UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
----------------------------------
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15 (d)
of the Securities Exchange Act of 1934
--------------------------------------
August 9, 2005
Date of Report
(Date of earliest event reported)
Shenandoah Telecommunications Company
(Exact name of registrant as specified in its charter)
Virginia 0-9881 54-1162807
(State or other jurisdiction of (Commission File Number) (I.R.S. Employer
incorporation or organization) Identification Number)
500 Shentel Way
P.O. Box 459
Edinburg, VA 22824
(Address of principal executive office) (Zip code)
Registrant's telephone number, including area code: (540) 984-4141
1
Item 8.01 Other Events.
On August 9, 2005, Shenandoah Personal Communications Company ("Shentel"), a
wholly owned subsidiary of the Company, entered into a Forbearance Agreement
(the "Agreement") with Sprint Corporation and certain of its subsidiaries
("Sprint") relating to the management agreement between Shentel and Sprint. The
Agreement reflects Sprint's and the Company's desire to avoid litigation while
they continue to discuss changes to the management agreement in light of the
merger involving Sprint and Nextel Communications, Inc.
The Agreement sets forth Sprint's agreement as to certain parameters for the
operations of Nextel's wireless business in the territories operated by Shentel
following the merger of Sprint and Nextel. The Agreement also sets forth
Shentel's agreement not to initiate litigation or seek certain injunctive or
equitable relief under certain circumstances, in each case during the period of
time that the Agreement remains in effect.
A copy of the Agreement is filed herewith as Exhibit 99.1 and is incorporated
herein by reference.
Item 9.01. Financial Statements and Exhibits.
(c) Exhibits
The following exhibit is filed with this Current Report.
Exhibit No Description
---------- -------------------------------------------------------------
99.1 Forbearance Agreement, dated August 9, 2005, among Sprint
Corporation, Sprint Spectrum L.P., WirelessCo L.P., Sprint
Communications Company L.P., Sprint Telephony PCS, L.P., APC PCS,
LLC, PhillieCo, L.P., Sprint PCS License, L.L.C., and Shenandoah
Personal Communications Company.
Forward-Looking Statements
"Safe Harbor" Statement under the Private Securities Litigation Reform Act of
1995. A number of the matters and subject areas discussed in this report that
are not historical or current facts deal with potential future circumstances and
developments, including without limitation, any changes to the Company's
relationship with Sprint. The discussion of such matters and subject areas is
qualified by the inherent risks and uncertainties surrounding future
expectations generally, and also may materially differ from the Company's actual
future experience involving any one or more of such matters and subject areas.
Such risks and uncertainties include without limitation: the importance of the
Company's affiliation with Sprint; the potential impact of the pending
Sprint-Nextel merger on the Company's affiliation with Sprint as well as
Sprint's competitiveness in the wireless industry; the outcome of any other PCS
affiliate of Sprint's litigation with Sprint concerning the pending
Sprint-Nextel merger; changes in Sprint's affiliation strategy as a result of
the pending Sprint-Nextel merger or any other merger involving Sprint; and those
additional factors that are described from time to time in the Company's reports
filed with the Securities and Exchange Commission, including the Company's
annual report on Form 10-K for the year ended December 31, 2004 and their
subsequent quarterly filing on Form 10-Q. This report speaks only as of its
date, and the Company disclaims any duty to update the information herein.
2
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
SHENANDOAH TELECOMMUNICATIONS COMPANY
(Registrant)
August 9, 2005 /S/ EARLE A. MACKENZIE
------------------------------------------
Earle A. MacKenzie
Executive Vice President and
Chief Financial Officer
(Duly Authorized Officer and Principal
Financial Officer)
3
CONFIDENTIAL SETTLEMENT MATERIALS
PROTECTED BY FEDERAL RULE EVID. 408
AND DELAWARE RULE EVID. 408
SPRINT/SHENANDOAH FORBEARANCE AGREEMENT Exhibit 99.1
THIS FORBEARANCE AGREEMENT, dated August 9, 2005 (this "Agreement"), is
made and entered into by and among Sprint Corporation, Sprint Spectrum L.P.,
WirelessCo L.P., Sprint Communications Company L.P., Sprint Telephony PCS, L.P.,
APC PCS, LLC, PhillieCo, L.P., and Sprint PCS License, L.L.C. (collectively,
"Sprint"); and Shenandoah Personal Communications Company (the "Affiliate").
