EXHIBIT 10.3
REGISTRATION RIGHTS AGREEMENT
Dated as of May 31, 2000
by and among
Prodigy Communications Corporation
SBC Communications Inc.
and
SBC Internet Communications Inc.
This REGISTRATION RIGHTS AGREEMENT (the "Agreement") is made and entered
into as of May 31, 2000, by and among Prodigy Communications Corporation, a
Delaware corporation ("Prodigy"), SBC Communications Inc. a Delaware corporation
("SBC") and SBC Internet Communications, Inc., a Delaware corporation and an
indirect wholly owned subsidiary of SBC ("SBC Sub").
RECITALS
WHEREAS, Prodigy, Prodigy Transition Corporation, a Delaware corporation
and a wholly owned subsidiary of Prodigy, Prodigy Communications Limited
Partnership, a Delaware limited partnership, SBC and SBC Sub have entered into
an Investment, Issuance, Contribution and Assumption Agreement, dated as of
November 19, 1999 and amended as of April 19, 2000 (the "Investment Agreement");
and
WHEREAS, pursuant to the Investment Agreement, SBC Sub received SBC Units
(as defined in the Investment Agreement), which are exchangeable into
Registrable Securities (as defined below) in accordance with the Restated
Certificate of Incorporation (as defined below), and the Investment Share (as
defined in the Investment Agreement), which is convertible into a Registrable
Security in accordance with the Restated Certificate of Incorporation; and
WHEREAS, Prodigy has agreed to provide the registration rights set forth in
this Agreement;
NOW THEREFORE, in consideration of the mutual covenants and undertakings
contained herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, and subject to and on the terms
and conditions herein set forth, the parties hereto agree as follows:
1. Definitions.
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Capitalized terms used but not defined in this Agreement shall have the
respective meanings assigned to such terms in the Investment Agreement. As used
in this Agreement, the following capitalized terms shall have the following
meanings:
"Amended and Restated By-Laws" means the Amended and Restated By-Laws of
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Prodigy as adopted on May 31, 2000.
"Class A Common Shares" shall mean the shares of Class A Common Stock, par
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value $.01 per share, of Prodigy.
"Demand Registration" shall have the meaning set forth in Section 2(a)
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hereof.
"Demand Registration Statement" shall have the meaning set forth in Section
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2(a) hereof.
"Effective Time" shall mean the date on which the SEC declares a
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Registration Statement effective or on which such Registration Statement
otherwise becomes effective.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as amended.
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"Indemnified Person" shall have the meaning set forth in Section 6(a)
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hereof.
"Investment Agreement" shall have the meaning set forth in the Recitals.
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"NASD Rules" shall mean the Rules of the National Association of Securities
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Dealers, Inc., as amended from time to time.
"Person" shall mean an individual, partnership, corporation, trust or
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unincorporated organization, or a government or agency or political subdivision
thereof.
"Piggyback Registration" shall have the meaning set forth in Section 3(a)
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hereof.
"Prodigy" shall have the meaning set forth in the Preamble.
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"Proposed Registration" shall have the meaning set forth in Section 3(a)
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hereof.
"Prospectus" shall mean the prospectus (including, without limitation, any
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preliminary prospectus, any final prospectus and any prospectus that discloses
information previously omitted from a prospectus filed as part of an effective
registration statement in reliance upon Rule 430A under the Securities Act)
included in a Registration Statement, as amended or supplemented by any
prospectus supplement with respect to the terms of the offering of any portion
of the Registrable Securities covered by such Registration Statement and by all
other amendments and supplements to such prospectus, including all material
incorporated by reference in such prospectus and all documents filed after the
date of such prospectus by Prodigy under the Exchange Act and incorporated by
reference therein.
"Registration Expenses" shall have the meaning set forth in Section 5(a)
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hereof.
"Registrable Securities" shall mean the Class A Common Shares issued to
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SBC, SBC Sub or any direct or indirect transferee of SBC or SBC Sub upon
conversion of shares of Class B Common Stock or in exchange for Units, from time
to time, together with any other Class A Common Shares owned by SBC, SBC Sub or
such transferee, provided that a security ceases to be a Registrable Security
when it is no longer a Restricted Security.
"Registration Statement" shall mean any registration statement of Prodigy
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which covers Registrable Securities pursuant to the provisions of this
Agreement, including the Prospectus, amendments and supplements to such
registration statement, including pre- and post-effective amendments, and all
exhibits and all material incorporated by reference in such registration
statement.
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"Restated Certificate of Incorporation" means the Restated Certificate of
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Incorporation of Prodigy as filed on May 31, 2000 with the Secretary of State of
the state of Delaware pursuant to the Delaware General Corporation Law.
"Restricted Security" shall mean any security unless and until:
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(i) a registration statement with respect to the sale of such security
shall have been declared effective under the Securities Act and such security
shall have been disposed of in accordance with such registration statement,
(ii) it is distributed to the public pursuant to Rule 144 (or any similar
provision then in force) under the Securities Act,
(iii) the provisions of Section 7(b) hereof apply, or
(iv) such security shall have been otherwise transferred pursuant to an
applicable exemption under the Securities Act, new certificates for such
security not bearing a legend restricting further transfer shall have been
delivered by Prodigy and such security shall be freely transferable to the
public without registration under the Securities Act.
"SBC" shall have the meaning set forth in the Preamble.
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"SBC Sub" shall have the meaning set forth in the Preamble.
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"Securities Act" shall mean the Securities Act of 1933, as amended.
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"SEC" shall mean the Securities and Exchange Commission.
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"underwritten", "underwritten registration", "underwritten offering" or
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"underwritten registered offering" shall mean a registration in which securities
of Prodigy are sold to an underwriter for re-offering to the public pursuant to
an effective Registration Statement.
2. Demand Registrations.
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(a) Notice. SBC or SBC Sub may at any time make a written request to
Prodigy that Prodigy file a registration statement (a "Demand Registration
Statement") registering for offer and sale all or a part of its Registrable
Securities with the SEC under and in accordance with provisions of the
Securities Act (a "Demand Registration"). All requests made pursuant to this
paragraph will specify the aggregate number of the Registrable Securities to be
registered and will also specify the intended methods of disposition thereof.
