VOTING AGREEMENT
AGREEMENT, dated as of January 8, 1998, by and among AT&T
Corp., a New York corporation ("Parent"), on the one hand, and Comcast
Corporation, Comcast Teleport, Inc., Comcast Communications Properties, Inc.
(Comcast Corporation, Comcast Teleport, Inc., Comcast Communications Properties,
Inc., collectively, "Comcast"), Tele-Communications, Inc., TCI Teleport, Inc.
(together with Tele-Communications, Inc., "TCI"), ▇▇▇ Communications, Inc. and
Cox Teleport Partners, Inc. (together with ▇▇▇ Communications, Inc., "Cox"), on
the other hand. Comcast, TCI and Cox shall be referred to herein each as a
"Stockholder" (each reference to a "Stockholder" referring to the two or three
companies collectively constituting Comcast, TCI or Cox, as the case may be),
and Comcast, TCI or Cox together are collectively referred to as the
"Stockholders". Each Stockholder is executing this Agreement only in its
capacity as a stockholder of Teleport Communications Group Inc., a Delaware
corporation (the "Company"). The Company is executing this Agreement solely with
respect to Section 6(e) and Annex B.
WHEREAS, concurrently herewith, Parent, TA Merger Corp., a
Delaware corporation and a wholly owned subsidiary of Parent ("Merger Sub"), and
the Company are entering into an Agreement and Plan of Merger (the "Merger
Agreement"; capitalized terms used without definition herein having the meanings
ascribed thereto in the Merger Agreement);
WHEREAS, each Stockholder is the record and beneficial owner
of the number of Shares set forth opposite such Stockholder's name in Schedule I
hereto;
WHEREAS, approval of the Merger Agreement by the Company's
stockholders is a condition to the consummation of the Merger;
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 approvals and adoption
have not been withdrawn; and
WHEREAS, Parent is unwilling to enter into the Merger
Agreement unless the Stockholders enter into this Agreement concurrently with
the execution of the Merger Agreement and execute and deliver the Stockholders
Consent immediately thereafter, and the Stockholders desire and are willing to
induce Parent to enter into the Merger Agreement by their entry into
this Agreement and their agreement to execute and deliver the Stockholders
Consent;
NOW THEREFORE, in consideration of the foregoing and the
mutual covenants and agreements set forth herein, the parties hereto agree as
follows:
Section 1. Consent; Agreement to Vote. (a) Each Stockholder
agrees (for itself and not as to any other Stockholder) that, immediately
following the execution and delivery of this Agreement and the Merger Agreement,
it shall execute and deliver, or cause to be executed and delivered by the
record owner thereof, in accordance with Section 228 of the DGCL, the
Stockholders Consent in the form attached hereto as Annex A with respect to all
Shares that are owned beneficially or of record by such Stockholder or as to
which such Stockholder has, directly or indirectly, the right to vote or direct
the voting.
(b) Unless one of the events specified in clause (i), (ii) or
(iii) of Section 7.3(b) of the Merger Agreement has occurred or Parent has
breached Section 6(d) below in any material respect, each Stockholder hereby
further agrees (for itself and not as to any other Stockholder) that, during the
term of this Agreement, it shall, from time to time, at the request of Parent,
(i) timely execute and deliver (or cause to be timely executed and delivered) an
additional written consent with respect to, or (ii) vote, or cause to be voted,
at any meeting of stockholders of the Company held prior to the earlier of the
Effective Time (as defined in the Merger Agreement) and the termination of this
Agreement or at any adjournment or postponement thereof, in person or by proxy,
all Shares, and any other voting securities of the Company (whether acquired
heretofore or hereafter), that are beneficially owned by such Stockholder or its
Affiliates or as to which such Stockholder or any of its Affiliates has,
directly or indirectly, the right to vote or direct the voting, (x) in favor of
approval and adoption of the Merger Agreement, the Merger, and any action
required in furtherance thereof, (y) against any action or agreement that would
result in a material breach of any representation, warranty, covenant or
obligation of the Company contained in the Merger Agreement, and (z) against any
Competing Transaction (as defined below). Each Stockholder agrees, during the
period commencing on the date hereof and ending on the earlier of the Effective
Time and the termination of this Agreement, not to, and not to permit any of its
Affiliates to, execute any written consent in lieu of a stockholders meeting or
vote of the Company, if such consent or vote by the stockholders of the Company
would be inconsistent with or frustrate the purposes of the other agreements of
such Stockholder pursuant to this paragraph (it
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being understood that the Stockholders may vote for or consent to transactions
expressly permitted by the Merger Agreement). A "Competing Transaction" means
any Acquisition Proposal, other than the transactions contemplated or expressly
permitted by the Merger Agreement, or any amendment to the certificate of
incorporation of the Company or any other proposal that frustrates or hinders
the Merger or the other transactions contemplated by the Merger Agreement.
