Exhibit 2
EXECUTION COPY
_________________________________________________
MASTER TRANSFER AGREEMENT
_________________________________________________
Between and Among
FRANCE TELECOM,
DEUTSCHE TELEKOM AG,
NAB NORDAMERIKA BETEILIGUNGS HOLDING GMBH,
ATLAS TELECOMMUNICATIONS, S.A.,
SPRINT CORPORATION,
SPRINT GLOBAL VENTURE, INC.
and
THE JV ENTITIES SET FORTH ON SCHEDULE II HERETO
Dated as of January 21, 2000
TABLE OF CONTENTS
Page
ARTICLE I DEFINITIONS
SECTION 1.01. Certain Defined Terms 2
SECTION 1.02. Other Definitions 8
ARTICLE II PURCHASE AND SALE OF SPRINT VENTURE INTERESTS
SECTION 2.01. Sale of the FT Venture Interests 10
SECTION 2.02. FT Purchase Price 10
SECTION 2.03. Sale of the DT Venture Interests 10
SECTION 2.04. DT Purchase Price 10
SECTION 2.05. Adjustments for Distributions 10
SECTION 2.06. Closing 10
SECTION 2.07. Closing Deliveries by Sprint and Sprint Sub 11
SECTION 2.08. Closing Deliveries by FT 11
SECTION 2.09. Closing Deliveries by DT 12
SECTION 2.10. Closing Deliveries by the Joint Venture 12
ARTICLE III REPRESENTATIONS AND WARRANTIES OF ATLAS, FT, NAB
AND DT
SECTION 3.01. Due Incorporation or Formation; Authorization of
Agreement 12
SECTION 3.02. No Conflict 13
SECTION 3.03. Governmental Consents and Approvals 13
SECTION 3.04. Litigation 14
SECTION 3.05. Brokers 14
SECTION 3.06. No Sovereign Immunity 14
SECTION 3.07. Investment Intent 14
ARTICLE IV REPRESENTATIONS AND WARRANTIES OF SPRINT AND
SPRINT SUB
SECTION 4.01. Due Incorporation or Formation; Authorization
of Agreement 15
SECTION 4.02. No Conflict 15
SECTION 4.03. Governmental Consents and Approvals 16
SECTION 4.04. Ownership of Sprint Venture Interests 16
SECTION 4.05. Litigation 16
SECTION 4.06. Brokers 17
SECTION 4.07. Kansas Business Combination Statute 17
SECTION 4.08. Description of Amended WorldCom Merger
Agreement 17
ARTICLE V COVENANTS
SECTION 5.01. Management of the Joint Venture 17
SECTION 5.02. Access to Information 19
SECTION 5.03. Agreement to Vote in Favor of the WorldCom
Merger and Other Matters 20
SECTION 5.04. Initial FT/DT Investment Changes 23
SECTION 5.05. Subsequent FT/DT Investment Changes 29
SECTION 5.06. Blackout Period; Consultation Regarding
Sales by FT/DT 30
SECTION 5.07. Initial Preparation of Registration Statement 30
SECTION 5.08. Settlement Net Payments 31
SECTION 5.09. Modifications to Existing Agreements; Releases 31
SECTION 5.10. Stockholder Loans 32
SECTION 5.11. Further Action; Consents; Filings 32
SECTION 5.12. Regulatory Qualifications 33
SECTION 5.13. Notice of Developments 33
SECTION 5.14. Termination of Joint Venture 34
SECTION 5.15. Amendment to Original WorldCom Merger
Agreement; Other Corporate Approvals 34
SECTION 5.16. Covenant Regarding Registration Rights
Agreements 34
SECTION 5.17. Covenant Regarding Separate Standstill
Agreements 34
ARTICLE VI CONDITIONS TO THE CLOSING
SECTION 6.01. Conditions to the Obligations of Each Party 35
SECTION 6.02. Conditions to the Obligations of Sprint
and Sprint Sub 36
SECTION 6.03. Conditions to the Obligations of Atlas,
FT and DT 36
ARTICLE VII TAX MATTERS
SECTION 7.01. Tax Obligations 37
SECTION 7.02. Miscellaneous 38
ARTICLE VIII INDEMNIFICATION
SECTION 8.01. Survival of Representations and Warranties 40
SECTION 8.02. Indemnification 40
ARTICLE IX TERMINATION
SECTION 9.01. Termination 42
SECTION 9.02. Effect of Termination 43
ARTICLE X GENERAL PROVISIONS
SECTION 10.01. Waiver 45
SECTION 10.02. Expenses 45
SECTION 10.03. Notices 45
SECTION 10.04. Headings 49
SECTION 10.05. Severability 49
SECTION 10.06. Entire Agreement 49
SECTION 10.07. Assignment 49
SECTION 10.08. No Third-Party Beneficiaries 50
SECTION 10.09. Amendment 50
SECTION 10.10. Governing Law and Jurisdiction 50
SECTION 10.11. Interpretation 51
SECTION 10.12. Counterparts 51
SECTION 10.13. Specific Performance 51
SECTION 10.14. No Partnership 51
SECTION 10.15. Terms Generally 51
SECTION 10.16. Public Announcements 51
SCHEDULES AND ANNEXES
Schedule I Sprint Venture Interests
Schedule II JV Entities
Schedule III Allocation of Purchase Price
Schedule IV Interim Covenants
Schedule V Initial Press Release
Annex A Transition Plan
Annex B Modifications to the Joint Venture Agreement
Annex C Exit Arrangements
Annex D Proxy
Annex E Xxxx of Sale
THIS MASTER TRANSFER AGREEMENT is made and entered into
as of January 21, 2000, between and among France Telecom S.A.
("FT"), a societe anonyme duly organized under the laws of
France, Deutsche Telekom AG ("DT"), an Aktiengesellschaft duly
organized under the laws of Germany, NAB Nordamerika Beteiligungs
Holding GmbH ("NAB"), a limited liability company duly organized
under the laws of Germany and a wholly owned subsidiary of DT,
Atlas Telecommunications S.A. ("Atlas"), a societe anonyme duly
organized under the laws of Belgium, Sprint Corporation
("Sprint"), a corporation duly organized under the laws of
Kansas, United States of America, Sprint Global Venture, Inc.
("Sprint Sub"), a corporation duly organized under the laws of
Kansas, United States of America, and the JV Entities set forth
on Schedule II hereto (the "JV Entities"). FT, DT, NAB, Atlas,
Sprint, Sprint Sub and the JV Entities are collectively referred
to herein as the "Parties".
W I T N E S S E T H:
WHEREAS, each of FT, DT, Atlas, Sprint and Sprint Sub
is a party to the Joint Venture Agreement, dated as of June 22,
1995, as amended on January 31, 1996 and June 30, 1997 (as
amended, the "JVA"), wherein they agreed to form the Joint
Venture (as defined herein) to provide international
telecommunications services;
WHEREAS, each of FT and DT purchased equal amounts of
the common stock of Sprint pursuant to an Investment Agreement,
dated as of July 31, 1995, and have continued to purchase and
subscribe for such capital stock in order for FT and DT to
maintain an aggregate approximate twenty percent ownership
interest in Sprint voting capital stock;
WHEREAS, each of FT, DT, NAB and Sprint is a party to
the Amended and Restated Stockholders' Agreement, dated as of
November 23, 1998 (the "Stockholders' Agreement") and the Amended
and Restated Registration Rights Agreement, dated as of November
23, 1998 (the "Registration Rights Agreement"); each of FT, DT
and Sprint is a party to the Amended and Restated Standstill
Agreement, dated as of November 23, 1998 (the "Original
Standstill Agreement"); and each of Sprint and NAB is a party to
the Qualified Subsidiary Standstill Agreement, dated as of
December 29, 1999 (the "NAB Standstill Agreement", and, together
with the Original Standstill Agreement, the "Standstill
Agreements");
WHEREAS, Sprint and MCI WORLDCOM, Inc. ("WorldCom")
have entered into an Agreement and Plan of Merger, dated as of
October 4, 1999 (the "Original WorldCom Merger Agreement"),
pursuant to which Sprint has agreed to merge with and into
WorldCom (the "WorldCom Merger");
WHEREAS, Sprint has advised FT and DT that the
disposition of Sprint's interests in the Joint Venture was
contemplated by Sprint and WorldCom at the time the Original
WorldCom Merger Agreement was executed;
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WHEREAS, FT and DT have agreed to purchase and, in
order to eliminate any material noncompetition and exclusivity
provisions that would be applicable to WorldCom after the
WorldCom Merger, Sprint has agreed to sell, Sprint's interests in
the Joint Venture in accordance with the terms hereof;
WHEREAS, it is expected that FT and DT will enter into
an agreement through which one of them will purchase the interest
of the other in the Joint Venture (which may include the interest
of the other in Atlas) and the selling party may also assign its
right provided for herein to purchase the Sprint Venture
Interests to the other (or to Atlas) (collectively, such
transactions are hereinafter referred to as the "FT/DT
Transactions"); and
WHEREAS, contemporaneously with, and as an inducement
to the Parties to proceed with, the execution of this Agreement
(1) WorldCom is executing a Consent and Assumption in favor of FT
and DT (the "Consent and Assumption"), (2) the Parties (other
than NAB) are entering into a Settlement Agreement (the
"Settlement Agreement"), (3) French legal counsel for FT is
delivering to Sprint and Sprint Sub a legal opinion in form and
substance, and by legal counsel, reasonably acceptable to Sprint
and Sprint Sub regarding the inapplicability of loi n1 94-665 du
4 aout 1994 relative a l'emploi de la langue francaise to the
transactions contemplated by this Agreement and the agreements to
be executed and delivered in connection herewith (including the
Proxy (as defined in Section 5.03(a)), (4) subject to obtaining
necessary approvals from their respective boards of directors,
WorldCom and Sprint will be entering into the Amended and
Restated Agreement and Plan of Merger (the "Amended WorldCom
Merger Agreement") substantially in the form previously delivered
to FT, DT and NAB and (5) Global One Communications, L.L.C. and
Sprint Communications Company L.P. are entering into the
Distribution Agreement that is attached to the Transition Plan
(the "Distribution Agreement").
NOW, THEREFORE, in consideration of the premises and
the mutual agreements and covenants hereinafter set forth, the
Parties, intending to be legally bound, hereby agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. Certain Defined Terms. Capitalized
terms that are not otherwise defined herein shall have the
meanings assigned to them in the JVA. As used in this
Agreement, the following terms shall have the following meanings:
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"Action" means any claim, action, suit, arbitration,
inquiry, proceeding or investigation by or before any
Governmental Authority.
"Affiliate" means, with respect to any specified
Person, any other Person that directly, or indirectly
through one or more intermediaries, controls, is controlled
by, or is under common control with, such specified Person;
provided, however, that for purposes of this Agreement, the
Joint Venture shall not be an Affiliate of Sprint, FT or DT.
"Agreement" or "this Agreement" means this Master
Transfer Agreement, between and among FT, DT, NAB, Atlas,
Sprint, Sprint Sub and the JV Entities (including the
Transition Plan and the other Annexes and Schedules hereto)
and all amendments hereto made in accordance with the
provisions of Section 10.09.
"Applicable Rate" means the three-month LIBOR rate (see
Telerate page 3750), plus 20 basis points per annum.
"beneficial owner" (including the terms "beneficially
own" or "beneficial ownership") shall have the meanings
given to such terms in Rule 13d-3 under the Exchange Act,
provided, however, that (a) neither FT nor any of its
controlled Affiliates (excluding a Qualified Subsidiary
owned by both FT and/or its controlled Affiliates and DT
and/or its controlled Affiliates) shall for purposes of this
Agreement be a beneficial owner of any Sprint securities
that are owned of record by (i) DT or any of its controlled
Affiliates (excluding a Qualified Subsidiary owned by both
FT and/or its controlled Affiliates and DT and/or its
controlled Affiliates) or (ii) any directors, officers or
employees of DT, FT or any of their controlled Affiliates;
and (b) neither DT nor any of its controlled Affiliates
(excluding a Qualified Subsidiary owned by both FT and/or
its controlled Affiliates and DT and/or its controlled
Affiliates) shall for purposes of this Agreement be a
beneficial owner of any Sprint securities that are owned of
record by (i) FT or any of its controlled Affiliates
(excluding a Qualified Subsidiary owned by both FT and/or
its controlled Affiliates and DT and/or its controlled
Affiliates) or (ii) any directors, officers or employees of
DT, FT or any of their controlled Affiliates.
"Cable Holders" has the meaning set forth in the Sprint
Articles of Incorporation.
"Class A Director" has the meaning set forth in the
Sprint Articles of Incorporation.
"Class A Stock" has the meaning set forth in the Sprint
Articles of Incorporation.
"Code" means the United States Internal Revenue Code of
1986, as amended through the date of this Agreement.
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"Company Stock Payment Notes" has the meaning set forth
in the Stockholders' Agreement.
"control" (including the terms, "controlled",
"controlled by" and "under common control with"), with
respect to the relationship between or among two or more
Persons, means the possession, directly or indirectly or as
trustee or executor, of the power to direct or cause the
direction of the affairs or management of a Person, whether
through the ownership of voting securities, as trustee or
executor, by contract or otherwise, including the ownership,
directly or indirectly, of securities having the power to
elect a majority of the board of directors or similar body
governing the affairs of such Person.
"Corporation Joint Venture Termination" has the meaning
set forth in the Sprint Articles of Incorporation.
"DT Purchase Price" means the product of 0.5 and the
Purchase Price.
"DT Venture Interests" means all of the Sprint Venture
Interests to be purchased by DT, pursuant to this Agreement,
all of which are set forth in Schedule I hereto.
"Effective Time of the WorldCom Merger" means the date
and time that the WorldCom Merger becomes effective.
"Encumbrance" means any security interest, pledge,
mortgage, lien (including environmental and tax liens),
charge, encumbrance, preferential arrangement or restriction
of any kind that relates to ownership rights, including any
restriction on the use, voting, transfer, receipt of income
or other exercise of any attributes of ownership.
"Exchange Act" means the United States Securities
Exchange Act of 1934, as amended.
"FT/DT Joint Venture Termination" has the meaning set
forth in the Sprint Articles of Incorporation.
"FT/DT Stock Payment Notes" has the meaning set forth
in the Stockholders' Agreement.
"FT Purchase Price" means the product of 0.5 and the
Purchase Price.
"FT Venture Interests" means all of the Sprint Venture
Interests to be purchased by FT, pursuant to this Agreement,
all of which are set forth in Schedule I hereto.
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"Governmental Authority" means any French, German,
United States or foreign federal, state, provincial, local,
supranational government, governmental, regulatory or
administrative authority, agency or commission or any court,
tribunal, or judicial or arbitral body, including the
European Union.
"Governmental Order" means any order, writ, judgment,
injunction, decree, stipulation, determination or award
entered by or with any Governmental Authority.
"Independent Director" has the meaning set forth in the
Sprint Articles of Incorporation.
"Joint Venture" means the Global One Joint Venture
including the JV Entities and any Subsidiaries of the JV
Entities.
"Law" means any French, German, European Union, United
States or foreign federal, national, state, regional, local
or other statute, law, ordinance, regulation, rule, code,
order, other requirement or rule of law.
"Liabilities" means any and all debts, liabilities and
obligations, whether accrued or fixed, absolute or
contingent, matured or unmatured or determined or
determinable, including those arising under any Law, Action
or Governmental Order and those arising under any contract,
agreement, arrangement, commitment or undertaking.
"Operative Agreements" means the JVA, the Employee
Matters Agreement, the Transfer Agreements, the Intellectual
Property Agreements, the Services Agreements, the
Shareholders Agreements, the Constituent Documents, the
Joint Venture Confidentiality Agreement, and the Tax Matters
Agreement (each as defined in the JVA).
"PCS Stock" has the meaning set forth in the Sprint
Articles of Incorporation.
"Permitted Encumbrances" means any Encumbrance set
forth in the JVA, the Transition Plan, the Stockholders'
Agreement, the Shareholders Agreement dated as of January
31, 1996 among Sprint Sub, Atlas and ROW Holdco B.V., the
Shareholders Agreement dated as of January 31, 1996 among
Sprint Sub, Atlas and ROW Salesco B.V., the Shareholders'
Agreement dated as of January 31, 1996 among Sprint Sub,
Atlas and ROW Clearinghouse Limited, the Shareholders
Agreement dated as of January 31, 1996 among Sprint Sub,
Atlas, Rest of Europe, L.L.C. and XXX Holdco B.V., the
Shareholders Agreement dated as of January 31, 1996 among
Sprint Sub, Atlas and ROE Salesco B.V., the Shareholders
Agreement dated as of
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January 31, 1996 among Sprint Sub, Atlas and XXX Clearinghouse
Limited, the Shareholders Agreement dated as of January 31,
1996 among Sprint Sub, Atlas and GBN Holdco Limited, the
Operating Agreement of Rest of Europe, L.L.C. dated as of
January 31, 1996 by and among Sprint Sub and Atlas, the Amended
and Restated Operating Agreement of ROW Services, L.L.C. dated
as of January 31, 1996 by and among Sprint Sub and ROW Interim
Holdco, the Articles of Association of GBN Holdco Limited,
the Articles of Association of XXX Clearinghouse Limited,
the Articles of Association of ROW Clearinghouse Limited,
the Deed of Incorporation of ROW Holdco B.V., the Deed of
Incorporation of ROW Salesco B.V., the Deed of Incorporation
of XXX Holdco B.V., the Deed of Incorporation of ROE Salesco
B.V., the Tax Matters Agreement dated as of January 31, 1996
by and among Sprint, Sprint Sub, FT, DT and Atlas, and any
other governing documents or instruments relating to the
Joint Venture.
"Person" shall mean any individual, partnership,
association, joint venture, corporation, business, trust,
joint stock company, limited liability company, any
unincorporated organization, any other entity, a "group" of
such persons, as that term is defined in Rule 13d-5(b) under
the Exchange Act, or a government or political subdivision
thereof.
"Purchase Price" means the sum of (1) U.S.
$1,127,000,000 plus (2) if the Closing has not occurred by
May 15, 2000, interest on U.S. $1,127,000,000 that will
accrue from and including May 15, 2000 until the Closing
Date at the Applicable Rate.
"Purchase Price Bank Account" means a bank account in
the United States to be designated by Sprint in a written
notice to FT and DT at least five Business Days before the
Closing.
