COMPARISON OF STOCKHOLDERS’ RIGHTS
Both T-Mobile and Sprint are incorporated under the laws of the State of Delaware, and, accordingly, the rights of the stockholders of each company are currently governed by the DGCL. T-Mobile, as the combined company, will continue to be a Delaware corporation following the completion of the merger transactions.
Upon completion of the merger transactions, the former Sprint stockholders will receive shares of T-Mobile common stock, and T-Mobile stockholders will continue to hold shares of T-Mobile common stock, which will be the common stock of the combined company. The rights of the stockholders of the combined company will thereafter be governed by the DGCL and by the combined company certificate of incorporation and the bylaws of the combined company.
The following description summarizes the material differences between the rights of the stockholders of Sprint and T-Mobile based on the governing documents of Sprint and T-Mobile that are currently in effect and the rights of stockholders of T-Mobile, as the combined company, based on the certificate of incorporation and bylaws of the combined company that will be adopted in connection with the completion of the merger, as well as the DGCL. However, the following description is not a complete statement of all those differences, or a complete description of the specific provisions referred to in this summary. We encourage you to read carefully the relevant provisions of the DGCL and the respective certificates of incorporation and bylaws of the combined company, T-Mobile and Sprint. For more information on how to obtain certain documents that are not attached to this consent solicitation statement/prospectus, see “Where You Can Find More Information.”
| Rights of Stockholders of the |
Rights of Current Stockholders of T-Mobile |
Rights of Current Stockholders of Sprint | ||||
| Authorized Capital Stock |
The authorized capital stock of the combined company consists of 2,000,000,000 shares of common stock, par value $0.00001 per share, and 100,000,000 shares of preferred stock, par value $0.00001 per share.
The combined company certificate of incorporation provides that if a holder of T-Mobile common stock acquires additional shares of T-Mobile common stock or otherwise is attributed with ownership of such shares that would cause the combined company to violate FCC rules, T-Mobile may, at the option of the T-Mobile board of directors, redeem from the holder or holders causing the violation of the FCC’s rules shares of common stock |
The authorized capital stock of T-Mobile consists of 1,000,000,000 shares of common stock, par value $0.00001 per share, and 100,000,000 shares of preferred stock, par value $0.00001 per share.
The T-Mobile certificate of incorporation provides that if a holder of T-Mobile common stock acquires additional shares of T-Mobile common stock or otherwise is attributed with ownership of such shares that would cause T-Mobile to violate FCC rules, T-Mobile may, at the option of the T-Mobile board of directors, redeem from the holder or holders causing the violation of the FCC’s rules shares of T-Mobile common stock |
The authorized capital stock of Sprint consists of 9,000,000,000 shares of common stock, par value $0.01 per share, 1,000,000,000 shares of non-voting common stock, par value $0.01 per share and 20,000,000 shares of preferred stock, par value $0.0001 per share.
The Sprint certificate of incorporation permits, by action of the Sprint board of directors and at least a majority of the independent directors, the redemption by Sprint of shares of Sprint capital stock held by aliens in its sole discretion. The provisions permit capital stock to be redeemed at a price in cash mutually agreed between Sprint and the holders of the capital stock subject to redemption. If no mutually acceptable |
| Rights of Stockholders of the |
Rights of Current Stockholders of T-Mobile |
Rights of Current Stockholders of Sprint | ||||
| sufficient to eliminate the violation by paying an amount in cash equal to the redemption price. The redemption price will be a price mutually determined by T-Mobile and such stockholders, but if no agreement can be reached, the redemption price will be either 75% of the fair market value of T-Mobile common stock being redeemed (if the holder caused the FCC violation) or 100% of the fair market value of the T-Mobile common stock being redeemed (if the FCC violation was not caused by the holder). The foregoing redemption rights do not apply to any shares of T-Mobile common stock beneficially owned by Deutsche Telekom or SoftBank or any of their subsidiaries. | sufficient to eliminate the violation by paying an amount in cash equal to the redemption price. The redemption price will be a price mutually determined by T-Mobile and such stockholders, but if no agreement can be reached, the redemption price will be either 75% of the fair market value of T-Mobile common stock being redeemed (if the holder caused the FCC violation) or 100% of the fair market value of the T-Mobile common stock being redeemed (if the FCC violation was not caused by the holder). The foregoing redemption rights do not apply to any shares of T-Mobile common stock beneficially owned by Deutsche Telekom or any of its subsidiaries. | agreement can be reached, the stock will be redeemed at the fair market value, which (i) for publicly traded securities, will be determined on the trading price of the security over the 30-day period ending three days prior to the date of redemption and (ii) for all non-publicly traded securities, will be determined in good faith by the disinterested and independent members of the Sprint board of directors. | ||||
| Preferred Stock |
The combined company certificate of incorporation provides that the T-Mobile board of directors may authorize the issuance of preferred stock in one or more series and fix by resolution the voting powers, designations, preferences and relative, participating, optional or other special rights, if any, and the qualifications, limitations or restrictions thereof, if any, of each series. | The T-Mobile certificate of incorporation provides that the T-Mobile board of directors may authorize the issuance of preferred stock in one or more series and fix by resolution the voting powers, designations, preferences and relative, participating, optional or other special rights, if any, and the qualifications, limitations or restrictions thereof, if any, of each series. | The Sprint certificate of incorporation provides that the Sprint board may authorize the issuance of shares of preferred stock in one or more series and fix by resolution the voting powers (full or limited, if any) and the designations, preferences, and relative, participating, optional or other special rights, and qualifications, limitations or restrictions of each series. | |||
| Dividends and Share Repurchases |
The DGCL provides that, subject to any restrictions in a corporation’s certificate of incorporation, dividends may be declared from the corporation’s surplus, or if there is no surplus, from its net profits for the fiscal year in which the dividend is declared and for the preceding fiscal year. Dividends may not be declared out of net profits, however, if the corporation’s capital has been diminished to an amount less than the aggregate amount of all capital represented by the issued and outstanding stock of all classes having a preference | |||||
| Rights of Stockholders of the |
Rights of Current Stockholders of T-Mobile |
Rights of Current Stockholders of Sprint | ||||
| upon the distribution of assets until the deficiency in the amount of capital represented by the issued and outstanding stock of all classes having a preference upon the distribution of assets is repaired. Furthermore, the DGCL generally provides that a corporation may redeem or repurchase its shares only if the redemption or repurchase would not impair the capital of the corporation. | ||||||
| The combined company certificate of incorporation provides that the holders of common stock are entitled to receive, when and as declared by the T-Mobile board of directors, out of any assets of the corporation legally available therefor, such dividends, distributed ratably among the holders of the common stock in proportion to the number of shares of such common stock owned by each holder, as may be declared from time to time by the board. | The T-Mobile certificate of incorporation provides that the holders of common stock are entitled to receive, when and as declared by the T-Mobile board of directors, out of any assets of the corporation legally available therefor, such dividends, distributed ratably among the holders of the common stock in proportion to the number of shares of such common stock owned by each holder, as may be declared from time to time by the board. | The Sprint certificate of incorporation provides that the Sprint board of directors has the power to fix the times for the declaration and payment of dividends. | ||||
| Preemptive Rights |
