Exhibit 10.2
SHARE CONVERSION AGREEMENT
This SHARE CONVERSION AGREEMENT (this "Agreement") is made and entered as
of this 23rd day of June, 2004, by and among (1) Xxxxx X. Xxxxxxxxx, Trustee of
the Unified Credit Trust of the Declaration of Trust for the Greenspun Family,
dated December 6, 1988 (the "Unified Credit Trust"), G.C. Investments, LLC
(f/k/a G.C. Investments, a Limited Liability Company), a Nevada limited
liability company ("G.C. Investments"), Greenspun Legacy Limited Partnership, a
Nevada limited partnership ("Greenspun Legacy"), and 3G Capital, LLC, a Nevada
limited liability company ("3G Capital," and collectively with the Unified
Credit Trust, G.C. Investments and Greenspun Legacy, the "Greenspun Parties"),
and (2) Xxx Communications, Inc., a Delaware corporation ("CCI"). Each of the
Greenspun Parties and CCI is sometimes referred to herein as a "Party," and all
of them, together, are sometimes referred to herein as the "Parties."
RECITALS
WHEREAS, the Greenspun Parties, collectively, own 4,836,372 shares of the
issued and outstanding Series A Convertible Preferred Stock of CCI, which shares
are represented by the certificates listed on Schedule 3.5 attached hereto (the
"Preferred Shares"); and
WHEREAS, pursuant to Section 5 of the Certificate of Designations of
Powers, Preferences and Rights of Series A Convertible Preferred Stock of Xxx
Communications, Inc., as filed on September 30, 1998, with the Office of the
Secretary of State of the State of Delaware (the "Series A Certificate"), the
Preferred Shares currently are convertible into shares of Class A Common Stock,
par value $1.00 per share, of CCI ("Cox Common Stock"); and
WHEREAS, this Agreement (1) constitutes a Conversion Election (as defined
in Section 5.2 of the Series A Certificate), (2) sets forth the agreement among
the Parties as to the Fair Market Value of Merger Sub (as defined in the Series
A Certificate) resulting from good faith negotiations among the Parties, as
contemplated by Section 8.1 of the Series A Certificate, and (3) sets forth the
agreement among the Parties on all of the other terms and conditions of the
conversion of the Preferred Shares under Sections 5 and 8 of the Series A
Certificate; and
WHEREAS, the Greenspun Parties desire to convert all of their Preferred
Shares into 11,212,121 shares of Cox Common Stock (the "Conversion Common
Shares"), upon the terms and subject to the conditions hereinafter set forth.
NOW THEREFORE, the Parties, intending to be bound hereby, agree as
follows:
ARTICLE 1
DEFINITIONS
Section 1.1 Definitions. (a) The following terms, as used herein, have the
following meanings:
"1933 Act" means the Securities Act of 1933, as amended, and the rules and
regulations promulgated thereunder.
"1934 Act" means the Securities Exchange Act of 1934, as amended, and the
rules and regulations promulgated thereunder.
"Affiliate" means, with respect to a Person other than a natural Person,
any other Person that, either directly or indirectly through one or more
intermediaries, Controls, is Controlled by or is under common Control with such
Person and, with respect to any natural person, any of the natural Person's
immediate family members or any trust benefiting such natural Person and/or any
of such natural Person's immediate family members in which such natural person
is the sole trustee thereof. "Immediate family member" means an individual's
spouse, children (including adopted children), grandchildren, parents,
grandparents and siblings.
"Communications Act Restrictions" means the restrictions on transfer to
certain non-United States Persons pursuant to the Communications Act of 1934, as
amended, and the rules and regulations of the Federal Communications Commission
promulgated thereunder.
"Control" when used with respect to any Person means the power to direct
the management and policies of such Person, directly or indirectly, whether
through the ownership of voting securities, by contract, or otherwise.
"Controlling" and "Controlled" shall have the meanings correlative to the
foregoing.
"DTC" means Depository Trust Company.
"First Offer Agreement" means that certain First Offer Agreement, dated as
of October 1, 1998, by and among CCI, G.C. Investments and the Unified Credit
Trust, as amended to date.
