FORM OF STOCKHOLDERS' AGREEMENT
STOCKHOLDERS' AGREEMENT, dated as of ________ 1997 (this
"Agreement"), by and among Teligent, Inc., a Delaware corporation (the
"Company"), Microwave Services, Inc., a Delaware corporation ("MSI"), Telcom-DTS
Investors, L.L.C., a Delaware limited liability company ("Telcom"), and NTTA&T
Investment Inc. ("New Member" and, together with MSI and Telcom, the
"Stockholders"), an indirect wholly owned subsidiary of Nippon Telegraph and
Telephone Corporation, a Japanese corporation ("NTT").
WHEREAS, the Stockholders are parties to the Amended and
Restated Limited Liability Company Agreement, dated as of _________, 1997 (the
"LLC Agreement"), of Teligent, L.L.C., a Delaware limited liability company (the
"LLC"), entered into pursuant to the Securities Purchase Agreement dated as of
September 30, 1997 by and among the LLC, MSI, Digital Services Corporation, a
Virginia corporation and an affiliate of Telcom, and NTT (the "Purchase
Agreement");
WHEREAS, upon the terms and subject to the conditions of the
Agreement and Plan of Merger, dated as of October 6, 1997 (the "Merger
Agreement"), by and between the Company and the LLC, immediately prior to the
Company's initial public offering of Class A Common Stock (the "IPO") the LLC
will be merged (the "Merger") with and into the Company;
WHEREAS, the Merger Agreement provides that as a result of the
Merger the Stockholders will receive shares of Common Stock of the Company, as
the entity surviving the Merger; and
WHEREAS, the LLC Agreement contemplates, and the parties
hereto have agreed, that following a Conversion Transaction (as defined in the
LLC Agreement), in connection with an IPO, certain rights, privileges and
obligations set forth in the LLC Agreement with respect to the ownership and
governance of the LLC will, to the extent and upon the terms and subject to the
conditions set forth herein, continue to apply with respect to the ownership and
governance of the Company.
NOW, THEREFORE, in consideration of the premises, and for
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties to this Agreement covenant and agree as
follows:
Section 1. Effectiveness of Agreement; Defined Terms. This
Agreement shall not become effective unless and until the Merger is consummated.
If the Merger Agreement is terminated in accordance with its terms, this
Agreement shall automatically terminate. Capitalized terms used but not defined
herein shall have the respective meanings assigned to such terms in the form of
Certificate of Incorporation of the Company attached as Exhibit I to the Merger
Agreement, which will be effective upon the effectiveness of the Merger (the
"Certificate of Incorporation").
Section 2. Information Made Available. The Company covenants
and agrees with each of MSI, Telcom and New Member that, with respect to MSI, so
long as any shares of Class B-Series 1 Common Stock are outstanding, with
respect to Telcom, so long as any shares of Class B-Series 2 Common Stock are
outstanding, and with respect to New Member, so long as any shares of Class
B-Series 3 Common Stock are outstanding, the Company will use all reasonable
efforts to provide regular information to (and updates thereof), consult with,
and obtain the advice of, representatives of MSI designated by MSI's designees
(the "MSI Directors") to the board of directors of the Company (the "Board of
Directors"), representatives of Telcom designated by Telcom's designee (the
"Telcom Director") to the Board of Directors, and representatives of New Member
designated by New Member's designee (the "New Member Director") to the Board of
Directors, respectively, in connection with ordinary decisions of the Board of
Directors or any committee thereof. This Section 2 shall terminate as to New
Member, and New Member shall have no further rights under such Section, upon New
Member's delivery of, or failure to deliver, the notice required by Section 15.
Section 3. Consultation. The Company covenants and agrees with
New Member and Telcom that, with respect to New Member, so long as any shares of
Class B-Series 3 Common Stock are outstanding, and with respect to Telcom, so
long as any shares of
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Class B-Series 2 Common Stock are outstanding, Consultation (as defined below)
with New Member or a representative (the "New Member Representative") designated
from time to time by New Member for such purpose (who need not be the
representative described in Section 12 hereof), and/or with Telcom or a
representative (the "Telcom Representative") designated from time to time by
Telcom for such purpose (who need not be the representative described in Section
12 hereof), respectively, will be required for any action (each, a "Consultation
Event") which (A) materially changes the fundamental character of the Company's
business; (B) replaces the Company's Chief Executive Officer or Chief Operating
Officer; (C) involves the sale or pledge by the Company of a substantial portion
of its assets or any acquisition, divestiture or merger of the Company with
another entity or any joint venture outside the ordinary course of the Company's
business; or (D) involves the issuance by the Company of shares of Common Stock
or Preferred Stock to any telecommunications carrier (a "Strategic Partner").
