Exhibit 4.2
AMENDED AND RESTATED STANDSTILL AGREEMENT
THIS AMENDED AND RESTATED STANDSTILL AGREEMENT (this
"Agreement") dated as of _________, 1998 by and among SPRINT
CORPORATION, a corporation formed under the laws of Kansas
("Sprint"), FRANCE TELECOM S.A., a societe anonyme formed
under the laws of France ("FT"), and DEUTSCHE TELEKOM AG, an
Aktiengesellschaft formed under the laws of Germany ("DT");
R E C I T A L S
WHEREAS, Sprint, FT and DT entered into an Investment
Agreement dated as of July 31, 1995, as amended (the
"Investment Agreement"), pursuant to which FT and DT
purchased shares of capital stock of Sprint;
WHEREAS, as a condition to Sprint's entering into the
Investment Agreement, Sprint, FT and DT entered into a
Standstill Agreement dated as of July 31, 1995, which
agreement was amended on June 24, 1997 (as so amended, the
"Original Standstill Agreement");
WHEREAS, Sprint, FT and DT entered into a Master
Restructuring and Investment Agreement dated as of May 26,
1998, (the "FT/DT Restructuring Agreement"), which
contemplates, among other things, the purchase by FT and DT
of shares of PCS Common Stock -- Series 3, par value $1.00
per share, of Sprint;
WHEREAS, as a condition precedent to and in
consideration of the transactions contemplated in the FT/DT
Restructuring Agreement, Sprint, FT and DT are required to
enter into this Agreement and in reliance thereon Sprint, FT
and DT have entered into the FT/DT Restructuring Agreement;
NOW, THEREFORE, in consideration of these premises and
the covenants and agreements contained herein, and for other
good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, each of FT, DT and Sprint
(each a "Party" and collectively the "Parties"), intending
to be legally bound, hereby agree that the Original
Standstill Agreement is hereby amended and restated in its
entirety as follows:
ARTICLE 1.
DEFINITIONS AND CONSTRUCTION
Section 1.1. Certain Definitions. As used in this
Agreement, the following terms shall have the meanings
specified below:
"Acquisition Proposal" shall mean any proposal
involving a transaction of the kind described in Section 8.6
of ARTICLE SIXTH of Sprint's Articles.
"Affiliate" shall mean, with respect to any Person, any
other Person that directly, or indirectly through one or
more intermediaries, Controls or is Controlled by, or is
under common Control with, such Person, provided that (a) no
JV Entity shall be deemed an Affiliate of any Party unless
(i) FT, DT and Atlas own a majority of the Voting Power of
such JV Entity and Sprint does not have the Tie-Breaking
Vote (as defined in Section 18.1 of the Joint Venture
Agreement), (ii) FT, DT or Atlas has the Tie-Breaking Vote
or (iii) FT, DT or any of their Affiliates cause such JV
Entity to acquire Beneficial Ownership of any Sprint equity
securities; (b) FT, DT and Sprint shall not be deemed
Affiliates of each other; (c) Atlas shall be deemed an
Affiliate of FT and DT; and (d) the term "Affiliate" shall
not include any Government Affiliate.
"Aggregate Foreign Ownership Limitation" shall mean the
maximum aggregate percentage of equity interests of Sprint
that may be Owned of Record or Voted by Aliens under Section
310(b)(4) of the Communications Act, without such ownership
or voting resulting in the possible loss, or possible
failure to secure the renewal or reinstatement, of any
license or franchise of any Governmental Authority held by
Sprint or any of its Affiliates to conduct any portion of
the business of Sprint or such Affiliate, as such maximum
aggregate percentage may be increased from time to time by
amendments to such section or by waivers granted to Sprint
by the FCC or by other determinations of the FCC, provided
that if Section 310(b)(4) is repealed or otherwise made
inapplicable to the ownership of Sprint capital stock by FT
and DT, there shall be no Aggregate Foreign Ownership
Limitation.
"Amended and Restated Stockholders' Agreement" shall
have the meaning set forth in Article VIII of the FT/DT
Restructuring Agreement.
"Amended Other Agreements" shall mean the FT/DT
Restructuring Agreement, the Amended and Restated
Stockholders' Agreement, the Amended and Restated
Registration Rights Agreement (as defined in the Amended and
Restated Stockholders' Agreement), and the Amended and
Restated Confidentiality Agreements (as defined in the
Amended and Restated Stockholders' Agreement).
"Beneficial Owner" (including, with its correlative
meanings, "Beneficially Own" and "Beneficial Ownership"),
with respect to any securities, shall mean any Person which:
(a) has, or any of whose Affiliates or Associates
has, directly or indirectly, the right to acquire (whether
such right is exercisable immediately or only after the
passage of time) such securities pursuant to any agreement,
arrangement or understanding (whether or not in writing),
including pursuant to the FT/DT Restructuring Agreement and
the Amended and Restated Stockholders' Agreement, or upon
the exercise of conversion rights, exchange rights, warrants
or options, or otherwise;
(b) has, or any of whose Affiliates or Associates
has, directly or indirectly, the right to vote or dispose of
(whether such right is exercisable immediately or only after
the passage of time) or "beneficial ownership" of (as
determined pursuant to Rule 13d-3 under the Exchange Act as
in effect on the date hereof but including all such
securities which a Person has the right to acquire
beneficial ownership of, whether or not such right is
exercisable within the 60-day period specified therein) such
securities, including pursuant to any agreement, arrangement
or understanding (whether or not in writing); or
(c) has, or any of whose Affiliates or Associates
has, any agreement, arrangement or understanding (whether
or not in writing) for the purpose of acquiring, holding,
voting or disposing of any securities which are Beneficially
Owned, directly or indirectly, by any other Person (or any
Affiliate or Associate thereof),
provided that (i) Class A Common Stock, Sprint FON Stock and
Sprint PCS Stock held by one of FT or DT or its Affiliates
or Associates shall not also be deemed to be Beneficially
Owned by the other of FT or DT or its Affiliates or
Associates; (ii) Sprint FON Stock and Sprint PCS Stock shall
not be deemed to be Beneficially Owned by FT, DT or their
Affiliates or Associates by virtue of the top up rights and
standby commitments granted under the Purchase Rights
Agreement except to the extent that FT, DT or their
Affiliates or Associates have (A) acquired shares of Sprint
FON Stock or Sprint PCS Stock pursuant to the Purchase
Rights Agreement, or (B) become irrevocably committed to
acquire, and the Cable Partners have become irrevocably
committed to sell, shares of Sprint FON Stock or Sprint PCS
Stock pursuant to the Purchase Rights Agreement (with such
Beneficial Ownership to be determined on a full-voting
basis), subject only to customary closing conditions, if
any; and (iii) FT, DT and their Affiliates and Associates
shall not be deemed to Beneficially Own any incremental
Voting Power resulting solely from the increase in Voting
Power provided for by the application of Section 7.5(d) of
the Articles.
"Cable Partners" means Tele-Communications, Inc.,
Comcast Corporation, and Xxx Communications, Inc., and any
of their respective successors (by merger, consolidation,
transfer or otherwise) to all or substantially all of their
respective businesses or assets.
"Class A Common Stock" shall mean the Class A Common
Stock, par value U.S. $2.50 per share, of Sprint.
