Exhibit 2
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AMENDED AND RESTATED
REGISTRATION RIGHTS AGREEMENT
AMONG
FRANCE TELECOM S.A.,
DEUTSCHE TELEKOM AG
AND
SPRINT CORPORATION
Dated as of ___________, 1998
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AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT, dated
as of ____________, 0000 (xxx "Xxxxxxxxx"), xxxxx Xxxxxx Telecom
S.A., a societe anonyme organized under the laws of France
("FT"); Deutsche Telekom AG, an Aktiengesellschaft organized
under the laws of Germany ("DT"); and Sprint Corporation, a
corporation organized under the laws of Kansas (the "Company").
RECITALS
WHEREAS, 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, in connection with the transactions contemplated
by the Investment Agreement, Sprint, FT and DT entered into a
Registration Rights Agreement dated as of January 31, 1996 (the
"Original Registration Rights 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 $ per share, of Sprint; and
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, intending to be
legally bound, hereby agree that the Original Registration Rights
Agreement is hereby amended and restated in its entirety as
follows:
Section 1. Registration under the Securities Act.
Section 1.1 Registration on Request. (a) Request. Subject
to Article II of the Amended and Restated Stockholders'
Agreement, at any time, upon the written request of the holders
of a majority of the Eligible Securities then outstanding
requesting that the Company effect the registration under the
Securities Act of a specified number of Eligible Securities, the
Company shall promptly give written notice of such requested
registration to all holders of Eligible Securities and thereupon
the Company shall use its reasonable efforts to effect the
registration under the Securities Act of the Eligible Securities
which the Company has been so requested to register by the
Selling Stockholders, for disposition for cash in accordance with
the intended method or methods of disposition specified by the
Selling Stockholders (which method of disposition shall be in
accordance with the registration requirements of the United
States securities laws), provided that (i) the Company shall not
be required to effect any registration pursuant to this Section
1.1 if during the twelve-month period immediately preceding such
request for registration the Company has previously effected a
registration pursuant to this Section 1.1, (ii) subject to
Section 1.1(g), the Company shall not be required to effect any
registration pursuant to this Section 1.1 after seven
registrations requested by holders of Eligible Securities
pursuant to this Section 1.1 shall have been effected unless, as
to no more than three additional registrations, the holders of a
majority of the Eligible Securities then outstanding deliver at
any time a notice to the effect that such holders agree to pay
all Registration Expenses in connection with such additional
three registrations; provided, however, that if the Company
proposes to redeem pursuant to ARTICLE SIXTH, Section 2.2 of the
Articles shares of Class A Stock from the Class A Holders in an
amount in excess of 0.25% of the Voting Securities of the
Company, and the Selling Stockholders sell such shares pursuant
to Section 2.11 or 7.4 of the Amended and Restated Stockholders'
Agreement in a registered offering pursuant to which the Selling
Stockholders have exercised a demand registration right, such
registration shall not count toward the maximum number of
registrations provided in this clause (ii) to the proviso to
Section 1.1(a), (iii) the Company shall not be obligated to cause
any special audit to be undertaken with any such registration,
and (iv) the Company shall not be required to effect any
registration requested by holders of Eligible Securities pursuant
to this Section 1.1 unless either (A) the aggregate market value
of all Eligible Securities so requested to be registered exceeds
$200 million on the date of delivery of the request for
registration based on the average closing price per share on the
preceding ten Business Days of the Eligible Securities to be
registered (the "Relevant Average Closing Price"), or (B) the
registration relates to the sale of Post-Restructuring Series 3
PCS Shares and both (i) the aggregate market value of the
Post-Restructuring Series 3 PCS Shares so requested to be
registered exceeds $100 million on the date of delivery of the
request for registration based on the Relevant Average Closing
Price with respect to the Series 1 PCS Stock, and (ii) the
registration involves at least the lesser of (x)
Post-Restructuring Series 3 PCS Shares with an aggregate market
value of at least $200 million on the date of delivery of the
request for registration based on the Relevant Average Closing
Price with respect to the Series 1 PCS Stock, and (y) all of the
Post-Restructuring Series 3 PCS Shares owned by the Class A
Holders.
(b) Withdrawal. The Selling Stockholders shall have the
right to request withdrawal of any registration statement filed
pursuant to this Section 1.1 (and the Company shall so withdraw
such registration statement) so long as such registration
statement has not become effective, provided that, in such case,
such Selling Stockholder shall pay all related out-of-pocket
Registration Expenses reasonably incurred by the Company unless a
registration statement shall be effected pursuant to this Section
1.1 within 270 days after such withdrawal. The Selling
Stockholders, in accordance with Section 2.5 of the Amended and
Restated Stockholders' Agreement, at any time and from time to
time, may change the Planned Date of any registration
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statement to any date not more than 120 days after the original
Planned Date with respect to such registration statement.
(c) Effective Registration Statement. A registration
requested pursuant to this Section 1.1 shall not be deemed to be
effected (i) if a registration statement with respect thereto
shall not have become effective under the Securities Act
(including, without limitation, because of a withdrawal of such
registration statement by the Selling Stockholders prior to the
effectiveness thereof pursuant to Section 1.1(b) hereof), (ii)
if, after it has become effective, such registration is
interfered with for any reason by any stop order, injunction or
other order or requirement of the Commission or any other
Governmental Authority, and the result of such interference is to
prevent the Selling Stockholders from disposing of more than
one-third of the Eligible Securities proposed to be sold in
accordance with the intended methods of disposition or the
Company exercises its rights under Section 1.4 and the result is
a delay in the proposed distribution of any Eligible Securities
in excess of 120 days and the Selling Stockholders determine not
to sell Eligible Securities pursuant to such registration as a
result of such delay, or (iii) if the conditions to closing
specified in the purchase agreement or underwriting agreement
entered into in connection with any underwritten offering shall
not be satisfied or waived with the consent of the Selling
Stockholders holding two-thirds of the Eligible Securities that
were to have been sold thereunder, other than as a result of any
breach by any Selling Stockholder or any underwriter of its
obligations thereunder or hereunder.
(d) Registration Statement Form. Registration statements
filed under this Section 1.1 shall be on such form of the
Commission as shall be selected by the Company, and as shall
permit the disposition of the subject Eligible Securities for
cash in accordance with the intended method or methods of
disposition specified by the Selling Stockholders. The Selling
Stockholders may propose that the Company include in a
registration statement additional information or material
specified by any Selling Stockholder and the Company shall make a
good faith determination whether to include such information or
material in such registration statement.
(e) Expenses. Except as otherwise provided herein, the
Company shall pay all Registration Expenses in connection with
any registration requested pursuant to this Section 1.1 and shall
pay such other expenses if and to the extent required by Section
2.5 of the Amended and Restated Stockholders' Agreement.
(f) Selection of Underwriters. If a registration pursuant
to this Section 1.1 relates to an underwritten offering, the
managing or lead underwriter or underwriters shall be an
underwriter or underwriters of internationally recognized
standing selected by the Selling Stockholders holding a majority
of the Eligible Securities proposed to be registered, with the
approval of the Company, which approval shall not be unreasonably
withheld.