"Consultation" shall mean and include reasonable advance notice and advance
disclosure of all material facts regarding the Consultation Event by the Company
to the New Member Representative and/or the Telcom Representative, respectively,
and, in the case of the issuance by the Company of shares of Common Stock or
Preferred Stock to a Strategic Partner, due consideration of any objections of
New Member and/or the Telcom Representative, respectively. New Member and Telcom
shall notify the Company as to who the New Member Representative and the Telcom
Representative, respectively, shall be, and shall provide the Company with the
address, business telephone and facsimile number for such respective persons.
Such persons shall be the New Member Representative and the Telcom
Representative, respectively, until such time as the Company receives written
notice from New Member or Telcom, respectively, stating the name, address,
business telephone and facsimile number of the new New Member Representative or
the new Telcom Representative, respectively. This Section 3 shall terminate as
to New Member, and New Member shall have no further rights under such Section,
upon New Member's delivery of, or failure to deliver, the notice required by
Section 15.
Section 4. Confidential Treatment of Proprietary Information.
Except as provided in Section 14 hereof, in the event any Covered Person (as
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hereinafter defined) (the "Receiving Party") obtains from any other Covered
Person or the Company (the "Disclosing Party") information relating to the
Company in whatever form which is confidential or proprietary ("Proprietary
Information"), the Receiving Party (i) shall treat all such Proprietary
Information as confidential; (ii) shall use such Proprietary Information only
for the purposes contemplated in this Agreement; (iii) shall protect such
Proprietary Information, whether in storage or in use, with the same degree of
care as the Receiving Party uses to protect its own proprietary information
against public disclosure, but in no case with less than reasonable care; and
(iv) shall not disclose such Proprietary Information to any third party except
to such employees and agents of the Receiving Party who need to know such
Proprietary Information for the purpose of effectuating this Agreement and who
have been informed of the confidential nature of such Proprietary Information.
"Covered Person" shall mean any Stockholder, or any person (other than the
Company) that directly or indirectly, through one or more intermediaries,
controls, is controlled by, or is under common control with, the Company or any
Stockholder; any officers, directors, shareholders, controlling persons,
partners, employees, representatives or agents of any Stockholder or its
Affiliates (other than the Company); any director, officer, employee or agent of
the Company or its Affiliates; or any person who was, at the time of the act or
omission in question, such a person. As used in this Agreement, "Affiliate"
means, with respect to any specified person, a person that directly or
indirectly, through one or more intermediaries, controls, is controlled by, or
is under common control with, the person specified.
Section 5. Exceptions. The provisions of Section 4 of this
Agreement shall not apply to any Proprietary Information which: (i) was in the
public domain on the date hereof or comes into the public domain other than
through the fault or negligence of the Receiving Party; (ii) was lawfully
obtained by the Receiving Party from a third party without breach of this
Agreement and otherwise not in violation of the Disclosing Party's rights; (iii)
was known to the Receiving Party at the time of disclosure of such Proprietary
Information to the Receiving Party by the Disclosing Party and the Receiving
Party was not, at such time, subject to any confidentiality obligation with
respect
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thereto; (iv) was independently developed by the Receiving Party without making
use of any Proprietary Information of the Disclosing Party; or (v) is required
to be disclosed pursuant to law.
Section 6. Return of Proprietary Information. Subject to
Section 14(d) of this Agreement, upon the dissolution of the Company, and in any
event upon the Disclosing Party's request at any time, the Receiving Party
shall: (i) return to the Disclosing Party all documents (including, any copies
thereof) embodying the Disclosing Party's Proprietary Information and (ii)
certify in writing to the Disclosing Party, within ten (10) days following the
Disclosing Party's request, that all such Proprietary Information has been
returned.
