Exhibit 6
STOCKHOLDERS AGREEMENT
STOCKHOLDERS AGREEMENT, dated as of January 13, 2000 (this
"Stockholders Agreement"), by and among Xxxx X. Xxxxx ("Xx. Xxxxx"), Liberty
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Media Corporation, a Delaware corporation ("Liberty Media") (solely for purposes
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of Section 2(b)), Telcom-DTS Investors, L.L.C., a Delaware limited liability
company ("Telcom") and, as of the Effective Time, as defined below, Microwave
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Services, Inc., a Delaware corporation ("MSI").
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WHEREAS, Teligent, Inc., a Delaware corporation (the "Company"),
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Telcom, the members of Telcom, Digital Services Corporation, a Virginia
corporation ("DSC"), MSI, and the Associated Group, Inc., a Delaware corporation
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("AGI"), are parties to an agreement (the "Registration Rights Agreement") dated
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as of September 29, 1997, providing for certain rights and obligations of
Telcom, DSC, MSI and AGI relating to their ownership interests in the Company;
WHEREAS, on June 1, 1999, Liberty Media and AGI announced that they
had signed a definitive merger agreement, dated as of May 28, 1999 (the "Merger
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Agreement"), pursuant to which, among other things, AGI will be acquired in a
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stock-for-stock merger with a subsidiary of AT&T Corp. (the "Merger") and MSI
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will become an indirect wholly owned subsidiary of Liberty AGI, Inc. a Delaware
corporation ("LAGI");
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WHEREAS, LAGI is an affiliate of Liberty, and, as of the Effective
Time, MSI will be an Affiliate (as defined below) of Liberty;
WHEREAS, as contemplated by the Merger Agreement, immediately prior to
the Effective Time, two of the current five representatives of MSI on the Board
of Directors (the "Board") of the Company will resign and MSI, as the sole
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holder of Class B-Series 1 Common Stock of the Company, will fill the resulting
vacancies with two persons selected by Liberty Media (the "Liberty Nominees");
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and
WHEREAS, the parties hereto desire to establish certain arrangements
regarding the governance of the Company at and after the effective time (the
"Effective Time") of the Merger.
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NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants and agreements contained herein, and intending to be legally bound
hereby, the parties hereby agree as follows:
Section 1. Definitions. Capitalized terms used herein and not
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otherwise defined shall have the meanings ascribed to them in the Registration
Rights Agreement.
(a) "Independent Person" means a person who, prior to and as of the
time of such person's initial nomination and election or appointment as a
director of the
Company, and at all times during such person's incumbency as a director, does
not have any substantial business or other financial relationship (other than de
minimis shareholdings in the Company, Telcom and/or MSI and their respective
Affiliates) with any of the parties or their respective Affiliates. For purposes
of this definition, such nominee may be a board member with Xx. Xxxxx on the
boards of other companies, and such relationship shall not, in and of itself, be
considered a "substantial business relationship."
(b) "Additional Designee" shall be a person elected or appointed to
fill a vacancy on the Board that results from an event described in Section 3(g)
below, which person at the time of his or her initial nomination and election or
appointment meets the following requirements: such person is an Independent
Person who is acceptable to each of (i) the Telcom Designees on the Board, (ii)
the MSI Designees on the Board and (iii) at least one other director. As
provided under Section 3(b) below, there may be more than one Additional
Designee on the Board at any time.
(c) "Liberty Designees" means three persons designated from time to
time by MSI.
(d) "Telcom Designees" means two persons designated from time to time
by Telcom. So long as Telcom, by virtue of its beneficial ownership of Series
B-2 common stock of the Company, is entitled to designate one director, such
Series B-2 director shall be one of the two Telcom Designees.
(e) "Designees" means the Additional Designees, the Liberty Designees
and the Telcom Designees.
