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Exhibit 9.3
STOCKHOLDER AGREEMENT
AGREEMENT dated as of September 29, 2000 among CoreComm
Limited, a Delaware corporation formerly known as ATX Telecommunications
Services, Inc.(the "Company"), and each of the Persons listed on Schedule A
hereto (each, a "Stockholder").
WHEREAS, pursuant to a Recapitalization Agreement and Plan of
Merger, dated as of March 9, 2000, as amended (the "Merger Agreement"), by and
among CoreComm Limited, a Bermuda corporation ("CoreComm"), the Company, the
Stockholders (with respect only to certain provisions thereof), ATX Merger Sub,
Inc. ("ATX Merger Sub") and CoreComm Merger Sub, Inc. ("CoreComm Merger Sub"),
(i) CoreComm has been merged with and into CoreComm Merger Sub (with each issued
and outstanding share of CoreComm's capital stock converted into an equivalent
share of capital stock of CoreComm Merger Sub) (the "Domestication Merger") and
(ii) CoreComm Merger Sub is being merged with and into the Company (the
"Merger");
WHEREAS as a result of the Merger (i) each share of the
Company's common stock, par value $.01 per share (the "Pre-Recapitalization
Common Stock") issued and outstanding immediately prior to the effective time of
the Merger (the "Effective Time") is being converted into 12,398,334 shares the
Company's Common Stock, par value $.01 per share (the "Common Stock"), 250,000
shares of the Company's Series B Senior Convertible Exchangeable Preferred
Stock, par value $.01 per share (the "Series B Preferred Stock"), as well as the
right to receive cash or Senior Notes (as defined in the Merger Agreement) and
(ii) each share of common stock of CoreComm Merger Sub issued and outstanding
immediately prior to the Effective Time, other than treasury shares, is being
converted into one share of the Common Stock, and each share of 8.5% Senior
Convertible Preferred Stock, Series A of CoreComm Merger Sub issued and
outstanding immediately prior to the Effective Time, is being converted into one
share of the 8.5% Senior Convertible Preferred Stock, Series A of the Company;
and
WHEREAS, it is a condition to the obligation of CoreComm
Merger Sub to consummate the Merger, that the Company and each of the holders
immediately prior to the Effective Time of the issued and outstanding shares of
Pre-Recapitalization Common Stock enter into this Agreement; and
WHEREAS, the Stockholders are the holders of all of the shares
of Pre-Recapitalization Common Stock issued and outstanding immediately prior to
the Effective Time; and
WHEREAS, each Stockholder has independently determined that
the Merger is in its best interest and each Stockholder wishes to facilitate the
consummation of the Merger by entering into this Agreement and agreeing to be
bound by the terms hereof;
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NOW, THEREFORE, in consideration of the premises and of the
mutual agreements, provisions and covenants herein contained, each Stockholder
and the Company hereby agree as follows:
SECTION 1. COVENANTS OF STOCKHOLDERS WITH RESPECT TO VOTING
SECURITIES OF THE COMPANY.
During the term of this Agreement and subject to all of the
provisions hereof, each Stockholder and the Company agree as follows:
1.1 Acquisition of Voting Securities. Each Stockholder shall
not acquire, agree to acquire or offer or propose to acquire, directly or
indirectly, or in conjunction with or through any Person, record or beneficial
ownership of any Voting Securities (as hereinafter defined), except (i) through
the exercise of conversion rights, if any, of Voting Securities (including any
conversion of the Series B Preferred Stock); (ii) by way of stock splits,
reclassifications or stock dividends or other distributions or offerings made on
a pro rata basis to holders of Voting Securities or any class of Voting
Securities; (iii) from another Stockholder by bequest (including, without
limitation, through the creation of a trust), gift, will, pledge, hypothecation
or otherwise in accordance with clause (i) of Section 1.6 hereof; (iv) pursuant
to a bequest or similar gift or transfer from a Person who is not a Stockholder,
including, without limitation, through the creation of a trust for the benefit
of a Stockholder; (v) pursuant to a will or the laws of descent and distribution
from a Person who is not a Stockholder; or (vi) pursuant to the grant or
exercise of stock options or the receipt of other compensation or benefits
involving Voting Securities granted to a Stockholder in such Stockholder' s
capacity (if applicable) as an employee or consultant of the Company or any
subsidiary of the Company; provided, however, that if, in connection with the
transfer of Voting Securities to a Stockholder pursuant to clauses (iv) and (v)
of this Section 1.1, a trust, corporation or other entity is formed for the
purpose of holding Voting Securities for the benefit of a Stockholder (other
than solely as an income beneficiary of a trust), then, as a condition precedent
to the receipt by such Stockholder of any direct or indirect beneficial interest
in such Voting Securities, such trust, corporation or other entity shall agree
to be bound by the terms and conditions of a stockholder agreement having the
same or substantially the same terms and conditions as this Agreement.
