EXHIBIT 1.1
[Draft--5/26/01]
152,032,238 Shares
Sprint Corporation
FON Common Stock, Series 1, $2.00 par value per share
UNDERWRITING AGREEMENT
May 30, 2001
1
New York, New York
May 30, 2001
Xxxxxxx, Xxxxx & Co.
00 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Xxxxxx Xxxxxxx & Co. Incorporated
0000 Xxxxxxxx
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:
France Telecom ("France Telecom") and NAB Nordamerika Beteiligungs
Holding GmbH ("DT Holdings" and, together with France Telecom, the "Selling
Stockholders") severally propose 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 152,032,238 shares (the "Firm
Shares") of the FON Common Stock, Series 1, $2.00 par value per share (the
"Series 1 FON Stock") of Sprint Corporation, a Kansas corporation (the
"Company") to be issued by the Company to the Selling Stockholders upon
conversion of shares of the FON Common Stock, Series 3, $2.00 par value per
share (the "Series 3 FON Shares") of the Company and with respect to shares of
Class A Common Stock, $2.50 par value per share, of the Company (the "Class A
Common Shares") held by the Selling Stockholders (such Series 3 FON Shares and
Class A Common Shares held by the Selling Stockholders being referred to herein
as the "Conversion Shares"), each Selling Stockholder selling the amount set
forth opposite such Selling Stockholder's name in Schedule I hereto.
The Selling Stockholders also propose to sell to the several
Underwriters not more than an additional 22,804,834 shares of Series 1 FON Stock
(the "Additional Shares") to be issued by the Company to the Selling
Stockholders upon conversion of additional Conversion Shares if and to the
extent that you, as Representatives, shall have determined to exercise, on
behalf of the Underwriters, the right to purchase such shares of Series 1 FON
Stock granted to the Underwriters in Section 3 hereof. The Firm Shares and the
Additional Shares are hereinafter collectively referred to as the "Shares". The
shares of Series 1 FON Stock of the Company, together with all other classes and
series of common stock of the Company, are hereinafter referred to as the
"Common Stock".
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration
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statement, including a prospectus, relating to the Shares (Commission file no.
333-55930). 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 in the form first
used to confirm sales of Shares is hereinafter referred to as the "Prospectus".
If the Company has filed an abbreviated registration statement to register
additional shares of Common Stock 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 each of the Underwriters and the
Selling Stockholders 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, complied or will comply in all material
respects with 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
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warranties set forth in this paragraph do not apply to 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 relating to any Selling Stockholder furnished
to the Company in writing by such Selling Stockholder expressly for use
therein.
(c) The Company 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 the Company and its subsidiaries,
taken as a whole.
(d) Each subsidiary of the Company that would be a "significant
subsidiary" of the Company within the meaning of Rule 1-02 under Regulation
S-X promulgated by the Commission, substituting five percent for 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 the Company and its subsidiaries, taken as a whole; all
of the outstanding shares of capital stock of each subsidiary of the
Company 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 the
Company, 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 the Company is as set
forth in the Prospectus under the caption "Capitalization", and the Series
1 FON Stock conforms in all material respects to the description thereof
contained in the Prospectus.
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(g) All outstanding shares of Common Stock, including the Conversion
Shares, have been duly authorized and are validly issued, fully paid and
non-assessable.
(h) The Shares to be sold by the Selling Stockholders have been duly
authorized and, when issued upon conversion of the Conversion Shares and
delivered in accordance with the terms of this Agreement, will be validly
issued, fully paid and non-assessable, and the issuance of such Shares will
not be subject to any preemptive or similar rights.
(i) The execution and delivery by the Company of, and the performance
by the Company of its obligations under, this Agreement (i) will not
violate any provision of the articles of incorporation or by-laws of the
Company and (ii) will not violate any provision of law applicable to the
Company or any of its subsidiaries, any agreement or other instrument
binding upon the Company or any of its subsidiaries or any judgment, order
or decree of any governmental body, agency or court having jurisdiction
over the Company 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 the Company 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 Shares.
(j) 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 the Company and its subsidiaries, taken as a whole, from that
set forth in the Prospectus.
(k) There are no legal or governmental proceedings pending or, to the
knowledge of the Company, threatened to which the Company or any of its
subsidiaries is a party or to which any of the properties of the Company 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.
(l) Any preliminary prospectus 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.
(m) The Company is not, and after giving effect to the offering and
sale of the Shares 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.
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(n) The Company 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 the Company and its subsidiaries, taken
as a whole, and neither the Company nor any such subsidiary has received
any notice of proceedings relating to the revocation or modification of any
such certificate, authorization or permit which, singly or in the
aggregate, could reasonably be expected to have a material adverse effect
on the Company and its subsidiaries, taken as a whole, whether or not
arising from transactions in the ordinary course of business.
(o) The Company 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 the Company and its subsidiaries, taken
as a whole.
(p) 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 the Company and its
subsidiaries, taken as a whole.
(q) 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) set forth or incorporated by
reference in the Prospectus and (ii) waived or satisfied.
(r) Ernst & Young LLP and Deloitte & Touche LLP, whose reports on the
consolidated financial statements of the Company and its subsidiaries are
filed with the Commission as part of the Registration Statement and
Prospectus, are each independent public accountants with respect to the
Company as required by the Securities Act.
(s) 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 the Company
and its subsidiaries as of the dates indicated and the consolidated results
of operations and cash flows of the Company and its subsidiaries for the
periods specified; such financial
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statements and schedules have been prepared in conformity with generally
accepted accounting principles applied on a consistent basis during the
periods involved.
(t) As of the date hereof, the Company does not believe that it is, or
has been, a "United States real property holding corporation" within the
meaning of Section 897(c)(2) of the Internal Revenue Code of 1986, as
amended (the "Code"), during the five-year period ending on the date
hereof, although it has not determined or established whether it will be a
United States real property holding corporation in the future.
2. Representations and Warranties of the Selling Stockholders.
Each of the Selling Stockholders severally represents and warrants to and
agrees with each of the Underwriters that:
(a) This Agreement has been duly authorized, executed and delivered
by or on behalf of such Selling Stockholder.
(b) The execution and delivery by such Selling Stockholder of, and
the performance by such Selling Stockholder of its obligations under, this
Agreement, the Letter to the Transfer Agent (as defined below) and the
power of attorney appointing certain individuals as such Selling
Stockholder's attorneys in fact to execute and deliver this Agreement and
the documents and certificates contemplated hereby (the "Power of
Attorney") will not violate (i) any provision of the certificate of
incorporation or by-laws (or equivalent constituent documents) of such
Selling Stockholder, or (ii) except in each case for violations that would
not materially and adversely affect the consummation by such Selling
Stockholder of the transactions contemplated by this Agreement, any
provision of law applicable to such Selling Stockholder, any agreement or
other instrument binding upon such Selling Stockholder or any property of
such Selling Stockholder or to which such Selling Stockholder is a party or
any judgment, order or decree of any governmental body, agency or court
having jurisdiction over such Selling Stockholder; 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, the Letter to the Transfer Agent and the
Power of Attorney by such Selling Stockholder, 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 Shares.
(c) Such Selling Stockholder has, and on the Closing Date will have,
the corporate power to enter into this Agreement, the Letter to the
Transfer Agent and the Power of Attorney, to sell, transfer and deliver the
Shares to be sold by such Selling Stockholder and perform its obligations
under this Agreement, the Letter to the Transfer Agent or the Power of
Attorney.
(d) Such Selling Stockholder has delivered a letter to UMB Bank, N.A.,
(the "Transfer Agent"), substantially in the form attached as Exhibit A
hereto ("Letter to the Transfer Agent"), and such Selling Stockholder has
received the transfer agent's signed acknowledgment of such letter and has
not received any notice that the transfer agent does not intend to comply
with the instructions therein.
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(e) Such Selling Stockholder is the record owner of the Shares to be
sold by such Selling Stockholder and is not aware of any "adverse claims"
(within the meaning of Section 8-105 of the Uniform Commercial Code as
adopted by the State of New York (the "UCC") that may be asserted against
such Selling Stockholder with respect to such Shares.
(f) The Registration Statement, when it became effective, did not
contain and, as amended or supplemented, if applicable, 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 and the Prospectus does not contain and, at the Closing
Date, the Prospectus as amended or supplemented, if applicable, 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 apply only to
statements or omissions in the Registration Statement or Prospectus based
upon information relating to such Selling Stockholder furnished to the
Company in writing by such Selling Stockholder expressly for use therein.
(g) The sale of such Selling Stockholder's Shares pursuant to this
Agreement is not prompted by any material, non-public information in such
Selling Stockholder's possession concerning the Company that would cause
such sale to constitute a violation by such Selling Stockholder of Rule
10b-5 promulgated under the Exchange Act.
(h) Such Selling Stockholder has not taken, and will not take,
directly or indirectly, any action designed to, or which might reasonably
be expected to, cause or result in any stabilization or manipulation of the
price of any security of the Company to facilitate the sale of the Shares
pursuant to the distribution contemplated by this Agreement and, other than
as permitted by the Securities Act, such Selling Stockholder has not
distributed and will not distribute any prospectus or other offering
material in connection with the offering and sale of the Shares.
3. Agreements to Sell and Purchase. Each Selling Stockholder,
severally and not jointly, hereby agrees to sell to the several Underwriters,
and each Underwriter, upon the basis of the representations and warranties
herein contained, but subject to the conditions hereinafter stated, agrees,
severally and not jointly, to purchase from such Selling Stockholder at $______
a share (the "Purchase Price") the number of Firm Shares (subject to such
adjustments to eliminate fractional shares as you may determine) that bears the
same proportion to the number of Firm Shares to be sold by such Selling
Stockholder as the number of Firm Shares set forth in Schedule II hereto
opposite the name of such Underwriter bears to the total number of Firm Shares.
On the basis of the representations and warranties contained in this
Agreement, and subject to its terms and conditions, each Selling Stockholder
agrees to sell to the Underwriters the Additional Shares, and the Underwriters
shall have a one-time right to purchase, severally and not jointly, the number
of Additional Shares set forth opposite such Selling
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Stockholder's name on Schedule I hereto at the Purchase Price. If you, on behalf
of the Underwriters, elect to exercise such option, you shall so notify each
Selling Stockholder 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
Shares to be purchased by the Underwriters and the date on which such shares 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 Shares may be purchased as provided in
Section 5 hereof solely for the purpose of covering over-allotments made in
connection with the offering of the Firm Shares. If any Additional Shares are to
be purchased, each Underwriter agrees, severally and not jointly, to purchase
from each Selling Stockholder, in the same proportion as the number of Firm
Shares purchased by that Underwriter from such Selling Stockholder bears to the
total number of Firm Shares purchased by that Underwriter, the number of
Additional Shares (subject to such adjustments to eliminate fractional shares as
you may determine) that bears the same proportion to the total number of
Additional Shares to be purchased as the number of Firm Shares set forth in
Schedule II hereto opposite the name of such Underwriter bears to the total
number of Firm Shares.
Each of the Company and France Telecom, severally and not jointly, and
Deutsche Telekom AG and DT Holdings, jointly with respect to each other and
severally with respect to the Company and France Telecom, hereby agrees that,
without the prior written consent of Xxxxxxx, Xxxxx & Co., Xxxxxx Xxxxxxx & Co.
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 FON Common Stock or any securities convertible into or
exercisable or exchangeable for shares of any series of FON 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 FON Common Stock,
whether any such transaction described in clause (i) or (ii) above is to be
settled by delivery of FON Common Stock or such other securities, in cash or
otherwise. The foregoing sentence shall not apply to (A) the Shares to be sold
hereunder, (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 FON Common Stock pursuant to any dividend
reinvestment plan in effect on the date of the Prospectus, (D) issuances of FON
Common Stock pursuant to the Company rights plan in effect on the date of the
Prospectus, (E) issuances of FON Common Stock or securities convertible into or
exchangeable for FON 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 FON Common Stock or
securities convertible into or exchangeable for FON Common Stock agrees to be
bound for any remaining portion of such 90 day period on the above terms (except
that recipients of FON Common Stock or securities convertible into or
exchangeable for FON Common Stock in connection with the acquisition by the
Company of a company whose shares are publicly traded need not so agree) or (F)
transfers by either Selling Stockholder of Common Stock to one or a limited
number of special purpose vehicles or other financial intermediaries or
financial institutions pursuant to Section 5(a)(ii)(B) of the Offering Process
Agreement among France
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Telecom, Deutsche Telekom AG, DT Holdings and the Company, dated as of February
20, 2001, provided any such entity agrees to be bound for any remaining portion
of such 90 day period on the above terms.
4. Terms of Public Offering. The Selling Stockholders are advised
by you that the Underwriters propose to make a public offering of their
respective portions of the Shares as soon after the Registration Statement and
this Agreement have become effective as in your judgment is advisable. The
Selling Stockholders are further advised by you that the Shares are to be
offered to the public initially at $_____________ a share (the "Public Offering
Price") and to certain dealers selected by you at a price that represents a
concession not in excess of $______ a share under the Public Offering Price, and
that any Underwriter may allow, and such dealers may reallow, a concession, not
in excess of $_____ a share, to any Underwriter or to certain other dealers.
5. Payment and Delivery. Payment for the Firm Shares to be sold by
each Selling Stockholder shall be made to such Selling Stockholder in Federal or
other funds immediately available in New York City against delivery of such Firm
Shares for the respective accounts of the several Underwriters at 10:00 a.m.,
New York City time, on ____________, 2001/1/, 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 Shares shall be made to each Selling
Stockholder in Federal or other funds immediately available in New York City
against delivery of such Additional Shares 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 3 or at such other time on the same or on such
other date, in any event not later than _______, 2001/2/, as shall be designated
in writing by you. The time and date of such payment are hereinafter referred
to as the "Option Closing Date".
Certificates for the Firm Shares and Additional Shares shall be as
contemplated in the Letter to the Transfer Agent. The certificates evidencing
the Firm Shares and Additional Shares 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 Shares to the Underwriters duly paid, against payment of the
Purchase Price therefor.
6. Conditions to the Obligations of the Underwriters and the Selling
Stockholders. The several obligations of the Selling Stockholders to sell the
Shares to the Underwriters and the several obligations of the Underwriters to
purchase and pay for the Shares 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 Selling Stockholders to sell the Shares to
the Underwriters shall also be 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
delivered to the Selling Stockholders pursuant to the provisions hereof and to
the conditions set forth in Sections 6(b), (c), (d), (h), (k),(l) and (m) below.
-------------------------
/1/Insert date 3 business days or, in the event the offering is priced after
4:30 p.m. Eastern Time (and T+4 settlement is deemed to apply to secondary
sales), 4 business days after the date of the Underwriting Agreement.
/2/Insert date 10 business days after the expiration of the green shoe option.
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The several obligations of the Underwriters to purchase and pay for
the Shares on the Closing Date are subject to the accuracy of the
representations and warranties on the part of the Company and the Selling
Stockholders contained herein as of the Closing Date, the accuracy of the
statements by the Company and the Selling Stockholders made in any certificates
pursuant to the provisions hereof, the performance by the Company and the
Selling Stockholders of their respective 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 the Company 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 Shares on the terms
and in the manner contemplated in the Prospectus.
(b) The Underwriters and the Selling Stockholders shall have received
on the Closing Date a certificate, dated the Closing Date and signed by an
executive officer of the Company 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 and the Selling Stockholders 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
"Description of Agreements with Selling Stockholders" and "Certain
Federal Income Tax Consequences" 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) the Company is not, and after giving effect to the offering
and sale of the Shares 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; and
(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 (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 we express
no opinion).
