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EXHIBIT 99.2
COUNTERPART AGREEMENT
THIS COUNTERPART AGREEMENT (this "Agreement") is made as of September
13, 1999, by and among the parties listed on the signature pages hereto
(collectively, the "Sellers"), Xxxx X. Xxxxx ("Xxxxx") and Xxxxxxx X. Xxxxxx
("Xxxxxx").
WHEREAS, the Sellers, Vulcan Ventures Incorporated ("Buyer") and
Allegiance Telecom, Inc. ("Allegiance") have entered into that certain Common
Stock Purchase and Option Agreement dated as of August 3, 1999, a copy of which
is attached hereto as Exhibit A (the "Purchase Agreement"). Pursuant to the
Purchase Agreement, at the Initial Closing, the Sellers intend to sell and Buyer
intends to purchase, an aggregate of 1,500,000 shares of the common stock of
Allegiance (the "Shares"). Capitalized terms used but not otherwise defined
herein have the meanings given to such terms in the Purchase Agreement.
WHEREAS, the Sellers wish to assign to Xxxxx and Xxxxxx, their right to
sell to Buyer, that number of Shares as set forth herein.
WHEREAS, the parties hereto desire that each of Xxxxx and Xxxxxx become
a party to the Purchase Agreement as set forth herein.
NOW, THEREFORE, in consideration of the premises and the mutual
promises herein made, and in consideration of the covenants herein contained,
the parties hereto agree as follows:
1. Addition of Xxxxx and Xxxxxx to the Purchase Agreement. The parties hereto
agree that, by and upon execution of this Agreement, each of Xxxxx and Xxxxxx
shall as of the date hereof, (a) be a party to the Purchase Agreement and shall
for all purposes be considered a "Seller" thereunder (including, but not limited
to, making the representations and warranties set forth in Section 7 of the
Purchase Agreement, as of the date hereof) and (b) be entitled to all of the
rights and benefits and subject to all of the duties and obligations of a Seller
thereunder, as fully as if Xxxxx and Xxxxxx were an original signatory thereto
in such capacities. Notwithstanding anything herein to the contrary, neither
Xxxxx nor Xxxxxx shall have any right to participate in the sale of any Option
Shares.
2. Number of Shares to be Sold. The Sellers hereby assign to: (a) Xxxxx, the
right to sell an aggregate of 15,000 Shares and (b) Xxxxxx, the right to sell an
aggregate of 10,000 Shares. The number of Shares to be sold to Buyer at the
Initial Closing by each of the Sellers, Xxxxx and Xxxxxx is set forth on
Schedule I hereto.
3. Continuing Effect. This Agreement shall not constitute an amendment or waiver
of any provision of the Purchase Agreement, which shall continue and remain in
full force and effect in accordance with its terms.
4. Amendments. No amendment, modification or waiver of any provision of this
Agreement shall be valid unless the same shall be in writing and signed by each
party hereto.
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COUNTERPART AGREEMENT Final
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5. Complete Agreement. This Agreement including Exhibit A and Schedule I
attached hereto embody the complete agreement and understanding among the
parties hereto with respect to the subject matter hereof and supersedes and
preempts any prior understandings, agreements or representations by or among the
parties, written or oral, which may have related to the subject matter hereof in
any way.
6. Counterparts. This Agreement may be executed in two or more counterparts
(including by means of telecopied signature pages), each of which shall be
deemed to be an original, but all of which taken together shall constitute one
and the same agreement.
7. Assignment. Neither Xxxxx nor Xxxxxx may assign either this Agreement or any
of its rights, interests, or obligations hereunder without the prior written
approval of each of the Sellers. This Agreement is intended to bind and inure to
the benefit of and be enforceable by the parties hereto and their respective
successors and permitted assigns.
