Exhibit 5
STOCK PURCHASE AGREEMENT
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STOCK PURCHASE AGREEMENT, dated as of April 2, 1999, among
Forstmann Little & Co. Subordinated Debt and Equity Management Buyout
Partnership-IV, a New York limited partnership ("MBO-IV"), Instrument
Partners, a New York limited partnership ("IP" and collectively with
MBO-IV, "FLC"), and Liberty Media Corporation, a Delaware corporation
("Liberty").
RECITALS
WHEREAS, MBO-IV is the owner of 10,161,657 shares of the common
stock, par value $0.01 per share (the "Company Common Stock"), of General
Instrument Corporation, a Delaware corporation (the "Company"), and IP is
the owner of 11,547,008 shares of Company Common Stock;
WHEREAS, MBO-IV and IP desire to sell, and Liberty desires to
purchase, an aggregate of ten million (10,000,000) shares of Company Common
Stock (comprised of 5,319,078 shares from IP and 4,680,922 shares from
MBO-IV) at a price per share of $28.00, all subject to the terms and
conditions set forth herein; and
WHEREAS, contemporaneously with the execution and delivery of
this Agreement, MBO-IV and IP are entering into an agreement with the
Company (the "Company Purchase Agreement") to sell to the Company an
aggregate of five million three hundred thousand (5,300,000) shares of
Company Common Stock.
AGREEMENT
NOW, THEREFORE, for and in consideration of the mutual promises
set forth herein, and upon the terms and subject to the conditions hereof,
the parties hereto, intending to be legally bound, agree as follows:
1. PURCHASE AND SALE
(a) Purchase Price, Payment.
(i) Subject to the terms and conditions contained herein, FLC
hereby agrees to sell, transfer and assign to Liberty and Liberty hereby
agrees to purchase, acquire and accept from FLC, ten million (10,000,000)
shares of Company Common Stock (the "Purchased Shares"). The aggregate
purchase price for the Purchased Shares will be $280,000,000 (the "Purchase
Price"). The number of Purchased Shares shall be appropriately adjusted to
reflect the effects of any stock split, reverse split, stock dividend or
other reclassification or reorganization affecting the capital stock of the
Company, the record date for which occurs on or after the date hereof and
prior to the Closing (as defined below).
(ii) The closing of the purchase and sale of the Purchased Shares
(the "Closing") shall be held at the offices of Xxxxx, Xxxxx, Xxxxxx
Xxxxxxx & Xxxxxxxx, One New York Plaza, New York, New York, or at such
other place as FLC and Liberty may mutually agree, at 9:00 a.m. (New York
City time), on April 5, 1999 or as soon thereafter as practicable after all
conditions to Closing have been satisfied or waived. (The date on which the
Closing occurs is referred to as the "Closing Date".)
(iii) On the Closing Date, each of MBO-IV and IP shall deliver to
Liberty such instruments of transfer, in form and substance reasonably
satisfactory to Liberty, as shall be sufficient to transfer the Purchased
Shares to Liberty, and in exchange therefor (and upon receipt of
confirmation from the Transfer Agent (as defined below) of its receipt of
the instruments of transfer to be delivered to it) Liberty shall pay to
MBO-IV and IP by wire transfer of immediately available funds to the
respective accounts previously designated by MBO-IV and IP the aggregate
Purchase Price.
(b) Representations of FLC. Each of MBO-IV and IP represents and
warrants to Liberty that:
(i) It is a duly organized limited partnership, validly existing
and in good standing under the laws of the State of New York.
(ii) It has all necessary power and authority to execute and
deliver this Agreement, to perform its obligations hereunder, and to
consummate the transactions contemplated hereby; the execution and delivery
of this Agreement by it and the consummation by it of the transactions
contemplated hereby have been duly and validly authorized by all necessary
partnership action, and no other proceedings on its part are necessary to
authorize the execution and delivery of this Agreement by it or to
consummate the transactions contemplated hereby.
(iii) It is the owner of 10,161,657 shares of Company Common
Stock (in the case of MBO-IV) and 11,547,008 shares of Company Common Stock
(in the case of IP).
(iv) Except for Liberty's rights under the Letter Agreement (as
defined below), MBO-IV and IP own the Purchased Shares free and clear of
all security interests, claims, liens and encumbrances of any nature,
including, but not limited to, any rights of third parties in or to the
Purchased Shares.
