EXHIBIT 7
EXECUTION COPY
STOCKHOLDER AGREEMENT dated as of July 20, 1999 (this
"Agreement"), between CINCINNATI XXXX INC., an Ohio
corporation ("CBI"), and GENERAL ELECTRIC PENSION TRUST, a New
York common law trust ("GE").
WHEREAS CBI, Ivory Merger Inc., a Delaware corporation and a wholly
owned subsidiary of CBI ("Sub"), and IXC COMMUNICATIONS, INC., a Delaware
corporation ("IXC"), propose to enter into an Agreement and Plan of Merger dated
as of the date hereof (as the same may be amended or supplemented, the "Merger
Agreement"; terms used but not defined herein shall have the meanings set forth
in the Merger Agreement) providing for the merger of Sub with and into IXC (the
"Merger") upon the terms and subject to the conditions set forth in the Merger
Agreement;
WHEREAS GE owns the number of shares of common stock of IXC set
forth on Schedule A hereto (such shares of common stock of IXC, together with
any other shares of common stock of IXC acquired by GE after the date hereof and
during the term of this Agreement (including through the exercise of any stock
options, warrants or similar instruments), being collectively referred to herein
as the "Subject Shares");
WHEREAS as a condition to its willingness to enter into the Merger
Agreement, CBI has requested that GE enter into this Agreement; and
WHEREAS as a condition to its willingness to enter into this
Agreement, GE has requested that CBI agree to purchase from GE, and GE agrees to
sell to CBI, a portion of the Subject Shares pursuant to a stock purchase
agreement dated as of the date hereof (the "Stock Purchase Agreement").
NOW, THEREFORE, to induce CBI to enter into, and in consideration of
its entering into, the Merger Agreement, and in consideration of the premises
and the representa tions, warranties and agreements contained herein, the
parties hereto agree as follows:
SECTION 1. Representations and Warranties of GE. GE hereby
represents and warrants to CBI as follows:
(a) Organization; Authority; Execution and Delivery; Enforceability.
GE has all requisite power
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and authority to enter into this Agreement and to consummate the transactions
contemplated hereby. GE is duly organized, validly existing and in good standing
under the laws of its jurisdiction of organization. The execution and delivery
of this Agreement by GE and the consummation by GE of the transactions
contemplated hereby have been duly authorized by all necessary action on the
part of GE. This Agreement has been duly executed and delivered by GE and,
assuming due authorization, execution and delivery by CBI, constitutes a legal,
valid and binding obligation of GE, enforceable against GE in accordance with
its terms. The execution and delivery by GE of this Agreement do not, and the
consummation of the transactions contemplated hereby and compliance with the
provisions hereof, will not, conflict with, or result in any violation of, or
default (with or without notice or lapse of time or both) under, or give rise to
a right of termination, cancelation or acceleration of any obligation or loss of
a benefit under, or result in the creation of any Lien on any properties or
assets of GE under, (i) any provision of the certificate of incorporation or
by-laws or partnership agreement or the comparable organizational documents
applicable to GE, (ii) any loan or credit agreement, note, bond, mortgage,
indenture, lease or other agreement, instrument, permit, concession, franchise,
license or similar authorization (a "Contract") to which GE is a party or by
which any of the properties or assets of GE are bound or (iii) subject to the
filings and other matters referred to in the following sentence of this Section
1(a), any judgment, order, decree, statute, law, ordinance, rule or regulation
applicable to GE or its properties or assets, except in the case of each of
clauses (ii) and (iii), as is not materially likely to (x) impair the ability of
GE to perform its obligations under this Agreement or (y) prevent or materially
delay the consummation of the transactions contemplated by this Agreement. No
consent, approval, order or authorization of, action by or in respect of, or
registration, declaration or filing with, any Governmental Entity is required by
or with respect to GE in connection with the execution and delivery of this
Agreement by GE or the consummation by GE of the transactions contemplated
hereby, except for (1) such filings under the Exchange Act as may be required in
connection with this Agreement and the transactions contemplated hereby, (2)
such filings under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as
amended (the "HSR Act") as may be required in connection
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with this Agreement and the transactions contemplated hereby and (3) those which
are not materially likely to (x) impair the ability of GE to perform its
obligations under this Agreement or (y) prevent or materially delay the
consummation of the transactions contemplated by this Agreement. No trust of
which GE is a trustee requires the consent of any beneficiary to the execution
and delivery of this Agreement or to the consummation of the transactions
contemplated hereby.
