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Exhibit B
STOCKHOLDERS' AGREEMENT
STOCKHOLDERS' AGREEMENT, dated as of November 26, 1997 (this
"Agreement"), by and among Teligent, Inc., a Delaware corporation (the
"Company"), Microwave Services, Inc., a Delaware corporation ("MSI"), Telcom-DTS
Investors, L.L.C., a Delaware limited liability company ("Telcom"), and NTTA&T
Investment Inc. ("New Member" and, together with MSI and Telcom, the
"Stockholders"), an indirect wholly owned subsidiary of Nippon Telegraph and
Telephone Corporation, a Japanese corporation ("NTT").
WHEREAS, the Stockholders are parties to the Amended and
Restated Limited Liability Company Agreement, dated as of November 13, 1997 (the
"LLC Agreement"), of Teligent, L.L.C., a Delaware limited liability company (the
"LLC"), entered into pursuant to the Securities Purchase Agreement dated as of
September 30, 1997 by and among the LLC, MSI, Digital Services Corporation, a
Virginia corporation and an affiliate of Telcom, and NTT (the "Purchase
Agreement");
WHEREAS, upon the terms and subject to the conditions of the
Agreement and Plan of Merger, dated as of October 6, 1997 (the "Merger
Agreement"), by and between the Company and the LLC, immediately prior to the
Company's initial public offering of Class A Common Stock (the "IPO") the LLC
will be merged (the "Merger") with and into the Company;
WHEREAS, the Merger Agreement provides that as a result of the
Merger the Stockholders will receive shares of Common Stock of the Company, as
the entity surviving the Merger; and
WHEREAS, the LLC Agreement contemplates, and the parties
hereto have agreed, that following a Conversion Transaction (as defined in the
LLC Agreement), in connection with an IPO, certain rights, privileges and
obligations set forth in the LLC Agreement with respect to the ownership and
governance of the LLC will, to the extent and upon the terms and subject to the
conditions set forth herein, continue to apply with respect to the ownership and
governance of the Company.
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NOW, THEREFORE, in consideration of the premises, and for
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties to this Agreement covenant and agree as
follows:
Section 1. Effectiveness of Agreement. Defined Terms. This
Agreement shall not become effective unless and until the Merger is consummated.
If the Merger Agreement is terminated in accordance with its terms, this
Agreement shall automatically terminate. Capitalized terms used but not defined
herein shall have the respective meanings assigned to such terms in the form of
Certificate of Incorporation of the Company attached as Exhibit I to the Merger
Agreement, which will be effective upon the effectiveness of the Merger (the
"Certificate of Incorporation").
Section 2. Information Made Available. The Company covenants
and agrees with each of MSI, Telcom and New Member that, with respect to MSI, so
long as any shares of Class B-Series 1 Common Stock are outstanding, with
respect to Telcom, so long as any shares of Class B-Series 2 Common Stock are
outstanding, and with respect to New Member, so long as any shares of Class
B-Series 3 Common Stock are outstanding, the Company will use all reasonable
efforts to provide regular information to (and updates thereof), consult with,
and obtain the advice of, representatives of MSI designated by MSI's designees
(the "MSI Directors") to the board of directors of the Company (the "Board of
Directors"), representatives of Telcom designated by Telcom's designee (the
"Telcom Director") to the Board of Directors, and representatives of New Member
designated by New Member's designee (the "New Member Director") to the Board of
Directors, respectively, in connection with ordinary decisions of the Board of
Directors or any committee thereof. This Section 2 shall terminate as to New
Member, and New Member shall have no further rights under such Section, upon New
Member's delivery of, or failure to deliver, the notice required by Section 15.
