EXHIBIT 7(r)
AMENDED AND RESTATED AGREEMENT
------------------------------
AGREEMENT, dated as of June 23, 1998, and amended and restated as of
October 9, 1998, by and among AT&T Corp., a New York corporation ("Parent"), on
the one hand, and Xx. Xxxx X. Xxxxxx, a resident of Colorado, individually and
in any Representative Capacity (as defined in Schedule I to this Agreement)
("JM"), and Xxxxxx Xxxxxx, a resident of Colorado, individually and in any
Representative Capacity ("LM," and together with JM, the "Stockholders"), on the
other hand.
WHEREAS, concurrently herewith, Parent, Italy Merger Corp., a Delaware
corporation and a wholly owned subsidiary of Parent ("Merger Sub"), and Tele-
Communications, Inc., a Delaware corporation (the "Company"), are entering into
an Agreement and Plan of Restructuring and Merger (as amended or supplemented
from time to time, the "Merger Agreement"; capitalized terms used without
definition herein having the meanings ascribed thereto in the Merger Agreement);
WHEREAS, as of February 9, 1998, the Stockholders own and/or have the
power to vote, as applicable, the number and type of Shares (as defined below)
set forth in Schedule I hereto;
WHEREAS, the Board of Directors of the Company has, prior to the
execution of this Agreement, duly and validly approved and adopted the Merger
Agreement and approved this Agreement, and such approval and adoption have not
been withdrawn;
WHEREAS, approval of the Merger Agreement by the Company's
stockholders is a condition to the consummation of the Merger; and
WHEREAS, as a condition to its entering into the Merger Agreement,
Parent has required that each Stockholder agree, and each Stockholder has
agreed, to enter into this Agreement;
NOW THEREFORE, in consideration of the foregoing and the mutual
covenants and agreements set forth herein, the parties hereto agree as follows:
Section 1. Agreement to Vote. (a) Provided that Parent has not
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breached or violated Section 4(b) hereof, each Stockholder hereby agrees to
attend the Stockholders Meeting of the Company (or any other meeting of
stockholders of the Company at which the matters contemplated by the Merger
Agreement or this Agreement are to be presented to a vote of stockholders of the
Company), in person or by proxy, and to vote (or cause to be voted) all Shares
and any other voting securities of the Company (including any such securities
acquired hereafter but excluding any Shares or other securities the Stockholder
has the right to acquire but has not acquired) that such Stockholder directly or
indirectly owns or has the right to vote or direct the voting (collectively, the
"Covered Shares"), for approval and adoption of the Merger Agreement, the Merger
and any related action reasonably required in furtherance thereof, such
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agreement to vote to apply also to any adjournment or adjournments or
postponement or postponements of the Stockholders Meeting of the Company (or any
such other meeting). Each Stockholder hereby further agrees that until the
Termination Date (as defined below), he or she shall, from time to time, in
connection with any consent solicitation relating to the Merger Agreement,
timely execute and deliver (or cause to be timely executed and delivered) a
written consent with respect to any Covered Shares in favor of the approval and
adoption of the Merger Agreement, the Merger and any action required in
furtherance thereof.
(b) From and after the date hereof until the Termination Date, each
Stockholder hereby agrees to vote (or cause to be voted) any Covered Shares
against any Takeover Proposal and any related action reasonably required in
furtherance thereof, at any meeting of stockholders of the Company (including
any adjournments or postponements thereof) called to consider and vote on any
Takeover Proposal. Each Stockholder further agrees that, until the Termination
Date, in connection with any consent solicitation relating to a Takeover
Proposal, such Stockholder will timely execute and deliver (or cause to be
timely executed and delivered) a written consent with respect to any Covered
Shares against any Takeover Proposal as contemplated by the immediately
preceding sentence. For purposes hereof, the term "Termination Date" shall mean
the first to occur of (a) the 9 month anniversary of the date of termination of
the Merger Agreement, (b) the date of consummation of the Merger and (c) the
date of any breach or violation of Section 4(b) by Parent; provided, however,
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that in the event that the Merger Agreement is terminated after the Parent
Charter Amendment and the issuance of Parent Shares in the Merger has been
submitted to the vote of the stockholders of Parent at the Parent Stockholders
Meeting and not approved and adopted by the requisite holders of Parent Common
Shares at such meeting, or if the Merger Agreement is terminated as a result of
the failure of the Merger to be consummated because of the failure of the
condition in Section 8.1(b) or Section 8.2(e) to be satisfied, the Termination
Date shall be the date of termination of the Merger Agreement.