(v) This Agreement has been duly and validly executed and
delivered by it and, assuming the due execution and delivery hereof by
Liberty, this Agreement is its valid and binding obligation, enforceable
against it in accordance with its terms, except as such enforceability may
be limited by bankruptcy, insolvency, reorganization, moratorium and other
similar laws affecting the rights of creditors generally and by general
principles of equity.
(vi) Immediately after the sale, transfer and assignment thereof
at the Closing, Liberty will have good title to the Purchased Shares free
and clear of all security interests, claims, liens and encumbrances of any
nature (other than any arising pursuant to this Agreement or under state or
federal securities laws or created by Liberty).
(vii) Each of the Registration Rights Agreement, dated as of
April 6, 1992, among MBO-IV, IP, General Instrument Corporation, a Delaware
corporation (the former parent company of the Company), and GI Corporation,
a Delaware corporation, and the letter agreement dated July 25, 1997
between the Company, MBO-IV and IP (the "Registration Rights Agreement"),
has been duly executed and delivered by MBO-IV and IP, and is a valid and
binding obligation of each such party, enforceable against it in accordance
with its terms, except as such enforceability may be limited by bankruptcy,
insolvency, reorganization, moratorium and other similar laws affecting the
rights of creditors generally and by general principles of equity.
(viii) The assignment by MBO-IV and IP of certain of their
rights, benefits and obligations under the Registration Rights Agreement
pursuant to Section 2 hereof will vest in Liberty such rights, benefits and
obligations under the Registration Rights Agreement as are specified
herein.
(ix) Other than pursuant to this Agreement, the Letter Agreement,
the Company Purchase Agreement and the Rule 144 Sale Arrangements (as
defined below), (A) it has no legal obligation, absolute or contingent to
sell shares of Company Common Stock to any person, and (B) no third party
holds any option, warrant or other right to acquire shares of Company
Common Stock from it.
(x) There is no action, suit, investigation or proceeding,
governmental or otherwise, pending or, to the best of its knowledge
threatened, against it specifically relating to the transactions
contemplated by this Agreement, nor is there any basis therefor known to
it.
(xi) Assuming that the Purchased Shares are sold to Liberty in a
transaction exempt from registration under the Securities Act of 1933, as
amended (the "Securities Act"), and from qualification or registration
under applicable state securities laws, (i) no consent, approval or
authorization of, nor any registration, qualification or filing with, any
governmental agency or authority or any other person is required on its
part in order for it to execute and deliver this Agreement and to
consummate the transactions contemplated hereby and (ii) the execution and
delivery of this Agreement by it and the consummation of the transactions
contemplated hereby will not conflict with or result in a material breach
or violation of, or accelerate the maturity or the date upon which
performance must be commenced or completed under, any material agreement to
which it is a party.
(xii)It (A) has duly executed and delivered the Company Purchase
Agreement pursuant to which the Company has agreed, on the terms and
subject to the conditions therein, to purchase five million three hundred
thousand (5,300,000) shares of Company Common Stock from FLC at a purchase
price of $28.00 per share; and (B) has delivered a true and correct copy of
such agreement to Liberty.
(c) Representations of Liberty. Liberty represents and warrants to
each of MBO-IV and IP that:
(i) Liberty is a corporation duly organized, validly existing and
in good standing under the laws of the State of Delaware.
(ii) Liberty has all necessary corporate power and authority to
execute and deliver this Agreement, to perform its obligations hereunder
and to consummate the transactions contemplated hereby; and the execution
and delivery of this Agreement by Liberty, and the consummation by Liberty
of the transactions contemplated hereby, have been duly and validly
authorized by all necessary corporate action on the part of Liberty, and no
other corporate proceedings on the party of Liberty are necessary to
authorize this Agreement or to consummate the transactions contemplated
hereby.
(iii) This Agreement has been duly and validly executed and
delivered by Liberty, and, assuming the due execution and delivery thereof
by each of MBO-IV and IP, is a valid and binding obligation of Liberty
enforceable against Liberty in accordance with its terms, except as such
enforceability may be limited by bankruptcy, insolvency, reorganization,
moratorium and other similar laws affecting the rights of creditors
generally and by general principles of equity.
