EXHIBIT 2.08
AMENDED AND RESTATED AGREEMENT
AGREEMENT, dated as of June 23, 1998, and amended and restated as of October
9, 1998, by and among AT&T Corp., a New York corporation ("Parent"), on the one
hand, and Xx. Xxxx X. Xxxxxx, a resident of Colorado, individually and in any
Representative Capacity (as defined in Schedule I to this Agreement) ("JM"),
and Xxxxxx Xxxxxx, a resident of Colorado, individually and in any
Representative Capacity ("LM," and together with JM, the "Stockholders"), on
the other hand.
WHEREAS, concurrently herewith, Parent, Italy Merger Corp., a Delaware
corporation and a wholly owned subsidiary of Parent ("Merger Sub"), and Tele-
Communications, Inc., a Delaware corporation (the "Company"), are entering into
an Agreement and Plan of Restructuring and Merger (as amended or supplemented
from time to time, the "Merger Agreement"; capitalized terms used without
definition herein having the meanings ascribed thereto in the Merger
Agreement);
WHEREAS, as of February 9, 1998, the Stockholders own and/or have the power
to vote, as applicable, the number and type of Shares (as defined below) set
forth in Schedule I hereto;
WHEREAS, the Board of Directors of the Company has, prior to the execution of
this Agreement, duly and validly approved and adopted the Merger Agreement and
approved this Agreement, and such approval and adoption have not been
withdrawn;
WHEREAS, approval of the Merger Agreement by the Company's stockholders is a
condition to the consummation of the Merger; and
WHEREAS, as a condition to its entering into the Merger Agreement, Parent has
required that each Stockholder agree, and each Stockholder has agreed, to enter
into this Agreement;
NOW THEREFORE, in consideration of the foregoing and the mutual covenants and
agreements set forth herein, the parties hereto agree as follows:
Section 1. Agreement to Vote. (a) Provided that Parent has not breached or
violated Section 4(b) hereof, each Stockholder hereby agrees to attend the
Stockholders Meeting of the Company (or any other meeting of stockholders of
the Company at which the matters contemplated by the Merger Agreement or this
Agreement are to be presented to a vote of stockholders of the Company), in
person or by proxy, and to vote (or cause to be voted) all Shares and any other
voting securities of the Company (including any such securities acquired
hereafter but excluding any Shares or other securities the Stockholder has the
right to acquire but has not acquired) that such Stockholder directly or
indirectly owns or has the right to vote or direct the voting (collectively,
the "Covered Shares"), for approval and adoption of the Merger Agreement, the
Merger and any related action reasonably required in furtherance thereof, such
agreement to vote to apply also to any adjournment or adjournments or
postponement or postponements of the Stockholders Meeting of the Company (or
any such other meeting). Each Stockholder hereby further agrees that until the
Termination Date (as defined below), he or she shall, from time to time, in
connection with any consent solicitation relating to the Merger Agreement,
timely execute and deliver (or cause to be timely executed and delivered) a
written consent with respect to any Covered Shares in favor of the approval and
adoption of the Merger Agreement, the Merger and any action required in
furtherance thereof.
(b) From and after the date hereof until the Termination Date, each
Stockholder hereby agrees to vote (or cause to be voted) any Covered Shares
against any Takeover Proposal and any related action reasonably required in
furtherance thereof, at any meeting of stockholders of the Company (including
any adjournments or postponements thereof) called to consider and vote on any
Takeover Proposal. Each Stockholder further agrees that, until the Termination
Date, in connection with any consent solicitation relating to a Takeover
Proposal,
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such Stockholder will timely execute and deliver (or cause to be timely
executed and delivered) a written consent with respect to any Covered Shares
against any Takeover Proposal as contemplated by the immediately preceding
sentence. For purposes hereof, the term "Termination Date" shall mean the first
to occur of (a) the 9 month anniversary of the date of termination of the
Merger Agreement, (b) the date of consummation of the Merger and (c) the date
of any breach or violation of Section 4(b) by Parent; provided, however, that
in the event that the Merger Agreement is terminated after the Parent Charter
Amendment and the issuance of Parent Shares in the Merger has been submitted to
the vote of the stockholders of Parent at the Parent Stockholders Meeting and
not approved and adopted by the requisite holders of Parent Common Shares at
such meeting, or if the Merger Agreement is terminated as a result of the
failure of the Merger to be consummated because of the failure of the condition
in Section 8.1(b) or Section 8.2(e) to be satisfied, the Termination Date shall
be the date of termination of the Merger Agreement.