RECITALS
A. Affiliate and certain of the Sprint entities referenced above are
parties to a Sprint PCS Management Agreement, dated as of November 5, 1999, as
amended (the "Management Agreement").
B. On December 15, 2004, Sprint Corporation, Nextel Communications, Inc.
("Nextel") and S-N Merger Corp. entered into an Agreement and Plan of Merger,
pursuant to which Nextel will merge and into S-N Merger Corp. and become a
wholly owned subsidiary of Sprint Corporation (the "Sprint Nextel Merger").
C. The parties are entering into this Agreement to set forth the
Affiliate's agreement to forbear from pursuing claims against Sprint and its
Subsidiaries and Related Parties during the period of time that this Agreement
remains in effect and not to seek certain injunctive relief under certain
circumstances during the period of time that this Agreement remains in effect
and to outline certain actions not to be taken by Sprint and its Subsidiaries
and Related Parties following the completion of the Sprint Nextel Merger during
the period of time that this Agreement remains in effect.
D. On the date of the Sprint Nextel Merger, Nextel will become a
subsidiary of Sprint Corporation, and Sprint Corporation will change its name to
"Sprint Nextel Corporation." The terms "Sprint Corporation" and "Sprint" as used
in this Agreement will also refer to Sprint Nextel Corporation following the
Sprint Nextel Merger.
AGREEMENT
In consideration of the recitals and mutual covenants and agreements
contained in this Agreement, the sufficiency of which consideration is hereby
acknowledged, the parties, intending to be bound, agree as follows:
ARTICLE I
DEFINITIONS
Section 1.1 Certain Definitions. The following terms are used in this
Agreement with the meanings assigned below:
"Affiliate Group" means employees of Sprint Corporation and its
Subsidiaries who are housed in and work out of (a) the Affiliate Relations
Group, (b) the Affiliate/PLS-Plan & Strategy Group or (c) the
Affiliate/PLS-Client Service/Technology Group, each as currently structured
within Sprint Corporation. For purposes of clarification, each of the groups
currently reports to David Bottoms, Vice President-Strategic Partners. The term
"Affiliate Group" also refers to any successor group of employees to those
groups referenced above that may result from any internal management
restructuring within Sprint Corporation and its Subsidiaries or Related Parties.
"CDMA Customers" means subscribers of products and services offered by
Sprint PCS and Sprint PCS Affiliates using the CDMA Network whose account is
assigned to the Service Area.
"CDMA Network" means the national wireless network owned and operated by
Sprint, the Affiliate and the other Sprint PCS Affiliates providing services
using code division multiple access technology.
"CDMA Products and Services" means products and services operating on the
CDMA Network.
"iDEN Customers" means Nextel customers located in the Service Area who
are using iDEN Products and Services.
"iDEN Network" means the national integrated digital enhanced network
owned and operated by Nextel and its Related Parties on the date of the Sprint
Nextel Merger.
"iDEN Products and Services" means Nextel products and services operating
on the iDEN Network.
"Local Media" means (a) a print publication that is primarily distributed
within the Service Area, (b) a radio or television station that primarily
broadcasts into the Service Area or (c) a billboard or other physical
advertising presence in the Service Area.
"Service Area" has the meaning set forth in the Management Agreement,
which for the avoidance of doubt shall mean the aggregate of the Service Area
defined and described in each of the Management Agreement.
"Sprint PCS Affiliate" means the Affiliate and the Other Managers.
"Subsidiary" of any Person as of any relevant date means any corporation
or other entity of which such Person owns or controls, directly or indirectly, a
majority of the outstanding voting securities or other ownership interests,
provided that Nextel Partners, Inc. will not be deemed a Subsidiary of Sprint
for purposes of this Agreement until Sprint or any of its Related Parties at any
time owns or controls, directly or indirectly, 50% or more of the voting
securities or other ownership interests of Nextel Partners (as defined in
Section 2.10(a)).
-2-
Section 1.2 Management Agreement. Capitalized terms used but not defined
herein have the meanings assigned to them in the Management Agreement.
ARTICLE II
COVENANTS BY SPRINT
Section 2.1 Preservation of Confidential Information.
(a) Marketing. Sprint will not allow any proposed marketing and
advertising campaign materials, proposed service plans, or proposed credit
policies provided by the Affiliate to Sprint to be reviewed by employees of
Sprint Corporation and its Subsidiaries or Related Parties other than the
Affiliate Group and employees with direct responsibility for implementing such
materials, plans or policies and/or reviewing such materials, plans or policies
for compliance with the Trademark License Agreements, the Marketing
Communication Guidelines or other applicable provisions of the Management
Agreement (who will not use the information for any other purpose).
