REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT, dated as of January 8, 1998,
between AT&T Corp., a New York corporation (the "Company"), on the one hand, and
Tele-Communications, Inc., a Delaware corporation ("TCI"), Xxx Communications,
Inc., a Delaware corporation ("Cox") and Comcast Corporation, a Pennsylvania
corporation ("Comcast") (TCI, Cox and Comcast, collectively, the "Cable
Stockholders"), on the other hand.
WHEREAS, pursuant to an Agreement and Plan of Merger, dated as
of January 8, 1998 (the "Merger Agreement"), by and among the Company, TA Merger
Corp., a Delaware corporation ("Merger Sub") and a wholly owned subsidiary of
the Company, and Teleport Communications Group Inc., a Delaware corporation
("Teleport"), Merger Sub has agreed to merge (the "Merger") into Teleport, and
pursuant thereto shares of Class A Common Stock, par value $.01 of Teleport
("Teleport Class A Stock"), and shares of Class B Common Stock, par value $.01
of Teleport ("Teleport Class B Stock"), held by the Cable Stockholders will be
converted into shares of Common Stock, par value $1.00 per share of the Company
("Common Stock"); and
WHEREAS, pursuant to a Voting Agreement dated as of January 8,
1998, by and among the Company and the Cable Stockholders, the Company has
agreed to enter into this Agreement to provide certain registration rights to
the Cable Stockholders, effective as of the effective time of the Merger (the
"Effective Time"), with respect to the shares of Common Stock to be received by
them in the Merger.
NOW, THEREFORE, in consideration of the premises and the
mutual agreements set forth herein, the parties agree as follows:
1. Definitions. (a) As used herein, the following terms shall
have the following meanings:
(i) Registrable Securities: (A) the shares of Common Stock to
be acquired by the Cable Stockholders at the Effective Time pursuant to the
Merger Agreement, (B) any securities of the Company issued or issuable with
respect to any Common Stock referred to in subdivision (A) by way of stock
dividend or stock split or in connection with a combination of shares,
recapitalization, merger, consolidation or other reorganization or otherwise,
and (C) subject to Section 2(b), any securities of a Cable Stockholder the value
of which relates to or is based upon the Registrable Securities or securities
which are exchangeable for or convertible into the Registrable Securities, to
the extent such securities require registration by the Company in addition to
registration by the issuer thereof. As to any particular Registrable Securities,
once issued such securities shall cease to be Registrable Securities when (x) a
registration statement with respect to the sale of such securities shall have
become effective under the Securities Act and such securities shall have been
disposed of in accordance with such registration statement, (y) they shall have
been distributed to the public pursuant to Rule 144 or Rule 145 (or any suc-
cessor provision) under the Securities Act or (z) they shall have ceased to be
outstanding.
(ii) Registration Expenses: all expenses incident to the
Company's performance of or compliance with this Agreement, including, without
limitation, all registration, filing and National Association of Securities
Dealers, Inc. fees, all fees and expenses of complying with securities or blue
sky laws, all word processing, duplicating and printing expenses, messenger and
delivery expenses, the fees and disbursements of counsel for the Company and of
its independent public accountants, including the expenses of any special audits
or "comfort" letters required by or incident to such performance and compliance,
premiums and other costs of policies of insurance obtained by the Company
against liabilities arising out of the public offering of Registrable Securities
being registered and (except in the case of Registrable Securities referred to
in Section 1(a)(i)(C)) any fees and disbursements of underwriters customarily
paid by issuers, but excluding fees and disbursements of counsel retained by any
of the Cable Stockholders, premiums and other costs of policies of insurance
obtained by the Cable Stockholders against liabilities arising out of the public
offering of the Registrable Securities being registered, any fees and
disbursements of underwriters customarily paid by sellers of securities who are
not the issuers of such securities, all underwriting discounts and commissions
and transfer taxes, if any, relating to Registrable Securities and, in the case
of Registrable Securities referred to in Section 1(a)(i)(C), any other
registration expenses incident to the registration of the securities issued by
the Cable Stockholder as distinct from the registration of the underlying
Registrable Securities.
(b) Capitalized terms used herein but not otherwise defined
herein shall have the same meaning as in the Merger Agreement.