Section 7. Equitable Remedies. Each Stockholder acknowledges
that the extent of damages in the event of the breach of any provision of
Section 4 or 6 hereof would be difficult or impossible to ascertain, and that
there will be available no adequate remedy at law in the event of any such
breach. Each Stockholder therefore agrees that in the event it or any Covered
Person employed by or affiliated with it breaches any provision of Section 4 or
6 hereof, the aggrieved party (including, without limitation, the Company) will
be entitled to injunctive or other equitable relief, in addition to any other
relief to which it may be entitled.
Section 8. CEO as Director. The Stockholders agree to vote, or
act by written consent with respect to, all of their respective shares of Common
Stock in favor of the election of the Chief Executive Officer of the Company as
a member of the Board of Directors.
Section 9. Special Board Votes; Other Board Matters. (a) The
Company and the Stockholders agree that, notwithstanding any provision in the
Company's ByLaws to the contrary, the following actions shall require the
affirmative vote of a majority of the Board of Directors, which, so long as any
shares of Class B-Series 2 Common Stock are issued and outstanding, shall
include the affirmative vote of the Telcom Director and, so long as any shares
of Class B-
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Series 3 Common Stock are issued and outstanding, shall include the affirmative
vote of the New Member Director:
(i) any amendment to the Certificate of Incorporation
or By-laws of the Company which materially and adversely affects the
rights of Telcom or New Member in a manner which discriminates against
Telcom or New Member, either individually or with one or more other
Stockholders, vis-a-vis any of the other Stockholders, provided that
the affirmative vote of a majority of the Board of Directors, including
only the Telcom Director (and not the New Member Director), shall be
necessary to approve such an amendment which so affects Telcom (and not
New Member), and the affirmative vote of a majority of the Board of
Directors, including only the New Member Director (and not the Telcom
Director), shall be necessary to approve such an amendment which so
affects New Member (and not Telcom);
(ii) any transaction between the Company and any
Stockholder or Affiliate thereof involving an amount in excess of
$150,000, except for such transactions contemplated by this Agreement,
the Securities Purchase Agreement between the Company and Nippon
Telegraph and Telephone Corporation dated as of September 30, 1997 (the
"Purchase Agreement") and the Technical Services Agreement dated as of
October 22, 1997 between the Company and NTT America, Inc.
(iii) the appointment of any independent accoun-
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tants or firm of independent accountants, other than a nationally
recognized accounting firm, to serve as the Company's auditors; and
(iv) any action by the Company seeking protection
under any bankruptcy or insolvency law.
(b) So long as, pursuant to the Certificate of Incorporation,
MSI is entitled to elect a majority of the members of the Board of Directors and
to remove or fill vacancies with respect to such directorships, MSI will use all
reasonable efforts to promptly fill any vacancies in such directorships, however
occurring, and to remove and replace any such director elected by MSI who is or
becomes unwilling or unable to serve as such director.
(c) Without limitation of and subject to Section 4 of Article
III of the Company's By-Laws, the Company covenants and agrees with New Member
to use all reasonable efforts under the circumstances to provide the New Member
Director with at least 72 hours prior notice of any special meeting of the Board
of Directors.
Section 10. Committees. (a) The Company and the Stockholders
agree that, so long as any shares of Class B-Series 3 Common Stock are issued
and outstanding, (i) the New Member Director and the New Member Representative
shall have visitation rights at meetings of all significant internal operating
committees of the Board of Directors, if any, and (ii) the New Member Director
shall be a member of any technical, compensation or audit committee, if any, of
the Board of Directors or any other committee designated by the Board of
Directors with the power to negotiate any Consultation Event. In the event no
audit committee of the Board of Directors has been established, the New Member
Director shall have the right to attend, so long as any shares of Class B-Series
3 Common Stock of the Company are issued and outstanding, all meetings involving
the auditor's review of the Company's financial condition and shall have the
right to review and discuss such auditor's reports with such auditor. The New
Member
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Director and the New Member Representative shall also, so long as any shares of
Class B-Series 3 Common Stock of the Company are issued and outstanding, have
visitation rights with respect to each committee of the Board of Directors which
is established of which the New Member Director is not a member and shall
receive no less than 48 hours prior written notice of each meeting of any such
committee. If, during the course of the meeting of any such committee, the New
Member Director shall determine that the matter being considered should be
considered by the full Board of Directors, such committee shall thereupon cease
its consideration of such matter and such matter shall thereupon be referred
back to the full Board of Directors. This Section 10(a) shall terminate, and New
Member shall have no further rights under such Section, upon New Member's
delivery of, or failure to deliver, the notice required by Section 15.
