SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
[Rule 13d-101]
INFORMATION TO BE INCLUDED IN STATEMENTS FILED PURSUANT
TO § 240.13d-1(a) AND AMENDMENTS THERETO FILED PURSUANT TO
§ 240.13d-1(a)
(Amendment No. 6)*
SPRINT CORPORATION
(Name of Issuer)
Common Stock, par value $0.01 per share
(Title of Class of Securities)
85207 U 10 5
(CUSIP Number)
Kenneth A. Siegel, Esq. Morrison & Foerster LLP Shin-Marunouchi Building, 29th Floor 5-1, Marunouchi 1-Chome Chiyoda-ku, Tokyo 100-6529 Japan 011-81-3-3214-6522 |
Robert S. Townsend, Esq. Morrison & Foerster LLP 425 Market Street San Francisco, CA 94105-2482 (415) 268-7000 |
(Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications)
September 16, 2013
(Date of Event Which Requires Filing of This Statement)
If the filing person has previously filed a statement on Schedule 13G to report the acquisition that is the subject of this Schedule 13D, and is filing this schedule because of §§ 240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check the following box: ¨
NOTE: Schedules filed in paper format shall include a signed original and five copies of the schedule, including all exhibits. See §240.13d-7 for other parties to whom copies are to be sent.
* | The remainder of this cover page shall be filled out for a reporting persons initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter disclosures provided in a prior cover page. |
The information required on the remainder of this cover page shall not be deemed to be filed for the purpose of Section 18 of the Securities Exchange Act of 1934 (the Act) or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes).
(Continued on following pages)
(1) | Name of reporting person:
SoftBank Corp. | |||||
(2) | Check the appropriate box if a member of a group (a) x (b) ¨
| |||||
(3) | SEC use only
| |||||
(4) | Source of funds:
WC, BK(1) | |||||
(5) | Check box if disclosure of legal proceedings is required pursuant to Items 2(d) or 2(e) ¨
| |||||
(6) | Citizenship or place of organization:
Japan | |||||
Number of shares beneficially owned by each reporting person with
|
(7) | Sole voting power:
0 | ||||
(8) | Shared voting power:
3,205,665,088 (1) (2) | |||||
(9) | Sole dispositive power:
0 | |||||
(10) | Shared dispositive power:
3,205,665,088 (1) (2) | |||||
(11) |
Aggregate amount beneficially owned by each reporting person:
3,205,665,088 (1) (2) | |||||
(12) | Check box if the aggregate amount in Row (11) excludes certain shares ¨
| |||||
(13) | Percent of class represented by amount in Row (11):
80.50% (2) (3) | |||||
(14) | Type of reporting person:
HC, CO |
(1) | Such figure reflects (i) a reclassification exempt under Rule 16b-7 under the Securities Exchange Act of 1934, as amended (the Exchange Act), in which Sprint Corporation (formerly known as Starburst II, Inc. and referred to herein as New Sprint) Class B Common Stock, par value $0.01 per share (New Sprint Class B Common Stock), held by Starburst I, Inc. (Starburst I) was reclassified into 3,076,525,523 shares of New Sprint common stock, par value $0.01 per share (the New Sprint Common Stock), (ii) the issuance by New Sprint to Starburst I of the New Sprint Warrant, dated July 10, 2013 (the Warrant), which is subject to anti-dilution adjustment, as described in the Warrant, (iii) purchases of New Sprint Common Stock made by Galaxy Investment Holdings, Inc. (Galaxy) pursuant to a Rule 10b-18 Purchase Agreement and in compliance with Rule 10b-18 under the Exchange Act (the Rule 10b-18 Purchases), and (iv) purchases of New Sprint Common Stock made by Galaxy pursuant to a written plan under Rule 10b5-1 of the Exchange Act and in compliance with Rule 10b-18 under the Exchange Act (the Rule 10b5-1 Purchases and together with the Rule 10b-18 Purchases, the Galaxy Purchases). |
(2) | As more fully described in the responses to Item 2 and Items 4 through 6 of this Schedule 13D, SoftBank Corp. (SoftBank), Starburst I and Galaxy (collectively, the Reporting Persons) may be deemed to be members of a group under Section 13(d) of the Exchange Act by virtue of SoftBanks ownership of Starburst I and Galaxy, the Agreement and Plan of Merger, dated October 15, 2012, by and among Sprint Nextel Corporation (Sprint Nextel), SoftBank, Starburst I, New Sprint and Starburst III, Inc., as amended on November 29, 2012, April 12, 2013 and June 10, 2013 (as amended, the Merger Agreement), the Warrant, and the Galaxy Purchases. |
(3) | Percentage of class that may be deemed to be beneficially owned by SoftBank is based on the outstanding New Sprint Common Stock as set forth in New Sprints Quarterly Report on Form 10-Q, filed with the Securities and Exchange Commission (the Commission) on August 5, 2013 (and including shares of New Sprint Common Stock issuable upon exercise of the Warrant). |
(1) | Name of reporting person:
Starburst I, Inc. | |||||
(2) | Check the appropriate box if a member of a group (a) x (b) ¨
| |||||
(3) | SEC use only
| |||||
(4) | Source of funds:
AF | |||||
(5) | Check box if disclosure of legal proceedings is required pursuant to Items 2(d) or 2(e) ¨
| |||||
(6) | Citizenship or place of organization:
Delaware | |||||
Number of shares beneficially owned by each reporting person with
|
(7) | Sole voting power:
0 | ||||
(8) | Shared voting power:
3,131,105,447 (1) (2) | |||||
(9) | Sole dispositive power:
0 | |||||
(10) | Shared dispositive power:
3,131,105,447 (1) (2) | |||||
(11) |
Aggregate amount beneficially owned by each reporting person:
3,131,105,447 (1) (2) | |||||
(12) | Check box if the aggregate amount in Row (11) excludes certain shares ¨
| |||||
(13) | Percent of class represented by amount in Row (11):
78.63% (2) (3) | |||||
(14) | Type of reporting person:
HC, CO |
(1) | Such figure reflects (i) a reclassification exempt under Rule 16b-7 under the Exchange Act in which New Sprint Class B Common Stock held by Starburst I was reclassified into 3,076,525,523 shares of New Sprint Common Stock and (ii) the issuance of the Warrant, which is subject to anti-dilution adjustment, as described in the Warrant. |
(2) | As more fully described in the responses to Item 2 and Items 4 through 6 of this Schedule 13D, the Reporting Persons may be deemed to be members of a group under Section 13(d) of the Exchange Act by virtue of SoftBanks ownership of Starburst I and Galaxy, the Merger Agreement, the Warrant and the Galaxy Purchases. Starburst I expressly disclaims beneficial ownership with respect to the shares of New Sprint Common Stock deemed to be beneficially owned by SoftBank and Galaxy, except to the extent of Starburst Is direct pecuniary interest in the shares of New Sprint Common Stock directly beneficially owned by Starburst I. |
(3) | Percentage of class is based on the outstanding New Sprint Common Stock as set forth in New Sprints Quarterly Report on Form 10-Q, filed with the Commission on August 5, 2013 (and including shares of New Sprint Common Stock issuable upon exercise of the Warrant). |
(1) | Name of reporting person:
Galaxy Investment Holdings, Inc. | |||||
(2) | Check the appropriate box if a member of a group (a) x (b) ¨
| |||||
(3) | SEC use only
| |||||
(4) | Source of funds:
AF | |||||
(5) | Check box if disclosure of legal proceedings is required pursuant to Items 2(d) or 2(e) ¨
| |||||
(6) | Citizenship or place of organization:
Delaware | |||||
Number of shares beneficially owned by each reporting person with
|
(7) | Sole voting power:
0 | ||||
(8) | Shared voting power:
74,559,641 (1) (2) | |||||
(9) | Sole dispositive power:
0 | |||||
(10) | Shared dispositive power:
74,559,641 (1) (2) | |||||
(11) |
Aggregate amount beneficially owned by each reporting person:
74,559,641 (1) (2) | |||||
(12) | Check box if the aggregate amount in Row (11) excludes certain shares ¨
| |||||
(13) | Percent of class represented by amount in Row (11):
1.90% (2) (3) | |||||
(14) | Type of reporting person:
HC, CO |
(1) | Such figure reflects the Galaxy Purchases. |
(2) | As more fully described in the responses to Item 2 and Items 4 through 6 of this Schedule 13D, the Reporting Persons may be deemed to be members of a group under Section 13(d) of the Exchange Act by virtue of SoftBanks ownership of Starburst I, and Galaxy, the Merger Agreement, the Warrant, and the Galaxy Purchases. Galaxy expressly disclaims beneficial ownership with respect to the shares of New Sprint Common Stock deemed to be beneficially owned by SoftBank and Starburst I, except to the extent of Galaxys direct pecuniary interest in the shares of New Sprint Common Stock directly beneficially owned by Galaxy. |
(3) | Percentage of class is based on the outstanding New Sprint Common Stock as set forth in New Sprints Quarterly Report on Form 10-Q, filed with the Commission on August 5, 2013. |
EXPLANATORY NOTE
This Amendment No. 6 (this Schedule 13D) is being jointly filed on behalf of SoftBank Corp., a Japanese kabushiki kaisha (SoftBank), Starburst I, Inc., a Delaware corporation and wholly owned subsidiary of SoftBank (Starburst I) and Galaxy Investment Holdings, Inc., a Delaware corporation and wholly owned subsidiary of SoftBank (Galaxy, and together with SoftBank and Starburst I, the Reporting Persons, and each a Reporting Person) with respect to Sprint Corporation, a Delaware corporation (referred to herein as New Sprint or the Issuer). This Schedule 13D amends and restates the Schedule 13D filed by SoftBank, Starburst I, New Sprint and Starburst III, Inc., a Kansas corporation (Merger Sub) on October 25, 2012, as amended on April 22, 2013 and June 11, 2013, as amended and restated on July 12, 2013, and as amended on August 6, 2013 and August 27, 2013 (as amended and/or restated from time to time, the Original 13D), which relates to the common stock of New Sprint, par value $0.01 per share (the New Sprint Common Stock).
