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Exhibit 10.2
CORPORATE AND INTERCOMPANY AGREEMENT
CORPORATE AND INTERCOMPANY AGREEMENT (this "Agreement") dated
as of ________________, 1999 by and between GENERAL INSTRUMENT CORPORATION, a
Delaware corporation ("General Instrument"), and NEXT LEVEL COMMUNICATIONS,
INC., a Delaware corporation ("Next Level").
General Instrument beneficially owns ____ shares of Common
Stock, par value $.01 per share ("Common Stock"), of Next Level.
On the date hereof, Next Level will issue shares of Common
Stock in an initial public offering (the "Initial Public Offering") registered
under the Securities Act of 1933, as amended.
NOW, THEREFORE, for good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, General Instrument and
Next Level, for themselves, their successors, and assigns, hereby agree as
follows:
ARTICLE I
DEFINITIONS
1.1 Definitions. As used in this Agreement, the following
terms shall have the following meanings, applicable both to the singular and the
plural forms of the terms described:
"Affiliate" means, with respect to a given Person, any Person
controlling, controlled by or under common control with such Person. For
purposes of this definition, "control" (including, with correlative meanings,
the terms "controlled by" and "under common control with"), as applied to any
Person, means the possession, directly or indirectly, of the power to vote
securities having a majority of the voting power for the election of directors
(or other Persons acting in similar capacities) of such Person or otherwise to
direct or cause the direction of the management and policies of such Person,
whether through the ownership of voting securities or by contract or otherwise.
"Agreement" has the meaning ascribed thereto in the preamble
hereto, as such agreement may be amended and supplemented from time to time in
accordance with its terms.
"Applicable Stock" means at any time the (i) shares of Common
Stock owned by the General Instrument Entities owned on the date hereof, plus
(ii) shares of Common Stock purchased by the General Instrument Entities
pursuant to Article II of this
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Agreement or otherwise, plus (iii) shares of Common Stock that were issued to
General Instrument Entities in respect of shares described in either clause (i)
or clause (ii) in any reclassification, share combination, share subdivision,
share dividend, share exchange, merger, consolidation or similar transaction or
event.
"Common Stock" means the Common Stock, any other class of Next
Level's capital stock representing the right to vote generally for the election
of directors and, if Next Level becomes a subsidiary corporation includable in a
consolidated federal income tax return of General Instrument, any other security
of Next Level treated as stock for purposes of Section 1504 of the Internal
Revenue Code of 1986, as amended.
"General Instrument Entities" means General Instrument and its
Affiliates (other than Affiliates that constitute Next Level Entities), and
"General Instrument Entity" shall mean any of the General Instrument Entities.
"Market Price" of any shares of Common Stock on any date means
(i) the average of the last sale price of such shares for the five trading days
immediately preceding such date on The Nasdaq Stock Market, Inc. or, if such
shares are not listed thereon, on the principal national securities exchange or
automated interdealer quotation system on which such shares are traded or (ii)
if such sale prices are unavailable or such shares are not so traded, the value
of such shares on such date determined in accordance with agreed-upon procedures
reasonably satisfactory to Next Level and General Instrument.
"Next Level California" means Next Level Communications, a
California corporation, and a wholly-owned subsidiary of General Instrument.
"Next Level Entities" means Next Level and its Subsidiaries,
and "Next Level Entity" shall mean any of the Next Level Entities.
"Next Level California Merger" means the merger of Next Level
California with and into Next Level, pursuant to the Agreement and Plan of
Merger, dated as of _______, 1999, among General Instrument, Xxxxxxx Xxxxx
Investors LLC, a Delaware limited liability company, Next Level California, Next
Level Communications L.P., a Delaware limited partnership, and Next Level.
"Nonvoting Stock" means any class of Next Level's capital
stock not representing the right to vote generally for the election of
directors.
