XXXXXX COMMUNICATIONS CORPORATION
STOCKHOLDER AND
INVESTOR RIGHTS AGREEMENT
dated as of ______________, 2000
STOCKHOLDER AND INVESTOR RIGHTS AGREEMENT
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STOCKHOLDER AND INVESTOR RIGHTS AGREEMENT, dated as of January __,
2000 (this "Agreement"), by and among the Persons listed on Schedule I and
Xxxxxx Communications Corporation, an Oklahoma corporation (the "Company").
Each of the foregoing Persons (other than the Company), together with all
other Persons who, in connection with a Transfer (as hereinafter defined) are
required to become a party to this Agreement are sometimes referred to
herein, individually, as a "Stockholder" and, collectively, as the
"Stockholders."
RECITALS
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WHEREAS:
(A) The Company and the Stockholders are parties to that certain
Amended and Restated Stockholder and Investor Rights Agreement dated as of
September 17, 1999 (the "Existing Agreement"); and
(B) The Company is planning an initial public offering of shares of
its capital stock; and
(C) The parties hereto have agreed to enter into this Stockholder
and Investor Rights Agreement in order to provide for certain matters
relating to the Company and its Common Stock effective as of the IPO Date; and
(D) The authorized capital stock of the Company consists of: (a)
245,037,226 shares of common stock, par value $0.01 per share ("Common
Stock"), consisting of (i) 175 million shares of Class A Common Stock (the
"Class A Common Stock"), (ii) 70 million shares of Class B Common Stock (the
"Class B Common Stock"); (iii) 4,226 shares of Class C Common Stock (the
"Class C Common Stock") and (iv) 33,000 shares of Class D Common Stock (the
"Class D Common Stock"); and (b) 6,000,000 shares of preferred stock (the
"Preferred Stock"), consisting of (i) 734,000 shares designated 12 1/4%
Senior Exchangeable Preferred Stock, Mandatorily Redeemable 2008 (the "Senior
PIK Preferred"), (ii) 500,000 shares designated 13 1/4% Senior Exchangeable
Preferred Stock Mandatory Redeemable 2009 (the "Exchangeable PIK Preferred
Stock"), (iii) 40,000 shares have been designated as Class E Preferred Stock
(the "Class E Preferred Stock"), and (iv) 4,726,000 shares as undesignated
preferred stock; and
(E) Each Stockholder is the registered owner of the respective
shares of Common Stock set forth opposite its name on Schedule II.
NOW, THEREFORE, in consideration of the premises and the mutual
representations, warranties, covenants, conditions and agreements hereinafter
set forth, the parties agree, and the Existing Agreement is amended and
restated in its entirety, as follows:
ARTICLE 1.
1.1 CERTAIN DEFINED TERMS. As used herein, the following terms
have the following meanings (unless indicated otherwise, all Section and
Article references are to Sections and Articles in this Agreement, and all
Schedule and Exhibit references are to Schedules and Exhibits to this
Agreement):
"AAA RULES" shall have the meaning set forth in Section 10.9.
"ADVICE" shall have the meaning set forth in Section 4(xvi).
"AFFILIATE" shall have the meaning given such term in Rule 501(b)
under the Securities Act, provided, that, Logix Communications will not be
deemed to be part of the Company or an Affiliate of the Company for purposes
of this Agreement, and neither ACC Acquisition LLC, a Delaware limited
liability company, nor any Subsidiary thereof will be deemed to be an
Affiliate of the Company for purposes of this Agreement.
"AFFILIATED SUCCESSOR" shall mean, with respect to any Person, an
Affiliate thereof that is a transferee or a successor in interest to any or
all of such Person's Company Stock and that is required to become a party to
this Agreement in accordance with the terms hereof; PROVIDED, HOWEVER, that,
for purposes of Article 3, with respect to any Stockholder, "Affiliated
Successor" shall also include partners, shareholders or members of such
Stockholder that are transferees of Common Stock pursuant to distributions in
accordance with the partnership agreement, shareholders agreement or
operating agreement of such Stockholder.
"ARBITRATION NOTICE" shall have the meaning set forth in Section 10.9
"AWS" shall mean AT&T Wireless Services, Inc., a Delaware corporation.
"BENEFICIALLY OWN" shall have the meaning set forth in Rule 13d-3 of
the Exchange Act (and correlative terms such as "Beneficial Ownership" shall
have correlative meanings).
"BOARD OF DIRECTORS" shall mean the Board of Directors of the Company,
as duly constituted in accordance with this Agreement.
"BTA" shall mean a geographic area established by the Rand XxXxxxx
1992 Commercial Atlas & Marketing Guide, 123rd Edition, as modified by the
FCC to form the initial geographic area of license for the C, D, E and F
blocks of broadband PCS spectrum as defined in Section 24.202 of the FCC's
rules.
"CELLULAR SYSTEM" shall mean a mobile communication system
constructed and operated in an MSA or a RSA (or any successor territorial
designations or subdivision thereof authorized by the FCC) exclusively using
frequencies in the 800 MHz band, or portions thereof, pursuant to a License
therefor issued by the FCC.
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"CELLULAR TERRITORY" shall mean the cellular geographic service area
in an MSA or RSA in which the Company or its Subsidiaries has been granted a
license to operate a Cellular System by the FCC.
"CHANGE OF LAW" shall mean a change in a Law applicable to the
Company, AWS and/or any of their respective Affiliates or their respective
businesses, properties or assets which is adopted or occurs after September 17,
1999.
"CLASS A COMMON STOCK" shall have the meaning given such term in
recital (D) hereto.
"CLASS B COMMON STOCK" shall have the meaning given such term in
recital (D) hereto.
"CLASS C COMMON STOCK" shall have the meaning given to such term in
recital (D) hereto.
"CLASS D COMMON STOCK" shall have the meaning given to such term in
recital (D) hereto.
"CLASS D PREFERRED STOCK" shall have the meaning given to such term in
recital (D) hereto.
"CLASS E PREFERRED STOCK" shall have the meaning given to such term in
recital (D) hereto.
"CLOSING PRICE" shall mean, with respect to each share of any class or
series of capital stock for any day, (i) the last reported sale price regular
way or, in case no such sale takes place on such day, the average of the
closing bid and asked prices regular way, in either case as reported on the
principal national securities exchange on which such class or series of
capital stock is listed or admitted for trading or (ii) if such class or
series of capital stock is not listed or admitted for trading on any national
securities exchange, the last reported sale price or, in case no such sale
takes place on such day, the average of the highest reported bid and the
lowest reported asked quotation for such class or series of capital stock, in
either case as reported on NASDAQ or a similar service if NASDAQ is no longer
reporting such information.
"COMMISSION" shall mean the Securities and Exchange Commission or any
other federal agency at the time administering the Securities Act.
"COMMON STOCK" shall collectively mean the Class A Common Stock, the
Class B Common Stock, the Class C Common Stock and the Class D Common Stock.
"COMPANY" shall have the meaning set forth in the preamble.
"COMPANY STOCK" shall mean the Preferred Stock and the Common Stock.
"CONFIDENTIAL INFORMATION" shall have the meaning set forth in Section
5.1.
"CONTROL" (including the terms "controlling," "controlled by" and
"under common control with") shall mean the possession, direct or indirect,
of the power to direct or cause the direction
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of the management and policies of a Person, whether through the ownership of
Voting Securities, by contract, or otherwise.
"CREDIT AGREEMENTS" shall mean (i) the Amended, Restated and
Consolidated Revolving Credit and Term Loan Agreement, dated as of January
18, 2000, among Xxxxxx Operating Co., LLC as Borrower, and Bank of America,
N.A, as Administrative Agent, and others as Lenders, as modified, amended or
restated from time to time and (ii) the Credit Agreement, dated December 23,
1998, between Sygnet Wireless, Inc., (as successor by merger to Xxxxxx/Sygnet
Operating Company), as Borrower and Bank of America, N.A., as successor by
merger to NationsBank N.A., as Administrative Agent.
"CREDIT DOCUMENTS" shall mean, collectively, the Credit Agreements and
all documents and instruments evidencing or securing or guarantying
indebtedness thereunder.
"DISPUTE" shall have the meaning set forth in Section 10.9.
"XXXXXX PARTNERSHIP" shall mean Xxxxxx XX Limited Partnership, an
Oklahoma limited partnership.
"EQUITY SECURITIES" shall mean, with respect to any Person, any shares
of stock of, or partnership interest or other ownership or beneficial
interest in, such Person, in each case outstanding at any time.
"EXCHANGE ACT" shall mean the Securities Exchange Act of 1934, as
amended.
"EXCHANGEABLE PIK PREFERRED STOCK" shall have the meaning given such
term in recital (D) hereto.
"FCC" shall mean the Federal Communications Commission or similar
regulatory authority established in replacement thereof.
"FCC CONFLICT" shall mean the existence or occurrence of any of the
following: (a) the FCC Order being withdrawn, reversed, superseded or
otherwise ceasing to be in full force and effect, including without
limitation as a result of a Change of Law or an application of existing law,
(b) the commencement of the 90 day cure period (as such period may be
modified) set forth in the FCC Order, (c) either AWS or the Company or any of
their respective Affiliates own an attributable interest in both Cellular
Systems or PCS Systems authorized to serve a Cellular Territory or PCS
Territory which violates any FCC rule or regulation prohibiting such
overlapping interests; or (d) either AWS, the Company or any of their
respective Affiliates holds an attributable interest in more licensed
broadband PCS, cellular, and SMR spectrum regulated as CMRS than is permitted
under any FCC spectrum cap regulation prohibiting such interest; or (e)
either AWS or the Company or any of their respective Affiliates holds any
other attributable interest or interests which violates any rule or
regulation of the FCC, for example, prohibitions
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on the ownership of certain interests in the telephone company and cable
television company serving the same market.
"FCC ORDER" shall mean the waiver of 47 CFR Section 22.942 granted to
the Company and AWS by the Chief of the Commercial Wireless Division,
Wireless Telecommunications Bureau, DA 99-1475 (released July 29, 1999).
"GAAP" shall mean U.S. generally accepted accounting principles,
consistently applied.
"GOVERNMENTAL AUTHORITY" shall mean a Federal, state or local court,
legislature, governmental agency (including, without limitation, the United
States Department of Justice), commission or regulatory or administrative
authority or instrumentality.
"INDEMNIFIED PARTY" shall have the meaning set forth in Section
4(e)(v).
"INDEMNIFIED STOCKHOLDER" shall have the meaning set forth in Section
4(e)(i).
"INDEMNIFYING PARTY" shall have the meaning set forth in Section
4(e)(v).
"IPO" shall mean the initial public offering of Class A Common Stock
pursuant to a Registration Statement Number 333-23769 under the Securities
Act.
"IPO DATE" shall mean February __, 2000.
"JWC" AND "JWC GROUP STOCKHOLDERS" each mean X.X. Childs Equity
Partners II, L.P., a Delaware limited partnership, and its affiliated funds
and co-investors listed on Schedule I hereto.
"LAW" shall mean applicable common law and any statute, ordinance,
code or other law, rule, permit, permit condition, regulation, order, decree,
technical or other standard, requirement or procedure enacted, adopted,
promulgated, applied or followed by any Governmental Authority.
"LICENSE" shall mean a license, permit, certificate of authority,
waiver, approval, certificate of public convenience and necessity,
registration or other authorization, consent or clearance to construct or
operate a facility, including any emissions, discharges or releases
therefrom, or to transact an activity or business, to construct a tower or to
use an asset or process, in each case issued or granted by a Governmental
Authority.
"LIEN" shall mean, with respect to any asset, any mortgage, lien,
pledge, charge, security interest, right of first refusal or right of others
therein or encumbrance of any nature whatsoever in respect of such asset.
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"LOGIX COMMUNICATIONS" shall mean Logix Communications Enterprises,
Inc., an Oklahoma corporation.
"MAJOR TELECOM COMPETITOR" shall mean any Person or group (as such
term is used in Sections 13(d) and 14(d) of the Exchange Act and the
regulations thereunder) or Affiliate thereof (other than AWS and its
Affiliates) that (a) is one of the five largest providers of wireless
telecommunications services (based on revenue derived from the provision of
such wireless telecommunications services during the most recent fiscal year
preceding the applicable Transfer for which such information is available) in
the United States or a company whose annual gross revenues from wireless
telecommunications services (during the most recent fiscal year for which
such information is available) exceeds $2 billion or (b) provides wireless
communications services in areas in the United States covering more than five
million Pops.