Pursuant to the amended and restated stockholders’ agreement, in the event that Deutsche Telekom’s voting percentage would be reduced to less than 30%, or SoftBank’s voting percentage would be reduced to less than 22.5%, in each case as a direct result of a proposed issuance by the combined company of any equity or equity-linked securities or other voting securities in a public or private offering, regardless of the number of purchasers, in exchange for cash (which we refer to as a “dilutive issuance”), Deutsche Telekom or SoftBank, as applicable, will have the right to acquire newly issued voting securities issued directly from the combined company, either as part of the dilutive |
T-Mobile stockholders do not have preemptive rights. Thus, if additional shares of T-Mobile common stock are issued, the current holders of T-Mobile common stock will own a proportionately smaller interest in a larger number of outstanding shares of common stock to the extent that they do not participate in the additional issuance. | Sprint stockholders do not have preemptive rights. Thus, if additional shares of Sprint common stock are issued, the current holders of Sprint common stock will own a proportionately smaller interest in a larger number of outstanding shares of common stock to the extent that they do not participate in the additional issuance. | |||
| Rights of Stockholders of the |
Rights of Current Stockholders of T-Mobile |
Rights of Current Stockholders of Sprint | ||||
| issuance or otherwise as determined mutually by the combined company and Deutsche Telekom or SoftBank, as applicable, up to an amount that would cause Deutsche Telekom’s voting percentage or SoftBank’s voting percentage, as applicable, to equal its voting percentage immediately prior to the dilutive issuance (which we refer to as the “top up right”), in accordance with the terms of the amended and restated stockholders’ agreement, as described in “Stockholders’ and Proxy Agreements—Amended and Restated Stockholders’ Agreement—Top Up Right.”
Other than the aforementioned top up right, stockholders of the combined company do not have preemptive rights. Thus, if additional shares of T-Mobile common stock are issued, the current holders of T-Mobile common stock will own a proportionately smaller interest in a larger number of outstanding shares of common stock to the extent that they do not participate in the additional issuance. |
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| Special Meetings of Stockholders |
Under the DGCL, a special meeting of stockholders may be called by the board of directors or by any other person authorized to do so in the certificate of incorporation or bylaws. | |||||
| The combined company certificate of incorporation provides that special meetings of stockholders may be called by the chairperson of the T-Mobile board of directors or the chief executive officer and will be | The T-Mobile certificate of incorporation provides that special meetings of stockholders may be called by the chairperson of the T-Mobile board of directors or the chief executive officer and will be called by the | The bylaws of Sprint provide that special meetings of stockholders may be called only by or at the direction of the Sprint board of directors, pursuant to a resolution adopted by a majority of the Sprint board. | ||||
| Rights of Stockholders of the |
Rights of Current Stockholders of T-Mobile |
Rights of Current Stockholders of Sprint | ||||
| called by the secretary of the corporation at the request of (i) a majority of the T-Mobile board of directors or (ii) for so long as Deutsche Telekom’s voting percentage is 25% or greater, the holders of not less than 33-1/3% of the voting power of all of the outstanding voting stock of the corporation entitled to vote generally in the election of directors, which request must be in writing, state the purpose or purposes of the proposed meeting and include all of the information required to be delivered pursuant to the notice requirements set forth in the bylaws of the combined company in order for nominations or business, as applicable, to be properly brought before a meeting by a stockholder. | secretary of the corporation at the request of (i) a majority of the T-Mobile board of directors or (ii) for so long as Deutsche Telekom’s voting percentage is 25% or greater, the holders of not less than 33-1/3% of the voting power of all of the outstanding voting stock of the corporation entitled to vote generally in the election of directors, which request must be in writing, state the purpose or purposes of the proposed meeting and include all of the information required to be delivered pursuant to the notice requirements set forth in the bylaws of T-Mobile in order for nominations or business, as applicable, to be properly brought before a meeting by a stockholder. | |||||
| Special Meetings of the Board |
The bylaws of the combined company provide that special meetings of the T-Mobile board of directors may be called by the chairperson of the board or the chief executive officer and will be called by the secretary upon written request of a majority of the directors. | The bylaws of T-Mobile provide that special meetings of the T-Mobile board of directors may be called by the chairman, the vice chairman or the chief executive officer and will be called by the chairman, the vice chairman, the chief executive officer or the secretary upon written request of the majority of the directors. | The bylaws of Sprint provide that special meetings of the Sprint board of directors will be held whenever called by the chairman of the Sprint board of directors and will be called by the chief executive officer or the secretary at the written request of any two directors then in office. | |||
| Stockholder Action by Written Consent |
Under the DGCL, any action that can be taken at any annual or special meeting of stockholders of a corporation may also be taken by stockholders without a meeting, without prior notice and without a vote unless the certificate of incorporation provides otherwise. | |||||
| The combined company certificate of incorporation provides that, for so long as Deutsche Telekom’s voting | The T-Mobile certificate of incorporation provides that, for so long as Deutsche Telekom’s voting percentage | The bylaws of Sprint provide that any action required to be taken at any meeting of stockholders may be taken | ||||
| Rights of Stockholders of the |
Rights of Current Stockholders of T-Mobile |
Rights of Current Stockholders of Sprint | ||||
| percentage (as defined in the amended and restated stockholders’ agreement) is 25% or greater, any action required or permitted to be taken at any annual or special meeting of stockholders may be taken without a meeting, without prior notice and without a vote, if a consent or consents in writing setting forth the action so taken will be signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted. If at any time Deutsche Telekom’s voting percentage is less than 25%, the stockholders’ ability to act by written consent will forever terminate and thereafter the stockholders may not take action by written consent. | (as defined in the stockholder’s agreement) is 25% or greater, any action required or permitted to be taken at any annual or special meeting of stockholders may be taken without a meeting, without prior notice and without a vote, if a consent or consents in writing setting forth the action so taken will be signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted. If at any time Deutsche Telekom’s voting percentage is less than 25%, the stockholders’ ability to act by written consent will forever terminate and thereafter the stockholders may not take action by written consent. | without a meeting, without prior notice, and without a vote, if a consent or consents in writing setting forth the action so taken, will be signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted. | ||||
| Stockholder Proposals and Nominations of Candidates for Election to the Board of Directors |
The bylaws of the combined company allow stockholders who are record holders on the date of notice and, at the time of an annual meeting or special meeting, as applicable, who are entitled to vote at the meeting and who timely gave notice in writing to the secretary prior to the meeting, to nominate candidates for election to the T-Mobile board of directors. Stockholders who are record holders on the date of notice and, at the time of an annual meeting, who are entitled to vote at the meeting and who timely gave notice in writing to the secretary prior to the | The bylaws of T-Mobile allow stockholders who are record holders on the date of notice and, at the time of an annual meeting or special meeting, as applicable, who are entitled to vote at the meeting and who timely gave notice in writing to the secretary prior to the meeting, to nominate candidates for election to the T-Mobile board of directors. Stockholders who are record holders on the date of notice and, at the time of an annual meeting, who are entitled to vote at the meeting and who timely gave notice in writing to the secretary prior to the | The bylaws of Sprint allow stockholders who are record holders on the date of notice and on the record date for the determination of stockholders entitled to vote at the meeting and who are entitled to vote at the meeting upon such election of directors or upon such business, as the case may be, to nominate persons for election to the Sprint board and propose business to be considered by the stockholders at an annual meeting.
