STOCKHOLDERS' AGREEMENT
AGREEMENT, dated as of February 27, 1996, among Xxxx X. Xxxxxxxxx, Xx.
("Xxxxxxxxx"), the Xxxx X. Xxxxxxxxx, Xx. 1989 Trust (the "Xxxxxxxxx Trust"),
Xxxxxxx X. Xxxxx ("Xxxxx"), Corporate Advisors, L.P., a Delaware limited
partnership ("Corporate Advisors"), the stockholders set forth on Schedule A-1
(collectively, the "Boston Ventures Stockholders"), the stockholders set forth
on Schedule A-2 (collectively, the "Other Stockholders"), and U S WEST, INC., a
Delaware corporation ("Acquiror"). Xxxxxxxxx, the Xxxxxxxxx Trust, Xxxxx, the
Boston Ventures Stockholders, and the Other Stockholders sometimes are referred
to herein collectively as the "Stockholders" and individually as a
"Stockholder."
W I T N E S S E T H :
- - - - - - - - - -
WHEREAS, each of the Stockholders is the beneficial and record owner of the
shares of capital stock of CONTINENTAL CABLEVISION, INC., a Delaware corporation
(the "Company"), set forth opposite each such Stockholder's name on Schedule
B-1;
WHEREAS, Corporate Advisors possesses certain rights with respect to the
shares of capital stock of the Company owned by the entities listed on Schedule
A-3 (the "CP Entities");
WHEREAS, concurrently with the execution of this Agreement, Acquiror and
the Company are entering into an Agreement and Plan of Merger (the "Merger
Agreement") pursuant to which the Company will be merged with and into Acquiror
(the "Merger"), with Acquiror continuing as the Surviving Corporation; and
WHEREAS, in order to induce Acquiror to enter into the Merger Agreement,
the Stockholders and Corporate Advisors wish to make certain representations,
warranties, covenants and agreements in connection with the Merger.
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration, the receipt and adequacy of which are hereby
acknowledged, the parties hereto hereby agree as follows:
ARTICLE I
DEFINITIONS
1.1 Definitions. Capitalized terms used herein but not otherwise defined
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herein shall have the respective meanings ascribed thereto in the Merger
Agreement and the following terms shall have the following meanings:
"beneficially own" shall have the meaning set forth in Rule 13d-3 under
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the Exchange Act.
"Control" shall mean, as to any person, the power to direct or cause the
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direction of the management and policies of such person, whether through the
ownership of voting securities, by contract or otherwise. The term "Controlling
Person" shall have a correlative meaning.
"CP Shares" shall mean the shares of Company Preferred Stock owned by the
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CP Entities set forth on Schedule B-2.
"Equity Securities" shall have the meaning set forth in Rule 405 under the
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Securities Act.
"Permitted Assignee" shall mean (i) with respect to Xxxxxxxxx and the
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Xxxxxxxxx Trust, (w) Xxxxxxxxx, (x) Xxxxxxxxx'x lineal descendants, (y) a trust
for the benefit of, the estate of, executors, personal representatives,
administrators, guardians or conservators of, any of the individuals referred to
in the foregoing clauses (w) and (x) (but only in their capacity as such) and
(z) charitable trusts and charitable foundations formed by Xxxxxxxxx (including,
without limitation, the Xxxxxxxxx Foundation); (ii) with respect to Xxxxx, (w)
Xxxxx, (x) Xxxxx'x lineal descendants, (y) a trust for the benefit of, the
estate of, executors, personal representatives, administrators, guardians or
conservators of, any of the individuals referred to in the foregoing clauses (w)
and (x) (but only in their capacity as such) and (z) charitable trusts and
charitable foundations formed by Xxxxx and (iii) with respect to the CP
Entities, the Boston Ventures Stockholders and the Other Stockholders, (x) any
Person Controlled by such Stockholder or CP Entity and (y) its respective
partners, members, stockholders or other holders of equity interests in such
Stockholder or CP Entity.
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"Representatives" shall have the meaning set forth in Section 3.4.
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"Restricted Stockholder" shall mean any Stockholder that, individually or
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together with its Affiliates, beneficially owns, or is a member of a "group"
(within the meaning of Section 13(d)(3) of the Exchange Act) that beneficially
owns, 5% or more of Media Stock.