(b) Billing. Sprint will not (i) make billing systems containing
data relating to CDMA Customers (e.g., Convergis/P2K) available to employees of
Sprint Corporation or its Subsidiaries or Related Parties in any retail store
location, sales channel, sales office (except national account managers who do
not directly engage in marketing or sales efforts with national accounts
headquartered in the Service Area for iDEN Products and Services in the Service
Area) or administrative office that offers, supports or is involved with iDEN
Products and Services in the Service Area, and agrees not to share any such data
with any such employees, or (ii) provide any billing inserts or similar types of
communications reflecting or otherwise referring to the Sprint Nextel Merger or
any resulting brand change to CDMA Customers or iDEN Customers in the Service
Area that are designed to induce or encourage, or could reasonably be expected
to induce or encourage, CDMA Customers to switch to iDEN Products and Services
(except for de minimis amounts that do not have a detrimental competitive impact
on the Affiliate's business).
(c) Customer Care and Telemarketing. (i) Sprint will maintain a
process of identifying and directing to designated customer service
representatives CDMA Customers and iDEN Customers who call Sprint for customer
care services. Any CDMA Customer mistakenly directed to a customer care
representative designated to service iDEN Customers will be transferred to a
customer care representative designated to service CDMA Customers. Any iDEN
Customer mistakenly directed to a customer care representative designated to
service CDMA Customers will be transferred to a customer care representative
designated to service iDEN Customers. Sprint agrees to make the details of such
process available to the Affiliate upon request. Notwithstanding the foregoing,
Sprint will have certain customer care representatives who are permitted to
access information regarding both CDMA Customers and iDEN Customers for the sole
purpose of serving customers who use both CDMA Products and Services and iDEN
Products and Services so long as such customer care representatives are not
engaged in marketing or selling iDEN Products and Services to CDMA Customers.
Customer care representatives shall be permitted to make arrangements to provide
either iDEN or CDMA
-3-
handsets, upon request, to existing CDMA Customers and existing iDEN Customers
requesting them.
(ii) Any customer care representative advised that a CDMA
Customer desires to terminate its use of CDMA Products and Services will first
seek to convince such CDMA Customer to continue its use of CDMA Products and
Services. If such efforts are unsuccessful, the representative may seek to sell
iDEN Products and Services to such customers. The converse process will apply
for any iDEN Customer seeking to terminate its use of iDEN Products and
Services. Sprint agrees to provide to the Affiliate, at least as frequently as
current practice (or, if there is no such current practice, at least every two
weeks), a detailed report setting forth the CDMA Customers in the Service Area
who have terminated the use of CDMA Products and Services and have purchased
iDEN Products and Services.
(iii) Sprint and its Subsidiaries will not waive or reduce
termination fees as compared to current levels in order to facilitate any CDMA
Customer in the Service Area transferring from CDMA Products and Services to
iDEN Products and Services.
(d) Subscriber and Financial Data. Affiliate-specific information in
Sprint's EMIS System (or any successor system) will only be able to be accessed
by the Affiliate Group. Other subscriber and financial information provided by
the Affiliate to Sprint (or otherwise generated by Sprint or any other party and
relating to the Affiliate) will only be available to the Affiliate Group and
other employees and consultants of Sprint Corporation and its Related Parties in
the ordinary course of business consistent with past practice, unless such
information is aggregated with subscriber and financial information of the other
Sprint PCS Affiliates on a basis that does not permit identification of the
Affiliate-specific information; provided that in no event will any such
information be used by any such employee or consultant in a manner that
adversely affects the competitive position of the CDMA Products and Services in
relation to the iDEN Products and Services in the Service Area. Sprint will not
make any external or public disclosure of the Affiliate's subscriber and
financial information, unless such information is aggregated with subscriber and
financial information of the other Sprint PCS Affiliates on a basis that does
not permit identification of the Affiliate-specific information.
(e) Network Performance. Sprint will not allow network performance
data and Format C reports provided by the Affiliate to Sprint (or otherwise
generated by Sprint or any other party and relating to the Affiliate) to be
reviewed by employees of, or consultants to, Sprint Corporation and its
Subsidiaries or Related Parties other than the Affiliate Group and employees
whose function relates primarily to CDMA Network performance (who will not use
the information for any other purpose), unless such information is aggregated
with information from the other Sprint PCS Affiliates on a basis that does not
permit identification of the Affiliate-specific information. However, Sprint
will be permitted to use Format C reports provided by the Affiliate (or
otherwise generated by Sprint and relating to the Affiliate) to update coverage
maps and to disclose such coverage maps consistent with past practice.