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"Ownership Percentage" means, at any time, the fraction,
expressed as a percentage and rounded to the next highest thousandth of a
percent, whose numerator is the aggregate Value of the Applicable Stock and
whose denominator is the aggregate Value of outstanding shares of Common Stock
of Next Level; provided, however, that any shares of Common Stock issued by Next
Level in violation of its obligations under Article II of this Agreement shall
not be deemed outstanding for the purpose of determining the Ownership
Percentage. For purposes of this definition, "Value" means, with respect to any
share of stock, the value of such share determined by General Instrument under
principles applicable for purposes of Section 1504 of the Internal Revenue Code
of 1986, as amended.
"Person" means any individual, partnership, limited liability
company, joint venture, corporation, trust, unincorporated organization,
government (and any department or agency thereof) or other entity.
"Subsidiary" means, as to any Person, any corporation,
association, partnership, joint venture or other business entity of which more
than 50% of the voting capital stock or other voting ownership interests is
owned or controlled, directly or indirectly, by such Person or by one or more of
the Subsidiaries of such Person or by a combination thereof. "Subsidiary," when
used with respect to General Instrument or Next Level, shall also include any
other entity Affiliated with General Instrument or Next Level, as the case may
be, that General Instrument and Next Level may hereafter agree in writing shall
be treated as a "Subsidiary" for the purposes of this Agreement.
"Tax" or "Taxes" means any Federal, state, local or foreign
tax, fee or other assessment or charge of any kind whatsoever including any net
income, gross income, gross receipts, sales, use, ad valorem, value added,
transfer, franchise, profits, license, withholding, payroll, employment, excise,
severance, stamp, capital stock, occupation, property, environmental or windfall
tax, premium, custom, duty or other tax, together with any interest, penalty,
addition to tax, additional amount due or similar items with respect thereto.
1.2 Internal References. Unless the context indicates
otherwise, references to Articles, Sections and paragraphs shall refer to the
corresponding articles, sections and paragraphs in this Agreement and references
to the parties shall mean the parties to this Agreement.
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ARTICLE II
OPTIONS
2.1 Options. (a) Next Level hereby grants to General
Instrument, on the terms and conditions set forth herein, a continuing right
(the "Common Stock Option") to purchase from Next Level, at the times set forth
herein, the number of shares of Common Stock provided in the first sentence of
Section 2.3. The Common Stock Option shall be assignable, in whole or in part
and from time to time, by General Instrument to any General Instrument Entity.
The exercise price for the shares of Common Stock purchased pursuant to the
Common Stock Option shall be the Market Price of the Common Stock as of the date
of first delivery of notice of exercise of the Common Stock Option by General
Instrument (or its permitted assignee hereunder) to Next Level.
(b) The provisions of Section 2.1(a) hereof notwithstanding,
the Common Stock Option granted pursuant to Section 2.1(a) shall not apply and
shall not be exercisable in connection with the issuance by Next Level of any
shares of Common Stock pursuant to any stock option or other executive or
employee benefit or compensation plan maintained by Next Level, so long as, from
and after the date hereof and prior to the issuance of such shares, Next Level
has repurchased from stockholders and not subsequently reissued a number of
shares equal or greater to the number of shares to be issued in any such
issuance.
(c) Next Level hereby grants to General Instrument, on the
terms and conditions set forth herein, a continuing right (the "Nonvoting Stock
Option" and, together with the Common Stock Option, the "Options") to purchase
from Next Level, at the times set forth herein, such number of shares of
Nonvoting Stock as is necessary to allow the General Instrument Entities to own
80 percent of each class of outstanding Nonvoting Stock. The Nonvoting Stock
Option shall be assignable, in whole or in part and from time to time, by
General Instrument to any General Instrument Entity. The exercise price for the
shares of Nonvoting Stock purchased pursuant to the Nonvoting Stock Option shall
be the price at which such Nonvoting Stock is then being sold to third parties,
or, if no Nonvoting Stock is being sold, the fair market value thereof as
determined in good faith by the Board of Directors of Next Level.