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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 and (ii) 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 and the Selling Stockholders shall have received
on the Closing Date an opinion of Xxxxxx X. Xxxxx, Vice President,
Corporate Secretary and Associate General Counsel of the Company, dated the
Closing Date, to the effect that:
(i) the Company 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 the Company and its subsidiaries, taken as a whole;
(ii) each Material Subsidiary of the Company 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
12
the failure to be so qualified or be in good standing would not
reasonably be expected to have a material adverse effect on the
Company and its subsidiaries, taken as a whole;
(iii) the authorized equity capitalization of the Company is as
set forth in the Prospectus under the caption "Capitalization", and
the Series 1 FON Stock conforms in all material respects to the
description thereof contained in the Prospectus;
(iv) all outstanding shares of Common Stock, including the
Conversion Shares, have been duly authorized and are validly issued,
fully paid and non-assessable;
(v) the Shares have been duly authorized, and when issued upon
conversion of the Conversion Shares in accordance with the terms of
the Conversion Shares, the Shares will be validly issued, fully paid
and non-assessable and will not have been issued in violation of any
statutory or contractual preemptive rights;
(vi) this Agreement has been duly authorized, executed and
delivered by the Company and the Company has the corporate power to
enter into this Agreement and perform its obligations hereunder;
(vii) the execution and delivery by the Company of, and the
performance by the Company of its obligations under, this Agreement
(i) will not violate any provision of the articles of incorporation or
by-laws of the Company and (ii) to such counsel's knowledge, will not
violate any provision of law applicable to the Company or any of its
subsidiaries, any agreement or other instrument binding upon the
Company or any of its subsidiaries, or any judgment, order or decree
of any governmental body, agency or court having jurisdiction over the
Company 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 the Company 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 Shares;
(viii) to such counsel's knowledge, (a) there are no legal or
governmental proceedings pending or threatened to which the Company or
any of its subsidiaries is a party or to which any of the properties
of the Company 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
13
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, 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, 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
opinions of Shearman & Sterling, counsel for France Telecom, and an opinion
of Xxxxxxxx Xxxxxxxxx, Directeur Juridique et Fiscal of France Telecom,
each dated the Closing Date, in the form attached hereto as Exhibits B, C
and D.
(f) The Underwriters shall have received on the Closing Date an
opinion of Cleary, Gottlieb, Xxxxx & Xxxxxxxx, special United States
counsel for Deutsche Telekom AG and DT Holdings, and an opinion of Xx.
Xxxxxxx Xxxx, L.L.M., General Counsel of Deutsche Telekom AG, both dated
the Closing Date, in the form attached hereto as Exhibits E and F.
14
(g) 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 6(d)(iii),
Section 6(c)(ii) (but only as to the statements in the Prospectus under the
caption "Underwriters") and in Section 6(c)(iv) above.
With respect to the last paragraph in Section 6(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. With respect to Section 6(e) above, Shearman & Sterling and
with respect to Section 6(f) above, Cleary, Gottlieb, Xxxxx & Xxxxxxxx may
rely, as to factual matters, to the extent such counsel deems appropriate,
upon the representations of each Selling Stockholder contained herein and
in other documents and instruments.
The opinions of King & Spalding described in Section 6(c), of Xxxxxx
X. Xxxxx described in Section 6(d), Shearman & Sterling described in
Section 6(e) and Cleary, Gottlieb, Xxxxx & Xxxxxxxx described in Section
6(f) shall be rendered to the Underwriters and, as applicable, the Selling
Stockholders, at the request of the Company or one or more of the Selling
Stockholders, as the case may be, and shall so state therein.
(h) The Underwriters and the Selling Stockholders 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 and the Selling
Stockholders, from Ernst & Young LLP, independent public accountants, with
respect to the Company and Deloitte & Touche LLP, independent public
accountants, with respect to certain subsidiaries of the Company,
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.
(i) [intentionally omitted]
(j) The Company and the Underwriters shall have received an officer's
certificate, substantially in the form of Exhibits G-1 and X-0,
xxxxxxxxxxxx xxxxxx xx Xxxxxx Telecom, NAB and Deutsche Telekom.
(k) The Underwriters and the Selling Stockholders shall have
received a certificate, substantially in the form attached as Exhibit H
hereto, of the Company relating to the ownership interests of the Selling
Stockholders in the Company under section 897(c)(2) of the Code, as of the
Closing Date.
15
(l) The Selling Stockholders and the Company shall have received a
certificate, substantially in the form attached as Exhibit I hereto, of the
Underwriters relating to certain selling procedures, provided that this
condition shall not be a condition to the several obligations of the
Underwriters.
(m) The Company shall have furnished to the Underwriters and the
Selling Stockholders such further information, certificates and documents
as the Underwriters and the Selling Stockholders may reasonably request.
The obligations of the Company to perform the actions required of the
Company under this Agreement on or before the Closing Date shall be subject
to (i) the receipt by the Company of the documents referred to in
paragraphs (j) and (l) of this Section 6 and (ii) the delivery by the
Selling Shareholders to the Transfer Agent of the stock certificates
representing the Shares together with completed stock powers substantially
in the form attached as exhibits to the Letter to the Transfer Agent.
The several obligations of the Underwriters to purchase Additional
Shares 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 Shares and other matters related to the issuance of the
Additional Shares.
7. Covenants of the Company. In further consideration of the
agreements of the Underwriters herein contained, the Company covenants with
each Underwriter and (with respect to Section 7(b) and Section 7(f) only)
each Selling Stockholder 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 and the Selling Stockholders 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 Shares 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
16
comply with applicable law, forthwith to prepare, file with the Commission
and furnish, at its own expense, to the Underwriters, the Selling
Stockholders and to the dealers (whose names and addresses you will furnish
to the Company) to which Shares 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 Shares 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 Shares 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 the Company's security holders
and to you as soon as practicable an earning statement covering the twelve-
month period ending ___________, 2002/3/ that satisfies the provisions of
Section 11(a) of the Securities Act and the rules and regulations of the
Commission thereunder.
(f) That upon each Selling Stockholder's and the Company's receipt of
the certificate of the Underwriters described in Section 6(l) of this
Agreement, such Selling Stockholder shall be deemed to be in compliance
with Section 2.4(a) of the Amended and Restated Stockholders' Agreement
among France Telecom, Deutsche Telekom AG and the Company, dated as of
November 23, 1998, as amended by the Master Transfer Agreement between and
among France Telecom, Deutsche Telekom AG, DT Holdings, Atlas
Telecommunications, S.A., the Company, Sprint Global Venture, Inc. and the
JV Entities set forth on Schedule II thereto, dated as of January 21, 2000,
with respect to the Shares offered and sold under the terms of this
Agreement.
8. 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 Shares
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 Shares under state securities laws and all
expenses in connection with the qualification of the Shares for offer and
sale under state securities laws as provided in Section 7(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 Shares by the National Association of
Securities Dealers, Inc., (iv) the cost of printing certificates
-------------------
/3/ Insert date one year after the end of the Company's fiscal quarter in
which the closing will occur.
17
representing the Shares, (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 Shares, 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. Notwithstanding the foregoing, it is
understood that the Selling Stockholders will pay or cause to be paid (in
the form of the difference between the Purchase Price and the Public
Offering Price) the underwriting discount with respect to the Shares, all
costs and expenses related to the transfer and delivery of the Shares to
the Underwriters, including any transfer or other taxes payable on the
transfer of the Shares to the Underwriters and all fees and disbursements
of their respective legal counsel in connection with the sale of the Shares
pursuant to this Agreement. It is understood, however, that except as
provided in this Section, Section 9 entitled "Indemnity and Contribution",
and the last paragraph of Section 11 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 Shares by
them and any advertising expenses connected with any offers they may make.
The provisions of this Section shall not supersede or otherwise affect
any agreement that the Company and the Selling Stockholders may otherwise
have for the allocation of such expenses among themselves.
9. 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 (i) any Underwriter furnished to the
Company in writing by or on behalf of any Underwriter through you expressly
for use therein or (ii) any Selling Stockholder furnished in writing by or
on behalf of such Selling Stockholder 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 Shares, 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 Shares 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 7(a) or Section 7(c).
(b) Each Selling Stockholder agrees, severally and not jointly,
18
to indemnify and hold harmless the Company and each Underwriter and each
person, if any, who controls the Company or 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, but only with reference to
information relating to such Selling Stockholder furnished in writing by or
on behalf of such Selling Stockholder expressly for use in the Registration
Statement, any preliminary prospectus, the Prospectus or any amendments or
supplements thereto and such indemnification being limited to the amount of
net proceeds received from the sale of such Selling Stockholder's Shares by
the Underwriters; 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 Shares, 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 Shares 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 7(a) or Section 7(c).
(c) Each Underwriter agrees, severally and not jointly, to indemnify
and hold harmless the Company, the Selling Stockholders, the directors of
the Company, the officers of the Company who sign the Registration
Statement and each person, if any, who controls the Company or any Selling
Stockholder 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.
19
(d) 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 9(a), 9(b) or 9(c), 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), (b) or (c) 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), (b) or (c) 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, (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 and (iii) the fees and expenses of more than one separate firm (in
addition to any local counsel) for all Selling Stockholders and all
persons, if any, who control any Selling Stockholder within the meaning of
either such Section, and that all such fees and expenses shall be
reimbursed as they are incurred. 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. In the case of any such separate firm for the Selling
Stockholders and such control persons of any Selling Stockholders, such
firm shall be designated in writing jointly by the Selling Stockholders.
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
20
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 indemnity could 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.
(e) To the extent the indemnification provided for in Section 9(a),
9(b) or 9(c) 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 Shares or (ii) if the allocation provided by clause 9(e)(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
9(e)(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
and/or the Selling Stockholders, on the one hand, and the Underwriters, on
the other hand, in connection with the offering of the Shares shall be
deemed to be in the same respective proportions as the net proceeds from
the offering of the Shares (before deducting expenses) received by the
Selling Stockholders 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
Shares. The relative fault of the Company, the Selling Stockholders 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, the Selling Stockholders 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 9 are several in proportion to the respective number of
Shares they have purchased hereunder, and not joint. The Selling
Stockholders respective obligations to contribute pursuant to this Section
9 are several in proportion to the respective number of
21
Shares each proposes to sell, and not joint.
(f) The Company, the Selling Stockholders and the Underwriters agree
that it would not be just or equitable if contribution pursuant to this
Section 9 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 9(e). 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 9, no Underwriter shall be required to
contribute any amount in excess of the amount by which the total price at
which the Shares 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 9 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.
(g) The indemnity and contribution provisions contained in this
Section 9 and the representations, warranties and other statements of the
Company and the Selling Stockholders 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, any Selling
Stockholder or any person controlling any Selling Stockholder, or the
Company, its officers or directors or any person controlling the Company
and (iii) acceptance of and payment for any of the Shares. Notwithstanding
the foregoing, the representations and warranties made by the Company to
the Selling Stockholders in Section 1 hereof shall terminate and be of no
further force or effect (i) upon the termination of this Agreement or (ii)
acceptance of any payment for any of the Shares.
(h) The indemnity and contribution provisions contained in this
Section 9 do not modify or supersede any agreement between the Company and
the Selling Stockholders.
10. Termination. This Agreement shall be subject to termination by
notice given by you to the Company and the Selling Stockholders, 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
22
calamity or crisis that, in your judgment, is material and adverse and (b)
in the case of any of the events specified in clauses 10(a)(i) through
10(a)(iv), such event, singly or together with any other such event, makes
it, in your judgment, impracticable to market the Shares on the terms and
in the manner contemplated in the Prospectus.
11. 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
Shares that it has or they have agreed to purchase hereunder on such date,
and the aggregate number of Shares 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 Shares to be purchased on such date,
the other Underwriters shall be obligated severally in the proportions that
the number of Firm Shares set forth opposite their respective names in
Schedule II bears to the aggregate number of Firm Shares set forth opposite
the names of all such non-defaulting Underwriters, or in such other
proportions as you may specify, to purchase the Shares 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 Shares
that any Underwriter has agreed to purchase pursuant to this Agreement be
increased pursuant to this Section 11 by an amount in excess of one-ninth
of such number of Shares without the written consent of such Underwriter.
If, on the Closing Date, any Underwriter or Underwriters shall fail or
refuse to purchase Firm Shares and the aggregate number of Firm Shares with
respect to which such default occurs is more than one-tenth of the
aggregate number of Firm Shares to be purchased, and arrangements
satisfactory to you, the Company and the Selling Stockholders for the
purchase of such Firm Shares are not made within 36 hours after such
default, this Agreement shall terminate without liability on the part of
any non-defaulting Underwriter, the Company or the Selling Stockholders.
In any such case either you, the Company or the Selling Stockholders 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
Shares and the aggregate number of Additional Shares with respect to which
such default occurs is more than one-tenth of the aggregate number of
Additional Shares to be purchased, the non-defaulting Underwriters shall
have the option to (i) terminate their obligation hereunder to purchase
Additional Shares or (ii) purchase not less than the number of Additional
Shares 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
(other than due to the failure by the Selling Shareholders or the
Underwriters to satisfy their respective conditions to the obligations of
the Company described in the second to last paragraph of Section 6), (ii)
pursuant to Section 10 or (iii) if for any reason the Company shall be
unable to perform its obligations under this
23
Agreement, the Company will reimburse the Selling Stockholders and 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.
If this Agreement shall be terminated by the Underwriters, or any of
them, or the Company, because of any failure or refusal on the part of
either Selling Stockholder to comply with the terms or to fulfill any of
the conditions of this Agreement, or if for any reason either Selling
Stockholder shall be unable to perform its obligations under this
Agreement, such Selling Stockholder will reimburse the Company, the other
Selling Stockholder and 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.
12. Guarantee of Deutsche Telekom AG. Deutsche Telekom AG agrees to
guarantee full payment and complete performance of any and all obligations
of its subsidiary, DT Holdings, under this Agreement.
13. 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.
14. 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 Xxxxxx Xxxxxxx & Co.
Incorporated, 0000 Xxxxxxxx, Xxx Xxxx, XX 00000 (fax no. (000) 000-0000),
attention General Counsel, Xxxxxxx Sachs & Co., 00 Xxxxx Xxxxxx, Xxx Xxxx,
XX 00000 (fax no. (000) 000-0000), attention General Counsel, and UBS
Warburg LLC, 000 Xxxx Xxxxxx, Xxx Xxxx, XX 00000 (fax no. (000) 000-0000),
attention General Counsel or if sent to the Company, will be mailed,
delivered or telefaxed to 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) or if sent to France
Telecom, will be mailed, delivered or telefaxed to 0 xxxxx x'Xxxxxxx, 00000
Xxxxx Xxxxx 00, Xxxxxx, attention General Counsel (fax no.(33-1) 44-44-02-
13) and with a copy to Shearman & Sterling, 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx,
XX 00000, U.S.A., attention Xxxxxx X. Xxxx, Xx., Esq. (fax no. (212) 848-
7179), or if sent to Deutsche Telekom AG or DT Holdings, will be mailed,
delivered or telefaxed to Xxxxxxxxx-Xxxxx-Xxxxx 000, X-00000 Xxxx, Xxxxxxx
attention Chief Executive Officer (fax. no. 00-000-000-0000) with a copy to
Cleary, Gottlieb, Xxxxx & Xxxxxxxx, Xxx Xxxxxxx Xxxxx, Xxx Xxxx, XX, 00000,
U.S.A., attention Xxxxxx X. Xxxxx, Esq. (fax no. (000) 000-0000).
15. 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).