(c) To the extent inconsistent with the foregoing provisions of this
Section 1, each Stockholder hereby revokes any and all previous proxies with
respect to such Stockholder's Covered Shares; provided, however, that the
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foregoing shall not be deemed to affect the rights of the Xxxxxxx Group (as
defined in the Stockholders Agreement (as defined below)) under that certain
Stockholders Agreement, dated as of February 9, 1998, by and among the Company,
the Stockholders and the members of the Xxxxxxx Group parties thereto (the
"Stockholders Agreement"), it being agreed that JM shall assert his right under
such agreement to vote Covered Shares held by the Xxxxxxx Group in accordance
with this Agreement.
(d) Subject to Section 5(b), each Stockholder agrees to, and to cause
its affiliates to, cooperate reasonably with Parent and the Company in
connection with the Merger Agreement and the consummation of the transactions
contemplated thereby.
(e) Nothing herein contained shall (i) restrict, limit or prohibit JM
from exercising (in his capacity as a director or officer) his fiduciary duties
to the stockholders of the Company under applicable Law, or (ii) require JM, in
his capacity as an officer of the Company, to take any action in contravention
of, or omit to take any action pursuant
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to, or otherwise take or refrain from taking any actions which are inconsistent
with, instructions or directions of the Board of Directors of the Company
undertaken in the exercise of its fiduciary duties, provided that nothing in
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this Section 1(e) shall relieve or be deemed to relieve JM from his obligations
under Sections 1 or 2 of this Agreement.
Section 2. Disposition of Shares. From and after the date hereof
---------------------
until the Termination Date, each Stockholder hereby agrees that such Stockholder
will not directly or indirectly sell, pledge, encumber, grant any proxy or enter
into any voting or similar agreement with respect to, transfer or otherwise
dispose of (collectively, "Transfer"), or agree or contract to Transfer, any
Covered Shares (or any interest therein) with respect to which a Stockholder
directly or indirectly controls the right to Transfer; provided, however, that
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(i) JM shall be entitled to sell (directly or indirectly) (x) from the date
hereof until the date of termination of the Merger Agreement, up to an aggregate
of 2,000,000 Shares, and (y) from the date of termination of the Merger
Agreement to the Termination Date, up to an aggregate of an additional 3,000,000
Shares, and (ii) JM shall be entitled to pledge and encumber Shares as provided
in Exhibit A.
Section 3. Securities Act Covenants and Representations. Each
--------------------------------------------
Stockholder hereby agrees and represents to Parent as follows:
(a) Such Stockholder has been advised that the offering, sale and
delivery of Parent Common Shares and Parent VP Tracking Shares pursuant to the
Merger will be registered under the Securities Act on a Registration Statement
on Form S-4. Such Stockholder has also been advised, however, that to the extent
such Stockholder is considered an "affiliate" of the Company at the time the
Merger Agreement is submitted for a vote of the stockholders of the Company, any
public offering or sale by such Stockholder of any Parent Common Shares or
Parent VP Tracking Shares received by such Stockholder in the Merger will, under
current law, require either (i) the further registration under the Securities
Act of any Parent Common Shares or Parent VP Tracking Shares to be sold by such
Stockholder, (ii) compliance with Rule 145 promulgated by the SEC under the
Securities Act or (iii) the availability of another exemption from such
registration under the Securities Act. Such Stockholder agrees to execute and
deliver an Affiliate Letter as contemplated by the Merger Agreement.