(f) "Affiliate" means, with respect to any specified person, any
other person that, directly or indirectly through one or more intermediaries,
controls, is controlled by, or is under common control with, the person
specified. Notwithstanding the foregoing, the parties hereto understand and
agree that neither AT&T Corp. nor any subsidiary of AT&T Corp. that is not a
member of the Liberty Media Group shall be deemed to be an Affiliate of any
person that is a member of the Liberty Media Group, except that, for purposes of
the definition of Independent Person and for purposes of Section 5(b), AT&T
Corp. and its subsidiaries shall be deemed to be Affiliates of MSI for so long
as AT&T Corp. directly or indirectly owns more than 50% of the voting stock of
MSI. For purposes of this definition, Liberty Media Group shall include, without
limitation, Liberty Media, LAGI and, following the Effective Time, MSI.
(g) "Stockholder" means each of Telcom, MSI and Xx. Xxxxx.
Section 2. Composition of the Board.
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(a) The parties hereto agree that each of the following events (the
occurrence of each of which shall be mutually conditioned upon the occurrence of
the others) shall occur or become effective immediately after the Effective
Time:
Exhibit I-2
(i) two of the five representatives of MSI on the Board (including
the MSI representative appointed to the Board in connection with the
closing of the sale of the Company's 7 3/4% convertible preferred stock
(the "Company Preferred Stock"), but excluding the Liberty Nominees), shall
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resign;
(ii) the Board shall adopt resolutions reducing the size of the Board
to eight and filling the remaining vacancy on the Board created by the
resignations described in clause (i) above with a Telcom Designee;
(iii) all of the Class B-Series 1 Common Stock of the Company will
convert into Class A Common Stock of the Company;
(iv) MSI will become a party to this Agreement; and
(v) Telcom, on behalf of itself and DSC, will waive compliance with
Section 2(c)(i) of the Registration Rights Agreement.
(b) The parties hereto agree to take and cause their respective
Affiliates and designated representatives on the Board to take all action within
its or their collective control and power necessary to ensure that, if the
Effective Time occurs, the events described in Section 2(a) above occur
immediately thereafter. Without limiting the generality of the foregoing,
Liberty Media covenants and agrees to cause MSI to become a party hereto at the
Effective Time by executing and delivering a counterpart of this Stockholders
Agreement to the other parties.
(c) Telcom hereby acknowledges and agrees, on behalf of itself and
DSC, that the occurrence of the events contemplated by Section 2(a) of this
Stockholders Agreement will satisfy the requirements of Section 2 of the
Registration Rights Agreement, as such requirements relate to the transactions
contemplated by the Merger Agreement.
Section 3. Covenants.
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The Stockholders shall, and shall cause their respective Affiliates
and their designated representatives on the Board to, from and after the
Effective Time, take all action within their collective control and power
(including, without limitation, (i) convening meetings of the Company's Board of
Directors, and (ii) if necessary, the voting of shares of Company common stock
owned directly or indirectly by such Stockholder or by an Affiliate thereof)
necessary to ensure that:
(a) the size of the Board shall be eight members;
(b) the Stockholders and their Affiliates comply with the provisions
of Section 8 of the November 1997 Agreement (as defined in Section 6 below),
provided that, if Xx. Xxxxx is no longer Chief Executive Officer of the Company,
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the Stockholders shall, and shall cause their respective Affiliates and their
designated representatives on the Board to, take all action within their
collective control and power necessary to ensure
Exhibit I-3
that the person selected as Chief Executive Officer of the Company meets the
requirements for an Additional Designee;
(c) each of MSI and Telcom nominates their respective Designees and
the Stockholders vote, and cause their respective Affiliates to vote, to elect
the Designees as, and to cause the Designees to be, directors of the Company in
accordance herewith at all times following, the Effective Time, and such
Designees are not removed as directors unless the Stockholder who nominated any
such Designee ("Nominator") determines he/she should be removed (in which case
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he/she shall be removed and replaced by a new Designee by the Nominator);
(d) each of the Designees shall continue to be nominated and elected
as a director of the Company and to be a director of the Company until the
