Exhibit 4.2
AMENDMENT TO SECOND AMENDED AND RESTATED RIGHTS AGREEMENT
THIS AMENDMENT, dated ____________, 2005 (the "Amendment"), to the SECOND
AMENDED AND RESTATED RIGHTS AGREEMENT, dated as of March 16, 2004 (the "Second
Amended Agreement"), between SPRINT CORPORATION, a Kansas corporation (the
"Company"), and UMB Bank, n.a., a national banking association (the "Rights
Agent").
W I T N E S S E T H:
WHEREAS, on June 9, 1997 the Board of Directors of the Company adopted a
shareholder rights plan governed by the terms of a rights agreement between the
Company and the Rights Agent, dated as of that same date (the "Original
Agreement");
WHEREAS, in connection with the recapitalization of the Company's common
stock into FON common stock and PCS common stock, the Board of Directors
adopted, on June 29, 1998, the Amended and Restated Rights Agreement (the
"Amended Agreement"), which amended and restated the Original Agreement;
WHEREAS, in connection with the conversion of the Company's PCS Common
Stock Series 1 and Series 2 into FON Common Stock Series 1 and Series 2, the
Board of Directors adopted, on February 28, 2004, the Second Amended Agreement,
which was entered into as of March 16, 2004 and which amended and restated the
Amended Agreement effective April 23, 2004;
WHEREAS, the Company entered into an Agreement and Plan of Merger, dated as
of December 15, 2004 , by and among the Company, Nextel Communications, Inc., a
Delaware corporation ("Nextel"), and S-N Merger Corp., a Delaware corporation
wholly owned by the Company (the "Merger Sub"), as amended by a First Amendment
to Agreement and Plan of Merger dated as of May 20, 2005 (as amended, the
"Merger Agreement"), and pursuant to the Merger Agreement, Nextel will merge
into Merger Sub (the "Merger");
WHEREAS, as a condition precedent to consummation of the Merger, the Board
of DirectorIs and the stockholders of the Company shall have approved, and there
shall have been duly filed with the Secretary of State of the State of Kansas,
the Amended and Restated Articles of Incorporation in the form attached to the
proxy statement/prospectus sent to the Company's stockholders in connection with
the Merger (the "Amended and Restated Articles of Incorporation") which shall,
among other things, change the name of the Company from Sprint Corporation to
Sprint Nextel Corporation;
WHEREAS, pursuant to the Amended and Restated Articles of Incorporation,
the Company's FON Common Stock, Series 1 will be redesignated as Series 1 Common
Stock, par value $2.00 per share, and the Company's FON Common Stock, Series 2
will be redesignated as Series 2 Common Stock, par value $2.00 per share;
WHEREAS, the only series or classes of common stock authorized to be issued
under the Amended and Restated Articles of Incorporation are (i) Series 1 Common
Stock and Series 2 Common Stock, which are two separate series of common stock
of the same class, and (ii) Non-Voting Common Stock, par value $0.01 per share
("Non-Voting Common Stock"), a separate class of common stock;
WHEREAS, pursuant to the Merger Agreement, Nextel Class A Common Stock will
be converted into Series 1 Common Stock, together with the associated Rights (as
defined in the Second Amended Agreement, as amended by this Amendment), and
Nextel Class B Common Stock will be converted into Non- Voting Common Stock,
together with the associated Rights (as defined in the Second Amended Agreement,
as amended by this Amendment);
WHEREAS, on June 13, 2005, the Board of Directors of the Company approved
this Amendment which will become effective immediately prior to the Effective
Time (as defined in the Merger Agreement) of the Merger.
NOW THEREFORE, in consideration of the premises and the mutual agreements
herein set forth, the parties hereby agree, effective immediately prior to the
Effective Time (as defined in the Merger Agreement), as follows:
1. All references in the Second Amended Agreement or any exhibit thereto to
the term "Second Amended and Restated Rights Agreement" shall mean the Second
Amended and Restated Rights Agreement, as amended by this Amendment.