(g) Priority in Requested Registrations. If a registration
pursuant to this Section 1.1 involves an underwritten offering,
and the managing or lead underwriter or underwriters shall
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advise the Selling Stockholders in writing (a copy of which shall
be provided to the Company by the Selling Stockholders) that, in
its or their opinion, the number of securities requested to be
included in such registration by the Selling Stockholders, the
Company and any other Person exceeds the number which can be sold
in such offering within a price range acceptable to the Selling
Stockholders, the Company shall include in such registration the
number of securities that the Selling Stockholders are so advised
can be sold in such offering, as follows: (i) (A) if the
registration is effected during the CP Preference Period and
involves the sale of Sprint PCS Stock, unless the Company
exercises its option described in clause (ii) below, (w) first,
the Eligible Securities proposed to be included by the Selling
Stockholders, (x) second, so long as the Cable Partner
Registration Rights Agreement is in effect, any securities
requested to be included in such registration by the Cable
Partners, (y) third, the securities requested to be included in
such registration by the Company, unless otherwise provided in an
agreement between the Company and another Person or Persons, and
(z) fourth, the securities of any other Person or Persons
proposed to be included in such registration, in accordance, as
to the priorities among such other Persons, with the rights
contained in the respective agreements into which such Persons
and the Company have entered, or (B) if the registration is not
effected during the CP Preference Period or does not involve the
sale of Sprint PCS Stock, unless the Company exercises its option
described in clause (ii) below, (x) first, the Eligible
Securities proposed to be included by the Selling Stockholders,
(y) second, the securities requested to be included in such
registration by the Company and, so long as the Cable Partner
Registration Rights Agreement is in effect and the offering
involves the issuance of Sprint PCS Stock, the Cable Partners,
unless otherwise provided in an agreement between the Company and
another Person or Persons, and (z) third, the securities of any
other Person or Persons proposed to be included in such
registration, in accordance, as to the priorities among such
other Persons, with the rights contained in the respective
agreements into which such Persons and the Company have entered
(provided, however, in the case of this clause (B) if the
registration is during the CP Secondary Preference Period and the
Cable Partner Registration Rights Agreement is in effect, unless
the Cable Partners otherwise consent, any shares of PCS Stock
proposed to be included in such registration by the Company, the
proceeds with respect to which will not be allocated to the PCS
Group, shall be third in priority, and the securities of such
other persons shall be fourth in priority), or (ii) at the option
of the Company, (x) first, the Eligible Securities proposed to be
included by the Selling Stockholders and the securities requested
to be included in such registration by the Company and, so long
as the Cable Partner Registration Rights Agreement is in effect
and the offering involves the sale of Sprint PCS Stock, the Cable
Partners, each pro rata in accordance with the number of Eligible
Securities proposed to be included by the Selling Stockholders
and the number of securities so proposed to be included by the
Company and, if applicable, the Cable Partners, respectively, and
(y) second, the securities of any other Person or Persons
proposed to be included in such registration, in accordance, as
to the priorities among such other Persons, with the rights
contained in the respective agreements into which such Persons
and the Company have entered, provided, if the Company selects
the option set forth in clause (ii), such registration shall not
count toward the maximum number of registrations provided in
Section 1.1(a)(ii) if due to the Company's (and, if applicable,
the Cable Partners') participation on a pro rata basis with the
Selling Stockholders, the managing or lead underwriter
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or underwriters determines in its good faith judgment that the
number of securities requested to be included in such
registration by the Selling Stockholders, the Company and, if
applicable, the Cable Partners exceeds the number which can be
sold in such offering within a price range acceptable to the
Selling Stockholders.
(h) Inconsistent Rights. The Company shall not grant to any
holder of its securities any registration rights inconsistent
with the provisions of this Section 1.1.
Section 1.2. Incidental Registration. (a) Right to Include
Eligible Securities. If the Company at any time proposes to
register any shares of its Common Stock, Series 1 FON Stock
(including Series 2 FON Stock that, upon such distribution would
convert into Series 1 FON Stock), Series 1 PCS Stock (including
Series 2 PCS Stock that, upon such distribution would convert
into Series 1 PCS Stock) or other common equity securities under
the Securities Act (other than by a registration on Form S-4 or
S-8 or any successor or similar forms or filed in connection with
an exchange offer or any offering of securities solely to the
Company's existing stockholders or otherwise pursuant to a
dividend reinvestment plan or a dividend reinvestment and stock
purchase plan, and other than pursuant to Section 1.1) for sale
pursuant to an underwritten public offering or other similarly
organized selling effort, whether or not for sale for its own
account, the Company shall give prompt written notice to each
holder of Eligible Securities of its intention to do so and of
the rights of such holders under this Section 1.2. Upon the
written request of any holder of Eligible Securities made within
30 days after the delivery of any such notice (which request
shall specify the Eligible Securities intended to be disposed of
by any holder thereof), the Company shall use its reasonable
efforts to effect the registration under the Securities Act of
all Eligible Securities which the Company has been so requested
to register by the Selling Stockholders, to the extent required
to permit the disposition for cash (in accordance with the
intended methods thereof specified by the Selling Stockholders,
which method of disposition shall be in accordance with United
States securities laws) of the Eligible Securities so to be
registered. If, at any time after giving written notice of its
intention to register any such securities and prior to the
effective date of the registration statement filed in connection
with such registration, the Company shall determine for any
reason not to register or to delay registration of such
securities, the Company may, at its election, give written notice
of such determination to each Selling Stockholder and, thereupon,
(i) in the case of a determination not to register, the Company
need not register any Eligible Securities in connection with such
registration (but shall, in such case, pay the reasonable fees
and expenses of counsel to the Selling Stockholders (excluding
the portion of any fees determined pursuant to the German Fee
Regulations) unless the Company effects a similar registration to
which Sections 1.1 or 1.2 applies within 270 days of the
Company's election not to register), without prejudice, however,
to the rights of the holders of Eligible Securities (including
the Selling Stockholders) to request that such registration be
effected as a registration under Section 1.1, and (ii) in the
case of a determination to delay registering, the Company may
delay registering any Eligible Securities for the same period as
the delay in registering such other securities. No registration
effected under this Section 1.2 shall relieve the Company of its
obligation to effect any registration upon request under Section
1.1.