"Class A Stock" shall mean the Class A Common Stock,
the Series 3 FON Stock and the Series 3 PCS Stock.
"Communications Act" shall mean the United States
Communications Act of 1934 and the rules and regulations
thereunder.
"Control" (including, with its correlative meanings,
"Controlled by" and "under common Control with") shall mean,
with respect to a Person or Group:
(a) ownership by such Person or Group of Votes
entitling it to exercise in the aggregate more than 50
percent of the Voting Power of the entity in question; or
(b) possession by such Person or Group of the
power, directly or indirectly, (i) to elect a majority of
the board of directors (or equivalent governing body) of the
entity in question; or (ii) to direct or cause the direction
of the management and policies of or with respect to the
entity in question, whether through ownership of securities,
by contract or otherwise.
"CP Closing" shall have the meaning set forth in
Article VIII of the FT/DT Restructuring Agreement.
"DT" shall have the meaning set forth in the
introductory paragraph of this Agreement.
"FT" shall have the meaning set forth in the
introductory paragraph of this Agreement.
"FT/DT Restructuring Agreement" means the Master
Restructuring and Investment Agreement dated as of May 26,
1998 by and among Sprint, FT and DT.
"Government Affiliate" shall mean any Governmental
Authority of France or Germany or any other Person
Controlled, directly or indirectly (other than by virtue of
a government's inherent regulatory or statutory powers to
control persons or entities within its jurisdiction), by any
such Governmental Authority, provided that FT, DT, Atlas and
any other Person directly, or indirectly through one or more
intermediaries, Controlled by FT, DT or Atlas shall not be
Government Affiliates.
"Group" shall mean any group within the meaning of
Section 13(d)(3) of the Exchange Act as in effect on the
date hereof.
"Initial Percentage Limitations" shall have the meaning
set forth in Section 2.1(a)(i), as adjusted pursuant to
Section 2.2(a).
"Initial Standstill Period" shall have the meaning set
forth in Section 2.1(a)(i).
"Largest Other Holder" shall mean the Other Holder, if
any, who Beneficially Owns a larger percentage of the
Outstanding Sprint Voting Securities than any other Person,
provided that, for purposes of this definition, FT, DT,
their Affiliates and Associates and Qualified Stock
Purchasers shall be considered a single Person.
"Number of Shares Issuable With Respect to the Class A
Equity Interest in the FON Group" shall have the meaning set
forth in ARTICLE SIXTH, Section 10 of the Articles of
Incorporation of Sprint, as amended from time to time.
"Number of Shares Issuable With Respect to the Class A
Equity Interest in the PCS Group" shall have the meaning set
forth in ARTICLE SIXTH, Section 10 of the Articles of
Incorporation of Sprint, as amended from time to time.
"Other Holder" shall mean any Person other than (i) FT,
DT, any of their respective Affiliates or Associates or any
Qualified Stock Purchaser, (ii) Sprint, (iii) any Subsidiary
of Sprint, (iv) any employee benefit plan of Sprint or of
any Subsidiary of Sprint, or (v) any Person organized,
appointed or established by Sprint or any Subsidiary of
Sprint for or pursuant to the terms of any such plan.
"Outstanding Sprint FON Stock" shall mean the shares of
Sprint FON Stock outstanding as of any particular date, plus
(i) all shares of Sprint FON Stock which as of such date any
of FT or DT or any of their respective Affiliates is
committed to acquire from Sprint or has the right to acquire
(or to commit to acquire) from Sprint pursuant to the FT/DT
Restructuring Agreement and the Amended and Restated
Stockholders' Agreement, and (ii) the aggregate Number of
Shares Issuable With Respect to the Class A Equity Interest
in the FON Group.
"Outstanding Sprint PCS Stock" shall mean the shares of
Sprint PCS Stock outstanding as of any particular date, plus
(i) all shares of Sprint PCS Stock which as of such date any
of FT or DT or any of their respective Affiliates is
committed to acquire from Sprint or has the right to acquire
(or to commit to acquire) from Sprint pursuant to the
Amended and Restated Stockholders' Agreement, plus (ii) the
aggregate Number of Shares Issuable With Respect to the
Class A Equity Interest in the PCS Group as of such date.
"Outstanding Sprint Voting Securities" shall mean (i)
the Sprint Voting Securities outstanding as of any
particular date, plus (ii) all Sprint Voting Securities
which as of such date any of FT or DT or any of their
respective Affiliates is committed to acquire from Sprint or
has the right to acquire (or to commit to acquire) from
Sprint pursuant to the Amended and Restated Stockholders'
Agreement.
"Owned of Record or Voted by" shall have the meaning
specified in Section 310(b)(4) of the Communications Act and
published interpretations thereof by the FCC and the U.S.
federal courts.
"Percentage Limitations" shall have the meaning set
forth in Sections 2.1(a)(i) and 2.1(a)(ii), each as adjusted
pursuant to Section 2.2(a).
"Percentage Limitation Adjustment Event" shall mean the
acquisition by an Other Holder of Beneficial Ownership of
Outstanding Sprint Voting Securities in excess of the
applicable Percentage Limitations as reflected in clause (A)
of Section 2.1(a)(i) or clause (A) of Section 2.1(a)(ii), as
the case may be, unless any of FT, DT or any Qualified
Subsidiary shall have breached any of the provisions of
Section 3.1 or 3.2 of this Agreement or any corresponding
provision of any Qualified Subsidiary Standstill Agreement
and such breach resulted in, or was intended to facilitate,
such Other Holder's acquisition of Beneficial Ownership of
Outstanding Sprint Voting Securities in excess of such
applicable Percentage Limitations.
"Percentage Ownership Interest" shall mean, with
respect to any Person, that percentage of the Voting Power
of Sprint represented by Votes associated with the Sprint
Voting Securities owned of record by such Person or by its
nominees.
"Purchase Rights Agreement" shall mean the Top Up
Rights Agreement dated as of May 26, 1998 among FT, DT,
Sprint and the Cable Partners as in effect on such date.
"Qualified Stock Purchaser Standstill Agreement" shall
mean a Standstill Agreement in form and substance
satisfactory to Sprint, FT and DT.
"Qualified Subsidiary Standstill Agreement" shall mean
a Standstill Agreement in the form of Exhibit A.
"Recapitalization" shall have the meaning set forth in
Article VIII of the FT/DT Restructuring Agreement.
"Record Date Period" shall mean a period of ten Trading
Days beginning on the ninth Trading Day (as defined in the
Amended and Restated Stockholders' Agreement) before a
record date for a meeting of Sprint's stockholders or for
the payment of dividends and ending on (and including) such
record date (which shall be a Trading Day).
"Related Company" shall mean any Person not Controlled
by FT or DT, but in which FT, DT and their respective
Affiliates and Associates, individually or in the aggregate,
directly or indirectly through one or more intermediaries,
own securities entitling them to exercise in the aggregate
more than 35 percent of the Voting Power of such Person.
"Series 1 FON Stock" shall mean the FON Common Stock --
Series 1, par value U.S. $2.00 per share, of Sprint to be
created in connection with the Recapitalization.
