mentioned in subsection (b) of this Section 1.3
during which a registration statement is to remain effective shall be extended
by the number of days during the period from
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and including the date of the giving of such notice pursuant to subsection (h)
of this Section 1.3, to and including the date when each Selling Stockholder
shall have received the copies of the supplemented or amended prospectus
contemplated by subsection (h) of this Section 1.3.
Section 1.4. Delay of Filing or Sales. (a) The Company shall have the
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right, upon giving notice to the Selling Stockholders of the exercise of such
right, to delay filing a registration statement or to require such Selling
Stockholders not to sell any Eligible Securities pursuant to a registration
statement for a period of 270 days from the date on which such notice is given,
or such shorter period of time as may be specified in such notice or in a
subsequent notice delivered by the Company to such effect prior to or during the
effectiveness of the registration statement, if (i) the Company is engaged in or
proposes to engage in discussions or negotiations with respect to, or has
proposed or taken a substantial step to commence, or there otherwise is pending,
any merger, acquisition, other form of business combination, divestiture, tender
offer, financing or other transaction, or there is an event or state of facts
relating to the Company, in each case which is material to the Company (any such
negotiation, step, event or state of facts being herein called a "Material
Activity"), (ii) such Material Activity would, in the opinion of counsel for the
Company, require disclosure so as to permit the Eligible Securities to be sold
in compliance with law, and (iii) such disclosure would, in the reasonable
judgment of the Company, be adverse to its interests, provided that the Company
shall have no right to delay the filing of a registration statement or the
selling of Eligible Securities if at any time during the twelve months preceding
the date on which such notice was given the Company had delayed either the
filing of a registration statement that included Eligible Securities pursuant to
Section 1.1(a) or the selling of Eligible Securities pursuant to a registration
statement filed in accordance with Section 1.1(a).
(b) The Company shall have no obligation to include in any notice
contemplated by Section 1.4(a) any reference to or description of the facts
based upon which the Company is delivering such notice. The Company shall pay
all Registration Expenses and all reasonable fees and expenses of counsel for
the Selling Stockholders (excluding the portion of any fees determined pursuant
to the German Fee Regulations) with respect to any registration of Eligible
Securities or sales thereof that has been delayed for more than 90 days pursuant
to this Section 1.4, unless the Company effects a similar registration to which
Section 1.1 or 1.2 applies within 270 days of the first delivery of a notice
contemplated by Section 1.4(a).
Section 1.5. Underwritten Offerings. (a) Requested Underwritten
---------------------- ----------------------
Offerings. If requested by the underwriters of any underwritten offering of
---------
Eligible Securities pursuant to a registration requested under Section 1.1, the
Company shall enter into an underwriting agreement with such underwriters for
such offering. Such agreement shall be reasonably satisfactory in substance and
form to each Selling Stockholder, the Company and the underwriters and shall
contain representations, warranties, indemnities and agreements customarily
included by an issuer in underwriting agreements with respect to secondary
distributions, including, without limitation, indemnities to the effect and to
the extent provided in Section 1.7. The Selling Stockholders shall be parties to
such underwriting agreement and may, at their option, require
11
that any or all of the conditions precedent to the obligations of such
underwriters under such underwriting agreement be conditions precedent to the
obligations of such Selling Stockholders.
(b) Incidental Underwritten Offerings. If the Company at any time proposes
---------------------------------
to register any of its Common Stock, Series 1 FON Stock (including Series 2 FON
Stock that, upon such distribution would convert into Series 1 FON Stock),
Series 1 PCS Stock (including Series 2 PCS Stock that, upon such distribution
would convert into Series 1 PCS Stock) or other common equity securities under
the Securities Act as contemplated by Section 1.2 and such securities are to be
distributed by or through one or more underwriters, the Company shall, if
requested by the Selling Stockholders as provided in Section 1.2 and subject to
the provisions of Section 1.2(b), use its reasonable efforts to arrange for such
underwriters to include those Eligible Securities designated by the Selling
Stockholders among the securities to be distributed by such underwriters. The
Selling Stockholders shall be parties to the underwriting agreement between the
Company and such underwriters.