(f) Handset Logistics. Sprint will not allow handset logistical data
and related forecasts provided by the Affiliate to Sprint (or otherwise
generated by Sprint or any other party and relating to the Affiliate) to be
reviewed and used by employees of, or consultants to, Sprint Corporation and its
Subsidiaries or Related Parties other than the Affiliate Group and employees
-4-
whose function relates primarily or is necessary to the procurement of handsets
(who will not use the information for any other purpose), unless such
information is aggregated with handset logistical data and related forecasts of
the other Sprint PCS Affiliates on a basis that does not permit identification
of the Affiliate-specific information.
(g) Business Forecasts. Sprint will not allow business forecast data
provided by the Affiliate to Sprint (or otherwise generated by Sprint or any
other party and relating to the Affiliate) to be reviewed by employees of, or
consultants to, Sprint Corporation and its Subsidiaries or Related Parties other
than the Affiliate Group and employees who need to have such information for
operational reasons (e.g., determining capacity needs for shared network
elements), who will not use the information for any other purpose. However, such
data may be reviewed by other employees after it has been aggregated with data
of the other Sprint PCS Affiliates on a basis that does not permit
identification of the Affiliate-specific information.
(h) Business Accounts Data. Sprint will not share any information
regarding CDMA Customers' business accounts with any consultants or with any
employees other than the Affiliate Group and employees who need to have such
information for operational reasons (and who will not use the information for
any other purpose). All CDMA Customers' business accounts (other than national
accounts) shall only be serviced by the Affiliate, and the CDMA service of
national accounts headquartered in the Service Area shall continue to be
serviced by Sprint and the applicable Affiliate consistent with past practice.
Section 2.2 CDMA Products and Services. Sprint and its Subsidiaries will
not use the iDEN Network in the Service Area or any spectrum in the Service Area
owned by Nextel or its Subsidiaries to provide CDMA Products and Services. For
purposes of clarification, the parties intend the above provision to apply
(without limitation) to the G block 1.9 GHz spectrum to be obtained by Nextel,
in addition to Nextel's other spectrum.
Section 2.3 Dual Mode Handsets. Sprint and its Subsidiaries will not offer
or sell, directly or indirectly, any dual mode CDMA/iDEN handsets in the Service
Area, nor will Sprint or its Subsidiaries offer or sell, directly or indirectly,
any dual mode CDMA/iDEN handsets in any areas nationwide other than the Service
Area unless such handsets are programmed to use the Affiliate's CDMA Network in
the Service Area on the first priority basis prior to using the iDEN Network in
the Service Area (i.e., all such handsets shall "prefer" the Affiliate's CDMA
Network).
Section 2.4 Distribution. Sprint will not, and will not permit any of its
Subsidiaries to, sell CDMA Products and Services in the Service Area in any
retail store locations owned or operated by Sprint, Nextel or any of their
Subsidiaries, agent retail stores controlled by Sprint, Nextel or any of their
Subsidiaries or through business sales representatives (other than with respect
to national accounts, who are subject to Section 2.8) employed by Sprint, Nextel
or any of their Subsidiaries (collectively, "Nextel Distribution Points").
Sprint will not, and will not permit any of its Subsidiaries to, sell CDMA
Products and Services through national retailers in the Service Area other than
through its National Distribution Program provided for in Section 4.1 of the
Management Agreement. Sprint will implement mechanisms whereby users accessing
any website operated by Sprint will first encounter an opening page that will
give the user the option to select CDMA Products and Services or iDEN Products
and Services (provided that the prompt
-5-
to select iDEN Products and Services will be of equal or lesser prominence than
the prompt to select CDMA Products and Services), and will direct all users
selecting the prompt for CDMA Products and Services to an internet-based
marketing site handling only CDMA Products and Services.
Section 2.5 Use of Brands in Service Area. Sprint will not, and will not
permit any of its Subsidiaries to, change the branding on the outside or inside
of any Nextel Distribution Point in the Service Area, including without
limitation signage (inside or outside), uniforms, business cards, point-of-sale
materials, collateral and displays; provided, that with respect to collateral
only, the Affiliate acknowledges the possibility that there may occur limited,
de minimis violations of this sentence, in which case upon written or telephonic
notice from the Affiliate, Sprint shall use its commercially reasonable efforts
to promptly remove the offending collateral or otherwise remedy the situation.
