EXHIBIT 7(J)
STOCKHOLDERS' AGREEMENT
This Stockholders' Agreement (this "Agreement") is made as of August 5,
1997, by and among Tele-Communications, Inc., a Delaware corporation, Xxxx X.
Xxxxxx ("Xxxxxx"), the IP Series B Trust II (the "Trust"), Xxx X. Xxxxxxx, Xx.,
both individually and as trustee of the Trust ("Hindery"), and the persons who
are the beneficiaries of the Trust as of the date of this Agreement.
In consideration of the mutual promises and covenants contained in this
Agreement, and intending to be legally bound, the parties agree as follows:
ARTICLE I: DEFINITIONS
1.1 DEFINITIONS. The following terms, when used in this Agreement, will have
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the meanings set forth below.
Affiliate: of a Person is any other Person that Controls, is
Controlled by or is under common Control with such
Person.
Affiliate Offer: a bona fide written offer from an Affiliate of any
member of the Shareholder Group to purchase or
otherwise acquire all or part of the TCI Shares owned
by one or more members of the Shareholder Group.
Business Day: any day that is not a Saturday, a Sunday or a day
on which banking institutions in Denver, Colorado or
San Francisco, California are required or authorized to
be closed.
Control: the power to elect a majority of the directors (or
similar officials) of a Person or to direct or cause
the direction of the management and policies of a
Person, whether by the ownership of voting interests,
by contract or otherwise.
Election Notice: either a Xxxxxx Election Notice or a TCI Election
Notice, as the context requires.
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Fair Market Value: the cash price at which a willing seller would sell and
a willing buyer would buy specified property, both
having full knowledge of the relevant facts and being
under no compulsion to buy or sell, in an arm's-length
transaction without unusual time constraints.
HSR Act: the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of
1976, as amended.
Material Consent: the consent, waiver or authorization of, or filing
with, any Person the lack of which reasonably could be
expected to result in (a) material liability to the
Offeror or the Purchaser if a purchase of TCI Shares by
Xxxxxx or TCI pursuant to Article III is consummated or
(b) either the Offeror or the Purchaser being deprived
of all or a material part of the benefits incident to
the purchase and sale of TCI Shares pursuant to Article
III.
Purchase Agreement: the Partnership Interest Purchase Agreement dated
as of August 5, 1997 between TCI ICM IV, Inc. and the
Trust.
Series A Shares: shares of Tele-Communications, Inc. Series A TCI Group
Common Stock.
Shareholder Group: Hindery, the Trust, any Person that is a trustee or
beneficiary of the Trust from time to time and each
Transferee.
TCI: Tele-Communications, Inc., a Delaware corporation.
TCI Change in Control: the acquisition by any Person, or by a group of Persons
that are under common Control (other than one or a
combination of the Persons that constitute the TCI
Control Group), within any period of 12 consecutive
months, of beneficial ownership (within the meaning of
Rule 13d-3 under the Securities Exchange Act of 1934,
as amended) of Voting Stock of TCI representing in the
aggregate more than 50% of the total voting power of
all Voting Stock of TCI, calculated on a fully diluted
basis immediately prior to the date of such acquisition
(or, if such Voting Stock is acquired in more than
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one transaction during such 12-month period, the date
of the last of such transactions).
TCI Control Group: Xxxx X. Xxxxxx, the estate, beneficiaries of the estate
and the legal heirs of Xxxx X. Xxxxxx after the death
of Xxxx X. Xxxxxx, the estate, beneficiaries of the
estate and the legal heirs of Xxx Xxxxxxx, the
directors of TCI as of the date of this Agreement, any
trust or other investment vehicle for the primary
benefit of any of the foregoing persons or their heirs,
Xxxxxx-Tribune Corporation or any successor thereto by
merger or consolidation, and the trustee under any
employee stock purchase plan or other employee benefit
plan of TCI, it being agreed that such trustee will be
deemed to have beneficial ownership of all the Voting
Stock of TCI held under the plan, whether or not
allocated to or vested in participants' accounts.
