EXHIBIT 1.1
Sprint Corporation
__________ Shares/1/
PCS Common Stock--Series 1
($1.00 par value)
Form of U.S. Underwriting Agreement
Xxx Xxxx, Xxx Xxxx
, 0000
Xxxxxxx Xxxxxx Read LLC
Xxxxxxx Xxxxx Xxxxxx Inc.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
Xxxxxxxxx, Lufkin & Xxxxxxxx Securities Corporation
Xxxxxx Brothers Inc.
X.X. Xxxxxx Securities Inc.
As U.S. Representatives of the several
U.S. Underwriters,
c/o Warburg Dillon Read LLC
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
and
Xxxxxxx Xxxxx Xxxxxx Inc.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Sprint Corporation, a corporation organized under the laws of Kansas
(the "Company"), proposes to issue and sell to the several underwriters named in
Schedule I hereto (the "U.S. Underwriters"), for whom you (the "U.S.
Representatives") are acting as representatives, __________ shares of PCS Common
Stock--Series 1, $1.00 par value ("Common Stock"), of the Company (said shares
to be issued and sold by the Company being hereinafter called the "U.S.
Underwritten Securities"). The Company also proposes to grant to the U.S.
Underwriters an option to purchase up to _________ additional shares of Common
Stock to cover over-allotments (the "U.S. Option Securities" and, together with
the U.S. Underwritten Securities, the "U.S. Securities"). It is understood that
the Company is concurrently entering into an International Underwriting
Agreement dated the date hereof (the "International Underwriting Agreement" and,
together with this Underwriting Agreement, the
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/1/ Plus an option to purchase from the Company up to _________ additional
U.S. Securities to cover over-allotments.
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"Underwriting Agreements") providing for the sale by the Company to the several
International Underwriters of an aggregate of _________ shares of Common Stock
(said shares to be sold by the Company pursuant to the International
Underwriting Agreement being hereinafter called the "International Underwritten
Securities") and providing for the grant to the International Underwriters of an
option to purchase from the Company up to _______ additional shares of Common
Stock (the "International Option Securities"). It is further understood and
agreed that the International Underwriters and the U.S. Underwriters have
entered into an Agreement Between U.S. Underwriters and International
Underwriters dated the date hereof (the "Agreement Between U.S. Underwriters and
International Underwriters"), pursuant to which, among other things, the
International Underwriters may purchase from the U.S. Underwriters a portion of
the U.S. Securities to be sold pursuant to this U.S. Underwriting Agreement and
the U.S. Underwriters may purchase from the International Underwriters a portion
of the International Securities to be sold pursuant to the International
Underwriting Agreement. To the extent there are no additional U.S. Underwriters
listed on Schedule I other than you, the term U.S. Representatives as used
herein shall mean you, as U.S. Underwriters, and the terms U.S. Representatives
and U.S. Underwriters shall mean either the singular or plural as the context
requires. The use of the neuter in this U.S. Underwriting Agreement shall
include the feminine and masculine wherever appropriate. Any reference herein to
the Registration Statement, any Preliminary Prospectuses or the Prospectuses
shall be deemed to refer to and include the documents incorporated by reference
therein pursuant to Item 12 of Form S-3 which were filed under the Exchange Act
on or before the Effective Date of the Registration Statement or the issue date
of such Preliminary Prospectuses or the Prospectuses, as the case may be; and
any reference herein to the terms "amend", "amendment" or "supplement" with
respect to the Registration Statement, any Preliminary Prospectuses or the
Prospectuses shall be deemed to refer to and include the filing of any document
under the Exchange Act after the Effective Date of the Registration Statement or
the issue date of any Preliminary Prospectuses or the Prospectuses, as the case
may be, deemed to be incorporated therein by reference. Certain terms used in
this U.S. Underwriting Agreement are defined in Section 19.
1. Representations and Warranties.
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(i) The Company represents and warrants to, and agrees with, each
U.S. Underwriter as set forth below in this Section 1.
(a) The Company meets the requirements for use of Form S-3 under the
Act for purposes of the Registration Statement and has prepared and filed
with the Commission a registration statement (file number 333-64241) on
Form S-3, including related preliminary prospectuses, for registration
under the Act of the offering and sale of the Securities. The Company may
have filed one or more amendments thereto, and may have used preliminary
prospectuses, each of which has previously been furnished to you. The
Company will next file with the Commission one of the following: either (1)
prior to the Effective Date of such registration statement, a further
amendment to such registration statement (including the form of final
prospectuses) or (2) after the Effective Date of such registration
statement, the Prospectuses in accordance with Rules 430A and 424(b). In
the case of clause (2), the Company has included in such registration
statement, as amended at the Effective Date, all information (other than
Rule 430A Information) required by the Act and the rules thereunder to be
included in such registration statement and the Prospectuses. As filed,
such amendment and form of final prospectuses, or such registration
statement and Prospectuses, shall contain or be deemed to contain
information
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(including, in the case of clause (2), Rule 430A Information)
required by the Act and the rules thereunder to be included in such
registration statement and Prospectuses, and, except to the extent the U.S.
Representatives shall agree in writing to a modification, shall be in all
substantive respects in the form furnished to you prior to the Execution
Time or, to the extent not completed at the Execution Time, shall contain
only such specific additional information and other changes (beyond that
contained in the latest Preliminary Prospectuses) as the Company has
advised you, prior to the Execution Time, will be included or made therein.
It is understood that two forms of prospectuses are to be used in
connection with the offering and sale of the Securities: one form of
prospectus relating to the U.S. Securities, which are to be offered and
sold to United States and Canadian Persons, and one form of prospectus
relating to the International Securities, which are to be offered and sold
to persons other than United States and Canadian Persons. The U.S.
Prospectus and the International Prospectus are identical except for the
outside front cover page and the outside back cover page.
(b) On the Effective Date, the Registration Statement did or will,
and when the Prospectuses are first filed (if required) in accordance with
Rule 424(b) and on the Closing Date (as defined herein) and on any date on
which Option Securities are purchased, if such date is not the Closing Date
(a "settlement date"), each Prospectus (and any supplements thereto) will,
comply in all material respects with the applicable requirements of the Act
and the Exchange Act and the respective rules thereunder; on the Effective
Date and at the Execution Time, the Registration Statement did not or will
not contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary in order to make
the statements therein not misleading; and, on the Effective Date, each
Prospectus, if not filed pursuant to Rule 424(b), will not, and on the date
of any filing pursuant to Rule 424(b) and on the Closing Date and any
settlement date, each Prospectus (together with any supplement thereto)
will not, include any untrue statement of a material fact or omit to state
a material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading;
provided, however, that the Company makes no representations or warranties
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as to the information contained in or omitted from the Registration
Statement or the Prospectuses (or any supplement thereto) in reliance upon
and in conformity with information furnished in writing to the Company by
or on behalf of any Underwriter through the Representatives specifically
for inclusion in the Registration Statement or the Prospectuses (or any
supplement thereto).
(c) Each of the Company and the PCS Companies has been duly
incorporated or otherwise organized and is validly existing as a
corporation, limited liability company, or partnership, as the case may be,
in good standing under the laws of the jurisdiction in which it is
chartered or organized with full corporate, limited liability company, or
partnership power and authority to own or lease, as the case may be, and to
operate its properties and conduct its business as described in the
Prospectuses, and is duly qualified to do business as a foreign
corporation, limited liability company, or partnership and is in good
standing under the laws of each jurisdiction where the nature of its
properties or the conduct of its business requires such qualification,
except where the failure to so qualify does not have a Material Adverse
Effect.
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(d) All the outstanding shares of capital stock or ownership
interests of each Material Subsidiary and PCS Company have been duly and
validly authorized and issued and are fully paid and nonassessable, and,
except as otherwise set forth or incorporated by reference in the
Prospectuses, all outstanding shares of capital stock or ownership
interests of such subsidiaries are owned by the Company either directly or
through wholly owned subsidiaries free and clear of any perfected security
interest or any other security interests, claims, liens or encumbrances.
(e) The Company's authorized equity capitalization is as set forth in
the Prospectuses; the capital stock of the Company which is described in
the Prospectuses conforms in all material respects to the description
thereof contained in the Prospectuses; the outstanding shares of Common
Stock have been duly and validly authorized and issued and are fully paid
and nonassessable; the Securities have been duly and validly authorized
and, when issued and delivered to and paid for by the U.S. Underwriters
pursuant to the U.S. Underwriting Agreement and by the International
Underwriters pursuant to the International Underwriting Agreement, will be
fully paid and nonassessable, the Securities are duly listed, and admitted
and authorized for trading, subject to official notice of issuance and
evidence of satisfactory distribution, on the New York Stock Exchange; the
certificates for the Securities are in valid and sufficient form; the
holders of outstanding shares of capital stock of the Company are not
entitled to preemptive or other rights to subscribe for the Securities;
and, except as set forth in the Prospectuses or as issued pursuant to
employee or director benefit plans described or incorporated by reference
in the Prospectuses, no options, warrants or other rights to purchase,
agreements or other obligations to issue, or rights to convert any
obligations into or exchange any securities for, shares of capital stock of
or ownership interests in the Company or the PCS Companies are outstanding.
(f) There is no franchise, contract or other document or any legal or
governmental proceedings of a character required to be described in the
Registration Statement or the Prospectuses, or to be filed as an exhibit
thereto, which is not described or filed as required; and the statements in
the Prospectuses under the headings "Certain Federal Income Tax
Consequences", "Business of the PCS Group--Regulation" and "--Legal
Proceedings" fairly summarize the matters therein described.
(g) Each of this U.S. Underwriting Agreement and the International
Underwriting Agreement has been duly authorized, executed and delivered by
the Company and constitutes a valid and binding obligation of the Company
enforceable in accordance with its terms.
(h) The Company is not and, after giving effect to the offering and
sale of the Securities and the application of the proceeds thereof as
described in the Prospectuses, will not be an "investment company" as
defined in the Investment Company Act of 1940, as amended.
(i) No consent, approval, authorization, filing with or order of any
court or governmental agency or body is required in connection with the
transactions contemplated in the Underwriting Agreements, except such as
have been obtained under the Act and such as may be required under the blue
sky or securities laws of any jurisdiction in connection with the purchase
and distribution of the Securities by the Underwriters in the manner
contemplated in the Underwriting Agreements and in the Prospectuses.