(iv) There is no action, suit, investigation or proceeding,
governmental or otherwise, pending or, to the best of Liberty's knowledge
threatened, against Liberty specifically relating to the transactions
contemplated by this Agreement, nor is there any basis therefor known to
Liberty.
(v) Assuming that the Purchased Shares are acquired by Liberty in
a transaction exempt from registration under the Securities Act and from
qualification or registration under applicable state securities laws, (A)
no consent, approval or authorization of, nor any registration,
qualification or filing with, any governmental agency or authority or any
other person is required on the part of Liberty in order for Liberty to
execute and deliver this Agreement and for Liberty to purchase the
Purchased Shares at the Closing; and (B) the execution and delivery of this
Agreement by Liberty and the purchase by it of the Purchased Shares at the
Closing will not conflict with or result in a material breach or violation
of, or accelerate the maturity or the date upon which performance must be
commenced or completed under, any material agreement to which Liberty is a
party.
(vi) Except as expressly set forth in this Agreement, Liberty is
not relying on any representations or warranties (whether written or oral)
of FLC. Liberty has consulted with its own advisors to the extent it deemed
necessary and has made its own investment decision based on its own
judgment and upon any advice from any such advisors.
(d) Investment Representations of Liberty. Liberty represents and
warrants to each of MBO-IV and IP that:
(i) Liberty understands that the Purchased Shares it is acquiring
pursuant to this Agreement are being offered and sold pursuant to an
exemption from registration and qualification based in part upon the
representations of Liberty contained herein and that any subsequent
transfer or assignment of the Purchased Shares must be made pursuant to a
transaction which is exempt from registration under the Securities Act or
pursuant to an effective registration statement. Liberty is an
institutional accredited investor within the meaning of Section (a)(1),
(2), (3), (7) or (8) of Rule 501 of the Securities Act.
(ii) Liberty has such knowledge and experience in financial and
business matters that it is capable of evaluating the merits and risks of
the investment contemplated by this Agreement; Liberty is able to bear the
economic risk of its investment in the Company.
(iii) Liberty is acquiring the Purchased Shares solely for its
own account for investment and not with a view toward resale, transfer, or
distribution thereof, nor with any present intention of distributing the
Purchased Shares. No other person has any right with respect to or interest
in the Purchased Shares to be acquired by Liberty, nor has Liberty agreed
to give any person any such interest or right in the future.
2. ASSIGNMENT
Pursuant to and in accordance with the terms and conditions of the
Registration Rights Agreement, and effective upon the consummation of the
transactions contemplated hereby, (a) each of MBO-IV and IP hereby assigns
to Liberty its rights, benefits and obligations with respect to the
Purchased Shares under the Registration Rights Agreement, and (b) Liberty
hereby (i) accepts and assumes such rights, benefits and obligations, and
(ii) agrees to be bound by the terms of the Registration Rights Agreement;
provided, however, that notwithstanding the foregoing, the parties
acknowledge and agree that (x) upon the withdrawal of the registration
statement dated August 26, 1998, FLC shall be entitled to utilize one of
the registrations to which Liberty is entitled pursuant to Section 2.1 of
the Registration Rights Agreement until such time as all Registrable
Securities (as defined in the Registration Rights Agreement) owned by FLC
have been sold and (y) so long as it continues to own Registrable
Securities, FLC shall continue to be entitled to exercise its incidental
registration rights pursuant to Section 2.2 of the Registration Rights
Agreement.
3. DELIVERIES OF FLC AT CLOSING
At the Closing, FLC will deliver to Liberty: (i) a letter to
ChaseMellon Shareholder Services, L.L.C., as transfer agent for the Company
Common Stock (the "Transfer Agent"), instructing the Transfer Agent to
transfer (by book entry transfer) the Purchased Shares to an account
designated by Liberty with the Transfer Agent; and (ii) an irrevocable
proxy (in the form of Exhibits A-1 and A-2 hereto, as applicable) executed
by each of MBO-IV and IP, as the record owner of the Purchased Shares,
granting to Liberty the right to vote all of the Purchased Shares at the
Company's 1999 annual meeting of stockholders (the record date for which
was March 31, 1999).
