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EXHIBIT 99.5
AMENDED AND RESTATED STOCKHOLDERS' AGREEMENT
OF
TELEPORT COMMUNICATIONS GROUP INC.
June 26, 1996
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TABLE OF CONTENTS
Page
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SECTION 1 DEFINITIONS AND OTHER GENERAL MATTERS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.1 Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.2 Cross References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
1.3 Terms Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
1.4 Voting; Written Consent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
SECTION 2 BOARD OF DIRECTORS AND STOCKHOLDERS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
2.1 Composition of the Board . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
2.2 Removal of Directors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
2.3 Vacancies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
2.4 Conflicting Charter or By-law Provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
SECTION 3 TRANSFERS AND CONVERSIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
3.1 Restrictions on Transfer and Conversion . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
3.2 Legend . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
3.3 Exceptions to Restrictions on Transfers . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
3.4 Conversion of Class B Common Stock to Class A Common Stock; Right of First Offer . . . . . . . 13
3.5 Right of First Refusal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
3.6 Pre-IPO Right of First Offer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
3.7 Terms and Conditions of Sales Pursuant to Sections 3.4, 3.5 and 3.6 . . . . . . . . . . . . . . 26
3.8 Transferee Consenting Stockholders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
3.9 Continental Waiver . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
3.10 Cooperation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
SECTION 4 REGISTRATION RIGHTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
4.1 Demand Registrations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
4.2 Lockup Agreements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
4.3 Registration Procedures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
4.4 Expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
4.5 Preparation of Registration Statement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
4.6 Indemnification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
SECTION 5 ADDITIONAL AGREEMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
5.1 Confidentiality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
5.2 Issuance of Additional Class B Common Stock . . . . . . . . . . . . . . . . . . . . . . . . . . 39
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5.3 Voting on Scope of Business Limitations . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
SECTION 6 MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
6.1 Expiration and Termination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
6.2 Assignment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
6.3 Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
6.4 Entire Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
6.5 Amendment and Waiver . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
6.6 Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
6.7 Severability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
6.8 Consent to Jurisdiction; Specific Performance . . . . . . . . . . . . . . . . . . . . . . . . . 43
6.9 Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
6.10 Headings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
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AMENDED AND RESTATED STOCKHOLDERS' AGREEMENT
THIS AMENDED AND RESTATED STOCKHOLDERS' AGREEMENT is made as
of June 26, 1996, by and among TELEPORT COMMUNICATIONS GROUP INC., a Delaware
corporation (the "Company"), and the other parties listed on the signature page
hereof.
RECITALS:
The parties hereto other than the Company own all of the
issued and outstanding shares of Class B Common Stock of the Company. The
parties desire to set forth herein their agreement concerning the ownership of
the Common Stock of the Company and such other matters as are set forth herein.
AGREEMENTS:
In consideration of the foregoing and of the promises and
covenants contained in this Agreement, the parties agree as follows:
SECTION 1 DEFINITIONS AND OTHER GENERAL MATTERS
1.1 Definitions. The following terms shall be used in this
Agreement with the meanings set forth in this Section 1.1:
"Affiliate" means, with respect to any Person, any other
Person that directly or indirectly through one or more intermediates controls,
is controlled by or is under common control with the first specified Person.
For purposes of this Agreement, neither the Company, nor any Person controlled
by the Company, shall be deemed to be an Affiliate of a Consenting Stockholder.
"Agreement" means this Amended and Restated Stockholders'
Agreement, as it may be amended, restated, modified or supplemented from time
to time in accordance with its terms.
"Board" means the Board of Directors of the Company.
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"Business Day" means any day (other than a day which is a
Saturday or Sunday) on which banks are permitted to be open for business in the
City of New York.
"CEO" means the officer elected by the Board as the chief
executive officer of the Company. Xxxxxx Xxxxxxxxxx is currently the CEO.
"Certificate of Incorporation" means, as of any date, the
Amended and Restated Certificate of Incorporation of the Company as in effect
on such date.
"Class A Common Stock" means the Class A Common Stock, par
value $0.01 per share, of the Company.
"Class B Common Stock" means the Class B Common Stock, par
value $0.01 per share, of the Company.
"Common Stock" means the Class A Common Stock and the Class B
Common Stock.
"Consenting Stockholder" means any owner of shares of Class B
Common Stock that is a party to this Agreement or becomes a party to this
Agreement pursuant to Section 3.3, Section 3.5(c) or Section 3.8(b).
"Continental" means Continental Teleport, Inc., a Delaware
corporation, and any permitted transferee of Continental that becomes a party
to this Agreement pursuant to Section 3.3 or Section 3.5(c), including the
Continental Trust.
"Continental Merger" means the merger of Continental's Parent
into U S West, Inc. as contemplated by the Continental Merger Agreement.
"Continental Merger Agreement" means the Agreement and Plan of
Merger dated as of February 27, 1996, with respect to the merger of
Continental's Parent into U S West, Inc., as the same may be amended from time
to time.
"Continental Trust" means any trust that is formed in order to
comply with any regulatory requirement imposed as a result of the U S West
Transaction for the sole purpose of
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holding and disposing of Continental's interest in the Company and of which
Continental is the sole beneficiary.
"control" means possession, directly or indirectly, of the
power to direct or cause the direction of the management and policies of a
Person whether through the ownership of equity interests or voting securities,
by contract or otherwise.
"Controlled Affiliate," with respect to any Person as of any
relevant date, means the Parent of such Person and each Subsidiary of such
Parent.
"Designating Stockholder" means, as of any date, a Consenting
Stockholder that is included in a Consenting Stockholder Group that has,
pursuant to Section 2.1(b)(i), Section 2.1(b)(iv) or Section 2.3, designated an
Agreed Nominee who has been elected to and is then serving on the Board.
"Indirect Transfer" means a transfer of common stock or other
equity interests of a Consenting Stockholder or of a Person (other than the
Parent of such Consenting Stockholder) of which such Consenting Stockholder is
a direct or indirect Subsidiary to any Person after giving effect to which such
Consenting Stockholder is no longer a Subsidiary of the Person that was its
Parent prior to such transfer.
"Local Joint Venture" means a partnership, joint venture or
other Person created to conduct and operate local telecommunications systems in
a local market and in which the Company has a direct or indirect equity
interest which in the aggregate does not exceed 50% of the equity interests of
such partnership, joint venture or other Person.
"Market Price" means, with respect to any share of Class B
Common Stock as of any date, the average for the twenty full Trading Days
preceding such date of (i) the last reported sales prices, regular way, as
reported on the principal national securities exchange on which the Class A
Common Stock is listed or admitted for trading or (ii) if the Class A Common
Stock is not listed or admitted for trading on any national securities
exchange, the last reported sales prices, regular way, as reported on the
Nasdaq National Market or, if the Class A Common Stock is not listed on the
Nasdaq National Market, the average of
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the highest bid and lowest asked prices on each such Trading Day as reported on
the Nasdaq Stock Market, or (iii) if the Class A Common Stock is not listed or
admitted to trading on any national securities exchange, the Nasdaq National
Market or the Nasdaq Stock Market, the average of the highest bid and lowest
asked prices on each such Trading Day in the domestic over-the-counter market
as reported by the National Quotation Bureau, Incorporated, or any similar
successor organization. For purposes of this definition, a "Trading Day" means
a day on which the principal national securities exchange on which the Class A
Common Stock is listed or admitted to trading, or the Nasdaq National Market or
the Nasdaq Stock Market, as applicable, if the Class A Common Stock is not
listed or admitted to trading on any national securities exchange, is open for
the transaction of business (unless such trading shall have been suspended for
the entire day) or, if the Class A Common Stock is not listed or admitted to
trading on any national securities exchange, the Nasdaq National Market or the
Nasdaq Stock Market, any Business Day.
"Parent," with respect to any Person as of any relevant date,
means such Person if it is its own ultimate parent entity (within the meaning
of the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended, and
the rules and regulations promulgated thereunder, as in effect on the date
hereof) or if it has no ultimate parent entity that is a corporation or
partnership; otherwise, "Parent" means such ultimate corporate or partnership
parent entity of such Person; provided, however, that, with respect to Comcast
Teleport, Inc., so long as Comcast Teleport, Inc. is a Subsidiary of Comcast
Corporation, "Parent" means Comcast Corporation.
"Person" means any individual, general partnership, limited
partnership, corporation, limited liability company, joint venture, trust,
business trust, cooperative or association, or any other legal entity.
"Public Offering" means an offering of Class A Common Stock in
compliance with Section 5 of the Securities Act pursuant to a registration
statement on a form applicable to the sale of securities to the general public.
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"Securities Act" means the Securities Act of 1933 and the
rules and regulations promulgated thereunder.
"SEC" means the Securities and Exchange Commission or any
other federal agency at the time administering the Securities Act.
"Subsidiary" of any Parent means a Person (a) more than fifty
percent of the voting power of the outstanding shares or securities of which
(representing the right to vote for the election of directors or other managing
authority) are owned or controlled, directly or indirectly through one or more
Subsidiaries, by such Parent or (b) which does not have outstanding shares or
securities, but more than fifty percent of the ownership interests of which
representing the right to make the decisions for such Person are owned or
controlled, directly or indirectly through one or more Subsidiaries, by such
Parent; provided, however, that in each case, such Person shall be deemed to be
a Subsidiary of such Parent only for so long as such ownership or control
exists.
"Supplemental Agreement" means the Supplemental Agreement,
dated as of the date hereof, among the parties to this Agreement.
"U S West Transaction" means the Continental Merger or any
other transaction upon the consummation of which Continental would be acquired
by or become a Subsidiary of U S West, Inc.
1.2 Cross References. For purposes of this Agreement, the
following terms have the meanings set forth in the sections indicated:
Term Section
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Adjusted Class B Percentage Section 2.1(b)(i)
Agreed Nominee Section 2.1(b)
Allocable First Offer Shares Section 3.4(a)(ii)
Company Indemnified Parties Section 4.6(a)
Company Notice Section 4.1(a)
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Term Section
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Consenting Stockholder Group Section 2.1(b)
Converting Stockholder Section 3.4(a)
Demand Notice Section 4.1(a)
Demand Registrations Section 4.1(a)
Electing Stockholder Section 3.4(a)(i)
Eligible Holder Section 4.1(a)
Excess Shares Section 3.7(a)
Excess Shares Stockholder Section 3.7(a)
First Appraiser Section 3.5(d)(i)
First Offer Electing Stockholder Section 3.4(a)(i)
First Offer Notice of Sale Section 3.4(a)
First Offer Shares Section 3.4(a)
First Refusal Electing Stockholder Section 3.5(a)(i)
First Refusal Notice of Sale Section 3.5(a)
First Refusal Shares Section 3.5(a)
First Refusal Stockholders Section 3.5(a)
Free-to-Convert Date Section 3.4(b)
Free-to-Convert Shares Section 3.4(b)
Independent Director Section 2.1(b)(iii)
Maximum Amount Section 4.1(f)
Minimum Condition Section 4.1(a)
Notices of Sale Section 3.6(a)
Offered Shares Section 3.6(a)
Pre-IPO Electing Stockholder Section 3.6(a)(i)
Pre-IPO Notice of Sale Section 3.6(a)
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Term Section
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Pre-IPO Offered Shares Section 3.6(a)
Pre-IPO Offeror Section 3.6(a)
Pre-IPO Period Section 3.6(a)
Qualifying First Offer Amount Section 3.4(a)
Reorganization Agreement Section 3.3(c)
Second Appraiser Section 3.5(d)(i)
Selling Stockholder Section 3.5(a)
Stockholder Indemnified Parties Section 4.6(b)
Third Appraiser Section 3.5(d)(iii)
Third Party Offer Section 3.5(a)
Third Party Offeror Section 3.5(a)
1.3 Terms Generally. The definitions in Section 1.1 and
elsewhere in this Agreement shall apply equally to both the singular and plural
forms of the terms defined. Whenever the context may require, any pronoun
shall include the corresponding masculine, feminine and neuter forms. The
words "include," "includes" and "including" shall be deemed to be followed by
the phrase "without limitation." The words "herein," "hereof," "hereto" and
"hereunder" and words of similar import refer to this Agreement in its entirety
and not to any part hereof unless the context shall otherwise require. All
references herein to Sections shall be deemed references to Sections of this
Agreement unless the context shall otherwise require. Unless the context shall
otherwise require, any references to any agreement or other instrument or
statute or regulation are to it as amended and supplemented from time to time
(and, in the case of a statute or regulation, to any corresponding provisions
of successor statutes or regulations). Any reference in this Agreement to a
"day" or number of "days" (without the explicit qualification of "Business")
shall be interpreted as a reference to a calendar day or number of calendar
days. If any action or notice is to be taken or given on or by a particular
calendar day, and such calendar day is not a Business Day, then such action or
notice
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shall be deferred until, or may be taken or given on, the next Business Day.