"Purchase Provisions" means all provisions of this
Agreement other than the Surviving Provisions.
"Qualified Subsidiary" shall have the meaning set forth
in the Stockholders' Agreement.
"Recent Ordinary Course Obligations" means (a) Subject
Claims from ordinary course commercial transactions arising
on or after July 1, 1999; (b) Subject Claims arising between
the Signing Date and the Closing Date; (c) unpaid invoices
for Subject Claims arising from ordinary course commercial
transactions, which invoices were both: (i) issued within
six months of the date of the transactions or events giving
rise to the Subject Claims and were invoiced in accordance
with any applicable rules and procedures in effect at the
time of issuance of the invoices, and (ii) issued on or
after July 1, 1999; (d) any payments due pursuant to the
bilateral settlements process; and (e) any payments due from
one Party to another Party that arise from a billing from a
cable consortium or
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cable owner for a submarine cable agreement regardless of when
the cable consortium or cable owner bills a Party.
"SEC" means the United States Securities and Exchange
Commission.
"Securities Act" means the United States Securities Act
of 1933, as amended.
"Signing Date" means the date of this Agreement.
"Sprint Articles of Incorporation" means Sprint's
Amended and Restated Articles of Incorporation, as amended.
"Sprint Bylaws" means the bylaws of Sprint.
"Sprint JV Contracts" means the contracts between the
Joint Venture and Sprint and/or any of its controlled
Affiliates in existence prior to the Signing Date, other
than the JVA and the Operative Agreements.
"Sprint Venture Interests" means all equity or other
ownership interests held by Sprint or any of its Affiliates,
directly or indirectly, in the Joint Venture, all of which
are set forth in Schedule I hereto.
"Sprint's Pro Rata Portion" means the portion of the
relevant obligation for borrowed money that Sprint would
have been required to assume if such obligation were shared
by the shareholders of the Joint Venture pro rata in
accordance with their respective Venture Interests
immediately prior to entering into this Agreement.
"Subject Claims" means any and all obligations, debts,
actions, causes of action, manners of action, suits,
accounts, covenants, agreements, judgments, controversies,
damages and any and all claims, demands and Liabilities
whatsoever, both in law and at equity, known or unknown,
matured or unmatured, arising out of or relating to (a) the
formation, ownership or operation of the Joint Venture; (b)
the JVA, the other Operative Agreements and the Sprint JV
Contracts; or (c) the provision or receipt of goods or
services between the Parties in connection with a Party's
operations.
"Subsidiaries" of any Person means any corporation,
partnership, joint venture, limited liability company,
trust, estate or other Person of which (or in which),
directly or indirectly, more than 50% of (a) the issued and
outstanding capital stock having ordinary voting power to
elect a majority of the board of directors of such
corporation (irrespective of whether at the time capital
stock of any other class or classes of such corporation
shall or might have voting power upon the occurrence of any
contingency), (b) the interest in
8
the capital or profits of such partnership, joint venture or
limited liability company or other Person or (c) the beneficial
interest in such trust or estate is at the time owned by such
first Person, or by
such first Person and one or more of its other Subsidiaries
or by one or more of such Person's other Subsidiaries.
"Surviving Agreements" means those contracts defined as
Surviving Agreements in the Transition Plan.
"Surviving Provisions" means Articles I, IX and X and
Sections 5.01, 5.02, 5.03, 5.04, 5.05, 5.06, 5.07, 5.08,
5.09(a), 5.11, 5.12, 5.14, 5.15, 5.16 and 5.17 and the
Transition Plan.
"Tax" or "Taxes" means any federal, state, county,
local, foreign and other taxes (including income, profits,
premium, estimated, excise, sales, use, value added asset,
profit sharing, occupancy, gross receipts, franchise, ad
valorem, severance, capital levy, production, transfer,
withholding, employment, unemployment compensation, payroll
and property taxes, import duties and other governmental
charges and assessments), whether or not measured in whole
or in part by net income, and including deficiencies,
interest, additions to tax or interest, and penalties with
respect thereto, whether disputed or not, imposed by any
Governmental Authority or other Tax authority or arising
under any Tax law or agreement, including any joint venture
or partnership agreement.
"Tax Return" means any return, declaration, report,
claim for refund, form, or information return or statement
relating to Taxes, including any schedule or attachment
thereto, and including any amendments thereof.
"Transfer" has the meaning set forth in the
Stockholders' Agreement.
"Voting Securities" has the meaning set forth in the
Stockholders' Agreement.
SECTION 1.02. Other Definitions. The meanings of the
following terms can be found in the Sections of this Agreement
indicated below:
Term Section
Amended WorldCom Merger Agreement Recitals
Atlas Preamble
Xxxx of Sale 2.07(f)
Closing 2.06
Closing Date 2.06
Consent and Assumption Recitals
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Distribution Agreement Recitals
DT Preamble
DT/FT/JV Released Parties 5.09(d)
Effective Time of the FT/DT
Investment Changes 5.04(a)
ESPP Amendments 5.03(a)
Existing NAB Shares 5.03(a)
Existing FT Shares 5.03(a)
Expected Date 5.06(a)
FT Preamble
FT/DT Amendments 5.03(a)
FT/DT Transactions Recitals
FT/DT Transition Plan 5.01(g)
Indemnified Party 8.02(e)
Indemnifying Party 8.02(e)
Interim Debt Contributions 5.01(c)
Interim Sale Termination Date 9.02(d)
JV Entities Preamble
JVA Recitals
Loss 8.02(b)
NAB Preamble
NAB Standstill Agreement Recitals
Original Standstill Agreement Recitals
Original WorldCom Merger Agreement Recitals
Parties Preamble
Permitted Assignee 10.07
Preliminary Joint Proxy/Prospectus 4.08
Proxy 5.03(a)
Purchase Provisions Termination Date 9.02(d)
Purchaser Loss 8.02(a)
Registration Rights Agreement Recitals
Repayment Letter 5.10
Representatives 5.02
Seller Loss 8.02(b)
Settlement Agreement Recitals
Sprint Preamble
Sprint Debt Contribution 5.01(c)
Sprint Released Parties 5.09(c)
Sprint Stockholder Loans 5.10
Sprint Stockholders' Meeting 5.03(a)
Sprint Sub Preamble
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Standstill Agreements Recitals
Stockholders' Agreement Recitals
Subject Shares 5.03(a)
Third-Party Claims 8.02(e)
Third Party Purchase Price 9.02(d)
Transition Plan 5.01(f)
WorldCom Recitals
WorldCom Merger Recitals
ARTICLE II
PURCHASE AND SALE OF SPRINT VENTURE INTERESTS
SECTION 2.01. Sale of the FT Venture Interests. Upon
the terms and subject to the conditions set forth in this
Agreement, Sprint shall cause Sprint Sub to, and Sprint Sub
shall, sell to FT, and FT shall purchase, at the Closing, the FT
Venture Interests.
SECTION 2.02. FT Purchase Price. The purchase price
to be paid by FT to Sprint or its designee for the FT Venture
Interests shall be the FT Purchase Price, paid in cash. The FT
Purchase Price shall be paid at the Closing by wire transfer in
immediately available funds to the Purchase Price Bank Account.
SECTION 2.03. Sale of the DT Venture Interests. Upon
the terms and subject to the conditions set forth in this
Agreement, Sprint shall cause Sprint Sub to, and Sprint Sub
shall, sell to DT, and DT shall purchase, at the Closing, the DT
Venture Interests.
SECTION 2.04. DT Purchase Price. The purchase price
to be paid by DT to Sprint or its designee for the DT Venture
Interests shall be the DT Purchase Price, paid in cash. The DT
Purchase Price shall be paid at the Closing by wire transfer in
immediately available funds to the Purchase Price Bank Account.
SECTION 2.05. Adjustments for Distributions. At the
Closing Date, the Sprint Venture Interests shall be adjusted for
any stock split, stock or in-kind dividend, spin-off, split-off
or other distribution or similar dilutive event, subdivision,
combination or reclassification, issuance of options, warrants or
other rights.
SECTION 2.06. Closing. Sprint will deliver the stock
certificates or other evidence of ownership of the Sprint Venture
Interests against payment of the FT Purchase Price and the DT
Purchase Price. The delivery of and payment for the Sprint
Venture Interests shall take place at a closing (the "Closing")
to be held at the offices of Shearman & Sterling, 599
00
Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx at 10:00 a.m. on the fifth
Business Day following the satisfaction of the conditions specified
in Article VI or at such other time and place as shall be agreed
upon by the Parties in writing. The time and date upon which the
Closing occurs is referred to herein as the "Closing Date".
SECTION 2.07. Closing Deliveries by Sprint and Sprint
Sub. At the Closing, Sprint and Sprint Sub shall deliver or
cause to be delivered:
(a) to FT, stock certificates or other evidence of
ownership of the FT Venture Interests, if any, duly endorsed
in blank, or accompanied by stock powers duly endorsed in
blank, in form reasonably satisfactory to FT;
(b) to FT, a receipt for the FT Purchase Price;
(c) to DT, stock certificates or other evidence of
ownership of the DT Venture Interests, if any, duly endorsed
in blank, or accompanied by stock powers duly endorsed in
blank, in form reasonably satisfactory to DT;
(d) to DT, a receipt for the DT Purchase Price;
(e) to the Joint Venture, with a copy to each of FT
and DT, the Repayment Letter;
(f) to the Joint Venture, a Xxxx of Sale substantially
in the form attached as Annex E hereto (the "Xxxx of Sale")
for the dedicated assets to be purchased by the Joint
Venture pursuant to the Transition Plan; and
(g) to FT and DT, the certificates as described in
Section 6.03 hereof and such other certificates as FT and DT
may reasonably request as are necessary to consummate the
transactions contemplated by this Agreement.
SECTION 2.08. Closing Deliveries by FT. At the
Closing, FT shall deliver to Sprint and Sprint Sub the items
specified below:
(a) the FT Purchase Price to the Purchase Price Bank
Account;
(b) a receipt acknowledging delivery by Sprint and
Sprint Sub of the stock certificates or other evidence of
ownership of the FT Venture Interests specified in Section
2.07(a); and
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(c) the certificates as described in Section 6.02
hereof and such other certificates as Sprint and Sprint Sub
may reasonably request as are necessary to consummate the
transactions contemplated by this Agreement.
SECTION 2.09. Closing Deliveries by DT. At the
Closing, DT shall deliver to Sprint and Sprint Sub the items
specified below:
(a) the DT Purchase Price to the Purchase Price Bank
Account;
(b) a receipt acknowledging delivery by Sprint and
Sprint Sub of the stock certificates or other evidence of
ownership of the DT Venture Interests specified in Section
2.07(c); and
(c) the certificates as described in Section 6.02
hereof and such other certificates as Sprint and Sprint Sub
may reasonably request as are necessary to consummate the
transactions contemplated by this Agreement.
SECTION 2.10. Closing Deliveries by the Joint Venture.
At the Closing, the Joint Venture shall deliver to Sprint and
Sprint Sub the items specified below:
(a) the amount outstanding under the Sprint
Stockholder Loans by wire transfer of immediately available
funds to the Purchase Price Bank Account; and
(b) payment for the dedicated assets to be purchased
by the Joint Venture from Sprint pursuant to the Transition
Plan.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF ATLAS, FT, NAB AND DT
As an inducement to the Parties to enter into this
Agreement, each of Atlas, FT, NAB and DT (but with respect to
Section 3.07, FT and DT only), in each case, severally and not
jointly (except that the representations and warranties made by
DT and NAB are made jointly by DT and NAB), represents and
warrants to Sprint and Sprint Sub as follows:
SECTION 3.01. Due Incorporation or Formation;
Authorization of Agreement. Such Party is an entity duly
organized and validly existing under the laws of the jurisdiction
of its organization or formation, and has the power and authority
to own its property and carry on its business as owned and
carried on as of the date hereof. Such Party has the power and
authority to execute and deliver this Agreement and the other
agreements to be executed and delivered in
13
connection herewith to which it is a party, to carry out its
obligations hereunder and thereunder and to consummate the
transactions contemplated hereby and thereby, and the execution,
delivery and performance of this Agreement and the other agreements
to be executed and delivered in connection herewith to which it is
a party, and the consummation of the transactions contemplated
hereby and thereby, have been duly authorized by all necessary
corporate action. Assuming the due execution and delivery by the
other Parties hereto, each of this Agreement and the other
agreements to be executed and delivered in connection herewith to
which it is a party constitutes the legal, valid and binding
obligation of such Party enforceable against such Party in
accordance with its terms.
SECTION 3.02. No Conflict. Assuming the making and
obtaining of all filings, notifications, consents, approvals,
authorizations, and other actions referred to in Section 3.03,
and after giving effect to the provisions of this Agreement,
neither the execution, delivery and performance by such Party of
this Agreement and the other agreements to be executed and
delivered in connection herewith to which it is a party, nor the
consummation by such Party of the transactions contemplated
hereby and thereby will (i) conflict with, violate or result in a
breach of any of the terms or conditions of any Law or
Governmental Order applicable to such Party, (ii) conflict with,
violate, result in a breach of or require any consent under any
of the terms, conditions or provisions of the governing
instruments of such Party or of any material agreement or
instrument to which such Party is a party or by which such Party
is or may be bound or to which any of its material properties or
assets is subject, or (iii) result in the creation or imposition
of any Encumbrance upon any of the material properties or assets
of such Party except for Encumbrances that would not result in a
material adverse effect on the assets, liabilities, results of
operations, financial condition or business of such Party or
prevent or materially impair the performance by such Party of its
obligations under this Agreement and the other agreements to be
executed and delivered in connection herewith to which it is a
party.
SECTION 3.03. Governmental Consents and Approvals.
(a) The execution, delivery and performance of this Agreement
and the other agreements to be executed and delivered in
connection herewith to which it is a party, and the consummation
of the transactions contemplated hereby and thereby by such Party
do not and will not require any consent, approval, authorization
or other order of, any Governmental Authority, except (i) to the
extent required, that the Commission of the European Union,
pursuant to Article 81 of the Treaty of Rome, as amended, and
Council Regulation (EEC) no. 4064/89, as amended, shall have
approved this Agreement and the other agreements to be executed
and delivered in connection herewith and the transactions
contemplated hereby and thereby; and (ii) for such other
consents, waivers, approvals, authorizations and orders which if
not obtained or made would not be, individually or in the
aggregate, reasonably likely to materially impair the ability of
the Parties to effect the transactions contemplated by this
Agreement and the other agreements to be executed and delivered
in connection herewith.
14
(b) The execution, delivery and performance of the
Proxy and the consummation of the transactions contemplated
thereby by each such Party that is a party thereto do not and
will not require any consent, approval, authorization or other
order of any Governmental Authority in France or Germany, or of
the Commission of the European Union.
SECTION 3.04. Litigation. There are no Actions
pending or, to the knowledge of such Party, threatened against or
affecting such Party or any of its properties, assets or
businesses which would, if adversely determined (or, in the case
of an investigation could lead to any action, suit or proceeding,
which if adversely determined would), reasonably be expected to
materially impair such Party's ability to perform its obligations
under this Agreement or the other agreements to be executed and
delivered in connection herewith to which it is a party; and such
Party has not received any currently effective notice of any
default, and such Party is not in default, under any Governmental
Order, which default would reasonably be expected to materially
impair such Party's ability to perform its obligations under this
Agreement or the other agreements to be executed and delivered in
connection herewith to which it is a party.
SECTION 3.05. Brokers. No broker, finder or
investment banker is entitled to any brokerage, finder's or other
fee or commission in connection with the transactions
contemplated by this Agreement based upon arrangements made by or
on behalf of such Party.
SECTION 3.06. No Sovereign Immunity. Neither FT nor
DT nor any controlled Affiliate of either of them that is a party
to this Agreement or any agreement executed pursuant to this
Agreement (including any Qualified Subsidiary of both FT (and/or
its controlled Affiliates) and DT (and/or its controlled
Affiliates)) is entitled to any immunity on the grounds of
sovereignty or otherwise (including pursuant to the Foreign
Sovereign Immunities Act, 28 U.S.C. Section 1602 et seq.), based
upon its status as an agency or instrumentality of government,
from any legal action, suit or proceeding or from setoff or
counterclaim, from the jurisdiction of any competent court
described in Section 10.10 or Section 10.13 of this Agreement or
Section 13 of the Transition Plan, from service of process, from
attachment prior to judgment, from attachment in aid of execution
of a judgment, from execution pursuant to a judgment or arbitral
award, or from any other legal process in any jurisdiction, in
each case relating to this Agreement or any agreement or document
executed pursuant to this Agreement.
SECTION 3.07. Investment Intent. Each of FT and DT is
purchasing the Sprint Venture Interests pursuant to this
Agreement for its own account for investment purposes only, and
not with a view to the public distribution of such Sprint Venture
Interests or any part thereof, and neither FT nor DT is a party
to any contract, agreement, arrangement or understanding with any
Person for resale of such Sprint Venture Interests in connection
with such a public distribution and each of FT and DT
acknowledges that the sale of the Sprint Venture Interests
pursuant to this Agreement will not be registered under the
Securities Act or under any state securities or blue sky law or
the securities laws of any other country, and each of FT and DT
15
understands that the Sprint Venture Interests purchased pursuant
to this Agreement may not be sold or transferred by them except
in compliance with or pursuant to an exemption from, the
provisions of the Securities Act and/or applicable state
securities or blue sky laws or any applicable securities law of
any country.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF SPRINT AND SPRINT SUB
As an inducement to Atlas, FT, NAB and DT to enter into
this Agreement, Sprint and Sprint Sub each hereby jointly and
severally represent and warrant to Atlas, FT, NAB and DT as
follows and as set forth in the second paragraph of Section 3(f)
of the Transition Plan:
SECTION 4.01. Due Incorporation or Formation;
Authorization of Agreement. Such Party is an entity duly
organized and validly existing under the laws of Kansas, and has
the power and authority to own its property and carry on its
business as owned and carried on as of the date hereof. Such
Party has the power and authority to execute and deliver this
Agreement and the other agreements to be executed and delivered
in connection herewith to which it is a party, to carry out its
obligations hereunder and thereunder and to consummate the
transactions contemplated hereby and thereby, and the execution,
delivery and performance of this Agreement and the other
agreements to be executed and delivered in connection herewith to
which it is a party, and the consummation of the transactions
contemplated hereby and thereby, have been duly authorized by all
necessary corporate action except as contemplated by Section
5.15. Assuming the due execution and delivery by the other
Parties hereto, each of this Agreement and the other agreements
to be executed and delivered in connection herewith to which it
is a party constitutes the legal, valid and binding obligation of
such Party enforceable against such Party in accordance with its
terms, provided that this representation and warranty shall not
apply to the Amended WorldCom Merger Agreement if the Amended
WorldCom Merger Agreement is terminated.
