IRREVOCABLE PROXY
AND
VOTING AGREEMENT
THIS IRREVOCABLE PROXY AND VOTING AGREEMENT (this "Agreement"),
dated as of November 23, 1998, is entered into between SPRINT CORPORATION,
a Kansas corporation ("Sprint"), and COMCAST CORPORATION, a Pennsylvania
corporation (the "Holder").
WHEREAS, Sprint, Tele-Communications, Inc., a Delaware corporation
("TCI"), the Holder, and Xxx Communications, Inc., a Delaware corporation
("Cox", and together with TCI and the Holder, the "Cable Holders") and certain
of their respective Subsidiaries (as defined herein) have entered into the
Restructuring and Merger Agreement, dated May 26, 1998 (the "Restructuring
Agreement"), pursuant to which such Cable Holders (directly or indirectly
through Subsidiaries) will acquire shares of Series 2 PCS Stock (as defined
herein) on the terms set forth in the Restructuring Agreement;
WHEREAS, contemporaneously with the execution of this Agreement,
Sprint and the Holder have entered into a Standstill Agreement, dated May
26, 1998 (the "Standstill Agreement") imposing certain restrictions on the
ability of the Holder and its Affiliates to acquire shares of Series 1 PCS
Stock (as defined herein) and other shares of the capital stock of Sprint;
WHEREAS, Section 6.8 of the Restructuring Agreement permits the Holder
and its Affiliates to acquire shares of Series 1 PCS Stock under certain
circumstances, which acquisitions are permitted under the Standstill Agreement;
WHEREAS, each share of Series 2 PCS Stock has one-tenth of the
vote of each share of Series 1 PCS Stock in all matters presented for a
vote of the holders of the common stock of Sprint;
WHEREAS, Sprint is willing to permit the Holder and its Affiliates
to acquire shares of the Series 1 PCS Stock in accordance with the
Restructuring Agreement; based on the arrangements set forth herein
(including the granting by the Holder of the irrevocable proxy contained
herein);
NOW THEREFORE, in consideration of the premises and the
representations, warranties, covenants and agreements contained herein, and
for other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the Holder and Sprint (each a "Party"),
intending to be legally bound, hereby agree as follows:
Section 1. Irrevocable Proxy.
(a) Subject to paragraphs (c), (d) and (e) below, the
Holder hereby grants to Xxxxxxx X. Xxxxx (the "Grantee") an irrevocable
proxy, with full power of substitution, to exercise voting authority and
authority to act by written consent over all shares of Series 1 PCS Stock
Beneficially Owned by the Holder and its Affiliates, at the time of
execution of this Agreement or at any time in the future (the "Proxy
Shares"), on all matters submitted to a vote of all or any class or classes
of the holders of the Sprint Voting Securities, which proxy is irrevocable
and coupled with an interest for purposes of Section 17-6502 of the Kansas
General Corporation Code.
(b) Prior to the acquisition by any Affiliate of Holder
that has not previously executed and delivered to Sprint an Irrevocable
Proxy under this paragraph of any shares of Series 1 PCS Stock, the Holder
will cause such Affiliate to execute and deliver to Sprint the form of
Irrevocable Proxy attached hereto as Exhibit A, which proxies shall
(together with the proxy contained in Section 1 (a)) be deemed to
constitute the "Proxy" for the purposes of this Proxy Agreement.
(c) Pursuant to the Proxy, the Grantee is authorized and
directed to vote the Proxy Shares for or against any matter presented for a
vote of the Sprint Voting Securities in the same manner as the majority of
votes that are cast with respect to such matter by the holders of Sprint
Voting Securities (other than the Proxy Shares).
(d) Notwithstanding the foregoing, the Proxy shall not be
applicable with respect to any of the Proxy Shares in connection with any
matter on which the holders of Series 1 PCS Stock vote pursuant to Article
Sixth, Sections 3.2(d) and 3.2(f) of the Initial Charter Amendment (as
defined in the Restructuring Agreement) or any successor provisions with
the same effect, and the Holder shall have the power to vote the Proxy
Shares in its discretion with respect to any such matter.