"Series 1 PCS Stock" shall mean the PCS Common Stock --
Series 1, par value U.S. $1.00 per share, of Sprint to be
created by the Initial Charter Amendment.
"Series 2 FON Stock" shall mean the FON Common Stock --
Series 2, par value U.S. $2.00 per share, of Sprint to be
created by the Subsequent Charter Amendment.
"Series 2 PCS Stock" shall mean the PCS Common Stock --
Series 2, par value U.S. $1.00 per share, of Sprint to be
created by the Initial Charter Amendment.
"Series 3 FON Stock" shall mean the FON Common Stock --
Series 3, par value U.S. $2.00 per share, of Sprint to be
created by the Subsequent Charter Amendment.
"Series 3 PCS Stock" shall mean the PCS Common Stock --
Series 3, par value U.S. $1.00 per share, of Sprint to be
created by the Initial Charter Amendment.
"Sprint" shall have the meaning set forth in the
introductory paragraph of this Agreement.
"Sprint FON Common Stock" shall mean (i) prior to the
Recapitalization, the Common Stock, par value U.S. $2.50 per
share, of Sprint, and (ii) following the Recapitalization,
the Series 1 FON Stock and the Series 0 XXX Xxxxx.
"Xxxxxx XXX Xxxxx" shall mean the Sprint FON Common
Stock and the Series 3 FON Stock.
"Sprint PCS Common Stock" shall mean the Series 1 PCS
Stock and the Series 2 PCS Stock.
"Sprint PCS Preferred Stock" shall mean the Preferred
Stock -- Series 7, no par value, of Sprint, which is to be
created prior to the CP Closing.
"Sprint PCS Stock" shall mean the Sprint PCS Common
Stock, the Sprint PCS Preferred Stock and the Series 3 PCS
Stock.
"Sprint Rights Plan" shall mean the Rights Agreement
dated as of June 9, 1997, as amended, between Sprint and UMB
Bank, n.a., as rights agent.
"Sprint Voting Securities" shall mean the Sprint FON
Common Stock, the Sprint PCS Common Stock, the Sprint PCS
Preferred Stock, the Class A Stock and any other securities
of Sprint having the right to Vote.
"Strategic Investor" shall mean any Person which owns
directly any equity interests in a Qualified Subsidiary,
other than FT, DT, any wholly owned Subsidiary of FT or DT
or a Passive Financial Institution.
"Strategic Investor Standstill Agreement" shall mean a
Standstill Agreement in the form of Exhibit B.
"Subsequent Percentage Limitations" shall have the
meaning set forth in Section 2.1(a)(ii), as adjusted
pursuant to Section 2.2(a).
"Vote" shall mean, as to any entity, the ability to
cast a vote at a stockholders' or comparable meeting of such
entity with respect to the election of directors or other
members of such entity's governing body, provided that:
(i) with respect to Sprint only, the term "Vote" shall
mean the ability to exercise general voting power (as
opposed to the exercise of special voting or disapproval
rights such as those set forth in the Class A Provisions)
with respect to matters other than the election of directors
at a meeting of the stockholders of Sprint;
(ii) with respect to Sprint only, the term "Vote" shall
include the aggregate number of Votes represented by all
Sprint Voting Securities which as of such date any of FT or
DT or any of their respective Affiliates Beneficially Owns
or is committed to acquire from Sprint or has the right to
acquire (or to commit to acquire) from Sprint pursuant to
the Amended and Restated Stockholders' Agreement;
(iii) except as set forth in clause (iv) of this
definition, with respect to Sprint only, in determining the
number of Votes outstanding at any date and/or represented
by any Sprint Voting Securities at any date, a record date
for determining the stockholders entitled to vote shall be
deemed to have been set by the Board of Directors of Sprint
on each such date and accordingly the number of Votes
represented by the Sprint PCS Stock on any given date shall
be deemed to have been adjusted in the manner provided in
Section 3.2 of Article SIXTH of the Articles as if such date
were a record date for determining the stockholders entitled
to vote; and
(iv) notwithstanding clause (iii) of this definition,
during a Record Date Period, the number of Votes outstanding
at any date from and including the first day of such period
and to and including the last day of such period and/or
represented by any Sprint Voting Securities at any date
during such period shall be determined in the manner
provided in Section 3.2 of Article SIXTH with respect to the
record date occurring on the last day of such Record Date
Period including, in the case of a record date for the
payment of dividends, as if such date were a record date for
determining the stockholders entitled to vote.
"Voting Power" shall mean, as to any entity as at any
date, the aggregate number of Votes outstanding as at such
date in respect of such entity, provided that, in the case
of Sprint, the term "Voting Power" shall mean the aggregate
number of Votes represented by all Outstanding Sprint Voting
Securities.
In addition to the foregoing, each of the following
terms shall have the respective meanings given to such term
in Article I of the Amended and Restated Stockholders'
Agreement: Alien, Applicable Law, Articles, Associate,
Atlas, Change of Control, Class A Provisions, Exchange Act,
FCC, France, Germany, Governmental Authority, Initial
Charter Amendment, Joint Venture Agreement, Joint Venture
Documents, JV Entity, Passive Financial Institution, Person,
Qualified Stock Purchaser, Qualified Subsidiary, SEC and
Subsidiary.
Section 1.2. Interpretation and Construction of this
Agreement. The definitions in Section 1.1 shall apply
equally to both the singular and plural forms of the terms
defined. Whenever the context may require, any pronoun
shall include the corresponding masculine, feminine and
neuter forms. The words "include," "includes" and
"including" shall be deemed to be followed by the phrase
"without limitation." All references herein to Articles,
Sections and Exhibits shall be deemed to be references to
Articles and Sections of, and Exhibits to, this Agreement
unless the context shall otherwise require. The headings of
the Articles and Sections are inserted for convenience of
reference only and are not intended to be a part of or to
affect the meaning or interpretation of this Agreement.
Unless the context shall otherwise require or provide, any
reference to any agreement or other instrument or statute or
regulation is to such agreement, instrument, statute or
regulation as amended and supplemented from time to time
(and, in the case of a statute or regulation, to any
successor provision).
ARTICLE 2.
RESTRICTIONS ON ACQUISITION OF VOTING SECURITIES BY
FT, DT AND THEIR AFFILIATES AND ASSOCIATES
Section 2.1. Acquisition Restrictions.
