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EXHIBIT 10.2
CORPORATE AND INTERCOMPANY AGREEMENT
CORPORATE AND INTERCOMPANY AGREEMENT (this "Agreement") dated as of
November __, 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 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 number of shares of the Applicable Stock and whose
denominator is the aggregate number 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.
"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 (i) in connection with the Initial Public
Offering, including the full exercise of all underwriters' over-allotment
options granted in connection therewith, (ii) issuances of Common Stock to any
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General Instrument Entity and (iii) pursuant to any stock option or 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; provided that, within
five business days after the end of each fiscal quarter, Next Level will notify
General Instrument in writing of the number of shares issued in such quarter
pursuant to any stock option or other executive or employee benefit or
compensation plan maintained by Next Level (the "Quarterly Plan Notice"). 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 date of exercise of the Common Stock Option (with
respect to which the Common Stock Option has not been previously exercised). 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
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an applicable Option Notice and prior to the applicable Issuance Event Date (or
within 20 business days after the delivery of the Quarterly Plan Notice) by the
delivery to Next Level of a written notice to such effect (an "Exercise Notice")
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 will, prior to the
applicable Issuance Event Date or, in the case of an exercise following a
Quarterly Plan Notice, within 10 business days after delivery to Next Level of
an Exercise Notice, 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.
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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 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.
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(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.
(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
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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.
(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 or as otherwise directed by General Instrument. 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
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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 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 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,
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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 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
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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 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: Chief Financial Officer
Telecopy No.: (000) 000-0000
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(b) If to General Instrument, to:
General Instrument Corporation
000 Xxxxxxxxxx Xxxxx
Xxxxxxx, XX 00000
Attention: General Counsel
Telecopy No.: (000) 000-0000
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 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.
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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 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