"Stockholder Disclosure Letter" shall have the meaning set forth in
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Section 2.1.
"Voting Securities" shall have the meaning set forth in Rule 405 under the
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Securities Act.
ARTICLE II
REPRESENTATIONS AND WARRANTIES
OF THE STOCKHOLDERS
2.1 Representations and Warranties of the Stockholders. Each Stockholder
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represents and warrants, severally but not jointly, to Acquiror as follows:
(a) Ownership of Company Shares. Except as disclosed in Section 2.1(a)
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of the letter from the Stockholders to Acquiror, dated the date hereof (the
"Stockholder Disclosure Letter"), such Stockholder is the beneficial owner of
the shares of Company Capital Stock set forth opposite such Stockholder's name
on Schedule B-1, free and clear of all liens, claims, charges, security
interests or other encumbrances and, except for this Agreement and the Merger
Agreement, there are no options, warrants or other rights, agreements,
arrangements or commitments of any character to which such Stockholder is a
party relating to the pledge, disposition or voting of any shares of capital
stock of the Company or any of its Subsidiaries that are owned by such
Stockholder, and there are no voting trusts or voting agreements with respect to
such shares. The shares of Company Capital Stock set forth opposite such
Stockholder's name on Schedule B-1 constitute all of the outstanding shares of
capital stock of the Company owned beneficially or of record by such Stockholder
and such Stockholder does not have any options, warrants or other rights to
acquire any additional shares of capital stock of the Company or any security
exercisable or exchangeable for, or convertible into, shares of capital stock of
the Company.
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(b) Authority to Execute and Perform Agreements. Such Stockholder has
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the full legal right and power and all authority required to enter into, execute
and deliver this Agreement and to perform fully such Stockholder's obligations
hereunder. The execution and delivery of this Agreement by such Stockholder have
been duly authorized by all requisite organizational action, if any, on the part
of such Stockholder. This Agreement has been duly executed and delivered and
constitutes the legal, valid and binding obligation of such Stockholder
enforceable against such Stockholder in accordance with its terms, except as the
enforceability may be limited by bankruptcy, insolvency, reorganization,
fraudulent conveyance, moratorium or similar laws now or hereafter in effect
generally affecting creditors' rights or by general principles of equity,
regardless of whether such enforceability is considered in a proceeding in
equity or at law.
(c) No Conflicts; Consents. (i) Except as set forth in Section 2.1(c)
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of the Stockholder Disclosure Letter, the execution and delivery by such
Stockholder of this Agreement do not, and the consummation of the transactions
contemplated hereby will not, conflict with or result in any violation of or
default (with or without notice or lapse of time, or both) under (A) any
contract, agreement or other binding arrangement to which such Stockholder is a
party or (B) any judgment, order, writ, injunction or decree of any court,
governmental body, administrative agency or arbitrator applicable to such
Stockholder.
(ii) Except as set forth in Section 2.1(c) of the Stockholder Disclosure
Letter, no consents, approvals or authorizations of, or notices or filings with,
any Governmental Authority or any Third Party are required to be obtained or
made by such Stockholder in connection with the execution and delivery by such
Stockholder of this Agreement and the consummation of the transactions
contemplated hereby.
(d) Ownership of Acquiror Common Stock. As of the date hereof, except as
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disclosed in Section 2.1(d) of the Stockholder Disclosure Letter or provided for
in this Agreement, (i) such Stockholder does not, and, to its best knowledge,
its Affiliates do not, beneficially own, directly or indirectly, shares of
Communications Stock or Media Stock (or securities convertible into or
exchangeable for any shares of Communications Stock or Media Stock) and (ii)
such
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Stockholder is not, and, to its best knowledge, its Affiliates are not, parties
to any agreement, arrangement or understanding for the purpose of acquiring,
holding, voting or disposing of, shares of Communications Stock or Media Stock
(or securities convertible into or exchangeable for any shares of Communications
Stock or Media Stock).