"MINIMUM EQUITY OWNERSHIP" shall mean (a) with respect to JWC, the
Beneficial Ownership by JWC of at least 3,800,000 of the shares of Common
Stock (together with any shares of Common Stock issuable upon conversion
thereof, and any shares of Company Stock or other securities into which such
shares are subdivided, combined or otherwise converted or exchanged by the
Company) held by JWC on the day following the IPO Date and (b) with respect
to AWS, the Beneficial Ownership by AWS and its Affiliates of at least
3,800,000 of the shares of Common Stock (together with any shares of Common
Stock issuable upon conversion thereof, and any shares of Company Stock or
other securities into which such shares are subdivided, combined or otherwise
converted or exchanged by the Company) held by AWS on the day following the
IPO Date. The number of shares constituting the Minimum Equity Ownership
shall, in the event of any redemption or other acquisition of shares by the
Company, be reduced by the number of shares Beneficially Owned by JWC and/or
AWS that are redeemed or otherwise acquired.
"MSA" shall mean a Metropolitan Statistical Area, comprised of one or
more counties in the Unites States, as listed in Public Notice Report No.
CL-92-40, "Common Carrier Public Mobile Services Information, Cellular
MSA/RSA Markets and Counties," dated January 24, 1992. DA 92-109.
"MTA" shall mean a geographic area established by the Rand XxXxxxx
1992 Commercial Atlas & Marketing Guide, 123rd Edition, as modified by the
FCC to form the initial geographic area of license for the A and B blocks of
broadband PCS spectrum as defined in Section 24.202 of the FCC's rules.
"NASD" shall mean the National Association of Securities Dealers, Inc.
"NASDAQ" shall mean the National Association of Securities Dealers'
Automated Quotation System.
"PCS SYSTEM" shall mean a mobile communication system constructed and
operated in a BTA or a MTA (or any successor territorial designations or
subdivision thereof authorized by the
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FCC) exclusively using the 1850 MHZ to 1910 MHZ and 1930 MHZ to 1990 MHZ
frequencies, or portions thereof, pursuant to a License therefor issued by
the FCC.
"PCS TERRITORY" shall mean an MTA or BTA in which the Company or any
of its Subsidiaries has been granted a license to operate a PCS System by the
FCC.
"PERSON" shall mean an individual, corporation, partnership, limited
liability company, association, joint stock company, Governmental Authority,
business trust or other legal entity.
"POPS" shall mean, with respect to any distinct geographic area, the
residents of such area based on the most recent publication by Equifax
Marketing Decision Systems, Inc.
"PREFERRED STOCK" shall mean the Senior PIK Preferred Stock and the
Exchangeable PIK Preferred Stock.
"PROSPECTUS" shall have the meaning set forth in Section 4(d)(ii).
"REGISTRABLE SECURITIES" shall mean (a) the Common Stock now owned or
hereafter acquired by any Stockholder or issuable upon conversion of any
Equity Security or exchange of Common Stock, and (b) all Common Stock issued
or issuable to any Stockholder upon conversion, exchange or exercise of any
Equity Security which is issued pursuant to a stock split, stock dividend or
other similar distribution or event with respect to Common Stock but with
respect to any Common Stock, only until such time as such Common Stock (i)
has been effectively registered under the Securities Act and disposed of in
accordance with the Registration Statement covering it, (ii) has been sold to
the public pursuant to Rule 144 (or any similar provision then in force),
(iii) shall otherwise have been transferred, a new certificate evidencing
such Common Stock without a legend restricting further transfer shall have
been delivered by the Company, and subsequent public distribution of such
Common Stock shall neither require registration under the Securities Act nor
qualification (or any similar filing) under any state securities or "blue
sky" law then in effect, or (iv) shall have ceased to be issued and
outstanding.
"REGISTRATION" shall have the meaning set forth in Section 4(d).
"REGISTRATION EXPENSES" shall have the meaning set forth in Section
4(g).
"REGISTRATION STATEMENT" shall have the meaning set forth in Section
4(d)(i).
"REPRESENTATIVES" shall have the meaning set forth in Section 5.1(a).
"RESTATED BYLAWS" shall mean the Bylaws of the Company adopted as of
the IPO Date.
"RESTATED CERTIFICATE" shall mean the Amended and Restated Certificate
of Incorporation of the Company filed with the Oklahoma Secretary of State on
the IPO Date.
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"RSA" shall mean a Rural Statistical Area, comprised of one or more
counties in the United States, as listed in Public Notice Report No.
CL-92-40, "Common Carrier Public Mobile Services Information, Cellular
MSA/RSA Markets and Counties," dated January 24, 1992, DA 92-109.
"RULE 144" shall mean Rule 144 promulgated under the Securities Act
(or any similar rule as may be in effect from time to time).
"SECURITIES ACT" shall mean the Securities Act of 1933, as amended.
"SENIOR PIK PREFERRED STOCK" shall have the meaning given to such term
in recital (D) hereto.
"STOCKHOLDERS" shall have the meaning set forth in the preamble.
"SUBSIDIARY" shall mean, with respect to any Person, any corporation,
partnership, association or other business entity of which (i) if a
corporation, a majority of the total voting power of shares of stock
entitled (without regard to the occurrence of any contingency) to vote in the
election of directors, managers or trustees thereof is at the time owned or
controlled, directly or indirectly, by that Person or one or more of the
other Subsidiaries of that Person or a combination thereof, or (ii) if a
partnership, association or other business entity, a majority of the
partnership or other similar ownership interest thereof is at the time owned
or controlled, directly or indirectly, by any Person or one or more
Subsidiaries of that Person or a combination thereof. For purposes hereof, a
Person or Persons shall be deemed to have a majority ownership interest in a
partnership, association, or other business entity if such Person or Persons
shall be allocated a majority of partnership, association or other business
entity gains or losses or shall be or control the managing general partner of
such partnership, association or other business entity.
"SUBSTANTIAL BENEFICIAL OWNERSHIP" shall mean, in respect of any
corporation, partnership or other business entity, possession of the power
and authority to vote or direct the voting of a majority of the voting power
of each class of Voting Securities, and to dispose or direct the disposition
of a majority of each class of equity ownership interest, in such
corporation, partnership or other business entity.
"TAXES" shall mean with respect to any Person a net income, gross
income, gross receipts, sales, use, ad valorem, franchise, profits, license,
withholding, payroll, employment, excise, severance, stamp, transfer,
occupation, premium, property or windfall profit tax, custom duty or other
tax, governmental fee or other like assessment or charge of any kind
whatsoever, together with any interest and any penalty, addition to tax or
additional amount imposed by any jurisdiction or other taxing authority
(domestic or foreign) on such Person.
"TERRITORY" shall mean, collectively, all of the PCS Territories and
all of the Cellular Territories.
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"TRANSFER" shall have the meaning set forth in the Restated
Certificate.
"VOTING SECURITIES" shall mean Equity Securities (or other voting
interests) in a Person having the right to vote generally in the election of
the directors (or persons performing equivalent functions) of such Person.
1.2 OTHER DEFINITIONAL PROVISIONS. Each definition or pronoun
herein shall be deemed to refer to the singular, plural, masculine, feminine
or neuter as the context requires. Words such as "herein," "hereinafter,"
"hereof," "hereto" and "hereunder" refer to this Agreement as a whole, unless
the context otherwise requires. References to a document or agreement shall
be to such document or agreement, as the same may be amended, supplemented or
otherwise modified from time to time.
ARTICLE 2.
MANAGEMENT OF THE COMPANY
2.1 BOARD OF DIRECTORS.
(a) The Board of Directors shall, subject to the other provisions
hereof, consist of seven (7) directors; provided, however, that the number of
directors constituting the Board of Directors shall be reduced in the
circumstances set forth in this Section 2.1. Each of the Stockholders hereby
agrees that it will vote all of the shares of its Common Stock owned or held
of record by it (whether now owned or hereafter acquired), in person or by
proxy, for the election of directors and thereafter the continuation in
office of such directors as follows:
(i) one director selected by JWC, in its sole discretion,
until it no longer holds its Minimum Equity Ownership;
(ii) one director selected by AWS, in its sole discretion,
until it no longer holds its Minimum Equity Ownership;
(iii) four directors selected by the Xxxxxx Partnership, in
its sole discretion; and
(iv) one director jointly selected by JWC, AWS (in the event
its designee is a member of the current Board of Directors) and the Xxxxxx
Partnership, subject to Section 2.1(b). Subject to the other provisions of
this Section 2.1(a), AWS may exercise its right to designate a director at
any time and from time to time. In the event that AWS fails to exercise, or
shall have relinquished, and shall continue to relinquish, its right to
designate a director under Section 2.1(a)(ii) in accordance with Section
2.1(b), then the director jointly selected by JWC and the Xxxxxx Partnership
pursuant to this clause (iv) must be reasonably acceptable to AWS, whose
consent shall not be unreasonably withheld.
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Each of JWC and AWS (in the event its designee is a member of the
current Board of Directors) shall have the right, so long as they hold their
respective Minimum Equity Ownership to, designate one director for the Board of
Directors of each Subsidiary of the Company.
If, for any reason, any director to be designated pursuant to
clause (iv) hereof is not designated within 90 days of the time when such
designation right arises, then such director will be selected by the Xxxxxx
Partnership.
If JWC and/or AWS no longer holds its Minimum Equity Ownership,
the vacancy or vacancies thereby created shall not be filled and the number of
Directors constituting the Board of Directors shall be permanently reduced
appropriately. In addition, if JWC and/or AWS no longer holds its Minimum
Equity Ownership, all of its other rights under this Article 2 including its
rights to designate an observer and attend Board Committee meetings shall
terminate.
Any nomination or designation of directors and the acceptance
thereof pursuant to Section 2.1 shall be evidenced in writing.
(b) If, for any reason, AWS's director selected pursuant to
Section 2.1(a)(ii) above resigns or AWS determines that it no longer desires to
have director designation rights, including as a result of an FCC Conflict and
the related provisions herein, then AWS may, at its option, relinquish such
director designation rights, in which case, an additional director will be
designated pursuant to Section 2.1(a)(iv) and AWS will be entitled to observer
rights as provided in Section 2.1(c), PROVIDED, that if AWS subsequently
determines to reinstate such director designation rights, it may do so by
notifying the parties hereto, in which case, such observer rights will
terminate, AWS's director designation rights in Section 2.1(a)(ii) will be
reinstated, and the additional director designated pursuant to this Section
2.1(b) and Section 2.1(a)(iv) will concurrently resign or be removed.
The Stockholders acknowledge the rights of the holders of Senior
PIK Preferred Stock to designate an additional two (2) directors and the right
of the holders of Exchangeable PIK Preferred Stock to designate an additional
two (2) directors, in the event that the triggering events described in
paragraph (iii) of the Senior PIK Preferred Stock Certificate of Designation and
paragraph (iii) of the Exchangeable PIK Preferred Stock Certificate of
Designation, respectively occur.
(c) If AWS fails to exercise or relinquishes its director designation
rights pursuant to Section 2.1(b), then AWS will be entitled to designate an
observer in addition to its observer appointed under Section 2.4, who will be
entitled to attend all meetings of the Board of Directors and receive the same
notice and information provided to members of the Board of Directors. The
Company will reimburse the observer appointed pursuant to this Section in
connection with such person's role as observer for the reasonable and documented
out-of-pocket expenses and costs (including travel expenses), incurred by such
observer in connection with the performance of his
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service as an observer of the Board of Directors.
2.2 REMOVAL; FILLING OF VACANCIES. Except as set forth in Section
2.1, each Stockholder agrees it will not, and will not permit any Affiliated
Successor of such Stockholder to, vote any shares of Company Stock for the
removal without cause of any director designated by any other Stockholder in
accordance with Section 2.1. Any Stockholder or group of Stockholders who has
the right to designate any member(s) of the Board of Directors shall have the
right to replace any member(s) so designated by it (whether or not such member
is removed from the Board of Directors with or without cause or ceases to be a
member of the Board of Directors by reason of death, disability or for any other
reason) upon written notice to the other Stockholders, the Company and the
members of the Board of Directors which notice shall set forth the name of the
member(s) being replaced and the name of the new member(s). Each of the
Stockholders agree to vote, and to cause its Affiliated Successors to vote, its
shares of Company Stock for the election of any successor director designated by
any Stockholder pursuant to this Section 2.2.