(b) Restrictions. Each Demand Registration Statement shall be filed as soon
as possible but in no event later than 30 days (which time period may be
extended at the option of Prodigy for up to one hundred twenty (120) days no
more than one time in any calendar year if the Board of Directors of Prodigy
provides written notice (accompanied by a resolution of the
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Board setting forth the following) to SBC and/or SBC Sub, as the case may be,
that it has determined that the filing of a Demand Registration Statement would
require Prodigy to disclose material non-public information, the disclosure of
which Prodigy's Board of Directors believes would be materially harmful to
Prodigy and its stockholders at that time) after the date SBC and/or SBC Sub, as
the case may be, makes the written request for registration under the preceding
paragraph, so long as Registrable Securities are still outstanding at each such
time. Prodigy shall not be required to effect more than two Demand Registrations
pursuant to this Section 2 in any calendar year.
(c) Effectiveness. Prodigy agrees to use its best efforts to cause each
such Demand Registration Statement to be declared effective by the SEC within 45
calendar days after filing, and to keep it continuously effective for a period
of 120 days following the dates on which each such Demand Registration Statement
is declared effective or until all Registrable Securities included therein have
been sold, if earlier.
(d) Priority of Securities in Demand Registrations. In connection with any
underwritten Demand Registration, if the managing underwriter or underwriters
advise Prodigy in writing that, in its or their reasonable opinion, the
inclusion of the number of securities proposed to be registered exceeds the
number which can be sold in such offering, Prodigy will include in such
registration the number of securities which, in the opinion of such underwriter
or underwriters, can be sold as follows: (i) first, the Registrable Securities
requested to be included in such Demand Registration by SBC and/or SBC Sub, as
the case may be; (ii) second, the Registrable Securities requested to be
included in such Demand Registration, pro rata among the holders of Registrable
Securities which have requested their Registrable Securities to be included
therein; (iii) third, any Class A Common Shares Prodigy proposes to sell; and
(iv) fourth, other Class A Common Shares requested to be included in such Demand
Registration.
(e) Selection of Underwriters. SBC and/or SBC Sub, as the case may be,
shall have the right, with respect to any Registration Statement to be filed as
a result of a Demand Registration, to determine whether such registration shall
be underwritten or not and to select any managing underwriter or underwriters to
administer the offering, which managing underwriter or underwriters will be of
nationally recognized standing and which will be reasonably acceptable to
Prodigy.
3. Piggyback Registration Rights.
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(a) Rights to Piggyback. Subject to the last sentence of this paragraph,
whenever Prodigy proposes to file a registration statement under the Securities
Act (a "Proposed Registration") with respect to any proposed public offering by
Prodigy or by any holders of Class A Common Shares (or securities convertible
into or exchangeable or exercisable for Class A Common Shares) and the
registration form to be used may be used for the registration of the Registrable
Securities (a "Piggyback Registration"), Prodigy will give prompt written notice
to SBC and SBC Sub of its intention to effect such a registration and will,
subject to Section 3(b) below, include in such Piggyback Registration all
Registrable Securities with respect to which
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Prodigy has received written request for inclusion therein within 15 days after
receipt of Prodigy's notice. Registrable Securities with respect to which such
requests for registration have been received will be registered by Prodigy and
offered to the public pursuant to this Section 3 on the same terms and subject
to the same conditions applicable to the registration in a Proposed Registration
of Class A Common Shares to be sold by Prodigy or by persons selling under such
Proposed Registration. Holders of Registrable Securities will not be entitled to
include Class A Common Shares pursuant to this Section 3(a) in any Registration
Statement pertaining to the registration of any securities of Prodigy in
connection with mergers, acquisitions, exchange offers, subscription offers,
dividend reinvestment plans or stock options or other employee benefit plans.
(b) Priority on Piggyback Registrations. In connection with an
underwritten Piggyback Registration, if the managing underwriter or underwriters
advise Prodigy in writing that, in its or their reasonable opinion, the
inclusion of the number of securities proposed to be registered exceeds the
number which can be sold in such offering, Prodigy will include in such
registration the number of securities which, in the opinion of such underwriter
or underwriters, can be sold as follows: (i) first, the Class A Common Shares
Prodigy proposes to sell or if the registration is in response to a demand
registration right of a Person (other than SBC or SBC Sub) whose registration
rights exist as of the date hereof and require such a priority, the securities
that the Person(s) demanding such registration propose or proposes to sell to
the extent of such a priority, (ii) second, the Registrable Securities requested
to be included in such registration and any securities requested to be included
in such registration by a Person who exercises its rights to have its securities
included in such registration, but only to the extent of such rights, pro rata
among the holders of Registrable Securities which have requested their
Registrable Securities to be included therein and such Persons which have
requested their securities to be included therein and (iii) third, other Class A
Common Shares requested to be included in such registration.
(c) Selection of Underwriters. If any Piggyback Registration is an
underwritten offering, Prodigy will select a managing underwriter or
underwriters to administer the offering, which managing underwriter or
underwriters will be of nationally recognized standing and which will be
reasonably acceptable to SBC.
