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EXHIBITS - Stockholders' Agreement by and among SBC Communications Inc.,
BellSouth Corporation and Alloy Mangement Corp.
EXHIBIT 10.55
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STOCKHOLDERS' AGREEMENT
by and among
SBC COMMUNICATIONS INC.,
BELLSOUTH CORPORATION
and
ALLOY MANAGEMENT CORP.
Dated as of October 2, 2000
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EXHIBITS - Stockholders' Agreement by and among SBC Communications Inc.,
BellSouth Corporation and Alloy Mangement Corp.
EXHIBIT 10.55
THIS STOCKHOLDERS' AGREEMENT (this "Agreement") is dated as of October 2,
2000, by and among SBC Communications Inc. ("SBC"), BellSouth Corporation
("BellSouth") and Alloy Management Corp., a Delaware corporation (the
"Company"). SBC and BellSouth are sometimes referred to herein collectively as
the "Stockholders" and individually as a "Stockholder" of the Company.
WHEREAS, as of the date hereof, the Company has authorized capital,
including 6,000,000,002 shares of common stock, consisting of 6,000,000,000
shares of Class A Common Stock, $.01 par value per share (the "Class A Common
Stock") and two shares of Class B Common Stock, $.01 par value per share (the
"Class B Common Stock", and together with the Class A Common Stock, the
"Shares").
WHEREAS, as of the date hereof, SBC owns approximately sixty percent of
the Total Outstanding Shares and BellSouth owns approximately forty percent of
the Total Outstanding Shares;
WHEREAS, as of the date hereof, SBC, BellSouth and the Company are the
sole Members of Alloy LLC, a Delaware limited liability company ("Newco"), with
each owning an interest in Newco through the ownership of membership units in
Newco ("LLC Units") pursuant to the Limited Liability Company Agreement among
SBC, BellSouth and the Company, dated as of October 2, 2000 (the "LLC
Agreement"); and
WHEREAS, the Stockholders desire to promote their mutual interests by
imposing certain restrictions and obligations on each other and on the Shares
and, further, to provide for matters pertaining to the management and governance
of the Company.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto agree as
follows:
ARTICLE 1
Definitions
Section 1.1. Certain Definitions. (a) Capitalized terms that are used but
not otherwise defined herein shall have the meanings given to them in the LLC
Agreement.
(b) For the purposes of this Agreement, the following terms shall have
the following meanings:
"Ancillary Agreement" shall mean, collectively, the Agency Agreements, the
Intellectual Property License Agreement, the Registration Rights Agreement, the
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EXHIBITS - Stockholders' Agreement by and among SBC Communications Inc.,
BellSouth Corporation and Alloy Mangement Corp.
EXHIBIT 10.55
Resale Agreements, the Management Agreement, the Transition Marks Agreement, the
Transition Services Agreement and the LLC Agreement.
"BellSouth" shall mean BellSouth Corporation, a Georgia corporation, or
any Permitted Transferee of BellSouth Corporation that may from time to time
become a party to a counterpart of this Agreement.
"BellSouth Directors" shall mean, collectively, the Class B Directors (as
defined in the Certificate of Incorporation) nominated by BellSouth.
A Person shall be deemed the "Beneficial Owner", and to have "Beneficial
Ownership" of, and to "Beneficially Own," any securities as to which such Person
is or may be deemed to be the beneficial owner pursuant to Rule 13d-3 and 13d-5
under the Exchange Act, as such rules are in effect on the date of this
Agreement, as well as any securities as to which such Person has the right to
become Beneficial Owner (whether such right is exercisable immediately or only
after the passage of time or the occurrence of conditions) pursuant to any
agreement, arrangement or understanding (other than customary agreements with
and between underwriters and selling group members with respect to a bona fide
public offering of securities), or upon the exercise of conversion rights,
exchange rights, rights, warrants or options, or otherwise; provided, however,
that no Stockholder shall be deemed the "Beneficial Owner" or to have
"Beneficial Ownership" of, or to "Beneficially Own," any LLC Units or Shares of
the other Stockholder solely by virtue of the rights set forth in this
Agreement. For purposes of this Agreement, in determining any Person's
percentage of Beneficial Ownership of the Total Outstanding Shares, any shares
of Public Common Stock which are not actually outstanding, but which may be
acquired upon exchange of outstanding LLC Units shall be excluded from the
determination.
"Board" shall mean the Board of Directors of the Company.
"Certificate of Incorporation" shall mean the Certificate of Incorporation
of the Company filed pursuant to the DGCL with the Secretary of State of the
State of Delaware, as the same may hereafter be amended and/or restated from
time to time.
"Class A Common Stock" shall have the meaning set forth in the Recitals.
"Class B Common Stock" shall have the meaning set forth in the Recitals.