Termination Date;
(e) any vacancy in the seat on the Board held by a Designee, which
vacancy occurs subsequent to the Effective Time, shall be filled by the
respective Nominator with another Designee immediately;
(f) as soon as practicable after the Effective Time, the Company's
Certificate of Incorporation shall be amended to add the following proviso to
the end of the last sentence of Article Sixth thereof:
"; provided further, that stockholders shall be entitled to act by
written consent in accordance with Section 228 of the DGCL without regard
to any of the foregoing restrictions in order to implement or enforce the
provisions of the Stockholders Agreement dated as of January , 2000,
by and among Xxxx X. Xxxxx, Liberty Media Corporation, Microwave Services,
Inc. and Telcom-DTS Investors, L.L.C.";
(g) in the event that any of the following events occur: (i) the
beneficial owner of the Class B-Series 3 Common Stock is no longer entitled to
designate a Series B-3 director; (ii) the investors in the Company Preferred
Stock who are entitled to designate a director (the "HMTF Director") are no
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longer entitled to designate the HMTF Director; (iii) Xx. Xxxxx is no longer a
member of the Board; or (iv) an Additional Designee resigns or is removed, then,
in each such case, the resulting director vacancy shall be filled with a person
that meets the requirements for an Additional Designee within 30 days of the
Stockholders' obtaining knowledge of such vacancy; and
(h) no action is taken which would have the effect of eliminating,
limiting, restricting, avoiding or otherwise modifying the effect of any
provision contained herein.
Section 4. No Inconsistent Agreements. Each Stockholder hereby
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covenants and agrees that neither it nor any of its Affiliates shall enter into
any voting agreement or grant a proxy or power of attorney with respect to the
shares of voting stock of the Company it beneficially owns which is inconsistent
with this Stockholders
Exhibit I-4
Agreement. Each party hereby represents and warrants that this Stockholders
Agreement:
(a) has been duly authorized, executed and delivered by such party;
and
(b) is a binding obligation of such party, enforceable against such
party in accordance with its terms and does not require the consent of any
person not a party hereto to be effective to bind such party and the shares of
the Company common stock held by such party or any Affiliate thereof.
Section 5. Transfer of Shares. (a) Except as set forth in (b)
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below and subject to the provisions of Section 10 below, each Stockholder and
its Affiliates shall be free to sell and otherwise transfer any and all of their
shares of Company stock free and clear of any obligations set forth herein;
provided, however, that in the case of a transfer of all of the remaining shares
of Company stock owned by a Stockholder and its Affiliates, such Stockholder
shall no longer be a party hereunder.
(b) Notwithstanding the foregoing sentence, (i) Telcom agrees
that this Stockholders Agreement and the rights and obligations hereunder shall
attach to each of the shares of voting stock of the Company it beneficially owns
and shall be binding upon any Affiliates of Telcom to which legal or beneficial
ownership shall pass whether by sale, transfer or operation of law and (ii) MSI
(upon its becoming a signatory hereto) agrees that this Stockholders Agreement
and the rights and obligations hereunder shall attach to each of the shares of
voting stock of the Company it beneficially owns and shall be binding upon any
Affiliate of MSI to which legal or beneficial ownership shall pass whether by
sale, transfer or operation of law (provided that beneficial ownership of such
shares shall not be deemed to pass as a result of a change in ownership of MSI
if after such change MSI continues to be the record owner of such shares and is
a member of the Liberty Media Group).
Section 6. Information and Consultation Rights. The parties hereby
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agree that for the term of this Agreement, so long as MSI (upon its becoming a
signatory hereto) and Telcom, respectively, remain a party hereto and are in
compliance with the provisions hereof, the Company will (a) use reasonable
efforts to provide regular information to, consult with and obtain the advice of
each of their Designees, respectively, in connection with ordinary decisions of
the Board of Directors and (b) have Consultation (as such term is defined in the
Stockholders' Agreement dated November 26, 1997 among the Company, MSI, Telcom,
NTTA&T Investment Inc. and NTT ("November 1997 Agreement") with each of MSI and
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Telcom for any Consultation Event (as such term is defined in the November 1997
Agreement).