Such proposals (other than proposals included in the | |||
| Rights of Stockholders of the |
Rights of Current Stockholders of T-Mobile |
Rights of Current Stockholders of Sprint | ||||
| meeting may also propose business to be considered by stockholders at an annual or special meeting.
Such proposals (other than proposals included in the notice of meeting pursuant to Rule 14a-8 promulgated under the Exchange Act) and nominations, however, may only be brought in accordance with the applicable provision of the combined company’s bylaws and certificate of incorporation.
In connection with an annual meeting, to be timely, notice of such proposals and nominations must be received by the secretary at T-Mobile’s principal executive office not earlier than the close of business on the 120th day and not later than the close of business on the 90th day prior to the first anniversary of the preceding year’s annual meeting; provided that in the event that the date of the annual meeting is more than 30 days before or more than 60 days after such anniversary date, notice by the stockholder received by the secretary not earlier than the close of business on the 120th day prior to the date of the annual meeting and not later than the close of business on the later of the 90th day prior to the date of the annual meeting or the 10th day following the day on which public announcement of the date of the meeting is first made by T-Mobile. |
meeting may also propose business to be considered by stockholders at an annual or special meeting.
Such proposals (other than proposals included in the notice of meeting pursuant to Rule 14a-8 promulgated under the Exchange Act) and nominations, however, may only be brought in accordance with the applicable provision of T-Mobile’s bylaws and certificate of incorporation.
In connection with an annual meeting, to be timely, notice of such proposals and nominations must be received by the secretary at T-Mobile’s principal executive office not earlier than the close of business on the 120th day and not later than the close of business on the 90th day prior to the first anniversary of the preceding year’s annual meeting; provided that in the event that the date of the annual meeting is more than 30 days before or more than 60 days after such anniversary date, notice by the stockholder must be received by the secretary not earlier than the close of business on the 120th day prior to the date of the annual meeting and not later than the close of business on the later of the 90th day prior to the date of the annual meeting or the 10th day following the day on which public announcement of the date of the meeting is first made by T-Mobile. |
notice of meeting pursuant to Rule 14a-8 promulgated under the Exchange Act) and nominations, however, may only be brought by a stockholder who has given timely notice in proper written form to Sprint’s secretary prior to the meeting.
In connection with an annual meeting, to be timely, notice of such proposals and nominations must be delivered to, or mailed to and received by, the secretary at Sprint’s principal executive office not earlier than the close of business on the 120th day and not later than the close of business on the 90th day prior to the first anniversary of the preceding year’s annual meeting; provided that in the event that the date of the annual meeting is more than 30 days before or more than 60 days after such anniversary date, notice by the stockholder must be delivered, or mailed and received, not earlier than the close of business on the 120th day prior to the date of the annual meeting and not later than the close of business on the later of the 90th day prior to the date of the annual meeting or the 10th day following the day on which public announcement of the date of the meeting is first made by Sprint. |
| Rights of Stockholders of the |
Rights of Current Stockholders of T-Mobile |
Rights of Current Stockholders of Sprint | ||||
| Notwithstanding the foregoing, the combined company certificate of incorporation incorporates by reference the applicable provisions of the amended and restated stockholders’ agreement, which provides each of Deutsche Telekom and SoftBank with rights to designate for nomination for election as directors individuals selected by such stockholder, subject to such individuals satisfying certain requirements. Upon completion of the merger transactions, the combined company board of directors will consist of 14 directors, including nine directors designated by Deutsche Telekom, four directors designated by SoftBank and the chief executive officer of the combined company. See “Stockholders’ and Proxy Agreements—Amended and Restated Stockholders’ Agreement.” |
Notwithstanding the foregoing, the T-Mobile certificate of incorporation provides Deutsche Telekom with the right to designate for nomination for election as directors a number of individuals equal to the proportion of the number of persons serving on the whole board represented by the ratio of number of votes entitled to be cast in the election of directors by the voting securities beneficially owned by Deutsche Telekom to the aggregate votes entitled to be cast by all then-outstanding voting securities, subject to such individuals satisfying certain requirements, as long as such ratio equals 10% or greater. |
The bylaws of Sprint provide that at all times until such time as the combined voting interest of SoftBank and its controlled affiliates in Sprint falls below 50% and remains below 50% for 90 consecutive days, the Sprint board of directors will include not fewer than three (or such greater number as may be required by applicable law or listing rules) individuals who qualify as “Independent Directors” (as such term is defined in the NYSE listing rules). If the combined voting interest of SoftBank and its controlled affiliates in Sprint remains below 50% for 90 consecutive days, then the board composition requirements described above will no longer apply. Thereafter, unless and until the combined voting interest of SoftBank and its controlled affiliates in Sprint remains below 10% for 90 consecutive days, the Sprint board of directors will include a number of individuals nominated by SoftBank or its controlled affiliate that is proportional to the combined voting interest of SoftBank and its controlled affiliates in Sprint, rounded up to the nearest whole number. | ||||
| Number of Directors |
The DGCL provides that the board of directors of a Delaware corporation must consist of one or more directors, each of whom must be a natural person, with the number of directors fixed by or in the manner provided in the corporation’s bylaws unless the certificate of incorporation fixes the number of directors. | |||||
| Rights of Stockholders of the |
Rights of Current Stockholders of T-Mobile |
Rights of Current Stockholders of Sprint | ||||
| Subject to the amended and restated stockholders’ agreement (see “Stockholders’ and Proxy Agreements—Amended and Restated Stockholders’ Agreement”), the combined company certificate of incorporation and the bylaws of the combined company provide that the number of directors will be determined by resolution of the T-Mobile board of directors; provided that no decrease in the number of directors will have the effect of shortening the term of an incumbent director.
