Exhibit 1
---------
SHARE ISSUANCE AGREEMENT
dated as of
May 18, 2001
among
▇▇▇ COMMUNICATIONS, INC.,
COX@HOME, INC.,
and
AT&T CORP.
TABLE OF CONTENTS
PAGE
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ARTICLE 1
DEFINITIONS
Section 1.01. DEFINITIONS.................................................1
ARTICLE 2
ISSUANCE AND DELIVERY
Section 2.01. ISSUANCE AND DELIVERY.......................................2
Section 2.02. CLOSING.....................................................3
ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF COX AND COX@HOME
Section 3.01. CORPORATE EXISTENCE AND POWER...............................3
Section 3.02. CORPORATE AUTHORIZATION.....................................3
Section 3.03. GOVERNMENTAL AUTHORIZATION..................................3
Section 3.04. NONCONTRAVENTION............................................3
Section 3.05. PRIVATE PLACEMENT...........................................4
Section 3.06. HSR MATTERS.................................................4
ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF AT&T
Section 4.01. CORPORATE EXISTENCE AND POWER...............................4
Section 4.02. CORPORATE AUTHORIZATION.....................................5
Section 4.03. GOVERNMENTAL AUTHORIZATION..................................5
Section 4.04. CAPITAL STOCK...............................................5
Section 4.05. SHARE AUTHORIZATION; OWNERSHIP..............................5
Section 4.06. NONCONTRAVENTION............................................5
Section 4.07. HSR MATTERS.................................................5
ARTICLE 5
COVENANTS OF COX AND COX@HOME
Section 5.01. NOTICES OF CERTAIN EVENTS...................................6
ARTICLE 6
COVENANTS OF AT&T
Section 6.01. NOTICES OF CERTAIN EVENTS...................................6
ARTICLE 7
MUTUAL COVENANTS
Section 7.01. REASONABLE EFFORTS; FURTHER ASSURANCES......................6
Section 7.02. CERTAIN FILINGS.............................................7
Section 7.03. PUBLIC ANNOUNCEMENTS........................................7
Section 7.04. RESTRICTIVE LEGEND ON CERTIFICATES..........................7
Section 7.05. TAX MATTERS.................................................7
ARTICLE 8
CONDITIONS TO CLOSING
Section 8.01. CONDITIONS TO OBLIGATIONS OF THE PARTIES....................8
Section 8.02. CONDITIONS TO OBLIGATION OF AT&T............................8
Section 8.03. CONDITIONS TO OBLIGATION OF COX AND COX@HOME................8
ARTICLE 9
SURVIVAL; INDEMNIFICATION
Section 9.01. SURVIVAL....................................................9
Section 9.02. INDEMNIFICATION.............................................9
Section 9.03. PROCEDURES..................................................9
ARTICLE 10
TERMINATION
Section 10.01. GROUNDS FOR TERMINATION...................................10
Section 10.02. EFFECT OF TERMINATION.....................................10
Section 10.03. POST-CLOSING TERMINATION..................................11
ARTICLE 11
MISCELLANEOUS
Section 11.01. NOTICES...................................................11
Section 11.02. AMENDMENTS AND WAIVERS....................................12
Section 11.03. EXPENSES..................................................12
Section 11.04. SUCCESSORS AND ASSIGNS....................................12
Section 11.05. GOVERNING LAW.............................................12
Section 11.06. JURISDICTION..............................................12
Section 11.07. WAIVER OF JURY TRIAL......................................12
Section 11.08. COUNTERPARTS; THIRD PARTY BENEFICIARIES...................13
Section 11.09. CAPTIONS..................................................13
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SHARE ISSUANCE AGREEMENT
AGREEMENT dated as of May 18, 2001 among ▇▇▇ Communications, Inc. a
Delaware corporation with its offices located at ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇ ("COX"), Cox@Home, Inc., a Delaware corporation and a wholly owned
subsidiary of Cox formerly known as Cox Teleport Providence, Inc., with its
offices located at ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
("COX@HOME") and AT&T Corp., a New York corporation with its offices located at
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ("AT&T").