(b) The Company and the Stockholders agree that, so long as
any shares of Class B-Series 2 Common Stock are issued and outstanding, (i) the
Telcom Director and the Telcom Representative shall have visitation rights at
meetings of all significant internal operating committees of the Board of
Directors, if any, and (ii) the Telcom Director shall be a member of any
technical, compensation or audit committee, if any, of the Board of Directors or
any other committee designated by the Board of Directors with the power to
negotiate any Consultation Event. In the event no audit committee of the Board
of Directors has been established, the Telcom Director shall have the right to
attend, so long as any shares of Class B-Series 2 Common Stock of the Company
are issued and outstanding, all meetings involving the auditor's review of the
Company's financial condition and shall have the right to review and discuss
such auditor's reports with such auditor. The Telcom Director and the Telcom
Representative shall also, so long as any shares of Class B-Series 2 Common
Stock of the Company are issued and outstanding, have visitation rights with
respect to each committee of the Board of Directors which is established of
which the Telcom Director is not a member and shall receive no less than 48
hours prior written notice of each meeting of any such committee. If, during the
course of the meeting of any such committee, the Telcom Director shall determine
that the matter being considered should be considered by the full Board of
Directors, such committee shall thereupon
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cease its consideration of such matter and such matter shall thereupon be
referred back to the full Board of Directors.
Section 11. Annual Business Plans and Budgets. The parties
hereto agree that an annual business plan and budget for the Company shall be
prepared by the officers of the Company and submitted to the Board of Directors
for its approval. Each such annual business plan and budget shall contain: (i) a
comprehensive and detailed budget for the upcoming year (including, without
limitation, projected capital expenditures and projected income, expense and
cash flow levels); (ii) such other financial, marketing and other plans and
projections for the upcoming year as the Board of Directors shall deem
appropriate; and (iii) such financial, marketing and other plans and projections
for the upcoming five-year period as the Board of Directors shall deem
appropriate. New Member shall have no further rights under this Section 11 upon
New Member's delivery of, or failure to deliver, the notice required by Section
15.
Section 12. New Member and Telcom Consultants. The parties
hereto agree that at any meeting of the Board of Directors at which the New
Member Director and/or the Telcom Director, respectively, is present, the New
Member Director and/or the Telcom Director, respectively, may each invite a
representative designated by New Member (and who is employed by New Member or an
Affiliate of New Member) or Telcom (and who is employed by Telcom or an
Affiliate of Telcom), respectively, to attend and consult and advise the New
Member Director or the Telcom Director, respectively, on any matter; provided,
that such respective representatives agree with the Company in writing to be
bound by Sections 4, 5, 6 and 7 hereof as if such representatives were Covered
Persons for purposes of such Sections.
Section 13. Agreement to Hold. Each Stockholder agrees
that, for the two-year period immediately following the date of the LLC
Agreement, each will continue to hold no less than 50% of its interest in the
Company which it owns immediately following the Merger; provided, that the
foregoing agreement and all other restrictions imposed on the ability of New
Member or Telcom, respectively, to transfer their respec-
9
tive interests in the Company, except those imposed by law, shall lapse and
be null, void and without further effect, if a Consultation Event occurs even
though New Member or Telcom, respectively, have objected thereto; and provid-
ed, further, that if at the time the agreement contained in this Section 13
shall have lapsed and become null and void and without further effect with
respect to Telcom pursuant to the immediately preceding proviso, MSI is not
entitled, pursuant to the Certificate of Incorporation, to elect a majority of
the members of the Board of Directors, then the agreement contained in this
Section 13 shall automatically lapse and become null and void and without
further effect with respect to MSI.
Section 14. New Member Information Right.
(a) Secunded Employees. So long as any shares of Class
B-Series 3 Common Stock of the Company are issued and outstanding, New Member
and its Affiliates shall have the right, at their expense, to secund to the
Company employees of New Member or its Affiliates (not exceeding a total of five
such employees in any three month period) to observe the Company's operations,
including its technical and marketing activities (such secunded employees being
referred to as the "Secunded Employees"). This Section 14(a) shall automatically
terminate and be of no further force or effect upon New Member's delivery of, or
failure to deliver, the notice required by Section 15.