1.4 Voting; Written Consent.
(a) Any agreement by a Consenting Stockholder
herein to vote its shares of Common Stock in a certain manner shall be deemed,
in each instance, to include an agreement by that Consenting Stockholder to use
its best efforts to take all actions necessary to call, or cause the Company
and the appropriate officers and directors of the Company to call, as promptly
as practicable, a special meeting of stockholders or to act by written consent.
(b) When any action is required to be taken by a
Consenting Stockholder pursuant to this Agreement, such Consenting Stockholder
shall take all steps necessary to implement such action, including executing or
causing to be executed, as promptly as practicable, a consent in writing in
lieu of an annual or special meeting of the stockholders pursuant to Section
228 of the General Corporation Law of Delaware or any successor statute thereto
to effect such stockholder action.
SECTION 2 BOARD OF DIRECTORS AND STOCKHOLDERS
2.1 Composition of the Board.
(a) The Board shall consist of thirteen directors.
Individuals to serve on the Board shall be nominated in accordance with this
Agreement and nomination procedures established by the Board, the Company's
By-Laws and the rules and regulations of the SEC and the principal stock
exchange or association, if any, on which the Common Stock is listed.
Directors shall be elected in accordance with the Company's Certificate of
Incorporation and By-Laws and the General Corporation Law of Delaware.
(b) No Consenting Stockholder shall nominate or
vote for any individual to serve as a director of the Company except an
individual designated pursuant to the provisions of this Section 2.1(b) or
Section 2.3. A Consenting Stockholder may nominate for election as a director
any individual designated by such Consenting Stockholder pursuant to Section
2.1(b)(i),
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Section 2.1(b)(iv) or Section 2.3 or any individual designated pursuant to
Section 2.1(b)(ii) if, in any such case, such individual was not duly nominated
in connection with such election by the Board or a nominating committee of the
Board pursuant to the Company's nomination procedures. Each Consenting
Stockholder hereby agrees to vote all shares of Common Stock owned by such
Consenting Stockholder to cause the election to the Board of the individuals
designated in accordance with this Section 2.1(b) and Section 2.3. For
purposes of this Agreement, an individual designated in accordance with this
Section 2.1(b) or Section 2.3 to which the foregoing covenants in this Section
2.1(b) apply is referred to as an "Agreed Nominee." For purposes of this
Agreement, each Consenting Stockholder none of the Controlled Affiliates of
which is also a Consenting Stockholder and each group of two or more Consenting
Stockholders that are Controlled Affiliates of each other shall constitute a
"Consenting Stockholder Group."
(i) Subject to Section 2.1(c), each
Consenting Stockholder Group shall have the right to designate a number of
Agreed Nominees equal to the largest integer that is less than or equal to its
Adjusted Class B Percentage divided by nine percent. A Consenting Stockholder
Group's "Adjusted Class B Percentage" equals the number, designated as a
percentage, determined by dividing (x) the aggregate number of shares of Class
B Common Stock owned by such Consenting Stockholder Group by (y) the aggregate
number of shares of Class B Common Stock outstanding (but excluding all shares
of Class B Common Stock owned by Continental and its Controlled Affiliates if
the Consenting Stockholder Group that includes Continental is not at such time
entitled to designate one or more Agreed Nominees pursuant to Section 2.1(c));
(ii) The CEO shall be an Agreed Nominee;
(iii) Two individuals nominated by the
Board or a nominating committee of the Board to be Independent Directors shall
be Agreed Nominees if (A) such individuals were nominated by the Board and all
individuals then serving on the Board who were Agreed Nominees pursuant to
Section 2.1(b)(i) voted for their nomination or (B) such individuals were
nominated by a nominating committee of the Board, the members of the nominating
committee included at least one Agreed Nominee
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previously designated by each Consenting Stockholder Group pursuant to Section
2.1(b)(i) and each member of the nominating committee who was an Agreed Nominee
pursuant to Section 2.1(b)(i) voted for their nomination; as used herein, an
"Independent Director" means a director who is neither employed by nor
affiliated with the Company or any Consenting Stockholder; and
(iv) If the number of Agreed Nominees
designated by the Consenting Stockholder Groups pursuant to Section 2.1(b)(i)
and pursuant to any prior application of this Section 2.1(b)(iv) is less than
ten, the Consenting Stockholder Group (other than (A) the Consenting
Stockholder Group that includes Continental if such Consenting Stockholder
Group is not entitled to designate an Agreed Nominee as a result of Section
2.1(c) and (B) a Consenting Stockholder Group that designated an additional
Agreed Nominee pursuant to a prior application of this Section 2.1(b)(iv)) that
then has the smallest difference between its Adjusted Class B Percentage and
the next highest integral multiple of 9% shall designate an additional Agreed
Nominee.
(c) After the earlier to occur of a Public
Offering and the consummation of the U S West Transaction, the Consenting
Stockholder Group that includes Continental shall only be entitled to designate
one or more Agreed Nominees pursuant to Section 2.1(b) if:
(i) no Affiliate of Continental is a local
exchange carrier;
(ii) the Company shall have received an
opinion from a law firm reasonably acceptable to the Consenting Stockholders
(other than Continental) to the effect that such Consenting Stockholder Group's
designation of an Agreed Nominee and such person's serving as a director of the
Company would not violate any law, rule or regulation or any order, award or
decree of any governmental body or administrative authority, including the
Department of Justice; and
(iii) a majority of the Board (excluding
any director of the Company who was an Agreed Nominee designated by the
Consenting Stockholder Group that includes Continental) approves such
Consenting Stockholder Group's designation of one
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or more Agreed Nominees in accordance with the provisions of Section 2.1(b).
(d) The Consenting Stockholder Groups shall
initially designate Agreed Nominees and the Consenting Stockholders shall cause
such Agreed Nominees to be elected as directors promptly following the date
hereof to serve until the next annual meeting of the stockholders of the
Company. Thereafter, the Consenting Stockholder Groups shall designate Agreed
Nominees prior to each annual meeting of the stockholders of the Company in a
manner that is consistent with the Company's nomination procedures and the
rules and regulations of the SEC and the principal stock exchange or
association, if any, on which the Common Stock is listed.
2.2 Removal of Directors.
(a) Each Consenting Stockholder shall vote all
shares of Common Stock owned by it for the removal (with or without cause) of
any director who was an Agreed Nominee designated by a Consenting Stockholder
Group pursuant to Section 2.1(b)(i), Section 2.1(b)(iv) or Section 2.3(c) if
the Consenting Stockholder Group that so designated such Agreed Nominee (i)
requests such removal by notice to the other Consenting Stockholders, (ii)
ceases to hold a number of shares of Class B Common Stock that entitle such
Consenting Stockholder Group to designate the number of Agreed Nominees
previously designated by such Consenting Stockholder Group pursuant to Section
2.1(b) (except that, upon any such reduction in its ownership of shares of
Class B Common Stock, such Consenting Stockholder Group shall be entitled to
identify a number of such directors who shall not be removed pursuant to this
clause (ii) equal to the number of Agreed Nominees that such Consenting
Stockholder is then entitled to designate pursuant to Section 2.1(b)(i) and
Section 2.1(b)(iv)), or (iii) is no longer entitled to designate any Agreed
Nominees pursuant to Section 2.1(c).
(b) Each Consenting Stockholder shall vote all
shares of Common Stock owned by it for the removal of an individual designated
as an Agreed Nominee pursuant to Section 2.1(b)(ii) and thereafter elected as a
director if such individual ceases to serve as CEO for any reason.
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(c) An Independent Director may be removed in
accordance with the Company's Certificate of Incorporation and By-laws.
2.3 Vacancies. If, as a result of death, disability,
retirement, resignation, removal (with or without cause) or otherwise there
shall exist or occur any vacancies on the Board, individuals to fill such
vacancies shall be nominated and elected in the manner provided in this
Agreement and in the Company's Certificate of Incorporation and By-laws. Agreed
Nominees with respect to an election to fill any such vacancies shall be
designated as follows:
(a) in the case of the CEO, the successor CEO
shall be an Agreed Nominee;
(b) in the case of an Independent Director, an
individual nominated in the manner described in Section 2.1(b)(iii); and
(c) in all other cases, by the Consenting
Stockholder Group or Consenting Stockholder Groups that, under Section 2.1, are
then entitled to designate a greater number of Agreed Nominees than the number
of directors currently sitting on the Board who are Agreed Nominees designated
by such Consenting Stockholder Group (by each such Consenting Stockholder Group
according to the number of additional Agreed Nominees that each such Consenting
Stockholder Group is so entitled to designate).
2.4 Conflicting Charter or By-law Provisions. Each
Consenting Stockholder shall vote its shares of Common Stock, and shall take
all other actions necessary, to ensure that the Company's Certificate of
Incorporation and By-laws facilitate and do not at any time conflict with the
provisions of this Agreement.
SECTION 3 TRANSFERS AND CONVERSIONS
3.1 Restrictions on Transfer and Conversion.
(a) A Consenting Stockholder shall not offer,
sell, transfer, assign, grant a participation in or option with respect to,
pledge, encumber or otherwise dispose of, or convert
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to Class A Common Stock, any of its shares of Class B Common Stock except in a
transaction that is expressly permitted by Section 3.3 or in compliance with
Section 3.4, 3.5 or 3.6, as applicable. Any attempt to sell, transfer, assign,
grant a participation in or option with respect to, pledge, encumber or
otherwise dispose of, or convert to Class A Common Stock, any shares of Class B
Common Stock in a manner that does not comply with this Agreement shall be
ineffective.
(b) Except as expressly permitted or required by
this Agreement, (i) each Consenting Stockholder shall be the record and
beneficial owner of such shares of Class B Common Stock indicated in the
Company's records as being owned by such Consenting Stockholder, in each case
free and clear of any pledge, lien, security interest, charge, claim, equity,
option or encumbrance of any kind, and (ii) no Consenting Stockholder shall
enter into any agreement or arrangement with respect to the exercise of its
rights to designate Agreed Nominees or to request the removal of a director
pursuant to this Agreement (other than an agreement or arrangement solely among
Consenting Stockholders that are included in the same Consenting Stockholder
Group); provided, however, that the foregoing shall not be construed to limit
the ability of a Consenting Stockholder to enter into agreements with respect
to the voting of its shares of Common Stock pending a sale of such stock
permitted by Section 3.1(a) or to enter into agreements not inconsistent with
this Agreement that restrict such Consenting Stockholder's ability to transfer
shares of Class B Common Stock.
(c) Each Consenting Stockholder agrees that no
Indirect Transfer shall occur with respect to such Consenting Stockholder
except for:
(i) an Indirect Transfer in connection
with the sale or other disposition to the transferee or its Controlled
Affiliate (including by merger, consolidation or share exchange) of (A) all or
substantially all of the assets of the Parent of such Consenting Stockholder or
(B) assets owned or controlled directly or indirectly by such Parent if the
aggregate value of the Class B Common Stock then owned by such Consenting
Stockholder represents less than thirty-five percent of the aggregate value of
the assets (including the stock of such Consenting Stockholder) being disposed
of; or
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17
(ii) an Indirect Transfer permitted by
Section 3.5.
(d) The Company agrees not to record any transfer
or conversion of Class B Common Stock by any Consenting Stockholder in the
stock transfer books of the Company unless the transfer complies with all
provisions of this Agreement.