4. Registration Procedures.
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In connection with Prodigy's obligation to file Registration Statements
pursuant to Sections 2 or 3 hereof, Prodigy shall use its best efforts to effect
such registration to permit the sale of such Registrable Securities in
accordance with the intended method or methods of disposition thereof, and
pursuant thereto Prodigy shall:
(a) before filing a Registration Statement or Prospectus or any amendments
or supplements thereto, including documents incorporated by reference after the
initial filing of the Registration Statement, furnish to SBC and/or SBC Sub, as
the case may be, and the managing underwriters, if any, copies of all such
documents proposed to be filed, which documents will be
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subject to the review of SBC and/or SBC Sub, as the case may be, and such
managing underwriters, and Prodigy shall not file any Registration Statement or
amendment thereto or any Prospectus or any supplement thereto (including such
documents incorporated by reference) to which SBC or the managing underwriters,
if any, shall reasonably object;
(b) prepare and file with the SEC such amendments and post-effective
amendments to any Registration Statement, and such supplements to the
Prospectus, as may be reasonably requested by SBC and/or SBC Sub, as the case
may be, or any underwriter of Registrable Securities or as may be required by
the Securities Act or any rules or regulations promulgated thereunder or
otherwise necessary to keep the Registration Statement effective for the
applicable period;
(c) cause the final Prospectus as supplemented to be filed pursuant to Rule
424 under the Securities Act if then required by the Securities Act;
(d) comply with the provisions of the Securities Act with respect to the
disposition of all securities covered by such Registration Statement during the
applicable period in accordance with the intended methods of disposition by the
sellers thereof set forth in such Registration Statement or supplement to the
Prospectus;
(e) notify SBC and/or SBC Sub, as the case may be, and the managing
underwriters, if any, promptly, and (if requested by any such Person) confirm
such notification in writing:
(1) when the Prospectus or any Prospectus supplement or post-effective
amendment has been filed, and, with respect to the Registration Statement
or any post-effective amendment, when the same has become effective,
(2) of any request by the SEC for amendments or supplements to the
Registration Statement or the Prospectus or for additional information,
(3) of the issuance by the SEC of any stop order suspending the
effectiveness of the Registration Statement or the initiation of any
proceedings for that purpose,
(4) of the receipt by Prodigy of any notification with respect to the
suspension of the qualification of the Registrable Securities for sale in
any jurisdiction or the initiation or threatening of any proceeding for
such purpose, and
(5) of the happening of any event or the existence of any state of
facts that requires the making of any changes in the Registration Statement
or the Prospectus included therein so that, as of such date, such
Registration Statement and Prospectus do not contain an untrue statement of
a material fact and do not omit to state a material fact required to be
stated therein or necessary to make the statements therein (in the case of
the Prospectus, in light of the circumstances under which they were made)
not misleading (which advice shall be accompanied by an instruction to SBC
and SBC Sub to suspend the use of the Prospectus until the requisite
changes have been made);
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(f) use its best efforts to prevent the issuance, and if issued to obtain
the withdrawal, of any order suspending the effectiveness of the Registration
Statement at the earliest possible time;
(g) if reasonably requested by SBC and/or SBC Sub, as the case may be, or
the managing underwriter, immediately incorporate in a Prospectus supplement or
post-effective amendment such information as SBC and/or SBC Sub, as the case may
be, and the managing underwriters agree should be included therein relating to
the sale of the Registrable Securities, including, without limitation,
information with respect to the number of Registrable Securities being sold to
such underwriters, the purchase price being paid therefor by such underwriters
and with respect to any other terms of the underwritten (or best efforts
underwritten) offering of the Registrable Securities to be sold in such
offering, including the plan of distribution therefor; and make all required
filings of such Prospectus supplement or post-effective amendment as soon as
notified of the matters to be incorporated in such Prospectus supplement or
post-effective amendment;
(h) promptly prior to the filing of any document which is to be
incorporated by reference into the Registration Statement or the Prospectus
(after initial filing of the Registration Statement) (i) provide copies of such
document to counsel to SBC and/or SBC Sub, as the case may be, and to the
managing underwriters, if any, and (ii) make Prodigy's representatives available
for discussion of such document and make such changes in such document prior to
the filing thereof as counsel for SBC and/or SBC Sub, as the case may be, or
underwriters may reasonably request;
(i) furnish to SBC and/or SBC Sub, as the case may be, and each managing
underwriter, without charge, at least one signed copy of the Registration
Statement and any post-effective amendment thereto, including financial
statements and schedules, all documents incorporated therein by reference and
all exhibits (including those incorporated by reference);
(j) deliver to SBC and/or SBC Sub, as the case may be, and the
underwriters, if any, without charge, as many copies of the Prospectus
(including each preliminary Prospectus) and any amendment or supplement thereto
as such Persons may reasonably request; Prodigy consents (except during the
continuance of any event described in Section 4(e)(5) above) to the use of the
Prospectus and any amendment or supplement thereto by SBC and/or SBC Sub, as the
case may be, and the underwriters, if any, in connection with the offering and
sale of the Registrable Securities covered by the Prospectus and any amendment
or supplement thereto;
(k) prior to any offering of Registrable Securities pursuant to any
Registration Statement, (i) Prodigy shall register or qualify or cooperate with
SBC and/or SBC Sub, as the case may be, and its or their counsel in connection
with the registration or qualification of such Registrable Securities for offer
and sale under the securities or "blue sky" laws of such jurisdictions of or
within the United States of America as SBC or any underwriter reasonably
requests in writing, (ii) keep such registrations or qualifications in effect
and comply with such laws so as to permit the continuance of offers and sales in
such jurisdictions for so long as may
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be necessary to enable SBC and/or SBC Sub, as the case may be, or the managing
underwriters, if any, to complete its distribution of Registrable Securities
pursuant to a Registration Statement, and (iii) take any and all other actions
necessary or advisable to enable the disposition in such jurisdictions of the
Registrable Securities covered by the Registration Statement; provided, however,
that in no event shall Prodigy be obligated to (i) qualify as a foreign
corporation or as a dealer in securities in any jurisdiction where it would not
otherwise be required to so qualify but for this Section 4(k) or (ii) file any
general consent to service of process in any such jurisdiction where it is not
as of the date hereof so subject;
(l) cooperate with SBC and/or SBC Sub, as the case may be, and the managing
underwriters, if any, to facilitate the timely preparation and delivery of
certificates representing Registrable Securities to be sold pursuant to the
Registration Statement, which certificates, if so required by any securities
exchange upon which any Registrable Securities are listed, shall be penned,
lithographed or engraved, or produced by any combination of such methods, on