2.2 Notice. At least 20 business days prior to the issuance
of any shares of Common Stock (other than in connection with the Initial Public
Offering, including the full exercise of all underwriters' over-allotment
options granted in connection therewith and other than issuances of Common Stock
to any General Instrument Entity and other than pursuant to any stock option or
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other executive or employee benefit or compensation plan maintained by Next
Level) or the first date on which any other event could occur that, in the
absence of a full or partial exercise of the Common Stock Option, would result
in any reduction in the Ownership Percentage, Next Level will notify General
Instrument in writing (a "Common Stock Option Notice") of any plans it has to
issue such shares or the date on which such event could first occur. At least 20
business days prior to the issuance of any shares of Nonvoting Stock (other than
issuances of Nonvoting Stock to any General Instrument Entity) or the first date
on which any event could occur that, in the absence of a full or partial
exercise of the Nonvoting Stock Option, would result in the General Instrument
Entities owning less than 80 percent of each class of outstanding Nonvoting
Stock, Next Level will notify General Instrument in writing (a "Nonvoting Stock
Option Notice" and, together with a Common Stock Option Notice, an "Option
Notice") of any plans it has to issue such shares or the date on which such
event could first occur. Each Option Notice must specify the date on which Next
Level intends to issue such additional shares or on which such event could first
occur (such issuance or event being referred to herein as an "Issuance Event"
and the date of such issuance or event as an "Issuance Event Date"), the number
of shares Next Level intends to issue or may issue and the other terms and
conditions of such Issuance Event.
2.3 Option Exercise and Payment. The Common Stock Option may
be exercised by General Instrument (or any General Instrument Entity to which
all or any part of the Common Stock Option has been assigned) for a number of
shares equal to or less than the number of shares that are necessary for the
General Instrument Entities to maintain, in the aggregate, the Ownership
Percentage prior to giving effect to the applicable Issuance Event or any
issuance by Next Level of any shares of Common Stock pursuant to any stock
option or other executive or employee benefit or compensation plan maintained by
Next Level prior to the applicable Issuance Event. The Nonvoting Stock Option
may be exercised by General Instrument (or any General Instrument Entity to
which all or any part of the Nonvoting Stock Option has been assigned) for a
number of shares equal to or less than the number of shares that are necessary
for the General Instrument Entities to own, in the aggregate, 80 percent of each
class of outstanding Nonvoting Stock. Each Option may be exercised at any time
after receipt of an applicable Option Notice and prior to the applicable
Issuance Event Date by the delivery to Next Level of a written notice to such
effect specifying (i) the number of shares of Common Stock or Nonvoting Stock,
as the case may be, to be purchased by General Instrument, or any of the General
Instrument Entities and (ii) a calculation of the exercise price for such
shares. Upon any such exercise of either Option, Next Level
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will, prior to the applicable Issuance Event Date, deliver to General Instrument
(or any General Instrument Entity designated by General Instrument), against
payment therefor, certificates (issued in the name of General Instrument or its
permitted assignee hereunder or as directed by General Instrument) representing
the shares of Common Stock or Nonvoting Stock, as the case may be, being
purchased upon such exercise. Payment for such shares shall be made by wire
transfer or intrabank transfer of immediately-available funds to such account as
shall be specified by Next Level, for the full purchase price for such shares.
2.4 Effect of Failure to Exercise. Except as provided in
Section 2.6, any failure by General Instrument to exercise either Option, or any
exercise for less than all shares purchasable under either Option, in connection
with any particular Issuance Event shall not affect General Instrument's right
to exercise the relevant Option in connection with any subsequent Issuance
Event.
2.5 Initial Public Offering. Notwithstanding the foregoing,
General Instrument shall not be entitled to exercise the Common Stock Option in
connection with the Initial Public Offering.
