EXHIBIT 10
FORM OF
STOCK DISPOSITION AGREEMENT
Stock Disposition Agreement, dated as of September ___, 1998 (this
"Agreement"), among General Instrument Corporation, a Delaware corporation (the
"Company"), Forstmann Little & Co. Subordinated Debt and Equity Management
Buyout Partnership-IV, a New York limited partnership ("MBO-IV"), and the
individual selling stockholders listed on Schedule A hereto (the "Individual
Selling Stockholders" and, together with MBO-IV, the "Selling Stockholders").
WHEREAS, the Company has filed a registration statement with the Securities
and Exchange Commission relating to an underwritten public offering (the
"Offering") of shares of the Company's common stock, par value $.01 per share
(the "Common Stock"); and
WHEREAS, each of MBO-IV and the Individual Selling Stockholders have granted
to the underwriters in the Offering (the "Underwriters") an over-allotment
option to purchase such number of shares of Common Stock as are set forth
opposite their respective names on Schedule A hereto (collectively, the "Offered
Shares"); and
WHEREAS, the Company desires to purchase from the Selling Stockholders, and
the Selling Stockholders desire to sell to the Company, all or a portion of the
Offered Shares.
NOW, THEREFORE, in consideration of the mutual covenants and undertakings
contained herein, and on the terms and subject to the conditions set forth
herein, the parties hereto, each representing to the others that its execution,
delivery and performance of this Agreement has been fully and duly authorized,
agree as follows:
SECTION 1 - DEFINITIONS
1.1 Specific Definitions. As used in this Agreement, the following terms
shall have the meanings set forth below:
"Business Day" - any day other than a Saturday, a Sunday or a day on
which banks in New York City are authorized or obligated by law or executive
order to close.
"Closing" - the closing of the purchase and sale of the Purchase Shares
(as defined in Section 2.1 hereof).
"Closing Date" - the date on which the Closing occurs.
"Governmental Entity" - any federal, state or local judicial,
legislative, executive or regulatory authority.
1.2 Other Terms. Other terms are defined elsewhere in this Agreement and,
unless otherwise indicated, shall have such meanings throughout this Agreement.
SECTION 2 - PURCHASE AND SALE
2.1 Purchase and Sale of Purchase Shares. On the terms and subject to the
conditions set forth herein, at the Closing, each Selling Stockholder agrees to
sell and transfer to the Company, and the Company agrees to purchase from such
Selling Stockholder, such Selling Stockholder's Offered Shares, less any shares
of Common Stock sold pursuant to the over-allotment option granted to the
Underwriters in the Offering (the number of Offered Shares to be purchased by
the Company being referred to as the "Purchase Shares"), at a purchase price per
share equal to the per share proceeds (net of underwriting discounts and
commissions) to the Selling Stockholders for the shares sold in the Offering
(the "Purchase Price"). The Purchase Shares shall not be purchased or sold
pursuant to this Agreement unless the Offering is consummated.
2.2 Closing; Delivery and Payment.
(a) The Closing shall take place at the offices of Fried, Frank,
Harris, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
or at such other place as the Selling Stockholders (through their
Attorney-in-Fact) and the Company shall agree as soon as
practicable, and in any event within five Business Days, after the
earlier of (i) the expiration of the 30-day period during which
the Underwriters have the right to exercise their over-allotment
option, without such options having been exercised, and (ii) the
receipt by the Company of written notice from ▇▇▇▇▇▇▇, Sachs & Co.
(on behalf of the Underwriters) that the Underwriters have either
elected not to exercise their over-allotment option or have
purchased only a portion (but not all) of the shares subject to
their over-allotment option. It is understood and agreed that if
their Underwriters exercise their over-allotment option in full,
the Company will have no obligation to purchase, and the Selling
Stockholders will have no obligation to sell, any Offered Shares
pursuant to this Agreement.
(b) On the Closing Date, each Selling Stockholder shall deliver to the
Company certificates representing such Selling Stockholder's
Purchase Shares duly endorsed and in form for transfer to the
Company, and the Company shall pay to each Selling Stockholder the
Purchase Price for each Purchase Share sold by such Selling
Stockholder in immediately available funds to the
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accounts designated by the Selling Stockholders in respect of
proceeds from the Offering.
SECTION 3 - REPRESENTATIONS AND WARRANTIES
3.1 By the Parties. Each Selling Stockholder represents and warrants as to
itself to the Company, and the Company represents and warrants as to itself to
the Selling Stockholders, as follows:
(a) It has all necessary authority for the execution, delivery and
performance of this Agreement by it; it has duly executed and
delivered this Agreement; and this Agreement is a valid and
legally binding agreement, enforceable against it in accordance
with its terms, assuming the due execution and delivery by the
other parties; and
(b) The performance of this Agreement by it will not violate or
conflict with any law, regulation, order or agreement, or, to the
extent applicable, such party's charter or organic documents, and
such party is not required to obtain any governmental approvals or
third party consents to enter into and perform its obligations
pursuant to this Agreement. Such execution and performance does
not and will not constitute a default under any agreement or
obligation binding on it or result in the forfeiture or loss of
any rights or assets by it except as specifically provided for in
this Agreement.
3.2 By the Selling Stockholders. Each Selling Stockholder represents and
warrants to the Company that it owns the Purchase Shares to be sold hereunder by
such Selling Stockholder to the Company, beneficially and of record, free and
clear of any liens, charges or encumbrances and that upon delivery of its
Purchase Shares, and payment therefore pursuant hereto, good and valid title to
its Purchase Shares will pass to the Company (assuming that the Company is
without notice of any adverse claim, as defined in the Uniform Commercial Code
as adopted in the State of New York (the "Code") and is otherwise a bona fide
purchaser for the purposes of the Code).