(c) Holdback Agreements. (i) Each holder of Eligible Securities agrees by
-------------------
becoming a holder of such Eligible Securities not to effect any public sale or
distribution of any equity securities of the Company, or any securities
convertible into or exchangeable or exercisable for such securities, including a
sale pursuant to Rule 144 under the Securities Act (or any similar provision
then in force), during the ten days before and the 90 days after any
underwritten registration pursuant to Section 1.1 or 1.2 with respect to which
such holder has a right to participate has become effective, except as part of
such underwritten registration.
(ii) The Company agrees not to effect any public sale or distribution of
its equity securities or securities convertible into or exchangeable or
exercisable for any of such securities during the ten days before and the 90
days after any underwritten registration pursuant to Section 1.1 or 1.2 has
become effective, except as part of such underwritten registration and except
pursuant to (v) registrations on Form S-4 or S-8, or any successor or similar
forms thereto or otherwise pursuant to a dividend reinvestment plan or a
dividend reinvestment and stock purchase plan; (w) sales upon exercise or
exchange, by the holder thereof, of options, warrants or convertible securities;
(x) any other agreement to issue equity securities or securities convertible
into or exchangeable or exercisable for any of such securities in effect on the
date the Selling Stockholders deliver to the Company the request to register, or
include in a registration, Eligible Securities under Section 1.1 or Section 1.2,
as the case may be; (y) any acquisition or similar transaction; and (z) any
dividend reinvestment plan or employee benefit plan (if necessary for such plan
to fulfill its funding obligations in the ordinary course).
Section 1.6. Preparation; Reasonable Investigation. In connection with
-------------------------------------
the preparation and filing of each registration statement under the Securities
Act pursuant to this Agreement in which the Selling Stockholders include
Eligible Securities in such registration, the Company shall (a) give the Selling
Stockholders, their underwriters, if any, and their respective advisors and
counsel the opportunity to participate in the preparation of such registration
statement, each prospectus included therein or filed with the Commission, and
each amendment thereof or
12
supplement thereto (other than any amendment or supplement in the form of a
filing which the Company is required to make pursuant to the Exchange Act), (b)
give the Selling Stockholders and their respective advisors and counsel such
access to its books and records and such opportunities to discuss the business
of the Company with its officers and the independent public accountants who have
certified its financial statements as shall be necessary, in the opinion of such
Selling Stockholders' counsel, to conduct a reasonable investigation within the
meaning of the Securities Act, and (c) consult with the Selling Stockholders
concerning the selection of underwriter's counsel for such offering and
registration.
Section 1.7. Indemnification. (a) Indemnification by the Company. In
--------------- ------------------------------
the event of any registration of any securities of the Company under the
Securities Act pursuant to Section 1.1 or 1.2, the Company shall, and hereby
does, 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
(i) any untrue statement or alleged untrue statement of any material
fact contained (x) in any registration statement under which such securities
were registered under the Securities Act, any preliminary prospectus, final
prospectus or summary prospectus contained therein or used in connection with
the offering of securities covered thereby, or any amendment or supplement
thereto, or (y) in any application or other document or communication (in this
Section 1.7 collectively called an "application") executed by or on behalf of
the Company or based upon written information furnished by or on behalf of the
Company filed in any jurisdiction in order to qualify any securities covered by
such registration statement under the "blue sky" or securities laws thereof, or
(ii) 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 the Company will reimburse such Person for any reasonable
legal or any other expenses (excluding the portion of any legal fees determined
pursuant to the German Fee Regulations) incurred by it in connection with
investigating or defending any such loss, claim, liability, action or
proceeding, provided that the Company shall not be liable in any such case to
--------
the extent that any such loss, claim, damage, liability (or action or proceeding
in respect thereof) or expense arises out of or is based upon an untrue
statement or alleged untrue statement, or omission or alleged omission, made in
such registration statement, any such preliminary prospectus, final prospectus,
summary prospectus, amendment or supplement, or in any application, in reliance
upon and in conformity with written information prepared and furnished to the
Company by any Selling Stockholder or, in the case of a registration under
Section 1.1 hereof, any underwriter specifically for use in the preparation
thereof and provided, further, that the Company shall not
-------- -------
13
be liable to any Person who participates as an underwriter (other than the
Selling Stockholders insofar as they may be deemed underwriters within the
meaning of the Securities Act) in any such registration or any other Person who
controls such underwriter within the meaning of the Securities Act, in any such
case to the extent that any such loss, claim, damage, liability (or action or
proceeding in respect thereof) or expense arises out of such Person's failure to
send or give a copy of the final prospectus, as the same may be then
supplemented or amended, to the Person asserting an untrue statement or alleged
untrue statement or omission or alleged omission at or prior to the written
confirmation of the sale of the securities to such Person if such statement or
omission was timely corrected in such final prospectus. Such indemnity shall
remain in full force and effect regardless of any investigation made by or on
behalf of any such Person and shall survive the transfer of such securities by
such Person. The Company shall not be obligated to pay the fees and expenses of
more than one counsel or firm of counsel for all parties indemnified in respect
of a claim for each jurisdiction in which such counsel is required unless a
conflict of interest exists between such indemnified party and any other
indemnified party in respect of such claim.
