EXHIBIT 10.5
CONFORMED COPY
STOCKHOLDERS AGREEMENT
This Stockholders Agreement (this "AGREEMENT") is entered into as of
January 30, 2002 among UnitedGlobalCom, Inc., a Delaware corporation formerly
known as New UnitedGlobalCom, Inc. ("UNITED"), Liberty Media Corporation and
Liberty Global, Inc. ("LIBERTY GLOBAL"), each of which is a Delaware
corporation, Liberty UCOMA, LLC, a Delaware limited liability company ("LIBERTY
UCOMA"), and each of the Persons identified on the signature page hereof as a
Founder (the "FOUNDERS").
BACKGROUND
Pursuant to the Amended and Restated Agreement and Plan of
Restructuring and Merger, dated as of December 31, 2001 (the "MERGER
AGREEMENT"), among United, Liberty, Liberty Media International, Inc., a
Delaware corporation ("LMI"), Liberty Global, the Founders, UGC, Inc. a Delaware
corporation formerly known as UnitedGlobalCom, Inc. ("OLD UNITED") et al., the
Founders have acquired Beneficial Ownership of shares of Class B Stock of
United, and the Liberty Parties (including Liberty UCOMA, which is a
"Contributing Party" for purposes of the Merger Agreement) have acquired
Beneficial Ownership of shares of Class C Stock of United. As required by the
Merger Agreement the parties hereto are entering into this Agreement, which will
govern certain aspects of their ownership of Common Stock.
AGREEMENT
In consideration of the foregoing premises and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties agree as follows:
Section 1. CERTAIN DEFINITIONS. In this Agreement, the following terms
shall have the following meanings:
AFFILIATE. When used with reference to a specified Person, any Person
who directly or indirectly through one or more intermediaries, Controls, is
Controlled by, or is under common Control with, the Person specified, provided
that (i) no officer or director of a Person, or any Affiliate of such officer or
director, investing for his, her or its own account or otherwise acting in his,
her or its individual capacity, and no director of a Person, or any Affiliate of
such director, acting in his, her or its capacity as an officer, director,
trustee, representative or agent of a Person that is not an Affiliate of the
specified Person, and in each case not in concert with or at the direction or
request of such specified Person, shall be deemed to be an Affiliate of such
specified Person for purposes of this Agreement; (ii) no Liberty Party shall be
deemed to be an Affiliate of United and none of United and its Controlled
Affiliates shall be deemed to be an Affiliate of a Liberty Party and (iii) any
Person in which United, directly or indirectly, Beneficially Owns 50% or more of
the equity securities, without regard to voting power in the election of
directors, shall (without limiting the generality of this definition) be deemed
to be an Affiliate of United.
AGREEMENT. As defined in the preamble.
BENEFICIAL OWNERSHIP AND DERIVATIVE TERMS. As determined pursuant to
Rule 13d-3 and Rule 13d-5 under the Exchange Act and any successor regulation,
except that in determining Beneficial Ownership, without duplication, (i) equity
securities that may be acquired pursuant to
Rights to acquire equity securities that are exercisable more than sixty days
after a date shall nevertheless be deemed to be Beneficially Owned, and (ii)
except for purposes of the definition of "Change of Control," (x) Beneficial
Ownership, if any, arising solely as a result of being a party to a Transaction
Agreement or the Merger Agreement shall be disregarded, and (y) Beneficial
Ownership, if any, arising solely from being a member of a Group shall be
disregarded.
BOARD. The Board of Directors of United.
BUSINESS DAY. Any day other than Saturday, Sunday and a day on which
banks are required or permitted to close in Denver, Colorado or New York, New
York.
CAPITAL STOCK. Any and all shares, interests, participations, rights or
other equivalents (however designated) of corporate stock or partnership or
membership interests, whether common or preferred.
CHANGE OF CONTROL. Any (a) change in the direct or indirect record or
Beneficial Ownership of any of the equity securities of United, Old United or
any of their respective Affiliates, (b) merger, consolidation, statutory share
exchange or other transaction involving United, Old United or any of their
respective Affiliates or (c) change in the composition of the board of directors
or other governing body of United, Old United or any of their respective
Affiliates.
CHANGE OF CONTROL COVENANT. Any covenant, agreement or other provision
(excluding requirements imposed by Law) pursuant to which the occurrence or
existence of a Change of Control would result in a violation or breach of,
constitute (with or without due notice or lapse of time or both) or permit any
Person to declare a default or event of default under, give rise to any right of
termination, cancellation, amendment, acceleration, repurchase, prepayment or
repayment or to increased payments under, give rise to or accelerate any
material obligation (including any obligation to, or to offer to, repurchase,
prepay, repay or make increased payments) or result in the loss or modification
of any material right or benefit under, or result in any Lien or give any Person
the right to obtain any Lien on any material asset pursuant to, any Contract to
which United, Old United or any of their respective Affiliates is or becomes a
party or to which United, Old United, any of their respective Affiliates or any
of their respective material assets are or become subject or bound.
CLASS A STOCK. The Class A common stock, $0.01 par value per share, of
United.
CLASS B EVENT. As defined in the United Charter as in effect on the
date hereof.
CLASS B STOCK. The Class B common stock, $0.01 par value per share, of
United.
CLASS C STOCK. The Class C common stock, $0.01 par value per share, of
United.
CLOSING. As defined in the Merger Agreement.
COMMON STOCK. The Class A Stock, the Class B Stock and the Class C
Stock.
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CONTRACT. Any note, bond, indenture, debenture, security agreement,
trust agreement, Lien, mortgage, lease, agreement, contract, license, franchise,
permit, guaranty, joint venture agreement, or other agreement, instrument,
understanding, commitment or obligation, oral or written.
CONTROLLED AFFILIATE. When used with reference to a specified Person,
an Affiliate of such Person that such Person directly, or through one or more
intermediaries, Controls; PROVIDED THAT, (a) none of United and its Controlled
Affiliates shall be deemed to be a Controlled Affiliate of a Liberty Party and
(b) any Person in which United, directly or indirectly, Beneficially Owns 50% or
more of the equity securities, without regard to voting power in the election of
directors, shall (without limiting the generality of this definition) be deemed
to be a Controlled Affiliate of United.
CONTROL AND DERIVATIVE TERMS. The possession, directly or indirectly,
of the power to direct or cause the direction of the management and policies of
another Person, whether through the ownership of voting securities, by contract
or otherwise.
CONTROL PERSON. Each of (1) the Chairman of the Board of Liberty, (2)
the President and Chief Executive Officer of Liberty, (3) the Executive Vice
President and Chief Operating Officer of Liberty, (4) each of the directors of
Liberty, and (5) the respective family members, estates and heirs of each of the
persons referred to in clauses (1) through (4) above and any trust or other
investment vehicle for the primary benefit of any of such persons or their
respective family members or heirs. "Family members" for this purpose means the
parents, descendants, step children, step grandchildren, nieces and nephews, and
spouse of the specified person.
CONTROLLING PRINCIPALS. Founders who are Principals and who hold a
majority of the aggregate voting power of the Equity Securities held by the
Founders who are Principals.
CONVERSION EVENT. As defined in the United Charter as in effect on the
date hereof.
CURRENT BONDS. As defined in the United Charter as in effect on the
date hereof.
DESIGNATED PURCHASER. As defined in Section 4(b).
DRAG-ALONG NOTICE. As defined in Section 8(a).
DRAG-ALONG RIGHTS The rights granted to the Founders pursuant to
Sections 8(a) and 8(b) to require the Liberty Parties to Transfer Common Stock.
EQUITY SECURITIES. The Common Stock and any other securities hereafter
issued by United that are entitled to vote generally in the election of
directors.
EXCHANGE ACT. The Securities Exchange Act of 1934, as amended, and the
rules and regulations thereunder.
EXCHANGE AGREEMENT. That certain Exchange Agreement dated as of the
date hereof among United and certain of the Founders.
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EXERCISING HOLDERS. As defined in Section 7(b).
FIRST OFFER NOTICE. A Liberty Offer Notice or Founder Offer Notice.
FOUNDER ACCEPTANCE NOTICE. As defined in Section 4(a).
FOUNDER ELECTION PERIOD. As defined in Section 5(a).
FOUNDER OFFER NOTICE. As defined in Section 5(a).
FOUNDER OFFER PRICE. As defined in Section 5(a).
FOUNDER OFFERED SHARES. As defined in Section 5(a).
FOUNDER PARTY: Each Founder and each Permitted Transferee of a Founder
that hereafter becomes bound by or who is required to become bound by this
Agreement for so long as such person is or is required to be so bound.
FOUNDERS. (i) As defined in the preamble and (ii) any person who (x)
immediately prior to the Closing was a member of the senior management of Old
United or a member of the Board of Directors of Old United, (y) owned shares of
Old United Class B Stock immediately prior to the Closing and Class B Stock
thereafter and (z) is designated as an additional Founder in the sole discretion
of the Controlling Principals, provided that such person executes and delivers
to United and the Liberty Parties a counterpart of this Agreement and to United
a counterpart of the Voting Agreement, agreeing to be bound by the provisions
hereof and thereof applicable to the Founders. A Person identified by clause (i)
or (ii) of this definition as a Founder will cease to be a Founder at such time
as such Person no longer Beneficially Owns any Class B Stock.
FOUNDERS AGREEMENTS. Means (a) the Founders Agreement dated as of the
date hereof among the Founders relating to United and (b) the Founders Agreement
dated as of the date hereof among certain Founders relating to Old United.
