Exhibit 2.7
COMPOSITE COPY(1)
INSTRUMENT OF ADMISSION
WHEREAS Microsoft Corporation, a Washington corporation ("MICROSOFT"), and
Comcast Corporation, a Pennsylvania corporation ("COMCAST"), are parties to an
Exchange Agreement dated as of December 7, 2001 (the "AGREEMENT)(capitalized
terms used herein and not defined have the meanings specified in the Agreement);
and
WHEREAS, AT&T Corp., a New York corporation ("AT&T"), and AT&T Comcast
Corporation, a Pennsylvania corporation ("PARENT"), desire to become parties to
the Agreement;
NOW, THEREFORE, in consideration of the premises and undertakings
contained herein, and for other good and valuable consideration, AT&T and Parent
agree as follows:
ARTICLE 1
ADMISSION TO AGREEMENT; EXCHANGE
Section 1.01. Admission to Agreement. Effective the date hereof, AT&T and
Parent are hereby made parties to the Agreement and are, in addition to the
obligations specifically undertaken herein, fully bound by, and subject to, such
provisions of the Agreement as by their terms apply specifically to AT&T or
Parent, respectively, and to all of the covenants, terms and conditions
applicable to all parties of the Agreement, as if they were original parties
thereto. For the avoidance of doubt and notwithstanding anything else contained
herein, before the Effective Time neither AT&T nor any of its Affiliates shall,
and after the Effective Time neither AT&T nor any if its Affiliates at that time
shall, be subject to or bound by Article 2 of the Agreement, it being understood
that after the Effective Time Parent will not be an Affiliate of AT&T.
Section 1.02. Exchange. AT&T agrees to effect the Exchange in the manner
provided and upon the terms and conditions set forth in Section 3.01 and 3.02 of
the Agreement, and to unwind the Exchange in the event such unwind is required
pursuant to Section 3.03 of the Agreement.
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(1) Reflects amendments enacted by Amendment No. 1 to the Exchange Agreement,
dated as of March 11, 2002.
Section 1.03. Status as Parties. Each of the parties hereto and to the
Agreement agrees and acknowledges that, in accordance with Section 6.01 of the
Agreement, AT&T and Parent shall, from the date hereof, be entitled to the
benefits arising from the Agreement as if they were original parties thereto.
ARTICLE 2
REPRESENTATIONS AND WARRANTIES OF AT&T
AT&T represents and warrants to Microsoft as of the date hereof and as of
the Closing that:
Section 2.01. Corporate Existence And Power. AT&T is a corporation duly
incorporated, validly existing and in good standing under the laws of its
jurisdiction of incorporation and has all corporate powers required to carry on
its business as currently conducted.
Section 2.02. Corporate Authorization. The execution, delivery and
performance by AT&T of this Instrument of Admission and of the Agreement and the
consummation by AT&T of the transactions contemplated hereby and thereby are
within AT&T's corporate powers and have been duly authorized by all necessary
corporate action on the part of AT&T. Each of this Instrument of Admission and
the Agreement constitutes a valid and binding agreement of AT&T, enforceable
against AT&T in accordance with its terms, except (i) as the same may be limited
by applicable bankruptcy, insolvency, moratorium or similar laws of general
application relating to or affecting creditors' rights and (ii) for the
limitations imposed by general principles of equity.
Section 2.03. Authorization. The execution, delivery and performance by
AT&T of this Instrument of Admission and of the Agreement require no action by
or in respect of, or filing with, any governmental or non-governmental body,
agency or official or any other Person other than (i) compliance with any
applicable requirements of the HSR Act; (ii) compliance with any applicable
requirements of the 1933 Act, the 1934 Act, and any other applicable securities
laws, whether United States, state or foreign; (iii) such actions by or in
respect of, or filings with, any governmental or non-governmental body, agency
or official or any other Person as are required to complete the Mergers and
which shall have been obtained or completed, as applicable, prior to Closing;
and (iv) any other actions or filings that are immaterial to the consummation of
the transactions contemplated hereby.
Section 2.04. Noncontravention. The execution, delivery and performance of
this Instrument of Admission and of the Agreement by AT&T do not and will not
(i) violate the certificate of incorporation, bylaws or other governing
organizational documents of AT&T, (ii) assuming compliance with the matters
referred to in Section 2.03, violate any applicable law, rule, regulation,
judgment, injunction, order or decree, except for any such violations which
would
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not be material to the transactions contemplated hereby or (iii) conflict with,
or result in a violation or breach of any provision of, or constitute a default
(or an event which, with the giving of notice, the passage of time, or both, or
otherwise, would constitute a default) under or a termination of, or entitle any
party (with the giving of notice, the passage of time, or both, or otherwise) to
terminate, accelerate, modify or call a default under, any of the terms,
conditions or provisions of any note, bond, debenture, mortgage, indenture,
guarantee, deed of trust, intellectual property or other license, contract,
permit, license, agreement, lease or other instrument to which AT&T or any of
its Controlled Affiliates is a party or by which its assets or properties may be
affected, or result in the creation of any Lien upon any of the properties or
assets of AT&T or any of its Controlled Affiliates, which in each case would be
material to the transactions contemplated hereby.