3.2 Legend. Each certificate evidencing outstanding shares
of Class B Common Stock held by a Consenting Stockholder shall bear the
following legend:
THE SECURITIES EVIDENCED BY THIS CERTIFICATE ARE SUBJECT TO,
AND TRANSFERABLE ONLY UPON COMPLIANCE WITH, THE PROVISIONS OF
AN AMENDED AND RESTATED STOCKHOLDERS' AGREEMENT, DATED AS OF
JUNE 26, 1996, AS AMENDED, AMONG TELEPORT COMMUNICATIONS GROUP
INC. AND CERTAIN STOCKHOLDERS THEREOF. A COPY OF THIS
AGREEMENT IS ON FILE AT THE PRINCIPAL EXECUTIVE OFFICE OF
TELEPORT COMMUNICATIONS GROUP INC. XX XXX XXXXXXXX XXXXX,
XXXXXX XXXXXX, XXX XXXX 00000-0000.
All certificates evidencing shares of Class B Common Stock hereafter issued by
the Company to a Consenting Stockholder shall bear the legend set forth above.
Upon termination of this Agreement and surrender to the Company for such
purpose of any certificates bearing the legend set forth above, the Company
shall reissue such certificates to the owner thereof without such legend.
3.3 Exceptions to Restrictions on Transfers. The
restrictions contained in Sections 3.1, 3.4, 3.5 and 3.6 shall not apply to the
following (provided such transfers comply with applicable law):
(a) a transfer by a Consenting Stockholder to its
Parent or to any Subsidiary of its Parent of shares of Class B Common Stock if
the transferee assumes the obligations of the transferor under this Agreement
with respect to such shares and becomes a party to this Agreement;
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18
(b) a transfer by Continental to the Continental
Trust of shares of Class B Common Stock if the Continental Trust assumes the
obligations of Continental under this Agreement with respect to such shares and
becomes a party to this Agreement;
(c) a sale by Continental of shares of Class B
Common Stock to the Company pursuant to Section 6 of the Reorganization
Agreement dated as of April 18, 1996, among the Company, Xxx Communications,
Inc., TCI Communications, Inc., Comcast Corporation and Continental
Cablevision, Inc. (the "Reorganization Agreement"); or
(d) a transfer by TCI Teleport, Inc. of shares of
Class B Common Stock to the Company pursuant to Section 3.4 of the
Reorganization Agreement.
3.4 Conversion of Class B Common Stock to Class A Common
Stock; Right of First Offer.
(a) Except as expressly permitted pursuant to
Section 3.5(c) or Section 3.6, no Consenting Stockholder shall convert any
shares of Class B Common Stock to Class A Common Stock prior to the
consummation of the Company's initial Public Offering. After the consummation
of the Company's initial Public Offering, if a Consenting Stockholder (a
"Converting Stockholder") desires to convert all or any portion of its shares
of Class B Common Stock to Class A Common Stock, it shall first deliver to each
other Designating Stockholder a written notice (a "First Offer Notice of Sale")
of its intention to so convert such shares of Class B Common Stock (the "First
Offer Shares"). The Converting Stockholder shall not convert any of its shares
of Class B Common Stock to Class A Common Stock unless and until it has
delivered a First Offer Notice of Sale with respect to such shares to such
other Designating Stockholders pursuant to this Section 3.4 and otherwise
complied with the provisions of this Section 3.4 (except as expressly permitted
pursuant to Section 3.5(c) or Section 3.6). The First Offer Notice of Sale
shall contain the Converting Stockholder's offer to sell the First Offer Shares
to such other Designating Stockholders at a price per share equal to the Market
Price as of the date of the First Offer Notice of Sale (which price shall,
unless otherwise agreed by the Converting Stockholder and the Designating
Stockholders accepting such offer, be payable in cash). As used in this
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Section 3.4, the "Qualifying First Offer Amount" means, with respect to any
First Offer Notice of Sale, the amount, if any, by which the number of First
Offer Shares specified in such First Offer Notice of Sale exceeds two percent
of the number of shares of Common Stock outstanding at the time such First
Offer Notice of Sale is delivered (or such lesser amount as may be specified in
the First Offer Notice of Sale or as may otherwise be agreed to by the
Converting Stockholder).
(i) If a Designating Stockholder desires
to accept all or any portion of the offer set forth in a First Offer Notice of
Sale, such Designating Stockholder (a "First Offer Electing Stockholder")
shall, within ten Business Days of receipt of such First Offer Notice of Sale,
notify the Converting Stockholder of its intention to acquire First Offer
Shares and the number of such shares it desires to acquire, and deliver a copy
of such notice to each other Designating Stockholder.
(ii) If, after giving effect to any
amendment to any First Offer Electing Stockholder's notice pursuant to Section
3.4(a)(iii), the First Offer Electing Stockholders desire to acquire, in the
aggregate, either (x) all the First Offer Shares, or (y) a number of First
Offer Shares that is not more than the Qualifying First Offer Amount, then the
First Offer Electing Stockholders shall have the right to acquire, in the case
of clause (x), all the First Offer Shares or, in the case of clause (y), the
number of shares that the First Offer Electing Stockholders desire to acquire
(such shares that the First Offer Electing Stockholders have the right to
acquire, the "Allocable First Offer Shares"), allocated among them as follows
(or in such other manner as the First Offer Electing Stockholders may agree):
(A) the Allocable First Offer Shares
shall be allocated among the First Offer Electing Stockholders pro rata (based
on the number of shares of Class B Common Stock owned by each of them) until
all of the Allocable First Offer Shares have been allocated or any First Offer
Electing Stockholder has been allocated the number of First Offer Shares that
it desires to acquire, as specified in its notice to the Converting
Stockholder, as it may have been amended pursuant to Section 3.4(a)(iii);
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20
(B) if all Allocable First Offer
Shares are not allocated pursuant to paragraph (A) or any prior application of
this paragraph (B), any Allocable First Offer Shares that were not allocated
pursuant to paragraph (A) or any prior application of this paragraph (B) shall
be allocated among the First Offer Electing Stockholders (other than any First
Offer Electing Stockholder that has been allocated the number of First Offer
Shares that it desires to acquire, as specified in its notice to the Converting
Stockholder, as it may have been amended pursuant to Section 3.4(a)(iii)) pro
rata (based on the number of shares of Class B Common Stock owned by each of
them); and
(C) if all Allocable First Offer
Shares are not allocated pursuant to paragraph (A) and any prior application of
paragraph (B), any Allocable First Offer Shares that were not allocated
pursuant to paragraph (A) and any prior application of paragraph (B) shall be
allocated by continuing to apply paragraph (B) as required.
(iii) If the First Offer Electing
Stockholders desire to acquire, in the aggregate, less than all of the First
Offer Shares, then the Converting Stockholder shall so notify the First Offer
Electing Stockholders and:
(A) subject to Section
3.4(a)(iii)(B), each First Offer Electing Stockholder shall have the right, by
written notice sent to the Converting Stockholder (with a copy of such notice
to each other Designating Stockholder) within five days after its receipt of
the notice from the Converting Stockholder pursuant to this Section 3.4(a)(iii)
to amend the notice it delivered pursuant to 3.4(a)(i) to increase or decrease
the number of First Offer Shares that it desires to purchase;
(B) notwithstanding Section
3.4(a)(iii)(A), no notice by any First Offer Electing Stockholder pursuant to
this Section 3.4(a)(iii) shall constitute an amendment of the notice it
delivered pursuant to 3.4(a)(i) if the number of shares that the First Offer
Electing Stockholders originally desired to acquire, in the aggregate, as
specified in their notices pursuant to 3.4(a)(i) was less than or equal to the
Qualifying First Offer Amount and the number of shares that the First Offer
Electing Stockholders subsequently desired to acquire, in the aggregate, as
specified in their notices as
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proposed to be amended pursuant to this Section 3.4(a)(iii), was greater than
the Qualifying First Offer Amount but less than all the First Offer Shares; if
this Section 3.4(a)(iii)(B) applies, the First Offer Electing Stockholders
shall have the right to acquire the number of shares that the First Offer
Electing Stockholders originally desired to acquire, allocated among them in
accordance with Section 3.4(a)(ii);
(C) if, after giving effect to any
amendment to any First Offer Electing Stockholder's notice pursuant to this
Section 3.4(a)(iii), the First Offer Electing Stockholders desire to acquire,
in the aggregate, either (x) all the First Offer Shares, or (y) a number of
First Offer Shares that is not more than the Qualifying First Offer Amount,
then the First Offer Electing Stockholders shall have the right to acquire, in
the case of clause (x), all the First Offer Shares or, in the case of clause
(y), the number of shares that the First Offer Electing Stockholders desire to
acquire, allocated among them in accordance with Section 3.4(a)(ii);
(D) if, after giving effect to any
amendment to any First Offer Electing Stockholder's notice pursuant to this
Section 3.4(a)(iii) (but subject to Section 3.4(a)(iii)(B)), the First Offer
Electing Stockholders desire to acquire, in the aggregate, a number of First
Offer Shares that is greater than the Qualifying First Offer Amount but less
than all the First Offer Shares, then the Converting Stockholder's offer of the
First Offer Shares shall be deemed rejected in full as of the last day for a
First Offer Electing Stockholder to amend its notice pursuant to this Section
3.4(a)(iii); and
(E) if, after giving effect to any
amendment to any First Offer Electing Stockholder's notice pursuant to this
Section 3.4(a)(iii), the First Offer Electing Stockholders desire to acquire,
in the aggregate, a number of First Offer Shares that is less than or equal to
the Qualifying First Offer Amount, then the Converting Stockholder's offer of
the First Offer Shares shall be deemed accepted as to the number of First Offer
Shares that the First Offer Electing Stockholders desire to acquire (and the
First Offer Electing Stockholders shall have the right to acquire such shares
as provided in Section 3.4(a)(iii)(C)) and shall be deemed rejected with
respect to that portion of the First Offer Shares that exceeds the number
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of First Offer Shares that the First Offer Electing Stockholders desire to
acquire as of the last day for a First Offer Electing Stockholder to amend its
notice pursuant to this Section 3.4(a)(iii).
(iv) Notwithstanding the foregoing
provisions of this Section 3.4(a), the allocation of Allocable First Offer
Shares among the First Offer Electing Stockholders shall be subject to Section
3.7(a).
(b) If (i) the Converting Stockholder's offer of
the First Offer Shares is rejected (in whole or in part) as provided in Section
3.4(a), or (ii) the purchase of the First Offer Shares is not consummated
within the period set forth in Section 3.7(b) for any reason other than a
breach by the Converting Stockholder of any of its covenants, representations
or warranties that are a condition to consummation of such purchase, then,
beginning on the date that the Converting Stockholder's offer of the First
Offer Shares is deemed rejected or the day following the last day of the period
set forth in Section 3.7(b), as applicable (such applicable date, the
"Free-to-Convert Date"), the Converting Stockholder shall have the right to
convert the First Offer Shares with respect to which the Converting
Stockholder's offer was rejected or the First Offer Shares that were not
purchased within the period set forth in Section 3.7(b), as applicable (such
First Offer Shares, the "Free-to-Convert Shares"), to shares of Class A Common
Stock at any time prior to the later of (i) the ninetieth day after the
Free-to-Convert Date, or (ii) if prior to or within ten Business Days after the
Free-to-Convert Date the Converting Stockholder either delivers a Demand Notice
pursuant to Section 4.1 or submits a written request in response to a Company
Notice pursuant to Section 4.1 with respect to the registration of the shares
of Class A Common Stock into which the Free-to-Convert Shares may be converted,
either (A) the date on which the registration statement filed by the Company
with respect to such shares of Class A Common Stock becomes effective or (B)
the date on which such registration statement is withdrawn, as applicable. If
the Converting Stockholder does not convert the Free-to-Convert Shares into
shares Class A Common Stock during the applicable period, the procedure set
forth above with respect to the First Offer Notice of Sale shall be repeated
with respect to any subsequent proposed conversion of shares of Class B Common
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Stock to shares of Class A Common Stock by the Converting Stockholder.
