CONFIDENTIAL SETTLEMENT MATERIALS
PROTECTED BY FEDERAL RULE EVID. 408
AND DELAWARE RULE EVID. 408
SPRINT/SHENANDOAH FORBEARANCE AGREEMENT
Exhibit 99.1
THIS
FORBEARANCE AGREEMENT, dated August 9, 2005 (this "Agreement"),
is
made and entered into by and among Sprint
Corporation, Sprint Spectrum L.P.,
WirelessCo L.P., Sprint Communications
Company L.P., Sprint Telephony PCS, L.P.,
APC PCS, LLC, PhillieCo, L.P., and Sprint
PCS License, L.L.C. (collectively,
"Sprint"); and Shenandoah Personal
Communications Company (the "Affiliate").
RECITALS
A. Affiliate and
certain of the Sprint entities referenced above are
parties to a Sprint PCS Management
Agreement, dated as of November 5, 1999, as
amended (the "Management Agreement").
B. On
December 15, 2004, Sprint Corporation, Nextel Communications,
Inc.
("Nextel") and S-N Merger Corp. entered
into an Agreement and Plan of Merger,
pursuant to which Nextel will merge and
into S-N Merger Corp. and become a
wholly owned subsidiary of Sprint
Corporation (the "Sprint Nextel Merger").
C. The
parties are entering into this Agreement to set forth the
Affiliate's agreement to forbear from
pursuing claims against Sprint and its
Subsidiaries and Related Parties during the
period of time that this Agreement
remains in effect and not to seek certain
injunctive relief under certain
circumstances during the period of time
that this Agreement remains in effect
and to outline certain actions not to be
taken by Sprint and its Subsidiaries
and Related Parties following the
completion of the Sprint Nextel Merger during
the period of time that this Agreement
remains in effect.
D. On the
date of the Sprint Nextel Merger, Nextel will become a
subsidiary of Sprint Corporation, and
Sprint Corporation will change its name to
"Sprint Nextel Corporation." The terms
"Sprint Corporation" and "Sprint" as used
in this Agreement will also refer to Sprint
Nextel Corporation following the
Sprint Nextel Merger.
AGREEMENT
In
consideration of the recitals and mutual covenants and
agreements
contained in this Agreement, the
sufficiency of which consideration is hereby
acknowledged, the parties, intending to be
bound, agree as follows:
ARTICLE I
DEFINITIONS
Section 1.1
Certain Definitions. The following terms are used in this
Agreement with the meanings assigned
below:
<PAGE>
"Affiliate
Group" means employees of Sprint Corporation and its
Subsidiaries who are housed in and work out
of (a) the Affiliate Relations
Group, (b) the Affiliate/PLS-Plan &
Strategy Group or (c) the
Affiliate/PLS-Client Service/Technology
Group, each as currently structured
within Sprint Corporation. For purposes of
clarification, each of the groups
currently reports to David Bottoms, Vice
President-Strategic Partners. The term
"Affiliate Group" also refers to any
successor group of employees to those
groups referenced above that may result
from any internal management
restructuring within Sprint Corporation and
its Subsidiaries or Related Parties.
"CDMA
Customers" means subscribers of products and services offered
by
Sprint PCS and Sprint PCS Affiliates using
the CDMA Network whose account is
assigned to the Service Area.
"CDMA
Network" means the national wireless network owned and operated
by
Sprint, the Affiliate and the other Sprint
PCS Affiliates providing services
using code division multiple access
technology.
"CDMA
Products and Services" means products and services operating on
the
CDMA Network.
"iDEN Customers"
means Nextel customers located in the Service Area who
are using iDEN Products and Services.
"iDEN
Network" means the national integrated digital enhanced network
owned and operated by Nextel and its
Related Parties on the date of the Sprint
Nextel Merger.
"iDEN
Products and Services" means Nextel products and services
operating
on the iDEN Network.
"Local
Media" means (a) a print publication that is primarily
distributed
within the Service Area, (b) a radio or
television station that primarily
broadcasts into the Service Area or (c) a
billboard or other physical
advertising presence in the Service
Area.
"Service
Area" has the meaning set forth in the Management Agreement,
which for the avoidance of doubt shall mean
the aggregate of the Service Area
defined and described in each of the
Management Agreement.
"Sprint
PCS Affiliate" means the Affiliate and the Other Managers.