2. All references in the Second Amended Agreement or any exhibit thereto to
the term "Agreement" shall mean the Second Amended and Restated Rights
Agreement, as amended by this Amendment.
3. All references to Sprint Corporation in the Second Amended Agreement and
all exhibits thereto shall be replaced with the new corporate name, Sprint
Nextel Corporation.
4. Section 1(a) of the Second Amended Agreement is hereby deleted in its
entirety and replaced with the following Section 1(a):
(a) "Acquiring Person" shall mean any Person who or which, together
with all Affiliates and Associates of such Person, shall be the Beneficial
Owner of the Voting Securities of the Company then outstanding representing
15% or more of the Voting Power of the Company other than as a result of a
Qualifying Offer, but shall not include (i) the Company, (ii) any
Subsidiary of the Company, (iii) any employee benefit plan of the Company
or of any Subsidiary of the Company, (iv) any Person or entity organized,
appointed or established by the Company for or pursuant to the terms of any
such plan; and (v) any Person that inadvertently has become the Beneficial
Owner of Voting Securities of the Company then outstanding representing 15%
or more of the Voting Power of the Company and within ten Business Days
after the date upon which the Company first becomes aware of the occurrence
of such an event, the Board of Directors in its sole
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discretion (1) approves the beneficial ownership interest then held by such
Person, or (2) provides such Person a thirty day period to divest a
sufficient number of Voting Securities so as to decrease the beneficial
ownership of such Person to less than 15% of the Voting Power of the Voting
Securities then outstanding and such Person has so divested at the end of
any such thirty day period. Notwithstanding the preceding sentence:
(x) in order to effectuate Section 6.23 of the Restructuring and
Merger Agreement:
(1) a holder of Series 2 Common Stock shall not be deemed to
Beneficially Own the shares of Series 1 Common Stock issuable
upon conversion thereof prior to the time of such conversion
(including for purposes of calculating the Voting Power of the
shares held by such holder); and
(2) the Beneficial Ownership by a Cable Parent or its
Affiliates of the shares of Common Stock of the Company acquired
by such Cable Parent or its Affiliates pursuant to the
Restructuring and Merger Agreement (including Article 4, Section
6.8 and Section 7.10 of the Restructuring and Merger Agreement
and including any other shares of Common Stock of the Company
acquired upon conversion on reclassification thereof, or upon
payment of any dividend or other distribution thereon), or
acquired upon the conversion of any such shares, shall not in and
of itself constitute Beneficial Ownership of shares sufficient so
as to result in such Cable Parent or its Affiliates being an
Acquiring Person;
(y) no Person shall become an Acquiring Person solely as a result
of a reduction in the number of shares of Voting Securities
outstanding due to the repurchase of such securities by the Company,
unless and until such Person shall purchase or otherwise become the
Beneficial Owner of additional Voting Securities constituting 0.5% or
more of the Voting Power represented by such securities then
outstanding other than pursuant to a Qualifying Offer.
The phrase "then outstanding," when used with reference to a Person's
beneficial ownership of securities of the Company, shall mean the number of
such securities then issued and outstanding together with the number of
such securities not then actually issued and outstanding which such Person
would be deemed to beneficially own hereunder.
5. Section 1(k) of the Second Amended Agreement is hereby deleted in its
entirety and replaced with the following Section 1(k):
(k) "Common Stock" (i) when used with reference to the Company, shall
mean Series 1 Common Stock, and/or Series 2 Common Stock, and/or Non-Voting
Common Stock, in each case as the context requires; and (ii) when used with
reference to any Person other than the Company, shall mean the capital
stock
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of such Person with the greatest voting power, or the equity securities or
other equity interest having power to control or direct the management, of
such person.
6. The text of Section 1(u) of the Second Amended Agreement is hereby
deleted in its entirety and such section is reserved for future use by replacing
such deleted text with the following text:
(u) [RESERVED]
7. Section 1(rr) of the Second Amended Agreement is hereby deleted in its
entirety and replaced with the following Section 1(rr):
(rr) "Voting Securities" shall mean Series 1 Common Stock, Series 2
Common Stock, and any other securities of the Company the holders of which
are ordinarily, in the absence of contingencies, entitled to Vote, even
though the right to such Vote has been suspended by the happening of such a
contingency.
