EXHIBIT 5
LOCK-UP AGREEMENT
THIS LOCK-UP AGREEMENT, dated as of June 7, 2002 (this "Agreement"), is
made by and between NORTEL NETWORKS LLC, a Delaware limited liability company
("Nortel"), and LIBERTY ANTC, INC. (formerly known as TCI TSX, Inc.), a Colorado
corporation ("Liberty").
WHEREAS, pursuant to that certain Registration Rights Agreement dated
as of August 3, 2001 (the "Nortel Registration Rights Agreement"), between
Nortel and Arris Group, Inc., a Delaware corporation and successor in interest
to ANTEC Corporation (the "Company"), Nortel has requested that the Company
register 21,000,000 shares (the "Registered Shares") of Common Stock of the
Company owned by Nortel pursuant to a Registration Statement on Form S-3 filed
with the Securities and Exchange Commission on May 16, 2002 (the "Shelf
Registration");
WHEREAS, Liberty and the Company have entered into that certain
Registration Rights Agreement dated as of October 29, 1996 (the "Liberty
Registration Rights Agreement" and together with the Nortel Registration Rights
Agreement, the "Registration Rights Agreements"); and
WHEREAS, pursuant to the terms and conditions set forth herein, each of
Nortel and Liberty has agreed to waive certain rights such party may have under
their respective Registration Rights Agreements and to restrict the transfer of
shares of Common Stock of the Company held by such party for a limited period of
time.
NOW, THEREFORE, in consideration of the premises and the mutual
representations, warranties, covenants and agreements contained herein, the
parties hereto hereby agree as follows:
SECTION 1
NORTEL OBLIGATIONS
Section 1.1. Lock-Up Agreement. Subject to the satisfaction of the
conditions set forth in Section 3 hereof, Nortel hereby agrees that, during the
Restrictive Period (as defined below), except for sales of Registered Shares
pursuant to the Shelf Registration (including, without limitation, sales made in
connection with a firm commitment underwritten public offering of shares of
Common Stock of the Company pursuant to a prospectus supplement filed in
connection with the Shelf Registration (the "Underwritten Offering") (including
any over-allotment shares)), it shall not (i) exercise its rights to register,
including, without limitation, demand, piggy-back and incidental registration
rights, any of its Registrable Shares (as defined in the Nortel Registration
Rights Agreement) under the Nortel Registration Rights Agreement or (ii) sell,
transfer or otherwise dispose of any shares of Common Stock of the Company held
by Nortel pursuant to Rule 144 promulgated under the Securities Act of 1933, as
amended (the "1933 Act"). As used in this Agreement, the "Restrictive Period"
shall mean the period commencing on the day that the Underwritten Offering is
consummated through the earlier of:
(a) July 31, 2003; and
(b) thirty (30) days following the consummation
of both (i) the refinancing, redemption or maturity of at least 66% of the
original principal amount of those certain 4 1/2% convertible subordinated notes
due 2003 issued by the Company (collectively, the "Notes") and (ii) the
redemption by Arris Interactive (as defined below) of at least 66% of the
original principal amount ($100,000,000) of Nortel's Class B Interest (the
"Membership Interest") in Arris Interactive L.L.C., a Delaware limited liability
company ("Arris Interactive"), plus the dividends accrued on such Membership
Interest.
Section 1.2. Purchasers of Registered Shares Outside the
Underwritten Offering. Following the consummation of the Underwritten Offering,
Nortel hereby further agrees to cause any transferee of the Registered Shares
not sold by Nortel in the Underwritten Offering to be bound by the provisions of
this Agreement to the same extent as Nortel as if such person had been an
original signatory hereunder.
Section 1.3. Option Agreement. In the event the Underwritten
Offering is consummated by June 30, 2002, Nortel hereby agrees to enter into an
option agreement with Arris Interactive whereby Arris Interactive shall have the
right to redeem the Membership Interest from Nortel at specified discounts
through June 30, 2003.
SECTION 2
LIBERTY OBLIGATIONS
Section 2.1. Lock-Up Agreement. Subject to the satisfaction of the
conditions set forth in Section 3 hereof, Liberty hereby agrees that, during the
Restrictive Period, it shall not (i) exercise its rights to register, including,
without limitation, demand, piggy-back and incidental registration rights, any
of its Registrable Shares (as defined in the Liberty Registration Rights
Agreement) under the Liberty Registration Rights Agreement or (ii) sell,
transfer or otherwise dispose of any shares of Common Stock of the Company held
by Liberty pursuant to Rule 144 promulgated under the 1933 Act.