In connection with the completion of the Merger, as defined in the Agreement and Plan of Merger, dated October 15, 2012, by and among Sprint Nextel Corporation (Sprint Nextel), SoftBank, Starburst I, New Sprint, and Merger Sub, as amended on November 29, 2012, April 12, 2013 and June 10, 2013 (as amended, the Merger Agreement, which is incorporated by reference from Exhibits 99.2 through 99.5 to this Schedule 13D), Merger Sub was merged into Sprint Nextel, New Sprint became the parent company of Sprint Nextel, with Sprint Nextel becoming its wholly owned subsidiary, and Sprint Nextel changed its name to Sprint Communications, Inc. In connection with the Merger and by operation of Rule 12g-3(a) promulgated under the Securities Exchange Act of 1934, as amended (the Exchange Act), New Sprint is the successor issuer to Sprint Nextel and has succeeded to the attributes of Sprint Nextel, including Sprint Nextels Securities and Exchange Commission (the Commission) file number (001-04721). The New Sprint Common Stock is deemed to be registered under Section 12(b) of the Exchange Act, and New Sprint is subject to the informational requirements of the Exchange Act, and the rules and regulations promulgated thereunder, and files reports and other information with the Commission using the Commission file number previously used by Sprint Nextel.
This Schedule 13D is being filed to reflect purchases of New Sprint Common Stock by Galaxy (i) pursuant to a Rule 10b-18 Purchase Agreement (the Rule 10b-18 Purchase Agreement) entered into by and between Galaxy and J.P. Morgan Securities LLC (JPMS) on August 1, 2013, which is incorporated by reference herein from Exhibit 99.8 (such purchases, the Rule 10b-18 Purchases) and (ii) in compliance with Rule 10b-18 of the Exchange Act and pursuant to a written plan under Rule 10b5-1 of the Exchange Act (the Rule 10b5-1 Plan) entered into by and between Galaxy and JPMS on August 30, 2013, which is attached hereto as Exhibit 99.12 and is incorporated by reference herein (such purchases, the Rule 10b5-1 Purchases, and together with the Rule 10b-18 Purchases, the Galaxy Purchases). Pursuant to the Rule 10b-18 Purchase Agreement and Rule 10b5-1 Plan, between August 1, 2013 and September 16, 2013, Galaxy, through JPMS, acquired approximately 2% of the outstanding shares of New Sprint Common Stock. As of September 17, 2013, the Rule 10b-18 Purchase Agreement and the Rule 10b5-1 Plan are no longer in effect. The Galaxy Purchases were made to increase SoftBanks beneficial ownership in New Sprint to approximately 80% of the outstanding shares of New Sprint Common Stock (not including the shares of New Sprint Common Stock underlying the Warrant, as defined below). As of September 16, 2013, exclusive of any shares of New Sprint Common Stock underlying the Warrant, SoftBank may be deemed to beneficially own approximately 80% of the outstanding shares of New Sprint Common Stock, based on the outstanding New Sprint Common Stock as set forth in New Sprints Quarterly Report on Form 10-Q, filed with the Commission on August 5, 2013.
This Schedule 13D amends and restates the Original 13D in its entirety.
Item 1. Security and Issuer.
The class of equity securities to which this Schedule 13D relates is the Common Stock of the Issuer. The address of the Issuers principal executive offices is 6200 Sprint Parkway, Overland Park, Kansas 66251.
Item 2. Identity and Background.
(a) through (f) This Schedule 13D is being jointly filed on behalf of SoftBank, Starburst I and Galaxy.
The New Sprint Common Stock reported on this Schedule 13D is owned directly by Starburst I and Galaxy, as described in Item 5 to this Schedule 13D. SoftBank is included as a Reporting Person solely because it is the sole owner of both Starburst I and Galaxy. Pursuant to (i) SoftBanks ownership of Starburst I and Galaxy, (ii) the Merger Agreement, (iii) the issuance by New Sprint to Starburst I of the New Sprint Warrant, dated July 10, 2013 (the Warrant, a copy of which is incorporated by reference from Exhibit 99.6 to this Schedule 13D and incorporated by reference into this Item 2), (iv) the Galaxy Purchases (the New Sprint Common Stock acquired by Galaxy in the Galaxy Purchases, the Galaxy Shares) and (v) Rule 13d-5(b)(1) under the Exchange Act, SoftBank, Starburst I and Galaxy may be deemed to be a group and such group may be deemed to have acquired beneficial ownership for purposes of Section 13(d) of the Exchange Act, of all of the New Sprint Common Stock beneficially owned by such group. Starburst I expressly disclaims beneficial ownership with respect to the Galaxy Shares. Galaxy expressly disclaims beneficial ownership with respect to the shares of New Sprint Common Stock deemed to be beneficially owned by SoftBank and Starburst I, except to the extent of Galaxys direct pecuniary interest in the Galaxy Shares.
SoftBank Corp. | ||
(a) Name of Person Filing | SoftBank Corp. | |
(b) Address of Principal Business Office | 1-9-1, Higashi-Shimbashi Minato-ku, Tokyo 105-7303 Japan | |
(c) Principal Business | SoftBank is currently engaged in various businesses in the information industry, including mobile communications, broadband infrastructure, fixed-line telecommunications, and Internet culture. | |
(d) (e) Criminal and Civil Proceedings | During the last five years, neither SoftBank nor, to SoftBanks knowledge, any of the individuals referred to in Appendix A-1, has been convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors) or was a party to a civil proceeding of a judicial or administrative body of competent jurisdiction and as a result of such proceeding was or is subject to a judgment, decree or final order enjoining future violations of, or prohibiting or mandating activities subject to, federal or state securities laws, or finding violations with respect to such laws. | |
(f) Place of Organization | Japan | |
Starburst I, Inc. | ||
(a) Name of Person Filing | Starburst I, Inc. | |
(b) Address of Principal Business Office | One Circle Star Way, San Carlos, California 94070 | |
(c) Principal Business | Wholly owned subsidiary of SoftBank formed for purposes of holding SoftBanks indirect interest in New Sprint. | |
(d) (e) Criminal and Civil Proceedings | During the last five years, neither Starburst I nor, to Starburst Is knowledge, any of the individuals referred to in Appendix A-2, has been convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors) or was a party to a civil proceeding of a judicial or administrative body of competent jurisdiction and as a result of such proceeding was or is subject to a judgment, decree or final order enjoining future violations of, or prohibiting or mandating activities subject to, federal or state securities laws, or finding violations with respect to such laws. | |
(f) Place of Organization | Delaware | |
Galaxy Investment Holdings, Inc. | ||
(a) Name of Person Filing | Galaxy Investment Holdings, Inc. | |
(b) Address of Principal Business Office | One Circle Star Way, San Carlos, California 94070 | |
(c) Principal Business | Wholly owned subsidiary of SoftBank formed for purposes of holding SoftBanks indirect interest in New Sprint. | |
(d) (e) Criminal and Civil Proceedings | During the last five years, neither Galaxy nor, to Galaxys knowledge, any of the individuals referred to in Appendix A-3, has been convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors) or was a party to a civil proceeding of a judicial or administrative body of competent jurisdiction and as a result of such proceeding was or is subject to a judgment, decree or final order enjoining future violations of, or prohibiting or mandating activities subject to, federal or state securities laws, or finding violations with respect to such laws. | |
(f) Place of Organization | Delaware |
Item 3. Source and Amount of Funds or Other Consideration.