R E C I T A L :
WHEREAS, on March 28, 2000 AT&T, Cox, Comcast Corporation, At Home
Corporation, and certain of their respective subsidiaries entered into a letter
agreement (the "LETTER AGREEMENT"), including term sheets attached thereto as
Annexes A, B and C (collectively, the "TERM SHEETS");
WHEREAS, Cox@Home, Cox and AT&T desire to enter into this Share Issuance
Agreement pursuant to which, upon the terms and subject to the conditions herein
set forth, AT&T will issue to Cox@Home 75,000,000 shares of AT&T common stock,
par value $1.00 per share ("AT&T Shares"), and the Cox Put (as defined below)
shall thereupon be deemed fully satisfied;
NOW THEREFORE, the parties hereto agree as follows:
ARTICLE 1
DEFINITIONS
Section 1.01. DEFINITIONS. (a) The following terms, as used herein, have
the following meanings:
"AFFILIATE" means, with respect to any Person, any other Person directly
or indirectly controlling, controlled by, or under common control with such
Person.
"AT&T SHARES" has the meaning set forth in the Recital.
"CLOSING DATE" means the date of the Closing.
"COX PUT" means the rights and obligations set forth in Section 1 of Term
Sheet Annex A to the Letter Agreement, other than those that are between or
among AT&T, Comcast Corporation and their respective affiliates.
"HSR ACT" means the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust Improvements Act of 1976,
as amended.
"LETTER AGREEMENT" has the meaning set forth in the Recital.
"LIEN" means, with respect to any property or asset, any mortgage, lien,
pledge, charge, security interest, encumbrance or other adverse claim of any
kind in respect of such property or
asset. For the purposes of this Agreement, a Person shall be deemed to own
subject to a Lien any property or asset which it has acquired or holds subject
to the interest of a vendor or lessor under any conditional sale agreement,
capital lease or other title retention agreement relating to such property or
asset.
"1933 ACT" means the Securities Act of 1933, as amended, and the rules and
regulations promulgated thereunder.
"1934 ACT" means the Securities Exchange Act of 1934, as amended, and the
rules and regulations promulgated thereunder.
"PERSON" means an individual, corporation, partnership, limited liability
company, association, trust or other entity or organization, including a
government or political subdivision or an agency or instrumentality thereof.
"PUT SATISFACTION ACKNOWLEDGMENT" means the letter agreement between AT&T,
Cox, and Cox@Home, substantially in the form attached as Exhibit A hereto.
"REGISTRATION RIGHTS AGREEMENT" means the Registration Rights Agreement
between AT&T and Cox@Home, substantially in the form attached as Exhibit B
hereto.
"TERM SHEETS" has the meaning set forth in the Recital.
(b) Each of the following terms is defined in the Section set forth
opposite such term:
TERM SECTION
Certificate 7.04
Closing 2.02
Closing Price 7.05
Damages 9.02
Indemnified Party 9.03
Indemnifying Party 9.03
Warranty Breach 9.02
ARTICLE 2
ISSUANCE AND DELIVERY
Section 2.01. ISSUANCE AND DELIVERY. Upon the terms and subject to the
conditions of this Agreement, AT&T agrees to issue and deliver to Cox@Home, and
Cox@Home agrees to accept from AT&T, the AT&T Shares at the Closing. Immediately
upon delivery by AT&T to Cox@Home of the AT&T Shares, AT&T and its subsidiaries
shall be deemed to have satisfied the Cox Put in full. The AT&T Shares shall be
delivered as provided in Section 2.02. Except for the satisfaction in full of
the Cox Put, the Letter Agreement shall be unaffected by this Agreement.
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Section 2.02. CLOSING. The closing (the "CLOSING") of the issuance of the
AT&T Shares hereunder shall take place at the offices of Wachtell, Lipton, ▇▇▇▇▇
& ▇▇▇▇, ▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, as promptly as practicable, but in no
event later than 5 business days, after satisfaction of the conditions set forth
in Article 8, or at such other time or place as the parties may agree. At the
Closing AT&T shall deliver to Cox@Home not more than six certificates for the
AT&T Shares registered in the name of Cox@Home and in such denominations as
Cox@Home shall request in writing not later than three full business days prior
to the Closing Date with any transfer taxes payable in connection with the
transfer of the AT&T Shares to Cox@Home duly paid by AT&T.
ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF COX AND COX@HOME
Cox (with respect to itself and to Cox@Home) and Cox@Home (solely as to
itself) represent and warrant to AT&T as of the date hereof and as of the
Closing Date that:
Section 3.01. CORPORATE EXISTENCE AND POWER. Each of Cox and Cox@Home is a
corporation duly incorporated, validly existing and in good standing under the
laws of its jurisdiction of incorporation and has all corporate powers and all
material governmental licenses, authorizations, permits, consents and approvals
required to carry on its business as now conducted. Cox@Home is a wholly owned
subsidiary of Cox.
Section 3.02. CORPORATE AUTHORIZATION. The execution, delivery and
performance by each of Cox and Cox@Home of this Agreement and the consummation
of the transactions contemplated hereby are within Cox@Home's and ▇▇▇'▇
respective corporate powers and have been duly authorized by all necessary
corporate action on the part of both Cox and Cox@Home. Assuming due execution by
AT&T, this Agreement constitutes a valid and binding agreement of Cox and
Cox@Home.
Section 3.03. GOVERNMENTAL AUTHORIZATION. The execution, delivery and
performance by Cox and Cox@Home of this Agreement and the consummation of the
transactions contemplated hereby require no action by or in respect of, or
filing with, any governmental body, agency or official, other than (i)
compliance with any applicable requirements of the HSR Act, if any; (ii)
compliance with any applicable requirements of the 1933 Act; and (iii)
compliance with any applicable requirements of the 1934 Act.
Section 3.04. NONCONTRAVENTION. The execution and delivery by each of Cox
and Cox@Home of, and the performance by each of Cox and Cox@Home of its
respective obligations under, this Agreement will not, assuming compliance with
the matters referred to in Section 3.03, contravene any provision of applicable
law or the certificate of incorporation or by-laws of Cox@Home or Cox, as the
case may be, or any agreement or other instrument binding upon Cox@Home, Cox or
any of their respective subsidiaries, that is material to Cox@Home, Cox and
their respective subsidiaries, taken as a whole, or any judgment, order or
decree of any governmental body, agency or court having jurisdiction over
Cox@Home, Cox or any of their respective subsidiaries, and no consent, approval,
authorization or order of, or qualification with, any governmental body or
agency is required for the performance by Cox@Home or Cox of their respective
obligations under this Agreement.
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Section 3.05. PRIVATE PLACEMENT. (a) Cox@Home is acquiring the AT&T Shares
solely for the purpose of investment for Cox@Home's own account, not as a
nominee or agent, and not with a view to, or for offer or sale in connection
with, any distribution thereof in any transaction which would be in violation of
the securities laws of the United States of America or any state thereof.
Neither Cox@Home nor Cox has any contract, undertaking, agreement or arrangement
with any person to sell, transfer or grant participation to any third person
with respect to any of the AT&T Shares. Cox@Home understands that the AT&T
Shares have not been registered under the 1933 Act by reason of a specific
exemption from the registration provisions of the 1933 Act which depends upon,
among other things, the bona fide nature of the investment intent as expressed
herein.
(b) Cox@Home has sufficient knowledge and experience in financial and
business matters so as to be capable of evaluating the merits and risks of its
investment in the AT&T Shares and Cox@Home is capable of bearing the economic
risks of such investment, including a complete loss of its investment in the
AT&T Shares.
(c) Cox@Home understands that the AT&T Shares may not be sold, transferred
or otherwise disposed of without registration under the 1933 Act, or the
availability of an exemption therefrom, and that in the absence of an effective
registration statement covering such stock or an available exemption from
registration, such AT&T Shares must be held indefinitely. Cox@Home shall not
sell, transfer or otherwise dispose of any AT&T Shares except in a manner fully
consistent with its representations contained in this Section 3.05 and otherwise
in full compliance with the terms and conditions of this Agreement and the
provisions of applicable law. Cox and Cox@Home each understands that AT&T is
under no obligation to register the AT&T Shares exchanged hereunder except as
provided in the Registration Rights Agreement.