SECTION 4.02. No Conflict. Except for amendments to
the Sprint Articles of Incorporation, and to the Original
WorldCom Merger Agreement that are required and contemplated by
this Agreement, assuming the making and obtaining of all filings,
notifications, consents, approvals, authorizations and other
actions referred to in Section 4.03, and after giving effect to
the provisions of this Agreement, neither the execution, delivery
and performance of this Agreement and the other agreements to be
executed and delivered in connection herewith to which it is a
party by such Party, nor the consummation by such Party of the
transactions contemplated hereby and thereby will (i) conflict
with, violate or result in a breach of any of the terms or
conditions of any Law or Governmental Order applicable to such
Party, (ii) conflict
16
with, violate, result in a breach of or require any consent under
any of the terms, conditions or provisions of the governing instruments
of such Party or of any material agreement or instrument to which
such Party is a party or by which such Party is or may be bound or
to which any of its material properties or assets is subject, or
(iii) result in the creation or imposition of any Encumbrance upon
any of the material properties or assets of such Party except for
Encumbrances that would not result in material adverse effect on
the assets, liabilities, results of operations, financial
condition or business of such Party or prevent or materially
impair the performance by such Party of its obligations under
this Agreement and the other agreements to be executed and
delivered in connection herewith to which it is a party.
SECTION 4.03. Governmental Consents and Approvals.
The execution, delivery and performance of this Agreement and the
other agreements to be executed and delivered in connection
herewith to which it is a party, and the consummation of the
transactions contemplated hereby and thereby, by such Party do
not and will not require any consent, approval, authorization or
other order of any Governmental Authority, except (other than in
the case of the Proxy) (i) to the extent required, that the
Commission of the European Union, pursuant to Article 81 of the
Treaty of Rome, as amended, and Council Regulation (EEC) no.
4064/89, as amended, shall have approved this Agreement and the
other agreements to be executed and delivered in connection
herewith (other than the Proxy) and the transactions contemplated
hereby and thereby; (ii) for such other consents, waivers,
approvals, authorizations and orders which if not obtained or
made would not be, individually or in the aggregate, reasonably
likely to materially impair the ability of the Parties to effect
the transactions contemplated by this Agreement and the other
agreements to be executed and delivered in connection herewith;
and (iii) in the case of the Amended WorldCom Merger Agreement
and the WorldCom Merger, such consents, waivers, approvals,
authorizations and orders described in the Amended WorldCom
Merger Agreement.
SECTION 4.04. Ownership of Sprint Venture Interests.
Except for Permitted Encumbrances, none of which impair the
ability of Sprint or Sprint Sub to transfer the Sprint Venture
Interests pursuant to this Agreement, Sprint or Sprint Sub,
directly or indirectly, owns all of the Sprint Venture Interests
free and clear of all Encumbrances. Other than the Sprint
Venture Interests and the Sprint Stockholder Loans, Sprint has no
equity or other ownership interest, direct or indirect, in the
Joint Venture. Upon consummation of the transactions
contemplated by this Agreement, FT and DT (or a Permitted
Assignee) will own, free and clear of any Encumbrance, other than
Permitted Encumbrances and Encumbrances in respect of taxes (if
any) that are the liability of DT and FT pursuant to Section
7.01(b) hereof, the FT Venture Interests and the DT Venture
Interests, respectively, and in aggregate, the Sprint Venture
Interests.
SECTION 4.05. Litigation. There are no Actions
pending or, to the knowledge of such Party, threatened against or
affecting such Party or any of its properties, assets or
17
businesses which would, if adversely determined (or, in the case
of an investigation could lead to any action, suit or proceeding,
which if adversely determined would), reasonably be expected to
materially impair such Party's ability to perform its obligations
under this Agreement; and such Party has not received any
currently effective notice of any default, and such Party is not
in default, under any Governmental Order, which default would
reasonably be expected to materially impair such Party's ability
to perform its obligations under this Agreement.
SECTION 4.06. Brokers. No broker, finder or
investment banker is entitled to any brokerage, finder's or other
fee or commission in connection with the transactions
contemplated by this Agreement based upon arrangements made by or
on behalf of such Party.
SECTION 4.07. Kansas Business Combination Statute.
Other than those actions that have been taken prior to the date
hereof, no action by Sprint or Sprint Sub (including any approval
or determination of the Sprint board of directors or any
committee thereof) is required to be taken with respect to
Section 17-12,100 et seq. of the Kansas General Corporation Code
in order for this Agreement and the other agreements to be
executed and delivered in connection herewith and the
transactions contemplated hereby and thereby to be validly
executed and consummated, and enforceable against Sprint and
Sprint Sub.
SECTION 4.08. Description of Amended WorldCom Merger
Agreement. The information included or incorporated by reference
in the joint proxy/prospectus, filed with the SEC on Form S-4 by
Sprint and WorldCom on November 5, 1999 (Registration No.
333-90421), as amended by Amendment No. 1, filed with the SEC on
December 16, 1999, and Amendment No. 2, in the form previously
delivered to FT, DT and NAB (as so amended, the "Preliminary
Joint Proxy/Prospectus"), as of the date hereof, do not contain
any untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements therein,
in light of the circumstances under which they were made, not
misleading, except for information and statements to the extent
necessary to reflect the transactions contemplated by this
Agreement and the Amended WorldCom Merger Agreement.
ARTICLE V
COVENANTS
SECTION 5.01. Management of the Joint Venture. (a)
From the Signing Date until the Closing Date or the Interim Sale
Termination Date, to the fullest extent permitted by applicable
Law, subject to obtaining any required derogation from the
Commission of the European Union and subject to Section 5.01(d)
hereof, Atlas, FT and DT, or any one of FT or DT, will manage the
operations of the Joint Venture without the participation of
Sprint or any of
18
its Affiliates. Sprint will take all action necessary or
appropriate, directly or indirectly, through any JV Entity,
including amending the organizational documents of any JV Entity,
or otherwise, to give effect to the foregoing.
(b) To the fullest extent permitted by applicable Law,
subject to obtaining any required derogation from the Commission
of the European Union: (i) Sprint will cause all Sprint
representatives to resign, effective as of the Signing Date, from
all of the Governing Boards, including the Global Venture Board
and the Global Venture Committee and (ii) Sprint and its
Affiliates shall have no further obligations under the Operative
Agreements with respect to the Governing Boards, including the
obligations set forth in Section 3.9 of the JVA. If requested by
DT and FT, Sprint will designate those individuals requested by
DT and FT to become members of the Governing Boards and take such
other action as is required to cause such individuals to become
members of the Governing Boards.
(c) On and after January 1, 2000, except as otherwise
provided in this Section 5.01(c), Sprint shall have no obligation
to make any equity capital or debt contribution to the Joint
Venture. In addition, the Parties agree that on and after
January 1, 2000 until the earlier of the Closing Date or the
Interim Sale Termination Date, neither FT nor DT shall make or
permit to be made any direct or indirect equity capital
contributions, but may make or permit to be made debt
contributions to, or permit third party borrowings by, the Joint
Venture. If the Purchase Provisions are terminated in accordance
with Section 9.01 hereof, and notwithstanding the first sentence
of this Section 5.01(c): (i) promptly after the Interim Sale
Termination Date, Sprint shall make a debt contribution (the
"Sprint Debt Contribution") to the Joint Venture in the amount of
Sprint's Pro Rata Portion of the aggregate principal amount of
all debt contributions made by FT and DT (or any Permitted
Assignee) to the Joint Venture from January 1, 2000 through the
Interim Sale Termination Date (the "Interim Debt Contributions")
and (ii) the Joint Venture shall simultaneously distribute the
amount of such funds to DT and FT (or any Permitted Assignee)
which will, subject to the following proviso, result in an
allocation of the Interim Debt Contributions plus the Sprint Debt
Contribution that is pro rata among Sprint, FT and DT in
accordance with their respective Venture Interests immediately
prior to entering into this Agreement; provided, however, in no
event will Sprint be obligated to contribute to the Joint Venture
pursuant to this Section 5.01(c), in the aggregate, more than (x)
$30,000,000 multiplied by (y) the number of months (or any part
thereof) during the period between January 1, 2000 and the
Interim Sale Termination Date. After the Interim Sale
Termination Date, and notwithstanding the first sentence of this
Section 5.01(c), Sprint shall contribute Sprint's Pro Rata
Portion of all future capital requirements of the Joint Venture.
(d) In connection with managing the business and
affairs of the Joint Venture as of and from the Signing Date
until the Closing Date or the Interim Sale Termination Date, none
of Atlas, FT, DT, the Joint Venture or any of their respective
controlled Affiliates will take any of the actions set forth on
Schedule IV hereto without the prior written consent of Sprint,
19
which consent, in the case of the items listed in paragraphs 4,
5, 7, 12, 15 and 17 of Schedule IV, shall not be unreasonably
withheld.
(e) The Joint Venture will continue to provide Sprint
with access to the books and records of, or other information
concerning, the Joint Venture which Sprint may reasonably request
in order to determine and comply with regulatory, accounting, tax
and other legal requirements, including any requirements relating
to the transactions contemplated by this Agreement or, subject to
the second paragraph of Section 3(f) of the Transition Plan, the
WorldCom Merger. Sprint will continue to provide the Joint
Venture with access to its books and records, or other
information which the Joint Venture may reasonably request in
order to determine and comply with regulatory, accounting, tax
and other legal requirements, including any requirements relating
to the transactions contemplated by this Agreement.
(f) The Parties agree that the Transition Plan
attached as Annex A hereto (the "Transition Plan") shall be
effective as of the Signing Date and is hereby incorporated by
reference into this Agreement in its entirety and shall have the
same force and effect as if included in the body of this
Agreement and shall apply to the transactions contemplated
hereby.
(g) (i) Sprint and Sprint Sub hereby consent to the
execution and delivery by FT and DT of any agreements providing
for the FT/DT Transactions involving the purchase by one of them
of the interests of the other in the Joint Venture and providing
for a transition plan (the "FT/DT Transition Plan") applicable to
the "withdrawing party" identified in the FT/DT Transactions that
is substantially similar to, and compatible with, the Transition
Plan; provided that such consent shall not be deemed to have been
given if FT and DT have not complied with Section 5.01(g)(ii)
hereof.
(ii) FT and DT agree that (A) the provisions of
the FT/DT Transactions will not conflict with their respective
obligations under this Agreement or the obligations of the Joint
Venture under this Agreement, and (B) the provisions of the FT/DT
Transition Plan will not treat the "withdrawing party" thereunder
in a manner that is more favorable to such withdrawing party in
any material respect than Sprint is treated under the Transition
Plan (other than (x) as appropriate to reflect the fact that the
date on which the DT/FT Transition Plan is entered into is
different than the date of the Transition Plan and that the
closing date of the FT/DT Transactions may be different from the
Closing Date under this Agreement or (y) any more favorable
treatment under the FT/DT Transition Plan that results from
actions necessary to obtain required regulatory approvals or
governmental clearances) unless the benefit of such more
favorable treatment is extended to Sprint pursuant to the
Transition Plan.
SECTION 5.02. Access to Information. Each of the
Joint Venture, Sprint, Sprint Sub, FT and DT shall use its
reasonable best efforts, and shall cause its officers, directors,
employees, accountants, consultants, legal counsel, agents and
other representatives, including
20
those employees who have been seconded or assigned to the Joint
Venture (collectively, "Representatives"), to use their respective
reasonable best efforts, (i) to provide the Representatives of FT
and DT reasonable access at reasonable times upon prior notice to the
offices, properties, other facilities, books and records of the
Joint Venture (including the offices, properties, other
facilities, books and records used by the Joint Venture) and to
those Representatives who have knowledge relating to the business
of the Joint Venture; and (ii) furnish promptly such information
in their possession concerning the business, operations,
financial condition, properties, contracts, assets, tax status,
including true and complete copies of all Tax Returns,
liabilities, personnel and goodwill of the Joint Venture as FT
and DT or their Representatives may reasonably request.
SECTION 5.03. Agreement to Vote in Favor of the
WorldCom Merger and Other Matters. (a) As to all shares of
Class A Stock or other voting equity securities of Sprint
beneficially owned by FT or any of its controlled Affiliates
and/or by DT or any of its controlled Affiliates (including, in
each case, any controlled Affiliates that are Qualified
Subsidiaries owned by both FT and/or its controlled Affiliates
and DT and/or its controlled Affiliates), whether such shares are
owned on the date hereof or hereinafter acquired (collectively,
the "Subject Shares"), each of FT and DT hereby severally and not
jointly agrees to (and agrees to cause such controlled Affiliates
to) cause the Subject Shares to be represented at the meeting or
meetings of Sprint stockholders held for the purpose of
considering the Amended WorldCom Merger Agreement and the
WorldCom Merger or any other matters described in this Section
5.03(a) (each such meeting is hereinafter referred to as a
"Sprint Stockholders' Meeting"), in person or by proxy, and to be
voted at each Sprint Stockholders' Meeting (including pursuant to
any class vote required in connection therewith): (i) for
approval and adoption of the Amended WorldCom Merger Agreement
(as it may be amended by any amendment thereto that does not have
any of the effects enumerated in clauses (A) through (D) of
Section 5.03(d)(ii)) and the WorldCom Merger, unless the Sprint
board of directors has terminated the Amended WorldCom Merger
Agreement, (ii) for approval and adoption of the Amended and
Restated Sprint Articles of Incorporation and the Amended and
Restated Sprint Bylaws substantially in the forms previously
delivered to DT, FT and NAB (collectively, the "FT/DT
Amendments"), (iii) for approval of any other matter that has
been recommended by the Sprint board of directors (other than the
disposition of assets or businesses) and that is necessary to
implement the matters set forth in the immediately preceding
clauses (i) and (ii), (iv) for approval and adoption of the
amendments to Sprint's Employees Stock Purchase Plan described in
the Preliminary Joint Proxy/Prospectus (the "ESPP Amendments"),
and (v) against approval or adoption of any proposal made in
opposition to or competition with the WorldCom Merger and the
transactions contemplated by the Amended WorldCom Merger
Agreement that has not been approved or recommended by the Sprint
board of directors. Such agreement to vote shall also apply to
any adjournment or adjournments of a Sprint Stockholders'
Meeting. Without limitation of the foregoing, each of FT and DT
agrees not to (and to cause its controlled Affiliates (including
any Qualified Subsidiary that is owned by both FT and/or its
controlled Affiliates and DT and/or its controlled Affiliates)
21
not to) exercise any disapproval rights which it may have under
the Sprint Articles of Incorporation with respect to any of the
matters described in clause (i), (ii) or (iii) in the first
sentence of this Section 5.03(a). Concurrently with the
execution and delivery of this Agreement, each of FT, DT, NAB,
Sprint and certain of its officers is executing and delivering a
proxy in the form of Annex D (the "Proxy"). The Subject Shares
include 43,118,018 shares of Sprint Old Class A Common Stock,
6,441,007 shares of Sprint Series 3 PCS Stock, and 44,136,857
shares of Sprint Series 3 FON Stock, in each case, owned of
record by FT, together with any shares of PCS Stock issued in
respect of such shares as a result of the two-for-one PCS stock
split approved by the Sprint board of directors on December 14,
1999 (the "Existing FT Shares"), and 43,118,018 shares of Sprint
Class A Common Stock - Series DT, 7,127,161 shares of Sprint
Series 3 PCS Stock, and 44,464,179 shares of Sprint Series 3 FON
stock, in each case, owned of record by NAB, together with any
shares of PCS Stock issued in respect of such shares as a result
of the two-for-one PCS stock split approved by the Sprint board
of directors on December 14, 1999 (the "Existing NAB Shares").
Capitalized terms used in the preceding sentence that are not
defined in this Agreement have the meanings assigned to them in
the Sprint Articles of Incorporation. Notwithstanding the
foregoing, unless earlier terminated in accordance with the
provisions hereof, the obligations of FT and DT (and their
Affiliates) with respect to any Subject Shares (including the
Existing FT Shares and the Existing NAB Shares) contained in
clauses (i), (iii) (to the extent relating to (i)) and (v) of
this Section 5.03(a) and in the corresponding provisions of the
Proxy shall terminate on the earlier of (I) the termination of
the Amended WorldCom Merger Agreement and (II) the later of (X)
December 31, 2000 and (Y) the earlier of (A) December 31, 2001
and (B) the time that the Sprint stockholders have voted on the
Amended WorldCom Merger Agreement at a Sprint Stockholders
Meeting (whether or not the WorldCom Merger is in fact approved
at that time). The obligations of FT and DT (and their
Affiliates) with respect to any Subject Shares (including the
Existing FT Shares and the Existing NAB Shares) contained in
clause (iv) of this Section 5.03(a) and in the corresponding
provisions of the Proxy shall terminate immediately after the
Sprint stockholders have voted upon the ESPP Amendments (whether
or not the ESPP Amendments are in fact approved at that time).
(b) Subject to the last sentence of Section 5.03(a),
Section 5.03(d) and Section 5.03(e), FT agrees as to any Subject
Shares (including the Existing FT Shares) beneficially owned by
it and/or its controlled Affiliates (including any Qualified
Subsidiary that is owned by both FT and/or its controlled
Affiliates and DT and/or its controlled Affiliates), and DT and
NAB jointly and severally agree as to any Subject Shares
(including the Existing NAB Shares) beneficially owned by them
and/or their controlled Affiliates (including any Qualified
Subsidiary that is owned by both FT and/or its controlled
Affiliates and DT and/or its controlled Affiliates), not to take
any action that would impair the ability of such Subject Shares
to be voted in the manner described in Section 5.03(a). Nothing
contained in this Section 5.03(b) shall be deemed to impair the
ability of FT, DT, NAB or any of their controlled Affiliates to
make any Transfer of Subject Shares (i) after the Effective Time
of the FT/DT Investment Changes that is permitted under the terms
of this Agreement and the Stockholders' Agreement (when and as
amended by
22
this Agreement), or (ii) pursuant to Section 2.2 and in accordance
with Section 7.5(a) and Section 7.5(b) of the Stockholders' Agreement.