Starburst I directly owns the New Sprint Common Stock (or, in the case of the Warrant, may be deemed to beneficially own the shares of New Sprint Common Stock underlying the Warrant (the Warrant Shares)), pursuant to (i) a reclassification exempt under
Rule 16b-7 under the Exchange Act, in which New Sprint Class B Common Stock, par value $0.01 per share, held by Starburst I was reclassified into 3,076,525,523 shares of New Sprint Common Stock (the Reclassification) and (ii) the issuance by New Sprint to Starburst I of the Warrant, which is subject to anti-dilution adjustment, as described in the Warrant. The New Sprint Common Stock held by Starburst I following the Reclassification and the Warrant Shares are referred to together in this Schedule 13D as the Starburst I Shares.
SoftBank initially financed the acquisition of the Starburst I Shares through a combination of borrowings under a bridge loan agreement dated December 18, 2012 with Mizuho Corporate Bank, Ltd. (now Mizuho Bank, Ltd.), Sumitomo Mitsui Banking Corporation, The Bank of Tokyo-Mitsubishi UFJ, Ltd. and Deutsche Bank AG, Tokyo Branch; proceeds from a global offering of senior U.S. dollar and euro notes on April 23, 2013; and proceeds from Japanese domestic offerings of yen-denominated unsecured corporate bonds on March 1, 2013, March 12, 2013 and June 20, 2013.
Pursuant to the Merger Agreement, no additional consideration was payable in connection with the issuance to Starburst I of the Warrant to purchase 54,579,924 shares of New Sprint Common Stock at a price of $5.25 per share. The Warrant is exercisable at any time until July 10, 2018.
Between August 1, 2013 and September 16, 2013, Galaxy purchased 74,559,641 shares of New Sprint Common Stock pursuant to the Rule 10b-18 Purchase Agreement and the Rule 10b5-1 Plan, for an aggregate purchase price of $498,508,805.88, exclusive of any fees, commissions or other expenses. Galaxy directly beneficially owns the Galaxy Shares. Galaxys acquisition of the Galaxy Shares was financed from SoftBanks general working capital.
Pursuant to SoftBanks ownership of Starburst I and Galaxy, SoftBank may be deemed to beneficially own the Starburst I Shares and the Galaxy Shares.
Item 4. Purpose of Transaction.
Purpose of the Transaction
SoftBank may be deemed a beneficial owner of the Starburst I Shares and the Galaxy Shares as described in Item 3 to this Schedule 13D. The Merger is intended to make Sprint a stronger, more competitive company that will deliver significant benefits to U.S. consumers based on SoftBanks expertise in the deployment of next-generation wireless networks and track record of success in taking share in mature markets from larger telecommunications competitors.
Starburst I directly owns the New Sprint Common Stock as a result of the Reclassification, and may be deemed to beneficially own the Warrant Shares.
On August 1, 2013, Galaxy commenced making the Galaxy Purchases. As of September 16, 2013, as a result of the Galaxy Purchases, Galaxy had directly acquired 74,559,641 shares of New Sprint Common Stock, or approximately 1.90% of the outstanding shares of New Sprint Common Stock, based on the outstanding New Sprint Common Stock as set forth in New Sprints Quarterly Report on Form 10-Q, filed with the Commission on August 5, 2013. As of September 17, 2013, the Rule 10b-18 Purchase Agreement and the Rule 10b5-1 Plan are no longer in effect.
Plans or Proposals
The Reporting Persons, as stockholders in New Sprint, intend to review their investment in New Sprint and have discussions with representatives of New Sprint and/or other stockholders of New Sprint from time to time and, as a result thereof, may at any time and from time to time determine to take any available course of action and may take any steps to implement any such course of action. Such review, discussions, actions or steps may involve one or more of the types of transactions specified in clauses (a) through (j) of Item 4 of this Schedule 13D, including purchase or sale of New Sprint Common Stock, business combination or other extraordinary corporate transactions, sales or purchases of material assets, changes in the board of directors or management of New Sprint, changes to New Sprints business or corporate structure, shared service agreements, collaborations, joint ventures and other business arrangements between or involving SoftBank and New Sprint. Any action or actions the Reporting Persons might undertake in respect of the New Sprint Common Stock will be dependent upon the Reporting Persons review of numerous factors, including, among other things, the price level and liquidity of the New Sprint Common Stock; general market and economic conditions; ongoing evaluation of New Sprints business, financial condition, operations, prospects and strategic alternatives; the relative attractiveness of alternative business and investment opportunities; tax considerations; and other factors and future developments. Notwithstanding anything to the contrary herein, the Reporting Persons specifically reserve the right to change their intentions with respect to any or all of such matters.
Item 5. Interest in Securities of the Issuer.
(a)-(b) As of September 16, 2013, each Reporting Person may be deemed to have beneficial ownership (within the meaning of Rule 13d-3 under the Exchange Act) and shared power to vote or direct the vote of up to the number of shares of New Sprint Common
Stock set forth in the table below and may be deemed to constitute a group under Section 13(d) of the Exchange Act as described in Item 2 of this Schedule 13D, which is incorporated herein by reference.
Reporting Person |
Shares of New Sprint Common Stock Such Reporting Person May Be Deemed to Beneficially Own |
Percent of Voting Power of New Sprint Common Stock(1) |
||||||
SoftBank Corp.(2) |
3,205,665,088 | 80.50 | % | |||||
Starburst I, Inc.(3) |
3,131,105,447 | 78.63 | % | |||||
Galaxy Investment Holdings, Inc.(4) |
74,559,641 | 1.90 | % |
(1) | The respective percentages of beneficial ownership are based on 3,927,408,000 shares of New Sprint Common Stock outstanding as set forth in New Sprints Quarterly Report on Form 10-Q, filed with the Commission on August 5, 2013 (and, as to SoftBank and Starburst I, including the Warrant Shares). |
(2) | Consists of 3,076,525,523 shares of New Sprint Common Stock held by Starburst I as a result of the Reclassification, the 54,579,924 shares of New Sprint Common Stock underlying the Warrant, which may be exercised in whole or in part, at any time until July 10, 2018, and 74,559,641 shares of New Sprint Common Stock held by Galaxy. |
(3) | Consists of 3,076,525,523 shares of New Sprint Common Stock held by Starburst I following the Reclassification and 54,579,924 shares of New Sprint Common Stock underlying the Warrant, which may be exercised in whole or in part, at any time until July 10, 2018. Starburst I expressly disclaims beneficial ownership with respect to the Galaxy Shares. |
(4) | Galaxy expressly disclaims beneficial ownership with respect to the Starburst I Shares. |
(c) The information contained in Items 3 and 4 to this Schedule 13D is herein incorporated by reference. In connection with the closing of the Merger, all Sprint Nextel common stock and options to acquire Sprint Nextel common stock held by directors and executive officers of Sprint Nextel (immediately prior to the consummation of the Merger) were exchanged for Merger Consideration (as defined in the Merger Agreement) or options to purchase New Sprint Common Stock pursuant to the terms of the Merger Agreement.