3.5 Right of First Refusal.
(a) If a Consenting Stockholder (a "Selling
Stockholder") or its Parent or other Controlled Affiliate shall receive at any
time a bona fide offer in writing, which the Selling Stockholder or its Parent
or other Controlled Affiliate proposes to accept (a "Third Party Offer"), from
a third party (the "Third Party Offeror") to acquire all or part of its shares
of Class B Common Stock (the "First Refusal Shares") or to effect an Indirect
Transfer (in which case the "First Refusal Shares" shall be all the shares of
Class B Common Stock owned by the Selling Stockholder), the Selling Stockholder
shall deliver to each other Designating Stockholder (the "First Refusal
Stockholders") a notice (a "First Refusal Notice of Sale") containing a copy of
the Third Party Offer, the identity of the Third Party Offeror and an offer to
sell the First Refusal Shares to the First Refusal Stockholders on the
following terms: (i) if the Third Party Offer contemplates a purchase of the
First Refusal Shares by the Third Party Offeror for consideration consisting
solely of cash, then the Selling Stockholder's offer shall be to sell the First
Refusal Shares for cash in an amount equal to the purchase price specified in,
and otherwise on the terms and conditions contained in, the Third Party Offer,
and (ii) if the Third Party Offer contemplates an acquisition of the First
Refusal Shares by the Third Party Offeror for consideration any portion of
which is not cash or if the Third Party Offer contemplates an Indirect
Transfer, then the Selling Stockholder's offer shall be to sell the First
Refusal Shares for cash in an amount equal to the fair market value of the
First Refusal Shares (as determined pursuant to Section 3.5(d)) and otherwise
on the terms and conditions contained in the Third Party Offer. The First
Refusal Notice of Sale shall specify the price at which the First Refusal
Shares are offered, as provided in the preceding sentence. No Consenting
Stockholder shall sell or assign, or offer to sell or assign, or otherwise
dispose of any of its shares of Class B Common Stock (other than a disposition
pursuant to Section 3.3, 3.4 or 3.6) or permit an Indirect Transfer to occur
with respect to such Consenting Stockholder (other than pursuant to Section
3.1(c)(i)), unless and until such Consenting Stockholder has delivered a First
Refusal Notice of Sale with
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respect to such shares to the First Refusal Stockholders pursuant to this
Section 3.5 and otherwise complied with the provisions of this Section 3.5.
The First Refusal Stockholders shall enter into an appropriate confidentiality
agreement reasonably requested by the Selling Stockholder with respect to the
Third Party Offer.
(i) If a First Refusal Stockholder desires
to accept all or any portion of the offer set forth in a First Refusal Notice
of Sale as to any part of the First Refusal Shares, such First Refusal
Stockholder (a "First Refusal Electing Stockholder") shall, within ten Business
Days of receipt of such First Refusal Notice of Sale, notify the Selling
Stockholder of its intention to acquire First Refusal Shares and the number of
such shares it desires to acquire, and deliver a copy of such notice to each
other First Refusal Stockholder.
(ii) If the First Refusal Electing
Stockholders desire to acquire, in the aggregate, all of the First Refusal
Shares, then the First Refusal Electing Stockholders shall have the right to
acquire all the First Refusal Shares, allocated among them as follows (or in
such other manner as the First Refusal Electing Stockholders may agree):
(A) the First Refusal Shares shall
be allocated among the First Refusal Electing Stockholders pro rata (based on
the number of shares of Class B Common Stock owned by each of them) until all
of the First Refusal Shares have been allocated or any First Refusal Electing
Stockholder has been allocated the number of First Refusal Shares that it
desires to acquire, as specified in its notice to the Selling Stockholder, as
it may have been amended pursuant to Section 3.5(a)(iii);
(B) if all First Refusal Shares are
not allocated pursuant to paragraph (A) or any prior application of this
paragraph (B), any First Refusal Shares that were not allocated pursuant to
paragraph (A) or any prior application of this paragraph (B) shall be allocated
among the First Refusal Electing Stockholders (other than any First Refusal
Electing Stockholder that has been allocated the number of First Refusal Shares
that it desires to acquire, as specified in its notice to the Selling
Stockholder, as it may have been amended pursuant to
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Section 3.5(a)(iii)) pro rata (based on the number of shares of Class B Common
Stock owned by each of them); and
(C) if all First Refusal Shares are
not allocated pursuant to paragraph (A) and any prior application of paragraph
(B), any First Refusal Shares that were not allocated pursuant to paragraph (A)
and any prior application of paragraph (B) shall be allocated by continuing to
apply paragraph (B) as required.
(iii) If the First Refusal Electing
Stockholders desire to acquire, in the aggregate, less than all of the First
Refusal Shares, then the Selling Stockholder shall so notify the First Refusal
Electing Stockholders and:
(A) each First Refusal Electing
Stockholder shall have the right, by written notice sent to the Selling
Stockholder (with a copy of such notice to each other Designating Stockholder)
within five days after its receipt of the notice from the Selling Stockholder
pursuant to this Section 3.5(a)(iii) to amend its notice to increase the number
of First Refusal Shares that it desires to purchase;
(B) if, after giving effect to any
amendment to any First Refusal Electing Stockholder's notice pursuant to this
Section 3.5(a)(iii), the First Refusal Electing Stockholders desire to acquire,
in the aggregate, all of the First Refusal Shares, then the First Refusal
Electing Stockholders shall have the right to acquire all the First Refusal
Shares, allocated among them in accordance with Section 3.5(a)(ii); and
(C) if, after giving effect to any
amendment to any First Refusal Electing Stockholder's notice pursuant to this
Section 3.5(a)(iii), the First Refusal Electing Stockholders desire to acquire,
in the aggregate, less than all of the First Refusal Shares, then the Selling
Stockholder's offer of the First Refusal Shares shall be deemed rejected as of
the last day for a First Refusal Electing Stockholder to amend its notice
pursuant to this Section 3.5(a)(iii).
(iv) Notwithstanding the foregoing
provisions of this Section 3.5(a), the allocation of the First
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Refusal Shares among the First Refusal Electing Stockholders shall be subject
to Section 3.7(a).
(b) If (i) the Selling Stockholder's offer of the
First Refusal Shares is rejected as provided in Section 3.5(a), or (ii) the
purchase of the First Refusal Shares is not consummated within the period set
forth in Section 3.7(b) for any reason other than a breach by the Selling
Stockholder of any of its covenants, representations or warranties that are a
condition to consummation of such purchase, then the Selling Stockholder shall
have the right, at any time during the sixty-day period beginning on the date
that the Seller Stockholder's offer of the First Refusal Shares is deemed
rejected or the day following the last day of the period set forth in Section
3.7(b), as applicable, to enter into a binding agreement to sell all of the
First Refusal Shares to the Third Party Offeror, or to effect the Indirect
Transfer contemplated by the Third Party Offer, as applicable, in either case
on terms and conditions no less favorable in the aggregate to the Selling
Stockholder (and, in the case of an Indirect Transfer, its Parent) than those
set forth in the Third Party Offer, and thereafter (within the period specified
below in this Section 3.5(b)) to sell all of the First Refusal Shares to the
Third Party Offeror or effect the Indirect Transfer, as applicable, pursuant to
such agreement. The Selling Stockholder shall, as promptly as practicable and
prior to the closing of such sale or Indirect Transfer, provide to the First
Refusal Stockholders a copy of the agreement for the sale of the First Refusal
Shares so as to permit the First Refusal Stockholders to confirm for themselves
that the terms and conditions of such sale are not less favorable in the
aggregate to the Selling Stockholder (and, in the case of an Indirect Transfer,
its Parent) than those set forth in the Third Party Offer. If the Selling
Stockholder does not enter into such an agreement during such sixty-day period,
or does not close the sale thereunder within the period provided in Section
3.7(b), the procedure set forth above with respect to the First Refusal Notice
of Sale shall be repeated with respect to any subsequent proposed sale,
assignment or other disposition of shares of Common Stock by the Selling
Stockholder.
(c) If the First Refusal Shares include a
sufficient number of shares of Class B Common Stock to entitle the holder
thereof to designate at least one Agreed Nominee under
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Section 2.1, then the Selling Stockholder shall have the right to sell to the
Third Party Offeror such shares of Class B Common Stock or permit the Indirect
Transfer, as applicable, without converting such shares to Class A Common Stock
so long as (i) in the case of a sale of the First Refusal Shares, the Third
Party Offeror assumes the obligations of the Selling Stockholder under this
Agreement and, if it is then in effect, the Supplemental Agreement with respect
to such shares and becomes a party to this Agreement and, if it is then in
effect, the Supplemental Agreement, and (ii) in the case of an Indirect
Transfer, the Third Party Offeror, upon taking control of the Selling
Stockholder, causes the Selling Stockholder to confirm in writing the
continuing validity and effectiveness of its obligations under this Agreement
and the Supplemental Agreement. If the First Refusal Shares do not include a
sufficient number of shares of Class B Common Stock to entitle the holder
thereof to designate at least one Agreed Nominee under Section 2.1, or if the
Third Party Offeror refuses to become a party to this Agreement or, if it is
then in effect, the Supplemental Agreement, then the Selling Stockholder shall,
prior to transferring the First Refusal Shares to the Third Party Offeror or
effecting the Indirect Transfer, as applicable, convert all shares of Class B
Common Stock included in the First Refusal Shares to Class A Common Stock and
shall not have the right to sell Class B Common Stock to the Third Party
Offeror or to permit the Indirect Transfer while the Selling Stockholder holds
shares of Class B Common Stock. The conversion of shares of Class B Common
Stock to Class A Common Stock pursuant to the foregoing sentence shall not be
subject to the provisions of Section 3.3, 3.4 or 3.6. If the Third Party
Offeror receives only shares of Class A Common Stock, then it shall not be
required to become a party to this Agreement and shall not become a party to
this Agreement except as provided in the following sentence. If the Third
Party Offeror receives only shares of Class A Common Stock and such shares
represent at least five percent of the number of shares of Common Stock then
outstanding, then it shall have the right, at its option, to become a party to
this Agreement.
(d) Before submitting a First Refusal Notice of
Sale pursuant to Section 3.5(a) in response to a Third Party Offer that
contemplates (i) a sale of the First Refusal Shares in conjunction with other
assets, (ii) an acquisition of the First Refusal Shares by the Third Party
Offeror for consideration any
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portion of which is not cash or (iii) an Indirect Transfer, the Selling
Stockholder and the other Designating Stockholders shall cause (A) if the Third
Party Offer contemplates a sale of the First Refusal Shares in conjunction with
other assets, the total consideration specified in the Third Party Offer to be
allocated between the First Refusal Shares and such other assets, (B) if the
Third Party Offer contemplates an acquisition of the First Refusal Shares by
the Third Party Offeror for consideration any portion of which is not cash or
if the Third Party Offer contemplates an Indirect Transfer, the fair market
value of the First Refusal Shares to be determined, in each case pursuant to
this Section 3.5(d):
(i) The Selling Stockholder shall deliver
to each other Designating Stockholder a notice stating that the Selling
Stockholder intends to deliver a First Refusal Notice of Sale to which this
Section 3.5(d) applies and identifying an appraiser (the "First Appraiser") who
has been retained by the Selling Stockholder to allocate the total
consideration specified in the Third Party Offer or to conduct an appraisal of
the First Refusal Shares, as applicable, pursuant to this Section 3.5(d).
Within ten Business Days after its receipt of the Selling Stockholder's notice
pursuant to the preceding sentence, the Designating Stockholder (other than the
Selling Stockholder) that, together with its Controlled Affiliates, owns the
greatest number of shares of Class B Common Stock, shall send a notice to the
Selling Stockholder and the other Designating Stockholders identifying a second
appraiser (the "Second Appraiser") who shall be retained by the Selling
Stockholder to make such allocation or conduct such appraisal, as applicable,
pursuant to this Section 3.5(d).
(ii) The First Appraiser and the Second
Appraiser shall submit their independent determinations of the amount of
consideration allocable to the First Refusal Shares or the fair market value of
the First Refusal Shares, as applicable, within thirty days after the date on
which the Second Appraiser is retained. If the respective determinations of
the First Appraiser and the Second Appraiser vary by less than ten percent of
the higher determination, the amount of consideration allocable to the First
Refusal Shares or the fair market value of the First Refusal Shares, as
applicable, for purposes of Section 3.5(a), shall be the average of the two
determinations.