(c) Each Stockholder agrees that it will not, and will not
permit any of its Affiliates to, contract to sell, sell or otherwise pledge,
encumber, transfer or dispose of any of the Shares owned beneficially or of
record by it or any interest therein or securities convertible thereinto or any
voting rights with respect thereto, other than (i) pursuant to the Merger, (ii)
pursuant to Section 3(b) hereof or (iii) with Parent's prior written consent.
(d) Each Stockholder hereby revokes any and all previous
proxies with respect to such Person's Shares or any other voting securities of
the Company.
(e) Each Stockholder hereby agrees to, and to cause its
Affiliates to, cooperate reasonably with Parent and the Company in connection
with the Merger Agreement and consummation of the transactions contemplated
thereby. Parent agrees to cooperate reasonably with each Stockholder in
connection with any filings required to be made by such Stockholder pursuant to
the HSR Act in connection with the Merger Agreement and consummation of the
transactions contemplated thereby. Each Stockholder agrees that it and its
Affiliates will not, and will use reasonable best efforts to cause their
respective officers, employees, representatives and agents not to, directly or
indirectly, encourage, solicit or engage in discussions or negotiations with any
third party (other than Parent) concerning any Acquisition Proposal, other than
the transactions contemplated hereby and by the Merger Agreement. Each such
Stockholder shall immediately request that any Person (other than such
Stockholder's agents, advisors and representatives) that has received directly
or indirectly from such Stockholder any confidential information relating to the
Company or any of its Subsidiaries in connection with an Acquisition Proposal
within the past 180 days return all copies thereof to the Company. Each
Stockholder and its Affiliates shall, and shall use reasonable best efforts to
cause their respective officers, employees, representatives and agents to,
terminate all discussions or negotiations with any Person with respect to any
Acquisition Proposal. Each such Stockholder will notify Parent immediately of
any Acquisition Proposal (or inquires with respect thereto) that are received
by, or any negotiations or discussions with respect
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thereto of which it is aware that are sought to be initiated with, such
Stockholder or any of its Affiliates or the Company or any of its Subsidiaries,
will advise Parent of the identity of any Person making any such Acquisition
Proposal and of the terms thereof and shall keep Parent apprised with respect to
all matters relating thereto.
Section 2. Securities Act Covenants and Representations. In
addition to, and not in lieu of, the other covenants and representations set
forth herein, each Stockholder hereby agrees and represents to Parent as
follows:
(a) Such Stockholder understands 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 or for
action by written consent of stockholders of the Company, any public offering,
sale or other disposition by such Stockholder or any of its Affiliates of any
Parent Common Shares received by such Person in the Merger (collectively, the
"Restricted Sales") will, under current law, require any of (i) the further
registration under the Securities Act of any Parent Common Shares to be sold by
such Person, (ii) compliance with applicable provisions of Rule 145 promulgated
by the SEC under the Securities Act or (iii) the availability of another
exemption from such registration under the Securities Act. Each Stockholder
agrees not to, or permit any of its Affiliates to, make any Restricted Sale
unless the conditions of clause (i), (ii) or (iii) are met.
(b) Such Stockholder also understands that stop transfer
instructions will be given to Parent's transfer agents with respect to the
Parent Common Shares, and that a legend will be placed on the certificates for
the Parent Common Shares, issued to such Stockholder, or any substitutions
therefor to reflect the restrictions referred to in Sections 2(a) and 3 hereof
on such Stockholder's ability to sell Parent Common Shares.