"Class B Triggering Event" shall have the meaning set forth in the
Certificate of Incorporation.
"Company" shall have the meaning set forth in the Recitals.
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EXHIBITS - Stockholders' Agreement by and among SBC Communications Inc.,
BellSouth Corporation and Alloy Mangement Corp.
EXHIBIT 10.55
"Deadlock" shall mean, with respect to any matter considered by the
Strategic Review Committee, after due consideration of such matter at a meeting
held (or upon the failure to hold a meeting duly called in accordance with the
Certificate of Incorporation and the By-laws of the Corporation within 60 days
after a matter is first noticed for consideration at a meeting), (i) the
requisite two-thirds (2/3) vote of the full Strategic Review Committee for
approval of such matter is not obtained and (ii) the Directors seeking approval
of such matter provide notice, at any time after such approval is not obtained,
to all of the members of the Strategic Review Committee stating that they desire
to have the matter designated as a "Deadlock".
"Departing Class B Stockholder" shall have the meaning set forth in the
Certificate of Incorporation.
"DGCL" shall mean the Delaware General Corporation Law, as amended.
"Directors" shall mean, collectively, the BellSouth Directors and the SBC
Directors.
"LLC Agreement" shall have the meaning set forth in the Recitals.
"LLC Units" shall have the meaning set forth in the Recitals.
"Newco" shall have the meaning set forth in the Recitals.
"SBC" shall mean SBC Communications Inc., a Delaware corporation.
"SBC Directors" shall mean, collectively, the Class B Directors (as
defined in the Certificate of Incorporation) nominated by SBC.
"Shares" shall have the meaning set forth in the Recitals.
"Stockholders" shall have the meaning set forth in the Recitals.
"Strategic Review Committee" shall mean the Strategic Review Committee of
the Board.
"Subsidiary" shall mean, as to any Person, any Person (i) of which such
Person directly or indirectly owns securities or other equity interests
representing fifty percent or more of the aggregate voting power, (ii) of which
such Person possesses the right to elect fifty percent or more of the directors
or Persons holding similar positions, or (iii) which such Person Controls
directly or indirectly through one or more intermediaries. The term Subsidiary
shall be deemed to include Newco with respect to the Company.
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EXHIBITS - Stockholders' Agreement by and among SBC Communications Inc.,
BellSouth Corporation and Alloy Mangement Corp.
EXHIBIT 10.55
"Total Outstanding Shares" shall mean from time to time the sum of (i) the
total number of Shares excluding any treasury shares, and (ii) the total number
of LLC Units outstanding, excluding any LLC Units Beneficially Owned by the
Company.
"Total Voting Power" shall mean the aggregate votes that are entitled to
be cast by all Shares.
"Transfer" shall mean any direct or indirect sale, transfer, assignment,
pledge, hypothecation, mortgage, or other disposition or encumbrance, of any
beneficial or economic interest in any LLC Units or Shares, including those by
operation or succession of law, merger or otherwise, but a Change in Control of
SBC or BellSouth shall not be deemed to be a Transfer.
"Ultimate Parent Entity" shall mean, with respect to any Person that is a
Subsidiary of a Person, the Person that, directly or indirectly, Beneficially
Owns at least fifty percent (50%) of the Voting Securities of such Subsidiary
and is not a Subsidiary of any Person who is not a natural person.
(c) Except as expressly provided herein, whenever in this Agreement
there shall be a reference to any Ancillary Agreement or this Agreement, such
reference shall be deemed to refer to such agreement as it may be amended from
time to time.
ARTICLE 2
Representations and Warranties
Each Stockholder represents and warrants to the other Stockholder and the
Company that (a) it Beneficially Owns one issued and outstanding share of Class
B Common Stock free and clear of all Liens (except for any such Liens created by
this Agreement or the LLC Agreement) and, except for this Agreement and the LLC
Agreement, there are no options, warrants or other rights, agreements,
arrangements or commitments of any character to which such Stockholder is a
party relating to the pledge, disposition or voting of any Shares of the Company
and there are no voting trusts or voting agreements with respect to such Shares;
(b) such Stockholder has full corporate power and authority, and has taken all
corporate actions necessary, to enter into, execute and deliver this Agreement
and to perform fully its obligations hereunder; (c) this Agreement has been duly
executed and delivered and constitutes the legal, valid and binding obligation
of such Stockholder, enforceable against it in accordance with its terms,
subject to the Bankruptcy and Equity Exception; (d) no notices, reports or other
filings are required to be made by such Stockholder with, nor are any consents,
registrations, approvals, permits or authorizations required to be obtained by
such Stockholder or the Company from, any Governmental Entity, in connection
with the execution and delivery of this Agreement by such Stockholder; and (e)
the execution,
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EXHIBITS - Stockholders' Agreement by and among SBC Communications Inc.,
BellSouth Corporation and Alloy Mangement Corp.