However, Sprint-branded collateral will appear in connection with iDEN Products
and Services in national retailers but Sprint will immediately commence its
commercially reasonable efforts to cause the use and presence of such collateral
to comply with the prior sentence as soon as practicable, but in any event by
October 1, 2005. In addition, iDEN handsets (including packaging) offered for
sale or sold directly or indirectly (including by or through national retailers)
in the Service Area will not be labeled with the word "Sprint" or any logo
associated therewith (including the red diamond or the new yellow "pin drop"
logo, or any new logo or branding) (the "Sprint Brands"). All other materials or
items used in the marketing or sale of iDEN Products and Services by or through
national retailers in the Service Area shall not utilize or include the Sprint
Brands.
Section 2.6 Affiliate Group. The Affiliate Group will not be involved with
any planning, marketing or operations relating to iDEN Products and Services,
other than with respect to other Sprint PCS Affiliates that elect to sell iDEN
Products and Services.
Section 2.7 Advertising and Marketing.
(a) Sprint will not, and will not permit any of its Subsidiaries to,
purchase advertising from any Local Media to promote specific iDEN Products and
Services or the iDEN Network using the Sprint Brands, and will not permit any
other party to advertise or otherwise promote in Local Media specific iDEN
Products and Services or the iDEN Network using the Sprint Brands in the Service
Area.
(b) Any print advertising not prohibited by Section 2.7(a) that uses
the Sprint Brands to promote specific iDEN Products and Services or the iDEN
Network and that is reasonably likely to be seen by consumers in the Service
Area will contain a disclaimer to the effect that such iDEN Products and
Services are available only at participating retail locations.
(c) Sprint will not, and will not permit its Subsidiaries to,
undertake any new local pricing plans with respect to iDEN Products and Services
in the Service Area that are unique to the Service Area and inconsistent with
Sprint's nationwide pricing plans for iDEN Products and Services.
(d) Sprint will not, and will not permit any of its Subsidiaries to,
make any promotional offers to CDMA Customers in the Service Area that are
intended, or could
-6-
reasonably be expected, to induce or otherwise encourage such CDMA Customers to
reduce or cease the use of CDMA Products and Services in favor of iDEN Products
and Services (e.g., awarding free iDEN handsets to CDMA Customers who turn in
their CDMA handsets).
(e) Sprint will avoid, and will cause its Subsidiaries to avoid,
sending any direct mail or engaging in outbound telemarketing targeted for or
into the Service Area that uses the Sprint Brands to promote iDEN Products and
Services; provided that the Affiliate recognizes that Sprint's systems will not
permit total elimination of such marketing and that an immaterial de minimis
amount of such marketing might occur in the Service Area. Upon written notice
from the Affiliate that such immaterial de minimis marketing is occurring in the
Service Area, Sprint will promptly use its commercially reasonable efforts to
reduce such marketing to negligible levels.
(f) Nothing in this Agreement will prohibit Sprint from sending to
customers an announcement of the Sprint Nextel Merger that does not promote any
specific product or service.
Section 2.8 National Accounts. The parties acknowledge that Nextel and
Sprint (together with the Sprint PCS Affiliates) currently maintain separate and
distinct "national accounts" programs. Sprint shall (following the Sprint Nextel
Merger), and shall cause its Subsidiaries to, maintain separate national
accounts teams for CDMA Products and Services and iDEN Products and Services
with respect to national accounts headquartered in the Service Area, and no
manager or member of Sprint's national accounts team for CDMA Products and
Services shall market any iDEN Products and Services to national accounts
headquartered in the Service Area.
Section 2.9 Customer Transfers.
(a) Sprint will not utilize any review and/or approval rights under
the Trademark License Agreements, the Marketing Communication Guidelines or
other applicable provisions of the Management Agreement to interfere with the
Affiliate's efforts to market CDMA Products and Services to iDEN Customers in
the Service Area.
(b) Sprint will not waive or reduce below current levels any
termination fees or other amounts payable by a customer in the Service Area in
order to facilitate any CDMA Customer's transfer from CDMA Products and Services
to iDEN Products and Services.
(c) Neither Sprint nor Nextel will increase or add any fees payable
by a customer in the Service Area who desires to switch to a CDMA Product and
Service from an iDEN Product and Service in the Service Area unless such
increased or added fee would also apply to a customer switching from a CDMA
Product and Service to an iDEN Product and Service in the Service Area.