"Lien" means, with respect to any property or asset, any mortgage, lien,
pledge, charge, security interest, encumbrance or other adverse claim of any
kind in respect thereof or any other limitation or restriction with respect
thereto, including, without limitation, in the case of any securities, any
restriction on the right to vote, sell or otherwise dispose thereof.
"Majority Greenspun Holders" means Greenspun Parties or their permitted
assignees holding a majority of the Conversion Common Shares held by all of the
Greenspun Parties and their permitted assignees based on the aggregate number of
Conversion Common Shares held by the Greenspun Parties at the date of such
determination.
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"Permitted Encumbrances" means any restrictions on transfer of capital
stock imposed by applicable securities or blue sky laws, and the Communications
Act of 1934, as currently in effect and the rules and regulations of the Federal
Communications Commission thereunder.
"Person" means an individual, corporation, partnership, limited liability
company, association, trust or other entity or organization, including a
government or political subdivision or an agency or instrumentality thereof.
(b) Each of the following terms is defined in the Section set forth
opposite such term:
Terms Section
----- -------
3G Capital Preamble
Agreement Preamble
Book-Entry Notice Section 2.1(c)
CCI Preamble
Closing Section 2.1
Conversion Common Shares Recitals
Cox Common Stock Recitals
Damages Section 5.2
Form 10-K Section 3.7(b)
Form 10-Q Section 3.7(b)
G.C. Investments Preamble
Greenspun Legacy Preamble
Greenspun Parties Preamble
Indemnified Party Section 5.3
Indemnifying Party Section 5.1
Notice Section 6.1
Party(ies) Preamble
Preferred Shares Recitals
Series A Certificate Recitals
Unified Credit Trust Preamble
Warranty Breach Section 5.2
ARTICLE 2
CONVERSION; CLOSING; AND DELIVERIES
Section 2.1 Conversion; and Closing. The closing (the "Closing") of the
conversion of the Preferred Shares into the Conversion Common Shares shall take
place at the offices of the Greenspun Corporation in Las Vegas, Nevada, on the
date hereof, which shall be the Conversion Date (as defined in the Series A
Certificate), and at Closing:
(a) All of the issued and outstanding Preferred Shares shall be
converted into the Conversion Common Shares.
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(b) Upon the terms and subject to the conditions of this
Agreement, the Greenspun Parties agree to deliver to CCI, and CCI agrees to
accept from the Greenspun Parties, the Preferred Shares. The Preferred Shares
shall be delivered against delivery of the Conversion Common Shares as
contemplated by Section 5.5(a) of the Series A Certificate.
(c) Upon the terms and subject to the conditions of this
Agreement, CCI shall deliver to the Greenspun Parties, and the Greenspun Parties
shall accept from CCI, the Conversion Common Shares. The Conversion Common
Shares shall be delivered in book-entry form through DTC to the account(s)
specified in book-entry delivery instructions delivered in writing at least two
(2) business days prior to Closing ("Book-Entry Notice"). The Book-Entry Notice
must include the DTC participant number of the U.S. registered broker-dealer to
receive the Conversion Common Shares, the account number(s) to receive the
Conversion Common Shares, the account name(s), an undertaking to instruct such
broker-dealer to initiate a DWAC transfer of the Conversion Common Shares at
least one (1) business day before Closing, the number of Conversion Common
Shares to be issued to each Greenspun Party, the address for each Greenspun
Party and the tax identification number for each Greenspun Party.
(d) In accordance with Section 5.5(d) of the Series A Certificate,
all rights with respect to the Preferred Shares shall terminate, including,
without limitation, any and all liquidation rights, except for the right to
receive the Conversion Common Shares, and all certificates for Preferred Shares
shall be deemed to be retired and canceled.
Section 2.2 Deliveries at Closing. At Closing, the Parties shall deliver
(or cause to be delivered) the following items to each other:
(a) As contemplated by Section 5.5(a) of the Series A Certificate,
the Greenspun Parties shall deliver to CCI all certificates representing the
Preferred Shares duly endorsed, with any required transfer stamps affixed
thereto.
