EXHIBIT 10.4
RIGHT IN THE EVENT OF A CHANGE OF CONTROL
THIS RIGHT IN THE EVENT OF A CHANGE OF CONTROL (this "RIGHT
AGREEMENT") is issued to The Xxxxx Group, Inc., a New Jersey corporation
("TFG"), by EqualNet Holding Corp., a Texas corporation ("EQUALNET"), as of
February 11, 1997.
WHEREAS, TFG has previously provided and continues to provide
(pending and subject to execution of a written agreement between TFG and the
Company) to EqualNet and its subsidiaries (collectively, the "COMPANY")
telecommunications services through the Sprint Corp. network at TFG's cost;
WHEREAS, EqualNet acknowledges that such provision has substantial
value to the Company and provides risk without compensation to TFG; and
WHEREAS, TFG and EqualNet have entered into a non-binding letter of
intent to pursue a combination of TFG and EqualNet and to pursue jointly a
telecommunications services arrangement with AT&T Corp. at more favorable rates
than currently realized by the Company;
NOW THEREFORE, for good and valuable consideration, the parties,
intending to be legally bound, hereby agree as follows:
1. CERTAIN DEFINED TERMS.
"COMMON STOCK" means common stock, par value $.01 per share, of
EqualNet as presently constituted and any stock or other securities issued in
addition to or in substitution therefor upon any reclassification or
recapitalization.
"EQUALNET TRANSACTION" means the consummation of any event or series
of events that results in (1) EqualNet's consolidation with, or merger with or
into, any other Person (other than TFG, any shareholder of TFG or any affiliate
of TFG) if in connection with such consolidation or merger, all or part of the
Common Stock shall be changed into or exchanged for stock or other securities of
any other Person or cash or any other property or (2) EqualNet selling or
otherwise transferring (or one or more of its Subsidiaries selling or otherwise
transferring) to a Person or Persons (other than TFG, any shareholder of TFG or
any affiliate of TFG), in one transaction or a series of related transactions,
assets that constitute 50% or more of the assets of the Company or assets that
provide or previously provided 50% or more of the consolidated revenues of the
Company received in connection with the provision of telecommunications
services.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as
amended.
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"FAIR MARKET VALUE" means the fair market value of the property in
question. In calculating the Fair Market Value, no discount shall be made for
lack of control, lack of an active trading market, or any restrictions on
transferability. Fair Market Value initially shall be determined in good faith
by the Board of Directors of EqualNet, provided however, that if TFG objects to
any determination of Fair Market Value made by such Board, the Fair Market Value
shall be determined by an investment banking firm of national repute selected by
TFG from a list of five such investment banking firms which shall be submitted
to TFG by EqualNet within five business days after EqualNet has received notice
that Fair Market Value shall be so determined, or, if EqualNet fails to furnish
such a list, an investment banking firm selected by TFG in its sole discretion.
"PERSON" means any individual, firm, corporation, partnership or
other entity.
"RIGHT" is defined in Section 1.
"RIGHT PAYMENT" means an amount equal to 11.5% of the Fair Market
Value of the Transaction Consideration, such amount to be paid in cash or, at
the option of EqualNet, in the same proportion of cash, securities or other
property paid to any holders of Common Stock, EqualNet or its Subsidiaries, as
the case may be.
"RIGHT PERIOD" means two years from the date hereof.
"SUBSIDIARY" has the meaning ascribed to such term in Rule 12b-2 of
the General Rules and Regulations under the Exchange Act.
"TFG TELECOMMUNICATION BUSINESS" means TFG's contractual rights and
obligations with its underlying long-distance telecommunications services
providers.
"TFG TERMINATION EVENT" means (1) the acquisition by any Person or
"group" of beneficial ownership (as such terms are used in Section 13(d) of the
Exchange Act) of shares of capital stock of TFG representing 50% or more of the
total voting power of all capital stock of TFG issued and outstanding, (2) TFG's
consolidation with, or merger with or into, any Person (other than an affiliate
of TFG) if in connection with such consolidation or merger, all or part of the
capital stock of TFG shall be converted into or exchanged for stock or other
securities of any other Person or cash or any other property, or (3) the failure
of TFG or any of its current shareholders or any group of its current
shareholders or members of their respective families to own at least a 50%
interest in the TFG Telecommunication Business, provided that if TFG and
EqualNet have jointly entered into a contract for long-distance services
ultimately provided by AT&T Corp. prior to such failure, at the time of such
failure, EqualNet shall elect by written notice to TFG either not to treat such
failure as a TFG Termination Event or to pay to TFG a surcharge equal to 7% of
each month's above the network and non-network usage fees charged by the
underlying carrier for any and all carrier services for EqualNet traffic either
provided under TFG contracts or in joint contracts for such services with TFG.