(c) To the extent inconsistent with the foregoing provisions of this Section
1, each Stockholder hereby revokes any and all previous proxies with respect to
such Stockholder's Covered Shares; provided, however, that the foregoing shall
not be deemed to affect the rights of the Xxxxxxx Group (as defined in the
Stockholders Agreement (as defined below)) under that certain Stockholders
Agreement, dated as of February 9, 1998, by and among the Company, the
Stockholders and the members of the Xxxxxxx Group parties thereto (the
"Stockholders Agreement"), it being agreed that JM shall assert his right under
such agreement to vote Covered Shares held by the Xxxxxxx Group in accordance
with this Agreement.
(d) Subject to Section 5(b), each Stockholder agrees to, and to cause its
affiliates to, cooperate reasonably with Parent and the Company in connection
with the Merger Agreement and the consummation of the transactions contemplated
thereby.
(e) Nothing herein contained shall (i) restrict, limit or prohibit JM from
exercising (in his capacity as a director or officer) his fiduciary duties to
the stockholders of the Company under applicable Law, or (ii) require JM, in
his capacity as an officer of the Company, to take any action in contravention
of, or omit to take any action pursuant to, or otherwise take or refrain from
taking any actions which are inconsistent with, instructions or directions of
the Board of Directors of the Company undertaken in the exercise of its
fiduciary duties, provided that nothing in this Section 1(e) shall relieve or
be deemed to relieve JM from his obligations under Sections 1 or 2 of this
Agreement.
Section 2. Disposition of Shares. From and after the date hereof until the
Termination Date, each Stockholder hereby agrees that such Stockholder will not
directly or indirectly sell, pledge, encumber, grant any proxy or enter into
any voting or similar agreement with respect to, transfer or otherwise dispose
of (collectively, "Transfer"), or agree or contract to Transfer, any Covered
Shares (or any interest therein) with respect to which a Stockholder directly
or indirectly controls the right to Transfer; provided, however, that (i) JM
shall be entitled to sell (directly or indirectly) (x) from the date hereof
until the date of termination of the Merger Agreement, up to an aggregate of
2,000,000 Shares, and (y) from the date of termination of the Merger Agreement
to the Termination Date, up to an aggregate of an additional 3,000,000 Shares,
and (ii) JM shall be entitled to pledge and encumber Shares as provided in
Exhibit A.
Section 3. Securities Act Covenants and Representations. Each Stockholder
hereby agrees and represents to Parent as follows:
(a) Such Stockholder has been advised that the offering, sale and
delivery of Parent Common Shares and Parent VP Tracking Shares pursuant to
the Merger will be registered under the Securities Act on a Registration
Statement on Form S-4. Such Stockholder has also been advised, however,
that to the extent such Stockholder is considered an "affiliate" of the
Company at the time the Merger Agreement is submitted for a vote of the
stockholders of the Company, any public offering or sale by such
Stockholder of any Parent Common Shares or Parent VP Tracking Shares
received by such Stockholder in the Merger will, under current law, require
either (i) the further registration under the Securities Act of any Parent
Common Shares or Parent VP Tracking Shares to be sold by such Stockholder,
(ii) compliance with
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Rule 145 promulgated by the SEC under the Securities Act or (iii) the
availability of another exemption from such registration under the
Securities Act. Such Stockholder agrees to execute and deliver an Affiliate
Letter as contemplated by the Merger Agreement.