(a) Subject to Sections 2.2, 2.3 and 2.4, each of
FT and DT agrees that it will not, and will cause each of
its respective Affiliates and Associates not to, directly or
indirectly, acquire, offer to acquire, or agree to acquire,
by purchase or otherwise, Beneficial Ownership of:
(i) any Sprint Voting Securities on or prior to
July 31, 2010 (the "Initial Standstill Period"),
if any of the following would occur: (A) the Votes
represented by the Sprint Voting Securities
Beneficially Owned in the aggregate by FT, DT and
their respective Affiliates and Associates would
represent in the aggregate more than 20% of the
Voting Power represented by the Outstanding Sprint
Voting Securities, (B) the Votes represented by
the shares of Class A Common Stock (to the extent
representing a Number of Shares Issuable With
Respect to the Class A Equity Interest in the FON
Group) and Sprint FON Stock Beneficially Owned in
the aggregate by FT, DT and their respective
Affiliates and Associates would represent in the
aggregate more than 33% of the Voting Power
represented by the Outstanding Sprint FON Stock,
or (C) the Votes represented by the shares of
Class A Common Stock (to the extent representing a
Number of Shares Issuable With Respect to the
Class A Equity Interest in the PCS Group) and
Sprint PCS Stock Beneficially Owned in the
aggregate by FT, DT and their respective
Affiliates and Associates would represent in the
aggregate more than 33% of the Voting Power
represented by the Outstanding Sprint PCS Stock
(clauses (A), (B) and (C) being collectively
referred to as the "Initial Percentage
Limitations"); or
(ii) any Sprint Voting Securities after the
Initial Standstill Period, if any of the following
would occur: (A) the Votes represented by the
Sprint Voting Securities Beneficially Owned in the
aggregate by FT, DT and their respective
Affiliates and Associates would represent in the
aggregate more than 30% of the Voting Power
represented by the Outstanding Sprint Voting
Securities, (B) the Votes represented by the
shares of Class A Common Stock (to the extent
representing a Number of Shares Issuable With
Respect to the Class A Equity Interest in the FON
Group) and Sprint FON Stock Beneficially Owned in
the aggregate by FT, DT and their respective
Affiliates and Associates would represent in the
aggregate more than 33% of the Voting Power
represented by the Outstanding Sprint FON Stock,
(C) the Votes represented by the shares of Class A
Common Stock (to the extent representing a Number
of Shares Issuable With Respect to the Class A
Equity Interest in the PCS Group) and Sprint PCS
Stock Beneficially Owned in the aggregate by FT,
DT and their respective Affiliates and Associates
would represent in the aggregate more than 33% of
the Voting Power represented by the Outstanding
Sprint PCS Stock (clauses (A), (B) and (C) being
collectively referred to as the "Subsequent
Percentage Limitations"; the Initial Percentage
Limitations and the Subsequent Percentage
Limitations, as the case may be, also being
referred to as the "Percentage Limitations"), or
(D) the Sprint Voting Securities Beneficially
Owned in the aggregate by FT and DT and their
respective Affiliates and Associates would exceed
80% of the Aggregate Foreign Ownership Limitation;
or
(iii) any Sprint nonvoting equity securities,
but not including any "Derivative Security" (as
defined in the Purchase Rights Agreement)
purchased by FT or DT from the Cable Partners
under the Purchase Rights Agreement so long as the
acquisition of the shares acquired as a result of
such derivative instruments is not otherwise in
violation of this Agreement.
(b) In addition to any other restrictions
contained herein or in the Joint Venture Documents, the
Parties agree that none of the Parties will cause any JV
Entity to, directly or indirectly, acquire, offer to
acquire, or agree to acquire, by purchase or otherwise,
Beneficial Ownership of any equity securities of Sprint.
Section 2.2. Exception to Purchase Restrictions.
(a) Subject to Section 2.4, if a Percentage
Limitation Adjustment Event shall occur, then the applicable
Percentage Limitations shall be increased to the extent
necessary so that Sections 2.1(a)(i) and 2.1(a)(ii) do not
prohibit FT, DT and their respective Affiliates from
acquiring Beneficial Ownership of additional Sprint Voting
Securities so long as each of the following conditions is
satisfied: (i) the Votes represented by the Sprint Voting
Securities Beneficially Owned in the aggregate by FT, DT and
their respective Affiliates and Associates and any Qualified
Stock Purchasers are no greater than the Votes represented
by the Sprint Voting Securities Beneficially Owned by the
Largest Other Holder, after giving effect to any dilution to
such holder resulting from the operation of the Sprint
Rights Plan, (ii) the Votes represented by the shares of
Class A Common Stock (to the extent representing a Number of
Shares Issuable With Respect to the Class A Equity Interest
in the FON Group) and Sprint FON Stock Beneficially Owned in
the aggregate by FT, DT and their respective Affiliates and
Associates do not represent in the aggregate more than 33%
of the Voting Power represented by the Outstanding Sprint
FON Stock, (iii) the Votes represented by the shares of
Class A Common Stock (to the extent representing a Number of
Shares Issuable With Respect to the Class A Equity Interest
in the PCS Group) and Sprint PCS Stock Beneficially Owned in
the aggregate by FT, DT and their respective Affiliates and
Associates do not represent in the aggregate more than 33%
of the Voting Power represented by the Outstanding Sprint
PCS Stock, and (iv) the Sprint Voting Securities
Beneficially Owned in the aggregate by FT and DT and their
respective Affiliates do not at any time exceed 80% of the
Aggregate Foreign Ownership Limitation.
(b) Subject to Section 2.4, if an acquisition by
FT, DT or any of their respective Affiliates or Associates
of Beneficial Ownership of additional Sprint Voting
Securities otherwise permitted by Section 2.1(a)(ii) or
2.2(a) is prohibited thereunder due to clause (D) of Section
2.1(a)(ii) or due to clause (iv) of Section 2.2(a), then FT
or DT may assign to one or more non-Alien Qualified Stock
Purchasers in accordance with Section 7.2 of the Amended and
Restated Stockholders' Agreement their rights under
Section 2.1(a)(ii) or 2.2(a) to purchase in the aggregate
the number of shares of Sprint Voting Securities which
equals the number of shares of Sprint Voting Securities the
purchase of which is prohibited by clause (D) of Section
2.1(a)(ii) or clause (iv) of Section 2.2(a), as the case may
be.
Section 2.3. Effect of Action by Sprint; Inadvertent
Action.
(a) Subject to Section 2.3(b), neither FT nor DT
shall be deemed in violation of this Article 2 if the
Beneficial Ownership of Sprint Voting Securities by FT, DT
and their respective Affiliates and Associates exceeds the
applicable Percentage Limitations (i) solely as a result of
an acquisition of Sprint Voting Securities by Sprint
(including as a result of a redemption by Sprint of its
Sprint PCS Preferred Stock) that, by reducing the number of
Outstanding Sprint Voting Securities, increases the
proportionate number of Sprint Voting Securities
Beneficially Owned by FT, DT and their respective Affiliates
and Associates, (ii) if FT, DT and their Affiliates and
Associates are in compliance with clauses (B) and (C) of
Section 2.1(a)(i) (or, after the Initial Standstill Period,
clauses (B) and (C) of Section 2.1(a)(ii)), the Beneficial
Ownership of Sprint Voting Securities by FT, DT and their
respective Affiliates and Associates does not exceed the
Percentage Limitation set forth in clause (A) of Section
2.1(a)(i) (or, after the Initial Standstill Period,
clause (A) of Section 2.1(a)(ii)) by more than 0.5% and the
acquisitions of Beneficial Ownership which resulted in FT,
DT and their respective Affiliates and Associates exceeding
such Percentage Limitation were undertaken in good faith and
such applicable Percentage Limitation was exceeded
inadvertently, (iii) solely as a result of any readjustment
in the relative Voting Power of the Sprint FON Stock and the
Sprint PCS Stock in accordance with the terms of the
Articles, (iv) solely as a result of a redemption or
conversion of any Sprint PCS Stock pursuant to ARTICLE
SIXTH, Section 7 of the Articles, or (v) because FT, DT or
their respective Affiliates or Associates acquire Beneficial
Ownership of Sprint Voting Securities in excess of the
applicable Percentage Limitations in reliance on information
regarding the number of outstanding shares of Sprint
provided directly to any of FT, DT and their respective
Affiliates and Associates by Sprint in response to a request
for such information by any of FT, DT and their respective
Affiliates and Associates immediately prior to such
purchase.