GOVERNMENTAL APPROVAL. Any notice to, filing with, or approval or
consent of a Government Authority required by applicable law with respect to any
action, including without limitation, the expiration or termination of any
applicable waiting period under the HSR Act.
GOVERNMENTAL AUTHORITY. Any U.S. federal, state or local or any foreign
court, governmental department, commission, authority, board, bureau, agency or
other instrumentality.
GROUP. As defined in Section 13(d) of the Exchange Act and the rules
and regulations thereunder, but the existence of the Transaction Agreements and
the Merger Agreement shall be disregarded in determining whether a Group exists.
HSR ACT. The Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as
amended.
JUDGMENT. Any order, writ, injunction, award, judgment, ruling or
decree of any Governmental Authority.
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LAW. Any U.S. federal, state or local or any foreign statute, code,
ordinance, decree, rule, regulation or general principle of common or civil law
or equity.
LIBERTY. Liberty Media Corporation, a Delaware corporation, and any
successor (by merger, consolidation, transfer or otherwise) to all or
substantially all of its assets; provided that in the event a Transferee Parent
becomes the Beneficial Owner of all or substantially all of the Equity
Securities then Beneficially Owned by Liberty as to which Liberty has
dispositive control, the term "Liberty" shall mean such Transferee Parent and
any successor (by merger, consolidation, transfer or otherwise) to all or
substantially all of its assets.
LIBERTY ACCEPTANCE NOTICE. As defined in Section 5(a).
LIBERTY GLOBAL. As defined in the preamble.
LIBERTY OFFER NOTICE. As defined in Section 4(a).
LIBERTY OFFER PRICE. As defined in Section 4(a).
LIBERTY OFFERED SHARES. As defined in Section 4(a).
LIBERTY PARTIES. Liberty, Liberty Global and Liberty UCOMA and
including any Permitted Transferee of a Liberty Party who hereafter becomes
bound by or who is required to become bound by this Agreement for so long as
such Person is or is required to be so bound. Liberty Global and any such
Permitted Transferee will each cease to be a Liberty Party at such time as such
Person is no longer a Controlled Affiliate of Liberty.
LIBERTY PARTY EQUITY SECURITIES. As defined in the Standstill
Agreement.
LIBERTY PURCHASE PERIOD. As defined in Section 5(c).
LIBERTY UCOMA. As defined in the preamble.
LICENSE. Any license, franchise, authorization, permit, certificate,
variance, exemption, concession, consent, lease, right of way, easement,
instrument, order or approval domestic or foreign, of any Governmental
Authority.
LIEN. Any mortgage, pledge, lien, encumbrance, charge, or security
interest.
LMI. As defined under "Background" on the first page of this Agreement.
MERGER AGREEMENT. As defined under "Background" on the first page of
this Agreement.
NEW UNITED COVENANT AGREEMENT. The Agreement Regarding Additional
Covenants as of the date hereof among United and the Liberty Parties.
NO WAIVER AGREEMENT. That certain No Waiver Agreement dated as of the
date hereof among Liberty, LMI and United.
OLD UNITED. As defined under "Background" on the first page of this
Agreement.
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OLD UNITED AGREEMENT. That certain Agreement dated as of the date
hereof among Old United and the Liberty Parties.
OLD UNITED CLASS B STOCK. The Class B Common Stock, par value $0.01 per
share, of Old United.
OUTSIDE CLOSING DATE. As defined in Section 4(b).
PERMITTED TRANSFEREES. In the case of a Founder (the "SPECIFIED
FOUNDER"), (a) any other Founder, (b) such specified Founder's parents,
descendants, step children, step grandchildren, nieces and nephews, and spouses
of any of the foregoing, (c) such specified Founder's heirs, devisees and
legatees, and (d) partnerships and entities that are primarily owned by, and
trusts that are primarily for the benefit of, any of the Persons designated in
clauses (a), (b) and (c) (but only for so long as such relationship exists). In
the case of a Permitted Transferee of a Founder, such Founder or another
Permitted Transferee of such Founder. In the case of the Liberty Parties,
Liberty and any Person Controlled by Liberty.
PERSON. Person shall mean any individual, firm, corporation,
partnership, limited liability company, trust, joint venture, or other entity,
and shall include any successor (by merger or otherwise) of such entity.
PRINCIPALS. Xxxxxx X. Xxxxxxx, Xxxxxx Xxxxxxxx, Xxxxxx Xxxxxxxx,
Xxxxxxxx Investments, Ltd (so long as it is controlled by Xxxxxx or Xxxxxx
Xxxxxxxx), Xxxx X. Xxxxxxxxx, X. Xxxxxxxxx Holdings, Co. (so long as it is
controlled by Xxxx X. Xxxxxxxxx), and Xxxx X. Xxxxxxxxx.
PROPORTIONATE NUMBER OF SHARES. The Proportionate Number of Shares of
the Liberty Parties shall be the number of shares of Common Stock Beneficially
Owned by the Liberty Parties as to which they have dispositive power multiplied
by a fraction, the numerator of which is the number of shares of Class B Stock
proposed to be transferred by the Founder Parties as set forth in a Drag-Along
Notice and the denominator of which is the number of shares of Class B Stock
Beneficially Owned in the aggregate by the Founders and their Permitted
Transferees.
REGISTRATION RIGHTS AGREEMENT. That certain Registration Rights
Agreement dated as of the date hereof among United and the Liberty Parties.
RESTRICTION. With respect to any capital stock, equity interest or
security, any voting or other trust or agreement, option, warrant, preemptive
right, right of first offer, right of first refusal, escrow arrangement, proxy,
buy-sell agreement, power of attorney or other Contract, any License or Judgment
that, conditionally or unconditionally, (a) grants to any Person the right to
purchase or otherwise acquire, or obligates any Person to sell or otherwise
dispose of or issue, or otherwise results or, whether upon the occurrence of any
event or with notice or lapse of time or both or otherwise, may result in any
Person acquiring, (i) any of such capital stock or other equity interest or
security; (ii) any of the proceeds of, or any distributions paid or that are or
may become payable with respect to, any of such capital stock or other equity
interest or security; or (iii) any interest in such capital stock or other
equity interest or security or any such proceeds or distributions; (b) restricts
or, whether upon the occurrence of any event or with notice or lapse of time or
both or otherwise, is reasonably likely to restrict the transfer or voting of,
or the exercise of any rights or the enjoyment of any benefits arising by reason
of ownership of, any such capital
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stock or other equity interest or security or any such proceeds or
distributions; or (c) creates or, whether upon the occurrence of any event or
with notice or lapse of time or both or otherwise, is reasonably likely to
create a Lien or purported Lien affecting such capital stock or other equity
interest or security, proceeds or distributions.
RIGHTS. When used with respect to a Specified Person, securities of
such Person (which may include equity securities) that (contingently or
otherwise) are exercisable, convertible or exchangeable for or into equity
securities of such Person (with or without consideration) or that carry any
right to subscribe for or acquire equity securities or securities exercisable,
convertible or exchangeable for or into equity securities of such Person.
SIXTY-DAY ELECTION PERIOD. As defined in Section 4(a).
SPECIFIED FOUNDER. As defined in the definition of " Permitted
Transferees".
STANDSTILL AGREEMENT. That certain Standstill Agreement dated as of the
date hereof among United and the Liberty Parties.
SUBJECT SHARES. Shares of Class B Stock and, prior to June 25, 2010,
shares of Class C Stock.
TAG-ALONG GROUP. As defined in Section 7(b).
TAG-ALONG NOTICE. As defined in Section 7(a).
TAG-ALONG RIGHT. As defined in Section 7(b).
TRANSACTION AGREEMENTS. This Agreement, the Voting Agreement, the
Standstill Agreement, the New United Covenant Agreement, the Registration Rights
Agreement, the No Waiver Agreement, the Exchange Agreement, the United Charter,
the United Bylaws, the UPC Release, the Founders Agreements and the Old United
Agreement.
TRANSFER. Any sale, exchange, pledge (except a pledge in compliance
with this Agreement and the Standstill Agreement) or other transfer, direct or
indirect, of Class B Stock or Class C Stock or, when the context requires, Class
A Stock (including through the relinquishment of control of a Person holding
shares of such stock), provided, however, that none of the following shall
constitute a Transfer: (i) a conversion of Class C Stock into Class B Stock or
of Class B Stock or Class C Stock into Class A Stock, (ii) any transfer pursuant
to any tender or exchange offer approved by a majority of the Board, (iii) a
transfer by operation of law in connection with any merger, consolidation,
statutory share exchange or similar transaction involving United, (iv) a
transfer pursuant to a plan of liquidation of United that has been approved by a
majority of the Board or (v) in the case of Liberty, any transaction or series
of transactions involving the direct or indirect transfer (or relinquishment of
control) of a Person that holds Liberty Party Equity Securities ("TRANSFERRED
PERSON"), if (x) immediately after giving effect to such transaction or the last
transaction in such series, voting securities representing at least a majority
of the voting power of the outstanding voting securities of such Transferred
Person or its successor in such transaction or any ultimate parent entity
(within the meaning of the HSR Act) of such Transferred Person or its successor
(a "TRANSFEREE PARENT") are
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Beneficially Owned by Persons who prior to such transaction were Beneficial
Owners of a majority of, or a majority of the voting power of, the outstanding
voting securities of Liberty (or of any publicly traded class or series of
voting securities of Liberty designed to track the economic performance of a
specified group of assets or businesses) or who are Control Persons or any
combination of the foregoing and (y) such Transferee Parent becomes a party to
this Agreement and the Standstill Agreement with the same rights and obligations
as Liberty.
TRANSFEREE PARENT. As defined in the definition of "Transfer."