2. Registration on Request. (a) Request. During the period
commencing on the Effective Time and ending on the second anniversary of the
Effective Time (the "Registration Period"), each Cable Stockholder shall have
the right upon written request (a "Request") to request that the Company effect
the registration under the Securities Act of all or a part of the Registrable
Securities then owned by such Cable Stockholder(s) (but in any event not less
than an aggregate of 5,000,000 shares of Common Stock, as adjusted to reflect
any stock splits, combinations of shares, reclassifications or comparable
transactions, or such lesser number of shares as shall then constitute all of
the Registrable Securities then owned by such Cable Stockholders taking into
account all Registrable Securities to be included in such registration). Upon
receipt of any such Request, the Company will provide notice of such Request in
accordance with Section 8 (the "Registration Notice") to each of the Cable
Stockholders not included in such Request and will use all reasonable efforts
(subject to Section 4(b)) to effect such registration of the Registrable
Securities which the Company has been so requested to register in the Request or
by any other Cable Stockholder within 15 days after delivery of the Registration
Notice (the Cable Stockholders requesting registration shall collectively be
referred to as the "Participating Cable Stockholders"). Each Cable Stockholder
shall be entitled to two Requests during the Registration Period pursuant to
this Section 2, provided that, regardless of whether any securities are offered
or sold pursuant thereto (other than as a result of any action by the Company
pursuant to Section 4(b)), no more than one Request shall be made by each Cable
Stockholder during the first twelve month period of the Registration Period and
no more than one
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Request shall be made by each Cable Stockholder during the remainder of the
Registration Period. (For the avoidance of doubt, no more than a total of six
Requests may be made hereunder.)
The Company may include in any such registration other
securities for sale for its own account or for the account of any other Person;
provided that, if the managing underwriter for the offering shall determine that
the number of shares proposed to be offered in such offering would be reasonably
likely to adversely affect such offering, then the securities to be sold by the
Cable Stockholders shall be included in such registration before any securities
proposed to be sold for the account of the Company or any other Person and
provided further that the Cable Stockholders agree that any reduction in the
number of securities to be offered by the Cable Stockholders pursuant to any
Request shall be on a pro rata basis except that the securities offered by the
Cable Stockholder initiating such Request shall not be reduced to less than 50%
of such securities included in the initial Request unless no securities of any
other Cable Stockholder are included therein. The Cable Stockholder making such
initial Request shall be responsible for any calculations relating to the
foregoing and shall set forth such calculations in a certificate to be delivered
to the Company, on which certificate the Company shall be entitled to rely.
(b) Registration Statement Form. The Company shall effect any
registration requested under this Section 2 by the filing of a registration
statement on such form as the Company may determine; provided that the Company
shall not be obligated to register any securities on a "shelf" registration
statement pursuant to Rule 415 under the Securities Act (or any successor
provisions of such Act) or otherwise to register securities on a continuous or
delayed basis. In the case of the Registrable Securities referred to in Section
1(a)(i)(C), the Company's obligation to effect any such registration shall apply
only to the Registrable Securities underlying the securities to be issued by any
Cable Stockholder, and the applicable Cable Stockholder shall be responsible for
the separate registration of the securities to be issued by such Cable
Stockholder.
(c) Expenses. The Registration Expenses in connection with any
registration which may be requested under this Section 2 shall be borne by the
Company. The Participating Cable Stockholders shall bear the expense of fees and
disbursements of counsel retained by the Participating Cable Stockholders,
premiums and other costs of policies of insurance obtained by the Participating
Cable Stockholders against liabilities arising out of the public offering of the
Registrable Securities, any fees and disbursements of underwriters customarily
paid by sellers of securities, all underwriting discounts and commissions and
transfer taxes, if any, relating to Registrable Securities and any other
expenses that do not constitute Registration Expenses.
(d) Selection of Underwriters. One co-lead managing
underwriter for any registration requested under this Section 2 effected by
means of a firm commitment underwriting shall be selected by the Company, and
shall be reasonably acceptable to the Participating Cable Stockholders, and the
other co-lead managing underwriter shall be selected by the Participating Cable
Stockholders and shall be reasonably acceptable to the Company. Any additional
co-managing underwriters shall be selected by the Company.