TCI Shares: the shares of Tele-Communications, Inc. Series B TCI
Group Common Stock acquired by the Trust pursuant to
the Purchase Agreement, and any other securities issued
in exchange for any of the foregoing (except Series A
Shares exchanged for TCI Shares as provided in Article
III), that are held by or for the benefit of any member
of the Shareholder Group from time to time.
Third Party Offer: a bona fide written offer from a prospective purchaser
that is not an Affiliate of any member of the
Shareholder Group to purchase all or a portion of the
TCI Shares.
Trading Price: the average of the daily market prices of one TCI
Share for 30 consecutive Business Days commencing 25
Business Days before the date on which TCI gives a TCI
Election Notice or Xxxxxx gives a Xxxxxx Election
Notice, as appropriate. The daily market price of a
TCI Share on any Business Day will be (a) the last sale
price on such day on the principal stock exchange on
which TCI Shares are then listed or admitted to trading
or (b) if no sale takes place on such date on that
exchange, the average of the reported closing bid and
asked prices on such day as officially noted on that
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exchange. The Trading Price will be appropriately
adjusted to reflect the effects of any stock dividend,
stock split, reclassification or combination affecting
TCI Shares as a class, the record date or ex-dividend
date of which occurs during the period in which the
Trading Price is to be determined or thereafter prior
to the closing of the purchase of TCI Shares for which
the calculation of the Trading Price is required to be
made.
Transfer: with respect to any property, a sale, exchange,
transfer, assignment, pledge, grant of a security
interest in or other disposition of all or any
interest, of record or beneficially, in such property
(whether voluntary, involuntary or by operation of
law).
Transferee: a Person to whom a Transfer of TCI Shares is made in
compliance with this Agreement.
Voting Stock: the issued and outstanding capital stock of a
corporation having general voting power under ordinary
circumstances to elect directors of the corporation,
but not including any capital stock that has or would
have such voting power solely by reason of the
happening of any contingency.
ARTICLE II: VOTING ARRANGEMENTS
Hindery and each other member of the Shareholder Group agree that Hindery,
as the trustee of the Trust, will have the exclusive right to exercise all of
the voting and consent rights associated with the TCI Shares on all matters as
to which such voting or consent rights are required or permitted to be
exercised, and that Hindery will exercise such rights as Xxxxxx directs.
Hindery and, if required or deemed desirable by Xxxxxx, each other member of the
Shareholder Group, will execute and deliver to Xxxxxx such proxies and other
instruments and documents as Xxxxxx may request from time to time to give effect
to or to evidence the rights granted in this Article II.
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ARTICLE III: TRANSFER RESTRICTIONS
3.1 TCI SHARE TRANSFERS. No member of the Shareholder Group will Transfer any
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of the TCI Shares, or any interest therein, held by it or of which it is a
beneficial owner except to the extent specifically permitted by this Article
III. Any Transfer of TCI Shares or an interest therein other than as
specifically permitted by this Article III will be void and of no effect. The
restrictions on, and obligations with respect to, Transfers of TCI Shares set
forth in this Agreement will be in addition to, and not in lieu of, any other
restrictions or obligations imposed by applicable law or set forth in any
instrument or agreement by which the TCI Shares or any member of the Shareholder
Group is bound.
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3.2 RIGHT OF FIRST REFUSAL.
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(a) A member of the Shareholder Group may Transfer all or any portion of
the TCI Shares held or beneficially owned by it to an Affiliate or to a Person
that is not an Affiliate only after complying with the provisions of this
Section 3.2. No member of the Shareholder Group may Transfer any record or
beneficial interest in any TCI Share separately from all of the legal and
beneficial interests in such TCI Share, except to the extent necessary for the
TCI Shares to be held of record by the Trust or for TCI Shares to be distributed
to beneficiaries of the Trust to the extent permitted by Section 3.4. If the
Trust or any other member of the Shareholder Group wishes to sell on the NASDAQ
National Market System or on any national securities exchange (an "Open Market
Sale"), or receives and wishes to accept a Third Party Offer or an Affiliate
Offer for, or, in the case of Hindery, wishes to contribute to an entity
qualified under Section 501(c)(3) of the Internal Revenue Code of 1986, as
amended (a "Charitable Contribution"), all or any portion of the TCI Shares held
or beneficially owned by it (the "Offered Shares"), that Person (the "Offeror")
must first offer to Xxxxxx and TCI the opportunity to purchase the Offered
Shares. The offer will be made by notice (an "Offer Notice") given by the
Offeror to Xxxxxx and TCI (a) accompanied (i) in the case of a Third Party
Offer, by a copy of the Third Party Offer that specifically identifies the
Person making the Third Party Offer and, to the extent known to the Offeror,
each Person that directly or indirectly Controls such Person, (ii) in the case
of an Affiliate Offer, by a notice that specifically identifies the Affiliate
making the Affiliate Offer and each Person that directly or indirectly Controls
such Affiliate, or (iii) in the case of a Charitable Contribution, by a notice
identifying the charitable organization to which Hindery desires to transfer
Offered Shares, and (b) in any case stating the Offeror's bona fide intention to
Transfer the Offered Shares in an Open Market Sale or pursuant to the Third
Party Offer, Affiliate Offer, or Charitable Contribution. The Offeror will
provide such additional information as may reasonably be requested by Xxxxxx or
TCI to evaluate the terms of the prospective Transfer. Xxxxxx may elect to
purchase all or a portion of the Offered Shares by giving notice of such
election to the Shareholder Group and TCI (the "Xxxxxx Election Notice") within
20 days after his receipt of the Offer Notice (the "Xxxxxx Election Period").
If Xxxxxx does not give an Election Notice for all of the Offered Shares within
the Xxxxxx Election Period, TCI will have a period of 10 days after the end of
the Xxxxxx Election Period (the "TCI Election Period") within which it may
elect, by notice to Xxxxxx and the Offeror (a "TCI Election Notice"), to
purchase the Offered Shares that Xxxxxx has not elected to purchase.
(b) The consideration payable by Xxxxxx or TCI, as applicable (the
"Purchaser"), for each Offered Share that the Purchaser has elected to purchase,
at the Purchaser's election will be either (i) one Series A Share (or that
number of Series A Shares, or shares of any successor class or series of stock
issued in replacement of Series A Shares, into which one share of Tele-
Communications, Inc. Series B TCI Group Common Stock is convertible at the time
of determination) or (ii) if the Offered Shares are the subject of a Third Party
Offer, cash in an amount equal to the consideration payable for one TCI Share
pursuant to the Third Party Offer, and if the Offered Shares are
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to be sold in an Open Market Sale or are the subject of an Affiliate Offer, cash
in an amount equal to the Trading Price; provided, however, that if the Offered
Shares are to be Transferred as a Charitable Contribution, the consideration
payable by the Purchaser for the Offered Shares will be determined under
paragraph (b)(i) and the Purchaser will not have the right to elect to pay the
consideration determined under paragraph (b)(ii) for such Offered Shares. The
Purchaser will indicate in its Election Notice whether it elects to pay the
purchase price in cash or Series A Shares. To the extent the consideration
proposed to be paid for TCI Shares in a Third Party Offer consists of property
other than cash, if the Purchaser elects to purchase Offered Shares for cash it
will pay an amount equal to the Fair Market Value of such property. To the
extent TCI is the Purchaser and elects to use Series A Shares as consideration
for Offered Shares, the Offeror will convert such Offered Shares into Series A
Shares. Any Series A Shares delivered by Xxxxxx as consideration for Offered
Shares pursuant to this paragraph (b) will have the registration rights set
forth in Annex A.
(c) For purposes of this Article III, the Fair Market Value of the non-cash
consideration proposed to be paid for TCI Shares in a Third Party Offer will be
determined by agreement of the Offeror and the Purchaser. If they cannot agree
on such Fair Market Value within 10 Business Days after an Election Notice is
given, such Fair Market Value will be determined by an appraiser acceptable to
the Offeror and the Purchaser. If they are unable to agree on a single
appraiser within 10 Business Days after an Election Notice is given (the
"Selection Period"), the Offeror and the Purchaser each will select an appraiser
by giving notice to each other of such appraiser's identity within 10 Business
Days after the end of the Selection Period. The Offeror and the Purchaser each
will cause the appraiser they have selected to determine the Fair Market Value
of the non-cash consideration in question and to submit a written report of its
determination within 30 Business Days after the appraiser is selected. If the
higher of the two appraisals is equal to or less than 120% of the lower
appraisal, the average of the two will be the Fair Market Value of the non-cash
consideration. If the higher of the two appraisals is more than 120% of the
lower appraisal, the two appraisers will appoint a third appraiser within 10
Business Days and cause the third appraiser to submit a written report of its
determination of the Fair Market Value of the non-cash consideration within 30
Business Days after such appraiser's selection. Such third appraiser will not
be informed of the determinations of the other two appraisers. If three
appraisals are necessary, then the average of the two appraisals in which the
Fair Market Values are closest together will be deemed the Fair Market Value of
the non-cash consideration or, if the highest and lowest appraisal differ from
the middle appraisal by equal amounts, then the middle appraisal will be deemed
the Fair Market Value. Any appraiser appointed pursuant to this Section 3.2(c)
will be a nationally-recognized investment banking firm. The Offeror and the
Purchaser will pay the fees and costs of the appraisers appointed by them. The
Offeror and the Purchaser will share equally the fees and costs of any third
appraiser appointed pursuant to this Section 3.2(c).
(d) Unless the Offeror and the Purchaser otherwise agree, the closing of
any purchase of TCI Shares pursuant to this Section 3.2 will be held at the
principal
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corporate offices of TCI at 10:00 a.m. local time on the later of (i) the day
that is 20 days after the Election Notice is given and (ii) two Business Days
after the parties have obtained all Material Consents. If a purchase of TCI
Shares pursuant to this Section 3.2 requires any filing under the HSR Act, the
requirement for obtaining that consent for purposes of this Section 3.2 will be
deemed satisfied if the applicable waiting period under the HSR Act has expired
or has been terminated without the receipt of a notice of objection or the
commencement or threat of litigation by a government entity to restrain the
consummation of the purchase of the TCI Shares to be purchased. The Offeror and
the Purchaser will cooperate to prevent any inconsistency between any HSR Act
filings they are required to make and will furnish to each other such
information and reasonable assistance as the other may reasonably request in
connection with such filings and any request by a governmental agency for
additional information. Each party to this Agreement covenants to and with the
other parties that it will use its reasonable best efforts to obtain any
Material Consent required to consummate any purchase of TCI Shares by Xxxxxx or
TCI pursuant to this Article III as promptly as practicable.
(e) At the closing of any purchase and sale of the Offered Shares by the
Purchaser, (i) the Purchaser will pay the purchase price in the form in which
the Purchaser has elected to make such payment pursuant to Section 3.2(b) and
(ii) the Offeror will transfer to the Purchaser all of the record and beneficial
interests in the Offered Shares to be purchased, free and clear of all liens,
claims and encumbrances, and will deliver such bills of sale, assignments and
other agreements and instruments to the Purchaser, and will take all such other
reasonable actions at and after the closing as the Purchaser may request, to
effectively vest the Offered Shares to be purchased in the Purchaser.
(f) If any Material Consent cannot be obtained within 12 months after the
date the Election Notice is given, the Election Notice will be deemed rescinded
and the Offeror may Transfer the Offered Shares (i) in an Open Market Sale on
such terms as are generally available on such markets if a proposed Open Market
Sale by the Offeror gave rise to the right of first refusal pursuant to this
Section 3.2, (ii) pursuant to a Charitable Contribution, or (iii) to the Person
that made the Third Party Offer or Affiliate Offer for the consideration and
upon the terms and conditions set forth in the Third Party Offer or Affiliate
Offer (or, if the Person that made the Third Party Offer or Affiliate Offer no
longer wishes to purchase the Offered Shares, in an Open Market Sale on such
terms as are generally available on such markets) if a Third Party Offer or
Affiliate Offer gave rise to the right of first refusal pursuant to this Section
3.2, in any case for a period of 60 days beginning on the day after the first
anniversary of the date the Election Notice was given, provided that the Offered
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Shares so Transferred are first converted into Series A Shares. Upon such
conversion the Series A Shares will not again be subject to the right of first
refusal provisions of this Section 3.2 prior to the Transfer of such Series A
Shares within the 60-day period as permitted by this paragraph (f). If the
Offered Shares are not so Transferred during such 60-day period, the Offeror's
right to Transfer such Offered Shares will again be subject to the provisions of
this Section 3.2.
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(g) If Xxxxxx and TCI do not elect to purchase all of the Offered Shares,
the Offeror will be free for a period of 60 days after the end of the TCI
Election Period to Transfer the Offered Shares that Xxxxxx and TCI have not
elected to purchase in an Open Market Sale on such terms as are generally
available on such markets, pursuant to a Charitable Contribution, or to the
Person that made the Third Party Offer or Affiliate Offer for the consideration
and upon the terms and conditions set forth in the Third Party Offer or
Affiliate Offer, as applicable. If those Offered Shares are not so Transferred
during such 60-day period, the Offeror's right to Transfer such Offered Shares
will again be subject to the provisions of this Section 3.2.
(h) If any Offeror entitled to Transfer Offered Shares during a 60-day
period pursuant to paragraph (f) or (g) is precluded from Transferring all of
the Offered Shares such Offeror otherwise would be entitled to Transfer solely
because of restrictions imposed by Rule 144 under the Securities Act of 1933, as
amended, on the volume of securities that may be sold within a three-month
period, such Offeror may Transfer the Offered Shares the Offeror is precluded by
Rule 144 from Transferring during an additional period of 90 days, beginning on
the day after the end of the 60-day Transfer period permitted by paragraphs (f)
and (g).
(i) Except for the conversion of Offered Shares into Series A Shares
pursuant to paragraph (f), any member of the Shareholder Group who wishes to
convert any TCI Shares of which such Person is the holder or the beneficial
owner into Series A Shares will first offer to Xxxxxx and TCI the opportunity to
purchase such TCI Shares, which will be treated as Offered Shares that are
subject to the provisions of Section 3.2(a). If Xxxxxx gives a Xxxxxx Election
Notice or TCI gives a TCI Election Notice with respect to all or any portion of
such Offered Shares, the consideration payable upon the purchase of such Offered
Shares will be the Trading Price, payable in the form elected by the Purchaser
as described in Section 3.2(b).
3.3 CHANGE IN CONTROL OFFER. If any Third Party Offer is made that, if
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consummated, would result in a TCI Change in Control, and the transaction
represented by the Third Party Offer has been approved by TCI's Board of
Directors, the purchase price payable by Xxxxxx for Offered Shares, to the
extent Xxxxxx exercises his right of first refusal set forth in this Article
III, must be paid in cash and not in Series A Shares. The preceding sentence
will not preclude TCI, if it exercises its right of first refusal to purchase
all or part of the Offered Shares that Xxxxxx does not elect to purchase, from
paying the purchase price therefor in cash or Series A Shares, as it may elect.
3.4 DISTRIBUTIONS TO BENEFICIARIES. Notwithstanding any other provision of
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this Agreement, the Trust may distribute to any Person that is a beneficiary of
the Trust from time to time the number of TCI Shares that are beneficially owned
by such Person, provided that such Person complies with the provisions of
Section 3.6.
3.5 OTHER PERMITTED TRANSFERS. Notwithstanding any other provision of this
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Agreement, subject to the provisions of Section 3.6 any member of the
Shareholder
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Group may (a) pledge all or part of the TCI Shares of which it is the legal or
beneficial owner to Colorado National Bank or any other lending institution as
security for a loan, (b) Transfer all or part of the TCI Shares owned by such
Person to Xxxxx Xxxxxxxxx, Xxxxx X. Xxxxxx, Xxxxx Xxxx or Xxxx Xxxxxxxxx or (c)
Transfer all or part of the TCI Shares owned by such Person to any spouse,
parent, child, grandchild or sibling of such Person or to any trust or other
investment vehicle established primarily for the benefit of any of the foregoing
persons or their heirs, provided that prior to a Transfer permitted by clause
(a), (b) or (c) the member of the Shareholder Group making the Transfer causes
the Transferee to provide to TCI a written certificate establishing to TCI's
satisfaction that the Transfer qualifies as a private placement of the TCI
Shares to be Transferred under applicable securities laws and as to the
Transferee's investment intent with respect to such TCI Shares.
3.6 OTHER CONDITIONS TO TRANSFER. Any Person (other than Xxxxxx and TCI) to
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whom TCI Shares are permitted by this Article III to be Transferred must (except
in the case of a Transfer of Shares pursuant to Section 3.2(g)), prior to such
Transfer, agree in writing to be bound by the terms of this Agreement as a
member of the Shareholder Group if such Person is not already a party hereto.
No member of the Shareholder Group will make any Transfer of TCI Shares that
would violate U.S. federal or state securities laws.
ARTICLE IV: MISCELLANEOUS
4.1 STOCK CERTIFICATE LEGEND. All certificates representing TCI Shares will
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bear a legend in substantially the following form:
"The shares represented by this certificate have not been registered
under the Securities Act of 1933, as amended, or any state securities
laws, and may not be sold, pledged or otherwise transferred or
encumbered unless they are so registered or unless an exemption from
registration is available, and except in accordance with the
Stockholders' Agreement dated as of August ___, 1997 among the Company
and certain of its stockholders, a copy of which agreement is
available for inspection at the offices of the Company."
If an Offeror Transfers all or part of the Offered Shares to a Transferee as
permitted by Section 3.2(f) or 3.2(g), TCI will issue to the purchaser of such
Offered Shares a new certificate evidencing such Offered Shares without the
legend set forth above (other than, in the case of TCI Shares Transferred
pursuant to Section 3.5, the portion of such legend referring to the
restrictions imposed by this Agreement) upon the receipt by TCI of evidence
satisfactory to TCI and its legal counsel that the Offered Shares are registered
or that such sale will comply with Rule 144 under the Securities Act of 1933, as
amended,
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and any applicable state securities laws, and upon satisfaction of the transfer
procedures normally applicable to the TCI Shares.
4.2 TERMINATION. This Agreement will terminate upon the earliest to occur of
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(a) the death of Xxxxxx, (b) a TCI Change in Control that results from a
transaction that is approved by the Board of Directors of TCI at a time when the
majority of the members of such Board consist of persons who are, or are
appointed by, the persons who are directors of TCI as of the date of this
Agreement, or (c) the tenth anniversary of the date of this Agreement. The
termination of this Agreement will not affect the rights and obligations of the
parties accrued prior to such termination.
4.3 NOTICES. All notices, requests, demands and other communications required
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or permitted to be made pursuant to this Agreement will be in writing and will
be deemed to have been given if delivered in person or by courier, sent by
telecopy or sent by United States certified or registered mail, prepaid,
addressed as follows:
To TCI at:
Tele-Communications, Inc.
0000 XXX Xxxxxxx
Xxxxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxx, Executive Vice President
and General Counsel
Telecopy: (000) 000-0000
with a copy to:
Xxxxxxx & Xxxxxx L.L.C.
000 Xxxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxx, Esq.
Telecopy: (000) 000-0000
To Xxxxxx at:
Tele-Communications, Inc.
0000 XXX Xxxxxxx
Xxxxxxxxx, Xxxxxxxx 00000
Telecopy: (000) 000-0000
To the Shareholder Group at:
InterMedia Partners
000 Xxxxxxxxxx Xxxxxx, Xxxxx 000
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
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Attention: Xxx X. Xxxxxxx, Xx.
Telecopy: (000) 000-0000
with a copy to:
Pillsbury Madison & Sutro LLP
000 Xxxxxxxxxx Xxxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxx X. Xxxxxx, Esq.
Telecopy: (000) 000-0000
Any party may change the address to which notices are required to be sent by
giving notice of such change in the manner provided in this Section. Any notice
delivered personally or by courier will be deemed to be received on the date of
delivery; any notice sent by telecopy will be deemed to be received upon
confirmation of transmission by person or machine; and any notice so mailed will
be deemed to be received on the date shown on the return receipt (evidence of
rejection of delivery or inability to deliver because of a changed address of
which no notice was given pursuant to the provisions of this Agreement will be
deemed to be a receipt).
4.4 MODIFICATION; WAIVER. This Agreement may be modified or terminated by
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mutual agreement only by a writing signed by all the parties, and no provision
or condition herein may be waived other than by a writing signed by the party
waiving such provision or condition.
4.5 HEADINGS. Article and Section headings in this Agreement are for the sole
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purpose of convenient reference and in no way define, limit or prescribe the
scope or intent of this Agreement or any part hereof, and such headings will not
be considered in interpreting or construing this Agreement.
4.6 ASSIGNMENT. Any rights exercisable by Xxxxxx under this Agreement may be
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exercised by any designee of Xxxxxx. Except as provided in the preceding
sentence, no party will assign any of its rights under this Agreement or
delegate its duties hereunder unless it obtains the prior written consent of the
other parties, which consent may be withheld at each such party's absolute
discretion.
4.7 SPECIFIC PERFORMANCE. The parties acknowledge that Xxxxxx would be
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irreparably damaged if any member of the Shareholder Group violates or breaches
its obligations under Article II, and that Xxxxxx and TCI would be irreparably
damaged if any member of the Shareholder Group violates or breaches its
obligations under Article III, and that in either case money damages would be an
inadequate remedy for such breach or violation. Accordingly, each member of the
Shareholder Group agrees that the provisions of Article II will be specifically
enforceable by Xxxxxx and the provisions of Article III will be specifically
enforceable by Xxxxxx and TCI, and that Xxxxxx and TCI will be entitled to
temporary and permanent injunctive relief and other equitable
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remedies, at their sole election, to enforce such provisions. Such rights of
enforcement will be without prejudice to any other right or remedy available to
Xxxxxx or TCI.
4.8 COUNTERPARTS. This Agreement may be executed in any number of
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counterparts, each of which may be deemed to be an original, and all of which
taken together will constitute one instrument.
4.9 GOVERNING LAW. THIS AGREEMENT WILL BE GOVERNED BY THE LAWS OF THE STATE OF
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DELAWARE, WITHOUT REGARD TO ANY CONFLICTS OF LAWS RULES.
4.10 OTHER. This Agreement constitutes the entire agreement of the parties
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regarding the subject matter hereof, and all prior or contemporaneous
agreements, understandings, representations and statements, oral or written, are
hereby merged into this Agreement. This Agreement will be binding upon and
inure to the benefit of the parties and, subject to the limitations set forth in
Section 4.5, their respective successors and assigns. The provisions of this
Agreement are for the exclusive benefit of the parties and their permitted
successors and assigns, and no other Person is intended to be a third party
beneficiary or to have any rights by virtue of this Agreement.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
IP SERIES B TRUST II
---------------------------- By:
Xxxx X. Xxxxxx ----------------------------------
Xxx X. Xxxxxxx, Xx., Trustee
TELE-COMMUNICATIONS, INC. TRUST BENEFICIARIES:
By:
------------------------- ------------------------------------
Xxxxxxx X. Xxxxx Xxxxx Xxxxxxxxx
Executive Vice President
and General Counsel
------------------------------------
Xxxxx X. Xxxxxx
------------------------------------
Xxx X. Xxxxxxx, Xx.
------------------------------------
Xxxxx Xxxx
------------------------------------
Xxxxx X. Xxxxx
------------------------------------
Xxxxxx X. Xxxxx
------------------------------------
Xxxx X. Xxxxxxxxx
------------------------------------
Xxxxxxx Xxxxxxx Xxxxxx
------------------------------------
Xxxxx X. Xxxxxx
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Xxxxxx Capital Partners, Ltd., a Colorado
limited partnership
By Xxxxxx Capital Corporation, a Colorado
corporation
Its General Partner
By:
------------------------------------
Xxxxx X. Xxxxxx
Its President
Xxxxx Xxxxxxx Trust
By:
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Xxxxxxx X. Xxxxxxx, Trustee
M & ME Group, LLC, a Delaware limited
liability company
By M & ME Group, Inc., a Delaware
corporation
By:
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Xxxx X. Xxxxxx
Its President
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