If a Stockholder shall acquire, directly or indirectly, record
or beneficial ownership of, or the right to acquire, any Voting Securities in
contravention of this Agreement, then such Stockholder shall promptly notify the
Company, and the Company, in its sole discretion, may either (x) purchase (or
cause its designee(s) to purchase) any or all of such acquired Voting Securities
at a price equal to the price paid by such Stockholder or (y) require such
Stockholder to dispose of, within 30 days from the date on which the
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Company requests such Stockholder to do so, only in accordance with the
provisions of Section 1.6 (ii) or (iv), the Voting Securities acquired in
violation of this Section 1.1, provided that any sale may be delayed by the
Stockholders to avoid a violation of Section 16(b) of the Exchange Act or any
other provisions of the Exchange Act or Securities Act, including, without
limitation, any applicable volume limits under Rule 144 of the Securities Act,
or any successor rules or regulations permitting sales of unregistered or
otherwise restricted securities. Each Stockholder hereby acknowledges that any
acquisition of Voting Securities in contravention of this Agreement shall
constitute a breach of this Agreement and that the Company' s right to purchase
or require the disposition of Voting Securities pursuant to this Section 1.1
shall not be exclusive and shall be in addition to any other rights and remedies
the Company may have in connection with a breach of this Agreement.
For the purposes of this Agreement, "Voting Securities" means
all securities of the Company, or any successor to the Company, entitling the
holder thereof to vote as a stockholder for any purpose or under any
circumstance or any securities convertible into or exchangeable for under any
circumstance such securities or any rights, warrants or options to acquire
(through purchase, exchange, conversion or otherwise) any such securities under
any circumstance.
1.2 Voting of Voting Securities. Each Stockholder shall vote
or direct the vote of all Shares of Voting Securities that are (a) acquired
pursuant to the Merger, (b) acquired by a Stockholder pursuant to Section 1.1,
(c) held in trusts, corporations or other entities formed as contemplated by
Section 1.6 or (d) otherwise hereinafter acquired, with respect to which such
Stockholder has the legal capacity to vote or to direct the vote of such Voting
Securities, on each matter submitted to a vote of the stockholders of the
Company, (x) in the same proportion as the votes cast by all holders of Voting
Securities other than the Stockholders and any affiliates and associates of the
Company, with respect to such matter, or, (y) in the event of a proposed change
of control transaction for the Company, in the manner recommended to the
stockholders by the Board of Directors of the Company provided that the Board of
Directors, prior to such recommendation, shall have received an opinion from a
nationally recognized investment banking firm to the effect that the transaction
or the consideration to be received by the unaffiliated holders of the Common
Stock is fair from a financial point
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of view to such stockholders; provided, further, that in the absence of such
opinion such Voting Securities shall be voted as provided in clause (x) of this
Section 1.2.
Each Stockholder shall take such action as may be required so
that all Voting Securities with respect to which such Stockholder has the legal
capacity to vote or to direct the vote of such Voting Securities as provided for
herein shall be present in person or by proxy at all duly noticed and convened
meetings of holders of Voting Securities for the purpose of determining the
presence of a quorum at such meetings.
1.3 No Voting Trusts. No Stockholder shall, directly or
indirectly, deposit any Voting Securities in a voting trust or in any other
manner, except pursuant to this Agreement, subject any Voting Securities to any
arrangement or agreement with respect to the voting thereof.