steel engraved borders, and which certificates shall be free of any restrictive
legends and in such denominations and registered in such names as SBC and/or SBC
Sub, as the case may be, or the managing underwriters may request at least two
business days prior to the sale of Registrable Securities pursuant to the
Registration Statement;
(m) use its reasonable best efforts to cause the Registrable Securities
covered by the applicable Registration Statement to be registered with or
approved by such other governmental agencies or authorities of or within the
United States of America as may be necessary to enable SBC and/or SBC Sub, as
the case may be, or the managing underwriters, if any, to consummate the
disposition of such Registrable Securities;
(n) if any fact contemplated by Section 4(e)(5) above shall exist, promptly
prepare a supplement or post-effective amendment to the Registration Statement
or the related Prospectus or any document incorporated therein by reference or
file any other required document so that, as thereafter delivered to the
purchasers of the Registrable Securities, the Prospectus will not contain an
untrue statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein not misleading;
provided, however, if the Board of Directors of Prodigy provides written notice
(accompanied by a resolution of the board setting forth the following) to SBC
and/or SBC Sub, as the case may be, that it has determined that it is advisable
to disclose in the Registration Statement material non-public information, the
disclosure of which Prodigy's Board of Directors believes would be materially
harmful to Prodigy and its stockholders at that time, Prodigy shall not be
required to prepare and file such amendment, supplement or document for such
period as the Board of Directors of Prodigy believes such disclosure would be
materially harmful to Prodigy; provided that such period shall be no more than
sixty calendar days. If Prodigy notifies SBC and/or SBC Sub, as the case may
be, of the occurrence of any event contemplated by Section 4(e)(5) above, each
of SBC and SBC Sub agrees, as a consequence of the inclusion of any of SBC's or
SBC Sub's Registrable Securities in the Registration Statement, to suspend the
use of the Prospectus until the requisite changes to the Prospectus have been
made;
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(o) use all reasonable efforts to cause the Registrable Securities covered
by the Registration Statement to be listed for quotation on the Nasdaq National
Market or other stock exchange or trading system on which the Registrable
Securities primarily trade on or prior to the Effective Time of the Registration
Statement;
(p) enter into such agreements (including an underwriting agreement in
form, scope and substance as is customary in underwritten offerings) and take
all such other actions in connection therewith as may be reasonably requested by
SBC and/or SBC Sub, as the case may be, and the managing underwriters, if any,
in order to expedite or facilitate the disposition of such Registrable
Securities and in such connection, whether or not an underwriting agreement is
entered into and whether or not the registration is an underwritten
registration:
(1) make such representations and warranties to SBC and/or SBC Sub, as
the case may be, and the underwriters, if any, in form, substance and scope
as are customarily made by issuers to underwriters in underwritten
offerings;
(2) obtain opinions of counsel to Prodigy and bring-downs of such
opinions (which counsel and opinions (in form, scope and substance) shall
be reasonably satisfactory to SBC and to the managing underwriters, if any,
and addressed to SBC and/or SBC Sub, as the case may be, and the
underwriters, if any, covering: (i) in the case of an underwritten
offering, the matters customarily covered in opinions requested in
underwritten offerings and such other matters as may be reasonably
requested by SBC and/or SBC Sub, as the case may be, and the underwriters
(it being agreed that the matters to be covered shall include, without
limitation, as of the date of the opinion and as of the Effective Time of
the Registration Statement or most recent post-effective amendment thereto,
as the case may be, a statement as to the absence from the Registration
Statement and the Prospectus, including the documents incorporated by
reference therein, of an untrue statement of a material fact or the
omission of a material fact required to be stated therein or necessary to
make the statements therein not misleading), and (ii) in the case of
offerings not involving an underwriter, the matters customarily covered in
opinions requested in the type of offering involved, and, in the case of
(i) or (ii), stating that the Registration Statement complies, as to form,
with the requirements of the Securities Act;
(3) obtain "cold comfort" letters and updates thereof from the
independent public accountants of Prodigy (and, if necessary, from the
independent public accountants of any Subsidiary of Prodigy or of any
business acquired by Prodigy for which financial statements and financial
data are, or are required to be, included in the Registration Statement)
addressed to SBC and/or SBC Sub, as the case may be, and the underwriters,
if any, such letters to be in customary form and covering matters of the
type customarily covered in "cold comfort" letters by underwriters in
connection with underwritten offerings;
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(4) if an underwriting agreement is entered into, the same shall set
forth in full the indemnification and contribution provisions and
procedures of Section 6 hereof with respect to all parties to be
indemnified pursuant to Section 6 hereof; and
(5) Prodigy shall deliver such documents and certificates as may be
reasonably requested by SBC and/or SBC Sub, as the case may be, and the
managing underwriters, if any, to evidence the continued validity of the
representations and warranties made pursuant to Section 4(p)(1) above and
to evidence compliance with any conditions contained in the underwriting
agreement or other agreement entered into by Prodigy.
The above shall be done at each closing under such underwriting or similar
agreement or as and to the extent required thereunder;
(q) make available for inspection by SBC and/or SBC Sub, as the case may
be, any underwriter participating in any disposition pursuant to such
Registration Statement, and any attorney or accountant retained by SBC and/or
SBC Sub, as the case may be, or such underwriter, all pertinent financial and
other records, pertinent corporate documents and properties of Prodigy and its
Subsidiaries, cause the officers, directors, agents and employees of Prodigy and
its Subsidiaries to supply all information in each case reasonably requested by
SBC and/or SBC Sub, as the case may be, or any such underwriter, attorney or
accountant in connection with the Registration Statement, provide SBC and/or SBC
Sub, as the case may be, and any such underwriter, attorney or accountant with
opportunities to discuss the business of Prodigy and its Subsidiaries with
Prodigy's officers and provide SBC and/or SBC Sub, as the case may be, and any
such underwriter, attorney or accountant with opportunities to discuss the
business of Prodigy and its Subsidiaries with the independent public accountants
who have certified Prodigy's most recent annual financial statements in each
case, as is customary for similar due diligence investigations; provided that
any records, information or documents that are designated in writing by Prodigy,
in good faith, as confidential shall be kept confidential by such Persons unless
disclosure is made in connection with a court proceeding or required by law, or
such records, information or documents become available to the public generally
or through a third party without an accompanying obligation of confidentiality;
and provided further that, if the foregoing inspection and information gathering
would otherwise disrupt Prodigy's conduct of its business, such inspection and
information gathering shall, to the greatest extent possible, be coordinated on
behalf of SBC and/or SBC Sub, as the case may be, and the other parties entitled
thereto by one counsel designated by and on behalf of SBC and/or SBC Sub, as the