2.3 DIRECTORS. In accordance with the Oklahoma General Corporation
Act and pursuant to the provisions of Section 2.1 of this Agreement, the
Stockholders hereby consent to the election of and do hereby elect in accordance
with Section 2.1 hereof the persons designated in Schedule II hereto as
directors of the Company. Such persons shall hold office until their successors
are duly elected and qualified, except as otherwise provided in this Agreement,
the Restated Certificate or the Restated By-Laws.
2.4 REIMBURSEMENT OF EXPENSES. For so long as JWC and AWS hold their
respective Minimum Equity Ownership, JWC and AWS shall each have the right to
have an observer present at all meetings of the Board of Directors and any
committees thereof (in addition to any directors appointed pursuant to Sections
2.1(a)(i) and (ii) above). The Company will reimburse the observers appointed
pursuant to this Section and each member of the Board of Directors for the
reasonable and documented out-of-pocket expenses and costs (including travel
expenses) incurred by such observers or such directors in connection with the
performance by each such person of his service as an observer or as a director
or as a member of any committee of the Board of Directors.
2.5 BUSINESS OF THE COMPANY. The business and affairs of the Company
shall be conducted by the officers of the Company under the supervision of the
Board of Directors. The Board of Directors of the Company shall meet at least
once per fiscal quarter.
2.6 REQUIRED VOTES. All actions of the Board of Directors of the
Company shall require the vote of at least a majority of the entire Board of
Directors, unless otherwise required by Law, the Restated Certificate, the
Restated By-Laws or this Agreement.
2.7 OTHER ACTIONS. The Company shall not, and shall not permit any of
its Subsidiaries to, take any of the following actions without the prior
approval of a majority of directors of the Board of Directors of the Company:
(i) register securities under the Securities
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Act or grant registration rights; (ii) except as otherwise provided herein,
change the size of the Board of Directors; (iii) change the Company's
independent public accountants; (iv) amend this Agreement, subject to Section
10.3; (v) adversely amend or alter any preferences, rights or powers of the
Class B Common Stock, whether such rights are set forth in the Restated
Certificate, the Restated By-Laws or this Agreement; or (vi) merge or
consolidate with or into another Person, or sell all or substantially all of
its assets or liquidate its assets or business. Nothing in this Section 2.7
is intended to imply that by virtue of the approval of the Board of Directors
pursuant to this Section 2.7 the Company can take any action (including any
action requiring separate or additional approval by the Stockholders herein)
that it is otherwise prohibited from taking.
ARTICLE 3.
TRANSFERS OF SHARES
3.1 TRANSFERS TO MAJOR TELECOM COMPETITORS. Notwithstanding
anything to the contrary contained in this Agreement, except in a registered
public offering not directed to a Major Telecom Competitor, the Xxxxxx
Partnership shall not, nor shall it permit any of its Affiliates (other than
the Company) to, Transfer any shares of Company Stock to a Major Telecom
Competitor, unless such Major Telecom Competitor makes an irrevocable offer
to AWS and its Affiliates to purchase from them for cash, at the same price,
at the same time and otherwise on the same terms and conditions (except for
any non-compete, non-solicit or similar obligations) as the Transfer to such
Major Telecom Competitor by the Xxxxxx Partnership or such Affiliate, all of
the shares of Company Stock then Beneficially Owned by AWS and its
Affiliates. AWS shall have 13 days to accept such offer as to all or any
portion of the Company Stock held by AWS and its Affiliates and, to the
extent AWS and its Affiliates so elect, the Transfer of all of the shares of
Company Stock in respect of which AWS accepted such offer shall be
consummated concurrently with the consummation of any such sale by the Xxxxxx
Partnership or such Affiliate, PROVIDED, that if AWS's sale is subject to the
consent of the FCC or any public service or public utilities commission, such
sale shall be closed on the fifth business day after all such consents shall
have been obtained by Final Order. The provisions of this Section 3.1 shall
not apply to any transferees or assigns of AWS other than its Affiliates.
3.2 TRANSFER AND CONVERSION OF CLASS B COMMON STOCK. The provisions
of the Restated Certificate relating to Transfer and conversion of the Class B
Common Stock, together with related definitions and other terms, as in effect on
the date hereof, are hereby incorporated herein by reference, MUTATIS MUTANDIS,
as if set forth herein in full.
3.3 ADDITIONAL CONDITIONS TO PERMITTED TRANSFERS. As a condition to
any Transfer of Company Stock (other than to the public) permitted pursuant to
this Article 3, each transferee that is not a party hereto shall, prior to such
Transfer, agree in writing to be bound by all of the provisions of this
Agreement applicable to the Stockholders (and shall thereby become a Stockholder
for all purposes of this Agreement). Any transferee of shares of Class B Common
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Stock pursuant to any Transfer made in violation of this Article 3 shall have
no rights as a Stockholder of the Company and no other rights against or with
respect to the Company except the right to receive the same number of shares
of Class A Common Stock upon the automatic conversion of such transferred
shares of Class B Common Stock.
3.4 CAPITAL RAISING.
(a) If the Company or any Subsidiary in the future proposes to
raise private equity capital from any third party or parties, it shall provide
JWC and AWS with the terms of such proposal prior to approaching other potential
investors and shall grant JWC and AWS the initial opportunity to make any such
investment by written notice to JWC and AWS (the "Equity Notice"), PROVIDED that
nothing herein shall require the Company to enter into any agreement or sale
with JWC or AWS as to such private equity capital on terms less favorable than
the prevailing market terms and rates offered to comparable companies to the
Company. If JWC or AWS determines to provide such private equity capital, then
JWC or AWS shall notify the Company and AWS or JWC, as applicable, within 10
days of receipt of the Equity Notice. In the event JWC or AWS fail to provide
such notification prior to the expiration of such period, its rights to provide
such private equity capital shall lapse; if both JWC and AWS fail to provide
such notice, the Company shall have the right for 180 days following the
expiration of such period to issue and sell such equity to a third party at a
price and on other terms no more favorable to such third party than the terms
offered to JWC and AWS. In the event JWC and AWS elect to purchase such equity,
each of JWC and AWS will be entitled to provide its pro rata portion thereof,
determined by reference to their respective holdings of Common Stock then
Beneficially Owned by them on substantially the same terms and conditions. In
the event either JWC or AWS does not elect to purchase its pro rata portion of
such equity, either JWC or AWS, respectively, shall have the right to purchase
all of such equity. The rights of JWC and AWS under this Section shall not be
assignable to any other Person.
(b) The rights provided to JWC and AWS in this Section 3.3
shall terminate (a) in the case of JWC, if JWC ceases to Beneficially Own at
least 1,425,000 shares of Common Stock (as adjusted for stock splits, stock
dividends and similar distributions and events) (the "Private Equity Minimum
Ownership Requirement") and (b) in the case of AWS, if AWS ceases to
Beneficially Own at least the Private Equity Minimum Ownership Requirement. The
number of shares constituting the Private Equity Minimum Ownership Requirement
shall, in the event of any redemption or other acquisition of shares by the
Company, be reduced by the number of shares Beneficially Owned by JWC and/or AWS
that are redeemed or otherwise acquired.
ARTICLE 4.
REGISTRATION RIGHTS
The Company will not grant registration rights for Company Stock to a
Person other than the Stockholders on terms senior to or more favorable than
those granted to the Stockholders.
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4.1 (a) DEMAND REGISTRATION RIGHTS.
(i) RIGHT TO DEMAND REGISTRATION. At any time following 180 days
after the IPO Date (or such longer period as may be reasonably required by the
managing underwriters of the Company's IPO) (A) the Xxxxxx Partnership shall
have the right to make one written request, (B) JWC shall have the right to make
two written requests and (C) AWS shall have the right to make one written
request (each, a "Demanding Stockholder" and, collectively, the "Demanding
Stockholders") to the Company for registration with the Commission, under and in
accordance with the provisions of the Securities Act, of all or part of their
Registrable Securities pursuant to an underwritten offering (a "Demand
Registration"), which request shall specify the number of Registrable Securities
proposed to be sold in the offering; PROVIDED, HOWEVER, that the Company need
not effect a Demand Registration unless the sale of the Registrable Securities
proposed to be sold by the Demanding Stockholder shall reasonably be expected to
result in aggregate gross proceeds of at least $20.0 million. A Demand
Registration shall not be deemed a Demand Registration hereunder until such
Demand Registration has been declared effective by the Commission (without
interference by any stop order, injunction or other order or requirement of the
Commission or other governmental agency, for any reason), and maintained
continuously effective for a period of at least six (6) months or such shorter
period when all Registrable Securities included therein have been sold in
accordance with such Demand Registration. A Demanding Stockholder may make a
written request for a Demand Registration in accordance with the foregoing in
respect of Company Stock that it intends to convert into shares of Common Stock
upon the effectiveness of the Registration Statement prepared in connection with
such demand, and the Company shall fulfill its obligations under this Article 4
in a manner that permits such Demanding Stockholder to exercise its conversion
rights in respect of such Company Stock and substantially contemporaneously sell
the shares of Common Stock issuable upon such conversion under such Registration
Statement.
(ii) SHELF REGISTRATION. In addition to the rights set forth in
the preceding paragraph, each of JWC, AWS and the Xxxxxx Partnership shall have
the right to demand on one occasion that the Company file a registration
statement on Form S-3 (or any successor form to Form S-3) for an offering of
Registrable Securities in which at least $15.0 million of gross proceeds are
reasonably expected therefrom, PROVIDED that the Company is not obligated to
participate in any "road-show" or exceptional marketing, diligence or other
efforts in connection with such offering and, PROVIDED, FURTHER, that each such
Stockholder shall only be permitted to make sales of Registrable Securities
under such registration statement during (A) the twenty business days beginning
on the second business day following the date on which the Company files a
Quarterly Report on Form 10-Q or its Annual Report on Form 10-K ("Normal Selling
Periods") and (B) any period during which a registration statement covering
sales by other securityholders of the Company is effective and such other
securityholders are making sales thereunder or are entitled to make sales
thereunder without obtaining the prior consent of the Company ("Additional
Selling Periods") and together with Normal Selling Periods, "Selling Periods").
The Company shall not be required to monitor or advise the Stockholders of the
existence of Additional Selling Periods, PROVIDED that the Company shall
promptly respond to
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any inquiry from any such Stockholder as to whether an Additional Selling
Period is in effect as of the date of such inquiry and the following ten
business days and, if no Additional Selling Period is in effect on the date
of such inquiry, but an Additional Selling Period becomes effective within
ten business days following the date of such inquiry, the Company shall
promptly notify such Stockholders thereof. This additional demand
registration provided by this paragraph will be a "shelf-registration" under
Rule 415 of the Securities Act to be kept effective for an aggregate period
of one year (a "Shelf Registration"), unless otherwise requested by the
Stockholder demanding such registration. The aggregate one year effective
period for such Shelf Registration shall not run during any period during
which the Stockholder is subject to a lock-up or market standoff agreement
for the benefit of the Company. The procedures and limitations for effecting
the registration of the Registrable Securities on Form S-3 (or any successor
form to Form S-3), including the procedure used for any underwriting
limitation, if sales of Registrable Securities under the Shelf Registration
are pursuant to an underwritten offering, shall be as set forth in this
Article 4 with respect to Demand Registrations and Shelf Registrations will
be considered Demand Registrations for such purposes unless otherwise
specifically provided.
(iii) NOTICE. Within ten (10) days after receipt of the request
for a Demand Registration, the Company will send written notice (the "Demand
Notice") of such Registration request and its intention to comply therewith to
all Stockholders who are holders of Registrable Securities and, subject to
Section 4(a)(iv), the Company will include in such Demand Registration all
Registrable Securities of such Stockholders with respect to which the Company
has received written requests for inclusion therein within twenty (20) days
after the last date such Demand Notice was deemed to have been given pursuant to
Section 4(a).