2.6 Termination of Options. The Options shall terminate upon
the occurrence of any Issuance Event that, after considering General
Instrument's response thereto and to any other Issuance Events, results in the
Ownership Percentage being less than 30%, other than any Issuance Event in
violation of this Agreement. Each Option, or any portion thereof assigned to any
General Instrument Entity other than General Instrument, also shall terminate in
the event that the Person to whom such Option, or such portion thereof has been
transferred, ceases to be a General Instrument Entity for any reason whatsoever.
Each Option shall also terminate at the election of General Instrument.
ARTICLE III
CERTAIN COVENANT AND AGREEMENTS
3.1 No Violations. (a) For so long as the Ownership
Percentage is greater than 50%, Next Level covenants and agrees that it will not
take any action or enter into any commitment or agreement which may reasonably
be anticipated to result, with or without notice and with or without lapse of
time or otherwise, in a contravention or event of default by any General
Instrument Entity of (i) any provisions of applicable law or regulation,
including but not limited to provisions pertaining to the Internal Revenue Code
of 1986, as amended, or the Employee
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Retirement Income Security Act of 1974, as amended, (ii) any provision of the
certificate of incorporation or by-laws of any General Instrument Entity, (iii)
any credit agreement or other material instrument binding upon any General
Instrument Entity or (iv) any judgment, order or decree of any governmental
body, agency or court having jurisdiction over any General Instrument Entity or
any of its assets.
(b) Next Level and General Instrument agree to provide to the
other any information and documentation requested by the other for the purpose
of evaluating and ensuring compliance with Section 3.1(a) hereof.
(c) Notwithstanding the foregoing Sections 3.1(a) and 3.1(b),
nothing in this Agreement is intended to limit or restrict in any way any
General Instrument Entity's rights as a stockholder of Next Level.
3.2 Tax Matters. (a) For all taxable periods ending on or
before the date hereof, General Instrument shall timely prepare and file with
the appropriate tax authority all returns with respect to Taxes for Next Level
California and shall pay all Taxes shown due on such returns (other than any
Taxes attributable to any action taken after the closing of the Next Level
California Merger by Next Level or any of its Affiliates or any transferee of
Next Level or any of its Affiliates), and such returns shall be prepared
consistently with past practices. Both General Instrument and Next Level shall
prepare any Tax returns relating to General Instrument and Next Level,
respectively, in a manner consistent with the positions taken on such returns.
(b) In the case of an audit or judicial proceeding that
relates to Next Level California or Next Level for periods ending on or before
the date hereof, General Instrument shall have the sole right to control the
conduct of such audit or proceeding. Next Level shall not enter into any
settlement or closing or other agreement with respect thereto without the
consent of General Instrument.
(c) After the date hereof, Next Level shall notify General
Instrument in writing within 10 days following the receipt of written notice of
the commencement of any Tax audit or administrative or judicial proceeding or of
any demand or claim on Next Level. Such notice shall contain factual information
describing the asserted Tax liability in reasonable detail and shall include
copies of any notice or other document received from any taxing authority in
respect of any such asserted tax liability.
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(d) In the case of an audit or administrative or judicial
proceeding that relates to periods ending after the date hereof, so long as
General Instrument owns at least 30% of the number of outstanding shares of
common stock of Next Level, General Instrument and Next Level shall jointly
control the defense and settlement of any such contest and each party shall
cooperate with the other party at its own expense and there shall be no
settlement or closing or other agreement with respect thereto without the
consent of the other party, which consent shall not be unreasonably withheld
and, if Next Level does not assume the defense of any such audit or proceeding,
General Instrument may defend the same in such manner as it may deem
appropriate, including but not limited to, settling such audit or proceeding.
(e) Next Level shall prepare and file any Tax returns for all
taxable periods that end after the date hereof and Taxes shown to be due on such
returns. Such returns shall be prepared in a manner consistent with the prior
practice of Next Level California and, so long as General Instrument owns at
least 30% of the number of outstanding shares of common stock of Next Level,
Next Level shall deliver to General Instrument such returns at least 15 business
days before such return is due to be filed (taking into account any extensions
of time to file such return that have been properly obtained) for General
Instrument's review and comment.