(b) Notwithstanding Section 2.3(a), the
applicable Percentage Limitations shall be deemed exceeded
if (i) in the case of Section 2.3(a)(i), FT, DT or any of
their respective Affiliates or Associates acquires
Beneficial Ownership of any additional Sprint Voting
Securities after it has been notified of an acquisition of
Sprint Voting Securities by Sprint (including as a result of
a redemption by Sprint of its Sprint PCS Preferred Stock),
(ii) in the case of Section 2.3(a)(ii), FT, DT or any of
their respective Affiliates or Associates acquires
Beneficial Ownership of any additional Sprint Voting
Securities after it has been notified or has knowledge that
one or more of the applicable Percentage Limitations has
been exceeded, (iii) in the case of Section 2.3(a)(iii),
after a readjustment in the relative Voting Power of the
Sprint FON Stock and the Sprint PCS Stock which results in
FT, DT and their respective Affiliates and Associates having
Beneficial Ownership of Sprint Voting Securities in excess
of any of the applicable Percentage Limitations, FT, DT or
any of their respective Affiliates or Associates acquires
Beneficial Ownership of any additional Sprint Voting
Securities, after being notified of, or having knowledge of
such readjustment in the relative Voting Power, (iv) in the
case of Section 2.3(a)(iv), after the redemption or
conversion of any Sprint PCS Stock pursuant to ARTICLE
SIXTH, Section 7 of the Articles which results in FT, DT and
their respective Affiliates and Associates having Beneficial
Ownership of Sprint Voting Securities in excess of any of
the applicable Percentage Limitations, FT, DT or any of
their respective Affiliates or Associates acquires
Beneficial Ownership of any additional Sprint Voting
Securities after being notified of, or having knowledge of,
such redemption or conversion, and (v) in the case of
Section 2.3(a)(v), FT, DT or any of their respective
Affiliates or Associates acquires Beneficial Ownership of
additional Sprint Voting Securities after it has been
notified that the information regarding the number of
outstanding shares previously provided to it was incorrect
and it has been provided by Sprint with correct information,
unless in the case of clauses (i), (ii), (iii), (iv) and
(v):
(x) upon the acquisition of Beneficial Ownership
of such additional Sprint Voting Securities, FT, DT and
their respective Affiliates and Associates do not
Beneficially Own in the aggregate more than any of the
applicable Percentage Limitations, or
(y) subject to the rights of Sprint in Section
5.7 of the Amended and Restated Stockholders'
Agreement, such acquisition is effected pursuant to (A)
the exercise of equity purchase rights by FT or DT
pursuant to the Amended and Restated Stockholders'
Agreement, or (B) market purchases which are made
solely in lieu of the exercise of equity purchase
rights by FT or DT pursuant to the Amended and Restated
Stockholders' Agreement following the issuance of
securities by Sprint, so long as (1) either (I) FT or
DT, as the case may be, has irrevocably waived its
rights to exercise the equity purchase rights in
respect of which such market purchases are made in lieu
thereof, or (II) the time period for the exercise of
such equity purchase rights has expired without the
exercise of such rights, and (2) following such market
purchases, the Percentage Ownership Interest of FT, DT
and their respective Affiliates and Associates does not
exceed the Percentage Ownership Interest of FT, DT and
their respective Affiliates and Associates which would
have been in effect had FT, DT and their respective
Affiliates exercised such equity purchase rights.
Section 2.4. Sprint Rights Plan.
(a) Notwithstanding the provisions of Sections
2.1 and 2.2, each of FT and DT agrees that it will not, and
will cause each of its respective Affiliates not to,
directly or indirectly, acquire, offer to acquire, or agree
to acquire, by purchase or otherwise, Beneficial Ownership
of any Sprint Voting Securities if such acquisition would
result in FT or DT or any of their respective Affiliates
being deemed an Acquiring Person (as such term is defined in
the Sprint Rights Plan) or result in the occurrence of a
Stock Acquisition Date, Distribution Date, Section 11(a)(ii)
Event or Section 13 Event (as such terms are defined in the
Sprint Rights Plan).
(b) If the Sprint Board of Directors amends or
waives the provisions of the Sprint Rights Plan in such a
manner to permit an Other Holder to acquire Beneficial
Ownership of Sprint Voting Securities having Votes in excess
of the applicable Percentage Limitations without such
acquisition resulting in the Other Holder being deemed an
Acquiring Person or resulting in the occurrence of a Stock
Acquisition Date, Distribution Date, Section 11(a)(ii) Event
or Section 13 Event or makes any other changes to the Sprint
Rights Plan which would permit any Other Holder to own
Sprint Voting Securities having Votes in excess of the
applicable Percentage Limitations without triggering adverse
consequences under the Sprint Rights Plan to such Other
Holder, then Sprint will amend or waive the provisions of
the Sprint Rights Plan so that the Sprint Rights Plan does
not impose any prohibition (including any prohibition on the
ownership of Voting Securities), on FT, DT and their
respective Affiliates and Associates which is more
restrictive than the restrictions imposed on any Other
Holder.
ARTICLE 3.