Section 3. Consultation. The Company covenants and agrees with
New Member and Telcom that, with respect to New Member, so long as any shares of
Class B-Series 3 Common Stock are outstanding, and with respect to Telcom, so
long as any shares of Class B-Series 2
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Common Stock are outstanding, Consultation (as defined below) with New Member or
a representative (the "New Member Representative") designated from time to time
by New Member for such purpose (who need not be the representative described in
Section 12 hereof), and/or with Telcom or a representative (the "Telcom
Representative") designated from time to time by Telcom for such purpose (who
need not be the representative described in Section 12 hereof), respectively,
will be required for any action (each, a "Consultation Event") which (A)
materially changes the fundamental character of the Company's business; (B)
replaces the Company's Chief Executive Officer or Chief Operating Officer; (C)
involves the sale or pledge by the Company of a substantial portion of its
assets or any acquisition, divestiture or merger of the Company with another
entity or any joint venture outside the ordinary course of the Company's
business; or (D) involves the issuance by the Company of shares of Common Stock
or Preferred Stock to any telecommunications carrier (a "Strategic Partner").
"Consultation" shall mean and include reasonable advance notice and advance
disclosure of all material facts regarding the Consultation Event by the Company
to the New Member Representative and/or the Telcom Representative, respectively,
and, in the case of the issuance by the Company of shares of Common Stock or
Preferred Stock to a Strategic Partner, due consideration of any objections of
New Member and/or the Telcom Representative, respectively. New Member and Telcom
shall notify the Company as to who the New Member Representative and the Telcom
Representative, respectively, shall be, and shall provide the Company with the
address, business telephone and facsimile number for such respective persons.
Such persons shall be the New Member Representative and the Telcom
Representative, respectively, until such time as the Company receives written
notice from New Member or Telcom, respectively, stating the name, address,
business telephone and facsimile number of the new New Member Representative or
the new Telcom Representative, respectively. This Section 3 shall terminate as
to New Member, and New Member shall have no further rights under such Section,
upon New Member's delivery of, or failure to deliver, the notice required by
Section 15.
Section 4. Confidential Treatment of Proprietary Information.
Except as provided in Section 14 hereof, in the event any Covered Person (as
hereinafter
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defined) (the "Receiving Party") obtains from any other Covered Person or the
Company (the "Disclosing Party") information relating to the Company in whatever
form which is confidential or proprietary ("Proprietary Information"), the
Receiving Party (i) shall treat all such Proprietary Information as
confidential; (ii) shall use such Proprietary Information only for the purposes
contemplated in this Agreement; (iii) shall protect such Proprietary
Information, whether in storage or in use, with the same degree of care as the
Receiving Party uses to protect its own proprietary information against public
disclosure, but in no case with less than reasonable care; and (iv) shall not
disclose such Proprietary Information to any third party except to such
employees and agents of the Receiving Party who need to know such Proprietary
Information for the purpose of effectuating this Agreement and who have been
informed of the confidential nature of such Proprietary Information. "Covered
Person" shall mean any Stockholder, or any person (other than the Company) that
directly or indirectly, through one or more intermediaries, controls, is
controlled by, or is under common control with, the Company or any Stockholder;
any officers, directors, shareholders, controlling persons, partners, employees,
representatives or agents of any Stockholder or its Affiliates (other than the
Company); any director, officer, employee or agent of the Company or its
Affiliates; or any person who was, at the time of the act or omission in
question, such a person. As used in this Agreement, "Affiliate" means, with
respect to any specified person, a person that directly or indirectly, through
one or more intermediaries, controls, is controlled by, or is under common
control with, the person specified.
Section 5. Exceptions. The provisions of Section 4 of this
Agreement shall not apply to any Proprietary Information which: (i) was in the
public domain on the date hereof or comes into the public domain other than
through the fault or negligence of the Receiving Party; (ii) was lawfully
obtained by the Receiving Party from a third party without breach of this
Agreement and otherwise not in violation of the Disclosing Party's rights; (iii)
was known to the Receiving Party at the time of disclosure of such Proprietary
Information to the Receiving Party by the Disclosing Party and the Receiving
Party was not, at such time, subject to any confidentiality obligation with
respect thereto; (iv) was independ-
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ently developed by the Receiving Party without making use of any Proprietary
Information of the Disclosing Party; or (v) is required to be disclosed pursuant
to law.