(b) CCI shall deliver the Conversion Common Shares in accordance
with the Book Entry Notice with any transfer taxes payable in connection with
the issuance of the Conversion Common Shares to the Greenspun Parties duly paid
by CCI to the appropriate governmental authority prior to or contemporaneously
with the Closing. CCI shall receive an opinion of counsel from legal counsel to
the Greenspun Parties, dated as of the date of the Closing, relating to the
existence of each of the Greenspun Parties and the authority of each of the
Greenspun Parties to consummate the transactions contemplated by this Agreement,
in form and substance reasonably satisfactory to CCI.
(c) The Greenspun Parties shall receive an opinion of counsel from
legal counsel to CCI, dated as of the date of the Closing, relating to the
existence of CCI and the authority of CCI to consummate the transactions
contemplated by this Agreement, in form and substance reasonably satisfactory to
the Greenspun Parties.
(d) The parties hereto acknowledge that the First Offer Agreement
shall terminate as of Closing, as provided in Section 7(i) thereof.
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ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF THE GREENSPUN PARTIES
Each of the Greenspun Parties, jointly and severally, represents and
warrants to CCI as of the date of the Closing as follows:
Section 3.1 Existence and Power. Each of the Greenspun Parties is an
entity duly formed, validly existing and in good standing under the laws of its
jurisdiction of formation, and each of the Greenspun Parties has all requisite
power and authority to execute and deliver this Agreement and all of the other
agreements, documents, instruments and certificates contemplated by, and
executed and delivered by it, pursuant to this Agreement, and to perform his/its
obligations hereunder. For purposes of this Agreement, each of the Greenspun
Parties is located or domiciled, as the case may be, within the State of Nevada.
Section 3.2 Authorization. The execution, delivery and performance by each
of the Greenspun Parties of this Agreement and the consummation of the
transactions contemplated hereby are within each of the Greenspun Parties'
respective powers and have been duly authorized by all necessary action on the
part of each of the Greenspun Parties. This Agreement is a valid and binding
agreement of each of the Greenspun Parties, enforceable against each of the
Greenspun Parties in accordance with its terms, except as the same may be
limited by applicable bankruptcy, insolvency, reorganization, moratorium or
similar laws now or hereafter in effect affecting generally the enforcement of
creditors' rights and remedies and general principles of equity, including
limitations on the availability of the remedy of specific performance or
injunctive relief, regardless of whether specific performance or injunctive
relief is sought in a proceeding at law or in equity.
Section 3.3 Governmental Authorization. The execution, delivery and
performance by each of the Greenspun Parties of this Agreement and the
consummation of the transactions contemplated hereby require no action by or in
respect of, or filing with, any governmental body, agency or official.
Section 3.4 Noncontravention. The execution and delivery by each of the
Greenspun Parties of, and the performance by each of the Greenspun Parties of
their respective obligations under, this Agreement will not contravene any
provision of applicable law or the organizational documents of any of the
Greenspun Parties, or any agreement or other instrument binding upon any
Greenspun Party that is material to such Greenspun Party, taken as a whole, or
any judgment, order or decree of any governmental body, agency or court having
jurisdiction over any Greenspun Party, and no consent, approval, authorization
or order of, or qualification with, any governmental body or agency is required
for the performance by any Greenspun Party of its obligations under this
Agreement.
Section 3.5 Ownership of Preferred Shares. Each of the Greenspun Parties
is the sole record and beneficial owner of the Preferred Shares listed on
Schedule 3.5, free and clear of any Lien (other than Permitted Encumbrances and
the right of first refusal set forth in Section 4 of the First Offer Agreement),
and will transfer and deliver to CCI at the Closing valid title to the Preferred
Shares, free and clear of any Lien (other than Permitted Encumbrances and the
right of
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first refusal set forth in Section 4 of the First Offer Agreement). The
Greenspun Parties, collectively, hold (a) all of the Preferred Shares issued to
the Greenspun Parties and their Affiliates on October 1, 1998, and (b) all of
the Preferred Shares issued to the Greenspun Parties and their Affiliates in
connection with the two-for-one stock split, which was effective on May 21,
1999.