(b) The Subject Shares. GE is the record and beneficial owner of (or
is the trustee of a trust that is the record holder of, and whose beneficiaries
are the beneficial owners of), and has good and marketable title to, the Subject
Shares set forth on Schedule A hereto, free and clear of any Liens. GE does not
own of record any shares of common stock of IXC other than the Subject Shares
set forth on Schedule A hereto, and does not beneficially own any shares of
common stock of IXC other than Subject Shares and any shares of common stock of
IXC into which its shares of IXC 7-1/4% convertible preferred stock are
convertible. GE has the sole right to vote and Transfer (as defined below) the
Subject Shares set forth opposite its name on Schedule A hereto, and none of
such Subject Shares is subject to any voting trust or other agreement,
arrangement or restriction with respect to the voting or the Transfer of such
Subject Shares, except as set forth in Section 3 of this Agreement.
SECTION 2. Representations and Warranties of CBI. CBI hereby
represents and warrants to GE as follows: CBI has all requisite corporate power
and authority to enter into this Agreement and to consummate the transactions
contemplated hereby. The execution and delivery of this Agreement by CBI and the
consummation of the transactions contemplated hereby have been duly authorized
by all necessary corporate action on the part of CBI. This Agreement has been
duly executed and delivered by CBI and, assuming due authorization, execution
and delivery by GE, constitutes a legal, valid and binding obligation of CBI,
enforceable against CBI in accordance with its terms. The execution and delivery
by CBI of this Agreement do not, and the consummation of the transactions
contemplated hereby and
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compliance with the provisions hereof, will not, conflict with, or result in any
violation of, or default (with or without notice or lapse of time or both)
under, or give rise to a right of termination, cancelation or acceleration of
any obligation or loss of a benefit under, or result in the creation of any Lien
on any properties or assets of CBI under, (i) any provision of the Amended
Articles of Incorporation or Amended Regulations of CBI, (ii) any Contract to
which CBI is a party or by which any of its properties or assets are bound or
(iii) subject to the filings and other matters referred to in the last sentence
of this Section 2, any judgment, order, decree, statute, law, ordinance, rule or
regulation applicable to CBI or any of its properties or assets, except in the
case of each of clauses (ii) and (iii), as is not materially likely to (x) have
a Material Adverse Effect on CBI, (y) impair the ability of CBI to perform its
obligations under this Agreement or (z) prevent or materially delay the
consummation of the transactions contemplated by this Agreement. No consent,
approval, order or authorization of, action by or in respect of, or
registration, declaration or filing with, any Governmental Entity is required by
or with respect to CBI in connection with the execution and delivery of this
Agreement by CBI or the consummation by CBI of the transactions contemplated
hereby except for (1) such filings under the Exchange Act as may be required in
connection with this Agreement and the transactions contemplated hereby, (2)
such filings under the HSR Act as may be required in connection with this
Agreement and the transactions contemplated hereby and (3) those which are not
materially likely to (x) have a Material Adverse Effect on CBI, (y) impair the
ability of CBI to perform its obligations under this Agreement or (z) prevent or
materially delay the consummation of the transactions contemplated by this
Agreement.
SECTION 3. Covenants of GE. GE covenants and agrees during the term
of this Agreement as follows:
(a) At any meeting of the stockholders of IXC called to vote upon
the Merger or the Merger Agreement or at any adjournment thereof or in any other
circumstances upon which a vote, consent or other approval (including by written
consent) with respect to the Merger or the Merger Agreement is sought, GE shall,
including by executing a
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written consent solicitation if requested by CBI, vote (or cause to be voted)
the Subject Shares (other than the Subject Shares which shall have been
purchased by CBI) in favor of the adoption by IXC of the Merger Agreement and
the approval of the terms thereof and of the Merger and each of the other
transactions contemplated by the Merger Agreement. GE hereby agrees not to take
any action by written consent in any circumstance other than in accordance with
this paragraph.