(f) General Instrument shall have the right to object to any
items set forth on any return prepared by Next Level within 7 days of the
delivery of a particular return under section 3.2(e) but only if there is no
reasonable basis for the position taken with respect to an item or items set
forth on such return or such return is otherwise inaccurate. In the event of
such objection, the parties shall attempt in good faith to resolve the dispute
and any resolution shall be final and binding on them. If the parties cannot
resolve any such dispute within 7 days of such delivery, the items remaining in
dispute shall be submitted to an independent accounting firm of international
reputation selected by, and mutually acceptable to, General Instrument and Next
Level and which expense shall be shared equally between General Instrument and
Next Level. The independent accounting firm so selected shall determine the
proper amounts for the items remaining in dispute and General Instrument and
Next Level shall be bound by the determination by the independent accounting
firm absent manifest error. The independent accounting firm shall make any such
determination within 7 days after submission of the remaining disputed items. If
a return is due before the date a disputed item is resolved hereunder, it shall
be filed as prepared and resolved items shall be reflected on an amended return.
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(g) General Instrument and Next Level each shall provide the
other party with such cooperation and information as such other party may
reasonably request in filing any Tax return, amended return or claim for refund,
determining a liability for taxes or a right to refund of Taxes or participating
in or conducting any audit or other proceeding in respect of Taxes. Such
cooperation and information shall include providing copies of relevant tax
returns or portions thereof, together with accompanying schedules and related
work papers and documents relating to rulings or other determinations by taxing
authorities. Next Level shall retain all returns, schedules and work papers and
all material records or other documents relating to Tax matters until the later
of (i) the expiration of the statute of limitations of the taxable periods to
which such returns and other documents relate or (ii) five years following the
date for such returns provided, however, that Next Level shall not dispose of
any such materials if at least 90 business days before the later of the end of
either of the periods described in clauses (i) or (ii) General Instrument has
notified Next Level of its desire to review such material in which case General
Instrument shall be given an opportunity to remove and retain all or any part of
such materials.
3.3 Rohnert Park Lease. (a) Next Level shall sublease the
Rohnert Park facility currently occupied by Next Level (the "Facility") from
General Instrument. Until December 31, 1999, sublease payments shall be in an
amount equal to the amount payable by General Instrument pursuant to the lease
and financing documents entered into under the Participation Agreement dated as
of June 30, 1997 (the "Lease and Finance Agreements"), and Next Level shall make
such payments directly to the parties contemplated by the Lease and Finance
Agreements. Thereafter, Next Level shall pay directly to General Instrument the
greater of a fair market value rent on the Facility or the amounts payable by
General Instrument pursuant to the Lease and Finance Agreements.
(b) Next Level shall have an option to require General
Instrument to exercise its purchase option under the Lease and Finance
Agreements for the Facility and to designate Next Level as the purchaser. The
purchase price to be paid by Next Level to General Instrument shall be equal to
(i) until December 31, 1999, the amount of indebtedness outstanding under the
loans and lessor contributions obtained to facilitate the purchase and
construction of the Facility and sufficient to permit the acquisition of the
Facility and meet the purchase requirements set out in the Lease and Finance
Agreements and obtain a complete release of General Instrument as a guarantor
under the Lease and Finance Agreements and (ii) thereafter, the greater of the
amount
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determined under clause (i) above or the fair market value of the Facility.
(c) For purposes of Section 3.3(a) or (b), "fair market value"
shall be determined in the following manner: General Instrument and Next Level
shall endeavor in good faith to reach a mutual agreement as to such amount for a
period of ten (10) business days, and if they cannot agree within ten (10)
business days, then such amount shall be determined by an independent third
party appraiser selected by General Instrument and reasonably acceptable to Next
Level. The fees and expenses of such appraiser shall be borne equally by General
Instrument and Next Level.