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(iii) If the respective determinations of
the First Appraiser and the Second Appraiser vary by ten percent or more of the
higher determination, the two Appraisers shall promptly designate a third
appraiser (the "Third Appraiser"), who shall be retained by the Selling
Stockholder to make an allocation or conduct an appraisal pursuant to this
Section 3.5(d). The First Appraiser and the Second Appraiser shall be
instructed not to, and no party to this Agreement or any Controlled Affiliate
of any party to this Agreement shall, provide any information to the Third
Appraiser as to the determinations of the First Appraiser and the Second
Appraiser or otherwise influence the Third Appraiser's determination in any
way. The Third Appraiser shall submit its determination of the amount of
consideration allocable to the First Refusal Shares or the fair market value of
the First Refusal Shares, as applicable, within thirty days after the date on
which the Third Appraiser is retained. If a Third Appraiser is retained, the
amount of consideration allocable to the First Refusal Shares or the fair
market value of the First Refusal Shares, as applicable, for purposes of
Section 3.5(a), shall equal the average of the two closest of the three
determinations, except that, if the difference between the highest and middle
determinations is no more than 105% and no less than 95% of the difference
between the middle and lowest determinations, then the amount of consideration
allocable to the First Refusal Shares or the fair market value of the First
Refusal Shares, as applicable, for purposes of Section 3.5(a), shall equal the
middle determination.
(iv) Any appraiser retained pursuant to
this Section 3.5(d) shall be nationally recognized as being qualified and
experienced in the appraisal of assets comparable to the First Refusal Shares
and, if applicable, any other assets proposed to be sold pursuant to the Third
Party Offer and shall not be an Affiliate of any party to this Agreement. All
fees and expenses of any appraiser retained pursuant to this Section 3.5(d)
shall be paid by the Selling Stockholder.
(v) In determining the fair market value
of the First Refusal Shares, if applicable, each appraiser retained pursuant to
this Section 3.5(d) shall: (A) assume that the fair market value of the
applicable asset is the price at which the asset would change hands between a
willing buyer and a willing
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seller, neither being under any compulsion to buy or sell and each having
reasonable knowledge of all relevant facts; (B) assume that the applicable
asset would be sold for cash; and (C) use valuation techniques then prevailing
in the relevant industry.
3.6 Pre-IPO Right of First Offer.
(a) If the Company's initial Public Offering has
not been consummated by September 30, 1996, then each Consenting Stockholder
shall have the right, at any time thereafter but prior to the consummation of a
Public Offering (the "Pre-IPO Period"), to deliver to the other Designating
Stockholders a notice (a "Pre-IPO Notice of Sale" and, together with the First
Offer Notice of Sale and the First Refusal Notice of Sale, the "Notices of
Sale") of such Consenting Stockholder's intention to sell, assign or otherwise
dispose of the shares of Class A Common Stock into which all or part of its
shares of Class B Common Stock may be converted (the "Pre-IPO Offered Shares,"
and, together with the First Offer Shares and the First Refusal Shares, the
"Offered Shares"). Such Consenting Stockholder (the "Pre-IPO Offeror") shall
not sell or assign, or offer to sell or assign, or otherwise dispose of any of
its shares of Class B Common Stock (other than a disposition pursuant to
Section 3.3, 3.4 or 3.5), or convert such shares into shares of Class A Common
Stock, unless and until it has delivered a Pre-IPO Notice of Sale with respect
to such shares to the other Designating Stockholders pursuant to this Section
3.6 and otherwise complied with the provisions of this Section 3.6. Such
Pre-IPO Notice of Sale shall contain the Pre-IPO Offeror's offer to sell the
Pre-IPO Offered Shares to the other Designating Stockholders, and shall specify
the terms and conditions of such sale, including the number of Pre-IPO Offered
Shares and the price per Pre-IPO Offered Share (which price shall, unless
otherwise agreed by the Pre-IPO Offeror and the Designating Stockholders
accepting such offer, be payable in cash).
(i) If any of the other Designating
Stockholders desires to accept all or any portion of the offer set forth in a
Pre-IPO Notice of Sale, such Designating Stockholder (a "Pre-IPO Electing
Stockholder" and, together with the First Offer Electing Stockholders and the
First Refusal Electing Stockholders, the "Electing Stockholders") shall, within
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ten Business Days of receipt of such Pre-IPO Notice of Sale, notify the Pre-IPO
Offeror of its intention to acquire Pre-IPO Offered Shares and the number of
such shares it desires to acquire, and deliver a copy of such notice to each
other Designating Stockholder.
(ii) If the Pre-IPO Electing Stockholders
desire to acquire, in the aggregate, all of the Pre-IPO Offered Shares, then
the Pre-IPO Electing Stockholders shall have the right to acquire all the
Pre-IPO Offered Shares, allocated among them as follows (or in such other
manner as the Pre-IPO Electing Stockholders may agree):
(A) the Pre-IPO Offered Shares shall
be allocated among the Pre-IPO Electing Stockholders pro rata (based on the
number of shares of Class B Common Stock owned by each of them) until all of
the Pre-IPO Offered Shares have been allocated or any Pre-IPO Electing
Stockholder has been allocated the number of Pre-IPO Offered Shares that it
desires to acquire, as specified in its notice to the Pre-IPO Offeror, as it
may have been amended pursuant to Section 3.6(a)(iii);
(B) if all Pre-IPO Offered Shares
are not allocated pursuant to paragraph (A) or any prior application of this
paragraph (B), any Pre-IPO Offered Shares that were not allocated pursuant to
paragraph (A) or any prior application of this paragraph (B) shall be allocated
among the Pre-IPO Electing Stockholders (other than any Pre-IPO Electing
Stockholder that has been allocated the number of Pre-IPO Offered Shares that
it desires to acquire, as specified in its notice to the Pre-IPO Offeror, as it
may have been amended pursuant to Section 3.6(a)(iii)) pro rata (based on the
number of shares of Class B Common Stock owned by each of them); and
(C) if all Pre-IPO Offered Shares
are not allocated pursuant to paragraph (A) and any prior application of
paragraph (B), any Pre-IPO Offered Shares that were not allocated pursuant to
paragraph (A) and any prior application of paragraph (B) shall be allocated by
continuing to apply paragraph (B) as required.
(iii) If the Pre-IPO Electing Stockholders
desire to acquire, in the aggregate, less than all of the Pre-IPO
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Offered Shares, then the Pre-IPO Offeror shall so notify the Pre-IPO Electing
Stockholders and:
(A) each Pre-IPO Electing
Stockholder shall have the right, by written notice sent to the Pre-IPO Offeror
(with a copy of such notice to each other Designating Stockholder) within five
days after its receipt of the notice from the Pre-IPO Offeror pursuant to this
Section 3.6(a)(iii) to amend its notice to increase the number of Pre-IPO
Offered Shares that it desires to purchase;
(B) if, after giving effect to any
amendment to any Pre-IPO Electing Stockholder's notice pursuant to this Section
3.6(a)(iii), the Pre-IPO Electing Stockholders desire to acquire, in the
aggregate, all of the Pre-IPO Offered Shares, then the Pre-IPO Electing
Stockholders shall have the right to acquire all the Pre-IPO Offered Shares,
allocated among them in accordance with Section 3.6(a)(ii); and
(C) if, after giving effect to any
amendment to any Pre-IPO Electing Stockholder's notice pursuant to this Section
3.6(a)(iii), the Pre-IPO Electing Stockholders desire to acquire, in the
aggregate, less than all of the Pre-IPO Offered Shares, then the Pre-IPO
Offeror's offer of the Pre-IPO Offered Shares shall be deemed rejected as of
the last day for a Pre-IPO Electing Stockholder to amend its notice pursuant to
this Section 3.6(a)(iii).
(iv) Notwithstanding the foregoing
provisions of this Section 3.6(a), the allocation of the Pre-IPO Offered Shares
among the Pre-IPO Electing Stockholders shall be subject to Section 3.7(a).
(b) If (i) the Pre-IPO Offeror's offer of the
Pre-IPO Offered Shares is rejected as provided in Section 3.6(a), or (ii) the
purchase of the Pre-IPO Offered Shares is not consummated within the period set
forth in Section 3.7(b) for any reason other than a breach by the Pre-IPO
Offeror of any of its covenants, representations or warranties that are a
condition to consummation of such purchase, then the Pre-IPO Offeror shall have
the right, at any time during the sixty-day period beginning on the date that
the Pre-IPO Offeror's offer of the Pre-IPO Offered Shares is deemed rejected or
the day following the last
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day of the period set forth in Section 3.7(b), as applicable, to convert all
Class B Common Stock included in the Pre-IPO Offered Shares to Class A Common
Stock and to enter into a binding agreement to sell all of such shares of Class
A Common Stock to a third party on terms and conditions no less favorable in
the aggregate to the Pre-IPO Offeror than those set forth in the Pre-IPO Notice
of Sale and thereafter (within the period specified below in this Section
3.6(b)) to sell all of such shares of Class A Common Stock to such third party
pursuant to such agreement. In no event shall the Pre-IPO Offeror have the
right to transfer any shares of Class B Common Stock pursuant to this Section
3.6 except to the Pre-IPO Electing Stockholders. The Pre-IPO Offeror shall, as
promptly as practicable and prior to the closing of such sale, provide to the
other Designating Stockholders a copy of the agreement for the sale of the
Pre-IPO Offered Shares so as to permit the Designating Stockholders to confirm
for themselves that the terms and conditions of such sale are not less
favorable in the aggregate to the Pre-IPO Offeror than those set forth in the
Pre-IPO Notice of Sale. If the Pre-IPO Offeror does not enter into such an
agreement during such sixty-day period, or does not close the sale thereunder
within sixty days after the execution of such an agreement (subject to
extension for a maximum of 180 additional days to the extent required to obtain
all required governmental, regulatory and other third party consents and
approvals), the procedure set forth above with respect to the Pre-IPO Notice of
Sale shall be repeated with respect to any subsequent proposed sale, assignment
or other disposition of shares of Common Stock by such Pre-IPO Offeror during
the Pre-IPO Period.
(c) If, during the sixty-day period after the
expiration of the relevant period set forth in Section 3.6(b), the Pre-IPO
Offeror receives a bona fide offer in writing from any third party to purchase
only a part of the shares of Class A Common Stock into which the Pre-IPO
Offered Shares may be converted or to purchase all of the shares of Class A
Common Stock into which the Pre-IPO Offered Shares may be converted on terms
and conditions less favorable in the aggregate to the Pre-IPO Offeror than
those set forth in the Pre-IPO Notice of Sale, and the Pre-IPO Offeror desires
to accept such offer, the Pre-IPO Offeror shall give notice of the terms of
such offer to the other Designating Stockholders and the procedure set forth
above with
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respect to the initial Pre-IPO Notice of Sale shall be repeated with respect to
such offer.
3.7 Terms and Conditions of Sales Pursuant to Sections
3.4, 3.5 and 3.6.
(a) The acquisition by any Electing Stockholder
(the "Excess Shares Stockholder"), as a result of its election to exercise
rights granted pursuant to Section 3.4(a), 3.5(a) or 3.6(a), of any shares of
Class B Common Stock (the "Excess Shares") which, when added to the shares of
Class B Common Stock held by such Electing Stockholder immediately prior to
such election, would cause its percentage of the total outstanding Class B
Common Stock to exceed 49% shall be subject to the application of this Section
3.7(a). If, in connection with any offer made pursuant to Section 3.4(a),
3.5(a) or 3.6(a), any Electing Stockholder would, but for the application of
this Section 3.7(a), have the right to acquire Excess Shares, then (i) the
Excess Shares Stockholder shall have the right to acquire that number of Excess
Shares which, when added to the shares of Class B Common Stock held by the
Excess Shares Stockholder immediately prior to such election, would cause its
percentage of the total outstanding Class B Common Stock to equal 49% and (ii)
each Electing Stockholder other than the Excess Shares Stockholder shall have
the right to acquire its pro rata portion (based on the number of shares of
Class B Common Stock owned by it and the number of shares of Class B Common
Stock owned by all such Electing Stockholders other than the Excess Shares
Stockholder), or such other portion as such other Electing Stockholders may
agree among themselves, of the remaining Excess Shares; provided, however, that
if there are two Excess Shares Stockholders in connection with any election to
exercise rights granted pursuant to Section 3.4(a), 3.5(a) or 3.6(a), then each
Excess Shares Stockholder shall have the right to acquire that number of Excess
Shares which, when added to the shares of Class B Common Stock held by such
Excess Shares Stockholder immediately prior to such election, would cause its
percentage of the total outstanding Class B Common Stock to equal 49% and any
remaining Excess Shares shall be split equally between such Excess Shares
Stockholders. Each Excess Shares Stockholder shall have the right to acquire
any portion of the Excess Shares which the other Electing Stockholders have not
agreed to acquire.
