EXHIBIT 2
STOCKHOLDERS' AGREEMENT
STOCKHOLDERS' AGREEMENT, dated as of November 26, 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 November 13,
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 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 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 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 By-Laws 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-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 accountants
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. If the New Member Director
is temporarily unavailable, New Member may appoint an alternate to act in
his stead, with full powers of substitution.
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 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 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
respective 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 provided, 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 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 information 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 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
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 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.
(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
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.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed as of the date first above written.
TELIGENT, INC.
By:/s/ Xxxx X. Xxxxx
Name: Xxxx X. Xxxxx
Title: Chairman & CEO
MICROWAVE SERVICES, INC.
By:/s/ Xxxxx X. Xxxxxxx
Name: Xxxxx X. Xxxxxxx
Title: Executive Vice President
TELCOM-DTS INVESTORS, L.L.C.
By:/s/ Xxxxxxxx Xxxxx
Name: Xxxxxxxx Xxxxx
Title: President
NTTA&T INVESTMENT INC.
By:/s/ Xxxxxxx Xxxxxxxx
Name: Xxxxxxx Xxxxxxxx
Title: President
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
and
c/o NTT America, Inc.
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xx. Xxxxxx Xxxxxxxx
Fax: 000-000-0000