case may be, and other parties;
(r) otherwise use its best efforts to comply with all applicable rules and
regulations of the SEC, and make generally available to its securityholders as
soon as practicable, but in any event not later than eighteen months after the
effective date of the Registration Statement (as defined in Rule 158(c) under
the Securities Act), an earnings statement of Prodigy and its Subsidiaries
complying with Section 11(a) of the Securities Act and the rules and regulations
of the SEC thereunder (including, at the option of Prodigy, Rule 158);
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(s) in the event that any broker-dealer registered under the Exchange Act
shall be an "affiliate" (as defined in Rule 2720(b)(1) of the NASD Rules (or any
successor provision thereto)) of Prodigy or has a "conflict of interest" (as
defined in Rule 2720(b)(7) of the NASD Rules (or any successor provision
thereto)) and such broker-dealer shall underwrite, participate as a member of an
underwriting syndicate or selling group or assist in the distribution of any
Registrable Securities covered by a Registration Statement, whether as a holder
of such Registrable Securities or as an underwriter, a placement or sales agent
or a broker or dealer in respect thereof, or otherwise, Prodigy shall assist
such broker-dealer in complying with the requirements of the NASD Rules,
including, without limitation, by (A) engaging a "qualified independent
underwriter" (as defined in Rule 2720(b)(15) of the NASD Rules (or any successor
provision thereto)) to participate in the preparation of the registration
statement relating to such Registrable Securities, to exercise usual standards
of due diligence in respect thereto and to recommend the public offering price
of such Registrable Securities, (B) indemnifying such qualified independent
underwriter to the extent of the indemnification of underwriters provided in
Section 6 hereof, and (C) providing such information to such broker-dealer as
may be required in order for such broker-dealer to comply with the requirements
of the NASD Rules;
(t) use its reasonable efforts to assist SBC and/or SBC Sub, as the case
may be, and the underwriters, if any, in marketing the Registrable Securities,
including causing its executive officers to participate in such "road show"
presentations and conference calls as may be customary in the marketing of
equity securities; provided, however, that SBC and/or SBC Sub, as the case may
be, shall cause the managing underwriters or placement agents of any Securities
to give such executives reasonable advance notice concerning the scheduling of
any such presentation or call; provided, further, that such presentations and
conference calls shall be scheduled with the understanding that the regular
responsibilities of such executive officers will take priority over any such
activities; and
(u) take all other steps necessary to effect the registration, offering and
sale of the Registrable Securities covered by the Registration Statement
contemplated hereby.
Prodigy may require SBC and/or SBC Sub, as the case may be, to furnish to
Prodigy such information regarding SBC and/or SBC Sub, as the case may be, and
the distribution of such securities as is required to be disclosed in the
Registration Statement.
Each of SBC and SBC Sub agrees by acquisition of such Registrable
Securities that, upon receipt of any notice from Prodigy of the happening of any
event of the kind described in Section 4(e)(5) hereof, SBC and/or SBC Sub, as
the case may be, will forthwith discontinue disposition of Registrable
Securities pursuant to the Registration Statement until SBC's and/or SBC Sub's,
as the case may be, receipt of the copies of the supplemented or amended
Prospectus contemplated by Section 4(n) hereof, or until it is advised in
writing by Prodigy that the use of the Prospectus may be resumed, and has
received copies of any additional or supplemental filings which are incorporated
by reference in the Prospectus, and, if so directed by Prodigy, SBC and/or SBC
Sub, as the case may be, will deliver to Prodigy (at Prodigy's expense) all
copies, other than permanent file copies then in SBC's and/or SBC Sub's, as the
case may be,
11
possession, of the Prospectus covering such Registrable Securities current at
the time of receipt of such notice; provided that nothing in this paragraph
shall prohibit or restrict SBC and/or SBC Sub, as the case may be, from
effecting sales or transfers otherwise than under a Registration Statement. In
the event Prodigy shall give any such notice, the time periods mentioned in
Section 2(c) hereof shall be extended by the number of days during the period
from and including the date of the giving of such notice to and including the
date when SBC and/or SBC Sub, as the case may be, either receives the copies of
the supplemented or amended prospectus contemplated by Section 4(n) hereof or is
advised in writing by Prodigy that the use of the Prospectus may be resumed.
5. Registration Expenses.
---------------------
(a) All expenses incident to Prodigy's performance of, or compliance, with
this Agreement, including without limitation:
(1) all registration and filing fees (including with respect to
filings required to be made with the National Association of Securities
Dealers);
(2) fees and expenses of compliance with securities or blue sky laws
of or within the United States of America (including fees and disbursements
of counsel for the underwriters or selling holders in connection with blue
sky qualifications of the Registrable Securities and determination of their
eligibility for investment under the laws of such jurisdictions as the
managing underwriters or SBC and/or SBC Sub, as the case may be, may
designate);
(3) printing, messenger, telephone, delivery, distribution and
reproduction expenses;
(4) fees and disbursements of counsel for Prodigy and up to $100,000
of the fees and disbursements of counsel for SBC and/or SBC Sub, as the
case may be, (including the expenses of any opinions required by or
incident to such performance) and fees and disbursements for other advisors
for SBC and/or SBC Sub, as the case may be;
(5) fees and disbursements of all independent certified public
accountants of Prodigy (including the expenses of any special audit and
"cold comfort" letters required by or incident to such performance);
(6) fees and disbursements of underwriters (excluding discounts,
commissions or fees of underwriters, selling brokers, dealer managers or
similar securities industry professionals relating to the distribution of
the Registrable Securities or legal expenses of any person other than
Prodigy, SBC and SBC Sub);
(7) fees and expenses of other Persons retained by Prodigy; and
12
(8) all out-of-pocket expenses and disbursements arising out of or
related to any marketing efforts undertaken pursuant to Section 4(t) of
this Agreement
(all such expenses being, herein called "Registration Expenses") will be borne
by Prodigy, regardless whether the Registration Statement becomes effective.
To the extent that any Registration Expenses are incurred, assumed or paid
by SBC or SBC Sub, or any underwriter, Prodigy shall reimburse such Person for
the full amount of the Registration Expenses so incurred, assumed or paid
promptly after receipt of a written request therefor, which shall specify in
reasonable detail the nature and amount of the Registration Expenses.
Prodigy will, in any event, pay its internal expenses (including, without
limitation, all salaries and expenses of its officers and employees performing
legal or accounting duties), the expense of any annual audit, rating agency
fees, the fees and expenses incurred in connection with the listing of the
securities to be registered on each securities exchange on which similar
securities issued by Prodigy are then listed and the fees and expenses of any
Person, including special experts, retained by Prodigy.
(b) In connection with each Registration Statement required hereunder,
Prodigy shall not be responsible for the payment of any transfer taxes relating
to the sale or disposition of the Registrable Securities by SBC or SBC Sub or
for any underwriting discounts and commissions attributable to the sale of
Registrable Securities by or on behalf of SBC or SBC Sub.