Section 3.6 Litigation. There is no action, suit, investigation or
proceeding in progress or pending, or to the knowledge of any Greenspun Party,
threatened that in any manner challenges or seeks to prevent, enjoin, alter or
materially delay the transactions contemplated by this Agreement.
Section 3.7 Investment Representations. The Conversion Common Shares are
being acquired for the Greenspun Parties' own accounts and without a current
view or arrangement (oral or written) with respect to any public distribution of
such Conversion Common Shares that would require a registration statement. Each
of the Greenspun Parties has received and reviewed a copy of CCI's Form 10-K for
the fiscal year ended December 31, 2003 (the "Form 10-K"), Form 10-Q for the
quarter ended March 31, 2004 (the "Form 10-Q") and the current report on Form
8-K dated June 4, 2004 and filed June 9, 2004. Each Greenspun Party is an
"accredited investor" within the meaning of Rule 501(a) of Regulation D under
the 1933 Act and has knowledge and experience in business and financial matters
and is capable of evaluating the merits and risks of any investment in CCI. Each
Greenspun Party has had an adequate opportunity to ask questions and receive
answers (and has asked such questions and received answers to his/its
satisfaction) from the officers of CCI concerning the business, operations and
financial condition of CCI and other recent developments discussed between the
Parties. Each Greenspun Party can bear the economic risk of an investment in the
shares of Cox Common Stock and can afford a complete loss of such investment.
ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF CCI
CCI represents and warrants to each of the Greenspun Parties as of the
date of the Closing as follows:
Section 4.1 Existence and Power. CCI has been duly incorporated, is
validly existing as a corporation in good standing under the laws of the State
of Delaware, has the corporate power and authority to own and operate its
properties and to conduct its business as currently conducted and is duly
qualified to transact business and is in good standing in each jurisdiction in
which the conduct of its business or its ownership or leasing of property
requires such qualification, except to the extent that the failure to be so
qualified or be in good standing would not have a material adverse effect on CCI
and its subsidiaries, taken as a whole. CCI has all requisite corporate power
and authority to execute and deliver this Agreement and all of the other
agreements, documents, instruments and certificates contemplated by, and
executed and delivered by it, pursuant to this Agreement, and to perform its
obligations hereunder.
Section 4.2 Authorization. The execution, delivery and performance by CCI
of this Agreement and the consummation of the transactions contemplated hereby
are within CCI's
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corporate powers and have been duly authorized by all necessary corporate action
on the part of CCI. This Agreement is a valid and binding agreement of CCI,
enforceable against CCI in accordance with its terms, except as the same may be
limited by applicable bankruptcy, insolvency, reorganization, moratorium or
similar laws now or hereafter in effect affecting generally the enforcement of
creditors' rights and remedies and general principles of equity, including
limitations on the availability of the remedy of specific performance or
injunctive relief, regardless of whether specific performance or injunctive
relief is sought in a proceeding at law or in equity.
Section 4.3 Governmental Authorization. The execution, delivery and
performance by CCI of this Agreement and the consummation of the transactions
contemplated hereby require no action by or in respect of, or filing with, any
governmental body, agency or official. Assuming the accuracy of the
representations and warranties of the Greenspun Parties contained in Section 3.7
hereof, the issuance of the Conversion Common Shares will be exempt from the
registration requirements of the 1933 Act, and will be exempt from registration
and qualification under the registration, permit or qualification requirements
of the State of Nevada.
Section 4.4 Share Authorization; Ownership.
(a) The Conversion Common Shares have been duly authorized and,
when issued and delivered in accordance with the terms of this Agreement, will
be validly issued, fully paid and non-assessable, and the issuance of such
Conversion Common Shares will not be subject to any preemptive or similar
rights.
(b) CCI will transfer and deliver to the Greenspun Parties at the
Closing valid title to the Conversion Common Shares free and clear of any Lien
or any other limitation or restriction; provided, that no representation or
warranty is made with respect to any Lien or other restriction on the Conversion
Common Shares as a result of any action taken, or contract entered into, by a
Greenspun Party.