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3. Registration Procedures. If the Company is required to use
all reasonable efforts to effect the registration of Registrable Securities
under the Securities Act as provided in Section 2, the Company will as
expeditiously as possible:
(i) prepare and (within 30 days after the receipt of a
Request) file with the SEC the requisite registration statement to
effect such registration and use all reasonable efforts to cause such
registration statement to become effective, provided that before filing
such registration statement or any amendments thereto, the Company will
furnish to the counsel selected by the Participating Cable Stockholders
copies of all such documents proposed to be filed, which documents will
be subject to the review of such counsel before any such filing is
made, and the Company will comply with any reasonable request made by
such counsel to make changes in any information contained in such
documents relating to the Participating Cable Stockholders;
(ii) prepare and file with the SEC such amendments and
supplements to such registration statement and the prospectus used in
connection therewith as may be necessary to maintain the effectiveness
of such registration and to comply with the provisions of the
Securities Act with respect to the disposition of all securities
covered by such registration statement until the earliest of (A) the
termination of this Agreement pursuant to Section 16, (B) such time as
all of such securities have been disposed of and (C) the date which is
60 days after the date of initial effectiveness of such registration
statement;
(iii) furnish to the Participating Cable Stockholders such
number of conformed copies of such registration statement and of each
such amendment and supplement thereto (in each case including all
exhibits), such number of copies of the prospectus contained in such
registration statements and any supplements thereto and any other
prospectus filed under Rule 424 under the Securities Act, in conformity
with the requirements of the Securities Act, and such other documents,
including documents incorporated by reference, as the Participating
Cable Stockholders may reasonably request;
(iv) use all reasonable efforts to register or qualify all
Registrable Securities registered pursuant to such registration
statement under such other securities or blue sky laws of such
jurisdictions as the Participating Cable Stockholders shall reasonably
request, to keep such registration or qualification in effect for so
long as such registration statement remains in effect, and take any
other action which may be reasonably necessary or advisable to enable
the Participating Cable Stockholders to consummate the disposition in
such jurisdictions of the securities owned by the Participating Cable
Stockholders, except that the Company shall not for any such purpose be
required to qualify generally to do business as a foreign corporation
in any jurisdiction wherein it would not but for the requirements of
this subdivision (iv) be obligated to be so qualified, to be subject to
taxation or to consent to general service of process in any such
jurisdiction;
(v) use all reasonable efforts to cause all Registrable
Securities covered by such registration statement to be registered with
or approved by such other governmental
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agencies or authorities as may be necessary to enable the
Participating Cable Stockholders to consummate the disposition of
such Registrable Securities;
(vi) if such registration includes an underwritten public
offering, furnish to the Participating Cable Stockholders a signed
counterpart, addressed to the Participating Cable Stockholders (and the
underwriters), of (x) an opinion of counsel for the Company, dated the
date of the closing under the underwriting agreement, and (y) a
"comfort letter", dated the effective date of such registration
statement (and a supplement to such "comfort letter" dated the date of
the closing under the underwriting agreement), signed by the
independent public accountants who have certified the Company's
financial statements included in such registration statement, covering
substantially the same matters with respect to such registration
statement (and the prospectus included therein) and, in the case of the
accountants' letter, with respect to events subsequent to the date of
such financial statements, as are customarily covered in opinions of
issuer's counsel and in accountants' letters delivered to the
underwriters in underwritten public offerings of securities and, in the
case of the accountants' letter, such other financial matters, as the
Participating Cable Stockholders (or the underwriters, if any) may
reasonably request;
(vii) promptly notify the Participating Cable Stockholders at
any time when the Company becomes aware that a prospectus relating to
Registrable Securities is required to be delivered under the Securities
Act, of the happening of any event as a result of which the prospectus
included in such registration statement, as then in effect, includes an
untrue statement of a material fact or omits to state any material fact
required to be stated therein or necessary to make the statements
therein not misleading in the light of the circumstances under which
they were made, and at the request of the Participating Cable
Stockholders (and subject to Section 4(b)(ii)) promptly prepare and
furnish to the Participating Cable Stockholders a reasonable number of
copies of a supplement to or an amendment of such prospectus as may be
necessary so that, as thereafter delivered to the purchasers of such
securities, such prospectus shall not include an untrue statement of a
- material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading in
the light of the circumstances under which they were made;
(viii) otherwise use all reasonable efforts to comply with the
Securities Act and the Exchange Act and with all applicable rules and
regulations of the SEC, and make available to its security holders, as
soon as reasonably practicable, an earnings statement covering the
period of at least twelve months, but not more than eighteen months,
beginning with the first full calendar month after the effective date
of such registration statement, which earnings statement shall satisfy
the provisions of Section 11(a) of the Securities Act, and not file any
amendment or supplement to such registration statement or prospectus to
which the Participating Cable Stockholders shall have reasonably
objected on the grounds that such amendment or supplement does not
comply in all - material respects with the requirements of the
Securities Act;
(ix) provide a transfer agent and registrar for all
Registrable Securities covered
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by such registration statement not later than the effective date of
such registration statement; and
(x) use all reasonable efforts to list all Common Stock
covered by such registration statement on any securities exchange on
which any of the Common Stock is then listed.