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(b) Priority in Incidental Registrations. If a registration
pursuant to this Section 1.2 involves an underwritten offering,
and the managing or lead underwriter or underwriters shall advise
the Company in writing (a copy of which shall be provided by the
Company to each Person requesting registration of Eligible
Securities or other securities of the Company), that, in its or
their opinion, the number of securities requested and otherwise
proposed to be included in such registration exceeds the number
that can be sold in such offering within a price range acceptable
to the Company, the Company shall include in such registration,
up to the number of securities that the Company is so advised can
be sold in such offering:
(i) if the registration is a primary registration on
behalf of the Company which is effected during the CP Preference
Period and involves the sale of Sprint PCS Stock, (w) first, the
securities proposed to be included by the Cable Partners pursuant
to the Cable Partner Registration Rights Agreement (if then in
effect), (x) second, the securities proposed to be included by
the Company, (y) third, the Eligible Securities requested to be
included in such registration by the Selling Stockholders and (z)
fourth, the securities of other Persons requested to be included
in such registration;
(ii) if the registration is a primary registration on
behalf of the Company which is effected after the CP Preference
Period or does not involve the sale of Sprint PCS Stock, (x)
first, the securities proposed to be included by the Company, (y)
second, the Eligible Securities proposed to be included in such
registration by the Selling Stockholders and, if the registration
involves the sale of Sprint PCS Stock, the securities requested
to be included by the Cable Partners pursuant to the Cable
Partner Registration Rights Agreement each pro rata in accordance
with the number of Eligible Securities so proposed to be included
(if then in effect), and (z) third, the securities of other
Persons requested to be included in such registration in
accordance with the rights contained in the respective agreements
into which such Persons and the Company have entered (provided,
however, that if the registration is during the CP Secondary
Preference Period and the Cable Partner Registration Rights
Agreement is in effect, unless the Cable Partners otherwise
consent, any shares of PCS Stock proposed to be included in such
registration by the Company, the proceeds with respect to which
will not be allocated to the PCS Group, shall be third in
priority, and the securities of such other persons shall be
fourth in priority); and
(iii) if the registration is a secondary registration
on behalf of a Person or Persons other than the Company or a
holder of Eligible Securities which is effected during the CP
Preference Period and involves the sale of Sprint PCS Stock, (w)
first, the securities proposed to be included by such other
Person or Persons, (x) second, the securities proposed to be
included by the Cable Partners pursuant to the Cable Partner
Registration Rights Agreement (other than the Cable Partner or
Cable Partners, if any, which initiated such secondary
registration), (y) third, the securities of the Company and the
Eligible Securities requested to be included in such registration
by the Selling Stockholders, each pro rata in accordance with the
number of securities proposed to be registered by the Company and
the number of Eligible Securities so requested to be included,
respectively, and (z) fourth, the securities of any other Persons
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requested to be included in such registration in accordance with
the rights contained in the respective agreements into which such
Persons and the Company have entered; and
(iv) if the registration is a secondary registration
on behalf of a Person or Persons other than the Company or a
holder of Eligible Securities which is effected after the CP
Preference Period or does not involve the sale of Sprint PCS
Stock, (w) first, the securities proposed to be included by such
other Person or Persons, (x) second, if such party exercising
demand registration rights is a Cable Partner, then any other
Cable Partners exercising incidental registration rights pursuant
to the Cable Partner Registration Rights Agreement, (y) third,
the securities of the Company, the Eligible Securities requested
to be included in such registration by the Selling Stockholders
and, if the registration involves the sale of Sprint PCS Stock
but the party exercising demand registration rights is not a
Cable Partner, the securities requested to be included by the
Cable Partners pursuant to the Cable Partner Registration Rights
Agreement, each pro rata in accordance with the number of
securities proposed to be registered by the Company and the
number of Eligible Securities and other securities so requested
to be included, respectively, and (z) third, the securities of
any other Persons requested to be included in such registration
in accordance with the rights contained in the respective
agreements into which such Persons and the Company have entered;
(provided, however, that if the registration is during the CP
Secondary Preference Period and the Cable Partner Registration
Rights Agreement is in effect, unless the Cable Partners
otherwise consent, any shares of PCS Stock proposed to be
included in such registration by the Company, the proceeds with
respect to which will not be allocated to the PCS Group, shall be
third in priority, and the securities of such other persons shall
be fourth in priority).
Notwithstanding the aforesaid, if at any time the Company
proposes to effect a registration under this Section 1.2 the
Selling Stockholders are entitled to effect a disposition of
Eligible Securities pursuant to Rule 144(k) (or any successor
provision) under the Securities Act, the aforesaid priorities
shall be changed so that the Eligible Securities proposed to be
included by the Selling Stockholders shall have the lowest
priority of all securities proposed to be registered in such
registration.
(c) Inconsistent Rights. The Company shall not grant to any
holder of its securities any registration rights inconsistent
with the provisions of this Section 1.2.
(d) Expenses. Except as otherwise provided in this
Agreement, the Company shall pay all Registration Expenses in
connection with any registration requested pursuant to this
Section 1.2.
(e) Selection of Underwriters. If an incidental
registration pursuant to this Section 1.2 involves an
underwritten offering, the managing or lead underwriter or
underwriters shall be selected by the Company, unless otherwise
provided in an agreement between the Company and another Person
or Persons.
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Section 1.3 Registration Procedures. If and whenever the
Company is required to use its reasonable efforts to effect the
registration of any Eligible Securities under the Securities Act
as provided in Sections 1.1 and 1.2, the Company shall as
expeditiously as possible:
(a) prepare and as soon thereafter as possible file with
the Commission the requisite registration statement to effect
such registration and thereafter use its reasonable efforts to
cause such registration statement to become effective, provided
that before filing such registration statement or any amendments
thereto, the Company shall furnish to the counsel to the Selling
Stockholders copies of all such documents proposed to be filed,
which documents will be subject to the review of such counsel;
(b) prepare and file with the Commission such amendments
and supplements to such registration statement and the prospectus
used in connection therewith as may be necessary to keep such
registration statement continuously effective for a period of
either (i) not less than 120 days (subject to extension pursuant
to the last paragraph of this Section 1.3) or, if such
registration statement relates to an underwritten offering, such
longer period as in the opinion of counsel for the underwriters a
prospectus is required by law to be delivered in connection with
sales of securities by an underwriter or dealer; or (ii) such
shorter period as is required for the disposition of all of the
securities covered by such registration statement in accordance
with the intended methods of disposition by the seller or sellers
thereof set forth in such registration statement (but in any
event not before the expiration of any longer period of
effectiveness required under the Securities Act), and to comply
with the provisions of the Securities Act with respect to the
disposition of all securities covered by such registration
statement until such time as all of such securities have been
disposed of in accordance with the intended methods of
disposition by the seller or sellers thereof set forth in such
registration statement;
(c) furnish to each seller of securities covered by such
registration statement such number of conformed copies of such
registration statement and of each such amendment and supplement
thereto (in each case including all exhibits), such number of
copies of the prospectus contained in such registration statement
(including each preliminary prospectus and any summary
prospectus) and any other prospectus filed under Rule 424 under
the Securities Act, in conformity with the requirements of the
Securities Act, and such other documents in order to facilitate
the disposition of such securities owned by such seller in
accordance with such seller's intended method of disposition, as
such seller may reasonably request, but only during such time as
the Company shall be required under the provisions hereof to
cause such registration statement to remain current;
(d) use its reasonable efforts to register or qualify
securities covered by such registration statement under such
other securities or blue sky laws of such jurisdictions in the
United States as each seller thereof shall reasonably request, to
keep such registration or qualification in effect for so long as
such registration statement remains in effect, and to take any
other action which may be reasonably necessary to enable such
seller to consummate the disposition in such jurisdictions in the
United States of the securities owned by such seller,
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provided that the Company shall not for any such purpose be
required to (i) qualify generally to do business as a foreign
corporation in any jurisdiction where it would not otherwise be
required to qualify but for the requirements of this subsection
(d), (ii) consent to general service of process in any such
jurisdiction, (iii) subject itself to taxation in any such
jurisdiction or (iv) conform its capitalization or the