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(j) Neither the issue and sale of the Securities hereunder and under
the International Underwriting Agreement nor the consummation of any other
of the transactions herein or therein contemplated nor the fulfillment of
the terms hereof or thereof will conflict with, result in a breach or
violation or imposition of any lien, charge or encumbrance upon any
property or assets of the Company or any of its subsidiaries pursuant to,
(i) the charter or by-laws of the Company or any of its Material
Subsidiaries, (ii) the terms of any indenture, contract, lease, mortgage,
deed of trust, note agreement, loan agreement or other agreement,
obligation, condition, covenant or instrument to which the Company or any
of its subsidiaries is a party or bound or to which its or their property
is subject or (iii) any statute, law, rule, regulation, judgment, order or
decree applicable to the Company or any of its subsidiaries of any court,
regulatory body, administrative agency, governmental body, arbitrator or
other authority having jurisdiction over the Company or any of its
subsidiaries or any of their properties except, as to (ii) and (iii), for
such conflicts, breaches, violations or impositions that could not
reasonably be expected to have a Material Adverse Effect.
(k) No holder of securities of the Company has rights to the
registration of such securities under the Registration Statement.
(l) No action, suit or proceeding by or before any court or
governmental agency, authority or body or any arbitrator involving the
Company or any of its subsidiaries or its or their property is pending or,
to the best knowledge of the Company, threatened that (i) could reasonably
be expected to have a material adverse effect on the performance of this
U.S. Underwriting Agreement or the International Underwriting Agreement or
the consummation of any of the transactions contemplated hereby or thereby
or (ii) could reasonably be expected to have a material adverse effect on
the condition (financial or otherwise), prospects, earnings, business or
properties of the Company and its subsidiaries, taken as a whole, or the
PCS Group, whether or not arising from transactions in the ordinary course
of business, except, in the case of this clause (ii), as set forth in or
contemplated in the Prospectuses (exclusive of any supplement thereto).
(m) Neither the Company nor any of its Material Subsidiaries is in
violation or default of (i) any provision of its charter or bylaws, (ii)
the terms of any indenture, contract, lease, mortgage, deed of trust, note
agreement, loan agreement or other agreement, obligation, condition,
covenant or instrument to which it is a party or bound or to which its
property is subject, or (iii) any statute, law, rule, regulation, judgment,
order or decree of any court, regulatory body, administrative agency,
governmental body, arbitrator or other authority having jurisdiction over
the Company or such subsidiary or any of its properties, as applicable,
except in the case of clauses (ii) and (iii) of this paragraph, as could
not reasonably be expected to have a Material Adverse Effect.
(n) The Company and its subsidiaries possess all material licenses,
certificates, permits and other authorizations issued by the appropriate
federal, state or foreign regulatory authorities necessary to conduct their
respective businesses, and neither the Company nor any such subsidiary has
received any notice of proceedings relating to the revocation or
modification of any such certificate, authorization or permit which, singly
or in the aggregate, if the subject of an unfavorable decision, ruling or
finding, would have a material adverse effect on the condition (financial
or otherwise),
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prospects, earnings, business or properties of the Company and its
subsidiaries, taken as a whole, or the PCS Group, whether or not arising
from transactions in the ordinary course of business, except as set forth
in or contemplated in the Prospectuses (exclusive of any supplement
thereto).
(o) The Company has not taken, directly or indirectly, any action
designed to result, or which has constituted, or which might reasonably be
expected to cause or result, under the Exchange Act or otherwise, in,
stabilization or manipulation of the price of any security of the Company
to facilitate the sale or resale of the Securities.
Any certificate signed by any officer of the Company and delivered to
the Representatives or counsel for the Underwriters in connection with the
offering of the Securities shall be deemed a representation and warranty by
the Company, as to matters covered thereby, to each Underwriter.
2. Purchase and Sale. (a) Subject to the terms and conditions and
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in reliance upon the representations and warranties herein set forth, the
Company agrees to sell to each U.S. Underwriter, and each U.S. Underwriter
agrees, severally and not jointly, to purchase from the Company, at a purchase
price of $ [bold] per share, the amount of the U.S. Underwritten
Securities set forth opposite such U.S. Underwriter's name in Schedule I hereto.
(b) Subject to the terms and conditions and in reliance upon the
representations and warranties set forth herein, the Company hereby grants an
option to the several U.S. Underwriters to purchase, severally and not jointly,
an aggregate of up to ______ U.S. Option Securities at the same purchase
price per share as the U.S. Underwriters shall pay for the U.S. Underwritten
Securities. Said option may be exercised only to cover over-allotments in the
sale of the Underwritten Securities by the Underwriters. Said option may be
exercised in whole or in part at any time (but not more than once) on or before
the 30th day after the date of the U.S. Prospectus upon written or telegraphic
notice by the U.S. Representatives to the Company setting forth the number of
shares of the U.S. Option Securities as to which the several U.S. Underwriters
are exercising the option and the settlement date. The number of shares of U.S.
Option Securities to be purchased by each U.S. Underwriter shall be the same
percentage of the total number of shares of the U.S. Option Securities to be
purchased by the several U.S. Underwriters as such U.S. Underwriter is
purchasing of the U.S. Underwritten Securities, subject to such adjustments as
you in your absolute discretion shall make to eliminate any fractional shares.
3. Delivery and Payment. Delivery of and payment for the U.S.
---------------------
Underwritten Securities and the U.S. Option Securities (if the option provided
for in Section 2(b) hereof shall have been exercised on or before the third
Business Day prior to the Closing Date) shall be made at 10:00 AM, New York City
time, on ______ , 1999, or at such time on such later date not more than
three Business Days after the foregoing date as the U.S. Representatives and the
International Representatives shall designate, which date and time may be
postponed by agreement among the U.S. Representatives, the International
Representatives and the Company or as provided in Section 9 hereof (such date
and time of delivery and payment for the U.S. Securities being herein called the
"Closing Date"). Delivery of the U.S. Securities shall be made to the U.S.
Representatives for the respective accounts of the several U.S. Underwriters
against payment by the several U.S. Underwriters through the U.S.
Representatives of the purchase price thereof to or upon the order of the
Company by wire transfer payable in same-day funds to an account specified by
the Company. Delivery of the U.S. Underwritten Securities and the U.S. Option
Securities shall be made through the
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facilities of The Depository Trust Company unless the U.S. Representatives shall
otherwise instruct.
If the option provided for in Section 2(b) hereof is exercised after
the third Business Day prior to the Closing Date, the Company will deliver the
U.S. Option Securities (at the expense of the Company) to the U.S.
Representatives, at 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx on the date specified by
the U.S. Representatives (which shall be at least three Business Days after
exercise of said option) for the respective accounts of the several U.S.
Underwriters, against payment by the several U.S. Underwriters through the U.S.
Representatives of the purchase price thereof to or upon the order of the
Company by wire transfer payable in same-day funds to an account specified by
the Company. If settlement for the U.S. Option Securities occurs after the
Closing Date, the Company will deliver to the U.S. Representatives on the
settlement date for the U.S. Option Securities, and the obligation of the U.S.
Underwriters to purchase the U.S. Option Securities shall be conditioned upon
receipt of, supplemental opinions, certificates and letters confirming as of
such date the opinions, certificates and letters delivered on the Closing Date
pursuant to Section 6 hereof.
It is understood and agreed that the Closing Date shall occur
simultaneously with the "Closing Date" under the International Underwriting
Agreement, and that the settlement date, if any, shall occur simultaneously with
the "settlement date" under the International Underwriting Agreement.
4. Offering by Underwriters. It is understood that the several U.S.
-------------------------
Underwriters propose to offer the U.S. Securities for sale to the public as set
forth in the U.S. Prospectus.
5. Agreements.
-----------
(i) The Company agrees with the several U.S. Underwriters that:
(a) The Company will use its best efforts to cause the Registration
Statement, if not effective at the Execution Time, and any amendment
thereof, to become effective. Prior to the termination of the offering of
the Securities, the Company will not file (other than, subject to Section
5(i)(f) hereof, the filing of any prospectus or preliminary prospectus
relating to an offering of Securities covered by this Agreement or the
filing of any document required to be filed under the Exchange Act that
upon filing is deemed to be incorporated by reference in the Registration
Statement or the Prospectuses) any amendment of the Registration Statement
or supplement to the Prospectuses or any Rule 462(b) Registration Statement
unless the Company has furnished you a copy for your review prior to filing
and will not file any such proposed amendment or supplement to which you
reasonably object. During such time the Company will not file any document
required to be filed under the Exchange Act that upon filing is deemed to
be incorporated by reference in the Registration Statement or the
Prospectuses unless the Company has furnished to your counsel a copy for
their review and comment a reasonable amount of time prior to filing, which
comments the Company shall review in good faith. Subject to the foregoing
sentence, if the Registration Statement has become or becomes effective
pursuant to Rule 430A, or filing of the Prospectuses is otherwise required
under Rule 424(b), the Company will cause the Prospectuses, properly
completed, and any supplement thereto to be filed with the Commission
pursuant to the applicable paragraph of Rule 424(b) within the time period
prescribed and will provide evidence satisfactory
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to the U.S. Representatives of such timely filing. The Company will
promptly advise the U.S. Representatives (1) when the Registration
Statement, if not effective at the Execution Time, shall have become
effective, (2) when the Prospectuses, and any supplement thereto, shall
have been filed (if required) with the Commission pursuant to Rule 424(b)
or when any Rule 462(b) Registration Statement shall have been filed with
the Commission, (3) when, prior to termination of the offering of the
Securities, any amendment to the Registration Statement shall have been
filed or become effective, (4) of any request by the Commission or its
staff for any amendment of the Registration Statement, or any Rule 462(b)
Registration Statement, or for any supplement to the Prospectuses or for
any additional information, (5) of the issuance by the Commission of any
stop order suspending the effectiveness of the Registration Statement or
the institution or threatening of any proceeding for that purpose and (6)
of the receipt by the Company of any notification with respect to the
suspension of the qualification of the Securities for sale in any
jurisdiction or the institution or threatening of any proceeding for such
purpose. The Company will use its best efforts to prevent the issuance of
any such stop order or the suspension of any such qualification and, if
issued, to obtain as soon as possible the withdrawal thereof.
