EXHIBIT 99.2
CONFORMED COPY
STOCKHOLDER AGREEMENT dated as of July
20, 1999 (this "Agreement"), between CINCINNATI
XXXX INC., an Ohio corporation ("CBI"), and
GENERAL ELECTRIC PENSION TRUST, a New York
common law trust ("GE").
WHEREAS CBI, Ivory Merger Inc., a Delaware corporation and a
wholly owned subsidiary of CBI ("Sub"), and IXC COMMUNICATIONS, INC., a
Delaware corporation ("IXC"), propose to enter into an Agreement and Plan
of Merger dated as of the date hereof (as the same may be amended or
supplemented, the "Merger Agreement"; terms used but not defined herein
shall have the meanings set forth in the Merger Agreement) providing for
the merger of Sub with and into IXC (the "Merger") upon the terms and
subject to the conditions set forth in the Merger Agreement;
WHEREAS GE owns the number of shares of common stock of IXC set
forth on Schedule A hereto (such shares of common stock of IXC, together
with any other shares of common stock of IXC acquired by GE after the date
hereof and during the term of this Agreement (including through the
exercise of any stock options, warrants or similar instruments), being
collectively referred to herein as the "Subject Shares");
WHEREAS as a condition to its willingness to enter into the
Merger Agreement, CBI has requested that GE enter into this Agreement; and
WHEREAS as a condition to its willingness to enter into this
Agreement, GE has requested that CBI agree to purchase from GE, and GE
agrees to sell to CBI, a portion of the Subject Shares pursuant to a stock
purchase agreement dated as of the date hereof (the "Stock Purchase
Agreement").
NOW, THEREFORE, to induce CBI to enter into, and in consideration
of its entering into, the Merger Agreement, and in consideration of the
premises and the representa tions, warranties and agreements contained
herein, the parties hereto agree as follows:
SECTION 1. Representations and Warranties of GE. GE hereby
represents and warrants to CBI as follows:
(a) Organization; Authority; Execution and Delivery;
Enforceability. GE has all requisite power and authority to enter into this
Agreement and to consummate the transactions contemplated hereby. GE is
duly organized,
validly existing and in good standing under the laws of its jurisdiction of
organization. The execution and delivery of this Agreement by GE and the
consummation by GE of the transactions contemplated hereby have been duly
authorized by all necessary action on the part of GE. This Agreement has
been duly executed and delivered by GE and, assuming due authorization,
execution and delivery by CBI, constitutes a legal, valid and binding
obligation of GE, enforceable against GE in accordance with its terms. The
execution and delivery by GE of this Agreement do not, and the consummation
of the transactions contemplated hereby and compliance with the provisions
hereof, will not, conflict with, or result in any violation of, or default
(with or without notice or lapse of time or both) under, or give rise to a
right of termination, cancelation or acceleration of any obligation or loss
of a benefit under, or result in the creation of any Lien on any properties
or assets of GE under, (i) any provision of the certificate of
incorporation or by-laws or partnership agreement or the comparable
organizational documents applicable to GE, (ii) any loan or credit
agreement, note, bond, mortgage, indenture, lease or other agreement,
instrument, permit, concession, franchise, license or similar authorization
(a "Contract") to which GE is a party or by which any of the properties or
assets of GE are bound or (iii) subject to the filings and other matters
referred to in the following sentence of this Section 1(a), any judgment,
order, decree, statute, law, ordinance, rule or regulation applicable to GE
or its properties or assets, except in the case of each of clauses (ii) and
(iii), as is not materially likely to (x) impair the ability of GE to
perform its obligations under this Agreement or (y) prevent or materially
delay the consummation of the transactions contemplated by this Agreement.
No consent, approval, order or authorization of, action by or in respect
of, or registration, declaration or filing with, any Governmental Entity is
required by or with respect to GE in connection with the execution and
delivery of this Agreement by GE or the consummation by GE of the
transactions contemplated hereby, except for (1) such filings under the
Exchange Act as may be required in connection with this Agreement and the
transactions contemplated hereby, (2) such filings under the
Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended (the "HSR
Act") as may be required in connection with this Agreement and the
transactions contemplated hereby and (3) those which are not materially
likely to (x) impair the ability of GE to perform its obligations under
this Agreement or (y) prevent or materially delay the consummation of the
transactions contemplated by this Agreement. No trust of which GE is a
trustee requires the consent of any beneficiary to the execution and
delivery of this Agreement or to the consummation of the transactions
contemplated hereby.