OTHER STANDSTILL PROVISIONS; QUORUM
Section 3.1. Standstill Covenants. Each of FT and DT
agrees that it will not, and it will cause each of its
respective Affiliates and Associates not to, directly or
indirectly, alone or in concert with others (including with
any Government Affiliate, Related Company or Qualified Stock
Purchaser), unless specifically requested in writing by the
Chairman of Sprint or by a resolution of a majority of the
directors of Sprint, take any of the actions set forth
below, except to the extent expressly permitted or provided
for by the Amended Other Agreements and the Joint Venture
Documents:
(a) effect, seek, offer, propose (whether
publicly or otherwise) or cause or participate in, or assist
any other Person to effect, seek, offer or propose (whether
publicly or otherwise) or participate in:
(i) any acquisition of Beneficial Ownership of Sprint
Voting Securities or other equity interests in
Sprint which would result in a breach of Article 2
of this Agreement;
(ii) any tender or exchange offer, merger,
consolidation, share exchange or business
combination involving Sprint or any material
portion of its business or any purchase of all or
any substantial part of the assets of Sprint or
any material portion of its business, provided
that nothing in this clause (ii) shall prohibit
discussions by the Parties in connection with the
conduct of the business of the JV Entities in the
manner contemplated by the Joint Venture Documents
or in connection with offers by FT or DT to
purchase equity interests owned by Sprint in the
JV Entities;
(iii) any recapitalization, restructuring,
liquidation, dissolution or other extraordinary
transaction with respect to Sprint or any material
portion of its business, provided that nothing in
this clause (iii) shall prohibit discussions by
the Parties in connection with the conduct of the
business of the JV Entities or in connection with
offers by FT or DT to purchase equity interests
owned by Sprint in the JV Entities; or
(iv) any "solicitation" of "proxies" (as such
terms are used in the proxy rules of the SEC but
without regard to the exclusion set forth in
Section 14a-1(l)(2)(iv) from the definition of
"solicitation") with respect to Sprint or any of
its Affiliates or any action resulting in such
Person becoming a "participant" in any "election
contest" (as such terms are used in the proxy
rules of the SEC) with respect to Sprint or any of
its Affiliates;
(b) propose any matter for submission to a vote
of stockholders of Sprint or any of its Affiliates; provided
that nothing in this Section 3.1(b) shall restrict the
manner in which the members of the Board of Directors of
Sprint elected by the holders of Class A Stock may (i) vote
on any matter submitted to such Board, or (ii) participate
in deliberations or discussions of such Board (including
making suggestions and raising issues to the Board, so long
as such actions do not otherwise violate any other provision
of this Section 3.1 or Section 3.2) in their capacity as
members of such Board and in no other capacity, including
any capacity such persons serving as directors otherwise may
have as a director, officer, employee, agent or
representative of any other Person, including any holder of
Class A Stock;
(c) form, join or participate in a Group with
respect to any Sprint Voting Securities (other than any
Group whose members consist solely of FT, DT, any of their
respective Affiliates and Associates and any Qualified
Subsidiaries);
(d) grant any proxy with respect to any Sprint
Voting Securities to any Person not designated by Sprint,
except for proxies granted to FT or DT or Qualified
Subsidiaries or to individuals who are officers, employees
or regular agents or advisors of FT or DT or Qualified
Subsidiaries who have received specific instructions from
FT, DT or Qualified Subsidiaries, as the case may be, as to
the voting of such Sprint Voting Securities with respect to
the matter or matters for which the proxy is granted;
(e) deposit any Sprint Voting Securities in a
voting trust or subject any Sprint Voting Securities to any
arrangement or agreement with respect to the voting of such
Sprint Voting Securities or other agreement having similar
effect, except for agreements solely among FT, DT and any
Qualified Subsidiary;
(f) execute any written stockholder consent with
respect to Sprint, except for written consents executed by
such Persons as holders of the Class A Stock in connection
with (i) the election of Class A Directors (as defined in
the Articles), (ii) the approval or disapproval of a Subject
Event, Major Issuance or Major Competitor Transaction (each
as defined in the Articles) during the period in which the
holders of the Class A Stock are entitled to exercise
disapproval rights with respect to such matter, (iii) any
vote by the holders of Class A Common Stock, Series 3 FON
Stock, or Series 3 PCS Stock with respect to which holders
of each such class or series of stock is entitled to vote
separately as a class, or (iv) any vote by the holders of
the Class A Stock with respect to which such holders are
entitled to vote together as a single class;
(g) take any other action to seek to affect the
control of the management or Board of Directors of Sprint or
any of its Affiliates; provided that nothing in this Section
3.1(g) shall restrict the manner in which the members of the
Board of Directors of Sprint elected by the holders of Class
A Stock may (i) vote on any matter submitted to such Board,
or (ii) participate in deliberations or discussions of such
Board (including making suggestions and raising issues to
the Board, so long as such actions do not otherwise violate
any other provision of this Section 3.1 or Section 3.2) in
their capacity as members of such Board and in no other
capacity, including any capacity such persons serving as
directors otherwise may have as a director, officer,
employee, agent or representative of any other Person,
including any holder of Class A Stock;
(h) enter into any discussions, negotiations,
arrangements or understandings with any Person (including
any Government Affiliate, Related Company or Qualified Stock
Purchaser) other than FT, DT, their Affiliates, Associates
and their respective directors, officers, employees, agents
or advisors with respect to any of the foregoing, or advise,
assist, encourage or seek to persuade others to take any
action with respect to any of the foregoing;
(i) disclose to any Person (including any
Government Affiliate, Related Company or Qualified Stock
Purchaser) other than FT, DT, their Affiliates, Associates
and their respective directors, officers, employees, agents
or advisors any intention, plan or arrangement inconsistent
with the foregoing or with the restrictions on transfer set
forth in Article II of the Stockholders' Agreement or form
any such intention which would result in FT, DT or any of
their respective Affiliates or Associates being required to
make any such disclosure in any filing with a Governmental
Authority or being required by Applicable Law to make a
public announcement with respect thereto; or
(j) request Sprint or any of its Affiliates,
directors, officers, employees, representatives, advisors or
agents, directly or indirectly, to amend or waive in any
material respect this Agreement (including this Section
3.1(j)) or the articles of incorporation or the bylaws of
Sprint or any of its Affiliates.
Section 3.2. Press Releases, Etc. by FT and DT.
(a) Subject to Section 3.2(b), each of FT and DT
may issue such press releases and make such other public
communications to the financial community and to its
stockholders and such other public statements made in the
ordinary course relating to its investment in Sprint, in
each case as it reasonably deems appropriate and customary.
Prior to making any such press release or other
communication, FT and DT will use reasonable efforts to
consult with Sprint in good faith regarding the form and
content of any such communication, and FT and DT will use
reasonable efforts to coordinate any such communication with
any decisions reached by Sprint with respect to disclosures
relating to such matters.
(b) Notwithstanding the provisions of Section
3.2(a), unless required by Applicable Law, neither FT nor
DT, nor any of their respective Affiliates or Associates,
may make any press release, public announcement or other
communication with respect to any of the matters described
in Sections 3.1(a), 3.1(b), 3.1(c), 3.1(g), 3.1(h) or 3.1(j)
without the prior written consent of the Chairman of Sprint
or by a resolution of a majority of the directors of Sprint.
Nothing in this Section 3.2 shall permit FT or DT to take
any action which would otherwise violate any provision
contained in Section 3.1.
Section 3.3. Voting of Sprint Voting Securities.
Except as set forth in Sections 3.1(d), 3.1(e) and 3.1(f),
nothing in Section 3.1 shall restrict the manner in which
FT, DT and their respective Affiliates may vote their Sprint
Voting Securities.
Section 3.4. Quorum. Each of FT and DT shall use
reasonable efforts to ensure that they shall be present, and
shall use reasonable efforts to cause their respective
Affiliates and Associates owning Sprint Voting Securities to
be present, in each case, in person or by proxy, at all
meetings of stockholders of Sprint so that all Sprint Voting
Securities Beneficially Owned by FT and DT and their
respective Affiliates and Associates shall be counted for
purposes of determining the presence of a quorum at such
meeting.
Section 3.5. Notice of Proposals Regarding
Acquisition Transactions. Each of FT and DT agrees that it
will notify Sprint promptly if any inquiries or proposals
which FT or DT reasonably believes are of substance are
received by, any information is exchanged with respect to,
or any negotiations or substantive discussions are initiated
or continued with, FT or DT or any of their respective
Affiliates regarding any Acquisition Proposal involving
Sprint or any purchase of any of the shares of capital stock
of Sprint Beneficially Owned by FT, DT or any of their
respective Affiliates pursuant to a tender offer or exchange
offer.
ARTICLE 4.
OBLIGATIONS OF OTHER ENTITIES
Section 4.1. Qualified Subsidiaries. FT and DT shall
cause each Person which, as a result of the acquisition of
Beneficial Ownership of any Sprint Voting Securities, would
become a Qualified Subsidiary to execute a Qualified
Subsidiary Standstill Agreement prior to and as a condition
to the effectiveness of such acquisition.