(c) Having regard for the fact that Sprint has
informed FT and DT that the implementation of this Agreement is
an integral part of the arrangements necessary to achieve the
WorldCom Merger, and that FT and DT have determined that they
have no intention to oppose the WorldCom Merger before any
regulatory or governmental authority, and having regard for the
agreement to vote in favor of the WorldCom Merger as set forth in
Section 5.03(a), each of Atlas, FT and DT, severally and not
jointly, hereby agrees not to oppose, and agrees to cause each of
its controlled Affiliates (including any Qualified Subsidiaries
of both FT and/or its controlled Affiliates and DT and/or its
controlled Affiliates) not to oppose, the WorldCom Merger by or
before any regulatory or governmental authority; provided,
however, that nothing in this Section 5.03(c) shall prevent (i)
Atlas, FT or DT or any of their Affiliates from responding fully,
accurately and in good faith to any inquiries from any regulatory
or governmental authority in connection with the WorldCom Merger
or (ii) FT from taking actions in Brazil that (A) it reasonably
believes in good faith are necessary to protect its investments
in Brazil and (B) are not undertaken for the purpose of impeding
the ability of WorldCom to operate its business in Brazil.
(d) The obligations of FT, DT and their Affiliates
contained in clauses (i), (iii) (to the extent relating to clause
(i)) and (v) of Section 5.03(a) are subject to the conditions
that (i) the Amended WorldCom Merger Agreement shall have been
duly authorized by the boards of directors of WorldCom and Sprint
and shall have been duly executed and delivered by the parties
thereto, (ii) the Original WorldCom Merger Agreement shall be in
full force and effect as executed on October 4, 1999, as amended
by the Amended WorldCom Merger Agreement (when so executed and
delivered), and without any further amendment or modification
thereto that (A) reduces the amount or changes the nature of the
consideration to be received by FT, DT or their Affiliates in the
WorldCom Merger; (B) conflicts with the rights of FT, DT or their
Affiliates under this Agreement; (C) otherwise materially and
adversely affects FT, DT or their Affiliates; or (D) treats FT or
DT or their Affiliates in a manner different from other Sprint
stockholders which is adverse to FT, DT or their Affiliates, and
(iii) the Consent and Assumption shall be in full force and
effect in all material respects. The Proxy shall be consistent
with the provisions of this Section 5.03(d).
(e) In the event of the transfer of any Subject Shares
(including the Existing FT Shares and the Existing NAB Shares)
after the Effective Time of the FT/DT Investment Changes to a
Person that is not FT, DT or a controlled Affiliate of FT or DT,
the obligations of FT and DT (and their Affiliates) with respect
to such transferred Subject Shares contained in clauses (i)
through (v) of Section 5.03(a) and in the corresponding
provisions of the Proxy shall terminate at the time of such
transfer. The provisions of Section 5.03(a) shall continue to be
applicable to all other Subject Shares that have not been so
transferred.
23
(f) Having determined that it has no intention to
oppose the FT/DT Transactions before any regulatory or
governmental authority, Sprint hereby agrees not to oppose, and
agrees to cause each of its controlled Affiliates not to oppose,
the FT/DT Transactions by or before any regulatory or
governmental authority whose approval is required as a condition
to close the FT/DT Transactions; provided, however, that nothing
in this Section 5.03(f) shall prevent Sprint or any of its
Affiliates from responding fully, accurately and in good faith to
any inquires from any regulatory or governmental authority in
connection with the FT/DT Transactions.
SECTION 5.04. Initial FT/DT Investment Changes. (a)
(i) Upon the earliest of (A) December 31, 2000, (B) termination
of the Amended WorldCom Merger Agreement and (C) the date that a
meeting of Sprint stockholders is first convened for the purpose
of voting on the WorldCom Merger, whether or not the WorldCom
Merger is in fact approved at such meeting (such earliest date in
clauses (A), (B) and (C) is hereinafter referred to as the
"Effective Time of the FT/DT Investment Changes"), FT hereby
agrees to cause its and its controlled Affiliates' (including any
Qualified Subsidiaries that are owned by both FT and/or its
controlled Affiliates and DT and/or its controlled Affiliates)
designees on the Sprint board of directors to resign and DT
hereby agrees to cause its and its controlled Affiliates'
(including any Qualified Subsidiaries that are owned by both FT
and/or its controlled Affiliates and DT and/or its controlled
Affiliates) designees on the Sprint board of directors to resign,
such resignations to be effective no later than the Effective
Time of the FT/DT Investment Changes.
(ii) If the resignations referred to in Section
5.04(a)(i) are effective at any time before Sprint stockholders
have approved the FT/DT Amendments, (x) if the Amended WorldCom
Merger Agreement has been terminated prior to the time that a
meeting of Sprint stockholders is first convened for the purpose
of voting on the WorldCom Merger, then FT, DT and their
Affiliates shall reacquire all the rights that they have at the
Signing Date to elect directors pursuant to Sections 2(a) and
4(b) of Article FIFTH of the Sprint Articles of Incorporation as
in effect on the date hereof (and any provisions of the Sprint
Bylaws as in effect on the date hereof relating to the election
of directors by Class A Holders) if the Sprint stockholders do
not approve the FT/DT Amendments at the next meeting of Sprint
stockholders, which rights shall be reacquired immediately
following such next meeting if the FT/DT Amendments are not
approved and shall remain in place until such time as the FT/DT
Amendments are approved by Sprint stockholders; provided,
however, that any such directors shall be individuals who, if
elected, would be Independent Directors; (y) if the Amended
WorldCom Merger Agreement has not been terminated prior to the
time that a meeting of Sprint stockholders is first convened for
the purpose of voting on the WorldCom Merger, then FT, DT and
their Affiliates shall, immediately upon the effectiveness of the
resignations referred to in Section 5.04(a)(i), reacquire all the
rights that they have at the Signing Date to elect directors
pursuant to Sections 2(a) and 4(b) of Article FIFTH of the Sprint
Articles of Incorporation as in
24
effect on the date hereof (and any provisions of the Sprint Bylaws
as in effect on the date hereof relating to the election of directors
by Class A Holders), which rights shall remain in place until such
time as the FT/DT Amendments are approved by Sprint stockholders;
provided, however, that any such directors appointed by the Class A
Holders shall be individuals who, if elected, would be Independent
Directors; and (z) Sprint shall take all necessary corporate
action to submit the FT/DT Amendments for approval at the next
meeting of Sprint stockholders to be convened for the election of
directors and shall use its reasonable best efforts to solicit
from stockholders approval of the FT/DT Amendments.
(b) As promptly as practicable after the Signing Date,
Sprint shall cause the FT/DT Amendments to be submitted to the
Sprint board of directors (to the extent deemed necessary or
appropriate) and the Sprint stockholders for adoption and
approval, and upon adoption and approval by the stockholders of
Sprint, Sprint shall cause such amendments to the Sprint Articles
of Incorporation to be promptly filed with the Kansas Secretary
of State. Effective as of the Effective Time of the FT/DT
Investment Changes, except as otherwise provided in Section
5.04(a)(ii), each of FT and DT (and NAB) (on its own behalf and
on behalf of each of its controlled Affiliates (including any
Qualified Subsidiaries owned by both FT and/or its controlled
Affiliates and DT and/or its controlled Affiliates)) hereby
irrevocably and unconditionally waives, remises, releases and
forever discharges (and agrees not to exercise) any rights
proposed to be deleted or eliminated by virtue of the FT/DT
Amendments (whether before or after the submission of such
amendments to the stockholders of Sprint and whether or not such
amendments are approved or adopted by the stockholders of
Sprint).
(c) Effective as of the Effective Time of the FT/DT
Investment Changes, and without any further action by any Party,
the Registration Rights Agreement shall be amended as follows:
(i) in Section 1.1(a) thereof, the words "for cash"
immediately following the words "for disposition" shall be
deleted;
(ii) in Section 1.1(a)(i) thereof, the following
language shall be deleted: "the Company shall not be
required to effect any registration pursuant to this Section
1.1 if during the twelve-month period immediately preceding
such request" and shall be replaced with the following
language: "the Company shall not be required to effect any
registration pursuant to this Section 1.1 if during the
six-month period immediately preceding such request";
(iii) in Section 1.1(b) thereof, the following
language shall be deleted: "The Selling Stockholders, in
accordance with Section 2.5 of the Amended and Restated
Stockholders' Agreement, at any time and from time to time,
may change the Planned
25
Date of any registration statement to any date not more than
120 days after the original Planned Date with respect to such
registration statement";
(iv) in Section 1.1(d) thereof, the words "for cash" in
the first sentence shall be deleted;
(v) in Section 1.1(e) thereof, the words "and shall
pay such other expenses if and to the extent required by
Section 2.5 of the Amended and Restated Stockholders'
Agreement" shall be deleted;
(vi) in Section 1.2(a) thereof, the words "for cash" in
the second sentence shall be deleted;
(vii) in Section 1.3 thereof, following subsection
(k), after the paragraph beginning "The Company may require
each . . .", the following separate paragraph shall be
inserted: "In the case of the Eligible Securities referred
to in clause (d) of the definition of such term in Section
2, any obligation of the Company to effect any registration
shall apply only to the Eligible Securities underlying the
Derivative Securities to be issued by FT and DT (or any of
their Affiliates, or any finance company formed by an
underwriter to effect such a distribution) and FT or DT, as
applicable, shall be responsible for all expenses and other
aspects of the separate registration of the securities to be
issued by such party or any Affiliate of such party.";
(viii) in Section 1.5(c)(ii) thereof, after the
words ". . . 90 days after any underwritten registration
pursuant to Section 1.1 or 1.2 has become effective", the
following parenthetical shall be inserted: "(including with
respect to any offering of Derivative Securities, but only
if the lead book running managing underwriter for such
offering advises the Company in writing that a public sale
or distribution during such 10-day and 90-day periods of
such securities by the Company other than pursuant to the
underwritten public offering contemplated by such
registration statement would materially adversely impact
such underwritten public offering)";
(ix) in Section 1.7, the following shall be added after
Section 1.7(b), and subsections 1.7(c) and 1.7(d) and any
cross-references shall be renumbered accordingly:
"(c) Derivative Securities. In connection with
the offering of any Derivative Securities:
(i) in addition to any obligations that it
may have under (a) and (b) above, the Company
agrees to indemnify and hold harmless each Selling
Stockholder, its directors, officers, employees,
agents and advisors, and each other Person, if
any, who controls such Selling Stockholder
26
within the meaning of the Securities Act, against any
losses, claims, damages or liabilities, joint or
several, to which each such Person may become
subject under the Securities Act or otherwise,
insofar as such losses, claims, damages or
liabilities (or actions or proceedings, whether
commenced or threatened, in respect thereof) arise
out of or are based upon any untrue statement or
alleged untrue statement of a material fact
contained in the applicable registration
statement, prospectus, preliminary prospectus or
summary prospectus, or any amendment or supplement
thereto, for registering and offering such
Derivative Securities, or any related application,
or any omission or alleged omission to state
therein a material fact required to be stated
therein or necessary to make the statements
therein not misleading, but only to the extent
such losses, claims, damages or liabilities result
from an untrue statement, omission or allegation
thereof which were made in reliance upon and in
conformity with written information provided by or
on behalf of the Company specifically for use or
inclusion therein; and
(ii) the Company may require, as a condition
to including any Eligible Securities held by a
Selling Stockholder in any registration statement
filed pursuant to Section 1.1 or 1.2, that the
Company shall have received an undertaking
satisfactory to it from such Selling Stockholder
(x) to indemnify and hold harmless (in the same
manner and to the same extent as set forth in
subsection (c)(i) of this Section 1.7) the
Company, each director, officer, employee, agent
and advisor of the Company and each other Person,
if any, who controls the Company within the
meaning of the Securities Act, with respect to any
untrue statement or alleged untrue statement in or
omission or alleged omission from the applicable
registration statement, prospectus, preliminary
prospectus or summary prospectus, or any amendment
or supplement thereto, for registering and
offering such Derivative Securities, or any
related application, or any omission or alleged
omission to state therein a material fact required
to be stated therein or necessary to make the
statements therein not misleading and (y) that
such Selling Stockholder will reimburse each such
Company party for any reasonable fees and expenses
of outside legal counsel for such Company parties,
or other expenses reasonably incurred by them, as
incurred, in connection with investigating or
defending any such claims; provided, that such
Selling Stockholder will not so indemnify or hold
harmless any Company party to the extent such
losses, claims, damages or liabilities result from
a untrue statement, omission or allegation thereof
which were made in reliance upon and in conformity
with written information provided by or on behalf
of any such Company party
27
specifically for use or inclusion in the applicable
document. Such indemnity shall remain in full force
and effect, regardless of any investigation made by
or on behalf of the Company or any such Company party,
and shall survive the transfer of such securities
by such Selling Stockholder."; and
(x) in Section 2 thereof, the definition of Eligible
Securities shall be amended by deleting the word "and"
before "(c)" and adding the following language at the end of
clause (c) after the word "otherwise": A; and (d) in
connection with the issuance of securities of FT or DT (or
any of their Affiliates, or any finance company formed by an
underwriter to effect such a distribution) ("Derivative
Securities") that are convertible into or exchangeable
either optionally or mandatorily for any of the securities
described in clauses (a) through (c) above, such underlying
securities shall be Eligible Securities, but only to the
extent that registration of such underlying securities with
the Commission under the Securities Act is required in
addition to registration of such Derivative Securities by
the applicable issuer thereof."
(d) Effective as of the Effective Time of the FT/DT
Investment Changes, and without any further action by any Party,
Section 5.1 of the Original Standstill Agreement and Section 4.1
of the NAB Standstill Agreement (and Section 4.1 of all other
Qualified Stock Purchaser Standstill Agreements, Qualified
Subsidiary Standstill Agreements and Strategic Investor
Standstill Agreements (as such terms are defined in the Original
Standstill Agreement), if any) shall be amended to add the
following sentence at the end thereof: "Unless earlier
terminated, the provisions of this Agreement shall terminate on
July 31, 2005." Each Party further confirms that the Standstill
Agreement to which it or any of its Qualified Subsidiaries is a
party (and all other standstill agreements referred to in the
preceding sentence, if any) will continue to be applicable to FT,
DT and NAB and to the WorldCom securities they will own following
consummation of the WorldCom Merger.
(e) Effective as of the Effective Time of the FT/DT
Investment Changes, and without any further action by any Party,
the Stockholders' Agreement shall be amended by:
(i) deleting the following Articles, Sections and
Clauses thereof in their entirety: (A) Sections 2.3, 2.5,
2.6 and 2.7, (B) Article III, (C) Article IV, (D) Article
VI, and (E) Sections 7.3, 7.5, 7.8, 7.9, 7.10, 7.11, 7.13,
7.14, 7.15, 7.16 and 7.17;
(ii) deleting the following language in Section 2.4:
"If Section 2.3 hereof does not apply or is terminated
pursuant to Section 2.6, but subject to the Company's rights
under Section 2.5, each Class A Holder may Transfer Shares
(each such Class A Holder being a "Transferring
Stockholder") without restriction, provided that, with
respect to any such Transfer (including any Transfer of
Post-Restructuring Series 3 PCS Shares)" and replacing it
with the following language: "Each Class A Holder may
Transfer Shares
28
(each such Class A Holder being a "Transferring Stockholder")
without restriction, provided that, with respect to any such
Transfer of Shares (including any Transfer of Post-Restructuring
Series 3 PCS Shares)";
(iii) replacing clause (c) of Section 2.4 in its
entirety with the following: "The restrictions contained in
Section 2.4(a) shall not apply to any Transfer by a
Transferring Stockholder (x) pursuant to unsolicited
brokers' transactions or (y) pursuant to transactions,
including block trades, with a bona fide market-maker or
dealer, provided that the Transferring Stockholder shall not
be disposing in any single such transaction of Voting
Securities with a number of Votes representing greater than
5% of the Voting Power of the Company, and provided further
that the Transferring Stockholder shall have instructed the
market-maker or dealer to take all steps reasonably
practicable to avoid transferring shares to any Person or
Group that has filed a Schedule 13D that is in effect at the
time with respect to the Company pursuant to Section 13(d)
of the Exchange Act. Nothing contained herein shall
prohibit the Transferring Stockholder from entering into any
transaction required to be effected through a specialist on
the floor of a national securities exchange if required by
the rules of such exchange in connection with any
transaction permitted by this Section 2.4(c).";
(iv) deleting the following language at the end of
Section 5.1(f): "the applicable FT/DT Weighted Purchase
Price" and replacing it with the following language: "(i)
in the case of the Series 3 FON Stock, the Market Price of a
share of Series 1 FON Stock on the date of the issuance
which gave rise to such Equity Purchase Right and (ii) in
the case of the Series 3 PCS Stock, the Market Price of a
share of Series 1 PCS Stock on the date of the issuance
which gave rise to such Equity Purchase Right";
(v) Adding the following language after the last
paragraph of Section 2.8(a): "Notwithstanding any of the
foregoing, except in the case of a Transfer pursuant to
Section 2.2, no certificate issued upon Transfer or exchange
shall bear the legend set forth in the final two paragraphs
above, so long as such Transfer complied with the provisions
of this Article II."; and
(vi) replacing Section 2.8(g) in its entirety with the
following: "Prior to the consummation of a pledge of Shares
(other than Post-Restructuring Series 3 PCS Shares) by a
Class A Holder, such Class A Holder shall deliver, or shall
cause such prospective pledgee to deliver, an acknowledgment
that such pledgee has examined the legend set forth in
Section 2.8(a) and understands and agrees that any rights it
has with respect to such Shares are subject to those of the
Company set forth in this Agreement, including agreeing that
(i) no foreclosure on such Shares shall be effected except
as permitted by, and in accordance with, the terms of this
Agreement, and (ii) under no circumstances shall such
pledgee be entitled to exercise voting rights, consent
rights or disapproval
29
rights with respect to such Shares, except for the right to
vote as a holder of shares of Series 1 FON Stock or Series 1
PCS Stock, as the case may be, if such pledgee owns such
Shares after a foreclosure conducted in accordance with the
terms hereof."