Section 2.05. Authorization Of Exchange Shares. Any Exchange Shares
transferred by AT&T to Microsoft shall, at the time of the Closing, have been
duly authorized by all requisite corporate action of AT&T Broadband and shall,
when delivered in accordance with the terms of the Agreement, be validly issued
and outstanding, fully paid and nonassessable, free and clear of any Liens and
not subject to preemptive or other similar rights of the stockholders of AT&T
Broadband.
ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF PARENT
Parent represents and warrants to Microsoft as of the date hereof and as
of the Closing that:
Section 3.01. Corporate Existence And Power. Parent is a corporation duly
incorporated, validly existing and in good standing under the laws of its
jurisdiction of incorporation and has all corporate powers required to carry on
its business as currently conducted.
Section 3.02. Authorization. The execution, delivery and performance by
Parent of this Instrument of Admission and of the Agreement require no action by
or in respect of, or filing with, any governmental or non-governmental body,
agency or official or any other Person other than (i) compliance with any
applicable requirements of the HSR Act; (ii) compliance with any applicable
requirements of the 1933 Act, the 1934 Act, and any other applicable securities
laws, whether United States, state or foreign; (iii) such actions by or in
respect of, or filings with, any governmental or non-governmental body, agency
or official or any other Person as are required to complete the Mergers and
which shall have been obtained or completed, as applicable, prior to Closing;
and (iv) any other actions or filings that are immaterial to the consummation of
the transactions contemplated hereby.
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Section 3.03. Noncontravention. The execution, delivery and performance of
this Instrument of Admission and of the Agreement by Parent do not and will not
(i) violate the certificate of incorporation, bylaws or other governing
organizational documents of Parent, (ii) assuming compliance with the matters
referred to in Section 3.02, violate any applicable law, rule, regulation,
judgment, injunction, order or decree, except for any such violations which
would not be material to the transactions contemplated hereby or (iii) conflict
with, or result in a violation or breach of any provision of, or constitute a
default (or an event which, with the giving of notice, the passage of time, or
both, or otherwise, would constitute a default) under or a termination of, or
entitle any party (with the giving of notice, the passage of time, or both, or
otherwise) to terminate, accelerate, modify or call a default under, any of the
terms, conditions or provisions of any note, bond, debenture, mortgage,
indenture, guarantee, deed of trust, intellectual property or other license,
contract, permit, license, agreement, lease or other instrument to which Parent
or any of its Controlled Affiliates is a party or by which its assets or
properties may be affected, or result in the creation of any Lien upon any of
the properties or assets of Parent or any of its Controlled Affiliates, which in
each case would be material to the transactions contemplated hereby.
Section 3.04. Authorization Of Parent Shares. (a) Any Parent Shares to be
received by Microsoft as the result of the conversion of Exchange Shares in the
AT&T Broadband Merger shall, at the Effective Time, have been duly authorized by
all requisite corporate action of Parent and shall, when delivered in accordance
with the terms of the Merger Agreement, be validly issued and outstanding, fully
paid and nonassessable, free and clear of any Liens and not subject to
preemptive or other similar rights of the stockholders of Parent.
(b) Any shares of Parent Voting Stock to be received by Microsoft, by any
Affiliate of Microsoft or by any Third Party Transferee as the result of a
Common Stock Exchange shall, at the time of the applicable Common Stock Exchange
Closing, have been duly authorized by all requisite corporate action of Parent
and shall, when delivered in accordance with the terms of this Agreement, be
validly issued and outstanding, fully paid and nonassessable, free and clear of
any Liens and not subject to preemptive or other similar rights of the
stockholders of Parent.
Section 3.05. Anti-takeover. Except for obligations, restrictions or
requirements that are generally applicable to all holders of Parent Common Stock
(without regard to the number of shares held), or as provided in Section 7.04 of
the Agreement, the receipt, holding, transfer and exercise of rights of the
Parent Common Stock in the AT&T Broadband Merger will not (i) subject Microsoft
or any of its Affiliates to any obligations under Pennsylvania law, the
governing organizational documents of Parent or any agreement of the Parent
(other than the Agreement or the Transaction Agreements) in respect of Parent or
any of its shareholders, (ii) restrict Microsoft or any of its Affiliates from
engaging in any transaction with Parent, its Subsidiaries or its shareholders or
(iii) subject
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Microsoft or any of its Affiliates to any higher vote or other requirement in
respect of any transaction with Parent, its Subsidiaries or its shareholders. To
the extent applicable, Parent has taken all action necessary or advisable to
render irrevocably inapplicable, subject to the Closing, to Microsoft and its
Affiliates any anti-takeover provision of Pennsylvania law contained in the
organizational documents of Parent.