EXHIBIT 10.55
delivery and performance of this Agreement by such Stockholder does not, and the
consummation by such Stockholder of the transactions contemplated hereby will
not, violate, conflict with or constitute a breach of, or a default under, the
certificate of incorporation or by-laws of such Stockholder (or any comparable
governing instruments) or result in a violation or breach of, or constitute
(with or without due notice or lapse of time or both) a default, or give rise to
any right of termination, cancellation, modification or acceleration, whether
after the giving of notice or the passage of time of both, under any contract to
which such Stockholder is a party or which is binding on it or its assets, and
will not result in the creation of any Lien on any of the assets or properties
of such Stockholder.
ARTICLE 3
Voting
Section 3.1. Voting Agreements. Each of the Stockholders agrees to vote or
cause the voting, whether in person, by proxy or written consent, of all Shares
Beneficially Owned by it (where such Shares have the power to vote) so as to
cause the following:
(a) the election of two Class B Directors nominated by SBC (if SBC is
then entitled to have its nominees elected as Class B Directors) and two Class B
Directors nominated by BellSouth (if BellSouth is then entitled to have its
nominees elected as Class B Directors);
(b) following the issuance of Class A Common Stock, the election of one
independent director to the Board selected by SBC (if SBC is then entitled to
have its nominees elected as Class B Directors), and the election of one
independent director to the Board selected by BellSouth (if BellSouth is then
entitled to have its nominees elected as Class B Directors);
(c) the removal of any Class B Director, as determined by the
Stockholder who nominated such Class B Director;
(d) the appointment of a new Class B Director upon any vacancy of a
Class B Director on the Board or any committee thereof, as determined by the
Stockholder who nominated the Class B Director whose departure has caused the
vacancy; and
(e) approval of any matter submitted to the stockholders of the Company
which has been previously approved by the Strategic Review Committee.
Section 3.2. Voting Agreement of the Company. The Company agrees that, in
its capacity as Manager of Newco, it will not take any actions that are subject
to
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EXHIBITS - Stockholders' Agreement by and among SBC Communications Inc.,
BellSouth Corporation and Alloy Mangement Corp.
EXHIBIT 10.55
the approval of the Strategic Review Committee, as set forth in the Certificate
of Incorporation, without prior approval from the Strategic Review Committee.
ARTICLE 4
Further Agreements
Section 4.1. Independent Directors. (a) The Company agrees to use its best
efforts to cause the holders of Class A Common Stock to vote in favor of the
nomination as independent directors on the Board of the Persons nominated by SBC
and BellSouth, in accordance with this Section 4.1.
(b) Following the issuance of Class A Common Stock, each of SBC and
BellSouth shall be entitled to nominate one Person to serve as an independent
director on the Board. Prior to making such selection, each of SBC and BellSouth
shall have obtained the consent of the respective other Stockholder (for so long
as each of SBC and BellSouth shall not be a Departing Class B Stockholder), such
consent not to be unreasonably withheld.
Section 4.2. Limitation on Directors' Duties. SBC agrees that it shall
not, in relation to any BellSouth Directors, and BellSouth agrees that shall
not, in relation to any SBC Directors, take any action against such director for
negligence, default or breach of fiduciary duty on the grounds that such
negligence, default, or breach of fiduciary duty arose by virtue of the director
acting in accordance with the instructions of the Stockholder designating such
director. SBC, BellSouth and the Company agree that, in the event of any
director acting in accordance with the instructions of, or in the interest of,
the Stockholder designating such director, then any resultant dispute shall be
considered to be a Deadlock to be resolved exclusively in accordance with the
provisions of Section 4.4 hereof.
Section 4.3. Resignation of Directors. Each Stockholder agrees that upon
the occurrence of a Class B Triggering Event it will use its best efforts to
cause each Class B Director appointed by it to resign from the Board and from
all committees of the Board upon which such director serves, including
resignation from the Strategic Review Committee in accordance with Section
4.6(b) hereof, in compliance with the By-laws and applicable provisions of the
DGCL.
Section 4.4. Deadlock. The Stockholders agree that if there is Deadlock of
the Strategic Review Committee on any issue, then such matter shall be promptly
referred to the Chief Executive Officer (or comparable position) at each of SBC
and BellSouth who shall, in a timely manner, (i) resolve the Deadlock in a
manner that is mutually satisfactory to such Chief Executive Officers or (ii)
determine a procedure or method to resolve the Deadlock that is mutually
satisfactory to such Chief Executive
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EXHIBITS - Stockholders' Agreement by and among SBC Communications Inc.,
BellSouth Corporation and Alloy Mangement Corp.