(iv) PRIORITY ON REGISTRATION. If the managing underwriter or
underwriters advise the Company and the holders of the Registrable Securities to
be registered in writing that in its or their opinion the number of Registrable
Securities proposed to be sold in any Registration under this Section 4(a) and
any other securities of the Company requested or proposed to be included in such
Registration exceeds the number that can be sold in such offering without (A)
creating a substantial risk that the proceeds or price per share that will be
derived from such Registration will be materially reduced or that the number of
Registrable Securities to be registered is too large a number to be reasonably
sold, or (B) materially and adversely affecting such Registration in any other
respect, the Company will (x) include in such Registration the aggregate number
of Registrable Securities recommended by the managing underwriter on the
following basis: FIRST, the Registrable Securities requested to be registered
on behalf of the demanding stockholder, unless the demanding stockholder is the
Xxxxxx Partnership, under this Section 4(a) or (b); SECOND, the Registrable
Securities requested to be registered on behalf of the other Stockholders (other
than the demanding stockholder and the Xxxxxx Partnership) under this Section
4(a); and THIRD, any securities requested to be registered on behalf of the
Xxxxxx Partnership under this Section 4(a); and (y) not allow any securities
other than Registrable Securities to be included in such Registration unless all
Registrable Securities requested to be included shall have been included
therein, and then only to the extent recommended by the managing underwriter or
determined by the Company after consultation with an investment banker of
nationally
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recognized standing (notification of which number shall be given by the
Company to the holders of Registrable Securities).
(v) SELECTION OF UNDERWRITERS. The offering of such Registrable
Securities pursuant to such Demand Registration (other than a Shelf
Registration) shall be in the form of an underwritten offering. The Demanding
Stockholder that initiated such Demand Registration or Shelf Registration, if
applicable, will select a managing underwriter or underwriters of recognized
national standing to administer the offering, which managing underwriter or
underwriters shall be reasonably acceptable to the Company.
(vi) RIGHT TO PREEMPT. Notwithstanding any other provision of
this Agreement to the contrary, the Company shall have the right to preempt any
Demand Registration (including a Shelf-Registration) upon notice to any
Demanding Stockholders stating that the Company intends to effect a registration
of securities for its own account within the succeeding thirty (30) days, in
which case the Company shall be under no obligation to effect such Demand
Registration at that time. The Company shall have the right to preempt a Demand
Registration not more than once in any twelve month period. A Demand
Registration that is preempted pursuant to this paragraph shall not count as a
Demand Registration for purposes of Section 4(a).
(vii) RIGHT TO DEFER. Notwithstanding anything set forth in this
Agreement to the contrary, no more frequently than once in any calendar year,
the Company shall have the right to delay the filing of a registration statement
pursuant to this Section 4(a) and to suspend the effectiveness of any such
registration statement for a reasonable period of time (not exceeding ninety
(90) days) if the Company furnishes to JWC and AWS a certificate signed by the
Chairman of the Board or the President of the Company stating that the Company
has determined in good faith that effecting such registration at such time would
adversely affect a material financing, acquisition, disposition of assets or
stock, merger or other comparable transaction or would require the Company to
make public disclosure of information the public disclosure of which would have
a material adverse effect upon the Company.
(b) PIGGYBACK REGISTRATION RIGHTS.
(i) RIGHT TO PIGGYBACK. If the Company proposes to register any
shares of Common Stock (or securities convertible into or exchangeable for
Common Stock) with the Commission under the Securities Act (other than a
registration on Form S-4 or Form S-8, or any successor forms), and the
registration form to be used may be used for the registration of the Registrable
Securities (a "Piggyback Registration"), the Company will give written notice (a
"Piggyback Notice") to all Stockholders, at least thirty (30) days prior to the
anticipated filing date, of its intention to effect such a Registration, which
notice will specify the proposed offering price (if determined at that time),
the kind and number of securities proposed to be registered, the distribution
arrangements and will, include in such Piggyback Registration, subject to
Section 4(b)(ii) below, all Registrable Securities with respect to which the
Company has received written requests (which requests have not been withdrawn)
for inclusion therein within twenty (20) days after the last date such Piggyback
Notice was deemed to have been given pursuant to Section
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10.2. If at any time after giving the Piggyback Notice and prior to the
effective date of the Registration Statement filed in connection with such
Registration, the Company determines for any reason not to register or to
delay Registration, the Company may, at its election, give written notice of
such determination to each holder of Registrable Securities that has
requested inclusion of Registrable Securities in such Registration and (A) in
the case of a determination not to register, shall be relieved of its
obligation to register any Registrable Securities in connection with such
Registration, and (B) in the case of a determination to delay registering,
shall be permitted to delay registering any Registrable Securities for the
same period as the delay in registering such other securities.
(ii) PRIORITY ON REGISTRATION. If the managing underwriter or
underwriters advise the Company and the holders of the Registrable Securities to
be registered that in its or their opinion the number of Registrable Securities
proposed to be sold in any Registration under this Section 4(b) and any other
securities of the Company requested or proposed to be included in such
Registration exceeds the number that can be sold in such offering without (A)
creating a substantial risk that the proceeds or price per share that will be
derived from such Registration will be materially reduced or that the number of
Registrable Securities to be registered is too large a number to be reasonably
sold, or (B) materially and adversely affecting such Registration in any other
respect, the Company will include in such Registration the aggregate number of
Registrable Securities recommended by the managing underwriter on the following
basis:
(A) If a Piggyback Registration is on a Demand Registration under
Section 4(a), the Company shall include, Registrable Securities in accordance
with the priorities set forth in Section 4(a)(iv); and
(B) If a Piggyback Registration is on an underwritten primary
registration on behalf of the Company, the Company shall include, FIRST the
securities proposed to be sold by the Company for its own account; SECOND, the
Registrable Securities to be registered on behalf of JWC and AWS; and THIRD, any
securities to be registered on behalf of the Xxxxxx Partnership and any other
Stockholder, in each case PRO RATA based on the amount of Registrable Securities
of the Stockholders requested to be included in such Registration.
The Company will not allow any securities other than Registrable Securities to
be included in such Registration unless all Registrable Securities requested to
be included shall have been included therein, and then only to the extent
recommended by the managing underwriter or determined by the Company after
consultation with an investment banker of nationally recognized standing
(notification of which number shall be given by the Company to the holders of
Registrable Securities).
(c) SELECTION OF UNDERWRITERS. Except as set forth in Section
4.1(a)(iv), the Company (by action of the Board of Directors) will select the
managing underwriter or underwriters to administer offerings of its Company
Stock, which managing underwriter or underwriters will be of nationally
recognized standing.
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(d) REGISTRATION PROCEDURES. With respect to any Demand Registration
(including a Shelf Registration) or Piggyback Registration (each, a
"Registration"), the Company shall, subject to Sections 4(a)(i) and (4)(a)(iv)
and Section 4(b)(i), as expeditiously as practicable:
(i) prepare and file with the Commission, as promptly as
reasonably practicable (but in no event more than forty-five (45) days) after
the receipt of the Registration requests under Sections 4(a) or 4(b), a
registration statement or registration statements (each, a "Registration
Statement") relating to the applicable Registration on any appropriate form
under the Securities Act, which form shall be available for the sale of the
Registrable Securities in accordance with the intended method or methods of
distribution thereof; cooperate and assist in any filings required to be made
with the NASD; and use its commercially reasonable efforts to cause such
Registration Statement to become and (to the extent provided herein) remain
effective; provided, however, that before filing a Registration Statement or
prospectus related thereto ("Prospectus") or any amendment or supplement
thereto, the Company shall furnish to the holders of the Registrable Securities
covered by such Registration Statement a copy of the information to be included
therein which relates specifically to such holder (i.e., its name, address and
number of Registrable Securities proposed to be sold) and its intended method of
distribution.
(ii) prepare and file with the Commission such amendments
and supplements to the Registration Statement as may be necessary to keep each
Registration Statement effective for six (6) months (twelve (12) months or such
longer period as is necessary to comply with the provisions of Section 4(a)(ii)
in the case of any Shelf Registration requested by a Stockholder pursuant to
this Article 4) or such shorter period that will terminate when all Registrable
Securities covered by such Registration Statement have been sold; cause each
Prospectus to be supplemented by any required Prospectus supplement, and as so
supplemented to be filed pursuant to Rule 424 under the Securities Act; and
comply with the provisions of the Securities Act with respect to the disposition
of all securities covered by such Registration Statement during the applicable
period in accordance with the intended method or methods of distribution by the
sellers thereof set forth in such Registration Statement or supplement to the
Prospectus;
(iii) promptly notify the selling holders of Registrable
Securities and the managing underwriters, if any (and, if requested by any such
Person or entity, confirm such advice in writing), (A) when the Prospectus or
any Prospectus supplement or post-effective amendment has been filed, and, with
respect to the Registration Statement or any post-effective amendment, when the
same has become effective; (B) of any request by the Commission for amendments
or supplements to the Registration Statement or the Prospectus or for additional
information; (C) of the issuance by the Commission of any stop order suspending
the effectiveness of the Registration Statement or the initiation of any
proceedings for that purpose; (D) if at any time the representations and
warranties of the Company contemplated by subsection (xiv) of this subsection
(d) below cease to be true and correct; (E) of the receipt by the Company of any
notification with respect to the suspension of the qualification of the
Registrable Securities for sale under the securities or blue sky laws of any
jurisdiction or the initiation or
-18-
threatening of any proceeding for such purpose; and (F) of the happening of
any event which makes any statement made in the Registration Statement, the
Prospectus or any document incorporated therein by reference untrue or which
requires the making of any changes in the Registration Statement, the
Prospectus or any document incorporated therein by reference in order to make
the statements therein not misleading;
(iv) use its commercially reasonable efforts to obtain the
withdrawal of any order suspending the effectiveness of (I) the Registration
Statement, or (II) the qualification of the Registrable Securities for sale
under the securities or blue sky laws of any jurisdiction at the earliest
possible time;
(v) if requested by the managing underwriter or
underwriters or a holder of Registrable Securities being sold in connection with
an underwritten offering, promptly incorporate in a Prospectus supplement or
post-effective amendment such information as the managing underwriters and the
holders of a majority of the Registrable Securities being sold agree should be
included therein relating to the plan of distribution with respect to such
Registrable Securities, including, without limitation, information with respect
to the number of Registrable Securities being sold to such underwriters, the
purchase price being paid therefor by such underwriters and any other terms of
the underwritten (or best efforts underwritten) offering of the Registrable
Securities to be sold in such offering; and make all required filings of such
Prospectus supplement or post-effective amendment as soon as notified of the
matters to be incorporated in such Prospectus supplement or post-effective
amendment;
(vi) furnish to each selling holder of Registrable
Securities and each managing underwriter, without charge, at least one signed
copy of the Registration Statement and any amendment thereto, including
financial statements and schedules, all documents incorporated therein by
reference and all exhibits (including those incorporated by reference);
(vii) deliver to each selling holder of Registrable
Securities and the underwriters, if any, without charge, as many copies of the
Prospectus (including each preliminary prospectus) and any amendment or
supplement thereto as such selling holder of Registrable Securities underwriters
may reasonably request in order to facilitate the public sale or other
disposition of the securities owned by such selling holder;
(viii) prior to any public offering of Registrable
Securities, use its reasonable best efforts to register or qualify or cooperate
with the selling holders of Registrable Securities, the underwriters, if any,
and their respective counsel in connection with the Registration or
qualification of such Registrable Securities for offer and sale under the
securities or "blue sky" laws of such jurisdictions in the United States as any
seller or underwriter reasonably requests in writing, use its reasonable best
efforts to obtain all appropriate registrations, permits and consents required
in connection therewith, and do any and all other acts or things reasonably
necessary or advisable to enable the disposition in such jurisdictions of the
Registrable Securities covered by the Registration Statement; PROVIDED, HOWEVER,
that the Company will not be required to qualify generally to do business in any
jurisdiction where it is
-19-
not then so qualified or to take any action that would subject it to taxation
or general service of process in any such jurisdiction where it is not then
so subject;
(ix) cooperate with the selling holders of Registrable
Securities and the managing underwriters, if any, to facilitate the timely
preparation and delivery of certificates representing Registrable Securities to
be sold and not bearing any restrictive legends and to be in such denominations
and registered in such names as the managing underwriters may request at least
two (2) business days prior to any sale of Registrable Securities to the