(b) Other than in accordance with the terms of this Agreement and
the Stock Purchase Agreement, GE shall not (i) sell, transfer, pledge, assign or
otherwise dispose of (including by gift) (collectively, "Transfer"), or consent
to any Transfer of, any Subject Shares or any interest therein or enter into any
Contract, option or other arrangement (including any profit sharing or other
derivative arrangement) with respect to the Transfer of, any Subject Shares or
any interest therein to any person other than pursuant to the Merger Agreement
or (ii) enter into any voting arrangement, whether by proxy, voting agreement or
otherwise, in connection with, directly or indirectly, any IXC Takeover Proposal
or otherwise with respect to the Subject Shares. GE shall not commit or agree to
take any action inconsistent with the foregoing. Notwithstanding the foregoing,
GE may Transfer all or a portion of the Subject Shares to any other person if
such person expressly agrees in writing to be bound by all of the provisions of
this Agreement.
(c) From and after the date of this Agreement, GE shall not, and
shall not authorize or permit any of its Subsidiaries or affiliates (other than
IXC) or any of its or their directors, officers, employees, investment bankers,
financial advisors, attorneys, accountants or other representatives to, directly
or indirectly, (i) solicit, initiate, encourage (including by way of furnishing
information), or take any other action designed to facilitate, any inquiries or
the making of any proposal that constitutes, an IXC Takeover Proposal, (ii)
enter into any agreement with respect to any IXC Takeover Proposal or (iii)
participate in any discussions or negotiations regarding an IXC Takeover
Proposal.
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(d) GE shall not issue any press release or make any other public
statement, and shall not authorize or permit any of its Subsidiaries or
affiliates (other than IXC) or any of its or their directors, officers,
employees, partners, investment bankers, attorneys or other advisors or
representatives to issue any press release or make any other public statement,
with respect to the Merger Agreement, this Agreement, the Merger or any of the
other transactions contemplated by the Merger Agreement or this Agreement
without the prior written consent of CBI, except as may be required by
applicable law, including any filings required under the Exchange Act.
SECTION 4. Further Assurances. GE will, from time to time, execute
and deliver, or cause to be executed and delivered, such additional or further
consents, documents and other instruments as CBI may reasonably request for the
purpose of effectuating the matters covered by this Agreement.
SECTION 5. Certain Events. GE agrees that this Agreement and the
obligations hereunder shall attach to GE's Subject Shares and shall be binding
upon any person or entity to which legal or beneficial ownership of such Subject
Shares shall pass, whether by operation of law or otherwise, including GE's
administrators or successors. In the event of any stock split, stock dividend,
merger, reorganization, recapitalization or other change in the capital
structure of IXC affecting the IXC Common Stock, or the acquisition of
additional shares of IXC Common Stock or other voting securities of IXC by any
Stockholder, the number of Subject Shares listed on Schedule A hereto shall be
adjusted appropriately and this Agreement and the obligations hereunder shall
attach to any additional shares of IXC Common Stock or other voting securities
of IXC issued to or acquired by GE.
SECTION 6. Assignment. Neither this Agreement nor any of the rights,
interests or obligations under this Agreement shall be assigned, in whole or in
part, by operation of law or otherwise, by any of the parties hereto without the
prior written consent of the other parties hereto, except that CBI may assign,
in its sole discretion, any of or all its rights, interests and obligations
under this Agreement to any direct or indirect wholly owned subsidiary of CBI,
but no such assignment shall relieve CBI of its obligations under
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this Agreement. Any purported assignment in violation of this Section 6 shall be
void. Subject to the preceding sentences of this Section 6, this Agreement will
be binding upon, inure to the benefit of, and be enforceable by, the parties
hereto and their respective successors and assigns.
SECTION 7. Termination. This Agreement shall terminate upon the
earlier of (a) the Effective Time and (b) 10 Business Days after the termination
of the Merger Agreement in accordance with its terms. No such termination of
this Agreement shall relieve any party hereto from any liability for any breach
of this Agreement prior to termination.
SECTION 8. General Provisions. (a) Amendments. This Agreement may
not be amended except by an instrument in writing signed by each of the parties
hereto.