composition of its assets at the time to the securities or blue
sky laws of such jurisdiction;
(e) use its reasonable efforts to cause all securities
covered by such registration statement to be registered with or
approved by such other United States Governmental Authorities as
may be necessary by virtue of the business and operations of the
Company to enable the sellers to consummate the disposition
thereof;
(f) use its reasonable efforts to furnish to each Selling
Stockholder a signed counterpart, addressed to such Selling
Stockholder (and the underwriters, if any), of
(i) an opinion of counsel for the Company, dated the
effective date of such registration statement (and, if such
registration includes an underwritten public offering, dated the
date of the closing under the underwriting agreement), reasonably
satisfactory in form and substance to such Selling Stockholder,
and
(ii) a "comfort" letter, dated the effective date of
such registration statement (and, if such registration includes
an underwritten public offering, dated the date of the closing
under the underwriting agreement), reasonably satisfactory in
form and substance to such Selling Stockholder, signed by the
independent public accountants who have certified the Company's
financial statements included in such registration statement,
covering substantially the same matters with respect to such
registration statement (and the prospectus included therein) and,
in the case of the accountants' letter, with respect to events
subsequent to the date of such financial statements, as are
customarily covered in opinions of issuer's counsel and in
accountants' letters delivered to the underwriters in
underwritten public offerings of securities;
(g) furnish to each such Selling Stockholder at least five
Business Days prior to the filing thereof a copy of any amendment
or supplement to such registration statement or prospectus (other
than any amendment or supplement in the form of a filing which
the Company is required to make pursuant to the Exchange Act) and
not file any such amendment or supplement to which any such
Selling Stockholder shall have reasonably objected on the grounds
that, in the opinion of counsel to such Selling Stockholder, such
amendment or supplement does not comply in all material respects
with the requirements of the Securities Act;
(h) notify each Selling Stockholder, at any time when a
prospectus relating thereto is required to be delivered under the
Securities Act, upon discovery that, or upon the discovery of the
happening of any event as a result of which, the prospectus
included in such registration
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statement, as then in effect, includes an untrue statement of a
material fact or omits to state any material fact required to be
stated therein or necessary to make the statements therein not
misleading in the light of the circumstances under which they
were made, and at the request of any such Selling Stockholder
promptly prepare and furnish to such Selling Stockholder a
reasonable number of copies of a supplement to or an amendment of
such prospectus as may be necessary so that, as thereafter
delivered to the purchasers of such securities, such prospectus
shall not include an untrue statement of a material fact or omit
to state a material fact required to be stated therein or
necessary to make the statements therein not misleading in the
light of the circumstances under which they were made;
(i) otherwise use its reasonable efforts to comply with all
applicable rules and regulations of the Commission, and make
available to its security holders, as soon as reasonably
practicable, an earnings statement covering a period of at least
twelve months beginning after the effective date of such
registration statement, which earnings statement shall satisfy
the provisions of Section 11(a) of the Securities Act;
(j) use its reasonable efforts to provide customary
assistance to the underwriters in their selling efforts and
presentations to prospective investors; and
(k) use its reasonable efforts to cause all such Eligible
Securities covered by such registration statement to be listed on
a national securities exchange or on the National Association of
Securities Dealers, Inc. National Market System (if such Eligible
Securities are not already so listed), and on each other
securities exchange on which similar securities issued by the
Company are then listed, if the listing of such Eligible
Securities is then permitted under the rules of such exchange.
The Company may require each Selling Stockholder to furnish
the Company in writing for inclusion in the registration
statement such information regarding such Selling Stockholder and
the distribution of such Eligible Securities being sold as the
Company may from time to time reasonably request.
Each Selling Stockholder agrees by becoming a holder of
Eligible Securities that upon receipt of any notice from the
Company of the happening of any event of the kind described in
subsection (h) of this Section 1.3, such Selling Stockholder
shall forthwith discontinue such Selling Stockholder's
disposition of Eligible Securities pursuant to the registration
statement relating to such Eligible Securities until such Selling
Stockholder's receipt of the copies of the supplemented or
amended prospectus contemplated by subsection (h) of this Section
1.3 and, if so directed by the Company, such Selling Stockholder
shall use its reasonable efforts to deliver to the Company (at
the Company's expense) all copies, other than permanent file
copies then in such Selling Stockholder's possession, of the
prospectus relating to such Eligible Securities current at the
time of receipt of such notice. If the Company shall give any
such notice, the applicable time period mentioned in subsection
(b) of this Section 1.3 during which a registration statement is
to remain effective shall be extended by the number of days
during the period from
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and including the date of the giving of such notice pursuant to
subsection (h) of this Section 1.3, to and including the date
when each Selling Stockholder shall have received the copies of
the supplemented or amended prospectus contemplated by subsection
(h) of this Section 1.3.
Section 1.4. Delay of Filing or Sales. (a) The Company
shall have the right, upon giving notice to the Selling
Stockholders of the exercise of such right, to delay filing a
registration statement or to require such Selling Stockholders
not to sell any Eligible Securities pursuant to a registration
statement for a period of 270 days from the date on which such
notice is given, or such shorter period of time as may be
specified in such notice or in a subsequent notice delivered by
the Company to such effect prior to or during the effectiveness
of the registration statement, if (i) the Company is engaged in
or proposes to engage in discussions or negotiations with respect
to, or has proposed or taken a substantial step to commence, or
there otherwise is pending, any merger, acquisition, other form
of business combination, divestiture, tender offer, financing or
other transaction, or there is an event or state of facts
relating to the Company, in each case which is material to the
Company (any such negotiation, step, event or state of facts
being herein called a "Material Activity"), (ii) such Material
Activity would, in the opinion of counsel for the Company,
require disclosure so as to permit the Eligible Securities to be
sold in compliance with law, and (iii) such disclosure would, in
the reasonable judgment of the Company, be adverse to its
interests, provided that the Company shall have no right to delay
the filing of a registration statement or the selling of Eligible
Securities if at any time during the twelve months preceding the
date on which such notice was given the Company had delayed
either the filing of a registration statement that included
Eligible Securities pursuant to Section 1.1(a) or the selling of
Eligible Securities pursuant to a registration statement filed in
accordance with Section 1.1(a).
(b) The Company shall have no obligation to include in any
notice contemplated by Section 1.4(a) any reference to or
description of the facts based upon which the Company is
delivering such notice. The Company shall pay all Registration
Expenses and all reasonable fees and expenses of counsel for the
Selling Stockholders (excluding the portion of any fees
determined pursuant to the German Fee Regulations) with respect
to any registration of Eligible Securities or sales thereof that
has been delayed for more than 90 days pursuant to this Section
1.4, unless the Company effects a similar registration to which
Section 1.1 or 1.2 applies within 270 days of the first delivery
of a notice contemplated by Section 1.4(a).
Section 1.5. Underwritten Offerings. (a) Requested
Underwritten Offerings. If requested by the underwriters of any
underwritten offering of Eligible Securities pursuant to a
registration requested under Section 1.1, the Company shall enter
into an underwriting agreement with such underwriters for such
offering. Such agreement shall be reasonably satisfactory in
substance and form to each Selling Stockholder, the Company and
the underwriters and shall contain representations, warranties,
indemnities and agreements customarily included by an issuer in
underwriting agreements with respect to secondary distributions,
including, without limitation, indemnities to the effect and to
the extent provided in Section 1.7. The Selling Stockholders
shall be parties to such underwriting agreement and may, at their
option, require
11
that any or all of the conditions precedent to the obligations of
such underwriters under such underwriting agreement be conditions
precedent to the obligations of such Selling Stockholders.
(b) Incidental Underwritten Offerings. If the Company at
any time proposes to register any of its Common Stock, Series 1
FON Stock (including Series 2 FON Stock that, upon such
distribution would convert into Series 1 FON Stock), Series 1 PCS
Stock (including Series 2 PCS Stock that, upon such distribution
would convert into Series 1 PCS Stock) or other common equity
securities under the Securities Act as contemplated by Section
1.2 and such securities are to be distributed by or through one
or more underwriters, the Company shall, if requested by the
Selling Stockholders as provided in Section 1.2 and subject to
the provisions of Section 1.2(b), use its reasonable efforts to
arrange for such underwriters to include those Eligible
Securities designated by the Selling Stockholders among the
securities to be distributed by such underwriters. The Selling
Stockholders shall be parties to the underwriting agreement
between the Company and such underwriters.