1.4 No Election Contests. No Stockholder shall, directly or
indirectly, solicit proxies or become a "participant" in a "solicitation" in
opposition to the recommendation of the Company's Board of Directors with
respect to any matter, including, without limitation, any "election contest"
relating to the election of directors of the Company (as such terms are defined
in Regulation 14A under the Exchange Act) or initiate, propose or otherwise
solicit stockholders of the Company for the approval of one or more stockholder
proposals at any time, or induce or attempt to induce any other person to
initiate any stockholder proposal; provided, however, that each Stockholder
shall vote any Voting Securities directly or indirectly beneficially owned by
such Stockholder in any "election contest" in accordance with the provisions of
the first paragraph of Section 1.2 hereof.
1.5 No Syndications. No Stockholder shall, directly or
indirectly, join or encourage the formation of a partnership, limited
partnership, syndicate or other "group," or otherwise act in concert with any
other Person (except as contemplated by Section 1.2 hereof) for the purpose of
affecting or influencing control of the Company or acquiring, holding, disposing
of or Voting Securities.
1.6 Disposition of Voting Securities.
(a) Prior to June 29, 2001 no Stockholder shall directly or
indirectly, offer, sell, assign, pledge, encumber or otherwise dispose of or
transfer in any manner any shares of Common Stock held by such Stockholder (the
shares of Common Stock which may not be offered, sold, assigned, pledged,
encumbered or otherwise disposed of during such period being the "Restricted
Shares"), except that the Restricted Shares may be pledged in respect of a
margin loan or to a bona fide third party lending institution provided that the
pledgee shall be bound by the restrictions contained in this
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sentence; provided however, that if less than 50% of the Senior Notes (as
defined in the Merger Agreement) issued to the Stockholders pursuant to the
Merger Agreement have been repaid within six (6) months of the Closing (as
defined in the Merger Agreement), the restrictions set forth in this Section
1.6(a), with respect to 25% of the Restricted Shares held by such Stockholder
shall terminate on the six month anniversary of the Closing; provided, however,
that disposition of any such shares that are released from such restrictions
shall be subject to the volume limitations set forth in Rule 144(e) under the
Securities Act.
(b) In addition, except as set forth above no Stockholder
shall, directly or indirectly, offer, sell, assign, pledge, encumber or
otherwise dispose of or transfer in any manner any Voting Securities (or enter
into agreements or understandings with respect to the foregoing), if after such
disposition, the Person holding such Voting Securities would own 5% or more of
the Total Voting Power (or Voting Securities which are convertible into or
exercisable for shares which, after giving effect to such exercise or
conversion, would represent 5% or more of the Total Voting Power). Any offer,
sale, assignment, pledge, encumbrance or other disposition or transfer of Voting
Securities not otherwise prohibited by this Agreement shall only be effected, to
the extent otherwise legally permissible, in the following manners: (i) pursuant
to a bona fide public offering of Voting Securities (which may include a
secondary distribution effected through the facilities of any national
securities exchange on which the Voting Securities are listed); provided,
however, that in case of any such proposed public offering, each Stockholder
selling pursuant to such offering (the "Selling Stockholder") will use
his/her/its best efforts (and will instruct the managing underwriter of any such
public offering or broker-dealer to or through which such public offering is
being made to use its best efforts) to achieve a sufficiently broad public
distribution of the securities being offered (in light of the number of
securities being offered), with the intention that no person or related group of
persons should purchase in such public offering Voting Securities representing
5% or more of the Total Voting Power; (ii) pursuant to an unsolicited open
market sale or sales during any three-month period involving, in the aggregate,
Voting Securities representing not more than 1% of the Total Voting Power, as
defined in Section 5.4, (in accordance with the requirements as to the manner of
sale set forth in Rule 144(f) and (g) of the Securities Act or any successor
rules or regulations permitting sales of unregistered or otherwise restricted
securities, if such sale is subject to Rule 144 or such successor rules or
regulations) on any national securities exchange on which the Voting Securities
are listed; (iii) pursuant to a tender offer made by the Company or any
subsidiary of the Company or made by a third person to the stockholders of the