Upon the closing of the merger, it is anticipated that there will be 14 directors serving on the combined company’s board. |
The T-Mobile certificate of incorporation and the bylaws of T-Mobile provide that the number of directors will be determined by resolution of the T-Mobile board of directors; provided that no decrease in the number of directors will have the effect of shortening the term of an incumbent director.
There are currently 12 directors serving on the T-Mobile board of directors. |
The Sprint certificate of incorporation and the bylaws of Sprint provide that the Sprint board of directors will consist of ten directors, subject to other provisions of the bylaws.
There are currently ten directors serving on the Sprint board of directors. | ||||
| Election of Directors |
The DGCL provides that, unless the certificate of incorporation or bylaws provide otherwise, directors will be elected by a plurality of the votes of the shares present in person or represented by proxy at the meeting and entitled to vote on the election of directors. The DGCL also permits classified boards. | |||||
| The combined company certificate of incorporation provides that the directors are to be elected annually and the T-Mobile board is not classified.
The combined company’s bylaws provide that directors are to be elected by a plurality of votes cast. |
The T-Mobile certificate of incorporation provides that the directors are to be elected annually and the T-Mobile board is not classified.
T-Mobile’s bylaws provide that directors are elected by a plurality of votes cast. |
The Sprint certificate of incorporation and bylaws does not specify that the Sprint board of directors is classified. Under the DGCL default rule, the directors of the Sprint board of directors are to be elected annually.
Sprint’s directors are elected by a plurality in voting power of the shares present in person or represented by proxy at a meeting of the stockholders entitled to vote in the election of directors. | ||||
| Rights of Stockholders of the |
Rights of Current Stockholders of T-Mobile |
Rights of Current Stockholders of Sprint | ||||
| Removal of Directors |
The combined company certificate of incorporation provides that, subject to the applicable provisions of the amended and restated stockholders’ agreement, any director or the entire board of directors may be removed, with or without cause, by the holders of a majority of shares entitled to vote at an election of directors at any meeting of stockholders or any adjournment thereof or by action taken by the stockholders by written consent without a meeting. The amended and restated stockholders’ agreement provides that upon the removal (with or without cause) from office of a director designated by Deutsche Telekom or SoftBank at a time when such stockholder has the right under the amended and restated stockholders’ agreement to designate a replacement designee, such stockholder will be entitled promptly to designate a replacement designee. | The T-Mobile certificate of incorporation provides that any director or the entire board of directors may be removed, with or without cause, by the holders of a majority of shares entitled to vote at an election of directors at any meeting of stockholders or any adjournment thereof or by action taken by the stockholders by written consent without a meeting; provided that no Deutsche Telekom designee may be removed without the prior written consent of Deutsche Telekom. | The Sprint certificate of incorporation and bylaws of Sprint provide that (i) any director or the entire board of directors may be removed, with or without cause, by the holders of capital stock having a majority in voting power of the then-outstanding shares entitled to vote in the election of directors and (ii) any SoftBank designee may be removed, with or without cause, by SoftBank upon written notice to the Sprint board of directors. | |||
| Vacancies of Directors |
The bylaws of the combined company provide that vacancies may be filled by a majority of the T-Mobile directors then in office, though less than a quorum, or by the sole remaining director. Additionally, the T-Mobile certificate of incorporation incorporates by reference the applicable provisions of the amended and restated stockholders’ agreement, which provides that Deutsche Telekom and SoftBank will be entitled to | The bylaws of T-Mobile provide that vacancies may be filled by a majority of the T-Mobile directors then in office, though less than a quorum, or by the sole remaining director. Additionally, the T-Mobile certificate of incorporation provides that Deutsche Telekom will be entitled to fill any vacancy resulting from any Deutsche Telekom designee ceasing to serve as a director at a time when Deutsche Telekom has the | The bylaws of Sprint provide that vacancies, howsoever resulting, prior to SoftBank’s voting interest falling and remaining below 50% for 90 consecutive days, will only be filled by (i) a special committee of the board of directors formed to fill any such vacancy or (ii) the affirmative vote of the stockholders holding record capital stock of Sprint representing at least a majority of the voting power of the then-outstanding | |||
| Rights of Stockholders of the |
Rights of Current Stockholders of T-Mobile |
Rights of Current Stockholders of Sprint | ||||
| fill any vacancy resulting from any designee of such stockholder ceasing to serve as a director at a time when such stockholder has the right to designate a replacement designee. | right to designate a replacement designee. | shares of the capital stock of Sprint entitled to vote in the election of directors. After the first occurrence of SoftBank’s voting interest falling and remaining below 50% for 90 consecutive days, vacancies will only be filled by the affirmative vote of a majority of the remaining directors then in office, even if less than a quorum, or by the sole remaining director. | ||||
| Limitation on Liability of Directors |
The DGCL permits corporations to include provisions in their certificate of incorporation eliminating monetary damages for a director for any breach of fiduciary duty. A corporation may not eliminate liability for a director’s breach of the duty of loyalty to the corporation or its stockholders, for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, for unlawful dividends, stock purchases or redemptions, or for any transaction from which the director derived an improper personal benefit. | |||||
| In accordance with the DGCL, the combined company certificate of incorporation provides that no director will be personally liable to T-Mobile or its stockholders for monetary damages for breach of fiduciary duty as a director, except for liability (1) for any breach of the director’s duty of loyalty to T-Mobile or its stockholders, (2) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (3) under Section 174 of the DGCL, as the same exists or hereafter may be amended or replaced, or (4) for any transaction from which the director derived any improper personal benefit. | In accordance with the DGCL, the T-Mobile certificate of incorporation provides that no director will be personally liable to T-Mobile or its stockholders for monetary damages for breach of fiduciary duty as a director, except for liability (1) for any breach of the director’s duty of loyalty to T-Mobile or its stockholders, (2) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (3) under Section 174 of the DGCL, as the same exists or hereafter may be amended or replaced, or (4) for any transaction from which the director derived any improper personal benefit. | In accordance with the DGCL, the Sprint certificate of incorporation provides that no director will be personally liable to Sprint or its stockholders for monetary damages for breach of fiduciary duty as a director, for any act or omission, except that a director may be liable for (1) for breach of the director’s duty of loyalty to Sprint or its stockholders, (2) for acts or omissions not in good faith or that involve intentional misconduct or a knowing violation of law, (3) under Section 174 of the DGCL, or (4) for any transaction from which the director derived an improper personal benefit. | ||||
| Rights of Stockholders of the |
Rights of Current Stockholders of T-Mobile |
Rights of Current Stockholders of Sprint | ||||
| Indemnification of Directors and Officers |
Under the DGCL, a Delaware corporation must indemnify its present or former directors and officers against expenses (including attorneys’ fees) actually and reasonably incurred to the extent that the officer or director has been successful on the merits or otherwise in defense of any action, suit or proceeding brought against him or her by reason of the fact that he or she is or was a director or officer of the corporation.