8. The following sections are hereby amended by adding the words "or class"
immediately following the word "series" whenever the words "series of Common
Stock" appear: Sections 3(a); 9(a); 11(a)(ii); 11(a)(iii); 11(d)(i); 11(d)(ii);
11(e); 11(k); 11(p); 12; 13(d); 14(c); 23(a); 24(c); and 24(d); provided,
however, that no such amendment shall be made to the phrase "series of Common
Stock Equivalents" in Section 11(k).
9. The last sentence of Section 11(a)(iii) of the Second Amended Agreement
is hereby deleted in its entirety and replaced with the following sentence:
For purposes of this Section 11(a)(iii), the Current Value of each
Adjustment Share of the applicable series or class shall be the Current
Market Price per share of the Common Stock of such series or class on the
Section 11(a)(ii) Trigger Date and the per share or per unit value of any
Common Stock Equivalent to such Common Stock shall be deemed to equal the
Current Market Price per share of such Common Stock on such date.
10. Sections 11(d)(i) and 11(d)(ii) are hereby amended by removing the word
"second" immediately preceding the word "proviso" whenever the words "second
proviso" appear.
11. Sections 24(a) and 24(b) are hereby amended by adding the words "or
class" immediately following the word "series" whenever the words "same series"
appear.
12. Exhibit A to the Second Amended Agreement shall be deemed to be amended
by incorporating by reference therein the terms of the Preferred Stock - Sixth
Series contained in Section 10.6 of Article SIXTH of the Amended and Restated
Articles of Incorporation effective as of the date such Amended and Restated
Articles of Incorporation become effective.
13. Exhibit B to the Second Amended Agreement is hereby deleted in its
entirety and replaced with the Exhibit B attached hereto.
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14. Section 26 of the Second Amended Agreement is hereby deleted in its
entirety and replaced with the following Section 26:
Section 26. NOTICES. Notices or demands authorized by this Agreement
to be given or made by the Rights Agent or by the holder of any Rights
Certificate to or on the Company shall be sufficiently given or made if
sent via facsimile (with confirmation), mailed by registered or certified
mail, postage prepaid, return receipt requested, or delivered by an express
courier (with confirmation), addressed (until another address is filed in
writing with the Rights Agent) as follows:
Sprint Nextel Corporation
2001 Edmund Halley Drive
Reston, Virginia 20191
Attention: General Counsel
Facsimile: (703) 433-4846
Subject to the provisions of Section 21, any notice or demand authorized by
this Agreement to be given or made by the Company or by the holder of any
Rights Certificate to or on the Rights Agent shall be sufficiently given or
made if sent via facsimile (with confirmation), mailed by registered or
certified mail, postage prepaid, return receipt requested, or delivered by
an express courier (with confirmation), addressed (until another address is
filed in writing with the Company) as follows:
UMB Bank, n.a.
P.O. Box 410064
Kansas City, Missouri 64141-0064
Attention: Corporate Trust Department
Facsimile: (816) 860-3970
Notices or demands authorized by this Agreement to be given or made by the
Company or the Rights Agent to the holder of any Rights Certificate (or, if
before the Distribution Date, to the holder of certificates representing
shares of Common Stock) shall be sufficiently given or made if sent by
first-class mail, postage prepaid, addressed to such holder at the address
of such holder as shown on the registry books of the Rights Agent (or, if
prior to the Distribution Date, on the registry books of the Transfer Agent
for the Common Stock of the Company).
15. This Amendment may be executed in any number of counterparts and each
of such counterparts shall for all purposes be deemed to be an original, and all
such counterparts shall together constitute but one and the same instrument.
16. Except as otherwise herein expressly provided, all provisions,
definitions, terms and conditions of the Second Amended Agreement are hereby
ratified and confirmed and the Second Amended Agreement, as amended by this
Amendment, shall be read, taken and construed as one instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed and their respective corporate seals to be hereunto affixed and
attested, all as of the day and year first above written.