(b) Indemnification by the Selling Stockholders. The Company may require,
-------------------------------------------
as a condition to including any Eligible Securities held by a Selling
Stockholder in any registration statement filed pursuant to Sections 1.1 and
1.2, that the Company shall have received an undertaking satisfactory to it from
such Selling Stockholder, to indemnify and hold harmless (in the same manner and
to the same extent as set forth in subsection (a) 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 such registration statement, any
preliminary prospectus, final prospectus or summary prospectus contained
therein, or any amendment or supplement thereto, or any application, if such
untrue statement or alleged untrue statement or omission or alleged omission was
made in reliance upon and in conformity with written information prepared and
furnished to the Company by such Selling Stockholder specifically for use in the
preparation of such registration statement, preliminary prospectus, final
prospectus, summary prospectus, amendment or supplement, or such application.
Such indemnity shall remain in full force and effect, regardless of any
investigation made by or on behalf of the Company or any such director, officer,
employee, agent, advisor or controlling Person and shall survive the transfer of
such securities by such Selling Stockholder. The indemnity provided by each
Selling Stockholder under this Section 1.7(b) shall be only with respect to its
own misstatements and omissions and not with respect to those of any other
seller or prospective seller of securities, and not jointly and severally, and
shall be limited in amount to the net amount of proceeds received by such
Selling Stockholder from the sale of Eligible Securities pursuant to such
registration statement.
(c) Notices of Claims, etc. Promptly after receipt by an indemnified party
-----------------------
of notice of the commencement of any action or proceeding involving a claim
referred to in the preceding subsections of this Section 1.7, such indemnified
party will, if a claim in respect thereof is to be made against an indemnifying
party, give written notice to the latter of the commencement of
14
such action, provided that the failure of any indemnified party to give notice
--------
as provided herein shall not relieve the indemnifying party of its obligations
under the preceding subsections of this Section 1.7, except to the extent that
the indemnifying party is actually prejudiced by such failure to give notice. In
case any such action is brought against an indemnified party, unless a conflict
of interest between such indemnified and indemnifying parties exists in respect
of such claim, the indemnifying party shall be entitled to participate in and to
assume the defense thereof, jointly with any other indemnifying party similarly
notified to the extent that it may wish, with counsel reasonably satisfactory to
such indemnified party, and after notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof, if the
indemnifying party is entitled to do so hereunder, the indemnifying party shall
not be liable to such indemnified party for any legal or other expenses
subsequently incurred by the latter in connection with the defense thereof other
than reasonable costs of investigation. No indemnifying party shall, without the
consent of the indemnified party, consent to entry of any judgment or enter into
any settlement which does not include as an unconditional term thereof the
giving by the claimant or plaintiff to such indemnified party of a release from
all liability in respect to such claim or litigation.
(d) Other Remedies. If for any reason the indemnity set forth in the
--------------
preceding subsections of this Section 1.7 is unavailable, or is insufficient to
hold harmless an indemnified party, other than by reason of the exceptions
provided therein, then the indemnifying party shall contribute to the amount
paid or payable by the indemnified party as a result of such losses, claims,
damages or liabilities in such proportion as is appropriate to reflect the
relative fault of the indemnifying party on the one hand and the indemnified
party on the other hand in connection with the offering of securities and the
statements or omissions or alleged statements or omissions which resulted in
such loss, claim, damage, or liability, as well as any other relevant equitable
considerations. The relative fault of the indemnifying party and of the
indemnified party shall be determined by reference to, among other things,
whether the untrue statement of a material fact or the omission to state a
material fact relates to information supplied by the indemnifying party or by
the indemnified party and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statements or omissions.