(e) Information Supplied. None of the information specifically supplied
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or to be supplied by such Stockholder with respect to such Stockholder for
inclusion or incorporation by reference in (i) the Form S-4 will, at the time
the Form S-4 is filed with the SEC and at the time it becomes effective under
the Securities Act, contain any untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary to make the
statements therein not misleading and (ii) the Proxy Statement will, at the date
the Proxy Statement is first mailed to Stockholders and at the time of the
Stockholders' Meeting, contain any untrue statement of a material fact or omit
to state any material fact required to be stated therein or necessary in order
to make the statements therein, in light of the circumstances under which they
are made, not misleading.
2.2 Authority of Corporate Advisors to Act. (a) Corporate Advisors
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represents and warrants that it has full power and authority: (i) pursuant to
the provisions of an Investment Management Agreement dated as of June 17, 1988,
between the State Board of Administration of Florida (the "SBA") and Corporate
Advisors, as amended (the "Management Agreement"), to act on behalf of the SBA
in connection with the transactions contemplated by this Agreement, (ii)
pursuant to the provisions of an Amended and Restated Limited Partnership
Agreement dated as of June 20, 1988, to act on behalf of each of Corporate
Partners, L.P. and Corporate Offshore Partners, L.P. in connection with the
transactions contemplated by this Agreement, and (iii) pursuant to the
provisions of a Co-Investment Agreement dated as of April 27, 1992 (the "Co-
Investment Agreement") to control the voting and, except as set forth in Section
2.2 of the letter from Corporate Advisors to Acquiror, dated the date hereof
(the "Corporate Partners Disclosure Letter"), the disposition of the securities
of the Company owned by Vencap Holdings (1992) Pte Ltd. and Contcable Co-
Investors, L.P. (the "Co-Investors") identified on Schedule B-2 hereto.
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(b) Corporate Advisors also represents and warrants that it has been
granted irrevocable proxies to vote all shares of Company Preferred Stock
indicated as owned by the SBA and the Co-Investors on Schedule B-2 hereto as
well as any shares of Company Common Stock issued upon the conversion or
redemption of such shares of Company Preferred Stock and all other equity
securities of the Company having voting rights obtained by it pursuant to
ownership of the shares of Company Preferred Stock.
ARTICLE III
COVENANTS
3.1 No Disposition or Acquisition of Shares. Subject to Section 3.5
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hereof, each of the Stockholders agrees that, except as set forth in Section 3.1
of the Stockholder Disclosure Letter, such Stockholder shall not, and, except as
set forth in Section 3.1 of the Corporate Partners Disclosure Letter, Corporate
Advisors agrees, with respect to the CP Shares, to cause the CP Entities not to,
sell, transfer, pledge, hypothecate, encumber or otherwise dispose of (except
upon such Stockholder's death), or enter into any contract, option or other
arrangement or understanding with respect to the sale, transfer, pledge,
hypothecation, encumbrance or other disposition of, any of the shares of Company
Capital Stock set forth opposite such Stockholder's name on Schedule B-1 or the
CP Shares, as applicable; provided, however, that such Stockholder or CP
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Entity shall have the right to transfer such shares to a Permitted Assignee if
such Permitted Assignee becomes a party to this Agreement and agrees to be bound
by the terms hereof. Each Stockholder and Corporate Advisors agrees that the
certificates representing the shares of Company Capital Stock owned by such
Stockholder or the CP Entities, as applicable, shall bear a legend indicating
that such shares are subject to this Agreement, which legend may be removed upon
termination of this Agreement. Except as specifically set forth herein, each
Stockholder and Corporate Advisors agrees, with respect to the CP Shares to
cause the CP Entity, not to exchange or convert any shares of Class B Common
Stock for or into shares of Class A Common Stock. Each Stockholder agrees that,
during the Measurement Period (as such term is defined in the Certificate of
Designation of Series B Convertible Preferred Stock of the Company attached as
Exhibit E to the Merger Agreement), such Stockholder shall not, and shall use
its best efforts to
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cause its Affiliates not to, purchase or otherwise acquire (including through
any derivative transactions) any shares of Company Capital Stock.
3.2 Voting Arrangements. Each of the Stockholders agrees, and Corporate
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Advisors agrees with respect to the CP Shares, that, except pursuant to this
Agreement, it shall not grant any proxies, deposit any shares of Company Capital
Stock into a voting trust or enter into any voting agreement with respect to any
shares of Company Capital Stock now or hereafter owned by such Stockholder or
now owned by the CP Entities, as applicable, other than proxies to vote such
shares at any annual or special meeting of stockholders of the Company on
matters unrelated to the matters set forth in Section 4.1 hereof.