underwriters;
(x) use its reasonable best efforts to cooperate with any
selling holder to cause the Registrable Securities covered by the applicable
Registration Statement to be registered with or approved by such other
governmental agencies or authorities in the United States as may be necessary to
enable the seller or sellers thereof or the underwriters, if any, to consummate
the disposition of such Registrable Securities;
(xi) upon the occurrence of any event contemplated by
subsection (iii)(F) above, promptly prepare a supplement or post-effective
amendment to the Registration Statement or the related Prospectus or any
document incorporated therein by reference or file any other required document
so that, as thereafter delivered to the purchasers of the Registrable
Securities, the Prospectus will not contain an untrue statement of a material
fact or omit to state any material fact necessary to make the statements therein
not misleading;
(xii) cause all Registrable Securities covered by any
Registration Statement to be listed on each securities exchange on which similar
securities issued by the Company are then listed, or, if not so listed, cause
such Registrable Securities to be authorized for trading on the NASDAQ National
Market System if any similar securities issued by the Company are then so
authorized, if requested by the holders of a majority of such Registrable
Securities or the managing underwriters, if any;
(xi) not later than the effective date of the applicable
Registration, provide a CUSIP number for all Registrable Securities;
(xii) enter into such customary agreements (including in
the case of a Demand Registration that is an underwritten offering, an
underwriting agreement in customary form) and take all such other actions
reasonably required in connection therewith in order to expedite or facilitate
the disposition of such Registrable Securities and in such connection, whether
or not an underwriting agreement is entered into and whether or not the
Registration is an underwritten Registration, (A) make such representations and
warranties to the underwriters, if any, in form, substance and scope as are
customarily made by issuers to underwriters in primary underwritten offerings;
(B) use reasonable best efforts to obtain opinions of counsel to the Company and
updates thereof (which opinions of counsel shall be in form, scope and substance
reasonably satisfactory to the managing underwriters, if any, addressed to the
underwriters, if any, covering the matters customarily covered in opinions
requested in underwritten offerings and such other matters as may be reasonably
requested by such holders
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and underwriters; (C) use reasonable best efforts to obtain "cold comfort"
letters and updates thereof from the Company's independent certified public
accountants addressed to the underwriters, if any, such letters to be in
customary form and covering matters of the type customarily covered in "cold
comfort" letters by underwriters in connection with primary underwritten
offerings; and (D) deliver such documents and certificates as may be
reasonably requested by the holders of a majority of the Registrable
Securities being sold and the managing underwriters, if any, to evidence
compliance with subsection (xi) above and with any customary conditions
contained in the underwriting agreement or other agreement entered into by
the Company. All the above in this Section 4(d)(xiv) shall be done at each
closing under each underwriting or similar agreement or as and to the extent
required thereunder;
(xiii) make available for inspection by a representative of
each Demanding Stockholder or selling holder, any underwriter participating in
any disposition pursuant to such Registration, and any attorney or accountant
retained by the sellers or underwriter, copies or extracts of all financial and
other records, pertinent corporate documents and properties of the Company as
shall be reasonably necessary, in the opinion of the holders' or underwriter's
counsel, to enable them to fulfill their due diligence responsibilities; and
cause the Company's officers, directors and employees to supply all information
reasonably requested by any such representative, underwriter, attorney or
accountant in connection with such Registration Statement; PROVIDED, HOWEVER,
that the Company shall not be required to comply with this paragraph (xv) unless
such Person executes confidentiality agreements whereby such Person agrees that
any records, information or documents that are designated by the Company in
writing as confidential shall be kept confidential by such Persons and used only
in connection with the proposed Registration unless disclosure of such records,
information or documents is required by court or administrative order or any
regulatory body having jurisdiction; and each seller of Registrable Securities
agrees that it will, upon learning that disclosure of such records, information
or documents is sought in a court of competent jurisdiction or by a governmental
agency, give notice to the Company and allow the Company, at the Company's
expense, to undertake appropriate action to prevent disclosure of any records,
information or documents deemed confidential; PROVIDED FURTHER, HOWEVER,
notwithstanding any designation of confidentiality by the Company, confidential
information shall not include information which (i) becomes generally available
to the public other than as a result of a disclosure by or on behalf of any such
Person, or (ii) becomes available to any such Person on a non-confidential basis
from a source other than the Company or its advisors, PROVIDED that such source
is not to such Person's knowledge bound by a confidentiality agreement with or
other obligations of secrecy to the Company or another party with respect to
such information; and
(xvi) otherwise use its reasonable best efforts to comply
with all applicable rules and regulations of the Commission, and make generally
available to its security holders, earnings statements satisfying the provisions
of Section 11(a) of the Securities Act, no later than forty-five (45) days after
the end of any twelve (12)-month period (or ninety (90) days, if such period is
a fiscal year) (A) commencing at the end of any fiscal quarter in which
Registrable Securities are sold to underwriters in a firm or best efforts
underwritten offering, or (B) if not sold to underwriters in such an offering,
beginning with the first month of the
-21-
Company's first fiscal quarter commencing after the effective date of the
Registration Statement, which statements shall cover said twelve (12)-month
periods.
The Company may require each seller of Registrable Securities as
to which any Registration is being effected to furnish to the Company such
information regarding the proposed distribution of such securities as the
Company may from time to time reasonably request in writing. Each holder of
Registrable Securities agrees by acquisition of such Registrable Securities
that, upon receipt of any notice from the Company of the happening of any event
of the kind described in Section 4(d)(xi), such holder shall forthwith
discontinue disposition of Registrable Securities until such holder's receipt of
the copies of the supplemented or amended prospectus contemplated by Section
4(d)(xi), or until it is advised in writing (the "Advice") by the Company that
the use of the Prospectus may be resumed, and has received copies of any
additional or supplemental filings that are incorporated by reference in the
Prospectus; and, if so directed by the Company, such holder shall deliver to the
Company (at the Company's expense) all copies, other than permanent file copies
then in such seller's possession, of the Prospectus covering such Registrable
Securities current at the time of receipt of such notice. In the event the
Company gives any such notice, the time periods regarding the maintenance of the
effectiveness of any Registration Statement in Section 4(d)(ii) shall be
extended by the number of days during the period from and including the date of
the receipt of such notice pursuant to Section 4(d)(iii)(F) hereof to and
including the date when each seller of Registrable Securities covered by such
Registration Statement shall have received the copies of the supplemented or
amended prospectuses contemplated by Section 4(d)(xi) or the Advice.
(e) INDEMNIFICATION.
(i) In the event of the Registration or qualification of any
Registrable Securities under the Securities Act or any other applicable
securities laws pursuant to the provisions of this Article 4, the Company agrees
to indemnify and hold harmless each Stockholder thereby offering such
Registrable Securities for sale (an "Indemnified Stockholder"), underwriter,
broker or dealer, if any, of such Registrable Securities, and each other Person,
if any, who controls any such Indemnified Stockholder, underwriter, broker or
dealer within the meaning of the Securities Act or any other applicable
securities laws, from and against any and all losses, claims, damages, expenses
or liabilities (or actions in respect thereof), joint or several, to which such
Indemnified Stockholder, underwriter, broker or dealer or controlling person may
become subject under the Securities Act or any other applicable federal or state
securities laws or otherwise, insofar as such losses, claims, damages, expenses
or liabilities (or actions in respect thereof) arise out of or are based upon
any untrue statement or alleged untrue statement of any material fact contained
in any Registration Statement under which such Registrable Securities were
registered or qualified under the Securities Act or any other applicable
securities laws, any preliminary Prospectus or final Prospectus relating to such
Registrable Securities, or any amendment or supplement thereto, or arise out of
or are based upon the omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements therein
not misleading, or any violation by the Company of any rule or regulation under
the Securities Act or any other applicable federal or state securities laws
applicable to the Company or relating to any action or
-22-
inaction required by the Company in connection with any such Registration or
qualification, and will reimburse each such Indemnified Stockholder,
underwriter, broker or dealer and each such controlling person for any legal
or other expenses reasonably incurred by such Indemnified Stockholder,
underwriter, broker or dealer or controlling person in connection with
investigating or defending any such loss, claim, damage, expense, liability
or action; PROVIDED, HOWEVER, that the Company will not be liable in any such
case to the extent that any such loss, claim, damage, expense or liability
arises out of or is based upon an untrue statement or omission contained in
such Registration Statement, such preliminary Prospectus, such final
Prospectus or such amendment or supplement thereto, made in reliance upon and
in conformity with written information furnished to the Company by such
Indemnified Stockholder, underwriter, broker, dealer or controlling person
specifically and expressly for use in the preparation thereof or by the
failure of such Indemnified Stockholder, underwriter, broker or dealer, or
controlling person to deliver a copy of the Registration Statement, such
preliminary Prospectus, such final Prospectus or such amendment or supplement
thereto after the Company has furnished such party with a sufficient number
of copies of the same and such party failed to deliver or otherwise provide a
copy of the final Prospectus to the Person asserting an untrue statement or
omission or alleged untrue statement or omission at or prior to the written
confirmation of the sale of securities to such person, if such statement or
omission was in fact corrected in such final Prospectus.
(ii) In the case of an underwritten offering in which the
Registration Statement covers Registrable Securities, the Company agrees to
enter into an underwriting agreement in customary form and substance with such
underwriters and to indemnify the underwriters, their officers and directors, if
any, and each person, if any, who controls such underwriters within the meaning
of Section 15 of the Securities Act and Section 20 of the Exchange Act, to the
same extent as provided in the preceding paragraph with respect to the
indemnification of the holders of Registrable Securities; PROVIDED, HOWEVER, the
Company shall not be required to indemnify any such underwriter, or any officer
or director of such underwriter or any person who controls such underwriter
within the meaning of Section 15 of the Securities Act and Section 20 of the
Exchange Act, to the extent that the loss, claim, damage, expense or liability
(or actions in respect thereof) for which indemnification is sought results from
such underwriter's failure to deliver or otherwise provide a copy of the final
Prospectus to the Person asserting an untrue statement or omission or alleged
untrue statement or omission at or prior to the written confirmation of the sale
of securities to such Person, if such statement or omission was in fact
corrected in such final Prospectus.
(iii) In the event of the Registration or qualification of any
Registrable Securities of the Stockholders under the Securities Act or any other
applicable federal or state securities laws for sale pursuant to the provisions
hereof, each Indemnified Stockholder agrees severally, and not jointly, to
indemnify and hold harmless the Company, each Person who controls the Company
within the meaning of the Securities Act, and each officer and director of the
Company from and against any losses, claims, damages, expenses or liabilities
(or actions in respect thereof), joint or several, to which the Company, such
controlling person or any such officer or director may become subject under the
Securities Act or any other applicable securities laws or otherwise, insofar as
such losses, claims, damages, expenses or liabilities (or actions in respect
-23-
thereof) arise out of or are based upon any untrue statement of any material
fact contained in any Registration Statement under which such Registrable
Securities were registered or qualified under the Securities Act or any other
applicable securities laws, any preliminary Prospectus or final prospectus
relating to such Registrable Securities, or any amendment or supplement thereto,
or arise out of or are based upon an untrue statement therein or the omission to
state therein a material fact required to be stated therein or necessary to make
the statements therein not misleading, which untrue statement or omission was
made therein in reliance upon and in conformity with written information
furnished to the Company by such Indemnified Stockholder specifically and
expressly for use in connection with the preparation thereof, and will reimburse
the Company, such controlling person and each such officer or director for any
legal or any other expenses reasonably incurred by them in connection with
investigating or defending any such loss, claim, damage, expense, liability or
action; provided, however, an Indemnified Stockholder's liability under this
Section 4(e)(iii) shall not exceed he net proceeds received by such Indemnified
Stockholder with respect to the sale of any Registrable Securities.
(iv) In the case of an underwritten offering of Registrable
Securities, each holder of a Registrable Security included in a Registration
Statement shall agree to enter into an underwriting agreement in customary form
and substance with such underwriters, and to indemnify such underwriters, their
officers and directors, if any, and each person, if any, who controls such
underwriters within the meaning of Section 15 of the Securities Act and Section
20 of the Exchange Act, to the same extent as provided in the preceding
paragraph with respect to indemnification by such holder of the Company, but
subject to the same limitation as provided in Section 4(e)(ii) with respect to
indemnification by the Company of such underwriters, officers, directors and
control persons.