No party shall be liable for contribution under this subsection (d) except to
the extent and under such circumstances as such party would have been liable to
indemnify under this Section 1.7 if such indemnification were enforceable under
applicable law.
Section 1.8. Effect of Other Agreements Among the Parties Hereto.
---------------------------------------------------
Nothing in this Agreement shall be construed to alter in any manner whatsoever
any rights or obligations of the Company, FT, DT, any Qualified Subsidiary or
any Qualified Stock Purchaser contained in any other agreement among such
Persons entered into concurrently herewith, including, but not limited to, the
restrictions on transfer of shares of capital stock of the Company contained in
Article II of the Amended and Restated Stockholders' Agreement and the
provisions of Section 7.5(a) of the Amended and Restated Stockholders'
Agreement. In addition, any sales of Eligible Securities made pursuant to this
Agreement shall be effected only in strict accordance with Article II and
Section 7.5(a) of the Amended and Restated Stockholders Agreement.
15
Section 2. Definitions. Capitalized terms used herein and not defined
-----------
in this Section 2 shall have the meanings set forth in the Amended and Restated
Stockholders' Agreement, dated as of the date hereof, by and among FT, DT and
the Company. As used herein, the following terms have the following respective
meanings:
Commission: The Securities and Exchange Commission or any other Federal
----------
agency at the time administering the Securities Act.
CP Preference Period: The period beginning on the CP Registration Rights
--------------------
Commencement Date and ending on the earlier of (i) the date upon which the Cable
Partners have completed registered public offerings of Registrable Securities
(as defined in the Cable Partner Registration Rights Agreement) with an
aggregate public offering price for such Registrable Securities of
$2,000,000,000 or (ii) the date which is 12 months after the CP Registration
Rights Commencement Date.
CP Registration Rights Commencement Date: (i) if the IPO (as defined in
----------------------------------------
the FT/DT Restructuring Agreement) is consummated concurrently with the CP
Closing, the date that is 180 days following the CP Closing, (ii) if the IPO is
not consummated concurrently with the CP Closing but is consummated within 120
days of the CP Closing, the date that is the later of the ninetieth day
following the IPO or 180 days following the CP Closing, or (iii) if the IPO is
not consummated concurrently with the CP Closing or within 120 days thereafter,
the date that is the 180th day following the CP Closing, unless any Cable
Partner shall decide to exercise one of its rights to a demand registration
after such 120th day following the CP Closing but prior to such 180th day
following the CP Closing, in which case it shall be the date the demand notice
is given pursuant to the Cable Partner Registration Rights Agreement.
CP Secondary Preference Period: The period ending on the earlier of (i)
------------------------------
the fourth anniversary of the CP Registration Rights Commencement Date or (ii)
the date upon which the Cable Partners have completed registered public
offerings of Registrable Securities with an aggregate public offering price for
such Registrable Securities of $3,000,000,000.
Eligible Securities: (a) shares of Non-Class A Common Stock held by a party
-------------------
to this Agreement (other than the Company) acquired prior to the conversion of
all shares of Class A Stock into shares of Non-Class A Common Stock, or
termination of the Fundamental Rights, in each case pursuant to ARTICLE SIXTH,
Section 8.5 of the Articles and without violating Article 2 of the Amended and
Restated Standstill Agreement; (b) shares of Non-Class A Common Stock into which
shares of Class A Stock held by a party to this Agreement (other than the
Company) may be converted, provided that for all purposes under this Agreement,
--------
the holders of such shares of Class A Stock shall be deemed to be the holders of
such shares of Non-Class A Common Stock into which such shares of Class A Stock
may be converted; and (c) any securities issued or issuable with respect to such
Class A Stock or such Non-Class A Common Stock by way of a stock dividend or
stock split or in connection with a combination of shares, recapitalization,
merger, consolidation or other reorganization or otherwise. As to any particular
16
Eligible Securities, once issued such securities shall cease to be Eligible
Securities when (i) a registration statement with respect to the sale of such
securities shall have become effective under the Securities Act and such
securities shall have been disposed of, (ii) they shall have been distributed to
the public pursuant to Rule 144 (or any successor provisions) under the
Securities Act, (iii) they shall have been otherwise transferred (except
transfers to a Qualified Subsidiary or Qualified Stock Purchaser), new
certificates for them not bearing a legend restricting further transfer shall
have been delivered by the Company and subsequent disposition of them shall not
require registration or qualification of them under the Securities Act or any
state securities or blue sky law then in force, or (iv) they shall have ceased
to be outstanding.