(f) (i) Sprint shall, and shall cause its successors
and assigns (whether by way of merger, consolidation, asset or
stock purchase or otherwise) to (A) indemnify and exculpate the
current and former Class A Directors in a manner and to an extent
that is no less favorable to such directors than the manner in
which and extent to which such Class A Directors are presently
indemnified or are permitted to be exculpated and (B) insure the
current and former Class A Directors at any time in a manner and
to an extent that is no less favorable to such directors than
other current or former directors of Sprint are insured at such
time; provided that if the WorldCom Merger is effected, then such
current or former Class A Directors shall be indemnified and
insured in the manner described in Section 5.9 of the Amended
WorldCom Merger Agreement.
(ii) In the event that Sprint or any of its successors
or assigns (whether by way of merger, consolidation, asset or
stock purchase or otherwise) (A) consolidates with or merges into
any other Person and is not the continuing or surviving
corporation or entity of such consolidation or merger or (B)
transfers or conveys all or substantially all of its properties
and assets to any Person, then, and in each such case, proper
provision will be made so that the successors and assigns of
Sprint assume the obligations set forth in this Section 5.04(f).
(g) Effective as of the Effective Time of the FT/DT
Investment Changes and assuming that there are no borrowings
thereunder, and without any further action by any Party, each
Company Stock Payment Note and FT/DT Stock Payment Note to the
extent issued and delivered shall be deemed to be canceled and of
no force and effect and the holders thereof shall use reasonable
efforts to cause each such note to be returned to the obligor
thereof.
SECTION 5.05. Subsequent FT/DT Investment Changes.
Immediately upon the Effective Time of the WorldCom Merger, and
without any further action by any Party, (a) the Stockholders'
Agreement shall be further amended by deleting the following
Articles and Sections thereof in their entirety: (x) Articles
II, V, VII (other than Section 7.6), VIII and IX (provided,
however, that each of the Parties shall retain all rights under
such Article IX with respect to any claims that they may have
thereunder with respect to matters that arose prior to the time
that such Article IX is deleted from the Stockholders' Agreement
in accordance herewith), and (y) Sections 11.12 and 11.13; and
(b) the agreement, dated November 23, 1998, relating to the
payment of dividends and the withholding of taxes, shall be
terminated (provided, however, that each of the parties thereto
shall retain all rights thereunder with respect to any claims
that they may have thereunder with respect to matters that arose
prior to the time that such agreement is terminated).
30
SECTION 5.06. Blackout Period; Consultation Regarding
Sales by FT/DT. (a) After a determination by Sprint, acting in
good faith and after consultation with WorldCom, of the date the
Effective Time of the WorldCom Merger is reasonably expected to
occur, Sprint may, in its discretion, provide written notice to
that effect, setting forth such expected date of the Effective
Time of the WorldCom Merger (the "Expected Date"), to FT and DT.
If Sprint gives such notice, then, from the date that is the
later of (A) five days after the date that such notice is given
and (B) sixty (60) days prior to the Expected Date through the
date that is the earlier of (x) January 31, 2001 and (y)
forty-five (45) days after the Effective Time of the WorldCom
Merger, each of FT and DT hereby severally and not jointly
agrees, and agrees to cause its respective controlled Affiliates
(including any Qualified Subsidiaries that are owned by both FT
and/or its controlled Affiliates and DT and/or its controlled
Affiliates), not to sell or otherwise dispose of (i) prior to the
Effective Time of the WorldCom Merger, any FON Stock (as such
term is defined in the Sprint Articles of Incorporation) or any
other security convertible into or exchangeable for FON Stock or
the value of which is derived from the value of FON Stock or (ii)
after the Effective Time of the WorldCom Merger, any MCI WorldCom
Common Stock (as defined in the Amended WorldCom Merger
Agreement) into which shares of Sprint capital stock beneficially
owned by FT, DT and/or their controlled Affiliates are
convertible under the terms of the Amended WorldCom Merger
Agreement, or any other security convertible into or exchangeable
for MCI WorldCom Common Stock or the value of which is derived
from the value of MCI WorldCom Common Stock. The Parties agree
that if Sprint gives such notice, then each of FT and DT may make
such notice public if (i) it determines in good faith, in
connection with the disposition of any securities, that such
disclosure would be required by law or the rules of a national
securities exchange, and (ii) to the extent practicable, it
provides at least 24 hours= prior notice to Sprint that it
intends to make such disclosure.
(b) Prior to the earlier of (x) the Effective Time of
the WorldCom Merger and (y) December 31, 2000, each of FT and DT
agrees to advise Sprint, at least one day in advance, of proposed
sales of FON Stock or PCS Stock (each as defined in the Sprint
Articles of Incorporation) by it or its controlled Affiliates
(including any Qualified Subsidiaries owned by both FT and/or its
controlled Affiliates and DT and/or its controlled Affiliates),
which, taken together with all prior sales by it and its
controlled Affiliates (including any Qualified Subsidiaries owned
by both FT and/or its controlled Affiliates and DT and/or its
controlled Affiliates) over the prior four-week period, have an
aggregate value of more than $25 million. After the Effective
Time of the WorldCom Merger, and prior to December 31, 2001, each
of FT and DT agrees to advise WorldCom, at least one day in
advance, of proposed sales of WorldCom equity securities by it or
its controlled Affiliates which, taken together with sales by it
and its controlled Affiliates (including the Qualified
Subsidiaries described above) over the prior four-week period,
have an aggregate value of more than $50 million.
SECTION 5.07. Initial Preparation of Registration
Statement. Sprint agrees to begin preparation of a registration
statement prior to the Effective Time of the FT/DT Investment
31
Changes so that it may reasonably expect to cause such statement
to be filed with the SEC in accordance with the Securities Act
promptly after the Effective Time of the FT/DT Investment Changes
in respect of any demand that may be made by DT or FT pursuant to
the Registration Rights Agreement; provided that such demand
shall not relate to more securities than DT or FT, as applicable,
has a present intention to sell at the time such demand is made.
SECTION 5.08. Settlement Net Payments. Each of FT,
DT, Sprint, the Joint Venture and their respective Affiliates
shall fulfill (and FT and DT shall cause eunetcom S.A., a societe
anonyme organized under the laws of France and eunetcom, Inc., a
Delaware corporation, to fulfill) all of its obligations as set
forth in the Settlement Agreement.
SECTION 5.09. Modifications to Existing Agreements;
Releases. (a) Without any further action of the Parties, (i) the
JVA is hereby amended to reflect the modifications set forth on
Annex B hereto and (ii) the Operative Agreements and the Sprint
JV Contracts are hereby amended to delete any non-compete,
exclusivity or similar provision insofar as they purport to be
applicable to Sprint or any of its controlled Affiliates (and
Sprint and Sprint Sub hereby agree that the FT/DT Transactions
may include a similar provision with respect to the withdrawing
party identified therein and its controlled Affiliates). The
provisions of Section 22.2 of the JVA that relate to development
of a transition plan shall be deemed fulfilled by the Transition
Plan and, subject to Section 5.01(g), the FT/DT Transition Plan,
notwithstanding any other provision in the JVA that contemplates
the development of such a plan only upon termination of the JVA.
(b) As of the Closing Date, Sprint and Sprint Sub
shall cease to be parties to the JVA, the other Operative
Agreements and the Sprint JV Contracts, other than the Surviving
Agreements.
(c) At and from the Closing Date, each of the Parties
(other than Sprint and Sprint Sub), for itself and its controlled
Affiliates, does fully, irrevocably and unconditionally remise,
release and forever discharge Sprint and Sprint Sub and their
respective officers, directors, employees, agents, controlled
Affiliates, successors and assigns (the "Sprint Released
Parties") of and from any and all Subject Claims arising prior to
the Closing that such Party or its controlled Affiliates may have
against one or more of the Sprint Released Parties except for the
following obligations, which shall continue after the Closing
Date:
(i) obligations arising under this Agreement,
including those contemplated by the Transition Plan;
(ii) obligations arising under the Distribution
Agreement;
32
(iii) obligations arising under the Surviving
Agreements on or after July 1, 1999;
(iv) obligations arising under the Settlement
Agreement; and
(v) Recent Ordinary Course Obligations.
(d) At and from the Closing Date, each of Sprint and
Sprint Sub, for itself and its controlled Affiliates, does fully,
irrevocably and unconditionally remise, release and forever
discharge each Party (other than Sprint and Sprint Sub) and their
respective officers, directors, employees, agents, controlled
Affiliates, successors and assigns (the "DT/FT/JV Released
Parties") of and from any and all Subject Claims arising prior to
the Closing that Sprint or Sprint Sub or any of their respective
controlled Affiliates may have against one or more of the
DT/FT/JV Released Parties, except for the following obligations,
which shall continue after the Closing Date:
(i) obligations arising under this Agreement,
including those contemplated by the Transition Plan;
(ii) obligations arising under the Distribution
Agreement;
(iii)obligations arising under the Surviving
Agreements on or after July 1, 1999;
(iv) obligations arising under the Settlement
Agreement; and
(v) Recent Ordinary Course Obligations.
SECTION 5.10. Stockholder Loans. As of the Signing
Date, Sprint and its Affiliates have made loans to the Joint
Venture in the aggregate principal amount outstanding of
$276,000,000. On the Closing Date, the Joint Venture shall pay
Sprint or its designee (i) the amount of $276,000,000, which
represents payment in full of all principal on loans (and other
evidence of borrowed money) made by Sprint and its Affiliates to
the Joint Venture, together with (ii) any accrued and unpaid
interest due thereon at the Applicable Rate (collectively, the
"Sprint Stockholder Loans"). Upon such payment, Sprint shall
deliver to the Joint Venture, with a copy to FT and DT, a
repayment letter, pursuant to which Sprint acknowledges repayment
in full of all indebtedness for money borrowed by the Joint
Venture from Sprint and its Affiliates (the "Repayment Letter").
SECTION 5.11. Further Action; Consents; Filings. Upon
the terms and subject to the conditions hereof, each of the
Parties shall use its reasonable best efforts as promptly as
33
practicable in connection with the transactions contemplated by
this Agreement to (i) take, or cause to be taken, all appropriate
action and do, or cause to be done, all things necessary, proper
or advisable under applicable Law to consummate the transactions
contemplated by this Agreement, (ii) obtain from Governmental
Authorities and any third parties, as may be necessary, any
consents, licenses, permits, waivers, approvals, authorizations,
registrations, orders or estoppel certificates required to be
obtained or made by them or any of their Subsidiaries in
connection with the authorization, execution and delivery of this
Agreement and the consummation of the transactions contemplated
hereby, and (iii) make all necessary filings, and thereafter make
any other required submissions, with respect to this Agreement
and the transactions contemplated hereby, that are required under
any applicable Law. The Parties shall cooperate with one another
in connection with the making of all such filings, including by
providing copies of all such documents to the nonfiling Party and
its advisors prior to filing and, if requested, by accepting all
reasonable additions, deletions or changes suggested in
connection therewith; provided, however, that, subject to Section
5.03(f) hereof, Sprint shall not have any affirmative obligation
under this Section 5.11 to FT or DT with respect to those matters
related to the FT/DT Transactions. Each Party agrees to procure
the cooperation of the Joint Venture in effecting the provisions
of this Agreement and the transactions contemplated hereby. The
Joint Venture will cooperate in connection with the making of all
such filings, including by providing copies of all documents to
be filed by the Joint Venture to the other Parties and their
advisors prior to filing and, if requested, by accepting all
reasonable additions, deletions or changes suggested in
connection therewith. To the extent that the transactions
contemplated hereby require amendments or modifications to the
JVA or the Operative Agreements which are not specifically
provided for herein, the Parties shall use their reasonable best
efforts to cause such amendments or modifications to be entered
into as soon as practicable.
SECTION 5.12. Regulatory Qualifications. The Parties
shall cooperate and use their respective reasonable best efforts
as promptly as practicable to prepare all documentation, to
effect all filings (including, to the extent necessary, filings
pursuant to Article 81 of the Treaty of Rome, as amended, and
Council Regulation (EEC) no. 4064/89, as amended, to obtain
approval of the Commission of the European Union) and to obtain
all permits, consents, waivers, approvals and authorizations of
all third parties and Governmental Authorities necessary to
consummate the transactions contemplated by this Agreement.
SECTION 5.13. Notice of Developments. Prior to the
Closing, each Party shall promptly notify the other in writing of
(i) all events, circumstances, facts and occurrences arising
subsequent to the date of this Agreement that could result in any
material breach of their respective representations, warranties
or covenants in this Agreement or that could have the effect of
making any of their respective representations, warranties in
this Agreement untrue or incorrect in any material respect and
(ii) all other material developments affecting the ability of
such Party to perform its obligations under this Agreement.
34
SECTION 5.14. Termination of Joint Venture. The
Parties hereby agree that neither this Agreement nor the
transactions contemplated hereby shall be a Corporation Joint
Venture Termination, a FT/DT Joint Venture Termination or a
Termination Condition for any purpose. The Parties agree that
from and after the Signing Date until after the Closing, no Party
may declare an Impasse or Deliver a Termination Notice, and that
the provisions of Section 9.02 shall apply in the event of a
termination of the Purchase Provisions pursuant to Section 9.01.
SECTION 5.15. Amendment to Original WorldCom Merger
Agreement; Other Corporate Approvals. (a) Promptly after the
Signing Date, Sprint shall submit the Amended WorldCom Merger
Agreement to its board of directors for approval (to the extent
deemed necessary or appropriate), and Sprint, promptly after
obtaining such approval from the Sprint board of directors (if
applicable), shall execute and deliver the Amended WorldCom
Merger Agreement.
(b) This Agreement, the Settlement Agreement, the
Distribution Agreement, and the other agreements to be executed
and delivered in connection herewith have been negotiated by and
through FT, DT and Sprint on behalf of the JV Entities and FT, DT
and Sprint approve, authorize and instruct the execution of such
agreements by the appropriate authorized officers of the JV
Entities. To the extent necessary, FT, DT and Sprint shall each
use their reasonable best efforts to procure, in connection with
the execution and delivery of this Agreement, the Settlement
Agreement, the Distribution Agreement and all other agreements to
be executed and delivered by any JV Entity in connection with
this Agreement, that all necessary corporate or other action has
been taken by the JV Entities, whether by ratification or
otherwise, to duly authorize, execute and deliver such
agreements.
SECTION 5.16. Covenant Regarding Registration Rights
Agreements. If requested in writing by FT and DT at any time
after the Effective Time of the FT/DT Investment Changes, Sprint
agrees to enter into two separate registration rights agreements,
one with Sprint and FT and one with Sprint, DT and NAB, in
replacement of the Registration Rights Agreement; provided,
however, that the obligations of Sprint under the new
registration rights agreements taken together shall be no more
extensive than its obligations under the Registration Rights
Agreement. Notwithstanding the foregoing, such separate
registration rights agreements shall not include the grant by
Sprint of any registration rights that are inconsistent with
Sprint=s obligations under its registration rights agreements
with Cable Holders.
SECTION 5.17. Covenant Regarding Separate Standstill
Agreements. If requested in writing by FT, DT, NAB or Sprint at
any time after the Effective Time of the FT/DT Investment
Changes, then each of FT, DT, NAB and Sprint agrees to enter into
separate standstill agreements, one with Sprint and FT (and its
Subsidiaries), one with Sprint and DT (and its Subsidiaries), and
one with Sprint and NAB, in replacement of the Standstill
Agreements; provided, however, such replacement standstill
agreements shall be identical to the Standstill
35
Agreement that such agreement replaces, except that: (i) one
replacement standstill agreement will be with FT (and its
Subsidiaries), one replacement standstill agreement will be with
DT (and its Subsidiaries), and one replacement standstill agreement
will be with NAB, (ii) all covenants, restrictions and other agreements
contained in the replacement standstill agreements shall only be
determined with reference to one of FT (and its Subsidiaries) or
DT (and its Subsidiaries), and, to the extent the Standstill
Agreement applies to Affiliates or other related parties, related
parties of one of them, and (iii) the numerical percentages set
forth in Sections 2.1 and 2.2 of the Standstill Agreement shall
each be divided in half; provided, however, that the references
in the Standstill Agreement to "20%" shall in the replacement
standstill agreements be proportional to reflect instead the
relative Voting Power (as defined in the Standstill Agreement) in
relation to such "20%" of FT and its Qualified Subsidiaries, on
the one hand, and DT and its Qualified Subsidiaries (including
NAB), on the other hand, as of the date of this Agreement as
reflected in the fifth sentence of Section 5.03(a), as modified
to reflect only any changes in relative Voting Power after the
date of this Agreement due to (x) the change in the relative
votes granted under the Sprint Articles of Incorporation to the
Sprint FON Stock and the Sprint PCS Stock, and (y) the exercise
to a different extent by FT (or any of its Qualified
Subsidiaries) or DT (or any of its Qualified Subsidiaries) of its
Equity Purchase Rights (as defined in the Stockholders'
Agreement); and provided further that (i) the sum of such
comparable references to such 20% figure in (A) the replacement
standstill agreement(s) of FT and its Subsidiaries, and (B) the
replacement standstill agreement(s) of DT and its Subsidiaries
(including NAB) shall not exceed 20% and (ii) no such comparable
reference in any replacement standstill agreement individually
shall exceed 12%.
ARTICLE VI
CONDITIONS TO THE CLOSING
SECTION 6.01. Conditions to the Obligations of Each
Party. The obligations of each Party to consummate the Closing
are subject to the satisfaction or written waiver of the
following conditions:
(a) No Order. No Governmental Authority shall have
enacted, threatened, issued, promulgated, enforced or
entered any Governmental Order that is then in effect,
pending or threatened, and has, or is reasonably likely to
have, the effect of prohibiting consummation of the Closing;
(b) No Proceeding or Litigation. No Action shall have
been commenced or threatened by or before any Governmental
Authority against any Party hereto, seeking to restrain or
materially and adversely alter the transactions contemplated
hereby which is
36
likely to render it impossible or unlawful to consummate the transactions
contemplated by this Agreement; provided, however, that a Party waives the
provisions of this Section 6.01(b) if it has solicited or encouraged any
such Action;
(c) Closing Deliveries. Each Party shall have
received the closing deliveries due it as indicated in
Sections 2.07, 2.08, 2.09 and 2.10, as applicable; and
(d) Consents and Approvals. Any waiting period (and
any extension thereof) applicable to the consummation of the
transactions contemplated by this Agreement under applicable
Law shall have expired or been terminated; and, to the
extent required, the Parties shall have received approval
of the Commission of the European Union, pursuant to Article
81 of the Treaty of Rome, as amended, and Council Regulation
(EEC) no. 4064/89, as amended.