Section 3.06. HSR MATTERS. Cox@Home and its Affiliates that, as defined in
16 C.F.R. ss. 801.1(b), "control," "are controlled by" or "are under common
control with" Cox@Home hold in the aggregate less than 0.5% of the outstanding
voting securities of AT&T. The AT&T Shares are being acquired by Cox@Home, and
will be held by Cox@Home and its Affiliates, "solely for the purpose of
investment," as such term is defined in 16 C.F.R. ss. 801.1(i)(1).
ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF AT&T
AT&T represents and warrants to Cox and Cox@Home as of the date hereof and
as of the Closing Date that:
Section 4.01. CORPORATE EXISTENCE AND POWER. AT&T has been duly
incorporated, is validly existing as a corporation in good standing under the
laws of the jurisdiction of its incorporation, has the corporate power and
authority to own its property and to conduct its business as currently conducted
and (1) is duly qualified to transact business, (2) is in good standing in each
jurisdiction in which the conduct of its business or its ownership or leasing of
property requires such qualification, and (3) has all material governmental
licenses, authorizations, permits, consents and approvals required to own its
property and to conduct its business as currently conducted, except in the cases
of (1), (2) and (3) to the extent that the failure to be so qualified or be
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in good standing or to have such licenses, authorizations, permits, consents and
approvals would not have a material adverse effect on AT&T and its subsidiaries,
taken as a whole.
Section 4.02. CORPORATE AUTHORIZATION. The execution, delivery and
performance by AT&T of this Agreement and the consummation of the transactions
contemplated hereby are within AT&T's corporate powers and have been duly
authorized by all necessary corporate action on the part of AT&T. Assuming the
due execution by Cox and Cox@Home, this Agreement constitutes a valid and
binding agreement of AT&T.
Section 4.03. GOVERNMENTAL AUTHORIZATION. The execution, delivery and
performance by AT&T of this Agreement and the consummation of the transactions
contemplated hereby require no action by or in respect of, or filing with, any
governmental body, agency or official, other than (i) compliance with any
applicable requirements of the 1933 Act; and (ii) compliance with any applicable
requirements of the 1934 Act.
Section 4.04. CAPITAL STOCK. The authorized capital stock of AT&T conforms
in all material respects to the description thereof contained in the
Registration Statement on Form S-4 of AT&T filed with the Securities and
Exchange Commission on April 19, 2001 under the heading "Description of AT&T
Capital Stock", as amended or supplemented to the date hereof.
Section 4.05. SHARE AUTHORIZATION; OWNERSHIP. (a) The AT&T Shares have
been duly authorized and, when issued and delivered in accordance with the terms
of this Agreement, will be validly issued, fully paid and non-assessable, and
the issuance of such AT&T Shares will not be subject to any preemptive or
similar rights.
(b) AT&T will deliver to Cox@Home at the Closing valid title to the AT&T
Shares free and clear of any Lien and any other limitation or restriction
(including any restriction on the right to vote, sell or otherwise dispose of
the AT&T Shares, other than restrictions arising under applicable law).
Section 4.06. NONCONTRAVENTION. The execution and delivery by AT&T of, and
the performance by AT&T of its obligations under, this Agreement will not,
assuming compliance with the matters referred to in Section 4.03, contravene any
provision of applicable law or the certificate of incorporation or by-laws of
AT&T, or any agreement or other instrument binding upon AT&T or any of its
subsidiaries that is material to AT&T and its subsidiaries, taken as a whole, or
any judgment, order or decree of any governmental body, agency or court having
jurisdiction over AT&T or any of its subsidiaries, and no consent, approval,
authorization or order of, or qualification with, any governmental body or
agency is required for the performance by AT&T of its obligations under this
Agreement.
Section 4.07. HSR MATTERS. The AT&T Shares will, upon delivery pursuant to
this Agreement, comprise less than 5% of AT&T's outstanding voting securities.
ARTICLE 5
COVENANTS OF COX AND COX@HOME
Cox and Cox@Home agree that:
5
Section 5.01. NOTICES OF CERTAIN EVENTS. Cox and Cox@Home shall promptly
notify AT&T of:
(a) any notice or other communication from any Person alleging that
the consent of such Person is or may be required in connection with the
transactions contemplated by this Agreement;
(b) any notice or other communication from any governmental or
regulatory agency or authority in connection with the transactions
contemplated by this Agreement; and
(c) any actions, suits, claims, investigations or proceedings
commenced or, to its knowledge threatened against, relating to or
involving or otherwise affecting Cox@Home or Cox that cause or could
reasonably be expected to cause the condition set forth in Section 8.01(a)
or 8.01(d) not to be fulfilled.