In the case of any underwritten offering involving at least $1 billion in fair
market value of shares of Common Stock (as estimated by the Company in good
faith based on the market value of the Shares at the time of the Request), the
Company will participate in customary "roadshow" presentations as reasonably
requested by the co-lead managing underwriters; provided however that Company
shall not be required so to participate more than one time during the first year
of the Registration Period or more than one time during the remainder of the
term hereof. In any event, the identity of the officers of the Company
participating therein (which need not be senior executive officers) and the
number of cities visited shall be reasonably acceptable to the Company.
The Company may require the Participating Cable Stockholders to furnish the
Company such information regarding the Participating Cable Stockholders and the
distribution of such securities as the Company may from time to time reasonably
request in writing for the purpose of registering the Registrable Securities
pursuant to a Request hereunder. With respect to Registrable Securities referred
to in Section 1(a)(i)(C), the requirements of this Section 3 shall relate only
to the Registrable Securities underlying the securities to be issued by the
applicable Cable Stockholder.
Each Cable Stockholder agrees by acquisition of the
Registrable Securities that upon receipt of any notice from the Company of the
happening of any event of the kind described in subdivision (vii) of this
Section 3, such Participating Cable Stockholder will forthwith discontinue its
disposition of Registrable Securities pursuant to the registration statement
relating to such Registrable Securities until the Participating Cable
Stockholder's receipt of the copies of the supplemented or amended prospectus
contemplated by subdivision (vii) of this Section 3 and, if so directed by the
Company, will deliver to the Company (at the Company's expense) all copies then
in the Participating Cable Stockholder's possession, other than permanent file
copies, of the prospectus relating to such Registrable Securities current at the
time of receipt of such notice. Any delay pursuant to this paragraph shall toll
on a day for day basis the running of the 60 day period referred to in Section
3(ii) hereof.
4. (a) Requested Underwritten Offerings. If requested by the
underwriters for any underwritten offering of Registrable Securities by the
Participating Cable Stockholders under a registration requested pursuant to
Section 2, the Company will enter into a customary underwriting agreement with
such underwriters for such offering, to contain such representations and
warranties by the Company and such other terms as are customarily contained in
agreements of this type, including, without limitation, indemnities to the
effect and to the extent provided in Section 6. The Participating Cable
Stockholders shall be a party to such underwriting agreement
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and may, at their option, require that any or all of the representations and
warranties by, and the other agreements on the part of, the Company to and for
the benefit of such underwriters shall also be made to and for the benefit of
the Participating Cable Stockholders and that any or all of the conditions
precedent to the obligations of such underwriters under such underwriting
agreement be conditions precedent to the obligations of the Participating Cable
Stockholders. The Participating Cable Stockholders shall not be required to make
any representations or warranties to or agreement with the Company or the
underwriters other than representations, warranties or agreements regarding the
Participating Cable Stockholders, their ownership of the Registrable Securities
and their intended method of distribution and any other representation required
by law. In the case of Registrable Securities referred to in Section 1(a)(i)(C),
the foregoing shall apply only to the Registrable Securities underlying the
securities to be issued by a Cable Stockholder, and the applicable Cable
Stockholder will be responsible for the underwriting agreement relating to the
securities to be issued by it and all obligations and indemnities thereunder
applicable to it as the issuer of such securities.