Company as to which the Company's Board of Directors has recommended to the
stockholders of the Company; (iv) pursuant to a privately-negotiated transaction
with a Person who is not a Stockholder; provided, that in no case shall any such
sale, transfer or other disposition under this clause (iv) be made to such
Person if, immediately after such transaction, such Person (based upon the
written representation of such Person, which as a condition precedent to such
sale, transfer or other disposition shall be delivered to such Stockholder and
to the Company prior to the consummation of such transaction), together with its
affiliates and associates would be the direct or indirect beneficial or record
owner of Voting Securities
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(when added to the Voting Securities (if any) already beneficially owned by such
Person and its affiliates and associates) representing in excess of 5% of the
Total Voting Power; (v) pursuant to a will or the laws of descent and
distribution; provided, that the estate of a Stockholder shall be bound by the
terms and conditions of this Agreement and if, immediately after any
distribution out of such estate, any distributee, together with such
distributee's affiliates and associates would (other than solely as an income
beneficiary of a trust) be the direct or indirect beneficial or record owner of,
or have the right to acquire, Voting Securities (when added to the Voting
Securities (if any) already owned by such distributee and his/her affiliates and
associates representing in excess of 5% of the Total Voting Power, then such
distributee shall, as a condition precedent to receiving such shares of Voting
Securities, agree to be bound by the terms and conditions of a stockholder
agreement having the same terms and conditions as this Agreement; (vi) pursuant
to a bequest or similar gift or transfer to any Person who is not a Stockholder
or; provided that if, immediately after delivery of a bequest or similar gift or
transfer, including, but not limited to, through the creation of a trust, the
recipient, together with such recipient's affiliates and associates (including,
as the case may be, the Stockholder making such transfer), would (other than
solely as an income beneficiary of a trust) be the direct or indirect beneficial
or record owner of, or have the right to acquire, Voting Securities (when added
to the Voting Securities (if any) already owned by such recipient and its
affiliates and associates (including, as the case may be, the Stockholder making
such transfer)) representing in excess of 5% of the Total Voting Power, then
such recipient shall, as a condition precedent to receiving such shares of
Voting Securities, agree to be bound by the terms and conditions of a
stockholder agreement having the same terms and conditions as this Agreement; or
(vii) as a result of any pledge or hypothecation to a bona fide financial
institution to secure a bona fide loan, guaranty or other financial
accommodation or as a result of any foreclosure with respect thereto; provided,
however, that in connection with any transfer by a Stockholder of Voting
Securities pursuant to clauses (v) or (vi) of this Section 1.6 to a trust,
corporation or other entity and a Stockholder retains the authority, as trustee
or otherwise, to vote, acquire or dispose of, or to direct the voting,
acquisition or disposition of, Voting Securities to be held by such trust or
other entity, then as a condition precedent to the transfer of such shares of
Voting Securities to such trust or other entity, such Stockholder shall cause
such trust or other entity to be bound by the terms and conditions of a
stockholder agreement having the same or substantially the same terms and
conditions as this Agreement.
Notwithstanding anything to the contrary contained herein, a
Stockholder shall not dispose of or otherwise transfer any Voting Securities in
violation of the provisions of Section 5 of the Securities Act.
1.7 No Solicitation. No Stockholder shall propose, solicit or
participate in any fashion, in any transaction relating to an acquisition of, a
business combination or similar transaction with, or a change of control of, the
Company or make or solicit or encourage any Person to make a tender offer for
Voting Securities.
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1.8 Legend on Voting Securities. Each Stockholder agrees that
each certificate representing its Voting Securities shall bear the following
legend, which will remain thereon as long as such Voting Securities are subject
to the restrictions contained in this Agreement:
The shares represented by this certificate are subject to the
provisions of a Stockholder Agreement dated as of September [28], 2000,
among the Company and certain Stockholders, and may not be sold or
transferred except in accordance therewith. Copies of said Agreement
are on file at the offices of the Secretary of the Company.
