VOTING AGREEMENT
THIS VOTING AGREEMENT ("Agreement") is entered into
effective on the 31st day of October, 1996, by and between Prime
II Management, L.P. ("Prime"), as the designated agent for the
parties named on Annex 1 attached hereto (collectively, "Prime
Sellers"), MCI Telecommunications Corporation, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇,
▇▇▇▇▇▇ ▇. ▇▇▇▇, and TCI GCI, Inc. (Prime, as designated agent for
the Prime Sellers, "▇▇▇▇▇▇," "▇▇▇▇," and "TCI GCI,"
respectively, or individually, "Party" and collectively,
"Parties"), all of whom are shareholders of General
Communication, Inc., an Alaska corporation ("GCI"), as identified
in this Agreement.
WHEREAS, the Parties are as of the date of this Agreement,
the owners of the amounts of GCI's Class A and Class B common
stock as set forth in this Agreement;
WHEREAS, the Parties desire to combine their votes as
shareholders of GCI in the election of certain positions of the
Board of Directors ("Board") of GCI and specifically to vote on
certain issues as set forth in this Agreement;
WHEREAS, the Parties desire to establish their mutual rights
and obligations in regard to the Board and those certain issues
to come before the shareholders or before the Board;
NOW, THEREFORE, in consideration of the mutual covenants and
conditions contained in this Agreement, the Parties agree as
follows:
Section 1. Shares. The shares of GCI's Class A and Class B
common stock subject to this Agreement will consist of those
shares held by each Party as set forth in this Section 1 and any
additional shares of GCI's voting stock acquired in any manner by
any one or more of the Parties ("Shares"):
(1) Prime - 11,800,000 shares of Class A common stock;
(2) MCI - 8,251,509 Shares of Class A common stock and
1,275,791 Shares of Class B common stock, which
total to an aggregate of 21,009,419 votes for MCI;
(3) ▇▇▇▇▇▇ - 852,775 Shares of Class A common stock and
233,708 Shares of Class B common stock, which total
to an aggregate of 3,189,855 votes for ▇▇▇▇▇▇;
(4) ▇▇▇▇ - 534,616 Shares of Class A common stock and
301,049 Shares of Class B common stock, which total
to an aggregate of 3,545,106 votes for ▇▇▇▇; and
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(5) TCI GCI - 590,043 Shares of Class B common stock,
which totals to an aggregate of 5,900,430 votes for
TCI GCI.
Section 2. Voting. (a) All of the Shares will, during the
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term of this Agreement, be voted as one block in the following
matters:
(1) For so long as the full membership on the Board is
at least eight, the election to the Board of
individuals recommended by a Party ("Nominees"),
with the allocation of such recommendations
to be in the following amounts and by the following
identified Parties:
(A) For recommendations from MCI, two Nominees;
(B) For recommendations from ▇▇▇▇▇▇ and ▇▇▇▇,
one Nominee from each;
(C) For recommendations from TCI GCI, two
Nominees; and
(D) For recommendations from Prime, two (2)
nominees, for so long as (i) the Prime
Sellers (and their distributees who agree
in writing to be bound by the terms of this
Agreement) collectively own at least ten
percent of the issued and then-outstanding
shares of GCI's Class A common stock,
and (ii) that certain Management Agreement
between Prime and GCI dated of even date
herewith ("Prime Management Agreement") is
in full force and effect. If either of these
conditions are not satisfied, then Prime
shall only be entitled to recommend one
Nominee. If neither of these conditions
are met, Prime shall not be entitled to
recommend any Nominee at that time;
(2) To the extent possible, to cause the full membership
of the Board to be maintained at not less than eight
members;
(3) Other matters to which the Parties unanimously agree.
(b) The Parties will abide by the classification by
the Board of a Nominee in accordance with the provisions for
classification of the Board as set forth in Article V(b) of GCI's
Articles of Incorporation and Section 2(b) of GCI's Article IV of
Bylaws which classification was, as of the date of this Agreement,
for Nominees allocated to MCI as follows: one in Class I and one
in Class III, and for Nominees allocated to Prime as follows: one
in Class II and one in Class III, and for Nominees allocated to
TCI GCI as follows: one in Class II and one in Class III.
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(c) The Parties understand that to insure the election
of their allocated Nominees, the Shares must constitute
sufficient voting power to cause those elections and that as
new shares are issued by GCI through the exercise of warrants
and options, acquisitions by employee benefit plans, or otherwise,
the number of outstanding shares of voting common stock will
increase, making the percentage which the Shares represent of the
outstanding shares decrease.
(d) The Parties will take such action as is necessary to
cause the election to the Board of each Party's Nominee(s).
Section 3. Manner of Voting. Votes, for purposes of this
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Section 3, will be as determined by written ballot upon each
matter to be voted upon. Should such a matter require shareholder
action, e.g., election of Nominees to the Board or should the
Board choose to present the matter for shareholder consent,
approval or ratification, such balloting must take place so that
the results are received by GCI at its principal executive
offices not less than 120 calendar days in advance of the date
of GCI's proxy statement released to security holders in
connection with the previous year's annual meeting of security
holders.
Section 4. Limitation on Voting. Except as set forth in (a)
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of Section 2 of this Agreement, the Agreement will not extend to
voting upon other questions and matters on which shareholders
will have the right to vote under GCI's Articles of
Incorporation, GCI's Bylaws of the Company, or the laws of the
State of Alaska.
Section 5. Term of Agreement. (a) The term of this
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Agreement will be through the completion of the annual meeting of
GCI's shareholders taking place in June, 2001 or until there is
only one Party to the Agreement, whichever occurs first; provided
that the Parties may extend the term of this Agreement only upon
unanimous vote and written amendment to this Agreement.