Section 3. Pooling Covenants and Representations. In addition
to, and not in lieu of, the other covenants and representations set forth
herein, each Stockholder hereby agrees and represents to Parent that:
(a) from and after the date hereof, such Stockholder will not,
and will not permit any of its Affiliates to, sell, transfer, hedge, or
otherwise dispose of or reduce its rights with respect to any Shares
(whether owned as of the date hereof or hereafter acquired) or any
Parent Common Shares received by such Stockholder in the Merger or
other shares of capital stock of Parent until after such time as
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results covering at least 30 days of combined operations of the Company
and Parent have been published by Parent, in the form of a quarterly
earnings report, an effective registration statement filed with the
SEC, a report to the SEC on Form 10-K, 10-Q or 8-K, or any other public
filing or announcement which includes the combined results of
operations, except for transfers or other dispositions that, in the
reasonable opinion of Parent's independent accountants, will not
prevent Parent from accounting for the Merger as a pooling of
interests, taking into account the actions of other Affiliates of the
Company or the Stockholders; and
(b) upon Parent's request, in connection with the transactions
contemplated by the ACC Agreement (as defined in the Merger Agreement)
and in order to permit such transaction to be accounted for on a
pooling of interests basis, such Stockholder shall, or shall cause its
Affiliates to, convert into Class A Common Stock such number of shares
of Class B Common Stock as will constitute its pro rata portion
(rounded up to the nearest whole share) of that number of shares of
Class B Common Stock that would be necessary, when taken together with
such conversions of all of the other Stockholders, to permit the
Company's pending business combination with Ace to be accounted for as
a pooling of interests.
Section 4. Tax Covenants and Representations. In addition to,
and not in lieu of, the other covenants and representations set forth herein,
each Stockholder hereby represents and warrants to Parent that, as of the date
hereof and as of the Closing Date, such Stockholder has and shall have no
present plan or intention to sell, exchange or otherwise dispose of Parent
Common Shares to be received by such Stockholder in the Merger having a value,
as of the Effective Time, greater than (a) 50 percent of the value as of the
Effective Time of all of such Stockholder's Shares as of the Effective Time
minus (b) such Stockholder's pro rata portion of the value of any Excess Parent
Common Shares identified in the certificate required pursuant to Section 7.10 of
the Merger Agreement (which amount shall not be less than zero). For purposes of
the foregoing, "Excess Parent Common Shares" shall mean 50% of the number of
Parent Common Shares owned by Persons other than the Stockholders, and "pro rata
portion" as to any Stockholder shall mean the number of Parent Common Shares
owned by such Stockholder divided by the total number of Parent Common Shares
owned by all Stockholders. For purposes of this representation, Shares exchanged
for cash in lieu of fractional Parent Common Shares will be treated as
outstanding Shares on the Effective Time. Moreover, Shares and Parent Common
Shares held by stockholders of the Company and otherwise sold, redeemed or
disposed of prior or subsequent to
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the Merger will be considered in making this representation. Each Stockholder
agrees to deliver to Parent's counsel, if so requested by Parent's counsel, and
to the Company's counsel, if so requested by the Company's counsel, a
certificate setting forth the above representations in this Section 4 by such
Stockholder, which certificate (and the representations therein) may be relied
upon by Parent's counsel and by the Company's counsel in connection with the
opinions contemplated by Sections 8.2(d) and 8.3(d) of the Merger Agreement.
Section 5. Registration Rights. The Registration Rights
Agreement shall be executed by the parties set forth therein as signatories
thereto immediately following execution of this Agreement, and shall become
effective as of the Effective Time.
Section 6. Other Covenants and Agreements.
(a) Consent to this Agreement. Each Stockholder hereby
consents, for purposes of the Stockholders' Agreement, to the execution of this
Agreement and the Stockholders Consent by each other Stockholder and the
consummation of the transactions contemplated hereby (and waives any rights such
Stockholder would otherwise have pursuant to the Stockholders' Agreement by
virtue of the execution of this Agreement and the Stockholders Consent).
(b) Further Assurances. Unless one of the events specified in
clause (i), (ii) or (iii) of Section 7.3(b) of the Merger Agreement has occurred
or Parent has breached Section 6(d) below in any material respect, each party
shall execute and deliver such additional instruments and other documents and
shall take such further actions as may be necessary or appropriate to
effectuate, carry out and comply with all of its 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) if such action would materially
impair the ability of such party to effectuate, carry out or comply with all of
the terms of this Agreement.