Section 6. Return of Proprietary Information. Subject to
Section 14(d) of this Agreement, upon the dissolution of the Company, and in any
event upon the Disclosing Party's request at any time, the Receiving Party
shall: (i) return to the Disclosing Party all documents (including, any copies
thereof) embodying the Disclosing Party's Proprietary Information and (ii)
certify in writing to the Disclosing Party, within ten (l0) days following the
Disclosing Party's request, that all such Proprietary Information has been
returned.
Section 7. Equitable Remedies. Each Stockholder acknowledges
that the extent of damages in the event of the breach of any provision of
Section 4 or 6 hereof would be difficult or impossible to ascertain, and that
there will be available no adequate remedy at law in the event of any such
breach. Each Stockholder therefore agrees that in the event it or any Covered
Person employed by or affiliated with it breaches any provision of Section 4 or
6 hereof, the aggrieved party (including, without limitation, the Company) will
be entitled to injunctive or other equitable relief, in addition to any other
relief to which it may be entitled.
Section 8 CEO as Director. The Stockholders agree to vote, or
act by written consent with respect to, all of their respective shares of Common
Stock in favor of the election of the Chief Executive Officer of the Company as
a member of the Board of Directors.
Section 9. Special Board Votes; Other Board Matters. (a) The
Company and the Stockholders agree that, notwithstanding any provision in the
Company's By-Laws to the contrary, the following actions shall require the
affirmative vote of a majority of the Board of Directors, which, so long as any
shares of Class B-Series 2 Common Stock are issued and outstanding, shall
include the affirmative vote of the Telcom Director and, so long as any shares
of Class B-Series 3 Common Stock are issued and outstanding, shall include the
affirmative vote of the New Member Director:
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(i) any amendment to the Certificate of Incorporation or
By-laws of the Company which materially and adversely affects the rights of
Telcom or New Member in a manner which discriminates against Telcom or New
Member, either individually or with one or more other Stockholders, vis-a-vis
any of the other Stockholders, provided that the affirmative vote of a majority
of the Board of Directors, including only the Telcom Director (and not the New
Member Director), shall be necessary to approve such an amendment which so
affects Telcom (and not New Member), and the affirmative vote of a majority of
the Board of Directors, including only the New Member Director (and not the
Telcom Director), shall be necessary to approve such an amendment which so
affects New Member (and not Telcom);
(ii) any transaction between the Company and any Stockholder
or Affiliate thereof involving an amount in excess of $150,000, except for such
transactions contemplated by this Agreement, the Securities Purchase Agreement
between the Company and Nippon Telegraph and Telephone Corporation dated as of
September 30, 1997 (the "Purchase Agreement") and the Technical Services
Agreement dated as of October 22, 1997 between the Company and NTT America, Inc.
(iii) the appointment of any independent accountants or firm
of independent accountants, other than a nationally recognized accounting firm,
to serve as the Company's auditors; and
(iv) any action by the Company seeking protection under any
bankruptcy or insolvency law
(b) So long as, pursuant to the Certificate of Incorporation, MSI
is entitled to elect a majority of the members of the Board of Directors and to
remove or fill vacancies with respect to such directorships, MSI will use all
reasonable efforts to promptly fill any vacancies in such directorships, however
occurring, and to remove and replace any such director elected by MSI who is or
becomes unwilling or unable to serve as such director.
(c) Without limitation of and subject to Section 4 of Article III
of the Company's By-Laws, the
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Company covenants and agrees with New Member to use all reasonable efforts under
the circumstances to provide the New Member Director with at least 72 hours
prior notice of any special meeting of the Board of Directors. If the New Member
Director is temporarily unavailable, New Member may appoint an alternate to act
in his stead, with full powers of substitution.