SPRINT CORPORATION
By:___________________________
Name:
Title:
ATTEST:
By:___________________________
Name:
Title:
UMB BANK, N.A.
By:____________________________
Name:
Title:
ATTEST:
By:___________________________
Name:
Title:
6
EXHIBIT B
[Form of Rights Certificate]
Certificate No. ______________________ Rights _______________________
NOT EXERCISABLE AFTER JUNE 25, 2007 OR EARLIER IF REDEEMED BY THE
COMPANY. THE RIGHTS ARE SUBJECT TO REDEMPTION, AT THE OPTION OF
THE COMPANY, AT $.01 PER RIGHT ON THE TERMS SET FORTH IN THE
RIGHTS AGREEMENT. UNDER CERTAIN CIRCUMSTANCES, RIGHTS
BENEFICIALLY OWNED BY AN ACQUIRING PERSON (AS SUCH TERM IS
DEFINED IN THE RIGHTS AGREEMENT) OR AN AFFILIATE (AS SUCH TERM IS
DEFINED IN THE RIGHTS AGREEMENT) OR ASSOCIATE (AS SUCH TERM IS
DEFINED IN THE RIGHTS AGREEMENT) OF AN ACQUIRING PERSON AND ANY
SUBSEQUENT HOLDER OF SUCH RIGHTS MAY BECOME NULL AND VOID. [THE
RIGHTS REPRESENTED BY THIS RIGHTS CERTIFICATE ARE OR WERE
BENEFICIALLY OWNED BY A PERSON WHO WAS OR BECAME AN ACQUIRING
PERSON OR AN AFFILIATE OR ASSOCIATE OF AN ACQUIRING PERSON.
ACCORDINGLY, THIS RIGHTS CERTIFICATE AND THE RIGHTS REPRESENTED
HEREBY MAY BECOME, OR MAY ALREADY HAVE BECOME, NULL AND VOID IN
THE CIRCUMSTANCES SPECIFIED IN SECTION 7(e) OF SUCH AGREEMENT.] *
Rights Certificate
SPRINT NEXTEL CORPORATION
This certifies that ____________________________, or
registered assigns, is the registered owner of the number of
Rights set forth above, each of which entitles the owner thereof,
subject to the terms, provisions and conditions of the Second
Amended and Restated Rights Agreement, dated as of March 16, 2004
(the "Rights Agreement), between Sprint Nextel Corporation, a
Kansas corporation (the "Company"), and UMB Bank, n.a., a banking
corporation (the "Rights Agent"), as amended, to purchase from
the Company at any time before 5:00 P.M. (New York City time) on
June 25, 2007 (the "Final Expiration Date") at the office or
offices of the Rights Agent designated for such purpose, or its
successors as Rights Agent, one one-thousandth of a fully paid,
non-assessable share of Preferred Stock - Sixth Series, Junior
Participating, without par value (the "Preferred Stock") of the
Company, at a purchase price of $______ per one one-thousandth of
a share (the "Purchase Price"), upon presentation and surrender
of this Rights Certificate with the Form of Election to Purchase
and related Certificate duly executed. The Purchase Price may be
paid in cash or by certified bank check or bank draft payable to
the order of the Company. The number of Rights evidenced by this
Rights Certificate (and the number of shares which may be
purchased upon exercise thereof) set forth above, and the
Purchase Price per share set forth above, are the number and
Purchase Price as of __________, 2005, based on the Preferred
Stock as constituted at such date. The Company reserves the
right to require before the occurrence of a Triggering Event (as
such term is defined
________________________________
* The portion of the legend in brackets shall be inserted only if
applicable and shall replace the preceding sentence.
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in the Rights Agreement) that a number of Rights be exercised so
that only whole shares of Preferred Stock will be issued.