(c) Holdback Agreements. (i) Each holder of Eligible
Securities agrees by becoming a holder of such Eligible
Securities not to effect any public sale or distribution of any
equity securities of the Company, or any securities convertible
into or exchangeable or exercisable for such securities,
including a sale pursuant to Rule 144 under the Securities Act
(or any similar provision then in force), during the ten days
before and the 90 days after any underwritten registration
pursuant to Section 1.1 or 1.2 with respect to which such holder
has a right to participate has become effective, except as part
of such underwritten registration.
(ii) The Company agrees not to effect any public sale or
distribution of its equity securities or securities convertible
into or exchangeable or exercisable for any of such securities
during the ten days before and the 90 days after any underwritten
registration pursuant to Section 1.1 or 1.2 has become effective,
except as part of such underwritten registration and except
pursuant to (v) registrations on Form S-4 or S-8, or any
successor or similar forms thereto or otherwise pursuant to a
dividend reinvestment plan or a dividend reinvestment and stock
purchase plan; (w) sales upon exercise or exchange, by the holder
thereof, of options, warrants or convertible securities; (x) any
other agreement to issue equity securities or securities
convertible into or exchangeable or exercisable for any of such
securities in effect on the date the Selling Stockholders deliver
to the Company the request to register, or include in a
registration, Eligible Securities under Section 1.1 or Section
1.2, as the case may be; (y) any acquisition or similar
transaction; and (z) any dividend reinvestment plan or employee
benefit plan (if necessary for such plan to fulfill its funding
obligations in the ordinary course).
Section 1.6. Preparation; Reasonable Investigation. In
connection with the preparation and filing of each registration
statement under the Securities Act pursuant to this Agreement in
which the Selling Stockholders include Eligible Securities in
such registration, the Company shall (a) give the Selling
Stockholders, their underwriters, if any, and their respective
advisors and counsel the opportunity to participate in the
preparation of such registration statement, each prospectus
included therein or filed with the Commission, and each amendment
thereof or
12
supplement thereto (other than any amendment or supplement in the
form of a filing which the Company is required to make pursuant
to the Exchange Act), (b) give the Selling Stockholders and their
respective advisors and counsel such access to its books and
records and such opportunities to discuss the business of the
Company with its officers and the independent public accountants
who have certified its financial statements as shall be
necessary, in the opinion of such Selling Stockholders' counsel,
to conduct a reasonable investigation within the meaning of the
Securities Act, and (c) consult with the Selling Stockholders
concerning the selection of underwriter's counsel for such
offering and registration.
Section 1.7. Indemnification. (a) Indemnification by the
Company. In the event of any registration of any securities of
the Company under the Securities Act pursuant to Section 1.1 or
1.2, the Company shall, and hereby does, indemnify and hold
harmless each Selling Stockholder, its directors, officers,
employees, agents and advisors, and each other Person, if any,
who controls such Selling Stockholder within the meaning of the
Securities Act, against any losses, claims, damages or
liabilities, joint or several, to which each such Person may
become subject under the Securities Act or otherwise, insofar as
such losses, claims, damages or liabilities (or actions or
proceedings, whether commenced or threatened, in respect thereof)
arise out of or are based upon
(i) any untrue statement or alleged untrue statement
of any material fact contained (x) in any registration statement
under which such securities were registered under the Securities
Act, any preliminary prospectus, final prospectus or summary
prospectus contained therein or used in connection with the
offering of securities covered thereby, or any amendment or
supplement thereto, or (y) in any application or other document
or communication (in this Section 1.7 collectively called an
"application") executed by or on behalf of the Company or based
upon written information furnished by or on behalf of the Company
filed in any jurisdiction in order to qualify any securities
covered by such registration statement under the "blue sky" or
securities laws thereof, or
(ii) any omission or alleged omission to state therein
a material fact required to be stated therein or necessary to
make the statements therein not misleading,
and the Company will reimburse such Person for any reasonable
legal or any other expenses (excluding the portion of any legal
fees determined pursuant to the German Fee Regulations) incurred
by it in connection with investigating or defending any such
loss, claim, liability, action or proceeding, provided that the
Company shall not be liable in any such case to the extent that
any such loss, claim, damage, liability (or action or proceeding
in respect thereof) or expense arises out of or is based upon an
untrue statement or alleged untrue statement, or omission or
alleged omission, made in such registration statement, any such
preliminary prospectus, final prospectus, summary prospectus,
amendment or supplement, or in any application, in reliance upon
and in conformity with written information prepared and furnished
to the Company by any Selling Stockholder or, in the case of a
registration under Section 1.1 hereof, any underwriter
specifically for use in the preparation thereof and provided,
further, that the Company shall not
13
be liable to any Person who participates as an underwriter (other
than the Selling Stockholders insofar as they may be deemed
underwriters within the meaning of the Securities Act) in any
such registration or any other Person who controls such
underwriter within the meaning of the Securities Act, in any such
case to the extent that any such loss, claim, damage, liability
(or action or proceeding in respect thereof) or expense arises
out of such Person's failure to send or give a copy of the final
prospectus, as the same may be then supplemented or amended, to
the Person asserting an untrue statement or alleged untrue
statement or omission or alleged omission at or prior to the
written confirmation of the sale of the securities to such Person
if such statement or omission was timely corrected in such final
prospectus. Such indemnity shall remain in full force and effect
regardless of any investigation made by or on behalf of any such
Person and shall survive the transfer of such securities by such
Person. The Company shall not be obligated to pay the fees and
expenses of more than one counsel or firm of counsel for all
parties indemnified in respect of a claim for each jurisdiction
in which such counsel is required unless a conflict of interest
exists between such indemnified party and any other indemnified
party in respect of such claim.
(b) Indemnification by the Selling Stockholders. The
Company may require, as a condition to including any Eligible
Securities held by a Selling Stockholder in any registration
statement filed pursuant to Sections 1.1 and 1.2, that the
Company shall have received an undertaking satisfactory to it
from such Selling Stockholder, to indemnify and hold harmless (in
the same manner and to the same extent as set forth in subsection
(a) of this Section 1.7) the Company, each director, officer,
employee, agent and advisor of the Company and each other Person,
if any, who controls the Company within the meaning of the
Securities Act, with respect to any untrue statement or alleged
untrue statement in or omission or alleged omission from such
registration statement, any preliminary prospectus, final
prospectus or summary prospectus contained therein, or any
amendment or supplement thereto, or any application, if such
untrue statement or alleged untrue statement or omission or
alleged omission was made in reliance upon and in conformity with
written information prepared and furnished to the Company by such
Selling Stockholder specifically for use in the preparation of
such registration statement, preliminary prospectus, final
prospectus, summary prospectus, amendment or supplement, or such
application. Such indemnity shall remain in full force and
effect, regardless of any investigation made by or on behalf of
the Company or any such director, officer, employee, agent,
advisor or controlling Person and shall survive the transfer of
such securities by such Selling Stockholder. The indemnity
provided by each Selling Stockholder under this Section 1.7(b)
shall be only with respect to its own misstatements and omissions
and not with respect to those of any other seller or prospective
seller of securities, and not jointly and severally, and shall be
limited in amount to the net amount of proceeds received by such
Selling Stockholder from the sale of Eligible Securities pursuant
to such registration statement.