Delaware law provides that a corporation may indemnify its present and former directors, officers, employees and agents, as well as any individual serving with another corporation in that capacity at the corporation’s request against expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement of actions taken, if the individual acted in good faith and in a manner reasonably believed to be in, or not opposed to, the best interests of the corporation and, in the case of a criminal proceeding, the individual had no reasonable cause to believe the individual’s conduct was unlawful. However, no indemnification may be paid for judgments and settlements in actions by or in the right of the corporation.
A corporation may not indemnify a current or former director or officer of the corporation against expenses to the extent the person is adjudged to be liable to the corporation unless a court approves the indemnity.
The DGCL permits a corporation to purchase and maintain insurance on behalf of any person who is or was a director, officer, employee or agent of a corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise against any liability asserted against such person and incurred by such person in any such capacity, or arising out of such person’s status as such. | |||||
| The combined company certificate of incorporation provides that T-Mobile will, to the fullest extent permitted by the DGCL, indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding whether civil, criminal, administrative or investigative by reason of the fact that he or she is or was a director, manager, member, officer, employee or agent of T-Mobile, or is or was serving at the request of T-Mobile as a director, manager, member, officer, employee or agent of another corporation, partnership, limited liability company, | The T-Mobile certificate of incorporation provides that T-Mobile will, to the fullest extent permitted by the DGCL, indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding whether civil, criminal, administrative or investigative by reason of the fact that he or she is or was a director, manager, member, officer, employee or agent of T-Mobile, or is or was serving at the request of T-Mobile as a director, manager, member, officer, employee or agent of another corporation, partnership, limited liability company, | The bylaws of Sprint provide that Sprint will indemnify, to the full extent that it will have power under applicable law to do so and in a manner permitted by such law, any person who is made or threatened to be made a party to or is otherwise involved (as a witness or otherwise) in any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (hereinafter, a “Proceeding”), by reason of the fact that such person is or was a director or officer of Sprint, or while serving as a director or officer of Sprint, is or was serving at the request of Sprint as a | ||||
| Rights of Stockholders of the |
Rights of Current Stockholders of T-Mobile |
Rights of Current Stockholders of Sprint | ||||
| joint venture, trust or other enterprise, against expenses (including attorneys’ fees), judgments, liabilities, losses, fines and amounts paid in settlement actually and reasonably incurred by him in connection with such action, suit or proceeding. | joint venture, trust or other enterprise, against expenses (including attorneys’ fees), judgments, liabilities, losses, fines and amounts paid in settlement actually and reasonably incurred by him in connection with such action, suit or proceeding. | director, officer, employee, or agent of another corporation, partnership, joint venture, trust, or other enterprise, including service with respect to an employee benefit plan (collectively, “Another Enterprise”), against expenses (including attorneys’ fees), judgments, fines (including ERISA excise taxes or penalties) and amounts paid in settlement actually and reasonably incurred by him or her in connection with such Proceeding if he or she acted in good faith and in a manner he or she reasonably believed to be in or not opposed to the best interests of Sprint, and, with respect to any criminal action or proceeding, had no reasonable cause to believe his or her conduct was unlawful.
Sprint may indemnify, to the fullest extent that it will have power under applicable law to do so and in a manner permitted by such law, any person who is made or threatened to be made a party to or is otherwise involved (as a witness or otherwise) in any threatened, pending or completed Proceeding, by reason of the fact that such person is or was an employee or agent of Sprint, or while not serving as a director or officer of Sprint, is or was serving at the request of Sprint as a director, officer, employee or agent of Another Enterprise, against expenses (including attorneys’ fees), judgments, fines (including ERISA |
| Rights of Stockholders of the |
Rights of Current Stockholders of T-Mobile |
Rights of Current Stockholders of Sprint | ||||
| Any indemnification under the certificate of incorporation will be made by T-Mobile only as authorized in the specific case upon a determination that indemnification of the director, officer, employee or agent is proper in the circumstances because he or she has met the applicable standard of conduct set forth in the DGCL. Such determination will be made (1) by the T-Mobile board of directors by a majority vote of a quorum consisting of directors who were not parties to such action, suit or proceeding, or (2) if such a quorum is not obtainable, or, even if obtainable, a quorum of disinterested directors so directs, by independent legal counsel in a written opinion, or (3) by the T-Mobile stockholders. | Any indemnification under the certificate of incorporation will be made by T-Mobile only as authorized in the specific case upon a determination that indemnification of the director, officer, employee or agent is proper in the circumstances because he or she has met the applicable standard of conduct set forth in the DGCL. Such determination will be made (1) by the T-Mobile board of directors by a majority vote of a quorum consisting of directors who were not parties to such action, suit or proceeding, or (2) if such a quorum is not obtainable, or, even if obtainable, a quorum of disinterested directors so directs, by independent legal counsel in a written opinion, or (3) by the T-Mobile stockholders. | excise taxes or penalties) and amounts paid in settlement actually and reasonably incurred by him or her in connection with such Proceeding if he or she acted in good faith and in a manner he or she reasonably believed to be in or not opposed to the best interests of Sprint, and, with respect to any criminal action or proceeding, had no reasonable cause to believe his or her conduct was unlawful.
Any indemnification required or permitted under Sprint’s bylaws (unless ordered by a court) will be made by Sprint only as authorized in the specific case upon a determination that indemnification of the present or former director, officer, employee or agent is proper in the circumstances because he or she has met all applicable standards of conduct set forth in Sprint’s bylaws and Section 145 of the DGCL. Such determination will be made, with respect to a person who is a director or officer of Sprint at the time of such determination: (1) by a majority vote of the directors who are not parties to such Proceeding, even though less than a quorum; (2) by a committee of such directors designated by majority vote of such directors, even though less than a quorum; (3) if there are no such directors, or if such directors so direct, by independent legal counsel in a written opinion; or (4) by the |
| Rights of Stockholders of the |
Rights of Current Stockholders of T-Mobile |
Rights of Current Stockholders of Sprint | ||||
| To the extent that a director, manager, member, officer, employee or agent of T-Mobile has been successful on the merits or otherwise in defense of any action, suit or proceeding referred to in the previous sentence, or in defense of any claim, issue or matter therein, he or she will be indemnified against expenses (including attorneys’ fees) actually and reasonably incurred by him in connection therewith.
The combined company may purchase and maintain insurance on behalf of any person who is or was a director, officer, manager, employee or agent of T-Mobile, or is or was serving at the request of T-Mobile as a director, officer, manager, member, employee or agent of another corporation, partnership, limited liability company, joint venture, trust or other enterprise against any |
To the extent that a director, manager, member, officer, employee or agent of T-Mobile has been successful on the merits or otherwise in defense of any action, suit or proceeding referred to in the previous sentence, or in defense of any claim, issue or matter therein, he or she will be indemnified against expenses (including attorneys’ fees) actually and reasonably incurred by him in connection therewith.