24
(b) Each of the Company, France Telecom, Deutsche Telekom AG and DT
Holdings 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 each of the
Company, France Telecom, Deutsche Telekom and DT Holdings 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 impled), it being understood that this provision
inures to the benefit only of Specified Parties and no third parties. Each
of the Underwriters, the Company, France Telecom, Deutsche Telekom AG and
DT Holdings 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 France Telecom, Deutsche Telekom AG and DT Holdings hereby irrevocably
designates CT Corporation System (in such capacity, the "Process Agent"),
with an office at 000 Xxxxxx Xxxxxx, 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 France Telecom, Deutsche Telekom AG and DT
Holdings in the manner provided in Section 14. Each of France Telecom,
Deutsche Telekom AG and DT Holdings hereby confirm that they have paid in
full the fee charged by the Process Agent to act as such for the five year
period beginning on the date hereof and each 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 France Telecom, Deutsche Telekom AG and DT
Holdings will at all times during such period 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 Company, France Telecom, Deutsche
Telekom AG and DT Holdings 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 14, 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
25
permitted by applicable law. Each of the Company, France Telecom, Deutsche
Telekom AG, the Underwriters and DT Holdings expressly acknowledges 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.
16. Waiver of Immunity. (a) Each of France Telecom, Deutsche Telekom
AG and DT Holdings agrees that, to the extent that it or any of its
property is or becomes entitled at any time to any immunity on the grounds
of sovereignty or otherwise based upon its status as an agency or
instrumentality of government from any legal action, suit or proceeding or
from set off or counterclaim relating to this Agreement, from the
jurisdiction of any competent court described in Section 15(b), 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
France Telecom, Deutsche Telekom AG and DT Holdings 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 France Telecom, Deutsche Telekom AG, or DT Holdings with respect to
this Agreement.
17. 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.
26
Very truly yours,
Sprint Corporation
By:____________________________
Name:
Title:
France Telecom
By:____________________________
Name:
Title:
Deutsche Telekom AG
By:____________________________
Name:
Title:
NAB Nordamerika Beteiligungs Holding GmbH
By:____________________________
Name:
Title:
27
Accepted as of the date hereof
Xxxxxxx, Xxxxx & Co.
Xxxxxx Xxxxxxx & Co. Incorporated
UBS Warburg LLC
Acting severally on behalf
of themselves and the
several Underwriters named
in Schedule II hereto.
By: Xxxxxxx, Sachs & Co.
By:___________________________
Name:
Title:
By: Xxxxxx Xxxxxxx & Co. Incorporated
By:___________________________
Name:
Title:
By: UBS Warburg LLC
By:___________________________
Name:
Title:
28
SCHEDULE I
Number of Firm Number of
Selling Stockholder Shares To Be Sold Additional Shares
France Telecom 75,873,805 11,381,070
NAB Nordamerika Beteiligungs Holdings
GmbH 76,158,433 11,423,764
----------------- -----------------
Total................................. 152,032,238 22,804,834
================== ==================
SCHEDULE II
Number of
Firm Shares
Underwriter To Be Purchased
Xxxxxxx, Xxxxx & Co...................................................
Xxxxxx Xxxxxxx & Co. Incorporated.....................................
UBS Warburg LLC.......................................................
Deutsche Banc Alex. Xxxxx Inc.........................................
Xxxxxxx Xxxxx Barney Inc..............................................
Credit Suisse First Boston Corporation................................
X.X. Xxxxxx Securities Inc............................................
Xxxxxx Brothers Inc...................................................
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated..................................................
Total.........................................................
_______________
Total ........ 152,032,238
===============
EXHIBIT A
EXECUTION COPY
NAB Nordamerika Beteiligungs Holding GmbH
x/x Xxxxxxxx Xxxxxxx XX
Xxxxxxxxx-Xxxxx-Xxxxx 000
X-00000 Xxxx
Xxxxxxx
May 29, 2001
UMB Bank, n.a.
X.X. Xxx 000000
Xxxxxx Xxxx, XX 00000-0000
Attention: Xxxxx Xxxxxxx, Senior Vice President
Sprint Corporation
Public Offering of FON Common Stock, Series 1
---------------------------------------------
Dear Xx. Xxxxxxx:
Sprint Corporation ("Sprint"), France Telecom ("FT"), Deutsche Telekom AG
------ --
("DT"), NAB Nordamerika Beteiligungs Holding GmbH ("NAB") and the several
-- ---
underwriters named in Schedule II thereto (the "Underwriters") expect to enter
------------
into an Underwriting Agreement (the "Underwriting Agreement"), pursuant to which
----------------------
NAB would agree to sell to the Underwriters 76,158,433 shares (the "Firm
----
Shares") of Sprint FON Common Stock, Series 1, $2.00 par value per share
("Series 1 FON Stock") on the closing date under the Underwriting Agreement (the
--------------------
"Firm Shares Closing Date"). Pursuant to the Underwriting Agreement, NAB would
------------------------
also agree to sell up to 11,423,764 shares (the "Additional Shares") of Series 1
-----------------
FON Stock to the Underwriters, if and to the extent that the Underwriters elect
to exercise an option under the Underwriting Agreement to purchase such
Additional Shares by notice to NAB to be given at any time beginning on the date
that the Underwriting Agreement is signed and through the following 30 days.
The closing date for the purchase of Additional Shares is referred to herein as
the "Option Closing Date".
-------------------
On the date hereof, NAB holds certificates (the "FON Certificates")
----------------
representing 44,464,179 shares of Sprint FON Common Stock, Series 3, $2.00 par
value per share ("Series 3 FON Stock"). Pursuant to Article SIXTH, Section
------------------
8.3(a) of Sprint's Amended and Restated Articles of Incorporation, as amended
(the "Sprint Charter"), each share of Series 3 FON Stock may be converted into
--------------
one share of Series 1 FON Stock upon delivery by NAB of written notice to
Sprint. In the table immediately below we set forth, for all of the FON
Certificates, the certificate numbers, dates of issuance and number of shares
represented by each such certificate. NAB is delivering all of the FON
Certificates to you with this letter agreement and will provide you with
facsimile copies of the Firm Shares Stock Power (as defined below) and the
Overallotment Stock Power (as defined below) (with originals of such facsimile
copies to be sent by us via overnight courier to you), all such certificates and
powers to be held by you in
1
UMB Bank, n.a.
May 29, 2001
Page 2
accordance with the terms of this letter agreement. Your signature on this
letter agreement acknowledges, to Xxxxxxx Xxxxx & Co., Xxxxxx Xxxxxxx & Co.
Incorporated, UBS Warburg LLC, Sprint, FT, DT and NAB, your receipt of the FON
Certificates, and your agreement to abide by the terms of this letter agreement,
including its exhibits. Do not cancel, sell, transfer or use the FON
Certificates except in accordance with this letter agreement.
-----------------------------------------------------------------------------------------------------------------------
Certificate number Type of shares Date of Issuance Number of shares
-----------------------------------------------------------------------------------------------------------------------
F3-12 Series 3 FON Stock December 29, 1999 200,000
F3-13 Series 3 FON Stock December 29, 1999 43,118,018
F3-14 Series 3 FON Stock December 29, 1999 200,000
F3-15 Series 3 FON Stock December 29, 1999 325,000
F3-16 Series 3 FON Stock December 29, 1999 375,702
F3-17 Series 3 FON Stock December 29, 1999 245,459
-----------------------------------------------------------------------------------------------------------------------
On the date hereof, NAB holds Sprint stock certificate no. A0001, issued
December 29, 1999, representing 43,118,018 shares (each, a "Class A Share") of
-------------
Sprint Class A Common Stock - Series DT, which currently has a par value of
$2.50 per share ("Class A Common Stock"). Pursuant to Article SIXTH, Sections
--------------------
1.2(d) and 8.3(a) of the Sprint Charter, on the date hereof one share of Series
1 FON Stock may be issued to NAB in respect of each Class A Share. NAB may
exercise such right partially from time to time. The par value of the Class A
Shares are adjusted whenever NAB exercises such right in part, in accordance
with Article SIXTH, Section 1.2(e) of the Sprint Charter.
NAB will provide you and Sprint with written instructions on the Firm Shares
Closing Date (if such closing occurs) in the form attached hereto as Exhibit A
(the "First Notice"). The First Notice will also serve as the notice to Sprint
------------
contemplated by Article SIXTH, Section 8.3(a) of the Sprint Charter with respect
to the shares of Series 3 FON Stock and Class A Shares indicated therein. The
Firm Shares Closing Date is expected to be either three or four business days
after the date that the Underwriting Agreement is signed although it could occur
as late as eight or nine business days after that date. It is understood and
agreed that NAB is under no present obligation to sign the Underwriting
Agreement or to consummate the transactions contemplated thereby. NAB or its
counsel will telephone Xx. Xxxxxxx at 000-000-0000 or Xx. Xxxxxx at 000-000-0000
on the date that the Underwriting Agreement is signed and again at least one
business day prior to the Firm Shares Closing Date to confirm that the Firm
Shares Closing Date will take place as scheduled. Immediately upon receipt of
the First Notice you will follow the instructions set forth therein. To effect
the transactions contemplated by the First Notice, we will provide you with a
facsimile copy of a stock power executed in favor of the Underwriters (the "Firm
----
Shares Stock Power") on the date that we sign the Underwriting Agreement, with
------------------
the original of such stock power to be sent to you via overnight courier on the
date that we sign the Underwriting Agreement. The certificate number for the
Series 1 FON Stock Certificate (as defined in the First Notice) and the date of
the Firm Shares Stock Power will be left blank in the Firm Shares Stock Power
and shall be completed by you in accordance
2
UMB Bank, n.a.
May 29, 2001
Page 3
with the First Notice. The Firm Shares Stock Power will be executed by an
authorized officer of NAB and will include a medallion guarantee. At your
request, we will include with the First Notice an executed Officer's Certificate
of NAB (the "Officer's Certificate") in the form previously approved by you.
---------------------
Promptly after the Firm Shares Closing Date we will send to you the originals of
the First Notice and the Officer's Certificate.
NAB will provide you and Sprint with written instructions on the Option
Closing Date (if such closing occurs) in the form attached hereto as Exhibit B
(the "Second Notice"). The Second Notice will also serve as the notice to
-------------
Sprint contemplated by Article SIXTH, Section 8.3(a) of the Sprint Charter with
respect to the shares indicated therein. The Option Closing Date is expected to
be within 30 days from the date that the Underwriting Agreement is signed. The
Underwriters will establish the Option Closing Date and provide NAB with one
day's prior notice, and NAB or its counsel will telephone Xx. Xxxxxxx at 816-
860-7761 or Xx. Xxxxxx at 000-000-0000 on the date it receives such oral notice
of the Option Closing Date from the Underwriters. Immediately upon receipt of
the Second Notice you will follow the instructions set forth therein. To effect
the transactions contemplated by the Second Notice, we will provide you with a
facsimile copy of a stock power executed in favor of the Underwriters (the
"Overallotment Stock Power") with the original of such stock power to be sent to
--------------------------
you via overnight courier on the date that we sign the Underwriting Agreement.
The number of shares to be conveyed under the Overallotment Stock Power, the
date and the certificate number for the Overallotment Series 1 FON Stock
Certificate (as defined in the Second Notice) have been left blank in the
Overallotment Stock Power and shall be completed by you in accordance with the
Second Notice. The Overallotment Stock Power will be executed by an authorized
officer of NAB and will include a medallion guarantee.
Upon NAB's written notice to you that the transactions contemplated by this
letter agreement are being terminated, or that the Underwriting Agreement has
not been signed or that the closing for the Firm Shares has not occurred within
twenty business days from the date hereof, you shall promptly return the FON
Certificates, the Firm Shares Stock Power and the Overallotment Stock Power to
NAB in accordance with instructions that NAB will then provide to you.
This letter agreement shall be governed by the internal laws of the State of
New York.
Very truly yours,
NAB Nordamerika
Beteiligungs Holding
GmbH
By:____________________________
Name:
Title:
3
UMB Bank, n.a.
May 29, 2001
Page 4
Acknowledged and agreed:
UMB BANK, N.A.
By:_________________________
Name: Xxxxx Xxxxxxx
Title: Senior Vice President
SPRINT CORPORATION
By:_________________________
Name:
Title:
XXXXXXX, XXXXX & CO.
XXXXXX XXXXXXX & CO. INCORPORATED
UBS WARBURG LLC
DEUTSCHE BANK XXXX XXXXX INC.
XXXXXXX XXXXX XXXXXX INC.
CREDIT SUISSE FIRST BOSTON CORPORATION
X.X. XXXXXX SECURITIES INC.
XXXXXX BROTHERS INC.
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX INCORPORATED
By:
XXXXXXX, SACHS & CO.
By:_________________________
Name:
Title:
XXXXXX XXXXXXX & CO. INCORPORATED
By:_________________________
Name:
Title:
4
UMB Bank, n.a.
May 29, 2001
Page 5
UBS WARBURG LLC
By:_________________________
Name:
Title:
5
EXHIBIT A
Form of Notice on Firm Shares Closing Date
[Firm Shares Closing Date], 2001
Sprint Corporation
0000 Xxxxxxx Xxxxxxx Xxxxxxx
Xxxxxxxx, XX 00000
Attention: Xxxx Xxxx, Esq.
UMB Bank, n.a.
X.X. Xxx 000000
Xxxxxx Xxxx, XX 00000-0000
Attention: Xxxxx Xxxxxxx, Senior Vice President
By Facsimile (to Sprint at 000-000-0000 and to UMB Bank, n.a. at 816-860-
3963)
Dear Xx. Xxxxxxx:
We refer to our letter to UMB Bank, n.a. dated May 29, 2001 (the "Instruction
-----------
Letter"). Capitalized terms that are not defined herein have the meanings
------
set forth in the Instruction Letter. We attach a facsimile copy of the
Officer's Certificate and we will send you an original of the same by
overnight courier. We hereby instruct you as follows:
1. Immediately convert all [44,464,179]* shares of Series 3 FON Stock held by
NAB represented by the FON Certificates into [44,464,179]* shares of Series
1 FON Stock, to be issued in the name of NAB on the stock transfer books of
Sprint.
2. Immediately issue [31,694,254]* shares of Series 1 FON Stock in the name of
NAB on the stock transfer books of Sprint, to be issued in respect of the
Class A Shares held by NAB.
3. Immediately issue in the name of NAB one stock certificate representing in
the aggregate the number of shares of Series 1 FON Stock set forth in
Paragraphs one and two above, equal to [76,158,433]* shares of Series 1 FON
Stock (the "Series 1 FON Stock Certificate"). You are authorized to insert
the certificate number for the Series 1 FON Stock Certificate in the Firm
Shares Stock Power, date that document with the date that appears above, and
attach the Firm Shares Stock Power, as so completed, to the Series 1 FON
Stock Certificate.
------------------------
* Exact number to be determined at time Underwriting Agreement is signed.
A-1
1
4. Immediately after the issuance of the Series 1 FON Stock Certificate,
transfer all such [76,158,433]* shares of Series 1 FON Stock so issued in
the name of NAB to the following book entry account at The Depository Trust
Company:
[book entry account of underwriters]
[financial institution]
[account number]
and then supply us by facsimile with a copy of each of the Series 1 FON
Stock Certificate and the Firm Shares Stock Power, c/o Xxxxxxx Xxxxxxxxxxx,
Cleary, Gottlieb, Xxxxx & Xxxxxxxx (fax no. 000-000-0000), with copies by
fax to the Underwriters, c/o Xxxxx Xxxxxx and Xxxxx Xxxxx, Cravath, Swaine
& Xxxxx (fax no. 000-000-0000). You will then cancel the Series 1 FON Stock
Certificate.
5. Following the transfers set forth above, NAB will continue to hold Sprint
stock certificate no. A0001, issued December 29, 1999, representing
43,118,018 Class A Shares; provided, however, that such Class A Shares
-------- -------
shall thereafter represent the right to receive [11,423,764]* shares of
Series 3 (or Series 1, at NAB's election) FON Stock AND 21,559,009 shares
of Sprint PCS Stock, $1.00 par value per share, Series 3 (or Series 1, at
NAB's election). Moreover, the par value for each of such 43,118,018 Class
A Shares shall thereafter be reduced from $2.50 per share to [$1.029884]
per share on the stock transfer books of Sprint.