The weighted average price per share, exclusive of any fees, commissions or other expenses for the Galaxy Purchases made between August 1, 2013 and September 16, 2013 are as set forth in the following table:
Purchase Date |
Shares Purchased |
Weighted Average Price per Share |
Price Range for Shares Purchased | |||
August 1, 2013 |
12,767,190 | $6.31 | $6.05 - $6.45 | |||
August 2, 2013 |
9,062,392 | $6.61 | $6.41 - $6.75 | |||
August 5, 2013 |
6,978,630 | $6.76 | $6.53 - $6.88 | |||
August 6, 2013 |
385,128 | $6.90 | $6.89 - $6.90 | |||
August 7, 2013 |
2,051,635 | $6.84 | $6.72 - $6.95 | |||
August 8, 2013 |
1,448,597 | $6.92 | $6.80 - $6.98 | |||
August 9, 2013 |
1,852,351 | $7.04 | $6.89 - $7.20 | |||
August 12, 2013 |
1,043,739 | $7.12 | $7.05 - $7.20 | |||
August 13, 2013 |
1,949,734 | $7.01 | $6.95 - $7.14 | |||
August 14, 2013 |
1,624,164 | $7.01 | $6.97 - $7.10 | |||
August 15, 2013 |
2,619,257 | $6.96 | $6.94 - $7.01 | |||
August 16, 2013 |
1,852,781 | $6.96 | $6.91 - $7.04 | |||
August 19, 2013 |
1,961,578 | $6.89 | $6.82 - $6.97 | |||
August 20, 2013 |
751,657 | $6.95 | $6.89 - $6.98 | |||
August 21, 2013 |
1,147,737 | $6.94 | $6.90 - $6.97 | |||
August 22, 2013 |
683,217 | $6.95 | $6.93 - $7.00 | |||
August 23, 2013 |
656,870 | $6.94 | $6.90 - $6.98 | |||
August 26, 2013 |
824,599 | $6.93 | $6.90 - $6.98 | |||
August 27, 2013 |
4,702,675 | $6.80 | $6.73 - $6.91 | |||
August 28, 2013 |
1,986,971 | $6.69 | $6.66 - $6.74 | |||
August 29, 2013 |
3,733,446 | $6.77 | $6.66 - $6.84 | |||
September 10, 2013 |
3,290,826 | $6.33 | $6.27 - $6.42 | |||
September 11, 2013 |
3,290,826 | $6.49 | $6.34 - $6.53 | |||
September 12, 2013 |
3,290,826 | $6.71 | $6.47 - $6.83 | |||
September 13, 2013 |
2,648,800 | $6.76 | $6.64 - $6.86 | |||
September 16, 2013 |
1,954,015 | $6.72 | $6.62 - $6.83 |
The Reporting Persons undertake to provide New Sprint, any stockholder of New Sprint, or the Staff of the Commission, upon request, full information regarding the number of shares purchased at each separate price within the ranges set forth in this Item 5(c) to this Schedule 13D.
Except as set forth above or incorporated herein, none of (i) the Reporting Persons and, (ii) to the Reporting Persons knowledge, the persons set forth on Appendix A-1, A-2 or A-3 of this Schedule 13D has effected any transaction in New Sprint Common Stock during the past 60 days.
(d) To the best knowledge of the Reporting Persons, no other person has the right to receive or the power to direct the receipt of dividends from, or the proceeds of the sale of, the securities that are the subject of this Schedule 13D.
(e) Not applicable.
Item 6. Contracts, Arrangements, Understandings or Relationships with Respect to Securities of the Issuer.
As of September 17, 2013, the Rule 10b-18 Purchase Agreement and the Rule 10b5-1 Plan, copies of which are incorporated by reference from Exhibits 99.8 and 99.12, respectively, are no longer in effect.
The Warrant, a copy of which is incorporated by reference from Exhibit 99.6 to this Schedule 13D, is incorporated by reference into this Item 6.
Pursuant to the terms of the Merger Agreement, during the 24 months immediately following the consummation of the Merger, the board of directors of New Sprint will consist of 10 members, as follows:
| one director who also will be the Chief Executive Officer of New Sprint; |
| three individuals designated by SoftBank who qualify as Independent Directors as such term is defined in the New York Stock Exchange listing rules; |
| three additional individuals proposed by Sprint and reasonably acceptable to SoftBank from the members of the board of directors of Sprint Nextel immediately prior to the consummation of the Merger, who will be Independent Directors; |
| three additional individuals nominated by SoftBank or its controlled affiliate and elected by the stockholders of New Sprint, who may or may not qualify as Independent Directors; and |
| one of the directors designated by SoftBank, subject to U.S. government approval, will serve as the Security Director pursuant to the National Security Agreement. The National Security Agreement addresses certain national security, law enforcement, and public safety matters related to New Sprints wireless and wireline operations. The Security Director will administer New Sprints compliance with, and will be authorized and empowered to comply with and perform his obligations under, the National Security Agreement. The Security Director will also be a member of the compensation committee of New Sprints board of directors. |
As of the date hereof, Masayoshi Son, founder, Chairman and CEO of SoftBank, Ronald D. Fisher, President of Starburst I, Daniel R. Hesse, Chief Executive Officer of New Sprint, Admiral Michael G. Mullen USN (ret), Security Director of New Sprint, Frank Ianna, Robert R. Bennett, Gordon M. Bethune and Sara Martinez Tucker are members of the New Sprint board of directors. The New Sprint board of directors has determined that each of Adm. Mullen and Messrs. Bennett, Bethune and Ianna and Ms. Tucker are Independent Directors. The other vacancies on the New Sprint board of directors will be filled by the board of directors of New Sprint.
In addition, during the 12 months immediately following the 24 month period described above, the board of directors of New Sprint will consist of 10 members, determined as follows:
| the Chief Executive Officer of New Sprint; |
| six individuals who qualify as Independent Directors; and |
| three additional individuals nominated by SoftBank or its controlled affiliates and elected by the stockholders of New Sprint, who may or may not qualify as Independent Directors, but one of whom shall be the Security Director as provided under the National Security Agreement. |
Each director of New Sprint will remain in office until his or her earlier resignation or his or her successors are elected in accordance with the bylaws of New Sprint.
At all times following the periods described above until such time as the combined voting interest of SoftBank and its controlled affiliates in New Sprint falls below 50% and remains below 50% for 90 consecutive days, the New 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. Thereafter, unless and until the combined voting interest of SoftBank and its controlled affiliates in New Sprint remains below 10% for 90 consecutive days, the New 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 New Sprint, rounded up to the nearest whole number.
The foregoing summary of certain provisions of the Merger Agreement is not intended to be complete and is qualified in its entirety by reference to the full text of the Merger Agreement, which is incorporated by reference from Exhibits 99.2 through 99.5 to this Schedule 13D, and is incorporated by reference into Item 4 of this Schedule 13D.
Pursuant to the Amended and Restated Certificate of Incorporation of New Sprint, in the event that SoftBanks (including through its controlled affiliates) voting interest in New Sprint exceeds 85%, either SoftBank or its controlled affiliate must commence a tender offer to acquire all shares of New Sprint Common Stock not owned by SoftBank (or its controlled affiliates), subject to certain conditions. Alternately, in such an event, SoftBank may, but is not obligated to, cause New Sprint to effect a merger or other business combination to acquire the New Sprint Common Stock not owned by SoftBank or its controlled affiliates. A copy of the Amended and Restated Certificate of Incorporation of New Sprint is incorporated by reference from Exhibit 99.7 to this Schedule 13D and incorporated by reference into this Item 6.
Item 7. Material to be Filed as Exhibits.