The Company may enter a stop transfer order with the transfer agent (or agents)
and the registrar (or registrars) of the Voting Securities against the transfer
of legended Voting Securities held by a Stockholder except in compliance with
the requirements of this Agreement. The Company agrees to remove promptly any
stop transfer order with respect to, and issue promptly either legended (if the
Voting Securities remain subject to the restrictions of this Agreement) or
unlegended certificates in substitution for, certificates for any such Voting
Securities that are no longer subject to or are to be transferred in compliance
with the restrictions contained in this Agreement. Without limiting the
generality of the foregoing, the Company shall promptly remove any stop transfer
order in effect with respect to such certificates, upon the delivery to the
Company of an opinion of counsel to a Stockholder, in form and substance
reasonably satisfactory to the Company, that legended certificates representing
Voting Securities are no longer subject to this Agreement or that such Voting
Securities are being transferred in compliance with the provisions of Sections
1.6, and shall promptly issue unlegended certificates in substitution for such
legended certificates, except if such legended certificates are being
transferred pursuant to Section 1.6 to a transferee who shall be bound by the
terms and conditions of a Stockholder Agreement, in which event the Company may
issue legended certificates.
SECTION 2. REPRESENTATIONS AND WARRANTIES.
2.1 Representations and Warranties of the Stockholders. Each
Stockholder represents and warrants to the Company as follows:
(i) At the Effective Time, such Stockholder will
be the record and beneficial owner of the Shares of Common Stock and Series B
Preferred Stock set forth beside its name on Schedule A hereto (such
Stockholder's Shares") and will be the lawful owner of " such Shares, free and
clear of all liens, charges, encumbrances, voting agreements and commitments of
every kind, other than this Agreement. Such Stockholder has full legal power,
authority and right to vote all of such Stockholder's Shares in the manner
required by this Agreement without the consent or approval of, or any other
action on the part of, any other person or entity.
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(ii) The execution, delivery and performance by
such Stockholder of this Agreement has been approved by all necessary action
on the part of such Stockholder.
(iii) This Agreement has been duly executed and
delivered by such Stockholder and constitutes the valid and binding agreement of
such Stockholder, enforceable against the Stockholder in accordance with its
terms.
(iv) The execution, delivery and performance of
this Agreement by such Stockholder does not violate or breach, and will not give
rise to any violation or breach of, any law, contract, instrument, arrangement
or agreement by which such Stockholder is, or any of such Stockholder' s Shares
are, bound.
(v) The execution, delivery and performance of
this Agreement by such Stockholder does not create or give rise to any right in
any other Person or entity (other than the Company) with respect to such
Stockholder' s Shares or any other Voting Securities.
2.2 Representations and Warranties of the Company. The Company
represents and warrants to each Stockholder as follows:
(i) The execution, delivery and performance by
the Company of this Agreement has been approved by all necessary corporate
action on the part of the Company.
(ii) This Agreement has been duly executed and
delivered by a duly authorized officer of the Company and constitutes a valid
and binding agreement of the Company, enforceable against The Company in
accordance with its terms.
(iii) The execution and delivery of this Agreement
by the Company does not violate or breach, and will not give rise to any
violation or breach of, the charter or bylaws of the Company, or, except as will
not materially impair its ability to effectuate, carry out or comply with all of
the terms of this Agreement, any law, contract, instrument, arrangement or
agreement by which the Company is bound.
2.3 No Indirect Conduct. No Stockholder shall engage in any
conduct or take any action through any agent or any entity acting in concert
with such Stockholder that the Stockholder has hereby agreed not to engage in or
take.
SECTION 3. COVENANTS OF THE COMPANY.
3.1 Registration Rights. During the term and subject to all of
the provisions hereof (including, without limitation Section 1.6(vi)), the
Company agrees to provide registration rights to each Stockholder on the terms
and subject to the provisions set forth in Registration Rights Agreement
attached as Appendix I hereto.
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3.2 Access to Management. The Company agrees that so long as a
Stockholder continues to hold 5% or more (or in the case of Xxxxx Xxxxxxxxx and
Xxxxxx Xxxxxxx, 2% or more) of any class of Voting Securities, the Company shall
provide such Stockholder with an opportunity on a regularly scheduled basis to
review with senior management of the Company, significant issues facing the
Company; provided, however, that such Stockholder shall agree (i) to maintain
the confidentiality of any non-public information disclosed to such Stockholder
in any such session, and (ii) if necessary, refrain from engaging in any
transaction involving (x) the Company' s securities while in possession of any
material non-public information about the Company disclosed to such Stockholder
by the Company in the course of the Company' s complying with the provisions of
this Section 3.2 or (y) or any other securities to which such material
non-public information relates.