Section 2.10 Nextel Partners.
(a) Sprint agrees that if Sprint and its Related Parties at any time
own, directly or indirectly, 50% or more of the voting stock of Nextel Partners,
Inc. or any successor to its
-7-
business ("Nextel Partners"), Sprint shall cause Nextel Partners to be bound
hereby by executing an addendum to this Agreement. Upon the execution of such
addendum, Nextel Partners shall be bound hereby, and shall have the same rights
and obligations hereunder as Sprint. Within five (5) Business Days of the date
Sprint becomes the direct or indirect owner of 50% or more of the voting stock
of Nextel Partners, Sprint shall deliver to the Affiliate a fully executed
addendum hereto as described above, whereupon the Affiliate shall countersign
such addendum. If Sprint fails to deliver such addendum, the Affiliate may elect
to terminate this Agreement, which shall constitute its sole remedy under this
Agreement for such failure or for any failure of Nextel Partners and its
Subsidiaries to comply with this Agreement prior to such time as Sprint
Corporation directly or indirectly owns 100% of the voting stock of Nextel
Partners (it being understood that nothing in this Agreement shall be construed
as restricting the Affiliate's ability to claim a breach of the Management
Agreement by reason of Sprint Corporation's acquisition of greater than 50% of
the voting stock of Nextel Partners or the activities of Nextel Partners
following such acquisition).
(b) Until such time as Sprint and its Related Parties acquires 100%
of the voting stock of Nextel Partners, Nextel Partners will not have access to
any Confidential Information.
(c) The Affiliate Group will not be involved with any planning,
marketing, operations or any other aspects of Sprint's relationship with Nextel
Partners regarding iDEN Products and Services, either prior to or following any
acquisition by Sprint of any additional ownership interest in Nextel Partners.
(d) Sprint will not permit the use of the Sprint Brands by Nextel
Partners, unless ordered to do so by the final order of a court of competent
jurisdiction. In the event Sprint is so ordered, the Affiliate may elect to
terminate this Agreement.
(e) The parties acknowledge that for purposes of this Agreement (and
only for purposes of this Agreement), Nextel Partners shall not be considered to
be a "Related Party" of Sprint or Nextel until such time as it becomes a
Subsidiary of Sprint. The parties agree that the preceding sentence addresses
only the use of the term "Related Party" in this Agreement and has no bearing on
the separate issue of whether Nextel Partners will be a "Related Party" of
Sprint under the Management Agreement any time after the Sprint-Nextel Merger
closes. Thus, this Section shall not be used in any proceeding in an attempt to
argue or prove whether Nextel Partners is or will be a "Related Party" of Sprint
under the Management Agreement.
ARTICLE II I
COVENANTS BY THE AFFILIATE
Section 3.1 Agreement Not to Sue. From and after the date hereof, so long
as this Agreement remains in effect, neither the Affiliate nor any of its
Subsidiaries or Related Parties will initiate any injunctive or equitable relief
against Sprint or Nextel or any of their Subsidiaries related to (i) the Sprint
Nextel Merger and actions taken or to be taken by Sprint and Nextel and their
Subsidiaries in connection therewith or (ii) conduct of the type restricted by
this Agreement
-8-
that is not prohibited by this Agreement (each, a "Prohibited Claim"); provided
that neither Sprint, Nextel, nor any of their Subsidiaries or Related Parties
asserts against the Affiliate or any of its Subsidiaries claims of any type
related to any Prohibited Claim. This Section does not limit or modify the
Affiliate's right to seek injunctive or other equitable relief as provided in
Section 4.6 or injunctive or other equitable relief for conduct other than of
the type specified in this Agreement, which conduct could reasonably be expected
to have a material effect on the business of the Affiliate. The Affiliate
further agrees, on behalf of itself and its Subsidiaries, that it will not seek
to enjoin the consummation of the Sprint Nextel Merger.
Section 3.2 Nonwaiver of Affiliate's Claims, Rights, and Remedies. Under
this Agreement, Affiliate does not waive, limit, or modify, in any respect,
Affiliate's rights to pursue any and all rights, claims, remedies, and damages
against Sprint and its Subsidiaries and Related Parties to the fullest extent
permissible by law after the end of the Term of this Agreement.
