EXHIBIT 3
===============================================================================
REGISTRATION RIGHTS AGREEMENT
AMONG
FRANCE TELECOM,
DEUTSCHE TELEKOM AG
AND
SPRINT CORPORATION
Dated as of January 31, 1996
===============================================================================
TABLE OF CONTENTS
Page
Section 1. Registration under the Securities Act. 1
1.1. Registration on Request 1
1.2. Incidental Registration 5
1.3. Registration Procedures 7
1.4. Delay of Filing or Sales 12
1.5. Underwritten Offerings 13
1.6. Preparation; Reasonable Investigation 14
1.7. Indemnification 15
1.8. Effect of Other Agreements Among the Parties
Hereto 18
Section 2. Definitions 19
Section 3. Miscellaneous. 21
3.1. Rule 144 21
3.2. Additional Parties 21
3.3. Notices 21
3.4. Waiver, Amendment, etc 23
3.5. Binding Agreement; No Third Party
Beneficiaries 23
3.6. Governing Law; Dispute Resolution; Equitable
Relief 23
3.7. Severability 25
3.8. Translation 25
3.9. Table of Contents; Headings; Counterparts 25
3.10. Entire Agreement 25
3.11. Waiver of Immunity 26
3.12. Currency 27
REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT, dated as of January 31, 1996 (the
"Agreement"), among France Telecom, an exploitant public organized under the
laws of France ("FT"); Deutsche Telekom AG, an Aktiengesellschaft organized
under the laws of Germany ("DT"); and Sprint Corporation, a corporation
organized under the laws of Kansas (the "Company").
RECITALS
--------
WHEREAS, each of the Company, Sprint Global Venture, Inc., a wholly-owned
subsidiary of the Company ("Sprint Sub"), FT and DT have formed a joint venture
to provide telecommunications services as provided in the Joint Venture
Agreement, dated as of June 22, 1995, as amended, among Sprint Sub, FT, DT and
the Company, and to pursue various telecommunications opportunities around the
world as further provided therein;
WHEREAS, pursuant to the Investment Agreement, dated as of July 31, 1995,
as amended, among FT, DT and the Company (the "Investment Agreement"), FT and DT
are purchasing from the Company shares of Class A Stock of the Company; and
WHEREAS, the parties hereto have determined that it is in their best
interests that they enter into this Agreement providing for certain rights and
restrictions with respect to the shares of Class A Stock owned by FT and DT and
any Qualified Subsidiaries or Qualified Stock Purchasers and certain related
rights and obligations of the Company.
NOW, THEREFORE, in consideration of the mutual covenants and obligations
set forth herein, each of FT, DT and the Company agrees as follows:
Section 1. Registration under the Securities Act.
Section 1.1 Registration on Request. (a) Request. Subject to Article II
of the 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 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 five registrations requested by
holders of Eligible Securities pursuant to this Section 1.1 shall have been
effected unless, as to no more than two 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 two registrations; provided, however, that if
the Company proposes to redeem pursuant to Section 2 of that portion of ARTICLE
SIXTH of the Articles entitled "GENERAL PROVISIONS RELATING TO ALL STOCK" 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 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 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 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 of Common Stock on the preceding ten Business Days).
(b) Withdrawal. The Selling Stockholders shall
have the right to request 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, 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 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.
(c) Effective Registration Statement. A registration requested pursuant
to 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
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 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 Stockholders' Agreement.
(f) Selection of Underwriters. If a registration pursuant to this
Section 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
this Section 1.1 involves an underwritten offering, and the managing or lead
underwriter or underwriters shall 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) (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 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, 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, 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, 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 participation on a pro rata basis with the
Selling Stockholders, the managing or lead underwriter or underwriters
determines in its good faith judgment that the number of securities requested to
be included in such registration by the Selling Stockholders and the Company
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 securities any registration rights inconsistent with the provisions of this
Section 1.1.
Section 1.2. Incidental Registration. (a) Right to Include Eligible
Securities. If the Company at any time proposes to register any shares of its
Common 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.