SECTION 6.02. Conditions to the Obligations of Sprint
and Sprint Sub. The obligations of Sprint and Sprint Sub to
consummate the Closing are subject to the satisfaction or written
waiver of the following condition:
Representations, Warranties and Covenants. The
representations and warranties of Atlas, FT and DT contained
in this Agreement shall have been true and correct in all
material respects when made and true and correct in all
material respects as of the Closing Date, with the same
force and effect as if made as of the Closing Date (except
for representations and warranties made as of a specific
date, which will be true and correct in all material
respects as of such date), and the covenants and agreements
contained in this Agreement to be complied with by Atlas, FT
and DT on or before the Closing Date shall have been
complied with in all material respects, and Sprint and
Sprint Sub shall have received a certificate from Atlas, FT
and DT to such effect signed by a duly authorized officer.
SECTION 6.03. Conditions to the Obligations of Atlas,
FT and DT. The obligations of Atlas, FT and DT to consummate the
Closing are subject to the satisfaction or written waiver of the
following condition:
Representations, Warranties and Covenants. The
representations and warranties of Sprint and Sprint Sub
contained in this Agreement (including in the Transition
Plan) shall have been true and correct in all material
respects when made and true and correct in all material
respects as of the Closing Date, with the same force and
effect as if made as of the Closing Date (except for
representations and warranties made as of a specific date,
which will be true and correct in all material respects as
of such date), and the covenants and agreements contained in
this Agreement (including in the Transition Plan) to be
complied with by Sprint and Sprint Sub on or before the
Closing Date shall have been
37
complied with in all material respects, and FT and DT shall
have received certificates of Sprint and Sprint Sub to such
effect signed by duly authorized officers thereof.
ARTICLE VII
TAX MATTERS
SECTION 7.01. Tax Obligations. (a) The Parties agree
that, subject to the express provisions of Section 7.01(b) hereof
relating to the payment of transfer and similar Taxes, Sprint
will pay (i) the Taxes for which Sprint or any of its Affiliates
has Liability under applicable Law arising out of the transfer of
the Sprint Venture Interests to DT and FT contemplated herein
(including any Taxes imposed upon Sprint or any of its Affiliates
in connection with the establishment of the Joint Venture) and
(ii) the Taxes arising out of any direct or indirect transfer of
ownership of any of the Sprint Venture Interests to any Sprint
Affiliate on or prior to the Closing Date pursuant to Section
10.07 hereof.
(b) The Parties agree that all sales, transfer,
filing, recordation and similar taxes and fees (including all
real estate transfer taxes and conveyance and recording fees, if
any), and all stamp taxes, registration taxes, duties or other
charges arising from or associated with the sale and transfer of
the Sprint Venture Interests to DT and FT as contemplated
hereunder shall be borne by the Party on whom the applicable
statute, law or regulation imposes the primary liability for the
payment of such taxes, duties, fees or other charges, and the
Party that has primary liability for any such tax, duty, fee or
other charge shall indemnify and hold harmless each other Party
from and against any liability with respect to such tax, duty,
fee or other charge that is borne by such other Party.
(c) Sprint and Sprint Sub, jointly and severally,
agree to indemnify and hold harmless DT, FT, any Permitted
Assignee, the Joint Venture, their Affiliates, successors,
assigns, officers, directors, employees and agents against any
Tax Liability that is the obligation of Sprint under Section
7.01(a) hereof.
(d) DT and FT agree to indemnify and hold harmless
Sprint, Sprint Sub, any Permitted Assignee, the Joint Venture,
their Affiliates, successors, assigns, officers, directors,
employees and agents against any Tax Liability that results from
(i) the transfer by DT or FT prior to or concurrent with the
Closing of any of their Venture Interests or any of their rights
or obligations under this Agreement pursuant to Section 10.07
hereof or (ii) the formation of any JV Entity pursuant to the
exception for the formation of a Wholly Owned Subsidiary of
another JV Entity set forth in paragraph 12 of Schedule IV.
38
(e) Each indemnifying Party also agrees to indemnify
and hold harmless each indemnified Party against any loss,
damage, liability or expense, including reasonable fees for
attorneys and other outside consultants, incurred in contesting
or otherwise in connection with any Taxes for which such
indemnifying Party has an obligation under this Section 7.01.
(f) Payment by an indemnifying Party of any amounts
due under this Article VII in respect of Taxes shall be made at
least three Business Days before an amount indemnified against
under this Article VII is due to a taxing authority. If
liability under this Article VII is in respect of costs or
expenses other than Taxes, payment by the indemnifying Party of
any amounts due under this Article VII shall be made within five
Business Days after the date when such indemnifying Party has
been notified that it or an Affiliate has a liability for a
determinable amount under this Article VII and is provided with
calculations or other materials supporting such liability.
(g) All obligations contained in this Article VII
shall expressly survive the Closing Date notwithstanding any
provision herein to the contrary.
SECTION 7.02. Miscellaneous. (a) The Parties agree to
treat all payments made by any of them to or for the benefit of
the other Parties under this Article VII, under other indemnity
provisions of this Agreement and for any misrepresentations or
breaches of warranties or covenants, as adjustments to the
Purchase Price.
(b) All obligations and liabilities of the Parties
under the Tax Matters Agreement, dated January 31, 1996, shall
remain in effect for all taxable periods through the Closing
Date. Notwithstanding any provision of Article V hereof to the
contrary, Sprint and Sprint Sub shall continue to have the same
rights and obligations under the Tax Matters Agreement concerning
decisions by or relating to the Joint Venture and any JV Entity
through the Closing Date as Sprint and Sprint Sub had immediately
prior to the Signing Date. Except as otherwise provided above,
the Tax Matters Agreement shall be terminated effective as of the
Closing Date.
(c) From and after the Signing Date, Sprint and Sprint
Sub shall not without the prior written consent of DT and FT
(which consent will not be unreasonably withheld) make, or cause
or permit to be made, any Tax election that would affect the
Joint Venture or any of its Subsidiaries. For purposes of this
Section 7.02(c), if DT or FT withhold consent, they will be
deemed to have reasonably withheld such consent if the tax
election would, in the opinion of outside counsel to DT or FT,
have a substantial risk of imposing a tax cost on DT, FT, Atlas
or the Joint Venture; provided, however, that if Sprint and
Sprint Sub shall indemnify DT, FT, Atlas and the Joint Venture
from and against any potential tax cost arising in connection
with such election, then DT and FT shall consent to the making of
such Tax election.
39
(d) For purposes of this Article VII, "DT", "FT",
"Sprint" and "Sprint Sub", respectively, shall include each
member of the affiliated group of corporations of which it is or
becomes a member (other than the Joint Venture and Subsidiaries
of the Joint Venture, except to the extent expressly referenced).
(e) Each JV Entity that is treated as a partnership
for U.S. income tax purposes shall close its books with respect
to the transfer of the interest of Sprint and Sprint Sub on the
Closing Date as required by Section 706(c)(2)(A) of the Internal
Revenue Code of 1986, as amended. Each such JV Entity shall
prepare, consistent in all material respects with past practice
in such regard (except to the extent that such JV Entity is
advised by an independent tax professional of recognized standing
that a deviation from past practice with respect to a given issue
is required), and submit to Sprint, within 120 days after the
Closing Date, drafts of the proposed U.S. federal income tax
return and applicable U.S. state income tax returns of such JV
Entity for review and comment by Sprint. The Parties shall
resolve any differences with respect to such returns and each JV
Entity shall file such U.S. federal income tax return and each
applicable U.S. state income tax return not later than the due
date thereof (including extensions). Following the Signing Date,
Sprint and Sprint Sub shall, at their own expense, be entitled to
participate fully in the preparation of any audit or other
proceedings with respect to any U.S. federal and state income tax
returns that were filed by JV Entities that are treated as
partnerships for U.S. income tax purposes which relate to taxable
periods ending on or before the Closing Date.
(f) The Parties agree that the Purchase Price shall be
allocated among the Sprint Venture Interests for all U.S. federal
income tax purposes in the manner set forth in Schedule III.
(g) Between the Signing Date and the Closing Date and
following the Closing Date, the Parties shall cooperate fully
with each other in providing access to and copies of all books
and records and other information of the JV Entities as may
reasonably be requested in connection with all applicable tax
filings, compliance burdens, audits and litigation. Such
cooperation shall include the retention and production of all
books, records and other information that may reasonably be
deemed relevant to any tax audit, litigation or other proceeding
and making employees available on a mutually convenient basis to
provide additional information and explanation of any material
provided hereunder.
ARTICLE VIII
INDEMNIFICATION
40
SECTION 8.01. Survival of Representations and
Warranties. The representations and warranties of the Parties
contained in this Agreement shall survive until the third
anniversary of the Closing Date, except that all representations
and warranties contained in Section 4.04 shall survive
indefinitely. If written notice of a claim has been given prior
to the expiration of the applicable representations and
warranties by any Party, then the relevant representations and
warranties of the other Parties shall survive as to such claim,
until such claim has been finally resolved.
SECTION 8.02. Indemnification. (a) Atlas, FT, DT,
NAB, a Permitted Assignee of either of them, the Joint Venture,
their respective Affiliates and their respective successors and
assigns, officers, directors, employees, agents and Affiliates
shall be indemnified and held harmless by Sprint and Sprint Sub,
jointly and severally, for any and all Liabilities, losses,
damages, claims, costs and expenses, interest, awards, judgments
and penalties (including attorneys' fees and expenses) actually
suffered or incurred by them (including any Action brought or
otherwise initiated by any of them) (hereinafter, a "Purchaser
Loss") arising out of or resulting from:
(i) the breach of any representation or warranty made
by Sprint or Sprint Sub contained in this Agreement; or
(ii) the breach of any covenant or agreement by Sprint
or Sprint Sub contained in this Agreement.
(b) Sprint, Sprint Sub, their respective Affiliates,
successors and assigns and the officers, directors, employees and
agents of Sprint, Sprint Sub, their Affiliates and their
successors and assigns shall be indemnified and held harmless by
FT for any and all Liabilities, losses, damages, claims, costs
and expenses, interest, awards, judgments and penalties
(including attorneys' fees and expenses) actually suffered or
incurred by them (including any Action brought or otherwise
initiated by any of them) (hereinafter, a "Seller Loss", and each
of a Seller Loss and a Purchaser Loss is hereinafter referred to
as a "Loss" with respect to such Party) arising out of or
resulting from:
(i) the breach of any representation or warranty made
by FT contained in this Agreement; or
(ii) the breach of any covenant or agreement by FT
contained in this Agreement.
(c) Sprint, Sprint Sub, their respective Affiliates,
successors and assigns and the officers, directors, employees and
agents of Sprint, Sprint Sub, their Affiliates and their
41
successors and assigns shall be indemnified and held harmless by
DT for Seller Losses arising out of or resulting from:
(i) the breach of any representation or warranty made
by DT or NAB contained in this Agreement; or
(ii) the breach of any covenant or agreement by DT or
NAB contained in this Agreement.
(d) Sprint, Sprint Sub, their respective Affiliates,
successors and assigns and the officers, directors, employees and
agents of Sprint, Sprint Sub, their Affiliates and their
successors and assigns shall be indemnified and held harmless by
FT and DT, severally, to the extent of 50% each, and not jointly,
for Seller Losses arising out of or resulting from:
(i) the breach of any representation or warranty made
by Atlas contained in this Agreement; or
(ii) the breach of any covenant or agreement of Atlas
contained in this Agreement.
(e) Whenever a claim shall arise for indemnification
under this Article VIII, the Party entitled to indemnification
(the "Indemnified Party") shall give notice to the other Party
(the "Indemnifying Party") of any matter that the Indemnified
Party has determined has given or could give rise to a right of
indemnification under this Agreement promptly, but in no event
later than 60 days after the Indemnified Party first learns of
such claim, stating the amount of the Loss, if known, and method
of computation thereof, and containing a reference to the
provisions of this Agreement in respect of which such right of
indemnification is claimed or arises. The obligations and
Liabilities of the Indemnifying Party under this Article VIII
with respect to Losses arising from claims of any third-party
which are subject to the indemnification provided for in this
Article VIII ("Third-Party Claims") shall be governed by and
contingent upon the following additional terms and conditions:
if an Indemnified Party shall receive notice of any Third-Party
Claim, the Indemnified Party shall give the Indemnifying Party
notice of such Third-Party Claim following receipt by the
Indemnified Party of such notice in the time frame provided
above; provided, however, that the failure to provide, or any
delay in providing, such notice shall not release the
Indemnifying Party from any of its obligations under this Article
VIII, except to the extent that it is materially prejudiced by
such failure or delay, and shall not relieve the Indemnifying
Party from any other obligation or Liability that it may have to
any Indemnified Party otherwise than under this Article VIII.
The Indemnifying Party shall be entitled to assume and control
the defense of such Third-Party Claim at its expense and through
counsel of its choice if it gives notice of its intention to do
so to the Indemnified Party within five days of the receipt of
such notice from the Indemnified Party; provided, however, that if
42
there exists or is reasonably likely to exist a conflict of
interest that would make it inappropriate in the judgment of the
Indemnified Party, in its sole and absolute discretion, for the
same counsel to represent both the Indemnified Party and the
Indemnifying Party, then the Indemnified Party shall be entitled
to retain its own counsel, in each jurisdiction for which the
Indemnified Party determines that counsel is required, at the
expense of the Indemnifying Party. In the event the Indemnifying
Party exercises the right to undertake any such defense against
any such Third-Party Claim as provided above, the Indemnified
Party shall cooperate with the Indemnifying Party in such defense
and make available to the Indemnifying Party, at the Indemnifying
Party's expense, all witnesses, pertinent records, materials and
information in the Indemnified Party's possession or under the
Indemnified Party's control relating thereto as is reasonably
required by the Indemnifying Party. Similarly, in the event the
Indemnified Party is, directly or indirectly, conducting the
defense against any such Third-Party Claim, the Indemnifying
Party shall cooperate with the Indemnified Party in such defense
and make available to the Indemnified Party, at the Indemnifying
Party's expense, all such witnesses, records, materials and
information in the Indemnifying Party's possession or under the
Indemnifying Party's control relating thereto as is reasonably
required by the Indemnified Party. No such Third-Party Claim may
be settled by the Indemnifying Party or the Indemnified Party
without the prior written consent of the other. Notwithstanding
the foregoing, any claim for indemnity in respect of matters
covered by Article VII shall be subject to the provisions of
Article VII and not this Section 8.02(e).
ARTICLE IX
TERMINATION
SECTION 9.01. Termination. The Purchase Provisions
may be terminated and the other transactions contemplated by the
Purchase Provisions may be abandoned at any time prior to the
Closing Date as follows:
(a) by mutual written consent of the Parties;
(b) by any Party if the Closing shall not have
occurred by December 31, 2000; or
(c) by any Party in the event that any Governmental
Authority shall have issued an order, decree or ruling or
taken any other action restraining, enjoining or otherwise
prohibiting the consummation of the transactions
contemplated by this Agreement and such order, decree,
ruling or other action shall have become final and
nonappealable.
43
SECTION 9.02. Effect of Termination. In the event of
termination of the Purchase Provisions pursuant to Section 9.01:
(a) Except as otherwise provided in the last sentence
of this Section 9.02, the Purchase Provisions shall
forthwith become void, there shall be no liability relating
to such provisions or the transactions contemplated by such
provisions on the part of the Parties or any of their
respective officers or directors, and all rights and
obligations of each Party contained in the Purchase
Provisions shall cease except as set forth in Section 10.02;
(b) the Surviving Provisions shall survive and remain
in full force and effect;
(c) (i) Article 10 of the JVA shall continue to not
apply to Sprint or any of its Affiliates, (ii) Sprint and
its Affiliates will continue not to have any obligation
under Article 10 of the JVA, (iii) Sprint will have no right
to enforce the provisions contained in Article 10 of the
JVA, and (iv) no Person will have any right to enforce
Article 10 against Sprint or any of its Affiliates;
(d) at any time between the date of termination of the
Purchase Provisions (the "Purchase Provisions Termination
Date") and the earliest of (i) 90 days after the Purchase
Provisions Termination Date, (ii) December 31, 2000 and
(iii) the date that FT and DT notify Sprint that they elect
not to pursue a sale of the Sprint Venture Interests to a
third party pursuant to this Section 9.02(d) (such earliest
date being the "Interim Sale Termination Date"), Sprint
agrees to sell the Sprint Venture Interests to any third
party only at the request of FT or DT, so long as:
(A) such third party pays Sprint the Purchase
Price or an amount in excess thereof (the "Third Party
Purchase Price");
(B) such third party causes the Joint Venture to
pay Sprint any amounts due Sprint under the Sprint
Stockholder Loans and any other debt obligations of the
Joint Venture to Sprint;
(C) the terms and conditions of such sale and
purchase include the requirement set forth in Section
9.02(d)(BB) hereof;
(D) a closing of the sale of such Sprint Venture
Interests on a date prior to December 31, 2000 is
reasonably likely and the related purchase agreement
with such third party provides that such a closing must
occur by December 31, 2000; and
44
(E) Sprint is otherwise treated in a manner that
is consistent with the terms and conditions of this
Agreement, including the tax provisions under this
Agreement.