(b) Such Stockholder has read this Agreement and the Merger Agreement and
has discussed their requirements and other applicable limitations upon such
Stockholder's ability to sell, transfer or otherwise dispose of Parent
Common Shares or Parent VP Tracking Shares, to the extent such Stockholder
believed necessary, with such Stockholder's counsel or counsel for the
Company.
(c) Such Stockholder also understands that stop transfer instructions
will be given to Parent's transfer agents with respect to Parent Common
Shares and Parent VP Tracking Shares and that a legend will be placed on
the certificates for the Parent Common Shares and Parent VP Tracking Shares
issued to such Stockholder, or any substitutions therefor, to the extent
such Stockholder is considered an "affiliate" of the Company at the time
the Merger Agreement is submitted for a vote of the stockholders of the
Company.
Section 4. Other Covenants and Agreements.
(a) Further Assurances. Each party shall execute and deliver such additional
instruments and other documents and shall take such further actions as may be
reasonably necessary or appropriate to effectuate, carry out and comply with
all of their obligations under this Agreement. Without limiting the generality
of the foregoing, none of the parties hereto shall enter into any agreement or
arrangement (or alter, amend or terminate any existing agreement or
arrangement) or take any other action (or fail to take any other action) if
such action (or failure) would materially impair the ability of any party to
effectuate, carry out or comply with all the terms of this Agreement. Parent
agrees to cooperate with each Stockholder in connection with any filings
required to be made by such Stockholder in connection with the Merger and the
transactions contemplated thereby.
(b) Parent shall not require, nor shall any provision of this Agreement be
deemed to require, any Stockholder to agree in his or her capacity as a
stockholder, and shall not agree on behalf of any Stockholder in such
Stockholder's capacity as a stockholder, to the inclusion in any Authorization
required in connection with the Merger or the other transactions contemplated
by the Merger Agreement of any restriction on any Stockholder's exercise and
enjoyment in his and her capacity as a stockholder of full rights of ownership
of Parent Shares to be acquired in the Merger (including, without limitation,
the voting rights related thereto); provided however that the foregoing shall
not limit or reduce any of the obligations of the Company pursuant to the
Merger Agreement or otherwise alter the rights and obligations of the parties
pursuant to the Merger Agreement or apply to any matters set forth in the
Merger Agreement relating to the Company or any of its Subsidiaries or their
respective assets, businesses or properties.
Section 5. Representations and Warranties of Parent. Parent represents and
warrants, severally and not jointly, to each Stockholder as follows: Each of
this Agreement and the Merger Agreement has been approved by the Board of
Directors of Parent, and the Merger Agreement has been approved by the Board of
Directors of Merger Sub and by Parent as the sole stockholder of Merger Sub, in
each case representing all necessary corporate action on the part of Parent and
Merger Sub, except for the approval of Parent's stockholders contemplated by
the Merger Agreement. Each of this Agreement and the Merger Agreement has been
duly executed and delivered by a duly authorized officer of Parent and, in the
case of the Merger Agreement, Merger Sub. Each of this Agreement and the Merger
Agreement constitutes a valid and binding agreement of Parent and, in the case
of the Merger Agreement, Merger Sub, enforceable against Parent and, in the
case of the Merger Agreement, Merger Sub.
Section 6. Representations and Warranties of the Stockholders. (a) Each
Stockholder represents and warrants to Parent as follows: Such Stockholder has
the power and authority to execute and deliver this Agreement. This Agreement
has been duly executed and delivered by such Stockholder. This Agreement
constitutes the valid and binding agreement of such Stockholder. Except as
provided in Exhibit A, such
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Stockholder has the full power and authority to vote, or execute a consent,
with respect to, all Covered Shares as contemplated hereby. The securities of
the Company listed next to the name of such Stockholder on Part A of Schedule I
hereto are the only securities of the Company owned by such Stockholder and
over which such Stockholder has the power to vote (or direct the voting), the
securities of the Company listed next to the name of such Stockholder on Part B
of Schedule I hereto are the only securities of the Company owned by such
Stockholder over which such Stockholder does not have the power to vote (or
direct the voting), and the securities of the Company listed next to the name
of such Stockholder on Part C of Schedule I hereto are the only securities of
the Company not owned by Stockholder but over which such Stockholder has the
power to vote (collectively, the "Shares").