ARTICLE IV
TERMS OF GENERAL APPLICABILITY
Section 4.1 Term. Unless earlier terminated pursuant to Section 2.10(a),
2.10(d) or Section 4.2, this Agreement will terminate on January 1, 2006.
Section 4.2 Termination; Cure Period. At the election of the Affiliate,
this Agreement may be terminated upon the material breach by Sprint of this
Agreement if the breach is not cured within five (5) Business Days after
Sprint's receipt of written notice of the breach from the Affiliate.
Section 4.3 No Breach of the Management Agreement. This Agreement, and the
covenants of Sprint contained herein, do not constitute an admission by Sprint
that it has breached, or will breach, any provision of the Management Agreement,
nor does this Agreement, or any of its terms or provisions, constitute an
admission by Sprint or Nextel as to the scope of any party's rights or
obligations under the Management Agreement. Moreover, the provisions of this
Agreement are not intended in any way to constitute an admission by Sprint or
the Affiliate that any of its actions under this Agreement were necessary to
comply with or avoid any breach of the Management Agreement. This Agreement is
(a) being entered into for the purpose of resolving certain differences and
possible disputed claims between the parties and (b) entitled to all protections
afforded by any applicable rules of evidence analogous to Federal Rule of
Evidence 408.
Section 4.4 Confidential Information. Each of the covenants by Sprint
contained in Section 2.1 and Section 2.10(b) applies only to the extent the
information that is the subject of such section constitutes Confidential
Information that is and remains subject to the restrictions of Section 12.2 of
the Management Agreement, whether such Confidential Information is provided to
or generated by Sprint prior to or after the execution of this Agreement and the
completion of the Sprint Nextel Merger. This Agreement is subject to any limited
prior consents that the Affiliate may have granted to Sprint for the disclosure
of Confidential Information to certain specified third parties, such as
VirginMobile.
-9-
Section 4.5 Exceptions. Notwithstanding the restrictions contained in this
Agreement, Sprint may disclose financial and related information on a need to
know basis to employees outside the Affiliate Group to (a) analyze any proposed
amendment to any of the Management Agreement or any other transaction involving
the parties (a "Reaffiliation") and (b) fulfill the terms of the Management
Agreement and all related agreements between the parties ("Existing Agreement
Commitments"), except that such information will be used only to evaluate the
proposed Reaffiliation or to fulfill Existing Agreement Commitments, as the case
may be, and in each case will not be made available to any employee whose
function relates primarily to the strategic planning for the iDEN Network or
iDEN Products and Services, engineering or network operations for the iDEN
Network, or sale or marketing of iDEN Products and Services. In addition, the
restrictions contained in Section 2.1 will not restrict Sprint's use of
information to which Section 2.1 would otherwise apply solely to address
non-compliance by the Affiliate with the Management Agreement and related
agreements.
Section 4.6 Enforcement. Each party may pursue injunctive or other
equitable relief for breach of this Agreement, but shall not be entitled to seek
damages for breach of this Agreement. This Section will not limit or modify in
any respect Sprint's or the Affiliate's rights to pursue damages on any claim
for breach of any other contract or agreement, including but not limited to
breach of the Management Agreement.
Section 4.7 Tolling Of Claims. The parties agree that during this
Agreement, the running of time under any applicable statute of limitations which
may apply to any of Affiliate's claims, including, but not limited to any claims
arising under the Management Agreement, shall be tolled from the last date of
execution of this Agreement until the expiration of the Agreement and that such
period of time shall not be relied upon by Sprint or its Subsidiaries or Related
Parties in any claim of laches or as part of any other defense to any action
commenced by Affiliate.
ARTICLE V
MISCELLANEOUS
Section 5.1 General. Sections 17.2 (Construction), 17.4 (Further Action),
17.9.1 (Waivers--General), 17.13 (Severability), 17.18 (Disclaimer of Agency),
17.19 (Independent Contractors) and 17.21 (General Terms) of the Management
Agreement are incorporated into this Agreement mutatis mutandis.
-10-
Section 5.2 Notices.
(a) Any notice, payment, invoice, demand or communication required
or permitted to be given by any provision of this Agreement must be in writing
and mailed (certified or registered mail, postage prepaid, return receipt
requested), sent by hand or overnight courier, charges prepaid or sent by
facsimile (with acknowledgement received), and addressed as described below, or
to any other address or number as the person or entity may from time to time
specify by written notice to the other parties. All notices and other
communications given to a party in accordance with the provisions of this
Agreement will be deemed to have been given when received.