Section 4.2. Strategic Investors. FT and DT shall
cause each Person which, as a result of an acquisition of
Beneficial Ownership of any equity interest in a Qualified
Subsidiary, would become a Strategic Investor (and any
Person who Beneficially Owns more than 35% of the Voting
Power, or otherwise Controls, such acquiring Person) to
execute a Strategic Investor Standstill Agreement prior to
and as a condition to the effectiveness of such acquisition.
ARTICLE 5.
MISCELLANEOUS
Section 5.1. Termination. The provisions of this
Agreement shall terminate if the Company proceeds with a
transaction involving a Change of Control following the
process described in Section 4.1 of the Amended and Restated
Stockholders' Agreement. Any termination of this Agreement
as provided herein shall be without prejudice to the rights
of any Party arising out of the breach by any other Party of
any provision of this Agreement.
Section 5.2. Notices. All notices and other
communications required or permitted by this Agreement shall
be made in writing in the English language and any such
notice or communication shall be deemed delivered when
delivered in person, transmitted by telex or telecopier, or
seven days after it has been sent by air mail, as follows:
FT: 0 xxxxx x'Xxxxxxx
00000 Xxxxx Cedex 15
France
Attention: Group Executive Vice President
Resources
Tel: (00-0) 00-00-00-00
Fax: (00-0) 00-00-00-00
with a copy to:
0 xxxxx x'Xxxxxxx
00000 Xxxxx Cedex 15
France
Attention: General Counsel
Tel: (00-0) 00-00-00-00
Fax: (00-0) 00-00-00-00
and with a copy to:
Shearman & Sterling
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
X.X.X.
Attention: Xxxxxx X. Xxxx, Xx., Esq.
Tel: (000) 000-0000
Fax: (000) 000-0000
DT: Xxxxxxxxx-Xxxxx-Xxxxx 000
X-00000 Xxxx
Xxxxxxx
Attention: Chief Executive Officer
Tel: 00-000-000-0000
Fax: 00-000-000-0000
with a copy to:
Cleary, Gottlieb, Xxxxx & Xxxxxxxx
Xxx Xxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
X.X.X.
Attention: Xxxxxx X. Xxxxx, Esq.
Tel: (000) 000-0000
Fax: (000) 000-0000
Sprint: 2330 Shawnee Mission Parkway
East Wing
Westwood, Kansas 66205
U.S.A.
Attention: General Counsel
Tel: (000) 000-0000
Fax: (000) 000-0000
with a copy to:
King & Spalding
000 Xxxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxx 00000
X.X.X.
Attention: Xxxxx X. Xxxxxxxxx, Esq.
Tel: (000) 000-0000
Fax: (000) 000-0000
The Parties shall promptly notify each other in the manner
provided in this Section 5.2 of any change in their
respective addresses. A notice of change of address shall
not be deemed to have been given until received by the
addressee. Communications by telex or telecopier also shall
be sent concurrently by mail, but shall in any event be
effective as stated above.
Section 5.3. Assignment. No Party will assign this
Agreement or any rights, interests or obligations hereunder,
or delegate performance of any of its obligations hereunder,
without the prior written consent of each other Party.
Section 5.4. Entire Agreement. This Agreement,
including the Exhibits attached hereto, embodies the entire
agreement and understanding of the Parties in respect of the
subject matter contained herein, provided that this
provision shall not abrogate any other written agreement
between the Parties executed simultaneously with this
Agreement. This Agreement supersedes all prior agreements
and understandings between the Parties with respect to such
subject matter.
Section 5.5. Waiver, Amendment, etc. This Agreement
may not be amended or supplemented, and no waivers of or
consents to departures from the provisions hereof shall be
effective, unless set forth in a writing signed by, and
delivered to, all the Parties. No failure or delay of any
Party in exercising any power or right under this Agreement
will operate as a waiver thereof, nor will any single or
partial exercise of any right or power, or any abandonment
or discontinuance of steps to enforce such right or power,
preclude any other or further exercise thereof or the
exercise of any other right or power.
Section 5.6. Binding Agreement; No Third Party
Beneficiaries. This Agreement will be binding upon and
inure to the benefit of the Parties and their successors and
permitted assigns. Nothing expressed or implied herein is
intended or will be construed to confer upon or to give to
any third party any rights or remedies by virtue hereof.
Section 5.7. Governing Law; Dispute Resolution;
Equitable Relief.
(a) THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW
YORK (REGARDLESS OF THE LAWS THAT MIGHT OTHERWISE GOVERN
UNDER APPLICABLE PRINCIPLES OF CONFLICTS OF LAW).
(b) EACH PARTY IRREVOCABLY CONSENTS AND AGREES
THAT ANY LEGAL ACTION, SUIT OR PROCEEDING AGAINST IT WITH
RESPECT TO ITS OBLIGATIONS OR LIABILITIES UNDER OR ARISING
OUT OF OR IN CONNECTION WITH THIS AGREEMENT SHALL BE BROUGHT
ONLY IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN
DISTRICT OF NEW YORK OR, IN THE EVENT (BUT ONLY IN THE
EVENT) SUCH COURT DOES NOT HAVE SUBJECT MATTER JURISDICTION
OVER SUCH ACTION, SUIT OR PROCEEDING, IN XXX XXXXXX XX XXX
XXXXX XX XXX XXXX SITTING IN THE CITY OF NEW YORK, AND EACH
PARTY HEREBY IRREVOCABLY ACCEPTS AND SUBMITS TO THE
JURISDICTION OF EACH OF THE AFORESAID COURTS IN PERSONAM,
WITH RESPECT TO ANY SUCH ACTION, SUIT OR PROCEEDING
(INCLUDING CLAIMS FOR INTERIM RELIEF, COUNTERCLAIMS, ACTIONS
WITH MULTIPLE DEFENDANTS AND ACTIONS IN WHICH SUCH PARTY IS
IMPLED). EACH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES
ANY RIGHT THAT IT MAY HAVE TO A JURY TRIAL IN ANY LEGAL
ACTION, SUIT OR PROCEEDING WITH RESPECT TO, OR ARISING OUT
OF OR IN CONNECTION WITH THIS AGREEMENT.
(c) EACH OF FT AND DT HEREBY IRREVOCABLY
DESIGNATES CT CORPORATION SYSTEM (IN SUCH CAPACITY, THE
"PROCESS AGENT"), WITH XX XXXXXX XX 0000 XXXXXXXX, XXX XXXX,
XXX XXXX 00000, AS ITS DESIGNEE, APPOINTEE AND AGENT TO
RECEIVE, FOR AND ON ITS BEHALF SERVICE OF PROCESS IN SUCH
JURISDICTION IN ANY LEGAL ACTION OR PROCEEDINGS WITH RESPECT
TO THIS AGREEMENT, AND SUCH SERVICE SHALL BE DEEMED COMPLETE
UPON DELIVERY THEREOF TO THE PROCESS AGENT, PROVIDED THAT IN
THE CASE OF ANY SUCH SERVICE UPON THE PROCESS AGENT, THE
PARTY EFFECTING SUCH SERVICE SHALL ALSO DELIVER A COPY
THEREOF TO FT AND DT IN THE MANNER PROVIDED IN SECTION 5.2.