(b) Except as provided in (a) and (d) of this Section
5, a Party (other than Prime) will be subject to this Agreement
until the Party disposes of more than 25% of the votes
represented by the Party's holdings of common stock which equates
to the following (adjusted for stock splits) for each party:
1. MCI - 5,252,355 votes;
2. ▇▇▇▇▇▇ - 797,464 votes;
3. ▇▇▇▇ - 886,277 votes; and
4. TCI GCI - 1,475,108 votes.
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(c) Should one party dispose of an amount of its
portion of the Shares in excess of the limit as set forth in (b)
of this Section 5, each other Party will have the right to
withdraw and terminate that Party's rights and obligations under
this Agreement by giving written notice to the other Parties.
(d) Anything to the contrary in this Agreement
notwithstanding each Party shall remain a Party to this Agreement
with respect to its obligation to vote (a) for Prime's Nominee(s)
pursuant to Section 2(a)(1) above, and (b) to maintain at least
an eight (8) member Board pursuant to Section 2(a)(2) above only,
for so long as either (i) the Prime Sellers (and their
distributees who agree in writing to be bound by the terms of
this Agreement) collectively own at least ten percent (10%) of
the issued and then-outstanding shares of GCI's Class A common
stock or (ii) the Prime Management Agreement is in effect. Upon
each request, Prime shall, within a reasonable period of time
after delivery by GCI to Prime of GCI's shareholders list showing
the number of shares of GCI common stock owned by each such
shareholder, provide GCI with its certificate, in form and
substance reasonably satisfactory to GCI, confirming the Prime
Sellers' aggregate, then-current percentage ownership of GCI
Class A common stock.
Section 6. Binding Effect. The Parties will, during the
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term of this Agreement, be fully subject to its provisions.
There will be no prohibition against transfer or other assignment
of Shares under the terms of this Agreement. Should a Party
transfer or otherwise assign Shares, and the new holder of those
Shares will not have any rights under, nor be subject to the
terms of, this Agreement, except that any assignee which is an
affiliate or subsidiary entity of a Party shall be bound by, and
have the benefits of, this Agreement; provided, however, that
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anything to the contrary in the foregoing notwithstanding, any
distributee of a Prime Seller that agrees in writing to be bound
by the terms of this Agreement will have rights under and be
subject to the terms of this Agreement.
Section 7. GCI's Agreement. GCI agrees (i) to submit the
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Nominees selected pursuant to Section 2(a) above in its proxy
materials delivered to GCI's shareholders in connection with each
election of GCI directors; and (ii) not to take any action
inconsistent with the agreements of the Parties set forth herein.
Section 8. Notices. Notices required or otherwise given
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under this Agreement will be given by hand delivery or certified
mail to the following addresses, unless otherwise changed by a
Party with notice to the other Parties:
To Prime: Prime II Management, L.P.
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attn: President
With copies (which shall not constitute
notice) to:
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▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, P.C.
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
ATTN: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
To MCI: MCI Telecommunications Corporation
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇
ATTN: ▇▇▇▇▇▇▇ Maine, Chief Financial Officer
To ▇▇▇▇▇▇: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
President and Chief Executive Officer
General Communication, Inc.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇
To ▇▇▇▇: ▇▇▇▇▇▇ ▇. ▇▇▇▇
Vice Chairman
General Communication, Inc.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇
To TCI GCI : ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, President
TCI GCI, Inc.
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Section 9. Performance. The Parties agree that damages are
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not an adequate remedy for a breach of the terms of this
Agreement. Should a Party be in breach of a term of this
Agreement, one or more of the other Parties may seek the specific
performance or injunction of that Party under the terms of this
Agreement by bringing an appropriate action in a court in
Anchorage, Alaska.
Section 10. Governing Law. The terms of this Agreement
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will be governed by and construed in accordance with the laws of
the State of Alaska.
Section 11. Amendments. This Agreement constitutes the
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entire Agreement between the Parties, and any amendment of it
must be in writing and approved by all Parties.
Section 12. Group. Prior to a Party filing a Schedule 13D
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or an amendment to such a schedule pursuant to the Securities
Exchange Act of 1934, the Party will provide a written notice to
each of the other Parties within five days after the triggering
event under that schedule and at least two days prior to the
filing of that schedule or amendment, as the case may be, and
further provide to any other Party any information or
documentation reasonably requested by that Party in this regard.
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Section 13. Termination of Prior Agreement. This
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Agreement supersedes and replaces in its entirety that certain
Voting Agreement dated effective as of March 31, 1993, by and
between MCI, ▇▇▇▇▇▇, ▇▇▇▇ and TCI GCI, as successor in interest
to WestMarc Communications, Inc.
Section 14. Severability. If a court of competent
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jurisdiction finds any portion of this Agreement invalid or not
enforceable, this Agreement shall be automatically reformed to
carry out the intent of the Parties as nearly as possible without
regard to the portion so invalidated. If this entire Agreement
is determined to be limited in duration by a court of competent
jurisdiction, the Parties agree to enter into a new Agreement
which carries forward the intent of the Parties upon such
termination.
IN WITNESS WHEREOF, the Parties set their hands to this
Agreement, effective on the first date above written.
PRIME II MANAGEMENT, L.P.
By Prime II Management, Inc.
Its General Partner
By____________________________________
Name:_________________________________
Its:__________________________________
MCI TELECOMMUNICATIONS CORPORATION
By____________________________________
Name:_________________________________
Its:__________________________________
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_______________________________________
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
_______________________________________
▇▇▇▇▇▇ ▇. ▇▇▇▇
TCI GCI, INC.
By_____________________________________
Name:__________________________________
Its:___________________________________
GENERAL COMMUNICATION, INC.
By_____________________________________
Name:__________________________________
Its:___________________________________
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