(b) Except as provided in Exhibit A, each Stockholder is the lawful owner of
the Shares listed on Parts A and B of Schedule I as owned by it, free and clear
of all liens, charges, encumbrances and commitments of every kind, other than
this Agreement, and each Stockholder has the power to vote (including by an
irrevocable power to vote or execute a consent) the Shares listed on Parts A
and C of Schedule I. The execution and delivery by such Stockholder of this
Agreement does not violate or breach any law, contract, instrument, agreement
or arrangement to which such Stockholder is a party or by which such
Stockholder is bound. Since February 9, 1998 through the date hereof, the
Stockholders' have not sold more than 500,000 Shares in the aggregate.
Section 7. Effectiveness. It is a condition precedent to the effectiveness of
this Agreement that the Merger Agreement shall have been duly adopted and
approved and executed and delivered by the parties thereto, but the termination
of the Merger Agreement shall not impair the effectiveness of this Agreement
except to the extent expressly set forth herein. No action by the Company
pursuant to Section 7.2 of the Merger Agreement (or any other provision of the
Merger Agreement) other than actions that give rise to a Termination Date shall
relieve or be deemed to relieve the Stockholders from their obligations under
this Agreement.
Section 8. Miscellaneous.
(a) Notices, Etc. All notices, requests, demands or other communications
required by or otherwise with respect to this Agreement shall be in writing and
shall be deemed to have been duly given to any party when delivered personally
(by courier service or otherwise), when delivered by telecopy and confirmed by
return telecopy, or one day after being mailed by courier service that
guarantees overnight delivery, in each case to the applicable addresses set
forth below:
If to Parent:
AT&T Corp.
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxx Xxxxx, Xxx Xxxxxx 00000
Attn: Vice President-Law and Corporate Secretary
Telecopy: (000) 000-0000
with a copy to:
Xxxxxxx X. Xxxxxxx, Esq.
Xxxxxx X. Xxxxxxxxx, Esq.
Wachtell, Lipton, Xxxxx & Xxxx
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopy: (000) 000-0000
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If to the Stockholders:
Xxxx X. Xxxxxx
Tele-Communications, Inc.
0000 XXX Xxxxxxx
Xxxxxxxxx, Xxxxxxxx 00000
with a copy to:
Xxxxx & Xxxxx
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxxxxx X. XxXxxxx
Telecopy: (000) 000-0000
or to such other address as such party shall have designated by notice so given
to each other party.
(b) Amendments, Waivers, Etc. This Agreement may not be amended, changed,
supplemented, waived or otherwise modified or terminated except by an
instrument in writing signed by Parent and each Stockholder.
(c) Successors and Assigns. This Agreement shall be binding upon and shall
inure to the benefit of and be enforceable by the parties and their respective
successors and assigns, including without limitation in the case of Parent any
corporate successor by merger or otherwise, and in the case of a Stockholder
any trustee, executor, heir, legatee or personal representative succeeding to
the ownership of (or power to vote) such Stockholder's Covered Shares or other
securities subject to this Agreement (including as a result of the death,
disability or incapacity of a Stockholder).
(d) Entire Agreement. This Agreement (together with the Merger Agreement)
embodies the entire agreement and understanding among the parties relating to
the subject matter hereof and supersedes all prior agreements and
understandings relating to such subject matter. There are no representations,
warranties or covenants by the parties hereto relating to such subject matter
other than those expressly set forth in this Agreement and the Merger
Agreement.
(e) Severability. If any term of this Agreement or the application thereof to
any party or circumstance shall be held invalid or unenforceable to any extent,
the remainder of this Agreement and the application of such term to the other
parties or circumstances shall not be affected thereby and shall be enforced to
the greatest extent permitted by applicable law, provided that in such event
the parties shall negotiate in good faith in an attempt to agree to another
provision (in lieu of the term or application held to be invalid or
unenforceable) that will be valid and enforceable and will carry out the
parties' intentions hereunder.
(f) Specific Performance. The parties acknowledge that money damages are not
an adequate remedy for violations of this Agreement and that any party may, in
its sole discretion, apply to a court of competent jurisdiction for specific
performance or injunctive or such other relief as such court may deem just and
proper in order to enforce this Agreement or prevent any violation hereof and,
to the extent permitted by applicable law, each party waives any objection to
the imposition of such relief.
(g) Remedies Cumulative. All rights, powers and remedies provided under this
Agreement or otherwise available in respect hereof at law or in equity shall be
cumulative and not alternative, and the exercise or beginning of the exercise
of any thereof by any party shall not preclude the simultaneous or later
exercise of any other such right, power or remedy by such party.
(h) No Waiver. The failure of any party hereto to exercise any right, power
or remedy provided under this Agreement or otherwise available in respect
hereof at law or in equity, or to insist upon compliance by any other party
hereto with its obligations hereunder, and any custom or practice of the
parties at variance with the
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terms hereof, shall not constitute a waiver by such party of his or her right
to exercise any such or other right, power or remedy or to demand such
compliance.
(i) No Third Party Beneficiaries; Severability. This Agreement is not
intended to be for the benefit of and shall not be enforceable by any person or
entity who or which is not a party hereto. The obligations of each Stockholder
hereunder are several and not joint and neither Stockholder shall be liable for
the actions of the other Stockholder.
(j) Jurisdiction. Each party hereby irrevocably submits to the exclusive
jurisdiction of the Court of Chancery in the State of Delaware or the United
States District Court for the Southern District of New York or any court of the
State of New York located in the City of New York in any action, suit or
proceeding arising in connection with this Agreement, and agrees that any such
action, suit or proceeding shall be brought only in such court (and waives any
objection based on forum non conveniens or any other objection to venue
therein); provided, however, that such consent to jurisdiction is solely for
the purpose referred to in this paragraph (j) and shall not be deemed to be a
general submission to the jurisdiction of said Courts or in the States of
Delaware or New York other than for such purposes. Each party hereto hereby
waives any right to a trial by jury in connection with any such action, suit or
proceeding.
(k) Governing Law. This Agreement and all disputes hereunder shall be
governed by and construed and enforced in accordance with the General
Corporation Law of the State of Delaware to the fullest extent possible.
(l) Name, Captions, Gender. The name assigned this Agreement and the section
captions used herein are for convenience of reference only and shall not affect
the interpretation or construction hereof. Whenever the context may require,
any pronoun used herein shall include the corresponding masculine, feminine or
neuter forms.
(m) Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all of which
together shall constitute one instrument. Each counterpart may consist of a
number of copies each signed by less than all, but together signed by all, the
parties hereto.
(n) Expenses. Parent and each Stockholder shall bear its, his or her own
expenses incurred in connection with this Agreement and the transactions
contemplated hereby.
IN WITNESS WHEREOF, the parties have duly executed this Agreement as of the
date first above written.
AT&T CORP.
/s/ Xxxxxx X. Xxxxxx
By: _________________________________
Name: Xxxxxx X. Xxxxxx
Title: Senior Executive Vice
President
/s/ Xxxx X. Xxxxxx
_____________________________________
Xxxx X. Xxxxxx
/s/ Xxxxxx Xxxxxx
_____________________________________
Xxxxxx Xxxxxx
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SCHEDULE I
SHARE OWNERSHIP/1/
As of February 9, 1998
PART A--SHARES OWNED AND VOTED
LIBERTY MEDIA
TCI GROUP GROUP TCI VENTURES GROUP
------------------ ----------------- ------------------
CLASS
CLASS B CLASS A CLASS B A CLASS B CLASS A CLASS B
NAME OF STOCKHOLDER PREFERRED SHARES SHARES SHARES SHARES SHARES SHARES
------------------- --------- ------- ---------- ------ ---------- ------- ----------
JM...................... 266,700 146 21,186,999 81 12,501,217 -0- 21,241,254
LM...................... 6,900 -0- 784,892 12,726 439,875 -0- 793,240
------- --- ---------- ------ ---------- --- ----------
Total................... 273,600 146 21,971,891 12,807 12,941,092 -0- 22,034,494
======= === ========== ====== ========== === ==========
PART B--SHARES OWNED BUT NOT VOTED
LIBERTY MEDIA
TCI GROUP GROUP TCI VENTURES GROUP
------------------ ----------------- ------------------
CLASS
CLASS B CLASS A CLASS B A CLASS B CLASS A CLASS B
NAME OF STOCKHOLDER PREFERRED SHARES SHARES SHARES SHARES SHARES SHARES
------------------- --------- ------- ---------- ------ ---------- ------- ----------
JM...................... -0- -0- -0- -0- -0- -0- -0-
LM...................... -0- -0- -0- -0- -0- -0- -0-
------- --- ---------- ------ ---------- --- ----------
Total................... -0- -0- -0- -0- -0- -0- -0-
======= === ========== ====== ========== === ==========
PART C--SHARES VOTED BUT NOT OWNED
LIBERTY MEDIA
TCI GROUP GROUP TCI VENTURES GROUP
------------------ ----------------- ------------------
CLASS
CLASS B CLASS A CLASS B A CLASS B CLASS A CLASS B
NAME OF STOCKHOLDER PREFERRED SHARES SHARES SHARES SHARES SHARES SHARES
------------------- --------- ------- ---------- ------ ---------- ------- ----------
JM...................... -0- -0- 18,204,656 -0- 14,292,719 -0- 20,405,394
LM...................... -0- -0- -0- -0- -0- -0- -0-
------- --- ---------- ------ ---------- --- ----------
Total................... -0- -0- 18,204,656 -0- 14,292,719 -0- 20,405,394
======= === ========== ====== ========== === ==========
--------
/1/Includes shares to the extent beneficially owned by such Stockholder in a
Representative Capacity. For purposes of this Agreement, "Representative
Capacity" means as proxy, an executor or administrator of any estate, a
trustee of any trust or in any other fiduciary or representative capacity
(other than as trustee or administrator of any employee benefit plan) if
such Person, in such capacity, directly or indirectly possesses the power to
vote or dispose or direct the voting of any Shares.
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EXHIBIT A
JM may, at any time and from time to time, pledge up to an aggregate of 30
million Shares to banks or other financial institutions to secure indebtedness.
Such pledges and loans are or will be on customary terms and conditions and do
not and will not interfere with the ability of JM to vote or otherwise comply
with his obligations hereunder in any material respect except as set forth in
the following sentence. Such pledges and loans, with respect to up to an
aggregate of 22 million Shares, may contain terms that permit the banks or
other financial institutions, in the event of a default, to sell the pledged
Shares free and clear of any obligations or restrictions under this Voting
Agreement and, in the event of such a sale, the parties agree that the
obligations and restrictions set forth in this Voting Agreement shall not apply
to such Shares; provided, that the terms of any such pledge or loan shall
require the applicable banks or financial institutions to convert any Series B
Shares to Series A Shares prior to any such sale; and provided, further, that
in the event that any such pledge or loan contains such provisions, JM shall
use his best efforts to avoid and prevent the occurrence of any default under
such pledge or loan.
The shares of Series B TCI Group Common Stock, Series B Liberty Media Group
Common Stock and Series B TCI Ventures Group Common Stock owned by the
Stockholders are subject to the provisions of a call agreement, dated as of
February 9, 1998, among the Stockholders and TCI.
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