(b) If, at any time when a prospectus relating to the Securities is
required to be delivered under the Act, any event occurs as a result of
which either of the Prospectuses as then supplemented would include any
untrue statement of a material fact or omit to state any material fact
necessary to make the statements therein in the light of the circumstances
under which they were made not misleading, or if it shall be necessary to
amend the Registration Statement or supplement either of the Prospectuses
to comply with the applicable provisions of the Act or the Exchange Act or
the respective rules thereunder, the Company promptly will (1) notify the
U.S. Representatives of any such event; (2) prepare and file with the
Commission, subject to the second and third sentences of paragraph (i)(a)
of this Section 5, an amendment or supplement which will correct such
statement or omission or effect such compliance; and (3) supply any
supplemented Prospectuses to you in such quantities as you may reasonably
request.
(c) As soon as practicable, the Company will make generally available
to its security holders and to the U.S. Representatives an earnings
statement which will satisfy the provisions of Section 11(a) of the Act and
Rule 158 under the Act.
(d) The Company will furnish to the U.S. Representatives and counsel
for the U.S. Underwriters copies of the signed Registration Statement
(including exhibits thereto) and to each other U.S. Underwriter a copy of
the Registration Statement (without exhibits thereto) and, so long as
delivery of a prospectus by an U.S. Underwriter or dealer may be required
by the Act, as many copies of each U.S. Preliminary Prospectus and the U.S.
Prospectus and any supplement thereto as the U.S. Representatives may
reasonably request.
(e) The Company will cooperate with you and with counsel for the
Underwriters in connection with the qualification of the Securities for
sale under the laws of such jurisdictions as the U.S. Representatives may
designate and will take such actions as are necessary to maintain such
qualifications in effect so long as required for the distribution of the
U.S. Securities; provided that in no event shall the Company be obligated
to qualify to do business in any jurisdiction where it is not now so
qualified or to take any action that would subject it to service of process
in suits,
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other than those arising out of the offering or sale of the Securities, in
any jurisdiction where it is not now so subject.
(f) The Company will not, without the prior written consent of
Xxxxxxx Xxxxx Xxxxxx Inc. or Warburg Dillon Read LLC, for a period of 90
days following the Execution Time, offer, sell, contract to sell, pledge or
otherwise dispose of (or enter into any transaction which is designed to
result in the disposition (whether by actual disposition or effective
economic disposition due to cash settlement or otherwise) by the Company or
any affiliate of the Company or any person in privity with the Company or
any affiliate of the Company) directly or indirectly, or register, cause to
be registered or announce the registration, offering or intended
registration or offering of, any other shares of PCS Stock or any
securities convertible into or exercisable or exchangeable for shares of
PCS Stock, or grant any options or warrants to purchase shares of PCS
Stock, except (i) grants of options to purchase PCS Stock and issuances of
PCS Stock pursuant to any employee or director benefit plan, including
stock option and stock purchase plans, and registrations in connection with
such grants or issuances, (ii) issuances of PCS Stock pursuant to any
dividend reinvestment plan, (iii) issuances of PCS Stock upon conversion of
securities or exercise of warrants outstanding on the Closing Date which
are or become convertible into or exercisable for shares of PCS Stock, (iv)
issuances of PCS Stock in acquisitions or mergers, (v) registrations of PCS
Stock for, or issuances of PCS Stock to, the Cable Parents, FT and DT in
connection with the Offerings or upon any exercise of their respective
Equity Purchase Rights or registration rights, (vi) issuances of PCS Stock
pursuant to Sprint's Rights Plan, (vii) issuances, or registrations, of
shares of PCS Stock which are issuable to FT, DT or third parties in
respect of the shares of the Company's Class A Common Stock held by FT and
DT at the Execution Time and (viii) issuances of PCS Stock in connection
with strategic or other significant investments in which the purchaser
agrees to be bound for any remaining portion of such 90-day period on the
above terms.
(g) The Company will not take, directly or indirectly, any action
designed to result in or which has constituted, or which might reasonably
be expected to cause or result, under the Exchange Act or otherwise, in,
stabilization or manipulation of the price of any security of the Company
to facilitate the sale or resale of the Securities.
(h) The Company agrees to pay the costs and expenses relating to the
following matters: (i) the preparation, printing or reproduction and
filing with the Commission of the Registration Statement (including
financial statements and exhibits thereto), each Preliminary Prospectus,
each Prospectus, and each amendment or supplement to any of them; (ii) the
printing (or reproduction) and delivery (including postage, air freight
charges and charges for counting and packaging) of such copies of the
Registration Statement, each Preliminary Prospectus, each Prospectus, and
all amendments or supplements to any of them, as may, in each case, be
reasonably requested for use in connection with the offering and sale of
the Securities; (iii) the preparation, printing, authentication, issuance
and delivery of certificates for the Securities, including any stamp or
transfer taxes in connection with the original issuance and sale of the
Securities; (iv) the printing (or reproduction) and delivery of this U.S.
Underwriting Agreement and the International Underwriting Agreement, any
blue sky memorandum and all other agreements or documents printed (or
reproduced) and delivered in connection with the offering of the
Securities; (v) the registration of the Securities under the Exchange Act
and the listing of the Securities on the New York Stock Exchange; (vi) any
registration or qualification of the Securities for offer and sale under
the securities or blue sky laws of the several states (including
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filing fees and the reasonable fees and expenses of counsel for the
Underwriters relating to such registration and qualification); (vii) any
filings required to be made with the National Association of Securities
Dealers, Inc. (including filing fees and the reasonable fees and expenses
of counsel for the Underwriters relating to such filings); (viii) the
transportation and other expenses incurred by or on behalf of Company
representatives but not including representatives of the Underwriters in
connection with presentations to prospective purchasers of the Securities;
(ix) the fees and expenses of the Company's accountants and the fees and
expenses of counsel (including local and special counsel) for the Company;
and (x) all other costs and expenses incident to the performance by the
Company of its obligations under the Underwriting Agreements.
(i) The Company will use its best efforts to cause the Securities to
be listed on the New York Stock Exchange.
(ii) Each U.S. Underwriter agrees that (a) it is not purchasing any
of the U.S. Securities for the account of anyone other than a United States or
Canadian Person, (b) it has not offered or sold, and will not offer or sell,
directly or indirectly, any of the U.S. Securities or distribute any U.S.
Prospectus to any person outside the United States or Canada, or to anyone other
than a United States or Canadian Person, and (c) any dealer to whom it may sell
any of the U.S. Securities will represent that it is not purchasing for the
account of anyone other than a United States or Canadian Person and agree that
it will not offer or resell, directly or indirectly, any of the U.S. Securities
outside the United States or Canada, or to anyone other than a United States or
Canadian Person or to any other dealer who does not so represent and agree;
provided, however, that the foregoing shall not restrict (1) purchases and sales
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between the International Underwriters on the one hand and the U.S. Underwriters
on the other hand pursuant to the Agreement Between U.S. Underwriters and
International Underwriters, (2) stabilization transactions contemplated under
the Agreement Between U.S. Underwriters and International Underwriters,
conducted through Xxxxxxx Xxxxx Xxxxxx Inc. and Warburg Dillon Read LLC (or
through the U.S. Representatives and International Representatives) as part of
the distribution of the Securities, and (3) sales to or through (or
distributions of U.S. Prospectuses or U.S. Preliminary Prospectuses to) United
States or Canadian Persons who are investment advisors, or who otherwise
exercise investment discretion, and who are purchasing for the account of anyone
other than a United States or Canadian Person.
(iii) The agreements of the U.S. Underwriters set forth in paragraph
(ii) of this Section 5 shall terminate upon the earlier of the following events:
(a) a mutual agreement of the U.S. Representatives and the
International Representatives to terminate the selling restrictions set
forth in paragraph (ii) of this Section 5 and in Section 5(ii) of the
International Underwriting Agreement; or
(b) the expiration of a period of 30 days after the Closing Date,
unless (A) the U.S. Representatives shall have given notice to the Company
and the International Representatives that the distribution of the U.S.
Securities by the U.S. Underwriters has not yet been completed, or (B) the
International Representatives shall have given notice to the Company and
the U.S. Representatives that the distribution of the International
Securities by the International Underwriters has not yet been completed. If
such notice by the U.S. Representatives or the International
Representatives is given, the agreements set forth in such paragraph (ii)
shall survive until the earlier of
11
(1) the event referred to in clause (a) of this subsection (iii) or (2) the
expiration of an additional period of 30 days from the date of any such
notice.
6. Conditions to the Obligations of the U.S. Underwriters. The
-------------------------------------------------------
obligations of the U.S. Underwriters to purchase the U.S. Underwritten
Securities and the U.S. Option Securities, as the case may be, shall be subject
to the accuracy of the representations and warranties on the part of the Company
contained herein as of the Execution Time and the Closing Date, to the accuracy
of the statements of the Company made in any certificates pursuant to the
provisions hereof, to the performance by the Company of its obligations
hereunder and to the following additional conditions:
(a) If the Registration Statement has not become effective prior to
the Execution Time, unless the U.S. Representatives and the International
Representatives agree in writing to a later time, the Registration Statement
will become effective not later than (i) 6:00 PM New York City time on the date
of determination of the public offering price, if such determination occurred at
or prior to 3:00 PM New York City time on such date or (ii) 9:30 AM on the
Business Day following the day on which the public offering price was
determined, if such determination occurred after 3:00 PM New York City time on
such date; if filing of either of the Prospectuses, or any supplement thereto,
is required pursuant to Rule 424(b), the Prospectuses, and any such supplement,
will be filed in the manner and within the time period required by Rule 424(b);
and no stop order suspending the effectiveness of the Registration Statement
shall have been issued and no proceedings for that purpose shall have been
instituted or threatened.