TRANSFEROR. As defined in Section 7(a).
TRANSFERRED PERSON. As defined in the definition of "Transfer".
TWO-BUSINESS DAY ELECTION PERIOD. As defined in Section 4(a).
UNITED. As defined in the preamble
UNITED BYLAWS. The Bylaws of United, as such Bylaws may be amended from
time to time in accordance with the United Charter, such Bylaws and the New
United Covenant Agreement.
UNITED CHARTER. The Restated Certificate of Incorporation of United as
filed with the Secretary of State of the State of Delaware on December 31, 2001,
as it may be amended from time to time.
UNITED/NEW UNITED MERGER. As defined in the Merger Agreement.
UPC. United Pan-Europe Communications, N.V., a company organized under
the laws of The Netherlands.
UPC CONVERTIBLE SHARES. As defined in Section 10(c).
UPC ORDINARY SHARES. As defined in Section 10(c).
UPC RELEASE. Section 3 and Exhibit A of that certain Release, dated as
of February 22, 2001, among UPC, Old United, Liberty and LMI (but no other
provisions of such Release).
VOTING AGREEMENT. That certain Voting Agreement dated as of the date
hereof among United and the Founders.
Section 2. ACTION BY FOUNDERS OR LIBERTY PARTIES.
Whenever this Agreement contemplates any action to be taken by the
Founder Parties, each of the Founder Parties shall act at the direction of
Controlling Principals and Controlling Principals shall be (and hereby are)
authorized in such circumstances to take any contemplated action on behalf of
all of the Founder Parties. The Liberty Parties and United will be entitled to
rely, as binding on all the Founders, on any instrument signed by Controlling
Principals and on any representation by a Principal that such Principal is a
Controlling Principal or by a group of
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Principals that such Principals are Controlling Principals. Whenever this
Agreement contemplates any action to be taken by the Liberty Parties or their
Affiliates, each such party shall act at the direction of Liberty and Liberty
shall be (and hereby is) authorized to take any contemplated action on behalf of
all of the Liberty Parties. The Founder Parties and United will be entitled to
rely, as binding on all the Liberty Parties, on any instrument signed by
Liberty.
Section 3. LIMITATION ON CONVERSION OF CLASS C STOCK; OTHER COVENANTS.
(a) Prior to a Conversion Event, the Liberty Parties will not convert
shares of Class C Stock into Class A Stock if, after giving effect to such
conversion, the aggregate voting power of the shares of Class A Stock and Class
B Stock then owned by the Liberty Parties would (x) exceed 50% of the combined
voting power of the shares of Class A Stock and Class B Stock then outstanding,
or (y) constitute a greater percentage of the combined voting power of the
shares of Class A Stock and Class B Stock then outstanding than the percentage
represented by the aggregate voting power of the shares of Class A Stock and
Class B Stock then Beneficially Owned by the Founder Parties, provided that the
limitations set forth in clauses (x) and (y) on the Liberty Parties' right to
convert the Class C Stock (i) will terminate if the aggregate voting power of
the shares of Class A Stock and Class B Stock Beneficially Owned by any other
Person or Group (other than a Group that is controlled by one or more
Controlling Principals and consists solely of Founder Parties) exceeds either of
such percentages and (ii) will not apply to any conversion of Class C Stock into
Class A Stock in connection with a sale or hedging transaction or to any related
pledge involving Class A Stock.
(b) Without the prior written consent of Liberty, which consent may be
granted or withheld in Liberty's sole discretion, United will not take any
action and will not permit any action to be taken on its behalf, and will use
its best commercially reasonable efforts to prevent any action from being taken
by or on behalf of any of its Affiliates, that would result in United, Old
United or any of their respective Affiliates being subject to or bound by any
Change of Control Covenant, unless any Change of Control involving or caused by
the action of Liberty, Liberty UCOMA, Liberty Global or any of their respective
Affiliates (other than a transfer by any of the foregoing to an unaffiliated
third party of Control of United, if such Control is obtained in the future) is
exempted from the application and effects of such Change of Control Covenant.
United will not be deemed to be in breach of the foregoing as a result of its or
its Affiliates entering into or maintaining in the ordinary course of business a
License granted by a Governmental Authority that includes a Change of Control
Covenant provided that (i) such License is of the kind and nature that
customarily requires approval of the Governmental Authority granting the same
for a Change of Control, (ii) the applicable Change of Control Covenant includes
only terms customarily imposed by such Governmental Authority in similar
circumstances, (iii) the maximum penalty for breach of such Change of Control
Covenant is termination of the applicable License, and (iv) United used its best
commercially reasonable efforts to obtain the exemption from the application and
effects of such Change of Control Covenant contemplated by the preceding
sentence. Without the prior written consent of Liberty, which consent may be
granted or withheld in Liberty's sole discretion, United will not take any
action or permit any action to be taken that would, or fail to take any action
or permit any action to be omitted where such failure or omission would, extend
or perpetuate the applicability of any Change of Control Covenant in effect as
of May 25, 2001 under the Current Bonds beyond the maturity date in effect as of
May 25, 2001 of the Current Bonds to which they relate. United will
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use its best commercially reasonable efforts to take such actions as will cause
the conditions necessary to permit the conversion in full of the Class C Stock
into Class B Stock to be satisfied.
(c) If, following the occurrence of a Class B Event, any vote or other
action of United's stockholders is required in connection with the acquisition
of shares of Class B Stock by a Liberty Party or any of its Affiliates pursuant
to their purchase rights under the Standstill Agreement, United and the Founders
and their Permitted Transferees will use their respective best commercially
reasonable efforts to cause such vote or other action to be taken, including
calling a special meeting of stockholders or soliciting a written consent of
stockholders, and voting all Equity Securities held by such Persons at such
meeting in person or by proxy or signing a written consent of stockholders in
lieu of a meeting.
Section 4. FOUNDERS' RIGHT OF FIRST OFFER.
(a) No Liberty Party shall Transfer any Subject Shares to any Person
other than a Permitted Transferee in compliance with Section 6, or convert any
Subject Shares to Class A Stock, unless, prior to such Transfer or conversion,
the Liberty Parties first offer to sell the Subject Shares proposed to be
Transferred or converted (the "LIBERTY OFFERED SHARES") to the Founders by
delivering a written notice (a "LIBERTY OFFER NOTICE") to the Founders. The
Liberty Offer Notice shall state the number and class of Liberty Offered Shares
and the price per share (the "LIBERTY OFFER PRICE") at which such Liberty Party
is offering the Liberty Offered Shares to the Founders and shall constitute a
binding, irrevocable offer, subject to the provisions of this Section 4, to sell
the Liberty Offered Shares to the Founders and any Designated Purchaser (as
defined below) at the Liberty Offer Price. Prior to the occurrence of a
Conversion Event, the number of Liberty Offered Shares proposed to be
Transferred, when taken together with the aggregate number of shares of Class A
Stock, received upon conversion of Subject Shares, Beneficial Ownership of which
shares of Class A Stock was theretofore Transferred by a Liberty Party, other
than to a Permitted Transferee or a Founder Party or Designated Purchaser or to
United, shall not exceed the sum of the total number of shares of Class A Stock
of which the Liberty Parties acquired Beneficial Ownership after the date hereof
(from Persons other than United (including upon the conversion of Class C Stock)
or the Founder Parties) plus the total number of shares of Class A Stock
received in the United/New United Merger upon conversion of shares of Class A
Common Stock, par value $0.01 per share, of Old United acquired by the Liberty
Parties after December 3, 2001. In order to accept the offer of the Liberty
Offered Shares, Controlling Principals must deliver a written notice of
acceptance (a "FOUNDER ACCEPTANCE NOTICE") to the Liberty Parties agreeing to
purchase all, but not less than all, of the Liberty Offered Shares at the
Liberty Offer Price. In order to be effective, a Founder Acceptance Notice must
(i) be signed by Controlling Principals (either personally or by a duly
authorized agent), (ii) designate which Founders and Designated Purchasers are
to purchase the Liberty Offered Shares and the number of shares to be purchased
by each such Founder and Designated Purchaser and (iii) be delivered to the
Liberty Parties no later than 5:00 p.m. Denver, Colorado time on the last day of
(A) if such Liberty Offer Notice relates to a number of Subject Shares, the
conversion of which to Class A Stock would not reduce the aggregate voting power
for the election of directors of Equity Securities subject to this Agreement
below 80% of the total voting power for the election of directors of all Equity
Securities outstanding, in each case calculated as if all Class C Stock had been
converted to Class B Stock, the two-Business Day period (a "TWO-BUSINESS DAY
ELECTION PERIOD") following the date the Liberty Offer Notice is given; or (B)
in all
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other cases, the sixty-day period (a "SIXTY-DAY ELECTION PERIOD") following the
date the Liberty Offer Notice is given. A duly completed and delivered Founder
Acceptance Notice shall constitute a binding irrevocable agreement by the
Controlling Principals signing such notice and the Founders and Designated
Purchasers named therein to purchase the Liberty Offered Shares at the Liberty
Offer Price as provided in this Section 4. If a Founder Acceptance Notice
meeting the requirements specified above is not delivered within the specified
election period, then the Founders will be deemed to have rejected the offer of
the Liberty Offered Shares.