3.3 Satisfaction of Conditions to the Merger. Each of the Stockholders
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agrees and Corporate Advisors agrees with respect to the CP Shares that such
Stockholder, in its capacity as such, and Corporate Advisors, acting on behalf
of the CP Entities, shall assist and cooperate with the parties to the Merger
Agreement in doing all things necessary, proper or advisable under Applicable
Laws as promptly as practicable to consummate and make effective the Merger and
the other transactions contemplated by the Merger Agreement and the Transaction
Documents and such Stockholder and Corporate Advisors shall not take any action
that would or is reasonably likely to result in any of its representations and
warranties set forth in this Agreement being untrue as of the date made or in
any of the conditions set forth in Article VIII of the Merger Agreement not
being satisfied.
3.4 No Solicitation. Each of the Stockholders agrees that such
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Stockholder shall not, and, except as set forth in Section 3.4 of the Corporate
Partners Disclosure Letter, Corporate Advisors agrees that it shall not, nor
shall it permit any of its Subsidiaries or Affiliates to, nor shall it authorize
or permit any of its officers, directors, employees, agents, investment bankers,
attorneys, financial advisors or other representatives (collectively,
"Representatives") to, directly or indirectly, solicit, initiate or encourage
(including by way of furnishing information or assistance) or take other action
to facilitate any inquiries or the making of any proposal that constitutes or
may reasonably be expected to lead to, an Acquisition Proposal from any Third
Party, or engage in any discussions or negotiations relating thereto or in
furtherance thereof
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or accept or enter into any agreement with respect to any Acquisition Proposal;
provided, however, that, notwithstanding any other provision of this Agreement,
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if such Stockholder or any representative of Corporate Advisors is a member of
the Board of Directors, such Stockholder or representative may take any action
in such Person's capacity as a director that the Board of Directors would be
permitted to take in accordance with Section 7.10 of the Merger Agreement. Such
Stockholder and Corporate Advisors shall immediately cease and cause to be
terminated any existing solicitation, initiation, encouragement, activity,
discussion or negotiation with any parties conducted heretofore by such
Stockholder or Corporate Advisors, as the case may be, or any of its
Representatives with respect to any of the foregoing. Each such Stockholder and
Corporate Advisors shall promptly (but in any event within 24 hours thereafter)
notify Acquiror orally and in writing of any Acquisition Proposal or any inquiry
which could lead to an Acquisition Proposal, within 24 hours of the receipt
thereof, including the identity of the Third Party making any such Acquisition
Proposal or inquiry and the material terms and conditions of any Acquisition
Proposal, and if such inquiry or proposal is in writing, such Stockholder shall
deliver to Acquiror a copy of such inquiry or proposal.
3.5 Standstill; Transfer Restrictions. (a) Each of Xxxxxxxxx and the
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Xxxxxxxxx Trust agrees that, (i) from the date hereof until the Closing Date and
(ii) from and after the Closing Date for so long as such Stockholder shall be a
Restricted Stockholder, such Stockholder shall not, and shall use its best
efforts to cause its Affiliates not to, without the prior written consent of the
board of directors of Acquiror, (A) in any manner acquire, agree to acquire or
make any proposal to acquire, directly or indirectly, any Equity Securities of
Acquiror, or any rights or options to acquire such Equity Securities (other than
the shares of Media Stock and Series D Preferred Stock received by such
Stockholder in the Merger or acquisitions of Equity Securities of Acquiror in
aggregate amounts not to exceed $20 million), (B) propose to enter into,
directly or indirectly, a merger or other business combination involving
Acquiror or propose to purchase, directly or indirectly, a material portion of
the assets of Acquiror, (C) make, or in any way participate, directly or
indirectly, in, any "solicitation" of "proxies" (as such terms are used in
Regulation 14A under the Exchange Act) to vote or consent or seek to advise or
influence any Person with respect to the
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voting of, or granting of a consent with respect to, any Voting Securities of
Acquiror, (D) form, join or in any way participate in a "group" (within the
meaning of Section 13(d)(3) of the Exchange Act) for the purpose of acquiring,
holding, voting or disposing of any Equity Securities of Acquiror (other than
any such group consisting solely of Xxxxxxxxx, the Xxxxxxxxx Trust and their
Permitted Assignees), (E) otherwise act, alone or in concert with others, to
seek to control or influence in any public manner or public forum the management
or policies of Acquiror; provided, however, that the foregoing shall not limit
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the ability to vote any shares of any Equity Securities of Acquiror, (F)
disclose any intention, plan or arrangement inconsistent with the foregoing, (G)
advise, assist (including by knowingly providing or arranging financing for that
purpose) or encourage any other Person in connection with any of the foregoing,
(H) request Acquiror or any agent of Acquiror, directly or indirectly, to amend
or waive any provision of this Section 3.5(a) (including this sentence) or (I)
take any action which might require Acquiror to make a public announcement
regarding the possibility of a transaction between such Stockholder and Acquiror
(including any of their respective Affiliates).