(c) Notices of Claims, etc. Promptly after receipt by an
indemnified party of notice of the commencement of any action or
proceeding involving a claim referred to in the preceding
subsections of this Section 1.7, such indemnified party will, if
a claim in respect thereof is to be made against an indemnifying
party, give written notice to the latter of the commencement of
14
such action, provided that the failure of any indemnified party
to give notice as provided herein shall not relieve the
indemnifying party of its obligations under the preceding
subsections of this Section 1.7, except to the extent that the
indemnifying party is actually prejudiced by such failure to give
notice. In case any such action is brought against an indemnified
party, unless a conflict of interest between such indemnified and
indemnifying parties exists in respect of such claim, the
indemnifying party shall be entitled to participate in and to
assume the defense thereof, jointly with any other indemnifying
party similarly notified to the extent that it may wish, with
counsel reasonably satisfactory to such indemnified party, and
after notice from the indemnifying party to such indemnified
party of its election so to assume the defense thereof, if the
indemnifying party is entitled to do so hereunder, the
indemnifying party shall not be liable to such indemnified party
for any legal or other expenses subsequently incurred by the
latter in connection with the defense thereof other than
reasonable costs of investigation. No indemnifying party shall,
without the consent of the indemnified party, consent to entry of
any judgment or enter into any settlement which does not include
as an unconditional term thereof the giving by the claimant or
plaintiff to such indemnified party of a release from all
liability in respect to such claim or litigation.
(d) Other Remedies. If for any reason the indemnity set
forth in the preceding subsections of this Section 1.7 is
unavailable, or is insufficient to hold harmless an indemnified
party, other than by reason of the exceptions provided therein,
then the indemnifying party shall contribute to the amount paid
or payable by the indemnified party as a result of such losses,
claims, damages or liabilities in such proportion as is
appropriate to reflect the relative fault of the indemnifying
party on the one hand and the indemnified party on the other hand
in connection with the offering of securities and the statements
or omissions or alleged statements or omissions which resulted in
such loss, claim, damage, or liability, as well as any other
relevant equitable considerations. The relative fault of the
indemnifying party and of the indemnified party shall be
determined by reference to, among other things, whether the
untrue statement of a material fact or the omission to state a
material fact relates to information supplied by the indemnifying
party or by the indemnified party and the parties' relative
intent, knowledge, access to information and opportunity to
correct or prevent such statements or omissions. No party shall
be liable for contribution under this subsection (d) except to
the extent and under such circumstances as such party would have
been liable to indemnify under this Section 1.7 if such
indemnification were enforceable under applicable law.
Section 1.8. Effect of Other Agreements Among the Parties
Hereto. Nothing in this Agreement shall be construed to alter in
any manner whatsoever any rights or obligations of the Company,
FT, DT, any Qualified Subsidiary or any Qualified Stock Purchaser
contained in any other agreement among such Persons entered into
concurrently herewith, including, but not limited to, the
restrictions on transfer of shares of capital stock of the
Company contained in Article II of the Amended and Restated
Stockholders' Agreement and the provisions of Section 7.5(a) of
the Amended and Restated Stockholders' Agreement. In addition,
any sales of Eligible Securities made pursuant to this Agreement
shall be effected only in strict accordance with Article II and
Section 7.5(a) of the Amended and Restated Stockholders
Agreement.
15
Section 2. Definitions. Capitalized terms used herein and
not defined in this Section 2 shall have the meanings set forth
in the Amended and Restated Stockholders' Agreement, dated as of
__________, 1998, by and among FT, DT and the Company. As used
herein, the following terms have the following respective
meanings:
Commission: The Securities and Exchange Commission or any
other Federal agency at the time administering the Securities
Act.
CP Preference Period: The period beginning on the CP
Registration Rights Commencement Date and ending on the earlier
of (i) the date upon which the Cable Partners have completed
registered public offerings of Registrable Securities (as defined
in the Cable Partner Registration Rights Agreement) with an
aggregate public offering price for such Registrable Securities
of $2,000,000,000 or (ii) the date which is 12 months after the
CP Registration Rights Commencement Date.
CP Registration Rights Commencement Date: (i) if the IPO
(as defined in the FT/DT Restructuring Agreement) is consummated
concurrently with the CP Closing, the date that is 180 days
following the CP Closing, (ii) if the IPO is not consummated
concurrently with the CP Closing but is consummated within 120
days of the CP Closing, the date that is the later of the
ninetieth day following the IPO or 180 days following the CP
Closing, or (iii) if the IPO is not consummated concurrently with
the CP Closing or within 120 days thereafter, the date that is
the 180th day following the CP Closing, unless any Cable Partner
shall decide to exercise one of its rights to a demand
registration after such 120th day following the CP Closing but
prior to such 180th day following the CP Closing, in which case
it shall be the date the demand notice is given pursuant to the
Cable Partner Registration Rights Agreement.
CP Secondary Preference Period: The period ending on the
earlier of (i) the fourth anniversary of the CP Registration
Rights Commencement Date or (ii) the date upon which the Cable
Partners have completed registered public offerings of
Registrable Securities with an aggregate public offering price
for such Registrable Securities of $3,000,000,000.
Eligible Securities: (a) shares of Non-Class A Common Stock
held by a party to this Agreement (other than the Company)
acquired prior to the conversion of all shares of Class A Stock
into shares of Non-Class A Common Stock, or termination of the
Fundamental Rights, in each case pursuant to ARTICLE SIXTH,
Section 8.5 of the Articles and without violating Article 2 of
the Amended and Restated Standstill Agreement; (b) shares of
Non-Class A Common Stock into which shares of Class A Stock held
by a party to this Agreement (other than the Company) may be
converted, provided that for all purposes under this Agreement,
the holders of such shares of Class A Stock shall be deemed to be
the holders of such shares of Non-Class A Common Stock into which
such shares of Class A Stock may be converted; and (c) any
securities issued or issuable with respect to such Class A Stock
or such Non-Class A Common Stock by way of a stock dividend or
stock split or in connection with a combination of shares,
recapitalization, merger, consolidation or other reorganization
or otherwise. As to any particular
16
Eligible Securities, once issued such securities shall cease to
be Eligible Securities when (i) a registration statement with
respect to the sale of such securities shall have become
effective under the Securities Act and such securities shall have
been disposed of, (ii) they shall have been distributed to the
public pursuant to Rule 144 (or any successor provisions) under
the Securities Act, (iii) they shall have been otherwise
transferred (except transfers to a Qualified Subsidiary or
Qualified Stock Purchaser), new certificates for them not bearing
a legend restricting further transfer shall have been delivered
by the Company and subsequent disposition of them shall not
require registration or qualification of them under the
Securities Act or any state securities or blue sky law then in
force, or (iv) they shall have ceased to be outstanding.
Exchange Act: The Securities Exchange Act of 1934, or any
similar Federal statute, and the rules and regulations of the
Commission thereunder, all as the same shall be in effect at the
time.
German Fee Regulations: The Bundesgebuhrenordnung fur
Rechtsanwalte vom 26. Juli 1957 (BGBl) I S. 907 (as it or any
successor provision may be in effect from time to time).
PCS Group: The meaning set forth in the Articles.