(c) Release of Certain Restrictions. Effective as of the
Effective Time, each Stockholder hereby releases the Company and its Affiliates
(other than the Stockholders and their other Affiliates) from, and waives in all
respects, any obligation that may exist to such Stockholder or any other
agreement with such Stockholder (i) not to compete with such Stockholder or any
of its Affiliates anywhere in the world, (ii) not to engage, or to refrain from
engaging, in any activity anywhere in the world, or (iii) that otherwise
restricts or limits the ability of the Company or any of its Affiliates to
engage in any business
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anywhere in the world; provided however that the foregoing shall not apply to
(x) any provision of the Restated Facilities Agreements (as defined in Annex B)
or (y) the Agreement entered into as of the 18th day of April 1996 among
Teleport and Comcast Corporation, provided that as of the Effective Time
paragraph 2(e) of such agreement is hereby amended to be inapplicable to the
extent and for so long as compliance therewith by the Company would violate
existing legal obligations of Parent and its Affiliates.
(d) Other Matters. Parent will not agree to the inclusion, in
any Authorization required in connection with the Merger, of the imposition by
any Governmental Body of any restriction on any Stockholder's exercise and
enjoyment of full rights of ownership of Parent Common Shares to be acquired by
such Stockholder in the Merger, any material modification of any license,
franchise or permit held by such Stockholder or any of its Affiliates, the
imposition of any requirement relating to the divestiture or rearrangement of
the composition of any material assets of such Stockholder or any of its
Affiliates, material limitation on such Stockholder's or any of its Affiliate's
freedom of action with respect to future acquisitions of assets or with respect
to any existing or future business activities or relationship or the enjoyment
by such Stockholder or any of its Affiliates of the full rights of ownership,
possession and use of any material asset now owned or hereafter acquired by such
Stockholder or any of its Affiliates (including the Parent Common Shares to be
acquired by such Shareholder in the Merger), or any other material restrictions,
limitations, requirements, or conditions which are reasonably likely to be
burdensome on such Stockholder or its Affiliates (any of the foregoing, a
"Prohibited Effect"), in the case of any of the foregoing that is unacceptable
to such Stockholder in its reasonable judgment. Notwithstanding anything in this
Agreement to the contrary, no Stockholder shall be required to consent to any
Prohibited Effect that is unacceptable to such Stockholder in its reasonable
judgment.
(e) Facilities Arrangements. Each of the Stockholders agrees
that the Existing Arrangements (as defined in Annex B hereto) between such
Stockholder and/or any of its Affiliates, on the one hand, and the Company
and/or any of its Affiliates, on the other hand, shall be amended as specified
in Annex B hereto, effective immediately (which Annex B is incorporated herein
by reference).
Section 7. Representations and Warranties of Parent. Parent
represents and warrants to each Stockholder as follows:
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(a) This Agreement and the Registration Rights Agreement have
been approved by the Board of Directors of Parent, representing all necessary
corporate action on the part of Parent for the execution and performance hereof
and thereof by Parent (no action by the stockholders of Parent being required).
(b) This Agreement has been, and the Registration Rights
Agreement will be, duly executed and delivered by a duly authorized officer of
Parent.
(c) This Agreement constitutes, and the Registration Rights
Agreement when duly executed and delivered will constitute, a valid and binding
agreement of Parent, enforceable against Parent in accordance with its terms.
(d) The execution and delivery of this Agreement by Parent
does not, and the execution and delivery of the Registration Rights Agreement by
Parent will not, violate or breach, and will not give rise to any violation or
breach, of Parent's charter or bylaws, or, except as will not materially impair
its ability to effectuate, carry out or comply with all of the terms of this
Agreement and the Registration Rights Agreement, any law, contract, instrument,
arrangement or agreement by which Parent is bound.
Section 8. Representations and Warranties of the Stockholders.
Each Stockholder, as to such Stockholder only, represents and warrants to Parent
as follows:
(a) Schedule I sets forth, opposite such Stockholder's name,
the number and type of Shares of which such Stockholder is the record or
beneficial owner. Such Stockholder is the lawful owner of such Shares, free and
clear of all liens, charges, encumbrances, voting agreements and commitments of
every kind, other than this Agreement, the Stockholders' Agreement and as
disclosed on Schedule I. Except as set forth in Schedule I and except for the
Stockholders' Agreement, neither such Stockholder nor any of its Affiliates owns
or holds any rights to acquire any additional Shares or other securities of the
Company or any interest therein or any voting rights with respect to any
additional Shares or any other securities of the Company.
(b) This Agreement has been approved by the Board of Directors
and, to the extent necessary, the stockholders of such Stockholder, representing
all necessary corporate action on the part of such Stockholder for the execution
and performance hereof by such Stockholder.