Exchange Act: The Securities Exchange Act of 1934, or any similar Federal
------------
statute, and the rules and regulations of the Commission thereunder, all as the
same shall be in effect at the time.
German Fee Regulations: The Bundesgebuhrenordnung fur Rechtsanwalte vom 26.
---------------------- -----------------------------------------------
Juli 1957 (BGBl. I S. 907) (as it or any successor provision may be in effect
--------------------------
from time to time).
PCS Group: The meaning set forth in the Articles.
---------
Registration Expenses: All expenses incident to the Company's performance
---------------------
of or compliance with Sections 1.1, 1.2 and 1.3 hereof, including, without
limitation, (a) all registration, filing and NASD fees, (b) all fees and
expenses of complying with securities or blue sky laws, (c) all word processing,
duplicating and printing expenses, (d) messenger and delivery expenses, (e) the
reasonable fees and disbursements of counsel for the Company (excluding the
portion of any fees determined pursuant to the German Fee Regulations) and of
its independent public accountants, including the expenses of any "comfort"
letters required by or incident to such performance and compliance, (f) premiums
and other costs of policies of insurance against liabilities arising out of the
public offering of the Eligible Securities being registered (if the Company
elects to obtain any such insurance), and (g) any fees and disbursements of
underwriters customarily paid by issuers or sellers of securities, but excluding
underwriting discounts and commissions, provided, that (i) except as otherwise
--------
specifically provided herein, fees and disbursements of counsel to one or more
Selling Stockholders and (ii) transfer taxes shall not be included as
Registration Expenses and shall not be paid by the Company.
Securities Act: The Securities Act of 1933, or any similar Federal statute,
--------------
and the rules and regulations of the Commission thereunder, all as the same
shall be in effect at the time.
Selling Stockholders: Holders of Eligible Securities that with respect to a
--------------------
particular registration have delivered to the Company a request to register, or
include in a registration, Eligible Securities held by them under Section 1.1 or
Section 1.2 of this Agreement.
In addition, as used herein, the term "Cable Partners" shall have the
meaning given to such term in the FT/DT Restructuring Agreement, and the term
"Cable Partner Registration
17
Rights Agreement" shall mean the Registration Rights Agreement dated as of the
date hereof among the Company and the Cable Partners.
Section 3. Miscellaneous.
-------------
Section 3.1. Rule 144. The Company shall file the reports required to be
--------
filed by it under the Securities Act and the Exchange Act and the rules and
regulations adopted by the Commission thereunder (or, if the Company is not
required to file such reports, shall, upon the request of any holder of Eligible
Securities, make publicly available other information) and shall take such
further action as any holder of Eligible Securities may reasonably request, all
to the extent required from time to time to enable such holder to sell Eligible
Securities without registration under the Securities Act pursuant to (a) Rule
144 under the Securities Act, as such Rule may be amended from time to time, or
(b) any similar rule or regulation hereafter adopted by the Commission. Upon the
request of any holder of Eligible Securities, the Company shall deliver to such
holder a written statement as to whether it has complied with such requirements.
Section 3.2. Additional Parties. Upon the Transfer of any shares of
------------------
Class A Stock to a Qualified Subsidiary or Qualified Stock Purchaser in
accordance with the terms of the Amended and Restated Stockholders' Agreement,
such Qualified Subsidiary or Qualified Stock Purchaser shall become a party to
this Agreement by agreeing in writing to be bound by the terms and conditions of
this Agreement pursuant to an instrument of assumption in the form of Exhibit B
to the Amended and Restated Stockholders' Agreement, in the case of a Qualified
Subsidiary, or an instrument of assumption in the form of Exhibit C to the
Amended and Restated Stockholders' Agreement, in the case of a Qualified Stock
Purchaser, and shall thereby be deemed a holder of Eligible Securities for the
purposes of this Agreement.