(b) The Company shall have requested King & Spalding, counsel for the
Company, to have furnished to the Representatives its opinion, dated the Closing
Date and addressed to the Representatives, to the effect that:
(i) the Registration Statement has become effective under the Act; any
required filing of the Prospectuses, and any supplements thereto, pursuant
to Rule 424(b) has been made in the manner and within the time period
required by Rule 424(b); to the knowledge of such counsel, no stop order
suspending the effectiveness of the Registration Statement has been issued,
no proceedings for that purpose have been instituted or threatened and the
Registration Statement and each of the Prospectuses (other than (A) the
financial statements and schedules and other accounting or statistical
information contained therein or omitted therefrom, and (B) the materials
incorporated by reference therein or omitted therefrom, other than the
Proxy Statement, as to which such counsel need express no opinion) comply
as to form in all material respects with the applicable requirements of the
Act and the Exchange Act and the respective rules thereunder; and
(ii) the Company is not and, after giving effect to the offering and
sale of the Securities and the application of the proceeds thereof as
described in the Prospectuses, will not be an "investment company" as
defined in the Investment Company Act of 1940, as amended.
In addition, such counsel shall state that although it has not undertaken,
except as otherwise indicated in such opinion, to determine independently, and
does not assume any responsibility for, the accuracy, completeness or fairness
of the statements in the Registration Statement or the Prospectuses, such
counsel has participated in the preparation of the Registration Statement and
Prospectuses (but not in the preparation of any of the materials incorporated
12
by reference therein, other than the Proxy Statement), and nothing has come to
its attention that causes it to believe that on the Effective Date the
Registration Statement contained any untrue statement of a material fact or
omitted to state any material fact required to be stated therein or necessary to
make the statements therein not misleading, or that the Prospectuses, as of
their date and on the Closing Date, contained or contain any untrue statement of
a material fact or omitted 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 (in each case other than the materials incorporated by
reference in the Registration Statement and the Prospectuses (except the Proxy
Statement), the financial statements and schedules and other accounting or
statistical information included or incorporated by reference therein, or
omitted therefrom, as to which counsel need not make any statement).
In rendering such opinion, such counsel may rely (A) as to matters involving the
application of laws of any jurisdiction other than the State of New York, the
Federal laws of the United States or the Delaware General Corporation Law, to
the extent it deems proper and specified in such opinion, upon the opinion of
other counsel of good standing whom it believes to be reliable and who are
reasonably satisfactory to counsel for the Underwriters and (B) as to matters of
fact, to the extent it deems proper, on certificates of responsible officers of
the Company or the PCS Companies and public officials. References to the
Prospectuses in this paragraph (b) include any supplements thereto at the
Closing Date.
(c) The Company shall have requested Xxx Xxxxxx, Esq., in-house
counsel for the Company, to have furnished to the Representatives such counsel's
opinion, dated the Closing Date and addressed to the Representatives, to the
effect that:
(i) each of the Company and the PCS Companies has been duly
incorporated or otherwise organized and is validly existing as a
corporation, limited liability company, or partnership, as the case may be,
in good standing under the laws of the jurisdiction in which it is
chartered or organized, with full corporate, limited liability company, or
partnership power and authority to own or lease, as the case may be, and to
operate its properties and conduct its business as described in the
Prospectuses, and is duly qualified to do business as a foreign
corporation, limited liability company or partnership and is in good
standing under the laws of each jurisdiction where the nature of its
properties or the conduct of its business requires such qualification,
except where the failure to so qualify does not have a Material Adverse
Effect;
(ii) all the outstanding shares of capital stock or ownership
interests of each PCS Company have been duly and validly authorized and
issued and are fully paid and nonassessable, and, except as otherwise set
forth or incorporated by reference in the Prospectuses, all outstanding
shares of capital stock or ownership interests of such PCS Companies are
owned by the Company either directly or through wholly owned subsidiaries
free and clear of any perfected security interest and, to the knowledge of
such counsel, after due inquiry, any other security interest, claim, lien
or encumbrance;
(iii) the Company's authorized equity capitalization is as set forth
in the Prospectuses; the capital stock of the Company conforms in all
material respects to the description thereof contained in the Prospectuses;
the outstanding shares of Common Stock have been duly and validly
authorized and issued and are fully paid and nonassessable; the Securities
have been duly and validly authorized, and, when issued and delivered to
and paid for by the U.S. Underwriters pursuant to this U.S.
13
Underwriting Agreement and by the International Underwriters pursuant to
the International Underwriting Agreement, will be fully paid and
nonassessable; and the Securities are duly listed, and admitted and
authorized for trading, subject to official notice of issuance and evidence
of satisfactory distribution, on the New York Stock Exchange; the
certificates for the Securities are in valid form; the holders of
outstanding shares of capital stock of the Company are not entitled to
preemptive or other rights to subscribe for the Securities; and, except as
set forth or incorporated by reference in the Prospectuses or as issued
pursuant to employees or director benefits plans described or incorporated
by reference in the Prospectuses, no options, warrants or other rights to
purchase, agreements or other obligations to issue, or rights to convert
any obligations into or exchange any securities for, shares of capital
stock of or ownership interests in the Company or the PCS Companies are
outstanding;
(iv) to the knowledge of such counsel, there is no pending or
threatened action, suit or proceeding by or before any court or
governmental agency, authority or body or any arbitrator involving the
Company or any of its subsidiaries or its or their property of a character
required to be disclosed in the Registration Statement which is not
adequately disclosed or incorporated by reference in the Prospectuses, and
there is no franchise, contract or other document of a character required
to be described in the Registration Statement or Prospectuses, or to be
filed as an exhibit thereto, which is not described or filed as required or
incorporated by reference therein; and the statements included or
incorporated by reference in the Prospectuses under the headings "Certain
Federal Income Tax Consequences", "Business of the PCS Group--Regulation"
and "--Legal Proceedings" fairly summarize the matters therein described;
(v) the Underwriting Agreements have been duly authorized, executed
and delivered by the Company;
(vi) no consent, approval, authorization, filing with or order of any
court or governmental agency or body is required in connection with the
transactions contemplated in the Underwriting Agreements, except such as
have been obtained under the Act and such as may be required under the blue
sky or securities laws of any jurisdiction in connection with the purchase
and distribution of the Securities by the Underwriters in the manner
contemplated in the Underwriting Agreements and in the Prospectuses and
such other approvals (specified in such opinion) as have been obtained;
(vii) neither the issue and sale of the Securities, nor the
consummation of any other of the transactions contemplated in the
Underwriting Agreements nor the fulfillment of the terms of the
Underwriting Agreements will conflict with, result in a breach or violation
of or imposition of any lien, charge or encumbrance upon any property or
assets of the Company or its subsidiaries pursuant to, (i) the charter or
by-laws of the Company or its Material Subsidiaries, (ii) the terms of any
indenture, contract, lease, mortgage, deed of trust, note agreement, loan
agreement or other agreement, obligation, condition, covenant or instrument
to which the Company or any of its subsidiaries is a party or bound or to
which its or their property is subject, or (iii) any statute, law, rule,
regulation, judgment, order or decree applicable to the Company or any of
its subsidiaries of any court, regulatory body, administrative agency,
governmental body, arbitrator or other authority having jurisdiction over
the Company or any of its subsidiaries or any of its or their properties
that is known to
14
such counsel, except, as to (ii) and (iii), for such conflicts, breaches,
violations or impositions that could not reasonably be expected to have a
Material Adverse Effect;
(viii) to the knowledge of such counsel, no holders of securities of
the Company have rights to the registration of such securities under the
Registration Statement; and
(ix) no filing with, or authorization, approval, consent, license,
order, registration, qualification or decree of, the Federal Communications
Commission (the "FCC"), is necessary or required for the due authorization,
execution or delivery by the Company of this Agreement or the International
Underwriting Agreement or for the performance by the Company of the
transactions contemplated under the Prospectuses, this Agreement or the
International Underwriting Agreement.
In addition, such counsel shall state that although such counsel has not
undertaken, except as otherwise indicated in such opinion, to determine
independently, and does not assume any responsibility for, the accuracy,
completeness or fairness of the statements in the Registration Statement or the
Prospectuses, such counsel has participated in the preparation of the
Registration Statement and the Prospectuses, including the documents
incorporated by reference therein, and nothing has come to such counsel's
attention that causes such counsel to believe that on the Effective Date the
Registration Statement contained any untrue statement of fact or omitted to
state any material fact required to be stated therein or necessary to make the
statements therein not misleading, or that the Prospectuses, as of their date
and on the Closing Date, contained or contain any untrue statement of a material
fact or omitted 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 (in each case other than the financial statements and
schedules and other accounting or statistical information included or
incorporated by reference therein, or omitted therefrom, as to which counsel
need not make any statement).
In rendering such opinion, such counsel may rely (A) as to matters involving the
application of laws of any jurisdiction other than the State of New York, the
Federal laws of the United States (except with respect to regulatory and tax
matters), the Delaware General Corporation Law or, the laws of the State of
Kansas, to the extent he deems proper and specified in such opinion (including
with respect to regulatory and tax matters), upon the opinion of other counsel
of good standing whom he believes to be reliable and who are reasonably
satisfactory to counsel for the Underwriters and (B) as to matters of fact, to
the extent he deems proper, on certificates of responsible officers of the
Company or the PCS Companies and public officials. Reference to the
Prospectuses in this paragraph (c) include any supplements thereto at the
Closing Date.
(d) The Representatives shall have received from Cravath, Swaine &
Xxxxx, counsel for the Underwriters, such opinion or opinions, dated the Closing
Date and addressed to the Representatives, with respect to the issuance and sale
of the Securities, the Registration Statement, the Prospectuses (together with
any supplement thereto) and other related matters as the Representatives may
reasonably require, and the Company shall have furnished to such counsel such
documents as they reasonably request for the purpose of enabling them to pass
upon such matters.
(e) The Company shall have furnished to the Representatives a
certificate of the Company, signed by an executive officer (meaning those
officers who file reports pursuant to Section 16(b) of the Exchange Act) and the
principal financial or accounting officer of the
15
Company, dated the Closing Date, to the effect that the signers of such
certificate have carefully examined the Registration Statement, the
Prospectuses, any supplements to the Prospectuses and the Underwriting
Agreements and that:
(i) the representations and warranties of the Company in the
Underwriting Agreements are true and correct in all material respects on
and as of the Closing Date with the same effect as if made on the Closing
Date and the Company has complied with all the agreements and satisfied all
the conditions on its part to be performed or satisfied at or prior to the
Closing Date;
(ii) no stop order suspending the effectiveness of the Registration
Statement has been issued and no proceedings for that purpose have been
instituted or, to the Company's knowledge, threatened; and
(iii) since the date of the most recent financial statements included
or incorporated by reference in the Prospectuses (exclusive of any
supplement thereto), there has been no material adverse effect on the
condition (financial or otherwise), prospects, earnings, business or
properties of the Company and its subsidiaries, taken as a whole, or the
PCS Group, whether or not arising from transactions in the ordinary course
of business, except as set forth in or contemplated in the Prospectuses
(exclusive of any supplement thereto).