4. DELIVERIES OF LIBERTY AT CLOSING
At the Closing, Liberty will deliver to FLC the Purchase Price by wire
transfer of immediately available funds to the respective accounts
previously designated by FLC.
5. CONDITIONS TO CLOSING
(a) Conditions Precedent to the Obligations of FLC and Liberty. The
obligations of each of MBO-IV and IP, on the one hand, and Liberty, on the
other, to consummate the transactions contemplated by this Agreement are
subject to the satisfaction at or prior to the Closing Date of each of the
following conditions:
(i) Absence of Injunctions. No permanent or preliminary
injunction or restraining order or other order by any court or other
governmental entity of competent jurisdiction or other legal restraint or
prohibition preventing consummation of the transactions contemplated hereby
as provided herein shall be in effect.
(ii) No Proceedings or Adverse Enactments. There shall not have
been any action taken, or any statute, rule, regulation, order, judgment or
decree enacted, promulgated, entered, issued or enforced by any foreign or
United States federal, state or local governmental entity, and there shall
be no action, suit or proceeding pending or threatened which (i) makes the
transactions contemplated by this Agreement illegal or imposes, or is
reasonably likely to result in the imposition of, material damages or
penalties in connection therewith, or (ii) would, as of or after the
Closing, impose material limitations on the ability of Liberty effectively
to exercise full rights of ownership of the Purchased Shares (including the
right to vote the Purchased Shares on all matters properly presented to the
stockholders of the Company).
(iii) Company Purchase Agreement. (a) All conditions to the
consummation of the transactions contemplated by the Company Purchase
Agreement shall have been satisfied or waived and the parties thereto shall
be fully prepared to consummate the transactions contemplated thereby; and
(b) the transactions contemplated by the Company Purchase Agreement are in
the process of being consummated contemporaneously with the consummation of
the transactions contemplated by this Agreement.
(iv) Rule 144 Sale. MBO-IV and IP shall have entered into an
arrangement (the "Rule 144 Sale Arrangements") with Xxxxxxx Sachs & Co. to
sell an aggregate of at least 4,000,000 shares of Company Common Stock
(other than the Purchased Shares and the shares of Company Common Stock
subject to the Company Purchase Agreement) under Rule 144 of the Securities
Act, and Liberty shall have received evidence of such arrangement
reasonably satisfactory to it.
(b) Conditions Precedent to the Obligations of Liberty. The obligation
of Liberty to consummate the transactions contemplated by this Agreement is
also subject to the satisfaction, at or prior to the Closing Date, of each
of the following conditions, any or all of which may be waived in whole or
in part by Liberty, to the extent permitted by applicable law:
(i) Accuracy of Representations and Warranties. All
representations and warranties of MBO-IV and IP contained in this Agreement
shall, if specifically qualified by materiality, be true and correct and,
if not so qualified, be true and correct in all material respects in each
case as of the date of this Agreement and on and as of the Closing Date,
with the same force and effect as though made on and as of the Closing
Date, except for changes expressly permitted or contemplated by this
Agreement.
(ii) Performance of Agreements. Each of MBO-IV and IP shall have
performed in all material respects all obligations and agreements, and
complied in all material respects with all covenants and conditions,
contained in this Agreement to be performed or complied with by it prior to
or on the Closing Date.
(iii) No Material Adverse Change. Since the date hereof nothing
shall have occurred which, individually or in the aggregate, has had or, in
the reasonable judgment of Liberty, is reasonably likely to have, a
material adverse effect on the Company and its subsidiaries or their
businesses, taken as a whole.
(iv) Officer's Certificates. Liberty shall have received a
certificate, dated the Closing Date, signed by a general partner of each of
MBO-IV and IP (x) as to the satisfaction of the conditions set forth in
clauses (i) and (ii) of this Section 5(b) and clause (iii) of Section 5(a),
and (y) attaching thereto a true and correct copy of the Registration
Rights Agreement.
(v) Company Deliveries. Liberty shall have received (A) a
certificate from an executive officer of the Company, dated the Closing
Date as to the matters referred to in subsection (b)(iii) of this Section
5, and (B) a letter of the Company, dated the Closing Date and signed by an
executive officer of the Company, acknowledging, among other things, the
assignment of rights to Liberty under the Registration Rights Agreement
(such letter to be in form and substance reasonably acceptable to Liberty).