6. Indemnification.
---------------
(a) Indemnification by Prodigy. In the event of any registration of
securities of Prodigy under the Securities Act, Prodigy shall indemnify and hold
harmless (i) in the case of any registration of Registrable Securities
hereunder, SBC and/or SBC Sub, as the case may be, and each underwriter, selling
agent or other securities professional, if any, which facilitates the
disposition of Registrable Securities, and each of their respective officers and
directors and each Person who controls SBC and/or SBC Sub, as the case may be,
or such underwriter, selling agent or other securities professional within the
meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act,
and (ii) in the case of any registration statement of Prodigy, SBC, its
directors and officers and each Person who controls SBC within the meaning of
Section 15 of the Securities Act or Section 20 of the Exchange Act (each such
person being sometimes referred to as an "Indemnified Person") against any
losses, claims, damages or liabilities, joint or several, to which such
Indemnified Person may become subject under the Securities Act or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon (x) an untrue statement or alleged
untrue statement of a material fact contained in any Registration Statement
under which such Registrable Securities are to be registered under the
Securities Act, or any Prospectus contained therein or furnished by Prodigy to
any Indemnified Person, or any amendment or supplement thereto, or (y) the
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make
13
the statements therein not misleading or (z) the failure of Prodigy to comply
with applicable law or the breach by Prodigy of this Agreement, and Prodigy
hereby agrees to reimburse such Indemnified Person for any legal or other
expenses reasonably incurred by them in connection with investigating or
defending any such action or claim as such expenses are incurred; provided,
however, that Prodigy shall not be liable to any such Indemnified Person in any
such case to the extent that any such loss, claim, damage or liability arises
out of or is based upon an untrue statement or alleged untrue statement or
omission or alleged omission made in such Registration Statement or Prospectus,
or amendment or supplement, in reliance upon and in conformity with written
information furnished to Prodigy by such Indemnified Person expressly for use
therein.
(b) Indemnification by SBC and any Underwriters. SBC agrees, as a
consequence of the inclusion of any of SBC's Registrable Securities in such
Registration Statement, SBC Sub agrees, as a consequence of the inclusion of any
of SBC Sub's Registrable Securities in such Registration Statement, and each
underwriter, selling agent or other securities professional, if any, which
facilitates the disposition of Registrable Securities shall agree, as a
consequence of facilitating such disposition of Registrable Securities,
severally and not jointly, to (i) indemnify and hold harmless Prodigy, its
directors, officers who sign the registration statement and each person, if any,
who controls Prodigy within the meaning of either Section 15 of the Securities
Act or Section 20 of the Exchange Act, against any losses, claims, damages or
liabilities to which Prodigy or such other persons may become subject, under the
Securities Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon an
untrue statement or alleged untrue statement of a material fact contained in
such Registration Statement or Prospectus, or any amendment or supplement, or
arise out of or are based upon the omission or alleged omission to state therein
a material fact required to be stated therein or necessary to make the
statements therein not misleading, in each case to the extent, but only to the
extent, that such untrue statement or alleged untrue statement or omission or
alleged omission was made in reliance upon and in conformity with written
information furnished to Prodigy by SBC and/or SBC Sub, as the case may be, or
such underwriter, selling agent or other securities professional expressly for
use therein, and (ii) reimburse Prodigy for any legal or other expenses
reasonably incurred by Prodigy in connection with investigating or defending any
such action or claim as such expenses are incurred.
(c) Notices of Claims, Etc. Promptly after receipt by an indemnified party
under subsection (a) or (b) above of notice of the commencement of any action,
such indemnified party shall, if a claim in respect thereof is to be made
against an indemnifying party under this Section 6 notify such indemnifying
party in writing of the commencement thereof; but the omission so to notify the
indemnifying party shall not relieve it from any liability which it may have to
any indemnified party otherwise than under this Section 6. In case any such
action shall be brought against any indemnified party and it shall notify an
indemnifying party of the commencement thereof, such indemnifying party shall be
entitled to participate therein and, to the extent that it shall wish, jointly
with any other indemnifying party similarly notified, to assume the defense
thereof, with counsel reasonably satisfactory to such indemnified party (who
shall not, except with the consent of the indemnified party (which consent shall
not be unreasonably withheld or delayed), be counsel to the indemnifying party),
and, after notice from
14
the indemnifying party to such indemnified party of its election so to assume
the defense thereof, such indemnifying party shall not be liable to such
indemnified party under this Section 6 for any legal expenses of other counsel
or any other expenses, in each case subsequently incurred by such indemnified
party, in connection with the defense thereof other than reasonable costs of
investigation. No indemnifying party shall, without the written consent of the
indemnified party, effect the settlement or compromise of, or consent to the
entry of any judgment with respect to, any pending or threatened action or claim
in respect of which indemnification or contribution may be sought hereunder
(whether or not the indemnified party is an actual or potential party to such
action or claim) unless such settlement, compromise or judgment (i) includes an
unconditional release of the indemnified party from all liability arising out of
such action or claim and (ii) does not include a statement as to, or an
admission of, fault, culpability or a failure to act, by or on behalf of any
indemnified party.
(d) Contribution. If the indemnification provided for in this Section 6 is
unavailable to or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above in respect of any losses, claims, damages or
liabilities (or actions in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities (or
actions in respect thereof) in such proportion as is appropriate to reflect the
relative fault of the indemnifying party and the indemnified party in connection
with the statements or omissions which resulted in such losses, claims, damages
or liabilities (or actions in respect thereof), as well as any other relevant
equitable considerations. The relative fault of such indemnifying party and
indemnified party shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or omission or
alleged omission to state a material fact relates to information supplied by
such indemnifying party or by such indemnified party, and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission. The parties hereto agree that it would not be just
and equitable if contribution pursuant to this Section 6(d) were determined by
pro rata allocation (even if SBC and/or SBC Sub, as the case may be, or any
underwriters, selling agents or other securities professionals or all of them
were treated as one entity for such purpose) or by any other method of
allocation which does not take account of the equitable considerations referred
to in this Section 6(d). The amount paid or payable by an indemnified party as
a result of the losses, claims, damages or liabilities (or actions in respect
thereof) referred to above shall be deemed to include any legal or other fees or
expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The obligations of SBC and/or SBC
Sub, as the case may be, and any underwriters, selling agents or other
securities professionals in this Section 6(d) to contribute shall be several in
proportion to the percentage of Registrable Securities registered or
underwritten, as the case may be, by them and not joint.
