EX-2.5
______________________________________________________________________________
SHARE EXCHANGE AGREEMENT
among
INTERNATIONAL CABLETEL INCORPORATED,
B/G CO.,
BOOTH AMERICAN COMPANY,
COLUMBIA MANAGEMENT, INC.
and
▇▇▇▇▇▇ ▇. ▇▇▇▇
Dated as of August 30, 1996
______________________________________________________________________________
TABLE OF CONTENTS Page
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ARTICLE I
EXCHANGE OF INTEREST.............................................. 2
Section 1.1 Exchange of B/G's Interest in ECE............... 2
Section 1.2 Consideration................................... 2
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF ICT............................. 3
Section 2.1 Organization Etc................................ 3
Section 2.2 Capitalization.................................. 4
Section 2.3 Authority....................................... 5
Section 2.4 Consents and Approvals; No Violations........... 6
Section 2.5 SEC Reports and Financial Statements............ 7
Section 2.6 Absence of Certain Changes...................... 8
Section 2.7 Litigation...................................... 9
Section 2.8 Tax Free Reorganization Matters................. 9
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF B/G............................. 10
Section 3.1 Organization.................................... 10
Section 3.2 ECE Shares; Interests in ECE.................... 10
Section 3.3 Authority 11
Section 3.4 Consents and Approvals; No Violations........... 11
Section 3.5 Investment Purpose.............................. 12
Section 3.6 Litigation...................................... 12
Section 3.7 Tax Basis....................................... 13
ARTICLE IV
COVENANTS......................................................... 13
Section 4.1 Legends......................................... 13
Section 4.2 Restrictions on Sale............................ 13
Section 4.3 Registration Rights............................. 16
Section 4.4 Registration Expenses........................... 20
Section 4.5 Management Agreement............................ 21
Section 4.6 Covenant Not To Compete.......................... 21
Section 4.7 Non-Disclosure................................... 24
Section 4.8 Contribution Agreement........................... 25
Section 4.9 Mutual Releases.................................. 25
Section 4.10 Further Assurances............................. 27
Section 4.11 Tax Matter Covenants; Expenses.................. 27
Section 4.12 Resignations.................................... 28
ARTICLE V
OBLIGATIONS OF PARTIES AFTER THE DATE HEREOF...................... 28
Section 5.1 Survival........................................ 28
Section 5.2 Indemnification................................. 28
Section 5.3 Claims.......................................... 29
ARTICLE VI
MISCELLANEOUS..................................................... 32
Section 6.1 Amendment....................................... 32
Section 6.2 Extension; Waiver............................... 32
Section 6.3 Notices......................................... 32
Section 6.4 Counterparts.................................... 33
Section 6.5 Entire Agreement; No Third Party Beneficiaries.. 34
Section 6.6 Governing Law................................... 34
Section 6.7 Specific Performance............................ 34
Section 6.8 Assignment...................................... 34
Section 6.9 Severability.................................... 34
Schedule 2.2...................................................... 38
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THIS SHARE EXCHANGE AGREEMENT is made as of the 30th day of August
1996, among INTERNATIONAL CABLETEL INCORPORATED, a Delaware corporation ("ICT"),
B/G CO., an Indiana partnership ("B/G"), BOOTH AMERICAN COMPANY, a Michigan
corporation ("Booth"), COLUMBIA MANAGEMENT, INC., an Indiana corporation
("Columbia"), and ▇▇▇▇▇▇ ▇. ▇▇▇▇, an Indiana resident ("▇▇▇▇").
W I T N E S S E T H:
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WHEREAS, each of ICT and B/G holds an interest in English Cable
Enterprises, Inc., a Delaware corporation ("ECE");
WHEREAS, ICT desires to acquire all of B/G's interest in ECE, and B/G
desires to transfer all of such interest to ICT;
WHEREAS, ICT desires to use shares of its common stock as
consideration for its acquisition of B/G's interest in ECE;
WHEREAS, Booth, Columbia and ▇▇▇▇ are all of the partners (the
"Partners") of B/G, which is being liquidated simultaneously with the execution
of this Agreement; the Partners desire that the shares of ICT's common stock to
be received by B/G pursuant to this Agreement be directly distributed to the
Partners as provided herein; and
WHEREAS, the transaction between the parties hereto is intended to
qualify as a reorganization under Section 368(a)(1)(B) of the Internal Revenue
Code of 1986, as amended (the "Code");
NOW, THEREFORE, in consideration of the foregoing premises, the mutual
covenants herein contained and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
ARTICLE I
EXCHANGE OF INTEREST
Section 1.1 Exchange of B/G's Interest in ECE. Simultaneously with the
---------------------------------
execution hereof and subject to the terms set forth in this Agreement and in
reliance upon the representations and warranties and agreements of ICT, B/G is
assigning, transferring and delivering to ICT, and ICT is acquiring from B/G,
good and valid title free and clear of all interests, liens, charges,
encumbrances, equities, claims, assessments and options of whatever nature, to
9,330 shares of ECE Series B Common Stock, par value $.01 per share (such
shares, which constitute all of the shares of ECE owned, directly or indirectly,
by B/G, are known herein as the "ECE Shares").
Section 1.2 Consideration. As consideration for the transfer of the ECE
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Shares by B/G to ICT, subject to the terms set forth in this Agreement and in
reliance upon the representations, warranties, and agreements of B/G and the
Partners contained herein, ICT is issuing and delivering in the aggregate to the
Partners, and the Partners are acquiring, good and valid title to, 1,415,000
shares (the "Issued Shares") of voting common stock, par value $0.01 per share,
of ICT (the "ICT Common Stock"), allocated among the Partners as follows:
Partner Issued Shares
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Booth 817,488
Columbia 570,953
▇▇▇▇ 26,559
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ARTICLE II
REPRESENTATIONS AND WARRANTIES OF ICT
ICT represents and warrants to B/G and each of the Partners as follows:
Section 2.1 Organization Etc.
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(a) ICT and each of its Subsidiaries (as defined below) is a
corporation or other legal entity duly organized, validly existing and in good
standing under the laws of the jurisdiction of its incorporation or organization
and has all requisite corpo rate power and authority to own, lease and operate
the assets owned and leased by it and to carry on its business as now being
conducted, except where the failure to be so organized, existing or in good
standing or to have such power and authority would not, individually or in the
aggregate, have a Material Adverse Effect (as defined below) on ICT and its
Subsidiaries taken as a whole. As used in this Agreement, the term "Material
Adverse Effect" with respect to an entity (or group of entities taken as a
whole) means such event, change or effect which is materially adverse to the
business, properties, assets, liabilities, results of operations or financial
condition of such entity (or group of entities taken as a whole). ICT and each
of its Subsidiaries is duly qualified or licensed to do business and in good
standing in each jurisdiction in which the property owned, leased or operated by
it or the nature of the business conducted by it makes such qualification or
licensing necessary, except where the failure to be so duly qualified or
licensed and in good standing would not, individually or in the aggregate, have
a Material Adverse Effect on ICT and its Subsidiaries taken as a whole. For
purposes of this Agreement, the term "Subsidiary" when used with respect to any
party, means any entity of which such party (either alone or through or together
with any other Subsidiary) owns, directly or indirectly, 50% or more of the
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stock or other equity interests the holders of which are generally entitled to
vote for the election of the board of directors or other governing body of such
entity.