(c) There will be no notations (other than the Communications Act
Restrictions) in connection with such Conversion Common Shares or in connection
with the account(s) specified in the Book Entry Notice.
(d) The Conversion Common Shares will be freely tradable, in their
entirety, on and as of the date of the Closing; provided that no representation
or warranty is made with respect to any restriction on the Conversion Common
Shares as a result of any action of, contract by, or status of a Greenspun
Party.
Section 4.5 Noncontravention. The execution and delivery by CCI of, and
the performance by CCI of its obligations under, this Agreement will not
contravene any provision of applicable law or the certificate of incorporation
or by-laws of CCI or any agreement or other instrument binding upon CCI or any
of its subsidiaries that is material to CCI and its subsidiaries, taken as a
whole, or any judgment, order or decree of any governmental body, agency or
court having jurisdiction over CCI or any subsidiary, and no consent, approval,
authorization or order of, or qualification with, any governmental body or
agency is required for the performance by CCI of its obligations under this
Agreement.
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Section 4.6 Litigation. There is no action, suit, investigation or
proceeding in progress or pending, or to the knowledge of CCI, threatened which
in any manner challenges or seeks to prevent, enjoin, alter or materially delay
the transactions contemplated by this Agreement.
Section 4.7 Disclosure. The Form 10-K, at the time it was filed with the
Securities and Exchange Commission, complied in all material respects with the
1934 Act and has not been amended since the filing date of the Form 10-K. The
Form 10-Q, at the time it was filed with the Securities and Exchange Commission,
complied in all material respects with the 1934 Act and has not been amended
since the filing date of the Form 10-Q. As of the date of this Agreement, and
except for recent developments discussed between the Parties, including interim
financial information, to the knowledge of CCI, the Form 10-K, as supplemented
by the Form 10-Q and the current report on Form 8-K dated June 4, 2004 and filed
June 9, 2004, does not contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading in light of the circumstances under which they
were made.
ARTICLE 5
SURVIVAL; INDEMNIFICATION
Section 5.1 Survival. The covenants, agreements, representations and
warranties of the Parties contained in this Agreement or in any certificate or
other writing delivered pursuant hereto or in connection herewith shall survive
the Closing until the second anniversary of the date of the Closing; provided,
that the representations and warranties contained in Sections 3.2, 3.5, 3.7,
4.2, 4.4 and 4.5 shall survive in perpetuity and shall inure to the benefit of
permitted transferees and assignees of the Parties who are Affiliates of the
Parties. Notwithstanding the preceding sentence, any covenant, agreement,
representation or warranty in respect of which indemnity may be sought under
this Agreement shall survive until the termination pursuant to the preceding
sentence, if Notice of the inaccuracy or breach thereof giving rise to such
right of indemnity shall have been given to the Party against whom such
indemnity may be sought (the "Indemnifying Party") prior to such time.
Section 5.2 Indemnification. (a) CCI hereby indemnifies the Greenspun
Parties against, and agrees to hold each of them harmless from, any and all
damage, loss, liability and expense (including, without limitation, reasonable
expenses of investigation and reasonable attorneys' fees and expenses in
connection with any action, suit or proceeding) ("Damages") incurred or suffered
by any Greenspun Party or any of its Affiliates arising out of any
misrepresentation or breach of warranty (each such misrepresentation and breach
of warranty, a "Warranty Breach") or breach of covenant or agreement made or to
be performed by CCI pursuant to this Agreement.
(b) The Greenspun Parties, severally and not jointly, hereby
indemnify CCI and its Affiliates against, and agree to hold each of them
harmless from, any and all Damages incurred or suffered by CCI or any of its
Affiliates arising out of any Warranty Breach or breach of covenant or agreement
made or to be performed by any of the Greenspun Parties pursuant to this
Agreement.