(b) Such Stockholder has read this Agreement and the Merger Agreement
and has discussed their requirements and other applicable limitations upon such
Stockholder's ability to sell, transfer or otherwise dispose of Parent Common
Shares or Parent VP Tracking Shares, to the extent such Stockholder believed
necessary, with such Stockholder's counsel or counsel for the Company.
(c) Such Stockholder also understands that stop transfer instructions
will be given to Parent's transfer agents with respect to Parent Common Shares
and Parent VP Tracking Shares and that a legend will be placed on the
certificates for the Parent Common Shares and Parent VP Tracking Shares issued
to such Stockholder, or any substitutions therefor, to the extent such
Stockholder is considered an "affiliate" of the
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Company at the time the Merger Agreement is submitted for a vote of the
stockholders of the Company.
Section 4. Other Covenants and Agreements.
------------------------------
(a) Further Assurances. Each party shall execute and deliver such
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additional instruments and other documents and shall take such further actions
as may be reasonably necessary or appropriate to effectuate, carry out and
comply with all of their obligations under this Agreement. Without limiting the
generality of the foregoing, none of the parties hereto shall enter into any
agreement or arrangement (or alter, amend or terminate any existing agreement or
arrangement) or take any other action (or fail to take any other action) if such
action (or failure) would materially impair the ability of any party to
effectuate, carry out or comply with all the terms of this Agreement. Parent
agrees to cooperate with each Stockholder in connection with any filings
required to be made by such Stockholder in connection with the Merger and the
transactions contemplated thereby.
(b) Parent shall not require, nor shall any provision of this
Agreement be deemed to require, any Stockholder to agree in his or her capacity
as a stockholder, and shall not agree on behalf of any Stockholder in such
Stockholder's capacity as a stockholder, to the inclusion in any Authorization
required in connection with the Merger or the other transactions contemplated by
the Merger Agreement of any restriction on any Stockholder's exercise and
enjoyment in his and her capacity as a stockholder of full rights of ownership
of Parent Shares to be acquired in the Merger (including, without limitation,
the voting rights related thereto); provided however that the foregoing shall
----------------
not limit or reduce any of the obligations of the Company pursuant to the Merger
Agreement or otherwise alter the rights and obligations of the parties pursuant
to the Merger Agreement or apply to any matters set forth in the Merger
Agreement relating to the Company or any of its Subsidiaries or their respective
assets, businesses or properties.
Section 5. Representations and Warranties of Parent. Parent
----------------------------------------
represents and warrants, severally and not jointly, to each Stockholder as
follows: Each of this Agreement and the Merger Agreement has been approved by
the Board of Directors of Parent, and the Merger Agreement has been approved by
the Board of Directors of Merger Sub and by Parent as the sole stockholder of
Merger Sub, in each case representing all necessary corporate action on the part
of Parent and Merger Sub, except for the approval of Parent's stockholders
contemplated by the Merger Agreement. Each of this Agreement and the Merger
Agreement has been duly executed and delivered by a duly authorized officer of
Parent and, in the case of the Merger Agreement, Merger Sub. Each of this
Agreement and the Merger Agreement constitutes a valid and binding agreement of
Parent and, in the case of the Merger Agreement, Merger Sub, enforceable against
Parent and, in the case of the Merger Agreement, Merger Sub.
Section 6. Representations and Warranties of the Stockholders. (a)
--------------------------------------------------
Each Stockholder represents and warrants to Parent as follows: Such Stockholder
has the power and authority to execute and deliver this Agreement. This
Agreement has been
Page 91 of 112 Pages
duly executed and delivered by such Stockholder. This Agreement constitutes the
valid and binding agreement of such Stockholder. Except as provided in Exhibit
A, such Stockholder has the full power and authority to vote, or execute a
consent, with respect to, all Covered Shares as contemplated hereby. The
securities of the Company listed next to the name of such Stockholder on Part A
of Schedule I hereto are the only securities of the Company owned by such
Stockholder and over which such Stockholder has the power to vote (or direct the
voting), the securities of the Company listed next to the name of such
Stockholder on Part B of Schedule I hereto are the only securities of the
Company owned by such Stockholder over which such Stockholder does not have the
power to vote (or direct the voting), and the securities of the Company listed
next to the name of such Stockholder on Part C of Schedule I hereto are the only
securities of the Company not owned by Stockholder but over which such
Stockholder has the power to vote (collectively, the "Shares").