(b) Status of Secunded Employees; Expenses. The Secunded
Employees shall be and remain employees of New Member (or its Affiliates) for
all purposes, and New Member (or such Affiliates) shall be solely responsible
for, and shall indemnify and hold the Company harmless from and against any
claims for, the payment of any and all salary, bonuses, living expenses, travel
expenses and other compensation, and the provision of all retirement, health
care, insurance and other benefits to such Secunded Employees. New Member (or
its Affiliate) shall be solely responsible for, and shall indemnify and hold the
Company harmless from and against any claims for, the payment of any taxes or
governmental charges of any kind, including, without limitation, withholding
taxes, payroll taxes or unemployment or worker's compensation insurance, with
respect to any such
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Secunded Employees. The Secunded Employees shall, at the Company's expense, be
provided, with reasonable office space and standard office equipment at the
Company's facilities to the extent reasonably necessary for them to carry out
their intended purposes as described in Subsection 14(c) below.
(c) Purpose of Secunded Employees. The Company and New Member
acknowledge that the Secunded Employees will be secunded to the Company so that
they may gain knowledge of the operation of fixed wireless communications
services as conducted by the Company, with a view to enabling New Member and its
Affiliates to provide such services to their customers outside the United
States.
(d) Information Rights. To enable New Member and its
Affiliates to benefit from secunding the Secunded Employees as contemplated by
this Section 14, New Member and its Affiliates shall have the non-exclusive,
perpetual, irrevocable royalty free right and license to use, solely in the
business of New Member and its Affiliates outside the United States, such
product, service, marketing, operational and technical information of the
Company as shall be learned or obtained by the Secunded Employees; provided that
such right and license shall not include any right or license with respect to
any patent (or patent application), utility model, design patent, copyright,
trademark or tradename (or other similar property rights arising under United
States or other laws) relating to specific inventions, technical devices,
software, publications or other works of the Company; and provided further that
if and to the extent such information constitutes confidential or proprietary
information of the Company, New Member will, and will cause its Affiliates to,
use the same efforts as it uses with respect to its own confidential or
proprietary information to keep such information of the Company confidential.
New Member and its Affiliates shall not be entitled to sublicense, assign or
otherwise transfer to any third party any of the rights granted, or any of the
information relating to the Company learned or obtained by them, pursuant to
this Section 14. In addition, the grant of rights by the Company pursuant to
this Section 15 shall be subject to the Company's need to comply with its other
agreements with third parties in existence on the date hereof relating to any of
the Company informa-
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tion referred to in this Section 14, it being understood and agreed that the
Company will use all reasonable efforts to afford New Member and its Affiliates
the full benefit of the rights granted pursuant to this Section 14 in a manner
consistent with such other agreements.
Section 15. New Member Notice of Competition. New Member will
provide the Company with at least 90 days prior written notice of any action
which, pursuant to clause (B) of the proviso to Article FOURTH, Section A(1)(d)
of the Certificate of Incorporation, would result in the automatic conversion of
shares of Class B-Series 3 Common Stock into Class A Common Stock.
Section 16. Foreign Ownership Limitation.
(a) The Company shall have the right to limit New Member's
ownership of the Company to ensure that it does not violate the foreign
ownership limitations imposed by the Communications Act of 1934, as amended, and
by the regulations and decisions of the Federal Communications Commission
(collectively, the "Communications Act").