(e) The Grantee's appointment hereunder shall terminate
at such time as the Grantee ceases to be the Chief Executive Officer of
Sprint, at which time the Proxy shall automatically be granted, without any
further act by the Holder or its Affiliates, to the Grantee's successor as
Chief Executive Officer of Sprint and thereafter to each subsequent
successor as the Chief Executive Officer of Sprint (each of which persons
shall be deemed the Grantee hereunder). At the request of Sprint from
time-to-time, the Holder shall, and shall cause each of its Affiliates
holding any Proxy Shares to, execute an irrevocable proxy in the form of
this Agreement or Exhibit A hereto confirming the appointment of each
successor Chief Executive Officer of Sprint as the Grantee for all purposes
under this Agreement.
(f) Within 10 days following the record date for each
meeting of the shareholders of Sprint, the Holder shall give notice to
Sprint of (i) the names of the Affiliates of the Holder that Beneficially
Owned shares of Series 1 PCS Stock as of the record date and (ii) the
number of shares of Series 1 PCS Stock Beneficially Owned by the Holder and
each of its Affiliates as of the record date.
Section 2. Voting Agreement. If the Proxy is determined to be
invalid or unenforceable in any respect, or the holder of the Proxy is
unable or unwilling for any reason to vote the Proxy Shares at any meeting
of the stockholders of Sprint as contemplated by Section 1 (c), then,
except in the case of a matter described in Section 1 (d), the Holder
shall, and shall cause each of its Affiliates to, attend each meeting of
the stockholders of Sprint for the purposes of satisfying quorum
requirements and shall vote the Proxy Shares for or against any matter
presented for a vote of the Sprint Voting Securities in the same manner as
the majority of votes that are cast with respect to such matter by the
holders of Sprint Voting Securities (other than the Proxy Shares).
Section 3. Termination. The Proxy and this Agreement shall
terminate on the earlier to occur of (a) the consent in writing of Sprint
and the Holder, (b) the termination of the Standstill Agreement and (c) the
tenth anniversary of this Agreement.
Section 4. Certain Definitions. As used in this Agreement, the
following terms shall have the meanings specified below. Any capitalized
terms not otherwise defined herein shall have the meaning attributed
thereto in the Restructuring Agreement.
"Affiliate" means with respect to any Person, any other Person that
directly, or indirectly through one or more intermediaries, Controls or is
Controlled by, or is under common Control with, such Person.
"Agreement" has the meaning set forth in the Preamble.
"Beneficial Owner " (including, with its correlative meanings,
"Beneficially Own" and "Beneficial Ownership"), with respect to any securities,
means any Person which:
(a) has, or any of whose Affiliates has, directly or
indirectly, the sole or shared right to acquire (whether such right is
exercisable immediately or only after the passage of time) such securities
pursuant to any agreement, arrangement or understanding (whether or not in
writing), including pursuant to the Restructuring Agreement, or upon the
exercise of conversion rights, exchange rights, warrants or options, or
otherwise;
(b) has, or any of whose Affiliates has, directly or
indirectly, the sole or shared right to vote or dispose of (whether such right
is exercisable immediately or only after the passage of time) or "beneficial
ownership" of (as determined pursuant to Rule 13d-3 under the Exchange Act as in
effect on the date hereof but including all such securities which a Person has
the right to acquire beneficial ownership of, whether or not such right is
exercisable within the 60-day period specified therein) such securities,
including pursuant to any agreement, arrangement or understanding (whether or
not in writing); or
(c) has, or any of whose Affiliates has, any agreement,
arrangement or understanding (whether or not in writing) for the purpose of
acquiring, holding, voting or disposing of any securities which are Beneficially
Owned, directly or indirectly, by any other Person (or any Affiliate thereof),
provided that the Restructuring Agreement shall not be deemed an agreement,
arrangement or understanding contemplated by this paragraph (c).
"Cable Holders" has the meaning set forth in the Recitals.
"Class A Stock" means the Class A Common Stock, par value $2.50
per share, of Sprint.