(b) The Subject Shares. GE is the record and beneficial owner of
(or is the trustee of a trust that is the record holder of, and whose
beneficiaries are the beneficial owners of), and has good and marketable
title to, the Subject Shares set forth on Schedule A hereto, free and clear
of any Liens. GE does not own of record any shares of common stock of IXC
other than the Subject Shares set forth on Schedule A hereto, and does not
beneficially own any shares of common stock of IXC other than Subject
Shares and any shares of common stock of IXC into which its shares of IXC
7-1/4% convertible preferred stock are convertible. GE has the sole right
to vote and Transfer (as defined below) the Subject Shares set forth
opposite its name on Schedule A hereto, and none of such Subject Shares is
subject to any voting trust or other agreement, arrangement or restriction
with respect to the voting or the Transfer of such Subject Shares, except
as set forth in Section 3 of this Agreement.
SECTION 2. Representations and Warranties of CBI. CBI hereby
represents and warrants to GE as follows: CBI has all requisite corporate
power and authority to enter into this Agreement and to consummate the
transactions contemplated hereby. The execution and delivery of this
Agreement by CBI and the consummation of the transactions contemplated
hereby have been duly authorized by all necessary corporate action on the
part of CBI. This Agreement has been duly executed and delivered by CBI
and, assuming due authorization, execution and delivery by GE, constitutes
a legal, valid and binding obligation of CBI, enforceable against CBI in
accordance with its terms. The execution and delivery by CBI of this
Agreement do not, and the consummation of the transactions contemplated
hereby and compliance with the provisions hereof, will not, conflict with,
or result in any violation of, or default (with or without notice or lapse
of time or both) under, or give rise to a right of termination, cancelation
or acceleration of any obligation or loss of a benefit under, or result in
the creation of any Lien on any properties or assets of CBI under, (i) any
provision of the Amended Articles of Incorporation or Amended Regulations
of CBI, (ii) any Contract to which CBI is a party or by which any of its
properties or assets are bound or (iii) subject to the filings and other
matters referred to in the last sentence of this Section 2, any judgment,
order, decree, statute, law, ordinance, rule or regulation applicable to
CBI or any of its properties or assets, except in the case of each of
clauses (ii) and (iii), as is not materially likely to (x) have a Material
Adverse Effect on CBI, (y) impair the ability of CBI to perform its
obligations under this Agreement or (z) prevent or materially delay the
consummation of the transactions contemplated by this Agreement. No
consent, approval, order or authorization of, action by or in respect of,
or registration, declaration or
filing with, any Governmental Entity is required by or with respect to CBI
in connection with the execution and delivery of this Agreement by CBI or
the consummation by CBI of the transactions contemplated hereby except for
(1) such filings under the Exchange Act as may be required in connection
with this Agreement and the transactions contemplated hereby, (2) such
filings under the HSR Act as may be required in connection with this
Agreement and the transactions contemplated hereby and (3) those which are
not materially likely to (x) have a Material Adverse Effect on CBI, (y)
impair the ability of CBI to perform its obligations under this Agreement
or (z) prevent or materially delay the consummation of the transactions
contemplated by this Agreement.
SECTION 3. Covenants of GE. GE covenants and agrees during the
term of this Agreement as follows:
(a) At any meeting of the stockholders of IXC called to vote upon
the Merger or the Merger Agreement or at any adjournment thereof or in any
other circumstances upon which a vote, consent or other approval (including
by written consent) with respect to the Merger or the Merger Agreement is
sought, GE shall, including by executing a written consent solicitation if
requested by CBI, vote (or cause to be voted) the Subject Shares (other
than the Subject Shares which shall have been purchased by CBI) in favor of
the adoption by IXC of the Merger Agreement and the approval of the terms
thereof and of the Merger and each of the other transactions contemplated
by the Merger Agreement. GE hereby agrees not to take any action by written
consent in any circumstance other than in accordance with this paragraph.