(b) Holdback Agreement; Postponement. (i) The Cable
Stockholders agree by acquisition of the Registrable Securities, if so required
by the managing underwriter, not to effect any public sale or distribution of
such securities during the seven days prior to and the 90 days after any
underwritten registration by the Company (either for its own account or for the
benefit of the holders of any securities of the Company) has become effective
(or such period of time shorter than 90 days that is sufficient and appropriate,
in the opinion of the managing underwriter, in order to complete the sale and
distribution of securities included in such registration) provided however that
the Company shall not be entitled to require that any Cable Stockholder agree to
the restriction in this Section 4(b)(i) for more than an aggregate of 90 days in
the first year of the Registration Period or for more than 90 days during the
remainder of the term of the Registration Period.
(ii) The Company may postpone any registration which is
requested pursuant to Section 2 or delivery of a prospectus or supplement or
amendment pursuant to Section 3(vii) if it determines that in view of the
advisability of deferring public disclosure of material corporate developments
or other information, the disclosures required to be made pursuant thereto would
not be in the best interests of the Company at that time. In the event the
Company makes any such election, each Cable Stockholder agrees to keep
confidential the fact of such election and any information provided by the
Company in connection therewith. No single postponement pursuant to this Section
4(b)(ii) of any registration which is requested pursuant to Section 2 or
delivery of a prospectus or supplement or amendment pursuant to Section 3(vii)
shall exceed 90 days and all such postponements shall not exceed 180 days in the
aggregate.
5. Preparation of Registration Statement. In connection with
the preparation and filing of the registration statement under the Securities
Act, the Company will give the Participating Cable Stockholders, their
underwriters, if any, and their respective counsel, the opportunity to
participate in the preparation of such registration statement, each prospectus
included therein or filed with the SEC, and each amendment thereof or supplement
thereto. Such opportunity to participate shall include reasonable access for
purposes of due diligence, subject to the execution and delivery of appropriate
confidentiality agreements.
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6. Indemnification. (a) Indemnification by the Company. In the
event of any registration of any Registrable Securities of the Company under the
Securities Act, the Company will, and hereby does, indemnify and hold harmless
the Participating Cable Stockholders, each other Person who participates as an
underwriter in the offering or sale of such securities and each other Person who
controls any such underwriter within the meaning of the Securities Act, against
any losses, claims, damages or liabilities, joint or several, to which the
Participating Cable Stockholders or any such underwriter or controlling person
may become subject under the Securities Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions or proceedings, whether
commenced or threatened, in respect thereof) arise out of or are based upon any
untrue statement or alleged untrue statement of any material fact contained in
the registration statement under which such Registrable Securities were
registered under the Securities Act, any preliminary prospectus, final
prospectus or summary prospectus contained therein, or any amendment or
supplement thereto, or any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, and the Company will reimburse the Participating Cable
Stockholders and each such underwriter and controlling person for any legal or
any other expenses reasonably incurred by them in connection with investigating
or defending any such loss, claim, liability, action or proceedings; provided
that the Company shall not be liable in any such case to the extent that any
such loss, claim, damage, liability (or action or proceeding in respect thereof)
or expense arises out of or is based upon (i) an untrue statement or alleged
untrue statement or omission or alleged omission made in such registration
statement, any such preliminary prospectus, final prospectus, summary
prospectus, amendment or supplement in reliance upon and in conformity with
written information furnished to the Company by a Participating Cable
Stockholder for use in the preparation thereof, (ii) the use of any prospectus
after such time as the obligation of the Company to keep the same effective and
current has expired, or (iii) the use of any prospectus after such time as the
Company has advised the Participating Cable Stockholder that the filing of a
post-effective amendment or supplement thereto is required, except such
prospectus as so amended or supplemented, and provided further that the Company
shall not be liable to any Person who participates as an underwriter in the
offering or sale of Registrable Securities or any other Person, if any, who
controls such underwriter within the meaning of the Securities Act in any such
case to the extent that any such loss, claim, damage, liability (or action or
proceeding in respect thereof) or expense arises out of the matters described in
(i), (ii) or (iii) above or such Person's failure to send or give a copy of the
final prospectus or supplement to the Persons asserting an untrue statement or
alleged untrue statement or omission or alleged omission at or prior to the
written confirmation of the sale of Registrable Securities to such Person if
such statement or omission was corrected in such final prospectus or supplement.