Section 2.2. Waiver of Registration Rights. Upon the execution of
this Agreement, Liberty shall immediately withdraw its request to register
shares of Common Stock of the Company owned by Liberty in connection with the
Underwritten Offering, not exercise any and all registration rights with respect
thereto, and, until the earliest of (i) June 30, 2002, (ii) the termination of
the Underwritten Offering or (iii) the consummation of the Underwritten
Offering, not exercise any further registration rights, including, without
limitation, demand, piggy-back and incidental registration rights, it may have
with respect to its Registrable Shares.
SECTION 3
CONDITIONS
The restrictions set forth in Sections 1.1 and 2.1 of this Agreement
shall not be effective unless and until the following conditions have been met:
(i) the Underwritten Offering shall have been consummated by June 30, 2002; (ii)
Nortel and the Company shall have agreed to amend
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that certain Amended and Restated Investor Rights Agreement dated as of April 9,
2001, as amended by the First Amendment to Amended and Restated Investor Rights
Agreement dated as of August 3, 2001, among Nortel, the Company and Nortel
Networks Inc.; and (iii) Nortel shall have entered into an option agreement with
Arris Interactive whereby Arris Interactive shall have the right to redeem the
Membership Interest from Nortel at specified discounts through June 30, 2003.
SECTION 4
MISCELLANEOUS
Section 4.1. Notices. All notices, requests and other
communications hereunder to a party shall be in writing and shall be deemed
given if personally delivered, telecopied (with confirmation) or three business
days after being mailed by registered or certified mail (return receipt
requested) or one business day after being delivered by overnight courier to
such party at its address set forth below or such other address as such party
may specify by notice to the parties hereto:
if to Investor:
Nortel Networks LLC
000 Xxxxxx Xxx
Xxxxxxxxx, XX 00000
Attn: Legal Department
Facsimile: (000) 000-0000
and with a copy to:
Nortel Networks Inc.
0000 Xxxxxxxx Xxxx.
Xxxxxxxxxx, XX 00000
Attn: Xxxxxx Xxxxxxx
Facsimile: (000) 000-0000
and
Nortel Networks Limited
0000 Xxxxx Xxxx
Xxxxx 000
Xxxxxxxx, Xxxxxxx, Xxxxxx X0X 0X0
Attn: Xxxxx Xxxxxxx
Facsimile:
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if to Liberty:
Liberty ANTC, Inc.
c/o Liberty Media Corporation
00000 Xxxxxxx Xxxxxxxxx
Xxxxxxxxx, XX 00000
Attn: General Counsel
Facsimile: (000) 000-0000
and with a copy to:
Xxxxx Xxxxx L.L.P.
00 Xxxxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxx X'Xxxxxxxx
Facsimile: (000) 000-0000
Section 4.2. Entire Understanding; Amendment. This Agreement sets
forth the entire agreement between the parties hereto with respect to the
matters provided herein. Any provision of this Agreement may be amended or
modified in whole or in part at any time by an agreement in writing between the
parties hereto.
Section 4.3. Counterparts. This Agreement may be executed in two
or more counterparts, each of which shall be deemed to constitute an original
but all of which when taken together shall constitute one and the same
instrument.
Section 4.4. Governing Law. This Agreement shall be governed by,
and interpreted in accordance with, the laws of the State of Delaware, without
regard to the conflict of law principles thereof.
Section 4.5. Specific Performance. Each party hereto acknowledges
that, in view of the uniqueness of the transactions contemplated by this
Agreement, the other party would not have an adequate remedy at law for money
damages in the event that this Agreement has not been performed in accordance
with its terms. Accordingly, each party hereby agrees that the other party shall
be entitled to specific enforcement of the terms hereof in addition to any other
remedy to which it may be entitled, at law or in equity.
Section 4.6. Severability. Any term or provision of this Agreement
which is invalid or unenforceable in any jurisdiction shall, as to that
jurisdiction, be ineffective to the extent of such invalidity or
unenforceability without rendering invalid or unenforceable the remaining terms
and provisions of this Agreement or affecting the validity or enforceability of
any of the terms or provisions of this Agreement in any other jurisdiction. If
any provision of this Agreement is so broad as to be unenforceable, the
provision shall be interpreted to be only so broad as it is enforceable.
Section 4.7. No Third Party Beneficiaries. This Agreement shall
not confer any rights or remedies upon any person other than the parties to this
Agreement and their respective successors and permitted assigns.
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IN WITNESS WHEREOF, this Agreement has been executed on behalf of the
parties hereto by their respective duly authorized officers, all as of the date
first above written.
NORTEL NETWORKS LLC
By: /s/ Xxxxxxx X. Xxxxx
------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Assistant Secretary
LIBERTY ANTC, INC.
By: /s/ Xxxxxxxxx X. Xxxxxxxxx
------------------------------
Name: Xxxxxxxxx X. Xxxxxxxxx
Title: Senior Vice President
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