Notwithstanding the
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provisions hereof, if an event that would, but for this sentence, constitute a
TFG Termination Event occurs, and during the Right Period the same Person or
group that engaged in such Event, or such Person or group's successors or
affiliates, completes an EqualNet Transaction with EqualNet, such event shall
not constitute a TFG Termination Event.
"TRANSACTION CONSIDERATION" means: (1) in the case of clause (1) of
the definition of EqualNet Transaction, the amount delivered and/or deliverable
to the holder of one share of Common Stock multiplied by the number of shares of
Common Stock outstanding and (2) in the case of clause (2) of the definition of
EqualNet Transaction, the amount received by EqualNet or its Subsidiaries in
consideration for such assets.
2. GRANT OF RIGHT. EqualNet hereby grants to TFG the right ("RIGHT")
to receive, and agrees to make, the Right Payment upon the consummation of an
EqualNet Transaction.
3. TERM OF RIGHT. The Right terminates immediately upon the earliest
to occur of (1) the expiration of the Right Period, (2) the date on which
EqualNet acquires all the issued and outstanding capital stock of TFG or all or
substantially of the assets of the telecommunications business of TFG, and (3) a
TFG Termination Event.
4. EQUALNET COVENANT. EqualNet shall not consummate, nor shall it
permit any of its Subsidiaries to consummate an EqualNet Transaction with any
Person or Persons, unless such Person or Persons agree to assume EqualNet's
obligations under this Right Agreement to make the Right Payment to TFG upon
consummation of such EqualNet Transaction.
5. REPRESENTATIONS AND WARRANTIES OF EQUALNET. EqualNet hereby
represents and warrants to TFG that this Right has been duly authorized
(including, without limitation, by approval of its board of directors) and
executed by it and constitutes its valid and legally binding obligation,
enforceable in accordance with its terms.
6. GOVERNING LAW; ETC.. THIS RIGHT AGREEMENT SHALL BE GOVERNED BY,
AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK
WITHOUT REFERENCE TO ITS CHOICE OF LAW RULES. All payments and deliveries of
securities or other property required or permitted hereunder shall be made and
delivered by EqualNet to TFG's agent in New York City, New York, in accordance
with written instructions delivered by TFG to EqualNet. With respect to any
suit, action or proceeding related to this Right Agreement, each of the parties
hereto hereby irrevocably consents and submits to the exclusive jurisdiction of
the United States District Court located in the Borough of Manhattan in New York
City, New York, if a basis for federal court jurisdiction is present, and,
otherwise, of the state courts of the State of New York; provided that
notwithstanding the foregoing, TFG may bring any suit action or proceeding
arising out of or relating to this Right Agreement in the courts of any place
where TFG can establish jurisdiction
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over EqualNet. Each of the parties hereto irrevocably consents to service of
process out of the aforementioned courts and waives any objection which it may
now or hereafter have to the laying of venue of any action or proceeding arising
out of or in connection with this Right Agreement brought in the aforementioned
courts and hereby further irrevocably waives and agrees not to plead or claim in
such courts that any such action or proceeding brought in such courts has been
brought in an inconvenient forum.
7. NO TRANSFERABILITY. This Right Agreement, the Right and the Right
Payment are not transferrable by TFG except that TGF's rights hereunder may be
treansferred, in whole or in part, to the current shareholders of Xxxxx and
their respective families.
8. COUNTERPARTS. This Right Agreement may be executed in any number
of counterparts, all of which taken together shall constitute one and the same
instrument, and either of the parties hereto may execute this Right by signing
any such counterpart.
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IN WITNESS WHEREOF, the parties hereto, intending to be legally
bound, have caused this Agreement to be executed by their respective duly
authorized officers, as of the date first above written.
EQUALNET HOLDING CORP.
By:SIG. ILLEGIBLE
President
THE XXXXX GROUP, INC.
By:SIG. ILLEGIBLE
Executive Vice President
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