T-Mobile may purchase and maintain insurance on behalf of any person who is or was a director, officer, manager, employee or agent of T-Mobile, or is or was serving at the request of T-Mobile as a director, officer, manager, member, employee or agent of another corporation, partnership, limited liability company, joint venture, trust or other enterprise against any liability asserted against him |
stockholders. Such determination will be made, with respect to any person who is not a director or officer of Sprint at the time of such determination, in the manner determined by the Sprint board of directors (including in such manner as may be set forth in any general or specific action of the board of directors applicable to indemnification claims by such person) or in the manner set forth in any agreement to which such person and Sprint are parties.
To the extent that a present or former director or officer of Sprint has been successful on the merits or otherwise in defense of any threatened, pending or completed Proceeding referred to in Section 145(a) or (b) of the DGCL, or in defense of any claim, issue or matter therein, he or she will be indemnified against expenses (including attorneys’ fees) actually and reasonably incurred by him or her in connection therewith.
Sprint may purchase and maintain insurance on behalf of any person who is or was a director, officer, employee or agent of Sprint, or is or was serving at the request of Sprint as a director, officer, employee or agent of Another Enterprise against any liability asserted against such person and incurred by such person in any such capacity, or arising out of such person’s status as such, whether or not Sprint would |
| Rights of Stockholders of the |
Rights of Current Stockholders of T-Mobile |
Rights of Current Stockholders of Sprint | ||||
| liability asserted against him and incurred by him in any such capacity, or arising out of his status as such, whether or not T-Mobile would have the power to indemnify him against such liability under the provisions of Section 145 of the DGCL. | and incurred by him in any such capacity, or arising out of his status as such, whether or not T-Mobile would have the power to indemnify him against such liability under the provisions of Section 145 of the DGCL. | have the power to indemnify such person against such liability under the provisions of Sprint’s bylaws or otherwise. | ||||
| Amendments to Certificate of Incorporation |
Under the DGCL, an amendment to the certificate of incorporation generally requires (1) the approval of the board of directors, (2) the approval of a majority of the voting power of the outstanding stock entitled to vote upon the proposed amendment and (3) the approval of the holders of a majority of the outstanding stock of each class entitled to vote thereon as a class, if any. | |||||
| The combined company certificate of incorporation provides that the affirmative vote of the holders of record of outstanding shares representing at least 75% of the voting power of all of the shares of capital stock of T-Mobile then entitled to vote generally in the election of the T-Mobile board of directors, voting together as a single class, will be required to amend, alter, change, repeal or adopt any provision or provisions inconsistent with, article IX (indemnification) and article XI (amendments to the certificate of incorporation) of the certificate of incorporation unless such amendment, alteration, change, repeal or adoption of any inconsistent provision or provisions is adopted or authorized by the T-Mobile board of directors by the affirmative vote of at least 75% of all of the members of the T-Mobile board of directors. | The T-Mobile certificate of incorporation provides that the affirmative vote of the holders of record of outstanding shares representing at least 75% of the voting power of all of the shares of capital stock of T-Mobile then entitled to vote generally in the election of the T-Mobile board of directors, voting together as a single class, will be required to amend, alter, change, repeal or adopt any provision or provisions inconsistent with, article IX (indemnification) and article XI (amendments to the certificate of incorporation) of the certificate of incorporation unless such amendment, alteration, change, repeal or adoption of any inconsistent provision or provisions is adopted or authorized by the T-Mobile board of directors by the affirmative vote of at least 75% of all of the members of the T-Mobile board of directors. | The Sprint certificate of incorporation provides that: (1) Sections 11.1 and 11.2(a) (amendment of bylaws) and Article VI (relationship with SoftBank) and Article VII (transactions with SoftBank) of the certificate of incorporation may only be altered, amended, changed, added to, repealed or rescinded by the affirmative vote of holders of capital stock of Sprint entitled to vote thereon representing more than 66-2/3% of the shares entitled to be voted thereon; (2) Section 11.2(b) (amendment of bylaws) of the certificate of incorporation may only be altered, amended, changed, added to, repealed or rescinded by the affirmative vote of holders of capital stock of Sprint entitled to vote thereon representing more than 90% of the shares entitled to be voted thereon; (3) Section 11.2(c) (amendment of bylaws) of the certificate of incorporation may only be | ||||
| Rights of Stockholders of the |
Rights of Current Stockholders of T-Mobile |
Rights of Current Stockholders of Sprint | ||||
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The amended and restated stockholders’ agreement provides that, in addition to any other vote, consent or approval required by the combined company’s certificate of incorporation, bylaws or applicable law, for as long as Deutsche Telekom’s or SoftBank’s voting percentage is 5% or greater, T-Mobile will not amend its certificate of incorporation, bylaws or the amended and restated stockholders’ agreement (including the creation of any stockholder rights plan or other amendment intended to limit such stockholder’s ownership or acquisition of securities of T-Mobile) in any manner that could limit, restrict or adversely affect such stockholder or its rights thereunder without the prior written consent of such stockholder, which consent may be withheld in its sole discretion. |
The stockholders’ agreement provides that, in addition to any other vote, consent or approval required by T-Mobile’s certificate of incorporation, bylaws or applicable law, for as long as Deutsche Telekom’s voting percentage is 5% or greater, T-Mobile will not amend its certificate of incorporation, bylaws or the stockholder’s agreement (including the creation of any stockholder rights plan or other amendment intended to limit Deutsche Telekom’s ownership or acquisition of securities of T-Mobile) in any manner that could limit, restrict or adversely affect Deutsche Telekom or its rights thereunder without the prior written consent of Deutsche Telekom, which consent may be withheld in its sole discretion. |
altered, amended, changed, added to, repealed, or rescinded by (a) prior to the first occurrence of SoftBank’s voting interest falling and remaining below 50% for 90 consecutive days, the affirmative vote of (x) holders of capital stock of Sprint representing at least a majority of the voting power of the then-outstanding shares of capital stock of Sprint entitled to vote thereon and (y) holders of capital stock of Sprint representing at least a majority of the then-outstanding shares of capital stock of Sprint other than the SoftBank-owned shares or (b) after the first occurrence of SoftBank’s voting interest falling and remaining below 50% for 90 consecutive days, the affirmative vote of holders of capital stock of Sprint representing more than 80% of the voting power of the then outstanding shares of capital stock of Sprint entitled to vote thereon; and (4) Sections 6.2 (business activities), 6.3 (corporate opportunities), 6.5 (purchase of Sprint stock by SoftBank), 11.2(d) and (e) (amendment of bylaws) and 12.2 (amendment of certificate of incorporation) of the certificate of incorporation may only be altered, amended, changed, added to, repealed or rescinded by the affirmative vote of (a) holders of capital stock of Sprint representing at least a majority of the voting power of the then-outstanding |
| Rights of Stockholders of the |
Rights of Current Stockholders of T-Mobile |
Rights of Current Stockholders of Sprint | ||||
| In all other instances, the DGCL standard for amendment to the certificate of incorporation described above applies. | In all other instances, the DGCL standard for amendment to the certificate of incorporation described above applies. | shares of capital stock of Sprint entitled to vote thereon and (b) holders of capital stock of Sprint representing at least a majority of the then-outstanding shares of capital stock of Sprint other than the SoftBank-owned shares.