ARTICLE 4
COVENANTS OF AT&T
AT&T agrees that:
Section 4.01. Ownership Of AT&T Broadband Common Stock. AT&T shall, at the
time of the Closing, be the record holder of a sufficient number of shares of
AT&T Broadband Common Stock to effect the Exchange, and shall hold such stock
free and clear of all Liens.
Section 4.02. Closing. At the Closing, AT&T shall (a) effect the Exchange,
(b) deliver the certificate required pursuant to Section 9.01(m) of the
Agreement and (c) cause its counsel to deliver the opinion required pursuant to
Section 9.01(o) of the Agreement.
Section 4.03. Registration Statement; Blue Sky Laws. AT&T shall use its
reasonable best efforts to cause a Registration Statement to become effective
with respect to the Parent Shares, and shall make all other necessary filings
pursuant to the 1933 Act, the 1934 Act and applicable state "blue sky" laws,
prior to the Closing.
Section 4.04. Listing Of Stock. AT&T shall use its reasonable best efforts
to cause the shares of Parent Common Stock to be issued in connection with the
Mergers (other than shares of Parent Class B Common Stock) to be approved for
listing on the Securities Exchange prior to Closing, subject to official notice
of issuance.
ARTICLE 5
COVENANTS OF PARENT
Parent agrees that:
Section 5.01. Closing. (a) At the Exchange Closing, if any, Parent shall
deliver the certificate required pursuant to Section 9.01(n) of the Agreement
and (b) at the Alternative Transaction Closing, if any, Parent shall deliver the
certificate required pursuant to Section 9.02(i) of the Agreement.
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Section 5.02. Registration Statement; Blue Sky Laws. Parent shall use its
reasonable best efforts to cause a Registration Statement to become effective
with respect to the Parent Shares, and shall make all other necessary filings
pursuant to the 1933 Act, the 1934 Act and applicable state "blue sky" laws,
prior to the Closing.
Section 5.03. Listing Of Stock. Parent shall use its reasonable best
efforts to cause the shares of Parent Common Stock to be issued in connection
with the Mergers (other than shares of Parent Class B Common Stock) to be
approved for listing on the Securities Exchange prior to Closing, subject to
official notice of issuance.
Section 5.04. Best Efforts. Parent shall use its reasonable best efforts
to effect the transactions set forth in Section 3.04 of the Agreement, to the
extent such transactions are required pursuant to the terms of Section 3.04 of
the Agreement.
Section 5.05. Reservation Of Parent Voting Stock. Parent shall at all
times reserve and keep available, free from preemptive rights, such number of
its authorized but unissued shares of Parent Voting Stock as may be required to
effect the exchange of shares of Parent Class A Special Common Stock pursuant to
Article 12 of the Agreement.
ARTICLE 6
MISCELLANEOUS
Section 6.01. Notices. Notices to AT&T and Parent shall be given in the
manner provided by Section 11.01 of the Agreement, addressed as follows:
AT&T Corp.
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxx Xxxxx, Xxx Xxxxxx 00000
Attention: Xxxxxxx X. Xxxxxx
Fax: (000) 000-0000
with a copy to:
Xxxxxxxx, Xxxxxx, Xxxxx & Xxxx
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxxxx
Xxxxxx X. Xxxxxxxxx
Xxxxxxxxx X. Xxxxxxxx
Fax: (000) 000-0000
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Section 6.02. Effectiveness. This Instrument of Admission shall become
effective when executed by AT&T and Parent. Executed counterparts hereof shall
be delivered promptly to Microsoft and to Comcast. Except as otherwise provided
herein, the Agreement shall remain in full force and effect in accordance with
its terms unless and until terminated as contemplated thereby.
Section 6.03. Third Party Beneficiary. Microsoft shall be a third party
beneficiary of this Instrument of Admission.
Section 6.04. Governing Law. This Instrument of Admission shall be
governed by and construed in accordance with the law of the State of New York,
without regard to the conflicts of law rules of such State.
Section 6.05. Counterparts. This Instrument of Admission may be signed in
any number of counterparts, each of which shall be an original, with the same
effect as if the signatures thereto and hereto were upon the same instrument.
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IN WITNESS WHEREOF, AT&T and Parent have caused this Instrument of
Admission to be duly executed by their respective authorized officers as of this
19th day of December, 2001.
AT&T CORP.
By: /s/ Xxxxxxx X. Xxxxxx
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Name: Xxxxxxx X. Xxxxxx
Title: Vice President -- Law
and Secretary
AT&T COMCAST CORPORATION
By: /s/ Xxxxx X. Xxxxxxx
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Name: Xxxxx X. Xxxxxxx
Title: President
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