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Section 5.3 Procedures. The Party seeking indemnification under Section
5.2 (the "Indemnified Party") agrees to give prompt notice to the Indemnifying
Party of the assertion of any claim, or the commencement of any suit, action or
proceeding in respect of which indemnity may be sought under Section 5.2 and
will provide the Indemnifying Party such information with respect thereto that
the Indemnifying Party may reasonably request. The Indemnifying Party may at the
request of the Indemnified Party participate in and control the defense of any
such suit, action or proceeding at its own expense if the Indemnifying Party
acknowledges its potential liability to the Indemnified Party in a written
Notice.
ARTICLE 6
MISCELLANEOUS
Section 6.1 Notices. All notices, requests and other communications (each
a "Notice") to any Party hereunder shall be in writing, signed by the Party
sending the Notice (including a facsimile transmission, and shall be given:
if to the Greenspun Parties, to:
The Greenspun Corporation
000 Xxxxx Xxxxx Xxxxxx Xxxxxxx, Xxxxx 000
Xxxxxxxxx, Xxxxxx 00000
Attention: Xxxxx X. Xxxxxxxxx
Telephone: (000) 000-0000
Fax: (000) 000-0000
with a copy to:
Xxxxxxxxxx Xxxxx & Xxxxxx, P.C.
000 00xx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx Xxxxxxxxxx, Esq.
Telephone: (000) 000-0000
Fax: (000) 000-0000
if to CCI, to:
Xxx Communications, Inc.
0000 Xxxx Xxxxx Xxxxx
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxx X. Xxxx
Telephone: (000) 000-0000
Fax: (000) 000-0000
and
Xxx Communications, Inc.
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0000 Xxxx Xxxxx Xxxxx
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxx X. Xxxxxxx, Esq., General Counsel
Telephone: (000) 000-0000
Fax: (000) 000-0000
Fax: (000) 000-0000
with a copy to:
Dow, Xxxxxx & Xxxxxxxxx
0000 Xxx Xxxxxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxx, Esq.
Telephone: (000) 000-0000
Fax: (000) 000-0000
Any Notice required or permitted by this Agreement shall be deemed given
upon receipt, when delivered personally or by overnight courier or by facsimile
(with acknowledgement of receipt), or 48 hours after being deposited in the U.S.
mail, as certified or registered mail, with postage prepaid, addressed to the
Party to be notified at such Party's address as set forth above. Failure to
deliver a copy of a Notice given to CCI to Dow, Xxxxxx & Xxxxxxxxx, PLLC, shall
not invalidate the Notice given to CCI, and failure to deliver a copy of a
Notice given to the Greenspun Parties to Xxxxxxxxxx Hyatt & Xxxxxx, P.C., shall
not invalidate the Notice given to the Greenspun Parties.
Section 6.2 Amendments and Waivers. (a) Any provision of this Agreement
may be amended if, but only if, such amendment is in writing and is signed by
CCI and the Majority Greenspun Holders. Any provision of this Agreement may be
waived if, but only if, such waiver is in writing and is signed by CCI (if the
waiver is to be effective against CCI) and by the Majority Greenspun Holders (if
the waiver is to be effective against the Greenspun Parties). Any amendment or
waiver signed by the Majority Greenspun Holders shall be binding on all of the
Greenspun Parties, including the Greenspun Parties that did not sign such
amendment or waiver.
(b) No failure or delay by any Party in exercising any right,
power or privilege hereunder shall operate as a waiver thereof nor shall any
single or partial exercise thereof preclude any other or further exercise
thereof or the exercise of any other right, power or privilege. The rights and
remedies herein provided shall be cumulative and not exclusive of any rights or
remedies provided by law.
Section 6.3 Expenses. Except as otherwise provided in Section 5 above, all
costs and expenses incurred in connection with this Agreement shall be paid by
the Party incurring such cost or expense.
Section 6.4 Successors and Assigns. The provisions of this Agreement shall
be binding upon and inure to the benefit of the Parties hereto and their
respective successors and assigns; provided, that no Greenspun Party may assign,
delegate or otherwise transfer any of its rights or obligations under this
Agreement without the consent of CCI, and CCI may not assign,
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delegate or otherwise transfer any of its rights or obligations under this
Agreement without the consent of the Majority Greenspun Holders.