Section 10. Committees. (a) The Company and the Stockholders
agree that, so long as any shares of Class B-Series 3 Common Stock are issued
and outstanding, (i) the New Member Director and the New Member Representative
shall have visitation rights at meetings of all significant internal operating
committees of the Board of Directors, if any, and (ii) the New Member Director
shall be a member of any technical, compensation or audit committee, if any, of
the Board of Directors or any other committee designated by the Board of
Directors with the power to negotiate any Consultation Event. In the event no
audit committee of the Board of Directors has been established, the New Member
Director shall have the right to attend, so long as any shares of Class B-Series
3 Common Stock of the Company are issued and outstanding, all meetings involving
the auditor's review of the Company's financial condition and shall have the
right to review and discuss such auditor's reports with such auditor. The New
Member Director and the New Member Representative shall also, so long as any
shares of Class B-Series 3 Common Stock of the Company are issued and
outstanding, have visitation rights with respect to each committee of the Board
of Directors which is established of which the New Member Director is not a
member and shall receive no less than 48 hours prior written notice of each
meeting of any such committee. If, during the course of the meeting of any such
committee, the New Member Director shall determine that the matter being
considered should be considered by the full Board of Directors, such committee
shall thereupon cease its consideration of such matter and such matter shall
thereupon be referred back to the full Board of Directors. This Section l0(a)
shall terminate, and New Member shall have no further rights under such Section,
upon New Member's delivery of, or failure to deliver, the notice required by
Section 15.
(b) The Company and the Stockholders agree that, so long as
any shares of Class B-Series 2 Common
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Stock are issued and outstanding, (i) the Telcom Director and the Telcom
Representative shall have visitation rights at meetings of all significant
internal operating committees of the Board of Directors, if any, and (ii) the
Telcom Director shall be a member of any technical, compensation or audit
committee, if any, of the Board of Directors or any other committee designated
by the Board of Directors with the power to negotiate any Consultation Event. In
the event no audit committee of the Board of Directors has been established, the
Telcom Director shall have the right to attend, so long as any shares of Class
B-Series 2 Common Stock of the Company are issued and outstanding, all meetings
involving the auditor's review of the Company's financial condition and shall
have the right to review and discuss such auditor's reports with such auditor.
The Telcom Director and the Telcom Representative shall also, so long as any
shares of Class B-Series 2 Common Stock of the Company are issued and
outstanding, have visitation rights with respect to each committee of the Board
of Directors which is established of which the Telcom Director is not a member
and shall receive no less than 48 hours prior written notice of each meeting of
any such committee. If, during the course of the meeting of any such committee,
the Telcom Director shall determine that the matter being considered should be
considered by the full Board of Directors, such committee shall thereupon cease
its consideration of such matter and such matter shall thereupon be referred
back to the full Board of Directors.
Section 11. Annual Business Plans and Budgets. The parties
hereto agree that an annual business plan and budget for the Company shall be
prepared by the officers of the Company and submitted to the Board of Directors
for its approval. Each such annual business plan and budget shall contain: (i) a
comprehensive and detailed budget for the upcoming year (including, without
limitation, projected capital expenditures and projected income, expense and
cash flow levels); (ii) such other financial, marketing and other plans and
projections for the upcoming year as the Board of Directors shall deem
appropriate; and (iii) such financial, marketing and other plans and projections
for the upcoming five-year period as the Board of Directors shall deem
appropriate. New Member shall have no further rights under this Section 11 upon
New Member's delivery of, or failure to deliver, the notice required by Section
15.