Exhibit |
Description | |
99.1 | Joint Filing Agreement, dated as of August 5, 2013, by and between SoftBank Corp., Starburst I, Inc. and Galaxy Investment Holdings, Inc. (incorporated herein by reference to Exhibit 99.1 of the Schedule 13D Amendment filed by SoftBank Corp., Starburst I, Inc., and Galaxy Investment Holdings, Inc. filed August 6, 2013). | |
99.2 | Agreement and Plan of Merger, dated as of October 15, 2012, by and among Sprint Nextel Corporation, SoftBank Corp., Starburst I, Inc., Sprint Corporation (then known as Starburst II, Inc.) and Starburst III, Inc. (included as part of Annex A beginning on page Annex A-1 to the Proxy Statement-Prospectus of Sprint Corporation filed May 1, 2013 and incorporated herein by reference) (File No. 333-186448). | |
99.3 | First Amendment to Agreement and Plan of Merger, dated as of October 15, 2012, entered into as of November 29, 2012, by and among Sprint Nextel Corporation, SoftBank Corp., Starburst I, Inc., Sprint Corporation (then known as Starburst II, Inc.) and Starburst III, Inc. (included as part of Annex A beginning on page Annex A-132 to the Proxy Statement-Prospectus of Sprint Corporation filed May 1, 2013 and incorporated herein by reference) (File No. 333-186448). | |
99.4 | Second Amendment to Agreement and Plan of Merger, dated as of October 15, 2012, entered into as of April 12, 2013, by and among Sprint Nextel Corporation, SoftBank Corp., Starburst I, Inc., Sprint Corporation (then known as Starburst II, Inc.) and Starburst III, Inc. (included as part of Annex A beginning on page Annex A-134 to the Proxy Statement-Prospectus of Sprint Corporation filed May 1, 2013 and incorporated herein by reference) (File No. 333-186448). | |
99.5 | Third Amendment to Agreement and Plan of Merger, dated as of October 15, 2012, entered into as of June 10, 2013, by and among Sprint Nextel Corporation, SoftBank Corp., Starburst I, Inc., Sprint Corporation (then known as Starburst II, Inc.) and Starburst III, Inc. (incorporated herein by reference to Exhibit 2.1 of Sprint Corporations Current Report on Form 8-K filed June 11, 2013) (File No. 333-186448). | |
99.6 | Warrant Agreement for Sprint Corporation Common Stock, dated as of July 10, 2013 (incorporated herein by reference to Exhibit 10.6 of Sprint Corporations Current Report on Form 8-K filed July 11, 2013) (File No. 001-04721). | |
99.7 | Amended and Restated Certificate of Incorporation of Sprint Corporation (incorporated herein by reference to Exhibit 3.1 of Sprint Corporations Current Report on Form 8-K filed July 11, 2013) (File No. 001-04721). | |
99.8 | 10b-18 Purchase Agreement, dated as of August 1, 2013, by and between Galaxy Investment Holdings, Inc. and J.P. Morgan Securities LLC (incorporated herein by reference to Exhibit 99.8 of the Schedule 13D Amendment filed by SoftBank Corp., Starburst I, Inc., and Galaxy Investment Holdings, Inc. filed August 6, 2013). | |
99.9 | Power of Attorney, dated as of August 5, 2013, executed by Masayoshi Son (incorporated herein by reference to Exhibit 99.9 of the Schedule 13D Amendment filed by SoftBank Corp., Starburst I, Inc., and Galaxy Investment Holdings, Inc. filed August 6, 2013). | |
99.10 | Power of Attorney, dated as of August 5, 2013, executed by Ronald D. Fisher (incorporated herein by reference to Exhibit 99.10 of the Schedule 13D Amendment filed by SoftBank Corp., Starburst I, Inc., and Galaxy Investment Holdings, Inc. filed August 6, 2013). | |
99.11 | Power of Attorney, dated as of August 5, 2013, executed by Katsumasa Niki (incorporated herein by reference to Exhibit 99.11 of the Schedule 13D Amendment filed by SoftBank Corp., Starburst I, Inc., and Galaxy Investment Holdings, Inc. filed August 6, 2013). | |
99.12* | 10b5-1/10b-18 Purchase Plan Agreement, dated as of August 30, 2013, by and between Galaxy Investment Holdings, Inc. and J.P. Morgan Securities LLC. |
* | Filed herewith. |
SIGNATURES
After reasonable inquiry and to the best of our knowledge and belief, the undersigned certify that the information set forth in this statement is true, complete and correct.
Dated: September 18, 2013
SOFTBANK CORP. | ||
By | /s/ Joshua O. Lubov | |
Name: | Joshua O. Lubov | |
Title: | Attorney-in-Fact | |
STARBURST I, INC. | ||
By | /s/ Joshua O. Lubov | |
Name: | Joshua O. Lubov | |
Title: | Attorney-in-Fact | |
GALAXY INVESTMENT HOLDINGS, INC. | ||
By | /s/ Joshua O. Lubov | |
Name: | Joshua O. Lubov | |
Title: | Attorney-in-Fact |
Appendix A-1
EXECUTIVE OFFICERS AND DIRECTORS
OF
SOFTBANK CORP.
Set forth below is a list of each executive officer and director of SoftBank Corp. setting forth the business address and present principal occupation or employment (and the name and address of any corporation or organization in which such employment is conducted) of each person.
Name and Business Address |
Present Principal Occupation (principal business |
Name and Address of Corporation or Other | ||
Masayoshi Son*, a citizen of Japan SoftBank Corp. 1-9-1 Higashi-Shimbashi, Minato-ku, Tokyo 105-7303 Japan |
Representative Director/Chairman & CEO of SoftBank Corp. | |||
Ken Miyauchi*, a citizen of Japan SoftBank Corp. 1-9-1 Higashi-Shimbashi, Minato-ku, Tokyo 105-7303 Japan |
Representative Director/Executive Vice President of SoftBank Corp. | |||
Kazuhiko Kasai*, a citizen of Japan SoftBank Corp. 1-9-1 Higashi-Shimbashi, Minato-ku, Tokyo 105-7303 Japan |
Director of SoftBank Corp. | |||
Ronald D. Fisher*, a citizen of the United States of America SoftBank Corp. 1-9-1 Higashi-Shimbashi, Minato-ku, Tokyo 105-7303 Japan |
Director and President of SoftBank Holdings Inc., a wholly owned subsidiary of SoftBank Corp. | SoftBank Holdings Inc. 38 Glen Avenue Newton, Massachusetts 02459 | ||
Yun Ma*, a citizen of the Peoples Republic of China SoftBank Corp. 1-9-1 Higashi-Shimbashi, Minato-ku, Tokyo 105-7303 Japan |
Chairman of Alibaba Group Holding Limited, an online shopping sites operator | Alibaba Group Holding Limited Hangzhou Office 18-19/F Xihu International Building A 391 Wen Er Road Hangzhou 310013 Peoples Republic of China | ||
Tadashi Yanai*, a citizen of Japan SoftBank Corp. 1-9-1 Higashi-Shimbashi, Minato-ku, Tokyo 105-7303 Japan |
Chairman, President & CEO of FAST RETAILING CO., LTD., a casualwear apparel business | FAST RETAILING CO., LTD. 717-1 Sayama, Yamaguchi City, Yamaguchi 754-0894, Japan | ||
Mark Schwartz*, a citizen of the United States of America SoftBank Corp. 1-9-1 Higashi-Shimbashi, Minato-ku, Tokyo 105-7303 Japan |
Vice Chairman of Goldman Sachs Group, Inc. and Chairman of Goldman Sachs Asia Pacific, global banking businesses | Goldman Sachs (Asia) LLC Cheung Kong Center, 68th Floor 2 Queenss Road Central Hong Kong | ||
Manabu Miyasaka*, a citizen of Japan SoftBank Corp. 1-9-1 Higashi-Shimbashi, Minato-ku, Tokyo 105-7303 Japan |
Representative Director and President of Yahoo Japan Corporation, an internet company | Yahoo Japan Corporation Midtown Tower 9-7-1 Akasaka Minato-ku, Tokyo 107-6211 Japan |
Name and Business Address |
Present Principal Occupation (principal business |
Name and Address of Corporation or Other | ||
Yoshimitsu Goto, a citizen of Japan SoftBank Corp. 1-9-1 Higashi-Shimbashi, Minato-ku, Tokyo 105-7303 Japan |
Executive Corporate Officer of SoftBank Corp. | |||
Fumihiro Aono, a citizen of Japan SoftBank Corp. 1-9-1 Higashi-Shimbashi, Minato-ku, Tokyo 105-7303 Japan |
Corporate Officer of SoftBank Corp. | |||
Masato Suzaki, a citizen of Japan SoftBank Corp. 1-9-1 Higashi-Shimbashi, Minato-ku, Tokyo 105-7303 Japan |
Corporate Officer of SoftBank Corp. | |||
Kazuko Kimiwada, a citizen of Japan SoftBank Corp. 1-9-1 Higashi-Shimbashi, Minato-ku, Tokyo 105-7303 Japan |
Corporate Officer of SoftBank Corp. | |||
Mitsuo Sano**, a citizen of Japan SoftBank Corp. 1-9-1 Higashi-Shimbashi, Minato-ku, Tokyo 105-7303 Japan |
Full-time Corporate Auditor of SoftBank Corp. | |||
Soichiro Uno**, a citizen of Japan SoftBank Corp. 1-9-1 Higashi-Shimbashi, Minato-ku, Tokyo 105-7303 Japan |
Partner at Nagashima Ohno & Tsunematsu, an international law firm | Nagashima Ohno & Tsunematsu Kioicho Building, 3-12, Kioicho, Chiyoda-ku, Tokyo 102-0094 Japan | ||
Kouichi Shibayama**, a citizen of Japan SoftBank Corp. 1-9-1 Higashi-Shimbashi, Minato-ku, Tokyo 105-7303 Japan |
Advisor at Zeirishi-Hojin PricewaterhouseCoopers, an international accounting firm | Zeirishi-Hojin PricewaterhouseCoopers Kasumigaseki Bldg. 15F, 2-5 Kasumigaseki 3-chome, Chiyoda-ku, Tokyo 100-6015 Japan | ||
Hidekazu Kubokawa**, a citizen of Japan SoftBank Corp. 1-9-1 Higashi-Shimbashi, Minato-ku, Tokyo105-7303 Japan |
Representative Partner at Yotsuya Partners Accounting Firm | Yotsuya Partners Accounting Firm 4F, 3-7 Yotsuya, Shinjuku-ku, Tokyo 160-0004 Japan |
* | Director |
** | Corporate Auditor |
Appendix A-2
EXECUTIVE OFFICERS AND DIRECTORS
OF
STARBURST I, INC.