(b) If at any time after the date hereof the
Company is required by a change in the law or other circumstance to reduce the
level of foreign ownership of the Company, and absent the Company's ability to
obtain a waiver (which the Company will use all reasonable efforts to obtain),
the Company shall have the right, and shall be required (i) at New Member's
election, to refuse to sell equity interests in the Company or any equity
interests in the License Companies (as such term is defined in the Purchase
Agreement) to any Foreign Owner (as defined below) if any such transaction
would, under the Communications Act or other applicable law, adversely impact
New Member's ability to hold its then existing equity interest in the Company,
and (ii) at the election of any Stockholder, to repurchase such equity interests
in the Company, to the extent necessary to comply with applicable foreign
ownership restrictions, first, from all persons, other than the Stockholders,
who hold Foreign Ownership Interests (as defined below), and thereafter from
each of the Stockholders who hold Foreign Ownership Interests, on a pro rata
basis (based on the
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percentage of foreign ownership attributable to each Stockholder), in each case,
for an amount in cash (to the extent permitted by the Delaware corporation law)
equal to the "fair market value" of the equity interests repurchased. If the
class of equity interests to be repurchased (or conversion equivalent) is
publicly traded, "fair market value" shall be the closing price per share or
unit of such equity interest (or conversion equivalent) on the trading day
immediately preceding the date of such repurchase and, if the class of equity
interests to be repurchased (or conversion equivalent) is not publicly traded,
"fair market value" shall be determined by the Board of Directors. In the event
that (i) all or any portion of a Stockholder's equity interest in the Company is
to be repurchased pursuant to this Section 16, (ii) such class of equity
interests (or conversion equivalent) is not publicly traded and (iii) such
Stockholder disputes, by notice to the Company within forty-five (45) days after
receipt of notice from the Board of Directors of the Board of Director's fair
market value determination (a "Valuation Dispute Notice"), then "fair market
value" shall be determined by two appraisers selected by the Company and such
Stockholder, respectively, within forty-five (45) days after delivery of the
Valuation Dispute Notice. If the appraisers chosen by the Company and such
Stockholder cannot reach an agreement within 30 days of their appointment, "fair
market value" shall be determined by a third appraiser to be selected by the
original appraisers chosen by such Stockholder and the Company within 10 days
thereafter. "Foreign Owner" shall mean: (a) any person who is a citizen of a
country other than the United States, (b) any corporation or other legal entity
organized under the laws of any government other than the government of the
United States or of any state, territory or possession of the United States, (c)
any government other than the government of the United States or of any state,
territory or possession of the United States, or (d) any representative of any
of the foregoing, or any entity owned, or whose capital was contributed, in
whole or in part, by any of the foregoing; and "Foreign Ownership Interests"
shall mean any equity interests in the Company or equity interests in the
License Companies held by a Foreign Owner.
Section 17. New Member Co-Sale Rights. MSI and Telcom agree
that New Member will have co-sale rights with respect to any sale or
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transfer by MSI or Telcom, respectively, or their respective Affiliates, to a
single buyer or group, of all of the shares of Common Stock held by MSI or
Telcom or such Affiliates, respectively, which co-sale rights shall be
exercisable in accordance with the same procedures as set forth in Section
10.3(b) of the LLC Agreement (as if such Section were in effect and references
in such Section to an "Interest" being deemed for this purpose to refer to
Common Stock). Notwithstanding the foregoing, it is acknowledged and agreed
that (i) pursuant to Section 5.8 of the LLC Agreement, upon consummation of the
Merger, the Company, New Member and any person or entity who or which was a
member of the LLC but is not a party hereto will cease to have any rights
pursuant to such Sections 10.3(a) and 10.3(b) of the LLC Agreement, except as
provided above in this Section 17 with respect to New Member, and (ii) the co-
sale rights provided for in this Section 17 will in any event not apply with
respect to (A) any sale or transfer of Common Stock which was acquired pursuant
to a public market transaction, (B) any public sale or distribution of Common
Stock, whether pursuant to a registration statement under the Securities Act,
Rule 144 thereunder or otherwise, (C) any sale or transfer of Common Stock to an
Affiliate (as such term is defined in the LLC Agreement) of the selling or
transferring party, provided such Affiliate executes and delivers to the parties
hereto an instrument agreeing to be bound hereby or (D) any pledge of, or grant
of a security interest in, Common Stock, provided such pledge or grant meets the
requirements set forth in Section 10.2(a)(ii), (a)(iii) and (a)(iv) of the LLC
Agreement (as if such Section were still in effect).
Section 18. Miscellaneous.
(a) This Agreement may be modified or amended at any time by
Stockholders holding shares of Common Stock representing at least 50.01% of the
aggregate number of shares of Common Stock held by all Stockholders; provided,
that without the consent of any Stockholder, the Company may (i) enter into
agreements with permitted assignees pursuant to the terms of this Agreement,
providing in substance that such permitted assignees will be bound by this
Agreement and (ii) amend this Agreement (A) to satisfy any requirements,
conditions, guidelines or opinions contained in any
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opinion, directive, order, ruling or regulation of the Securities and Exchange
Commission, the Internal Revenue Service or any other United States federal or
state agency, or in any United States federal or state statute, compliance with
which the Board of Directors deems to be in the best interests of the Company,
(B) to change the name of the Company, and (C) to cure any ambiguity or correct
or supplement any provision of this Agreement that may be incomplete or
inconsistent with any other provision contained herein, so long as any amendment
under this clause (ii) does not adversely affect the investment in the Company
of any Stockholder; provided, further, that, notwithstanding the foregoing
provisions of this Section 18(a), no amendment of this Agreement shall (y)
deprive a Stockholder of any of such Stockholder's rights hereunder without the
prior written consent of such Stockholder, or (z) change the provisions of this
Section 18(a) without the prior written consent of each Stockholder.