Section 3.3. Notices. All notices and other communications required or
-------
permitted by this Agreement shall be made in writing in the English language and
any such notice or communication shall be deemed delivered when delivered in
person, transmitted by telex or telecopier, or seven days after it has been sent
by air mail, as follows:
FT: 0 xxxxx x'Xxxxxxx
00000 Xxxxx Cedex 15
France
Attn: Group Executive Vice President Resources
Tel: (00-0) 00-00-00-00
Fax: (00-0) 00-00-00-00
18
with a copy to:
0 xxxxx x'Xxxxxxx
00000 Xxxxx Cedex 15
France
Attn: General Counsel
Tel: (00-0) 00-00-00-00
Fax: (00-0) 00-00-00-00
with a copy to:
Shearman & Sterling
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
X.X.X.
Attn: Xxxxxx X. Xxxx, Xx., Esq.
Tel: (000) 000-0000
Fax: (000) 000-0000
DT: Xxxxxxxxx-Xxxxx-Xxxxx 000
X-00000 Xxxx
Xxxxxxx
Attn: Chief Executive Officer
Tel: 00-000-000-0000
Fax: 00-000-000-0000
with a copy to:
Cleary, Gottlieb, Xxxxx & Xxxxxxxx
Xxx Xxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
X.X.X.
Attn: Xxxxxx X. Xxxxx, Esq.
Tel: (000) 000-0000
Fax: (000) 000-0000
Company: 0000 Xxxxxxx Xxxxxxx
Xxxxxxx, Xxxx Wing
Westwood, Kansas 66205
U.S.A.
Attn: General Counsel
Tel: (000) 000-0000
Fax: (000) 000-0000
19
with a copy to:
King & Spalding
000 Xxxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxx 00000
X.X.X.
Attn: Xxxxx X. Xxxxxxxxx, Esq.
Tel: (000) 000-0000
Fax: (000) 000-0000
The parties to this Agreement shall promptly notify each other in the manner
provided in this Section 3.3 of any change in their respective addresses. A
notice of change of address shall not be deemed to have been given until
received by the addressee. Communications by telex or telecopier also shall be
sent concurrently by mail, but shall in any event be effective as stated above.
Section 3.4. Waiver, Amendment, etc. This Agreement may not be amended
-----------------------
or supplemented, and no waivers of or consents to departures from the provisions
hereof shall be effective, unless set forth in a writing signed by, and
delivered to, all the parties hereto. No failure or delay of any party in
exercising any power or right under this Agreement will operate as a waiver
thereof, nor will any single or partial exercise of any right or power, or any
abandonment or discontinuance of steps to enforce such right or power, preclude
any other or further exercise thereof or the exercise of any other right or
power.
Section 3.5. Binding Agreement; No Third Party Beneficiaries. This
-----------------------------------------------
Agreement will be binding upon and inure to the benefit of the parties hereto
and their successors and permitted assigns. Except as set forth herein and by
operation of law, no party to this Agreement may assign or delegate all or any
portion of its rights, obligations or liabilities under this Agreement without
the prior written consent of each other party to this Agreement. Nothing
expressed or implied herein is intended or shall be construed to confer upon or
give to any third party any rights or remedies by virtue hereof.
Section 3.6. Governing Law; Dispute Resolution; Equitable Relief. (A)
---------------------------------------------------
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF
THE STATE OF NEW YORK (REGARDLESS OF THE LAWS THAT MIGHT OTHERWISE GOVERN UNDER
APPLICABLE PRINCIPLES OF CONFLICTS OF LAW).