ARTICLE 6
COVENANTS OF AT&T
AT&T agrees that:
Section 6.01. NOTICES OF CERTAIN EVENTS. AT&T shall promptly notify
Cox@Home of:
(a) any notice or other communication from any Person alleging that
the consent of such Person is or may be required in connection with the
transactions contemplated by this Agreement;
(b) any notice or other communication from any governmental or
regulatory agency or authority in connection with the transactions
contemplated by this Agreement; and
(c) any actions, suits, claims, investigations or proceedings
commenced or, to its knowledge threatened against, relating to or
involving or otherwise affecting AT&T that cause or could reasonably be
expected to cause the condition set forth in Section 8.01(a) or 8.01(d)
not to be fulfilled.
ARTICLE 7
MUTUAL COVENANTS
The parties hereto agree that:
Section 7.01. REASONABLE EFFORTS; FURTHER ASSURANCES. Subject to the terms
and conditions of this Agreement, AT&T, Cox and Cox@Home will use all reasonable
efforts to take, or cause to be taken, all actions and to do, or cause to be
done, all things necessary or desirable under applicable laws and regulations or
otherwise to consummate the transactions contemplated by this Agreement.
Cox@Home, Cox and AT&T agree to execute and deliver such other documents,
certificates, agreements and other writings and to take such other actions as
may be nec-
6
▇▇▇▇▇▇ or desirable in order to consummate or implement expeditiously the
transactions contemplated by this Agreement.
Section 7.02. CERTAIN FILINGS. (a) Cox@Home, Cox and AT&T shall cooperate
with one another (i) in determining whether any action by or in respect of, or
filing with, any governmental body, agency, official or authority is required,
or any actions, consents, approvals or waivers are required to be obtained from
parties to any material contracts, in connection with the consummation of the
transactions contemplated by this Agreement and (ii) in taking such actions or
making any such filings, furnishing information required in connection therewith
and seeking timely to obtain any such actions, consents, approvals or waivers.
Section 7.03. PUBLIC ANNOUNCEMENTS. The parties agree to consult with each
other before issuing any press release or making any public statement with
respect to this Agreement or the transactions contemplated hereby and, except
for any press releases and public statements the making of which may be required
by applicable law or any listing agreement with any national securities
exchange, will not issue any such press release or make any such public
statement prior to such consultation.
Section 7.04. RESTRICTIVE LEGEND ON CERTIFICATES. Cox and Cox@Home each
agrees to the imprinting, so long as required by law, of a legend on all
certificates representing AT&T Shares received at the consummation of the
transactions contemplated by this Agreement (each such certificate, a
"CERTIFICATE") to the following effect:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR THE SECURITIES
LAWS OF ANY STATE AND MAY NOT BE OFFERED FOR SALE, SOLD OR OTHERWISE
TRANSFERRED EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER
SUCH ACT AND APPLICABLE STATE SECURITIES LAWS OR PURSUANT TO AN APPLICABLE
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF SUCH ACT AND SUCH LAWS.
The legend set forth above may be removed if and when the AT&T Shares
represented by a Certificate are disposed of pursuant to an effective
registration statement under the Securities Act or upon the selling party's
receipt of an opinion of counsel, in form and substance and from counsel
reasonably satisfactory to AT&T and its counsel, confirming that any sale or
transfer of the shares represented by the Certificate will not require
registration of such shares under the Securities Act or under any blue sky or
similar laws. In such event, the holder of any Certificate may exchange it for a
new certificate, without legend, representing the same number of shares as were
represented by the Certificate so exchanged, and AT&T shall promptly issue and
deliver such new certificate upon receipt of the Certificate, which shall
thereupon be cancelled.
