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EXHIBIT 99.3
INVESTORS AGREEMENT
THIS INVESTORS AGREEMENT (this "AGREEMENT") is made as of
September 13, 1999, between Allegiance Telecom, Inc., a Delaware corporation
(the "COMPANY") and Vulcan Ventures Incorporated, a Washington corporation
("INVESTOR"). Capitalized terms used herein are defined in paragraph 7 hereof.
Investor has agreed to purchase shares of the Company's Common
Stock pursuant to a Common Stock Purchase and Option Agreement among Investor,
the Company, Madison Dearborn Capital Partners II, L.P., Frontenac VII Limited
Partnership, Frontenac Masters VII Limited Partnership, Battery Venture Partners
IV, L.P. and Battery Investment Partners IV, LLC, dated as of August 3, 1999
(the "PURCHASE AGREEMENT"). Investor also has the option to purchase additional
shares of the Company's Common Stock pursuant to the Purchase Agreement. The
execution and delivery of this Agreement is a condition to the closing of the
transactions pursuant to the Purchase Agreement. Capitalized terms used herein
which are defined in the Purchase Agreement shall have the meanings assigned in
the Purchase Agreement unless otherwise defined herein.
In consideration of the mutual covenants contained herein and
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties to this Agreement agree as follows:
1. Board of Directors.
(a) Investor Directors. From and after the Initial Closing and
until the provisions of this paragraph 1 cease to apply, the Company shall use
its best efforts to cause to be elected one board designee nominated by Investor
(an "INVESTOR DIRECTOR") so long as Investor holds at least 1,200,000 shares of
Common Stock (as such number is adjusted after the date hereof to take into
account any stock dividends, stock splits and other recapitalizations) and shall
use such efforts to cause to be elected a second Investor Director so long as
Investor has exercised the Option for at least 2,500,000 shares of Common Stock
and continues to hold at least 4,000,000 shares of Common Stock (as such number
in each case is adjusted after the date hereof to take into account any stock
dividends, stock splits and other recapitalizations). No Investor Director,
however, may be an employee or officer of the Company or its Subsidiaries. If
Investor fails at any time to advise the Board in writing of its Board designees
for the Company's next annual stockholders' meeting or any extraordinary meeting
in lieu thereof, then the Investor designees for any such annual meeting or
extraordinary meeting shall be deemed to be the incumbent Investor Directors. If
Investor at any time falls below the thresholds necessary to maintain one or
more Investor Directors, Investor shall lose the right to nominate candidates
for the directorships held by such Investor Directors at all future elections of
the Board.
(b) Actions at the Initial Closing and the Option Closing. The
Company shall take, or cause to be taken, such action as may be necessary or
advisable to ensure that simultaneously
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with the Initial Closing, the Board shall have at least one vacancy (which may
be created by increasing the number of directorships or by accepting the
resignation of an existing director) which shall be vacant pending designation
by Investor of one individual to serve as a member of the Board pursuant to this
Agreement. The Company shall take, or cause to be taken, such action as may be
necessary or advisable to ensure that simultaneously with the Initial Closing,
each of the committees of the Board of Directors shall include one director
designated by Investor. If the Option is exercised for at least 2,500,000 shares
(as such number is adjusted after the date hereof to take into account any stock
dividends, stock splits and other recapitalizations), the Company shall take,
or cause to be taken, such action as may be necessary or advisable to ensure
that simultaneously with the Option Closing, the Board shall have at least one
vacancy (which may be created by increasing the number of directorships or by
accepting the resignation of an existing director) which shall be vacant pending
designation by Investor of one additional individual to serve as a member of the
Board pursuant to this Agreement.
(c) Expenses. The Company shall pay the reasonable
out-of-pocket expenses incurred by each Investor Director in connection with
attending the meetings of the Board and any committee thereof. So long as any
Investor Director designated under this Agreement serves on the Board and for
five years thereafter, the Company shall maintain directors and officers
indemnity insurance coverage satisfactory to the Board at the time such
insurance is first obtained and not thereafter reduced in amount or coverage,
and the Company's certificate of incorporation and bylaws shall provide for
indemnification and exculpation of directors to the fullest extent permitted
under applicable law.
(d) Termination. The rights and requirements under this
paragraph 1 with respect to any Investor Director shall terminate upon the
earlier of (i) the time that Investor fails to hold in the aggregate the shares
necessary to designate such Investor Director pursuant to this paragraph 1 (and
such right shall not be reinstated) and (ii) the closing of a Sale of the
Company.
2. Representations and Warranties. Investor represents and
warrants that (i) this Agreement has been duly authorized, executed and
delivered by Investor and constitutes the valid and binding obligation of
Investor, enforceable in accordance with its terms, except as enforceability may
be limited by bankruptcy, similar laws of debtor relief and general principles
of equity and (ii) Investor has not granted and is not a party to any proxy,
voting trust or other agreement which is inconsistent with, conflicts with or
violates any provision of this Agreement. No holder of Investor Shares shall
grant any proxy or become party to any voting trust or other agreement which is
inconsistent with, conflicts with or violates any provision of this Agreement.
3. Standstill.
(a) Except with the prior approval of the Board (as evidenced
by a duly adopted resolution), during the Standstill Period, Investor will not,
and each holder of Investor Shares will not, and each of the Investor and holder
of Investor Shares will not cause or permit its Affiliates or Associates to,
directly or indirectly:
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(i) make, effect, initiate, propose, cause or participate
in (including, but not limited to, arranging any
financing for, or provide any financing commitment
for):
(A) any acquisition of ownership (including, but not
limited to, beneficial ownership as defined in Rule
13d-3 under the Securities Exchange Act) of any
Voting Securities or securities convertible or
exchangeable into or exercisable for any Voting
Securities of the Company or any Subsidiary or
other Affiliate of the Company,
(B) any acquisition of any assets of the Company or any
Subsidiary or other Affiliate of the Company, or
(C) any tender offer, exchange offer, merger, business
combination, recapitalization, restructuring,
liquidation, dissolution or extraordinary
transaction involving the Company or any Subsidiary
or other Affiliate of the Company, or involving any
securities or assets of the Company or any
Subsidiary or other Affiliate of the Company;
provided, that the Investor may take any of the
above-described actions within 60 days after another
Person that is not an Affiliate or Associate of
Investor has made a publicly announced proposal to take
any such action that would result in a Sale of the
Company so long as such Investor's actions are not in
concert with such other Person.
(ii) become a member of a group with respect to the Common
Stock, other equity securities or assets of the
Company;
(iii) call or seek to call any special meeting of the
Company's stockholders for any reason whatsoever or
initiate a stockholder vote or action by written
consent of the Company's stockholders with respect to
any matter;
(iv) initiate, propose, make or in any way participate in,
directly or indirectly, any "solicitation" of "proxies"
to vote, or seek to influence any person or entity with
respect to the Company in opposition to any matter
which has been recommended by the Board or in favor of
any matter which has not been approved by the Board; or
(v) enter into any discussions, negotiations, arrangements
or understandings with any third party with respect to
any of the foregoing.
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(b) Notwithstanding paragraph 3(a)(i) above, Investor and its
Affiliates and Associates may acquire Common Stock from and after the Closing to
the extent that such acquisition, which when combined with the shares of Common
Stock then owned by Investor and its Affiliates and Associates, would not result
in Investor and its Affiliates and Associates beneficially owning more than an
aggregate of 20% of the then outstanding Voting Securities of the Company.
(c) Each holder of Investor Shares agrees that, in the event
of any breach of the provisions of this paragraph 3, the Company shall in
addition to any right at law to damages be deemed irreparably harmed and
entitled to equitable relief (without the posting of any bond or other
security), including injunction requiring prompt disposition of securities
acquired contrary to this Agreement in a manner which is calculated to cause
wide distribution of the shares and which is agreeable to the Company.
(d) In the event that the Company shall adopt a stockholder
rights plan with provisions that are triggered by the acquisition of beneficial
ownership of a specified percentage of the Common Stock (a "TRIGGER
PERCENTAGE"), the Company agrees that, for purposes of determining application
of the stockholder rights plan to Investor, the plan will provide for a 20%
Trigger Percentage even if the general Trigger Percentage is below 20%.
4. Restrictions on Transfers of Investor Shares.
(a) No Transfers. Investor acknowledges that the Investor
Shares have not been registered under the Securities Act by reason of a specific
exemption therefrom, and may not be Transferred except in compliance with the
Securities Act. Until the first anniversary of the date of this Agreement, no
holder of Investor Shares shall Transfer any Investor Shares beneficially owned
by such Person on the date hereof or hereafter acquired, without the prior
approval of the Board (as evidenced by a duly adopted resolution); provided that
nothing contained in this paragraph 4 shall prohibit any holder of Investor
Shares from pledging such shares; and provided further that the provisions of
this paragraph 4(a) shall terminate and cease to be effective upon and with
respect to the consummation of a Sale of the Company. Thereafter, subject to
paragraph 4(c) below, Investor Shares are transferable only pursuant to (i)
public offerings registered under the Securities Act, (ii) Rule 144 or Rule 144A
of the Securities and Exchange Commission (or any similar rule or rules then in
force) if such rule is available, and (iii) any other legally available means of
transfer.
(b) Permitted Transfers. The restrictions set forth in this
paragraph 4 shall not apply with respect to any Transfer of Investor Shares by
Investor and its Affiliates to and among each other; provided that the
restrictions contained in this paragraph 4 shall continue to be applicable to
the Investor Shares after any such Transfer and provided further that the
transferees of such Investor Shares shall have agreed in writing to be bound by
the provisions of this Agreement affecting the Investor Shares so transferred.
Notwithstanding the foregoing, no party shall avoid the provisions of this
Agreement by making one or more transfers to one or more Affiliates and then
disposing of all or any portion of such party's interest in any such Affiliates.
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(c) Opinion Delivery. In connection with the transfer of
Investor Shares (other than a transfer described in paragraphs 4(a)(i) or
4(a)(ii) above), the holder thereof shall deliver written notice to the Company
describing in reasonable detail the transfer or proposed transfer, together with
an opinion of counsel which (to the Company's reasonable satisfaction) is
knowledgeable in securities law matters to the effect that such transfer of
Investor Shares may be effected without registration of such shares under the
Securities Act. In addition, if the holder of the Investor Shares delivers to
the Company an opinion of counsel that no subsequent transfer of such shares
shall require registration under the Securities Act, the Company shall promptly
upon such contemplated transfer deliver new certificates for such shares which
do not bear the Securities Act legend set forth in paragraph 5 below. If the
Company is not required to deliver new certificates for such Investor Shares not
bearing such legend, the holder thereof shall not transfer the same until the
prospective transferee has confirmed to the Company in writing its agreement to
be bound by the conditions contained in this paragraph 4 and paragraphs 5 or 6
below.
5. Legend. Each certificate evidencing Investor Shares and
each certificate issued in exchange for or upon the transfer of any Investor
Shares (if such shares remain Investor Shares after such transfer) shall be
stamped or otherwise imprinted with a legend in substantially the following
form:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE WERE
ORIGINALLY ISSUED ON _____________________, 1999, AND HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE.
SUCH SECURITIES MAY NOT BE OFFERED, SOLD, TRANSFERRED OR
OTHERWISE DISPOSED OF EXCEPT PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT OR PURSUANT TO AN EXEMPTION FROM, OR IN
A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF
THE SECURITIES ACT AND APPLICABLE STATE SECURITIES LAWS.
THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO
RESTRICTIONS ON TRANSFER AND RESALE AND OTHER PROVISIONS UNDER
AN INVESTORS AGREEMENT DATED AS OF _____________, 1999 BETWEEN
THE ISSUER OF SUCH SECURITIES (THE "COMPANY") AND THE INITIAL
HOLDER OF THESE SECURITIES, AS SUCH AGREEMENT MAY BE AMENDED
AND MODIFIED FROM TIME TO TIME. THE COMPANY RESERVES THE RIGHT
TO REFUSE THE TRANSFER OF SUCH SECURITIES UNTIL SUCH
CONDITIONS HAVE BEEN FULFILLED WITH RESPECT TO SUCH TRANSFER.
A COPY OF SUCH INVESTORS AGREEMENT SHALL BE FURNISHED WITHOUT
CHARGE BY THE COMPANY TO THE HOLDER HEREOF UPON WRITTEN
REQUEST."
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The legends set forth above shall be removed from the
certificates evidencing any shares that cease to be Investor Shares in
accordance with the definition of "Investor Shares."
6. Transfer. Prior to transferring any Investor Shares (other
than a Sale of the Company) to any Person, the holders of Investor Shares shall
cause the prospective transferee to be bound by this Agreement and to execute
and deliver to the Company and the holders of Investor Shares a counterpart of
this Agreement. Any Transfer or attempted Transfer of any Investor Shares in
violation of any provision of this Agreement shall be void, and the Company
shall not record such Transfer on its books or treat any purported transferee of
such Investor Shares as the owner of such shares for any purpose.
7. Definitions.
"Associate" has the meaning given to such term in Rule 12b-2
of the Securities Exchange Act.
"Affiliate" means, with respect to any Person, any other
Person who, directly or indirectly through one or more intermediaries, controls,
is controlled by or is under common control with such Person. For purposes of
this definition and this Agreement, the term "control" (and correlative terms)
means the power, whether by contract, equity ownership or otherwise, to direct
or cause the direction of management or policies of a Person.
"Agreement" has the meaning set forth in the preamble.
"beneficial ownership" (including the term "beneficially
owning" and other correlative terms) has the meaning given to such terms in
Section 13(d)(3) of the Securities Exchange Act.
"Board" means the Board of Directors of the Company as from
time to time hereafter constituted.
"Common Stock" means the Company's common stock, par value
$.01 per share, and any shares of capital stock for or into which such Common
stock hereafter is exchanged, converted, reclassified or recapitalized by the
Company or pursuant to an agreement to which the Company is a party.
"Company" has the meaning set forth in the preamble.
"group" has the meaning given to such term in Section 13(d)(3)
of the Securities Exchange Act.
"Investor" has the meaning set forth in the preamble.
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"Investor Director" has the meaning set forth in paragraph
1(a) hereof.
"Investor Shares" means (i) any Common Stock purchased
pursuant to the Purchase Agreement or otherwise during the Option Period (or
pursuant to an agreement entered into during the Option Period), (ii) any
capital stock or other equity securities issued or issuable directly or
indirectly with respect to the Common Stock referred to in clause (i) above by
way of stock dividend or stock split or in connection with a combination of
shares, recapitalization, merger, consolidation or other reorganization. As to
any particular shares constituting Investor Shares, such shares shall cease to
be Investor Shares when they have been (x) effectively registered under the
Securities Act and disposed of in accordance with the registration statement
covering them or (y) sold to the public through a broker, dealer or market maker
pursuant to Rule 144 (or any similar provision then in force) under the
Securities Act.
"Person" means an individual, a partnership, a corporation, a
limited liability company, an association, a joint stock company, a trust, a
joint venture, an unincorporated organization and a governmental entity or any
department, agency or political subdivision thereof.
"Purchase Agreement" has the meaning set forth in the
preamble.
"Sale of the Company" means either (i) the sale, lease,
conveyance or other disposition, in one or a series of related transactions, of
all or substantially all of the assets of the Company and its Subsidiaries,
taken as a whole, or (ii) a transaction or series of transactions (including by
way of merger, consolidation, or sale of stock) the result of which is that the
holders of the Company's outstanding voting stock immediately prior to such
transaction are after giving effect to such transaction no longer, in the
aggregate, the beneficial owners, directly or indirectly through one or more
intermediaries, of more than 50% of the voting power of the outstanding voting
stock of the Company.
"Securities Act" means the Securities Act of 1933, as amended
from time to time, and the rules and regulations promulgated thereunder.
"Securities Exchange Act" means the Securities Exchange Act of
1934, as amended from time to time, and the rules and regulations promulgated
thereunder.
"Standstill Period" means the period beginning on the date of
this Agreement and ending upon the first to occur of (i) the closing of a Sale
of the Company or (ii) the date after the third anniversary hereof on which
Investor has not for 180 days had a representative serving on the Board (and has
waived or otherwise lost its rights hereunder to have such a representative).
"Subsidiary" means, with respect to any Person, any
corporation, limited liability company, partnership, association or other
business entity of which (i) if a corporation, a majority of the total voting
power of shares of stock entitled (without regard to the occurrence of any
contingency) to vote in the election of directors, managers or trustees thereof
is at the time owned or controlled, directly or indirectly, by that Person or
one or more of the other Subsidiaries of that
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Person or a combination thereof, or (ii) if a limited liability company,
partnership, association or other business entity, a majority of the limited
liability company, partnership or other similar ownership interest thereof is at
the time owned or controlled, directly or indirectly, by any Person or one or
more Subsidiaries of that Person or a combination thereof. For purposes hereof,
a Person or Persons shall be deemed to have a majority ownership interest in a
limited liability company, partnership, association or other business entity if
such Person or Persons shall be allocated a majority of limited liability
company, partnership, association or other business entity gains or losses or
shall be or control the managing director or general partner of such limited
liability company, partnership, association or other business entity.
"Transfer" means any direct or indirect sale, transfer,
assignment, pledge or other disposition of (whether in one or more transactions
or with or without consideration and whether voluntarily or involuntarily or by
operation of law) any interest in Investor Shares.
"Voting Securities" means any securities of the Company
entitled to vote generally in the election of the Company's directors.
8. Amendment and Waiver. Except as otherwise provided herein,
no modification, amendment or waiver of any provision of this Agreement shall be
effective against the Company or holder of Investor Shares unless such
modification, amendment or waiver is approved in writing by the Company or the
holders of at least 50% of the Investor Shares, respectively. The failure of any
party to enforce any of the provisions of this Agreement shall in no way be
construed as a waiver of such provisions and shall not affect the right of such
party thereafter to enforce each and every provision of this Agreement in
accordance with its terms.
9. Severability. Whenever possible, each provision of this
Agreement shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement is held to be invalid,
illegal or unenforceable in any respect under any applicable law or rule in any
jurisdiction, such invalidity, illegality or unenforceability shall not affect
the validity, legality or enforceability of any other provision of this
Agreement in such jurisdiction or affect the validity, legality or
enforceability of any provision in any other jurisdiction, but this Agreement
shall be reformed, construed and enforced in such jurisdiction as if such
invalid, illegal or unenforceable provision had never been contained herein.
10. Entire Agreement. Except as otherwise expressly set forth
herein, this Agreement embodies the complete agreement and understanding among
the parties hereto with respect to the subject matter hereof and supersedes and
preempts any prior understandings, agreements or representations by or among the
parties, written or oral, which may have related to the subject matter hereof in
any way.
11. Successors and Assigns. Except as otherwise provided
herein, this Agreement shall bind and inure to the benefit of and be enforceable
by the Company and its successors and assigns and Investor and any subsequent
holders of Investor Shares and the respective successors and assigns of each of
them, so long as they hold Investor Shares; provided that the rights
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of Investor under paragraph 1 and under paragraph 3(d) hereof may not be
assigned without the prior written approval of the Company.
12. Counterparts. This Agreement may be executed in multiple
counterparts (including by telecopied signature pages), each of which shall be
an original and all of which taken together shall constitute one and the same
agreement.
13. Remedies. The Company and Investor shall be entitled to
enforce their rights under this Agreement specifically, to recover damages by
reason of any breach of any provision of this Agreement and to exercise all
other rights existing in their favor. The parties hereto agree and acknowledge
that money damages would not be an adequate remedy for any breach of the
provisions of this Agreement and that the Company and Investor may in its sole
discretion apply to any court of law or equity of competent jurisdiction for
specific performance and/or injunctive relief (without posting a bond or other
security) in order to enforce or prevent any violation of the provisions of this
Agreement.
14. Notices. All notices, demands or other communications to
be given or delivered under or by reason of the provisions of this Agreement
shall be in writing and shall be deemed to have been given when (a) delivered
personally to the recipient, (b) telecopied to the recipient (with hard copy
sent to the recipient by reputable overnight courier service (charges prepaid)
that same day), if telecopied before 5:00 p.m. Chicago, Illinois time on a
business day, and otherwise on the next business day, or (c) one business day
after being sent to the recipient by reputable overnight courier service
(charges prepaid). Such notices, demands and other communications shall be sent
to the Company at the address set forth below and to any holder of Investor
Shares at such address as indicated by the Company's records, or at such address
or to the attention of such other person as the recipient party has specified by
prior written notice to the sending party.
The Company
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Chairman and CEO
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy (which shall not constitute notice) to:
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Senior Vice President and General Counsel
▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
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Investor
Vulcan Ventures Incorporated
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▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy (which shall not constitute notice) to:
▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇▇ Godward LLP
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
15. GOVERNING LAW. THE CORPORATE LAW OF THE STATE OF DELAWARE
SHALL GOVERN ALL ISSUES AND QUESTIONS CONCERNING THE RELATIVE RIGHTS OF
ALLEGIANCE AND ITS STOCKHOLDERS. ALL OTHER ISSUES AND QUESTIONS CONCERNING THE
CONSTRUCTION, VALIDITY, INTERPRETATION AND ENFORCEMENT OF THIS AGREEMENT AND THE
EXHIBITS AND SCHEDULES HERETO SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAWS OF THE STATE OF ILLINOIS, WITHOUT GIVING EFFECT TO ANY CHOICE OF
LAW OR CONFLICT OF LAW RULES OR PROVISIONS (WHETHER OF THE STATE OF ILLINOIS OR
ANY OTHER JURISDICTION) THAT WOULD CAUSE THE APPLICATION OF THE LAWS OF ANY
JURISDICTION OTHER THAN THE STATE OF ILLINOIS.
16. Descriptive Headings; Interpretation; No Strict
Construction. The descriptive headings of this Agreement are inserted for
convenience only and do not constitute a substantive part of this Agreement.
Whenever required by the context, any pronoun used in this Agreement shall
include the corresponding masculine, feminine or neuter forms, and the singular
forms of nouns, pronouns, and verbs shall include the plural and vice versa.
Reference to any agreement, document, or instrument means such agreement,
document, or instrument as amended or otherwise modified from time to time in
accordance with the terms thereof, and if applicable hereof. The use of the
words "include" or "including" in this Agreement shall be by way of example
rather than by limitation. The use of the words "or," "either" or "any" shall
not be exclusive. The parties hereto have participated jointly in the
negotiation and drafting of this Agreement. In the event an ambiguity or
question of intent or interpretation arises, this Agreement shall be construed
as if drafted jointly by the parties hereto, and no presumption or burden of
proof shall arise favoring or disfavoring any party by virtue of the authorship
of any of the provisions of this Agreement.
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17. Delivery by Facsimile. This Agreement, the agreements
referred to herein, and each other agreement or instrument entered into in
connection herewith or therewith or contemplated hereby or thereby, and any
amendments hereto or thereto, to the extent signed and delivered by means of a
facsimile machine, shall be treated in all manner and respects as an original
agreement or instrument and shall be considered to have the same binding legal
effect as if it were the original signed version thereof delivered in person. At
the request of any party hereto or to any such agreement or instrument, each
other party hereto or thereto shall reexecute original forms thereof and deliver
them to all other parties. No party hereto or to any such agreement or
instrument shall raise the use of a facsimile machine to deliver a signature or
the fact that any signature or agreement or instrument was transmitted or
communicated through the use of a facsimile machine as a defense to the
formation or enforceability of a contract and each such party forever waives any
such defense.
18. Expenses. The parties hereto shall each bear their own
costs and expenses (including, without limitation, legal fees and expenses)
incurred in connection with, or arising out of, this Agreement and the
transactions contemplated hereby.
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IN WITNESS WHEREOF, the parties hereto have executed this
Investors Agreement on the day and year first above written.
ALLEGIANCE TELECOM, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Its: Chairman and Chief Executive Officer
VULCAN VENTURES INCORPORATED
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Its: Vice President
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