EXHIBIT 10.55
Officers. Each Stockholder agrees to use its best efforts to cause the Class B
Directors nominated by it to take such actions in their capacity as directors as
shall be necessary to implement the resolution of any Deadlock.
Section 4.5. Chairman of the Board. The Chairman of the Board of the
Company shall, so long as the aggregate number of votes generally entitled to be
cast by SBC and BellSouth in matters before the stockholders of the Company
(other than the election of directors) equals at least fifty percent (50%) of
the Total Voting Power, be elected from among the Class B Directors nominated by
SBC and BellSouth.
Section 4.6. Organizational Documents of Subsidiaries. The Company agrees
that it will not amend, modify, waive or repeal any provisions of any
organizational documents for any of its Subsidiaries, except as mutually agreed
upon by both Stockholders, and as to the Company, the Stockholders agree that
they will vote in favor of any such changes to the Company's organizational
documents approved by the Strategic Review Committee.
Section 4.7. Conversion. (a) Each Stockholder agrees that prior to the
Transfer by it of Class B Shares it will, in accordance with the procedures set
forth in the Certificate of Incorporation, convert each such share into a Class
A Share except for any Transfer (as defined in the LLC Agreement) permitted
under the LLC Agreement and this Agreement which shall not require such
conversion.
(b) Each Stockholder agrees that, upon a Class B Triggering Event the
Departing Class B Stockholder shall convert each share of Class B Common Stock
then Beneficially Owned by it (and all of its Affiliates) into a Class A Share
in accordance with the procedures set forth in the Certificate of Incorporation.
Effective upon such conversion of such shares of Class B Common Stock, the Class
B Directors appointed by the holder of Class B Common Stock whose shares are
converted shall resign from the Board and all committees of the Board upon which
they serve (and the Departing Class B Stockholder shall procure such
resignations, with such resignations to be brought about in compliance with the
By-laws and any applicable provisions of the DGCL).
(c) The Company agrees to instruct the Transfer Agent not to convert a
share of Class B Common Stock until and unless the Transfer Agent shall have
received a canceled certificate for such share of Class B Common Stock.
Section 4.8. Ownership of Class B Common Stock. Each Stockholder agrees
that all of the Shares Beneficially Owned by its Ultimate Parent Entity shall be
held by only one holder of record.
ARTICLE 5
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EXHIBITS - Stockholders' Agreement by and among SBC Communications Inc.,
BellSouth Corporation and Alloy Mangement Corp.
EXHIBIT 10.55
Transfer Restrictions
Section 5.1. Transfers. Each Stockholder severally agrees that it
shall not Transfer or permit any Transfer, in any single transaction or series
of related transactions, of Shares that are Beneficially Owned by it, except (i)
with the written consent of each Stockholder that Beneficially Owns in excess of
ten percent (10%) of the Total Outstanding Shares or (ii) a Transfer by SBC or
BellSouth that complies with any of the following subsections:
(a) a Transfer of all or any such Shares to one or more wholly owned
Subsidiaries (but in no event may (i) more than one Subsidiary own Class B
Common Stock at the same time and (ii) more than five such Subsidiaries own
Class A Common Stock at the same time) of all of the Shares which are
Beneficially Owned, directly or indirectly, by it; provided that (x)
contemporaneously with any such Transfer any such wholly owned Subsidiary
becomes a party to a counterpart of this Agreement and SBC or BellSouth, as the
case may be, guarantees the performance of all obligations of any such wholly
owned Subsidiary under this Agreement; (y) such wholly owned Subsidiary agrees
that it shall be bound by the obligations of a Stockholder under this Agreement
(but shall not have any of the rights of a Stockholder under this Agreement,
except as otherwise provided herein) and (z) such wholly owned Subsidiary,
unless the only Shares owned by it are Class A Common Stock, and SBC or
BellSouth, as the case may be, shall prior to such Transfer covenant and agree
with Manager and SBC or BellSouth, as the case may be, that, for so long as the
wholly owned Subsidiary Beneficially Owns Shares, it shall continue to be a
wholly owned Subsidiary of SBC or BellSouth, as the case may be;
(b) a Transfer of Class A Common Stock to underwriters in connection
with an underwritten public offering of such Class A Common Stock that (i) is on
a firm commitment basis registered under the Securities Act and (ii) is sold in
a manner that results in a broad distribution of such Class A Common Stock, with
such distribution certified to the Company by the lead or managing underwriter
or underwriters in any such offering;
(c) a Transfer of all or any of such Shares to the Company or
any Subsidiary of the Company;
(d) a Transfer of all or any of such Shares (other than Class B
Common Stock) in a bona fide pledge of such Shares to a financial institution to
secure borrowings as permitted by applicable Law, including, but not limited to
the Communications Act; provided that contemporaneously with such pledge such
financial institution agrees with the Company that upon any foreclosure on such
pledge it shall be bound by the obligations of SBC or BellSouth, as the case may
be, under this Agreement (but shall not have any of the rights of SBC or
BellSouth, as the case may be, under this
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EXHIBITS - Stockholders' Agreement by and among SBC Communications Inc.,
BellSouth Corporation and Alloy Mangement Corp.