(f) The Company shall have requested Ernst & Young LLP to have
furnished to the Representatives letters, dated respectively as of the Execution
Time and as of the Closing Date, in form and substance satisfactory to the
Representatives, confirming that they are independent auditors with respect to
the Company within the meaning of the Act and the Exchange Act and the
respective applicable published rules and regulations thereunder and that they
have performed a review of the unaudited interim financial information of the
Company and the PCS Group as of and for the nine-month period ended September
30, 1998, and as at September 30, 1998, in accordance with Statement on Auditing
Standards No. 71, and stating in effect that:
(i) in their opinion the audited financial statements and financial
statement schedules included or incorporated by reference in the
Registration Statement and the Prospectuses and reported on by them comply
as to form in all material respects with the applicable accounting
requirements of the Act and the Exchange Act and the related published
rules and regulations;
(ii) on the basis of a reading of the latest unaudited financial
statements made available by the Company and its subsidiaries (as defined
in the introductory paragraph hereof); their limited review, in accordance
with standards established under Statement on Auditing Standards No. 71, of
the unaudited interim financial information for the nine-month period ended
September 30, 1998, and as at September 30, 1998; carrying out certain
specified procedures (but not an examination in accordance with generally
accepted auditing standards) which would not necessarily reveal matters of
significance with respect to the comments set forth in such letter; a
reading of the minutes of the meetings of the stockholders, directors and
committees of the Company and its subsidiaries; and inquiries of certain
officials of the Company and its subsidiaries who have responsibility for
financial and accounting matters of the Company and its subsidiaries, as to
transactions and events subsequent to September 30, 1998; and a reading of
the letter from Deloitte & Touche LLP,
16
independent auditors with respect to Sprint Spectrum, to the
Representatives, nothing came to their attention which caused them to
believe that:
(1) any unaudited financial statements of the Company, the FON
Group or the PCS Group included or incorporated by reference in the
Registration Statement and the Prospectuses do not comply as to form
in all material respects with applicable accounting requirements of
the Act and with the published rules and regulations of the Commission
with respect to financial statements included or incorporated by
reference in quarterly reports on Form 10-Q under the Exchange Act;
and said unaudited financial statements are not in conformity with
generally accepted accounting principles applied on a basis
substantially consistent with that of the audited financial statements
included or incorporated by reference in the Registration Statement
and the Prospectuses;
(2) with respect to the period subsequent to September 30, 1998,
there were, at a specified date not more than five days prior to the
date of the letter, any changes in the long-term debt and construction
obligations or capital stock, or decreases in the stockholders'
equity, of the Company, or any changes in the long-term debt and
construction obligations, or any decreases in the group equity, of the
PCS Group, as compared with the amounts shown on the September 30,
1998 balance sheet for the Company or the PCS Group, as the case may
be, included or incorporated by reference in the Registration
Statement and the Prospectuses, or for the period from October 1, 1998
to such specified date there were, as compared with the corresponding
period in the immediately preceding quarter, any decreases in net
operating revenues, operating income, income from continuing
operations or net income, or increases in equity in loss of Global
One, of the Company, or any increases in operating loss or net loss of
the PCS Group, except in all instances for changes, increases or
decreases (i) resulting from the Notes Offering, the Recapitalization
or the change in accounting for Sprint Spectrum Holdings and PhillieCo
from the equity basis to the consolidated basis in connection with the
PCS Restructuring or (ii) set forth in such letter, in which case the
letter shall be accompanied by an explanation by the Company as to the
significance thereof unless said explanation is not deemed necessary
by the Representatives; and
(3) the information included or incorporated by reference in the
Registration Statement and Prospectuses in response to Regulation S-K,
Item 301 (Selected Financial Data), Item 302 (Supplementary Financial
Information), Item 402 (Executive Compensation) and Item 503(d) (Ratio
of Earnings to Fixed Charges) with respect to the Company or the PCS
Group is not in conformity with the applicable disclosure requirements
of Regulation S-K;
(iii) they have performed certain other specified procedures as a
result of which they determined that certain information of an accounting,
financial or statistical nature (which is limited to accounting, financial
or statistical information derived from the general accounting records of
the Company and its subsidiaries) set forth in the Registration Statement
and the Prospectuses, including the information included or incorporated by
reference in the Company's Annual Report on Form 10-K, Quarterly
17
Reports on Form 10-Q, Current Reports on Form 8-K and the Proxy Statement,
each of which is incorporated by reference in the Registration Statement
and the Prospectuses, and the information included in "Management's
Discussion and Analysis of Financial Condition and Results of Operations of
Sprint" and "Management's Discussion and Analysis of Financial Condition
and Results of Operations of the PCS Group" in the Prospectuses, agrees
with the accounting records of the Company and its subsidiaries, excluding
any questions of legal interpretation; and
(iv) on the basis of a reading of the unaudited pro forma financial
statements of Sprint, the PCS Group and/or the FON Group included or
incorporated by reference in the Registration Statement and the
Prospectuses (the "pro forma financial statements"); carrying out certain
specified procedures; inquiries of certain officials of the Company and its
subsidiaries who have responsibility for financial and accounting matters;
and proving the arithmetic accuracy of the application of the pro forma
adjustments to the historical amounts in the pro forma financial
statements, nothing came to their attention which caused them to believe
that such pro forma financial statements do not comply as to form in all
material respects with the applicable accounting requirements of Rule 11-02
of Regulation S-X or that the pro forma adjustments have not been properly
applied to the historical amounts in the compilation of such statements.
References to the Prospectuses in this paragraph (f) include any supplement
thereto at the date of the letter.
(g) The Company shall have requested Deloitte & Touche LLP to have
furnished to the Representatives letters, dated respectively as of the Execution
Time and as of the Closing Date, in form and substance satisfactory to the
Representatives, confirming that they are independent accountants within the
meaning of the Act and the Exchange Act and the respective applicable published
rules and regulations thereunder and that they have performed a review of the
unaudited interim financial information of Sprint Spectrum as of and for the
nine-month period ended September 30, 1998, and as at September 30, 1998, in
accordance with Statement on Auditing Standards No. 71, and stating in effect
that:
(i) in their opinion the audited financial statements and financial
statement schedules included in or incorporated by reference in the
Registration Statement and the Prospectuses and reported on by them comply
as to form in all material respects with the applicable accounting
requirements of the Act and the Exchange Act and the related published
rules and regulations;
(ii) on the basis of a reading of the latest unaudited financial
statements made available by Sprint Spectrum; their limited review, in
accordance with standards established under Statement on Auditing Standards
No. 71, of the unaudited interim financial information of Sprint Spectrum
for the nine-month period ended September 30, 1998, and as at September 30,
1998; carrying out certain specified procedures (but not an examination in
accordance with generally accepted auditing standards) which would not
necessarily reveal matters of significance with respect to the comments set
forth in such letter; a reading of the minutes of the meetings of the
partners and committees of Sprint Spectrum; and inquiries of certain
officials of Sprint Spectrum who have responsibility for financial and
accounting matters of Sprint
18
Spectrum as to transactions and events subsequent to September 30, 1998,
nothing came to their attention which caused them to believe that:
(1) any unaudited financial statements of Sprint Spectrum
included or incorporated by reference in the Registration Statement
and the Prospectuses do not comply as to form in all material respects
with applicable accounting requirements of the Act and with the
published rules and regulations of the Commission with respect to
financial statements included or incorporated by reference in
quarterly reports on Form 10-Q under the Exchange Act; and said
unaudited financial statements are not in conformity with generally
accepted accounting principles applied on a basis substantially
consistent with that of the audited financial statements included or
incorporated by reference in the Registration Statement and the
Prospectuses;
(2) with respect to the period subsequent to September 30, 1998,
there were, at a specified date not more than five days prior to the
date of the letter, any changes in the long-term debt or any decreases
in partner's capital of Sprint Spectrum as compared with the amounts
shown on the September 30, 1998 balance sheet for Sprint Spectrum
included or incorporated by reference in the Registration Statement
and the Prospectuses, or for the period from October 1, 1998 to such
specified date there were, as compared with the corresponding period
in the immediately preceding quarter, any decreases in net operating
revenues or any increases in operating loss or net loss of Sprint
Spectrum, except in all instances for changes, increases or decreases
set forth in such letter, in which case the letter shall be
accompanied by an explanation by Sprint as to the significance thereof
unless said explanation is not deemed necessary by the
Representatives; and
(3) the information included or incorporated by reference in the
Registration Statement and Prospectuses in response to Regulation S-K,
Item 301 (Selected Financial Data) and Item 302 (Supplementary
Financial Information) with respect to Sprint Spectrum is not in
conformity with the applicable disclosure requirements of Regulation
S-K; and
(iii) they have performed certain other specified procedures as a
result of which they determined that certain information of an accounting,
financial or statistical nature (which is limited to accounting, financial
or statistical information derived from the general accounting records of
Sprint Spectrum) set forth in the Registration Statement and the
Prospectuses, including the information included or incorporated by
reference in the Proxy Statement, which is incorporated by reference in the
Registration Statement and in the Prospectuses, and the information
included in "Management's Discussion and Analysis of Financial Condition
and Results of Operations of Sprint Spectrum Holdings Company Combined with
MinorCo and PhillieCo" in the Prospectuses, agrees with the accounting
records of Sprint Spectrum, excluding any questions of legal
interpretation.
References to the Prospectuses in this paragraph (g) include any supplement
thereto at the date of the letter.
(h) Subsequent to the Execution Time or, if earlier, the dates as of
which information is given in the Registration Statement (exclusive of any
amendment thereof) and
19
the Prospectuses (exclusive of any supplement thereto), there shall not have
been (i) any change, increase or decrease specified in the letter or letters
referred to in paragraph (f) or (g) of this Section 6 or (ii) any change, or any
development involving a prospective change, in or affecting the condition
(financial or otherwise), earnings, business or properties of the Company and
its subsidiaries, taken as a whole, or the PCS Group, whether or not arising
from transactions in the ordinary course of business, except as set forth in or
contemplated in the Prospectuses (exclusive of any supplement thereto) the
effect of which, in any case referred to in clause (i) or (ii) above, is, in the
sole judgment of the U.S. Representatives, so material and adverse as to make it
impractical or inadvisable to proceed with the offering or delivery of the U.S.