Set forth below is a list of each executive officer and director of Starburst I, Inc. setting forth the business address and present principal occupation or employment (and the name and address of any corporation or organization in which such employment is conducted) of each person. Unless otherwise indicated, each individual is a United States citizen.
Name and Business Address |
Present Principal Occupation (principal business |
Name and Address of Corporation or Other | ||
Ronald D. Fisher* **, a citizen of the United States Starburst I, Inc. One Circle Star Way San Carlos, California 94070 |
Director and President of SoftBank Holdings Inc., a wholly owned subsidiary of SoftBank Corp. | SoftBank Holdings Inc. 38 Glen Avenue Newton, Massachusetts 02459 | ||
Steven J. Murray* ***, a citizen of the United States Starburst I, Inc. One Circle Star Way San Carlos, California 94070 |
Partner, SoftBank Capital, a venture capital organization affiliated with the SoftBank Group |
SoftBank Capital 38 Glen Avenue Newton, Massachusetts 02459 |
* | Director |
** | President |
*** | Secretary and Treasurer |
Appendix A-3
EXECUTIVE OFFICERS AND DIRECTORS
OF
GALAXY INVESTMENT HOLDINGS, INC.
Set forth below is a list of each executive officer and director of Galaxy Investment Holdings, Inc. setting forth the business address and present principal occupation or employment (and the name and address of any corporation or organization in which such employment is conducted) of each person.
Name and Business Address |
Present Principal Occupation (principal business |
Name and Address of Corporation or Other | ||
Katsumasa Niki* **, a citizen of Japan Galaxy Investment Holdings, Inc. One Circle Star Way San Carlos, California 94070 |
Group Manager of the Finance Department of SoftBank Corp. | SoftBank Corp. 1-9-1 Higashi-Shimbashi, Minato-ku, Tokyo 105-7303 Japan |
* | Director |
** | President, Secretary and Treasurer |
EXHIBIT INDEX
Exhibit |
Description | |
99.1 | Joint Filing Agreement, dated as of August 5, 2013, by and between SoftBank Corp., Starburst I, Inc. and Galaxy Investment Holdings, Inc. (incorporated herein by reference to Exhibit 99.1 of the Schedule 13D Amendment filed by SoftBank Corp., Starburst I, Inc., and Galaxy Investment Holdings, Inc. filed August 6, 2013). | |
99.2 | Agreement and Plan of Merger, dated as of October 15, 2012, by and among Sprint Nextel Corporation, SoftBank Corp., Starburst I, Inc., Sprint Corporation (then known as Starburst II, Inc.) and Starburst III, Inc. (included as part of Annex A beginning on page Annex A-1 to the Proxy Statement-Prospectus of Sprint Corporation filed May 1, 2013 and incorporated herein by reference) (File No. 333-186448). | |
99.3 | First Amendment to Agreement and Plan of Merger, dated as of October 15, 2012, entered into as of November 29, 2012, by and among Sprint Nextel Corporation, SoftBank Corp., Starburst I, Inc., Sprint Corporation (then known as Starburst II, Inc.) and Starburst III, Inc. (included as part of Annex A beginning on page Annex A-132 to the Proxy Statement-Prospectus of Sprint Corporation filed May 1, 2013 and incorporated herein by reference) (File No. 333-186448). | |
99.4 | Second Amendment to Agreement and Plan of Merger, dated as of October 15, 2012, entered into as of April 12, 2013, by and among Sprint Nextel Corporation, SoftBank Corp., Starburst I, Inc., Sprint Corporation (then known as Starburst II, Inc.) and Starburst III, Inc. (included as part of Annex A beginning on page Annex A-134 to the Proxy Statement-Prospectus of Sprint Corporation filed May 1, 2013 and incorporated herein by reference) (File No. 333-186448). | |
99.5 | Third Amendment to Agreement and Plan of Merger, dated as of October 15, 2012, entered into as of June 10, 2013, by and among Sprint Nextel Corporation, SoftBank Corp., Starburst I, Inc., Sprint Corporation (then known as Starburst II, Inc.) and Starburst III, Inc. (incorporated herein by reference to Exhibit 2.1 of Sprint Corporations Current Report on Form 8-K filed June 11, 2013) (File No. 333-186448). | |
99.6 | Warrant Agreement for Sprint Corporation Common Stock, dated as of July 10, 2013 (incorporated herein by reference to Exhibit 10.6 of Sprint Corporations Current Report on Form 8-K filed July 11, 2013) (File No. 001-04721). | |
99.7 | Amended and Restated Certificate of Incorporation of Sprint Corporation (incorporated herein by reference to Exhibit 3.1 of Sprint Corporations Current Report on Form 8-K filed July 11, 2013) (File No. 001-04721). | |
99.8 | 10b-18 Purchase Agreement, dated as of August 1, 2013, by and between Galaxy Investment Holdings, Inc. and J.P. Morgan Securities LLC (incorporated herein by reference to Exhibit 99.8 of the Schedule 13D Amendment filed by SoftBank Corp., Starburst I, Inc., and Galaxy Investment Holdings, Inc. filed August 6, 2013). | |
99.9 | Power of Attorney, dated as of August 5, 2013, executed by Masayoshi Son (incorporated herein by reference to Exhibit 99.9 of the Schedule 13D Amendment filed by SoftBank Corp., Starburst I, Inc., and Galaxy Investment Holdings, Inc. filed August 6, 2013). | |
99.10 | Power of Attorney, dated as of August 5, 2013, executed by Ronald D. Fisher (incorporated herein by reference to Exhibit 99.10 of the Schedule 13D Amendment filed by SoftBank Corp., Starburst I, Inc., and Galaxy Investment Holdings, Inc. filed August 6, 2013). | |
99.11 | Power of Attorney, dated as of August 5, 2013, executed by Katsumasa Niki (incorporated herein by reference to Exhibit 99.11 of the Schedule 13D Amendment filed by SoftBank Corp., Starburst I, Inc., and Galaxy Investment Holdings, Inc. filed August 6, 2013). | |
99.12* | 10b5-1/10b-18 Purchase Plan Agreement, dated as of August 30, 2013, by and between Galaxy Investment Holdings, Inc. and J.P. Morgan Securities LLC. |
* | Filed herewith. |
Exhibit 99.12
10b5-1/10b-18 PURCHASE PLAN AGREEMENT
August 30, 2013
Galaxy Investment Holdings, Inc.
1209 Orange Street
Wilmington, DE 19801
This letter agreement (this Letter Agreement) confirms the terms and conditions under which Galaxy Investment Holdings, Inc. (the Purchaser) hereby establishes a plan (the Plan) to purchase shares of common stock, par value $0.01 (the Securities), of Sprint Corporation (the Issuer), and under which J.P. Morgan Securities LLC (JPMS) will act as its exclusive agent to execute the Plan.