3.4 Board of Directors. Upon the termination of the Voting
Trust Agreement dated the date hereof among General Instrument, Next Level and
ChaseMellon Shareholder Services, LLC (and if at such time General Instrument
holds at least a majority of the outstanding shares of Common Stock and gives
Next Level reasonable advance notice thereof), Next Level and its board of
directors shall take all actions necessary (without requiring any action on the
part of any stockholder of Next Level) to appoint on the date of such
termination any number of additional directors nominated by General Instrument.
Prior to such termination, Next level will not increase the size of its board of
directors without the prior written consent of General Instrument.
3.5 Indemnification. Next Level shall indemnify and hold
harmless each of the General Instrument Entities and each of their respective
officers, directors, employees and agents (collectively, the "Indemnified
Parties"), against any and all costs and expenses from third party claims
(including, without limitation, attorneys' fees, interest, penalties and costs
of investigation, preparation or defense), judgments, fines, losses, claims,
damages, liabilities, demands, actions, causes of action, assessments and
amounts paid in settlement (collectively, "Losses"), including, without
limitation, Losses under indemnification obligations of the Indemnified Parties
to third parties, in each case, based on, arising out of, resulting from or in
connection with any pending, threatened or completed claim, action, suit,
proceeding or investigation, whether civil, criminal, administrative,
investigative or other (collectively, the "Actions"), based on, arising out of,
pertaining to or in connection with (a) any activities or omissions of the Next
Level Entities (and their predecessors) or any of their officers, directors,
employees, affiliates (other than the General Instrument Entities) or agents or
(b) any breach by the Next Level Entities of this Agreement. This indemnity
shall be applicable whether or not such Actions or the facts or
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transactions giving rise to such Actions arose prior to, on or subsequent to the
date hereof. Next Level shall, if and to the extent requested in writing by the
Indemnified Parties, participate in the defense of any such Action with counsel
satisfactory to General Instrument; provided that, if any Indemnified Party
determines that such Indemnified Party has a conflict of interest with Next
Level or any other Indemnified Party, such Indemnified Party shall have the
right to employ in its sole discretion separate counsel to represent such
Indemnified Party. Next Level shall pay all fees and expenses of such separate
counsel. Next Level shall not without the prior written consent of the
Indemnified Parties, settle or compromise or consent to the entry of any
judgment with respect to any pending or threatened Action in respect of which
indemnification may be sought hereunder (whether or not the Indemnified Parties
are actual or potential parties to such Action) unless such settlement,
compromise or consent includes an unconditional release of each Indemnified
Party from all liability arising out of such Action. The provisions of this
Section are for the benefit of, and are intended to create third party
beneficiary rights in favor of, each of the Indemnified Parties.
3.6 Guaranty. Next Level shall obtain a complete release of
General Instrument from its guaranty of Next Level's contract with Xxxx Atlantic
as promptly as practicable after the date hereof and in any event not later than
December 31, 1999.
3.7 Confidentiality. Except as required by law, regulation
or legal or judicial process, General Instrument agrees that neither it nor any
General Instrument Entity nor any of their respective directors, officers,
advisors, agents or employees will without the prior written consent of Next
Level disclose to any other Person any material, non-public information
concerning the business or affairs of Next Level acquired from any director,
officer, advisor, agent or employee of Next Level (including any director,
officer, advisor, agent or employee of Next Level who is also a director,
officer, advisor, agent or employee of General Instrument).
ARTICLE IV
MISCELLANEOUS
4.1 Limitation of Liability. Neither General Instrument nor
Next Level shall be liable to the other for any special, indirect, incidental or
consequential damages of the other arising in connection with this Agreement.
4.2 Affiliates. General Instrument agrees and acknowledges
that it shall be responsible for the performance by
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each General Instrument Entity of the obligations hereunder applicable to such
General Instrument Entity.
4.3 Amendments. This Agreement may be amended only by a
writing duly executed by or on behalf of each of the parties hereto; provided
that, any amendments materially adverse to Next Level shall be approved by a
majority of the directors of Next Level who are not affiliated with General
Instrument.