(vi) Withdrawal of Registration Statement. FLC shall have
delivered a letter to the Company requesting the Company to apply to the
Securities and Exchange Commission for withdrawal of the Registration
Statement filed on August 26, 1998.
(vii) Other Deliveries. All other documents and instruments
required under this Agreement (including those required pursuant to Section
3) to have been delivered by each of MBO-IV and IP to Liberty at or prior
to the Closing or as Liberty shall have reasonably requested shall have
been delivered by each of MBO-IV and IP.
(c) Conditions Precedent to the Obligations of FLC. The obligation of
FLC to consummate the transactions contemplated by this Agreement is also
subject to the satisfaction, at or prior to the Closing Date, of each of
the following conditions, any or all of which may be waived in whole or in
part by FLC, to the extent permitted by applicable law:
(i) Accuracy of Representations and Warranties. All
representations and warranties of Liberty contained in this Agreement
shall, if specifically qualified by materiality, be true and correct and,
if not so qualified, be true and correct in all material respects in each
case as of the date of this Agreement and on and as of the Closing Date,
with the same force and effect as though made on and as of the Closing
Date, except for changes expressly permitted or contemplated by this
Agreement.
(ii) Performance of Agreements. Liberty shall have performed in
all material respects all obligations and agreements, and complied in all
material respects with all covenants and conditions, contained in this
Agreement to be performed or complied with by them prior to or on the
Closing Date.
(iii) Officer's Certificates. FLC shall have received a
certificate of Liberty dated the Closing Date, signed by an executive
officer of Liberty, as to the satisfaction of the conditions set forth in
clauses (i) and (ii) above.
(iv) Other Deliveries. All other documents and instruments
required under this Agreement (including those required pursuant to Section
4) to have been delivered by Liberty to FLC at or prior to the Closing, or
as FLC shall have reasonably requested shall have been delivered by
Liberty.
6. TERMINATION
(a) Termination. This Agreement may be terminated and the transactions
contemplated hereby may be abandoned at any time prior to the Closing, (i)
by mutual written consent of Liberty and each of MBO-IV and IP; or (ii) by
either Liberty or FLC: (A) if the Closing shall not have occurred on or
before 2:00 p.m. New York City time (in the case of a termination by FLC)
or 5:00 p.m. New York City time (in the case of a termination by Liberty)
on April 5, 1999, provided that the right to terminate this Agreement
pursuant to this clause (ii)(A) shall not be available to any party whose
failure to perform any of its obligations under this Agreement required to
be performed by it at or prior to the Closing has resulted in the failure
of the Closing to occur before such date, (B) if there has been a material
breach by the other party of any of its representations, warranties,
covenants or agreements contained in this Agreement and such breach shall
not have been cured within five business days after written notice thereof
shall have been received by the party alleged to be in breach or (C) if any
court of competent jurisdiction or other competent governmental entity
shall have issued an order, decree or ruling or taken any other action
permanently restraining, enjoining or otherwise prohibiting any of the
transactions contemplated by this Agreement and such order, decree, ruling
or other action shall have become final and nonappealable.
(b) Effect of Termination. In the event of any termination of this
Agreement by Liberty or FLC pursuant to Section 6(a) hereof, this Agreement
forthwith shall become void, and there shall be no liability or obligation
on the part of any party hereto, except that nothing herein will relieve a
party from liability for any breach of this Agreement occurring prior to
such termination.
7. COVENANTS
(a) Reasonable Efforts. Upon the terms and subject to the conditions
hereof, each of the parties hereto agrees to use its commercially
reasonable efforts to take, or cause to be taken, all appropriate action,
and to do, or cause to be done, all things necessary, proper or advisable
under applicable laws and regulations or otherwise to consummate the
transactions contemplated hereby.