(b) Except as provided in Exhibit A, each Stockholder is the lawful
owner of the Shares listed on Parts A and B of Schedule I as owned by it, free
and clear of all liens, charges, encumbrances and commitments of every kind,
other than this Agreement, and each Stockholder has the power to vote (including
by an irrevocable power to vote or execute a consent) the Shares listed on Parts
A and C of Schedule I. The execution and delivery by such Stockholder of this
Agreement does not violate or breach any law, contract, instrument, agreement or
arrangement to which such Stockholder is a party or by which such Stockholder is
bound. Since February 9, 1998 through the date hereof, the Stockholders' have
not sold more than 500,000 Shares in the aggregate.
Section 7. Effectiveness. It is a condition precedent to the
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effectiveness of this Agreement that the Merger Agreement shall have been duly
adopted and approved and executed and delivered by the parties thereto, but the
termination of the Merger Agreement shall not impair the effectiveness of this
Agreement except to the extent expressly set forth herein. No action by the
Company pursuant to Section 7.2 of the Merger Agreement (or any other provision
of the Merger Agreement) other than actions that give rise to a Termination Date
shall relieve or be deemed to relieve the Stockholders from their obligations
under this Agreement.
Section 8. Miscellaneous.
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(a) Notices, Etc. All notices, requests, demands or other
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communications required by or otherwise with respect to this Agreement shall be
in writing and shall be deemed to have been duly given to any party when
delivered personally (by courier service or otherwise), when delivered by
telecopy and confirmed by return telecopy, or one day after being mailed by
courier service that guarantees overnight delivery, in each case to the
applicable addresses set forth below:
If to Parent:
AT&T Corp.
000 Xxxxx Xxxxx Xxxxxx
Page 92 of 112 Pages
Xxxxxxx Xxxxx, Xxx Xxxxxx 00000
Attn: Vice President-Law and Corporate Secretary
Telecopy: (000) 000-0000
with a copy to:
Xxxxxxx X. Xxxxxxx, Esq.
Xxxxxx X. Xxxxxxxxx, Esq.
Wachtell, Lipton, Xxxxx & Xxxx
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopy: (000) 000-0000
If to the Stockholders:
Xxxx X. Xxxxxx
Tele-Communications, Inc.
0000 XXX Xxxxxxx
Xxxxxxxxx, Xxxxxxxx 00000
with a copy to:
Xxxxx & Xxxxx
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxxxxx X. XxXxxxx
Telecopy: (000) 000-0000
or to such other address as such party shall have designated by notice so given
to each other party.
(b) Amendments, Waivers, Etc. This Agreement may not be amended,
-------------------------
changed, supplemented, waived or otherwise modified or terminated except by an
instrument in writing signed by Parent and each Stockholder.
(c) Successors and Assigns. This Agreement shall be binding upon and
----------------------
shall inure to the benefit of and be enforceable by the parties and their
respective successors and assigns, including without limitation in the case of
Parent any corporate successor by merger or otherwise, and in the case of a
Stockholder any trustee, executor, heir, legatee or personal representative
succeeding to the ownership of (or power to vote) such Stockholder's Covered
Shares or other securities subject to this Agreement (including as a result of
the death, disability or incapacity of a Stockholder).
(d) Entire Agreement. This Agreement (together with the Merger
----------------
Agreement) embodies the entire agreement and understanding among the parties
relating to the subject matter hereof and supersedes all prior agreements and
understandings relating to such subject matter. There are no representations,
warranties or covenants by
Page 93 of 112 Pages
the parties hereto relating to such subject matter other than those expressly
set forth in this Agreement and the Merger Agreement.