(b) Other than in accordance with the terms of this Agreement and
the Stock Purchase Agreement, GE shall not (i) sell, transfer, pledge,
assign or otherwise dispose of (including by gift) (collectively,
"Transfer"), or consent to any Transfer of, any Subject Shares or any
interest therein or enter into any Contract, option or other arrangement
(including any profit sharing or other derivative arrangement) with respect
to the Transfer of, any Subject Shares or any interest therein to any
person other than pursuant to the Merger Agreement or (ii) enter into any
voting arrangement, whether by proxy, voting agreement or otherwise, in
connection with, directly or indirectly, any IXC Takeover Proposal or
otherwise with respect to the Subject Shares. GE shall not commit or agree
to take any action inconsistent with the foregoing. Notwithstanding the
foregoing, GE may Transfer all or a portion of the Subject Shares to any
other person if such person expressly agrees in writing to be bound by all
of the provisions of this Agreement.
(c) From and after the date of this Agreement, GE shall not, and
shall not authorize or permit any of its Subsidiaries or affiliates (other
than IXC) or any of its or their directors, officers, employees, investment
bankers, financial advisors, attorneys, accountants or other
representatives to, directly or indirectly, (i) solicit, initiate,
encourage (including by way of furnishing information), or take any other
action designed to facilitate, any inquiries or the making of any proposal
that constitutes, an IXC Takeover Proposal, (ii) enter into any agreement
with respect to any IXC Takeover Proposal or (iii) participate in any
discussions or negotiations regarding an IXC Takeover Proposal.
(d) GE shall not issue any press release or make any other public
statement, and shall not authorize or permit any of its Subsidiaries or
affiliates (other than IXC) or any of its or their directors, officers,
employees, partners, investment bankers, attorneys or other advisors or
representatives to issue any press release or make any other public
statement, with respect to the Merger Agreement, this Agreement, the Merger
or any of the other transactions contemplated by the Merger Agreement or
this Agreement without the prior written consent of CBI, except as may be
required by applicable law, including any filings required under the
Exchange Act.
SECTION 4. Further Assurances. GE will, from time to time,
execute and deliver, or cause to be executed and delivered, such additional
or further consents, documents and other instruments as CBI may reasonably
request for the purpose of effectuating the matters covered by this
Agreement.
SECTION 5. Certain Events. GE agrees that this Agreement and the
obligations hereunder shall attach to GE's Subject Shares and shall be
binding upon any person or entity to which legal or beneficial ownership of
such Subject Shares shall pass, whether by operation of law or otherwise,
including GE's administrators or successors. In the event of any stock
split, stock dividend, merger, reorganization, recapitalization or other
change in the capital structure of IXC affecting the IXC Common Stock, or
the acquisition of additional shares of IXC Common Stock or other voting
securities of IXC by any Stockholder, the number of Subject Shares listed
on Schedule A hereto shall be adjusted appropriately and this Agreement and
the obligations hereunder shall attach to any additional shares of IXC
Common Stock or other voting securities of IXC issued to or acquired by GE.
SECTION 6. Assignment. Neither this Agreement nor any of the
rights, interests or obligations under this
Agreement shall be assigned, in whole or in part, by operation of law or
otherwise, by any of the parties hereto without the prior written consent
of the other parties hereto, except that CBI may assign, in its sole
discretion, any of or all its rights, interests and obligations under this
Agreement to any direct or indirect wholly owned subsidiary of CBI, but no
such assignment shall relieve CBI of its obligations under this Agreement.
Any purported assignment in violation of this Section 6 shall be void.
Subject to the preceding sentences of this Section 6, this Agreement will
be binding upon, inure to the benefit of, and be enforceable by, the
parties hereto and their respective successors and assigns.
SECTION 7. Termination. This Agreement shall terminate upon the
earlier of (a) the Effective Time and (b) 10 Business Days after the
termination of the Merger Agreement in accordance with its terms. No such
termination of this Agreement shall relieve any party hereto from any
liability for any breach of this Agreement prior to termination.
SECTION 8. General Provisions. (a) Amendments. This Agreement may
not be amended except by an instrument in writing signed by each of the
parties hereto.