In all other instances, the DGCL standard for amendment to the certificate of incorporation described above applies.
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| Amendments to |
The combined company certificate of incorporation and the bylaws of the combined company provide that the T-Mobile board of directors is expressly authorized, upon the affirmative vote of a majority of the directors then serving, to make, adopt, alter, amend and repeal from time to time the bylaws of T-Mobile and make from time to time new bylaws of T-Mobile (subject to the right of the stockholders entitled to vote thereon to adopt, alter, amend, and repeal bylaws made by the T-Mobile board of directors or to make new bylaws).
The T-Mobile stockholders may adopt, alter, amend or repeal bylaws made by the T-Mobile board of directors or make new bylaws upon the affirmative vote of the holders of shares having a majority of the aggregate voting power of all of the outstanding shares of T-Mobile’s capital stock then entitled to vote thereon. |
The T-Mobile certificate of incorporation and the bylaws of T-Mobile provide that the T-Mobile board of directors is expressly authorized, upon the affirmative vote of a majority of the directors then serving, to make, adopt, alter, amend and repeal from time to time the bylaws of T-Mobile and make from time to time new bylaws of T-Mobile (subject to the right of the stockholders entitled to vote thereon to adopt, alter, amend and repeal bylaws made by the T-Mobile board of directors or to make new bylaws).
The T-Mobile stockholders may adopt, alter, amend or repeal bylaws made by the T-Mobile board of directors or make new bylaws upon the affirmative vote of the holders of shares having a majority of the aggregate voting power of all of the outstanding shares of T-Mobile’s capital stock then entitled to vote thereon. |
The Sprint certificate of incorporation and the bylaws of Sprint provide that, subject to the below exceptions, the Sprint board of directors is expressly authorized, and will have power without the assent or vote of the Sprint stockholders, to adopt, alter, amend, change, add to, repeal and rescind the bylaws. Any adoption, alteration, amendment, change, addition to, repeal or rescission of the bylaws by the Sprint board of directors will require the approval of a majority of the votes entitled to be cast by all members of the Sprint board of directors.
The Sprint stockholders will also have power to adopt, alter, amend, change, add to, repeal and rescind the bylaws and the affirmative vote of holders of capital stock of Sprint representing at least a majority of the voting power of the then-outstanding shares of capital stock of Sprint entitled to vote thereon will be required for | |||
| Rights of Stockholders of the |
Rights of Current Stockholders of T-Mobile |
Rights of Current Stockholders of Sprint | ||||
| The amended and restated stockholders’ agreement provides that, in addition to any other vote, consent or approval required by the combined company’s certificate of incorporation, bylaws or applicable law, for as long as Deutsche Telekom’s or SoftBank’s voting percentage is 5% or greater, T-Mobile will not amend or seek to amend its certificate of incorporation, bylaws or the amended and restated stockholders’ agreement (including the creation of any stockholder rights plan or other amendment intended to limit such stockholder’s ownership or acquisition of securities of T-Mobile) in any manner that could limit, restrict or adversely affect such stockholder or its rights thereunder without the prior written consent of such stockholder, which consent may be withheld in its discretion. | The stockholders’ agreement provides that, in addition to any other vote, consent or approval required by T-Mobile’s certificate of incorporation, bylaws or applicable law, for as long as Deutsche Telekom’s voting percentage is 5% or greater, T-Mobile will not amend or seek to amend its certificate of incorporation, bylaws or the stockholder’s agreement (including the creation of any stockholder rights plan or other amendment intended to limit Deutsche Telekom’s ownership or acquisition of securities of T-Mobile) in any manner that could limit, restrict or adversely affect Deutsche Telekom or its rights thereunder without the prior written consent of Deutsche Telekom, which consent may be withheld in its discretion. | the Sprint stockholders to adopt, alter, amend, change, add to, repeal or rescind any provision of the bylaws.
Notwithstanding the above, Sprint’s certificate of incorporation and bylaws provide for the following limitations on the power to amend its bylaws:
(1) Sections 2.4 (special meetings of stockholders), 2.6(a) (quorum of stockholders), 2.14 (notice of stockholder business and nominations) and 3.2 (number of directors) of the bylaws, and Section 7.7 (amendment) of the bylaws (as it relates to the foregoing sections) may be altered, amended, changed, added to, repealed or rescinded, or new bylaws of Sprint may be made, that are inconsistent with such sections only by the affirmative vote of holders of capital stock of Sprint representing at least a majority of the voting power of the then-outstanding shares of capital stock of Sprint entitled to vote thereon;
(2) Section 3.3(d) (board composition) of the bylaws and Section 7.7 (amendment) of the bylaws (as it relates to the foregoing section) may be altered, amended, changed, added to, repealed, rescinded or new bylaws of Sprint may be made that are inconsistent with such sections only by the affirmative vote of holders of capital stock of Sprint
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| Rights of Stockholders of the |
Rights of Current Stockholders of T-Mobile |
Rights of Current Stockholders of Sprint | ||||
| representing more than 90% of the voting power of the then-outstanding shares of capital stock of Sprint entitled to vote thereon;
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| (3) Sections 3.3(a), 3.3(b), 3.3(c) (board composition) and 3.17(c) (committees) of the bylaws, and Section 7.7 (amendment) of the bylaws (as it relates to the foregoing Sections), may be altered, amended, changed, added to, repealed or rescinded, or new bylaws Sprint may be made, that are inconsistent with such sections only by (a) prior to the first occurrence of SoftBank’s voting interest falling and remaining below 50% for 90 consecutive days, the affirmative vote of (x) holders of capital stock of Sprint representing at least a majority of the voting power of the then-outstanding shares of capital stock of Sprint entitled to vote thereon and (y) holders of capital stock of Sprint representing at least a majority of the then-outstanding shares of capital stock of Sprint other than the SoftBank-owned shares or (b) after the first occurrence of SoftBank’s voting interest falling and remaining below 50% for 90 consecutive days, the affirmative vote of holders of capital stock of Sprint representing more than 80% of the voting power of the then-outstanding shares of capital stock of Sprint entitled to vote thereon; |
| Rights of Stockholders of the |
Rights of Current Stockholders of T-Mobile |
Rights of Current Stockholders of Sprint | ||||