SECTION 4. TERM OF AGREEMENT.
The term of this Agreement shall commence at the Effective
Time and shall terminate with respect to any given Stockholder (but only such
Stockholder) (x) in the case of Xxxxxxx Xxxx and The Xxxxxxxx Xxxx Trust, when
such Stockholders (together with any transferees who are members of such
Stockholder' s immediate family or entities described in clause (v) of Section
1.6 hereof) ceased to own Voting Securities having, in the aggregate, 5% or more
of the Total Voting Power, and (y) in the case of each of Xxxxx Xxxxxxxxx and
Xxxxxx Xxxxxxx, when such Stockholder (together with any transferees who are
members of such Stockholder' s immediate family or entities described in clause
(v) of Section 1.6 hereof) ceases to own less than 50% of the Voting Securities
issued to such party pursuant to the Recapitalization (after giving effect to
any stock splits or stock dividends), unless the transaction or transactions
which resulted in such Stockholder ceasing to hold such threshold number or
percentage of Voting Securities shall have violated the terms of this Agreement.
For purposes hereof, ownership of Voting Securities shall include record
ownership of such securities as well as beneficial ownership thereof within the
meaning of Rule 13d-3 under the Securities Exchange Act of 1934, as amended.
SECTION 5. MISCELLANEOUS.
5.1 Specific Performance. The Company and each Stockholder
acknowledge and agree that irreparable damage would occur in the event any of
the provisions of this Agreement were not performed in accordance with their
specific terms or were otherwise breached. It is accordingly agreed that the
Company or a Stockholder, as the case may be, shall be entitled to an injunction
or injunctions to prevent breaches of the provisions of this Agreement and to
enforce specifically, the terms and provisions hereof in any court of the United
States or any state thereof having jurisdiction, in addition to any other remedy
to which it may be entitled at law or equity.
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5.2 The Term "Company." The term "Company" shall be deemed to
include any successor to the Company by way of merger, consolidation, sale of
assets or otherwise, except as the context otherwise requires, it being the
intention hereof that this Agreement shall continue to be binding on each
Stockholder notwithstanding such merger, consolidation, sale of assets or other
succession, unless the provisions of Section 4.2 of this Agreement shall
otherwise provide.
5.3 The Terms "Affiliate," Associate," "Beneficial Owner"
"Entity," and "Person." As used herein, the term "affiliate" shall have the
meaning set forth in Rule 12b-2 under the Exchange Act; the term "beneficial
owner" (which shall include "beneficially owned" or other similar phrasing as
used herein) shall have the meaning set forth in Section 13(d)(3) of the
Securities Act; the term "associate" shall mean (1) a corporation or
organization (other than the Company or a subsidiary of the Company) of which
such Person (as defined herein) is an officer or partner or is, directly or
indirectly, the beneficial owner of 10 percent or more of any class of equity
securities, (2) any trust or other estate in which such Person has a substantial
beneficial interest or as to which such Person serves as trustee or in a similar
capacity, and (3) any relative or spouse of such Person, or any relative of such
spouse, who has the same home as such Person; and the term "Person" shall mean
any individual, partnership, corporation, joint venture, association,
unincorporated organization, trust, government or agency thereof, or any other
entity.
5.4 The Term "Total Voting Power." The term "Total Voting
Power," as used in this Agreement, shall mean the aggregate voting power of all
Voting Securities outstanding at the time of any determination which at such
time have ordinary voting power to vote in the election of directors of the
Company. In determining Total Voting Power for purposes of this Agreement, the
Stockholder may conclusively rely on the most recent reports filed by the
Company with the SEC in which the number of Voting Securities outstanding is set
forth or from which Total Voting Power can reasonably be derived, it being
understood that each Stockholder shall not be considered to be in breach of this
Agreement if he/she has acted in good faith on the basis of a determination of
Total Voting Power as contemplated herein.
