EXHIBIT 1.1
UNDERWRITING AGREEMENT
Sprint Corporation
Sprint Capital Corporation
60,000,000 Equity Xxxxx
Xxxxxx 0, 0000
Xxx Xxxx, Xxx Xxxx
August 7, 2001
XX Xxxxxx
00 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Xxxxxxx Xxxxx & Co.
0 Xxxxx Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
UBS Warburg LLC
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
As Representatives of the several Underwriters
named in Schedule II hereto,
Dear Sirs and Mesdames:
Sprint Corporation, a Kansas corporation ("Sprint"), proposes to sell to
the several underwriters named in Schedule II hereto (the "Underwriters"), for
whom you (the "Representatives") are acting as representatives, an aggregate of
60,000,000 Equity Units (the "Equity Units") of the Company, which will
initially consist of 60,000,000 units referred to as "Corporate Units" with a
stated amount, per Corporate Unit, of $25 (the "Stated Amount")(the "Firm
Corporate Units"). The Corporate Units will initially consist of (a) a stock
purchase contract (the "Purchase Contract") under which the holder will agree to
purchase from the Company on August 17, 2004 (the "Purchase Contract Settlement
Date"), for an amount of cash equal to the Stated Amount, a number of newly
issued shares of PCS Common Stock, Series 1, $1.00 par value per share (the "PCS
Common Stock") equal to the Settlement Rate (as defined in the Purchase Contract
Agreement referred to below) and (b) a $25 aggregate principal amount 6% senior
note due August 17, 2006, issued by our wholly owned finance subsidiary, Sprint
Capital Corporation ("Sprint Capital"; Sprint Capital, together with Sprint
jointly and severally, being hereafter called the "Company") guaranteed by
Sprint (a "guarantee") (each, a "Note" and collectively the "Notes") pursuant to
the Indenture (as defined below).
Sprint also proposes to sell to the several underwriters not more than an
additional 9,000,000,000 Corporate Units (the "Additional Corporate Units") if
and to the extent that you, as Representatives, shall have determined to
exercise, on behalf of the Underwriters, the right to purchase such Corporate
Units granted to the Underwriters in Section 2 hereof. The
Firm Corporate Units and the Additional Corporate Units are hereinafter
collectively referred to as the "Securities".
The Notes that will initially constitute a component of the Corporate Units
are hereinafter referred to as the "Underlying Notes". In accordance with the
terms of the Purchase Contract Agreement to be dated as of the Closing Date (the
"Purchase Contract Agreement"), between Sprint and Bank One, N.A., as Purchase
Contract Agent (the "Purchase Contract Agent"), the Underlying Notes will be
pledged by the Purchase Contract Agent, on behalf of the holders of the
Securities, to Bank One, N.A., as Collateral Agent (the "Collateral Agent"),
pursuant to the Pledge Agreement, to be dated as of the Closing Date (the
"Pledge Agreement"), among the Company, the Purchase Contract Agent and the
Collateral Agent, to secure the holders' obligations to purchase PCS Common
Stock under the Purchase Contracts. The shares of PCS Common Stock issuable
pursuant to the Purchase Contracts are hereinafter called the "Purchase Contract
Shares".
The Notes will be issued pursuant to the indenture dated as of October 1,
1998, among Sprint, Sprint Capital and Bank One, N.A., as trustee, as
supplemented by a first supplemental indenture dated as of January 15, 1999 (the
"Indenture").
Pursuant to a Remarketing Agreement (the "Remarketing Agreement") to be
dated as of the Closing Date, among the Company, the Purchase Contract Agent and
UBS Warburg LLC, as remarketing agent (the "Remarketing Agent") the Notes may be
remarketed, subject to certain terms and conditions. The Remarketing Agreement
contemplates that, in connection with any such remarketing, the Company and the
Remarketing Agent will enter into a Supplemental Remarketing Agreement (the
"Supplemental Remarketing Agreement") in substantially the form attached as
Exhibit A to the Remarketing Agreement.
As used in this Agreement, the term "Operative Documents" means this
Agreement, the Purchase Contract Agreement (including the Purchase Contracts),
the Pledge Agreement, the Remarketing Agreement, the Notes, the Indenture and
the Corporate Units.
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement, including a prospectus, relating to the
Securities and the Purchase Contract Shares (Commission file no. 333-65402). The
registration statement as amended at the time it became effective, including the
information (if any) deemed to be part of the registration statement at the time
of effectiveness pursuant to Rule 430A under the Securities Act of 1933, as
amended (the "Securities Act"), is hereinafter referred to as the "Registration
Statement"; the prospectus included in such Registration Statement, as
supplemented to reflect the terms of the Securities and the terms of the
Offering of the Securities, as first filed with the Commission pursuant to and
in accordance with Rule 424(b) under the Securities Act, including all material
incorporated by reference therein, is hereinafter referred to as the
"Prospectus". If the Company has filed an abbreviated registration statement to
register additional Securities pursuant to Rule 462(b) under the Securities Act
(the "Rule 462 Registration Statement"), then any reference herein to the term
"Registration Statement"
shall be deemed to include such Rule 462 Registration Statement. Any reference
herein to the Registration Statement, any preliminary prospectus or the
Prospectus shall be deemed to refer to and include the documents incorporated by
reference therein pursuant to Item 12 of Form S-3 which were filed under the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), on or before
the effective date of the Registration Statement or the issue date of such
preliminary prospectus or the Prospectus, as the case may be; and any reference
herein to the terms "amend," "amendment" or "supplement" with respect to the
Registration Statement, any preliminary prospectus or the Prospectus shall be
deemed to refer to and include the filing of any document under the Exchange Act
after the effective date of the Registration Statement or the issue date of any
preliminary prospectus or the Prospectus, as the case may be, deemed to be
incorporated therein by reference.
1. Representations and Warranties of the Company. The Company
represents and warrants to and agrees with the Underwriters that:
(a) The Registration Statement has become effective; no stop
order suspending the effectiveness of the Registration Statement is in
effect, and no proceedings for such purpose are pending before or, to
the knowledge of the Company, threatened by the Commission.
(b) (i) Each document, if any, filed or to be filed pursuant
to the Exchange Act and incorporated by reference in the Prospectus
complied or will comply when so filed in all material respects with the
Exchange Act and the applicable rules and regulations of the Commission
thereunder, (ii) the Registration Statement and any amendments thereto,
as of their respective effective dates, did not contain or, as the case
may be, will not contain any 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, (iii) the
Registration Statement and any of the amendments thereto, as of their
respective effective dates, and the Prospectus, as of its issue date
and, as amended or supplemented, if applicable, as of the Closing Date
(as defined in Section 4 hereof), complied or will comply in all
material respects with the Trust Indenture Act of 1939, the Securities
Act and the applicable rules and regulations of the Commission
thereunder and (iv) the Prospectus, as of its issue date and, as
amended or supplemented, if applicable, as of the Closing Date does not
and will not contain any untrue statement of a material fact or omit to
state a material fact necessary to make the statements therein, in the
light of the circumstances under which they were made, not misleading,
except that the representations and warranties set forth in this
paragraph do not apply to (i) statements or omissions in the
Registration Statement or the Prospectus or any amendment or supplement
thereto based upon information relating to any Underwriter furnished to
the Company in writing by such Underwriter through you expressly for
use therein or (ii) those exhibits to the Registration Statement that
constitute the Statement of Eligibility (Form T-1) of the Trustee.