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Section 12. New Member and Telcom Consultants. The parties
hereto agree that at any meeting of the Board of Directors at which the New
Member Director and/or the Telcom Director, respectively, is present, the New
Member Director and/or the Telcom Director, respectively, may each invite a
representative designated by New Member (and who is employed by New Member or an
Affiliate of New Member) or Telcom (and who is employed by Telcom or an
Affiliate of Telcom), respectively, to attend and consult and advise the New
Member Director or the Telcom Director, respectively, on any matter; provided,
that such respective representatives agree with the Company in writing to be
bound by Sections 4, 5, 6 and 7 hereof as if such representatives were Covered
Persons for purposes of such Sections.
Section 13. Agreement to Hold. Each Stock holder agrees that,
for the two-year period immediately following the date of the LLC Agreement,
each will continue to hold no less than 50% of its interest in the Company which
it owns immediately following the Merger; provided, that the foregoing agreement
and all other restrictions imposed on the ability of New Member or Telcom,
respectively, to transfer their respective interests in the Company, except
those imposed by law, shall lapse and be null, void and without further effect,
if a Consultation Event occurs even though New Member or Telcom, respectively,
have objected thereto; and provided, further, that if at the time the agreement
contained in this Section 13 shall have lapsed and become null and void and
without further effect with respect to Telcom pursuant to the immediately
preceding proviso, MSI is not entitled, pursuant to the Certificate of
Incorporation, to elect a majority of the members of the Board of Directors,
then the agreement contained in this Section 13 shall automatically lapse and
become null and void and without further effect with respect to MSI.
Section 14. New Member Information Right.
(a) Secunded Employees. So long as any shares of Class
B-Series 3 Common Stock of the Company are issued and outstanding, New Member
and its Affiliates shall have the right, at their expense, to secund to the
Company employees of New Member or its Affiliates (not exceeding a total of five
such employees in any three
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month period) to observe the Company's operations, including its technical and
marketing activities (such secunded employees being referred to as the "Secunded
Employees"). This Section 14(a) shall automatically terminate and be of no
further force or effect upon New Member's delivery of, or failure to deliver,
the notice required by Section 15.
(b) Status of Secunded Employees; Expenses. The Secunded
Employees shall be and remain employees of New Member (or its Affiliates) for
all purposes, and New Member (or such Affiliates) shall be solely responsible
for, and shall indemnify and hold the Company harmless from and against any
claims for, the payment of any and all salary, bonuses, living expenses, travel
expenses and other compensation, and the provision of all retirement, health
care, insurance and other benefits to such Secunded Employees. New Member (or
its Affiliate) shall be solely responsible for, and shall indemnify and hold the
Company harmless from and against any claims for, the payment of any taxes or
governmental charges of any kind, including, without limitation, withholding
taxes, payroll taxes or unemployment or worker's compensation insurance, with
respect to any such Secunded Employees. The Secunded Employees shall, at the
Company's expense, be provided, with reasonable office space and standard
office equipment at the Company's facilities to the extent reasonably necessary
for them to carry out their intended purposes as described in Subsection 14(c)
below.
(c) Purpose of Secunded Employees. The Company and New Member
acknowledge that the Secunded Employees will be secunded to the Company so that
they may gain knowledge of the operation of fixed wireless communications
services as conducted by the Company, with a view to enabling New Member and its
Affiliates to provide such services to their customers outside the United
States.
(d) Information Rights. To enable New Member and its
Affiliates to benefit from seconding the Secunded Employees as contemplated by
this Section 14, New Member and its Affiliates shall have the non-exclusive,
perpetual, irrevocable royalty free right and license to use, solely in the
business of New Member and its Affiliates outside the United States, such
product, service, marketing, operational and technical information of the
Company as shall be learned or obtained by the Secunded Employ-
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ees; provided that such right and license shall not include any right or license
with respect to any patent (or patent application), utility model, design
patent, copyright, trademark or tradename (or other similar property rights
arising under United States or other laws) relating to specific inventions,
technical devices, software, publications or other works of the Company; and
provided further that if and to the extent such information constitutes
confidential or proprietary information of the Company, New Member will, and
will cause its Affiliates to, use the same efforts as it uses with respect to
its own confidential or proprietary information to keep such information of the
Company confidential. New Member and its Affiliates shall not be entitled to
sublicense, assign or otherwise transfer to any third party any of the rights
granted, or any of the information relating to the Company learned or obtained
by them, pursuant to this Section 14. In addition, the grant of rights by the
Company pursuant to this Section 15 shall be subject to the Company's need to
comply with its other agreements with third parties in existence on the date
hereof relating to any of the Company information referred to in this Section
14, it being understood and agreed that the Company will use all reasonable
efforts to afford New Member and its Affiliates the full benefit of the rights
granted pursuant to this Section 14 in a manner consistent with such other
agreements.