| (4) Section 2.3 (election of directors) of the bylaws (as it relates to the nomination of directors) and Section 7.7 (amendment) of the Bylaws (as it relates to the foregoing section) may be altered, amended, changed, added to or repealed or rescinded or new bylaws of Sprint may be made that are inconsistent with such sections only by the affirmative vote of (a) holders of capital stock of Sprint representing at least a majority of the voting power of the then-outstanding shares of capital stock of Sprint entitled to vote thereon and (b) holders of capital stock of Sprint representing at least a majority of the then- outstanding shares of capital stock of Sprint other than the SoftBank-owned shares; and | ||||||
| (5) Section 3.19 (approval of certain matters) of the bylaws and Section 7.7 (amendment) of the bylaws (as it relates to the foregoing section) may be altered, amended, changed, added to or repealed or rescinded or new bylaws Sprint may be made that are inconsistent with such sections only by (a) the Sprint board of directors in accordance with the provisions of Sections 3.19 and 7.7 of the bylaws or (b) the affirmative vote of (x) holders of capital stock of Sprint representing at least a majority of the voting power of the then-outstanding shares of capital stock of Sprint entitled to vote thereon and (y) holders of | ||||||
| Rights of Stockholders of the |
Rights of Current Stockholders of T-Mobile |
Rights of Current Stockholders of Sprint | ||||
| capital stock of Sprint representing at least a majority of the then- outstanding shares of capital stock of Sprint other than the SoftBank-owned shares. | ||||||
| Certain Business Combinations |
Section 203 of the DGCL prohibits a Delaware corporation from engaging in a business combination with a stockholder acquiring more than 15% but less than 85% of the corporation’s outstanding voting stock for three years following the time that person becomes an “interested stockholder” (a holder of more than 15% of the corporation’s outstanding shares), unless prior to the date the person becomes an interested stockholder, the board of directors approves either the business combination or the transaction which resulted in the stockholder becoming an interested stockholder or the business combination is approved by the board of directors and by the affirmative vote of at least two-thirds of the outstanding voting stock that is not owned by the interested stockholder or other specified exceptions are met. The DGCL allows a corporation’s certificate of incorporation to contain a provision expressly electing not to be governed by Section 203. Certain Business Combinations | |||||
| Because the combined company certificate of incorporation will not contain a provision opting out of Section 203 of the DGCL, it will be subject to such provision at the effective time. | Because the T-Mobile certificate of incorporation does not contain a provision opting out of Section 203 of the DGCL, it is subject to such provision. | Because the Sprint certificate of incorporation does not contain a provision opting out of Section 203 of the DGCL, it is subject to such provision. | ||||
| Exclusive Forum Provision |
The combined company certificate of incorporation provides that unless T-Mobile consents in writing to the selection of an alternative forum, the Court of Chancery of the State of Delaware will be the sole and exclusive forum for (1) any derivative action or proceeding brought on behalf of T-Mobile, (2) any action asserting a claim of breach of a fiduciary duty owed by any director, officer or other employee of T-Mobile to T-Mobile or T-Mobile’s stockholders, (3) any action asserting a claim arising pursuant to any provision of the DGCL or T-Mobile’s certificate of incorporation or bylaws, or (4) any other action asserting a claim | The T-Mobile certificate of incorporation and the bylaws of T-Mobile provide that unless T-Mobile consents in writing to the selection of an alternative forum, the Court of Chancery of the State of Delaware will be the sole and exclusive forum for (1) any derivative action or proceeding brought on behalf of T-Mobile, (2) any action asserting a claim of breach of a fiduciary duty owed by any director, officer or other employee of T-Mobile to T-Mobile or T-Mobile’s stockholders, (3) any action asserting a claim arising pursuant to any provision of the DGCL or T-Mobile’s certificate of incorporation or bylaws, or (4) any other action asserting a claim | The Sprint certificate of incorporation and the bylaws of Sprint provide that unless Sprint consents in writing to the selection of an alternative forum, the Court of Chancery of the State of Delaware will be the sole and exclusive forum for (1) any actual or purported derivative action or proceeding brought on behalf of Sprint against directors or officers of Sprint alleging breaches of fiduciary duty or other wrongdoing by such directors or officers, (2) any action asserting a claim for breach of a fiduciary duty owed by any director or officer of Sprint to Sprint or the Sprint’s stockholders, (3) any action asserting a claim against Sprint or any director or officer of Sprint arising | |||
| Rights of Stockholders of the |
Rights of Current Stockholders of T-Mobile |
Rights of Current Stockholders of Sprint | ||||
| arising under, in connection with and governed by the internal affairs doctrine. | arising under, in connection with and governed by the internal affairs doctrine. | pursuant to any provision of the DGCL or Sprint’s certificate of incorporation or bylaws, (4) any action to interpret, apply, enforce or determine the validity of Sprint’s certificate of incorporation or bylaws, or (5) any action asserting a claim against Sprint or any director or officer of Sprint governed by the internal affairs doctrine. | ||||
| Stockholder Rights Plan |
The DGCL does not include a statutory provision expressly validating stockholder rights plans. However, such plans have generally been upheld by the decisions of courts applying Delaware law. | |||||
| T-Mobile does not have a stockholder rights plan currently in effect.
The amended and restated stockholders’ agreement provides that, in addition to any other vote, consent or approval required by the combined company’s certificate of incorporation, bylaws or applicable law, for as long as Deutsche Telekom’s or SoftBank’s voting percentage is 5% or greater, T-Mobile will not amend or seek to amend its certificate of incorporation, bylaws or the amended and restated stockholders’ agreement (including the creation of any stockholder rights plan or other amendment intended to limit such stockholder’s ownership or acquisition of securities of T-Mobile) in any manner that could limit, restrict or adversely affect such stockholder or its rights thereunder without the prior written consent of such stockholder, which consent may be withheld in its discretion. |
T-Mobile does not have a stockholder rights plan currently in effect.
The stockholders’ agreement provides that, in addition to any other vote, consent or approval required by T-Mobile’s certificate of incorporation, bylaws or applicable law, for as long as Deutsche Telekom’s voting percentage is 5% or greater, T-Mobile will not amend or seek to amend its certificate of incorporation, bylaws or the stockholder’s agreement (including the creation of any stockholder rights plan or other amendment intended to limit Deutsche Telekom’s ownership or acquisition of securities of T-Mobile) in any manner that could limit, restrict or adversely affect Deutsche Telekom or its rights thereunder without the prior written consent of Deutsche Telekom, which consent may be withheld in its discretion. |
Sprint does not have a stockholder rights plan currently in effect. | ||||