(b) Notices. All notices, requests, clauses, demands and other
communications under this Agreement shall be in writing and shall be deemed
given if delivered personally, telecopied (with confirmation) or sent by
overnight or same-day courier (providing proof of delivery) to CBI in accordance
with Section 8.02 of the Merger Agreement and to the Stockholders at their
respective addresses set forth on Schedule A hereto (or at such other address
for a party as shall be specified by like notice).
(c) Interpretation. When a reference is made in this Agreement to
Sections or Schedules, such reference shall be to a Section or Schedule to this
Agreement unless otherwise indicated. The headings contained in this Agreement
are for reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement. Wherever the words "include", "includes" or
"including" are used in this Agreement, they shall be deemed to be followed by
the words "without limitation". The words "hereof", "herein" and "hereunder" and
words of similar import when used in this Agreement shall refer to
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this Agreement as a whole and not to any particular provision of this Agreement.
The term "or" is not exclusive. The definitions contained in this Agreement are
applicable to the singular as well as the plural forms of such terms. Any
agreement or instrument defined or referred to herein or in any agreement or
instrument that is referred to herein means such agreement or instrument as from
time to time amended, modified or supplemented. References to a person are also
to its permitted successors and assigns.
(d) Counterparts; Effectiveness. This Agreement may be executed in
one or more counterparts, each of which shall be deemed to be an original, but
all of which, taken together, shall be considered one and the same agreement and
shall become effective when one or more counterparts have been signed by each of
the parties hereto and delivered to the other party. The effectiveness of this
Agreement shall be conditioned upon the execution and delivery of the Merger
Agreement by each of the parties thereto.
(e) Entire Agreement; No Third-Party Beneficiaries. This Agreement
(including the documents and instruments referred to herein) (i) constitutes the
entire agreement and supersedes all prior agreements and understandings, both
written and oral, among the parties hereto with respect to the subject matter of
this Agreement and (ii) is not intended to confer upon any person other than the
parties hereto any rights or remedies hereunder.
(f) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE, WITHOUT REGARD TO ANY
PRINCIPLES OF CONFLICTS OF LAWS OF SUCH STATE.
SECTION 9. Enforcement. Each of the parties hereto agrees that
irreparable damage would occur in the event that any of the provisions of this
Agreement were not performed in accordance with their specific terms or were
otherwise breached. It is accordingly agreed that the parties hereto shall be
entitled to an injunction or injunctions to prevent breaches of this Agreement
and to enforce specifically the terms and provisions of this Agreement in any
Delaware state court or any Federal court located in the State of Delaware, this
being in addition to any other remedy to which they are entitled at law or in
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equity. In addition, each of the parties hereto (a) consents to submit itself to
the personal jurisdiction of any Delaware state court or any Federal court
located in the State of Delaware in the event any dispute arises out of or under
or relates to this Agreement or any of the transactions contemplated hereby, (b)
agrees that it will not attempt to deny or defeat such personal jurisdiction by
motion or other request for leave from any such court, (c) agrees that it will
not bring any action, suit or proceeding arising out of or under or relating to
this Agreement or any of the transactions contemplated hereby in any court other
than any Delaware state court or any Federal court located in the State of
Delaware and (iv) waives any right to trial by jury with respect to any action,
suit or proceeding arising out of or under or relating to this Agreement or any
of the transactions contemplated hereby in any Delaware state court or any
Federal court located in the State of Delaware, and hereby further and
unconditionally waives and agrees not to plead or claim in any such court that
any such action, suit or proceeding brought in any such court has been brought
in an inconvenient forum.
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IN WITNESS WHEREOF, CBI has caused this Agreement to be signed by
its officer thereunto duly authorized and GE has signed this Agreement, all as
of the date first written above.
CINCINNATI XXXX INC.
By: /s/ Xxxxxxx X. Xxxxxxxxxxx
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Name: Xxxxxxx X. Xxxxxxxxxxx
Title: President and Chief Executive Officer
GENERAL ELECTRIC PENSION TRUST,
by GENERAL ELECTRIC INVESTMENT CORPORATION,
its investment manager,
By: /s/ Xxxxxx X. Xxxxx
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Name: Xxxxxx X. Xxxxx
Title: Executive Vice President
SCHEDULE A
Number of
Outstanding
Shares of
Stockholder IXC Common Stock
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GE 8,624,517