(b) Upon delivery of a Founder Acceptance Notice meeting the
requirements specified above within the specified election period, the Liberty
Parties will be obligated to sell, and the Controlling Principals and the
Founders and Designated Purchasers named in such Founder Acceptance Notice will
be jointly and severally obligated to buy, all of the Liberty Offered Shares at
the Liberty Offer Price. The closing of such purchase and sale shall occur at
such time and place as the parties thereto may agree, but in any event no later
than (i) the fifth Business Day after the Liberty Offer Notice is given, in the
case of a Liberty Offer Notice with a Two-Business Day Election Period, or (ii)
the 180th day after the Liberty Offer Notice is given, in the case of a Liberty
Offer Notice with a Sixty-Day Election Period (each, an "OUTSIDE CLOSING DATE").
The purchase and sale will be without representation or warranty, except that
each party to the transaction will represent and warrant that it has all
requisite power and authority to enter into the transactions, and the Liberty
Parties transferring the shares will represent and warrant that they are
transferring valid title to such shares and such shares are being transferred
free and clear of any Lien or Restriction other than those created by this
Agreement, any other Transaction Agreement or the parties taking delivery of
such shares. Payment of the purchase price shall be in immediately available
United States Dollars. A "DESIGNATED PURCHASER" means any Person other than a
Founder designated in a Founder Acceptance Notice as a purchaser of Liberty
Offered Shares. As a condition to acquiring any Liberty Offered Shares pursuant
to this Section 4, a Designated Purchaser must execute and deliver an
instrument, in form and substance reasonably acceptable to United and the
Liberty Parties, by which such Designated Purchaser agrees (i) to be subject to
all of the obligations of a Founder Party under this Agreement and the Voting
Agreement but, except for a Designated Purchaser that is a Permitted Transferee,
to have none of the rights of a Founder Party hereunder or thereunder and (ii)
in the case of a Designated Purchaser that is not a Permitted Transferee, to be
subject to all of the obligations of a Liberty Party under the Standstill
Agreement but to have none of the rights of a Liberty Party thereunder. Without
limiting the generality of the foregoing, except for the imposition of the
foregoing obligations on a Designated Purchaser, no Designated Purchaser that is
not a Permitted Transferee will be considered a Founder Party for any purpose
hereunder, including the termination provisions set forth in Section 13.
Immediately following the Transfer of Liberty Offered Shares to a Founder or
Designated Purchaser pursuant to this Section 4, such shares shall be converted
to Class A Stock, or, if (i) then permissible under the United Charter, or (ii)
such conversion would not result in a "Change of Control" pursuant to the
Current Indentures as then in effect, Class B Stock, provided that if the
Liberty Offered Shares are Class B Stock, such shares need not be converted into
Class A Stock.
(c) If (i) the Founders reject or are deemed to reject the offer of the
Liberty Offered Shares set forth in a Liberty Offer Notice, or (ii) the Founders
accept such offer but the purchase and sale of all of the Liberty Offered Shares
does not occur by the applicable Outside Closing Date for any reason other than
the Liberty Parties' failure to comply with their respective
11
obligations under Section 4(b), then the Liberty Parties shall be free to
Transfer the Liberty Offered Shares (or, if applicable, convert the Liberty
Offered Shares into shares of Class A Stock); provided that, in the case of a
Transfer:
(A) such Liberty Offered Shares are converted into Class
A Stock prior to the Transfer, and
(B) in the case of a Liberty Offer Notice with a
Sixty-Day Election Period, the Transfer occurs at a
price per share equal to or higher than the Liberty
Offer Price within 60 days after the applicable of
(x) the last day of the Sixty-Day Election Period, if
the offer set forth in the Liberty Offer Notice was
rejected or deemed rejected or (y) the applicable
Outside Closing Date, if the closing of the sale of
the Liberty Offered Shares pursuant to the Liberty
Offer Notice did not occur by such date; or
(C) in the case of a Liberty Offer Notice with a
Two-Business Day Election Period, the Transfer either
occurs in accordance with Clause (B) above or, if the
Liberty Offer Price specified in the applicable
Liberty Offer Notice was the market price of the
Class A Stock (or, if the Class B Stock is then
publicly traded, the Class B Stock) at the time of
such Liberty Offer Notice, the Transfer occurs at a
price not less than the then current market price of
the Class A Stock (whether higher or lower than the
Liberty Offer Price) within 15 days after the
applicable of (x) the last day of the Two-Business
Day Election Period, if the offer set forth in the
Liberty Offer Notice was rejected or deemed rejected
or (y) the applicable Outside Closing Date, if the
closing of the sale of the Liberty Offered Shares
pursuant to the Liberty Offer Notice did not occur by
such date.
Any purported Transfer of Subject Shares in violation of this Section 4
shall be void and ineffective as against both the transferring Liberty Party and
the proposed transferee, and any purported conversion of Subject Shares in
violation of this Section 4 shall be void and ineffective.
Section 5. LIBERTY PARTIES' RIGHT OF FIRST OFFER.
(a) No Founder Party shall Transfer any Subject Shares to any Person
other than a Permitted Transferee in compliance with Section 6 or convert any
Subject Shares to Class A Stock, unless, prior to such Transfer or conversion,
such Founder Party first offers to sell the Subject Shares proposed to be
Transferred or converted (the "FOUNDER OFFERED SHARES") to the Liberty Parties
by delivering a written notice (a "FOUNDER OFFER NOTICE") to the Liberty
Parties. The Founder Offer Notice shall state the number and class of Founder
Offered Shares and the price per share (the "FOUNDER OFFER PRICE") at which such
Founder Party is offering the Founder Offered Shares to the Liberty Parties and
shall constitute a binding, irrevocable offer, subject to the provisions of this
Section 5, to sell the Founder Offered Shares to the Liberty Parties at the
Founder Offer Price. In order to accept the offer of the Founder Offered Shares,
Liberty must deliver a written notice of acceptance (a "LIBERTY ACCEPTANCE
NOTICE") to the offering Founder Party agreeing to purchase, or to cause another
Liberty Party or a Permitted Transferee to
12
purchase, all, but not less than all, of the Founder Offered Shares at the
Founder Offer Price. In order to be effective, a Liberty Acceptance Notice must
(i) be signed by Liberty and (ii) be delivered to the offering Founder Party no
later than 5:00 p.m. Denver, Colorado time on the last day of the thirty day
period (a "FOUNDER ELECTION PERIOD") following the date the Founder Offer Notice
is given. A duly completed and delivered Liberty Acceptance Notice shall
constitute a binding irrevocable agreement by Liberty to purchase, or to cause
another Liberty Party or a Permitted Transferee to purchase, the Founder Offered
Shares at the Founder Offer Price as provided in this Section 5. If a Liberty
Acceptance Notice meeting the requirements specified above is not delivered
within the specified election period, then the Liberty Parties will be deemed to
have rejected the offer of the Founder Offered Shares.
(b) Upon delivery of a Liberty Acceptance Notice meeting the
requirements specified above within the specified election period, the offering
Founder Party will be obligated to sell, and Liberty will be obligated to
purchase, or to cause another Liberty Party or a Permitted Transferee to
purchase, all of the Founder Offered Shares at the Founder Offer Price. The
closing of such purchase and sale shall occur at such time and place as the
parties thereto may agree, but in any event no later than the 60th day after the
Founder Offer Notice is given (provided that such 60 day period may be extended
for up to an additional 90 days to the extent that the acquisition of the
Founder Offered Shares requires any Governmental Approval that has not been
obtained during that period). The purchase and sale will be without
representation or warranty, except that each party to the transaction will
represent and warrant that it has all requisite power and authority to enter
into the transactions, and the Founder Party transferring the shares will
represent and warrant that it is transferring valid title to such shares and
such shares are being transferred free and clear of any Lien or Restriction
other than those created by this Agreement, any other Transaction Agreement or
the parties taking delivery of such shares. Payment of the purchase price shall
be in immediately available United States Dollars. As a condition to acquiring
any Founder Offered Shares, a Permitted Transferee of a Liberty Party that is
not then a party to this Agreement must execute and deliver an instrument, in
form and substance reasonably acceptable to United and the Controlling
Principals, by which such Permitted Transferee agrees to be subject to all of
the rights and obligations of a Liberty Party under this Agreement and the
Standstill Agreement.
(c) If (i) the Liberty Parties reject or are deemed to reject the offer
of the Founder Offered Shares set forth in a Founder Offer Notice, or (ii) the
Liberty Parties accept such offer but the purchase and sale of all of the
Founder Offered Shares does not occur within the time period specified in
Section 5(b) (as extended, if applicable, the "LIBERTY PURCHASE PERIOD") for any
reason other than the Founders' failure to comply with their respective
obligations under Section 5(b), then the Founder Party delivering the Founder
Offer Notice shall be free to Transfer the Founder Offered Shares (or, if
applicable, convert the Founder Offered Shares into shares of Class A Stock),
provided that, in the case of a Transfer:
(A) the Transfer occurs at a price per share equal to or
higher than the Founder Offer Price within 60 days
after the applicable of (x) the last day of the
Founder Election Period if the offer set forth in the
Founder Offer Notice was rejected or deemed rejected
or (y) the last day of the Liberty Purchase Period if
the closing of the sale of the Founder Offered Shares
pursuant to the Founder Offer Notice did not occur by
such date, and
13
(B) unless the aggregate number of Founder Offered Shares
then being Transferred by all Founder Parties to the
same transferee represents at least a majority of the
aggregate amount of Subject Shares Beneficially Owned
by all Founders and their Permitted Transferees and
Designated Purchasers, such Founder Offered Shares
are converted into shares of Class A Stock prior to
the Transfer.
Any purported Transfer of Subject Shares in violation of this Section 5
shall be void and ineffective as against both the transferring Founder Party and
the proposed transferee, and any purported conversion of Subject Shares in
violation of this Section 5 shall be void and ineffective.
Section 6. PERMITTED TRANSFERS.