Very truly yours,
NAB Nordamerika
Beteiligungs Holding
GmbH
By:____________________________
Name:
Title:
Acknowledged and agreed:
SPRINT CORPORATION
By: ______________________
Name:
Title:
X-0
0
XXXXXXX X
Form of Notice on Option Closing Date
[Option Closing Date], 2001
Sprint Corporation
0000 Xxxxxxx Xxxxxxx Xxxxxxx
Xxxxxxxx, XX 00000
Attention: Xxxx Xxxx, Esq.
UMB Bank, n.a.
X.X. Xxx 000000
Xxxxxx Xxxx, XX 00000-0000
Attention: Xxxxx Xxxxxxx, Senior Vice President
By Facsimile (to Sprint at 000-000-0000 and to UMB Bank, n.a. at 816-860-
3963)
Dear Xx. Xxxxxxx:
We refer to our letter to UMB Bank, n.a. dated May 29, 2001 (the "Instruction
-----------
Letter"). Capitalized terms that are not defined herein have the meanings
------
set forth in the Instruction Letter. We hereby instruct you as follows:
1. Immediately issue [11,423,764 - or some lesser amount - per notice by the
Underwriters] shares of Series 1 FON Stock in the name of NAB on the stock
transfer books of Sprint, to be issued in respect of the Class A Shares
held by NAB.
2. Immediately issue in the name of NAB one stock certificate representing in
the aggregate the number of shares of Series 1 FON Stock set forth in
paragraph one above (the "Overallotment Series 1 FON Stock Certificate").
--------------------------------------------
You are authorized to insert "[11,423,764]" in the first blank space in the
Overallotment Stock Power, date that document with the date that appears
above, insert the certificate number for the Overallotment Series 1 FON
Stock Certificate, and attach the Overallotment Stock Power, as so
completed, to the Overallotment Series 1 FON Stock Certificate.
3. Immediately after the issuance of the Overallotment Series 1 FON Stock
Certificate, transfer all such [11,423,764 - or some lesser amount - per
notice by the Underwriters] shares of Series 1 FON Stock so issued in the
name of NAB to the following book entry account at The Depository Trust
Company:
[book entry account of underwriters]
[financial institution]
[account number]
B-1
1
and then supply us by facsimile with a copy of each of the Overallotment
Series 1 FON Stock Certificate and the Overallotment Stock Power, c/o
Xxxxxxx Xxxxxxxxxxx, Cleary, Gottlieb, Xxxxx & Xxxxxxxx (fax no. 212-225-
3999), with copies by fax to the Underwriters, c/o Xxxxx Xxxxxx and Xxxxx
Xxxxx, Cravath, Swaine & Xxxxx (fax no. 000-000-0000). You will then
cancel the Overallotment Series 1 FON Stock Certificate.
4. Following the transfers set forth above, NAB will continue to hold Sprint
stock certificate no. A0001, issued December 29, 1999, representing
43,118,018 Class A Shares; provided, however, that such Class A Shares
-------- -------
shall thereafter represent the right to receive zero shares [assuming
transfer of 11,423,764 shares of Series 1 FON] of Series 3 (or Series 1)
FON Stock AND 21,559,009 shares of Sprint PCS Stock, $1.00 par value per
share, Series 3 (or Series 1, at NAB's election). Moreover, the par value
for each of such 43,118,018 Class A Shares shall thereafter be reduced from
$1.029884 per share to $0.50 [assuming transfer of 11,423,764 shares of
Series 1 FON] per share on the stock transfer books of Sprint.
Very truly yours,
NAB Nordamerika
Beteiligungs Holding
GmbH
By:____________________________
Name:
Title:
Acknowledged and agreed:
SPRINT CORPORATION
By: ______________________
Name:
Title:
X-0
0
XXXXXXXXX XXXX
XXXXXX TELECOM
0, xxxxx x'Xxxxxxx
00000 Xxxxx Cedex 15
France
May 29, 2001
UMB Bank, n.a.
X.X. Xxx 000000
Xxxxxx Xxxx, XX 00000-0000
Attention: Xxxxx Xxxxxxx, Senior Vice President
Sprint Corporation
Public Offering of FON Common Stock, Series 1
---------------------------------------------
Dear Xx. Xxxxxxx:
Sprint Corporation ("Sprint"), France Telecom ("FT"), Deutsche Telekom AG
------ --
("DT"), NAB Nordamerika Beteiligungs Holding GmbH ("NAB") and the several
-- ---
underwriters named in Schedule II thereto (the "Underwriters") expect to enter
------------
into an Underwriting Agreement (the "Underwriting Agreement"), pursuant to which
----------------------
FT would agree to sell to the Underwriters 75,873,805 shares (the "Firm Shares")
-----------
of Sprint FON Common Stock, Series 1, $2.00 par value per share ("Series 1 FON
------------
Stock") on the closing date under the Underwriting Agreement (the "Firm Shares
----- -----------
Closing Date"). Pursuant to the Underwriting Agreement, FT would also agree to
------------
sell up to 11,381,070 shares (the "Additional Shares") of Series 1 FON Stock to
-----------------
the Underwriters, if and to the extent that the Underwriters elect to exercise
an option under the Underwriting Agreement to purchase such Additional Shares by
notice to FT to be given at any time beginning on the date that the Underwriting
Agreement is signed and through the following 30 days. The closing date for the
purchase of Additional Shares is referred to herein as the "Option Closing
--------------
Date".
On the date hereof, FT holds certificates (the "FON Certificates")
----------------
representing 44,136,857 shares of Sprint FON Common Stock, Series 3, $2.00 par
value per share ("Series 3 FON Stock"). Pursuant to Article SIXTH, Section
------------------
8.3(a) of Sprint's Amended and Restated Articles of Incorporation, as amended
(the "Sprint Charter"), each share of Series 3 FON Stock may be converted into
--------------
one share of Series 1 FON Stock upon delivery by FT of written notice to Sprint.
In the table immediately below we set forth, for all of the FON Certificates,
the certificate numbers, dates of issuance and number of shares represented by
each such certificate. FT is delivering all of the FON Certificates to you with
this letter agreement and will provide you with facsimile copies of the Firm
Shares Stock Power (as defined below) and the Overallotment Stock Power (as
defined below) (with originals of such facsimile copies to be sent
UMB Bank, n.a.
May 29, 2001
Page 2
by us via overnight courier to you), all such certificates and powers to be held
by you in accordance with the terms of this letter agreement. Your signature on
this letter agreement acknowledges, to Xxxxxxx Xxxxx & Co., Xxxxxx Xxxxxxx & Co.
Incorporated, UBS Warburg LLC, Sprint, FT, DT and NAB, your receipt of the FON
Certificates and your agreement to abide by the terms of this letter agreement,
including its exhibits. Do not cancel, sell, transfer or use the FON
Certificates except in accordance with this letter agreement.
------------------------------------------------------------------------------------------------------------------------
Certificate number Type of shares Date of Issuance Number of shares
------------------------------------------------------------------------------------------------------------------------
F3-1 Series 3 FON Stock 4/20/1999 200,000
X0-0 Xxxxxx 0 XXX Xxxxx 6/04/1999 43,118,018
X0-0 Xxxxxx 0 XXX Xxxxx 6/04/1999 200,000
X0-0 Xxxxxx 0 XXX Xxxxx 9/30/1999 374,298
F3-10 Series 3 FON Stock 12/28/1999 244,541
------------------------------------------------------------------------------------------------------------------------
On the date hereof, FT holds Sprint stock certificate no. A0001, issued
April 26, 1996, representing 43,118,018 shares (each, a "Class A Share") of
-------------
Sprint Old Class A Common Stock, which currently has a par value of $2.50 per
share ("Class A Common Stock"). Pursuant to Article SIXTH, Sections 1.2(c) and
--------------------
8.3(a) of the Sprint Charter, on the date hereof one share of Series 1 FON Stock
may be issued to FT in respect of each Class A Share. FT may exercise such
right partially from time to time. The par value of the Class A Shares are
adjusted whenever FT exercises such right in part, in accordance with Article
SIXTH, Section 1.2(e) of the Sprint Charter.
FT will provide you and Sprint with written instructions on the Firm Shares
Closing Date (if such closing occurs) in the form attached hereto as Exhibit A
(the "First Notice"). The First Notice will also serve as the notice to Sprint
------------
contemplated by Article SIXTH, Section 8.3(a) of the Sprint Charter with respect
to the shares of Series 3 FON stock and Class A Shares indicated therein. The
Firm Shares Closing Date is expected to be either three or four business days
after the date that the Underwriting Agreement is signed although it could occur
as late as eight to nine business days after that date. It is understood and
agreed that FT is under no present obligation to sign the Underwriting Agreement
or to consummate the transactions contemplated thereby. FT or its counsel will
telephone Xx. Xxxxxxx at 000-000-0000 or Xx. Xxxxxx at 000-000-0000 on the date
that the Underwriting Agreement is signed and again at least one business day
prior to the Firm Shares Closing Date to confirm that the Firm Shares Closing
Date will take place as scheduled. Immediately upon receipt of the First Notice
you will follow the instructions set forth therein. To effect the transactions
contemplated by the First Notice, we will provide you with a facsimile copy of a
stock power executed in favor of the Underwriters in the form of Exhibit C
hereto (the "Firm Shares Stock Power") on the date that we sign the Underwriting
-----------------------
Agreement, with the original of such stock power to be sent to you via overnight
courier on the date that we sign the Underwriting Agreement. The certificate
number for the Series 1 FON Stock Certificate (as defined in the First Notice)
and the date of the Firm Shares Stock Power will be left blank in the Firm
Shares Stock Power and shall be completed by you in accordance with the First
Notice. The Firm Shares Stock Power will be executed by an authorized officer
of FT and will include a medallion guarantee. At your request, we will
UMB Bank, n.a.
May 29, 2001
Page 3
include with the First Notice an executed Officer's Certificate of FT (the
"Officer's Certificate") in the form previously approved by you. Promptly
---------------------
after the Firm Shares Closing Date we will send to you the originals of the
First Notice and the Officer's Certificate.
FT will provide you and Sprint with written instructions on the Option
Closing Date in the form attached hereto as Exhibit B (the "Second Notice").
-------------
The Second Notice will also serve as the notice to Sprint contemplated by
Article SIXTH, Section 8.3(a) of the Sprint Charter with respect to the shares
of Series 3 FON Stock and Class A Shares indicated therein. The Option Closing
Date is expected to be within 30 days from the date that the Underwriting
Agreement is signed. The Underwriters will establish the Option Closing Date
and provide FT with one day's prior notice, and FT or its counsel will telephone
Xx. Xxxxxxx at 000-000-0000 or Xx. Xxxxxx at 000-000-0000 on the date it
receives such oral notice of the Option Closing Date from the Underwriters.
Immediately upon receipt of the Second Notice you will follow the instructions
set forth therein. To effect the transactions contemplated by the Second
Notice, we will provide you with a facsimile copy of a stock power executed in
favor of the Underwriters in the form of Exhibit C hereto (the "Overallotment
-------------
Stock Power"), with the original of such stock power to be sent to you via
-----------
overnight courier on the date that we sign the Underwriting Agreement. The
number of shares to be conveyed under the Overallotment Stock Power, the date
and the certificate number for the Overallotment Series 1 FON Stock Certificate
(as defined in the Second Notice) will be left blank in the Overallotment Stock
Power and shall be completed by you in accordance with the Second Notice. The
Overallotment Stock Power will be executed by an authorized officer of FT and
will include a medallion guarantee.
Upon written notice by FT to you that the transactions contemplated by this
letter agreement are being terminated, or that the Underwriting Agreement has
not been signed or that the closing for the Firm Shares has not occurred within
twenty business days from the date hereof, you shall promptly return the FON
Certificates, the Firm Shares Stock Power and the Overallotment Stock Power to
FT in accordance with instructions that we then provide to you.
This letter agreement shall be governed by the internal laws of the State
of New York.
Very truly yours,
FRANCE TELECOM
By:____________________________
Name:
Title:
UMB Bank, n.a.
May 29, 2001
Page 4
Acknowledged and agreed:
UMB BANK, N.A.
By:_________________________
Name: Xxxxx Xxxxxxx
Title: Senior Vice President
SPRINT CORPORATION
By:_________________________
Name:
Title:
XXXXXXX, SACHS & CO.
XXXXXX XXXXXXX & CO. INCORPORATED
UBS WARBURG LLC
DEUTSCHE BANK XXXX XXXXX INC.
XXXXXXX XXXXX XXXXXX INC.
CREDIT SUISSE FIRST BOSTON CORPORATION
X.X. XXXXXX SECURITIES INC.
XXXXXX BROTHERS INC.
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX INCORPORATED
By:
XXXXXXX, SACHS & CO.
By:_________________________
Name:
Title:
XXXXXX XXXXXXX & CO. INCORPORATED
By:_________________________
Name:
Title:
UMB Bank, n.a.
May 29, 2001
Page 5
UBS WARBURG LLC
By:_________________________
Name:
Title:
EXHIBIT A
Form of Notice on Firm Shares Closing Date
[Firm Shares Closing Date], 2001
Sprint Corporation
0000 Xxxxxxx Xxxxxxx Xxxxxxx
Xxxxxxxx, XX 00000
Attention: Xxxx Xxxx, Esq.
UMB Bank, n.a.
X.X. Xxx 000000
Xxxxxx Xxxx, XX 00000-0000
Attention: Xxxxx Xxxxxxx, Senior Vice President
By Facsimile (to Sprint at 000-000-0000 and to UMB Bank, n.a. at 816-860-3963)
Dear Xx. Xxxxxxx:
We refer to our letter to UMB Bank, n.a. dated May 29, 2001 (the "Instruction
-----------
Letter"). Capitalized terms that are not defined herein have the meanings set
------
forth in the Instruction Letter. We attach a facsimile copy of the Officer's
Certificate. We hereby instruct you as follows:
1. Immediately convert [all 44,136,857]* shares of Series 3 FON Stock
represented by the FON Certificates held by FT into [44,136,857]* shares of
Series 1 FON Stock, to be issued in the name of FT on the stock transfer
books of Sprint.
2. Immediately issue [31,736,948]* shares of Series 1 FON Stock in the name of
FT on the stock transfer books of Sprint, to be issued in respect of the
Class A Shares held by FT.
3. Immediately issue in the name of FT one stock certificate representing in
the aggregate the number of shares of Series 1 FON Stock set forth in
Paragraphs one and two above, equal to [75,873,805]* shares of Series 1 FON
Stock (the "Series 1 FON Stock Certificate"). You are authorized to insert
------------------------------
in the Firm Shares Stock Power the certificate number for the Series 1 FON
Stock Certificate, date that document with the date that appears above, and
attach the Firm Shares Stock Power, as so completed, to the Series 1 FON
Stock Certificate.
4. Immediately after the issuance of the Series 1 FON Stock Certificate,
transfer all [75,873,805]* shares of Series 1 FON Stock so issued in the
name of FT to the following book entry account:
----------
* Exact number to be determined at time Underwriting Agreement is signed.
A-1
[book entry account of underwriters]
[financial institution]
[account number]
and then supply us by facsimile with a copy of each of the Series 1 FON
Stock Certificate and the Firm Shares Stock Power, c/o Xxxxxxxxxxx Xxxxxxx,
Xxxxxxxx & Sterling (fax no. 000-000-0000), with copies by fax to the
Underwriters, c/o Xxxxx Xxxxxx and Xxxxx Xxxxx, Cravath, Swaine & Xxxxx
(fax no. 000-000-0000). You will then cancel the Series 1 FON Stock
Certificate.