(b) Priority in Incidental Registrations. If a registration pursuant to
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, (x) first, the securities proposed to be
included by the Company and (y) second, the Eligible Securities requested to
be included in such registration by the Selling Stockholders and the securities
of other Persons requested to be included in such registration, each pro rata in
accordance with the number of securities proposed to be included by such other
Persons and the number of Eligible Securities so requested to be included,
respectively; and (ii) if the registration is a secondary registration on behalf
of a Person or Persons other than the Company or a holder of Eligible
Securities, (x) first, the securities proposed to be included by such other
Person or Persons (unless, the Company shall have negotiated an equal or better
priority with such Person or Persons), (y) second, 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 (unless the Company has negotiated an
equal or better priority with such other Person or Persons, in which case the
securities proposed to be included by the Company shall have higher priority
than the Eligible Securities proposed to be included by the Selling
Shareholders), and (z) third, 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.
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
securities any registration rights inconsistent with the provisions of this
Section 1.2.
(d) Expenses. Except as otherwise provided in this Agreement, the Company
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
this Section 1.2 involves an underwritten offering, the managing or lead
underwriter or underwriters shall be selected by the Company.
Section 1.3. Registration Procedures. If and whenever the Company is
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 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 pro-
spectus 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, provided that the Company
shall not for any such purpose be required to (i) 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 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 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 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 state-
ment 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 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 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 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 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 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
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 par-
ty, 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 Stockholders' Agreement and the
provisions of Section 7.5(a) of the 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 Stockholders
Agreement.
Section 2. Definitions. Capitalized terms used herein and not defined
in this Section 2 shall have the meanings set forth in the Stockholders'
Agreement, dated as of January 31, 1996, 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.
Eligible Securities: (a) shares of 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 Common Stock, or termination of
the Fundamental Rights, in each case pursuant to Section 7 of the Class A
Provisions and without violating Article 2 of the Standstill Agreement; (b)
shares of 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 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
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 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).
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.
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 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
Stockholders' Agreement, in the case of a Qualified Subsidiary, or an instrument
of assumption in the form of Exhibit C to the 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: Executive Vice President,
International
Tel: (00-0) 00-00-00-00
Fax: (00-0) 00-00-00-00
with a copy to:
Debevoise & Xxxxxxxx
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
X.X.X.
Attn: Xxxxx Xxxxxx, 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:
Xxxxx, Xxxxx & Xxxxx
0000 Xxxxxxxxxxxx Xxxxxx, X.X.
Xxxxxxxxxx, X.X. 00000
X.X.X.
Attn: Xxxxxx Xxxx, 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
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 (including, without limitation, any successor of FT in a
privatization) 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. In the event
of a reorganization of FT pursuant to, as a result of or in connection with, a
privatization, the corporation or other
entity formed to continue the business activities of FT shall assume the rights
and obligations of FT under this Agreement.
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 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 OF THIS AGREEMENT
BY IT, AND THAT IN ADDITION TO ALL OTHER REMEDIES THE OTHER PARTIES HERETO MAY
HAVE, THEY SHALL BE ENTITLED TO SPECIFIC PERFORMANCE AND TO INJUNCTIVE OR OTHER
EQUITABLE RELIEF AS A REMEDY FOR ANY SUCH BREACH. EACH PARTY HERETO AGREES NOT
TO OPPOSE THE GRANTING OF SUCH RELIEF IN THE EVENT A COURT DETERMINES 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
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 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 both this
Agreement and the Memorandum of Understanding, dated June 14, 1994 (the "MOU"),
among each of the parties, in the English language, and have prepared successive
drafts and the definitive texts of the MOU and this Agreement in the English
language. For purposes of complying with the loi n 94-665 du 4 aout 1994
relative a l'emploi de la langue francaise, the parties hereto have prepared a
French version of this Agreement, which French version was executed and
delivered simultaneously with the execution and delivery of the English version
hereof, 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
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 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 shall be payable in U.S. dollars.
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
------------------------------
Title: Secretary
FRANCE TELECOM
By: /s/ Henri Chantreuil
------------------------------
Title: Vice President
DEUTSCHE TELEKOM AG
By: /s/ Xx. Xxxxxxx May
------------------------------
Title: Member of the Board of
Management