Section 7.05. TAX MATTERS. Each of AT&T, Cox and Cox@Home agrees, unless
otherwise required pursuant to a determination under Section 1313 of the
Internal Revenue Code of 1986, as amended, to treat as income and amount
realized (in the case of Cox and Cox@Home) and deduction (in the case of AT&T),
in each case, for U.S. federal income tax purposes an
7
amount equal to $21.98 multiplied by the number of AT&T Shares issued to
Cox@Home at the Closing, and to not take any position inconsistent therewith.
ARTICLE 8
CONDITIONS TO CLOSING
Section 8.01. CONDITIONS TO OBLIGATIONS OF THE PARTIES. The obligations of
AT&T, Cox and Cox@Home to consummate the Closing are subject to the satisfaction
of the following conditions:
(a) No provision of any applicable law or regulation and no
judgment, injunction, order or decree shall prohibit the consummation of
the Closing.
(b) All actions by or in respect of or filings with any governmental
body, agency, official or authority required to permit the consummation of
the Closing shall have been taken, made or obtained.
(c) The Put Satisfaction Acknowledgment shall have been entered into
by AT&T, Cox and Cox@Home.
(d) There is no action, suit, investigation or proceeding before any
governmental entity (including any court) of competent jurisdiction that
challenges or seeks to prevent, enjoin or alter the transactions
contemplated by this Agreement, including the entering into of the Put
Satisfaction Agreement.
Section 8.02. CONDITIONS TO OBLIGATION OF AT&T. The obligation of AT&T to
consummate the Closing is subject to the satisfaction of the following further
conditions:
(a) (i) Each of Cox and Cox@Home shall have performed in all
material respects all of its obligations hereunder required to be
performed by it on or prior to the Closing Date, (ii) the representations
and warranties of Cox and Cox@Home contained in this Agreement and in any
certificate or other writing delivered by Cox@Home or Cox pursuant hereto
(A) that are qualified by materiality or material adverse effect shall be
true at and as of the Closing Date as if made at and as of such date, and
(B) that are not qualified by materiality or material adverse effect shall
be true in all material respects at and as of the Closing Date as if made
at and as of such date, and (iii) AT&T shall have received a certificate
signed by a duly authorized officer of Cox to the foregoing effect.
Section 8.03. CONDITIONS TO OBLIGATION OF COX AND COX@HOME. The obligation
of Cox and Cox@Home to consummate the Closing is subject to the satisfaction of
the following further conditions:
(a) (i) AT&T shall have performed in all material respects all of
its obligations hereunder required to be performed by it at or prior to
the Closing Date, (ii) the representations and warranties of AT&T
contained in this Agreement and in any certificate or other writing
delivered by AT&T pursuant hereto (A) that are qualified by materiality or
material adverse effect shall be true at and as of the Closing Date as if
made at and as of such date, and (B) that are not qualified by materiality
or material adverse effect shall
8
be true in all material respects at and as of the Closing Date as if made
at and as of such date and (iii) Cox@Home shall have received a
certificate signed by a duly authorized officer of AT&T to the foregoing
effect.
(b) The Registration Rights Agreement shall have been, or
concurrently with the Closing shall be, entered into by AT&T.
(c) AT&T shall have delivered such documentation as will permit
Cox@Home to participate in AT&T's existing offer to exchange outstanding
shares of AT&T common stock for shares of AT&T Wireless Group tracking
stock, as provided for in Amendment No. 4 to the registration statement on
Form S-4 filed by AT&T on April 19, 2001.
ARTICLE 9
SURVIVAL; INDEMNIFICATION
Section 9.01. SURVIVAL. The covenants, agreements, representations and
warranties of the parties hereto contained in this Agreement or in any
certificate or other writing delivered pursuant hereto or in connection herewith
shall survive the Closing until the first anniversary of the Closing Date;
provided that the representations and warranties contained in Sections 3.05 and
4.05 shall survive indefinitely. Notwithstanding the preceding sentence, any
covenant, agreement, representation or warranty in respect of which indemnity
may be sought under this Agreement shall survive until the termination of any
claim for indemnity in respect thereof if notice of the inaccuracy or breach
thereof giving rise to such right of indemnity shall have been given to the
party against whom such indemnity may be sought prior to the time set forth in
the preceding sentence.