5. Following the transfers set forth above, FT will continue to hold Sprint
stock certificate no. A0001, issued April 26, 1996, representing 43,118,018
Class A Shares; provided, however, that such Class A Shares shall
-------- -------
thereafter represent the right to receive [11,381,070]* shares of Series 3
(or Series 1, at FT's election) FON Stock AND 21,559,009 shares of Sprint
PCS Stock, $1.00 par value per share, Series 3 (or Series 1, at FT's
election). Moreover, the par value for each of such 43,118,018 Class A
Shares shall thereafter be reduced from $2.50 per share to [$1.027903] per
share on the stock transfer books of Sprint.
Very truly yours,
FRANCE TELECOM
By:____________________________
Name:
Title:
Acknowledged and agreed:
SPRINT CORPORATION
By: ______________________
Name:
Title:
A-2
EXHIBIT B
Form of Notice on Option Closing Date
[Option Closing Date], 2001
Sprint Corporation
0000 Xxxxxxx Xxxxxxx Xxxxxxx
Xxxxxxxx, XX 00000
Attention: Xxxx Xxxx, Esq.
UMB Bank, n.a.
X.X. Xxx 000000
Xxxxxx Xxxx, XX 00000-0000
Attention: Xxxxx Xxxxxxx, Senior Vice President
By Facsimile (to Sprint at 000-000-0000 and to UMB Bank, n.a. at 816-860-3963)
Dear Xx. Xxxxxxx:
We refer to our letter to UMB Bank, n.a. dated May 29, 2001 (the "Instruction
-----------
Letter"). Capitalized terms that are not defined herein have the meanings set
------
forth in the Instruction Letter. We hereby instruct you as follows:
1. Immediately issue [11,381,070 - or some lesser amount - per notice by the
Underwriters] shares of Series 1 FON Stock in the name of FT on the stock
transfer books of Sprint, to be issued in respect of the Class A Shares
held by FT.
2. Immediately issue in the name of FT one stock certificate representing in
the aggregate the number of shares of Series 1 FON Stock set forth in
Paragraph one above (the "Overallotment Series 1 FON Stock Certificate").
--------------------------------------------
You are authorized to insert "[11,381,070]" in the first blank space in the
Overallotment Stock Power, date that document with the date that appears
above, insert the certificate number for the Overallotment Series 1 FON
Stock Certificate, and attach the Overallotment Stock Power, as so
completed, to the Series 1 FON Stock Certificate.
3. Immediately after the issuance of the Overallotment Series 1 FON Stock
Certificate, transfer all such [11,381,070 - or some lesser amount - per
notice by the Underwriters] shares of Series 1 FON Stock issued in the name
of FT to the following book entry account at the Depository Trust Company:
[book entry account of underwriters]
[financial institution]
[account number]
B-1
and then supply us by facsimile with a copy of each of the Overallotment
Series 1 FON Stock Certificate and the Overallotment Stock Power, c/o
Xxxxxxxxxxx Xxxxxxx, Xxxxxxxx & Sterling (fax no. 000-000-0000), with
copies by fax to the Underwriters, c/o Xxxxx Xxxxxx and Xxxxx Xxxxx,
Cravath, Swaine & Xxxxx (fax no. 000-000-0000). You will then cancel the
Overallotment Series 1 FON Stock Certificate.
4. Following the transfers set forth above, FT will continue to hold Sprint
stock certificate no. A0001, issued April 26, 1996, representing 43,118,018
Class A Shares; provided, however, that such Class A Shares shall
-------- -------
thereafter represent the right to receive zero shares [assuming transfer of
11,381,070 shares of Series 1 FON] of Series 3 (or Series 1) FON Stock AND
21,559,009 shares of Sprint PCS Stock, $1.00 par value per share Series 3
(or Series 1, at FT's election). Moreover, the par value for each of such
43,118,018 Class A Shares shall thereafter be reduced from $1.027903 per
share to $0.50 [assuming transfer of 11,381,070 shares of Series 1 FON] per
share on the stock transfer books of Sprint.
Very truly yours,
FRANCE TELECOM
By:____________________________
Name:
Title:
Acknowledged and agreed:
SPRINT CORPORATION
By: ______________________
Name:
Title:
B-2
EXHIBIT C
Form of Stock Power
STOCK POWER
FOR VALUE RECEIVED, France Telecom S.A., a societe anonyme
incorporated under the laws of France, hereby sells, assigns and transfers unto
Cede & Co. on behalf of Xxxxxxx Sachs & Co., Xxxxxx Xxxxxxx & Co. Incorporated
and UBS Warburg LLC, which are acting on behalf of the several underwriters (the
"Underwriters") named in Schedule II of the Underwriting Agreement among Sprint
------------
Corporation, France Telecom, Deutsche Telekom AG, NAB Nordamerika Beteiligungs
Holding GmbH and the Underwriters, _________________ shares of FON common stock,
Series 1, of Sprint Corporation on the books of Sprint Corporation represented
by Certificate No. _______, and does hereby irrevocably constitute and appoint
UMB Bank, n.a. attorney to transfer the said stock on the books of Sprint
Corporation with full power of substitution in the premises.
This Stock Power shall be governed by the internal laws of the State
of New York.
Dated: __________, 0000
XXXXXX TELECOM S.A.
By:______________________
Name:
Title:
3
EXHIBIT B
[FORM OF SHEARMAN & STERLING U.S. LAW OPINION]
[S&S Letterhead]
[_], 2001
Xxxxxxx, Xxxxx & Co.
Xxxxxx Xxxxxxx & Co. Incorporated
UBS Warburg LLC
Deutsche Banc Alex. Xxxxx Inc.
Xxxxxxx Xxxxx Xxxxxx Inc.
Credit Suisse First Boston Corporation
X.X. Xxxxxx Securities Inc.
Xxxxxx Brothers Inc.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
c/o Goldman, Sachs & Co. and Xxxxxx Xxxxxxx & Co. Incorporated and UBS Warburg
LLC
As representatives of the several Underwriters
00 Xxxxx Xxxxxx 0000 Xxxxxxxx 000 Xxxx Xxxxxx
Xxx Xxxx, XX 000000 Xxx Xxxx, XX 00000 Xxx Xxxx, XX 00000
Ladies and Gentlemen:
We are acting as special New York counsel to France Telecom, a company
organized under the laws of the Republic of France, in connection with the
proposed sale, by France Telecom, of shares of FON Common Stock, Series 1, $2.00
par value per share (the "Shares") issued by Sprint Corporation, a Kansas
------
corporation (the "Issuer"), pursuant to the underwriting agreement dated May [],
------
2001 (the "Underwriting Agreement") among the Issuer, France Telecom, Deutsche
----------------------
Telekom AG, NAB Nordamerika Beteiligungs Holding GmbH and the several
underwriters named in Schedule II thereto (the "Underwriters"). This opinion is
------------
being delivered to you at the request of France Telecom pursuant to Section 6(e)
of the Underwriting Agreement.
Capitalized terms used herein and not otherwise defined have the
meanings ascribed to them in the Underwriting Agreement.
In this capacity, we have examined:
(a) a copy of the Underwriting Agreement;
(b) the registration statement on Form S-3 (No. 333-55930) relating to the
Shares, as amended when it became effective, including the information
deemed to be a part thereof as of such time pursuant to Rule 430A under the
Securities Act of 1933, as
2
amended (the "Securities Act"), but excluding the documents incorporated
--------------
by reference therein, and the related prospectus (the "Prospectus"), as
first filed with the Securities and Exchange Commission pursuant to Rule
424(b)() under the Securities Act;
(c) specimens of the certificates registered in the name of France Telecom
representing Class A Common Stock of the Issuer and FON Common Stock,
Series 3 of the Issuer, which entitle their holder to the issuance of and
are convertible into the Shares delivered to you;
(d) copies of the powers of attorney granted by (i) Xxxxxx Xxx, Chairman and
Chief Executive Officer of France Telecom, on May 16, 2001 in favor of
Xxxx-Xxxxx Xxxxxxxxxxx and Xxxx Xxxxxxx, and (ii) Xxxx Xxxxxxx in favor
of Xxxxxxx Xxxxxxxxx and Thierry Denant on May [], 2001;
(e) a copy of the letter of instruction of France Telecom to UMB Bank, n.a.
(the "Letter to the Transfer Agent");
----------------------------
(f) the certificate of the Directeur Juridique et Fiscal of France Telecom
-----------------------------
dated as of the date hereof; and
(g) originals or copies, certified or otherwise identified to our
satisfaction, of such corporate records, certificates of public
officials, officers of France Telecom and other persons and of such other
documents, agreements and instruments as we have deemed necessary or
advisable for the purposes of the opinions hereinafter expressed.
In our examination, we have assumed:
(i) the genuineness of all signatures, the authenticity of all documents
presented to us as originals and the conformity with the originals of all
documents submitted to us as copies;
(ii) the due authorization, execution and delivery of the Underwriting
Agreement and of the Letter to the Transfer Agent by, and that the same
are within the capacity and power of, the parties thereto, other than
France Telecom;
(iii) the accuracy as to factual matters of each document we have reviewed
(including, without limitation, the accuracy of the representations and
warranties of France Telecom contained in the Underwriting Agreement);
(iv) that the parties to the Underwriting Agreement and to the Letter to the
Transfer Agent have complied with their respective undertakings
thereunder to have been complied with as of the date hereof; and
(v) that the Shares will be sold and delivered in the manner contemplated by
the Prospectus and the Underwriting Agreement.
Our opinions set forth below are limited to the laws of the State of
New York and the federal laws of the United States, as presently in force and
currently applied in the State of New York and the United States, respectively.
3
Based upon and subject to the foregoing and subject to the
qualifications set forth below, we are of the opinion that on the date hereof:
A. The Underwriting Agreement and the Letter to the Transfer Agent have been
duly executed and delivered by [] on behalf of France Telecom under the laws
of the State of New York.
B. No consent, approval, authorization or order of, or qualification with, any
governmental body or agency of the United States or the State of New York is
required (i) for the execution and delivery by France Telecom of the
Underwriting Agreement or of the Letter to the Transfer Agent, or (ii) for
the performance of its obligations thereunder, except such as may be
required under the Securities Act, the Securities Exchange Act of 1934, as
amended, the Communications Act of 1934, as amended, the Telecommunications
Act of 1996, as amended, and the rules and regulations promulgated
thereunder (as to which we express no opinion) and except such as have been
obtained or effected or as may be required under state securities or Blue
Sky laws.
C. Under the laws of the State of New York relating to the submission to
jurisdiction, France Telecom has, pursuant tot Section 15 of the
underwriting agreement (a) validly and irrevocably submitted to the personal
jurisdiction of the U.S. District Court for the Southern District of New
York and the courts of the State of New York sitting in the Borough of
Manhattan, New York City, in any action arising out of or related to the
Underwriting Agreement (except that we express no opinion as to the subject
matter jurisdiction of any U.S. Federal Court to adjudicate any action
relating to the Underwriting Agreement where jurisdiction based on diversity
of citizenship under 28 U.S.C. s. 1332 does not exist), (b) to the fullest
extent permitted by law, validly and irrevocably waived any objection to the
venue of a proceeding in any such U.S. Federal Court (subject to the power
of such U.S. Federal Court to transfer actions pursuant to 28 U.S.C. s. 1404
(a) or to dismiss such actions or proceedings on the grounds that such a
U.S. Federal Court is an inconvenient forum for such an action or
proceedings), and (c) validly appointed CT Corporation System as its initial
authorized agent for the purpose described in Section 15 of the Underwriting
Agreement.
D. Under the Foreign Sovereign Immunities Act of 1976 of the United States of
America, as amended (the "Immunities Act"), Section 16 of the Underwriting
--------------
Agreement constitutes an explicit waiver by France Telecom, subject to the
qualifications expressed in the Immunities Act, of immunity with respect to
its obligations, liabilities or any matter arising out of or related to the
Underwriting Agreement (a) with respect to personal jurisdiction of any
court of the United States of America or the State of New York (a "United
------
States Court")
------------
and (b) with respect to (i) attachment in aid of execution of a judgment of
a United States Court and (ii) execution of such a judgment, in each case as
to property of France Telecom in the United States of America used for a
commercial activity therein (within the meaning of the Immunities Act), and
such waiver is effective and irrevocable.
E. Assuming that (a) The Depository Trust Company ("DTC") (i) is a "securities
---
intermediary" (as defined in Section 8-102(a)(14) of the UCC), (ii) has
received from France Telecom the Shares to be sold by France Telecom to an
Underwriter, and (iii) credits such Shares by book entry to an account
maintained by DTC in accordance with an agreement with such Underwriter that
is governed by the law of the State of New York and under which DTC
undertakes to treat such Underwriter as being entitled to
4
exercise the rights that comprise such Shares, such Underwriter will have
acquired a "security entitlement" (as defined in Section 8-102(a)(17) of the
UCC) with respect to such Shares, and no action based on an "adverse claim"
(as defined in Section 8-102(a)(1) of the UCC) to such Shares may be
asserted against such Underwriter if such Underwriter acquired such security
entitlement by making payment therefor as provided in the Underwriting
Agreement and without notice (within the meaning of Section 8-105 of the
UCC) of such adverse claim.
Our opinions above are subject to the effect of any applicable
bankruptcy, insolvency (including, without limitation, all laws relating to
fraudulent transfers), reorganization, moratorium or similar laws affecting
creditors' rights generally and to the effect of general principles of equity
(regardless of whether considered in a proceeding in equity or at law).
This opinion is addressed to you personally, in connection with the
transactions described in the Underwriting Agreement. It may not be relied upon
by anyone else without our prior written consent. This opinion may not be quoted
in whole or in part or otherwise referred to in any financial statement or other
public releases, nor may it be filed with any governmental agency or other
person without the prior written consent of this firm.
We expressly disclaim any responsibility to advise you or any other
person of any development or circumstance of any kind, including any change of
law or fact that may occur after the date hereof, irrespective of whether such
development, circumstance or change may affect the legal analysis, a legal
conclusion or any other matter set forth in or relating to this opinion.
Accordingly, if you rely on this opinion at any time after the date hereof, you
should seek advice of your counsel as to the proper application of this opinion
at such time.
Very truly yours,
RCT/bs/cb
EXHIBIT C
[FORM OF SHEARMAN & STERLING FRENCH LAW OPINION]
[S&S Letterhead]
[_], 2001
Xxxxxxx, Xxxxx & Co.
Xxxxxx Xxxxxxx & Co. Incorporated
UBS Warburg LLC
Deutsche Banc Alex. Xxxxx Inc.
Xxxxxxx Xxxxx Xxxxxx Inc.
Credit Suisse First Boston Corporation
X.X. Xxxxxx Securities Inc.
Xxxxxx Brothers Inc.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
c/o Goldman, Sachs & Co. and Xxxxxx Xxxxxxx & Co. Incorporated and UBS Warburg
LLC
As representatives of the several Underwriters
00 Xxxxx Xxxxxx 0000 Xxxxxxxx 000 Xxxx Xxxxxx
Xxx Xxxx, XX 000000 Xxx Xxxx, XX 00000 Xxx Xxxx, XX 00000
Ladies and Gentlemen:
We are acting as French counsel to France Telecom, a company organized
under the laws of the Republic of France, in connection with the proposed sale,
by France Telecom, of shares of FON Common Stock, Series 1 (the "Shares") issued
by Sprint Corporation, a Kansas corporation (the "Issuer"), pursuant to the
underwriting agreement dated May [_], 2001 (the "Underwriting Agreement") among
the Issuer, France Telecom, Deutsche Telekom AG, NAB Nordamerika Beteiligungs
Holding GmbH and the several underwriters named in Schedule II thereto (the
"Underwriters"). This opinion is being delivered to you at the request of
France Telecom pursuant to Section 6(e) of the Underwriting Agreement.