EXHIBIT 10.55
Agreement except as provided in this Section 5) pursuant to an assignment
effectuated in accordance with the terms hereof;
(e) (x) at any time after the earliest of (i) an IPO Date, (ii) the
first anniversary of the Closing Date, if Newco, the Company, or a Subsidiary of
Newco or the Company at such first anniversary does not hold licenses from the
FCC to provide Cellular Services or PCS Services covering at least 90% of the
U.S. population, or (iii) the fourth anniversary of the Closing Date, or (y)
pursuant to Section 4.1(e)(y) of the LLC Agreement, a Transfer of, in the case
of clause (x), any or all, or, in the case of clause (y), all of the Class A
Common Stock Beneficially Owned by such Stockholder by way of (i) a distribution
of such Class A Common Stock or of all of the Voting Securities and other equity
securities of a Subsidiary of such Stockholder that owns Class A Common Stock to
all of the common shareholders of a series or class of securities (in each case
registered under the Exchange Act) of such Stockholder or its Ultimate Parent
Entity or (ii) a split-off pursuant to which each common shareholder of a series
or class of securities (in each case registered under the Exchange Act) such
Stockholder or its Ultimate Parent Entity is offered on the same terms the right
to exchange common shares of such Stockholder or its Ultimate Parent Entity for
the Class A Common Stock (provided, that neither SBC nor BellSouth may effect
Transfers pursuant to this Section 5.1(e) and Section 4.1(e)(y) of the LLC
Agreement in the aggregate more than two times); or
(f) (x) at any time after the earliest of (i) an IPO Date, (ii) the
first anniversary of the Closing Date, if Newco, the Company, or a Subsidiary of
Newco or the Company at such first anniversary does not hold licenses from the
FCC to provide Cellular Services or PCS Services covering at least 90% of the
U.S. population, or (iii) the fourth anniversary of the Closing Date, or (y)
pursuant to Section 4.1(f)(y) of the LLC Agreement, a Transfer, not otherwise
complying with paragraphs (a) - (e) above, of all (but not less than all) of
such Shares Beneficially Owned by such Stockholder and its Ultimate Parent
Entity to any Person and after complying with all of the provisions set forth in
Section 4.2 of the LLC Agreement; and provided that contemporaneously with such
Transfer (i) such Person or, if such Person is a Subsidiary of any other Person,
the Ultimate Parent Entity of such Person, becomes a party to this Agreement as
SBC or BellSouth, as the case may be (whereupon any reference to SBC or
BellSouth, as the case may be, herein shall be deemed to be a reference to such
Person or, if applicable, its Ultimate Parent Entity), and (ii) such Person
causes to be delivered to Newco a legal opinion of counsel of national standing,
in form and substance reasonably acceptable to Newco and the non-Transferring
Stockholder), to the effect set forth in Article 2.
(g) At the election of a Stockholder (i) the Company shall take and
cause its Subsidiaries to take all reasonable actions as may be reasonably
necessary to approve (including, without limitation, by convening a special
meeting of the holders of Shares) and complete the merger or any wholly owned
Subsidiary of such Stockholder,
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EXHIBITS - Stockholders' Agreement by and among SBC Communications Inc.,
BellSouth Corporation and Alloy Mangement Corp.
EXHIBIT 10.55
with and into Manager, and (ii) the other Stockholder agrees to vote all Shares
Beneficially Owned by it in favor of such merger; provided that (a) the Company
is the surviving corporation in such merger, (b) all of the Class A Common Stock
owned of record and held by the wholly owned Subsidiary of such Stockholder to
be merged into the Company are so owned and held free and clear of all
Encumbrances, (c) the wholly owned Subsidiary of such Stockholder to be merged
into the Company has no liabilities, other than (i) those incident to this
Agreement and (ii) those for which the Stockholder provides full indemnification
to the Company and that do not exceed five percent of the then current total
assets of such Subsidiary, (d) the merger consideration paid to such Stockholder
is identical to the number of shares of Class A Common Stock owned of record and
held by such Subsidiary, and (e) such merger will not be otherwise adverse to
the Company or Newco except in any immaterial respect (taking into account any
efforts by such Stockholder to mitigate any adverse effects on Newco); provided
that for such purposes the termination of Newco for federal, state or local tax
purposes and any adverse consequences therefrom shall be deemed to be
immaterial. No such merger shall be consummated until all necessary regulatory
approvals have been obtained. The Company will use commercially reasonable
efforts to cause such merger to qualify as a reorganization within the meaning
of Section 368(a) of the Code.