(v) Promptly after receipt by a person entitled to
indemnification under this Section 4(e) (an "Indemnified Party") of notice of
the commencement of any action or claim relating to any Registration Statement
filed under this Article 4 as to which indemnity may be sought hereunder, such
Indemnified Party will, if a claim for indemnification hereunder in respect
thereof is to be made against any other party hereto (an "Indemnifying Party"),
give written notice to each such Indemnifying Party of the commencement of such
action or claim, but the omission to so notify each such Indemnifying Party will
not relieve any such Indemnifying Party from any liability which it may have to
any Indemnified Party otherwise than pursuant to the provisions of this Section
4(e) and shall also not relieve any such Indemnifying Party of its obligations
under this Section 4(e) except to the extent that any such Indemnifying Party is
actually prejudiced thereby. In case any such action is brought against an
Indemnified Party, and such Indemnified Party notifies an Indemnifying Party of
the commencement thereof, such Indemnifying Party will be entitled (at its own
expense) to participate in and, to the extent that it may wish, jointly with any
other Indemnifying Party similarly notified, to assume the defense, with counsel
reasonably satisfactory to such Indemnified Party, of such action and/or to
settle such action and, after notice from the Indemnifying Party to such
Indemnified Party of its election so to assume the defense thereof, the
Indemnifying Party will not be liable to such Indemnified Party for any legal or
other expenses subsequently incurred by such Indemnified Party in connection
with the defense thereof, other than the reasonable cost of investigation;
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PROVIDED, HOWEVER, that no Indemnifying Party shall consent to the entry of any
judgment or enter into any settlement agreement without the prior written
consent of the Indemnified Party unless such Indemnified Party is fully released
and discharged from any such liability, and no Indemnified Party shall consent
to the entry of any judgment or enter into any settlement of any such action the
defense of which has been assumed by an Indemnifying Party without the consent
of each Indemnifying Party. Notwithstanding the foregoing, the Indemnified Party
shall have the right to employ its own counsel in any such case, but the fees
and expenses of such counsel shall be at the expense of such Indemnified Party
unless (a) the employment of such counsel shall have been authorized in writing
by the Indemnifying Party in connection with the defense of such suit, action,
claim or proceeding; (b) the Indemnifying Party shall not have employed counsel
(reasonably satisfactory to the Indemnified Party) to take charge of the defense
of such action, suit, claim or proceeding; or (c) such Indemnified Party shall
have reasonably concluded, based upon the advice of counsel, that there may be
defenses available to it which are different from or additional to those
available to the Indemnifying Party which, if the Indemnifying Party and the
Indemnified Party were to be represented by the same counsel, could result in a
conflict of interest for such counsel or materially prejudice the prosecution of
the defenses available to such Indemnified Party. If any of the events specified
in clause (a), (b) or (c) of the preceding sentence shall have occurred or shall
otherwise be applicable, then the fees and expenses of one counsel or firm of
counsel selected by a majority in interest of the Indemnified Parties (and
reasonably acceptable to the Indemnifying Party) shall be borne by the
Indemnifying Party. If, in any such case, the Indemnified Party employs separate
counsel, the Indemnifying Party shall not have the right to direct the defense
of such action, sut, claim or proceeding on behalf of the Indemnified Party and
the Indemnified Party shall assume such defense and/or settle such action;
PROVIDED, HOWEVER, that an Indemnifying Party shall not be liable for the
settlement of any action, suit, claim or proceeding effected without its prior
written consent, which consent shall not be unreasonably withheld.
The provisions of this Section 4(e) shall be in addition to any
liability which any party may have to any other party and shall survive any
termination of this Agreement.
(f) CONTRIBUTION. If for any reason the indemnification provided
for in Section 4(e)(i) or 4(e)(iii) is unavailable to an Indemnified Party as
contemplated therein, then the Indemnifying Party, in lieu of indemnification
shall contribute to the amount paid or payable by the Indemnified Party as a
result of such loss, claim, damage, expense or liability (or action in respect
thereof) in such proportion as is appropriate to reflect not only the relative
benefits received by the Indemnified Party and the Indemnifying Party, but also
the relative fault of the Indemnified Party and the Indemnifying Party, as well
as any other relevant equitable considerations, PROVIDED that no Stockholder
shall be required to contribute in an amount greater than the net proceeds
received by such Stockholder with respect to the sale of any Registrable
Securities less all amounts already contributed by such Stockholder with respect
to such claims, including amounts paid for any legal or other fees or expenses
incurred by such Stockholder. No person guilty of a fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any person who was not guilty of any such
fraudulent misrepresentation. The relative fault of such Indemnifying Party and
Indemnified
-25-
Party shall be determined by reference to, among other things, whether any
action in question, including any untrue or alleged untrue statement of a
material fact or omission or alleged omission to state a material fact, has
been made by, or relates to information supplied by, such Indemnifying Party
or Indemnified Party, and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such action.
(g) REGISTRATION EXPENSES. Except as hereinafter provided, all
expenses incident to the Company's performance of or compliance with this
Article 4 will be borne by the Company, including, without limitation, all
Registration and filing fees under the Securities Act and the Exchange Act, the
fees and expenses of the counsel and accountants for the Company (including the
expenses of any "cold comfort" letters and special audits required by or
incident to the performance of such persons), all other costs and expenses of
the Company incident to the preparation, printing and filing under the
Securities Act of the Registration Statement (and all amendments and supplements
thereto), and furnishing copies thereof and of the Prospectus included therein,
all out-of-pocket expenses of underwriters customarily paid for by issuers to
the extent provided for in any underwriting agreement, the costs and expenses
incurred by the Company in connection with the qualification of the Registrable
Securities under the state securities or "blue sky" laws of various
jurisdictions, the costs and expenses associated with filings required to be
made with the NASD, the costs and expenses of listing the Registrable Securities
for trading on a national securities exchange or authorizing them for trading on
NASDAQ and all other costs and expenses incurred by the Company in connection
with any Registration hereunder. In addition, the Company shall pay or
reimburse the sellers of Registrable Securities the reasonable fees and expenses
of one law firm to such sellers incurred in connection with a registration
(collectively, with the expenses referred to in the immediately preceding
sentence, the "Registration Expenses"). Except as provided in the immediately
preceding sentence, each Stockholder shall bear the costs and expenses of any
underwriters' discounts and commissions, brokerage fees or transfer taxes
relating to the Registrable Securities sold by such Stockholder and the fees and
expenses of any attorneys, accountants or other representatives retained by the
Stockholder.
(h) PARTICIPATION IN UNDERWRITTEN REGISTRATIONS. No Stockholder
may participate in any underwritten Registration hereunder unless such
Stockholder (i) agrees to sell its Registrable Securities on the basis provided
in any customary and reasonable underwriting arrangements approved by the
persons entitled hereunder to select the underwriter, and (ii) accurately
completes in a timely manner and executes all questionnaires, powers of
attorney, underwriting agreements, indemnities and other documents customarily
required under the terms of such underwriting arrangements.
(i) HOLDBACK AGREEMENTS.
(i) Each holder of Registrable Securities whose securities
are included in a Registration Statement agrees not to effect any sale, transfer
or other disposition of Company Stock or any securities convertible into
Company Stock or other interest in the Company, including through any hedging or
derivative transaction or to effect any distribution of the issue
-26-
being registered or a similar security of the Company, or any securities
convertible into or exchangeable or exercisable for such securities,
including a sale pursuant to Rule 144 or Rule 144A under the Securities Act,
during the fifteen (15) days prior to, and during the one hundred eighty
(180)-day period (or such longer period as reasonably requested by the
managing underwriter or underwriters in the case of an underwritten public
offering) beginning on, the effective date of such Registration Statement
(except as part of such Registration), if and to the extent requested by the
managing underwriter or underwriters in an underwritten public offering.
(ii) The Company agrees not to effect any public sale or
distribution of the issue being registered or a similar security of the Company,
or any securities convertible into or exchangeable or exercisable for such
securities (other than any such sale or distribution of such securities in
connection with any merger or consolidation by the Company or any Subsidiary or
the acquisition by the Company or any Subsidiary of the capital stock or
substantially all of the assets of any other Person), during the fifteen (15)
days prior to, and during the ninety (90)-day period beginning on, the effective
date of each Demand Registration.
(j) PUBLIC INFORMATION REPORTING. (i) The Company hereby
covenants and agrees to and with the Stockholders that at all times following
the IPO Date it shall provide and file such financial and other information
concerning the Company as may from time to time be required by the Commission
and any other Governmental Authority having jurisdiction, so as to comply with
all reporting requirements under the Exchange Act, and shall, upon request,
state in writing that it has complied with all such requirements, and further
agrees that, for so long as (following the IPO Date) the Company is not subject
to Section 13 or 15(d) of the Exchange Act, the Company shall comply in all
respects with paragraph (c)(2) of Rule 144.
(ii) If the Company shall have filed a registration
statement pursuant to the requirements of Section 12 of the Exchange Act or a
registration statement pursuant to the requirements of the Securities Act, the
Company covenants that it will file the reports required to be filed by it under
the Securities Act and the Exchange Act and the rules and regulations adopted by
the Commission thereunder (or, if the Company is not required to file such
reports, it will, upon the request of any holder of Registrable Securities, make
publicly available other information), and it will take such further action as
any holder of Registrable Securities may reasonably request, all to the extent
required from time to time to enable such holder to sell shares of Registrable
Securities without registration under the Securities Act within the limitation
of the exemptions provided by (i) Rule 144 under the Securities Act, as such
Rule may be amended from time to time, or (ii) any similar rule or regulation
hereafter adopted by the Commission. Upon the request of any holder of
Registrable Securities, the Company will deliver to such holder a written
statement as to whether it has complied with such requirements. Upon the request
of a holder of Registrable Securities, the Company covenants and agrees to
provide the information required by Rule 144A(d)(4) under the Securities Act.
ARTICLE 5.
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ADDITIONAL RIGHTS AND COVENANTS
5.1 CONFIDENTIALITY.
(a) Each party shall, and shall cause each of its Affiliates,
and its and their respective stockholders, members, managers, directors,
officers, employees and agents (collectively, "Representatives") to, keep
secret and retain in strictest confidence any and all information relating to
the Company or any other party that is either a trade secret or material,
non-public information or is designated in writing by the party providing
such information or the Company as confidential (other than, in each case,
such information as is otherwise or becomes publicly available (other than in
violation of this Agreement or other applicable confidentiality agreements
among the parties), or has been or is independently developed or obtained
from a person in a manner not in violation of this Agreement or, to its
knowledge, any other confidentiality agreement) ("Confidential Information")
and shall not disclose such information, and shall cause its Representatives
not to disclose such information, to anyone except such Affiliates,
Representatives or any other Person that agrees in writing to keep in
confidence all such information in accordance with the terms of this Section
5.1. Each party agrees to use such information received from another party
or the Company only in connection with its ownership interest in the Company
but not for any other purpose. All such information furnished pursuant to
this Agreement shall be returned promptly to the party to whom it belongs
upon request by such party.
(b) To the fullest extent permitted by law, if a party or any
of its Affiliates or Representatives breaches, or threatens to commit a
breach of, this Section 5.1, the party whose Confidential Information shall
be disclosed, or threatened to be disclosed, shall have the right and remedy
to have this Section 5.1 specifically enforced by any court having
jurisdiction, it being acknowledged and agreed that money damages will not
provide an adequate remedy to such party. Nothing in this Section 5.1 shall
be construed to limit the right of any party to collect money damages in the
event of breach of this Section 5.1.
(c) Anything else in this Agreement notwithstanding, each
party shall have the right to disclose any information, including
Confidential Information of the other party or such other party's Affiliates,
in any filing with any regulatory agency, court or other authority or any
disclosure to a trustee of public debt of a party to the extent that the
disclosing party determines in good faith that it is required by Law,
regulation or the terms of such debt to do so; PROVIDED, HOWEVER, that any
such disclosure shall be as limited in scope as possible and shall be made
only after giving the other party as much notice as practicable of such
required disclosure and an opportunity to contest such disclosure if possible.
5.2 POOLING OF INTERESTS. In the event that the Company is sold in
a transaction involving a "pooling of interests" transaction, for a period of
not more than 90 days following consummation of such transaction, no
Stockholder shall sell, transfer or otherwise dispose of any Company Stock,
securities convertible into Company Stock or any other interest in the
-28-
Company, if any such sale, transfer or other disposition would limit or deny
the applicability of the treatment of such pooling of interests.