Registration Expenses: All expenses incident to the
Company's performance of or compliance with Sections 1.1, 1.2 and
1.3 hereof, including, without limitation, (a) all registration,
filing and NASD fees, (b) all fees and expenses of complying with
securities or blue sky laws, (c) all word processing, duplicating
and printing expenses, (d) messenger and delivery expenses, (e)
the reasonable fees and disbursements of counsel for the Company
(excluding the portion of any fees determined pursuant to the
German Fee Regulations) and of its independent public
accountants, including the expenses of any "comfort" letters
required by or incident to such performance and compliance, (f)
premiums and other costs of policies of insurance against
liabilities arising out of the public offering of the Eligible
Securities being registered (if the Company elects to obtain any
such insurance), and (g) any fees and disbursements of
underwriters customarily paid by issuers or sellers of
securities, but excluding underwriting discounts and commissions,
provided, that (i) except as otherwise specifically provided
herein, fees and disbursements of counsel to one or more Selling
Stockholders and (ii) transfer taxes shall not be included as
Registration Expenses and shall not be paid by the Company.
Securities Act: The Securities Act of 1933, or any similar
Federal statute, and the rules and regulations of the Commission
thereunder, all as the same shall be in effect at the time.
Selling Stockholders: Holders of Eligible Securities that
with respect to a particular registration have delivered to the
Company a request to register, or include in a registration,
Eligible Securities held by them under Section 1.1 or Section 1.2
of this Agreement.
In addition, as used herein, the term "Cable Partners"
shall have the meaning given to such term in the FT/DT
Restructuring Agreement, and the term "Cable Partner Registration
17
Rights Agreement" shall mean the Registration Rights Agreement
dated as of __________, 1998 among the Company and the Cable
Partners.
Section 3. Miscellaneous.
Section 3.1. Rule 144. The Company shall file the reports
required to be filed by it under the Securities Act and the
Exchange Act and the rules and regulations adopted by the
Commission thereunder (or, if the Company is not required to file
such reports, shall, upon the request of any holder of Eligible
Securities, make publicly available other information) and shall
take such further action as any holder of Eligible Securities may
reasonably request, all to the extent required from time to time
to enable such holder to sell Eligible Securities without
registration under the Securities Act pursuant to (a) Rule 144
under the Securities Act, as such Rule may be amended from time
to time, or (b) any similar rule or regulation hereafter adopted
by the Commission. Upon the request of any holder of Eligible
Securities, the Company shall deliver to such holder a written
statement as to whether it has complied with such requirements.
Section 3.2. Additional Parties. Upon the Transfer of any
shares of Class A Stock to a Qualified Subsidiary or Qualified
Stock Purchaser in accordance with the terms of the Amended and
Restated Stockholders' Agreement, such Qualified Subsidiary or
Qualified Stock Purchaser shall become a party to this Agreement
by agreeing in writing to be bound by the terms and conditions of
this Agreement pursuant to an instrument of assumption in the
form of Exhibit B to the Amended and Restated Stockholders'
Agreement, in the case of a Qualified Subsidiary, or an
instrument of assumption in the form of Exhibit C to the Amended
and Restated Stockholders' Agreement, in the case of a Qualified
Stock Purchaser, and shall thereby be deemed a holder of Eligible
Securities for the purposes of this Agreement.
Section 3.3. Notices. All notices and other communications
required or permitted by this Agreement shall be made in writing
in the English language and any such notice or communication
shall be deemed delivered when delivered in person, transmitted
by telex or telecopier, or seven days after it has been sent by
air mail, as follows:
FT: 0 xxxxx x'Xxxxxxx
00000 Xxxxx Cedex 15
France
Attn: 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
18
Attn: General Counsel
Tel: (00-0) 00-00-00-00
Fax: (00-0) 00-00-00-00
with a copy to:
Shearman & Sterling
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
X.X.X.
Attn: Xxxxxx X. Xxxx, Xx., Esq.
Tel: (000) 000-0000
Fax: (000) 000-0000
DT: Xxxxxxxxx-Xxxxx-Xxxxx 000
X-00000 Xxxx
Xxxxxxx
Attn: Chief Executive Officer
Tel: 00-000-000-0000
Fax: 00-000-000-0000
with a copy to:
Cleary, Gottlieb, Xxxxx & Xxxxxxxx
Xxx Xxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
X.X.X.
Attn: Xxxxxx X. Xxxxx, Esq.
Tel: (000) 000-0000
Fax: (000) 000-0000
Company: 0000 Xxxxxxx Xxxxxxx
Xxxxxxx, Xxxx Wing
Westwood, Kansas 66205
U.S.A.
Attn: General Counsel
Tel: (000) 000-0000
Fax: (000) 000-0000
19
with a copy to:
King & Spalding
000 Xxxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxx 00000
X.X.X.
Attn: Xxxxx X. Xxxxxxxxx, Esq.
Tel: (000) 000-0000
Fax: (000) 000-0000
The parties to this Agreement shall promptly notify each other in
the manner provided in this Section 3.3 of any change in their
respective addresses. A notice of change of address shall not be
deemed to have been given until received by the addressee.
Communications by telex or telecopier also shall be sent
concurrently by mail, but shall in any event be effective as
stated above.
Section 3.4. Waiver, Amendment, etc. This Agreement may not
be amended or supplemented, and no waivers of or consents to
departures from the provisions hereof shall be effective, unless
set forth in a writing signed by, and delivered to, all the
parties hereto. No failure or delay of any party in exercising
any power or right under this Agreement will operate as a waiver
thereof, nor will any single or partial exercise of any right or
power, or any abandonment or discontinuance of steps to enforce
such right or power, preclude any other or further exercise
thereof or the exercise of any other right or power.
Section 3.5. Binding Agreement; No Third Party
Beneficiaries. This Agreement will be binding upon and inure to
the benefit of the parties hereto and their successors and
permitted assigns. Except as set forth herein and by operation of
law, no party to this Agreement may assign or delegate all or any
portion of its rights, obligations or liabilities under this
Agreement without the prior written consent of each other party
to this Agreement. Nothing expressed or implied herein is
intended or shall be construed to confer upon or give to any
third party any rights or remedies by virtue hereof.
Section 3.6. Governing Law; Dispute Resolution; Equitable
Relief. (A) THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK (REGARDLESS OF
THE LAWS THAT MIGHT OTHERWISE GOVERN UNDER APPLICABLE PRINCIPLES
OF CONFLICTS OF LAW).