Section 5.2. Conversion Not a Transfer. Notwithstanding anything set
forth in this Agreement to the contrary, the provisions of this Article 5 shall
not apply to conversions of Class B Stock into Class A Common Stock in
accordance with the Manager Certificate.
Section 5.3. Party Hereto. Each Stockholder agrees that upon any
Transfer of any shares of Class B Common Stock in accordance with the terms
hereof, the transferee of the Class B Common Stock shall execute and become a
party to this Agreement in the same capacity as the Stockholders transferring
the Shares. Any such Transfer shall be void unless such Transfer complies with
the provisions of this Section.
Section 5.4. Class B Common Stock. Notwithstanding anything set
forth in this Agreement to the contrary, no Stockholder shall Transfer any Class
B Common Stock unless all of the shares of Class B Common Stock Beneficially
Owned by it are Transferred to the same Person.
ARTICLE 6
Certificates
Section 6.1. Certificates. Any Shares held by a Stockholder shall be
represented by a certificate or certificates, setting forth upon the face
thereof that the Company is a corporation organized under the laws of the State
of Delaware, the name of the Person to which it is issued and the number of
Shares which such certificate
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EXHIBITS - Stockholders' Agreement by and among SBC Communications Inc.,
BellSouth Corporation and Alloy Mangement Corp.
EXHIBIT 10.55
represents. Such certificates shall be entered in the books of the Company as
they are issued, and shall be signed by the Chairman or the Chief Executive
Officer of the Company. Upon any Transfer permitted under this Agreement and the
LLC Agreement, the transferring Stockholder shall (i) issue to the transferee a
certificate representing the number of Shares so transferred and (ii) surrender
to the Company and the Company shall issue to the transferring Stockholder
certificates representing the remaining Shares, if any, held by such
transferring Stockholder after taking into account such Transfer. All
certificates representing Shares (unless registered under the Securities Act of
1933, as amended (the "Securities Act")), shall bear the following legend:
THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR
ANY SECURITIES REGULATORY AUTHORITY OF ANY STATE, AND MAY NOT BE SOLD,
ASSIGNED, PLEDGED, ENCUMBERED, TRANSFERRED, GRANTED AN OPTION WITH RESPECT
TO OR OTHERWISE DISPOSED OF, (I) UNLESS AND UNTIL THEY HAVE BEEN
REGISTERED UNDER THE SECURITIES ACT OR SUCH SALE, ASSIGNMENT, PLEDGE,
ENCUMBRANCE, TRANSFER, OPTION GRANT OR OTHER DISPOSITION IS EXEMPT FROM
REGISTRATION UNDER THE SECURITIES ACT AND (II) UNLESS IN ACCORDANCE WITH
THE PROVISIONS OF THE LIMITED LIABILITY COMPANY AGREEMENT OF ALLOY LLC AND
THE STOCKHOLDERS AGREEMENT (IN EACH CASE AS AMENDED FROM TIME TO TIME),
COPIES OF WHICH ARE AVAILABLE FOR INSPECTION AT THE OFFICES OF THE
COMPANY.
Section 6.2. Lost or Destroyed Certificates. The Company may issue a
new certificate for Shares in place of any certificate or certificates
theretofore issued by it, alleged to have been lost or destroyed, upon the
making of an affidavit of that fact, and providing an indemnity in form and
subject reasonably satisfactory to the Board by the Person claiming the
certificate to be lost or destroyed.
ARTICLE 7
Termination
Section 7.1. Termination Events. This Agreement shall
terminate upon the occurrence of any of the following events:
(a) the written agreement of the parties hereto;
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EXHIBITS - Stockholders' Agreement by and among SBC Communications Inc.,
BellSouth Corporation and Alloy Mangement Corp.
EXHIBIT 10.55
(b) a Class B Triggering Event and the conversion of all shares of
Class B Common Stock of the Departing Class B Stockholder and its Affiliates
into Class A Common Stock; or
(c) the dissolution of the Company.
Section 7.2. Effect of Termination; Survival. In the event of a
termination, this Agreement (other than Article 1, Article 2, Section 4.2,
Section 4.6, Section 6.1 and Article 8) shall terminate automatically without
any action by any party and the terminated provisions of this Agreement shall
not survive such termination.
ARTICLE 8
Miscellaneous
Section 8.1. GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES HERETO SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH AND SUBJECT TO THE LAWS OF THE STATE OF DELAWARE, WITHOUT
REFERENCE TO CONFLICTS OF LAWS PRINCIPLES.