(c) Sprint has been duly incorporated, is validly existing as
a corporation in good standing under the laws of the jurisdiction of
its incorporation, has the corporate power and authority to own its
property and to conduct its business as described in the Prospectus and
is duly qualified to transact business and is in good standing in each
jurisdiction in which the conduct of its business or its ownership or
leasing of property requires such qualification, except to the extent
that the failure to be so qualified or be in good standing would not
reasonably be expected to have a material adverse effect on Sprint and
its subsidiaries, taken as a whole.
(d) Each subsidiary of Sprint that would be a "significant
subsidiary" of Sprint within the meaning of Rule 1-02 under Regulation
S-X promulgated by the Commission, substituting five percent for ten
percent in the conditions specified therein and substituting
"proportionate share of the total net revenue (after intercompany
eliminations)" for "equity in the income from continuing operations
before income taxes, extraordinary items and cumulative effect of a
change in accounting principle" and "such revenue" for "such income" in
clause (3) of such definition (each a "Material Subsidiary"), has been
duly incorporated or otherwise organized, is validly existing as a
corporation, limited liability company, or partnership, as the case may
be, in good standing under the laws of the jurisdiction of its
incorporation or organization, has the corporate, limited liability
company, or partnership, as the case may be, power and authority to own
its property and to conduct its business as described in the Prospectus
and is duly qualified to transact business and is in good standing in
each jurisdiction in which the conduct of its business or its ownership
or leasing of property requires such qualification, except to the
extent that the failure to be so qualified or be in good standing would
not reasonably be expected to have a material adverse effect on Sprint
and its subsidiaries, taken as a whole; all of the outstanding shares
of capital stock of each subsidiary of Sprint have been duly and
validly authorized and issued, are fully paid and non-assessable and,
except as otherwise set forth or incorporated by reference in the
Prospectus, are owned directly or indirectly by Sprint, free and clear
of all liens, encumbrances, equities or claims.
(e) This Agreement has been duly authorized, executed and
delivered by the Company, and the Company has, and on the Closing Date
will have, the corporate power to enter into this Agreement and perform
its obligations hereunder.
(f) The authorized equity capitalization of Sprint is as set
forth in the Prospectus under the captions "Authorized Capital Stock"
and "Capitalization", and the Securities conform in all material
respects to the description thereof contained in the Prospectus.
(g) All outstanding shares of Common Stock have been duly
authorized and are validly issued, fully paid and non-assessable.
(h) The Remarketing Agreement has been duly authorized by the
Company and Sprint Capital and when executed and delivered by the
Company and Sprint Capital will constitute the valid and binding
obligation of the Company enforceable against the Company in accordance
with its terms, subject, as to enforcement of remedies, to bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting the
rights and remedies of creditors generally and to the effect of general
principles of equity, and except as indemnification or contribution
obligations may be limited under applicable laws and public policy, and
will conform in all material respects to the description thereof in the
Prospectus. The Supplemental Remarketing Agreement has been duly
authorized by the Company and, at the date of the Supplemental
Remarketing Agreement and at the Remarketing Closing Date (as defined
in Schedule I to the Supplemental Remarketing Agreement), will have
been duly executed and delivered by the Company.
(i) Each of the Purchase Contract Agreement, the Pledge
Agreement, the Notes (including the guarantees related thereto) has
been duly authorized and when executed and delivered by Sprint and/or
Sprint Capital, as applicable (in the case of the Notes, in accordance
with the Indenture), will constitute the valid and binding obligations
of Sprint and/or Sprint Capital, as applicable, enforceable against
Sprint and/or Sprint Capital, as applicable, in accordance with its
terms, subject, as to enforcement of remedies, to bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting the
rights and remedies of creditors generally and the effect of general
principles of equity and will conform in all material respects to the
description thereof in the Prospectus. The Notes will be entitled to
the benefits of the Indenture.
(j) The Indenture has been duly authorized, executed and
delivered and constitutes a legal, valid and binding instrument
enforceable against the Company in accordance with its terms, subject,
as to enforcement of remedies, to bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the rights and
remedies of creditors generally and the effect of general principles of
equity. The Indenture has been qualified under the Trust Indenture Act.
(k) The Corporate Units have been duly authorized and when
executed and delivered by Sprint will constitute the valid and binding
obligations of Sprint enforceable against Sprint in accordance with
their terms, subject, as to enforcement of remedies, to bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting the
rights and remedies of creditors generally and the effect of general
principles of equity, and will conform in all material respects to the
description thereof in the Prospectus. The Corporate Units and the
Purchase Contract Shares have been duly registered under the Exchange
Act and have been authorized for listing on the New York Stock
Exchange, subject to official notice of issuance; and the issuance of
the Corporate Units is not subject to preemptive or other rights to
subscribe for the Securities pursuant to Sprint's Articles of
Incorporation or the Kansas General Corporation Code.
(l) The Purchase Contract Shares issuable pursuant to the
Purchase Contract Agreement have been duly authorized and reserved for
issuance by Sprint and, when issued and delivered in accordance with
the provisions of the Purchase Contract Agreement, will be validly
issued and fully paid and non-assessable; and the issuance of such
Purchase Contract Shares is not and will not be subject to preemptive
or other rights to subscribe for the Securities pursuant to Sprint's
Articles of Incorporation or the Kansas General Corporation Code.
(m) The execution and delivery by Sprint and/or Sprint
Capital, as applicable, of, and the performance by Sprint and/or Sprint
Capital, as applicable, of its obligations under, the Operative
Documents (i) has not and will not violate any provision of the
articles of incorporation or by-laws of Sprint and/or Sprint Capital,
as applicable, and (ii) has not and will not violate any provision of
law applicable to Sprint or any of its subsidiaries, any agreement or
other instrument binding upon Sprint or any of its subsidiaries or any
judgment, order or decree of any governmental body, agency or court
having jurisdiction over Sprint or any subsidiary, except in each case
set forth in this clause (ii) for violations that would not reasonably
be expected to have a material adverse effect on Sprint and its
subsidiaries, taken as a whole, or the Company's ability to perform its
obligations hereunder; and no consent, approval, authorization or order
of, or qualification with, any governmental body or agency is required
for the execution, delivery or performance of this Agreement by the
Company, except such as may be required by the securities or Blue Sky
laws of the various states in connection with the offer and sale of the
Securities.
(n) There has not occurred any material adverse change, or any
development involving a prospective material adverse change, in the
condition, financial or otherwise, or in the earnings, business or
operations of Sprint and its subsidiaries, taken as a whole, from that
set forth in the Prospectus.
(o) There are no legal or governmental proceedings pending or,
to the knowledge of Sprint, threatened to which Sprint or any of its
subsidiaries is a party or to which any of the properties of Sprint or
any of its subsidiaries is subject that are required to be described in
the Registration Statement or the Prospectus and are not so described
or any statutes, regulations, contracts or other documents that are
required to be described in the Registration Statement or the
Prospectus that are not described as required. There are no contracts
or other documents required to be filed as exhibits to the Registration
Statement that are not filed as required.
(p) The Prospectus, and any supplement thereto, filed as part
of the Registration Statement as originally filed or as part of any
amendment thereto, or filed pursuant to Rule 424 under the Securities
Act, complied when so filed in all material respects with the
Securities Act and the applicable rules and regulations of the
Commission thereunder.
(q) Sprint is not, and after giving effect to the offering and
sale of the Securities and the application of the proceeds thereof as
described in the Prospectus will not be an "investment company" as such
term is defined in the Investment Company Act of 1940, as amended.
(r) Sprint and its subsidiaries possess all licenses,
certificates, permits and other authorizations issued by the
appropriate federal, state or foreign regulatory authorities necessary
to conduct their respective businesses material to Sprint and its
subsidiaries, taken as a whole, and neither Sprint nor any such
subsidiary has received any notice of proceedings relating to the
revocation or modification of any such certificate, authorization or
permit which, singly or in the aggregate, could reasonably be expected
to have a material adverse effect on Sprint and its subsidiaries, taken
as a whole, whether or not arising from transactions in the ordinary
course of business.
(s) Sprint and its subsidiaries (i) are in compliance with any
and all applicable foreign, federal, state and local laws and
regulations relating to the protection of human health and safety, the
environment or hazardous or toxic substances or wastes, pollutants or
contaminants ("Environmental Laws"), (ii) have received all permits,
licenses or other approvals required of them under applicable
Environmental Laws to conduct their respective businesses and (iii) are
in compliance with all terms and conditions of any such permit, license
or approval, except, in the case of all matters set forth in clauses
(i), (ii) and (iii), as set forth in the Prospectus and except where
such noncompliance with Environmental Laws, failure to receive required
permits, licenses or other approvals or failure to comply with the
terms and conditions of such permits, licenses or approvals could not
reasonably be expected to, singly or in the aggregate, have a material
adverse effect on Sprint and its subsidiaries, taken as a whole.
(t) There are no costs or liabilities known to the Company
associated with Environmental Laws (including, without limitation, any
capital or operating expenditures required for clean-up, closure of
properties or compliance with Environmental Laws or any permit, license
or approval, any related constraints on operating activities and any
potential liabilities to third parties) which could reasonably be
expected to, singly or in the aggregate, have a material adverse effect
on Sprint and its subsidiaries, taken as a whole.
(u) There are no contracts, agreements or understandings
between the Company and any person granting such person the right to
require the Company to register any securities pursuant to the
Registration Statement, except such rights as have been both (i)
referred to or incorporated by reference in the Prospectus and (ii)
waived or satisfied.
(v) Ernst & Young LLP and Deloitte & Touche LLP, whose reports
on the consolidated financial statements of Sprint and its subsidiaries
are filed with the Commission as part of the Registration Statement and
Prospectus, are each independent public accountants with respect to
Sprint as required by the Securities Act.
(w) The audited and unaudited financial statements and
schedules included in the Registration Statement and the Prospectus
present fairly in all material respects the consolidated financial
position of Sprint and its subsidiaries as of the dates indicated and
the consolidated results of operations and cash flows of Sprint and its
subsidiaries for the periods specified; such financial statements and
schedules have been prepared in conformity with generally accepted
accounting principles applied on a consistent basis during the periods
involved.
(x) The Company after giving effect to the offering and sale
of the securities and the application of the proceeds thereof as
described in the Prospectus will not direct an aggregate of 10% or more
of the net proceeds of the offering of the Securities to National
Association of Securities Dealers, Inc. members participating in the
distribution of the Securities.
2. Agreements to Sell and Purchase. Upon the basis of the
representations and warranties herein contained, but subject to the conditions
hereinafter stated, Sprint hereby agrees to sell to the several Underwriters,
and each Underwriter, agrees, severally and not jointly, to purchase from Sprint
at $ per Corporate Unit (the "Purchase Price") the number of Firm Corporate
Units set forth in Schedule II hereto opposite the name of such Underwriter.
On the basis of the representations and warranties contained
in this Agreement, and subject to its terms and conditions, Sprint agrees to
sell to the Underwriters the Additional Corporate Units, and the Underwriters
shall have a one-time right to purchase, severally and not jointly,
9,000,000,000 Additional Corporate Units at the Purchase Price. If you, on
behalf of the Underwriters, elect to exercise such option, you shall so notify
Sprint in writing at least three business days in advance of the Option Closing
Date and not later than 30 days after the date of this Agreement, which notice
shall be irrevocable and shall specify the number of Additional Corporate Units
to be purchased by the Underwriters and the date on which such Additional
Corporate Units are to be purchased. Such date may be the same as the Closing
Date (as defined below) but not earlier than the Closing Date nor later than ten
business days after the date of such notice. Additional Corporate Units may be
purchased as provided in Section 4 hereof solely for the purpose of covering
over-allotments made in connection with the offering of the Firm Corporate
Units. If any Additional Corporate Units are to be purchased, each Underwriter
agrees, severally and not jointly, to purchase from Sprint, the number of
Additional Corporate Units that bears the same proportion to the total number of
Additional Corporate Units to be purchased as the number of Firm Corporate Units
set forth in Schedule II hereto opposite the name of such Underwriter bears to
the total number of Firm Corporate Units.
The Company hereby agrees that, without the prior written
consent of any two of X.X. Xxxxxx Securities Inc., Xxxxxxx Lynch, Pierce, Xxxxxx
& Xxxxx Incorporated and UBS Warburg LLC on behalf of the Underwriters, it will
not, during the period ending 90 days after the date of the Prospectus, (i)
offer, pledge, sell, contract to sell, sell any option or contract to
purchase, purchase any option or contract to sell, grant any option, right or
warrant to purchase, lend, or otherwise transfer or dispose of, directly or
indirectly, any shares of any series of PCS Common Stock or any securities
convertible into or exercisable or exchangeable for shares of any series of PCS
Common Stock or (ii) enter into any swap or other arrangement that transfers to
another, in whole or in part, any of the economic consequences of ownership of
PCS Common Stock, whether any such transaction described in clause (i) or (ii)
above is to be settled by delivery of PCS Common Stock or such other securities,
in cash or otherwise. The foregoing sentence shall not apply to (A) the issuance
and sale of PCS Common Stock in the offering being conducted concurrently with
this offering, (B) any transaction pursuant to any employee or director benefit
plan in effect on the date of the Prospectus or the registration of any such
transaction, (C) issuances of PCS Common Stock upon conversion of outstanding
shares of Preferred Stock -- Seventh Series, Convertible, or upon exercise of
outstanding warrants to purchase PCS Common Stock, (D) issuances of PCS Common
Stock pursuant to Sprint's rights plan in effect on the date of the Prospectus,
(E) issuances of PCS Common Stock or securities convertible into or exchangeable
for PCS Common Stock in connection with acquisitions, or mergers or in
connection with strategic or other significant investments; provided that in
each case set forth in this clause (E) the recipient of such PCS Common Stock or
securities convertible into or exchangeable for PCS Common Stock agrees to be
bound for any remaining portion of such 90 day period on the above terms (except
that recipients of PCS Common Stock or securities convertible into or
exchangeable for PCS Common Stock in connection with the acquisition by Sprint
of a company whose shares are publicly traded need not so agree), (F)
registrations of PCS Common Stock for, or issuances of PCS Common Stock to,
Comcast Corporation, Xxx Communications, Inc. and Liberty PCS Trust or any
affiliate upon any exercise of their equity purchase rights or registration
rights, (G) issuances, or registrations, of shares of PCS Common Stock which are
issuable to France Telecom ("FT"), Deutsche Telekom AG or any affiliate ("DT")
or third parties in respect of the shares of Sprint's Class A Common Stock and
PCS Common Stock, Series 3 held by FT and DT as of the date of this Agreement,
(H) issuances of Equity Units, Corporate Units, Purchase Contracts or Purchase
Contract Shares to be sold hereunder or (I) issuances of treasury units (as
defined in the Prospectus) or Corporate Units to be created or recreated upon
substitution of pledged securities.
3. Terms of Public Offering. The Company is advised by you
that the Underwriters propose to make a public offering of their respective
portions of the Securities as set forth in the Prospectus. The Company is
further advised by you that the Securities are to be offered to the public
initially at $25 per Corporate Unit (the "Public Offering Price") and to certain
dealers selected by you at a price that represents a concession not in excess of
$0.65 per Corporate Unit under the Public Offering Price.
4. Payment and Delivery. Payment for the Firm Corporate Units
shall be made to the Company in Federal or other funds immediately available in
New York City against delivery of such Firm Corporate Units for the respective
accounts of the several Underwriters at 10:00 a.m., New York City time, on
August 10, 2001, or at such other time on the same or such other date, not more
than five business days later, as shall be designated in writing by you. The
time and date of such payment are hereinafter referred to as the "Closing Date".
Payment for any Additional Corporate Units shall be made to
the Company in Federal or other funds immediately available in New York City
against delivery of such Additional Corporate Units for the respective accounts
of the several Underwriters at 10:00 a.m., New York City time, on the date
specified in the notice described in Section 2 or at such other time on the same
or on such other date, in any event not later than September 30,
2001, as shall be designated in writing by you. The time and date of such
payment are hereinafter referred to as the "Option Closing Date".
The certificates evidencing the Firm Corporate Units and the
Additional Corporate Units shall be delivered to you on the Closing Date or the
Option Closing Date, as the case may be, for the respective accounts of the
several Underwriters, with any transfer taxes payable in connection with the
transfer of the Securities to the Underwriters duly paid, against payment of the
Purchase Price therefor.
5. Conditions to the Obligations of the Underwriters and the
Company. The several obligations of Sprint to sell the Securities to the
Underwriters and the several obligations of the Underwriters to purchase and pay
for the Securities on the Closing Date are subject to the condition that the
Registration Statement shall have been declared effective by the Commission
prior to the Closing Date and that no stop order suspending the effectiveness of
the Registration Statement is in effect, and no proceedings for such purpose are
pending before or threatened by the Commission at the Closing Date.
The several obligations of the Underwriters to purchase and
pay for the Securities on the Closing Date are subject to the accuracy of the
representations and warranties on the part of the Company contained herein as of
the Closing Date, the accuracy of the statements by the Company made in any
certificates pursuant to the provisions hereof, the performance by the Company
of its obligations hereunder and to the following additional conditions:
(a) Subsequent to the execution and delivery of this Agreement
and prior to the Closing Date there shall not have occurred any change,
or any development involving a prospective change, in the condition,
financial or otherwise, or in the earnings, business or operations of
Sprint and its subsidiaries, taken as a whole, from that set forth in
the Prospectus (exclusive of any amendments or supplements thereto
subsequent to the date of this Agreement) that, in your judgment, is
material and adverse and that makes it, in your judgment, impracticable
to market the Firm Corporate Units on the terms and in the manner
contemplated in the Prospectus.
(b) The Underwriters shall have received on the Closing Date a
certificate, dated the Closing Date and signed by an executive officer
of Sprint to the effect that the representations and warranties of the
Company contained in this Agreement are true and correct as if made on
the Closing Date and that the Company has complied with all of the
agreements and satisfied all of the conditions on its part to be
performed or satisfied hereunder on or before the Closing Date.
The officer signing and delivering such certificate may rely
upon the best of his or her knowledge as to proceedings threatened.
(c) The Underwriters shall have received on the Closing Date
an opinion of King & Spalding, outside counsel for the Company, dated
the Closing Date, to the effect that:
(i) the Registration Statement has become effective
under the Act, any required filing of the Prospectus, and any
supplements thereto, pursuant to Rule 424(b) has been made in
the manner and within the time period required by Rule 424(b),
and, to such counsel's knowledge, no stop order suspending the
effectiveness of the Registration Statement has been issued
and no proceedings for that purpose have been instituted or
threatened;
(ii) the statements (A) in the Prospectus under the
captions "Certain Federal Income Tax Consequences" and
"Certain U.S. Federal Income Tax Consequences to Non-United
States Holders" and (B) in the Registration Statement in Item
15, in each case insofar as such statements constitute
summaries of the documents (or provisions thereof) or statutes
and regulations (or provisions thereof) referred to therein,
fairly present the information called for with respect to such
documents (or provisions thereof) and statutes and regulations
(or provisions thereof) and fairly summarize in all material
respects such documents (or provisions thereof) or statutes
and regulations (or provisions thereof);
(iii) Sprint is not, and after giving effect to the
offering and sale of the Securities and the application of the
proceeds thereof as described in the Prospectus will not be an
"investment company" as such term is defined in the Investment
Company Act of 1940, as amended;
(iv) the Registration Statement, as of its effective
date, and the Prospectus, as of its issue date and, as amended
or supplemented, if applicable, as of the Closing Date,
complied as to form in all material respects with the
requirements of the Securities Act and the rules and
regulations thereunder (in each case other than (A) the
financial statements and notes thereto,
the financial statement schedules and the other financial and
statistical data included or incorporated by reference
therein, (B) the Statement of Eligibility (Form T-1) of the
Trustee and (C) the documents and other information
incorporated by reference therein, as to which we express no
opinion);
(v) each of the Purchase Contract Agreement, the
Remarketing Agreement, the Pledge Agreement, the Indenture and
the Notes (including the guarantees related thereto), when
executed and delivered by Sprint and/or Sprint Capital, as
applicable, will constitute the valid and binding obligations
of Sprint and/or Sprint Capital, as applicable, enforceable
against Sprint or Sprint Capital, as applicable, in accordance
with their terms, subject, as to enforcement of remedies, to
bankruptcy, insolvency, reorganization, moratorium or similar
laws affecting the rights and remedies of creditors generally
and the effect of general principles of equity, and solely
with respect to the opinion as to enforceability of the
Remarketing Agreement, except as indemnification or
contribution obligations may be limited under applicable laws
and public policy; and
(vi) the Corporate Units, when executed and delivered
by Sprint and duly authorized in accordance with the terms of
the Purchase Contract Agreement and delivered to and paid for
by the Underwriters in accordance with the terms of this
Agreement and assuming that the certificates evidencing the
Corporate Units have been executed by the Purchase Contract
Agent as attorney-in-fact for the holders thereof, will
constitute the valid and binding obligations of Sprint
enforceable against Sprint in accordance with their terms,
subject, as to enforcement of remedies, to bankruptcy,
insolvency, reorganization, moratorium or similar laws
affecting the rights and remedies of creditors generally and
the effect of general principles of equity, and will conform
in all material respects to the description thereof in the
Prospectus.
In addition, such counsel shall state that although it does
not assume any responsibility for the accuracy, completeness
or fairness of the statements contained in the Registration
Statement or the Prospectus (except as set forth in paragraph
(ii) above), nothing has come to its attention that causes
such counsel to believe that (a) the Registration Statement
(other than (i) the financial statements and notes thereto,
the financial statement schedules and the other financial and
statistical data included or incorporated by reference
therein, (ii) the Statement of Eligibility (Form T-1) of the
Trustee and (iii) the documents and other information
incorporated by reference therein, as to which such counsel
expresses no belief), as of its effective date, contained an
untrue statement of a material fact or omitted to state any
material fact required to be stated therein or necessary to
make the statements therein not misleading or (b) the
Prospectus (other than (i) the financial statements and notes
thereto, the financial statement schedules
and the other financial and statistical data included or
incorporated by reference therein and (ii) the documents and
other information incorporated by reference therein, as to
which such counsel expresses no belief), as of its issue date
or, as amended or supplemented, if applicable, as of the
Closing Date, contained or contains an untrue statement of a
material fact or omitted or omits to state any material fact
necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not
misleading.
(d) The Underwriters shall have received on the Closing Date
an opinion of Xxxxxx X. Xxxxx, Vice President, Corporate Secretary and Associate
General Counsel of Sprint, dated the Closing Date, to the effect that:
(i) Sprint has been duly incorporated in the state of Kansas,
is validly existing as a corporation in good standing under the laws of the
state of Kansas, has the corporate power and authority to own its property and
to conduct its business as described in the Prospectus and is duly qualified to
transact business and is in good standing in each jurisdiction in which the
conduct of its business or its ownership or leasing of property requires such
qualification, except to the extent that the failure to be so qualified or be in
good standing would not reasonably be expected to have a material adverse effect
on Sprint and its subsidiaries, taken as a whole;
(ii) each Material Subsidiary of Sprint has been duly
incorporated or otherwise organized, is validly existing as a corporation,
limited liability company, or partnership, as the case may be, in good standing
under the laws of the jurisdiction of its incorporation or organization, has the
corporate, limited liability company, or partnership, as the case may be, power
and authority to own its property and to conduct its business as described in
the Prospectus and is duly qualified to transact business and is in good
standing in each jurisdiction in which the conduct of its business or its
ownership or leasing of property requires such qualification, except to the
extent that the failure to be so qualified or be in good standing would not
reasonably be expected to have a material adverse effect on Sprint and its
subsidiaries, taken as a whole;
(iii) the authorized equity capitalization of Sprint is as set
forth in the Prospectus under the captions "Authorized Capital Stock" and
"Capitalization", and the PCS Common Stock conforms in all material respects to
the description thereof contained in the Prospectus;
(iv) all outstanding shares of PCS Common Stock have been duly
authorized and are validly issued, fully paid and non-assessable;
(v) The Purchase Contract Shares subject to the Purchase
Contracts underlying the Securities have been duly authorized and reserved for
issuance by Sprint and, when issued and delivered in accordance with the
provisions of the Purchase Contract Agreement, will
be validly issued and fully paid and non-assessable; and the issuance
of such Purchase Contract Shares is not and will not be subject to
preemptive or other rights to subscribe for the Securities pursuant to
Sprint's Articles of Incorporation or the Kansas General Corporation
Code.
(vi) each of the Operative Documents and the
guarantees related to the Notes has been duly authorized, executed and
delivered by Sprint and/or Sprint Capital, as applicable, and each of
Sprint and Sprint Capital has the corporate power to enter into this
Agreement and perform its obligations hereunder;
(vii) the execution and delivery by Sprint and/or
Sprint Capital, as applicable, of, and the performance by Sprint and/or
Sprint Capital, as applicable, of their respective obligations under,
the Operative Documents (i) will not violate any provision of the
articles of incorporation or by-laws of Sprint and/or Sprint Capital
(ii) to such counsel's knowledge, will not violate any provision of law
applicable to Sprint or any of its subsidiaries, any agreement or other
instrument binding upon Sprint or any of its subsidiaries, or any
judgment, order or decree of any governmental body, agency or court
having jurisdiction over Sprint or any subsidiary, except in each case
set forth in this clause (ii) for violations that would not reasonably
be expected to have a material adverse effect on Sprint and its
subsidiaries, taken as a whole, or Sprint and Sprint Capital's ability
to perform their respective obligations hereunder; and no consent,
approval, authorization or order of, or qualification with, any
governmental body or agency is required for the execution, delivery or
performance of this Agreement by Sprint or Sprint Capital, except such
as may be required by the securities or Blue Sky laws of the various
states in connection with the offer and sale of the Securities;
(viii) to such counsel's knowledge, (a) there are no
legal or governmental proceedings pending or threatened to which Sprint
or any of its subsidiaries is a party or to which any of the properties
of Sprint or any of its subsidiaries is subject that are required to be
described in the Registration Statement or the Prospectus and are not
so described, (b) there are no statutes, regulations, contracts or
other documents that are required to be described in the Registration
Statement or the Prospectus that are not described as required and (c)
there are no contracts or other documents required to be filed as
exhibits to the Registration Statement that are not filed as required;
(ix) no filing with, or authorization, approval,
consent, license, order, registration, qualification or decree of, the
Federal Communications Commission is necessary or required for the due
authorization, execution or delivery by the Company of this Agreement
or for the performance by the Company of the transactions contemplated
under the Prospectus or this Agreement; and
(x) each document filed pursuant to the Exchange Act
and incorporated by reference in the Registration Statement and the
Prospectus (other than the financial statements and notes thereto, the
financial statement schedules and the other financial and statistical
data included or incorporated by reference therein and the Statement of
Eligibility (Form T-1) of the Trustee, as to which such counsel
expresses no opinion), as of its filing date, complied as to form in
all material respects with the Exchange Act and the rules and
regulations of the Commission thereunder.
In addition, such counsel shall state that although he does
not assume any responsibility for the accuracy, completeness or
fairness of the statements contained in the Registration Statement or
the Prospectus, nothing has come to his attention that causes such
counsel to believe that (a) the Registration Statement (other than the
financial statements and notes thereto, the financial statement
schedules and the other financial and statistical data included or
incorporated by reference therein and the Statement of Eligibility
(Form T-1) of the Trustee, as to which such counsel expresses no
belief), as of its effective date, contained an untrue statement of a
material fact or omitted to state any material fact required to be
stated therein or necessary to make the statements therein not
misleading or (b) the Prospectus (other than the financial statements
and notes thereto, the financial statement schedules and the other
financial and statistical data included or incorporated by reference
therein, as to which such counsel expresses no belief), as of its issue
date or, as amended or supplemented, if applicable, as of the Closing
Date, contained or contains an untrue statement of a material fact or
omits to state any material fact necessary in order to make the
statements therein, in the light of the circumstances under which they
were made, not misleading.
(e) The Underwriters shall have received on the Closing Date
an opinion of Cravath, Swaine & Xxxxx, counsel for the Underwriters,
dated the Closing Date, covering the matters referred to in Section
5(d)(iii), Section 5(c)(ii) (but only as to the statements in the
Prospectus under the caption "Underwriters") and in Section 5(c)(iv)
above.
With respect to the last paragraph in Section 5(c)(iv) above,
King & Spalding and Cravath, Swaine & Xxxxx may state that their belief
is based upon their participation in the preparation of the
Registration Statement and Prospectus and any amendments or supplements
thereto and documents incorporated by reference and review and
discussion of the contents thereof, but are without independent check
or verification, except as specified.
The opinions of King & Spalding described in Section 5(c) and
of Xxxxxx X. Xxxxx described in Section 5(d) shall be rendered to the
Underwriters at the request of the Company and shall so state therein.
(f) The Underwriters shall have received, on each of the date
hereof and the Closing Date, a letter dated the date hereof or the
Closing Date, as the case may be, in form and substance reasonably
satisfactory to the Underwriters, from Ernst & Young LLP, independent
public accountants, with respect to Sprint and Deloitte & Touche LLP,
independent public accountants, with respect to certain subsidiaries of
Sprint, containing statements and information of the type ordinarily
included in accountants' "comfort letters" to underwriters with respect
to the financial statements and certain financial information contained
in or incorporated by reference into the Registration Statement and the
Prospectus; provided that the letters delivered on the Closing Date
shall use a "cut-off date" not earlier than the date hereof.
(g) The Representatives and the Company shall have received
from counsel for the Purchase Contract Agent and the Collateral Agent
("Bank One, N.A."), such opinion or opinions, dated the Closing Date
and addressed to the Representatives and the Company to the effect
that:
(i) Bank One, N.A. is duly incorporated and is
validly existing as a banking corporation with trust powers
under the laws of the United States with all necessary power
and authority to execute, deliver and perform its obligations
under the Purchase Contract Agreement and the Pledge
Agreement;
(ii) the execution, delivery and performance by Bank
One, N.A. of the Purchase Contract Agreement and the Pledge
Agreement, and the authentication and delivery of the
Securities have been duly authorized by all necessary
corporate action on the part of Bank One, N.A. The Purchase
Contract Agreement and the Pledge Agreement have been duly
executed and delivered by Bank One, N.A., and constitute the
legal, valid and binding obligations of Bank One, N.A.,
enforceable against Bank One, N.A. in accordance with their
terms, subject, as to enforcement of remedies, to bankruptcy,
insolvency, reorganization, moratorium or similar laws
affecting the rights and remedies of creditors generally and
to the effect of general principles of equity;
(iii) the execution, delivery and performance
of the Purchase Contract Agreement Bank One, N.A. and
the Pledge Agreement Bank One, N.A. does not conflict with
or constitute a breach of the charter or by-laws of the
Purchase Contract Agent; and
(iv) no consent, approval or authorization
of, or registration with or notice to, any New York or federal
governmental authority or agency is required for the
execution, delivery or performance by Bank One, N.A. of the
Purchase Contract Agreement and the Pledge Agreement.
(h) As a condition to the obligations of the Company, there shall not
have occurred a Tax Event (as defined in the Purchase Contract
Agreement).
The Company shall have furnished to the Underwriters such
further information, certificates and documents as the Underwriters may
reasonably request.
The several obligations of the Underwriters to purchase
Additional Corporate Units hereunder are subject to the delivery to you
on the Option Closing Date of such documents as you may reasonably
request with respect to the good standing of the Company, the due
authorization and issuance of the Additional Corporate Units and other
matters related to the issuance of the Additional Corporate Units.
6. Covenants of the Company. In further consideration of the
agreements of the Underwriters herein contained, the Company covenants
with each Underwriter as follows:
(a) To furnish to each of you without charge, one signed copy
of the Registration Statement (including exhibits thereto and documents
incorporated by reference) and to each other Underwriter a conformed
copy of the Registration Statement (without exhibits thereto but
including documents incorporated by reference) and, during the period
mentioned in paragraph (c) below, as many copies of the Prospectus, any
documents incorporated by reference, and any supplements and amendments
thereto as you may reasonably request.
(b) Before amending or supplementing the Registration
Statement or the Prospectus, to furnish to you a copy of each such
proposed amendment or supplement (other than any document required to
be filed pursuant to the Exchange Act) and not to file any such
proposed amendment or supplement (other than any document required to
be filed pursuant to the Exchange Act) to which you reasonably object,
and to file with the Commission within the applicable period specified
in Rule 424(b) under the Securities Act any prospectus required to be
filed pursuant to such Rule.
(c) If, during such period after the first date of the public
offering of the Securities as in the opinion of counsel for the
Underwriters the Prospectus is required by law to be delivered in
connection with sales by an Underwriter or dealer, any event shall
occur or condition exist as a result of which it is necessary to amend
or supplement the Prospectus in order to make the statements therein,
in the light of the circumstances when the Prospectus is delivered to a
purchaser, not misleading, or if, in the opinion of counsel for the
Underwriters it is necessary to amend or supplement the Prospectus to
comply with applicable law, forthwith to prepare, file with the
Commission and furnish, at its own expense, to the Underwriters and to
the dealers (whose names and addresses you will furnish to the Company)
to which Securities may have been sold by you on behalf of the
Underwriters and to any other dealers upon request, either amendments
or supplements to the Prospectus so that the statements in the
Prospectus as so amended or supplemented will not, in the light of the
circumstances when the Prospectus is delivered to a purchaser, be
misleading or so that the Prospectus, as amended or supplemented, will
comply with law; provided that, notwithstanding the foregoing,
the expense of preparing, filing and furnishing any such amendment or
supplement to the Prospectus nine months or more after the first date
of the public offering shall be borne by the Underwriters or dealers
that are required to deliver the Prospectus, as amended or
supplemented.
(d) To endeavor to qualify the Securities for offer and sale
under the securities or Blue Sky laws of such jurisdictions as you
shall reasonably request; provided, however, that the Company will not
be required to qualify, register or take other actions with respect to
the Securities in any jurisdiction where, in order to do so, the
Company would have to qualify to do business as a foreign corporation
or to file a general consent to service of process.
(e) To make generally available to Sprint's security holders
and to you as soon as practicable, and in any event, not later than
eighteen months after the effective date of the Registration Statement
(as defined in Rule 158(c) under the Securities Act) an earnings
statement that satisfies the provisions of Section 11(a) of the
Securities Act and the rules and regulations of the Commission
thereunder.
7. Expenses. Whether or not the transactions contemplated in
this Agreement are consummated or this Agreement is terminated, the
Company agrees to pay or cause to be paid all expenses incident to the
performance of their obligations under this Agreement, including: (i)
the fees, disbursements and expenses of the Company's counsel and the
Company's accountants in connection with the registration and delivery
of the Securities under the Securities Act and all other fees or
expenses in connection with the preparation and filing of the
Registration Statement, any preliminary prospectus, the Prospectus and
amendments and supplements to any of the foregoing, including all
printing costs associated therewith, and the mailing and delivering of
copies thereof to the Underwriters and dealers, in the quantities
hereinabove specified, (ii) the cost of printing or producing any Blue
Sky or Legal Investment memorandum in connection with the offer and
sale of the Securities under state securities laws and all expenses in
connection with the qualification of the Securities for offer and sale
under state securities laws as provided in Section 6(d) hereof,
including filing fees and the reasonable fees and disbursements of
counsel for the Underwriters in connection with such qualification and
in connection with the Blue Sky or Legal Investment memorandum (which
shall not in any case exceed $5,000 without the written consent of the
Company), (iii) all filing fees and the reasonable fees and
disbursements of counsel to the Underwriters incurred in connection
with the review and qualification of the offering of the Securities by
the National Association of Securities Dealers, Inc., (iv) the cost of
printing certificates representing the Securities, (v) the costs and
charges of any transfer agent, registrar or depositary, (vi) the costs
and expenses of the Company relating to investor presentations on any
"road show" undertaken in connection with the marketing of the offering
of the Securities, including, without limitation, travel and lodging
expenses of the representatives and officers of the Company and the
cost of any aircraft owned by the Company or chartered by the Company
in connection with the road show (provided that the Underwriters will
reimburse the Company for the air travel expenses of the Underwriters
on any such aircraft at commercial rates currently in effect) and (vii)
all other costs and expenses incident to the performance of the
obligations of the Company hereunder for which provision is not
otherwise made in this Section. It is understood, however, that except
as provided in this Section, Section 8 entitled "Indemnity and
Contribution", and the last paragraph of Section 10 below, the
Underwriters will pay all of their costs and expenses, including fees
and disbursements of their counsel, stock transfer taxes payable on
resale of any of the Securities by them and any advertising expenses
connected with any offers they may make.
8. Indemnity and Contribution. (a) The Company agrees to
indemnify and hold harmless each Underwriter and each person, if any,
who controls any Underwriter within the meaning of either Section 15 of
the Securities Act or Section 20 of the Exchange Act from and against
any and all losses, claims, damages and liabilities (including, without
limitation, any legal or other expenses reasonably incurred in
connection with defending or investigating any such action or claim)
caused by any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement or any amendment
thereof, any preliminary prospectus or the Prospectus (as amended or
supplemented if the Company shall have furnished any amendments or
supplements thereto), or caused by 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, except insofar
as such losses, claims, damages or liabilities are caused by any such
untrue statement or omission or alleged untrue statement or omission
based upon information relating to any Underwriter furnished to the
Company in writing by or on behalf of any Underwriter through you
expressly for use therein; provided, however, that the foregoing
indemnity agreement with respect to any preliminary prospectus shall
not inure to the benefit of any Underwriter from whom the person
asserting any such losses, claims, damages or liabilities purchased
Securities, or any person controlling such Underwriter, if it shall be
established that a copy of the Prospectus was not sent or given by or
on behalf of such Underwriter to such person, if required by law so to
have been delivered, at or prior to the written confirmation of the
sale of the Securities to such person, and if the Prospectus would have
cured the defect giving rise to such losses, claims, damages or
liabilities, unless such failure is the result of noncompliance by the
Company with Section 6(a) or Section 6(c).
(b) Each Underwriter agrees, severally and not jointly, to
indemnify and hold harmless the Company, the directors of the Company,
the officers of the Company who sign the Registration Statement and
each person, if any, who controls the Company within the meaning of
either Section 15 of the Securities Act or Section 20 of the Exchange
Act from and against any and all losses, claims, damages and
liabilities (including, without limitation, any legal or other expenses
reasonably incurred in connection with defending or investigating any
such action or claim) caused by any untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement or
any amendment thereof, any preliminary prospectus or the Prospectus (as
amended or supplemented if the Company shall have furnished any
amendments or supplements thereto), or caused by any omission or
alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, but
only with reference to information relating to such Underwriter
furnished to the Company in writing by or on behalf of such Underwriter
through you expressly for use in the Registration Statement, any
preliminary prospectus, the Prospectus or any amendments or supplements
thereto.
(c) In case any proceeding (including any governmental
investigation) shall be instituted involving any person in respect of
which indemnity may be sought pursuant to Section 8(a) or 8(b), such
person (the "indemnified party") shall promptly notify the person
against whom such indemnity may be sought (the "indemnifying party") in
writing of the commencement thereof; but the failure so to notify the
indemnifying party (i) will not relieve such indemnifying party from
liability under paragraph (a) or (b) above unless and to the extent it
did not otherwise learn of such action and such failure results in the
forfeiture by the indemnifying party of substantial rights and defenses
and (ii) will not, in any event, relieve the indemnifying party from
any obligations to any indemnified party other than the indemnification
obligation provided in paragraph (a) or (b) above. The indemnifying
party, upon request of the indemnified party, shall retain counsel
reasonably satisfactory to the indemnified party to represent the
indemnified party and any others the indemnifying party may designate
in such proceeding and shall pay the fees and disbursements of such
counsel related to such proceeding. In any such proceeding, any
indemnified party shall have the right to retain its own counsel, but
the fees and expenses of such counsel shall be at the expense of such
indemnified party unless (i) the indemnifying party and the indemnified
party shall have mutually agreed to the retention of such counsel or
(ii) the named parties to any such proceeding (including any impleaded
parties) include both the indemnifying party and the indemnified party
and representation of both parties by the same counsel would be
inappropriate due to actual or potential differing interests between
them. It is understood that the indemnifying party shall not, in
respect of the legal expenses of any indemnified party in connection
with any proceeding or related proceedings in the same jurisdiction, be
liable for (i) the fees and expenses of more than one separate firm (in
addition to any local counsel) for all Underwriters and all persons, if
any, who control any Underwriter within the meaning of either Section
15 of the Securities Act or Section 20 of the Exchange Act and (ii) the
fees and expenses of more than one separate firm (in addition to any
local counsel) for the Company, its directors, its officers who sign
the Registration Statement and each person, if any, who controls the
Company within the meaning of either such Section. In the case of any
such separate firm for the Underwriters and such control persons of any
Underwriters, such firm shall be designated in writing jointly by the
Representatives. In the case of any such separate firm for the Company,
and such directors, officers and control persons of the Company, such
firm shall be designated in writing by the Company. The indemnifying
party shall not be liable for any settlement of any proceeding effected
without its written consent, but if settled with such consent or if
there be a final judgment for the plaintiff, the indemnifying party
agrees to indemnify the indemnified party from and against any loss or
liability by reason of such settlement or judgment. Notwithstanding the
foregoing sentence, if at any time an indemnified party shall have
requested an indemnifying party to reimburse the indemnified party for
fees and expenses of counsel as contemplated by the second and third
sentences of this paragraph, the indemnifying party agrees that it
shall be liable for any settlement of any
proceeding effected without its written consent if (i) such settlement
is entered into more than 30 days after receipt by such indemnifying
party of the aforesaid request, (ii) such request sets forth the terms
of the proposed settlement and (iii) such indemnifying party shall not
have reimbursed the indemnified party in accordance with such request
prior to the date of such settlement. No indemnifying party shall,
without the prior written consent of the indemnified party, effect any
settlement of any pending or threatened proceeding in respect of which
any indemnified party is or could have been a party and indemnitycould
have been sought hereunder by such indemnified party, unless such
settlement includes an unconditional release of such indemnified party
from all liability on claims that are the subject matter of such
proceeding.
(d) To the extent the indemnification provided for in Section
8(a) or 8(b) is unavailable to an indemnified party or insufficient in
respect of any losses, claims, damages or liabilities referred to
therein, then each indemnifying party under such paragraph, in lieu of
indemnifying such indemnified party thereunder, shall contribute to the
amount paid or payable by such indemnified party as a result of such
losses, claims, damages or liabilities (i) in such proportion as is
appropriate to reflect the relative benefits received by the
indemnifying party or parties on the one hand and the indemnified party
or parties on the other hand from the offering of the Securities or
(ii) if the allocation provided by clause 8(d)(i) above is not
permitted by applicable law, in such proportion as is appropriate to
reflect not only the relative benefits referred to in clause 8(d)(i)
above but also the relative fault of the indemnifying party or parties
on the one hand and of the indemnified party or parties on the other
hand in connection with the statements or omissions that resulted in
such losses, claims, damages or liabilities, as well as any other
relevant equitable considerations. The relative benefits received by
the Company, on the one hand, and the Underwriters, on the other hand,
in connection with the offering of the Securities shall be deemed to be
in the same respective proportions as the net proceeds from the
offering of the Securities (before deducting expenses) received by the
Company and the total underwriting discounts and commissions received
by the Underwriters, in each case as set forth in the table on the
cover of the Prospectus, bear to the aggregate Public Offering Price of
the Securities. The relative fault of the Company and the Underwriters
shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission
or alleged omission to state a material fact relates to information
supplied by the Company or the Underwriters and the parties' relative
intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission. The Underwriters' respective
obligations to contribute pursuant to this Section 8 are several in
proportion to the respective number of Securities they have purchased
hereunder, and not joint.
(e) The Company and the Underwriters agree that it would not
be just or equitable if contribution pursuant to this Section 8 were
determined by pro rata allocation (even if the Underwriters were
treated as one entity for such purpose) or by any other method of
allocation that does not take account of the equitable considerations
referred to in Section 8(d). The amount paid or payable by an
indemnified party as a result of the losses, claims, damages and
liabilities referred to in the immediately preceding paragraph shall be
deemed to include, subject to the limitations set forth above, any
legal or other expenses reasonably incurred by such indemnified party
in connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 8, no Underwriter shall
be required to contribute any amount in excess of the amount by which
the total price at which the Securities underwritten by it and
distributed to the public were offered to the public exceeds the amount
of any damages that such Underwriter has otherwise been required to pay
by reason of such untrue or alleged untrue statement or omission or
alleged omission. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) shall be
entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The remedies provided for in this Section
8 are not exclusive and shall not limit any rights or remedies which
may otherwise be available to any indemnified party at law or in
equity.
(f) The indemnity and contribution provisions contained in
this Section 8 and the representations, warranties and other statements
of the Company contained in this Agreement shall remain operative and
in full force and effect regardless of (i) any termination of this
Agreement, (ii) any investigation made by or on behalf of any
Underwriter or any person controlling any Underwriter, or the Company,
its officers or directors or any person controlling the Company and
(iii) acceptance of and payment for any of the Securities.
9. Termination. This Agreement shall be subject to termination
by notice given by you to the Company, if (a) after the execution and
delivery of this Agreement and prior to the Closing Date (i) trading
generally shall have been suspended or materially limited on the New
York Stock Exchange, (ii) trading of any securities of the Company
shall have been suspended on any exchange or in any over-the-counter
market, (iii) a general moratorium on commercial banking activities in
New York shall have been declared by either Federal or New York State
authorities or (iv) there shall have occurred any outbreak or
escalation of hostilities or any calamity or crisis that, in your
judgment, is material and adverse and (b) in the case of any of the
events specified in clauses 9(a)(i) through 9(a)(iv), such event,
singly or together with any other such event, makes it, in your
judgment, impracticable to market the Firm Corporate Units on the terms
and in the manner contemplated in the Prospectus.
10. Effectiveness; Defaulting Underwriters. This Agreement
shall become effective upon the execution and delivery hereof by the
parties hereto.
If, on the Closing Date or the Option Closing Date, as the case may be,
any one or more of the Underwriters shall fail or refuse to purchase
Securities that it has or they have agreed to purchase hereunder on
such date, and the aggregate number of Securities which such defaulting
Underwriter or Underwriters agreed but failed or refused to purchase is
not more than one-tenth of the aggregate number of the Securities to be
purchased on such date, the other Underwriters shall be obligated
severally in the proportions that the number of Firm Corporate Units
set forth opposite their respective names in Schedule II bears to the
aggregate number of Firm Corporate Units set forth opposite the names
of all such non-defaulting Underwriters, or in such other proportions
as you may specify, to purchase the Securities which such defaulting
Underwriter or Underwriters agreed but failed or refused to purchase on
such date; provided that in no event shall the number of Securities
that any Underwriter has agreed to purchase pursuant to this Agreement
be increased pursuant to this Section 10 by an amount in excess of
one-ninth of such number of Securities without the written consent of
such Underwriter. If, on the Closing Date, any Underwriter or
Underwriters shall fail or refuse to purchase Firm Corporate Units and
the aggregate number of Firm Corporate Units with respect to which such
default occurs is more than one-tenth of the aggregate number of Firm
Corporate Units to be purchased, and arrangements satisfactory to you
and the Company for the purchase of such Firm Corporate Units are not
made within 36 hours after such default, this Agreement shall terminate
without liability on the part of any non-defaulting Underwriter or the
Company. In any such case either you or the Company shall have the
right to postpone the Closing Date, but in no event for longer than
seven days, in order that the required changes, if any, in the
Registration Statement and in the Prospectus or in any other documents
or arrangements may be effected. If, on the Option Closing Date, any
Underwriter or Underwriters shall fail or refuse to purchase Additional
Corporate Units and the aggregate number of Additional Corporate Units
with respect to which such default occurs is more than one-tenth of the
aggregate number of Additional Corporate Units to be purchased, the
non-defaulting Underwriters shall have the option to (i) terminate
their obligation hereunder to purchase Additional Corporate Units or
(ii) purchase not less than the number of Additional Corporate Units
that such non-defaulting Underwriters would have been obligated to
purchase in the absence of such default. Any action taken under this
paragraph shall not relieve any defaulting Underwriter from liability
in respect of any default of such Underwriter under this Agreement.
If this Agreement shall be terminated by the Underwriters, or
any of them, (i) because of any failure or refusal on the part of the
Company to comply with the terms or to fulfill any of the conditions of
this Agreement, (ii) pursuant to Section 9 or (iii) if for any reason
the Company shall be unable to perform its obligations under this
Agreement, the Company will reimburse the Underwriters or such persons
as have so terminated this Agreement with respect to themselves,
severally, for all out-of-pocket expenses (including the fees and
disbursements of their counsel) reasonably incurred by such persons in
connection with this Agreement or the offering contemplated hereunder.
11. Counterparts. This Agreement may be signed in two or more counterparts,
each of which shall be an original, with the same effect as if the signatures
thereto and hereto were upon the same instrument.
12. Notices. All communications under this Agreement will be in writing and
effective only on receipt, and, if sent to the Underwriters, will be mailed,
delivered or telefaxed to X.X. Xxxxxx Securities Inc., 00 Xxxx Xxxxxx, Xxx Xxxx,
XX 00000 (fax no. (000) 000-0000), attention Legal Department, Xxxxxxx Lynch,
Pierce, Xxxxxx and Xxxxx Incorporated, 0 Xxxxx Xxxxxxxxx Xxxxxx, Xxx Xxxx, XX
00000 (fax no. (000) 000-0000), attention Xxxxx Xxxxxx, and UBS Warburg LLC, 000
Xxxx Xxxxxx, Xxx Xxxx, XX 00000 (fax no. (000) 000-0000), attention Legal
Department or if sent to the Company, will be mailed, delivered or telefaxed to
Sprint Corporation, 0000 Xxxxxxx Xxxxxxx Xxxxxxx, Xxxxxxxx, XX 00000, U.S.A.,
attention Corporate Secretary (fax no. (000) 000-0000), and if faxed, any such
notice shall be confirmed in writing, with a copy to King & Spalding, 0000
Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, XX 00000, attention Xxxx X. Xxxxxxx, Esq. (fax
no. (000) 000-0000).
13. Governing Law; Dispute Resolution. (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) The Company irrevocably consents and agrees that any legal action, suit
or proceeding by the Underwriters or any person controlling any of the
Underwriters (a "Specified Party") with respect to their rights, 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 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 the Borough of
Manhattan, New York City, and the Company hereby irrevocably waives any claim
that such proceeding has been brought in an inconvenient forum and 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,
without limitation, claims for interim relief, counterclaims, actions with
multiple defendants and actions in which such party is implied), it being
understood that this provision inures to the benefit only of Specified Parties
and no third parties. The Underwriters and the Company hereto irrevocably and
unconditionally waive any right that they 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. The Company 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, with copies to counsel as
specified under Section 12, such service of process to be effective upon
acknowledgment of receipt
of such registered mail. Nothing herein shall affect the right of the
Underwriters or any person controlling the Underwriters to serve process in any
other manner permitted by applicable law. The Company and the Underwriters
expressly acknowledge that the foregoing waivers are intended to be irrevocable
under the laws of the State of New York and of the United States of America.
14. Headings. The headings of the sections of this Agreement have been
inserted for convenience of reference only and shall not be deemed a part of
this Agreement.
Very truly yours,
Sprint Corporation
By:____________________________
Name:
Title:
Sprint Capital Corporation
By:____________________________
Name:
Title:
Accepted as of the date hereof
X.X. Xxxxxx Securities Inc.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
UBS Warburg LLC
Acting severally on behalf
of themselves and the
several Underwriters named
in Schedule II hereto.
By: X.X. Xxxxxx Securities Inc.
By:____________________________
Name:
Title:
By: Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
By:
----------------------------
Name:
Title:
By: UBS Warburg LLC
By:____________________________
Name:
Title:
By:____________________________
Name:
Title:
SCHEDULE I
Number of Firm Number of Additional
Equity Units to be Sold Equity Units to be Sold
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SCHEDULE II
Number of
Firm Corporate Units
Underwriter To Be Purchased
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