(b) Xxxxxxxxx, the Xxxxxxxxx Trust and, subject to Section 3.5 of the
Corporate Partners Disclosure Letter, Corporate Advisors agree that, from the
date hereof until the Closing Date, such Stockholder and Corporate Advisors
shall not, and shall use its best efforts to cause its Affiliates not to,
without the prior written consent of the board of directors of Acquiror, sell,
transfer, pledge, encumber or otherwise dispose of, or agree to sell, transfer,
pledge, encumber or otherwise dispose of (including through any "short sales" or
derivative transactions), any Equity Securities of Acquiror or any of its
Subsidiaries or any rights or options to acquire such Equity Securities.
(c) Each of Xxxxxxxxx and the Xxxxxxxxx Trust agrees that, from and after
the Closing Date, for so long as such Stockholder shall be a Restricted
Stockholder, such Stockholder shall not, and shall use its best efforts to cause
its Affiliates not to, without the prior written consent of the board of
directors of Acquiror, sell, transfer, pledge, encumber or otherwise dispose of,
or agree to sell, transfer, pledge, encumber or otherwise dispose of (including
through any "short sales" or derivative transactions), any Equity Securities of
Acquiror, or any
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rights or options to acquire such Equity Securities, except (i) to the
underwriters in connection with an underwritten public offering of shares of
such securities on a firm commitment basis registered under the Securities Act
in accordance with the terms of the Registration Rights Agreement, pursuant to
which the sale of such securities is in a manner that will effect a broad
distribution, (ii) to any Permitted Assignee, provided that such Permitted
Assignee becomes a party to this Agreement and agrees to be bound by the terms
of this Section 3.5(c), (iii) to a Third Party in a transaction that complies
with the volume and manner of sale provisions contained in Rule 144(e) and (f)
as in effect on the date hereof under the Securities Act, (iv) to any Third
Party in a transaction or series of related transactions (other than "short
sales" or derivative transactions) whenever occurring, provided that this clause
(iv) shall be unavailable in any case where such Stockholder sells more than 3%
of any class or series of Equity Securities of Acquiror to a Person or "group"
(within the meaning of Section 13(d)(3) of the Exchange Act), (v) a bona fide
pledge of shares of Equity Securities of Acquiror to a financial institution to
secure borrowings of such Stockholder as permitted by Applicable Laws, and (vi)
pursuant to the terms of any tender or exchange offer for Equity Securities of
Acquiror made in compliance with the applicable provisions of the Exchange Act
(but only so long as such Stockholder is at the time in compliance with the
provisions of Section 3.5(a) hereof and such tender or exchange offer does not
involve any past violation of such provisions by such Stockholder).
(d) Each of Xxxxxxxxx and the Xxxxxxxxx Trust agree that from and after
the Closing Date until the one-year anniversary thereof, such Stockholder shall
not sell, transfer, pledge, encumber or otherwise dispose of (including through
any "short sales" or derivative transactions) any equity securities of Acquiror
received by such Stockholder pursuant to the Merger; provided, however, that
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such Stockholder shall have the right to transfer such shares to a Permitted
Assignee if such Permitted Assignee becomes a party to this Agreement and
agrees to be bound by the terms hereof.