5.5 Notices. All notices, requests and other communications to
any person named hereunder shall be in writing (including wire, telex or similar
writing) and shall be given to such person at its address set forth below or
such address or telex number as such person may hereafter specify for the
purpose by notice to the other person:
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If to the Company:
CoreComm Limited
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Attention: General Counsel
Facsimile: 000-000-0000
Copy to:
Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxxxxxx, Esq.
Facsimile: 212-757-3990
If to any Stockholder, to the most current address of such
Stockholder provided by such Stockholder to the Company in
writing.
Copy to:
Klehr, Harrison, Xxxxxx, Xxxxxxxxx & Xxxxxx LLP
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxx, Esq.
Telecopier No.: (000) 000-0000
Each such notice, request or other communication shall be effective (a) if given
by facsimile, when such facsimile is transmitted to the facsimile number
specified in this subsection and the appropriate answer back is received or (b)
if given by any other means, when actually received at the address specified in
this subsection, provided that a notice given other than during normal business
hours on a business day at the place of receipt shall not be effective until the
opening of business on the next business day.
5.6 Governing Law and Jurisdiction. THIS AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF DELAWARE
APPLICABLE TO AGREEMENTS MADE AND PERFORMED ENTIRELY WITHIN SUCH STATE. THE
UNDERSIGNED HEREBY SUBMITS TO THE JURISDICTION OF ANY STATE OR FEDERAL COURTS
LOCATED WITHIN THE STATE OF DELAWARE, COUNTY OF NEW CASTLE, AND WAIVES ANY RIGHT
TO A TRIAL BY JURY IN CONNECTION WITH ANY ACTION OR PROCEEDING RELATING HERETO.
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5.7 Amendments. This Agreement may be amended, modified or
supplemented only by written agreement of each Stockholder and the Company.
5.8 Waiver. Any failure of any party to comply with any
obligation, covenant, agreement or condition herein may be waived by the party
entitled to the benefit of such obligation, covenant, agreement or condition
only by a written instrument signed by such party, but such waiver or failure to
insist upon strict compliance with such obligation, covenant, agreement or
condition shall not operate as a waiver of, or estoppel with respect to, any
subsequent or other non-compliance. Wherever this Agreement requires or permits
consent by or on behalf of any party hereto, such consent shall be given in
writing in a manner consistent with the requirements for a waiver of compliance
as set forth in this Section 5.8.
5.9 Successors and Assigns. This Agreement and all of the
provisions hereof shall be binding upon and inure to the benefit of the parties
hereto and their respective successors and permitted assigns, including, without
limitation, (i) any person who acquires any interest, beneficial or otherwise,
in Voting Securities by will or pursuant to the laws of descent and distribution
and (ii) any successor trust.
5.10 Counterparts. This Agreement may be executed in two or
more counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
5.11 Entire Agreement. This Agreement, including the
appendices referred to herein, embodies the entire agreement and understanding
of the parties hereto in respect of the subject matter contained herein. There
are no restrictions, promises, representations, warranties, covenants or
undertakings, other than those expressly set forth or referred to herein. This
Agreement supersedes all prior agreements and understandings between the parties
with respect to such subject matter.
5.12 Severability. If any provision of this Agreement shall be
deemed or declared to be unenforceable, invalid or void, the same shall not
impair any of the other provisions of this Agreement.
5.13 Other Rights and Privileges. Except as otherwise
specifically set forth in this Agreement, each Stockholder shall have and enjoy
all rights and privileges otherwise permitted stockholders of the Company under
applicable law.
IN WITNESS WHEREOF, each Stockholder and the Company have duly
executed this Agreement as of day and year first above written.
CORECOMM LIMITED
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By: /s/ Xxxxxxx X. Xxxxxxx
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Name: Xxxxxxx X. Xxxxxxx
Title: Senior Vice President -- Secretary
STOCKHOLDERS:
/s/ Xxxxxxx Xxxx
------------------------------
Xxxxxxx Xxxx
/s/ Xxxxx Xxxxxxxxx
------------------------------
Xxxxx Xxxxxxxxx
/s/ Xxxxxx Xxxxxxx
------------------------------
Xxxxxx Xxxxxxx
THE XXXXXXXX XXXX TRUST
By: /s/ Xxxx X. Xxxxxxxx
---------------------------
Name: Xxxx X. Xxxxxxxx
Title: Trustee
13