Section 7. Effectiveness; Termination. Except as otherwise expressly
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provided herein and except for Sections 2(b) and 2(c) and this Section 7, which
shall become effective upon execution and delivery hereof, this Stockholders
Agreement shall become effective as of the Effective Time. This Stockholders
Agreement shall terminate at the close of business on the earliest of (i) the
consummation of a merger transaction in
Exhibit I-5
which all of the outstanding shares of Common Stock of the Company are acquired
by any party, (ii) September 30, 2001, (iii) September 30, 2000 (in the case of
a written agreement between MSI and Telcom prior to such date, providing that
this Stockholders Agreement shall be terminated as of September 30, 2000) and
(iv) the date on which the Merger Agreement is terminated if the Merger is not
consummated, provided that if this Stockholders Agreement is terminated pursuant
to this clause (iv), this Stockholders Agreement shall become effective again if
Liberty Media or any of its Affiliates and AGI or any of its Affiliates
thereafter and prior to the occurrence of an event specified in (i), (ii) or
(iii) above, enter into any agreement similar to the Merger Agreement (the
earliest of (i), (ii), (iii) or (iv), the "Termination Date").
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Section 8. Notices. All notices, requests, claims, demands and other
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communications under this Stockholders Agreement shall be in writing and shall
be given or made (and shall be deemed to have been duly given or made upon
receipt) by delivery in person, by facsimile (transmission confirmed), by
courier service or by registered or certified mail (postage prepaid, return
receipt requested) to the respective parties at the following addresses (or at
such other address for a party as shall be specified in a notice given in
accordance with this Section 8):
if to Xx. Xxxxx
c/o Teligent, Inc.
0000 Xxxxxxxx Xxxx
Xxxxxx, XX 00000
Telecopier No.: (000) 000-0000;
with a copy to
Teligent, Inc.
0000 Xxxxxxxx Xxxx
Xxxxxx, XX 00000
Telecopier No.: (000) 000-0000
Attention: General Counsel;
if to MSI or Liberty Media
Liberty Media Corporation
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Telecopier No.: (000) 000-0000
Attention: General Counsel;
Exhibit I-6
if to Telcom
Telcom Ventures, L.L.C.
000 Xxxxx Xxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxxx, XX 00000
Telecopier No.: (000) 000-0000
Attention: President and General Counsel
Section 9. Severability. If any term or other provision of this
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Stockholders Agreement is invalid, illegal or incapable of being enforced by any
rule of law, or public policy, all other conditions and provisions of this
Stockholders Agreement shall nevertheless remain in full force and effect so
long as the economic or legal substance of this Stockholders Agreement is not
affected in any manner materially 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
Stockholders Agreement so as to effect the original intent of the parties as
closely as possible in a mutually acceptable manner in order that the
transactions contemplated by this Stockholders Agreement be consummated as
originally contemplated to the fullest extent possible.
Section 10. Entire Agreement; Assignment. This Stockholders
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Agreement constitutes the entire agreement among the parties with respect to the
subject matter hereof and supersedes all prior agreements and undertakings, both
written and oral, among the parties, or any of them, with respect to the subject
matter hereof; provided, however, the parties expressly agree that the terms and
conditions of the November 1997 Agreement are in no manner amended, modified or
waived by this Stockholders Agreement. Except as expressly set forth herein,
the provisions of the Registration Rights Agreement shall not be amended,
modified or waived by this Stockholders Agreement. This Stockholders Agreement
and all of the rights, interests and obligations under this Stockholders
Agreement may only be assigned by MSI or Telcom, respectively, in connection
with a transfer by MSI or Telcom, respectively, of all, but not less than all,
of the shares of voting stock of the Company held by the transferor at the time
of such transfer to the transferee; provided, that in connection with any such
transfer, MSI or Telcom, as applicable, shall require such transferee to
unconditionally agree in writing to become a "party" and a "Stockholder" for
purposes of this Stockholders Agreement and to be bound by the terms and
conditions hereof ; provided, further, that such shares of voting stock of the
Company being transferred must represent in the aggregate no less than 25% of
the voting stock of the Company beneficially owned by MSI or Telcom, as
applicable, as of the Effective Time (as adjusted for stock splits, stock
dividends, reverse stock splits and similar events). Notwithstanding the
foregoing or any other provisions of this Stockholders Agreement, in no event
shall any transferee acquiring shares from a Stockholder in connection with a
bona fide public offering or a Rule 144 sale become or be required to become a
party hereto or bound hereby. Any purported assignment in violation of this
Section 10 shall be void.