(B) EACH PARTY TO THIS AGREEMENT IRREVOCABLY CONSENTS AND AGREES THAT ANY
LEGAL ACTION, SUIT OR PROCEEDING AGAINST IT WITH RESPECT TO ITS OBLIGATIONS OR
LIABILITIES UNDER OR ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT SHALL
BE BROUGHT BY SUCH PARTY
20
ONLY IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK
OR, IN THE EVENT (BUT ONLY IN THE EVENT) SUCH COURT DOES NOT HAVE SUBJECT MATTER
JURISDICTION OVER SUCH ACTION, SUIT OR PROCEEDING, IN THE COURTS OF THE STATE OF
NEW YORK SITTING IN NEW YORK CITY, AND EACH PARTY TO THIS AGREEMENT HEREBY
IRREVOCABLY ACCEPTS AND SUBMITS TO THE JURISDICTION OF EACH OF THE AFORESAID
COURTS IN PERSONAM, WITH RESPECT TO ANY SUCH ACTION, SUIT OR PROCEEDING. EACH
PARTY HERETO IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT THAT IT MAY HAVE
TO A JURY TRIAL IN ANY LEGAL ACTION, SUIT OR PROCEEDING WITH RESPECT TO, OR
ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT. EACH OF FT AND DT HEREBY
IRREVOCABLY DESIGNATES CT CORPORATION SYSTEM (IN SUCH CAPACITY, THE "PROCESS
AGENT"), WITH XX XXXXXX XX 0000 XXXXXXXX, XXX XXXX, XXX XXXX 00000, AS ITS
DESIGNEE, APPOINTEE AND AGENT TO RECEIVE, FOR AND ON ITS BEHALF SERVICE OF
PROCESS IN SUCH JURISDICTION IN ANY LEGAL ACTION OR PROCEEDINGS WITH RESPECT TO
THIS AGREEMENT, AND SUCH SERVICE SHALL BE DEEMED COMPLETE UPON DELIVERY THEREOF
TO THE PROCESS AGENT, PROVIDED THAT IN THE CASE OF ANY SUCH SERVICE UPON THE
--------
PROCESS AGENT, THE PARTY EFFECTING SUCH SERVICE SHALL ALSO DELIVER A COPY
THEREOF TO FT AND DT IN THE MANNER PROVIDED IN SECTION 3.3. FT AND DT SHALL TAKE
ALL SUCH ACTION AS MAY BE NECESSARY TO CONTINUE SAID APPOINTMENT IN FULL FORCE
AND EFFECT OR TO APPOINT ANOTHER AGENT SO THAT FT AND DT WILL AT ALL TIMES HAVE
AN AGENT FOR SERVICE OF PROCESS FOR THE ABOVE PURPOSES IN NEW YORK, NEW YORK. IN
THE EVENT OF THE TRANSFER OF ALL OR SUBSTANTIALLY ALL OF THE ASSETS AND BUSINESS
OF THE PROCESS AGENT TO ANY OTHER CORPORATION BY CONSOLIDATION, MERGER, SALE OF
ASSETS OR OTHERWISE, SUCH OTHER CORPORATION SHALL BE SUBSTITUTED HEREUNDER FOR
THE PROCESS AGENT WITH THE SAME EFFECT AS IF NAMED HEREIN IN PLACE OF CT
CORPORATION SYSTEM. EACH OF FT AND DT FURTHER IRREVOCABLY CONSENTS TO THE
SERVICE OF PROCESS OUT OF ANY OF THE AFOREMENTIONED COURTS IN ANY SUCH ACTION OR
PROCEEDING BY THE MAILING OF COPIES THEREOF BY REGISTERED AIRMAIL, POSTAGE
PREPAID, TO SUCH PARTY AT ITS ADDRESS SET FORTH IN THIS AGREEMENT, SUCH SERVICE
OF PROCESS TO BE EFFECTIVE UPON ACKNOWLEDGMENT OF RECEIPT OF SUCH REGISTERED
MAIL. NOTHING HEREIN SHALL AFFECT THE RIGHT OF ANY PARTY TO SERVE PROCESS IN ANY
OTHER MANNER PERMITTED BY APPLICABLE LAW. EACH OF FT AND DT EXPRESSLY
ACKNOWLEDGES THAT THE FOREGOING WAIVER IS INTENDED TO BE IRREVOCABLE UNDER THE
LAWS OF THE STATE OF NEW YORK AND OF THE UNITED STATES OF AMERICA.