Such indemnity shall remain in full force and effect regardless of any
investigation made by or on behalf of the Participating Cable Stockholders or
any such underwriter or controlling person and shall survive the transfer of
such securities by the Participating Cable Stockholders. In the case of any
Registrable Securities referred to in Section 1(a)(i)(C), the Company's
indemnity hereunder shall relate only to the Registrable Securities underlying
the securities to be issued by a Cable Stockholder, and the Company shall
otherwise have no indemnity obligations with respect to the securities issued by
the applicable Cable Stockholder or the registration thereof.
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(b) Indemnification by the Participating Cable Stockholders.
The Company may require, as a condition to including any Registrable Securities
of a Participating Cable Stockholder in any registration statement filed
pursuant to Section 2, that the Company shall have received an undertaking
reasonably satisfactory to it from such Participating Cable Stockholder to
indemnify and hold harmless (in the same manner and to the same extent as set
forth in subdivision (a) of this Section 6) the Company, each other
Participating Cable Stockholder, each director and officer of the Company and of
each other Participating Cable Stockholder, and each other Person, if any, who
controls the Company or any other Participating Cable Stockholder, within the
meaning of the Securities Act, with respect to any untrue - statement or alleged
untrue statement of a material fact in or omission or alleged omission to state
a material fact from such registration statement, any preliminary prospectus,
final prospectus or summary prospectus contained therein, or any amendment or
supplement thereto, if such untrue statement or alleged untrue statement or
omission or alleged omission was made in reliance upon and in conformity with
written information furnished to the Company by such Participating Cable
Stockholder for use in the preparation of such registration statement,
preliminary prospectus, final prospectus, summary prospectus, amendment or
supplement provided, however, that a Participating Cable Stockholder shall not
be liable to the extent that the losses, liabilities or expenses arise out of or
are based upon (i) the use by the Company or another Participating Cable
Stockholder of any prospectus after such time as the obligation of the Company
to keep the same effective and current has expired or (ii) the use by the
Company or another Participating Cable Stockholder of any prospectus after such
time as such Participating Cable Stockholder has advised the Company that the
filing of a post-effective amendment or supplement thereto is required with
respect to any information contained in such prospectus concerning such
Participating Cable Holder, except such prospectus as so amended or
supplemented. Such indemnity shall remain in full force and effect regardless of
any investigation made by or on behalf of the Company, each other Participating
Cable Stockholder, or any such director, officer, or controlling person and
shall survive the transfer of such securities by the Participating Cable
Stockholders.
(c) Notices of Claims, etc. Promptly after receipt by an
indemnified party of notice of the commencement of any action or proceeding
involving a claim referred to in the preceding subdivisions of this Section 6,
such indemnified party will, if a claim in respect thereof is to be made against
an indemnifying party, give written notice to the latter of the commencement of
such action, provided that the failure of any indemnified party to give notice
as provided herein shall not relieve the indemnifying party of its obligations
under the preceding subdivisions of this Section 6, except to the extent that
the indemnifying party is actually prejudiced by such failure to give notice. In
case any such action is brought against an indemnified party, unless in such
indemnified party's reasonable judgment a conflict of interest between such
indemnified and indemnifying parties may exist in respect of such claim, the
indemnifying party shall be entitled to participate in and to assume the defense
thereof, jointly with any other indemnifying party similarly notified to the
extent that it may wish, with counsel reasonably satisfactory to such
indemnified party, and after notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof, the
indemnifying party shall not be liable to the indemnified party for any legal or
other expenses subsequently incurred by the latter in connection with the
defense thereof other than reasonable costs of investigation.
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(d) Other Indemnification. Indemnification similar to that
specified in the preceding subdivisions of this Section 6 (with appropriate
modifications) shall be given by the Company and the Participating Cable
Stockholders with respect to any required registration or other qualification of
securities under any Federal or state law or regulation of governmental
authority other than the Securities Act.