(e) For the purposes of this Section 3.5, the term Acquiror shall
include any successor, by operation of law or otherwise, or any Person that
acquires or succeeds to all or substantially all of the assets of the Media
Group. In the event of any such succession or acquisition, notwith-
10
standing anything to the contrary contained herein, the provisions of Section
3.5(a) hereof shall continue for a period of five years from the consummation of
such event.
3.6 Non-Competition. (a) Except as otherwise provided in Section 3.6(b),
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(1) Xxxxxxxxx shall not, until the first anniversary of the date (the
"Termination Date") Xxxxxxxxx ceases to be an employee of the Company or
Acquiror or their respective Subsidiaries or Affiliates or, if the Termination
Date is after December 31, 2001, the six month anniversary of the Termination
Date and (2) Xxxxx shall not, until the later of (x) the first anniversary of
the date Xxxxx ceases to be an employee of the Company or Acquiror or their
respective Subsidiaries or Affiliates and (y) December 31, 1998, directly or
indirectly:
(i) engage in any activity in the telecommunications business (which shall
include, but not be limited to, the provision of video, voice and data
services), directly or indirectly (whether as an employee, officer, director,
agent, consultant, proprietor, partner, principal stockholder or otherwise),
other than as required for the performance of his employment by the Company or
by a Subsidiary. For the purposes of this Section 3.6, the telecommunications
business shall include the acquisition of existing telecommunications systems
and the obtaining of franchises (or the renewal of existing franchises) for the
construction and operation of telecommunications systems to provide voice, data
and video services in communities throughout the United States of America and in
certain foreign countries and the investment in and participation in the
operating of other telecommunications and cable programming ventures; or
(ii) engage in any action, activity or course of conduct which is
detrimental to the business or business reputation of the Company or any of its
Subsidiaries, including (A) soliciting, recruiting or hiring any employees of
the Company or any of its Subsidiaries and (B) soliciting or encouraging any
employee of the Company or any of its Subsidiaries to leave the employment of
the Company or any of its Subsidiaries and (C) disclosing or furnishing to
anyone any confidential information relating to the Company or any of its
Subsidiaries or otherwise using such confidential information for its own
benefit or the benefit of any other person.
(b) Nothing contained in Section 3.6(a) shall prohibit or otherwise
restrict Xxxxxxxxx from acquiring or
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owning, directly or indirectly, for investment or other legitimate business
purposes not intended to circumvent this Agreement, securities of any entity
engaged, directly or indirectly, in a business engaged in the telecommunications
business if either (i) such entity is a public entity and Xxxxxxxxx (A) is not a
Controlling Person of, or a member of a group which Controls, such entity and
(B) owns, directly or indirectly, no more than 5% of any class of Equity
Securities of such entity or (ii) such entity is not a public entity and
Xxxxxxxxx (A) is not a Controlling Person of, or a member of a group that
Controls, such entity and (B) owns, directly or indirectly, no more than 10% of
any class of Equity Securities of such entity.
(c) Xxxxxxxxx and Xxxxx acknowledge and agree that the covenants and
restrictions contained in this Section 3.6 are reasonable and that they shall
not in any way challenge the reasonableness or the enforceability of this
Section 3.6 or any covenant or restriction contained herein.
3.7 Conversion of Class B Common Stock. In the event the Charter
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Amendment is not approved at the Initial Stockholders' Meeting, then promptly
thereafter, but in any event prior to the record date established by the Company
for the Additional Stockholders' Meeting, Xxxxxxxxx and the Xxxxxxxxx Trust
agree to convert a number of shares of Class B Common Stock into Class A Common
Stock in an amount equal to the lesser of (i) all of their respective shares of
Class B Common Stock or (ii) that number of shares of Class B Common Stock such
that Xxxxxxxxx will beneficially own at least a majority of the outstanding
shares of Class A Common Stock as of such record date. Xxxxxxxxx and the
Xxxxxxxxx Trust agree to comply with the provisions of Section 4.1 hereof with
respect to such shares including, without limitation, voting all of such shares
of Class B Common Stock in favor of the Charter Amendment. The number of shares
of Class B Common Stock to be converted by Xxxxxxxxx and the Xxxxxxxxx Trust
shall be reduced by the number of shares of Class A Common Stock beneficially
owned by Persons other than Xxxxxxxxx for which an irrevocable voting agreement
or proxy has been submitted to Acquiror to vote such shares in favor of the
Charter Amendment and the Merger Agreement.