Securities as contemplated by the Registration Statement (exclusive of any
amendment thereof) and the U.S. Prospectus (exclusive of any supplement
thereto).
(i) Subsequent to the Execution Time, there shall not have been any
decrease in the rating of any of the Company's or Sprint Spectrum's debt
securities by any "nationally recognized statistical rating organization" (as
defined for purposes of Rule 436(g) under the Act) or any notice given of any
intended or potential decrease in any such rating or of a possible change in any
such rating that does not indicate the direction of the possible change.
(j) The Securities shall have been listed and admitted and authorized
for trading on the New York Stock Exchange, and satisfactory evidence of such
actions shall have been provided to the Representatives.
(k) At the Execution Time, the Company shall have furnished to the
Representatives a lock-up letter in form and substance satisfactory to the U.S.
Representatives from each officer for purposes of Section 16 under the Exchange
Act and director of the Company and from each member of the management of the
PCS Group listed under the caption "Management of the PCS Group" in the
Prospectus addressed to the Representatives.
(l) The closing of the purchase of the U.S. Underwritten Securities
pursuant to the U.S. Underwriting Agreement shall occur concurrently with the
closing of the International Underwritten Securities pursuant to the
International Underwriting Agreement.
(m) Prior to the Closing Date, the Company shall have furnished to
the Representatives such further information, certificates and documents as the
Representatives may reasonably request.
If any of the conditions specified in this Section 6 shall not have
been fulfilled in all material respects when and as provided in this U.S.
Underwriting Agreement, or if any of the opinions and certificates mentioned
above or elsewhere in this U.S. Underwriting Agreement shall not be in all
material respects reasonably satisfactory in form and substance to the U.S.
Representatives and counsel for the Underwriters, this U.S. Underwriting
Agreement and all obligations of the U.S. Underwriters under this U.S.
Underwriting Agreement may be canceled at, or at any time prior to, the Closing
Date by the U.S. Representatives. Notice of such cancelation shall be given to
the Company in writing or by telephone or facsimile confirmed in writing.
The documents required to be delivered by this Section 6 shall be
delivered at the office of Cravath, Swaine & Xxxxx, counsel for the
Underwriters, at 000 Xxxxxx Xxxxxx, Xxxxxxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000,
on the Closing Date.
20
7. Reimbursement of U.S. Underwriters' Expenses. If the sale of the
---------------------------------------------
U.S. Securities provided for in this U.S. Underwriting Agreement is not
consummated because any condition to the obligations of the U.S. Underwriters
set forth in Section 6 hereof is not satisfied (unless Section 6(l) is not
satisfied due to a default by an International Underwriter under Section 9 of
the International Underwriting Agreement), because of any termination pursuant
to Section 10 hereof or because of any refusal, inability or failure on the part
of the Company to perform any agreement in this U.S. Underwriting Agreement or
comply with any provision hereof other than by reason of a default by any of the
U.S. Underwriters or the International Underwriters, the Company will reimburse
the U.S. Underwriters severally through Xxxxxxx Xxxxx Barney Inc. or Warburg
Dillon Read LLC on demand for all out-of-pocket expenses (including reasonable
fees and disbursements of counsel) that shall have been incurred by them in
connection with the proposed purchase and sale of the Securities.
8. Indemnification and Contribution. (a) The Company agrees to
---------------------------------
indemnify and hold harmless each U.S. Underwriter, the directors, officers,
employees and agents of each U.S. Underwriter and each person who controls any
U.S. Underwriter within the meaning of either the Act or the Exchange Act
against any and all losses, claims, damages or liabilities, joint or several, to
which they or any of them may become subject under the Act, the Exchange Act or
other Federal or state statutory law or regulation, at common law or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon any untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement as
originally filed or in any amendment thereof, or in any U.S. or International
Preliminary Prospectus or in either of the Prospectuses, or in any amendment
thereof or supplement thereto, or arise out of or are based upon the 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 agrees to
reimburse each such indemnified party, as incurred, for any legal or other
expenses reasonably incurred by them in connection with investigating or
defending any such loss, claim, damage, liability or action; provided, however,
-------- -------
that the Company will not be liable in any such case to the extent that any such
loss, claim, damage or liability arises out of or is based upon any such untrue
statement or alleged untrue statement or omission or alleged omission made
therein in reliance upon and in conformity with written information furnished to
the Company by or on behalf of any Underwriter through the Representatives
specifically for inclusion therein. This indemnity agreement will be in
addition to any liability which the Company may otherwise have.
(b) Each U.S. Underwriter severally and not jointly agrees to
indemnify and hold harmless the Company, each of its directors and officers, and
each person who controls the Company within the meaning of either the Act or the
Exchange Act, to the same extent as the foregoing indemnity from the Company to
each U.S. Underwriter, but only with reference to written information furnished
to the Company by or on behalf of such U.S. Underwriter through the U.S.
Representatives specifically for inclusion in the documents referred to in the
foregoing indemnity. This indemnity agreement will be in addition to any
liability which any U.S. Underwriter may otherwise have. The Company
acknowledges that the statements set forth in the last paragraph of the cover
page regarding delivery of the U.S. Securities, the legend in block capital
letters on page 2 related to stabilization, syndicate covering transactions and
penalty bids and, under the heading "Underwriting", (i) the list of U.S.
Underwriters and their respective participations in the sale of the Securities,
(ii) the description of the Agreement between U.S. Underwriters and
International Underwriters, (iii) the paragraph related to offerings outside the
United States by underwriters, (iv) the sentence regarding sales in Canada, (v)
the sentences related to concessions and reallowances and (vi) the paragraph
related to stabilization, syndicate covering transactions and penalty bids in
21
any U.S. or International Preliminary Prospectus and the Prospectuses constitute
the only information furnished in writing by or on behalf of the several U.S.
Underwriters for inclusion in any U.S. or International Preliminary Prospectus
or the Prospectuses.
(c) Promptly after receipt by an indemnified party under this Section
8 of notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under this
Section 8, notify the indemnifying party in writing of the commencement thereof;
but the failure so to notify the indemnifying party (i) will not relieve it from
liability under paragraph (a) or (b) above unless and to the extent it did not
otherwise learn of such action and such failure results in the forfeiture by the
indemnifying party of substantial rights and defenses and (ii) will not, in any
event, relieve the indemnifying party from any obligations to any indemnified
party other than the indemnification obligation provided in paragraph (a) or
(b) above. The indemnifying party shall be entitled to appoint counsel of the
indemnifying party's choice at the indemnifying party's expense to represent the
indemnified party in any action for which indemnification is sought (in which
case the indemnifying party shall not thereafter be responsible for the fees and
expenses of any separate counsel retained by the indemnified party or parties
except as set forth below); provided, however, that such counsel shall be
-------- -------
reasonably satisfactory to the indemnified party. Notwithstanding the
indemnifying party's election to appoint counsel to represent the indemnified
party in an action, the indemnified party shall have the right to employ one
separate counsel (plus local counsel), and the indemnifying party shall bear the
reasonable fees, costs and expenses of such separate counsel, if (i) the use of
counsel chosen by the indemnifying party to represent the indemnified party
would present such counsel with a conflict of interest, (ii) the actual or
potential defendants in, or targets of, any such action include both the
indemnified party and the indemnifying party and the indemnified party shall
have reasonably concluded that there may be legal defenses available to it which
are different from or additional to those available to the indemnifying party,
(iii) the indemnifying party shall not have employed counsel satisfactory to the
indemnified party to represent the indemnified party within a reasonable time
after notice of the institution of such action or (iv) the indemnifying party
shall authorize the indemnified party to employ separate counsel at the expense
of the indemnifying party. An indemnifying party will not, without the prior
written consent of the indemnified parties, settle or compromise or consent to
the entry of any judgment with respect to any pending or threatened claim,
action, suit or proceeding in respect of which indemnification or contribution
may be sought under this U.S. Underwriting Agreement (whether or not the
indemnified parties are actual or potential parties to such claim or action)
unless such settlement, compromise or consent includes an unconditional release
of each indemnified party from all liability arising out of such claim, action,
suit or proceeding.
(d) In the event that the indemnity provided in paragraph (a) or (b)
of this Section 8 is unavailable to or insufficient to hold harmless an
indemnified party for any reason, the Company, and the U.S. Underwriters
severally, agree to contribute to the aggregate losses, claims, damages and
liabilities (including legal or other expenses reasonably incurred in connection
with investigating or defending same) (collectively "Losses") to which the
Company and one or more of the U.S. Underwriters may be subject in such
proportion as is appropriate to reflect the relative benefits received by the
Company on the one hand and by the U.S. Underwriters on the other from the
offering of the U.S. Securities. If the allocation provided by the immediately
preceding sentence is unavailable for any reason, the Company and the U.S.
Underwriters severally shall contribute in such proportion as is appropriate to
reflect not only such relative benefits but also the relative fault of the
Company on the one hand and of the U.S. Underwriters on the other in connection
with the statements or
22
omissions which resulted in such Losses as well as any other relevant equitable
considerations. Benefits received by the Company shall be deemed to be equal to
the total net proceeds from the offering (before deducting expenses) received by
it, and benefits received by the U.S. Underwriters shall be deemed to be equal
to the total underwriting discounts and commissions, in each case as set forth
on the cover page of the U.S. Prospectus. Relative fault shall be determined by
reference to, among other things, whether any untrue or any alleged untrue
statement of a material fact or the omission or alleged omission to state a
material fact relates to information provided by the Company on the one hand or
the U.S. Underwriters on the other, the intent of the parties and their relative
knowledge, access to information and opportunity to correct or prevent such
untrue statement or omission. The Company and the U.S. Underwriters agree that
it would not be just and equitable if contribution were determined by pro rata
allocation or any other method of allocation which does not take account of the
equitable considerations referred to above. Notwithstanding the provisions of
this paragraph (d), no person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation. For purposes of
this Section 8, each person who controls a U.S. Underwriter within the meaning
of either the Act or the Exchange Act and each director, officer, employee and
agent of a U.S. Underwriter shall have the same rights to contribution as such
U.S. Underwriter, and each person who controls the Company within the meaning of
either the Act or the Exchange Act, each officer of the Company and each
director of the Company shall have the same rights to contribution as the
Company, subject in each case to the applicable terms and conditions of this
paragraph (d).