(e) Indemnification Payments. The indemnification required by
this Section 6 shall be made by periodic payments of the amount thereof during
the course of the investigation or defense, as and when bills are received or
expense, loss, damage or liability is incurred.
(f) Contribution. If for any reason the foregoing indemnity is
unavailable, or is insufficient to hold harmless an indemnified party, then the
indemnifying party shall contribute to the amount paid or payable by the
indemnified party as a result of the expense, loss, damage or liability, (i) in
such proportion as is appropriate to reflect the relative fault of the
indemnifying party on the one hand and the indemnified party on the other
(determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or omission relates to information supplied
by the indemnifying party or the indemnified party and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such untrue statement or omission), or (ii) if the allocation provided by clause
(i) above is not permitted by applicable law or provides a lesser sum to the
indemnified party than the amount hereinafter calculated, in the proportion as
is appropriate to reflect not only the relative fault of the indemnifying party
and the indemnified party, but also the relative benefits received by the
indemnifying party on the one hand and the indemnified party on the other, as
well as any other relevant equitable considerations. No indemnified party guilty
of fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any indemnifying party
who was not guilty of such fraudulent misrepresentation.
(g) Section 1(a)(i)(C) Offerings. In the case of any
registration of Registrable Securities referred to in Section 1(a)(i)(C) hereof,
it shall be a condition to the Company's obligation to proceed under this
Agreement that the appropriate Cable Stockholder shall provide, in a manner
reasonably satisfactory to the Company, indemnification, contribution and other
rights in favor of the Company, each director and officer of the Company and
each other Person, if any, who controls the Company within the meaning of the
Securities Act with respect to the securities issued by the applicable Cable
Stockholder and the registration thereof, in the same manner and to the same
extent as those rights provided to the Participating Cable Stockholders in the
case of registrations of other Registrable Securities hereunder.
7. Covenants Relating to Rule 144/145. The Company will
prepare and file in a timely manner, information, documents and reports in
compliance with the Exchange Act so as to comply with the requirements of such
Act and the rules and regulations thereunder and will, at its expense, forthwith
upon the request of the Cable Stockholders, deliver to the Cable Stockholders a
certificate, signed by the Company's principal financial officer, stating (a)
the Company's name, address and telephone number (including area code), (b) the
Company's Internal Revenue Service identification number, (c) the Company's SEC
file number, (d) the number
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of shares of Common Stock outstanding as shown by the most recent report or
statement published by the Company, and (e) whether the Company has filed the
reports required to be filed under the Exchange Act for a period of at least 90
days prior to the date of such certificate and in addition has filed the most
recent annual report required to be filed thereunder. If at any time the Company
is not required to file reports in compliance with either Section 13 or Section
15(d) of the Exchange Act, the Company at its expense will forthwith, upon the
written request of the Cable Stockholders, make available adequate current
public information with respect to the Company within the meaning of paragraph
(c)(2) of Rule 144 of the General Rules and Regulations promulgated under the
Securities Act.
8. Notices, etc. All notices, requests, demands or other
communications required by or otherwise with respect to this Agreement shall be
in writing and shall be deemed to have been duly given to any party when
delivered personally (by courier service or otherwise), when delivered by
telecopy if receipt is confirmed by return telecopy, or five days after being
mailed by registered or certified mail, return receipt requested, in each case
to the applicable addresses set forth below:
If to TCI:
Tele-Communications, Inc.
0000 XXX Xxxxxxx
Xxxxxxxxx, XX 00000-0000
Attention: Xxx X. Xxxxxxx, Xx.
Facsimile: (000) 000-0000
with a copy to:
Xxxxx & Xxxxx, L.L.P.
000 Xxxxxxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xxxxxxxxx X. Xxxxxxxxx, Esq.
Facsimile: (000) 000-0000
If to Cox:
Xxx Enterprises, Inc.
0000 Xxxx Xxxxx Xxxxx
Xxxxxxx, XX 00000
Attention: Xxxxx X. Xxxxxxx
Facsimile: (000) 000-0000
with a copy to:
-00-
Xxx, Xxxxxx & Xxxxxxxxx
0000 Xxx Xxxxxxxxx Xxxxxx, X.X.
Xxxxx 000
Xxxxxxxxxx, X.X. 00000
Attention: Xxxxxx X. Xxxxxxx, Esq.
Facsimile: (000) 000-0000
If to Comcast:
Comcast Corporation
0000 Xxxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
Attention: General Counsel
Facsimile: (000) 000-0000
with a copy to:
Xxxxx Xxxx & Xxxxxxxx
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxxxx, Esq.
Facsimile: (000) 000-0000
If to the Company:
AT&T Corp.
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxx Xxxxx, XX 00000
Attention: Vice President-Law
and Corporate Secretary
Facsimile: (000) 000-0000
with a copy to:
Wachtell, Lipton, Xxxxx & Xxxx
00 X. 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxxxx, Esq.
Xxxxxx X. Xxxxxxxxx, Esq.
Facsimile: (000) 000-0000
or to such other address as such party shall have designated by notice so given
to each other party.
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9. Amendments, Waivers, etc. This Agreement may not be
amended, changed, supplemented, waived or otherwise modified or terminated
except by an instrument in writing - signed by the party against whom
enforcement is sought or as expressly provided in Section 16. The failure of any
party to exercise any right, power or remedy provided under this Agreement or
otherwise available in respect hereof at law or in equity, or to insist upon
compliance by any other party with its obligations hereunder, and any custom or
practice of the parties at variance with the terms hereof, shall not constitute
a waiver by such party of its right to exercise any such or other right, power
or remedy or to demand such compliance.
10. Entire Agreement. This Agreement embodies the entire
agreement and understanding between the parties relating to the subject matter
hereof and supersedes all prior - agreements and understandings relating to such
subject matter, including the provisions of Section 4 of the Amended and
Restated Stockholders' Agreement of Teleport dated as of June 26, 1996. The
provisions of this Agreement do not conflict with any other registration rights
agreement to which Parent is a party (it being understood that Parent makes no
representation with respect to any registration rights or similar agreements to
which Teleport or any of its Subsidiaries is subject). After the Effective Time,
none of Teleport, Parent or any of their respective Affiliates will have any
other registration rights obligations to any of the Cable Stockholders or any of
their Affiliates.
11. Severability. If any term of this Agreement or the
application thereof to any party or circumstance shall be held invalid or
unenforceable to any extent, the remainder of this Agreement and the application
of such term to the other parties or circumstances shall not be affected thereby
and shall be enforced to the greatest extent permitted by applicable law.
12. Successors and Assigns. This Agreement shall be binding
upon and shall inure to the benefit of and be enforceable by the parties and
their respective successors and assigns; provided that neither the rights nor
the obligations of any party may be assigned or delegated without the prior
written consent of the other parties.
13. Governing Law. This Agreement and all disputes hereunder
shall be governed by and construed and enforced in accordance with the laws of
the State of New York.
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 any number
of counterparts, each of which shall be deemed to be an original, but all of
which together shall constitute one instrument. Each counterpart may consist of
a number of copies each signed by less than all, but together signed by all, the
parties hereto.
16. Termination. This Agreement shall terminate and be of no
further force and effect upon the later of the expiration of the Registration
Period and the tenth day after
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effectiveness of a registration statement filed pursuant to a Request made
during the Registration Period; provided that, notwithstanding this Section 16,
the provisions of Section 6 shall survive the termination of this Agreement.
IN WITNESS WHEREOF, the parties have duly executed this
Agreement as of the date first above written.
AT&T CORP.
By: /s/ Xxxx X. Xxxxxx
-----------------------------------
Name: Xxxx X. Xxxxxx
Title: President
TELE-COMMUNICATIONS, INC.
By: /s/ Xxxxxxx X. Xxxxxxxxx
-----------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: Senior Vice President
Finance & Treasurer
XXX COMMUNICATIONS, INC.
By: /s/ Xxxxx X. Xxxxx
-----------------------------------
Name: Xxxxx X. Xxxxx
Title: Senior Vice President of
Finance; Chief Financial
Officer
COMCAST CORPORATION
By: /s/ Xxxxxxxx X. Xxxxx
-----------------------------------
Name: Xxxxxxxx X. Xxxxx
Title: Executive Vice President