Section 8.2. VENUE; WAIVER OF JURY TRIAL. THE PARTIES HEREBY
IRREVOCABLY SUBMIT TO THE JURISDICTION OF THE COURTS OF THE STATE OF DELAWARE
AND THE FEDERAL COURTS OF THE UNITED STATES OF AMERICA LOCATED IN THE STATE OF
DELAWARE SOLELY IN RESPECT OF THE INTERPRETATION AND ENFORCEMENT OF THE
PROVISIONS OF THIS AGREEMENT AND OF THE DOCUMENTS REFERRED TO IN THIS AGREEMENT,
AND IN RESPECT OF THE TRANSACTIONS CONTEMPLATED HEREBY, AND HEREBY WAIVE, AND
AGREE NOT TO ASSERT, AS A DEFENSE IN ANY ACTION, SUIT OR PROCEEDING FOR THE
INTERPRETATION OR ENFORCEMENT HEREOF OR OF ANY SUCH DOCUMENT, THAT IT IS NOT
SUBJECT THERETO OR THAT SUCH ACTION, SUIT OR PROCEEDING MAY NOT BE BROUGHT OR IS
NOT MAINTAINABLE IN SAID COURTS OR THAT THE VENUE THEREOF MAY NOT BE APPROPRIATE
OR THAT THIS AGREEMENT OR ANY SUCH DOCUMENT MAY NOT BE ENFORCED IN OR BY SUCH
COURTS, AND THE PARTIES HERETO IRREVOCABLY AGREE THAT ALL CLAIMS WITH RESPECT TO
SUCH ACTION OR PROCEEDING SHALL BE HEARD AND DETERMINED IN SUCH A DELAWARE STATE
OR FEDERAL COURT. THE PARTIES HEREBY CONSENT TO AND GRANT ANY SUCH COURT
JURISDICTION OVER THE PERSON OF SUCH PARTIES AND OVER THE SUBJECT MATTER OF SUCH
DISPUTE AND AGREE THAT MAILING OF PROCESS OR OTHER PAPERS IN CONNECTION WITH ANY
SUCH ACTION OR PROCEEDING IN THE MANNER PROVIDED IN
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EXHIBITS - Stockholders' Agreement by and among SBC Communications Inc.,
BellSouth Corporation and Alloy Mangement Corp.
EXHIBIT 10.55
PARAGRAPH (C) OF THIS SECTION OR IN SUCH OTHER MANNER AS MAY BE PERMITTED BY LAW
SHALL BE VALID AND SUFFICIENT SERVICE THEREOF.
EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY
ARISE UNDER THIS AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT
ISSUES, AND THEREFORE EACH SUCH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY
WAIVES ANY RIGHT SUCH PARTY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY
LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT,
OR THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT. EACH PARTY CERTIFIES AND
ACKNOWLEDGES THAT (i) NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY
HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE
EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER, (ii) EACH PARTY
UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF THIS WAIVER, (iii) EACH PARTY
MAKES THIS WAIVER VOLUNTARILY, AND (iv) EACH PARTY HAS BEEN INDUCED TO ENTER
INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND
CERTIFICATIONS IN THIS SECTION 8.2.
Section 8.3. Notices. All notices, requests, claims, demands and
other communications hereunder shall be in writing and shall be deemed given (i)
on the first business day following the date of delivery in person or by
telecopy (in each case, with telephonic confirmation of receipt by the
addressee), (ii) on the first business day following timely deposit with an
overnight courier service, if sent by overnight courier specifying next day
delivery or (iii) on the first business day that is at least five days following
deposit in the mails, if sent by first class mail, to the Parties at the
following addresses (or at such other address for a party as shall be specified
by like notice):
If to SBC, to:
SBC Communications Inc.
▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Chairman and Chief Executive Officer
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
with a copy to:
SBC Communications Inc.
▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Senior Executive Vice President and General Counsel
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EXHIBITS - Stockholders' Agreement by and among SBC Communications Inc.,
BellSouth Corporation and Alloy Mangement Corp.
EXHIBIT 10.55
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
If to BellSouth, to:
BellSouth Corporation ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇.▇.
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Chief Executive Officer
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
with a copy to:
BellSouth Corporation ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇.▇.
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: General Counsel
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
If to the Company to:
Alloy Management Corp.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Chief Executive Officer
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
with a copy to:
SBC Communications Inc.
▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Senior Executive Vice President and General Counsel
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
and
BellSouth Corporation
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇.▇.
▇▇▇▇▇ ▇▇▇▇
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EXHIBITS - Stockholders' Agreement by and among SBC Communications Inc.,
BellSouth Corporation and Alloy Mangement Corp.