9. Default by a U.S. Underwriter. If any one or more U.S.
------------------------------
Underwriters shall fail to purchase and pay for any of the U.S. Securities
agreed to be purchased by such U.S. Underwriter or U.S. Underwriters under this
U.S. Underwriting Agreement and such failure to purchase shall constitute a
default in the performance of its or their obligations under this U.S.
Underwriting Agreement, the remaining U.S. Underwriters shall be obligated
severally to take up and pay for (in the respective proportions which the amount
of U.S. Securities set forth opposite their names in Schedule I hereto bears to
the aggregate amount of U.S. Securities set forth opposite the names of all the
remaining U.S. Underwriters) the U.S. Securities which the defaulting U.S.
Underwriter or U.S. Underwriters agreed but failed to purchase; provided,
--------
however, that in the event that the aggregate amount of U.S. Securities which
-------
the defaulting U.S. Underwriter or U.S. Underwriters agreed but failed to
purchase shall exceed 10% of the aggregate amount of U.S. Securities set forth
in Schedule I hereto, the remaining U.S. Underwriters shall have the right to
purchase all, but shall not be under any obligation to purchase any, of the U.S.
Securities, and if such nondefaulting U.S. Underwriters do not purchase all the
U.S. Securities, this U.S. Underwriting Agreement will terminate without
liability to any nondefaulting U.S. Underwriter or the Company. In the event of
a default by any U.S. Underwriter as set forth in this Section 9, the Closing
Date shall be postponed for such period, not exceeding five Business Days, as
the U.S. Representatives shall determine in order that the required changes in
the Registration Statement and the Prospectuses or in any other documents or
arrangements may be effected. Nothing contained in this U.S. Underwriting
Agreement shall relieve any defaulting U.S. Underwriter of its liability, if
any, to the Company and any nondefaulting U.S. Underwriter for damages
occasioned by its default under this U.S. Underwriting Agreement.
10. Termination. This U.S. Underwriting Agreement shall be subject
------------
to termination in the absolute discretion of the U.S. Representatives, by notice
given to the Company prior to delivery of and payment for the U.S. Securities,
if at any time prior to such
23
time (i) trading in any class of the Company's capital stock shall have been
suspended by the Commission or the New York Stock Exchange or trading in
securities generally on the New York Stock Exchange shall have been suspended or
limited or minimum prices shall have been established on the New York Stock
Exchange, (ii) a banking moratorium shall have been declared either by Federal
or New York State authorities or (iii) there shall have occurred any outbreak or
escalation of hostilities, declaration by the United States of a national
emergency or war, or other calamity or crisis the effect of which on financial
markets is such as to make it, in the sole judgment of the U.S. Representatives,
impractical or inadvisable to proceed with the offering or delivery of the U.S.
Securities as contemplated by the U.S. Prospectus (exclusive of any supplement
thereto).
11. Representations and Indemnities to Survive. The respective
-------------------------------------------
agreements, representations, warranties, indemnities and other statements of the
Company or its officers and of the U.S. Underwriters set forth in or made
pursuant to this U.S. Underwriting Agreement will remain in full force and
effect, regardless of any investigation made by or on behalf of any U.S.
Underwriter or the Company or any of the officers, directors or controlling
persons referred to in Section 8 hereof, and will survive delivery of and
payment for the U.S. Securities. The provisions of Sections 7 and 8 hereof
shall survive the termination or cancelation of this U.S. Underwriting
Agreement.
12. Notices. All communications under this U.S. Underwriting
--------
Agreement will be in writing and effective only on receipt, and, if sent to the
U.S. Representatives, will be mailed, delivered or telefaxed to the Xxxxxxx
Xxxxx Xxxxxx Inc. General Counsel (fax no.(000) 000-0000), and the Warburg
Dillon Read LLC General Counsel (fax no. (000) 000-0000 and confirmed to such
General Counsel at Xxxxxxx Xxxxx Xxxxxx Inc., 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx,
Xxx Xxxx, 00000, Attention: General Counsel and at Warburg Dillon Read LLC, 000
Xxxx Xxxxxx, Xxx Xxxx Xxx Xxxx, 00000, Attention: General Counsel]; or, if sent
to the Company, will be mailed, delivered or telefaxed to Sprint Corporation
(fax no. (000) 000-0000) and confirmed to it at 0000 Xxxxxxx Xxxxxxx Xxxxxxx,
Xxxxxxxx, XX, 00000, attention of the Legal Department.
13. Successors. This U.S. Underwriting Agreement will inure to the
-----------
benefit of and be binding upon the parties hereto and their respective
successors and the officers and directors and controlling persons referred to in
Section 8 hereof, and no other person will have any right or obligation under
this U.S. Underwriting Agreement.
14. Applicable Law. This U.S. Underwriting Agreement will be
---------------
governed by and construed in accordance with the laws of the State of New York
applicable to contracts made and to be performed within the State of New York,
without regard to the choice of law principles of any jurisdiction.
15. Counterparts. This U.S. Underwriting Agreement may be signed in
------------
one or more counterparts, each of which shall constitute an original and all of
which together shall constitute one and the same agreement.
16. Headings. The section headings used in this U.S. Underwriting
---------
Agreement are for convenience only and shall not affect the construction hereof.
17. Third-Party Lock-Up Agreements. (a) The Company agrees to (i)
------------------------------
(A) take promptly any actions requested by the Representatives necessary to
enforce its rights under the Lock-Up Agreements and (B) not waive any right
granted to it under or
24
amend or otherwise modify any provision of the Lock-Up Agreements (unless the
Representatives consent in writing to such waiver, amendment or modification)
and (ii) promptly notify the Representatives by telephone (followed by written
notice) if the Company becomes aware that a Cable Parent, FT or DT has taken or
proposes to take any action which violates or may violate its Lock-Up Agreement.
(b) (i) Subject to the provisions of paragraph (b)(ii), the U.S.
Underwriters, severally and not jointly, shall indemnify and hold harmless the
Company and its directors, officers, employees and agents from and against any
loss, claim, damage, liability or expense, joint or several, or any action in
respect thereof to which they or any of them may become subject insofar as such
loss, claim, damage, liability, expense or action arises out of or is based on
the Company taking or refraining from taking any action required by paragraph
(a) of this section. The U.S. Underwriters shall be entitled to appoint counsel
of their choice at their expense to represent the indemnified party in any
action for which indemnification is sought (in which case the U.S. Underwriters
shall not thereafter be responsible for the fees and expenses of any separate
counsel retained by the indemnified party or parties). No indemnified party
will, without the prior consent of the U.S. Underwriters (which consent will not
be unreasonably withheld), settle or compromise or consent to the entry of any
judgment with respect to any pending or threatened claim, action, suit or
proceeding in respect of which indemnification may be sought under this section
(whether or not the indemnified parties are actual or potential parties to such
claim, action, suit or proceeding).
(ii) If and to the extent it is finally determined that any loss,
claim, damage, liability, expense or action that is otherwise the subject of
paragraph (b)(i) would not have arisen or been incurred had the Underwriters
been party to a Lock-Up Agreement (in lieu of the Company) which the
Underwriters had enforced to the same extent and by the same means that the
Company was requested to and did enforce its rights pursuant to paragraph (a),
the Underwriters shall have no obligation under paragraph (i) and the Company
shall indemnify and hold harmless each Underwriter, the directors, officers,
employees and agents of each Underwriter and each person who controls any
Underwriter within the meaning of either the Act or the Exchange Act from and
against any loss, claim, damage, liability or expense, joint or several, or any
action in respect thereof to which they or any of them may become subject
insofar as such loss, claim, damage, liability, expense or action arises out of
or is based on the Underwriters requesting the Company to take or refrain from
taking any action pursuant to paragraph (a). The Company shall be entitled to
appoint counsel of its choice at its expense to represent the indemnified party
in any action for which indemnification is sought (in which case the Company
shall not thereafter be responsible for the fees and expenses of any separate
counsel retained by the indemnified party or parties). No indemnified party
will, without the prior consent of the Company (which consent will not be
unreasonably withheld), settle or compromise or consent to the entry of any
judgment with respect to any pending or threatened claim, action, suit or
proceeding in respect of which indemnification may be sought under this section
(whether or not the indemnified parties are actual or potential parties to such
claim, action, suit or proceeding).
(iii) The determination contemplated by paragraph (ii) shall be made
by binding arbitration, upon demand by the Representatives or the Company.
Arbitration shall be conducted under and governed by the Commercial Financial
Disputes Arbitration Rules (the "Arbitration Rules") of the American Arbitration
Association and Title 9 of the U.S. Code. All arbitration hearings shall be
conducted in New York, New York. Notwithstanding anything foregoing to the
contrary, any arbitration proceeding demanded hereunder shall begin within 60
days after such demand thereof and shall be concluded within 90 days after such
demand. These time limitations may not be extended unless a party hereto shows
cause for extension and then such extension shall not exceed a total of 30 days.
The panel from which all arbitrators are selected shall be comprised of licensed
attorneys. The parties hereto do not waive any applicable Federal or state
substantive law except as provided herein.
(iv) In the event the parties cannot agree on the extent to which a
loss, claim, damage, liability, expense or action would not have arisen or
incurred had the Representatives been party to a Lock-Up Agreement (in lieu of
the Company) and exercising solely their own rights thereunder, then pending the
determination of such issue by arbitration pursuant to paragraph (iii), the
Underwriters will continue to indemnify and hold harmless the Company and other
indemnified parties pursuant to paragraph (i). If it shall subsequently be
determined that the Company was not entitled to indemnification by reason of
paragraph (ii), it shall
25
refund all amounts previously received by it or any other indemnified party and
promptly perform its obligations under paragraph (ii).