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ARTICLE IV
PROXY; CONVERSION;
ELECTIONS; WAIVER OF RIGHTS
4.1 Proxy. Each Stockholder hereby agrees and Corporate Advisors agrees
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with respect to the CP Shares that, at any meeting of the stockholders of the
Company, however called, including any Stockholders' Meeting, and at every
adjournment thereof, and in any action by written consent of the stockholders of
the Company, to (a) vote all of the shares of Company Capital Stock then owned
by such Stockholder or the CP Shares, as applicable, in favor of the adoption of
the Merger Agreement as in effect on the date hereof (as such agreement may be
amended (1) as contemplated by Section 7.16(b) of the Merger Agreement or (2)
with the consent of such Stockholder or Corporate Advisors, as the case may be)
and each of the other transactions contemplated thereby and any action required
in furtherance thereof, (b) vote such shares in favor of adoption of the Charter
Amendment, (c) vote such shares against any action or agreement that would
result in a breach in any material respect of any covenant, representation or
warranty or any other obligation of the Company under the Merger Agreement, and
(d) vote such shares against any Acquisition Proposal or any other action or
agreement that, directly or indirectly, is inconsistent with or that would, or
is reasonably likely to, directly or indirectly, impede, interfere with or
attempt to discourage the Merger or any other transaction contemplated by the
Merger Agreement, including, but not limited to (i) any extraordinary corporate
transaction (other than the Merger on the terms set forth in the Merger
Agreement), such as a merger, consolidation, business combination,
reorganization, recapitalization or liquidation involving the Company or any of
its Subsidiaries, (ii) a sale or transfer of a material amount of assets of the
Company or any of its Subsidiaries, or (iii) any material change in the
Company's corporate structure or business; provided, however, that, if such
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Stockholder or any representative of Corporate Advisors is a member of the Board
of Directors of the Company, nothing herein shall be construed to obligate such
Stockholder or representative to act in such Stockholder's or representative's
capacity as a director in any manner which may conflict with such Person's
fiduciary duties as a director of the Company.
In furtherance of the foregoing, (i) each Stockholder hereby appoints
Acquiror and the proper officers
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of Acquiror, and each of them, with full power of substitution in the premises,
its proxies to vote all such Stockholder's shares of Company Capital Stock at
any meeting, general or special, of the stockholders of the Company, and to
execute one or more written consents or other instruments from time to time in
order to take such action without the necessity of a meeting of the stockholders
of the Company, in accordance with the provisions of the preceding paragraph and
(ii) Acquiror hereby agrees to vote such shares or execute written consents or
other instruments in accordance with the provisions of the preceding paragraph.
The proxy and power of attorney granted herein shall be irrevocable during
the term of this Agreement, shall be deemed to be coupled with an interest and
shall revoke all prior proxies granted by such Stockholder. Such Stockholder
shall not grant any proxy to any person which conflicts with the proxy granted
herein, and any attempt to do so shall be void. The power of attorney granted
herein is a durable power of attorney and shall survive the disability or
incompetence of such Stockholder.
4.2 Conversion. Immediately prior to the Effective Time, Corporate
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Advisors agrees to cause the conversion of all of the CP Shares into shares of
Company Common Stock.
4.3 Waiver of Appraisal Rights. Each Stockholder and Corporate Advisors,
--------------------------
with respect to the CP Shares, hereby waives its rights to appraisal under
Section 262 of the DGCL with respect to any shares of Company Capital Stock
owned by it or the CP Shares, as applicable, in connection with the transactions
contemplated by the Merger Agreement.
4.4 Waiver of Certain Rights. Each Stockholder hereby waives and agrees
------------------------
not to assert any claims or rights it may have against any director of the
Company in respect of approval or adoption of the Merger Agreement or the
consummation of the Merger or the other transactions contemplated thereby.
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ARTICLE V
MISCELLANEOUS
5.1 Termination. This Agreement shall terminate upon the earlier to
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occur of (i) the mutual consent of Acquiror, all of the Stockholders and
Corporate Advisors, (ii) the termination of the Merger Agreement prior to the
consummation of the Merger (except that if the Merger Agreement is terminated
pursuant to Section 9.1(h) thereof, the last sentence of Section 3.1 of this
Agreement shall not terminate), and (iii) the tenth anniversary of the Closing
Date.