(c) This Agreement has been duly executed and delivered by a
duly authorized officer of such Stockholder.
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(d) This Agreement constitutes the valid and binding agreement
of such Stockholder, enforceable against such Person in accordance with its
terms.
(e) The execution and delivery of this Agreement by such
Stockholder does not violate or breach, and will not give rise to any violation
or breach, of such Stockholder's charter or bylaws, or, except as will not
materially impair the ability of such Stockholder to effectuate, carry out or
comply with all of the terms of this Agreement, any law, contract, instrument,
arrangement or agreement by which such Stockholder is bound.
(f) The execution and delivery of this Agreement by such
Stockholder does not create or give rise to any right in such Stockholder or any
of their respective Affiliates with respect to the Shares or any other security
of the Company (including, without limitation voting rights and rights to
purchase or sell any such Shares or other securities) pursuant to the
Stockholders' Agreement, other than any such right as is duly and validly waived
pursuant to Section 6(a) of this Agreement.
(g) The execution and delivery of the Stockholders Consent by
the Stockholders are adequate to approve and adopt the Merger Agreement and the
Merger without the vote or consent of any other stockholder of the Company.
(h) The Reorganization (as defined in the Company's prospectus
dated November 6, 1997) of the Company under the Reorganization Agreement dated
as of April 18, 1996 among the Company, the Stockholders and Continental
Cablevision, Inc. (the "Reorganization Agreement") has been completed in
accordance with the terms thereof. Each Stockholder, on behalf of itself and its
Affiliates, hereby waives all defaults and executory rights under the
Reorganization Agreement or any partnership agreement of any Local Market
Partnership (as defined in the Reorganization Agreement) to any of Continental
Cablevision, Inc. or any of the Stockholders or any of their respective
Affiliates.
Section 9. Effectiveness and Termination. In the event the
Merger Agreement is terminated in accordance with its terms (other than pursuant
to the last sentence of Section 9.2 thereof), this Agreement shall automatically
terminate and be of no further force or effect. Upon such termination, except
for any rights any party may have in respect of any breach by any other party of
its obligations hereunder, none of the parties hereto shall have any further
obligation or liability hereunder. The provisions of Section 6(e) hereof shall
survive the Merger.
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Section 10. Miscellaneous.
(a) Notices, Etc. All notices, requests, demands or other
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 seven days after being mailed by
first-class mail, postage prepaid in each case to the applicable addresses set
forth below:
If to Parent:
AT&T Corp.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇.
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Vice President-Law
and Corporate Secretary
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
Wachtell, Lipton, ▇▇▇▇▇ & ▇▇▇▇
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq. and
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Esq.
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
If to the Company:
Teleport Communications Group Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Chairman, President and CEO
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
Dow, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, PLLC
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇, Esq.
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
and with a copy to:
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
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▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Esq.
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
If to Comcast:
Comcast Corporation
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: General Counsel
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇, Esq.
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
If to TCI:
Tele-Communications, Inc.
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
▇▇▇▇▇ & ▇▇▇▇▇, L.L.P.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Esq.
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
If to Cox:
▇▇▇ Enterprises, Inc.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
-▇▇-
▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
or to such other address as such party shall have designated by notice received
by each other party.
(b) Amendments, Waivers, Etc. This Agreement may not be
amended, changed, supplemented, waived or otherwise modified or, except as
expressly set forth in Section 9, terminated, except by an instrument in writing
signed by each party hereto.
(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; provided that, except as contemplated
by the Merger Agreement, neither the rights nor the obligations of any party may
be assigned or delegated without the prior written consent of the other parties
except that Parent may assign its rights under Section 6(e) to any Subsidiary
(as defined in the Merger Agreement).
(d) Entire Agreement. This Agreement (together with the Merger
Agreement and the other agreements and documents expressly contemplated hereby
and thereby) 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 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 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 are not an adequate remedy for violations of this Agreement and that any
party may, in its sole discretion,
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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 or any requirement for a bond.
(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 its right to exercise any such or other right, power or remedy or to
demand such compliance.
(i) No Third Party Beneficiaries. 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.
(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 of Delaware or any court of the State of Delaware
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 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 State of Delaware 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 be governed by and construed and enforced in accordance with the internal
laws of the State of Delaware, without regard to principles of conflicts of law.