Exhibit I-7
Section 11. Parties in Interest; Certain Events. Except as
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specifically set forth in Sections 4 and 10 this Stockholders Agreement shall be
binding upon and inure solely to the benefit of each party hereto, and nothing
in this Stockholders Agreement, express or implied, is intended to or shall
confer upon any other person any right, benefit or remedy of any nature
whatsoever under or by reason of this Stockholders Agreement.
Section 12. Specific Performance. The parties hereto agree that
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irreparable damage would occur in the event any provision of this Stockholders
Agreement were not performed in accordance with the terms hereof and that the
parties shall be entitled to specific performance of the terms hereof, in
addition to any other remedy at law or equity.
Section 13. Governing Law. This Stockholders Agreement shall be
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governed by and construed in accordance with the laws of the State of Delaware,
without regard to any principles of conflicts of laws of such State.
Section 14. Consent to Jurisdiction. (a) Subject to Section 18
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hereof, each party hereby irrevocably submits to the exclusive jurisdiction of
the courts of the State of Delaware and to the jurisdiction of the United States
District Court for the State of Delaware, for the purpose of any action or
proceeding arising out of or relating to this Stockholders Agreement, and each
party hereby irrevocably agrees that all claims in respect of such action or
proceeding shall be heard and determined exclusively in any Delaware state or
federal court. Each party agrees that a final judgment in any action or
proceeding shall be conclusive and may be enforced in other jurisdictions by
suit on the judgment or in any other manner provided by law.
(b) Each party irrevocably consents to the service of the summons and
complaint and any other process in any other action or proceeding relating to
the transactions contemplated by this Stockholders Agreement, on behalf of
itself or its property, by personal delivery of copies of such process to such
party. Nothing in this Section 14 shall affect the right of any party to serve
legal process in any other manner permitted by law.
Section 15. Headings. The descriptive headings contained in this
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Stockholders Agreement are included for convenience of reference only and shall
not affect in any way the meaning or interpretation of this Stockholders
Agreement.
Section 16. Amendments. This Stockholders Agreement may be amended
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or modified, and the terms and conditions hereof may be waived, only by a
written instrument signed by the parties hereto or, in the case of a waiver, by
each party waiving compliance.
Section 17. Counterparts. This Stockholders Agreement may be
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executed and delivered (including by facsimile transmission) in one or more
counterparts, and by the different parties hereto in separate counterparts, each
of which when executed and delivered shall be deemed to be an original but all
of which taken together shall constitute one and the same agreement.
Exhibit I-8
Section 18. WAIVER OF JURY TRIAL. EACH PARTY HEREBY IRREVOCABLY
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WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM
(WHETHER BASED ON CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR RELATING TO
THIS STOCKHOLDERS AGREEMENT OR THE ACTIONS OF THE PARTIES IN THE NEGOTIATION,
ADMINISTRATION, PERFORMANCE AND ENFORCEMENT THEREOF.
Exhibit I-9
IN WITNESS WHEREOF, each of the parties hereto has executed or caused
this Stockholders Agreement to be executed as of the date first written above by
its respective officers thereunto duly authorized.
XXXX X. XXXXX,
by
__________________________________
Xxxx X. Xxxxx
TELCOM-DTS INVESTORS, L.L.C.,
by
___________________________________
Name:
Title:
LIBERTY MEDIA CORPORATION,
(for purposes of Section 2(b) only)
by
___________________________________
Name:
Title:
As of the Effective Time: MICROWAVE SERVICES,
INC.,
by
____________________________________
Name:
Title:
Exhibit I-10