"Subsidiary" of any Person as of any relevant date means any
corporation
or other entity of which such Person owns
or controls, directly or indirectly, a
majority of the outstanding voting
securities or other ownership interests,
provided that Nextel Partners, Inc. will
not be deemed a Subsidiary of Sprint
for purposes of this Agreement until Sprint
or any of its Related Parties at any
time owns or controls, directly or
indirectly, 50% or more of the voting
securities or other ownership interests of
Nextel Partners (as defined in
Section 2.10(a)).
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<PAGE>
Section
1.2 Management Agreement. Capitalized terms used but not
defined
herein have the meanings assigned to them
in the Management Agreement.
ARTICLE II
COVENANTS BY SPRINT
Section
2.1 Preservation of Confidential Information.
(a) Marketing. Sprint will not allow any proposed marketing and
advertising campaign materials, proposed
service plans, or proposed credit
policies provided by the Affiliate to
Sprint to be reviewed by employees of
Sprint Corporation and its Subsidiaries or
Related Parties other than the
Affiliate Group and employees with direct
responsibility for implementing such
materials, plans or policies and/or
reviewing such materials, plans or policies
for compliance with the Trademark License
Agreements, the Marketing
Communication Guidelines or other
applicable provisions of the Management
Agreement (who will not use the information
for any other purpose).
(b) Billing. Sprint will not (i) make billing systems
containing
data relating to CDMA Customers (e.g.,
Convergis/P2K) available to employees of
Sprint Corporation or its Subsidiaries or
Related Parties in any retail store
location, sales channel, sales office
(except national account managers who do
not directly engage in marketing or sales
efforts with national accounts
headquartered in the Service Area for iDEN
Products and Services in the Service
Area) or administrative office that offers,
supports or is involved with iDEN
Products and Services in the Service Area,
and agrees not to share any such data
with any such employees, or (ii) provide
any billing inserts or similar types of
communications reflecting or otherwise
referring to the Sprint Nextel Merger or
any resulting brand change to CDMA
Customers or iDEN Customers in the Service
Area that are designed to induce or
encourage, or could reasonably be expected
to induce or encourage, CDMA Customers to
switch to iDEN Products and Services
(except for de minimis amounts that do not
have a detrimental competitive impact
on the Affiliate's business).
(c) Customer Care and Telemarketing. (i) Sprint will maintain a
process of identifying and directing to
designated customer service
representatives CDMA Customers and iDEN
Customers who call Sprint for customer
care services. Any CDMA Customer mistakenly
directed to a customer care
representative designated to service iDEN
Customers will be transferred to a
customer care representative designated to
service CDMA Customers. Any iDEN
Customer mistakenly directed to a customer
care representative designated to
service CDMA Customers will be transferred
to a customer care representative
designated to service iDEN Customers.
Sprint agrees to make the details of such
process available to the Affiliate upon
request. Notwithstanding the foregoing,
Sprint will have certain customer care
representatives who are permitted to
access information regarding both CDMA
Customers and iDEN Customers for the sole
purpose of serving customers who use both
CDMA Products and Services and iDEN
Products and Services so long as such
customer care representatives are not
engaged in marketing or selling iDEN
Products and Services to CDMA Customers.
Customer care representatives shall be
permitted to make arrangements to provide
either iDEN or CDMA
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<PAGE>
handsets, upon request, to existing CDMA
Customers and existing iDEN Customers
requesting them.
(ii) Any customer care representative advised that a CDMA
Customer desires to terminate its use of
CDMA Products and Services will first
seek to convince such CDMA Customer to
continue its use of CDMA Products and
Services. If such efforts are unsuccessful,
the representative may seek to sell
iDEN Products and Services to such
customers. The converse process will apply
for any iDEN Customer seeking to terminate
its use of iDEN Products and
Services. Sprint agrees to provide to the
Affiliate, at least as frequently as
current practice (or, if there is no such
current practice, at least every two
weeks), a detailed report setting forth the
CDMA Customers in the Service Area
who have terminated the use of CDMA
Products and Services and have purchased
iDEN Products and Services.
(iii) Sprint and its Subsidiaries will not waive or reduce
termination fees as compared to current
levels in order to facilitate any CDMA
Customer in the Service Area transferring
from CDMA Products and Services to
iDEN Products and Services.