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(b) Any purchase and sale of Common Stock pursuant
to Section 3.4, 3.5 or 3.6 shall be subject to the following terms and
conditions:
(i) the selling Consenting Stockholder
shall represent and warrant that the buying Consenting Stockholders will
receive good and valid title to the Offered Shares, free and clear of all
security interests, liens, claims, pledges, options, rights of first refusal,
limitations on voting rights, charges and other encumbrances of any nature
whatsoever except as set forth in this Agreement and except for governmental,
regulatory and other third party consents and approvals required for transfers
of shares of Common Stock generally;
(ii) closing of the purchase and sale
shall be subject to the satisfaction of following conditions:
(A) all applicable waiting periods
under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended, and
the rules and regulations promulgated thereunder, shall have expired or been
terminated;
(B) all governmental approvals and
other third party consents expressly required with respect to the transactions
to be consummated at such closing shall have been obtained, to the extent the
failure to obtain such approvals or consents would prevent the Converting
Stockholder, the Selling Stockholder or the Pre-IPO Offeror, as the case may
be, from performing any of its material obligations under the transaction
documents or would result in any materially adverse change in, or materially
adverse effect on, the business, assets, results of operations, financial
condition or prospects of the Company and the Persons controlled by the Company
taken as a whole;
(C) there shall be no preliminary or
permanent injunction or other order by any court of competent jurisdiction
restricting, preventing or prohibiting the consummation of the transactions to
be consummated at such closing;
(D) the representation and warranty
of the Converting Stockholder, the Selling Stockholder or the Pre-IPO Offeror,
as the case may be, contemplated by clause (i) of
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this sentence shall be true and correct at the closing of such sale with the
same force and effect as if then made; and
(iii) The closing of any purchase and sale
of Common Stock pursuant to Section 3.4, 3.5 or 3.6 shall take place as
promptly as practicable, but in any event within sixty days after the
acceptance of the applicable offer, subject to extension for a maximum of one
hundred eighty additional days to the extent required to obtain all required
governmental, regulatory and other third party consents and approvals.
(c) In furtherance of the rights set forth in
Sections 3.4, 3.5 and 3.6, the Company agrees that, on reasonable notice
following the delivery of a Notice of Sale, at reasonable times and without
interfering with the business or operations of the Company, it will assist the
Converting Stockholder, the Selling Stockholder or the Pre-IPO Offeror, as the
case may be, in obtaining all necessary consents to any disposition of the
Offered Shares.
3.8 Transferee Consenting Stockholders.
(a) A Consenting Stockholder shall remain a
Consenting Stockholder for so long as it owns any Class B Common Stock
regardless of the percentage of Class B Common Stock it may own from time to
time. Any transferee of a Consenting Stockholder required to become a party to
this Agreement pursuant to Section 3.3 or Section 3.5(c) of this Agreement
shall become a Consenting Stockholder by delivering to the Company (which shall
promptly send notice thereof to the Consenting Stockholders) a counterpart
signature page to this Agreement and, if it is then in effect, the Supplemental
Agreement. No further action by the Company or the Consenting Stockholders
shall be required for such person to become a party to this Agreement.
Following any Indirect Transfer permitted by this Agreement, the Consenting
Stockholder with respect to which such Indirect Transfer has occurred shall
confirm to the other Consenting Stockholders in writing the continuing validity
and effectiveness of its obligations under this Agreement and, if it is then in
effect, the Supplemental Agreement.
(b) If TCI Communications, Inc. elects in
accordance with Section 3.4(a) of the Reorganization Agreement to
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cause shares of Class B Common Stock allocable to the Viacom Interests (as
defined in the Reorganization Agreement) to be issued to a Subsidiary of TCI
Communications, Inc. other than TCI Teleport, Inc., such Subsidiary shall
become a party to this Agreement and shall become a Consenting Stockholder by
delivering to the Company (which shall promptly send notice thereof to the
Consenting Stockholders) a counterpart signature page to this Agreement and, if
it is then in effect, the Supplemental Agreement.
3.9 Continental Waiver. Continental agrees to consent to
any request for a waiver from the transfer restrictions contained in this
Section 3 which is requested by Consenting Stockholders that hold at least
fifty percent of the outstanding shares of Class B Common Stock held by
Consenting Stockholders other than Continental, so long as Continental is
offered the same opportunity either (as determined by the Consenting
Stockholders that made such request):
(a) to participate in the transfer for which such
waiver is requested on a pro rata basis (based on the ratio that the number of
shares of Class B Common Stock subject to such request bears to the total
number of shares of Class B Common Stock held by all Consenting Stockholders
other than Continental), and on the same terms and conditions, as the proposed
transferor or transferors with respect to which such request is made; or
(b) to receive cash in exchange for shares of
Class B Common Stock in an amount equal to the fair market value of the
consideration that Continental would have been entitled to receive upon the
transfer of a like number of shares of Class B Common Stock had Continental
participated in the transfer for which such waiver is requested on a pro rata
basis as described in Section 3.9(a); for purposes of this Section 3.9(b), if
the transferors in a transaction with respect to which such a request is made
contribute their shares of Class B Common Stock to an entity and receive
capital contribution credit therefor in an amount determined by arms' length
negotiations between the transferors and one or more Persons that are not
Affiliates of the transferors, then the fair market value of the consideration
received by the transferors with respect to such contribution shall be equal to
the amount of such capital contribution credit
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and the fair market value of the consideration that Continental would have been
entitled to receive had it participated in the transaction shall be
proportionate to that received by the transferors (based on the relative
numbers of shares of Class B Common Stock involved).
3.10 Cooperation. Each Consenting Stockholder shall use
commercially reasonable efforts to cooperate with any transferring Consenting
Stockholder in connection with its efforts to transfer any interest in its
Common Stock in accordance with the provisions of this Section 3, including
making qualified personnel available for attending hearings and meetings
respecting any consents, approvals and authorizations required for such
transfer and, at the request of the transferring Consenting Stockholder, making
all filings with, and giving all notices to, third parties and governmental
authorities that may be necessary or reasonably required to be made or given by
such of the Consenting Stockholders in order to effect the contemplated
transfers. Subject to the other provisions of this Section, no Consenting
Stockholder shall take any action to delay, impair or impede the receipt of any
required consents, approvals or authorizations. "Commercially reasonable
efforts" as used in this Section shall not require any party to undertake
extraordinary or unreasonable measures to obtain any consents, approvals or
other authorizations, including requiring such party to make any material
expenditures (other than normal filing fees or the like) or to accept any
material changes in the terms of the contract, license or other instrument for
which a consent, approval or authorization is sought.
SECTION 4 REGISTRATION RIGHTS
4.1 Demand Registrations.
(a) Requests for Registration. At any time after
the date which is six moafter the closing of the Company's initial Public
Offering, any stockholder of the Company which is a party to this Agreement (an
"Eligible Holder") may request that the Company effect the registration under
the Securities Act of all or part of its shares of Class A Common Stock
(including shares of Class A Common Stock issuable upon conversion of shares of
Class B Common Stock held by it) for sale in the manner specified in such
request. A stockholder that previously owned
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shares of Class B Common Stock but ceased to be a Consenting Stockholder upon
the conversion of its shares of Class B Common Stock to shares of Class A
Common Stock shall continue to be a party to this Agreement so long as it owns
any shares of Class A Common Stock and therefore shall be an Eligible Holder.
Such request shall be made by furnishing written notice thereof (a "Demand
Notice") to the Company, setting forth the number of shares of Class A Common
Stock requested to be registered and such Eligible Holder's preferred method of
distribution. Within ten days after receipt of any Demand Notice, the Company
shall give written notice of such Demand Notice to all other Eligible Holders.
Following receipt of a Demand Notice from the Company (the "Company Notice"),
each such other Eligible Holder may give the Company a written request to
register any or all of such Eligible Holder's Class A Common Stock (including
shares of Class A Common Stock issuable upon conversion of shares of Class B
Common Stock held by it) in the registration described in the Company Notice,
provided that such written request is given within fifteen days after the date
on which the Company Notice is given (with such request stating (i) the number
of shares of Class A Common Stock to be so included, (ii) such other Eligible
Holder's preferred method of distribution of such shares and (iii) any other
information that the Company Notice reasonably requests be included in such
notice from such Eligible Holder). All registrations requested pursuant to
this Section 4.1(a) are referred to herein as "Demand Registrations." The
Company shall not be required to effect a Demand Registration unless the
aggregate number of shares of Class A Common Stock demanded to be so registered
is at least two percent of the number of shares of Common Stock then
outstanding (the "Minimum Condition"). If the Minimum Condition is met, then,
subject to Sections 4.1(b), 4.1(c) and 4.1(f) below, the Company shall, as soon
as practicable, file with the SEC and use all commercially reasonable efforts
to cause to become effective as promptly as practicable, a Registration
Statement which shall cover the shares of Class A Common Stock requested to be
registered pursuant to such Demand Notices.
(b) Number of Demand Registrations. Once a Demand
Registration has been effected, the Company shall not be obligated to register
Class A Common Stock pursuant to another Demand Registration prior to the
expiration of twelve months from the date on which the previous Demand
Registration was declared
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effective; provided, however, that a registration will not count as a Demand
Registration unless it has become effective, and such effectiveness has been
maintained under the Securities Act (and not subject to any stop order,
injunction or other order or requirement of the SEC or other governmental
agency or court for any reason) for the period specified in Section 4.3(b).
Each Eligible Holder may, before any Registration Statement becomes effective,
withdraw its shares of Class A Common Stock from inclusion therein if the terms
of the proposed distribution are not satisfactory to such Eligible Holder. If
after giving effect to such withdrawal or withdrawals of shares from a Demand
Registration the Minimum Condition would no longer be satisfied, then such
Registration Statement shall be withdrawn. A registration that is withdrawn at
the request of the Eligible Holders that demanded such Demand Registration will
not count as a Demand Registration.
(c) Restrictions on Registrations. The Company
may postpone for up to three months after its receipt of a Demand Notice the
filing of a registration statement for a Demand Registration if the Company
reasonably believes that such Demand Registration would have a material adverse
effect on any proposal or plan by the Company or any of its Subsidiaries to
engage in any financing, acquisition of assets (other than in the ordinary
course of business) or any merger, consolidation, tender offer or other
significant transaction and notifies the Eligible Holders in writing of such
postponement; provided that the Company shall have the right to so postpone
such filing or effectiveness only one time during any period of twelve
consecutive months; and provided, further, that the three-month limitation
contained above in this Section 4.1(c) and the limitation contained in the
first proviso to this Section 4.1(c) shall not apply if the shares proposed to
be registered by the Eligible Holder furnishing the applicable Demand Notice
could then be sold without restrictions (including any volume limitation) under
the Securities Act.
(d) Underwriting.
(i) Subject to Section 4.1(e), the
distribution of the Class A Common Stock covered by the Demand Registration
shall be effected by means of a firm commitment underwriting, and the right of
any Eligible Holder to
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registration pursuant to this Section 4 shall be conditioned upon such Eligible
Holders' participation in such underwriting and the inclusion of such Eligible
Holder's Class A Common Stock in the underwriting (unless otherwise mutually
agreed by a majority in interest of the other Eligible Holders) to the extent
provided herein. The Company (together with all Eligible Holders proposing to
distribute their Class A Common Stock through such underwriting) shall enter
into an underwriting agreement in customary form with a managing underwriter of
nationally recognized standing selected for such underwriting by the Company
with the approval of the Eligible Holder that has included the largest number
of shares in the Demand Registration, such approval not to be withheld
unreasonably. No Eligible Holder may participate in any Demand Registration
unless such Eligible Holder (A) agrees to sell its Class A Common Stock on the
basis provided in such underwriting agreement and (B) completes and executes
all questionnaires, powers of attorney, indemnities and other documents
required under the terms of such underwriting agreement.
(ii) Notwithstanding any other provision
of this Section 4, if the managing underwriter advises the Company and the
Eligible Holders in writing that marketing factors require a limitation of the
number of shares to be underwritten, then the managing underwriter may exclude
shares requested to be included in such Demand Registration. The number of
shares of Class A Common Stock that may be included in the Demand Registration
and underwriting shall be allocated among the Eligible Holders who have
requested registration in accordance with the provisions of Section 4.1(f). No
Class A Common Stock excluded from the underwriting by reason of the managing
underwriter's marketing limitation shall be included in such Demand
Registration.