(b) Notices. All notices, requests, clauses, demands and other
communications under this Agreement shall be in writing and shall be deemed
given if delivered personally, telecopied (with confirmation) or sent by
overnight or same-day courier (providing proof of delivery) to CBI in
accordance with Section 8.02 of the Merger Agreement and to the
Stockholders at their respective addresses set forth on Schedule A hereto
(or at such other address for a party as shall be specified by like
notice).
(c) Interpretation. When a reference is made in this Agreement to
Sections or Schedules, such reference shall be to a Section or Schedule to
this Agreement unless otherwise indicated. The headings contained in this
Agreement are for reference purposes only and shall not affect in any way
the meaning or interpretation of this Agreement. Wherever the words
"include", "includes" or "including" are used in this Agreement, they shall
be deemed to be followed by the words "without limitation". The words
"hereof", "herein" and "hereunder" and words of similar import when used in
this Agreement shall refer to this Agreement as a whole and not to any
particular provision of this Agreement. The term "or" is not exclusive. The
definitions contained in this Agreement are applicable to the singular as
well as the plural forms of such terms. Any agreement or instrument defined
or referred to herein or in any agreement or instrument that is referred
to herein means such agreement or instrument as from time to time amended,
modified or supplemented. References to a person are also to its permitted
successors and assigns.
(d) Counterparts; Effectiveness. This Agreement may be executed
in one or more counterparts, each of which shall be deemed to be an
original, but all of which, taken together, shall be considered one and the
same agreement and shall become effective when one or more counterparts
have been signed by each of the parties hereto and delivered to the other
party. The effectiveness of this Agreement shall be conditioned upon the
execution and delivery of the Merger Agreement by each of the parties
thereto.
(e) Entire Agreement; No Third-Party Beneficiaries. This
Agreement (including the documents and instruments referred to herein) (i)
constitutes the entire agreement and supersedes all prior agreements and
understandings, both written and oral, among the parties hereto with
respect to the subject matter of this Agreement and (ii) is not intended to
confer upon any person other than the parties hereto any rights or remedies
hereunder.
(f) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE, WITHOUT
REGARD TO ANY PRINCIPLES OF CONFLICTS OF LAWS OF SUCH STATE.
SECTION 9. Enforcement. Each of the parties hereto agrees 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. It is accordingly agreed that the parties
hereto shall be entitled to an injunction or injunctions to prevent
breaches of this Agreement and to enforce specifically the terms and
provisions of this Agreement in any Delaware state court or any Federal
court located in the State of Delaware, this being in addition to any other
remedy to which they are entitled at law or in equity. In addition, each of
the parties hereto (a) consents to submit itself to the personal
jurisdiction of any Delaware state court or any Federal court located in
the State of Delaware in the event any dispute arises out of or under or
relates to this Agreement or any of the transactions contemplated hereby,
(b) agrees that it will not attempt to deny or defeat such personal
jurisdiction by motion or other request for leave from any such court, (c)
agrees that it will not bring any action, suit or proceeding arising out of
or under or relating to this Agreement or any of the transactions
contemplated hereby in any court other than any Delaware state court or any
Federal court located in the State of Delaware and (iv) waives any right to
trial by jury with respect to any action, suit or
proceeding arising out of or under or relating to this Agreement or any of
the transactions contemplated hereby in any Delaware state court or any
Federal court located in the State of Delaware, and hereby further and
unconditionally waives and agrees not to plead or claim in any such court
that any such action, suit or proceeding brought in any such court has been
brought in an inconvenient forum.
IN WITNESS WHEREOF, CBI has caused this Agreement to be signed by
its officer thereunto duly authorized and GE has signed this Agreement, all
as of the date first written above.
CINCINNATI XXXX INC.,
by /s/ Xxxxxxx X. Xxxxxxxxxxx
-----------------------------
Name: Xxxxxxx X. Xxxxxxxxxxx
Title: President and Chief
Executive Officer
GENERAL ELECTRIC PENSION TRUST,
by GENERAL ELECTRIC INVESTMENT
CORPORATION, its investment
manager,
by /s/ Xxxxxx X. Xxxxx
----------------------------
Name: Xxxxxx X. Xxxxx
Title: Executive Vice
President
SCHEDULE A
Number of
Outstanding
Shares of
Stockholder IXC Common Stock
GE 8,624,517