Section 9.02. INDEMNIFICATION. (a) Cox hereby indemnifies AT&T and its
Affiliates against and agrees to hold each of them harmless from any and all
damage, loss, liability and expense (including, without limitation, reasonable
expenses of investigation and reasonable attorneys' fees and expenses in
connection with any action, suit or proceeding) ("DAMAGES") incurred or suffered
by AT&T or any Affiliate of AT&T arising out of any misrepresentation or breach
of warranty (each such misrepresentation and breach of warranty a "WARRANTY
BREACH") or breach of covenant or agreement made or to be performed by Cox@Home
or Cox pursuant to this Agreement.
(b) AT&T hereby indemnifies Cox and its Affiliates against and agrees to
hold each of them harmless from any and all Damages incurred or suffered by Cox
or any of its Affiliates arising out of any Warranty Breach or breach of
covenant or agreement made or to be performed by AT&T pursuant to this
Agreement.
Section 9.03. PROCEDURES. The party seeking indemnification under Section
9.02 (the "INDEMNIFIED PARTY") agrees to give prompt notice to the party against
whom indemnity is sought (the "INDEMNIFYING PARTY") of the assertion of any
claim, or the commencement of any suit, action or proceeding in respect of which
indemnity may be sought under such Section and will provide the Indemnifying
Party such information with respect thereto that the Indemnifying Party may
reasonably request. The Indemnifying Party may at the request of the Indemnified
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Party participate in and control the defense (or, in the case of any alleged
Warranty Breach relating to Section 3.05 or 4.05, shall be entitled to assume
and control the defense) of any such suit, action or proceeding at its own
expense. The Indemnifying Party shall not be liable under Section 9.02 for any
settlement effected without its consent of any claim, litigation or proceeding
in respect of which indemnity may be sought hereunder.
ARTICLE 10
TERMINATION
Section 10.01. GROUNDS FOR TERMINATION. This Agreement may be terminated
at any time prior to the Closing:
(a) by mutual written agreement of Cox and AT&T;
(b) by either Cox or AT&T if the Closing shall not have been
consummated on or before June 30, 2001;
(c) by either Cox or AT&T if there shall be any law or regulation
that makes consummation of the transactions contemplated hereby illegal or
otherwise prohibited or if consummation of the transactions contemplated
hereby would violate any nonappealable final order, decree or judgment of
any court or governmental body having competent jurisdiction;
(d) by either Cox or AT&T if there has been a material
misrepresentation or breach of covenant or other obligation hereunder
on the part of AT&T (in the case of termination by Cox) or Cox@Home or
Cox (in the case of termination by AT&T) which misrepresentation or
breach has the effect of making any condition to obligations hereunder
of the party seeking termination incapable of being fulfilled and is
either incurable or, if curable, is not cured within 30 days of the
date notice of such misrepresentation or breach is received by the
other party; or
(e) automatically upon termination of the Letter Agreement (in
whole, or as to Cox) in accordance with its terms.
The party desiring to terminate this Agreement pursuant to clauses 10.01(b),
10.01(c) or 10.01(d) shall give notice of such termination to the other party.
Section 10.02. EFFECT OF TERMINATION. If this Agreement is terminated as
permitted by Section 10.01, such termination shall be without liability of
either party (or any stockholder, director, officer, employee, agent, consultant
or representative of such party) to the other party to this Agreement; PROVIDED
that nothing herein shall relieve any party for willful breach or willful
failure to perform. If this Agreement is terminated as permitted by Section
10.01, other than Section 10.01(e), such termination (1) shall affect only this
Agreement and (2) shall not affect any other arrangements, or agreements among
the parties, including without limitation the parties' rights and obligations
under the Letter Agreement, and, if such termination occurs prior to the
Closing, the Cox Put shall remain effective in accordance with the terms of the
Letter Agreement. The provisions of Sections 11.03, 11.05, 11.06 and 11.07 shall
survive any termination hereof pursuant to Section 10.01.
10
Section 10.03. POST-CLOSING TERMINATION. Any provisions of this Agreement
that, pursuant to Section 9.01 hereof, survive the Closing may be terminated
only after the Closing by mutual written agreement of Cox and AT&T.