(b) For Sprint:
Sprint Corporation
6200 Sprint Parkway
Overland Park, KS 66251
Telecopier: (913) 523-9802
Attention: Charles R. Wunsch
Vice President Law, Corporate Transactions
with a copy to:
King & Spalding LLP
191 Peachtree Street
Atlanta, GA 30303
Telecopier: (404) 572-5100
Attention: Michael J. Egan
(c) For the Affiliate:
Shenandoah Personal Communications Company
500 Shentel Way
P.O. Box 459
Edinburg, VA 22824
Telecopier: (540) 984-8192
Attention: Jonathan R. Spencer
General Counsel
Section 5.3 Entire Agreement. This Agreement sets forth the entire
agreement and understanding between the parties as to the subject matter of this
Agreement and supersedes all prior agreements, oral or written, and other
communications between the parties relating to the subject matter of this
Agreement; provided that this Agreement is not intended to amend or affect in
any way the Management Agreement and any other agreements entered into in
connection with the Management Agreement.
Section 5.4 Binding Effect. Except as otherwise provided in this
Agreement, this Agreement is binding upon and inures to the benefit of the
parties and their respective and
-11-
permitted successors, transferees, and assigns, including any permitted
successor, transferee or assignee of the Service Area Network or of the License.
Section 5.5 Expense. Each party bears the expense of complying with this
Agreement.
Section 5.6 Governing Law, Jurisdiction and Consent to Service of Process.
(a) Governing Law. The internal laws of the State of Delaware
(without regard to principles of conflicts of law) govern the
validity of this Agreement, the construction of its terms, and the
interpretation of the rights and duties of the parties.
(b) Jurisdiction; Consent to Service of Process.
(i) Each party hereby irrevocably and unconditionally submits,
for itself and its property, to the sole and exclusive jurisdiction of any
state or federal court of the State of Delaware and any appellate court
from any such court, in any suit, action or proceeding arising out of or
relating to this Agreement, or for recognition or enforcement of any
judgment. Each party hereby irrevocably and unconditionally agrees that
all claims in respect of any such suit, action or proceeding may be heard
and determined in such Delaware court.
(ii) Each party hereby irrevocably and unconditionally waives,
to the fullest extent it may legally do so, any objection that it may now
or hereafter have to the laying of venue of any suit, action or proceeding
arising out of or relating to this Agreement in any state or federal court
in the State of Delaware. Each party hereby irrevocably waives, to the
fullest extent permitted by law, the defense of an inconvenient forum to
the maintenance of such suit, action or proceeding in any such court and
further waives the right to object, with respect to such suit, action or
proceeding, that such court does not have jurisdiction over such party.
-12-
Each party irrevocably consents to service of process in the manner
provided for the giving of notices pursuant to this Agreement, provided
that such service will be deemed to have been given only when actually
received by such party. Nothing in this Agreement will affect the right of
a party to serve process in another manner permitted by law.
Section 5.7 Waiver of Jury Trial.
(a) EACH PARTY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE
LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY ACTION, SUIT OR
PROCEEDING ARISING OUT OF THIS AGREEMENT, AND WHETHER MADE BY CLAIM, COUNTER
CLAIM, THIRD PARTY CLAIM OR OTHERWISE. This Section will not limit or modify in
any respect the rights, if any, a party may have to a jury trial in an action,
suit, or proceeding for breach of any other contract or agreement or for
tortious conduct or any statutory violation causing the breach of any other
contract or agreement, including but not limited the Management Agreement.
(b) The agreement of each party to waive its right to a jury trial
under this Section will be binding on its successors and assigns and will
survive the termination of this Agreement.
[Signatures follow on next page.]
-13-
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
by their respective officers as of the date first above written.
SPRINT CORPORATION
---------------------------
Name:
Title:
WIRELESSCO L.P.
---------------------------
Name:
Title:
SPRINT COMMUNICATIONS
COMPANY LP.
---------------------------
Name:
Title:
SPRINT TELEPHONY PCS, L.P.
---------------------------
Name:
Title:
SPRINT SPECTRUM L.P.
---------------------------
Name:
Title:
SPRINT PCS LICENSE, L.L.C.
---------------------------
Name:
Title:
APC PCS, L.L.C.
---------------------------
Name:
Title:
PHILLIE CO, L.P
---------------------------
Name:
Title:
SHENANDOAH PERSONAL
COMMUNICATIONS COMPANY
---------------------------
Name: Christopher E. French
Title: President