(e) Notwithstanding any other provision of this Section 6, in no event will
either (i) SBC or SBC Sub be required to undertake liability to any person under
this Section 6 for any
15
amounts in excess of the dollar amount of the proceeds to be received by SBC or
SBC Sub, respectively, from the sale of its Registrable Securities (after
deducting any fees, discounts and commissions applicable thereto) pursuant to
any Registration Statement under which such Registrable Securities are to be
registered under the Securities Act, or (ii) any underwriter, selling agent or
other securities professional be required to undertake liability to any person
hereunder for any amounts in excess of the discount, commission or other
compensation payable to such underwriter, selling agent or other securities
professional with respect to the Registrable Securities underwritten by it and
distributed to the public.
(f) The obligations of Prodigy under this Section 6 shall be in addition to
any liability which Prodigy may otherwise have to any Indemnified Person and the
obligations of any Indemnified Person under this Section 6 shall be in addition
to any liability which such Indemnified Person may otherwise have to Prodigy.
The remedies provided in this Section 6 are not exclusive and shall not limit
any rights or remedies which may otherwise be available to an indemnified party
at law or in equity.
7. Rule 144.
--------
(a) Prodigy covenants that it will timely file the reports required to be
filed by it under the Securities Act and the Exchange Act and the rules and
regulations adopted by the SEC thereunder (or, if Prodigy is not required to
file such reports, it will, upon the request of SBC make publicly available such
information as necessary to permit sales pursuant to Rule 144 under the
Securities Act), and it will take such further action as SBC and SBC Sub may
reasonably request, all to the extent required from time to time to enable SBC
and SBC Sub to sell Registrable Securities without registration under the
Securities Act within the limitation of the exemptions provided by (a) Rule 144
under the Securities Act, as such Rule may be amended from time to time, or (b)
any similar rule or regulation hereafter adopted by the SEC, including providing
any legal opinions. Upon the request of SBC and/or SBC Sub, as the case may be,
Prodigy will deliver to SBC and/or SBC Sub, as the case may be, a written
statement as to whether it has complied with such information and requirements.
(b) A security ceases to be a Restricted Security when SBC or SBC Sub, as
the case may be, is permitted to sell such security to the public without
restriction pursuant to Rule 144(k) (or any similar provisions then in force),
unless in SBC's or SBC Sub's, as the case may be, reasonable judgment, after
consultation with Prodigy, an underwritten registered offering is desirable to
distribute the security. The determination as to whether SBC or SBC Sub, as the
case may be, is permitted to sell such security to the public without
restriction pursuant to Rule 144(k) (including, without limitation, the
determination as to whether SBC or SBC Sub, as the case may be, is an
"affiliate" of Prodigy, as such term is used in Rule 144), shall be made
promptly and in good faith by counsel to SBC or SBC Sub, as the case may be, and
counsel to Prodigy at such time as SBC or SBC Sub, as the case may be, seeks to
sell such security to the public pursuant to Rule 144(k). In the event that an
underwritten registered offering is deemed to be desirable by SBC or SBC Sub, as
the case may be, to distribute a security, such security shall continue to be
deemed a Restricted Security hereunder.
16
8. Approval for Listing.
--------------------
Promptly after the date hereof and after any subsequent increase in the
number of Registrable Securities, Prodigy shall take all necessary action to
cause all of the Registrable Securities to be approved for listing, subject to
official notice of issuance, on the Nasdaq National Market or other securities
exchange or dealer quotation system on which the Class A Common Shares may then
be listed or authorized for quotation.
9. Term of Registration Rights.
---------------------------
The rights of SBC and SBC Sub with respect to the registration rights
granted pursuant to this Agreement shall remain in effect, subject to the terms
hereof, so long as there are Registrable Securities or securities which are
convertible or exchangeable for Registrable Securities issued and outstanding.
10. Further Agreements.
------------------
(a) The parties agree that, subject to the advance notice requirements set
forth in the Restated Certificate of Incorporation, any conversion of Class B
Common Stock or exchange of Units for Class A Common Shares shall occur, at the
option of the exchanging or converting holder, contemporaneously with the
registration of the Class A Common Shares to be received, or the consummation of
the sale of such Class A Common Shares pursuant to such registration, or at such
other time as such holder shall request in writing.
(b) Prodigy will not file any registration statement under the Securities
Act unless it shall first have given to SBC and/or SBC Sub, as the case may be,
for so long as SBC and/or SBC Sub, as the case may be, owns beneficially (as
such term is defined in the Exchange Act) 10% or more of the Common Stock (as
defined in the Restated Certificate of Incorporation) of Prodigy at the time
outstanding or is otherwise deemed to be a control person under the Securities
Act, at least 10 days' prior written notice thereof and, if so requested by SBC
and/or SBC Sub, as the case may be, within 10 days after such notice, SBC and/or
SBC Sub, as the case may be, shall have the right, at any time when, in the
reasonable judgment of SBC and/or SBC Sub, as the case may be, SBC and/or SBC
Sub, as the case may be, is or might be deemed a controlling person of Prodigy
within the meaning of the Securities Act, (a) to participate in the preparation
and filing of each such registration statement to the extent provided in Section
4 hereof; (b) to receive the documents and notices specified in Section 4 hereof
and to make the requests specified in Section 4 hereof; (c) to receive signed
copies of the documents specified in Section 4 hereof addressed to SBC and/or
SBC Sub, as the case may be; and (d) to pay the fees and disbursements of
counsel to SBC and/or SBC Sub, as the case may be, which assists in such
participation. If any such registration statement refers to SBC and/or SBC Sub,
as the case may be, by name or otherwise as the holder of any securities of
Prodigy, then SBC and/or SBC Sub, as the case may be, shall have the right (in
addition to any other rights it may have under this Agreement) to require, in
the event that such reference to SBC and/or SBC Sub, as the case may be, by name
or otherwise is not required by the Securities Act or any rules and regulations
17
promulgated thereunder, the deletion of the references to SBC and/or SBC Sub, as
the case may be.