1. | Appointment of JPMS. The Purchaser hereby appoints JPMS as its exclusive agent to purchase Securities on behalf of the Purchaser in the open market pursuant to the Plan. It is the Purchasers intention that such purchases benefit from the safe harbor provided by Rule 10b-18 (Rule 10b-18) and the affirmative defense provided by Rule 10b5-1 (Rule 10b5-1) each promulgated by the Securities and Exchange Commission (the SEC) under the Securities Exchange Act of 1934, as amended (the Exchange Act), and that the Plan and the transactions contemplated hereby comply with the requirements of paragraph (c)(1)(i)(B) of Rule 10b5-1, and the Purchaser acknowledges that the Purchaser may be an affiliated purchaser of the Issuer, as such term is defined in Rule 10b-18. Accordingly, the Purchaser hereby agrees that the terms of this Letter Agreement and the Plan shall be interpreted to comply with the requirements of such paragraph (c)(1)(i)(B) and that it shall not take, nor permit any person or entity under its control to take, any action that could jeopardize the availability of Rule 10b-18 for purchases of Securities under the Plan or result in such purchases not so complying with the requirements of such paragraph (c)(1)(i)(B). JPMS agrees that it shall use good faith efforts to execute all purchases of Securities under this Letter Agreement in accordance with the timing, price and volume restrictions contained in subparagraphs (2), (3) and (4) of paragraph (b) of Rule 10b-18, taking into account the rules and practices of the principal exchange on which the Securities are traded (the Principal Market), it being understood that, except for any willful misconduct, bad faith or gross negligence on the part of JPMS, JPMS shall not be responsible for delays between the execution and reporting of a trade in the Securities, any reporting errors of the Principal Market or third party reporting systems or other circumstances beyond JPMSs control. |
2. | Term. |
(a) | JPMS is authorized to commence purchasing Securities on the date that is the sixth (6th) Trading Day after the execution of this Letter Agreement (the Start Date), and this Letter Agreement and the Plan shall terminate upon the earliest of (the period from and including the Start Date to such termination, the Plan Period): |
(i) | the one-year anniversary of the date hereof; |
(ii) | the completion of all purchases contemplated by the Plan; |
(iii) | subject to Section 11 below, the receipt by either party from the other of written notice of termination; |
(iv) | the existence of any legal or regulatory restriction that would prohibit any purchase pursuant to the Plan; |
(v) | the public announcement (as defined in Rule 165(f) under the Securities Act of 1933, as amended) of any merger, acquisition, or similar transaction relating to the Issuer (other than any such transaction in which the Issuer is the acquiring party and the consideration consists solely of cash and there is no valuation period); |
(vi) | the commencement of any voluntary or involuntary case or other proceeding seeking liquidation, reorganization or other relief with respect to the Issuer or the Purchaser under any bankruptcy, insolvency or similar law or seeking the appointment of a trustee, receiver or other similar official with respect to the Issuer or the Purchaser, or the taking of any corporate action by the Issuer or the Purchaser to authorize or commence any of the foregoing; and |
(vii) | the failure of the Purchaser to comply with Section 7 hereof. |
(b) | If, as contemplated by paragraph (a)(iv) of this Section 2, at any time during the term of this Letter Agreement, any legal or regulatory restriction that is applicable to the Issuer, the Purchaser or the affiliates of the Issuer or the Purchaser would prohibit any purchase pursuant to the Plan, the Purchaser shall give JPMS notice of such restriction as soon as practicable (such notice, a Required Termination Notice). Such notice shall not include any information about the nature of the restriction or its applicability to the relevant entity. |
(c) | The Purchaser shall be solely responsible for any purchases made by JPMS as the Purchasers agent prior to the termination of the Plan. In addition, if JPMS receives notice of termination (including any Required Termination Notice) or of any of the termination events listed above, JPMS shall nevertheless be entitled to make, and the Purchaser shall be solely responsible for, a purchase hereunder pursuant to a bid made before such notice was received by JPMS except to the extent such bid is cancelable by JPMS prior to its execution. |
(d) | Sections 7 and 11 of this Letter Agreement shall survive any termination hereof. |
3. | Purchases Outside Plan. The Purchaser agrees that it shall not, and shall cause SoftBank Corp. and any of its controlled subsidiaries or affiliates not to (i) directly or indirectly purchase, offer to purchase or place any bid or limit order for the purchase of any Securities or any securities convertible or exchangeable into or exercisable for, or the value of which is derived from, the Securities during the Plan Period except under the Plan pursuant to this Letter Agreement or the 10b-18 Purchase Agreement (Non-Exclusive) between the Purchaser and JPMS dated August 1, 2013 (the 10b-18 Agreement), or (ii) enter into any similar purchase plan (other than the Rule 10b-18 Agreement) or any derivative transaction, accelerated share repurchase transaction or other transaction with a purchase period, valuation period, calculation period or similar period during which the Purchasers counterparty to such plan or transaction could reasonably be expected to purchase Securities, which period overlaps with the Plan Period. If the Purchaser becomes aware that SoftBank Corp. or any of its controlled subsidiaries or affiliates has taken any such action during the Plan Period, the Purchaser shall so notify JPMS as soon as practicable. For purposes of this Letter Agreement, the terms controlled subsidiaries and affiliates shall be expressly understood to not include Sprint Corporation, Yahoo Japan Corporation or their respective subsidiaries. The Purchaser agrees that it will elect to terminate this Letter Agreement pursuant to Paragraph 10 should Sprint Corporation, Yahoo Japan Corporation or their respective subsidiaries take any action contemplated in this Section during the Plan Period. |
4. | Purchasing Procedures. |
(a) On each Trading Day during the Plan Period on which no Market Disruption Event (as defined below) occurs, JPMS shall use commercially reasonable efforts to purchase as agent for the Purchaser and for the account of the Purchaser the lesser of (i) the maximum number of Securities that the Purchaser could purchase on such Trading Day in accordance with the volume condition set forth in Rule 10b-18 and (ii) the number of Securities that JPMS is able, subject to market conditions and principles of best execution, to purchase as agent for the Purchaser and for the account of the Purchaser on such Trading Day using commercially reasonable means in accordance with the Plan guidelines set forth in Annex A hereto. JPMS may purchase Securities on the Principal Market, any national securities exchange, in the over-the-counter market, on an automated trading system or otherwise. Any numbers of Securities to be purchased (and any corresponding purchase price limits or ranges) set forth in Annex A shall be adjusted automatically on a proportionate basis to take into account any stock split, reverse stock split or stock dividend with respect to the Securities or any change in capitalization with respect to the Issuer or any similar event that occurs during the term of this Letter Agreement, as determined by JPMS in good faith and a commercially reasonable manner.
A Trading Day is any day during the Plan Period that the Principal Market is open for business and the Securities trade regular way on the Principal Market.
2
Market Disruption Event means that (i) there occurs any material (as reasonably determined by JPMS) suspension of or limitation on trading by the Principal Market, (ii) there occurs any event that materially (as reasonably determined by JPMS) disrupts or impairs the ability of market participants in general to effect transactions in or obtain market values for the Securities or futures or options contracts on the Securities or (iii) the Principal Market closes prior to its scheduled closing time for such trading day.
(b) In the event that JPMS, in its discretion, determines that it is appropriate with regard to any legal, regulatory or self-regulatory requirements or related internal policies and procedures (whether or not such requirements, policies or procedures are imposed by law or have been voluntarily adopted by JPMS) for JPMS to refrain from purchasing Securities or to purchase fewer than the number of Securities otherwise specified in the instructions provided by the Purchaser on any day, then JPMS may, in its sole discretion, elect that the number of Securities purchased shall be reduced for such day to an amount determined by JPMS in its discretion.
(c) Any Securities purchased pursuant to the Plan shall be purchased under ordinary principles of best execution at the then-prevailing market price. Subject to the terms of the Plan as set forth herein (including Annex A hereto), JPMS shall have full discretion with respect to the execution of all purchases, and the Purchaser acknowledges and agrees that the Purchaser does not have, and shall not attempt to exercise, any influence over how, when or whether purchases of Securities are affected pursuant to the Plan. The Purchaser acknowledges and agrees that, in purchasing Securities pursuant to the Plan, JPMS will be an independent contractor and will not be acting as the Purchasers trustee or fiduciary or in any similar capacity. JPMS agrees that no person who exercises influence, directly or indirectly, on its behalf in effecting purchases of Securities pursuant to this Letter Agreement may do so while aware of material, non-public information relating to the Securities or the Issuer.
5. | Payment for and Delivery of Purchased Securities; Monitoring Procedures. Payment for Securities purchased, together with any applicable fees, shall be made by the Purchaser within one standard settlement cycle after the purchase. Purchased Securities will be held or delivered in accordance with instructions to be furnished by the Purchaser. On any day on which JPMS purchases Securities hereunder, JPMS shall provide a daily email report confirming purchases of Securities to the Purchaser and to such other persons or agents of the Purchaser as the Purchaser shall designate. Such report shall include the specific price and number of shares purchased at each such specific price for the Purchaser and for affiliated purchasers. |
6. | Compensation. For the services provided in this Letter Agreement, the Purchaser agrees to pay to JPMS a fee of $0.02 per share for the Securities purchased pursuant to the terms of this Letter Agreement. |
7. | Representations, Warranties and Agreements. The Purchaser represents and warrants to, and agrees with, JPMS as follows: |
(a) This Letter Agreement and the transactions contemplated herein have been duly authorized by the Purchaser and have been reviewed, to the extent required, pursuant to or under any and all applicable policies and procedures of the Issuer applicable to purchases of Securities by its affiliated purchasers; this Letter Agreement is the valid and binding agreement of the Purchaser, enforceable in accordance with its terms, except as the enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to or affecting the rights and remedies of creditors or by general equitable principles and except as rights to indemnification as may be limited by applicable law; performance of the transactions contemplated herein will not violate any law, rule, regulation, order, judgment or decree applicable to the Purchaser or conflict with or result in a breach of or constitute a default under any agreement or instrument to which the Purchaser is a party or by which it or any of its property is bound or its certificate of incorporation or by-laws; and no governmental, administrative or official consent, approval or authorization is required for performance of the transactions contemplated herein.