(d) Subscriber and Financial Data. Affiliate-specific information
in
Sprint's EMIS System (or any successor
system) will only be able to be accessed
by the Affiliate Group. Other subscriber
and financial information provided by
the Affiliate to Sprint (or otherwise
generated by Sprint or any other party and
relating to the Affiliate) will only be
available to the Affiliate Group and
other employees and consultants of Sprint
Corporation and its Related Parties in
the ordinary course of business consistent
with past practice, unless such
information is aggregated with subscriber
and financial information of the other
Sprint PCS Affiliates on a basis that does
not permit identification of the
Affiliate-specific information; provided
that in no event will any such
information be used by any such employee or
consultant in a manner that
adversely affects the competitive position
of the CDMA Products and Services in
relation to the iDEN Products and Services
in the Service Area. Sprint will not
make any external or public disclosure of
the Affiliate's subscriber and
financial information, unless such
information is aggregated with subscriber and
financial information of the other Sprint
PCS Affiliates on a basis that does
not permit identification of the
Affiliate-specific information.
(e) Network Performance. Sprint will not allow network
performance
data and Format C reports provided by the
Affiliate to Sprint (or otherwise
generated by Sprint or any other party and
relating to the Affiliate) to be
reviewed by employees of, or consultants
to, Sprint Corporation and its
Subsidiaries or Related Parties other than
the Affiliate Group and employees
whose function relates primarily to CDMA
Network performance (who will not use
the information for any other purpose),
unless such information is aggregated
with information from the other Sprint PCS
Affiliates on a basis that does not
permit identification of the
Affiliate-specific information. However, Sprint
will be permitted to use Format C reports
provided by the Affiliate (or
otherwise generated by Sprint and relating
to the Affiliate) to update coverage
maps and to disclose such coverage maps
consistent with past practice.
(f) Handset Logistics. Sprint will not allow handset logistical
data
and related forecasts provided by the
Affiliate to Sprint (or otherwise
generated by Sprint or any other party and
relating to the Affiliate) to be
reviewed and used by employees of, or
consultants to, Sprint Corporation and its
Subsidiaries or Related Parties other than
the Affiliate Group and employees
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<PAGE>
whose function relates primarily or is
necessary to the procurement of handsets
(who will not use the information for any
other purpose), unless such
information is aggregated with handset
logistical data and related forecasts of
the other Sprint PCS Affiliates on a basis
that does not permit identification
of the Affiliate-specific information.
(g) Business Forecasts. Sprint will not allow business forecast
data
provided by the Affiliate to Sprint (or
otherwise generated by Sprint or any
other party and relating to the Affiliate)
to be reviewed by employees of, or
consultants to, Sprint Corporation and its
Subsidiaries or Related Parties other
than the Affiliate Group and employees who
need to have such information for
operational reasons (e.g., determining
capacity needs for shared network
elements), who will not use the information
for any other purpose. However, such
data may be reviewed by other employees
after it has been aggregated with data
of the other Sprint PCS Affiliates on a
basis that does not permit
identification of the Affiliate-specific
information.
(h) Business Accounts Data. Sprint will not share any
information
regarding CDMA Customers' business accounts
with any consultants or with any
employees other than the Affiliate Group
and employees who need to have such
information for operational reasons (and
who will not use the information for
any other purpose). All CDMA Customers'
business accounts (other than national
accounts) shall only be serviced by the
Affiliate, and the CDMA service of
national accounts headquartered in the
Service Area shall continue to be
serviced by Sprint and the applicable
Affiliate consistent with past practice.
Section
2.2 CDMA Products and Services. Sprint and its Subsidiaries
will
not use the iDEN Network in the Service
Area or any spectrum in the Service Area
owned by Nextel or its Subsidiaries to
provide CDMA Products and Services. For
purposes of clarification, the parties
intend the above provision to apply
(without limitation) to the G block 1.9 GHz
spectrum to be obtained by Nextel,
in addition to Nextel's other spectrum.
Section
2.3 Dual Mode Handsets. Sprint and its Subsidiaries will not
offer
or sell, directly or indirectly, any dual
mode CDMA/iDEN handsets in the Service
Area, nor will Sprint or its Subsidiaries
offer or sell, directly or indirectly,
any dual mode CDMA/iDEN handsets in any
areas nationwide other than the Service
Area unless such handsets are programmed to
use the Affiliate's CDMA Network in
the Service Area on the first priority
basis prior to using the iDEN Network in
the Service Area (i.e., all such handsets
shall "prefer" the Affiliate's CDMA
Network).
Section
2.4 Distribution. Sprint will no