(a) The Liberty Parties and any Founder Party may Transfer Subject
Shares to their respective Permitted Transferees without being obligated to
first deliver a First Offer Notice to any other party, provided that the
Permitted Transferee undertakes in writing to be subject to each of the terms of
this Agreement, and in the case of a Permitted Transferee of a Liberty Party,
the Standstill Agreement and, in the case of Permitted Transferees of the
Founder Parties, the Voting Agreement and is then subject to the rights and
obligations that apply to the Liberty Parties, in the case of Permitted
Transferees of a Liberty Party, or the Founder Parties, in the case of Permitted
Transferees of a Founder Party. Any purported Transfer to a Permitted Transferee
shall be void and ineffective as against both the transferring Liberty Party or
Founder Party, and the Permitted Transferee, if the Permitted Transferee fails
to become subject to this Agreement and subject to the rights and obligations of
the transferring Liberty Party or Founder Party.
(b) A Founder Party or Liberty Party may pledge or grant a security
interest in Subject Shares, or Rights to acquire Subject Shares, to a financial
institution to secure a bona fide loan made to such Founder Party or Liberty
Party, or in connection with a hedging transaction with a financial institution,
without becoming obligated to deliver a First Offer Notice; provided that the
lender or counter-party (i) may not become the registered holder of Subject
Shares as a consequence thereof, (ii) agrees in writing with the pledging party
(in an agreement which expressly provides that United and the non-pledging party
(the Liberty Parties or the Founders, as applicable) are third-party
beneficiaries thereof) that such secured party shall not foreclose upon or
Transfer any Subject Shares pursuant to the exercise of its remedies with
respect to such pledge or security interest unless it first complies with the
provisions of Section 4 as if it were a Liberty Party, in the case of a pledge
of Subject Shares held by a Liberty Party, and the provisions of Section 5 as if
it were a Founder Party, in the case of a pledge of Subject Shares held by a
Founder Party, and, in either case, if the applicable offer is rejected or
deemed rejected or the purchase and sale of the offered shares fail for any
reason to occur, it converts the Subject Shares subject to such pledge or
security interest into Class A Stock prior to such foreclosure or Transfer.
Notwithstanding the foregoing reference to the provisions of Section 4 and 5,
for pledges made to secure loans (or notional amounts in the case of hedging
transactions) of less than $15 million, (1) the maximum election period shall be
one (1) Business Day (rather than the Sixty-Day Election Period provided in
Section 4 or the thirty-day Founder Election Period provided in Section 5) and
(2) the closing of any purchase and sale of the pledged shares by the Liberty
Parties or the Founders, as applicable, pursuant to the exercise of their first
offer rights
15
shall occur within three (3) Business Days of the delivery of a First Offer
Notice by the secured party.
(c) Those pledges of common stock of Old United that were in effect on
May 25, 2001 and are identified on Appendix I hereto, and which apply to Subject
Shares as of the date hereof, shall not be deemed to have been made in violation
of the foregoing provisions of this Agreement, provided that the pledging
parties use their best commercially reasonable efforts to obtain the agreement
of the applicable lender or counter-party contemplated by Section 6(b).
Section 7. TAG-ALONG RIGHTS.
(a) If (i) (A) the Liberty Parties propose to Transfer Liberty Offered
Shares representing a majority of the Class B and Class C Stock then
Beneficially Owned by the Liberty Parties or, when taken together with all prior
Transfers of such stock other than to a Permitted Transferee or the Founders and
their Designated Purchasers, a number of shares equal to a majority of such
stock Beneficially Owned by the Liberty Parties as of the date hereof, in either
case pursuant to a Liberty Offer Notice or Liberty Offer Notices delivered in
accordance with Section 4, (B) the Founders and their Designated Purchasers fail
to purchase such Liberty Offered Shares and (C) the Liberty Parties propose to
Transfer the Class A Stock obtained by the conversion of such Liberty Offered
Shares to a Person other than a Permitted Transferee, or (ii) (A) the Founder
Parties propose to Transfer Founder Offered Shares representing a majority of
the Class B Stock then Beneficially Owned by all Founder Parties, or, when taken
together with all prior Transfers of such stock other than to a Permitted
Transferee or the Liberty Parties, a number of shares equal to a majority of
such stock Beneficially Owned by the Founders and their Permitted Transferees as
of the date hereof, in either case pursuant to a Founder Offer Notice or Founder
Offer Notices delivered in accordance with Section 5, (B) the Liberty Parties
fail to purchase such Founder Offered Shares and (C) the Founder Parties propose
to Transfer such Founder Offered Shares to a Person other than a Permitted
Transferee, the proposed transferor(s) (the "TRANSFEROR") must first deliver a
notice (a "TAG-ALONG NOTICE") to the Founders, if the Transferor is one or more
Liberty Parties, or to the Liberty Parties, if the Transferor is one or more
Founder Parties, setting forth (w) the number of shares of Class A Stock or
shares of Class B Stock proposed to be Transferred (which shall be the same as
the number of Subject Shares subject to the applicable First Offer Notice), (x)
the price per share of Class A Stock or per share of Class B Stock at which the
shares of Class A Stock or shares of Class B Stock are proposed to be
Transferred (which shall be equal to or greater than the price per share set
forth in the applicable First Offer Notice), (y) all Liens and Restrictions to
which the shares of Class A Stock or shares of Class B Stock proposed to be
Transferred will be subject, and (z) whether the shares of Class A Stock or
shares of Class B Stock proposed to be Transferred are to be sold for cash or
other consideration and the other terms of the proposed Transfer.
(b) The Liberty Parties (if the Transferor is one or more Founder
Parties) or the Founder Parties (if the Transferor is one or more Liberty
Parties) (the applicable of the foregoing, the "TAG-ALONG GROUP") shall have the
right (the "TAG-ALONG RIGHT"), exercisable by written notice delivered to the
Transferor not later than 15 Business Days following the date the Tag-Along
Notice is given, to elect to Transfer up to an aggregate number of shares of
Class B Stock and/or Class C Stock (and/or, if the Tag-Along Group consists of
one or more Liberty Parties, Class A Stock) owned by the members of the
Tag-Along Group equal to the number determined by
15
multiplying the number of shares of Class B Stock (or Class A Stock if the
Transferor is a Liberty Party) proposed to be transferred by the Transferor by a
fraction the numerator of which is the number of shares of Class B Stock and
Class C Stock (and, if the Tag-Along Group consists of one or more Liberty
Parties, Class A Stock) then owned in the aggregate by the members of the
Tag-Along Group and the denominator of which is the total number of shares of
Class B Stock and Class C Stock then owned in the aggregate by the Transferor
and the members of the Tag-Along Group (and, if the Tag-Along Group consists of
one or more Liberty Parties, shares of Class A Stock then owned by members of
the Tag-Along Group). The shares of Common Stock Transferred by the Liberty
Parties pursuant to the exercise of a Tag-Along Right may include shares of
Class A Stock, but only up to an aggregate number of shares of Class A Stock in
any such Transfer equal to the number determined by multiplying the total number
of shares of Common Stock that may be Transferred by the Liberty Parties
pursuant to such Tag-Along Right (computed in accordance with the preceding
sentence) by a fraction, the numerator of which is the number of shares of Class
A Stock then owned in the aggregate by the Liberty Parties and the denominator
of which is the total number of shares of Common Stock then owned in the
aggregate by the Liberty Parties. The Tag-Along Right shall be allocated among
the members of the Tag-Along Group by Liberty (in the case of the Liberty
Parties) or the Controlling Principals (in the case of the Founder Parties). The
number of shares to be Transferred by the Transferor shall be reduced by the
number of shares to be sold by the parties to this Agreement that exercise
Tag-Along Rights ("EXERCISING HOLDERS").
(c) The terms on which any Transferor required to deliver a Tag-Along
Notice actually Transfers its shares of Class B Stock or shares of Class A Stock
shall not be more favorable, and shall include no more cash, than the terms on
which Exercising Holders Transfer their shares of Common Stock. Exercising
Holders may be required to make the same representations, warranties, covenants
and agreements as are given by the Transferor in connection with any Transfer
pursuant to this Section 7, but only insofar as they relate to such Exercising
Holder's ownership of the Common Stock subject to the Transfer, are
representations or warranties regarding the approval, authorization or
enforceability of such action, or are covenants or agreements to the effect that
such Exercising Holder will take such commercially reasonable actions as may be
necessary for the Transfer to lawfully occur and which the Transferor has also
agreed to take (other than any such actions which can reasonably be taken only
by the Transferor).
If any Liberty Party or Founder Party exercises its Tag-Along Right,
the Transferor required to deliver a Tag-Along Notice shall cause the documents
relating to the Transfer of its shares of Class A Stock or shares of Class B
Stock to the proposed transferee to be amended so that such documents include as
parties the Exercising Holders, and so as to provide that the proposed
transferee shall acquire from such Exercising Holders the number of shares of
Common Stock held by such Exercising Holders as to which the Tag-Along Right has
been exercised. The closing of the sale of Common Stock by any Exercising Holder
pursuant to this Section 7 shall, to the extent legally practicable, take place
at the same time and place as the closing of the Transfer by any Transferor
giving rise to the Tag-Along Right. At such closing, (x) the Exercising Holders
shall deliver to the transferee certificates representing the Common Stock
subject to the Transfer, free and clear of any Lien or Restriction (if the
Transferor's shares are being transferred free and clear of any Lien or
Restriction) other than those created by this Agreement, another Transaction
Agreement, the Transferor or the transferee, (y) the transferee
16
shall deliver to the Exercising Holders the consideration to be paid for such
Common Stock in accordance with the terms of the purchase and sale of such
Common Stock and of the Common Stock of the Transferor, and (z) subject to the
preceding paragraph, the Exercising Holders shall execute such other documents
and take such other actions as are reasonably necessary to consummate the sale
of such Common Stock and are also being taken by the Transferor (other than any
such actions as can reasonably be taken only by the Transferor). Any shares of
Class C Stock Transferred to a transferee pursuant to this Section shall be
converted immediately prior to such Transfer to Class A Stock or, if then
permissible under the United Charter, Class B Stock.