(e) Severability. If any term of this Agreement or the application
------------
thereof to any party or circumstance shall be held invalid or unenforceable to
any extent, the remainder of this Agreement and the application of such term to
the other parties or circumstances shall not be affected thereby and shall be
enforced to the greatest extent permitted by applicable law, provided that in
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such event the parties shall negotiate in good faith in an attempt to agree to
another provision (in lieu of the term or application held to be invalid or
unenforceable) that will be valid and enforceable and will carry out the
parties' intentions hereunder.
(f) Specific Performance. The parties acknowledge that money damages
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are not an adequate remedy for violations of this Agreement and that any party
may, in its sole discretion, apply to a court of competent jurisdiction for
specific performance or injunctive or such other relief as such court may deem
just and proper in order to enforce this Agreement or prevent any violation
hereof and, to the extent permitted by applicable law, each party waives any
objection to the imposition of such relief.
(g) Remedies Cumulative. All rights, powers and remedies provided
-------------------
under this Agreement or otherwise available in respect hereof at law or in
equity shall be cumulative and not alternative, and the exercise or beginning of
the exercise of any thereof by any party shall not preclude the simultaneous or
later exercise of any other such right, power or remedy by such party.
(h) No Waiver. The failure of any party hereto to exercise any
---------
right, power or remedy provided under this Agreement or otherwise available in
respect hereof at law or in equity, or to insist upon compliance by any other
party hereto with its obligations hereunder, and any custom or practice of the
parties at variance with the terms hereof, shall not constitute a waiver by such
party of his or her right to exercise any such or other right, power or remedy
or to demand such compliance.
(i) No Third Party Beneficiaries; Severability. This Agreement is
------------------------------------------
not intended to be for the benefit of and shall not be enforceable by any person
or entity who or which is not a party hereto. The obligations of each
Stockholder hereunder are several and not joint and neither Stockholder shall be
liable for the actions of the other Stockholder.
(j) Jurisdiction. Each party hereby irrevocably submits to the
------------
exclusive jurisdiction of the Court of Chancery in the State of Delaware or the
United States District Court for the Southern District of New York or any court
of the State of New York located in the City of New York in any action, suit or
proceeding arising in connection with this Agreement, and agrees that any such
action, suit or proceeding shall be brought only in such court (and waives any
objection based on forum non conveniens or any other objection to venue
----- --- ----------
therein); provided, however, that such consent to jurisdiction is solely for the
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purpose referred to in this paragraph (j) and shall not be deemed to be a
general submission to the jurisdiction of said Courts or in the States of
Delaware or New York
Page 94 of 112 Pages
other than for such purposes. Each party hereto hereby waives any right to a
trial by jury in connection with any such action, suit or proceeding.
(k) Governing Law. This Agreement and all disputes hereunder shall
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be governed by and construed and enforced in accordance with the General
Corporation Law of the State of Delaware to the fullest extent possible.
(l) Name, Captions, Gender. The name assigned this Agreement and the
----------------------
section captions used herein are for convenience of reference only and shall not
affect the interpretation or construction hereof. Whenever the context may
require, any pronoun used herein shall include the corresponding masculine,
feminine or neuter forms.
(m) Counterparts. This Agreement may be executed in any number of
------------
counterparts, each of which shall be deemed to be an original, but all of which
together shall constitute one instrument. Each counterpart may consist of a
number of copies each signed by less than all, but together signed by all, the
parties hereto.
(n) Expenses. Parent and each Stockholder shall bear its, his or her
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own expenses incurred in connection with this Agreement and the transactions
contemplated hereby.
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IN WITNESS WHEREOF, the parties have duly executed this Agreement as
of the date first above written.
AT&T CORP.