"Common Stock" means the Common Stock, par value $2.50 per share,
of Sprint.
"Control" (including, with its correlative meanings, "Controlled
by" and "under common Control with") means, with respect to a Person or
Group:
(a) ownership by such Person or Group of Votes entitling it to
exercise in the aggregate more than 50 percent of the Voting Power of the entity
in question; or
(b) possession by such Person or Group of the power, directly
or indirectly, (i) to elect a majority of the board of directors (or equivalent
governing body) of the entity in question; (ii) to direct or cause the direction
of the management and policies of or with respect to the entity in question,
whether through ownership of securities, by contract or otherwise; or (iii) with
respect to a particular action or agreement, to direct or cause the direction of
decisions, or veto or otherwise prevent decisions, of or with respect to the
entity in question relating to such action or agreement.
"PCS Preferred Stock" means the Preferred Stock -- Seventh
Series, Convertible, no par value, of Sprint.
"PCS Stock" means the Series 1 PCS Stock, the Series 2 PCS Stock
and the Series 3 PCS Stock.
"Person" means an individual, a partnership, an association, a joint
venture, a corporation, a business, a trust, an unincorporated organization, a
governmental authority or any other entity organized under applicable law.
"Restructuring Agreement" has the meaning set forth in the Recitals.
"Series 1 PCS Stock" means the PCS Common Stock -- Series 1, par value
S1.00 per share, of Sprint, which will be created on the Closing Date by the
filing of the Initial Charter Amendment, as defined in the Restructuring
Agreement.
"Series 2 PCS Stock" means the PCS Common Stock -- Series 2, par value
$1.00 per share, of Sprint, which will be created on the Closing Date by the
filing of the Initial Charter Amendment.
"Series 3 PCS Stock" means the PCS Common Stock -- Series 3, par value
$1.00 per share, of Sprint, which will be created on the Closing Date by the
filing of the Initial Charter Amendment.
"FON Stock" means the Sprint FON Group Common Stock that will be
created upon completion of the Recapitalization, as defined in the
Restructuring Agreement.
"Sprint Voting Securities" means the Common Stock, the Class A
Stock, the FON Stock, the PCS Stock, the PCS Preferred Stock and any other
securities of Sprint having the right to Vote.
"Subsidiary" means, with respect to any Person (the "Parent"),
any other Person in which the Parent, one or more Subsidiaries of the
Parent, or the Parent and one or more of its Subsidiaries (a) have the
ability, through ownership of securities individually or as a group,
ordinarily, in the absence of contingencies, to elect a majority of the
directors (or individuals performing similar functions) of such other
Person, and (b) own more than 50% of the equity interests.
"Transfer" means any act pursuant to which, directly or
indirectly, the ownership of assets or securities in question is sold,
transferred, conveyed, delivered or otherwise disposed of.
"Vote" means, as to any entity, the ability to cast a vote at a
stockholders' or comparable meeting of such entity with respect to the
election of directors or other members of such entity's governing body;
provided that with respect to Sprint only, "Vote" means the ability to
exercise general voting power (as opposed to the exercise of special voting
or disapproval rights) with respect to matters other than the election of
directors at a meeting of the stockholders of Sprint.
"Voting Power" means, as to any entity as of any date, the
aggregate number of Votes outstanding as of such date in respect of such
entity; provided that, with respect to PCS Stock, the Vote per share used
to calculate such aggregate number of Votes shall be the Vote per share
most recently established by the Board of Directors of Sprint, whether for
the most recent vote of stockholders or for a vote of stockholders to be
conducted in the future.
Section 5. Interpretation and Construction of this Agreement. The
definitions in Section 4 shall apply equally to both the singular and plural
forms of the terms defined. Whenever the context may require, any pronoun shall
include the corresponding masculine, feminine and neuter forms. The words
"include," "includes" and "including" shall be deemed to be followed by the
phrase "without limitation." All references herein to Articles, Sections and
Exhibits shall be deemed to be references to Articles and Sections of, and
Exhibits to, this Agreement unless the context shall otherwise require.