5.3 INSPECTION OF PROPERTIES AND BOOKS. Subject to the provisions
of Section 5.5 below, each of the Company and the Subsidiaries shall permit
each of AWS or JWC, or any of their designated representatives, at the
Company's cost, to visit and inspect any of its properties, to examine its
books of account (and to make copies thereof and extracts therefrom), and,
upon reasonable notice, to discuss its affairs, finances and accounts with,
and to be advised as to the same by, officers or partners of such Persons,
all at such times and intervals during normal business hours and after
reasonable notice as AWS or JWC may reasonably request, PROVIDED, that in no
event shall any such visit, inspection, examination, discussion or advice
interfere in any material respect in the business or other operations of the
Company or any of its employees, representatives or officers.
5.4 INFORMATION COVENANTS. Subject to the provisions of Section
5.5 below, the Company hereby agrees that it will comply with, and it will
cause each Subsidiary to comply with, the following provisions:
5.4.1 ANNUAL STATEMENTS. (a) As soon as available to the
public (or, if the Company ceases to make such information available to the
public, within 90 days) after the close of each fiscal year of the Company,
the Company will deliver to each of AWS and JWC, audited consolidated and
unaudited consolidating balance sheets and statements of income and retained
earnings and of cash flows of the Company audited by Xxxxxx Xxxxxxxx, L.L.P.
or any other public accounting firm selected by the Company and reasonably
acceptable to AWS and JWC, showing the financial condition of the Company as
of the close of such fiscal year and the results of the Company's operations
during such fiscal year, all on a consolidated basis.
(b) Each of the financial statements delivered pursuant to
this SECTION 5.4.1 shall be certified without qualification by the applicable
accounting firm to have been prepared in accordance with GAAP consistently
applied.
5.4.2 QUARTERLY STATEMENTS. As soon as available to the
public (or, if the Company ceases to make such information available to the
public, within 45 days after the end of each fiscal quarter), the Company
will deliver to each of AWS and JWC consolidated and consolidating unaudited
balance sheets and statements of income and retained earnings and of cash
flows of the Company as of the end of each such quarter and for the period of
the then current fiscal year to the end of such month, and presenting on a
comparative basis the corresponding figures for such period in the preceding
fiscal year and the then current Budget (as defined below), in each case by
region, certified by the Chief Financial Officer of the Company to be true
and correct and to have been prepared in accordance with GAAP subject to
normal year-end adjustments described in reasonable detail.
5.4.3 BUDGETS AND OTHER REPORTS. (a) The Company will
deliver to each of AWS and JWC, prior to the commencement of each fiscal year
projected spending and capital budgets
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for the succeeding fiscal year, projected monthly statements of income and
cash flow for such fiscal year (the "Budget"), projected quarterly balance
sheets for such fiscal year and as soon as practical after preparation
thereof, complete and correct copies of all quarterly (if any) or annual
budgetary analyses or forecasts of the Company and the Subsidiaries in the
form customarily prepared by management for its own internal use or the use
of the Company.
(b) The Company shall also furnish to each of AWS and
JWC (i) within five (5) days of the Company's receipt thereof, copies of all
management letters of the Company's accountants; (ii) within five (5) days of
the Company's receipt thereof, notice with respect to any material pending or
threatened litigation to which the Company or any Subsidiary is or may become
a party; (iii) within five (5) days of the Company's receipt thereof, notice
of any default or event of default with respect to any material agreement to
which the Company or any Subsidiary is a party; (iv) within five (5) days of
the filing thereof, copies of all material filings made by or on behalf of
the Company or any Subsidiary with any governmental regulatory agency; and
(v) such other information as either AWS or JWC may reasonably request from
time to time.
(c) Within thirty (30) days after the end of each
calendar month, the Company will deliver to each of AWS and JWC monthly and
year-to-date summaries, in a form and to the same extent prepared by the
Company management on a consolidated basis broken down for each market in
which the Company or any Subsidiary operates any Cellular System or PCS
System compared on a monthly and year-to-date basis to the Company's Budget,
of the following: (a) number of POPs, (b) number of subscribers, (c) gross
activations, (d) net activations, (e) deactivations (and setting forth the
reason therefor), (f) acquisition cost per gross activation, (g) average
monthly revenue per subscriber, (h) total number of roaming minutes, (i)
total roaming revenue and (j) any other reasonable information which either
AWS or JWC may reasonably request from time to time.
5.4.4. FORMAT. All information and reports required to be
provided to AWS and JWC by this Section 5.4 may be provided to AWS and JWC in
the format such information and reports are provided to the financial
institutions which are parties to the Credit Agreement.
5.5 TERMINATION OF CERTAIN RIGHTS. In the event AWS and/or JWC is
no longer the Beneficial Owner of the Minimum Equity Ownership, the rights
set forth in Sections 5.3 and 5.4 shall terminate as to AWS and/or JWC, as
applicable.
ARTICLE 6.
EXCLUSIVITY
6.1 EXCLUSIVITY. Prior to the earlier of December 23, 2003 or the
date on which the relevant Stockholder Beneficially Owns less than 50% of the
Common Stock it Beneficially Owned as of September 17, 1999 on an "as-if
converted" basis, none of the Stockholders or their respective Affiliates will
provide or resell, or act as the agent for any Person offering, within the
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Territory, mobile wireless telecommunications services that compete with
those provided by the Company using wireless technologies and frequencies
licensed by the FCC without the Company's prior written consent. Nothing in
this Section 6.1 shall (i) prohibit JWC or its Affiliates from providing such
services in any part of the Territory in which the Company did not provide
such services at the time that JWC or its Affiliates initially began
providing them or (ii) restrict the ability of limited partners of any of JWC
or its Affiliates to invest in Persons engaged, directly or indirectly, in
the mobile wireless telecommunications industry. Anything to the contrary
herein, the terms of this Section 6.1 shall not apply to AWS and its
Affiliates (but nothing in this proviso shall relieve AWS's assigns and
transferees that are not Affiliates of AWS from the operation of this Section
6.1).
ARTICLE 7.
AFTER-ACQUIRED SHARES; RECAPITALIZATION
7.1 AFTER-ACQUIRED SHARES; RECAPITALIZATION.
(a) Except as expressly set forth herein, all of the
provisions of this Agreement shall apply to all of the shares of Company
Stock now owned or hereafter issued or transferred to a Stockholder or to
his, her or its Affiliated Successors as a consequence of any additional
issuance, conversion, purchase, exchange or reclassification of shares of
Company Stock, corporate reorganization, or any other form of
recapitalization, or consolidation, or merger, or share split, or share
dividend, or which are acquired by a Stockholder or its Affiliated Successors
in any other manner.
(b) Whenever the number of outstanding shares of Company Stock
is changed by reason of a stock dividend or a subdivision or combination of
shares effected by a reclassification of shares, each specified number of
shares referred to in this Agreement shall be adjusted accordingly.
ARTICLE 8.
SHARE CERTIFICATES
8.1 RESTRICTIVE ENDORSEMENTS; REPLACEMENT CERTIFICATES. (a) Each
certificate representing the shares of Company Stock now or hereafter held by
a Stockholder (including any such certificate delivered upon conversion of
the Preferred Stock) or delivered in substitution or exchange for any of the
foregoing certificates shall be stamped with legends in substantially the
following form:
The shares represented by this Certificate have been acquired for
investment and have not been registered under the Securities Act
of 1933, as amended (the
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"Act"), or under any state securities or "Blue Sky" laws. Said
securities may not be sold, transferred, assigned, hypothecated or
otherwise disposed of, unless and until registered under the Act and
the rules and regulations thereunder and all applicable state
securities or "Blue Sky" laws or exempted therefrom under the Act and
all applicable state securities or "Blue Sky" laws.
The shares represented by this Certificate are also subject to a
Stockholder and Investor Rights Agreement, a copy of which is on file
at the offices of the Company and will be furnished by the Company to
the holder hereof upon written request. Such Stockholder and Investor
Rights Agreement provides, among other things, for the granting of
certain restrictions on the sale, transfer, hypothecation or other
disposition of the shares represented by this Certificate. By
acceptance of this Certificate, each holder hereof agrees to be bound
by the provisions of such Stockholder and Investor Rights Agreement.
The Company reserves the rights to refuse to transfer the shares
represented by this Certificate unless and until the conditions to
transfer set forth in such Stockholder and Investor Rights Agreement
have been fulfilled.
Each Stockholder agrees that he, she or it will deliver all
certificates for shares of Company Stock owned by him, her or it to the
Company for the purpose of affixing such legends thereto.
(b) Upon receipt of evidence reasonably satisfactory to the
Company of the loss, theft, destruction or mutilation of any certificate
representing shares of Company Stock subject to this Agreement and of a bond
or other indemnity reasonably satisfactory to the Company, and upon
reimbursement to the Company of all reasonable expenses incident thereto, and
upon surrender of such certificate, if mutilated, the Company will make and
deliver a new certificate of like tenor in lieu of such lost, stolen,
destroyed or mutilated certificate.
ARTICLE 9.
MISCELLANEOUS
9.1 JWC GROUP STOCKHOLDER REPRESENTATIVE. (a) Each JWC Group
Stockholder hereby designates and irrevocably appoints Xxxx X. Xxxxxxxx, as
his Attorney-in-fact with full power of substitution (the "JWC Group
Stockholder Representative"), to serve as the representative of each such JWC
Group Stockholder to (i) perform all such acts as are required, authorized or
contemplated by this Agreement to be performed by such JWC Group Stockholder
and (ii) exercise such rights, power and authority as are incidental to this
Agreement and hereby acknowledges that the JWC Group Stockholder Representative
shall be the only person authorized to take any action so required, authorized
or contemplated by this Agreement by each such person. Any such actions
taken, exercises of rights, power or authority and any decision or
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determination made by the JWC Group Stockholder Representative consistent
therewith, shall be absolutely and irrevocably binding on each JWC Group
Stockholder as if such JWC Group Stockholder personally had taken such
action, exercised such rights, power or authority or made such decision or
determination in such Stockholder's individual capacity. Each such JWC Group
Stockholder further acknowledges that the foregoing appointment and designation
shall be deemed to be coupled with an interest and shall survive the death or
incapacity of such JWC Group Stockholder. The other parties hereto are and
will be entitled to rely on any action taken or any notice given by the JWC
Group Stockholder Representative and are and will be entitled and authorized
to give notices only to the JWC Group Stockholder Representative for any
notice contemplated by this Agreement to be given to any such person. A
successor to the JWC Group Stockholder Representative may be chosen by a
majority in interest of the JWC Group Stockholders, PROVIDED that notice
thereof is given by the new JWC Group Stockholder Representative to the
Company.
(b) The JWC Group Stockholder Representative shall not be
liable to the JWC Group Stockholders for the performance of any act or the
failure to act under or in connection with this Agreement so long as he acted
or failed to act in good faith in what he believed to be the scope of his
authority and for a purpose which he believed to be in the best interests of
the JWC Group Stockholders. Each of the JWC Group Stockholders will
indemnify the JWC Group Stockholder Representative, from and against any
loss, liability, damage, deficiency, cost and expense (including without
limitation reasonable expenses of investigation and reasonable Attorney's
fees incurred in connection with any claim, suit or proceeding brought
against him) incurred or sustained by him as a result of his individual acts
or omissions in connection with this Agreement, so long as he acted or failed
to act in good faith.
9.2 NOTICES. All notices or other communications hereunder shall
be in writing and shall be given (and shall be deemed to have been duly given
upon receipt) by delivery in person, by facsimile transmission, or by
registered or certified mail (return receipt requested), postage prepaid,
with an acknowledgment of receipt signed by the addressee or an authorized
representative thereof, addressed as follows (or to such other address for a
party as shall be specified by like notice; PROVIDED that notice of a change
of address shall be effective only upon receipt thereof:
If to JWC, to:
X. X. Childs Associates, L.P.
Xxx Xxxxxxx Xxxxxx
Xxxxxx-Xxxxx Xxxxx
Xxxxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Xxxx X. Xxxxxxxx
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With a copy to:
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
Xxx Xxxxxx Xxxxxx
Xxxxxx, XX 00000
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
Attention: Xxxxx Xxxxxxx, Esq.
If to AWS, to:
AT&T Wireless Services, Inc.
0000 000xx Xxx., X.X.
Xxxxxxx, XX 00000
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
Attention: Xxxxxxx X. Xxxxx
With a copy to:
AT&T Wireless Services, Inc.