Section 6.5 Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Delaware, without regard
to the conflicts of law rules of such State.
Section 6.6 Counterparts; No Third Party Beneficiaries. This Agreement may
be signed in any number of counterparts, each of which shall be an original,
with the same effect as if the signatures thereto and hereto were upon the same
instrument. This Agreement is not intended to confer any rights or remedies
hereunder upon, and shall not be enforceable by, any Person other than the
Parties hereto and their respective permitted successors and assigns.
Section 6.7 Public Announcements. Except for any press releases and public
statements the making of which may be required by applicable law or any listing
agreement with any national securities exchange (it being understood by the
Parties that CCI shall promptly file a current report on Form 8-K reporting
conversion of the Preferred Shares), the Parties agree to consult with each
other before issuing any press release or making any public statement with
respect to this Agreement or the transactions contemplated hereby and will not
issue any such press release or make any such public statement prior to such
consultation.
Section 6.8 Construction. Whenever the context requires, the gender of all
words used in this Agreement includes the masculine, feminine and neuter.
Section 6.9 Captions. The captions herein are included for convenience of
reference only and shall be ignored in the construction or interpretation
hereof.
Section 6.10 Complete Agreement. This Agreement constitutes the entire
agreement among the Parties hereto pertaining to the subject matter hereof and
supersedes all prior agreements and understandings of the Parties in connection
herewith, and no covenant, representation or condition not expressed in this
Agreement shall affect, or be effective to interpret, change or restrict, the
express provisions of this Agreement.
Section 6.11 Severability. If any term or other provision of this
Agreement is invalid, illegal or incapable of being enforced by any rule of law,
or public policy, all other terms, conditions and provisions of this Agreement
shall nevertheless remain in full force and effect so long as the economic or
legal substance of the matters contemplated hereby is not affected in any manner
adverse to any Party. Upon such determination that any term or provision is
invalid, illegal or incapable of being enforced, the Parties 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 to each Party in his/its
discretion.
[Signature page follows]
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IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to
be duly executed as of this 23rd day of June, 2004.
XXXXX X. XXXXXXXXX, TRUSTEE OF
THE UNIFIED CREDIT TRUST OF THE
DECLARATION OF TRUST FOR THE
GREENSPUN FAMILY, DATED
DECEMBER 6, 1988
By: /s/ Xxxxx Xxx Xxxxxxxxx
-----------------------------------
Name: Xxxxx Xxx Xxxxxxxxx
Title: Trustee
G.C. INVESTMENTS, LLC (F/K/A G.C
INVESTMENTS, A LIMITED LIABILITY
COMPANY)
By: /s/ Xxxxx Xxx Xxxxxxxxx
-----------------------------------
Name: Xxxxx Xxx Xxxxxxxxx
Title: Manager
GREENSPUN LEGACY
LIMITED PARTNERSHIP
By: /s/ Xxxxx Xxx Xxxxxxxxx
-----------------------------------
Name: Xxxxx Xxx Xxxxxxxxx
Title: Manager of G.C. Investments, LLC,
General Partner of Greenspun
Legacy Limited Partnership
3G CAPITAL, LLC
By: /s/ Xxxxx Xxx Xxxxxxxxx
------------------------------------
Name: Xxxxx Xxx Xxxxxxxxx
Title: Manager
XXX COMMUNICATIONS, INC.
By: /s/ Xxxx X. Xxxx
------------------------------------
Name: Xxxx X. Xxxx
Title: Senior Vice President
SIGNATURE PAGE TO SHARE CONVERSION AGREEMENT
SCHEDULE 3.5
PREFERRED SHARES
STOCK NO. OF
CERT. NO. SHARES ISSUED TO
3 38,865 Unified Credit Trust
6 38,865 Unified Credit Trust
7 1,382,290 Greenspun Legacy Limited Partnership
8 1,502,755 G.C. Investments, LLC
9 628,931 3G Capital, LLC
10 1,244,666 G.C. Investments, LLC
4,836,372