The headings of the Articles and Sections are inserted for convenience of
reference only and are not intended to be a part of or to affect the
meaning or interpretation of this Agreement. Unless the context shall
otherwise require or provide, any reference to any agreement or other
instrument or statute or regulation is to such agreement, instrument,
statute or regulation as amended and supplemented from time to time (and,
in the case of a statute or regulation, to any successor provision).
Section 6. Notices. Except as expressly provided herein, all notices,
consents, waivers and other communications required or permitted to be given by
any provision of this Agreement shall be in writing and mailed (certified or
registered mail, postage prepaid, return receipt requested) or sent by hand or
overnight courier, or by facsimile transmission (with acknowledgment received
and confirmation sent as provided below), charges prepaid and addressed to the
intended recipient as follows, or to such other address or number as such Person
may from time to time specify by like notice to the parties:
Holder: Comcast Corporation
0000 Xxxxxx Xxxxxx
Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000-0000
Telecopy: (000) 000-0000
Attention: General Counsel
with a copy to:
Xxxxx Xxxx & Xxxxxxxx
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopy: (000) 000-0000
Attention: Xxxxxx X. Xxxxxx
Sprint:
Sprint Corporation
2330 Shawnee Mission Parkway
East Wing
Westwood, Kansas 66205
Attention: General Counsel
Tel: (000) 000-0000
Fax: (000) 000-0000
with a copy to:
King & Spalding
000 Xxxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxx X. Xxxxxxxxx, Esq.
Tel: (000) 000-0000
Fax: (000) 000-0000
Any party may from time to time specify a different address for notices by like
notice to the other parties. All notices and other communications given in
accordance with the provisions of this Agreement shall be deemed to have been
given and received (i) four (4) Business Days after the same are sent by
certified or registered mail, postage prepaid, return receipt requested, (ii)
when delivered by hand or transmitted by facsimile (with acknowledgment received
and, in the case of a facsimile only, a copy of such notice is sent no later
than the next Business Day by a reliable overnight courier service, with
acknowledgment of receipt) or (iii) one (1) Business Day after the same are sent
by a reliable overnight courier service, with acknowledgment of receipt.
Section 7. Assignment. No Party will assign this Agreement or any
rights, interests or obligations hereunder, or delegate performance of any of
its obligations hereunder, without the prior written consent of each other
Party.
Section 8. Entire Agreement. This Agreement (together with the
Standstill Agreement and the Restructuring Agreement) embodies the entire
agreement and understanding of the Parties with respect to the subject matter
contained herein, provided that this provision shall not abrogate any other
written agreement between the Parties executed simultaneously with this
Agreement.
Section 9. Waiver, Amendment. etc. This Agreement may not be amended or
supplemented, and no waivers of or consents to departures from the provisions
hereof shall be effective, unless set forth in a writing signed by, and
delivered to, all the Parties. No failure or delay of any Party in exercising
any power or right under this Agreement will operate as a waiver thereof, nor
will any single or partial exercise of any right or power, or any abandonment or
discontinuance of steps to enforce such right or power, preclude any other or
further exercise thereof or the exercise of any other right or power.
Section 10. Binding Agreement; No Third Party Beneficiaries. This
Agreement will be binding upon and inure to the benefit of the Parties and their
successors and permitted assigns. Nothing expressed or implied herein is
intended or will be construed to confer upon or to give to any third party
any rights or remedies by virtue hereof.
Section 11. Governing Law; Equitable Relief.
(a) THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF KANSAS (REGARDLESS OF THE LAWS THAT
MIGHT OTHERWISE GOVERN UNDER APPLICABLE PRINCIPLES OF CONFLICTS OF LAW).
(B) EACH PARTY AGREES THAT MONEY DAMAGES WOULD NOT BE A
SUFFICIENT REMEDY FOR THE OTHER PARTIES FOR ANY BREACH OF THIS AGREEMENT BY IT,
AND THAT IN ADDITION TO ALL OTHER REMEDIES THE OTHER PARTIES MAY HAVE, THEY
SHALL BE ENTITLED TO SPECIFIC PERFORMANCE AND TO INJUNCTIVE OR OTHER EQUITABLE
RELIEF AS A REMEDY FOR ANY SUCH BREACH. EACH PARTY AGREES NOT TO OPPOSE THE
GRANTING OF SUCH RELIEF IN THE EVENT A COURT DETERMINES THAT SUCH BREACH HAS
OCCURRED, AND AGREES TO WAIVE ANY REQUIREMENT FOR THE SECURING OR POSTING OF ANY
BOND IN CONNECTION WITH SUCH REMEDY.