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxx Xxxxx, Xxx Xxxxxx 00000
Facsimile:
Telephone: (000) 000-0000
Attention: General Counsel
With a copy to:
Xxxxxxxx Xxxxxx & Xxxxxx, LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxx, Esq.
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If to the Company, to it:
Xxxxxx Communications Corporation
00000 X. Xxxxxxxx Xxxxxxxxx
Xxxxx 000
Xxxxxxxx Xxxx, XX 00000
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxx, President
With a copy to the Company at the same address to:
Attention: Xxxxxx X. Xxxxxx, Senior Corporate Counsel
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
With a further copy to:
Xxxxxxx & Xxxxxx, LLP
0000 XxxxXxxxxx Xxxxx
Xxxxxxxxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Xxxxx X. Xxxxxxx, Esq.
9.3 ENTIRE AGREEMENT; AMENDMENTS; CONSENTS.
(a) This Agreement constitutes the entire agreement among the
parties with respect to the subject matter hereof and supersedes all other
prior agreements and understandings, both written and oral, among the parties
or any of them with respect to the subject matter hereof, including, without
limitation, the Existing Agreement.
(b) No change or modification of this Agreement shall be
valid, binding or enforceable unless the same shall be in writing and signed
by the Company, the Xxxxxx Partnership, and by each of JWC and AWS so long as
such party holds its Minimum Ownership Amount; PROVIDED, HOWEVER, that no
change or modification that adversely affects JWC or AWS shall be made
without the prior written consent of JWC or AWS, as the case may be; and
provided, further, that in the event any party hereto shall cease to own any
shares of Company Stock such party hereto shall cease to be a party to this
Agreement and, except as expressly provided herein, the rights and
obligations of such party hereunder shall terminate.
(c) Whenever in this Agreement the consent or approval of a
Stockholder is required, except as expressly provided herein, such consent or
approval may be given or withheld in the sole and absolute discretion of each
Stockholder.
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9.4 TERMINATION.
This Agreement shall terminate if all the parties hereto consent in
writing or if one Stockholder shall Beneficially Own all of the Common Stock;
provided, that (x) the termination of this Agreement shall not impair any
rights or obligations of any party hereto arising prior to the time of
termination, or which may arise by an event causing the termination of this
Agreement, (y) the provisions of Sections 5.1 and this Article 9 shall
survive any termination of this Agreement and (z) the provisions of Article 4
shall survive any termination of this Agreement and shall continue in full
force and effect until December 21, 2018.
9.5 WAIVER. No failure or delay on the part of any Stockholder in
exercising any right, power or privilege hereunder, nor any course of dealing
between the Company and any Stockholder shall operate as a waiver thereof nor
shall any single or partial exercise of any right, power or privilege
hereunder preclude the simultaneous or later exercise of any other right,
power or privilege. The rights and remedies herein expressly provided are
cumulative and not exclusive of any rights and remedies which any Stockholder
would otherwise have. No notice to or demand on the Company in any case shall
entitle the Company to any other or further notice or demand in similar or
other circumstances or constitute a waiver of the rights of the Stockholders
or any of them to take any other or further action in any circumstances
without notice or demand.
9.6 OBLIGATIONS SEVERAL. The obligations of each Stockholder under
this Agreement shall be several with respect to each such Stockholder.
9.7 GOVERNING LAW. This Agreement shall be governed and construed
in accordance with the law of the State of New York without reference to the
conflicts of law principles thereof.
9.8 DISPUTE RESOLUTION; WAIVER OF JURY TRIAL.
(a) The parties shall use and strictly adhere to the following
dispute resolution processes, except as otherwise expressly provided in this
Section 10.9, to resolve any and all disputes, controversies or claims,
whether based on contract, tort, statute, fraud, misrepresentation or any
other legal or equitable theory (hereinafter, "Dispute(s)"), arising out of
or relating to this Agreement (and any prior agreement this Agreement
supersedes), including without limitation, its making, termination,
non-renewal, its alleged breach and the subject matter of this Agreement
(E.G., products or services furnished hereunder or those related to those
furnished):
(b) The parties shall first attempt to settle each Dispute
through good faith negotiations. The aggrieved party shall initiate such
negotiations by giving the other party(ies) written notice of the existence
and nature of the Dispute. The other party(ies) shall in a writing to the
aggrieved party acknowledge such notice of Dispute within ten (10) business
days. Such acknowledgment may also set forth any Dispute that the
acknowledging party desires to have resolved in accordance with this Section.
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(c) Thereafter, if any Dispute is not resolved by the parties
through negotiation within thirty (30) calendar days of the date of the notice
of acknowledgment, either party may terminate informal negotiations with respect
to that Dispute and have the right, by delivery of written notice thereof (the
"Arbitration Notice") to the other party, to submit the matter to be finally
settled by arbitration in accordance with the Commercial Arbitration Rules then
in effect of the American Arbitration Association, as modified herein (the "AAA
Rules"). The place of arbitration shall be Oklahoma City, Oklahoma. All
matters so submitted to arbitration shall be settled by three arbitrators. The
disputing party and the Company shall each designate one arbitrator within 20
days of the delivery of the Arbitration Notice. If either the disputing party
or the Company fails so to timely designate an arbitrator, the matter shall be
resolved by the one arbitrator timely designated. The disputing party and the
Company shall cause the designated arbitrators to mutually agree upon and to
designate a third arbitrator, PROVIDED, HOWEVER, that failing such agreement
within 45 days of delivery of the Arbitration Notice, the third arbitrator shall
be appointed in accordance with the AAA Rules. The disputing party and the
Company, shall be responsible for the payment of the fees and expenses of their
respectively designated arbitrators and shall bear equally the fees and expenses
of the third arbitrator. The disputing party and the Company, shall cause the
arbitrators to decide the matter to be arbitrated pursuant hereto within 60 days
after the appointment of the last arbitrator. The arbitral tribunal is not
empowered to award damages in excess of compensatory damages and each party
hereby irrevocably waives any right to recover punitive, exemplary or similar
damages with respect to any Dispute. The final decision of the majority of the
arbitrators shall be furnished to the disputing party and the Company and each
of the Stockholders in writing and shall constitute a conclusive determination
of the matter in question, binding upon JWC, the Company and the Stockholders
and shall not be contested by any of them. Such decision may be used in a court
of law only for the purpose of seeking enforcement of the arbitrators' award.
Any arbitration proceeding, decision or award rendered hereunder and the
validity, effect and interpretation of this arbitration agreement shall be
governed by the Federal Arbitration Act, 9 U.S.C. Sections 1-16, and judgment
upon any award may be entered in any court of competent jurisdiction.
(d) EACH OF THE PARTIES HERETO, AFTER CONSULTING WITH COUNSEL
WAIVE THEIR RIGHTS, IF ANY, TO JURY TRIAL IN RESPECT TO ANY DISPUTE OR CLAIMS
BETWEEN OR AMONG THE PARTIES TO THIS AGREEMENT RELATING TO OR IN RESPECT OF THIS
AGREEMENT, ITS NEGOTIATION, EXECUTION, PERFORMANCE, SUBJECT MATTER, OR ANY
COURSE OF CONDUCT OR DEALING OR ACTIONS UNDER OR IN RESPECT OF THIS AGREEMENT,
INCLUDING, WITHOUT LIMITATION ANY CLAIM UNDER THE SECURITIES ACT, THE SECURITIES
EXCHANGE ACT OF 1934, AS AMENDED, ANY OTHER STATE OR FEDERAL LAW RELATING TO
SECURITIES OR FRAUD OR BOTH, THE RACKETEER INFLUENCED AND CORRUPT ORGANIZATIONS
ACT, AS AMENDED, OR FEDERAL OR STATE COMMON LAW.
9.9 BENEFIT AND BINDING EFFECT; SEVERABILITY. This Agreement shall be
binding upon and shall inure to the benefit of the Company, its successors and
assigns, and each of the
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Stockholders and their respective executors, administrators and personal
representatives and heirs and permitted assigns, and the Indemnified Parties.
If any term or other provision of this Agreement is invalid, illegal or
incapable of being enforced by any law or public policy or any listing
requirement applicable to the Common Stock, all other terms and provisions of
this Agreement shall nevertheless remain in full force and effect. Upon such
determination that any term or other provision is invalid, illegal or
incapable of being enforced, the parties hereto affected by such
determination in any material respect shall negotiate in good faith to modify
this Agreement so as to effect the original intent of the parties as closely
as possible in an acceptable manner in order that the provisions hereof are
given effect as originally contemplated to the greatest extent possible.
9.10 FCC AND REGULATORY APPROVALS. Notwithstanding anything contained
in this Agreement to the contrary, no transaction or action contemplated herein
shall be consummated and no interests or rights transferred, converted or
exchanged prior to receiving FCC approvals with respect thereto to the extent
such FCC approvals are necessary.
9.11 EXPENSES. Except as otherwise provided herein, all attorneys'
fees incurred by the Stockholders in connection with this Agreement (including,
without limitation, in the preparation of notices (and responses thereto) and
consents) shall be borne by the Stockholder(s) incurring such fees.
9.12 ATTORNEYS' FEES. In any action or proceeding brought to enforce
any provision of this Agreement, or where any provision hereof is validly
asserted as a defense, the successful party shall be entitled to recover
reasonable attorneys' fees in addition to any other available remedy.
9.13 HEADINGS. The captions in this Agreement are for convenience only
and shall not be considered a part of or affect the construction or
interpretation of any provision of this Agreement.
9.14 COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed to be an original, but all of which
together shall constitute one and the same instrument.
9.15 FCC CONFLICT. In the event of an FCC Conflict, the party whose
action or inaction gave rise to the FCC Conflict shall be required to take the
actions necessary so that the FCC Conflict no longer exists.
9.16 EFFECTIVE DATE. This Agreement shall be effective on the IPO
Date.
IN WITNESS WHEREOF, each of the parties has executed or caused this
Agreement to be executed by its duly authorized officers as of the date first
written above.
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STOCKHOLDERS:
XXXXXX XX LIMITED PARTNERSHIP
By: RLD, Inc., its General Partner
By: /s/ Xxxxxxx Xxxxxx
--------------------------------------
Name: Xxxxxxx Xxxxxx
Title: President
X.X. CHILDS EQUITY PARTNERS II, L.P.
By: X.X. Childs Advisors II, L.P.,
its general partner
By: X.X. Childs Associates, L.P.,
its general partner
By: X.X. Childs Associates, Inc.,
its general partner
By: /s/ Xxxx X. Xxxxxxxx
--------------------------------------
Name: Xxxx X. Xxxxxxxx
Title: Vice President
/s/ Xxxx X. Xxxxxxxx
---------------------------------------------
Xxxx X. Xxxxxxxx, as agent and Attorney-in-
fact for the JWC Group Stockholders under
Purchaser Appointment of Agent and Power of
Attorney and not in his individual capacity
AT&T WIRELESS SERVICES, INC.
By: /s/ Xxxxxxx Xxxxxxxx
--------------------------------------
Name: Xxxxxxx Xxxxxxxx
Title: Vice President and Assistant
Secretary
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COMPANY:
XXXXXX COMMUNICATIONS CORPORATION
By: /s/ Xxxxxxx Xxxxxx
--------------------------------------
Name: Xxxxxxx Xxxxxx
Title: CEO and Chairman
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Schedule I
STOCKHOLDERS:
Xxxxxx XX Limited Partnership
c/x Xxxxxx Communications Corporation
00000 X. Xxxxxxxx Xxxxxxxxx
Xxxxx 000
Xxxxxxxx Xxxx, XX 00000
Telephone: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxx
X.X. Childs Equity Partners II, L.P.
Xxx Xxxxxxx Xxxxxx
Xxxxxx-Xxxxx Xxxxx
Xxxxxx, XX 00000
Telephone: (000) 000-0000
Attention: Xxxx Xxxxxxxx
JWC Group Stockholders:
(See Attached sheet)
AT&T Wireless Services, Inc.
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxx Xxxxx, Xxx Xxxxxx 00000
Telephone: (000) 000-0000
Attention: General Counsel
COMPANY
Xxxxxx Communications Corporation
00000 X. Xxxxxxxx Xxxxxxxxx
Xxxxx 000
Xxxxxxxx Xxxx, XX 00000
Telephone: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxx
-00-
Xxxxxxxx XX
XXXXXXXXXXXXXX
-00-
Xxxxxxxx XXX
NEW DIRECTORS
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