Any purported Transfer of Common Stock in violation of this Section 7
shall be void and ineffective as against both the Transferor and the proposed
transferee.
Section 8. DRAG-ALONG RIGHTS.
(a) If (A) the Founder Parties propose to Transfer Founder Offered
Shares in an amount equal to the greater of (1) a number of shares that
represents a majority of the Class B Stock then Beneficially Owned by all
Founders and their Permitted Transferees or (2) a number of shares that, when
taken together with all shares of Class B Stock previously Transferred to
Persons other than Permitted Transferees or the Liberty Parties, represents a
majority of the Class B Stock Beneficially Owned by the Founders and their
Permitted Transferees as of the date hereof, in either case, pursuant to a
Founder Offer Notice or Founder Offer Notices delivered in accordance with
Section 5, (B) the Liberty Parties fail to purchase such Founder Offered Shares
and (C) the Founder Parties propose to Transfer such Founder Offered Shares to
an unaffiliated third party that is not a Permitted Transferee, then the
Controlling Principals may deliver a notice (a "DRAG-ALONG NOTICE") to the
Liberty Parties setting forth (w) the number of shares of Class B Stock proposed
to be Transferred (which shall be the same as the number of Subject Shares
subject to the applicable Founder Offer Notice), (x) the price per share at
which the shares of Class B Stock are proposed to be Transferred (which shall be
equal to or greater than the price per share set forth in the applicable Founder
Offer Notice), (y) all Liens and Restrictions to which the shares of Class B
Stock proposed to be Transferred will be subject, and (z) whether the Class B
Stock proposed to be Transferred is to be sold for cash or other consideration
and the other terms of the proposed Transfer.
(b) Upon receipt of a Drag-Along Notice, the Liberty Parties will be
required to Transfer to the proposed transferee, at the Liberty Parties'
election, (i) all shares of Class B Stock and Class C Stock Beneficially Owned
by the Liberty Parties as to which they have dispositive power, (ii) all shares
of Common Stock Beneficially Owned by the Liberty Parties as to which they have
dispositive power or (iii) the Proportionate Number of Shares Beneficially Owned
by the Liberty Parties (and, in the case of a Transfer pursuant to this clause
(iii), such Proportionate Number of Shares Beneficially Owned by the Liberty
Parties shall be comprised of shares of Common Stock of each class in the same
relative proportions as the Liberty Parties' aggregate Beneficial Ownership of
each such class bears to the Liberty Parties' aggregate Beneficial Ownership of
Common Stock of all classes); provided, however, that if, in connection with the
proposed Transfer by the Founders, Xx. Xxxx X. Xxxxxxxxx, X. Xxxxxxxxx Holdings,
Co., a Colorado limited partnership, The Xxxx X. Xxxxxxxxx Family Trust, Xx.
Xxxx X. Xxxxxxxxx and The MLS Family Partnership LP propose to Transfer to the
proposed transferee all shares of Common Stock Beneficially Owned by them, which
shares of Common Stock include shares of
17
Class B Stock representing at least 40% of the greater of (x) the number of
shares of Class B Stock Beneficially Owned by them in the aggregate as of the
date hereof and (y) the number of shares of Class B common stock of Old United
Beneficially Owned by them in the aggregate as of June 25, 2000, in each case
appropriately adjusted for stock splits, stock dividends and other similar
events, then the Liberty Parties will be required to Transfer to the proposed
transferee all shares of Common Stock Beneficially Owned by them as to which
they have dispositive power.
(c) The Liberty Parties may require that any Transfer with respect to
which the Founders exercise their Drag-Along Rights be structured as a
transaction in which all holders of Class B Stock and Class C Stock are treated
equally with respect to all shares of Common Stock being transferred and that is
a tax-free transaction for the Liberty Parties.
(d) Upon exercise by the Founders of Drag-Along Rights, the terms on
which the Liberty Parties actually Transfer their Common Stock shall not be less
favorable, and (subject to clause (c) above) shall not include less cash, than
the terms on which the Founder Parties Transfer their Class B Stock. The Liberty
Parties may be required to make the same representations, warranties, covenants
and agreements as are given by the Founder Parties in connection with any
Transfer pursuant to this Section 8, but only insofar as they relate to the
Liberty Parties' ownership of the Common Stock subject to the Transfer, are
representations or warranties regarding approval, authorization or
enforceability of such action, or are covenants or agreements to the effect that
the Liberty Parties will take such commercially reasonable actions as may be
necessary for the Transfer to lawfully occur and which the Founder Parties have
also agreed to take (other than any such action which can reasonably be taken
only by the Founders).
Upon exercise by the Founders of Drag-Along Rights, the Founders shall
cause the documents relating to the Transfer of their Class B Stock to the
proposed transferee to be amended so that such documents include as parties the
Liberty Parties, and so as to provide that the proposed transferee shall acquire
from the Liberty Parties the number of shares of Common Stock determined in
accordance with Section 8(b). Except as otherwise required in order to satisfy
Section 8(c), the closing of the sale of Common Stock by the Liberty Parties
pursuant to this Section 8 shall, to the extent legally practicable, take place
at the same time and place as the closing of the Transfer by the Founder
Parties. At such closing, (x) the Liberty Parties shall deliver to the
transferee certificates representing the Common Stock subject to the Transfer,
free and clear of any Lien or Restriction (if the Founder Parties' shares are
being transferred free and clear of any Lien or Restriction) other than those
created by this Agreement, any other Transaction Agreement or the transferee,
(y) the transferee shall deliver to the Liberty Parties the consideration to be
paid for such Common Stock in accordance with the terms of the purchase and sale
of such Common Stock and of the Class B Stock of the Founder Parties, and (z)
subject to the preceding paragraph, the Liberty Parties shall, to the same
extent as the Founder Parties with respect to the Class B Stock being
transferred by them, execute such other documents and take such other
commercially reasonable actions as may be necessary to consummate the sale of
such Common Stock (other than any such action which can reasonably be taken only
by the Founders). Any shares of Class C Stock Transferred to a transferee
pursuant to this Section 8 shall be converted immediately following such
Transfer to Class A Stock or, if (i) then permissible under the United Charter
or (ii) such conversion would not result in a "Change of Control" pursuant to
the Current Indentures as then in effect, Class B Stock.
18
Section 9. ALL SHARES.
All Equity Securities at any time Beneficially Owned by the Liberty
Parties or the Founders or any of their Permitted Transferees shall be subject
to the terms of this Agreement.
Section 10. EXCHANGE OF SHARES.
(a) United will, on request of Liberty and subject to applicable Law
and listing requirements, permit any Liberty Party or its Affiliates to exchange
any shares of Class A Stock or Class B Stock Beneficially Owned by such Liberty
Party or Affiliate for shares of Class C Stock or, following the conversion of
the Class C Stock, Class B Stock on a one-for-one basis.
(b) United will, on request of Liberty and subject to applicable Law
and listing requirements, permit any Liberty Party or its Affiliates to exchange
capital stock of UPC (or capital stock of any other Affiliate of United
(including, for purposes of this Section 10, any Person in which United,
directly or indirectly, Beneficially Owns 50% or more of the equity securities,
without regard to voting power in the election of directors)) Beneficially Owned
by such Liberty Party or Affiliate (which shares were acquired from UPC or such
Affiliate) for shares of Class C Stock or, following the conversion of the Class
C Stock, Class B Stock on the basis provided in subsection (c) of this Section
10 and otherwise on such basis as Liberty and United may agree, including the
receipt of required fairness opinions. United will use commercially reasonable
efforts to structure any such exchange so that it is tax-free to Liberty.
(c) Without limiting the generality of the foregoing, at any time and
from time to time after the occurrence of an event that, upon the giving of
notice by UPC, would entitle UPC to convert the shares of its Series 1
Convertible Preference Shares A ("UPC CONVERTIBLE SHARES") Beneficially Owned by
Liberty into ordinary shares of UPC ("UPC ORDINARY SHARES") (i) Liberty will
have the right to put all or any portion of the UPC Convertible Shares or the
UPC Ordinary Shares received on conversion or redemption of the UPC Convertible
Shares or on exercise of warrants to United in exchange for shares of Class C
Stock, or, following the conversion of the Class C Stock, Class B Stock, valued
at the Agreed United Per Share Value (as defined in (and determined in
accordance with) Schedule 10(c) to this Agreement, except that any values
ascribed to United's direct or indirect investment in UPC Ordinary Shares and
UPC Convertible Shares shall not exceed the values ascribed to such securities
pursuant to the following sentence), and (ii) provided such exchange is tax-free
to Liberty, United will have the right to call such UPC Convertible Shares or
UPC Ordinary Shares from Liberty in exchange for shares of Class C Stock, or,
following the conversion of the Class C Stock, Class B Stock, valued at the
Average Market Price (as defined in the Merger Agreement) of the Class A Stock.