(b) Covenant of FLC. During the period from the date hereof to and
including the 90th day following the Closing (the "Lock-Up Period"),
neither MBO-IV nor IP will, without the prior written consent of Liberty,
directly or indirectly, (i) offer, pledge, sell, contract to sell, sell any
option or contract to purchase, purchase any option or contract to sell,
grant any option, right or warrant for the sale of, or otherwise dispose of
or transfer any shares of Company Common Stock, or any securities
convertible into or exchangeable or exercisable for Company Common Stock,
or (ii) enter into any swap or any other agreement or any transaction that
transfers, in whole or in part, directly or indirectly, the economic
consequence of ownership of the Company Common Stock, whether any such swap
or transaction is to be settled by delivery of Company Common Stock or
other securities, in cash or otherwise; provided, however, that the
provisions of this Section 7(b) shall not be applicable to the sale of
shares of Company Common Stock pursuant to and in accordance with (A) the
Company Purchase Agreement, (B) the Rule 144 Sale Arrangements and (C) a
Block Sale Transaction (as defined below). "Block Sale Transaction" shall
mean a sale of not less than 200,000 shares of Company Common Stock in one
transaction or a series of transactions taking place on a single trading
day (i) pursuant to a sell order placed with a single brokerage firm, (ii)
to a single market-maker or (iii) to an institutional investor, in any case
at a price per share (before selling expenses) of not less than $28.
8. RIGHT OF FIRST REFUSAL
(a) Liberty, as assignee of TCI Ventures Group, LLC ("Ventures
Group"), hereby waives its right of first refusal under that certain letter
agreement, dated August 1, 1998 (the "Letter Agreement"), among MBO-IV, IP,
Ventures Group and the other parties thereto, with respect to the sale of
shares of Company Common Stock pursuant to and in accordance with (i) the
Company Purchase Agreement, (ii) the Rule 144 Sale Arrangements, (iii) any
Block Sale Transaction taking place prior to the conclusion of the Lock-Up
Period and (iv) any Market Sale (as defined below) consummated after the
Lock-Up Period at a price per share (before selling expenses) of $28.00 or
more.
(b) Each of MBO-IV and IP hereby acknowledges and agrees that, except
as provided in subsection 8(a) above, Liberty's right of first refusal
under the Letter Agreement shall continue in effect with respect to all
shares of Company Common Stock owned by MBO-IV or IP following the Closing
in accordance with the terms thereof (including Section 3 thereof);
provided, however, that the parties agree that with respect to any open
market sale of Company Common Stock proposed to be made by FLC after the
Closing at a price per share (before selling expenses) of less than $28.00,
the right of first refusal pursuant to the Letter Agreement (if applicable)
shall be effected as follows:
(x) Each of MBO-IV and IP shall notify Liberty of its intention
to sell in a broker transaction on the New York Stock Exchange or to a
market-maker (a "Market Sale"); such notice (a "Sale Notice") shall
specify the number of shares of Company Common Stock proposed to be
sold and shall specify the price at which MBO-IV or IP is willing to
sell; such Sale Notice shall be in writing and shall be delivered to
Liberty via telecopier and shall constitute an offer by FLC to sell
the number of shares specified therein at the price specified therein;
(y) If Liberty delivers written notice (by telecopier) to MBO-IV
or IP (as applicable) within 24 hours of its receipt of the Sale
Notice accepting the offer set forth in the Sale Notice, Liberty shall
be obligated to thereafter purchase the shares of Company Common Stock
specified in the Sale Notice at the price specified therein, all in
accordance with the terms and procedures set forth in the Letter
Agreement, except that the closing thereunder shall take place on a
mutually agreed date not later than the sixth business day following
Liberty's receipt of the Sale Notice; and
(z) If Liberty does not deliver such notice within the time
specified, MBO-IV and IP shall be permitted to sell up to the
aggregate number of shares specified in the Sale Notice in open market
transactions at a price per share of Company Common Stock not less
than that specified in the Sale Notice during the period ending at the
close of business on the fifth trading day following the date of
delivery of the Sale Notice.
9. MISCELLANEOUS
(a) Further Assurances. From and after the Closing Date, each of
MBO-IV, IP and Liberty shall, at any time and from time to time, make,
execute and deliver, or cause to be made, executed and delivered, such
instruments, agreements, consents and assurances and take or cause to be
taken all such actions as may reasonably be requested by the other party
hereto to effect the purposes and intent of this Agreement.
(b) Expenses. Except as otherwise provided herein, all costs and
expenses, including, without limitation, fees and disbursements of counsel,
financial advisors and accountants, incurred in connection with this
Agreement and the transactions contemplated hereby shall be paid by the
party incurring such costs and expenses, whether or not the Closing shall
occur.