Capitalized terms used herein and not otherwise defined have the
meanings ascribed to them in the Underwriting Agreement.
In this capacity, we have examined:
(a) a copy of the Underwriting Agreement;
(b) the registration statement on Form S-3 (No. 333-55930) relating to the
Shares, as amended when it became effective, including the information
deemed to be a part thereof as of such time pursuant to Rule 430A under the
Securities Act of 1933, as amended (the "Securities Act"), but excluding
the documents incorporated by reference therein, and the related prospectus
(the "Prospectus"), as first filed with the Securities and Exchange
Commission pursuant to Rule 424(b)() under the Securities Act;
2
(c) a certified copy of the by-laws (statuts) of France Telecom as of January
10, 2001;
(d) an Extrait K-bis relating to France Telecom published by the Registre du
Commerce et des Societes de Paris dated May 29, 2001;
(e) specimens of the certificates registered in the name of France Telecom
representing Class A Common Stock of the Issuer and FON Common Stock,
Series 3 of the Issuer, which, respectively, entitle their holder to the
issuance of and are convertible into the Shares delivered to you;
(f) copies of the powers of attorney granted by (i) Xxxxxx Xxx, Chairman and
Chief Executive Officer of France Telecom, on May 16, 2001 in favor of
Xxxx-Xxxxx Xxxxxxxxxxx and Xxxx Xxxxxxx, and (ii) Xxxx Xxxxxxx in favor
of Xxxxxxx Xxxxxxxxx and Thierry Denant on May [_], 2001 ;
(g) a copy of the letter of instruction of France Telecom to UMB Bank, n.a.
(the "Letter to the Transfer Agent");
----------------------------
(h) the certificate of the Directeur Juridique et Fiscal of France Telecom
-----------------------------
dated as of the date hereof; and
(i) originals or copies, certified or otherwise identified to our
satisfaction, of such corporate records, certificates of public
officials, officers of France Telecom and other persons and of such other
documents, agreements and instruments as we have deemed necessary or
advisable for the purposes of the opinions hereinafter expressed.
In our examination, we have assumed:
(i) the genuineness of all signatures, the authenticity of all documents
presented to us as originals and the conformity with the originals of all
documents submitted to us as copies;
(ii) the due authorization, execution and delivery of the Underwriting
Agreement by, and that the same are within the capacity and power of, the
parties thereto, other than France Telecom;
(iii) the accuracy as to factual matters of each document we have reviewed
(including, without limitation, the accuracy of the representations and
warranties of France Telecom contained in the Underwriting Agreement);
(iv) that the parties to the Underwriting Agreement and to the Letter to the
Transfer Agent have complied with their respective undertakings
thereunder to have been complied with as of the date hereof; and
(v) that the Shares will be sold and delivered in the manner contemplated by
the Prospectus and the Underwriting Agreement.
We are admitted to practice as avocats in the Republic of France. Our
opinions set forth below are limited to French law, as presently in force and
currently applied in the Republic of France.
Based upon and subject to the foregoing and subject to the
qualifications set forth below, we are of the opinion that on the date hereof:
3
A. the Underwriting Agreement and the Letter to the Transfer Agent have been
duly authorized and executed by [] on behalf of France Telecom;
B. the execution and the performance by France Telecom of its obligations under
the Underwriting Agreement or under the Letter to the Transfer Agent do not
contravene any provision of the by-laws (statuts) of France Telecom;
C. the execution and the performance by France Telecom of its obligations under
the Underwriting Agreement or under the Letter to the Transfer Agent do not
violate any provision of applicable law, except for violations that would
not materially and adversely affect the consummation by France Telecom of
the transactions contemplated in the Underwriting Agreement and the Letter
to the Transfer Agent;
D. no consent, approval, authorization or order of, or qualification with, any
governmental body or agency is required in France (i) for the execution by
France Telecom of the Underwriting Agreement or of the Letter to the
Transfer Agent, or (ii) for the performance of its obligations thereunder;
E. France Telecom has the legal right and corporate power and all
authorizations and approvals required by law to enter into the Underwriting
Agreement and the letter to the Transfer Agent and to sell, transfer and
deliver the Shares to be sold by France Telecom;
F. the choice of the laws of the State of New York as the governing law of the
Underwriting Agreement and of the Letter to the Transfer Agent is a valid
choice of law and a French court would uphold such choice of law in a suit
initiated with respect to such agreements brought in such court, provided
such choice of law does not result in the violation of French international
public policy and French international mandatory rules; in connection with
our review of the Underwriting Agreement and of the Letter to the Transfer
Agent, we are not aware of any fact which would lead us to believe that the
choice of law as set forth in the Underwriting Agreement and in the Letter
to the Transfer Agent would result in such a violation;
G. service of process effected in the manner set forth in the Underwriting
Agreement will be effective, insofar as French law is concerned, to confer
valid personal jurisdiction over France Telecom;
H. neither France Telecom, nor any of its assets has any immunity from suit or
proceedings or the enforcement of any judgments under French law; the waiver
of immunity contained in Section 16 of the Underwriting Agreement is valid
and effective in accordance with its terms;
I. the irrevocable submission of France Telecom to the jurisdiction of the
United States District Court for the Southern District of New York and the
courts of the State of New York sitting in the Borough of Manhattan, New
York City (an "Applicable Court"), will be recognized by the courts of
France; and
J. any person who obtains a final judgment for a sum of money in an Applicable
Court against France Telecom which is not subject to appeal and in respect
of which enforcement has not been stayed, with respect to obligations of
France Telecom under the Underwriting Agreement would be entitled under
French law to seek enforcement
4
("exequatur") of such judgment against France Telecom by French courts;
exequatur would be granted if the French court in which enforcement is
sought determines that:
(a) the foreign court rendering the judgment had jurisdiction according to
French conflict of law rules, the French courts do not have exclusive
jurisdiction and the dispute is sufficiently connected to the state in
which the original action has been brought;
(b) the choice of jurisdiction is not fraudulent;
(c) the foreign court has applied the law applicable according to French
conflict of law rules;
(d) the procedures followed by the foreign court rendering the judgment
conformed to its procedural rules and were consistent with French
principles of public policy; and
(e) the judgment rendered by the foreign court is not contrary to French public
policy and is not tainted by fraud ("fraude a la loi");
Our opinions above are subject to applicable bankruptcy,
reorganization, moratorium, insolvency or similar laws affecting creditors'
rights generally. In addition, our opinion in paragraph H above is qualified by
Article 23-1 of law n(degrees) 90-568 of July 2, 1990 which provides that the
French State can veto the sale ("cession") or the contribution ("apport") by
France Telecom of telecommunication equipment that is necessary to the
performance of the obligations of its telecommunication license ("cahier des
charges"), in particular its public service obligations, and which could be
applicable to an enforcement procedure against assets of France Telecom.
This opinion is addressed to you personally, in connection with the
transactions described in the Underwriting Agreement. It may not be relied upon
by anyone else without our prior written consent. This opinion may not be quoted
in whole or in part or otherwise referred to in any financial statement or other
public releases, nor may it be filed with any governmental agency or other
person without the prior written consent of this firm.
We expressly disclaim any responsibility to advise you or any other
person of any development or circumstance of any kind, including any change of
law or fact that may occur after the date hereof, irrespective of whether such
development, circumstance or change may affect the legal analysis, a legal
conclusion or any other matter set forth in or relating to this opinion.
Accordingly, if you rely on this opinion at any time after the date hereof, you
should seek advice of your counsel as to the proper application of this opinion
at such time.
Very truly yours,
RCT/HL/bs/cb
EXHIBIT D
[FORM OF FT IN-HOUSE OPINION]
[France Telecom Letterhead]
[_], 2001
Xxxxxxx, Xxxxx & Co.
Xxxxxx Xxxxxxx & Co. Incorporated
UBS Warburg LLC
Deutsche Banc Alex. Xxxxx Inc.
Xxxxxxx Xxxxx Xxxxxx Inc.
Credit Suisse First Boston Corporation
X.X. Xxxxxx Securities Inc.
Xxxxxx Brothers Inc.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
c/o Goldman, Sachs & Co. and Xxxxxx Xxxxxxx & Co. Incorporated and UBS Warburg
LLC
As representatives of the several Underwriters
00 Xxxxx Xxxxxx 0000 Xxxxxxxx 000 Xxxx Xxxxxx
Xxx Xxxx, XX 000000 Xxx Xxxx, XX 00000 Xxx Xxxx, XX 00000
Ladies and Gentlemen:
As Directeur Juridique et Fiscal of France Telecom, a company
organized under the laws of the Republic of France, I am delivering this opinion
to you pursuant to Section 6(e) of the underwriting agreement dated May [_],
2001 (the "Underwriting Agreement") entered into among Sprint Corporation, a
Kansas corporation (the "Issuer"), France Telecom, Deutsche Telekom AG, NAB
Nordamerika Beteiligungs Holding GmbH and the several underwriters named in
Schedule II thereto (the "Underwriters") in connection with the proposed sale,
by France Telecom and other selling shareholders, of shares of FON Common Stock,
Series 1 (the "Shares") issued by the Issuer.
Capitalized terms used herein and not otherwise defined have the
meanings ascribed to them in the Underwriting Agreement.
In this capacity, I have examined:
(a) a copy of the Underwriting Agreement;
(b) the registration statement on Form S-3 (No. 333-55930) relating to the
Shares, as amended when it became effective, including the information
deemed to be a part thereof as of such time pursuant to Rule 430A under the
Securities Act of 1933, as amended (the "Securities Act"), but excluding
the documents incorporated by reference therein, and the related prospectus
(the "Prospectus"), as first filed with the Securities and Exchange
Commission pursuant to Rule 424(b)() under the Securities Act;
2
(c) a certified copy of the by-laws (statuts) of France Telecom as of January
10, 2001;
(d) an Extrait K-bis relating to France Telecom published by the Registre du
Commerce et des Societes de Paris dated May 15, 2001;
(e) specimens of the certificates registered in the name of France Telecom
representing Class A Common Stock of the Issuer and FON Common Stock,
Series 3 of the Issuer, which, respectively, entitle their holder to the
issuance of and are convertible into the Shares delivered to you;
(f) copies of the powers of attorney granted by (i) Xxxxxx Xxx, Chairman and
Chief Executive Officer of France Telecom, on May 16, 2001 in favor of
Xxxx-Xxxxx Xxxxxxxxxxx and Xxxx Xxxxxxx, and (ii) Xxxx Xxxxxxx in favor
of Xxxxxxx Xxxxxxxxx and Thierry Denant on May [_], 2001;
(g) a copy of the letter of instruction of France Telecom to UMB Bank, n.a.
(the "Letter to the Transfer Agent");
----------------------------
(h) the certificate of the Directeur Juridique et Fiscal of France Telecom
-----------------------------
dated as of the date hereof; and
(i) originals or copies, certified or otherwise identified to my
satisfaction, of such corporate records, certificates of public
officials, officers of France Telecom and other persons and of such other
documents, agreements and instruments as I have deemed necessary or
advisable for the purposes of the opinions hereinafter expressed.
In my examination, I have assumed:
(i) the genuineness of all signatures, the authenticity of all documents
presented to me as originals and the conformity with the originals of all
documents submitted to me as copies;
(ii) the due authorization, execution and delivery of the Underwriting
Agreement and of the Letter to the Transfer Agent by, and that the same
are within the capacity and power of, the parties thereto, other than
France Telecom;
(iii) the accuracy as to factual matters of each document we have reviewed
(including, without limitation, the accuracy of the representations and
warranties of France Telecom contained in the Underwriting Agreement);
(iv) that the parties to the Underwriting Agreement and to the Letter to the
Transfer Agent have complied with their respective undertakings
thereunder to have been complied with as of the date hereof; and
(v) that the Shares will be sold and delivered in the manner contemplated by
the Prospectus and the Underwriting Agreement.
My opinions set forth below are limited to French law, as presently in
force and currently applied in the Republic of France.
Based upon and subject to the foregoing and subject to the
qualifications set forth below, I am of the opinion that on the date hereof:
A. the Underwriting Agreement and the Letter to the Transfer Agent have been
duly authorized and executed by [_] on behalf of France Telecom;
3
B. the execution and the performance by France Telecom of its obligations under
the Underwriting Agreement or under the Letter to the Transfer Agent do not
contravene any provision of the by-laws (statuts) of France Telecom;
C. the execution and the performance by France Telecom of its obligations under
the Underwriting Agreement or under the Letter to the Transfer Agent do not
violate any provision of applicable law or any agreement or other instrument
binding upon France Telecom or any judgment, order or decree of any
governmental body, agency or court having jurisdiction over France Telecom,
except for violations that would not materially and adversely affect the
consummation by France Telecom of the transactions contemplated in the
Underwriting Agreement and the Letter to the Transfer Agent;
D. no consent, approval, authorization or order of, or qualification with, any
governmental body or agency is required in France (i) for the execution by
France Telecom of the Underwriting Agreement or of the Letter to the
Transfer Agent or (ii) for the performance of its obligations thereunder;
and
E. France Telecom has the legal right and corporate power, and all
authorizations and approvals required by law, to enter into the Underwriting
Agreement and the Letter to the Transfer Agent and to sell, transfer and
deliver the Shares to be sold by France Telecom;
F. neither France Telecom, nor any of its assets has any immunity from suit or
proceedings or the enforcement of any judgments under French law; the waiver
of immunity contained in Section 16 of the Underwriting Agreement is valid
and effective in accordance with its terms.
My opinions above are subject to applicable bankruptcy,
reorganization, moratorium, insolvency or similar laws affecting creditors'
rights generally. In addition, my opinion in paragraph F above is qualified by
Article 23-1 of law n(degrees) 90-568 of July 2, 1990 which provides that the
French State can veto the sale ("cession") or the contribution ("apport") by
France Telecom of telecommunication equipment that is necessary to the
performance of the obligations of its telecommunication license ("cahier des
charges"), in particular its public service obligations, and which could be
applicable to an enforcement procedure against assets of France Telecom.
This opinion is addressed to you personally, in connection with the
transactions described in the Underwriting Agreement. It may not be relied upon
by anyone else without my prior written consent. This opinion may not be quoted
in whole or in part or otherwise referred to in any financial statement or other
public releases, nor may it be filed with any governmental agency or other
person without my prior written consent.
I expressly disclaim any responsibility to advise you or any other
person of any development or circumstance of any kind, including any change of
law or fact that may occur after the date hereof, irrespective of whether such
development, circumstance or change may affect the legal analysis, a legal
conclusion or any other matter set forth in or relating to this opinion.
Accordingly, if you rely on this opinion at any time after the date hereof, you
should seek advice of your counsel as to the proper application of this opinion
at such time.
Very truly yours,
EXHIBIT E
[FORM OF CLEARY, GOTTLIEB, XXXXX & XXXXXXXX U.S. LAW OPINION]
DRAFT 28 May 01
[Names of Representatives]
as Representatives of the several Underwriters
c/o [Name and address of lead underwriters]
Ladies and Gentlemen:
We have acted as special United States counsel to Deutsche Telekom
A.G., a company organized under the laws of the Federal Republic of Germany (the
"Company"), and NAB Nordamerika Beteiligungs Holding GmbH, a company organized
under the laws of the Federal Republic of Germany and a wholly-owned subsidiary
of the Company ("Holding"), in connection with Holding's proposed sale pursuant
to a registration statement on Form S-3 (No. 333-55930) of shares of FON Common
Stock, Series 1 (the "Securities") issued by Sprint Corporation, a company
incorporated under the laws of the State of Kansas (the "Issuer"). Such
registration statement, as amended when it became effective, including the
information deemed to be a part thereof as of such time pursuant to Rule 430A
under the Securities Act of 1933, as amended (the "Securities Act"), but
excluding the documents incorporated by reference therein, is herein called the
"Registration Statement," and the related prospectus, as first filed with the
Securities and Exchange Commission pursuant to Rule 424(b)(_) under the
Securities Act is herein called the "Prospectus." This opinion letter is
furnished at the request of the Company and Holding pursuant to Section 6(f) of
the underwriting agreement dated May __, 2001 (the "Underwriting Agreement")
among the Issuer, the Company, Holding, France Telecom S.A. and the several
underwriters named in Schedule II thereto (the "Underwriters").