For purposes of such put or call: (A) the value of UPC Convertible Shares will
be as agreed by Liberty and United or, subject to Section 10(d), if they have
not agreed on such value within ten days after the date notice of exercise of a
put or call is given, as determined by an independent investment banking firm
selected by the parties taking into account, among other things, the average
closing sale price of the UPC Ordinary Shares for the period of 20 trading days
preceding the date of such notice, and (B) UPC Ordinary Shares will be valued at
the Average Market Price (as defined in the Merger Agreement) of the UPC
Ordinary Shares as of the date notice of exercise of a put or call is given. If
Liberty elects to exercise a put, United will use commercially reasonable
efforts to structure the exchange transaction so that it is tax-free to Liberty.
19
(d) If Liberty and United are unable to agree on the value of UPC
Convertible Shares and are unable to agree on the selection of an investment
banking firm to make such determination within the ten day period provided in
Section 10(c)(A), then either party may select such investment banking firm by
delivering written notice of such selection to the other party at any time after
the expiration of such ten day period; provided however, that if the party
receiving such a notice, within ten days after the receipt thereof, delivers
written notice to the other party designating an alternate investment banking
firm, then the two investment banking firms identified by the parties shall
select a third investment banking firm, which shall determine the value of the
UPC Convertible Shares as contemplated by Section 10(c)(A).
Section 11. ENDORSEMENT OF CERTIFICATES.
(a) United shall endorse upon the certificate for each of the Equity
Securities Beneficially Owned by the Liberty Parties and the Founders a legend
substantially the same as the following legend:
"The securities represented by this certificate are
subject to a [Stockholders Agreement and a Standstill
Agreement [in the case of such securities held by
Liberty Parties]], a [Stockholders Agreement and a
Voting Agreement [in the case of such securities held
by Founders]], each dated as of January 30, 2002,
copies of which are available from UnitedGlobalCom,
Inc. upon request, and any sale, pledge,
hypothecation, transfer, assignment or other
disposition of such securities is subject to such
Stockholders Agreement and [Standstill Agreement]
[Voting Agreement]."
(b) Upon surrender to United of any certificate representing any Equity
Securities or Rights disposed of by a Liberty Party or any Affiliate of a
Liberty Party in a transaction described in Section 5(a)(ii) or (v) of the
Standstill Agreement or in clause (ii), (iii) or (iv) of the definition of
Transfer in Section 1, United shall promptly cause to be issued (i) to the
transferee or transferees of such Equity Securities or Rights one or more
certificates without the legend set forth in Section 11(a) and (ii) to the
holder of Equity Securities or Rights represented by such certificates so
surrendered one or more certificates representing such Equity Securities or
Rights, if any, as shall not have been so disposed of, with the legend set forth
in Section 11(a). Upon termination of this Agreement pursuant to Section 13 and
the surrender to United of any certificate representing Equity Securities or
Rights, United shall cause to be issued to the holder of such Equity Securities
or Rights one or more certificates without the legend set forth in Section
11(a).
Section 12. REPRESENTATIONS AND WARRANTIES.
Each of the Liberty Parties, on the one hand, and the Founders and
United, on the other, severally and not jointly, represent and warrant to each
other as of the date of this Agreement as follows:
20
(a) Such party has the right, power, legal capacity and authority to
enter into and perform such party's obligations under this Agreement, and this
Agreement constitutes such party's valid and binding obligation, enforceable
against such party in accordance with its terms, subject, as to enforceability,
to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and similar laws affecting creditor's rights and remedies generally,
and to general principles of equity, including principles of commercial
reasonableness, good faith and fair dealing (regardless of whether enforcement
is sought in a proceeding at law or in equity).
(b) Such party has obtained all authorizations, permits, approvals or
consents of any Persons, as well as all authorizations, permits, approvals or
consents of any Governmental Authorities, necessary to enter into and perform
such party's obligations under this Agreement, except as would not, individually
or in the aggregate, materially adversely affect such party's ability to perform
its obligations under this Agreement.
(c) Such party is the lawful and Beneficial Owner of record of the
Equity Securities set forth opposite such party's name in Appendix I, free and
clear of any Lien or Restriction, except for those created by this Agreement or
any other Transaction Agreement, or as otherwise set forth in Appendix I. In the
case of a Founder, the number of equity securities of Old United Beneficially
Owned by such party as of June 25, 2000 is also set forth on Appendix I.
(d) This Agreement and the transactions it contemplates do not conflict
with any applicable Law or any agreement to which such party is a party or
constitute a default under any such agreement, except as would not, individually
or in the aggregate, materially adversely affect such party's ability to perform
its obligations under this Agreement.
Section 13. TERM AND TERMINATION.
(a) The Liberty Parties' covenants set forth in Section 3(a), the
parties' obligation to issue a Tag-Along Notice pursuant to Section 7 and the
Founder Parties' right to issue a Drag-Along Notice pursuant to Section 8 of
this Agreement will terminate on June 25, 2010, unless this Agreement is earlier
terminated in its entirety as described in this Section 13.
(b) This Agreement shall terminate as to any Liberty Party or Founder
(but not as to any Designated Purchaser) the voting power of whose Beneficially
Owned Equity Securities (together with that of its Permitted Transferees (which
for this purpose will not include another Founder or Permitted Transferee of
another Founder) and Controlled Affiliates) is reduced to 10% or less of the
voting power of equity securities in Old United that such Liberty Party or
Founder (together with its Permitted Transferees (which for this purpose will
not include another Founder or Permitted Transferee of another Founder) and
Controlled Affiliates) Beneficially Owned as of June 25, 2000. Notwithstanding
the parentheticals in the preceding sentence, for purposes of this Section
13(b), Xx. Xxxx X. Xxxxxxxxx shall be deemed to Beneficially Own all Equity
Securities Beneficially Owned by Xx. Xxxx X. Xxxxxxxxx, and Xx. Xxxx X.
Xxxxxxxxx shall be deemed to Beneficially Own all Equity Securities Beneficially
Owned by Xx. Xxxx X. Xxxxxxxxx. For purposes of this Section 13, the voting
power of outstanding shares of Class C Stock, if any, shall be calculated as if
such shares had been converted into Class B Stock.
21
(c) This Agreement (other than Section 11(b)) shall terminate in its
entirety on the first to occur of (a) such time as (i) all of the Founders and
their Permitted Transferees that are parties to this Agreement as a group or
(ii) Xx. Xxxx X. Xxxxxxxxx, Xx. Xxxx X. Xxxxxxxxx and their Permitted
Transferees (which for this purpose will not include another Founder or
Permitted Transferee of another Founder) that are parties to this Agreement as a
group, no longer Beneficially Own a number of shares of Class B Stock equal to
at least 40% of the greater of (x) the number of shares of Class B Stock
Beneficially Owned by them in the aggregate as of the date hereof and (y) the
number of shares of Class B common stock of Old United Beneficially Owned by
them in the aggregate as of June 25, 2000, in each case appropriately adjusted
for stock splits, stock dividends and other similar events, provided that for
purposes of calculating such ownership, any Class B Stock transferred by such
Person to a Liberty Party shall be deemed to continue to be owned, or (b) the
consummation of a Transfer (whether in a single transaction or in one or more
related transactions) by the Founders and their Permitted Transferees that are
parties to this Agreement of shares of Class B Stock that represent at least a
majority of the aggregate amount of Class B Stock then Beneficially Owned by
them or that, when taken together with all shares of Class B Stock previously
Transferred to Persons other than Permitted Transferees, represent a majority of
the Class B Stock Beneficially Owned by the Founders and their Permitted
Transferees as of the date hereof, whether to one or more Liberty Parties or to
one or more unaffiliated third parties. For purposes of this Section 13,
"Founders" means Xxxx X. Xxxxxxxxx, Xxxx X. Xxxxxxxxx, Xxxxxx Xxxxxxxx and
Xxxxxx X. Xxxxxxx, Xx.
Section 14. REMEDIES. Each of the parties acknowledges and agrees that
in the event of any breach of this Agreement, the nonbreaching party would be
irreparably harmed and could not be made whole by monetary damages. Accordingly,
the parties to this Agreement, in addition to any other remedy to which they may
be entitled hereunder or at law or in equity, shall be entitled to compel
specific performance of this Agreement.
Section 15. NOTICES. All notices, requests, demands and other
communications required or permitted under this Agreement shall be in writing,
shall be deemed to have been duly given when delivered personally or, sent by
telecopy, or recognized service providing for guaranteed delivery, addressed as
follows:
(a) If to the Founders, to:
UnitedGlobalCom, Inc.
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxx 0000
Xxxxxx, Xxxxxxxx 00000
Attention: President
Fax: 303/000-0000
22
with copies to:
UnitedGlobalCom, Inc.
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxx 0000
Xxxxxx, Xxxxxxxx 00000
Attention: General Counsel
Fax: 303/000-0000
and
Holme Xxxxxxx & Xxxx LLP
0000 Xxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxx, Xxxxxxxx 00000
Attention: W. Xxxx Xxxxxx, Esq.
Fax: 303/000-0000
(b) If to the Liberty Parties, to:
Liberty Media Corporation
00000 Xxxxxxx Xxxx.
Xxxxxxxxx, Xxxxxxxx 00000
Attention: President
Fax: 720/000-0000
with a copy to:
Liberty Media Corporation
00000 Xxxxxxx Xxxx.
Xxxxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxxxx X. Xxxxxxxxx, Esq.
Fax: 720/000-0000
Xxxxx Xxxxx L.L.P.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxx Xx., Esq.