Upon the occurrence of a Section 11(a) (ii) Event (as such
term is defined in the Rights Agreement), if the Rights evidenced
by this Rights Certificate are beneficially owned by (i) an
Acquiring Person or an Affiliate or Associate of an Acquiring
Person (as such terms are defined in the Rights Agreement), (ii)
a transferee of an Acquiring Person or of any such Associate or
Affiliate, or (iii) under certain circumstances specified in the
Rights Agreement, a transferee of a person who, after such
transfer, became an Acquiring Person or an Affiliate or Associate
of an Acquiring Person, such Rights shall become null and void
and no holder hereof shall have any right with respect to such
Rights from and after the occurrence of such Section 11(a)(ii)
Event.
As provided in the Rights Agreement, the Purchase Price and
the number and kind of shares of Preferred Stock or other
securities which may be purchased upon the exercise of the Rights
evidenced by this Rights Certificate are subject to modification
and adjustment upon the happening of certain events, including
Triggering Events (as such term is defined in the Rights
Agreement).
This Rights Certificate is subject to all of the terms,
provisions and conditions of the Rights Agreement, which terms,
provisions and conditions are hereby incorporated herein by
reference and made a part hereof and to which Rights Agreement
reference is hereby made for a full description of the rights,
limitations of rights, obligations, duties and immunities
hereunder of the Rights Agent, the Company and the holders of the
Rights Certificates, which limitations of rights include the
temporary suspension of the exercisability of such Rights under
the specific circumstances set forth in the Rights Agreement.
Copies of the Rights Agreement are on file at the principal
executive offices of the Company and the principal office of the
Rights Agent and are also available upon written request to the
Company.
This Rights Certificate, with or without other Rights
Certificates, upon presentation and surrender at the principal
office or offices of the Rights Agent designated for such
purpose, may be exchanged for another Rights Certificate or
Rights Certificates of like tenor and date evidencing Rights
entitling the holder to purchase a like aggregate number of one
one-thousandths of a share of Preferred Stock as the Rights
evidenced by the Rights Certificate or Rights Certificates
surrendered shall have entitled such holder to purchase. If this
Rights Certificate shall be exercised in part, the holder shall
be entitled to receive upon presentation and surrender hereof
another Rights Certificate or Rights Certificates for the number
of whole Rights not exercised.
Subject to the provisions of the Rights Agreement, the
Rights evidenced by this Certificate may be redeemed by the
Company at its option at a redemption price of $.01 per Right at
any time before the earlier of the close of business on (i) the
tenth business day following a Stock Acquisition Date and (ii)
the Final Expiration Date. In addition, subject to the
provisions of the Rights Agreement, each Right evidenced by this
Certificate may be exchanged by the Company at its option for two
shares of the applicable series or class (which the holder would
have been entitled to receive upon the exercise thereof) of
Common Stock (as such term is defined in the Rights Agreement) of
the Company (subject to adjustment for any stock split, stock
dividend or similar transaction) following the time that a Person
becomes an Acquiring
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Person and before the time an Acquiring Person, together with
the Affiliates and Associates of the Acquiring Person, own 50%
or more of the Voting Power (as such term is defined in the Rights
Agreement) of the Company.
No fractional shares of Preferred Stock will be issued upon
the exercise of any Right or Rights evidenced hereby (other than
fractions which are integral multiples of one one-thousandth of a
share of Preferred Stock, which may, at the election of the
Company, be evidenced by depositary receipts), but in lieu
thereof a cash payment will be made, as provided in the Rights
Agreement.
No holder of this Rights Certificate, as such, shall be
entitled to vote or receive dividends or be deemed for any
purpose the holder of shares of Preferred Stock or of any other
securities of the Company which may at any time be issuable on
the exercise hereof, nor shall anything contained in the Rights
Agreement or herein be construed to confer upon the holder
hereof, as such, any of the rights of a stockholder of the
Company or any right to vote for the election of directors or
upon any matter submitted to stockholders at any meeting thereof,
or to give or withhold consent to any corporate action, or to
receive notice of meetings or other actions affecting
stockholders (except as provided in the Rights Agreement), or to
receive dividends or subscription rights, or otherwise, until the
Right or Rights evidenced by this Rights Certificate shall have
been exercised as provided in the Rights Agreement.