(C) EACH PARTY HERETO AGREES THAT MONEY DAMAGES WOULD NOT BE A SUFFICIENT
REMEDY FOR THE OTHER PARTIES HERETO FOR ANY BREACH
21
OF THIS AGREEMENT BY IT, AND THAT IN ADDITION TO ALL OTHER REMEDIES THE OTHER
PARTIES HERETO MAY HAVE, THEY SHALL BE ENTITLED TO SPECIFIC PERFORMANCE AND TO
INJUNCTIVE OR OTHER EQUITABLE RELIEF AS A REMEDY FOR ANY SUCH BREACH TO THE
EXTENT PERMITTED BY APPLICABLE LAW. EACH PARTY HERETO AGREES NOT TO OPPOSE THE
GRANTING OF SUCH RELIEF IN THE EVENT A COURT DETERMINES SUCH A BREACH HAS
OCCURRED, AND TO WAIVE ANY REQUIREMENT FOR THE SECURING OR POSTING OF ANY BOND
IN CONNECTION WITH SUCH REMEDY.
Section 3.7. Severability. The invalidity or unenforceability of any
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provision hereof in any jurisdiction will not affect the validity or
enforceability of the remainder hereof in that jurisdiction or the validity or
enforceability of this Agreement, including that provision, in any other
jurisdiction. To the extent permitted by applicable law, each party hereto
waives any provision of law that renders any provision hereof prohibited or
unenforceable in any respect. If any provision of this Agreement is held to be
unenforceable for any reason, it shall be adjusted to the extent permitted by
applicable law rather than voided, if possible, in order to achieve the intent
of the parties to this Agreement to the extent possible.
Section 3.8. Translation. The parties have negotiated this Agreement in
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the English language, and have prepared successive drafts and the definitive
text of this Agreement in the English language. For purposes of complying with
the loin 94-665 du 4 aout 1994 relative a l'emploi de la langue francaise,
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the parties hereto have prepared a French version of this Agreement, which
French version was executed and delivered simultaneously with the execution and
delivery of the English version hereof, such English version having likewise
been executed and delivered. The parties deem the French and English versions of
this Agreement to be equally authoritative.
Section 3.9. Table of Contents; Headings; Counterparts. The table of
-----------------------------------------
contents and the headings in this Agreement are for convenience of reference
only and will not affect the construction of any provisions hereof. This
Agreement may be executed in one or more counterparts, each of which when so
executed and delivered will be deemed an original but all of which will
constitute one and the same Agreement.
Section 3.10. Entire Agreement. This Agreement embodies the entire
----------------
agreement and understanding of the parties hereto in respect of the subject
matter contained herein, provided that this provision shall not abrogate any
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other written agreement between the parties executed simultaneously with this
Agreement. This Agreement supersedes all prior agreements and understandings
between the parties with respect to such subject matter.
Section 3.11. Waiver of Immunity. Each of FT and DT agrees that, to the
------------------
extent that it or any of its property is or becomes entitled at any time to any
immunity on the grounds of sovereignty or otherwise based upon its status as an
agency or instrumentality of government from any legal action, suit or
proceeding or from set off or counterclaim relating to this
22
Agreement from the jurisdiction of any competent court described in Section 3.6,
from service of process, from attachment prior to judgment, from attachment in
aid of execution of a judgment, from execution pursuant to a judgment or an
arbitral award or from any other legal process in any jurisdiction, 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 or thereof
(including any obligation for the payment of money). Each of FT and DT agrees
that the waiver in this provision is irrevocable and is not subject to
withdrawal in any jurisdiction or under any statute, including the
Foreign Sovereign Immunities Act, 28 U.S.C. (P) 1602 et seq. The foregoing
-- ---
waiver shall constitute a present waiver of immunity at any time any action is
initiated against FT or DT with respect to this Agreement.
Section 3.12. Currency. All amounts payable under this Agreement
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shall be payable in U.S. dollars.
[Signature page follows.]
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IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
and delivered as of the date first above written.
SPRINT CORPORATION
By: /s/ Xxx X. Xxxxxx
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Name: Xxx X. Xxxxxx
Title: Vice President and Secretary
FRANCE TELECOM S.A.
By: /s/ Xxxxxxx Xxxxxx
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Name: Xxxxxxx Xxxxxx
Title: Senior Vice President
DEUTSCHE TELEKOM AG
By: /s/ Dr. Xxx Xxxxxx
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Name: Dr. Xxx Xxxxxx
Title: vorstandsvorsitzender
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