4.4 Severability. If any provision of this Agreement or the
application of any such provision to any party or circumstances shall be
determined by any court of competent jurisdiction to be invalid, illegal or
unenforceable to any extent, the remainder of this Agreement or such provision
of the application of such provision to such party or circumstances, other than
those to which it is so determined to be invalid, illegal or unenforceable,
shall remain in full force and effect to the fullest extent permitted by law and
shall not be affected thereby, unless such a construction would be unreasonable.
4.5 Notices. All notices and other communications required or
permitted hereunder shall be in writing, shall be deemed duly given upon actual
receipt, and shall be delivered (a) in person, (b) by registered or certified
mail, postage prepaid, return receipt requested or (c) by facsimile or other
generally accepted means of electronic transmission (provided that a copy of any
notice delivered pursuant to this clause (c) shall also be sent pursuant to
clause (b)), addressed as follows:
(a) if to Next Level, to:
Next Level Communications, Inc.
0000 Xxxxx Xxxx Xxxxx
Xxxxxxx Xxxx, XX 00000
Attention:
Telecopy No.:
(b) If to General Instrument, to:
General Instrument Corporation
000 Xxxxxxxxxx Xxxxx
Xxxxxxx, XX 00000
Attention:
Telecopy No.:
or to such other addresses or telecopy numbers as may be specified by like
notice to the other parties.
4.6 Further Assurances. General Instrument and Next Level
shall execute, acknowledge and deliver, or cause to be
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executed, acknowledged and delivered, such instruments and take such other
action as may be necessary or advisable to carry out their obligations under
this Agreement and under any exhibit, document or other instrument delivered
pursuant hereto.
4.7 Counterparts. This Agreement may be executed in any
number of counterparts, each of which shall be deemed an original instrument,
but all of which together shall constitute but one and the same agreement.
4.8 Governing Law. This Agreement and the transactions
contemplated hereby shall be construed in accordance with, and governed by, the
laws of the State of Delaware.
4.9 Entire Agreement. This Agreement constitutes the entire
understanding of the parties hereto with respect to the subject matter hereof.
4.10 Majority Transferee. Upon General Instrument's request,
Next Level agrees that it shall enter into an agreement with the Majority
Transferee (as defined in Next Level's certificate of incorporation) (in
substitution of this Agreement), if any, in form and substance reasonably
satisfactory to the Majority Transferee and Next Level (i) granting to the
Majority Transferee options for the purchase of Common Stock and Nonvoting Stock
substantially upon the same terms and conditions as those contained in Article
II, and (ii) containing other covenants and agreement for the benefit of the
Majority Transferee that are substantially similar to the other covenants and
agreements contained in this Agreement for the benefit of General Instrument;
provided, that such agreement shall contain terms (including covenants and
agreements of the Majority Transferee) for the benefit of Next Level that are
substantially similar to the terms (including the covenants and agreements of
General Instrument) for the benefit of Next Level contained herein.
4.11 Successors. This Agreement shall be binding upon, and
shall inure to the benefit of, the parties hereto and their respective
successors and assigns. Nothing contained in this Agreement (other than Section
3.5), express or implied, is intended to confer upon any other person or entity
any benefits, rights or remedies.
4.12 Specific Performance. The parties hereto acknowledge and
agree that irreparable damage would occur in the event that any of the
provisions of this Agreement were not performed in accordance with their
specific terms or were otherwise breached. Accordingly, it is agreed that they
shall be entitled to an injunction or injunctions to prevent breaches of
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the provisions of this Agreement and to enforce specifically the terms and
provisions hereof in any court of competent jurisdiction in the United States or
any state thereof, in addition to any other remedy to which they may be entitled
at law or equity.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement the day and year first above written.
GENERAL INSTRUMENT CORPORATION
By: __________________________
Name:
Title
NEXT LEVEL COMMUNICATIONS, INC.
By: ___________________________
Name:
Title:
