CONFIDENTIAL TREATMENT REQUESTED Exhibit 7.02
STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT (this "Agreement") is made as of the
22nd day of October, 2001, by and among Xxx Holdings, Inc., a corporation
organized under the laws of the State of Delaware ("Seller"), Xxx Enterprises,
Inc., a corporation organized under the laws of the State of Delaware ("CEI")
and ********** ("Buyer").
WHEREAS, Seller is the record and beneficial owner of 5,400,000 shares
(the "Shares") of Class A common stock, par value $1.00 per share (the "Class A
common stock"), of Xxx Communications, Inc., a Delaware corporation (the
"Company"); and
WHEREAS, Seller wishes to sell and transfer the Shares to Buyer, and
Buyer wishes to purchase the Shares from Seller, on the terms and conditions
hereinafter set forth;
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants set forth herein, the parties, intending to be legally bound, hereby
agree as follows:
1. Purchase and Sale of the Shares. Subject to the terms and
conditions of this Agreement, Buyer hereby agrees to purchase the Shares from
Seller, and Seller hereby agrees to sell the Shares to Buyer, at a purchase
price of $37.00 per share, for an aggregate purchase price of $199,800,000.00
(the "Purchase Price").
2. Closing. Subject to the satisfaction or waiver of the terms
and conditions set forth herein, the purchase and sale of the Shares shall take
place at the offices of Dow, Xxxxxx & Xxxxxxxxx, PLLC, 0000 Xxx Xxxxxxxxx Xxx.,
X.X., Xxxxx 000, Xxxxxxxxxx, X.X. at 11:00 a.m., Washington, D.C. time, on
October 29, 2001, or at such other time and place as Buyer and Seller mutually
agree (which time and place are designated herein as the "Closing" and the date
thereof as the "Closing Date"). At the Closing, Seller shall deliver stock
certificates representing the Shares to Buyer, and Buyer shall pay the Purchase
Price to Seller by wire transfer of immediately available federal funds to such
account as Seller may designate in writing to Buyer prior to the Closing.
3. Representations and Warranties.
a) Buyer's Representations and Warranties. Buyer
represents and warrants to, and covenants with, Seller as follows:
i) Organization. Buyer is a ********** and
validly existing under the laws of the State of **********.
ii) Authority. Buyer has the requisite *********
power and authority, and has taken all necessary ****** action, required for the
due authorization, execution, delivery and performance by it of this Agreement
and all other documents and instruments contemplated by this Agreement, and to
consummate the transactions contemplated hereby. This Agreement, and all
documents and instruments contemplated by this Agreement, have been duly and
validly
********** Portions of this exhibit have been omitted pursuant to a request for
confidential treatment, and the omitted portions have been filed separately
with the Securities and Exchange Commission.
executed and delivered by Buyer, and constitute valid and binding obligations
of Buyer, enforceable against Buyer in accordance with their respective terms,
except as such enforcement may be limited by bankruptcy or similar laws
affecting the rights of creditors or by general equitable principles.
iii) Consents. The execution, delivery and
performance of this Agreement by Buyer and the consummation by Buyer of the
obligations and transactions contemplated hereby do not require any consent of,
authorization by, filing with, or notice to, any national, federal, state,
municipal, local, territorial, foreign or other government or any department,
commission, board, bureau, agency, regulatory authority or instrumentality
thereof, or any court, judicial, administrative or arbitral body or public or
private tribunal exercising executive, legislative, judicial, regulatory or
administrative functions pertaining to government, or any other individual,
corporation, partnership, joint venture, limited liability company, limited
partnership, association, joint-stock company, trust, unincorporated
organization, or other organization, whether or not a legal entity.
iv) No Conflict With Other Agreements. The
execution, delivery and performance of this Agreement and any other related
documents and instruments contemplated herein, and the consummation of the
transactions contemplated hereby, by Buyer will not (a) conflict with or result
in a breach of any provision of Buyer's **** or other organizational
documents, (b) conflict with or result in the breach of the terms, conditions
or provisions of or constitute a default (or an event which with notice or
lapse of time or both would become a default) under, or give rise to any right
of termination, acceleration or cancellation under, any material agreement,
lease, mortgage, license, indenture or other contract to which Buyer is a party
or by which any of its properties or assets are bound or (c) result in a
violation of any law, rule, regulation, order, judgment or decree (including,
without limitation, U.S. federal and state laws and regulations) applicable to
Buyer or by which any of its properties or assets are bound or affected, except
in the case of clauses (b) or (c), where such conflicts or violations would not
prevent or materially delay its ability to consummate the transactions
contemplated herein.
v) Restrictions on Resale of the Shares. Buyer
understands that the Shares have not been registered under the Securities Act
of 1933, as amended (the "Securities Act"), or the securities laws of any state
and, accordingly, the Shares may not be reoffered, resold or otherwise pledged,
hypothecated or transferred except (x) pursuant to an effective registration
statement under the Securities Act and applicable state securities law or (y)
pursuant to an applicable exemption from the registration requirements of the
Securities Act and any applicable state securities laws.
vi) Accredited Investor. Buyer is an
"accredited investor" as such term is defined in Rule 501(a) of Regulation D
under the Securities Act and is purchasing the Shares for its own account and
not for or on behalf of any other person or entity, and Buyer's purchase of the
Shares is not with a view to any public resale or distribution thereof that
would require registration under the Securities Act.
***** Portions of this exhibit have been
omitted pursuant to a request for confidential treatment, and the omitted
portions have been filed separately with the Securities and Exchange Commission.
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vii) Investor Qualifications. Buyer can bear the
economic risk of its investment in the Shares and has such knowledge and
experience in business and financial matters so as to enable it to understand
and evaluate the risks of and form an investment decision with respect to its
investment in the Shares.
viii) Legend on Stock Certificates. Buyer
understands that the certificates representing the Shares shall bear the legend
set forth on Exhibit A hereto.
ix) No Brokers. No person acting on behalf of,
or under the authority of, Buyer is or will be entitled to any broker's or
finder's fee or commission in connection with the transactions contemplated by
this Agreement.
b) Seller's and CEI's Representations and Warranties.
Seller and CEI represent and warrant to, and covenant with, Buyer as follows:
i) Organization. Each of Seller and CEI is a
corporation duly organized, validly existing and in good standing under the
laws of the State of Delaware. Seller is a wholly-owned subsidiary of CEI.
ii) Authority. Each of Seller and CEI has the
requisite corporate power and authority, and has taken all necessary corporate
action, required for the due authorization, execution, delivery and performance
by it of this Agreement and all other documents and instruments contemplated by
this Agreement, and to consummate the transactions contemplated hereby. This
Agreement, and all documents and instruments contemplated by this Agreement,
have been duly and validly executed and delivered by Seller and CEI, and
constitute the valid and binding obligations of Seller and CEI, enforceable
against Seller and CEI in accordance with their respective terms, except as
such enforcement may be limited by bankruptcy or similar laws affecting the
rights of creditors or by general equitable principles.
iii) Shares. Seller owns and has valid,
marketable and unencumbered title to the Shares, free and clear of any security
interest, mortgage, pledge, lien, charge, restriction (including any
restriction on transfer, other than restrictions on transfer under the federal
securities laws) or encumbrance of any nature whatsoever (collectively,
"Liens"). Except for this Agreement, neither Seller nor CEI is a party to any
option, warrant, right, contract, call, put or other agreement or commitment
providing for the disposition or acquisition of any of the Shares. Upon
delivery by Seller of the Shares to Buyer at the Closing, valid, marketable and
unencumbered title to the Shares, free and clear of any Lien, will pass to
Buyer. The Shares have been duly authorized, validly issued and are fully paid
and nonassessable.
iv) Outstanding Common Stock; Repurchases. As
of September 30, 2001, the Company had 572,852,365 shares of its Class A common
stock outstanding and since September 30, 2001, the Company has not engaged in
any repurchases of shares of its Class A common stock.
v) Listing. The Shares have been listed and
admitted to trading on the New York Stock Exchange.
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vi) Consents. The execution, delivery and
performance of this Agreement by Seller and CEI and the consummation by Seller
and CEI of the obligations and transactions contemplated hereby do not require
any consent of, authorization by, exemption from, filing with, or notice to,
any national, federal, state, municipal, local, territorial, foreign or other
government or any department, commission, board, bureau, agency, regulatory
authority or instrumentality thereof, or any court, judicial, administrative or
arbitral body or public or private tribunal exercising executive, legislative,
judicial, regulatory or administrative functions pertaining to government, any
stock exchange or any other individual, corporation, partnership, joint
venture, limited liability company, limited partnership, association,
joint-stock company, trust, unincorporated organization, or other organization,
whether or not a legal entity, except for such reports with respect to this
transaction as may be required to be filed by Seller and CEI with the
Securities and Exchange Commission (the "SEC") under the Securities Exchange
Act of 1934, as amended, and the rules and regulations of the SEC promulgated
thereunder.
vii) No Conflict With Other Agreements. The
execution, delivery and performance of this Agreement and any other related
documents and instruments contemplated herein, and the consummation of the
transactions contemplated hereby, by Seller and CEI will not (a) conflict with
or result in a breach of any provision of Seller's or CEI's certificate of
incorporation or bylaws, (b) conflict with or result in the breach of the
terms, conditions or provisions of or constitute a default (or an event which
with notice or lapse of time or both would become a default) under, or give
rise to any right of termination, acceleration or cancellation under, any
material agreement, lease, mortgage, license, indenture or other contract to
which Seller or CEI is a party or by which any of their respective properties
or assets are bound or (c) result in a violation of any law, rule, regulation,
order, judgment or decree (including, without limitation, U.S. federal and
state laws and regulations) applicable to Seller or CEI or by which any of
their respective properties or assets are bound or affected, except in the case
of clauses (b) or (c), where such conflicts or violations would not prevent or
materially delay its ability to consummate the transactions contemplated
herein.
viii) SEC Reports. To the best knowledge of
Seller and CEI, the registration statements, reports and other documents filed
by the Company with the SEC during the twelve month period preceding the date
of this Agreement (the "SEC Reports") have been duly and timely filed, were in
substantial compliance with the requirements of their respective forms when
filed, were complete and correct in all material respects as of the dates at
which the information was furnished, and contained (as of such dates) no untrue
statement of a material fact or omitted to state a material fact necessary in
order to make the statements made therein, in light of the circumstances in
which they were made, not misleading. To the best knowledge of Seller and CEI,
since June 30, 2001, there has been no change in the financial condition,
results of operations, business or properties of the Company that, individually
or in the aggregate, has had, or could be reasonably expected to have, a
material adverse effect on the Company and its subsidiaries, taken as a whole.
ix) No Brokers. No person acting on behalf of,
or under the authority of, Seller, CEI or the Company is or will be entitled to
any broker's or finder's fee or commission in connection with the transactions
contemplated by this Agreement.
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x) No Transfer Taxes. There will not be any
stock transfer taxes due or payable in connection with the transactions
contemplated by this Agreement.
c) Survival of Representations and Warranties. All
representations, warranties and covenants made by Buyer, Seller and CEI
hereunder shall survive the Closing.
4. Conditions Precedent to Obligation of Buyer. The obligation
of Buyer to acquire the Shares is subject to the satisfaction or the waiver by
Buyer of the following conditions prior to, or contemporaneously with, the
Closing, unless otherwise indicated:
a) The representations and warranties made by Seller
and CEI in this Agreement shall be true and correct in all material respects as
of the Closing Date with the same force and effect as though such
representations and warranties had been made on and as of the Closing Date.
b) Seller shall have delivered the Shares in accordance
with Section 2 hereof.
c) The Company shall have executed and delivered to
Buyer a registration rights agreement substantially in the form set forth as
Exhibit B hereto.
d) Seller shall have caused to be delivered to Buyer a
legal opinion of Dow, Xxxxxx & Xxxxxxxxx, PLLC substantially in the form
attached as Exhibit C hereto.
5. Conditions Precedent to Obligations of Seller. The obligation
of Seller to sell the Shares is subject to the satisfaction or the waiver by
Seller of the following conditions prior to, or contemporaneously with, the
Closing, unless otherwise indicated:
a) The representations and warranties made by Buyer in
this Agreement shall be true and correct in all material respects as of the
Closing Date with the same force and effect as though such representations and
warranties had been made on and as of the Closing Date.
b) Buyer shall have paid the Purchase Price in
accordance with Section 2 hereof.
6. Confidentiality. No party may disclose to any person any of
the terms, conditions or other facts respecting the transactions contemplated
by this Agreement without the prior consent of the other party, except as
required by applicable law.
7. Governing Law; Severability. This Agreement and all disputes
hereunder shall be governed by and construed and enforced in accordance with
the laws of the State of Delaware, excluding that body of law pertaining to
conflicts of law. Should any provision of this Agreement be determined by a
court of law to be illegal or unenforceable, the other provisions shall
nevertheless remain effective and enforceable.
8. Parties in Interest. This Agreement shall be binding upon and
shall inure to the benefit of the parties hereto and their respective permitted
successors and assigns.
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9. Effect and Construction of this Agreement. This Agreement
embodies the entire agreement and understanding of the parties and supersedes
any and all prior agreements, arrangements and understandings relating to the
subject matter hereof. No amendment, no waiver of compliance with any provision
hereof, and no consent provided herein shall be effective unless evidenced by
an instrument in writing, signed by the parties hereto.
10. Notices. All notices, requests and other communications
hereunder must be in writing and will be deemed to have been duly given only if
delivered personally or by facsimile transmission against facsimile
confirmation or mailed by prepaid first class certified mail, return receipt
requested, or mailed by overnight courier prepaid, to the parties at the
following addresses or facsimile numbers:
(i) If to Seller:
Xxx Holdings, Inc.
0000 Xxxxxx Xxxxxx Xxxxxxx, Xxxxx 000
Xxx Xxxxx, XX 00000
Facsimile No.: 000-000-0000
Attn: Xxxxxxx X. Xxxxxx, Assistant Secretary
with a copy to:
Dow, Xxxxxx & Xxxxxxxxx, PLLC
0000 Xxx Xxxxxxxxx Xxxxxx, X.X., Xxxxx 000
Xxxxxxxxxx, X.X. 00000-0000
Facsimile No.: 202-776-2222
Attn: Xxxxxx X. Xxxxxxx
(ii) If to CEI:
Xxx Enterprises, Inc.
0000 Xxxx Xxxxx Xxxxx
Xxxxxxx, Xxxxxxx 00000
Facsimile No.: 000-000-0000
Attn: Xxxxxxx X. Xxxxxxxx, Treasurer
with a copy to:
Dow, Xxxxxx & Xxxxxxxxx, PLLC
0000 Xxx Xxxxxxxxx Xxxxxx, X.X., Xxxxx 000
Xxxxxxxxxx, X.X. 00000-0000
Facsimile No.: 202-776-2222
Attn: Xxxxxx X. Xxxxxxx
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(iii) If to Buyer, to:
**********
**********
**********
Facsimile No.: **********
Attn: **********
with a copy to:
Xxxxxxxx & Xxxxxxxx
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile No.: 000-000-0000
Attn: Xxxx X. Xxxx
All such notices, requests and other communications will (i) if delivered
personally to the address as provided in this Section, be deemed given upon
delivery, (ii) if delivered by facsimile transmission to the facsimile number
as provided for in this Section, be deemed given upon facsimile confirmation,
(iii) if delivered by mail in the manner described above to the address as
provided for in this Section, be deemed given on the earlier of the third
business day following mailing or upon receipt and (iv) if delivered by
overnight courier to the address as provided in this Section, be deemed given
on the earlier of the first business day following the date sent by such
overnight courier or upon receipt (in each case regardless of whether such
notice, request or other communication is received by any other person to whom
a copy of such notice is to be delivered pursuant to this Section). Any party
from time to time may change its address, facsimile number or other information
for the purpose of notices to that party by giving notice specifying such
change to the other parties hereto (provided that any such notice shall be
deemed given only upon receipt).
11. Further Instruments. The parties agree to execute such
further instruments and to take such further action as may be reasonably
necessary to carry out the purposes and intent of this Agreement.
12. Assignment. No party may assign any right or obligation
hereunder without the prior written consent of the other party hereto.
13. Expenses. Each party to this Agreement shall bear its own
fees and expenses in connection with the sale of the Shares and the
negotiation, execution and delivery of this Agreement.
14. Name, Captions. The name assigned this Agreement and the
section captions used herein are for convenience of reference only and shall
not affect the interpretation or construction hereof.
15. Counterparts. This Agreement may be executed in counterparts,
each of which will be deemed an original, but all of which collectively will
constitute one and the same agreement.
[END OF PAGE. SIGNATURES FOLLOW.]
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********** Portions of this exhibit have been omitted pursuant to a request for
confidential treatment, and the omitted portions have been filed separately
with the Securities and Exchange Commission.
IN WITNESS WHEREOF, the parties hereto have executed this Stock
Purchase Agreement as of the date first set forth above.
SELLER:
XXX HOLDINGS, INC.
By: /s/ Xxxxxxx X. Xxxxxxxx
-------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Treasurer
XXX ENTERPRISES, INC.
By: /s/ Xxxxxxx X. Xxxxxxxx
-------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Treasurer
BUYER:
**********
By:
-------------------------------
Name: **********
Title: **********
********** Portions of this exhibit have been omitted pursuant to a request for
confidential treatment, and the omitted portions have been filed separately
with the Securities and Exchange Commission.
EXHIBIT A
CERTIFICATE LEGEND
THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933. THESE SHARES MAY NOT BE SOLD, PLEDGED OR TRANSFERRED IN
THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT (OR AN APPLICABLE EXEMPTION
THEREFROM) OR AN OPINION OF COUNSEL SATISFACTORY TO THE CORPORATION THAT SUCH
REGISTRATION IS NOT REQUIRED.
A-1
EXHIBIT B
REGISTRATION RIGHTS AGREEMENT
[Incorporated by reference to Exhibit 7.04 filed herewith.]
B-1
EXHIBIT C
FORM OF LEGAL OPINIONS
(1) Each of Seller and CEI is a corporation validly existing and in good
standing under the laws of the State of Delaware.
(2) Seller has the requisite corporate power and authority, and has taken
all necessary corporate action, required for the due authorization, execution,
delivery and performance by it of the Purchase Agreement and to consummate the
transactions contemplated thereby. The Purchase Agreement has been duly and
validly executed and delivered by Seller and constitutes the valid and binding
obligation of Seller, enforceable against Seller in accordance with its terms,
except as such enforcement may be limited by bankruptcy or similar laws
affecting the rights of creditors or by general equitable principles.
(3) CEI has the requisite corporate power and authority, and has taken all
necessary corporate action, required for the due authorization, execution,
delivery and performance by it of the Purchase Agreement and the Registration
Rights Agreement and to consummate the transactions contemplated thereby. The
Purchase Agreement and the Registration Rights Agreement have been duly and
validly executed and delivered by CEI and constitute the valid and binding
obligations of CEI, enforceable against CEI in accordance with their respective
terms, except as such enforcement may be limited by bankruptcy or similar laws
affecting the rights of creditors or by general equitable principles.
(4) Assuming that the text of Article 8 of the Uniform Commercial Code
("UCC") as adopted in all relevant jurisdictions is identical in all relevant
respects to the text of Article 8 of the UCC as adopted in the District of
Columbia and the State of Georgia, and assuming that you give value (as that
term is defined in Section 1-201 of the UCC) for the Shares pursuant to the
terms of the Purchase Agreement, that you have control (as that term is defined
in Section 8-106 of the UCC) of certificates for the Shares and that you do not
have notice (as that term is defined in Section 1-201 and Section 8-105 of the
UCC) of any adverse claim (as that term is defined in Section 8-102(a)(1) of
the UCC), you will acquire the Shares free of any such adverse claim. Except
for the Purchase Agreement, to our knowledge, neither Seller nor CEI is a party
to any option, warrant, right, contract, call, put or other agreement or
commitment providing for the disposition or acquisition of any of the Shares.
The Shares have been duly authorized, validly issued and are fully paid and
nonassessable.
(5) The execution, delivery and performance of the Purchase Agreement by
Seller and the consummation by Seller of the obligations and transactions
contemplated thereby do not require under Applicable Law any consent of,
authorization by, exemption from, filing with, or notice to, any federal,
Georgia or District of Columbia government, department, commission, board,
bureau, agency, regulatory authority or instrumentality thereof, or any
federal, Georgia or District of Columbia court, judicial, administrative or
arbitral body or public or private tribunal exercising executive, legislative,
judicial, regulatory or administrative functions pertaining to government,
except for such reports as may be required to be filed by Seller with respect
to the transaction contemplated by the Purchase Agreement with the Securities
and Exchange Commission (the
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"SEC") under the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), and the rules and regulations of the SEC promulgated thereunder.
(6) The execution, delivery and performance of the Purchase Agreement and
the Registration Rights Agreement by CEI and the consummation by CEI of the
obligations and transactions contemplated by the Purchase Agreement do not
require under Applicable Law any consent of, authorization by, exemption from,
filing with, or notice to, any federal, Georgia or District of Columbia
government, department, commission, board, bureau, agency, regulatory authority
or instrumentality thereof, or any federal, Georgia or District of Columbia
court, judicial, administrative or arbitral body or public or private tribunal
exercising executive, legislative, judicial, regulatory or administrative
functions pertaining to government, except for such reports as may be required
to be filed by CEI with respect to the transaction contemplated by the Purchase
Agreement with the SEC under Exchange Act, and the rules and regulations of the
SEC promulgated thereunder and, with respect to the Registration Rights
Agreement, such documents or instruments required to be filed with the SEC, the
National Association of Securities Dealers, Inc. or with state securities
regulators in connection with registrations contemplated thereby.
(7) The execution, delivery and performance of the Purchase Agreement and
any other related documents and instruments contemplated therein and the
consummation of the transactions contemplated thereunder by Seller will not (a)
conflict with or result in a breach of any provision of Seller's certificate of
incorporation or bylaws, (b) conflict with or result in the breach of the
terms, conditions or provisions of or constitute a default (or an event which
with notice or lapse of time or both would become a default) under, or give
rise to any right of termination, acceleration or cancellation under, or
require any consent under any Identified Agreement or (c) result in a violation
of any Applicable Law applicable to Seller or by which any of its properties or
assets are bound or affected, except in the case of clauses (b) or (c), where
such conflicts or violations would not prevent or materially delay its ability
to consummate the transactions contemplated therein.
(8) The execution, delivery and performance of the Purchase Agreement, the
Registration Rights Agreement and any other related documents and instruments
contemplated by the Purchase Agreement, and the consummation of the
transactions contemplated by the Purchase Agreement by CEI will not (a)
conflict with or result in a breach of any provision of CEI's certificate of
incorporation or bylaws, (b) conflict with or result in the breach of the
terms, conditions or provisions of or constitute a default (or an event which
with notice or lapse of time or both would become a default) under, or give
rise to any right of termination, acceleration or cancellation under, or
required any consent under any Identified Agreement or (c) result in a
violation of any Applicable Law applicable to CEI or by which any of its
properties or assets are bound or affected, except in the case of clauses (b)
or (c), where such conflicts or violations would not prevent or materially
delay its ability to consummate the transactions contemplated therein.
(9) CCI is a corporation duly organized, validly existing and in good
standing under the laws of the State of Delaware.
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(10) CCI has the requisite corporate power and authority, and has taken all
necessary corporate action, required for the due authorization, execution,
delivery and performance by it of the Registration Rights Agreement and to
consummate the transactions contemplated thereby. The Registration Rights
Agreement has been duly and validly executed and delivered by CCI and
constitutes the valid and binding obligation of CCI, enforceable against CCI in
accordance with its terms, except as such enforcement may be limited by
bankruptcy or similar laws affecting the rights of creditors or by general
equitable principles.
(11) The execution, delivery and performance of the Registration Rights
Agreement by CCI and the consummation by CCI of the obligations and
transactions contemplated thereby do not require under Applicable Law any
consent of, authorization by, exemption from, filing with, or notice to, any
federal, Georgia or District of Columbia government, department, commission,
board, bureau, agency, regulatory authority or instrumentality thereof, or any
federal, Georgia or District of Columbia court, judicial, administrative or
arbitral body or public or private tribunal exercising executive, legislative,
judicial, regulatory or administrative functions pertaining to government,
except for such documents or instruments required to be filed with the
Securities and Exchange Commission, the National Association of Securities
Dealers, Inc. or with state securities regulators in connection with
registrations contemplated by the Registration Rights Agreement.
(12) The execution, delivery and performance of the Registration Rights
Agreement by CCI will not (a) conflict with or result in a breach of any
provision of CCI's certificate of incorporation or bylaws, (b) conflict with or
result in the breach of the terms, conditions or provisions of or constitute a
default (or an event which with notice or lapse of time or both would become a
default) under, or give rise to any right of termination, acceleration or
cancellation under, or require any consent under, any Identified Agreement or
(c) result in a violation of any Applicable Law applicable to CCI or by which
any of its properties or assets are bound or affected, except in the case of
clauses (b) or (c), where such conflicts or violations would not prevent or
materially delay its ability to consummate the transactions contemplated
therein.
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