(b) ICT has heretofore made available to B/G a complete and correct
copy of the charter and by-laws or comparable organizational documents, each as
amended to date, of ICT and each of its Subsidiaries. Such charters, by-laws
and comparable organizational documents are in full force and effect. Neither
ICT nor any of its Subsidiaries is in violation of any provision of its charter,
by-laws or comparable organizational documents, except for such violations that
would not, individually or in the aggregate, have a Material Adverse Effect on
ICT or its Subsidiaries taken as a whole.
Section 2.2 Capitalization. As of the date of this Agreement, the
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authorized capital stock of ICT consists of 100,000,000 shares of ICT Common
Stock, of which 30,591,800 shares are issued and outstanding and 21,902,851
shares are reserved for issuance upon exercise of options or warrants or
conversion of convertible securities, and 2,500,000 shares of preferred stock,
$.01 par value, of which no shares are issued and outstanding.
All the outstanding shares of ICT's capital stock are, and the Issued
Shares will be, when issued and paid for in accordance with the terms hereof,
duly authorized, validly issued, fully paid and nonassessable and not subject to
any preemptive rights of third parties in respect thereto. Except for the
21,902,851 shares of ICT capital stock issuable as referenced above, there are
no existing options, warrants, calls, subscriptions or other rights or other
agreements or binding commitments of any character relating to the issued or
unissued capital stock of ICT or any of its Subsidiaries obligating ICT or any
of its Subsidiaries to issue, transfer or sell or
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cause to be issued, transferred or sold any shares of capital stock of, or other
equity interests in, ICT or any of its Subsidiaries or securities convertible
into or exchange able for such shares or equity interests or obligating ICT or
any of its Subsidiaries to grant, extend or enter into any such option, warrant,
call, subscription or other right, agreement or commitment. As of the date of
this Agreement, there are no outstanding contractual obligations of ICT or any
of its Subsidiaries to repurchase, redeem or otherwise acquire any shares of
capital stock of ICT or any of its Subsidiaries. Each of the outstanding shares
of capital stock of each of ICT's Subsidiaries is duly authorized, validly
issued, fully paid and nonassessable, and such shares owned by ICT are owned
free and clear of any lien, claim, option, charge, security interest, limitation
on voting rights and encumbrance of any kind, except as set forth on Schedule
2.2 hereto or as would not have a Material Adverse Effect on ICT and its
Subsidiaries taken as a whole.
Section 2.3 Authority. ICT has the requisite corporate power and
---------
authority to execute and deliver this Agreement and to consummate the
transactions contemplated hereby. The execution, delivery and performance of
this Agreement by ICT and the consummation by ICT of the transactions
contemplated hereby have been duly authorized by all necessary corporate action
on the part of ICT and no other corporate proceedings on the part of ICT are
necessary to authorize this Agreement or to consummate the transactions
contemplated hereby. This Agreement has been duly executed and delivered by
ICT and, assuming this Agreement constitutes a valid and binding obligation of
B/G, constitutes a valid and binding obligation of ICT, enforceable against ICT
in accordance with its terms.
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Section 2.4 Consents and Approvals; No Violations.
---------------------- -------------
(a) Except for filings, permits, authorizations, notices, consents
and approvals as may be required under, and other applicable requirements of,
the Securities Exchange Act of 1934, as amended (the "Exchange Act"), the
Securities Act of 1933, as amended (the "Securities Act"), or state securities
or blue sky laws, neither the execution, delivery or performance of this
Agreement by ICT nor the consummation by ICT of the transactions contemplated
hereby and compliance by ICT with any of the provisions hereof will (i) conflict
with or result in any breach of any provisions of the certificate of
incorporation or by-laws or comparable organizational documents of ICT or any of
its Subsidiaries, (ii) require any filing with, or permit, authorization,
consent or approval of, any court, arbitral tribunal, administrative agency or
commission or other governmental or other regulatory authority or agency (a
"Governmental Entity") (except where the failure to obtain such permits,
authorizations, consents or approvals or to make such filings would not prevent
or delay consummation of the transactions contemplated by this Agreement in any
material respect and would not, individually or in the aggregate, have a
Material Adverse Effect on ICT and its Subsidiaries taken as a whole), (iii)
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,
amendment, cancellation or acceleration) under, or result in the creation of any
lien or other encumbrance on any property or asset of ICT or any of its
Subsidiaries pursuant to, any of the terms, conditions or provisions of any
note, bond, mortgage, indenture, lease, license, contract, agreement or other
instrument or obligation to which ICT or any of its Subsidiaries is a party or
by which any of them or any of their properties or assets may be bound or (iv)
violate any order,
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writ, injunction, decree, statute, rule or regulation applicable to ICT or any
of its Subsidiaries or by which any property or asset of ICT or any of its
Subsidiaries is bound or affected, except, in the case of clauses (iii) and
(iv), for violations, breaches, defaults or other occurrences which would not
prevent or delay consummation of this Agreement or the transactions contemplated
hereby in any material respect and would not, individually or in the aggregate,
have a Material Adverse Effect on ICT and its Subsidiaries taken as a whole.
(b) Except as disclosed in the ICT SEC Documents (as defined in
Section 2.5), neither ICT nor any of its Subsidiaries is in conflict with, or in
default or violation of, (i) any order, writ, injunction, decree, statute, rule
or regulation of any Governmental Entity applicable to ICT or any of its
Subsidiaries or by which any of them or any of their properties or assets may be
bound or (ii) any note, bond, mortgage, indenture, lease, license, contract,
agreement or other instrument or obligation to which ICT or any of its
Subsidiaries is a party or by which any of them or any of their properties or
assets may be bound or affected, except for any such conflicts, defaults or
violations which have not had and are not likely to have a Material Adverse
Effect on ICT and its Subsidiaries taken as a whole.
Section 2.5 SEC Reports and Financial Statements. ICT has filed with
------------------------------------
the Securities and Exchange Commission (the "SEC"), and has heretofore made
available to B/G true and complete copies of all forms, reports and documents
required to be filed by it since January 1, 1996, under the Exchange Act or the
Securities Act (as such documents have been amended since the time of their
filing, collectively, the "ICT SEC Documents"). The ICT SEC Documents, including
without limitation any financial statements or schedules included therein, at
the time filed, (a) did not contain
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any untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary in order to make the statements
therein, in light of the circumstances under which they were made, not
misleading and (b) complied in all material respects with the applicable
requirements of the Exchange Act or the Securities Act, as the case may be.
The financial statements of ICT included in the ICT SEC Documents complied as to
form in all material respects with applicable accounting requirements and with
the published rules and regulations of the SEC with respect thereto, have been
prepared in accordance with GAAP applied on a consistent basis during the
periods involved (except as may be indicated in the notes thereto or, in the
case of the unaudited statements, as permitted on ICT's Form 10-Q as filed with
the SEC under the Exchange Act) and fairly present (subject, in the case of the
unaudited statements, to normal, recurring audit adjustments which will not be
material in amount or effect) the consolidated financial position of ICT and its
consolidated Subsidiaries as at the dates thereof and the consolidated results
of their operations and cash flows for the periods then ended. Except as
reflected, reserved against or otherwise disclosed in the financial statements
of ICT included in the ICT SEC Documents, neither ICT nor any of its
Subsidiaries has any liabilities or obligations (absolute, accrued, fixed,
contingent or otherwise) material to ICT and its Subsidiaries taken as a whole
that would be required to be reflected on, or reserved against in, a balance
sheet of ICT or the notes thereto, prepared in accordance with generally
accepted accounting principles consistently applied.
Section 2.6 Absence of Certain Changes. Except as disclosed in the
--------------------------
ICT SEC Documents, since December 31, 1995, ICT has conducted its business only
in the ordinary course of such business and there has not been (a) any material
adverse
8
change in ICT and its Subsidiaries taken as a whole, (b) any declaration,
setting aside or payment of any dividend or other distribution with respect to
its capital stock or (c) any material change in its accounting principles,
practices or methods.
Section 2.7 Litigation. There is no suit, claim, action, proceeding
----------
or investigation pending or, to the best knowledge of ICT, threatened, against
ICT or any of its Subsidiaries before any Governmental Entity which,
individually or in the aggregate, is reasonably likely to have a Material
Adverse Effect on the ability of ICT to consummate the transactions contemplated
by this Agreement. Neither ICT nor any of its Subsidiaries is subject to any
outstanding order, writ, injunction or decree which, insofar as can be
reasonably foreseen, individually or in the aggregate, would have a Material
Adverse Effect on the ability of ICT to consummate the transactions contemplated
by this Agreement.
Section 2.8 Tax Free Reorganization Matters. ICT represents and
-------------------------------
warrants as follows:
(a) ICT and ECE have each adopted a plan of reorganization as provided
in the Code and any Treasury Regulations promulgated thereunder (the "Treasury
Regulations") with respect to the intended qualification of the share exchange
as a tax free reorganization within the meaning of Section 368(a)(1)(B) of the
Code;
(b) Immediately after the exchange contemplated by this Agreement, ICT
will own shares of ECE's capital stock possessing at least eighty percent (80%)
of the combined voting power of all the shares of capital stock of ECE entitled
to vote and at least eighty percent (80%) of each class of shares of capital
stock of ECE not entitled to vote;
9
(c) The transactions described in this Agreement have a "bona fide
business purpose" as defined in the Treasury Regulations.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF B/G
B/G and each of the Partners, jointly and severally, represent and
warrant to ICT as follows (excepting the representations set forth in Section
3.5 which are made severally and not jointly):
Section 3.1 Organization.
------------
(a) B/G is a partnership duly organized and validly existing under the
laws of the jurisdiction of its organization and has all requisite partnership
power and authority to own, lease and operate its properties and to carry on
its business as now being conducted, except where the failure to be so
organized, existing or in good standing or to have such power and authority
would not, individually or in the aggregate, have a Material Adverse Effect on
B/G.
(b) B/G has heretofore made available to ICT a complete and correct
copy of its organizational documents, each as amended to date. Such
organizational documents are in full force and effect. B/G is not in violation
of any provision of its organizational documents, except for such violations
that would not, individually or in the aggregate, have a Material Adverse Effect
on B/G.
Section 3.2 ECE Shares; Interests in ECE. The ECE Shares are owned
----------------------------
by B/G free and clear of any lien, claim, option, charge, security interest,
limitation on voting rights and encumbrance of any kind. The ECE Shares
represent all of B/G and the Partners' interest in ECE. Neither B/G nor any of
the Partners has outstanding any
10
grant of an interest in ECE to any third party or is aware that at present any
interest in ECE is held by any third party.
Section 3.3 Authority. B/G and each Partner have the requisite
---------
power and authority to execute and deliver this Agreement and to consummate the
transactions contemplated hereby. The execution, delivery and performance of
this Agreement by B/G and each Partner and the consummation by B/G and each
Partner of the other transactions contemplated hereby have been duly authorized
by all necessary partnership action on the part of B/G and by all necessary
corporate action on the part of Booth and Columbia and no other proceedings on
the part of any of them are necessary to authorize this Agreement or to
consummate the transactions contemplated hereby.
Section 3.4 Consents and Approvals; No Violations. Neither the
-------------------------------------
execution, delivery or performance of this Agreement by B/G or the Partners nor
the consummation by B/G or the Partners of the transactions contemplated hereby
and compliance by B/G or any Partner with any of the provisions hereof will (i)
conflict with or result in any breach of any provision of the respective
organizational documents of B/G or any Partner, (ii) require any filing with, or
permit, authorization, consent or approval of, any Governmental Entity (except
where the failure to obtain such permits, authorizations, consents or approvals
or to make such filings would not prevent or delay consummation of the
transactions contemplated by this Agreement in any material respect), (iii)
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,
amendment, cancellation or acceleration) under, or result in the creation of any
lien or other encumbrance on any property or asset of B/G or such Partner
pursuant to, any of the terms,
11
conditions or provisions of any note, bond, mortgage, indenture, license, lease,
contract, agreement or other instrument or obligation to which B/G or such
Partner is a party or by which B/G or such Partner or any of B/G's or such
Partner's properties or assets may be bound or (iv) violate any order, writ,
injunction, decree, statute, rule or regulation applicable to B/G or such
Partner or by which any property or asset of B/G or such Partner is bound or
affected, except, in the case of clauses (iii) and (iv), for violations,
breaches, defaults or other occurrences which would not prevent or delay
consummation of this Agreement or the transactions contemplated hereby in any
material respect.
Section 3.5 Investment Purpose. Each of the Partners, will acquire
------------------
the Issued Shares for his own account for the purpose of investment and not with
a view to or for sale in connection with any distribution thereof, except
pursuant to an effective registration statement under the Securities Act and all
applicable state securities laws or pursuant to an exemption from the Securities
Act and all applicable state securities laws.
Section 3.6 Litigation. There is no suit, claim, action, proceeding
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or investigation pending or, to the best knowledge of B/G or the Partners,
threatened, against B/G or any Partner or any of its Subsidiaries before any
Governmental Entity which, individually or in the aggregate, is reasonably
likely to have a Material Adverse Effect on the ability of B/G or any Partner to
consummate the transactions contemplated by this Agreement. None of B/G, its
Subsidiaries or any Partner is subject to any outstanding order, writ,
injunction or decree which, insofar as can be reasonably foreseen, individually
or in the aggregate, would have a Material Adverse Effect on the
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ability of B/G or the Partners to consummate the transactions contemplated by
this Agreement.
Section 3.7 Tax Basis. The ECE Shares owned by B/G have a tax basis
---------
for federal income tax purposes of $5,832,324.
ARTICLE IV
COVENANTS
Section 4.1 Legends. The Certificates for the Issued Shares shall be
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endorsed with the following legend:
The Shares represented by this Certificate are transferable only upon
compliance with the provisions of the Share Exchange Agreement, dated as of
August 30, 1996, among the Corporation B/G, Co., Booth American Company,
Columbia Management, Inc. and ▇▇▇▇▇▇ ▇. ▇▇▇▇. A copy of such Agreement is
on file at the offices of the Corporation.
The Shares represented by this Certificate have not been registered under
the Securities Act of 1933. The Shares have been acquired for investment
and may not be sold, transferred, pledged or assigned in the absence of an
effective registration statement for these shares under the Securities Act
of 1933, or an exemption from registration under said Act.
Upon request of ICT and delivery to ICT of the legended Certificates, ICT
will from time to time issue substitute Certificates representing Issued Shares
which will not contain any portion of the above-legend which is not then
applicable.
Section 4.2 Restrictions on Sale.
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(A) Notwithstanding anything to the contrary set forth herein, for a period
of two years from the date of this Agreement (the "Lock-Up Period"), none of the
Partners shall be permitted to sell, transfer, pledge or assign (a "transfer")
any of the Issued Shares (including any securities of ICT issued or issuable by
way of a dividend or stock split or in connection with or after a combination of
shares, recapitalization,
13
merger, consolidation or other reorganization or otherwise of ICT (such shares,
the "Related Shares")) except as set forth in this Section 4.2 as follows:
(a) at any time any of each Partner's Issued Shares may be transferred
to any of the other Partners;
(b) twenty-five percent (25.0%) of each Partner's Issued Shares may be
transferred following the six month anniversary of the date hereof.
Furthermore, any Issued Shares transferred pursuant to this subsection (b) shall
no longer be subject to the provisions of this Section 4.2 after any such
transfer;
(c) Columbia may pledge in a bona fide transaction any of its Issued
Shares to European Cable Capital Partners, L.P., as collateral in connection
with an outstanding Amended and Restated Promissory Note and Security Agreement
dated as of June 27, 1996, or any replacement thereof, in substitution for ECE
Shares and the partnership interest of Columbia in B/G which are being released
as collateral simultaneously with the execution of this Agreement, and the
pledgee thereof shall, subject to any restrictions under applicable law, be
entitled to effect transfer of Issued Shares to itself, an affiliate or, with
the consent of ICT, a third party in connection with any realization on such
collateral, provided that the pledgee thereof or, if applicable, such affiliate
or third party, shall sign an agreement, in form reasonably satisfactory to ICT,
agreeing to the terms of the Lock-Up set forth in this Agreement; and
(d) Booth may transfer up to 90,000 Issued Shares to ▇▇▇▇▇ ▇. ▇▇▇▇▇ ▇▇
at any time simultaneously with or after the execution of this Agreement,
provided that ▇▇▇▇▇ ▇. ▇▇▇▇▇ ▇▇ shall sign an agreement, in form reasonably
satisfactory to ICT, agreeing to the terms of the Lock-Up set forth in this
Agreement.
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All Issued Shares may be transferred without restriction after the Lock-Up
Period has expired, subject to any restrictions under applicable law.
(B) Notwithstanding anything in this Agreement to the contrary, all Issued
Shares may be transferred without restriction in the event of an ICT Change of
Control, subject to any restrictions under applicable law. An ICT Change of
Control shall mean (i) the sale, lease or transfer of all or substantially all
of the assets of ICT to any "person" or "group" (within the meaning of Sections
13(d)(3) and 14(d)(2) of the Exchange Act or any successor provision to either
of the foregoing, including any group acting for the purpose of acquiring,
holding or disposing of securities within the meaning of Rule 13d-5(b)(1) under
the Exchange Act) (other than any Permitted Holder), (ii) the liquidation or
dissolution of ICT, (iii) any "person" or "group" (within the meaning of
Sections 13(d) and 14(d)(2) of the Exchange Act or any successor provision to
either of the foregoing, including any group acting for the purpose of
acquiring, holding or disposing of securities within the meaning of Rule 13d-
5(b)(1) under the Exchange Act), other than any Permitted Holder, becomes the
"beneficial owner" (as defined in Rule 13d-3 under the Exchange Act) of more
than 35% of the total voting power of all classes of the voting stock of ICT
and/or warrants or options to acquire such voting stock, calculated on a fully
diluted basis, or (iv) during any period of six consecutive months, individuals
who at the beginning of such period constituted ICT's Board of Directors
(together with any new directors whose election or appointment by such board or
whose nomination for election by the shareholders of ICT was approved by a vote
of a majority of the directors then still in office who were either directors at
the beginning of such period or whose election or nomination
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for election was previously so approved) cease for any reason to constitute a
majority of the ICT's Board of Directors then in office.
"Permitted Designee" shall mean (i) a spouse or a child of a Permitted
Holder, (ii) trusts for the benefit of a Permitted Holder or a spouse or a child
of a Permitted Holder, his estate, heirs, executor, administrator, committee or
other personal representative or (iii) any person so long as a Permitted Holder
owns at least 50% of the voting power of all classes of the voting stock of such
person.
"Permitted Holders" shall mean ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, J. ▇▇▇▇▇▇▇ ▇▇▇▇▇ and
their Permitted Designees.
Section 4.3 Registration Rights. (a) ICT shall use its best efforts to
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cause to become effective not later than 120 days after the date hereof, a
registration statement on Form S-3 (or if such form is not available to ICT for
any reason, such other form as ICT may use) (an "S-3 Registration Statement"),
in compliance with the Securities Act with respect to, and shall take all other
necessary and appropriate actions which can be taken by it in order to effect,
the registration of the Issued Shares (including any Related Shares), and to
maintain such registration for as long as any of the Issued Shares (including
any Related Shares) is owned by any of the Partners.
(b) So long as any of the them owns any Issued Shares, each of B/G and the
Partners, as the case may be shall, in connection with any registration of ICT's
securities, upon the written request of the underwriters managing any
underwritten offering of ICT's securities, agree in writing not to effect any
sale, disposition or distribution of any of the Issued Shares (including any
Related Shares) (other than any such shares to be included in such registration)
without the prior written consent of
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the underwriters, for a period of time specified by such underwriters not to
exceed one hundred and eighty (180) days from the effective date of such
registration.
(c) In the case of each registration effected by ICT pursuant to this
Agreement under the federal securities laws, ICT agrees to indemnify and hold
harmless, to the full extent permitted by law, B/G or the Partners, as the case
may be (each, a "Holder"), and such Holder's officers, directors, agents and
employees against all losses, claims, damages, liabilities and expenses arising
out of or based upon any untrue or alleged untrue statement of a material fact
contained in the registration statement under which securities of ICT owned by
such Holder were registered under the Securities Act, any prospectus or
preliminary prospectus or in any amendment or supplement thereto or any omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein (in the case of a
prospectus, in the light of the circumstances under which they were made) not
misleading, except insofar as the same arise out of, are based upon or are
contained in any information furnished in writing to ICT by such Holder
expressly for use therein or by the Holder's failure to deliver a copy of the
applicable registration statement or final prospectus after ICT has furnished
such Holder with a sufficient number of copies of the same.
In connection with any registration statement in which a Holder is
participating, such Holder shall furnish to ICT in writing such information and
affidavits as ICT reasonably requests for use in connection with any
registration statement or prospectus and agrees to indemnify and hold harmless,
to the full extent permitted by law, ICT, its directors, officers, agents,
employees against any losses, claims, damages, liabilities and expenses arising
out of or based upon any untrue or
17
alleged untrue statement of a material fact contained in the registration
statement under which securities of ICT owned by such Holder are registered
under the Securities Act, any prospectus or preliminary prospectus or in any
amendment or supplement thereto or any omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein (in the case of a prospectus, in the light of the
circumstances under which they were made) not misleading, to the extent, but
only to the extent, that such untrue or alleged untrue statement or omission or
alleged omission is contained in or should have been contained in any
information or affidavit so furnished in writing by such Holder to ICT
specifically for inclusion in such registration statement or prospectus;
provided that (i) such Holder will not be required to make any representations
--------
or warranties except those which relate solely to such Holder and his intended
method of distribution and (ii) the liability of such Holder pursuant to this
provision will be limited to liability arising from misstatements or omissions
regarding such Holder and his intended method of distribution. In no event
shall the liability of any Holder, hereunder be greater in an amount than the
dollar amount of the proceeds received by such holder upon the sale of the
securities of the Registrant giving rise to such indemnification obligation.
If for any reason the indemnification provided for in the preceding
paragraphs of this Section 4.3 is unavailable to an indemnified party or is
insufficient to hold it harmless as contemplated by the preceding paragraphs,
then the indemnifying party, in lieu of indemnifying such indemnified party,
shall contribute to the amount paid or payable by such indemnified party as a
result of such loss, claim, damage, liability or expense in such proportion as
is appropriate to reflect not only the
18
relative benefits received by the indemnified party and the indemnifying party,
but also the relative fault of the indemnified party and the indemnifying party
in connection with the actions which resulted in such loss, claim, damage,
liability or expense, as well as any other relevant equitable considerations.
The relative fault of such indemnifying party and indemnified party shall be
determined by reference to, among other things, whether any action in question,
including any untrue or alleged untrue statement of a material fact or omission
or alleged omission to state a material fact, has been made by, or relates to
information supplied by, such indemnifying party or indemnified party, and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such action. The amount paid or payable by a party as a
result of the losses, claims, damages, liabilities and expenses referred to
above shall be deemed to including any legal or other fees or expenses
reasonably incurred by such party in connection with any investigation or
proceeding.
The parties hereto agree that it would not be just and equitable if
contribution pursuant to this Section 4.3 were determined by pro rata allocation
or by any other method of allocation which does not take into account the
equitable considerations referred to in the immediately preceding paragraph. No
Person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Securities Act) shall be entitled to contribution from any Person
who was not guilty of such fraudulent misrepresentation. No Holder shall be
required to contribute in an amount greater than the dollar amount of proceeds
received by such Holder with respect to the sale of securities of the Registrant
held by such Holder.
(d) In connection with the S-3 Registration Statement, ICT shall (i)
furnish to a Holder such number of copies of the S-3 Registration Statement
(including
19
exhibits), each amendment and supplement thereto, all documents incorporated by
reference therein, the prospectus included in the S-3 Registration Statement
(including each preliminary prospectus) and such other documents as such Holder
may reasonably request in order to facilitate the disposition of the Issued
Shares owned by such Holder; (ii) immediately notify such Holder, at any time
when a prospectus relating to the ICT Common Stock to be sold is required to be
delivered under the Securities Act, when it becomes aware of the happening of
any event as a result of which the prospectus included in such registration
statement (as then in effect) contains an untrue statement of a material fact or
omits to state a material fact required to be stated therein or necessary to
make the statements therein not misleading and, as promptly as practicable
thereafter, prepare in sufficient quantities (and make available to such Holder)
a supplement or amendment to such prospectus so that, as thereafter delivered to
the purchasers of such shares of ICT Common Stock, such prospectus will not
contain an untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading; and (iii) use its best efforts to cause all such ICT Common Stock to
be listed on a national securities exchange or designated for trading on Nasdaq
to the same extent ICT's other outstanding common stock is so listed or
designated.
Section 4.4 Registration Expenses. (a) All expenses incident to the
---------------------
performance of or compliance with the registration provisions of this Agreement
by ICT, including, without limitation, all registration and filing fees,
National Association of Securities Dealers' fees, printing and engraving
expenses, messenger and delivery expenses, and fees and disbursements of counsel
for ICT and the independent
20
certifies public accountants for ICT, and other persons retained by ICT (all
such expenses being herein called "Registration Expenses"), will be borne by ICT
and ICT will, in any event, pay its internal expenses of its officers and
employees performing legal or accounting duties, the expense of any annual
audit, the expense of any liability insurance and the expenses and fees for
listing the securities to be registered on each securities exchange on which
similar securities issued by ICT are then listed or designating the securities
to be registered on Nasdaq if similar securities issued by ICT are then
designated.
Section 4.5 Management Agreement. The Management Agreement between ECE
--------------------
Management Company, a partnership organized under the laws of Indiana
("Management"), and ECE shall be terminated as of the date hereof. ECE shall
pay on a prorated basis to Management any management fees earned by Management
to the date hereof, and any expenses reimbursable to Manager under the
Management Agreement to the date hereof.
Section 4.6 Covenant Not to Compete. B/G and each of the Partners agree
-----------------------
that until the expiration of a period of two (2) years commencing on the date
hereof, neither it nor any of its affiliates will engage, directly or
indirectly, as a partner, co-venturer, stockholder, or other equity investor, in
any venture, enterprise, consortium, corporation or organization which engages
in, as one of its principal businesses, building, owning, or operating a
telecommunications network in the Territory (as defined below) or providing
telecommunications services in the Territory (a "Competing Business"), without
the prior consent of ICT, provided, however, that nothing contained in this
-------- -------
Agreement shall prohibit any of them from (i) owning or investing in the stock
or securities of any such Competing Business so long as such ownership or
21
investment shall constitute less than five percent (5%) of the outstanding
capital stock of any such Competing Business and so long as none of them is
represented on the board of, or has an active role in the business activities
of, or strategic planning for, such Competing Business; (ii) engaging in
television and radio programming and broadcasting activities in the Territory;
or (iii) directly or indirectly providing telecommunications (including
telephony) services to or for facilities located in the Territory owned or
operated by any one or more accounts served by any such Competing Business, so
long as the provision by such Competing Business of such services to or for any
such account in the Territory is incidental to the overall business relationship
between the Competing Business and such account. As used in the preceding
sentence, the provision of telecommunications services to an account by a
Competing Business in the Territory shall be deemed incidental to the overall
business relationship between the Competing Business and such account (A) if the
Competing Business shall provide or contract to provide telecommunications
services to such accounts both within and outside the Territory and (B) if (as
represented by the account to the Competing Business) the total expenses
incurred by the account (and its affiliates) to all providers for
telecommunication services allocable to locations within the Territory during
the period commencing one (1) year prior to the date on which the Competing
Business first provided such service to the account in the Territory ("Base
Year") constitute less than twenty percent (20%) of the total telecommunications
expenses incurred by the account (and its affiliates) to all providers with
respect to all facilities owned or operated by the account (and its affiliates)
within the United Kingdom during the Base Year. However, if the account shall
not provide to the Competing Business (after due inquiry by the Competing
22
Business) the information described in the preceding sentence, the provision of
such service by a Competing Business in the Territory shall be deemed incidental
to the overall business relationship between the Competing Business and such
account (A) if the Competing Business shall provide or contract to provide
telecommunications services to such accounts both within and outside the
Territory and (B) if the Competing Business reasonably concludes in good faith,
based on available information relating to facilities and operations of the
account (and its affiliates) in the United Kingdom, that the estimated total
expenses incurred by the account (and its affiliates) to all providers for
telecommunication services allocable to locations within the Territory during
the Base Year constitutes less than twenty percent (20%) of the total estimated
telecommunications expense incurred by the account (and its affiliates) to all
providers with respect to all facilities owned or operated by the account (and
its affiliates) within the United Kingdom during the Base Year.
Notwithstanding anything to the contrary contained in this Agreement, B/G
and each of the Partners agree that until two (2) years from the date hereof,
neither they nor any of their affiliates will provide, directly or indirectly,
any support or services directly to any venture, enterprise, consortium,
corporation or organization which are directly related to or in furtherance of
the efforts of such venture, enterprise, consortium, corporation or organization
to obtain a license to engage in a Competing Business within the Territory other
than as permitted in any of (i) through (iii) above; provided that none of them
shall be restricted from providing support or services (i) directly to any of
the investors or participants in such ventures, enterprises, consortia,
corporation or organizations for a purpose unrelated thereto or (ii) which are
not
23
directly related to or in furtherance of efforts to obtain such a license and
not otherwise prohibited by the terms of this Agreement.
The provisions of this Section 4.6 shall not be applicable from and after
the date of liquidation, dissolution or termination of ECE or in the events of a
change of control of ICT as defined in Section 4.2. "Territory" shall mean
those portions of ▇▇▇▇▇/▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇ and East Hertfordshire and Broxbourne where affiliates of ECE are
licensed to provide telecommunications services as provided in the licenses
issued by the United Kingdom's Department of Trade and Industry dated August 24,
1990, December 8, 1990, January 9, 1991 and January 11, 1991, respectively.
Section 4.7 Non-Disclosure. (a) Each of B/G and the Partners shall (i)
--------------
take reasonable steps to prevent disclosure to unaffiliated third parties of any
proprietary information relating to ICT, ECE or any of their business operations
in the United Kingdom; (ii) use at least the same degree of care to avoid
disclosure of such information as it uses with respect to its own proprietary
information and (iii) disclose such information to its Affiliates, directors,
officers, employees and agents only on a need to know basis.
(b) Each of B/G and the Partners shall have no obligation with respect to
information which (i) is already known to it at the time of disclosure; (ii) is,
at the time of that disclosure, or comes thereafter, in the public domain other
than pursuant to a breach by it; (iii) is rightfully received from a third party
without a restriction on further disclosure and without breach of the provisions
of this Section 4.7; (iv) is independently developed by it; or (v) is disclosed
by ECE or ICT, as the case may be, without restriction.
24
(c) Each of B/G and the Partners agrees that (i) confidential information
shall remain the property of the disclosing party, and nothing herein shall be
deemed as granting to B/G or the Partners any express or implied license under
any patent, copyright or other statutory right of ICT or ECE; (ii) all
information transmitted in written or tangible form shall be promptly returned
to the disclosing party or destroyed upon written request at the option of the
disclosing party; (iii) without the prior consent of ICT or ECE, as the case may
be, neither B/G nor the Partners will disclose to any third party the fact that
proprietary information has been made available to it; and (iv) without the
prior consent of ICT, it shall not disclose to any third party any facts with
respect to ECE or ICT except where such disclosure is required by law or by a
governmental or administrative agency or body.
Section 4.8 Contribution Agreement. Upon the execution hereof, the
----------------------
Contribution Agreement, dated as of October 19, 1993, by and among ICT, Booth
and Columbia (including all amendments and modifications thereto) (the
"Contribution Agreement") shall be terminated.
Section 4.9 Mutual Releases. (a) Except as to the matters referenced in
---------------
the last sentence of Section 4.5 above, each of the Partners, B/G and Management
hereby forever releases and discharges each of ECE and ICT, and all of its
shareholders, employees, officers, directors, agents, affiliates, successors
and assigns, from any claims or counterclaims he or it has or might assert,
together with any and all obligations, liabilities, actions, causes of action,
claims and demands whatsoever, whether known or unknown, whether suspected or
unsuspected, whether or not founded in fact or in law and of and from any and
all manner of suits, debts, dues, sums of money, accounts, bills, covenants,
controversies, agreements, promises,
25
damages, claims and demands whatsoever, in law or in equity, which any Partner,
B/G or Management has or may have had or which any Partner, B/G, Management or
their shareholders, employees, officers, directors, agents, affiliates, family
members, heirs, successors and assigns hereafter can, shall or may have for any
reason, cause or thing whatsoever related to the Contribution Agreement and the
Management Agreement, the obligations thereunder, and any other matter involving
the formation, management, or operation of ECE with respect to all periods
prior to the date of this Agreement.
(b) Each of ECE and ICT hereby forever releases and discharges each of the
Partners, B/G and Management, and all of their shareholders, partners,
employees, officers, directors, agents, affiliates, family members, heirs,
successors and assigns, from any claims or counterclaims it has or might assert,
together with any and all obligations, liabilities, actions, causes of action,
claims and demands whatsoever, whether known or unknown, whether suspected or
unsuspected, whether or not founded in fact or in law, and of and from any and
all manner of suits, debts, dues, sums of money, accounts, bills, covenants,
controversies, agreements, promises, damages, claims and demands whatsoever, in
law or in equity, which ECE or ICT has or may have had or which ECE or ICT or
its shareholders, employees, officers, directors, agents, affiliates, successors
and assigns hereafter can, shall or may have for any reason, cause or thing
whatsoever related to the Contribution Agreement and the Management Agreement,
the obligations thereunder, and any other matter involving the formation,
management, or operation of ECE with respect to all periods prior to the date of
this Agreement.
26
(c) Each of the Partners, B/G, Management, ECE and ICT does not admit any
liability by reason of the mutual releases granted herein, but to the contrary
denies any such liability.
(d) Each of the parties hereto is executing this Agreement and granting the
mutual releases set forth in this Section 4.9 upon the advice and with the
consent of his or its counsel.
Section 4.10 Further Assurances. The parties hereto shall execute and
------------------
deliver such further instruments of conveyance, transfer, assignment and other
similar documents and shall take such other actions as each of them may
reasonably request of the other in order to effectuate the purposes of this
Agreement and to carry out the terms hereof.
Section 4.11 Tax Matter Covenants; Expenses. (a) ICT agrees, to the
------------------------------
extent contemplated for a tax-free reorganization under Section 368(a)(1)(B) of
the Code, (i) to retain ownership of at least 51.0% of ECE's capital stock for a
sufficient period of time, (ii) not to do anything which would result in a
failure by ICT or ECE to meet the "continuity of interest" requirements with
respect to the reorganization pursuant to the Treasury Regulations, (iii) to
cause ECE to maintain the same line of business for a sufficient period of time
and to comply with the "continuity of business enterprise" requirements with
respect to the reorganization under the Treasury Regulations, (iv) to file all
necessary or appropriate tax returns and other documents with the Internal
Revenue Service (the "IRS"), (v) to maintain all necessary financial, accounting
and other records with respect to the reorganization required under the Treasury
Regulations, (vi) to take all other necessary or appropriate actions, and (vii)
to cause ECE to take all such actions described in (i) through (vi) above;
provided, however,
27
that ICT may take any action(s) or cause ECE to take any action(s) listed in (i)
through (vii) of this Section 4.11, if ICT obtains an opinion of its counsel
that such action(s) should not adversely affect the status of the exchange of
stock contemplated herein as a tax-free reorganization under Section
368(a)(1)(B) of the Code. B/G and each Partner agrees, so that the exchange of
stock contemplated herein qualifies as a tax-free reorganization under Section
368(a)(1)(B) of the Code, (i) to file all necessary or appropriate tax returns
and other documents with the IRS, (ii) to maintain all necessary accounting and
financial records, and (iii) to take all other necessary or appropriate actions.
(b) ICT, ECE, B/G and each Partner will pay their respective expenses, if
any, incurred in connection with the exchange of stock contemplated herein.
Section 4.12 Resignations. Simultaneously herewith, B/G has caused ▇▇▇▇
------------
and ▇▇▇▇▇ ▇. ▇▇▇▇▇ ▇▇ to deliver their resignations as a director and, as to
▇▇▇▇, as an officer, of ECE.
ARTICLE V
OBLIGATIONS OF PARTIES AFTER THE DATE HEREOF
Section 5.1 Survival. The representations and warranties and covenants of
--------
the parties contained in this Agreement shall survive the execution and delivery
of this Agreement.
Section 5.2 Indemnification.
---------------
Subject to the other provisions of this Article V, from and after the date
hereof:
(a) ICT shall indemnify and hold harmless each of the Partners and B/G and
its affiliates, and each of their affiliates' and their respective affiliates'
directors, officers, employees, representatives and agents, and each of the
heirs, executors,
28
successors and assigns of any of the foregoing (collectively, the
"Representatives") from and against any costs or expenses (including reasonable
attorneys' fees), judgments, fines, losses, claims, damages and amounts paid in
settlement (collectively, "Damages") to the extent they are the result of any
breach of any representation or warranty made by ICT under this Agreement.
(b) Each of the Partners and B/G shall indemnify and hold harmless ICT and
its Representatives from and against any Damages to the extent they arise out of
and are the result of any breach of any representation or warranty made by B/G
or the Partners under this Agreement. ICT and its Representatives, on the one
hand, and B/G and the Partners and their Representatives, on the other hand, as
the case may be, are referred to herein as the "Indemnified Parties."
(c) None of ICT, B/G or the Partners, as the case may be, shall be
obligated to indemnify a party pursuant to this Article V for any Damages
pursuant to Sections 5.2(a) and 5.2(b) unless ICT, B/G or a Partner, as the case
may be, shall have received written notice of such Damages in the case of a
breach of a representation and warranty, within two years from the date hereof;
provided, however, in the event that an Indemnified Party (x) receives notice of
-------- -------
any matter which provides a reasonable basis for a claim to indemnification
hereunder and within the applicable period provided in this Section 5.2(c) and
(y) provides notice to the Indemnifying Party (as defined hereinafter) of the
receipt of such notice, then such Indemnified Party shall be entitled to
indemnification with respect to such claim until its final resolution.
Section 5.3 Claims.
------
(a) If an Indemnified Party intends to seek indemnification pursuant to
this Article V, such Indemnified Party shall promptly notify ICT, B/G or the
Partner, as the
29
case may be (the "Indemnifying Party"), in writing of such claim describing such
claim in reasonable detail; provided, however, that the failure to provide such
-------- -------
notice shall not affect the obligations of the Indemnifying Party unless it is
actually prejudiced thereby, subject, however, to the time periods specified in
Section 5.1 hereof. In the event that such claim involves a claim by a third
party against the Indemnified Party, the Indemnifying Party shall have 30 days
after receipt of such notice to decide whether it will undertake, conduct and
control, through counsel of its own choosing and at its own expense, the
settlement or defense thereof, and if it so decides, the Indemnified Party shall
cooperate with it in connection therewith; provided, however, that the
-------- -------
Indemnified Party may participate in such settlement or defense through counsel
chosen by it; and provided, further, however, that the fees and expenses of such
-------- ------- -------
counsel shall be borne by the Indemnified Party. The decision by an Indemnifying
Party to undertake the defense or settlement of such claim shall be conclusive
evidence of its concurrence that any Indemnified Party involved in such claim is
entitled to indemnification hereunder with respect to such claim.
Notwithstanding anything in this Section 5.3(a) to the contrary, the
Indemnifying Party may, without the consent of the Indemnified Party, settle or
compromise any action or consent to the entry of any judgment which includes as
an unconditional term thereof the delivery by the claimant or plaintiff to the
Indemnified Party of a duly executed written release of the Indemnified Party
from all liability in respect of such action, which release shall be reasonably
satisfactory in form and substance to counsel for the Indemnified Party;
provided, however, that the Indemnifying Party shall not, without the written
-------- -------
consent of the Indemnified Party, settle or compromise any action in any manner
that, in the reasonable judgment of the Indemnified Party or its counsel, would
materially and ad-
30
versely affect the Indemnified Party, other than as a result of money damages or
other money payments. If the Indemnifying Party does not notify the Indemnified
Party within 30 days after the receipt of the Indemnified Party's notice of a
claim of indemnity hereunder that it elects to undertake the defense thereof,
the Indemnified Party shall have the right to contest, settle or compromise the
claim but shall not thereby waive any right to indemnity therefor pursuant to
this Agreement. So long as the Indemnifying Party is contesting any such claim
in good faith, the Indemnified Party shall not pay or settle any such claim.
Notwithstanding the foregoing, the Indemnified Party shall have the right to pay
or settle any such claim; provided, however, that so long as the Indemnifying
-------- -------
Party is contesting such claim in good faith, any such settlement shall include
as an unconditional term thereof the delivery by the claimant or plaintiff to
the Indemnifying Party of a duly executed written release of the Indemnifying
Party from all liability in respect of such action; and provided, further,
-------- -------
however, that in such event it shall waive any right to indemnity therefor by
-------
the Indemnifying Party; and provided, further, however, that the Indemnified
-------- ------- -------
Party shall provide the Indemnifying Party reasonable advance notice of any
proposed settlement or payment and shall not pay or settle any claim if the
Indemnifying Party shall reasonably object.
(b) The Indemnified Party shall cooperate fully in all aspects of any
investigation, defense, pre-trial activities, trial, compromise, settlement or
discharge of any claim in respect of which indemnity is sought pursuant to
Article V, including, but not limited to, by providing the other party with
reasonable access to employees and officers (including as witnesses) and other
information.
31
ARTICLE VI
MISCELLANEOUS
Section 6.1 Amendment. This Agreement may not be amended by the
---------
parties hereto except by an instrument in writing signed on behalf of each of
the parties hereto.
Section 6.2 Extension; Waiver. At any time during the term of this
-----------------
Agreement or during the time any provision survives the date hereof as provided
herein, the parties hereto, may to the extent legally allowed, (a) extend the
time for the performance of any of the obligations or other acts of the other
parties hereto, (b) waive any inaccuracies in the representations and warranties
contained herein or in any document delivered pursuant hereto and (c) waive
compliance with any of the agreements or conditions contained here. Any
agreement on the part of a party hereto to any such extension or waiver shall be
valid only if set forth in a written instrument signed on behalf of such party.
Section 6.3 Notices. All consents, notices and other communications
-------
hereunder shall be in writing and shall be deemed given if delivered personally,
telecopied (which is confirmed) or mailed by registered or certified mail
(return receipt requested) to the parties at the following addresses or
telephone numbers (or at such other address for a party as shall be specified by
like notice):
(a) if to ICT or ECE, to it c/o:
International CableTel Incorporated
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
32
with a copy to:
Skadden, Arps, Slate, ▇▇▇▇▇▇▇
& ▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇.▇. ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
and
(b) if to B/G or a Partner, to it:
c/o Columbia Management, Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇
Telecopy: (▇▇▇)▇▇▇-▇▇▇▇
with a copy to:
Bose ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Telecopy: (▇▇▇)▇▇▇-▇▇▇▇
and to:
Honigman, Miller, ▇▇▇▇▇▇▇▇ & ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇
Telecopy: (▇▇▇)▇▇▇-▇▇▇▇
Section 6.4 Counterparts. This Agreement may be executed in two or
------------
more counterparts, all of which shall be considered one and the same agreement
and shall become effective when two or more counterparts have been signed by
each of the parties and delivered to the other parties, it being understood that
all parties need not sign the same counterpart.
33
Section 6.5 Entire Agreement; No Third Party Beneficiaries. This
----------------------------------------------
Agreement, including all Schedules hereto, (a) constitute the entire agreement
and supersede all prior agreements and understandings, both written and oral,
among the parties with respect to the subject matter hereof and thereof, and (b)
except as expressly provided herein are not intended to confer upon any person
other than the parties hereto and thereto any rights or remedies hereunder or
thereunder.
Section 6.6 Governing Law. This Agreement shall be governed and
-------------
construed in accordance with the laws of the State of New York applicable to
contracts made, executed, delivered and performed wholly within the State of New
York, without regard to any applicable conflicts of law.
Section 6.7 Specific Performance. The parties hereto agree that if
--------------------
any of the provisions of this Agreement were not performed in accordance with
their specific terms or were otherwise breached, irreparable damage would occur,
no adequate remedy at law would exist and damages would be difficult to
determine, and that the parties shall be entitled to specific performance of the
terms hereof, in addition to any other remedy at law or equity.
Section 6.8 Assignment. Neither this Agreement nor any of the
----------
rights, interests or obligations hereunder shall be assigned by any of the
parties hereto (whether by operation of law or otherwise) without the prior
written consent of the other parties. This Agreement will be binding upon,
inure to the benefit of and be enforceable by the parties and their respective
successors and assigns.
Section 6.9 Severability. Any term or provision of this Agreement
------------
which is invalid or unenforceable in any jurisdiction shall, as to that
jurisdiction, be ineffective to the extent of such invalidity or
unenforceability without rendering invalid or
34
unenforceable the remaining terms and provisions of this Agreement or affecting
the validity or enforceability of any of the terms or provisions of this
Agreement in any other jurisdiction. If any provision of this Agreement is so
broad as to be unenforceable, the provision shall be interpreted to be only so
broad as is enforceable.
35
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be signed by their respective officers thereunto duly authorized, or
individuals, as appropriate as of the date first written above.
INTERNATIONAL CABLETEL INCORPORATED
By:_______________________________
Name:
Title:
B/G CO.
By:_______________________________
Name:
Title:
BOOTH AMERICAN COMPANY
By:_______________________________
Name:
Title:
COLUMBIA MANAGEMENT, INC.
By:_______________________________
Name:
Title:
_________________________________
▇▇▇▇▇▇ ▇. ▇▇▇▇
36
English Cable Enterprises, Inc. hereby acknowledges the provisions of
Sections 4.5 and 4.9:
ENGLISH CABLE ENTERPRISES, INC.
By:________________________________________
Name:
Title:
ECE Management Company hereby acknowledges and agrees to the
provisions of Sections 4.5 and 4.9:
ECE MANAGEMENT COMPANY
By:_______________________________________
Name:
Title:
By:_______________________________
Name:
Title:
37
Schedule 2.2
Encumbrances on Capital Stock
-----------------------------
[None.]
38