Section 12. Severability. The invalidity or unenforceability of any
provision hereof in any jurisdiction will not affect the validity or
enforceability of the remainder hereof in that jurisdiction or the validity or
enforceability of this Agreement, including that provision, in any other
jurisdiction. To the extent permitted by applicable law, each Party waives any
provision of applicable law that renders any provision hereof prohibited or
unenforceable in any respect. If any provision of this Agreement is held to be
unenforceable for any reason, it shall be adjusted rather than voided, if
possible, in order to achieve the intent of the Parties to the extent possible.
Section 13. Counterparts. This Agreement may be executed in one or
more counterparts each of which when so executed and delivered will be deemed an
original but all of which will constitute one and the same Agreement.
Section 14. Remedies. In addition to any other remedies which may be
available to Sprint (including any remedies which Sprint may have at law or in
equity), if the Holder or any of its Affiliates breaches any material provision
of this Agreement or the Proxy, neither the Holder nor such Affiliates shall be
entitled to vote any of its shares of capital stock of Sprint (or any shares
into which such shares of capital stock are converted) with respect to any
matter or proposal arising from, relating to or involving such breach, and no
such purported vote by the Holder or any of its Affiliates on such matter shall
be effective or shall be counted.
IN WITNESS WHEREOF, Sprint and the Holder have caused their respective
duly authorized officers to execute this Irrevocable Proxy and Voting Agreement
as of the day and year first above written.
COMCAST CORPORATION
By: /s/ Xxxxxx X. Block
------------------------------------
Name: Xxxxxx X. Block
Title: Vice President
SPRINT CORPORATION
By: /s/ Xxx X. Xxxxxx
------------------------------------
Name:
Title:
IN WITNESS WHEREOF, Sprint and the Holder have caused their respective
duly authorized officers to execute this Irrevocable Proxy and Voting Agreement
as of the day and year first above written.
COMCAST CORPORATION
By:
------------------------------------
Name:
Title:
SPRINT CORPORATION
By:
------------------------------------
Name: Xxx X. Xxxxxx
Title: Vice President and Secretary
EXHIBIT A
IRREVOCABLE PROXY
_______________, a __________________ [corporation/
partnership/limited liability company] hereby grants to __________________
[insert name of chief executive officer of Sprint] an irrevocable proxy,
with full power of substitution, to exercise voting authority and authority
to act by written consent over all shares of the Series 1 PCS Group Common
Stock, par value $1.00, of Sprint Corporation ("Sprint") Beneficially
Owned by the Holder, at the time of execution and delivery of this proxy or
at any time in the future (the "Proxy Shares"), on all matters submitted to
a vote of all or any class or classes of the holders of Sprint Voting
Securities. This proxy is granted pursuant to the terms of the Irrevocable
Proxy and Voting Agreement (the "Voting Agreement"), dated as of
_____________ , 1998, between Sprint and _____________, a _____________
corporation, and this proxy is irrevocable and coupled with an interest for
purposes of Section 17-6502 of the Kansas General Corporation Code. This
proxy is given under and subject to the terms and limitations of the Voting
Agreement (including, without limitation, Sections I (c), I (d) and I (e)
thereof) and shall terminate simultaneously with the termination of the
Voting Agreement pursuant to Section 3 thereof. Capitalized terms utilized
but not defined in this proxy shall have the meaning ascribed thereto in
the Voting Agreement.
IN WITNESS WHEREOF, the undersigned has caused its duly authorized
officer to execute and deliver this Irrevocable Proxy as of the _____day of
_________, ___.
[HOLDER]
By:
------------------------------------
Name:
Title:
