Exhibit 10(b)
EXECUTION COPY
OFFERING PROCESS AGREEMENT
AMONG
FRANCE TELECOM,
DEUTSCHE TELEKOM AG,
NAB NORDAMERIKA BETEILIGUNGS HOLDING GmbH
AND
SPRINT CORPORATION
Dated as of February 20, 2001
OFFERING PROCESS AGREEMENT
THIS OFFERING PROCESS AGREEMENT, dated as of February 20, 2001 (this
"Agreement"), is entered into by and among France Telecom, a societe anonyme
organized under the laws of France ("FT"); Deutsche Telekom AG, an
Aktiengesellschaft organized under the laws of Germany ("DT"); NAB Nordamerika
Beteiligungs Holding GmbH, a limited liability company duly organized under the
laws of Germany and a wholly owned subsidiary of DT ("NAB"); and Sprint
Corporation, a corporation organized under the laws of the State of Kansas
("Sprint"). FT, DT, NAB and Sprint are collectively referred to herein as the
"Parties." Terms used and not defined herein have the meanings assigned to such
terms in the Sprint Articles of Incorporation.
WHEREAS, each of FT, DT, NAB and Sprint is a party to the Amended and
Restated Registration Rights Agreement, dated as of November 23, 1998 (as
amended by the Master Transfer Agreement (the "Master Transfer Agreement"),
dated as of January 21, 2000, between and among FT, DT, NAB, Atlas
Telecommunications S.A., a societe anonyme duly organized under the laws of
Belgium, the JV Entities and Sprint, the "Registration Rights Agreement");
WHEREAS, each of FT, DT and NAB proposes to dispose of shares of FON Stock
in an underwritten public offering;
WHEREAS, Sprint proposes to sell newly issued shares of PCS Stock in a
separate underwritten public offering; and
WHEREAS, in connection with such offerings, Sprint, on the one hand, and
FT, DT and NAB, on the other hand, wish to set forth an agreed upon method of
complying with the provisions of, and to amend certain provisions of, the
Registration Rights Agreement;
NOW, THEREFORE, in consideration of the 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 Sprint, FT, DT
and NAB, intending to be legally bound, hereby agrees as follows:
Section 1. FON Stock Offering
(a) Request. FT, DT and NAB (each a "Selling Stockholder," and
collectively the "Selling Stockholders") hereby request Sprint, pursuant to
Section 1.1 of the Registration Rights Agreement, to effect the registration of
shares of Series 3 FON Stock and shares of Series 3 FON Stock issuable with
respect to the Class A Common Stock (together, "FT/DT FON Stock") owned by them
in connection with an underwritten public offering of such shares (the "FON
Offering") to be conducted in accordance with the terms of this Agreement.
(b) Number and Designation of Shares. The Selling Stockholders hereby
request that Sprint register for sale in the FON Offering all shares of Series 3
FON Stock, and all shares of Series 3 FON Stock issuable with respect to shares
of Class A Common Stock, held by the Selling Stockholders and their Affiliates.
The parties acknowledge that the registration statement and prospectus for the
FON Offering shall indicate the registration and offering of such shares by
designating the registration of shares of Series 1 FON Stock.
(c) Exercise of Request Registration Rights. Subject to the terms of
the Registration Rights Agreement, the request set forth in Section 1(a) hereof
shall count as one registration request under the Registration Rights Agreement.
Notwithstanding the foregoing, for purposes of clause (i) of the first proviso
to Section 1.1(a) of the Registration Rights Agreement, the registration for the
FON Offering shall be deemed to have been effected as of the date that the
registration statement for the FON Offering is declared effective, unless the
FON Offering is not completed, in which case the FON Offering shall be deemed to
have been effected on the date of the first printed preliminary prospectus for
the FON Offering (unless such registration does not become effective under the
Securities Act due to material adverse developments involving Sprint or actions
taken by Sprint) or at such time, if any, after filing and prior to such
printing that the FON Offering is terminated pursuant to Section 3(b)(A) or (B)
hereof (unless such termination shall have resulted from material adverse
developments involving Sprint or actions taken by Sprint).
(d) Sprint Participation. Sprint shall not seek to sell any securities
in the FON Offering.
Section 2. PCS Stock Offering
(a) Proposed Offering. Sprint proposes to complete, during 2001, in
accordance with the terms of this Agreement, an underwritten public offering of
newly issued shares of PCS Stock (the first such offering completed by Sprint in
2001 is referred to as the "PCS Offering").
(b) Selling Stockholder Participation. None of the Selling
Stockholders shall seek to sell any securities in the PCS Offering, and
accordingly, with respect to the PCS Offering, each of the Selling Stockholders
hereby waives the right to receive notice of, and the right to exercise, any
incidental registration rights granted to the Selling Stockholders pursuant to
Section 1.2 of the Registration Rights Agreement.
Section 3. Timing of Offerings
(a) Filing of Registration Statements. Sprint shall, promptly after
the execution of this Agreement, file with the Securities and Exchange
Commission (the "Commission") a registration statement for the FON Offering.
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(b) Completion or Suspension of FON Offering. Sprint shall, subject to
the terms of the Registration Rights Agreement, use reasonable efforts to cause
the registration statement filed with respect to the FON Offering to become
effective under the Securities Act. Each of Sprint and the Selling Stockholders
shall use reasonable efforts to pursue the completion of the FON Offering. Prior
to the date of the first printed preliminary prospectus for the FON Offering,
the Selling Stockholders may change the number of their respective shares of
FT/DT FON Stock to be offered in the FON Offering and one (but not both) Selling
Stockholders may withdraw from the FON Offering. If (A) Selling Stockholders
holding a majority of the securities to be registered for sale in the FON
Offering notify Sprint that they have determined in good faith, at any point
during the FON Offering, that market conditions are not suitable for completion
of the FON Offering, or (B) the FON Offering is not completed within twenty-five
(25) business days following the Trigger Date, then Sprint shall, in the case of
clause (A) and may, if it so elects in its sole discretion, in the case of
clause (B), promptly terminate its efforts to complete the FON Offering and
shall be permitted, until December 31, 2001, to pursue the PCS Offering, as set
forth below, in lieu of pursuing the FON Offering. If the FON Offering is so
terminated, any future offering of FON Stock by any of the Selling Stockholders
shall not be considered the "FON Offering" for purposes of this Agreement. The
"Trigger Date" means the earlier of (1) the date on which the staff of the
Commission advises Sprint, and Sprint advises the other Parties, that the
Commission has no comments or no further comments on the registration statement
as then filed ("SEC Clearance") and (2) the date of the first printed
preliminary prospectus for the FON Offering; provided, however, that after April
30, 2001, the 25 business day period set forth in clause (B) above shall be
tolled for any period following the date of SEC Clearance date during which
Sprint has suspended its efforts to complete the FON Offering, as described
below. If preliminary prospectuses for the FON Offering have not been printed on
or before April 30, 2001 (May 3, 2001 if SEC Clearance is received between April
26, 2001 and April 30, 2001) (or, in either case, such later date as Sprint may
determine in its sole discretion), then at any one time after such date, if
Sprint intends within the following 14 days, or such longer period as Sprint
determines is reasonably necessary, but in no event longer than within the
following 30 days, to print preliminary prospectuses in order to commence
marketing for the PCS Offering, and so informs the requesting Selling
Stockholders in writing, Sprint may, if it so elects in its sole discretion, and
if the preliminary prospectuses have not yet been printed for the FON Offering,
suspend its efforts to complete the FON Offering for so long as Sprint continues
to use reasonable efforts to pursue the PCS Offering. If Sprint so elects, then
the Selling Stockholders may, beginning on the date that is thirty (30) days
after completion of the PCS Offering (or immediately if Sprint abandons the PCS
Offering), request that Sprint resume reasonable efforts to cause the
registration statement filed with respect to the FON Offering to become
effective and to perform its other obligations with respect to the FON Offering
under this Agreement, and, if so requested, Sprint shall, subject to the
provisions of the Registration Rights Agreement (including Section 1.4 thereof),
do so. Sprint shall provide prompt written notice to each Selling Stockholder if
it elects to abandon or otherwise terminate the PCS Offering. Any such request
by the Selling Stockholders that Sprint resume the FON Offering shall not be
deemed to be an additional registration request by the Selling Stockholders
under the Registration Rights Agreement.
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(c) Commencement of PCS Offering Road Show. No "road show" or other
series of presentations to prospective investors for the PCS Offering shall
commence until at least two (2) weeks following the execution of the
underwriting agreement for the FON Offering.
Section 4. Announcements. The Selling Stockholders agree to use
commercially reasonable efforts to coordinate their public announcements
regarding the PCS Offering, if any, with Sprint. The Selling Stockholders and
Sprint agree to use commercially reasonable efforts to coordinate their public
announcements regarding the FON Offering.
Section 5. Lockups Agreements; Amendment to Registration Rights Agreement.
(a) Lockup Restrictions.
(i) Sprint FON Restriction. Sprint acknowledges and confirms,
pursuant to Section 1.5(c)(ii) of the Registration Rights Agreement, as
amended by Section 5(b) hereof, that Sprint shall not effect any public
sale or distribution of shares of FON Stock or securities convertible into
or exchangeable or exercisable for shares of FON Stock during the ten days
before and the ninety days after the registration of the FON Offering has
become effective.
(ii) Selling Stockholders' PCS Stock Restriction. In addition to
Section 3(b), each of the Selling Stockholders acknowledges and agrees
that, until the earliest to occur of (x) November 15, 2001, if Sprint has
not publicly announced its intention to commence the PCS Offering by such
date, (y) 180 days following the closing of the PCS Offering (if the PCS
Offering is closed by December 31, 2001) and (z) January 1, 2002 (if the
PCS Offering is not closed by December 31, 2001) (such earliest date being
referred to as the "Lockup Termination Date"), none of the Selling
Stockholders or their subsidiaries shall transfer, sell, monetize, hedge or
otherwise dispose of, or request registration pursuant to Section 1.1 of
the Registration Rights Agreement of, any PCS Stock (including shares of
PCS Stock issuable in respect of the shares of Class A Common Stock held by
the Selling Stockholders) or securities convertible into or exchangeable or
exercisable for such shares. Notwithstanding any of the foregoing or any
provision of the Amended and Restated Stockholders' Agreement among FT, DT
and Sprint, dated as of November 23, 1998, as amended by the Master
Transfer Agreement dated January 21, 2000 (as amended, the "Stockholders'
Agreement"), during the period from the date hereof through the Lockup
Termination Date:
(A) The Selling Stockholders may, alone or in conjunction with Third
Parties, as defined below, sell such shares pursuant to Rule 144 under
the Securities Act and/or enter into hedging transactions with respect
to such shares, in either case, with the prior written consent of
Sprint, which consent shall not be unreasonably withheld.
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(B) The Selling Stockholders may at any time until December 31, 2001,
acting alone or together, transfer Sprint securities to one or a
limited number of special purpose vehicles or other financial
intermediaries or financial institutions for the benefit of FT or DT
(collectively "Third Parties"), which would agree to be bound by the
provisions of Sections 8, this Section 5(a)(ii) hereof (in the case of
Third Parties that hold PCS Stock) and Section 5(b)(i) hereof (in the
case of Third Parties that hold FON Stock), except that Third Parties
may borrow against those Sprint securities or use such Sprint
securities as collateral, or engage in swap or hedging transactions
with any of the Selling Stockholders, but not involving other third
parties, to transfer the risk of ownership of such securities to such
Selling Stockholder (by way of clarification, a Third Party, as a
result of being so bound, would not be permitted to sell short or
engage in any transaction that is the equivalent of a sale with any
party other than the Selling Stockholders, without Sprint's consent).
Third Parties, to the extent permitted by Section 5(a)(ii) and Section
5(b)(i) hereof, would be permitted to transfer, sell, monetize, hedge
or otherwise dispose of (A) FON Stock, immediately following the FON
Offering or any abandonment thereof (subject to Section 5(b)(i)
hereof) if any FON Stock remains unsold after the FON Offering, (B)
PCS Stock, beginning on the Lockup Termination Date, and (C) FON Stock
and PCS Stock at any time upon obtaining Sprint's prior written
consent; such consent not to be unreasonably withheld. If Selling
Stockholders elect to cause the Third Parties to make a public sale of
Sprint securities, then the Selling Stockholders will be permitted to
exercise their rights under the Registration Rights Agreement for the
benefit of the Third Parties, and, if all or substantially all of the
PCS Stock or FON Stock, as applicable, held by the Selling
Stockholders and their subsidiaries are offered in such public sale,
including for this purpose shares that are offered to cover
underwriter over-allotments, then such rights under Section 1.3(j) of
the Registration Rights Agreement shall be deemed to include the
rights set forth in Section 7 hereof as to such sale. Any (x) Third
Party that is a special purpose subsidiary of a Selling Stockholder
and (y) Third Party that acquires Sprint securities from the Selling
Stockholders with more than five percent of the Voting Power of Sprint
would agree to be bound by the Standstill Agreement and Section 2.4 of
the Stockholders' Agreement, to the same extent as the relevant
Selling Stockholder.
(C) In a manner not prohibited by the Standstill Agreement, the Selling
Stockholders may at any time, acting alone or together, transfer
Sprint securities by tendering their shares into a bona fide tender
offer or exchange offer made to all holders of Sprint securities which
does not involve a violation of the Standstill Agreement.
(b) Amendments to Registration Rights Agreement.
(i) Amendment to Section 1.5(c)(i). Effective as of the date
hereof, Section 1.5(c)(i) of the Registration Rights Agreement is hereby
amended by substituting the following in replacement thereof:
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"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 a
holder of Eligible Securities has a right to participate has become
effective, such holder of Eligible Securities agrees by becoming a
holder of such Eligible Securities not to effect any public sale or
distribution of shares of the same class of equity securities of the
Company offered in such underwritten registration, or any securities
convertible into or exchangeable or exercisable for shares of such
class of equity securities, including a sale pursuant to Rule 144
under the Securities Act (or any similar provision then in force),
except as part of such underwritten registration."
(ii) Amendment to Section 1.5(c)(ii). Effective as of the date
hereof, Section 1.5(c)(ii) of the Registration Rights Agreement is hereby
amended by deleting the following clause:
"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"
and by replacing such clause with the following:
"During the ten days before and the 90 days after any underwritten
registration pursuant to Section 1.1 or 1.2 has become effective, the
Company agrees not to effect any public sale or distribution of shares
of the same class of equity securities offered in such underwritten
registration, or securities convertible into or exchangeable or
exercisable for shares of such class of equity securities"
(iii) Amendment to Section 1.3(a). Effective as of the date
hereof, Section 1.3(a) of the Registration Rights Agreement shall be
amended such that after the words " ...before filing such registration
statement or any amendments thereto," the following parenthetical shall be
inserted: "(for purposes of this subsection, amendments shall not be deemed
to include any filing that the Company is required to make pursuant to the
Exchange Act)".
Section 6. Managing Underwriters.
(a) Selection of Managing Underwriters. Xxxxxxx Xxxxx, Xxxxxx Xxxxxxx
Xxxx Xxxxxx and UBS Warburg LLC shall act as the book running managing
underwriters for the FON Offering (each an "Underwriter," and collectively, the
"Managing Underwriters").
(b) Compensation of Managing Underwriters. Any selling commissions,
discounts or other compensation to be received by the Managing Underwriters
shall be divided equally among the three Managing Underwriters.
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Section 7. Road Shows. In connection with the FON Offering, as appropriate
in light of the size of the FON Offering indicated in the first preliminary
prospectus that is printed, Sprint shall provide special assistance to the
Underwriters in their selling efforts, including, but not limited to (i) the
preparation of "road show" materials and (ii) the participation of certain
members of Sprint's management in such "road show."
Section 8. Voting Agreement. With respect to each Selling Stockholder,
until the earlier of (a) July 15, 2001 and (b) the time at which such Selling
Stockholder and its subsidiaries have disposed of all of their shares of capital
stock of Sprint, FT, DT and NAB and their subsidiaries hereby irrevocably agree,
at any special meeting or any other meeting of stockholders of Sprint, however
called, and in any action by written consent of stockholders of Sprint, to vote
(or cause to be voted) or execute a written consent as to all shares of capital
stock of Sprint held by such party and its subsidiaries (A) as to FT and its
subsidiaries, in favor of the adoption or approval or against any proposal
relating to the matters set forth on Exhibit A, as indicated on Exhibit A, and
in a manner at least as favorable to Sprint ("favorable" meaning in accordance
with the recommendation of the Sprint Board of Directors) as for and/or against
any other proposal that is voted upon, in proportion to the number of votes cast
for and against such proposal by the holders of voting capital stock of Sprint
who are not Selling Stockholders or their subsidiaries, and (B) as to DT and NAB
and their subsidiaries, in a manner at least as favorable to Sprint ("favorable"
meaning as specified in Exhibit A as to proposals relating to the matters on
Exhibit A, and in accordance with the recommendation of the Sprint Board of
Directors as to other proposals) as for and/or against any proposal that is
voted upon, in proportion to the number of votes cast for and against such
proposal by the holders of voting capital stock of Sprint other than the Selling
Stockholders; provided that this Section 8 shall not affect the right of the
Selling Stockholders and their subsidiaries to vote any shares of capital stock
of Sprint in their sole discretion as to extraordinary corporate transactions
such as a merger, or consolidation, disposition of all or substantially all
assets, dissolution or liquidation involving Sprint or an acquisition of all or
substantially all of the assets of Sprint. For purposes of this Section 8, the
Selling Stockholders and their subsidiaries shall be deemed to have retained any
shares of capital stock of Sprint that are owned at the time of a record date
for any meeting of Sprint stockholders through the date of the related meeting
of Sprint stockholders.
Section 9. Miscellaneous.
(a) Effect of Registration Rights Agreement. The Registration Rights
Agreement shall remain in full force and effect and shall govern as to the FON
Offering; provided, however, that this Agreement shall control as to any matter
inconsistent with the Registration Rights Agreement; provided, further, that
nothing in this Agreement (other than Section 5(b)) shall be deemed to modify
the parties' respective rights and duties under the Registration Rights
Agreement as to offerings and activities of the Parties other than the FON
Offering and the PCS Offering.
(b) 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
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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. Any transfer to a Third Party permitted
by Section 5 shall require a written assumption of the terms of this Agreement
by such transferee.
(c) Binding Agreement; No Third Party Beneficiaries. This Agreement
will be binding upon and inure to the benefit of the Parties and their
successors and permitted assigns. Except as set forth herein and by operation of
law, no Party may assign or delegate all or any portion of its rights,
obligations or liabilities under this Agreement without the prior written
consent of each of the other Parties 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.
(d) Governing Law; Dispute Resolution; Equitable Relief.
(i) 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).
(ii) 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 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 SELLING STOCKHOLDERS 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 EACH OF THE SELLING
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STOCKHOLDERS IN THE MANNER PROVIDED HEREIN. EACH OF THE SELLING STOCKHOLDERS
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 EACH OF THE SELLING
STOCKHOLDERS 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 THE SELLING
STOCKHOLDERS 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 THE SELLING STOCKHOLDERS 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.
(iii) 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 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, TO THE EXTENT PERMITTED BY LAW, 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.
(e) 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
term or other provision of this Agreement is invalid, illegal or incapable of
being enforced by any law or public policy, all other terms and provisions of
this Agreement shall nevertheless remain in full force and effect so long as the
economic or legal substance of the transactions contemplated hereby is not
affected in any manner materially adverse to any Party. Upon such
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determination that any term or other provision is invalid, illegal or incapable
of being enforced, the Parties shall negotiate in good faith to modify this
Agreement so as to effect the original intent of the Parties as closely as
possible in an acceptable manner in order that the transactions contemplated
hereby are consummated as originally contemplated to the greatest extent
possible.
(f) Headings; Counterparts. 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.
(g) Waiver of Immunity. Each of the Selling Stockholders 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, from service of process, from attachment
prior to judgment, from attachment in aid of execution of a judgment, from
execution pursuant to a judgment or 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 the Selling Stockholders 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 the Selling
Stockholders with respect to this Agreement.
(h) Waivers and Consents. Any Party to this Agreement may (i) extend
the time for the performance of any of the obligations or other acts of the
other Parties, or (ii) waive compliance with any of the agreements or conditions
of the other Parties contained herein. Any such extension or waiver shall be
valid only if set forth in writing signed by the Party to be bound thereby. Any
waiver of any term or condition shall not be construed as a waiver of any
subsequent breach or a subsequent waiver of the same term or condition, or a
waiver of any other term or condition, of this Agreement. The failure of any
Party to assert any of its rights hereunder shall not constitute a waiver of any
of such rights. Waivers or consents by the Selling Stockholders pursuant to this
Agreement shall be effective if granted by Selling Stockholders holding at least
a majority of the shares to be registered for sale in the FON Offering.
(i) Expenses. Except as may otherwise be specified in this Agreement
or the Registration Rights Agreement, all costs and expenses, including fees and
disbursements of counsel, financial advisors and accountants, incurred in
connection with this Agreement and the transactions contemplated hereby shall be
paid by the Party incurring such costs and expenses.
(j) Notices. All notices, requests, claims, demands and other
communications hereunder shall be in writing, in English, and shall be given or
made by delivery in person, by courier service, by telecopy, by e-mail or by
registered or certified mail (postage prepaid, return
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receipt requested) to the respective Parties at the following addresses (or at
such other address for a Party as shall be specified in a notice given in
accordance with this Section):
(i) If to FT:
0 xxxxx x'Xxxxxxx
00000 Xxxxx Xxxxx 00
Xxxxxx
Telephone: 00-0-00-00-00-00
Telecopy: 00-0-00-00-00-00
Attention: Senior Executive Vice President and
Chief Financial Officer
(e-mail: xxxxxxxxx.xxxxxxxxxxx@xxxxxxxxxxxxx.xxx)
with copies (which shall not constitute notice to FT) to:
0 xxxxx x'Xxxxxxx
00000 Xxxxx Xxxxx 00
Xxxxxx
Telephone: 00-0-00-00-00-00
Telecopy: 00-0-00-00-00-00
Attention: Chief Legal and Tax Officer
(e-mail: xxxxxxxx.xxxxxxxxx@xxxxxxxxxxxxx.xxx)
and
Shearman & Sterling
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
X.X.X.
Telephone: 0 (000) 000-0000
Telecopy: 0 (000) 000-0000
Attention: Xxxxxx X. Xxxx, Esq.
(e-mail: xxxxx@xxxxxxxx.xxx)
(ii) If to DT and NAB:
Xxxxxxxxx-Xxxxx-Xxxxx 000
X-00000 Xxxx
Xxxxxxx
Telephone: 00-000-000-0000
Telecopy: 00-000-000-0000
Attention: Xxxxxxx Xxxxxxx
(e-mail: xxxxxxx@xxxxxxx.xx)
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with a copy (which shall not constitute notice to DT and
NAB) to:
Cleary, Gottlieb, Xxxxx & Xxxxxxxx
Xxx Xxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
X.X.X.
Telephone: 0 (000) 000-0000
Telecopy: 1 (212) 225-3999
Attention: Xxxxxx X. Xxxxx, Esq.
(e-mail: xxxxxx@xxxx.xxx)
(iii) If to Sprint:
2330 Shawnee Mission
Parkway, East Wing
Xxxxxxxx, Xxxxxx 00000
X.X.X.
Telephone: 0 (000) 000-0000
Telecopy: 0 (000) 000-0000
Attention: General Counsel
(e-mail: Xxxxxxx.Xxxxxx@xxxx.xxxxxx.xxx)
and
King & Spalding
000 Xxxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxx 00000
X.X.X.
Telephone: 0 (000) 000-0000
Telecopy: 1 (404) 572-5100
Attention: Xxxxx X. Xxxxxxxxx, Esq.
(e-mail: xxxxxxxxxx@xxxxx.xxx)
All such notices shall be deemed to have been duly given or made upon receipt;
provided, however, that a notice sent via telecopy or e-mail shall only be
deemed to have been duly given or made on the date that the sender thereof
confirms it via courier service or by registered or certified mail (return
receipt requested).
(l) Entire Agreement. This Agreement, together with, subject to
Section 9(a) hereof, the Registration Rights Agreement, constitute the entire
agreement of the Parties with respect to the subject matter hereof and thereof
and supersede all prior agreements and undertakings, both written and oral,
among the Parties with respect to the subject matter hereof and thereof.
(m) Amendment. This Agreement may not be amended or modified except by
an instrument in writing signed by the Parties.
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(n) No Partnership. Nothing in this Agreement shall authorize any
Party to act as an agent or representative of any of the others (or any of them)
or to authorize any such Party to assume or create an obligation on behalf of
the other (or others), except as expressly provided in this Agreement.
(o) Terms Generally. Whenever the context may require, any pronoun
includes the corresponding masculine, feminine and neuter forms. Any term
defined by reference to any agreement, instrument or document has the meaning
assigned to it whether or not such agreement, instrument or document is in
effect. The words "include", "includes" and "including" are deemed to be
followed by the phrase "without limitation". Unless the context otherwise
requires, any agreement, instrument or other document defined or referred to
herein refers to such agreement, instrument or other document as from time to
time amended, supplemented or otherwise modified from time to time. Unless the
context otherwise requires, references herein to any Party include its
successors and assigns.
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IN WITNESS WHEREOF, the parties have caused this Offering Process Agreement
to be executed and delivered as of the date first above written.
SPRINT CORPORATION
By: /s/ Xxxxxx X. Xxxxx
Name: Xxxxxx X. Xxxxx
Title: Vice President
FRANCE TELECOM
By: /s/ Xxxx Xxxxx Xxxxxxxxxxx
Name: Xxxx Xxxxx Xxxxxxxxxxx
Title: Senior Executive Vice President and
Chief Financial Officer
DEUTSCHE TELEKOM AG
By: /s/ Xxxx-Xxxxxxx Xxxx
Name: Xxxx-Xxxxxxx Xxxx
Title: Chief Financial Officer
NAB NORDAMERIKA BETEILIGUNGS HOLDING GmbH
By: /s/ Xxxxxxx Xxxxxxx
Name: Xx. Xxxxxxx Xxxxxxx
Title: Managing Director
By: /s/ Xxxxx Xxxxxxx
Name: Xx. Xxxxx Klesing
Title: Managing Director
14