(iii) If any Eligible Holder participating
in a Demand Registration disapproves of the terms of the underwriting, such
person may elect to withdraw therefrom by written notice to the Company, the
managing underwriter and the other Eligible Holders. If by such withdrawal a
greater number of shares of Class A Common Stock held by other Eligible Holders
may be included in such Demand Registration (up to the maximum of any
limitation imposed by the managing underwriter), then the Company shall offer
to all Eligible Holders participating in the
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Demand Registration the right to include additional shares of Class A Common
Stock, which additional shares shall be allocated among the Eligible Holders
who have requested registration in accordance with the provisions of Section
4.1(f).
(e) Shelf Registration. If at the time of a
Demand Notice, the Company is eligible to file a registration statement on Form
S-3 (or any equivalent successor form), then Eligible Holders who hold at least
51% of the shares of Class A Common Stock which are to be included in a Demand
Registration may request that the Demand Registration be effected pursuant to a
shelf registration under Rule 415 of the Securities Act; provided, however,
that (i) if the Company shall reasonably determine, after consultation with an
independent investment banking firm of nationally recognized standing, that
such method of distribution would adversely affect the public market for the
Class A Common Stock, then the Company shall not be obligated to effect the
Demand Registration pursuant to such method of distribution, and (ii) during
the term of any such shelf registration, the Company may require from time to
time that the Eligible Holders refrain from selling pursuant to such
registration statement under the circumstances, in the manner and for the time
period described in Section 4.1(c).
(f) Allocation among Eligible Holders. If the
managing underwriter imposes a limit on the number of shares of Class A Common
Stock to be included in the Demand Registration, then each Eligible Holder
shall have the right to include in such Demand Registration up to its pro rata
share (based on the ratio that the number of shares of Class A Common Stock
proposed to be sold by it bears to the total number of shares of Class A Common
Stock proposed to be sold by all Eligible Holders who have elected to
participate in the Demand Registration) of the maximum number of shares
permitted by the managing underwriter to be included in the Demand Registration
(the "Maximum Amount"); provided, however, that, if and to the extent that
Continental is then subject to a regulatory requirement as a result of the U S
West Transaction that it reduce or eliminate its investment in the Company,
during the period ending on the date which is thirty months after the date of
the Company's initial Public Offering, Continental shall have the right (to the
extent it has elected to participate in such Demand Registration) to include in
the Demand Registration up to one-half of the Maximum Amount, and the
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balance of the Maximum Amount shall be allocated among the other participating
Eligible Holders pro rata as provided in the main clause of this sentence; and
provided, further, that, if and to the extent that Continental is then subject
to a regulatory requirement as a result of the U S West Transaction that it
reduce or eliminate its investment in the Company, during the twelve-month
period commencing on the date which is thirty months after the date of the
Company's initial Public Offering, Continental shall have the right (to the
extent it has elected to participate in such Demand Registration) to include in
the Demand Registration all of the Maximum Amount, and any portion of the
Maximum Amount that exceeds the number of shares that Continental elects to
include in the Demand Registration shall be allocated among the other
participating Eligible Holders pro rata as provided in the main clause of this
sentence.
(g) Inclusion of Shares by Company. If the
managing underwriter has not limited the number of shares of Class A Common
Stock to be underwritten or if the number of shares which the Eligible Holders
have requested to be registered is less than the Maximum Amount, then the
Company may include securities for its own account or for the account of others
in such Demand Registration if the managing underwriter so agrees and if the
number of shares of Class A Common Stock held by Eligible Holders which would
otherwise have been included in such Demand Registration and underwriting will
not thereby be limited. The inclusion of such shares shall be on the same
terms as the registration of shares held by the Eligible Holders. In the event
that the managing underwriter excludes some of the securities to be registered,
the securities to be sold for the account of the Company and any other holders
shall be excluded in their entirety prior to the exclusion of any shares of
Class A Common Stock of the Eligible Holders.
4.2 Lockup Agreements. Each Eligible Holder agrees not to
effect any public sale or other distribution of Class A Common Stock during the
seven days prior to the effective date of any Public Offering or Demand
Registration or during the ninety-day period beginning on such effective date
(except in either case as part of such Demand Registration and except that
Continental shall not be prohibited from effecting any such public sale or
other distribution during such period after the effective date of a Public
Offering not being made pursuant to a
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Demand Registration if it is required to sell within such period by any
regulatory requirement resulting from the U S West Transaction), unless the
managing underwriter otherwise agrees. The Company agrees not to effect any
public sale or other distribution of Class A Common Stock during the seven days
prior to the effective date of any Demand Registration or during the ninety-day
period beginning on such effective date (except in either case as part of such
Demand Registration or pursuant to registrations on Form S-8 or any successor
form), unless the managing underwriter otherwise agrees.
4.3 Registration Procedures. Whenever the Company is
obligated by the provisions of this Agreement to effect a registration of any
shares of Class A Common Stock under the Securities Act, the Company shall use
commercially reasonable efforts to effect such registration and the sale of the
shares of Class A Common Stock covered thereby in accordance with the intended
method of disposition thereof, and pursuant thereto the Company will as
expeditiously as possible:
(a) prepare and file with the SEC a registration
statement with respect to such shares and use all commercially reasonable
efforts to cause such registration statement to become and remain effective for
such period as may be reasonably necessary to effect the sale of such
securities, not to exceed ninety days;
(b) prepare and file with the SEC such amendments
and supplements to such registration statement and the prospectus used in
connection therewith as may be necessary to keep such registration statement
effective until the sooner to occur of the sale of all such shares or the
ninetieth day following the effective date of such registration statement and
comply with the provisions of the Securities Act with respect to the
disposition of all securities covered by such registration statement during
such period in accordance with the intended methods of disposition by the
sellers thereof set forth in such registration statement;
(c) furnish to each Eligible Holder participating
in such Demand Registration and the underwriters such number of copies of such
registration statement, each amendment and supplement thereto, the prospectus
included in such registration
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45
statement (including each preliminary prospectus) and such other documents as
such seller or underwriters may reasonably request in order to facilitate the
sale of the shares being sold;
(d) use all reasonable efforts to register or
qualify the shares being sold under such other securities or blue sky laws of
such jurisdictions as any seller reasonably requests and do any and all other
acts and things which may be reasonably necessary or advisable to enable such
seller to consummate the disposition in such jurisdictions of the shares owned
by such seller; provided, however, that the Company will not be required to (i)
qualify generally to do business in any jurisdiction where it would not
otherwise be required to qualify but for this subparagraph, (ii) conform its
capitalization or the composition of its assets to the securities or blue sky
laws of such jurisdictions or (iii) consent to general service of process in
any such jurisdiction;
(e) cause all such shares to be listed or
authorized for quotation on each securities exchange or automated quotation
system on which similar securities issued by the Company are then listed or
quoted;
(f) notify each seller of such shares, promptly
after it shall receive notice thereof, of the time when such registration
statement has become effective or a supplement to any prospectus forming a part
of such registration statement has been filed;
(g) notify each seller of such shares of any
request by the SEC for the amending or supplementing of such registration
statement or prospectus or for additional information;
(h) prepare and file with the SEC, promptly upon
the request of any seller of such shares, any amendments or supplements to such
registration statement or prospectus which, in the opinion of counsel selected
by the holders of a majority of the shares being registered, is required under
the Securities Act in connection with the distribution of shares by such
seller;
(i) prepare and promptly file with the SEC each
amendment or supplement to such registration statement or
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46
prospectus as may be necessary to correct any statements or omissions if, at
the time when a prospectus relating to such securities is required to be
delivered under the Securities Act, any event shall have occurred as the result
of which any such prospectus or any other prospectus as then in effect would
include an untrue statement of a material fact or omit to state any material
fact necessary to make the statements therein, in the light of the
circumstances in which they were made, not misleading; and
(j) advise each seller of such shares, promptly
after it shall receive notice or obtain knowledge thereof, of the issuance of
any stop order by the SEC suspending the effectiveness of such registration
statement or the initiation or threatening of any proceeding for such purpose
and promptly use commercially reasonable efforts to prevent the issuance of any
stop order or to obtain its withdrawal if such stop order should be issued.
4.4 Expenses. Each Eligible Holder that participates in a
Demand Registration (including a Demand Registration that is withdrawn prior to
becoming effective) shall pay all underwriting discounts and commissions and
any transfer taxes attributable to the sale of such Eligible Holder's shares,
the fees and expenses of counsel for such Eligible Holder, any other
out-of-pocket expenses of such Eligible Holder incurred in connection with its
participation in such Demand Registration and its pro rata share (based on the
ratio that the number of shares of Class A Common Stock to be sold by it bears
to the total number of shares of Class A Common Stock to be sold by all
Eligible Holders who have elected to participate in the Demand Registration) of
any out-of-pocket expenses incurred by the Company in connection with such
Demand Registration.
4.5 Preparation of Registration Statement. Each Eligible
Holder agrees to furnish to the Company such written information concerning
such Eligible Holder as may reasonably be requested by the Company which is
necessary in connection with any Demand Registration.
4.6 Indemnification.
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47
(a) In the event that the Company effects a
registration of any shares owned by an Eligible Holder, such Eligible Holder
shall indemnify and hold the Company, and each of its directors and officers
and each person, if any, who controls the Company within the meaning of the
federal securities laws (the "Company Indemnified Parties") harmless against
all losses, liabilities and expenses of any nature whatsoever which the Company
Indemnified Parties may incur as a result of or arising out of or based upon
any untrue statement or alleged untrue statement of a material fact contained
in the registration statement filed by the Company (including any prospectus
contained in such registration statement and any post-effective amendment or
supplement thereto) or as a result of or arising out of or based upon the
omission or alleged omission to state therein a material fact necessary in
order to make the statements therein, in the light of the circumstances under
which they were made, not misleading, which untrue statement or omission or
alleged untrue statement or omission was made in such registration statement
(including any prospectus contained in such registration statement and any
post-effective amendment or supplement thereto) in reliance upon and in
conformity with information furnished in writing by or behalf of such Eligible
Holder for inclusion therein; provided, however, that such Eligible Holder
shall not be liable to the extent that the losses, liabilities or expenses
arise out of or are based upon (i) the use by the Company or another Eligible
Holder of any prospectus after such time as the obligation of the Company to
keep the same effective and current has expired or (ii) the use by the Company
or another Eligible Holder of any prospectus after such time as such Eligible
Holder has advised the Company that the filing of a post-effective amendment or
supplement thereto is required with respect to any information contained in
such prospectus concerning such Eligible Holder, except such prospectus as so
amended or supplemented.
(b) In the event that the Company effects a
registration of any shares owned by an Eligible Holder, the Company shall
indemnify and hold such Eligible Holder, and each of its directors and officers
and each person, if any, who controls the Eligible Holder within the meaning of
the federal securities laws (the "Stockholder Indemnified Parties") harmless
against all losses, liabilities and expenses of any nature whatsoever which
such Stockholder Indemnified Parties may incur
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48
as a result of or arising out of or based upon any untrue statement or alleged
untrue statement of a material fact contained in the registration statement
filed by the Company (including any prospectus contained in such registration
statement and any post-effective amendment or supplement thereto) or as a
result of or arising out of or based upon the omission or alleged omission to
state therein a material fact required to be stated therein or necessary in
order to make the statements therein, in the light of the circumstances under
which they were made, not misleading, provided, however, that the Company will
not be liable in any such case to the extent that the losses, liabilities or
expenses arise out of or are based upon (i) any untrue statement or omission or
alleged untrue statement or omission made in such registration statement
(including any prospectus contained in such registration statement and any
post-effective amendment or supplement thereto) in reliance upon and in
conformity with information furnished in writing by or on behalf of such
Eligible Holder to the Company for inclusion therein in connection therewith,
(ii) the use of any prospectus after such time as the obligation of the Company
to keep the same effective and current has expired, or (iii) the use of any
prospectus after such time as the Company has advised the Eligible Holder that
the filing of a post-effective amendment or supplement thereto is required,
except such prospectus as so amended or supplemented.