ARTICLE 11
MISCELLANEOUS
Section 11.01. NOTICES. All notices, requests and other communications to
any party hereunder shall be in writing (including facsimile transmission) and
shall be given,
if to Cox@Home or Cox, to:
Cox@Home, Inc.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: President
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
Dow, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, PLLC
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
if to AT&T, to:
AT&T Corp.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
Vice President - Law and Secretary
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
Wachtell, Lipton, ▇▇▇▇▇ & ▇▇▇▇
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Esq.
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
All such notices, requests and other communications shall be deemed received on
the date of receipt by the recipient thereof if received prior to 5 p.m. in the
place of receipt and such day is a business day in the place of receipt.
Otherwise, any such notice, request or communication shall
11
be deemed not to have been received until the next succeeding business day in
the place of receipt.
Section 11.02. AMENDMENTS AND WAIVERS. (a) Any provision of this Agreement
may be amended or waived if, but only if, such amendment or waiver is in writing
and is signed, in the case of an amendment, by each party to this Agreement, or
in the case of a waiver, by the party against whom the waiver is to be
effective.
(b) 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 not exclusive of any rights or remedies
provided by law.
Section 11.03. EXPENSES. All costs and expenses incurred in connection
with this Agreement shall be paid by the party incurring such cost or expense.
Section 11.04. SUCCESSORS AND ASSIGNS. The provisions of this Agreement
shall be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns. No party may assign, delegate or otherwise
transfer any of its rights or obligations under this Agreement without the
consent of each other party hereto; provided, however, that Cox@Home may assign,
delegate or otherwise transfer all, but not less than all, of its rights
hereunder to any wholly-owned subsidiary of Cox without the consent of AT&T.
Section 11.05. GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the law of the State of New York, without regard to
the conflicts of law rules of such state.
Section 11.06. JURISDICTION. Except as otherwise expressly provided in
this Agreement, the parties hereto agree that any suit, action or proceeding
seeking to enforce any provision of, or based on any matter arising out of or in
connection with, this Agreement or the transactions contemplated hereby shall be
brought in the United States District Court for the Southern District of New
York or any New York State court sitting in New York City, so long as one of
such courts shall have subject matter jurisdiction over such suit, action or
proceeding, and that any cause of action arising out of this Agreement shall be
deemed to have arisen from a transaction of business in the State of New York,
and each of the parties hereby irrevocably consents to the jurisdiction of such
courts (and of the appropriate appellate courts therefrom) in any such suit,
action or proceeding and irrevocably waives, to the fullest extent permitted by
law, any objection that it may now or hereafter have to the laying of the venue
of any such suit, action or proceeding in any such court or that any such suit,
action or proceeding which is brought in any such court has been brought in an
inconvenient forum. Process in any such suit, action or proceeding may be served
on any party anywhere in the world, whether within or without the jurisdiction
of any such court. Without limiting the foregoing, each party agrees that
service of process on such party as provided in Section 11.01 shall be deemed
effective service of process on such party.
Section 11.07. WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO HEREBY
IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY
12
LEGAL PROCEEDING ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY.
Section 11.08. COUNTERPARTS; THIRD PARTY BENEFICIARIES. This Agreement may
be signed in any number of counterparts, each of which shall be an original,
with the same effect as if the signatures thereto and hereto were upon the same
instrument. This Agreement shall become effective when each party hereto shall
have received a counterpart hereof signed by the other party hereto. No
provision of this Agreement is intended to confer upon any Person other than the
parties hereto any rights or remedies hereunder.
Section 11.09. CAPTIONS. The captions herein are included for convenience
of reference only and shall be ignored in the construction or interpretation
hereof.
13
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective authorized officers as of the day and year
first above written.
AT&T CORP.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Mergers & Acquisitions Vice President
Assistant Treasurer
▇▇▇ COMMUNICATIONS, INC.
By: /s/ ▇▇▇▇ ▇. Major
-----------------------------------
Name: ▇▇▇▇ ▇. Major
Title: Treasurer
COX@HOME, INC.
By: /s/ ▇▇▇▇ ▇. Major
-----------------------------------
Name: ▇▇▇▇ ▇. Major
Title: Treasurer
[Signature page to Share Issuance Agreement]