If Sprint sells the Sprint Venture Interests to a third
party pursuant to this Section 9.02(d), then the following
provisions shall apply:
(AA) if the Third Party Purchase Price is greater
than the Purchase Price, Sprint shall pay to each of FT
and DT an amount equal to five percent (5%) of the
difference between (1) the Third Party Purchase Price
and (2) the Purchase Price; and
(BB) the purchase agreement with such third party
shall provide that if the third party sells the Sprint
Venture Interests within one year after purchasing the
Sprint Venture Interests from Sprint and the amount
received by the third party from the sale of the Sprint
Venture Interests is greater than the Third Party
Purchase Price, the third party shall pay to Sprint an
amount equal to ninety percent (90%) of the difference
between (1) the amount received by such third party
from the sale of the Sprint Venture Interests and (2)
the Third Party Purchase Price;
(e) if Sprint does not sell the Sprint Venture
Interests to a third party prior to the Interim Sale
Termination Date pursuant to Section 9.02(d) hereof, at any
time on or after December 31, 2000, any of Sprint, FT or DT
may trigger the Exit Arrangements set forth in Annex C
hereto and none of the Parties will have any right or basis
for objection to the implementation of such Exit
Arrangements; and
(f) at the Interim Sale Termination Date, all
Sprint representatives who resigned from the Governing
Boards pursuant to Section 5.01(b) shall be reappointed to
such Governing Boards and, if requested by Sprint, FT and DT
shall designate those individuals requested by Sprint to
become members of the Governing Boards and take such other
action as is required to cause such individuals to become
members of the Governing Boards so that the governance
rights of FT, DT and Sprint in the Joint Venture are
equivalent to the rights of such Parties immediately prior
to entering into this Agreement.
Nothing in this Section 9.02 shall relieve any Party
from liability for the breach of any of its representations,
warranties, covenants or agreements set forth in this Agreement.
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ARTICLE X
GENERAL PROVISIONS
SECTION 10.01. Waiver. Any Party to this Agreement
may (i) extend the time for the performance of any of the
obligations or other acts of the other Parties, (ii) waive any
inaccuracies in the representations and warranties of the other
Parties contained herein or in any document delivered by the
other Parties pursuant hereto or (iii) waive compliance with any
of the agreements or conditions of the other Parties contained
herein. Any such extension or waiver shall be valid only if set
forth in writing signed by the Party to be bound thereby. Any
waiver of any term or condition shall not be construed as a
waiver of any subsequent breach or a subsequent waiver of the
same term or condition, or a waiver of any other term or
condition, of this Agreement. The failure of any Party to assert
any of its rights hereunder shall not constitute a waiver of any
of such rights.
SECTION 10.02. Expenses. Except as otherwise
specified in this Agreement, all costs and expenses, including
fees and disbursements of counsel, financial advisors and
accountants, incurred in connection with this Agreement and the
transactions contemplated hereby shall be paid by the Party
incurring such costs and expenses, whether or not the Closing
shall have occurred.
SECTION 10.03. Notices. All notices, requests,
claims, demands and other communications hereunder shall be in
writing, in English, and shall be given or made by delivery in
person, by courier service, by telecopy, by e-mail or by
registered or certified mail (postage prepaid, return receipt
requested) to the respective Parties at the following addresses
(or at such other address for a Party as shall be specified in a
notice given in accordance with this Section 10.03):
(a) If to FT:
0 xxxxx x'Xxxxxxx
00000 Xxxxx Xxxxx 00
Xxxxxx
Telephone: 00-0-00-00-00-00
Telecopy: 00-0-00-00-00-00
Attention: Senior Executive Vice President and
Chief Financial Officer
(e-mail: xxxxxxxxx.xxxxxxxxxxx@xxxxxxxxxxxxx.xx)
with copies (which shall not constitute notice to FT) to:
00
0 xxxxx x'Xxxxxxx
00000 Xxxxx Xxxxx 00
Xxxxxx
Telephone: 00-0-00-00-00-00
Telecopy: 00-0-00-00-00-00
Attention: Chief Legal and Tax Officer
(e-mail: xxxxxxxx.xxxxxxxxx@xxxxxxxxxxxxx.xx)
and
Shearman & Sterling
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
X.X.X.
Telephone: 0 (000) 000-0000
Telecopy: 0 (000) 000-0000
Attention: Xxxxxx X. Xxxx, Esq.
(e-mail: xxxxx@xxxxxxxx.xxx)
(b) If to DT:
Xxxxxxxxx-Xxxxx-Xxxxx 000
X-00000 Xxxx
Xxxxxxx
Telephone: 00-000-000-0000
Telecopy: 00-000-000-0000
Attention: Xxxxxxx Xxxxxxx
(e-mail: xxxxxxx@xxxxxxx.xx)
with a copy (which shall not constitute notice to DT) to:
Cleary, Gottlieb, Xxxxx & Xxxxxxxx
Xxx Xxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
X.X.X.
Telephone: 0 (000) 000-0000
Telecopy: 1 (212) 225-3999
Attention: Xxxxxx X. Xxxxx, Esq.
(e-mail: xxxxxx@xxxx.xxx)
47
(c) If to NAB:
NAB Nordamerika Beteiligungs Holding GmbH
x/x Xxxxxxxx Xxxxxxx XX
Xxxxxxxxx-Xxxxx-Xxxxx 000
00000 Xxxx
Xxxxxxx
Telephone: 00-000-000-00000
Telecopy: 00-000-000-0000
Attention: Xx. Xxxxx Klesing, Managing Director
(e-Mail: xxxxx.xxxxxxx@xxxxxxx.xx)
with a copy (which shall not constitute notice to NAB) to:
Cleary, Gottlieb, Xxxxx & Xxxxxxxx
Xxx Xxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
X.X.X.
Telephone: 0 (000) 000-0000
Telecopy: 1 (212) 225-3999
Attention: Xxxxxx X. Xxxxx, Esq.
(e-mail: xxxxxx@xxxx.xxx)
(d) If to Sprint or Sprint Sub:
0000 Xxxxxxx Xxxxxxx
Xxxxxxx, Xxxx Wing
Xxxxxxxx, Xxxxxx 00000
X.X.X.
Telephone: 0 (000) 000-0000
Telecopy: 0 (000) 000-0000
Attention: General Counsel
(e-mail: Xxxxxxx.Xxxxxx@xxxx.xxxxxx.xxx)
48
with a copy (which shall not constitute notice to
Sprint or Sprint Sub) to:
King & Spalding
000 Xxxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxx 00000
X.X.X.
Telephone: 0 (000) 000-0000
Telecopy: 0 (000) 000-0000
Attention: Xxxxx X. Xxxxxxxxx, Esq.
(e-mail: xxxxxxxxxx@xxxxx.xxx)
(e) If to Atlas, then to each of DT and FT as provided
above, in care of Atlas.
(f) If to any of the JV Entities set forth on Schedule
II hereto:
Global One
00000 Xxxxxxx Xxxxxx Xxxxx
Xxxxxx, XX X.X.X. 00000-0000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Attention: Xxxxxx Xxxxx
(e-mail: xxxxxx.xxxxx@xxxxxxxxx.xxx)
with a copy (which shall not constitute notice to
a JV Entity) to each of DT and FT, as provided
above, and to:
Global One
00000 Xxxxxxx Xxxxxx Xxxxx
Xxxxxx, XX X.X.X. 00000-0000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Attention: General Counsel
(e-mail: xxx.xxxxxx@xxxxxxxxx.xxx)
All such notices shall be deemed to have been duly given or made
upon receipt; provided, however, that a notice sent via telecopy
or e-mail shall only be deemed to have been duly given or made on
the date that the sender thereof confirms it via courier service
or by registered or certified mail (return receipt requested).
49
SECTION 10.04. Headings. The descriptive headings
contained in this Agreement are for convenience of reference only
and shall not affect in any way the meaning or interpretation of
this Agreement.
SECTION 10.05. Severability. If any term or other
provision of this Agreement is invalid, illegal or incapable of
being enforced by any Law or public policy, all other terms and
provisions of this Agreement shall nevertheless remain in full
force and effect so long as the economic or legal substance of
the transactions contemplated hereby is not affected in any
manner materially adverse to any Party. Upon such determination
that any term or other provision is invalid, illegal or incapable
of being enforced, the Parties shall negotiate in good faith to
modify this Agreement so as to effect the original intent of the
Parties as closely as possible in an acceptable manner in order
that the transactions contemplated hereby are consummated as
originally contemplated to the greatest extent possible.
SECTION 10.06. Entire Agreement. This Agreement,
together with the agreements referred to herein (including the
Settlement Agreement), constitutes the entire agreement of the
Parties with respect to the subject matter hereof and thereof and
supersedes all prior agreements and undertakings, both written
and oral, among the Parties with respect to the subject matter
hereof and thereof.
SECTION 10.07. Assignment. This Agreement may not be
assigned by any Party without the express written consent of all
other Parties. Notwithstanding any of the foregoing nor any
provision set forth in the JVA, (a) each of FT and DT may assign
its rights to purchase the Sprint Venture Interests pursuant to
Article II of this Agreement to one or more of its Wholly Owned
Subsidiaries, (b) each of FT and DT may assign its rights to
purchase the Sprint Venture Interests under Article II of this
Agreement to Atlas or to the other of FT and DT or to a Wholly
Owned Subsidiary of such other Party (an assignee pursuant to (a)
or (b) herein being referred to as a "Permitted Assignee"), and
(c) each of Sprint and Sprint Sub may transfer any of the Sprint
Venture Interests to a Wholly Owned Subsidiary of Sprint or
Sprint Sub; provided, however, that in the case of an assignment
described in (a), the following conditions shall be satisfied:
(i) the assigning Party shall give notice of such assignment to
the other Parties, (ii) such assignment shall, by its terms, not
relieve the assigning Party of its obligations contained in this
Agreement and (iii) the closing of such assignment shall not take
place earlier than the Closing; provided further that in the case
of an assignment described in (b), the following additional
conditions shall be satisfied: (i) FT or DT shall have provided
the other with a prior written consent to such assignment and
(ii) one of FT or DT shall at all times remain liable for
satisfaction of the Purchase Price and (iii) the closing of such
assignment shall not take place earlier than the Closing;
provided further that in the case of a transfer described in (c),
the following conditions shall be satisfied: (i) the
transferring Party shall give notice of such transfer to the
other Parties and (ii) such transfer shall, by its terms, not
relieve the transferring Party of its obligations contained in
this Agreement. This Agreement shall be binding upon, inure to
the
50
benefit of, and be enforceable by, the Parties and their
respective successors and permitted assigns.
SECTION 10.08. No Third-Party Beneficiaries. Except
for the provisions of Article VII and Article VIII relating to
indemnified parties, this Agreement shall be binding upon and
inure solely to the benefit of the Parties and their respective
successors and permitted assigns, and nothing herein, express or
implied, is intended to or shall confer upon any other Person any
legal or equitable right, benefit or remedy of any nature
whatsoever under or by reason of this Agreement.
SECTION 10.09. Amendment. This Agreement may not be
amended or modified except (a) by an instrument in writing signed
by the Parties or (b) by a waiver in accordance with Section
10.01.
SECTION 10.10. Governing Law and Jurisdiction. (a)
This Agreement shall be governed by and construed in accordance
with the internal laws of the State of New York. Except in
accordance with the last sentence of this Section 10.10(a), all
disputes, actions or proceedings arising out of or relating to
this Agreement, or any of the transactions contemplated hereby,
shall be brought only in the United States District Court for the
Southern District of New York or, in the event (but only in the
event) that such court does not have subject matter jurisdiction
over such dispute, action or proceeding, in the courts of the
State of New York located in the Borough of Manhattan. Each
Party (i) consents to submit itself to the personal jurisdiction
of each of the aforesaid courts and (ii) agrees that it will not
bring any action, suit or proceeding arising out of or relating
to this Agreement, or any of the transactions contemplated
hereby, in any court other than as set forth above. All
disputes, actions or proceedings arising out of or relating to
the Transition Plan or the Distribution Agreement shall be
resolved as provided therein.
(b) Each of Atlas, FT and DT agrees that, to the
extent that it or any of its property is or becomes entitled at
any time to any immunity on the grounds of sovereignty or
otherwise based upon its status as an agency or instrumentality
of government from any legal action, suit or proceeding or from
setoff or counterclaim relating to this Agreement from the
jurisdiction of any competent court, from service of process,
from attachment prior to judgment, from attachment in aid of
execution of a judgment, from execution pursuant to a judgment or
arbitral award, or from any other legal process in any
jurisdiction, it, for itself and its property expressly,
irrevocably and unconditionally waives, and agrees not to plead
or claim, any such immunity with respect to such matters arising
with respect to this Agreement or the subject matter hereof
(including any obligation for the payment of money). Each of
Atlas, FT and DT agrees that the waiver in this provision is
irrevocable and is not subject to withdrawal in any jurisdiction
or under any statute, including the Foreign Sovereign Immunities
Act, 28 U.S.C. Section
51
1602 et seq. The foregoing waiver shall constitute a present
waiver of immunity at any time any action is initiated against
Atlas, FT or DT with respect to this Agreement.
SECTION 10.11. Interpretation. In the event of any
conflict between or among the provisions of this Agreement and
the JVA, the terms of this Agreement shall govern.
SECTION 10.12. Counterparts. This Agreement may be
executed and delivered (including by facsimile transmission) in
one or more counterparts, and by the different Parties hereto in
separate counterparts, each of which when executed shall be
deemed to be an original but all of which taken together shall
constitute one and the same agreement.
SECTION 10.13. Specific Performance. The Parties
agree that irreparable damage would occur in the event that
Article II or Article V of this Agreement is not performed in
accordance with the terms hereof and that the Parties shall, to
the extent permitted by applicable Law, be entitled to seek from
the United States District Court for the Southern District of New
York or, in the event (but only in the event) that such court
does not have subject matter jurisdiction over such dispute,
action or proceeding, in the courts of the State of New York
located in the Borough of Manhattan specific performance of the
terms hereof relating to Article II or Article V, in addition to
any other remedy at law or equity.
SECTION 10.14. No Partnership. Nothing in this
Agreement shall authorize any Party to act as an agent or
representative of any of the others (or any of them) or to
authorize any such Party to assume or create an obligation on
behalf of the other (or others), except as expressly provided in
this Agreement.
SECTION 10.15. Terms Generally. References in this
Agreement to articles, sections, paragraphs, clauses, schedules,
annexes and exhibits are to articles, sections, paragraphs,
clauses, schedules, annexes and exhibits in or to this Agreement
unless otherwise indicated. Whenever the context may require,
any pronoun includes the corresponding masculine, feminine and
neuter forms. Any term defined by reference to any agreement,
instrument or document has the meaning assigned to it whether or
not such agreement, instrument or document is in effect. The
words "include", "includes" and "including" are deemed to be
followed by the phrase "without limitation". Unless the context
otherwise requires, any agreement, instrument or other document
defined or referred to herein refers to such agreement,
instrument or other document as from time to time amended,
supplemented or otherwise modified from time to time. Unless the
context otherwise requires, references herein to any Person
include its successors and assigns.
SECTION 10.16. Public Announcements. Any Party shall
have the right to issue a press release or other public
communication relating to this Agreement, without consultation
with any other Party; provided, however, that any initial press
release issued by a Party in
52
connection with this Agreement shall not be inconsistent with the
draft press release with respect to the provisions of this Agreement
previously delivered by Sprint to FT, DT and NAB.
53
IN WITNESS WHEREOF, the Parties have caused this
Agreement to be executed as of the date first written above by
their respective officers thereunto duly authorized.
FRANCE TELECOM S.A.
By: /s/ Xxxxxxx Xxxxxxxxx
Name: Xxxxxxx Xxxxxxxxx
Title: Group Executive President
Large Business Division
DEUTSCHE TELEKOM AG
By: /s/ Xxxxxxx X. Xxxxxxx
Name: Xxxxxxx X. Xxxxxxx
Title: Board of Management, International
NAB NORDAMERIKA BETEILIGUNGS
HOLDING GMBH
By: /s/ Xxxxx Xxxxxxx
Name: Xxxxx Xxxxxxx
Title: Managing Director
By: /s/ Xx. Xxxxxxx Xxxxxxx
Name: Xx. Xxxxxxx Xxxxxxx
Title: Managing Director
ATLAS TELECOMMUNICATIONS, S.A.
By: /s/ Xxxxxx Xxxxxx
Name: Xxxxxx Xxxxxx
Title: CO - CEO
54
By: /s/ Xxxxx Xxxxxxxx
Name: Xxxxx Xxxxxxxx
Title: Co Chairman
SPRINT CORPORATION
By: /s/ Xxxxxx X. XxXxx
Name: Xxxxxx X. XxXxx
Title: President and Chief Operating Officer
SPRINT GLOBAL VENTURE, INC.
By: /s/ Xxxxxx X. XxXxx
Name: Xxxxxx X. XxXxx
Title: President
GLOBAL ONE COMMUNICATIONS, L.L.C.
By: /s/ Xxxxxx Xxxx
Name: Xxxxxx Xxxx
Title: Acting CEO
GLOBAL ONE COMMUNICATIONS GBN
HOLDING, LIMITED
By: /s/ Xxxxxx Xxxx
Name: Xxxxxx Xxxx
Title: Acting CEO
55
GLOBAL ONE COMMUNICATIONS WORLD
OPERATIONS, LIMITED
By: /s/ Xxxxxx Xxxx
Name: Xxxxxx Xxxx
Title: Acting CEO
GLOBAL ONE COMMUNICATIONS WORLD
HOLDING, B.V.
By: /s/ Xxxxxx Xxxx
Name: Xxxxxx Xxxx
Title: Acting CEO
GLOBAL ONE COMMUNICATIONS WORLD
SERVICE, B.V.
By: /s/ Xxxxxx Xxxx
Name: Xxxxxx Xxxx
Title: Acting CEO
GLOBAL ONE COMMUNICATIONS EUROPE,
L.L.C.
By: /s/ Xxxxxx Xxxx
Name: Xxxxxx Xxxx
Title: Acting CEO
GLOBAL ONE COMMUNICATIONS HOLDING,
B.V.
By: /s/ Xxxxxx Xxxx
Name: Xxxxxx Xxxx
Title: Acting CEO
56
GLOBAL ONE COMMUNICATIONS SERVICE,
B.V.
By: /s/ Xxxxxx Xxxx
Name: Xxxxxx Xxxx
Title: Acting CEO
GLOBAL ONE COMMUNICATIONS
OPERATIONS, LIMITED
By: /s/ Xxxxxx Xxxx
Name: Xxxxxx Xxxx
Title: Acting CEO
ANNEX B
MODIFICATIONS TO THE JOINT VENTURE AGREEMENT
1. This Agreement will not be deemed to be an Operative
Agreement under the JVA or this Agreement.
2. Section 15.14(a)(i) is hereby deleted in its entirety;
provided, however, that upon such time that the Purchase
Provisions are terminated pursuant to Article IX hereof,
such Section shall be reinstated.