SECTION 4 - CONDITIONS TO THE
PARTIES' OBLIGATIONS TO CLOSE
4.1 Conditions to the Selling Stockholders Obligations to Close. The
obligations of each of the several Selling Stockholders to consummate the
transactions contemplated by this Agreement are subject to the satisfaction (or
waiver) of the following conditions:
(a) No Injunctions. There shall not be in effect any statute,
regulation, order, decree or judgment of any Governmental Entity
that makes illegal or
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enjoins or prevents in any material respect the consummation of
the transactions contemplated by this Agreement.
(b) Representations. All representations made by the Company in
Article III hereof shall be true and correct in all material
respects at and as of the Closing Date.
(c) Consummation of the Offering. The Offering shall have been
consummated.
4.2 Conditions to the Company's Obligations to Close. The obligations of the
Company to consummate the transactions contemplated by this Agreement are
subject to the satisfaction (or waiver) of the following conditions:
(a) No Injunctions. There shall not be in effect any statute,
regulation, order, decree or judgment of any Governmental Entity
that makes illegal or enjoins or prevents in any material respect
the consummation of the transactions contemplated by this
Agreement.
(b) Representations. All representations made by the Selling
Stockholders in Article III hereof shall be true and correct in
all material respects at and as of the Closing Date.
(c) Consummation of the Offering. The Offering shall have been
consummated.
SECTION 5 - TERMINATION
5.1 Termination. This Agreement shall terminate automatically if either (i)
the Offering is terminated prior to consummation thereof or (ii) the
Underwriters exercise their over-allotment option in full and purchase all of
the Offered Shares subject thereto. This Agreement may be terminated at any time
prior to the Closing:
(a) by written agreement of MBO-IV and the Company;
(b) either by MBO-IV or by the Company, by written notice of such
termination to the other, if the Offering shall not have been
consummated on or prior to December 31, 1998;
(c) either by MBO-IV or by the Company if any court of competent
jurisdiction or other competent Governmental Entity shall have by
statute, rule, regulation, order, decree or injunction or other
action permanently restrained, enjoined or otherwise prohibited
any of the transactions contemplated by this Agreement.
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SECTION 6 - MISCELLANEOUS
6.1 Notices. All notices or other communications hereunder shall be deemed
to have been duly given and made if in writing and if served by personal
delivery upon the party for whom it is intended, if delivered registered or
certified mail, return receipt requested, or by a national courier service, if
sent by facsimile transmission, provided that the facsimile transmission is
promptly confirmed by telephone confirmation thereof, or on the third day after
posting in the United States postage prepaid if sent by registered or certified
mail, return receipt requested, to the person at the address set forth below, or
such other address as may be designated in writing hereafter, in the same
manner, by such person:
To the Company:
General Instrument Corporation
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇,
Senior Vice President, Legal and Secretary
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
To the Selling Stockholders:
c/o Forstmann Little & Co.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
6.2 Amendment; Waiver. Any provision of this Agreement may be amended or
waived if, and only if, such amendment or waiver is in writing and signed, in
the case of any amendment, by MBO-IV, the Individual Selling Stockholders
(through their Attorney-in-Fact) and the Company, or in the case of a waiver, by
the party against whom the waiver is to be effective. No failure or delay by any
party in exercising any right, power or privilege hereunder shall operate as a
waiver thereof nor shall any single or partial exercise thereof preclude any
other or further exercise thereof or the exercise of any other right, power or
privilege. The rights and remedies herein provided shall be cumulative and,
except as otherwise provided herein, shall not be exclusive of any rights or
remedies provided by law.
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6.3 Assignment. No party to this Agreement may assign any of its rights or
obligations under this Agreement without the consent of each other party hereto,
except that a Selling Stockholder may make such assignments with notice to the
Company but without the need for the Company's consent to one or more other
Selling Stockholders.
6.4 Entire Agreement. This Agreement contains the entire agreement among the
parties thereto with respect to the subject matter hereof and supersedes all
prior agreements and understandings, oral or written, among them with respect to
such matters, and any written agreement of the parties that expressly provides
that it is not superseded by this Agreement.
6.5 Parties in Interest. This Agreement shall inure to the benefit of and be
binding upon the parties hereto and their respective successors and permitted
assigns. Nothing in this Agreement, express or implied, is intended to confer
upon any person other than each of the Selling Stockholders or the Company, and
their successors or permitted assigns, any rights or remedies under or by reason
of this Agreement.
6.6 Governing Law: Submission to Jurisdiction; Selection of Forum. THIS
AGREEMENT SHALL BE GOVERNED BY THE LAWS OF THE STATE OF NEW YORK. Each party
hereto agrees that it shall bring any action or proceeding in respect of any
claim arising out of or related to this Agreement or the transactions contained
in or contemplated by this Agreement, whether in tort or contract or at law or
in equity, exclusively in the United States District Court for the Southern
District of New York or the Supreme Court of the State of New York for the
County of New York, and solely in connection with claims arising under this
Agreement or the transactions contained in or contemplated by this Agreement (i)
irrevocably submits to the exclusive jurisdiction of such courts, (iii) waives
any objection that such courts are an inconvenient forum or do not have
jurisdiction over any party hereto and (iv) agrees that service of process upon
such party in any such action or proceeding shall be effective if notice is
given in accordance with Section 6.1 of this Agreement.
6.7 Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, and all of which shall
constitute one and the same Agreement.
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IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the
date first written above.
GENERAL INSTRUMENT CORPORATION
By:
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Name:
Title:
SELLING STOCKHOLDERS
The Individual Selling Stockholders Listed on
Schedule A hereto
By:
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