Section 15. New Member Notice of Competition. New Member will
provide the Company with at least 90 days prior written notice of any action
which, pursuant to clause (B) of the proviso to Article FOURTH, Section A(l)(d)
of the Certificate of Incorporation, would result in the automatic conversion of
shares of Class B-Series 3 Common Stock into Class A Common Stock.
Section 16. Foreign Ownership Limitation.
(a) The Company shall have the right to limit New Member's
ownership of the Company to ensure that it does not violate the foreign
ownership limitations imposed by the Communications Act of 1934, as amended, and
by the regulations and decisions of the Federal Communications Commission
(collectively, the "Communications Act").
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(b) If at any time after the date hereof the Company is
required by a change in the law or other circumstance to reduce the level of
foreign ownership of the Company, and absent the Company's ability to obtain a
waiver (which the Company will use all reasonable efforts to obtain), the
Company shall have the right, and shall be required (i) at New Member's
election, to refuse to sell equity interests in the Company or any equity
interests in the License Companies (as such term is defined in the Purchase
Agreement) to any Foreign Owner (as defined below) if any such transaction
would, under the Communications Act or other applicable law, adversely impact
New Member's ability to hold its then existing equity interest in the Company,
and (ii) at the election of any Stockholder, to repurchase such equity interests
in the Company, to the extent necessary to comply with applicable foreign
ownership restrictions, first, from all persons, other than the Stockholders,
who hold Foreign Ownership Interests (as defined below), and thereafter from
each of the Stockholders who hold Foreign Ownership Interests, on a pro rata
basis (based on the percentage of foreign ownership attributable to each
Stockholder), in each case, for an amount in cash (to the extent permitted by
the Delaware corporation law) equal to the "fair market value" of the equity
interests repurchased. If the class of equity interests to be repurchased (or
conversion equivalent) is publicly traded, "fair market value" shall be the
closing price per share or unit of such equity interest (or conversion
equivalent) on the trading day immediately preceding the date of such repurchase
and, if the class of equity interests to be repurchased (or conversion
equivalent) is not publicly traded, "fair market value" shall be determined by
the Board of Directors. In the event that (i) all or any portion of a
Stockholder's equity interest in the Company is to be repurchased pursuant to
this Section 16, (ii) such class of equity interests (or conversion equivalent)
is not publicly traded and (iii) such Stockholder disputes, by notice to the
Company within forty-five (45) days after receipt of notice from the Board of
Directors of the Board of Director's fair market value determination (a
"Valuation Dispute Notice"), then "fair market value" shall be determined by
two appraisers selected by the Company and such Stockholder, respectively,
within forty-five (45) days after delivery of the Valuation Dispute Notice. If
the appraisers chosen by the Company and such Stockholder cannot reach an
agreement within 30 days of
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their appointment, "fair market value" shall be determined by a third appraiser
to be selected by the original appraisers chosen by such Stockholder and the
Company within 10 days thereafter. "Foreign Owner" shall mean: (a) any person
who is a citizen of a country other than the United States, (b) any corporation
or other legal entity organized under the laws of any government other than the
government of the United States or of any state, territory or possession of the
United States, (c) any government other than the government of the United States
or of any state, territory or possession of the United States, or (d) any
representative of any of the foregoing, or any entity owned, or whose capital
was contributed, in whole or in part, by any of the foregoing; and "Foreign
Ownership Interests" shall mean any equity interests in the Company or equity
interests in the License Companies held by a Foreign Owner.