5.2 Amendment. This Agreement may be amended only by a written
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instrument executed by the parties or their respective successors or assigns.
5.3 Notices. Notices, requests, permissions, waivers and other
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communications hereunder shall be in writing and shall be deemed to have been
duly given if signed by the respective persons giving them (in the case of any
corporation the signature shall be by an officer thereof) and delivered by hand,
deposited in the United States mail (registered or certified, return receipt
requested), properly addressed and postage prepaid, or delivered by telecopy:
If to Acquiror, to:
U S WEST, INC.
0000 Xxxx Xxxxxxx Xxxx
Xxxxxxxxx, Xxxxxxxx 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Attention: General Counsel
with a copy to:
Weil, Gotshal & Xxxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Attention: Xxxxxx X. Block, Esq.
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If to Xxxx X. Xxxxxxxxx, Xx., the Xxxxxxxxx Trust or to Xxxxxxx X.
Xxxxx, to:
c/o Continental Cablevision, Inc.
The Xxxxx Xxxxx
Xxxxx Xxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
with a copy to:
Xxxxxxxx & Worcester LLP
Xxx Xxxx Xxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Attention: Xxxxxxx X. Xxxxx, Esq.
If to Corporate Advisors, the Boston Ventures Stockholders or to the
Other Stockholders, at such address as may be furnished to Acquiror
from time to time.
5.4 Counterparts. This Agreement may be executed in one or more
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counterparts and each counterpart shall be deemed to be an original, but all of
which shall constitute one and the same original.
5.5 Applicable Law. This Agreement shall be governed by, and construed
--------------
in accordance with, the laws of the State of Delaware without reference to
choice of law principles, including all matters of construction, validity and
performance.
5.6 Severability; Enforcement. The invalidity of any portion hereof
-------------------------
shall not affect the validity, force or effect of the remaining portions hereof.
If it is ever held that any restriction hereunder is too broad to permit
enforcement of such restriction to its fullest extent, each party agrees that a
court of competent jurisdiction may enforce such restriction to the maximum
extent permitted by law, and each party hereby consents and agrees that such
scope may be judicially modified accordingly in any proceeding brought to
enforce such restriction. In furtherance of the foregoing, if any court
construes any of the provisions of Section 3.6, or any part thereof, to be
unreasonable because of the duration of such provision or the geographic scope
thereof, such court shall have the power to reduce the duration or restrict the
geographic
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scope of such provision and to enforce such provision as so reduced or
restricted.
5.7 Further Assurances. Each party hereto shall execute and deliver
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such additional documents as may be necessary or desirable to consummate the
transactions contemplated by this Agreement.
5.8 Parties in Interest; Assignment. Neither this Agreement nor any of
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the rights, interest or obligations hereunder shall be assigned by any of the
parties hereto without the prior written consent of the other parties.
5.9 Entire Agreement. This Agreement and the Merger Agreement and the
----------------
Transaction Documents contain the entire understanding of the parties hereto and
thereto with respect to the subject matter contained herein and therein, and
supersede and cancel all prior agreements, negotiations, correspondence,
undertakings and communications of the parties, oral or written, respecting such
subject matter. There are no restrictions, promises, representations,
warranties, agreements or undertakings of any party hereto or to the Merger
Agreement or any of the Transaction Documents with respect to the transactions
contemplated by this Agreement and the Merger Agreement and the Transaction
Documents other than those set forth herein or therein or made hereunder or
thereunder.
5.10 Specific Performance. The parties hereto agree that the remedy at
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law for any breach of this Agreement will be inadequate and that any party by
whom this Agreement is enforceable shall be entitled to specific performance in
addition to any other appropriate relief or remedy. Such party may, in its sole
discretion, apply to a court of competent jurisdiction for specific performance
or injunctive or such other relief as such court may deem just and proper in
order to enforce this Agreement or prevent any violation hereof and, to the
extent permitted by applicable law, each party waives any objection to the
imposition of such relief.
5.11 Headings; References. The section and paragraph headings contained
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in this Agreement are for reference purposes only and shall not affect in any
way the meaning or interpretation of this Agreement. All references herein
to "Sections" or "Exhibits" shall be deemed to be
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