8. GOVERNING LAW. THE CORPORATE LAW OF THE STATE OF DELAWARE SHALL GOVERN ALL
ISSUES AND QUESTIONS CONCERNING THE RELATIVE RIGHTS OF ALLEGIANCE AND ITS
STOCKHOLDERS. ALL OTHER ISSUES AND QUESTIONS CONCERNING THE CONSTRUCTION,
VALIDITY, INTERPRETATION AND ENFORCEMENT OF THIS AGREEMENT AND THE EXHIBITS AND
SCHEDULES HERETO SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE
LAWS OF THE STATE OF ILLINOIS, WITHOUT GIVING EFFECT TO ANY CHOICE OF LAW OR
CONFLICT OF LAW RULES OR PROVISIONS (WHETHER OF THE STATE OF ILLINOIS OR ANY
OTHER JURISDICTION) THAT WOULD CAUSE THE APPLICATION OF THE LAWS OF ANY
JURISDICTION OTHER THAN THE STATE OF ILLINOIS.
9. Headings. The section headings contained in this Agreement are inserted for
convenience only and shall not affect in any way the meaning or interpretation
of this Agreement.
10. Delivery by Facsimile. This Agreement, the agreements referred to herein,
and each other agreement or instrument entered into in connection herewith or
therewith or contemplated hereby or thereby, and any amendments hereto or
thereto, to the extent signed and delivered by means of a facsimile machine,
shall be treated in all manner and respects as an original agreement or
instrument and shall be considered to have the same binding legal effect as if
it were the original signed version thereof delivered in person. At the request
of any party hereto or to any such agreement or instrument, each other party
hereto or thereto shall reexecute original forms thereof and deliver them to all
other parties. No party hereto or to any such agreement or instrument shall
raise the use of a facsimile machine to deliver a signature or the fact that any
signature or agreement or instrument was transmitted or communicated through the
use of a facsimile machine as a defense to the formation or enforceability of a
contract and each such party forever waives any such defense.
* * * * *
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IN WITNESS WHEREOF, the parties hereto have executed this Counterpart
Agreement as of the date first above written.
/s/ XXXX X. XXXXX
-----------------------------------------
XXXX X. XXXXX
/s/ XXXXXXX X. XXXXXX
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XXXXXXX X. XXXXXX
SELLERS:
MADISON DEARBORN CAPITAL PARTNERS II,
L.P.
By: Madison Dearborn Partners II, L.P.,
its general partner
By: Madison Dearborn Partners, Inc., its
general partner
By: /s/ XXXX X. XXXXXX
--------------------------------------
Name: Xxxx X. Xxxxxx
------------------------------------
Its: Chief Financial Officer
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FRONTENAC VII LIMITED PARTNERSHIP
By: Frontenac Company VII, LLC, its
general partner
By: /s/ XXXXX X. XXXXXXXX III
--------------------------------------
Name: Xxxxx X. Xxxxxxxx III
------------------------------------
Its: Member
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FRONTENAC MASTERS VII LIMITED PARTNERSHIP
By: Frontenac Company VII, LLC, its
general partner
By: /s/ XXXXX X. XXXXXXXX III
--------------------------------------
Name: Xxxxx X. Xxxxxxxx III
------------------------------------
Its: Member
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BATTERY VENTURES IV, L.P.
By: Battery Partners IV, L.P., its
general partner
By: /s/ XXXXXXX XXXXXXX
--------------------------------------
Name: Xxxxxxx Xxxxxxx
------------------------------------
Its: Member Manager
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BATTERY INVESTMENT PARTNERS IV, LLC
By: /s/ XXXXXXX XXXXXXX
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Name: Xxxxxxx Xxxxxxx
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Its: Member Manager
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COUNTERPART AGREEMENT Xxxxx
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SCHEDULE I
SHARES TO BE SOLD AT THE
STOCKHOLDER INITIAL CLOSING
-------------------------------------------------------- ------------------------
Madison Dearborn Capital Partners II, L.P. 884,382
Frontenac VII Limited Partnership 346,251
Frontenac Masters VII Limited Partnership 17,313
Battery Ventures IV, L.P. 223,648
Battery Investment Partners IV, LLC 3,406
Xxxx Xxxxx 15,000
Xxxx Xxxxxx 10,000
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TOTAL 1,500,000
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