Section 17. New Member Co-Sale Rights. MSI and Telcom agree
that New Member will have co-sale rights with respect to any sale or transfer by
MSI or Telcom, respectively, or their respective Affiliates, to a single buyer
or group, of all of the shares of Common Stock held by MSI or Telcom or such
Affiliates, respectively, which co-sale rights shall be exercisable in
accordance with the same procedures as set forth in Section 10.3(b) of the LLC
Agreement (as if such Section were in effect and references in such Section to
an "Interest" being deemed for this purpose to refer to Common Stock).
Notwithstanding the foregoing, it is acknowledged and agreed that (i) pursuant
to Section 5.8 of the LLC Agreement, upon consummation of the Merger, the
Company, New Member and any person or entity who or which was a member of the
LLC but is not a party hereto will cease to have any rights pursuant to such
Sections 10.3(a) and 10.3(b) of the LLC Agreement, except as provided above in
this Section 17 with respect to New Member, and (ii) the co-sale rights provided
for in this Section 17 will in any event not apply with respect to (A) any sale
or transfer of Common Stock which was acquired pursuant to a public market
transaction, (B) any public sale or distribution of Common Stock, whether
pursuant to a registration statement under the Securities Act, Rule l44
thereunder or otherwise, (C) any sale or transfer of Common Stock to an
Affiliate (as such term is defined in the LLC Agreement) of the selling or
transferring party, provided such Affiliate executes and delivers to the parties
hereto an
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instrument agreeing to be bound hereby or (D) any pledge of, or grant of a
security interest in, Common Stock, provided such pledge or grant meets the
requirements set forth in Section 10.2(a)(ii), (a) (iii) and (a) (iv) of the LLC
Agreement (as if such Section were still in effect).
Section 18. Miscellaneous
(a) This Agreement may be modified or amended at any time by
Stockholders holding shares of Common Stock representing at least 50.01% of the
aggregate number of shares of Common Stock held by all Stockholders; provided,
that without the consent of any Stock holder, the Company may (i) enter into
agreements with permitted assignees pursuant to the terms of this Agreement,
providing in substance that such permitted assignees will be bound by this
Agreement and (ii) amend this Agreement (A) to satisfy any requirements,
conditions, guidelines or opinions contained in any opinion, directive, order,
ruling or regulation of the Securities and Exchange Commission, the Internal
Revenue Service or any other United States federal or state agency, or in any
United States federal or state statute, compliance with which the Board of
Directors deems to be in the best interests of the Company, (B) to change the
name of the Company, and (C) to cure any ambiguity or correct or supplement any
provision of this Agreement that may be incomplete or inconsistent with any
other provision contained herein, so long as any amendment under this clause
(ii) does not adversely affect the investment in the Company of any Stockholder;
provided, further, that, notwithstanding the foregoing provisions of this
Section 18(a), no amendment of this Agreement shall (y) deprive a Stockholder of
any of such Stockholder's rights hereunder without the prior written consent of
such Stockholder, or (z) change the provisions of this Section 18(a) without the
prior written consent of each Stockholder.
(b) Any party to this Agreement may extend the time for the
performance of any of the obligations or other acts of any other party hereto,
or waive compliance with any of the agreements of any other party, in each case
only to the extent that such obligations, agreements and conditions are intended
for its benefit.
(c) This Agreement contains the parties' entire understanding
and agreement with respect to its
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subject matter, and any and all conflicting or inconsistent discussions,
agreements, promises, representations and statements, if any, between the
parties or their representatives that are not incorporated in this Agreement
shall be null and void and are merged into this Agreement.