11. Miscellaneous.
-------------
(a) Remedies. Each of SBC and SBC Sub, in addition to being entitled to
exercise all rights provided herein and granted by law, including recovery of
damages, will be entitled to specific performance of its rights under this
Agreement. Prodigy agrees that monetary damages would not be adequate
compensation for any loss incurred by reason of a breach by it of the provisions
of this Agreement and hereby agrees to waive the defense in any action for
specific performance that a remedy at law would be adequate.
(b) Registration Rights of Other Persons. Prodigy may grant to any Person
other than SBC and SBC Sub the right to request a registration of securities of
Prodigy under the Securities Act or the right to be included as a selling
stockholder in connection with any registration of Registrable Securities;
provided, however, that the granting of any such rights shall not conflict with
or otherwise alter any rights granted to SBC and SBC Sub hereunder. The rights
granted to SBC and SBC Sub hereunder do not in any way conflict with and are not
inconsistent with the rights granted to the holders of Prodigy's securities
under any other agreements.
(c) Adjustments Affecting Registrable Securities. Prodigy will not take
any action, or permit any change to occur, with respect to the Registrable
Securities which would (i) adversely affect the ability of SBC or SBC Sub to
include such Registrable Securities in a registration undertaken pursuant to
this Agreement or (ii) adversely affect the marketability of such Registrable
Securities in any such registration.
(d) Amendments and Waivers. This Agreement, including this Section 11(d),
may be amended, and waivers or consents to departures from the provisions hereof
may be given, only by a written instrument duly executed by Prodigy, SBC and SBC
Sub. Each holder of Registrable Securities outstanding at the time of any such
amendment, waiver or consent or thereafter shall be bound by any amendment,
waiver or consent effected pursuant to this Section 11(d), whether or not any
notice, writing or marking indicating such amendment, waiver or consent appears
on the Registrable Securities or is delivered to such holder.
(e) Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand-delivery, registered first-
class mail, telex, telecopier, or air courier guaranteeing overnight delivery:
(1) if to SBC or SBC Sub, initially at its address at SBC
Communications Inc., 000 Xxxx Xxxxxxx Xxxxxx, Xxx Xxxxxxx, Xxxxx 00000,
Facsimile: 000-000-0000, Attention: Xxxxx X. Xxxxx, Senior Vice President
-- Corporate Development, with a copy to General Counsel, and thereafter at
such other address, notice of which is given in accordance with the
provisions of this Section 11(e); and
18
(2) if to Prodigy, initially at its address at Prodigy Communications
Corporation, 00 Xxxxx Xxxxxxxx, Xxxxx Xxxxxx, Xxx Xxxx 00000, Facsimile:
000-000-0000, Attention: Xxxxxx X. Xxxxxx, and thereafter at such other
address, notice of which is given in accordance with the provisions of this
Section 11(e).
All such notices and communications shall be deemed to have been duly
given: at the time delivered by hand, if personally delivered; five business
days after being deposited in the mail, postage prepaid, if mailed; when
answered back, if telexed; when receipt acknowledged, if telecopied; and on the
next business day, if timely delivered to an air courier guaranteeing overnight
delivery.
(f) Parties in Interest; Benefits of Registration Rights. The parties to
this Agreement intend that each of SBC and SBC Sub shall be entitled to receive
the benefits of this Agreement and that each of SBC and SBC Sub shall be bound
by the terms and provisions of this Agreement by reason of its election with
respect to the Registrable Securities which are included in a Registration
Statement. All the terms and provisions of this Agreement shall be binding
upon, shall inure to the benefit of and shall be enforceable by the respective
successors and assigns of the parties hereto. In the event that any transferee
of SBC or SBC Sub shall acquire Registrable Securities, in any manner, whether
by gift, bequest, purchase, operation of law or otherwise, SBC, SBC Sub and such
transferee may, without any further writing or action of any kind, jointly
exercise the registration rights hereunder in such manner and in such proportion
as SBC and SBC Sub shall determine and, if such transferee jointly exercises
such registration rights with SBC and/or SBC Sub hereunder, such transferee
shall be conclusively deemed to have agreed to be bound by and to perform all of
the terms and provisions of this Agreement to the aforesaid extent.
(g) Counterparts. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
(h) Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(i) Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York, without giving effect to any
provisions relating to conflicts of laws.
(j) Severability. In the event that any one or more of the provisions
contained herein, or the application thereof in any circumstances, is held
invalid, illegal or unenforceable in any respect for any reason, the validity,
legality and enforceability of any such provision in every other respect and of
the remaining provisions hereof shall not be in any way impaired or affected
thereby, it being intended that all of the rights and privileges of the parties
hereto shall be enforceable to the fullest extent permitted by law.
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(k) Survival. The respective indemnities, agreements, representations,
warranties and other provisions set forth in this Agreement or made pursuant
hereto shall remain in full force and effect, regardless of any investigation
(or any statement as to the results thereof) made by or on behalf of SBC, SBC
Sub, any director or officer of SBC or SBC Sub, any agent or underwriter, any
director, officer or partner of such agent or underwriter, or any controlling
person of any of the foregoing, and shall survive the transfer and registration
of the Registrable Securities of SBC and SBC Sub.
(l) Entire Agreement. This Agreement is intended by the parties as a final
expression of their agreement and intended to be a complete and exclusive
statement of the agreement and understanding of the parties hereto in respect of
the subject matter contained herein. There are no restrictions, promises,
warranties or undertakings, other than those set forth or referred to herein
with respect to the registration rights granted by Prodigy with respect to the
Registrable Securities. This Agreement supersedes all prior agreements and
understandings between the parties with respect to such subject matter.
20
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first written above.
PRODIGY COMMUNICATIONS CORPORATION
By: /s/ Xxxxxx X. Xxxxxx
---------------------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Executive Vice President and General Counsel
SBC COMMUNICATIONS INC.
By: /s/ Xxxxx X. Xxxxx
---------------------------------------------------
Name: Xxxxx X. Xxxxx
Title: Senior Executive Vice President
Corporate Development
SBC INTERNET COMMUNICATIONS INC.
By: /s/ Xxxxxxx X. XxXxx
---------------------------------------------------
Name: Xxxxxxx X. XxXxx
Title: President