FT AND DT SHALL TAKE ALL SUCH ACTION AS MAY BE NECESSARY TO
CONTINUE SAID APPOINTMENT IN FULL FORCE AND EFFECT OR TO
APPOINT ANOTHER AGENT SO THAT FT AND DT WILL AT ALL TIMES
HAVE AN AGENT FOR SERVICE OF PROCESS FOR THE ABOVE PURPOSES
IN NEW YORK, NEW YORK. IN THE EVENT OF THE TRANSFER OF ALL
OR SUBSTANTIALLY ALL OF THE ASSETS AND BUSINESS OF THE
PROCESS AGENT TO ANY OTHER CORPORATION BY CONSOLIDATION,
MERGER, SALE OF ASSETS OR OTHERWISE, SUCH OTHER CORPORATION
SHALL BE SUBSTITUTED HEREUNDER FOR THE PROCESS AGENT WITH
THE SAME EFFECT AS IF NAMED HEREIN IN PLACE OF CT
CORPORATION SYSTEM. EACH OF FT AND DT FURTHER IRREVOCABLY
CONSENTS TO THE SERVICE OF PROCESS OUT OF ANY OF THE
AFOREMENTIONED COURTS IN ANY SUCH ACTION OR PROCEEDING BY
THE MAILING OF COPIES THEREOF BY REGISTERED AIRMAIL, POSTAGE
PREPAID, TO SUCH PARTY AT ITS ADDRESS SET FORTH IN THIS
AGREEMENT, SUCH SERVICE OF PROCESS TO BE EFFECTIVE UPON
ACKNOWLEDGMENT OF RECEIPT OF SUCH REGISTERED MAIL. NOTHING
HEREIN SHALL AFFECT THE RIGHT OF ANY PARTY TO SERVE PROCESS
IN ANY OTHER MANNER PERMITTED BY APPLICABLE LAW. EACH OF FT
AND DT EXPRESSLY ACKNOWLEDGES THAT THE FOREGOING WAIVER IS
INTENDED TO BE IRREVOCABLE UNDER THE LAWS OF THE STATE OF
NEW YORK AND OF THE UNITED STATES OF AMERICA.
(d) EACH PARTY AGREES THAT MONEY DAMAGES WOULD
NOT BE A SUFFICIENT REMEDY FOR THE OTHER PARTIES FOR ANY
BREACH OF THIS AGREEMENT BY IT, AND THAT IN ADDITION TO ALL
OTHER REMEDIES THE OTHER PARTIES MAY HAVE, THEY SHALL BE
ENTITLED TO SPECIFIC PERFORMANCE AND TO INJUNCTIVE OR OTHER
EQUITABLE RELIEF AS A REMEDY FOR ANY SUCH BREACH TO THE
EXTENT PERMITTED BY APPLICABLE LAW. EACH PARTY AGREES NOT
TO OPPOSE THE GRANTING OF SUCH RELIEF IN THE EVENT A COURT
DETERMINES THAT SUCH BREACH HAS OCCURRED, AND AGREES TO
WAIVE ANY REQUIREMENT FOR THE SECURING OR POSTING OF ANY
BOND IN CONNECTION WITH SUCH REMEDY.
Section 5.8. Severability. The invalidity or
unenforceability of any provision hereof in any jurisdiction
will not affect the validity or enforceability of the
remainder hereof in that jurisdiction or the validity or
enforceability of this Agreement, including that provision,
in any other jurisdiction. To the extent permitted by
Applicable Law, each Party waives any provision of
Applicable Law that renders any provision hereof prohibited
or unenforceable in any respect. If any provision of this
Agreement is held to be unenforceable for any reason, to the
extent permitted by Applicable Law it shall be adjusted
rather than voided, if possible, in order to achieve the
intent of the Parties to the extent possible.
Section 5.9. Translation. The parties hereto have
negotiated this Agreement in the English language, and have
prepared successive drafts and the definitive text of this
Agreement in the English language. For purposes of
complying with loi n 94-665 du 4 aout 1994 relative a
l'emploi de la langue francaise, the parties hereto have
prepared a French version of this Agreement, which French
version was executed and delivered simultaneously with the
execution and delivery of the English version hereof. The
parties deem the French and English versions of this
Agreement to be equally authoritative.
Section 5.10. Counterparts. This Agreement may be
executed in one or more counterparts each of which when so
executed and delivered will be deemed an original but all of
which will constitute one and the same Agreement.
Section 5.11. Waiver of Immunity. Each of FT and DT
agrees that, to the extent that it or any of its property is
or becomes entitled at any time to any immunity on the
grounds of sovereignty or otherwise based upon its status as
an agency or instrumentality of government from any legal
action, suit or proceeding or from setoff or counterclaim
relating to this Agreement from the jurisdiction of any
competent court, from service of process, from attachment
prior to judgment, from attachment in aid of execution of a
judgment, from execution pursuant to a judgment or arbitral
award or from any other legal process in any jurisdiction,
it, for itself and its property expressly, irrevocably and
unconditionally waives, and agrees not to plead or claim,
any such immunity with respect to such matters arising with
respect to this Agreement or the subject matter hereof
(including any obligation for the payment of money). Each
of FT and DT agrees that the waiver in this provision is
irrevocable and is not subject to withdrawal in any
jurisdiction or under any statute, including the Foreign
Sovereign Immunities Act, 28 U.S.C. Section 1602, et seq. The
foregoing waiver shall constitute a present waiver of
immunity at any time any action is initiated against FT or
DT with respect to this Agreement.
Section 5.12. Remedies. In addition to any other
remedies which may be available to Sprint (including any
remedies which Sprint may have at law or in equity):
(a) Each of FT and DT agrees that Sprint shall
have no obligation to honor transfers of Sprint Voting
Securities or other equity interests in Sprint to FT, DT or
any of their respective Affiliates or Associates which would
cause any of FT, DT and their respective Affiliates or
Associates to Beneficially Own Sprint Voting Securities or
other equity interests in Sprint in violation of this
Agreement, any such transfers shall be void and of no
effect, and Sprint shall be entitled to instruct any
transfer agent or agents for the equity interests in Sprint
to refuse to honor such transfers; and
(b) FT and DT acknowledge the provisions set
forth in ARTICLE SIXTH, Section 2.5 of the Articles, ARTICLE
SIXTH, Section 8.5(b) of the Articles, and Section 3.5 and
Article VIII of the Amended and Restated Stockholders'
Agreement relating to the consequences of a breach of
certain provisions of this Agreement or any Qualified
Subsidiary Standstill Agreement or to the consequences of
certain actions taken by a Government Affiliate, Qualified
Stock Purchaser, Strategic Investor or Related Company.
IN WITNESS WHEREOF, Sprint, FT and DT have caused their
respective duly authorized officers to execute this
Agreement as of the day and year first above written.
SPRINT CORPORATION
By:
Name:
Title:
FRANCE TELECOM S.A.
By:
Name:
Title:
DEUTSCHE TELEKOM AG
By:
Name:
Title:
Exhibits to Amended and Restated Standstill Agreement
Exhibit A Qualified Subsidiary Standstill Agreement
Exhibit B Strategic Investor Standstill Agreement