(d) This Agreement may be executed in two or more
counterparts, each of which shall constitute an original, but all of which
together shall constitute a single agreement.
(e) This Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware, without giving effect to its
conflicts of law principles.
(f) The various section headings are inserted for purposes of
reference only and shall not affect the meaning or interpretation of this
Agreement or any provision hereof.
(g) The provisions of this Agreement shall be severable, and
any invalidity, unenforceability or illegality of any provision or provisions of
this Agreement shall not affect any other provision or provisions of this
Agreement, and each term and provision of this Agreement shall be construed to
be valid and enforceable to the full extent permitted by law.
(h) This Agreement may not be assigned by any party without
the prior written consent of the other parties, provided, that in connection
with any Stock holder's transfer of shares of Class B Common Stock to a
Permitted Transferee of such Stockholder, such Stockholder shall require such
Permitted Transferee to agree in writing to become a "Stockholder" for purposes
of this Agreement and to be bound by the terms hereof.
(i) This Agreement shall inure to the benefit of, and be
binding upon, the parties to it and their respective successors and permitted
assigns. Nothing contained in this Agreement, express or implied, is intended to
confer upon any person other than the parties to it and their respective
successors and permitted assigns, any rights or remedies under or by reason of
this Agreement.
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(j) All notices, requests, demands and other communications
which are required or may be given pursuant to the terms of this Agreement shall
be in writing and shall be deemed given when delivered by hand, fax (provided,
that a confirming copy is sent by a reputable overnight courier service), or
reputable overnight courier service, to the parties at their respective
addresses set forth in Schedule I hereto or to such other address as any party
shall have designated by notice in writing to the other parties.
(k) The Company, MSI and Telcom covenant and agree with New
Member that any and all disputes hereunder involving any of them and New Member
shall be submitted to the same dispute resolution procedures as are set forth in
Section 7.10 of the Purchase Agreement.
(1) Nothing contained herein shall require any Stockholder to
make any further investment in or otherwise contribute capital to the Company.
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IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed as of the date first above written.
TELIGENT, INC.
By: /s/ Xxxx X. Xxxxx
-------------------------------------
Name: Xxxx X. Xxxxx
Title: Chairman & CEO
MICROWAVE SERVICES, INC.
By:/s/ Xxxxx X. Xxxxxxx
-------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Executive Vice President
TELCOM-DTS INVESTORS, L.L.C.
By:/s/ Xxxxxxxx Xxxxx
-------------------------------------
Name: Xxxxxxxx Xxxxx
Title: President
NTTA&T INVESTMENT INC.
By: /s/ Xxxxxxx Xxxxxxxx
-------------------------------------
Name: Xxxxxxx Xxxxxxxx
Title: President
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SCHEDULE I
Addresses for Notices
Teligent, Inc.
0000 Xxxxxxxx Xxxx
Xxxxxx, Xxxxxxxx 00000
Phone: 000-000-0000
Fax: 000-000-0000
Attention: General Counsel
Microwave Services, Inc.
000 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Phone: 000-000-0000
Fax: 000-000-0000
Attention: President and General Counsel
Telcom-DTS Investors, L.L.C.
000 X. Xxxxx Xxxxxx
Xxxxx 000
Xxxxxxxxxx, Xxxxxxxx 00000
Phone: 000-000-0000
Fax: 000-000-0000
Attention: President and General Counsel
NTTA&T Investment Inc.
c/o Nippon Telegraph and Telephone Corporation
Tokyo Opera City Tower
00-0 Xxxxx-Xxxxxxxx 0-xxxxx
Xxxxxxxx, Xxxxx 000-00
XXXXX
Phone: 000-00-0-0000-0000
Fax: 000-00-0-0000-0000
Attention: Mr. Osamue Inoue
and
c/o NTT America, Inc.
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xx. Xxxxxx Xxxxxxxx
Fax: 000-000-0000
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