By: /s/ Xxxxxx X. Xxxxxx
--------------------------
Name: Xxxxxx X. Xxxxxx
Title:
/s/ Xxxx X. Xxxxxx
-----------------------------
Xxxx X. Xxxxxx
/s/ Xxxxxx Xxxxxx
-----------------------------
Xxxxxx Xxxxxx
Page 96 of 112 Pages
SCHEDULE I
----------
SHARE OWNERSHIP/1/
As of February 9, 1998
PART A -- SHARES OWNED AND VOTED
--------------------------------
TCI Group Liberty Media Group TCI Ventures
Group
---------------------------------------------------------------------------------
Class B Class A Class B Shares Class A Class B Class A Class B
Name of Stockholder Preferred Shares Shares Shares Shares Shares
------------------------- -----------------------------------------------------------------------------------------------
JM 266,700 146 21,186,999 81 12,501,217 -0- 21,241,254
LM 6,900 -0- 784,892 12,726 439,875 -0- 793,240
-----------------------------------------------------------------------------------------------
Total 273,600 146 21,971,891 12,807 12,941,092 -0- 22,034,494
-----------------------------------------------------------------------------------------------
PART B -- SHARES OWNED BUT NOT VOTED
------------------------------------
TCI Group Liberty Media Group TCI Ventures
Group
---------------------------------------------------------------------------------
Class B Class A Class B Class A Class B Class A Class B
Name of Stockholder Preferred Shares Shares Shares Shares Shares Shares
-------------------- ---------------------------------------------------------------------------------------------------------
JM -0- -0- -0- -0- -0- -0- -0-
XX -0- -0- -0- -0- -0- -0- -0-
--------------------------------------------------------------------------------------------------------
Total -0- -0- -0- -0- -0- -0- -0-
--------------------------------------------------------------------------------------------------------
PART C -- SHARES VOTED BUT NOT OWNED
------------------------------------
TCI Group Liberty Media TCI Ventures
Group Group
--------------------------------------------------------------------------------
Class B Class A Class B Class A Class B Class A Class B
Name of Stockholder Preferred Shares Shares Shares Shares Shares Shares
-------------------- --------------------------------------------------------------------------------------------------------
JM -0- -0- 18,204,656 -0- 14,292,719 -0- 20,405,394
LM -0- -0- -0- -0- -0- -0- -0-
--------------------------------------------------------------------------------------------------------
Total -0- -0- 18,204,656 -0- 14,292,719 -0- 20,405,394
--------------------------------------------------------------------------------------------------------
________________________________
/1/ Includes shares to the extent beneficially owned by such Stockholder in a
Representative Capacity. For purposes of this Agreement, "Representative
Capacity" means as proxy, an executor or administrator of any estate, a trustee
of any trust or in any other fiduciary or representative capacity (other than as
trustee or administrator of any employee benefit plan) if such Person, in such
capacity, directly or indirectly possesses the power to vote or dispose or
direct the voting of any Shares.
Page 97 of 112 Pages
Exhibit A
JM may, at any time and from time to time, pledge up to an aggregate of 30
million Shares to banks or other financial institutions to secure indebtedness.
Such pledges and loans are or will be on customary terms and conditions and do
not and will not interfere with the ability of JM to vote or otherwise comply
with his obligations hereunder in any material respect except as set forth in
the following sentence. Such pledges and loans, with respect to up to an
aggregate of 22 million Shares, may contain terms that permit the banks or other
financial institutions, in the event of a default, to sell the pledged Shares
free and clear of any obligations or restrictions under this Voting Agreement
and, in the event of such a sale, the parties agree that the obligations and
restrictions set forth in this Voting Agreement shall not apply to such Shares;
provided, that the terms of any such pledge or loan shall require the applicable
banks or financial institutions to convert any Series B Shares to Series A
Shares prior to any such sale; and provided, further, that in the event that any
such pledge or loan contains such provisions, JM shall use his best efforts to
avoid and prevent the occurrence of any default under such pledge or loan.
The shares of Series B TCI Group Common Stock, Series B Liberty Media Group
Common Stock and Series B TCI Ventures Group Common Stock owned by the
Stockholders are subject to the provisions of a call agreement, dated as of
February 9, 1998, among the Stockholders and TCI.
Page 98 of 112 Pages