(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 interpre-
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tation 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. Each of Parent and each Stockholder shall bear
its own expenses incurred in connection with this Agreement and the transactions
contemplated hereby, except that in the event of a dispute concerning the terms
or enforcement of this Agreement, the prevailing party in any such dispute shall
be entitled to reimbursement of reasonable legal fees and disbursements from the
other party or parties to such dispute.
(o) Action in Stockholder Capacity Only. No Stockholder makes
any agreement or understanding herein as a director or officer of the Company.
Each Stockholder signs solely in its capacity as a record holder and beneficial
owner of Shares and nothing herein shall limit or affect any actions taken by a
representative of such Stockholder in such representative's capacity as an
officer or director of the Company (it being understood and agreed that the
provisions of this paragraph shall not affect the rights and obligations of any
party to the Merger Agreement or any other agreement).
(p) Obligations Several. The obligations of each Stockholder
under this Agreement (including Annex B hereto) shall be several and not joint.
No Stockholder shall have any liability, duty or obligation arising out of or
resulting from any failure by any other Stockholder (or any Affiliate thereof)
to comply with the terms and conditions of this Agreement.
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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/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: President
COMCAST CORPORATION
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Executive Vice President
▇▇▇ COMMUNICATIONS, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Senior Vice President of Finance;
Chief Financial Officer
TELE-COMMUNICATIONS, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Senior Vice President Finance
and Treasurer
COMCAST TELEPORT, INC.
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title:
TCI TELEPORT, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title:
COX TELEPORT PARTNERS, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title:
COMCAST COMMUNICATIONS PROPERTIES, INC.
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title:
Teleport Communications Group Inc. hereby acknowledges its agreement with the
provisions of Annex B hereto.
TELEPORT COMMUNICATIONS GROUP INC.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Title: Chairman, President
and CEO
Schedule I
Share Ownership
Name of Stockholder Shares Owned Beneficially
Class A Common Stock Class B Common Stock
Shares Options Shares Options
Comcast Corporation None None 25,622,058 None
Tele-Communications, Inc. 1,011,528 None 48,779,388 None
▇▇▇ Communications, Inc. None None 39,087,594 None
Total
Name of Stockholder of Record Shares Owned of Record
Class A Common Stock Class B Common Stock
Shares Options Shares Options
TCI Teleport, Inc. 1,011,528 None 48,779,388 None
Comcast Teleport, Inc. None None 25,438,036 None
Comcast Communications None None 184,022 None
Properties, Inc.
Cox Teleport Partners, None None 39,087,594 None
Inc.
Total
Annex A
WRITTEN CONSENT
OF STOCKHOLDERS OF
TELEPORT COMMUNICATIONS GROUP INC.
Pursuant to the provisions of Section 228 and Section 251 of the
General Corporation Law of the State of Delaware, the undersigned each holding
that number of shares of Class A Common Stock, par value $.01, of Teleport
Communications Group Inc. (the "Company") and that number of shares of Class B
Common Stock, par value $.01, of the Company (together, "Shares") set forth
adjacent to its name below, collectively constituting a majority of the voting
power of the issued and outstanding Shares, do hereby consent to, approve and
adopt the following resolution:
WHEREAS, the Board of Directors of the Company has approved
the Merger Agreement (as defined below) and has directed that the
Merger Agreement be submitted to the stockholders of the Company for
their approval;
NOW THEREFORE, BE IT RESOLVED, that the Agreement and Plan of
Merger, dated as of January 8, 1998, among AT&T Corp., a New York
corporation, TA Merger Corp., a Delaware corporation and a direct
wholly owned subsidiary of AT&T Corp., and the Company, in the form
attached to this consent (the "Merger Agreement"), be, and it hereby
is, consented to, approved and adopted in all respects.
This Consent may be executed in one or more counterparts, all of which shall be
considered one and the same instrument.
TCI TELEPORT, INC. 1,011,528 shares Class A Common Stock
48,779,388 shares Class B Common Stock
By:_____________
Name:
Title:
Date:___________
COX TELEPORT
PARTNERS, INC. No shares Class A Common Stock
39,087,594 shares Class B Common Stock
By:_____________
Name:
Title:
Date:___________
COMCAST TELEPORT, INC. No shares Class A Common Stock
25,438,036 shares Class B Common Stock
By:_____________
Name:
Title:
Date:___________
COMCAST COMMUNICATIONS
PROPERTIES, INC. No shares Class A Common Stock
184,022 shares Class B Common Stock
By:_____________
Name:
Title:
Date:___________