In arriving at the opinions expressed below, we have reviewed the
following documents:
(a) an executed copy of the Underwriting Agreement;
(b) the Registration Statement and the documents incorporated by
reference therein;
(c) the Prospectus and the documents incorporated by reference
therein;
(d) an executed copy of the Power of Attorney of Holding dated May
28, 2001 (the "Holding Power of Attorney");
(e) an executed copy of the Power of Attorney of the Company dated
May 28, 2001 (the "Company Power of Attorney");
(f) an executed copy of the Letter of Instructions of Holding to UMB
Bank, n.a. dated May 29, 2001 (the "Instruction Letter");
(g) the certificates representing Class A Common Stock of the Issuer
and FON Common Stock, Series 3 of the Issuer, which,
respectively, entitle their holder to the issuance of and are
convertible into the Securities;
(h) a [specimen/form] of the Securities; and
(i) the documents delivered to you by the Company and Holding at the
closing pursuant to the Underwriting Agreement, including copies
of the Company's and Holding's respective Articles of Association
certified by the Head of International Legal Affairs of the
Company and the Managing Directors (Geschaftsfuhrer) of Holding,
respectively.
In addition, we have reviewed the originals or copies certified or otherwise
identified to our satisfaction of all such corporate records of the Company and
Holding and such other instruments and other certificates of public officials,
officers and representatives of the Company, Holding and such other persons, and
we have made such investigations of law, as we have deemed appropriate as a
basis for the opinions expressed below.
In rendering the opinions expressed below, we have assumed the
authenticity of all documents submitted to us as originals and the conformity to
the originals of all documents submitted to us as copies. In addition, we have
assumed and have not verified (i) the accuracy as to factual matters of each
document we have reviewed (including, without limitation, the accuracy of the
representations and warranties of the Company and Holding in the Underwriting
2
Agreement) and (ii) that the Securities conform to the [specimen/form] thereof
that we have reviewed.
Based on the foregoing, and subject to the further assumptions and
qualifications set forth below, it is our opinion that:
1. The Underwriting Agreement has been duly executed and delivered by
or on behalf of the Company and Holding under the laws of the State of New York.
2. The Instruction Letter has been duly executed and delivered by
Holding under the laws of the State of New York.
3. The execution and delivery of the Underwriting Agreement by the
Company and Holding and the performance by the Company and Holding of their
respective obligations under the Underwriting Agreement do not require any
consent, approval, authorization, registration or qualification of or with any
governmental authority of the United States or the State of New York, except
such as required under the Securities Act, the Securities Exchange Act of 1934,
as amended, the Communications Act of 1934, as amended, the Telecommunications
Act of 1996, as amended, and the rules and regulations promulgated thereunder
(as to which we express no opinion).
4. Assuming that (i) the Depository Trust Company is a "clearing
corporation" as defined in Section 8-102(a)(5) of the UCC, (ii) each of the
Underwriters acquires its interest in the Securities to be sold by Holding
without notice of any "adverse claim" (within the meaning of Section 8-105 of
the UCC), (iii) such Securities are delivered to the Depository Trust Company by
Holding on the date hereof, (iv) each Underwriter has purchased such Securities
by making payment therefor, as provided for in the Underwriting Agreement, and
(v) each Underwriter has had such Securities credited to the securities account
or accounts of such
3
Underwriter maintained with the Depository Trust Company, each Underwriter will
have acquired a security entitlement (within the meaning of Section 8-102(a)(17)
of the UCC) to such Securities purchased by such Underwriter, and no action
based on an adverse claim may be asserted against such Underwriter with respect
to such security entitlement.
5. Under the laws of the State of New York relating to the submission
to jurisdiction, each of the Company and Holding, pursuant to Section 15 of the
Underwriting Agreement has (a) validly and irrevocably submitted to the personal
jurisdiction of the New York State and U.S. Federal Courts sitting in the
Borough of Manhattan, The City of New York, in any action arising out of or
related to the Underwriting Agreement (except that we express no opinion as to
the subject matter jurisdiction of any U.S. Federal Court to adjudicate any
action relating to the Underwriting Agreement where jurisdiction based on
diversity of citizenship under 28 U.S.C. s. 1332 does not exist), (b) to the
fullest extent permitted by law, validly and irrevocably waived any objection to
the venue of a proceeding in any such U.S. Federal Court (subject to the power
of such U.S. Federal Court to transfer actions pursuant to 28 U.S.C. s. 1404 (a)
or to dismiss such actions or proceedings on the grounds that such a U.S.
Federal Court is an inconvenient forum for such an action or proceeding), and
(c) validly appointed CT Corporation as its initial authorized agent for the
purpose described in Section 15 of the Underwriting Agreement.
6. Neither the Company nor Holding would enjoy any immunity based on
sovereignty from the jurisdiction of courts located in the United States of
America in connection with an action or proceeding brought under the
Underwriting Agreement in such courts. We note however, that the enforceability
in the United States of America of the waiver of immunities
4
by the Company or Holding set forth in Section 16 of the Underwriting Agreement
is subject to the limitations imposed by the Foreign Sovereign Immunities Act of
1976, as amended.
Insofar as the foregoing opinions relate to the validity, binding
effect or enforceability of any agreement, instrument or obligation of Holding,
(a) we have assumed that Holding and each other party to such agreement,
instrument or obligation has satisfied those legal requirements that are
applicable to it to the extent necessary to make such agreement, instrument or
obligation enforceable against it (except that no such assumption is made as to
Holding regarding matters of the federal law of the United States of America or
the law of the State of New York), and (b) such opinions are subject to
applicable bankruptcy, insolvency and similar laws affecting creditors' rights
generally and to general principles of equity.
The foregoing opinions are limited to the federal law of the United
States of America or the law of the State of New York.
We are furnishing this opinion letter to you, as Representatives of
the Underwriters, solely for the benefit of the Underwriters in connection with
the resale of the Securities. This opinion letter is not to be used,
circulated, quoted or otherwise referred to for any other purpose.
Very truly yours,
CLEARY, GOTTLIEB, XXXXX & XXXXXXXX
By______________________________________
, a Partner
5
EXHIBIT F
[FORM OF DT IN-HOUSE OPINION]
DRAFT 28 May 01
[Names of Representatives]
as Representatives of the several Underwriters
c/o [Name and address of lead underwriters]
Ladies and Gentlemen:
I am General Counsel of Deutsche Telekom A.G., (a company organized
under the laws of the Federal Republic of Germany (the "Company"). I am
familiar with the proposed sale by NAB Nordamerika Beteiligungs Holding GmbH, a
company organized under the laws of the Federal Republic of Germany and a
wholly-owned subsidiary of the Company ("Holding"), pursuant to a registration
statement on Form S-3 (No. 333-55930) of shares of FON Common Stock, Series 1
(the "Securities") issued by Sprint Corporation, a company incorporated under
the laws of the State of Kansas (the "Issuer"). Such registration statement, as
amended when it became effective, including the information deemed to be a part
thereof as of such time pursuant to Rule 430A under the Securities Act of 1933,
as amended (the "Securities Act"), but excluding the documents incorporated by
reference therein, is herein called the "Registration Statement," and the
related prospectus, as first filed with the Securities and Exchange Commission
pursuant to Rule 424(b)(_) under the Securities Act is herein called the
"Prospectus." This opinion letter is furnished pursuant to Section 6(f) of the
underwriting agreement dated May ___, 2001 (the "Underwriting Agreement") among
the Issuer, the Company, Holding, France Telecom and the several underwriters
named in Schedule II thereto (the "Underwriters").
In arriving at the opinions expressed below, I have reviewed the
following documents:
(a) an executed copy of the Underwriting Agreement;
(b) the Registration Statement and the documents incorporated by
reference therein;
(c) the Prospectus and the documents incorporated by reference
therein;
(d) an executed copy of the Power of Attorney of Holding dated May
28, 2001 (the "Holding Power of Attorney");
(e) an executed copy of the Power of Attorney of the Company dated
May 28, 2001 (the "Company Power of Attorney");
(f) an executed copy of the Letter of Instructions of Holding to UMB
Bank, n.a. dated May 29, 2001 (the "Instruction Letter");
(g) the certificates representing Class A Common Stock of the Issuer
and FON Common Stock, Series 3 of the Issuer, which,
respectively, entitle their holder to the issuance of and are
convertible into the Securities;
(h) a [specimen/form] of the Securities; and
(i) the documents delivered to you by the Company and Holding at the
closing pursuant to the Underwriting Agreement, including copies
of the Company's and Holding's respective Articles of Association
certified by the Head of International Legal Affairs of the
Company and the Managing Directors (Gesch_ftsfuhrer) of Holding,
respectively.
In addition, I have reviewed the originals or copies certified or otherwise
identified to my satisfaction of all such corporate records of the Company and
Holding and such other instruments and other certificates of public officials,
officers and representatives of the Company, Holding and such other persons, and
I have made such investigations of law, as I have deemed appropriate as a basis
for the opinions expressed below.
In rendering the opinions expressed below, I have assumed the
authenticity of all documents submitted to me as originals and the conformity to
the originals of all documents submitted to me as copies. In addition, I have
assumed and have not verified (i) the accuracy as to factual matters of each
document I have reviewed and (ii) that the Securities conform to the
[specimen/form] thereof that I have reviewed.
2
Furthermore, I have assumed without independent verification but with
your permission that:
1. all agreements, documents and other legal instruments concluded in
the context of the transaction described above have been duly
authorized, executed and delivered by any and all of, and that they do
have binding effect upon any and all of, the respective issuers and/or
contracting parties thereof/-to (save for the Company and Holding);
2. all such agreements, documents and other legal instruments as
described above are legally valid, binding and enforceable in
accordance with their respective terms and conditions under any and
all applicable laws other than those of Germany;
3. all representations as to factual matters made to me in connection
with the preparation of this opinion by other officers, employees and
professional advisers of the Company and/or any of its subsidiaries
involved in this transaction (expressly excluding any representation,
warranty or factual statement of the Company and/or Holding contained
in the Underwriting Agreement or any other document delivered to you
at the Closing pursuant to the Underwriting Agreement, as to which I
make no such assumption) are complete, fully true and accurate and not
misleading in any respect; and
4. that the New York or other US courts to which legal disputes will
have to be submitted in accordance with the Underwriting Agreement in
particular will assume jurisdiction over such disputes should such
arise and be formally brought to their attention.
3
Based upon the foregoing, and subject to the further assumptions and
qualifications, reservations and other provisos set forth below, it is my
opinion that:
1. The Company and Holding have corporate power to enter into the
Underwriting Agreement and perform their obligations thereunder and the Company
has corporate power to enter into the Company Power of Attorney and to perform
its obligations thereunder.
2. Holding has corporate power to enter into the Holding Power of
Attorney and Instruction Letter and to perform its obligations thereunder and to
sell, transfer and deliver the Securities.
3. The execution and delivery of the Underwriting Agreement have been
duly authorized by all necessary corporate action of the Company and Holding,
and the Underwriting Agreement has been duly executed and delivered by the
Company and Holding; the execution and delivery of the Holding Power of Attorney
and the Instruction Letter have been duly authorized by all necessary corporate
action of Holding, and the Holding Power of Attorney and the Instruction Letter
have been duly executed and delivered by Holding; the execution and delivery of
the Company Power of Attorney has been duly authorized by all necessary
corporate action of Company, and the Company Power of Attorney has been duly
executed and delivered by the Company.
4. The Holding Power of Attorney constitutes a valid and binding
obligation of Holding enforceable in accordance with its terms and the Company
Power of Attorney constitutes a valid and binding obligation of Company
enforceable in accordance with its terms.
5. The execution and delivery of the Underwriting Agreement by the
Company and Holding, the execution and delivery of the Holding Power of Attorney
and the Instruction
4
Letter by Holding, the execution of the Company Power of Attorney by the Company
and the performance by the Company and Holding of their respective obligations
under the Underwriting Agreement, the Instruction Letter, the Holding Power of
Attorney and the Company Power of Attorney (a) do not require any consent,
approval, authorization, registration or qualification of or with any
governmental authority of the Federal Republic of Germany, except such as have
been obtained or effected, (b) do not result in a breach or violation of any
provisions of any applicable law, or in a breach or violation of the terms and
provisions of, or constitute a default under, any agreement or other instrument
binding on the Company or Holding that would materially and adversely affect the
ability of the Company or Holding to consummate the transactions contemplated by
the Underwriting Agreement, and (c) do not result in a breach or violation of
the Articles of Association (Satzung) of the Company or Holding, or any
judgment, decree or order of any governmental body, agency or court having
jurisdiction over the Company or Holding.
6. The irrevocable submission by the Company and Holding to the
jurisdiction of the United States District Court for the Southern District of
New York and courts of the State of New York sitting in the Borough of
Manhattan, New York City (each an "Applicable Court"), under the Underwriting
Agreement, and the waiver by the Company and Holding of any objection to the
venue of a proceeding in such Applicable Courts, are valid and binding under the
laws of Germany.
7. Any final money judgment of any Applicable Court in respect of any
suit, action or proceeding against the Company or Holding based upon the
Underwriting Agreement or any other legal instrument, would be recognized and
enforced in Germany without re-examination or re-litigation of the substantive
matters adjudicated, provided that none of the
5
grounds for non-recognition set forth in Section 328 of the German Code of Civil
Procedure (Zivilproze_ordung) would apply, in particular, that:
(a) in accordance with the laws of Germany, the court rendering
the judgment had subject matter jurisdiction;
(b) the Company or Holding, as the case may be, made a general
appearance in the proceedings before the court rendering the
judgment or valid service of process was made on such party;
(c) the judgment is not incompatible with a judgment on the same
subject matter rendered in Germany or with a judgment on the same
matter rendered by a foreign court and to be recognized in Germany;
(d) the judgment has not resulted from legal proceedings begun
subsequent to other legal proceedings regarding the same subject
matter, which legal proceedings are incompatible therewith;
(e) the recognition of the judgment is not obviously contrary to
essential principles of the laws of Germany (ordre public), in
particular to rights granted under the constitutional law of
Germany; and
(f) reciprocity of recognition of judgments between Germany and
the jurisdiction in the United States rendering the judgment
exists.
8. The choice by the parties thereto of the law of the State of New
York to govern the Underwriting Agreement and the Instruction Letter is valid
under the laws of Germany.
9. Neither the Company nor Holding is entitled to any immunity on the
grounds of sovereignty or otherwise based upon its status as an agency or
instrumentality of government
6
from any legal action, suit or proceeding or from set off or counterclaim
relating to the Underwriting Agreement.
Any opinion given herein shall be subject to the following
qualifications, reservations and other provisos:
1. I express no opinion, nor do I intend to imply an opinion, on any
laws other than the laws of Germany and, in particular, do not express
any opinion on the laws of the US state of New York.
2. I do not purport to be an expert on German or other jurisdictions'
taxation laws. Thus I do not express, nor do I intend to imply, an
opinion on taxation issues of whatever kind.
3. This opinion is based upon the facts and conditions (including
without limitation relevant court practice) existing on the date
hereof of which I am aware, and the opinions set forth herein shall
not be deemed or otherwise held to relate to facts and conditions
prevailing, or laws and regulations entering into effect, at any time
after the date hereof.