(b) As of the date of this Letter Agreement, the Purchaser is not aware of any material nonpublic information concerning the Securities or the business, operations or prospects of the Issuer.
3
(c) The Purchaser is engaging JPMS and entering into this Letter Agreement and the Plan in good faith and not as part of a plan or scheme to evade compliance with the federal securities laws, including, without limitation, Rule 10b-5 under the Exchange Act. Until this Letter Agreement is terminated, the Purchaser agrees not to enter into or alter any corresponding or hedging transaction or position with respect to the Securities.
(d) The Purchaser is not entering into this Letter Agreement to create actual or apparent trading activity in the Securities (or any security convertible into or exchangeable for the Securities) or to raise or depress the price of the Securities (or any security convertible into or exchangeable for the Securities) for the purpose of inducing others to buy or sell Securities, and will not engage in any other securities or derivative transaction to such ends.
(e) During the term of this Letter Agreement, neither the Purchaser nor its officers or employees shall, directly or indirectly, disclose to any person at JPMS effecting purchases under the Plan any material nonpublic information regarding the Issuer or the Securities or any information regarding the Issuer or the Securities that could reasonably be expected to influence the execution of the Plan.
(f) The Purchaser acknowledges that JPMS is a financial institution and financial participant within the meaning of Sections 101(22) and 101(22A), respectively, of Title 11 of the United States Code (the Bankruptcy Code). The parties hereto further agree and acknowledge that each transaction under this Letter Agreement is intended to be a securities contract as defined in Section 741(7) of the Bankruptcy Code and each payment or delivery of cash, Securities or other property or assets hereunder is a settlement payment within the meaning of Section 741(8) of the Bankruptcy Code, and the parties hereto are to be entitled to the protections afforded by, among other Sections, Sections 362(b)(6), 362(b)(27), 362(o), 546(e), 546(j), 555 and 561 of the Bankruptcy Code.
(g) Prior to 8:00 a.m., New York City time on the Start Date, the Purchaser shall provide to JPMS all information, other than publicly reported trading volumes, as may be reasonably requested by JPMS that is necessary for JPMS to calculate the maximum number of Securities that may be purchased as of the Start Date in accordance with the volume condition set forth in Rule 10b-18, and JPMS shall be entitled to rely on such information so provided.
(h) The Purchaser shall not, and shall cause SoftBank Corp. and its controlled subsidiaries and affiliates not to, take any action that would cause Regulation M under the Exchange Act (Regulation M) to be applicable to any purchases of Securities, or any security for which the Securities are a reference security (as defined in Regulation M), by the Purchaser during the Plan Period. The Purchaser agrees that it will elect to terminate this Letter Agreement pursuant to Paragraph 10 should Sprint Corporation, Yahoo Japan Corporation or their respective subsidiaries take any action contemplated in this Section during the Plan Period.
(i) The Purchaser shall be solely responsible for compliance with all statutes, rules and regulations applicable to the Purchaser and the transactions contemplated hereby, including, without limitation, reporting and filing requirements. The Purchaser acknowledges and agrees that it is not relying, and has not relied, upon JPMS or any affiliate of JPMS with respect to the legal, accounting, tax or other implications of the Plan and the transactions contemplated thereby and that it has conducted its own analyses of the legal, accounting, tax and other implications hereof. JPMS has made no representation and has no obligation with respect to whether the Plan or the transactions contemplated thereunder qualify for the safe harbor provided by Rule 10b-18 or the affirmative defense provided by Rule 10b5-1.
8. | Disclosure of Acquisition Program. The Purchaser represents and warrants that it will publicly disclosed the acquisition of the Securities, as required, in accordance with Section 13 and Section 16 of the Exchange Act. |
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9. | Other Purchases by JPMS. Nothing herein shall preclude the purchase by JPMS of Securities for JPMSs own account, or the solicitation or execution of purchase or sale orders of Securities for the account of JPMSs clients. |
10. | Amendment, Modification, Waiver or Termination. Any amendment, modification, waiver or termination of this Letter Agreement or the Plan, including without limitation any election by the Purchaser to terminate this Letter Agreement or the Plan, must be effected in accordance with the requirements for the amendment or termination of a plan as defined in paragraph (c) of Rule 10b5-1. Without limiting the generality of the foregoing, any such amendment, modification, waiver or termination shall be made in good faith and not as part of a plan or scheme to evade the prohibitions of Rule 10b-5 under the Exchange Act, and no such amendment, modification or waiver shall be made at any time at which the Purchaser is aware of any material nonpublic information concerning the Issuer or the Securities. The Purchaser acknowledges and agrees that any action taken by it that results in the termination of the Plan pursuant to Section 2 is subject to the principles set forth in this section. |
11. | Notices. Any written communication shall be sent to the address specified below: and shall become effective upon receipt: |
(a) | if to JPMS, to it at |
J.P. Morgan Securities LLC
383 Madison Avenue, 5th Floor
New York, NY 10179
Attention: James F. Smith
Telephone: (212) 622-2922 Fax: (917) 464-8885
or at such other address as may from time to time be designated by notice to the Purchaser in writing; and
(b) | if to the Purchaser, to it at |
SoftBank Capital
38 Glen Avenue
Newtown Center, MA 02549
Attn: Josh Lubov
Email: josh_lubov@softbank.com
Telephone: (617) 558-6715 Fax: (617) 928-9302
or at such other address as may from time to time be designated by notice to JPMS in writing.
12. | [Intentionally omitted.] |
13. | Assignment. Neither party may assign its rights and obligations under this Letter Agreement to any other party; provided that JPMS may assign its rights and obligations under this Letter Agreement to any subsidiary of J.P. Morgan Chase & Co. |
14. | Governing Law. This Letter Agreement and any claim relating hereto shall be governed by and construed in accordance with the law of the State of New York. The parties hereto irrevocably submit to the non-exclusive jurisdiction of the Federal and state courts located in the Borough of Manhattan, in the City of New York in any suit or proceeding arising out of or relating to this Letter Agreement or the transactions contemplated hereby. EACH PARTY HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHTS TO TRIAL BY JURY WITH RESPECT TO ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS LETTER AGREEMENT OR ANY TRANSACTION CONTEMPLATED HEREBY. |
15. | This Letter Agreement may be executed in several counterparts, each of which shall be regarded as an original and all of which shall constitute one and the same document. |
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If the foregoing correctly sets forth our agreement, please sign the form of acceptance below.
J.P. MORGAN SECURITIES LLC | ||||
By: | /s/ James F. Smith | |||
Name: | James F. Smith | |||
Title: | Managing Director |
Agreed to and accepted as of: | ||||
GALAXY INVESTMENT HOLDINGS, INC. | ||||
By: | /s/ Katsumasa Niki | |||
Name: | Katsumasa Niki | |||
Title: | President |
Annex A
Price Range |
Purchases1 based on % of composite trading volume |
Additional Purchases1 if Sprint is trading below the 5 Day Moving Average |
Total Purchases1 | |||
Above 11.00 |
up to 1% | up to 1% additional | up to 2% | |||
9.00 to 10.99 |
up to 2% | up to 2% additional | up to 4% | |||
8.00 to 8.99 |
up to 3% | up to 3% additional | up to 6% | |||
7.50 to 7.99 |
up to 5% | up to 4% additional | up to 9% | |||
7.00 to 7.49 |
up to 10% | up to 4% additional | up to 14% | |||
6.75 to 6.99 |
up to 15% | up to 5% additional | up to 20% | |||
6.50 to 6.74 |
up to 20% | up to 5% additional | up to 25% | |||
6.25 to 6.49 |
up to 30% | up to 7.5% additional | up to 37.5% | |||
6.00 to 6.24 |
up to 40% | up to 10% additional | up to 50% | |||
Below 6.00 |
10b-18 maximum |
The above share percentages for maximum daily repurchase limits are to be followed on a trade-by-trade basis. If during the day the stock price increases to a higher price category, as set forth above, purchases must cease, if the maximum percentage for that limit price has already been purchased. If during the trading day the stock price falls to a lower price category, as set forth above, purchases may resume, subject to the maximum daily amount for the lower price, which shall be aggregated with any prior purchases for such trading day. Notwithstanding anything in this Annex A to the contrary, in all circumstances JPMS will make such purchases pursuant to the safe harbor provided by Rule 10b-18.
1. | The aggregate maximum number of Securities to be purchased following the execution of the Plan may not exceed the lesser of (i) 33,160,922 shares or (ii) such number of shares that result in an aggregate purchase price of $95,582,294.10 inclusive of all fees, commissions and other expenses related thereto. |
A-1