(c) Notices. All notices, requests, demands, waivers and other
communications required or permitted to be given under this Agreement shall
be in writing and shall be deemed to have been duly given on (i) the day on
which delivered personally or by telecopy (with prompt confirmation by
mail) during a business day to the appropriate location listed as the
address below, (ii) three business days after the posting thereof by United
States registered or certified first class mail, return receipt requested,
with postage and fees prepaid or (iii) one business day after deposit
thereof for overnight delivery. Such notices, requests, demands, waivers or
other communications shall be addressed as follows:
(i) if to either MBO-IV or IP to:
c/o Forstmann Little & Co.
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxxxxx
Telecopy No.: (000) 000-0000
with a copy to:
Fried, Frank, Harris, Xxxxxxx & Xxxxxxxx
Xxx Xxx Xxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxx Xxxxxxx, Esq.
Telecopy No.: (000) 000-0000
(ii) if to Liberty to:
Liberty Media Corporation
0000 Xxxx Xxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxx 00000
Attn: Xxxxxxx X. Xxxxxx, Esq.
Telecopy No.: (000) 000-0000
with a copy to:
Xxxxx & Xxxxx, L.L.P.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxxxxx X. XxXxxxx, Esq.
Telecopy No.: (000) 000-0000
or to such other person or address as any party shall specify by notice in
writing to the other party.
(d) Entire Agreement. This Agreement (including the documents referred
to herein) constitutes the entire agreement between the parties and
supersedes all prior agreements and understandings, oral and written,
between the parties with respect to the subject matter hereof.
(e) Amendment. This Agreement may not be amended except by an
instrument in writing signed on behalf of each of the parties.
(f) Governing Law. This Agreement shall be construed in accordance
with and governed by the laws of the State of New York, without regard to
conflicts of laws.
(g) Assignment. No party hereto (or any permitted assignee of such
party's rights or obligations hereunder) may assign its right or delegate
its obligations hereunder without the prior written consent of the other
party hereto, except as otherwise permitted by and in accordance with the
terms hereof and except that Liberty may assign its rights hereunder to an
entity which is a wholly owned subsidiary of Liberty as of the Closing so
long as the representations and warranties made by Liberty herein are
equally true as to such subsidiary. Nothing in this Agreement, expressed or
implied, is intended to confer on any person other than the parties or
their respective successors and assigns, any rights, remedies, obligations
or liabilities under or by reason of this Agreement.
(h) Certain Definitions. As used in this Agreement, the term "person"
shall mean and include any individual, partnership, joint venture,
corporation, trust, unincorporated organization or association or any other
entity or association of any kind and any authority, federal, state, local
or foreign government, any political subdivision of any thereof and any
court, panel, judge, board, bureau, commission, agency or other entity or
body exercising executive, legislative, judicial, regulatory or
administrative functions of or pertaining to any government.
(i) Counterparts. This Agreement may be executed in several
counterparts and as so executed shall constitute one agreement binding on
the parties hereto.
(j) Severability. In the event that any part or parts of this
Agreement shall be held to be unenforceable to its or their full extent,
then it is the intention of the parties hereto that such part or parts
shall be enforced to the full extent permitted under the laws, and in any
event, that all other parts of this Agreement shall remain valid and fully
enforceable as if the unenforceable part or parts had never been a part
hereof.
IN WITNESS WHEREOF, each of the parties hereto has executed this
Agreement as of the date first written above.
FORSTMANN LITTLE & CO. SUBORDINATED
DEBT AND EQUITY MANAGEMENT BUYOUT
PARTNERSHIP-IV
By: FLC XXIX Partnership, L.P.,
General Partner
By:/s/ Xxxxxx X. Xxxxxxx
-----------------------------
Name: Xxxxxx X. Xxxxxxx
Title: General Partner
INSTRUMENTS PARTNERS
By: FLC XXII Partnership, General
Partner
By:/s/ Xxxxxx X. Xxxxxxx
-----------------------------
Name: Xxxxxx X. Xxxxxxx
Title: General Partner
LIBERTY MEDIA CORPORATION
By:/s/ Xxxxxx X. Xxxxxxx
-----------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: President