3. New Section 10.8 and Section 10.9 shall be added as follows:
"Section 10.8. Inapplicable to Sprint. Notwithstanding
anything else in this Agreement, from and after January 21,
2000, (a) this Article 10 shall not apply to Sprint or any
of its Affiliates, (b) neither Sprint nor any of its
Affiliates shall have any obligation under this Article 10,
(c) neither Sprint nor any of its Affiliates will have any
right to enforce the provisions in this Article 10, and (d)
no Person will have any right to enforce this Article 10
against Sprint or any of its Affiliates."
"Section 10.9. Inapplicable to a withdrawing party.
Notwithstanding anything else in this Agreement, (a) this
Article 10 shall not apply to the withdrawing party
identified as such in the FT/DT Transactions (as defined in
the Master Transfer Agreement, dated January 21, 2000 (the
"MTA")) or any of its Affiliates from and after the date,
specified in the FT/DT Transition Plan (as defined in the
MTA), (b) after such date neither such withdrawing party nor
its Affiliates shall have any obligation under this Article
10, and (c) after such date, neither such withdrawing party
nor its Affiliates will have any right to enforce the
provisions in this Article 10 against FT, DT, Atlas or any
of their Affiliates."
4. The Parties hereby acknowledge and agree that the
consummation of the WorldCom Merger will not be considered a
breach of the JVA.
ANNEX D
PROXY
THIS PROXY (this "Proxy") dated as of January 21, 2000, is
entered into by France Telecom, a societe anonyme duly organized
under the laws of France ("FT"), Deutsche Telekom AG, an
Aktiengesellschaft duly organized under the laws of Germany
("DT"), NAB Nordamerika Beteiligungs Holding GmbH ("NAB"), a
limited liability company duly organized under the laws of
Germany and a wholly owned subsidiary of DT, Sprint Corporation
("Sprint"), a Kansas corporation, Xxxxxxx X. Xxxxx, the Chairman
and Chief Executive Officer of Sprint, Xxxxxx X. XxXxx, the
President and Chief Operating Officer of Sprint, Xxxxxx X.
Xxxxxx, the Executive Vice President and Chief Financial Officer
of Sprint, and J. Xxxxxxx Xxxxxx, the Executive Vice President
and General Counsel of Sprint (Xx. Xxxxx, Xx. XxXxx, Xx. Xxxxxx
and Xx. Xxxxxx, together with any successor grantee appointed
under Section 1.3, are referred to herein collectively as the
"Grantees"). FT, DT, NAB, Sprint and the Grantees are
collectively referred to herein as the "Parties."
W I T N E S S E T H:
WHEREAS, FT, DT, NAB and Sprint propose to execute on the
date hereof a Master Transfer Agreement (the "Master Transfer
Agreement") among FT, DT, NAB, Sprint, Sprint Global Venture,
Inc., Atlas Telecommunications S.A., and the JV Entities set
forth on Schedule II to the Master Transfer Agreement;
WHEREAS, FT, DT, NAB and Sprint have agreed to enter into
this Proxy pursuant to Section 5.03(a) of the Master Transfer
Agreement as a condition to Sprint's willingness to enter into
the Master Transfer Agreement; and
WHEREAS, capitalized terms used in this Proxy and not
otherwise defined in this Proxy have the respective meanings
given to such terms in the Master Transfer Agreement.
NOW, THEREFORE, in contemplation of the foregoing and in
consideration of the mutual agreements contained herein, and
intending to be legally bound hereby, the Parties agree as
follows:
1. Proxy.
D-2
1.1 Grant. As to all Subject Shares, each of FT, DT
and NAB hereby severally and not jointly appoints each of the
Grantees, or any one of them acting alone, with full power of
substitution, during the term of this Proxy, as proxy for FT, DT
and NAB, to vote the Subject Shares or cause the Subject Shares
to be voted, in the name, place and stead of FT, DT and NAB (or
any controlled Affiliate of FT or DT or any Qualified Subsidiary
that is owned by both FT and/or its controlled Affiliates and DT
and/or its controlled Affiliates to which any Subject Shares may
be transferred), at any Sprint Stockholders' Meeting (including
pursuant to any class vote required in connection therewith) or
at any adjournment or adjournments thereof:
(a) for approval and adoption of the Amended WorldCom
Merger Agreement (as it may be amended by any amendment
thereto that does not have any of the effects enumerated in
clauses (A) through (D) of Section 1.4(a) of this Proxy) and
the WorldCom Merger, unless the Sprint Board of Directors
has terminated the Amended WorldCom Merger Agreement;
(b) for approval and adoption of the FT/DT Amendments;
(c) for approval of any other matter that has been
recommended by the Sprint board of directors (other than the
disposition of assets or businesses) and that is necessary
to implement the matters set forth in the immediately
preceding clauses (a) and (b);
(d) for approval and adoption of the ESPP Amendments;
(e) against approval or adoption of any proposal made
in opposition to or competition with the WorldCom Merger and
the transactions contemplated by the Amended WorldCom Merger
Agreement that has not been approved or recommended by the
Sprint board of directors; and
(f) in the discretion of the Grantees, with respect to
any proposed adjournment or adjournments of a Sprint
Stockholders' Meeting.
1.2 Nature of Proxy. THE PROXY GRANTED BY THIS
AGREEMENT IS IRREVOCABLE (EXCEPT TO THE EXTENT PROVIDED FOR IN
SECTION 1.4 OR SECTION 2) AND COUPLED WITH AN INTEREST FOR ALL
PURPOSES OF SECTION 17-6502 OF THE KANSAS GENERAL CORPORATION
CODE.
D-3
1.3 Power of Substitution. A Grantee's appointment
hereunder shall terminate at such time as such Grantee ceases to
be an officer of Sprint, at which time the appointment pursuant
to this Proxy in favor of such Grantee shall automatically be
granted, without any further act by FT, DT, NAB or their
controlled Affiliates (including any Qualified Subsidiary that is
owned by both FT and/or its controlled Affiliates and DT and/or
its controlled Affiliates), to such Grantee=s successor officer
of Sprint and thereafter to each subsequent successor (each of
which persons shall be deemed to be a Grantee hereunder). Subject
to Section 1.4 and Section 2, at the request of Sprint or the
Grantees from time to time, each of FT, DT and NAB shall confirm,
and shall cause each of its controlled Affiliates (including any
Qualified Subsidiary that is owned by both FT and/or its
controlled Affiliates and DT and/or its controlled Affiliates)
holding any Subject Shares, to confirm, the appointment of each
successor officer of Sprint as a Grantee for all purposes under
this Proxy.
1.4 Termination; Condition Precedent. This Proxy shall
terminate and be of no further force and effect on April 30,
2001. It is a condition precedent to the effectiveness of this
Proxy as it relates to the matters set forth in Section 1.1(a),
Section 1.1(c) (to the extent relating to Section 1.1(a)) and
Section 1.1(e) that the Amended WorldCom Merger Agreement shall
have been duly authorized by the boards of directors of WorldCom
and Sprint and shall have been duly executed and delivered by the
parties thereto. In addition, this Proxy shall terminate and be
of no further force and effect with respect to the matters set
forth in Section 1.1(a), Section 1.1(c) (to the extent relating
to Section 1.1(a)), Section 1.1(e) and Section 1.1(f) (to the
extent relating to Section 1.1(a), Section 1.1(c) (to the extent
relating to Section 1.1(a)) and Section 1.1(e)) immediately upon
the occurrence of either of the following events:
(a) if at any time the Original WorldCom Merger
Agreement shall not be in full force and effect as
executed on October 4, 1999, as amended by the Amended
WorldCom Merger Agreement (when so executed and
delivered), and without any further amendment or
modification to the Amended WorldCom Merger Agreement
that (A) reduces the amount or changes the nature of
the consideration to be received by FT, DT or their
Affiliates in the WorldCom Merger; (B) conflicts with
the rights of FT, DT or their Affiliates under the
Master Transfer Agreement; (C) otherwise materially and
adversely affects FT, DT or their Affiliates; or (D)
treats FT or DT or their Affiliates in a manner
D-4
different from other Sprint stockholders which is
adverse to FT, DT or their Affiliates; or
(b) if at any time the Consent and Assumption is not
in full force and effect in all material respects.
In the event of the transfer of any Subject Shares
(including the Existing FT Shares and the Existing NAB Shares)
after the Effective Time of the FT/DT Investment Changes to a
Person that is not FT, DT or a controlled Affiliate of FT or DT,
the provisions of this Proxy, with respect to such transferred
Subject Shares, shall terminate at the time of such transfer, but
this Proxy shall continue to be applicable to all other Subject
Shares that have not been so transferred.
Notwithstanding the foregoing, unless earlier
terminated in accordance with the provisions hereof, this Proxy
shall terminate and be of no further force or effect with respect
to the matters set forth in Section 1.1(a), Section 1.1(c) (to
the extent relating to Section 1.1(a)) and Section 1.1(e) on the
earlier of (I) the termination of the Amended WorldCom Merger
Agreement and (II) the later of (X) December 31, 2000 and (Y) the
earlier of (A) December 31, 2001 and (B) the time that the Sprint
stockholders have voted on the Amended WorldCom Merger Agreement
at a Sprint Stockholders' Meeting (whether or not the WorldCom
Merger is in fact approved at that time). The provisions of this
Proxy shall terminate and be of no further force and effect with
respect to Section 1.1(d) immediately after the Sprint
stockholders have voted upon the ESPP Amendments (whether or not
the ESPP Amendments are in fact approved at that time).
2. Notice of Termination Event. The Grantees covenant and
agree not to vote, and Sprint covenants and agrees not to permit
the Grantees to vote, any of the Subject Shares except in
compliance with the provisions of the Proxy, including, without
limitation, Section 1.4. Sprint covenants and agrees to take all
action necessary to cause the Grantees to comply with the
provisions of this Proxy and to prevent the Grantees from taking
any action that is not in compliance with the provisions of this
Proxy. Sprint covenants and agrees that it shall promptly notify
FT, DT, NAB and the Grantees if at any time Sprint reasonably
believes any of the circumstances specified in Section 1.4 has
occurred and in such instance shall not permit the Grantees to
vote the Subject Shares. In addition, if at any time any of FT,
DT or NAB believes, in such Party's reasonable good faith
judgment, that any of the circumstances specified in Section 1.4
has occurred, such Party shall be entitled to so notify Sprint
and the other Parties in writing and, following such notification
D-5
to Sprint, the Parties shall seek to reach an agreement as to the
application of the provisions of Section 1.4; provided, however,
that if, at the time of a Sprint Stockholders' Meeting, the
Parties have not reached such an agreement to permit the Grantees
to vote such Subject Shares but Sprint and the Grantees
reasonably believe in good faith that such Subject Shares may be
voted pursuant to this Proxy at such Sprint Stockholders'
Meeting, the Grantees may proceed to vote such Subject Shares at
such Sprint Stockholders' Meeting (without prejudice to the
provisions of the next sentence of this Section 2), unless a
judicial determination has been made by the United States
District Court for the Southern District of New York or, in the
event (but only in the event) that such court does not have
subject matter jurisdiction, a court of the State of New York
located in the Borough of Manhattan, that has not been reversed
on appeal, that prohibits the Grantees from doing so.
Notwithstanding any of the foregoing, absent a final judicial
determination on the merits concerning the right of the Grantees
to vote Subject Shares at such Sprint Stockholders= Meeting
pursuant to this Proxy, the operation of the provisions of this
Section 2 (including the proviso to the preceding sentence) shall
not prejudice the right of a Party to claim that a breach of the
provisions of this Proxy has occurred. The Parties agree that
notice by FT, DT or NAB to Sprint pursuant to this Section shall
constitute notice to each of the Grantees, and the Grantees agree
not to vote any of the Subject Shares pursuant to this Proxy once
Sprint has instructed them not to do so pursuant to this Section
2.
3. Specific Performance. The Parties agree that
irreparable damage would occur in the event that any part of this
Proxy is not performed strictly in accordance with the terms
hereof and that the Parties shall, to the extent permitted by
applicable Law, be entitled to seek from the United States
District Court for the Southern District of New York or, in the
event (but only in the event) that such court does not have
subject matter jurisdiction, in the courts of the State of New
York located in the Borough of Manhattan, specific performance of
the terms hereof, in addition to any other remedy at Law or
equity.
D-6
4. Miscellaneous.
4.1 Any Party to this Proxy may (i) extend the time
for the performance of any of the obligations or other acts of
the other Parties or (ii) waive compliance with any of the
agreements or conditions of the other Parties contained herein.
Any such extension or waiver shall be valid only if set forth in
writing signed by the Party to be bound thereby. Any waiver of
any term or condition shall not be construed as a waiver of any
subsequent breach or a subsequent waiver of the same term or
condition, or a waiver of any other term or condition, of this
Proxy. The failure of any Party to assert any of its rights
hereunder shall not constitute a waiver of any of such rights.
4.2 All notices, requests, claims, demands and other
communications hereunder shall be in writing, in English, and
shall be given or made by delivery in person, by courier service,
by telecopy, by e-mail or by registered or certified mail
(postage prepaid, return receipt requested) to the respective
Parties at the addresses specified in, and in accordance with,
Section 10.03 of the Master Transfer Agreement. Notice to Sprint
shall constitute notice to all of the Grantees. All such notices
shall be deemed to have been duly given or made upon receipt;
provided, however, that a notice sent via telecopy or e-mail
shall only be deemed to have been duly given or made on the date
that the sender thereof confirms it via courier service or by
registered or certified mail (return receipt requested).
4.3 The descriptive headings contained in this Proxy
are for convenience of reference only and shall not affect in any
way the meaning or interpretation of this Proxy.
4.4 If any term or other provision of this Proxy is
invalid, illegal or incapable of being enforced by any Law or
public policy, all other terms and provisions of this Proxy shall
nevertheless remain in full force and effect so long as the
economic or legal substance of the transactions contemplated
hereby is not affected in any manner materially adverse to any
Party (but in no event shall any Grantee be permitted to vote any
Subject Shares in violation of Section 1.4 or Section 2). Upon
such determination that any term or other provision is invalid,
illegal or incapable of being enforced, the Parties shall
negotiate in good faith to modify this Proxy so as to effect the
original intent of the Parties as closely as possible in an
acceptable manner in order that the transactions contemplated
hereby are consummated as originally contemplated.
D-7
4.5 Except as set forth in Sections 1.1 and 1.3 (in
each case, as to power of substitution), this Proxy may not be
assigned by any Party without the prior written consent of all
other Parties.
4.6 This Proxy may not be amended or modified except
by an instrument in writing signed by the Parties or by a waiver
in accordance with Section 4.1.
4.7 This Proxy shall be governed by and construed in
accordance with the internal laws of the State of New York
(except that the Laws of the State of Kansas shall govern any
such matters contained in or relating to this Proxy which are
required to be governed by Kansas corporate law). All disputes,
actions or proceedings arising out of or relating to this Proxy,
or any of the transactions contemplated hereby, shall be brought
only in the United States District Court for the Southern
District of New York or, in the event (but only in the event)
that such court does not have subject matter jurisdiction over
such dispute, action or proceeding, in the courts of the State of
New York located in the Borough of Manhattan. Each Party (i)
consents to submit itself to the personal jurisdiction of each of
the aforesaid courts and (ii) agrees that it will not bring any
action, suit or proceeding arising out of or relating to this
Proxy in any court other than as set forth above.
4.8 Each of FT, DT and NAB agrees that, to the extent
that it or any of its property is or becomes entitled at any time
to any immunity on the grounds of sovereignty or otherwise based
upon its status as an agency or instrumentality of government
from any legal action, suit or proceeding or from setoff or
counterclaim relating to this Proxy from the jurisdiction of any
competent court, from service of process, from attachment prior
to judgment, from attachment in aid of execution of a judgment,
from execution pursuant to a judgment or arbitral award, or from
any other legal process in any jurisdiction, it, for itself and
its property expressly, irrevocably and unconditionally waives,
and agrees not to plead or claim, any such immunity with respect
to such matters arising with respect to this Proxy or the subject
matter hereof (including any obligation for the payment of
money). Each of FT, DT and NAB agrees that the waiver in this
provision is irrevocable and is not subject to withdrawal in any
jurisdiction or under any statute, including the Foreign
Sovereign Immunities Act, 28 U.S.C. ' 1602 et seq. The foregoing
waiver shall constitute a present waiver of immunity at any time
any action is initiated against FT, DT or NAB with respect to
this Agreement.
D-8
4.9 This Proxy, the Master Transfer Agreement and the
agreements referred to in the Master Transfer Agreement
constitute the entire agreement of the Parties with respect to
the subject matter hereof and supersede all prior agreements and
undertakings, both written and oral, among the Parties with
respect to the subject matter hereof.
4.10 This Proxy shall be binding upon and inure solely
to the benefit of the Parties and their respective successors and
permitted assigns, and nothing herein, express or implied, is
intended to or shall confer upon any other Person any legal or
equitable right, benefit or remedy of any nature whatsoever under
or by reason of this Proxy.
4.11 This Proxy may be executed and delivered
(including by facsimile transmission) in one or more
counterparts, and by the different Parties hereto in separate
counterparts, each of which when executed shall be deemed to be
an original but all of which taken together shall constitute one
and the same agreement.
4.12 Each of FT, DT and NAB will, from time to time,
execute and deliver, or cause to be executed and delivered, such
additional or further documents and take such further action as
any of the Grantees or Sprint may reasonably request and are
necessary for the purpose of carrying out the purpose of this
Proxy.
D-9
IN WITNESS WHEREOF, the Parties have caused this Proxy
to be duly executed as of the day and year first above written.
FRANCE TELECOM S.A.
By:________________________________
Name:
Title:
DEUTSCHE TELEKOM AG
By:________________________________
Name:
Title:
NAB NORDAMERIKA BETEILIGUNGS
HOLDING GMBH
By:________________________________
Name:
Title:
By:________________________________
Name:
Title:
SPRINT CORPORATION
By:________________________________
Name:
Title:
GRANTEES:
___________________________________
Name: Xxxxxxx X. Xxxxx
D-10
___________________________________
Name: Xxxxxx X. XxXxx
___________________________________
Name: Xxxxxx X. Xxxxxx
___________________________________
Name: J. Xxxxxxx Xxxxxx
The Schedules and certain Annexes referenced in the table of contents in the
Master Transfer Agreement have been omitted for purposes of this filing, but
will be furnished supplementally to the Securities and Exchange Commission
upon request.