18. Miscellaneous. Warburg Dillon Read LLC, an indirect, wholly
--------------
owned subsidiary of UBS AG, is not a bank and is separate from any affiliated
bank, including any U.S. branch or agency of UBS AG. Because Warburg Dillon
Read LLC is a separately incorporated entity, it is solely responsible for its
own contractual obligations and commitments, including obligations with respect
to sales and purchases of securities. Securities sold, offered or recommended by
Warburg Dillon Read LLC are not deposits, are not guaranteed by a branch or
agency, and are not otherwise an obligation or responsibility of a branch or
agency.
A lending affiliate of Warburg Dillon Read LLC may have lending
relationships with issuers of securities underwritten or privately placed by
Warburg Dillon Read LLC. To the extent required under the securities laws,
prospectus and other disclosure documents for securities underwritten or
privately placed by Warburg Dillon Read LLC will disclose the existence of any
such lending relationships and whether the proceeds of the issue will be used to
repay debts owed to affiliates of Warburg Dillon Read LLC.
Without the Company's prior written approval, the U.S. branches and
agencies of UBS AG will not share with Warburg Dillon Read LLC any non-public
information concerning the Company, and Warburg Dillon Read LLC will not share
any non-public information received from the Company with any of such U.S.
branches and agencies of UBS AG.
19. Definitions. The terms which follow, when used in this U.S.
------------
Underwriting Agreement, shall have the meanings indicated.
"Act" shall mean the Securities Act of 1933, as amended, and the rules
and regulations of the Commission promulgated thereunder.
"Business Day" shall mean any day other than a Saturday, a Sunday or a
legal holiday or a day on which banking institutions or trust companies are
authorized or obligated by law to close in New York City.
"Cable Parents" shall mean, collectively, Tele-Communications, Inc.,
Comcast Corporation and Xxx Communications, Inc.
"Closing Date" shall mean the date referred to in Section 3 hereof.
"Commission" shall mean the Securities and Exchange Commission.
"DT" shall mean Deutsche Telekom AG.
"Effective Date" shall mean each date and time that the Registration
State ment, any post-effective amendment or amendments thereto and any
Rule 462(b) Registration Statement became or become effective.
"Equity Purchase Rights" shall have the meaning assigned thereto in
the Proxy Statement.
26
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the Commission promulgated
thereunder.
"Execution Time" shall mean the date and time that this U.S.
Underwriting Agreement is executed and delivered by the parties hereto.
"FT" shall mean France Telecom S.A.
"International Preliminary Prospectus" shall have the meaning set
forth under "U.S. Preliminary Prospectus".
"International Prospectus" shall mean such form of prospectus relating
to the International Securities as first filed pursuant to Rule 424(b)
after the Execution Time or, if no filing pursuant to Rule 424(b) is made,
such form of prospectus included in the Registration Statement at the
Effective Date.
"International Representative" shall mean the addressees of the
International Underwriting Agreement.
"International Securities" shall mean the International Underwritten
Securities and the International Option Securities.
"International Underwriters" shall mean the several underwriters named
in Schedule I to the International Underwriting Agreement.
"International Underwriting Agreement" shall mean the International
Underwriting Agreement dated the date hereof related to the sale of the
International Securities by the Company to the International Underwriters.
"Lock-Up Agreements" means the agreements by the Cable Parents and FT
and DT to refrain from selling or distributing PCS Stock and certain other
securities, as more fully set forth in Section 6.2(c) of the Restructuring
Agreement and Section 5.2(d) of the Master Agreement, respectively.
"Material Adverse Effect" shall mean a material adverse effect on (i)
the condition (financial or otherwise), prospects, earnings, business or
properties of the Company and its subsidiaries, taken as a whole or (ii)
the Company's ability to perform the transactions contemplated by this
Agreement.
"Material Subsidiary" shall mean any subsidiary of the Company that
would be a "significant subsidiary" of the Company within the meaning of
Rule 1-02 under Regulation S-X promulgated by the Commission, substituting
five percent for 10 percent in the conditions specified therein and
substituting "proportionate share of the total net revenue (after
intercompany eliminations)" for "equity in the income from continuing
operations before income taxes, extraordinary items and cumulative effect
of a change in accounting principle" and "such revenue" for "such income"
in clause (3) of such definition.
"Option Securities" shall mean the U.S. Option Securities and the
International Option Securities.
27
"PCS Companies" shall mean, collectively, Sprint Spectrum Holding
Company L.P., American PCS, L.P., MinorCo L.P., PhillieCo Partners I, L.P.,
PhillieCo Partners II, L.P., Xxx Communications PCS, L.P., SprintCom Inc.
and SprintCom Equipment Company L.P.
"PCS Group" shall have the meaning assigned thereto in the Proxy
Statement.
"PCS Restructuring" shall have the meaning assigned thereto in the
Proxy Statement.
"PCS Stock" shall mean, collectively, PCS Common Stock -- Series 1,
PCS Common Stock -- Series 2, PCS Common Stock -- Series 3 and any other
class or series of common stock that may be issued by the Company which is
intended to reflect separately the performance of the PCS Companies.
"Preliminary Prospectus" shall have the meaning set forth under "U.S.
Preliminary Prospectus" and "International Preliminary Prospectus".
"Prospectuses" and "each Prospectus" shall mean the U.S. Prospectus
and the International Prospectus.
"Proxy Statement" shall mean the Company's Proxy Statement/Prospectus
dated October 5, 1998 that forms a part of Registration Statement No. 333-
65173 on Form S-4.
"Recapitalization" shall have the meaning assigned thereto in the
Proxy Statement.
"Registration Statement" shall mean the registration statement
referred to in Section 1(i)(a) above, including exhibits and financial
statements, as amended at the Execution Time (or, if not effective at the
Execution Time, in the form in which it shall become effective) and, in the
event any post-effective amendment thereto or any Rule 462(b) Registration
Statement becomes effective prior to the Closing Date, shall also mean such
registration statement as so amended or such Rule 462(b) Registration
Statement, as the case may be. Such term shall include any Rule 430A
Information deemed to be included therein at the Effective Date as provided
by Rule 430A.
"Representatives" shall mean the U.S. Representatives and the
International Representatives.
"Restructuring Agreement" shall mean the Merger and Restructuring
Agreement dated as of May 26, 1998, among the Company, the Cable Parents
and various of their subsidiaries.
"Rule 424", "Rule 430A" and "Rule 462" refer to such rules under the
Act.
"Rule 430A Information" shall mean information with respect to the
Securities and the offering thereof permitted to be omitted from the
Registration Statement when it becomes effective pursuant to Rule 430A.
28
"Rule 462(b) Registration Statement" shall mean a registration
statement and any amendments thereto filed pursuant to Rule 462(b) relating
to the offering covered by the registration statement referred to in
Section 1(a)(i) above.
"Securities" shall mean the U.S. Securities and the International
Securities.
"Sprint Spectrum" shall mean, collectively, Sprint Spectrum Holding
Company, L.P., MinorCo L.P., PhillieCo Partners I, L.P. and PhillieCo
Partners II, L.P. and their respective subsidiaries.
"Underwriter" and "Underwriters" shall mean the U.S. Underwriters and
the International Underwriters.
"Underwriting Agreements" shall mean the U.S. Underwriting Agreement
and the International Underwriting Agreement.
"Underwritten Securities" shall mean the International Underwritten
Securities and the U.S. Underwritten Securities.
"U.S. Preliminary Prospectus" and the "International Preliminary
Prospectus", respectively, shall mean any preliminary prospectus with
respect to the offering of the U.S. Securities and the International
Securities, as the case may be, referred to in Section 1(i)(a) above and
any preliminary prospectus with respect to the offering of the U.S.
Securities and the International Securities, as the case may be, included
in the Registration Statement at the Effective Date that omits Rule 430A
Information; and the U.S. Preliminary Prospectus and the International
Preliminary Prospectus are herein collectively called the "Preliminary
Prospectuses".
"U.S. Prospectus" shall mean the prospectus relating to the U.S.
Securities that is first filed pursuant to Rule 424(b) after the Execution
Time or, if no filing pursuant to Rule 424(b) is required, shall mean the
form of final prospectus relating to the U.S. Securities included in the
Registration Statement at the Effective Date.
"U.S. Representatives" shall mean the addressees of this U.S.
Underwriting Agreement.
"U.S. Securities" shall mean the U.S. Underwritten Securities and the
U.S. Option Securities.
"U.S. Underwriters" shall mean the several underwriters named in
Schedule I to this U.S. Underwriting Agreement.
"U.S. Underwriting Agreement" shall mean this agreement relating to
the sale of the U.S. Securities by the Company to the U.S. Underwriters.
"United States or Canadian Person" shall mean any person who is a
national or resident of the United States or Canada, any corporation,
partnership, or other entity created or organized in or under the laws of
the United States or Canada or of any political subdivision thereof, or any
estate or trust the income of which is subject to United States or Canadian
Federal income taxation, regardless of its source (other than any non-
United States or non-Canadian branch of any United States or Canadian
29
Person), and shall include any United States or Canadian branch of a person
other than a United States or Canadian Person. "U.S." or "United States"
shall mean the United States of America (including the states thereof and
the District of Columbia), its territories, its possessions and other areas
subject to its jurisdiction.
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof, whereupon
this U.S. Underwriting Agreement and your acceptance shall represent a binding
agreement between the Company and the several U.S. Underwriters.
Very truly yours,
Sprint Corporation
By:
-------------------------------------
Name:
Title:
The foregoing Agreement is hereby
confirmed and accepted as of the
date first above written.
Warburg Dillon Read LLC
Xxxxxxx Xxxxx Xxxxxx Inc.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
Xxxxxxxxx, Lufkin & Xxxxxxxx Securities Corporation
Xxxxxx Brothers Inc.
X.X. Xxxxxx Securities Inc.
By: Warburg Dillon Read LLC
By: ............................
Name:
Title:
By: Xxxxxxx Xxxxx Xxxxxx Inc.
By: ............................
Name:
Title:
For themselves and the other
several U.S. Underwriters
named in Schedule I to the foregoing
Agreement.
SCHEDULE I
----------
Number of
Underwritten
Securities to be
Underwriters Purchased
------------- ----------------
Warburg Dillon Read LLC
Xxxxxxx Xxxxx Xxxxxx Inc.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
Xxxxxxxxx, Lufkin & Xxxxxxxx Securities Inc.
Xxxxxx Brothers Inc.
XX Xxxxxx Securities Inc.
---------------
Total....................................
---------------