(c) With respect to the indemnities provided above
in this Section 4.6, an indemnified party shall, with respect to any claim made
against such indemnified party, notify the indemnifying party in writing of the
nature of the claim as soon as practicable but not more than ten days after the
indemnified party shall have received notice of the assertion thereof before
any court or governmental authority. The failure by an indemnified party to
give notice as provided in the foregoing sentence shall not relieve the
indemnifying party of its obligations under this section except to the extent
that the failure results in the failure of actual notice to the indemnifying
party and the indemnifying party is damaged solely as a result of the failure
to give notice. Upon receipt of notice by an indemnifying party from an
indemnified party of the assertion of any such claim, the indemnifying party
shall employ counsel reasonably acceptable to the indemnified party and shall
assume the defense of such claim. The indemnified party shall
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49
have the right to employ separate counsel and to participate in (but not
control) any such action, but the fees and expenses of such counsel shall be
the expense of such indemnified party unless (i) the employment of counsel by
such indemnified party has been authorized by the indemnifying party, (ii) the
indemnified party shall have been advised by its counsel in writing that there
is a conflict of interest between the indemnifying party and the indemnified
party in the conduct of the defense of such action (in which case the
indemnifying party shall not have the right to direct the defense of such
action on behalf of the indemnified party) or (iii) the indemnifying party
shall not in fact have employed counsel to assume the defense of such action,
in each of which cases the fees and expenses of such counsel shall be at the
expense of the indemnifying party. An indemnifying party shall not be liable
for any settlement of an action effected without its written consent (which
consent shall not be unreasonably withheld). No indemnifying party will
consent to entry of any judgment or enter into any settlement which does not
include as an unconditional term thereof the giving by the claimant or
plaintiff to such indemnified party of a release from all liability in respect
of such action.
SECTION 5 ADDITIONAL AGREEMENTS
5.1 Confidentiality.
(a) Each Consenting Stockholder agrees that it
will not, directly or indirectly, without the prior written consent of the
Company, use or disclose to any person, firm or corporation, any information,
trade secrets, confidential customer information, technical data or know-how
relating to the products, processes, methods, equipment or business practices
of the Company or any of its Subsidiaries, except (a) to the extent any of the
foregoing is or becomes available to the public other than as a result of
disclosure by such Consenting Stockholder or any of its Affiliates or the
directors, officers, employees, agents, advisors and controlling persons of it
or any of its Affiliates, (b) as necessary to effect a transaction under and in
compliance with Section 3 or 4, (c) as may be required by law and (d) as any
Consenting Stockholder may disclose to its lenders, rating agencies and
business, legal and financial advisors. In the event any Consenting
Stockholder is required by applicable law or regulation or by legal process to
disclose any of the
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50
foregoing, it will provide the Company and other Consenting Stockholders with
prompt notice thereof to enable them to seek an appropriate protective order.
The covenants made by a Consenting Stockholder in this Section 5.1 shall
continue to apply for a period of two years after such Consenting Stockholder
ceases to be a Consenting Stockholder.
(b) At any time that the Continental Merger
Agreement or any other agreement with respect to a U S West Transaction is in
effect, and at any time after the consummation of the U S West Transaction, the
Company shall not provide to Continental, and Continental shall not request from
the Company, any strategic or confidential information about the Company or any
of its Subsidiaries or Affiliates (other than annual and quarterly financial
statements prepared by the Company); provided, however, that, notwithstanding
this Section 5.1(b), a director of the Company who was an Agreed Nominee
designated by the Consenting Stockholder Group that includes Continental shall
be entitled to receive any information that is furnished to the directors of the
Company (in their capacities as directors of the Company) to the extent that a
director of a Delaware corporation is entitled to such information under the
General Corporation Law of Delaware.
5.2 Issuance of Additional Class B Common Stock. Without
the consent of each Designating Stockholder, the Company shall not issue any
additional shares of Class B Common Stock other than shares of Class B Common
Stock issued:
(a) in connection with a stock split;
(b) as a stock dividend with respect to issued and
outstanding shares of Class B Common Stock; or
(c) pursuant to Section 3.4(a) of the
Reorganization Agreement.
5.3 Voting on Scope of Business Limitations. Continental
agrees that, so long as it holds any Class B Common Stock, it will vote in
favor of, or consent to, any proposal submitted for a vote of the holders of
the Class B Common Stock pursuant to Article IV.B.2.c of the Certificate of
Incorporation, if it is requested to do so by holders of a majority of the
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51
shares of Class B Common Stock held by Consenting Stockholders other than
Continental.
SECTION 6 MISCELLANEOUS
6.1 Expiration and Termination. This Agreement (other than
any provision for which a different term is specified) shall terminate if and
when the aggregate voting power of the Class B Common Stock represents less
than 30% of the aggregate voting power of all the outstanding Common Stock.
6.2 Assignment. The provisions of this Agreement shall be
binding upon and inure to the benefit of the parties and their respective
successors and permitted assigns. Notwithstanding the preceding sentence,
neither this Agreement nor any right, remedy, obligation or liability arising
hereunder or by reason hereof shall be assignable by the Company without the
prior written consent of all of the Consenting Stockholders, or by any other
party except as expressly provided herein.
6.3 Notices. All notices and other communications given or
made pursuant hereto shall be in writing and shall be deemed to have been duly
given or made as of the date delivered if delivered by hand, by telecopier
device (confirmed by hand delivery or overnight courier service) or by
overnight courier service to the parties at the following addresses (or at such
other address for a party as shall be specified by like notice):
if to the Company, to:
Teleport Communications Group Inc.
Xxx Xxxxxxxx Xxxxx, Xxxxx 000
Xxxxxx Xxxxxx, XX 00000-0000
Attention: Xxxxxx Xxxxxxxxxx, Chairman and Chief
Executive Officer
(with a copy similarly addressed to the
attention of the Teleport Communications Group
Inc. Legal Department)
with copies to each other Consenting Stockholder and to:
Xxxxx X. Xxxx, Esq.
Dow, Xxxxxx & Xxxxxxxxx
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52
0000 Xxx Xxxxxxxxx Xxx., X.X., Xxxxx 000
Xxxxxxxxxx, XX 00000-0000
if to Cox Teleport Partners, Inc., to:
Cox Teleport Partners, Inc.
c/x Xxx Enterprises, Inc.
0000 Xxxx Xxxxx Xxxxx
Xxxxxxx, XX 00000
Attention: Xxxx X. Xxxxxx
Senior Vice President and Chief Financial
Officer
with copies to:
Xxxxxx X. Xxxxxx, Esq.
Vice President, Legal Affairs
Xxx Enterprises, Inc.
0000 Xxxx Xxxxx Xxxxx
Xxxxxxx, XX 00000
and
Xxxxx X. Wild, Esq.
Dow, Xxxxxx & Xxxxxxxxx
0000 Xxx Xxxxxxxxx Xxx., X.X., Xxxxx 000
Xxxxxxxxxx, XX 00000-0000
if to TCI Teleport, Inc., to:
TCI Teleport, Inc.
Tele-Communications, Inc.
0000 XXX Xxxxxxx
Xxxxxxxxx, XX 00000-0000
Attention: Xxxxxx X. Xxxxxx
(with a copy similarly addressed to the
attention of the Tele-Communications,
Inc. Legal Department)
with a copy to:
Xxxxxxxxx X. Xxxxxxxxx, Esq.
Xxxxx & Xxxxx, L.L.P.
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53
000 Xxxxxxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
if to Comcast Teleport, Inc., to:
Comcast Teleport, Inc.
0000 Xxxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000-0000
Attention: General Counsel
if to Continental, to:
Continental Teleport, Inc.
c/o Continental Cablevision, Inc.
The Xxxxx Xxxxx
Xxxxx Xxxxx
Xxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxx
with copies to:
Xxxxxx X. Xxxxxxxx, Esq.
Director of Corporate Legal Affairs
Continental Cablevision, Inc.
The Xxxxx Xxxxx
Xxxxx Xxxxx
Xxxxxx, XX 00000
and
Xxxxxxx X. Xxxxx, Esq.
Xxxxxxxx & Worcester
Xxx Xxxx Xxxxxx Xxxxxx
Xxxxxx, XX 00000
6.4 Entire Agreement. As of the date hereof, this
Agreement, together with the Supplemental Agreement and the Reorganization
Agreement, represents the entire understanding of the parties with reference to
the matters set forth herein. This Agreement supersedes, from and after the
date hereof with respect to all periods commencing on or after the date hereof,
the Amended and Restated Stockholders' Agreement dated as of May 5,
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54
1993, as amended, among the Company and the Consenting Stockholders, and all
prior negotiations, discussions, correspondence, communications and prior
agreements among the parties relating to the subject matter herein. Neither
the Company nor any Consenting Stockholder shall have any rights after the date
of this Agreement under the Amended and Restated Stockholders' Agreement dated
as of May 5, 1993, as amended.
6.5 Amendment and Waiver. Subject to Section 3.8, this
Agreement may not be amended or modified in any respect except by an instrument
in writing signed by all of the parties hereto. Any failure of any party
hereto to comply with any obligation, covenant, agreement or condition
contained herein may be waived by the party or parties entitled to the benefits
thereof, but such waiver or failure to insist upon strict compliance with such
obligation, covenant, agreement or condition shall not operate as a waiver of,
or estoppel with respect to, any subsequent or other failure.
6.6 Governing Law. This Agreement shall be governed by,
and construed in accordance with, the laws of the State of Delaware (without
regard to its laws pertaining to conflicts of law) applicable to contracts
executed in and to be performed entirely in such state.
6.7 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 conditions and provisions of this Agreement shall
nevertheless remain in full force and effect so long as the economic or legal
substance of the transactions contemplated hereby is not affected in any manner
adverse to any party. Upon such determination that any term or other provision
is invalid, illegal or incapable of being enforced, the parties hereto 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 the end
that the transactions contemplated hereby are fulfilled to the greatest extent
possible.
6.8 Consent to Jurisdiction; Specific Performance.
(a) Each Consenting Stockholder hereby irrevocably
submits to the non-exclusive jurisdiction of any
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55
Delaware State or Federal court in any action or proceeding arising out of or
relating to this Agreement, and each Consenting Stockholder hereby irrevocably
agrees that all claims in respect of such action or proceeding may be heard and
determined in such Delaware State or Federal court. Each Consenting
Stockholder hereby irrevocably waives, to the fullest extent it may effectively
do so, the defense of an inconvenient forum to the maintenance of such action
or proceeding.
(b) Nothing in this Section 6.8 shall affect the
right of any party to serve legal process in any other manner permitted by law
or affect the right of any party to bring any action or proceeding against any
other party or its property in the courts of any other jurisdictions. The
consents to jurisdiction set forth in this Section 6.8 shall not constitute
general consents to service of process in the State of Delaware, shall have no
effect for any purpose except as provided in this Section 6.8 and shall not be
deemed to confer rights on any Person other than the parties to this Agreement.
(c) Without intending to limit the remedies
available to any of the parties hereto, each of the parties hereto acknowledges
and agrees that a violation by such party of any term of this Agreement will
cause the other parties hereto irreparable injury for which an adequate remedy
at law is not available. Therefore, the parties hereto agree that each such
party shall be entitled to an injunction, restraining order or other form of
equitable relief from any court of competent jurisdiction restraining any other
party hereto from committing any breach or threatened breach of, or otherwise
specifically to enforce, any provision of this Agreement.
6.9 Counterparts. This Agreement may be executed in one or
more counterparts, each of which shall be an original, but all of which taken
together shall constitute one and the same agreement.
6.10 Headings. The section headings used in this Agreement
are for reference purposes only and shall not affect the meaning or
interpretation of any term or provision of this Agreement.
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56
IN WITNESS WHEREOF, the parties have executed this Amended and
Restated Stockholders' Agreement as of the date and year first above written.
TELEPORT COMMUNICATIONS GROUP INC.
By:
---------------------------
Name:
-------------------------
Title:
------------------------
COX TELEPORT PARTNERS, INC.
By:
---------------------------
Name:
-------------------------
Title:
------------------------
TCI TELEPORT, INC.
By:
---------------------------
Name:
-------------------------
Title:
------------------------
COMCAST TELEPORT, INC.
By:
---------------------------
Name:
-------------------------
Title:
------------------------
CONTINENTAL TELEPORT, INC.
By:
---------------------------
Name:
-------------------------
Title:
------------------------
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