(B) EACH PARTY TO THIS AGREEMENT IRREVOCABLY CONSENTS AND
AGREES THAT ANY LEGAL ACTION, SUIT OR PROCEEDING AGAINST IT WITH
RESPECT TO ITS OBLIGATIONS OR LIABILITIES UNDER OR ARISING OUT OF
OR IN CONNECTION WITH THIS AGREEMENT SHALL BE BROUGHT BY SUCH
PARTY ONLY IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN
DISTRICT OF
20
NEW YORK OR, IN THE EVENT (BUT ONLY IN THE EVENT) SUCH COURT DOES
NOT HAVE SUBJECT MATTER JURISDICTION OVER SUCH ACTION, SUIT OR
PROCEEDING, IN THE COURTS OF THE STATE OF NEW YORK SITTING IN NEW
YORK CITY, AND EACH PARTY TO THIS AGREEMENT HEREBY IRREVOCABLY
ACCEPTS AND SUBMITS TO THE JURISDICTION OF EACH OF THE AFORESAID
COURTS IN PERSONAM, WITH RESPECT TO ANY SUCH ACTION, SUIT OR
PROCEEDING. EACH PARTY HERETO IRREVOCABLY AND UNCONDITIONALLY
WAIVES ANY RIGHT THAT IT MAY HAVE TO A JURY TRIAL IN ANY LEGAL
ACTION, SUIT OR PROCEEDING WITH RESPECT TO, OR ARISING OUT OF OR
IN CONNECTION WITH THIS AGREEMENT. EACH OF FT AND DT HEREBY
IRREVOCABLY DESIGNATES CT CORPORATION SYSTEM (IN SUCH CAPACITY,
THE "PROCESS AGENT"), WITH XX XXXXXX XX 0000 XXXXXXXX, XXX XXXX,
XXX XXXX 00000, AS ITS DESIGNEE, APPOINTEE AND AGENT TO RECEIVE,
FOR AND ON ITS BEHALF SERVICE OF PROCESS IN SUCH JURISDICTION IN
ANY LEGAL ACTION OR PROCEEDINGS WITH RESPECT TO THIS AGREEMENT,
AND SUCH SERVICE SHALL BE DEEMED COMPLETE UPON DELIVERY THEREOF
TO THE PROCESS AGENT, PROVIDED THAT IN THE CASE OF ANY SUCH
SERVICE UPON THE PROCESS AGENT, THE PARTY EFFECTING SUCH SERVICE
SHALL ALSO DELIVER A COPY THEREOF TO FT AND DT IN THE MANNER
PROVIDED IN SECTION 3.3. FT AND DT SHALL TAKE ALL SUCH ACTION AS
MAY BE NECESSARY TO CONTINUE SAID APPOINTMENT IN FULL FORCE AND
EFFECT OR TO APPOINT ANOTHER AGENT SO THAT FT AND DT WILL AT ALL
TIMES HAVE AN AGENT FOR SERVICE OF PROCESS FOR THE ABOVE PURPOSES
IN NEW YORK, NEW YORK. IN THE EVENT OF THE TRANSFER OF ALL OR
SUBSTANTIALLY ALL OF THE ASSETS AND BUSINESS OF THE PROCESS AGENT
TO ANY OTHER CORPORATION BY CONSOLIDATION, MERGER, SALE OF ASSETS
OR OTHERWISE, SUCH OTHER CORPORATION SHALL BE SUBSTITUTED
HEREUNDER FOR THE PROCESS AGENT WITH THE SAME EFFECT AS IF NAMED
HEREIN IN PLACE OF CT CORPORATION SYSTEM. EACH OF FT AND DT
FURTHER IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS OUT OF ANY
OF THE AFOREMENTIONED COURTS IN ANY SUCH ACTION OR PROCEEDING BY
THE MAILING OF COPIES THEREOF BY REGISTERED AIRMAIL, POSTAGE
PREPAID, TO SUCH PARTY AT ITS ADDRESS SET FORTH IN THIS
AGREEMENT, SUCH SERVICE OF PROCESS TO BE EFFECTIVE UPON
ACKNOWLEDGMENT OF RECEIPT OF SUCH REGISTERED MAIL. NOTHING HEREIN
SHALL AFFECT THE RIGHT OF ANY PARTY TO SERVE PROCESS IN ANY OTHER
MANNER PERMITTED BY APPLICABLE LAW. EACH OF FT AND DT EXPRESSLY
ACKNOWLEDGES THAT THE FOREGOING WAIVER IS INTENDED TO BE
IRREVOCABLE UNDER THE LAWS OF THE STATE OF NEW YORK AND OF THE
UNITED STATES OF AMERICA.
(C) EACH PARTY HERETO AGREES THAT MONEY DAMAGES WOULD NOT
BE A SUFFICIENT REMEDY FOR THE OTHER PARTIES HERETO FOR ANY
BREACH OF THIS AGREEMENT BY IT, AND THAT IN ADDITION TO ALL OTHER
REMEDIES
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THE OTHER PARTIES HERETO MAY HAVE, THEY SHALL BE ENTITLED TO
SPECIFIC PERFORMANCE AND TO INJUNCTIVE OR OTHER EQUITABLE RELIEF
AS A REMEDY FOR ANY SUCH BREACH TO THE EXTENT PERMITTED BY
APPLICABLE LAW. EACH PARTY HERETO AGREES NOT TO OPPOSE THE
GRANTING OF SUCH RELIEF IN THE EVENT A COURT DETERMINES SUCH A
BREACH HAS OCCURRED, AND TO WAIVE ANY REQUIREMENT FOR THE
SECURING OR POSTING OF ANY BOND IN CONNECTION WITH SUCH REMEDY.
Section 3.7. Severability. The invalidity or
unenforceability of any provision hereof in any jurisdiction will
not affect the validity or enforceability of the remainder hereof
in that jurisdiction or the validity or enforceability of this
Agreement, including that provision, in any other jurisdiction.
To the extent permitted by applicable law, each party hereto
waives any provision of law that renders any provision hereof
prohibited or unenforceable in any respect. If any provision of
this Agreement is held to be unenforceable for any reason, it
shall be adjusted to the extent permitted by applicable law
rather than voided, if possible, in order to achieve the intent
of the parties to this Agreement to the extent possible.
Section 3.8. Translation. The parties have negotiated 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 the loi (degree)n 94-665
du 4 aout 1994 relative a l'emploi de la langue francaise, the
parties hereto have prepared a French version of this Agreement,
which French version was executed and delivered simultaneously
with the execution and delivery of the English version hereof,
such English version having likewise been executed and delivered.
The parties deem the French and English versions of this
Agreement to be equally authoritative.
Section 3.9. Table of Contents; Headings; Counterparts. The
table of contents and the headings in this Agreement are for
convenience of reference only and will not affect the
construction of any provisions hereof. This Agreement may be
executed in one or more counterparts, each of which when so
executed and delivered will be deemed an original but all of
which will constitute one and the same Agreement.
Section 3.10. Entire Agreement. This Agreement embodies the
entire agreement and understanding of the parties hereto in
respect of the subject matter contained herein, provided that
this provision shall not abrogate any other written agreement
between the parties executed simultaneously with this Agreement.
This Agreement supersedes all prior agreements and understandings
between the parties with respect to such subject matter.
Section 3.11. Waiver of Immunity. Each of FT and DT agrees
that, to the extent that it or any of its property is or becomes
entitled at any time to any immunity on the grounds of
sovereignty or otherwise based upon its status as an agency or
instrumentality of government from any legal action, suit or
proceeding or from set off or counterclaim relating to this
Agreement from the jurisdiction of any competent court described
in Section 3.6, from service of
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process, from attachment prior to judgment, from attachment in
aid of execution of a judgment, from execution pursuant to a
judgment or an arbitral award or from any other legal process in
any jurisdiction, it, for itself and its property expressly,
irrevocably and unconditionally waives, and agrees not to plead
or claim, any such immunity with respect to such matters arising
with respect to this Agreement or the subject matter hereof or
thereof (including any obligation for the payment of money). Each
of FT and DT agrees that the waiver in this provision is
irrevocable and is not subject to withdrawal in any jurisdiction
or under any statute, including the Foreign Sovereign Immunities
Act, 28 U.S.C. P. 1602 et seq. The foregoing waiver shall
constitute a present waiver of immunity at any time any action is
initiated against FT or DT with respect to this Agreement.
Section 3.12. Currency. All amounts payable under this
Agreement shall be payable in U.S. dollars.
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IN WITNESS WHEREOF, the parties have caused this Agreement
to be executed and delivered as of the date first above written.
SPRINT CORPORATION
By:_________________________
Name:
Title:
FRANCE TELECOM S.A.
By:_________________________
Name:
Title:
DEUTSCHE TELEKOM AG
By:_________________________
Name:
Title:
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