EXHIBIT 10.55
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: General Counsel
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
Section 8.4. Severability. The provisions of this Agreement shall be
deemed severable and the invalidity or unenforceability of any provision shall
not affect the validity or enforceability of the other provisions hereof. If any
provision of this Agreement, or the application thereof to any Person or any
circumstance, is invalid or unenforceable, (i) a suitable and equitable
provision shall be substituted therefor in order to carry out, so far as may be
valid and enforceable, the intent and purpose of such invalid or unenforceable
provision and (ii) the remainder of this Agreement and the application of such
provision to other Persons or circumstances shall not be affected by such
invalidity or unenforceability, nor shall such invalidity or unenforceability
affect the validity or enforceability of such provision, or the application
thereof, in any other jurisdiction.
Section 8.5. Counterparts. For the convenience of the
parties hereto, this Agreement may be executed in any number of counterparts,
each of which shall be deemed to be an original and all of which shall
together constitute the same agreement.
Section 8.6. Headings; Recitals. All Section headings and
the recitals herein are for convenience of reference only and are not part of
this Agreement, and no construction or reference shall be derived therefrom.
Section 8.7. Specific Performance. Each party hereto acknowledges
that it will be impossible to measure in money the damage to the other party if
a party hereto fails to comply with any of the obligations imposed by this
Agreement, that every such obligation is material and that, in the event of any
such failure, the other party will not have an adequate remedy at law or
damages. Accordingly, each party hereto agrees that injunctive relief or other
equitable remedy, in addition to remedies at law or damages, is the appropriate
remedy for any such failure and will not oppose the granting of such relief on
the basis that the other party has an adequate remedy at law. Each party hereto
agrees that it shall not seek, and agrees to waive any requirement for, the
securing or posting of a bond in connection with any other party's seeking or
obtaining such equitable relief.
Section 8.8. Filing Actions. Prior to filing or referring any matter
to a court of law or equity, the parties agree to provide the other parties at
least ten Business Days' notice of the intention to so refer a matter, provided
that the foregoing shall not apply to any request for a preliminary injunction
or temporary restraining order.
Section 8.9. Successors and Assigns. This Agreement shall be binding
upon and inure to the benefit of the parties hereto and their respective
successors and
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EXHIBITS - Stockholders' Agreement by and among SBC Communications Inc.,
BellSouth Corporation and Alloy Mangement Corp.
EXHIBIT 10.55
permitted assigns and shall not be assignable except to the extent expressly
permitted hereby and any purported assignment of this Agreement or of any Shares
in violation of this Agreement shall be void. In the case of a merger or other
business combination or reorganization transaction involving the Company where
securities other than those of the Company are issued to the holders of Shares,
this Agreement shall be assigned to and shall inure to the benefit of and be
binding upon the Person issuing securities in such transaction and any reference
herein to the Company shall be deemed to be a reference to such Person. The
rights and obligations under this Agreement shall be assigned by SBC and
BellSouth to a Permitted Transferee in connection with the Transfer to such
Permitted Transferee pursuant to Section 4.1 of the LLC Agreement to the extent
of a Transfer to any such Permitted Transferee.
Section 8.10. Entire Agreement; Amendment; Waiver. This Agreement
supersedes all prior agreements, written or oral, among the parties hereto with
respect to the subject matter hereof and contains the entire agreement among the
parties with respect to the subject matter hereof. This Agreement may not be
amended, supplemented or modified, and no provisions hereof may be modified or
waived, except by an instrument in writing signed by the party or parties
affected or to be affected thereby. No waiver of any provisions hereof by any
party shall be deemed a waiver of any other provisions hereof by any such party,
nor shall any such waiver be deemed a continuing waiver of any provision hereof
by such party.
Section 8.11. No Relief of Liabilities. No Transfer by SBC or
BellSouth of Beneficial Ownership of any Securities shall relieve such Person of
any liabilities or obligations to the Company or SBC or BellSouth, as the case
may be, that arose or accrued prior to the date of such Transfer.
Section 8.12. Further Assurances. Each party hereto shall at any
time, and from time to time, execute and deliver such additional instruments and
other documents and shall at any time, and from time to time, take such further
actions as may be necessary or appropriate to effectuate, carry out and comply
with all of the terms of this Agreement and the transactions contemplated
hereby.
Section 8.13. THIRD PARTY BENEFICIARIES. NOTHING IN THIS AGREEMENT,
EXPRESS OR IMPLIED, IS INTENDED TO CONFER UPON ANY THIRD PARTY ANY RIGHTS OR
REMEDIES OF ANY NATURE WHATSOEVER UNDER OR BY REASON OF THIS AGREEMENT.
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EXHIBITS - Stockholders' Agreement by and among SBC Communications Inc.,
BellSouth Corporation and Alloy Mangement Corp.
EXHIBIT 10.55
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement
as of the date first written above.
SBC COMMUNICATIONS INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Senior Executive Vice President,
Corporate Development
BELLSOUTH CORPORATION
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President, Corporate Development
ALLOY MANAGEMENT CORP.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Chief Operating Officer