Fax: 212/000-0000
Liberty and the Controlling Principals shall be responsible for distributing any
notices they receive to the Liberty Parties and Founder Parties, respectively,
as necessary, as well as for supplying each other with any changes in the
addresses or telecopy numbers set forth in this Section 15. All notices,
requests, demands, waivers and communications shall be deemed to have been given
on the date of delivery or on the first Business Day after overnight delivery
was guaranteed by a recognized delivery service, except that any change of
address shall be effective
23
only upon actual receipt. Written notice given by telecopy shall be deemed
effective when confirmation is received by the sending party. Delivery shall be
deemed to have been made to each Founder on the date that delivery is made to
United at the address specified above (as it may be changed as provided herein).
Delivery shall be deemed to have been made to each Liberty Party on the date
that delivery is made to Liberty at the address specified above (as it may be
changed as provided herein).
Section 16. ENTIRE AGREEMENT. This Agreement, together with the other
Transaction Agreements and the Merger Agreement, contains all the terms and
conditions agreed upon by the parties hereto regarding the subject matter hereof
and thereof, and no other agreements, oral or otherwise, regarding the subject
matter hereof shall have any effect unless in writing and executed by the
parties after the date of this Agreement.
Section 17. APPLICABLE LAW, JURISDICTION; WAIVER OF JURY TRIAL. This
Agreement shall be governed by Colorado law without regard to conflicts of law
rules. The parties hereby irrevocably submit to the jurisdiction of any Colorado
State or United States Federal court sitting in Colorado, and only a State or
Federal Court sitting in Colorado will have any jurisdiction over any action or
proceeding arising out of or relating to this Agreement or any agreement
contemplated hereby, and the undersigned hereby irrevocably agree that all
claims in respect of such action or proceeding shall be heard and determined in
such State or Federal court. The undersigned further waive any objection to
venue in such State and any objection to any action or proceeding in such State
on the basis of a non-convenient forum. Each party hereby IRREVOCABLY WAIVES ANY
RIGHT TO A TRIAL BY JURY in any proceeding brought with respect to this
Agreement or the transactions contemplated hereby.
Section 18. HEADINGS. The headings in this Agreement are for
convenience only and are not to be considered in interpreting this Agreement.
Section 19. COUNTERPART EXECUTION. This Agreement may be executed in
any number of counterparts, each of which shall be deemed an original but all of
which will constitute a single agreement.
Section 20. PARTIES IN INTEREST. Nothing in this Agreement, express or
implied, is intended to confer upon any Person other than the parties hereto and
their permitted successors and assigns, any benefits, rights or remedies. Except
as contemplated by the definitions of "Liberty" or "Transfer," neither this
Agreement nor the rights or obligations of any party may be assigned or
delegated (other than to a Permitted Transferee that becomes a party hereto in
accordance with the terms hereof) by operation of law or otherwise without the
prior written consent of Liberty and Controlling Principals.
Section 21. SEVERABILITY. The invalidity or unenforceability of any
provision of this Agreement in any application shall not affect the validity or
enforceability of such provision in any other application or the validity or
enforceability of any other provision.
Section 22. WAIVERS AND AMENDMENTS. No waiver of any provision of this
Agreement shall be deemed a further or continuing waiver of that provision or a
waiver of any other provision of this Agreement. This Agreement may not be
amended except in a writing signed by
24
Liberty, United and Controlling Principals. United may waive its rights under
this Agreement only with the prior approval of a majority of the Board.
Section 23. INTERPRETATION. As used herein, except as otherwise
indicated herein or as the context may otherwise require, the words "include,"
"includes" and "including" are deemed to be followed by "without limitation"
whether or not they are in fact followed by such words or words of like import;
the words "hereof," "herein," "hereunder" and comparable terms refer to the
entirety of this Agreement, including the Appendix hereto, and not to any
particular article, section or other subdivision hereof or Appendix hereto; any
pronoun shall include the corresponding masculine, feminine and neuter forms;
the singular includes the plural and vice versa; references to any agreement or
other document are to such agreement or document as amended and supplemented
from time to time; references to any statute or regulation are to it as amended
and supplemented from time to time, and to any corresponding provisions of
successor statutes or regulations; references to "Article," "Section" or another
subdivision or to an "Appendix" are to an article, section or subdivision hereof
or an "Appendix" hereto; and all references to "the date hereof," "the date of
this Agreement" or similar terms (but excluding references to the date of
execution hereof) refer to the date first above written, notwithstanding that
the parties may have executed this Agreement on a later date. Any reference
herein to a "day" or number of "days" (without the explicit qualification of
"Business") shall be deemed to refer 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 may be taken or given on the next succeeding Business Day.
Section 24. RULES OF CONSTRUCTION. The parties hereto agree that they
have been represented by counsel during the negotiation, preparation and
execution of this Agreement and, therefore, waive the application of any law,
regulation, holding or rule of construction providing that ambiguities in an
agreement or other document will be construed against the party drafting such
agreement or document.
[Signature Pages Follow]
25
Executed as of the date first set forth above.
UNITEDGLOBALCOM, INC.,
a Delaware corporation
By: /s/ XXXXXXX X. XXXXX
--------------------
Xxxxxxx X. Xxxxx
President
LIBERTY MEDIA CORPORATION,
a Delaware corporation
By: /s/ XXXXXXXXX X. XXXXXXXXX
--------------------------
Xxxxxxxxx X. Xxxxxxxxx
Senior Vice President
LIBERTY GLOBAL, INC.,
a Delaware corporation
By: /s/ XXXXXXXXX X. XXXXXXXXX
--------------------------
Xxxxxxxxx X. Xxxxxxxxx
Senior Vice President
LIBERTY UCOMA, LLC,
a Delaware limited liability company
By: /s/ XXXXXXXXX X. XXXXXXXXX
--------------------------
Xxxxxxxxx X. Xxxxxxxxx
Senior Vice President
FOUNDER SIGNATURES
THE X. XXXXXXXXX GROUP
/s/ XXXX X. XXXXXXXXX
---------------------
Xxxx X. Xxxxxxxxx
X. XXXXXXXXX HOLDINGS, CO.,
a Colorado limited partnership
By: /s/ XXXX X. XXXXXXXXX
---------------------
Xxxx X. Xxxxxxxxx
General Partner
THE XXXX X. XXXXXXXXX FAMILY TRUST
By: /s/ XXXX X. XXXXXXXXX
---------------------
Xxxx X. Xxxxxxxxx
Attorney-in-Fact
THE MLS FAMILY PARTNERSHIP LLLP
By: /s/ XXXX X. XXXXXXXXX
---------------------
Xxxx X. Xxxxxxxxx
Attorney-in-Fact
STOCKHOLDERS AGREEMENT
FOUNDER SIGNATURES
THE X. XXXXXXXXX GROUP
/s/ XXXX X. XXXXXXXXX
---------------------
Xxxx X. Xxxxxxxxx
FOUNDER SIGNATURES
THE XXXXXXXX GROUP
XXXXXXXX LIMITED PARTNERSHIP
By: Xxxxxx Xxxxxxxx Trust
General Partner
By: /s/ XXXXXX X. XXXXXXXX
----------------------
Xxxxxx X. Xxxxxxxx
Trustee
XXXXXX X. XXXXXXXX REVOCABLE TRUST
By: /s/ XXXXXX X. XXXXXXXX
----------------------
Xxxxxx X. Xxxxxxxx
Attorney-in-Fact
/s/ XXXXXX X. XXXXXXXX
----------------------
Xxxxxx X. Xxxxxxxx
/s/ XXXXXX X. XXXXXXXX
----------------------
Xxxxxx X. Xxxxxxxx
By Xxxxxx X. Xxxxxxxx, Attorney-in-Fact
/s/ XXXXXX X. XXXXXXXX
----------------------
Xxx Xxxxxxxx
By Xxxxxx X. Xxxxxxxx, Attorney-in-Fact
/s/ XXXXXX X. XXXXXXXX
----------------------
Xxxxx Xxxxxxx Xxxx
By Xxxxxx X. Xxxxxxxx, Attorney-in-Fact
/s/ XXXXXX X. XXXXXXXX
----------------------
Xxxxxxxx Xxxxx
By Xxxxxx X. Xxxxxxxx, Attorney-in-Fact
FOUNDER SIGNATURES
THE XXXXXXX GROUP
/s/ XXXXXX X. XXXXXXX
---------------------
Xxxxxx X. Xxxxxxx
XXXXXXX COMPANY,
a Wyoming general partnership
By: /s/ XXXXXX X. XXXXXXX
---------------------
Xxxxxx X. Xxxxxxx
General Partner
XXXXXX & XXXXXXX COMPANY,
a Wyoming trust
By: /s/ XXXXXX X. XXXXXXX
---------------------
Xxxxxx X. Xxxxxxx
Attorney-in-Fact
XXXXX X. XXXXXXX LIVING TRUST
a Wyoming trust
By: /s/ XXXXXX X. XXXXXXX
---------------------
Xxxxxx X. Xxxxxxx
Attorney-in-Fact
XXXX X. XXXXXXX LIVING TRUST
a Wyoming trust
By: /s/ XXXXXX X. XXXXXXX
---------------------
Xxxxxx X. Xxxxxxx
Attorney-in-Fact
FOUNDER SIGNATURES
THE FRIES GROUP
/s/ XXXXXXX X. XXXXX
--------------------
Xxxxxxx X. Xxxxx
THE FRIES FAMILY PARTNERSHIP LLLP
By: /s/ XXXXXXX X. XXXXX
--------------------
Xxxxxxx X. Xxxxx
Attorney-in-Fact
FOUNDER SIGNATURES
THE XXXXXX GROUP
/s/ XXXX X. XXXXXX
-------------------
Xxxx X. Xxxxxx
Omitted:
Appendix I - Ownership of Securities
Schedule 10(c)