This Rights Certificate shall not be valid or obligatory for
any purpose until it shall have been countersigned by the Rights
Agent.
WITNESS the facsimile signature of the proper officers of
the Company and its corporate seal.
Dated as of ______________________. ______________
SPRINT NEXTEL CORPORATION
By: _________________________________
Name:
ATTEST: Title:
___________________________
Secretary
Countersigned:
UMB BANK, N.A.
By: _______________________
Authorized Signature
B-3
[Form of Reverse Side of Rights Certificate]
FORM OF ASSIGNMENT
(To be executed by the registered holder if such
holder desires to transfer any or all of the
Rights represented by this Rights Certificate.)
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
_______________________________________________________________________________
(Please print name, address and social security or other
identifying number of transferee)
________________________ (_______) of the Rights represented by this
Rights Certificate, together with all right, title and interest in and to
said Rights, and does hereby irrevocably constitute and appoint
____________________________ Attorney, to transfer the Rights on the books
of Sprint Nextel Corporation, with full power of substitution.
Dated: ____________________________, ___________
_________________________________________
Signature
Signature Guaranteed:
CERTIFICATE
The undersigned hereby certifies by checking the appropriate
boxes that:
(1) this Rights Certificate [ ] is [ ] is not being sold,
assigned and transferred by or on behalf of a Person who is or
was an Acquiring Person or an Affiliate or Associate of an
Acquiring Person (as such terms are defined in the Rights
Agreement);
(2) after due inquiry and to the best knowledge of the
undersigned, it [ ] did [ ] did not acquire the Rights
evidenced by this Rights Certificate from any Person who is, was
or subsequently became an Acquiring Person or an Affiliate or
Associate of an Acquiring Person.
Dated: ______________________, ________
______________________________________
Signature
Signature Guaranteed:
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NOTICE
The signature to the foregoing Assignment and Certificate
must correspond to the name as written upon the face of this
Rights Certificate in every particular, without alteration or
enlargement or any change whatsoever, and must be guaranteed by a
Medallion Signature Guarantee.
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FORM OF ELECTION TO PURCHASE
(To be executed by the registered holder if such holder desires
to exercise any or all of the Rights represented by this Rights
Certificate.)
To: SPRINT NEXTEL CORPORATION:
The undersigned hereby irrevocably elects to exercise
________________ (_______) Rights represented by this Rights
Certificate to purchase the shares of Preferred Stock issuable
upon the exercise of the Rights (or such other securities of the
Company or of any other person which may be issuable upon the
exercise of the Rights) and requests that certificates for such
shares be issued in the name of and delivered to:
Please insert social security
or taxpayer identification number _______________________
______________________________________________________________________________
(Please print name and address)
______________________________________________________________________________
If such number of Rights shall not be all the Rights
evidenced by this Rights Certificate, a new Rights Certificate
for the balance of such Rights shall be registered in the name of
and delivered to:
Please insert social security
or taxpayer identification number _______________________
______________________________________________________________________________
(Please print name and address)
______________________________________________________________________________
Dated: ______________________, ________
________________________________________
Signature
Signature Guaranteed:
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CERTIFICATE
The undersigned hereby certifies by checking the appropriate
boxes that:
(1) the Rights evidenced by this Rights Certificate [ ]
are [ ] are not being exercised by or on behalf of a Person who
is or was an Acquiring Person or an Affiliate or Associate of an
Acquiring Person (as such terms are defined in the Rights
Agreement);
(2) after due inquiry and to the best knowledge of the
undersigned, it [ ] did [ ] did not acquire the Rights
evidenced by this Rights Certificate from any Person who is, was
or became an Acquiring Person or an Affiliate or Associate of an
Acquiring Person.
Dated: _______________________, __________
____________________________________
Signature
Signature Guaranteed:
NOTICE
The signature to the foregoing Election to Purchase and
Certificate must correspond to the name as written upon the face
of this Rights Certificate in every particular, without
alteration or enlargement or any change whatsoever, and must be
guaranteed by a Medallion Signature Guarantee.
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