4. The enforceability of any and all obligations under the
Underwriting Agreement and other agreements relating thereto may be
limited by all applicable bankruptcy, insolvency (including without
limitation court decisions with general application and all statutory
or other laws relating to fraudulent or preferential transfers),
reorganization, moratorium or similar laws relating to, limiting or
otherwise affecting the enforcement of creditors' rights generally.
5. The enforceability of rights under the Underwriting Agreement and
other agreements relating thereto may be or become limited or
otherwise adversely
7
affected by prescription or otherwise by reference to the lapse of
time, or may become subject to set-off or counterclaim.
6. German law allows for the free choice of law. However, even if
there is a valid choice-of-law provision subjecting a legal
relationship to any other than German law, German law may nevertheless
be applied by a competent German court if and to the extent that
otherwise there would be a breach of what is considered to be German
public order at the respective point in time or an infringement on
internationally cogent provisions of German law within the meaning of
Art. 34 of the Introductory Law to the German Civil Code
(Einfuhrungsgesetz zum Burgerlichen Gesetzbuch).
7. Court decisions duly obtained in the courts of New York are
generally of a kind and nature that they are capable of being
recognized and enforced in Germany. However, this applies in
particular only to the extent that such recognition and enforcement in
Germany would not stand in contradiction to German public order.
Whereas I would expect that the latter would mostly not be the case,
problems under section 328 of the German Code of Civil Procedure may
arise to the extent that such court decisions appear to grant what is
considered to be punitive damages in Germany and/or are based upon
excessive pre-trial discovery.
I am furnishing this opinion letter to you, as Representatives of the
Underwriters, solely for the benefit of the Underwriters in connection with the
resale of the Securities. This opinion letter is not to be used, circulated,
quoted or otherwise referred to for any other purpose.
8
This being premised it may not be distributed to, nor in any respect relied upon
by, any other natural or legal person without my prior written consent.
This opinion and any rights arising exclusively herefrom shall be
governed by and construed in accordance with German law and the German courts
shall have exclusive jurisdiction over any legal dispute arising exclusively
herefrom. The statement in this paragraph relates only to this opinion, and
does not in any way negate or qualify the validity of the irrevocable submission
by the Company and Holding to the jurisdiction of an Applicable Court in
connection with the Underwriting Agreement, their choice of New York law as the
governing law of the Underwriting Agreement and the Instruction Letter or the
opinions stated above in numbered paragraphs 4, 6, 7, 8 or 9.
Very truly yours,
Xx. Xxxxxxx Xxxx, LL.M.
9
EXHIBIT G
[FORMS OF OFFICER'S CERTIFICATE]
Certificate of Directeur Juridique et Fiscal
---------------------------------------------
of France Telecom
-----------------
The undersigned, _____________, does hereby certify that he is the
Directeur Juridique et Fiscal of France Telecom, a societe anonyme incorporated
under the laws of France ("France Telecom"), and that, in such capacity and not
--------------
in his personal capacity:
(a) Attached as Exhibit A to this certificate is a true, correct and complete
---------
copy of the Statuts of France Telecom as in effect from January 10, 2001,
the date such document was last amended, to and including the Closing Date.
Attached as Exhibit B to this certificate is the Extrait K-bis of France
---------
Telecom, as issued by the Greffe du Tribunal de Commerce de Paris on May
__, 2001.
(b) Attached to this certificate as Exhibit C and Exhibit D, respectively, are
--------- ---------
true, correct and complete copies of a power of attorney granted by (i)
Xxxxxx Xxx, Chairman and Chief Executive Officer, on May 16, 2001 in favor
of Xxxx-Xxxxx Xxxxxxxxxxx and Xxxx Xxxxxxx, and (ii) Xxxx Xxxxxxx in favor
of Xxxxxxx Xxxxxxxxx and Thierry Denant on May __, 2001, in each case
relating to the Underwriting Agreement, the Letter to the Transfer Agent
and the sale and pricing of the Shares, which powers have not been amended,
modified, revoked or rescinded since their adoption, prior to and including
the Closing Date.
(c) One or more of Xxxx-Xxxxx Xxxxxxxxxxx, Xxxx Xxxxxxx, Xxxxxxx Xxxxxxxxx and
Thierry Denant are signatories to the Underwriting Agreement and the Letter
to the Transfer Agent, and each was an incumbent officer of France Telecom
holding the title designated under his respective signature line, as of the
date of the signing of those Agreements.
(d) Xxxx-Xxxxxxxx Xxxxxx has been duly appointed to and now holds the title of
Directeur - Droit Financier et des Societes of France Telecom and is
currently serving in such capacity, and the signature below is his true and
genuine signature.
(e) As of the date hereof, no liquidation or dissolution proceeding in respect
of France Telecom has been instituted or, to the knowledge of France
Telecom, is threatened, and France Telecom has not consummated a merger in
which it is not the surviving entity.
Capitalized terms used and not defined herein shall have their
respective meanings as set forth in the underwriting agreement dated May 30,
2001, between France Telecom, Deutsche Telekom AG, NAB Nordamerika Beteiligungs
Holding GmbH, Sprint Corporation and the several underwriters named in Schedule
II thereto (the "Underwriting Agreement").
----------------------
By: __________________________________
Name:
Title: Directeur Juridique et Fiscal
Dated: [ ], 2001
I, Xxxx Xxxxxxxx Xxxxxx, Directeur - Droit Financier et des Societes
of France Telecom, hereby certify that ______________ is the duly elected,
qualified and acting Directeur Juridique et Fiscal of France Telecom and that
the signature appearing above is his genuine signature.
By: _________________________________
Name: Xxxx-Xxxxxxxx Xxxxxx
Title: Directeur - Droit Financier et des Societes
Dated: [ ], 2001
Draft 28 May 01
Deutsche Telekom AG
Certificate of the Head of International Legal Affairs
------------------------------------------------------
The undersigned, Xxxxx Xxxx, does hereby certify that he is the Head
of International Legal Affairs of Deutsche Telekom AG, a stock corporation
organized and existing under the laws of the Federal Republic of Germany ("DT"),
and that:
(a) Attached to this certificate as Exhibit A is a true, correct and
complete copy of the Articles of Association (Satzung) of DT as
in effect from [insert last amendment date], the date such
documents were last amended, to and including the Closing Date,
together with a true and accurate English language translation
thereof.
(b) Attached hereto as Exhibit B is a true, correct and complete
copy of the resolutions adopted by the Board of Management
(Vorstand) of DT at a meeting held on _______, 2001. Such
resolutions have not been amended or modified and are the only
resolutions adopted by the Board of Management of DT relating to
the sale and offering of the Shares by NAB Nordamerika
Beteiligungs GmbH, the execution and delivery by DT of the
Underwriting Agreement identified below and DT's performance of
its obligations thereunder.
(c) Attached hereto as Exhibit C is a true, correct and complete
copy of the resolutions adopted by the Supervisory Board
(Aufsichtsrat) of DT at a meeting held on _______, 2001. Such
resolutions have not been amended or modified and are the only
resolutions adopted by the Supervisory Board of DT relating to
the sale and offering of the Shares by NAB Nordamerika
Beteiligungs GmbH, the execution and delivery by DT of the
Underwriting Agreement identified below and DT's performance of
its obligations thereunder.
(d) The execution and delivery by DT of each of (i) the Underwriting
Agreement and (ii) the Power of Attorney attached hereto as
Exhibit D (the "Power of Attorney") has been duly approved by
the resolutions of the Management Board and the Supervisory
Board identified in paragraphs (b) and (c) hereof.
(e) The attorney-in-fact of DT whose signature appears on the
Underwriting Agreement was a duly appointed attorney-in-fact of
DT with authority to execute that document, as of the date of
the execution of that document.
(f) Xxxx-Xxxxxxx Xxxx and Xxxxxxx X. Xxxxxxx, whose signatures
appear on the Power of Attorney, were incumbent members of the
Managing Board of DT, as of the date of the execution of such
Power of Attorney, are currently serving in such capacity, and
the signature on the Power of Attorney are their true and
genuine signatures.
(g) As of the date hereof, no liquidation or dissolution proceeding
in respect of DT has been instituted or to the knowledge of DT
is threatened and DT has not consummated a merger in which it is
not the surviving entity.
Capitalized terms used and not defined herein shall have their
respective meanings as set forth in the underwriting agreement dated May ___,
2001, among DT, France Telecom, NAB Nordamerika Beteiligungs GmbH, Sprint
Corporation and the several underwriters named in Schedule II thereto (the
"Underwriting Agreement").
By:___________________________
Name: Xxxxx Xxxx
Title: Head of International
Legal Afffairs
Dated: June __, 2001
I, Xxxxxxx X. Xxxxxxx, member of the Board of Management of DT, hereby
certify that Xxxxx Xxxx, is the incumbent Head of International Legal Affairs of
DT, as of the date of the execution of the Power of Attorney and the
Underwriting Agreement, is currently serving in such capacity, and that the
signature appearing above is his genuine signature.
By:________________________
Name:
Title:
Dated: June __, 2001
2
CGSH Draft 28 May 01
NAB Nordamerika Beteiligungs Holding GmbH
Managing Director's Certificate
-------------------------------
The undersigned, Xxxxx Xxxxxxx, does hereby certify that he is a
Managing Director (Gesch_ftsfuhrer) of NAB Nordamerika Beteiligungs Holding
GmbH, a limited liability company organized and existing under the laws of the
Federal Republic of Germany ("NAB"), and that:
(a) Attached to this certificate as Exhibit A is a true, correct and
complete copy of the Articles of Association (Gesellschaftsvertrag)
of NAB as in effect from December 22, 1999, the date such documents
were last amended, to and including the Closing Date, together with
a true and accurate English language translation thereof.
(b) Attached to this certificate as Exhibit B are true, correct and
complete copies (together with true and accurate English language
translations thereof) of all resolutions of the sole shareholder
(Gesellschafterin) and Supervisory Board (Aufsichtsrat) of NAB as
of a recent date relating to the Underwriting Agreement, the Letter
to the Transfer Agent, the Power of Attorney attached hereto as
Exhibit C and the sale and pricing of the Shares. Such resolutions
have not been amended or modified and are the only resolutions
adopted of the sole shareholder and Supervisory Board of NAB
relating to the Underwriting Agreement, the Letter to the Transfer
Agent, the Power of Attorney attached hereto as Exhibit C (the
"Power of Attorney") and the sale and pricing of the Shares.
(c) The execution and delivery by NAB of each of (i) the Underwriting
Agreement, (ii) the Letter to the Transfer Agent and (iii) the
Power of Attorney has been duly approved by the two Managing
Directors (Gesch_ftsfuhrer) of NAB, in accordance with the
authority invested in such persons by German law, the resolutions
identified in clause (b) hereof and the Articles of Association of
NAB.
(d) The attorney-in-fact of NAB whose signature appears on each of the
Underwriting Agreement, the Letter to the Transfer Agent and the
Stock Power attached hereto as Exhibit D was a duly appointed
attorney-in-fact of NAB with authority to execute those documents,
as of the date of the execution of those documents.
(e) Xxxxxxx Xxxxxxx, whose signature appears on the Power of Attorney,
was an incumbent Managing Director (Gesch_ftsfuhrer) of NAB, as of
the date of the execution of such Power of Attorney, is currently
serving in such capacity, and the signature below is his true and
genuine signature.
(f) As of the date hereof, no liquidation or dissolution proceeding in
respect of NAB has been instituted or to the knowledge of NAB is
threatened and
NAB has not consummated a merger in which it is not the surviving
entity.
(g) The representations and warranties of NAB in the Underwriting
Agreement are true and correct as if made on the Closing Date and
NAB has complied in with all of the agreements and satisfied all of
the conditions on its part to be performed or satisfied thereunder
at or before the Closing Date.
2
Capitalized terms used and not defined herein shall have their
respective meanings as set forth in the underwriting agreement dated May ___,
2001, among France Telecom, NAB, Deutsche Telekom AG, Sprint Corporation and the
several underwriters named in Schedule II thereto (the "Underwriting
Agreement").
By:___________________________
Name: Xxxxx Xxxxxxx
Title: Managing Director
Dated: June __, 2001
3
I, Xxxxxxx Xxxxxxx, Managing Director (Gesch_ftsfuhrer) of NAB, hereby
certify that Xxxxx Xxxxxxx, whose signature appears on the Power of Attorney,
was an incumbent Managing Director (Gesch_ftsfuhrer)of NAB, as of the date of
the execution of such Power of Attorney, is currently serving in such capacity,
and that the signature appearing above is his genuine signature.
By:________________________
Name:
Title: Managing Director
Dated: June __, 2001
4
EXHIBIT H
[FORM OF TAX CERTIFICATE]
AFFIDAVIT PURSUANT TO INTERNAL REVENUE CODE SECTION 1445
AND PURSUANT TO THE REQUIREMENTS OF TREASURY REGULATION
SECTION 1.897-2(g), (h)(4)
The undersigned, being a duly authorized officer of Sprint Corporation
(the "Company"), hereby affirms that, to the best of the undersigned's
knowledge and belief:
1. The Company is not and has not been a United States real property
holding corporation (as defined in Section 897(c)(2)of the Internal Revenue
Code of 1986, as amended (the "Code")) during the five-year period ending
on the date hereof. Accordingly, as of the date hereof, the FON Common
Stock of the Company does not constitute a United States real property
interest within the meaning of Section 897(c) of the Code;
2. The Company's U.S. employer identification number is ___________.
3. The Company's address is 0000 Xxxxxxx Xxxxxxx Xxxxxxx, Xxxxxxxx,
Xxxxxx 00000.
Under penalties of perjury, the undersigned declares that to the best
of the undersigned's knowledge and belief, this affidavit is true, correct,
and complete, and that the undersigned has the authority to execute this
affidavit on behalf of the Company.
Date: ________________ __________________________________
Name:
Title:
Exhibit I
[FORM OF OFFERING PROCEDURES CERTIFICATE]
Offering Procedures Certificate
-------------------------------
Reference is made to the Underwriting Agreement (the "Underwriting
Agreement") dated as of [ ], 2001, by and among France Telecom, Deutsche
Telekom AG, NAB Nordamerika Beteiligungs Holding GmbH, the several
underwriters named in Schedule II thereto (the "Underwriters") and Sprint
Corporation, a Kansas corporation (the "Company"). Capitalized terms used
and not defined in this Certificate shall have the meaning given such terms
in the Underwriting Agreement.
As Representatives of the Underwriters, we hereby certify that the
Underwriters have conducted the offering of Firm Shares described in the
Underwriting Agreement (the "Offering") with the following restrictions:
(i) the Underwriters did not knowingly sell more than 8,741,854 Firm Shares
to any one person in the Offering without receiving the consent of an
authorized representative of the Company, unless such person was a
recognized institutional investor;
(ii) the Underwriters did not knowingly sell more than 17,483,707 Firm
Shares to any one person in the Offering without receiving the consent of
an authorized representative of the Company; and
(iii) the Underwriters did not knowingly sell any Firm Shares in the
Offering to any one person that had a current Schedule 13D under the
Securities Exchange Act of 1934 disclosing beneficial ownership in the
Company on file with the Securities and Exchange Commission (the "SEC") as
of the close of business on [insert date of the last business day before
pricing] (the "Determination Date") without receiving the consent of an
authorized representative of the Company. For purposes of this paragraph
(iii), the knowledge of the Underwriters was determined solely by checking
filings available to the general public on the SEC's XXXXX system as of the
close of business on the Determination Date.
Acting severally on behalf of themselves and the
several Underwriters set forth in Schedule II of
the Underwriting Agreement:
By: [ ]
By:
Name:
Title:
Date: _______________________