(b) Any party to this Agreement may extend the time for the
performance of any of the obligations or other acts of any other party hereto,
or waive compliance with any of the agreements of any other party, in each case
only to the extent that such obligations, agreements and conditions are intended
for its benefit.
(c) This Agreement contains the parties' entire understanding
and agreement with respect to its subject matter, and any and all conflicting or
inconsistent discussions, agreements, promises, representations and statements,
if any, between the parties or their representatives that are not incorporated
in this Agreement shall be null and void and are merged into this Agreement.
(d) This Agreement may be executed in two or more
counterparts, each of which shall constitute an original, but all of which
together shall constitute a single agreement.
(e) This Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware, without giving effect to its
conflicts of law principles.
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(f) The various section headings are inserted for purposes of
reference only and shall not affect the meaning or interpretation of this
Agreement or any provision hereof.
(g) The provisions of this Agreement shall be severable, and
any invalidity, unenforceability or illegality of any provision or provisions of
this Agreement shall not affect any other provision or provisions of this
Agreement, and each term and provision of this Agreement shall be construed to
be valid and enforceable to the full extent permitted by law.
(h) This Agreement may not be assigned by any party without
the prior written consent of the other parties; provided, that in connection
with any Stockholder's transfer of shares of Class B Common Stock to a Permitted
Transferee of such Stockholder, such Stockholder shall require such Permitted
Transferee to agree in writing to become a "Stockholder" for purposes of this
Agreement and to be bound by the terms hereof.
(i) This Agreement shall inure to the benefit of, and be
binding upon, the parties to it and their respective successors and permitted
assigns. Nothing contained in this Agreement, express or implied, is intended to
confer upon any person other than the parties to it and their respective
successors and permitted assigns, any rights or remedies under or by reason of
this Agreement.
(j) All notices, requests, demands and other communications
which are required or may be given pursuant to the terms of this Agreement shall
be in writing and shall be deemed given when delivered by hand, fax (provided,
that a confirming copy is sent by a reputable overnight courier service), or
reputable overnight courier service, to the parties at their respective
addresses set forth in Schedule I hereto or to such other address as any party
shall have designated by notice in writing to the other parties.
(k) The Company, MSI and Telcom covenant and agree with New
Member that any and all disputes hereunder involving any of them and New
16
Member shall be submitted to the same dispute resolution procedures as are set
forth in Section 7.10 of the Purchase Agreement.
(l) Nothing contained herein shall require any Stockholder to
make any further investment in or otherwise contribute capital to the Company.
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IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed as of the date first above written.
TELIGENT, INC.
By:
-----------------------------
Name:
Title:
MICROWAVE SERVICES, INC.
By:
-----------------------------
Name:
Title:
TELCOM-DTS INVESTORS, L.L.C.
By:
-----------------------------
Name:
Title:
NTTA&T INVESTMENT INC.
By:
-----------------------------
Name:
Title:
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SCHEDULE I
Addresses for Notices
Teligent, Inc.
0000 Xxxxxxxx Xxxx
Xxxxxx, Xxxxxxxx 00000
Phone: 000-000-0000
Fax: 000-000-0000
Attention: General Counsel
Microwave Services, Inc.
000 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Phone: 000-000-0000
Fax: 000-000-0000
Attention: President and General Counsel
Telcom-DTS Investors, L.L.C.
000 X. Xxxxx Xxxxxx
Xxxxx 000
Xxxxxxxxxx, Xxxxxxxx 00000
Phone: 000-000-0000
Fax: 000-000-0000
Attention: President and General Counsel
NTTA&T Investment Inc.
c/o Nippon Telegraph and Telephone Corporation
Tokyo Opera City Tower
00-0 Xxxxx-Xxxxxxxx 0-xxxxx
Xxxxxxxx, Xxxxx 000-00
XXXXX
Phone: 000-00-0-0000-0000
Fax: 000-00-0-0000-0000
Attention: Mr. Osamue Inoue
19
